Hatcher v. TM Associates, Inc. et al

Filing 19

OPINION and ORDER granting 9 Motion to Dismiss for Failure to State a Claim; granting 11 Motion to Strike. The plaintiff is granted leave to file a second amended complaint, provided it is filed within 21 days from the date of this order. Signed by Judge James P. Jones on 9/14/2017. (tvt)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
ABINGDON DIVISION
SHAMSIDDEEN HATCHER,

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Plaintiff,
v.
TM ASSOCIATES, INC., ET AL.,
Defendants.

Case No. 1:17CV00019
OPINION AND ORDER
By: James P. Jones
United States District Judge

Shamsiddeen Hatcher, Pro Se Plaintiff; Timothy McConville and Luke
Archer, Odin, Feldman & Pittleman, P.C., Reston, Virginia, for Defendant TM
Associates Management, Inc.
The plaintiff in this case, proceeding pro se, seeks damages for alleged
violations of the Fair Housing Act. Because I find that the Amended Complaint
fails to state a viable claim, I will grant the defendant’s Motion to Dismiss.1
I.
In his Amended Complaint, 2 the plaintiff alleges that in June of 2006, the
former property managers of the Springdale Village Apartments 3 complex in

1

The correct name of the defendant is TM Associates Management, Inc. It has
also moved to strike the plaintiff’s reference to a class action. For the reasons stated
herein, I will grant the Motion to Strike.
2

The plaintiff filed his Complaint on June 2, 2017. He later filed an Amended
Complaint in response to TM Associates Management, Inc.’s Motion to Dismiss. In his
Amended Complaint, the plaintiff removed the reference to 42 U.S.C. § 1983, in view of

Bristol, Virginia, barred him from the premises for creating a disturbance. He
further alleges that on “[t]he day that the plaintiff was barred from the premesis
[sic] there were no disturbances just friendly and peaceful basketball games.” Am.
Compl. 5, ECF No. 15. He asserts that he was barred and forced to vacate his
apartment as a result of racial profiling and discrimination.
TM Associates Management, Inc. (“TMAM”) is the current property
manager of the apartment complex. The plaintiff alleges that despite his repeated
requests to be removed from the barred list, TMAM and its property manager,
Kayla Sutherland,4 refuse to remove the plaintiff’s name from the barred list,
which prohibits him from being a tenant or visiting friends and family who live in
the apartment complex. He states that “[t]he defendants [sic] policy is that anyone
on the barr [sic] list cannot apply for housing or . . . step a foot on the property.”
Id. at 4. The plaintiff further alleges that he initially was placed on the barred list
solely because he is African American. He asserts that “[t]he caucasian americans
were allowed to stay on the premesis [sic], there were no barrs [sic] issued to them,
and nothing was even said to them.” Id. at 3. He seeks compensatory and punitive
the fact that no state action is involved. I will consider the facts set forth in both the
initial Complaint and the Amended Complaint.
3

The apartment complex is now named Woodland Apartments.

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The plaintiff also attempted service of process on defendant Kayla Sutherland at
the address of the apartment complex. However, according to the manager on duty at the
time of service, no one by the name of Kayla Sutherland is employed with the business.
Therefore, the summons was returned unexecuted.
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damages. Additionally, the plaintiff includes references in both the Complaint and
Amended Complaint asserting a class action.
TMAM has moved to dismiss the Complaint for failure to state a claim upon
which relief can be granted, asserting a number of grounds for dismissal. TMAM
also has moved to strike the plaintiff’s request that the matter proceed as a class
action. The motions have been fully briefed and are now ripe for decision.5
II.
“The purpose of a Rule 12(b)(6) motion is to test the sufficiency of a
complaint. . . .” Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999).
A motion to dismiss “does not resolve contests surrounding the facts, the merits of
a claim, or the applicability of defenses.” Republican Party of N.C. v. Martin, 980
F.2d 943, 952 (4th Cir. 1992). In ruling on a motion to dismiss, the court must
regard as true all of the factual allegations contained in the complaint, Erickson v.
Pardus, 551 U.S. 89, 94 (2007), and must view those facts in the light most
favorable to the plaintiff. Christopher v. Harbury, 536 U.S. 403, 406 (2002).
“Where, as here, the motion to dismiss involves a civil rights complaint, [I] must
be especially solicitous of the wrongs alleged and must not dismiss the complaint
unless it appears to a certainty that the plaintiff would not be entitled to relief under
5

I will dispense with oral argument because the facts and legal contentions are
adequately presented in the materials before the court and argument would not
significantly aid the decisional process.
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any legal theory which might plausibly be suggested by the facts alleged.” Rios v.
Veale, 648 F. App’x 369, 370 (4th Cir. 2016) (unpublished).6 Furthermore, where
the plaintiff is proceeding without a lawyer, the court has an obligation
to construe the complaint liberally. See Vinnedge v. Gibbs, 550 F.2d 926, 928 (4th
Cir. 1977).
Rule 12(b)(6) does “not require heightened fact pleading of specifics, but
only enough facts to state a claim to relief that is plausible on its face.” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility
when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Further, “the tenet that a court must
accept as true all of the allegations contained in a complaint is inapplicable to legal
conclusions.” Id. at 678. “While legal conclusions can provide the framework of a
complaint, they must be supported by factual allegations.” Id. at 679.
The Fair Housing Act (“FHA”), 42 U.S.C. § 3613, grants a private right of
action for an alleged discriminatory housing practice. Such action thus arises
under federal law for purposes of the federal question jurisdiction statute. 28
U.S.C. § 1331.

6

I have omitted internal quotation marks, alterations, and citations here and
throughout this opinion, unless otherwise noted.
4

TMAM argues that the Complaint must be dismissed because the plaintiff
fails to sufficiently plead his FHA claim. Specifically, TMAM asserts that this
claim fails because the FHA does not grant a visitation right and the plaintiff fails
to sufficiently allege that the defendants were motivated by a discriminatory
purpose or intent. TMAM is correct that the FHA does not grant a right of
visitation. The FHA prohibits discriminatory practices regarding the sale or rental
of housing. See 42 U.S.C. § 3604(a) (prohibiting the refusal “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 make unavailable or deny, a dwelling to any person because of race,
color, religion, sex, familial status, or national origin.”) However, the plaintiff’s
argument is not limited to his inability to visit family and friends at the apartment
complex. He also alleges that being on the barred list makes him ineligible for
tenancy, thereby denying him the opportunity to rent an apartment. Such an
allegation is precisely the conduct that is covered by the FHA. Accordingly,
TMAM’s argument in this respect fails.
TMAM also asserts that the plaintiff’s FHA claim fails to allege that the
defendants were motivated by a discriminatory animus. Section 3604 of the FHA
also provides that it is unlawful “[t]o discriminate against any person in the terms,
conditions, or privileges of sale or rental of a dwelling . . . because of race, color,
religion, sex, familial status, or national origin.” 42 U.S.C. § 3604(b). “A plaintiff
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may demonstrate a prima facie case of discrimination by showing that the
challenged practice was motivated by a discriminatory purpose or had a
discriminatory impact.” Sudduth v. Vasquez, No. 1:08CV1106, 2009 WL 211572,
at *2 (E.D. Va. Jan. 26, 2009) (citing Betsey v. Turtle Creek Assocs., 736 F.2d 983,
986 (4th Cir. 1984)). The plaintiff has alleged that he is African American. The
plaintiff’s allegations supporting discrimination on account of his race relate to a
2006 incident which involved the prior owner of the apartments. He has not
alleged facts to support his claim that the actions of TMAM or its employee were
motivated by a discriminatory purpose.

Such conclusory allegations of

discrimination, absent factual support, cannot withstand TMAM’s Motion to
Dismiss. Accordingly, the plaintiff’s Amended Complaint will be dismissed for
failure to state a claim. I will, however, grant the plaintiff leave to further amend
his complaint if he is able to provide adequate factual allegations supporting the
claim of discriminatory motivation against TMAM.
The plaintiff also references a “class action injunction” in both the
Complaint and Amended Complaint. TMAM has moved to strike the plaintiff’s
request that the matter proceed as a class action. Fourth Circuit law mandates that
a class will not be certified “where a pro se litigant will act as [a] representative of
that class.” Fowler v. Lee, 18 F. App’x 164, 165 (4th Cir. 2001) (unpublished)
(citing Oxendine v. Williams, 509 F.2d 1405, 1407 (4th Cir. 1975)).
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Pro se

plaintiffs may not pursue claims as a class action “for the obvious and sensible
reason that a pro se plaintiff is simply not equipped by reason of training or
experience to take on the rsponsiblity of litigating the claims of others.” Noah v.
AOL Time Warner Inc., 261 F. Supp. 2d 532, 537 (E.D. Va. 2003.) Since the
plaintiff is proceeding pro se, I will grant TMAM’s Motion to Strike.
IV.
For the foregoing reasons, it is ORDERED that the Motion to Strike (ECF
No. 11) and the Motion to Dismiss (ECF No. 9) are GRANTED. The plaintiff is
granted leave to file a second amended complaint, provided it is filed within 21
days from the date of this Order.

ENTER: September 14, 2017
/s/ James P. Jones
United States District Judge

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