Webb v. United States Veterans Initiative ( 2021 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
STANLEY WEBB, :
:
Plaintiff, :
v. : Civil Action No. 18-2931 (CKK)
:
UNITED STATES :
VETERANS INITIATIVE et al., :
:
Defendants. :
MEMORANDUM OPINION
In this housing discrimination action on remand from the D.C. Circuit, Defendant United
States Veterans Initiative (“U.S. VETS”) has moved to dismiss under Rules 8(a), 9(b), and
12(b)(6) of the Federal Rules of Civil Procedure, and Defendant Community Partnership for the
Prevention of Homelessness (“Community Partnership”) has moved to dismiss under Rules
12(b)(5) and 12(b)(6). Also pending is plaintiff’s contested motion for leave to amend the
complaint for a second time. For the following reasons, the Court will deny all three motions.
I. BACKGROUND
As recounted by the D.C. Circuit:
In 2010, Stanley Webb, a disabled veteran, was referred to U.S. Vets
for housing assistance. At the time of the referral, U.S. Vets
administered two housing programs: the Supportive Housing
Program, which allowed participants to live with a roommate in
multiple-occupancy units, and Shelter Plus Care, which allowed
chronically homeless veterans with disabilities to live in one-
bedroom units without roommates or two-bedroom units with a
roommate. Webb alleges that he qualified for a one-bedroom unit
through Shelter Plus Care. When he arrived, however, U.S. Vets
allegedly told him that because no one-bedroom unit was available,
it needed to place him temporarily in a multiple-occupancy unit
through its Supportive Housing Program.
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A few months after Webb moved in, U.S. Vets placed a female
applicant in its Shelter Plus Care program even though she had
indicated on her application that she was not chronically homeless.
Webb alleges that U.S. Vets told him that she was “given
preferential treatment because she is a female.”
Webb filed a complaint with the Department of Housing and Urban
Development (HUD), claiming that U.S. Vets discriminated against
him because of his sex in violation of the Fair Housing Act. HUD
referred the complaint to the D.C. Office of Human Rights, which
in turn found no probable cause to believe that U.S. Vets had
discriminated against Webb.
Webb v. United States Veterans Initiative, 993 F.3d 970, 971 (D.C. Cir. 2021) (internal record
citations omitted).
In the above-referenced Housing Discrimination Complaint signed and dated June 13,
2017, plaintiff alleged that “because of his sex,” he was “subjected . . . to discriminatory terms
and conditions of rental” “most recent[ly]” on February 1, 2017, and “continuing” [Dkt. # 34-1 at
13-14]. Specifically, plaintiff alleged that U.S. VETS (1) offered one-bedroom apartments to
female tenants without requiring a showing of special need but did “not offer one-bedroom
apartments to male tenants unless there [was] a special need such as a disability”; (2) “double[d]
up and triple[d] up male tenants in two or three bedroom apartments”; (3) “transferred all the
male tenants to a crime infested neighborhood” in February 2017; and (4) “transferred a female
tenant to a low crime neighborhood” in January 2017. Id. at 13.
In separate letters dated June 14, 2017, HUD notified plaintiff that it had accepted his
housing discrimination complaint and notified U.S. VETS that it was a named respondent in said
complaint. Compl. Ex. 1 [Dkt. # 1-1] (“Acceptance Letter”); Def.’s Ex. A [Dkt. # 34-1 at 2].
Each letter informed the respective recipient that the complaint assigned “HUD Case No. 03-17-
6780-8” was referred to the D.C. Office of Human Rights (“OHR”) for investigation. On June
15, 2017, OHR received plaintiff’s “timely charge of discrimination.” Not. of Charge of
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Discrimination and Mandatory Mediation [Dkt. # 34-1 at 7]. On February 12, 2018, OHR issued
a 16-page Letter of Determination, finding no probable cause to believe from the foregoing
allegations that defendant had discriminated against plaintiff based on his gender [Dkt. # 34-2 at
2-17].
Ten months later, on December 13, 2018, plaintiff filed this lawsuit, alleging that U.S.
VETS “discriminated against him because of his sex when it refused to offer him a one-bedroom
apartment while offering one to a less-qualified female applicant.” Webb, 993 F.3d at 971; see
also Webb v. United States Veterans Initiative, No. 18-cv-2931, 2019 WL 6877835, at *2
(D.D.C. Dec. 17, 2019) (detailing plaintiff’s allegations and claims). The complaint prominently
referenced HUD’s Acceptance Letter. This Court found that because plaintiff was not a renter as
defined by the FHA, he lacked constitutional standing to sue under the Act, and it declined to
exercise supplemental jurisdiction over plaintiff’s non-federal claims. Webb, 2019 WL 6877835,
at **1, 5-6. In addition, the Court noted that plaintiff had alleged no facts of wrongdoing
involving Community Partnership and dismissed the complaint against that absent defendant
without prejudice. Id. at *1, n.2 (citing 28 U.S.C. § 1915(e)(2)(B)(ii)).
On April 16, 2021, the D.C. Circuit reversed this Court’s judgment, concluding that
plaintiff’s alleged injury “qualifies [him] as an aggrieved person who may bring suit under the
Act, whether he paid rent or not.” Webb, 993 F.3d at 972. It left undisturbed the dismissal of the
complaint against Community Partnership. In remanding the case, the Circuit Court
“expresse[d] no view on the merits of Webb’s Fair Housing Act claim or any claims over which
the district court declined to exercise jurisdiction.” Id. at 974.
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II. LEGAL STANDARD
A party may move under Rule 12(b)(6) to dismiss a complaint on the grounds that it
“fail[s] to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). “[A]
complaint [does not] suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual
enhancement.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 557 (2007)). Rather, a complaint must contain sufficient factual
allegations that, if accepted as true, “state a claim to relief that is plausible on its face.” Twombly,
550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Iqbal, 556 U.S. at 678.
In ruling on a motion to dismiss for failure to state a claim, the Court accepts as true the
well-pleaded allegations in the operative complaint, but “not . . . the plaintiff’s legal conclusions
or inferences that are unsupported by the facts alleged.” Ralls Corp. v. Comm. on Foreign Inv. in
U.S., 758 F.3d 296, 315 (D.C. Cir. 2014). The Court may consider not only “the facts alleged in
the complaint” but also “documents attached to the complaint as exhibits or incorporated by
reference in the complaint, and matters about which the Court may take judicial notice.”
Gustave-Schmidt v. Chao, 226 F. Supp. 2d 191, 196 (D.D.C. 2002) (citing EEOC v. St. Francis
Xavier Parochial Sch., 117 F.3d 621, 624-25 (D.C. Cir. 1997)). Pro se pleadings are held to
“less stringent standards than formal pleadings drafted by lawyers,” Erickson v. Pardus, 551 U.S.
89, 94 (2007) (per curiam), but still they must satisfy the minimal requirement of alleging
sufficient “factual matter” to permit a court “to infer more than the mere possibility of
misconduct[.]” Brown v. Whole Foods Mkt. Grp., Inc., 789 F.3d 146, 150 (D.C. Cir. 2015)
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(quoting Atherton v. District of Columbia Off. of the Mayor, 567 F.3d 672, 681-82 (D.C. Cir.
2009) (internal quotation marks omitted)).
III. ANALYSIS
1. U.S. VETS’ Motion to Dismiss
U.S. VETS argues that the alleged discriminatory conduct giving rise to this case
occurred in October 2010, thereby rendering the federal claim filed in 2018 untimely. See Mem.
at 8-10 (quoting original and amended complaints). Defendant Community Partnership “adopts”
this argument for dismissal. Mem. [Dkt. # 46-1 at 8]. The Court disagrees.
It is well established that “[b]ecause statute of limitations issues often depend on
contested questions of fact, dismissal is appropriate only if the complaint on its face is
conclusively time-barred.” Bregman v. Perles, 747 F.3d 873, 875 (D.C. Cir. 2014) (citations
omitted)). “Put another way, a defendant is entitled to succeed on a Rule 12(b)(6) motion to
dismiss brought on statutes of limitations grounds only if the facts that give rise to this
affirmative defense are clear on the face of the plaintiff’s complaint.” Lattisaw v. District of
Columbia, 118 F. Supp. 3d 142, 153 (D.D.C. 2015) (citing Smith–Haynie v. District of
Columbia, 155 F.3d 575, 578 (D.C. Cir. 1998)).
The facts relevant to the timing of this action are far from clear. Under the FHA,
(1)(A) An aggrieved person may commence a civil action in
an appropriate United States district court or State court not later
than 2 years after the occurrence or the termination of an alleged
discriminatory housing practice, or the breach of a conciliation
agreement entered into under this subchapter, whichever occurs last,
to obtain appropriate relief with respect to such discriminatory
housing practice or breach.
(B) The computation of such 2-year period shall not include
any time during which an administrative proceeding under this
subchapter was pending with respect to a complaint or charge under
this subchapter based upon such discriminatory housing practice.
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This subparagraph does not apply to actions arising from a breach
of a conciliation agreement.
42 U.S.C. § 3613. U.S. VETS insists that this action “is inextricably tethered to one event,”
Mem. at 10, namely
one discrete act that is alleged to be unlawful and discriminatory:
U.S.VETS’s failure in 2010 and early 2011 to place Webb in the
Shelter Plus Program, while affording a supposedly less qualified
female the opportunity to enroll in that program, thus enabling her
(but not him) to reside in a single occupancy unit.
Reply [Dkt. # 37 at 4-5]. Under this scenario, the claim is unquestionably late by eight years
since nothing in the record suggests either plaintiff’s pursuit of an administrative remedy for that
specific occurrence or a breached conciliation agreement.
Plaintiff counters that his claim is not time-barred “because this has been an ongoing and
continuous action by the defendant,” and the instant complaint is based “on the last and most
recent occurrence dated February 1st 2017, in which the defendant themselves acknowledge
OHR, HUD, and letters addressed directly to legal counsel of discrimination complaint.” Opp’n
[Dkt. # 36 at 1-2]. Plaintiff’s version is more in line with the record. See Webb, 993 F.3d at 973
(“Although Webb’s amended complaint did not restate the factual allegations from the original
complaint, the amended complaint refers to his ‘[HUD] . . . complaint of housing
discrimination,’ which laid out the allegations underlying his sex discrimination claim.”); id. at
971 (citing Letter of Determination, D.C. Office of Human Rights 2 (Feb. 12, 2018); Webb,
2019 WL 6877835, at *2 (quoting portions of OHR’s no probable cause determination
“[f]ollowing an investigation and an exhaustive analysis”). And at this motion-to-dismiss stage,
the Court “must grant plaintiff the benefit of all inferences that can be derived from the facts
alleged.” Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000) (internal
quotation marks and citation omitted).
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It is without question that OHR’s decision is integral to the timing of plaintiff’s claims.
Recall that on June 15, 2017, OHR received plaintiff’s “timely” gender discrimination claims
arising from the “most recent” conduct that allegedly began on February 1, 2017, and it issued a
final determination on February 12, 2018. Before OHR’s involvement, the FHA’s two-year
statute of limitations, equating to 730 days, had run for 133 days or four months (February 1,
2017 to June 14, 2017). During the administrative proceeding, the limitations period was tolled
for 242 days or seven months (June 15, 2017 to February 12, 2018). Once OHR issued its
decision, plaintiff had 597 days (roughly nineteen months) remaining, or until October 2, 2019,
to file his FHA claim. The filing of this lawsuit on December 13, 2018, was well within the
applicable statute of limitations, and defendant has asserted no other plausible ground for
dismissal. 1 Therefore, the motion to dismiss the FHA claim will be denied.
2. The Community Partnership’s Motion to Dismiss
In addition to adopting U.S. VETS’s argument for dismissal under Rule 12(b)(6),
Community Partnership seeks dismissal under Rule 12(b)(5) for insufficient service of process.
See Mem. [Dkt. # 46-1 at 5-7]. Indeed, there is no record of a summons being issued to this
defendant. But in in forma pauperis (IFP) proceedings such as this, the plaintiff relies on the
court officers to prepare and issue the summons and to properly serve the defendant with process
based on information supplied in the complaint. See 28 U.S.C. § 1915(d); Fed. R. Civ. P.
4(c)(3). Therefore, the Court may not penalize plaintiff for the defective service without first
giving him the opportunity to correct any information that may impede the court officers from
performing their duties if such is the problem. Gonzalez v. Holder, 763 F. Supp. 2d 145, 148-49
1
In addition to Rule 12(b)(6), U.S. VETS invokes Rule 8(a) (“General Rules of Pleading”) and Rule 9(b)
(“Pleading Special Matters”). Mot. to Dismiss at 1. It does not argue that the FHA claim is insufficiently
pled, nor could it credibly do so, and Rule 9(b) applies to common law claims of fraud or mistake.
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(D.D.C. 2011). On the other hand, the Court cannot exercise personal jurisdiction over
Community Partnership without its consent or an executed waiver of service under Federal Rule
4(d). Omni Cap. Int'l, Ltd. v. Rudolf Wolff & Co., 484 U.S. 97, 104 (1987). So, the Court will
deny Community Partnership’s motion to dismiss without prejudice and direct service of
process.
3. Plaintiff’s Motion to Amend
Finally, the proposed second amended complaint [Dkt. # 38-1], to the extent intelligible,
presents a claim under the D.C. Consumer Protection Procedures Act and common law claims of
fraud and breach of contract. As before, the Court declines pursuant to 28 U.S.C. § 1367(c)(3) to
exercise supplemental jurisdiction over the non-federal claims, and the proposed pleading adds
nothing new to the surviving federal claim. Therefore, plaintiff’s motion to file a second
amended complaint will be denied as futile. See Pietsch v. McKissack, 677 F. Supp. 2d 325, 328
(D.D.C. 2010) (“An amended complaint is futile if it merely restates the same facts as the
original complaint in different terms, reasserts a claim on which the court previously ruled, fails
to state a legal theory or could not withstand a motion to dismiss.”).
IV. CONCLUSION
For the foregoing reasons, each defendant’s motion to dismiss is denied as is plaintiff’s
motion to amend the complaint. A separate order accompanies this Memorandum Opinion.
__________s/s__________________
COLLEEN KOLLAR-KOTELLY
United States District Judge
DATE: October 29, 2021
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