Kris v. Dusseault Family Revocable Trust

594 F.Supp.3d 344

Margaret KRIS

v.DUSSEAULT FAMILY REVOCABLE TRUST et al.

Civil No. 18-cv-566-LM

United States District Court, D. New Hampshire.

Signed March 23, 2022

Margaret Kris, Worcester, MA, Pro Se.

Brian C. Shaughnessy, Kazan & Shaughnessy PLLC, Bedford, NH, for Dusseault Family Revocable Trust of 2017, Frances Dusseault, Charlene Dusseault.

ORDER

Landya B. McCafferty, United States District Judge

Before the court is pro se plaintiff Margaret Kris's "Motion to Change Claim." (doc. no. 66).¹ Kris's motion seeks to join the following entities as new defendants to this action: the Manchester Housing and Redevelopment Authority ("MHRA"); the U.S. Department of Housing and Urban Development ("HUD") Office of Fair Housing and Equal Opportunity, Region 1, in Boston, Massachusetts ("FHEO"); the City of Manchester, New Hampshire; and the City of Boston, Massachusetts. In her motion, Kris also seeks to add new Fourteenth Amendment due process claims against those defendants, along with claims that those defendants failed to train their staff appropriately regarding certain duties owed to her under the Fair Housing Act ("FHA"), causing her harm.

BACKGROUND

I. Underlying Tenancy and Eviction Proceedings

This case arises out of Kris's court-ordered eviction from an apartment in Manchester, New Hampshire, owned and managed by defendants Charlene and Frances Dusseault ("Dusseaults") and the Dusseault Family Revocable Trust of 2017 ("Trust"). Kris signed the lease and began living in the apartment in September 2017 and was evicted less than a year later. Kris's rent for that apartment was subsidized under HUD's Section 8 voucher program, administered by the MHRA.

Kris withheld rent beginning February 1, 2018. The Trust initiated an eviction action against her in state court on March 2, 2018. Following a hearing on March 23, 2018, the state court found that Kris had not paid the rent, in violation of the terms of her lease, entitling the landlord to a writ of possession. Kris's appeal of that judgment was declined by the New Hampshire Supreme Court on June 13, 2018, and a writ of possession issued thereafter, resulting in Kris's eviction. The Hillsborough County Sheriff's Department locked her out of the apartment in July 2018.

II. Correspondence with HUD and FHEO

Kris filled out a HUD Housing Discrimination Complaint form which she obtained from the MHRA in February 2018. She mailed that form to the Boston regional office of HUD in late March 2018. In a series of letters, the FHEO advised Kris that it had closed her file upon finding that her claims were not covered by the FHA.

III. Reasonable Accommodation

Kris filled out a form "Reasonable Accommodation" request, which she submitted to the MHRA in October 2017, stating that she was concerned that if her apartment building needed extermination, pesticide exposure could affect her breathing issues (COPD) and harm her emotional support animal (her cat). Doc. no. 1-1, at 38. On October 26, 2017, the MHRA faxed a form to Kris's primary care provider relating to Kris's request.

Kris has alleged that in late 2017, she clarified to Deborah Butterworth at the MHRA that she was asking for assistance in breaking her lease early so she could move out after the winter and apply her Section 8 housing voucher to another apartment in spring 2018. See doc. no. 66, at 16. Kris sought to be relieved of the full term of her lease to avoid exposure to pesticides which might be used in the building and that posed a risk to her health and her cat's health. A November 13, 2017 handwritten notation in Kris's MHRA housing file states that Kris had "canceled" her request for assistance in terminating her lease "until spring." Doc. no. 51-1, at 3. In a December 19, 2017 letter addressed to Butterworth, Kris repeated that she was concerned that she and her cat would be exposed to chemical pesticides should an exterminator treat her building, and she requested assistance with that issue. Doc. no. 55, at 21.

When spring 2018 arrived, Kris was already a party to the eviction proceeding initiated after she withheld February 2018 rent. In a letter mailed to Kris in April 2017, Butterworth stated the following, regarding her ability to assist Kris in terminating her lease early, while the eviction proceeding was pending:

After talking with you I see you are in the first year of your lease. We would need a Reasonable Accommodation for release from the first year. Also, [Butterworth's supervisor] Bonnie said since you are under eviction I can't do anything until the court process is over. So I have to cancel your appointment on May 1st at 1:30 pm.

Doc. no. 66, at 14.

IV. Termination of Housing Voucher

The MHRA sent a letter to Kris, dated October 3, 2018, stating that her Section 8 housing voucher would be terminated, effective November 4, 2018, because of her eviction. See doc. no. 58, at 6. Kris requested a hearing on the termination of her housing voucher as well as access to her MHRA file. That hearing occurred on October 31, 2018. Kris's filings suggest that she received access to her housing file after the hearing. See doc. no. 58, at 14; doc. no. 21, at 4.

Following that October 31, 2018 hearing, at which Kris had the opportunity to present evidence, the presiding MHRA hearing officer issued a written decision upholding the decision to terminate Kris's housing voucher, based on her court-ordered eviction for non-payment of rent. The hearing officer concluded that her eviction amounted to proof that Kris had failed to comply with the material terms of her lease. Kris received notice of that decision in a letter dated November 7, 2018. See doc. no. 58, at 10.

V. Procedural History of Federal Court Case

On June 20, 2018, Kris filed this civil action against the Dusseaults, the Trust, the Trust's counsel, and HUD. This court directed service of Kris's FHA retaliation claims, asserted under 42 U.S.C. §§ 3613 and 3617, on the Dusseaults and the Trust, but dismissed her claims against HUD and the Trust's attorney. See Sept. 6, 2019 Order (doc. no. 31).

This court previously summarized the claims remaining in this lawsuit as follows:

Kris alleges that, after learning that she had complained to the MHRA and HUD, defendants retaliated against her for that conduct. Specifically, she contends that the retaliation included: (1) Charlene and Frances Dusseault's verbal assault of [her] at her apartment and Frances's physical assault of Kris; (2) the landlord's failure to respond to [her] complaints about maintenance and other issues at the apartment complex; (3) the landlord's eviction of Kris; and (4) the landlord's failure to return [her] security deposit.

Kris v. Dusseault Fam. Rev. Tr. of 2017, No. 18-cv-566-LM, 2019 DNH 164, 2019 WL 4647211, at *5, 2019 U.S. Dist. LEXIS 163029 (D.N.H. Sept. 24, 2019) (doc. no. 33).²

Neither HUD nor the MHRA nor any municipality is presently a defendant in this case, and there are no claims arising under 42 U.S.C. § 1983, the Fourteenth Amendment, or the FHA reasonable accommodation provision. Kris's previous motions seeking to join HUD and the MHRA as defendants have been denied. See, e.g., Feb. 19, 2021 R&R (doc. no. 64), R&R approved, Mar. 25, 2021 Order (doc. no. 69).

LEGAL STANDARD

Under Federal Rule of Civil Procedure 15(a), "[t]he court should freely give leave [to amend a complaint] when justice so requires." Fed. R. Civ. P. 15(a)(2). A request to amend requires the court "to exercise its informed discretion in constructing a balance of pertinent considerations." Palmer v. Champion Mortg., 465 F.3d 24, 30-31 (1st Cir. 2006) ; see also Nikitine v. Wilmington Tr. Co., 715 F.3d 388, 390 (1st Cir. 2013) (court must examine totality of circumstances in ruling on motions to amend). Leave to amend may be denied "when the request is characterized by ‘undue delay, bad faith, futility, [or] the absence of due diligence on the movant's part.’ " Nikitine, 715 F.3d at 390 (quoting Palmer, 465 F.3d at 30 ). To assess whether a proposed amendment fails to state an actionable claim, this court applies the standard for preliminary review set forth in the Aug. 6, 2018 Report and Recommendation ("Aug. 6 R&R") (doc. no. 6). See Sept. 6, 2021 Order (doc no. 31) (approving Aug. 6 R&R).

Federal Rule of Civil Procedure 20(b), concerning the permissive joinder of defendants, is implicated by plaintiff's motion to add new claims against new defendants to this action. That rule allows multiple defendants to be joined together in one action if the plaintiff asserts a claim against them jointly or severally, arising from the same transaction or series of transactions, and if a common question of fact or law will arise in the action. See Fed. R. Civ. P. 20(a)(2).

DISCUSSION

I. Claims against the FHEO and City of Boston

Kris seeks to assert claims under 42 U.S.C. § 1983 against the FHEO, which she considers to be an agency of the City of Boston. Kris alleges that FHEO staff improperly investigated and processed her FHA administrative complaints, did not respond appropriately to her correspondence, and eventually declined to exercise jurisdiction over her administrative claims. She claims that if the FHEO had not delayed consideration of her claims and had not declined to take enforcement action against the Dusseaults, she would not have been evicted, and she would not have lost her housing voucher. She ascribes what she considers to be the FHEO's failings to inadequate staff training.

Section 1983 provides a federal cause of action for claims that persons acting under color of state law violated the plaintiff's federal rights:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State, ... 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, shall be liable to the party injured in an action at law, suit in

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