Stein et al v. Creekside Seniors L.P.

Filing 55

MEMORANDUM DECISION AND ORDER RE: DKTS. 40, 43,45, and 48. NOW THEREFORE IT IS HEREBY ORDERED: Plaintiffs' Motion to Compel 40 is DENIED; Plaintiffs' motion to consider unanswered admissions as admitted 48 is DENIED as MOOT; Plaintiff s' Motion for Summary Judgment 43 is DENIED; and Defendant's Motion for Summary Judgment 45 is GRANTED. Signed by Judge Candy W. Dale. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (st)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

JAMES and CAROL STEIN,
Case No. 3:14-cv-00432-CWD
Plaintiffs,
MEMORANDUM DECISION AND
ORDER RE: DKTS. 40, 43, 45, and 48

v.
CREEKSIDE SENIORS, L.P.,
Defendant.

Four motions are pending before the Court in this fair housing action filed by pro
se Plaintiffs James and Carol Stein against the owner of their apartment complex,
Creekside Seniors, L.P. First, are two competing motions for summary judgment on all
claims asserted in the Steins’ Amended Complaint. (Dkts. 43, 45.) Next, are two
discovery motions filed by the Steins. (Dkts. 40, 48.)
All parties have consented to the jurisdiction of a United States Magistrate Judge
pursuant to 28 USC § 636(c). (Dkt. 27.) In the interest of avoiding delay, and because the
Court conclusively finds the decisional process would not be significantly aided by oral
argument, the pending motions will be decided on the record and without oral argument.
Dist. Idaho L. Rule 7.1(d). For the reasons that follow, the Court will deny the Steins’
MEMORANDUM DECISION AND ORDER - 1

two discovery motions and their motion for summary judgment, and will grant
Creekside’s motion for summary judgment.
Before setting forth the background facts relevant to the summary judgment
motions, the Court will take up the two discovery motions filed by the Steins.
DISCOVERY MOTIONS (DKTS. 40, 48)
The two discovery motions filed by the Steins are: (1) a Motion to Compel
Discovery Production (Dkt. 40); and (2) a motion requesting the Court to accept the
unanswered requests for admission as admitted, and consider those admissions in the
Court’s consideration of the Steins’ summary judgment motion. (Dkt. 48.) For the
reasons that follow, the Court will deny both motions.
1. Background
On May 13, 2015, the Steins served five sets of interrogatories and six sets of
requests for admission on Defendant Creekside. While the discovery was served upon
Creekside, each discovery set was directed to individually named employees of
Creekside. 1 On May 18, 2015, counsel for Creekside, Theresa Kitay, wrote to the Steins
to inform them their discovery requests were untimely and legally deficient. The Court’s
Case Management Order (Dkt. 28) set May 22, 2015, as the deadline for the completion
of factual discovery. Kitay referenced the language in the Court’s Order providing that
“discovery requests must be made far enough in advance of this deadline to allow for the

1

The employees included both present and past employees. Specifically, the Steins served sets of
interrogatories on: Maryann Prescott, Maria Cooper, Rusty Koller, Allen Zagelow, and Kevin Chaffin.
The Steins served requests for admission on: Sherry Cox, Kevin Chaffin, Michelle Scher, Maryann
Prescott, Todd Prescott, and Maria Cooper.
MEMORANDUM DECISION AND ORDER - 2

completion of the discovery by the deadline date.” (Dkts. 28, 42-5.) In addition to the
untimeliness of their discovery requests, Kitay also informed the Steins that their
discovery requests were legally deficient in two ways; specifically, that the discovery
requests were improperly addressed to individuals who are not parties to the litigation,
and also that several of the discovery requests called for conclusions of law, or asserted
matters of fact without sufficient foundation, such that they were not susceptible to a
response.
On May 20, 2015, the Steins filed an unopposed motion to extend the discovery
deadline by forty days “to accommodate defendants[sic] responses of plaintiffs[sic] First
set of Interrogatories and Requests for Admission issued by Plaintiffs….” (Dkt. 37.) The
Court granted the motion, and the factual discovery deadline was extended through July
13, 2015. However, the Steins did not redraft or serve discovery requests on Creekside.
On July 7, 2015, Kitay informed the Steins that their discovery requests served on May
13, 2015, though no longer untimely, still contained legal deficiencies, and for that
reason, Creekside would not be responding to them. The Steins then filed a motion to
compel responses to the May 15, 2015 discovery requests on July 10, 2015, three days
before the new discovery deadline. 2
The following month, each party filed their own summary judgment motion.
(Dkts. 43, 45.) After these motions were filed, the Steins filed a motion requesting the

2

In light of the Steins’ pro se status and the fact that Creekside’s counsel conferred by letter more than
once in her attempt to allow the Steins to cure the discovery dispute, the Court finds the parties satisfied
the meet and confer requirement before the Steins filed their discovery motion. See Dist. Idaho L. Rule
37.1.
MEMORANDUM DECISION AND ORDER - 3

Court to accept the unanswered requests for admission from the May 15, 2015 discovery
requests, as admissions and for the Court to consider those admissions in its decision on
the Steins’ motion for summary judgment. 3
2. Motion to Compel (Dkt. 40)
The Steins seek to compel answers to five sets of interrogatories and six sets of
requests for admission which were directed to various Creekside employees not named as
parties in this litigation. Defendants argue the discovery requests are legally deficient,
because they were not directed to a party in this litigation as required by Fed. R. Civ. P.
33(a)(1) and 36(a)(1).The Court finds the discovery requests are legally deficient in both
form and substance.
With regard to form, the Court finds the requests are improper as they are not
directed to a party to this litigation. Fed. R. Civ. P. 33(a)(1); 36(a)(1). And, upon review
of the requests for admission, the Court finds these requests are in an improper form, as
the Steins ask in each “request” for the responding individual to “admit or deny,” and/or
are otherwise in a form that is not susceptible for admission, with or without an
explanation of denial. See Fed. R. Civ. P. 36(a).
With regard to substance, the Court finds the discovery requests were unlikely to
lead to relevant and admissible evidence in this fair housing action. Several of the Steins’
discovery requests relate to circumstances surrounding an alleged breach of the lease
agreement between the Steins and Creekside; however, breach of contract is not an issue

3

The Court will construe this request as a request for the Court to deem the unanswered requests for
admission as admitted pursuant to Fed. R. Civ. P. 36(a)(6).

MEMORANDUM DECISION AND ORDER - 4

presently before the Court. In the discovery requests remaining, the Steins draw legal
conclusions and state matters of fact, many beyond the issues raised in this case, without
laying proper foundation. 4
Despite these legal deficiencies, the Court reviewed the discovery requests closely
to determine whether the answers sought by the Steins may have included evidence
relevant to their claims or Creekside’s defenses in this action. Based on that review,
however, the Court finds the requested information immaterial to its summary judgment
analyses below. Accordingly, the Court will deny the Steins’ motion to compel.
2. Motion to Accept Unanswered Requests for Admission as Admissions (Dkt. 48)
The Steins request that, if the Court finds no merit to Creekside’s response to the
motion to compel (Dkt. 42), the Court deem the Steins’ unanswered requests for
admission served upon Creekside as admitted and consider those admissions in the
Court’s analysis of the Steins’ motion for summary judgment. As stated above, the Court
finds the Steins’ requests for admission legally deficient in both substance and form, and
will deny the motion to deem them admitted as moot.
The Court acknowledged the timing of this motion (which was filed after the filing
of the two summary judgment motions), and considered whether this motion was actually
a request for discovery pursuant to Fed. R. Civ. P. 56(d). After review of the various
discovery requests, and as explained above in the Court’s motion to compel analysis,

4

For example, one request for admission states as follows: “Do you admit or deny that the Creekside
Seniors LP apartments do not have, and were not built with an Accessible Route into the Through the
Covered Unit in compliance with the Federal Fair Housing Act Regulations, 24 CFR 100.205?” (Dkt. 423 at 12.)
MEMORANDUM DECISION AND ORDER - 5

several of the requests sought information unrelated to the issues in this litigation and
none would have elicited facts or evidence essential for the Steins to justify their
opposition to Creekside’s motion for summary judgment.
MOTIONS FOR SUMMARY JUDGMENT (DKTS. 43, 45)
In their amended complaint, the Steins allege several Fair Housing Act (FHA) and
Rehabilitation Act (RA) violations, challenging Creekside’s alleged failure to make
reasonable accommodations on account of Mr. Stein’s disability. The Steins further assert
several retaliation claims under both the FHA and RA against Creekside. Last, the Steins
allege the design of their dwelling is in violation of the FHA because it does not have a
“secondary exit.” Both parties filed summary judgment motions on all claims asserted
against Creekside in the Amended Complaint.
1. Factual Background 5
Creekside Seniors, L.P., owns Creekside Senior Apartments, a multifamily
property located in Moscow, Idaho, funded through Section 42 Low Income Housing Tax
Credits, as well as federal HOME Investment Partnership funds. Dec. Hoagland, ¶ 2.
(Dkt. 45-4 at 2.) In September of 2011, James and Carol Stein moved to Creekside and
have continued, through the present, to rent and occupy apartment #132. Mr. Stein suffers
from coronary heart disease, chronic obstructive pulmonary disease, and diabetes;

5

Unless otherwise indicated, the facts are undisputed. The Steins failed to properly address Creekside’s
statement of undisputed facts as required by Fed. R. Civ. P. 56(c). The Steins filed a “Statement of All
Material Facts in Dispute” but allege generally, as to each of their claims, that “there are no known raised
Disputed Material Facts from Defendants.” (Dkt. 50.) Accordingly, the Court will consider Creekside’s
facts as undisputed for the purposes of consideration of the motions for summary judgment. See Idaho L.
Rule 7.1(e).
MEMORANDUM DECISION AND ORDER - 6

Creekside does not dispute Mr. Stein is a disabled person for all purposes related to this
matter.
The Steins’ FHA and RA allegations arise out of various requests the Steins made
to Creekside, which included requests to: (1) enforce the no-smoking policy as set forth
in their lease; (2) memorialize their parking assignment in writing; (3) properly install
reinforcements behind their shower grab bar in accordance with HUD regulations; and
(4) install a secondary exit to their apartment. The Court will address the facts giving rise
to each request separately below.
A. Request to Enforce the No-Smoking Policy
Mr. Stein alleges his disability is exacerbated by exposure to second hand cigarette
smoke, so he decided to move to Creekside due to its no-smoking policy. The lease
agreement between Creekside and the Steins includes the following language regarding
smoking on the Creekside Senior Apartment premises:
SMOKING: It is understood that smoking is prohibited in the Apartment.
In the event that smoking is conducted in the Apartment or breezeway,
Tenant agrees such act constitutes a material and non curable breach of this
lease resulting in immediate termination of [the] lease and grounds for
immediate eviction.
…
No tenant, guests or other household members will be allowed to smoke in
all common areas of the property. A common area is any corridor,
breezeway, stairway or hallway, including the area immediately outside of
apartments.
Dec. Cooper, Ex. 1—Stein Lease Agreement. (Dkt. 45-3 at 10, 15.) Despite the smoking
prohibitions in the lease, prior to September of 2013, on-site Creekside management
interpreted the “no smoking policy” to mean that smoking was prohibited in the
MEMORANDUM DECISION AND ORDER - 7

apartment and anywhere around the buildings, but that people could smoke on their
porches and in outdoor common areas removed from the buildings. 6 Id.at ¶ 4 (Dkt. 45-3
at 2); see also (Dkt. 54-19 at 4.)
The Steins contend they began complaining of tenant smoking violations in 2012,
when they noticed their next door neighbor smoking on his porch. Am. Compl. (Dkt. 30 at
11.) The Steins allege they made several requests to Creekside’s former on-site manager,
Michele Scher, to instruct the neighbor to stop smoking on his porch, but the requests
were denied. Id.
The smoking tenant moved out, and was replaced by a new tenant in August of
2013. Id. Mr. Stein suspected the new tenant was also a “smoker” after noticing an
ashtray on her porch. Id. Outraged that Creekside placed another smoking tenant next
door, the Steins began contacting various legal representatives to assist them in their
efforts to enforce Creekside’s no-smoking policy.
First, the Steins retained attorney Jefferson Griffeath. On August 18, 2013,
Griffeath sent Creekside a letter requesting the no smoking policy be properly enforced. 7
On September 5, 2013, counsel for Creekside, Theresa Kitay, responded to Griffeath’s
letter and informed him that Creekside strictly enforces its no-smoking policy, but would
set up a designated smoking area away from the residential buildings to help Mr. Stein
6

Once Mr. Stein began complaining of smoking violations, it was clarified by Creekside owners that
“porch areas are either part of the ‘apartment’ leased by residents, or part of the ‘breezeway’ areas in
which smoking is also prohibited by the lease.” (Dkt. 54-19 at 4.) They clarified also that the “nosmoking” policy also included common areas of the property, not just the apartments and breezeways.
Dec. Cooper, ¶ 7. (Dkt. 45-3 at 3.) Once these clarifications were made, counsel for Creekside ensured
Mr. Stein that the prohibition would be enforced in the future. (Dkt. 54-19 at 4.)
7
Mr. Griffeath’s letter addressed also issues not raised in this matter, including violations of the Idaho
Clean Air Act.
MEMORANDUM DECISION AND ORDER - 8

feel more comfortable about his neighbors who smoke. (Dkt. 54-19 at 6.) The same day,
Mr. Stein visited the emergency room for “headache and hypertension brought on by his
being upset and physically and mentally exacerbated over the illegal smoking at
Creekside…” (Dkt. 54-7 at 5.) Mr. Stein alleges this was his third hospital visit after he
moved into his Creekside apartment. Id.
The Steins next sought assistance from the Intermountain Fair Housing Council
(IFHC) with a reasonable accommodation request to Creekside to enforce its no-smoking
policy. On September 17, 2013, IFHC investigator Sammy Grayson sent a letter to
Creekside explaining Mr. Stein’s need for a reasonable accommodation to have the nosmoking policy enforced. Dec. Cooper, Ex. 2. (Dkt. 45-3 at 21.) On September 22, 2013,
Kitay responded and informed Grayson that it was her position that he had not made a
“reasonable accommodation” request under the FHA, because Mr. Stein was not
requesting a change in the rules, policies, practices, or services.” (Dkt. 54-19 at 6.) She
explained that Creekside already had a no-smoking policy in place, and enforcement of
an established rule or lease provisions is not a “change.” Id. In Kitay’s letter, she
encouraged the Steins to report any smoking violations to management so proper action
could be taken promptly. Id.
The Steins then sought assistance from the University of Idaho Legal Aid Clinic.
(Dkt. 54-8 at 2-3.) On September 17, 2013, legal intern Joseph Hayes sent a letter to
Creekside demanding enforcement of the no-smoking policy in the lease. Id.
On about September 19, 2013, Creekside established a designated smoking area
with signage adjacent to the Creekside community center—an area a considerable
MEMORANDUM DECISION AND ORDER - 9

distance from the Stein’s apartment. See Dec. Cooper, Ex. 4—Map of Creekside. (Dkt.
45-3 at 26.) The Steins, however, were upset with the location of the designated smoking
area, as Mr. Stein alleged he could not access the community center amenities due to the
presence of second hand smoke. See Am. Compl. (Dkt. 30 at 14.) The Steins and their
legal intern worked together with Creekside to move the designated smoking area away
from the community center. HUD Final Investigative Report, p. 17. (Dkt. 2-4 at 17.) On
or about October 8, 2013, the designated smoking area was relocated to a grassy picnic
location away from the community center and away from the Steins’ apartment. Dec.
Hoagland, ¶ 5. (Dkt. 45-4 at 12.) Though involved in the relocation decision, the Steins
did not want a designated smoking area anywhere on the Creekside premises. Pl.
Response to Summary Judgment, § 1(A). (Dkt. 49 at 1.)
On October 8, 2013, Kitay responded to Hayes’s demand letter to enforce the nosmoking policy. She explained that, after clarifying the policy with management,
smoking on porches and anywhere adjacent to the residential buildings, including
common areas, was prohibited and would be strictly enforced moving forward. On
November 7, 2013, Creekside sent a “Reminder Notice” to all tenants reminding them
that smoking is prohibited in apartments and in all common areas. Dec. Cooper, Ex. 3.
(Dkt. 45-3 at 24.) The Steins allege they did not receive this notice. A second reminder
was issued to all tenants on October 20, 2014. Id. at Ex. 10. (Dkt. 43-3 at 54.) Over the
course of the Steins’ continued efforts to enforce the no-smoking policy, they made

MEMORANDUM DECISION AND ORDER - 10

several complaints to management regarding smoking violations on Creekside premises. 8
Creekside often followed up on the Steins’ complaints and issued warnings to tenants
who allegedly were smoking outside the designated smoking area. 9
Mr. Stein also personally investigated the alleged smoking violations by
photographing Creekside tenants he caught smoking. Mr. Stein alleges he took the
photographs under the direction of and instruction from the IFHC website. See Am.
Compl. (Dkt. 30 at 3). Several tenants complained to Creekside regarding the
photographs Mr. Stein was taking of them without their permission. On October 17,
2013, after having received at least three complaints from tenants regarding photographs
taken of them by Mr. Stein, Creekside issued a lease violation reminder to the Steins,
requesting that Mr. Stein stop taking photographs of the other tenants. Dec. Cooper, Ex.
9. (Dkt. 45-3 at 52.) Mr. Stein disregarded the notice and continued to take photographs
of the other tenants. On July 14, 2014, Creekside warned the Steins again to stop taking
photographs of the other tenants. Am. Compl., Ex. 2. (Dkt. 2-5 at 19.) However, Mr. Stein
continued taking photographs.
On two occasions Mr. Stein’s photographing activities resulted in the police being
called. First, on October 16, 2013, a tenant called the police to report Mr. Stein for taking

8

3/23/14, tenant #153, smoking on porch; 3/35/14 tenant #128 smoking in his car; 3/35/14 tenant #123
smoking in her car; 5/14/13-5/17/14, tenants #133 and #142 smoking together while Stein was out of
town; 5/27/14 tenant #128 smoking on his porch; 6/22/14 tenant #128 smoking on his lawn; 6/26/14
tenant #128 smoking on his lawn; 6/28/14 tenants #128 and #102; 6/30/14 #102 smoking on lawn; 7/1/14
tenant #102 smoking outside; 7/11/14 tenant #102 smoking outside; 7/13/14 tenant #102 smoking outside.
See Complaint, Ex. 2. (Dkt. 2-5 at 19.)
9
11/7/13, warning to tenant #133; 2/11/14, investigates tenant #127 for smoking in apartment; 4/8/14,
warnings to tenant #153 and #142; 6/2014, evicts #142 for smoking in apartment; and 6/2/14, waring to
tenant #102. See Dec. Cooper, Ex. 7. (Dkt. 45-3.)
MEMORANDUM DECISION AND ORDER - 11

photos of her without her permission. When the officer arrived, Mr. Stein alleges
Creekside’s manager, Scher, directed the officer to the Steins’ apartment. Am. Compl.
(Dkt. 30 at 3.) Second, on July 14, 2014, Mr. Stein called the police after he got into a
verbal altercation with another tenant after he took a photograph of the tenant smoking on
his lawn. The other tenant threatened to “beat [Mr. Stein’s] ass.” Am. Compl., ¶ 11. (Dkt.
30 at 8.) The record does not indicate whether Mr. Stein, or anyone else, was charged
with a crime in connection with either police incident.
B. Request for Parking Space
Creekside alleges the Steins have, and always have had, an assigned carport
located directly in front of the entry to their apartment. Dec. Cooper, ¶ 13. (Dkt. 45-3 at
60.) The Steins’ assigned parking spot has a painted sign above it indicating “Tenant
Parking Only.” Id. at ¶ 1. (Dkt. 45-3 at 65.)
On May 2, 2014, Mr. Stein requested a “designated assigned accessible parking
spot closest to my unit,” as an accommodation for his disability. Id. at ¶ 12. (Dkt. 45-3 at
60.) The Steins allege this was not a request for an assigned parking space, but rather, a
request for Creekside to memorialize in writing that the parking space (H-3) was theirs to
use, similar to how their lease agreement identifies their specific apartment unit as #132.
(Dkt. 49 at 5.) Mr. Stein alleges he worried Creekside might re-assign his parking spot to
a farther location in retaliation for his various complaints regarding smoking violations.
Id.
On May 6, 2014, Creekside discussed the parking request with the Steins.
Creekside confirmed that the parking space directly in front of the Steins’ unit was theirs,
MEMORANDUM DECISION AND ORDER - 12

and offered to install a sign to designate only they could park in their spot. The Steins
told Creekside that a sign would be unnecessary. In September of 2014, Creekside sent a
letter to the Steins to follow up on their parking space request. Creekside asked if any
circumstances had changed regarding Creekside’s previous offer to install a sign in front
of his parking space. The Steins did not respond or send any other requests to Creekside
regarding the parking space or signage of the space.
C. Request for Proper Installation of Shower Grab Bar 10
On May 2, 2014, Mr. Stein sent a letter to Creekside requesting a reasonable
modification for a grab bar to be installed in his shower/tub. Within a week, Creekside
installed the requested grab bar. On October 9, 2014, Mr. Stein sent a separate reasonable
accommodation request, this time requesting that proper reinforcements be installed
behind his shower grab bar consistent with the Housing and Urban Development (HUD)
Guidelines. (Dkt. 30 at 10.) The Steins, however, do not allege in their amended
complaint that either of them suffered any physical injury from the alleged improper
reinforcements, or that the installed shower grab bar is unsafe for its intended use. Id.
On November 18, 2014, the Steins hired an engineering service, Rim Rock
Consulting, Inc., to assess whether Creekside installed the proper reinforcements behind
their shower walls, and also to ensure that the installed shower grab bar was properly

10

A request for a grab bar is, technically, a request for a reasonable “modification” (i.e., a physical
change to the premises) under the Fair Housing Act, 42 U.S.C. § 3604(f)(3)(A), and would normally be
the responsibility of the person making the request. Section 504, however, requires that reasonable
modifications necessary for people with disabilities are in the nature of an “accommodation,” and must be
paid by the recipient of the federal financial assistance. Creekside, therefore, was obligated to install and
pay for the requested grab bar because it is a recipient housing provider under Section 504.
MEMORANDUM DECISION AND ORDER - 13

reinforced to the wall consistent with applicable HUD codes and regulations. Rim Rock
Consulting’s report provides in relevant part:
The Fair Housing Act Regulations, 24 CFR 100.205, Part 2 Chapter 6
regulates your facility and installation. The code addresses your installation
specifically and the code recognizes that; when installing a molded
fiberglass fixture there is a gap between the fixture and the wall. The code
requires additional blocking in order to fill the gap to ensure the “blocking
fit snugly and fill the designated space.” Based on the fact that the grab bar
will flex a little when forced it is apparent that the “gap blocking” was not
installed despite them feeling like [the grab bar] would support a significant
force without failure. The ADA requires that grab bars withhold a 250
pound load. Further testing would be required to verify if that standard is
met. Such testing would run the risk of failure and damage to the
tub/shower fixture.
….
My findings are that it is apparent that the “gap blocking” was not installed
and thereby the installation does not fully comply with 24 CFR 100.205,
Part 2 Chapter 6. Further, possibly destructive, investigations are required
to determine if all the specifications were met.
Rim Rock Consulting Report. (Dkt. 54-5.)
Two days later, Creekside sent Jackie Sayer, Branch Office Supervisor for the
Idaho Housing and Finance Association, and Rusty Koller, the director of construction
who supervised the construction of Creekside Senior Apartments, to investigate the
Steins’ concerns regarding the installation of their shower grab bar. Sayer found that the
grab bar was stable, solid, and served the purpose for which it is intended. During her
inspection, Mr. Stein allegedly told Sayer and Koller that his concern was not that the
grab bar was unsafe, but that, in his opinion, the grab bar was not installed precisely in
the way referenced in the FHA Design Manual. Koller further contends that treated

MEMORANDUM DECISION AND ORDER - 14

plywood was installed on the back of every shower unit during construction, including
the Steins’ unit, to allow for the later installation of a grab bar when needed.
During the inspection, both Sayer and Koller observed Mr. Stein standing in the
shower, grabbing the grab bar, and pulling and pushing it with force; fortunately, no
damage occurred, and the grab bar remained in place despite Mr. Stein’s efforts to tear it
off the wall.
D. Request for a Second Exit
The Steins allege they verbally complained to Creekside regarding the lack of a
second exit to their apartment, which the Steins believe is a design requirement of the
FHA. Mr. Stein alleges apartment manager Scher denied his request and told him “no,
you can crawl out the window.” Am. Compl. (Dkt. 30 at 5.)
II. Procedural Posture
In March of 2014, the Steins filed a complaint with the United States Department
of Housing and Urban Development (HUD) pursuant to the Fair Housing Act, 42 U.S.C.
§ 3610(a). The Steins’ complaint alleged that Creekside failed to provide them with a
reasonable accommodation by not enforcing the property’s no-smoking policy. After
conducting an investigation of the allegations made in the Steins’ complaint, HUD
dismissed the complaint on August 4, 2014, finding that “no reasonable cause exists to
believe that a discriminatory housing practice has occurred.” 11 HUD Determination of No
Reasonable Cause Report. (Dkt. 2-3.) Specifically, the report provided in relevant part:

11

The Steins submitted the HUD Determination of No Reasonable Cause Report and the HUD’s factual
findings. (Dkts. 2-3; 2-4; 2-5.) The Court does not rely on HUD’s conclusion of no reasonable cause, but
MEMORANDUM DECISION AND ORDER - 15

[T]here is insufficient evidence to conclude that Complainant’s request to
have an absolute smoking ban on the entire premises is reasonably needed
insofar as it is necessary to allow Complainant the full enjoyment of his
dwelling, even if it goes against the contractual obligations of Respondents
as stipulated in the lease. The Department does not have authority to
enforce non-compliance of lease provisions as these issues are beyond the
scope of its jurisdiction. Complainant’s request to enforce no-smoking
violations in or around other tenants’ units that are located well beyond the
reasonable distance from his own unit, including those where he witnessed
while driving his car, are not reasonably related to the use and enjoyment of
his own dwelling unit.
[T]he investigation revealed that Respondents did not deny or
unreasonably delay Complainants reasonable requests to enforce the nosmoking provision of the lease. Respondents provided sufficient evidence
in the record to conclude that there appeared to be a continuous interactive
process in responding to Complainant’s accommodation requests.
Furthermore, the record established that Respondents’ efforts to
accommodate Complainant went beyond Complainant’s dwelling area, as
they enforced his complaints on other tenants, provided at least two
additional notices to all of the tenants at the Property. Finally, the record
shows that Respondents worked with Complainant and his legal intern to
move the designated smoking area to another part of the property so that
Complainant can access the office, laundry, and mailboxes without having
to be subjected to the secondhand smoke. Therefore, there is insufficient
evidence to conclude that Complainant was denied a reasonable
accommodation under the Act.
Id. (Dkt. 2-3 at 9.) The Steins submitted a request for reconsideration. But, before HUD
could consider the Steins’ reconsideration request, they filed this action on October 8,
2014. 12
III. Summary Judgment Standard

includes the HUD decision to provide a thorough understanding of the procedural background of this
action.
12
According to documents submitted by the Steins, HUD denied the request for reconsideration on July
13, 2015. (Dkt. 54-2 at 10.)
MEMORANDUM DECISION AND ORDER - 16

Summary judgment is appropriate where a party can show that, as to any claim or
defense, “there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a). One of the principal purposes of
summary judgment “is to isolate and dispose of factually unsupported claims.” Celotex
Corp. v. Catrett, 477 U.S. 317, 323–24 (1986). It is “not a disfavored procedural
shortcut,” but is instead the “principal tool[ ] by which factually insufficient claims or
defenses [can] be isolated and prevented from going to trial with the attendant
unwarranted consumption of public and private resources.” Id. at 327. “[T]he mere
existence of some alleged factual dispute between the parties will not defeat an otherwise
properly supported motion for summary judgment.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 247–48 (1986). There must be a genuine dispute as to any material fact—a fact
“that may affect the outcome of the case.” Id. at 248. The Court must be “guided by the
substantive evidentiary standards that apply to the case.” Id. at 255.
The moving party is entitled to summary judgment if that party shows that each
issue of material fact is not or cannot be disputed. To show the material facts are not in
dispute, a party may cite to particular materials in the record, or show that the materials
cited do not establish the presence of a genuine dispute, or that the adverse party is
unable to produce admissible evidence to support the fact. Fed. R. Civ. P. 56(c)(1)(A) &
(B); Ransier v. United States, 2014 WL 5305852, at *2 (D. Idaho Oct. 15, 2014).
Rule 56(e)(3) authorizes the Court to grant summary judgment for the moving
party “if the motion and supporting materials—including the facts considered
undisputed—show that the movant is entitled to it.” The existence of a scintilla of
MEMORANDUM DECISION AND ORDER - 17

evidence in support of the non-moving party's position is insufficient. Rather, “there must
be evidence on which the jury could reasonably find for the [non-moving party].”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).
When cross-motions for summary judgment are filed, the Court must
independently search the record for factual disputes. Fair Hous. Council of Riverside
Cnty., Inc. v. Riverside Two, 249 F.3d 1132, 1136 (9th Cir. 2001). The filing of crossmotions for summary judgment—where both parties essentially assert that there are no
material factual disputes—does not vitiate the court's responsibility to determine whether
disputes as to material fact are present. Id.
3. Steins’ Motion for Summary Judgment (Dkt. 43)
On August 3, 2015, the Steins filed a one page motion for summary judgment,
requesting the Court “[e]xamine the record and determine whether any material questions
exist for the Judge to decide, as called for under Rule 56.” (Dkt. 43.) On August 17,
2015, the Steins filed an Affidavit in Support of their Motion for Summary Judgment.
(Dkt. 46.) The “affidavit” 13 merely reiterates the allegations made in the complaint. And,
while it makes reference to certain documents which may support the Steins’ claims,
these documents were not attached to this filing. 14
The Steins’ motion was not properly supported. It is not the duty of the Court to
search the record on its own to determine whether genuine issues of material fact exist, or
13

This document is improperly labeled as an “affidavit” as it is not notarized. See 2A C.J.S. Affidavits §
35. However, the document does qualify as a declaration as it is signed under penalty of perjury, and thus,
will be considered as such. See Fed. R. Civ. P. 56 (c)(1)(A).
14
Some of the referenced documents were later attached to the Steins’ response in opposition of
Creekside’s motion for summary judgment and are considered by the Court. (Dkt. 49.)
MEMORANDUM DECISION AND ORDER - 18

do not exist, in support of a party’s motion for summary judgment. Instead, the moving
party bears the burden of supporting his assertions by citing to the record, or by showing
how the material cited in the record does not establish the absence, or presence, of a
genuine issue of material fact. See Fed. R. Civ. P. 56(c).
The Steins did not provide the Court with any legal argument to support how they
have proved their claims against Creekside, or alternatively, how Creekside has failed to
satisfy its burden on any of its affirmative defenses. Accordingly, the Court will deny the
Steins’ motion for summary judgment but will consider materials submitted by the
Steins, if and as appropriate, when addressing Creekside’s cross motion.
4. Creekside’s Motion for Summary Judgment (Dkt. 45)
A. Failure to Accommodate Claims
The Steins’ allege three FHA and RA violations against Creekside for failure to
accommodate Mr. Stein’s disability. These violations include Creekside’s failure to: (1)
enforce the no-smoking policy in the lease agreement; (2) memorialize the Steins’
parking space in a written agreement; and (3) install the proper reinforcements behind
their shower wall to support the shower grab bar, pursuant to HUD regulations. For the
reasons explained more fully below, the Court finds no genuine issues of material fact
remain upon which a reasonable jury could conclude Creekside failed to accommodate
Mr. Stein’s disability on any of the Steins’ three claims.
i. Reasonable Accommodation Standard
The FHA makes it unlawful to “discriminate against any person in the terms,
conditions, or privileges of sale or rental of a dwelling, or in the provision of services or
MEMORANDUM DECISION AND ORDER - 19

facilities in connection with such dwelling, because of a handicap.” 42 U.S.C. §
3604(f)(2). Under 42 U.S.C. § 3604(f)(3)(B), discrimination 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.” Likewise, Section 504 of the RA guarantees that a “covered entity,
such as a [public housing authority], must provide reasonable accommodations in order
to make the entity’s benefits and programs accessible to people with disabilities.”
Sinisgallo v. Town of Islip Hous. Auth., 865 F. Supp. 2d 307, 337 (E.D.N.Y. 2012)
(internal quotations omitted). Accordingly, the analyses of reasonable accommodation
under the FHA and RA are conducted similarly. 15
To prevail on a failure to accommodate claim under the FHA, a plaintiff must
prove the following elements: (1) the plaintiff is a disabled person within the meaning of
the FHA; (2) the defendant knew or had reason to know of plaintiff’s disability; (3) a
reasonable accommodation of the disability “may be necessary” to afford the disabled
person an equal opportunity to use and enjoy the dwelling; and (4) defendant refused to
make the necessary accommodation. Giebeler v. M & B Associates, 343 F.3d 1143, 1147
(9th Cir. 2003).

15

“The House Committee Report on the [FHA] does state, however, that the interpretations of ‘reasonable
accommodation’ in the Rehabilitation Act (“RA”) regulations and case law should be applied to the
[FHA’s] reasonable accommodation provision.” Giebeler v. M & B Associates, 343 F.3d 1143, 1147 (9th
Cir. 2003)(applying RA regulations and case law in its interpretation of the FHA’s reasonable
accommodation provisions).

MEMORANDUM DECISION AND ORDER - 20

Here, Creekside does not dispute that Mr. Stein is disabled for the purposes of the
FHA, nor does it dispute that it knew of Mr. Stein’s disability. Rather, Creekside
challenges the last two prongs of the burden of proof the Steins’ must meet to proceed on
their failure to accommodate claims. The plaintiff bears the initial burden of proving the
elements of his FHA claim as to both reasonableness and necessity. Morgan v. Fairway
Nine II Condo. Ass'n Inc., 2015 WL 1321505, at *5-6 (D. Idaho Mar. 24, 2015).
“The reasonable accommodation inquiry is highly fact-specific, requiring case-bycase determination.” DuBois v. Ass'n of Apartment Owners of 2987 Kalakaua, 453 F.3d
1175, 1179 (9th Cir. 2006) (quoting Cal. Mobile Home Park, 107 F.3d at 1380). An
accommodation is reasonable under the FHA if it does not impose “undue financial and
administrative burdens” or constitute a “fundamental alteration in the nature of
[defendants' practice].” Giebler, 343 F.3d at 1157 (citation omitted). “[The plaintiff] must
show the existence of a reasonable accommodation; i.e., that a reasonable
accommodation was possible.” Morgan, 2015 WL 1321505, at *5-6. “Once that initial
showing is made, the Defendants must show that the accommodation is unreasonable.”
Id.
As to the “necessary” element, the accommodation sought must be “necessary to
afford [the claimant] full enjoyment of the premises”... or “equal opportunity to use and
enjoy a dwelling.” 42 U.S.C. § 3604(f)(3) (A & B). “An accommodation is necessary if
there is evidence ‘showing that the desired accommodation will affirmatively enhance a
disabled plaintiff's quality of life by ameliorating the effects of the disability.’” Morgan,

MEMORANDUM DECISION AND ORDER - 21

2015 WL 1321505, at *5-6 (citing Dadian v. Vill. of Wilmette, 269 F.3d 831, 838 (7th
Cir. 2001) (internal citation and quotation marks omitted)).
Not every practice that creates a general inconvenience or expense to a disabled
person must be accommodated. Wisconsin Cmty. Servs., Inc. v. City of Milwaukee, 465
F.3d 737, 749 (7th Cir. 2006). Rather, to “prove that an accommodation is necessary,
‘[p]laintiffs must show that, but for the accommodation, they likely will be denied an
equal opportunity to enjoy the housing of their choice.’” Giebler v. M & B Assocs., 343
F.3d 1143, 1155 (9th Cir. 2003) (quoting Smith & Lee Assocs. v. City of Taylor, 102 F.3d
781, 795 (6th Cir. 1996)). In other words, “[w]ithout a causal link between defendants'
[practice] and the plaintiff's injury, there can be no obligation on the part of defendants to
make a reasonable accommodation.” Id. (quoting United States v. California Mobile
Home Park Mgmt. Co., 107 F.3d 1374, 1380 (9th Cir. 1997)).
ii. Request to Enforce Creekside’s No-Smoking Policy
The Steins allege Creekside failed to accommodate Mr. Stein’s disability by not
enforcing the no-smoking policy as set forth in the lease agreement. Mr. Stein alleges his
disability is exacerbated by exposure to second hand cigarette smoke. Though the lease’s
no-smoking provision prohibits smoking in apartments and “breezeways,” the Steins
interpret the no-smoking policy as a smoking ban on the entirety of the Creekside
premises, and contends enforcement of the no-smoking policy on the entire property,
including the “designated smoking area,” is necessary for Mr. Stein to enjoy an equal
opportunity of the use of his apartment and other common amenities on the Creekside
property.
MEMORANDUM DECISION AND ORDER - 22

Creekside challenges the Steins’ failure to accommodate claim regarding the nosmoking policy on two grounds. First, Creekside contends it did not fail to accommodate
Mr. Stein with regard to his smoking concern, but rather, Creekside took all appropriate
and reasonable steps to enforce its no-smoking policy to accommodate him. Second,
Creekside argues Mr. Stein’s request for a complete smoking ban on the premises is
unnecessary for him to have an equal opportunity to use and enjoy his apartment.
With regard to reasonableness, assuming arguendo that Mr. Stein’s general
request for Creekside to enforce its no-smoking policy was reasonable, Mr. Stein is not
entitled to the accommodation of his choosing—a smoking ban on the entire Creekside
Apartment premises. Here, in an effort to accommodate Mr. Stein, Creekside established
a designated smoking area so that Mr. Stein could feel more comfortable about his
neighbors who smoke by avoiding the single designated smoking area on the premises.
Creekside even went so far as to re-locate the designated smoking area to a location not
utilized by Mr. Stein and that is far from the Steins’ apartment and Creekside community
center. This is an alternative accommodation and modification of Creekside’s policies
which would effectively meet Mr. Stein’s disability needs to limit his exposure to second
hand smoke.
Further, the Steins fail to allege facts or set forth evidence to support a position
that, but for an entire smoking ban on Creekside premises, Mr. Stein is denied the equal
opportunity to use and enjoy his dwelling and common areas. The Steins have offered
evidence of other tenants smoking on the property, but fail to argue how Creekside’s non-

MEMORANDUM DECISION AND ORDER - 23

enforcement of these alleged smoking violations interfered with Mr. Stein’s use and
enjoyment of his apartment or Creekside amenities. 16
The Court concludes Creekside has succeeded, based on the record before the
Court, in establishing the absence of a genuine issue of material fact with regard to the
reasonableness and necessary elements of the Steins’ failure to accommodate claim.
Accordingly, the Court needs not reach Creekside’s argument challenging the fourth
element of the Steins’ claim—Creekside’s alleged failure to make the specific
accommodation requested. Summary judgment will be granted in favor of Creekside
regarding this failure to accommodate claim.
iii. Request for Parking Space in Writing
The Steins allege that Creekside failed to accommodate Mr. Stein’s disability by
not assigning him a written designated parking space nearest to his apartment unit. In his
reply, Mr. Stein clarifies his request was not a request for an assigned parking space, but
rather, a request to Creekside to memorialize in writing that his parking space (H-3) was
designated for his exclusive use, similar to how his lease agreement identifies his specific
apartment unit. Response. (Dkt. 49 at 5.)
The Steins allege Mr. Stein worried Creekside might re-assign his parking space to
another location in retaliation for his various smoking violation complaints. Id. He
contends also that it was Creekside’s practice to use parking spaces as “leverage” or to

16

The Steins allege in their affidavit in support of summary judgment that the new designated smoking
area is “occasionally used for family recreational sports such as [badminton], golf practice and a
grandchildren’s play area;” however, the Steins do not allege that they personally used or intended to use
the area for those, or any activities. See (Dkt. 46 at 5.)
MEMORANDUM DECISION AND ORDER - 24

reward tenants for overlooking lease violations. Creekside challenges the Steins’ claim on
the ground that the accommodation request for a written parking space agreement was
not motivated by any disability related need; thus, his request is not one for a reasonable
accommodation or otherwise.
Mr. Stein’s own admission in his response that his request for a written parking
space agreement was not motivated by any disability-related need demonstrates his
request was unreasonable under the FHA. The Steins offer no evidence to support any
retaliation allegation with regard to Creekside’s failure to provide a written agreement for
the parking space. The Court notes also that, in addition to failing to demonstrate
reasonableness of his request for a written parking space agreement, the Steins also failed
to demonstrate the necessity of this requested accommodation. See Giebler v. M & B
Assocs., 343 F.3d 1143, 1155 (9th Cir. 2003) (“Without a causal link between defendants'
[practice] and the plaintiff's injury, there can be no obligation on the part of defendants to
make a reasonable accommodation”). Nonetheless, Creekside attempted to accommodate
Mr. Stein by offering to install a sign above the assigned parking space to let other
tenants know the spot was for the Steins’ exclusive use. The Steins declined the offer.
Accordingly, the Court concludes Creekside has succeeded, based on the record
before the Court, in establishing the absence of a genuine issue of material fact with
regard to the reasonableness and necessary elements of this failure to accommodate
claim.
iv. Request for Shower Grab Bar

MEMORANDUM DECISION AND ORDER - 25

The Steins contend Creekside failed to accommodate Mr. Stein’s disability related
request to have the proper backing installed in his shower/tub wall as required by the
FHA and HUD Guidelines. 17 Creekside contends reinforcements were installed during
the initial construction of the apartment complex. And further, Creekside argues the
HUD’s Guidelines regarding the installation of reinforcements are not mandatory, and a
deviation from the Guidelines does not result in a discrimination violation under the FHA
when an alternative installation method used to install grab bar reinforcements renders
the grab bar safe for its intended use—which Creekside contends is the case here.
The FHA defines discrimination as the failure to design and construct covered
multifamily dwellings, designed for first occupancy after March 13, 1991, in such a
manner that:
[A]ll premises within the dwellings contain the following features of
adaptive design:
….
[R]einforcements in bathroom walls to allow later installation of
grab bars
42 U.S.C. § 3604(f)(3)(C).
“Congress authorized the Secretary of HUD to promulgate regulations to
implement the FHA and provide technical assistance to help achieve the Act's
accessibility requirements.” Memphis Ctr. for Indep. Living v. Richard & Milton Grant
Co., 2004 WL 6340158, at *3 (W.D. Tenn. June 29, 2004); § 3601, 3604(f)(5)(C).

17

Section 504 has no specific design and construction standards for grab bars. HUD’s regulations merely
require that covered housing be designed and constructed so that it is “readily accessible to and usable by
individuals with” disabilities. 24 C.F.R. §8.22(a).

MEMORANDUM DECISION AND ORDER - 26

Pursuant to this authority, HUD issued Guidelines to implement the FHA’s design and
construction requirements. See 56 Fed.Reg. 9473–9515 (Mar. 6, 1991).
“The purpose of the Guidelines is to describe minimum standards of compliance
with the specific accessibility requirements of the Act.” 56 Fed.Reg. at 9476. However,
the Guidelines are not mandatory, and failure “to meet the requirements as interpreted in
the Guidelines does not constitute unlawful discrimination” pursuant to the FHA. 18
Memphis, 2004 WL 6340158, at *3; 56 Fed.Reg. at 9476. This leaves builders the option
to depart from the Guidelines and seek alternate ways to demonstrate compliance with
the FHA’s accessibility requirements. 56 Fed.Reg. at 9473. However, if a construction
feature is not compliant with the HUD Guidelines, then a housing provider defending an
FHA violation must demonstrate that the construction feature is nonetheless “reasonably
accessible and usable for most physically disabled people.” Memphis, 2004 WL 6340158,
at *3.
The Court finds a genuine issue of fact exists as to whether the Steins’ shower
wall reinforcements are compliant with the HUD Guidelines; however, issue of fact is not
material. The Rim Rock report submitted by the Steins opines that the proper “gap
blocking” was not installed to the back of Steins’ fiberglass shower/tub wall pursuant to
the HUD Guidelines. The report does not allege that no reinforcements were installed,
only that the proper reinforcements, as recommended by the HUD Guidelines, were not

18

The Guidelines provide that compliance may be achieved by meeting a ‘comparable standard’—i.e.,
one that provides ‘access essentially equivalent to or greater than required by ANSI A117.1.’” Memphis,
2004 WL 6340158, at *4; 54 Fed.Reg. 3243.
MEMORANDUM DECISION AND ORDER - 27

installed. Koller, on the other hand, asserts that plywood reinforcements were installed
during the initial construction to support installation of the grab bar as requested by the
Steins.
The Court need not determine whether the existing reinforcements are compliant
with the HUD regulations. Even assuming the reinforcements in Steins’ shower /tub wall
are not compliant with the HUD Guidelines, no genuine issue of material fact exists to
rebut Creekside’s argument that the shower grab bar is “reasonably accessible and usable
for most physically disabled people.” Memphis, 2004 WL 6340158, at *3.
Sayre, the Idaho Branch Officer Supervisor for the Idaho Housing and Finance
Association, inspected the Steins’ shower grab bar and found the grab bar to be
“completely stable, solid, and serves the purpose it is intended for.” Dec. Sayre, Ex. 1.
(Dkt. 45-5 at 6.) The Steins do not allege or offer evidence to refute that the
reinforcements, which may or may not be complaint with the HUD Guidelines, made the
shower grab bar unsafe for its intended use. 19 In fact, during Sayer’s and Koller’s
investigation of the Steins’ shower grab bar, they witnessed Mr. Stein pulling and
pushing on the grab bar with force, and the grab bar still remained affixed to the shower
wall. Accordingly, the Court finds no genuine issues of material fact exist upon which a
reasonable jury could conclude that the Steins’ shower grab bar is not safe for its
intended use.
19

The Steins’ response in opposition to Creekside’s motion for summary judgment makes two new
arguments as to why the shower grab bar is not compliant; they allege: (1) only one grab bar was
installed, when two should have been installed; and (2) placement of the grab bar is too high. The Steins
may not allege additional failure to accommodate claims for requests not made to Creekside previously at
this stage in the litigation.
MEMORANDUM DECISION AND ORDER - 28

Further, the Court finds the Steins’ request for the installation of HUD compliant
reinforcements fails also because the request is unreasonable under the FHA. The Rim
Rock report indicates that, to determine whether proper reinforcements were installed
behind Steins’ shower/tub wall, it likely would require destruction of the shower itself.
To destroy the Steins’ shower to confirm compliance or non-compliance of the HUD
Guidelines would constitute an undue financial burden on Creekside, especially when
considering the shower grab bar is safe for its intended use. See Giebeler v. M & B
Associates, 343 F.3d 1143, 1147 (9th Cir. 2003) (An accommodation is reasonable under
the FHA if it does not impose “undue financial and administrative burdens” or constitute
a “fundamental alteration in the nature of [defendants' practice].”). For all of these
reasons, summary judgment will be granted in favor of Creekside on this failure to
accommodate claim.
B. Retaliation Claims
The Steins allege Creekside retaliated against Mr. Stein on three occasions in
violation of the FHA and RA. Specifically, they allege Creekside retaliated against Mr.
Stein by: (1) establishing a designated smoking area on Creekside premises; (2) calling
the police for taking photographs of neighbors; and (3) providing the Steins a notice to
cease taking photographs of other Creekside residents. For the reasons that follow, the
Court finds there is no genuine issue of fact upon which a reasonable jury could conclude
that Creekside retaliated against Mr. Stein.
i. Standard of Law

MEMORANDUM DECISION AND ORDER - 29

It is unlawful under the FHA to “coerce, intimidate, threaten, or interfere with any
person... on account of his having aided or encouraged any other person in the exercise or
enjoyment of, any right granted or protected by section... 3604....” 42 U.S.C. § 3617.
To establish a prima facie case of retaliation case under the FHA, “the plaintiff
must prove that ‘(1) he engaged in a protected activity; (2) the defendant subjected him to
an adverse action; and (3) a causal link exists between the protected activity and the
adverse action.’” Idaho Aids Found., Inc. v. Idaho Hous. & Fin. Ass'n, 422 F. Supp. 2d
1193, 1204 (D. Idaho 2006) (citing Walker v. City of Lakewood, 272 F.3d 1114, 1128
(9th Cir.2001)). A prima facie case of retaliation under the RA requires the same
showing; accordingly, the analysis of retaliation under the FHA and RA are treated the
same. See Coons v. Sec'y of U.S. Dep't of Treasury, 383 F.3d 879, 887 (9th Cir. 2004)
(elements of retaliation pursuant to RA).
If successful, “the burden shifts to the defendant to articulate a legitimate
nondiscriminatory reason for its decision.” Walker, 272 F.3d at 1128; see also Sedivy v.
City of Boise, 2006 WL 1793607, at *5 (D. Idaho June 28, 2006) “If the defendant
articulates such a reason, the plaintiff bears the ultimate burden of demonstrating that the
reason was merely a pretext for a discriminatory motive.” Id.
ii. Establishment and Relocation of Designated Smoking Area
The Steins allege two retaliation claims with respect to the designated smoking
area. First, they allege Creekside retaliated against Mr. Stein by establishing a designated
smoking area on Creekside premises because of the various requests he made to enforce
the no-smoking policy in the lease. Second, the Steins allege Creekside retaliated against
MEMORANDUM DECISION AND ORDER - 30

Mr. Stein by “reinstating” the designated smoking area to another location after they
requested the no-smoking policy be enforced. The alleged “protected activities” and
“adverse actions” for each claim are the same. The Steins contend Mr. Stein participated
in the protected activity of making verbal requests to enforce Creekside’s no-smoking
policy. Am. Compl, ¶¶ 4, 6. (Dkt. 30 at 3-5.) And, he contends “the adverse action” was
the original establishment of a designated smoking area near the community center and
the later reestablishment of the area’s second location. Id.
Creekside does not deny that Mr. Stein’s concerns about the property’s nosmoking policy motivated the establishment and relocation of the designated smoking
area from its original location. Rather, Creekside contends both actions were done in an
attempt to assist and accommodate Mr. Stein’s disability, not to retaliate against him for
making his complaints in the first instance.
Following complaints from Mr. Stein to enforce Creekside’s no-smoking policy,
particularly against his next door neighbor, Creekside established a designated smoking
area near the community center in an effort to “help Stein feel more comfortable about
those neighbors who choose to smoke outside their apartment homes.” (Dkt. 54-19 at 6.)
Mr. Stein complained about the location of the designated smoking area on account of its
close proximity to the community center, which contains several amenities Mr. Stein
contends he utilizes.
In consideration of Mr. Stein’s complaint about the designated smoking area’s
location, Creekside moved the smoking area away from the community center amenities.
Prior to choosing the new location, Creekside consulted with on-site staff to confirm that
MEMORANDUM DECISION AND ORDER - 31

the new location would be accessible to all, and would not pose a hardship on those
residents who wished to avoid secondhand smoke. Further, the record indicates that
Creekside sought input also from Mr. Stein on the relocation of the smoking area, and
that Stein approved the location. 20
Based on the above facts, the Court concludes Creekside’s establishment and later
relocation of the designated smoking area was done in an effort to accommodate Mr.
Stein’s disability and finds further, there is no genuine issue of material fact upon which a
reasonable jury could conclude that Creekside’s establishment and relocation of the
designated smoking area constituted retaliation for Mr. Stein’s requests to enforce the nosmoking policy. Accordingly, the Court will grant summary judgment in favor of
Creekside with respect to these retaliation claims.

iii. Calling the Police
The Steins allege Creekside retailed against Mr. Stein by reporting him to the
police for taking photographs of other Creekside tenants he caught smoking on the
premises. The Steins allege Mr. Stein was engaged in the protected activity of
photographing other residents and the “adverse action” committed by Creekside was that
Creekside’s former on-site manager, Scher, contacted the local police authorities and
“direct[ed them] to my apartment and refer[ed] to me as a criminal stalker, upon
20

The HUD Report contains a summary of an interview with Mr. Stein’s legal intern. Creekside’s
attorney, Kitay, sent Mr. Stein’s legal intern a map with the proposed location to relocate the designated
smoking area. The legal intern reported he reviewed the proposed location with Stein, and “because there
did not appear to be anywhere else that the smoking area could have been placed where it wouldn’t affect
others[], he told Ms. Kitay that the proposed place would work.” HUD Final Investigative Report. (Dkt.
2-4 at 17.) The Steins do not contest this fact.
MEMORANDUM DECISION AND ORDER - 32

receiving a complaint from the tenant in apt. #102… who I had photographed smoking on
her porch in public view.” Am. Compl., ¶ 3. (Dkt. 30) Creekside denies that any of its
agents reported the Steins to the police for any reason.
The HUD findings contain an interview from Moscow Police Officer, Mitch
Running, who responded to the incident at issue. According to the report (which was
submitted by the Steins as an exhibit to both their complaint and their opposition to
summary judgment), a tenant at the property called the police—not Creekside or any of
its agents. (Dkt. 54-8.) The Steins have not produced evidence to rebut this fact.
Accordingly, the Court concludes Creekside has succeeded, based on the record
before the Court, in establishing the absence of a genuine issue of material fact with
regard to the adverse action element of this retaliation claim asserted by the Steins.
iii. Demand letters re: photographing tenants
The Steins allege Creekside’s notice sent to them requesting that Mr. Stein stop
photographing other residents without their consent constitutes unlawful retaliation under
the FHA. The Steins allege Mr. Stein’s protected activity was taking photographs of his
neighbors, and that the adverse action was the notice sent to him by Creekside to stop
taking the photographs. Creekside argues taking photographs is not a protected activity,
and also that the issuance of a lease violation reminder does not constitute coercion,
threats, or interference, and thus, is not an adverse action.
The particular notice sent to Steins provides the following:
Dear Tenants:

MEMORANDUM DECISION AND ORDER - 33

Management is in receipt of formal written complaints stating you have
been going around the other side of the apartment complex taking pictures
of some of the tenants without their consent. It’s also been brought to our
attention that your next door neighbor has numerously asked you to please
stop spying on her.
Please allow us to amicably remind you that we have evacuated [sic] your
complaints and concerns about smoking policies at Creekside Seniors.
Michelle has walked with you a couple of times to your next door neighbor
just to find there is no evidence of her smoking in her unit. She has
explained and shown to you that there is no vent connection between her
apartment and yours and that the ashtray you once mentioned as evidence
of her smoking was still seal[ed] tight.
We want to thank you and let you know we appreciate your tenancy but
that we ask you join us in our efforts to keep Creekside Seniors a clean and
safe place of residence where a good neighbor atmosphere is prevalent.
Thank you,
Creekside Seniors
Dec. Cooper, Ex. 9. (Dkt. 45-3 at 52.)
The Court finds no reasonable jury could conclude that the issuance of this notice
qualifies as coercion, intimidation, a threat, or interference by Creekside regarding Mr.
Stein’s photography, regardless of whether his photographing other tenants could be
construed as a protected activity. 21 Accordingly, the Court will grant summary judgment
in favor of Creekside with respect to this retaliation claim.
The Steins allege also that their reporting of “102+ incidences of illegal smoking”
created an “atmosphere of resentment from the 8 to 10 tenant smokers against” them.
Creekside’s tenants’ resentment of Mr. Stein for taking their photographs without
21

Creekside issued this notice only after it received three tenant complaints regarding Mr. Stein’s
photographs. Mr. Stein continued to take numerous photographs after this notice was issued.
Accordingly, the notice cannot be considered an adverse action for the protected activity of taking
photographs.
MEMORANDUM DECISION AND ORDER - 34

permission is not an adverse action on the part of Creekside, the only named defendant in
this action. Accordingly, the Court will grant summary judgment in favor of Creekside
with respect to this retaliation claim as well.
C. Lack of Secondary Exits
The Steins allege they made a reasonable request for accommodation for a second
exit to be constructed for their apartment to meet a FHA compliance requirement. Am.
Compl. (Dkt. 30). Stein’s interpretation of the FHA is misplaced. The FHA provides in
relevant part:
In connection with the design and construction of covered multifamily
dwellings for first occupancy after the date that is 30 months after
September 13, 1988, a failure to design and construct those dwellings in
such a manner that:

[A]ll premises within such dwellings contain the following features
of adaptive design:
[A]n accessible route into and through the dwelling
42 U.S.C.A. § 3604. This requirement is to ensure “doors into and within covered units
are sufficiently wide to allow passage by people in wheelchairs.” Nat'l Fair Hous. All.,
Inc. v. Hunt Investments, LLC, 2015 WL 4362864, at *1 (E.D. Va. July 14, 2015); see
also United States v. Pac. Nothwest Elec., Inc., 2003 WL 24573548, at *14 (D. Idaho
Mar. 21, 2003). Nowhere in the FHA does it require a covered unit to have a second exit.
Accordingly, the Steins’ claim fails as a matter of law and summary judgment will be
granted in favor of Creekside on this claim for relief.
ORDER
MEMORANDUM DECISION AND ORDER - 35

NOW THEREFORE IT IS HEREBY ORDERED:
1) Plaintiffs’ Motion to Compel (Dkt. 40) is DENIED;
2) Plaintiffs’ motion to consider unanswered admissions as admitted (Dkt. 48)
is DENIED as MOOT;
3) Plaintiffs’ Motion for Summary Judgment (Dkt. 43) is DENIED; and
4) Defendant’s Motion for Summary Judgment (Dkt. 45) is GRANTED.

March 04, 2016

MEMORANDUM DECISION AND ORDER - 36