Hood et al v. Pope et al
Filing
39
MEMORANDUM AND ORDER GRANTED 26 AMENDED MOTION MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM, 27 MOTION to Dismiss 17 Amended Complaint/Counterclaim/Crossclaim etc. ( Agreed Mediator due by 2/6/2015)(Signed by Judge Nancy F. Atlas) Parties notified.(sashabranner, 4)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
ANTHONY HOOD and PRINCESS
WILLIAMS,
Plaintiffs,
v.
TESSA POPE, et al.,
Defendants.
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CIVIL ACTION NO. H-14-1665
MEMORANDUM AND ORDER
Plaintiffs Anthony Hood and Princess Williams, proceeding pro se, bring this
action alleging housing discrimination and other claims. Defendants Asset Plus
Corporation (“Asset Plus”), Karen Hefner (“Hefner”), Courtney Lambert (“Lambert”),
Tessa Pope (“Pope”), and Fred Caldwell (“Caldwell”) have filed an Amended Motion
to Dismiss Third Amended Complaint [Doc. # 26], to which Plaintiffs have responded
[Doc. # 38].
In addition, Defendants Houston Police Department (“HPD”) and
Officer Jacob Turner (“Turner”) have filed a Motion to Dismiss Plaintiffs’ Third
Amended Complaint and Jury Demand [Doc. # 27], to which Plaintiffs have
responded [Doc. # 37].1 The motions now are ripe for decision. Having considered
1
Plaintiffs filed this action on June 13, 2014, and then filed several amended pleadings
without seeking leave of Court. See Docs. # 1, # 5, # 10, # 17. Defendants filed
motions to dismiss. See Docs. # 7, # 11. On October 8, 2014, this Court granted the
(continued...)
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the parties’ submissions, all matters of record, and applicable legal authorities, the
Court determines that the Defendants’ motions should be granted.
I.
BACKGROUND
Plaintiffs’ Complaint alleges that, in January 2012, Plaintiffs inquired about
renting an apartment at The Lakeview Lofts (the “Property”), a community managed
by Defendant Asset Plus. Plaintiff Williams states that on January 19, 2012, she
spoke on the phone with an Asset Plus employee and was told about a “move-in
special” for a “specific floor plan,” and immediately drove to the Property. However,
she alleges that, once the Asset Plus employee saw her face-to-face, the employee
denied that the unit was available. Plaintiffs allege that the denial was based on
Williams’ race. Complaint, ¶ 14.
Despite this allegation, Plaintiffs state that, on January 27, 2012, they signed
a lease for the originally requested unit. Complaint, ¶ 15. Plaintiffs state that they
received the phone call from Asset Plus informing them that the unit was available
“[a]fter the [P]laintiffs mentioned fair housing” on January 24, 2012. Their lease
began in February 2012.
1
(...continued)
Plaintiffs leave to file their Third Amended Complaint [Doc. # 17] (“Complaint”),
ordered that Plaintiffs could not file further amendments to pleadings without leave
of Court, denied the pending motions to dismiss without prejudice, and set deadlines
for Defendants to file motions responsive to the Complaint. See Order [Doc. # 21].
Defendants then filed the currently pending motions.
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Plaintiffs allege that, at a later unspecified date, they threatened to make a fair
housing complaint against Asset Plus and subsequently were moved to a different unit
on the Property. They state that the new unit was closer to Asset Plus employees and
made Plaintiffs “vulnerable to continued harassment.” Complaint, ¶ 16. The alleged
harassment included “being followed, the constant sounds of slammed doors, and
beatings on walls and metal,” which Plaintiffs characterize as psychological tactics
designed to make Plaintiffs want to leave the unit and agree not to expose Defendants’
alleged racial discrimination and fraud. Id. Plaintiffs further allege that Asset Plus
employees attempted to defraud them by collecting extra animal deposits and further
refused to provide Plaintiffs with a copy of their lease. Complaint, ¶¶ 15, 17.
On June 6, 2012, three Asset Plus employees and the Property owner allegedly
approached one of the Plaintiffs at “an offsite storage facility” and “yelled and cursed
the plaintiff out alleging that the plaintiff was trespassing,” when in fact the plaintiff
had rented the unit for four months. Complaint, ¶ 19.
Plaintiffs allege further that, on July 27, 2012, Defendants tried to evict them.
Plaintiffs allege that Defendant Lambert and HPD Officer Turner served them with
a three-day vacate notice for non-payment, and would not listen when Plaintiffs
attempted to prove that they had paid. When Plaintiffs requested a copy of the
original lease, Defendants Hefner and Pope allegedly came to Plaintiffs’ unit and beat
on the door aggressively. Plaintiffs felt intimidated and filed a report with law
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enforcement.
Complaint, ¶¶ 20-21. Plaintiffs further state that they received an
emailed “mutual release form” from Asset Plus which provided that Plaintiffs were
not to bring future legal action or complaints in connection with their lease, contract
fraud, harassment, or any other related events. They made multiple requests for the
name and contact information for the Property owner but state that Defendants refused
to provide the information. Complaint, ¶¶ 22-23.
On August 20, 2012, Asset Plus employees (Defendants Lambert and Pope) and
Officer Turner allegedly “approached” Plaintiffs and Plaintiffs, in fear, immediately
and repeatedly requested that someone call the police. They state that none of the
three Defendants who were present revealed that Turner was an officer. Plaintiffs
state that when Plaintiffs commented that African-Americans “in the community”
were being harassed based on their race, Turner “charged at one of the plaintiffs,”
threatened to handcuff and jail Plaintiffs, pulled a gun from under his shirt, and “tried
to shoot one of the Plaintiffs from at least 20 yards away” but only stopped because
he noticed one of Plaintiffs recording the incident. He then pointed his gun and
demanded that Plaintiff stop recording. Plaintiffs allege that this incident violated
several criminal statutes and their First Amendment rights to record an officer.
Plaintiffs called 911 and, when Harris County Sheriff’s officers arrived, they told
Plaintiffs that other persons had called 911 because they had seen a white made
attempt to shoot a black male. Complaint, ¶¶ 24-27. Plaintiffs state they filed a
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complaint with IAD but were deterred through “various tactics.” Complaint, ¶ 28.
On August 21, 2012, Defendants allegedly entered Plaintiffs’ apartment and
“left various vacate notices around the unit in an attempt to intimidate the plaintiffs
into leaving the property.” Complaint, ¶ 29. On August 22, 2012, Plaintiffs left the
apartment “out of fear for their lives” and “at the advice of the Houston fair housing.”
Complaint, ¶ 30. They removed the last of their belongings on August 30, 2012.
Complaint, ¶ 34.
Defendants entered an eviction for nonpayment of rent in court records on
September 7, 2012. Complaint, ¶ 35. Plaintiffs state that in the course of the eviction
proceedings Defendants’ counsel made a series of defamatory comments about
Plaintiffs. They state that they then were forced to live out of a truck for seven
months, their credit score dropped, and their plans for a landscaping business that was
“about to take off” were thwarted. Complaint, ¶ 36.
On January 4, 2013, Plaintiff filed an administrative complaint after their
eviction, which was investigated by the Texas Workforce Commission Civil Rights
Division (“TWCCRD”).
See Exhibit A to Doc. # 26. On May 31, 2013, the
TWCCRD issued a Determination of No Reasonable Cause regarding Plaintiffs’
housing discrimination claims and dismissed the complaint, finding that the evidence
did not show discrimination or harassment based on Plaintiffs’ race. Id.
II.
RULE 12(B)(6) LEGAL STANDARD
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Traditionally, courts view with disfavor a motion to dismiss for failure to state
a claim under Federal Rule of Civil Procedure 12(b)(6). Turner v. Pleasant, 663 F.3d
770, 775 (5th Cir. 2011) (citing Harrington v. State Farm Fire & Cas. Co., 563 F.3d
141, 147 (5th Cir. 2009)); Lormand v. US Unwired, Inc., 565 F.3d 228, 232 (5th Cir.
2009); Test Masters Educ. Servs., Inc. v. Singh, 428 F.3d 559, 570 (5th Cir. 2005).
The Supreme Court has explained that in considering a motion to dismiss under Rule
12(b)(6), a complaint must be liberally construed in favor of the plaintiff and all wellpleaded facts taken as true. See Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009); Erickson
v. Pardus, 551 U.S. 89, 94 (2007); Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
555–56 (2007); Harrington, 563 F.3d at 147. However, “[t]hreadbare recitals of the
elements of a cause of action, supported by mere conclusory statements, do not
suffice.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555). The complaint
must contain “sufficient factual matter, accepted as true, to ‘state a claim to relief that
is plausible on its face.’” Id. (quoting Twombly, 550 U.S. at 570); Patrick v. WalMart, Inc., 681 F.3d 614, 617 (5th Cir. 2012). When there are well-pleaded factual
allegations, a court should presume they are true, even if doubtful, and then determine
whether they plausibly give rise to a claim to relief. Iqbal, 556 U.S. at 679. This
determination of plausibility is a context-specific task that requires the court to draw
on its judicial experience and common sense. Id.
In considering a motion to dismiss, a court ordinarily must limit itself to the
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contents of the pleadings and attachments thereto. Lone Star Fund V (U.S.), L.P. v.
Barclays Bank PLC, 594 F.3d 383, 387 (5th Cir. 2010); Collins v. Morgan Stanley
Dean Witter, 224 F.3d 496, 498 (5th Cir. 2000) (citing FED. R. CIV. P. 12(b)(6)); FED.
R. CIV. P. 12(d)). Documents “that a defendant attaches to a motion to dismiss are
[also] considered part of the pleadings if they are referred to in the plaintiff’s
complaint and are central to her claim.” Id. at 498-99 (quoting Venture Assocs. Corp.
v. Zenith Data Sys. Corp., 987 F.2d 429, 431 (7th Cir. 1993)); see Kane Enters. v.
MacGregor (USA), Inc., 322 F.3d 371, 374 (5th Cir. 2003). “In so attaching, the
defendant merely assists the plaintiff in establishing the basis of the suit, and the court
in making the elementary determination of whether a claim has been stated.” Collins,
224 F.3d at 499. These presumably are documents whose authenticity no party
questions. See Walch v. Adjutant General’s Dep’t of Tex., 533 F.3d 289, 294 (5th Cir.
2008) (citing 5B CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE
AND PROCEDURE §
III.
1357 (3d ed. 2004)).
ANALYSIS
Plaintiffs bring claims against Defendants for violations of various criminal
statutes (18 U.S.C. §§ 241, 242, 249); for violations of the Fair Housing Act (42
U.S.C. §§ 3604, 3617); for violations of their First Amendment right to freedom of
expression; and for defamation of character.
A.
Criminal Causes of Action
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Plaintiffs bring claims against Defendants for violations of 18 U.S.C. § 241
(civil rights conspiracy), 18 U.S.C. § 242 (criminal civil rights violations), and 18
U.S.C. § 249 (hate crimes). These statutory provisions pertain to criminal charges,
which can be brought only by government prosecutors. Plaintiffs, as private actors,
do not have the authority to bring these causes of action.
Plaintiffs’ claims under 18 U.S.C. §§ 241, 242, and 249 are dismissed with
prejudice.
B.
Fair Housing Act
Plaintiffs bring claims under the Fair Housing Act for housing discrimination,
42 U.S.C. § 3604, and for threats or coercion in connection with exercise of rights to
fair housing, 42 U.S.C. § 3617. They allege that they initially were denied a particular
apartment unit and move-in special based on their race, that they were given
discriminatory terms in an animal addendum to the lease, that they were harassed
during their rental period when Defendants made loud noises and followed them, and
that Defendant Turner, an off-duty HPD officer working as a courtesy officer for
Asset Plus, pulled a gun on Plaintiffs to prevent them from voicing their concerns
about the alleged discrimination. Plaintiffs filed an administrative complaint with
TWCCRD, which body found no reasonable cause to believe that a discriminatory
housing practice occurred and dismissed Plaintiffs’ complaints. In particular, the
TWCCRD found that Defendants did not refuse to rent to Plaintiffs based on race and
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did not subject Plaintiffs to different terms, conditions, privileges, services, or
facilities based on race.2 Plaintiffs subsequently brought this action.
Plaintiffs identify their Section 3604 claim as a claim of “housing
discrimination through disparate treatment,” in particular, that Plaintiffs are AfricanAmericans and “were treated differently than others who attempted and rented
apartment units during said time period.” Complaint, at 1. A disparate treatment
claim requires a showing of “deliberate discrimination.” L&F Homes Development,
L.L.C. v. City of Gulfport, Miss., 538 F. App’x 395, 401 (5th Cir. 2013) (citing Munoz
v. Orr, 200 F.3d 291, 299 (5th Cir. 2000)). When establishing a claim of deliberate
discrimination through indirect evidence, the plaintiff must show (1) that the
defendant’s stated reason for its decision was a pretext for illegal discrimination and
(2) a reasonable inference that race was a significant factor in the defendant’s
decision. Artisan/American Corp. v. City of Alvin, Tex., 588 F.3d 291, 295 (5th Cir.
2009).3
The Fifth Circuit has held that Sections 3604(a) and 3604(b), both of which are
invoked by Plaintiffs in support of their disparate treatment claim, are limited to the
2
See Exhibit A to Doc. # 26.
3
A defendant’s decision “may have been unsound, unfair, or even unlawful, yet not
have been violative of the Fair Housing Act if there is no evidence that race was a
significant factor” in the decision. Id. at 291 & n.9 (quoting Simms v. First Gibraltar
Bank, 83 F.3d 1546, 1556 (5th Cir. 1996)) (internal quotation marks and alterations
omitted).
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initial “sale or rental” of the property. As for Section 3604(a), which makes it
unlawful “[t]o refuse to sell or rent after the making of a bona fide offer, or to refuse
to negotiate for the sale or rental of, or otherwise to make unavailable or deny, a
dwelling to any person because of [race],” the Fifth Circuit held that the statutory
language did not reach claims of current homeowners regarding the value or
habitability of their property:
[Authority from the Seventh, Fourth, and Third Circuits] buttress[es] our
conclusion that the simple language of § 3604(a) does not apply to
current homeowners [or renters] whose complaint is that the value or
“habitability” of their houses has decreased because such a complaint is
not about “availability.”
Cox v. City of Dallas, 430 F.3d 734, 741 (5th Cir. 2005) (rejecting claim that the City
of Dallas violated Section 3604(a) when it failed to prevent dumping at the housing
site). See Southend Neighborhood Imp. Ass’n v. St. Clair Cty, 743 F.2d 1207, 1210
(7th Cir. 1984) (“Section 3604(a) is designed to ensure that no one is denied the right
to live where they choose for discriminatory reasons, but it does not protect the
intangible interests in the already-owned property raised by the plaintiffs’
allegations”); AHF Cmty Dev’t, L.L.C. v. City of Dallas, 633 F. Supp. 2d 287, 299-302
(N.D. Tex. 2009) (Fitzwater, J.). Similarly, Cox limited Section 3604(b)’s protection
against discrimination “in the terms, conditions, or privileges of sale or rental of a
dwelling, or in the provision of services or facilities in connection therewith, because
of [race],” to the “sale or rental” of a dwelling. Cox, 430 F.3d at 745-47. The Court
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held that the statutory language “in connection therewith” did not prohibit
discrimination in the provision of services or facilities “in connection” with a dwelling
in general, but rather “in connection” the sale or rental of a dwelling. Cox, 430 F.3d
at 745-46.
In this case, Plaintiffs’ Complaint alleges that Plaintiff Williams was told on
January 19, 2012, that a move-in special was being offered and that a specific floor
plan was available but that, when an Asset Plus employee saw Plaintiffs “face to
face,” she denied availability of the unit based on Plaintiffs’ race. Complaint, ¶ 14.
However, Plaintiffs further plead that on January 27, Plaintiffs “signed a lease for the
originally requested unit.” Id. ¶ 15. Based on these allegations, Plaintiffs have not
stated a claim under either Section 3604(a) or 3604(b) because they have not alleged
that they were denied the requested unit, or otherwise discriminated against, in
connection with the initial rental of the unit. See Cox, 430 F.3d 734.4 Although
Plaintiffs allege harassment during their rental period, such as additional fees, loud
noises, and being followed, these allegations do not pertain to the initial rental of the
4
Plaintiffs’ Complaint also invokes Section 3604(c), which makes it unlawful to
“make, print, or publish, or cause to be made, printed, or published any notice,
statement, or advertisement, with respect to the sale or rental of a dwelling that
indicates any preference, limitation, or discrimination based on [race], or an intention
to make any such preference, limitation, or discrimination.” However, Plaintiffs have
alleged no facts supporting a claim under this subsection. To the extent Plaintiffs rely
on the promised “move-in special” to state a claim under Section 3604(c), such
allegation is insufficient because Plaintiffs have made no allegation that the move-in
special “indicated any preference, limitation, or discrimination based on [race],” as
the statute requires.
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unit and therefore do not state a claim under Section 3604.5
Plaintiffs also bring a claim under Section 3617, which makes it unlawful to
“coerce, intimidate, threaten, or interfere with any person in the exercise or enjoyment
of, or on account of his having exercised or enjoyed, or on account of his having aided
or encouraged any other person in the exercise or enjoyment of, any right granted or
protected by section . . . 3604 . . . of this title.” 42 U.S.C. § 3617. Because Plaintiffs
have failed to state a claim under Section 3604, their Section 3617 claim also fails.
Reule v. Sherwood Valley I Council of Co-owners Inc., 235 F. App’x 227 (5th Cir.
2007); McZeal v. Ocwen Fin. Corp., 252 F.3d 1355 (5th Cir. 2001). See AHF, 633 F.
Supp. 2d at 302-03.6
Plaintiffs’ claims under the Fair Housing Act are dismissed with prejudice.
C.
First Amendment
Plaintiffs complain that Defendant Turner, an off-duty HPD officer employed
by Asset Plus as a security officer, violated their First Amendment rights when he
pulled a gun and threatened to arrest them after hearing Plaintiffs complain about
5
Similarly, Plaintiffs’ allegation that Officer Turner pulled a gun and threatened to
arrest them does not pertain to the initial rental of the unit. However, as addressed in
the subsequent section, these allegations are relevant to Plaintiffs’ First Amendment
claim.
6
The Asset Plus Defendants further argue that Plaintiffs’ claims under the Fair Housing
Act are barred by the statute of limitations. However, this issue is complicated by the
tolling of the limitations period while administrative proceedings were pending. The
Court need not and does not reach the limitations issue.
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racial discrimination at the Property. Complaint, ¶ 27. See Keenan v. Tejeda, 290
F.3d 252, 258 (5th Cir. 2002) (elements of First Amendment retaliation claim outside
of public employment context).
Plaintiffs have not properly pleaded this claim because they have not brought
a claim under Section 1983, which creates a private right of action to redress the
violation of constitutional rights committed by a person acting under color of state
law. 42 U.S.C. § 1983; Cornish v. Correctional Servs. Corp., 402 F.3d 545, 549 (5th
Cir. 2005). Plaintiffs’ First Amendment claim therefore will be dismissed without
prejudice. If Plaintiffs wish to replead their claim under Section 1983, they must do
so on or before February 6, 2015.
D.
Defamation of Character
Plaintiffs bring a claim against the Asset Plus Defendants for defamation
alleging that, during the eviction proceedings in September 2012, Defendants and
Brian Cweren (counsel for Asset Plus) made a series of knowingly false statements
about Plaintiffs, then submitted those statements to the presiding judge and made them
part of the public record.
Under Texas law, a one-year statute of limitations applies to defamation claims.
TEX. CIV. PRAC. & REM. CODE § 16.002(a) (“A person must bring suit for malicious
prosecution, libel, slander, or breach of promise of marriage not later than one year
after the day the cause of action accrues.”) In this case, the latest possible accrual
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time for Plaintiffs’ defamation claim is September 2012, when Plaintiffs’ eviction
proceedings took place.7 The limitations period for this claim therefore expired in
September 2013. Because Plaintiffs did not file this suit until June 2014, the
defamation claim is barred by the statute of limitations and is dismissed with
prejudice.
IV.
CONCLUSION AND ORDER
For the foregoing reasons, it is hereby
ORDERED that Asset Plus’ Amended Motion to Dismiss Third Amended
Complaint [Doc. # 26] is GRANTED. All of Plaintiffs’ claims against Defendants
Asset Plus Corporation, Karen Hefner, Courtney Lambert, Tessa Pope, and Fred
Caldwell are DISMISSED with prejudice. It is further
ORDERED that the Motion to Dismiss Plaintiffs’ Third Amended Complaint
and Jury Demand [Doc. # 27] filed by HPD and Officer Turner is GRANTED. If
Plaintiffs wish to replead their First Amendment claim, they must do so on or before
February 6, 2015. Failure to meet this deadline will result in entry of a final
judgment in accordance with this Memorandum and Order.
SIGNED at Houston, Texas, this 15th day of January, 2015.
7
Plaintiffs have not alleged otherwise and have not argued that any tolling period
applies.
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