Nichols v Carriage House Condiminiums at Perry Hall Farms, Inc. et al

Filing 14

MEMORANDUM OPINION. Signed by Judge Richard D Bennett on 7/15/2015. (bmhs, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
BRIAN NICHOLS,

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Plaintiff,

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v.

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CARRIAGE HOUSE CONDOMINIUMS
AT PERRY HALL FARMS, INC., et al.,

Civil Action No. RDB-14-3611

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Defendants.
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MEMORANDUM OPINION

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Plaintiff Brian Nichols (“Nichols” or “Plaintiff”) filed the subject action against
Defendants Carriage House Condominiums at Perry Hall Farms, Inc. (“Carriage House”)
and Residential Realty Group, Inc. (“Residential Realty”) (collectively, “Defendants”),
alleging violations of the Fair Housing Act, 42 U.S.C. § 3601, et seq., and the parallel
Maryland housing discrimination law, Md. Code Ann., State Gov’t, § 20-701, et seq. Nichols
claims that Defendants discriminated and retaliated against him in denying his request for a
modification to accommodate his disability.
Currently pending before this Court are Defendants’ Motion to Dismiss (ECF No. 7)
and Defendants’ Motion to Dismiss the Amended Complaint (ECF No. 11). The parties’
submissions have been reviewed and no hearing is necessary. See Local Rule 105.6 (D. Md.
2014). For the following reasons, Defendants’ Motion to Dismiss (ECF No. 7) is MOOT1
and Defendants’ Motion to Dismiss the Amended Complaint (ECF No. 11) is GRANTED.

As this Court is granting Defendants’ Motion to Dismiss the Amended Complaint, Defendants’ original Motion
to Dismiss is moot. Defendants’ grounds in support of its Motion to Dismiss the Amended Complaint are
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BACKGROUND
In a ruling on a motion to dismiss, this Court must accept the factual allegations in
the plaintiff’s complaint as true and construe those facts in the light most favorable to the
plaintiffs. See, e.g., Edwards v. City of Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999).
In 2001, Nichols purchased a condominium from Carriage House and Residential
Realty in Perry Hall, Maryland. Amended Compl. ¶ 6, ECF No. 10. Nichols suffers from a
variety of illnesses and disorders, including osteoarthritis, gout, and an “anxiety-based[]
driving disorder.” Id. ¶¶ 7,8, 12. These illnesses have severely reduced his mobility, requiring
Plaintiff to use a cane, crutches, and a wheelchair. Id. ¶ 10. Due to his anxiety, he does not
drive, and thus relies on friends and co-workers for transportation. Id. ¶ 12.
The present action stems from Plaintiff’s October 13, 2010 letter to Carriage House2
asking to modify his driveway to accommodate his disability.3 Id. ¶ 29. Two weeks after
submitting this request, Nichols filed a housing discrimination complaint against Defendants
with the United States Department of Housing and Urban Development (“HUD”).4 Id. ¶ 30.

identical to those raised in its original Motion to Dismiss, with the addition of a response to Plaintiff’s attempt to
cure the timeliness issue in the Amended Complaint. This Court will thus refer to arguments made in both
Motions.
2 Although Nichols names both Carriage House and Residential Realty as defendants, he does not distinguish
between Defendants when describing the alleged events. Defendants collectively moved to dismiss, and this Court
will treat them as one.
3 Plaintiff includes in his Complaint allegations related to a 2005 application for a driveway extension that
Defendants approved in April 2005. Id. ¶ 21. Nichols alleges that he did not begin the construction of the driveway
extension until December 2007 due to a complicated surgery on his ankle. Id.¶¶ 22-24. A month later, , Defendants
sent Plaintiff a cease and desist order to halt any further construction. Id. ¶ 26. As grounds for the order,
Defendants asserted that Plaintiff had failed to begin construction on the driveway within six months of the
approval of the request. Id. The parties litigated this dispute in Circuit Court for Baltimore County and the
Maryland Court of Special Appeals, which ultimately ruled in favor of Defendants. Id. ¶¶ 27-28. Nichols was
ordered to remove the driveway extension and pay attorneys’ fees of $66,683.00. Id. ¶ 28. The issues stemming
from Nichols’s 2005 application, however, are unrelated to the present action. It appears that Plaintiff includes
these allegations merely as background information.
4 Plaintiff cross-filed his complaint with the Maryland Commission on Civil Rights. In the Complaint (and
unchanged in the Amended Complaint), he confuses the case numbers of the discrimination complaint related to

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Nichols claimed that Defendants “unlawfully denied his requests for reasonable
accommodations.” Id. On November 17, 2010, counsel for Carriage House sent Nichols a
letter denying his October 13 request. Id. ¶ 31. The letter noted that Plaintiff “[had] not ever
requested a reasonable modification due to [his] claimed handicap, [Carriage House] has
decided to treat [his] cover letter dated October 13, 2010 and accompanying Exterior
Alteration Application as a request for a reasonable modification of the driveway adjacent to
your Unit under the Fair Housing Act.” Id. ¶ 32. Counsel for Carriage House thus requested
that Nichols provide documentation of his claimed disability and an explanation of the
nexus between the disability and the modification in question. Id. ¶ 33. Carriage House holds
the position that, once Plaintiff had provided the requisite documentation, Carriage House
would consider approval of a modification of 156 inches, as set forth by the Americans with
Disability Act Accessibility Guidelines (the “Guidelines”). Id. ¶ 34.
After Nichols provided the requested disability documentation, the parties attended a
fact-finding conference before the Maryland Commission on Civil Rights (the
“Commission”) on February 29, 2012. Id. ¶¶ 39-40. During the conference, Nichols alleges
that Carriage House offered to approve an extension of 156 inches in exchange for a release
of Carriage House’s liability. Id. ¶ 45. On March 22, 2012, the Commission issued its written
findings. Id. ¶ 41. The Commission concluded that Defendants “could have reasonably
concluded that [Nichols] intended to pay for the modifications when he initially submitted
his application in 2010,” even though he made no explicit offer. Id. ¶ 42; see also Defs.’ Mot.

the October 13, 2010 modification request with the case numbers of an unrelated discrimination complaint filed
on December 20, 2011. See Mem. in Supp. of Defs.’ Mot. to Dismiss, 3 n.1, ECF No. 7-1; see also Mot. to Dismiss
Ex. B, ECF No. 7-3 (Written Finding by Maryland Commission on Civil Rights, March 22, 2012); Compl. ¶ 38.

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to Dismiss Ex. B, ECF No. 7-3. The Commission noted, however, that Plaintiff refused to
pay for the modification during the fact-finding conference.5 Defs.’ Mot. to Dismiss Ex. B,
at 5.
Additionally, the Commission found that the circumstances did not support the
approval of Nichol’s request for a modification that would include a second parking space,
beyond the 156 inches set by the Guidelines. Compl. ¶ 43. Plaintiff refused to accept a
modification of 156 inches, instead asserting that he required a driveway of 228 inches that
would accommodate the vehicles of persons transporting him. Id. ¶¶ 43-44; see also Defs.’
Mot. to Dismiss Ex. B, at 5. At the present time, Nichols remains without a handicapaccessible parking space or a handicap-accessible aisle.
Plaintiff filed the subject action on November 17, 2014 seeking $100,000,000 in
compensatory damages, punitive damages, and an order permitting the installation of his
requested modified driveway. Defendants subsequently moved to dismiss the Complaint
pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Defs.’ Mot. to Dismiss,
ECF No. 7. Instead of filing a response to Defendants’ Motion, Nichols filed an Amended
Complaint (ECF No. 10), attempting to cure the timeliness issues highlighted by Defendants
in their Motion.6 Defendants again moved to dismiss the Amended Complaint (ECF No.
11).
5 As will be discussed below, a court may consider documents attached to a defendant’s motion to dismiss if that
document “was integral to and explicitly relied on in the complaint and if the plaintiff[] do[es] not challenge its
authenticity.” Pasternak & Fidis, P.C. v. Recall Total Information Management, Inc., --- F. Supp. 3d ----, 2015 WL
1405395, *4 (D. Md. Mar. 25, 2015) (quoting Tucker v. Specialized Loan Servicing, LLC, --- F. Supp. 3d ----, 2015 WL
452285, *8 (D. Md. Feb. 3, 2015)). Nichols explicitly quotes and refers to the Commission’s written findings in his
Complaint. He also does not dispute the authenticity of the attachment. This Court thus may consider the written
findings, as attached to Defendants’ Motion to Dismiss.
6 The Amended Complaint is identical to the Complaint, with the additions of allegations that: (1) Plaintiff
submitted a letter to Residential Realty requesting “handi-cap accessibilities” on June 10, 2014; (2) Defendants

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STANDARD OF REVIEW
Under Rule 8(a)(2) of the Federal Rules of Civil Procedure, a complaint must contain
a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.
R. Civ. P 8(a)(2). Rule 12(b)(6) of the Federal Rules of Civil Procedure authorizes the
dismissal of a complaint if it fails to state a claim upon which relief can be granted. The
purpose of Rule 12(b)(6) is “to test the sufficiency of a complaint and not to resolve contests
surrounding the facts, the merits of a claim, or the applicability of defenses.” Presley v. City of
Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006).
The Supreme Court’s recent opinions in Bell Atlantic Corp. v. Twombly, 550 U.S. 544
(2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009), “require that complaints in civil actions be
alleged with greater specificity than previously was required.” Walters v. McMahen, 684 F.3d
435, 439 (4th Cir. 2012) (citation omitted). In Twombly, the Supreme Court articulated “[t]wo
working principles” that courts must employ when ruling on Rule 12(b)(6) motions to
dismiss. Iqbal, 556 U.S. at 678. First, while a court must accept as true all the factual
allegations contained in the complaint, legal conclusions drawn from those facts are not
afforded such deference. Id. (stating that “[t]hreadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not suffice” to plead a claim); see also
Wag More Dogs, LLC v. Cozart, 680 F.3d 359, 365 (4th Cir. 2012) (“Although we are
constrained to take the facts in the light most favorable to the plaintiff, we need not accept
approved the request by a return letter, subject to the terms and conditions set forth by the November 17, 2010
letter (e.g. permitting a modification of 156 inches, not Plaintiff’s requested 228 inches); (3) the approval was,
according to Nichols, actually a denial, as he required a larger modification than that approved; and (4) an assertion
that Defendants “have continuously denied Plaintiff’s ongoing requests for an accommodation since at least
November 2010.” Amend. Compl. ¶¶ 52-56. Although Nichols filed the Amended Complaint with neither the
consent of Defendants nor leave of court, this Court will include the additional allegations in its consideration of
Defendants’ Motions.

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legal conclusions couched as facts or unwarranted inferences, unreasonable conclusions, or
arguments.” (internal quotation marks omitted)).
Second, a complaint must be dismissed if it does not allege “a plausible claim for
relief.” Iqbal, 556 U.S. at 679. Although a “plaintiff need not plead the evidentiary standard
for proving” her claim, she may no longer rely on the mere possibility that she could later
establish her claim. McCleary-Evans v. Maryland Department of Transportation, State Highway
Administration, --- F.3d ---, 2015 WL 1088931, *11-12 (4th Cir. 2015) (emphasis omitted)
(discussing Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002) in light of Twombly and Iqbal).
Under the plausibility standard, a complaint must contain “more than labels and
conclusions” or a “formulaic recitation of the elements of a cause of action.” Twombly, 550
U.S. at 555. While the plausibility requirement does not impose a “probability requirement,”
id. at 556, “[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.” Iqbal, 556 U.S. at 678; see also Robertson v. Sea Pines Real Estate Cos., 679
F.3d 278, 291 (4th Cir. 2012) (“A complaint need not make a case against a defendant or
forecast evidence sufficient to prove an element of the claim. It need only allege facts sufficient to
state elements of the claim.” (emphasis in original) (internal quotation marks and citation
omitted)). In making this assessment, a court must “draw on its judicial experience and
common sense” to determine whether the pleader has stated a plausible claim for relief.
Iqbal, 556 U.S. at 679. “At bottom, a plaintiff must nudge [its] claims across the line from
conceivable to plausible to resist dismissal.” Wag More Dogs, LLC, 680 F.3d at 365 (internal
quotation marks omitted).
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ANALYSIS
Defendants move to dismiss the subject Amended Complaint on two grounds. First,
they contend that the applicable statute of limitations bars Nichols’s claims, as he filed this
lawsuit more than two years after the alleged discriminatory acts occurred. Second,
Defendants argue that Nichols fails to state claims for which relief may be granted under the
Fair Housing Act and the parallel Maryland law. Each argument will be addressed in turn.
A. Limitations
Under the Fair Housing Act (“FHA”), 42 U.S.C. § 3601, et seq., a private person must
file his action “not later than 2 years after the occurrence or the termination of an alleged
discriminatory housing practice, . . . whichever occurs last, to obtain appropriate relief with
respect to such discriminatory housing practice . . .”7 42 U.S.C. § 3613(a)(1)(A). The
calculation of the limitations period excludes “any time during which an administrative
proceeding under this subchapter was pending with respect to a complaint or charge under
this subchapter based upon such discriminatory housing practice.” 42 U.S.C. § 3613(a)(1)(B).
If the claimed discrimination is a “continuing violation,” then the limitations period is
triggered upon the “last asserted occurrence” of discrimination. Baltimore Neighborhoods, Inc. v.
Rommel Builders, Inc., 40 F. Supp. 2d 700, 710 (D. Md. 1999) (quoting Havens Realty Corp. v.
Coleman, 455 U.S. 363, 381 (1982)).
In this case, the latest occurrence of alleged discrimination is Carriage House’s denial
of Nichols’s modification request on November 17, 2010. Assuming that the Commission’s
fact-finding conference tolled the limitations period, the period again began to run on March
Maryland law applies the same two-year limitations period to state law housing discrimination claims. Md. Code
Ann., State Gov’t, § 20-1035(b)(1).
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22, 2012, the date of the issuance of the written findings. Plaintiff, however, filed the subject
action on November 17, 2014, over two years after the limitations period commenced.
Moreover, Nichols alleges no recent acts of discrimination to demonstrate an
ongoing violation that could cure the timeliness issue. A court’s review of a motion to
dismiss under to Rule 12(b)(6) generally is “limited to considering the sufficiency of
allegations set forth in the complaint and the ‘documents attached or incorporated into the
complaint.’” Zak v. Chelsea Therapeutics Int’l, Ltd., --- F.3d ----, 2015 WL 1137142, *7 (4th Cir.
2015) (quoting E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 448 (4th Cir.
2011)). A court, however, may consider documents attached to a defendant’s motion to
dismiss if that document “was integral to and explicitly relied on in the complaint and if the
plaintiff[] do[es] not challenge its authenticity.” Pasternak & Fidis, --- F. Supp. 3d ----, 2015
WL 1405395, at *4.
As discussed above, Plaintiff filed the Amended Complaint to include allegations that
Defendants denied his June 10, 2014 “request” for a modification of his driveway. Amend.
Compl. ¶¶ 52-55. Yet, Nichols’s June 10, 2014 letter does not refer to any specific “handicap accessibilities,” let alone the driveway modification at issue here. Defs.’ Mot. to Dismiss
the Amend. Compl. Ex. D, ECF No. 11-5. Further, Defendants’ response merely asks
Nichols to submit any such requests in accordance with Carriage House rules. Defs.’ Mot. to
Dismiss the Amend. Compl. Ex. E, ECF No. 11-6. Thus, the letters that are integral to and
explicitly mentioned by Nichols in the Amended Complaint simply do not demonstrate any
recent or ongoing discrimination. Plaintiff’s claims remain a single untimely “occurrence” of

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discrimination. The additional allegations of the Amended Complaint cannot render his
claims timely.
B. Failure to State a Claim
Had Nichols timely filed the present action, his claims under the FHA and parallel
state law fail to state claims for which relief may be granted.8 The FHA prohibits
discrimination 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 . . . that person[.]” 42 U.S.C. § 3604(f)(2)(A). This discrimination
includes: (1) “a refusal to permit, at the expense of the handicapped person, reasonable
modifications of existing premises occupied . . . by such person if such modifications may be
necessary to afford such person full enjoyment of the premises[;]” and (2) “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[.]” 42 U.S.C. § 3604(f)(3)(A)-(B). The FHA clearly prohibits certain discrimination
in the provision of housing, but it only requires modifications and accommodations that
present a handicapped person with “an equal opportunity to use and enjoy a dwelling.”
Bryant Woods Inn, Inc. v. Howard County, 124 F.3d 597, 605 (4th Cir. 1997).
In this case, Nichols has stated neither a modification claim nor an accommodation
claim under the FHA. Regarding the modification claim, he never states that he will pay for
the requested modification. In fact, he specifically refused to pay during the fact-finding

The state law provisions upon which Plaintiff relies essentially mirror the protections and prohibitions of the
FHA. Compare Md. Code Ann., State Gov’t, §§ 20-706(b)(1)-(4), with 42 U.S.C. §§ 3604(f)(2)-(3). His state law
allegations thus fail to state claims for which relief may be granted for the same reasons his federal claims fail.
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conference convened by the Maryland Commision on Civil Rights. Plaintiff claims that
Defendants could have “inferred” a willingness to pay, but provides no facts to support such
a statement. Even if such an inference could be made, the plain language of Section
3604(f)(3)(A) requires, as a prerequisite, that the modification be made at the plaintiff’s
expense. Nichols thus does not state a claim for a reasonable modification under the FHA.
Turning next to the accommodations claim, Nichols does not refer to any “rules,
policies, practices, or services” from which he requested an accommodation. He desires a
driveway extension of 228 inches, which is certainly a “modification[] of existing premises,”
but points to no “rules, policies, practices, or services” from which he needs relief. Plaintiff’s
allegations concern a request for a reasonable modification, not a request for a reasonable
accommodation. He thus fails to state an accommodation claim under the FHA.
In sum, Nichols’s claims are untimely and deficient under Rule 12(b)(6) of the
Federal Rules of Civil Procedure. Accordingly, his Complaint is DISMISSED.
CONCLUSION
For the reasons stated above, Defendants’ Motion to Dismiss (ECF No. 7) is MOOT
and Defendants’ Motion to Dismiss the Amended Complaint (ECF No. 11) is GRANTED.

A separate Order follows.

Dated:

July 15, 2015

/s/______________________________
Richard D. Bennett
United States District Judge
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