Scipio v. Housing Authority of Hartsville et al

Filing 116

ORDER RULING ON REPORT AND RECOMMENDATION. The Court adopts the Report (DE 107 ) and incorporates it here by reference. It is, therefore, ORDERED that that Defendants' motion for summary judgment (DE 88 ) is granted on Plaintiff's 42 U.S.C. § 1982, equal protection under 42 U.S.C. § 1983, and the FHA, 42 U.S.C. §§ 3604 & 3617 claims. Plaintiff's due process claim under the Fourteenth Amendment shall remain. Signed by Honorable Joseph Dawson, III on 03/07/2025. (dsto, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
FLORENCE DIVISION
Eshawn Jessica Scipio,
Plaintiff,
vs.

Case No.: 4:23-cv-1223-JD-TER

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ORDER AND OPINION

Housing Authority of Hartsville, a/k/a )
)
Hartsville Housing Authority
Executive Director, Kim Funderburk, )
in her individual and official
)
capacities; Public Housing Director, )
Tomika Berry, in her individual and )
)
official capacities; Section 8 Clerk,
Tiffany Bishop in her individual and )
)
official capacities,
)
- - - - - - - - -Defendants.
- - - - - - ')

This matter is before the Court with the Report and Recommendation
("Report") of United States Magistrate Judge Thomas E. Rogers, III (DE 107), made
in accordance with 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) of the District
of South Carolina regarding Defendants' Housing Authority of Hartsville et al.'s
("Defendants") Motion for Summary Judgment (DE 88.) 1

The recommendation has no presumptive weight, and the responsibility for making a
final determination remains with the United States District Court. See Mathews v. Weber,
423 U.S. 261, 270-71 (1976). The court is charged with making a de nova determination of
those portions of the Report and Recommendation to which specific objection is made. The
court may accept, reject, or modify, in whole or in part, the recommendation made by the
magistrate judge or recommit the matter with instructions. 28 U.S.C. § 636(b)(l).
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A. Background
The Report sets forth the relevant facts and legal standards, which the Court
incorporates without a complete recitation. In any event, the Court provides this
summary as a brief background.
Plaintiff Eshawn Jessica Scipio ("Scipio" or "Plaintiff") was a tenant in an
apartment owned by the Housing Authority of Hartsville, also known as Hartsville
Housing Authority (HHA), from September 1, 2021, through June 1, 2023. Defendant
Kim Funderburk ("Funderburk") is the Executive Director of the HHA, Defendant
Tomika Berry ("Berry") is the Public Housing Director, and Defendant Tiffany Bishop
("Bishop") is the Section 8 Clerk. Plaintiff asserts that she is of African-American
descent and is the "same in color as" Berry and Bishop. Funderburk "is of a different
color than" Plaintiff. (DE 29, ,r 78.)
Plaintiffs lease agreement with HHA, signed on September 1, 2021, says the
lease term was one month and would be renewed monthly. Her rent was $396.00 per
month. (DE 29, ,r 18.) The lease also provided a late fee of $50 if rent was not paid by
the fifth of each month. (DE 1-1 at 6.) On May 20, 2022, Plaintiff applied for
emergency rental assistance through SC Stay, Covid-19 Housing Assistance. (Id. at
24.)
On June 6, 2022, Plaintiff received a letter from HHA that she was behind in
rent with late fees totaling $942.00, and if she did not pay the balance within 14 days,
eviction proceedings would be initiated. (Id. at 25.) HHA's receipt number 10375

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shows that a payment of $1,192.00 was made on June 28, 2022, leaving a positive
balance of $250.00. (Id. at 27.)
On June 9, 2022, Plaintiff received a letter from the HHA that she had an
appointment for her Annual Redetermination of Rent, Dwelling Unit Size, and
Eligibility on July 14, 2022. (DE 1-1 at 28.) On August 30, 2022, Plaintiff received a
Notice of Rent Adjustment from HHA advising her that her rent would be adjusted
from $396.00 to $607.00 per month effective September 1, 2022. (Id. at 32.) According
to HHA, the adjustment was made because of a family income or composition change.
(Id.)

On December 15, 2022, HHA notified all tenants that it would no longer accept
partial payments and that all accounts must be current by January 15, 2023. (Id. at
37.) On December 19, 2022, Plaintiffs balance was $2,177.85. (Id. at 39.) She paid
$1,921.00, leaving a balance of $256.85. (Id.) Plaintiff was also assessed fines for
violating housekeeping standards. (Id. at 40-41; DE 92-1 at 92.)
Plaintiff applied for the Section 8 Voucher Program on July 10, 2022, and was
approved on January 26, 2023. (DE 1-1 at 48; DE 92-1 at 98.) On January 10, 2023,
Plaintiff filed a housing discrimination complaint form with the HUD Office of Fair
Housing and Equal Opportunity by submitting a HUD Form 903. (DE 1-1 at 71.)
Plaintiff said that she received a response on January 13, 2023, that "the issue raised
was determined to involve the Office of Public and Indian Housing" and that "no
additional action has been taken against the Defendants." (DE 29, ~ 43.)

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On February 13, 2023, Plaintiff received a letter from the HHA stating: "It has
been reported by the Social Security Administration and The National Directory of
New Hires that you have unreported income." (DE 1-1 at 56.) The letter informed
Plaintiff that she needed to come into the office before February 28, 2023, to discuss
setting up a repayment agreement and changing her rent. (Id.) In response, Plaintiff
sent a letter on February 21, 2023, stating that all of her income was provided at the
rent redetermination meeting on July 14, 2022, noting that she had requested repairs
on October 6, 2022, that had not been completed, requesting copies of Enterprise
Income Verification (EIV) reports and her tenant file, and complaining of the landlord
providing notices to tenants by placing them in their mailboxes. (Id. at 58-59.)
That same day, Plaintiff appeared at the HHA office to request a copy of the
EIV reports and her tenant file, but Berry told her that HUD does not allow a tenant
to view their file. (Id. at 66.) Plaintiff again appeared in person at the HHA office on
February 23, 2023, to request the EIV reports and her tenant file, and Funderburk
told her that per HUD, she could not have access to the file. (Id.) Plaintiff also
submitted a rental payment of $707 .00.
On February 28, 2023, HHA sent Plaintiff a Notice of Rent Adjustment, stating
that her rent would be adjusted from $607.00 to $912.00 per month beginning March
1, 2023. (DE 1-1 at 61.) HHA also notified Plaintiff that she owed retroactive rent of
$1,525.00. (Id.) After that, Plaintiff sent a notification to the United States Postal
Service (USPS) that she "[did not] receive this piece of mail" from HHA postmarked
February 28, 2023. (DE 1-1 at 62.)

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On March 6, 2023, HHA notified Plaintiff that her rent for March was late, and
she owed a total of $2,435.85. (Id. at 63.) HHA also told Plaintiff that if rent was not
paid within fourteen days, HHA would initiate legal action for eviction. (Id.) HHA
also advised Plaintiff that she could request a hearing within ten days "in accordance
with the Housing Authority's grievance procedure and to examine the file data that
is directly related to your grievance." (Id.) On March 9, 2023, Plaintiff provided a
letter to HHA requesting a hearing. (DE 1-1 p. 66.) She also submitted her Section 8
Request for Tenancy Approval on March 9, 2023. (DE 1-1 at 52-55.)
On March 17, 2023, HHA sent Plaintiff a letter addressing the concerns she
raised in her previous letters to HHA and notifying her that if she owes money to any
Public Housing Authority (PHA), she is ineligible for assistance with the Section 8
HCV program, and her voucher would be withdrawn. (DE 1-2 at 6-8.) The letter did
not address Plaintiffs request for a hearing. As of March 23, 2023, Plaintiff owed
$3,347.85 to HHA. (DE 1-2 at 12.) Plaintiffs Section 8 voucher was terminated on
March 27, 2023. (DE 92-1 at 75.)
Berry started eviction proceedings on May 11, 2023, and a hearing was held on
May 30, 2023. A writ of ejectment was issued, and Plaintiff vacated her residence on
June 1, 2023. (DE 65-4 at 1.) Plaintiff did not get a hearing on her unreported income
and the increase in her rent despite her request for one on March 9, 2023.
Plaintiff, proceeding pro se, sued Defendants on March 28, 2023. She alleges
causes of action under 42 U.S.C. § 1982, 42 U.S.C. § 1983, and the Fair Housing Act
(FHA), 42 U.S.C. §§ 3604 & 3617. Before the Court is Defendants' Motion for

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Summary Judgment (DE 88). Because Plaintiff is proceeding prose, she was advised
pursuant to Roseboro v. Garrison, 528 F.3d 309 (4th Cir. 1975), that a failure to
respond to Defendants' motion could result in the motion being granted and her
claims dismissed. Plaintiff filed a Response (DE 92).

B. Report and Recommendation
On January 14, 2025, the Magistrate Judge issued the Report recommending
that Defendants' motion for summary judgment be granted on Plaintiffs 42 U.S.C. §
1982, equal protection under 42 U.S.C. § 1983, and the FHA, 42 U.S.C. §§ 3604 &
3617 claims. (DE 107.) However, since Defendants did not address Plaintiffs due
process claim under the Fourteenth Amendment, that claim survives. The Report
found as to Plaintiffs first cause of action for violation of 42 U.S.C. section 1982 that,
among other things:
Plaintiff first speculates that she would have been treated differently if
she was white, but provides no evidence to support this belief. She then
states that Defendants likely treat everyone the same-" white, black,
Puerto Rican, Mexican"-by denying them access to their records. Thus,
Plaintiffs deposition testimony shows no discriminatory intent by
Defendants.
(DE 107 at 10.)
As for Plaintiffs equal protection and FHA claims, the Report found they "fail0
for a lack of evidence that she was treated differently from others who are similarly
situated or that Defendants acted with intentional or purposeful discrimination." (Id.
at 11.) Likewise, as for Plaintiffs section 3617 interference claim, the Report found
that "[t]here is no evidence in the record that Defendants' actions interfered with

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Plaintiffs right to non-discriminatory housing or provision of services." (Id. at 13.) On
June 10, 2024, Plaintiff objected to the Report. (DE 109.)

C. Legal Standard
To be actionable, objections to the Report and Recommendation must be
specific. Failure to file specific objections constitutes a waiver of a party's right to
further judicial review, including appellate review, if the recommendation is accepted
by the district judge. See United States v. Schronce, 727 F.2d 91, 94 & n.4 (4th Cir.
1984). "The Supreme Court has expressly upheld the validity of such a waiver rule,
explaining that 'the filing of objections to a magistrate's report enables the district
judge to focus attention on those issues-factual and legal-that are at the heart of
the parties' dispute."' Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315
(2005) (citing Thomas v. Arn, 474 U.S. 140, 147 (1985) (emphasis added)). In the
absence of specific objections to the Report and Recommendation of the magistrate
judge, this Court is not required to give any explanation for adopting the
recommendation. See Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983).

D. Plaintiff's Objection
Plaintiff makes several objections to the Report, which she references by the
Report's section headings. Plaintiff objects to the "Fact" section of the Report, mainly
challenging whether she owed any other payments on her tenant account. (DE 109 at
2-3.) Yet this objection does not address the substance of the Report's
recommendation on discrimination, even if it is correct. Since a ruling on this dispute
will not affect the outcome of the Report's recommendation, the Court overrules the
same.
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Next, Plaintiff objects to the "Standard of Review" section of the Report. This
section recounts Rule 56, Fed. R. Civ. P., and the relevant standards to apply to the
rule. It appears Scipio believes there are genuine issues of material facts in dispute
or that she is entitled to additional discovery. (DE 109 at 3-8.) Yet Plaintiff offers no
material facts in dispute. The Court also notes that the Magistrate Judge has ruled
on Plaintiffs motion to compel discovery response and has denied the same. (DE 95.)
Since discovery has been completed, the Court overrules this objection.
Plaintiff also objects to the "Discussion" section of the Report. (DE 109 at 914.) Plaintiff contends, among other things, that:
Defendant K. Funderburk acting as 'director, and the boss'; never
possessed any of the HUD mandatory and required reports in February
of 2023, nor in March of 2023; to properly allow the Defendant T. Berry
to conduct a proper interim re-examination of rent and to allow
Defendant T. Bishop to terminate the Plaintiffs' Section 8 Voucher
Number Vl941. As the Defendant K. Funderburk, stated; 'I ran these
reports', for Public Housing and Section 8. The Defendant K.
Funderburk, tenure is not a viable excuse to disregard and discriminate
against the Plaintiff by not only race but not following her own
procedural process outlined by the Defendant own administrative plan.
(DE 109 at 9-10.) But Plaintiffs allegations of financial mismanagement are not
evidence of discrimination by the Defendants. Thus, the Court overrules this
objection since Plaintiff has offered no evidence of racial discrimination.

E. Conclusion
Accordingly, after a thorough review of the Report and Recommendation and
the record in this case, the Court adopts the Report (DE 107) and incorporates it here
by reference.

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It is, therefore, ORDERED that that Defendants' motion for summary
judgment (DE 88) is granted on Plaintiffs 42 U.S.C. § 1982, equal protection under
42 U.S.C. § 1983, and the FHA, 42 U.S.C. §§ 3604 & 3617 claims. Plaintiffs due
process claim under the Fourteenth Amendment shall remain.

IT IS SO ORDERED.

Q~awwruC
Joaphamon,Ili
United States District Judge
Florence, South Carolina
March 7, 2025

NOTICE OF RIGHT TO APPEAL
The parties are hereby notified of the right to appeal this order within thirty
(30) days from this date under Rules 3 and 4 of the Federal Rules of Appellate
Procedure.

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