Bonita Hunt v. Goergia Department of Community Affairs , 490 F. App'x 196 ( 2012 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-10935
Non-Argument Calendar
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D.C. Docket No. 1:09-cv-03137-AT
BONITA HUNT,
Plaintiff-Appellant,
versus
GEORGIA DEPARTMENT OF COMMUNITY AFFAIRS,
LARUTH HOLLOWAY,
SABRA LEBLANC,
GEOFFREY PARKER,
JIM BALINGER,
MICHAEL TIMMS, for the Georgia Department of
Community Affairs, in their official and individual capacity,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(September 18, 2012)
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Before CARNES, HULL and MARCUS, Circuit Judges.
PER CURIAM:
Plaintiff-Appellant Bonita Hunt pro se appeals the district court’s dismissal
of her complaint asserting claims against the Defendant-Appellee Georgia
Department of Community Affairs (“GDCA”) under the Fair Housing Act
(“FHA”), the Americans with Disabilities Act (“ADA”), and the Rehabilitation
Act.1 The district court dismissed Hunt’s ADA and Rehabilitation Act claims as
barred by the two-year statute of limitations and dismissed her FHA claim as
barred by the Eleventh Amendment. After review, we affirm.2
I. BACKGROUND
From 2004 to 2007, Hunt received a federal housing subsidy administered
by Defendant GDCA. According to Plaintiff Hunt’s pro se complaint, filed on
October 20, 2009, Defendant GDCA discriminated against her and her children
1
On appeal, Hunt does not challenge the district court’s dismissal of her claims against the
individual defendants. Consequently, those claims are deemed abandoned. See Bingham v. Thomas,
654 F.3d 1171, 1174 n.1 (11th Cir. 2011).
2
We review de novo a district court’s grant of a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6), accepting the allegations in the complaint as true and construing them in the
light most favorable to the plaintiff. Am. Dental Ass’n v. Cigna Corp., 605 F.3d 1283, 1288 (11th
Cir. 2010). In addition, we liberally construe pro se pleadings. Tannenbaum v. United States, 148
F.3d 1262, 1263 (11th Cir. 1998). To avoid dismissal under Rule 12(b)(6), the facts alleged in the
complaint must state a claim for relief “that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662,
678-79, 129 S. Ct. 1937, 1949-50, (2009). When considering a Rule 12(b)(6) motion, the court is
limited to the pleadings and attached exhibits. Grossman v. Nationsbank, N.A., 225 F.3d 1228, 1231
(11th Cir. 2000); see Fed. R. Civ. P. 10(c).
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based on their race, their familial status and her son’s disabilities by: (1) forcing
them to remain in substandard housing that was infested by mold and rats and
smelled of raw sewage until Hunt’s lease expired on November 30, 2005; (2)
refusing to give approval in May 2007 so that a live-in aide for Hunt’s son could
reside in Hunt’s subsidized home; and (3) retaliating against Hunt, for her
complaints, by making false allegations of fraud against her in a June 14, 2007
administrative hearing with the U.S. Department of Housing and Urban
Development (“HUD”).
II. DISCUSSION
Title II of the ADA and the Rehabilitation Act do not contain independent
statutes of limitation and thus are governed by the most analogous state statute of
limitations, here Georgia’s two-year statute of limitations for personal injury
actions in O.C.G.A. § 9-3-33. Everett v. Cobb Cnty. Sch. Dist., 138 F.3d 1407,
1409-10 (11th Cir. 1998). On appeal, Hunt does not dispute that the last act of
alleged discrimination occurred in May 2007 and that she filed her federal
complaint in October 2009, more than two years later. Instead, Hunt argues that
her complaint was nonetheless timely because she is entitled to either statutory
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tolling under the FHA or equitable tolling. We disagree.3
Although the FHA contains a statutory tolling provision, see 42 U.S.C.
§ 3613(a)(1)(B), Hunt cites no authority for her contention that it extends to
claims raised under the ADA or the Rehabilitation Act. Further, nothing in the
FHA purports to toll the running of the limitations period for a claim under the
ADA or the Rehabilitation Act. Rather, the FHA’s tolling provision expressly
limits its reach to administrative proceedings concerning discriminatory housing
practices made unlawful by the Act itself. See 42 U.S.C. § 3602(f) (defining a
“discriminatory housing practice” as “an act that is unlawful under” four specified
provisions of the FHA), § 3613(a)(1)(A), (B) (authorizing an aggrieved person to
commence a civil action “not later than 2 years after the occurrence or the
termination of an alleged discriminatory housing practice” and tolling the two-year
period while “an administrative proceeding under this subchapter was pending
with respect to a complaint or charge under this subchapter based upon such
discriminatory housing practice”). Moreover, since the source of the limitation for
FHA claims is distinct from that governing ADA and Rehabilitation Act claims,
3
We review de novo a district court’s application of a statute of limitation and its
determination whether equitable tolling applies. McCullough v. United States, 607 F.3d 1355, 1358
(11th Cir. 2010); Bhd. of Locomotive Eng’rs & Trainmen Gen. Comm. of Adjustment CSX Transp.
N. Lines v. CSX Transp., Inc., 522 F.3d 1190, 1194 (11th Cir. 2008). “A Rule 12(b)(6) dismissal
on statute of limitations grounds is appropriate only if it is apparent from the face of the complaint
that the claim is time-barred.” CSX Transp., 522 F.3d at 1194 (quotation marks omitted).
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we see no reason to conclude that the FHA’s express tolling provision should
apply to an ADA or a Rehabilitation Act claim.
Hunt alternatively argues that the limitations period for her ADA and
Rehabilitation Act claims was equitably tolled during the administrative
proceedings because HUD led her to believe that it had jurisdiction of those claims
and that the FHA’s statutory tolling provision applied to them. “The doctrine of
equitable tolling allows a court to toll the statute of limitations until such a time
that the court determines would have been fair for the statute of limitations to
begin running on the plaintiff’s claims.” Arce v. Garcia, 434 F.3d 1254, 1261
(11th Cir. 2006). Because equitable tolling is an extraordinary remedy to be
applied sparingly, it is appropriate only when a plaintiff untimely files due to
extraordinary circumstances that are both beyond her control and unavoidable
even with diligence. Id. Equitable tolling typically requires some affirmative
misconduct, such as fraud, misinformation or deliberate concealment. Jackson v.
Astrue, 506 F.3d 1349, 1355-56 (11th Cir. 2007). “[I]gnorance of the law does
not, on its own, satisfy the constricted ‘extraordinary circumstances’ test.” Id. at
1356. Accordingly, we have previously rejected the contention that pro se status,
ignorance of the judicial process or slow administrative proceedings warrant
application of equitable tolling. See Wakefield v. R.R. Ret. Bd., 131 F.3d 967,
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969-70 (11th Cir. 1997).
Here, the district court did not err in concluding that Hunt failed to show
extraordinary circumstances justifying equitable tolling. Contrary to Hunt’s
suggestion, nothing in the pleadings indicate HUD misled her into allowing the
statute of limitations for her ADA and Rehabilitation Act claims to expire.
Although HUD informed Hunt that it had jurisdiction to enforce administratively
the ADA and Rehabilitation Act claims in addition to the FHA claim, its
statements regarding the limitations period and tolling during the administrative
process were specific to those claims raised under the FHA. Specifically, in its
September 11, 2009 letter to Hunt, HUD merely indicated that claims under the
FHA for discriminatory housing practices were governed by a two-year statute of
limitations and that the two-year period governing such claims did not include the
time during which administrative proceedings were pending. HUD’s letter was
silent as to the limitations period governing claims under the ADA or the
Rehabilitation Act and in no way suggested that the statute of limitations for those
claims was also tolled during the administrative proceedings.
Furthermore, the FHA explicitly states that an aggrieved person may
commence a civil action for discriminatory housing practices regardless of
whether an administrative complaint has been filed and without regard to the
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status of such a complaint. See 42 U.S.C. § 3613(a)(2). Thus, HUD’s
investigation into Hunt’s complaint, even if delayed, did not prevent her from
timely pursuing even her FHA claim, much less her ADA and Rehabilitation Act
claims, in federal court. The fact that Hunt may have been ignorant of the relevant
law, including her right to forgo the administrative process, does not constitute the
type of extraordinary circumstances needed to justify equitable tolling.
Accordingly, the district court did not err in dismissing Hunt’s ADA and
Rehabilitation Act claims against GDCA as barred by the statute of limitations.
Hunt’s appellate brief asserts in one sentence that the district court erred in
dismissing her FHA claim as barred by the Eleventh Amendment because the
GDCA waived immunity by receiving federal funds. Hunt does not cite to any
statute or authority to support her contention or provide any legal analysis of this
waiver issue. While we read briefs filed by pro se litigants liberally, issues not
briefed on appeal by a pro se litigant are deemed abandoned. Timson v. Sampson,
518 F.3d 870, 874 (11th Cir. 2008). “On appeal, we require appellants to not only
state their contentions to us, but also to give ‘the reasons for them, with citations
to the authorities and parts of the record on which the appellant relies.’” Doe v.
Moore, 410 F.3d 1337, 1349 n.10 (11th Cir. 2005) (quoting Federal Rule of
Appellate Procedure 28(a)(9)(A)). Hunt’s bald assertion, without any substantive
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legal argument, does not adequately preserve this issue for appellate review.
For all these reasons, we affirm the district court’s dismissal of Hunt’s
complaint. Hunt’s motion for oral argument is denied.
AFFIRMED.
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