DeRock v. Boise City et al

Filing 23

MEMORANDUM DECISION AND ORDER. IT IS FURTHER ORDERED, that his amended application for leave to proceed in forma pauperis 11 is GRANTED and he may proceed without payment of the filing fee. IT IS FURTHER ORDERED, that his motion for appointment of counsel 9 is GRANTED. The Clerk shall take the steps necessary to attempt to obtain pro bono counsel for DeRock. The Clerk shall report to the Court on a regular basis the status of that search for counsel. IT IS FURTHER ORDERED, that within 60 days from the date of this decision, counsel shall be secured for DeRock, if possible, and DeRock shall file his amended complaint. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (st)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
RODRICK G. DeROCK,
Plaintiff,

Case No. 1:12-CV-024-BLW

v.

MEMORANDUM DECISION AND
ORDER

BOISE CITY, and ADA COUNTY
HOUSING AUTHORITY,
Defendant.

MEMORANDUM DECISION
The Ninth Circuit remanded this case after affirming in part and reversing in
part the Court’s decisions regarding the ten consolidated cases. The Circuit held
that the Court did not abuse its discretion in denying leave to amend in nine cases,
but only affirmed in part the Court’s decisions in a tenth case, DeRock v. Boise
City, 1:12-cv-00024-BLW. In that case, the Circuit affirmed the Court’s decision
to deny leave to amend DeRock’s conspiracy claims against defendant Boise
City/Ada County Housing Authority.
But the Circuit also held that the Court should have granted leave to amend
DeRock’s disability discrimination claims against defendant Boise City/Ada
County Housing Authority. The Circuit directed this Court to consider that issue
and two others on remand:
Memorandum Decision & Order – page 1

As a pro se litigant, DeRock should have received notice of
any defects in his disability discrimination claims and an opportunity
to amend. It appears that DeRock may be attempting to allege that
he suffered from a qualifying disability and that the Boise City/Ada
County Housing Authority failed to reasonably accommodate that
disability when it refused to waive the rent on his therapeutic
bedroom. Accordingly, we reverse and remand as to DeRock’s
disability discrimination action against defendant Boise City/Ada
County Housing Authority so that DeRock may receive notice of
any defects and an opportunity to amend with the benefit of that
notice. On remand, the district court should also consider the merits
of DeRock’s motion for appointment of counsel, which it previously
denied as moot. Moreover, the pre-filing restriction that the district
court entered against DeRock was not narrowly tailored to DeRock’s
vexatious filing of lawsuits regarding his rental dispute and his relitigation of previously dismissed claims. On remand, the district
court may enter another pre-filing order consistent with this
disposition.
See DeRock v Sprint-Nextel et al, 2015 WL 1063059 (9th Cir. March 12, 2015).
The Court will now address the three issues remanded to this Court.
Leave To Amend
The Court will grant leave to DeRock to allege that he suffered from a
qualifying disability and that the Boise City/Ada County Housing Authority failed
to reasonably accommodate that disability when it refused to waive the rent on his
therapeutic bedroom. The failure to accommodate a disability might make out a
claim under Title II of the Americans with Disabilities Act. The case of O’Guinn
v. Lovelock Corr. Ctr., 502 F.3d 1056, 1060 (9th Cir. 2007) sets forth the elements
necessary to plead such a claim. Under that case, DeRock must allege that:

Memorandum Decision & Order – page 2

(1) he is an individual with a disability; (2) he is otherwise qualified to
participate in or receive the benefit of some public entity’s services,
programs, or activities; (3) he was either excluded from participation
in or denied the benefits of the public entity’s services, programs, or
activities, or was otherwise discriminated against by the public entity;
and (4) such exclusion, denial of benefits, or discrimination was by
reason of [his] disability.
Id. at 1060. DeRock needs to amend his complaint to allege each of these
elements. For example, DeRock needs to identify with specificity his disability.
He needs to explain what program he is entitled to receive and how he is being
excluded from that program. Finally, he needs to explain how his exclusion is the
result of his disability. The Amended Complaint presently on file does not clearly
explain these elements and is subject to dismissal unless DeRock’s amendment
cures that defect.
DeRock may also be seeking to allege a claim under § 504 of the
Rehabilitation Act. To make that claim, DeRock must allege that:
(1) he is an individual with a disability; (2) he is otherwise qualified to
receive the benefit; (3) he was denied the benefits of the program
solely by reason of his disability; and (4) the program receives federal
financial assistance.
Id. Once again, DeRock needs to describe his disability and explain what benefits
he was denied because of his disability. The Court cannot understand from the
current Amended Complaint whether DeRock is adequately describing and
explaining these items.

Memorandum Decision & Order – page 3

Finally, DeRock may be seeking to allege a claim under the Fair Housing
Amendments Act of 1988. To make this claim, DeRock must allege:
(1)he suffers from a handicap as defined by the FHAA; (2) the City
“knew or reasonably should have known of” his handicap; (3)
“accommodation of the handicap may be necessary to afford
[DeRock] an equal opportunity to use and enjoy [his] dwelling;” and
(4) the City refused to make such accommodation.
McGary, 386 F.3d at 1262. Here again, DeRock must identify his handicap, the
accommodation necessary, and how the City refused to make that accommodation.
If DeRock cannot amend his complaint to more clearly explain how he
satisfies each of these elements, his complaint will be dismissed. The Court will
grant DeRock 30 days to file a new amended complaint.
Application to Proceed In Forma Pauperis & Appointment of Counsel
The Court previously denied as moot DeRock’s application to proceed in
forma pauperis because he failed to state a claim. But the Court must now
reconsider that decision pursuant to the remand from the Circuit. Upon
reconsideration, the Court finds that the application sets forth good grounds for
proceeding in forma pauperis, and the Court will therefore waive any filing fee.
DeRock has also filed a motion for appointed counsel. Generally, a person
has no right to counsel in civil actions. See Palmer v. Valdez, 560 F.3d 965, 970
(9th Cir. 2009). However, a court may under “exceptional circumstances” appoint
counsel for indigent civil litigants pursuant to 28 U.S.C. § 1915(e)(1). Id. When
Memorandum Decision & Order – page 4

determining whether “exceptional circumstances” exist, a court must consider “the
likelihood of success on the merits as well as the ability of the petitioner to
articulate his claims pro se in light of the complexity of the legal issues involved.”
Id. Neither of these considerations is dispositive and instead must be viewed
together. Id.
The single claim that may remain in this case, if properly pled, is DeRock’s
apparent allegation that he suffered from a qualifying disability and that the Boise
City/Ada County Housing Authority failed to reasonably accommodate that
disability when it refused to waive the rent on his therapeutic bedroom. When
DeRock drafts his own pleadings, they are often too confusing to understand. But
he might have a claim here. The Court therefore finds exceptional circumstances,
and will grant his motion.
The Court will direct the Clerk to attempt to find pro bono counsel for
DeRock. The Clerk shall report to the Court on a regular basis the status of its
search for counsel.
Vexatious Filings
In its earlier decision, the Court ordered that “DeRock is required to obtain
approval of the court before filing any further complaints.” The Circuit held that
this pre-filing restriction “was not narrowly tailored to DeRock’s vexatious filing
of lawsuits regarding his rental dispute and his re-litigation of previously dismissed
Memorandum Decision & Order – page 5

claims.” See De Long v. Hennessey, 912 F.2d 1144, 1146–48 (9th Cir. 1990)
(setting forth standard of review and discussing the four factors for imposing prefiling restrictions). The first De Long criteria examines whether the petitioner has
a history of filing frivolous cases. The most recent Circuit decision affirmed this
Court’s finding that nine of his cases were frivolous, and that satisfies this element.
De Long also examines whether the petitioner has had an opportunity to
contest the frivolous finding. Here, DeRock had an opportunity to contest the
Court’s prior restriction before the Circuit, and at most obtained a decision that
required a narrower restriction, but did not obtain a decision reversing the
restriction altogether.
For all these reasons, the Court finds that a pre-filing restriction is
appropriate under the De Long standards. The Court will narrow that restriction so
that it only applies to further lawsuits regarding his rental dispute and any relitigation of previously dismissed claims.
ORDER
Pursuant to the Memorandum Decision set forth above,
NOW THEREFORE IT IS HEREBY ORDERED, that the plaintiff DeRock
is given leave to amend a single claim in this case: That he suffered from a
qualifying disability and that the Boise City/Ada County Housing Authority failed

Memorandum Decision & Order – page 6

to reasonably accommodate that disability when it refused to waive the rent on his
therapeutic bedroom.
IT IS FURTHER ORDERED, that his amended application for leave to
proceed in forma pauperis (docket no. 11) is GRANTED and he may proceed
without payment of the filing fee.
IT IS FURTHER ORDERED, that his motion for appointment of counsel
(docket no. 9) is GRANTED. The Clerk shall take the steps necessary to attempt
to obtain pro bono counsel for DeRock. The Clerk shall report to the Court on a
regular basis the status of that search for counsel.
IT IS FURTHER ORDERED, that within sixty (60) days from the date of
this decision, counsel shall be secured for DeRock, if possible, and DeRock shall
file his amended complaint. This deadline may be extended for good cause shown.
IT IS FURTHER ORDERED, that DeRock is required to obtain approval of
the Court before filing any further lawsuits regarding his rental dispute and any relitigation of previously dismissed claims.
DATED: April 16, 2015

_________________________
B. Lynn Winmill
Chief Judge
United States District Court

Memorandum Decision & Order – page 7