Appendix — Dean v. Chase Manhattan Mortgage Corp.

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Supreme Court, U8.

01 356 AUG 2 6 2003

; OFFICE OF THE CLERIC

CS.NO. ‘

UNITED STATES SUPREME COURT

PETITIONER,

THOMAS G. DEAN

RESPONDENTS,

CHASE MANHATTAN MORTGAGE CORP.,

RESURGENCE MARKETING & REAL ESTATE,

FORREST HOMES, US DEPT. OF HUD, US

DISTRICT JUDGE WILLIS B. HUNT, AND THE

CLAIRMONT LODGE.

PETITION FOR WRIT OF CERTIORARI TO

ELEVENTH CIRCUIT COURT OF APPEALS

APPENDIX

THOMAS G. DEAN

3162F BRIARCLIFF RD.

ATLANTA GEORGIA 30329

(404) 929-9437

THE PETITIONE

[| DO NOT PUBLISH |

THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 00-14275

Non-Argument Calendar

D.C. Docket No. 99-02218-CV-JEC-]

THOMAS G. DEAN

Plaintiff-Appellant

versus

THE CHASE MANHATTAN BANK,

FORREST HOMES, et al.,

Defendant-Appellees

Appeal from the United States District Court

for the Northern District of Georgia

( June 6, 2001 )

Before EDMUNDSON, BARKETT and WILSON,

Circuit Judges.

PER CURIAM:

We find no merit to Thomas G. Dean's Appeal

of the dismissal of his pro se amended complaint alleging

violations of his civil rights and the Fair Housing Act, 42

USC ss 3601, 1981, 1982, 1985.

The dismissal of the amended complaint against

Chase Manhattan Mortgage Corporation without preju-

dice for failure to effect service of process was not an

error because Chase challenged Dean's service upon

Chase, a corporation, as required pursuant to Fed. R.

Civ. P. 4(h)(1) and (e)(1) within 120 days after filing his

amended complaint as required by Fed. R. Civ. P. 4(m).

See Schnabel v. Wells, 922 F.2d 726, 728 (11th Cir.

1991); Bowers v. Economation Inc., 208 Ga. App. 661,

663.431 S.E.2d 420,422 (1993); Prisco v. Frank, 929

F.2d 603,604 (11th Cir. 1991).

The district court did not err in dismissing the am-

ended complaint against Clairmont Lodge for failure to

state a claim under Fed. R.Civ. P. 12(b)(6) because

| _ ae Te a wert P

Dean's conclusory allegation that Clairmont intended to

racially discriminate against him was contradicted by

materials upon which Dean himself relied to support his

ss 1981 and ss 1982 claims and Dean failed to state a

claim under the Fair Housing Act under a theory of rac-

ial discrimination by disparate impact. Gonzalez v. Lee

County Housing Authority, 161 F.3d 1290, 1300 n. 35

(11th Cir 1998) (ss 1981 claims); Associated Builders.

Inc. v. AlabamaPower Co., 505 F.2d 97, 100 (Sth Cir

1974); United States v. Mitchell, 580 F.2d 789, 791-

92 (Sth Cir 1978).

The district court did not err in dismissing the am-

ended against Forrest Homes and Resurgence Market-

ing & Real Estate, Inc. for failure to state a claim under

Fed. R.Civ. P. 12(b)(6) because Dean's conclusory all-

egation that he was qualified to purchase a home from

Forrest and Resurgence is contradicted by materials up-

on which Dean himself relied to support his Fair Housing

Act claim. Herron v. Blackwell, 908 F.2d 864,870 (11

Cir.1990); Associate Builders, 505 F.2d at 100; Conely,

355 U.S. at 45-46; 78S.Ct. at 99, 102.

The court did not err in finding that it lacked sub-

ject-matter jurisdiction over Dean's claims against the

Department of Housing & Urban Developement/FHA

under the doctrine of sovereign immunity because Dean

sought money damages against HUD. Raulerson v. Uni-

ted States, 786 F.2d 1090,91-92(1 1th Cir 1986); Pan-

ola Land Buyers Assoc. v. Shuman, 762 F.2d 1550,

1554 (11th Cir 1985); Unimex, Inc v. United States

Dept. of Housing and Urban Developement, 594 F.2d

1060, 1061 (Sth Cir 1979).

The court did not err in finding that it lacked sub-

ject-matter jurisdiction over Dean's claims against Judge

Willis B. Hunt under the doctrine of absolute judicial im-

munity because Dean sought money damages against

Judge Hunt for actions took in his judicial capacity. Bol-

in v. Story, 225 F.3d 1234, 1239 (11th Cir 2000).

{end of page three}

The district court did not abuse its discretion in deny-

ing Dean appointment of "Attorney General" or oth-

er counsel for assistance with his civil claim under the

Fair Housing Act. Shah87 F.3d at 1271; United States

v. Bob Lawrence Realty, Inc., 474 F.2d 115, 125 n.

14 (5th Cir.), cert. denied, 414 U.S. 826 (1973); Dean

v. Barber, 951 F.2d 1210, 1216 (11th Cir. 1992).

Finally, we conclude that the district court did not

err in dismissing Dean's motion for costs as moot after

his claims had been dismissed as to all defendants.

Fed. R. Civ. P. 55.

AFFIRMED.

{end of page four}

PETITIONER' EXHIBIT "i"

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

THOMAS G. DEAN,

Plaintiff, CIVIL FILE NO.

v. 1:99-CV-2218A-JEC

CHASE MANHATTAN MORTGAGE CORP.,

FORREST HOMES, RESURGENCE MARKET-

ING & REAL ESTATE INC., UNITED STATES

DEPARTMENT OF HOUSING AND URBAN DE-

VELOPEMENT, WILLIS B. HUNT, AND CLAIR-

MONT LODGE,

Defendants.

ORDER

This case is presently before the court on defendant

Clairmont Lodge's Motion to Dismiss [12], defendant

Department of Housing and Urban developement's Mo-

tion to Dismiss [18], defendant Chase Manhattan Bank

and Chase Manhattan Mortgage Corporation's Motion

to Dismiss [20], defendant Forrest Homes Inc.'s Motion

to Dismiss [21], defendant Resurgence Marketing and

Real Estate, Inc.'s Motion to Dismiss [22], plaintiff's

Motion for Cost of Personal Service [28], defendant

Chase Manhattan Bank and Chase Manhattan Mortga-

ge Corporations's Motion to Extend Time to respond to

Plaintiff's Motion for Costs [29], and defendant Willis B.

Hunt's Motion to Dismiss [40]. The Court has reviewed

the record and the arguments of the parties and, for rea-

sons set forth below, concludes that defendant Clairm-

ont Lodge's Motion to Dismiss [12] should be GRAN-

TED, defendant Department of Housing and Urban De-

velopement's Motion to Dismiss [18] should be GRAN-

TED, defendant Chase Manhattan Bank and Chase

Manhattan Mortgage Corporation's Motion to Dismiss

[20] should be GRANTED WITHOUT PREJUDI-

CE, defendant Forrest Homes, Inc.'s Motion to Dismiss

[21] should be GRANTED, defendant Resurgence

Marketing & Real Estate Inc.'s Motion to Dismiss [22]

should be GRANTED, plaintiff's Motion for Cost of

Personal Service [28] should be DENIED AS MOOT,

defendant Chase Manhattan Bank and Chase Manhatt-

an Mortgage Corporation's Motion to Extend Time to

Respond to Plaintiff's Motion for Cost [29] should be

DENIED AS MOOT, and defendant Willis B. Hunt's

Motion to Dismiss [40] should be GRANTED.

BACKGROUND

Plaintiff, proceeding pro se, filed suit on sugust 30,

1999 against defendants Chase Manhattan Bank,

Forrest Homes, |

1 Forrest Homes, Inc. is the company that owned the

home that plaintiff attempted to purchase. It is undisputed

that Forrest entered into a "purchase Home Agreement"

for plaintiff to purchase a home in the

{end of pages one & two}

Resurgence Marketing and Real Estate, Inc., 2 the Unit-

ed States Department of Housing and Urban Develope-

ment/FHA, Judge Willis B. Hunt, and Clairmont Lodge.

(compl. [1] at 1) In his complaint, plaintiff makes sever-

al general allegations against all defendants, arguing that

they discriminated against him due to his race in violation

of "the Fair Housing Act, 42 U.S.C. ss 3601 et seq.”

(Id. at P. 2) In addition, plaintiff claims that "defendants"

also discriminated against him in violation of 42 U.S.C.

ss 1981, 1982 & 1985(c)." (Id) Specifically, plaintiff

claims that he attempted to engage in real estate transac-

tions on June 8, 1999, that he met all qualifications for

purchasing the property, that "defendants" refused to do

business with him and that the property remains available

for sale. (Id. at P.3) In addition, plaintiff asserts that "de-

fendants" advertise homes loans available at "1% down

& possible 5.5% interest" but refused to render such an

interest rate to plaintiff because "defendants" refused to

do business with him. (Id. at P.4)

. 9

Rivercrest subdivision. P1.'s Resp. to Mand. Disclosures

[2] at Ex. C-1; Forrest Mot. to Dismiss [21] at Ex. A. )

According to Micheal Adamson, CEO of Forrest, every

homeowner in Rivercrest is black, the same race as plain-

tiff (Id: at Adamson Aff. at P. 7)

2 Resurgence Marketing and Real Estate, Inc. is the

brokerage company that served as the agent facilitating

plaintiff's attempted purchase of the Forrest home. (PI.'s

Resp. to Mand Disclosure [2] at Ex. C-1; Forrest Motion

to Dismiss [21] at Ex. A.)

{end of page three}

With regard to a separate transaction, plaintiff cont-

ends that he attempted to rent an apartment from the

Clairmont Lodge on April 26, 1999 for a certain rate.

(Id. at P. 5) At some point after accepting the rate plain-

tiff claims that the Clairmont Lodge changed the rate

and committed fraud in violation of "42 USCA ss 3601,

1981, 1982." (Id) In additional, plaintiff alleges that "he

has experienced parading outside his apartment at the

Claimont Lodge . . . and or verbal assaults because of

plaintiffs having complained to the accounting office of

Clairmont Lodge about the rate discrepancy." (Id.)

Plaintiff also asserts that the "paraders" are parading out-

side his apartment due to his filing of two previous law-

suits in front of defendant Judge Hunt, 1:98-CV-2901

WBH and 1:99-CV-1127-WBH. (Id.) Finally, plaintiff

alleges that these paraders are in front of his apartment "

because of racial discrimination against plaintiff." (Id.)

Finally, plaintiff claims that Judge Hunt refused to app-

oint him an attorney in civil action number 1;98-CV-

2901-WBH "so that defendant Hunt may satisfy his app-

etite to discriminate against the plaintiff to display his ra-

cial prejudice against plaintiff and other minorities." (Id.

at P.6.) Plaintiff contends that the denial of plaintiff's mo-

tion for appointment of counsel violated his rights under

42 USCA ss 3604(f)(3)(B).” (Id.)

{end of page four}

On October 18, 1999, plaintiff filed a document entit-

led "Prima Facie Civil Rights Complaint" which purports

to be an amended complaint. (Am. Compl. [11] at 1)

This document is nearly identical to the original compl-

aint with the substitution of Chase Manhattan Mortgage

Corporation for Chase Manhattan Bank (Id.) In every

other respect, the complaint is identical. (Compare

Compl. [1] with Am. Compl. [11].)

Each defendant has filed a separate motion to dismiss

in lieu of filing an answer to plaintiff's complaint. the Co-

urt will address each motion in turn, setting out the argu-

ments in support of the motions to dismiss below.

Finally, on December 14, 1999, plaintiff filed a Motion

for Cost of Personal Services of Plaintiff. (P1.'s Mot. for

Costs [28] at 1) In this motion, plaintiff request this court

to grant him 971,103.95 in costs. (Id.) Plaintiff claims

that defendants' failure to file an answer in this case war-

rants an entry of default against them under "rules 4(b),

4(c) (D), 11, 55, & 56" of the Federal Rule of Civil Pro-

cedure. (Id.) As the court has determined that plaintiff

has failed to state a claim upon which relief can be gran-

ted against any defendant, this motion is DENIED AS

MOOT.

{end of page 5}

DISCUSSION

I. Clairmont Lodge, Chase Manhattan Mortgage,

and Resurgence Marketing and Real Estate's Motion to

Dismiss Under Rule 12(b)(5)

Clairmont Lodge, Chase Manhattan Mortgage Co-

mpany (hereinafter "chase Mortgage"), and Resurgence

Marketing and Real Estate ("hereinafter Resurgence")

have filed motions to dismiss based upon plaintiff's app-

arent failure to effecuate service of process in accordan-

ce with the Federal Rules of Civil procedure. In lieu of

personally serving defendants, plaintiff mailed a copy of

the original complaint, a summons, a copy of plaintiff's

mandatory disclosures, acopy of plaintiff's motion for

appointment of counsel, a discovery request, and a req-

uest for acknowledgement of service of process by cer-

tified mail to the Claimont Lodge at 10108 Cannon

Farmhill Rd. Atlanta Georgia 30349. (PI.'s Aff. of Ret.

of Serv. of Process [8] at P. 5, Ex. RS 14.) Likewise,

plaintiff mailed the same information to Chase Manhatt-

an Mortgage at 1777 Phoenix Pkwy # 200, Atlanta,

Georgia 30349 and to Resurgence at 4064B Nine Mc

Farland Drive, Alpharetta, Georgia 30004. (PI's Aff. of

Serv. of Process [8] at Ex. RS2 & RS8; Resurgence

Mot. to Dismiss [22] at Ex. A.)

{end of page six}

By sending the "Notice of Acknowledgement of Recei-

pt of Summons and Complaint" form, plaintiff attempted

pee

to comply with Rule 4(d) of the Federal Rules of Civil

Procedure regarding "waiver of service."

Upon filing his amended complaint, plaintiff attempted

to re-serve defendants Clairmont Lodge, Chase Mortg-

age, and Resurgence. Instead of relying on the mail this

time, plaintiff hired a deputy sheriff to personally deliver

a copy of the complaint and summons to Clairmont Lo-

dge's property Management office, to Chase Mortgage’

Atlanta office, and to Senate Alpharetta office.

The three defendants claim that plaintiff's first attempt

to serve process is insufficient under rule 4(d) of the Fe-

deral Rules of Civil Procedure, as plaintiff failed to incl-

ude a proper waiver of service form under rule 84, fail-

ed to include a self addressed, stamped envelope, and

failed to enclose two copies of the notice and request

for waiver. (See, e.g., Clairmont Lodge's Mot. to dis-

miss [12] at 2) In addition, defendants contend that

- Plaintiff failed to comply with Rule 4(e) and (h) for serv-

ice of process on a corporation because he failed to de-

liver a copy of the summons and complaint to an agent

authorized to accept service of process and failed to de-

liver a copy of the summons and complaint to an officer

or managing agent of the corporation. (See id. at 3)

Moreover, the three defendants contend that plaintiff's

renewed effort to serve it with process through the use

of the sheriff's deputy was equally faulty, as plaintiff fail-

ed to serve the proper agent for receiving service of pro-

cess. (See Clairmont Lodge's Reply Br. in Supp. of

Mot. to Dismiss [19] at 3; Resurgence's Mot. to Dis-

miss [22] at 6-7.)

It is clear that the waiver of service form failed to co-

mply with Rule 4(d) in two respects.3 First, plaintiff's

mailings were not "addressed directly ... to an officer

or managing or general agent (or other agent authorized

by appointment or law to receive service of process)"

of Clairmont Lodge, Chase Mortgage, or Resurgence.

Fed. R. Civ. P. 4(d)(2)(A). Indeed, plaintiff did not co-

mply with Rule 4(d)(2), as he sddresses the notice and

Sig Shape

pot pa Bel Oi etn on >

pisteedcnik ee eee Re ee er mane eee ae

request for waiver to "Clairmont Lodge," "Chase Man-

hattan Mortgage," and "Resurgence Marketing and Real

Estate Inc. " and noi specifically to an agent or officer

3 Chase Mortgage also point out that plaintiff failed

to utilize the correct form, under Rule 84, in order to obt-

ain a waiver from the former. Indeed, Form 1A promul-

gated under rule 84 of the Federal Rules of Civil Proce-

dure is the appropriate form to utilize when attempting to

obtain a waiver of service. Moreover, Chase Mortgage

notes that plaintiff did not include the pre-addressed and

postage pre-paid envelope for return of service as set for-

th in Rule 4(d)(2)(G) and Form 1A. (Chase Defs.' Motion

to Dismiss [20] at 6.)

{end of page eight}

of the corporation. (See P1.'s Aff. in Supp. of Return of

Serv. [8] at Exs. RS2, RS4, RS7, RS8, RS10, RS14.)

Secondly, in his notice, plaintiff incorrectly demanded

that the three defendants "complete the acknowledge-

ment part of the form and return one copy of the comp-

leted form to plaintiff within 20 days." (Id. at 6) Rule 4

(d)(2)(F) states that the notice "shall allow defendant a

reasonable time to return the waiver, which shall be at

least 30 days from the date on which the request is sent."

Clearly, plaintiff's notice and waiver did not comply with

Rule 4(d)(2)(F). In addition, Chase Mortgage Maintain

that, in his notice plaintiff stated, " If you do complete

and return this form . . . [you] must answer the compl-

aint within 20 days." (Chase Defs.' Mot. to Dismiss

[20] at 6) It is clear that Rule 4(d)(3) permits a defend-

ant who timely returns the waiver of service form to an-

swer the complaint within "60 days after the date on

which the request for waiver was sent." Obviously, plain-

tiff may not alter the literal wording of Rule 4(d)(3), and,

if properly served with a notice and waiver form, defen-

dants would have 60 days to answer the complaint.

Moreover, it is also clear that plaintiff failed to properly

serve any of the three corporations as required by Rule

4(h) of the Federal Rules Civil Procedure. Plaintiff's

{end of page nine}

attempt at personal service by delivering the complaint

to Clairmont Lodge's property office is not sufficient un-

der Rule 4(h), as he did not serve the complaint on an

officer or registered agent. (Clairmont Lodge's Reply

Br. [19] at 3.) Similarly, plaintiff's attempt at personal

service of Chase Mortgage fails for the same reason,

as plaintiff's agent did not serve a copy of the summons

and complaint on Chase Mortgage's registered agent or

an officer of the corporation.4 (See Chase Defs.' Mot.

to Dismiss [20] at 7, Ex. A.) The return of service form

for Resurgence indicates tiat the complaint and summ-

ons were not served on Resurgence Mot. to Dismiss

(25) at Ex. RS21.)

Although it appears that plaintiff did not comply with

the requirements of Rule 4(d) in his attempt to obtain

waiver of service or the requirements of Rule 4(h) for

service upon a corporation, the Court noted that plain-

tiff is proceeding pro se and has no formal, legal training.

Typically, under these circumstances, the court would

permit plaintiff to re-serve the defendants who were not

served properly or dismiss the claims

4 Indeed, if plaintiff had checked with the Georgia

Secretary of State, he would have realized that Chase

Mortgage maintains an agent for service of process in

Atlanta. (Chase Defs.' Mot. to Dismiss [20] at 3, 7.)

{end of page ten}

against the unserved defendants without prejudice. See

Fed. R. Civ. P. 4(m). In the instant case, however, plain-

tiffs complaint fails to state a claim upon which relief

could be grantedagainst defendants Clairmont Lodge,

Resurgence, Forrest Homes, and its complaint, in its

current garbled state, does net sufficiently state a claim

against Chase Mortgage. Because any re-service would

be futile on defendants Forrest Homes, Resurgence,

and Clairmont Lodge, the court has granted their mo-

tions to dismiss for failure to state a claim upon which

relief can be granted. With regards to defendant Chase

Mortgage, it is possible that plaintiff could redraft his

complaint in a manner that would survive a motion to

dismiss. Out of deference to plaintiff's pro se status, the

Court will deny without prejudice Chase Mortgage's

motion to dismiss on 12(b)(6) grounds, but grant, with-

out prejudice, the motion to dismiss on 12(b)(5) service

of process grounds. This result will permit plaintiff to re-

file a complaint against defendant Chase Mortgage and

properly effectuate service of process.

II. Motions to dismiss for Failure to State a Claim

Upon Which Relief Can Be Granted

A. Motion to Dismiss Standard

Under Federal Rule 12(b)(6) a court may dismiss a

claim for failure to state a claim upon which relief may

be granted.

{end of page eleven}

When deciding whether to dismiss a claim under rule

12(b)(6), a court must construe the complaint in light

most favorable to the plaintiff and accept the plaintiffs’

allegations of material fact as true. See Beck v. Deloitte

& Touche, 144 F.3d 732, 735 (11th Cir. 1998). A

court may grant a motion to dismiss if it concludes that

plaintiffs cannot prove any set of facts consistent with the

complaint which would entitle him or her to relief. See

Hishon v. King & Spaulding, 467 U.S. 69, 73 (1984).

Defendants bear the very high burden' of showing that the

plaintiff cannot conceivably prove any set of facts that

would entitle them to relief." Beck, 144 F.3d at 736.

In addition, "Rule 8 requires that federal courts give

pleading a liberal reading in the face of a 12(b)(6) mo-

tion to dismiss." GJR Investments, Inc. v. County of Es-

cambia, 132 F.3d 1359, 1369 (11th Cir. 1998). Indeed,

"[t]his admonition is particularly true when the parties

are proceeding pro se. Courts do and should show leni

ency to pro se litigants not enjoyed by those with the

benefit of a legal education." Id. The Eleventh Circuit

has cautioned, however, that "this leniency does not give

a court a license to serve as a de facto counsel for a pa-

rty, . .. or to rewrite an otherwise deficient pleading in

order to sustain an action." Id. (citation omitted).

{end of page twelve}

B. Clairmont Lodge

In paragraph five of plaintiff's complaint,s plaintiff alle-

ges that Clairmont Lodge initially quoted one rate for his

apartment and, while plaintiff was residing in the apart-

ment, raised the rate. (Am Compl. [11] at P. 5) Plaintiff

claims that Clairmont Lodge's refusal to rent the apart-

ment at the quoted rate constitutes rate fraud 42 U.S.C.

ss 1981, 1982, and 3601.

In addition, plaintiff contends that "paraders" made

verbal assaults as a result of plaintiff's complaint to the

rental office regarding the rate hike. (Am Compl. [11]

at P. 5.) Plaintiff asserts that the verbal assaults were

directed at him because of his race and because of the

fact that he had previously brought two lawsuits. (Id.) In

the first of these lawsuits, 1:98-CV-2901 WBH, plaintiff

sued Peach State Mortgage Company, Great Oak

Mortgage Company, and Citizens Trust Mortgage Com-

pany. ‘P1.'s Br. in Opp'n to Judge Hunt's Mot. for

5 This is the only paragraph in plaintiff's complaint in

which Clairmont Lodge is specifically addressed. (See

Am. Compl. [11] at P. 5.) Although plaintiff addressed

other claims generally to all defendants, plaintiff has off- .

ered no factual basis for connecting Clairmont Lodge to

the Rivercrest subdivision. Accordingly, the court will

specifically address only those claims explicitly directed

at Clairmont Lodge.

{end page Thirteen}

Enlargement of Time [7] at Ex. 1.) In the other lawsuit,

1:99-CV-1127WBH, plaintiff sued Banner Ford, Inc.,

Mr. Transmission, Inc., and Pep Boys, Inc.

Plaintiff's first allegation against Clairmont Lodge is that

Clairmont Lodge committed rate fraud by increasing his

rent allegedly in violation of three different federal statut-

es: 42 U.S.C. ss 1981, 1982, and 3601. To state a cl-

aim under ss 1981, plaintiff must prove the following ele-

ments: " (1) [t}that plaintiff is a member of a racial mino-

rity; (2) [a] n intent to discriminate on the basis of race

by the defendant; and (3) [t]hat discrimination concern

an ‘enumerated activity’ (i.e., one of those activities, or

rights, directly or indirectly enumerated in the statute)."

Baker v. McDonald Corp., 686 F.Supp. 1474, 1481

(S.D. Fla. 1987), aff'd, 865 F.2d 1272 (11th Cir.

1988). Accord Mian v. Donaldson, Lufkin & Janrette

Secs. Corp., 7 F.3d 1085, 1087 (2d Cir 1993); Garg

v. Albany Ind. Dev. Agency, 899 F.Supp. 961, 967

(N.D.N.Y. 1995). Section 1981 states:

All persons within the jurisdiction of the United

States shall have the same right in every State and Terr-

itory to make and enforce contracts, to sue, be parties,

give evidence, and to the full and equal benefit of all

laws and proceedings for the security of persons and

property as is enjoyed by white citizens, and shall be

subject to like punishment, pains, penalties, taxes, licen-

ses, and exactions of every kind, and to no other.

{end of page fourteen}

42 U.S.C. ss 1981 (1994). The specific right at issue in

the instant case is the right "to make and enforce contr-

acts.’

Plaintiff has clearly plead the first element of his prima

facie case by alleging in his complaint that he is black.

Clairmont Lodge contends that, in his substantive allega-

tion regarding the increased rate for his apartment, plain-

tiff failed to properly allege that this rate hike was done

because of plaintiff's race. ( Clairmont Lodge's Mot. to

Dismsss [12] at 7.) A-review of paragraph five of plain-

—

tiffs complaint which includes his allegation of rate fraud

against Clairmont Lodge demonstrates that plaintiff did

not allege that this rate hike was due to purposeful dis

crimination as required under ss 1981.

Indeed, plaintiff attaches an exhibit to his complaint

which denenatretes the impossibility of recovery agai-

nst Clairmont Lodge which describes the Lodge's deci-

sion to terminate all previous "Innkeeper-Occupant Ag-

reements" betweenit and its tenants and to begin charg-

ing its quests on a day to day or week to week basis.6

pl.'s Resp. to Mand. Disclosures [2] at Ex. C-4 (Feb-

ruary 8, 1999 Letter") at 1)

6 Because Clairmont Lodge changed from a month to

] month rate to a week to week rate, plaintiff's rate increa-

sed slightly.

{end of page fifteen}

In addition, this letter explains that "each quest will be

required to complete a new " 'Guest Registration Form"

including the rate change. ( February 8, 1999 Letter at

1.) Accordingly, all quests, regardless of their race,

were required to agree to a different rate schedule.

Under ss 1981, a ptaintiff may not rely on a disparate

impact theory to demonstrate that a defendant discrimin-

ated against him. See General Building Contractors Ass'

v. Pennsylvania, 458 U.S. 375, 389-91 (1982). Cf.Fer-

ril v. Parker Group, Inc., 168 F.3d 1290, 1300 n. 35

(11th Cir. 1998). Indeed, to state a claim for racial dis-

crimination under ss 1981, a plaintiff must show that the

defendant purposefully against plaintiff. See General

Building Contractors, 458 U.S. at 391; Ferrill, 168 F.3

d at 472; Gonzalez, 161 F.3d 1300 n. 35. In plaintiff's

second affidavit, he claims that Clairmont Lodge's rate

hike demonstrated discrimination especially since the

majority of the tenants at [C]lairmont Lodge be\black

or minorities." (Pl.'s Second Aff. [2] at P. ii.) Linerally

;

construing plaintiff's second affidavit in conjunction with

his complaint, this claim resembles a claim of disparate

impact and is insufficient to satisfy plaintiff's burden of

pleading facts

{end of page sixteen}

demonstrating that Clairmont Lodge harbored an intent

to discriminate against him because of his race in viola-

tion of ss 1981.7

Plaintiff includes a sentence in the same paragraph

which states that "Clairmont Lodge may be pr: yperly jo-

ined in this action as a conspirator to display it[s] racial

hatred against blacks." (Am Compl. [11] at P 5.) This

statement, standing alone, is insufficient to meet plaintiff's

burden of "alleg[ing] with specificity facts sufficient to

show or raise a plausable inference that the defendant

purposefully discriminated against him because of his

race." Garg, 899 F.Supp. at 967. Accord GJR Invest

ment, Inc. v. County of Escambia, 132 F.3d 1359,

_ 1368 (11th Cir 1998) ("GJR's allegations of discrimina-

tory intent are deficient . . .. using many broad pejora-

tive words to describe the defendants’ intentions without

giving any specifics.") Keeping in mind the Court's res-

ponsibility to afford leniency to a pro se litigant, the co-

urt concludes that plaintiff has not stated a claim under

ss 1981 for the alleged rate hike.

7 Indeed, were plaintiff's grievances actionable, ss

1981 would perclude a landlord from increasing the rent

at any premises in which a majority of the tenants were

a member of a single race group, as such increases wou-

ld constitute racial discrimination under ss 1981.

{end of page seventeen}

Se asin a PI, qt Bedale te

Similarly, plaintiff's allegation that "paraders" in front

of his apartment made slanderous comments about him

in retaliation for his complaint regarding the rate increase

is likewise insufficient to state a claim under ss 1981.

Although the Eleventh Circuit has recognized a claim for

retaliation under ss 1981 in the employment contract te-

xt, see, €.g., Andrews v. Lakeshore Rehab. Hosp., 140

F3d 1405, 1412-13 (11th Cir 1998), the Court concl-

udes that plaintiff has failed to state a claimbased on the

alleged "paraders™ slanderous comments. Moreover,

plaintiff alleges only that he complained about the rate

hike, not about intentional discrimination and, as such,

has not properly alleged that he was engaged in "statutor-

ily protected activity" when he complained to the manage-

ment of Clairmont Lodge about the rate hike. See Clover

v. Total Sys. Servs. Inc., 176 F3d 1346, 1350 (11th Cir

1999). Finally, plaintiff does not identify the paraders nor

does he allege that Clairmont Lodge had anything to do

with the paraders' actions, failing to establish a casual

connection between the allegedly illegal discrimination and

any acts of the Clairmont Lodge. See Morgan v. City of

Jasper, 959 F.2d 1542, 1547 (11th Cir. 1992). As such

plaintiff has failed to establish a claim for retaliation under

ss 1981.

{end of page eighteen}

In addition, plaintiff claims that the "paraders” are creat-

ing a "disparate impact outside of plaintiff's aparment

which particularly defame plaintiff because plaintiff filed

two prior suits in this court." (Am Compl. [11] at P.5)

Liberally construed, this claim appears to be another re-

taliation claim, alleging that the "paraders" are retaliating

odiine plaintiff for pursuing his two other lawsuits. In the

first of these two lawsuits, 1:98-CV-2901-WBH, plain-

tiff sued Peach State Mortgage Company, Great Oak

Mortgage Company, and Citizens Trust Mortgage Com-

pany.(Pl..'s Br. in Opp'n to Judge Hunt's Mot. for Enlar-

gement of Time [7] at Ex. 1) In the other lawsuit, 1:99-

CV-1127 WBH, plaintiff sued Banner Ford, Inc., Mr.

Transmission, Inc., and Pep Boys, Inc. Defendant Clair-

mont Lodge is not a party to either of these two lawsuits

and, as such, cannot logically be retaliating against plain-

tiff for filing the lawsuits. As plaintiff has been unable to

state a cognizable claim under ss 1981 for either the all-

eged rate hike or retaliation, the court GRANTS Clair-

mont Lodge's motion to dismiss plaintiff's ss 1981 claim.

Similarly, plaintiff is unable to state a claim for discrimin-

ation under 42 U.S.C. ss 1982 and 42 U.S.C. ss 3601, :

the Fair Housing Act. Section 1982 states: "All citizens

of the United States shall have the same right, in every

State and

_ {end of page ninteen}

| Territory, as is enjoyed by white citizens thereof to inhe-

rit, purchase, lease, sell, hold, and convey real and per-

sonal property." 42 U.S.C. ss 1982 (1994). As Judge

Thrash recently noted in Farrior v. H.J. Russell & Co.,

45 F.Supp.2d 1358, 1367 (N.D. Ga. 1999) "unlike 42

USC ss 1983 which requires state action, Section 1982

also applies to private actors." In addition, Judge Thras-

her observed, "Section 1982 is also unlike Section 1983

in the relatively few cases discussing it's application." Id.

Cf. Jackson v. Okaloosa County, 21 F.3d 1531, 1538-

41 (11th Cir. 1994) ("the full scope of ss 1982 has nev-

er been made clear").

While the full scope of ss 1982 may have never "been

made Clear," it is apparent that there are similarities bet-

ween a claim of discrimination under the Fair Housing

Act and under ss 1982. See id. at 1543. See also Far-

rior, 45 F.Supp. 2d at 1367. The only difference betw-

een the two claims is that, under ss 1982, a plaintiff

must allege that some intentional discrimination took

place." Jackson, 21 F3d 1543. Under the Fair Housing

Act, unlike ss 1981 and ss 1982, however, a plaintiff is

not required to produce evidence of direct discrimina-

tion, but may show that the defendants’ action created a

significant discriminatory effect." Id. See also

{end of page twenty)

rh ee ee

Evans v. Tubbe, 657 F.2d 661, 663 n. 3 (Sth Cir 1981):

U.S. v. Mitchell, 580 F.2d 789, 791 (Sth Cir. 1978).

As ss 1982 requires proof of intentional Seediabisiitin,

any claims against Clairmont Lodgearising under this sta-

tute dismissed for the same reasons that any ss 1981 cl-

aims are dismissed.Accordingly the Court GRANTS

Clairmont Lodge's motion to dismiss plaintiff's ss 1982

claims.

Turning to plaintiff's Fair Housing Act claim, plaintiff

alleges that "Clairmont Lodge refused to rent to plaintiff

for the quoted rate even though the quoted rate relied

on by plaintiff in deciding to continue residing at the

Clairmont Lodge. . . . [plaintiff alleges that Clairmont

Lodge in refusing to rent to plaintiff for the quoted rate

commit rate fraud against plaintiff in violation of 42 US

CA ss 3601." (Am. Compl. [11] at P.5S) In order to sur-

vive a 12(b)(6) motion to dismiss, plaintiff must state a

prima facie case of discrimination under the Fair Hous-

ing Act. See Farrior, 45 F.Supp. 2d at 1367. "A plain-

35 .

Act. The Court notes that the disparate impact theory

of recovery is much more difficult to establish than the

‘umiaameee method. See Pfaff v. U.S. Dept. of

HUD, 88 F.3d 739, 747 n.3 (9th Cir. 1996); Moore v.

Hughes Helicopters, 708 F.2d 475, 482 (9th Cir 1983).

Most courts that have addressed this issue have held

that the disparate impact analysis of Title VII is the same

analysis to be utilized under the Fair Housing Act. See

Harris v. Itahaki, 183 F3d 1043, 1051, 99th Cir. 19

99); Larkin v. Michigan Dept. of Soc. Servs., 89 F.3d

285, 289 (6th Cir 1997); Bangerter v. Orem City Corp.,

46 f.3d 1491, 1501 (10th Cir 1995); Doe v. City of

Butler.,

{end of page twenty-two}

892 F.2d 315, 323 (3d Cir 1989); Potomac Group

Home Corp. v. Montgomery County, 823 F.Supp.

683, 693 E.D. Pa. 1992), aff'd 995 F.2d 217 (3d Cir

1993). Although the Eleventh Circuit has not expressly

held that a disparate impact claim under the Fair Hous-

ing Act is analyzed in the smae manner as the compara-

dle Title VII claim, the Eleventh Circuit has, on several

occasions, applied Title VII framework to a Fair Hous-

ing Claim. See Secretary, U.S. Dept. of HUD ex rel.

Herron v. Black, 908 F.2d 864, 870 (11th Cir 1990)

(applying Title VII McDonnell Douglas burden shifting

analysis to Fair Housing Act claim); United States v.

~age

pe:

‘3

Marengo County Comm'n, 731 F.2d 1546, 1559 n. 20

_ (11th Cir 1984) (comparing Fair Housing Act to Title

| VII); EEoc v. Miss College, 626 F2d 477, 482 (Sth Cir.

1980) (noting "strong similarities between the language,

design, and purpose of Title VII and the Fair Housing

Act"). see intindiens v. Mainlands section 1&2 Civ-

ic Ass'n, 3 F3d 1472,1476 n. 6 (11th Cir 1993)(noting

Prositity of utilizing McDonnell Douglas burden shifting

analysis for Fair Housing Act claim). Accordingly, the

court |

{end of page twenty-three}

will utilize the Title VII disparate impact nframe work to

discuss plaintiff's Fair Housing disparate impact claim.

"In a Title Vilrace discrimination disparate impact

case, the plaintiff carries the prima facie burden of dem-

onstrating to a court that a particular employment prac-

tice disproportionately burdens one racial group over

another." In re Employment Discrimination Litigation,

198 F.3d 1305, 1321 (11th Cir. 1999). "A cause of ac-

tion based upon disparate impact arises where facially

neutral rules or policies are applied in a way that affects

the protected class differently from other groups." Bry-

ant Woods Inn, Inc. v. Howard County, 911 F.Supp.

918,939 (D Md. 1996). See also Bangerter, 46 F.3d at

1501 ("A disparate impact analysis examines a facially

neutral policy or practice, such as a hiring test or zoning

law, for its differential impact or effect on a particular

group."). "Indeed, it is the disparity between a single po-

licy's different effects on different groups which form the

basis of the cause of Action. Thus, where only one gr-

oup or class of persons is affected by a particular deci-

sion, there is no disparity in treatment between groups

and no ' disparate impact." Id. Accordingly, there are

two elements to a plaintiff's prima facie claim of dispar-

ate impact. These are; "(1) the occurrence of certain out-

wardly neutral practices, and

{end of page twenty-four}

(2) a significantly adverse or disproportionate impact on

persons of a particular type produced by the defendant's

facially neutral acts or practices." Gamble v. City of Es-

condido, 104 F.3d 300, 306 (9th Cir 1997).

Although it is clear in the instant case that defendant's

rental policy has a direct effect on all tenants’ rent, plain-

tiff has not alleged that there is any disparate impact on

blacks who are renting or would like to rent rooms at

the Claimont Lodge. Plaintiff has not alleged that becau-

se of the rate hike, blacks are unable to rent housing in

the Clairmont Lodge, nor has he alleged any statistical

evidence demonstrating that the percentage of blacks

who could not afford to live in the Clairmont Lodge aft-

er the rate increase is larger than the percentage of whi-

tes who were similarly priced out of the Lodge.s

8 It is clear that 100% of minority tenants and 100%

of non-minority tenants are affected by the rent increase.

Plaintiff has merely alleged in his second affidavit that

there are more blacks and minorities who live at the Clair-

mont Lodge than whites. (PI.'s Second Aff. [2] at P. ii.)

"A Prima Facie case is established only if challenged hou-

sing practice had a significant disproportionate impact on

the minorities in the total group to which it was applied."

Williams v. 5300 Columbia Pike Corp., 891 F.Supp. 1169,

1178 (E.D. Va. 1995). In this case, the rent increase had

precisely the same effect on rent for all individuals ren-

ting, as no individuals were spared the rent hike.

{end of page twenty-five}

As the fourth Circuit has explained, an adverse impact

"may take one or two forms: "(1) a facially neutral deci-

sion may have ‘a greater adverse impact on one race

than another,’ or (2) it may ‘perpetuate . . . segregation

and thereby prevent . . . interracial association [| in the

entire community involved]."" Edwards v. Johnston Cou-

nty Health Department., 885 F.2d 1215, 1223 (4th Cir

1989) (quoting Betsey v. Turtle Creek Assoc., 736 F.

2d 983, 987 n. 3 (4th Cir 1984). In this case plaintiff

has not demonstrated the impact that this rate hike has

had on the availability of lodging for minorities in the

Clairmont Lodge, as the alleged impact on all races we-

re the same--everyone experienced a rate increase. See

Bryant Woods Inn, Inc., 911 F.Supp. at 940. Cf. Rob-

inson v. City of Friendwood, 890 F.Supp. 616, 622 (S.

D. Tex 1995)(concluding that plaintiff failed to state a

prima facie claim of disparate impact as "[t]he disputed

zoning ordinance, requiring a twenty-five-foot setback

from the front property line of all structuresfor residen-

tial use in the city, is neutral on its face and applies gene-

rally to all residences of the city"). Accordingly, plaintiff's

allegations are insufficient to state a claim under the Fair

Housing Act.9 But cf. Betsey v. Turtle

9 Otherwise, any landlord that leases to a majority

non-white tenant group would be subject to suit

under the fair Housing Act any time he raised the rent,

even if the rent increase was an across the board increse

affecting blacks and whites equally. See Maki v. Laakko,

No. 93-Cv-74907-DT, 1994 WL 903893, at *3 (E.D.

Mich. July 22, 1994).

{end page twenty-six}

Creek Assoc., 736 F.2d 983, 987 (4th Cir 1984) (con-

cluding that plaintiff stated prima facie case of housing

discrimination through disparate impact method by pre-

senting statistics demonstrating that neutral "all-adult

conversion program" resulted in the eviction of 74.9 %_

of non-whites, while only 26.4% of whites were evicted).

Moreover, plaintiff has offered no allegation that supp-

orts the inference that Clairmont Lodge actually intend-

ed to discriminate. "[A] showing of discriminatory intent

under disparate impact requires the the plaintiff give 'so-

me indication . .. which might be suggestive rather than

conclusive . . . of discriminatory intent."" Cruz v. town

of Cicero, N. 99-C-3286, 1999 WL 560989 (N.D. Ill.

July 28, 1999) (quoting Phillips v. Hunter Trails Comm-

unity Ass'n, 685 F.2d 184, 190 (7th Cir 1982)). As dis-

cussed supra, plaintiff has failed to properly allege that,

by increasing the rent, Clairmont Lodge intended to dis-

criminate against blacks or minorities. Hence, the Court

GRANT Clairmont Lodge's motion to dismiss plaintiff's

Fair Housing Claim.

C. United States Department of Housing. . . .

The United States Department of Housing and Urban

Developement (hereinafter "HUD"), contends that this

court lack jurisdiction over plaintiff's claims. (HUD's

Motion to Dismiss [18] at 2.) Although plaintiff does not

name HUD specifically in the body of his complaint, he

claims that all defendants violated four statutes: 42 USC

ss 1981, 1982, 1985, and 3601. (Am. Compl. [11] at

P.2) Plaintiff does not allege that the United States has

waived its sovereign immunity as to these four statutes.

Although this failure does not automatically invalidate

plaintiff's claims against HUD, the court concludes that

the United States has not consented to suit under the

four statutes, and, as such, HUD is entitled to sovereign

immunity as to plaintiff's claims.

"An action is one against the United States as a sover-

eign where the judgement sought is to be satisfied from

monies of the federal Treasury, or where the judgement

interfers with public administration, or where the judge-

ment's effect is to compel or restrain the goverment's ac-

tions." Panola Land Buyers Ass'n v. Shuman, 762 F.2d

1550, 1555 (11th Cir. 1985). The United States is imm-

une from suit unless there has been an unequivocal wai-

ver of immunity. See Daniel v. U. s., 891 F. Supp. 600,

{end of page twenty-eight}

603 (N.D. Ga. 1995) (Hull, J.) (citing United States v.

Nordic Village, Inc., 503 U.S. 30, 32 (1992); United

States v. Sherwood, 312 U.S. 584, 586 (1941)). This

waiver of sovereign immunity is a prerequisite to subject

matter jurisdiction. See id. (citing Sherwood, 312 U.S.

at 586). In the instant case, plaintiff seeks actual monet-

ary damages in the amount of $95,000.00 from HUD

and $10,000 in additional punitive damages. Com. at 5.)

It is clear that the United States has not waived its sov-

ereign immunity as to claims for monetary damages un-

der ss 1981 and ss 1982. it is well established in this cir-

cuit that the United States has not waived its sovereign

immunity to suit under the provision of the civil rights sta-

tutes.” United States v. Timmons, 672 F.2d 1373,

1380 (11th Cir 19820 (concluding that claims based on

violations of sections 1981 and 1982 of the Civil Rights

act are barred by sovereign immunity). See also Bernard

v. Calejo, 17 F.Supp.2d 1311, 1314 (S.D. Fla. (1998).

Likewise, plaintiff's ss 1985 claim is barred by sover-

eign immunity. See Unimex, Inc. v. United States Dept.

of HUD, 594 F.2d 1061, 1061-62 (Sth Cir. 1979). In

addition, plaintiff's claims under the fair Housing Act, 42

U.S.C. ss 3701, are also barred by sovereign immunity.

{end of page twenty-nine}

See Timmons, 672 F.2d 1380; Unimex, 594 F.2d 1061.

Accord McIntosh v. United States, No. 96-5005, 19

96 WL 534147, at *1 (10th Cir Sept. 20, 1996); Da-

vis v. U.S. Dept. of HUD, No. 95-2586, 1996 WL 46

7650, at * (7th Cir. Aug. 14 1996); Parker v. Bancok-

lahoma Mortg. Co., No. 93-5253, 1994 WL 170789,

at *2 (10th Cir May 5, 1994); Furtick v. Medford Hou-

sing Auth., 963 F.Supp. 64, 71-72 (D.Mass.1997);

Weaver v.city of Topeka, no. 94-4224-SAC, 1995 WL

783628, at *5 (D. Kan. Dec. 12 1995). Accordingly,

HUD's motion to dimiss is GRANTED.

D. Chase Manhattan Bank10 and Chase Manhattan

Mortgage Company

Turning to the substance of the complaint as it related

to Chase Mortgage, plaintiff's allegations with regard to

Chase Mortgage are rambling. Construing them in the

most rational light possible, however, it appears that

plaintiff is alleging the following. Plaintiff alleges that on

June 8, 1999, he attempted to engage in real estate tran-

sactions. (Am Compl. [11] at P.3) Plaintiff alleges that

he met all qualifications to engage in real estate transac-

tions, that "defendants"

10 Chase Manhattan Bank is not named in plaintiff's

Amended Complaint and, as such, is not a defendant in

instant lawsuit. (see Am. Compl. [11] at 1.)

Accordingly, Chase Manhattan Bank's motion to dismiss

is GRANTED.

{end of page thirty)

refused to do business with him, that "defendants" conti-

nue to do business with applicants with similar qualifica-

tions as plaintiff, and that the property which plaintiff

was attempting to purchase "remained available for sale.

" (id) Moreover, plaintiff alleges that "defendants" adver-

tise a home loan available at 1% down [and] possible

%5.5 interest" but "refused to render such to plaintiff."

(Id. at P.4.) Further, plaintiff alleges that "defendants"

"relayed a different rate than that relayed to the general

public or prospective white homebuyers.” (Id.) Plaintiff

also claims that "the defendants intentions be to inflict in-

tra-racial discrimination upon the olaintiff by conspiracy.”

(Id. at P.2) Plaintiff brings this claim under "42 USCA

ss 1981, 1982 & 1985S(c)" and Fair Housing Act. (Id.)

Liberally construed, it seems as if plaintiff is attempting

to allege a claim of discrimination in lending in violation

of the Fair Housing Act. See Ivey v. U.S., 873 F.Supp.

663, 671 (N.D. Ga. 1995). Section 3605 of the Fair

Housing Act Section 3605(a) provides:

It shall be unlawful for any person or other entity who-

se business includes engaging in residential real estate-

related transactions to discriminate against any person

in making available such a transaction, or in the terms

or conditions of such transaction, because of race, color.

religion, sex, handicap, familial status, or national origin.

{end of page thirty-one}

42 USC ss 3605(a) (West 2000)emphasis added).

As the plain words of the statute makes clear, a plain-

tiff must prove a racial motivation for the adverse action

in question to prevail and must likewise allege a racial

motivation to state an actionable claim. See Sofarelli v.

Pinellas County, 931 F.2d 718, 722-23 (11th Cirl991)

(dismissing Fair Housing Act Claim against sheriff becau-

se no allegations of racial animus but permitting claim ag-

ainst plaintiff's neihbors because plaintiff properly alleged

facts sufficient to support a reasonable inference of disc-

rimination). The elements of a prima facie casei! under

the fair housing act are that: (1) the plaintiff is a member

of a racial minority; (2) the plaintiff applied for and was

qualified to purchase the house in question; (3) the defen-

dant rejected the plaintiff; and (4) the house remained av-

ailable thereafter.

11 Were this case proceeding to summary judgement, the

three-part burden of proof test developed in McDonnell

Douglas would govern the case. See Secretary, U.S.

Dept. of HUD-Herron v. Blackwell, 908 F.2d 864, 870

(1 1th Cir 1990). Under that test, "the plaintiff has the bur-

den of adducing evidence to support a prima facie case

of discrimination. Second, if the plaintiff sufficiently est-

ablishes a prima facie case, the burden shifts to the def-

endant to articulate some ligitimate, nondiscriminatory

reason’ for it action. Third, if the defendant satisfies this

burden, the plaintiff has opportunity to produce evidence

that that the legitimate reasons asserted by the defendant

are in fact mere pretext.” Id.

{end of page thirty-two}

See Secretary, U.S, Dept. of HUD ex rel. Herron v.

- 50

Blackwell, 908 F.2d 864, 870 (11th Cir 1990).

Although plaintiff alleges that he is black and that the

house remained available at some point after the events

in question, his allegation of the remaining elements are

unclear. As to the third element--that "defendants" rejec-

ted the plaintiff--plaintiff alleges that "defendants refused

to do business with him." (Compl.[1] at P. 3.) The court

is not clear as to what defendant means by this allegation.

The Court assumes that this third element requires that

the defendant either turn down the plaintiff's application

or refused to receive a fully completed application. Yet,

in attachments filed by plaintiff, he seems to suggest that

he never even made application for a loan because defen-

dant Chase Mortgage required, as part of an application,

the applicant's past income tax returns to confirm his clai-

med income and plaintiff, feeling such a request to be un-

reasonable, refused to provide such requested paper-

work.12 See Stmt. of Legal Issues [2] at

12 In another afffidavit, however, plaintiff indicates that

he was called back to the bank to complete his loan app-

lication, after someone affiliated with one of the defend-

ants had earlier expressed concern about plaintiff's ability

to handle the mortgage payments, given his current Chap-

ter 13 bankruptcy status.(PI.'s Fifth Aff. [2] at P. 7.)

{end of page thirty-three}

P.4; Pl.’s Fourth Aff. [2] at 2-3.) If the court inference

is correct, then plaintiff never even applied for a loan

and consequently could not have been rejected by def-

endant Chase Mortgage Hence, as plaintiff does not ev-

en allege that he applied for a loan through Chase Mort-

gage and was declined, his complaint omits allegations

sufficient to support this element.

Moreover, in paragraphs one through four of his com-

plaint, plaintiff does not specifically name Chase Mort-

gage; rather, he simply alleges that all "defendants" refu-

sed to do business with him. Without explaining the role

that each defendant played in depriving plaintiff of his

rights, plaintiff has not given "sufficient detail" to defen-

dants or the Court as to the context of his claims against

each defendant.13 See Malone v. Chambers County Bd.

of Comm'rs, 875 F.Supp. 773, 790-91 (M.D. Ala.

1994) (finding plaintiff's complaint "failed to adequate

allege with requisite specificity the facts which amount

to a violation of his . . . rights by individual defendants").

See also Coon v. Ga. Pac. Corp., 829 F.2d 1563,

1569 (11th Cir 1987) (citing Uptown People's Comm-

unity Health Servs. v. Bd. of Comm'rs of Cook County,

647 F.2d 727, 739 (7th Cir

13 It is doubtful that Judge hunt a federal judge, was in

the business of offering financing for potential homebuyers

{end of page thirty-four}

1981))(count in complaint to indefinite; "[w] hile its true

that 'notice pleading’ is an integral part of the federal rul-

es governing pleading, it still is necessary that something

be stated that apprises a defendant of the substance of

the allegation"); Ogletree v. McNamara, 449 F.2d 93,

98-99(6th Cir. 1971)("[s]omething more than a conclu-

sory allegation of systematic racial discrimination is req-

uired")).

Most Importantly, plaintiff must allege that defendants

took adverse action against him with regard to a loan

application because of his race. See 42 USC ss 3605.

While his complaint contains some conclusory language

suggesting "intra-racial discrimination," (Compl. [1] at P.

2), plaintiff does not specifically allege that defendants

_ took whatever action it took against plaintiff because of

the latter's race or, more precisely, that defendant Cha-

se Mortgage treated white applicants better or different-

ly than it treated defendant. Inded, in his response to

defendant Chase Mortgage's motion to dismiss, plaintiff

makes clear his belief that defendant was not receptive

to plaintiff's desire for a loan because plaintiff did not or

could not provide income tax returns for the last two

years. (PI.'s Resp. Br. [26] at 4-5)14 While

14 In his fourth affidavit, plaintiff suggest that Chase

Mortgage did was not receptive to plaintiff's loan

tend of page thirty-five}

plaintiff is emphatic in his disagreement with defendant

regarding the need for such returns or the appropriate-

ness of defendant's request, plaintiff has, in no way, sug

gested that this was a requirement that defendant aimed

only at black mortgage applicants. Indeed, as every

homeowner in the subdivision where plaintiff 's desired

home was located was also black and as every one of

these black homeowners presumably had to go through

the same application process with defendant Chase

Mortgage, it is difficult to discern how plaintiff could

conceivably make out a case of racial discrimination by

defendant Chase Mortgage, either on a discriminatory

intent or discriminatory impact theory.

Moreover, plaintiff, in his fourth affidavit, alleges that

Ms. Sonjia Williams referred to plaintiff "as a nigger."

(Id.)

In this affidavit, plaintiff does not discuss for whom

Ms. Sonjia Williams worked at the time that she made

this allegedly inflammatory statement, however.17 Acc-

ordingly, plaintiff :

inquiry because plaintiff is a chapter 13 "bankrupt debtor.

"(PI.'s Fourth Affidavit [2] at 2-3.) As discussed supra,

however, this allegation, standing alone, is insufficient to

state a claim under the fair housing act as plaintiff has

not alleged that any concerns by defendant about plain-

tiff's financial stability reflects racial animus.

17 It appears that Ms. Williams actually worked for Re-

surgence Marketing & Real Estate, Inc., and not chase

{end of page thirty-six}

cannot attribute this racial charge statement to any emp-

loyee of Chase mortgage for purposes of alleging direct

evidence of discrimination. Hence, plaintiff cannot state

a claim against Chase Mortgage under the Fair Housing

Act based on these conclusory allegations.18

Finally, in the complaint, plaintiff alleges that Chase

Mortgage refused to finance his purchase of a home

due to the fact that " Plaintiff having file prior suit to this

one under the Federal Fair Housing Act." (Am Compl.

at P.2.) As discussed supra, the previous federal laws-

uits were not filed against Chase Mortgage, and, as a

practical matter, Chase Mortgage has no interest in ret-

aliating against plaintiff for filing prior lawsuits. Accord-

ingly, this allegation cannot support a claim under the

civil rights statutes or the Fair Housing Act. Moreover,

plaintiff's contention that "defendants' intentions are hea-

rd in murmerings and by disparate impact immediately

outside of plaintiff's apartment"

Mortgage. PI.'s Resp. to Mand. Disclosures [2] at Ex.

C-9.)

18 Likewise, plaintiff has not alleged sufficient facts to

support an anologous claim under 42 USC ss 1981, 1982

and 1985. See GJR Invst. 132 F3d at 1368; Oladeinede v.

City of Birmingham, 963 F2d 1481, 1485 (11th Cir 1992);

Garg, 899 F.Supp. at 967. see also discussion supra at 30-35.

{end page thirty-seven of forty-four}

likewise cannot support a claim under any of the four

statutes at issue in the instant case. Hence, for all the ab-

ove reasons, Chase Mortgage's motion to dismiss for

failure to state a claim is well-grounded.

Given the garbled and unclear nature of plaintiff's alle-

gations and in deference to plaintiff's pro se status, how-

ever, the court will base its dismissal on plaintiff's failure

to properly serve defendant Chase Mortgage. See dis-

cussion supra at 6-11. Such a dismissal is without prej-

udice, which means that plaintiff will have the opportun-

ity to redraft a complairit that sufficiently pleads all nec-

essary allegations and to properly serve that complaint

on defendant chase Mortgage.19 See Fed. Rul. Civ.

Proc.4(m) ("If service of the summons and complaint is

not made upon the defendants within 120 days after the

filing of the complaint, the court, upon motion

19 That plaintiff may be able to file a new complaint

does not mean that he should do so. he has already incur-

red costs to the prevailing parties, pursuant to 28 USC ss

1920, if these parties choose to file a bill for these cost.

If plaintiff refiles against Chase Mortgage and loses again,

he will incur further costs. In addition, plaintiff's comp!-

aint against Chase Mortgage appears to border on the

frivolous. If plaintiff's only grievance is that chase require

him to submit income tax returns, that request does not

Suggest racial animus or a disparate racial impact. If plain-

tiff refiles, relying on that theory the court will consider

the imposition of attorney's fee against plaintiff for the

filing os a frivolous complaint.

{end of page thirty-eight of forty-four}

.. . Shall dismiss the action without prejudice as to that

defendant.") and Fed. Rul. 12(b)(5) (permitting court to

dismiss action for insufficiency of service of process").

See also Hunt v. Department of Air Force, 29 F.3d 583

(11th Cir 1994)(affirming district court's dimissal with-

out prejudice for plaintiff's failure to effectuate service

of process upon defendant). Accordingly, defendant

Chase Mortgage's Motion to Dismiss on service of pro-

cess Grounds is GRANTED; its motion to dismiss for

failure to state a claim is DENIED WITHOUT PREJ-

UDICE.

E. Forrest Homes and Resurgence Marketing and

Real Estate

For some of the reasons discussed supra, plaintiff's

claims against Forrest and Resurgence must fail as they

contain nothing other than conclusory allegations of rac-

ial discrimination. More importantly, although plaintiff all-

eges in his complaint that he was qualified to purchase

the home from Forrest through Resurgence, the docum-

ents plaintiff submitted in support of his complaint clear-

ly demonstrate that he was not qualified to purchase the

home. (PI.'s Resp. to Mand. Disclosures [2] at Ex. C-

1.) Indeed, one of the qualifications required to purch-

ase a home is the ability to pay for the home. (See id.;

Forrest's Mot. to Dismiss [21] at

{end of page thirty-nine of fourty-four} :

Ex. A.) cf Williams v. 5300 Columbia Pike Corp., No.

95-2964,1996 WL 690064, at *3 (4th Cir Dec. 3, 19

DAA RR EE RNA eee Ae te

96) (plaintiff failed to establish claim under the fair hous-

ee ee

ing act as a matter of law because plaintiff failed to de-

a eee |

monstrate that she was able to pay the purchase price

or obtain sufficient financing to purchase). Plaintiff's

complaint and related pleading make clear that plaintiff

did not have the requisite purchase price and did not ac-

quire financing sufficient to purchase the home.20 (See

PI.'s Fourth affidavit at 2-3; Am Compl. [1 1] at P.4.)

without the sufficient funds to purchase the home, plain-

tiff cannot demonstrate that he "met all relevant qualifi-

cation" to purchase the home. See Hickson, 805 F.

Supp. at 1572.

As the fourth Circuit has noted, "[T]he Fair Housing

Act is not so expansive that it would require sales or

rentals of residences to those who concede that they

are unable to pay the price faced by all other buyers or

leasers." Williams, 1996 WL

20 Plaintiff, in his fourth affidavit, suggest that he had

the proper income to obtain financing for the purchase of

the home, but because of the lenders' insistence on utiliz-

ing his income tax returns, he was not able to obtain a

loan. (PI.'s Fourth Aff. [2] at P.4) This fact, however,

does not change the fact that plaintiff was not qualified to

purchase the home, as he did not obtain financing, a sta-

ted condition precedent to Forrest's duty to perform under

the sales contract. (See PI.'s Resp. to Mand. Disclosures

[2] at Ex. C-1; Forrest Mot. to Dismiss [21] at Ex. A.)

tend of page fourty of fourty-four}

690064, at *3. In the instant case, plaintiff concedes

that he was unable to obtain financing and, as such, cou- |

Id not tender the purchase price for the house. Accord- |

ingly, plaintiff's claims against Forrest and Resurgence2! ,

under the Fair Housing Act must be dismissed. Similarly,

plaintiff has not sufficiently alleged claim under 42 U.S.

C. ss 1981, 1982, and 1985, and those claims must be

dismissed as well.22

F. Judge Hunt

Judge Hunt claims that he is shielded from liability on

grounds of judicial immunity. Indeed, it has long been

established that members of the judiciary are entitled to

absolute in civil suits against them for monetary

21 Although plaintiffs allegation in his fourth affidavit

that a Resurgence employee, Ms. Williams, called him a

nigger, could support an inference of discrimination in the

appropriate case, plaintiff's claim fails because he has not

properly alleged facts to support his prima facie case of

housing discrimination, as his allegations, coupled with the

materials submitted along with his complaint, conclusively

demonstrate that plaintiff was not qualified to purchase

the home due to his inability to obtain financing. Thus,

even assuming that Ms. Williams harbored racial animus

against plaintiff, her subjective feelings are beside the po-

int as plaintiff had no money to pay for the house. (Of

course, as noted supra, it is difficult for plaintiff to make

out a claim of racial dicrimination in the instant case,

where every purchaser of a home in the Rivercrest sub

division was black.)

22 In addition, plaintiff has not stated a valid retaliation

claim for the reasons discussed supra at 17-1937

{end page forty-one of fourty-four}

damages.23 See Pierson v. Ray, 386 U.S. 547 (1967).

See also Dorman v. Simpson, 893 F.Supp. 1073, 1080

(N.D. Ga. 1995)(Hull, J.0. In Stump v. Sparkman, 435

U.S. 349, 362 (1978), the supreme court adopted a

two-part test to determine whether a judge enjoys the

absolute immunity of the doctrine of judicial immunity.

First, the court must look to whether the judge dealt

with the plaintiff in judicial capacity. Id. Second the

court must decide if the judge acted in clear absence of

all jurisdiction." Id. at 357. See also Harris v. Deveaux,

780 F.2d 911 (11th Cir 1986).

To determine whether a judge's conduct constituted a

judicial act, the court must focus on whether: |

(10 the precise act complained of . . . is a normal jud-

icial function; (20 the events involved occurred in the ju-

dge's chambers; (3) the controversy centered around a |

case pending before the judge; and (4) the confrontation

arose directly and immediately out of a visit to the judge

in his official capacity.

Harris, 780 F.2d at 914 (citing Harper v. Merckle, 638

F.2d 848 (Sth Cir 1981)). In this case, all of the factors

are present. Judge Hunt's pertinent conduct, failing to

appoint an attorney to represent plaintiff in case number

1:98-CV-2901 -WBH, was a

23 In the instant case, plaintiff seeks $95,000 in actual

damages and $10,000 in punitive damages from Judge

Hunt. (Am Compl. [11] at 5.) Plaintiff does not seek in-

junctive relief against Judge Hunt.

{end of page forty-two of fourty-four

normal judicial function in a case pending before the ju-

dge, occurred in orders issued by the judge, and arose

from dealings with the judge in his official Capacity. See

Rolleston v. Eldridge, 848 F.2d 163 (11th Cir 1988)

As such, Judge Hunt's actions meet the first part of the

test for judicial immunity.

The second prong of the test explores whether the ju-

dge acted in the "clear absence of all jurisdiction" The

ruling by judge Hunt was in response to plaintiff's motion

to appoint counsel. (Am. Compl. at P.6.) The applicab-

ility of judicial immunity does not depend on the determ-

ination of nice question of jurisdiction." Id. (quoting

Williams v. Sepe, 487 F.2d 913, 914 (5th Cir 1973)).

Since Judge Hunt simply responded to a motion filed in

his court, he did not act in the "clear absence of jurisdic-

tion." As Judge Hunt is entitle to full judicial immunity

under the two-part test of Stump v. Sparkman, plaintiff's

claims for damages against him must be dismissed.

CONCLUSION

For the foregoing reasons, defendant Clairmont Lod-

ge's Motion to Dismiss [12] is GRANTED , defendant

Department of HUD's Motion to Dismiss [18] is GRA-

NTED, defendant Chase Manhattan Bank and Chase

Manhattan Mortgage Corporation's Motion to Dismiss

[20] is GRANTED

{end of page fourty-three of fourty-four}

WITHOUT PREJUDICE, defendant Forrest Homes,

Inc.'s Motion to Dismiss [21] is GRANTED, defend-

ant Resurgence Marketing and Real Estate, Inc.'s Mot-

ion to Dismiss [22] is GRANTED, plaintiffs motion for

cost of personal service [28] id DENIED AS MOOT,

defendant Chase Manhattan Bank and Chase Manhat-

tan Mortgage Corporation's Motion to Extend Time to

AOE ame MER cmnstey em yTO

Respond to Plaintiff's Motion for costs [29] is DENIED

AS MOOT, and defendant Willis B. Hunt's Motion to

Dismiss [40] is GRANTED.

The CLERK is directed to CLOSE this case.

SO ORDERED, this 27 day of July, 2000.

signed:

JULIE E. CARNES

U.S. DISTRICT JUDGE

{end of page fourty-four of fourty-four}

IN THE UNITED STATES COURT OF APPEALS

For the Eleventh Circuit

No. 00-14275

District Court Docket No.

99-12218-CV-JEC-1

Thomas G. Dean

Plaintiff-Appellant

Versus

The Chase Manhattan Bank,

Forrest Homes,

Resurgence Marketing & Real Estate Inc.,

U.S. Department of Housing & Urban Developement,

Willis B. Hunt, Clairmont Lodge,

Defendants-Appellees.

Appeal from the United States District Court

for the Northern District of Georgia

JUDGEMENT

It is hereby ordered, adjudge, and decreed that the

attached opinion, included herein by reference, is enter-

ed as the judgement-of this court. :

Entered: June 6, 2001

For the Court: Thomas K. Kahn, Clerk

By: McCombs, Elain

ISSUE AS MANDATE

JUL 30 2001

U.S. COURT OF APPEALS

ATLANTA, GA.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.