The opinion of the court was delivered by: Spatt, District Judge.
MEMORANDUM OF DECISION AND ORDER
Presently before the Court is the Plaintiff's motion for a preliminary injunction to stay the Defendants from terminating her from the Section 8 Housing Choice Voucher Program. For the reasons stated below, the Court finds that this case should be brought as an Article 78 proceeding under New York State Law and consequently denies the Plaintiff's motion for a preliminary injunction. However, because of the drastic nature of the relief sought by the Defendants, coupled with the fact that the Plaintiff is a mother of three small children and, apparently, has no funds, the Court will extend the TRO for the stipulated period, until April 17, 2012, to enable the Plaintiff's counsel to seek comparable relief in the state court.
The Plaintiff, Maritza Rios ("Rios" or "the Plaintiff") is a participant in the Section 8 Housing Choice Voucher Program. See Section 8 Housing Assistance Payments Program of the United States Housing Act of 1937, as amended by the Housing and Community Development Act of 1974, codified at 42 U.S.C. § 1437(f) ("Section 8"). The Defendant the Town of Huntington Housing Authority is categorized as a public housing authority ("PHA") under the United States Department of Housing and Urban Development ("HUD") regulations. This PHA is the municipal entity that monitors and administers the Section 8 program in the Town of Huntington ("the Town"). This program is administered to approximately 475 Section 8 families in the Town. The Defendant Siela A. Bynoe is the Executive Director of the PHA, and the Defendant Susan Ortega is the Deputy Director of the PHA.
On August 20, 2011, the Plaintiff was involved in a physical altercation with two other women. According to the Plaintiff, the females were unknown to her, intoxicated and physically attacked her first. Thus, she says she only responded in kind by physically defending herself.
On August 26, 2011, the Plaintiff learned that the police were looking for her and so she turned herself into the police authorities. As a result, she was arrested and charged with felony assault. As an impoverished person, Rios could not make the modest bail and was incarcerated from August 26, 2011 through October 13, 2011, during which time her mother cared for her three young children, who were aged seven, two, and one. However, by October 13, 2011, Rios' mother could no longer care for her children. On that date, the Plaintiff asserts that because of her incarcerated circumstances, and the need to take care of her three children, she was compelled to plead guilty to the felony assault charge. On that same date, the Plaintiff was sentenced to probation for one year, with the understanding that after one year, the charge would be reduced to a misdemeanor.
In the interim, the PHA sent a notice to the Plaintiff dated October 5, 2011, stating that she was to be terminated from the Section 8 Program on account of her arrest. Appended to the notice was both proof of her criminal charges obtained from the Suffolk County Court records, and a newspaper story about the incident. According to the terms of the notice, and in accordance with HUD regulations, the Plaintiff availed herself of the opportunity to have an informal hearing to challenge the termination.
On December 9, 2011 a hearing was held before the Defendant PHA's customary informal hearing officer, Adam Morelli ("the HO"). This hearing was not on the record, and in accordance with the Defendants' policy, the Plaintiff and her attorney were forbidden to transcribe or record the proceedings. However, Rios was afforded an opportunity to be heard; the right to have an attorney present; the right to present evidence; and the right of cross-examination. The Defendants offered the termination notice and the accompanying documents, but presented no other evidence or witnesses. The Plaintiff testified to the facts of the altercation; the circumstances surrounding her guilty plea because of her three young children; the fact that she had no criminal history; as well as her financial situation, in that in the absence of a Section 8 voucher, she and her children would be homeless. The Plaintiff also submitted six letters from school authorities and community agency workers attesting to her good character.
On January 2, 2012, the HO issued a written decision, in which he determined that Rios could continue to receive her Section 8 benefits. The HO wrote, in part, that:
According to §982.553(c)(2)(ii)(A), "[t]he PHA may prohibit admission of a household to the program if the PHA determines that any household member is currently engaged in, or has engaged during a reasonable time before the admission: (2) violent criminal activity." In this case, I do not believe your Section 8 benefits should be terminated at this time.
Neither party disputes that the HO did not refer to the correct HUD regulation, in that the hearing involved termination of Section 8 benefits, not the initial admission into the Section 8 program. However, the parties dispute whether this is a mistake in form or substance. The HO's written decision went on to state that:
As determined by a review of documents and testimony given during the hearing, the altercation which led to your arrest was not initiated by you. In fact, you were attacked by two intoxicated women and reacted in self defense. This was your first legal infraction, and under the circumstances, I believe that you should not be punished further for this incident. Additionally, it is clear that you are in high esteem within you community, as exemplified by the numerous letters written on your behalf by Principal's, coaches, and teachers.
In the end, the HO warned that if Rios' probation was violated by any further legal infractions, her benefits would be terminated.
The Defendants continued to pay the Plaintiff's Section 8 rental subsidy for January and February 2012. On February 8, 2012, a meeting was held by the PHA and its Board of Commissioners. Thereafter, on February 23, 2012, the Defendants sent the Plaintiff a notice stating that they were not bound by the HO's decision and were going to proceed to terminate her Section 8 Benefits. The PHA stated four reasons for its determination that it was not bound by the HO's report: (1) the HO applied the wrong federal regulation in reaching his decision, in that he applied the regulation relating to the admission of benefits, not to the termination; (2) the HO failed to properly apply the standards for review of evidence of criminal activity as stated by 24 C.F.R. §982.553, and that the criminal charges "are considered violent criminal activity"; (3) the HO incorrectly applied the federal, state, and local laws with respect to termination of a participant in the Housing Choice Voucher Program who engages in violent criminal activity because the HO improperly considered factors and circumstances that were not relevant; and (4) the HO wrongly applied certain mitigating circumstances concerning the penalty to be imposed.
On March 30, 2012, the Plaintiff commenced the present lawsuit alleging six causes of action, four of which are premised on violations of the Plaintiff's due process rights under the Fourteenth Amendment. In addition the Plaintiff brings one claim for relief pursuant to 42 U.S.C. § 1983 ("Section 1983"), alleging that the Defendants acted under color of state law in depriving her of her rights under the Fourteenth Amendment, 42 U.S.C. §§ 1437(f) and 1437d(k). The Plaintiff filed an application for a temporary restraining order and a preliminary injunction, along with her summons and complaint.
On March 30, 2012, this Court granted the Plaintiff's application for a temporary restraining order. Thereafter, on April 4, 2012, this Court held a hearing, on the preliminary jurisdictional question as to whether this Court should exercise jurisdiction or if the case is more properly brought as an Article 78 proceeding in the state court. By consent, the temporary restraining order was extended subject to the determination of this Memorandum of Decision and Order.
A. As to Termination from Section 8 Housing and the Applicable HUD Regulations
There is no question that under the federal HUD regulations, the PHA may terminate Section 8 assistance for criminal activity by a household member if the PHA determines, based on a preponderance of the evidence, that the household member has engaged in the activity, regardless of whether the household member has been arrested or convicted for such activity. 24 C.F.R § 982.553(c). Such criminal activity may be drug-related, violent, or any other criminal activity which may threaten the healthy, safety, or right to peaceful enjoyment of the premises by other residents or persons residing in the immediate vicinity. 24 C.F.R. § 982.551. In determining, in its discretion, whether to deny or terminate assistance, the PHA may consider all the relevant circumstances such as the seriousness of the case; the extent of participation or culpability; mitigating circumstances related to the disability of a family member; and the effects of denial of assistance on the family members who were not involved. 24 C.F.R § 982.552(c)(2).
As for the proper procedure for termination, the United States Housing Act, 42 U.S.C § 1437d(k), states:
The Secretary [of HUD] shall by regulation require each [PHA] receiving assistance under this chapter to establish and implement an administrative grievance procedure under which tenants will-
(1) be advised of the specific grounds of any proposed adverse public housing agency action;
(2) have an opportunity for a hearing before an impartial party upon timely request . . .
(3) have an opportunity to examine any documents or records or regulations related to the proposed action;
(4) be entitled to be represented by another person of their choice at any hearing; (5) be entitled to ask questions of witnesses and have others make statements on their behalf; and
(6) be entitled to receive a written decision by the public housing agency on the proposed action.
42 U.S.C. § 1437d(k). In turn, the federal HUD regulations elaborate with regard to the proper hearing procedures, stating that:
(4) Hearing officer: Appointment and authority.
(i) The hearing may be conducted by any person or persons designated by the PHA, other than a person who made or approved the decision under review or a subordinate of this person.
(ii) The person who conducts the hearing may regulate the conduct of the hearing in accordance with ...