Blechinger v. Sioux Falls Housing and Redevelopment Commission

Filing 24

ORDER granting 17 Motion for Summary Judgment; denying as moot 23 Motion to Consolidate Cases. Signed by Chief Judge Karen E. Schreier on 11/29/2011. (KC)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
ROBERT F. BLECHINGER,
Plaintiff,
vs.
SIOUX FALLS HOUSING AND
REDEVELOPMENT COMMISSION,
Defendant.

)
)
)
)
)
)
)
)
)
)

Civ. 11-4069-KES

ORDER GRANTING MOTION
FOR SUMMARY JUDGMENT

Plaintiff, Robert F. Blechinger, filed a pro se civil lawsuit against
defendant, Sioux Falls Housing and Redevelopment Commission (Sioux Falls
Housing). Blechinger alleges that Sioux Falls Housing failed to inspect his
apartment from 1997 until 2009, resulting in his apartment being unable to
meet the Housing Quality Standards established by the Department of Housing
and Urban Development (HUD); that Sioux Falls Housing made false
statements to HUD that he smoked in his apartment, and that Sioux Falls
Housing has misrepresented its ability to allow him to maintain his housing
subsidy while he attempts to clean his apartment and bring it into compliance
with the Housing Quality Standards. Blechinger seeks an order compelling
Sioux Falls Housing to immediately approve and begin paying his housing
subsidy while he attempts to clean his apartment and bring it into compliance
with Housing Quality Standards and an order compelling Sioux Falls Housing
to pay the arrearages for his housing subsidy, which he estimates total $3,498.

Sioux Falls Housing moves for summary judgment on Blechinger’s
claims pursuant to Rule 56 of the Federal Rules of Civil Procedure. Blechinger
has not responded to the motion for summary judgment and the time for doing
so has passed.
FACTS
Blechinger is a resident of Prospect Heights Apartments, located at 929
South Blaine Avenue, Sioux Falls, South Dakota.1 He has resided there since
September of 1997. Sioux Falls Housing is a public body established pursuant
to SDCL Ch. 11-7.
When Blechinger first moved into the Prospect Heights Apartments in
September of 1997, he was receiving housing assistance under the Rent
Supplement Program, pursuant to § 221(d)(3) of the National Housing Act,
codified at 12 U.S.C. § 17151(d)(3). At that time, the Rent Supplement Program
was administered directly by HUD in conjunction with the owner of the
Prospect Heights Apartments. Sioux Falls Housing’s only duties under the Rent
Supplement Program were to conduct “initial certification of new tenants
including verification of income, rent computation and completion of all

1

Because Blechinger did not provide a statement of material facts or
respond to Sioux Falls Housing’s statement of material facts, all the facts set
forth in Sioux Falls Housing’s statement of material facts are admitted. See
D.S.D. Civ. LR 56.1D (“All material facts set forth in the movant’s statement of
material facts will be deemed to be admitted unless controverted by the
opposing party’s statement of material facts.”); Docket 18, Defendant’s
Statement of Material Facts.
2

required HUD forms and documents” and “annual and interim recertifications
including all requirements of initial certification.”
In August of 2009, Sioux Falls Housing learned that the owner of the
Prospect Heights Apartments was opting out of the Rent Supplement Program
and was selling the apartments to Kevin Vanpeursem. The sale was finalized in
November of 2009. Because of the prior owner’s decision to opt out of the Rent
Supplement Program, Sioux Falls Housing learned that eligible residents of the
Prospect Heights Apartments who had been receiving housing assistance prior
to the opt out would continue receiving it in the form of Tenant Protection
Vouchers, pursuant to 14 U.S.C. § 1437f.
The Voucher Program is administered by local public housing
authorities, like Sioux Falls Housing. See 24 C.F.R. § 982.1. A tenant must
satisfy the eligibility requirements set forth in 24 C.F.R. § 982.01 to participate
in the Voucher Program. Once the public housing authority has determined
that a tenant is eligible to participate in the Voucher Program, it must then
determine whether the rental unit selected by the tenant satisfies the Housing
Quality Standards set forth in 24 C.F.R. § 982.401. After the public housing
authority has determined that the tenant is eligible and that the rental unit
satisfies the Housing Quality Standards, it enters into a Housing Assistance
Payment contract with the owner of the rental unit, whereby the public
housing authority agrees to pay a portion of the eligible tenant’s rent directly to
the owner. See 24 C.F.R. § 982.305. Until a Housing Assistance Payment

3

contract has been executed, a public housing authority may not make any
housing assistance payments to the owner of the rental unit. See 24 C.F.R.
§ 982.305(c)(2). Nor may a public housing authority enter into a Housing
Assistance Payment contract until it has determined that the rental unit
satisfies the Housing Quality Standards. See 24 C.F.R. § 982.305(a).
When Sioux Falls Housing learned that it would be administering the
voucher program for residents of the Prospect Heights Apartments, it began
inspecting the apartments to ensure that they satisfied the Housing Quality
Standards. Blechinger’s apartment was first inspected in August of 2009.
During the inspection, significant clutter and debris, such as paper, food
cartons, clothing, and other materials covered Blechinger’s stove, obstructed
many of his electrical outlets, and made it difficult to access various parts of
his apartment, including his bathroom. Following the inspection, Sioux Falls
Housing told Blechinger that his apartment did not satisfy Housing Quality
Standards and that he would not receive rental assistance under the Voucher
Program in his current apartment. Blechinger subsequently began a cleanup
effort to bring his apartment into compliance. Sioux Falls Housing has made
several follow-up visits to Blechinger’s apartment since the August 2009
inspection to provide him with guidance on what needs to be done to satisfy
Housing Quality Standards. On two separate occasions, Sioux Falls Housing
employees noted cigarette butts inside Blechinger’s apartment, leading them to
believe that someone was smoking inside the apartment. When asked about

4

the cigarette butts, Blechinger said his girlfriend comes over and smokes. Due
to the accumulation of clutter and debris in Blechinger’s apartment, Sioux
Falls Housing became concerned that someone smoking in Blechinger’s
apartment presented a serious fire hazard. Sioux Falls Housing communicated
this concern to the Sioux Falls Field Office for HUD sometime in late 2009 or
early 2010.
STANDARD OF REVIEW
Rule 56(c) of the Federal Rules of Civil Procedure provides that summary
judgment “should be rendered if the pleadings, the discovery and disclosure
materials on file, and any affidavits show that there is no genuine issue as to
any material fact and that the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(c). Only disputes over facts that might affect the
outcome of the case under the governing substantive law will properly preclude
summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Summary judgment is not appropriate if a dispute about a material fact is
genuine, that is, if the evidence is such that a reasonable jury could return a
verdict for the nonmoving party. Id.
The moving party bears the burden of bringing forward sufficient evidence
to establish that there are no genuine issues of material fact and that the
movant is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477
U.S. 317, 322 (1986). The nonmoving party is entitled to the benefit of all
reasonable inferences to be drawn from the underlying facts in the record. Vette

5

Co. v. Aetna Cas. & Sur. Co., 612 F.2d 1076, 1077 (8th Cir. 1980). The
nonmoving party may not, however, merely rest upon allegations or denials in
its pleadings, but must set forth specific facts by affidavits or otherwise show
that a genuine issue exists. Forrest v. Kraft Foods, Inc., 285 F.3d 688, 691 (8th
Cir. 2002).
Rule 56 of the Federal Rules of Civil Procedure applies to pro se litigants,
despite the liberal construction afforded to their pleadings. Quam v. Minnehaha
Cnty. Jail, 821 F.2d 522 (8th Cir. 1987). The district court is not required to
“plumb the record in order to find a genuine issue of material fact.” Barge v.
Anheuser Busch, Inc., 87 F.3d 256, 260 (8th Cir. 1996).
DISCUSSION
I.

Sioux Falls Housing Did Not Have a Duty to Inspect Blechinger’s
Apartment until August 2009.
Blechinger asserts that Sioux Falls Housing failed to inspect his

apartment from September 1997 until August 2009. Blechinger argues that
because of this failure to inspect his apartment, he is unable to satisfy the
Housing Quality Standards established by HUD. Sioux Falls Housing contends
that it was under no obligation to inspect his apartment during that time
period.
Before August 2009, Blechinger received rental assistance under the Rent
Supplement Program. This program was administered directly by HUD in
conjunction with the owner of the Prospect Heights Apartments. Sioux Falls
Housing’s involvement was limited to the duties set forth in the Administrative
6

Agreement between it and the owner of the Prospect Heights Apartments. Under
the Administrative Agreement, Sioux Falls Housing’s sole responsibilities were
“initial certification of new tenants” and “annual and interim recertifications” of
tenants. The Administrative Agreement between Sioux Falls Housing and
Prospect Heights Apartments specifically provides that the “Prospect Heights
Apartments will be responsible for all other management and maintenance.” See
Docket 20, Affidavit of Shirreen Ranschau at ¶16. Thus, Sioux Falls Housing did
not have a duty to inspect Blechinger’s apartment under the Rent Supplement
Program.
Rather, Sioux Fall Housing’s duty to inspect arose in August 2009, when
it learned that it would be responsible for administering the Voucher Program.
Under the Voucher Program, a public housing authority, like Sioux Falls
Housing, is required to inspect a rental unit and ensure that it satisfies the
Housing Quality Standards set forth in 24 C.F.R. § 982.401, before it can enter
into a Housing Assistance Program contract with the owner of the rental unit
and begin making housing assistance payments. See 24 C.F.R. § 982.305(a)(2).
The public housing authority must inspect the rental unit on a yearly basis to
make sure that it continues to satisfy the Housing Quality Standards. See 24
C.F.R. § 982.405(a).
Blechinger does not appear to base his complaint upon these regulations.
But even if the Voucher Program had been in place before August 2009,
Blechinger would be unable to assert a claim against Sioux Falls Housing for its

7

failure to inspect. The regulations specifically provide that no private cause of
action exists.
Part 982 does not create any right of the family, or any party other
than HUD or the [housing association], to require enforcement of
the HQS requirements by HUD or the [housing association], or to
assert any claim against HUD or the [housing association], for
damages, injunction or other relief, for alleged failure to enforce the
HQS.
24 C.F.R. § 982.406. Thus, while the Voucher Program requires the public
housing authority to inspect a rental unit to ensure that it meets Housing
Quality Standards, it does not permit an individual or family or other third
party to sue HUD or the public housing authority. As a result, Sioux Falls
Housing is entitled to summary judgment on Blechinger’s claim that Sioux Falls
Housing’s failure to inspect his apartment caused Blechinger to lose his housing
subsidy payments.
II.

Sioux Falls Housing Cannot Approve Blechinger’s Participation in the
Voucher Program Until His Apartment Satisfies Housing Quality
Standards.
Blechinger claims Sioux Falls Housing “mispresented” its ability to allow

him to maintain his housing subsidy while he attempted to bring his apartment
into compliance with Housing Quality Standards. Sioux Falls Housing asserts
that the regulations governing the Voucher Program prevent it from approving
Blechinger’s participation in the program until his apartment is in compliance
with Housing Quality Standards. Although Blechinger claims Sioux Falls
Housing misrepresented that he would be able to continue receiving his housing
assistance payments during the cleanup effort, he concedes that Sioux Falls
8

Housing told him that it “could not waive federal regulations” when it denied his
request that his participation in the program be provisionally approved.
Sioux Falls Housing is required to comply with the regulations governing
the Voucher Program. See 24 C.F.R. § 982.52 (“The PHA must comply with HUD
regulations and other HUD requirements for the program.”) (emphasis added).
The first step in the process is determining whether the individual satisfies the
eligibility requirements for participation in the Voucher Program, set forth at 24
C.F.R. § 982.201. Sioux Falls Housing does not dispute that Blechinger satisfies
these requirements.
But the second step of the process is to determine whether the rental unit
selected by the tenant satisfies the Housing Quality Standards set forth at 24
C.F.R. § 982.401. “All program housing must meet the HQS performance
requirements both at commencement of assisted occupancy and throughout the
assisted tenancy.” Id. at § 982.401(a)(3). One requirement is that “[t]he dwelling
unit and its equipment must be in sanitary condition.” Id. at § 982.401(m).
During its initial inspection of Blechinger’s apartment, Sioux Falls Housing
noted significant clutter and debris, such as paper, food cartons, clothing, and
other materials covering Blechinger’s stove, obstructing many of his electrical
outlets, and making it difficult to access various parts of his apartment,
including his bathroom. Consequently, Sioux Falls Housing concluded that the
apartment did not comply with the Housing Quality Standards and informed
Blechinger that it would not be able to provide him assistance with the Voucher

9

Program in his current apartment. Sioux Falls Housing concedes that
Blechinger has engaged in a cleanup effort, but subsequent visits to his
apartment have revealed that further work is needed to bring his apartment up
to the standards required by HUD. Because Blechinger’s apartment is not
sanitary, Sioux Falls Housing had no option but to deny his participation in the
Voucher Program. Section 982.305(a) provides that “[t]he PHA may not give
approval for the family of the assisted tenancy, or execute a HAP contract, until
the PHA has determined that all the following meet program requirements . . .
[t]he unit has been inspected by the PHA and passes HQS.” Regulations further
provide that “[t]he PHA must not pay any housing assistance payment to the
owner [of the rental unit] until the HAP contract has been executed.” Thus,
Sioux Falls Housing cannot make any payments on behalf of Blechinger until it
has entered into a Housing Assistance Program contract with the owner of the
Prospect Heights Apartments, but it may not enter into a contract with the
owner until Blechinger’s apartment satisfies the Housing Quality Standards
established by HUD. Because Blechinger’s apartment does not comply with
Housing Quality Standards, Sioux Falls Housing was required to deny his
request that his participation in the program be provisionally approved during
the cleanup effort. Sioux Falls Housing is, accordingly, entitled to summary
judgment on Blechinger’s claim.

10

III.

The Allegedly False Statements Sioux Falls Housing Made to HUD Are
Not Actionable.
Blechinger’s final claim is that Sioux Falls Housing “misrepresented” to

HUD that someone was smoking in his apartment. Sioux Falls Housing asserts
that on two separate occasions, Sioux Falls Housing employees noticed
cigarette butts in Blechinger’s apartment, leading them to believe someone was
smoking inside the apartment. When asked about the cigarette butts,
Blechinger said his girlfriend comes over and smokes. Sioux Falls Housing
became concerned that someone smoking in Blechinger’s apartment presented
a serious fire hazard due to the cluttered conditions in Blechinger’s apartment.
Sioux Falls Housing reported this concern to the Sioux Falls Field Office for
HUD in late 2009 or early 2010.
Blechinger argues that Sioux Falls Housing’s statements “may constitute
a violation of 18 U.S.C. § 1001,” which provides that:
Except as otherwise provided in this section, whoever, in any
matter within the jurisdiction of the executive, legislative, or
judicial branch of the Government of the United States, knowingly
and willfully–
(1) falsifies, conceals, or covers up by any trick, scheme, or
device a material fact;
(2) makes any materially false, fictitious, or fraudulent
statement or representation; or
(3) makes or uses any false writing or document knowing the
same to contain any materially false, fictitious, or fraudulent
statement or entry,
shall be fined under this title, imprisoned not more than 5 years
or, if the offense involves international or domestic terrorism . . . ,
imprisoned not more than 8 years or both . . . .
11

18 U.S.C. § 1001(a). Even assuming that the statute applies to the present
case, Blechinger has failed to allege that Sioux Falls Housing “knowingly and
willfully” made a “materially false, fictitious, or fraudulent statement or
representation.” The statements were based on observations employees of
Sioux Falls Housing made while inspecting Blechinger’s apartment and were
communicated to HUD out of concern for Blechinger’s safety. Thus, Blechinger
cannot satisfy the elements of 18 U.S.C. § 1001 and defendants are entitled to
summary judgment. See United States v. Lange, 528 F.2d 1280, 1287 n.10 (5th
Cir. 1976) (“It is clear that the word ‘false’ as used in § 1001 must mean more
than simply incorrect or untrue. An intent to deceive or mislead is required
under the act[.]”). (internal citations omitted).
It also appears that Blechinger may be attempting to assert a state-law
claim for slander. Under South Dakota law,
Slander is a false and unprivileged publication, other than libel, which:
(1) charges any person with crime, or with having been indicted,
convicted, or punished for crime;
(2) imputes to him the present existence of an infectious,
contagious, or loathsome disease
(3) tends to directly injure him in respect to his office, profession,
trade, or business, either by imputing to him general
disqualification in those respects which the office or other
occupation peculiarly requires, or by imputing something with
reference to his office, profession, trade, or business that has a
natural tendency to lessen its profit;
(4) imputes to him impotence or want of chastity; or
(5) by its natural consequences, causes actual damage.

12

SDCL 20-11-4 (emphasis added). Given this language, Blechinger faces the
same difficulty proving a slander claim that he would under 18 U.S.C. § 1001.
That is, Blechinger is unable to produce evidence that the statements Sioux
Falls Housing made to HUD were false. The observations made by Sioux Falls
Housing indicated that someone was smoking inside his apartment.
Accordingly, Blechinger cannot satisfy the elements of slander. See Guilford v.
Northwestern Public Servs., 581 N.W.2d 178, 180 (S.D. 1998) (holding that
“truthful statements clearly do not amount to slander.”). Thus, Sioux Falls
Housing is entitled to summary judgment. Therefore, it is
ORDERED that Sioux Falls Housing’s motion for summary judgment
(Docket 17) is granted.
IT IS FURTHER ORDERED that Blechinger’s motion to consolidate cases
(Docket 23) is denied as moot.
Dated November 29, 2011.
BY THE COURT:

/s/ Karen E. Schreier
KAREN E. SCHREIER
CHIEF JUDGE

13