Hall v. Shipley ( 2019 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Noel Edwart Stewart Hall, No. CV-19-04858-PHX-DWL 10 Plaintiff, ORDER 11 v. 12 Christine Shipley, et al., 13 Defendants. 14 15 Pending before the Court is Plaintiff Noel Edwart Stewart Hall’s Application for 16 Leave to Proceed In Forma Pauperis (Doc. 2), which the Court hereby grants. The Court 17 will screen Plaintiff’s complaint pursuant to 28 U.S.C. § 1915(e)(2)1 before it is allowed to 18 be served. Pursuant to that screening, Plaintiff’s complaint (Doc. 1) is dismissed with leave 19 to amend. Also pending is Plaintiff’s “Motion to Rule Ex Parte” (Doc. 7), which the Court 20 construes as a motion for a temporary restraining order (“TRO”) and denies. 21 I. Plaintiff’s Complaint Is Dismissed With Leave To Amend 22 A. Statutory Screening of Complaints Filed By Pro Se Litigants 23 Under 28 U.S.C. § 1915(e)(2), a complaint is subject to dismissal if it contains 24 claims that are “frivolous or malicious,” that “fail[] to state a claim upon which relief may 25 be granted,” or that “seek[] monetary relief against a defendant who is immune from such 26 relief.” Id. Additionally, under Federal Rule of Civil Procedure 8(a)(2), a pleading must 27 1 Although section 1915 largely concerns prisoner litigation, section 1915(e) applies 28 to all in forma pauperis proceedings. Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) (“[T]he provisions of 28 U.S.C. § 1915(e)(2)(B) are not limited to prisoners.”). 1 contain a “short and plain statement of the claim showing that the pleader is entitled to 2 relief.” Id. Although Rule 8 does not demand detailed factual allegations, “it demands 3 more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. 4 Iqbal, 556 U.S. 662, 678 (2009). “Threadbare recitals of the elements of a cause of action, 5 supported by mere conclusory statements, do not suffice.” Id. 6 “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a 7 claim to relief that is plausible on its face.’” Id. (quoting Bell Atlantic Corp. v. Twombly, 8 550 U.S. 544, 570 (2007)). A claim is plausible “when the plaintiff pleads factual content 9 that allows the court to draw the reasonable inference that the defendant is liable for the 10 misconduct alleged.” Id. “Determining whether a complaint states a plausible claim for 11 relief [is] . . . a context-specific task that requires the reviewing court to draw on its judicial 12 experience and common sense.” Id. at 679. Thus, although a plaintiff’s specific factual 13 allegations may be consistent with a constitutional claim, a court must assess whether there 14 are other “more likely explanations” for a defendant’s conduct. Id. at 681. 15 The Ninth Circuit has instructed that courts must “construe pro se filings liberally.” 16 Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). A “complaint [filed by a pro se litigant] 17 ‘must be held to less stringent standards than formal pleadings drafted by lawyers.’” Id. 18 (quoting Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam)). Conclusory and vague 19 allegations, however, will not support a cause of action. Ivey v. Bd. of Regents of the Univ. 20 of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). A liberal interpretation may not supply 21 essential elements of the claim that were not initially pled. Id. 22 “If a pleading can be cured by the allegation of other facts, a pro se litigant is entitled 23 to an opportunity to amend before the final dismissal of the action.” Ball v. Cty. of 24 Maricopa, 2017 WL 1833611, *1 (D. Ariz. 2017) (concluding that complaint could not be 25 amended to state a cognizable claim and dismissing with prejudice). 26 B. Analysis 27 The complaint asserts that Defendants discriminated against Plaintiff in violation of 28 the Fair Housing Act (“FHA”). However, the complaint itself does not affirmatively allege 1 any facts at all; the “statement of claim” section of the pro se complaint form is 2 conspicuously blank. (Doc. 1 at 4.) 3 Attached to the complaint is a form that Plaintiff submitted to the Arizona Attorney 4 General’s Office, Civil Rights Division. (Doc. 1-1 at 2.) In general, it is not the Court’s 5 responsibility to comb through the exhibits attached to a pro se complaint in an attempt to 6 discern possible claims for relief. Cf. Turner v. Grievance Coordinator, 2014 WL 7 3002082, *3 (D. Nev. 2014) (dismissing complaint at the screening stage because “[t]he 8 Court plainly informed plaintiff that all factual assertions relied upon to state his claims 9 must be set forth within the four corners of his pleading” yet plaintiff made “no actual 10 factual allegations in the amended complaint” and instead submitted “thirteen pages of 11 exhibits attaching documents pertaining to grievances and disciplinary proceedings”). 12 Nevertheless, in this case, the Court will attempt to do so. 13 In the attached complaint form, Plaintiff alleged the following facts: 14 A. In or around July 16, 2018, [Plaintiff] signed a one year lease and moved into [a condominium unit (“the Leased Premises”)]. 15 B. On June 13, 2019, [Plaintiff] was served with [a] Notice for Eviction 16 because Respondent alleged [Plaintiff] made a threat to shoot the landlord’s agents and associate parties. On June 27, 2019, [Plaintiff] 17 received a thirty (30) Day Notice of Intent to not renew [Plaintiff’s] lease and a notice was further provided that the landlord has decided 18 to not renew [Plaintiff’s] residential lease contract and [that Plaintiff] must vacate the Leased Premises no later than July 27, 2019. 19 C. [Plaintiff has] been harassed and threatened by another tenant (non- 20 British) whom [Plaintiff] reported to Respondent[,] and [Plaintiff disagrees] with Respondent that [Plaintiff has] harassed or threatened 21 other tenants (non-British). 22 D. [Plaintiff] believe[s] and therefore allege[s] that Respondent is in violation of the Arizona Fair Housing Act based on [his] National 23 Origin, British, most recently on July 27, 2019. 24 (Doc. 1-1 at 2.) 25 Under the FHA, it is illegal “[t]o discriminate against any person in the terms, 26 conditions, or privileges of sale or rental of a dwelling, or in the provision of services or 27 facilities in connection therewith, because of . . . national origin.” 42 U.S.C. § 3604(b). 28 An FHA discrimination claim can be brought under a theory of “disparate treatment” or 1 “disparate impact.” Gamble v. City of Escondido, 104 F.3d 300, 304–05 (9th Cir. 1997). 2 Here, Plaintiff’s allegation appears to be that he was treated unfairly because he is British. 3 This is a disparate treatment claim. 4 “To establish a prima facie case, plaintiff must allege facts showing that (1) his 5 rights are protected under the FHA; and (2) he was concretely injured by the defendant’s 6 discriminatory conduct.” Wade v. Sacramento Hous. & Redevelopment Agency, 2018 WL 7 6335411, *3 (E.D. Cal. 2018) (citing Harris v. Itzhaki, 183 F.3d 1043, 1051 (9th Cir. 1999). 8 “‘Discriminatory conduct’ in this context means intentional discrimination: treating 9 someone less favorably than others because of a protected trait.” Id. (citing Texas Dep’t of 10 Housing and Community Affairs v. Inclusive Communities Project, Inc., 135 S.Ct. 2507, 11 2553 (2015). “Proof of discriminatory motive is crucial to a disparate treatment claim.” 12 Gamble, 104 F.3d at 305 (quotation omitted). 13 Plaintiff’s allegation that he was discriminated against by another tenant for being 14 British is a legal conclusion, not a factual allegation. When a British person is harassed by 15 a non-British person, it does not inexorably follow that the harassment was fueled by anti- 16 British bias. It was thus incumbent upon Plaintiff to allege facts suggesting the harassment 17 arose due to a discriminatory motive. But the complaint and attached complaint form 18 contain no such facts. 19 Plaintiff’s allegations also fail for a different reason. As noted, he appears to be 20 complaining he was harassed by another tenant due to his British heritage. However, he 21 isn’t suing the other tenant in this case—he’s suing the property management company that 22 operates his apartment building and the property manager. There is no allegation that either 23 of those Defendants harassed and threatened Plaintiff due to his British heritage. To the 24 contrary, the complaint form states that the property management company sought to evict 25 him because he allegedly “made a threat to shoot the landlord’s agents and associate[d] 26 parties.” (Doc. 1-1 at 2.) Although the complaint form also alleges that Plaintiff “reported” 27 to the property management company that he was being harassed by another tenant, being 28 aware of a squabble between tenants is not the same thing as affirmatively engaging in 1 Anglophobic discrimination in violation of the FHA. 2 The Court will thus dismiss the complaint with leave to amend. “Dismissal of a pro 3 se complaint without leave to amend is proper only if it is absolutely clear that the 4 deficiencies of the complaint could not be cured by amendment.” Schucker v. Rockwood, 5 846 F.2d 1202, 1203-04 (9th Cir. 1988) (internal quotation marks and citation omitted). 6 “If a pleading can be cured by the allegation of other facts, a pro se litigant is entitled to an 7 opportunity to amend before the final dismissal of the action.” Ball v. Cty. of Maricopa, 8 2017 WL 1833611, *1 (D. Ariz. 2017). 9 Plaintiff is reminded that the Federal Court Self-Service Clinic provides free civil 10 legal help to self-represented litigants. (See Notice to Self-Represented Litigant, Doc. 5 at 11 7.) 12 II. Plaintiff’s “Motion To Rule Ex Parte” (Doc. 7) Is Construed As A Motion For 13 A TRO And Denied Without Prejudice 14 On August 2, 2019, Plaintiff filed a “Motion to Rule Ex Parte” (Doc. 7). The 15 handwritten motion is difficult to read, but it appears to state, in its entirety: 16 The Complaint is of less protection under Arizona law and the Defendant is asking for protection under U.S. Federal law wherein Interim Injunction is 17 given as relief while Investigation of Fair Housing Act Complaint. Complaint to U.S. Attorney Governor Phoenix has been submitted. This is 18 my true statement. 19 (Doc. 7.) 20 On August 6, 2019, Plaintiff filed a supplement to the motion, attaching a letter from 21 the Office of the Arizona Attorney General which states that the Civil Rights Division 22 received Plaintiff’s housing discrimination complaint and anticipates that investigation will 23 conclude within 100 days of the date when Plaintiff filed the complaint. (Doc. 8 at 4.) 24 Plaintiff stated in the supplement that “immediate injunction can be given in relief.” (Id. 25 at 1.) 26 Although the motion does not clearly indicate what relief is sought, the Court infers 27 that it is intended to be a request for a TRO preventing Defendants from evicting Plaintiff. 28 A request for a TRO is analyzed under the same standards as a request for a 1 preliminary injunction. Stuhlbarg Int’l Sales Co., Inc. v. John D. Brush & Co., 240 F.3d 2 832, 839 n.7 (9th Cir. 2001). “A preliminary injunction is ‘an extraordinary and drastic 3 remedy, one that should not be granted unless the movant, by a clear showing, carries the 4 burden of persuasion.’” Lopez v. Brewer, 680 F.3d 1068, 1072 (9th Cir. 2012) (citation 5 omitted); see also Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 24 (2008) (“A 6 preliminary injunction is an extraordinary remedy never awarded as of right.”) (citation 7 omitted). A plaintiff seeking a preliminary injunction must show that (1) she is likely to 8 succeed on the merits, (2) she is likely to suffer irreparable harm without an injunction, (3) 9 the balance of equities tips in her favor, and (4) an injunction is in the public interest. 10 Winter, 555 U.S. at 20. “But if a plaintiff can only show that there are ‘serious questions 11 going to the merits’—a lesser showing than likelihood of success on the merits—then a 12 preliminary injunction may still issue if the ‘balance of hardships tips sharply in the 13 plaintiff’s favor,’ and the other two Winter factors are satisfied.” Shell Offshore, Inc. v. 14 Greenpeace, Inc., 709 F.3d 1281, 1291 (9th Cir. 2013) (citation omitted). Under this 15 “serious questions” variant of the Winter test, “[t]he elements . . . must be balanced, so that 16 a stronger showing of one element may offset a weaker showing of another.” Lopez, 680 17 F.3d at 1072. 18 Here, it does not appear Plaintiff will succeed on the merits—indeed, the complaint 19 is being dismissed for failure to state a claim. See, e.g., Burleson v. Sec. Properties 20 Residential, LLC, WL 3046412, *1 (W.D. Wash. 2018) (“Plaintiff provides no evidence 21 that links [Defendants’ alleged conduct] to her race or disability and makes no effort to 22 show that she is likely to prevail upon her discrimination claims. Plaintiff’s motion for 23 injunctive relief is therefore DENIED.”). 24 As to irreparable harm, generally “the loss of one’s home is sufficient to satisfy this 25 element.” de la Rocha v. Wells Fargo Bank, N.A., 2011 WL 5237755, *1 (E.D. Cal. 2011) 26 (citing Park Village Apartment Tenants Ass’n v. Mortimer Howard Trust, 636 F.3d 1150 27 (9th Cir. 2011) (holding eviction of Section 8 housing tenants constitutes irreparable 28 injury); Sundance Land Corp. v. Cmty. First Fed. Sav. & Loan Ass’n, 840 F.2d 653, 661 1 (9th Cir. 1988) (holding threatened foreclosure presented an “immediate, irreparable 2 injury”). However, Plaintiff has provided no facts whatsoever demonstrating that the 3 irreparable harm is immediate—for example, Plaintiff has not indicated when and how he 4 will be evicted. 5 The Court has little information from which to determine how the balance of 6 equities tips, but it does appear that Plaintiff delayed for many weeks before seeking an 7 emergency TRO. This is not the proper way to present a claim for emergency relief based 8 on an alleged threat of imminent, irreparable injury. Cf. Ruvalcaba v. Citibank, 2012 WL 9 12878654, *2 (C.D. Cal. 2012) (citation omitted) (“To justify ex parte relief, ‘it must be 10 established that the moving party is without fault in creating the crisis that requires ex parte 11 relief, or that the crisis occurred as a result of excusable neglect.’ . . . In this case, the Court 12 finds that Plaintiff unreasonably delayed in seeking relief, and that the emergency that 13 allegedly justifies a TRO is self-created.”); Tachiquin v. HSBC Bank USA, Nat’l Ass’n, 14 2012 WL 12882887, *2 (S.D. Cal. 2012) (“Although the Court is sensitive to the harm 15 caused by being evicted from one’s residence, the Court is at a loss to see how the harm 16 specified can be remedied by the Court, or why Plaintiffs have delayed in filing the current 17 action.”). 18 It is also unclear whether an injunction would be in the public interest. The materials 19 attached to the complaint suggest Plaintiff “made a threat to shoot the landlord’s agents 20 and associate parties.” (Doc. 1-1 at 2.) 21 Additionally, when a plaintiff requests a TRO without notice, as Plaintiff does here, 22 two additional requirements are applicable. “The court may issue a temporary restraining 23 order without written or oral notice to the adverse party or its attorney only if: (A) specific 24 facts in an affidavit or a verified complaint clearly show that immediate and irreparable 25 injury, loss, or damage will result to the movant before the adverse party can be heard in 26 opposition; and (B) the movant’s attorney certifies in writing any efforts made to give 27 notice and the reasons why it should not be required.” Fed. R. Civ. P. 65(b)(1). 28 Here, Plaintiff has not demonstrated the immediacy of the injury and has not made a clear showing of insufficient time for the adverse party to be heard. Additionally, 2|| Plaintiff has not certified in writing any efforts made to give notice and the reasons why || notice should not be required. 4 Thus, Plaintiff’s “Motion to Rule Ex Parte” (Doc. 7), which the Court construes as || a motion for a TRO, is denied without prejudice. 6 Accordingly, 7 IT IS ORDERED that the Application to Proceed in District Court without 8 || Prepaying Fees or Costs (Doc. 2) is granted. 9 IT IS FURTHER ORDERED that Plaintiff's Complaint (Doc. 1) is dismissed with leave to amend no later than September 11, 2019. The amended complaint must be 11 || neatly handwritten or typed. If the amended complaint is illegible, this may result in 12 || dismissal for failure to follow this Order and/or for failure to state a claim on which relief 13} may be granted. If Plaintiff fails to file an amended complaint by September 11, 2019, the Clerk of Court shall dismiss this case without further notice. 15 IT IS FURTHER ORDERED that Plaintiffs “Motion to Rule Ex Parte” (Doc. 7), which the Court construes as a motion for a TRO, is denied. 17 Dated this 7th day of August, 2019. 18 19 —_ — 20 fu — 21 United States District Judge 22 23 24 25 26 27 28 -8-