Opinion
3:21-cv-00582-JR 3:21-cv-00685-JR 3:21- cv-00871-JR[1]
06-12-2022
LARRY JOHNSON, Plaintiff, v. THOMAS BRENNEKE; GARRETT LAMAR MILES; GUARDIAN MANAGEMENT, LLC; GUARDIAN REAL ESTATE SERVICES; UPTOWN TOWER APARTMENTS; LISA SIMONSON; KELLY PAINE; and SUNSHINE SALES, Defendants.
Jolie A. Russo, United States Magistrate Judge.
Pro se plaintiff Larry Johnson filed this Fair Housing Act (“FHA”) action against defendants Thomas Brenneke, Lisa Simonson, Kelly Paine, Guardian Management, LLC, Guardian Real Estate Services, and Uptown Tower Apartments (collectively “Guardian Defendants”), as well as Garrett Lamar Miles and Sunshine Sales. Plaintiff and Guardian Defendants filed cross-motions for summary judgment pursuant to Fed.R.Civ.P. 56. In addition, Guardian Defendants move for a pre-filing order. For the reasons stated below, Guardian Defendants' request for a pre-filing order and plaintiff's summary judgment motion should be denied, and Guardian Defendant's summary judgment motion should be granted.
BACKGROUND
Uptown Tower is an apartment complex that participates in the Section 8 project-based housing assistance program through the U.S. Department of Housing and Development (“HUD”) and qualifies as a covered dwelling under the FHA. Guardian Management is the property manager for Uptown Tower. Simonson and Pain are employees, and Brenneke is the sole proprietor of Guardian Real Estate and Guardian Management.
Plaintiff, Miles, and Sales are all residents of Uptown Tower. Miles and Sales are romantically involved and share the same apartment. Plaintiff is a low-income senior with significant health needs. His rent is subsidized by the HUD Section 8 project-based housing program.
On January 9, 2020, plaintiff obtained a protective order from Multnomah County Circuit Court against Miles. Pl.'s Partial Mot. Summ. J. Ex. E (doc. 35). Although the precise circumstances underlying the protective order are unclear, Miles was subsequently arrested and jailed in Multnomah County for violation of the protective order due to an incident that occurred on February 18, 2020, in which Miles walked by plaintiff in the lobby to access the stairwell to his apartment. Id. An amended protective order was entered on March 2, 2020. Pl.'s Partial Mot. Summ. J. Ex. A (doc. 35). The amended protective order continued to find that Miles presented an “immediate and present danger of further abuse” to plaintiff, but allowed Miles to “be less than 10 feet away” from plaintiff in the Uptown Tower lobby to access his apartment. Id.
Plaintiff also alleges that Miles, along with other individuals residing at Uptown Tower including Kenneth De Groot and Lisa Rudhe, have “criminal conviction history[ies]” and engage in the sale and manufacturing of illegal drugs. Am. Compl. ¶ 69 (doc. 52). According to plaintiff, these behaviors represent violations of the Uptown Tower rental agreement and HUD rules. Id.
De Groot and Rudhe are listed as individual defendants in Case No. 3:21-00685-JR.
Plaintiff made repeated reasonable accommodation requests to have Miles evicted or transferred. See, e.g., Pl.'s Partial Mot. Summ. J. Exs. B, F (doc. 35). He also made reasonable accommodation requests associated with the installation of security cameras and the provision of an air purifier.
On August 25, 2020, Guardian Management, through counsel, instructed plaintiff to submit documentation of the nexus between his disability and the requested accommodations. Pl.'s Partial Mot. Summ. J. Ex. C (doc. 35). In particular, counsel stated:
The reasonable accommodation request you submitted does not contain a third-party verification from a medical provider that your condition(s) qualify as a disability with the meaning of the Fair Housing Act or the disability-related need for your requested accommodations. Before considering your reasonable accommodation request, Guardian will need a verification from a medical professional or professional service provider (such as a social worker) that indicates that you have a qualifying disability and shows the nexus between that disability and each of your requested accommodations.
Guardian has information in its records that you have a mobility disability. You have not shown a nexus between such disability and your requested accommodations. It is unclear how your requested accommodations would afford a person with a mobility disability an equal opportunity to use and enjoy housing.
If you have additional disabilities that are relevant to your accommodation requests, it would be helpful for Guardian to understand the connection between your disability(ies) and the requested accommodations. • Unless Guardian receives verification of your disability and disability-related need for reasonable accommodations, it cannot consider your request any further.Id. Additionally, Guardian Management notified plaintiff that security cameras were not feasible but asked him to report “any criminal conduct by other residents on or near the premise . . . to management so Guardian can investigat[e] any such conduct.” Id.
Plaintiff initiated this action on April 19, 2021. On May 28, 2021, the present case was consolidated with plaintiff's two other lawsuits alleging similar violations. Order (May 28, 2021) (doc. 14). Plaintiff thereafter thrice amended his complaint, asserting FHA discrimination based on Guardian Defendants' (1) failure to control “criminal elements within and outside the apartment building, ” including the actions of Miles and Sales; (2) requirement that plaintiff “provide additional ‘medical verification' of [his] readily identifiable ‘disability' . . . for the purposes of [his] reasonable accommodations requests, ” including those to evict Miles and for security cameras and an air purifier; (3) assignment of parking spaces; and (4) denial of “access to the renters rights group bulletin board.” Am. Compl. ¶¶ 15-76 (doc. 52).
On June 25, 2021, plaintiff filed a partial motion for summary judgment as to his first claim. On July 16, 2021, Guardian Defendants lodged a cross-motion for summary judgment as to all claims. On July 20, 2021, Guardian Defendants moved for a pre-filing order.
STANDARD OF REVIEW
Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, affidavits, and admissions on file, if any, show “that there is no genuine dispute as to any material fact and the [moving party] is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). Substantive law on an issue determines the materiality of a fact. T.W. Elec. Servs., Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987). Whether the evidence is such that a reasonable jury could return a verdict for the nonmoving party determines the authenticity of the dispute. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The moving party has the burden of establishing the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party shows the absence of a genuine issue of material fact, the nonmoving party must go beyond the pleadings and identify facts which show a genuine issue for trial. Id. at 324.
Special rules of construction apply when evaluating a summary judgment motion: (1) all reasonable doubts as to the existence of genuine issues of material fact should be resolved against the moving party; and (2) all inferences to be drawn from the underlying facts must be viewed in the light most favorable to the nonmoving party. T.W. Elec., 809 F.2d at 630.
DISCUSSION
Plaintiff argues that summary judgment is warranted under the FHA because “[t]he unwelcome conduct from Defendant Miles and lack of prompt action by the other defendants was sufficiently severe and pervasive.” Pl.'s Partial Mot. Summ. J. 3 (doc. 35). Plaintiff cites to the Multnomah County Circuit Court's protective order against Miles in support of his claim, as well as the fact that, after one encounter with Miles, plaintiff was “treated at Good Samaritan Hospital Emergency Room for severe hypertension” and is engaged in ongoing “physiological therapy.” Id.
Guardian Defendants, in contrast, posit the following six arguments in support of their summary judgment motion: (1) absent personal involvement, Brenneke cannot be liable for the torts of a limited liability company; (2) they “cannot be liable, as a matter of law, for tenant-on-tenant harassment” and “any harassment was not due to Plaintiff's disability, or any protected characteristic”; (3) they “acted lawfully in requesting information regarding the nexus between Plaintiff's disability and requested accommodation and because no such nexus exists”; (4) “reasonable accommodations have been made related to his parking requests”; (5) plaintiff's “security requests are unrelated to any disability”; and (6) “there is no question of material fact that [they] did not engage in any form of retaliation against Plaintiff.” Defs.' Cross-Mot. Summ. J. 3-5 (doc. 50).
I. Preliminary Issues
Two preliminary issues must be resolved before reaching the substantive merits of this case. First, except in limited circumstances not applicable here, a plaintiff may not predicate his or her claims on the actions of unnamed third parties. Accordingly, the fact that Guardian Defendants may have permitted “non readily identifiable disabled” tenants to use “public designated signed ‘DISABLED' parking” spaces is immaterial to plaintiff's own reasonable parking accommodation request claim. Am. Compl. ¶¶ 33-37 (doc. 52). Likewise, that other tenants may have suffered harassment by Miles, or that Miles and Sales may be in breach of their lease agreement based on Sales' undisclosed income as a nanny, is insufficient to establish an FHA violation in regard to plaintiff's claim of tenant-on-tenant harassment, especially absent any documentation related to those facts.
Second, plaintiff's conclusory declaration statements relating to the wrongfulness of defendants' actions under the FHA are insufficient to create a triable issue. See, e.g., Johnson Decl. ¶¶ 4-5 (doc. 58); Pl.'s Misc. Br. ¶ 4 (doc. 72); see also FTC v. Publ'g Clearinghouse, Inc., 104 F.3d 1168, 1171 (9th Cir. 1997) (conclusory, self-serving statements in a brief or declaration that are unsupported by facts or evidence do not create genuine issues for trial); Bogner v. R & B Sys., Inc., 2011 WL 1832750, *3 (E.D. Wash. May 12, 2011) (court “is not bound by [a declarant's] legal conclusions”; disputed issues of material fact can “not [be] created by simply averring that an act ‘was [a legal violation or]' declaring that one's versions of events is ‘consistent' with one's theory of the case . . . declarations [must only be considered] for the facts contained therein”).
II. Brenneke's Status as Company Owner
Under Oregon law, a limited liability company is legally distinct from its officers and members: “A member or manager is not personally liable for a debt, obligation or liability of the limited liability company solely by reason of being or acting as a member or manager.” Or. Rev. Stat. § 63.165(1).
Accordingly, in order for a claim to proceed against a limited liability company's officers or members, it must allege personal wrongdoing on behalf of those officers or members. Cortez v. Nacco Material Handling Grp., Inc., 356 Or. 254, 264-75, 337 P.3d 111 (2014). This rule is so steadfast that the inverse is also true. Cf.L.J. Gibson, Beau Blixseth v. Credit Suisse AG, 2016 WL 4033104, *21 (D. Id. July 27, 2016) (“[a]n individual member of a limited liability company lacks standing to pursue individual claims against third parties when those injuries are derivative of the limited liability company's injuries”).
Here, Brenneke has submitted unrefuted, sworn testimony reflecting that he has: (1) never met plaintiff or interacted with him in anyway; (2) never directed any employee, or any other person, to harass plaintiff; and (3) not been personally involved in any of the decisions concerning plaintiff's requests for accommodation. Brenneke Decl. ¶¶ 3-6 (doc. 49). Indeed, plaintiff does not dispute that Brenneke's purported liability stems exclusively from his ownership interest in Guardian Management and Guardian Real Estate Services, both of which are organized as limited liability companies. See, e.g., Pl.'s Resp. to Various Pleadings 9 (doc. 57). In light of these undisputed facts, Brenneke is entitled to summary judgment regarding all claims asserted against him.
III. Fair Housing Act Analysis
The FHA is “a comprehensive open housing law, ” the purpose of which is to provide for “fair housing throughout the United States.” Jones v. Alfred H. Mayer Co., 392 U.S. 409, 413 (1968); 42 U.S.C. § 3601. This statute makes it 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 service or facilities in connection with such dwelling because of a handicap.” 42 U.S.C. § 3604(f)(2) (as amended by Pub. L. No 100-430, 102 Stat. 1619 (1988)).
A. Tenant-on-Tenant Harassment
As an initial matter, Guardian Defendants maintain that plaintiff's tenant-on-tenant harassment claim must be dismissed because, although the “Ninth Circuit does not appear to have addressed” this issue, “the Second Circuit has held that it is not cognizable absent something beyond the lease agreement.” Defs.' Cross-Mot. Summ. J. 6 (doc. 50) (citing Francis v. KingsPark Manor, Inc., 992 F.3d 67 (2d Cir. 2021)).
Guardian Defendants are correct that, pursuant to a tenant-based FHA deliberate indifference theory, the Second Circuit has concluded that “the employer-employee relationship differs from the landlord-tenant relationship in important ways” to ultimately deny landlord liability absent a showing of both “substantial control over the alleged harasser and the context in which the harassment occurs.” Francis, 992 F.3d at 75-78. However, the Eighth Circuit, as well as a number of district courts, have allowed tenant-on-tenant harassment claims to proceed under the premise that the FHA and Title VII afford corollary protections. In these cases, the presence of a lease agreement may be sufficient to establish the requisite third-party control.
Specifically, in Neudecker, the Eighth Circuit relied on federal authority to hold that a supervisor may be liable for one tenant's disability-related harassment of another tenant. Neudecker v. Boisclair Corp., 351 F.3d 361, 364-65 (8th Cir. 2003), Likewise, in Fahnbulleh, the United States District Court for the District of Maryland resolved that the FHA authorized hostile-environment sexual-harassment claims against a landlord or property manager based on the Fourth Circuit's recognition that Title VII and the FHA “share the same central ‘anti-discrimination objectives, '” explicitly rejecting the defendant's claim that relief should be limited to circumstances where “the landlord's agents participate in or encourage the harassment.” Fahnbulleh v. GFZ Realty, LLC, 795 F.Supp.2d 360, 363-65 (D. Md. 2011); see also Reeves v. Carrollsburg Condo. Unit Owners Ass'n, 1997 WL 1877201, *6-8 (D.D.C. Dec. 18, 1997) (homeowners association could be liable for tenant-on-tenant sexual and racial harassment under the FHA based on the terms of the bylaws and the fact that “Title VII and Title VIII share the same purpose”); Bradley v. Carydale Ents., 707 F.Supp. 217, 223-24 (E.D. Va. 1989) (landlord could be liable for tenant-on-tenant racial harassment under the Civil Rights Act and Virginia Fair Housing Law based on allegations that he “fail[ed] to investigate and resolve her complaint of racial harassment, ” because, “if proven, [it would have] abridged plaintiff's right to enforce her lease”).
Like the Fourth Circuit, the Ninth Circuit has applied Title VII discrimination analyses when examining FHA claims. Gamble v. City of Escondido, 104 F.3d 300, 304 (9th Cir. 1997). And courts from within the Ninth Circuit have analyzed FHA hostile housing environment claims grounded in harassment by other residents. See, e.g., McGee v. Poverrelo House, 2021 WL 3602157, *21-23 (S.D. Cal. Aug. 13, 2021).
At a minimum, the aforementioned precedent demonstrates that this issue is neither settled nor adequately briefed by either party. At most, Ninth Circuit jurisprudence seems to suggest that landlords may be held liable under the FHA for tenant-on-tenant harassment under certain circumstances depending on the terms of the lease agreement, just as employers in the Title VII context sometimes have the duty to control the work environment to protect employees from harassment by non-employees. Thus, while hostile housing environment claims in this context have been far from frequent, the Court declines to grant summary judgment in favor of Guardian Defendants on the basis that such claims are not actionable under the FHA absent a showing of substantial control over the tenant harasser and underlying circumstances.
For the limited purposes of analyzing the parties' cross-motions, the Court adopts the prima facie elements articulated in Neudecker and the FHA regulations. To proceed with a hostile living environment claim, the plaintiff must demonstrate: (1) he is a qualified individual with a disability; (2) he was subject to unwelcome harassment; (3) the harassment was based on his disability or request for accommodation; (4) the harassment was sufficiently severe or pervasive to alter the plaintiff's living conditions and create an abusive environment; and (5) either the harassment was committed by a landlord or his agent/employee, or the landlord knew or should have known of the third-party harassment and had the power to correct it. Neudecker, 351 F.3d at 364-65; 24 C.F.R. §§ 100.600, 100.7. The latter is determined by “the extent of the [the landlord's] control or any other legal responsibility the [landlord] may have with respect to the conduct of such third-party.” 24 C.F.R. § 100.7.
No reasonable dispute exists in the case at bar as to the first and second elements. As addressed in greater detail below, although it is unclear which impairments Guardian Defendants reasonably failed to accommodate, plaintiff has adequately established he is a person with a disability, and his pleadings indicate a number of underlying diagnoses including diabetes, lumbar spine stenosis and spondylolisthesis, degenerative disc disease, sensorineural hearing loss, bipolar disorder, and borderline personality disorder. Am. Compl. Ex. A (doc. 52). Further, plaintiff obtained a protective order against Miles, establishing that his harassment is clearly unwelcome. Pl.'s Partial Mot. Summ. J. Exs. A, E (doc. 35).
Plaintiff's claim, however, fails at the third and fourth elements. Precedent makes clear that tenant behavior does not fall within the ambit of the FHA if it is “mean-spirited, but . . . not inherently discriminatory.” See Neudecker v. Boisclair Corp., 2005 WL 1607409, *2 (D. Minn. July 7, 2005) (granting summary judgment on remand in regard to incidents of harassment that were “unrelated to [the plaintiff's] OCD”).
Critically, beyond noting his own age and wheelchair-status, plaintiff has not set forth any evidence surrounding his interactions with Miles that would allow a factfinder to reasonably conclude the harassment was based on disability, or sufficiently severe or pervasive. The only details surrounding Miles' wrongful actions comes from complaint letters plaintiff wrote to Uptown Tower, which are attached to plaintiff's various briefs and declarations. From these letters, when coupled with plaintiff's pleadings, the Court gleans that Uptown Tower is “a rental community for the elderly and disabled, ” and Miles is a 58-year old with PTSD and a drug problem. Am. Compl. ¶ 11 (doc. 52); see also McGee, 2021 WL 3602157 at *21 (court must consider the “social context” of a housing complex “in determining whether [another tenant's] alleged harassment rose to the level of being ‘sufficiently severe and pervasive'”) (citing Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998)).
To the extent plaintiff pursues analogous claims against De Groot or Rudhe, there is likewise a dearth of evidence that would allow a factfinder to reasonably conclude the harassment was based on disability, or sufficiently severe or pervasive. The sole factual allegation reflects that plaintiff has obtained a Multnomah County protective order against De Groot. Johnson Decl. ¶ 2 (doc. 59, case no. 3:21-cv-00685-JR). Therefore, the Court's analysis surrounding Miles applies equally to De Groot and Rudhe.
The four incidents involving Miles are as follows: the first occurred in October 2019, when “there was a confrontation with a tenant known as ‘Garret' who threatened [plaintiff] with bodily harm” during a cooking class; the second and third in December 2019, when Miles “confronted” plaintiff in the lobby “by stating that [plaintiff] was not allowed near him and would still beat shit” out of plaintiff “if there was no camera, ” and later threatening plaintiff and giving him “the finger”; and the fourth in February 2020 when Miles walked past plaintiff in the lobby, which prompted an amendment to the protective order to allow Miles to be within ten feet of plaintiff for the purposes of accessing his apartment, even though he otherwise continued to present an immediate danger. Pl.'s Partial Mot. Summ. J. Exs. A, E (doc. 35); Johnson Decl. Exs. A-C (doc. 59). In other words, there is no indication that plaintiff's physical or mental conditions played any role in his negative interactions with Miles.
Plaintiff also references an incident in his recent HUD complaint where an unnamed tenant “attempted to run over [plaintiff] with his vehicle.” Pl.'s Misc. Br. Ex. 1, at 4 (doc. 65). Given that plaintiff does not assert any ensuing consequences related to his protective order against Miles, despite the fact that this event occurred in April 2021, the Court presumes these facts pertain to a different tenant.
Given the context of plaintiff's living situation - which involves subsidized housing for people in need, some of whom are suffering from and living with mental health issues - coupled with the fact that the individual who allegedly harassed plaintiff in no way can be considered an agent of Guardian Defendants, the threshold for “sufficiently severe and pervasive” harassment is not clear cut. Nevertheless, viewing the record in the light most favorable to plaintiff in this unique context, the Court cannot conclude that Miles' harassment created a hostile housing environment. See Westendorf v. W. Coast Contractors of Nev., Incorp., 712 F.3d 417, 422 (9th Cir. 2013) (affirming the district court's grant of summary judgment in favor of the defendant on a Title VII hostile work environment claim because four “crude and offensive remarks, ” including comments about breast sizes, tampons and orgasms, and gender-based stereotypes, were not “sufficiently severe or pervasive”); see also McGee, 2021 WL 3602157 at *22 (four sex-based comments by another tenant within a 10 month period at a women's shelter were inadequate to establish the fourth prima facie element).
The Court is cognizant of the fact that police, and ultimately the Multnomah County Circuit Court, were involved in plaintiff's relationship with Miles; however, due to the dearth of facts and evidence surrounding those proceedings, they are insufficient to allow a reasonable juror to infer the existence of a prima facie case. While not dispositive, the record also reflects that Guardian Defendants responded to at least some of plaintiff's complaints related to Miles and requested additional information, but there is no indication plaintiff complied with those requests. Pl.'s Partial Mot. Summ. J. Exs. B-C (doc. 35); Paine Decl. ¶ 5 (doc. 48). As addressed in greater detail below, Guardian Defendants were legally permitted to require documentation of plaintiff's disability and how it related to the requested accommodation (i.e., Miles' eviction). Therefore, plaintiff's summary judgment motion should be denied, and Guardian Defendants' motion should be granted as to this claim.
B. Reasonable Accommodation Requests
FHA 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 enjoy the dwelling.” 42 U.S.C. § 3604(f)(3)(B). To establish a prima facie case for failure to make a reasonable accommodation, the plaintiff must show that: (1) he or she suffers from a “handicap” as defined by 42 U.S.C. § 3602(h); (2) the defendants knew or should reasonably be expected to know of the plaintiff's handicap; (3) the accommodation of the handicap “may be necessary” to afford the plaintiff an equal opportunity to use and enjoy the dwelling; (4) the accommodation is reasonable; and (5) the defendants refused to make such accommodation. DuBois v. Ass'n of Apartment Owners of 2987 Kalakaua, 453 F.3d 1175, 1179 (9th Cir. 2006).
Here, it is undisputed plaintiff has a mobility disability and that Guardian Defendants knew of that disability. It is similarly undisputed that Guardian Defendants must comply with the FHA. The Court must therefore resolve whether there is a genuine dispute concerning the reasonableness of the requested accommodations and Guardian Defendant's purported refusals to furnish plaintiff with a parking space, personal air purifier, and increased building security.
Although plaintiff has been diagnosed with a number of conditions, both the record before the Court, as well as the public record more generally, reflect only that Guardian Defendant knew of his physical impairments. Pl.'s Partial Mot. Summ. J. Ex. C (doc. 35); see also Johnson v. Guardian Mgmt., 535 F.Supp.3d 1004, 1007 (D. Or. Apr. 26, 2021) (denoting that plaintiff had a qualifying disability within the meaning of the FHA related to his back condition and associated health problems, including, “falls, memory issues, [and] seizures”).
i. Parking Space Assignments
Plaintiff's parking space claim fails because Guardian Defendants never refused to make the requested accommodation. That is, Guardian Defendants provided plaintiff with a parking space mutually agreed upon as accessible to him. As the dispositive pleading acknowledges, plaintiff reached a settlement agreement with Guardian Defendants regarding his reasonable parking accommodation claim following the filing of a BOLI complaint. See, e.g., Am. Compl. ¶ 36 (doc. 52). As part of that agreement, plaintiff would be assigned a parking space in Uptown Tower's commercial lot, free of charge; in exchange, plaintiff stipulated that “the commercial space will meet his accessibility needs.” Paine Decl. Ex. A (doc. 62); see also Johnson Decl. ¶ 9 (doc. 68) (“I never requested to be assigned an ADA public designated handicapped/disabled parking space which would be unlawful and morally irresponsible to the rights of other disabled persons”).
Plaintiff's present contention that Guardian Defendants are in breach because they refused to furnish the next available parking space has already been rejected by this Court. See Johnson v. Brenneke, 2021 WL 3113501, *1 (D. Or. July 22, 2021) (“[d]efendants have submitted unrefuted evidence that Plaintiff was offered the parking space at issue in a letter from Defendant Simonson and that Plaintiff did not respond to the offer letter”). In particular, there are currently no available accessible parking spaces at Uptown Towers. Simonson Decl. ¶ 4 (doc. 9, case no. 3:21-cv-00871-JR). Uptown Towers is in control of two such spots, one in its residential lot and the other in its commercial lot, and both are assigned to qualifying tenants. Paine Decl. ¶ 4 (doc. 62). On two occasions, plaintiff was offered the next available space and effectively “turn[ed] down the offer.” Simonson Decl. ¶ 7 & Exs. A-B (doc. 9, case no. 3:21-cv-00871-JR). Although the first of the spaces presented was inadvertently next to Miles, the second was not. Simonson Decl. ¶¶ 6, 8-9 (doc. 9, case no. 3:21-cv-00871-JR). In sum, there is simply no evidence that plaintiff was denied a parking space, or that an accessible space was being unlawfully assigned to a non-tenant or nondisabled tenant.
Finally, to the extent plaintiff alleges FHA retaliation based on the offer of a parking space next to Miles, he has failed to provide any evidence of discriminatory or retaliatory intent beyond his own bare assertions. See Munoz v. Mabus, 630 F.3d 856, 865 (9th Cir. 2010) (articulating the standard to establish pretext). The undisputed evidence of record reflects Guardian Defendants did not (and still do not) apprehend a relationship between Miles' eviction and plaintiff's mobility disability and, as discussed in Section B(iii), reasonably believed that inquiring into the nexus between the two was permitted by guidance from HUD and the Department of Justice. Pl.'s Partial Mot. Summ. J. Ex. C (doc. 35). Guardian Defendants' motion for summary judgment should be granted as to plaintiff's reasonable parking accommodation claim.
ii. Air Purifier and Additional Security Measures
“[A]n accommodation is reasonable under the FHAA when it imposes no fundamental alteration in the nature of the program or undue financial or administrative burdens.” Giebeler v. M & B Assocs., 343 F.3d 1143, 1157 (9th Cir. 2003) (internal citation and quotations omitted). The plaintiff bears the burden of showing that a requested accommodation “seems reasonable on its face.” Id. at 1156. If the plaintiff meets this initial burden, the defendant may rebut this presumption by showing that “the accommodation would cause undue hardship in the particular circumstances.” Kuhn v. McNary Estates Homeowners Ass'n, Inc., 228 F.Supp.3d 1142, 1147 (D. Or. 2017).
In sum, a defendant is only obligated to provide an accommodation if it is both necessary and reasonable. Giebeler, 343 F.3d at 1148; see also Bronk v. Ineichen, 54 F.3d 425, 428-29 (7th Cir. 1995) (“some accommodations may not be reasonable under the circumstances and some may not be necessary to the laudable goal of inclusion. The requirement of reasonable accommodation does not entail an obligation to do everything humanly possible to accommodate a disabled person; cost (to the defendant) and benefit (to the plaintiff) merit consideration . . . the concept of necessity requires [a] showing that the desired accommodation will affirmatively enhance a disabled plaintiff's quality of life by ameliorating the effects of the disability”).
Plaintiff has not met his initial burden as to either the air purifier or increased security. Concerning the former, the uncontroverted evidence of record demonstrates that Guardian Defendants provided plaintiff with a high efficiency particulate air filter and believed their policy generally precluded the purchase of personal property, such as an individual air purifier, for a tenant. Paine Decl.¶¶ 6-8 (doc. 48). Regarding the latter, Guardian Defendants indicated that new security cameras “would likely be an undue financial or administrative burden.” Pl.'s Partial Mot. Summ. J. Ex. C (doc. 35). In other words, the nexus between the requested accommodations and plaintiff's disability is unclear, Guardian Defendants have provided nondiscriminatory reasons for their actions, and plaintiff has set forth no evidence of pretext. Guardian Defendants' motion for summary judgment should be granted as to plaintiff's reasonable accommodation claims premised on the denial of an individual air purifier and the failure to implement additional security measures.
Across his various filings, plaintiff also asserts private security should be hired at Uptown Tower or that Guardian Defendants should procure a police officer resident. Even if such measures were requested, they would fail for the same reasons.
In his recent HUD complaint, plaintiff denotes the requests for additional security were “to alleviate the symptoms” of unspecified “mental disabilities.” Pl.'s Misc. Br. Ex. 1, at 4 (doc. 65). As addressed herein, there is no evidence that the underlying basis of plaintiff's request was communicated to Guardian Defendants.
iii. Medical Verification Requirement
It is well-established that “there must be a ‘causal link' between the requested accommodation and the plaintiff's disability.” Howard v. HMK Holdings, LLC, 988 F.3d 1185, 1191 (9th Cir. 2021); see also Joint Statement of the Department of Housing and Urban Development and the Department of Justice, Reasonable Accommodations Under the Fair Housing Act (May 17, 2004), available at https://www.justice.gov/sites/default/files/crt/legacy/2010/12/14/joint statement ra.pdf (“in response to a request for a reasonable accommodation, a housing provider may request reliable disability-related information that . . . shows the relationship between the person's disability and the need for the requested accommodation”). Thus, where evidence concerning the requisite nexus between the plaintiff's medical condition and the requested accommodation is lacking, the defendant is under “no obligation” to provide the accommodation and the FHA “inquiry ends.” Howard, 988 F.3d at 1190-91.
Consistent with these standards, plaintiff's own evidence reveals that, if “the disability-related need for the requested accommodation or modification is not known or obvious, ” a housing provider “can ask an applicant/tenant to provide documentation from a qualified third party (professional), that the applicant or tenant has a disability that results in one or more functional limitation, ” as well as “documentation stating that the requested accommodation or modification is necessary because of the disability, and that it will allow the applicant/tenant access to the unit and any amenities or services included with the rental equally to other tenants.” Johnson Decl. Attach. pg. 2 (doc. 66).
Moreover, plaintiff's reliance on other federal authority is misplaced. Contrary to plaintiff's assertion, neither Giebeler nor 24 C.F.R. § 100.202(c) preclude the nexus requirement. Indeed, Howard relied on Giebeler in recently reaffirming the need for a disabled person to demonstrate some nexus between the alleged disability and the requested accommodation. See Howard, 988 F.3d at 1191 (“Giebeler [is] instructive [and provides] an example of what causality looks like”). Guardian Defendants' motion for summary judgment should be granted as to plaintiff's medical verification claim.
C. Denial of Access to Bulletin Board
A prima facie showing of FHA retaliation requires the plaintiff to prove: (1) he or she was engaged in protected activity; (2) he or she suffered an adverse action in the form of coercion, intimidation, threats, or interference; and (3) there was a causal link between the two. DuBois, 453 F.3d at 1180. Plaintiff's claim related to the bulletin board fails for three reasons. First, plaintiff presented no evidence of an adverse action. Rather, the unrefuted evidence reflects that “[p]laintiff was never denied the use of any bulletin board at Uptown Towers.” Paine Decl. ¶ 9 (doc. 48). Notably, there are “several bulletin boards in the lobby that residents can post on, ” including plaintiff. Id. Although there are “two locked cases next to the elevators at Uptown Towers” to display “HUD required documentation [and] Portland Housing Bureau materials[, ] residents are not permitted to put information” in those cases. Id. at ¶ 10.
Plaintiff's repeated claims that Paine does not have personal knowledge about his agreement with former office manager Genaro Lopez concerning the bulletin board ignores the factual content of Paine's declaration.
Second, plaintiff has not shown that the actions allegedly taken by Guardian Defendants were in any way motivated by his FHA complaint or request for accommodations. See DuBois, 453 F.3d at 1180 (affirming the grant of summary judgment in favor of the defendants as to the plaintiff's FHA retaliation claim in part because of the plaintiff's failure to show a “causal link” between his protected activity and the defendants' adverse action). Lastly, Guardian Defendants have provided a legitimate, nondiscriminatory reason to the extent plaintiff alleges the denial of his request to post in any locked bulletin board, and plaintiff has not furnished any argument or evidence demonstrating that this reason was pretext for a discriminatory or retaliatory motive. Thus, Guardian Defendants' motion for summary judgment should be granted.
IV. Motion for a Pre-Filing Order
Guardian Defendants seek a prefiling order because “plaintiff has demonstrated a pattern of frivolous and harassing filings.” Defs.' Pre-Filing Req. 5 (doc. 53). Guardian Defendants point to plaintiff's numerous motions filed in this case, along with his six separate FHA lawsuits: these three consolidated cases “alleg[ing] the same fact pattern involving defendants' failure to grant plaintiff's accommodation request to evict other tenants, ” a fourth lawsuit “alleg[ing] the denial of a reasonable accommodation request involving ‘pre REAC' inspections” (case no. 3:21-00947-JR), a fifth lawsuit alleging denial of various reasonable accommodation requests made by plaintiff and another tenant (case no. 3:21-01439-JR), and a sixth lawsuit based on Guardian Defendants' denial of plaintiff's request for his spouse to qualify as a live-in aid (case no. 3:19-00485-SI). Id. at 4-6.
Plaintiff has representation in regard to the sixth suit and is on the precipice of proceeding to trial, such that Guardian Defendants' “motion concerns only plaintiff's filings in the pro se actions and future pro se complaints.” Defs.' Pre-Filing Req. 3 (doc. 53).
Pursuant to the All Writs Act, 28 U.S.C. § 1651(a), district courts can regulate the legal actions of vexatious litigants by restricting their ability to file suit without first obtaining leave. De Long v. Hennessey, 912 F.2d 1140, 1147 (9th Cir. 1990). However, a pre-filing order imposes “a serious burden” on a potential litigant. Ringgold-Lockhard v. L.A. Cty., 761 F.3d 1057, 1062 (9th Cir. 2014). Accordingly, out of regard for the constitutional underpinnings of the right to court access, “pre-filing orders should rarely be filed, ” and only if courts comply with certain procedural and substantive requirements. De Long, 912 F.2d at 1145-48; see alsoRinggold-Lockhard, 761 F.3d at 1062 (articulating “five substantive factors to determine whether a party is a vexatious litigant”).
In this case, Guardian Defendants' motion provided plaintiff with adequate notice and opportunity to respond. Molski v. Evergreen Dynasty Corp., 500 F.3d 1047, 1058-59 (9th Cir. 2007). However, the substantive requirements for a pre-filing order are not met.
Federal courts have held that the “inordinate number” requirement is met based on the filing of substantially more than 20 lawsuits. See Committe v. Or. State Univ., 2018 WL 4623159, *4 (D. Or. Sept. 26, 2018) (collecting cases); see also Committe v. AACSB Int'l, 2020 WL 6471723, *4 (D. Or. Sept. 8), adopted by 2020 WL 6471689 (D. Or. Nov. 3, 2020) (finding this standard met where the plaintiff “filed a total of 28 near identical lawsuits”). Likewise, courts have issued pre-filing orders where the plaintiff repeatedly pursues claims that have been rejected more than once on their legal merits. See AASCB Int'l, 2020 WL 6471723 at *4 (granting a pre-filing order where the plaintiff “had repeatedly been informed that certain claims - such as those alleging age discrimination under 42 U.S.C. § 1983 - fail as a matter of law, yet plaintiff continues to assert such claims in each successive suit”); see also Phelps v. Lockheed Missiles & Space, Co., Inc., 1993 WL 186639, *2 (9th Cir. June 1, 1993) (affirming the entry of a pre-filing order against a plaintiff's whose repeated filings were facially “frivolous and incomprehensible”).
Plaintiff's six lawsuits against Guardian Defendants in the District of Oregon neither constitute an “inordinate amount, ” nor have the claims in those cases been substantively dismissed. Even if the numerical threshold were reached in this case, plaintiff's claims are not “patently meritless” enough to justify a pre-filing order. Ringgold-Lockhart, 761 F.3d at 1064. As discussed herein, many of his claims fail not on their legal merits, but due to plaintiff's failure to carry his factual burden at summary judgment. For this reason, the present case is distinguishable from the precedent on which Guardian Defendants rely - i.e., Moy v. United States, 906 F.2d 467 (9th Cir. 1990). Pre-filing orders are a rare exception to the rule of open access to the courts, and, though such an order as to this plaintiff may well be appropriate in future, the Court declines to apply the exception at this stage of the proceedings.
RECOMMENDATION
For the reasons stated herein, Plaintiff's Partial Motion for Summary Judgment (doc. 35) should be denied and Guardian Defendants' Cross Motion for Summary Judgment (doc. 50) should be granted. Guardian Defendants' requests for a prefiling order (doc. 53) and oral argument should be denied.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment or appealable order. The parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the court. Thereafter, the parties shall have fourteen (14) days within which to file a response to the objections. Failure to timely file objections to any factual determination of the Magistrate Judge will be considered as a waiver of a party's right to de novo consideration of the factual issues and will constitute a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to this recommendation.