Opinion
3:21-cv-947-JR (Lead) 3:21-cv-1439-JR (Trailing)[1]
03-15-2022
LARRY JOHNSON; MICHELLE HUME Plaintiffs v. GUARDIAN MANAGEMENT; KELLY PAINE; LISA SIMONSON, Defendants MICHELL HUME; LARRY JOHNSONS Plaintiffs, v. THOMAS BARRY BRENNEKE JUNIOR; GUARDIAN MANAGEMENT; GUARDIAN REAL ESTATE SERVIC; UPTOWN TOWER APARTMENTS; KELLY PAINE; LISA SIMONSON Defendants.
JOLIE A. RUSSO, UNITED STATES MAGISTRATE JUDGE
Pro se plaintiffs Larry Johnson and Michelle Hume filed these Fair Housing Act (“FHA”) actions against defendants Thomas Brenneke, Lisa Simonson, Kelly Paine, Guardian Management, Guardian Real Estate Services, and Uptown Tower Apartments. Defendants move to dismiss both actions. Defendants also move for a vexatious litigant order. For the reasons stated below, the motions to dismiss should be granted in part, the motion for a vexatious litigant order should be denied, and all other pending motions should be denied.
ALLEGATIONS
A. Case No. 3:21-cv-947-JR
Plaintiffs Larry Johnson and Michelle Hume are residents of the Uptown Tower Apartments in Portland, Oregon. First Amended Complaint (ECF 10) at ¶ 6. Plaintiffs allege they are “disabled senior citizen[s] with serious health conditions … which qualify as a ‘handicap' under the Fair Housing Act … [who] qualify for and receive financial assistance from the Medicaid Independent Choices Program.” Id. at ¶¶ 7, 8.
The Department of Housing and Urban Development (HUD) conducts yearly physical inspections of HUD financed housing through HUD's Real Estate Investment Center (REAC). Id. at ¶ 9. Plaintiffs allege during the fourth surge of Covid-19, when Portland was in the extreme risk of transmission category, defendant Uptown Manager Lisa Simonson “recklessly post[ed]pre-REAC 24-hour notice on pre-selected apartment doors in violation of HUD House Rules” and other rules. Id. at ¶¶ 11-13. Plaintiffs allege they made repeated requests to be provided with “reasonable accommodations” not to be inspected during the extreme risk period, but defendants denied the requests without reply or without conducting an adequate investigation as to whether the inspections complied with HUD and other rules. Id. at ¶ 13.
Plaintiffs allege Simonson posted a second round of 24-hour notices on all apartment doors for pre-REAC inspections on May 11, 2021, and that defendants refused to make “reasonable accommodations” regarding plaintiffs' request. Id. at ¶ 14. Plaintiffs allege that for almost a month defendants Simonson and Guardian Manager Kelly Pain “swept through these Uptown Tower Apartments without any concern for the health of elderly and disabled tenants in an attempt to repair the long-neglected apartment building and its living areas for a two-day REAC inspection scheduled for June 2nd and 3rd, 2021.” Id. at ¶ 15.
Plaintiffs further allege the REAC inspection “may have been part of scheme to conduct a fraudulent inspection to benefit the sole owner of Uptown Tower Apartments, Thomas Barry Brenneke Jr.” Id. at ¶ 16.
Plaintiffs assert a claim for discrimination under the FHA, 42 U.S.C. § 3604(f) and seek equitable relief allowing them to “age in place peacefully and safely in [their] homes without threat of reprimands, retaliation, evictions, or of serious life-threatening diseases from unwelcome intrusions by management, uninvited guests, and strangers into [their] living spaces.” Id. at p. 5-6.
Defendants move to dismiss this complaint asserting plaintiffs fail to allege a reasonable accommodation request and fail to identify any disability related to their claim.
B. Case No. 3:21-cv-1439-JR
Plaintiffs allege the Guardian defendants have information that plaintiffs are persons with known and identifiable disabilities and handicaps as defined by the FHA. 3:21-cv-1439-JR Complaint (ECF 1) at ¶ 7. Plaintiffs further allege they have made repeated requests for accommodation which were denied or ignored and resulted in retaliation after plaintiffs filed complaints. Id.
Plaintiffs specifically allege in support of alleged discrimination under the FHA:
Defendants Brenneke et al. have traditionally utilized self-serving non-HUD "unwritten rules" to mismanage the highly tax subsidized Uptown Tower Apartments for arbitrary and capricious control of its elderly and disabled tenants through fear and intimidation by keyed locks and hostile environment harassment and retaliation practices. The "unwritten rules" are not in compliance with local, city, county, state code, statutory and case law and/or federal statutory and case laws or in compliance with the Federal HUD Statutory and Code Rules, Regulations and Guidelines while in the course of corporate business accepting millions of
dollars in tax payer funding and subsidies with little if any accountability or responsibility for their discriminatory violations and /or unlawful actions under the cover of multiple limited Lability corporations and frivolous excuses and defenses. One unlawful practice by defendant Brenneke et al. is to restrict and deprive tenant's use and enjoyment of Uptown Tower apartment's HUD designated common areas for unjust enrichment practices and for the use of management staff such as the lobby and basement garages, 7th floor recreation room, kitchen and toilet facility, basement toilet facility, basement computer rooms and misuse of the Uptown Renters Association lobby bulletin board.Id. at ¶ 26.
In support of hostile environment and retaliation claims, plaintiffs allege defendants refused their request to lease an apartment to a police officer or security personnel (to deter crime in the building) as retaliation for their legal activities. Id. at ¶¶ 29, 30. Plaintiffs also allege denial of a request to make an application to the HUD Services Coordinator Program, failure to conduct a disability determination, and refusal to investigate to evict tenants' plaintiffs assert “disturb them”. Id. at ¶¶ 32-46, 53, 54, 55, 71. Plaintiffs also assert defendants refused their requests to install an electronic lock on the tenant entrance door to the locker room in the basement to prevent theft; provisions for additional handicap parking spaces; opening the seventh floor common areas activity room/toilet facility/kitchen for tenant use; opening the basement toilet facility/computer room; locking the laundry room during posted closed hours; assignment of basement garage parking spaces for a van; and posting legible HUD rules. Id. at ¶ 49, 50, 57, 5966, 67. Plaintiffs also assert denial of requests to extend the monthly due date for rent to accommodate the date they receive social security checks. Id. at ¶¶ 62, 63, 64.
Plaintiff Johnson also alleges refusal to accommodate his request to reinstate his annual re-certification of HUD compliance after he refused to add his spousal live-in care-giver as “co-head” to the rental agreement resulting in HUD termination from the subsidy program. Id. at ¶ 72.
Plaintiffs seek equitable and monetary relief so that they may “age in place peacefully and safely in their homes without threats of reprimands, retaliation, evictions, or of serious life-threatening diseases from unwelcome intrusions by management, uninvited guests and strangers into our living spaces in and around the Uptown Tower Apartment building by reckless endangerment from the unlawful unauthorized obtrusive practices of Defendants their lawyers, agents, and other tenants.” Id. at ¶ 75.
Defendants move to dismiss this complaint asserting: the complaint is duplicative of claims made in prior complaints; plaintiffs fail to allege a nexus between the requested accommodations and any disability; plaintiffs fail to state a claim for retaliation; any alleged failures to engage in an interactive process is not viable claim; defendants cannot be liable for hostile environment harassment based on harassment of third parties; and defendant Brenneke is not personally liable for torts of a limited liability company.
DISCUSSION
A. Reasonable Accommodations Regarding Pre-REAC Inspections
FHA discrimination includes “a refusal to make reasonable accommodations in rules policies, practices, or services, when such accommodations may be necessary to afford such person equal opportunity to enjoy the dwelling.” 42 U.S.C. § 3604(f)(3)(B). To establish a prima facie case for failure to make a reasonable accommodation, the plaintiff must show that: (1) he or she suffers from a “handicap” as defined by 42 U.S.C. § 3602(h); (2) the defendants knew or should reasonably be expected to know of the plaintiff's handicap; (3) the accommodation of the handicap “may be necessary” to afford the plaintiff an equal opportunity to use and enjoy the dwelling; (4) the accommodation is reasonable; and (5) the defendants refused to make such accommodation. DuBois v. Ass'n of Apartment Owners of 2987 Kalakaua, 453 F.3d 1175, 1179 (9th Cir. 2006).
As noted above, plaintiffs allege they requested an accommodation of no pre-REAC inspections during a time of risk of COVID transmission. While plaintiffs allege they both have a qualifying handicap, they do not allege any specifics regarding the handicap and how the request is necessary to allow them an equal opportunity to use and enjoy the dwelling. Although the risk of transmission of COVID is plausibly a concern related to an inspection by third parties, such concern is generally shared by all tenants regardless of disability. Plaintiffs do not allege any handicap that involves a compromised immunity that places them at greater risk of infection than tenants without such handicap.
To the extent plaintiffs assert that it is defendants who are obligated to identify the connection between a disability and requested accommodation, they are mistaken. It is well-established that “there must be a ‘causal link' between the requested accommodation and the plaintiff's disability.” Howard v. HMK Holdings, LLC, 988 F.3d 1185, 1191 (9th Cir. 2021); see also Joint Statement of the Department of Housing and Urban Development and the Department of Justice, Reasonable Accommodations Under the Fair Housing Act (May 17, 2004), available at https://www.justice.gov/sites/default/files/crt/legacy/2010/12/14/jointstatementra.pdf (“in response to a request for a reasonable accommodation, a housing provider may request reliable disability-related information that . . . shows the relationship between the person's disability and the need for the requested accommodation”). Thus, where allegations concerning the requisite nexus between the plaintiffs' medical conditions and the requested accommodation is lacking, the defendant is under “no obligation” to provide the accommodation and the FHA “inquiry ends.” See Howard, 988 F.3d at 1190-91. To the extent plaintiffs assert defendants must engage in some sort of interactive process when plaintiffs make accommodation requests, that assertion is also mistaken. See Groner v. Golden Gate Gardens Apartments, 250 F .3d 1039, 1047 (6th Cir.2001) (“Moreover, while some courts have imposed an obligation on employers and employees to engage in an interactive process, there is no such language in the Fair Housing Act or in the relevant sections of the Department of Housing and Urban Development's implementing regulations that would impose such a duty on landlords and tenants.”); Rodriguez v. Morgan, 2012 WL 253867, at *8 (C.D.Cal. Jan. 26, 2012) (“[T]his Court would not find that the interactive process is a separate requirement under the FHAA ... in the housing context, such that a landlord's failure to engage in it gives rise to an independent basis for finding disability discrimination.”).
Moreover, the inspections are required by HUD regulations. 24 C.F.R. § 902.20. Plaintiffs requested accommodation of no inspection is patently unreasonable. Doe v. Hous. Auth. of Portland, 2015 WL 758991, at *6 (D. Or. Feb. 23, 2015), aff'd, 644 Fed.Appx. 722 (9th Cir. 2016) (Plaintiff's requested accommodation is patently unreasonable because if granted, it would violate federal regulations and would fundamentally alter the FHA program.). Accordingly, plaintiffs' request for accommodation regarding pre-REAC inspections should be dismissed and the 3:21-cv-947-JR complaint should be dismissed for failure to state a claim.
In the 21-cv-1439-JR complaint, plaintiffs allege fourteen claims for relief that generally align with each separate request for accommodation. As with the 21-cv-947 complaint, plaintiffs do not allege the specifics of their alleged handicaps and do not allege any facts demonstrating a plausible nexus between their handicaps and the requested accommodations for the majority of their claims. Accordingly, to the extent plaintiffs assert any claims for refusal to make reasonable accommodations and fail to allege a nexus between the accommodation and their disabilities, the claims should be dismissed. Plaintiffs devote much of the complaint to allegations of harassment and retaliation. The Court addresses each claim for relief in turn.
B. 21-cv-1439-JR Claims for Relief
1. First Claim for Relief
Plaintiffs asserts their request to defendants to lease an apartment to a police officer or security personnel to deter crime was ignored as a retaliation measure because of their renter's rights association and legal activities. Plaintiffs do not allege how such an accommodation is necessary to afford them an equal opportunity to use and enjoy the dwelling.
A prima facie showing of FHA retaliation requires the plaintiffs to prove: (1) he or she was engaged in protected activity; (2) he or she suffered an adverse action in the form of coercion, intimidation, threats, or interference; and (3) there was a causal link between the two. DuBois, 453 F.3d at 1180. Because plaintiffs do not plausibly allege the accommodation request was reasonably related to a handicap, the denial of the request is not an adverse action. Plaintiffs also fail to allege any acts of coercion, intimidation, threats, or interference. The Ninth Circuit has defined “coercion” as “the application of sanctions or force by a government [usually] accompanied by the suppression of constitutional liberties in order to compel dissenters to conform.” Walker v. City of Lakewood, 272 F.3d 1114, 1129 (9th Cir.2001). Interference is the “the act of meddling in or hampering an activity or process.” Id. Threat is “an expression to inflict evil, injury, or other damage on another.” Id. The Ninth Circuit has held that “intimidation” requires a showing that the defendant's activities generated fear in the plaintiff. Id. at 1129 n. 4. This claim should be dismissed.
2. Second Claim for Relief
Plaintiff Johnson alleges defendants' denial of his request to make an application to the HUD Services Coordinator Program was because Johnson did not meet the disability requirements. Plaintiff Hume alleges the same request was ignored by defendants in retaliation for her legal activities. Again, plaintiffs fail to allege a nexus between the requested accommodation and any disability they may suffer necessary to allow equal enjoyment of the dwelling. Plaintiffs do not allege they provided disability related information to defendants showing the relationship between the disability and the need for the requested accommodation. Moreover, plaintiffs fail to plausibly allege any acts of coercion, intimidation, threats, or interference.
3. Third and Fourth Claims for Relief
Plaintiffs allege they “have submitted multiple medically verified reasonable accommodation requests” that were repeatedly denied due to lack of meeting disability requirements or failed “to properly conduct a disability determination of … known disabilities … that require the assistance … of a caregiver, a SSDI beneficiary and a readily identifiable wheelchair user” because of their legal activities. Again, plaintiffs fail to allege sufficient facts to plausibly allege a claim for retaliation or FHA discrimination.
A complaint must comply with the pleading requirements of the Federal Rules of Civil Procedure. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007); and Ashcroft v. Iqbal, 556 U.S. 662 (2009). Fed.R.Civ.P. 8(a)(2) requires a complaint contain “a short and plain statement of the claim showing the pleader is entitled to relief.” However,
[w]hile a complaint ... does not need detailed factual allegations, a plaintiff's obligation to provide the “grounds” of his “entitle[ment] to relief” requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do, see Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986) (on a motion to dismiss, courts “are not bound to accept as true a legal conclusion couched as a factual allegation”). Factual allegations must be enough to raise a right to relief above the speculative level....Bell Atlantic Corp., 550 U.S. at 555 (citations omitted). Moreover, the Supreme Court has emphasized that, when assessing the sufficiency of any civil complaint, a court must distinguish factual contentions-which allege behavior on the part of the defendant that, if true, would satisfy one or more elements of the claim asserted-and “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements.” Ashcroft, 556 U.S. at 678. In short, “a complaint must contain sufficient factual matter, accepted as true, to state a claim for relief that is plausible on its face.” Id. The conclusions, absent sufficient factual allegations, in the complaint do not meet the pleading requirements and these claims should be dismissed.
4. Fifth, Sixth, and Eighth Claims for Relief
Plaintiffs allege another tenant or guests caused disturbances and that defendants retaliated against them for their legal activities by refusing to investigate that allegation. Although it is not clear in this Circuit whether defendants can be liable for the actions of other tenants, in a similar action by plaintiff Johnson, this Court assumed such claims may proceed if plaintiffs allege:
(1) he is a qualified individual with a disability; (2) he was subject to unwelcome harassment; (3) the harassment was based on his disability or request for accommodation; (4) the harassment was sufficiently severe or pervasive to alter the plaintiff's living conditions and create an abusive environment; and (5) either the harassment was committed by a landlord or his agent/employee, or the landlord knew or should have known of the third-party harassment and had the power to correct it. Neudecker, 351 F.3d at 364-65; 24 C.F.R. §§ 100.600, 100.7. The latter is determined by “the extent of the [the landlord's] control or any other legal responsibility the [landlord] may have with respect to the conduct of such third-party.” 24 C.F.R. § 100.7.
Findings and Recommendation (ECF 77 in Case No. 3:21-cv-582 (Lead)) at p. 10.
To the extent plaintiffs seek to allege an FHA discrimination or retaliation claim, such claims fail for the reasons noted above due to the failure to allege sufficient plausible factual content to assert such claims. In addition, to the extent plaintiffs seek to allege an FHA harassment claim, they fail to allege a connection of the other tenants' actions to their disabilities or requests for accommodation or that defendants had the power to correct it. Accordingly, this claim should be dismissed.
5. Seventh, Eleventh, and Twelfth Claims for Relief
Plaintiffs allege:
On September 10, 2021, Larry Johnson made multiple and separate verified reasonable accommodation requests to Defendant(s) Brenneke et al.: i.) installation of an electronic lock for tenant entrance door to locker room in basement to prevent theft due to my locker and other tenant's lockers being looted many times; ii.) provisions for additional accessible handicapped parking spaces in the HUD common area basement and lobby parking garages with limitations and restrictions on management and commercial paid parking; iii.) opening and unlocking of seventh floor common areas activity room, toilet facility and kitchen area for our and tenant use and restriction of management's misuse of these HUD defined common areas; iv.) opening of basement toilet facility for my and tenant's use and conversion of another large facility with toilet and wash basin for management's use as a break room with notation that Defendant Brenneke et al. have never provided a toilet, break room, kitchen or parking spaces for his staff except unlawfully utilize HUD common areas for those purposes; v.) opening of basement computer room with 24 hour free internet thru HUD and the Emergency Broadband Center; vi.) locking all three laundry rooms doors during the posted closed laundry hours of 10 PM and 8 PM for peaceful sleep and quiet enjoyment during these
house from noise; vii) assignment of (common area) basement garage parking space #6 in addition to my assigned parking space #7 for an accessible wheel chair accessible parking space for my van; viii) Posting of readable and legible HUD House Rules, HUD
Model Lease for Subsidized Programs and other future required notices on the large glass encased lockable lobby bulletin board.
Complaint (ECF 1 in case No. 3:21-cv-1439) at ¶ 49. Plaintiff Hume alleges the same requests. Plaintiff Johnson also alleges retaliation in the form of continually blocking his parking space.
Plaintiffs assert defendants denied all requests because of their renter's rights association and legal activities.
Plaintiffs fail to allege a connection between the requests for accommodation and their disabilities except for the parking requests. With regard to the parking space issues, this Court has already found in favor of defendants on summary judgment. Findings and Recommendation (ECF 77 in Case No. 3:21-cv-582 (Lead)) at pp. 14-15. The allegations otherwise fail to state a claim for relief for discrimination, retaliation, or harassment for the reasons noted above and the claims should be dismissed.
6. Ninth Claim for Relief
Plaintiffs allege they requested an accommodation in the form of posting the name, address, and telephone number of defendants HUD compliance officer on the Uptown bulletin board. Again, this claim fails to make a connection between a disability and the accommodation or show an adverse action. This claim should be dismissed.
7. Tenth Claim for Relief
Plaintiffs allege their requests to move their monthly rental payments to the eighth of the month due to the timing of their SSDI payments were ignored in retaliation for their legal activities. A liberal reading of this claim states a claim for FHA disability discrimination and retaliation. Plaintiffs plausibly allege their financial condition, impacted by their disability necessitating income assistance through the Social Security Administration, requires an accommodation regarding the payment date of their rent. Moreover, the action is plausibly read to demonstrate an interference with the plaintiffs' ability to enjoy their dwelling. While the allegations do not explicitly demonstrate a causal link between protected activity and the alleged refusal to accommodate a financial condition precipitated by plaintiffs' alleged disabilities, a liberal reading of the complaint allows such an inference. The motion to dismiss this claim should be denied.
8. Thirteenth Claim for Relief
Plaintiffs allege denial of:
reasonable accommodation request hostile environment harassment in and around building with photos of spent hypodermic needles for methamphetamine use and for manufacturing residue testing within the Uptown Tower Apartment building principally on the third floor by drug addict tenants and their guests by a professional testing company or with an easily obtained and relatively inexpensive handheld meth testing monitor.
Complaint (ECF 1 in case No. 3:21-cv-1439) at ¶ 71.
As with most of plaintiffs' claims, they fail to plausibly allege sufficient facts to demonstrate a connection between the request and their disabilities. Moreover, plaintiffs fail to allege facts to demonstrate that any harassment was based on their disabilities or request for accommodation, or that the harassment was committed by a third party whom defendants had the power to correct. This claim should be dismissed.
9. Fourteenth Claim for Relief
Plaintiff Johnson alleges a request to reinstate his 2020 and 2021 recertifications in compliance with HUD's tenant eligibility after defendants refused to submit his 2020 packet because plaintiff refused to add his live-in caregiver spouse as a “co-head” to the rental agreement. Plaintiff's allegations establish the reason for defendants' action was based on his faulty paperwork and not due to his handicap. Accordingly, this claim should be dismissed.
C. Defendant Brenneke
Defendant Brenneke asserts he should be dismissed from this action because he cannot be found individually liable for actions stemming from his ownership in Guardian Management. In the single remaining claim regarding accommodation of moving the rental payment date, plaintiffs allege the accommodation request was sent to Thomas Brenneke as landlord. Although the Court has granted defendant Brenneke summary judgment in a similar action based on the lack of evidence of personal action subjecting him to individual liability, at this stage, in theses cases, the Court cannot make that determination on a motion to dismiss.
D. Duplicative Claims
Defendants ask the Court to dismiss these complaints because they are duplicative of claims made in several other cases pending before the Court including Case Nos. 3:21-cv-582-JR, 3:21-cv-685-JR, 3:21-cv-871-JR, 3:21-cv-517-SI, and 3:19-cv-485-SI. The Court agrees that the complaints are similar and raise similar accommodation requests. However, the other JR cases have already been recommended for dismissal on summary judgment, the 3:19-cv-485 SI case has concluded following a bench trial, and the 3:21-cv-517-SI case does not involve plaintiff Johnson. If defendants believe the other cases demonstrate claim or issue preclusion problems, they should move accordingly.
E. Vexatious Litigant
Defendants move for an order enjoining plaintiffs from filing any further actions in this Court against them without leave of Court. Although plaintiffs appear to have sought numerous frivolous claims, the Court should decline to enjoin further filings at this time for the reasons stated in the Findings and Recommendation in Case No. 3:21-cv-582-JR. Findings and Recommendation (ECF 77 in Case No. 3:21-cv-582 (Lead)) at pp. 19-21.
F. Declaratory Judgment
Plaintiffs seek a declaration of rights and judicial analysis as to hostile environment harassment and reasonable accommodation request violations. Such relief will not be effective in settling these controversies and are accordingly denied. See Fed.R.Civ.P. 57 Advisory Committee Notes (When declaratory relief will not be effective in settling the controversy, the Court may decline to grant it). To the extent plaintiffs seek an explanation of the elements of their claims in aid of any amended complaint, the elements of their claims are stated in this Findings and Recommendation.
G. Leave to Amend
The Court should decline to dismiss any claims with prejudice. If plaintiffs choose to amend in an attempt to cure the deficiencies related to the dismissed claims, the Court notes that any claims that are subject to claim or issue preclusion will be subject to dismissal with prejudice based on an appropriate motion. Any amended complaint should be filed within 14 days after a final ruling on the motions to dismiss.
H. Other Pending Motions
Plaintiffs have filed several motions for partial summary judgment despite the fact the case remains in the pleading stage. Plaintiffs seek summary judgment regarding the requested extension of the rental payment due date. (ECF 26). Although this claim has survived the motions to dismiss, it is unclear if the parties have engaged in adequate discovery to permit a sufficient response to the motion. Not only does this case remain in the pleading stage, but discovery and dispositive motion deadlines are not yet scheduled. Accordingly, the motion should be denied without prejudice. Plaintiffs also move for summary judgment regarding the requests for opening the basement toilet; locks to the locker room in the basement; handicap parking; and opening the seventh-floor common areas (ECF 28). Because the Court recommends that defendants' motion to dismiss as to these claims should be granted, this motion for partial summary judgment should be denied.
Plaintiffs also move for partial summary judgment seeking:
an opinion and order for partial summary judgment against defendants Thomas Barry Brenneke Junior, Guardian Management, Guardian Real Estate Services, Uptown Tower Apartments, Kelly Paine, and Lisa Simonson concerning plaintiff's FOURTH CLAIM FOR RELIEF Case No. 3:21-cv-1439-SI (paragraph 37-39 beginning on page 8) under the Fair Housing Act and as defined by HUD as disabled and protected persons with known disabilities that have resulted in all nine fundamental limitations of the activities daily living required by Oregon law (OAR 411-015-006) necessitating the assistance of State of Oregon \Medicaid approved caregivers, and as Social Security Disability Insurance beneficiaries and readily identifiable as wheel chair users.
Motion for Partial Summary Judgment (ECF 16 in Case No. 3:21-cv-1439-JR) at p. 2. Although the Court takes judicial notice that plaintiff Johnson has adequately established he is a person with a disability, the record has not been sufficiently developed to allow the Court to make such a broad determination, regarding both plaintiffs, as to this element of plaintiffs' FHA claims. Accordingly, this motion for partial summary judgment should be denied.
See Findings and Recommendation (ECF 77 in Case No. 3:21-cv-582 (Lead)) at p. 10.
RECOMMENDATION
For the reasons stated above, the motions to dismiss (ECF 11 in case No. 3:21-cv-1439-JR, ECF 12 in Case No. 3:21-947-JR) should be granted with respect to all claims in case No. 3:21-947 and granted as to all claims except the tenth claim for relief in Case No. 3:21-cv-1439-JR. Plaintiffs' motion for declaratory judgment (ECF 11) should be denied. Defendants' motion for a vexatious litigant order (ECF 9 in Case No. 3:21-cv-1439-JR) should be denied. Plaintiffs' motion for partial summary judgment (ECF 26) (and ECF 25 in Case No. 3:21-cv-1439-JR) regarding the rental payment date should be denied. Plaintiffs' motion for partial summary judgment regarding an order concerning their disabilities (ECF 16 in Case No. 3:21-cv-1439-JR) should be denied. Plaintiffs' motion for partial summary judgment regarding various access requests (ECF 28) (and ECF 27 Case No. 3:21-cv-1439-JR) should be denied.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment or appealable order. The parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the court. Thereafter, the parties shall have fourteen (14) days within which to file a response to the objections. Failure to timely file objections to any factual determination of the Magistrate Judge will be considered as a waiver of a party's right to de novo consideration of the factual issues and will constitute a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to this recommendation.