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November 29, 2010


The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge


Presently before this court is defendant Vacaville Housing Authority's motion to dismiss plaintiff's complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6).*fn1

After careful consideration of the arguments and briefing submitted by the parties, for the reasons set forth below, the undersigned will recommend that defendant's motion be granted and this case be dismissed.


Plaintiff Chen Hale, a pro se litigant (or in other words proceeding without counsel), filed her complaint in this action on December 15, 2008 in the Northern District of California. (Dkt. No. 1) On February 9, 2009, the Hon. Maxine M. Chesney, United States District Judge of the Northern District of California, transferred this case to the Eastern District of California, finding that venue appears proper herein. (Dkt. No. 17.)

This court screened plaintiff's initial complaint pursuant to 28 U.S.C. § 1915(e)(2), which requires an inquiry into whether a plaintiff proceeding in forma pauperis has stated a non-frivolous claim upon which relief may be granted. (Dkt. No. 24.) Finding that plaintiff had not alleged all of her causes of action in a single document, Magistrate Judge Edmund F. Brennan ordered that plaintiff file an amended complaint setting forth all pertinent and consolidated facts and claims. (Id. at 6.) On May 27, 2009, plaintiff filed an amended complaint, the operative pleading subject to challenge by the instant motion. (Dkt. No. 27.)

On March 27, 2010, defendant filed a motion to dismiss plaintiff's amended complaint. First, defendant contends that this court lacks subject matter jurisdiction over plaintiff's action. Second, defendant argues that plaintiff fails to state a claim upon which relief may be granted. Plaintiff's complaint, a lengthy 123 pages including exhibits, alleges in essence that she was wrongfully denied continued rent assistance benefits for "Section 8" housing. Plaintiff filed an opposition to the motion to dismiss, Dkt. No. 61, and a host of other procedurally impermissible documents, including a response to defendant's subsequent reply brief and various documents entitled "submittal of evidence." (See e.g., Dkt. Nos. 67, 70.) The court ordered the matter submitted, and on August 2, 2010, instructed plaintiff regarding her filing of additional procedurally improper documents. (Dkt. No. 72.)


Defendant's motion to dismiss is brought pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. A motion brought pursuant to Rule 12(b)(1) is a challenge to the court's jurisdiction over the subject matter of the complaint. Federal courts are courts of limited jurisdiction. Vacek v. UPS, 447 F.3d 1248, 1250 (9th Cir. 2006). "A federal court is presumed to lack jurisdiction in a particular case unless the contrary affirmatively appears." A-Z Int'l v. Phillips, 323 F.3d 1141, 1145 (9th Cir. 2003). The plaintiff has the burden of establishing that subject matter jurisdiction is proper. Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994).

A motion brought pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure is a challenge to the sufficiency of the complaint. Under the "notice pleading" standard of the Federal Rules of Civil Procedure, a plaintiff's complaint must provide, in part, a "short and plain statement" of plaintiff's claims showing entitlement to relief. Fed. R. Civ. P. 8(a)(2); see also Paulsen v. CNF, Inc., 559 F.3d 1061, 1071 (9th Cir. 2009). "A complaint may survive a motion to dismiss if, taking all well-pleaded factual allegations as true, it contains 'enough facts to state a claim to relief that is plausible on its face.'" Coto Settlement v. Eisenberg, 593 F.3d 1031, 1034 (9th Cir. 2010) (quoting Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009)). "'A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.'" Caviness v. Horizon Cmty. Learning Ctr., Inc., 590 F.3d 806, 812 (9th Cir. 2010) (quoting Iqbal, 129 S. Ct. at 1949). The court accepts all of the facts alleged in the complaint as true and construes them in the light most favorable to the plaintiff. Corrie v. Caterpillar, 503 F.3d 974, 977 (9th Cir. 2007). The court is "not, however, required to accept as true conclusory allegations that are contradicted by documents referred to in the complaint, and [the court does] not necessarily assume the truth of legal conclusions merely because they are cast in the form of factual allegations." Paulsen, 559 F.3d at 1071 (citations and quotation marks omitted).

In ruling on a motion to dismiss pursuant to Rule 12(b), the court "may generally consider only allegations contained in the pleadings, exhibits attached to the complaint, and matters properly subject to judicial notice." Outdoor Media Group, Inc. v. City of Beaumont, 506 F.3d 895, 899 (9th Cir. 2007) (citation and quotation marks omitted).


As defendant explains, section 8 of the United States Housing Act of 1937 (42 U.S.C. § § 1437 et seq.), as amended by the Housing and Community Development Act of 1974 ("Section 8") is a program which provides housing assistance to low income families. The Section 8 program is financed by the federal government, regulated by the Federal Department of Housing and Urban Development and is administered by local public housing authorities, such as defendant Vacaville Housing Authority ("defendant" or "VHA"). See generally Barrientos v. 1801-1825 Morton LLC, 583 F.3d 1197, 1202 (9th Cir. 2009).

Plaintiff seeks an order overturning the VHA's decision to terminate her Section 8 housing assistance. The VHA reached that decision based upon alleged fraud by plaintiff and her failure to disclose the receipt of funds from third parties. Plaintiff desires a ruling contrary to the decision of an administrative hearing officer who upheld the decision of the VHA to terminate plaintiff's participation in the Section 8 program. (See Dkt. No. 27 at 31-38, Hearing Officer's Ruling).

Plaintiff alleges three causes of action in her amended complaint: (1) National origin discrimination against limited English proficient ("LEP") persons under Title VI of the Civil Rights Act of 1964, Executive Order 13155, August 11, 2000; (2) Discrimination on the basis of disability in state and local government under Title II of the Americans with Disabilities Act ("ADA"), Public Law 101-336; and (3) California Government Code sections 7290-7299.8 (the Dymally-Alatorre Bilingual Services Act). In her amended complaint, plaintiff seeks an order reversing the termination of her Section 8 housing, and costs and damages incurred as a result of the termination. (Dkt. No. 27 at 1, 9.)

A. Defendant's Request for Judicial Notice

As a preliminary matter, defendant requests judicial notice of the City of Vacaville's resolution declaring the need for a housing authority in the City of Vacaville, and declaring the City Council of the City of Vacaville to be commissioners of the VHA. (Dkt. No. 55-1.) Facts subject to judicial notice may be considered on a motion to dismiss without converting the motion to dismiss into one for summary judgment. Mullis v. United States Bankruptcy Court, 828 F.2d 1385, 1388 (9th Cir. 1987); Mack v. South Bay Beer Distrib., 798 F.2d 1279, 1282 (9th Cir. 1986) ("on a motion to dismiss a court may properly look beyond the complaint to matters of public record"). Accordingly, the court hereby recommends that defendant's request be granted pursuant to Federal Rule of Evidence 201 and that the court take judicial notice of the City of Vacaville's Resolution Number 1976-L-5 establishing the VHA as ...

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