Opinion
C. A. 3:23-4777-MGL-SVH
12-18-2023
Shasta Partee and all other occupants, Plaintiff, v. Powers Properties, Defendant.
REPORT AND RECOMMENDATION
Shiva V. Hodges, United States Magistrate Judge
Shasta Partee (“Plaintiff”), a black woman with a physically-disabled daughter and mentally-disabled son, sues the property manager of the apartment complex she and her children live in, primarily alleging she was illegally provided 30-day notice to vacate her property due to her son's disabilities. Powers Properties (“Defendant”) seeks dismissal of Plaintiff's complaint.
Plaintiff, proceeding pro se and in forma pauperis, filed this suit on September 25, 2023, stating as follows:
This is an action for injunctive relief, damages, costs, and fees, alleging a continuing pattern of discriminatory conduct in violation of The Fair Housing Act of 1968 and several other unlawful acts. As amended, 42 U.S.C. §§ 3601-19 (“FHA”). Such violations are as follows: (1) Failure to give a reasonable accommodation,(Violation of ADA, and FHA, and Rehabilitation Act) (2) Discrimination of a sale or rent due to a disability, (3) Discriminating in the Terms, Conditions, or Privileges of a Rental and (4) Interference, Coercion, and Intimidation. Also such claims
for Federal Civil Conspiracy and other unlawful acts caused by the Defendant. Plaintiff Shasta Partee, who is African American, and has a daughter who is physically disabled, and a son who is mentally disabled also asserts additional causes of action for (5) breach of contract, (6) perjury, (7) civil conspiracy to commit perjury and perjury by omission and (8) civil conspiracy to commit unlawful eviction (9) infliction of emotional distress and civil conspiracy to commit infliction of emotional distress.[ECF No. 1 at 1-2, see also ECF No. 24 at 1].
Plaintiff also refers to possible causes of action she may assert in the future. [See ECF No. 1 at 2-3].
This matter comes before the court on Defendant's motion to dismiss. [ECF No. 19]. Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised Plaintiff of the dismissal procedures and the possible consequences if she failed to respond adequately to the motion. [ECF No. 22]. The motion having been fully briefed [ECF No. 24], it is ripe for disposition. Also pending before the court are Plaintiff's motions for preliminary injunction. [ECF Nos. 4, 5].
Pursuant to 28 U.S.C. § 636(b)(1)(B), and Local Civ. Rule 73.02(B)(2)(e) (D.S.C.), the case has been assigned to the undersigned for all pretrial proceedings. Having carefully considered the parties' submissions and the record in this case, the undersigned recommends the district judge grant Defendant's motion and deny Plaintiff's motions.
I. Factual Background
Plaintiff alleges that on July 31, 2021, she leased an apartment for a year in Briar Grove, a residential complex located in Columbia, South Carolina. [ECF No. 1 at 5]. After the year lease elapsed, the lease became month-to-month. Id.
A. Plaintiff's Son's Mental Impairments
Plaintiff alleges her son has a genetic low dopamine disorder, as well as:
ADHD (mixed), Explosive Disorder, (Separation anxiety) Attachment Disorder, Emotional Regulation, and ODD. He started being diagnosed in 2019. These mental disorders has caused several actions such as inattention, violence, aggressive behavior, pacing, ang1y uncontrollable outburst, suicidal thoughts, cutting, anxiety, manic depression, paranoia, blackouts, hyperactivity, impulsivity, lack of restraint, aggression, excitability, persistent repetition of words and actions, absent-mindedness, difficulty focusing, forgetfulness, short attention span, boredom, mood swings, reduce need for sleep, loss touch of reality, low energy, low motivation, and had a 504/IEP in school. He is currently being seen for potential Bipolar Disorder at Columbia Area Mental Health outpatient, and MCH Youth Program seeking counseling and taking medication and seeking help on other regimen of medication.Id. at 1-2.
Plaintiff submits the following document, attached to her complaint, of the assessments of clinical psychologist Dr. Will Hunter (“Dr. Hunter”) in August 2021 of Plaintiff's son that concluded:
[Plaintiff's son] was referred for evaluation of ADHD and comorbid mental health issues. He described a history of inattention and hyperactivity/impulsivity in school during his early childhood and schooling, that has been reported by his parents and his teachers. As explained in depth above, a significant number of symptoms in both domains of ADHD are present and functionally impairing in school, home, and social contexts, thus meeting DSM-5 criteria for combined-type ADHD. His self-reported symptoms of both inattention and hyperactivity/impulsivity were also consistent with behavioral observations during the testing session, collateral information provided by his mother, and his performance on testing.
With regard to emotional issues, he experiences difficulty regulating emotions, expressing emotions, and coping successfully with negative emotions. As such, intense anger can be expressed and difficult to control when stress level increases or overwhelm builds. Such periods of intense emotions do not appear to be episodic, nor do they meet duration/frequency criteria for any specific disorder; however, such emotional difficulties are likely related to ADHD and psychosocial stressors, combined with poor coping. Functional impairments experienced from ADHD can be frustrating and stressful, such as when he is not able to focus as he would like and when schoolwork becomes more difficult, and added stress can contribute to irritability and anger. Additionally, ADHD can involve difficulty regulating attention, thought processing, emotions, and behavior, all of which can contribute to irritability and emotion dysregulation (difficulty adapting emotional intensity or state to a situation).
Despite difficulties that result from inattention and hyperactivity/impulsivity, [Plaintiff's son] appears to be a motivated student who has insight into his cognitive and emotional experience. He is likely to be successful with proper school attendance/participation, continued work on developing adaptive coping skills, and possible school accommodations to reduce the impairment experienced from ADHD ....
[Plaintiff's son] is encouraged to share this evaluation with his school to ensure that he receives the most appropriate classroom
accommodations to address his ADHD. Given his symptoms of inattention and distractibility that can hinder information processing and speed, [he] may benefit from taking tests in a separate environment with a limited number of people and extra time to complete the test as appropriate.
[He] may also benefit from medication to treat ADHD, and it is recommended that he engage in counseling, either through the school or HopeHealth (or otherwise) to aid in developing coping skills to improve emotion regulation, attention/focus, and interpersonal functioning.[ECF No. 1-1 at 6-10, see also id. at 11-12 (Dr. Hunter stating on April 24, 2023, that based on his assessments in August 2021, Plaintiff's son “meets the legal definition of a disability”)].
Courts generally do not consider matters outside the pleadings in ruling on a motion to dismiss. Am. Chiropractic Ass'n v. Trigon Healthcare, Inc., 367 F.3d 212, 234 (4th Cir. 2004). However, a court may consider documents outside the pleadings without converting a motion to dismiss into one for summary judgment if those documents are “integral to and explicitly relied on in the complaint” and their authenticity is unchallenged. Copeland v. Bieber, 789 F.3d 484, 490 (4th Cir. 2015). In total, Plaintiff has submitted 180 pages of evidence in conjunction with her complaint. [See ECF No. 1-1]. The court considers such documents that are integral to the complaint and whose authenticity is unchallenged including the email above.
B. Plaintiff's Son's Suicide Attempt
In June or July 2022, Plaintiff's son attempted to commit suicide by jumping off the third story balcony, after having received news of a death in the family a few months previously. [ECF No. 1 at 2, 9-10]. Plaintiff alleges her son, on that day, “began to go into a mental health crisis inside the home,” Plaintiff “called 911 and asked to send the police and EMS while discussing the mental health issues the Plaintiff's son had,” and her son “survived the fall [from the third floor] and became paranoid and manic and ran.” Id. at 10. The police were unable to locate her son. Id. Plaintiff alleges she has lived in her residence without receiving any violation notices from Defendant during her tenancy, including as to her son's suicide attempt. Id. at 2.
Plaintiff additionally alleges that because of her son's suicide attempt, Defendant's security arrived and were made aware of her son's mental health issues. [See ECF No. 1 at 13].
C. 30-Day Notice to Vacate and Request for Accommodation
On October 1, 2022, Plaintiff received a 30-day notice to vacate. Id. at 2. Plaintiff alleges that Defendant gave her a non-discriminatory reason for terminating her lease, in writing, by having a process server post it on the door and by certified mail that the tenancy had ended, and Defendant did not want to renew. Id. However, multiple staff members informed Plaintiff that she received the notice due to her son's disorderly conduct in June and July 2022. Id.
Plaintiff alleges that after she received the 30-day notice, she requested an accommodation for her son to be seen by his medical provider for a medication adjustment and informed the local office that her son was still coping with a death in the family. [ECF No. 1 at 3, 36]. Plaintiff alleges she also visited the main office twice in Florence, South Carolina, requesting accommodations for her son, and was denied. Id. Plaintiff also alleges she submitted requests by email that were ignored. Id. at 9. Plaintiff also emphasizes that she should have, and never received, “a 14 Day notice right to cure for breach of contract on the charge of disorderly conduct as the South Carolina Tenant and Landlord Act requires prior to giving a 30 day notice.” Id. at 6.
Plaintiff submits documentation discussing the reasons why she was provided the 30-day notice. First, Plaintiff submits the following letter dated November 22, 2022, from Defendant to the South Carolina Human Affairs Commission (“SCHAC”), which investigated Plaintiff's claims against Defendant:
Ms. Partee did come to the Florence office to speak with us. She did ask a few times as to why she received the 30 day notice. We stated each time that both the tenant and the landlord can serve each other with a 30 day notice to non-renew the lease and we were exercising our right to do so. Our staff has not told her that she received this letter due to her son's previous actions. Ms. Partee stated she figured she received this letter due to her son's previous actions . . . and that he has just been recently diagnosed with a mental illness. She informed us that he was receiving medications and she would be able to control him better. She did offer to get us proof of this, if we needed it, so we may stop the 30 day notice. We declined her request and informed her we would not cancel the non-renewal of her lease. Our staff both in Florence & Columbia were unaware of any disability that her son has prior to the letter for non-renewal given on 9/23/22.
Ms. Partee is claiming we failed to give her reasonable accommodations. She asked us for a 30 to 60 day extension to vacate the apartment. She stated that 30 days was not enough time. We did decline this request as we do with all our residents that have asked us for more time. We did however offer her a 14 day extension. This was done out of courtesy. We informed her that her October rent and any balance on the account must be paid in full. Then on October 31, 2022, instead of returning her keys to the local office in Columbia, she could pay the pro-rated amount for the 14 day extension. This would need to be in the amount of $548.38 and would have to be in the form of a money order or cashier's check. We did not tell her that she could post mark the payment and put the payment in the mail. Ms. Partee did not hold up her part of the 14 day extension agreement. Instead, she emailed our office a copy of the $400.00 money order and an envelope with postage on it. We responded to Ms. Partee's email that we would be filing an eviction for the termination of tenancy. This was due to her failure to pay as agreed for the 14 day extension and or returning her keys to the apartment by 10/31/22 ....
We are concerned for the safety of all our residents based on the actions of Ms. Partee's son .... Between the dates of 6/23/22 to 10/14/22, [he] has been involved with the police 6 times. He has been caught by police pointing and presenting a realistic firearm at vehicles & pedestrians. Management witnessed him jumping off a 3rd floor balcony from the apartment where he resides. There were 2 incidents of Breach of Peace in one day. In addition, there are 2 open arson investigations, with a video of evidence for one of the events, of [Plaintiff's son], along with 2 other male accomplices attempting to set the ceiling in the breezeway and vinyl siding of our building on fire.[ECF No. 1-1 at 32-33].
Plaintiff has submitted an email chain where she informs Defendant as follows:
Also I was told to pay Florence office by the date either post marked on in the mailbox in which I did and you said you would give me (up to) 14 days because you refused to let me pay online and we have never been able to pay at the Columbia office because if that was the case I would have always paid at the Columbia office and not incurred fees paying online, but I guess when I did as instructed to either send the payment or put it in the Dropbox it's different for my family. For the record we never had an agreement, we only had you denying my accommodations and telling me my family had to leave. Also if I was paying current rent that begins on the first not the thirty first but yet you asked me to pay a day prior, but again I guess it's only done with certain people. I'll see you in court.[ECF No. 1-1 at 30].
Although Plaintiff denies the factual bases underpinning the claims against her son related to the above incidents, she does not appear to deny his repeated involvement with the police during this time. [See ECF No. 1 at 2223. see also ECF No. 24 at 9-12].
Plaintiff has provided the following email she sent to Defendant on October 6, 2022:
Upon speaking with the Columbia Office I was told that you are ending my tenancy due to my son being loud, arguing, disturbing tenants and tenant complaints. I can understand my son can be a handful, but like I have explained to you all before that he has a mental condition. He has ADHD and Explosive Disorder. After a death in the family to someone really close It became worse. I have NEVER received a noise complaint paperwork or warning . . . . I will be contacting Fair Housing or A housing division to report this. I want a reasonable accommodation for my son to be seen by his medical provider. Let me know because this Is not right and you know It.Id. at 29.
Additionally, Plaintiff has submitted the following email dated December 13, 2022, from Defendant to SCHAC, states “[t]he decision to nonrenew” the lease:
was made due to our concerns for all of our residents and their safety. Her son has put them at risk several times. His behavior was disorderly and disturbed the quiet enjoyment of the entire community. I have attached a copy of the lease and the rules and regulations signed by Ms. Partee. I have underlined the rules that were violated on both documents. I have also attached a most recent copy of a non-renewal sent to another resident in different city. The decision was made to non-renew his lease due to his disorderly conduct.Id. at 116.
D. Housing Complaint
Plaintiff alleges that in some point in October 2022 she filed a fair housing complaint (“housing complaint”) against Defendant that was investigated by SCHAC. [ECF No. 1 at 17-18, see also id. at 43 (Plaintiff arguing that “[t]he undisputed facts in this case establish that the adverse action was due to the Plaintiffs denying the reasonable accommodation and the Plaintiff stating and filing with Human Affairs a complaint. Once this occurred the Plaintiff was subjected to paying rent early, eviction proceedings, delays on maintenance, denial of safety checks and son's harassment.”)].
Plaintiff alleges this harassment involved Defendant's security contacting the police about Plaintiff's son concerning what security perceived to be as an altercation between the son and his girlfriend and security started confusing Plaintiff's son with other black males in the community with locs in their hair. [ECF No. 1 at 12].
Plaintiff states that Defendant thereafter retaliated against her by removing her ability to pay online and by placing three different Writs of Ejectment on her door, directing her to vacate within 30 days, the 30-day notice discussed above, and directing her vacate within 7 days and then within 24 hours. Id. at 13, 32.Plaintiff also alleges Defendant changed “the terms changed the terms of the contract,” eliminating the grace period, and requiring her rent to be due on the first of the month. Id. at 35. Plaintiff alleges that Defendant has also retaliated against her by not performing safety sprinkler checks in her home in July 2023 and delaying fixing her air conditioning in July, August, and September 2023. [ECF No. 1 at 15, ECF No. 1-1 at 67, 74-75].
It appears that each of these Writs of Ejectment have been rescinded, but as argued by Plaintiff, they have left “another blemish on Plaintiff's public record.” [ECF No. 1 at 20].
Plaintiff references what appears to be multiple judicial proceedings between her and Defendant that have occurred. Plaintiff alleges:
On or around October 7, 2023 the harassment, intimidation, coercion, and interference began. After the Plaintiff stated she was going to file a Fair Housing Complaint a few days prior; The Defendants filed for eviction for non-payment of rent despite the Plaintiff's rent being paid online days before. The Plaintiff chose to attend court where proof was given and the case was dismissed.[ECF No. 1 at 36-37].
Plaintiff alleges that during the SCHAC investigation related to her housing, investigator Carlos Diaz (“Diaz”) “knowingly[] and negligently omitted” evidence related to Plaintiff's son's disability, conspiring with Defendant, resulting in a determination that Plaintiff's son was found not disabled as defined by the American with Disabilities Act (“ADA”). Id. at 18, see also id. at 50 (“Unfortunately the investigator in charge of the investigation decided to conspire with the Defendants by accepting knowingly false statements during the investigation, negligently and grossly negligent omitting pertinent mental disability evidence that was relevant to the complaint, and failing to properly investigate the claim which caused harm.”).Plaintiff states also that a SCHAC attorney, Marvin Caldwell Jr. (“Caldwell”), was involved and refused to fix the errors that occurred. Id.
Plaintiff also alleges repeatedly that Defendant provided false information about her in judicial proceedings. [See, e.g., ECF No. 1 at 14 (“The Defendants filed another eviction on November 2, 2022 stating that the whole $548 was not paid and in court committed perjury by stating they had not received even the $400.00 check.”) Id. at 44-45].
Finally, Plaintiff challenges evidence submitted against her during the SCHAC investigation. Id. at 22-24.
Plaintiff also includes allegations concerning problems experienced by other tenants known to her or that she discovered through Freedom of Information Act (“FOIA”) requests. [See, e.g., ECF No. 1 at 38-39].
Plaintiff and her family are still in the apartment but, as she states, “[e]veryday she anticipates another discriminatory act of eviction.” Id. at 5455. Plaintiff seeks a declaratory judgment that Defendant's actions were illegal; an injunction restraining Defendant from engaging in such unlaw conduct; removal of evictions from her records; an order banning Defendant from providing bad references for her; damages in the amount of $375,000 plus rent payments from October 2022 until the conclusion of this case; order allowing Plaintiff to sue Diaz and Caldwell; and an order updating her SCHAC records. Id. at 56-57.
II. Discussion
A. Standard on Motion to Dismiss
A motion to dismiss under Rule 12(b)(6) examines the legal sufficiency of the facts alleged on the face of the plaintiff's complaint. Edwards v. City of Goldsboro, 178 F.3d 231, 243-44 (4th Cir. 1999). To survive a Rule 12(b)(6) motion, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The court is “not required to accept as true the legal conclusions set forth in a plaintiff's complaint.” Edwards, 178 F.3d at 244. Indeed, “[t]he presence of a few conclusory legal terms does not insulate a complaint from dismissal under Rule 12(b)(6) when the facts alleged in the complaint cannot support the legal conclusion.” Young v. City of Mount Ranier, 238 F.3d 567, 577 (4th Cir. 2001).
Pro se complaints are held to a less stringent standard than those drafted by attorneys. Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). A federal court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case. Erickson v. Pardus, 551 U.S. 89, 94 (2007). When a federal court is evaluating a pro se complaint, the plaintiff's allegations are assumed to be true. Fine v. City of N.Y., 529 F.2d 70, 74 (2d Cir. 1975). The mandated liberal construction afforded to pro se pleadings means that if the court can reasonably read the pleadings to state a valid claim on which the plaintiff could prevail, it should do so. Nevertheless, the requirement of liberal construction does not mean the court can ignore a clear failure in the pleading to allege facts that set forth a claim currently cognizable in a federal district court. Weller v. Dep't of Soc. Servs., 901 F.2d 387, 390-91 (4th Cir. 1990).
B. Analysis
1. FHA Claims
Plaintiff's primary claim is that Defendant denied her housing and retaliated against her, based on her son's disability. As relevant here, the FHA makes it unlawful to “make unavailable or deny . . . a dwelling to any buyer or renter because of a handicap,” 42 U.S.C. § 3604(f)(1), or to “discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling . . . because of a handicap.” 42 U.S.C. § 3604(f)(2). The statute further clarifies that for the purposes of this subsection, discrimination includes: “a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling.” 42 U.S.C. § 3604(f)(3)(B). A handicap is “a physical or mental impairment which substantially limits one or more of such person's major life activities.” 42 U.S.C. § 3602(h).
a. FHA Failure to Accommodate Claim
As stated by the Fourth Circuit, “[a] party raising an accommodation claim under the [Fair Housing Amendments Act] bears the burden of establishing that the proposed accommodation is ‘(1) reasonable and (2) necessary (3) to afford handicapped persons equal opportunity to use and enjoy housing.'” Scoggins v. Lee's Crossing Homeowners Ass'n, 718 F.3d 262, 272 (4th Cir. 2013) (citing Bryant Woods Inn, Inc. v. Howard Cnty., Md., 124 F.3d 597, 603-04 (4th Cir. 1997)).
Other circuits have described the relevant failure to accommodate test as having four or five elements. See Olsen v. Stark Homes, Inc., 759 F.3d 140, 156 (2d Cir. 2014) (identifying the five elements as: “(1) that the plaintiff or a person who would live with the plaintiff had a handicap within the meaning of § 3602(h); (2) that the defendant knew or reasonably should have been expected to know of the handicap; (3) that the accommodation was likely necessary to afford the handicapped person an equal opportunity to use and enjoy the dwelling; (4) that the accommodation requested was reasonable; and (5) that the defendant refused to make the requested accommodation”).
Plaintiff has submitted a document in conjunction with her complaint stating that a licensed psychologist diagnosed her son in August 2021 with ADHD and thereafter determined, as of April 24, 2023, his condition substantially limits one or more of his major life activities. [See ECF No. 1-1 at 6-12]. Defendant does not appear to dispute that Plaintiff has alleged her son has a qualifying disability under the FHA. Defendant argues, however, that her claim fails because she has failed to allege it knew or should have known about her son's disabilities.
Although Plaintiff has submitted an email chain indicating that Defendant's security guard may have known about the son's mental illness prior to Plaintiff's receiving the 30-day notice [ECF No. 1-1 at 27], even taking this allegation in light most favorable to her, the email chain does not indicate that Defendant-in contrast to the security guard-or any decisionmaker related to the issuance of the 30-day notice, was aware of her son's mental illness or, more importantly, that he had a mental impairment that substantially limited one or more of his major life activities. See 42 U.S.C. § 3602(h); cf. Schneider v. Giant of Maryland, LLC, 389 Fed.Appx. 263, 269 (4th Cir. 2010) (“there are situations in alleged disability discrimination cases where an employer clearly did not know and could not have known of an employee's disability”) (citation omitted)).
This case stands in contrast to those where, for example, a disabled person's medical records were provided, the accommodation requested concerned a service dog, or the person's specific disability or disabilities were obvious or clearly communicated. See, e.g., United States v. Hialeah Hous. Auth., 418 Fed.Appx. 872, 876 (11th Cir. 2011) (“[F]or a demand to be specific enough to trigger the duty to provide a reasonable accommodation, the defendant ‘must have enough information to know of both the disability and desire for an accommodation, or circumstances must at least be sufficient to cause a reasonable [landlord] to make appropriate inquiries about the possible need for an accommodation.'” (citing Colwell v. Rite Aid Corp., 602 F.3d 495, 506 (3d Cir. 2010)).
Likewise, Plaintiff's October 6, 2022 email referencing her son's ADHD and explosive disorder, but also a family member's death, and requesting a “reasonable accommodation for my son to see his medical provider” [ECF No. 1-1 at 29] is inadequate where Plaintiff indicated circumstances unrelated to her son's mental impairments were contributing to the alleged disruptive behavior and where, as discussed more below, her demand for accommodation was vague. See, e.g., Colon-Jimenez v. GR Mgmt. Corp., 218 Fed.Appx. 2, 3 (1st Cir. 2007) (“It is appellants' responsibility to put appellees on notice by making a sufficiently direct and specific request for special accommodations.”) (citation omitted)); Schwarz v. City of Treasure Island, 544 F.3d 1201, 1219 (11th Cir. 2008) (holding a defendant “cannot be liable for refusing to grant a reasonable and necessary accommodation if [it] never knew the accommodation was in fact necessary”) (citation omitted)).
Although Plaintiff argues otherwise, for the reasons stated above, the court does not find that her October 6, 2022 email triggered a requirement for a landlord to engage in an “interactive process.” Additionally, the Fourth Circuit has never addressed such a requirement, and other Circuits have rejected this reading of the FHA. See Phillips v. Acacia on the Green Condo. Ass'n, Inc., No. 20-4182, 2022 WL 1692948, at *5 (6th Cir. May 26, 2022) (“There is no such language in the Fair Housing Act or in the relevant sections of the Department of Housing and Urban Development's implementing regulations that would impose such a duty on landlords and tenants.”) (citing Groner v. Golden Gate Gardens Apartments, 250 F.3d 1039, 1047 (6th Cir. 2001); Lapid-Laurel, L.L.C. v. Zoning Bd. of Adjustment of Twp. of Scotch Plains, 284 F.3d 442, 456 (3d Cir. 2002); Howard v. HMK Holdings, LLC, 988 F.3d 1185, 1192-94 (9th Cir. 2021); but see Bhogaita v. Altamonte Heights Condo. Ass'n, Inc., 765 F.3d 1277, 1287 (11th Cir. 2014); Jankowski Lee & Assocs. v. Cisneros, 91 F.3d 891, 895 (7th Cir. 1996). The court also rejects Plaintiff's argument as to any “standalone” liability for failure to engage in an interactive process with a disabled tenant. See, e.g., Howard v. HMK Holdings, LLC, 988 F.3d 1185, 1192-94 (9th Cir. 2021) (surveying caselaw and holding no “standalone” liability exists).
The court is also guided by the Fourth Circuit's address of a somewhat similar complaint in Thomas v. The Salvation Army S. Territory, 841 F.3d 632 (4th Cir. 2016). In that case, a homeless person sued the Salvation Army under the FHA for denying her shelter because of her mental illness. Id. at 639. The court held that the plaintiff did “not draw a sufficient nexus of causation between whatever mental illness she may have and the defendants' actions”:
To state a claim under the FHA, Thomas must show that the defendants denied her housing “because of” her handicap. 42 U.S.C. § 3604(f)(1) .... the complaint does not make a plausible allegation that the Salvation Army unlawfully denied Thomas shelter “because of” a mental disability. Even when construed liberally and with all reasonable inferences made in Thomas's favor, De'Lonta, 330 F.3d at 633, this is not a “claim to relief that is plausible on its face,” Twombly, 550 U.S. at 570, 127 S.Ct. 1955.
The communications between the Salvation Army and Thomas indicate that the Salvation Army had legitimate reasons to be wary of admitting Thomas and sought reasonable reassurance that Thomas would not cause problems as a resident. The most detailed explanation of the Salvation Army's concerns was in the September 12, 2012 email sent by the Area Commander for the Salvation Army summarizing his investigation of Thomas's situation: “Your actions during your time at the shelter exhibited disrespect and hostility toward the staff that was endeavoring to
help you, therefore you were asked to leave the facility.” J.A. 21. The email also offered shelter if Thomas would “receive a mental health evaluation and stabilization services.” J.A. 21. It is not reasonable to read this email as evidence that the Salvation Army refused to admit Thomas because of a mental disability. Rather, it is clear that the Salvation Army's decision to deny Thomas access was an effort to exercise prudence and to ensure that, with the support of appropriate medical evidence, any mental condition of hers was under control. This is consistent with the only other instance in Thomas's complaint of a Salvation Army staff member referencing her mental illness. In denying her access to the shelter, the staff member suggested Thomas would be readmitted if she obtained a mental health evaluation. J.A. 19.Id. at 639-40.
Here, too, the communications between Plaintiff and Defendant fail to indicate that Defendant issued the 30-day notice because of the son's disabilities-disabilities Plaintiff has failed to allege Defendant was aware of and that Defendant never referenced-and, instead, communications indicate that the 30-day notice was issued because of the son's behavior, as found in Thomas.
As noted by Defendant, despite the other provisions of 42 U.S.C. § 3604 discussed above, a landlord may reject an individual with a disability “whose tenancy would constitute a direct threat to the health or safety of other individuals or whose tenancy would result in substantial physical damage to the property of others.” 42 U.S.C. § 3604(f)(9). The health and safety of other persons “are relevant factors in determining whether a person or entity violated the FHAA.” Scoggins, 718 F.3d at 272; see also Thomas, 841 F.3d at 641 (dismissing complaint where the plaintiff alleged hostile actions that may not have been “inconsistent” with the plaintiff's “mental health problems” and noting “Congress anticipated this very problem and repeatedly declined to extend statutory protection to individuals who present a threat to public health or the safety of others”) (citing 42 U.S.C. § 3604(f)(9)).
Although the direct threat exception in 42 U.S.C. § 3604(f)(9) is an affirmative defense, “affirmative defenses can be considered in resolving Rule 12(b)(6) motions when the facts surrounding the defense are clear from the complaint.” Megaro v. McCollum, 66 F.4th 151, 157 (4th Cir. 2023).
Although Plaintiff argues that Defendant cannot rely on the “direct threat theory” where that threat “could be eliminated by reasonable accommodation” [ECF No. 24 at 9], Plaintiff has failed to allege that the referenced threat would have been eliminated by her requested accommodations. On this topic, Defendant argues as follows:
Plaintiff does not explain how additional doctor's appointments, therapy and/or medication would necessarily address the disorderly behavior exhibited by her son or how long that might take. Rather, it appears that she simply asked for more time for doctor's appointments and other treatment. The following language from the Complaint is illustrative of the highly speculative nature of Plaintiff's proposed accommodations and the impact they might have had on her son's behavior: “The Plaintiff then visited the main office in Florence South Carolina and asked again for 30 to 60 days for her son to be seen by his physician and receive a regimen of medication or get the medication adjusted whichever was applicable. Possibly have him seen for even more symptoms that he may have been
experiencing in relation to Bipolar which was on the father's side of the family.”[ECF No. 19 at 8 (citing ECF No. 1 at 7)].
Plaintiff has submitted a document from her son's psychologist stating “[i]t is my professional position that [the son] be granted the requested accommodation in order to receive needed medical services, particularly given that such medication has been successful in the past when he is on the right dosage and taking it consistently.” [ECF No. 1-1 at 11-12]. However, this recommendation was given on April 24, 2023, and Plaintiff has not alleged that at the time she asked for more time from Defendant, the accommodation would directly ameliorate the effect of her son's mental impairments. See Bryant Woods, 124 F.3d at 604 (“if the proposed accommodation provides no direct amelioration of a disability's effect, it cannot be said to be ‘necessary'”).
For these reasons, the undersigned recommends the district judge dismiss Plaintiff's FHA failure-to-accommodate claim.
Plaintiff has also failed to state a separate claim for discrimination in the terms, conditions, or privileges of a rental under 42 U.S.C. § 3604(f)(2) where she alleges Defendant “changed the terms and conditions of the contract by stating the defendant had to pay prior to rent being due by threatening immediate eviction if it was not done” due to her son's disability. [ECF No. 1 at 34]. As stated, the communications between Plaintiff and Defendant fail to indicate that Defendant took any action, including changing any terms or conditions of her housing contract, because of her son's disabilities. See, e.g., Williams v. 5300 Columbia Pike Corp., 103 F.3d 122 (4th Cir. 1996) (“Unlawful discrimination under the Fair Housing Act may be cognizable if either a discriminatory purpose or a disparate impact is demonstrated.”).
b. FHA Retaliation Claim
The FHA also prohibits retaliation for certain protected activities and the statute provides that:
It shall be 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 . . . any right granted or protected by section 3603, 3604, 3605, or 3606 of this title.42 U.S.C. § 3617. The protected activities covered by this provision include requesting a reasonable accommodation for a disability. See 42 U.S.C. § 3604(f). To prove a claim for retaliation under the FHA, a plaintiff must establish that: (1) the plaintiff was “engaged in protected activity;” (2) the Defendant “was aware of that activity;” (3) the defendant “took adverse action against the plaintiff;” “and (4) a causal connection existed between the protected activity and the asserted adverse action.” Hall v. Greystar Mgmt. Servs., L.P., 637 Fed.Appx. 93, 98 (4th Cir. 2016).
Plaintiff states that because she filed a housing complaint, “Plaintiff was subjected to paying rent early, eviction proceedings, delays on maintenance, denial of safety checks and son's harassment,” as well as not being allowed to pay her rent online. [ECF No. 1 at 43, ECF No. 24 at 17]. Defendant fails to address all these allegations, but states as follows:
Even taking all inferences in the light most favorable to the Plaintiff, the failure to check Plaintiff's sprinklers does not appear to be coercive or intimidating in nature. Similarly, a delay in fixing her HVAC for several days does not arise to the level of coercion or intimidation as contemplated by the statute.[ECF No. 19 at 10].
As discussed above, Plaintiff has failed to allege that she engaged in a protected activity by requesting a reasonable accommodation for her son. See, e.g., Philippeaux v. Apartment Inv. & Mgmt. Co., 598 Fed.Appx. 640, 645 (11th Cir. 2015) (“Because [the plaintiff] fails to allege that he engaged in statutorily protected activity, he failed to state a claim for retaliation”). However, she has alleged that she filed a complaint against Defendant and has submitted documentation that the relevant agency received her complaint on October 31, 2022. [See ECF No. 24-6 at 2]. This is sufficient to show Plaintiff engaged in a protected activity. See, e.g., Hall, 637 Fed.Appx. at 98.
However, even construing Plaintiff's complaint liberally, she has failed to allege an adverse action, as defined by the FHA, taken by Defendant following her protected activity. First, the eviction proceedings began prior to her filing any complaint and therefore cannot form a basis on which to infer that the proceedings were in retaliation for any action she took. See Thomas-Tupper v. Cath. Charities, No. 22-689, 2023 WL 4044101, at *2 (2d Cir. June 16, 2023) (“The district court found that Plaintiff failed to demonstrate a prima facie case of retaliation because she had not offered evidence that any adverse actions-namely, the eviction proceedings and eventual eviction- were causally connected to any protected activity. We agree. Defendants sent Plaintiff two notices informing her that Kellett's residence violated her lease, and they served a thirty-day notice of eviction all before Plaintiff submitted a medical form requesting a live-in aide. And Plaintiff did not request that Kellett be the one to serve as her live-in aide until after the eviction proceedings had already begun.”). Likewise, Plaintiff states she was forced to pay rent early, but documentation she submitted indicates that this, too, occurred prior to her filing her housing complaint. [See ECF No. 1 at 13-14, 37, ECF No. 1-1 at 30-31].
In Clark County School Dist. v. Breeden, 532 U.S. 268 (2001), the Supreme Court held that because the defendant was contemplating taking an adverse action against the plaintiff before the plaintiff engaged in protected activity, the fact that the defendant took the adverse action after the plaintiff engaged in protected activity was not evidence that the adverse action was retaliatory. The Court said, “proceeding along lines previously contemplated, though not yet definitively determined, is no evidence whatever of causality.” Id. at 272; see also Hollowell v. Kaiser Found. Health Plan of the Nw., 705 Fed.Appx. 501, 504 (9th Cir. 2017) (“reliance on temporal proximity to show causation fails because one of the adverse actions that [plaintiff] alleges was the next step in a continuing course of action that began before he filed the internal complaint”); Kenfield v. Colorado Dept. of Public Health & Env't, 557 Fed.Appx. 728, 733 (10th Cir. 2014) (“[C]ontinuance of the alleged hostility . . . cannot be retaliatory as the plaintiff herself alleges the hostility existed prior to the protected activities. The protected activity therefore could not have caused the hostility.”).
Additionally, an isolated incident of forcing Plaintiff to pay her rent early, her not being able to pay online for a limited period, and her son's harassment, as found in the complaint, do not appear to be adverse actions, as defined by the FHA. See, e.g., Rhodes v. Parklane Apartments, LLC, C/A No. 8:19-01463-PX, 2019 WL 7293398, at *4 (D. Md. Dec. 27, 2019) (“Raising a tenant's rent-particularly to the point where the tenant must move-may constitute a retaliatory adverse action that gives rise to relief”). As noted by the Seventh Circuit as to FHA adverse actions, “[i]nterference is more than a quarrel among neighbors or an isolated act of discrimination but rather is a pattern of harassment, invidiously motivated.” Bloch v. Frischholz, 587 F.3d 771, 783 (7th Cir. 2009) (citation omitted)). Plaintiff has failed to allege such actions here.
As to Plaintiff's allegations that in 2023, roughly 9 months after she filed her housing complaint, Defendant failed to check her sprinkler system or correctly fix her air conditioning, these allegations are too remote in time to be causally related to her filing her complaint. See, e.g., Hall, 637 Fed.Appx. at 99 (“In evaluating a retaliation claim, however, a court will not infer a causal link based on temporal proximity alone unless the adverse action occurred “very close” to, or “shortly after, the defendant became aware of the protected activity.”) (citations omitted)).
Accordingly, the undersigned recommends the district judge grant Defendant's motion to dismiss as to Plaintiff's FHA retaliation claim.
For the same reasons as stated above, the court rejects Plaintiff's allegations, made in opposition to Defendant's motion to dismiss, that Defendant retaliated against her by failing to reimburse her for a hotel room when her air condition was out and by failing to properly clean around her apartment. [ECF No. 24 at 21].
2. State-Law Claims
In addition to her FHA claim, Plaintiff has also asserted claims arising under South Carolina law for breach of contract, perjury, civil conspiracy, and intentional infliction of emotional distress (“IIED”).
a. Breach of Contract
Plaintiff has failed to state a claim for breach of contract where she has failed to carry her burden of establishing the existence and terms of the contract, defendant's breach of one or more of the contractual terms, and damages resulting from the breach. See Taylor v. Cummins Atl., Inc., 852 F.Supp. 1279, 1286 (D.S.C. 1994) (citing Fuller v. E. Fire & Cas. Ins. Co., 124 S.E.2d 602, 610 (S.C. 1962)). Plaintiff alleges only that Defendant breached her housing contract by requiring her to pay rent prior to the first of the month after she had received a 30-day notice to vacate, seemingly in conjunction with a 14-day extension to vacate. [See ECF No. 43 at 1]. This is insufficient to state a claim for breach of contract.
Plaintiff's claim for perjury fails where a criminal perjury statute does not give rise to a private cause of action. See Lopez v. Robinson, 914 F.2d 486, 494 (4th Cir. 1990) (“No citizen has an enforceable right to institute a criminal prosecution.”); Brown v. United States, C/A No. 5:19-154-FL, 2019 WL 3753193, at *6 (E.D. N.C. May 10, 2019), report and recommendation adopted, 2019 WL 3783271 (E.D. N.C. Aug. 12, 2019) (recognizing that the criminal statute for perjury does not give rise to a private cause of action).
b. Civil Conspiracy
“[A] plaintiff asserting a civil conspiracy claim must establish (1) the combination or agreement of two or more persons, (2) to commit an unlawful act or a lawful act by unlawful means, (3) together with the commission of an overt act in furtherance of the agreement, and (4) damages proximately resulting to the plaintiff.” Paradis v. Charleston County School District, 861 S.E.2d 774, 780 (S.C. 2021).
Plaintiff alleges that Defendant and SCHAC employees Diaz and Caldwell conspired to violate her rights during the SCHAC investigation, leading to the judicial decision that Defendant had not violated the FHA. [ECF No. 1 at 49; see also id. at 50 (“Unfortunately the investigator in charge of the investigation decided to conspire with the Defendants by accepting knowingly false statements during the investigation, negligently and grossly negligent omitting pertinent mental disability evidence that was relevant to the complaint, and failing to properly investigate the claim which caused harm.”)].
Plaintiff's civil conspiracy claim fails where she fails to allege any facts in support of an agreement between any specific person related to Defendant and either Diaz or Caldwell. See, e.g., Bass v. E.I. DuPont de Nemours & Co., 324 F.3d 761, 766 (4th Cir. 2003) (“As for Bass' state law conspiracy claims, they also fail because Bass has done no more than assert that the EEOC and DuPont conspired together; the facts that she has alleged do not give rise to a reasonable inference of conspiracy nor do they describe an injury to one of her legally protected interests. Accordingly, the district court's grant of Rule 12(b)(6) dismissal was proper.”).
c. IIED
To recover for intentional infliction of emotional distress, a plaintiff must establish the following elements:
(1) the defendant intentionally or recklessly inflicted severe emotional distress or was certain or substantially certain that such distress would result from his conduct;
(2) the conduct was so “extreme and outrageous” as to exceed “all possible bounds of decency” and must be regarded as “atrocious, and utterly intolerable in a civilized community”;
(3) the actions of the defendant caused the plaintiff's emotional distress; and
(4) the emotional distress suffered by the plaintiff was “severe” so that “no reasonable man could be expected to endure it.”Ford v. Hutson, 276 S.E.2d 776, 778 (S.C. 1981) (quoting Vicnire v. Ford Motor Credit Co., 401 A.2d 148 (Me. 1979)). “[I]t is for the Court's determination whether the defendant's conduct may be considered so extreme and outrageous as to permit recovery, and only where reasonable minds might differ is the question one for the jury.” Todd v. South Carolina Farm Bureau Mutual Ins., 321 S.E.2d 602, 609 (S.C. Ct. App. 1984), reversed in part on other grounds 336 S.E.2d 472 (S.C. 1985); see also Barber v. Whirlpool Corp., 34 F.3d 1268, 1276 (4th Cir. 1994) (“It is the court's responsibility to first determine as a matter of law whether or not the conduct was outrageous before submitting that question to the jury.”).
Plaintiff alleges the same conduct in support of this claim as discussed above as to her FHA claims. [See ECF No. 1 at 52-53]. However, Plaintiff has failed allege Defendant's “conduct was so extreme and outrageous as to exceed all possible bounds of decency and must be regarded as atrocious, and utterly intolerable in a civilized community.” Ford, 276 S.E.2d at 778 (citation omitted).
Accordingly, and in sum, the undersigned recommends the district judge dismiss Plaintiff's state-law claims.
For the same reasons stated above, Plaintiff's claim for conspiracy to commit IIED fails.
3. Plaintiff's Motions for Preliminary Injunction
Plaintiff has also filed motions for a preliminary injunction. [See ECF No. 4, 5]. To obtain a preliminary injunction, the plaintiff must demonstrate “(1) that he is likely to succeed on the merits; (2) that he is likely to suffer irreparable harm in the absence of preliminary relief; (3) that the balance of equities tips in his favor; and (4) that an injunction is in the public interest.” Winter v. Natural Resources Defense Council., Inc., 555 U.S. 7 (2008). As discussed above, Plaintiff has not shown she is likely to succeed on the merits. Accordingly, the undersigned recommends the district judge deny Plaintiff's request for injunctive relief.
III. Conclusion and Recommendation
For the foregoing reasons, the undersigned recommends the district judge deny Plaintiff's motions for preliminary injunction [ECF Nos. 4, 5] and grant Defendant's motion to dismiss. [ECF No. 19].
To the extent Plaintiff is trying to assert claims on behalf of others, a pro se party lacks standing to assert claims on behalf of others. Laird v. Tatum, 408 U.S. 1, 14 n.7 (1972); see also Valley Force Christian Coll. v. Americans United for Separation of Church & State, 454 U.S. 464, 482 (1982); Myers v. Loudoun Cnty. Pub. Sch., 418 F.3d 395, 400 (4th Cir. 2005) (“An individual unquestionably has the right to litigate his own claims in federal court .... The right to litigate for oneself, however, does not create a coordinate right to litigate for others.”).
IT IS SO RECOMMENDED.
The parties are directed to note the important information in the attached “Notice of Right to File Objections to Report and Recommendation.”
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
901 Richland Street
Columbia, South Carolina 29201
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).