Patrick v. Interwest Properties

Filing 27

Amended Opinion and Order. Because I conclude that Mr. Patrick has failed to state a claim under section 1983 and the statute of limitations has run on his FHA claim, Defendants Motion to Dismiss 15 is GRANTED. Mr. Patrick shall have leave to amen d his complaint in order to include facts supporting an inference that InterWest Properties and/or Ms. Garcia wrongfully prevented himfrom filing his FHA claim within the limitations period, and to state any other claims he may have that remain timely. Signed on 11/7/13 by Judge Michael W. Mosman. (dls)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION

LEONARD L. PATRICK, SR.,
No. 3:13-cv-00646-MO
Plaintiffs,
AMENDED
OPINION AND ORDER
v.
INTERWEST PROPERTIES
and ROCIO GARCIA, Manager
for Regency TownHomes,
Defendants.
MOSMAN, J.,
Pro se Plaintiff Leonard L. Patrick, Sr., filed a complaint [2] on April 15, 2013, and an
amended complaint [12] on May 31, 2013, alleging claims of housing discrimination and civil
rights violations against Defendants InterWest Properties and Rocio Garcia. Defendants moved
to dismiss [15] on June 28, 2013, on grounds of lack of subject matter jurisdiction, failure to state
a claim, and running of the statutes of limitations. Mr. Patrick filed a response [20], and
Defendants replied [23]. I conclude that this Court has jurisdiction over Mr. Patrick’s claims,
and that Mr. Patrick has stated a claim for relief under the Fair Housing Act (“FHA”). However,
because I find that the statute of limitations under the FHA has run, I GRANT Defendants’
Motion [15] without prejudice.

1 – OPINION AND ORDER

FACTUAL ALLEGATIONS
Mr. Patrick’s amended complaint 1 alleges that InterWest Properties and Rocio Garcia,
manager of Regency TownHomes, conspired to evict him and other African Americans from the
property. (Am. Compl. [12] at 3, 4.) Mr. Patrick notes that, before InterWest Properties and Ms.
Garcia took control of Regency TownHomes, the property housed between ten and fifteen
African American families. Id. at 4. By some later time, that number had fallen to three or four.
Id. at 3–4. Mr. Patrick alleges that the Defendants replaced these tenants, including him, with
“people of their likeing [sic] and of their race.” Id. at 4. He argues that this development shows
a “practice and pattern of racial discrimination towards African Americans.” Id.at 4.
On noticing the disproportionate eviction of African American tenants, Mr. Patrick
approached the Fair Housing Council of Oregon and asked for help. Id. at 4. Afterward, “on or
about” February 15, 2011, Defendants evicted him on the pretext that he had tampered with
smoke detectors. Id. at 3, 4. He alleges that Defendants gave him no opportunity “to cure the
matter or pay the outrageous non-compliance fee of $250.” Id. at 4. In all of this conduct,
Defendants were motivated by their desire to lease to as few African Americans as possible. Id.
DISCUSSION
Courts in the Ninth Circuit are to construe pro se litigants’ filings liberally, and refrain
from holding “missing or inaccurate legal terminology or muddled draftsmanship against them.”
Blaisdell v. Frappiea, --- F.3d ----, No. 10-16845, 2013 WL 4793184 at *2 (9th Cir. Sep. 10,
2013). Before a district court “may dismiss a pro se complaint for failure to state a claim, the
court must provide the pro se litigant with notice of the deficiencies of his or her complaint and

1

Mr. Patrick filed his amended complaint before either Defendant was served. His amendment therefore did not
require leave of court. Fed. R. Civ. P. 15(a)(1)(A).

2 – OPINION AND ORDER

an opportunity to amend prior to dismissal.” McGuckin v. Smith, 974 F.2d 1050, 1055 (9th Cir.
1992), overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997).
I.

Subject Matter Jurisdiction
Defendants argue that this Court lacks subject matter jurisdiction under both 28 U.S.C.

§§ 1331 and 1332. (Mem. in Supp. [16] at 3–4.) The parties do not dispute that they are not
diverse for jurisdictional purposes. (Am. Compl. [12] at 3; Reply [23] at 3.) Mr. Patrick’s
amended complaint must therefore set out a federal question to invoke this Court’s jurisdiction.
Mr. Patrick does not specify the law giving rise to his claims against InterWest Properties
and Ms. Garcia. In their motion to dismiss, Defendants guessed that his claims rest on 42 U.S.C.
§ 1983 (“section 1983”) and the Fair Housing Act (“FHA”), 42 U.S.C. §§ 3601–3631. (Mem. in
Supp. [16] at 3.) This probably follows from Mr. Patrick’s broad allegations of housing
discrimination and violations of his civil rights. (Am. Compl. [12] at 3.) Defendants argue
somewhat conclusorily that Mr. Patrick has failed to plead any facts giving rise to a cause of
action under FHA, section 1983, or any other federal statute. (Mem. in Supp. [16] at 3.)
A claim arising under federal law may be dismissed for lack of subject matter jurisdiction
only where “the [federal] question presented is too insubstantial to consider.” Cook v. Peter
Kiewit Sons Co., 775 F.2d 1030, 1035 (9th Cir. 1985). “The claim must be ‘so insubstantial,
implausible, foreclosed by prior decisions of this Court or otherwise completely devoid of merit
as not to involve a federal controversy within the jurisdiction of the District Court.’” Id. (quoting
Oneida Indian Nation v. County of Oneida, 414 U.S. 661, 666 (1974)). Otherwise, the proper
Rule 12 motion is a motion to dismiss for failure to state a claim.
A.

Fair Housing Act Claim

3 – OPINION AND ORDER

The Title VII framework for proving discrimination applies to FHA claims. Gamble v.
City of Escondido, 104 F.3d 300, 304 (9th Cir. 1997). A claim of housing discrimination under
FHA may rest on a theory of disparate treatment or disparate impact. Id. at 304–05. To state a
prima facie case of disparate impact, the plaintiff must show “‘(1) the occurrence of certain
outwardly neutral practices, and (2) a significantly adverse or disproportionate impact on persons
of a particular type” as a result. Id. (quoting Pfaff v. U.S. Dep’t of Housing and Urban Dev., 88
F.3d 739, 745 (9th Cir. 1996)). No showing of discriminatory intent is necessary. Pfaff, 88 F.3d
at 745–46 & n.2.
Leaving aside whether Mr. Patrick’s factual allegations are sufficient to state an FHA
claim under Rule 12(b)(6), they are not so insubstantial as to preclude this Court from assuming
jurisdiction. He alleges a practice that appears neutral on its face: the eviction of certain
Regency TownHomes tenants. (Am. Compl. [12] 3–4.) He also alleges a disproportionate
impact on people of a particular race: Defendants’ evictions severely reduced the number of
African American tenants in the property and replaced them with tenants of a different race. Id.
Whatever the merits of Mr. Patrick’s FHA claim, he has stated sufficient facts to give rise to a
controversy over which this Court has jurisdiction.
B.

Section 1983

A claim under 42 U.S.C. § 1983 has two elements: (1) a violation of a federal
constitutional or statutory right that was (2) committed under color of state law. West v. Atkins,
487 U.S. 42, 48 (1988). A person acts under color of state law if she “exercised power possessed
by virtue of state law and made possible only because the wrongdoer is clothed with the
authority of state law.” Florer v. Congregation Pidyon Shevuyim, N.A., 639 F.3d 916, 922 (9th
Cir. 2011) (quoting West, 487 U.S. at 49.) Actions by private individuals are not undertaken

4 – OPINION AND ORDER

“under color of state law” unless “there is significant state involvement.” Howerton v. Gabica,
708 F.2d 380, 382 (9th Cir. 1983) (internal quotation omitted).
Mr. Patrick’s amended complaint does not allege facts from which to infer state
involvement. No basis exists to conclude that Defendants acted under color of state law. Section
1983 therefore does not furnish a basis for subject matter jurisdiction over Mr. Patrick’s claim.
Because Mr. Patrick’s amended complaint may be construed to allege an FHA claim that
is substantial enough to give rise to a controversy, this Court has subject matter jurisdiction.
II.

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). To survive a motion to dismiss under Rule
12(b)(6), its factual allegations must “‘state a claim to relief that is plausible on its face.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 570 (2007)). “Threadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Id. (citing Twombly, 550 U.S. at 555.)
Defendants argue that the allegations in Mr. Patrick’s amended complaint fail to state a
claim under either FHA or section 1983. (Mem. in Supp. [16] at 6, 7.) I agree as to section
1983, but conclude that Mr. Patrick has adequately alleged an FHA claim.
A.

Fair Housing Act

A provider of housing may not “make unavailable or deny[] a dwelling to any person
because of race [or] color,” 42 U.S.C. § 3604(a), nor “discriminate against any person in the
terms, conditions, or privileges of sale or rental of a dwelling . . . because of race [or] color,”
§ 3604(b). The interpreting regulations for both of these subsections state that a housing

5 – OPINION AND ORDER

provider may not engage in any conduct that “makes unavailable or denies dwellings” to a
person on the basis of race. 24 C.F.R. §§ 100.50(b)(3), 100.70(b).
42 U.S.C. § 3604(a) and (b) prohibit discriminatory evictions. Bloch v. Frischholz, 587
F.3d 771, 782 (7th Cir. 2009); see also Housing Rights Center v. Snow, No. 05-4644, 2007 WL
91148 at *2 (E.D. Cal. Jan. 3, 2007) (holding that the defendant’s discriminatory eviction based
on familial status violated section 3604(a) and (b)); United States v. Keck, No. 89-1664, 1990
WL 357064 at *4 (W.D. Wash. Nov. 15, 1990) (holding that efforts to evict a family based on
familial status violate section 3604(b)).
The Title VII discrimination analysis applies to FHA claims. Harris v. Itzhaki, 183 F.3d
1043, 1051 (9th Cir. 1999). The plaintiff can establish a prima facie case by showing either
disparate treatment or disparate impact. Id. (citing Gamble, 104 F.3d at 304–05.) Such a case
requires facts giving rise to a reasonable inference that the defendant engaged in facially neutral
practices that had a disproportionately adverse impact on a protected class. Budnick v. Town of
Carefree, 518 F.3d 1109, 1118 (9th Cir. 2008) (citing Pfaff, 88 F.3d at 746).
Here, Defendants argue that Mr. Patrick alleged only four specific facts, and that the rest
of his amended complaint merely states legal conclusions. (Reply [23] at 3.) The specific facts
that Mr. Patrick alleged are
•
•
•
•

That he was evicted by defendants on February 15, 2011;
That his eviction was “for cause” for tampering with smoke detectors;
That “maybe 10 to 15 [African American] families lived in the Regency
Townhomes before Interwest Properties and . . . Rocio Garcia became the new
owners”; and
That, at some point, there were “3 to 4 African American families left” at the
Regency Townhomes.

Id. (alterations in original.) Defendants assert without elaboration that these facts are “just not
sufficient” to state a plausible claim for relief. Id. at 3–4.

6 – OPINION AND ORDER

Even as Defendants have summarized them, Mr. Patrick’s allegations state a claim of
discriminatory eviction under 42 U.S.C. § 3604(a) and (b) on a disparate impact theory. He
alleged that Defendants undertook a large number of evictions after taking over Regency
TownHomes, and that, as a result, the proportion of African American tenants plummeted in
favor of members of another race. (Am. Compl. [12] at 3–4.) Particularly given the special
solicitude afforded pro se plaintiffs, this systematic exclusion of African American tenants is a
sufficient allegation of disparate impact to support an FHA claim.
B.

Section 1983

Section 1983 provides the plaintiff no remedy unless the defendant acted under color of
state law. Ibrahim v. Dep’t of Homeland Sec., 538 F.3d 1250, 1257 (9th Cir. 2008). Defendants
here argue that Mr. Patrick did not allege that either InterWest Properties or Ms. Garcia acted
under color of state law. (Mem. in Supp. [16] at 7; Reply [23] at 5.) Mr. Patrick does not
respond to this contention. Because Mr. Patrick did not allege that Defendants acted under color
of state law, his amended complaint fails to state a claim under section 1983.
III.

Statute of Limitations
The statutory limitations period for an FHA claim is two years from “the occurrence or

the termination of an alleged discriminatory housing practice.” 42 U.S.C. § 3613(a)(1)(A).
Under the “continuing violation” doctrine, the statute of limitations does not bar an FHA claim
as long as at least one of the acts in an alleged pattern or practice of discrimination occurred
within two years of filing suit. Comm. Concerning Cmty. Improvement v. City of Modesto, 583
F.3d 690, 701 (9th Cir. 2009). The timely and untimely acts must invade the same right in order
for the doctrine to apply. See Havens Realty Corp. v. Coleman, 455 U.S. 363, 381 (1982)

7 – OPINION AND ORDER

(holding that a plaintiff bringing a “tester” claim could not rely on timely claims of racial
steering because steering did not invade her right to truthful housing information).
A defendant may be estopped to assert the statute of limitations as a defense if it acted
wrongfully to prevent the plaintiff from filing suit in a timely fashion. Estate of Amaro v. City of
Oakland, 653 F.3d 808, 813 (9th Cir. 2011); Santa Maria v. Pacific Bell, 202 F.3d 1170, 1176
(9th Cir. 2000). In determining whether equitable estoppel applies, the court considers a number
of factors, including but not limited to
(1) the plaintiff’s actual and reasonable reliance on the defendant’s conduct or
representations, (2) evidence of improper purpose on the part of the defendant, or
of the defendant’s actual or constructive knowledge of the deceptive nature of its
conduct, and (3) the extent to which the purposes of the limitations period have
been satisfied.
Santa Maria, 202 F.3d at 1176 (citing Naton v. Bank of Cal., 649 F.2d 691, 696 (9th Cir. 1981)).
Even where the plaintiff knows or suspects that he has a cause of action, equitable estoppel
applies if the defendant “deprived the plaintiff of a full understanding of the true facts.” Amaro,
652 F.3d at 813.
Defendants argue that the limitations period has run for Mr. Patrick’s FHA claim. They
observe that he alleges that his eviction took place on February 15, 2011. (Mem. in Supp. [16] at
8.) Mr. Patrick filed the original complaint on April 15, 2013, and the amended complaint on
May 31, 2013, each more than two years afterward. Defendants argue that his claims are
therefore barred. Id.
Mr. Patrick responds by arguing that the continuing violations doctrine applies. (Resp.
[21] at 15.) However, as Defendants observe in their reply, Mr. Patrick acknowledges that all of
the conduct he has alleged to support his claims occurred more than two years ago. (Id.; Reply
[23] at 5.) Confusingly, elsewhere in his response, Mr. Patrick claims that the last eviction from
Regency TownHomes of an African American tenant took place “in late summer of 2011,” less
8 – OPINION AND ORDER

than two years before he filed suit. (Resp. [21] at 12.) This fact is not alleged in the original or
the amended complaint. Even if it were, Defendant’s evictions of other African American
tenants do not injure Mr. Patrick’s rights under 42 U.S.C. § 3604(a) and (b). The continuing
violation doctrine is therefore unavailing.
Mr. Patrick’s response can be construed also to argue for equitable estoppel. Mr. Patrick
claims that, in February of 2011, Defendants warned him that if he tried to join with other
tenants to challenge their evictions “he would find it hard to obtain good housing” in the future.
(Resp. [21] at 12.) Because of this threat, Mr. Patrick delayed filing a claim in fear that
Defendants would sabotage his attempts to find housing. Id. Mr. Patrick asserts that Defendants
later “provided him with reassurances that their practices would be reviewed.” Id. This
representation also caused Mr. Patrick to delay filing suit. Id. Whether these facts are sufficient
to estop Defendants to assert the statute of limitations is academic, however, because Mr. Patrick
did not allege them in his complaint. His claims against Defendants for discriminatory eviction
under FHA are barred.

CONCLUSION
Because I conclude that Mr. Patrick has failed to state a claim under section 1983 and the
statute of limitations has run on his FHA claim, Defendants’ Motion to Dismiss [15] is
GRANTED. Mr. Patrick shall have leave to amend his complaint in order to include facts
supporting an inference that InterWest Properties and/or Ms. Garcia wrongfully prevented him

9 – OPINION AND ORDER

from filing his FHA claim within the limitations period, and to state any other claims he may
have that remain timely.
IT IS SO ORDERED.
DATED this

7th

day of November, 2013.
/s/ Michael W. Mosman
MICHAEL W. MOSMAN
United States District Judge

10 – OPINION AND ORDER