Washington v. Dayton Area Board of Realtors

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT DAYTON

JAMES E. WASHINGTON, : Case No. 3:21-cv-00253

:

Plaintiff, : District Judge Michael J. Newman

: Magistrate Judge Sharon L. Ovington

vs. :

:

DAYTON AREA BOARD OF

:

REALTORS, et al.,

:

Defendants. :

ORDER

Plaintiff James E. Washington is a resident of Dayton, Ohio. He is a real estate

broker. He asserts in his pro se Complaint that the Dayton Area Board of Realtors (DABR)

began interfering with his real estate business after he “recommended that the DABR

recommend to its Board of Directors [sic] invite all Realtors to review the exhibit at the

Library on redlining.” (Doc. No. 2, PageID 28). Plaintiff states that “HUD was at the root

cause of Redlining and Discrimination in the mid-thirties,” so he made this

recommendation after he “learned that ‘DABR’ had signed a voluntary affirmative

marketing agreement with HUD.” Id. He seeks two forms of relief: (1) an order requiring

a forensic examination of the computers used by certain individuals at the Board of

Realtors, who he believes are responsible for interfering with his real estate business,

particularly via the MLS system, and (2) an estimated $900,000 in damages. Id. at 29.

The Court previously granted Plaintiff’s Motion for Leave to Proceed in forma

pauperis under 28 U.S.C. § 1915. The case is presently is before the Court for an initial

review to determine whether it, or any portion of it, must be dismissed for failing to raise

a plausible claim for relief or because it is factually or legal frivolous. See 28 U.S.C. §

1915(e); see also Hill v. Lappin, 630 F.3d 468, 470 (6th Cir. 2010); Barnett v. Kalamazoo

Cnty. Community Health Bd., No. 18-1319, 2018 WL 4492496, at *1 (6th Cir. 2018). A

claim is plausible when the complaint’s factual allegations “‘raise a right to relief above

the speculative level,’” Handy-Clay v. City of Memphis, Tenn., 695 F.3d 531, 538 (6th Cir.

2012) (citations omitted), and create a “‘reasonable inference that the defendant is liable

for the misconduct alleged.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted).

A complaint is dismissed as frivolous only when it fails to raise “‘a claim with an

arguable legal claim based on rational facts.’” Brand v. Motley, 526 F.3d 921, 923 (6th

Cir. 2008) (quoting, in part, Neitzke v. Williams,490 U.S. 319, 325 (1989)). A rational

factual basis is absent when the complaint’s allegations are “fantastic or delusional.” Id.

No arguable legal claim exists when the complaint rests on “indisputably meritless” legal

theories—for example, when the defendant is immune from suit or when the plaintiff

claims a violation of a legal interest that clearly does not exist. See id.

The present sua sponte review begins by accepting Plaintiff’s allegations as true and

liberally construing his pro se Complaint in his favor. See Hill, 630 F.3d at 471; Davis v.

Prison Health Services, 679 F.3d 433, 437 (6th Cir. 2012); Thaddeus-X v. Blatter, 175 F.3d

378, 385 (6th Cir. 1999); see also Lee v. Wilson County Jail, Lebanon, No. 16-5981, 2017

WL 2819220, at *1 (6th Cir. 2017). Doing so squarely places Plaintiff’s claims under 42

U.S.C. § 1985(3), which requires that he allege:

(1) a conspiracy; (2) for the purpose of depriving, either directly or indirectly,

any person or class of persons of the equal protection of the laws, or of equal

privileges or immunities of the laws; (3) an act in furtherance of the

conspiracy; (4) whereby a person is either injured in his person or property

or deprived of any right or privilege of a citizen of the United States.

Center for Bio—Ethical Reform, Inc. v. City of Springboro, 477 F.3d 807, 832 (6th Cir.

2007) (citing Vakilian v. Shaw, 335 F.3d 509, 518 (6th Cir. 2003)).1 Further, “[t]he

Supreme Court requires that § 1985 claims contain allegations of ‘class-based, invidiously

discriminatory animus.’” Webb v. United States, 789 F.3d 647, 672 (6th Cir. 2015)

(quoting Griffin v. Breckenridge, 403 U.S. 88, 102, 91 S. Ct. 1790, 29 L.Ed.2d 338 (1971)).

A primary issue, however, is that Plaintiff does not directly allege that Defendants

were engaged in a conspiracy. In fact, he does not use the term conspiracy, or any similar

term, at all—which raises concerns about specificity. See Center for Bio-Ethical Reform,

Inc., 477 F.3d at 832 (quoting Gutierrez v. Lynch, 826 F.2d 1534, 1538-39 (6th Cir. 1987)

(stating that “conspiracy claims must be pled with some degree of specificity…”). Instead,

he recounts a series of separate events that occurred after his recommendation.

Plaintiff claims that after he made the recommendation about the exhibit on

redlining, his real estate business was “instantly” impacted. For example, he indicates that

his “MLS property listings were vandalized [and] pictures [were] removed.” (Doc. No. 2,

PageID 28). His “ability to use the MLS system was de-activated.” Id. He asserts that

“Defendants accused [him] of destroying his MLS listings,” but that a forensic exam would

prove otherwise. Id. Plaintiff believes that several individuals, identified by last name

1 Plaintiff primarily relies on the “Ku Klux Klan Act, 1871 Civil Rights Act,” which is now codified in 42 U.S.C. §

1985(3). (Doc. No. 2, PageID 27); see Griffin v. Breckenridge, 403 U.S. 88, 98-99 (1971).

only, are responsible for interference with the MLS system. Id. at 29. He refers to these

individuals (i.e., Ullery, Stokes and Brenner-Lawson) as “defendants,” but does not

identify them as defendants in his Complaint. Id. at 31-33. He also asserts that he has been

inundated by phone calls with “fake questions about fake properties and time wasting

activities,” but it is unclear who is responsible for these phone calls. Id. at 29.

Plaintiff also avers that he was “instantly charged $425.00 in fines,” and also

received an ethics complaint for violations of certain articles in the “whatever.” Id. at 28.

He asserts that the only witness at his ethics hearing “was incapacitated, in a wheel chair

and could not speak.” Id. After his ethics hearing, which was conducted by Ethics

Committee Chairman Brian Sharp, other unnamed realtors “started to complain about [his]

listings, [make] appointments to show [his] property, and did not show up…” Id.

Accepting these allegations as true and liberally construing his pro se Complaint in

his favor, Plaintiff does not set forth sufficient facts that demonstrate how these separate

actions and occurrences—which are attributed to different groups and individuals—were

in furtherance of a conspiracy. Plaintiff does not provide any facts that link the alleged

conspirators and their conduct. Aladimi v. Hamilton County Justice Center, et al., No.

1:09-cv-398, 2012 WL 292587, at *18 (S.D. Ohio, Feb. 1, 2012) (Bowman, M.J.), report

and recommendation adopted, 2012 WL 529585 (S.D. Ohio, Feb. 17, 2012) (Barrett, D.J.)

(citing McDowell v. Jones, 990 F.2d 433, 434 (8th Cir. 1993) (“A plaintiff must make

sufficient factual allegations to link two alleged conspirators and to establish the requisite

‘meeting of the minds’ essential to the existence of the conspiracy.”). He also does not

establish that Defendants shared a common discriminatory animus aside from indicating

the events occurred after he recommended to the DABR that all realtors view the redlining

exhibit at the local library. See Pahssen v. Merrill Cmty. Sch. Dist., 668 F.3d 356, 368 (6th

Cir. 2012) (citing Hinkle v. City of Clarksburg, 81 F.3d 416, 421 (4th Cir. 1996)) (“a

plaintiff alleging a conspiracy to deprive her of her civil rights must establish that the

alleged conspirators shared a common discriminatory objective.”). For these reasons,

Plaintiff fails to raise a plausible conspiracy claim under 42 U.S.C. § 1985(3).

Plaintiff’s claim is also barred by the two-year statute of limitations to the extent

that it originates from events that began in or around 1977. See Quigley v. Abel, No. 2:20-

cv-5146, 2020 WL 6390163, at *4 (S.D. Ohio Nov. 2, 2020) (Deavers, M.J.), report and

recommendation adopted, 2020 WL 7230016 (S.D. Ohio Dec. 8, 2020) (Sargus, D.J.).

Although he primarily focuses on recent actions of Defendants and other individuals,

Plaintiff explains he is entitled to actual damages due to events dating back to “1977 or so”

when he was subjected to a lawsuit that impacted his income and forced him to close his

real estate office. (Doc. No. 2, PageID 29). Negative publicity arising from those events

cost him $300,000, which “in todays [sic] costs could be as much as $900,000.” Id.

Plaintiff argues he entitled to actual damages “estimated to be $900,000 plus.” Id.

Plaintiff has not sought leave to amend his Complaint. However, given that he is

proceeding pro se, Plaintiff shall be granted leave to file an amended complaint within

twenty-one (21) days of the date of this Order to address the deficiencies described above

as to each Defendant. The Court will then conduct an initial review of the amended

complaint pursuant to 28 U.S.C. § 1915(e). Plaintiff is advised that the failure to file an

amended complaint within twenty-one (21) days of the date of this Order may result in

dismissal of this action.

IT IS SO ORDERED.

October 28, 2021 s/Sharon L. Ovington

Sharon L. Ovington

United States Magistrate Judge