Rivera v. Littleton Housing Authority

Filing 45

ORDER. The Motion to Dismiss 17 is DENIED. It is further ORDERED that the stay in this matter is LIFTED. A Scheduling Conference will be held on June 18, 2014, at 9:30 a.m. in Courtroom C-201, Second Floor, of the Byron Rogers U.S. Courthouse, 1929 Stout Street, Denver, Colorado. The parties shall file a proposed amended Scheduling Order no later than June 11, 2014. The Motion to Modify Civil Scheduling Order 44 is GRANTED. New deadlines will be set at the Scheduling Conference, by Magistrate Judge Kathleen M. Tafoya on 6/4/14.(sgrim)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Magistrate Judge Kathleen M. Tafoya
Civil Action No. 13–cv–01949–KMT

FERNANDA RIVERA,
Plaintiff,
v.
LITTLETON HOUSING AUTHORITY,
Defendant.

ORDER

This matter is before the court on Defendant Littleton Housing Authority’s “Motion to
Dismiss.” (Doc. No. 17 [Mot.], filed October 28, 2013.) Plaintiff filed her response on January
23, 2014 (Doc. No. 25 [Resp.]), and Defendant filed its reply on February 4, 2014 (Doc. No. 35
[Reply]). This court granted Plaintiff leave to file a surreply (see Doc. No. 36), and Plaintiff
filed same on February 18, 2014. (Doc. No. 42 [Surreply].) This motion is ripe for ruling.
STATEMENT OF THE CASE
Plaintiff, proceeding pro se, filed her Complaint on July 22, 2013. (Doc. No. 1.)
Plaintiff, who states she is elderly and disabled, alleges discrimination under Title II of the
Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101, et seq. (See id.) Plaintiff states
Defendant allowed Plaintiff and her husband to live with their daughter with Section 8 housing
assistance. (Id., ¶ 5.) Plaintiff asserts that Defendant discriminated against her when her husband

passed away on October 23, 2008, and Defendant “made housing unavailable to [Plaintiff]”
requiring her to apply for a new Section 8 Housing Choice Voucher instead of transferring
ownership of her husband’s Head of Household Voucher to Plaintiff. (Id.) Plaintiff states she
was approved for a new Section 8 voucher in 2010, but Defendant “again made housing
unavailable by denying [Plaintiff] housing assistance unless she moved to a facility against her
will.” (Id.) Plaintiff alleges the defendant forced “the unjust isolation & segregation of
Plaintiff” and “effected the removal of [Plaintiff’ from the most integrated setting” where
Plaintiff was receiving Home and Community Based Services (“HCBS”). (Id.)
Plaintiff asserts five claims for relief, all related to Defendant’s alleged discrimination,
seeking monetary damages. (Id. at 5, 7–8, 16–17, 21.)
STANDARD OF REVIEW
1.

Pro Se Plaintiff
At the time Plaintiff filed her Complaint, she was proceeding pro se. The court,

therefore, “review[s] [her] pleadings and other papers liberally and hold[s] them to a less
stringent standard than those drafted by attorneys.” Trackwell v. United States, 472 F.3d 1242,
1243 (10th Cir. 2007) (citations omitted). See also Haines v. Kerner, 404 U.S. 519, 520-21
(1972) (holding allegations of a pro se complaint “to less stringent standards than formal
pleadings drafted by lawyers”). However, a pro se litigant’s “conclusory allegations without
supporting factual averments are insufficient to state a claim upon which relief can be based.”
Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). A court may not assume that a plaintiff
can prove facts that have not been alleged, or that a defendant has violated laws in ways that a
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plaintiff has not alleged. Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of
Carpenters, 459 U.S. 519, 526 (1983). See also Whitney v. New Mexico, 113 F.3d 1170,
1173–74 (10th Cir. 1997) (court may not “supply additional factual allegations to round out a
plaintiff’s complaint”); Drake v. City of Fort Collins, 927 F.2d 1156, 1159 (10th Cir. 1991) (the
court may not “construct arguments or theories for the plaintiff in the absence of any discussion
of those issues”). The plaintiff’s pro se status does not entitle her to application of different
rules. See Montoya v. Chao, 296 F.3d 952, 957 (10th Cir. 2002).
2.

Failure to State a Claim Upon Which Relief Can Be Granted
Federal Rule of Civil Procedure 12(b)(6) provides that a defendant may move to dismiss

a claim for “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6)
(2007). “The court’s function on a Rule 12(b)(6) motion is not to weigh potential evidence that
the parties might present at trial, but to assess whether the plaintiff’s complaint alone is legally
sufficient to state a claim for which relief may be granted.” Dubbs v. Head Start, Inc., 336 F.3d
1194, 1201 (10th Cir. 2003) (citations and quotation marks omitted).
“A court reviewing the sufficiency of a complaint presumes all of plaintiff’s factual
allegations are true and construes them in the light most favorable to the plaintiff.” Hall v.
Bellmon, 935 F.2d 1106, 1198 (10th Cir. 1991). “To survive a motion to dismiss, a complaint
must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible
on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1949 (2009) (citing Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Plausibility, in the context of a motion to dismiss,
means that the plaintiff pleaded facts which allow “the court to draw the reasonable inference
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that the defendant is liable for the misconduct alleged.” Id. The Iqbal evaluation requires two
prongs of analysis. First, the court identifies “the allegations in the complaint that are not
entitled to the assumption of truth,” that is, those allegations which are legal conclusion, bare
assertions, or merely conclusory. Id. at 1949–51. Second, the Court considers the factual
allegations “to determine if they plausibly suggest an entitlement to relief.” Id. at 1951. If the
allegations state a plausible claim for relief, such claim survives the motion to dismiss. Id. at
1950.
Notwithstanding, the court need not accept conclusory allegations without supporting
factual averments. Southern Disposal, Inc., v. Texas Waste, 161 F.3d 1259, 1262 (10th Cir.
1998). “[T]he tenet that a court must accept as true all of the allegations contained in a
complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not suffice.” Iqbal, 129 S. Ct. at 1940.
Moreover, “[a] pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the
elements of a cause of action will not do.’ Nor does the complaint suffice if it tenders ‘naked
assertion[s]’ devoid of ‘further factual enhancement.’ ” Id. at 1949 (citation omitted). “Where a
complaint pleads facts that are ‘merely consistent with’ a defendant’s liability, it ‘stops short of
the line between possibility and plausibility of ‘entitlement to relief.’ ” Iqbal,129 S. Ct. at 1949
(citation omitted).
ANALYSIS
Defendant moves to dismiss Plaintiff’s claims as barred by the applicable statute of
limitations. A two-year statute of limitations applies to ADA claims. Quinn v. Univ. of Okla.,
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276 F. App’x 809, 810–811 (10th Cir. 2008); Hughes v. Colo. Dep’t of Corrs., 594 F. Supp.2d
1226, 1235 (D. Colo. 2009). “In general, . . . claims accrue and the statute of limitations begins
to run when the plaintiff knows or has reason to know of the existence and cause of the injury
which is the basis of his action.” Alexander v. Oklahoma, 382 F.3d 1206, 1215 (10th Cir. 2004).
“A plaintiff has reason to know of his injury when he should have discovered it through the
exercise of reasonable diligence.” Indus. Constructors Corp. v. U.S. Bureau of Reclamation, 15
F.3d 963, 969 (10th Cir. 1994).
Defendant argues that because the alleged discriminatory events that are the basis for this
action occurred in 2008 and 2010, with the last event, the removal from the Section 8 Housing
Choice Voucher wait list occurring on June 14, 2010, Plaintiff had until June 14, 2012 to file an
action in this Court. Therefore, Defendant argues, because Plaintiff did not file this action until
September 26, 2013, her claims are barred by the statute of limitations.1
In her response, Plaintiff argues that the statute of limitations was tolled because she is a
person under a disability. If a person under a disability is without a “legal representative,”
statutes of limitations do not run against her. Price v. Sommermeyer, 41 Colo. App. 147, 584
P.2d 1220 (1978), aff’d 198 Colo. 548, 603 P.2d 135 (1979); Barnhill v. Public Service Co., 649
P.2d 716 (Colo. App.1982), aff’d, 690 P.2d 1248 (Colo. 1984). Colo Revised Statute §
13–81–101(3) defines a “person under disability” as “any person who is a minor under eighteen
years of age, a mental incompetent, or a person under other legal disability and who does not

1

Contrary to Defendant’s assertion, Plaintiff actually filed her Complaint in this matter on
July 22, 2013. (Doc. No. 1.)
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have a legal guardian.” Id. Here, Plaintiff alleges she is disabled, and the defendant does not
dispute that allegation. Moreover, Plaintiff argues that the Arapahoe County Court did not
appoint a legal guardian until July 17, 2012, and therefore she had until July 17, 2014 to file her
complaint. (See Resp. at 2, 9 & Ex. 1.)
In its reply, Defendant asserts that Plaintiff’s daughter was appointed by Plaintiff as her
attorney-in-fact through General Power of Attorney on June 21, 2006. (See Reply at 1, Ex. A.)
However, the court finds that while Plaintiff may have had legal representation in the sense that
she had a self-appointed attorney-in-fact, it still is not enough to trigger the shortened limitations
period of Colorado Revised Statute § 13–81–103(1)(a). This is because Colorado has adopted a
narrow interpretation of the statute, under which the provision is implicated only by a direct,
court appointment of a legal representative. Under Colorado Revised Statute § 13–81–101(2), a
“legal representative” is explicitly defined as “a guardian, conservator, personal representative,
executor, or administrator duly appointed by a court having jurisdiction of any person under
disability or his estate.” Id. (emphasis added). In this case, the Arapahoe County Court did not
appoint a legal guardian until July 17, 2012. (See Resp., Ex. 1.) Therefore, Plaintiff’s legal
guardian was required to bring the claims against Defendant on or before July 17, 2014. Plaintiff
filed her Complaint on July 22, 2013, well before the statute of limitations expired, and thus
Defendant’s argument fails.
WHEREFORE, for the foregoing reasons, it is
ORDERED that the “Motion to Dismiss” (Doc. No. 17) is DENIED. It is further
ORDERED that the stay in this matter is LIFTED. It is further
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ORDERED that a Scheduling Conference will be held on June 18, 2014, at 9:30 a.m.
in Courtroom C-201, Second Floor, of the Byron Rogers U.S. Courthouse, 1929 Stout Street,
Denver, Colorado. The parties shall file a proposed amended Scheduling Order no later than
June 11, 2014. The “Motion to Modify Civil Scheduling Order” (Doc. No. 44, filed April 25,
2014) is GRANTED. New deadlines will be set at the Scheduling Conference.
Dated this 4th day of June, 2014.

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