Batun v. Omaha Housing Authority et al

Filing 7

MEMORANDUM AND ORDER - Plaintiff's claims against Defendants may proceed and service is warranted. To obtain service of process on Defendants, Plaintiff must complete and return the summons forms which the Clerk of the court will provide. The Clerk of the court shall send three summons forms and three USM-285 forms to Plaintiff together with a copy of this Memorandum and Order. Plaintiff shall, as soon as possible, complete the forms and send the completed forms back to the Clerk of t he court. In the absence of the forms, service of process cannot occur. The Clerk of the court is directed to set a pro se case management deadline in this case with the following text: March 31, 2015: Check for completion of service of summons. Plaintiff's Motion to Appoint Counsel (Filing No. 6 ) is denied without prejudice to reassertion. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party 3 summonses and 285 forms)(GJG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
ABDULRAZAK BATUN,
Plaintiff,
v.
OMAHA HOUSING AUTHORITY,
CLIFFORD SCOTT, and CINDY
COSENTINO,
Defendants.

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8:14CV217

MEMORANDUM
AND ORDER

Plaintiff filed his Complaint in this matter on July 25, 2014. (Filing No. 1.) The
court has given Plaintiff leave to proceed in forma pauperis. (Filing No. 5.) The court
now conducts an initial review of the Complaint to determine whether summary
dismissal is appropriate under 28 U.S.C. § 1915(e)(2).
I.

SUMMARY OF COMPLAINT

Plaintiff is a resident of Omaha, Nebraska, and is a practicing Muslim. During
the events described in the Complaint, Plaintiff lived at the Jackson Tower apartment
complex in Omaha, Nebraska. Plaintiff alleges Jackson Tower is owned and operated
by the Omaha Housing Authority (“OHA”). Plaintiff alleges he was subject to
discriminatory statements and actions by employees of the OHA and tenants acting at
the direction of the OHA. For example, Plaintiff alleges Defendant Cindy Cosentino
gave Plaintiff a book about Islamic terrorism and made threats to him based on his
religion. Plaintiff alleges he complained to OHA officials about the discriminatory
statements and harassment—including to Defendant Clifford Scott—but his complaints
were ignored. All of this apparently culminated in Plaintiff’s eviction on August 15,
2012.

II.

APPLICABLE LEGAL STANDARD

The court is required to review in forma pauperis complaints to determine
whether summary dismissal is appropriate. See 28 U.S.C. § 1915(e)(2). The court must
dismiss a complaint or any portion thereof that states a frivolous or malicious claim,
that fails to state a claim upon which relief may be granted, or that seeks monetary
relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B).
Pro se plaintiffs must set forth enough factual allegations to “nudge[] their claims
across the line from conceivable to plausible,” or “their complaint must be dismissed”
for failing to state a claim upon which relief can be granted. Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 70 (2007); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(“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.”). Regardless of whether a plaintiff is represented or is appearing pro se, the
plaintiff’s complaint must allege specific facts sufficient to state a claim. See Martin
v. Sargent, 780 F.2d 1334, 1337 (8th Cir. 1985). A pro se plaintiff’s allegations must
be construed liberally. Burke v. North Dakota Dep’t of Corr. & Rehab., 294 F.3d 1043,
1043-44 (8th Cir. 2002) (citations omitted).
III.

LEGAL ANALYSIS

The Fair Housing Act (“FHA”) prevents discrimination “against any person in
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,
familial status, or national origin.” 42 U.S.C. § 3604(b). In addition to claims based
on discrimination, the FHA makes it “unlawful to coerce, intimidate, threaten, or
interfere with any person” attempting to exercise his rights under the FHA. 42 U.S.C.
§ 3617. A tenant subject to unlawful discrimination pursuant to the FHA can bring a
private cause of action seeking damages. 42 U.S.C. § 3613; Neudecker v. Boisclair
Corp, 351 F.3d 361, 363 (8th Cir. 2003).
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Plaintiff is a Muslim. He alleges employees of the OHA and tenants of his
apartment complex made discriminatory statements about his religion to him. The
Complaint further alleges other tenants took discriminatory actions against him. He
also alleges that his complaints about the statements and actions to the OHA were
largely ignored and that he was eventually evicted as a result of his religion and/or his
actions in complaining about the treatment he allegedly received while a resident of the
Jackson Tower apartment complex. Liberally construed, Plaintiff’s Complaint states
a claim for relief under the FHA. Accordingly, the claim may proceed to service of
process. The court cautions Plaintiff that this is only a preliminary determination based
on the allegations of the Complaint. This is not a determination of the merits of
Plaintiff’s claims or potential defenses thereto.
IV.

MOTION TO APPOINT COUNSEL

Plaintiff filed a motion seeking the appointment of counsel. (Filing No. 6.) The
court cannot routinely appoint counsel in civil cases. In Davis v. Scott, 94 F.3d 444,
447 (8th Cir. 1996), the Eighth Circuit Court of Appeals explained that “[i]ndigent civil
litigants do not have a constitutional or statutory right to appointed counsel. . . . The
trial court has broad discretion to decide whether both the plaintiff and the court will
benefit from the appointment of counsel . . . .” Id. (quotation and citation omitted). No
such benefit is apparent here. Thus, the request for the appointment of counsel is
denied without prejudice to reassertion.
IT THEREFORE ORDERED that:
1.
Plaintiff’s claims against Defendants may proceed and service is
warranted.
2.
To obtain service of process on Defendants, Plaintiff must complete and
return the summons forms which the Clerk of the court will provide. The Clerk of the
court shall send three summons forms and three USM-285 forms to Plaintiff together
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with a copy of this Memorandum and Order. Plaintiff shall, as soon as possible,
complete the forms and send the completed forms back to the Clerk of the court. In the
absence of the forms, service of process cannot occur.
3.
Upon receipt of the completed forms, the Clerk of the court will sign the
summons forms, to be forwarded with a copy of the Complaint to the U.S. Marshal for
service of process. The Marshal shall serve the summons and Complaint without
payment of costs or fees. Service may be by certified mail pursuant to Fed. R. Civ. P.
4 and Nebraska law in the discretion of the Marshal. The Clerk of the court will copy
the Complaint, and Plaintiff does not need to do so.
4.
Fed. R. Civ. Pro. 4 requires service of a complaint on a defendant within
120 days of filing the complaint. However, because in this order Plaintiff is informed
for the first time of these requirements, Plaintiff is granted, on the court’s own motion,
an extension of time until 120 days from the date of this order to complete service of
process.
5.
Plaintiff is hereby notified that failure to obtain service of process on a
defendant within 120 days of the date of this order may result in dismissal of this matter
without further notice as to such defendant. A defendant has 21 days after receipt of
the summons to answer or otherwise respond to a complaint.
6.
The Clerk of the court is directed to set a pro se case management deadline
in this case with the following text: March 31, 2015: Check for completion of service
of summons.
7.
The parties are bound by the Federal Rules of Civil Procedure and by the
Local Rules of this court. Plaintiff shall keep the court informed of his current address
at all times while this case is pending. Failure to do so may result in dismissal.

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8.
Plaintiff’s Motion to Appoint Counsel (Filing No. 6) is denied without
prejudice to reassertion.
DATED this 1st day of December, 2014.
BY THE COURT:
Richard G. Kopf
Senior United States District Judge

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