Opinion
Civil Action No. 3:04-CV-1692-P.
March 29, 2005
MEMORANDUM OPINION AND ORDER
Now before the Court is Defendant Winter Park Place's Motion for Summary Judgment ("Def.'s Mot."), filed December 9, 2004. Plaintiff Alice J. Bobo, proceeding pro se, filed her Response on December 20, 2004. After considering the parties' arguments and briefing, and the applicable law, the Court GRANTS Defendant's Motion for Summary Judgment.
I. Background and Procedural History
A liberal reading of Plaintiff's Complaint and Response leads this court to believe that Plaintiff is asserting a cause of action under the Fair Housing Act ("FHA"), 42 U.S.C. §§ 3601 et seq.
Although Plaintiff's Complaint fails to assert any cause of action directly, it does contain statements which lead the Court to believe Plaintiff may be asserting an FHA violation. See Pl.'s Compl. at 1 ("I Alice J Bob has [sic] suffered an injury due to physical disability. I am a woman disabled and live alone."). Plaintiff's Response lends credence to this idea. See Pl.'s Resp. at 1 ("I am disabled. Because of my disabilities I have limited mobility . . . [Defendant] knew about my disabilities before signing my section 8 request for lease approval with the Dallas Housing Authority. I did ask for accommodation due to my disabilities and that I was under a doctor's care.").
On February 1, 2004, Plaintiff became a resident of Winter Park Place, "pursuant to a Condominium/Townhome Lease Contract with the term of one (1) year." Upton Aff. ¶ 5 (Def.'s Mot. Ex. A). Thereafter, from June through September, Plaintiff called peace officers on at least nine separate occasions to report suspected criminal activity at or near her residence. See Pl.'s Resp. at 6-15; Upton Aff. ¶ 6 (Def.'s Mot. Ex. A). These reports included complaints of children tracking mud on Plaintiff's residence, and individuals scratching Plaintiff's car. See Pl.'s Resp. at 6-15.
Also during this time period, "[o]n July 15, 2004, [Plaintiff] began made [sic] a written complaint regarding the conduct of children of other tenants at the Winter Park Place Townhomes." Upton Aff. ¶ 7 (Def.'s Mot. Ex. A). Additionally, during July 2004, "[Plaintiff] filed a housing discrimination complaint with the City of Garland Fair Housing [O]ffice." Id. ¶ 8 (Def.'s Mot. Ex. A). However, "[o]n July 27, 2004, [Plaintiff] executed a Withdrawal of Complaint with Resolution under the terms of which Tomlinson-Leis Corporation ("TLC") agreed to a `full release from the lease contract." Upton Aff. ¶ 9 (Def.'s Mot. Ex. A).
That withdrawal does not preclude this action. See Def.'s Mot. Ex. 3 ("Withdrawal of Complaint with Resolution") ("Although I am withdrawing my Fair Housing Complaint with HUD and/or the City of Garland, I understand that I may still have the right under the Act to file a complaint in the United States District Court, or in a State or local court. . . .").
Finally, "[o]n or about November 17, 2004, [Plaintiff] vacated [Defendant's] premises. Id. (citing Upton Aff. ¶ 11 (Def.'s Mot. Ex. A)).
II. Summary Judgment Standard
Summary judgment shall be rendered when the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). All evidence and the reasonable inferences to be drawn therefrom must be viewed in the light most favorable to the party opposing the motion. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962). The moving party bears the burden of informing the district court of the basis for its belief that there is an absence of a genuine issue for trial, and of identifying those portions of the record that demonstrate such an absence. Celotex, 477 U.S. at 323.
Once the moving party has made an initial showing, the party opposing the motion must come forward with competent summary judgment evidence of the existence of a material fact issue. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The party defending against the motion for summary judgment cannot defeat the motion unless she provides specific facts that show the case presents a genuine issue of material fact, such that a reasonable jury might return a verdict in her favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Mere assertions of a factual dispute unsupported by probative evidence will not prevent summary judgment. Id. at 248-50; Abbott v. Equity Group, 2 F.3d 613, 619 (5th Cir. 1993). In other words, conclusory statements, speculation and unsubstantiated assertions will not suffice to defeat a motion for summary judgment. Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1429 (5th Cir. 1996) (en banc). If the nonmoving party fails to make a showing sufficient to establish the existence of an element essential to her case, and on which she bears the burden of proof at trail, summary judgment must be granted. Celotex, 477 U.S. at 322-23.
Finally, the Court has not duty to search the record for triable issues. Ragas v. Tennessee Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998). "The party opposing summary judgment is required to identify specific evidence in the record and to articulate the precise manner in which the supports his or her claim." Id. A party may not rely upon "unsubstantiated assertions" as competent summary judgment evidence. Id. However, since a pro se plaintiff does not have the same knowledge and skill as a trained attorney, the Court will "accord a pro se plaintiff some measure of latitude in her complaint and in the errors she might make." Newsome v. EEOC, 301 F.3d 227, 233 (5th Cir. 2002). Accordingly, the Court searched the entire record in an effort to find evidence supporting Plaintiff's claims.
III. Fair Housing Act
The Fair Housing Act makes it unlawful to discriminate in the sale or rental, or otherwise make unavailable or deny housing to any prospective buyer or renter because of a handicap of that individual, of a person associated with that individual, or of a resident or potential resident. 42 U.S.C. § 3604(f)(1) (1994 Supp. 2000). Discrimination is defined as "a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford such persons equal opportunity to use and enjoy a dwelling." Id. § 3604(f)(3)(B).
42 U.S.C. § 3604(f)(1) provides, in relevant part: it shall be unlawful to discriminate in the sale or rental, or to otherwise make unavailable or deny, a dwelling to any buyer or renter because of a handicap of: (A) that buyer or renter; (B) a person residing in or intending to reside in that dwelling after it is sold, rented, or made available; or (C) any person associated with that buyer or renter.
Three theories of liability exist to establish an FHA violation: (1) disparate treatment (or intentional discrimination); (2) disparate impact (or discriminatory effect); and, (3) a failure of a municipality to make a reasonable accommodation. Compare Simms v. First Gibraltar Bank, 83 F.3d 1546, 1555 (5th Cir. 1996) ("We agree that a violation of the FHA may be established not only by proof of discriminatory intent, but also by a showing of significant discriminatory effect."), and Groome Resources Ltd. v. Parish of Jefferson, 234 F.3d 192, 199 (5th Cir. 2000) ("[W]e agree with the Court of Appeals for the Fourth Circuit that `[u]nder the Fair Housing Act . . . a violation occurs when the disabled resident is first denied a reasonable accommodation, irrespective of the remedies granted in subsequent proceedings.'") (quoting Bryant Woods Inn, Inc. v. Howard County, Md., 124 F.3d 597, 602 (4th Cir. 1997)). The plaintiff "bears the burden of proof on the question of reasonableness." Elderhaven, Inc. v. City of Lubbock, 98 F.3d 175, 178 (5th Cir. 1996).
In light of the applicable standards, the Court finds that Plaintiff has failed to prove a prima facie case of any FHA violation. Indeed, "[t]here is no evidence that [Defendant] discriminated against [Plaintiff] or refused to make reasonable accommodations in its rules, policies, practices or services for [Plaintiff] in violation of [the FHA]." Def.'s Mot. at 2-3. In her response, Plaintiff asserts that she "did ask for accommodation due to [her] disabilities," Pl.'s Resp. at 1, yet she offers no evidence or support for her assertion. As stated earlier, conclusory statements are insufficient at this stage. Douglass, 79 F.3d at 1429. In sum, Plaintiff's claim must fail.
In addition to the lack of discrimination, Defendant asserts further that "there is no evidence that [Plaintiff] had a `handicap' within the contemplation of [the Fair Housing Act]." Def.'s Mot. at 2. 42 U.S.C. § 3602(h) defines handicap as "(1) a physical or mental impairment which substantially limits one or more of such person's major life activities, (2) a record of having such an impairment, or (3) being regarded as having such an impairment. . . ." Plaintiff's disputes Defendant's assertion and attaches a letter from the Social Security Administration ("SSA") dated September 28, 2004, which states the SSA found Plaintiff disabled on January 7, 2003. Pl.'s Resp. at 4. Nevertheless, the Court finds it unnecessary to determine whether this evidence creates a disputed issue of fact. As Plaintiff fails to prove any discrimination, her claim must fail.
V. Conclusion
For the foregoing reasons, Defendant's Motion for Summary Judgment is hereby GRANTED.
It is so ordered.