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Mosby v. Devalls Bluff Housing Authority

October 29, 2007


The opinion of the court was delivered by: Susan Webber Wright United States District Judge

Memorandum Opinion and Order

Plaintiffs bring this action against defendant for violations of Title VIII, 42 U.S.C. §§ 3601 et seq. (the Fair Housing Act); Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d; and 42 U.S.C. §§ 1981, 1982, and 1983. Now before the Court is defendant's motion to dismiss or for summary judgment to which plaintiffs responded. Defendant filed a reply to plaintiffs' response. For the reasons stated below, the motion for summary judgment is granted.


Plaintiffs are the owners of Yopps Street Apartments, located in Hazen, Arkansas. Defendant DeValls Bluff Housing Authority ("DVBHA") was created by the City of DeValls Bluff, Arkansas. Joyce Williams is the Executive Director of the DVBHA. The DVBHA administers the Section 8 Housing Assistance Program funded by the United States Department of Housing and Urban Development ("HUD"). The Section 8 Rental Voucher Program provides rental assistance to low income tenants to allow them to obtain privately-owned rental housing. The DVBHA issues Section 8 vouchers to qualified low income individuals.

Cedar Knoll Apartments in DeValls Bluff is a United States Department of Agriculture ("USDA") Rural Development Complex. All 24 units at Cedar Knoll Apartments are rented pursuant to the USDA Rural Development Program. The DVBHA manages Cedar Knoll Apartments.

The DVBHA has available to it 54 Section 8 rental vouchers for distribution to qualified tenants.*fn1 All Section 8 rental vouchers issued by the DVBHA must be used at approved locations in Prairie County, Arkansas. Once the available Section 8 vouchers at DVBHA are leased or issued, no more vouchers are available to be provided to tenant applicants until one of the Section 8 program participants leaves the program. When a Section 8 voucher applicant comes to the top of the list, it is the applicant's decision as to which qualified apartment complex or other qualified housing to rent.

According to their complaint, in approximately 2003, plaintiffs obtained funding to construct three separate apartment buildings, each containing six units, called the Yopps Street Apartments ("Yopps Street"). Two of the apartment buildings were completed in April 2004. In early 2004, Williams began working with plaintiffs to prepare tenant application forms and occupancy regulations for the plaintiffs' use at Yopps Street. In August 2004, a Section 8 voucher holder, Thelma Cohen, contacted plaintiffs about renting one of their apartments at Yopps Street. On August 16, 2004, plaintiffs and Cohen signed a Request for Tenancy Approval. On August 17, 2004, Williams inspected and approved the apartment for Cohen at Yopps Street for the Section 8 Voucher Program.

On September 21, 2004, plaintiffs filed a complaint with HUD alleging discrimination against the DVBHA. Plaintiffs alleged that when prospective tenants would go to Williams to inquire about Yopps Street, she told them the apartments were too small and too expensive, and steered them to apartments owned and operated by white landlords, including Cedar Knoll Apartments. On March 15, 2005, HUD issued a Determination Letter, finding no reasonable cause to believe that defendant violated the Fair Housing Act, and finding that defendant was in compliance with Title VI of the Civil Rights Act. HUD notified plaintiffs of that decision in a letter dated March 22, 2005.

On March 22, 2007, plaintiffs filed a complaint in federal court, alleging that "[w]hite landlords in Prairie County, Arkansas, are afforded terms, conditions, or privileges in the rental of their property under the HUD Section 8 Voucher program, as administered by Joyce Williams of the DeValls Bluff Housing Authority, that are not afforded to the plaintiffs, on account of their race, in violation of 42 U.S.C. § 3604, 42 U.S.C. § § 1981 and 1982, and Title VI of the Civil Rights Act." Compl. at ¶ 15. Plaintiffs assert that one of their tenants attempted to secure a Section 8 voucher from the DVBHA but was told she could get assistance if she moved out of Yopps Street and into Cedar Knoll Apartments. Now before the Court is defendant's motion to dismiss or for summary judgment.


Defendant moves for dismissal of plaintiffs' claims pursuant to Rules 12(b)(6), 41(b),*fn2 and 56 of the Federal Rules of Civil Procedure, asserting plaintiffs fail to state a claim for relief, that plaintiffs' claims are made outside the statute of limitations, that plaintiffs have no standing to participate in the Section 8 Voucher Program, and that plaintiffs have suffered no harm.

1. Motion to Dismiss

In deciding a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6), all facts alleged in the complaint are assumed to be true. Doe v. Northwest Bank Minn., N.A., 107

F.3d 1297, 1303-04 (8th Cir. 1997). The complaint must be reviewed in the light most favorable to the plaintiff, McMorrow v. Little, 109 F.3d 432, 434 (8th Cir. 1997), and should not be dismissed unless it is clear beyond doubt that the plaintiff can prove no set of facts thereunder which would entitle him or her to relief. Hafley v. Lohman, 90 F.3d 264, 266 (8th Cir. 1996).

Defendant argues plaintiffs' complaint should be dismissed under Fed.R.Civ.P. 12(b)(6) because it contains no factual allegations but mere conclusory statements. Citing Bell Atlantic Corp. v. Twombly, ___ U.S. ___, 127 S.Ct. 1955 (2007), defendant contends plaintiffs' complaint fails to provide fair notice of the nature of their claims or the grounds upon which their claims rest. In Twombly, a case brought under the Sherman Act, the Supreme Court stated that "a plaintiff's obligation to provide the 'grounds' of his 'entitle[ment] to relief' requires more than labels and conclusion, and a formulaic recitation of the elements of a cause of action will not do. Factual ...

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