Moore v. Skyview Apartment et al

Filing 18

MEMORANDUM signed by District Judge Kevin H. Sharp on 1/5/2012. (xc:Pro se party by regular and certified mail.)(hb)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

ANNETTE T. MOORE,
Plaintiff,
v.
SKYVIEW APARTMENT, FIRST CUMBERLAND
PROPERTY, PHILLIP L. OWNED,
ROBERT TRENT, MAGGIE HOWELL,
SARA CHAMBERS, STEVE HAROLL,
MARTHA HOPKINS, PAST OR PRESENT
SKYVIEW APARTMENT EMPLOYEES,
AMERICAN APARTMENT MANAGEMENT CO.,
and OTHER AFFILIATE,
Defendants.

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Case No. 3:11-cv–00626
Judge Sharp

MEMORANDUM OPINION
The Court previously granted Plaintiff Annette Moore’s Application to Proceed in Forma Pauperis
(see ECF No. 5).

However, although the Court noted that it was questionable whether Plaintiff’s

complaint raised any colorable claims under federal law, the Court deferred conducting the initial review
required by 28 U.S.C. § 1915(e)(2) at that time and instead ordered Plaintiff to file a supplemental
pleading further explaining the factual and legal basis for her claims against each defendant. Plaintiff has
filed a supplemental pleading in which she attempts to comply with the Court’s directive, but the Court
nonetheless finds that the complaint fails to state a claim under federal law for which relief may be
granted.
Under 28 U.S.C. § 1915(e)(2), the Court is required to conduct an initial review of any action
allowed to proceed without prepayment of fees and costs, and to dismiss the complaint if it is facially
frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief
against a defendant who is immune from such relief. McGore v. Wrigglesworth, 114 F.3d 601, 604 (6th
Cir.1997), overruled on other grounds by Jones v. Bock, 549 U.S. 199 (2007). In conducting the initial
screening required by statute and by Sixth Circuit precedent, the Court must liberally construe the
complaint and accept as true the factual allegations set forth therein. See Thomas v. Eby, 481 F.3d 434,
437 (6th Cir. 2007) (“We must ‘construe the complaint in the light most favorable to the plaintiff [and]

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accept all well-pleaded factual allegations as true.’” (alteration in original) (quoting Trzebuckowski v. City
of Cleveland, 319 F.3d 853, 855 (6th Cir. 2003))). Further, as with all pleadings submitted by pro se
litigants, the complaint is held to less stringent standards than those drafted by attorneys. Urbina v.
Thoms, 270 F.3d 292, 295 (6th Cir. 2001). Under these circumstances, “[d]ismissal of a complaint for the
failure to state a claim on which relief may be granted is appropriate only if it appears beyond a doubt that
the plaintiff can prove no set of facts in support of his claim that would entitle him to relief.” Brown v.
Bargery, 207 F.3d 863, 867 (6th Cir. 2000).
In the present complaint, Plaintiff alleges that she is a disabled person living in subsidized public
housing covered by the United States Housing Act of 1937 (“USHA”), and that Defendants allegedly
receive federal funds to provide housing to eligible low-income families. Defendants are the Section 8
apartment complex where Plaintiff resides, as well as other entities that the Court presumes are the
property manager and owner, the general partners of the owner, and various employees of either the
apartment complex, the property manager or the property owner, although Plaintiff does not explain who
any of the defendants are. Plaintiff appears to be alleging that Defendants have violated USHA by failing
to provide safe housing at the Skyview Apartments, in light of the criminal activity, killings, destruction of
property, and shootings in close proximity to Plaintiff’s apartment, as well as the harassment, intimidation,
noise, foul and derogatory language, crowds and other inconveniences Plaintiff’s neighbors have caused
her to suffer. More specifically, Plaintiff seems to be claiming, on the basis of 24 C.F.R. § 982.307, that
the managers and owners of the apartment have failed in their responsibility to screen potential tenants,
and that Defendants have knowingly or with deliberate ignorance and reckless disregard violated HUD
requirements that they screen tenants.

As a result, Plaintiff has been the victim of “never ending

episodes of harassment, intimidation, humiliation, name calling, spitting” perpetrated by inadequately
screened tenants; every time one tenant is evicted for engaging in criminal activity or other unacceptable
behavior, another who engages in the same type of behavior moves in, which ultimately leads to another
eviction. (Compl. ¶ 50.) Plaintiff might also be alleging that she has been subjected to retaliation for
having made numerous complaints about other tenants over the years; this retaliation appears to take the
form of permitting tenants whom Defendants knew or should have known to have a propensity for violent,
criminal behavior to rent apartments close to Plaintiff’s apartment. Plaintiff also claims she was yelled at

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and harassed and discriminated against on one recent occasion by an on-site maintenance man for
asking him to shut off an outdoor water faucet spigot or valve one night after the night manager had failed
to respond to an emergency call. The maintenance man did in fact shut off the water, but Plaintiff also
alleges that she received a notice a few days later stating “please remember at no time is it appropriate to
knock on the maintenance guys [sic] door.” (Compl. ¶ 49.)
Plaintiff asserts that Defendants’ actions violated the “HUD requirements”; the regulations
implementing USHA; Section 818 of the Disability Act, which the Court construes as a reference to
Section 818 of the 1988 Fair Housing Amendment Act; 42 U.S.C. §§ 1983, 1985, and 1986; the
Americans with Disabilities Act (“ADA”); Section 504 of the Rehabilitation Act, and Tennessee common
law. Plaintiff seeks compensatory and punitive damages, and attorneys’ fees.
The majority of Plaintiff’s factual allegations pertain to events that took place from 1996 through
2009. In Tennessee, the statute of limitations applicable to personal-injury tort claims as well as actions
under § 1983, the ADA, and the Rehabilitation Act is one year. Tenn. Code Ann. § 28-3-104(a); Porter v.
Brown, 289 F. App’x 114, 116 (6th Cir. 2008); Williams v. Trevecca Nazarene Coll., 162 F.3d 1162
(Table), 1998 WL 553029, at *1 n.2 (6th Cir. Aug. 17, 1998). In order to dismiss a complaint brought in
forma pauperis under the preliminary screening process based on the expiration of the statute of
limitations, a federal court must find that the expiration of the statute of limitations is clear on the face of
the complaint. Johnson v. Hill, 965 F. Supp. 1487, 1489 (E.D. Va. 1997); McLittle v. O’Brien, 974 F.
Supp. 635, 637 (E.D. Mich. 1997). To the extent Plaintiff’s allegations regarding events that occurred
from 1996 through 2009 are premised upon state tort law or seek to vindicate rights protected under the
ADA, the Rehabilitation Act, or § 1983 (including any claims brought under §§ 1985 and 1986, USHA and
the Fair Housing Act), these claims are clearly, on the face of the complaint, barred by the statute of
limitations and are subject to dismissal.
Plaintiff’s complaint references only a few incidents that occurred in 2011, within the statute of
limitations, but the facts alleged simply do not support a claim for an actionable violation of Plaintiff’s
rights under federal law.1 Specifically with respect to those claims, the Sixth Circuit has held that USHA

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One of these is the above-referenced incident when Plaintiff was yelled at by an on-site
maintenance employee and later received a notice from the apartment manager stating “please
remember at no time is it appropriate to knock on the maintenance guys [sic] door.” (Compl. ¶ 49.)

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and its implementing regulations pertaining to the establishment of public housing and the intention of
providing safe and affordable housing, do not themselves contain “rights-creating language” that would
give rise directly to an independent cause of action, nor do they create rights enforceable in an action
brought under 42 U.S.C. § 1983. Johnson v. City of Detroit, 446 F.3d 614, 626–28 (6th Cir. 2006); cf.
Banks v. Dallas Housing Authority, 271 F.3d 605, 608 (5th Cir. 2001) (rejecting plaintiffs’ claims that they
had an implied private right of action under the USHA to “decent, safe, and sanitary” housing); see also
Ross v. Midland Mgmt. Co., No. 02 C 8190, 2003 WL 21801023 (N.D. Ill. Aug. 1, 2003) (noting that the
USHA does not “provide a private cause of action regarding the maintenance of apartment units”). Thus,
to the extent Plaintiff is attempting to bring claims under the United States Housing Act or its
implementing regulations, including 24 C.F.R. §§ 103.320 and 982.307, either directly or under 42 U.S.C.
§§ 1983, 1985 and 1986 based upon the Defendants’ failure to provide her with safe housing, the claims
are subject to dismissal for failure to state a claim upon which relief may be granted.
Plaintiff also appears to be attempting to state a claim for retaliation, either under state or federal
law. To be clear, however, Plaintiff does not allege that she has actually been evicted or received an
eviction notice, or that her rent has been improperly raised. She has alleged that her request to be
allowed to move to another handicap-accessible apartment was refused, but it appears she is already
living in a handicap-accessible unit. Although Plaintiff alleges that other tenants (who are not defendants
in this action) have on occasion harassed her and interfered with her access to her apartment, Plaintiff
does not actually allege that Defendants have taken any action that interfered with or prevented her
exercise or enjoyment of any rights conveyed by the Fair Housing Act or the USHA. Plaintiff’s insinuation
that Defendants are intentionally moving problem tenants into the units close to hers is too speculative to
be credited. In sum, Plaintiff has not alleged sufficient facts to state a claim for retaliation against any of
the named Defendants.

Plaintiff alleges this was an act of discrimination because other tenants knocked on the maintenance
man’s door without being yelled at. Plaintiff also alleges that on June 11, 2011, she was yelled at and
harassed by another tenant who was angry because Plaintiff had complained to management about “the
constant traffic inside the breezeway coming from [the tenant’s] house” (Compl. ¶ 30). Plaintiff also
alleges that the tenant carried out a threat to call her uncle who was a police officer. A police car arrived
and the tenant stated that it was her uncle. Plaintiff alleges that this action “amounted to a threat on [her]
life, and that the tenant continues to “have comments every time she walks by the plaintiff.” (Id.) Finally,
Plaintiff asserts that she recently witnessed an on-site maintenance man exchange a “hand shake alleged
. . . to be the ‘GANG’ sign” with some other tenants. (Compl. ¶¶ 44–45.)

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For these reasons, and because Plaintiff’s supplemental pleading has not provided any additional
legal or factual support for these claims, Plaintiff’s complaint will be dismissed in its entirety for failure to
state a claim upon which relief may be granted. The claims based on events that occurred between 1997
and 2009 will be dismissed with prejudice as barred by the statute of limitations. The claims based on
events that occurred in 2011 will be dismissed without prejudice. The Court is sympathetic to Plaintiff’s
plight, but the federal courts do not provide the relief Plaintiff seeks.
An appropriate order will enter.

Kevin H. Sharp
United States District Judge