                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-29-2009

Pondexter v. Dept of Housing
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-4431




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Recommended Citation
"Pondexter v. Dept of Housing" (2009). 2009 Decisions. Paper 1460.
http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1460


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                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 07-4431
                                      ___________

                                EARL A. PONDEXTER,
                                                Appellant

                                            v.

   DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT; ALLEGHENY
                  COUNTY HOUSING AUTHORITY
               ____________________________________

                    On Appeal from the United States District Court
                       for the Western District of Pennsylvania
                           (D.C. Civil Action No. 01-2161)
                     District Judge: Honorable David S. Cercone
                     ____________________________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                    April 17, 2009

          Before: FISHER, JORDAN and VAN ANTWERPEN, Circuit Judges

                             (Opinion filed: April 29, 2009)
                                     ___________

                                       OPINION
                                      ___________

PER CURIAM

      Earl A. Pondexter appeals from an order of the United States District Court for the

Western District of Pennsylvania denying his motion to reconsider the District Court’s

order granting summary judgment in favor of defendant Allegheny County Housing
Authority (ACHA).

       On October 15, 1997, Pondexter applied for a Section 8 voucher administered by

ACHA. The voucher never issued. In November 1998, Pondexter filed a second

application and a voucher issued on November 24, 1998. On March 24, 1999, ACHA

determined Pondexter was not eligible for the two-bedroom unit as a disability

accommodation, and that the voucher had issued in error. Pondexter admits he knew as

of that date that ACHA had found him ineligible. He requested a grievance hearing, but

failed to attend. On May 7, 1999, he filed a Housing Discrimination Complaint with the

Office of Fair Housing and Equal Opportunity. ACHA subsequently considered new

information regarding Pondexter’s psychological disability and his son and determined he

was eligible for the desired voucher as of June 1999. ACHA notified Pondexter of his

eligibility, but Pondexter refused the voucher, indicating his preference to file a federal

law suit. The Office of Fair Housing and Equal Opportunity completed its administrative

investigation in October 1999, concluding that ACHA had not denied Pondexter a

reasonable accommodation.

       On November 15, 2001, Pondexter filed a pro se action in the District Court

against the Department of Housing and Urban Development (“HUD”) and ACHA.

Pondexter alleged that ACHA failed to issue him a Section 8 voucher for a two-bedroom

apartment, in violation of the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq.,

the Fair Housing Act, 42 U.S.C. § 3601 et. seq., Section 504 of the Rehabilitation Act of



                                              2
1973, 29 U.S.C. § 794, and 42 U.S.C. § 1983. The District Court granted HUD’s motion

to dismiss. In 2003, ACHA sought to amend its answer to include a statute of limitations

defense. In 2006, the District Court permitted ACHA to move for summary judgment on

the statute of limitations issue. Concluding that Pondexter’s claims were time-barred, the

District Court granted ACHA’s motion and closed the case. After the District Court

denied Pondexter’s timely motion to reconsider, Pondexter timely appealed.

       We have jurisdiction under 28 U.S.C. § 1291. We review a District Court’s order

granting summary judgment de novo. MBIA Ins. Corp. v. Royal Indem. Co., 426 F.3d

204, 209 (3d Cir. 2005). Summary judgment is proper only if it appears “that there is no

genuine issue as to any material fact and that the movant is entitled to judgment as a

matter of law.” Fed. R. Civ. P. 56(c).

       In his notice of appeal, Pondexter asserts that this matter was scheduled for trial in

2004, but that the District Court improperly granted summary judgment to ACHA on the

basis of the statutes of limitations late in the course of the litigation.1 Pondexter primarily

objects to the belated nature of ACHA’s motion for summary judgment, and the District

Court’s willingness to entertain such a motion on the proverbial eve of trial.

       The statute of limitations for claims under the FHA, ADA, Section 504 of the

Rehabilitation Act and § 1983 is two years. See 42 U.S.C. § 3613(a)(1)(A) (FHA claim);



  1
   Pondexter does not raise any arguments as to the earlier dismissal of his claims against
HUD. Therefore, we will not review the District Court’s order granting HUD’s motion to
dismiss.

                                               3
Disabled in Action v. SEPTA, 539 F.3d 199, 208 (3d Cir. 2008) (claims under Title II of

the ADA and Section 504); Kost v. Kozakiewicz, 1 F.3d 176, 190 (3d Cir. 1993).

Pondexter does not dispute that he knew of the harm alleged – ACHA’s denial of a

voucher for a two-bedroom apartment – on March 24, 1999, and that the Office of Fair

Housing and Equal Opportunity sent Pondexter a letter on October 14, 1999, stating that

the investigation had been concluded. Therefore, Pondexter’s claims accrued more than

two years before he filed suit, and all of his claims are time-barred.2

       The District Court’s decision to consider ACHA’s belated summary judgment

motion was not an abuse of discretion under the circumstances of this case because

Pondexter suffered no prejudice, as understood in our case law.3 The statute of

limitations is an affirmative defense and failure to raise it in an appropriate responsive

pleading or motion may result in waiver. Fed. R. Civ. P. 8(c); Chainey v. Street, 523 F.3d

200, 209 (3d Cir. 2008). However, waiver is not automatic, and the statute of limitations

may be asserted after an answer has been filed, where the non-movant would not suffer



  2
    Pondexter asserts that he received several letters from HUD after the October 14, 1999
letter, including a December 12, 2000 letter indicating that his claim had been
investigated and “was being closed.” Pondexter relies on this language to suggest that the
administrative proceedings continued – and the statute of limitations on his FHA claim
was tolled – until that date. The October 14, 1999 letter states that Pondexter’s claim was
investigated, it was found to lack merit and the case was closed. The letter further states
that FHEO lacks jurisdiction to take further action. We believe this language should have
put Pondexter on notice that the administrative proceeding had ended.
  3
   We review a District Court’s decision on the question of waiver for abuse of
discretion. Cetel v. Kirwan Fin. Group, Inc., 460 F.3d 494, 506 (3d Cir. 2006).

                                              4
prejudice. Cetel v. Kirwan Fin. Group, Inc., 460 F.3d 494, 506 (3d Cir. 2006).

Pondexter, who was put on notice in 2003 that ACHA sought to assert a statute of

limitations defense, had ample time to explore the issue and prepare a response to

ACHA’s motion for summary judgment in 2006. Id. Therefore, Pondexter suffered no

prejudice by ACHA’s delay, and the District Court properly granted summary judgment

on Pondexter’s claims.4

       For these reasons, we will affirm the order of the District Court. Pondexter’s

motion to stay the appeal is denied as moot.5 ACHA’s motion for leave to file a surreply

is granted.




  4
  In arriving at these conclusions, we have considered Pondexter’s Memorandum on
Supreme Court precedent.
  5
    In his appellate brief, Pondexter offers no substantive arguments relevant to our
review of the District Court’s order. Instead, he attacks an order in a related, but separate,
matter before a different District Judge, alleges the existence of a conspiracy among
judges of the Western District of Pennsylvania, faults the U.S. Attorney for failing to
intervene to “abate the [constitutional] violations” alleged, and generally alleges
corruption and judicial misconduct. We decline to comment on such allegations.

                                              5
