Moore v. Milwaukee County et al

Filing 87

ORDER signed by Judge J P Stadtmueller on 8/20/15: granting 60 Defendants' Motion for Summary Judgment; DISMISSING this matter with prejudice; and denying 55 Plaintiff's Motion for Summary Judgment. See Order. (cc: all counsel) (nm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
LYNETTE MOORE,
Plaintiff,
v.

Case No. 14-CV-1101-JPS

DENA HUNT and
MILWAUKEE COUNTY,

ORDER
Defendants.
The plaintiff, Lynette Moore, alleges that her Section 8 housing
benefits were terminated in violation of her rights under the Constitution and
various federal statutes. (See Docket #8 ¶¶ 47–73). She has named two
defendants: Milwaukee County (“the County”), which operates the
Milwaukee County Housing Choice Voucher Program (“the Program”)
through the Milwaukee County Housing Authority (“MCHA”), and through
which Ms. Moore received her housing benefits; and Dena Hunt, a County
employee who manages the Program. (See, e.g., Docket #28 ¶¶ 9–10).
The parties have cross-moved for summary judgment (Docket #55,
#60), and their motions are now fully briefed (Docket #56, #61, #72, #76, #77,
#86). The Court, thus, turns to decide them.
1.

BACKGROUND
The Court begins with some background discussion, first offering a

summary of the Program and the system in which it operates, then
discussing the specific facts of this case, and finally discussing Ms. Moore’s
specific claims.
1.1

The Program and the Section 8 System

The Seventh Circuit has provided a thorough overview of Section 8
housing voucher programs. See Khan v. Bland, 630 F.3d 519, 523–24 (7th Cir.

2010). Most of that overview applies to the Program operated by MCHA,
which is specifically at issue in this case. See id. Thus, the Court—with some
minor alterations to make the overview applicable to the Program—quotes
the Seventh Circuit’s overview at length:
The Section 8 Housing Choice Voucher Program provides
rental assistance to low-income families to enable them to
participate in the private rental market. This program is
administered by [the Department of Housing and Urban
Development (“HUD”)]. 42 U.S.C. § 1437f(o); 24 C.F.R. pt. 982.
Although funded by the federal government, it is generally
administered by state or local government entities known as
public housing agencies (PHAs). 24 C.F.R. § 982.1(a). A PHA
must comply with HUD regulations and other HUD
requirements for the program. 24 C.F.R. § 982.52(a). Federal
regulations require PHAs to adopt written administrative
plans that establish local policies for administration of the
program in accordance with HUD requirements. 24 C.F.R.
§ 982.54.
[The MCHA] is the local PHA that administers the Section 8
program for [Milwaukee, Wisconsin].…
Eligibility for the Section 8 housing voucher is determined by
income. 24 C.F.R. § 982.201. Qualified participants pay a
percentage of their income toward rent and utilities and
receive subsidies for the balance of the rental payment. 42
U.S.C. § 1437f. The participant’s portion of the rent cannot
exceed forty percent of his or her monthly adjusted income. 24
C.F.R. § 982.305(a). The subsidized portion of the rent is paid
by the PHA to the rental property owner (the “person…with
the legal right to lease…a unit to a participant” under the
program, 24 C.F.R. § 982.4) pursuant to [a Housing Assistance
Payment (“HAP”)] contract. Once a PHA determines that a
participant is eligible and that there is available space in the
program, the PHA issues the participant a voucher and the
participant can search for housing. 24 C.F.R. §§ 982.202,
982.302.

Page 2 of 24

If a property owner agrees to lease a unit to a tenant under the
program, he must enter into an HAP contract with the PHA.
The HAP contract is prescribed by HUD and specifies the
maximum monthly rent an owner may charge. 42 U.S.C.
§ 1437f(c)(1). Before the PHA enters into an HAP contract, the
PHA must determine that the cost of the unit is reasonable and
meets HUD’s prescribed housing quality standards (HQS). 42
U.S.C. § 1437f(o)(8); 24 C.F.R. § 982.305(a); 24 C.F.R. § 982.401.
The HAP contract provides that it “shall be interpreted and
implemented in accordance with HUD requirements, including
the HUD program regulations at 24 Code of Federal
Regulations Part 982.” HUD–52641, Part B (3/2000), ¶ 16(b).
The Section 8 participant enters into a separate lease with the
owner that must meet certain requirements pursuant to 42
U.S.C. § 1437f(o)(7). For example, the lease must include the
required tenancy addendum. 24 C.F.R. § 982.305(a). The
housing must also be inspected annually to ensure that it
continues to meet the HQS. 42 U.S.C. § 1437f(o)(8)(B)-(D).
Tenants must also re-certify family income and composition
annually to continue in the program. 24 C.F.R. § 982.516.
Khan, 630 F.3d at 523-24. To summarize, as best as the Court can:
(1)

the MCHA, through the Program, administers the Section 8
benefits for the Milwaukee County area, on behalf of HUD and
must comply with all HUD regulations and requirements;

(2)

individuals who would like Section 8 benefits apply to the
Program;

(3)

once that individual is selected for participation in the
Program—when the individual is eligible and there is available
space—MCHA issues that individual a voucher;

(4)

the individual—now a Program participant—then searches for
housing;

(5)

when the participant finds housing that the property owner is
willing to rent to the participant, the property owner must
enter two separate contracts:

Page 3 of 24

(a)

the lease with the participant; and

(b)

the HAP contract with MCHA, which is “interpreted
and implemented in accordance with” all HUD
requirements and regulations;

(6)

once those contracts are in place, the participant pays a portion
of the rent for the unit directly to the owner and MCHA pays
the remainder, also directly to the owner; and

(7)

each year, MCHA must inspect the unit to ensure that it meets
quality standards and the participant must re-certify his or her
family income and composition.

1.2

Case-Specific Facts

Id.

Ms. Moore’s interactions with MCHA, in the context of the system
described above, form the basis for this lawsuit. And, while there are
significant amounts of disputes between the parties as to the facts, there
appear to be few material disputes.
Ms. Moore has received Section 8 housing assistance through the
Program since 2002. (PPFF ¶ 10).1 From 2008 until May of 2014, she lived at
4882 Dean Road in Brown Deer, Wisconsin (“the Dean Road property”).
(PPFF ¶ 11). Lunsinga Msikinya owned the Dean Road property. (DPFF ¶ 14
(plaintiff disputes other portions of this proposed finding)). Thus, because
Ms. Moore was a participant in the Program, she would pay Mr. Msikinya
a small amount in rent and MCHA would pay Mr. Msikinya the remainder.
(See PPFF ¶ 10; DPFF ¶ 16 (plaintiff disputes other portions of this proposed

1

The Court will refer to the plaintiff’s proposed findings of fact (Docket #57)
as “PPFF.” Likewise, it will refer to the defendants’ proposed findings of fact
(Docket #62) as “DPFF.” In turn, it will refer to the plaintiff’s and defendants’
responses to proposed findings (Docket #74, #75, respectively) as “Pl. Resp. to
DPFF” and “Def. Resp. to PPFF,” respectively. The Court will parenthetically note
any factual disputes between the parties where they exist.

Page 4 of 24

finding)). For example, prior to February 5, 2014, Ms. Moore was obligated
to pay Mr. Msikinya $25.00 per month, and MCHA would pay the
remainder. (DPFF ¶ 16 (plaintiff disputes other portions of this proposed
finding)).
On February 5, 2014, however, Ms. Moore’s rent obligations changed
substantially: as a result of a change in her family composition, see 24 C.F.R.
§§ 982.505, 982.516, her rent contribution was increased to $413.00. (DPFF
¶ 16; Pl. Resp. to DPFF ¶ 16). Apparently, she failed to pay this increased
amount when it came due on March 1, 2014. (See DPFF ¶ 18; Pl. Resp. to
DPFF ¶ 18 (arguing that Ms. Moore was not required to pay this amount,
“because Moore’s rent obligation to her landlord at the Dean Road address
for March, 2014, was only $25,” but failing to support that contention or
dispute the fact that Ms. Moore had not, in fact, paid the required $413.00)).
Thus, Mr. Msikinya issued Ms. Moore a five-day notice for failure to pay the
required $413.00. (DPFF ¶ 19; Pl. Resp. to DPFF ¶ 18). That notice required
Ms. Moore to vacate the Dean Road property if she failed to pay the required
$413.00. (DPFF ¶ 20 (plaintiff disputes only the date on which Ms. Moore
would be required to vacate the premises)).
Ms. Moore did not pay that amount, so Mr. Msikinya filed an eviction
action against her. (DPFF ¶ 49 (plaintiff disputes only the date that the
judgment of eviction was entered)). Ms. Moore appeared at a May 22, 2014,
hearing regarding her eviction. (Docket #66, Ex. 1 (Moore Depo.) 133:2–13).
It appears that, at that hearing, she admitted to the presiding judge that she
had not paid the rent and could not do so. (Docket #66, Ex. 1, 137:19–20 (“The
first thing, if you got the money, I said no. So he granted it.”)). So, the
presiding judge issued a judgment of eviction against her. (DPFF ¶ 49
(plaintiff disputes only the date that the judgment of eviction was entered)).
Page 5 of 24

Between the time that Mr. Msikinya issued the five-day notice and the
entry of eviction, Ms. Moore and Mr. Msikinya were both in touch with
Andy Collura, an MCHA employee who had primary responsibility for
managing Ms. Moore’s Section 8 benefits. (E.g., DPFF ¶¶ 21, 30). The parties
largely dispute what the parties said in these conversations and the timeline
of events that followed, but a few things are clear. First, through those
conversations, Mr. Collura learned that Mr. Msikinya planned to terminate
Ms. Moore’s lease at the Dean Road property. (See, e.g., DPFF ¶¶ 25–27).
Second, Mr. Collura was under the (potentially erroneous) assumption that,
because Ms. Moore was required to leave the Dean Road property but
presumably still wanted to participate in the Program, she would need a
“moving packet”; thus, on April 18, 2014, Mr. Collura issued a moving
packet, which included a voucher giving Ms. Moore until June 17, 2014, to
locate housing. (See, e.g., PPFF ¶¶ 14–16; DPFF ¶ 39–43). Third, at some point
(perhaps before, shortly after, or long after issuance of the moving packet),
Mr. Collura informed Ms. Moore that the moving packet was available for
her to pick up from the front desk of his office; he did not mail the packet to
her and may not have explained the importance of the voucher included in
the moving packet. (See, e.g., PPFF ¶¶ 14–16; DPFF ¶ 39–43; Pl. Resp. to DPFF
¶ 48).
Ms. Moore never picked up the moving packet or voucher; thus, the
voucher expired on June 17, 2014, without Ms. Moore having located a new
place to live. (PPFF ¶ 22).
That same day, Ms. Moore went to MCHA’s offices, concerned that
she was going to be homeless; while there, she met with two MCHA
employees. (PPFF ¶¶ 23–24). First, she met with Jackie Martinez, who
explained that Ms. Moore would be terminated from the program because
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she had been evicted. (PPFF ¶ 25). Ms. Moore then met with Ms. Hunt, who
also stated that Ms. Moore would be terminated from the program if she had
been evicted. (PPFF ¶ 26).
On June 19, 2014, Ms. Moore faxed MCHA a written request for a
hearing regarding her benefits. (PPFF ¶ 29).
On June 20, 2014 (or, perhaps, before), MCHA issued the first of three
participant termination letters (“the First Letter”) to Ms. Moore. (PPFF ¶ 30;
DPFF ¶ 56). This letter was (for unclear reasons) backdated to May 30, 2014,
and stated that Ms. Moore’s benefits were being terminated effective June 18,
2014, for two reasons: (1) “[t]he Participant has been evicted from their unit”;
and (2) “[t]he Participant also failed to locate suitable rental housing within
the time allowed on the Voucher.” (Docket #47, Ex. 4; PPFF ¶¶ 30–32; DPFF
¶¶ 56). The First Letter also stated that Ms. Moore had the right to request an
informal hearing within 10 days if she wished to dispute her termination
from the Program. (PPFF ¶ 33).
On June 23, 2014, Ms. Moore’s attorney emailed Ms. Martinez, asking
whether Moore would receiving a hearing as she had requested; Martinez
did not respond. (PPFF ¶ 34 (defendant’s objections do not relate to the
substance of this fact)).
In fact, instead of responding to Ms. Moore’s request for a hearing,
MCHA issued a second participant termination letter (“the Second Letter”).
(PPFF ¶ 35 (defendant’s objections do not relate to the substance of this fact)).
Ms. Martinez gave the Second Letter directly to Ms. Moore’s attorney on
June 24, 2014. (PPFF ¶ 36). The Second Letter differed from the First Letter
in three material respects: (1) the Second Letter was dated June 18, 2014,
whereas the First Letter was inexplicably backdated to May 30, 2014; (2) the
Second Letter listed a single reason for termination: “[t]he Participant failed
Page 7 of 24

to locate suitable rental housing within the time allowed on the voucher”;
and (3) the Second Letter stated that Ms. Moore did not have the right to
request an informal hearing. (PPFF ¶¶ 37, 38). The defendants assert that Ms.
Hunt changed the reason for termination in order to allow Ms. Moore the
opportunity to re-apply for benefits; Ms. Moore disagrees, asserting that Ms.
Moore changed the reason to prevent Ms. Moore from receiving a hearing.
(PPFF ¶ 43; DPFF ¶ 66).
Ms. Moore’s attorney persisted in her requests for a hearing. (PPFF
¶¶ 44–46). Ms. Hunt repeatedly rejected those requests, stating that a pretermination hearing was not necessary when benefits were terminated on the
basis of a participant’s having allowed a voucher to expire. (PPFF ¶ 44–52;
DPFF ¶ 67). Ms. Moore’s attorney also requested an extension of Ms. Moore’s
moving voucher. (DPFF ¶ 68). Ms. Hunt determined that the grant of an
extension was discretionary, and denied the request. (DPFF ¶ 69). In denying
the request for an extension, Ms. Hunt explained that Ms. Moore had not
turned in any requests for approval of a new unit and would have difficulty
locating a new unit in light of the fact that she now had an eviction on her
record. (DPFF ¶ 71). Ms. Hunt informed Ms. Moore’s attorney that the denial
of an extension was unreviewable. (DPFF ¶ 72). Yet, whether to contest the
denial of the extension or (much more likely) the reasons for termination, Ms.
Moore’s attorney continued to request a hearing throughout July and August
of 2014. (DPFF ¶¶ 73, 74).
Then, on August 18, 2014, MCHA issued yet another participant
termination letter to Ms. Moore (“the Third Letter”). (PPFF ¶ 53). The Third
Letter again contained several material differences: (1) the Third Letter was
dated on the actual date of issuance (August 18, 2014), whereas both of the
previous letters had been backdated; (2) the Third Letter changed the date of
Page 8 of 24

termination from June 18, 2014, to June 30, 2014; (3) the Third Letter listed a
single reason for termination, but changed the reason to Ms. Moore’s having
been evicted; and (4) the Third Letter stated that Ms. Moore had the right to
request a hearing. (PPFF ¶¶ 53, 54). The defendants assert that they issued
the Third Letter and changed the reason for termination in order to
allow Ms. Moore to receive a hearing. (DPFF ¶ 75 (“Because of Attorney
Donahoe’s continued ‘adamant’ insistence that Moore be terminated from the
Sec. 8 program for a specific ground that would allow her an informal
hearing, MCHA issued a replacement Participant Termination Letter, dated
August 18, 2014, notifying Moore that her benefits would be terminated
effective June 30, 2014, because of her eviction.”)). Ms. Hunt testified that she
(perhaps mistakenly) did not believe that Ms. Moore was entitled to a
hearing if terminated for letting her voucher expire, but would be entitled to
a hearing if terminated for her eviction. (Docket #67, 199:5–19). Thus,
according to Ms. Hunt, because Ms. Moore’s attorney was “adamant” in her
request for a hearing, Ms. Hunt issued the Third Letter, changing the reason
for termination to one that would allow for a hearing. (Docket #67, 199:5–19).
Ms. Moore disputes that assertion. (Pl. Resp. to DPFF ¶¶ 75, 76).
Regardless of the reason for the change, the result was the same: Ms.
Moore received a hearing. (PPFF ¶¶ 55–56). After receiving the Third Letter,
Ms. Moore’s attorney requested a hearing, and MCHA held that hearing on
October 2, 2014. (PPFF ¶¶ 55–56). That hearing, however, was limited to
addressing Ms. Moore’s eviction as the basis for her termination from the
Program (although much other evidence, specifically as relates to Ms.
Moore’s expired voucher, was introduced). (PPFF ¶ 58; see Docket #36, Ex.
1 at 3). On October 29, 2014, MCHA’s hearing officers issued a decision
upholding the termination of Ms. Moore’s participation in the Program.
Page 9 of 24

(Docket #36, Ex. 1). That decision found that Ms. Moore had provided the
certified mail envelope showing service of notice of her eviction hearing on
April 1, 2014, and that Ms. Moore attended the eviction hearing. (Docket #36,
Ex. 1 at 2–3). At the eviction hearing, Ms. Moore was found to have violated
the terms of her lease by holding over her unit. (See Docket #36, Ex. 1 at 1–2
(citing record in Wisconsin Circuit Court Case No. 2014SC012424)). The
MCHA hearing officers listed Ms. Moore’s violation as: “Participant violated
the terms of her lease by holding over leading to eviction. Eviction due to
repeated or serious lease violations is a mandatory reason for termination of
assistance in accordance with Chapter 12 of the MCVP Administrative Plan
and 24 CFR 982.552(b)(2) and 24 CFR 5.2005(c)(1).” (Docket #36, Ex. 1 at 1).
They concluded that MCHA was “required to terminate assistance to Ms.
Moore,” and thus upheld MCHA’s decision to do so. (Docket #36, Ex. 1 at 3).
Ms. Moore appealed that decision to the Milwaukee County
Administrative Review Committee, which affirmed. (DPFF ¶¶ 85–86). She
then filed suit in Milwaukee County Circuit Court, challenging the
affirmance; that suit remains pending. (DPFF ¶¶ 87–89). (It does not,
however, require the Court to abstain from hearing this case. (See Docket
#51).)
1.3

Ms. Moore’s Claims in This Case

Ms. Moore filed this case on September 10, 2014, after she had been
issued the Third Letter but before she had appeared for the MCHA hearing.
(Docket #1). She filed an amended complaint on September 18, 2014, in which
she alleges three claims for relief:

Page 10 of 24

(1)

that the County and Ms. Hunt failed to provide Ms. Moore
with “a prompt pre-termination hearing in violation of the Due
Process Clause of the 14th Amendment and federal law [42
U.S.C. § 1437d(k) and 24 C.F.R. §§ 982.555(a)(1)(v),
982.552(a)(3)]” (Docket #28 ¶¶ 52–56);

(2)

that the County and Ms. Hunt terminated Ms. Moore from the
Program on the impermissible ground of failing to locate
suitable housing before the expiration of her voucher (Docket
#28 ¶¶ 57–62); and

(3)

that the County and Ms. Hunt “violated Ms. Moore’s federal
right regarding the issuance, term, and extension of her
voucher,” by:
(a)

issuing a voucher without Ms. Moore’s request (Docket
#28 ¶ 64(a));

(b)

failing to inform Ms. Moore that a voucher had been
issued (Docket #28 ¶ 64(b));

(c)

denying Ms. Moore’s request for an extension of her
voucher (Docket #28 ¶ 64(c));

(d)

failing to issue a written response to Ms. Moore’s
request for an extension (Docket #28 ¶ 64(d)); and

(e)

failing “to consider the factors listed in [MCHA’s]
Administrative Plan regarding when an extension
should be granted” (Docket #28 ¶ 64(e)).

Ms. Moore brings these claims under 42 U.S.C. § 1983 (Docket #28 ¶ 5), which
of course creates a cause of action against any person who, under color of law
“subjects, or causes to be subjected, any citizen of the United States or other
person within the jurisdiction thereof to the deprivation of any rights,
privileges, or immunities secured by the Constitution and laws,” 42 U.S.C.
§ 1983.
Ms. Moore has not specifically alleged a Monell claim against the
County, but the parties proceed as if she has. See Monell v. Dep’t of Soc. Servs.
of City of New York, 436 U.S. 658 (1978). And, to be sure, she has alleged that
Page 11 of 24

the County has a “policy” or “practice” at numerous points, as is necessary
to state a Monell claim. (See Docket #28 ¶¶ 54, 58, 60, 64)). So, the Court will
also consider a Monell claim against the County.
Finally, Ms. Moore seeks various forms of relief: (1) a declaratory
judgment holding that the defendants’ actions were unconstitutional and/or
violated HUD regulations; (2) a temporary and/or permanent injunction
reinstating Ms. Moore’s housing benefits and participation in the Program;
(3) costs and reasonable attorneys’ fees under 42 U.S.C. § 1988; and (4) “a
Writ of Certiorari” reversing “Defendants’ decision to terminate Plaintiff
from the Program, thereby requiring Defendants to issue a voucher to
Plaintiff.” (See Docket #28 at 14–15). But, Ms. Moore may not actually be
seeking that relief now: in response to the Court’s request for briefing on the
issue of abstention, Ms. Moore informed the Court that, if this Court were to
reinstate Ms. Moore, that “reinstatement would be retroactive and for a
limited period of time—only from the time the Defendants initially violated
Moore’s rights to the time they issued a written hearing decision.” (Docket
#37). It is not clear exactly how this would operate—Ms. Moore’s claims are
very confusing—but, in any event, it does not seem that the requested relief
makes a difference to the outcome, as the Court will next discuss.
2.

ANALYSIS
The Court now turns to its analysis of the parties’ cross-motions for

summary judgment.
Ms. Moore has moved for partial summary judgment; she argues that
she “is entitled to judgment as a matter of law that MCHA and Dena Hunt
violated her due process rights to a pre-termination notice and hearing. Thus,
Moore seeks summary judgment on MCHA’s and Hunt’s liability, pursuant
to 42 U.S.C. § 1983.” (Docket #56 at 2). It is not entirely clear what Ms. Moore
Page 12 of 24

means, but it seems that she is requesting summary judgment on only her
first claim, insofar as that claim relates to an alleged due process violation by
Ms. Hunt and the County. (See Docket #28 ¶¶ 52–56).
The defendants, meanwhile, have moved for summary judgment on
each of Ms. Moore’s claims. (Docket #60).
2.1

Summary Judgment Standard

“A motion for summary judgment is a contention that the material
facts are undisputed and the movant is entitled to judgment as a matter of
law. The party pursuing the motion must make an initial showing that the
agreed-upon facts support a judgment in its favor.” Hotel 71 Mezz Lender LLC
v. Nat’l Ret. Fund, 778 F.3d 593, 601 (7th Cir. 2015) (citing Fed. R. Civ. P. 56(a),
(c)(1); Celotex Corp. v. Catrett, 477 U.S. 317, 323–24 (1986); Outlaw v. Newkirk,
259 F.3d 833, 837 (7th Cir. 2001); Logan v. Commercial Union Ins. Co., 96 F.3d
971, 978–79 (7th Cir. 1996)). In reviewing a motion for summary judgment,
the Court must “view the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in that party’s favor.” King
v. McCarty, 781 F.3d 889, 895 (7th Cir. 2015) (citing Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255 (1986); McGee v. Adams, 721 F.3d 474, 480 (7th Cir.
2013)).
Where “the movant is seeking summary judgment on a claim as to
which it bears the burden of proof, it must lay out the elements of the claim,
cite the facts which it believes satisfies these elements, and demonstrate why
the record is so one-sided as to rule out the prospect of a finding in favor of
the non-movant on the claim.” Hotel 71, 778 F.3d at 601 (citing Reserve Supply
Corp. v. Owens–Corning Fiberglass Corp., 971 F.2d 37, 42 (7th Cir. 1992); United
States v. Four Parcels of Real Property in Greene & Tuscaloosa Counties in State of
Ala., 941 F.2d 1428, 1438 (11th Cir. 1991)). “If the movant has failed to make
Page 13 of 24

this initial showing, the court is obligated to deny the motion.” Hotel 71, 778
F.3d at 601–02 (citing Johnson v. Hix Wrecker Serv., Inc., 651 F.3d 658, 662 (7th
Cir. 2011) (“A party opposing summary judgment does not have to rebut
factual propositions on which the movant bears the burden of proof and that
the movant has not properly supported in the first instance.”); Johnson v.
Gudmundsson, 35 F.3d 1104, 1112 (7th Cir. 1994) (even an unanswered motion
for summary judgment cannot be granted unless the movant has shown that
the facts warrant judgment in its favor)).
2.2

Substantive Analysis

The Court is obliged to grant the defendants’ motion for summary
judgment and dismiss all of Ms. Moore’s claims.2
2.2.1

Ms. Moore Was Not Terminated on an Impermissible
Ground

The Court will start with Ms. Moore’s second claim: that the
defendants terminated her participation in the Program on the impermissible
ground that her voucher had expired.3
This claim fails because it rests on a faulty premise: that the
defendants, in fact, terminated Ms. Moore’s participation because her

2

The Court acknowledges Ms. Moore’s request that the Court strike the
defendants’ oversized brief in support of their motion for summary judgment.
(Docket #72 at 7–8). That procedural error—which comes on the heels of the Court
allowing the defendants to file an amended answer to avoid judgment on the
pleadings caused by a typo (Docket #60)—is certainly concerning. But the Court
will not strike the defendants’ brief on that basis. The Court has never before
warned parties that it would strike oversized briefs, and believes it would be
unduly harsh to impose that punishment now. That is especially true, here, because
Ms. Moore has had the opportunity to respond to the oversized brief in full.
3

The parties have spent considerable effort briefing the issue of whether Ms.
Moore had a protected property interest in her participation in the program. The
Court will assume, arguendo, that she did.

Page 14 of 24

voucher had expired. Even drawing all reasonable inferences in Ms. Moore’s
favor on this point, that clearly is not the case. Rather, Ms. Moore’s
participation in the program was terminated on the basis of her eviction.
While the First, Second, and Third Letters offered shuffling reasons for the
termination, one thing is clear: the last of those letters listed only the eviction
as the basis for termination and the MCHA hearing officer affirmed Ms.
Moore’s termination on that basis. Regardless of everything happening in the
periphery—the shifting reasons in the letters, Ms. Hunt’s and other
employees’ shifting explanations—it is now clear that the final termination
was based upon the eviction, as explained in the Third Letter and as affirmed
by the MCHA hearing officers.
Furthermore, there can be little doubt that Ms. Moore’s termination
on the basis of her eviction was appropriate. To begin, there is no basis to
doubt the judgment of eviction. There is a state-court judgment of eviction
in place in Milwaukee County Case No. 2014SC012424, effective May 28,
2014. Ms. Moore attended the eviction hearing and did not appeal the
eviction judgment. It remains perfectly valid, and this Court certainly cannot
undo it. That eviction, meanwhile, gave MCHA cause to terminate Ms.
Moore’s participation in the Program. Under 24 C.F.R. § 982.552(b)(2), “[t]he
PHA must terminate program assistance for a family evicted from housing
assisted under the program for serious violation of the lease.” Recently, the
District of Minnesota held that “holding over at the expiration of a lease is a
serious violation of the lease,” that would require termination. Perkins v.
Metro. Council, Metro HRA, 21 F. Supp. 3d 1006, 1010 (D. Minn. 2014) (citing
Wilhite v. Scott Cnty. Hous. & Redevelopment Auth., 759 N.W.2d 252, 256
(Minn. Ct. App. 2009)); but see Eslin v. Hous. Auth. of Town of Mansfield,
No. 3:11-CV-134-JCH, 2013 WL 3279804, at *7 (D. Conn. June 27, 2013)
Page 15 of 24

(concluding “that a genuine issue of material fact exists because a reasonable
factfinder could find that failing to vacate a unit after a lease is terminated
qualifies as a ‘serious violation’ of a lease”). In this case, MCHA’s hearing
officers appear to have viewed Ms. Moore’s holding over her lease as a
serious violation. (See Docket #36, Ex. 1 at 1 (“Participant violated the terms
of her lease by holding over leading to eviction. Eviction due to a repeated
or serious lease violations is a mandatory reason for termination of
assistance…”)). Assuming that it could be termed a serious violation, MCHA
was required to terminate Ms. Moore’s benefits under 24 C.F.R.
§ 982.552(b)(2). On the other hand, even if Ms. Moore’s holding-over was not
a serious violation requiring termination, the mere fact of her eviction gave
MCHA the authority to terminate her benefits: “[t]he PHA may at any
time…terminate program assistance for a participant…[i]f any member of the
family has been evicted from federally assisted housing in the last five
years.” 24 C.F.R. § 982.552(c)(1)(ii). In short—without any regard to the
expiration of Ms. Moore’s voucher—MCHA was either required or, at least,
entitled to terminate Ms. Moore’s participation in the Program on the basis
of her eviction, alone.
2.2.2

Ms. Moore Received Sufficient Process

The Court next turns to Ms. Moore’s first claim: that the lack of a pretermination hearing violated her rights under the Due Process Clause of the
Fourteenth Amendment and HUD’s regulations. In light of her eviction, Ms.
Moore was not entitled to a hearing under either authority.
2.2.2.1 Constitutionally Sufficient Process
First, under Simmons v. Drew, 716 F.2d 1160 (7th Cir. 1983), Ms. Moore
had no constitutional right to a pre-termination hearing. In Simmons, the
Seventh Circuit considered a situation remarkably similar to Ms. Moore’s. Id.
Page 16 of 24

One of the plaintiffs in Simmons, Andrea Williams, had been applied and
accepted into the Program. Id., at 1161–62. However, before she had located
housing, MCHA terminated her participation in the program after finding
that she had violated the terms of a previous lease. Id. at 1162.
Shortly before Williams was expelled, a Wisconsin court
evicted her from the rented dwelling she then occupied
because it found that she had permitted more people to live
there than the lease allowed. The court made its finding after
a bench trial at which Williams appeared and had ample
opportunity to present her version of the facts. Sharing living
quarters with more people than a lease permits is a proper
ground for expulsion from the rent assistance program, so that
when the [MCHA] learned of the eviction, it expelled Williams.
Since there is no reason to suppose that the [MCHA] is in a
better position than a court to determine how many people are
living together under one roof or that Williams was prevented
from presenting fully to the court her version of the facts, the
[MCHA] was not constitutionally required to afford her a
second hearing before or after it decided to expel her.
Id. at 1163. The parallels to Ms. Moore’s situation are clear: both Ms. Moore
and the Simmons plaintiff had been found to have violated their leases by a
court in front of whom they appeared and subsequently evicted. Id. The
Simmons court found that the plaintiff’s eviction hearing, alone, was a
constitutionally adequate pre-termination hearing and that MCHA did not
need to offer her another hearing. Id. Likewise, here, MCHA was in no better
position than the evicting court to determine that Ms. Moore had violated the
terms of her lease by holding over; MCHA was, thus, not constitutionally
required to afford Ms. Moore a second hearing before or after deciding to
expel her. See id.; accord Medley v. City of Milwaukee, 969 F.2d 312, 319 (7th Cir.
1992) (citing Simmons, 716 F.2d at 1163, and reaffirming principle that any
process to which tenants were constitutionally due was satisfied through

Page 17 of 24

state court eviction proceedings); Colvin v. Housing Authority of City of
Sarasota, Fla., 71 F.3d 864, 866–67 (11th Cir. 1996) (citing Simmons, 716 F.2d
1160, and finding that eviction hearing, alone, was all the process that the
tenant was constitutionally due).
But the constitutionality of MCHA’s termination based upon the
eviction hearing, alone, does not end the inquiry; rather, the Court must also
determine whether MCHA complied with the applicable regulations. “The
sole issue in Simmons was the tenant’s constitutional procedural due process
rights.” Colvin, 71 F.3d at 867 (citing Simmons, 716 F.2d 1160). Later-enacted
federal regulations can—and do—impose additional notice and hearing
requirements.
2.2.2.2 Sufficient Process Under Regulations
The regulations require MCHA to provide participants with notice
and a hearing in certain cases. As relevant to this case, the notice and hearing
are required “[i]n the cases described in paragraphs (a)(1)(iv), (v), and (vi) of
this section.” 24 C.F.R. §§ 982.555(a)(2), (c)(2) (using identical language). Of
those paragraphs, (a)(1)(iv) is the only one that might apply: it requires an
informal hearing when there has been “[a] determination to terminate
assistance for a participant…because of the [participant]’s action or failure to
act (see § 982.552).” 24 C.F.R. § 982.555(a)(1)(iv).4 In turn, 24 C.F.R. § 982.552
offers various grounds for termination, including mandatory termination
based upon eviction for a serious lease violation, 24 C.F.R. § 982.552(b)(2),
and the entitlement to terminate based upon any other eviction from

4

24 C.F.R. § 982.555(a)(1)(v) deals with a situation in which the participant
has been absent from the unit. Meanwhile, despite cross-references from other
portions of the regulation, 24 C.F.R. § 982.555(a)(1)(vi) no longer exists within the
regulation.

Page 18 of 24

federally-assisted housing within the previous five years, 24 C.F.R.
§ 982.552(c)(1)(ii). The Court will presume that these grounds constitute a
participant’s “action or failure to act,” so as to trigger the notice and hearing
requirements of 24 C.F.R. §§ 982.555(a)(2) and (c)(2).
So, assuming that the notice and hearing requirements were triggered
by MCHA’s decision to terminate Ms. Moore from the program based upon
her eviction, what did the regulations require? As to notice, under 24 C.F.R.
§ 982.555(c)(2), MCHA was required to provide Ms. Moore with “prompt
written notice that [Ms. Moore] may request a hearing.” That notice required:
a brief statement regarding the basis for the decision; state that Ms. Moore
could request an informal hearing; and state the deadline for Ms. Moore to
request a hearing. 24 C.F.R. §§ 982.555(c)(2)(i–iii). As to a hearing, MCHA
was required to provide Ms. Moore with “the opportunity for an informal
hearing before…terminat[ing] housing assistance payments for [Ms. Moore]
under an outstanding HAP contract.”
MCHA provided the required “prompt written notice.” MCHA issued
the First Letter promptly. Though it was erroneously backdated, it was
issued at most a few days after the listed termination date (and nowhere can
the Court find a specific requirement that the notice be issued pretermination). It also informed Ms. Moore that MCHA was terminating her
benefits as a result of her eviction (in addition to her having allowed her
voucher to expire); that she could request a hearing; and that, if she wished
to request a hearing, she must do so within ten days. (Docket #67, Ex. 7). To
be sure, there was quite a bit of back-and-forth between the parties after
MCHA issued the First Letter; MCHA eventually issued two additional
termination letters. But, ultimately, the First Letter satisfied the regulations:
it provided prompt notice of the ultimate basis for termination of Ms.
Page 19 of 24

Moore’s benefits (eviction, as was ultimately the subject of the October 2,
2014, hearing) and informed Ms. Moore about the hearing process.
Additionally, even if the First Letter did not satisfy 24 C.F.R. § 982.555(c)(2),
the Third Letter did so. It included all of the required information (ground
for termination, availability of hearing, and deadline for requesting the
hearing). (Docket #67, Ex. 13). Furthermore, there is no guidance in the
regulations as to the time limits implied by the word “prompt.” Lawrence v.
Town of Brookhaven Dept. of Housing, Comm. Development & Intergovernmental
Affairs, No. 07-CV-2243, 2007 WL 4591845, at *18 (E.D.N.Y. Dec. 26, 2007)
(“Nowhere in the HUD Regulations or Final Rule, however, is the word
‘prompt’ assigned an exact time or explained further.”). Thus, while the
Third Letter was issued nearly two months after the termination date
(whether the Court treats that date as June 30, 2014, as listed in the Third
Letter, or as June 18, 2014, as listed in the First and Second Letters), that delay
is not clearly inappropriate. See Lawrence, 2007 WL 4591845 (finding a sixmonth delay did not violate the regulations). Throughout the period of delay,
the parties were engaged in discussions, so clearly Ms. Moore was on notice
of the grounds for termination and the potential for a hearing. In fact, that is
precisely what the parties were discussing. So any further letter was purely
pro forma. In light of this, the Court finds that the Third Letter, in addition to
the First Letter, satisfied the requirements of 24 C.F.R. § 982.555(c)(2).
MCHA also satisfied the hearing requirements of 24 C.F.R.
§ 982.555(a)(2). To begin, the Court points out that MCHA did, in fact, hold
a hearing on October 2, 2014. (See Docket #66, Ex. 12). So, to the extent that
there is a requirement to hold a hearing at a participant’s request, see 24
C.F.R. § 982.555(a) (“When a hearing is required.”), MCHA satisfied that bare
requirement.
Page 20 of 24

The timing of the hearing presents a trickier issue. MCHA was
required to “give the opportunity for an informal hearing before…
terminat[ing] housing assistance payments…under an outstanding HAP
contract.” 24 C.F.R. § 982.555(a)(2). Thus, at first glance, it seems that MCHA
may have violated this regulation by giving Ms. Moore a hearing on October
2, 2014, which was after the termination of payments on her behalf.
But that is not, in fact, the case; MCHA’s hearing satisfied the
requirements of the regulations. The terms of 24 C.F.R. § 982.555(a)(2) require
a pre-termination hearing only where there is “an outstanding HAP
contract.” In this case, though, there was not an outstanding HAP contract
at the moment of termination. “[F]ederal regulations…state that the HAP
contract ends, and thus…payments are terminated, when the lease is
terminated.” Eslin, 2013 WL 3279804, at *9 (citing 24 C.F.R. §§ 982.309(b),
981.311(a), 982.451(a)(2); Chapter 15: Terminations of Assistance and HAP
Contracts, HUD Housing Choice Voucher Program Guidebook (Apr. 2001),
at 15–3 to 15–4; Augusta v. Cmty. Dev. Corp. of Long Island, Inc., No.
07–CV–0361, 2008 WL 5378386, *2 n.5 (E.D.N.Y. Dec. 23, 2008)). And, here,
the lease was clearly terminated, as Ms. Moore had been notified to vacate
the premises (Docket #66, Ex. 5), received a letter terminating her lease
(Docket #66, Ex. 6), and been judicially evicted for improperly holding over
her unit (Docket #66, Exs. 7, 8). Thus, the HAP contract was not
“outstanding,” and MCHA did not need to hold a pre-termination hearing
under 24 C.F.R. § 982.555(a)(2).
In short, Ms. Moore received all of the process that she was due, under
both the constitution and the regulations. Accordingly, the Court is obliged
to grant summary judgment in favor of the defendants and dismiss her first
claim.
Page 21 of 24

2.2.3

MCHA Did Not Violate Any Regulations in Issuing
Ms. Moore a Voucher

In her third claim, Ms. Moore asserts that the County and Ms. Hunt
“violated Ms. Moore’s federal right regarding the issuance, term, and
extension of her voucher,” by:
(1)

issuing a voucher without Ms. Moore’s request (Docket #28
¶ 64(a));

(2)

failing to inform Ms. Moore that a voucher had been issued
(Docket #28 ¶ 64(b));

(3)

denying Ms. Moore’s request for an extension of her voucher
(Docket #28 ¶ 64(c));

(4)

failing to issue a written response to Ms. Moore’s request for
an extension (Docket #28 ¶ 64(d)); and

(5)

failing “to consider the factors listed in [MCHA’s]
Administrative Plan regarding when an extension should be
granted” (Docket #28 ¶ 64(e)).

All of those sub-claims fail. Ms. Moore has not provided (and the
Court cannot find) any regulation or other authority to support her position
that MCHA could not issue a voucher without a request or was required to
inform Ms. Moore immediately that a voucher had been issued, as would be
necessary to prevail on the first or second of those sub-claims. As to the
remaining three sub-claims, the decision to grant a voucher extension is
purely discretionary. See 24 C.F.R. § 982.303(b)(1) (“At its discretion, the PHA
may grant a family one or more extensions of the initial voucher term in
accordance with PHA policy as described in the PHA administrative plan.”).
Ms. Hunt exercised discretion—considering Ms. Moore’s lack of efforts to
find new housing and the eviction on her record—in denying the extension
request. (DPFF ¶ 71). Thus, the denial, alone, cannot support a request for
relief, and the third sub-claim fails. The fourth sub-claim fails because Ms.
Page 22 of 24

Hunt did, in fact, provide Ms. Moore with a written response to her request
for an extension.5 (DPFF ¶ 71). The fifth sub-claim fails because, assuming
that MCHA was obligated to follow its Administrative Plan, it did nothing
to violate the terms of its plan. Ms. Moore argues that MCHA “failed to
consider the factors listed” in its Administrative Plan regarding when it
should grant an extension. (Docket #28 ¶ 64(e)). But she does not identify
which factors MCHA did not consider. In fact, the Administrative Plan seems
to vest significant discretion in MCHA to grant or deny a request for an
extension and does not list any “factors” that must be considered. (See Docket
#67, Ex. 6 (providing that MCHA will approve extension requests only as a
reasonable accommodation for a person with disabilities when “necessary
due to reasons beyond the family’s control, as determined by the MCHA,” and
providing a list of certain circumstances in which an extension might be
warranted) (emphasis added). Nothing in the Administrative Plan appears
to require MCHA to provide more specific reasons for its denial than it did.
In short, in issuing Ms. Moore a voucher and in denying her an extension,
MCHA did not do anything that violated the law.
For these reasons, Ms. Moore’s third claim also fails.
2.2.4

Without an Underlying Violation, Ms. Moore’s Monell
Claim Fails

“[I]f no constitutional violation occurred in the first place, a Monell
claim cannot be supported.” Petty v. City of Chicago, 754 F.3d 416, 424 (7th Cir.
2014) (citing Sallenger v. City of Springfield, Ill., 630 F.3d 499, 504 (7th Cir.
2010)). In other words, “a municipality cannot be liable under Monell when
there is no underlying constitutional violation by a municipal employee.”

5

Furthermore, it is not clear that MCHA was even required to issue a
written response; Ms. Moore has not supported that contention.

Page 23 of 24

Sallenger, 630 F.3d at 504. As discussed extensively, above, the Court has
found that Ms. Moore’s individual claims all fail. Without an underlying
violation, she cannot proceed on her Monell claim.
3.

CONCLUSION
For the foregoing reasons, the Court is obliged to grant the

defendants’ motion for summary judgment and dismiss this case in its
entirety with prejudice. It must, accordingly, deny Ms. Moore’s motion for
partial summary judgment.
Accordingly,
IT IS ORDERED that the defendants’ motion for summary judgment
(Docket #60) be and the same is hereby GRANTED; this matter be and the
same is hereby DISMISSED with prejudice; and
IT IS FURTHER ORDERED that the plaintiff’s motion for summary
judgment (Docket #55) be and the same is hereby DENIED.
The Clerk of Court is directed to enter judgment accordingly.
Dated at Milwaukee, Wisconsin, this 20th day of August, 2015.
BY THE COURT:

J.P. Stadtmueller
U.S. District Judge

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