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McCoy v. Colorado Springs Housing Authority

United States District Court, D. Nebraska

February 5, 2019

CLYDE MCCOY II, Plaintiff,



         After granting Plaintiff leave to proceed in forma pauperis, the court now conducts an initial review of Plaintiff's Complaint and its Supplement to determine whether summary dismissal is appropriate under 28 U.S.C. § 1915(e)(2).


         Plaintiff's Complaint (Filing No. 1) and Supplemental Complaint (Filing No. 17) allege that Plaintiff and his family “are persons with disabilities who suffer from chronic health conditions expected to end in death.” Plaintiff complains that his family's housing assistance was illegally terminated, forcing them to be “left on the streets homeless suffering numerous hospitalizations, denied access to in[-]home health services, denial of safe clean sanitary housing and cooking facilities and denied a [p]lace to store life[-]sustaining medications” and resulting in “the stillbirth of plaintiff['s] child in a public toilet.” (Filing No. 1 at CM/ECF p. 4.)

         Plaintiff also alleges that the Defendants-the Housing Authorities of Colorado Springs, Colorado, and North Platte, Nebraska, their personnel, and the United States Department of Housing and Urban Development (“HUD”)-retaliated against Plaintiff and his family for their participation in “civil rights investigation and enforcement” and because Plaintiff succeeded in obtaining a previous “fair housing settlement” against Defendants. (Id.)

         As to the Colorado Springs Housing Authority, Plaintiff claims he repeatedly appealed to the HUD Fair Housing and Equal Opportunity office to reinstate his family's housing assistance, but the Authority has “failed to protect” them. Plaintiff asserts that Defendants are deliberately preventing him and his family from participating in “housing programs for persons with disabilities . . . by putting false and misleading information into the HUD EIV reporting system and instructing other public housing agencies to deny the plaintiffs access to[]housing programs.” (Id.)

         As to the North Platte Housing Authority, Plaintiff alleges that the Authority:

• failed to provide “accessible” notices and communication despite being aware that Plaintiff is vision-impaired through his request for accessible notices;
• denied Plaintiff protections and rights afforded to other disabled housing participants, such as “local preference” and “homeless preference/ranking”;
• refused to allow Plaintiff and his children to appeal and have a hearing, despite Plaintiff's requests;
• released confidential information to his wife's employer regarding their family, their participation in HUD, and disability and health information;
• discriminated against Plaintiff on the basis of gender by “routinely provid[ing] affordable housing to single mothers without subjecting them to additional investigation . . . or harassing their family members or the employers of family members who are not on the housing application”; and
• revoked an offer of housing and claimed Plaintiff owed money to HUD once the Authority learned Plaintiff had been a witness in a separate fair-housing-enforcement case.

         Plaintiff also alleges that HUD and the North Platte Housing Authority refused to respond to Plaintiff's faxes, phone calls, and emails requesting an “appeal date.” (Filing No. 17 at CM/ECF pp. 1-2.)

         Plaintiff purports to bring suit under the Fair Housing Act, as amended, 42 U.S.C. § 3601, et seq., the Rehabilitation Act of 1973, 29 U.S.C. § 794, et seq., the Americans With Disabilities Act, 42 U.S.C. § 12131, et seq., 42 U.S.C. § 1983, and “HUD Regs HCV Program.” He requests $1.5 million dollars in damages and “[r]einstatement of the illegally terminated Housing Choice Voucher.” (Id. at 5 & Civil Cover Sheet.)


         The court is required to review in forma pauperis complaints to determine whether summary dismissal is appropriate. See 28 U.S.C. § 1915(e). The court must dismiss a complaint or any portion of it that states a frivolous or malicious claim, that fails to state a claim upon which relief may be granted, or that seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B).

         Pro se plaintiffs must set forth enough factual allegations to “nudge[] their claims across the line from conceivable to plausible, ” or “their complaint must be dismissed.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 569-70 (2007); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”).

         “The essential function of a complaint under the Federal Rules of Civil Procedure is to give the opposing party ‘fair notice of the nature and basis or grounds for a claim, and a general indication of the type of litigation involved.'” Topchian v. JPMorgan Chase Bank, N.A., 760 F.3d 843, 848 (8th Cir. 2014) (quoting Hopkins v. Saunders, 199 F.3d 968, 973 (8th Cir. 1999)). However, “[a] pro se complaint must be liberally construed, and pro se litigants are held to a lesser pleading standard than other parties.” Topchian, 760 F.3d at 849 (internal quotation marks and citations omitted).


         A. General Insufficiencies in Plaintiff's Complaints

         1. Lack of Personal Jurisdiction Over Colorado Defendants

         Plaintiff's first Complaint (Filing No. 1) names as Defendants the Colorado Springs Housing Authority and two individuals who apparently work for the Housing Authority in Colorado Springs, Colorado-Nadine Garcia and Lisa Pachecco (the “Colorado Defendants”)[1]-and describes events that apparently occurred in Colorado. This raises the question whether this court can exercise personal jurisdiction over these nonresident defendants.

         A two-step analysis is used to determine whether a court can properly exercise personal jurisdiction over a defendant. Northrup King v. Compania Productora Semillas Algodoneras Selectas, 51 F.3d 1383, 1387 (8th Cir. 1995). First, the court must consider whether personal jurisdiction can properly be exercised under the state law of the forum state; more specifically, whether jurisdiction exists under the state's “long-arm statute.” Id. “Second, the court's exercise of jurisdiction must be consistent with the due process clause of the Fourteenth Amendment.” Id. Nebraska's long-arm statute, Neb. Rev. Stat. § 25-536, has been interpreted to extend jurisdiction over nonresident defendants to the fullest degree allowed by the Due Process Clause of the United States Constitution, Ameritas Inv. Corp. v. McKinney, 694 N.W.2d 191, 199 (Neb. 2005). Thus, the court need only analyze whether the court may exercise personal jurisdiction over the named Defendants without violating the protections afforded by the Due Process Clause.

         “Due process allows a court to exercise personal jurisdiction over a non-resident defendant only if doing so is consistent with traditional notions of fair play and substantial justice.” Northrup King, 51 F.3d at 1387 (citing International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)). The plaintiff must demonstrate that the non-resident defendant has had sufficient contacts with the forum state such that the defendant “‘should reasonably anticipate being haled into court there.'” Id. (citing World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 291, 297 (1980)).

         Plaintiff's initial Complaint (Filing No. 1) lacks any allegations suggesting that any of the Colorado Defendants have any contact or connection to the State of Nebraska. Plaintiff does not describe anything the Colorado Defendants have done in the State of Nebraska that should have caused them to anticipate being sued here. Accordingly, there is no proper basis apparent from the face of the Complaint, as currently drafted, for exercising personal jurisdiction over Defendants Colorado Springs Housing Authority, Nadine Garcia, and Lisa Pachecco.

         However, I will grant Plaintiff leave to amend his Complaint to include truthful factual allegations, if any, which establish that Defendants Colorado Springs Housing Authority, Nadine Garcia, and Lisa Pachecco have sufficient contacts with the State of Nebraska such that this court can exercise personal jurisdiction over them. If Plaintiff fails to do so, all claims against these Colorado Defendants will be dismissed. See Sanders v. United States, 760 F.2d 869, 872 (8th Cir. 1985) (when an IFP applicant's complaint does not include any allegations supporting personal jurisdiction, the court may properly conclude, sua sponte, that the action should be summarily dismissed); Banks v. New York Police Dep't, No. 4:15CV3012, 2015 WL 1470475, at *2 (D. Neb. Mar. 31, 2015) (on initial review of pro se case, “the Court finds that there is no proper basis apparent from the face of the complaint for exercising personal jurisdiction over any of these defendants in the District of Nebraska, and this action should be dismissed as to them for that reason”); Mast ...

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