Opinion
5:21-CV-418-FL
06-21-2022
ERIC WAYNE YOUNG and WILMA JEAN YOUNG, Plaintiffs, v. LAKE ROYALE PROPERTY OWNERS ASSOCIATION and LAKE ROYALE PRIVATE COMPANY POLICE, Defendants.
ORDER AND MEMORANDUM & RECOMMENDATION
KIMBERLY A. SWANK, UNITED STATES MAGISTRATE JUDGE
This pro se case is before the court on the application [DE #1] by Plaintiffs Eric Wayne Young and Wilma Jean Young to proceed in forma pauperis pursuant to 28 U.S.C. § 1915(a)(1) and for frivolity review pursuant to 28 U.S.C. § 1915(e)(2)(B), the matter having been referred to the undersigned by the Honorable Louise W. Flanagan, United States District Judge. For the reasons set forth below, the court GRANTS Plaintiffs' application to proceed in forma pauperis and RECOMMENDS that Plaintiffs' complaint be dismissed.
IFP MOTION
The standard for determining in forma pauperis status is whether “one cannot because of his poverty pay or give security for the costs . . . and still be able to provide himself and dependents with the necessities of life.” Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339 (1948). Based on the information contained in Plaintiffs' affidavit, the court finds that Plaintiffs have demonstrated appropriate evidence of inability to pay the required court costs. Thus, Plaintiffs' application to proceed in forma pauperis is ALLOWED.
DISCUSSION
I. Background
Plaintiffs seek to sue Defendants for retaliation under Section 818 of the Fair Housing Act, 42 U.S.C. § 3617, and for state torts. (Prop. Compl. [DE #1-2].) Plaintiffs seek $675,000 in compensatory damages and $2,000,000 in punitive damages. (Id. at 3.) The retaliation claim is based on a factual allegation that was expressly not considered by the court's order dismissing Plaintiffs' prior lawsuit, Young v. Lake Royale Prop. Owners Ass'n, No. 5:19-CV-483-FL, 2021 WL 3853258 (E.D. N.C. Aug. 27, 2021). (Prop. Compl. at 1-2.)
II. Standard for Frivolity Review
Notwithstanding the determination that Plaintiff is entitled to in forma pauperis status, the court is required to dismiss all or part of an action found to be frivolous or malicious, which fails to state a claim on which relief can be granted, or which seeks money damages from a defendant immune from such recovery. 28 U.S.C. § 1915(e)(2); Michau v. Charleston County, 434 F.3d 725, 728 (4th Cir. 2006). A case is frivolous if it lacks an arguable basis in either law or fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989). Pro se complaints are entitled to a more liberal treatment than pleadings drafted by lawyers. See White v. White, 886 F.2d 721, 722-23 (4th Cir. 1989). However, the court is not required to accept a pro se plaintiff's contentions as true. Denton v. Hernandez, 504 U.S. 25, 32 (1992). The court is permitted to “pierce the veil of the complaint's factual allegations and dismiss those claims whose factual contentions are clearly baseless.” Neitzke, 490 U.S. at 327. In making the “inherently elastic” frivolity determination, Nagy v. FMC Butner, 376 F.3d 252, 256-57 (4th Cir. 2004), the court may “apply common sense,” Nasim v. Warden., Md. House of Correction, 64 F.3d 951, 954 (4th Cir. 1995).
Rule 8 of the Federal Rules of Civil Procedure requires a complaint to give “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). The statement must give a defendant fair notice of what the claim is and the grounds upon which it rests. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). “A plaintiff must offer more detail . . . than the bald statement that he has a valid claim of some type against the defendant.” Trulock v. Freeh, 275 F.3d 391, 405 (4th Cir. 2001); see also White, 886 F.2d at 723 (affirming district court's dismissal of suit as frivolous where complaint “failed to contain any factual allegations tending to support [plaintiff's] bare assertion”). The complaint must contain “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. While the court must read the complaint carefully to determine if the plaintiff has alleged facts sufficient to support his claims, White, 886 F.2d at 724, the court is not required to act as the pro se plaintiff's advocate or to parse through volumes of documents or discursive arguments in an attempt to discern the plaintiff's unexpressed intent, Williams v. Ozmint, 716 F.3d 801, 805 (4th Cir. 2013).
III. Plaintiffs' Claims
A. Fair Housing Act Retaliation Claim
The Fair Housing Act (FHA) prohibits discrimination “in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection therewith,” on the basis of race, color, religion, national origin, sex, or familial status. 42 U.S.C. § 3604(b). The FHA also makes it unlawful to retaliate against someone based on his exercise of rights protected by the FHA. See 42 U.S.C. § 3617. A private person may seek to enforce this provision by filing a complaint with the Secretary of the United States Department of Housing and Urban Development and proceeding through the administrative process, 42 U.S.C. § 3610, or by filing a civil action in either federal district court or state court, 42 U.S.C. § 3613.
To state a claim for retaliation under § 3617, Plaintiffs must allege facts to support findings that (1) they engaged in protected activity; (2) Defendants were aware of that activity; (3) Defendants took adverse action against them; and (4) “a causal connection existed between the protected activity and the asserted adverse action.” Hall v. Greystar Mgmt. Servs., L.P., 637 Fed.Appx. 93, 98 (4th Cir. 2016) (citing King v. Rumsfeld, 328 F.3d 145, 150-51 (4th Cir. 2003)).
Here, Plaintiffs allege that the defendants from their earlier lawsuit (which included but were not limited to Defendants in the instant action) sent Defendant Lake Royale Private Company Police to effectuate a false arrest of Plaintiff Eric Young on October 7, 2020, and that this was a “retaliatory act.” (Prop. Compl. at 1.) Plaintiffs do not specify what this act was retaliation for. (Prop. Compl. at 1-3.)
Plaintiffs further emphasize that the retaliatory act occurred two days after a court-mandated deadline of October 5, 2020, in Plaintiffs' earlier lawsuit. (Prop. Compl. at 1.) Plaintiffs offer no additional factual allegations regarding this alleged retaliatory act but do attach a photograph of an order for arrest from Pamlico County, North Carolina, which presumably was the basis for the alleged false arrest. (Prop. Compl. Ex. 2, (“Pamlico OFA”) [DE #1-4].)
As a preliminary point of clarification, October 5, 2020, was the deadline to file objections to the undersigned's Order and Memorandum & Recommendation (“M&R”) in Plaintiffs' earlier case. Young v. Lake Royal Prop. Owner Ass'n, No. 5:19-CV-483, 2020 WL 6692985 (E.D. N.C. Sept. 21, 2020). Although the undersigned's phrasing directed “each party” to file any objections to the M&R by October 5, 2020, at that point in time Plaintiff's complaint had yet to survive frivolity review and be filed. Consequently, the defendants had not been served with Plaintiffs' complaint. On November 12, 2020, the court adopted the M&R and directed the United States Marshal to serve Plaintiffs' complaint. Young v. Lake Royal Prop. Owners Ass'n, No. 5:19-CV-483-FL, 2020 WL 6693226 (E.D. N.C. Nov. 12, 2020). The docket reflects that Defendants in the instant action were served with Plaintiffs' previous complaint on December 14, 2020, with counsel entering appearances on December 28, 2020. Service of Summonses, Young v. Lake Royale Prop. Owners Ass'n, No. 5:19-CV-483-FL, ECF Nos. 15-16 (E.D. N.C. Dec. 14, 2020); Notices of Appearance for Lake Royale Private Company Police and Lake Royale Property Owners Ass'n, Young v. Lake Royale Prop. Owners Ass'n, No. 5:19-CV-483-FL, ECF Nos. 25 & 28 (E.D. N.C. Dec. 28, 2020).
Plaintiffs have failed to plead anything but conclusory assertions as to FHA retaliation by Defendants for several reasons. First, Plaintiffs have not specified the protected activity to which the alleged retaliation was a response. See Hall, 637 Fed.Appx. at 98 (“Retaliatory conduct, by its very nature, must come after the protected activity.” (citing Dowe v. Total Action Against Poverty in Roanoke Valley, 145 F.3d 653, 657 (4th Cir. 1998)). Second, assuming that the protected activity was Plaintiffs' pro se application to initiate the earlier lawsuit against Defendants, Plaintiffs have failed to allege when Defendants became aware of that activity. This lack of temporal proximity undermines the causality component of Plaintiffs' retaliation claim. Hall, 637 Fed.Appx. at 99 (explaining that causal link between protected activity and adverse action must occur ‘“very close' to, Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 273-74 (2001), or ‘shortly after,' Price v. Thompson, 380 F.3d 209, 213 (4th Cir. 2004), the defendant became aware of the protected activity”); Young, 2021 WL 3853258, at *5 (explaining same principle from Hall). Third, “Plaintiffs fail to point to any factual allegations that would give rise to an inference of retaliatory causation beyond bare assertions devoid of further factual development.” Young, 2021 WL 3853258, at *5. All Plaintiffs have alleged is that Defendants falsely arrested Plaintiff Eric Young and that it was a retaliatory act under the FHA. Accordingly, Plaintiffs' FHA retaliation claim should be dismissed as frivolous or for failure to state a claim.
If the protected activity was not Plaintiffs' pro se application to initiate the earlier lawsuit, then the undersigned can only guess that the protected activity was Plaintiffs' earlier administrative complaints or state-court action. See Young, 2021 WL 3853258, at *1-4 (summarizing Plaintiffs' administrative complaints and state court action). This is problematic because (i) it requires the court to guess at Plaintiffs' intent, see Williams, 716 F.3d at 805, and (ii) the temporal proximity between the protected activity and the alleged retaliatory act is lacking, see Hall, 637 Fed.Appx. at 99 (summarizing cases in which lapses of several months undermine causation element in retaliation claim based on temporal proximity alone).
B. State Torts
Although Plaintiffs do not invoke 28 U.S.C. § 1367 as a basis for the court's jurisdiction over their additional claims, that is the statute which would authorize such jurisdiction, given the lack of diversity between the parties. (See [DE #1-1].) However, as Plaintiffs' FHA retaliation claim fails, there are no federal claims to which Plaintiffs' remaining state-law claims may attach. See 28 U.S.C. § 1367 (stating that a court may decline to exercise supplemental jurisdiction if “the district court has dismissed all claims over which it has original jurisdiction”). Having considered principles of comity, convenience, fairness and judicial economy, the undersigned recommends that the court decline jurisdiction over the remaining state law claims. See Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 (1988).
CONCLUSION
For the reasons stated above, Plaintiffs' application to proceed in forma pauperis [DE #1] is ALLOWED, and it is RECOMMENDED that Plaintiffs' Fair Housing Act retaliation claim be dismissed as frivolous or for failure to state a claim and that the court decline to exercise supplemental jurisdiction over Plaintiffs' remaining state tort claims.
IT IS DIRECTED that a copy of this Memorandum and Recommendation be served on Plaintiffs.
You shall have until July 5, 2022, to file written objections to the Memorandum and Recommendation. The presiding district judge must conduct his or her own review (that is, make a de novo determination) of those portions of the Memorandum and Recommendation to which objection is properly made and may accept, reject, or modify the determinations in the Memorandum and Recommendation; receive further evidence; or return the matter to the magistrate judge with instructions. See, e.g., 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(3); Local Civ. R. 1.1 (permitting modification of deadlines specified in local rules), 72.4(b) (E.D. N.C. Dec. 2019).
If you do not file written objections to the Memorandum and Recommendation by the foregoing deadline will be giving up the right to review of the Memorandum and Recommendation by the presiding district judge as described above, and the presiding district judge may enter an order or judgment based on the Memorandum and Recommendation without such review. In addition, your failure to file written objections by the foregoing deadline may bar you from appealing to the Court of Appeals from an order or judgment of the presiding district judge based on the Memorandum and Recommendation. See Wright v. Collins, 766 F.2d 841, 846-47 (4th Cir. 1985).