Cartwright v. State of Nebraska, City of Sidney, Cheyenne County et al
MEMORANDUM AND ORDER - The City Defendants' Motion to Dismiss (Filing No. 23 ) is denied; Bartling's Motion to Dismiss (Filing No. 16 ) is granted; Bartling is dismissed as a defendant from the above-captioned action; and Defendant s City of Sidney, Nebraska, Joanie Matthes, Jordan Ball, and Gary Pearson, in their official capacities, will respond to the Amended Complaint on or before July 10, 2015. Ordered by Chief Judge Laurie Smith Camp. (Copy mailed to pro se party)(MKR)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
JENNIFER LYNN CARTWRIGHT,
MEMORANDUM AND ORDER
LORI BARTLING, JORDAN BALL,
Former City Prosecutor, CITY OF
SIDNEY, NEBRASKA, JONY MATHEWS,
Code Enforcer; and GARY PEARSON,
This matter is before the Court on the Motion to Dismiss (Filing No. 16) filed by
Defendant Lori Bartling (“Bartling”) and the Motion to Dismiss or, in the Alternative,
Motion for a More Definite Statement (Filing No. 23) filed by Defendants City of Sidney,
Nebraska (“City of Sidney”), Joanie Matthes (“Matthes”)1 Jordan Ball, and Gary Pearson
(collectively “the City Defendants”). Bartling and the City Defendants will be referred to
herein collectively as “Defendants.” For the reasons stated below, Bartling’s Motion will
be granted and the City Defendants’ Motion will be denied.
Plaintiff Jennifer Lynn Cartwright (“Cartwright”) filed her Amended Complaint
(Filing No. 11) on December 8, 2014. She is not represented by counsel. To draft her
Amended Complaint, she used a pro se civil complaint form similar to the form available
Spelled “Jony Mathews” in Plaintiff’s Amended Complaint.
on this Court’s website.2 Under the heading “Statement of Claim(s)” the form complaint
instructs the pro se filer as follows:
State briefly the facts of your claim. Describe how each defendant is
involved. You do not need to give legal arguments or cite cases or
statutes. Use as much space as you need to state the facts. (Attach extra
sheets if necessary.)
(Filing No. 11 at ECF 2.)
Rather than describe the facts of her claims in her Amended Complaint,
Cartwright attached a “Commission Determination” and “Final Investigative Report” from
the Nebraska Equal Opportunity Commission (collectively the “NEOC Documents”).
(See Filing No. 11. at ECF 6-46.) Defendants have moved to dismiss for failure to state
a claim and on immunity grounds.
For purposes of the pending motions, Cartwright’s well-pled facts are accepted
as true, though the Court need not accept proposed conclusions of law. Because she is
pro se, her Amended Complaint must be liberally construed.3 It is clear that Cartwright
attached the NEOC Documents to her Amended Complaint in order to provide the
factual basis for her claims. However, these documents include responses and
defenses apparently made by Defendants. Construing the Amended Complaint liberally,
the Court concludes that Cartwright did not intend that the statements allegedly made
by Defendants be accepted as true for purposes of the pending motions. Therefore,
“A pro se complaint must be liberally construed, and pro se litigants are held to a lesser
pleading standard than other parties . . . .” Topchian v. JPMorgan Chase Bank, N.A., 760 F.3d 843, 849
(8th Cir. 2014) (internal quotation marks and citations omitted).
unless otherwise stated, the factual summary bellow is drawn from facts stated in the
Commission Determination (Filing No. 11 at ECF 6); the Final Investigative Report
findings (Filing No. 11 at ECF 7-8); Cartwright’s Interviews (Filing No. 11 at ECF 13-19;
24-27); documents provided to HUD4 by Cartwright (Filing No. 11 at 28-32; 43); and
documents provided by Equal Opportunity Specialists (11 at ECF 32-33).
During the time period relevant to Cartwright’s Amended Complaint, she lived in
a small town where everybody knew her and her family. (Filing No. 11 at ECF 25.) In
that town, she and her boyfriend, Troy Frerichs (“Frerichs”), lived together in a single
family home owned by Frerichs. (Filing No. 11 at ECF 13, 19.) Frerichs and Cartwright
shared ownership of a dog named Paris. (Filing No. 11 at ECF 13,18.) Frerichs also
owned a dog named Putsy, and Cartwright owned two other dogs named Midget and
Boogie. (Filling No. 11 at ECF 13, 18, 28.) Altogether, Frerichs and Cartwright housed
four dogs on Frerichs’s property. (Filing No. 11 at ECF 18.)
Midget and Boogie were service dogs. (Filling No. 11 at ECF 13,18.) During the
time relevant to her Amended Complaint, Cartwright was disabled. (Filing No. 11 at ECF
16.) She was diagnosed with Post Traumatic Stress Disorder (“PTSD”) in 1995 (Filing
No. 11 at ECF 16), and at some point her doctor prescribed two service dogs to assist
her in coping with her impairments and alert her to danger.5 (Filing No. 11 at ECF 17,
44.) Midget, Boogie, and Paris were licensed with the City of Sidney. (Filing No. 11 at
Housing and Urban Development (“HUD”) is “the agency tasked with implementing the [Fair
Housing Act] . . . .” The Comm. Concerning Cmty. Improvement v. City of Modesto, 583 F.3d 690, 711
(9th Cir. 2009).
A letter from her doctor dated January 26, 2012, states the doctor prescribed two services dogs.
(Filing No. 11 at ECF 44.)
18.) Midget and Boogie were also registered as service dogs some time prior to July 25,
2011. (Filing No. 11 at ECF 18.)
On July 25, 2011, Cartwright asked that Defendants allow her to have two
service animals, but Defendants refused to grant her request. (Filing No. 11 at ECF 7.)
As of July 25, 2011, Defendants were aware of Cartwright’s disabilities because she
had provided medical documentation and certification establishing her need for service
animals. (Filing No. 11 at 16,17.)
On or about August 22, 2011, Cartwright’s service animals were found to be in
violation of a city ordinance, and fines were levied against Cartwright. (Filing No. 11 at
ECF 8.) Thereafter, she was threatened with the forced removal and destruction of her
service animals. (Filing No. 11 at ECF 8.) Cartwright provided the City of Sidney with
documentation and certification that both of her dogs were service animals and
medically necessary. (Filing No. 11 at ECF 7.) Nevertheless, she was charged with
“keeping of three or more dogs” and “not having dogs licensed.” (Filing No. 11 at ECF 78,14.) Thereafter, she was cited and fined for exceeding the maximum number of dogs
and for having an unlicensed dog. (Filing No. 11 at ECF 18.)
Frerichs, who is male and is not disabled, was not cited for exceeding the
maximum of three dogs allowed within the city limits. (Filing No. 11 at ECF 8.) When
Cartwright asked code enforcer, Jordan Ball, “why she was the one being served when
her dogs were in compliance in the first place, and the dog that [was] not licensed [was]
[Frerichs’s] dog, she was told that it was to cut down on paperwork . . . .” (Filing 11 at
ECF 15,19 (original in all capital letters).)
On December 12, 2011, Cartwright was unable to attend a scheduled court
proceeding because she was having surgery. (Filing No. 11 at ECF 8.) She called the
court clerk, Bartling, on December 12, 2011, and Bartling informed her that “her only
option was to come and pay the fine or a warrant for [her] arrest would be issued.”
(Filing No. 11 at ECF 19.) At the hearing, a judge rendered a decision against
Cartwright, and on December 13, 2011, Bartling, threatened to bar Cartwright from
contacting the County Court. (Filing No. 11 at ECF 8.)
On December 23, 2011, Cartwright filed a fair housing complaint. (Filing No. 11
at ECF 8.) The NEOC issued the following charges of discrimination pursuant to Neb.
Rev. Stat § 20-333: “The [City of Sidney] has discriminated against [Plaintiff] on the
issue of terms and conditions on the basis of sex, and on the issues of terms and
conditions and reasonable accommodation on the basis of disability (failure to allow
exemption for service animals).” (Filing No. 11 at ECF 6.) The NEOC also issued a “no
reasonable cause determination” for Cartwright’s “charge of discrimination on the issue
of failure to accommodate and the basis of disability (licensing of service animals), and
the issue of harassment and intimidation on the basis of retaliation . . . .” (Filing No. 11
at ECF 6.)
Beginning around February 2012, city law enforcement officers frequently drove
by Cartwright’s residence, parked close to her residence, and sat. (Filing No. 11 at ECF
8.) Cartwright lived in a cul-de-sac, and officers rarely drove by her house “before she
filed her complaint.” (Filing No. 11 at ECF 25.) Around March 15, 2012, city and county
law enforcement officers handcuffed her non-custodial son, Dillon Grabowski, and
“threatened to Taser him if he did not go to the police department without his mother.”
(Filing No. 11 at ECF 8, 24.) After several hours in a holding cell, Grabowski was cited
for interfering with a police officer. (Filing No. 11 at ECF 8.) The law enforcement
officers involved in the March 15, 2012, incident were aware of Cartwright’s complaint of
housing discrimination. (Filing No. 11 at ECF 8.) She wanted to file a police report
against her son’s guardian, but she was not allowed to do so. (Filing No. 11 at ECF 8.)
After the incident with her son, Cartwright was afraid to contact law enforcement.
(Filing No. 11 at ECF 25.) On around April 12, 2012, a domestic abuse incident
occurred between Cartwright and Frerichs. (Filing No. 11 at ECF 8.) Two officers forced
Cartwright and her son to vacate the premises. (Filing No. 11 at ECF 8.) Frerichs was
not arrested even though Cartwright had visible signs of bruising. (Filing No. 11 at ECF
On or about April 16, 2012, Cartwright picked up her daughter with her exhusband’s permission. (Filing No. 11 at ECF 8.) Sometime after picking up her
daughter, Plaintiff received a phone call from Officer Tim Craig informing her that if she
returned to the property where her daughter lived, she would be arrested for disturbing
the peace. (Filing No. 11 at ECF 8.)
STANDARDS OF REVIEW
Fed. R. Civ. P. 12(b)(6), Failure to State a Claim
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). “[A]lthough a complaint need not
include detailed factual allegations, ‘a plaintiff's obligation to provide the grounds of his
entitlement to relief requires more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not do.’” C.N. v. Willmar Pub. Sch.,
Indep. Sch. Dist. No. 347, 591 F.3d 624, 629-30 (8th Cir. 2010) (quoting Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 555 (2007)). “Instead, the complaint must set forth ‘enough
facts to state a claim to relief that is plausible on its face.’” Id. at 630 (citing Twombly,
550 U.S. at 570).
“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.” Ritchie v. St. Louis Jewish Light, 630 F.3d 713, 716 (8th Cir. 2011)
(quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)) (internal quotation marks omitted).
“Courts must accept . . . specific factual allegations as true but are not required to
accept . . . legal conclusions.” Outdoor Cent., Inc. v. GreatLodge.com, Inc., 643 F.3d
1115, 1120 (8th Cir. 2011) (quoting Brown v. Medtronic, Inc., 628 F.3d 451, 459 (8th
Cir. 2010)) (internal quotation marks omitted). “A pleading that merely pleads ‘labels
and conclusions,’ or a ‘formulaic recitation’ of the elements of a cause of action, or
‘naked assertions’ devoid of factual enhancement will not suffice.” Hamilton v. Palm,
621 F.3d 816, 817-18 (8th Cir. 2010) (quoting Iqbal, 556 U.S. at 678). The complaint’s
factual allegations must be “sufficient ‘to raise a right to relief above the speculative
level.’” Williams v. Hobbs, 658 F.3d 842, 848 (8th Cir. 2011) (quoting Parkhurst v.
Tabor, 569 F.3d 861, 865 (8th Cir. 2009)).
When ruling on a defendant's motion to dismiss, a judge must rule “on the
assumption that all the allegations in the complaint are true,” and “a well-pleaded
complaint may proceed even if it strikes a savvy judge that actual proof of those facts is
improbable, and ‘that a recovery is very remote and unlikely.’” Twombly, 550 U.S. at
555 & 556 (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)). The complaint,
however, must still “include sufficient factual allegations to provide the grounds on which
the claim rests.” Drobnak v. Andersen Corp., 561 F.3d 778, 783 (8th Cir. 2009).
“Two working principles underlie . . . Twombly. First, the tenet that a court must
accept as true all of the allegations contained in a complaint is inapplicable to legal
conclusions. Threadbare recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678 (citing Twombly,
550 U.S. at 555). “Second, only a complaint that states a plausible claim for relief
survives a motion to dismiss.” Id. at 679 (citing Twombly, 550 U.S. at 556). “Determining
whether a complaint states a plausible claim for relief will . . . be a context-specific task
that requires the reviewing court to draw on its judicial experience and common sense.”
Regardless of whether a plaintiff is represented or 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). However, a pro se plaintiff’s allegations must be
construed liberally in order to “do substantial justice.” Erickson v. Pardus, 551 U.S. 89,
94 (2007) (quoting Fed. R. Civ. P. 8(f)) (internal quotation marks omitted). Although pro
se complaints must be liberally construed, they must still “allege sufficient facts to
support the claims advanced”, and the court need not “supply additional facts, nor . . .
construct a legal theory for plaintiff that assumes facts that have not been pleaded.”
Stone v. Harry, 364 F.3d 912, 914 (8th Cir. 2004) (internal quotation marks and citations
The City Defendants moved to dismiss Cartwright’s claims for failure to state a
claim, or, in the alternative under the doctrine of qualified immunity. Bartling moved to
dismiss Cartwright’s claims for failure to state a claim, or, alternatively, under the
doctrine of absolute judicial immunity.
In its previous Memorandum and Order, this Court stated that “it appears Plaintiff
intends to sue Defendants for discrimination against her on the basis of sex and
disability in violation of the Fair Housing Act [“FHA”], 42 U.S.C. §§ 3601-3631, and the
Nebraska Fair Housing Act [“NFHA”], Neb. Rev. Stat. § 20-333.” (Filing No. 13 at ECF
1.) In their briefs (Filing Nos. 17 and 23-1), Defendants devote little argument to an
analysis of whether Cartwright sufficiently stated claims under the FHA and the NFHA.
Instead, the Defendants emphasize her failure to follow the Federal Rules of Civil
Procedure and failure to include her factual allegations directly in the form complaint,
instead attaching the NEOC Documents.
A district court should not dismiss a pro se complaint for failure to comply with
Federal Rules of Civil Procedure where the pleadings narrate “a sequence of events
which arguably gave rise to a cause of action and [can] be addressed by a responsive
pleading.” See Miles v. Ertl Co., 722 F.2d 434 (8th Cir. 1983) (“[I]n circumstances where
a petitioner's poverty forces him to proceed pro se, a court ought not to reject on
technical grounds a right asserted within the hand-drawn (pro se ) complaint.”) (internal
quotation marks and citations omitted).
Liberally construed, the Court finds that Cartwright alleged FHA and NFHA
claims against the City Defendants, but no claim for relief with respect to Bartling.
THE CITY DEFENDANTS
The City Defendants moved to dismiss Cartwright’s Amended Complaint on the
grounds that qualified immunity bars her claims. “‘[Q]ualified immunity is an affirmative
defense’ and ‘it will be upheld on a 12(b)(6) motion only when the immunity is
established on the face of the complaint.’” Hafley v. Lohman, 90 F.3d 264, 266 (8th Cir.
1996) (quoting Weaver v. Clarke, 45 F.3d 1253, 1255 (8th Cir. 1995)). “Qualified
immunity shields public officials performing discretionary functions from liability for
conduct that ‘does not violate clearly established statutory or constitutional rights of
which a reasonable person would have known.’” Parker v. Chard, 777 F.3d 977, 979
(8th Cir. 2015) (quoting Meehan v. Thompson, 763 F.3d 936, 940 (8th Cir. 2014)).
First, the Court notes that, because it is a governmental entity, qualified immunity
is not an available defense to the City of Sidney. Johnson v. Outboard Marine Corp.,
172 F.3d 531, 535 (8th Cir. 1999) (“Qualified immunity is not a defense available to
governmental entities, but only to government employees sued in their individual
capacity.”). With respect to the individually named city defendants, Jordan Ball, Joanie
Matthes, and Gary Pearson, the Court notes that, in her Amended Complaint,
Cartwright did not specify the capacity in which those parties are sued. Accordingly, the
Court assumes she sued those defendants in their official capacities. See Johnson, 172
F.3d at 535 (Where a plaintiff fails to “expressly and unambiguously” state that a public
official is sued in his individual capacity in the pleadings, the court “assume[s] that the
defendant is sued only in his or her official capacity.”).
It is long established that “[o]fficial-capacity suits . . . generally represent only
another way of pleading an action against an entity of which an officer is an agent. . . .
As long as the government entity receives notice and an opportunity to respond, an
official-capacity suit is, in all respects other than name, to be treated as a suit against
the entity.” Kentucky v. Graham, 473 U.S. 159, 165-66 (1985) (internal quotation marks
and citations omitted). There is no dispute that the entity of which Jordan Ball, Joanie
Matthes, and Gary Pearson are agents, the City of Sidney, is a party to this suit and has
had an opportunity to respond. Therefore, “in all respects other than name” this suit is a
suit against the City of Sidney, see Graham, 473 U.S. at 165-66, and the City
Defendants’ motion to dismiss on qualified immunity grounds will be denied.
FHA AND NFHA CLAIMS
Cartwright alleged that the City Defendants discriminated against her on the
basis of her sex and disability. She also alleged that the City Defendants harassed and
intimidated her in retaliation for filing a fair housing complaint.6 A plaintiff must prove
discriminatory intent to prevail on a claim under the FHA. Dirden v. Dep't of Hous. &
Urban Dev., 86 F.3d 112, 114 (8th Cir. 1996). “Absent direct evidence of discrimination,
courts apply the burden-shifting analysis articulated in McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973).” Tesemma v. Evans, No. CIV. 09-2744 DSD/JJK, 2011 WL
3418227, at *2 (D. Minn. Aug. 4, 2011) (citing Dirden, 86 F.3d at 114; United States v.
Badgett, 976 F.2d 1176, 1178 (8th Cir. 1992)). “Pursuant to that framework, the plaintiff
Although Cartwright’s allegations do not involve the sale or rental of her home, post-acquisition
claims are actionable under sections 3604 and 3617 of the FHA. United States v. Koch, 352 F. Supp. 2d
970, 975-76 (D. Neb. 2004) (“[T]he Eighth Circuit has held that a plaintiff can base a section 3604 or 3617
claim on discriminatory acts that occurred after housing had been acquired.”) (citing Neudecker, 351 F.3d
must first make a prima facie showing of discrimination.” Id. (citing McDonnell Douglas,
411 U.S. at 802). The requirements of a prima facie showing of discrimination “will vary
from case to case, depending on the allegations and the circumstances.” Badgett, 976
F.2d at 1178. If a plaintiff establishes a prima facie case, the burden shifts to the
defendant to articulate a legitimate, nondiscriminatory reason for the defendant's
conduct. Id. The burden then shifts back to the plaintiff who must rebut the defendant's
proffered reason by showing that it is pretext for unlawful discrimination. McDonnell
Douglas, 411 U.S. at 802. The same framework applies to Cartwright’s claims under the
NFHA. See Osborn v. Kellogg, 547 N.W.2d 504, 511 (Neb. App. 1996).
To survive a 12(b)(6) motion to dismiss, “a plaintiff need not plead facts
establishing a prima facie case of discrimination under McDonnell Douglas . . . .” Hager
v. Arkansas Dep't of Health, 735 F.3d 1009, 1014 (8th Cir. 2013) (citing Swierkiewicz v.
Sorema N. A., 534 U.S. 506, 510-11 (2002)). The complaint need only contain “‘a short
and plain statement of the claim showing the pleader is entitled to relief.’ . . . ‘Such a
statement must simply give the defendant fair notice of what the plaintiff's claim is and
the grounds upon which it rests.’” Id. (internal citations and quotation marks omitted).
Cartwright alleged that Defendants discriminated against her because she is
female. (See Filing No. 11 at ECF 7.) Under section 3604(b) of the FHA, it is unlawful
“[t]o 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, familial status, or national origin.” 42 U.S.C. §
3604(b). The NFHA prohibits the same. Neb. Rev. Stat. § 20-318(2) (Reissue 2012).
Cartwright has not alleged any direct evidence of sex discrimination, and Court
will analyze her claims of sex discrimination under the McDonnell Douglas framework.
To establish a prima facie case, Cartwright “must show that she is a member of a
protected class and that she was ‘not offered the same terms, conditions or privileges of
rental under circumstances that give rise to a reasonable inference of unlawful
discrimination.’” Tesemma, 2011 WL 3418227, at *3 (citing Groteboer v. Eyota Econ.
Dev. Auth., 724 F.Supp.2d 1018, 1023 (D.Minn.2010)).
Here, there is no dispute that Cartwright, a female, is a member of a protected
class. She alleged that both she and Frerichs lived in a house with four dogs. She was
cited for exceeding the City of Sidney’s three-dog limit and for having an unlicensed
dog, while Frerichs, a male, was not. Liberally construing the Amended Complaint,
Cartwright’s allegations of sex discrimination under the FHA and NFHA give rise to a
reasonable inference of unlawful discrimination and give the Defendants fair notice of
her sex discrimination claim and the grounds upon which it rests; therefore, her
allegations of sex discrimination are sufficient to withstand the City Defendants’ Motion
to Dismiss under Federal Rule of Civil Procedure 12(b)(6).
2. Disability Discrimination
Cartwright alleged that the City Defendants discriminated against her on the
basis of her disability because the City Defendants refused to grant her request for a
reasonable accommodation. (See Filing No. 11 at ECF 7.) Under the FHA and NHFA it
is unlawful “[t]o 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 with
such dwelling” on the basis of that person’s disability. 42 U.S.C. § 3604(f)(2); see also
Neb. Rev. Stat. § 20-319(1)(b)(Reissue 2012). Discrimination prohibited by the FHA and
NFHA includes the “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)(B);
Neb. Rev. Stat. § 20-319(2)(b).
To prevail on a reasonable accommodations claim under § 3604(f)(3)(B), a
plaintiff must prove:
(1) that the plaintiff . . . is handicapped within the meaning of [the FHA]; (2)
that the defendant knew or should reasonably be expected to know of the
handicap; (3) that accommodation of the handicap may be necessary to
afford the handicapped person an equal opportunity to use and enjoy the
dwelling; (4) that the accommodation is reasonable; and (5) that defendant
refused to make the requested accommodation.
DuBois v. Ass'n of Apartment Owners of 2987 Kalakaua, 453 F.3d 1175, 1179 (9th Cir.
2006). The FHA defines handicap as “a physical or mental impairment which
substantially limits one or more of such person's major life activities, . . . a record of
having such an impairment, or . . . being regarded as having such an impairment . . . .”
42 U.S.C. section 3602(h).
accommodation claims.” Groteboer, 724 F. Supp. 2d at 1024 (citing Peebles v. Potter,
354 F.3d 761, 766 (8th Cir. 2004)). After a plaintiff shows “that the requested
accommodation was ‘reasonable on its face.’ . . . [The defendant] must then ‘show
special (typically case-specific) circumstances that demonstrate undue hardship in the
particular circumstances.’” Id.
Here, Cartwright alleged that she suffered from a disability, PTSD; as of the date
she requested an accommodation, July 25, 2011, Defendants were aware of her
disabilities; as of July 25, 2011, she provided Defendants with medical documentation
and certification establishing her need for service animals; her doctor prescribed two
service dogs to assist her in coping with her impairments and alert her to danger; and
on July 25, 2011, she asked that Defendants allow her to have two service animals, but
Defendants refused. Cartwright also alleged facts supporting a finding that her request
was reasonable given the size of the four dogs7 and the nature of the property on which
she resided. (See Filing No. 11 at ECF 29 (describing Frerichs’s house as sitting on a
one-acre lot and fenced in with a five foot chain link fence.) The Court concludes that
Cartwright’s alleged facts give the City Defendants fair notice of her disability
discrimination claim and the grounds upon which it rests; and her allegations of
disability discrimination are sufficient to withstand the City Defendants’ Motion to
Dismiss under Federal Rule of Civil Procedure 12(b)(6).
Cartwright alleged that the City Defendants “harass[ed] and intimidate[d] her in
retaliation for filing a fair housing complaint . . . on December 23, 2011.” (Filing No. 11
at ECF 8.) Under the FHA, it is unlawful “to coerce, intimidate, threaten, or interfere with
any person in the exercise or enjoyment of, or on account of his having exercised or
enjoyed . . . any right granted or protected by . . . [42 U.S.C. §] 3604 . . . .” 42 U.S.C. §
3617. Under the NHFA, it is unlawful to “coerce, intimidate, threaten, or interfere with
any person in the exercise of enjoyment of or on account of the person having
The dogs each weighed less than seven pounds. (Filing No. 11 at ECF 13.)
exercised or enjoyed or having aided and encouraged any other person in the exercise
of benefits and rights guaranteed by the Nebraska Fair Housing Act.” Neb. Rev. Stat.
20-344 (Reissue 2012).
Cartwright alleged that after she filed her fair housing complaint, law enforcement
frequently drove by her residence, and parked close to her residence. She alleged that
prior to filing her fair housing complaint, officers rarely drove by her house. She also
described several occasions when she, or members of her family, had negative
interactions with city law enforcement. She alleged that such incidents occurred after
she filed her fair housing complaint. She has also alleged that law enforcement officers
were aware of her complaint of housing discrimination. She claimed that these negative
encounters were “ongoing because she filed her fair housing complaint.” (Filing No. 11
at 8.) The Court concludes that, at this early pleading stage, Cartwright’s allegations are
sufficient to state claims for retaliation under the FHA and NHFA. See Neudecker v.
Boisclair Corp., 351 F.3d 361, 363 (8th Cir. 2003) (plaintiff’s assertion that landlord
threated to evict him as reprisal for his complaint that tenants were engaging in disability
harassment was sufficient to allege a retaliation claim under the FHA).
More Definite Statement
In the alternative to their Motion to Dismiss, the City Defendants ask that this
Court require Cartwright to file a second amended complaint with a more definite
statement. Federal Rule of Civil Procedure 12(e) states that a motion for more definite
statement is proper only if a pleading is “so vague or ambiguous that [a] party cannot
reasonably prepare a response. . . . The motion must . . . point out the defects
complained of and the details desired.” Fed. R. Civ. P. 12(e). Federal Rule of Civil
Procedure 8 requires only “a short and plain statement of the claim showing that the
pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2).
Cartwright alleged that she is female, that she suffers from a disability, and that
the City of Sidney impermissibly discriminated against her on the basis of her sex and
disability when it cited her for having more than three dogs living at her house and for
having an unlicensed dog. She alleged that Frerichs, a male with no disability, with
whom she shared a residence, was not cited for either violation. She also alleged
multiple adverse actions committed by agents of the City of Sidney. These acts
allegedly occurred after Cartwright filed her fair housing complaint, and were committed
by city agents who were aware of her housing complaint. These facts are sufficient to
put the City Defendants on notice of the claims against them, and the City Defendants’
12(e) motion will be denied.
With respect to Bartling, the Court concludes that Cartwright failed to state a
claim for relief under the FHA or under the NFHA. Cartwright alleged that Bartling
committed the following acts: when Cartwright called Bartling on December 12, 2011,
Bartling informed her that “her only option was to come and pay the fine or a warrant for
[her] arrest would be issued” (Filing No. 11 at ECF 19), and Bartling threatened to bar
her from contacting the County Court on December 13, 2011. (Filing No. 11 at ECF 8).
With respect to any retaliation claim Cartwright intended to assert against
Bartling, she failed to state a claim. Her allegations related to Bartling only involve acts
committed prior to the date on which Cartwright filed her fair housing complaint. Thus,
those acts do not provide a basis for a retaliation claim. Further, Cartwright did not
allege that she was actually barred from contacting the court or that she suffered any
other harm as a result Bartling’s actions. Additionally, Cartwright has not alleged any
facts with respect to Bartling that give rise to an inference of discrimination on the basis
of sex or disability. Therefore, Cartwright failed to state any claim for discrimination or
retaliation against Bartling, and Bartling’s motion to dismiss will be granted.8
Liberally construing the Amended Complaint (Filing No. 11), Cartwright stated
claims for sex and disability discrimination, and retaliation, against the City Defendants
in their official capacities. She has not stated any viable claims against Bartling.
IT IS ORDERED:
The City Defendants’ Motion to Dismiss (Filing No. 23) is denied;
Bartling’s Motion to Dismiss (Filing No. 16) is granted;
Bartling is dismissed as a defendant from the above-captioned action; and
Defendants City of Sidney, Nebraska, Joanie Matthes, Jordan Ball, and
Gary Pearson, in their official capacities, will respond to the Amended Complaint on or
before July 10, 2015.
Dated this 18th day of June, 2015.
BY THE COURT:
s/Laurie Smith Camp
Chief United States District Judge
Bartling, Clerk Magistrate for Cheyenne County, also moved to dismiss on immunity grounds
under the doctrine of absolute judicial immunity. However, the Court need not address immunity with
respect to Bartling because, for the reason’s stated, Cartwright’s claims against Bartling will be dismissed
under Fed. R. Civ. P. 12(b)(6).
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