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WILLIAMS v. FRIEDMAN

August 24, 1994

ARLENE WILLIAMS, Plaintiff,
v.
MARK FRIEDMAN, Project Manager, Brownsville Houses and NEW YORK CITY HOUSING AUTHORITY, Defendant,



The opinion of the court was delivered by: STERLING JOHNSON, JR.

 JOHNSON, District Judge:

 This is a pro se action brought by Plaintiff, Arlene Williams, against Mark Friedman, Project Manager of Brownsville Houses ("Friedman") and the New York City Housing Authority (the "Housing Authority") (collectively, the "Defendants") alleging that the Defendants deprived her of her civil rights in violation of 42 U.S.C. § 1983. *fn1" Defendants' have moved to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief may be granted.

 For the reasons set forth below, the Defendants' motion is granted and the complaint is dismissed.

 BACKGROUND

 Plaintiff has been a tenant of Brownsville Houses, a public housing unit owned and operated by the New York City Housing Authority, since August 1988. Since that time, Plaintiff has been receiving public assistance from the New York City Department of Social Services ("DSS"). In September 1990, Plaintiff entered a job training program sponsored by DSS in which she was paid a salary in addition to her public assistance benefits.

 The Plaintiff asserts that she immediately informed the Brownsville Houses Management Office ("Brownsville") of her employment and increase in income as required by her lease. *fn2" Plaintiff states, however, that she was never contacted by Brownsville in order to verify her increase in income and adjust her rent accordingly. On June 25, 1991, Plaintiff called Brownsville again and spoke to Mr. Obolo, a Housing Assistant at the Brownsville Houses, and informed him of her employment and increase in income. Plaintiff requested that Mr. Obolo give this information to Friedman so that her rent may be adjusted accordingly. Plaintiff alleges that she was never contacted by Brownsville in order to verify her increase in income.

 On May 7, 1992, Friedman served a fourteen-day eviction notice upon the Plaintiff charging nonpayment in rent for an amount of $ 2,429.00. Friedman stated that the Plaintiff never informed Brownsville of her increase in salary and that in January 1992, Friedman was notified by DSS that the Plaintiff had been employed since September 1990. Subsequently, the Defendants retroactively assessed Plaintiff for the rent she would have paid had she reported her income from September 1990 through December 1991 and charged Plaintiff's account accordingly. *fn3" See Compl. Ex. "A".

 Plaintiff objected to both the eviction notice and retroactive rent charge and filed a grievance pursuant to the Housing and Urban Development ("HUD") grievance procedures. See 24 C.F.R. § 966.50. Plaintiff and Friedman met on March 16 and 23, 1992 and again on June 1, 1992 to discuss the Plaintiff's grievance. At those meetings Plaintiff requested to speak to Mr. Obolo regarding the June 25, 1991 telephone conversation but was told that he was not available. She further states that Friedman failed to produce either a written statement or a sworn affidavit by Mr. Obolo regarding the June 25, 1991 telephone conversation. Friedman told the Plaintiff that she never called to inform Brownsville of her increase in income and that Mr. Obolo denied receiving a call from the Plaintiff. During the meetings with Friedman, Plaintiff states that she was never informed of her rights under the HUD guidelines nor of her right to be represented by counsel.

 On June 4, 1992, Friedman issued a written summary sustaining the Plaintiff's retroactive rent charge. See Compl. Ex. "A". Friedman stated that there was no record substantiating the Plaintiff's claim that she called Brownsville to inform them of her increase in income. Friedman further stated that in Plaintiff's Occupant Affidavit of Income, dated January 15, 1991, the Plaintiff indicated she was unemployed, contrary to the fact that she was employed since September 1990.

 Plaintiff appealed Friedman's decision to the District Office. See Compl. Ex. "B". The District Office disagreed with Friedman's disposition and reversed him in part. The District Office credited the Plaintiff's claim that she had orally informed Brownsville on September 1990. Accordingly, the District Office deducted the retroactive rent charge for the period of September 1, 1990 through January 31, 1991; however, the retroactive rent charge between February 1, 1991 through December 31, 1991 remained on her account because of her Occupant Affidavit of Income, dated January 15, 1991, where Plaintiff indicated that she was unemployed.

 Plaintiff has filed this action pursuant to 42 U.S.C § 1983 claiming that she was denied her right to due process of law pursuant to 24 C.F.R. § § § 966.53, 966.55, 966.56, and the Fourteenth Amendment of the United States Constitution. Specifically, the Plaintiff alleges that Friedman denied her "procedural due process of law by failing to allow her to confront the witness Mr. Obolo, . . . whom he [Friedman] claimed during the grievance proceedings denied that the plaintiff called and reported that she was employed . . . . " Compl. at 4. Plaintiff claims that she and her family sustained "serious emotional distress and mental anguish" as a direct result of the Defendant's "repeated service of eviction papers" and "the constant threat to evict her from her apartment and made homeless." Id. at 5. Plaintiff seeks $ 150,000 in compensatory damages and $ 500,000 in punitive damages.

 DISCUSSION

 The Defendants move to dismiss the Plaintiff's complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. A motion to dismiss for failure to state a claim under Rule 12(b)(6) should be granted only when "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Green v. Maraio, 722 F.2d 1013, 1015-16 (2d Cir. 1983) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957)). The court must accept as true all material facts well-pleaded in the complaint and must make all ...


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