Radivojevicv.Granville Ter. Mut. Ownership Trust

United States District Court, N.D. Illinois, Eastern DivisionJan 30, 2001
Case No. 00 C 3090 (N.D. Ill. Jan. 30, 2001)

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Case No. 00 C 3090

January 30, 2001

BRATISLAV M. RADIVOJEVIC, Chicago, IL, Pro Se Plaintiff.

BARRY E. MORGEN, Esq., Lincolnwood, IL, for Defendants.


MEMORANDUM OPINION AND ORDER


Defendants, the Granville Terrace Mutual Ownership Trust ("Granville Trust") and Loretta Corfman, Chairperson of the Granville Trust, move to bring this litigation to a close pursuant to Federal Rule of Civil Procedure 12(b)(6). On September 27, 2000, this Court dismissed Plaintiff Radivojevic's claim under 42 U.S.C. § 3601-31, the Fair Housing Act, because the statute of limitations had run. For the reasons that follow, the remaining claims against Defendants are also dismissed.

The parties have consented to have this Court conduct any and all proceedings, including the entry of final judgment. See 28 U.S.C. § 636 (c); Local R. 73.1(b).

I. Background

As discussed more fully in Radivojevic v. Granville Terrace Mutual Ownership Trust, No. 00 C 3090, 2000 WL 1433999 (N.D. Ill. Sept. 27, 2000), this case involves the purchase of shares of Defendant Granville Trust, a cooperative apartment building, located in Chicago, Illinois. On February 25, 1997, Plaintiff, Plaintiff's daughter, and McKillip, an owner of shares of Defendant Granville Trust, entered into a Contract for Sale of Shares of Cooperative Apartment. The sale, however, was subject to approval by Defendant Granville Trust.

As it turns out, on May 14, 1997, Defendant Corfman informed Plaintiff that Defendant Granville Trust would not approve the sale. Defendant Corfman claimed that the decision was based on Plaintiff's financial situation. Plaintiff, on the other hand, believed that Defendants rejected the sale because Plaintiff suffered from a disability. Several proceedings, including this one, ensued.

II. Discussion

A. Standard of Review

This Court, once again, tests Plaintiff's complaint under Rule 12(b) (6). The purpose of Rule 12(b)(6) is to evaluate the sufficiency of the complaint in stating a claim upon which relief can be granted. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). Dismissal is appropriate "only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Hishon v. King Spalding, 467 U.S. 69, 73 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). In ruling on a motion to dismiss, the court presumes that the well-pleaded allegations of the complaint are true and draws all reasonable inferences in favor of the plaintiff. See Warth v. Seldin, 422 U.S. 490, 501 (1975); Jenkins v. McKeithen, 395 U.S. 411, 421-22 (1969).

While federal notice pleading permits a generous reading of the complaint to withstand a motion to dismiss, the complaint must at least set forth sufficient facts to "`outline or adumbrate'" the basis of the claim. Panaras v. Liquid Carbonic Indus. Corp., 74 F.3d 786, 792 (7th Cir. 1996). The plaintiff "will not be allowed to evade this requirement by attaching a bare legal conclusion to the facts that he narrates." Sutliff, Inc. v. Donovan Cos., 727 F.2d 648, 654 (7th Cir. 1984).

Lastly, this Court is mindful of the additional considerations that apply in cases such as this — where the plaintiff appears pro se. A pro se plaintiff's pleadings are construed more liberally, and the court should find that the pro se plaintiff's complaint states a valid claim for relief despite the plaintiff's failure to cite proper legal authority or the plaintiff's unfamiliarity with pleading requirements. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). Nevertheless, the pro se plaintiff must allege sufficient facts on which a recognized legal claim could be based. See Young v. Breeding, 929 F. Supp. 1103, 1106 (N.D. Ill. 1996). The court will not "assume the role of advocate for the pro se [plaintiff]." Hall, 935 F.2d at 1110.

B. Fourteenth Amendment

This Court's analysis begins with Plaintiff's assertion that Defendants violated his rights under the Equal Protection Clause of the Fourteenth Amendment by not consenting to the sale of shares. To bring a claim under the Equal Protection Clause, the plaintiff must present evidence of "state action," rather than purely private action. See Gilmore v. City of Montgomery, 417 U.S. 556, 565 (1974); Sherman v. Cmty. Consol. Sch. Dist. 21, 8 F.3d 1160, 1167-69 (7th Cir. 1993). State action is action that may be "fairly treated as that of the State itself." Jackson v. Metro. Edison Co., 419 U.S. 345, 351 (1974). This, of course, includes actions taken by a state's executive, legislative, judicial, and administrative offices. See, e.g., Hernandez v. Texas, 347 U.S. 475, 477 (1954). Additionally, this includes actions taken by private parties, but only where the action derives "from the exercise of a right or privilege having its source in state authority" and where the private party engaging in the action can be "described in all fairness as a state actor." Edmonson v. Leesville Concrete Co., 500 U.S. 614, 620 (1991). In making this determination, the court considers "the extent to which the actor relies on governmental assistance and benefits," "whether the actor is performing a traditional governmental function," and "whether the injury caused is aggravated in a unique way by the incidents of governmental authority." Id. at 621-22.

Plaintiff's complaint and response memorandum are wholly devoid of any allegations demonstrating the existence of state action. Nothing shows that Defendants' rejection of the sales contract derived "from the exercise of a right or privilege having its source in state authority" or that Defendants can be "described in all fairness as state actors." Instead, the complaint only adumbrates the existence of a purely private dispute, involving purely private actors. Under these circumstances, the Equal Protection Clause of the Fourteenth Amendment cannot provide a basis for any cause of action by Plaintiff.

C. Claims Under §§ 1981-82

Plaintiff also has not set forth sufficient facts to outline the basis of a claim under either § 1981 or § 1982. Congress enacted 42 U.S.C. § 1981-82 to provide for equality between persons of different races. See Schroeder v. Illinois, 354 F.2d 561, 562 (7th Cir. 1965); Agnew v. City of Compton, 239 E.2d 226, 230 (9th Cir. 1956). Accordingly, to establish a claim under § 1981, a plaintiff must allege that he is a member of a racial minority, that the defendant intentionally discriminated against the plaintiff on the basis of race, and that the discrimination related to the activities enumerated in the statute. See Mian v. Donaldson, Lufkin Jenrette Sec. Corp., 7 F.3d 1085, 1087 (2d Cir. 1993). And, to establish a claim under § 1982, a plaintiff must demonstrate that the defendant intentionally discriminated against the plaintiff on the basis of race in the sale or rental of property. See Jones v. Alfred H. Mayer Co., 392 U.S. 409, 421-22 (1968); Asbury v. Brougham, 866 F.2d 1276, 1279 (10th Cir. 1989).

Such activities include making and enforcing contracts, suing, giving evidence in court, etc. See 42 U.S.C. § 1981 (a).

This case, however, involves an allegation of disability discrimination not racial discrimination. Nowhere in the documents filed with this Court does Plaintiff ever present a single allegation of racial discrimination. (See Pl.'s V. Compl. at 1-2, 4, 7-8, 12-14; Pl.'s Resp. Defs.' Mot. Dismiss at 6, 8, 10, 12.) In fact, Plaintiff never even mentions the word "race." See Bennett v. Schmidt, 153 F.3d 516, 518 (7th Cir. 1998) (suggesting that "`I was turned down for a job because of my race'" is all a Title VII plaintiff has to say to withstand an attack pursuant to Rule 12(b)(6)). Hence, the protection that §§ 1981-82 afford is not the protection sought here. Plaintiff's claims under §§ 1981-82 are dismissed.

D. Section 1983

The basis for dismissing Plaintiff's Fourteenth Amendment claim equally applies to Plaintiff's § 1983 claim. Section 1983 deters state actors from abusing their power and depriving others of their civil rights under color of state law. See City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 258 (1981). "Under color of state law" means pretense of law; it involves a "misuse of power possessed by virtue of state law and made possible only because the wrongdoer is clothed with . . . [state) authority." Atkins v. Lanning, 415 F. Supp. 186, 188 (N.D. Okla. 1976). Thus, "purely private action . . . discriminatory or not, is not prohibited by Section 1983." Bailey v. Boilermakers Local 667, 480 F. Supp. 274, 279 (N.D. W. Va. 1979).

As mentioned above, the pleadings indicate that this case involves a purely private dispute between two purely private actors. Any power that the Defendants possessed derived from status as owner of private property or as elected board member of a private entity. Neither fact can provide a basis for Plaintiff's action under § 1983.

E. Section 1585(3)

Plaintiff's § 1985(3) claim is wanting as well. Section 1985(3) creates a cause of action against persons who conspire to deprive classes of persons of their federally protected rights. See Cohen v. Ill. Inst. of Tech., 524 F.2d 818, 827-29 (7th Cir. 1975). The statute itself creates no substantive rights. Thus, for purposes of a Rule 12(b)(6) motion, the court must look at both § 1985(3) and the federally protected right underlying the § 1985(3) claim to see if a possible § 1985(3) claim exists. See Cohen, 524 F.2d at 827-29. For instance, where the Fourteenth Amendment provides the basis of a § 1985(3) claim, a showing of state action is required. See id. at 828. But where the Thirteenth Amendment or the right to travel, for example, serves as the basis of a § 1985(3) claim, no such showing of state action is required. See id.

The elements of the § 1985(3) claim itself are as follows: a conspiracy; an intent to deprive an individual, or class of individuals, of the equal protection of the laws; an act in furtherance of the conspiracy; and an injury or deprivation of a right. See Trautvetter v. Quick, 916 F.2d 1140, 1153 (7th Cir. 1990) (quoting Triad Assocs., Inc. v. Chicago Hous. Auth., 892 ?.2d 583, 591 (7th Cir. 1989)). In Griffin v. Breckenridge, the Supreme Court held that "racial, or perhaps [some other] class-based invidiously discriminatory animus" must serve as the basis of the conspirators' actions. 403 U.S. 88, 102 (1971) Besides race, classes recognized as supporting a § 1985(3) claim include those based on ethnic origin, sex, religion, and political loyalty. See D'Amato v. Wis. Gas Co., 760 F.2d 1474, 1486 (7th Cir. 1985); Askew v. Bloemker, 548 F.2d 673, 678 (7th Cir. 1976); Murphy v. Mt. Carmel High Sch., 543 F.2d 1189, 1192 n. 1 (7th Cir. 1976). To the contrary, the Seventh Circuit held that disabled persons do not constitute such a protected class. See D'Amato, 760 P.2d at 1485-87. But see Trautz v. Weisman, 819 F. Supp. 282, 290-95 (S.D.N.Y. 1993) (finding that a class of disabled persons may be protected under § 1985(3)).

Here, a careful review of Plaintiff's complaint only reveals a possible § 1985(3) claim based on the Fourteenth Amendment for disability discrimination. As explained above, this means that Plaintiff would need to allege state action. Plaintiff, however, has not alleged any state action. See supra Pts. B D. Thus, the § 1985(3) claim must be dismissed.

Additionally, Plaintiff's § 1985(3) claim must also be dismissed because disabled persons are not a protected class under § 1985(3). See D'Amato, 760 F.2d at 1485-87. Furthermore, even assuming that disabled persons could constitute a protected class for purposes of § 1985(3), and that Plaintiff alleged state action, Plaintiff's claim would still be dismissed because he has failed to adumbrate any facts showing that Defendants discriminated against disabled persons other than him. (See Pl.'s V. Compl. at 2, 7, 12, 13-14.) After all, § 1985(3) requires class-based discrimination. See Silkwood v. Kerr-McGee Corp., 637 F.2d 743, 748 (10th Cir. 1980) ("To state a cause of action under section 1985(3) the law requires prejudice against a class qua class."); Maidman v. Regent House Tenants Corp., No. 84 Civ. 6252 (RWS), 1984 WL 1307, at *3 (S.D.N.Y. Dec. Si 1984) (dismissing § 1985(3) claim because plaintiff "failed to present any evidence of a discriminatory animus on the part of [defendant] directed towards the aged or senile other than the action directed [at] her").

F. Americans With Disabilities Act

Finally, Plaintiff's claim under the Americans with Disabilities Act must be dismissed. The ADA prohibits discrimination against disabled persons by persons who own or operate places of public accommodation. See 42 U.S.C. § 12182 (a). A place of public accommodation includes an inn, hotel, motel, or "other place of lodging." Id. § 12181(7) (A)

Although Plaintiff never alleges that Defendants' cooperative apartment is a place of public accommodation, this appears to be the only basis of ADA coverage.

"[O]ther place of lodging" is not defined in the statute, but the legislative history of the ADA clarifies that "other place of lodging" does not include any residential facility. See H.R. Rep. No. 101-485 (II), at 100 (1990). That being said, apartments and condominiums are not places of public accommodation See Hanks v. Tilley, No. 1:98CV00789, 1999 WL 1068484, at *2 (M.D.N.C. Feb. 2, 1999); Indep. Hous. Servs. v. Fillmore Ctr. Assocs., 840 F. Supp. 1328, 1344 n. 14 (N.D. Cal. 1993). And the cooperative apartment in issue, just like the residences in Hanks and Fillmore, is not a place of public accommodation. Consequently, Plaintiff has no claim under the ADA.

As stated in the House Report:

Only nonresidential facilities are covered by this title. For example, in a large hotel that has a residential apartment wing, the residential wing would be covered under the Fair Housing Act, rather than by this title. The nonresidential accommodations in the rest of the hotel would be covered by this title.

H.R. Rep. No. 101-485 (11), at 100.

III. Conclusion

Since May 1997, Plaintiff's pursuit of shares of Defendant Granville Trust has taken a number of disappointing turns, both in and out of court. Certainly, Plaintiff's hodgepodge complaint brings to light the intense frustration that Plaintiff has experienced because of these events. Nonetheless, even after investing much time to parse through Plaintiff's complaint, we are convinced that Plaintiff has failed to outline any facts to show that he is entitled to relief under the Equal Protection Clause of the Fourteenth Amendment or any of the statutes cited herein.

Thus, for the reasons stated, this Court grants Defendants' motion to dismiss. Plaintiff's claim under § 1988(b) for attorney's fees is dismissed because Plaintiff is not the prevailing party.