Rafiq v. Lopez et al

Filing 39

ORDER ADOPTING MEMORANDUM AND RECOMMENDATIONS re: 34 Memorandum and Recommendations, granting 33 MOTION for Summary Judgment (Signed by Judge Sim Lake) Parties notified. (aboyd, 4)

United States District Court
Southern District of Texas

ENTERED

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

SHEIKH M. RAFIQ,
Plaintiff,

v.
MANUEL LOPEZ, Owner of Nueva
Vida Senior Apartment, Owner
of Tejano Center for Community
Concerns, Inc.; KENNETH TANN,
Owner of MMM Housing
Management, Inc.; and DOLORES
SANCHEZ,
Defendants.

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January 25, 2017
David J. Bradley, Clerk

CIVIL ACTION NO. H-15-2210

ORDER ADOPTING MAGISTRATE JUDGE'S
MEMORANDUM AND RECOMMENDATION

Pending before the court are Plaintiff's Letter of Thanks to
Judge Nancy K.

Johnson and Plaintiff's Response to Defendants'

Motion for Summary Judgment and Plaintiff's Notice to
[P]rovide
Notice")
Response

[H]im

a

U.S.

Attorney

("Pl.'s

Thanks,

[A]rrange/

Response,

&

(Docket Entry No. 35) and Defendant Nueva Vida Apartments'
to

Plaintiff's

Objections

to

the

Memorandum and Recommendation of January 3,

Magistrate
2017

Judge's

(Docket Entry

No. 38) . 1
Plaintiff concurrently filed a Notice of Appeal (Docket Entry
No.

36).

1

The appeal of

the magistrate

judge's Memorandum and

In its response, Defendant argues that Plaintiff's objections
were not timely filed, but the court considered the objections in
full as if timely filed.

Recommendation, a non-appealable order, does not divest this court
of

jurisdiction

to

review

Plaintiff's

objections.

United States v. Green, 882 F.2d 999, 1001 (5th Cir. 1989)
of appeal from a non-appealable order,

however,

See
("Notice

does not render

void for lack of jurisdiction acts of the trial court taken in the
interval

between

filing

of

the

notice

and

dismissal

of

the

appeal.")

(citingUnitedStatesv. Hitchman, 602 F.2d689, 692 (5th

Cir. 1979), superseded by statute on other grounds as recognized in
United States v. Romans, 823 F.3d 299, 316 (5th Cir. 2016)).
Plaintiff requests that the court deem his objections to be
"an affidavit/sworn statement" because he is unable,
indigence and poor health,

to engage a notary. 2

due to his

Although highly

unusual, the court treats the relevant factual statements as sworn.
This court must review de novo any portions of the magistrate
judge's

proposed

matters

to

objections.

which

findings
the

and

recommendations

parties

have

filed

on

dispositive

specific

See Fed. R. Civ. P. 72 (b) (3); 28 U.S.C.

§

written

636 (b) (1).

The court has reviewed de novo the Memorandum and Recommendation in
its entirety.

The magistrate judge concluded that Plaintiff failed

to raise a fact question on either the discrimination claim that
Defendant prevented Plaintiff from accessing public transportation
for the disabled or the retaliation claim that Defendant instituted
eviction

2

proceedings

in

response

to

Plaintiff's

filing

of

Pl.'s Thanks, Response, & Notice, Docket Entry No. 35, p. 10.
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discrimination complaints with the United States Department of
Housing and Urban Development.
The summary judgment evidence establishes that the sign, which
Defendant

placed outside

the

apartment

complex

to protect

driveway structure, was placed there for a legitimate reason.

the
The

summary judgment evidence also establishes that after Plaintiff
notified Defendant that the sign was deterring METROLift drivers
from entering the complex,

the manager of Nueva Vida Apartments

contacted METRO supervisors to clarify that the sign did not apply
to METROLift.

Plaintiff states in his objections that the sign is

still posted outside the apartment complex and speculates that it
may

be

confusing

to

new

METROLift

drivers,

which

may

"inconvenience/hazards to disabled/ elderly residents. " 3

cause

He does

not assert that he has been required to board a METROLift van
outside of

the

complex or has

suffered any harm as

a

result.

Plaintiff's evidence does not controvert the testimony of Nueva
Vida Apartments' manager.

Even when taking Plaintiff's assertions

in his objections as sworn testimony, nothing suggests intentional
discrimination based on disability.
Regarding the retaliation claim, Plaintiff does not state in
his objections that he engaged in a protected activity prior to the
filing of the eviction action.

Absent any evidence to that effect,

the claim cannot survive summary judgment.

3

Id. at 8.
-3-

Plaintiff's objections are OVERRULED.

The court is of the

opinion that the Memorandum and Recommendation should be adopted in
its entirety.
It is ORDERED that the Memorandum and Recommendation (Docket
Entry No. 34) is hereby ADOPTED by this court.
SIGNED at Houston, Texas, on this 25th day of January, 2017.

SIM LAKE
UNITED STATES DISTRICT JUDGE

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