Denny R. Wood v. Briarwinds Condominium , 369 F. App'x 1 ( 2010 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-12704 ELEVENTH CIRCUIT
MARCH 3, 2010
Non-Argument Calendar
JOHN LEY
________________________
CLERK
D. C. Docket No. 08-10096-CV-KMM
DENNY R. WOOD,
Plaintiff-Appellant,
versus
BRIARWINDS CONDOMINIUM
ASSOCIATION BOARD OF DIRECTORS,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(March 3, 2010)
Before BARKETT, HULL and MARCUS, Circuit Judges.
PER CURIAM:
Denny Wood, pro se, appeals the district court’s dismissal of several of his
claims brought under the Fair Housing Act (“FHA”), 42 U.S.C. §§ 3604, 3617, and
of his breach of contract claim; grant of summary judgment to Briarwinds
Condominium Association Board of Directors (“Briarwinds”) as to his two
remaining FHA claims; and denial of his motion to appoint counsel. After
thorough review, we affirm in part and vacate and remand in part.
First, we affirm the district court’s dismissal of Wood’s FHA claims. To
survive a motion to dismiss under Rule 12(b)(6), a plaintiff must allege in his
complaint sufficient facts “to raise a right to relief above the speculative level.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007) (citation omitted). Thus,
“conclusory allegations, unwarranted deductions of facts[,] or legal conclusions
masquerading as facts will not prevent dismissal.” Oxford Asset Mgmt., Ltd. v.
Jaharis, 297 F.3d 1182, 1188 (11th Cir. 2002). However, we construe pro se
pleadings liberally. Boxer X v. Harris, 437 F.3d 1107, 1110 (11th Cir. 2006).
The FHA provides that it is unlawful to “discriminate against any person in
terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of
services or facilities in connection with such dwelling, because of a handicap.” 42
U.S.C. § 3604(f)(2)(A). Discrimination under § 3604 includes “a refusal to permit,
at the expense of the handicapped person, reasonable modifications of existing
premises occupied or to be occupied by such person if such modifications may be
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necessary to afford such person full enjoyment of the premises” or “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
use and enjoy a dwelling.” 42 U.S.C. §§ 3604(f)(3)(A) & (B).
With respect to each of the dismissed discrimination claims, Wood either
abandoned the claim or failed to allege any FHA violation. Specifically, Wood
abandoned his claims that Briarwinds’s failure to store the pool lift during
inclement weather and that the reconfiguration of his parking space violate the
FHA, because he did not raise those arguments on appeal. See Horsely v. Feldt,
304 F.3d 1125, 1131 n.1 (11th Cir. 2002). Nor will we consider Wood’s claim that
the use of a mask and snorkel in the community pool is a legitimate
accommodation for his disability, because he does not provide any argument in
support of this request or otherwise explain how Briarwinds’s pool rules violate the
FHA. Id.As for Wood’s other claims -- (1) inaccessibility of Briarwinds’s pool
furniture; (2) inaccessibility of Briarwinds’s picnic tables and grills; (3)
Briarwinds’s failure to allow Wood to install a heat pump in the pool; and (4)
Briarwinds’s use of speed bumps in the parking lot -- we adopt the district court’s
thorough reasoning dismissing them. Wood does not allege that Briarwinds
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refused his offer to modify any of the above-mentioned property conditions at his
own expense, other than the lack of a pool heater, which does not constitute
discrimination under the FHA because heating the pool is not required to ensure
that Wood can enjoy the pool area equally with non-disabled residents, see 42
U.S.C. §§ 3604(f)(2)(A), (f)(3)(A) & (B). Further, the district court correctly
dismissed Wood’s claim that the design of the guest parking spaces were
discriminatory, because he did not have standing to bring that claim. His
complaint contains no allegation that he ever used those parking spots or suffered
any injury himself from their design. See Elend v. Basham, 471 F.3d 1199, 1205
(11th Cir. 2006).
The FHA also provides that “[i]t shall be unlawful to coerce, intimidate,
threaten, or interfere with any person in the exercise or enjoyment of, or on account
of his having exercised or enjoyed” any right granted or protected under the FHA.
42 U.S.C. § 3617; see Sofarelli v. Pinellas County, 931 F.2d 718, 722 (11th Cir.
1991) (finding that a note threatening “to break [the plaintiff] in half,” hitting his
truck, shouting obscenities and spitting at him constituted coercion and
intimidation under § 3617 when there was also an indication that there was a
discriminatory motivation behind that conduct). As for Wood’s FHA retaliation
claim, he failed to allege conduct that rises to the level of coercion or intimidation
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under the FHA; he alleges only that he was retaliated against when his van, which
was leaking oil, was towed, a board member complained that he was violating the
pool rules by using a mask and snorkel in the pool, and the same board member
assessed fines against Wood for the oil leak and took photographs of him. That
conduct does not rise to the level of intimidation or threats, nor did Wood
demonstrate any nexus between the complained about conduct and his FHA
protected activity. Therefore, the district court did not err in dismissing these FHA
discrimination and retaliation claims.
Wood also argues that the district court erred in dismissing his breach of
contract claim1 , which alleged that Briarwinds violated previous contractual
agreements dictating the size of his parking space. Briarwinds says on appeal that
this issue is moot, because Briarwinds has reconfigured the parking space to meet
Wood’s specifications. However, it appears that no evidence of this modification
was presented to the district court. Moreover, the district court did not adequately
address Wood’s breach of contract claim. It states only that “Wood has failed to
allege that his parking space violates the FHA or a prior conciliation agreement,”
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In liberally construing Woods’s pro se complaint, we find that he raised a breach of
contract claim. Although all three of the counts he alleges in his complaint are brought under the
FHA, he also states that he is seeking to have the terms of the conciliation agreements he entered
into with Briarwinds enforced. In addition, in Briarwinds’s answer to Wood’s complaint, it
states that “Defendant admits that Plaintiff purports . . . to enforce a prior settlement agreement
which Plaintiff contends the Defendant has breached” (Answer ¶ 4).
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and does not address Wood’s contention in his complaint that Briarwinds “violated
the terms of the Conciliation Agreement of 1994 . . . by reducing the plaintiff’s
assigned parking space to 89 inches from the 144 inches.” See Simmons v.
Wainwright, 462 F.2d 1340, 1342 (5th Cir. 1972) (vacating and remanding a
district court’s dismissal of a plaintiff’s claims under 42 U.S.C. § 1983 because the
district court failed to enter findings and conclusions with respect to all the
plaintiff’s claims); Imperial Residential Design, Inc. v. Palms Dev. Group, Inc., 29
F.3d 581, 583 (11th Cir. 1994) (stating that without an explanation from the district
court about its factual and legal conclusions on an issue, we cannot effectively
review the issue an appeal).
Accordingly, we vacate and remand the district court’s dismissal of Wood’s
breach of contract claim so that the district court may determine whether this claim
in now moot, or in the alternative, to explain its reasons for dismissing Wood’s
breach of contract claim.
Third, Wood argues that the district court erred in granting summary
judgment to Briarwinds on his two remaining FHA claims on statute of limitations
grounds. We are unpersuaded. Under the FHA, an individual may sue “not later
than 2 years after the occurrence or the termination of an alleged discriminatory
housing practice.” 42 U.S.C. § 3613(a)(1)(A) (emphasis added). A statute of
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limitations begins to run when “facts supportive of the cause of action are or
should be apparent to a reasonably prudent person similarly situated.” Hipp v.
Liberty Nat’l Ins. Co., 252 F.3d 1208, 1222 (11th Cir. 2001) (quotation marks and
citations omitted). In the case of a continuing violation, the statute of limitations
will run from the moment the violation begins if the violation continues only
because of the plaintiff’s knowing failure to seek relief. See Roberts v. Gadsden
Mem’l Hosp., 850 F.2d 1549, 1550 (11th Cir. 1988) (finding a claim of a
“continuing” injury was time-barred when the plaintiff knowingly failed to
exercise his rights); see also Mangum v. Action Collection Serv., Inc., 575 F.3d
935, 946 (9th Cir. 2009) (“[T]he FHA’s statute of limitations starts the clock on the
date the violation occurs . . . . The occurrence of the discriminatory housing
practice . . . is the failure to design and construct, not the plaintiff’s discovery of
the violation.”) (quotation marks and citations omitted).
Wood has been aware of all of the physical attributes of Briarwinds about
which he now complains for more than two years. With respect to the first FHA
claim that the district court rejected on summary judgment, Wood acknowledges
that the challenged pathway has been the same since at least 1993, when he became
a permanent resident of Briarwinds, and that he was aware of its existence.
Similarly, the use of crushed rock in the atrium, which forms the basis of Wood’s
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other FHA claim, was undisputably in place with Wood’s knowledge since 2005.
Accordingly, both claims are barred by the FHA’s two-year statute of limitations.
Finally, Wood argues that the district court erred when it denied his motion
to appoint counsel for him. In deciding whether to appoint counsel, the district
court “has broad discretion . . . and should appoint counsel only in exceptional
circumstances.” Bass v. Perrin, 170 F.3d 1312, 1320 (11th Cir. 1999) (citations
omitted). Because Wood failed to establish any exceptional circumstances
justifying the appointment of counsel, particularly where he primarily alleged
straightforward FHA and breach of contract claims concerning the wheelchair
accessibility of his residence, the district court did not abuse its considerable
discretion in denying his motion to appoint counsel.
AFFIRMED in part, VACATED and REMANDED in part.
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