Hicks et al v. Makaha Valley Plantation Homeowners Assn. et al
Filing
38
ORDER GRANTING DEFENDANTS' MOTION FOR DISMISSAL OF ALL CLAIMS AGAINST DEFENDANTS MAKAHA VALLEY PLANTATION HOMEOWNERS ASSOCIATION AND HAWAII FIRST, INC. (ECF No. 28 ) WITH LEAVE TO AMEND. Signed by JUDGE HELEN GILLMOR on 1/23/2015. ~ Defendants' Motion to Dismiss (ECF No. 28) is GRANTED WITH LEAVE TO AMEND. Plaintiffs may file an Amended Complaint by Friday, March 6, 2015. Plaintiffs are given leave to amend to add sufficient allegations to state a claim for: Violati on of the Fair Housing Act and the Hawaii Discrimination in Real Property Transactions Act based on race discrimination; and Violation of the Fair Housing Act and the Hawaii Discrimination in Real Property Transactions Act based on disability discri mination for failure to provide a reasonable accommodation. The Amended Complaint must conform to the rulings contained in this Order. Failure to file an Amended Complaint consistent with this Order by Friday, March 6, 2015, will result in dismissal of the entire matter. (ecs, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
CHARLES A. HICKS; DENEEN HICKS; )
STACY HICKS,
)
)
Plaintiffs,
)
)
)
vs.
)
)
)
)
MAKAHA VALLEY PLANTATION
HOMEOWNERS ASSOCIATION; HAWAII )
)
FIRST, INC.,
)
)
Defendants.
CIV. NO. 14-00254 HG-BMK
ORDER GRANTING DEFENDANTS’ MOTION FOR DISMISSAL OF ALL CLAIMS
AGAINST DEFENDANTS MAKAHA VALLEY PLANTATION HOMEOWNERS
ASSOCIATION AND HAWAII FIRST, INC. (ECF No. 28) WITH LEAVE TO
AMEND
Plaintiffs Charles A. Hicks, Deneen Hicks, and Stacy Hicks,
proceeding pro se, complain that Defendants Makaha Valley
Plantation Homeowners Association and Hawaii First, Inc.
discriminated against them.
They claim discrimination based on
their race, African-American, and Mr. Hicks’ disability, in
violation of the Fair Housing Act and the Hawaii Discrimination
in Real Property Transactions Act.
Defendants are the homeowners
association and the management company for Makaha Valley
Plantation condominiums where Plaintiffs resided.
1
Defendants move to dismiss for failure to state a claim.
Defendants’ Motion for Dismissal (ECF No. 28) is GRANTED WITH
LEAVE TO AMEND.
PROCEDURAL HISTORY
On May 29, 2014, Plaintiffs Charles A. Hicks, Deneen Hicks,
and Stacy Hicks, proceeding pro se, filed their Complaint. (ECF
No. 1.)
On November 28, 2014 Defendants Makaha Valley Plantation
Homeowners Association and Hawaii First Inc. filed their Motion
for Dismissal of All Claims Against Defendants Makaha Valley
Plantation Homeowners Association and Hawaii First Inc. (ECF No.
28.)
On December 17, 2014, Plaintiffs submitted a one a letter to
the Court regarding “Opposition to Motion for Dismissal”.
In the
letter, Plaintiff Deneen Hicks stated that she intended “to
submit an answer to the court (a reply) on or before Jan. 8,
2015.”
(ECF No. 33.)
On December 18, 2014, the Court entered a Minute Order
giving Plaintiffs additional time, until January 8, 2015, to file
an Opposition and extending Defendants time to file a reply until
January 19, 2015. (ECF No. 32.)
On January 8, 2015, Plaintiffs filed an Opposition to
Defendants Makaha Valley Plantation Homeowners Association and
Hawaii First Inc.’s Motion for Dismissal of All Claims Against
2
Defendants Makaha Valley Plantation Homeowners Association and
Hawaii First Inc. (ECF No. 34.)
On January 19, 2015, Defendants filed their reply. (ECF No.
36.)
Pursuant to Local Rule 7.2(d), the Court has elected to
decide this matter without a hearing.
BACKGROUND
Plaintiffs Charles A. Hicks and Deneen Hicks are a married
couple and Plaintiff Stacey Hicks is their daughter.
ECF No. 1.)
(Compl.,
Mr. and Mrs. Hicks also have a son named Thomas, who
is not named as a plaintiff.
(Id.)
Accordingly to the
Complaint, Mr. and Mrs. Hicks, and their children, are “AfricanAmerican/Black”. (Id.)
Plaintiffs allege that on November 11, 2008, they purchased
a condominium at Makaha Valley Plantation located in Waianae,
Hawaii. (Id.) Plaintiffs, Mr. and Mrs. Hicks, and their two
children, resided at Makaha Valley Plantation “since about
February 2012.” (Id.)1
Plaintiffs now reside in Georgia. (ECF
No. 15.)2
1
Based on the other allegations in Plaintiffs’ Complaint,
Plaintiffs presumably mean “until” not “since”.
Later in their
Complaint, Plaintiffs allege that, in February 2012, they were
forced to seek alternative housing. The record also shows that
Plaintiffs are now living in Georgia.
2
Plaintiffs filed a request to transfer this case to
Georgia. (ECF No. 15.) The Court denied Plaintiffs’ motion to
3
Defendant Makaha Valley Plantation Homeowners Association is
the homeowners association for the condominium.
at Exh. B, ECF No. 28-4.)
(Def. Opposition
Defendant First Hawaii, Inc. is the
management company for Makaha Valley Plantation Homeowners
Association.
(Def. Opposition at Exh. B, ECF No. 28-4.)
Plaintiffs allege that since moving to Makaha Valley
Plantation they have been subject to discrimination based on
their race.
(Compl., ECF No. 1.)
Plaintiffs generally describe
a number of allegedly discriminatory terms and conditions.
Plaintiffs allege that Defendants3 failed to make satisfactory
repairs to the interior of their unit. (Id.)
Plaintiffs also
allege that Defendants failed to provide them with the “contact
data for the homeowner above whose tenant caused water damage to
[their] unit.”
(Id.)
According to the Complaint, there was more
than one water damage incident.
(Id.)
Plaintiffs allege that
they suffered damages as a result of Defendants’ failure to
provide the contact information for the owner of the unit above
them. (Id.)
According to the Complaint, because of Defendants’
“refusal to provide the contact data for the homeowner above
transfer venue because all Defendants reside in Hawaii and all
actions giving rise to the claims in Plaintiffs’ Complaint
occurred in Hawaii. (ECF No. 27.)
3
Plaintiffs use the terms “Complainants” and “Respondents”.
(See Compl. ECF No. 1.) When referring to Plaintiffs’ Complaint,
the Court has changed Plaintiffs’ reference from “Complainants”
to “Plaintiffs” and from “Respondents” to “Defendants” where
appropriate.
4
[their] unit” Plaintiffs had to make claims against their own
insurance company for repairs and because of the repeated water
damage claims Plaintiffs had to pay for a high-risk insurance
policy which cost them substantially more.
(Id.)
Plaintiffs allege discriminatory conduct by a tenant at
Makaha Valley Plantation condominiums.
Plaintiffs allege that,
on November 11, 2011, a tenant made unprovoked, raciallyderogatory remarks and physically threatened Charles Hicks.
Plaintiffs further allege that Defendants “and its agents”
refused to provide Plaintiffs with the name of the owner of the
unit where the tenant lived.
(Id.)
Plaintiffs allege that they
wanted this information in order to obtain a restraining order
against the tenant. (Id.)
Plaintiffs’ Complaint also contains allegations pertaining
to discrimination under the federal Fair Housing Act and the
Hawaii Discrimination in Real Property Transactions Act based on
disability.
Plaintiffs allege that Mr. Hicks has a disability as
defined by the federal Fair Housing Act and the Hawaii
Discrimination in Real Property Transactions Act. (Id.)
Plaintiffs do not state or otherwise describe the nature of Mr.
Hicks’ disability, but allege that he has a disability that makes
him particularly sensitive to noise disturbances.
(Id.)
According to the Complaint, Plaintiff Deneen Hicks informed
Defendants that she needed the owner of the offending tenant’s
5
unit to be notified of the noise disturbances being made by his
tenant.
(Id.)
Although unclear, Plaintiffs appear to allege
that they requested that Defendants provide this information to
Plaintiffs as a reasonable accommodation for Mr. Hicks’
disability.
(Id.)
According to Plaintiffs, Mr. Hicks was
entitled to a “reasonable accommodation of a quiet environment.”
(Id.)
Plaintiffs allege that because of the lack of a quiet
environment, they were unable to continue living at Makaha Valley
Plantation and, in February 2012, were forced to seek alternative
housing.
(Id.)
Finally, Plaintiffs make a general allegation about further
discriminatory practices by Defendants.
Plaintiffs allege that,
on April 1, 2012, Plaintiff Stacy Hicks returned to the property
and was subject to discriminatory practices by Defendants. (Id.)
Plaintiffs do not state any additional facts about this alleged
incident.
Plaintiffs conclude their Complaint by alleging that “to the
best of their knowledge, non-Black residents/renters at the
subject property have not been similarly subjected to such
discriminatory terms and conditions of tenancy.”
(Id.)
Plaintiffs seek $500,000 in actual damages and $2.5 million in
punitive damages. (Id.)
Prior to filing their May 29, 2014 Complaint in this Court,
Plaintiffs filed complaints with the U.S. Department of Housing
6
and Urban Development (“HUD”) and the Hawaii Civil Rights
Commission (“HCRC”). (Def. Motion at Exhibits B and C, ECF No.
28-4 and 28-5).4
investigation.
HUD referred the matter to the HCRC for
(Id.) On February 12, 2014, HCRC issued a “Notice
of Dismissal and Right to Sue” letter.
D, ECF No. 28-6.)
(Def. Opposition at Exh.
The HCRC dismissed the case on the basis of no
cause. (Id.)
Plaintiffs’ HUD/HCRC complaints contains the same
allegations made by Plaintiffs in their Complaint filed in this
Court.
Plaintiffs’ HUD/HCRC complaints also describe two
additional, allegedly discriminatory incidents.
Plaintiffs’
HUD/HCRC complaints complain that Defendants refused Plaintiffs’
requests to trim the landscaping that interfered with their
access to their parking spot.
ECF No. 28-4, 28-5.)
(Def. Motion at Exhibits B and C,
Plaintiffs also complained that Defendants
enforced parking rules against them that they did not enforce
against non-Black residents.
(Id.)
4
Plaintiffs do not include
Pursuant to Fed. R. Evid. 201(b), the Court takes judicial
notice of Exhibits B, C, and D (ECF No. 28-4, 28-5, and 28-6),
attached to Defendants’ Motion as public records whose accuracy
is not in dispute. See Anderson v. Holder, 673 F.3d 1089, 1094
n. 1 (9th Cir. 2012) (“[A court] may take judicial notice of
records and reports of administrative bodies.”); Gallo v. Board
of Regents of University of California, 916 F.Supp. 1005, 1007
(S.D. Cal. 1995) (“The Court may consider both the EEOC right to
sue letter and the EEOC charge, either as referenced in the
complaint or as public records subject to judicial notice.”).
7
these allegations in their Complaint filed in this Court.
The
Court therefore does not consider these allegations in ruling on
Defendants’ motion to dismiss.
STANDARD OF REVIEW
Motion to Dismiss
The Court must dismiss a complaint as a matter of law
pursuant to Federal Rule of Civil Procedure 12(b)(6) where it
fails “to state a claim upon which relief can be granted.”
Rule
(8)(a)(2) of the Federal Rules of Civil Procedure requires “a
short and plain statement of the claim showing that the pleader
is entitled to relief.”
When considering a Rule 12(b)(6) motion
to dismiss, the Court must presume all allegations of material
fact to be true and draw all reasonable inferences in favor of
the non-moving party.
Pareto v. F.D.I.C., 139 F.3d 696, 699 (9th
Cir. 1998).
Conclusory allegations of law and unwarranted inferences are
insufficient to defeat a motion to dismiss.
Id. at 699.
The
Court need not accept as true allegations that contradict matters
properly subject to judicial notice or allegations contradicting
the exhibits attached to the complaint.
Sprewell v. Golden State
Warriors, 266 F.3d 979, 988 (9th Cir. 2001).
In Bell Atl. Corp. v. Twombly, the United States Supreme
Court addressed the pleading standards under the Federal Rules of
Civil Procedure in the anti-trust context.
8
550 U.S. 544 (2007).
The Supreme Court stated that Rule 8 of the Federal Rules of
Civil Procedure “requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action,” and
that “[f]actual allegations must be enough to raise a right to
relief above the speculative level.”
Id. at 555.
Most recently, in Ashcroft v. Iqbal, the Supreme Court
clarified that the principles announced in Twombly are applicable
in all civil cases.
129 S.Ct. 1937 (2009).
The Court stated
that “the pleading standard Rule 8 announces does not require
‘detailed factual allegations,’ but it demands more than an
unadorned, the-defendant-unlawfully-harmed-me-accusation.”
at 1949 (citing Twombly, 550 U.S. at 555).
Id.
To survive a motion
to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to state a claim to relief that is plausible on
its face.
Id. (quoting Twombly, 550 U.S. at 570).
A claim has
facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.
Twombly, 550 U.S. at 556).
Id. (citing
The plausibility standard is not akin
to a “probability requirement,” but it asks for more than a sheer
possibility that a defendant has acted unlawfully.
Twombly, 550 U.S. at 556).
Id. (quoting
Where a complaint pleads facts that
are “merely consistent with” a defendant’s liability, it “stops
short of the line between possibility and plausibility of
9
‘entitlement to relief.’”
Id. (quoting Twombly, 550 U.S.
at 557).
The complaint “must contain sufficient allegations of
underlying facts to give fair notice and to enable the opposing
party to defend itself effectively” and “must plausibly suggest
an entitlement to relief, such that it is not unfair to require
the opposing party to be subjected to the expense of discovery
and continued litigation.”
AE ex. rel Hernandez v. Cnty. of
Tulare, 666 F.3d 631, 637 (9th Cir. 2012) (internal quotations
omitted).
Pro Se Plaintiff
The Court construes the Complaint liberally because
Plaintiffs are proceeding pro se.
Erickson v. Pardus, 551 U.S.
89, 94 (2007).
ANALYSIS
Defendants contend that Plaintiffs’ Complaint fails to state
a claim for race or disability discrimination.
Plaintiffs’
Complaint references two laws, the federal Fair Housing Act, 42
U.S.C. § 3601 et seq. and Hawaii’s state law counterpart, the
Hawaii Discrimination in Real Property Transactions Act, Hawaii
Revised Statutes, Chapter 515 (“HDRPTA”).
The Fair Housing Act, 42 U.S.C. § 3617 provides:
10
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 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 of Title 42 prohibits discrimination “against
any person in the terms, conditions, or privileges of sale or
rental of a dwelling, or in the provision of services or
facilities in connection therewith, because of race, color,
religion, sex, familial status, or national origin.” 42 U.S.C. §
3604(b).
The Fair Housing Act also prohibits discrimination based on
disability. Under the Fair Housing Act it is unlawful to
“discriminate against any person ... in the provision of services
or facilities in connection with [his] dwelling, because of a
handicap” of that person or any person associated with that
person. 42 U.S.C. § 3604(f)(2).
The Hawaii Discrimination in Real Property Transactions Act
(“HDRPTA”), Hawaii Revised Statutes, Section 515-16 similarly
prohibits discrimination based on race or disability.
HDRPTA,
Section 515-16(6) states that it is a discriminatory practice:
To threaten, intimidate or interfere with persons in
their enjoyment of a housing accommodation because of the
race, sex, including gender identity or expression,
sexual orientation, color, religion, marital status,
familial status, ancestry, disability, age, or human
immunodeficiency virus infection of the persons, or of
11
visitors or associates of the persons.
Haw. Rev. Stat. § 515-16(6).
Section 515-3 of the HDRPTA also makes it a discriminatory
practice for owners or any other person engaging in a real estate
transaction “[t]o refuse to make reasonable accommodations in
rules, policies, practices, or services, when the accommodations
may be necessary to afford a person with a disability equal
opportunity to use and enjoy a housing accommodation”.
Haw. Rev.
Stat. § 515-3(11).
A.
Lack of Specificity as to Defendants’ Actions
Plaintiffs’ Complaint contains allegations against
“Respondents”.
Plaintiffs Complaint names two defendants, Makaha
Valley Plantation Homeowner’s Association, the condominium
homeowners’ association, and Hawaii First, Inc., the
condominium’s management company.
entities.
Defendants are separate
Plaintiffs’ Complaint lumps both Defendants together.
The board of directors of a homeowners association has various
responsibilities to owners and tenants.
The management agency
for a condominium has various responsibilities to the homeowners’
association as well as to the owners and tenants.
The Complaint
does not contain sufficient factual allegations as to what
responsibilities either the homeowners’ association or the
management company have breached as to the Plaintiffs.
The
Complaint also lacks sufficient information as to how Plaintiffs
12
informed either Makaha Valley Plantation or Hawaii First, Inc.,
or both, of their concerns regarding lack of repairs to their
unit and the conduct of other tenants.
The Complaint does not
state who Plaintiffs contacted, when Plaintiffs contacted them,
and by what means.
Plaintiffs’ Complaint must contain sufficient
allegations of underlying facts to give fair notice and to enable
the opposing party to defend itself effectively.
As pled,
Plaintiffs have not given Defendants fair notice of the
allegations against them.
Plaintiffs have not made clear if
either, or both Defendants are responsible for the allegedly
unlawful conduct described in Plaintiffs’ Complaint.
Plaintiffs’
Complaint must set forth factual allegations explaining how each
Defendant allegedly violated the law.
Plaintiffs’ Complaint is dismissed, without prejudice, based
on this ground alone.
Plaintiffs are given leave to amend to set
forth allegations explaining how each Defendant allegedly
violated the law.
B.
Race Discrimination Claim
The Fair Housing Act makes it unlawful “[t]o discriminate
against any person in the terms, conditions, or privileges of
sale or rental of a dwelling, or in the provision of services or
facilities in connection therewith, because of race [or] color.”
42 U.S.C. § 3604(b).
To assert a Fair Housing Act claim, plaintiffs must allege
13
that (1) they have rights protected under the Fair Housing Act;
(2) defendants have engaged in discriminatory conduct; and (3) as
a result of the defendants’ discriminatory conduct, plaintiffs
have suffered a distinct and palpable injury.
See Harris v.
Itzhaki, 183 F.3d 1043, 1051 (9th Cir. 1999).
The Court address each of Plaintiffs’ allegations based on
race discrimination, in turn.
1.
Failure to make satisfactory repairs
Plaintiffs allege that Defendants discriminated against them
by failing to make satisfactory repairs to the interior of
Plaintiffs’ unit. At the end of their Complaint, Plaintiffs make
the general allegation that other non-Black residents have not
been “similarly subjected to discriminatory treatment.”
To state a claim, Plaintiffs must make some allegations
that, if proven, could show that either Makaha Valley Plantation
or Hawaii First, Inc. had a duty to make repairs and failed to
make satisfactory repairs because of their race. Put another way,
there must be some causal link or connection between Defendants’
actions and Plaintiffs’ race.
Plaintiffs may state a discrimination claim by alleging that
they have been treated differently than similarly situated nonBlack residents.
See Harris v. Itzhaki, 183 F.3d 1043, 1051 (9th
Cir. 1999) (plaintiff can establish a Fair Housing Act claim
under a theory of disparate treatment or disparate impact). Here,
14
Plaintiffs’ generalized and conclusory allegation is insufficient
to support their race discrimination claim based on Defendants
failure to make satisfactory repairs.
To state a claim
Plaintiffs would need to allege not only that a particular
defendant had a duty to and failed to satisfactorily repair
Plaintiffs’ unit, but that the defendant satisfactorily repaired
the unit or units of non-Black residents. See Haynes v. R.W.
Selby & Co., Inc., 338 Fed.Appx. 694, 695, 2009 WL 2191246, at *1
(9th Cir. 2009)(plaintiffs’ allegations that defendants
discriminated against him by increasing his rent after learning
he was African American and Muslim, and that he suffered injuries
may be sufficient to state a claim under the Fair Housing Act, as
amended by the Fair Housing Amendments Act of 1988 (“FHA”), 42
U.S.C. § 3601 et seq.)
Plaintiffs make no such allegation.
Plaintiffs’ race discrimination claim based on failure to
satisfactorily repair Plaintiffs’ unit is dismissed without
prejudice.
Plaintiff is given leave to amend to add sufficient
allegations to state a claim for violation of the Fair Housing
Act and the Hawaii Discrimination in Real Property Transactions
Act.
2.
Failure to provide contact data for owner of unit
causing water damage to Plaintiffs’ unit
Plaintiffs allege that Defendants discriminated against them
by failing to provide the name of the owner of a unit whose
tenant caused water damage to Plaintiffs’ unit.
15
As with their
other claims, Plaintiffs fail to specify which Defendant
allegedly failed to provide this information.
Plaintiffs also
fail to state how this alleged failure constitutes racially
discriminatory conduct. Plaintiffs have not alleged facts which
would show that Defendants failed to provide this information
because of Plaintiffs’ race or that would otherwise give rise to
the inference that Defendants discriminated against them.
3.
November 11, 2011 racially derogatory remark by tenant
Plaintiffs allege that Defendants discriminated against them
by failing to provide the name of the owner of a unit whose
tenant made racially derogatory remarks to Mr. Hicks.
As with
their other claims, Plaintiffs fail to specify which Defendant
allegedly failed to provide this information.
Plaintiffs must allege further facts.
To state a claim,
The Complaint must contain
more information about the conduct of the homeowners association
or the management company, or both, concerning their alleged
engagement in discriminatory conduct.
Even if the underlying
theory is neglect of Plaintiffs by the Defendants, more
particularity as to the parties’ actions is necessary.
4.
April 1, 2012 discriminatory practices
Plaintiffs allege that on April 1, 2012, Plaintiff Stacey
Hicks returned to the property and was subject to discriminatory
practices.
This allegation is vague and conclusory.
Plaintiffs
do not allege what practices Stacey was subjected to, how those
16
practices were discriminatory, or who (which Defendant) engaged
in such practices.
5.
Conclusion as to discrimination claim based on race
For these reasons, Plaintiffs have failed to state a claim
for race discrimination under the Fair Housing Act or the Hawaii
Discrimination in Real Property Transactions Act.
Plaintiff is
given leave to amend to add sufficient allegations to state a
claim for violation of the Fair Housing Act and the Hawaii
Discrimination in Real Property Transactions Act.
C.
Discrimination Claims Based on Failure to Provide Reasonable
Accommodation
The Fair Housing Act makes it unlawful to “discriminate
against any person ... in the provision of services or facilities
in connection with [his] dwelling, because of a handicap” of that
person or any person associated with that person. 42 U.S.C. §
3604(f)(2). Discrimination includes “a refusal to make reasonable
accommodations in rules, policies, practices, or services, when
such accommodations may be necessary to afford [a disabled]
person equal opportunity to use and enjoy a dwelling....” 42
U.S.C. § 3604(f)(3)(B); 24 C.F.R. § 100.204. “The reasonable
accommodation inquiry is highly fact-specific, requiring
case-by-case determination.” DuBois v. Association of Apartment
Owners of 2987 Kalakaua, 453 F.3d 1175, 1179 (9th Cir.
17
2006)(quoting United States v. California Mobile Home Park Mgmt.
Co., 107 F.3d 1374, 1380 (9th Cir.1997) (citations omitted)).
For a discrimination claim based on the failure to provide a
reasonable accommodation, a plaintiff is required to show that:
(1) he suffers a handicap as defined by the Fair Housing Act; (2)
defendants knew or should have known of plaintiff's handicap; (3)
accommodation “may be necessary” to afford the plaintiff “an
equal opportunity to use and enjoy the dwelling”; and (4)
defendants refused to make such an accommodation. 42 U.S.C. §
3604(f)(3)(B). See Roman v. Jefferson at Hollywood LP, 495
Fed.Appx. 804, 805, 2012 WL 5351249, at *1 (9th Cir. 2012).
Plaintiffs have failed to state a disability discrimination
claim under the Fair Housing Act because they have failed to
allege facts that show that the first element is satisfied.
Plaintiffs make the conclusory allegation that Plaintiff Mr.
Hicks’ has a disability as defined by the federal Fair Housing
Act and the Hawaii Discrimination in Real Property Transactions
Act. (Compl., ECF No. 1.)
Plaintiffs allege that Mr. Hicks’
disability makes him particularly sensitive to noise
disturbances.
Plaintiffs do not state or otherwise describe the
nature of Mr. Hicks’ disability. Both the Fair Housing Act and
the Hawaii Discrimination in Real Property Transactions Act
18
define a handicap5 as: a physical or mental impairment which
substantially limits one or more major life activities, having a
record of such impairment, or being regarded as having such an
impairment. 42 U.S.C. § 3602(h)(1); Haw. Rev. Stat. § 515-2.
“[M]ajor life activities include, but are not limited to, caring
for oneself, performing manual tasks, seeing, hearing, eating,
sleeping, walking, standing, lifting, bending, speaking,
breathing, learning, reading, concentrating, thinking,
communicating, and working.” Bezi v. Camacho, 2014 WL 2215911, at
*6 (C.D. Cal. May 23, 2014)(quoting 28 U.S.C. § 12102(2)(A)).
“‘Major life activities’” also include, ‘the operation of a major
bodily function, including but not limited to, functions of the
immune system, normal cell growth, digestive, bowel, bladder,
neurological, brain, respiratory, circulatory, endocrine, and
reproductive functions.’” Id. (quoting 28 U.S.C. § 12102(2)(B)).
Not only do Plaintiffs fail to allege the nature of Mr.
Hicks’ disability, but they fail to allege how it substantially
limits one or more of his major life activities.
See Burgess v.
Alameda Housing Authority, 98 Fed.Appx. 603, 606, 2004 WL 958004,
at *2 (9th Cir. 2004) (“To state a claim of disability
5
The term “handicap” and “disability” may be used
interchangeably. See Bezi v. Camacho, 2014 WL 2215911, at *6
(C.D. Cal. May 23, 2014) (noting that the definition of
“handicap” in the Fair Housing Act is the same as the definition
of “disability” as provided in the Americans with Disabilities
Act).
19
discrimination, a plaintiff must allege some disability that
would meet the statutory requirements.”)
In Burgess, 98
Fed.Appx. at 606, 2004 WL 958004 at *2, for instance, the Court
found that plaintiff had “barley” alleged a disability based
discrimination claim under the Fair Housing Act where she alleged
that she was “often sick” and that she is at times “unable to do
much of anything”.
Plaintiffs’ Complaint contains no such
allegation.
To state a claim for disability discrimination based on
failure to provide a reasonable accommodation, Plaintiffs must
also allege facts which could establish the other elements of
such a claim.
The second element is that Defendants knew or should have
known of the disability.
Plaintiffs do not allege that either
Makaha Valley Plantation or Hawaii First, Inc. knew, or should
have known, that Mr. Hicks had a disability.
Plaintiffs, for
instance, do not allege that they informed either Makaha Valley
Plantation or Hawaii First, Inc. of the nature of Mr. Hicks’
disability.
Nor do Plaintiffs allege facts that would show that
Mr. Hicks’ disability was otherwise obvious.
Rather, Plaintiffs
allege only that Mrs. Hicks requested that Defendants provide her
with the contact information for the unit owner of the offending
tenant, presumably to tell the unit owner to tell the tenant to
be quieter.
Plaintiffs do not allege that they requested that
20
Defendants do anything other than provide contact information. A
request for contact information is not a request for a reasonable
accommodation.
The third element requires Plaintiffs to allege facts which
show that an accommodation may be necessary to afford Mr. Hicks
an equal opportunity to use and enjoy the dwelling.
Plaintiffs
refer to the “reasonable accommodation of a quiet environment”.
(Compl., ECF No. 1.)
Again, Plaintiffs do not allege that they
requested that Defendants secure a “quiet environment” as a
reasonable accommodation.
Plaintiffs must also allege facts to show that the request
for an accommodation was both reasonable and possible.
See Roman
v. Jefferson at Hollywood LP, 495 Fed.Appx. 804, 805-806, 2012 WL
5351249, at *1 (9th Cir. 2012); see also Giebeler v. M & B
Assocs., 343 F.3d 1143, 1156 (9th Cir. 2003) (holding that a
plaintiff alleging Fair Housing Act reasonable accommodation
discrimination has the burden to show reasonableness or
possibility of accommodations).
According to the Complaint, it
was another tenant, not Defendants, who was allegedly causing
harm to Mr. Hicks. Plaintiffs have not alleged facts which could
establish a causal link between either Makaha Valley Plantation
or Hawaii First, Inc.’s actions and the fact that Mr. Hicks was
allegedly deprived of a quiet environment.
Finally, Plaintiffs have not alleged facts to support a
21
showing as to the fourth element of a discrimination claim based
on Defendants’ failure to reasonably accommodate Mr. Hicks.
Plaintiffs have not set forth sufficient facts to show that they
requested that Defendants make an accommodation, much less that
Defendants, after having received Plaintiffs’ request, refused to
make one.
Again, Mrs. Hicks’ request for contact information is
not a request for a reasonable accommodation.
For these reasons, Plaintiffs have failed to state a claim
for disability discrimination under the Fair Housing Act or the
Hawaii Discrimination in Real Property Transactions Act.
Plaintiff is given leave to amend to add sufficient allegations
to state a claim for violation of the Fair Housing Act and the
Hawaii Discrimination in Real Property Transactions Act based on
disability discrimination for failure to provide a reasonable
accommodation.
CONCLUSION
Defendants’ Motion to Dismiss (ECF No. 28) is GRANTED WITH
LEAVE TO AMEND.
Plaintiffs may file an Amended Complaint by Friday, March 6,
2015.
Plaintiffs are given leave to amend to add sufficient
allegations to state a claim for:
Violation of the Fair Housing Act and the Hawaii
22
Discrimination in Real Property Transactions Act based on race
discrimination; and
Violation of the Fair Housing Act and the Hawaii
Discrimination in Real Property Transactions Act based on
disability discrimination for failure to provide a reasonable
accommodation.
The Amended Complaint must conform to the rulings contained
in this Order.
Failure to file an Amended Complaint consistent
with this Order by Friday, March 6, 2015, will result in
dismissal of the entire matter.
IT IS SO ORDERED.
DATED: January 23, 2015, Honolulu, Hawaii.
/s/ Helen Gillmor
Helen Gillmor
United States District Judge
_________________________________________________________________
Charles Hicks, et al v. Makaha Valley Plantation Homeowners
Association, et al.; Civ. No. 14-00254 HG-BMK; ORDER GRANTING
DEFENDANTS’ MOTION FOR DISMISSAL OF ALL CLAIMS AGAINST DEFENDANTS
MAKAHA VALLEY PLANTATION HOMEOWNERS ASSOCIATION AND HAWAII FIRST,
INC.(ECF No. 28) WITH LEAVE TO AMEND.
23
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?