Opinion
7:21-CV-00080-BO
06-25-2021
Gary L. Swanson, Plaintiff, v. Alex King & King Management, LLC, Defendants.
MEMORANDUM & RECOMMENDATION
Robert T. Numbers, II United States Magistrate Judge
Plaintiff Gary L. Swanson has sued Alex King and King Management LLC for allegedly violating the Fair Housing Act. D.E. 1-1, 6. Before the court is Swanson's IFP motion, which, if granted, would relieve him from paying the required filing fee. D.E. 1. In connection with that motion, the court must also assess the viability of his case. After considering his submissions, the undersigned recommends that the court deny Swanson's IFP motion and dismiss the complaint without prejudice for failure to state a claim.
I. Background
The pleadings in action contain very little information. But it appears that Swanson believes Defendants violated his rights under the FHA. D.E. 1-1, 6. He also says that King locked him out of his home and accused him of breaking and entering. D.E. 6. He seeks $90,000 from Defendants for their allegedly wrongful conduct. D.E. 4
Swanson filed a proposed complaint with his IFP motion. D.E. 1-1. After reviewing the proposed complaint, the court ordered him to submit a supplement, which he did. D.E. 5, 6.
II. Analysis
The court begins by assessing whether Swanson may proceed without paying the filing fee. He cannot. His financial affidavit shows that he has the resources to pay the costs associated with litigation. And then the court must conduct the screening required by 28 U.S.C. § 1915. After doing so, the undersigned recommends that the court dismiss the Complaint without prejudice because it lacks sufficient allegations to plausibly state a claim for relief.
1. Application to Proceed IFP
In Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331 (1948), the Supreme Court set out the standard for granting an IFP request. The Court explained that “an affidavit is sufficient” if it “states that one cannot because of his poverty ‘pay or give security for the costs . . . and still be able to provide' himself and dependents ‘with the necessities of life.” Id. at 339.
The court has considered the financial affidavit Swanson submitted. It reveals that he has over $17,000 a month in income and close to $6,000 a month in expenses. Given his current financial status, Swanson has failed to show that payment of the required court costs would deprive him or his family of the necessities of life.
Thus, the undersigned recommends that the court deny the IFP motion and, if the court rejects the recommendation that follows, require Swanson to pay the necessary filing fee within 30 days from the date this order is adopted.
2. Screening Required under 28 U.S.C. § 1915
Besides determining whether Swanson is entitled to IFP status, the court must also analyze the viability of the claims in the Complaint. 28 U.S.C. § 1915(e). The court reviews a complaint to eliminate claims that unnecessarily impede judicial efficiency and the administration of justice. The court must dismiss any portion of the complaint it determines is frivolous, malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. Id. § 1915(e)(2)(B).
A complaint fails to state a claim upon which relief may be granted if it does not “contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The Supreme Court has explained that “[a] claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. Swanson's pro se status relaxes, but does not eliminate, the requirement that his complaint contain facially plausible claims. The court must liberally construe a pro se plaintiff's allegations, but it “cannot ignore a clear failure to allege facts” that set forth a cognizable claim. Johnson v. BAC Home Loans Servicing, LP, 867 F.Supp.2d 766, 776 (E.D. N.C. 2011).
Swanson has failed to state a claim upon which relief can be granted. Even after being given an opportunity to supplement his complaint, he has not alleged enough facts to plausibly allege that Defendants violated the Fair Housing Act.
The FHA makes it unlawful to “discriminate in the sale or rental, or to otherwise make unavailable or deny, a dwelling to any buyer or renter because of a handicap[.]” 42 U.S.C. § 3604(f)(1)(A). The Act defines ‘handicap' in three ways. First the term includes a “physical or mental impairment which substantially limits one or more of such person's major life activities[.]” 42 U.S.C. § 3601(h)(1). Second the term applies to people with a “record of having such an impairment[.]” Id. § 3601(h)(2). And third a person who is “regarded as having such an impairment” would qualify as handicapped. Id. § 3602(h)(3).
The FHA prohibits several forms of discrimination. 42 U.S.C. § 3604. Swanson's filings do not say which form of discrimination he believes he suffered. Given that he attached documents about his mental health issues, the court will presume that he is alleging disability discrimination. The result, however, would be the same no matter what form of discrimination he was alleging.
Swanson's filings show that he lives with several physical and mental health issues. D.E. 1 at 13-19. But he has not explained how King discriminated against him because of his disability. D.E. 1 at 5. His filings allege only that King locked him out of the property and accused him of breaking and entering and nothing more. D.E. 6. Even liberally construing the allegations, the undersigned cannot find that he has plausibly stated a claim for relief. Thus, the court should dismiss Swanson's complaint for failure to state a claim.
III. Conclusion
For these reasons, the court should deny Swanson's motion to proceed (D.E. 1) and dismiss5 this action without prejudice for failure to state a claim.
The Clerk of Court must serve a copy of this Memorandum and Recommendation (“M&R”) on each party who has appeared in this action. Any party may file a written objection to the M&R within 14 days from the date the Clerk serves it on them. The objection must specifically note the portion of the M&R that the party objects to and the reasons for their objection. Any other party may respond to the objection within 14 days from the date the objecting party serves it on them. The district judge will review the objection and make their own determination about the matter that is the subject of the objection. If a party does not file a timely written objection, the party will have forfeited their ability to have the M&R (or a later decision based on the M&R) reviewed by the Court of Appeals.