Butler v. Carrero
Filing
64
OPINION AND ORDER that Plaintiff's 28 Motion to Amend his Complaint to add the HUD Defendants is DENIED. IT IS FURTHER ORDERED that Defendants' 15 Motion to Dismiss is GRANTED. This action is DISMISSED. IT IS FURTHER ORDERED tha t Plaintiff's Motions to Amend his Complaint 23 , 48 , 56 ; Motion to Certify Class 26 ; Motion for Reconsideration 27 ; Motions to Compel Discovery 29 , 46 , 50 ; Motions for Sanctions 30 and Default Judgment 54 ; and Motion for a Mandatory Settlement Conference 43 are DENIED AS MOOT.. Signed by Judge William S. Duffey, Jr on 9/12/2013. (anc)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
TERRY BUTLER,
Plaintiff,
v.
1:12-cv-2743-WSD
MIRIAM CARRERO, CRP
HOLDINGS A-2, SCOTT
PURCELL, HEATHER MARTIN,
TIFFANY MACBETH, and
JACKIE BARBOUR,
Defendants.
OPINION AND ORDER
This matter is before the Court on Defendants Miriam Carrero (“Carrero”),
CRP Holdings A-2 (“CRP Holdings”), Scott Purcell (“Purcell”), Heather Martin
(“Martin”), Tiffany Macbeth (“Macbeth”), and Jackie Barbour’s (“Barbour”)
(collectively, “HPA Defendants”) Motion to Dismiss [15] Plaintiff Terry Butler’s
(“Plaintiff” or “Butler”) Complaint [3] and First Amended Complaint [10]. Also
before the Court are Plaintiff’s Motions to Amend his Complaint [23], [28], [48],
[56]; Motion to Certify Class [26]; and Motion for Reconsideration [27] of the
Court’s January 3, 2013, Order denying Plaintiff’s motion to appoint counsel.
Also before the Court are Plaintiff’s Motions to Compel Discovery [29], [46], [50];
Motions for Sanctions [30] and Default Judgment [54] for Defendants’ alleged
“discovery misconduct;” and “Motion for a Mandatory Settlement Conference”
[43].
I.
BACKGROUND
This is a case alleging discrimination and sexual harassment arising from
Plaintiff’s tenancy at Holland Park Apartments (“HPA”), an apartment complex in
Lawrenceville, Georgia, that is owned and managed by the HPA Defendants.
In September 2010, Plaintiff contacted ProMove, Inc. (“ProMove”), an
apartment locator company, seeking an apartment to rent in Georgia. [28 at 29].
Plaintiff asserts that he told ProMove that he required a ground-floor apartment
due to his mobility disability. [28 at 29]. ProMove contacted HPA, and on
September 12, 2010, Carrero, an HPA Leasing Agent, showed Plaintiff apartment
5102, a ground-floor apartment. [28 at 30, 32].
Before executing a lease agreement, Plaintiff visited HPA again and spoke
with Purcell, the HPA Property Manager, and Barbour, another HPA Leasing
Agent. Plaintiff asserts that Purcell and Barbour “stated to Plaintiff: 1) Can they
pay Plaintiff to read them a bed time [sic] story. 2) Your ie Plaintiff, [sic] voice is
so sexy. 3) I’d pay for more than that.” [10 at 4].
2
On September 27, 2010, Butler executed a lease agreement for apartment
7006 at HPA.1 [31 at 4]. Apartment 7006 is a terrace level apartment that requires
navigating a flight of stairs to access. [Id.].
After moving into the apartment, Plaintiff claims he became upset about the
inaccessibility of his apartment, the noise of the neighboring children, and trash
left outside of his apartment. [10 at 3]. On October 13, 2010, Plaintiff submitted a
complaint to HPA complaining of specific instances involving the noise and the
trash and requesting that he be moved to another apartment. [31 at 13]. Plaintiff
did not complain about the inaccessibility of his apartment.
“Defendants”2 offered to allow Butler to transfer apartments at a cost of
$500, and refused Plaintiff’s request to waive the transfer fee or allow him to pay
the fee in installments. [3 at 4; 10 at 1-2; 48 at 4]. Plaintiff claims that his request
for an accommodation was denied because management became hostile and
discriminatory due to his complaints and rejection of Purcell’s advances. [28 at 13,
37].
1
It is not clear how or why Plaintiff agreed to rent apartment 7006 instead of
5102. It appears that Purcell or Barbour at some point showed Plaintiff additional
apartments available for rent at HPA, including unit 7006.
2
Plaintiff refers generally to “Defendants” throughout his filings and often
fails to identify which defendant committed what allegedly wrongful conduct.
3
On November 5, 2010,3 Plaintiff sent to “Laramar Inc., Corporate
Office/Holland Park mgr. [sic]” a letter complaining about the noise, trash, and
safety of his apartment and requesting to terminate his lease and to use his security
deposit to cover the remainder of the lease. [31 at 15-16].4 Plaintiff also
commended Carrero’s efforts to remedy his problems with the noise and trash. [Id.
at 16]. Plaintiff again did not mention the inaccessibility of his apartment.
Plaintiff did not pay rent for the month of November or tender the remaining
one-third of his security deposit. On November 8, 2010, Laramar Management
Services (“Laramar”), HPA’s management company, filed on behalf of HPA a
dispossessory action against Butler in the Magistrate Court of Gwinnett County
(the “Dispossessory Action”). [15.6; 28 at 13].5
3
Plaintiff’s letter is dated October 25, 2010, but was signed by Plaintiff on
November 5, 2010.
4
Plaintiff’s lease agreement states that “no portion of the Security Deposit
may be applied to rent due and payable under the Lease . . . .” [31 at 5]. The Early
Termination provisions in the lease agreement require that the renter (1) pay all
monies due, (2) give 60 days notice, (3) pay all rent through the notice period, (4)
pay an additional early termination fee, and (5) forfeit any security deposit.
[Id. at 7].
5
Laramar Management Services as agent for Holland Park Apartments v.
Terry Butler, No. 10m40218. The Court may consider the copies of the documents
in the Dispossessory Action and the subsequent State Court Action attached to
Defendants’ Motion to Dismiss because these documents are central to Plaintiff’s
claims and Plaintiff does not challenge their authenticity. See, e.g., SFM
Holdings, Ltd. v. Banc of Am. Secs., LLC, 600 F.3d 1334, 1337 (11th Cir. 2010);
see also Harris v. Ivax Corp., 182 F.3d 799, 802 n.2 (11th Cir. 1999) (“[A]
4
On November 19, 2010, Butler filed his answer in the Dispossessory Action
and asserted a counterclaim against CRP Holdings and Macbeth for “emergency
nuisance violations, violations of ‘Article V’ of the City of Lawrencevilles [sic]
Property Laws and Ordinances,” breach of rental agreement, breach of contract,
breach of fiduciary duty, “failure to repair requested repairs/complaints,” fraud,
harassment, “tenant abuse” and discrimination. [15.6 at 16-25].
On December 1, 2010, after conducting a hearing, the Magistrate Court
issued a writ of possession to Laramar and denied Butler’s counterclaims in the
Dispossessory Action. [Id. at 3].
On January 27, 2011, Butler filed a complaint with the U.S. Department of
Housing and Urban Development (“HUD”) alleging housing discrimination
against CRP Holdings under the Fair Housing Act (“FHA”), 42 U.S.C. § 3601 et
seq. [31 at 22]. HUD referred the complaint to the Georgia Commission on Equal
Opportunity (“GCEO”) for investigation. [Id. at 22]. Butler amended his
complaint twice, once to add “handicap” to the reasons for discrimination in his
complaint, and once to add defendants Carrero, Barbour, Macbeth, and Martin, an
HPA Property Accountant. [Id. at 39]. On May 9, 2012, the complaint was
reactivated by HUD due to GCEO’s failure to investigate the complaint in a timely
document central to the complaint that the defense appends to its motion to dismiss
is also properly considered, provided that its contents are not in dispute.”).
5
manner. [Id. at 26], see also 24 C.F.R. 115.207(b). On July 26, 2012, HUD issued
its findings that there was no reasonable cause to believe that violations of the
FHA had occurred. [Id. at 47].
On March 4, 2011, Plaintiff filed in the State Court of Gwinnett County an
action against Laramar and CRP Holdings asserting claims for breach of implied
warranty of habitability, misrepresentation in advertising and sales promotion,
strict liability negligence, breach of warranty, and wrongful withholding of
security deposit (the “State Court Action”). [15.8 at 2]. On September 8, 2011,
the court granted summary judgment for Laramar and CRP Holdings on the basis
that Plaintiff’s claims should have been brought as compulsory counterclaims in
the dispossessory action. [Id. at 3].
On August 8, 2012, Plaintiff initiated this action by submitting an
Application to Proceed in District Court without Prepaying Fees or Costs [1]. On
September 5, 2012, Magistrate Judge Walter E. Johnson found that Plaintiff met
the financial requirements for in forma pauperis (“IFP”) status, granted his request
to proceed IFP pursuant to 28 U.S.C. § 1915(a), and Plaintiff’s Complaint was
submitted to this Court for a frivolity determination [2].
6
In his original pro se Complaint, Plaintiff asserted claims under the FHA and
Title III of the Americans with Disabilities Act6 (“ADA”) against Carrero alleging
that she discriminated against him by denying his requests for a ground-level
apartment because of his mobility disability.
On September 7, 2012, the Court found Plaintiff had alleged sufficient facts
in his Complaint to proceed on his FHA and ADA claims against Carrero, ordered
that Plaintiff complete and return service forms, and that service be made by the
United States Marshal Service. [4].
On October 9, 2012, Plaintiff filed his First Amended Complaint [10], as
permitted by Federal Rule of Civil Procedure 15(a)(1), adding CRP Holdings,
Purcell, Martin, Macbeth and Jackie Barbour as defendants, as well as additional
claims for sexual harassment under the FHA.
On October 9, 2012, Plaintiff also filed his Motion for Appointment of
Counsel [11], which the Court denied on January 3, 2013 [25].
On October 30, 2012, the HPA Defendants moved to dismiss Plaintiff’s
Complaint and First Amended Complaint [15].
6
The Court liberally construed Plaintiff’s references to Title III of the Civil
Rights Act of 1968 as alleging a violation of Title III of the ADA because Plaintiff
has alleged disability-based discrimination in the two counts of his Complaint.
The Court notes that the FHA is also known as Title VIII of Civil Rights Act of
1964.
7
On December 14, 2012, Plaintiff filed an amended complaint [23]. Because
Plaintiff did not receive the Court’s leave or written consent from the HPA
Defendants to file an amended complaint, the Court ordered the Clerk of Court to
correct the docket to construe Plaintiff’s filing as a motion for leave to amend.
On February 2, 2013, Plaintiff again moved to amend his complaint, seeking
to as defendants Shaun Donovan, Secretary of HUD, Carlos Asegueda, the Office
of Fair Housing and Equal Opportunity (FHEO) Region IV Director, and Bonita
Stanton-Galbreath, HUD investigator (collectively, “HUD Defendants”). [28].
Plaintiff asserts that the HUD Defendants violated 42 U.S.C. § 1983 and 42 U.S.C.
§ 3610(g)(1) during the investigation of his HUD complaint.7
On April 15, July 15, and July 26, 2013, Plaintiff moved to amend his
complaint to add Dan Dretler (“Dretler”), Vice President of CRP Holdings, as a
defendant. [48; 56; 58].
Construing his pro se filings liberally and as a whole, Plaintiff appears to
assert claims for discrimination and sexual harassment under the FHA, violations
of the ADA and Section 504 of the Rehabilitation Act, 29 U.S.C. § 794, and state
law claims for breach of implied warranty, breach of contract, constructive
42 U.S.C. § 3610(g)(1) requires, among others, that the Secretary of HUD
notify a complainant of his reasonable cause decision within 100 days of the filing
of a complaint.
7
8
eviction, breach of warranty of quiet possession, breach of implied covenant of
good faith and fair dealing, wrongful eviction, fraud and negligent
misrepresentation.
The Court first considers Plaintiff’s motion to amend his complaint to add
the HUD Defendants as defendants in this action.
II.
DISCUSSION
A.
Plaintiff’s Motion to Add the HUD Defendants
Rule 20 specifies who may be joined as defendants in a particular case, and
states that:
Persons . . . may be joined in one action as defendants if: (A) any
right to relief is asserted against them jointly, severally, or in the
alternative with respect to or arising out of the same transaction,
occurrence, or series of transactions or occurrences; and (B) any
question of law or fact common to all defendants will arise in the
action.
Fed. R. Civ. P. 20(a).
The Court finds that the HUD Defendants are not proper parties to be joined
as defendants in this action. This case involves alleged discrimination and
harassment by the HPA Defendants that occurred from September to December
2010, while Plaintiff lived at HPA. Plaintiff’s proposed claims against the HUD
Defendants arise from the investigation by HUD and GCEO, from January 27,
2011 to July 26, 2012, of Plaintiff’s allegations against the HPA Defendants.
9
Plaintiff’s proposed claims against the HUD Defendants do not arise out of the
same transaction or occurrence as his claims against the HPA Defendants. Plaintiff
does not assert, and the facts do not support, that the HUD Defendants and the
HPA Defendants are jointly or severally liable to Plaintiff, and Plaintiff fails to
show that questions of law or fact common to the all defendants will arise in this
action. Simply put, Plaintiff’s proposed claims against the HUD Defendants are
separate and discrete issues unrelated to Plaintiff’s assertions against the HPA
Defendants in this action.8 Plaintiff’s Motion to Amend to Add the HUD
Defendants [28] is required to be denied.9
B.
HPA Defendants’ Motion to Dismiss for Failure to State a Claim
1.
Legal Standard
The law governing motions to dismiss pursuant to Rule 12(b)(6) is wellsettled. Dismissal of a complaint is appropriate “when, on the basis of a
dispositive issue of law, no construction of the factual allegations will support the
8
That the three additional “amendments” to Plaintiff’s complaint filed after
he moved to add the HUD Defendants do not include any assertions against the
HUD Defendants, and that Plaintiff failed even to include their names in the case
style on the subsequently-filed documents, support that Plaintiff’s claims against
the HUD Defendants are not related to the claims asserted against the HPA
Defendants.
9
Because the Court finds that the HUD Defendants are not proper parties to
be joined as defendants in this action, the Court does not consider whether leave
should be granted to allow Plaintiff’s proposed amendment under Rule 15 of the
Federal Rules of Civil Procedure.
10
cause of action.” Marshall Cnty. Bd. of Educ. v. Marshall Cnty. Gas Dist.,
992 F.2d 1171, 1174 (11th Cir. 1993).
In considering a motion to dismiss, the Court accepts the plaintiff’s
allegations as true and considers the allegations in the complaint in the light most
favorable to the plaintiff. See Hishon v. King & Spalding, 467 U.S. 69, 73 (1984);
Watts v. Fla. Int’l Univ., 495 F.3d 1289, 1295 (11th Cir. 2007); see also Bryant v.
Avado Brands, Inc., 187 F.3d 1271, 1273 n.1 (11th Cir. 1999) (“At the motion to
dismiss stage, all well-pleaded facts are accepted as true, and the reasonable
inferences therefrom are construed in the light most favorable to the plaintiff.”).
The Court, however, is not required to accept a plaintiff’s legal conclusions. See
Sinaltrainal v. Coca-Cola Co., 578 F.3d 1252, 1260 (11th Cir. 2009) (citing
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)), abrogated on other grounds by
Mohamad v. Palestinian Auth., 132 S. Ct. 1702 (2012). Nor will the Court “accept
as true a legal conclusion couched as a factual allegation.” See Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007). Ultimately, the complaint is required to
contain “enough facts to state a claim to relief that is plausible on its face.”
Twombly, 550 U.S. at 570.10
10
The Supreme Court explicitly rejected its earlier formulation for the Rule
12(b)(6) pleading standard: “‘[T]he accepted rule [is] that a complaint should not
be dismissed for failure to state a claim unless it appears beyond doubt that the
11
To state a claim to relief that is plausible, the plaintiff must plead factual
content that “allows the Court to draw the reasonable inference that the defendant
is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. “Plausibility”
requires more than a “sheer possibility that a defendant has acted unlawfully,” and
a complaint that alleges facts that are “merely consistent with” liability “stops
short of the line between possibility and plausibility of ‘entitlement to relief.’” Id.
(citing Twombly, 550 U.S. at 557). “To survive a motion to dismiss, plaintiffs
must do more than merely state legal conclusions; they are required to allege some
specific factual bases for those conclusions or face dismissal of their claims.”
Jackson v. BellSouth Telecomms., 372 F.3d 1250, 1263 (11th Cir. 2004)
(“[C]onclusory allegations, unwarranted deductions of facts or legal conclusions
masquerading as facts will not prevent dismissal.”) (citations omitted).11
Complaints filed pro se are to be liberally construed and are “held to less
stringent standards than formal pleadings drafted by lawyers.” Erickson v.
plaintiff can prove no set of facts in support of his claim which would entitle him
to relief.’” Twombly, 550 U.S. at 577 (quoting Conley v. Gibson, 355 U.S. 41,
45-46 (1957)). The Court decided that “this famous observation has earned its
retirement.” Id. at 563.
11
Federal Rule of Civil Procedure 8(a)(2) requires the plaintiff to state “a short
and plain statement of the claim showing that the pleader is entitled to relief.” Fed.
R. Civ. P. 8(a)(2). In Twombly, the Supreme Court recognized the liberal minimal
standards imposed by Federal Rule 8(a)(2) but also acknowledged that “[f]actual
allegations must be enough to raise a right to relief above the speculative
level . . . .” Twombly, 550 U.S. at 555.
12
Pardus, 551 U.S. 89, 94 (2007) (citations and internal quotation marks omitted).
Nevertheless, a pro se plaintiff must comply with the threshold requirements of
the Federal Rules of Civil Procedure. “Even though a pro se complaint should be
construed liberally, a pro se complaint still must state a claim upon which the
Court can grant relief.” Grigsby v. Thomas, 506 F. Supp. 2d 26, 28 (D.D.C.
2007). “[A] district court does not have license to rewrite a deficient pleading.”
Osahar v. U.S. Postal Serv., 297 F. App’x 863, 864 (11th Cir. 2008).
2.
Analysis
a.
Discrimination under the Fair Housing Act
The FHA prohibits discrimination, on the basis of a disability, in the sale or
rental of housing. See 42 U.S.C. § 3604(f). Discrimination prohibited by the FHA
includes the refusal to make reasonable accommodations in the “rules, policies,
practices, or services, when such accommodations may be necessary to afford [the
handicapped individual an] equal opportunity to use and enjoy a dwelling.”
42 U.S.C. § 3604(f)(3)(B). Specifically, a landlord is liable under the FHA if it
“[1] refus[es] to make [2] reasonable accommodations in rules, policies, practices,
or services, when such accommodations [3] may be necessary to afford [a
handicapped] person equal opportunity to use and enjoy a dwelling[.]” Schwarz v.
13
City of Treasure Island, 544 F.3d 1201, 1218–19 (11th Cir. 2008) (first, third,
fourth, and sixth alterations in original) (quoting 42 U.S.C. § 3604(f)(3)(B)).
Plaintiff asserts that the HPA Defendants “denied his request to transfer to
an accessible apartment unit to accommodate his housing disability needs” and
“attempted to charge a special fee for accommodations to the disable [sic] Plaintiff
in the amount of $500.” [3 at 4; 10 at 1-2].
On October 12, 2013, Plaintiff sent to “Holland Park Staff in charge” his
“Formal Complaint,” which states:
Dear Staff,
In the short time I have lived here from day one I have been made
very uncountable [sic] with the noise of kids running up and down the
stairs. The trash has also caused a very nasty environment by the kids
playing below my window and has become like a new dump. Please
move me to another apartment.
[31 at 13]. Plaintiff also states in his letter that “kids above the stairs was [sic]
eating candy and tossing the rapper’s [sic] on the ground,” and that “some-one
[sic] threw a full-soda [sic] can at [his] door.” [Id.].
On November 5, 2010, Plaintiff sent to “Laramar Inc., Corporate
Office/Holland Park mgr. [sic]” his “Complaint and 60 Day Notice to Quit,” which
states:
I have been seriously bother [sic] by the noise, abuse, and outrageous
answers and treatment I get for complaining about the problems.
14
Every day the kids where I live run from the 3rd floor to the bottom
floor stomping as hard as they can on the stairs. The kids also throw
trash from the 3rd floor to the bottom making the place look like
garbage site. I did say please do not do that and that night some [sic]
threw a soda can full of soda against my door and ran. I told
management and was told that if I wanted to move to another
apartment it would cost $500.00 dollars. Now I feel that I should not
have to pay for what I was told would be a clean, quiet and safe place
to live. I feel by telling me this I have been taken advantage of and
Holland Park has misrepresented what this company. [sic] . . .
I also would like to let corporate know that my leasing specialist, ie
[sic] Mrs. Miriam Carrero did a great job in attempting to correct the
problem I have been having here at Holland Park, but I have made up
my mind to give my 60 day notice and move.
[31 at 15-16].
Plaintiff does not allege, and the documents he submitted do not support,
that Plaintiff told the HPA Defendants at the time he made the request that he
wanted to change apartments because of his mobility disability. Rather, Plaintiff
stated that he wanted to change apartments because of problems with his
neighbors, noise and trash.12 That the HPA Defendants, unaware that Plaintiff was
12
See Griffin Indus., Inc. v. Irvin, 496 F.3d 1189, 1206 (11th Cir. 2007) (“Our
duty to accept the facts in the complaint as true does not require us to ignore
specific factual details of the pleading in favor of general or conclusory allegations.
Indeed, when the exhibits contradict the general and conclusory allegations of the
pleading, the exhibits govern.”); Assoc. Builders, Inc. v. Ala. Power Co., 505 F.2d
97, 100 (5th Cir. 1974) (“Conclusory allegations and unwarranted deductions of
fact are not admitted as true, especially when such conclusions are contradicted by
facts disclosed by a document appended to the complaint. If the appended
15
requesting an accommodation because of his disability, told Plaintiff that there was
a $500 charge to change apartments is not sufficient to support an FHA claim. See
Schwartz, 544 F.3d at 1219 (“Simply put, a plaintiff must actually request an
accommodation and be refused in order to bring a reasonable accommodation
claim under the FHA.”); Hawn v. Shoreline Towers Phase 1 Condo. Ass’n Inc.,
347 F. App’x 464, 468 (11th Cir. 2009) (Plaintiff’s letter with unclear explanations
to the nature and extent of his disability and inconsistent reasons for requesting an
accommodation did not inform defendant of the necessity of the accommodation);
Colon-Jimenez v. GR Mgmt. Corp., 218 F. App’x 2, 3 (1st Cir. 2007) (“A routine
or ‘mundane’ request, such as a request to transfer to a different apartment, does
not rise to the level of a request for a reasonable accommodation unless the
plaintiff specifically explains ‘how the accommodation requested is linked to some
disability.’”). Plaintiff fails to allege facts sufficient to support a claim for
discrimination under the FHA and this claim is required to be dismissed.
b.
Sexual Harassment under the Fair Housing Act
Section 818 of the Fair Housing Act, 42 U.S.C. § 3617, provides:
It shall be unlawful to coerce, intimidate, threaten, or interfere with
any person in the exercise or enjoyment of, or on account of his
having exercised or enjoyed, or on account of his having aided or
document . . . reveals facts which foreclose recovery as a matter of law, dismissal
is appropriate.”).
16
encouraged any other person in the exercise or enjoyment of, any right
granted or protected by section 3603, 3604, 3605, or 3606 of this title.
42 U.S.C. § 3617. Section 3604 prohibits, among others, discrimination on the
basis of sex in the rental of housing. 41 U.S.C. § 3604.
Plaintiff asserts that “Defendant’s [sic] stated to Plaintiff: 1) Can they pay
Plaintiff to read them a bed time [sic] story. 2) Your ie Plaintiff, [sic] voice is so
sexy. 3) I’d pay for more than that.” [10 at 4]. Plaintiff conclusorily asserts that
“[t]he statements are clearly sexual in nature and inappropriate; for a [disability
housing person] to have to be subjected to unwelcome sexual advances is a
Violation Under Section 818 of the Fair Housing Act.” [Id.].
It is well-established that annoying or offensive conduct “does not involve
the type of serious, persistent, and explicitly humiliating or threatening conduct
that is actionable as sexual harassment,” Tagliaferri v. Winter Park Hous. Auth.,
486 F. App’x 771, 774 (11th Cir. 2012), and that “simple teasing, offhand
comments, and isolated incidents (unless extremely serious)” are not sufficient to
support a claim for sexual harassment, Faragher v. City of Boca Raton, 524 U.S.
775, 788 (1998).13 “Sexual harassment constitutes sex discrimination only when
13
In sexual harassment cases under the FHA, courts often rely on sexual
harassment cases arising under Title VII of the Civil Rights Act, 42 U.S.C.
§§ 2000e et seq., because the conduct at issue in the housing setting is similar to
that in the working environment and similar interests are subject to legal protection
17
the harassment alters the terms or conditions of” the activity protected by the
statute. Mendoza v. Borden, Inc., 195 F.3d 1238, 1245 (11th Cir. 1999)
(discrimination alleged under Title VII). Here, Purcell and Barbour’s statements
were, at most, arguably sexual in nature and the alleged harassment occurred once.
While their statements may have been uncouth, Plaintiff fails to allege conduct that
is “sufficiently severe and pervasive” to support a claim of sexual harassment. See
DiCenso v. Cisneros, 95 F.3d 1004 (7th Cir. 1996) (single incident of landlord’s
sexual harassment of tenant—vaguely inviting tenant to exchange sex for rent,
while caressing tenant’s arm and back—did not support claim for sexual
harassment); cf. Mendoza, 195 F.3d at 1247 (in Title VII action, supervisor’s acts
of rubbing his hip against plaintiff’s hip while touching her shoulder and smiling,
looking at her groin area while making a sniffing sound, and “constantly” staring
and following her, over an eleven-month period were not sufficiently severe and
pervasive); Henderson v. Waffle House, Inc., 238 F. App’x 499, 502 (11th Cir.
2007) (in Title VII action, even if calling plaintiff “Dolly,” commenting that he
would get in trouble if he said why plaintiff’s presence made him nervous, and
under both acts. See, e.g., DiCenso v. Cisneros, 96 F.3d 1004 (7th Cir. 1996); cf.
Tagliaferri, 486 F. App’x 771 (applying Title VII sexual harassment standards to
sexual harassment claim under FHA, where parties agreed that sexual harassment
under the FHA must be “sufficiently severe and pervasive” as in employment
discrimination actions).
18
pulling plaintiff’s hair were sexual in nature, the incidents did not rise to the level
of “sufficiently severe and pervasive”).14
To the extent Plaintiff also alleges a claim for “quid pro quo” sexual
harassment under the FHA, Plaintiff fails to show that the HPA Defendants
conditioned his occupancy on compliance with their alleged sexual advances or
that he would have been offered an entry-level apartment only if he had consented
to Purcell’s and Barbour’s alleged sexual advances. Tagliaferri, 486 F. App’x at
774 (plaintiffs’ assertion that their lease was not renewed because of previous
sexual relationships with maintenance man did not state a claim for quid pro quo
harassment under FHA; plaintiffs did not allege that their lease would have been
renewed had they consented to unwelcome sexual advances); Honce v. Vigil,
1 F.3d 1085 (10th Cir. 1993) (tenant failed to state a claim for sexual harassment
under FHA where landlord did not refuse to rent mobile home to plaintiff or evict
any other tenants when they rejected his alleged sexual advances); Grieger v.
14
Plaintiff also asserts in his Response that Purcell “went out of his way to
speak to Plaintiff and be noticed,” that he “yelled out at Plaintiff, ‘Ok!! See you
soon!! Ok! Take care!!,” and that he told Plaintiff that he “should come in the
office on Saturday because it will not be [sic] so many people here, and plus the
[rental] application will take a couple of hours to fill out.” [16 at 7-9]. To the
extent Plaintiff alleges that Purcell was “inappropriately and sexually coming on to
him” and show that Purcell’s “plan was to be alone with Plaintiff in a sexual
manner,” these statements do not involve conduct of a sexual nature and are not
sufficient to support a claim for sexual harassment under the FHA.
19
Sheets, 689 F. Supp. 835 (N.D. Ill. 1988) (tenant stated a claim for sexual
harassment under FHA where landlord allegedly demanded sexual favors from
tenant and told her compliance was a condition of continued tenancy; when tenant
refused, landlord harassed tenant by refusing to repair house, damaging the
property, threatening not to renew lease and forcing tenant to give up dog).
Plaintiff does not allege facts sufficient to support that the HPA Defendants
coerced, intimidated, threatened, or interfered with Plaintiff’s rights under the
FHA. See 42 U.S.C. § 3617; Sporn v. Ocean Colony Condo. Ass’n, F. Supp. 2d
244, 251 (D. N.J. 2011) (“Section 3617 does not, however, purport to impose a
code of civility on those dealing with individuals who have exercised their FHA
rights.”); cf. Mendoza, 195 F.3d at 1245 (“Although Title VII’s prohibition of sex
discrimination clearly includes sexual harassment, Title VII is not a federal
‘civility code.’”). Plaintiff fails to state a claim for sexual harassment under the
FHA and this claim is required to be dismissed.
c.
Violations of the ADA and the Rehabilitation Act
The ADA does not apply to residential facilities such as apartments. See
Regents of Mercersburg College v. Republic Franklin Ins. Co., 458 F.3d 159, 165
(3rd Cir. 2006) (“residential facilities such as apartments and condominiums are
. . . not subject to ADA compliance”); Indep. Hous. Servs. of S.F. v. Fillmore Ctr.
20
Assocs., 840 F. Supp. 1328, 1344 (N.D. Cal. 1993) (“apartments and
condominiums do not constitute public accommodations within the meaning of the
Act”). Holland Park is an apartment complex and the ADA therefore does not
apply. Plaintiff has not, and cannot, state a claim against the HPA Defendants for
violation of the ADA. This claim is required to be dismissed.
To the extent Plaintiff alleges a claim under Section 504 of the
Rehabilitation Act, 29 U.S.C. § 794, Plaintiff does not allege that Holland Park is a
program or activity receiving federal financial assistance. See 29 U.S.C. § 794
(prohibiting discrimination on the basis of a person’s disability in “any program or
activity receiving Federal financial assistance or under any program or activity
conducted by any Executive agency or by the United States Postal Service.”).
Plaintiff fails to state a claim for relief under Section 504 of the Rehabilitation Act
and this claim also is required to be dismissed.
d.
State law claims
Plaintiff appears to assert claims under Georgia law for breach of implied
warranty, breach of contract, constructive eviction, breach of warranty of quiet
possession, breach of implied covenant of good faith and fair dealing, wrongful
eviction, fraud and negligent misrepresentation. The Court has dismissed
Plaintiff’s federal claims. “A district court may decline to exercise supplemental
21
jurisdiction over a [state law] claim . . . if . . . the district court has dismissed all
claims over which it has original jurisdiction . . . .” 28 U.S.C. § 1367(c)(3). “The
decision on [whether to retain jurisdiction over the state-law claims] should be and
is vested in the sound discretion of the district court.” Rowe v. City of Fort
Lauderdale, 279 F.3d 1271, 1288 (11th Cir. 2002). See generally United Mine
Workers of Am. v. Gibbs, 383 U.S. 715, 726 (1966) (“Certainly, if the federal
claims are dismissed before trial, even though not insubstantial in a jurisdictional
sense, the state claims should be dismissed as well.”). The Eleventh Circuit has
“encouraged district courts to dismiss any remaining state claims when . . . the
federal claims have been dismissed prior to trial.” Raney v. Allstate Ins. Co., 370
F.3d 1086, 1089 (11th Cir. 2004) (per curiam) (citing L.A. Draper & Son v.
Wheelabrator–Frye, Inc., 735 F.2d 414, 428 (11th Cir.1984)). The Court declines
to exercise supplemental jurisdiction over Plaintiff’s remaining state law claims
and these claims are dismissed without prejudice.15, 16
15
The Court has determined that Plaintiff fails to allege facts sufficient to
support a viable federal claim and has declined to exercise supplemental
jurisdiction over Plaintiff’s remaining state law claims. The Court need not, and
does not, address the HPA Defendant’s other arguments for dismissal based on res
judicata, insufficient process and insufficient service of process.
16
Plaintiff seeks to add Dretler as a defendant in this action and to assert
claims for violation of the FHA, ADA, and Rehabilitation Act against him based
on the same conclusory assertions Plaintiff makes against the HPA Defendants.
The Court has found that Plaintiff fails to allege facts sufficient to support his
22
III.
CONCLUSION
For the foregoing reasons,
IT IS HEREBY ORDERED that Plaintiff’s Motion to Amend his
Complaint [28] to add the HUD Defendants is DENIED.
IT IS FURTHER ORDERED that Defendants’ Motion to Dismiss [15] is
GRANTED. This action is DISMISSED.
IT IS FURTHER ORDERED that Plaintiff’s Motions to Amend his
Complaint [23], [48], [56]; Motion to Certify Class [26]; Motion for
Reconsideration [27]; Motions to Compel Discovery [29], [46], [50]; Motions for
Sanctions [30] and Default Judgment [54]; and “Motion for a Mandatory
Settlement Conference” [43] are DENIED AS MOOT.
claims for violation of the FHA, and that Plaintiff has not, and cannot, assert a
viable claim under the ADA or Rehabilitation Act. Plaintiff’s proposed
amendment seeking to assert these claims against Dretler fails to allege any
additional facts to support his claims. Plaintiff’s Motions to Amend to Add Dretler
as a Defendant [48, 56] are denied as futile. See, e.g., Forbus v. Sears Roebuck &
Co., 30 F.3d 1402, 1405 (11th Cir. 1994) (“District Courts have broad discretion to
grant or deny leave to amend. In the absence of undue delay, bad faith, dilatory
motive or undue prejudice, leave to amend is routinely granted.”) (citing Foman v.
Davis, 371 U.S. 178, 182 (1962)); Hall v. United Ins. Co. of Am., 367 F.3d 1255,
1262-63 (11th Cir. 2004) (“[A] district court may properly deny leave to amend the
complaint under Rule 15(a) when such amendment would be futile. . . . [D]enial of
leave to amend is justified by futility when the complaint as amended is still
subject to dismissal.”). Because the Court concludes that Plaintiff’s proposed
amendments would be futile, the Court does not consider whether Dretler would be
properly joined as a defendant in this action.
23
SO ORDERED this 12th day of September, 2013.
24
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?