Opinion
Civil Action No. 7:00-CV-220-R.
July 30, 2001.
MEMORANDUM OPINION AND ORDER
Now before the Court is Defendants' Motion to Dismiss for Failure to State a Claim ("Defendants' Motion"), filed January 22, 2001. Also before the Court is Defendant Joe Murry's Motion to Dismiss for Failure to State a Claim ("Murry's Motion"), filed February 13, 2001. Because both motions are substantially the same, the Court will address both in this single opinion. For the reasons stated below, the Defendants' Motion is GRANTED in part and DENIED in part. Further, Murry's Motion is GRANTED.
I. BACKGROUND FACTS
On November 6, 2000, the Plaintiff, Ricardo Cantu, filed his Complaint alleging three causes of action: that the Defendants violated his rights under (1) the Fair Housing Act (the "FHA"), (2) section 1981 of the Civil Rights Act (the "CRA") and (3) section 1982 of the CRA.
The following facts are taken from the allegations contained in Cantu's Complaint. Cantu's claims arise out of a series of events connected with the operation of the Nocona Hills Owner's Association ("NHOA"), a defendant to this action. Other defendants include Jack Amon, NHOA's President, Kelly Nelson, a member of the board of directors of NHOA, Garland Murry ("Garland") and Joe Murry ("Joe"). Cantu, who is Mexican-American, resides within the Nocona Hills development and also owns several additional lots within the development. On April 26, 1999, Cantu alleges that during a meeting of NHOA, Garland, acting as Chairman of NHOA's Agricultural Control Committee, referred to Cantu several times in a racially derogatory manner. Cantu claims that despite his complaints to Amon, Nelson and other directors of NHOA regarding Garland, nothing has been done to reprimand him.
Like most of the Complaint, the Plaintiff's explanation of this event is very difficult to understand. However, it appears that Cantu was not present when this took place. The Court takes this opportunity to point out that the Complaint is not of the quality or clarity that is typically expected of reasonably skilled attorneys. In the future, Cantu's counsel should take more care in drafting documents to be filed with the courts.
Roughly three weeks prior to this meeting, Garland's son, Joe, appeared at Cantu's back door and demanded to speak with some of Cantu's house guests regarding an undisclosed matter. When Cantu went to get his guests, Joe attempted to enter the house. When Cantu insisted that Joe wait outside, Joe began cursing and making obscene gestures at Cantu, even after Cantu slammed the door on Joe. Cantu does not allege that Joe made any racist statements during this encounter.
On September 25, 2000, Cantu came across Joe again when he was leaving a local supermarket. At this meeting, Joe allegedly threatened Cantu about Cantu's correspondence with NHOA's Board of Directors, in which Cantu complained about "certain matters."
Again, the Complaint is written in an extremely vague and choppy fashion, making it equally difficult for the Court to give a clear, succinct statement of the facts.
Then, on October 2, 2000, NHOA President Amon, called a public meeting for the purpose of dealing with two issues involving Cantu. The issues were whether Cantu was liable for certain maintenance fees on the various lots he owned and whether the restrictions contained in Cantu's deed prohibited him from drilling a water well. Cantu asserts that he was given no formal notice of this meeting and learned of it by chance. According to Cantu, the purpose of the meeting appeared to be an attempt to humiliate and embarrass him, and this was effected by the various defendants, complete with "cheering and jeering." Cantu further asserts that the meeting was a ruse with regard to the two stated issues to be addressed and, in fact, the meeting "was pointless" and its "sole purpose" was to torment him.
Finally, Cantu concludes his statement of facts with an anecdote about the selection of Joe as a candidate for NHOA's Board of Directors. Cantu explains that his wife was on the committee that reviews the resumes of potential candidates, but that Joe's resume was never submitted to this committee. When she asked how Joe could be a candidate when he never submitted a resume, she was told that his resume was submitted late and that his candidacy was approved by the chairperson of the selection committee, Ms. Mike Barsi. Cantu then alleges that Barsi, who is not a defendant to this action, is a "cronie" of the other defendants, and that she approved Joe's late submission "solely to spite and humiliate Plaintiff Ricardo Cantu, knowing full well that Joe Murry has been guilty of gross misconduct against" him. This string of events is put forth by Cantu as proof that his rights under the FHA and the CRA have been violated.
II. LEGAL ANALYSIS
A. Standard of Review
"A complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Piraino v. United States Postal Service, 69 F. Supp.2d 889, 894 (E.D. Tex. 1999) (quoting,Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). The relevant question is not whether the pleading party will prevail, but whether it is entitled to offer evidence to support its claims.See Cross Timbers Concerned Citizens v. Saginaw, 991 F. Supp. 563, 571 (N.D. Tex. 1997). Because of this high standard, "[t]he motion to dismiss for failure to state a claim is viewed with disfavor and is rarely granted." Kaiser Aluminum Chem Sales, Inc. v. Avondale Shipyards. Inc., 677 F.2d 1045, 1050 (5th Cir. 1982) (citation omitted).
In ruling on a 12(b)(6) motion the district court must accept the truth of the plaintiff's allegations or rely upon only those matters outside of the pleadings with respect to which there is no genuine issue of fact. See Espinoza v. Missouri Pacific Railroad Co., 754 F.2d 1247, 1249 (5th Cir. 1985). Moreover, the allegations set forth in the Complaint should be construed liberally in favor of the Plaintiff. See Kaiser Aluminum, 677 F.2d at 1050.
B. FHA Claim
In his first cause of action, Cantu claims that all of the Defendants violated his rights under the FHA. The stated purpose of the FHA is "to provide, within Constitutional limitations, for fair housing throughout the United States." 42 U.S.C.A. § 3601 (1994). Cantu has made his claims specifically under sections 3604(b) and (c), which make it unlawful:
(b) to discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection therewith, because of race . . ., or national origin. [And] (c) [t]o make, print, or publish, or cause to be made, printed, or published any notice, statement, or advertisement, with respect to the sale or rental of a dwelling that indicates any prefernece, limitation, or discrimination based on race . . ., or national origin, or an intention to make any such preference, limitation, or discrimination.42 U.S.C.A. § 3604.
Cantu has not alleged any facts in his Complaint which support a cause of action under section 3604(c), as he has not alleged that any of the Defendants printed or published anything, much less something that indicated an intent to discriminate. Thus, he has no cause of action under section 3604(c).
A plaintiff may establish a violation of the FHA through proof of discriminatory intent, or through proof of a significant discriminatory effect. Simms v. First Gibralter Bank, 83 F.3d 1546, 1555 (5th Cir. 1996) (citation omitted). Because Cantu has not alleged facts that could support a disparate impact claim, the Court will consider his claim to be based solely on disparate treatment. Texas v. Crest Asset Management, Inc., 85 F. Supp.2d 722, 728 (5th Cir. 2000) (holding that where a plaintiff fails to allege facts or argue in favor of a claim of disparate impact, the court will construe the claim to contain solely allegations of discriminatory intent).
1. Discriminatory Treatment Under § 3604
To establish a prima facie case of discrimination under section 3604, Cantu must present evidence that he is a member of a protected class and that he was discriminated against with regard to the sale or rental of a dwelling, or in the provision of services or facilities in connection therewith. 42 U.S.C.A. § 3604. Given the facts that Cantu has presented in support of his section 3604 claim, this test does not seem to fit with the present action. Cantu has not alleged that he was discriminated against with regard to the purchase of his dwelling, or that he was denied access to the facilities or common areas of the development. Further, he has not alleged that he was denied services to which he was entitled as an owner of a dwelling within the Nocona Hills development. In fact, the closest Cantu comes to alleging that he was discriminated against in the provision of services is his allegation that a NHOA homeowner's meeting was called to discuss whether he could drill a water well on his land and whether he owed maintenance fees for his undeveloped lots. However, there are problems with this allegation. First, Cantu admits in his Complaint that this meeting had no effect upon his rights as it was a "pointless" event, designed "with the sole purpose of humiliating and tormenting" him. Furthermore, Cantu has failed to clearly explain whether there was actually a negative outcome with regard to his rights as a result of this meeting. Finally, Cantu has not alleged that he was treated any differently than any other homeowner with regard to the water well issue. Thus, without presenting facts that show that he was discriminated against in the provision of services or facilities, Cantu cannot proceed under section 3604 of the FHA.
Indeed, the facts that Cantu has presented are more closely aligned with a claim under section 3617 of the FHA, which makes it unlawful to "coerce, intimidate, threaten or interfere with any person in the exercise or enjoyment of . . . any right granted or protected by section 3603, 3604, 3605, or 3606 of this title." 42 U.S.C.A. § 3617. However, Cantu has failed to raise a claim under this section.
The Court points out that it is a stretch to consider a discussion of whether a homeowner has the right to drill a well or must pay fees to be a discussion about the provision of services to such homeowner. It is more like a discussion about the homeowner's rights with respect to their land. The Court, thus, reinforces the fact that Cantu's claims simply do not fit under section 3604, and would be better suited to section 3617 of the FHA.
C. §§ 1981 and 1982
Section 1981 grants all people "the same right in every State and Territory to make and enforce contracts . . ." 42 U.S.C.A § 1981 (1994). Further, under section 1982, all citizens have equal rights "to inherit, purchase, lease, sell, hold, and convey real and personal property." 42 U.S.C.A. § 1982 (1994). Both sections arise out of section 1 of the CRA of 1866, and both have been held to reach "unofficial acts of private individuals." Puglisi v. Underhill Park Taxpayer Assoc., 947 F. Supp. 673, 683 (S.D.N.Y. 1996) (citations omitted). Finally, both sections require that the plaintiff prove purposeful discrimination. See id. at 699-700.
To establish a prima facie case under sections 1981 and 1982, a plaintiff must allege facts which, if true, show that: (1) he is a racial minority; (2) the defendants intended to discriminate against him on the basis of his race; and (3) the discrimination concerned activities addressed in sections 1981 or 1982. Id. at 700. Cantu has alleged facts which address all three elements of these claims in his Complaint. First, he has pled that he is Mexican-American, a racial minority. Second, he has alleged that all of the Defendants conspired to discriminate against him and harass him because of his race. Finally, the Defendants' alleged discrimination against Cantu adversely affects the rights protected by sections 1981 and 1982: his right to make and enforce contracts and his right to own and hold real property. Thus, Cantu's Complaint states a claim with regard to sections 1981 and 1982 of the CRA.
D. Joe Murry
Cantu has failed to allege facts which support any cause of action against Joe. The facts that Cantu pleads with regard to Joe are wholly devoid of evidence that Joe was acting with the intent to discriminate against Cantu because of his race. Indeed, it appears that Joe does not like Cantu, but nowhere in his Complaint does Cantu suggest that this is because of his race. The closest Cantu comes to pleading such a fact is in his vague description of Joe's threat to him outside a supermarket that Cantu should not complain to NHOA about "certain matters." If Cantu wishes to proceed against Joe, who is not a member of NHOA's Board of Directors, he must provide more direct support for the allegation that Joe's actions towards him were based on a desire to discriminate against him because of his race.
III. CONCLUSION
For the foregoing reasons, the Defendants' Motion is GRANTED in part and DENIED in part. Further, Murry's Motion is GRANTED. Cantu's FHA claim is DISMISSED WITHOUT PREJUDICE and Cantu is ordered to amend his Complaint within 30 days to include specific factual allegations that establish a violation of section 3604, or to make a claim under some other section of the FHA. Further, Defendant Joe Murry is DISMISSED WITHOUT PREJUDICE from the present suit and Cantu is ordered to amend his Complaint within 30 days to include specific factual allegations which could support the claim that Joe intentionally discriminated against him because of his race.
In the event that Cantu decides to amend his Complaint, he should be mindful of the Court's earlier admonitions regarding the shortcomings of his original Complaint.