HUNTER et al v. DISTRICT OF COLUMBIA et al
Filing
99
MEMORANDUM OPINION to the Motions to Dismiss Plaintiffs' First Amended Complaint. Signed by Judge Gladys Kessler on 8/18/14. (CL, )
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ANTHONY HUNTER, on his behalf
and as parent of his minor
daughter, A.H.,
Plaintiffs,
v.
THE DISTRICT OF COLUMBIA,
a municipal corporation,
THE COMMUNITY PARTNERSHIP FOR
THE PREVENION OF HOMELESSNESS,:
Civil Action No. 12-1960 (GK)
COALITION FOR THE HOMELESS,
and
COMMUNITY OF HOPE,
Defendants.
MEMORANDUM OPINION
Plaintiff Anthony Hunter
A.H. 1 (collectively/
Partnership")
for
1
allege
("the District//
the
Prevention
or "D.C.")
of
that
( "COW1
)
(collectively 1
Defendants
violated
1
the Community
Homelessness
the Coalition for the Homeless
and Community of Hope
Hunters
and his minor daughter
"the Hunters") filed this action against the
District of Columbia
Partnership
("Hunter")
("the
("the Coalition")
1
"Defendants//) . The
various
federal
and
local anti-discrimination statutes and were negligent.
1
Pursuant to Local Civil Rule 5.4(f) (2)
Hunter S daughter will
be referred to by her initials in order to protect her privacy.
1
1
This matter is presently before the Court on the District's
Motion to Dismiss Plaintiffs'
65]
and
COR's
Complaint
Motion
[Dkt.
Oppositions
No.
[Dkt.
to
66].
Nos.
First Amended Complaint
Dismiss
Upon
73
Plaintiffs'
consideration
and
74],
Replies
[Dkt. No.
First
of
[Dkt.
the
Amended
Motions,
Nos.
77
80],
the United States of America's Statement of Interest
No.
79],
Interest
the
Responses
[Dkt.
Nos.
to
the
93 and 94],
for the reasons stated below,
in
part
and
denied
in
United
States'
and
[Dkt.
Statement
the entire record herein,
of
and
the District's Motion is granted
and
part,
Defendant
COR's
Motion
is
granted in part and denied in part.
I .
BACKGROUND
A.
Factual Background2
The
District,
( "DHS") ,
through
provides social
its
services
Department
of
Human
Services
for indi victuals and families
in the city who are homeless or at risk of homelessness.
Amended Complaint
( "Compl. ")
~
8.
In doing so,
contracts with various service providers. Id.
2
~
First
it entered into
9.
For purposes of ruling on a motion to dismiss, the factual
allegations of the complaint must be presumed to be true and
liberally construed in favor of the plaintiff. Aktieselskabet AF
21. November 2001 v. Fame Jeans Inc., 525 F.3d 8, 15 (D.C. Cir.
2008); Shear v. Nat'l Rifle Ass'n of Am., 606 F.2d 1251, 1253
(D.C. Cir. 1979). Therefore, the facts set forth herein are
taken from the First Amended Complaint [Dkt. No. 59].
-2-
One such contractor,
the Partnership, has been retained to
manage and direct emergency shelter services.
~~
Id.
9-10.
As
part of its duties, the Partnership runs the District-owned D.C.
General Shelter.
Coalition
to
Id.
~
operate
10.
The Partnership contracted with the
the
Virginia
Williams
Family
Resource
Center ("the Center"), which is the central intake facility for
all
families
seeking
placements
in
shelters.
~ 12.
Id.
The
Partnership has also contracted with COH to manage the day-today operations at the District-owned Girard Street Apartments.
Id.
~~ 8,
11.
At the time of the events relevant to this case,
Hunter lived with his six-year old daughter, A.H.
Plaintiff
~~
Id.
7,
36.
She was born with and continues to suffer from spina bifida and
cri-du-chat
wheelchair
dressing
syndrorne. 3
and
and
cannot
eating."
Id.
~~ 7,
engage
Id.
in
Her
3
35.
As
a
result,
"self -care,
medical
she uses
such as
conditions
a
bathing,
leave
her
Cri-du-chat syndrome is a chromosomal condition "characterized
by intellectual disability and delayed development, small head
size
low birth weight, and weak muscle tone
in
infancy."
Cri-du-chat
syndrome,
Genetics
Horne
Reference,
http://ghr.nlrn.nih.gov/condition/cri-du-chat-syndrorne
(last
visited June 30, 2014). Spina bifida is a "condition in which
the bones of the spinal column do not close completely around
the developing nerves of the spinal cord." Spina bifida,
Genetics Horne Reference, http://ghr.nlrn.nih.gov/condition/spinabifida (last visited June 30, 2014). It can result in "a loss of
feeling below the level of the opening, weakness or paralysis of
the feet or legs, and problems with bladder and bowel control."
Id.
-3-
particularly
susceptible
to
infections,
and
doctors
have
recommended she live in an environment that minimizes exposure
to infections and other communicable diseases. Id.
December
On
7
2011,
I
the
Hunters
immediate
faced
homelessness and applied for placement in a homeless shelter in
the
District.
placement,
~ 37.
Id.
Hunter
impairments
and
environment
told
with
accessible.
the
bathroom
for
and
accessible
~~
Id.
request
the
that
a
unit
when
The
General
ramp
Hunters
Shelter.
into
accessible.
with several
Id.
the
Id.
were
~
43,
~
that
mobility
non-communal
was
wheelchair
with
a
private
request
for
a
wheelchair
the
Hunters'
reasonable
up
39.
placed
41.
in
uBuilding
12"
of
the
Although the room was private,
was
46.
a
environment
the
writing
building
~~
had
A.H.
needed
discussing
The Center staff failed to include
only
accommodation request. Id.
Center
that
bathroom
non-communal
included
the
Hunters
private
3 9.
at
staff
the
3 7,
a
While
too
steep
to
be
D.C.
the
wheelchair
The Hunters had to share a bathroom
other families
and the
staff refused to
let
the
Hunters eat in a separate room. Id.
~~
47-48, 50. While residing
in
a
urinary
this
shelter,
A.H.
developed
tract
infection
resulting in the need for treatment at Children's Hospital.
~
54.
Asserting that
Id.
the placement did not meet A. H.'s needs,
-4-
Hunter
repeatedly
asked
accessible unit. Id.
~~
that
he
and
A.H.
be
relocated
to
an
51, 53.
On or about December 29,
the Hunters were moved to
Girard Street Apartments,
the
2011,
where
they were given a
apartment.
~~
Id.
56,
66.
The Hunters were told that
private
the only
available unit at the Girard Street Apartments was on the third
floor and that
~~ 69,
71.
they would not
receive
There was no elevator,
an accessible unit.
Id.
so Hunter had to carry A.H.
and her wheelchair up and down two flights of stairs to arrive
at
or leave
the
apartment.
Id.
~
74.
Finally,
the hallways
the unit were too narrow to accommodate A.B.'s wheelchair.
in
Id.
~ 75.
There was at
least one accessible first
floor unit at the
Girard Street Apartments that was occupied by a
not need the accessible features.
Id.
~
78.
family that did
Hunter was told by
the program director that she could not require that family to
move and that the Hunters would need to stay in the third floor
unit.
Id.
Hunters'
Id.
had
~
On February 10,
attorney,
86.
to
after the
intervention of
Id.
the
~~
the
the Hunters were moved to a first floor unit.
Because the wheelchair lift was broken,
lift
apartment.
2012,
wheelchair
73,
86.
up
As a
three
steps
to
Hunter still
get
to
this
result of the need to lift and
-5-
carry A.B.'s wheelchair, Hunter experienced back and chest pain.
Id.
~
77.
On March
Street
~
12,
2012,
Apartments
and
the
into
Hunters
a
moved out
supportive
of
housing
the
Girard
program.
Id.
88.
B.
Procedural History
On
[Dkt.
December
No.
1],
6,
2012,
the
Hunters
and on April 29,
2013,
Leave to File an Amended Complaint
filed
their
Complaint
they filed a Motion for
[Dkt.
No.
54]
On May 17,
2013, the Motion was granted via Minute Order.
On June
("Mot.")
3,
2 013,
[Dkt. No.
65]. On June 7,
Dismiss ("COH Mot.")
filed
the District
2013,
Motion to Dismiss
COH filed a Motion to
[Dkt. No. 66]. On July 3, 2013, the Hunters
their Opposition to
COR's Motion ("COH Opp'n")
COH filed its Reply
filed a
the District's Motion
( "COH Reply")
[Dkt. No.
77] ,
[Dkt. No.
26, 2013, the District filed its Reply ("Reply")
filed
a
2 013,
Statement
of
and
[Dkt. Nos. 73, 74]. On July 24, 2013,
with regard to the two negligence claims
On July 2 6,
( "Opp' n")
and an Answer
78]. On July
[Dkt. No. 81].
the U.S.
Department of Justice
Interest
related
District's Motion to Dismiss [Dkt. No. 79]
4
to
4
and
( "DoJ")
opposing
the
On October 29, 2013,
Pursuant to 28 U.S.C. § 517, "[t]he Solicitor General, or any
officer of the Department of Justice, may be sent by the
-6-
the District and COH both filed Responses to the Statement of
Interest [Dkt. Nos. 93, 94].
II.
STANDARD OF REVIEW
Under Rule
12 (b) (6),
a
plaintiff need only plead
"enough
facts to state a claim to relief that is plausible on its face"
and
to
"nudge[]
[his
or
her]
claims
across
conceivable to plausible." Bell Atl. Corp. v.
544, 570
naked
(2007).
"[A]
assertions
complaint
devoid
of
[does not]
omitted)
(citing
Twombly,
at
from
550 U.S.
suffice if it tenders
(2009)
u.s.
550
line
Twombly,
factual
further
Ashcroft v. Iqbal, 556 U.S. 662, 678
the
enhancement."
(internal quotations
557).
the
Instead,
complaint must plead facts that are more than "merely consistent
with"
a
defendant's
[must]
allow[]
liability;
"the
pleaded
factual
content
the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged." Id. at 678
(citing Twombly, 550 U.S. at 556).
" [O] nee
supported
by
a
claim
has
been
showing
any
set
stated
of
adequately,
facts
allegations in the complaint." Twombly,
consistent
550 U.S.
it
may
with
at 563.
be
the
Under
the standard set forth in Twombly, a "court deciding a motion to
Attorney General to
to attend to the
pending in a court
State, or to attend
any State or district in the United States
interests of the United States in a suit
of the United States, or in a court of a
to any other interest of the United States."
-7-
dismiss must
are true
assume all the allegations in the complaint
(even if doubtful in fact)
[and]
must give the
plaintiff the benefit of all reasonable inferences derived from
the
facts
alleged."
Aktieselskabet
AF
21.,
(internal quotations and citations omitted);
Napolitano,
reject
586 F.3d 1006,
or
address
the
1007
(D.C.
Cir.
government's
525
F.3d
at
17
see also Tooley v.
2009)
(declining to
argument
that
Iqbal
invalidated Aktieselskabet) .
III. ANALYSIS
The
District
Consequently,
and
COH
raise
several
similar
arguments.
the Court will address together the issues raised
by both parties to each Count of the Complaint. 5
A.
Counts I and III: Plaintiffs Have Sufficiently Alleged
Claims
Under
Title
II
of
the
Americans
with
Disabilities Act and Section 504 of the Rehabilitation
Act
Count
I
of
violated
Title
("ADA"),
42
the Amended Complaint
II
U.S.C.
of
§
the
12131
Americans
et
seq,
alleges
with
which
that Defendants
Disabilities
provides
that
Act
"no
qualified individual with a disability shall, by reason of such
5
COH originally argued that Plaintiffs' claims against it were
barred by the doctrine of release. COR Mot. at 19-21. Plaintiffs
then filed an Addendum to their Settlement Agreement with the
Partnership, clarifying that the document did not apply to or
settle any claims with any other organizations. Dkt. No. 69-2.
The Court approved this addendum in a Minute Order on June 17,
2013, and COH correspondingly withdrew this argument. COH Reply
at 2 n.l.
-8-
disability,
be excluded from participation in or be denied the
benefits of the services,
entity,
42
programs,
or activities of a public
or be subjected to discrimination by any such entity."
u.s.c.
12132.
§
Count III of the Amended Complaint alleges that Defendants
violated Section 504 of the Rehabilitation Act,
et seq. Similar to Title II,
activities
receiving
29 U.S.C.
§
701
Section 504 prohibits programs and
federal
funds
basis of disability. 29 U.S.C.
§
from discriminating on the
794 (a)
individual with a disability
("No otherwise qualified
shall,
solely by reason of
her or his disability, be excluded from the participation in, be
denied the benefits of, or be subjected to discrimination under
any program or activity receiving Federal financial assistance .
. "); see also Young v. D.C. Hous. Auth., No. 13-652, 2014 WL
948317, at *5 (D.D.C. Mar. 12, 2014).
The focus
ADA
because
of
it
the Rehabilitation Act
only
applies
to
is narrower than the
programs
receiving
federal
financial assistance. Powell v. Nat'l Bd. of Med. Examiners/ 364
F.3d 79,
Because
funds 1
85,
opinion corrected 1
Plaintiffs
Compl.
~~
allege
8-9,
the
that
511
the
F.3d 238
District
Rehabilitation
Act
(2d Cir.
receives
claims
2004).
federal
and
the
Title II claims against the District may be considered together.
Mot.
at
5-6,
6 n.4;
Opp 1 n at 4;
-9-
see also Am.
Council of the
Blind
v.
(noting
Paulson,
that
substance
the
that
253
F.3d
1260
Cir.
n.2
provisions
interpreting
(citation
(D.C.
1256,
statutory
"cases
interchangeable"
F.3d 249,
525
1999)
are
either
omitted));
(D.C.
so
are
Harrison
Cir.
2008)
similar
in
applicable
and
v.
174
Rubin,
("Claims and defenses under the
[ADA and the Rehabilitation Act] are virtually identical.").
COH argues that the ADA and the Rehabilitation Act do not
apply to it,
for various reasons.
The Court will first address
the substantive arguments raised by the District and then will
resolve applicability of these statutes to COH.
1.
Plaintiffs Are Not Required to Prove Intentional
Discrimination to Plead a Claim for Declarative
Relief
To establish a prima facie case under either Title II or
the Rehabilitation Act, a plaintiff must allege that
a qualified individual with a disability;
subject to the Acts; and
participate
programs,
in
or
(3)
benefit
or activities,
(2)
§
794 (a);
she is
the defendant is
she was denied the opportunity to
from
the
defendant's
services,
or was otherwise discriminated against
by the defendant because of her disability.
29 U.S.C.
(1)
see also McElwee v.
-10-
42 U.S.C.
Cnty.
§
12131;
of Orange,
700
F.3d 635,
640
(2d Cir. 2012)
(citing Henrietta D. v. Bloomberg,
331 F.3d 261, 272 (2d Cir. 2003)). 6
Although a plaintiff "need not plead a prima facie case of
discrimination"
in
Swierkiewicz
Sorema
District
alleged
v.
does
a
not
prima
order
N.A.,
dispute
facie
to
survive
534
that
case
a
U.S.
motion
506,
Plaintiffs
under
the
515
have
Acts. 7
to
dismiss,
(2002),
the
sufficiently
Instead,
the
6
Title II defines "discriminate" to include a failure to make
"reasonable modifications." See 42 U.S.C. §§ 12131(2), 12132;
see also 28 C.F.R. § 35.130 (b) (7) ("A public entity shall make
reasonable modifications in policies, practices, or procedures
when the modifications are necessary to avoid discrimination on
the
basis
of
disability,
unless
the
public
entity
can
demonstrate that making the modifications would fundamentally
alter the nature of the service, program, or activity."); see
also McElwee, 700 F.3d at 640-41 (2d Cir. 2012) (noting that
"[u]nder both statutes, a defendant discriminates when it fails
to make a reasonable accommodation that would permit a qualified
individual to have access to and take a meaningful part in
public
services")
(internal
quotation
marks
and
citation
omitted)
The parties use the term "reasonable accommodations" to refer to
these
requests.
This
Court
will
also
use
"reasonable
accommodations" to encompass "reasonable modifications" under
Title II. See McGary v. City of Portland, 386 F.3d 1259, 1266
n.3 (9th Cir. 2004) (citation omitted) ("Although Title II of
the ADA uses the term 'reasonable modification,' rather than
'reasonable
accommodation,'
these
terms
create
identical
standards.").
7
In its Response to the United States' Statement of Interest,
the District argues for the first time that Plaintiffs failed to
sufficiently plead that the District discriminated against A.H.
"because of" her disability. Def. Dist. of Columbia's Resp. to
Statement
of
Interest
of
the
United
States
of
America
("Response") at 9-10. As the District failed to raise this
-11-
District's primary argument
is
that
Plaintiffs have
failed to
allege facts to support a claim that the District acted with the
required intent. Mot. at 5-8.
As
the
District
intentional
admits
discrimination
compensatory damages.
in
is
its
only
Response,
relevant
Response at 9 n. 5;
Cnty. Hosp. Dist., 701 F.3d 334, 344
the
issue
of
the
issue
of
to
Liese v.
Indian River
(11th Cir. 2012)
(observing
that failure to provide reasonable accommodation "by itself will
not sustain a claim for compensatory damages;
the
[plaintiffs]
must also show by a preponderance that the [defendant] 's failure
to
provide
appropriate
result
of
Little
Rock,
every Court
intentional
639
F.3d
of Appeals
[reasonable
accommodations]
discrimination");
384,
to
388
Meagley
(8th Cir.
address
the
2011)
issue
has
v.
was
the
City
(noting
of
that
held that
a
plaintiff may not recover compensatory damages under the ADA or
the Rehabilitation Act without proof of discriminatory intent) .
Therefore,
Plaintiffs do not have to allege discriminatory
intent in order to be entitled to the declaratory relief they
request.
Compl.
at
38
(praying
for
declaratory
relief);
Am.
argument in either its Motion or its Reply, it has waived it.
See Alston v. Dist. of Columbia, 561 F. Supp. 2d 29, 37 (D.D.C.
2008); cf. Williams v. Romarm, SA, No. 13-7022, 2014 WL 2933222,
at *3 (D.C. Cir. July 1, 2014) ("Questions not presented and
argued by the parties in a sequence affording appropriate
consideration are forfeited, and we accordingly decline to rule
on the issue since it was not properly raised.").
-12-
Council,
525
F. 3d at
1260
(noting that
require proof of discriminatory intent
v. Choate, 469 U.S.
Corp.,
184
F.3d
287,
1147,
295
11
"section 504
)
does not
(discussing Alexander
(1985)); Powers v. MJB Acquisition
1152
(lOth
Cir.
1999)
("[I]ntentional
discrimination is not an element of the plaintiff 1 s prima facie
case.
11
)
•
Consequently,
Plaintiffs
have
sufficiently
alleged
violations under both Title II of the ADA and the Rehabilitation
Act for declarative relief.
2.
The
Plaintiffs Have Sufficiently Alleged Deliberate
Indifference By the District of Columbia
District
argues
that
Plaintiffs
have
failed
to
sufficiently allege that it acted with deliberate indifference,
and,
hence,
that
Plaintiffs,
request
for
compensatory damages
under the ADA and the Rehabilitation Act must be dismissed. 8
8
In a footnote, the District argues that it does not "concede
that "deliberate indifference
is the appropriate standard and
suggests
that
Plaintiffs
must
plead
"intentional
discrimination.
Mot. at 5 n. 3. Our Court of Appeals has not
addressed the appropriate standard, but almost all other Courts
of Appeal to reach the issue have concluded that the "deliberate
indifference
standard is appropriate. See Liese, 701 F. 3d at
345-47 (noting that Eighth, Ninth, Tenth, and Second Circuit
have held that deliberate indifference standard applies, and
choosing to apply that standard); but see Delano-Pyle v.
Victoria Cnty., Tex., 302 F.3d 567, 575 (5th Cir. 2002) (finding
that
"[t]here
is
no
'deliberate
indifference,
standard
applicable to public entities for purposes of the ADA or the
Rehabilitation Act).
However,
since the District does not
provide support for its argument that a higher standard should
apply,
the
Court
will
assume without
deciding that
the
deliberate indifference standard applies.
-1311
11
11
11
11
Deliberate indifference occurs when a "defendant knew that
harm to a federally protected right was substantially likely and
. failed to act on that likelihood." Liese,
(quoting T.W.
ex rel.
Wilson v.
Fla., 610 F.3d 588, 604
Sch.
Bd.
of
701 F.3d at 344
Seminole
(11th Cir. 2010)); Meagley,
Cnty.,
639 F.3d at
389 (noting that deliberate indifference can be "inferred from a
defendant's
deliberate
indifference
to
the
strong
likelihood
that pursuit of its questioned policies will likely result in a
violation
rel.
of
federally
Barber v.
Colo.
protected
rights")
Dep't of Revenue,
(quoting
Barber
562 F.3d 1222,
ex
1228-29
(lOth Cir. 2009)). 9
Plaintiffs present two different theories under which the
District
can
indifference.
be
First,
found
to
have
acted
with
deliberate
Plaintiffs allege the District acted with
deliberate
indifference
obligations
under
the
by
failing
to
enforce
ADA.
Second,
Plaintiffs
its
own
allege
the
District is responsible for the deliberate indifference of its
contractors. The Court will address each theory in turn.
9
The District argues that Plaintiffs have to allege and prove
"actual knowledge" of a violation to establish deliberate
indifference. Mot. at 6-8; Reply at 2-5. However, the case it
cites for that proposition, Liese, clearly states that the
standard only requires an allegation that a defendant have
knowledge that harm to a right is "substantially likely," not
that it have actual knowledge of a violation. Liese, 701 F.3d at
344.
-14-
a.
Direct Liability
First, Plaintiffs allege that the District was deliberately
indifferent
to
its
affirmative
obligation
under
the
ADA
to
ensure that its contractors not discriminate in the provision of
public services on the basis of disability. The District argues
that it does not have any affirmative obligation to monitor the
actions of the contractors.
Regulations promulgated by the DoJ make clear that public
entities
cannot
provision
§
of
35.130 (b) (1)
liability
escape
services
to
a
by
contracting
private
entity.
away
the
C.F.R.
28
("A public entity, in providing any aid, benefit,
or service, may not, directly or through contractual, licensing,
or
other
arrangements,
on
the
basis
of
disability
discriminate against an individual with a disability);
35 ,
App ' x
A,
at
51 7
(2 0 02 )
public entities are covered,
contractors.
For example,
ensure that
the services,
park
inn operated under
("All
governmental
II
id.
activities
pt.
of
even if they are carried out by
a State is obligated by title II to
programs,
contract
and activities of a State
by a
private
entity are
in
"arbitrary,
capricious,
or
compliance with title II's requirements.")
Unless the DoJ regulations are
manifestly
contrary
to
the
statute,"
"controlling weight." Chevron U.S.A.,
-15-
they
should
be
given
Inc. v. Natural Res. Def.
Council,
Inc.,
Arlington
467
v.
U.S.
FCC,
ambiguities will
interpretation,
133
be
not
837,
S.
844
Ct.
resolved,
by
the
(1984);
1863,
see
1868
but
by
the
City
of
("Statutory
(2013)
within the bounds
courts
also
of
reasonable
administering
agency."). The District does not argue that the regulations are
arbitrary or
capricious.
Indeed,
all
of
the
courts
that
have
addressed the regulations have concluded that they are entitled
to deference. See,
00409,
e.g.,
Kerr v. Heather Gardens Ass'n, No.
2010 WL 3791484, at *9
(D. Colo. Sept. 22,
2010)
09-
("[T]he
regulations directing that a public entity is liable under Title
II
for
direct
conduct
through contracting,
capricious,
the
as
well
licensing,
as
indirect
or the like,
or manifestly contrary to
regulations
are
entitled
conduct,
to
the
achieved
is not arbitrary,
statute.
Therefore,
controlling weight.")
(citing
Chevron, 467 U.S. at 844); Armstrong v. Schwarzenegger, 622 F.3d
1058, 1065-67 (9th Cir. 2010)
history
and
holding
that
(analyzing statute and legislative
regulations
"reflect
the
fairest
reading of the statute").
Instead,
the
regulations are
District
argues
that
the
statute
and
the
satisfied so long as the public entity merely
requires its contractors to comply with the statute. Mot. at 67.
Its
only
contained
citation
in an
to
support
illustration
this
in the
-16-
argument
DoJ' s
Title
is
II
language
Technical
Assistance Manual stating that a State parks department would be
"obligated
to
ensure
restaurant
in a
by
contract"
State park
that
a
"operated in a
privately
manner that
owned
enables
the parks department to meet its title II obligations." Id. at 6
(citing United States Dep' t
of Justice,
Americans With Disabilities Act:
Manual
("TAM")
the
ADA
other
illustrations
obligations
including
of
particular
a
Illustration
ensure
its
title
II."
TAM
4
contracts
§
District
Court
examples
"support
the
a
in
II
Technical
the
are
Assistance
a
carried
District
conclusion
demonstrate
go
beyond
contracts
that
ill us.
TAM
entity
its
states
II-1. 3000,
for
in
public
language
contractors:
that
Title
The
II-1.3000, illus. 1).
§
However,
Civil Rights Div.,
4
public
out
in
Colorado
that
a
simply
with
private
entity
"must
accordance
(emphasis
of
that
added).
As
observed,
public
entity
with
the
these
cannot
escape its obligations under Title II by delegating its duties
to
a
private
entity
entity.
remains
authority
or
Indeed,
subject
duty
to
to
in
Title
another,
each
II
illustration
despite
private
its
entity."
the
public
delegation
Kerr,
2010
of
WL
3791484, at *10.
A number of courts have confirmed that public entities have
an
obligation
with
title
II
to
of
ensure
the
that
ADA.
their private
Henrietta
-17-
D.,
contractors
331
F.3d
at
comply
284-86
(holding that general
rules of contract apply and supervisory
liability exists under Rehabilitation Act);
v.
Linn Cnty.,
2002)
Iowa,
(noting that
Hahn ex rel.
191 F. Supp. 2d 1051,
its
1054 n.2
Barta
(N.D.
Iowa
earlier opinion had concluded that
"a
contractual relationship between a public and a private entity
may
obligate
the
public
entity
to
ensure
that
the
private
entities with which it contracts comply with the public entity's
Title II obligations,,); James v.
No . 9 7 - 7 4 7 ,
19 9 9 WL 7 3 51 7 3 ,
Peter Pan Transit Mgmt.,
at * 9
Inc.,
( E . D . N . C . Jan . 2 0 , 19 9 9 )
( "A
public entity must not only ensure by contract that the private
entity
with
further,
for
it
contracts
complies
with
title
II,
but
must ensure that the private entity complies with the
contract.,,);
(N.D.
whom
Deck v.
Ohio 1999)
failing
to
City of Toledo,
56 F.
Supp.
2d 886,
895
(noting that public entity can be held liable
oversee
its
contractors,
even
if
it
did
not
affirmatively intend to discriminate) .
In sum,
the District has not presented any support for its
argument that it has no obligation to ensure that its private
contractors
comply
with
its
ADA
and
Rehabilitation
Act
obligations, and all courts to address the issue have found that
they
have
such
an
obligation.
Thus,
the
Court
holds
that
Plaintiffs may proceed on a theory that the District is directly
-18-
liable for its deliberate indifference to its obligations under
the ADA and the Rehabilitation Act.
b.
Plaintiffs
Vicarious Liability
also
argue
for
that
the
the
District
deliberate
can
be
indifference
held
vicariously
liable
of
its
contractors.
The District concedes that a public entity can be
held liable under the ADA for the deliberate indifference of its
employees or agents. Mot. at 6 n.5. It argues, however, that the
other Defendants
in this case are
independent
contractors for
whose actions it cannot be held liable. Id.
As
a
"general
for
liable
actions
Interstate Fire
7024,
W.M.
&
Cas.
an
11
entity
taken
Co.
by
v.
2014 WL 3538081, at *6
is
Wash.
(D.C.
held
vicariously
contractor.
Hosp.
Ctr.
Corp.,
Cir. July 18,
2014)
673 A.2d 647,
No.
13-
(citing
651
(D.C.
"In determining whether a person is an employee or an
independent
multiple
not
independent
an
Schlosser Co. v. Md. Drywall Co.,
1996)).
the
rule,
contractor,
District
specified factors.
"decisive
test
is
11
Id.
whether
of
courts
consider
( citations omit ted) .
However,
the
Columbia
employer has
the
right
to
control and direct the servant in the performance of his work
and the manner in which the work is to be done.
quotations and citation omitted) .
-19-
11
Id.
(internal
Plaintiffs allege that the District not only had the right,
but
the
obligation,
to
control
and
ensure
its
contractors'
compliance with the ADA and the Rehabilitation Act. Compl.
10,
59,
96,
argument
factual
100.
that
contractors
that
are
are
not
485-86
(D.C.
independent
and
resolved in a motion to dismiss.
679 A.2d 480,
8,
Plaintiffs then point out that the District's
its
disputes
~~
cannot
Beegle v.
1996)
is
be
based
on
appropriately
Rest.
Mgmt. ,
Inc. ,
(relying on information from
discovery to determine the nature of the employment relationship
between an individual and a company)
Area Transit Auth.,
1991)
("[W]hether
independent
No.
or
contractors
91-646,
not
the
cannot
i
Anderson v.
1991 WL 197024,
subcontractors
be
determined
Wash.
at
*2
Metro.
(D.D.C.
were
on
in
fact
a
motion
to
dismiss.") . 10 Although the District may again raise the issue of
its relationship to its contractors after discovery,
have sufficiently pleaded facts
that,
Plaintiffs
in conjunction with "the
benefit of all reasonable inferences" Aktieselskabet AF 21., 525
10
Moreover, even if the contractors are found to be independent,
the District may still be held vicariously liable under various
exceptions to the independent contractor rule. See Cooper v.
U.S. Gov't & Gen. Servs. Admin., 225 F. Supp. 2d 1, 5 (D.D.C.
2002)
(noting that the rule is
"riddled with exceptions
specifying certain conditions under which employers may be held
vicariously liable," including an exception for "non-delegable
duties
arising out of some relation toward the public")
(citing Restatement (Second) of Agency, § 219 (1958)).
-20-
F.3d at 17,
allow them to proceed on their theory of vicarious
liability at this time.
3.
The
The District's Remaining Arguments Lack Merit
Court
will
briefly
address
the
remaining
arguments
raised by the District.
First,
Complaint
the District argues that various allegations in the
are
inconsistent.
expressly permit
Civ.
P.
8 (d) (2)
claim or
parties
Mot.
at
to plead
8-9.
in the
The
Federal
alternative.
Rules
Fed.
R.
("A party may set out 2 or more statements of a
defense
alternatively or
hypothetically,
single count or defense or in separate ones.
alternative statements,
either
If a
in
a
party makes
the pleading is sufficient if any one of
them is sufficient."). Moreover,
the Rules specifically permit a
party to "state as many separate claims or defenses as it has,
regardless
of
consistency."
Fed.
R.
any inconsistency in Plaintiffs'
Ci v.
P 8 (d) (3) .
allegations
Therefore,
is not a
basis to
dismiss their claims.
Second,
the
This
the
Complaint
are
argument,
District
not
too,
argues
pleaded with
misunderstands
Plaintiffs need merely include a
the
claim,"
Fed.
R.
that
Ci v.
P.
various
"sub-counts"
specificity.
the
relevant
Mot.
at
of
9-11.
requirements.
"short and plain statement of
8 (a) (2) ,
sufficient
to
put
a
defendant on notice of the claims against it. Kingman Park Civic
-21-
Ass'n v.
Williams,
348 F.3d 1033,
1040
(D.C.
Cir.
2003)
(" [T]he
complaint need only set forth a short and plain statement of the
claim giving
grounds
the
upon
defendant
which
it
fair
notice
rests.")
of
the
(internal
claim
and
the
quotations
and
citations omitted) .
Plaintiffs
specifically
~~ 97,
104,
submitted a
incorporates
111,
specificity,
119,
the
detailed Complaint,
all
130,
of
143,
149. Moreover,
"sub-counts"
the
facts
identify
the
alleged.
122-124,
140.
Thus,
Plaintiffs
have
Compl.
rather than lack
various
Plaintiffs intend to pursue as to each claim.
116,
and each claim
Id.
~~
theories
101,
provided more
108,
notice
and information than is required by the Rules, and this is not a
basis to dismiss these claims.
In sum,
none of the District's remaining arguments support
a dismissal of Plaintiffs' claims.
4.
Plaintiffs Have Sufficiently Alleged That COH Is
a "Public Entity"
COH argues that it is not subject to the ADA because it is
not
a
defines
"public
a
entity."
"public
entity"
and "any department,
instrumentality of
a
COH
as
agency,
Mot.
at
5-8.
"any State or
42
U.S.C.
local
-22-
or
local
12131
government,"
special purpose district,
State or States
§
or other
government."
42
u.s.c.
§
12131 (1) (A)
The
(B) .
I
District of Columbia. Id.
§
The TAM notes that,
term
includes
"State"
the
12103(2).
"[i]n some cases,
it is difficult to
determine whether a particular entity that is providing a public
service .
then
is in fact a public entity." TAM
lists
four
relationship
factors
between
the
to
be
considered
entity and
the
in
§
II.l.2000.
examining
governmental
It
"the
unit
to
determine whether the entity is public or private":
1) Whether the entity is operated with public funds;
2) Whether
the
entity's
government employees;
employees
are
considered
3) Whether the entity receives significant assistance
from the government by provision of property or
equipment; and
4)
Whether the entity is governed by an independent
board selected by members of a private organization
or a board elected by the voters or appointed by
elected officials.
Id.
It is undisputed that Plaintiffs have alleged that COH is
"operated with public funds," and that COH "receives significant
assistance
Compl.
~
from the government
11.
COH
Plaintiffs have
employees
or
is
argues
failed
by provision of property."
that
this
to allege
governed
by
a
is
that
board
insufficient
COH
because
"employs government
elected
appointed by elected officials." COH Mot. at 8.
-23-
See
by
voters
or
The
TAM
does
not
state
that
all
four
factors
notes
§
that
all
II.1.2000.
fail
four
Thus,
are
"[f]actors
to
be
alleged all
it
considered.
COR's insistence that Plaintiffs'
because they have not
be
Rather,
satisfied for an entity to be considered "public."
must
TAM
claim must
four of these
factors
lacks merit.
COH cites a number of cases that concluded -- on motions
for
summary
judgment
on
a
full
factual
that
record
a
particular entity is private. See COH Mot. at 6-7 (citing Edison
v. Douberly, 604 F.3d 1307, 1311 (11th Cir. 2010); Green v. City
of New York, 465 F.3d 75, 79
Work Release Ctr.,
787 F.
(2d Cir. 2006); Maxwell v. S. Bend
Supp.
2d 819,
Obert v. The Pyramid, 2005 WL 1009567
822
(N.D.
Ind.
2011);
(W.D. Tenn. 2005); Doe v.
Adkins, 110 Ohio App. 3d 427, 434-35 (1996)).
COH
argues
should be
that
the
applied here.
analysis
Given
that
relied
on
there
is
in
no
these
full
cases
factual
record in this case and that Plaintiffs have alleged sufficient
facts that,
in combination with "all reasonable inferences"
Plaintiffs'
favor,
support
their
entity providing a public service,
claim
that
COH
is
a
in
public
the Court will not dismiss
the ADA claim against COH at this time.
See Aktieselskabet AF
21., 525 F.3d at 17 (internal quotations and citations omitted).
-24-
5.
COH
Plaintiffs Have Sufficiently Alleged that COH Is
a Recipient of "Federal Financial Assistance"
argues
also
Rehabilitation
Act
that
because
do
not
constitute
that include a
at
13-14
1202,
COH argues
federal
not
receive
"federal
"purely compensatory payments"
financial
Jacobson
assistance,
v.
Delta
Airlines,
911 F.2d 1377, 1382
1210;
U.S.
cases
entity
held
that
providing
DeVargas,
911
Olympic Comm.,
(noting
but
"payments
Inc.,
COH Mot.
742
F.2d
courts
the
(lOth Cir. 1990)).
should
alleged
look
that
F.2d at
94
"[t]he
F.
test
to
see
2d 1136,
1146
determine
whether
the
intended
"to
Jacobson,
1382-83;
Supp.
to
assistance
provide assistance or merely to compensate."
at
the
(9th Cir. 1984), and DeVargas v. Mason & Hanger-Silas
Mason Co., Inc.,
Those
to
subsidy" do constitute such assistance.
(citing
1209
subject
at 13-15. Relying on cases from
that
federal
not
does
it
financial assistance." COH Mot.
other Circuits,
is
it
also
Shepherd v.
(D.
whether
742 F. 2d
Colo.
a
2000)
government
transfer of money to an entity is a subsidy is whether Congress
or
the
federal
agency
administering
the
program
intended
to
subsidize the entity.")
Plaintiffs
funds
and
allege
that
for homeless programs,
services."
Compl.
~
11.
COH
"receives
federal
and District
health programs and other programs
In addition,
-25-
they allege
that
COH
"has
received
substantial
recent
federal
grants
from
[the
Departments of Health and Human Services] and [Housing and Urban
Development]."
Compl.
~
11.
Health and Human Services
("HHS")
has promulgated a regulation specifically noting that grants of
funds are federal financial assistance.
42 C.F.R.
For purposes of this motion to dismiss,
conjunction with the HHS regulation,
Plaintiffs'
claim
assistance.
See
that
Shepherd,
COH
94
84.3 (h) (1).
these allegations,
in
are sufficient to support
receives
F.
§
Supp.
federal
2d at
1146-47
financial
(denying
defendant's argument that claim should be dismissed as a matter
of law where plaintiff alleged defendant received federal grant,
based
on
"the
broad
definition
of
"financial
assistance"
in
Jacobson, cited with approval by the Tenth Circuit in DeVargas,"
and concluding that plaintiff "should be allowed the benefit of
discovery").
Therefore,
the
Court
will
not
dismiss
the
Rehabilitation
Act claims against COH at this time.
6.
Summary
Plaintiffs have sufficiently pleaded claims under both the
ADA and the Rehabilitation Act for both declarative relief and
compensatory damages.
-26-
Count II: Plaintiffs Have Sufficiently Alleged a Claim
Under the Fair Housing Act
B.
In 1968,
Congress
passed the
Fair Housing Act
Title VIII of the Civil Rights Act.
§
804,
As
82 Stat.
83
(1968),
originally enacted,
on race,
color,
of Edmonds v.
Pub.
L.
90-284,
codified at 42 U.S.C.
the
("FHA")
§
as
Title VIII,
3601 et seq.
FHA prohibited discrimination based
religion, or national origin.
Oxford House,
Inc.,
514 U.S.
Id.; see also City
725,
728 n.1
(1995).
The Supreme Court has emphasized that the language of the FHA is
"broad
and
inclusive,"
construction."
205,
209,
Trafficante
212
(1972);
and
v.
1988,
Metro.
of
Congress
1988,
Pub.
L.
a
Life
Ins.
Co.,
amended
No.
"generous
Inc. v.
409
U.S.
Dist.
of
coverage
to
(D.C. Cir. 1997).
individuals with disabilities.
Act
given
see also Samaritan Inns,
Columbia, 114 F.3d 1227, 1234
In
be
must
the
See
100-430,
FHA
The
to
extend
Fair Housing Amendments
102
Stat.
1619.
The
Act's
definition of discrimination was expanded to include "a refusal
to make reasonable accommodations in rules,
policies, practices,
or services, when such accommodations may be necessary to afford
[handicapped
persons]
dwelling." 42 U.S.C.
As
a
§
equal
to
use
and
enjoy
a
3604 (f) (3) (B).
preliminary matter,
FHA claim is a
opportunity
Plaintiffs make
"failure to accommodate"
-27-
claim.
clear that
Compl.
~
their
108 (c)
(citing 42 U.S.C.
to
accommodate"
discrimination.
§
3604
claims
(f) (3) (B)); Opp'n at 26. Such "failure
do
not
require
reasonable
plaintiff
to
prove
that
does
the
. ") .
The
challenged
District
relying solely on 2922 Sherman Ave.
444 F.3d 673
(D.C.
Cir.
not
argues
Tenants'
2006)
argument that Plaintiffs'
Inc.
to
intended
the
v.
("A claim
require
policy
the
to
contrary
Ass'n v. Dist. of
which does not even
address any failure to accommodate claims. Thus,
intentional
intentional
(lOth Cir. 2012)
accommodation
discriminate
Columbia,
of
See Cinnamon Hills Youth Crisis Ctr. ,
St. George City, 685 F.3d 917, 922-23
for
proof
the District's
FHA claims fail for failure to allege
discrimination
lacks
any
merit
and
no
case
law
supports it. See Mot. at 15-16.
Moreover,
the
District
is
incorrect
Plaintiffs'
that
characterization of their FHA claims as "failure to accommodate"
claims constitutes an abandonment of any other claims. Reply at
11. A failure to accommodate is a form of discrimination under
3604 (f) (3)
conditions
u.s.c.
§
i
sections
under
3604 (f) .
and
(f) (1)
which
such
(f) (2)
set
discrimination
Plaintiffs
are
is
pursuing
out
different
unlawful.
42
"failure
to
accommodate" claims under both subsections (f) (1) and (f) (2).
The Court will now turn to the substantive arguments raised
by the District and COH.
-28-
1.
"Dwelling"
The District and COH argue that neither DC General nor the
Girard Street Apartments is a "dwelling" under the FHA. The FHA
defines
a
"dwelling"
in
relevant
part
"any
as
building,
structure, or portion thereof which is occupied as, or designed
or
intended
for
occupancy
families." 42 U.S.C.
as,
a
residence
by
one
or
more
3602(b).
§
The FHA does not,
however,
define "residence." Most courts
that have considered the scope of the term have relied on the
definition used in United States v. Hughes Memorial Home, 396 F.
Supp.
544
dwelling
(W. D.
place,
Va.
197 5) ,
abode
or
which is
habitation
"a temporary or permanent
to
which
one
intends
to
return as distinguished from the place of temporary sojourn or
transient
visit."
Id.
at
549
(citing
Webster's
Third
New
International Dictionary); see Defiore v. City Rescue Mission of
New Castle, No.
12,
2013);
12-1590,
Jenkins v.
643 F. Supp. 2d 507,
2013 WL 7157990,
at *3
(W.D.
Pa. Dec.
New York City Dep't of Homeless Servs.,
517-18
(S.D.N.Y. 2009)
"have continued to look to the Hughes
(noting that courts
'plain meaning'
analysis
in determining what constitutes a dwelling under the FHA") aff'd
on
other grounds,
Foster,
391
F.
App'x
884 F. Supp. 1169, 1173
81
(N.D.
citing Hughes).
-29-
(2d
Ill.
Cir.
2010);
1995)
Woods
v.
(listing cases
Applying the definition used in Hughes, several courts have
concluded that temporary homeless shelters are "dwellings" under
the FHA. Defiore, 2013 WL 7157990, at *3-*4; Boykin v. Gray, 895
F. Supp. 2d 199, 207
517-18; Woods,
(D.D.C. 2012); Jenkins,
884 F.
643 F. Supp. 2d at
Supp. at 1173-74. Other courts have noted
without deciding that it is likely that at least some temporary
shelters are
"dwellings."
490 F.3d 1041, 1044 n.2
Cmty.
House,
(9th Cir. 2007)
Inc.
v.
City of Boise,
(en bane).
The District and COH argue that this Court should instead
rely
on
two
cases
that
concluded
that
temporary
homeless
shelters were not "dwellings." The first case, Johnson v. Dixon,
786 F. Supp. 1 (D.D.C. 1991), is not persuasive, since it merely
expressed
"doubt"
that
an
emergency
overnight
shelter
would
qualify as a dwelling, and then assumed without deciding that it
did so for purposes of its analysis.
of "doubt," with no analysis,
dicta.
In any event,
Id.
at 4.
This expression
is neither holding nor persuasive
it is certainly not,
as Defendants argue,
"the law of this Circuit."
The second case,
Rescue
Mission
Intermountain Fair Hous.
Ministries,
aff'd on other grounds,
717
F.
657 F.3d 988
Supp.
2d
(9th Cir.
Council v. Boise
1101
(D.
2011),
Idaho),
concluded
on a motion for summary judgment, not a motion to dismiss,
a particular homeless shelter did not qualify as a
-30-
that
"dwelling."
Id. at 1109-12. The procedural distinction between that case and
this
one
is
significant.
To
justify
its
the
conclusion,
Intermountain court analyzed many specific factors regarding the
terms of residence at the shelter - a factual analysis that is
clearly inappropriate at
this
stage
in these proceedings.
See
Abigail Alliance for Better Access to Developmental Drugs v. Von
Eschenbach,
495
F.3d
695,
723
(D.C.
Cir.
2007)
(noting
that
factual questions were "not properly resolved at the motion-todismiss stage when all
reasonable inferences must be drawn to
the plaintiff's benefit").
Moreover,
the
facts
upon
which
the
Intermountain
court
based its conclusion are very different from the facts alleged
here. The court relied on the following evidence:
[G]uests of the shelter are not charged a fee for
staying in the shelter; are assigned a bed in a
dormitory-style room, a hallway, or the day room;
generally are allowed to stay for a maximum of
seventeen consecutive nights (except during the winter
months when the maximum stay is more flexible due to
the danger that cold weather presents to homeless
individuals during the night); are not guaranteed the
same
bed
each night
they return;
with
limited
exceptions, are not allowed to stay at the shelter
during the day, are required to leave the shelter
every morning by 8:00 a.m., and may not return, except
for lunch, until 4:00 p.m.; are not allowed to leave
the shelter once they arrive in the evening; generally
are not allowed to stay at the shelter on a particular
evening if they do not check in during the designated
hours; are not allowed to personalize the bed area
assigned to them or leave belongings in their bed
area; and, with extremely limited exceptions, are not
-31-
allowed to receive phone calls, mail, or have visitors
at the shelter.
717 F. Supp. 2d at 1111.
In contrast,
Plaintiffs allege that there is no time limit
set on how long residents can remain at either D.C. General or
the Girard Street Apartments,
remain there indefinitely.
longer than the
shelter
at
issue
Hunters
in
stayed at
D.C.
December 29, 2011);
Street
Apartments
~~
~~
Compl.
(Girard Street Apartments) .
shelters
and that the Hunters expected to
Indeed,
42-43
General);
~
57
the Hunters stayed at both
seventeen-day maximum imposed by the
Intermountain.
General
69, 88
between
(D.C.
~~
Id.
37,
56
between December
7,
(alleging
2011,
and
(alleging Hunters stayed at Girard
December
29,
2011,
and
March
12,
2 012) .
In addition,
the Hunters allege that D.C. General provides
families with their own rooms, guarantees individuals the right
to access their rooms at all times of the day,
to return to the same room each day,
keep their belongings in their room.
allege
that
Community
of
Hope
apartment- style room with a key,
before
entering
apartment
~
families
to
43. The Hunters also
each
family
its
own
requires staff to give notice
units,
-32-
and permits
Id.
gives
allows families
and
permits
residents
to
decorate
~~
their
units
and
place
personal
items
in
them.
Id.
64-67.
All of these factual allegations support Plaintiffs'
claim
that both D.C. General and the Girard Street Apartments are "a
temporary
dwelling place, abode or habitation to which one
intends to return as distinguished from the place of temporary
sojourn or transient visit," Hughes,
neither
Johnson
nor
396 F. Supp. at 549. Thus,
Intermountain
Plaintiffs' FHA claim at this time. See Boykin,
at
206-07
(rejecting
Intermountain,
District's
and holding that
dismissing
supports
895 F. Supp. 2d
on
reliance
Johnson
the FHA was not
and
categorically
inapplicable to homeless shelters).
In
addition,
Development
explicitly
the
Department
has
( "HUD")
identifies
of
promulgated
"sleeping
and
Urban
regulation
which
Housing
a
accommodations
in
shelters
intended for occupancy as a residence for homeless persons" as
an example of
"the
federal
a
"dwelling unit."
24
C.F.R.
agency primarily charged with
and administration" of the FHA. Meyer v.
287
(2003)
regulation
§
The
should
District
not
be
has
offered
entitled
to
100.201.
the
Holley,
no
the
HUD is
implementation
537 U.S.
reason
280,
why
the
deference
due
reasonable agency interpretations. See Chevron, 467 U.S. at 844;
see also United States v. Univ. of Neb. at Kearney, 940 F. Supp.
-33-
2d
974,
981
(D.
"dwelling unit");
that
"the
Neb.
2013)
Cmty.
regulations
specifically
(deferring
House,
490
that
shelters qualify as 'dwellings'")
In
sum,
Plaintiffs
have
HUD's
F.3d at
interpreting
contemplate
to
the
definition of
1044-45 n.2
coverage
'residences'
of
within
(noting
the
FHA
homeless
11
sufficiently
alleged
facts
that,
with "the benefit of all reasonable inferences," Aktieselskabet
AF
21.,
525
F.3d
at
17,
support
their
claim
that
both
D.C.
General and the Girard Street Apartments were "dwellings" under
the FHA.
2.
"Sale or Rental" and "Buyer or Renter"
The District and COH also argue that Plaintiffs have failed
to state a claim under the FHA because they are not "buyer[s] or
renters" who were discriminated against in the "sale or rental"
of a dwelling. Mot. at 11-12; COH Mot. at 10-13.
Plaintiffs bring claims under two subsections of the Fair
Housing
11
Act.
42
U.S.C.
§
3604 (f) (1)
and
(2).
Both
sections
COH argues that there is a distinction between a "dwelling
unit" and a "dwelling," COH Reply at 5-6, but it cites no
authority in support of
that proposition.
Moreover,
HUD's
regulation on "reasonable accommodations" specifically uses the
term "dwelling unit." 24 C.F.R. § 100.204 ("It shall be unlawful
for any person to refuse to make reasonable accommodations in
rules,
policies,
practices,
or
services,
when
such
accommodations may be necessary to afford a handicapped person
equal opportunity to use and enjoy a dwelling unit, including
public and common use areas.").
-34-
require
that
the
discrimination occur
in
connection with
the
"sale or rental of a dwelling."
Some courts have noted the difficulties of establishing a
violation
shelters.
of
section
See Boykin,
3604(f)
895 F.
in
Supp.
the
context
2d at 210
of
homeless
(expressing doubt
that FHA claim was cognizable given that former residents of a
homeless shelter were neither buyers nor renters)i Johnson,
786
F. Supp. at 4 ("Plaintiffs, and the other inhabitants of the two
shelters,
are neither
[buyers nor renters].
Such accommodations
as they have had at the shelters in the past have been provided
gratis by the District.")
Living Program,
Inc.,
No.
(E.D.N.Y. Mar. 26, 2014)
buyers
in
supervised
their
see also Forziano v. Indep. Grp. Home
i
13-0370,
as
at *8 n.5
("Since [plaintiffs] are not renters or
respective
housing
2014 WL 1277912,
group
part
of
homes,
their
but
Medicaid
rather
receive
services,
they
cannot state a claim for relief under the FHA.").
However,
argument
none
that
of
those
courts
federally-funded
addressed
shelters
fall
Plaintiffs'
under
the
definition of the term "to rent" in the FHA. The FHA defines "to
rent" as "to lease,
for a
the
to sublease,
to let and otherwise to grant
consideration the right to occupy premises not owned by
occupant."
Defendants
42
receive
U.S.C.
§
federal
3602(e).
funds,
-35-
Plaintiffs
and
argue
allege
that
that
this
constitutes "considerationn
right
to
occupy
rooms
for giving homeless individuals the
in
homeless
shelters.
Opp'n
at
23;
Statement of Interest at 25-26.
A handful of courts have considered this argument and found
it persuasive. See Woods, 884 F. Supp. at 1175 (holding that the
receipt of federal funds in return for providing shelter for the
homeless was sufficient to establish that defendants "rent[ed]n
the shelter); Anonymous v.
No.
96-9198,
Goddard Riverside Cmty.
1997 WL 475165,
at *3 n.4
Ctr.,
Inc.,
(S.D.N.Y. July 18, 1997)
(assuming federal funds constitute consideration for housing for
purposes of resolving motion to dismiss) ;
Ins.
Co.,
75
F.
Supp.
2d
1,
contention that section 3604 (f) (2)
7
cf.
(D.D.C.
Wai v.
Allstate
(rejecting
1999)
"only applies to landlords or
providers of housingn).
Defendants argue that this Court should instead follow the
district court in Jenkins,
that a
"far more plausible reading of the statute would limit
the word 'rent'
right
to
to consideration paid by the person who has the
occupy
the
dwelling.n
specifically
noted
reaching
question of
under
643 F. Supp. 2d at 519, which stated
the
section
that
3604 (f).
the
district
whethern
391
However,
Fed.
the
App'x
the
court
Second
had
plaintiff
81,
83
"erred
was
(2d
Circuit
a
Cir.
in
renter
2010)
(upholding district court's conclusion that plaintiff had failed
-36-
to
state
an
FHA claim on other grounds) .
Thus,
the
district
court's decision in Johnson has no precedential value on this
issue.
Moreover, the Court finds that this case is more similar to
Defiore,
"[w]hat
2013
WL
qualifies
7157990,
as
in which
consideration
the
court
under
observed
the
FHA
that,
has
been
examined by a limited number of courts and this Court finds that
resolution
of
the
issue
will
receives consideration for a
turn
on
whether
[the
shelter]
resident's stay -- whether it be
from federal or other funding directed to subsidizing the costs
of
providing
housing
residents provide
to
some
the
homeless
form of
or
whether
consideration for
shelter
their stay."
Id. at *4.
In sum,
Plaintiffs have alleged that the District and COH
receive federal
with
programs
funds in order to provide homeless individuals
and
certain premises.
services,
including
~~ 8,
Compl.
11.
therefrom,
the
right
to
These allegations
"all
21.,
525
inferences"
F.3d at 17
(internal quotations and citations omitted),
U.S.C.
§
direction
3602(e),
to
"to rent"
set out
AF
and
reasonable
the broad definition of
Aktieselskabet
occupy
satisfy
in the statute,
42
particularly in light of the Supreme Court's
give
the
statute
Trafficante, 409 U.S. at 209, 212.
-37-
"generous
construction."
This reading of the definition of "rent" makes sense in the
context
of
subsection
"discriminate
against
privileges of
services
U.S.C.
or
[]
which
any person
rental
of a
facilities
3604 (f) (2).
§
(f) (2),
in
in
makes
the
dwelling,
to
conditions,
terms,
unlawful
or
or in the provision of
connection
Plaintiffs
it
with
have
such
alleged
dwelling."
that
they
42
were
discriminated against in the provision of services or facilities
that
appropriately
Plaintiffs
have
accommodated
sufficiently
stated
a
Thus,
handicap.
A. H. Is
claim
under
subsection
3604 (f) (2).
A harder question
term
"rent"
can
still
is whether
save
a
broad construction of
Plaintiffs'
claim under
the
subsection
3604(f) (1). That provision makes it unlawful to "discriminate in
the sale or rental,
dwelling
u.s.c.
§
to
any
or to otherwise make unavailable or deny,
buyer
or
renter
because
of
a
handicap."
a
42
3604 (f) (1).
The primary problem is that the discrimination in the sale
or
rental
renter."
rent,
to
under
Id.
subsection
Even
under
(f) (1)
Plaintiffs'
must
be
to
"any
construction
of
buyer
the
or
term
the "renters" are the federal agencies that provide funds
Defendants,
subsection
not
(f) (1)
the
Plaintiffs.
seems
to
limit
-38-
The
the
statutory
scope
language
of
of
unlawful
discrimination to the entity buying or renting the dwelling in
question.
The United States argues that
"courts have applied the FHA
to encompass a wide variety of conduct that does not involve a
refusal to sell or rent housing to owners or tenants." Statement
of
Interest at 24
&
24 n. 16.
interpreted the phrase
"otherwise make unavailable or deny"
expand the scope of the FHA.
District
have
similarly
broad range
of
buy or rent
a
Ctr.
v.
dwelling.
2010)
program
for
inhabiting
that
section
actions
& Urban Dev.,
Cmty.
their
recovery
homes);
Coal.
Nat'l
v.
2008 WL 977351, at *1-*3
However,
otherwise
because
these
of
make
of
the
723 F.
a
opportunity to
Fair Hous.
Supp.
2d 14,
Action
22-23
Cmty.
Reinvestment
573
F.
from
homeowners
prevented
Supp.
Coal.
2d 70,
v.
76-77
(permitting claim against mortgage lenders); Nat'l
Reinvestment
subsection
affect
reaches
(permitting plaintiffs to pursue claim that grant
disaster
2008)
3604 (a)
Greater New Orleans
Accredited Home Lenders Holding Co.,
(D.D.C.
to
The Court notes that cases in this
found
actors whose
Dep't of Hous.
(D.D.C.
It cites several cases that have
Fin.,
Inc.,
No.
07-0861,
(D.D.C. Mar. 31, 2008).
cases
section
were
3604,
unavailable
race,
Novastar
color,
brought
which
or deny[]
religion,
-39-
makes
a
under
it
dwelling
sex,
a
different
unlawful
to
familial
"[t]o
any person
status,
or
national origin."
id.
42 U.S.C.
3604 (f) (1)
§
unavailable
or
(making
deny[]
(emphasis added).
Co.,
978
3604
F.2d
See,
287,
"applies
a
to
cases
because
do
not
"otherwise
of
provide
make
3604 (f) (1)
dwelling
"to
to
any
N.A.A.C.P. v.
(7th
Cir.
that
the
(emphasis added);
unlawful
1992)
discriminatory
discriminatory pricing,
housing
it
e.g.,
301
3604 (a)
§
otherwise
buyer
Am.
of
of
support
unavailable
the
for
or
that
section
Thus,
proposition
language
deny"
Ins.
and
ownership
applicant").
the
renter")
insurance,
effectively preclude
race
or
make
Family Mut.
(holding
denials
compare
these
that
in
of
the
section
means that Plaintiffs do not have to establish that
they were a "buyer or renter.,,
Even in light of the Court,s obligation to construe the FHA
as
broadly
restricts
as
the
possible,
class
section 3604(f) (1)
to a
clear
people
of
the
who
language
can
bring
"buyer or renter," or,
of
a
the
statute
claim
under
at its broadest,
individuals who were otherwise denied the opportunity to become
a
buyer
Hunters
conclude
that
or
a
fall
that
renter.
There
into
either
the
Hunters
is
no
category.
have
such
allegation
Therefore,
failed
to
§
3604 (f) (1).
-40-
Court
sufficiently
the District or COH discriminated against
or renters" under 42 U.S.C.
the
that
them as
the
must
allege
"buyers
3.
Summary
Plaintiffs
have
sufficiently
alleged
that
the
homeless
shelters at issue in this case should be considered "dwellings"
under the
FHA.
Defendants
Plaintiffs have also
received
some
sufficiently alleged that
consideration
permitting them to reside in such dwellings,
proceed
§
with
3604 (f) (2).
their
claim
However,
of
for
exchange
in
such that they can
discrimination
under
42
U.S.C.
Plaintiffs have not sufficiently alleged
that they are "buyer[s]" or "renter[s]" such that they may bring
a claim under 42 U.S.C.
3604 (f) (1).
§
C.
Count IV: Plaintiffs Have Sufficiently Alleged Claims
Under the District of Columbia Human Rights Act
The
Hunters
provisions
of
("DCHRA"),
D.C.
Columbia
Court
remedial
civil
construed."
874, 887
See
argue
the
§§
Lively v.
of
has
have
Columbia
2-1401.01
Appeals
rights
(D.C. 2003)
Defendants
District
Code
of
that
et
that
statute
Flexible
that
several
Human
Rights
The
District
seq.
noted
violated
the
must
DCHRA
be
Act
of
"is
a
generously
Packaging Ass'n,
(quoting Executive Sandwich Shoppe,
830
A.2d
Inc. v.
Carr Realty Corp., 749 A.2d 724, 731 (D.C. 2000)).
The District and COH challenge Plaintiffs' six DCHRA claims
as deficient for different reasons. The Court shall address each
claim in turn.
-41-
1.
First,
under
Plaintiffs Have Sufficiently Stated a Claim Under
D.C.
Code
§ 2-1402.21(d) (2),
But
Not
§ 21402.21 (d) (1)
the District and COH argue that Plaintiffs'
section
reasons
2-1402.21(d)
of
Plaintiffs'
FHA
that
the
Plaintiffs are neither "buyer [s]
shelters at
issue are not
DCHRA
claims
fail
fail;
"dwellings.
11
the
same
namely,
nor "renter [s]
11
for
claims
See Mot.
that
and that the
11
at 16-17;
COH
Mot. at 15-16.
Defendants
are
correct
that
section
2-1402.21(d)
makes
discrimination associated with the sale or rental of a dwelling
unlawful
the
§
in language that parallels the analogous provision of
FHA.
Compare
3604 (f) .
D.C.
Code
2-1402.21(d)
§
"District of Columbia courts
'have generally looked [for guidance]
courts'
v.
arising under federal
Vital
(quoting
1301-02
Signs,
Inc.,
Benefits
(D.C.
116
Comm'n
1994));
see
civil
F.3d
Corp.
v.
also
(D.D.C. 1996)
the federal
and
have
42
U.S.C.
interpreting the DCHRA
to cases from the federal
rights statutes.
588,
591
P.C.,
Whitbeck
11
(D.C.
Cir.
1997)
642
A.2d
1299,
Klieforth,
Paralyzed
Ellerbe Becket Architects & Eng'rs,
with
Veterans
950 F.
of
Supp.
Am.
393,
v.
405
("The D.C. courts have always looked to cases from
courts
followed,
in interpreting the D.C.
wherever
applicable,
-42-
Human Rights Act,
precedents
from
the
federal courts' treatment of comparable civil rights statutes.
11
)
(citations omitted) .
As discussed above, see supra Sec. III.B.1, Plaintiffs have
sufficiently stated facts
claim
that
the
in their complaint to support
shelters
in
question
are
their
"dwellings.
11
In
addition, although Plaintiffs have failed to sufficiently allege
they
are
"buyer[s]
or
renter [s]
to
11
satisfy
section
2-
1402.21(d) (1) of the DCHRA, there is no such language in section
2-1402.21(d) (2) of the DCHRA. See supra Sec. III.B.2
difference
because
in
language
this
section
interpreted
in
Plaintiffs
may
discriminated
a
between provisions
of
the
DCHRA
parallel
fashion,
proceed
on
against
them
and
the
its
in
of
the
FHA) .
FHA
Court
claim
the
the
(discussing
should
concludes
be
that
Defendants
that
"terms,
Thus,
conditions,
or
privileges of sale or rental of a dwelling or in the provision
of
services
or
facilities
because of a disability,
on its
11
in
D.C.
connection
Code
§
with
the
2-1402.21(d) (2),
claim that Defendants discriminated against
dwelling
but not
them under
section 2-1402.21(d) (1).
2.
In a
failed
to
Plaintiffs Have Sufficiently Stated a Claim Under
D.C. Code§ 2-1402.2l(d) (3) (D)
footnote,
assert
the
facts
District
argues
sufficient
-43-
to
that
Plaintiffs
support
their
have
claims
"regarding the accessibility of their units."
This
argument
they
were
seems
to
be
challenging
discriminated
against
Mot.
at 17 n.13.
Plaintiffs'
claim
Code
D.C.
under
that
§
2-
1402.21 (d) (3) (D) . That section defines "unlawful discrimination"
to include a
contain
and
failure
"[a] n
to ensure that premises within a dwelling
accessible route
"usable kitchens
into and through the dwelling,"
and bathrooms
so that
an individual
~~
wheelchair can maneuver about the space." Compl.
see D.C. Code
§
2-1402.21(d) (3) (D) (i),
Plaintiffs
claim that
have
alleged
General
the
and
123(a),
(b);
(iv).
sufficiently
both D.C.
in a
facts
to
support
a
Girard Street Apartments
did not include accessible routes into the building and/or their
~
units.
See Compl.
front
door of D.C.
46
(alleging that A. H.
General because ramp is
and sidewalk is broken);
Apartments was
not
could not get
~
72
into
"excessively steep"
(ramp leading up to Girard Street
accessible
for A. H.);
in Girard Street Apartments was
broken) ;
~
73
~
(wheelchair lift
74
(no
elevator
~ 75
Girard Street Apartments to get to third floor apartment);
(hallways
within
accommodate
that
~
47
D.C.
Girard
wheelchair) .
General
(bathroom
in
did
Street
They
not
D.C.
apartment
have
include
General
-44-
also
a
were
too
narrow
sufficiently
usable
unsuitable
bathroom.
for
in
to
alleged
See
A.B.'s
id.
needs
because she had to be supported by Hunter and he could not hold
her and operate shower at same time) .
Thus,
Plaintiffs have alleged facts
sufficient to proceed
on their claims under sections 2-1402.21 (d) (3) (D) (i) and (iv)
of
the DCHRA.
3.
Plaintiffs Have Sufficiently Stated a Claim Under
D.C. Code§ 2-1402.3l(a) (1}
a.
Intentional Discrimination
Plaintiffs allege that Defendants have violated section 21402.31(a) (1)
of
things,
it
"deny,
that
the
is
directly or
enjoyment
of
advantages,
accommodations"
an
which
"unlawful
indirectly,
the
and
DCHRA,
goods,
discriminatory
any person the
services,
accommodations
because
establishes,
of
a
of
among
other
practice"
full
to
and equal
facilities,
privileges,
any
of
place
disability.
D.C.
Code
public
§
2-
1402.31 (a) (1) .
In a footnote,
DCHRA
requires
discrimination.
a
the District argues that this section of the
plaintiff
Mot.
at
16
to
plead
n.12.
It
and
is
prove
true
that
intentional
the
DCHRA
includes language, which is not included in either Title III of
the ADA or Title II of the Civil Rights Act, 12 requiring that the
12
Defendants discuss Title III of the ADA, 42 U.S.C. § 12181 et
seq., which prohibits discrimination on the basis of disability
in the "full and equal enjoyment" of "any place of public
-45-
discriminatory act be "wholly or partially for a discriminatory
. disability." Mot.
reason based on the actual or perceived .
at 16 n.12.
However, the parties have identified no case that discusses
a
plaintiff's
partially
burden
for
a
accommodations
to
prove
a
discriminatory
section
of
the
defendant
reason"
DCHRA.
Even
acted
under
if
"wholly
the
the
or
public
burden
for
pleading intentional discrimination was the same in this context
as
it is in the FHA context,
the Court has already concluded
that Plaintiffs have met that burden at this stage.
Sec.
III.A.4.
Therefore,
the
Court
will
allow
See supra
Plaintiffs
to
proceed on their claim against the District for discrimination
in the provision of public accommodations under D.C.
Code
2-
§
1402.31(a) (1) at this time.
b.
COH
argues
"Place of Public Accommodation"
that
the
Girard
Street
Apartments
are
not
a
"place of public accommodation" under the DCHRA. See COH Mot. at
16-17; COH Reply at 17. Specifically, it argues that the DCHRA's
enumerated
list
of
"places
of
public
accommodation"
does
not
accommodation."
Mot.
at
16
n .12
(discussing
42
U.S. C.
§ 12182 (a)). In addition, the Court notes that Title II of the
Civil Rights Act, 42 U.S.C. § 2000a et seq., also outlaws
discrimination in the provision of public accommodations. 42
U.S.C. § 2000a(a)
-46-
include
a
homeless
shelter.
(citing
Id.
Code
D.C.
2-
§
1401.02 (24)).
Section 2-1401.02(24) of the DCHRA defines places of public
accommodation as "all places included in the meaning of" a long
list
of
terms.
D.C.
Code
§
2-1401.02(24)
Although
COH
is
correct that homeless shelter is not one of the terms listed,
a
member of this court has already noted that the term "place of
public accommodation"
is defined "broadly" under the DCHRA and
"would seem to include homeless shelters." Boykin,
895 F. Supp.
2d at 217 n.16.
Moreover,
the
accommodation"
under
Disabilities Act,
shelter
U.S.C.
as
§
parallel
an
Title
42
U.S. C.
entity
12181 (7) (K).
provision
of
III
§
12181,
considered
a
Given that D.C.
does
include
public
Supp.
2d
District of
"generally
at
219
(citation
Lively,
omitted),
830
a
homeless
accommodation.
42
courts look for guidance
Columbia's determination that
construed,"
with
Americans
the
to the parallel federal civil rights statutes,
F.
"public
defining
A.2d
and
see Boykin,
in
light
of
895
the
the DCHRA should be
at
887,
the
Court
concludes that the Girard Street Apartments should be considered
a
"place of public accommodation" under section 2-14 02. 31 (a) ( 1)
of the DCHRA.
-47-
4.
Section
things,
District
that
Plaintiffs Have Sufficiently Stated a Claim Under
D.C. Code § 2-1402.73
2-1402.73
of
it
"unlawful discriminatory practice for a
is an
government
the
agency
provide any facility,
DCHRA
or
establishes,
office
to
or
other
refuse
to
service, program, or benefit" on the basis
of an individual's disability. D.C. Code
Defendants
limit
among
argue
that
Plaintiffs
§
2-1402.73. 13
have
failed
sufficient facts to support this claim. First,
to
the
allege
District
argues that Plaintiffs have failed to sufficiently allege that
any District
service
to
agency or
the
office
Hunters
"limit [ed]"
because
no
such
or
"refuse [d]"
agency
or
any
office
"directly interacted" with Plaintiffs. Mot. at 17; Reply at 13.
The text of the statute does not contain or suggest such a
"direct interaction" requirement.
D.C. Bd.
of Adjustment,
In George Washington Uni v. v.
831 A.2d 921
(D.C.
2003),
the District
of Columbia Court of Appeals discussed the provision and noted
that
it
District
"appears
of
to
Columbia
be
directed
government
Plaintiffs have alleged that
Human
13
Services
( "DHS")
and
at
the
programs."
administration
Id.
at
941
of
n.16.
they relied on the Department of
the
Office
of
Shelter
Monitoring
Another member of this court has noted that, "[t] here is a
dearth of case law respecting this provision, which became
effective in 2002, and the [c]ourt has not located any decisions
applying it." Boykin, 895 F. Supp. 2d at 218.
-48-
("OSM")
to
ensure
compliance
discrimination
provisions
inventory
information
and
and
with
to
federal
maintain
relating
~~
those with disabilities. Compl.
to
and
local
records
their
of
antishelter
accessibility
to
89-91. Construed in the light
most favorably to Plaintiffs, as this Court must, Aktieselskabet
AF
21.,
525
omitted),
F.3d
these
at
17
(internal
allegations
agencies
refused
to provide
program,
or benefit"
disabled
individual.
quotations
support
a
claim
an appropriate
and
citations
that
District
"facility,
service,
to the Hunters based on A.H.'s needs as a
Therefore,
the
Court
will
not
dismiss
Plaintiffs' claim under this section of the DCHRA on this basis.
Second,
the District argues that homeless shelter services
are not the type of
at 17 n.14.
a
Name v.
Society Without
a
"services" under the FHA,
limited to
broader
facility,
than
service,
compare 42 U.S. C.
the
Virginia,
Name
it cites only one case,
655
F. 3d
construed the
42 U.S.C.
§
Mot.
3604 (b)
342
scope of
and
(4th Cir.
the
(f) (2),
term
to be
"services generally provided by governmental units."
Id. at 349-50. However,
much
covered by this provision.
In support of its argument,
A Society Without
2011).
"services"
provision
of
the
the
program,
§
3604 (b)
services
relevant
FHA
section
provisions,
or benefit." D.C.
of
the
DCHRA
encompassing
is
"any
Code § 2-1402.73;
(making unlawful discrimination "in
or
facilities") ;
-49-
id.
§
3 604 (f) (2)
(same) . Thus, the Court is not persuaded that Society Without a
Name
provides
an adequate
basis
to
dismiss
Plaintiffs'
claim
under this section of the DCHRA at this time.
5.
Plaintiffs Have Sufficiently Stated a Claim Under
D.C. Code § 2-1402.67
Section 2-1402.67 of the DCHRA states:
All
permits,
licenses,
franchises,
benefits,
exemptions, or advantages issued by or on behalf of
the government of the District of Columbia, shall
specifically require and be conditioned upon full
compliance with the provisions of this chapter; and
shall further specify that the failure or refusal to
comply with any provision of this chapter shall be a
proper basis for revocation of such permit, license,
franchise, benefit, exemption, or advantage.
D.C.
Code
§
2-1402.67.
The
District
argues
that
Plaintiffs'
claim under this section fails for two reasons. 14
First,
the District
argues
that because
the Hunters have
failed to identify any particular document in which the District
14
The District notes for the first time in its reply that
section
2-14 02. 67
only
references
"permits,
licenses,
franchises, benefits, exemptions, or advantages," but does not
specify "contracts." Reply at 13. Thus, it argues that the
Hunters'
allegations
regarding
contracts
are
inherently
insufficient.
The District does not explain why the contracts at issue here
should not
be
considered
"permits,
licenses,
franchises,
benefits, exemptions, or advantages." D.C. Code § 2-1402.67
(emphasis added) . Moreover, given the fact that the District
raised this argument for the first time in its reply brief, the
Court will not address it here. See supra n.7; see also St. Paul
Mercury Ins. Co. v. Capitol Sprinkler Inspection, Inc., 657 F.
Supp. 2d 243, 247 n.1 (D.D.C. 2009)
(declining to address
argument that was raised for the first time in reply brief) .
-50-
did not condition compliance with the DCHRA
dismissed.
District
had
~
Compl.
against
Mot.
at
18.
contracts
However
with
the
1
the
their claim must be
1
Hunters
operators
allege
of
the
that
the
shelters.
9-10. They also allege that the operators discriminated
them on the basis of disability/
anti-discrimination
Plaintiffs argue
provisions
that
of
in violation of
DCHRA.
the
these allegations
that
~
Id.
the
the
122.
shelters did
not comply with the DCHRA allow the Court to reasonably infer
that
the
District
did
not
condition
its
contracts
with
the
shelter operators on compliance with the DCHRA. Opp n at 29.
1
The
Hunters
read together
1
are
correct
that
when
these
allegations
are
it is reasonable to infer that the District did
not condition the contracts on compliance with the DCHRA. 15 Thus/
the
Court
will
not
dismiss
Plaintiffs/
claim
under
this
subsection of the DCHRA on that basis.
Second
1
the District argues that even if the Hunters have
sufficiently alleged a violation of section 2-1402.67
must be dismissed because the District has
15
1
the claim
sovereign immunity
Moreover 1 the Court has already ruled that the contracts
between the District and the other Defendants will be reviewed
for the purpose of determining the relationship between the
Defendants. See supra Sec. III.A.4.b. Whether those contracts
contain a provision requiring compliance with the DCHRA can be
resolved definitively once those contracts have been exchanged
in discovery.
-51-
regarding
"[e] nforcement
of
the DCHRA' s
compliance requirement
for permits and licenses." Mot. at 19.
The doctrine of sovereign immunity protects the District of
Columbia from suit for its discretionary activities.
Dist. of Columbia,
v.
Dist.
of
"Generally,
669 A.2d 685,
Columbia,
602
discretionary
690
(D.C. 1995)
A.3d
acts
1123,
(citing Powell
1126
involve
Nealon v.
(D.C.
1992)).
formulation
the
of
policy, while ministerial acts involve the execution of policy."
Nealon, 669 A.2d at 690.
Although the District describes the statute as "refer[ring]
to
enforcement
decisions,"
Reply
at
14,
the
statute does not support that interpretation.
states
that
licenses,
District
franchises,
compliance
"shall"
the
with
creates
the
a
"shall"
benefits,
statute.
mandatory
Code
§
obligation,
of
the
Section 2-14 02. 67
condition
exemptions,
D.C.
language
its
or
advantages"
2-1402.67.
not
"permits,
a
The
on
word
discretionary
ability to enforce. See Kakeh v. United Planning Org., Inc., 655
F.
Supp.
when a
2d 107,
123
statute uses
(D.D.C.
the
2009)
term
("It
'shall,'
it
is well-settled that
creates
a
mandatory
duty."). The District fails to provide any convincing reason why
the use of the word "shall"
in this statute suggests anything
other than a mandatory duty.
-52-
The crux of the Hunters'
claim is not
that
the District
failed to enforce a provision it had in any particular contract
that required compliance with the DCHRA,
but,
failed to include such a provision at all.
instead,
that it
Because the statute
creates a mandatory duty to include such provisions,
it should
be considered a ministerial duty and outside the scope of the
District's sovereign immunity. Nealon,
669 A. 2d at 690
("If the
act is committed in the exercise of a ministerial function,
the
District is not immune.").
In
District
sum,
Plaintiffs
failed
compliance
to
with
have
sufficiently
comply with
the
franchises,
benefits,
Plaintiffs'
claim
DCHRA
in
this
that
its mandatory duty to
issuing
exemptions,
under
alleged
or
and
the
DCHRA
may
advantages,"
of
the
require
licenses,
"permits,
subsection
the
proceed.
6.
Summary
Plaintiffs
DCHRA.
allege
Although
1402.21 (d) (1),
they
claims
may
under
not
six
proceed
subsections
under
section
they have sufficiently pleaded facts
their other five claims.
-53-
of
the
§
2-
to support
D.
Count V: Plaintiffs Have Not Sufficiently Alleged
Claim Under the Homeless Services Reform Act
Defendants
argue
that
Plaintiffs
have
failed
claim under the Homeless Services Reform Act
§
4-751.01 et.
seq.
The HSRA implements a
to
a
state
a
("HSRA 11 ) , D.C. Code
"continuum of care,
11
defined as "the system of services for individuals and families
who are
homeless
designed
to
or at
serve
need.
11
all
providers
Id.
§
imminent
clients
4-751.01(8).
of
risk of becoming homeless
based
on
their
individual
level
and
of
The statute establishes standards for
services
to
the
homeless.
Id.
4-754.21
§
("Section 21 11 ) . The HSRA also requires that the District provide
"shelter
in
additional
severe
standards
shelter. id.
§
1.
The
have
a
weather,
11
id.
required
4-754.22
for
private
first
right
of
argument
action
shall
construed to
to
create
is
under
of the HSRA states that
implied)
providers
of
and
specifies
severe
weather
Columbia Court of Appeals Has
Private Rights of Action Under
755.01(a)
be
4-754.11(5),
("Section 22 11 ) .
The District of
Strictly Limited
the HSRA
District's
§
that
the
HSRA.
do
Section
not
4-
"no provision of this chapter
an entitlement
any services
Plaintiffs
within the
(either direct
Continuum of
or
Care,
other than shelter in severe weather conditions as authorized by
§
4-754.11(5) . 11
Thus,
the
District
-54-
insists
that
Plaintiffs'
claims under the HSRA, other than a claim based on a failure to
provide shelter during severe weather, are precluded.
The
District
of
Columbia
Court
addressed this section of the HSRA.
Columbia,
10
A.3d
1141
(D.C.
of
Appeals
has
directly
In Baltimore v. District of
2011),
former
residents
of
a
homeless shelter brought suit under the HSRA arguing that the
District had failed to conform to the standards identified in
the statute as part of the "Continuum of Care." Id. at 1146-47.
The Court acknowledged that the statute created "standards"
in
Section 21, but concluded that the legislature did not intend to
"create a direct or implied entitlement to any other particular
service"
than the
right
to shelter in severe weather.
Id.
at
1143-44. Consequently, the District is correct that there is no
private right of action available to Plaintiffs other than an
action to enforce the right to shelter in severe weather.
The Hunters attempt to distinguish Baltimore on the ground
that
they are not
seeking any particular service,
but
instead
are seeking to enforce "non-service rights." Opp'n at 29-30 & 30
n.4.
This
distinction
between
service
and
non-service
rights
appears nowhere in the statute, which lists all of the standards
in a single section without distinguishing between services and
non-services.
"non-service
Moreover,
rights,"
it
such
is
unclear
as
-55-
the
how
right
one
would
to
be
protect
free
from
discrimination, without putting them in the context of provision
of services. Indeed, Section 4-754.21(10) does precisely that by
requiring
that
shelters
discrimination
II
"[p]rovide
D.C.
Code
free
services
§
4-754.21(10)
from
(emphasis
added).
The District of Columbia Court of Appeals has interpreted
the scope of private rights of action under the HSRA narrowly,
and this Court is bound by that determination. See In re Sealed
Case (Medical Records), 381 F.3d 1205, 1211 n.5
(noting
that
the
interpretation of
Therefore,
related
District
District
Plaintiffs'
to
the
right
of
of
Columbia
Columbia
Court
law
is
claims under the HSRA,
to
shelter
in
(D.C. Cir. 2004)
severe
of
Appeal's
authoritative).
other than those
weather,
must
be
dismissed. 16
2.
Plaintiffs
Have
Pleaded
a
Not
Sufficiently
Violation of the Right to Shelter in Severe
Weather
The Hunters allege that the District failed to place them
in a
shelter
that
reasonably accommodated A. H. 's
during severe weather conditions.
Code
§
4-754.11(5); see also id.
~~
16
Compl.
~
38, 138
140 (h)
disabilities
(citing D.C.
(alleging that, when
Because the Court dismisses these claims, it need not address
the District's argument that these claims should also be
dismissed because it is not a "provider" under the HSRA. Mot. at
21-23.
-56-
the
Hunters
requested
degrees Fahrenheit);
weather conditions"
shelter,
D.C.
Code
temperatures
4-751.01(35)
§
were
below
(defining
32
"severe
to include when the temperature falls below
32 degrees Fahrenheit) .
The
shelter
Hunters
during
do
not
severe
dispute
weather,
that
but
they
they
were
argue
provided with
that
they
entitled to shelter that complied with the standards set
were
forth
in Section 21 and Section 22. Opp'n at 30. The District responds
that
its
obligation to provide
shelter
in severe weather does
not extend to the provisions of the Continuum of Care in Section
21. Mot. at 23
(citing Baltimore, 10 A.3d at 1150-51).
Section 21 states that providers shall
. disability," D.C.
free from discrimination on the basis of .
Code
Id.
4-754-21(10),
§
and
"[provide
4-754-21(11). However,
§
"[p] rovide services
reasonable
modifications,"
Section 21 is the same section that
the District of Columbia Court of Appeals analyzed in Baltimore
and
found
rights
at
to
be
a
list
of
standards,
rather
to which an individual was entitled.
1151.
Citing both Section 21
court determined that
the word
than
list
Baltimore,
and Section 22,
"standards"
a
of
10 A.3d
the Baltimore
suggested
"norms or
what is acceptable or desirable, not a statutory entitlement."
The
Baltimore
entitlement to
court
concluded
that
there
was
a
"shelter in severe or frigid weather,"
-57-
statutory
id.,
but
it did not identify the contours of that right because it found
that the plaintiffs in that case had failed to allege a denial
of shelter during severe weather conditions.
the declarations did not
reveal
Id.
(noting that
"any specific complaint about
the denial of other shelter during severe weather conditions").
Thus, despite the fact that plaintiffs in that case argued they
were
entitled
to
a
particular
shelter
during
severe
weather
conditions, the court found that the fact that they had received
some shelter was dispositive of their claim.
Similarly,
Plaintiffs in this
case have
failed to allege
that they were not provided with shelter during severe weather.
Therefore,
although
there
is
a
private
right
of
action
for
individuals to enforce their right to shelter in severe weather,
Plaintiffs have failed to sufficiently allege a denial of that
right.
Plaintiffs insist that mere shelter is insufficient - there
must be some substantive content to the right to ensure that the
shelter is
Opp'n
at
"appropriate"
30-31
right would be
(citing
D.C.
Code
that
there
Plaintiffs
are
correct
content
the
right,
to
or the
it
does
not
§
"meaningless."
4-753.01(c) (1)).
must
be
follow
some
that
Although
substantive
such
a
right
encompasses all of the "standards" set out in Section 21 of the
HSRA. As the District correctly points out, this would mean that
-58-
Plaintiffs would have a statutory entitlement to all services in
the Continuum of Care for emergency shelters,
but no statutory
entitlement to services whatsoever in regular shelters.
Given
the
conclude that,
clear
language
of
Baltimore,
as a legal matter,
this
Court
must
individuals are not entitled
to all of the provisions listed in Section 21 as part of their
right
to
shelter
in
severe
weather.
Because
the
District
of
Columbia Court of Appeals has held that the only private right
of action under the HSRA is a right to severe weather shelter,
and Plaintiffs have failed to allege a violation of that right,
their claim must be dismissed.
3.
In
the
Exhaustion of Administrative Remedies
alternative,
COH
argues
that
Plaintiffs'
claims
under the HSRA must be dismissed for failure to exhaust their
administrative
remedies.
It
argues
that
Plaintiffs
failed
to
"exercise their appeal rights under the HSRA relative to their
request
for
comply
with
respite
and,
hence,
Plaintiffs
mechanism
the
care,"
for
relief
provided
"failed
for
by
to
the
HSRA [.]" COH Mot. at 18-19.
The
statutory
language
of
the
HSRA
does
client to appeal a provider's decision. D.C.
not
Code
§
require
a
4-754.41(b)
(stating that "[a] client or client representative may request a
fair
hearing")
(emphasis
added) .
-59-
Rather,
the
HSRA
imposes
a
requirement
on
the
Office
of
Administrative
stating that OAH "shall grant a
Hearings
( "OAH") ,
fair hearing to any client or
client representative who wishes to appeal a decision
who
requests
days
of
Code
§
such a
hearing,
orally or
receiving written notice of
4-754.41 (a)
conclude
that
(emphasis
the
added).
Plaintiffs'
HSRA
in writing,
adverse
Thus,
claims
. and
within
action."
the
Court
should
be
90
D.C.
will
not
dismissed
because they failed to exhaust their administrative remedies.
4.
Summary
Plaintiffs
support
its
have
claim
failed
that
to
its
sufficiently
right
to
allege
shelter
facts
during
to
severe
weather was violated, the only claim under the HSRA for which it
has a private right of action.
E.
Count VI: Plaintiffs Have Not Sufficiently Alleged a
Negligence Claim Against the District of Columbia 17
The elements of a
cause of action for negligence are:
"a
duty of care owed by the defendant to the plaintiff, a breach of
that duty by the defendant,
plaintiff,
and damage to the interests of the
proximately caused by the breach." Woods v.
Dist. of
Columbia, 63 A.3d 551, 553 (D.C. 2013).
17
COH does not argue that the negligence claims against it
should be dismissed. See Answer to Counts VI and VII [Dkt. No.
78] .
-60-
In
Count
negligently
Settlement
Columbia,
fail
breached
and
a
as
a
Plaintiffs
VI,
th e
duties
HSRA .
suit against
matter
relationship"
of
(quoting Warren,
doctrine,
a
owed
a
for
absent
the
576 A.2d 718,
person
719
seeking
duty
to
upon
144. 18
a
the
it
In
"special
District
negligence must
special
fl
11
that
the
by
District
the
DoJ
D1' str1' ct
of
the District alleging negligence will
444 A.2d at 3,
Columbia,
liable
imposed
Comp l .
law
between
allege
4);
(D.C.
to
or
1990)
Id.
Dist.
of
("Under the public duty
the
District
and prove
injured
"special
plaintiff. 19
the
see also Klahr v.
hold
allege
the
and
duty"
that
party,
of
Columbia
the District
greater
than
or
different from any duty which it owed to the general public.").
"The
threshold
for
establishing a
special
very high." Jefferies v. Dist. of Columbia,
33
18
(D.D.C.
2013)
(internal
quotations
and
relationship
917 F.
Supp.
citation
is
2d 10,
omitted).
Plaintiffs also allege that the District is vicariously liable
for the negligence of its contractors and agents in breaching
contractual
duties.
Id.
~ 147.
However,
this
claim cannot
survive because "the mere negligent breach of a contract
is not enough to sustain an action sounding in tort." Curry v.
Bank of Am. Home Loans Servicing, 802 F. Supp. 2d 105, 109
(D.D.C. 2011) (quoting Towers Tenant Ass'n, Inc. v. Towers Ltd.
Partnership, 563 F. Supp. 566, 570 (D.D.C. 1983)). The District
cannot therefore be held vicariously liable for its contractors'
negligent breach of contract.
19
"The terms 'special relationship' and 'special duty' may be
used interchangeably," because "'a special relationship
imposes a special legal duty."' Powell, 602 A.2d at 1127 n.4
(quoting Warren v. Dist. of Columbia, 444 A.2d 1, 3 (D.C. 1981)
(en bane)) .
-61-
"If,
based on reading the Complaint,
applies,
the
Court
under 12 (b) (6)
may appropriately dismiss
for failing to state a claim.
Supp. 2d at 32 (D.D.C. 2013)
There
Jefferies,
are
prove
two
exceptions
to
the
917 F.
public
603-04
duty
doctrine.
two
(D.C. 2008). First, a plaintiff can allege
things:
"((1)
a
direct
or
continuing
[the plaintiff]
and (2)
a justifiable reliance on the part of
720).
claims
(citing Warren, 444 A.2d at 1).
between
Jefferies,
tort
Jefferies,
11
the
917 F. Supp. 2d at 33; Snowder v. Dist. of Columbia,
949 A.2d 590,
and
the public duty doctrine
917
Second,
F.
Supp.
and a governmental agency or official,
2d at 33
regulation
that
prescribes
protection
of
particular
public as a whole.'
11
'mandatory
class
Jefferies,
[the plaintiff] .
(quoting Klahr,
a plaintiff can identify a
a
contact
of
917 F.
11
576 A.2d at
"specific statute or
acts
clearly
for
the
persons
rather
than
the
Supp.
2d at 34
Turner v. Dist. of Columbia, 532 A.2d 662, 667
(quoting
(D.C. 1987)). The
Court will refer to this as the second exception to the public
duty doctrine.
Thus,
for
Plaintiffs'
negligence
claim
to
survive,
they
must sufficiently allege facts to support a conclusion that the
claim falls under one of the two exceptions to the public duty
doctrine.
-62-
1.
First Exception: Contact and Justifiable Reliance
Plaintiffs argue that they have alleged facts sufficient to
support the first exception to the public duty doctrine: namely,
that
they
contact"
have
between
sufficiently
themselves
alleged
and
the
"direct
or
District
of
continuing
Columbia
and
"justifiable reliance." Jefferies, 917 F. Supp. 2d at 33.
To sufficiently allege "contact," Plaintiffs must allege a
"direct
transaction with
the
party
injured or
an arms-length
relationship in which the city's agent is dealing directly,
some
form,
with
the person injured."
Id.
(citing Powell,
A.2d at 1130). Plaintiffs argue that "the District,
in
602
through its
agent contractors, maintained direct and continuing contact with
the Hunter family from the moment Mr.
Hunter sought shelter."
Opp'n at 33. Mr. Hunter's first application for housing, as well
as his multiple requests for accommodations,
"direct
and
personal
transaction[s]"
under District of Columbia precedent.
that
all appear to be
satisfy
Powell,
this
prong
602 A. 2d at 1131
(finding that application and payment of fee to Bureau of Motor
Vehicle
~
Services
Hunter
"contact"
Compl.
shelter at the District's central intake office);
~
41
(alleging
certain
Hunter) ;
by
Center
-63-
placement
also
homeless
made
for
see
a
statements
applied
prong) ;
in
37
(alleging
satisfied
staff
to
~ 78
(alleging
conversation between Hunter and program director at
Girard Street Apartments) .
The District cites Powell for the proposition that "even a
series of contacts over a period of time is not enough absent
some
showing
that
the
agency assumed a
greater duty to
that
person than the duty owed to the public at large." Reply at 16
n.4
(citing Powell,
Columbia
Court
showing
a
of
Appeals
"greater
satisfied
Powell,
602 A.2d at 1130). However, the District of
by
also
duty"
has
clarified
than
requiring
one
proof
602 A.2d at 1131; Snowder,
that
owed
of
the
burden
of
to
the
public
is
justifiable
reliance.
949 A.2d at 604 n.12
(noting
that the two-part inquiry "takes this greater duty factor into
account
have
by
requiring
justifiable
sufficiently alleged
reliance") .
"contact"
with
the
Thus,
Plaintiffs
District
through
its agents. 20
To show "justifiable reliance," Plaintiffs must allege that
the
District
has
"specifically
undertaken
to
protect
a
particular individual and the individual has specifically relied
upon the
13 06,
1315
reliance,"
20
undertaking."
(D.C.
Powell,
Morgan v.
1983) .
It
Dist.
requires
of
Columbia,
"particular
602 A.2d at 1131 n.11,
or
468 A. 2d
special
on some "affirmative
As discussed above, see supra Sec. III.A.4.b, the Hunters have
sufficiently alleged that the District's contractors are its
"agents" to proceed on that theory at this time.
-64-
act[]"
that
condition,"
uactually
Woods,
and
63
directly
A.3d
at
that
they
worsened
554
the
(internal
plaintiff's
quotations
and
relied
the
citation omitted) .
Plaintiffs
argue
justifiably
on
District's uaffirmative obligation" as set forth in Paragraph 24
of its Settlement Agreement with the DoJ. Opp'n at 34. However,
the
Settlement
Agreement
specifically
states
that
it
is
uenforceable only by the parties" and that uno person or entity
may assert
any
claim or right
as
a
beneficiary or protected
~
class" under the Agreement. Settlement Agreement
79-1].
Whatever the
scope of
the District's
37
[Dkt. No.
duties under
the
Settlement Agreement, it is clear that signing the Agreement was
not an uaffirmative act[]" that uactually and directly worsened
the
plaintiff's
condition."
Woods,
63
A.3d
at
554
(internal
their
Complaint
quotations and citation omitted) .
Plaintiffs
identify
no
other
portion
of
that alleges an uaffirmatively negligent act" as compared to a
ufailure
Plaintiffs
reliance,
to
act."
have
and,
Snowder,
failed
thus,
to
949
A. 2d
sufficiently
at
604.
plead
Therefore,
justifiable
have not satisfied the first exception to
the public duty doctrine. See Woods, 63 A.3d at 554
(noting that
District of Columbia Court of Appeals uhas adhered to a strict
interpretation of the special relationship test,
-65-
including the
justifiable
reliance
prong")
(quoting
Taylor
Dist.
v.
of
Columbia, 776 A.2d 1208, 1218 (D.C. 2001)).
2.
In
Second Exception: Statute
the
satisfied
because
alternative,
the
the
second
HSRA
Plaintiffs
exception
is
a
to
specific
argue
the
that
public
statute
they
duty
that
have
doctrine,
"prescribes
mandatory acts clearly for the protection of a particular class
of persons rather than the public as a whole." Jefferies, 917 F.
Supp.
~~
2d at
144-46
34
(quoting Turner,
(alleging
that
HSRA
532 A. 2d at
imposes
667);
particular
see Compl.
duties
upon
Defendants) .
The District of Columbia Court of Appeals stated in Turner
that "if a state agency is required by statute or regulation to
take a particular action for the benefit for a particular class
and fails to do so,
or negligently does so,
and the plaintiffs
justifiably rely to their detriment on the agency's duty to act,
a cause of action in negligence will lie against the state or
its agency." Turner, 532 A.2d at 672.
In
concluded
Turner,
that
certain public
the
the
District
of
Child Abuse
officials
Columbia
Prevention
specific
duties
Court
Act
and
of
Appeals
imposes
"upon
responsibilities
which are intended to protect a narrowly defined and otherwise
helpless class of persons:
abused and neglected children."
-66-
Id.
at
668.
The Child Abuse Prevention Act
officials act
in certain ways
to protect
when officials breach those duties,
class
suffers
in
a
specifies that District
a
special
class,
and
"that statutorily protected
way uniquely different
from
the
public
at
large." Id.
Plaintiffs argue
that
the HSRA imposes
responsibilities on the District
in order to protect
individuals seeking shelter." Opp'n at 34
754.52 (a) (3),
(b)- (d)).
However,
certain duties and
"disabled
(citing D.C. Code § 4-
the District of Columbia Court
of Appeals has concluded that the HSRA does not create legally
enforceable obligations, but merely creates a list of standards.
See
supra
Therefore,
Sec.
III.D.l.
(discussing Baltimore,
10
A.3d
1141).
the HSRA is not a statute that "prescribes mandatory
acts clearly for the protection of a particular class of persons
rather than the public as a whole."
at 34
Jefferies,
917 F.
Supp.
2d
(quoting Turner, 532 A.2d at 667).
The one mandatory act that is prescribed by the HSRA is to
provide
shelter
Plaintiffs
shelter
in
in
failed
severe
severe
to
allege
that
weather.
Id.
sufficiently alleged that
particular
fail [ed]
action
weather.
for
the
See
they
were,
to do so [.]" Turner,
for
a
III.D.2.
fact,
particular
denied
have
required to
532 A. 2d at 672
-67-
in
Sec.
Plaintiffs
Thus,
the District was
benefit
supra
not
"take a
class
and
(emphasis added) .
Consequently,
even this portion of the HSRA cannot provide the
basis for the second exception to the public duty doctrine.
3.
SUilllnary
Plaintiffs
support
have
failed
its negligence
to
sufficiently
claim against
allege
the District,
facts
to
because it
has not demonstrated that either of the exceptions to the public
duty doctrine apply.
Count VII:
Negligence
Colwnbia
F.
Plaintiffs Have Not Sufficiently Alleged a
Per Se Claim Against
the District of
Plaintiffs also allege that Defendants "were negligent per
se
in failing
to meet
their duties and obligations under the
ADA, FHA, Rehabilitation Act, DCHRA, and HSRA." Compl.
However,
separate
negligence
legal
claim
per
se
rather,
is
it
not
in
permits
and
a
of
~
150.
itself
plaintiff
a
under
"certain circumstances and under specified conditions," to "rely
on a statute or regulation as proof of the applicable standard
of
care."
1996)
McNeil
Pharm.
(citation omitted)
v.
Hawkins,
686
A. 2d
567,
578
If the plaintiff can prove that
(D.C.
the
defendant violated such a statute or regulation, it "renders the
defendant negligent
violation
was
the
as a matter of law
proximate
cause
of
so long as
the
injuries,
and
the
the
alleged injuries were of the type which the statute was designed
to prevent." Id.
(internal quotations and citation omitted).
-68-
"The decision to adopt from a statute a standard of care to
be applied in determining common law negligence"
decision for the court to make.
Id.
at 579
is a
judicial
(internal quotations
and citation omitted) . The Court must decide whether the statute
or
regulation
protect
"promote [s]
persons
public
safety
and
[was]
in the plaintiff's position or
type of accident
that occurred."
Id.
(internal
enacted
to prevent
to
the
quotation marks
and citation omitted) .
The
claims
are
District
is
argues
that
discrimination,"
the
and that
"gravamen
the
intended to combat discrimination,
of
statutes
not
Plaintiffs'
they rely on
to prevent physical
harm. Mot. at 26-27. Plaintiffs identify no precedent supporting
their
ADA,
argument
the
FHA,
that
anti-discrimination
the DCHRA,
statutes
such
and the Rehabilitation Act
as
the
should be
considered statutes that "promote public safety."
Although neither party identifies cases evaluating whether
negligence per se should be applied to the FHA,
the
Rehabilitation
instructive.
public
4908,
Multiple
safety
doctrine.
See,
2009
Act,
WL
courts have
statute
e.g.,
cases
for
purposes
McCree v.
166660,
at
Se.
*12
the
addressing
found that
of
the
the DCHRA,
ADA
or
are
the ADA is not a
negligence
Pa.
Transp.
(E.D.
Pa.
Auth.,
Jan.
22,
per
No.
se
07-
2009)
(" [V] iolation of an ADA regulation may not be used as evidence
-69-
of
negligence
per
se
in
a
one."); White v. NCL Am.,
at
*5
(S.D.
designed
injuries,
to
Fla.
Mar.
protect
Plaintiff
negligence.");
Inc.,
8,
those
is
James v.
personal
No.
2006)
with
unable
to
injury
action
05-22030,
("Because
a
the
ADA
from
claim
Peter Pan Transit Mgmt.,
for
Inc.,
747, 1999 WL 735173, at *9
(E.D.N.C. Jan. 20, 1999)
that
'provide
ADA was
"enacted
to
a
clear
this
2006 WL 1042548,
disabilities
state
like
and
was
not
personal
per
No.
se
97-
(concluding
comprehensive
national mandate for the elimination of discrimination against
individuals with disabilities,' and, thus, it was "unlikely that
the North Carolina courts would find that the ADA is a safety
statute or that violation of the ADA constitutes negligence per
se")
(quoting 42 U.S.C.
§
12101(b)); Dalgliesh v. Theatre Mgmt.
Grp., Inc., No. 96- 3985, 1999 WL 638127, at *1 (D.C. Super. May
28, 1999)
("Obviously, it would have been error if the court had
instructed the jury that evidence of the ADA and the applicable
C. F. R.
was
violations constituted negligence per se,
promulgated
to
prevent
discrimination,
since the Act
not
physical
injury.") .
Plaintiffs argue that accommodating the needs of disabled
individuals does have a
"public safety"
the court observed in White,
rationale.
However,
as
"[w]hile protection from injury for
the disabled is no doubt a fortunate by-product of the ADA,
-70-
it
is clear that the statute was not designed with that purpose in
mind[.]"
White,
2006 WL 1042548,
at
concludes
that
the
same
Act,
FHA,
and
the DCHRA from
the
*5.
The Court agrees and
rationale prevents
serving
the
as
Rehabilitation
the
basis
of
a
negligence per se claim as well.
Plaintiffs
argue
that
the
HSRA subsection mandating
that
the District provide shelter during severe weather is a "public
safety"
statute.
They may be correct,
but,
as discussed above,
see supra Sec. III.D.2, Plaintiffs failed to plead a claim under
that
subsection.
Moreover,
in
order
to
adopt
a
particular
. prevent
standard of care, the statute must be "enacted to
the type of accident that occurred[.]" Sibert-Dean v. Washington
Metro. Area Transit Auth., 721 F.3d 699, 702-03
(D.C. Cir. 2013)
(quoting Joy v. Bell Helicopter Textron, Inc., 999 F.2d 549, 557
(D.C.
Cir.
directed
weather.
the
at
The
protecting
relevant
subsection
individuals
from
of
the
exposure
to
HSRA
is
severe
There is no allegation that the injuries suffered by
Hunters
weather.
1993)).
occurred
Therefore,
public safety,"
because
they
were
exposed
to
severe
even if that section of the HSRA "promotes
it still does not support a negligence per se
claim in this case.
-71-
In sum,
Plaintiffs have failed to identify a
statute that
supports its negligence per se claim against the District,
and
this claim must be dismissed.
IV.
CONCLUSION
For the foregoing reasons,
shall
granted
be
portion of
the
Count
portion
1402.21 (d) ( 1) ,
in
II
of
and
part
as
brought
Count
denied
the District's Motion to Dismiss
IV
to
Counts
under
V,
VI,
and
VII,
the
3604 (f) (1),
and
42
U.S.C.
brought
under
D.C.
Code
to
other
arguments;
in part
as
§
all
§
2-
Defendant COR's Motion to Dismiss shall be granted in part as to
Count
V,
the
3604(f) (1),
§
portion
of
Count
II
brought
under
42
U.S.C.
and the portion of Count IV brought under D.C.
Code
2-1402.21(d) (1), and denied in part as to all other arguments.
Gff:iaer I~
August 18, 2014
United States District Judge
Copies to: attorneys on record via ECF
-72-
§
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