Evans v. UDR, INC. , 644 F. Supp. 2d 675 ( 2009 )

644 F.Supp.2d 675 (2009)

Robin M. EVANS and East Coast Solutions, Inc., Plaintiffs,
v.
UDR, INC., (f/k/a United Dominion Realty Trust, Inc.), UDR of NC, Limited Partnership, Rebecca Lynn, in her official capacity as Property Manager of Forest Hills Apartment Homes, and Rachelle Jacobs, in her official capacity as District Manager, UDR, Inc. and UDR of NC, Limited Partnership, Defendants.

No. 7:07-CV-136-FL.

United States District Court, E.D. North Carolina, Southern Division.

March 24, 2009.

Jack Holtzman, Susan H. Pollitt, Disability Rights of North Carolina, Raleigh, NC, for Plaintiffs.

A. Bartlett White, Hatch Little & Bunn, LLP, Raleigh, NC, Theresa L. Kitay, Marina Del Rey, CA, for Defendants.

ORDER

(References to Sealed Material Redacted)

LOUISE W. FLANAGAN, Chief Judge.

This matter is before the court on defendants' motion for summary judgment, (DE # 30), the memorandum and recommendation ("M & R") of United States Magistrate Judge James E. Gates, (DE # 43), plaintiffs' timely objections to the M & R, and defendant's response. (DE ## 47, 52.) In this posture, the issues presented are ripe for decision.

Statement of the Case

Plaintiffs initiated this action by complaint filed August 9, 2007, (DE # 1), seeking declaratory, injunctive and monetary relief based on defendants' denial of plaintiff Robin Evans's ("Evans") application for an apartment and subsequent failure to consider a requested "reasonable accommodation" of Evans's alleged disability, in violation of the Fair Housing Act ("FHA"), as amended, 42 U.S.C. § 3601 et seq. Defendants timely answered denying any violation of the FHA. (DE # 19.) After discovery, plaintiffs stipulated to dismissal of their claims to injunctive relief in this action as to all defendants. (DE # 26.) Defendants then filed the instant motion for summary judgment, asserting that their decision to deny Evans's application for an apartment was based solely on her criminal record, not on her alleged disabilities.^[1] After the parties completed briefing on the instant summary judgment motion, the United States Magistrate Judge recommended granting defendants' motion for summary judgment. Plaintiffs' timely objected to the M & R, and defendants have now responded. In this posture, the issues raised in their motion for summary judgment are ripe for decision.

Statement of the Undisputed Facts

The salient facts in this case are not in dispute for purposes of the instant motion. Plaintiff East Coast Solutions, Inc. ("ECS") is a North Carolina non-profit corporation with its principal place of business in Wilmington, North Carolina. (Compl. ¶ 8.) ECS provides substance abuse treatment, housing and supportive services to alcoholics and drug addicts. (Id.) To this end, ECS operates the SEAISE Program, a highly structured, yearlong intensive substance abuse program for women with young children. (Id. at ¶ 9, 18.) The SEARISE Program is the only substance abuse program in the New Hanover County, North Carolina, area that accepts and provides housing and rehabilitation services to women with one or more children. (Id. at ¶ 9.) As part of the SEARISE Program, ECS has rented a group of apartments in the Forest Hills Apartment Homes complex ("Forest Hills"). (Id. at ¶ 9.) Residence in one of these apartments is a necessary component of the SEARISE Program. (Id.)

Evans is a young mother with diagnosed mental disabilities who is recovering from substance abuse and addiction (collectively her "disabilities").^[2] (Id. at ¶ 7.) [redacted text] Evan's youngest son was taken from her by the local Department of Social Services in 2007, and one of the prerequisites for Evans to be granted custody of him is her participation in the SEARISE Program. (Compl. ¶ 16.) Evans is an approved applicant to the SEARISE Program who is not a current user of alcohol or illegal drugs. (Id. at ¶ 14.) However, to participate in the Program. Evans needed to qualify as an occupant of one of the Forest Hills apartment units by completing defendants' application form and satisfying defendants' qualification requirements. (Id. at ¶ 23; Pls. Mem. in Opp'n 2, DE # 34.)

Defendant UDR, Inc. is a private corporation organized under Maryland law. (Compl. ¶ 10.) Defendant UDR of North Carolina is a North Carolina limited partnership. (Id. at ¶ 11.) At all times relevant to the instant motion, UDR and UDR of North Carolina (collectively "UDR") jointly owned, operated, and/or managed the Forest Hills apartment complex. (Roger J. Ivey Aff. ¶ 3, DE # 30-13.) Defendant Rebecca Lynn ("Lynn") was employed by UDR as the Property Manager (also known as "Community Director") of Forest Hills at the times relevant to the instant motion. (Compl. ¶ 12; Rebecca Lynn Aff. ¶ 2, DE # 30-14.)^[3] Defendant Rachelle Jacobs ("Jacobs") was, at all times relevant to the instant motion, employed by UDR as the District Manager in Wilmington, North Carolina. (Compl. ¶ 13.)

Evans was accepted into the SEARISE Program on or about April 16, 2007, at which time she filled out the rental application form for Forest Hills. (Compl. ¶ 29; Evans's Rental Application, Defs.' Ex. 2, DE # 30-4.) Evans truthfully completed the section of the rental application form that asked about her criminal history. (Evans's Rental Application, Defs.' Ex. 2.) Evans's criminal history consists, in relevant part,^[4] of a 2002 arrest and conviction by way of a guilty plea for misdemeanor simple assault.^[5] (Compl. ¶ 30; Report on Evans's Crim. Hist. at 3). Pursuant to defendants' application policy,^[6] Evans's application was submitted to a criminal history screening conducted by a third party vendor. (UDR Statement of Rental Policy; Ivey Aff. ¶ 5.) Because of Evans's 2002 arrest and conviction, the third party vendor reported a recommendation of "deny" for Evans's application. (Lynn Aff. ¶ 4.)

By letter dated May 25, 2007, Jane Albers, Executive Director of ECS, contacted Lynn explaining that Evans's conviction was a result of her disabilities and requesting UDR provide Evans a reasonable accommodation "by being flexible in its application of its ``no criminal conviction' policy and allowing Ms. Evans to reside in one of the apartments" rented by ECS. (ECS Letter, DE #30-7.) On July 17, 2007, defendants denied plaintiffs' request for a reasonable accommodation. (Compl. ¶ 34-35.) On behalf of plaintiffs, the North Carolina Justice Center ("NC Justice Center") sent defendants a letter dated July 20, 2007, seeking an explanation for defendants' refusal of a reasonable accommodation and renewing plaintiffs' request for such accommodation. (NC Justice Center Letter, DE # 30-8.) Defendants responded by letter dated August 6, 2007, asserting that plaintiffs' request did not constitute an "accommodation" as the term is used in the FHA because it was Evans's conviction, not her disability, which led to defendants' refusal of her application.^[7] (Kitay Letter, DE # 30-10.)

On August 9, 2007, plaintiffs commenced the instant action. With benefit of briefing from all parties and the M & R from the magistrate judge, the issues raised by the instant motion for summary judgment are ripe for decision.

Discussion

Summary judgment is appropriate, under Rule 56(c), "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). A fact is material if it might affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In deciding a motion for summary judgment, the court construes evidence in the light most favorable to the nonmoving party and draws all reasonable inferences in the nonmovant's favor, Anderson, 477 U.S. at 255, 106 S.Ct. 2505.

A party seeking summary judgment "bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the [record] which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the moving party has met its burden, the non-moving party must then "set forth specific facts showing that there is a genuine issue for trial." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (quoting FED. R.CIV.P. 56(e)).

In addressing a party's objection to an M & R, the district court "shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1)(C). Upon careful review of the record, "the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." Id.; see Camby v. Davis, 718 F.2d 198, 200 (4th Cir.1983).

The FHA was "enacted ... to provide for ``fair housing throughout the United States,'" Bryant Woods Inn v. Howard County, 124 F.3d 597, 602 (4th Cir.1997). To accomplish this, the FHA "makes it unlawful, inter alia, to discriminate in the sale or rental of housing or otherwise to make housing unavailable to a buyer or renter because of that buyer's or renter's handicap or the handicap of certain persons associated with the buyer or renter." Id. at 602-03 (citing 42 U.S.C. § 3604(f)). Discrimination for FHA purposes includes "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)(B).^[8] A "handicap" is defined in the FHA as

(1) a physical or mental impairment which substantially limits one or more of such person's major life activities, (2) a record of having such an impairment, or (3) being regarded as having such an impairment, but such term does not include current, illegal use of or addiction to a controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)).

42 U.S.C. § 3602(h).^[9] For purposes of the instant motion, it is undisputed that Evans suffered from mental disabilities that qualify as handicaps under the FHA.^[10] (See Defs.' Mem. 8 n. 3, DE # 30.)

In interpreting the FHA, the Supreme Court has held that the FHA has a "``broad and inclusive' compass" and receives a correspondingly "generous construction." City of Edmonds v. Oxford House, Inc., 514 U.S. 725, 731, 115 S.Ct. 1776, 131 L.Ed.2d 801 (1995) (citing Comm'r v. Clark, 489 U.S. 726, 739, 109 S.Ct. 1455, 103 L.Ed.2d 753 (1989)). As such, exceptions to the FHA's protections are generally "read narrowly in order to preserve the primary operation of the [statute's policy]." Id. at 731-32, 109 S.Ct. 1455. However, the FHA does not grant disabled individuals a "blanket waiver" from all facially neutral policies and rules. Bryant Woods Inn, 124 F.3d at 603. Instead, the FHA requires those subject to its requirements to provide "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.

The Fourth Circuit has developed a three-pronged test for determining whether a reasonable accommodation is required under the FHA. Accommodations are required under the FHA if they are "(1) reasonable and (2) necessary (3) to afford handicapped persons equal opportunity to use and enjoy housing." Bryant Woods Inn, 124 F.3d at 603. Ultimately, the plaintiff bears the burden of proving all three elements by a preponderance of the evidence. Id. (citing Elderhaven, Inc. v. City of Lubbock, 98 F.3d 175, 178 (5th Cir.1996)). The controversy now before the court on the instant motion involves the determination of whether an accommodation is "necessary" in this case. The magistrate judge found that under Fourth Circuit precedent an accommodation is "necessary" only if there is a causal connection between the proposed accommodation and the equal opportunity to be afforded the person with a disability. (M & R ___ (citing Bryant Woods Inn, 124 F.3d at 604).) In other words, there must be a showing that the "desired accommodation will affirmatively enhance a disabled plaintiff's quality of life by ameliorating the effects of the disability." Bronk v. Ineichen, 54 F.3d 425, 429 (7th Cir.1995).

In briefing for both the instant motion and objection to the M & R, plaintiffs vigorously assert that the requisite causal connection between the proposed accommodation and the opportunity to be afforded her is present. Plaintiffs argue that, for purposes of this motion, it is undisputed that Evans's 2002 arrest and conviction were directly related to her mental disabilities and her substance abuse problems. Further, they argue it is clear that without the proposed accommodation Evans will not have an equal opportunity to use and enjoy the housing she seeks and needs for her treatment. Therefore, plaintiffs contend that they satisfy both the second and third prongs of the Bryant Woods Inn test, and because the question of whether an accommodation is reasonable or not is a fact-intensive question not usually suitable for disposition by summary judgment, this court should reject the M & R and deny defendants' motion.

Though plaintiffs present some compelling arguments, after a thorough review of the statute, relevant case law, briefings, and submissions, this court finds that it cannot agree with plaintiffs. As an initial matter, as the magistrate judge correctly noted, the FHA does not prohibit landlords from denying a disabled person's rental application based on his criminal record. (M & R ___ _ ___ (citing Talley v. Lane, 13 F.3d 1031 (7th Cir. 1994)).) Plaintiffs also correctly counter that the facts of Talley are easily distinguished from the instant case. In Talley, the plaintiff, Talley, was disabled as a result of his statutory blindness caused by bilateral cataracts. Talley, 13 F.3d at 1032. After being approved for Supplemental Security Income ("SSI"), the plaintiff was convicted and imprisoned for cocaine possession and the unlawful use of a weapon. Id. Upon his release from prison, Talley was again approved for SSI with a primary diagnosis of alcohol addiction and a secondary diagnosis of drug addiction. Id. Thereafter, he applied for disability housing and was rejected on the basis of his lengthy criminal history that dated back 20 years. Id. In arguing that this denial violated the FHA, Talley never alleged that his denial was based on discrimination related to his handicap. Id. at 1034. The Seventh Circuit found that it was within the landlord's discretion to find that individuals with criminal histories involving "property and assaultive crimes would be a direct threat to other tenants and to deny their applications." Id. Talley's criminal history prevented him from being an otherwise qualified individual. Id. As such, the protections against discrimination embodied in the FHA did not apply to him where he was denied occupancy because of his criminal history. Id.

Talley's situation was, in virtually every respect, nothing like Evans's. Where Talley had an extensive criminal history completely unrelated to his disabilities, Evans has a single criminal conviction on her record for which her rental application was denied and the evidence before this court indicates that her conviction was related to her mental disabilities and substance abuse. Moreover, Evans has specifically alleged that she was discriminated against because of her disability. Nevertheless, the basic proposition of Talley, that landlords may reject disabled individuals on the basis of their criminal convictions, emerges from these distinctions intact. And that proposition ultimately holds important implications for this case.

Plaintiffs contend that the magistrate erred in a number of ways in his analysis. In particular, they argue that the magistrate judge erred in relying on case law that held that landlords did not have to make any accommodation for disabled individuals who could not satisfy income requirements because of their disabilities. In so doing, they argue that the magistrate judge relied on legal reasoning that was explicitly rejected by the Supreme Court in US Airways, Inc. v. Barnett, 535 U.S. 391, 122 S.Ct. 1516, 152 L.Ed.2d 589 (2002). In relying on this line of cases the magistrate judge quoted Salute v. Stratford Greens, 136 F.3d 293 (2d Cir. 1998),^[11] for the proposition that disabled individuals who cannot satisfy income requirements should not receive an accommodation to a landlord's policy of denying Section 8 applicants because they are treated equally as compared to other lowincome individuals. (M & R at ___.) The Second Circuit in that case found that

what stands between these plaintiffs and the apartments at Stratford' Greens is a shortage of money, and nothing else. In this respect, impecunious people with disabilities stand on the same footing as everyone else. Thus, the accommodation sought by plaintiffs is not "necessary" to afford handicapped persons "equal opportunity" to use and enjoy a dwelling.

Salute, 136 F.3d at 302. In other words, the Second Circuit rejected the notion that the FHA's provisions may require that a disabled individual sometimes, receive preferential treatment vis-á-vis an otherwise similarly situated individual.

Plaintiffs correctly contend that in Barnett the Supreme Court disavowed this type of reasoning in the ADA context. See Barnett, 535 U.S. at 397, 122 S.Ct. 1516. There, the Court noted that arguments like that advanced by the Second Circuit in Salute ignore "that preferences will sometimes prove necessary to achieve the Act's basic equal opportunity goal." Id. As such, "reasonable accommodations" are sometimes necessary to permit those with disabilities to receive the same opportunities that those without disabilities "automatically enjoy." Id. "By definition any special ``accommodation' requires the employer to treat an employee with a disability differently, i.e., preferentially. And the fact that the difference in treatment violates an employer's disability-neutral rule cannot by itself place the accommodation beyond the Act's potential reach." Id. As a result, the Court found that the ADA may, in certain circumstances, require exemptions from facially neutral rules and policies, like defendants' policy regarding criminal history, to reasonably accommodate individuals with disabilities. Id. at 398, 122 S.Ct. 1516.^[12]

Plaintiffs contend that the holding in Barnett together with similarly situated cases from the Ninth Circuit and other district courts dictate their desired outcome on this motion. Citing Giebeler v. M & B Associates, 343 F.3d 1143 (9th Cir. 2003), plaintiffs contend that the rationale of Barnett, applied to the FHA requires this court to find that plaintiffs' proposed accommodation was "necessary." Giebeler involved a plaintiff who, like Evans, was denied occupancy in an apartment complex on the basis of a facially neutral policy against cosigners. Id. at 1144. The plaintiff there, Giebeler, was disabled by AIDS and, consequently, did not meet the income requirements of an apartment complex in which he sought to live. Id. at 1145-46. As is the case here, Giebeler had a third party who was willing to cosign on the lease while allowing Giebeler to live there.^[13]Id. at 1145. Despite the availability of a ready cosigner, the defendant landlord obdurately refused to consider permitting Giebeler an accommodation. Id. at 1145-46.

Based on those facts, the Ninth Circuit phrased the question before it as whether the FHA "required the apartment owners reasonably to accommodate Giebeler's disability by assessing individually the risk of nonpayment created by his specific proposed financial arrangement, rather than inflexibly applying a rental policy that forbids cosigners." Id. at 1144. In addressing this question, the Ninth Circuit found that Barnett provided the most thorough treatment of the reasonable accommodation concept that guided its consideration of the case. The court there found that Barnett stood for two propositions:

First, Barnett holds that an accommodation may indeed result in a preference for disabled individuals over otherwise similarly situated nondisabled individuals. And second, Barnett indicates that accommodations may adjust for the practical impact of a disability, not only for the immediate manifestations of the physical or mental impairment giving rise to the disability.

Giebeler, 343 F.3d at 1150 (emphasis added). In rejecting the Salute line of cases, the Ninth Circuit found that Giebeler's disability was the direct cause of his inability to satisfy the defendant landlord's income requirements, and, consequently, defendant landlord was required by the FHA to provide Giebeler with an accommodation to its no-cosigner policy, provided that accommodation was reasonable and necessary to afford him the equal opportunity to enjoy a dwelling. Id. at 1155.

Plaintiffs contend that the Ninth Circuit's application of Barnett in Giebeler dictates a similar result in this case.^[14] Indeed, the facts of this case are in many ways similar to the facts of Giebeler, with one crucial distinction: in Giebeler, the policy was one that rejected applicants relying on cosigners; here defendants' policy rejects applicants on the basis of their criminal histories. This court finds this distinction persuasively militates against a finding like the one in Giebeler.

Policies against cosigners, such as the one in Giebeler, appear geared primarily at concerns that an individual who could not satisfy the income requirements would potentially default on the lease by failing to make payments, exposing the landlord to monetary losses. A very different rationale underlies defendants' policy against renting to individuals with criminal histories. That policy is based primarily on the concern that individuals with criminal histories are more likely than others to commit crimes on the property than those without such backgrounds. (See Ivey Aff. ¶ 8.) The policy against renting to individuals with criminal histories is thus based concerns for the safety of other residents of the apartment complex and their property.

Most importantly, though, this court concurs with the magistrate judge that accommodating Evans's criminal history is not equivalent to accommodating her mental disabilities. Further, to the extent that Evans's criminal history at issue was caused by her mental disabilities and substance abuse problems, this court finds that her criminal history is not the sort of "practical impact" of a disability that the Supreme Court contemplated in Barnett The focus of the FHA's prohibitions on discrimination against individuals with disabilities was the elimination of stereotypes based on physical and mental disabilities.^[15] H.R.Rep. No. 100-711, at 18 (1988), reprinted in 1988 U.S.C.C.A.N. 2173, 2179. Thus, the FHA

is a clear pronouncement of a national commitment to end the unnecessary exclusion of persons with handicaps from the American mainstream. It repudiates the use of stereotypes and ignorance, and mandates that persons with handicaps be considered as individuals. Generalized perceptions about disabilities and unfounded speculations about threats to safety are specifically rejected as grounds to justify exclusion.

Id. (emphasis added). Specifically, Congress cited the following examples of the forms of discrimination with which it was concerned:

people who use wheelchairs have been denied the right to build simple ramps to provide access, or have been perceived as posing some threat to property maintenance. People with visual and hearing impairments have been perceived as dangers because of erroneous beliefs about their abilities. People with mental retardation have been excluded because of stereotypes about their capacity to live safely and independently. People with Acquired Immune Deficiency Syndrome (AIDS) and people who test positive for the AIDS virus have been evicted because of an erroneous belief that they pose a health risk to others.

Id. (footnotes omitted). The types of stereotypes Congress was concerned with, however, do not include concerns related to the criminal actions of people with mental disabilities where such disabilities are an underlying cause of a crime.

The fact of a criminal conviction in someone's background, even one resulting from a mental disability, is too dissimilar from the types of invidious discrimination Congress prohibited through these Acts to form the basis of the relief sought by plaintiffs.^[16] Many people who suffer from mental disabilities are subjected to irrational discrimination of the type that Congress sought to reduce through the FHA and ADA. However, not all of these people engage in criminal behavior because of their mental disability. For those that do engage in such criminal behavior, there is no indication from Congress that it sought to prohibit landlords from legitimately considering these convictions when making determinations regarding occupancy. To the contrary, Congress was concerned with "[g]eneralized perceptions about disabilities," not about perceptions about the criminal histories of those with disabilities.

This guidance from Congress places the requirement that an accommodation ameliorate the effects of an individual's disability into proper perspective. The effects of a disability with which Congress was concerned are those effects that a proposed accommodation must ameliorate in order for there to be a causal connection between the proposed accommodation and the equal opportunity to be afforded the person with the disability. Thus, if an individual is discriminated against by an apartment complex because it refuses to install a wheelchair ramp, the causal connection exists. However, criminal conduct caused by a mental disability is not an effect of a disability with which Congress was concerned in the FHA, As a result, where an individual suffers from a mental disability that is related to conduct that results in a criminal conviction, the casual connection between the mental disability and the criminal conviction is insufficient for purposes of the FHA to require a landlord to attempt an accommodation from a criminal history rental policy based on that person's disability. Lacking this causal connection, plaintiffs cannot satisfy the "necessary" prong of the Bryant Woods Inn test. Therefore, plaintiffs' arguments fail as a matter of law, and their objections to the M & R are OVERULED.

Conclusion

For all of the foregoing reasons, plaintiffs' objections to the findings of the magistrate judge in the M & R are OVERRULED. Defendants' motion for summary judgment is accordingly GRANTED. The clerk of court is directed to close the case.

MEMORANDUM AND RECOMMENDATION

JAMES E. GATES, United States Magistrate Judge.

This case comes before the court on the motion for summary judgment by defendants UDR, Inc., UDR of NC, Property Manager Rebecca Lynn, and District Manager Rachelle Jacobs (collectively "defendants") (D.E. 30) pursuant to Rule 56 of the Federal Rules of Civil Procedure. Plaintiffs oppose the motion. In addition to memoranda (D.E. 30-2, 34, 41), both sides have filed affidavits and other evidentiary materials (D.E. 30-3 to 30-14, 34-2 to 34-7, and 35-37). The motion was referred to the undersigned Magistrate Judge for review and recommendation, pursuant to 28 U.S.C. § 636(b)(1)(B). For the reasons set forth below, it will be recommended that defendants' motion be allowed.

BACKGROUND

Plaintiffs East Coast Solutions, Inc. ("ECS") and Robin Evans ("Evans") commenced this action pursuant to the Fair Housing Amendments Act ("FHAA"), 42 U.S.C. §§ 3601, et seq. ECS is a nonprofit organization which provides substance abuse treatment, housing, and supportive services for recovering alcoholics and drug addicts, (Compl. (D.E. 1)¶ 8). A program ECS operates, called the South East Area Residential Initiative Self-Sufficiency Endeavor or SEARISE, is a highly structured, intensive, one-year program for women with young children. (Id. ¶¶ 9, 18; Albers Aff. (D.E. 35) ¶ 3). Evans is a young mother who is recovering from substance abuse and addiction, and wishes to participate in ECS's SEARISE program. (Compl. ¶¶ 7, 9).

At all times relevant to the issues before the court, defendants UDR, Inc. and UDR of North Carolina (collectively "UDR") jointly owned, operated, and/or managed apartment complexes throughout North Carolina, including Forest Hills Apartment Homes ("Forest Hills") in Wilmington, North Carolina. (Id. ¶¶ 10, 11; Ivey Aff. (D.E. 30-13) ¶ 3).^[1] Defendant Rebecca Lynn ("Lynn") was employed by UDR as the Property Manager of Forest Hills and defendant Rachelle Jacobs ("Jacobs") was UDR's District Manager in Wilmington. (Compl. ¶¶ 12, 13). ECS has rented a number of apartments at Forest Hills in order to operate the SEARISE program there. (Id. ¶ 19; Albers Aff. ¶ 8).

In January of 2006, Evans gave birth to a son who was removed from her custody by the local department of social services. (Compl. ¶ 16). One condition for Evans to regain custody of her son was her participation in and completion of the SEARISE program. (Id. ¶ 17). ECS accepted Evans into the SEARISE program on or about 16 April 2007 and, as part of her application process, Evans completed a rental application to occupy one of ECS's rental units at Forest Hills. (Id. ¶ 29; Albers Aff. ¶ 7). Evans completed truthfully the section of the rental application which inquired about her criminal history.^[2] Her criminal history includes a 2002 arrest and conviction, based on a plea of guilty, for misdemeanor simple assault related to domestic violence, for which prayer for judgment was continued.^[3] (Compl. ¶ 30; Report on Evans' Crim. Hist. (D.E. # 30-9), p. 3).^[4]

UDR had a policy relating to adult applicants and prospective occupants with a criminal history. The policy reads:

CRIMINAL HISTORY. All applicants and prospective occupants over the age of 18 must submit an application for a criminal history check and verify their criminal history at Management's request. The application or occupancy of any person may be denied at any time based on their criminal history, in Management's sole and absolute discretion. Criminal history for which Management may deny applications or occupancy (on a case by case basis as determined by senior management) include, but are not limited to, arrests for any crimes involving actual or potential physical harm to a person(s) or property, sex or public morals related crimes, crimes involving possession, manufacture, or delivery of any controlled substance, marijuana, drug paraphernalia, or weapons, or fraud or financial crimes (Misdemeanor theft by check may be acceptable if all security deposit(s) and rent payments are paid by money order or cashier's check). Management WILL deny applications or occupancy for all persons arrested for the crimes referenced above whose final disposition includes a conviction, probation, deferred adjudication, court ordered supervision, or pretrial diversion.

(Crim. Hist. Policy (D.E. 30-3) (emphasis added)).

The policy thus gives management the discretion to deny applications and occupancy to an adult with any criminal history, including specifically "arrests for any crimes involving actual or potential physical harm." (Id.). However, management will deny on a non-discretionary basis applications and occupancy for certain crimes "whose final disposition includes a conviction. . . [or] deferred adjudication," again including crimes involving actual or potential physical harm. (Id.). The misdemeanor simple assault by Evans was obviously a crime which involves "actual or potential physical harm"^[5] and its final disposition was both a conviction, based on Evans' plea of guilty, and a deferred adjudication, based on the prayer for judgment continued. Therefore, under UDR's policy, Evans' application was subject to nondiscretionary denial by management.^[6]

Upon receipt of Evan's application, UDR provided Evans' identity to a thirdparty vendor to conduct a criminal history check. (Compl. 1129). The third-party vendor recommended denying Evans' application on the basis of her criminal record. (Lynn Aff. (D.E. 30-14) ¶ 4;^[7] Report Recommending Denial (D.E. 30-6, p. 1)). UDR subsequently denied Evans' rental application on that basis. (Compl. ¶ 32; Letter Denying Evans' Appl'n (D.E. 30-6, p. 2)).

On 25 May 2007, ECS wrote to Lynn to advise that Evans was a person with a mental disability and a recovering substance abuser, and that her former conviction was directly related to and resulted from her mental disability and substance abuse^[8] (referred to collectively as "Evans' disability" or "her disability"). (Compl. ¶ 33; ECS 25 May 2007 Letter (D.E. 30-7)). ECS requested that Evans be granted a reasonable accommodation to UDR's criminal history policy by allowing Evans to occupy one of the apartment units at Forest Hills. (Compl. ¶ 33; ECS 25 May 2007 Letter). Lynn advised ECS that the matter was being referred to Jacobs for review. (Compl. ¶ 34). Thereafter, on 17 July 2007, ECS was advised that UDR would only consider a discretionary override of its criminal history policy for Evans if the misdemeanor had been dismissed by the court, and there were documents proving such dismissal. (Id. ¶ 35).

On 20 July 2007, ECS and Evans again requested that UDR conduct an individualized assessment of Evans' circumstances in order to flexibly apply its policy and grant a reasonable accommodation pursuant to the Fair Housing Act. (Compl. ¶ 37; ECS 20 July 2007 Letter (D.E. 30-8)). On 6 August 2007, UDR advised that it was unwilling to make an exception to its criminal history policy. (Compl. ¶ 38; UDR 6 August 2007 Letter (D.E. 30-10)).

Plaintiffs later commenced this lawsuit. In their complaint, plaintiffs seek declaratory and injunctive relief, as well as damages, attorneys fees, and costs. (Compl., pp. 14-15). Defendants deny any wrongdoing. (Answer (D.E. 19)).

Although in the litigation to date defendants have also disputed that Evans has a disability and that the assault conviction was related to such a disability, they concede these facts for purposes of their summary judgment motion. (Compl. ¶¶ 7, 31; Ans. ¶¶ 7, 31; Defs.' Mem. (D.E. 30-2), p. 8 n. 3). The court will accordingly deem these facts to be established for purposes of the motion.

DISCUSSION

I. STANDARD OF REVIEW

It is well established that a motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure should be granted only "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In analyzing whether there is a genuine issue of material fact, all facts and inferences drawn from the facts must be viewed in the light most favorable to the nonmoving party. Evans v. Techs. Applications & Serv. Co., 80 F.3d 954, 958 (4th Cir.1996).

The burden is on the moving party to establish the absence of genuine issues of material fact and "a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Celotex Corp., 477 U.S. at 323, 106 S.Ct. 2548; Teamsters Joint Council No. 83 v. Centra, Inc., 947 F.2d 115, 119 (4th Cir.1991) ("[W]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, disposition by summary judgment is appropriate."). If the movant meets its burden, then the non-moving party must provide the court with specific facts demonstrating a genuine issue for trial in order to survive summary judgment. Celotex, 477 U.S. at 323, 106 S.Ct. 2548. The non-moving party is not permitted to rest on conclusory allegations or denials, and a "mere scintilla of evidence" will not be considered sufficient to defeat a summary judgment motion. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). For the reasons discussed below, the court believes that there are no material facts in dispute and that this case is appropriate for disposition by summary judgment.

II. OVERVIEW OF FAIR HOUSING ACT

The FHAA was enacted to provide "fair housing throughout the United States," 42 U.S.C. § 3601, and prohibits discrimination in housing against people with disabilities, id. § 3604(f)(1). Prohibited discrimination under the FHAA includes "a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford such person [with a disability] equal opportunity to use and enjoy a dwelling." 42 U.S.C. § 3604(f)(3)(B); City of Edmonds v. Oxford House, Inc., 514 U.S. 725, 729, 115 S.Ct. 1776, 131 L.Ed.2d 801 (1995).^[9] In other words, under the FHAA, accommodations must be made if three requirements are met: (1) they are necessary to afford people with disabilities (2) an equal opportunity to housing and (3) are reasonable for the housing provider to make. Bryant Woods Inn, Inc. v. Howard Cty., 124 F.3d 597, 603 (4th Cir.1997).^[10] "Whether a requested accommodation is required by law is ``highly fact-specific, requiring case-by-case determination.'" Groner v. Golden Gate Gardens Apts., 250 F.3d 1039, 1044 (6th Cir.2001) (quoting U.S. v. California Mobile Home Park Mgmt. Co., 29 F.3d 1413, 1418 (9th Cir. 1994)). Because the concept of "reasonable accommodation" was developed in cases under the Rehabilitation Act, the Fourth Circuit has instructed that it is appropriate to look to Rehabilitation Act cases for guidance in interpreting the FHAA. Bryant Woods, 124 F.3d at 603; see also Wells v. State Manufactured Homes, Inc., No. 04-169-P-S, 2005 WL 758463, at *4 (D.Me. 11 March 2005) ("Claims alleging failure to accommodate under the ADA and the Fair Housing Act are also analyzed according to the same standards."), aff'd, 2005 WL, 850851 (D.Me. 12 Apr. 2005).

In order for an accommodation to be deemed "necessary," there must be some causal connection between the proposed accommodation and the equal opportunity to be afforded the person with a disability. Bryant Woods, 124 F.3d at 604. The requisite nexus exists "when the requested accommodation provides a ``direct amelioration of a disability's effect.'" Bell v. Tower Mgmt. Serv., L.P., No. 07-C5305(FLW), 2008 WL 2783343, at *7 (D.N.J. 15 July 2008).

Similarly, the "equal opportunity" element directly relates to whether the accommodation is necessary and requires equal treatment between those with a disability and those without. Though in some cases the requested accommodation may provide an increased benefit to people with disabilities above those that would be provided to individuals who are not disabled, the FHAA does not necessarily require this result in every case. Bryant Woods, 124 F.3d at 605; Oxford House, Inc. v. City of Raleigh, 5:98-CV-113-BO, 1999 WL 1940013, at *4 (E.D.N.C. 26 Jan. 1999) ("As the Fourth Circuit has stated, federal fair housing laws require equal opportunities in housing, not a superior advantage."). Instead, the statute requires accommodations necessary to ameliorate the effect of a plaintiffs disability so that he or she may compete equally with non-disabled individuals in the housing market. Geter v. Horning Bros. Mgmt., 537 F.Supp.2d 206, 209 (D.D.C.2008).

In determining whether an accommodation is "reasonable," the court must balance the burdens imposed on the defendant against the benefits to the plaintiff. Hubbard v. Samson Mgmt. Co., 994 F.Supp. 187, 190 (S.D.N.Y.1998). "Reasonable accommodations do not require accommodations which impose undue financial and administrative burdens or changes, adjustments or modifications to existing programs that would be substantial, or that would constitute fundamental alterations in the nature of the program." Bryant Woods, 124 F.3d at 604 (internal citations omitted). A reasonable accommodation may, however, involve modifying a general rule or policy in order to make it less burdensome on an individual with a disability. Hubbard, 994 F.Supp. at 190; see also Southeastern Cmty. Coll. v. Davis, 442 U.S. 397, 412-13, 99 S.Ct. 2361, 60 L.Ed.2d 980 (1979) (accommodations are not reasonable if they require a fundamental alteration in the nature of a program, or would impose "undue or administrative burdens" on defendant); Bangerter v. Orem City Corp., 46 F.3d 1491, 1502 (10th Cir.1995) ("A reasonable accommodation involves changing some rule that is generally applicable so as to make its burden less onerous on the handicapped individual.") (internal citations omitted). With these principles in mind, the court will now turn to the merits of defendants' motion.

III. WHETHER MODIFICATION OF UDR'S CRIMINAL HISTORY POLICY IS NECESSARY TO ACOMMODATE EVANS' DISABIITY

By their motion, defendants contend that, as a matter of law, the FHAA did not require them to modify their criminal history policy with respect to Evans' assault conviction in order to accommodate her disability. The initial ground upon which they rely is that modification of their policy was not an accommodation that was "necessary" under the FHAA.^[11] They argue specifically that an insufficient nexus existed between the requested accommodation and Evans' disability to render the accommodation necessary. Neither defendants nor plaintiffs have identified any case law directly on point, and the court has not located any such cases either. Based on an extensive review of the case law that does exist and the principles established in those cases, the court finds itself in agreement with defendants' position.

At the outset, the court notes that the FHAA clearly does not prohibit landlords from denying a person occupancy on the basis of his criminal record. See, e.g., Talley v. Lane, 13 F.3d 1031, 1034 (7th Cir.1994). In Talley, the Seventh Circuit affirmed the dismissal of a complaint filed by plaintiff alleging various disabilities including blindness, alcohol addiction, and drug addiction whose rental application was denied by the defendant housing authority because of plaintiffs criminal record. Plaintiff claimed that the denial violated the FHAA. Id. The Seventh Circuit recognized the permissibility of using tenant selection criteria to determine whether an applicant is qualified for a dwelling available as long as these criteria are applied to all applicants. Id. It further acknowledged the housing authority's discretion to find that individuals "with a history of convictions for property and assaultive crimes would be a direct threat to other tenants and to deny their applications," and stated that "consideration of an applicant's criminal record is not forbidden under both the Fair Housing Act and the Rehabilitation Act." Id. What distinguishes the instant case from Talley is that the plaintiff there did not expressly argue that his criminal history was related to his disabilities. Here, of course, the fact that Evans' criminal history is related to her disability is at the core of plaintiffs' claim. See also Harris v. Polk County, Iowa, 103 F.3d 696, 697 (8th Cir.1996) (court affirmed summary judgment for employer who refused to hire plaintiff because of past criminal record despite allegations that her shoplifting crime was caused by a mental illness; court held that ADA does not require employers to overlook infractions of the law and upheld employer's right to hold disabled employees to same standard of law-abiding conduct as all other employees); Houck v. City of Prairie Vill., 978 F.Supp. 1397, 1403 (D.Kan.) ("A person who commits a criminal act as a result of a disabling condition is not excused from the employment consequences of the criminal act because of the disability."), aff'd, 166 F.3d 347 (10th Cir.1997).

As Talley implicitly recognizes, Evans' criminal history is distinct from Evans' disability and is not itself a disability. Many people with the same disability as Evans do not have a criminal record and, conversely, many people with a criminal record do not have her disability (or any other disability).

The court also notes that UDR's criminal history policy is neutral on its face and is applied equally to all applicants, regardless of disability. Defendants rent a number of their apartments to other SEAISE participants, undercutting any notion that they discriminate against individuals with the same disability suffered by Evans on the basis of such disability per se.

The neutrality of UDR's policy, however, does not necessarily insulate it from modifications that are otherwise necessary to accommodate persons with disabilities. For example, in U.S. Airways Inc. v. Barnett, 535 U.S. 391, 122 S.Ct. 1516, 152 L.Ed.2d 589 (2002), the Supreme Court held that, in at least some circumstances, an exception to a neutral seniority rule can be a required accommodation. 535 U.S. at 397, 122 S.Ct. 1516 ("By definition any special ``accommodation' requires the employer to treat an employee with a disability differently, i.e., preferentially. And the fact that the difference in treatment violates an employer's disability-neutral rule cannot by itself place the accommodation beyond the Act's potential reach."). The case involved a seniority policy which would have allowed other more senior employees to displace plaintiff from a less physically demanding job suitable to his disabilities. Id.

Here, it is readily apparent that the relationship between the proposed modification of the criminal history policy and Evans' disability is attenuated. Evans is being denied housing because of her criminal record, not because of her disability, and she cannot establish that but for her disability, she would have been entitled to housing at Forest Hills. The modification is, in essence, one step removed from the disability and is not directed at meeting Evans' disability-related needs. It concerns past criminal conduct that itself resulted from the disability, not the ongoing diminution of capacity arising from Evans' disability. The proposed modification is not, say, to establish a substance-free zone in the area of Evans' apartment to help ensure that she is not exposed to illicit drugs and the temptation of abusing them again.

The instant case is therefore distinguishable from those in which accommodations ameliorating ongoing diminution in capacity have been found necessary. Representative of such cases are those in which a landlord is required to modify its policy on pets to permit a hearing-impaired person who relies on a dog for hearing assistance to keep the dog in the apartment. E.g., Green v. Hous. Auth. of Clackamas Cty., 994 F.Supp. 1253, 1255 (D.Or.1998). Similarly, the instant case is distinguishable from one in which a condominium complex had a duty to accommodate a resident with multiple sclerosis who requested an indoor parking space notwithstanding a normal policy of first-come, first-served when allocating parking spaces. Shapiro v. Cadman Towers, Inc., 51 F.3d 328, 330, 335 (2d Cir.1995).

The court does not believe that criminal activity is necessarily a practical impact resulting from the type of disability suffered by Evans. In other words, it cannot be said that to accommodate Evans' criminal history would necessarily be equivalent to accommodating her disability because the criminal history necessarily results from the disability. Many individuals with her same disability do not obtain convictions for assaultive behavior. The fact that there are other persons in the SEAISE program at Forest Hills substantiates that fact because, if they had any such convictions, they would not reside there.

Even when a disability does contribute to a person's participation in criminal conduct, as stipulated here, the disability may well be one of any number of causes. This circumstance contrasts with that of a disabling physical disease in which the disease is wholly responsible for impaired mobility or other diminutions in functionality.

Moreover, wrongful intent is an integral part of most crimes, including assault.^[12] In the instant case, the fact that Evans was convicted indicates that the court did not excuse her from criminal responsibility for the assault, notwithstanding her disability. The proposed accommodation would, however, have the effect of excusing her for her conduct due to her disability, at least with respect to housing.

The court finds the instant case to be most comparable to those cases in which the courts have not required modification of landlords' neutral credit and income requirement policies as an accommodation to prospective tenants claiming that their disabilities rendered them impecunious. In those cases, there is lacking the close causal connection between the alleged disability and the requested accommodation that is also missing here. More specifically, the relationship between the disability and diminished income has attributes comparable to those discussed relating to the relationship between Evans' disability and her criminal record. For example, as with the criminal conduct related to Evans' disability, diminished income does not necessarily result from a disability and may have other causes besides the disability. Moreover, in the credit and income policy cases in question the disability is purportedly impairing the worthwhile activity of income generation and accommodation is nevertheless denied. The case for accommodation would appear to be even weaker when, as here, the disability relates to criminal conduct.

A leading case is Salute v. Stratford Greens, 136 F.3d 293 (2d Cir.1998). In that case, the Second Circuit held that a landlord did not violate the FHAA by denying rental applications from prospective tenants in the Section 8 program, a federal program providing housing subsidies to low-income persons with disabilities. Plaintiffs argued that their disabilities prevented them from earning more money and that the landlord's policy of denying Section 8 applicants should be modified to accommodate their low-income status. The court rejected this contention. In finding the causal connection between the proposed modification and defendants' disabilities lacking, the court stated:

what stands between these plaintiffs and the apartments at Stratford Greens is a shortage of money, and nothing else. In this respect, impecunious people with disabilities stand on the same footing as everyone else. Thus, the accommodation sought by plaintiffs is not "necessary" to afford handicapped persons "equal opportunity" to use and enjoy a dwelling.

136 F.3d at 302; see also Sutton v. Freedom Square Ltd., No. 07-14897, 2008 WL 4601372, at *4 (E.D.Mich. 15 Oct. 2008) (court granted summary judgment in FHAA case to landlord who refused to make accommodation to credit policy because plaintiffs requested accommodation went more towards plaintiffs economic condition than disability; court collected cases where other courts "have similarly refused to require accommodations aimed at alleviating financial hardships rather than overcoming obstacles particular to disability."); Bell, 2008 WL 2783343, at *15 (court granted motion to dismiss FHAA claim where plaintiff did not establish nexus between her disability and the requested accommodation; plaintiff alleged that a disability prevented her from working and sought an apartment despite being below minimum income requirements); Rosenthal v. Hershman, No. 4:05CV1024, 2005 WL 3348931, at *3 (E.D. Mo. 7 Dec. 2005) (court granted judgment on pleadings in FHAA case where plaintiff sought accommodation of credit check policy, holding that plaintiffs "bad credit is not the same as his disability, and none of the laws he cites require accommodation of poor credit"); Geter, 537 F.Supp.2d at 209 (court granted defendants' motion for judgment on pleadings on FHAA claim where plaintiff failed to establish necessity of a requested accommodation, namely, adjustment of the due date for rental payments under defendants' policy to accommodate the date on which plaintiff received his disability check); Schanz v. Vill. Apts., 998 F.Supp. 784, 792 (E.D.Mich.1998) (court granted summary judgment against plaintiff who sought as an accommodation modification of income and credit requirements, alleging that he was unable to work as a result of his disability; court held that plaintiff could not "transform his ``financial status' into a ``handicap' in order to secure relief under the FHAA").

The court has considered the authorities upon which plaintiffs rely to support their position that defendants did have a duty to modify their criminal history policy as an accommodation to Evans, but finds them unpersuasive in these circumstances. One of the principal cases they cite is the Barnett case discussed above. While Barnett held that at least in some circumstances making an exception to a seniority rule can be a required accommodation, 535 U.S. at 394, 122 S.Ct. 1516, it did not explicitly reject the requirement that a plaintiff establish a nexus between the disability and the accommodation. Bell, 2008 WL 2783343, at *12.

Plaintiffs also cite to Giebeler v. M & B Assoc., 343 F.3d 1143 (9th Cir.2003). Giebeler involved a plaintiff who had AIDS and could not meet defendants' minimum income policy after his disability prevented him from working. 343 F.3d at 1151. The Ninth Circuit held that defendants had a duty to accommodate plaintiff by flexibly applying their minimum income requirements and found that allowing plaintiffs mother to co-sign with him was a reasonable accommodation. Id. Giebeler, which is not binding authority on this court, arguably conflicts with the other case law cited regarding landlord's credit and income policies. On the other hand, the fact that the case involves AIDS may alone make it unique given the myriad of circumstances particular to that disease.

Another case upon which plaintiffs rely is Freeland v. Sisao LLC, No. CV-07-3741, 2008 WL 906746 (E.D.N.Y. 1 April 2008). There, the plaintiff alleged that defendants failed to reasonably accommodate her disability when they refused to accept her subsidized housing voucher. 2008 WL 906746 at *1. The Freeland court denied defendants' motion to dismiss. The court noted that plaintiff was already a tenant in defendants' building at the time she requested the accommodation, and held that, consistent with Barnett, plaintiff might be able to demonstrate that acceptance of her subsidized housing voucher was a reasonable accommodation of her disability. Id. at *5. Here, of course, Evans was not already a tenant in Forest Hills when she requested the accommodation. To the extent that, Freeland applies a rule contrary to that reflected in the cases previously cited, the court declines to follow it.

Finally, plaintiffs cite to a number of cases involving eviction proceedings against plaintiffs who engaged in mentalhealth related misconduct while tenants and sought accommodations prior to eviction. (See, e.g., Pls.' Mem. (D.E. 34), pp. 11-13 (collecting cases)). In those cases, the courts viewed accommodations as being necessary and decided whether there existed reasonable accommodations which would allow the tenants to remain in their housing and avoid eviction. Needless to say, the fact that those cases involved evictions of existing tenants presents a host of issues not present in the instant case, which involves a prospective occupant's ability to meet general occupancy requirements.

The court concludes that the causal connection between the modification of UDR's criminal history policy requested by plaintiffs and Evans' disability is not sufficiently strong to make that accommodation necessary to provide her an equal opportunity for housing under the FHAA. Defendants therefore did not, as a matter of law, violate the FHAA by not making this modification. Because the court finds dispositive the issue of whether the requested modification was necessary, it need not resolve the other ground for defendants' motion, namely, that the requested accommodation was not reasonable.^[13]

CONCLUSION

For the foregoing reasons, there is no genuine issue as to any material fact and defendants are entitled to judgment as a matter of law, pursuant to Fed. R. Civ. P. 56(c). It is therefore RECOMMENDED that defendants' motion for summary judgment be ALLOWED, and judgment be entered DISMISSING this case with prejudice.

The Clerk shall send copies of this Memorandum and Recommendation to counsel for the respective parties, who have ten business days, or such other period as the court specifies, to file written objections. Failure to file timely written objections bars an aggrieved party from receiving a de novo review by the District Judge on an issue covered in the Memorandum and Recommendation and, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the District Judge.

This 2nd day of February, 2009.

NOTES

[1] The court notes for the record that in arguments on the instant motion for summary judgment defendants also initially contended that Evans failed to disclose her relevant criminal history in response to questions on the rental application she submitted to defendants. (See e.g., Defs.' Mem. at 3, 19, DE # 30.) Defendants asserted that the application completed by plaintiff included language asking whether plaintiff had "[b]een charged, detained, or arrested for a felony, misdemeanor involving a controlled substance, violence to another person or destruction of property. . .?" In fact, this language did not appear on the application form completed by Evans, and Evans accurately and completely filled out her form, a point defendants now concede. (See Defs.' Reply, DE #41.) Consequently, this court has not considered any of defendants' arguments regarding Evans's failure to disclose information on her application. The undersigned, like the magistrate judge, appreciates defendants' acknowledgment of error regarding the language on the application form. This court also is troubled by defendants' apparent lack of care in reviewing the language on Evans's form, however, which defendants submitted as supporting documentation with the instant motion for summary judgment. Accusations such as those leveled by defendants are extremely serious, and should not be made without undertaking a basic level of due diligence.

[2] Though defendants contest plaintiffs claim that Evans suffers a mental disability and that the mental disability was directly related to her 2002 criminal conviction, they do not do so for purposes of the instant motion for summary judgment. (See Compl. ¶¶ 7, 31; Answer ¶¶ 7, 31; Defs.' Mem. at 8 n. 3.) For purposes of this motion, the court accepts as true that plaintiff suffers from a mental disability and substance abuse problems that were related to her 2002 conviction.

[3] The court notes that the Lynn affidavit is not notarized and was not treated as sworn testimony by the magistrate judge. (See M & R at ___, n. 7, DE # 43.) For the same reasons, this court does not treat the Lynn affidavit as sworn testimony.

[4] Evans's record also contains a guilty plea to a charge of misdemeanor larceny, a guilty verdict for reckless driving to endanger, and arrests without conviction for misdemeanor larceny and misdemeanor harassing phone call. (Report on Evans's Crim. Hist., DE # 30-9; Defs.' Ex. 5, DE # 30-7.) The facts of this case, including defendants' rental policies regarding criminal history, indicate that the only criminal history for which Evans could have been denied was her conviction for simple assault. The parties have framed their arguments on the instant motion on that basis, and the court will proceed accordingly.

[5] [redacted text]

[6] Defendants' policy regarding applicants' criminal history reads as follows:

CRIMINAL HISTORY. All applicants and prospective occupants over the age of 18 must submit an application for a criminal history check and verify their criminal history at Management's request. The application or occupancy of any person may be denied at any time based on their criminal history, in Management's sole and absolute discretion. Criminal history for which Management may deny applications or occupancy (on a case by case basis as determined by senior management) include, but are not limited to, arrests for any crimes involving actual or potential physical harm to a person(s) or property, sex or public morals related crimes, crimes involving possession, manufacture, or delivery of any controlled substance, marijuana, drug paraphernalia, or weapons, or fraud or financial crimes (Misdemeanor theft by check may be acceptable if all security deposit(s) and rent payments are paid by money order or cashiers check). Management WILL deny applications or occupancy for all persons arrested for the crimes referenced above whose final disposition includes a conviction, probation, deferred adjudication, court ordered supervision, or pretrial diversion.

(UDR Statement of Rental Policy, DE # 30-3.)

[7] This letter also asserted that the FHA "does not require preferential treatment for people with disabilities." (Kitay Letter, DE #30-10.), As will be made clear, this line of reasoning was specifically disavowed by applicable Supreme Court precedent. Such arguments are, therefore, incorrect as a matter of law. However, as discussed below, this does not mean that defendants' conclusion that they were not required to make a reasonable accommodation for Evans was wrong as a matter of law.

[8] "Reasonable accommodation" is a concept developed originally in the context of the Rehabilitation Act ("RA"), 29 U.S.C. § 701, et seq., and adopted by Congress in the FHA. Bryant Woods Inn, 124 F.3d at 603. The Fourth Circuit, therefore, held that courts may look to RA cases in interpreting the FHA. Id. The concept of reasonable accommodation also appears in the text of the Americans with Disabilities Act of 1990 ("ADA"). See 42 U.S.C. § 12112(b)(5)(A). Given the similar objectives behind the FHA and the ADA, this court finds no reason to apply a different understanding of "reasonable accommodation" in the separate circumstances those Acts cover. Consequently, the court will apply relevant ADA cases interpreting "reasonable accommodation" in its analysis of the FHA in the instant case. See Giebeler v. M & B Assocs., 343 F.3d 1143, 1149 (9th Cir.2003) (explaining that the Ninth Circuit has found "no significant difference in the analysis or rights and obligations created by" the RA and ADA).

[9] Substance abuse problems may qualify as handicaps under the FHA, provided the individual alleging disability "can demonstrate that they are being regarded as having an impairment and that they are not currently using an illegal drug." United States v. S. Mgmt. Corp., 955 F.2d 914, 921 (4th Cir.1992)

[10] The term "handicapped" should be considered synonymous with "disabled" for purposes of this opinion. Congress changed terminology from the adoption of the RA and the FHA to the ADA from "handicapped" to "disabled" as a reflection of its "awareness that individuals with disabilities find the term ``handicapped' objectionable." Helen L. v. Di-Dario, 46 F.3d 325, 330 n. 8 (3d Cir.1995).

[11] The magistrate judge specifically cited several cases from other circuits in addition to Stratford Greens for this proposition. See Sutton v. Freedom Square Ltd., No. 07-14897, 2008 WL 4601372, *4 (E.D.Mich. 15 Oct. 2008); Bell v. Tower Mgmt. Serv., L.P., No. 07-CV-5305(FLW), 2008 WL 2783343, *15 (D.N.J. July 15, 2008); Rosenthal v. Hershman, No. 4:05CV1024, 2005 WL 3348931, *3 (E.D.Mo. Dec. 7, 2005); Geter v. Horning Bros. Mgmt., 537 F.Supp.2d 206, 209 (D.D.C. 2008); Schanz v. Vill. Apts., 998 F.Supp. 784, 792 (E.D.Mich.1998).

[12] It is worth noting here that, though Barnett provides some support for plaintiffs by undermining the logic of some cases relied upon by the magistrate judge, it is not an unalloyed boon for plaintiffs. The Court in Barnett went on to hold that accommodations that violate a facially neutral policy will "not be reasonable in the run of cases." Barnett, 535 U.S. at 403, 122 S.Ct. 1516.

[13] In Giebeler, the plaintiff's mother, who did satisfy the apartment complex's income requirements, applied for a rental apartment with Giebeler to be the sole occupant. The court notes that here, as in Giebeler, a third party, ECS, also offered some responsibility for the apartments in question. In fact, the apartments in this case are rented and paid for by ECS. (See Albers Aff. ¶ 4, DE # 34-2.)

[14] Giebeler, of course, is not binding precedent on this court. However, Giebeler appears to be the only related circuit court case that deals "with a similarly situated issue post-Barnett, and is therefore instructive, even though the court ultimately declines to extend Giebeler's holding to the case now before it.

[15] These protections for disabled Americans also find expression in the ADA through the purpose for its requirement for reasonable accommodations for disabled individuals, which is "to diminish or to eliminate the stereotypical thought processes, the thoughtless actions, and the hostile reactions that far too often bar those with disabilities from participating fully in the Nation's life, including the workplace." Barnett, 535 U.S. at 401, 122 S.Ct. 1516.

[16] The court recognizes that at least one court cited by plaintiffs apparently arrived at a different conclusion regarding criminal conduct resulting from a mental disability. See Roe v. Sugar River Mills Assocs., 820 F.Supp. 636 (D.N.H.1993). The court there held that the FHA required that the landlord make an effort to accommodate the tenant's alleged disability before it could find that the tenant constituted a threat to the safety of others. For reasons discussed supra, this court respectfully disagrees with the holding of the court in that case. This disagreement is not based on any distinction with that case based on the fact that the alleged discrimination in that case was against an individual with a mental disability who was already living in the apartment. The distinction between alleged discrimination against a mentally disabled individual applying for occupancy and one who is already an occupant has no legal significance, and the protections of the FHA apply in both settings. See 42 U.S.C. § 3604(f)(1)(B) (prohibiting discrimination on the basis of a disability of "a person residing in or intending to reside in" the dwelling to be rented).

Plaintiffs also cite a series of cases in which courts have found that conduct resulting from a disability may form the basis of a reasonable accommodation requirement. However, each of these cases deals with a situation different from the one before the court in that they all apply to non-criminal conduct resulting from a mental disability. See Groner v. Golden Gate Gardens Apts., 250 F.3d 1039, 1045-46 (6th Cir.2001); Roe v. Housing Authority of City of Boulder, 909 F.Supp. 814, 822-23 (D.Colo.1995); Marthon v. Maple Grove Condominium Ass'n, 101 F.Supp.2d 1041, 1051-52 (N.D.Ill.2000); Arnold Murray Const., LLC v. Hicks, 621 N.W.2d 171, 175 (S.D.2001); Douglas v. Kriegsfeld, 884 A.2d 1109, 1125 (D.C.2005); Boston Housing Authority v. Bridgewaters, 452 Mass. 833, 898 N.E.2d 848 (Mass.2009).

[1] UDR, Inc. apparently sold the Forest Hills property in March of 2008. (Ivey Aff. (D.E. 30-13) ¶ 3). The parties have stipulated (see D.E. 26) that the sale of the property mooted certain elements of the relief plaintiffs seek (e.g., require an accommodation in UDR's criminal history policy in order to allow Evans to live in Forest Hills), but the remaining elements continue to be at issue (e.g., declaratory relief, damages). The ownership change therefore does not moot this action in its entirety.

[2] In their motion and supporting memorandum, defendants argued that Evans failed to disclose her criminal history on her rental application. Specifically, defendants contended that in the rental application Evans was asked about being charged with a misdemeanor and responded in the negative. (See, e.g., Defs.' Mem. (D.E. 30-2), p. 3). In their response memorandum, plaintiffs denied that the rental application Evans completed inquired about misdemeanors, citing to the copy of her rental application which defendants themselves submitted as an exhibit to their supporting memorandum (D.E. 30-4). (Pls.' Mem. (D.E. 34), pp. 3-4). In fact, no such inquiry appears in the application. In their reply memorandum, defendants concede that their arguments concerning Evans' failure to disclosure were in error and that defendants inadvertently quoted from a different version of UDR's rental application than the one filled out by Evans. (Defs.' Reply (D.E. 41), pp. 1-2). Defendants also expressly admit that Evans accurately responded to the criminal history questions in her rental application. (Id., p. 2, 898 N.E.2d 848). Accordingly, the court will disregard those portions of defendants' submissions contending that Evans did not adequately disclose her criminal record and that such nondisclosure serves as an independent basis for their refusal to permit her to reside at Forest Hills. While the court appreciates defendants' acknowledgment of and apology to Evans and the court for their error with regard to the application form, the court does find it troubling that defendants did not use greater care in reviewing the form—which, again, they included with their submissions on their motion—before alleging dishonesty by Evans.

[3] Under North Carolina law, "prayer for judgment continued" is one of several ways in which a court may direct that judgment be handled following a conviction by verdict or guilty plea. See Florence v. Hiatt, 101 N.C.App. 539, 541, 400 S.E.2d 118, 120 (1991) (citing State v. Griffin, 246 N.C. 680, 682-83, 100 S.E.2d 49, 50-51 (1957)). The term refers specifically to deferral of court action on the state's request for entry of judgment, the final order in a case which would include the sentence being imposed on the defendant. See Griffin, 246 N.C. at 682-83, 100 S.E.2d at 51; see also N.C. Gen.Stat. § 15A-101("Prayer for judgment continued upon payment of costs, without more, does not constitute entry of judgment."). A conviction based on a plea of guilty may generally be treated as a conviction even if the prayer for judgment is continued. "``It is settled law in this State that a plea of guilty, freely, understanding, and voluntarily entered, is equivalent to a conviction of the offense charged.'" State v. Sidberry, 337 N.C. 779, 782, 448 S.E.2d 798, 800 (1994) (held that trial court properly treated as convictions for purposes of cross-examination of defendant under Evidence Rule 609 crimes to which he had pled guilty but for which prayer for judgment was continued); accord Friend v. State, 169 N.C.App. 99, 103, 609 S.E.2d 473, 475 (2005) (held that trial court improperly failed to treat as convictions for purposes of a statute barring gun purchases by felons crimes to which defendant had pled guilty but for which prayer for judgment was continued) (citing above-quoted language from Sidberry); see also Britt v. North Carolina Sheriffs' Educ. & Training Stds. Comm'n, 348 N.C. 573, 576-77, 501 S.E.2d 75, 77 (1998) (held that trial court improperly failed to treat as convictions for purposes of a deputy sheriff's certification crimes to which he had pled guilty but for which prayer for judgment was continued); N.C. Gen.Stat. § 15A-1331(b) ("For the purpose of imposing sentence, a person has been convicted when he has been adjudged guilty or has entered a plea of guilty or no contest."). In this motion, plaintiffs acknowledge the simple misdemeanor assault to be a conviction. (E.g., Pls.' Mem., pp. 2 ("Plaintiff Evans has one criminal conviction—a 2002 misdemeanor simple assault for which she received a Prayer for Judgment Continued."), 6 n. 1 ("Plaintiffs have focused on the one conviction....").)

[4] The guilty plea is indicated in the report on Evans' criminal history that is in the record by the code "GL" following the term "Plead:". The court takes judicial notice that the public record of Evans' criminal history also shows that she pled guilty. See Fed. R.Evid. 201.

[5] See Incident/Investigation Report (D.E. 37).

[6] Plaintiffs concede that Evans' criminal record includes arrests and related proceedings besides those concerning the assault—namely, a misdemeanor larceny charge that was dismissed in Superior Court (after a guilty plea in District Court) and a misdemeanor harassing telephone charge that was dismissed in District Court. (See Pls.' Mem., p. 6 n. 1; Report on Evans' Crim. Hist., pp. 1-2, 4). However, these other matters appear to fall within the discretionary waiver provision. Evans' application could therefore be approved under UDR's policy, without modification, with respect to these other matters. It is only the assault which is subject to the nondiscretionary denial provision and which represents an absolute bar to Evans' application under the policy. It is therefore only with respect to the assault that plaintiffs are seeking modification of UDR's policy as an accommodation to Evans' disability. (See Pls.' Mem., p. 6 n. 1). The court's analysis of Evans' criminal history does not, of course, include any arrests and related proceedings against her which may have occurred after the time period addressed in the complaint. Any such arrests and proceedings would not moot this action for reasons comparable to those discussed in footnote 1 above.

[7] The Lynn affidavit is not notarized and therefore the court is not treating it as sworn testimony. Nonetheless, the statements of fact set forth in it, which relate to the chronology of denial of Evans' application, do not appear to be in dispute.

[8] The parties do not dispute that individuals who are recovering substance abusers are entitled to disability protections provided by the FHAA. See, e.g., United States v. S. Mgmt. Corp., 955 F.2d 914, 917-23 (4th Cir.1992).

[9] A plaintiff can prove discrimination under section 3604(f) by showing (1) intentional discrimination, (2) disparate impact, or (3) failure to provide reasonable accommodations. Oxford House, Inc. v. City of Virginia Beach, Va., 825 F.Supp. 1251, 1258 (E.D.Va.1993). As noted, it is the latter category that is at issue in the present case.

[10] A plaintiff bears the burden of proving all three elements by a preponderance of the evidence. Bryant Woods Inn, 124 F.3d at 604.

[11] Defendants do not expressly frame their argument as whether the accommodation is "necessary" to afford Evans an "equal opportunity," but the substance of their argument is addressed to these elements and the court will accordingly analyze their argument in terms of these elements.

[12] The principal exception would, of course, be strict liability offenses.

[13] In fact, were the court to find the accommodation necessary and then be obligated to consider the reasonableness of the proposed accommodation, it would likely conclude that issues of fact preclude a determination of reasonableness on this motion for summary judgment. There appear to be numerous issues of fact relating to the reasonableness element, including but not limited to whether Evans' tenancy would present a danger; whether the supervision provided by SEAISE could minimize any danger; whether other tenants would be affected or concerned by any waiver in the policy; whether it would be feasible for defendants to train its employees in assessing whether or not to waive the criminal history policy in a given case; and whether a waiver would affect the property value of the complex. See, e.g., Buskirk v. Apollo Metals, 307 F.3d 160, 170 (3d Cir. 2002) ("Generally, the question of whether a proposed accommodation is reasonable is a question of fact.") (citing Holbrook v. City of Alpharetta, Ga., 112 F.3d 1522, 1527 (11th Cir.1997)); Jeffrey O. v. City of Boca Raton, 511 F.Supp.2d 1328, 1338 (S.D.Fla.2007) (issues of fact precluded summary judgment on issue of whether accommodation was reasonable); Jama Invs., L.L.C. v. Inc. Cty. of Los Alamos, No. CIV 04-1173, 2006 WL 1228771, at *13 (D.N.M. 16 Feb. 2006) (court found that issues of fact on whether accommodation was reasonable precluded an award of summary judgment to either party).