Kongtcheu v. Constable

PHILIBERT F. KONGTCHEU, Plaintiff, v. RICHARD E. CONSTABLE, III, et al., Defendant.

Civil Action No.: 12-6872

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY

January 20, 2016

NOT FOR PUBLICATION

OPINION

CECCHI, District Judge.

I. INTRODUCTION

Before the Court is the unopposed motion of Defendants Richard E. Constable, III, and the New Jersey Department of Community Affairs (collectively, "Defendants") to dismiss the Second Amended Complaint of pro se Plaintiff Philibert F. Kongtcheu ("Plaintiff") pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). (ECF No. 38.) No oral argument was heard pursuant to Federal Rule of Civil Procedure 78. For the following reasons, Defendants' motion is granted.

II. BACKGROUND

Plaintiff filed his initial Complaint on October 22, 2012, in which he asserted various claims arising out of his dissatisfaction with his housing subsidy. (ECF No. 1.) Plaintiff named as the sole defendant Richard E. Constable, III ("Constable"), in his official capacity as the Commissioner of the New Jersey Department of Community Affairs ("NJDCA"). Id. Plaintiff's Complaint was subject to screening on the merits pursuant to 28 U.S.C. § 1915(e)(2).¹ Deemingthe complaint unclear, the Court issued an order on January 31, 2013, dismissing the complaint without prejudice and allowing Plaintiff to file an amended complaint. (ECF No. 3.) The Court directed Plaintiff to provide a simplified explanation, in any amended complaint, of the governmental body or agency he intended to sue, the particular applications he had made to any such agency, and whether he had exhausted his administrative remedies. See id. at 4. The order further indicated that Plaintiff could state in a separate section of his amended complaint the particular regulation or statute he sought to attack as unduly vague. See id. at 5.

On March 25, 2013, Plaintiff filed his Amended Complaint. (ECF No. 5.) Plaintiff again named as the sole defendant Constable, in his official capacity as the Commissioner of the NJDCA. The Amended Complaint was not a stand-alone pleading; rather, the Amended Complaint referred back to Plaintiff's original Complaint in an effort to clarify it and to respond to the Court's January 31, 2013 order. Constable filed an Answer to Plaintiff's Amended Complaint on October 30, 2013. (ECF No. 18). Constable filed a Motion for Judgment on the Pleadings pursuant to Federal Rule of Civil Procedure 12(c) on April 11, 2014. (ECF No. 21.) Both the Answer and the Motion addressed only Plaintiff's Amended Complaint (and not the original Complaint). For clarity's sake and in light of Plaintiff's pro se status,² the Court directed Plaintiff to file one new, all-inclusive Second Amended Complaint. (ECF No. 28.)

On May 12, 2015, Plaintiff filed his Second Amended Complaint. (Second AmendedComplaint ("Second Am. Compl."), ECF No. 29.) This time, Plaintiff named two defendants: (1) Constable, in his official capacity as the Commissioner of the NJDCA, and (2) the NJDCA.³

Plaintiff's Second Amended Complaint alleges the following facts. Plaintiff was a resident of Hudson Manor Health Care Center ("Hudson Manor"), a nursing home in Secaucus, New Jersey, from July 9, 2011 to March 16, 2014. (Id. ¶ 5.) Plaintiff was originally transferred to Hudson Manor from Hoboken University Medical Center for physical therapy following the onset of partial paralysis due to "Post Polio Syndrome." (Id.)

Plaintiff received a Non-Elderly Disabled Section 8 voucher ("NED Voucher") from the U.S. Department of Housing and Urban Development ("HUD") on December 28, 2011. (Id. ¶ 7, Ex. A23.⁴) The NJDCA is the public housing agency ("PHA") charged with administering the Housing Choice Voucher Program pursuant to which Plaintiff received his NED Voucher. (Id.) According to the terms of the NED Voucher, "[u]nder this program, the [voucher holder] chooses a decent, safe and sanitary unit to live in," and "[i]f the owner [of the unit] agrees to lease the unit to the [voucher holder] under the housing choice voucher program, and if the PHA approves the unit, the PHA will enter into a housing assistance payments (HAP) contract with the owner to make monthly payments to the owner to help the [voucher holder] pay the rent." (Id.) Plaintiff understood the NED Voucher could be applied to "a two bedroom rental unit . . . with a rental capin Hudson County at $1,393 per month," and later learned a utility allowance would be deducted from that maximum rental amount. (Id. ¶¶ 7-9.)

Plaintiff found it very difficult to locate desirable housing that would accommodate his disability and also fall within the rental cap provided by his NED Voucher. (Id. ¶ 12.) Faced with this difficulty, Plaintiff communicated extensively with the NJDCA via letter, fax, phone, and in-person meeting, seeking "reasonable accommodations" for his disability. In sum, Plaintiff requested the following assistance from the NJDCA, which he characterized as "reasonable accommodations": (1) permission to participate in the NJDCA's homeownership voucher program, which would permit Plaintiff to apply his NED Voucher to the purchase of a home, given that Plaintiff was having difficulty locating housing that could accommodate his disability in the rental market; (2) conversion of his NED Voucher to a three-bedroom voucher to allow Plaintiff to accommodate his children and a live-in aide; and (3) approval of applications for housing units that Plaintiff selected but for which the rent exceeded the NED Voucher's cost limitation.⁵ (Id. ¶¶ 12-13, 15, 20.)

In response, NJDCA representatives communicated the following to Plaintiff: (1) Plaintiff was not eligible to participate in the NJDCA's homeownership voucher program as he had not participated in the rental voucher program for at least one year; (2) the NJDCA was reviewing Plaintiff's request for a live-in aide;⁶ and (3) Plaintiff's requests for approval to rent various unitswere denied as the rental costs of the units exceeded the rental cap provided in the NED Voucher. (Id. ¶¶ 14, 20, 26-27.) Believing his requests and follow-up letters thereto had been unfairly ignored and denied, Plaintiff requested an administrative hearing from the NJDCA hearing coordinator to review these actions on July 17, 2012. (Id. ¶ 37.) On July 25, 2012, Plaintiff received a letter from Hearing Officer Dawn Sullivan, stating Plaintiff was not entitled to a hearing as Plaintiff was an applicant to the Housing Choice Voucher Program and was not yet a participant in the program. (Id., Ex. A83.) Officer Sullivan informed Plaintiff that she would nevertheless forward his concerns to the Regional Supervisor. (Id. ¶ 37.)

On August 2, 2012, Plaintiff received a letter from the NJDCA indicating the time period within which Plaintiff was required to locate housing eligible for assistance under his voucher program was set to expire on August 22, 2012 and no extension would be granted. (Id. ¶ 38, Ex. A84.) Plaintiff responded with a letter reiterating his request for "reasonable accommodations" in the form of admittance to the homeownership voucher program, which would allow him to pursue a wider range of housing options. (Id., Ex. A85.) On September 20, 2012, Plaintiff received a letter from the NJDCA indicating Plaintiff's voucher had actually expired on April 28, 2012, and Plaintiff could contact the local Field Office Supervisor to request an extension. (Id., Ex A100.) On September 24, 2012, Iraisa C. Orihuela-Reilly of Disability Rights New Jersey wrote a letter to the Field Office Supervisor on Plaintiff's behalf, requesting an extension of Plaintiff's time to locate suitable housing pursuant to 24 C.F.R. § 982.303(b)(2), which requires "the PHA must extend the voucher term up to the term reasonably required" as a reasonable accommodation to a person with a disability. (Id. ¶ 41, Ex. A102-103.)

Plaintiff alleges in his Second Amended Complaint the NJDCA's failure to make the "reasonable accommodations" requested—namely, failure to approve Plaintiff's requests to rent apartments at amounts greater than the rental cap permitted by his NED Voucher, failure to grant Plaintiff's request for a live-in aide, failure to admit Plaintiff to the homeownership voucher program, and failure to assist Plaintiff generally with his housing search—constitute actionable violations under Title II of the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12131-12165; Section 504 of the Rehabilitation Act of 1973 ("RA"), 29 U.S.C. § 701 et seq.; the Federal Fair Housing Amendments Act ("FHAA"), 42 U.S.C. § 3601 et seq. and 24 C.F.R.; and the NJCFA Housing Choice Voucher Administrative Plan and Guide to the housing choice voucher program. (Id. ¶¶ 45-83, 121.)

Plaintiff also argues: the NJDCA's failure to accommodate his requests violated Plaintiff's rights to due process under the Fifth and Fourteenth Amendments to the United States Constitution (id. ¶¶ 97-112, 123); the rules or regulations governing the terms of the Housing Choice Voucher Program were unconstitutionally vague (id. ¶¶ 47-48, 102-108); the NJDCA violated the "Olmstead mandate," established in Olmstead v. L.C., 527 U.S. 581 (1999) (id. ¶¶ 89-96, 122); and the NJDCA is liable to Plaintiff for reckless endangerment and emotional distress as a result of Plaintiff's continued stay at the Hudson Manor nursing home pending his ability to find affordable and accessible housing (id. ¶¶ 113-118). Finally, Plaintiff alleges the NJDCA violated the Electronic Signatures in Global and National Commerce Act, 15 U.S.C. § 7001 et seq. for failing to communicate with Plaintiff via fax or email in lieu of regular mail. (Id. ¶¶ 84-88, 124.) Plaintiff seeks declaratory and injunctive relief requiring Defendants to immediately start paying for Plaintiff's current rental accommodations and grant Plaintiff the accommodations he seeks.(Id. ¶¶ 120-127.) Plaintiff also requests damages and that the Court order the NJDCA to establish various policies and...