Ester Collar v. Michael B. Wilson

• Court: Court of Appeals for the Eleventh Circuit
• Decided: July 31, 2020
• Docket: 19-12027
• Status: Unpublished

Opinion

Case: 19-12027 Date Filed: 07/31/2020 Page: 1 of 6

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 19-12027 Non-Argument Calendar ________________________

D.C. Docket No. 1:18-cv-21334-MGC

ESTHER COLLAR,

Plaintiff - Appellant,

versus

WENDY RIVERA, HENRY ELLIS, PAMELA STOCKTON, Defendants,

MICHAEL B. WILSON, L. WILLIAMS, et al.,

Defendants - Appellees.

________________________

Appeal from the United States District Court for the Southern District of Florida ________________________

(July 31, 2020) Case: 19-12027 Date Filed: 07/31/2020 Page: 2 of 6

Before WILSON, ANDERSON, and EDMONDSON, Circuit Judges.

PER CURIAM:

Plaintiff Esther Collar -- proceeding before this Court through her appointed

lawyer 1 -- appeals the district court’s dismissal with prejudice of her pro se

complaint against Defendants Michael Wilson and Lacary Williams.2 Defendants

are employees of the Orlando Housing Authority (“OHA”). Briefly stated, Collar

seeks to challenge the termination of her Section 8 Housing Voucher. Reversible

error has been shown; we vacate the judgment and remand for further proceedings.

Plaintiff initiated this lawsuit on 4 April 2018. Plaintiff first filed her pro se

complaint written entirely in Spanish. The district court ordered Plaintiff to refile

her complaint in English or to file an English translation of her complaint. In

compliance with the district court’s order, Plaintiff refiled a pro se complaint

written in English.

Plaintiff’s pro se complaint is formatted like a letter and consists of five

single-spaced pages of factual allegations: with no enumerated paragraphs or

1 Plaintiff moved unsuccessfully for appointment of counsel in the district court. On appeal, this Court appointed Plaintiff appellate counsel.

2 Plaintiff also purported to assert claims against employees of the United States Department of Housing and Urban Development (“HUD”). Plaintiff later dismissed voluntarily these defendants; the HUD defendants are not parties to this appeal. 2 Case: 19-12027 Date Filed: 07/31/2020 Page: 3 of 6

separated claims set out. Although the complaint is in English, that Plaintiff has

limited English proficiency seems clear. Plaintiff also attached documents to her

complaint, including a document issued by HUD in connection with Plaintiff’s

earlier-filed administrative complaint against OHA.

Defendants moved to dismiss Plaintiff’s complaint, which Defendants

described as “near incomprehensible.” Defendants asserted that Plaintiff’s

complaint failed to comply with Fed. R. Civ. P. 8(a) and 10(b): the complaint

commingled improperly allegations against all Defendants “in a manner that

creates uncertainty and confusion over which defendants are being accused of

which actions.” Nevertheless, Defendants construed Plaintiff’s complaint as

asserting a claim for unlawful discrimination under the Fair Housing Act, 42

U.S.C. § 3604(b) (“FHA”). Defendants asserted that Plaintiff’s FHA claim was

barred by the pertinent statute of limitations and that Plaintiff failed to state a claim

for relief.

The district court granted Defendants’ motion and dismissed with prejudice

Plaintiff’s pro se complaint. The district court construed Plaintiff’s complaint as

asserting the same FHA claims Plaintiff raised in the administrative complaint

Plaintiff filed with HUD. The district court concluded that Plaintiff’s FHA claims

were time-barred and, thus, subject to dismissal.

3 Case: 19-12027 Date Filed: 07/31/2020 Page: 4 of 6

Plaintiff moved for reconsideration of the district court’s order of dismissal.

In pertinent part, Plaintiff disagreed with the district court’s characterization of the

claims asserted in her complaint. The district court denied reconsideration. This

appeal followed.

We review de novo the district court’s dismissal of a complaint as barred by

the statute of limitations. See Jackson v. Astrue, 506 F.3d 1349, 1352 (11th Cir.

2007). In the context of a motion to dismiss, we accept as true the facts alleged in

the complaint and construe them in the light most favorable to the plaintiff. La

Grasta v. First Union Sec., Inc., 358 F.3d 840, 845 (11th Cir. 2004).

We construe liberally pro se pleadings. Tannenbaum v. United States, 148

F.3d 1262, 1263 (11th Cir. 1998). “Where a more carefully drafted complaint

might state a claim, a [pro se] plaintiff must be given at least one chance to amend

the complaint before the district court dismisses the action with prejudice.” Bank

v. Pitt, 928 F.2d 1108, 1112 (11th Cir. 1991) (emphasis added), overruled in part

by Wagner v. Daewoo Heavy Indus. Am. Corp., 314 F.3d 541, 542 (11th Cir.

2002) (en banc) (holding that this rule does not apply to counseled plaintiffs). This

chance-to-amend rule is true even when (as in this case) “the plaintiff never seeks

leave to amend in the district court, but instead appeals the district court’s

dismissal.” See id. A district court need not grant leave to amend if amendment

would be futile. Id.

4 Case: 19-12027 Date Filed: 07/31/2020 Page: 5 of 6

To the extent Plaintiff’s complaint can be construed as asserting a claim

against Defendants for violation of the FHA, we agree -- and Plaintiff does not

dispute -- that that claim is barred by the applicable statute of limitations. See 42

U.S.C. § 3613(a)(1) (providing a two-year statute-of-limitations for claims filed

under the FHA).

We are unsure, however, that a more carefully drafted complaint could state

no claim for relief. The complaint is difficult to understand. Still, Plaintiff appears

to allege that rent payments to her landlord under the Section 8 Housing Voucher

program were stopped before Plaintiff had a termination hearing. Accepting these

allegations as true, Plaintiff -- if given the opportunity to amend -- might be able to

make out a plausible claim under 42 U.S.C. § 1983 for violation of procedural due

process: a claim subject to a four-year statute-of-limitations.

Given the obvious lack of clarity in Plaintiff’s complaint and Plaintiff’s later

assertion in her motion for reconsideration that the district court had

mischaracterized the nature of the claims raised in her complaint, the district court

erred by not giving this pro se Plaintiff an opportunity to amend her complaint.

See Bank, 928 F.2d at 1112-13 (granting leave to amend is appropriate when “the

complaint simply is not specific enough to permit an accurate determination

regarding whether a claim is stated.”); see also Fed. R. Civ. P. 15(a) (courts

“should freely give leave [to amend] when justice so requires.”).

5 Case: 19-12027 Date Filed: 07/31/2020 Page: 6 of 6

We vacate the judgment of dismissal and remand with instructions for the

district court to grant Plaintiff leave to amend her complaint.

VACATED AND REMANDED.