Bolar v. Hunter et al
MEMORANDUM AND ORDER - Plaintiff's motion for leave to amend (Filing No. 6 ) is denied. This action is dismissed without prejudice. Judgment will be entered by separate document. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party) (KLF)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
SHELIA M. BOLAR,
SILVERLEAF INVESTMENTS LLC; )
OAK VIEW APARTMENTS;
DOES 1-30, inclusive; and
CITY OF OMAHA,
Plaintiff, Shelia M. Bolar, filed this case on March 7, 2017, and was granted
leave to proceed in forma pauperis on April 3, 2017. The court now conducts an initial
review of her Complaint (Filing No. 1) to determine whether summary dismissal is
appropriate under 28 U.S.C. § 1915(e)(2).
I. SUMMARY OF COMPLAINT
Bolar alleges she is “an honorably discharged, decorated, service-connected
disabled female African-American veteran” who has right-sided weakness and balance
problems, resulting from a stroke she suffered in 1985, and mild bone degeneration
in both hips. Climbing more than 4 stair steps allegedly causes Bolar great pain and
puts her at risk of falling.
Bolar alleges she rented a third-floor one-bedroom apartment from Silverleaf
Investments and Joseph Hunter, the landlord and property manager for Oak View
Apartments, on September 24, 2016, with the understanding that she would be able
to move into a first-floor studio apartment in a day or two after a broken window was
repaired in that unit. Bolar alleges Hunter refused her request to move down to the
first-floor apartment on October 2, 2016, stating that Bolar was contractually bound
by a 12-month written lease on the third-floor apartment. Bolar claims she has fallen
several times and has experienced pain in her lower back, hips, and knees from
climbing stairs up to the third-floor apartment. Bolar also claims the apartment is
uninhabitable because of snake infestation in the ceiling, walls, and floor, a condition
which Hunter has failed and refused to correct.
In addition to suing Hunter, Silverleaf Investments, and Oak View Apartments,
Bolar sues “various other unknown tenants,” Does 1-30, for no apparent reason, and
also sues the City of Omaha’s Code Enforcement Unit of Planning Department for not
taking “any meaningful or corrective action to cure said deprivation of Plaintiff’s
rights as a disabled person” (Filing No. 1 at CM/ECF p. 10). Bolar does not state what
relief she is requesting as against any Defendant.
II. STANDARDS ON INITIAL REVIEW
The court is required to review in forma pauperis complaints to determine
whether summary dismissal is appropriate. See 28 U.S.C. § 1915(e). The court must
dismiss a complaint or any portion of it 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.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 569-70 (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.”).
“The essential function of a complaint under the Federal Rules of Civil
Procedure is to give the opposing party ‘fair notice of the nature and basis or grounds
for a claim, and a general indication of the type of litigation involved.’” Topchian v.
JPMorgan Chase Bank, N.A., 760 F.3d 843, 848 (8th Cir. 2014) (quoting Hopkins v.
Saunders, 199 F.3d 968, 973 (8th Cir. 1999)). However, “[a] pro se complaint must
be liberally construed, and pro se litigants are held to a lesser pleading standard than
other parties.” Topchian, 760 F.3d at 849 (internal quotation marks and citations
Bolar asserts her action “is brought pursuant to 42 U.S.C. 1983, the Americans
with Disabilities Act, Section 504 of the Rehabilitation Act of 1973 and the Fair
Housing Act of 1988 as amended, as well as the Hate Crimes Clause of the Civil
Rights Act of 1968, and upon the 1st, 4th, 5th, 8th, 13th and 14th Amendments to the U.S.
Constitution” (Filing No. 1 at CM/ECF p. 3).
Bolar claims she was entitled to move from the third to the first floor of the
apartment building as a reasonable accommodation under the Americans with
Disabilities Act. This claim fails as a matter of law because Title III of the ADA,
which prohibits disability discrimination in “any place of public accommodation,”
42 U.S.C. § 12182(a), does not apply to residential facilities. Lancaster v. Phillips
Investments, LLC, 482 F. Supp. 2d 1362, 1366-67 (M.D. Ala. 2007); see Indep.
Housing Servs. of San Francisco v. Fillmore Ctr. Assocs., 840 F.Supp. 1328, 1344 n.
14 (N.D.Cal. 1993) (“[T]he legislative history of the ADA clarifies that ‘other place
of lodging’ [in definition of ‘public accommodation’] does not include residential
facilities.”); H.R.Rep. No. 101-485(II), at 100 (1990) (“Only nonresidential facilities
are covered by [Title III].”). Consequently, “apartments and condominiums do not
constitute public accommodations within the meaning of the [ADA]. Indep. Housing
Servs., 840 F.Supp. at 1344; Moore v. Equity Residential Mgmt., L.L.C., No. 16-CV07204-MEJ, 2017 WL 897391, at *3 (N.D. Cal. Mar. 7, 2017) (“[A]partment
complexes do not constitute ‘public accommodations' within the meaning of the
ADA”) (quoting Arceneaux v. Marin Hous. Auth., 2015 WL 3396673, at *7 (N.D. Cal.
May 26, 2015); Reeves v. Hampton Forest Apartments, No. CV 6:16-715-HMH-KFM,
2017 WL 326020, at *5 (D.S.C. Jan. 5, 2017), report and recommendation adopted,
2017 WL 282397 (D.S.C. Jan. 23, 2017) (“[A] private residential apartment complex
. . . is not a public accommodation under the ADA and, therefore, not subject to ADA
B. Rehabilitation Act
“To state a Rehabilitation Act claim, Plaintiffs must allege they (1) are disabled;
(2) are otherwise unqualified for the benefit or services they sought; (3) were denied
those benefits or services ‘solely’ by reason of their disability; and (4) that the
program providing the benefits or services receives federal assistance. Moore, 2017
WL 897391, at *4 (citing Lovell v. Chandler, 303 F.3d 1039, 1052 (9th Cir. 2002)).
There is no allegation in this case that Hunter, Oak View Apartments, or Silverleaf
Investments receive federal assistance.
C. Fair Housing Act
The Fair Housing Act (FHA) makes it unlawful “[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,” 42 U.S.C.§ 3604(f)(1), but Bolar does not allege that she was
denied housing because of a handicap. Bolar instead claims she was tricked into
signing a lease for a third-floor apartment based on an alleged oral agreement that she
would be able to move into a first-floor apartment when it became available.
D. Civil Rights Act of 1968
The court is uncertain what statute Bolar is referencing when she invokes the
“Hate Crimes Clause of the Civil Rights of 1968.” If she is referencing Title IX of the
Act, codified at 42 U.S.C. § 1361 as part of the FHA, that is a criminal statute which
does not provide the basis for a private right of action. See Wolf v. Jefferson Cty., No.
4:15-CV-1174-CEJ, 2016 WL 233247, at *2 (E.D. Mo. Jan. 20, 2016). The same is
true of Title I of the Act, which is codified at 18 U.S.C. § 254. See id. Title VIII of the
Act includes sections 3601-3619 of the FHA. The remaining titles of the 1968 Civil
Rights Act have no possible application to the facts alleged in the Complaint.
E. Constitutional Amendments
Finally, Bolar claims without elaboration that her constitutional rights have
been violated by Defendants. Having carefully reviewed the complaint, the court is
unable to discern any plausible constitutional claim. Even if the facts alleged could
provide the basis for a § 1983 claim against the City of Omaha, which they do not,
Bolar does not claim that any constitutional violation was the result of a municipal
policy or custom, a finding of which would be a prerequisite to the imposition of
liability against the City. See Jane Doe A By and Through Jane Doe B v. Special
School Dist. of St. Louis Cnty., 901 F.2d 642, 645 (8th Cir. 1990).
Bolar’s Complaint fails to state a claim upon which relief can be granted as
against any Defendant. Bolar has moved for leave to file an amended complaint which
she says will be “more detailed and explanatory” (Filing No. 6), but she has not
provided the court with a copy of the proposed amended complaint as required by
NECivR 15.1(a) or even given an indication of what additional facts she intends to
plead. Because the court concludes that amendment would be futile, considering the
extensive statement of facts Bolar already has alleged, the motion for leave to amend
will be denied and this action will be dismissed without prejudice.
IT IS ORDERED:
Plaintiff’s motion for leave to amend (Filing No. 6) is denied.
This action is dismissed without prejudice.
Judgment will be entered by separate document.
DATED this 4th day of May, 2017.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge
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