Johnson et al v. Housing Authority Birmingham District et al

Filing 42

MEMORANDUM OPINION and ORDER re 1 Complaint; The Plaintiffs seek declaratory and injunctive relief and damages against the Housing Authority of Birmingham District, the City of Birmingham, and Southside Development Company, LLC; As stated within, the plaintiffs' first eight claims related to the redevelopment are not yet ripe for review; As to their last two claims for retaliation, the plaintiffs have not stated a viable claim because their allegations are not sufficient to show a causa l connection between any protected activity and the retaliatory acts or to show conduct that rises to the level of an adverse act; Accordingly, the court GRANTS the defendants' motions to dismiss, 25 28 and 29 , and DENIES the plaintiffs� 39; motion for injunctive relief, 2 , as MOOT; HABD's motion for leave, 27 , is GRANTED, and the plaintiff's motion strike, 34 , is DENIED; The plaintiffs' claims are DISMISSED WITHOUT PREJUDICE. Signed by Judge Abdul K Kallon on 1/30/2018. (KBB)

FILED
2018 Jan-30 PM 04:30
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

IRENE JOHNSON, et al.,
Plaintiffs,
v.
HOUSING AUTHORITY
BIRMINGHAM DISTRICT, et al.,
Defendants.

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Civil Action Number:
2:17-cv-01474-AKK

MEMORANDUM OPINION AND ORDER
Plaintiffs Irene Johnson, Raymond Fuller, Catherine Headen, Linda Green,
and Rose Crowder are residents of Southtown Court Public Housing Community
(“Southtown”) in Birmingham, Alabama. They seek declaratory and injunctive
relief and damages against the Housing Authority of Birmingham District
(“HABD”), the City of Birmingham (the “City”), and Southside Development
Company, LLC (“Southside”) based on allegations that the defendants have
discriminated against them in the proposed redevelopment of Southtown and
retaliated against them for exercising rights under federal and state fair housing
laws.

Doc. 22.

The plaintiffs moved for a temporary restraining order and

preliminary injunction to prevent the defendants from proceeding with

redevelopment plans at Southtown, see doc. 2, and the defendants moved to
dismiss this action, docs. 25; 28; 29.1 The motions are fully briefed and ripe for
review. See docs. 3; 26; 28; 29; 33; 39; 41. Because Article III of the U.S.
Constitution limits federal court jurisdiction to actual “cases” and “controversies,”
U.S. CONST. art III, § 2, and because the plaintiffs’ challenge to the proposed
redevelopment rests upon contingent future events that may or may not occur and,
as such, is not yet ripe for adjudication, see Texas v. United States, 523 U.S. 296,
300 (1998), for the reasons stated more fully below, the defendants’ motions to
dismiss, docs. 25; 28; 29, are due to be granted, and the plaintiffs’ motion for
injunctive relief, doc. 2, is due to be denied.
I.

STANDARD OF REVIEW
Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain “a

short and plain statement of the claim showing that the pleader is entitled to relief.”
“[T]he pleading standard Rule 8 announces does not require ‘detailed factual
allegations,’ but it demands more than an unadorned, the-defendant-unlawfullyharmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Mere “labels and conclusions”
or “a formulaic recitation of the elements of a cause of action” are insufficient.
Iqbal, 556 U.S. at 678 (citations and internal quotation marks omitted). “Nor does
1

Also pending before the court are HABD’s motion for leave to exceed the court’s page
limitation by a single page, doc. 27, which is due to be granted, and the plaintiffs’ motion to
strike, doc. 34, which is due to be denied, as discussed below.

2

a complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual
enhancement.’” Id. (citing Twombly, 550 U.S. at 557).
Federal Rule of Civil Procedure 12(b)(6) permits dismissal when a
complaint fails to state a claim upon which relief can be granted. “To survive a
motion to dismiss, a complaint must . . . state a claim to relief that is plausible on
its face.” Iqbal, 556 U.S. at 678 (citations omitted) (internal quotation marks
omitted).

A complaint states a facially plausible claim for relief “when the

plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Id. (citation
omitted). The complaint must establish “more than a sheer possibility that a
defendant has acted unlawfully.” Id.; see also Twombly, 550 U.S. at 555 (“Factual
allegations must be enough to raise a right to relief above the speculative level.”).
Ultimately, the line between possibility and plausibility is a thin one, and making
such a determination is a “context-specific task that requires the reviewing court to
draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 679. When
considering a motion to dismiss under Rule 12(b)(6), the court accepts “the
allegations in the complaint as true and construe[s] them in the light most favorable
to the plaintiff.” Hunt v. Aimco Props., L.P., 814 F.3d 1213, 1221 (11th Cir.
2016).

3

A motion to dismiss based on ripeness implicates Federal Rule of Civil
Procedure 12(b)(1), which authorizes a motion to dismiss based on the defense that
the court lacks subject-matter jurisdiction. “Attacks on subject matter jurisdiction
under Rule 12(b)(1) come in two forms, ‘facial’ and ‘factual’ attacks.” Morrison
v. Amway Corp., 323 F.3d 920, 924 n.5 (11th Cir. 2003) (citation omitted). Facial
attacks to jurisdiction are based on the allegations in the complaint, which the court
must take as true in deciding whether to grant the motion. Id. “Factual attacks
challenge subject matter jurisdiction in fact, irrespective of the pleading,” and the
court may consider extrinsic evidence when deciding a factual attack to
jurisdiction. Id. In such a case, “the trial court is free to weigh the evidence and
satisfy itself as to the existence of its power to hear the case.” Id. at 925 (quoting
Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir. 1990)).
II.

PROCEDURAL HISTORY AND FACTUAL BACKGROUND 2
Southtown is a 455-unit housing project that is owned and managed by

HABD and located on twenty-six acres near downtown Birmingham. Docs. 22 at
¶¶ 18-19; 1-2 at 9. Approximately 1,000 people currently live in Southtown. Doc.
22 at ¶ 22. The vast majority of the residents, including the plaintiffs, are African-

2

The facts taken from the Amended Complaint are assumed true and construed in the light most
favorable to the plaintiffs. The court also considers facts taken from declarations the defendants
submitted in support of their motions to dismiss, but only considers those facts for purposes of
determining if the court has subject matter jurisdiction over the plaintiffs’ claims.

4

American, and many of the residents are disabled or live in single-parent
households. Id. at ¶¶ 6-10, 22.
HABD hired a Camiros, Ltd. in 2014 as a “planning coordinator” to help
HABD formulate a strategy for the redevelopment of Southtown. Doc. 26-1 at ¶ 6.
In 2015, HABD announced that it would apply for a $30 million Choice
Neighborhoods grant through the U.S. Department of Housing and Urban
Development (“HUD”) to redevelop Southtown. Doc. 22 at ¶ 30. The Choice
Neighborhoods program is a competitive grant program dedicated to improving
distressed public housing by focusing in part on “replacing distressed housing with
quality, well-maintained, mixed-income housing.” Id. at ¶ 31; Doc. 1-3 at 1.
According to the plaintiffs, the focus on mixed-income housing leads to unfair and
discriminatory housing practices and causes displacement of low-income residents.
See doc. 22 at ¶ 28.
HABD issued a request for proposals (“RFP”) on June 30, 2016 to solicit
proposals from potential developer partners for the redevelopment. Docs. 26-1 at
¶ 8; 26-2; see also doc. 22 at ¶ 35. The RFP indicates that one of HABD’s goals for
the redevelopment of Southtown is to create a mixed-income community. See doc.
26-2 at 7, 9.

The plaintiffs assert that the RFP process “was riddled with

improprieties” in part because HABD amended the RFP twice without cause in
order to benefit Southside and because other developers with “more experience in
5

managing public housing residential redevelopments . . . were rejected without
justification.” Doc. 22 at ¶¶ 35, 36(c); see also Docs. 26-3 and 26-4.
In January 2017, HABD announced that it selected Southside as its
developer partner for the Southtown redevelopment project. Docs. 22 at ¶ 32; 26-1
at ¶ 10; 28 at 6, ¶ 3. Since that time Southside and HABD have negotiated a
memorandum of understanding that broadly defines the business relationship
between the two parties, doc. 26-1 at ¶ 10, and they have discussed the terms for
the negotiation of a “Master Development Agreement,” which will “require the
preparation of a Comprehensive Redevelopment Plan” for Southtown. Doc. 28 at
6-7, ¶ 4. Southside has also drafted a “Preliminary Pre-Development Schedule”
that had not been approved by HABD as of November 1, 2017. Id. at 7, ¶ 7.
Under the draft Preliminary Pre-Development Schedule, the Master Development
Agreement and Comprehensive Redevelopment Plan are to be completed in 2018.
Id.
The redevelopment process for Southtown has not been transparent for the
plaintiffs and residents of Southtown, and the plaintiffs assert that HABD and
Southside have not engaged the residents in the process so far. Doc. 22 at ¶¶ 3233, 39; see also doc. 1-4 at ¶ 7. The plaintiffs also assert that the defendants have
ignored or marginalized their concerns, withheld critical information about the
proposed redevelopment, and held redevelopment planning meetings at locations
6

the residents could not easily access. Doc. 22 at ¶¶ 32, 36. According to the
plaintiffs, “the proposed redevelopment plan submitted by Southside [] and
approved by HABD and the City” will have a disparate impact on African
Americans, displace a substantial number of Southtown residents, increase racial
segregation in Birmingham, violate fair housing laws, and fail to affirmatively
further fair housing. Id. at ¶¶ 34, 41-43. In addition, the plaintiffs assert that
HABD and the City approved the proposed redevelopment plan without the benefit
of an impact analysis that would indicate how the redevelopment will affect
segregation and fair housing in Birmingham. Id. at ¶¶ 34(a), 44.
The plaintiffs have purportedly faced retaliation for opposing the plan to
redevelop Southtown. Docs. 22 at ¶¶ 47-51; 1-4 at ¶ 9. After Irene Johnson
“became vocal about the redevelopment of Southtown, she received a lease
termination notice on her door from [] HABD for non-payment of rent.” Doc. 22
at ¶ 47. However, HABD “verbally retracted” the termination notice after Ms.
Johnson requested a grievance hearing and provided proof of payment. Id. Also in
July 2017, Ms. Johnson “was removed as Resident Council president” for
Southtown even though she had held the position for over fourteen years and was
elected to the position two months earlier for a three-year term. Id. at ¶ 50. As the
Resident Council president, Ms. Johnson had a key to the community meeting
room at Southtown, and she used the room to conduct community meetings. Id. at
7

¶ 49. However, as part of the alleged retaliatory conduct, HABD changed the
locks to the meeting room in August 2017, and informed residents that they could
not conduct community or neighborhood meetings on Southtown property without
prior approval. Id. at ¶¶ 49, 51; see also doc. 26-8.
The plaintiffs filed this action seeking a preliminary injunction and
temporary restraining order to prevent the defendants from proceeding with
redevelopment plans and have amended their complaint once. See docs. 1; 2; 22.
In claims one through eight of the Amended Complaint, the plaintiffs assert claims
for alleged violations of the federal Fair Housing Act (“FHA”), the Alabama Fair
Housing Law (“AFHL”), Section 504 of the Rehabilitation Act, and Title II of the
Americans with Disabilities Act. Doc. 22 at ¶¶ 52-77. The plaintiffs also assert two
claims for alleged retaliation in violation of the FHA and AFHL. Id. at ¶¶ 78-83.
III.

ANALYSIS
The defendants have moved to dismiss the plaintiffs’ claims on ripeness

ground and, as to the retaliation claims, on the sufficiency of the pleadings. The
court addresses these contentions below.
A.

Whether the Plaintiffs’ Claims Are Ripe for Judicial Review

The plaintiffs’ first eight claims are based on their allegations that the
proposed redevelopment plan will increase displacement, decrease the availability
of affordable housing in Birmingham, and promote segregation and housing
8

discrimination in violation of federal and state law. See doc. 22 at ¶¶ 33, 36, 39,
41-45, 52-77. The defendants argue that the plaintiffs’ claims relating to the
proposed redevelopment are not yet ripe for judicial review and, therefore, must be
dismissed for lack of subject matter jurisdiction. Docs. 26 at 7-11; 28 at 2-3.3 The
court agrees.
Article III of the U.S. Constitution limits federal court jurisdiction to actual
“cases” and “controversies.” U.S. CONST. art III, § 2; Nat’l Advertising Co. v. City
of Miami, 402 F.3d 1335, 1338-39 (11th Cir. 2005). “‘This case-or-controversy
doctrine fundamentally limits the power of federal courts in our system of
government, and helps to identify those disputes which are appropriately resolved
through judicial process.’”

Nat’l Advertising, 402 F.3d at 1339 (quotation

omitted). A dispute is ripe for judicial review when “‘a plaintiff shows he has
sustained, or is immediate danger of sustaining, a direct injury as a result of [the
challenged] act.” Id. (quoting Hallandale Prof’l Fire Fighters Local 2238 v. City
of Hallandale, 922 F.2d 756, 760 (11th Cir. 1991)) (alteration in original omitted).

3

The defendants submitted extrinsic evidence in support of their motions to dismiss, see docs.
26-1 – 26-10; 28 at 6-7, which the plaintiffs ask the court to strike, or, alternatively, the plaintiffs
ask the court to convert the defendants’ motion into a motion for summary judgment under Rule
56, doc. 34. The defendants’ argument that the plaintiffs’ claims are not yet ripe for judicial
review presents a factual challenge to the court’s jurisdiction because it attacks subject matter
jurisdiction “in fact, irrespective of the pleadings,” see Morrison, 323 F.3d at 924, n.5, and the
issue can be decided without considering the merits of the plaintiff’s claims. When evaluating a
factual challenge to subject matter jurisdiction, the court may consider matters outside of the
pleadings. Id. Thus, the motion to strike, doc. 34, is due to be denied.

9

On the other hand, “[a] claim is not ripe for adjudication if it rests upon ‘contingent
future events that may not occur as anticipated, or indeed may not occur at all.’”
Texas v. U.S., 523 U.S. 296, 300 (1998) (quoting Thomas v. Union Carbide
Agricultural Prod. Co., 473 U.S. 568, 580-81 (1985)).
The ripeness doctrine prevents federal courts from wasting their resources
by deciding cases prematurely. Beaulieu v. City of Alabaster, 454 F.3d 1219, 1227
(11th Cir. 2006) (citations omitted). The doctrine also protects administrative
agencies “‘from judicial interference until an administrative decision has been
formalized and its effects felt in a concrete way by the challenging parties.’” Nat’l
Advertising, 402 F.3d at 1339 (quoting Digital Props., Inc. v. City of Plantation,
121 F.3d 586, 590 (11th Cir. 1997)). Applying the ripeness doctrine requires
federal courts to consider two main issues: (1) whether the claim is fit for judicial
review; and (2) “‘the hardship to the parties of withholding court consideration.’”
Beaulieu, 454 F.3d at 1227 (quotation omitted). To evaluate those two issues,
courts “must consider the following factors: ‘(1) whether delayed review would
cause hardship to the plaintiffs; (2) whether judicial intervention would
inappropriately interfere with further administrative action; and (3) whether the
courts would benefit from further factual development of the issues presented.’”
Id. (quoting Ohio Forestry Ass’n, Inc. v. Sierra Club, 523 U.S. 726, 733 (1998)).

10

1.

The plaintiffs’ claims are not yet fit for judicial review.

The court begins its ripeness inquiry by considering if the plaintiffs’ claims
related to the redevelopment of Southtown are fit for judicial review.

In

addressing this issue, the court notes that the plaintiffs concede that “they have not
yet sustained a direct injury” due to the proposed redevelopment. Doc. 33 at 11.
Despite this admission, the plaintiffs assert nonetheless that they are “in immediate
danger of sustaining an injury.” Id. The court is not persuaded because the
defendants have not yet prepared or approved a redevelopment plan for Southtown,
or formulated plans for relocating Southtown’s residents during the redevelopment.
Docs. 26-1 at ¶ 11; 28 at 7, ¶ 6.4 Thus, many facts and issues regarding the
redevelopment are uncertain, including:

(1) where HABD will relocate the

plaintiffs during the redevelopment, (2) if and when the plaintiffs and other
residents will return to the Southtown community after the redevelopment, (3) how
many of the 455 affordable housing units currently at Southtown will be replaced
after the redevelopment, (4) what the ratio of affordable to market-rate housing
4

The plaintiffs do not directly dispute that the defendants have not yet formulated or approved a
redevelopment plan. See doc. 33. Rather, the plaintiffs argue that the “[d]efendants have made
clear their intent to redevelop Southtown [] into a mixed-use, mixed-income community,” and
that the selection of Southside as a developer partner is a “substantial component of the
redevelopment.” Id. at 5-7. These contentions are unavailing. First, in the absence of a
redevelopment plan, the defendants’ intent to redevelop Southtown into a mixed-income
community is not sufficient to show that the redevelopment will harm the plaintiffs or that their
claims are fit for judicial review. Next, although HABD’s selection of a developer partner may
be a necessary step towards the preparation and approval of a redevelopment plan, it is not
sufficient to show that the plaintiffs’ claims relating to the redevelopment are fit for judicial
review. See Ohio Forestry Ass’n, Inc. v. Sierra Club, 523 U.S. 726, 729-32 (1998). Moreover,
the plaintiffs have not alleged that the selection of Southside caused them any direct harm.

11

units will be after the redevelopment, and (5) if the redevelopment will deny
affordable housing to the plaintiffs, increase segregation in Birmingham, 5 decrease
the availability of affordable housing in Birmingham, or will affirmatively further
fair housing. See doc. 26-1 at ¶ 11. In other words, it is uncertain if the plaintiffs
will sustain an injury as a result of the redevelopment, or if the redevelopment will
violate federal and state law regarding fair housing and discrimination.
Under these circumstances, deciding the issues presented by the plaintiffs’
claims that the proposed redevelopment violates federal and state law would
require speculation about contingent future events. As a result, claims one through
eight in the Amended Complaint are not fit for judicial review at this time. See
Texas, 523 U.S. at 300-02; Pittman v. Cole, 267 F.3d 1269, 1279 (11th Cir. 2001)
(noting that “claims are less likely to be considered ‘fit’ for adjudication when they
. . . require ‘speculation about contingent future events’”) (quotation omitted).6

5

Indeed, the plaintiffs allege that the defendants have not yet conducted an impact analysis to
show how the redevelopment will affect segregation in Birmingham, doc. 22 at ¶¶ 34(a), 44, but
the plaintiffs did not cite any authority suggesting that the defendants should have conducted
such an analysis at this point in the redevelopment process.
6

To avoid the conclusion that their claims are not fit for judicial review, the plaintiffs point to
the prior redevelopment of two HABD public housing projects to show that they are in
immediate danger of sustaining injury. See doc. 33 at 8-9, 12. The redevelopment of
Metropolitan Gardens and Tuxedo Terrace in Birmingham displaced many residents of those
communities. See doc. 1-2 at 7; Doc. 22-1 at 10-11. Even so, the facts regarding the prior
redevelopments are insufficient to show that the potential Southtown redevelopment will
displace the plaintiffs, increase segregation in Birmingham, decrease the availability of
affordable housing in Birmingham, or violate federal or state law. Likewise, the plaintiffs’
contention that mixed-income housing leads to displacement and increased segregation is
insufficient to show that the redevelopment will harm the plaintiffs or violate federal or state law.

12

2.

Declining judicial review will not impose any hardship on the
plaintiffs as they have administrative avenues through HUD to
participate in the process and voice their concerns.

Turning to the second part of the court’s ripeness inquiry, the hardship to the
parties also weighs in favor of withholding judicial review at this time. Under the
applicable federal regulations, HABD must obtain HUD approval before taking
“any action to demolish or dispose of” buildings at Southtown. See 24 C.F.R.
§ 970.25(a). The regulations specifically require HABD to develop its application
for HUD approval to demolish or dispose of buildings at Southtown “in
consultation with residents who will be affected by the proposed action” and to
submit copies to HUD of any written comments it receives regarding a proposed
demolition or disposition of Southtown. See id. at § 970.9(a)(emphasis added).
Moreover, HUD will not approve HABD’s application if it determines that “[t]he
application was not developed in consultation with [] [r]esidents who will be
affected by the proposed demolition or disposition . . . .” Id. at § 970.29(b).
According to HABD’s Vice President for Housing Operations, HABD has
not yet applied for HUD approval to demolish or dispose of any buildings at
Southtown. Doc. 26-1 at ¶ 11.

Thus, under the regulations, the plaintiffs will

have an opportunity to participate in the development of HABD’s application to
demolish or dispose of buildings at Southtown. The plaintiffs may also challenge a
proposed redevelopment plan by submitting comments to HABD, which HABD

13

must then submit to HUD. In other words, avenues exist for the plaintiffs to
participate in the process and to voice their concerns.
The plaintiffs resist this conclusion by arguing that HUD’s review process
will not sufficiently protect their interests. Doc. 33 at 7-8. To support that
argument, the plaintiffs assert basically that HABD can bypass the HUD approval
process for demolishing or disposing of buildings at Southtown because HABD
would only face a nominal penalty if it chooses to do so—i.e., the defendants
cannot use HUD funds for the costs of the demolition of Southtown. Id. at 8
(citing 24 C.F.R. §§ 970.25 and 970.7). The plaintiffs’ assertion is unavailing
because it is contrary to the terms of the regulations, which explicitly provide that
“[u]ntil [HABD] receives HUD approval, [HABD] shall continue to meet its ACC7
obligations to maintain and operate the property as housing for low-income
families.” 24 C.F.R. § 970.25(a).

The plaintiffs also contend that HUD’s review

“does not guarantee [that the] [p]laintiffs will be able to return to Southtown [] or
be placed in other adequate safe, and affordable housing.” Doc. 33 at 8. But, as
discussed above, this contention is speculative at this juncture. Additionally, the

7

The ACC is the Annual Contributions Contract between HABD and HUD that governs federal
assistance to the public housing authority. See 24 C.F.R. § 135.5. The ACC provides in part that
HABD “shall develop and operate all projects covered by this ACC in compliance with all the
provisions of this ACC and all applicable statutes, executive orders, and regulations issued by
HUD,” and that HABD “shall also ensure compliance with such requirements by any contractor
or subcontractor engaged in the development or operation of a project covered under this ACC.”
Doc. 39-1 at 7, § 5.

14

regulations mandate that HABD must offer any resident displaced by demolition or
disposition of Southtown “comparable housing that meets housing quality
standards [] and is located in an area that is generally not less desirable than the
location of the displaced persons.” 24 C.F.R. § 970.21.
Put simply, the regulations belie the plaintiffs’ contentions that the HUD
approval process will not protect their interests adequately. To the contrary, in
light of the applicable regulations discussed above, the HUD review process
should be sufficient to protect the plaintiffs’ interests.
Likewise, the plaintiffs’ allegations also fall short of convincing the court
that it should interfere at this juncture with HABD and HUD’s decision-making
process regarding the redevelopment. The court declines to do so because the
ripeness doctrine cautions against judicial interference with the agency’s decisionmaking and review process, see Nat’l Advertising, 402 F.3d at 1339, especially
where, as here, the plaintiffs’ claims are based upon future events that may not
occur as expected. The court’s decision will not impose any hardship on the
plaintiffs, who will have the opportunity to make their voices heard in the
administrative process by consulting with HABD and submitting comments
regarding a proposed demolition or disposition of Southtown. The plaintiffs will
also have opportunity to file a legal challenge to any proposed redevelopment plan
after the plan is formulated and the effects of the plan can be determined in a
15

concrete way. Finally, judicial review is inappropriate at this juncture because it
could interfere with HABD and HUD’s decision-making process and deny HUD
the ability to apply its expertise to the potential redevelopment plan for Southtown.
As a result, the potential hardship to the parties weighs in favor of withholding
judicial review.
Based on the foregoing, the plaintiffs’ claims relating to the redevelopment
of Southtown are not yet ripe for judicial review, 8 and the first eight claims of the
Amended Complaint are due to be dismissed without prejudice under Rule
12(b)(1) for lack of jurisdiction.

Accordingly, the plaintiffs’ request for a

preliminary injunction and temporary restraining order is due to be denied as moot.
B.

Whether the Plaintiffs Have Sufficiently Pleaded their Retaliation
Claims

The plaintiffs also assert retaliation claims under the FHA (count nine) and
AFHL (count ten) against the defendants based on allegations that (1) on July 26,
2017, and after Ms. Johnson “became vocal about the redevelopment of
Southtown, she received a lease termination notice on her door from [] HABD for
non-payment of rent;” (2) HABD changed the locks on the community meeting
room door at Southtown in August 2017; (3) “Ms. Johnson was removed as

8

Because the court finds that the claims related to the redevelopment are not ripe for judicial
review, it need not address the plaintiffs’ arguments that they have standing to bring the claims,
see doc. 33 at 13-15, or the defendants’ arguments that the claims related to the redevelopment
should be dismissed pursuant to Rule 12(b)(6), see doc. 26 at 11-13; doc. 29 at 2-4.

16

Resident Council president” for Southtown in July 2017 despite her election to the
role for a three-year term two months earlier; and (4) on July 28, 2017, HABD
informed Southtown residents that they cannot conduct neighborhood or
community meetings on Southtown property without prior approval. Doc. 22 at
¶¶ 47-51, 78-83. The defendants argue that the court should dismiss the retaliation
claims pursuant to Rule 12(b)(6) for failure to state a claim upon which relief may
be granted. For the reasons discussed below, the court agrees.
The FHA and AFHA prohibit retaliation against any person for exercising
rights granted or protected by the acts, or for encouraging others to exercise their
rights under the acts. See 42 U.S.C. § 3617; Ala. Code 1975 § 24-8-8. “To state a
claim for retaliatory housing discrimination, a plaintiff must assert that a defendant
coerced, intimidated, threatened, or interfered with his exercise of rights granted
under the FHA or [AFHA].” Philippeaux v. Apartment Inv. and Mgmt. Co., 598
Fed. Appx. 640, 644 (11th Cir. 2015) (citing 42 U.S.C. § 3617 and Dixon v.
Hallmark Co., 627 F.3d 849, 858 (11th Cir. 2010)). Additionally, “‘[t]o establish a
prima facie case of retaliation, a plaintiff must show that (1) he engaged in a
protected activity; (2) the defendant subjected him to an adverse action; and (3) a
causal link exists between the protected activity and the adverse action.’”
Philippeaux, 598 Fed. Appx. at 644 (quoting Walker v. City of Lakewood, 272 F.3d
1114, 1128 (9th Cir. 2001)).
17

There are several flaws with the plaintiffs’ retaliation claims as currently
pleaded. First, the Amended Complaint is devoid of any factual allegations to
suggest that either Southside or the City participated in or was responsible for the
alleged retaliatory activity. See doc. 22. Instead, the plaintiffs allege facts that
point solely to HABD. See id. at ¶¶ 47, 49, 51. In the absence of any allegations
that Southside and the City participated in, or are otherwise responsible for, the
alleged retaliatory acts, the plaintiffs have failed to state a viable claim against
those defendants, and the retaliation claims against them are due to be dismissed.
Second, it is unclear when the alleged protected activity occurred or even if
it is protected activity. The Amended Complaint lists the protected activity as Ms.
Johnson “bec[oming] vocal about the redevelopment of Southtown.” Doc. 22 at
¶ 47.9

Even assuming Ms. Johnson’s action to speak out against the

redevelopment is protected activity under the FHA or AFHL, there are no
allegations to indicate when Ms. Johnson spoke out against the redevelopment or if
the retaliatory acts occurred within three months of Ms. Johnson’s protected
activity. See doc. 22. Close temporal proximity between Ms. Johnson’s alleged
protected activity and the alleged retaliatory activity may establish a causal link
between the two events, but the proximity must be very close. Fisher v. SP One,
Ltd., 559 Fed. Appx. 873, 877-78 (11th Cir. 2014) (citations omitted). Here, the
9

There is no allegation in the Amended Complaint that the other plaintiffs engaged in protected
activity. See doc. 22. Accordingly, these other plaintiffs cannot pursue a retaliation claim.

18

only connection alleged between Ms. Johnson’s protected activity and the
retaliation is that the retaliatory acts occurred in the summer of 2017 after Ms.
Johnson’s alleged activity.

However, the complaint is silent as to when Ms.

Johnson purportedly voiced her concerns. Without more, the plaintiffs’ allegations
are not sufficient to show a causal connection between any protected activity and
the alleged retaliatory acts. See Fisher, 559 Fed. Appx. At 878 (finding that a
three-month disparity between a plaintiff’s complaint to HUD and an alleged
retaliatory act was not close enough to show causation).
Finally, the retaliation claims fail also because the plaintiffs did not allege
conduct on the part of HABD that rises to the level of threats, coercion,
intimidation, or interference necessary to rise to an adverse act under the FHA and
AFHL. See Wood v. Briarwinds Condominium Ass’n Bd. of Directors, 369 Fed.
Appx. 1, 2 (11th Cir. 2010) (allegations that the defendant towed the plaintiff’s van
and fined the plaintiff did not rise to the level of intimidation or threats necessary
to support a retaliation claim under the FHA). A look at the alleged retaliatory acts
reveals that the plaintiffs have failed to plead that they suffered any adverse action.
For example, although Ms. Johnson received a lease termination notice, HABD
retracted the notice after Ms. Johnson complained and provided proof of payment
of rent. Doc. 22 at ¶ 47. Also, while the plaintiffs allege that HABD changed the
locks on the community meeting room door and informed Southtown residents that
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all neighborhood or community meetings require prior approval from HABD, the
plaintiffs did not allege facts to suggest that HABD has withheld approval of any
proposed meeting the plaintiffs wanted to hold at Southtown or failed to open the
community meeting room for meetings. See id. at ¶¶ 49 & 51. Finally, holding the
position of Resident Council president is not a right protected by the FHA or
AFHL, 10 and the plaintiffs did not cite any authority suggesting that removing Ms.
Johnson from the position would qualify as an adverse action for purposes of a
retaliation claim under the FHA or AFHL. Put simply, the plaintiffs have not
alleged any actions that rise to an adverse action under the law.
IV.

CONCLUSION AND ORDER
Based on the foregoing, the plaintiffs’ first eight claims related to the

redevelopment are not yet ripe for review.

As to their last two claims for

retaliation, the plaintiffs have not stated a viable claim because their allegations are
not sufficient to show a causal connection between any protected activity and the
retaliatory acts or to show conduct that rises to the level of an adverse act.
Accordingly, the court GRANTS the defendants’ motions to dismiss, docs. 25; 28;
29, and DENIES the plaintiffs’ motion for injunctive relief, doc. 2, as MOOT.
HABD’s motion for leave, doc. 27, is GRANTED, and the plaintiffs’ motion to
10

The FHA and AFHL protect any person from discrimination in the sale or rental of a dwelling
and “in the terms, conditions or privileges of sale or rental of a dwelling, or in the provision of
services or facilities in connection with such dwelling, because of race, color, religion, sex,
familial status, or national origin” or because of a handicap. 42 U.S.C. § 3604; Ala. Code 1975
§ 24-8-4.

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strike, doc. 34, is DENIED. The plaintiffs’ claims are DISMISSED WITHOUT
PREJUDICE.
DONE the 30th day of January, 2018.

_________________________________
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE

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