United States District Court, D. Kansas
MARCIA L. JACKSON, Plaintiff,
PARK PLACE CONDOMINIUMS ASSOCIATION, INC., Defendant.
MEMORANDUM AND ORDER
CARLOS MURGUIA, District Judge.
Plaintiff Marcia L. Jackson, proceeding pro se, filed suit against defendant Park Place Condominiums Association, Inc., seeking damages under 28 U.S.C. § 1343 for alleged violations of her civil rights. Specifically, plaintiff claims that defendant discriminated against her on the basis of her race (African-American) during her tenancy in one of defendant's condominium units. This matter is before the court on defendant's Motion for Summary Judgment (Doc. 68).
Defendant set forth a total of thirty-nine statements of fact in support of its summary judgment motion. In her opposition briefing (and the supplements plaintiff has since filed), plaintiff failed to comply with the applicable rules of civil procedure and the local rules of this court, even though defendant gave proper notice under Local Rule 56(f). (Doc. 69.) However, because of plaintiff's status as a pro se litigant, the court will construe plaintiff's response more liberally than it might construe a response filed by a licensed attorney. Hall v. Bellmon, 935 F.2d 1106, 1110 & n.3 (10th Cir. 1991) (citing Overton v. United States, 925 F.2d 1282 (10th Cir. 1990) for the proposition that liberal construal of pro se pleadings includes review of summary judgment briefs). As such, the court will deem admitted those facts to which plaintiff wholly failed to respond or otherwise controvert. Moreover, to the extent plaintiff has declared defendants' factual assertions as contested, but where she failed to specifically controvert those assertions, the court deems those facts admitted as well. D. Kan. Rule 56.1(a) ("All material facts set forth in the statement of the movant will be deemed admitted for the purpose of summary judgment unless specifically controverted by the statement of the opposing party.").
Defendant in this case is Park Place Condominiums Association, Inc. ("Park Place"), which is governed by a Home Owners' Association ("HOA") Board. From January 2011 to January 2012, Marcia Cooper was President of the HOA Board. Plaintiff was not a unit owner but rather rented a condominium unit owned by Jake Hurley from April 2011 to February 2012. The HOA Board had no control over Hurley's action in renting his unit to plaintiff, and neither supported nor opposed it.
During her tenancy at Park Place, plaintiff had disputes with some of her neighbors about the amount of noise coming from her unit. One of plaintiff's neighbors, Maria Grazia Serra, lived directly below plaintiff. Plaintiff alleges that she was accused of playing loud music at 3:00 a.m. and of walking too loudly and that Ms. Grazia Serra would beat on plaintiff's ceiling. At one point, Ms. Grazia Serra filed a civil lawsuit against plaintiff in the District Court of Johnson County, Kansas. See Marcia Grazia Serra v. Marci Jackson and Jacob Hurley, Case No. 12CV00958. The lawsuit was resolved by default judgment against plaintiff, in which the court found that plaintiff "regularly and intentionally engaged in or permitted offensive, improper and/or unlawful activities with substantial certainty that such activities will interfere with [Ms. Grazia Serra's] use and enjoyment of her property." (Doc. 68-1 at 1.) The lawsuit was neither approved of, nor controlled or supported by, the HOA Board.
Ms. Cooper testified that she and other HOA representatives attempted to mediate the disputes over noise between plaintiff and her neighbors, that she explained to plaintiff on more than one occasion what the Park Place noise standards were, and that the HOA never fined or reprimanded plaintiff for the excessive noise coming from her unit. (Doc. 68-1 at 1-2.) During her tenancy, plaintiff never came to a HOA meeting, nor did she present any written grievance on any subject. ( Id. at 2.)
Plaintiff now claims that defendant "harassed, intimidated, and tormented her, endangered her safety, inflicted criminal hate and fear upon her, caused unexpected visits and phone calls to her by home owners members, to include accusations of playing loud black music at 3:00 a.m., walking too hard, and beating on her ceiling when she was watching TV." (Doc. 65 ¶ 3.a.)
Plaintiff also claims that defendant caused her to wait three months to have her name placed on her mailbox and then three days later caused her nametag to be ripped off and discarded on the floor of the breezeway. (Doc. 65 at 3, ¶ 3.a.) While defendant claims that plaintiff never informed it that her nametag had been ripped off, plaintiff claims she told Ms. Cooper that she (plaintiff) suspected Ms. Grazia Serra. (Doc. 70-3 at 3.) Plaintiff also asserts that defendant caused the decals on her car to be pried off. (Doc. 65 at 3, ¶ 3.a.)
A. Legal Standards
Plaintiff does not set forth under what federal statute she is pursuing her housing discrimination claim. Defendant characterizes plaintiff's allegations as arising under 42 U.S.C. § 1981, which prohibits racial discrimination in the making, performance, modification, and termination of contracts. Hampton v. Dillard Dep't Stores, Inc., 247 F.3d 1091, 1102 (10th Cir. 2001). However, 42 U.S.C. § 1982 prohibits racial discrimination in the sale and rental of property, Kelly v. U.S. Dep't of Justice, No. 03-4137-JAR, 2003 WL 22533562, at *2 (D. Kan. Oct. 31, 2003), and the Fair Housing Act ("FHA") makes it unlawful 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, color, religion, sex, or national origin." Zhu v. Fisher, Cavanaugh, Smith & Lemon, P.A., 151 F.Supp.2d 1254, 1258 (D. Kan. 2001) (quoting 42 U.S.C. § 3604(b)).
The court construes plaintiff's allegations in this lawsuit as asserting a claim of hostile housing environment. Whether that claim arises under the § 1981, § 1982, or the FHA is not significant here, however, because plaintiff cannot establish a prima facie case.
Plaintiff presents no direct evidence of housing discrimination, so the court applies the burden-shifting framework articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). Smith v. Mission Assocs. Ltd. P'ship, 225 F.Supp.2d 1293, 1298-99 (D. Kan. 2002) (stating that, because plaintiffs alleged direct evidence of housing discrimination, the McDonnell Douglas burden-shifting framework did not apply); see also Perry v. Woodward, 199 F.3d 1126, 1134 (10th Cir. 1999) (burden-shifting framework applies to § 1981 claim); Asbury v. Brougham, 866 F.2d 1276, 1279 (10th Cir. 1989) (burden-shifting framework applies to § 1982 and FHA claims). Under McDonnell Douglas, plaintiff first must present a prima facie case of discrimination. If plaintiff proves a prima facie case, the burden shifts to defendant to produce evidence ...