Opinion
Case No. 7:17-cv-02529-AMQ-JDA
07-12-2018
Little Tom Childress, Jr., Plaintiff, v. Rebecca Roberts, Site Manager; Babbie M. Jaco, Vice President; Boyd Management LTD, Defendants.
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
This matter is before the Court on a motion to dismiss filed by Defendant Babbie M. Jaco ("Jaco") [Doc. 29], a motion to amend the Complaint filed by Plaintiff [Doc. 68], and a motion for summary judgment filed by Plaintiff [Doc. 82]. Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02(B)(2)(e), D.S.C., this magistrate judge is authorized to review all pretrial matters in cases involving litigation by individuals proceeding pro se and to submit findings and recommendations to the District Court.
Plaintiff, proceeding pro se, filed this action on September 20, 2017, alleging violations of the Fair Housing Act ("FHA"). [Doc. 1.] On January 31, 2018, Jaco filed a motion to dismiss. [Doc. 29.] On February 1, 2018, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), Plaintiff was advised of the summary judgment/dismissal procedure and of the possible consequences if he failed to adequately respond to the motion. [Doc. 32.] Plaintiff filed a response in opposition to the motion to dismiss on March 27, 2018. [Doc. 64.] Jaco filed a reply on April 3, 2018 [Doc. 69], and Plaintiff filed a sur-reply on April 18, 2018 [Doc. 77]. On April 3, 2018, Plaintiff filed a motion to amend the Complaint. [Doc. 68.] Defendants filed a response in opposition to the motion to amend on April 16, 2018. [Doc. 73.] On June 4, 2018, Plaintiff filed a motion for summary judgment. [Doc. 82.] Defendants filed a response in opposition to the motion for summary judgment on June 18, 2018. [Doc. 86.] The motions are ripe for review.
BACKGROUND
Plaintiff asserts that on August 4, 2015, he was racially discriminated against by Defendant Rebecca Roberts ("Roberts"), a manager with Defendant Boyd Management Ltd. ("Boyd Management"). [Doc. 1 at 3.] He contends that Roberts belittled Plaintiff and used racial remarks, saying "they were going to take back their country from those taking over their country." [Id.] Plaintiff alleges this treatment was based on his skin color. [Id.]
Plaintiff contends that on October 13, 2015, he was retaliated against after filing an official complaint to the "U.S.D.A., department of Agriculture F.H.A." [Id.] He further contends that he was a whistle blower for the Inspector General's Office against Roberts. [Id.] As a result, he was given two false violations, and Roberts threatened to call the police when Plaintiff questioned her about the false violations. [Id.] Roberts also told Plaintiff that he could not take pictures outside because he "was scaring the white folks." [Id.] Additionally, Roberts used racial remarks toward Plaintiff on October 13, 2015. [Id.]
Plaintiff alleges he was treated differently from a white tenant who walked around in his underwear, scaring the neighbors. [Id.] According to Plaintiff, many neighbors complained, but Roberts never wrote any violations against that tenant. [Id.] Moreover, Plaintiff wrote a complaint about a white tenant, and Roberts took no action. [Id. at 4.]
Finally, Plaintiff alleges that he went to Roberts on August 25, 2015, about a lease addendum contract between Plaintiff; his co-tenant, Karen Ferguson ("Ferguson"); Boyd Management; and the U.S.D.A. and Rural Development, regarding money for the following month's rent. [Id.] Roberts told Plaintiff that she does not give tenants paperwork. [Id.] Plaintiff asserts that the re-certification documents were misrepresentations and that they were in fact fraudulent documents and contained false information. [Id.]
APPLICABLE LAW
Liberal Construction of Pro Se Complaint
Plaintiff brought this action pro se, which requires the Court to liberally construe his pleadings. Estelle v. Gamble, 429 U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520 (1972); Loe v. Armistead, 582 F.2d 1291, 1295 (4th Cir. 1978); Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). Pro se pleadings are held to a less stringent standard than those drafted by attorneys. Haines, 404 U.S. at 520. The mandated liberal construction means only that if the Court can reasonably read the pleadings to state a valid claim on which the plaintiff could prevail, it should do so. Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999). A court may not construct the plaintiff's legal arguments for him. Small v. Endicott, 998 F.2d 411, 417-18 (7th Cir. 1993). Nor should a court "conjure up questions never squarely presented." Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).
Motion to Amend Standard
Rule 15(a) of the Federal Rules of Civil Procedure provides that when twenty-one days have passed after service of a responsive pleading or a motion under Rule 12(b), (e), or (f), a plaintiff may amend his complaint only with leave of court or by written consent of the defendant. Leave to amend shall be given freely when justice so requires. Fed. R. Civ. P. 15(a)(2). "[L]eave to amend a pleading should be denied only when the amendment would be prejudicial to the opposing party, there has been bad faith on the part of the moving party, or the amendment would have been futile." Johnson v. Oroweat Foods Co., 785 F.2d 503, 509 (4th Cir. 1986) (citing Foman v. Davis, 371 U.S. 178, 182, (1962)).
Motion to Dismiss Standard
Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a claim should be dismissed if it fails to state a claim upon which relief can be granted. When considering a motion to dismiss, the court should "accept as true all well-pleaded allegations and should view the complaint in a light most favorable to the plaintiff." Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993). However, the court "need not accept the legal conclusions drawn from the facts" nor "accept as true unwarranted inferences, unreasonable conclusions, or arguments." Eastern Shore Mkts., Inc. v. J.D. Assocs. Ltd. P'ship, 213 F.3d 175, 180 (4th Cir. 2000). Further, for purposes of a Rule 12(b)(6) motion, a court may rely on only the complaint's allegations and those documents attached as exhibits or incorporated by reference. See Simons v. Montgomery Cty. Police Officers, 762 F.2d 30, 31 (4th Cir. 1985). If matters outside the pleadings are presented to and not excluded by the court, the motion is treated as one for summary judgment under Rule 56 of the Federal Rules of Civil Procedure. Fed. R. Civ. P. 12(d).
With respect to well-pleaded allegations, the United States Supreme Court explained the interplay between Rule 8(a) and Rule 12(b)(6) in Bell Atlantic Corp. v. Twombly:
Federal Rule of Civil Procedure 8(a)(2) requires only "a short and plain statement of the claim showing that the pleader is entitled to relief," in order to "give the defendant fair notice of what the . . . claim is and the grounds upon which it rests." While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the "grounds" of his "entitle[ment] to relief"
requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level on the assumption that all the allegations in the complaint are true (even if doubtful in fact).550 U.S. 544, 555 (2007) (footnote and citations omitted); see also 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1216, at 235-36 (3d ed. 2004) ("[T]he pleading must contain something more . . . than a bare averment that the pleader wants compensation and is entitled to it or a statement of facts that merely creates a suspicion that the pleader might have a legally cognizable right of action.").
"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) (citing Twombly, 550 U.S. at 556). "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." Id. (citing Twombly, 550 U.S. at 556). The plausibility standard reflects the threshold requirement of Rule 8(a)(2)—the pleader must plead sufficient facts to show he is entitled to relief, not merely facts consistent with the defendant's liability. Twombly, 550 U.S. at 557 (quoting Fed. R. Civ. P. 8(a)(2)); see also Iqbal, 556 U.S. at 678 ("Where a complaint pleads facts that are 'merely consistent with' a defendant's liability, it 'stops short of the line between possibility and plausibility of "entitlement to relief."'" (quoting Twombly, 550 U.S. at 557)). Accordingly, the plausibility standard requires a plaintiff to articulate facts that, when accepted as true, demonstrate that the plaintiff has stated a claim that makes it plausible the plaintiff is entitled to relief. Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009) (quoting Iqbal, 556 U.S. at 678).
Summary Judgment Standard
Rule 56 of the Federal Rules of Civil Procedure states, as to a party who has moved for summary judgment:
The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.Fed. R. Civ. P. 56(a). A fact is "material" if proof of its existence or non-existence would affect disposition of the case under applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue of material fact is "genuine" if the evidence offered is such that a reasonable jury might return a verdict for the non-movant. Id. at 257. When determining whether a genuine issue has been raised, the court must construe all inferences and ambiguities against the movant and in favor of the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962).
The party seeking summary judgment shoulders the initial burden of demonstrating to the court that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the movant has made this threshold demonstration, the non-moving party, to survive the motion for summary judgment, may not rest on the allegations averred in his pleadings. Id. at 324. Rather, the non-moving party must demonstrate specific, material facts exist that give rise to a genuine issue. Id. Under this standard, the existence of a mere scintilla of evidence in support of the non-movant's position is insufficient to withstand the summary judgment motion. Anderson, 477 U.S. at 252. Likewise, conclusory allegations or denials, without more, are insufficient to preclude granting the summary judgment motion. Id. at 248. "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted." Anderson, 477 U.S. at 248. Further, Rule 56 provides in pertinent part:
A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:
Fed. R. Civ. P. 56(c)(1). Accordingly, when Rule 56(c) has shifted the burden of proof to the non-movant, he must produce existence of a factual dispute on every element essential to his action that he bears the burden of adducing at a trial on the merits.(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.
DISCUSSION
Plaintiff's Motion to Amend
In his motion to amend the Complaint, Plaintiff seeks to add Ferguson as a plaintiff in this case. [Doc. 68.] However, a pro se party does not have standing to bring a civil action in this Court on behalf of others. Myers v. Loudoun Cty. Pub. Sch., 418 F.3d 395, 400-01 (4th Cir. 2005) (holding that a non-attorney parent may not litigate the claims of his minor children in federal court, even where Virginia law permits the parent to assert the children's claims); Oxendine v. Williams, 509 F.2d 1405, 1407 (4th Cir. 1975) (holding that a pro se prisoner unassisted by counsel cannot be an advocate for others in a class action). In Myers, the Fourth Circuit Court of Appeals explained that "[a]n individual unquestionably has the right to litigate his own claims in federal court." Myers, 418 F.3d at 400. This is a right of high standing which "'reflects a respect for the choice of an individual citizen to plead his or her own cause.'" Id. (quoting Cheung v. Youth Orchestra Found. of Buffalo, Inc., 906 F.2d 59, 61 (2d Cir.1990)). However, the right to litigate for oneself does not create a similar right to litigate on behalf of others. Myers, 418 F.3d at 400. "The reasoning behind this rule is two-fold: it protects the rights of those before the court . . . , and jealously guards the judiciary's authority to govern those who practice in its courtrooms . . . ." Id. Thus, Plaintiff's proposed amendment is futile because he cannot bring an action on Ferguson's behalf. Accordingly, Plaintiff's motion to amend the Complaint should be denied.
Jaco's Motion to Dismiss
Jaco argues that the allegations in the Complaint do not present any basis for a legal claim against Jaco because the Complaint contains only one conclusory sentence regarding Jaco. [Doc. 29-1.] The Court agrees.
The FHA makes it illegal to discriminate in housing practices on the basis of race, color, religion, sex, handicap, familial status, or national origin. See 42 U.S.C. § 3601 et seq. Under the FHA, it is further "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, or on account of his having aided or encouraged any other person in the exercise or enjoyment of, any right granted or protected by section 3603, 3604, 3605, or 3606 of this title." 42 U.S.C. § 3617.
Here, Plaintiff makes no factual allegations against Jaco that create a right to relief. Plaintiff's sole allegation against Jaco is that "Vice President Babbie M. Jaco is liable responsible for these FHA violations." [Doc. 1 at 2.] However, absent special circumstances, corporate officers are not individually liable for the discriminatory acts of the corporation's employees under the FHA. Meyer v. Holley, 537 U.S. 280, 285-86 (2003). Thus, because Plaintiff has not alleged personal involvement by Jaco, Jaco is entitled to dismissal. See Letke v. Wells Fargo Home Mortg., Inc., No. RDB-12-3799, 2013 WL 6207836, at *4-5 (D. Md. Nov. 27, 2013) (dismissing a CEO in a FHA case where the complaint made no factual allegations about the CEO and the plaintiff argued only that the CEO was liable as a corporate officer).
Jaco is not otherwise mentioned in the Complaint except in the list of Defendants. [See Doc. 1.]
In his response in opposition to the motion to dismiss, Plaintiff, for the first time, asserts that Jaco failed to properly train Roberts, benefitted from Plaintiff's rent payments, participated in the complaint and/or investigation with the U.S.D.A., failed to investigate, and signed contracts with government agencies. [See Doc. 64-1.] Plaintiff makes similar arguments in his sur-reply. [See Doc. 77.] However,"a plaintiff may not amend [his] complaint via briefing." Hurst v. District of Columbia, 681 F. App'x 186, 194 (4th Cir. 2017). Moreover, as stated, Plaintiff's motion to amend does not seek to add new factual allegations but only to add Ferguson as a Plaintiff. Accordingly, the Court will not address allegations not pled in the Complaint.
Plaintiff's Motion for Summary Judgment
Plaintiff argues he is entitled to summary judgment because Defendants "have failed to produce any evidence to support their position of denial of event of racial discrimination and retaliation done by unlawful conducts of their own site manager Rebecca Roberts." [Doc. 82.] Plaintiff, however, has not met his burden of demonstrating that there is no genuine issue of material fact with regard to his claims. See Celotex Corp., 477 U.S. at 323 (holding the party seeking summary judgment bears the burden of initially coming forward and demonstrating an absence of a genuine issue of material fact); Fed. R. Civ. P. 56(c)(1) ("A party asserting that a fact cannot be or is genuinely disputed must support the assertion by . . . citing to particular parts of materials in the record . . . ."). Additionally, Plaintiff filed his motion for summary judgment before discovery has closed in this case and well before the dispositive motions deadline. [See Doc. 57 at 2 (Consent Amended Scheduling Order, stating that "[d]iscovery shall be completed no later than August 31, 2018" and motions "shall be filed no later than September 14, 2018").] Based on the foregoing, Plaintiff's motion for summary judgment should be denied without prejudice and with leave to refile because it is premature.
As stated, the dispositive motions deadline in this case is September 14, 2018. [Doc. 57 at 2.] Thus, Plaintiff will have the opportunity to refile his motion for summary judgment.
RECOMMENDATION
Wherefore, based upon the foregoing, the Court recommends that Defendant Jaco's motion to dismiss be GRANTED; Plaintiff's motion to amend the Complaint be DENIED; and Plaintiff's motion for summary judgment be DENIED without prejudice and with leave to refile.
IT IS SO RECOMMENDED.
s/ Jacquelyn D. Austin
United States Magistrate Judge July 12, 2018
Greenville, South Carolina