Hill et al v. Hampstead Lester Morton Court, LLC et al

Filing 44

MEMORANDUM. Signed by Judge Catherine C. Blake on 3/28/13. (apls, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
GLADYS HILL, et al.,
v.
HAMPSTEAD LESTER MORTON
COURT PARTNERS, LP, et al.

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Civil No. CCB-12-539

MEMORANDUM
Plaintiffs Gladys Hill and Cynthia Mitchell seek relief from defendants Hampstead Lester
Morton Court Partners, LP; Hampstead Lester Morton Court, LLC; EMP II, Inc.; and Hampstead
Partners, Inc. under Maryland negligence law and section 504 of the Rehabilitation Act of 1973,
29 U.S.C. § 794, for defendants’ alleged refusal to accommodate Hill’s physical disability.
Pending before this court is defendants’ motion to dismiss or, in the alternative, for summary
judgment. The motion is fully briefed, and no oral argument is necessary. See Local R. 105.6.
Defendants’ motion is treated as a motion for summary judgment and will be granted.
BACKGROUND
Plaintiff Gladys Hill is a diabetic amputee who uses a wheelchair for mobility. She has
lived in unit 1532 at the Hampstead Lester Morton Court (“Lester Morton Court”) housing
community since 1974. She currently lives with her adult son, Alonzo Mitchell, and daughter,
plaintiff Cynthia Mitchell, who serves as her live-in aide. Lester Morton Court is owned by
defendant Hampstead Lester Morton Court Partners, LP, of which defendant Hampstead Lester
Morton Court, LLC is the sole general partner. Defendant Hampstead Partners, Inc. is the
guarantor of Hampstead Lester Morton Court, LLC. Defendant EMP II, Inc., which does

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business as Alpha Property Management, serves as the property manager of Lester Morton
Court.
Hill has been living in a four-bedroom townhouse at Lester Morton Court for about
thirty-seven years. Since her leg was amputated in 2004, however, her ability to use and enjoy
the townhouse has been significantly constrained by her confinement to a wheelchair. Because
each of the four bedrooms is located on the second floor of the two-story townhouse, Hill is
unable to access the bedrooms and has been sleeping in the first-floor living room. Hill’s
wheelchair was unable to fit through the threshold of the first-floor powder room, moreover, and
Hill therefore had to use makeshift bathroom facilities in the living room.1 Hill cannot bathe
without Mitchell’s assistance and relies on Mitchell to help prepare her meals and launder her
clothes.
To enter and exit the townhouse, Hill must ascend or descend two steps immediately
outside her townhouse and another step that leads to the parking lot. Incapable of navigating the
steps on her own, Hill relies on her son and daughter to maneuver the wheelchair over the steps.
Hill also is unable to use the electric wheelchair prescribed to her because her children are unable
to lift it up and down the stairs. She is consequently limited to using a manual wheelchair, and
because of decreased arm strength she is dependent upon her children to push the wheelchair.
In June 2004 Hill’s doctor informed Lester Morton Court that Hill’s leg had been
amputated and that she “will need a [wheelchair] ramp to access her apartment.” (ECF No. 11.)2 On December 14, 2004, the community manager at Lester Morton Court assured Hill that

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After plaintiffs filed this suit, defendants voluntarily agreed to make certain modifications to
Hill’s first-floor powder room, including the widening of the door jamb.
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At some point Hill also requested modifications to the first-floor powder room—including the
widening of the bathroom entryway and the installation of grab bars next to the toilet—sufficient
to enable Hill to use that bathroom without assistance. It is unclear whether this request was
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Alpha Property Management would “make preparations to install the handicap ramp” during a
renovation process scheduled to occur at Lester Morton Court in 2005. (Pl.’s Ex. 1, ECF No. 12.) Hill was assured that she would receive “a notification letter as to what date the ramp will be
installed at [the] entrance to [her] house.” (Id.) After Hill reiterated her request in January 2005,
the community manager explained in a March 2005 letter that “the property is currently
undergoing a rehabilitation construction project” that would retrofit certain units to bring them
into compliance with section 504 of the Rehabilitation Act and the Americans with Disabilities
Act. (Pl.’s Ex. 2, ECF No. 1-4.) “Upon completion of the project,” the letter stated, “you would
have the opportunity to request a transfer to one of these units to accommodate your needs.”
(Id.)
The Lester Morton Court renovation wrapped up in October 2005, but Alpha Property
Management never offered Hill an opportunity to transfer to a three- or four-bedroom apartment.
Hill cites their silence as evidence of defendants’ refusal to accommodate her disability. But
there are, in fact, no three- or four-bedroom wheelchair-accessible apartments at Lester Morton
Court.3 At the preliminary-injunction hearing, moreover, Hill testified that she knew in 2005
that Lester Morton Court was not constructing any three-bedroom wheelchair-accessible
apartments during its renovation. She further testified that she knew in 2005 that other properties
managed by Alpha Property Management did not have any suitable apartments. She did not
investigate or pursue potential opportunities to move to another housing community because she

made in 2004 at the time she initially requested the wheelchair ramp. In all events, the record
shows that Hill asked for the powder-room modifications no later than June 2006, and as noted,
these modifications have been made.
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There is some evidence suggesting that Lester Morton Court offered to transfer Hill to a twobedroom apartment that would accommodate both Hill and Mitchell, her live-in aide. Hill
unequivocally stated at the preliminary-injunction hearing, however, that she was never willing
to transfer to a two-bedroom wheelchair-accessible apartment. (Hearing Tr. at 65–67.) 
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“liked living at Lester Morton” and maintained hope that they would provide the requested
modifications to her townhouse. (Hearing Tr. at 67-68.) According to Hill, the wheelchair ramp
would have enabled her to attend regular physical therapy sessions at the Johns Hopkins
outpatient clinic near her townhouse. Those sessions, in turn, would prepare her to use a
prosthetic leg, allowing her to climb the stairs in her townhouse. (Id. at 68.) Hill therefore
focused on obtaining a wheelchair ramp rather than searching for alternative housing.
Hill renewed her request at a July 2006 meeting. During that meeting, it is undisputed
that defendants denied her request for structural modifications, stating that “they had no
obligation to provide a reasonable accommodation under Section 504 of the Rehabilitation Act
of 1973 because they had created one and two bedroom accessible units on the premises.”
(Compl. ¶ 33, ECF No. 14; see also id. ¶ 34 (“Defendants stated at the July 18, 2006 meeting
that it would be too expensive to provide a wheelchair ramp for Mrs. Hill, and that they would
not do so because if they did, other tenants might request one as well . . . .”); Pl.’s Opp. at 9.)
During a similar 2008 meeting with the Lester Morton Court property manager, Hill
again asked for structural modifications or transfer. The property manager then provided Hill
with an application for Poppleton Place Apartments, another housing community managed by
Alpha Property Management. On August 19, 2008, Hill completed an application for a threebedroom, wheelchair-accessible apartment at Poppleton Place.4 Hill never received any response
to her application, but she has testified that she knew when she completed the application that
Poppleton Place had no three-bedroom handicap-accessible apartments. (Id. at 76-77.)
Plaintiffs’ counsel at the Maryland Disability Law Center sent a letter to Alpha Property
Management and the property manager at Lester Morton Court on September 30, 2010, renewing

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Poppleton Place is not owned by defendants. (ECF No. 27 ¶¶ 10-11.)
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the request for a wheelchair ramp and bathroom modifications and threatening to pursue legal
remedies. The letter attached an architect’s estimate of the cost of the structural modifications
demanded by plaintiffs. On November 1, 2010, counsel for defendants sent an email to
plaintiffs’ counsel stating that the requested modifications would constitute an undue financial
burden and therefore were not required by law.
Plaintiffs did not file their original complaint in this suit until February 21, 2012.5
Because Hampstead Lester Morton Court Partners, LP receives an annual tax credit for
plaintiffs’ townhouse through the Federal Low Income Housing Tax Credit Program, 26 U.S.C.
§ 26, Lester Morton Court is subject to section 504 of the Rehabilitation Act. Plaintiffs allege
that defendants violated section 504 when they refused to install a wheelchair ramp outside Hill’s
townhouse and failed to act on Hill’s request to transfer to a wheelchair-accessible apartment.
Plaintiffs further allege that defendants negligently hired, trained, and supervised their
employees. Plaintiffs seek declaratory relief, damages, and a permanent injunction compelling
defendants to accommodate Hill’s disability.6 Defendants filed the pending motion on July 13,
2012.
STANDARD
Defendants have moved to dismiss or, in the alternative, for summary judgment. A
motion to dismiss “is intended to test the legal adequacy of the complaint, and not to address the
merits of any affirmative defenses.” Richmond, Fredericksburg & Potomac R. Co. v. Forst, 4
F.3d 244, 250 (4th Cir. 1993). The statute of limitations is an affirmative defense that may be
decided on a motion to dismiss only “in the relatively rare circumstances where facts sufficient

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Plaintiffs filed an amended complaint on April 12, 2012.

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 Plaintiffs also sought a preliminary injunction. This court held a motion hearing and
subsequently denied the motion on June 14, 2012. 

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to rule on [the] affirmative defense are alleged in the complaint.” Goodman v. Praxair, Inc., 494
F.3d 458, 464 (4th Cir. 2007); see also Dean v. Pilgrim’s Pride Corp., 395 F.3d 471, 474 (4th
Cir. 2005). Because this court must look to facts outside the complaint to determine the date on
which the applicable statute of limitations began to run, defendants’ motion will be treated as one
for summary judgment.
Summary judgment is appropriate “if the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.” Celotex Corp.
v. Catrett, 477 U.S. 317, 323 (1986). Conversely, the motion should be denied if “reasonable
jurors could find by a preponderance of the evidence that the plaintiff is entitled to a verdict.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). The court must “view the evidence
in the light most favorable to . . . the nonmovant, and draw all reasonable inferences in her favor
without weighing the evidence or assessing the witnesses’ credibility.” Dennis v. Columbia
Colleton Med. Ctr., Inc., 290 F.3d 639, 645 (4th Cir. 2002). At the same time, the court must not
yield its obligation “to prevent factually unsupported claims and defenses from proceeding to
trial.” Bouchat v. Baltimore Ravens Football Club, Inc., 346 F.3d 514, 526 (4th Cir. 2003).
ANALYSIS
Defendants argue that plaintiffs’ suit should be dismissed because both claims are barred
by the applicable statutes of limitations. Negligence claims in Maryland are subject to a threeyear statute of limitations. Md. Code Ann., Cts. & Jud. Proc. § 5-101. Section 504 of the
Rehabilitation Act of 1973 does not contain a specific limitations period, and the most
appropriate Maryland statute of limitations therefore must be applied to plaintiffs’ cause of
action. See McCullough v. Branch Banking & Trust Co., 35 F.3d 127, 129 (4th Cir. 1994). In
Schalk v. Associated Anesthesiology Practice, 316 F. Supp. 2d 244, 251 (D. Md. 2004), this

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court held that the limitations period for Rehabilitation Act claims in Maryland is three years—a
determination that the parties here do not dispute.
The statute of limitations on a Rehabilitation Act claim begins to run “when the plaintiff
‘knows or has reason to know of the injury which is the basis of the action.’” A Soc’y Without A
Name v. Virginia, 655 F.3d 342, 348 (4th Cir. 2011) (quoting Cox v. Stanton, 529 F.2d 47, 50
(4th Cir. 1975)). In a separate but related context concerning the statute of limitations in a civil
rights case, the Supreme Court “stressed the need to identify with care the specific
[discriminatory] practice that is at issue.” Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S.
618, 624 (2007). Section 504 protects certain disabled persons from “be[ing] excluded from the
participation in, be[ing] denied the benefits of, or be[ing] subjected to discrimination under any
program or activity receiving Federal financial assistance.” 29 U.S.C. § 794(a). The statute does
not “necessarily require a recipient [of federal financial assistance] to make each of its existing
facilities accessible to and usable by individuals with handicaps.” 24 C.F.R. § 8.24(a)(1). It
requires that the housing program, “when viewed in its entirety, [be] readily accessible to and
usable by individuals with handicaps.” Id. § 8.24(a). Recipients of federal aid “may comply
with the requirements of [the Rehabilitation Act] through such means as reassignment of services
to accessible buildings, assignment of aides to beneficiaries, . . . alteration of existing facilities
and construction of new facilities.” Id. § 8.24(b). Thus, the alleged violation in this case was not
the existence of steps outside Hill’s townhouse; it was defendants’ refusal to accommodate Hill’s
disability by performing the requested structural modifications or transferring her to a threebedroom wheelchair-accessible apartment.
Plaintiffs’ claims therefore are time-barred if they had reason to know before February
21, 2009—three years before filing this suit—that defendants would not accommodate Hill’s

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request for either structural modifications or transfer to wheelchair-accessible housing. The
pleadings, testimony, and document exhibits provide ample undisputed evidence that Hill and
Mitchell had reason to know as early as 2006 that their request would be denied. Hill testified
that she knew in 2005 and 2006 that neither Lester Morton Court nor the other properties
managed by Alpha Property Management had wheelchair-accessible three-bedroom apartments,
and plaintiffs therefore had reason to know at that time that their request for a transfer would not
be accommodated. Hill never visited other housing communities to search for suitable housing,
and she testified that she preferred to stay in her townhouse at Lester Morton Court. Although
Hill completed an application for the Poppleton Place Apartments, moreover, Hill testified that
she knew Poppleton Place had no three-bedroom accessible apartments, and she was not willing
to move into a two-bedroom apartment. Hill made no effort to follow up with anyone at
Poppleton Place regarding her application, and drawing all reasonable inferences in her favor,
she and Mitchell had no reason to believe in 2006 that a transfer would occur.
Hill also had reason to know, long before February 2009, that defendants would not
accommodate her request for structural modifications. Defendants suggested in their 2004 letter
that a wheelchair ramp would be installed in connection with the 2005 renovations. In its March
2005 letter, however, Alpha Property Management made no mention of the wheelchair ramp,
instead stating that Hill and Mitchell would be provided an opportunity to transfer into a
retrofitted, wheelchair-accessible apartment upon completion of the renovations. Furthermore,
and most significantly, when Hill renewed her request for a wheelchair ramp during the 2006
meeting, the request was expressly denied. The undisputed evidence thus clearly indicates that
plaintiffs could not reasonably have believed that Lester Morton Court would make the requested
modifications.

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To avoid this limitations bar, Hill and Mitchell advance two alternative theories. First,
plaintiffs argue that their renewed request in 2010, and defendants’ subsequent denial of that
request, reset the three-year limitations clock. Thus, they contend that the statute of limitations
will not expire until November 2013, three years after defendants’ counsel denied any duty to
complete the requested structural modifications. Second, invoking the continuing-violation
doctrine, Hill and Mitchell contend that defendants’ continual denials of Hill’s requests amount
to a pattern of discriminatory conduct that, as a whole, constitutes an actionable, aggregable
claim as long as one of those denials occurred within the limitations period. Unfortunately for
the plaintiffs, neither contention is supported by Fourth Circuit case law.
“[E]very refusal to reconsider the [decision] does not revive the limitations period for the
original . . . decision. To do so would upset the balance struck by the limitations period between
the reasonable needs of individual claimants and the public interest in finality.” Jersey Heights
Neighborhood Ass’n v. Glendening, 174 F.3d 180, 189 (4th Cir. 1999); see also Del. State Coll.
v. Ricks, 449 U.S. 250, 261 n.15 (1980) (“Mere requests to reconsider . . . cannot extend the
limitations period applicable to the civil rights laws.”). The property manager informed Hill in
2004 that the wheelchair ramp would be installed the following year, and her 2005 letter thus
was not a “request[] to reconsider”; rather, it was an appeal to carry through the promised
modifications. In 2006, however, the property manager made clear that Hill’s only option was to
transfer to a two-bedroom wheelchair-accessible apartment; defendants rejected Hill’s request
for structural modifications to her townhouse. Hill’s subsequent efforts to secure those structural
modifications therefore amounted to requests for reconsideration, and the law is clear that such
requests neither toll nor restart the limitations clock.

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Nor can the continuing-violation doctrine save plaintiffs’ claims from the statute of
limitations. “In general, to establish a continuing violation the plaintiff must establish that the
unconstitutional or illegal act was a fixed and continuing practice.” Nat’l Adver. Co. v. City of
Raleigh, 947 F.2d 1158, 1166 (4th Cir. 1991) (internal modifications and quotation marks
omitted). A continuing violation exists only where the plaintiff can show that the illegal act
occurred “in a series of separate acts,” where “the same alleged violation was committed at the
time of each act.” A Soc’y Without A Name, 655 F.3d at 348. The issue here is whether
defendants’ repeated denials of Hill’s request for structural modifications constituted a
continuing violation.
The answer appears to be no. “A continuing violation is occasioned by continual
unlawful acts, not continual ill effects from an original violation.” Nat’l Adver. Co., 947 F.2d at
1166 (internal quotation marks omitted). Where each act relates to the exact same subject
matter—e.g., regularly requesting the same structural modifications to Hill’s townhouse—an
individual cannot “keep his claim . . . forever alive” by periodically renewing the request. West
v. ITT Cont’l Baking Co., 683 F.2d 845, 846 (4th Cir. 1982) (“[A]ll of the wrongs relate solely to
that event and [defendant’s] refusal to change its decision.”). Plaintiffs merely allege that they
renewed their request for accommodations on several occasions and that those requests were
regularly denied. The consistent denial of the same request made by the same individual does
not constitute continuing discrimination. See A Soc’y Without A Name, 655 F.3d at 349; Jersey
Heights Neighborhood Ass’n, 174 F.3d at 189; Nat’l Adver. Co., 947 F.2d at 1167. The fact that
defendants could, at any time, reverse course and accommodate Hill’s request by installing a
wheelchair ramp does not render their refusal to do so a continuing violation. (See Pl.’s Opp. at
9, ECF No. 35 (“Mrs. Hill would naturally have assumed that a new property manager might

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take a different course of action . . . .”)). Such logic would nullify the statute of limitations and
subject defendants to the threat of repeated lawsuits for the same allegedly discriminatory
decisions.7
The alleged violation in this case was defendants’ denial of Hill’s request for reasonable
accommodations. That denial occurred no later than Hill’s 2006 meeting with the Lester Morton
Court property manager. At that meeting Hill was clearly and unequivocally told that Lester
Morton Court would not make the requested structural modifications. (See Compl. ¶¶ 33-34;
Pl.’s Opp. at 9). That notification constituted the denial which gave rise to Hill’s claim, and even
if this court draws all reasonable inferences in plaintiffs’ favor, as it must, the undisputed
evidence indicates the limitation clock began to tick when Lester Morton Court expressly denied
Hill’s request at the 2006 meeting. Plaintiffs filed this suit more than three years after that
meeting, by which time the limitations period had expired.

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In a January 24, 2013, letter to this court, plaintiffs’ counsel cited Scherr v. Marriott
International. Inc., No. 11-3833, 2013 WL 57857, at *5 (7th Cir. Jan. 7, 2013), for the broad
proposition that the statute of limitations does not bar an otherwise time-barred suit for injunctive
relief under the Americans with Disabilities Act (“ADA”) as long as the allegedly noncompliant
building feature continues to exist and to harm the plaintiff. The Seventh Circuit cited the
language of the ADA in support of its conclusion that the limitations period will never expire as
long as the injurious condition continues to exist. Id. In this case the gravamen of the complaint
is the failure to provide a particular accommodation, which was requested and denied. It does
not appear that the Seventh Circuit’s broad principle has been adopted in the Fourth Circuit, nor
that it would necessarily apply to Hill’s specific claim. See A Soc’y Without A Name, 655 F.3d at
349 (differentiating between continuing violations and continuing effects and holding that
continuing effects of an ADA-violative decision neither toll nor restart the limitations clock).
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CONCLUSION
For the reasons stated above, defendants’ motion for summary judgment will be granted
and judgment will be entered in favor of defendants. A separate order follows.

March 28, 2013
Date

/s/
Catherine C. Blake
United States District Judge

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