Polite v. Winn Residential
Filing
31
ORDER granting 25 Motion to Dismiss without prejudice to Ms. Polite filing an amended complaint repleading her claims within thirty (30) days of the date of this Order. Signed by Judge Victor A. Bolden on 1/15/2016. (Dearing, S.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
DANIELLE POLITE,
Plaintiff,
v.
NO. 3:14-cv-01921 (VAB)
WINN RESIDENTIAL,
Defendant.
RULING ON DEFENDANT’S MOTION TO DISMISS
Plaintiff, Danielle Polite, has filed a complaint pro se against her former landlord,
Winn-Residential CT LLC (“Winn”). Compl., ECF No. 1. She claims that she was
evicted from federally subsidized housing because she failed to pay her rent on time. Id.
at 3, 5. She alleges that this eviction was improper under various provisions of law,
namely under Bivens v. Six Unknown Names Agents of Federal Bureau of Narcotics, 403
U.S. 388 (1971), the Federal Fair Housing Act, 42 U.S.C. §3601 et seq., the Connecticut
Fair Housing Act, Conn. Gen. Stat. §46a-64c(a), Connecticut General Statutes section
46a-58, the Americans with Disabilities Act (“ADA”), 42 U.S.C. §12101 et seq., and
Section 504 of the Rehabilitation Act, 29 U.S.C. §794. Compl. at 2, ECF No. 1. She
asks that Winn be ordered to stop discriminating against black people and people with
disabilities. Id. at 22. She also seeks readmission to her apartment and $8 million in
damages. Id.
Winn has filed a motion to dismiss all claims in this case. Mot. to Dismiss, ECF
No. 25. For the reasons that follow, that motion is GRANTED in its entirety without
prejudice.
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I.
Factual Allegations
Ms. Polite alleges that she is a person with mental illnesses, including Major
Depressive Disorder and Post-Traumatic Stress Disorder, and that she rented an
apartment from Winn while being treated for these illnesses. Compl. at 3, 7, 11, ECF No.
1. She claims that she failed to pay at least some portion her January 2014 rent within the
time required under her lease but that she paid both January and February 2014 rent by
February 10, 2014. Id. at 5. As a result of her late rent payment, Winn allegedly initiated
eviction proceedings against her in state court and secured a judgment against her on
April 2, 2014, with a stay of execution until June 30, 2014. Id.; Ex. to Compl. at 9, ECF
No. 8.
Ms. Polite claims that on April 1, 2014, a paralegal sent a letter to Winn asking
that it “withdraw the eviction action” as a reasonable accommodation for her mental
illnesses. Compl. at 7, ECF No. 1; see also Ex. to Compl. at 7, ECF No. 8. Winn
allegedly denied that request on June 12, 2014 in a letter, which explained that allowing
such an accommodation would modify the HUD model lease and, therefore, be
inappropriate. Compl. at 11, 13, ECF No. 1; see also Ex. to Compl. at 21, ECF No. 8.
She alleges that Winn moved forward with the eviction in early July 2014. Compl. at 15,
ECF No. 1.
After Winn denied this initial request for an accommodation, a lawyer followed
up on Ms. Polite’s behalf to propose alternative accommodations. See Ex. to Compl. at
13, 38-39, ECF No. 8. These alternatives were either that Ms. Polite could place the
landlord on an automatic payment schedule negotiated directly with her bank or that she
could have a representative payee or voluntary conservator to ensure that rent was always
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paid in full and on time. Id. Ms. Polite claims that Winn accepted the second proposed
accommodation and offered her a settlement agreement that would have allowed her to
regain occupancy of the apartment, so long as she paid all of the money that she owed.
Compl. at 16, 18, ECF No. 1; see also Ex. to Compl. at 50-52, ECF No. 8. She appears
to not have signed the agreement.
Finally, Ms. Polite also claims that she was having a sexual relationship with a
white mechanic employed by her landlord. Compl. at 2, 18, ECF No. 1. She alleges that
a Winn employee knew about the relationship and asked the mechanic to stay away from
her. Id. at 18.
II.
Standard
To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a
plaintiff must state a claim for relief that is plausible on its face. Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (citation omitted). A claim is facially plausible if “the plaintiff
pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Id. In other words, to state a plausible
claim, a plaintiff’s complaint must have “enough fact to raise a reasonable expectation
that discovery will reveal evidence” supporting the claim. Bell Atl. Corp. v. Twombly,
550 U.S. 544, 556 (2007). Although “detailed factual allegations” are not required, a
complaint must offer more than “labels and conclusions,” “a formulaic recitation of the
elements of a cause of action,” or “naked assertion[s]” devoid of “further factual
enhancement.” Id. at 555, 557.
In determining whether the plaintiff has met this standard, the Court must accept
the allegations in the complaint as true and draw all reasonable inferences in the
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plaintiff’s favor. In re NYSE Specialists Sec. Litig., 503 F.3d 89, 95 (2d Cir. 2007);
Newman & Schwartz v. Asplundh Tree Expert Co., Inc., 102 F.3d 660, 662 (2d Cir.
1996) (citations omitted).
In considering a motion to dismiss, “a district court must [also] limit itself to facts
stated in the complaint or in documents attached to the complaint as exhibits or
incorporated in the complaint by reference.” Newman & Schwartz, 102 F.3d at 662
(citation and internal quotation marks omitted). Ms. Polite has attached a number of
exhibits to her Complaint, which the Court has considered in evaluating Winn’s Motion
to Dismiss. Exs. to Compl., ECF Nos. 8, 17.
III.
Discussion
The Court will discuss the validity of each of Ms. Polite’s claims in turn. Because
Winn does not challenge the applicability of any of the statutes Ms. Polite cites in her
Complaint, the Court assumes that they all apply to Winn.
A. Bivens Claim
First, to the extent that Ms. Polite asserts claims under Bivens v. Six Unknown
Names Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), those claims must
be dismissed. Bivens authorizes a private cause of action against federal officers alleged
to have violated a citizen’s constitutional rights. Corr. Servs. Corp. v. Malesko, 534 U.S.
61, 66 (2001). A Bivens cause of action cannot lie against a private party like Winn, even
if that organization acts under color of federal law. See id. at 71-74 (holding that Bivens
liability was not appropriate for a private corporation operating a halfway house under a
Bureau of Prisons contract).
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B. Race Discrimination
Ms. Polite claims that her eviction violated the Federal Fair Housing Act because
Winn discriminated against her on the basis of her race. The Fair Housing Act prohibits
discrimination on the basis of a person’s race or color in the sale or rental of, or provision
of services or facilities to a dwelling. See 42 U.S.C. §§3604(a)-(b).
For her Complaint to survive a motion to dismiss under the Federal Fair Housing
Act, Ms. Polite must allege facts in support of the following elements: (1) that she is a
member of a protected class; (2) that she sought and was qualified to rent or purchase the
housing; (3) that she was rejected; and (4) that the housing opportunity remained
available to other renters or purchasers. Dixon v. Muchnick, No. 11-CV-30S, 2011 WL
6330156, at *4 (W.D.N.Y. Dec. 19, 2011) (citing Mitchell v. Shane, 350 F.3d 39, 47 (2d
Cir. 2003)).
Ms. Polite’s allegations are quite sparse, only indicating that she was having a
sexual relationship with a white man and that she believes Winn to be discriminating
against African Americans. She does not allege that she is an African American. Her
allegations also indicate that she had an opportunity to regain access to her apartment,
namely a settlement agreement with Winn, which she refused to sign. This allegation
does not plausibly support an inference that she was denied the opportunity to rent from
Winn. Accordingly, her claim of racial discrimination under the Federal Fair Housing
Act must fail, because she has not alleged facts supporting the required elements.
C. Disability Discrimination
The core of Ms. Polite’s Complaint is her contention that her eviction violated the
Federal Fair Housing Act, the ADA, and the Rehabilitation Act, because Winn
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discriminated against her based on a disability by failing to accommodate that disability.
She claims that the various mental illnesses she suffers constitute a disability.
All three of these statutes prohibit discrimination against persons with disabilities
in the implementation or enforcement of housing policies. See Tsombanidis v. West
Haven Fire Dep’t, 352 F.3d 565, 573 (2d Cir. 2003) (with respect to the ADA and the
Federal Fair Housing Act); see also Shapiro v. Cadman Towers, Inc., 51 F.3d 328, 335
(2d Cir. 1995) (with respect to the Federal Fair Housing Act and the Rehabilitation Act).
The analysis of reasonable accommodation claims brought under these three statutes is
the same. Logan v. Matveevskii, 57 F. Supp. 3d 234, 253 (S.D.N.Y. 2014) (noting that
the Federal Fair Housing Act, the ADA, and the Rehabilitation Act “offer the same
guarantee that a covered entity [ ] must provide reasonable accommodations in order to
make the entity’s benefits and programs accessible to people with disabilities” and that
“analysis of a reasonable accommodation claim under the three statutes is treated the
same.”) (citations and internal quotation marks omitted).
The ADA, Rehabilitation Act, and Federal Fair Housing Act require landlords to
incur reasonable costs to accommodate a handicap or disability, “provided such
accommodations do not pose an undue hardship or a substantial burden” or afford
“additional substantive benefits.” Shapiro, 51 F.3d at 335 (under the Federal Fair
Housing Act); Wright v. Giuliani, 230 F.3d 543, 547-48 (2d Cir. 2000) (under the ADA
and the Rehabilitation Act); Tsombanidis, 352 F.3d at 578 (under the ADA and Federal
Fair Housing Act).
To state a claim for a failure to reasonably accommodate a disability, a plaintiff
must allege (1) that he is disabled under the ADA and Rehabilitation Act or that he
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suffers a handicap as defined by the Fair Housing Act; (2) that the defendant knew or
reasonably should have known of the plaintiff’s disability; (3) that accommodation of the
disability may be necessary to afford the plaintiff an equal opportunity to use and enjoy
the dwelling; and (4) that the defendants refused to make such an accommodation. See
Logan, 57 F. Supp. 3d at 256 (citations omitted); accord Taylor v. Hous. Auth. of New
Haven, 267 F.R.D. 36, 51 (D. Conn. 2010) (citation omitted).
Winn argues that Ms. Polite’s claim fails (1) because the initial accommodation
Ms. Polite requested was unreasonable and (2) because it provided her a reasonable
alternative accommodation that she refused to accept. Def.’s Br. 6-9, ECF No. 26. The
Court agrees.
Ms. Polite’s first request for an accommodation was that she be permitted to pay
her rent late because of her disability. This accommodation is not reasonable, because it
would have required Winn to make fundamental or substantial modifications to the lease
in order to accommodate her. The law does not require such accommodations to be
made. See Wright, 230 F.3d at 548 (holding in a challenge to housing conditions under
the ADA and the Rehabilitation Act that these two statutes “do not require that
substantively different services be provided to the disabled, no matter how great their
need for the services may be”); Salute v. Stratford Greens Garden Apartments, 136 F.3d
293, 301-02 (2d Cir. 1998) (finding that the housing accommodation sought by plaintiffs,
which “remedies their economic status, on the ground that this economic status results
from their being handicapped,” was not legally required under the Fair Housing Act
because it was not “necessary to afford handicapped persons equal opportunity to use and
enjoy a dwelling”) (citation, emphasis, and internal quotation marks omitted).
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Ms. Polite’s second request for an accommodation, either having her bank
directly pay the landlord or having a third-party oversee the payment of her rent, was
more reasonable. Ms. Polite alleges that Winn accepted this second accommodation, but
that she subsequently rejected their offer. She does not allege why she rejected the
accommodation. Nor does she allege that she provided a counter-offer. Thus, she has
failed to raise a plausible inference that Winn denied her an accommodation or refused to
accommodate her disability.
D. State Law Claims
Ms. Polite has also brought state law claims under the Connecticut Fair Housing
Act and Connecticut General Statutes section 46a-58. The Court has dismissed all of Ms.
Polite’s federal claims. It declines to exercise supplemental jurisdiction over her state
law claims. See 28 U.S.C. 1367(c)(3) (“The district courts may decline to exercise
supplemental jurisdiction over a claim… if… the district court has dismissed all claims
over which it has original jurisdiction.”); see also Kelly v. Signet Star Re, LLC, 971 F.
Supp. 2d 237, 254 (D. Conn. 2013) (“[T]his Court is reluctant to exercise supplemental
jurisdiction in non-diversity cases, given that under 28 U.S.C. §1367(c) and (c)(3),
United States district courts may decline to exercise supplemental jurisdiction over a
claim if they have dismissed all claims over which [they] ha[d] original jurisdiction…
The Second Circuit [ ] explained that… if a plaintiff’s federal claims are dismissed before
trial, the state law claims should be dismissed as well.”) (citations and internal quotation
marks omitted). Accordingly, all of Ms. Polite’s state law claims are dismissed.
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IV.
Conclusion
For all of the foregoing reasons, Winn’s Motion to Dismiss, ECF No. 25, is
GRANTED in its entirety without prejudice to Ms. Polite filing an amended complaint.
“Generally, ‘[a] pro se complaint should not be dismissed without the Court granting
leave to amend at least once when a liberal reading of the complaint gives any indication
that a valid claim might be stated.’” Obot v. Sallie Mae, 602 F. App’x 844, 846 (2d Cir.
2015) (quoting Nielsen v. Rabin, 746 F.3d 58, 62 (2d Cir. 2014)). Out of an abundance
of caution, the Court will provide Ms. Polite thirty (30) days to file an amended
complaint. Failure to do so within thirty days will result in dismissal of this lawsuit.
SO ORDERED at Bridgeport, Connecticut this 15th day of January 2016.
/s/ Victor A. Bolden
VICTOR A. BOLDEN
UNITED STATES DISTRICT JUDGE
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