Frishberg v. University of South Florida Board of Trustees

UMNIITDEDDL ES TDAITSTERS IDCITS TORFI FCLTO CROIUDRA T

TAMPA DIVISION

DANIEL A. FRISHBERG,

Plaintiff,

v. Case No. 8:24-cv-22-TPB-NHA

UNIVERSITY OF SOUTH FLORIDA

BOARD OF TRUSTEES, et al.,

Defendants.

________________________________________/

ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS

This matter is before the Court on Defendants University of South Florida

Board of Trustees’ and HRSE-Capstone Tampa, LLC’s motion to dismiss, filed on

January 15, 2024. (Doc. 16). The Court elected to treat Defendants’ response to

Plaintiff Daniel A. Frishberg’s motion for a temporary restraining order as a motion to

dismiss and directed Plaintiff to respond to the motion. (Docs. 18; 20). Plaintiff filed

his response in opposition on February 6, 2024. (Docs. 24; 25). After reviewing the

motion, response, court file, and the record, the Court finds as follows:

Background1

Plaintiff Daniel A Frishberg, a student at the University of South Florida

(“USF”), owns a cat which he alleges he uses as an emotional support animal. USF

1 The Court accepts as true the facts alleged in Plaintiff’s amended complaint for purposes of

ruling on the pending motion to dismiss. See Erickson v. Pardus, 551 U.S. 89, 94 (2007)

(“[W]hen ruling on a defendant’s motion to dismiss, a judge must accept as true all of the

factual allegations contained in the complaint.”). The Court is not required to accept as true

any legal conclusions couched as factual allegations. See Papasan v. Allain, 478 U.S. 265, 286

initially recognized the cat as an emotional support animal and allowed Plaintiff to

have the cat in his dorm building. USF’s policies, however, precluded Plaintiff from

taking the cat out of his room. While Plaintiff’s filings do not set forth a clear timeline

of events, it appears that after Plaintiff allowed the cat outside of his room and into

common areas of the dorm, USF imposed a requirement that Plaintiff pay a fee and

take educational courses on civility as a sanction for his violation of the rules. When

Plaintiff failed to comply and failed to comply with a directive to remove the animal,

Defendants terminated Plaintiff’s lease for the room, changed the lock system so that

Plaintiff no longer had access to the room, and removed his personal belongings.

Plaintiff alleges that there is no comparable, adequate housing available for him.

Plaintiff contends that Defendants’ refusal to accommodate his request to have

his emotional support animal outside of his room and other actions – including their

imposition of sanctions, termination of his rental agreement, and locking him out of

his room – constitute discrimination and retaliation in violation of the federal Fair

Housing Act (“FHA”), as well as breaches of Defendants’ duties under other statutes

and common law principles.

On November 28, 2023, Plaintiff filed suit in small claims court in Hillsborough

County making essentially the same allegations presented in this case. On December

19, 2023, Plaintiff filed an amended complaint in that case and a motion seeking

essentially the same injunctive relief sought in the instant motion. The defendants in

that case moved to strike the complaint and motion, arguing that the amended

complaint was improperly filed without leave of court and that Plaintiff’s claims could

not properly be brought in small claims court.

That state court suit remains pending, but on January 3, 2024, Plaintiff brought

this suit.2 In his complaint, he alleges several claims for relief under the FHA, the

Florida Fair Housing Act (“FFHA”), the Americans with Disabilities Act (“ADA”), and

breach of contract related to the housing agreement.

Legal Standard

Federal Rule of Civil Procedure 8(a) requires that a complaint contain “a short

and plain statement of the claim showing the [plaintiff] is entitled to relief.” Fed. R.

Civ. P. 8(a). While Rule 8(a) does not demand “detailed factual allegations,” it does

require “more than labels and conclusions, and a formulaic recitation of the elements

of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555

(2007). In order to survive a motion to dismiss, factual allegations must be sufficient

“to state a claim to relief that is plausible on its face.” Id. at 570.

When deciding a Rule 12(b)(6) motion, review is generally limited to the four

corners of the complaint. Rickman v. Precisionaire, Inc., 902 F. Supp. 232, 233 (M.D.

Fla. 1995). Furthermore, when reviewing a complaint for facial sufficiency, a court

“must accept [a] [p]laintiff’s well pleaded facts as true, and construe the [c]omplaint in

the light most favorable to the [p]laintiff.” Id. (citing Scheuer v. Rhodes, 416 U.S. 232,

236 (1974)). “[A] motion to dismiss should concern only the complaint’s legal

sufficiency, and is not a procedure for resolving factual questions or addressing the

merits of the case.” Am. Int’l Specialty Lines Ins. Co. v. Mosaic Fertilizer, LLC, 8:09-

cv-1264-T-26TGW, 2009 WL 10671157, at *2 (M.D. Fla. Oct. 9, 2009) (Lazzara, J.).

As Plaintiff in this case proceeds pro se, the Court more liberally construes the

pleadings. Alba v. Montford, 517 F.3d 1249, 1252 (11th Cir. 2018). However, a pro se

plaintiff must still conform to procedural rules, and the Court does not have “license to

act as de facto counsel” on behalf of a pro se plaintiff. United States v. Padgett, 917

F.3d 1312, 1317 (11th Cir. 2019).

Analysis

Counts 1, 2, 4, 6, 7, 8, 9, 10, and 13

In Counts 1, 2, 4, and 6, Plaintiff asserts various violations of the FHA by

Defendants. In Counts 7, 8, 9, and 10, he asserts various violations of the FFHA. In

Count 13, Plaintiff asserts a “retaliation” claim under either the FHA, the FFHA, or

both. However, it appears that Eleventh Amendment immunity bars each of these

claims.

The Eleventh Amendment provides a state with immunity from suits by private

individuals in federal court unless the state has consented to be sued, the state has

waived its immunity, or Congress has abrogated the state’s immunity. Doe v. Florida

Gulf Coast Univ. Bd. of Trustees, No. 2:23-cv-245-SPEC-KCD, 2023 WL 5834865, at *2

(M.D. Fla. Sept. 8, 2023). The USF Board, as the governing body of a state university,

is an “arm” of Florida and may be entitled to Eleventh Amendment immunity. See

University of South Fla. Bd. of Trustees v. CoMentis, Inc., 861 F.3d 1234, 1237 (11th

Cir. 2017) (citing Williams v. District Bd. of Trustees of Edison Cmty. Coll., Fla., 421

F.3d 1190, 1195 (11th Cir. 2005)); Souto v. Fla. Int’l Univ. Found., Inc., 446 F. Supp.

3d 983, 990 (S.D. Fla. 2020) (collecting cases). Defendant HRSE may be entitled to

Eleventh Amendment immunity because its only role with respect to this matter is

that it owns the dorm building. See Shands Teaching Hosp. & Clinics, Inc. v. Beech

St. Corp., 208 F.3d 1308, 1311 (11th Cir. 2000) (private corporation that is neither

controlled nor funded by state may be protected by immunity when clearly acting as

agent of state).

Florida has not consented to suit brought in federal court under the FHA or

FFHA. Neither the FHA nor the FFHA contain an explicit waiver of sovereign

immunity. See 42 § U.S.C. 3613, et seq.; § 760.20, et seq., F.S.; Rattner v. 1809

Brickell, LP, No. 1:21-cv-23426-KMM, 2022 WL 19331241, at *7 (S.D. Fla. Apr. 18,

2022) (“Nor does the Fair Housing Act, 42 U.S.C. §§ 3601-3631, contain a waiver of

sovereign immunity.”). Moreover, as to the FHA, “the language of the Fair Housing

Act does not make ‘unmistakably clear’ that Congress intended to abrogate. It contains

no provision evidencing such intent.” McCardell v. United States HUD, 794 F.3d 510,

522 (5th Cir. 2015) (“We hold that Congress did not make clear an intent to abrogate

States’ Eleventh Amendment sovereign immunity from suits brought under the Fair

Housing Act. . . .”).

Plaintiff argues that Defendants’ receipt of federal funds constitutes a waiver of

sovereign immunity under the Rehabilitation Act. But Plaintiff’s housing

discrimination or retaliation claims in these counts are not brought under the

Rehabilitation Act. And just because the state may waive immunity for one type of

claim (such as the Rehabilitation Act) does not mean that it waives immunity for all

possible claims (such as those under the FHA or FFHA).

To try to save his suit, Plaintiff argues that Ex parte Young establishes an

exception to a state’s Eleventh Amendment immunity. However, Plaintiff asserts no §

1983 claims against state officers related to prospective equitable relief and continuing

violations of federal law. See McClendon v. Georgia Dept’ of Cmty. Health, 261 F.3d

1252, 1256 (11th Cir. 2001). Even if he did, Ex parte Young “does not permit suit

against state agencies or the state itself, even when the relief is prospective.” Eubank

v. Leslie, 210 F. App’x 837, 844 (11th Cir. 2006).

Therefore, Defendants enjoy Eleventh Amendment immunity as to all of

Plaintiff’s housing discrimination and retaliation claims. Defendants’ motion is

granted, and Counts 1, 2, 4, 6, 7, 8, 9, 10, and 13 are dismissed for lack of jurisdiction.

Count 3 – ADA Sec. 36.302 Violation

In Count 3, Plaintiff appears to assert a claim under Americans with

Disabilities Act. Specifically, he cites to 28 C.F.R. § 36.402 and claims that

Defendants failed to make “extremely reasonable accommodations” despite numerous

requests that would have allowed Plaintiff to have his emotional support animal in the

common area. To the extent that Plaintiff’s complaint can be interpreted to include a

claim under Title II of the ADA, it fails to state a claim as a matter of law.

“Title II of the Americans with Disabilities Act prohibits public entities (which

includes instrumentalities of state and local governments . . .) from discriminating

against qualified individuals with disabilities.” Sykes v. Cook Cty. Circuit Court Prob.

Div., 837 F.3d 736, 740 (7th Cir. 2016). The regulations interpreting Title II make a

distinction between service animals (for example, “seeing eye” dogs for blind people)

and emotional support animals. The regulations specifically provide protections for

the use of service animals, but emotional support animals are excluded from coverage.

Maubach v. City of Fairfax, No. 1:17-cv-921, 2018 WL 2018552, at *6 n.6 (E.D. Va.

Apr. 30, 2018); see also 28 C.F.R. §§ 36.104; 36.302. Consequently, there is no claim

under Title II of the ADA related to the denial of an emotional support animal. See

id.; Sykes, 837 F.3d at 740 (“’Emotional support animals’ are not considered service

animals which fall under Title II’s mandate.”) (quotation omitted); Toma v. 38th Dist.

Court, No. 18-cv-11066, 2019 WL 1897157, at *2 (E.D. Mich. Apr. 29, 2019) (dismissing

plaintiff’s claim that the defendant failed to reasonably accommodate his disability by

prohibiting his emotional support dog from entering courthouse); Baird v. 1600

Church Rd. Condo Ass’n, No. 17-4792, 2017 WL 5570333, at *4 (E.D. Pa. Nov. 17,

2017) (“[T]he ADA does not provide protection for emotional therapy dogs as

accommodations for disabilities.”).

It is undisputed that Plaintiff’s cat is not a service animal. Consequently, any

ADA claim fails as a matter of law. Defendants’ motion to dismiss is granted as to this

ground. Because amendment would be futile, Count 3 is dismissed with prejudice.

Count 5

The complaint contains a scrivener’s error in that it does not include a Count 5,

skipping from Count 4 to Count 6. The Court notes this mistake for the purpose of

clarity and completeness.

Count 11

In Count 11, Plaintiff asserts an “intimidation” claim. This is not a recognized

cause of action that can be the basis of a lawsuit. To the extent that Plaintiff’s

allegations pertaining to “intimidation” may support some sort of tortious conduct

claim, because Florida has not waived immunity for this type of tort claim, the

Eleventh Amendment applies. See § 768.28(1), F.S. (waiving immunity for actions to

recover damages in tort for “injury or loss of property, personal injury, or death caused

by the negligent or wrongful act or omission of any employee . . . while acting within

the scope of the employee’s office or employment . . .”); Terrell v. United States, 783

F.2d 1562, 1565 (11th Cir. 1986); Wells, 2021 WL 883333, at *4 (citing Schopler v.

Bliss, 903 F.2d 1373, 1379 (11th Cir. 1990)). Consequently, Count 11 is dismissed as

an independent cause of action and for lack of subject matter jurisdiction to the extent

it alleges any tort claim.

Count 12

In Count 12, Plaintiff seeks “to enforce the law” and requests relief under 42

U.S.C. §§ 3613(b)(1), (b)(2), and (c)(1). Enforcement is not an independent cause of

action, and this statutory section merely explains how and when to commence civil

actions for discriminatory housing practices, along with the type of relief that may

sought. Count 12 is therefore dismissed to the extent it asserts an independent cause

of action.

Counts 14, 15, 16, and 17

In Counts 14, 15, 16, and 17, Plaintiff asserts breach of contract and related

claims.3 However, Eleventh Amendment immunity bars Plaintiff’s breach of contract

claims in federal courts. See Maynard v. Bd. of Regents of Div. of Universities of Fla.

Dep’t of Educ. ex rel. Univ. of S. Fla., 342 F.3d 1281, 1288 (11th Cir. 2003) (holding

3 The Court categorizes Count 14 (fraudulent inducement), Count 15 (breach of implied terms

of contract including covenant of good faith), and Count 16 (unconscionability) as contractual

claims, although they do not fit perfectly into that category, because Plaintiff essentially asks

the Court to find the housing agreement unenforceable against him. But even if these are not

strictly “breach of contract” claims, the Court notes that the state of Florida continues “to

enjoy sovereign immunity from quasi-contractual claims such as unjust enrichment” in its own

courts. Id. (quoting Veolia Water N. Am. - S, LLC v. City of Everglades City, No. 2:18-cv-785-

breach of contract claim in federal court was barred on Eleventh Amendment

immunity grounds); Doe, 2023 WL 5834865, at *2. Consequently, Counts 14, 15, 16,

and 17 are dismissed for lack of subject matter jurisdiction.

Accordingly, it is

ORDERED, ADJUDGED, and DECREED:

1. Defendants’ motion to dismiss (Doc. 16) is hereby GRANTED.

2. Counts 1, 2, 4, 6, 7, 8, 9, 10, 11 Gn part), 138, 14, 15, 16, and 17 are

DISMISSED WITHOUT PREJUDICE, without leave to amend, for lack of

jurisdiction on the basis of Eleventh Amendment immunity. If Plaintiff

wishes to pursue these claims, he may choose to do so in state court to the

extent possible, but they may not be re-filed in this Court.

3. Count 3is DISMISSED WITH PREJUDICE for failure to state a claim.

4. Count 5, 11 (in part), and 12 are DISMISSED as independent causes of

action, without leave to amend.

5. The Clerk is directed to terminate any pending motions and deadlines, and

thereafter close this case.

DONE and ORDERED in Chambers, in Tampa, Florida, this 11th day of April,

2024.

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‘TOMBARBER i as—‘“‘C:;sts~™S

UNITED STATES DISTRICT JUDGE

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