Godwin v. Senior Garden Apartments et al

Filing 11

ORDER that Plaintiff's IFP application (ECF No. 1 ) is GRANTED; Plaintiff's motion for expedited consideration of IFP status (ECF No. 4 ) and motion for judicial notice in support of IFP status (ECF No. 10 ) are DENIED as moot< /b>; Clerk directed to file Plaintiff's complaint (ECF No. 1 -1); Plaintiff's 3rd, 4th, and 5th claims are DISMISSED with leave to amend; amended complaint due by 4/8/2018; Clerk directed to send Plaintiff USM-285 form, propo sed summons form, and a copy of this order; Plaintiff must complete both forms and return them to the Clerk within 30 days; and Plaintiff's motion for judicial notice (ECF No. 5 ) is DENIED without prejudice. Signed by Magistrate Judge Carl W. Hoffman on 3/9/2018. (Copies have been distributed pursuant to the NEF - LH)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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VICTORIA JOY GODWIN,

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Plaintiff,
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v.
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SENIOR GARDEN APARTMENTS, et al.,
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Defendants.
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_______________________________________ )

Case No. 2:17-cv-02178-MMD-CWH

ORDER

Presently before the Court is pro se Plaintiff Victoria Joy Godwin’s motion to proceed in

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forma pauperis (ECF No. 1), filed on August 14, 2017. Also before the Court are Plaintiff’s motion

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for judicial notice and request for expedited ruling (ECF No. 4), motion for judicial notice of

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relevant state court documents (ECF No. 5), and motion for judicial notice in support of request for

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status of application for in forma pauperis status (ECF No. 10).

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I.

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In Forma Pauperis Application
Plaintiff has submitted the declaration required by 28 U.S.C. § 1915(a) showing an inability

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to prepay fees and costs or give security for them. The Court will therefore grant Plaintiff’s

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application to proceed in forma pauperis. Plaintiff’s additional motions requesting expedited ruling

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on her in forma pauperis application are denied as moot.

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II.

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Screening the Complaint
Upon granting a request to proceed in forma pauperis, a court must screen the complaint

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under 28 U.S.C. § 1915(e)(2). To screen a complaint, a court must identify cognizable claims and

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dismiss claims that are frivolous, malicious, fail to state a claim on which relief may be granted, or

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seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2).

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Dismissal for failure to state a claim under § 1915(e)(2) incorporates the standard for failure to state

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a claim under Federal Rule of Civil Procedure 12(b)(6). Watison v. Carter, 668 F.3d 1108, 1112

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(9th Cir. 2012). To survive § 1915 review, a complaint must “contain sufficient factual matter,

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accepted as true, to state a claim to relief that is plausible on its face.” See Ashcroft v. Iqbal, 556
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U.S. 662, 678 (2009). The Court liberally construes pro se complaints and may only dismiss them

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“if it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which

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would entitle him to relief.” Nordstrom v. Ryan, 762 F.3d 903, 908 (9th Cir. 2014) (quoting Iqbal,

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556 U.S. at 678).

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To determine whether the complaint is sufficient to state a claim, all allegations of material

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fact are taken as true and construed in the light most favorable to the plaintiff. Wyler Summit P’ship

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v. Turner Broad. Sys. Inc., 135 F.3d 658, 661 (9th Cir. 1998). Although the standard under Rule

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12(b)(6) does not require detailed factual allegations, a plaintiff must provide more than mere labels

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and conclusions. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). A formulaic recitation

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of the elements of a cause of action is insufficient. Id. Finally, unless it is clear that the complaint’s

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deficiencies cannot be cured through amendment, a pro se plaintiff should be given leave to amend

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the complaint with notice regarding its deficiencies. Cato v. United States, 70 F.3d 1103, 1106 (9th

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Cir. 1995).

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Here, Plaintiff’s claims arise out of her residency at the Senior Garden Apartments (“SGA”),

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located at 1809 and 1813 E. Charleston Blvd., Las Vegas, Nevada. Plaintiff alleges that beginning in

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January, 2016, she was a resident at SGA, and was subject to abusive and discriminatory behavior of

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Defendant Steven Rameriz, who was a resident and employee of SGA. Plaintiff also alleges that

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Russell Ricciardelli, owner of SGA, was a party to this abuse. Plaintiff alleges the abuse continued

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throughout her residency at SGA, and culminated with a notice of eviction, served on Plaintiff on

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July 12, 2017. Plaintiff alleges the conduct of Defendant Rameriz included repeated grabbing of

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Plaintiff’s body, demands for “payment of a hug” for services rendered, asking for kisses, sexual

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invitations, refusal of repair services when Rameriz’s advances were rejected, and refusal by

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Defendant Ricciardelli to intervene when confronted with Plaintiff’s complaints.

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Plaintiff’s complaint alleges five causes of action against Defendants: (1) “Sexual

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Harassment - Quid Pro Quo,” (2) “Sexual Harassment - Hostile Environment,” (3) discrimination,

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(4) intentional infliction of emotional distress (“IIED”), and (5) negligent infliction of emotional

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distress (“NIED”). The Court will consider each of Plaintiff’s causes of action.

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A.

Sexual Harassment - Quid Pro Quo and Creation of Hostile Environment
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The Fair Housing Act (“FHA”) prohibits discrimination based on sex in the sale or rental of

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housing. See 42 U.S.C. § 3604. Federal courts have recognized that sexual harassment is a form of

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sex discrimination that is prohibited by, and actionable under, the FHA. Salisbury v. Hickman, 974

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F. Supp. 2d 1282, 1290 (E.D. Cal. 2013). See also Quigley v. Winter, 598 F.3d 938, 946 (8th

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Cir.2010); DiCenso v. Cisneros, 96 F.3d 1004, 1008 (7th Cir.1996); Honce v. Vigil, 1 F.3d 1085,

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1089–90 (10th Cir.1993); Shellhammer v. Lewallen, 770 F.2d 167 (6th Cir.1985). Specifically,

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where the sexual harassment creates a “hostile housing environment” or constitutes “quid pro quo

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sexual harassment,” it is actionable under the FHA. United States v. Hurt, 676 F.3d 649, 654 (8th

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Cir.2012) (quoting Quigley, 598 F.3d at 946–47). Quid pro quo harassment occurs when housing

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benefits are explicitly or implicitly conditioned on sexual favors. Quigley, 598 F.3d at 946-947
To prevail on a hostile housing environment claim, a plaintiff must establish that she was

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subjected to (1) unwelcome (2) sexual harassment that was (3) sufficiently severe or pervasive so as

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to interfere with or deprive the plaintiff of her right to use or enjoy her home. Salisbury, 974 F. Supp

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2d at 1290.

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To prevail on an housing discrimination quid pro quo claim, a plaintiff must establish that:

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(1) she was a member of a protected class; (2) she was subjected to unwelcome harassment in the

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form of sexual advances or requests for sexual favors; (3) the harassment was based on sex; and (4)

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her submission to the unwelcome advances was an express or implied condition for enjoyment of

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housing benefits. See Quigley, 598 F.3d at 947.

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Plaintiff’s complaint establishes a prima facie case for both of the above forms of housing

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discrimination under the FHA. Plaintiff alleges that based on her sex, and over the course of nearly

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two years, Defendant Rameriz subjected her to repeated, unwanted sexual invitations, suggestions,

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and demands, and that her refusal to accede led to her eviction. Liberally construing Plaintiff’s

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allegations, the Court finds a sufficient basis for claims of a hostile housing environment, and

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housing discrimination quid pro quo.

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B.

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Plaintiff’s third cause of action is a standalone discrimination claim. Upon review of the

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Discrimination

complaint, it appears this claim is duplicative of Plaintiff’s first two counts of housing discrimination
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under the FHA. The Court will therefore dismiss this claim with leave to amend.

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C.

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When a district court sits in diversity, or hears state law claims based on supplemental

Negligent Infliction of Emotional Distress

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jurisdiction, the court applies state substantive law to the state law claims. Mason & Dixon

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Intermodal, Inc. v. Lapmaster Int'l LLC, 632 F.3d 1056, 1060 (9th Cir. 2011). Plaintiff’s NIED is a

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state law claim, heard under the Court’s supplementary jurisdiction stemming from her federal

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claims. The Court will therefore consider the NIED claim under Nevada law.

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Nevada recognizes a cause of action for NIED when “a bystander suffers serious emotional
distress which results in physical symptoms caused by apprehending the death or serious injury of a

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loved one due to the negligence of [a] defendant.” Chowdhry v. NLVH, Inc., 851 P.2d 459, 462

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(Nev. 1993). When a physical impact is established, a plaintiff may also recover under an NIED

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claim for a negligent act that has been committed directly against her. Id. However, Nevada courts

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have consistently “required a plaintiff alleging negligent infliction of emotional distress to

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demonstrate some ‘physical impact’ beyond conditions of insomnia or general discomfort.” Sadler

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v. PacifiCare of Nev., 340 P.3d 1264, 1268 (Nev. 2014).

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Here, Plaintiff alleges Defendants’ conduct caused severe and enduring emotional distress,

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which was accompanied by “physical repercussions” as well as “heightened fear” (Pl’s. Compl.,

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¶ 38 (ECF No. 1-1)). However, Plaintiff does not offer any specific allegation of a physical impact

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caused by Plaintiff’s conduct. Nor does she specify what emotional distress she suffered beyond

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“heightened fear.” As noted above, a complaint must provide more than mere labels and conclusions

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in support of a claim. The Court will therefore deny Plaintiff’s claim for NIED, with leave to amend.

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D.

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As with her NIED claim, Plaintiff’s IIED claim will be considered under Nevada law. Mason

Intentional Infliction of Emotional Distress

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& Dixon Intermodal, 632 F.3d 1056. In Nevada, to prevail on a claim for intentional infliction of

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emotional distress, a plaintiff must establish (1) extreme and outrageous conduct with either the

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intention of, or reckless disregard for, causing emotional distress; (2) that plaintiff suffered severe or

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extreme emotional distress; and (3) actual or proximate causation. Dillard Dept. Stores, Inc. v.

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Beckwith, 989 P.2d 882, 886 (Nev. 1999).
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Here, as with her claim for NIED, Plaintiff does not allege any specific severe emotional

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distress resulting from Defendants’ conduct, beyond presenting a rhetorical question “how many

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ways could Plaintiff say NO?” (Pl’s. Compl., ¶ 42). As noted above, a complaint must provide

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more than mere labels and conclusions in support of a claim. The Court will therefore deny

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Plaintiff’s claim for IIED, with leave to amend.

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III.

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Plaintiff’s Motion for Judicial Notice of Relevant State Court Documents
Construing Plaintiff’s motion for judicial notice (ECF No. 5) liberally, it appears that

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Plaintiff asks the Court to consider certain attached documents in support of her complaint, and in

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opposition to any attempt to dismiss her complaint. While a court may review material which is

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properly submitted as part of a complaint when considering a motion to dismiss (See Lee v. City of

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Los Angeles, 250 F.3d 668, 688-689 (9th Cir. 2011)), it is not clear which of Plaintiff’s five causes of

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action the documents are meant to support. Given that Plaintiff has been given leave to amend her

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complaint, Plaintiff is advised that she may incorporate the material from the documents as factual

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allegations in an amended complaint, should she choose to file one. The Court will therefore deny

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the motion for judicial notice without prejudice.

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IV.

Conclusion

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IT IS THEREFORE ORDERED that Plaintiff’s application for leave to proceed in forma

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pauperis (ECF No. 1) is GRANTED. The order granting leave to proceed in forma pauperis does not

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extend to the issuance of subpoenas at government expense. Plaintiff’s motion for expedited

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consideration of in forma pauperis status (ECF No. 4) is DENIED as moot. Plaintiff’s motion for

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judicial notice in support of in forma pauperis status (ECF No. 10) is DENIED as moot.

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IT IS FURTHER ORDERED that the Clerk of Court shall FILE Plaintiff’s complaint (ECF No.
1-1) on the docket.

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IT IS FURTHER ORDERED that Plaintiff’s third claim for discrimination, her fourth claim for

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intentional infliction of emotional distress, and her fifth claim for negligent infliction of emotional

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distress are DISMISSED, with leave to amend, for failure to state a claim upon which relief can be

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granted. Plaintiff shall have thirty (30) days from the date of this order to file an amended complaint if

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she believes she can assert facts or provide materials that address the noted defects of the complaint.
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Failure to file a timely amended complaint will result in a recommendation that these claims be

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dismissed with prejudice.

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IT IS FURTHER ORDERED that if Plaintiff chooses to file an amended complaint, the amended

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complaint shall be complete in and of itself, without reference to the previous complaint, as required by

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Local Rule 15-1. Plaintiff shall also title the amended complaint with the words, “FIRST AMENDED

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COMPLAINT,” on page one in the caption.

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IT IS FURTHER ORDERED that the Clerk of Court must send Plaintiff a USM-285 form and

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a proposed summons form, along with a copy of this order. Upon receipt, Plaintiff must complete both

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forms with all required information and return them to the Clerk within thirty days. Upon receipt of the

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completed USM-285 and proposed summons form, the Court will enter a further order for service upon

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Defendants.

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IT IS FURTHER ORDERED that Plaintiff’s motion for judicial notice (ECF No. 5) is DENIED
without prejudice.
DATED: March 9, 2018

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_________________________________
C.W. Hoffman, Jr.
United States Magistrate Judge

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