Nixon et al v. Arizona Association Manufactured Home Owners Incorporated

Filing 37

ORDER granting 30 Defendant's Motion for Judgment on the Pleadings; denying as moot 34 Defendant's Motion for Ruling; denying as moot 36 Defendant's Motion for Extension of Time to Complete Discovery. The Clerk of the Court is directed to terminate this action. Signed by Judge David G Campbell on 5/16/12.(DMT)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Patrick E. Nixon and Jean-Marie Nixon,
Plaintiffs,

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No. CV-11-01514-PHX-DGC
ORDER

v.
Arizona Association of Manufactured
Home Owners, Inc.,
Defendant.

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Pro se Plaintiffs Patrick E. Nixon and Jean-Marie Nixon filed a complaint against

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Defendant Arizona Association of Manufactured Home Owners, Inc., alleging violations

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of the Americans with Disabilities Act (“ADA”) and the Civil Rights Act of 1991 and

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requesting declaratory and injunctive relief and civil penalties. Doc. 1. Defendant filed a

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motion for judgment on the pleadings (Doc. 14) and Plaintiffs filed a response (Doc. 16).

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The Court granted the motion on February 9, 2012. Doc. 23. The Court found that

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Plaintiffs had failed to allege sufficient facts to state a claim or to provide any factual

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detail about what happened that would entitle them to relief. Id. at 2. Because Plaintiffs

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are pro se, the Court granted leave to amend and instructed Plaintiffs on how to comply

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with the pleading requirements of Rule 8 of the Federal Rules of Civil Procedure. Id. at

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3. The Court also stated that Plaintiffs’ amended complaint must show that they had

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complied with required administrative procedures. Id.

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Plaintiffs filed an amended complaint on February 24, 2012, alleging claims under

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42 U.S.C. §§ 1981, 1983, and 1985(3) as amended by the Civil Rights Act of 1991

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(Doc. 27), and Defendant filed a second motion for judgment on the pleadings on

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March 8, 2012. Doc. 30. Although Plaintiffs had responded to the first motion for

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judgment on the pleadings and therefore clearly knew that a response was required and

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how to file one, Plaintiffs did not file a response to the second motion. As a result,

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Defendant filed a motion for summary disposition of the second motion.

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Defendant also sought an extension of the discovery schedule. Doc. 36. For the reasons

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that follow, the Court will grant Defendant’s motion for judgment on the pleadings and

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deny Defendant’s remaining motions as moot.

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I.

Doc. 34.

Legal Standard.

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A motion for judgment on the pleadings pursuant to Federal Rule of Civil

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Procedure 12(c) “is properly granted when, taking all the allegations in the non-moving

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party’s pleadings as true, the moving party is entitled to judgment as a matter of law.”

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Fajardo v. County of L.A., 179 F.3d 698, 699 (9th Cir. 1998); see Elvig v. Calvin

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Presbyterian Church, 375 F.3d 951, 955 (9th Cir. 2004) (stating that in ruling on a

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Rule 12(c) motion the court must accept as true all allegations in the plaintiff’s complaint

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and treat as false the allegations in the defendant’s answer that contradict the plaintiff’s

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allegations). In other words, dismissal pursuant to Rule 12(c) is inappropriate if the facts

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as pled would entitle the plaintiff to a remedy. Merchants Home Delivery Serv., Inc. v.

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Hall & Co., 50 F.3d 1486, 1488 (9th Cir.1995).

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II.

Discussion.

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After having an opportunity to amend their complaint, Plaintiffs have once again

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failed to allege facts showing that either of them is entitled to a remedy. See Ashcroft v.

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Iqbal, 556 U.S. 662, 679 (2009). (“where the well-pleaded facts do not permit the court to

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infer more than the mere possibility of misconduct, the complaint has alleged – but it has

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not ‘show[n]’ – ‘that the pleader is entitled to relief.’”) (citing Fed. R. Civ. P. 8(a)(2)).

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The amended complaint contains three specific allegations with respect to Patrick

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E. Nixon: that Defendant denied Mr. Nixon’s claims for expenses incurred on its behalf

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while he served on the association’s board of directors, that Defendant created a hostile
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environment for him as a disabled veteran, and that Defendant retaliated against him for

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speaking out about its violations of bylaws and state and federal laws. Doc. 27, ¶¶ 1-3; 4-

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5; 8. The amended complaint fails to allege sufficient facts to support any of these

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assertions. It does not identify any expenses Mr. Nixon incurred on behalf of Defendant

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or the circumstances surrounding Defendant’s alleged denials for reimbursement from

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which the Court could reasonably infer that the denials were unlawful or motivated by

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discriminatory intent.

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The complaint provides a single factual allegation in support of Mr. Nixon’s

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hostile environment claim – that, at a December 9, 2010 board meeting, the Treasurer

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screamed at Mr. Nixon in front of the board that “you are insane and your [sic] crazy”

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and continued to scream at him outside the building. Id., ¶¶ 4-5. The complaint fails to

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allege any circumstances surrounding this alleged act from which the Court reasonably

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could infer that Defendant intentionally created a hostile environment for Mr. Nixon on

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the basis of his disability. Nor does the complaint allege that Mr. Nixon was employed

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by Defendant.

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The amended complaint does not allege any retaliatory actions that Mr. Nixon
suffered for speaking out.

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As the Court previously stated, “[t]he amended complaint must provide the factual

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basis for each claim and give Defendant ‘fair notice of what [Plaintiff’s] claim is and the

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grounds upon which it is based.’” Holgate v. Baldwin, 425 F.3d 671, 676 (9th Cir. 2005).

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The complaint clearly fails to do so.

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The amended complaint makes two allegations with respect to Jean-Marie Nixon:

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that as “a highly qualified Hispanic female, with a disability and a known association

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with a disabled person,” Ms. Nixon received disparate treatment in the selection process

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for Education Director; and that she also suffered retaliatory conduct. Doc. 27, ¶¶ 6-7; 8.

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The amended complaint’s sole factual allegation with respect to Ms. Nixon’s disparate

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treatment is that she was subjected to an “unprecedented interview process on June 2,

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2011.” The complaint alleges no facts about the interview process or what made it
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“unprecedented,” and provides no additional facts from which the Court reasonably could

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infer disparate treatment or retaliation.

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Defendant explains in its motion why the complaint fails to state a claim under 42

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U.S.C. § 1981, which requires a showing of intentional racial discrimination; § 1983,

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which requires that Defendant be a state actor or take actions “under color of state law”;

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and § 1985(3), which requires a showing of a conspiracy. Doc. 30 at 4, 5, 11-12. To the

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extent that Plaintiffs attempt to make claims under the ADA or the Civil Rights Act,

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Defendant explains how these claims also fail. Id. at 6-11. In particular, Plaintiffs fail to

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allege any facts to support a disability under the ADA or to show that Defendant is an

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employer under Title I of the ADA, a State or local government entity under Title II, or

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that Plaintiffs were denied access to a place of public accommodation under Title III. See

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id. at 6-9. Plaintiffs similarly fail to set forth the prima facie elements for a claim under

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Title II or Title VII of the Civil Rights Act. See id. at 10-11. In addition to the factual

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deficiencies of the complaint, Defendant notes that Plaintiffs have failed to show they

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pursued required administrative remedies under these Acts. Id. at 6-7, 10-11.

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Defendant’s second motion for judgment on the pleadings is well taken. Because

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the Court agrees that Plaintiffs have failed to state a claim under any of the legal theories

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presented, and Plaintiffs have not responded or requested further leave to amend, the

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Court will grant judgment on the pleadings in favor of Defendant.

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IT IS ORDERED:

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(Doc. 30) is granted.

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Defendant Defendant’s second motion for judgment on the pleadings

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Defendant’s motion for summary disposition (Doc. 34) and its motion for
extension of discovery (Doc. 36.) are denied as moot.

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3.

The Clerk of the Court is directed to terminate this action.

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Dated this 16th day of May, 2012.

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