Worthington v. Golden Oaks Apartments et al

Filing 29

OPINION AND ORDER denying 22 RULE 12(f) MOTION to Strike 21 Reply to Response to Motion filed by Ann Worthington, granting 13 MOTION to Dismiss for Lack of Jurisdiction MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by Housing Authority o f South Bend, 9 grants in part and denies in part MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by Golden Oaks Apartments, and denying 23 MOTION for Summary Judgment converted from Motion to Dismiss by Def. Housing Authority of South Bend filed by Ann Worthington. Party Housing Authority of South Bend terminated. Attorney Michael P Palmer terminated. Signed by Judge Robert L Miller, Jr on 10/4/2011. (kds)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
ANN WORTHINGTON,
Plaintiff
vs.
GOLDEN OAKS APARTMENTS
and HOUSING AUTHORITY OF
SOUTH BEND,
Defendants

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CAUSE NO. 3:11-CV-223 RM

OPINION and ORDER
This cause comes before the court on a motion to dismiss filed by Golden
Oak Village Limited Partnership, a motion to dismiss filed by the Housing
Authority of South Bend, Ms. Worthington’s motion to strike the Housing
Authority’s reply brief, and her motion to convert the Housing Authority’s motion
to dismiss to one for summary judgment. The motions are all ripe for review.

FACTS
Ann Worthington’s complaint is based on her claim that she has been
threatened with eviction from the apartment she has leased at Golden Oak Village
for the past eighteen years, an apartment where she wants to remain. According
to Ms. Worthington, she “is an older adult with only Social Security income,” “has
limitations to major life activities as a result of arthritis and auto-immune
disease,” “is under the care of a physician,” Compl., ¶ 4, and is “an otherwise

qualified individual” with a handicap and/or a disability, Compl., ¶¶ 19, 20, 21.
Ms. Worthington says that based on her complaints about the lack of heat in her
building (which she claims exacerbates her arthritis), code enforcement and
Section 8 inspectors inspected the complex, “and the complex . . . encountered
difficulties because of the inspection.” Compl., ¶¶ 12-13. Ms. Worthington claims
Golden Oak blamed her for the inspection and criticized her for speaking to other
tenants about problems at the complex.
Ms. Worthington alleges that after the inspection, Golden Oak refused to
renew her lease and demanded that she vacate her apartment, which amounted
to harassment, discrimination, and retaliation on the basis of her disability, and
the Housing Authority threatened to terminate her eligibility for Section 8 benefits
and advised her to transfer her Section 8 voucher to another Section 8 landlord,
all in violation of the Fair Housing Act, 42 U.S.C. § 3604(f) and implementing
rules, the Rehabilitation Act, 29 U.S.C. § 794 and implementing rules, Titles II and
III of the Americans with Disabilities Act, 42 U.S.C. § 12181 et seq. and
implementing rules, the due process and equal protection clauses of the
Fourteenth Amendment to the United States Constitution, Article I, § 23 of the
Indiana Constitution, and Indiana law. She seeks compensatory and exemplary
damages, attorney fees, a declaratory judgment “setting forth the rights and
responsibilities of the parties,” an injunction preventing Golden Oaks from evicting
her and the Housing Authority from terminating her eligibility for Section 8
benefits, and a determination by the court as to whether the Housing Authority
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“is operating legally with a proper board of commissioners as required by state
law.”

PROCEDURAL MOTIONS
As an initial matter, the court recognizes that the Housing Authority’s
motion to file its reply brief instanter has been granted and that before that ruling
was issued Ms. Worthington filed a motion to strike the late filing, but because the
court finds that the Housing Authority demonstrated good cause for the late filing
of its brief, the court denies Ms. Worthington’s motion to strike. Ms. Worthington
also has filed a motion to convert the Housing Authority’s motion to dismiss to one
for summary judgment. Even though the court can consider additional documents
when faced with a jurisdictional argument, see Casey v. Guthrie, No. 09-CV-951,
2010 WL 1657387, at *1 n.4 (S.D. Ill. Apr. 22, 2010) (“it is well-settled that a court
may look outside the complaint and consider other evidence when ruling on a
motion to dismiss made pursuant to Federal Rule of Civil Procedure 12(b)(1)”),
reliance on the documents attached to the Housing Authority’s reply brief isn’t
needed to decide the motion to dismiss, so the court denies Ms. Worthington’s
request that the court convert that motion to one for summary judgment.

HOUSING AUTHORITY’S MOTION TO DISMISS

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The Housing Authority has moved to dismiss Ms. Worthington’s complaint
pursuant to Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter
jurisdiction because, the Housing Authority says, Ms. Worthington’s claims aren’t
ripe, she lacks standing to bring her claims, and she’s presented no actual
controversy that would warrant a declaratory judgment. The Housing Authority
also moves to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6),
arguing that Ms. Worthington hasn’t properly alleged facts showing that she
suffers from a disability, that the Housing Authority knew of the alleged disability,
or that the Housing Authority intentionally discriminated against her based on her
disability, and the complaint doesn’t contain any supporting facts relating to how
her due process rights were violated.
Federal Rule of Civil Procedure 12(b)(1) authorizes dismissal of complaints
that bring no actionable claim within the subject matter jurisdiction of the federal
courts. The court must “accept as true all well-pleaded factual allegations and
draw all reasonable inferences in favor of the plaintiff,” yet, if necessary, may “look
beyond the jurisdictional allegations of the complaint and view whatever evidence
has been submitted on the issue to determine whether in fact subject matter
jurisdiction exists.” St. John’s United Church of Christ v. City of Chicago, 502
F.3d 616, 625 (7th Cir. 2007) (internal quotations and citation omitted). A federal
court must assure itself that it has jurisdiction over the subject matter of a case
before it can proceed to take any action on the merits. See Warth v. Seldin, 422
U.S. 490, 498 (1975) (“[T]he threshold question in every federal case [is]
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determining the power of the court to entertain the suit.”); Petruska v. Gannon
Univ., 462 F.3d 294, 302 (3d Cir. 2006) (“At issue in a Rule 12(b)(1) motion is the
court’s very power to hear the case.”). The party asserting jurisdiction bears the
burden of demonstrating subject matter jurisdiction by competent proof. Thomas
v. Gaskill, 315 U.S. 442, 446 (1942); Sprint Spectrum, L.P. v. City of Carmel, Ind.,
361 F.3d 998, 1001 (7th Cir. 2004). A court must dismiss an action without
reaching the merits if it concludes there is no jurisdiction. Capitol Leasing Co. v.
F.D.I.C., 999 F.2d 188, 191 (7th Cir. 1993).

Ripeness
The existence of a case and controversy is a prerequisite for the exercise of
federal judicial power under Article III. “One important element of the ‘case’ or
‘controversy’ is satisfying the ripeness doctrine, which determines when a party
may go to court.” Sprint Spectrum L.P. v. City of Carmel, Ind., 361 F.3d 998, 1002
(7th Cir. 2004) (citation omitted). The prudential concern underlying ripeness “is
to prevent the courts, through avoidance of premature adjudication, from
entangling themselves in abstract disagreements.” Abbott Labs. v. Gardner, 387
U.S. 136, 148 (1967). Deciding whether a claim is ripe requires the court “‘to
evaluate both the fitness of the issues for judicial decision and the hardship to the
parties of withholding court consideration.’” Texas v. United States, 523 U.S. 296,
300-301 (1998) (quoting Abbott Labs. v. Gardner, 387 F.3d 136, 149 (1967)). “A
claim is not ripe for adjudication if it rests upon ‘contingent future events that
5

may not occur as anticipated, or indeed may not occur at all.’” Texas v. United
States, 523 U.S. at 300 (quoting Thomas v. Union Carbide Agricultural Prods. Co.,
473 U.S. 568, 580-581 (1985)); see also Maryland Cas. Co. v. Pacific Coal & Oil
Co., 312 U.S. 270, 273 (1941) (“Basically, the question in each case is whether the
facts alleged, under all the circumstances, show that there is a substantial
controversy, between parties having adverse legal interests, of sufficient
immediacy and reality to warrant the issuance of a declaratory judgment.”);
Hinrichs v. Whitburn, 975 F.2d 1329, 1333 (7th Cir. 1992) (“Cases are unripe
when the parties point only to hypothetical, speculative, or illusory disputes as
opposed to actual, concrete conflicts.”). “Ripeness is, essentially, a question of
timing.” Sprint Spectrum v. City of Carmel, 361 F.3d at 1002.
Ms. Worthington argues that her claims against the Housing Authority meet
these ripeness criteria: she says her allegations are explicit and not abstract, and
the hardship she will suffer “is self-evident” from her complaint. Ms. Worthington
says the notice she received from the Housing Authority – informing her that if
Golden Oak Village evicts her, she will lose her Section 8 benefits unless she
relocates to another Section 8 tenancy – constitutes a threat by the Housing
Authority to terminate her Section 8 benefits “for no reason other than the Golden
Oak threatened eviction.” Resp., at 3. She explains that she wants to remain in
her apartment and has few other housing options available to her. Ms.
Worthington maintains the Housing Authority’s ripeness challenge “ignores the
reality of [her] situation. She is an impoverished older adult with disabilities
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threatened with loss of her Section 8 benefits. Withholding judicial review of [the
Housing Authority’s] unequivocal action risks imposing hardship on this
vulnerable plaintiff.” Resp., at 4.
The Housing Authority explains that HUD regulations govern all actions
relating to the termination of Section 8 benefits, see 24 C.F.R. § 982.552, and
provide that before Ms. Worthington’s benefits could be terminated, she would be
given an opportunity for an informal hearing, see 24 C.F.R. § 982.555. The
Housing Authority notes Ms. Worthington’s Section 8 benefits haven’t been
terminated and no termination proceedings have been instituted. The Housing
Authority explains further that its contract to provide Section 8 benefits runs with
the lease: “when a Section 8 participant’s lease ends, so does the Housing
Authority’s contract to pay Section 8 benefits. 24 C.F.R. § 982.451(a)(2) (“The term
of the [Housing Assistance Payment or “HAP”] contract is the same as the term of
the lease.”).” Deft. Br., at 7. See also 24 C.F.R. § 982.311(a) (“Housing assistance
payments are paid to the owner in accordance with the terms of the [housing
assistance payment] contract. Housing assistance may only be paid to the owner
during the lease term, and while the family is residing in the unit.”). The Housing
Authority says Ms. Worthington hasn’t been denied Section 8 benefits or been
terminated from the program, and adds that even if Golden Oak evicts her, she
could continue to receive Section 8 benefits if she meets the requirements and
other obligations of the program, see, e.g., 24 C.F.R. § 982.1; 24 C.F.R. § 982.551,
and complies with the program’s process for moving, see 24 C.F.R. § 982.314.
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Ms. Worthington was living in her Golden Oak Village apartment when she
filed her complaint. She hasn’t alleged or argued that the Housing Authority has
stopped making any Section 8 payments on her behalf, has denied her any
benefits to which she is entitled, has initiated proceedings to terminate her
eligibility for Section 8 benefits, or is responsible for Golden Oak’s threat to evict
her. The allegations of the complaint and Ms. Worthington’s arguments in
response to the motion to dismiss establish that her claims relate to future action
the Housing Authority might or might not take contingent upon “threatened
action” that Golden Oak might or might not take. Ms. Worthington hasn’t alleged
that the Housing Authority has had or will have any involvement in Golden Oak’s
decision to renew or not renew her lease. And while Ms. Worthington labels the
Housing Authority’s notice to her as a “threat” to withdraw her Section 8 benefits,
the Housing Authority insists that the notice was intended to advise her about
how to continue receiving Section 8 benefits if her lease at Golden Oak is
terminated. See Housing Auth. Memo., at 8 (“Such a response is consistent with
the Housing Authority’s legal obligation to pay benefits under a valid lease.”).
The court is sympathetic to Ms. Worthington’s situation, but her claims
against the Housing Authority are premature. Her dispute with the Housing
Authority hasn’t “matured to a point that warrants decision,” Giger v. Ahmann,
No. 09-CV-4060, 2010 WL 2491025, at *3 (N.D. Ill. June 15, 2010): the relevant
issues aren’t “sufficiently focused so as to permit judicial resolution without
further factual development,” Triple G Landfills, Inc. v. Board of Commissioners
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of Franklin County, Ind., 977 F.2d 287, 289 (7th Cir. 1992), so the parties won’t
suffer any hardship by postponement of judicial action. Because “there is no
substantial controversy between the parties of any immediacy or reality [and there
are] insufficient facts to permit the court to resolve the hypothetical dispute,”
Hinton v. United States, No. 09-C-6920, 2011 WL 1838724, at *3 (N.D. Ill. May
12, 2011), Ms. Worthington’s claims aren’t ripe for adjudication, and the Housing
Authority is entitled to have her claims against it dismissed.1

MOTION TO DISMISS OF GOLDEN OAK APARTMENTS
The Golden Oak Village Limited Partnership moves to dismiss Ms.
Worthington’s claims under the Fair Housing Act, the Rehabilitation Act, and Title
III of the Americans with Disabilities Act for failure to state a claim, Fed. R. Civ.
P. 12(b)(6), and as not in compliance with the pleading requirements of Federal
Rule of Civil Procedure 8(a).
Federal Rule of Civil Procedure 12(b)(6) permits a defendant to seek
dismissal of a complaint that fails to state a claim upon which relief can be
granted. When deciding a Rule 12(b)(6) motion, the court must accept as true the
factual allegations of the complaint and draw all reasonable inferences in favor of
the plaintiff without engaging in fact-finding. Reger Dev., LLC v. National City
Bank, 592 F.3d 759, 763 (7th Cir. 2010); In re Consolidated Indus., 360 F.3d 712,

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Because the ripeness issue is dispositive, the court needn’t address the Housing
Authority’s remaining grounds for dismissal.

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717 (7th Cir. 2004). “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.’ 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.” Ashcroft v. Iqbal, --- U.S. ----, ----,
129 S. Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
555 (2007)). Under the pleading standard of Rule 8(a), a complaint needn’t contain
“detailed factual allegations,” but the allegations of the complaint “must be
enough to raise a right to relief above the speculative level” and give the defendant
fair notice of the claims being asserted and the grounds upon which they rest. Bell
Atl. v. Twombly, 550 U.S. at 555; see also Brooks v. Ross, 578 F.3d 574, 581 (7th
Cir. 2009) (“First, a plaintiff must provide notice to defendants of her claims.
Second, courts must accept a plaintiff’s factual allegations as true, but some
factual allegations will be so sketchy or implausible that they fail to provide
sufficient notice to defendants of the plaintiff’s claim. Third, in considering the
plaintiff’s factual allegations, courts should not accept as adequate abstract
recitations of the elements of a cause of action or conclusory legal statements.”).

Sufficiency of Disability Claims
Ms. Worthington alleges in her complaint that she is a “qualified individual
with a handicap” and a “qualified individual with a disability,” who “has
limitations to major life activities as a result of arthritis and auto-immune
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disease.” Compl., ¶¶ 4, 19, 20, and 21. Golden Oak maintains that those
allegations fail to allege a disability with sufficient particularity to state a claim
under the Fair Housing Act, the Rehabilitation Act, or the Americans with
Disabilities Act. In reliance on decisions from various courts that have granted
motions to dismiss where the limiting major life activity wasn’t specified, Golden
Oak argues that Ms. Worthington’s claims against it should be dismissed.
Recognizing that disagreement exists as to the amount of detail necessary
to allege a disability claim, the court concludes that the allegations of Ms.
Worthington’s complaint are sufficient to put Golden Oak on notice of her claims.
To prevail, Ms. Worthington must ultimately establish that her condition meets
the statutory definition of disability and/or handicap and that she is substantially
limited in a recognized major life activity, but she needn’t do so at this stage of the
proceedings. Compare E.E.O.C. v. J.H. Routh Packing Co., 246 F.3d 850, 854 (6th
Cir. 2001) (“[S]o long as the complaint notifies the defendant of the claimed
impairment, the substantially limited major life activity need not be specifically
identified in the pleading.”); Menkowitz v. Pottstown Memorial Med. Ctr., 154 F.3d
113, 118 n.2 (3d Cir. 1998) (“Appellant in his complaint states that his disability
is ‘a disorder recognized as a disability under the’ ADA and the Rehabilitation Act.
We find this allegation, which we must accept as true, sufficient to meet the notice
pleading requirements of Fed.R.Civ.P. 8 with respect to his disability.”); Hughes
v. Colorado Dep’t of Corrections, 594 F. Supp. 2d 1226, 1240 (D.Colo. 2009)
(“Hughes identifies an impairment of which the State defendants were allegedly
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aware and alleges that such impairment constitutes a disability under the ADA.
. . . At the pleading stage, . . . Hughes’ allegation regarding disability is
sufficient.”); Sheets v. CTS Wireless Components, Inc., 213 F. Supp. 2d 1279,
1282 (D.N.M. 2002) (“[A]n ADA plaintiff need only accuse the defendant of
discrimination on the basis of a particular impairment.”); Davis v. Central Can
Co., No. 05-C-1563, 2006 WL 2255895, at *2 (N.D. Ill. Aug. 4, 2006) (“plaintiff has
not identified any major life activity that is substantially restricted by his alleged
condition and is not required to do so in the initial pleading stage”); with Jackson
v. Northwestern Univ. School of Law, No. 10-C-1986, 2010 WL 5174389, at *3
(N.D. Ill. Dec. 15, 2010) (dismissing complaint where “[plaintiff] does not plead
what her disability is or how it substantially limits one or more major life
activities. She simply makes the conclusory statement that it does.”) Parisi v.
Coca-Cola Bottling Co. of New York, 995 F. Supp. 298, 302 (E.D.N.Y. 1998)
(dismissing complaint that didn’t allege that “any of plaintiff’s major life activities
are impaired as a consequence of his knee injury”); Fedor v. Illinois Dep’t of
Employment Security, 955 F. Supp. 891, 893 (N.D. Ill. 1996) (dismissing
complaint because plaintiff didn’t state “that his impairment substantially limits
a major life activity such as working, which he must do to plead disability
discrimination under the ADA”); Buckley v. Consolidated Edison Co. of New York,
Inc., 908 F. Supp. 217, 219 (S.D.N.Y. 1995) (dismissing complaint that “failed to
allege, except in a conclusory manner, that a ‘neurogenic bladder’ is a disability
under the ADA, i.e., a physical or mental impairment that substantially limits one
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or more of his major life activities”). The court will deny Golden Oak’s motion to
dismiss on this ground.

Fair Housing Act Claims
Golden Oak says its notice to Ms. Worthington that it doesn’t want to renew
her lease isn’t sufficient to state a claim under the Fair Housing Act, so her claims
should be dismissed. According to the facts set forth by the parties in connection
with the motion to dismiss, Ms. Worthington hasn’t vacated her apartment and
Golden Oak hasn’t taken any further action on the eviction process. Golden Oak
claims that an action like Ms. Worthington’s for post-acquisition conduct must
involve conduct that “effectively drives a person from their home,” citing Jones v.
South Bend Housing Authority, No. 3:08-CV-596, 2009 WL 1657466 (N.D. Ind.
June 10, 2009), and because Ms. Worthington hasn’t been evicted, she doesn’t
have a claim under the FHA. The court can’t agree.
The amendments to the Fair Housing Act prohibit discrimination in housing
on the basis of disability, 42 U.S.C. § 3604(f), and make it unlawful
(1) To discriminate in the sale or rental, or to otherwise make
unavailable or deny, a dwelling to any buyer or renter because of a
handicap of – (A) that buyer or renter, [and]
(2) 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 facilities in connection with such dwelling, because of a
handicap of – (A) that person.

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42 U.S.C. § 3604(f)(1)-(2). In addition, Sections 3604(a) and (b) have been
interpreted as prohibiting discriminatory evictions, and “attempted discriminatory
evictions can violate § 3617's prohibition against interference with § 3604 rights.”
Bloch v. Frischholz, 587 F.3d 771, 782 (7th Cir. 2009).
Ms. Worthington alleges in her complaint that because of her complaints
about the lack of heat in her building and the resulting inspection at the
apartment complex, Golden Oak “has refused to renew her Section 8 and has
demanded that she vacate her apartment.” Compl., ¶ 4. Ms. Worthington alleges
further that Golden Oak’s purported reasons for threatening to evict her are “a
cover for discrimination against her as an individual with a handicap” and were
taken in retaliation for her complaints about injuries and losses she suffered that
are directly related to her handicap and that resulted from building conditions and
services at the apartment complex. That Ms. Worthington hasn’t vacated her
apartment doesn’t defeat her ability to proceed on her claims under the Fair
Housing Act. See Bloch v. Frischholz, 587 F.3d 771, 782 (7th Cir. 2009) (“HUD’s
regulations confirm that § 3617 can, in appropriate circumstances, apply to postacquisition discrimination that does not result in eviction.”). Golden Oak’s motion
to dismiss on this ground will be denied.

Rehabilitation Act Claims
Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, prohibits a
recipient of federal funds from discriminating against an otherwise qualified
14

individual with a disability solely because of the disability. Grzan v. Charter Hosp.
of Northwest Indiana, 104 F.3d 116, 119 (7th Cir. 1997). Section 504 provides, in
relevant part, that
[n]o otherwise qualified individual with a disability in the United
States, . . . shall, solely by reason of his or her disability, be excluded
from the participation in, be denied the benefits of, or be subjected to
discrimination under any program or activity receiving Federal
financial assistance . . . .
29 U.S.C. § 794(a). To state a claim under Section 504 of the Rehabilitation Act,
a plaintiff must allege that (1) she is a disabled individual under the Act, (2) she
is otherwise qualified for the benefit sought, (3) the program in question receives
federal financial assistance, and (4) she was discriminated against solely because
of her disability. Mallett v. Wisconsin Div. of Vocational Rehabilitation, 130 F.3d
1245, 1257 (7th Cir. 1997); Grzan v. Charter Hosp. of Northwest Indiana, 104
F.3d 116, 119 (7th Cir. 1997).
Golden Oak moves to dismiss Ms. Worthington’s Rehabilitation Act claims
under the third element because, Golden Oak says, it doesn’t receive any federal
financial assistance. Golden Oak says that Ms. Worthington is mistaken in her
claim that Golden Oak receives federal funding under the Section 8 program,
citing to Echemendia v. Gene B. Glick Mgmt. Corp., 199 Fed. Appx. 544, 546 (7th
Cir. 2006); Laramore v. Ritchie Realty Mgmt. Co., 397 F.3d 544, 545 (7th Cir.
2005); and Knapp v. Eagle Property Mgmt. Corp., 54 F.3d 1272, 1277 (7th Cir.
1995), cases noting that even though Section 8 rent moneys go to the property
owner, the tenant is the actual recipient of the federal assistance. Golden Oak also
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cites to Grzan v. Charter Hosp. of Northwest Ind., 104 F.3d 116 (7th Cir. 1997),
in which the court stated that “[t]he coverage of the Rehabilitation Act does not
follow federal aid past the intended recipient to those who merely derive a benefit
from the aid or receive compensation for services rendered pursuant to a
contractual arrangement.” 104 F.3d at 120 (quoting Gallagher v. Croghan Colonial
Bank, 89 F.3d 275, 278 (6th Cir. 1996)).
In response, Ms. Worthington notes additional support for Golden Oak’s
position that wasn’t cited by Golden Oak in its motion to dismiss, i.e., language
in the definition of “recipient” in HUD regulations implementing Section 504 of the
Rehabilitation Act, which provides, in pertinent part, that
An entity or person receiving housing assistance payments from a
recipient on behalf of eligible families under a housing assistance
payments program or a voucher program is not a recipient or
subrecipient merely by virtue of receipt of such payments.
24 C.F.R. § 8.3.2 Ms. Worthington argues further, however, that § 8.3 is invalid
because it conflicts with a rule issued by the Department of Justice, found at 28
C.F.R. § 35.130. Ms. Worthington says she intends to amend her complaint to
“add the Secretary of HUD as a defendant so that the Secretary may defend the
HUD rule” and asks the court “to defer its ruling on this point and allow her to
raise the issue after the Secretary appears.” Resp., at 5.

2

Too, the official web site of the U.S. Department of Housing and Urban Development
includes a section of “Frequently Asked Questions” relating to Section 504. In answer to the
question, “Who are recipients of federal financial assistance?” the site references “24 CFR 8.3" and
offers, in part, the following response: “[A] private landlord who accepts Section 8 tenant-based
vouchers in payment for rent from a low income individual is not a recipient of federal financial
assistance.” See http://www.hud.gov/offices/fheo/disabilities/sect504faq.cfm.

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Golden Oak challenges Ms. Worthington’s argument, noting that as part of
a regulation (28 C.F.R. pt. 35) entitled, “Nondiscrimination on the Basis of
Disability in State and Local Government Services,” Section 35.130 sets forth
general prohibitions against disability discrimination by a public entity. Golden
Oak insists that that section has no applicability here because the apartment
complex isn’t a public entity and doesn’t provide government services.
Ms. Worthington has stated generally that 28 C.F.R. § 35.130 invalidates
24 C.F.R. § 8.3, but has offered nothing more than the language of Section 35.130
to support her claim. Case law, together with the language of 24 C.F.R. § 8.3,
shows that Golden Oak isn’t a recipient of federal financial assistance. Ms.
Worthington isn’t entitled to the relief she seeks under the Rehabilitation Act, so
Golden’s Oak’s motion to dismiss those claims will be granted.

Claims under Title III of ADA
Golden Oak contends Ms. Worthington can’t maintain her claims under
Title III of the ADA, 42 U.S.C. § 12182(a), because, as an apartment complex,
Golden Oak isn’t a place of public accommodation under the ADA. Most courts
addressing the issue agree that residential apartment complexes aren’t places of
“public accommodation” under the statute. See, e.g., Lancaster v. Phillips Inv.,
LLC, 482 F. Supp. 2d 1362, 1366 (M.D. Ala. 2007) (“Title III of the ADA does not
apply to residential facilities.”); Independent Housing Servs. of San Francisco v.
Fillmore Ctr. Assocs., 840 F. Supp. 1328, 1344 (N.D. Cal. 1993) (“apartments and
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condominiums do not constitute public accommodations with the meaning of the
[ADA]”); Torrence v. Advanced Home Care, Inc., No. 08-CV-2821, 2009 WL
1444448, at *5 (N.D. Ill. May 21, 2009) (noting that “the legislative history of the
ADA indicates that residential apartment buildings are not places of public
accommodation” (citing H.R. Rep. No. 101-485(II), at 100 (1990) (“Only
nonresidential facilities are covered by this title.”)); Phibbs v. American Prop.
Mgmt, No. 2:02-CV-260, 2008 WL 746977, at *3 (D. Utah Mar.19, 2008) (“a
residential apartment complex and its assigned parking is not a place of public
accommodation as contemplated by the [ADA]”); Mabson v. Association of
Apartment Owners of Maui, No. 06-235, 2007 WL 2363349, at *10 (D. Haw. Aug.
13, 2007) (“Purely residential dwellings, such as apartments and condominiums,
are not included within the definition of public accommodation under Title III of
the ADA.”). Although courts have recognized that an apartment complex’s “sales
center” that is open to the public might qualify as a “public accommodation”
under the ADA, see Salp v. NHI Partnership, Ltd., 199 F. Supp. 2d 578, 583 (N.D.
Tex. 2002); Baltimore Neighborhoods, Inc. v. LOB, Inc., 92 F. Supp. 2d 456, 461462 (D.Md. 2000), Ms. Worthington’s allegations clearly relate to her access to her
apartment, not to the sales office or model apartment(s) at Golden Oak Village.
Thus, the allegations of the complaint are insufficient to put Golden Oak on notice
of any claim Ms. Worthington might be trying to assert relating to her access or

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lack of access to public areas of the apartment complex,3 and Golden Oak’s
motion to dismiss Ms. Worthington’s Title III claims must be granted. See Braggs
v. Keith Realty Midtown/Corporate Overseer, No. 10-58, 2010 WL 2985591, at *6
(S.D. Ala. July 19, 2010) (“Because Plaintiff's allegations of ADA violations in this
case relate to the lease of his apartment (a residential facility) . . . , his complaint
fails to state a claim under Title III of the ADA.”).

CONCLUSION
Based on the foregoing, the court
(1) DENIES Ms. Worthington’s motion to strike the Housing
Authority’s reply brief [docket # 22];
(2) DENIES Ms. Worthington’s motion to convert the Housing
Authority’s motion to dismiss into one for summary judgment [docket
# 23];
(3) GRANTS the Housing Authority’s motion to dismiss [docket
# 13]; and
(4) GRANTS IN PART and DENIES IN PART the motion of
Golden Oak Apartments to dismiss [docket # 9] as follows:

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Ms. Worthington argues for the first time in her response brief that “[i]f Golden Oak evicts
[her], she will be denied access to such open public accommodations” at the apartment complex,
but she can’t amend her complaint in response to a motion to dismiss. Burks v. Wisconsin Dept.
of Transp., 464 F.3d 744, 758 n.15 (7th Cir. 2006).

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(a) the motion is DENIED with respect to Ms.
Worthington’s claims of a disability/handicap and her
claims under the Fair Housing Act, and
(b) the motion is GRANTED with respect to Ms.
Worthington’s claims under the Rehabilitation Act and
Title III of the Americans with Disabilities Act.
SO ORDERED.
ENTERED:

October 4, 2011

/s/ Robert L. Miller, Jr.
Judge, United States District Court

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