United States District Court, D. Colorado
ANDREA R. THOMPSON, Plaintiff,
BOULDER COUNTY HOUSING AUTHORITY, FRANK ALEXANDER, WILLA WILLIFORD, AMANDA GUTHRIE, CHERYL SEARS, KRISTINA GONZALEZ, Defendants.
ORDER TO AMEND
Gordon P. Gallagher United States Magistrate Judge.
Plaintiff, Andrea R. Thompson, a resident of Longmont, Colorado, filed pro se a Complaint (ECF No. 1) and an Application to Proceed in District Court Without Prepayment of Fees or Costs (Long Form) (ECF No. 2). She has been granted leave to proceed in forma pauperis. (ECF No. 5). Plaintiff also filed two Motions for Temporary Restraining Orders and/or Preliminary Injunctions (ECF No. 3 and 7), which were both denied by the Court (ECF No. 6 and 8). Most recently, on February 26, 2016, Plaintiff filed a “Motion for Amended Complaint.” (ECF No. 9).
The Court must construe the documents submitted by Ms. Thompson liberally because she is not represented by an attorney. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, the Court should not be an advocate for a pro se litigant. See Hall, 935 F.2d at 1110. For the reasons stated below, Ms. Thompson will be ordered to file an Amended Complaint.
Ms. Thompson’s claims are based on the fact that the Boulder County Housing Authority (“BCHA”) has threatened to terminate her Section 8 housing voucher. A description of the Section 8 housing voucher program follows:
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 BCHA] is the local PHA that administers the Section 8 program for [Boulder County, Colorado].
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 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.
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.
See Khan v. Bland, 630 F.3d 519, 523-24 (7th Cir. 2010).
Although not a model of clarity, construing the allegations liberally, Plaintiff alleges that her constitutional rights were violated because when she refused to sign a Repayment Agreement (which she claims contained a miscalculation of her rent) and filed a complaint with HUD, the Defendants retaliated against her. According to Plaintiff, Defendants retaliated against her by conducting an investigation to prove that another individual, Michael Lee Trendel, was a resident in her home in order to terminate her Section 8 voucher. As a result, she alleges that her Section 8 voucher will be terminated as of February 29, 2016. In her Motion for Amended Complaint, she provides the following additional facts and claims: she has a medical disability and the Defendants are violating the ADA; Defendants’ counsel is continuing with a hearing to terminate her Section 8 voucher even though this lawsuit is pending; and that the Defendants are trying to use a document in the Section 8 voucher termination hearing that directly references her religion.
First, Plaintiff’s allegation that Defendants are using a document that references her religion does not state a constitutional violation. She does not assert that the Defendants are basing a decision for housing on her religion. In fact, the document that references her religion, which she attached to her Motion for Amended Complaint (ECF No. 9 at 23), contains relevant information that is not related to her religion. The document, which appears to be a personal profile on a religious social media site, states that “Michael and Andrea Trendel” are married and live in Longmont, Colorado and it includes a picture of two people, presumably Michael and Andrea. At the Section 8 voucher termination hearing, the document would be relevant evidence for Defendants attempting to establish that Michael Trendel lives at Plaintiff’s Longmont, Colorado residence. As such, Plaintiff’s allegation regarding the document referencing her religion does not state a constitutional claim.
Next, Plaintiff’s allegation that she has a disability and that Defendants violated the ADA is vague and conclusory. Title II of the ADA provides that"[n]o qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by such entity." 42 U.S.C. § 12132 (2006). To state a claim under Title II, the plaintiff must allege that "(1) [s]he is a qualified individual with a disability, (2) who was excluded from participation in or denied the benefits of a public entity's services, programs, or activities, and (3) such exclusion, denial of benefits, or discrimination was by reason of a disability." Robertson v. Las Animas Cnty. Sheriff's Dept., 500 F.3d 1185, 1193 (10th Cir. 2007). Plaintiff alleges she is a qualified individual with a disability and that she will be excluded from the Section 8 housing voucher program, but she makes no allegation that such exclusion was “by reason of a disability.” In fact, she argues that she is being excluded from the Section 8 housing voucher program for another reason --- in retaliation for her filing a claim with HUD.
Which bring us to Plaintiff’s final allegation that she was retaliated against after she refused to sign a Repayment Agreement and filed a complaint seeking redress from a government oversite agency (HUD) in violation of her First and Fourteenth Amendment constitutional rights. To state a retaliation claim, Ms. Thompson must allege facts to show that (1) she was engaged in constitutionally protected activity, (2) the Defendants’ action caused her to suffer an injury that would chill a person of ordinary firmness from continuing to engage in that activity, and, (3) the Defendants’ adverse actions were substantially motivated as a response to Plaintiff’s constitutionally protected ...