Jackson v. Park Place Condominiums et al
Filing
87
MEMORANDUM AND ORDER granting 68 Motion for Summary Judgment. See Order for details. Signed by District Judge Carlos Murguia on 3/25/15. Mailed to pro se party Marcia L. Jackson by regular and certified mail. (Certified Tracking Number: 7002 2030 0000 9348 8619) (kao)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
MARCIA L. JACKSON,
Plaintiff,
v.
PARK PLACE CONDOMINIUMS
ASSOCIATION, INC.,
Defendant.
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Case No. 13-2626-CM
MEMORANDUM AND ORDER
Plaintiff Marcia L. Jackson, proceeding pro se, filed suit against defendant Park Place
Condominiums Association, Inc., seeking damages under 28 U.S.C. § 1343 for alleged violations of
her civil rights. Specifically, plaintiff claims that defendant discriminated against her on the basis of
her race (African-American) during her tenancy in one of defendant’s condominium units. This matter
is before the court on defendant’s Motion for Summary Judgment (Doc. 68).
Defendant set forth a total of thirty-nine statements of fact in support of its summary judgment
motion. In her opposition briefing (and the supplements plaintiff has since filed1), plaintiff failed to
comply with the applicable rules of civil procedure and the local rules of this court, even though
defendant gave proper notice under Local Rule 56(f). (Doc. 69.) However, because of plaintiff’s
status as a pro se litigant, the court will construe plaintiff’s response more liberally than it might
construe a response filed by a licensed attorney. Hall v. Bellmon, 935 F.2d 1106, 1110 & n.3 (10th
Cir. 1991) (citing Overton v. United States, 925 F.2d 1282 (10th Cir. 1990) for the proposition that
liberal construal of pro se pleadings includes review of summary judgment briefs). As such, the court
will deem admitted those facts to which plaintiff wholly failed to respond or otherwise controvert.
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Docs. 71, 72, 73 and 75.
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Moreover, to the extent plaintiff has declared defendants’ factual assertions as contested, but where she
failed to specifically controvert those assertions, the court deems those facts admitted as well. D. Kan.
Rule 56.1(a) (“All material facts set forth in the statement of the movant will be deemed admitted for
the purpose of summary judgment unless specifically controverted by the statement of the opposing
party.”).
I.
FACTS
Defendant in this case is Park Place Condominiums Association, Inc. (“Park Place”), which is
governed by a Home Owners’ Association (“HOA”) Board. From January 2011 to January 2012,
Marcia Cooper was President of the HOA Board. Plaintiff was not a unit owner but rather rented a
condominium unit owned by Jake Hurley from April 2011 to February 2012. The HOA Board had no
control over Hurley’s action in renting his unit to plaintiff, and neither supported nor opposed it.
During her tenancy at Park Place, plaintiff had disputes with some of her neighbors about the
amount of noise coming from her unit. One of plaintiff’s neighbors, Maria Grazia Serra, lived directly
below plaintiff. Plaintiff alleges that she was accused of playing loud music at 3:00 a.m. and of
walking too loudly and that Ms. Grazia Serra would beat on plaintiff’s ceiling. At one point, Ms.
Grazia Serra filed a civil lawsuit against plaintiff in the District Court of Johnson County, Kansas. See
Marcia Grazia Serra v. Marci Jackson and Jacob Hurley, Case No. 12CV00958. The lawsuit was
resolved by default judgment against plaintiff, in which the court found that plaintiff “regularly and
intentionally engaged in or permitted offensive, improper and/or unlawful activities with substantial
certainty that such activities will interfere with [Ms. Grazia Serra’s] use and enjoyment of her
property.” (Doc. 68-1 at 1.) The lawsuit was neither approved of, nor controlled or supported by, the
HOA Board.
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Ms. Cooper testified that she and other HOA representatives attempted to mediate the disputes
over noise between plaintiff and her neighbors, that she explained to plaintiff on more than one
occasion what the Park Place noise standards were, and that the HOA never fined or reprimanded
plaintiff for the excessive noise coming from her unit. (Doc. 68-1 at 1–2.) During her tenancy,
plaintiff never came to a HOA meeting, nor did she present any written grievance on any subject. (Id.
at 2.)
Plaintiff now claims that defendant “harassed, intimidated, and tormented her, endangered her
safety, inflicted criminal hate and fear upon her, caused unexpected visits and phone calls to her by
home owners members, to include accusations of playing loud black music at 3:00 a.m., walking too
hard, and beating on her ceiling when she was watching TV.” (Doc. 65 ¶ 3.a.)
Plaintiff also claims that defendant caused her to wait three months to have her name placed on
her mailbox and then three days later caused her nametag to be ripped off and discarded on the floor of
the breezeway. (Doc. 65 at 3, ¶ 3.a.) While defendant claims that plaintiff never informed it that her
nametag had been ripped off, plaintiff claims she told Ms. Cooper that she (plaintiff) suspected Ms.
Grazia Serra. (Doc. 70-3 at 3.) Plaintiff also asserts that defendant caused the decals on her car to be
pried off. (Doc. 65 at 3, ¶ 3.a.)
II.
ANALYSIS
A.
Legal Standards
Plaintiff does not set forth under what federal statute she is pursuing her housing discrimination
claim. Defendant characterizes plaintiff’s allegations as arising under 42 U.S.C. § 1981, which
prohibits racial discrimination in the making, performance, modification, and termination of contracts.
Hampton v. Dillard Dep’t Stores, Inc., 247 F.3d 1091, 1102 (10th Cir. 2001). However, 42 U.S.C.
§ 1982 prohibits racial discrimination in the sale and rental of property, Kelly v. U.S. Dep’t of Justice,
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No. 03-4137-JAR, 2003 WL 22533562, at *2 (D. Kan. Oct. 31, 2003), and the Fair Housing Act
(“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 facilities in connection
therewith, because of race, color, religion, sex, or national origin.” Zhu v. Fisher, Cavanaugh, Smith &
Lemon, P.A., 151 F. Supp. 2d 1254, 1258 (D. Kan. 2001) (quoting 42 U.S.C. § 3604(b)).
The court construes plaintiff’s allegations in this lawsuit as asserting a claim of hostile housing
environment. Whether that claim arises under the § 1981, § 1982, or the FHA is not significant here,
however, because plaintiff cannot establish a prima facie case.
Plaintiff presents no direct evidence of housing discrimination, so the court applies the burdenshifting framework articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–04 (1973).
Smith v. Mission Assocs. Ltd. P’ship, 225 F. Supp. 2d 1293, 1298–99 (D. Kan. 2002) (stating that,
because plaintiffs alleged direct evidence of housing discrimination, the McDonnell Douglas burdenshifting framework did not apply); see also Perry v. Woodward, 199 F.3d 1126, 1134 (10th Cir. 1999)
(burden-shifting framework applies to § 1981 claim); Asbury v. Brougham, 866 F.2d 1276, 1279 (10th
Cir. 1989) (burden-shifting framework applies to § 1982 and FHA claims). Under McDonnell
Douglas, plaintiff first must present a prima facie case of discrimination. If plaintiff proves a prima
facie case, the burden shifts to defendant to produce evidence that its conduct was motivated by
legitimate, non-discriminatory reasons. Once defendant articulates non-discriminatory reasons, the
burden shifts back to plaintiff to show that the proffered reasons were pretextual.
A hostile housing environment claim is actionable when the offensive behavior unreasonably
interferes with the use and enjoyment of the premises. Honce v. Vigil, 1 F.3d 1085, 1090 (10th Cir.
1993). The elements necessary for a prima facie case of hostile housing environment are: 1) plaintiff is
a member of a protected class, 2) the conduct was unwelcome, 3) the conduct was based on plaintiff’s
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membership in a protected class, 4) it was sufficiently severe or pervasive to alter the plaintiff’s living
conditions and create an abusive environment, and 5) defendant knew or should have known about the
harassment. Smith, 225 F. Supp. 2d at 1298–99. In this case, plaintiff cannot survive summary
judgment because she has failed to establish a prima facie case that she was subjected to a hostile
housing environment.
B.
Plaintiff Cannot Establish a Prima Facie Case of Housing Discrimination
There is no question that plaintiff had an on-going dispute with at least one of her neighbors
(Maria Grazia Serra) over the issue of noise. The dispute led to Ms. Grazia Serra filing a civil lawsuit
in Johnson County District Court, of which defendant neither approved, controlled, nor supported, and
which ultimately ended in a judgment against plaintiff. Defendant provided evidence that it
attempted—through Marcia Cooper and others—to mediate the noise disputes between plaintiff and
her neighbors. Plaintiff has provided no evidence that her disputes with her neighbor were racially
motivated. While plaintiff claims she was accused of playing loud “black” music, there is nothing in
the record—including from Ms. Grazia Serra’s lawsuit—that indicates it was the type of music with
which Ms. Grazia Serra had an issue. The court believes that what occurred between plaintiff and Ms.
Grazia Serra was a dispute between neighbors, not unlawful discrimination by defendant.
Regarding plaintiff’s nametag that she claims she found ripped off her mailbox and lying on the
breezeway floor, plaintiff admits that she does not know how it came off or even if someone took it
off—although plaintiff testified she informed Ms. Cooper that she suspected Ms. Grazia Serra ripped it
off. While Ms. Cooper disputes that plaintiff informed her regarding her nametag, this fact is not
material given that plaintiff is not claiming defendant refused to replace the nametag after the incident.
Rather, plaintiff testified that, after she discovered the nametag on the breezeway floor (and after
calling the police about it), she put the nameplate back on her mailbox, where it remained until she
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moved out. (Doc. 68-2 at 16.) The court views the nametag issue as an isolated incident, and there is
no evidence indicating or even suggesting that plaintiff’s nametag was removed because she is black.
Moreover, this conduct was not severe or pervasive enough to create a hostile housing environment,
especially given that the nametag stayed on her mailbox after this incident.
The court views plaintiff’s allegations related to her car decals similarly. According to
plaintiff, at some point while she was living at the condominiums, the “Deville” decal on her Cadillac
was stolen. While plaintiff testified that she filed a police report, there is no evidence that plaintiff
informed any HOA member that her car decal was stolen. In fact, the uncontroverted evidence is to
the contrary—Ms. Cooper testified that plaintiff never informed the HOA of any incident regarding
damage to her car while she was a tenant. (Doc. 68-1 at 2 ¶ 16.) Plaintiff put forth no evidence that
defendant caused the decal to be removed or that defendant had any knowledge the decal was removed.
Additionally, there is no evidence in the record that plaintiff’s decal was stolen because she is black or
that the missing decal altered plaintiff’s living conditions.
Defendant offers an additional argument related to plaintiff’s allegation that she was forced to
move out of the condominiums early, although plaintiff failed to include any such allegation in the
Pretrial Order. (Doc. 65.) Nevertheless, the court will address the argument out of an abundance of
caution. Plaintiff has alleged that Mr. Hurley (the owner of her rented unit) asked her to move out her
three months before her lease expired,2 but plaintiff offers no evidence that defendant suggested,
asked, or ordered Mr. Hurley to request that plaintiff move out. Moreover, other than plaintiff’s own
self-serving, conclusory statement (e.g., Doc. 70-2 at 12), plaintiff has no evidence that Mr. Hurley
requested that she move because she is black or that defendant suggested, asked, or ordered Mr. Hurley
to request that plaintiff move out because she is black. For all these reasons, plaintiff’s claims of
housing discrimination fail as a matter of law.
2
Plaintiff did not pay Mr. Hurley rent for those three months.
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IT IS THEREFORE ORDERED that defendant’s Motion for Summary Judgment (Doc. 45)
is granted.
Dated this 25th day of March, 2015, at Kansas City, Kansas.
s/ Carlos Murguia
CARLOS MURGUIA
United States District Judge
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