Opinion
Civil No. 3:04-CV-1847-H.
March 30, 2005
MEMORANDUM OPINION AND ORDER
Before the Court are Defendant Walden Properties' Motion to Dismiss, filed January 26, 2005; Plaintiff's Response, filed February 15, 2005; and Defendant's Reply, filed March 2, 2005. For the following reasons, Defendant's Motion is GRANTED.
Although Plaintiff's Response includes evidence outside the pleadings, the Court excludes such evidence from its consideration of Defendant's motion. See FED. R. CIV. P. 12(b)(6).
Plaintiff, who is proceeding pro se, brings this action for discrimination and retaliation in violation of a variety of federal and state laws against two defendants: Walden Properties and Cliff's Check Cashing Store. The majority of Plaintiff's claims stem from the alleged improper forgery of money orders by an employee of Walden Properties at Cliff's Check Cashing Store. Plaintiff alleges that those money orders were to be used as rent payments and that their forgery and subsequent theft by Walden Properties employees caused Plaintiff to be deprived of his housing and related services. Plaintiff also alleges a number of other violations of state and federal law. Defendant Walden Properties filed a motion to dismiss Plaintiff's claims for failure to state a claim under Federal Rule of Procedure 12(b)(6).
I. Standard
In considering a motion to dismiss a complaint for failure to state a claim, the Court must accept as true the non-movant's well-pleaded factual allegations and any reasonable inferences to be drawn from them. See Tuchman v. DSC Communications Corp., 14 F.3d 1061, 1067 (5th Cir. 1994). "Federal Rule of Civil Procedure 8(a)(2) . . . provides that a complaint must include only 'a short and plain statement of the claim showing that the pleader is entitled to relief.'" Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002) (quoting FED. R. CIV. P. 8(a)(2)).
Dismissal for failure to state a claim is not favored by the law. Mahone v. Addicks Util. Dist., 836 F.2d 921, 926 (5th Cir. 1988). It is less favored where a plaintiff is proceeding pro se, as pro se filings are to be construed liberally. See Covington v. Cole, 528 F.2d 1365, 1370 (5th Cir. 1976). A plaintiff's complaint "should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957); see Scheuer v. Rhodes, 416 U.S. 232, 236 (1974) ("The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims."); Adolph v. Federal Emergency Management Agency, 854 F.2d 732, 735 (5th Cir. 1988) (The court may dismiss a claim under Rule 12(b)(6) only if "it appears to a certainty that no relief can be granted under any set of facts provable in support of its allegations or if the allegations, accepted as true, do not present a claim upon which relief can be legally obtained.") However, "there are times when a court should exercise its power to dismiss a complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure." Mahone, 836 F.2d at 927.
II. Analysis
A. Walden Properties
Plaintiff claims that Walden Properties violated the following federal statutes: Civil Rights Act of 1964, 42 U.S.C. § 2000 et seq. (West 2004) ("Civil Rights Act"); Title VII, 42 U.S.C. § 2000e-2 (West 2004) ("Title VII"); Fair Housing Act, 42 U.S.C. § 3604 (West 2004) ("FHA"); and 42 U.S.C. §§ 1981, 1982, and 1983 (West 2004). Plaintiff also claims that Walden Properties violated Plaintiff's constitutional rights under the Fourth Amendment. Plaintiff's federal law claims against Walden Properties are addressed in turn.
The Court, liberally interpreting Plaintiff's Complaint, assumes that Plaintiff intended to bring some of his claims under §§ 1981 and 1982.
1. Civil Rights Act and Title VII
Plaintiff asserts a claim of discrimination under the Civil Rights Act. However, Plaintiff alleges no discrimination in any public accommodation, 42 U.S.C. § 2000a, public facility, id. § 2000b, public education, id. § 2000c, federally assisted program, id. § 2000d, or equal employment opportunity. Id. § 2000e. Even under the most liberal reading of the Complaint, Plaintiff alleges no viable claim under the Civil Rights Act whatsoever. Accordingly, Defendant's Motion to Dismiss Plaintiff's Civil Rights Act, Title VII, and discriminatory retaliation claims is GRANTED.
Plaintiff claims retaliation repeatedly throughout his Complaint. However, Plaintiff never states what protected activity prompted the alleged retaliations. Accordingly, Plaintiff failed to state a cause of action for retaliation under any legal theory.
2. Sections 1981, 1982, and Fair Housing Act
A prima facie case in an intentional discrimination case arising under §§ 1981, 1982, or the FHA requires that racial animus was a significant factor in the ultimate decision. See Wicks v. Miss. State Employment Servs., 41 F.3d 991, 996 (5th Cir. 1995) (§ 1981); Woods-Drake v. Lundy, 667 F.2d 1198, 1202 (5th Cir. 1982); Marable v. H. Walker Associates, 644 F.2d 390, 395 (5th Cir. 1981). The Court evaluates discrimination claims that rely on circumstantial evidence, including insurance discrimination claims arising under §§ 1981, 1982, and § 3604, using the burden-shifting approach from McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Simms v. First Gibraltar Bank, 83 F.3d 1546, 1555 (5th Cir. 1996). None of Plaintiff's allegations whether analyzed individually or collectively evince an intent on the part of Defendant Walden Properties to discriminate against Plaintiff or that race was a motivating factor in any decision taken by any Walden Properties employee. Indeed, Plaintiff's Complaint alleges facts that support a conclusion that factors other than race were motivating factors. For instance, Plaintiff alleges that Dianne E. Smith's ("Smith") "drug problem is the reason why she forged the money orders" (Pl.'s Orig. Pet. at 6), and that Mary Harrington treated Plaintiff differently because he was married to Smith. ( Id. at 9.)
Although Plaintiff may allege disparate impact to state an FHA claim, Hanson v. Veterans Admin., 800 F.2d 1381, 1386 (5th Cir. 1986) ("A finding of intentional racial discrimination is necessary for recovery against a defendant under the Civil Rights Act. . . . However, a violation of section 804 of the Fair Housing Act [§ 3604] may be established not only by proof of discriminatory intent, but also by a showing of a significant discriminatory effect."), Plaintiff has failed to raise such an allegation or provide any factual basis for such a theory of recovery. Accordingly, Plaintiff's claim is construed as one solely a disparate treatment/discriminatory intent claim. See Texas v. Crest Asset Mgmt., Inc., 85 F. Supp. 2d 722, 728 (5th Cir. 2000).
In the instant case therefore, Plaintiff has alleged no facts which would directly or circumstantially infer discrimination based on Plaintiff's protected status as a black male. Plaintiff only concludes that he knows of no one else treated this way. ( See, e.g., Pl.'s Orig. Pet. at 3.) However, these conclusions do not state fact or establish that he was treated less favorably than someone not of a protected class, let alone discriminated against because he is a black male. Some nexus between the actions taken and the Plaintiff's race must be established; bald assertions will not suffice. See Moore v. Eli Lilly Co., 990 F.2d 812, 819 (5th Cir. 1993), cert. denied, 510 U.S. 976. See also Roberson v. Alltel Info. Servs., 373 F.3d 647, 654 (5th Cir. 2004) (noting that plaintiff's subjective belief that prohibited discrimination was a motivating factor is "insufficient to create an inference of the defendants' discriminatory intent.")
Accordingly, Defendant's Motion to Dismiss Plaintiff's § 1981 and FHA claims must be GRANTED.
3. Section 1983 and Constitutional Claims
Constitutional violations committed by the government or under "color of law" are vindicated through § 1983. See McKinney v. Irving Indep. Sch. Dist., 309 F.3d 308, 312 (5th Cir. 2002). Plaintiff alleges that Defendant hired four police officers, who then established curfews not indicated on the lease and refused to arrest allegedly known drug dealers. ( Id. at 26-27.) Plaintiff claims his freedom of movement was violated by these actions. ( Id. at 27.) Plaintiff fails to allege how the police officers' alleged imposition of a curfew unique to the apartment complex was a government action. See Lewis v. Woods, 848 F.2d 649, 652 (5th Cir. 1988). Finally, Plaintiff fails to allege how the failure to arrest drug dealers deprived Plaintiff of his constitutional rights. Accordingly, Defendant's Motion to Dismiss Plaintiff's freedom of movement claim is GRANTED.
Plaintiff also claims his Fourth Amendment and privacy rights were violated. ( Id.) Plaintiff merely alleges that these rights were violated, but not how they were violated. Therefore, Plaintiff has failed to state a Fourth Amendment or privacy claim. Accordingly, Defendant's Motion to Dismiss Plaintiff's Fourth Amendment and right to privacy claims is GRANTED.
B. Cliff's Check Cashing Store
Plaintiff's Original Petition only makes a passing allegation of constitutional violations committed by Cliff's Check Cashing Store: "Check Cashing Store has been discriminated against by Defendant for refusing to help Plaintiff and athorties [sic] find out who in their company participated in [the alleged crime of cashing a money order without the original receipt]. I know of no other who has been treated this way." (Pl.'s Orig. Pet. at 29-30.) The Court has the duty to sua sponte consider its subject matter jurisdiction over a case, even if not raised by the parties. Dominguez-Cota v. Cooper Tire Rubber Co., 396 F.3d 650, 652 n. 1 (5th Cir. 2005) (per curiam). Generously interpreting Plaintiff's statements as stating a claim that Cliff's Check Cashing Store discriminated against Plaintiff, the Court finds this solitary accusation insufficient to allege a constitutional violation under the Civil Rights Act of 1964, 42 U.S.C. § 2000 et seq. Therefore, the Court lacks subject matter jurisdiction over Plaintiff's claims against Cliff's Check Cashing Company. Accordingly, the Court sua sponte DISMISSES Plaintiff's federal claims against Cliff's Check Cashing Company. Marshall v. Gibson's Prods., Inc. of Plano, 584 F.2d 668, 671-72 (5th Cir. 1978) ("It is incumbent on a court of the United States, whether trial or appellate, to dismiss an action whenever it appears that subject matter jurisdiction is lacking, and the court must do so sua sponte if the parties have not brought the issue to the attention of the court.")
C. Plaintiff's State Law Claims
Plaintiff's remaining claims do not state a claim under federal law.
Plaintiff has alleged state law violations including: embezzlement, "false pretenses," theft, violation of the Texas Deceptive Trade Practices Act, slander, defamation of character, violation of the rules and regulations of the Texas Apartment Association, intentional infliction of emotional distress, and violations of the Texas Property Code.
Having dismissed all of Plaintiff's federal law claims, the Court has broad discretion to decline to exercise supplemental jurisdiction over the pendent state law claims. 28 U.S.C. § 1367(c)(3); Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n. 7 (1988); United Mine Workers v. Gibbs, 383 U.S. 715, 726 (1966). In the interests of comity, judicial economy, and convenience, the Court does decline to retain jurisdiction over Plaintiff's state law claims. United Mine Workers, 383 U.S. at 726. The Court finds that in doing so, no undue burden will be placed upon the parties, since Plaintiff is proceeding in forma pauperis. Accordingly, Plaintiff's state law claims are DISMISSED.
IV. Conclusion
For the foregoing reasons, Defendant's Motion to Dismiss is GRANTED. Plaintiff's federal law claims are DISMISSED WITH PREJUDICE. Plaintiff's state law claims are DISMISSED WITHOUT PREJUDICE. See TEX. CIV. PRAC. REM. CODE ANN. § 16.064(a)(2); Vale v. Ryan, 809 S.W.2d 324, 327 (Tex.App.-Austin 1991, no writ).
Judgment will be entered accordingly.
SO ORDERED.