CHARLES P. PRIDE Plaintiff,
FEMA, Federal Emergency Management Agency; MALE AND FEMALE JOHN DOES who may also be known as PHILLIP STROUSE and SUE ANN LONDON, FEMA TRAILER MANAGERS in their official and individual capacities; BILOXI DIRECTOR OF COMMUNITY DEVELOPMENT JERRY CREEL in his official and individual capacity; BILOXI CITY CODE ENFORCEMENT OFFICER MIKE ANDREWS in his official and individual capacity, AS PREVIOUSLY UNKNOWN DEFENDANTS. OTHER UNKNOWN DEFENDANTS Defendants,
MEMORANDUM OPINION AND ORDER GRANTING FEMA'S THIRD MOTION TO DISMISS AND GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT
HALIL SULEYMAN OZERDEN, District Judge.
BEFORE THE COURT is Defendant, the Federal Emergency Management Agency's ("FEMA's") Third Motion  to Dismiss, and pro se Plaintiff, Charles P. Pride's Motion  for Summary Judgment. Pride has filed a two-paragraph Response  to FEMA's Motion . FEMA has filed a Response  to Pride's Motion, and Pride has filed a Reply . Pride also addresses his claims against FEMA in his Response  to the Motion  for Summary Judgment filed by Defendants Jerry Creel and Mike Andrews. Pride has submitted exhibits which he contends support his claims against FEMA, and FEMA has also submitted exhibits relevant to Pride's claims. The Court has considered all of the aforementioned Motions  and exhibits and will convert FEMA's Third Motion  to Dismiss to one for summary judgment pursuant to Federal Rule of Civil Procedure 12(d).
After consideration of the Motions , the record, and relevant legal authorities, the Court finds that FEMA's Third Motion  to Dismiss, which the Court construes as one for summary judgment, should be granted, and Pride's Motion  for Summary Judgment should be granted in part and denied in part. Pride's claims against FEMA should be dismissed with prejudice, and FEMA's Counterclaim  against Pride should be dismissed with prejudice. Judgment should nevertheless be rendered against Pride in the amount of $660.99 because Pride failed to attend a duly noticed settlement conference, and Defendants' fees and costs were assessed against him. Magistrate Judge's Order .
Pride maintains that his home in Biloxi, Mississippi, was heavily damaged by Hurricane Katrina, which occurred in August 2005. Id. at p. 1. On March 12, 2006, FEMA leased Pride a travel trailer for temporary housing pursuant to its delegated authority to do so under the Robert T. Stafford Disaster Relief and Emergency Assistance Act of 1988 ("Stafford Act"), 42 U.S.C. §§ 5121-5207, and implementing regulations.
During the period of July through December 2008, Pride was not living in the FEMA trailer but was instead living in Wisconsin, where he owned a residence. Pl.'s Resp.  at p. 3; Dep. of Pride [95-7] at p. 5; FEMA Addendum to Lease [97-2] at pp. 16-17. Before leaving for Wisconsin, Pride had the power company disconnect the electricity to the FEMA trailer. Pl.'s Resp.  at p. 2; Dep. of Pride [95-7] at pp. 3-6. By letter dated December 2, 2008, Jerry Creel, Director of Community Development for the City of Biloxi, advised FEMA Mobile Home Support Specialist Kelly Derouen that Pride's Temporary Storm Trailer Permit had expired and would not be renewed because the trailer "remains unoccupied, without electrical service and is currently being used only for storage." Creel Letter [127-1] at p. 30. Creel requested that FEMA remove the trailer at its earliest convenience. Id.
The Stafford Act's implementing regulations state that "FEMA-provided or funded housing units" must be "complete with utilities." 44 C.F.R. § 206.117(b)(1)(ii)(E). They also require that "[a]ny site upon which a FEMAprovided housing unit is placed must comply with applicable State and local codes and ordinances, ...." 44 C.F.R. § 206.117(b)(1)(ii)(C). FEMA Manufactured Housing Operations Specialist Carolyn Stafford contacted Pride by telephone on December 9, 2008, and advised him that the FEMA trailer "must be deactivated since he has been out of town for three months and has not used the unit as permanent housing, there are no utilities connected, nor has he met with his CW." Stafford Note [127-1] at p. 45. Stafford informed Pride that "FEMA could not allow [the] unit to remain on site without the proper permits from the City." Id.
Pride indicated that he understood and subsequently wrote Stafford a letter, stating: "Despite having a real need for this housing for my elevation and rebuild this winter[, ] I understand that per Biloxi's request the trailer will be removed on Jan. 5/09." Pride Letter [97-3] at p. 34. On January 5, 2009, Pride was present when FEMA retrieved the trailer. Inspection Report [114-a]. Pride signed a FEMA Temporary Housing Unit Inspection Report, indicating that he was moving out and returning the trailer to FEMA. Inspection Report [114-1]. The Inspection Report notes that the trailer was returned with extensive interior damage and without its battery, a tire, and two mattresses. Id.
Pride now asserts that FEMA violated his procedural and substantive due process rights when it deactivated and retrieved the FEMA trailer. Pl.'s Third Am. Compl.  at pp. 1-4. Pride's Complaint also characterizes FEMA's actions as a "taking without compensation." Id. at p. 2. Pride has since dismissed his takings claim but "continues with his claims sounding in tort under Section 1983." Pl.'s Stip. of Dism. . FEMA maintains that Pride cannot establish a due process violation because he had no constitutionally protected property interest in continuing use of the trailer FEMA leased to him. FEMA's Mem.  at pp. 8-9. FEMA submits that temporary housing assistance under the Stafford Act is a discretionary benefit and not an entitlement that triggers protection under the Due Process Clause of the Fifth Amendment to the United States Constitution. Id.
FEMA has filed a Counterclaim against Pride contending that he is liable to the United States for violation of the False Claims Act, 31 U.S.C. §§ 3729-3733, and under common law "for his fraudulent acts, false claims, and false statements... in order to obtain Federal disaster assistance following Hurricane Katrina...." FEMA's Answer and Countercl.  at pp. 5-6. FEMA essentially alleges that Pride falsely claimed that his primary residence was in Biloxi when it was not. Id. at pp. 10-14. FEMA asserts that Pride received $21, 046.19 in disaster assistance that he should not have, and seeks treble damages in the amount of $63, 138.57, "plus a civil penalty in the amount of $5, 500 to $11, 000 per violation, applicable interest, and costs." Id. at p. 13. On May 18, 2012, the United States Attorney's Office, Southern District of Mississippi, declined to criminally prosecute Pride in relation to his claim for federal disaster benefits following Hurricane Katrina, finding "[n]o evidence of intent to commit fraud." Homeland Security Mem. [97-2] at p. 25; FEMA Rep. [97-2] at p. 31. Pride seeks dismissal of FEMA's Counterclaim on this basis. Pl.'s Mem.  at pp. 10-11.
A. Legal Standard
Because the Court has considered matters outside the pleadings and all parties have been given a reasonable opportunity to present all material pertinent to FEMA's 12(b)(6) Motion  to Dismiss, the Court hereby converts FEMA's Third Motion  to Dismiss to one for summary judgment. Fed.R.Civ.P. 12(d); Order  Providing Notice.
A motion for summary judgment shall be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56. In deciding whether summary judgment is appropriate, the Court views facts and inferences in the light most favorable to the nonmoving party. RSR Corp. v. Int'l Ins. Co., 612 F.3d 851, 858 (5th Cir. 2010). If the evidence is merely colorable, or is not significantly probative, summary judgment is appropriate. Cutting Underwater Techs. USA, Inc. v. ENI U.S. Operating Co, 671 F.3d 512, 516 (5th Cir. 2012)(citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)). "[M]ere conclusory ...