Harris et al v. Cooley et al

Filing 7

OPINION AND ORDER signed by Magistrate Judge Stephanie K. Bowman on 09/13/2017. IT IS ORDERED THAT: The Clerk of Court shall transmit the summons forms to the United States Marshal, who shall serve a copy of the complaint, the summons, and this Orde r upon the Defendants as directed by Plaintiff. A copy of this Order shall be served on nonparty Margaret A. Burks, Esq., Chapter 13 Trustee, with additional courtesy copies to be transmitted to the Clerk of the Bankruptcy Court, and to the Scioto Co unty Clerk of Court. (bjc)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification. A copy of this order also sent this date to the Clerk, U.S. Bankruptcy Court and the Scioto County Clerk of Courts. Counsel for the trustee served this date via ECF.) Modified Docket Text on 9/13/2017 (bjc).

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
FRANKLIN DAVID HARRIS JR., et al.,
Case No. 1:17-cv-540
Plaintiffs,
Barrett, J.
Bowman, M.J.

v.
DANIEL COOLEY, et. al,
Defendants.

OPINION AND ORDER
This matter is before the Court for a sua sponte review of the complaint to
determine whether the complaint, or any portion of it, should be dismissed because it is
frivolous, malicious, fails to state a claim upon which relief may be granted or seeks
monetary relief from a defendant who is immune from such relief. 28 U.S.C. §
1915(e)(2)(B).
I. Introduction
On August 28, 2017, this Court permitted Plaintiffs to file their pro se complaint in
forma pauperis, or without payment of a filing fee. Plaintiffs, who live in Portsmouth,
Ohio, are relatively experienced pro se litigants, having pursued a number of cases in
this federal Court, most of which have been filed both pro se and in forma pauperis. 1
Plaintiffs’ 26-page single-spaced typed complaint alleges that they are AfricanAmerican homeowners who reside at 1925 Timmonds Avenue in Portsmouth, who have
1

See, e.g., Case No. 1:89-cv-145 (civil rights); Case No. 1:91-mc-349; Case No. 1:91-mc-350; Lead Case
No. 92-cv-323 (employment discrimination); Related Member Case No.1:92-cv-324 (employment
discrimination), Member Case No. 1:93-cv-401 (employment discrimination); Case No. 1:93-mc-93; Case
No. 1:95-cv-29 (employment discrimination); Case No. 1:97-cv-156 (civil rights); Case No. 1:02-cv-475
(Fair Housing Act); Case No. 1:05-cv-84 (employment discrimination); Case No. 1:11-cv-179
(employment discrimination);

resided in their home since October 20, 1994. (Doc. 1-3 at 1). Plaintiffs allege that the
three identified individual Defendants are Caucasian neighbors who reside at 1921
Timmonds Avenue. Plaintiffs’ complaint generally relates a series of escalating and
ongoing conflicts with the Defendants, primarily over a privacy fence and gate between
the two properties. The complaint details a series of events that are alleged to have
occurred on 13 separate dates between August 7, 2016 and July 17, 2017.
Plaintiffs allege that their neighbors have vandalized Plaintiffs’ personal and real
property and/or caused the neighbors’ children or “unknown white” persons to vandalize
Plaintiffs’ property. Plaintiffs allege that Defendants filed a complaint about the fence
with the “White Director of Portsmouth City Engineer Office” as a threat “to intimidate,
harass, coerce” and “terrify[y]” Plaintiffs, (Doc. 1-2 at 11), and that Defendants similarly
contacted the “White Portsmouth Mayor,” and contacted “White Police Officers” to make
complaints about the fence and/or Plaintiffs and to cause Plaintiffs to suffer “fear, terror,
horror, fright.” (Doc. 1-2 at 12). Plaintiffs allege that the incidents both individually and
in combination constitute violations of the Fair Housing [Act], and of Plaintiffs’ “federal
civil rights.” Plaintiffs seek punitive damages, injunctive relief (including but not limited
to a temporary restraining order and temporary and permanent injunctions), and
attorney’s fees and costs. Plaintiffs claim that this Court has pendant jurisdiction over
their “Ohio Civil Rights claims” under the Ohio Fair Housing Act.” (Doc 1-2 at 2).
Based upon the Plaintiffs’ representation that their Chapter 13 bankruptcy
proceeding was ongoing, the undersigned conditionally granted Plaintiffs’ application to
proceed in forma pauperis, but requested a status report from the Trustee to determine
whether Plaintiffs should be permitted to proceed as the real parties in interest. The

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Court expressly reserved full screening of the complaint under 28 U.S.C. § 1915(e)
“pending a more complete review of the threshold standing issues presented by the
complaint.”
On September 5, 2017, the Trustee filed a status report, indicating that, because
the claims alleged in the complaint filed in this Court arose post-petition, and under
controlling bankruptcy law, Plaintiffs are the real parties in interest for purposes of their
claims against their neighbors. (Doc. 5). The Trustee’s report indicates that the Trustee
has charged the debtors’ bankruptcy counsel with regular reporting on the status of their
claims against the Cooleys, insofar as the Trustee “would have input on” the disposition
of any damages that may be recovered. (Doc. 5 at 5). Having resolved the threshold
issues, the undersigned now undertakes full review of the complaint under 28 U.S.C. §
1915(e).
II. Analysis
In enacting the original in forma pauperis statute, Congress recognized that a
“litigant whose filing fees and court costs are assumed by the public, unlike a paying
litigant, lacks an economic incentive to refrain from filing frivolous, malicious, or
repetitive lawsuits.”

Denton v. Hernandez, 504 U.S. 25, 31, 112 S.Ct. 1728, 118

L.Ed.2d 340 (1992) (quoting Neitzke v. Williams, 490 U.S. 319, 324, 109 S.Ct. 1827,
104 L.Ed.2d 338 (1989)). To prevent such abusive litigation, Congress has authorized
federal courts to dismiss an in forma pauperis complaint if they are satisfied that the
action is frivolous or malicious. Id.; see also 28 U.S.C. §§ 1915(e)(2)(B)(i). A complaint
may be dismissed as frivolous when the plaintiff cannot make any claim with a rational
or arguable basis in fact or law. Neitzke v. Williams, 490 U.S. 319, 328–29, 109 S.Ct.

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1827, 104 L.Ed.2d 338 (1989); see also Lawler v. Marshall, 898 F.2d 1196, 1198 (6th
Cir.1990). An action has no arguable legal basis when the defendant is immune from
suit or when plaintiff claims a violation of a legal interest which clearly does not exist.
Neitzke, 490 U.S. at 327. An action has no arguable factual basis when the allegations
are delusional or rise to the level of the irrational or “wholly incredible.” Denton, 504
U.S. at 32; Lawler, 898 F.2d at 1199.

The Court need not accept as true factual

allegations that are “fantastic or delusional” in reviewing a complaint for frivolousness.
Hill v. Lappin, 630 F.3d 468, 471 (6th Cir.2010) (quoting Neitzke, 490 U.S. at 328).
Congress also has authorized the sua sponte dismissal of complaints that fail to
state a claim upon which relief may be granted. 28 U.S.C. §§ 1915(e)(2)(B)(ii).

A

complaint filed by a pro se plaintiff must be “liberally construed” and “held to less
stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551
U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (per curiam) (quoting Estelle v.
Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976)). By the same token,
however, the complaint “must contain sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its face.’“ Ashcroft v. Iqbal, 556 U.S. 662, 678,
129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)); see also Hill, 630 F.3d at 470–
71 (“dismissal standard articulated in Iqbal and Twombly governs dismissals for failure
to state a claim” under §§ 1915A(b)(1) and 1915(e)(2) (B)(ii)).
“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.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). The

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Court must accept all well-pleaded factual allegations as true, but need not “accept as
true a legal conclusion couched as a factual allegation.” Twombly, 550 U.S. at 555
(quoting Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986)).
Although a complaint need not contain “detailed factual allegations,” it must provide
“more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Iqbal, 556
U.S. at 678 (citing Twombly, 550 U.S. at 555).

A pleading that offers “labels and

conclusions” or “a formulaic recitation of the elements of a cause of action will not do.”
Twombly, 550 U.S. at 555. Nor does a complaint suffice if it tenders “naked assertion[s]”
devoid of “further factual enhancement.” Id. at 557. The complaint must “give the
defendant fair notice of what the ... claim is and the grounds upon which it rests.”
Erickson, 551 U.S. at 93 (citations omitted).
Based upon the above standards, it remains a very close issue as to whether
Plaintiffs have stated any cognizable federal claims.

Plaintiffs’ allegations – while

indicative of abhorrent behavior and incivility between neighbors – may fall short of the
type of discriminatory conduct that Congress intended to regulate under the Fair
Housing Act. Accord Franco-Ward v. Nations Credit Corp., 2000 WL 875894 (6th Cir.,
June 20, 2000) (affirming dismissal of retaliation and intimidation claims under 42
U.S.C. §3617, because plaintiffs’ allegations of racial discrimination were conclusory
and unsupported by factual allegations to support claims). However, under the liberal
pleading standards applied to pro se pleadings, as well as the extremely low threshold
used in screening cases under 28 U.S.C. § 1915(e), the undersigned will allow Plaintiff’s
complaint to proceed at this preliminary stage, and will direct service upon the
Defendants.

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As grounds for the assertion of this Court’s jurisdiction over their complaint,
Plaintiffs assert that the Defendants have violated the Fair Housing Act.

Plaintiffs’

complaint alleges that their neighbors’ conduct towards Plaintiffs constituted race-based
discrimination not because of any overt or direct evidence of such discriminatory
animus, but based upon indirect evidence. Specifically, Plaintiffs allege that they are
African-American, while Defendants are Caucasian, and that Defendants made no
similar complaints to authorities and made no similar threats against other white
neighbors who had a similar privacy fence/gate that appears to be the source of
contention between Plaintiffs and Defendants.
The primary provisions of the Fair Housing Act, as amended, generally prohibit
discrimination in the sale or lease of real property. Since Plaintiffs allege that they
purchased their home nearly 23 years ago and have continually resided in that home
since their purchase, they do not seek recourse under the primary substantive
provisions of the FHA.

Instead, Plaintiffs rely upon 42 U.S.C. § 3617, which makes it

unlawful “to coerce, intimidate, threaten, or interfere” with the exercise or enjoyment of
any rights protected by the FHA's substantive provisions. 42 U.S.C. § 3617.
To make out a prima facie case under Section 3617, a plaintiff must show
“more than a ‘quarrel among neighbors' or an ‘isolated act of
discrimination,’ but rather ... a ‘pattern of harassment, invidiously
motivated.’ ” Bloch v. Frischholz, 587 F.3d 771, 783 (7th Cir.2009)
(quoting Halprin v. Prairie Single Family Homes of Dearborn Park
Ass'n, 388 F.3d 327, 330 (7th Cir.2004)). Prohibited interference is not
limited to discrimination during the acquisition of a home, but “can take
place at any time,” including “post-purchase,” as is potentially implicated
here. E.–Miller v. Lake Cnty. Highway Dep't, 421 F.3d 558, 562 (7th
Cir.2005).
Novak v. Levenfeld Pearlstein, 2014 WL 4555581, at *6 (N.D.Ill., Sept. 15, 2014).
Courts use the burden shifting analysis of McDonnell Douglas v. Green, 411 U.S. 792
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(1973), to evaluate claims of intentional discrimination under the FHA.

Michigan

Protection and Advocacy Service, Inc. v. Babin, 799 F. Supp. 695, 706 (E.D. Mich.
1992), affirmed 18 F.3d 337 (6th Cir.1994) (“a successful claim under § 3604 is not a
prerequisite to the bringing of a claim under § 3617”).
The Trustee reports, and the undersigned’s review of other court records
confirms, that the named Defendants herein, through counsel, filed suit against Plaintiffs
in Scioto County State Court on May 24, 2017, a date that precedes the date that
Plaintiffs initiated this federal lawsuit. See Cooley v. Harris, Case No. 17CIH00071
(Scioto County Court of Common Pleas). The undersigned has reviewed the publicly
available docket sheet of the state court action, but not the actual complaint. The
Trustee describes the Cooleys’ Complaint as seeking “removal of a fence that straddles
a property line, perpendicularly, and a determination of property line boundaries…”
(Doc. 5 at 1). The Trustee additionally reports the existence of a third related adversary
proceeding recently filed by Plaintiffs in Bankruptcy Court, Case No. 1:17-ap-01041.
Mr. and Mrs. Harris are represented by counsel in the lead bankruptcy case, but
not in their recently filed adversary proceeding concerning their dispute with the
Cooleys. 2 Plaintiffs also proceed pro se as defendants in the Scioto County state court
case.
The Trustee concludes that “[t]he question now before the Bankruptcy Court, the
U.S. District Court, and Scioto Common Pleas is which court is the proper venue for

2

The Bankruptcy Trustee has encouraged the Mr. and Mrs. Harris to “consider engaging competent
counsel” and has explained how Local Bankruptcy Rules of the Southern District of Ohio describe how
counsel should be engaged and officially appointed.” (Doc. 5 at 6). Unlike the Bankruptcy Rules, no
similar rules of this Court provide for the appointment of counsel for civil litigants. There is no
constitutional right to the appointment of counsel in civil cases, and such appointments by this Court are
exceedingly rare.

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consideration of the Harris claims against the Cooleys, and where the Cooleys’ property
questions should be decided.” (Doc. 5 at 6). However, because review is limited at this
point to the screening the complaint under § 1915(e), the undersigned finds it
inappropriate to resolve that question at this stage.
The undersigned’s decision to give the Plaintiffs the benefit of the doubt at this
preliminary screening stage should not be viewed as foreclosing any affirmative
defenses the Defendants may be able to raise in a motion to dismiss. Rather, it is
merely an acknowledgement that under 28 U.S.C. § 1915(e), review is limited to the
complaint filed in this Court, without the benefit of a response by an opposing party or
any briefing at all. Under liberal pleading standards, the undersigned cannot conclude
at this stage that the complaint is so lacking in plausibility that it should be dismissed
without requiring the Defendants to answer.
The undersigned’s preliminary review of post-acquisition claims of discriminatory
interference or harassment under 42 U.S.C. § 3617 reveals relatively limited case law
on the issues presented, but confirms that a neighbor-against-neighbor claim may exist
under some circumstances. See generally Wells v. Rhodes, 928 F. Supp.2d 920, 932933 (S.D. Ohio 2013) (holding, despite recognition that “the FHA was not designed ‘to
convert every quarrel among neighbors in which a racial or religious slur is hurled into a
federal case,’” that evidence of “burning a cross on front lawn with ‘KKK will make you
pay’ and the N-word written on it, is certainly interference (or perhaps more accurately a
threat or intimidation) within the broad meaning of § 3617.”) (internal citations omitted);
contrast Sheikh v. Rabin, 565 Fed. Appx. 512 (7th Cir. 2014)(dismissing FHA claims for
failure to state any claim of interference under FHA); French v. Hornsby, 2006 WL

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686375 (M.D. Tenn, March 13, 2006) (holding there was “absolutely no application of
the Fair Housing Act” to property line dispute between neighbors who had previously
litigated their dispute in state court); Diggs v. Paragon Management Group, Inc., 2014
WL 1302504 (E.D. Tenn. March 28, 2014) (granting motion to dismiss FHA claims for
failure to state a claim of race discrimination).
III. Conclusion and Order
For the reasons explained above, IT IS ORDERED THAT:
1. The Clerk of Court shall transmit the summons forms to the United States
Marshal, who shall serve a copy of the complaint, the summons, and this
Order upon the Defendants as directed by Plaintiff. All costs of service shall
be advanced by the United States;
2. Plaintiff shall serve upon each Defendant or, if appearance has been entered
by counsel, upon Defendant’s attorney(s), a copy of every further pleading or
other document submitted for consideration by the Court.

Plaintiff shall

include with the original paper to be filed with the clerk of court a certificate
stating the date a true and correct copy of any document was mailed to
Defendants or their counsel. Any paper received by a district judge or
magistrate judge which has not been filed with the clerk or which fails to
include a certificate of service will be disregarded by the Court;
3. A copy of this Order shall be served on nonparty Margaret A. Burks, Esq.,
Chapter 13 Trustee, with additional courtesy copies to be transmitted to the
Clerk of the Bankruptcy Court, for consideration in connection with U.S.
Bankruptcy Case No. 15-12647 and/or Case No. 1:17-ap-01041, and to the

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Scioto County Clerk of Court for consideration in connection with Cooley v.
Harris, Case No. 17CIH00071. 3

s/ Stephanie K. Bowman
Stephanie K. Bowman
United States Magistrate Judge

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The undersigned greatly appreciates the efforts of the Trustee to respond to this Court’s request for a
status report, and recognizes that the Trustee will not be made party to this proceeding, but will rely upon
Plaintiffs’ bankruptcy counsel to keep the Trustee updated on the course of this case. No further copies
of proceedings in this case will be transmitted to the Trustee, to the Bankruptcy Court, or to the Scioto
County Clerk of Court beyond this Order. If desired, any non-party (including bankruptcy counsel) may
use the cm/ecf system or PACER to obtain copies of all publicly available documents filed in this case.

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