Suarez v. Ryans et al

Filing 32

ORDER: Defendants' Motion to Dismiss Plaintiff's Complaint for Declaratory and Injunctive Relief 30 is GRANTED. The claims for a declaratory judgment and injunctive relief are dismissed with prejudice. The claim for monetary damages i s dismissed without prejudice. Plaintiff may file an amended complaint within 14 days. If Plaintiff fails to file an amended complaint, this case shall remain dismissed, and the Court will direct the Clerk to administratively close this case without further notice to the parties. Signed by Judge James S. Moody, Jr on 5/3/2013. (LN)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

MIRIAM SANTOS SUAREZ,
Plaintiff,
v.

Case No. 8:12-cv-2401-T-30MAP

JEROME RYANS, in his official capacity as
Executive Director of the Housing Authority
of the City of Tampa, Florida, et al.,
Defendants.
_____________________________________/

ORDER
THIS CAUSE comes before the Court upon Defendants’, Jerome Ryans and Wence
Cunningham, In Their Official Capacities, Motion to Dismiss Plaintiff’s Complaint for
Declaratory and Injunctive Relief (Dkt. 30) and Plaintiff’s Memorandum in Opposition to
Defendant’s Motion to Dismiss (Dkt. 31). The Court, having reviewed the motion, response,
and being otherwise advised in the premises, concludes the motion to dismiss should be
granted.
BACKGROUND
Plaintiff Miriam Santos Suarez brought this action, entitled “Complaint for
Declaratory and Injunctive Relief,” against Defendants Jerome Ryans and Wence
Cunningham, in their official capacities, for discrimination under the Fair Housing Act
(“FHA”). The complaint is not clear as to the number of counts Suarez intends to allege, but
it is clear that she seeks: (1) a declaratory judgment that “Defendant Cunningham’s failure

and/or refusal to reasonably accommodate [Suarez]’s § 3602(h) handicap violates 42 U.S.C.
§ 3604(f)(2) and § 3604(f)(3)(B);” (2) a temporary and permanent injunction requiring
Defendants “to transfer [Suarez] from [her] present studio apartment to a one-bedroom
apartment where the sleeping area is separate from the kitchen area;” (3) and an award of
actual and punitive damages.
At the time of filing her complaint, Suarez lived in a studio apartment owned and
operated by the Housing Authority of the City of Tampa (“HACT”). Defendant Cunningham
is the HACT Director of Public Housing and Asset Management. Defendant Ryans is the
HACT Executive Director and supervises Cunningham. HACT is not a party to this action.
Suarez alleges that she has a physical respiratory handicap within the meaning of the
FHA. She attaches a letter from Dr. Abel Ochoa that states in pertinent part:
Mrs. Suarez has chronic pulmonary obstructive disease. It is detrimental to her
health to live in an efficiency apartment where the bed is in the same room as
the kitchen because of fumes and chemicals used around the kitchen. Ms.
Suarez must live in a one-bedroom apartment where the sleeping area is in a
separate room from the kitchen.
Dkt. 1-2.
On September 21, 2012, Suarez’s counsel wrote a letter to Defendant Cunningham
requesting that Suarez be moved to a one-bedroom apartment. Cunningham did not respond.
On October 11, 2012, Suarez’s counsel sent another letter to Cunningham repeating the
request for a transfer from her studio apartment to a one-bedroom apartment and informing
Cunningham he would file suit unless Cunningham responded on or before October 17, 2012.
Suarez did not receive a response prior to filing this suit on October 23, 2012.
Page 2 of 7

Defendants were served with process on December 12, 2012. Six days prior to the
hearing on Suarez’s motion for preliminary injunction, HACT offered to move Suarez into
a one-bedroom apartment at another complex known as Shimberg Estates. On December 21,
2012, Suarez moved from her studio apartment to the Shimberg apartment that she agreed
as a reasonable accommodation for her handicap. Thus, Suarez’s motion for preliminary
injunction was denied as moot.
MOTION TO DISMISS STANDARD OF REVIEW
When reviewing a motion to dismiss, a court must accept all factual allegations
contained in the complaint as true, and view the facts in a light most favorable to the plaintiff.
See Erickson v. Pardus, 551 U.S. 89, 93-94 (2007). However, unlike factual allegations,
conclusions in a pleading “are not entitled to the assumption of truth.” Ashcroft v. Iqbal, 556
U.S. 662, 679 (2009). On the contrary, legal conclusions “must be supported by factual
allegations.” Id. Indeed, “conclusory allegations, unwarranted factual deductions or legal
conclusions masquerading as facts will not prevent dismissal.” Davila v. Delta Air Lines,
Inc., 326 F.3d 1183, 1185 (11th Cir. 2003).
While a “heightened fact pleading of specifics” is not required, “enough facts to state
a claim to relief that is plausible on its face” is necessary. Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007). Moreover, when the factual allegations are “not only compatible with,
but indeed [are] more likely explained by” lawful activity, the complaint must be dismissed.
Iqbal, 556 U.S. at 680; see also N.Am. Clearing, Inc. v. Brokerage Computer Sys., Inc., 2009
WL 1513389 (M.D. Fla. May 27, 2009) (“On a Rule 12(b)(6) motion to dismiss, when a
Page 3 of 7

court considers the range of possible interpretations of the defendant’s alleged conduct, if the
‘more likely explanations’ involve lawful, non-actionable behavior, the court should find that
the plaintiff’s claim is not plausible.”).
Federal Rule of Civil Procedure 12(b)(1) allows a complaint to be dismissed based
on a plaintiff’s lack of standing under Article III. Stalley v. Orlando Reg’l Healthcare Sys.,
Inc., 524 F.3d 1229, 1232 (11th Cir. 2008) (“Because standing is jurisdictional, a dismissal
for lack of standing has the same effect as a dismissal for lack of subject matter jurisdiction
under Fed. R. Civ. P. 12(b)(1).”). Federal Rule of Civil Procedure 12(b)(6) allows a
complaint to be dismissed for failure to state a claim upon which relief can be granted. Fed.
R. Civ. P. 12(b)(6).
DISCUSSION
The FHA prohibits discrimination “in the provision of services or facilities in
connection with [a] dwelling, because of a handicap.”

42 U.S.C. § 3604(f)(2).

Discrimination on the basis of a handicap includes “a refusal to make reasonable
accommodations in rules, policies, practices, or services, when such accommodations may
be necessary to afford such person equal opportunity to use and enjoy a dwelling.” 42 U.S.C.
§ 3604(f)(3)(B). The FHA creates a statutory cause of action for a discriminatory housing
practice and authorizes a court to award an aggrieved person actual and punitive damages
and any other relief as the court deems appropriate. 42 U.S.C. § 3613(a)(1)(A) & (c)(1).
“In order to demonstrate that a case or controversy exists to meet the Article III
standing requirement when a plaintiff is seeking injunctive or declaratory relief, a plaintiff
Page 4 of 7

must allege facts from which it appears there is a substantial likelihood that he will suffer
injury in the future.” Malowney v. Fed. Collection Deposit Grp., 193 F.3d 1342, 1346-47
(11th Cir. 1999). Thus, in order for this Court to have jurisdiction to issue a declaratory
judgment that Defendants have violated the FHA or to enjoin Defendants from continuing
to violate the FHA, Suarez must assert a reasonable expectation that the injury she has
suffered will continue or will be repeated in the future. Id. at 1347. Suarez has failed to do
so because her alleged injury, living in a studio apartment instead of a one-bedroom, has
ceased to exist and she does not allege that she will be subject to the same injury in the
future. Thus, Defendants’ motion to dismiss as to Suarez’s claims for declaratory judgment
and permanent injunction is granted.
However, Suarez has standing to bring a cause of action for damages under the FHA.
Suarez’s complaint, although confusing because titled “Complaint for Declaratory and
Injunctive Relief,” does state that she seeks actual and punitive damages for the alleged
discrimination under the FHA.
Defendants also move to dismiss Suarez’s complaint on the grounds that she failed
to comply with the Federal Rules of Civil Procedure by impermissibly grouping all her
counts together. See Anderson v. Dist. Bd. of Trs. of Cent. Fla. Cmty. Coll., 77 F.3d 364, 366
(11th Cir. 1996) (explaining that a “shotgun pleading” makes it “virtually impossible to know
which allegations of fact are intended to support which claim(s) for relief”); Beckwith v.
Bellsouth Telecomms. Inc., 146 Fed. App’x 368, 371 (11th Cir. 2005) (stating that a “shotgun
pleading” is a pleading in which a plaintiff fails “to identify claims with sufficient clarity”).
Page 5 of 7

The Court agrees that it cannot be determined whether Suarez brought a single count of
discrimination under the FHA with requests for multiple relief or whether she brought three
different claims. Suarez states in her complaint that her claims for declaratory and injunctive
relief are authorized by 28 U.S.C. § 2201 and 2202, but then later relies on 42 U.S.C. §
3613(c)(1) as the basis for seeking an injunction and for monetary damages. Additionally,
Suarez does not separate her claims into separate counts, if she even intends to allege
multiple counts. This confusion violates Rule 8(a)’s requirement that a pleading contain “a
short and plain statement of the claim showing that the pleader is entitled to relief.”
Accordingly, Defendants’ motion to dismiss based an a procedurally-defective style of
pleading is granted.
As discussed above, the claims for the first two types of relief are dismissed with
prejudice because the Court lacks jurisdiction to issue an injunction or declaratory judgment.
If Suarez chooses to file an amended complaint, she may include a claim for monetary
damages under the FHA.
It is therefore ORDERED AND ADJUDGED that:
1.

Defendants’, Jerome Ryans and Wence Cunningham, In Their Official
Capacities, Motion to Dismiss Plaintiff’s Complaint for Declaratory and
Injunctive Relief (Dkt. 30) is GRANTED.

2.

The claims for a declaratory judgment and injunctive relief are dismissed with
prejudice. The claim for monetary damages is dismissed without prejudice.

Page 6 of 7

3.

Plaintiff may file an amended complaint within fourteen (14) days of the date
of this Order. If Plaintiff fails to file an amended complaint, this case shall
remain dismissed, and the Court will direct the Clerk to administratively close
this case without further notice to the parties.

DONE and ORDERED in Tampa, Florida on May 3, 2013.

Copies furnished to:
Counsel/Parties of Record
S:\Odd\2012\12-cv-2401.mtdismiss.frm

Page 7 of 7