Opinion
NO. CV-11-5108-RMP
08-29-2012
SHERRY E. BECKER, Plaintiff, v. ORCHARD HILLS APTS; RIVERSTONE RESIDENTIAL GROUP, LLC; LAURA GONZALEZ; JOLENE HIVELY; CATHY CLAPPER; INVESTORS CAPITAL GROUP, LLC; KENNEWICK HOUSING AUTHORITY; NAOMI REESE; AND LINDSEY PLUCKER, Defendants.
ORDER GRANTING PLAINTIFF'S MOTION TO REFILE EXHIBITS TO
ORIGINAL COMPLAINT AND GRANTING IN PART AND DENYING IN PART
DEFENDANTS' MOTION FOR JUDGMENT ON THE PLEADINGS
This matter comes before the Court on a motion for judgment on the pleadings, ECF No. 62, by all of the above-captioned Defendants, except Kennewick Housing Authority ("KHA"), Naomi Reese, and Lindsey Plucker.
The caption in this matter shall be amended to reflect Defendants' assertion that the proper party name for "Orchard Hills Apartments" is instead "Strata Orchard, LLC" for purposes of this lawsuit.
This matter also comes before the Court on a motion to resubmit the documents supporting the original complaint, ECF No. 42, by Plaintiff Sherry Becker, who is proceeding pro se. As the Court indicated to Ms. Becker upon her filing of the amended complaint, an amended complaint supersedes the original complaint, and after an amended complaint is filed the Court treats the original complaint as non-existent. Forsyth v. Humana, Inc., 114 F.3d 1467, 1474 (9th Cir.1997); see also Fed. R. Civ. P. 15(c). However, to construe liberally and sufficiently comprehend Ms. Becker's filings, the Court finds it necessary and justifiable to refer to the documents supporting Ms. Becker's original complaint, ECF No. 4. Therefore, the Court grants Ms. Becker's motion, ECF No. 62, and directs that the docket entry for the amended complaint, ECF No. 7, be amended to reflect that the exhibits for the original complaint, ECF No. 4 at 9-47, shall be considered to be attachments to the amended complaint as well.
Ms. Becker alleges that the Defendants Strata Orchard, LLC ("Strata"), Riverstone Residential Group, LLC ("Riverstone"), and individual Defendants Laura Gonzalez, Jolene Hively, and Cathy Clapper, under the direction of Defendant Investor's Capital Group, LLC" ("Investor's"), violated the Fair Housing Act, 42 U.S.C. §§ 3601, et seq ("FHA"), by denying Ms. Becker reasonable accommodation in the form of a free parking space close to her apartment, by discriminating against Ms. Becker on the basis of her disability, and by charging Ms. Becker illegally high rent based on a mistaken belief that Ms. Becker was hiding income from the United States Coast Guard.
In Ms. Becker's amended complaint, she further alleges that Defendants Kennewick Housing Authority ("KHA") and KHA employees Naomi Rees and Lindsey Plucker violated the Fair Housing Act by allowing Riverstone, Investor's and the individual Defendants to increase the rent, refusing to negotiate the rental amount on behalf of Ms. Becker, and failing to hold a hearing in response to Ms. Becker's grievances. In addition, Ms. Becker alleges that Ms. Plucker and Ms. Reese "worked behind the scenes [at KHA] and were in the process of trying to make it look like Plaintiff Becker was not complying with furnishing requested information along with trying to make it look like she had hidden income from the COAST GUARD." ECF No. 7 at 3 (capitalization in original).
The Court directed the U.S. Marshals to serve the amended complaint on Defendants on behalf of Ms. Becker, and the Defendants answered Ms. Becker's complaint.
Background
The Court notes that Ms. Becker informed the Court at a telephonic scheduling conference on March 23, 2012, that she is no longer living in the Orchard Hills Apartments ("Orchard Hills") in Richland Washington, as of March 7, 2012. ECF Nos. 78 & 79; see also ECF No. 68 (Change of Address Notice from Ms. Becker). The Court gathers the following additional background information from Ms. Becker's allegations in her amended complaint, ECF No. 7.
Ms. Becker identifies herself as a service-connected disabled veteran who lives on social security payments and veterans' benefits who was living at the time of her amended complaint in the Orchard Hills. Ms. Becker suffered repeated injuries to her lower back, leg, and ankle from a motorcycle accident in 1982, from a fall in the context of a roofing job in 1995, and from a fall in the context of a job at a meat processing company in 2006. During the time that Ms. Becker was a resident of the apartment complex, she paid to have a covered parking space close to her apartment, a space that she requested as an accommodation for her physical limitations.
Ms. Becker was living at Orchard Hills through a program pursuant to Section 8 of the United States Housing Act of 1937, as amended by § 201(a) of the Housing and Community Development Act of 1974, Pub.L. No. 93-383, 88 Stat. 653 (codified at 42 U.S.C. §§ 1437 to 1440), under which KHA paid a portion of Ms. Becker's rent. According to Ms. Becker, from the start of her tenancy at Orchard Hills, the total amount of her rent payment exceeded the amount that she could be charged as a Section 8 tenant Ms. Becker also recalls that her rent was increased in December 2010 by $55.00 purportedly based on a "market increase." In addition, in September 2011, there was an increase in the amount of Ms. Becker's contribution to her rent payments in relation to KHA's Housing Assistance Payment ("HAP") contribution. This increase was the result of a recertification of Ms. Becker's income by the KHA.
Analysis
As a preliminary matter, the Court notes that the moving Defendants for the first time in their reply brief seek to strike a variety of Plaintiff's attachments to her Complaint and Amended Complaint. The Court disregards these arguments, as Ms. Becker was not given an opportunity to respond to them, and considers Plaintiff's attachments for purposes of the motion for judgment on the pleadings. See, e.g., Dannenfelser v. DimlerChrysler Corp., 370 F.Supp.2d 1191, 1097-98 (D. Haw. 2005) (striking portions of summary judgment reply brief for raising new arguments not brought in the opening brief); Kowalski v. Mommy Gina Tun Res., 574 F.Supp.2d 1160, 1164 (D. Haw. 2008) (disregarding arguments made for the first time in summary judgment reply brief).
Standard for Dismissal under Federal Rule of Civil Procedure 12(c)
A court should grant a motion brought pursuant to Rule 12(c) where, accepting as true, allegations of fact in the complaint, as construed in the light most favorable to the non-moving party, "there is no issue of material fact in dispute, and the moving party is entitled to judgment as a matter of law." Fleming v. Pickard, 581 F.3d 922, 925 (9th Cir. 2009). When a Rule 12(c) motion is used to raise a defense of failure to state a claim, a motion for judgment on the pleadings faces the same test as a motion under Rule 12(b)(6). McGlinchy v. Shell Chem. Co., 845 F.2d 802, 810 (9th Cir. 1988).
A complaint may be dismissed for failure to state a claim under Rule 12(b)(6) where the factual allegations do not raise the right to relief above the speculative level. Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009); Bell Atl. v. Twombly, 550 U.S. 544, 555 (2007).
Conversely, a complaint may not be dismissed for failure to state a claim where the allegations plausibly show that the pleader is entitled to relief. Twombly, 550 U.S. at 555. In ruling on a motion under Rule 12(b)(6), a court must construe the pleadings in the light most favorable to the plaintiff and accept all material factual allegations in the complaint, as well as any reasonable inferences drawn therefrom. Broam v. Bogan, 320 F.3d 1023, 1028 (9th Cir. 2003). "[C]onclusory allegations without more are insufficient to defeat a motion to dismiss for failure to state a claim." McGlinchy, 845 F.2d at 810.
Fair Housing Act Reasonable Accommodation Claim
The Fair Housing Act ("FHA"), 42 U.S.C. § 3601, et seq., as amended by the Fair Housing Amendments Act of 1988 ("FHAA"), Pub.L. No. 100-430, 102 Stat. 1626 (1988) ("1988 Amendments"), bars housing discrimination against people with disabilities. Specifically, the FHA prohibits discrimination against qualifying people (1) "in the sale or rental, or to otherwise make unavailable or deny, a dwelling ... because of a handicap," 42 U.S.C. § 3604(f)(1); (2) "in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection with such dwelling," 42 U.S.C. § 3604(f)(2); (3) in refusing to allow "at the expense of the handicapped person, reasonable modifications of existing premises occupied ... if such modifications may be necessary to afford ... full enjoyment of the premises," 42 U.S.C. § 3604(f)(3)(A); (4) in refusing to make "reasonable accommodations" to rules, policies, and services, "when such accommodations may be necessary to afford ... equal opportunity to use and enjoy a dwelling, 42 U.S.C. § 3604(f)(3)(B); and (5) in designing and constructing certain multifamily dwellings first occupied thirty months after September 13, 1988, 42 U.S.C. § 3604(f)(3)(C).
To state a discrimination claim under the FHA for failure to reasonably accommodate, a plaintiff must allege that (1) she "suffers from a handicap as defined by the FHAA," (2) the defendant or defendants "'knew or reasonably should have known of" plaintiff's handicap; (3) "'accommodation of the handicap 'may be necessary' to afford [plaintiff] an equal opportunity to use and enjoy the dwelling;" and (4) the defendant or defendants "'refused to make such accommodation.'" McGary v. City of Portland, 386 F.3d 1259, 1262 (9th Cir. 2004) (quoting Giebeler v. M& B Associates, 343 F.3d 1143, 1147 (9th Cir. 2003) (quoting United States v. California Mobile Home Park Mgmt. Co., 107 F.3d 1374, 1380 (9th Cir. 1997)).
The FHA and FHAA define a "handicapped" person as one who has a "physical or mental impairment which substantially limits one or more of such person's major life activities," as well as someone who is "regarded as having such an impairment." 42 U.S.C. § 3602(h)(1), (3). "Major life activities" mean functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working. 24 C.F.R. § 100.201(b).
Pro se pleadings are liberally construed. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1988). Courts also apply liberal pleading standards to determine whether a litigant has stated a claim under the FHA. See McGary, 386 F.3d at 1262.
The Court finds that Ms. Becker's pleadings create a question of fact regarding whether Ms. Becker qualifies as "handicapped" pursuant to the above definition. Ms. Becker submits evidence of chronic back and ankle pain indicating that she may be mobility impaired. ECF No. 4 at 22-23. Furthermore, Defendants do not dispute at this time whether they knew of Ms. Becker's claimed disabilities.
The primary dispute, rather, concerns the third and fourth elements of a prima facie reasonable accommodation claim, whether the parking space at issue "'may be necessary' to afford [Plaintiff] an equal opportunity to use and enjoy the dwelling;" and whether Defendants "'refused to make such accommodation.'" McGary, 386 F.3d at 1262. Plaintiff was assigned a parking spot, and she does not dispute that the parking spot met her needs. However, Plaintiff claims that she should not have had to pay for the parking spot and suffered financial injury as a result of Defendants' actions. Plaintiff's pleadings and attached exhibits contain contradictory references regarding whether other tenants received free parking spaces or whether any assigned parking space in the apartment complex required payment of a fee. Compare ECF No. 4 at 23 with ECF No. 4 at 27.
In the employment context, a paid parking space may be a reasonable accommodation. Lyons v. Legal Aid Soc 'y, 68 F.3d 1512 (2d. Cir. 1995). The regulations implementing the FHA also contemplate that a parking space may be a reasonable accommodation for a mobility impaired residential tenant. See Example 2 of 24 C.F.R. §100.204. The Ninth Circuit has additionally found that a landlord's refusal to waive a generally applicable resident fee to enable the use and enjoyment of a dwelling by a disabled resident can, in some circumstances, amount to a failure to accommodate under the FHA and FHAA, 42 U.S.C. § 3604(f)(3)(B). United States v. California Mobile Home Park Management Co., 29 F.3d 1413, 1416 (9th Cir. 1994).
Once Plaintiff has put forth a prima face case, the burden shifts to the landlord Defendants to demonstrate that the requested accommodation imposes an undue burden on them. See California Mobile Home Park Management Co., 29 F.3d at 1418 (holding that charges of improper assessment of fees must be assessed through two-part inquiry into whether a waiver may be necessary to afford handicapped tenant equal opportunity to use and enjoy a dwelling and whether such waiver would impose an undue burden on the landlord). The fact that an accommodation requires a certain amount of expenditure on the part of the landlord does not automatically render that accommodation unreasonable. See Giebeler v. M & B Assoc., 343 F.3d 1143, 1152 (9th Cir.2003) ("accommodations need not be free of all possible cost to the landlord...."). Construed liberally, Plaintiff's allegations beg the question of whether the landlord Defendants should have waived the parking fee to promote Plaintiff's equal use and enjoyment of her then-residence. Therefore, Defendants have not shown by reference to Plaintiff's pleadings alone that they are entitled to judgment as a matter of law regarding Plaintiff's reasonable accommodation claim.
Civil Action for Discriminatory Housing Practice
Under the FHA, a landlord must not discriminate in selling or renting, "or otherwise make unavailable or deny, a dwelling to someone because of the handicap of . . . a person living . . . in the dwelling after it is . . . rented. 42 U.S.C. § 3604(f)(2); 24 C.F.R. § 100.70(b). The FHA provides for a private civil action by an injured person to obtain relief from "the occurrence or the termination of an alleged discriminatory housing practice." 42 U.S.C. § 3613. However, even liberally construing Ms. Becker's complaint, Ms. Becker does not allege any facts supporting a nexus between her disability and any action taken toward Ms. Becker by the moving Defendants. In other words, there are no specific allegations that the rent that Ms. Becker was charged during her tenancy at Orchard Hills had any connection to her disability. Moreover, any allegations regarding whether Ms. Becker was entitled to receive more rental assistance from KHA does not implicate the moving Defendants. Therefore, Ms. Becker's claims for damages based on discriminatory housing practices by Defendants Strata, Investor's, Riverstone and individual Defendants Ms. Gonzalez, Ms. Hively, and Ms. Clapper are dismissed. Accordingly, IT IS HEREBY ORDERED:
1. Plaintiff's motion to resubmit attachments to original complaint, ECF No. 42, is GRANTED. The Court directs the Clerk's Office to amend the docket entry for the amended complaint, ECF No. 7, to reflect that the exhibits for the original complaint, ECF No. 4 at 9-47, shall be considered to be attachments to the amended complaint as well.
2. The motion for judgment on the pleadings, ECF No. 62, by Defendants Defendants Strata, Investor's, Riverstone and individual Defendants Ms. Gonzalez, Ms. Hively, and Ms. Clapper, is DENIED IN PART with respect to Plaintiff's reasonable accommodation claim and GRANTED IN PART with respect to Plaintiff's housing discrimination claims. Plaintiff's claims based on discriminatory housing practices under the FHA against Defendants Strata, Investor's,
Riverstone and individual Defendants Ms. Gonzalez, Ms. Hively, and Ms. Clapper are, thus, DISMISSED.
3. In light of the dismissal of Plaintiff's discriminatory housing practice claims with respect to Defendants Strata, Investor's, Riverstone and individual Defendants Ms. Gonzalez, Ms. Hively, and Ms. Clapper, the Court further DENIES AS MOOT, Plaintiff's motion for subpoena duces tecum, ECF No. 66 against Defendants Riverstone and Ms. Gonzalez.
4. The Court further DENIES AS MOOT Plaintiff's emergency motion to intercede, ECF No. 59, on the basis that the motion seeks court intervention in her move out of the Orchard Hills apartment complex, which occurred in prior to March 7, 2012. ECF Nos. 78 & 79; see also ECF No. 68 (Change of Address Notice from Ms. Becker).
IT IS SO ORDERED. The Clerk's Office is directed to enter this Order, amend the caption to substitute "Strata Orchard, LLC" as a Defendant in place of the previously named "Orchard Hills Apartments," amend the docket entry for the amended complaint, ECF No. 7, as specified above, and provide copies to counsel and Ms. Becker.
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ROSANNA MALOUF PETERSON
Chief United States District Court Judge