Hooper v. United States Department of Housing and Urban Development et al

Filing 28

ORDER: Defendants motion to dismiss 21 is GRANTED. Claims 1, 2, 3, 4, and 5 are dismissed with prejudice. Claims 6, 8, and 9 are dismissed without prejudice. Claim 7 is dismissed with leave to file an amended complaint to cure deficiencies identified as to claim 7 only. Plaintiff has leave to file a First Amended Complaint on or before July 5, 2017. Signed on 5/31/2017 by Judge Michael J. McShane. (cp)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

DENNIS RUSSELL HOOPER,
Plaintiff,
v.

Civ. No. 6:17-cv-00031-MC
OPINION AND ORDER

UNITED STATES DEPARTMENT OF
HOUSING AND URBAN
DEVELOPMENT, et al.,
Defendants.
_____________________________
MCSHANE, Judge:
Plaintiff Dennis Hooper was a tenant of Defendant Coos-Curry Housing Authority from
June 2012 to March 2017. Mr. Hooper brings nine claims: (1) 14th Amendment Failure to
Protect; (2) and (3) 14th Amendment Due Process Violation; (4) and (5) ADA violations; (6)
Implied covenant of quiet enjoyment; (7) FOIA violation; (8) Oregon Residential Landlord
Tenant Act retaliation claim; and (9) Oregon Residential Landlord Tenant Act breach of contract.
Six of the claims are asserted against Defendant Coos-Curry Housing Authority which
has moved for their dismissal pursuant to Rule 12(b)(6). For the reasons stated below,
Defendant’s motion to dismiss (ECF No. 21) is GRANTED. Claims 1, 2, 3, 4, and 5 are
dismissed with prejudice. Claims 6, 8, and 9 are dismissed without prejudice. Claim 7 is
dismissed with leave to file an amended complaint to cure deficiencies identified as to claim 7
only.
1 – OPINION AND ORDER

FACTUAL BACKGROUND
When considering the factual allegations on a Rule 12(b)(6) motion to dismiss, the court
must take the complaint’s allegations of material fact as true and construe them in the light most
favorable to the nonmoving party. Grosz v. Lassen Community College Dist., 360 Fed. Appx.
795 (9th Cir. 2009) (citing Keams v. Tempe Technical Inst., Inc., 39 F.3d 222, 224 (9th Cir.
1994)). I construe the facts with these standards in mind.
Mr. Hooper is a veteran with a physical disability suffering from paraplegia and requires
a wheelchair for mobility. Amended Compl. ¶ 4, ECF No. 18. Mr. Hooper was a tenant in one of
four separate units in two structures in public housing managed by the Coos Curry Housing
Authority beginning in June 2012. Id. at ¶¶ 5-6. The four units share an outside common area,
parking lot, and sidewalks. Id.
In April 2013, new tenants, Richard York and Jana York, moved into the unit across and
diagonal from Plaintiff’s. Id. at ¶ 7. The new tenants began to surveil Mr. Hooper’s movements
and actions, and converse with, harass, and berate him. Id. They blocked Plaintiff’s full use of
the common area sidewalk. Id. The new tenants also disregarded the rules of the property and
tenancy. Id. These rule violations affected Mr. Hooper’s peaceful enjoyment and use of his
residency and “negatively impacted Plaintiff’s tenancy . . . including, but not limited to, common
area accessibility; invasion of privacy; verbal harassment and threats and disturbance. Id. at ¶¶ 814, 43-69.
Beginning in July 2013 and continuing through January 2017, Plaintiff submitted
numerous complaints to the Coos-Curry Housing Authority management about the new tenants’
actions and rule violations. Id. at ¶ 8. Mr. Hooper submitted written complaints on July 10, 2013;
July 23, 2013; July 29, 2013; August 22, 2013; August 31, 2013; December 29, 2013; April 20,

2 – OPINION AND ORDER

2014; May 14, 2014; May 21, 2014; May 30, 2014; May 30, 2014 (a second complaint); July 10,
2014; July 24, 2014; September 21, 2014; October 7, 2014; November 21, 2014; December 2,
2014; December 17, 2014; August 24, 2015; September 20, 2015; September 21, 2015;
September 22, 2015; June 2, 2016; June 22, 2016; September 29, 2016; October 1, 2016. Id. at
¶¶ 44-69. The written complaints concerned his neighbors’ landscaping activities, obstructing
some sidewalks in the common area, smoking on the premises, submitting an “inappropriate”
maintenance request, shouting away a deer that had wandered onto the property, and other
unspecified rule violations. Id. Defendant would sometimes respond affirmatively to plaintiff’s
complaints, sometimes respond negatively, and sometimes not respond at all. Id. When written
complaints failed to improve the atmosphere of Plaintiff’s tenancy, Mr. Hooper initiated the
Housing Authority’s grievance process. Id. at ¶ 9.Only one grievance hearing was held. Id.
Third-party mediation was explored, but did not take place. Id. at 11.
In November 2016, a scheduled annual inspection was performed inside Plaintiff’s
residence. Id. at 15. On December 21, 2016, Plaintiff was informed that a re-inspection would be
needed. Plaintiff took the position that none of the “failed items” listed for the re-inspection were
lease violations, and denied Coos-Curry Housing Authority’s request for re-inspection. Id. CoosCurry Housing Authority initiated eviction proceedings for violation of the rental agreement,
proving notice on January 19, 2017, stating that Plaintiff’s tenancy would be cancelled on
February 20, 2017. Id. Eviction documents were filed on February 21, 2017 in state court. Id.
Plaintiff appeared by telephone at a March 1, 2017 hearing, but could not afford the filing fee
with his answer, and a default judgment was issued on March 2, 2017, awarding possession of
the apartment to Coos-Curry Housing Authority. Id. at 17. A Forced Entry Detainer mandated
Plaintiff vacate the property by March 12, 2017 which he has. Id.

3 – OPINION AND ORDER

STANDARD OF REVIEW
To survive a motion to dismiss under Rule 12(b)(6), a complaint must contain sufficient
factual matter that “state[s] a claim to relief that is plausible on its face.” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007). A claim is plausible on its face when the factual allegations
allow the court to infer the defendant’s liability based on the alleged conduct. Ashcroft v. Iqbal,
556 U.S. 662, 663 (2009). The factual allegations must present more than “the mere possibility
of misconduct.” Id. at 678.
While considering a motion to dismiss, the Court must accept all allegations of material
fact as true and construe them in the light most favorable to the non-movant. Burgert v. Lokelani
Bernice Pauahi Bishop Trust, 200 F.3d 661, 663 (9th Cir. 2000). However, the Court is “not
bound to accept as true a legal conclusion couched as a factual allegation.” Papasan v. Allain,
478 U.S. 265, 286 (1986). If the complaint is dismissed, leave to amend should be granted unless
the court “determines that the pleading could not possibly be cured by the allegation of other
facts.” Doe v. United States, 58 F.3d 494, 497 (9th Cir. 1995) (citations and internal quotation
marks omitted).
DISCUSSION
First Claim for Relief: 14th Amendment Failure to Protect
Plaintiff’s first claim alleges that defendant Coos-Curry Housing Authority failed to
provide safe and habitable housing by failing to protect him from his neighbors’ unwanted
contacts and the obstacles his neighbor placed on the sidewalks near plaintiff’s rental unit.
Amended Compl. ¶¶ 21-26.
To sufficiently state a substantive due process claim, a plaintiff must, as a threshold
matter, show that a state actor deprived them of a constitutionally protected life, liberty, or

4 – OPINION AND ORDER

property interest. Shanks v. Dressel, 540 F.3d 1082, 1087 (9th Cir. 2008). The state, however, is
generally not required by the Constitution to “protect the life, liberty, and property of its citizens
against invasion by private actors.” Id. (citing DeShaney v. Winnebago County Dep't of Soc.
Serv., 489 U.S. 189, 195 (1989) (Emphasis added). Consequently, the state's failure to protect an
individual from “harms inflicted by persons not acting under color of law” will not ordinarily
give rise to § 1983 liability. Id. (citing Huffman v. County of Los Angeles, 147 F.3d 1054, 1058
(9th Cir.1998).
There are two exceptions to the general rule that a public entity's failure to protect an
individual from harms by non-governmental actors will not ordinarily give rise to § 1983
liability: (1) the “special relationship” exception; and (2) the “danger creation” exception.
Johnson v. City of Seattle, 474 F.3d 634, 639 (9th Cir. 2007). When the state has “created a
special relationship with a person, as in the case of custody or involuntary hospitalization,”
courts have imposed liability “premised on an abuse of that special relationship.” Id. (citing L.W.
v. Grubbs, 974 F.2d 119, 121 (9th Cir. 1992)). The danger creation exception requires
affirmative conduct by the state, creating a danger that the plaintiff would not have otherwise
faced. Id.
The plaintiff’s status as a tenant does not create a special relation with a housing
authority landlord. See, Arceneaux v. Marin Hous. Auth., No. 15-CV-00088-MEJ, 2015 WL
3396673, at *5 (N.D. Cal. May 26, 2015). A special relationship requires more and is generally
found only in those instances where the government actor is holding the individual in custody
involuntarily in jail or in a hospital. See, e.g., Youngberg v. Romeo, 457 U.S. 307, 314–325
(1982) (patient in custodial facility for the mentally retarded denied protection from violence);

5 – OPINION AND ORDER

Estelle v. Gamble, 429 U.S. 97, 103–104 (1976) (prisoner denied Eighth Amendment right to
medical care).
Mr. Hooper’s situation parallels those cases in which a person voluntarily resides in a
state facility. See, e.g., Campbell vs. State of Washington Dept. of Social and Health Services,
671 F.3d 837, 842-843 (9th Cir. 2011) (no special relationship exists where a person, even one
with mental deficiencies, voluntarily resides in a state facility under its custodial rules); Walton
v. Alexander, 44 F.3d 1297, 1305 (5th Cir.1995) (student's voluntary enrollment in school for the
deaf and “willful relinquishment of a small fraction of liberty simply is not comparable to that
measure of almost total deprivation experienced by a prisoner or involuntarily committed mental
patient”). Mr. Hooper alleges only to be a “HUD program participant” (Amended Compl. ¶ 23)
who receives federally subsidized housing assistance (Amened Compl. ¶ 22) but who was
otherwise voluntarily living in public housing managed by defendant. There is no allegation, nor
could it be alleged under the facts of the Amended Complaint, that defendants held Mr. Hooper
in involuntary custody.
The second exception also does not apply to this case, because the defendants did not
take affirmative conduct which created a danger to plaintiff. See, Arceneaux, supra, 2015 WL
3396673, at *5 (there is no indication that Defendant's affirmative actions placed Plaintiff's
liberty or property in more danger than already existed). The danger alleged by Plaintiff was
created by neighboring tenants Richard York and Jana York who are not parties to this suit.
Amended Compl. ¶ 25. These two private actors allegedly harassed and berated Mr. Hooper
beginning in July 2013 and continuing through January 2017. Amended Compl. ¶¶ 7-8. The
allegations against defendant Coos-Curry Housing Authority are only for a failure to act, not for
any affirmative conduct on their behalf. Amended Compl. ¶¶ 24-25. As in Arceneaux, the

6 – OPINION AND ORDER

Amended Complaint, construed liberally in favor of the Plaintiff, show only at most that Mr.
Hooper was allowed to live in a situation not safe from third parties. The Due Process Clause,
however, as held by the Supreme Court, does not require the State to protect the life, liberty, and
property of its citizens against invasion by private actors. DeShaney, supra, 489 U.S. 189, 195
(1989).
Because neither the “special relationship” exception nor the “danger creation” exception
apply, Plaintiff cannot state a Due Process claim under § 1983. There is no allegation or
indication within the allegations that Defendants themselves deprived Plaintiff of life, liberty, or
property. Plaintiff’s First Claim for Relief is dismissed.
Third Claim for Relief: 14th Amendment Due Process Violation
Plaintiff’s third claim alleges that Coos-Curry Housing Authority failed to follow its own
grievance procedures when plaintiff filed complaints and grievance notices regarding his
neighbors’ unwanted activities in violation of his due process rights. (Amended Compl. ¶¶ 3037).
A claim for Due Process violation must be predicated on violation of a constitutionally
protected interest. Brown v. Holder, 763 F.3d 1141, 1147 (9th Cir. 2014) (citing Bd. of Regents
of State Colls. v. Roth, 408 U.S. 564, 569 (1972)). If there is not a violation of a constitutionally
protected interest, then there cannot be a claim for violation of due process. The alleged interest
violated here is Plaintiff’s quiet enjoyment of his property from private individuals. This does
not rise to a constitutionally protected interest. Additionally, a claim that Coos-Curry Housing
Authority failed to follow its own grievance procedures is also not a basis for a Due Process
claim. Brown, 763 F.3d at 1148 (9th Cir. 2014) (citing United States v. Calderon–Medina, 591
F.2d 529, 531 (9th Cir.1979) (administrative law, not Due Process, is the basis for adjudicating

7 – OPINION AND ORDER

actions by federal agencies which violated their own rules promulgated to give a party a
procedural safeguard)).
Because there is no allegation that a constitutionally protected interest was violated by
Coos-Curry Housing Authority, Plaintiff’s Third Claim for Relief for Due Process violation is
dismissed.
Second Claim for Relief: 14th Amendment Due Process Violation
Plaintiff’s second claim alleges that HUD violated his due process rights by failing to
assure that Coos-Curry Housing Authority followed it grievance procedures. Amended. Compl. ¶
28. Because, as explained above, there is not a cognizable claim for Due Process violation
against Coos-Curry Housing Authority, there is not a cognizable claim for Due Process violation
against HUD. If Coos-Curry Housing Authority did not violate a constitutionally protected
interest, then HUD cannot be liable for failing to assure Coos-Curry Housing Authority did not
violate a constitutionally protected interest. Plaintiff’s second claim for relief is dismissed.
Fifth Claim for Relief: ADA Violation
Plaintiff’s fifth claim alleges that Coos-Curry Housing Authority violated Plaintiff’s
rights under the Americans with Disabilities Act by “allowing” his neighbors to impede his
freedom of movement throughout the common area of the public housing project and to obstruct
his use of the sidewalks on the property. Amended Compl. ¶ 41. Tenant Richard York’s
“intimidation and harassment” prevented Plaintiff from fully accessing the grassy sections of the
common areas. Id. Plaintiff asserts that Coos-Curry Housing Authority had an obligation to
“protect Plaintiff’s full access under the ADA.” Id. Title III of the ADA bars disability
discrimination in public accommodations and services operated by private entities. The ADA

8 – OPINION AND ORDER

does not apply however to residential apartment complexes. As addressed succinctly by the
Court in Arceneaux v. Marin Hous. Auth., supra, 2015 WL 3396673 (N.D. Cal. May 26, 2015):
Title III of the ADA provides that “[n]o individual shall be discriminated against
on the basis of disability in the full and equal enjoyment of the goods, services,
facilities, privileges, advantages, or accommodations of any place of public
accommodation by any person who owns, leases (or leases to), or operates a place
of public accommodation.” 42 U.S.C. § 12182(a). Section 12181(7)(A) includes
within the definition of public accommodation “an inn, hotel, motel, or other
place of lodging.” 42 U.S.C. § 12181(7)(A). However, apartment complexes do
not constitute “public accommodations” within the meaning of the ADA. See
Indep. Hous. Servs. of S.F. v. Fillmore Ctr. Assocs., 840 F.Supp. 1328, 1344 &
n.14 (N.D.Cal. 1993) (finding that “the legislative history of the ADA clarifies
that ‘other place of lodging’ does not include residential facilities” such as
apartments and condominiums); Smith v. Powdrill, 2013 WL 5786586, at *11
(C.D.Cal. Oct. 28, 2013) (“[T]he ADA's reasonable accommodations requirement
does not extend to residential housing.”); McColm v. Anber, 2006 WL 3645308,
at *5 (N.D.Cal. Dec. 12, 2006) (“residential portions of housing developments do
not fall within the bounds of the ADA”).
Arceneaux v. Marin Hous. Auth., No. 15-CV-00088-MEJ, 2015 WL 3396673, at *7 (N.D. Cal.
May 26, 2015).
Because a residential complex is not subject to the ADA, Plaintiff’s Fifth Claim for
Relief for ADA violation is dismissed.
Fourth Claim for Relief: ADA Violation
Plaintiff’s fourth claim alleges that HUD was indifferent to and therefore liable for CoosCurry Housing Authority’s violation of the ADA. Amended. Compl. ¶ 39. Because a residential
complex is not subject to the ADA, as explained above, Plaintiff’s Fifth Claim for Relief against
Coos-Curry Housing Authority is dismissed. For the same reasoning, Plaintiff’s Fourth Claim for
Relief is dismissed.
Seventh Claim for Relief: Freedom of Information Act
Plaintiff’s seventh claim alleges that HUD failed to provide requested information.
Amended Compl. ¶ 71. Under 5 U.S.C. § 552(a)(4)(B), jurisdiction over FOIA claims is

9 – OPINION AND ORDER

dependent upon a showing that an agency has (1) “improperly”; (2) “withheld”; (3) “agency
records.” Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 150 (1980).
“Judicial authority to devise remedies and enjoin agencies can only be invoked, under the
jurisdictional grant conferred by § 552, if the agency has contravened all three components of
this obligation.” Id.
Because the Amended Complaint fails to allege all necessary elements, Plaintiff’s
Seventh Claim for Relief is dismissed with leave to file an amended complaint in order to cure
deficiencies identified with Plaintiff’s FOIA claim as against HUD.
Sixth, Eighth, and Ninth Claims for Relief
The sixth, eighth and ninth claims for relief address state contract law and the state
Oregon Residential Landlord Tenant Act. These claims do not have a factual nexus to Plaintiff’s
FOIA claim. Because these claims raise issues dealing solely with questions of state law, this
Court declines to exercise supplemental jurisdiction. 28 U.S.C. § 1367(c). Claims 6, 8 and 9 of
the Amended Complaint are dismissed without prejudice.
CONCLUSION
For these reasons, defendant’s motion to dismiss (ECF No. 21) is GRANTED. Claims 1,
2, 3, 4, and 5 are dismissed with prejudice. Claims 6, 8, and 9 are dismissed without prejudice.
Claim 7 is dismissed with leave to file an amended complaint to cure deficiencies identified as to
claim 7 only. Plaintiff has leave to file a First Amended Complaint on or before July 5, 2017.
IT IS SO ORDERED.
Dated this 31st day of May, 2017.
___/s/Michael J. McShane_____
Michael J. McShane
United States District Judge

10 – OPINION AND ORDER