Parada v. Sandhill Shores Property Owners Association, Inc.

Southern District of Texas

ENTERED

May 26, 2022

Sn the Anited States District Court vatan ocnsner, □□□□

for the Southern District of Cexas

GALVESTON DIVISION

No. 3:21-cv-195

CECILIA PARADA, PLAINTIFF,

Vv.

SANDHILL SHORES PROPERTY OWNERS ASSOCIATION, INC., DEFENDANT.

MEMORANDUM OPINION AND ORDER

JEFFREY VINCENT BROWN, UNITED STATES DISTRICT JUDGE:

Before the court is the defendant’s motion to dismiss under Rules

12(b)(1) and 12(b)(6). Dkt. 14. The court denies the motion.

I. BACKGROUND!

For a substantial portion of each year, Cecilia Parada, the plaintiff,

resides at a residential beachfront property owned by Paradise 89, LLC,? in

1 When hearing a motion to dismiss under Rule 12(b)(6), “all factual

allegations in the complaint must be taken as true and construed favorably to the

plaintiff.” Fernandez-Montes v. Allied Pilots Ass’n, 987 F.2d 278, 284 (5th Cir.

1993). The “facts” in this section are taken from the plaintiffs pleadings.

2 Parada and her husband have been principals of the LLC for over 15 years.

Dkt. 14 at 15.

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the subdivision served by Sandhill Shores Property Owners Association, Inc.

Dkt. 1 ¶ 2. Parada suffers from late-onset Alzheimer’s disease which has left

her severely cognitively impaired. Id. ¶ 3. She is “almost completely

incapable of interacting with strangers, unless she is in the company of

friends, family, or others familiar to her.” Id. Unaccompanied, any encounter

with unfamiliar people upsets Parada to such a degree that she suffers

extreme and intolerable panic in a matter of moments. Id.

Under the Texas Open Beaches Act, Sandhill Shores has an obligation

to maintain two beach-access paths so that the general public has full access

to the area beaches. Dkt. 1 ¶ 5. In 2006, when Paradise 89, LLC, purchased

the home where Parada lives, the two paths were located a “considerable

distance” from the residence. Id. In 2009, after Hurricane Ike damaged the

entire Sandhill Shores subdivision, including the beach-access paths, the

owners of the lots in the subdivision voted 18-3 to keep those paths in the

same locations. Id. ¶ 6.

Recently Sandhill Shores expressed its intention to construct a

pedestrian beach-access path behind and to the side of Parada’s home. Id.

¶ 6. Parada alleges this would “make it impossible for [her] to continue to

reside at the house,” because she “would be constantly confronted with the

presence of strangers immediately outside of her residence which her

disability has left her entirely unequipped to handle.” Id. ¶ 7. Parada argues

the “trauma would leave her and her family no choice” but to leave the

residence. Id.

In light of the potential injury, Parada requested an accommodation

from Sandhill Shores—that the association not build the access path near her

home—but received no response. Dkt. 1 ¶¶ 10–11. Without the

accommodation, Parada alleges she “will face irreparable harm, as she will

have no opportunity, and certainly no equal opportunity, to use and enjoy

the [home],” which has “immense therapeutic value” as it provides a “calm

and healthful environment” for her. Id. ¶ 12.

Sandhill Shores has indicated it intends to move forward “promptly”

with the construction of the path. Id. ¶ 29. In response, Parada sued the

association alleging violations of the Fair Housing Act, id. ¶¶ 31–39, and the

Americans with Disabilities Act, id. ¶¶ 40–46. Sandhill Shores has moved to

dismiss. Dkt. 14.3

3 Parada has also requested injunctive relief, but the parties have agreed to

continue that motion pending the result of this motion. Dkt. 17.

II. LEGAL STANDARD

A. Rule 12(b)(1)

A case should be dismissed under Rule 12(b)(1) if the court “lacks the

statutory or constitutional power to adjudicate the case.” Home Builders

Ass’n of Miss., Inc. v. City of Madison, Miss., 143 F.3d 1006, 1010 (5th Cir.

1998). The party asserting jurisdiction bears the burden of proof. Howery v.

Allstate Ins. Co., 243 F.3d 912, 916 (5th Cir. 2001). Federal courts have

jurisdiction over a claim between parties only if the plaintiff presents an

actual case or controversy. U.S. CONST. art. III, § 2, cl. 1; Okpalobi v. Foster,

244 F.3d 405, 425 (5th Cir. 2001). “The many doctrines that have fleshed out

that ‘actual controversy’ requirement—standing, mootness, ripeness,

political question, and the like—are ‘founded in concern about the proper—

and properly limited—role of the courts in a democratic society.’” Roark &

Hardee LP v. City of Austin, 522 F.3d 533, 541–42 (5th Cir. 2008) (quoting

Allen v. Wright, 468 U.S. 737, 750 (1984)).

To test whether the party asserting jurisdiction has met its burden, a

court may rely on: “(1) the complaint alone; (2) the complaint supplemented

by undisputed facts evidenced in the record; or (3) the complaint

supplemented by undisputed facts plus the court’s resolution of disputed

facts.” Barrera-Montenegro v. United States, 74 F.3d 657, 659 (5th Cir.

1996). When standing is challenged in a motion to dismiss, the court “must

accept as true all material allegations of the complaint and . . . construe the

complaint in favor of the complaining party.” Ass’n of Am. Physicians &

Surgeons v. Tex. Med. Bd., 627 F.3d 547, 550 (5th Cir. 2010) (quotations

omitted).

B. Rule 12(b)(6)

To survive a motion to dismiss for failure to state a claim, a plaintiff

must plead facts sufficient to “state a claim to relief that is plausible on its

face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The claim is facially

plausible when the well-pleaded facts allow the court to reasonably infer that

the defendant is liable for the alleged conduct. Id. “The court does not ‘strain

to find inferences favorable to the plaintiffs’ or ‘accept conclusory allegations,

unwarranted deductions, or legal conclusions.’” Vanskiver v. City of

Seabrook, Tex., No. CV H-17-3365, 2018 WL 560231, at *2 (S.D. Tex. Jan.

24, 2018) (quoting Southland Sec. Corp. v. INSpire Ins. Sols., Inc., 365 F.3d

353, 361 (5th Cir. 2004)). Naked assertions and formulaic recitals of the

elements of the cause of action will not suffice. Iqbal, 556 U.S. at 678. Even

if the facts are well-pleaded, the court must still determine plausibility. Id. at

679.

III. ANALYSIS

A. Standing

“Federal courts are not courts of general jurisdiction; they have only

the power that is authorized by Article III of the Constitution and the statutes

enacted by Congress pursuant thereto.” Bender v. Williamsport Area Sch.

Dist., 475 U.S. 534, 541 (1986). Article III of the Constitution confines the

judicial power of the federal courts to deciding cases or controversies. See

U.S. CONST. art. III, §2, cl. 1. The standing doctrine is derived directly from

this constitutional provision. See Raines v. Byrd, 521 U.S. 811, 818 (1997)

(“No principle is more fundamental to the judiciary’s proper role in our

system of government than the constitutional limitation of federal-court

jurisdiction to actual cases or controversies.”) (quotations marks and citation

omitted).

“Standing” is a jurisdictional requirement. In fact, Article III standing

represents “perhaps the most important” of all jurisdictional requirements.

FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 231 (1990) (internal quotation

marks and citation omitted). This doctrine “requires federal courts to satisfy

themselves that the plaintiff has alleged such a personal stake in the outcome

of the controversy as to warrant [her] invocation of federal-court

jurisdiction.” Summers v. Earth Island Inst., 555 U.S. 488, 493 (2009)

(internal quotation marks, emphasis, and citation omitted). See also Warth

v. Seldin, 422 U.S. 490, 498 (1975) (“[T]he question of standing is whether

the litigant is entitled to have the court decide the merits of the dispute or of

particular issues.”).

To meet the constitutional minimum for standing, a plaintiff has the

burden to establish the following:

First, the plaintiff must have suffered an injury in fact—an

invasion of a legally protected interest which is (a) concrete and

particularized; and (b) actual or imminent, not conjectural or

hypothetical. Second, there must be a causal connection between

the injury and the conduct complained of—the injury has to be

fairly traceable to the challenged action of the defendant, and not

the result of the independent action of some third party not

before the court. Third, it must be likely, as opposed to merely

speculative, that the injury will be redressed by a favorable

decision.

Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992) (cleaned up).

This well-known three-prong test applies to all types of cases, including

claims brought under the FHA and ADA. See Galveston Open Gov’t Project

v. U.S. Dep’t of Hous. & Urban Dev., 17 F. Supp. 3d 599, 602 (S.D. Tex. 2014)

(Costa, J.). To give full effect to the broad remedial purposes of the FHA and

the ADA, and to encourage its enforcement by private litigants, Congress

intended “to define standing as broadly as is permitted.” Trafficante v.

Metro. Life Ins. Co., 409 U.S. 205, 209 (1972); see also Lincoln v. Case, 340

F.3d 283, 289 (5th Cir. 2003) (The “sole requirement for standing under the

FHA is the Article III minima.”).

“To establish injury in fact, a plaintiff must show . . . ‘an invasion of a

legally protected interest’ that is ‘concrete and particularized’ and ‘actual or

imminent, not conjectural or hypothetical.’” Spokeo, Inc. v. Robins, 578 U.S.

330, 340 (2016) (quoting Lujan, 504 U.S. at 560). “An allegation of future

injury may suffice if the threatened injury is certainly impending, or there is

a substantial risk that the harm will occur.” Susan B. Anthony List v.

Driehaus, 573 U.S. 149, 158 (2014) (internal quotation marks and citation

omitted).

“Causation requires a ‘traceable connection’ between the plaintiff's

injury and the defendant's conduct.” Aransas Project v. Shaw, 775 F.3d 641,

648 (5th Cir. 2014). “Redressability requires ‘a likelihood that the requested

relief will redress the alleged injury.’” Id. “Relief that does not remedy the

injury suffered cannot bootstrap a plaintiff into federal court; that is the very

essence of the redressability requirement.” Steel Co. v. Citizens for a Better

Env’t, 523 U.S. 83, 107 (1998).

Sandhill Shores contends Parada lacks Article III standing to pursue

claims for FHA and ADA violations because she cannot satisfy the

requirements of injury in fact and redressability. Dkt. 14 at 11. The court

addresses Parada’s standing for each cause of action in turn.

FHA

In her complaint, Parada alleges an impending injury with a

substantial risk of harm that stems from Sandhill Shores’ “refusal to make

reasonable accommodations . . . to afford a person an equal opportunity to

use and enjoy a dwelling, in violation of the FHA.” Dkt. 1 ¶ 34. Parada alleges

distinct and palpable injuries that are “fairly traceable” to Sandhill Shores’

failure to ensure that the Parada home remains accessible to a person with

disabilities. See Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429

U.S. 252, 261 (1977). Parada argues that an injunction by this court would

prevent Sandhill Shores’ placement of the beach-access path by her home—

thereby establishing that her injuries are redressable by a favorable judicial

ruling.

To begin, the court makes the unremarkable observation that private

litigants are the primary method of obtaining compliance with the FHA. See

Trafficante, 409 U.S. at 209. Recognizing “the enormity of the task of

assuring fair housing,” the Supreme Court has stated that private litigants

act “not only on their own behalf but also as private attorneys general in

vindicating a policy that Congress considered to be of the highest priority.”

Id. at 211 (internal quotation marks omitted). To effectuate the underlying

purpose of the FHA, the statute “permits any ‘aggrieved person’ to bring a

housing-discrimination lawsuit.” Bank of Am. Corp. v. City of Miami, Fla.,

137 S. Ct. 1296, 1303 (2017) (quoting 42 U.S.C. § 3613(a)).

The statute defines “aggrieved person” as “any person who” either

“claims to have been injured by a discriminatory housing practice” or

believes that such an injury “is about to occur.” 42 U.S.C. § 3602(i). In a

series of cases over the years, the Supreme Court has repeatedly held “that

the FHA’s definition of person ‘aggrieved’ reflects a congressional intent to

confer standing broadly.” Bank of Am. Corp., 137 S. Ct. at 1303.

Just how broadly standing extends under the FHA is evident by looking

at the four instances in which the Supreme Court has addressed the FHA’s

standing question in the context of a private enforcement action.4 Taken

together, these standing decisions support a conclusion that the sweep of the

4 See Bank of Am. Corp., 137 S. Ct. at 1304–05 (concluding that a city had

standing to bring a FHA claim against a lender engaged in a decade-long pattern

of racially discriminatory lending in the residential housing market that caused the

city economic harm); Havens Realty Corp. v. Coleman, 455 U.S. 363, 372 (1982)

(recognizing standing for “testers”—that is, “individuals who, without an intent to

rent or purchase a home or apartment, pose as renters or purchasers for the

purpose of collecting evidence”—against a real estate broker who was engaging in

racial steering practices); Gladstone Realtors v. Vill. of Bellwood, 441 U.S. 91, 115–

16 (1979) (finding that a municipality and four of its residents were allowed to sue

local realtors for the harm to the town’s racial balance caused by steering white and

black home seekers to different neighborhoods); Trafficante, 409 U.S. at 211–12

(holding that white tenants of an apartment complex had standing to sue the

landlord for discrimination against minority applicants, which deprived the

plaintiffs of the right to live in an integrated community).

FHA is extremely broad and generous. A unanimous Supreme Court has

described the FHA’s language as “broad and inclusive” and has stated that

the FHA implements a “policy that Congress considered to be of the highest

priority,” which can be given effect “only by a generous construction” of the

statute. Trafficante, 409 U.S. at 209, 211, 212.

The Supreme Court’s express language in Gladstone Realtors resolves

the standing issue in this case. Because “Congress intended standing under

[the FHA] to extend to the full limits of Art. III, . . . as long as the plaintiff

suffers actual injury as a result of the defendant’s conduct,” Parada is

permitted to prove that her rights have been—or there is a substantial risk

they will be—infringed. Gladstone Realtors, 441 U.S. at 103 n.9.

Additionally, because an injunction by this court would prevent Sandhill

Shores’ placement of the beach-access path by Parada’s home—thereby

limiting any threatened injury to her—Parada’s injuries are redressable by a

favorable judicial ruling. Parada has met all the requirements of Article III

standing.

ADA

Parada alleges an impending injury with a substantial risk of harm

stemming from Sandhill Shores’ “failure to make reasonable

modifications . . . necessary to afford ‘services, facilities, privileges,

advantages, or accommodations to individuals with disabilities’ in violation

of the ADA.” Dkt. 1 ¶ 43. Parada alleges these injuries are the result of

Sandhill Shores’ actions in refusing to move the beach-access path and that

such injuries would likewise be redressable by a favorable judicial ruling.

Sandhill Shores argues that Parada lacks standing because though the

placement of the beach-access path may “deny her the full use and enjoyment

of her dwelling,” her dwelling is not a “place of public accommodation” under

Title III of the ADA and therefore not a legally protected interest. Dkt. 14 at

10. Sandhill Shores likewise argues that because Parada has not alleged her

requested accommodation will allow her to use the public pathway—as

alleged Parada’s disability prevents her from using the pathway regardless of

where it is placed—her injury is not redressable by the court. Id.

But Sandhill Shores misunderstands, Parada argues, the purpose and

scope of the ADA’s Title III protections for disabled individuals to the “full

and equal enjoyment of the goods, services, facilities, privileges, advantages,

or accommodations of any place of public accommodation by any person

who owns, leases (or leases to), or operates a place of public

accommodation.” Dkt. 15 at 16 (quoting 42 U.S.C. § 12182(a)). Specifically,

Parada focuses her claim not on the public beach-access path, but on

Sandhill Shores’ placement of the path such that it deprives her of other

“goods . . . or accommodations,” such as the ability to use the beach that she

has used for decades. Id. at 17.

While “the Fifth Circuit has not expressly considered the proper

approach to determining standing in the typical Title III [ADA]

case,” Betancourt v. Ingram Park Mall, L.P., 735 F. Supp. 2d 587, 600 (W.D.

Tex. 2010), district courts within the circuit have made use of the “deterrent

effect doctrine.” Smith v. Ochsner Med. Ctr.-Westbank, L.L.C., No. CV 17-

11898, 2019 WL 296860, at *4 (E.D. La. Jan. 23, 2019). This doctrine, “based

on the provision in Title III guaranteeing ‘equality of opportunity’ for

disabled individuals becomes relevant when an individual suffers

‘continuing adverse effects where a defendant's failure to comply with the

ADA deters her from making use of the defendant's facility.’” Id.

(quoting Civil Rights Educ. & Enf’t Ctr. v. Hosp. Properties Tr., 867 F.3d

1093, 1098 (9th Cir. 2017)).

Accordingly, “an individual who is denied ‘the opportunity to

participate in or benefit from a good, service, facility, privilege, advantage, or

accommodation,’ whether directly or because she is deterred from revisiting

due to ADA noncompliance, suffers an injury sufficient to convey standing.”

Id. (quoting Betancourt, 735 F. Supp. 2d at 602). Here, the critical question

is whether Parada has suffered an injury in fact that is sufficient to confer

standing under the ADA.

Taking as true all allegations raised in the complaint, Parada has

suffered an invasion of a legally protected interest sufficient to seek

injunctive relief because she has properly pleaded that Sandhill Shores has

discriminated against her based on her disability, which deters her “from

visiting a public accommodation [the beach] because it is not in compliance

with the law.” Van Winkle v. Houcon Partners, L.P., No. CV H-17-01875,

2018 WL 3543908, at *7 (S.D. Tex. July 3, 2018). Because this injury is

redressable through a favorable judicial ruling, Parada has met all the

requirements of Article III standing for her ADA claim.

B. Abstention

Once a federal court determines that jurisdiction has been conferred

over a matter, it generally cannot abstain from exercising that jurisdiction.

New Orleans Pub. Serv., Inc. v. Council of City of New Orleans, 491 U.S.

350, 358 (1989). However, in “extraordinary and narrow” circumstances, a

district court “may decline to exercise or postpone the exercise of its

jurisdiction.” Allegheny Cnty. v. Frank Mashuda Co., 360 U.S. 185, 188–89

(1959). Such circumstances include instances where “interests of comity and

federalism counsel federal courts to abstain from jurisdiction whenever

federal claims have been or could be presented in ongoing state judicial

proceedings that concern important state interests,” Hawaii Hous. Auth. v.

Midkiff, 467 U.S. 229, 237–38 (1984) (Younger abstention), or when “there

are pending parallel proceedings in federal and state court involving the

same parties and issues.” Nationstar Mortg. LLC v. Knox, 351 F. App’x 844,

851 (5th Cir. 2009) (Colorado River abstention).

Sandhill Shores asks the court to abstain from the merits of the case

under the Younger and Colorado River doctrines because there is a lawsuit

pending in state court that was filed before the federal claims seeking the

same injunctive relief. See Dkt. 14-1 at 2. The state proceeding was brought

against Sandhill Shores and Robert M. Dolgin, Sandhill Shores’ current

president, by Paradise 89, LLC, the company that owns the Parada home. Id.

Parada and her husband have been principals of Paradise 89 for over 15

years. Dkt. 14 at 15. The court addresses each doctrine in turn.

Younger Abstention

Younger abstention has traditionally been reserved for highly

exceptional circumstances, such as “(1) ongoing state criminal proceedings,

(2) certain civil enforcement proceedings that are in aid of and closely related

to the State’s criminal statutes, and (3) pending civil proceedings involving

certain orders uniquely in furtherance of the state courts’ ability to perform

their judicial functions.” Tex. Entm’t Ass’n v. Hegar, 10 F.4th 495, 508 (5th

Cir. 2021) (cleaned up). Only after the court has determined that the instant

case falls into one of these exceptional categories does it evaluate whether it

should abstain under Younger.

In the second part of the analysis, the court determines whether it

should decline to exercise jurisdiction under Younger

when the three so-called Middlesex conditions are met: “(1) the federal

proceeding would interfere with an ‘ongoing state judicial proceeding’; (2)

the state has an important interest in regulating the subject matter of the

claim; and (3) the plaintiff has ‘an adequate opportunity in the state

proceedings to raise constitutional challenges.’” Bice v. La. Pub. Def. Bd., 677

F.3d 712, 716 (5th Cir. 2012) (quoting Middlesex Cnty. Ethics Comm. v.

Garden State Bar Ass’n, 457 U.S. 423, 432 (1982)). “If the three [Middlesex

conditions] are satisfied, then a federal court can assert jurisdiction only if

‘certain narrowly delimited exceptions to the abstention doctrine apply.’” Id.

(quoting Tex. Ass’n of Bus. v. Earle, 388 F.3d 515, 519 (5th Cir. 2004)).

Those exceptions are “(1) the state court proceeding was brought in

bad faith or with the purpose of harassing the federal plaintiff; (2) the state

statute is ‘flagrantly and patently violative of express constitutional

prohibitions in every clause, sentence, and paragraph, and in whatever

manner and against whomever an effort might be made to apply it;’ or (3)

application of the doctrine was waived.” Tex. Ass'n of Bus., 388 F.3d at 519

(quoting Younger v. Harris, 401 U.S. 37, 49 (1971)).

Parada argues that Younger abstention is inapposite for this case

because the nature of the suit does not fit into the narrow exceptions detailed

above as it is not criminal, quasi-criminal (civil enforcement), or related to

pending civil proceedings such as civil contempt orders. Dkt. 15 at 22.

Sandhill Shores argues that the Supreme Court has been expanding the

application of Younger over the last several decades and that Parada’s

contention to the contrary is a misreading of recent Court precedent. Dkt. 16

at 9–10. In support, Sandhill Shores argues that the “‘more vital

consideration’ behind the application of Younger abstention is not whether

a case is factually the same in nature as those in which Younger has already

been applied, but rather what lies at the heart of Younger abstention is the

‘notion of “comity”’ and maintaining ‘a proper respect for state function.’” Id.

at 10 (quoting Juidice v. Vail, 430 U.S. 327, 334 (1977)).

Sandhill Shores’ argument misses the mark. As the Court explained in

Sprint Commc’ns, Inc. v. Jacobs, “[d]ivorced from their quasi-criminal

context, the three Middlesex conditions would extend Younger to virtually

all parallel state and federal proceedings.” 571 U.S. 69, 81 (2013). “That result

is irreconcilable with our dominant instruction that, even in the presence of

parallel state proceedings, abstention from the exercise of federal

jurisdiction is the ‘exception, not the rule.’” Id. at 81–82. In so ruling, the

Court clarified and affirmed that Younger abstention extends only to the

three “exceptional circumstances” already identified, “but no further.” Id.

Because the underlying case does not meet the exceptional circumstances

prescribed by the Supreme Court, Younger abstention is inappropriate here.

Colorado River Abstention

Colorado River abstention applies to “parallel federal and state court

actions which are not necessarily identical but involve substantially the same

issues and parties.” Rogers Grp., Inc. v. WG Constr. Co., No. 3:12–CV–21,

2012 WL 2367702, at *1 (N.D. Miss. June 21, 2012) (citing Stewart v. W.

Heritage Ins. Co., 438 F.3d 488, 491 (5th Cir. 2006)). Colorado River

“applies only in ‘exceptional circumstances,’ and rests on considerations of

‘[w]ise judicial administration, giving regard to conservation of judicial

resources and comprehensive disposition of litigation.” Nationstar Mortg.,

351 F. App’x at 851 (internal citations omitted).

There are six factors for determining whether “exceptional

circumstances” exist: (1) assumption by either state or federal

court over a res; (2) relative inconvenience of the fora; (3)

avoidance of piecemeal litigation; (4) order in which jurisdiction

was obtained by the concurrent fora; (5) extent federal law

provides the rules of decision on the merits; and (6) adequacy of

the state proceedings in protecting the rights of the party

invoking federal jurisdiction.

Brown v. Pac. Life Ins. Co., 462 F.3d 384, 395 (5th Cir.2006).

“[T]he decision whether to dismiss a federal action because of parallel

state-court litigation does not rest on a mechanical checklist, but on a careful

balancing of the important factors as they apply in a given case, with the

balance heavily weighted in favor of the exercise of jurisdiction.” Moses H.

Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 16 (1983). “The

weight to be given to any one factor may vary greatly from case to case,

depending on the particular setting of the case.” Id.

“No one factor is necessarily determinative; a carefully considered

judgment taking into account both the obligation to exercise jurisdiction and

the combination of factors counseling against that exercise is

required.” Colorado River Water Conservation Dist. v. United States, 424

U.S. 800, 818–19 (1976). “Only the clearest of justifications will warrant

dismissal.” Id.

As a threshold matter, the court must determine whether there are

pending parallel state and federal proceedings. “A parallel proceeding exists

if there is a ‘substantial similarity’ between the state and federal proceedings,

which occurs when there are similar parties and ‘a substantial likelihood that

the state proceeding will fully dispose of the claims presented in the federal

court.’” Stonewater Adolescent Recovery Ctr. v. Lafayette Cnty.,

Mississippi, No. 3:19-CV-00231, 2020 WL 1817302, at *3 (N.D. Miss. Apr. 9,

2020).

Sandhill Shores argues both suits involve the same plot of land where

Parada substantially resides, are against the same defendant (though the

state suit also names Sandhill Shores’ president), and seek the same

injunctive relief. Dkt. 14 at 19–20. The causes of action are different,

however, as the state petition alleges: (1) breach of contract; (2) breach of

fiduciary duty; (3) promissory estoppel; (4) negligent misrepresentation; (5)

tortious interference; and (6) adverse possession. Dkt. 14-1 ¶¶ 71–82. The

state-court petition also seeks declaratory judgment in addition to injunctive

relief. Id. ¶¶ 83–86, 89–93. The federal suit alleges only violations of the

FHA and ADA. Dkt. 1 ¶¶ 31–46.

Parada argues the proceedings are not parallel because the parties are

not identical, i.e., Dolgin is not a party to the federal suit and Parada is not a

party to the state suit. Dkt. 15 at 25. To Parada, it is of no moment that she is

a principal of Paradise 89, LLC. More significantly, Parada contends that

because the issues are not the same between the cases, a decision by the state

court would not be dispositive of Parada’s reasonable-accommodation

claims. Id. at 26.

Sandhill Shores disagrees, arguing that “‘[p]arallel actions’ typically

involve the same parties, but the identity of the parties is not determinative.”

Air Evac EMS, Inc. v. Tex., Dep’t of Ins., Div. of Workers’ Comp., 851 F.3d

507, 520 (5th Cir. 2017). Additionally, Sandhill Shores contends a court may

“look both to the named parties and to the substance of the claims asserted”

to determine whether the state proceeding would be dispositive of a

concurrent federal proceeding.” Id. Moreover, a “mincing insistence on

precise identity” of parties and issues “need not be applied in every instance.”

RepublicBank Dallas Nat’l Ass’n v. McIntosh, 828 F.2d 1120, 1121 (5th Cir.

1987).

On this point, the court will take its lead from the Fifth Circuit in

American Family Life Assurance Co. of Columbus v. Biles, where it stated

that while “we have noted that it might not be necessary that the parties and

issues are absolutely identical in every instance for Colorado River

abstention to be appropriate, this case is not an example of the exception to

the general rule.” 714 F.3d 887, 892 (5th Cir. 2013).

It is true that the general subject matter of the two actions is the same

at a broad level of abstraction, but the other issues are disparate, and the

parties and their interests are not the same. A concurrent state ruling would

not be dispositive of the FHA and ADA claims that Parada has alleged, and

while the type of relief may be similar, that is not enough to equate a state

common-law case with a federal statutory civil-rights case.

The court pays heed to the oft-repeated admonition that federal

abstention should be “exceptional.” Black Sea Inv., Ltd. v. United Heritage

Corp., 204 F.3d 647, 650 (5th Cir. 2000). Accordingly, the court concludes

that the state and federal proceedings are not “parallel actions,” declines to

abstain, and therefore need not consider the Colorado River factors.

C. FHA Claim

Under the FHA, it is unlawful “[t]o discriminate in the sale or rental,

or to otherwise make unavailable or deny, a dwelling to any buyer or renter

because of a handicap of . . . a person residing in or intending to reside in

that dwelling. . . .” 42 U.S.C. § 3604(f)(1)(B). Such prohibited discrimination

includes “a refusal to make reasonable accommodations in rules, policies,

practices, or services, when such accommodations may be necessary to

afford [handicapped] person[s] equal opportunity to use and enjoy a

dwelling.” City of Edmonds v. Oxford House, Inc., 514 U.S. 725, 729 (1995)

(quoting 42 U.S.C. § 3604(f)(3)(B)).

The language of the FHA is “broad and inclusive” and its terms must

be given a generous construction. Trafficante, 409 U.S. at 209. The statute

is a “clear pronouncement of a national commitment to end the unnecessary

exclusion of persons with handicaps from the American mainstream,” and

“[g]eneralized perceptions about disabilities and unfounded speculations

about threats to safety are specifically rejected as grounds to justify

exclusion.” Groome Res., Ltd., L.L.C. v. Par. of Jefferson, 234 F.3d 192, 201

(5th Cir. 2000) (quoting H.R. REP. 100–711, at 18 (1988), reprinted in 1988

U.S.C.C.A.N. 2173, 2179).

To prevail on an FHA reasonable-accommodation claim, Parada must

demonstrate (1) that she is handicapped; (2) she requested an

accommodation and Sandhill Shores denied it; (3) the requested

accommodation is reasonable; and (4) the requested accommodation [in

rules, policies, practices, or services] of the handicap is necessary to afford

Parada an equal opportunity [i.e., equal to a non-handicapped person] to use

and enjoy the dwelling.5 Providence Behav. Health v. Grant Rd. Pub. Util.

Dist., 902 F.3d 448, 459 (5th Cir. 2018); 42 U.S.C. § 3604(f)(3)(B); see also

Harmony Haus Westlake, L.L.C. v. Parkstone Prop. Owners Ass’n, 851 F.

App’x 461, 463 (5th Cir. 2021).

At this stage Sandhill Shores takes aim only at the first element,

arguing Parada’s claim fails because she is not handicapped under the FHA.

5 A “dwelling” is “any building . . . occupied as . . . a residence by one or more

[individuals].” 42 U.S.C. § 3602(b) and (c).

Dkt. 14 at 24. Parada, of course, disagrees. Dkt. 15 at 33. As is standard, when

considering a Rule 12(b)(6) motion to dismiss, the court must “accept the

complaint’s well-pleaded facts as true and view them in the light most

favorable to the plaintiff.” Johnson v. Johnson, 385 F.3d 503, 529 (5th Cir.

2004).

A person is “handicapped”6 under the FHA if he or she “(1) [has] a

physical or mental impairment which substantially limits one or more of

such person’s major life activities, (2) [has] a record of having such

impairment, or (3) [is] regarded as having such an impairment.” 42 U.S.C. §

3602(h). “Major life activities include, but are not limited to, caring for

oneself . . . speaking . . . learning, reading, concentrating, thinking,

communicating, and working.” ADA Amendments Act of 2008, Pub. L. No.

110-325, 122 Stat. 3553 (2009); see also 29 C.F.R. § 1630.2 (2022) (adding

“interacting with others” as a major life activity). For the purposes of defining

disability with respect to an individual, a major life activity also includes the

operation of a “major bodily function,” such as the functions of the brain and

neurological system. 42 U.S.C. § 12102(2)(B).

6 The FHA uses the term “handicap” instead of the term “disability.” Both

terms have the same legal meaning. See Bragdon v. Abbott, 524 U.S. 624, 631

(1998) (noting that definition of “disability” in the ADA is drawn almost verbatim

“from the definition of ‘handicap’ contained in the Fair Housing Amendments Act

of 1988”).

Sandhill Shores contends Parada is not handicapped for the purposes

of her reasonable-accommodation claim because her alleged impairment

substantially limits activities that are not legally cognizable major life

activities. Dkt. 14 at 24. In support of its position, Sandhill Shores cites

Eastwood v. Willow Bend Lake Homeowners Association, Inc., No. 4:20-

CV-00400, 2020 WL 3412409, at *3 (E.D. Tex. June 22, 2020). In

Eastwood, the plaintiff suffered from a compromised immune system due to

his chemotherapy treatment for cancer, which he contended limited his

major life activity of “being in close proximity to persons unknown to him.”

Id. The court disagreed, finding “that this activity falls outside of the range

of major life activities—those central to daily life such as walking, seeing, and

breathing.” Id. Because he could not prove a major life activity was impaired

by his ailment, the plaintiff was not handicapped under the FHA and could

not prove discrimination based on a handicap. Id.

Parada argues Eastwood is readily distinguishable, as she does not

identify “being in close proximity to persons unknown to her” as the major

life activity at issue. Dkt. 15 at 35. Instead, Parada identifies her disability as

Alzheimer’s disease, which affects, at a minimum, the major life activities of

caring for herself, learning, working, concentrating, thinking,

communicating, and interacting with others. Id.; Dkt. 1 ¶ 4. These are clearly

major life activities for the purposes of her reasonable-accommodation

claim. Although the relevant effect of that disability for purposes of this case

is to make it impossible for Parada to cope with any exposure to strangers

without friends or family present, that effect is not the major life activity that

qualifies her as handicapped under the FHA.

Parada has adequately alleged her handicap for the purpose of her FHA

reasonable-accommodation claim.

D. ADA Claim

“Congress enacted the ADA in 1990 to remedy widespread

discrimination against disabled individuals. In studying the need for such

legislation, Congress found that ‘historically, society has tended to isolate

and segregate individuals with disabilities, and, despite some improvements,

such forms of discrimination against individuals with disabilities continue to

be a serious and pervasive social problem.’” PGA Tour, Inc. v. Martin, 532

U.S. 661, 674–75 (2001) (citing 42 U.S.C. § 12101(a)(2)). The forms of

discrimination include “outright intentional exclusion, the discriminatory

effects of [various kinds of] barriers, overprotective rules and

policies . . . exclusionary qualification standards and criteria, segregation,

relegation to lesser services,” and the “failure to make modifications to

existing facilities and practices.” 42 U.S.C. § 12101(a)(5). “The ADA forbids

discrimination against disabled individuals in major areas of public life,

among them employment (Title I of the Act), public services (Title II), and

public accommodations (Title III).” PGA Tour, 532 U.S. at 675.

To prove her reasonable-accommodation claim under the ADA, Parada

must show that (1) she is a qualified individual with a disability;7 (2) the

disability and its consequential limitations were known by Sandhill Shores;

(3) Sandhill Shores failed to make reasonable accommodations for such

known limitations; and (4) the requested accommodation was “necessary to

allow [Parada] to have usage and enjoyment in a facility equivalent to

individuals who are not disabled.” Providence Behav. Health, 902 F.3d at

459.

Sandhill Shores argues Parada’s claim should be dismissed because she

has failed to allege any facts supporting a discrimination claim under the

ADA. Dkt. 14 at 26.

The ADA defines discrimination, in part, as “a failure to make

reasonable modifications in policies, practices, or procedures, when such

7 “The term ‘qualified individual with a disability’ means an individual with

a disability who, with or without reasonable modifications to rules, policies, or

practices, the removal of architectural, communication, or transportation barriers,

or the provision of auxiliary aids and services, meets the essential eligibility

requirements for the receipt of services or the participation in programs or

activities provided by a public entity.” 42 U.S.C.A. § 12131 (2021).

modifications are necessary to afford such goods, services, facilities,

privileges, advantages, or accommodations to individuals with disabilities.”

42 U.S.C. § 12182(b)(2)(A)(ii).

Sandhill Shores argues that no discrimination has occurred under the

ADA because constructing a beach-access path pursuant to the Texas Open

Beaches Act does not constitute a “policy, practice, or procedure.” Dkt. 14 at

26. Further, Parada “has not alleged any facts to support the notion that

building a beach[-]access path constitutes a ‘policy, practice, or procedure’

within the context of 42 U.S.C. § 12182(b)(2)(A)(ii).” Id.

Neither public nor private entities are beyond the reach of the ADA.

See Bennett–Nelson v. La. Bd. of Regents, 431 F.3d 448, 454 (5th Cir. 2005)

(noting that public entities have the same obligation to make reasonable

accommodations for disabled individuals). Compliance with other

regulations also does not automatically insulate a covered entity from the

ADA’s requirements or from liability for discrimination. See Johnson v.

Gambrinus Co./Spoetzl Brewery, 116 F.3d 1052, 1062 (5th Cir. 1997)

(concluding FDA requirements for cleanliness of manufacturing process did

not warrant brewery’s blanket no-service-animals policy for public tours in

ADA reasonable-accommodation suit). Accordingly, Sandhill Shores’ actions

in compliance with the Texas Open Beaches Act do not insulate it from

liability where its discretionary actions run afoul of the ADA.

More relevant is the inquiry into whether Parada’s reasonable-

accommodation claim, as pleaded, satisfies Title III’s public-accommodation

requirement—without which there can be no discrimination claim. Title III

of the ADA prescribes, as a “[g]eneral rule”:

No individual shall be discriminated against on the basis of

disability in the full and equal enjoyment of the goods, services,

facilities, privileges, advantages, or accommodations of any place

of public accommodation by any person who owns, leases (or

leases to), or operates a place of public accommodation.

42 U.S.C. § 12182(a). “Public accommodation” is defined in terms of 12

extensive categories,8 which “should be construed liberally” to afford people

8 “(A) an inn, hotel, motel, or other place of lodging, except for an

establishment located within a building that contains not more than five rooms for

rent or hire and that is actually occupied by the proprietor of such establishment

as the residence of such proprietor;

(B) a restaurant, bar, or other establishment serving food or drink;

(C) a motion picture house, theater, concert hall, stadium, or other place of

exhibition or entertainment;

(D) an auditorium, convention center, lecture hall, or other place of public

gathering;

(E) a bakery, grocery store, clothing store, hardware store, shopping center,

or other sales or rental establishment;

(F) a laundromat, dry-cleaner, bank, barber shop, beauty shop, travel

service, shoe repair service, funeral parlor, gas station, office of an accountant or

lawyer, pharmacy, insurance office, professional office of a health care provider,

hospital, or other service establishment;

(G) a terminal, depot, or other station used for specified public

transportation;

(H) a museum, library, gallery, or other place of display or collection;

(I) a park, zoo, amusement park, or other place of recreation;

with disabilities “equal access” to the wide variety of establishments available

to the nondisabled. S. Rep. No. 101–116, P. 54 (1989). While a beach—the

jurisdictional hook to Parada’s Title III ADA claim—is not referred to by

name, the category of public accommodations including a park, zoo,

amusement park, or other place of recreation, makes it clear that a beach is

well within the liberally construed ambit of the ADA. § 12181(7)(I).

Turning to Parada’s contentions, her reasonable-accommodation

claim alleges that Sandhill Shores did more than merely “build[] a beach[-

]access path” pursuant to state and local laws. Dkt. 14 at 26. As a reminder,

Sandhill Shores, the property association for Parada’s subdivision, had at the

beginning of Parada’s residency in the neighborhood—in 2006—maintained

two beach-access paths in “areas a considerable distance from [Parada’s

home], thus establishing the necessary compliance [with the Texas Open

Beaches Act].” Dkt. 1 ¶ 5. Hurricane Ike subsequently destroyed the beach-

access paths, and there has been consternation among the residents of

Sandhill Shores ever since on where the beach-access paths should be

(J) a nursery, elementary, secondary, undergraduate, or postgraduate

private school, or other place of education;

(K) a day care center, senior citizen center, homeless shelter, food bank,

adoption agency, or other social service center establishment; and

(L) a gymnasium, health spa, bowling alley, golf course, or other place of

exercise or recreation.” 42 U.S.C. § 12181(7).

located. Dkts. 1 ¶¶ 6–7; 14 at 2–5. During this contentious period, Parada

made her disability known to Sandhill Shores, requested an accommodation

that was “necessary to allow [her] to have usage and enjoyment in a facility

equivalent to [her neighbors] who are not disabled,” Providence Behav.

Health, 902 F.3d at 459, and waited for a response. Dkt. 1 ¶¶ 10–11.

Sandhill Shores’ briefing makes it sound like a fait accompli that the

beach-access paths must be situated adjacent to Parada’s home because of

the competing demands of the Texas Open Beaches Act, the City of Galveston

Beach Access and Dune Protection Plan, and the owners of Lot 31 (and their

attorneys)—who apparently have had more success than Parada in

persuading the homeowners’ association about where to place the beach-

access path. Dkt. 14 at 2–5. It may well be that no other viable option exists

for the placement of the second beach-access path that complies with the

Texas Open Beaches Act and the City of Galveston’s Beach Access Plan, but

that remains to be seen. It certainly does not foreclose Parada’s claim for

relief at this time, nor does it make Sandhill Shores’ allegedly discretionary

“policy, practice, or procedure” of not accommodating Parada’s request any

less discriminatory or move it outside the purview of the ADA.

Accordingly, Parada’s ADA claim survives.

* * *

For the reasons stated above, the defendant’s motion to dismiss is

denied. Dkt. 14.

Signed on Galveston Island this 25th day of May, 2022.

JEFFREY VINCENT BROWN

UNITED STATES DISTRICT JUDGE

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