Hamous v. Kestell et al
ORDER this action may proceed without prepayment of the filing fee. Amended Pleadings due by 10/20/2017. Signed by Magistrate Judge Jeremiah C. Lynch on 9/21/2017. (APP) Copy mailed to Hamous
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
JOHN KESTELL, and CHUCK
Plaintiff Jerome Hamous, appearing pro se, presents an application
requesting leave to proceed with this action in forma pauperis. The application is
supported by Hamous’s declaration that makes the showing required by 28 U.S.C.
§ 1915(a). Because it appears he lacks sufficient funds to prosecute this action IT
IS HEREBY ORDERED that his application is GRANTED. This action may
proceed without prepayment of the filing fee, and the Clerk of Court is directed to
file Hamous’s lodged Complaint as of the filing date of his application to proceed
in forma pauperis.
The federal statute under which leave to proceed in forma pauperis is
permitted — 28 U.S.C. § 1915 — also requires the Court to conduct a preliminary
screening of the allegations set forth in the litigant’s pleading. The applicable
provisions of section 1915(e)(2) state as follows:
(2) Notwithstanding any filing fee, or any portion thereof, that may have
been paid, the court shall dismiss the case at any time if the court determines
(A) the allegation of poverty is untrue; or
(B) the action or appeal–
(i) is frivolous or malicious;
(ii) fails to state a claim on which relief may be granted; or
(iii) seeks monetary relief against a defendant who is immune
from such relief.
28 U.S.C. § 1915(e)(2).
Thus, the Court will review Hamous’s pleading to consider whether this
action can survive dismissal under the provisions of section 1915(e)(2), or any
other provision of law. See Huftile v. Miccio-Fonseca, 410 F.3d 1136, 1138, 1142
(9th Cir. 2005).
In 2014 Hamous was tenant residing at the RoseBrier Inn in Kalispell,
Montana. In September, 2014, however, the Defendants evicted him from the
housing facility purportedly for the reasons stated in an eviction notice they
delivered to Hamous. (Doc. 2 at 7 of 14.)
Hamous states that he is disabled. He had a laryngectomy some years ago
that requires him to breath through a tracheotomy. Hamous asserts he did not
commit the actions or behaviors identified in the referenced eviction notice.
Although Hamous’s factual allegations are imprecise, it appears his contention
may be that Defendants evicted him due to his disabilities, not for the reasons
stated in the eviction notice.
Because Hamous is proceeding pro se the Court must construe his pleading
liberally, and the pleading is held “to less stringent standards than formal
pleadings drafted by lawyers[.]” Haines v. Kerner, 404 U.S. 519, 520 (1972). See
also Neitzke v. Williams, 490 U.S. 319, 330 n.9 (1989). Although the Court has
authority to dismiss a defective pleading pursuant to 28 U.S.C. § 1915(e)(2),
a district court should grant leave to amend even if no request to amend the
pleading was made, unless it determines that the pleading could not possibly
be cured by the allegation of other facts.
Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (quoting Doe v. United States,
58 F.3d 494, 497 (9th Cir. 1995)).
Liberally construing Hamous’s allegations, the Court finds he may be
attempting to assert a claim under the Fair Housing Amendments Act, 42 U.S.C. §
3601 et seq. But his allegations are not sufficiently pled to clearly and expressly
state a claim on which relief can be granted.
The Fair Housing Amendments Act makes it unlawful for any person, such
as a landlord, “[t]o 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[.]” 42 U.S.C. § 3604(f)(1)(A). A discrimination claim
may proceed based on either a disparate impact or disparate treatment theory.
Budnick v. Town of Carefree, 518 F.3d 1109, 1114 (9th Cir. 2008). Here,
Hamous’s allegations suggest he contends he was subject to disparate treatment by
Defendants when they evicted him.
A disparate treatment theory of liability requires a plaintiff to establish (1)
he is a member of a protected class, (2) that he was qualified to reside in particular
housing, (3) that he was denied particular housing despite being qualified, and (4)
he was subjected to explicitly differential or discriminatory treatment. Budnick,
518 F.3d at 1114. See also Gant v. Real Property Management, Inc., 2016 WL
3418342, *2 (E.D. Cal. 2016). The plaintiff must establish that the defendant
acted with a discriminatory intent or motive. Wood v. City of San Diego, 678 F.3d
1075, 1081 (9th Cir. 2012).
Upon review of Hamous’s allegations, the Court finds his pleading is
deficient with respect to the facts that must be pled to expressly state a disparate
treatment claim under the parameters discussed above. His allegations must
present sufficient facts to demonstrate it is plausible that Defendants’ conduct
discriminated against him based on his handicap as required under 42 U.S.C. §
Although a court must liberally construe a pro se litigant’s allegations, the
courts need not read into allegations the necessary elements of a federal claim that
simply are not pled by the litigant. “While we are mindful of the generous
pleading standards that apply to civil rights plaintiffs, ‘a liberal interpretation of a
... civil rights complaint may not supply essential elements of the claim that were
not initially pled.’” Chapman v. Pier 1 Imports (U.S.) Inc., 631 F.3d 939, 954 (9th
Cir. 2011) (quoting Pena v. Gardner, 976 F.2d 469, 471 (9th Cir. 1992) (quoting
Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982))).
Based on the foregoing, the Court finds that Hamous’s allegations, as
presently pled in his complaint, are factually deficient – they do not supply the
essential elements of his legal claim and fail to state a claim for relief under the
Fair Housing Amendments Act. Therefore, his pleading is subject to dismissal.
But as noted, in view of Hamous’s status as a pro se litigant, the Court must afford
him an opportunity to amend his pleading to cure the deficiencies in his
IT IS ORDERED that on or before October 20, 2017, Hamous shall file an
amended complaint. The Clerk of Court is directed to forward to Hamous a civil
complaint form for his use in preparing an amended complaint.
Pursuant to Fed. R. Civ. P. 8(a), Hamous’s amended complaint need only set
forth a short and plain statement of his claims against Defendants showing that the
facts of his situation support a discrimination claim as outlined above, and that he
is entitled to relief. His allegations must include all of the facts necessary to
support all of the elements of his legal claim as outlined above.
In the interim, Hamous is cautioned that at all times during the pendency of
this action he shall immediately advise the Court of any change of address and its
effective date. Such notice shall be captioned “NOTICE OF CHANGE OF
ADDRESS.” Failure to file a NOTICE OF CHANGE OF ADDRESS may result
in the dismissal of the action for failure to prosecute pursuant to Fed. R. Civ. P.
41(b), or for failure to state a claim for relief.
Hamous is further advised that his failure to prosecute this action, to comply
with the Court’s orders, or to comply with the Federal Rules of Civil Procedure
may also result in a recommendation that this case be dismissed with prejudice
pursuant to Fed. R. Civ. P. 41(b). The Court may dismiss this case under Rule
41(b) sua sponte under certain circumstances. See, e.g., Link v. Wabash Railroad
Co., 370 U.S. 626, 633 (1962); Hells Canyon Preservation Council v. United
States Forest Serv., 403 F.3d 683, 689 (9th Cir. 2005).
DATED this 21st day of September, 2017.
Jeremiah C. Lynch
United States Magistrate Judge
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