# Mitchell v. Sullivan Place Apartments

> District Court, E.D. Missouri · May 27, 2020

URL: https://www.frixlaw.com/law-library/cases/10233128

## Case

- **Court:** District Court, E.D. Missouri
- **Decided:** May 27, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10233128

## How later opinions describe it (automated extraction)

- stating that “[a] pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do”
- concluding that “Title VI generally permits recovery of damages for intentional discrimination”
- stating that the FHA is “a federal law that generally prohibits making unavailable or denying a dwelling because of a person’s race, color, religion, sex, familial status, or national origin”
- concluding that “Title VI generally permits recovery of damages for intentional discrimination”

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
OSCAR MITCHELL, et al., )
Plaintiffs,

Vv. No. 4:19-cv-00430-SNLJ
SULLIVAN PLACE APARTMENTS, et al.,
Defendants.
MEMORANDUM AND ORDER
This matter comes before the Court on review of plaintiff Oscar Mitchell’s amended
complaint pursuant to 28 U.S.C. § 1915. For the reasons discussed below, this action will be
dismissed without prejudice.
Legal Standard on Initial Review
Under 28 U.S.C. § 1915(e)(2), the Court is required to dismiss a complaint filed in forma
pauperis if it is frivolous, malicious, or fails to state a claim upon which relief can be granted. To
state a claim, a plaintiff must demonstrate a plausible claim for relief, which is more than a “mere
possibility of misconduct.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). “A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Jd. at 678. Determining whether
a complaint states a plausible claim for relief is a context-specific task that requires the reviewing
court to draw upon judicial experience and common sense. /d. at 679. The court must “accept as
true the facts alleged, but not legal conclusions or threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements.” Barton v. Taber, 820 F.3d 958, 964 (8" Cir.
2016). See also Brown v. Green Tree Servicing LLC, 820 F.3d 371, 372-73 (8" Cir. 2016) (stating

that court must accept factual allegations in complaint as true, but is not required to “accept as true
any legal conclusion couched as a: factual allegation’).
When reviewing a pro se | pln under § 1915(e)(2), the Court must give it the benefit
of a liberal construction. Haines Kerner, 404 U.S. 519, 520 (1972). A “liberal construction”
means that if the essence of an ae is discernible, the district court should construe the
plaintiffs complaint in a way that ei his or her claim to be considered within the proper legal
framework. Solomon v. Petray, 795 F.3d 777, 787 (8" Cir. 2015). However, even pro se complaints
are required to allege facts which, if true, state a claim for relief as a matter of law. Martin v.
Aubuchon, 623 F.2d 1282, 1286 cs" Cir. 1980). See also Stone v. Harry, 364 F.3d 912, 914-15
Cir. 2004) (stating that federal on are not required to “assume facts that are not alleged, just
because an additional factual allegation would have formed a stronger complaint”). In addition,
affording a pro se complaint the benefit of a liberal construction does not mean that procedural
rules in ordinary civil litigation must be interpreted so as to excuse mistakes by those who proceed
without counsel. See McNeil v. tne States, 508 U.S. 106, 113 (1993).
| Background
Plaintiff is a slteeesenled litigant. On March 11, 2019, he filed a civil action naming
the Sullivan Place Apartments and property manager Michael Hutchison as defendants. (Docket
No. 1). He also filed a motion for leave to proceed in forma pauperis, which was granted. (Docket
No. 2; Docket No. 4).
In the complaint, plaintiff; | purported to be acting on behalf of himself, as well as Emma
Carouthers, who was apparently cena Plaintiff was the only individual to sign any of the legal
documents before the Court. He claimed that his case arose under the Fair Housing Act, found at
42 U.S.C. § 3601, et seq., and the Civil Rights Act of 1964.

Plaintiff's “Statement of Claim” alleged that he and Carouthers were defendants’ tenants.
(Docket No. 1 at 5). He asserted that defendants “knew” they were “member|s] of a protected
class” but “imposed unfavorable or less favorable terms or conditions on returning” their deposit.
Plaintiff further claimed that such terms or conditions were not imposed on “similarly situated
former tenants.” This allegedly began in February 2016 and ended in October 2016. Plaintiff
sought monetary damages in the amount of $500, which was the amount of his security deposit.
(Docket No. 1 at 5-6).
The Court reviewed plaintiff's complaint pursuant to 28 U.S.C. § 1915. (Docket No. 4). In
so doing, the Court noted that plaintiff had failed to state a claim under the Fair Housing Act,
because he had not demonstrated that he was a member of a protected class, or that he was treated
differently than similarly-situated tenants. The Court further explained that plaintiff had not shown
that he was the real party in interest to bring a claim on behalf of Carouthers.
Because plaintiff was a self-represented litigant, the Court gave him an opportunity to file
an amended complaint. To aid his compliance, the Court provided instructions for him to follow.
These instructions included an advisement that plaintiff's “Statement of Claim” needed to present
facts, rather than labels and conclusions. The Court also advised plaintiff that if he was bringing a
claim on behalf of Carouthers, he needed to demonstrate that he was the real party in interest to
bring her claim.
Plaintiff was given thirty days in which to submit an amended complaint. He was told that
failure to comply would result in the dismissal of his case without prejudice and without further.
notice. Plaintiff was also advised that upon receipt of the amended complaint, it would be reviewed
by the Court. He filed an amended complaint on August 16, 2019. (Docket No. 5).

The Amended Complaint
Plaintiff's amended complaint again names the Sullivan Place Apartments and property
manager Michael Hutchison as defendants. Now, however, Emma Carouthers is no longer listed
as a plaintiff. (Docket No. 5 at 2). Plaintiff states that this Court has jurisdiction over this matter
on the basis of a federal question. (Docket No. 5 at 3). In support, he asserts that his cause of action
arises under the Fair Housing Act; Title VI of the Civil Rights Act of 1964; Section 109 of the
Housing Community Development Act; Section 504 of the Rehabilitation Act; Title II of the
Americans with Disabilities Act; the Architectural Barriers Act of 1968; and the Age
Discrimination Act of 1975. Plaintiff's “Statement of Claim” provides, in its entirety:
My disabled sister who is now deceased was on the lease with me,
the bathroom in our apartment was not handicapped accessible and
she couldn’t use the tub[.] When I complained to management[,]
specifically defendant Hutchison[,] after my sister fell in the
bathroom and suffered serious injuries, he then began systematic
harassment[.] This occurred approximately in June of 2015. Shortly
thereafter[,] they began to refuse our rent payments which resulted
in termination of our lease. We were never given written notice of.
the termination and [were] promptly evicted in a court proceeding.
Defendant Hutchison[,] specifically, failed to make adequate
accommodation for my elderly disabled sister so she could have
quiet enjoyment of the premise[s]. We were ‘systematically
discriminated [against] because of our age and disability by
defendant Hutchison. Defendant Hutchison sent a statement that we
had paid rent from January 1, 2015 until December 31, 2015 when
we only move in in June of 2015, thereby creating fraudulent records
for the St. Louis Housing Authority[,] which subsidized our rent.
(Docket No. 5 at 5). Plaintiff further states that his sister was “hospitalized due to her fall,” and
that her “subsequent injuries contributed to her early demise.” (Docket No. 5 at 6). He is seeking
$75,000 in actual and punitive damages. (Docket No. 5 at 5).

Discussion
Plaintiff brings this civil action against defendants Sullivan Place Apartments and Michael
Hutchison, alleging violations under the Fair Housing Act; Title VI of the Civil Rights Act of
1964; Section 109 of the Housing Community Development Act; Section 504 of the Rehabilitation
Act; Title II of the Americans with Disabilities Act; the Architectural Barriers Act of 1968; and
the Age Discrimination Act of 1975. For the reasons discussed below, this action must be
dismissed.
A. Real Party in Interest
Under the Federal Rules of Civil Procedure, Rule 17(a) provides that an “action must be
prosecuted in the name of the real party in interest.” Fed. R. Civ. P. 17(a)(1). “The real party in
interest is a party who, under governing substantive law, possesses the rights to be enforced.”
Consul Gen. of Republic of Indonesia v. Bill’s Rentals, Inc., 330 F.3d 1041, 1045 (8 Cir. 2003).
See also Cascades Dev. of Minnesota, LLC v. Nat 'l Specialty Ins., 675 F.3d 1095, 1098 (8" Cir.
2012). The purpose of Rule 17(a) “is simply to protect the defendant against a subsequent action
by the party actually entitled to recover, and to insure generally that the judgment will have its
proper effect as res judicata.” Curtis Lumber Co., Inc. v. Louisiana Pac. Corp., 618 F.3d 762, 771
(8" Cir. 2010). As such, the party bringing an action must actually possess, under the substantive
law, the right sought to be enforced. United HealthCare Corp. v. American Trade Ins. Co., Ltd.,
88 F.3d 563, 569 (8" Cir. 1996).
Here, the bulk of plaintiff s “Statement of Claim” is with regard to his sister, who he alleges
was disabled, and who fell in the bathroom. The sister is now deceased. However, plaintiff has not
demonstrated that he is the proper party to bring a claim on behalf of her estate, despite being
specifically advised of the necessity for doing so in the Court’s order to amend. Indeed, he does

not even identify his sister, though an attachment to the complaint names Erma Carouthers as a
tenant of Sullivan Place Apartments. As plaintiff has not shown that he is the real party in interest,
despite being given the opportunity, this action must be dismissed.
B. Failure to State a Claim under the Fair Housing Act
Even if plaintiff were the real party in interest, he has still failed to state a claim under the
Fair Housing Act. “The Fair Housing Act (FHA) prohibits property owners and municipalities
from blocking or impeding the provision of housing on the basis of race, color, religion, sex,
familial status, or national origin.” Gallagher v. Magner, 619 F.3d 823, 831 (8 Cir. 2010). See
also Khan v. City of Minneapolis, 922 F.3d 872, 873 (8" Cir. 2019) (stating that the FHA is “a
federal law that generally prohibits making unavailable or denying a dwelling because of a
person’s race, color, religion, sex, familial status, or national origin”). A tenant subjected to
discrimination in violation of the FHA can bring a private cause of action for damages. See
Neudecker v. Boisclair Corp., 351 F.3d 361, 363 (8" Cir, 2003). However, the party asserting a
housing discrimination claim under the FHA has the initial burden of proving a prima facie case
of discrimination by a preponderance of the evidence. See Radecki v. Joura, 114 F.3d 115, 116
Cir. 1997).
Here, plaintiff has not alleged that defendants discriminated against him or his sister “on
the basis of race, color, religion, sex, familial status, or national origin.” Indeed, plaintiff has not
even indicated the category upon which he was discriminated, much less provided any detail as to
how he was blocked or impeded from housing on this basis. His vague assertions of “systematic
harassment” and systematic discrimination are nothing more than legal conclusions, without any
of the necessary factual enhancement to lift his claim beyond the speculative level. See Johnson v.
Precythe, 901 F.3d 973, 977 (8" Cir. 2018) (stating that “[a] pleading must offer more than labels

and conclusions or a formulaic recitation of the elements of a cause of action to state a plausible
claim for relief”). Therefore, plaintiff has failed to state a claim under the FHA.
C. Failure to State a Claim Under Title VI of the 1964 Civil Rights Act
Plaintiff has also failed to state a claim under Title VI of the Civil Rights Act of 1964. Title
VI “prohibits racial discrimination under any program or activity receiving Federal financial
assistance.” FCS Advisors, LLC v. Missouri, 929 F.3d 618, 622 (8" Cir. 2019). See also 42 U.S.C.
§ 2000d. Though Title VI does not mention a private right of action, decisions by the United States
Supreme Court have recognized an implied right of action for individuals to seek injunctive relief

and damages. Freeman v. Fahey, 374 F.3d 663, 666 (8" Cir. 2004). However, Title VI only
prohibits intentional discrimination. Alexander v. Sandoval, 532 U.S. 275, 280 (2001). See also
Fuller v. Rayburn, 161 F.3d 516, 518 (8 Cir. 1998) (concluding that “Title VI generally permits
recovery of damages for intentional discrimination”).
Here, plaintiff has not adequately alleged that defendants discriminated against him. His
allegations consist of the statements that plaintiff and his sister were subjected to “systematic
harassment” and were “systematically discriminated” against. These are legal conclusions, entirely
unsupported by any factual allegations. As such, they are not entitled to the presumption of truth.
See Wiles v. Capitol Indem. Corp., 280 F.3d 868, 870 (8" Cir. 2002) (“While the court must accept
allegations of fact as true...the court is free to ignore legal conclusions, unsupported conclusions,
unwarranted inferences and sweeping legal conclusions cast in the form of factual allegations”).
Moreover, for Title VI to apply, there must be a showing that defendants received federal financial
assistance. See FCS Advisors, LLC, 929 F.3d at 622 (stating that Title VI “prohibits racial
discrimination under any program or activity receiving Federal financial assistance”). Plaintiff has

made no such showing. Therefore, he has not stated a claim under Title Vi of the 1964 Civil Rights
Act.
D. Failure to State a Claim Under the Housing Community Development Act
Next, plaintiff asserts that defendants have violated Section 109 of the Housing Community
Development Act (HCDA). This is an apparent reference to 42 U.S.C. § 5309, which provides that
“[n]Jo person in the United States shall on the ground of race, color, national origin, religion, or sex
be excluded from participation in, be denied the benefits of, or be subjected to discrimination under
any program or activity funded in whole or in part with funds made available under this chapter.”
The purpose of the HCDA is to support “the development of viable urban communities” by
providing federal assistance. 42 U.S.C. § 5301(c). However, the anti-discrimination provisions in
42 U.S.C. § 5309 do not create a private right of action. Freeman, 374 F.3d at 665-66. Therefore,
plaintiff has not stated a claim under the HCDA.
E. Failure to State a Claim Under the Rehabilitation Act
Plaintiff further claims that this action arises under the Rehabilitation Act. Congress
enacted the Rehabilitation Act of 1973 (RA) as a comprehensive federal program, similar to the
Americans with Disabilities Act, meant to ensure that individuals with disabilities would not be
denied benefits from or be subjected to discrimination under any program or activity that receives
federal funding. Argenyi v. Creighton Univ., 703 F.3d 441, 448 (8" Cir. 2013). The RA provides,
in relevant part, “that no otherwise qualified individual with a disability in the United States shall,
solely by reason of her or his disability, be excluded from the participation in, be denied the
benefits of, or be subjected to discrimination under any program or activity receiving Federal
financial assistance.” Wojewski v. Rapid City Reg’! Hosp., Inc., 450 F.3d 338, 344 (8" Cir. 2006).

To establish a prima facie case under the RA, a plaintiff is required to show three things:
(1) that he or she is a qualified individual with a disability; (2) that he or she was denied the benefits
of a program or activity of a public entity that receives federal funds; and (3) that he or she was
discriminated against based on his or her disability. Estate of Barnwell by and through Barnwell
v. Watson, 880 F.3d 998, 1004 (8" Cir. 2018). “A qualified individual with a disability is broadly
defined as any person who meets the essential eligibility requirements for the receipt of services
or the participation in programs or activities provided by a public entity.” Gorman v. Bartch, 152
F.3d 907, 912 (8" Cir. 1998). While disability is broadly defined, the RA “imposes a requirement
that a person’s disability serve as the sole impetus for a defendant’s adverse action against the
plaintiff.” Amir v. St. Louis Univ., 184 F.3d 1017, 1029 n. 5 (8" Cir. 1999) (emphasis in original).
Here, plaintiff not properly alleged that either he or his sister were a qualified individual
with a disability. That is, while he states his sister was “disabled,” he does not provide the nature
of her disability; meanwhile, he claims no disability himself. Furthermore, he has not shown that
he was subject to discrimination. While his “Statement of Claim” broadly alleges discrimination,
as well as a failure to accommodate, there are no supporting facts to demonstrate what defendants
actually did or did not do. Instead, plaintiff relies on labels and conclusions, which is inadequate
to state a claim. See Neubauer v. FedEx Corp., 849 F.3d 400, 404 (8 Cir. 2017) (stating that “[a]
pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of
action will not do”). Certainly, plaintiff has not established that any alleged disability was the “sole
impetus” for defendants’ actions, whatever those actions might be. Finally, plaintiff has not alleged
facts showing that he or his sister were “denied the benefits of a program or activity of a public
entity that receives federal funds.” Therefore, for these reasons, plaintiff has not stated a claim
under the RA.

F. Failure to State a Claim Under Title II of the Americans with Disabilities Act
Plaintiff also contends that this action arises under Title II of the Americans with

. Disabilities Act (ADA). Pursuant to Title II of the ADA, “no qualified individual with a disability
shall, by reason of such disability, be excluded from participation in or be denied the benefits of
the services, programs, or activities of a public entity, or be subjected to discrimination by any
such entity.” Power v. Univ. of North Dakota Sch. of Law, 954 F.3d 1047, 1052 (8" Cir. 2020)
(quoting 42 U.S.C. § 12132). See also LZ.M. v. Rosemount-Apple Valley-Eagan Pub. Sch., 863
F.3d 966, 972 (8" Cir. 2017) (stating that Title II of the Americans With Disabilities Act prohibits
public entities from discrimination based on disability in services, programs, or activities).
Pursuant to statute, “public entity” is defined as “(A) any State or local government; (B) any
department, agency, special purpose district, or other instrumentality of a State or States or local
government; and (C) the National Railroad Passenger Corporation.” 42 U.S.C. § 12131. To state
a prima facie ADA claim, a plaintiff is required to demonstrate that “1) he is a person with a
disability as defined by statute; 2) he is otherwise qualified for the benefit in question; and 3) he
was excluded from the benefit due to discrimination based upon disability.” Randolph v. Rogers,
170 F.3d 850, 858 (8" Cir. 1999).
Here, as discussed above, plaintiff's vague and conclusory “Statement of Claim” does not
establish that he or his sister had a disability as defined by statute. Rather, plaintiff simply states
that his sister was “disabled,” and leaves it at that. He has also presented no facts showing that he
was excluded from a benefit due to disability discrimination. Again, plaintiff concludes that
defendants discriminated against him, without providing any facts to demonstrate what that means.
Finally, plaintiff has not demonstrated that defendants qualify as a “public entity.” Therefore,
plaintiff has failed to state a claim under Title IT of the ADA.

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G. Failure to State a Claim Under the Architectural Barriers Act
Plaintiff further states that this cause of action arises in part under the Architectural Barriers
Act. “The Architectural Barriers Act (ABA), 29 U.S.C. § 701 et seg., was enacted to insure
whenever possible that physically handicapped persons will have ready access to, and use of,
public buildings.” Wood v. Smith, 2018 WL 1613799, at *2 (E.D. Ark. 2018). However, the ABA
does not provide for a private cause of action. Jackson v. Federal Bureau of Prisons, 2007 WL
843839, at *20 (D. Minn. 2007). Therefore, plaintiff has failed to state a claim under the ABA.
H. Failure to State a Claim Under the Age Discrimination Act of 1975
Finally, plaintiff claims that this action arises under the Age Discrimination Act of 1975.
The Age Discrimination Act of 1975 provides that “no person in the United States shall, on the
basis of age, be excluded from participation in, be denied the benefits of, or be subjected to
discrimination under, any program or activity receiving Federal financial assistance.” 42 U.S.C. §
6102. As a prerequisite to suit, however, the plaintiff must provide notice at least thirty days “prior
to the commencement of that action to the Secretary of Health and Human Services, the Attorney
General of the United States, and the person against whom the action is directed.” 42 U.S.C. §
6104(e)(1). The notice must “state the nature of the alleged violation, the relief to be requested,
the court in which the action will be brought, and whether or not attorney’s fees are being
demanded.” 42 U.S.C. § 6104(e)(2). An action under the Age Discrimination Act cannot be
brought unless administrative remedies have been exhausted. Id.
Here, plaintiff broadly alleges that he and his sister were “systematically discriminated”
against on the basis of age. However, plaintiff provides no factual support for this conclusion. That
is, he does not explain the manner of discrimination, much less show that this discrimination was
the result of his age. Indeed, plaintiff has not even provided his age, leaving the Court to speculate

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as to this allegation. This is not sufficient to state a claim. See Hamilton v. Palm, 621 F.3d 816,
817-18 (8 Cir. 2010) (explaining that to state a cause of action, “[a] pleading that merely pleads
labels and conclusions, or a formulaic recitation of the elements of a cause of action, or naked
assertions devoid of factual enhancement will not suffice”). Furthermore, plaintiff provides no
indication that he has exhausted his administrative remedies, which is a prerequisite to bringing an
Age Discrimination Act claim. Therefore, plaintiff has failed to state a claim under the Age
Discrimination Act.
J. Preservice Dismissal
Pursuant to 28 U.S.C. § 1915, the Court is required to dismiss a complaint filed in forma
pauperis any time it determines that the action is frivolous, malicious, or fails to state a claim. 28
U.S.C. § 1915(e)(2). As explained above, plaintiff appears to be asserting a claim on behalf of his
deceased sister, without establishing that he is the real party in interest to bring this action.
Furthermore, plaintiff's “Statement of Claim” does not allege sufficient facts to support a claim
under the Fair Housing Act, Title VI of the Civil Rights Act of 1964, the Housing Community
Development Act, the Rehabilitation Act, Title II of the Americans with Disabilities Act, the
Architectural Barriers Act of 1968, or the Age Discrimination Act of 1975. Therefore, this action
must be dismissed without prejudice.
Accordingly,
IT IS HEREBY ORDERED that this action is DISMISSED without prejudice for failure
to state a claim. See 28 U.S.C. § 1915(e)(2)(B). A separate order of dismissal will be entered
herewith.

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IT IS FURTHER ORDERED that an appeal from this dismissal would not be taken in
good faith.
Dated this 4?*4 day of Hey , 2020.

STEPH . LIMBAUGH, JR.
UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10233128. Public record. Not legal advice.