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Marilyn Boykins v. Community Development Corporation of Long Island

March 21, 2011


The opinion of the court was delivered by: Seybert, District Judge


Pending before the Court is Defendants'*fn1 motion to dismiss. For the following reasons, that motion is GRANTED IN PART AND DENIED IN PART.


Plaintiff Marilyn Boykins received public housing assistance through the Section 8 Housing Choice Voucher Program ("Section 8").

On September 17, 2009, Defendant Corinne Hammons, on behalf of Defendant Community Development Corporation of Long Island ("CDC"), sent Ms. Boykins a termination notice, informing her that it intended to terminate her Section 8 subsidy because she "had an unauthorized individual in your unit." (Am. Compl. ¶ 20.) The notice also quoted applicable regulations stating, among other things, that a participant "must request PHA approval to add any other family member as an occupant of the unit." (Id. Ex. D.) The notice then informed Ms. Boykins that she had a right to an informal hearing, could bring legal counsel at her own expense, and could examine the documentation against her before the hearing, but must, in turn, "provide CDC copies of any documents or evidence you plan to use at the hearing, prior to the hearing." (Id.)

The informal hearing was held on October 26, 2009. (Id. ¶ 21.) On November 11, 2009, hearing officer Kelly Kleo sent Ms. Boykins her decision upholding the termination. (Id. ¶ 24.)

This action followed. In it, Ms. Boykins alleges that the CDC's termination procedures violated her due process rights, for a variety of reasons.


I. Standards of Review

A. Legal Standard Under Rule 12(b)(6)

In deciding FED. R. CIV. P. 12(b)(6) motions to dismiss, the Court applies a "plausibility standard," which is guided by "[t]wo working principles," Ashcroft v. Iqbal, __ U.S. __, 129 S. Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009); Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009). First, although the Court accepts all factual allegations as true, and draws all reasonable inferences in the plaintiff's favor, this "tenet" is "inapplicable to legal conclusions"; thus, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Harris, 572 F.3d at 72 (quoting Ashcroft); Operating Local 649 Annuity Trust Fund v. Smith Barney Fund Management LLC, 595 F.3d 86, 91 (2d Cir. 2010). Second, only complaints that state a "plausible claim for relief" can survive Rule 12(b)(6). Id. Determining whether a complaint does so is "a context specific task that requires the reviewing court to draw on its judicial experience and common sense." Id.

B. Due Process Requirements Under Goldberg

In Goldberg v. Kelly, the Supreme Court held that due process requires a defendant to meet certain procedural safeguards before terminating a recipient's public housing assistance. 397 U.S. 254, 90 S. Ct. 1011, 25 L. Ed. 2d 287 (1970); see also Falkowski v. North Folk Housing Alliance, Inc., 08-CV-2550, 2009 WL 3174029 (E.D.N.Y. Sep. 30, 2009). Specifically, due process requires: (1) timely and adequate notice, including the reasons for the proposed termination; (2) an opportunity to be heard at a pre-termination hearing, including the right to present evidence and confront and cross examine witnesses; (3) a right to be represented by counsel at the hearing; (4) a written decision, including the reasons for the determination and the evidence on which the decision maker relied; and (5) an impartial decision maker. See Falkowski, 2009 WL 3174029 at *2 (citing Goldberg, 397 U.S. at 266-71).

II. Ms. Boykins' Claims

Ms. Boykins argues that Defendants violated her due process rights because: (i) the pre-termination notice she received did not sufficiently inform her of the grounds for the proposed termination; (ii) Ms. Kleo failed to sufficiently explain the reasons for her decision; (iii) Ms. Kleo improperly relied on "documents and evidence of which plaintiff was unaware and had no opportunity to rebut"; (iv) Ms. Kleo improperly based her decision on a non-existent regulation "relating to the use of the subsidized premises for receipt of mail by a non-resident,"; and (v) Ms. Kleo's decision was "arbitrary and capricious," because "a lack of adequate evidence" supported terminating Ms. Boykins' benefits. The Court considers these claims as alleging three distinct due process theories: (1) the initial ...

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