United States District Court, M.D. Alabama, Eastern Division
RECOMMENDATION OF THE MAGISTRATE JUDGE
WALLACE CAPEL, JR. CHIEF UNITED STATES MAGISTRATE JUDGE
complaint before this court asserts that Defendant violated
her due process rights and Section 8 of the U.S. Housing Act,
42 U.S.C. § 1437f (“Section 8”) as provided
by the Department of Housing and Urban Development
(“HUD”). Currently pending is Plaintiff's
“Emergency Motion for Preliminary Injunction against
Defendant” (Doc. 4). In the motion, Plaintiff asks the
court to order Defendant “to continue to provide
Plaintiff her section 8 benefits during the pendency of this
action due to the fact that [Plaintiff] is in imminent danger
of losing her home.” Doc. 4 at 1. After Defendant was
served with Plaintiff's complaint and appeared in the
case,  the undersigned entered an Order (Doc. 14)
on that same day, directing Defendant to show cause, if any
there be, why the motion for preliminary injunction should
not be granted. Defendant responded (Doc. 17), and Plaintiff
replied (Doc. 20). As the matter is now fully briefed, it is
ripe for recommendation to the United States District
to delving into the merits of Plaintiff's motion for
preliminary injunction, the undersigned believes that a brief
summary of the HUD/Section 8 regulatory background, as well
as a summary of the factual background in this case, will be
helpful in understanding and determining the merits of
Plaintiff's motion. Thus, the undersigned first turns to
summarize the pertinent HUD/Section 8 regulations, and then
turns to provide a summary of the factual evidence derived
from the filings of Plaintiff and Defendant, as well as
judicially noticed state-court documents related to a
currently pending state-court eviction action against
States Department of Housing and Urban Development
(“HUD”) regulations specify when a public housing
agency (“PHA”) may terminate a participant
family's Section 8 housing assistance payments.
See 24 C.F.R. § 982.552. One such specification
allowing termination of assistance arises when a participant
family “violates any family obligations” listed
in 24 C.F.R. § 982.551. Id. at §
982.552(c)(1)(i). Pertinent to this case is the obligation of
a participant family to supply “any information that
the PHA or HUD determines is necessary in the administration
of the program.” Id. at § 982.551(b)(1).
confronted with adverse action by a PHA are entitled to
specific grievance procedures. See 42 U.S.C. §
1437d(k). HUD regulations outline the procedures that a PHA
must follow before terminating a family's Section 8
housing assistance. See 24 C.F.R. § 982.555.
These procedural protections include the requirement that a
PHA provide a participant family an opportunity for an
informal pretermination hearing if the proposed termination
is “because of the family's action or failure to
act.” Id. at § 982.555(a)(1)(iv), (a)(2).
Also, before the informal hearing occurs, a family
“must be given the opportunity to examine . . . any PHA
documents that are directly relevant to the hearing.”
Id. at § 982.555(e)(2)(i). At the hearing,
“[t]he family must be given the opportunity to present
evidence, and may question any witnesses. Evidence may be
considered without regard to admissibility under the rules of
evidence applicable to judicial proceedings.”
Id. at § 982.555(e)(5). Finally,
“[f]actual determinations relating to the individual
circumstances of the family shall be based on a preponderance
of the evidence presented at the hearing.” Id.
at § 982.555(e)(6).
is a recipient of Section 8 housing assistance via the
voucher program. Doc. 1 at 1. Defendant is a local public
housing authority that administers the Section 8 housing
program. Doc. 17 at 3. In February 2017, Plaintiff
and her son moved into housing in Auburn, Alabama, after
being accepted into the Section 8 voucher program
administered by Defendant. Doc. 1-4 at 1. At the time,
Plaintiff was receiving $925.00 per month in Social Security
Disability (“SSD”). Id. Her rent totaled
$550.00 per month and, based upon her Social Security
payments, Plaintiff's portion of the rent was
approximately $155.00. Id.; see Ex. C (Doc.
17-1) (DVD of informal termination proceeding).
around March 29, 2017, Plaintiff received a letter from
Social Security stating that her monthly benefits would
change to $791.00 per month. Id.; Doc. 17-1 at 7.
The letter also provided the following statement about
Medicare deductions: “We deduct Medicare medial
insurance (Part B) premiums 1 month in advance.” Doc.
17-1 at 7. The letter did not state the amount of those
premiums, if any. Id. Pursuant to her HUD
participant family obligations to update Defendant regarding
her income, Plaintiff submitted this letter to Laura D.
Squiers, the Housing Choice Voucher (“HCV”)
caseworker, who was assigned to Plaintiff's file.
Id. at 5.
1, 2017, and May 18, 2017, Ms. Squiers sent letters to
Plaintiff requesting additional information about her income.
Doc. 17 at 10, 11. Specifically, the letters requested that
Plaintiff provide Defendant with an “SSI award letter
including the amount deducted for Medicare Part B.”
Id. The letters were sent to Plaintiff via United
States mail, but Plaintiff never responded to the letters.
See Doc. 1-2 at 2-3. The letters were not sent
through certified mail,  and were returned “because
[Plaintiff's mailbox] was full for lack of
around July 10, 2017, Ms. Squiers sent Plaintiff a letter
stating that her housing assistance would be terminated based
upon her failure to respond to the two letters Ms. Squiers
sent in May. Doc. 1-1. The letter further notified
Plaintiff that the termination of assistance would be
effective August 9, 2017, and that she would be responsible
for her entire rent as of that date, pending the result of an
informal hearing on the issue, if requested. Id.
Plaintiff received that letter on or about July 10, 2017.
Doc. 1-4 at 2.
to her right provided in the letter, Plaintiff requested an
informal hearing, and Ms. Squiers sent Plaintiff a letter,
dated July 26, 2017, stating that her informal hearing was
scheduled for August 8, 2017, at 10:00 a.m. Doc. 17-1 at 14.
At the hearing, the hearing officer heard testimony from Ms.
Squiers. Doc. 1-2 at 1-2. Ms. Squiers introduced into
evidence the May letters that requested more information from
Plaintiff regarding the amount of money she was receiving
from Social Security. Id. at 1. She testified that
Plaintiff responded to neither letter. Id. at 1-2.
She also presented Plaintiff's March 2017 letter from
Social Security that notified Plaintiff that her benefits
would change; Plaintiff's July 2017 Notice of Termination
of Assistance; and, amongst other documents, Defendant's
Rules and Responsibilities and Plaintiff's signed copy of
her Family Certification Briefing. Id. at 5-19. The
Rules and Responsibilities document states that HUD
regulations permit Defendant “to terminate assistance
to participants if any household member . . . does not abide
by the following family obligations . . .: 1. Supply any
information that [Defendant] determines to be necessary. This
includes evidence of . . . income and deductions.”
Id. a 17.
hearing officer also heard testimony from Plaintiff. Doc. 1-2
at 3. Plaintiff reported that she did not receive the May
notices from Defendant, and that she did not realize that
Defendant needed more information from her. Id. She
also stated that she has experienced problems receiving her
mail in the past, although the hearing officer noted that
“[t]here was no evidence to prove that she does have
problems sometimes with her receipt [of mail] from the Postal
Service.” Id. Plaintiff is living on a
fixed income and cannot afford to live in her home if
assistance is terminated. Id.
August 15, 2017, the hearing officer issued her decision
letter to Plaintiff, notifying Plaintiff that, based upon the
evidence at the hearing, Plaintiff's Section 8 housing
assistance would be terminated. Doc. 1-2. As part of the
hearing officer's reasoning for that termination, the
decision states that “[m]aintaining a place to live is
a responsibility that requires careful attention on the part
of the lease holder. . . It appears that the HCV Department
followed the rules and regulations of the Housing Authority
and HUD. Based on the evidence presented by the HCV
Department and the efforts made to contact the tenant, the
decision is to rule favorably in the actions taken by the
Housing Authority. [Defendant's] actions were in
accordance with the Housing Choice Voucher Rules and
Regulations.” Id. at 3.
August 15, 2017, Defendant terminated Plaintiff's Housing
Assistance Payments (“HAP”) to Plaintiff's
landlord. Doc. 1 at 2. On October 12, 2017, Plaintiff
received notification from her landlord, AHA Development,
LLC, that her lease would be terminated. See AHA
Development, LLC v. Latoya A. Love, DV-2017-900413.00
(Doc. 2). The letter gave Plaintiff the right to reply and to
request an informal settlement conference and/or hearing with
Defendant, and stated that the effective date of the lease
termination would be October 26, 2017. Id.
November 9, 2017, AHA Development, LLC, filed an eviction
action against Plaintiff in state court. Id. (Doc.
1). On November 17, 2017, Plaintiff (obviously, the defendant
in state court) filed a motion to dismiss the eviction action
in state court. Id. (Doc. 7). While the state-court
motion to dismiss was pending, Plaintiff filed suit in this
court on November 28, 2017, requesting declaratory,
injunctive, and other relief. Doc. 1. In Plaintiff's
claim for relief, Plaintiff requested that this court
“[e]nter a preliminary injunction prohibiting the
Plaintiff's eviction pending the outcome of this
matter.” Doc. 1 at 3. Plaintiff's motion to
dismiss the state-court eviction action was denied on
December 1, 2017, and set for trial on December 19, 2017.
AHA Development LLC, DV-2017-900413.00 (Doc. 15).
December 14, 2017, Plaintiff filed in this court an
“Emergency Motion for Preliminary
Injunction.” Doc. 4. On December 18, 2017, Plaintiff
filed a motion to continue the eviction action in state
court, citing the Motion for Preliminary Injunction filed in
this court on December 14th. AHA Development LLC,
DV-2017-900413.00 (Doc. 20). The state court entered an order
on December 18th resetting the trial for January 16, 2018.
Id. (Doc. 23).
was served with Plaintiff's federal court complaint on
December 19, 2017, and answered on January 8, 2018.
See Docs. 9, 13. That same day, the undersigned
entered an Order directing Defendant to show cause, on or
before January 10, 2018, why the motion for preliminary
injunction should not be granted. Doc. 14. The undersigned
afforded Plaintiff until January 12th to reply. Id.
state-court eviction has been reset for February 13, 2018, at
2:00 p.m. AHA Development LLC, DV-2017-900413.00
Plaintiff's Motion for Preliminary Injunction
provided that regulatory and factual background, the
undersigned now turns to Plaintiff's motion for
preliminary injunction. As stated previously, Plaintiff's
motion requests that the court order Defendant “to
continue to provide the Plaintiff her section 8 benefits
during the pendency of this action due to the fact that
[Plaintiff] is in imminent danger of losing her home.”
Doc. 4 at 1.
obtain a preliminary injunction, a movant must show: (1) a
substantial likelihood that the plaintiff will prevail on the
merits; (2) there exists a substantial threat that the
plaintiff will suffer irreparable injury if the injunction is
not granted; (3) the threatened injury to the plaintiff
outweighs the harm the preliminary injunction would inflict
on the non-movant; and (4) the granting of the preliminary
injunction would not disserve the public interest. See,
e.g., CBS Broadcasting, Inc. v. Echostar Commc'ns
Corp., 265 F.3d 1193, 1200 (11th Cir. 2001);
McDonald's Corp. v. Robertson, 147 F.3d 1301,
1306 (11th Cir. 1998). In the Eleventh Circuit,
“‘[a] preliminary injunction is an extraordinary
and drastic remedy not to be granted unless the movant
clearly establishe[s] the burden of persuasion' as to the
four requisites.” Id. (quoting All Care
Nursing Serv., Inc. v. Bethesda Mem'l Hosp.,
Inc., 887 F.2d 1535, 1537 (11th Cir. 1989)) (internal
quotation marks omitted).
Whether there is a Substantial Likelihood that Plaintiff Will
Succeed on the Merits of her Claims.
undersigned turns to examine the first requirement for
issuance of a preliminary injunction-i.e., whether there is a
substantial likelihood that Plaintiff will succeed on the
merits of her claim. As noted above, Plaintiff's
complaint asserts a due process claim along with a claim that
her rights under 42 U.S.C. § 1437 were violated.
See Doc. 1 at 3 (Plaintiff seeks relief “to
redress Defendant's deprivation of Plaintiff's rights
under the U.S. Housing Act of 1937, 42 USC [§] 1437, and
her constitutional right to due process secured by the 5th