Mattox v. United States of America, Inc.

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TENNESSEE

WESTERN DIVISION

_________________________________________________________________

MICHAEL MATTOX, )

)

Plaintiff, )

)

VS. ) No. 19-2155-MSN-dkv

)

UNITED STATES OF AMERICA, INC., )

MEMPHIS HOUSING AUTHORITY; )

)

Defendants. )

________________________________________________________________

ORDER GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS

AND

REPORT AND RECOMMENDATION FOR SUA SPONTE DISMISSAL

________________________________________________________________

On March 6, 2019, the plaintiff, Michael Mattox, filed a pro

se complaint against the “United States of America, Inc.” (“United

States”) and the Memphis Housing Authority (“MHA”) titled “Civil

Lawsuit.” (Compl., ECF No. 1.) This case has been referred to the

United States Magistrate Judge for management and for all pretrial

matters for determination and/or report and recommendation as

appropriate. (Admin. Order. 2013-05, Apr. 29, 2013.)

Accompanying the complaint was a motion seeking leave to

proceed in forma pauperis. (ECF No. 2.) The information set forth

in the affidavit in support of the motion for leave to proceed in

forma pauperis satisfies Mattox’s burden of demonstrating that he

is unable to pay the civil filing fee. Accordingly, the motion to

proceed in forma pauperis is GRANTED.

For the reasons that follow, it is recommended that this case

be dismissed sua sponte for failure to state a claim.

I. PROPOSED FINDINGS OF FACT

Mattox’s three-page, type-written pro se complaint contains

very little factual information. He asserts that on February 20,

2019, the MHA delivered paperwork to Mattox and “demand[ed] [Mattox]

re-fill out paperwork that [he] had already voluntarily fill[ed]-

out to apply” to live in his apartment complex. (Compl. ¶ 1; ECF

No. 1.) Mattox also claims that “nowhere in the lease did [MHA and

Mattox] agree that [Mattox] would re-fill this application over and

over throughout [his] stay at the [] apartments.” (Id.) Further,

Mattox contends that the MHA has wrongfully threatened to terminate

his lease if he does not complete the paperwork. (Id.) Finally,

Mattox claims in conclusory fashion that the MHA’s actions

constitute the following constitutional violations:

1. 1st constitutional amendment freedom of speech; freedom

not to speak; & right to peaceful assemble;

2. second violation of [his] 5th & 14th constitutional

amendment due process;

3. 5th constitutional amendment – due process;

4. 3rd violation of [his] 8th constitutional amendment

cruel & unusual punishment;

5. 4th violation of [his] 13th constitutional

amendment; slavery.

(Id. at ¶¶ 1-5.)

Mattox seeks compensatory damages in the amount of five zillion

dollars: one zillion dollars for each constitutional violation he

alleges. (Id. at ¶¶ 8-12.) Additionally, Mattox seeks injunctive

relief in the form of a court order requiring MHA to “stop asking

[him] to re-fill out applications” and “have the [MHA] pay [Mattox]

rent” so Mattox can “stay at the . . . apartments free of charge

for the rest of [his] living life.” (Id. at ¶¶ 6-7.)

II. PROPOSED CONCLUSIONS OF LAW

A. 28 U.S.C. § 1915(e)(2)(B) Screening

Pursuant to Local Rule 4.1(b)(2), service will not issue in a

pro se case where the pro se plaintiff has been granted leave to

proceed in forma pauperis until the complaint has been screened

under 28 U.S.C. § 1915(e)(2)(B). The clerk is authorized to issue

summonses to pro se litigants only after that review is complete

and an order of the court issues. This report and recommendation

will constitute the court’s screening of Mattox’s complaint.

The court is required to screen in forma pauperis complaints

and to dismiss any complaint, or any portion thereof, if the action:

(i) is frivolous or malicious;

(ii) fails to state a claim on which relief may be granted; or

(iii) seeks monetary relief against a defendant who is immune

from such relief.

28 U.S.C. § 1915(e)(2)(B).

B. Standard of Review for Failure to State a Claim

In assessing whether Mattox’s complaint states a claim on which

relief may be granted, the standards under Rule 12(b)(6) of the

Federal Rules of Civil Procedure, as stated in Ashcroft v. Iqbal,

556 U.S. 662, 678-79 (2009), and in Bell Atlantic Corp. v. Twombly,

550 U.S. 544, 555-57 (2007), are applied. See Hill v. Lappin, 630

F.3d 468, 470-71 (6th Cir. 2010). To survive Rule 12(b)(6)

following Iqbal and Twombly, a complaint must “‘contain sufficient

factual matter, accepted as true, to state a claim to relief that

is plausible on its face.’” Courie v. Alcoa Wheel & Forged Prods.,

577 F.3d 625, 629 (6th Cir. 2009)(quoting Iqbal, 556 U.S. at 678).

The court “construes the complaint in a light most favorable to the

plaintiff” and “accepts all factual allegations as true” to

determine whether they plausibly suggest an entitlement to relief.

HDC, LLC v. City of Ann Arbor, 675 F.3d 608, 611 (6th Cir. 2012).

However, “a court considering a motion to dismiss can choose to

begin by identifying pleadings that, because they are no more than

conclusions, are not entitled to the assumption of truth. While

legal conclusions can provide the framework of a complaint, they

must be supported by factual allegations.” Iqbal, 556 U.S. at 679.

“Pro se complaints are to be held ‘to less stringent standards

than formal pleadings drafted by lawyers,’ and should therefore be

liberally construed.” Williams v. Curtin, 631 F.3d 380, 383 (6th

Cir. 2011)(quoting Martin v. Overton, 391 F.3d 710, 712 (6th Cir.

2004)). Pro se litigants, however, are not exempt from the

requirements of the Federal Rules of Civil Procedure. Wells v.

Brown, 891 F.2d 591, 594 (6th Cir. 1989). Further, the courts are

not required to act as counsel for a pro se litigant; nor are they

required to sort through the pleadings to create a claim on behalf

of the plaintiff. Pliler v. Ford, 542 U.S. 225, 231 (2004)

(“[D]istrict judges have no obligation to act as counsel or

paralegal to pro se litigants.”); Brown v. Matauszak, 415 F. App’x

608, 613 (6th Cir. 2011)(“[A] court cannot create a claim which [a

plaintiff] has not spelled out in his pleading.”(internal quotation

marks omitted)). Requiring the court “to ferret out the strongest

cause of action on behalf of pro se litigants . . . would transform

the courts from neutral arbiters of disputes into advocates for a

particular party.” Young Bok Song v. Gipson, 423 F. App’x 506, 510

(6th Cir. 2011). “While courts are properly charged with protecting

the rights of all who come before it, that responsibility does not

encompass advising litigants as to what legal theories they should

pursue.” Id.

C. Mattox’s Constitutional Claims

To state a claim under 42 U.S.C. § 1983, a plaintiff must plead

that he or she suffered (1) a deprivation of rights secured by the

Constitution or federal statutes that is (2) committed by a person

acting under color of state law. Adickes v. S. H. Kress & Co., 398

U.S. 144, 150 (1970). The court will therefore treat Mattox’s

“Civil Lawsuit” as a complaint against the United States and MHA

pursuant to § 1983 for violations of the Fifth, Eighth, Thirteenth,

and Fourteenth Amendments.

1. Mattox’s Claims Against the MHA

The MHA is a governmental agency created under Tennessee law1

and is funded through the U.S. Department of Housing and Urban

Development (HUD) to provide permanent housing for low-income and

moderate-income families.2 The MHA is subject to suit under 42

U.S.C. § 1983 as a local government entity.

A governmental entity is liable under § 1983 if an “officially

executed policy, or the toleration of a custom within [it] leads

to, causes, or results in the deprivation of a constitutionally

protected right.” Doe v. Claiborne Cty., Tenn. By & Through

Claiborne Cty. Bd. of Educ., 103 F.3d 495, 507 (6th Cir.

1996)(citing Monell v. Dep’t of Soc. Servs. of New York, 436 U.S.

658, 690-91 (1978)). The policy or custom “must be ‘the moving

force of the constitutional violation’ in order to establish the

liability of a government body under § 1983.” Searcy v. City of

Dayton, 38 F.3d 282, 286 (6th Cir. 1994)(quoting Polk Co. v. Dodson,

454 U.S. 312, 326 (1981)(citation omitted)). Accordingly, for

1 The Memphis Housing Authority was created pursuant to Tenn.

Code Ann. § 29-20-401, et seq. Tenn. Op. Att’y Gen. No. 00-150,

2000 WL 1597410, at *1 (Oct. 27, 2000). The Memphis Housing

Authority is an “agency or instrumentality of the city” and is

considered a local government agency. Id. at * 2 (quoting Knoxville

Housing Authority, Inc. v. City of Knoxville, 123 S.W.2d 1085, 1088

(Tenn. 1939)).

2 See Memphis Housing Authority, About MHA – Frequently Asked

Questions, https://memphisha.org/index.php/faq#services (last

visited August 21, 2019).

Mattox “to demonstrate municipal liability, he must (1) identify

the municipal policy or custom, (2) connect the policy to the

municipality, and (3) show that his particular injury was incurred

due to execution of that policy.” Alkire v. Irving, 330 F.3d 802,

815 (6th Cir. 2003).

Mattox alleges that the MHA’s policy of requiring Mattox to

annually complete paperwork reestablish his eligibility for Section

8 housing violates his constitutional rights under the Fifth,

Eighth, Thirteenth, and Fourteenth Amendments, but fails to provide

any further specificity regarding how this policy caused him

constitutional harm. By way of background, in 1974, Congress

amended the United States Housing Act of 1937 (“USHA”) to create

what is known as the Section 8 Housing Program. Gladney v. Sureluck

Homes LLC, No. 1:13-CV-462, 2013 WL 2182797, at *2 (W.D. Mich. May

20, 2013)(citing 42 U.S.C. § 1437f, et seq.). Section 8 was created

for the purpose of “aiding low-income families in obtaining a decent

place to live and of promoting economically mixed housing.” Id.

(quoting 42 U.S.C. § 1437f(a)). “Section 8 provides federally

subsidized housing to millions of low-income families and

individuals through a range of rental assistance programs, both

tenant—and project-based.” Id.3 “Under all types of Section 8

programs, tenants make rental payments based upon their income and

ability to pay, and [the Department of Housing and Urban Development

(“HUD”)] then provides, under various delivery mechanisms,

‘assistance payments’ to private landlords to make up the difference

between the tenant’s contribution and the agreed-upon ‘contract

rent.’” Id. (citations omitted). Section 8 programs are

administered by State or local governments called public housing

agencies, such as the Memphis Housing Authority. Id. at *3;

Cuyahoga Metro. Auth. v. K & D Grp., Inc., 618 F. App’x 842, 844

(6th Cir. 2015)(citations omitted)(quoting 24 C.F.R. § 982.1(a)).

This paperwork policy Mattox opposes is the MHA’s means of

determining who is eligible to receive HUD funds.

Section 1983 provides a remedy for a violation of a person’s

rights under the Constitution or federal laws; it is not a source

of substantive rights. Johnson v. City of Detroit, 446 F.3d 614,

618–22 (6th Cir. 2006). Thus, a plaintiff must allege a specific

rights violation to successfully state a claim under § 1983. Id.

3 Under the tenant-based program, the public housing authority

issues an eligible family a voucher and the family selects a unit

of its choice. Under the project-based program, a public housing

authority enters into an assistance contract with the owner for

specific units and for a specified term and refers families from to

waiting list to the project owner to fill vacancies. See HUD.GOV,

Project Based Vouchers,

https://portal.hud.gov/hudportal/documents/huddoc?id=DOC_9157.pdf

.

“When no constitutional harm has been inflicted upon a victim,

damages may not be awarded against a municipality.” Epps v.

Lauderdale Cty., Tennessee, 45 F. App'x 332, 334 (6th Cir. 2002);

see also Bruederle v. Louisville Metro Gov't, 687 F.3d 771, 777

(6th Cir. 2012)(“A plaintiff’s failure to demonstrate

constitutional harm defeats municipal liability.”). In his

complaint, Mattox contends that MHA’s requirement that Mattox

annually recertify his application paperwork in order to retain

Section 8 assistance violates his constitutional rights because he

“[n]o where in the lease did [they] agree that [Mattox] would re-

fill this application.” (Compl. ¶ 1, ECF No. 1.) The complaint

does not, however, include any factual allegations showing that the

MHA’s application policy has caused Mattox to suffer any

constitutional harm. “[T]he injury suffered need not be great

because there is no justification for harassing people for exercise

of their constitutional rights; but [] a constitutional tort — like

any tort — requires injury, and allowing constitutional redress for

every minor harassment may serve to trivialize the First Amendment.”

Mattox v. City of Forest Park, 183 F.3d 515, 521 (6th Cir. 1999).

To that end, the minor inconvenience of completing paperwork once

a year to establish one’s eligibility for a Section 8 program does

not constitute a constitutional injury.

Accordingly, because Mattox fails to demonstrate that he has

suffered any constitutional harm, it is recommended his claims

against the MHA be dismissed.

2. Mattox’s Claims Against the United States

Additionally, Mattox brings this suit against the United

States. Mattox’s complaint regards his access to Section 8 program

funding from the MHA, which is funded through HUD. For purposes of

analysis, the court will therefore treat Mattox’s claims against

the United States as claims against HUD.

HUD is a federal agency. As such, HUD and its employees act

under color of federal law, not state law, and thus are not suable

under Section 1983. See D.C. v. Carter, 409 U.S. 418, 424–25

(1973)(stating that Section 1983 does not reach “actions of the

Federal Government and its officers”); Habtemariam v. Adrian, No.

98-3112, 1999 WL 455326, at *2 (6th Cir. June 23, 1999)(finding

that a § 1983 claim against HUD could not survive motion to dismiss

because “HUD is a federal agency, and not a person acting under

color of state law”); Williams v. City of Memphis, No. 14-2767-JDT-

tmp, 2015 WL 808456, at *6 (W.D. Tenn. Feb. 25, 2015)(citing Smith

v. Breen, No. 09-2770-STA-tmp, 2010 WL 2557447, at *7 n.14 (W.D.

Tenn. June 21, 2010))(“[F]ederal agencies and employees act

under color of federal law and, therefore, are not subject to suit

under § 1983.”). Consequently, the complaint fails to establish a

cognizable § 1983 claim against HUD and it is recommended that

Mattox’s claims against the United States be dismissed for failure

to state a claim upon which relief may be granted.

III. RECOMMENDATION

For the foregoing reasons, the court recommends that Mattox’s

complaint be dismissed sua sponte pursuant to 28 U.S.C. §

1915(e)(2)(B)(ii) for failure to state a claim on which relief may

be granted and § 1915(e)(2)(B)(iii) for seeking monetary relief

from a defendant who is immune from such relief.

Respectfully submitted this 26th day of August, 2019.

_s/ Diane K. Vescovo________

DIANE K. VESCOVO

Chief United States Magistrate Judge

NOTICE

Within fourteen (14) days after being served with a copy of this

report and recommended disposition, a party may serve and file

written objections to the proposed findings and recommendations. A

party may respond to another party’s objections within fourteen

(14) days after being served with a copy. Fed. R. Civ. P. 72(b)(2).

Failure to file objections within fourteen (14) days may constitute

a waiver of objections, exceptions, and further appeal.