provision. It is undisputed that Sims' criminal offense does not fall within the amended provision. Thus, Sims is entitled to the grievance procedures set out in the Housing Act and its regulations.
For the reasons stated above, plaintiff Larry Sims' motion for summary judgment is GRANTED. The court orders that defendants not take any action concerning Sims with regard to eviction or termination of tenancy without first affording him the administrative grievance procedure set forth in 42 U.S.C. § 1437 and its accompanying regulations.
Plaintiff Larry Sims has moved for amendment of judgment of the court's Memorandum Opinion and Order of July 11, 1991 (the "Opinion and Order") so that the Opinion and Order declares void the Limited Denials of Participation of July 2, 1990 and December 7, 1990 (the "1990 LDPs") and orders that HUD not issue any other LDP against Sims without providing Sims the procedures required by the United States Housing Act (the "Housing Act"). For the reasons discussed below, the motion to amend judgment is GRANTED.
Sims argues that the Opinion and Order, as it currently stands, does not prevent reliance upon the 1990 LDPs as a basis for eviction during Housing Authority grievance procedures or a subsequent state court eviction action. (Plaintiff's Mem. in Support, pp. 2-3.) Instead, Sims contends that the procedural requirements of the Housing Act must be provided at the time of the issuance of an LDP to a public housing tenant. (Id. at 2.) Thus, the 1990 LDPs, issued without the required process, must be voided so that they cannot be considered as a basis for evicting Sims. (Id. at 3.)
In its Opinion and Order, the court held that the issuance of an LDP itself is a PHA action involving a tenant's lease which adversely affects the tenant's rights, duties, welfare or status. (Opinion and Order, p. 8.) Thus, the Housing Ac t requires an administrative grievance procedure before the issuance of such sanction. (Id.) The court then determined that the procedures afforded by the LDP regulations when used against public housing tenants do not satisfy the procedures required by the Housing Act for adverse PHA actions. (Id. at 10.) Therefore, in the context of public housing tenancies, the issuance of an LDP requires compliance with the procedures set forth by the Housing Act.
For the reasons stated above and in the court's Order and Opinion of July 11, 1991, plaintiff Sims' motion to amend judgment is GRANTED. The court delcares that the LDPs issued July 2, 1990 and December 7, 1990 against plintiff Sims are invalid. The Housing Authority may not seek to evict Sims based upon the LDPs issued July 2, 1990 and December 7, 1990. An LDP may not be relied upon for the basis of eviction unless the issuance of that LDP comports with the procedural mandates of the Housing Act. This order does not bar the Housing Authority's right to evict Sims on grounds other than the LDPs issued July 2, 1990 and December 7, 1990.
91 C 720
Defendant Kemp has moved for relief from judgment from the Court's October 8, 1991 order. Kemp requests that the court amend the October 8, 1991 order "to state that the LDP issued by HUD on December 7, 1990 (the "December 7 LDP") is valid as it affects plaintiff's future participation in HUD programs." (Motion, p. 2.) The motion is granted.
The court agrees with Sims that the term "future participation" as used by Kemp is an uncertain one. The court relies upon Kemp's representation that preventing "future participation" does not refer to terminating existing arrangements or tenancies. Thus, defendant concede and the court holds that "the [December 7] LDP is invalid for the purpose of an eviction: plaintiff's tenancy is clearly not in any jeopardy as a result of the LDP." (Reply, p. 4.) The December 7 LDP remains invalid as a basis for or for the purpose of evicting a PHA tenant, including Sims.
However, the December 7 LDP can be used to bar Sims from participating in HUD programs outside of his current tenancy. The administrative grievance procedures of the United States Housin Act only apply to public housing tenants facing adverse PHA action. See 24 C.F.R. §§ 966.50, 966.53(a). Thus, the Housin Act does not require such grievance procedures when the LDP sanction is being issued against a non-tenant. Accordingly, the December 7 LDP is not invalid insofar as it affects Sim's "future participation," in his capacity as a non-tenant, in HUD programs.
For these reasons, defendant Kemp's motion for relief from judgment is GRANTED. The court amends its order of October 8, 1991 to state that the LDP issued by HUD on December 7, 1990 remains valid insofar as it affects plaintiff Sims' "future participation" in HUD programs as defined above. Defendants may not seek to evict Sims based on the December 7 LDP.