Armstrong, Jr. v. Moroe et al
ORDER adopting 8 Report and Recommendations and granting 2 Motion for Leave to Proceed in forma pauperis; Plaintiff shall have thirty (30) days to file a second amended complaint that corrects deficiencies as outlined in the Report and Recommendation - So Ordered by Chief Judge William E. Smith on 8/11/2017. (Barletta, Barbara)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
ROBERT MOROE and ROGER BYRON,
NEMIAH ARMSTRONG, JR.,
C.A. No. 17-111 S
WILLIAM E. SMITH, Chief Judge.
Magistrate Judge Patricia A. Sullivan filed a Report and
Recommendation (“R&R”) on July 25, 2017 (ECF No. 8) recommending
that the Court provisionally grant Plaintiff’s Motion for Leave
to Proceed in forma pauperis (“IFP Application”) (ECF No. 2) but
that Plaintiff’s Amended Complaint (ECF No. 6) fails to state a
claim upon which relief may be granted.
The Magistrate Judge
also recommended providing Plaintiff with thirty days to file a
second amended complaint that corrects the deficiencies in the
amended complaint as outlined in the R&R.
Neither party has filed an objection to the R&R.
Plaintiff’s IFP Application (ECF No. 2) is GRANTED.
has thirty days from the date of this Order to file a second
amended complaint that cures the deficiencies described in the
Plaintiff fails to file a second amended complaint within thirty
days, then the Amended Complaint (ECF No. 6) shall be summarily
dismissed and the case shall be terminated.
IT IS SO ORDERED.
William E. Smith
Date: August 11, 2017
Case 1:17-cv-00111-S-PAS Document 8 Filed 07/25/17 Page 1 of 9 PageID #: 53
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
NEMIAH ARMSTRONG, JR.,
ROBERT MOROE and ROGER BYRON, :
C.A. No. 17-111S
REPORT AND RECOMMENDATION
PATRICIA A. SULLIVAN, United States Magistrate Judge.
On March 22, 2017, Plaintiff Nemiah Armstrong filed pro se a complaint, along with a
motion for leave to proceed in forma pauperis (“IFP”) (ECF No. 2) and a motion to appoint
counsel (ECF No. 3). Both motions have been referred to me pursuant to 28 U.S.C. § 636(b)(1).
Plaintiff has now resolved the confusion caused by his failure to include the page that stated the
factual allegations supporting his claim by filing what the Court has labeled as his “Amended
Complaint.” ECF No. 6. Accordingly, these motion are now ripe for decision.
Plaintiff unquestionably qualifies for IFP status; thus, if this case survives screening, I
recommend that the IFP motion be granted. However, the IFP motion renders this case subject
to preliminary screening pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). Having reviewed the
Amended Complaint with the liberality required in any case with a pro se plaintiff, Hughes v.
Rowe, 449 U.S. 5, 9 (1980); Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (per curiam), I
recommend that it be summarily dismissed without prejudice for failing to state a claim on which
relief may be granted, after Plaintiff has been afforded an opportunity to amend. In light of this
recommendation, I also recommend that Plaintiff’s motion to appoint counsel be denied as moot.
Case 1:17-cv-00111-S-PAS Document 8 Filed 07/25/17 Page 2 of 9 PageID #: 54
In his IFP application, Plaintiff alleges that he is a disabled individual, while the
Amended Complaint provides that he lives in an unspecified “housing community” and that he
was moved (“evicted”) to a different housing unit that was “not appropriate for [his] medical
disability.” ECF No. 6 at 7. 1 However, nothing that he has filed includes any factual allegations
from which the Court might discern the nature of the disability or whether it plausibly could
establish the foundation for a colorable claim. Nor does the Amended Complaint provide any
facts at all to establish that he was entitled to and denied an accommodation by a federally
funded housing authority or by a landlord legally obliged to make such accommodations. Nor
does it provide any plausible facts establishing how the named defendants might be legally
responsible for the denial of an accommodation beyond the vague assertion that they were
The attachments to the Amended Complaint suggest that Plaintiff may already have
initiated this same claim with the assistance of counsel, but then abandoned it, in that an attached
letter establishes that Plaintiff did obtain legal assistance culminating in January 2016 from
Rhode Island Legal Services in connection with a “grievance hearing at the Woonsocket
Housing Authority.” ECF No. 6 at 10. However, that engagement ended when Plaintiff advised
his attorney that he did not wish to attend a “second or continued” hearing. Id. Whether this
failure to appear is fatal to the housing-based claim Plaintiff has tried to include in his Amended
Complaint is impossible to say.
A principal focus of the Amended Complaint is an incident in 2004, during which
Plaintiff alleges that he was “brutally attacked and beaten” by police officers, one of whom is
An identical page is located at ECF No. 6 at 30.
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named as a defendant in this case, Mr. Roger Byron. ECF No. 6 at 7. Any claim based on this
incident appears, on the face of the Amended Complaint, to border on frivolous in that it is
doomed, potentially by the doctrine of claim preclusion, and certainly by any applicable statute
of limitations. While the pleading vaguely asserts that the case “was taken to court,” but he
could not afford to keep his lawyer and dropped the case “after there was a charge of $6,000 . . .
and there were no consequences for those individuals,” ECF No. 6 at 7, the attachments to the
Amended Complaint tell a somewhat clearer and different story. It appears that Plaintiff was
charged with resisting arrest in 2004 but the charge was dismissed and the record of it expunged.
Id. at 14, 16. However, Plaintiff’s civil action arising from the incident, brought with the
assistance of counsel, was unsuccessful in that an award of $5435 in attorney’s fees was made in
favor of the defendants and, when Plaintiff failed to appear to explain why he had not paid this
fee award, his case was dismissed and his attorney’s motion to withdraw was approved by the
court. ECF No. 6 at 15. The Amended Complaint alleges that it seeks to reassert these judicially
terminated claims from 2004 against Mr. Byron. It is unclear whether Plaintiff has ever paid the
amount required by the order of the state court in 2004, including whether it is a debt is still
owed to Mr. Byron.
The third focus of the Amended Complaint is a vague and conclusory catalog of the
alleged conduct of the two defendants. Plaintiff alleges that he has lived in “the same housing
community” all his life and had no problems until both defendants – the same Mr. Byron, who is
claimed to have participated in the 2004 incident, as well as Mr. Robert Moroe, who does not
appear to be accused of having been involved in the 2004 incident – started “working there” in
unspecified positions. ECF No. 6 at 7. Against Mr. Moroe, the Amended Complaint alleges that
he has used “fo[u]l language,” “stalk[ed]/film[ed]” Plaintiff, harassed and threatened to sue the
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agency where Plaintiff volunteers, asked for Plaintiff’s personal information, had Plaintiff’s car
towed, wrote a letter that falsely claimed that Plaintiff’s son could not visit, and defamed,
embarrassed and humiliated Plaintiff. Id. Against Mr. Byron, aside from the injury arising from
the 2004 incident, the Amended Complaint alleges that he arranged to have Plaintiff’s car towed,
called Plaintiff “racial slurs,” “had [Plaintiff] evicted” (apparently from one unit to another that
Plaintiff claims is unsuited to his disability) and sat in front of Plaintiff’s house on March 6 of an
unspecified year, which Plaintiff found to be intimidating. Id. The Amended Complaint
contains no plausible facts permitting the inference that this conduct is actionable or that either
of the named defendants is somehow legally responsible.
Based on these allegations, Plaintiff seeks to “finally attain support and validation that
these have been acts of racism and harassment.” ECF No. 6 at 7. He also seeks monetary
damages for pain and suffering and defamation. He asks the Court to provide a remedy that
acknowledges the falsity of Defendants’ statement that he (Plaintiff) is “a liar and a man on a
witch hunt.” Id. To invoke federal question jurisdiction, 2 on his civil cover sheet, Plaintiff wrote
“1983,” ECF No. 6 at 24, presumably reflecting his intent to rely on 42 U.S.C. § 1983, although
the Amended Complaint does not refer to any claims grounded in the United States Constitution.
In the body of the Amended Complaint, Plaintiff states that he is relying on four federal statutes
and various “Articles” that appear to relate to housing. They are listed by Plaintiff in the
Amended Complaint as follows:
“Section 818 of the fair housing act.”
“804F3B of title VIII of the civil rights act of 1968.”
“42 U.S.C. 361o(8).”
Plaintiff does not seek to invoke the Court’s diversity jurisdiction, nor could he. His civil cover sheet alleges that
he and both Defendants all live in Rhode Island. ECF No. 6 at 24.
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“VI of the Civil Rights Act of 1964 [42 USS. 2000d-2000d-4).”
“Article VIII. leasing policies 4-34 additions to the household and visitors[;]
Article XVI Grievance procedure 4-66, 4-67, 4-68[,] 4-44[;] Article 12 transfer
policy 4-39(c)[,] 4-40-(c-1) [and] 4-41-(3-a).”
ECF No. 6 at 27. The Court’s analysis of these references leads it to conclude that Plaintiff
principally seeks to invoke the protections of the Fair Housing Act (“FHA”). The FHA was
enacted as the Civil Rights Act of 1968, 42 U.S.C. § 3601, et seq. Plaintiff’s legal references
suggest that he is relying on it to invoke his right to bring a private action pursuant to 42 U.S.C.
§ 3613(a); his right pursuant to 42 U.S.C. § 3604(f)(3)(B) to reasonable accommodation as
necessary to afford him an equal opportunity to use and enjoy a dwelling; and his right pursuant
to 42 U.S.C. § 3617 to be free of coercion, threats or intimidation based on the exercise of his
rights under the FHA. In addition to the FHA, Plaintiff also relies on Title VI of the Civil Rights
Act of 1964, 42 U.S.C. § 2000d, et seq., which bars recipients of federal assistance from
engaging in racial discrimination. Finally, the referenced “Articles” appear to be the policies
adopted by the Woonsocket Housing Authority, which address such matters as who may occupy
a dwelling unit, how to transfer a tenant to a unit that accommodates a disability and how to
present a grievance to the Housing Authority.
Law and Analysis
The legal standard for dismissing a complaint for failure to state a claim pursuant to 28
U.S.C. §§ 1915(e)(2) and 1915A is the same used when ruling on a Rule 12(b)(6) motion to
dismiss. Hodge v. Murphy, 808 F. Supp. 2d 405, 408 (D.R.I. 2011). To survive a motion to
dismiss, a complaint must contain sufficient factual allegations to “state a claim to relief that is
plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). A well-pled complaint must affirmatively state a basis for
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federal jurisdiction, typically either a federal question or complete diversity of citizenship. 28
U.S.C. §§ 1331, 1332; see Hall v. Curran, Civil No. 08-cv-350-JL, 2009 WL 112552, at *2
(D.N.H. Jan 16, 2009) (“[t]o establish diversity jurisdiction, a complaint must allege complete
diversity of citizenship between plaintiff and defendants”).
Plaintiff’s attempt to assert a claim under Title VI of the Civil Rights Act of 1964 may
quickly be resolved – Title VI does not support a private right of action. This question was
definitively determined by the United States Supreme Court in Alexander v. Sandoval, 532 U.S.
275 (2001): “[n]either as originally enacted nor as later amended does Title VI display an intent
to create a freestanding private right of action to enforce regulations promulgated under § 602 . .
. [w]e therefore hold that no such right of action exists.” Id. at 293. In any event, to the extent
that Plaintiff intended to state a claim based on racial discrimination, the reference to nothing
more than “racial slurs” and “acts of racism” is insufficient as a matter of law. See Caddy v. J.P.
Morgan Chase Bank, 237 F. App’x 343, 346 n.3 (10th Cir. 2007) (elements of prima facie case
alleging housing racial discrimination under the FHA are: “(1) [claimant] is a member of a racial
minority; (2) she applied for and was qualified to rent an apartment [from defendant]; (3) she
was denied the opportunity to rent or to inspect or negotiate for the rental of [an apartment]; and
(4) the housing opportunity remained available”); Kilgore v. Providence Place Mall, C.A. No.
16-135S, 2016 WL 3092990, at *3-4 (D.R.I. Apr. 1, 2016) (no matter what statute provides legal
basis for claim, viable allegation of discrimination or harassment based on race must include
more than allegations that plaintiff is in racially protected class and was harassed), adopted, 2016
WL 3093450 (D.R.I. June 1, 2016). The Amended Complaint does not even purport to allege
that Plaintiff is in a racially protected class.
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By contrast, Plaintiff’s invocation of the FHA is conceivably viable. The FHA prohibits
discriminatory housing practices based on a person’s handicap. Batista v. Cooperativa De
Vivienda Jardines De San Ignacio, 776 F.3d 38, 42 (1st Cir. 2015) (citing 42 U.S.C. §
3604(f)(2)). It bans such discrimination “in the terms, conditions, or privileges of sale or rental
of a dwelling, or in the provision of services or facilities in connection with such dwelling,
because of a handicap” of an individual. 42 U.S.C. § 3604(f)(2). Discrimination includes a
“refusal to make reasonable accommodations in rules, policies, practices, or services, when such
accommodations may be necessary to afford [handicapped persons] equal opportunity to use and
enjoy a dwelling.” Id. § 3604(f)(3)(B); Astralis Condo. Ass’n v. Sec’y, U.S. Dep’t of Hous. &
Urban Dev., 620 F.3d 62, 66 (1st Cir. 2010). For a disparate treatment claim under FHA, the
claimant must “produce either (a) direct evidence of discriminatory intent or (b) indirect
evidence creating an inference of discriminatory intent.” Batista v. Cooperativa De Vivienda
Jardines De San Ignacio, 776 F.3d 38, 43 (1st Cir. 2015). The FHA also contemplates claims
based on retaliation through coercion, threats or intimidation on account of the exercise of the
right to seek to redress housing discrimination. Id. at 44-45; see Schroeder v. De Bertolo, 879 F.
Supp. 173, 178 (D.P.R. 1995).
To state a plausible claim for housing discrimination under FHA, a complaint must
contain plausible facts sufficient to establish how the claimant is qualified as a disabled person,
how he was subjected to discrimination, whether he was denied an accommodation, what was the
accommodation that was “reasonable and necessary” but denied, whether, how and by whom he
was coerced, threatened and intimidated on account of his assertion of his FHA rights, and why
the individuals named as defendants are potentially responsible. Batista, 776 F.3d at 42-45.
Plaintiff carries the burden of demonstrating that he has an impairment that limits a major life
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activity, as well as pleading with sufficient particularity all the other elements of each claim. See
Candlehouse, Inc. v. Town of Vestal, Civil Action No. 3:11-CV-0093 (DEP), 2013 WL
1867114, at *8 (N.D.N.Y. May 3, 2013). In its present form, the Amended Complaint
accomplishes none of these goals; therefore, it fails to state a claim under the FHA.
While the failure to state a claim for the reasons set out above requires that this action
must be dismissed, to guide Plaintiff should he attempt to cure these deficiencies by repleading,
the Court also notes that the Amended Complaint fails to comply with the basic pleading
requirements in Fed. R. Civ. P. 8(a)(2) and 10(a)-(b), which mandate that a complaint must set
forth with specificity the “who, what, when, where, and why” information necessary for a
plausible claim. See Educadores Puertorriquenos en Accion v. Hernandez, 367 F.3d 61, 68 (1st
Cir. 2004) (“complaint should at least set forth minimal facts as to who did what to whom, when,
where, and why”). As such, it fails to “‘give the defendant fair notice of what the . . . claim is
and the grounds upon which it rests.’” Twombly, 550 U.S. at 555 (alteration in original)
(quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)); see Iqbal, 556 U.S. at 680 (complaint must
nudge claims from conceivable to plausible). If Plaintiff decides to file an amended complaint,
he must cure all of these deficits or face the risk of summary dismissal.
Based on the foregoing, Plaintiff’s IFP motion (ECF No. 2) is provisionally granted.
However, I find that the Amended Complaint should be dismissed at screening based on its
failure to state a claim. See 28 U.S.C. § 1915(e)(2). Nevertheless, before the Court takes that
step, I recommend that the Court provide Plaintiff with thirty days from the adoption of this
report and recommendation to file a second amended complaint. Brown v. Rhode Island, 511 F.
App’x 4, 5, 7 (1st Cir. 2013) (per curiam). If he fails to do so or if he files a new complaint that
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is still deficient, I recommend that the Amended Complaint (ECF No. 6) be summarily dismissed
without prejudice and that the case be terminated. In light of this recommendation, Plaintiff’s
motion for appointment of counsel (ECF No. 3) is denied as moot.
Any objection to this report and recommendation must be specific and must be served
and filed with the Clerk of the Court within fourteen (14) days after its service on the objecting
party. See Fed. R. Civ. P. 72(b)(2); DRI LR Cv 72(d). Failure to file specific objections in a
timely manner constitutes waiver of the right to review by the district judge and the right to
appeal the Court’s decision. See United States v. Lugo Guerrero, 524 F.3d 5, 14 (1st Cir. 2008);
Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603, 605 (1st Cir. 1980).
/s/ Patricia A. Sullivan
PATRICIA A. SULLIVAN
United States Magistrate Judge
July 25, 2017
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