Thomas v. Wright et al
MEMORANDUM OPINION, as set out, re Dfts' Motion to Dismiss and Incorporated Memorandum of Law in Support of Motion to Dismiss 20 , Pla's Motion for Default Judgment against Dft Middlebrooks 26 , and Pla's Motion for leave to File an Amended Complaint 33 . A separate order will be entered. Signed by Judge R David Proctor on 10/10/14. (CTS, )
2014 Dec-10 AM 10:27
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
JAMES EARL THOMAS,
ANN WRIGHT, et al.,
Case No.: 2:14-cv-01604-RDP
This matter is before the court on (1) Defendants’ Motion to Dismiss and Incorporated
Memorandum of Law in Support of Motion to Dismiss (Doc. # 20), (2) Plaintiff’s Motion for
Default Judgment against Defendant Middlebrooks (Doc. # 26), and (3) Plaintiff’s Motion for
Leave to File an Amended Complaint (Doc. # 33).
Plaintiff filed his original Complaint on August 18, 2014, alleging violations of 42 U.S.C.
§ 1983, and 42 U.S.C. § 1985(3), and 42 U.S.C. § 1986. (See Doc. # 1). Plaintiff alleged that
Paul Middlebrooks (his former roommate), Frankie Lackey, and others at the Firehouse Shelter
conspired to “run” plaintiff from his apartment by creating circumstances that would make it
unbearable to continue living in the apartment. (Doc. # 1 at ¶ 23).
Defendants (except Middlebrooks) filed a motion to dismiss Plaintiff’s claims pursuant to
Federal Rule of Civil Procedure 12(b)(6). (Doc. # 8). The court denied Defendants’ Motion but
ordered Plaintiff to amend his Complaint to more precisely state a claim for relief. (Doc. # 11).
On September 19, 2014, Plaintiff filed an Amended Complaint which omitted the claims asserted
pursuant to 42 U.S.C. § 1985(3), and 42 U.S.C. § 1986. (Doc. # 15). Instead, Plaintiff asserted
only a claim under 42 U.S.C. § 1983. (Doc. # 15).
Defendants’ Motion to Dismiss the Amended Complaint
On October 6, 2014, Defendants (except Middlebrooks) filed a Motion to Dismiss
Plaintiff’s Amended Complaint on various grounds, including Plaintiff’s failure to plead that any
of the Defendants are state actors. (Doc. # 20). To prevail in a civil rights action under § 1983, a
plaintiff must show that: (1) an act or omission deprived him of a right, privilege, or immunity
secured by the Constitution or laws of the United States; and (2) the act or omission was done by
a person acting under color of law. Marshall Cnty. Bd. of Educ. v. Marshall Cnty. Gas Dist., 992
F.2d 1171, 1174 (11th Cir. 1993). At a November 17, 2014 status conference, Plaintiff conceded
that none of the Defendants are state actors. (See also Doc. # 33). Therefore, Defendants’
Motion to Dismiss (Doc. # 20) is due to be granted.
Plaintiff’s Motion for Default Judgment Against Middlebrooks
It appears from the record that Defendant Paul Middlebrooks was served with the
Plaintiff’s Amended Complaint on September 24, 2014, although the certified mail return receipt
was not signed by him.
(Doc. # 17).
Defendant Middlebrooks failed to respond to the
Therefore, Plaintiff filed a Motion for Default Judgment against Defendant
Middlebrooks. (Doc. # 26). Plaintiff seeks to pursue entry of default against Middlebrooks on
his Section 1983 claim even though he concedes that Defendant Middlebrooks is not a state
In accordance with Rule 55 of the Federal Rules of Civil Procedure, a court may enter a
default judgment against a party who has failed to plead or otherwise defend. Fed.R.Civ.P. 55.
However, the court has discretion to determine if entry of a default judgment is appropriate. See
Hamm v. Dekalb Cnty., 774 F.2d 1567, 1575 (11th Cir. 1985). “[A] default judgment cannot
stand on a complaint that fails to state a claim.” Chudasama v. Mazda Motor Corp., 123 F.3d
1353, 1370 n. 41 (11th Cir. 1997). Because the sole claim in Plaintiff’s Amended Complaint
fails to state a claim as a matter of law, Plaintiff’s Motion for Default Judgment against
Defendant Middlebrooks (Doc. # 26) is due to be denied.
Plaintiff’s Motion for Leave to Amend
In light of the admitted deficiencies in Plaintiff’s Section 1983 claim, Plaintiff seeks
leave to amend his Complaint a second time in order to re-assert his Section 1985(3) claim, as
well as to assert claims under 42 U.S.C. ‘ 1986, Title VIII of the Civil Rights Act of 1968, the
Fair Housing Act, Section 504 of the Rehabilitation Act of 1973, and Section 109 of Title A of
the Housing and Community Development Act of 1974, and Title VI of the Civil Rights Act of
1964. (Doc. # 33-1).
It is axiomatic that the district court should freely give leave to amend “when justice so
requires.” Fed.R.Civ.P. 15(a); see also Foman v. Davis, 371 U.S. 178, 182 (1962). Nonetheless,
“a motion to amend may be denied on numerous grounds such as undue delay, undue prejudice
to the defendants, and futility of the amendment.” Mann v. Palmer, 713 F.3d 1306, 1316 (11th
Cir. 2013) (quotation omitted). Here, Plaintiff’s Motion for Leave to Amend is due to be denied
because the proposed amendment would be futile.
The claims asserted in the proposed amended complaint are premised on an alleged
conspiracy to drive Plaintiff from his apartment because he is not gay. (Doc. # 33-1 at pp. 3-8).
Plaintiff’s § 1985(3) Claim
“To state a claim under § 1985(3), a plaintiff must allege the following: (1) defendants
engaged in a conspiracy; (2) the conspiracy’s purpose was to directly or indirectly deprive a
protected person or class the equal protection of the laws, or equal privileges and immunities
under the laws; (3) a conspirator committed an act to further the conspiracy; and (4) as a result,
the plaintiff suffered injury to either his person or his property, or was deprived of a right or
privilege of a citizen of the United States.” Jimenez v. Wellstar Health System, 596 F.3d 1304,
1311-12 (11th Cir. 2010) (citing Johnson v. City of Fort Lauderdale, 126 F.3d 1372, 1379 (11th
Cir. 1997)). “When the alleged § 1985(3) conspirators are private actors, the plaintiff must
demonstrate that the conspiracy was aimed at rights constitutionally protected against private
impairment.” Jimenez, 596 F.3d at 1312 (citing Bray v. Alexandria Women’s Health Clinic, 506
U.S. 263, 274 (1993) and Park v. City of Atlanta, 120 F.3d 1157, 1162 (11th Cir. 1997)). “These
rights include only select ‘serious constitutional right[s].’” Id. (citing Cook v. Randolph County,
573 F.3d 1143, 1157 (11th Cir. 2009)) (emphasis added).
“The only rights the Supreme Court has expressly declared enforceable against private
conspirators under § 1985(3) are the right to interstate travel and the right against involuntary
servitude.” Jimenez, 596 F.3d at 1312 (citing Bray, 506 U.S. at 278). As the Eleventh Circuit
has observed, the Supreme Court has held that even freedom of speech and the rights protected
under Title VII “are insufficient to form the basis of § 1985(3) actions against private
conspirators.” Jimenez, 596 F.3d at 1312 (citing Bray, 506 U.S. at 278 and Great Am. Fed. Sav.
& Loan Ass’n v. Novotny, 442 U.S. 366, 378 (1979)). Because neither interstate travel nor the
right against involuntary servitude are at issue in this case, Plaintiff’s proposed § 1985(3) claim
fails to state an actionable claim.
Moreover, in addition, the second element of a § 1985(3) claim “requires a showing of
some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the
conspirators’ action.” Childree v. UAP/GA CHEM, Inc., 92 F.3d 1140, 1147 (11th Cir. 1996)
(internal quotation omitted but quoting Lucero v. Operation Rescue, 954 F.2d 624, 628 (11th Cir.
1992) and in turn quoting United Bhd. of Carpenters & Joiners of Am., Local 610 v. Scott, 463
U.S. 825, 829 (1983)). And the Eleventh Circuit has “repeatedly  declined to extend [section
1985(3)] to apply in non-racial contexts.” Childree, 92 F.3d at 1147 (citing, e.g., Lucero, 954
F.2d at 628). Because Plaintiff has not alleged race discrimination, Plaintiff’s proposed §
1985(3) claim fails to state an actionable claim for this reason also.
Plaintiff’s § 1986 Claim
“[A] § 1986 action is predicated on a successful conspiracy action under § 1985.”
Morast v. Lance, 807 F.2d 926, 30 (11th Cir. 1987). It follows, therefore, that because Plaintiff’s
proposed § 1985(3) claim fails to state a claim, his proposed § 1986 claim is also due to be
Plaintiff’s FHA Claim
Plaintiff’s claim under the FHA asserts that Plaintiff was discriminated against because of
his sexual orientation C i.e., that he is heterosexual. The FHA does not prohibit discrimination
based on sexual orientation in the sale or rental of housing. See Ordelli v. Mark Farrell &
Associates, 2013 WL 1100811, * 2 (D. Or. 2013); Miller v. 270 Empire Realty LLC, 2012 WL
1933798, * 5 (E.D. N.Y. 2012) (FHA claims cannot be based on sexual orientation); Fair
Housing Center of Washtenaw County, Inc. v. Town and Country Apartments, 2009 WL 497402,
* 3, n.1 (E.D. Mich. 2009) (“Sexual orientation is not protected under the FHA.”); Swinton v.
Fazekas, 2008 WL 723914, *5 (W.D. N.Y. 2008) (discrimination based on sexual orientation not
covered under the FHA). Therefore, Plaintiff’s proposed FHA claim fails to state a claim as a
matter of law.
Plaintiff’s Rehabilitation Act Claim
Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, prohibits discrimination
on the basis of disability by recipients of federal financial assistance. Plaintiff’s proposed
amended complaint does not allege that he suffers from a disability or that he was discriminated
against on the basis of a disability. Therefore, an amendment to state such a legal claim would
have no factual basis and would be futile.
Plaintiff’s Housing and Community Development Act Claim
The majority of courts which have considered the issue, have determined that in enacting
Section 109 of Title A of the Housing and Community Development Act of 1974, 42 U.S.C.A. §
5309, Congress did not intend that section to provide a private right of action. See, e.g.,
Freeman v. Fahey, 374 F.3d 663, 666 (8th Cir. 2004); Latinos Unidos De Chelsea En Accion
(LUCHA) v. Sec’y of HUD, 799 F.2d 774, 795 (1st Cir. 1986); Reyes v. Erickson, 238 F.Supp.2d
632, 636-37 (S.D. N.Y. 2003); Am. Conveyor Corp. v. Municipality of Guanica, 614 F.Supp.
922, 927 (D. P.R. 1985); Nabke v. United States Dep’t of HUD, 520 F.Supp. 5, 9 (W.D. Mich.
1981). The court agrees with these well-reasoned decisions. Because the statute does not
provide a private cause of action, an amendment to state such a claim would be futile.
Plaintiff’s Title VI of the Civil Rights Act of 1964 Claim
Title VI of the Civil Rights Act of 1964 prohibits discrimination on the basis of race,
color or national origin in programs and activities receiving federal funds. See 42 U.S.C. §
2000d et seq. Plaintiff has alleged discrimination on the basis of his sexual orientation. Title VI
of the Civil Rights Act of 1964 is inapplicable to Plaintiff’s case because it does not address
discrimination based on sexual orientation, the basis of Plaintiff’s purported discrimination
See Hall v. Prince George’s County, 2003 WL 23350258, * 4 (D. Md. 2003).
Therefore, again, an amendment to state such a claim would be futile.
Because all of the proposed claims in Plaintiff’s proposed amended complaint fail as a
matter of law, the amendment would be futile. Therefore, Plaintiff’s Motion for Leave to File an
Amended Complaint (Doc. # 33) is due to be denied.
A separate order will be entered.
DONE and ORDERED this December 10, 2014.
R. DAVID PROCTOR
UNITED STATES DISTRICT JUDGE
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