Nakanwagi v. Denver Housing Authority et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Regina M. Rodriguez
Civil Action No. 1:25-cv-00051-RMR
SARAH NATHREEN ,
Plaintiff,
v.
DENVER HOUSING AUTHORITY
Defendant,
and
HOLLAND RESIDENTIAL, LLC,
Nominal Defendant.
ORDER
This matter comes before the Court on Plaintiff’s Emergency Motion for Temporary
Restraining Order and Injunctive Relief, ECF No. 3. For the reasons explained below, the
motion is DENIED.
I. 	BACKGROUND
Plaintiff, proceeding pro se,1 moves for an “Emergency Temporary Restraining
Order (TRO) and Preliminary Injunction against the Denver Housing Authority (“DHA”) to
1 The Court must construe Plaintiff’s motion liberally because he is a pro se litigant. See Haines v. Kerner,
404 U.S. 519, 520–21, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th
Cir.1991). However, the Court should not act as a pro se litigant’s advocate. Hall, 935 F.2d at 1110.
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halt an impending eviction by Holland Residential, LLC (hereinafter “Sabine Apartments”)
and to compel DHA to fulfill its obligations under the Housing Choice Voucher Program
(Section 8) pursuant to Federal Rule of Civil Procedure 65(b).” ECF No. 3 at 1. Plaintiff
asserts various claims against the Denver Housing Authority (“DHA”), alleging DHA has
failed to pay her landlord the agreed upon rent pursuant to a Section 8 housing voucher.
ECF No. 1 at 6-7. Plaintiff alleges that as a result of DHA’s failure to pay, she faces
impending homelessness due to the eviction proceedings initiated by Sabine Apartments.
Id. at 7.
A description of the Section 8 housing voucher program follows:
The Section 8 Housing Choice Voucher Program provides rental assistance
to low-income families to enable them to participate in the private rental
market. This program is administered by [the Department of Housing and
Urban Development ("HUD") ]. 42 U.S.C. § 1437f(o); 24 C.F.R. pt. 982.
Although funded by the federal government, it is generally administered by
state or local government entities known as public housing agencies
(“PHA”). 24 C.F.R. § 982.1(a). A PHA must comply with HUD regulations
and other HUD requirements for the program. 24 C.F.R. § 982.52(a).
Federal regulations require PHAs to adopt written administrative plans that
establish local policies for administration of the program in accordance with
HUD requirements. 24 C.F.R. § 982.54.
[The DHA] is the local PHA that administers the Section 8 program for
[Denver, Colorado].
Eligibility for the Section 8 housing voucher is determined by income. 24
C.F.R. § 982.201. Qualified participants pay a percentage of their income
toward rent and utilities and receive subsidies for the balance of the rental
payment. 42 U.S.C. § 1437f....The subsidized portion of the rent is paid by
the PHA to the rental property owner (the "person...with the legal right to
lease...a unit to a participant" under the program, 24 C.F.R. § 982.4)
pursuant to [a Housing Assistance Payment ("HAP") ] contract. Once a PHA
determines that a participant is eligible and that there is available space in
the program, the PHA issues the participant a voucher and the participant
can search for housing. 24 C.F.R. §§ 982.202, 982.302.
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If a property owner agrees to lease a unit to a tenant under the program, he
must enter into an HAP contract with the PHA.
The HAP contract is prescribed by HUD and specifies the maximum
monthly rent an owner may charge. 42 U.S.C. § 1437f(c)(1). Before the PHA
enters into an HAP contract, the PHA must determine that the cost of the
unit is reasonable and meets HUD's prescribed housing quality standards
(HQS). 42 U.S.C. § 1437f(o)(8); 24 C.F.R. § 982.305(a); 24 C.F.R. §
982.401. The HAP contract provides that it "shall be interpreted and
implemented in accordance with HUD requirements, including the HUD
program regulations at 24 Code of Federal Regulations Part 982." HUD-
52641, Part B (3/2000), ¶ 16(b). The Section 8 participant enters into a
separate 	lease 	with 	the 	owner 	that 	must 	meet 	certain 	requirements
pursuant to 42 U.S.C. § 1437f(o)(7). For example, the lease must include
the required tenancy addendum. 24 C.F.R. § 982.305(a). The housing must
also be inspected annually to ensure that it continues to meet the HQS. 42
U.S.C. § 1437f(o)(8)(B)-(D). Tenants must also re-certify family income and
composition annually to continue in the program. 24 C.F.R. § 982.516.
Thompson v. Boulder Cnty. Hous. Auth., No. 16-CV-00361-GPG, 2016 WL 852893, at
*1–2 (D. Colo. Mar. 4, 2016) (citing Khan v. Bland, 630 F.3d 519, 523-24 (7th Cir. 2010)).
Based on the alleged failure of DHA to pay Plaintiff’s rent pursuant to the Section
8 housing voucher, Plaintiff asserts eight claims for relief: (1) breach of contract; (2)
fraudulent inducement; (3) Violation of the Fair Housing Act; (4) Violation of Title VI of the
Civil Rights Act; (5) Violations of the Fourteenth Amendment’s Procedural Due Process
and Equal Protection Clauses; (6) Violations of the Spending Clause; (7) Intentional and
negligent infliction of emotional distress; and (8) Violations of Section 1981 and Section
1982 of the Civil Rights Act. ECF No. 1.
Accordingly, Plaintiff moves for an emergency TRO and asks the Court to (1) order
DHA to remit payment to Plaintiff’s landlord for all past-due rent owed (including interest
charged) under the lease agreement; (2) enjoin DHA from failing to comply with its
obligations under the Section 8 Housing Choice Voucher Program with respect to
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Plaintiff’s 	lease; 	(3) 	enjoin 	Holland 	Residential, 	LLC 	(“Sabine 	Apartments”), 	from
proceeding with any eviction actions against Plaintiff during the pendency of this litigation;
and (4) order DHA to provide Plaintiff with any documentation necessary to facilitate the
porting of her Section 8 voucher back to Flagstaff, or any other jurisdiction of Plaintiff’s
choosing, should Plaintiff elect to pursue this option. ECF No. 3.
II. 	LEGAL STANDARD
Federal Rule of Civil Procedure 65 authorizes a district court to enter preliminary
injunctions and issue TROs. Fed. R. Civ. P. 65(a), (b). The decision whether to issue a
TRO is committed to a district court’s sound discretion. Allen W. Hinkel Dry Goods Co.
v. Wichison Indus. Gas Co., 64 F.2d 881, 884 (10th Cir. 1933); see also 11A Charles Alan
Wright & Arthur R. Miller, Federal Practice and Procedure § 2951 (3d ed. 2023) (“The
issuance of a temporary restraining order is a matter that lies within the discretion of the
district court.”). The procedure and standards for determining whether to issue a TRO
mirror those for a preliminary injunction. See Emmis Commc’ns Corp. v. Media Strategies,
Inc., No. CIV. A. 00-WY-2507CB, 2001 WL 111229, at *2 (D. Colo. Jan. 23, 2001) (citation
omitted). “Preliminary injunctions are extraordinary remedies requiring that the movant’s
right to relief be clear and unequivocal.” Planned Parenthood of Kan. v. Andersen, 882
F.3d 1205, 1223 (10th Cir. 2018).
A party seeking preliminary injunctive relief must satisfy four factors: (1) a
likelihood of success on the merits; (2) a likelihood that the movant will suffer irreparable
harm in the absence of preliminary relief; (3) that the balance of equities tips in the
movant’s favor; and (4) that the injunction is in the public interest. Petrella v. Brownback,
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787 F.3d 1242, 1257 (10th Cir. 2015). A party seeking an injunction must demonstrate
that “all four of the equitable factors weigh in its favor,” Sierra Club, Inc. v. Bostick, 539
F. App’x 885, 888 (10th Cir. 2013), and a “plaintiff’s failure to prove any one of the four
preliminary injunction factors renders its request for injunctive relief unwarranted.” Vill. of
Logan v. U.S. Dep’t of Interior, 577 F. App’x 760, 766 (10th Cir. 2014).
In addition to the four factors, a district court must also consider whether the
movant’s request falls within one of the “disfavored injunction” categories. Those
categories of disfavored injunctions include those that will (1) alter the status quo, (2)
mandate an affirmative act by the defendant, or (3) afford all the relief that the movant
could expect to win at trial. Schrier v. Univ. of Colo., 427 F.3d 1253, 1259 (10th Cir. 2004).
Here, this is a disfavored injunction because it would mandate an affirmative act by DHA.
III. 	ANALYSIS
The Court has reviewed Plaintiff’s motion and complaint. While the Court may be
sympathetic to the Plaintiff’s plight, for the reasons stated below, the Court finds that
Plaintiff has not demonstrated that her request for this extraordinary relief is warranted.
To obtain injunctive relief, Plaintiff must first show that she will suffer irreparable
injury if her request for injunctive relief is denied. Schrier v. Univ. of Colo., 427 F.3d 1253,
1258 (10th Cir. 2005). “To constitute irreparable harm, an injury must be certain, great,
actual ‘and not theoretical.’ ” Heideman v. S. Salt Lake City, 348 F.3d 1182, 1189 (10th
Cir. 2003) (quoting Wis. Gas Co. v. FERC, 758 F.2d 669, 674 (D.C.Cir. 1985)). Irreparable
harm is more than “merely serious or substantial” harm. Id. (citation omitted). The party
seeking the preliminary injunction “must show that ‘the injury complained of is of such
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imminence that there is a clear and present need for equitable relief’ to prevent irreparable
harm.” Id. (citation omitted). Therefore, to demonstrate irreparable harm, Plaintiff “must
establish both that harm will occur, and that, when it does, such harm will be irreparable.”
Vega v. Wiley, 259 F.App'x 104, 106 (10th Cir. 2007).
Plaintiff alleges that she will suffer irreparable harm if her request for relief is denied
because she “faces imminent eviction and homelessness, which would exacerbate her
severe physical and mental conditions.” ECF No. 3 at 9. Plaintiff alleges she received an
eviction notice on December 14, 2024, and will be evicted by January 12, 2024. ECF No.
1 at 7-8, ECF No. 3 at 2. The Court recognizes the imminence of the eviction and the
potential harm that will come if Plaintiff is left homeless. However, the Court finds that
Plaintiff’s delay in seeking relief undermines a finding of irreparable harm. Plaintiff alleges
she entered into the lease on May 31, 2024, and that DHA has failed to pay her rent for
the entirety of the lease. ECF No. 1 at 8-9. But Plaintiff waited seven months—and until
her eviction was just days away—to seek relief. This undercuts a finding of irreparable
harm. See Fish v. Kobach, 840 F.3d 710, 753 (10th Cir. 2016) (explaining that delay in
seeking preliminary relief can cut against finding irreparable injury); GTE Corp. v.
Williams, 731 F.2d 676, 679 (10th Cir. 1984) (holding that delay in seeking an injunction
can be “an important factor in determining irreparable harm”).
Even if the Court were to find that Plaintiff has shown irreparable harm, Plaintiff
has not established that the other three factors are met. In particular, Plaintiff has not
demonstrated a likelihood of success on the merits of her claims. Plaintiff relies only on
conclusory allegations that fall short of establishing that the “extraordinary remedy” of a
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TRO should be granted, Bryant v. Nat'l Football League, No. 07-cv-02186-MSK-MJW,
2007 WL 305498, at *2 (D. Colo. Oct. 18, 2007).
Plaintiff’s conclusory allegations do not show a substantial likelihood of prevailing
on the merits of her claims. Prairie Band of Potawatomi Indians v. Pierce, 253 F.3d 1234,
1246 (10th Cir. 2001). Plaintiff’s complaint contains the bare allegations that “DHA
induced Plaintiff to move to Denver, Colorado, by misrepresenting its ability to manage
Plaintiff’s Section 8 voucher and fulfill its obligations to pay rent on Plaintiff’s behalf.” ECF
No. 1 at 5. But Plaintiff has not pleaded that DHA made a knowing misrepresentation of
a material fact, a required element of Plaintiff’s fraudulent inducement claim. A promise
concerning a future act can only be actionable as fraud if it is coupled with a present
intention not to fulfill the promise. Kinsey v. Preeson, 746 P.2d 542, 551 (Colo. 1987)
(citing Stalos v. Booras, 528 P.2d 254, 256 (Colo. 1974)). See also Frank v. Wells Fargo
Bank, N.A., No. 15–cv–02646–RBJ, 2016 WL 6212524, at *6 (D. Colo. Oct. 11, 2016)
(“[w]here the fact allegedly misrepresented is not an existing fact, but rather, a promise
to perform a particular act at a future time, the pleader must allege facts showing that, at
the time of the promise, the speaker consciously harbored a present intention not to
perform the promised act . . . . Under Colorado law, plaintiffs must therefore allege
sufficient facts suggesting that defendant intended not to perform that promised act at the
time it made that promise.”). And crucially, Plaintiff’s allegations and the exhibits
incorporated into the Complaint do not establish that DHA was under any obligation to
pay rent on her behalf. As explained above, the Section 8 housing voucher program
involves a series of steps that must be taken to establish eligibility and the issuance of a
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voucher. If a voucher is issued, the qualified participant can search for housing, and if a
property owner agrees to lease to the tenant under the program, the property owner (here,
Holland Residential, LLC a/k/a Sabine Apartments) must enter into a Housing Assistance
Payment contract with the public housing agency (here, DHA). Several steps must then
be taken to enter a lease that satisfies the requirements of 42 U.S.C. § 1437f(o)(7).
Plaintiff fails to allege that any of these requirements were satisfied. At most, Plaintiff’s
complaint alleges her belief that she was entitled to a Section 8 housing voucher and that
there was communication between herself, DHA, and Sabine Apartments discussing the
same. But this, without more, does not show that the necessary steps were taken to
establish DHA’s obligation to pay Plaintiff’s rent under her current lease. Moreover,
Plaintiff fails to set forth any specific allegations that DHA’s failure to pay her rent or her
pending eviction is the result of discrimination on the basis of her race or discrimination.
Absent any allegations that the eviction is for any reason other than Plaintiff’s failure to
pay rent, Plaintiff has not demonstrated a substantial likelihood of prevailing on the merits
of her claims.
Additionally, Plaintiff did not satisfy the procedural requirements for obtaining an
ex parte TRO. Rule 65(b) states that a TRO may be issued without written or oral notice
to the adverse party or its attorney only if:
(A) specific facts in an affidavit or a verified complaint clearly show
that immediate and irreparable injury, loss, or damage will result to the
movant before the adverse party can be heard in opposition; and
(B) the movant's attorney certifies in writing any efforts made to give
notice and the reasons why it should not be required.
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Fed. R. Civ. P. 65(b)(1). This Court has stated that it “shall not consider an ex parte
motion for temporary restraining order” except as provided in Fed. R. Civ. P. 65(b)(1).
D.C.COLO.LCivR 65.1. Here, while Plaintiff’s Complaint is verified, the Court finds under
Rule 65(b)(1)(A) that Plaintiff has not “clearly shown that immediate and irreparable injury
will result to her before the adverse party can be heard in opposition.” Id. Plaintiff received
the eviction notice on December 13, 2024, but did not file her motion until January 7,
2025. ECF No. 3. Plaintiff has not explained why she was unable to file her motion and
notify DHA of her motion at an earlier date. The motion also does not show that Plaintiff
attempted to give notice of her request for a TRO to DHA as required by Rule 65(b)(1)(B).
See 	Brown 	v. 	Deutsche 	Bank 	Nat'l 	Trust, 	No. 	10-cv-02287-ZLW-MJW, 	2010 WL
4256212, at *2 (D. Colo. Sept. 28, 2010) (applying the requirement of Fed. R. Civ. P.
65(b)(1)(B) to a pro se plaintiff's motion for TRO); see also Bender v. Citimortgage Inc.,
No. 12-cv-02896-WYD-KMT, 2012 WL 12873517, at *1 (D. Colo. Nov. 9, 2012).
Additionally, Plaintiff failed to comply with D.C.COLO.LCivR 65.1, which states that a
motion for TRO “shall be accompanied by a certificate of counsel or an unrepresented
party, stating: (1) that actual notice of the time of filing the motion, and copies of all
pleadings and documents filed in the action to date or to be presented to the court at the
hearing, have been provided to opposing counsel and any unrepresented adverse party;
or (2) the efforts made by the moving party to provide the required notice and documents.”
Id. Plaintiff has failed to comply with this rule or offer any explanation why she could not
provide such notice.
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IV. 	CONCLUSION
Thus, for the reasons stated herein, Plaintiff’s Emergency Motion for Temporary
Restraining Order and Injunctive Relief, ECF No. 3, is DENIED.
DATED: January 9, 2025
BY THE COURT:
_____________________________
REGINA M. RODRIGUEZ
United States District Judge
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