Opinion
Case No.3:19-CV-00850-AC
02-16-2021
RAYMOND MAXWELL UPCHURCH, Plaintiff, v. MULTNOMAH UNIVERSITY and JAKE COBURN, and individual, Defendants.
FINDINGS AND RECOMMENDATION :
Introduction
Plaintiff Raymond Maxwell Upchurch ("Upchurch") sues Defendants Multnomah University ("MU") and Jake Coburn ("Coburn") for racial discrimination, alleging a violation of 42 U.S.C. § 2000d against MU for disability discrimination; alleging a violation of 29 U.S.C. § 794 and for racial discrimination in selling, renting, or leasing real property against MU; and alleging a violation of OR. REV. STAT. § 659A.421(2)(c) against Coburn as an individual. Coburn moves to dismiss Upchurch's allegations against him with prejudice. Coburn's Rule 12(b)(6) Motion to Dismiss (Def.'s Mot., ECF No. 45 ("Mot.")) should be GRANTED, with leave to amend, because Upchurch fails to allege he and Coburn lived in anything more than a shared-living arrangement or had a contractual connection under the Fair Housing Act ("FHA").
The court finds disposition of this motion appropriate without oral argument. LR 7-1(d)(1).
Factual Background
In August 2016, Upchurch, an African American, started college at MU, a school he selected because it claimed to provide "a diverse community that equips students to love Christ and serve their neighbors through their lives and work," and because at MU, he could fulfill his dream of playing college basketball. (Third Amended Complaint, ECF No. 43 ("Am. Compl."), at ¶¶ 8-9, 78.) MU "was and is a domestic non-profit corporation, formed in the state of Oregon[.]" (Id. at ¶ 5.) Coburn was an agent and employee of MU. (Id. at ¶ 6.) Sometime during Upchurch's time at MU, he worked for Coburn in MU's athletic department. (Id. at ¶ 50.)
Upchurch first faced challenges at MU because of the offensive conduct of his basketball coach, Curt Bickley ("Bickley"). (Id. at ¶ 10.) In June 2017, Bickley routinely compared Upchurch and his teammates to "slaves" bound by their scholarships, and routinely threatened to revoke those scholarships. (Id. at ¶¶ 11-12.) After Upchurch sat during the National Anthem before a January 2018 game, Bickley wrote slogans on the whiteboard in the locker room such as "good at bringing drama," "ungrateful," "soft," "spoiled," and "broken trust," and later red-shirted Upchurch. (Id. at ¶¶ 13-17.)
Upchurch's experience at MU worsened. In April 2018, MU staff members encouraged Upchurch to apply for the Student Government Association's "Intercultural Inclusion Chair," which he accepted. (Id. at ¶ 18.) However, he asserts MU did not adequately train him, equip him for success, or supply him with mentorship and guidance for the position. (Id. at ¶ 19.)
In November 2018, Upchurch organized and executed MU's "Mosaic Week," a week of programming for which Upchurch participated in the theming, development, and execution of the agenda; helped to set-up rooms, secured speakers and sponsors, and attended every event and devotional. (Id. at ¶¶ 20-21.) Upchurch's Mosaic Week experience, however, led to deleterious personal consequences for him: "pressure" that caused him to "emotionally crash" into a "mental health crisis" caused by "significant mental and emotional strain from the racial trauma and weight of the issues" discussed at the event; and afterward, the "'guilt,' 'shame,' and conflict that MU's white 'progressive' students, faculty and attendants experienced following the Mosaic Week" that "were laid at Plaintiff's feet as feedback." (Id. at ¶¶ 22-24.)
That same month, someone "anonymously" reported Upchurch for having alcohol in his room. (Id. at ¶ 25.) In response, "MU staff marched Plaintiff to his room, collected the contraband and placed it in a conspicuous package," and proceeded to "perp walk" Upchurch across campus with that package. (Id. at ¶ 27.) This incident, combined with his "Mosaic Week" experience, "stoked Plaintiffs 'social anxiety.'" (Id. at ¶ 44.)
In December 2018, MU "mandated" that Upchurch attend counseling sessions with its Counseling Center and select a school employee as a mentor, as sanctions for the alcohol incident. (Id. at ¶¶ 35-37, 50.) Upchurch chose Coburn, an MU employee whom Upchurch knew and trusted through working for him in MU's athletic department. (Id. at ¶ 50.) In early January 2019, Upchurch discovered someone had vandalized his room during Christmas Break. (Id. at ¶ 45.) The incident caused him to become violently ill, suffering abdominal pains, vomiting, loss of appetite, and difficulty concentrating. (Id. at ¶ 47.) As a result, Upchurch made multiple hospital visits and missed time from school. (Id.) Upchurch later sought to move off-campus for his health, safety, and well-being, and his therapist recommended he do so to minimize his "symptoms." (Id. at ¶¶ 47, 51.) MU initially denied Upchurch's request, but ultimately allowed him to move off-campus after his parents met with MU's Dean of Students and several faculty members. (Id. at ¶¶ 52-53.)
MU had access to Upchurch's room and the authority to decide whether Upchurch moved off-campus. The court infers from these facts that Upchurch was living in MU on-campus housing.
Upchurch chose to move in with Coburn, his school employee mentor, seeking a "safe haven to rest, heal and complete his education." (Id. at ¶ 56.) He paid Coburn $600 in rent. (Id.) Shortly after Upchurch moved in, however, Coburn "bombarded Plaintiff and his friends with racist and sexist remarks." (Id. at ¶¶ 57-59.) Coburn "provid[ed] and allow[ed] alcohol, drugs and opposite sex interactions that were contrary to MU policy" and "used intimidation, control, substances, and the staff/student power differential to secure [Plaintiff's] silence." (Id. at ¶¶ 60-61.)
On February 13, 2019, Upchurch called his father in a panic and begged him to "Get me out of here!" (Id. at ¶ 62.) Though his father initially insisted he remain at MU to complete the semester and maintain his academic standing, Upchurch's counselor urged his father to remove him from the MU environment for his son's "mental, emotional and psychological well-being." (Id. at ¶¶ 63-64.) The counselor advised Upchurch would need "extensive therapy to process and overcome his experiences at MU." (Id. at ¶ 65.) The next day, Upchurch's father allowed him to leave MU. (Id. at ¶ 66.)
Legal Standard
Under Rule 12(b)(6), a party may move to dismiss a complaint for "failure to state a claim upon which relief can be granted." FED. R. CIV. P. 12(b)(6). A court may grant a motion to dismiss "'based on the lack of a cognizable legal theory or the absence of sufficient facts alleged'" under a cognizable legal theory. UMG Recordings, Inc. v. Shelter Cap. Partners LLC, 718 F.3d 1006, 1014 (9th Cir. 2013) (quoting Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990)).
To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to "state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); see also CallerID4u, Inc. v. MCI Commc'ns Servs. Inc., 880 F.3d 1048, 1061 (9th Cir. 2018). "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); Teixeira v. Cty. of Alameda, 873 F.3d 670, 678 (9th Cir. 2017). The plausibility standard is not akin to a "probability requirement," but it asks for more than a sheer possibility that a defendant has acted unlawfully. Twombly, 550 U.S. at 556. When a plaintiff's complaint pleads facts that are "merely consistent with" a defendant's liability, the plaintiff's complaint "stops short of the line between possibility and plausibility of 'entitlement to relief.'" Id. at 557 (brackets omitted). The court must accept as true the allegations in the complaint and construe them in favor of the plaintiff. Teixeira, 873 F.3d at 678; see also Iqbal, 556 U.S. at 679; Snyder & Assocs. Acquisitions LLC v. United States, 859 F.3d 1152, 1157 (9th Cir. 2017).
Rule 8 requires complaints in federal court consist of "a short and plain statement of the claim showing that the pleader is entitled to relief[.]" FED. R. CIV. P. 8(a)(2). The pleading standard under Rule 8 "does not require 'detailed factual allegations,' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555); see also FED. R. CIV. P. 8(a)(2). "[L]abels and conclusions, and a formulaic recitation of the elements of a cause of action will not do[.]" Twombly, 550 U.S. at 555. But a claim "may proceed even if it strikes a savvy judge that actual proof of [necessary] facts is improbable," and the plaintiff is unlikely to succeed on the merits. Id. at 556. Leave to amend should be given freely when justice so requires, unless the court determines the pleading could not possibly be cured by the allegation of other facts. FED. R. CIV. P. 15(a)(2); Cook, Perkiss and Liehe, Inc. v. Northern California Collection Serv., Inc., 911 F.2d 242, 247 (9th Cir. 1990).
Discussion
In Upchurch's third claim for relief, he alleges Coburn engaged in racial discrimination in renting real property in violation of OR. REV. STAT. § 659A.421(2)(c). (Am. Compl. at ¶¶ 105-119.) Upchurch alleges that while renting a room from Coburn, Coburn's racist comments and discriminatory behavior towards Upchurch were based on his race and resulted in his constructive eviction and denial of the privileges of his rental. (Am. Compl. at ¶¶ 108-111.)
Coburn argues that Upchurch alleges no facts that suggest Coburn made any distinction or restriction on the price, terms, or condition of his rental agreement or occupancy. (Mot. at 6.) Coburn admits Upchurch has correctly pleaded he is a member of a protected class, but notes he has made no allegations of a discriminatory housing practice. (Id. at 7.) Coburn also argues his rental is not available to the public and thus does not fall under the purview of OR. REV. STAT. § 659A.421(2)(c), because the purpose of chapter is to "ensure individuals have equal access to services and opportunities available to all residents of the state of Oregon." (Id. at 8.)
Upchurch responds that Coburn did not engage in "pre-acquisition" discrimination, but argues he engaged in "post-acquisition" discrimination, specifically by creating a racially-hostile environment under OR. REV. STAT. § 659A.421(2)(c), citing for support a similar federal statute, 42 U.S.C § 3604(b). (Pl.'s Resp., ECF No. 47 ("Pl.'s Resp."), at 4.) Upchurch further argues that whether Coburn offered his rental to the general public is not a required element of a claim under either OR. REV. STAT. § 659A.421(2)(c) or 42 U.S.C. § 3604(b). (Pl.'s Resp. at 7-8.) Coburn replies that Upchurch's theory of a post-acquisition discrimination claim rather than a pre-acquisition discrimination claim still fails, because post-acquisition discrimination claims have not been, and Congress did not intend them to be, regulated under the FHA, and is outside the scope of OR. REV. STAT. § 659A.421(2)(c) when the claim involves a roommate relationship or shared-living situation. (Def.'s Reply, ECF No. 48 ("Def.'s Reply"), at 2-6.) Further, Coburn argues that OR. REV. STAT. § 659A.421(2)(c) is intended to ensure individuals have equal access to services and opportunities available to the public, and does not apply to isolated incidents within a home or between individuals who share a private living space. (Id. at 8.) Coburn argues to hold otherwise would violate the Ninth Circuit's holding in Fair Housing Council of San Fernando Valley v. Rommate.com, LLC, 666 F.3d 1216, 1220 (9th Cir. 2012). (Id.)
I. Whether Upchurch Can Properly Bring a Claim Against Coburn under OR. REV. STAT. § 659A.421(2)(c)
Under OR. REV. STAT. § 659A.421(2)(c), "[a] person may not, because of the race, color, religion, sex, sexual orientation, national origin, marital status, familial status or source of income of any person: [m]ake any distinction, discrimination or restriction against a purchaser in the price, terms, conditions or privileges relating to the sale, rental, lease or occupancy of real property or in the furnishing of any facilities or services in connection therewith." OR. REV. STAT. § 659A.421(2)(c) (2020). No Oregon appellate decision interprets OR. REV. STAT. § 659A.421(2)(c), so the court looks to federal authority related to the FHA and other federal discrimination statutes to interpret OR. REV. STAT. § 659A.421(2)(c). Colquitt v. Manufacturers and Traders Tr. Co., 144 F. Supp. 3d 1219, 1230 (D. Or. 2015). The language in OR. REV. STAT. § 659A.421(2)(c) mirrors that of the FHA, which states "it shall be unlawful . . . [t]o discriminate against any person 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, color, religion, sex, familial status, or national origin." 42 U.S.C. § 3604(b) (2021).
Under the FHA, "[a]n aggrieved person may commence a civil action in an appropriate United States district court or State court not later than 2 years after the occurrence or the termination of an alleged discriminatory housing practice[.]" 42 U.S.C. § 3613(a)(1)(A) (2021). An "aggrieved person" is someone who "claims to have been injured by a discriminatory housing practice; or believes that such person will be injured by a discriminatory housing practice that is about to occur." 42 U.S.C. § 3602(i) (2021). Under the FHA, a "discriminatory housing practice" means "an act that is unlawful under section 3604, 3605, 3606, or 3617 of this title." 42 U.S.C. § 3602(f) (2021).
A. Shared-living Units
The Ninth Circuit does not require shared-living units to comply with the FHA. Roomate.com, 666 F.3d at 1220-1222 (interpreting congressional intent). In Roommate.com, a company operated a website that matched people looking for roommates. Id. at 1218. Participants signed up for the website by creating a profile and answering questions about their sex, sexual orientation, and familial status. Id. The Fair Housing Councils of San Fernando Valley and San Diego sued the company, claiming the questions about a person's sex, sexual orientation, and familial status violated the FHA. Id. The court framed he primary issue as whether the FHA applies to roommates, which in turn the court stated turned on the meaning of "dwelling." Id. at 1219.
To determine the meaning of "dwelling," the court looked to the language of the FHA under § 3604(b), which prohibits discrimination based on "race, color, religion, sex, familial status, or national origin" in the "sale or rental of a dwelling." Id. The FHA, under 42 U.S.C. § 3602(b), defines "dwelling" as "any building, structure, or portion thereof which is occupied as, or designed or intended for occupancy as, a residence by one or more families." Id. The court concluded that "[a] dwelling is thus a living unit designed or intended for occupancy by a family, meaning that it ordinarily has the elements generally associated with a family residence: sleeping spaces, bathroom and kitchen facilities, and common areas, such as living rooms, dens and hallways," and observed it would be difficult to divide a single-family house or apartment into separate "dwellings." Id. at 1220. Thus, the court held the FHA stops at the front door when it comes to shared-living units. Id. The court explained there is
no indication that Congress intended to interfere with personal relationships inside the home. Congress wanted to address the problems of landlords discriminating in the sale and rental of housing, which deprived protected classes of housing opportunities. But a business transaction between a tenant and landlord is quite different from an arrangement between two people sharing the same living space. We seriously doubt Congress meant the FHA to apply to the latter.Id.
The court interpreted the FHA narrowly to avoid the constitutional implications raised by the intrusion into the privacy of one's home and the choice of with whom one lives. Id. at 1222. The court acknowledged the "well-established principle that statutes will be interpreted to avoid constitutional difficulties." Id. (citing Frisby v. Schultz, 487 U.S. 474, 483 (1988)). It then stated, "where an otherwise acceptable construction of a statute would raise serious constitutional problems, that Court will construe the statute to avoid such problems unless such construction is plainly contrary to the intent of Congress." Id. (citing Pub. Citizen v. U.S. Dep't of Justice, 491 U.S. 440, 446 (1989)). Thus, the court held the "FHA doesn't apply to the sharing of living units, [and] it follows that it's not unlawful to discriminate in selecting a roommate." Id.
Applying here the Ninth Circuit's construction of the FHA in Roommate.com, Upchurch fails to plead sufficient factual matter to plausibly state a claim under OR. REV. STAT. § 659A.421(2)(c). The FHA does not apply to people in shared-living units. Roommate, 666 F.3d at 1220. Congress enacted the FHA to address the problems of landlords discriminating against people in the sale and rental of housing because it deprived them of housing opportunities; Congress did not intend the FHA to apply to roommates living in a shared space. Id.
Prior to and after the Roommate.com decision, cases brought under § 3604(b) were not against people in shared-living units, but against landlords in their individual capacity, development corporations, apartment building owners and managers, property management companies, condominium associations and presidents, homeowner associations, private living communities, city housing authorities, and local governments. See, e.g., Noah v. Assor, 379 F. Supp. 3d 1284, 1294 (S.D. Fla. 2019) (finding the tenant sufficiently alleged an FHA claim against her landlord); Francis v. Kings Park Manor, Inc., 944 F.3d 370, 379 (2d Cir. 2019), reh'g en banc granted, 949 F.3d 67 (2d Cir. 2020) (finding the tenant successfully alleged an FHA claim against an apartment management company); Iniestra v. Cliff Warren Inv., Inc., 886 F. Supp. 2d 1161, 1166-68 (C.D. Cal. 2012) (finding tenants successfully established their apartment building owner and manager violated the FHA); Moye v. Conifer Group, No. 3:14-CV-1956-SI, 2016 WL 4010025, 1, *4 (Dr. Or. 2016) (finding the tenant successfully alleged an FHA claim against an apartment management company); Bloch v. Frischholz, 587 F.3d 771, 781 (7th Cir. 2009) (finding condominium owners produced sufficient evidence of discrimination by a condominium association and its president in violation of the FHA); Hill v. River Run Homeowners Ass'n, Inc., 438 F. Supp. 3d 1155, 1185 (D. Idaho 2020) (finding homeowners sufficiently alleged and proved a homeowners association discriminated against them under the FHA); Wetzel v. Glen St. Andrew Living Comty., LLC., 901 F.3d 856, 867 (7th 2018) (finding the resident alleged sufficient facts against a private living community for discrimination under the FHA); Cabrera v. Alvarez, 977 F. Supp. 2d 969, 977 (N.D. Cal. 2013) (finding the tenant alleged sufficient facts against the city housing authority for an FHA claim of discrimination based on national origin); The Comm. Concerning Community Improvement v. City of Modesto, 583 F.3d 690, 715 (9th Cir. 2009) (finding residents alleged sufficient evidence against municipality for discrimination under the FHA based on race). \ \ \ \ \
Accordingly, Upchurch fails to plead sufficient factual matter to establish his living arrangement with Coburn went beyond a shared-living space. Upchurch alleges only that he "moved in with his 'mentor' Defendant Coburn" and paid him $600 in rent. (Am. Compl. at ¶ 56.) This allegation alone does not state or reasonably suggest a relationship beyond a shared-living situation. Thus, Upchurch has failed to state a claim under OR. REV. STAT. § 659A.421(2)(c).
Coburn also argues that because he did not make his "room rental" available to the public, Upchurch could not bring a claim under OR. REV. STAT. § 659A.421(2)(c) against him. (Mot. at 8.) Coburn relies on the title and purpose of OR. REV. STAT.§ 659A.421 to argue he must offer his "room rental" to the public for Upchurch to sufficiently plead a claim under OR. REV. STAT. § 659A.421(2)(c). (Def.'s Reply at 6; Mot. at 8.) The title of OR. REV. STAT. § 659A is "Unlawful Discrimination in Employment, Public Accommodations and Real Property Transactions; Administrative and Civil Enforcement." This title alone does not convey that Coburn must offer his apartment to the general public in order for Upchurch to bring a claim under OR. REV. STAT. § 659A.421(2)(c). The goal of OR. REV. STAT. § 659A is broad and in relevant part states the purpose of the chapter is to provide "[a]n adequate remedy for persons aggrieved by certain acts of unlawful discrimination because of race, color, religion, sex, sexual orientation, national origin, marital status, disability or familial status, or unreasonable acts of discrimination in employment based upon age." OR. REV. STAT. § 659A.003(2). But the Ninth Circuit's Roommate.com decision does not require that the dwelling be offered to the public. Rommate.com, 666 F.3d at 1220. Thus, applying the Ninth Circuit's reading of the FHA as persuasive authority, offering a dwelling to the public is not an element for a claim under OR. REV. STAT. § 659A.421(2)(c) or §3604(b).
B. Statutory Elements
On a motion to dismiss, the court should judge an FHA claim by its statutory elements rather than by the structure of the prima facie case. Gilligan v. Jamco Dev. Corp., 108 F.3d 246, 250 (9th Cir. 1997) (citing Ring v. First Interstate Mortg., Inc., 984 F.2d 924, 927 (8th Cir. 1993)). Under the FHA's statutory elements, a party will survive a motion to dismiss if they establish they were: (1) "aggrieved persons," under § 3602(i); and (2) subject to a discriminatory housing practice, which includes acts unlawful under § 3604. Id. at 250. Assuming that Upchurch could plead sufficient factual matter to establish his living arrangement with Coburn went beyond a shared-living space, Upchurch allegation of discriminatory housing practices falls short because he fails to allege a contractual connection with Coburn.
A plaintiff must allege a contractual connection with a defendant to plausibly plead a post-acquisition discriminatory housing practice under § 3604(b). Bloch, 587 F.3d at 780. In Bloch, Jewish condominium owners sued a condominium association and its president under § 3604(b). Id. at 772. In 2001, the association enacted "Hallway Rules" which prohibited residents from placing any sort of objects outside their condominium doors. Id. at 773. For years and without trouble, various owners affixed mezuzot to their exterior doorposts in accordance with their Jewish faith. Id. However, in May 2004, the association began removing and confiscating the mezuzot from the owners' doors. Id. Some owners voiced their concerns, but the association and its president did not grant relief to the complaining owners. Id. Instead, the president made no effort to stop the staff from repeatedly tearing the mezuzot down, accused one of the owners as being racist and a liar, and encouraged other tenants to vote against such owner in a re-election to the association's board. Id. The association, following its "Hallway Rules," continued to remove the mezuzot during the funeral of an owner and throughout the mourning process. Id. at 774.
The court noted two possible avenues of relief under § 3604(b) for the owners, both of which required a contractual connection between the plaintiff and the defendant. Id. at 776, 779-80. The first avenue is available when post-acquisition discrimination occurs, resulting in actual or constructive eviction and deprives the plaintiff of their right to inhabit the premises as a "privilege of sale" or rental. Id. at 779. A plaintiff's privilege of sale or rental exists based on a contractual connection between the plaintiff and defendant because the plaintiff agreed to be governed by the defendant under the terms and conditions of buying or renting the property. Id.; see Cox v. City of Dallas, Tex., 430 F.3d 734, 745-46 (5th Cir. 2005) (finding that the alleged discriminatory practice was not "connected" to the sale or rental of the dwelling of which § 3604(b) requires). The deprivation of the right to inhabit the premises pursuant to the privilege of sale or rental violates § 3604(b). Bloch, 587 F.3d at 779.
The court in Bloch clarified that under the relevant portions of the FHA, whether a person was an owner or a renter was irrelevant to the analysis.
To find constructive eviction, the Bloch court examined whether any of the owners' condominiums were "unavailable" because of their religion or race. Id. at 777. To prove unavailability, a plaintiff must show their residence is "unfit for occupancy" to the point they are "compelled to leave." Id. (citing BLACK'S DICTIONARY 594 (8th ed. 2004)). The court held the owners did not have a claim under § 3604(b) for constructive eviction because the owners never vacated their condominium and therefore abandoned a constructive eviction claim. Id. at 779.
The second avenue of relief arises when there is post-acquisition discrimination in the terms and conditions related to the sale or rental of the property. Id. at 779-80. The court held the owners and association implicated the second avenue of relief because all the condominium tenants in the complex operated under a common plan which set forth the rights, easements, privileges, and restrictions subject to the purchase of a unit. Id. at 779. Therefore, upon purchasing their units, the owners agreed to be bound by the present and future enactments of the association. Id. at 780. When the operators established the facially-neutral "Hallway Rules" but enforced them in a discriminatory manner against the owners, the court held the operators violated § 3604(b). Bloch, 587 F.3d at 780.
The Seventh Circuit also concluded that a claim brought by a plaintiff-renter under § 3604(b) requires a contractual connection with the defendant. In Wetzel, a lesbian resident renting a home at a private community for older adults, sued the operator of the private community for failing to provide her with non-discriminatory housing in violation of the FHA. Wetzel, 901 F.3d at 860. The plaintiff and the operator executed an agreement by which the operator guaranteed the resident three well-balanced meals per day served in a central location, access to community areas, and access to available laundry facilities. Id. at 867. When community residents regularly abused the plaintiff both physically and verbally, she reported her complaints to the operator's staff but they took little or no action to redress the situation. Id. Consequently, the resident was "confined to her room for prolonged stretches" and "regular harassment impeded her from eating meals in the dining hall, visiting the lobby and other common spaces, and obtaining access to the laundry room." Id. at 867.
The court found that, at a minimum, the resident had a "post-acquisition claim because [such] discrimination affected the provision of services and facilities connected to her rental" agreement, such as her three meals a day served in the dining hall and access to the shared areas and laundry facilities. Id. The court held the discrimination also diminished the privileges of her rental, and while the discrimination did not constructively evict the resident from her rental, she was denied access to other areas in the community and quiet enjoyment, both of which were privileges of her rental. Id. The operator argued there was no contractual connection between the resident and the operator to claim a violation of § 3604(b). Wetzel, 901 F.3d at 867. The court held there was a contractual connection between the resident and the operator based on their earlier agreement for her meals and access to the facilities, as well as on the Tenant Handbook. Id. Thus, the court held the resident brought a proper § 3604(b) claim against the operator based on the denial of these privileges of her rental. Wetzel, 901 F.3d at 867.
In an even more recent case, the Second Circuit found a violation under § 3604(b) when the owner and manager of an apartment complex failed to stop the continued harassment of one tenant by another tenant. In Francis, an African American tenant signed a rental lease agreement with the apartment complex owner and manager. Francis v. Kings Park Manor, Inc., 944 F.3d 370, 373-74 (2d Cir. 2019). The tenant was subject to a repeated "brazen and relentless campaign of racial harassment, abuse, and threats" by another tenant renting an apartment in the same complex. Id. at 373. The tenant informed the owner and manager the other tenant continued to direct racial slurs at him and that the police recently had arrested him for such harassment. Id. at 375. The owner and manager refused to respond or follow-up on the tenant's reports. Id. When the tenant's lease expired, he moved out of his apartment. Id.
The tenant brought a post-acquisition discrimination claim under § 3604(b) against the owner and manager for refusing "to take any action to address a racially hostile housing environment created by one tenant targeting another, even though the [owner and manager] had acted against other tenants to redress prior, non-race related issues." Francis, at 373. The court recognized § 3604(b) "reaches conduct that, as here, 'would constitute discrimination in the enjoyment of residence in a dwelling or in the provisions of services associated with that dwelling' after acquisition" leading to constructive eviction. Francis, at 377. In other words, the court found the owner and manager subjected the tenant to harassment the FHA forbids because they intentionally refused to address this harassment between the tenants when they had addressed issues between tenants prior. Id. at 379. Although the Francis court did not explicitly rely on the rental lease agreement between the tenant and owner and manager to find a contractual connection, the owner's and manager's prior actions to resolve disputes between tenants sufficed as the privilege to which the African-American tenant was entitled, thus supplying the contractual connection for a § 3604(b) claim. Francis, at 379.
The owners in Bloch, the resident in Wetzel, and the tenant in Francis properly pleaded a claim under § 3604(b) by sufficiently alleging the parties had a contractual connection. Unlike the owners in Bloch, the resident in Wetzel, and the tenant in Francis, Upchurch fails to plead sufficient factual matter to establish that he and Coburn had a contractual connection. He alleges only that "he chose move in with his 'mentor' Defendant Coburn" and "even paid him $600 in rent." (Am. Compl. at ¶¶ 56, 107.) These assertions, standing alone, cannot state a claim for relief under OR. REV. STAT. § 659A.421(2)(c) that is plausible on its face. Upchurch does not allege a contractual connection such as those present in Bloch or Wetzel, or a connection similar to that found in Francis that he was denied privileges based on his race while others received such privileges. Thus, without sufficient facts alleged under Upchurch's theory of liability, he has failed to allege a viable claim against Coburn and the court should grant Coburn's motion to dismiss.
II. Leave to Amend
Coburn asks the court to dismiss Upchurch's claim against him with prejudice because Upchurch cannot allege different facts that would state a plausible claim for housing discrimination under OR. REV. STAT. § 659A.421(2)(c). (Mot. at 10.) Leave to amend should be given freely when justice so requires, unless the court determines the pleading could not possibly be cured by the allegation of other facts. FED. R. CIV. P. 15(a)(2); Cook, 911 F.2d at 247. Here, it is possible Upchurch can cure his pleading if he can allege, in good faith, additional facts that the living situation between Upchurch and Coburn went beyond a shared-living arrangement and the existence of a contractual connection between the two of them. Consequently, the court recommends Upchurch be allowed to amend his claim against Coburn.
Conclusion
Based on the foregoing, the court should GRANT Coburn's Motion (ECF No. 45) to Dismiss, but grant Upchurch leave to amend his complaint.
Scheduling Order
The above Findings and Recommendation will be referred to a United States District Court Judge for review. Objections, if any, are due in 17 days. If no objections are filed, then the Findings and Recommendation will go under advisement on that date.
If objections are filed, then a response is due within 14 days after being served with a copy of the objections. When the response is due or filed, whichever date is earlier, the Findings and Recommendation will go under advisement.
IT IS SO ORDERED.
DATED this 16th day of February, 2021.
/s/_________
JOHN V. ACOSTA
United States Magistrate Judge