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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1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 4 5 6 7 8 9 VICTORIA JOY GODWIN, ) ) Plaintiff, ) ) v. ) ) SENIOR GARDEN APARTMENTS, et al., ) ) Defendants. ) ) _______________________________________ ) 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 10 11 forma pauperis (ECF No. 1), filed on August 14, 2017. Also before the Court are Plaintiff’s motion 12 for judicial notice and request for expedited ruling (ECF No. 4), motion for judicial notice of 13 relevant state court documents (ECF No. 5), and motion for judicial notice in support of request for 14 status of application for in forma pauperis status (ECF No. 10). 15 I. 16 In Forma Pauperis Application Plaintiff has submitted the declaration required by 28 U.S.C. § 1915(a) showing an inability 17 to prepay fees and costs or give security for them. The Court will therefore grant Plaintiff’s 18 application to proceed in forma pauperis. Plaintiff’s additional motions requesting expedited ruling 19 on her in forma pauperis application are denied as moot. 20 II. 21 Screening the Complaint Upon granting a request to proceed in forma pauperis, a court must screen the complaint 22 under 28 U.S.C. § 1915(e)(2). To screen a complaint, a court must identify cognizable claims and 23 dismiss claims that are frivolous, malicious, fail to state a claim on which relief may be granted, or 24 seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2). 25 Dismissal for failure to state a claim under § 1915(e)(2) incorporates the standard for failure to state 26 a claim under Federal Rule of Civil Procedure 12(b)(6). Watison v. Carter, 668 F.3d 1108, 1112 27 (9th Cir. 2012). To survive § 1915 review, a complaint must “contain sufficient factual matter, 28 accepted as true, to state a claim to relief that is plausible on its face.” See Ashcroft v. Iqbal, 556 1 1 U.S. 662, 678 (2009). The Court liberally construes pro se complaints and may only dismiss them 2 “if it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which 3 would entitle him to relief.” Nordstrom v. Ryan, 762 F.3d 903, 908 (9th Cir. 2014) (quoting Iqbal, 4 556 U.S. at 678). 5 To determine whether the complaint is sufficient to state a claim, all allegations of material 6 fact are taken as true and construed in the light most favorable to the plaintiff. Wyler Summit P’ship 7 v. Turner Broad. Sys. Inc., 135 F.3d 658, 661 (9th Cir. 1998). Although the standard under Rule 8 12(b)(6) does not require detailed factual allegations, a plaintiff must provide more than mere labels 9 and conclusions. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). A formulaic recitation 10 of the elements of a cause of action is insufficient. Id. Finally, unless it is clear that the complaint’s 11 deficiencies cannot be cured through amendment, a pro se plaintiff should be given leave to amend 12 the complaint with notice regarding its deficiencies. Cato v. United States, 70 F.3d 1103, 1106 (9th 13 Cir. 1995). 14 Here, Plaintiff’s claims arise out of her residency at the Senior Garden Apartments (“SGA”), 15 located at 1809 and 1813 E. Charleston Blvd., Las Vegas, Nevada. Plaintiff alleges that beginning in 16 January, 2016, she was a resident at SGA, and was subject to abusive and discriminatory behavior of 17 Defendant Steven Rameriz, who was a resident and employee of SGA. Plaintiff also alleges that 18 Russell Ricciardelli, owner of SGA, was a party to this abuse. Plaintiff alleges the abuse continued 19 throughout her residency at SGA, and culminated with a notice of eviction, served on Plaintiff on 20 July 12, 2017. Plaintiff alleges the conduct of Defendant Rameriz included repeated grabbing of 21 Plaintiff’s body, demands for “payment of a hug” for services rendered, asking for kisses, sexual 22 invitations, refusal of repair services when Rameriz’s advances were rejected, and refusal by 23 Defendant Ricciardelli to intervene when confronted with Plaintiff’s complaints. 24 Plaintiff’s complaint alleges five causes of action against Defendants: (1) “Sexual 25 Harassment - Quid Pro Quo,” (2) “Sexual Harassment - Hostile Environment,” (3) discrimination, 26 (4) intentional infliction of emotional distress (“IIED”), and (5) negligent infliction of emotional 27 distress (“NIED”). The Court will consider each of Plaintiff’s causes of action. 28 A. Sexual Harassment - Quid Pro Quo and Creation of Hostile Environment 2 1 The Fair Housing Act (“FHA”) prohibits discrimination based on sex in the sale or rental of 2 housing. See 42 U.S.C. § 3604. Federal courts have recognized that sexual harassment is a form of 3 sex discrimination that is prohibited by, and actionable under, the FHA. Salisbury v. Hickman, 974 4 F. Supp. 2d 1282, 1290 (E.D. Cal. 2013). See also Quigley v. Winter, 598 F.3d 938, 946 (8th 5 Cir.2010); DiCenso v. Cisneros, 96 F.3d 1004, 1008 (7th Cir.1996); Honce v. Vigil, 1 F.3d 1085, 6 1089–90 (10th Cir.1993); Shellhammer v. Lewallen, 770 F.2d 167 (6th Cir.1985). Specifically, 7 where the sexual harassment creates a “hostile housing environment” or constitutes “quid pro quo 8 sexual harassment,” it is actionable under the FHA. United States v. Hurt, 676 F.3d 649, 654 (8th 9 Cir.2012) (quoting Quigley, 598 F.3d at 946–47). Quid pro quo harassment occurs when housing 10 11 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 12 subjected to (1) unwelcome (2) sexual harassment that was (3) sufficiently severe or pervasive so as 13 to interfere with or deprive the plaintiff of her right to use or enjoy her home. Salisbury, 974 F. Supp 14 2d at 1290. 15 To prevail on an housing discrimination quid pro quo claim, a plaintiff must establish that: 16 (1) she was a member of a protected class; (2) she was subjected to unwelcome harassment in the 17 form of sexual advances or requests for sexual favors; (3) the harassment was based on sex; and (4) 18 her submission to the unwelcome advances was an express or implied condition for enjoyment of 19 housing benefits. See Quigley, 598 F.3d at 947. 20 Plaintiff’s complaint establishes a prima facie case for both of the above forms of housing 21 discrimination under the FHA. Plaintiff alleges that based on her sex, and over the course of nearly 22 two years, Defendant Rameriz subjected her to repeated, unwanted sexual invitations, suggestions, 23 and demands, and that her refusal to accede led to her eviction. Liberally construing Plaintiff’s 24 allegations, the Court finds a sufficient basis for claims of a hostile housing environment, and 25 housing discrimination quid pro quo. 26 B. 27 Plaintiff’s third cause of action is a standalone discrimination claim. Upon review of the 28 Discrimination complaint, it appears this claim is duplicative of Plaintiff’s first two counts of housing discrimination 3 1 under the FHA. The Court will therefore dismiss this claim with leave to amend. 2 C. 3 When a district court sits in diversity, or hears state law claims based on supplemental Negligent Infliction of Emotional Distress 4 jurisdiction, the court applies state substantive law to the state law claims. Mason & Dixon 5 Intermodal, Inc. v. Lapmaster Int'l LLC, 632 F.3d 1056, 1060 (9th Cir. 2011). Plaintiff’s NIED is a 6 state law claim, heard under the Court’s supplementary jurisdiction stemming from her federal 7 claims. The Court will therefore consider the NIED claim under Nevada law. 8 9 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 10 loved one due to the negligence of [a] defendant.” Chowdhry v. NLVH, Inc., 851 P.2d 459, 462 11 (Nev. 1993). When a physical impact is established, a plaintiff may also recover under an NIED 12 claim for a negligent act that has been committed directly against her. Id. However, Nevada courts 13 have consistently “required a plaintiff alleging negligent infliction of emotional distress to 14 demonstrate some ‘physical impact’ beyond conditions of insomnia or general discomfort.” Sadler 15 v. PacifiCare of Nev., 340 P.3d 1264, 1268 (Nev. 2014). 16 Here, Plaintiff alleges Defendants’ conduct caused severe and enduring emotional distress, 17 which was accompanied by “physical repercussions” as well as “heightened fear” (Pl’s. Compl., 18 ¶ 38 (ECF No. 1-1)). However, Plaintiff does not offer any specific allegation of a physical impact 19 caused by Plaintiff’s conduct. Nor does she specify what emotional distress she suffered beyond 20 “heightened fear.” As noted above, a complaint must provide more than mere labels and conclusions 21 in support of a claim. The Court will therefore deny Plaintiff’s claim for NIED, with leave to amend. 22 D. 23 As with her NIED claim, Plaintiff’s IIED claim will be considered under Nevada law. Mason Intentional Infliction of Emotional Distress 24 & Dixon Intermodal, 632 F.3d 1056. In Nevada, to prevail on a claim for intentional infliction of 25 emotional distress, a plaintiff must establish (1) extreme and outrageous conduct with either the 26 intention of, or reckless disregard for, causing emotional distress; (2) that plaintiff suffered severe or 27 extreme emotional distress; and (3) actual or proximate causation. Dillard Dept. Stores, Inc. v. 28 Beckwith, 989 P.2d 882, 886 (Nev. 1999). 4 1 Here, as with her claim for NIED, Plaintiff does not allege any specific severe emotional 2 distress resulting from Defendants’ conduct, beyond presenting a rhetorical question “how many 3 ways could Plaintiff say NO?” (Pl’s. Compl., ¶ 42). As noted above, a complaint must provide 4 more than mere labels and conclusions in support of a claim. The Court will therefore deny 5 Plaintiff’s claim for IIED, with leave to amend. 6 III. 7 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 8 Plaintiff asks the Court to consider certain attached documents in support of her complaint, and in 9 opposition to any attempt to dismiss her complaint. While a court may review material which is 10 properly submitted as part of a complaint when considering a motion to dismiss (See Lee v. City of 11 Los Angeles, 250 F.3d 668, 688-689 (9th Cir. 2011)), it is not clear which of Plaintiff’s five causes of 12 action the documents are meant to support. Given that Plaintiff has been given leave to amend her 13 complaint, Plaintiff is advised that she may incorporate the material from the documents as factual 14 allegations in an amended complaint, should she choose to file one. The Court will therefore deny 15 the motion for judicial notice without prejudice. 16 IV. Conclusion 17 IT IS THEREFORE ORDERED that Plaintiff’s application for leave to proceed in forma 18 pauperis (ECF No. 1) is GRANTED. The order granting leave to proceed in forma pauperis does not 19 extend to the issuance of subpoenas at government expense. Plaintiff’s motion for expedited 20 consideration of in forma pauperis status (ECF No. 4) is DENIED as moot. Plaintiff’s motion for 21 judicial notice in support of in forma pauperis status (ECF No. 10) is DENIED as moot. 22 23 IT IS FURTHER ORDERED that the Clerk of Court shall FILE Plaintiff’s complaint (ECF No. 1-1) on the docket. 24 IT IS FURTHER ORDERED that Plaintiff’s third claim for discrimination, her fourth claim for 25 intentional infliction of emotional distress, and her fifth claim for negligent infliction of emotional 26 distress are DISMISSED, with leave to amend, for failure to state a claim upon which relief can be 27 granted. Plaintiff shall have thirty (30) days from the date of this order to file an amended complaint if 28 she believes she can assert facts or provide materials that address the noted defects of the complaint. 5 1 Failure to file a timely amended complaint will result in a recommendation that these claims be 2 dismissed with prejudice. 3 IT IS FURTHER ORDERED that if Plaintiff chooses to file an amended complaint, the amended 4 complaint shall be complete in and of itself, without reference to the previous complaint, as required by 5 Local Rule 15-1. Plaintiff shall also title the amended complaint with the words, “FIRST AMENDED 6 COMPLAINT,” on page one in the caption. 7 IT IS FURTHER ORDERED that the Clerk of Court must send Plaintiff a USM-285 form and 8 a proposed summons form, along with a copy of this order. Upon receipt, Plaintiff must complete both 9 forms with all required information and return them to the Clerk within thirty days. Upon receipt of the 10 completed USM-285 and proposed summons form, the Court will enter a further order for service upon 11 Defendants. 12 13 14 IT IS FURTHER ORDERED that Plaintiff’s motion for judicial notice (ECF No. 5) is DENIED without prejudice. DATED: March 9, 2018 15 16 _________________________________ C.W. Hoffman, Jr. United States Magistrate Judge 17 18 19 20 21 22 23 24 25 26 27 28 6

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