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Ngiendo v. Pep-Ku, LLC

United States District Court, D. Kansas

July 30, 2019



          Sam A. Crow, U.S. District Senior Judge

         This is an action alleging violations of the federal Fair Housing Act and making state law claims. Plaintiff is pro se and proceeding in forma pauperis. In her original complaint, plaintiff alleged that she was a 46-year old black woman from Kenya who was subjected to a hostile housing environment after three much younger white university students - defendants Amelia Ludlow, Madison Cline and Lucy Evans - moved into an apartment which she had leased from defendant Pep-KU, LLC. According to the original complaint, problems developed almost immediately when Ludlow and Cline moved into the apartment on August 15, 2017. There was an argument which led to a police call on August 27, 2017, according to the original complaint.[1] An eviction proceeding against plaintiff was initiated and continued into September 2017. This led to plaintiff moving out on September 30, 2017.

         Ruling upon motions to dismiss the original complaint filed by Pep-KU and Ludlow, the court held that the original complaint failed to state a federal cause of action. Doc. No. 16. The court dismissed the original complaint but permitted plaintiff to file an amended complaint which is Doc. No. 27.

         This case is now before the court upon three motions to dismiss the amended complaint for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6). Doc. Nos. 32, 33 and 57. The motions are filed on behalf of defendants Pep-KU, LLC, Amelia Ludlow and Madison Cline. Plaintiff has filed a motion for leave to file a surreply relating to Ludlow's motion to dismiss. Doc. No. 60. Ludlow has filed a motion to strike plaintiff's surreply. Doc. No. 58.

         Also pending before the court is plaintiff's motion for leave to file a third amended complaint or in the alternative to supplement (Doc. No. 48) with two affidavits in support (Doc. Nos. 49 & 53). On plaintiff's motion (Doc. No. 44), the court has dismissed without prejudice defendant Lucy Evans, who has not been served with process. Doc. No. 46. However, plaintiff's recently filed proposed third amended complaint (Doc. No. 64) again names Evans as a defendant.

         I. Pro se standards

          “A pro se litigant's pleadings are to be construed liberally and held to a less stringent standard than formal pleadings drafted by lawyers.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). A pro se litigant, however, is not relieved from following the same rules of procedure as any other litigant. See Green v. Dorrell, 969 F.2d 915, 917 (10th Cir. 1992). A district court should not “assume the role of advocate for the pro se litigant.” Hall, supra. Nor is the court to “supply additional factual allegations to round out a plaintiff's complaint.” Whitney v. State of New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997).

         II. Rule 12(b)(6) standards

         When deciding whether plaintiff's complaint “fails to state a claim upon which relief may be granted, ” the court must determine whether the complaint contains “sufficient factual matter, accepted as true, to ‘state a claim for relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A complaint will not “suffice if it tenders ‘naked assertion[s]' devoid of ‘further factual enhancement.'” Id. (quoting Twombly, 550 U.S. at 557).

The plausibility standard is not akin to a “probability requirement, ” but it asks for more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are “merely consistent with” a defendant's liability, it “stops short of the line between possibility and plausibility of ‘entitlement to relief.'”

Id. (quoting Twombly, 550 U.S. at 557). A plausibility analysis is a context-specific task depending on a host of considerations, including judicial experience, common sense and the strength of competing explanations for the defendant's conduct. See id. at 679; Twombly, 550 U.S. at 567. Overly general allegations may not nudge “claims across the line from conceivable to plausible.” Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008)(quoting Twombly, 550 U.S. at 570). A prima facie case is not required, but the court may refer to the standards for a prima facie case to determine whether a plausible claim has been stated. Khalik v. United Air Lines, 671 F.3d 1188, 1192 (10th Cir. 2012).

         III. The amended complaint - Doc. No. 27

         The amended complaint alleges that defendant Pep-KU, LLC operates a housing complex called “the Reserve” geared toward university students in Lawrence, Kansas. Plaintiff, who is black and a native Kenyan, began living at the Reserve in April 2016. More than a year later, in August 2017, three white roommates were assigned to live in plaintiff's apartment. These were defendants Amelia Ludlow and Madison Cline (who were long-time friends), and Lucy Evans who was from the United Kingdom. The unit had four bedrooms - one for each occupant - and two bathrooms, a kitchen and a living area which were shared.

         Plaintiff alleges that she was constructively evicted from the apartment because: a) her milk would constantly go bad, suggesting that it was taken out of the refrigerator intentionally to spoil and later returned to the refrigerator; b) her roommates would hide the television remote control; c) Evans left her dirty undergarment on plaintiff's clean bath towel in the bathroom plaintiff shared with Evans, but did not “sincerely apologize” when caught in the act (Doc. No. 27, p. 5); d) Evans created a scene when plaintiff told her she needed to remove herself from Ludlow and Cline's situation; e) Ludlow, Cline and Evans would take over the living room and dining tables, leaving plaintiff to sit in her bedroom and consume meals; f) violent malicious notes were placed around the kitchen as harassments; and g) Ludlow, Cline and Evans ran up a very large electricity bill and Ludlow wasted electricity by leaving fans on while gone, but all three women never paid each one's share. Plaintiff further alleges that Ludlow played very loud music and one day played “very loudly n---a music.”[2] Doc. No. 27, p. 4. She also alleges that once Ludlow's boyfriend brought nine men to their very small living room.

         As evidence of intentional racial discrimination, the amended complaint alleges that Ludlow commented to Cline's mother when Ludlow and Cline were moving in, that Cline will “help move her out.”[3] Doc. No. 27, p. 3. Plaintiff understood this as referencing plaintiff. Plaintiff further alleges: that Ludlow and Cline made “harassing comments” suggesting they needed the pantry, cupboards and drawers for themselves and made the kitchen a hostile place for white tenants use only; that plaintiff was subjected to intrusive loud music without protection by the landlord; that in July 2017, before Cline, Ludlow and Evans moved in, a manager for the landlord asked, with a tone offensive to plaintiff, where she was from and then left in a very cold manner; that the manager never apologized after plaintiff was locked out of her housing and sought help from an inebriated staff member who left her standing out in the cold for an hour and forty minutes;[4] and that the manager turned up loud music when plaintiff was filling out a lease agreement form even though plaintiff was trying to make phone calls. Doc. No. 27, pp. 6-7.

         IV. The Fair Housing Act

         The court construes plaintiff's claims as being brought under Title VIII of the Civil Rights Act of 1968, also known as the Fair Housing Act, 42 U.S.C. §§ 3601-3631. Under 42 U.S.C. § 3604(b), it is unlawful “[t]o 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, familial status, or national origin.” The Act also 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 . . . 3604 . . . of this title.” 42 U.S.C. § 3617. These sections have been interpreted to prohibit discriminatory harassment that unreasonably interferes with the use and enjoyment of a home, i.e., a hostile housing environment. Wetzel v. Glen St. Andrew Living Community, LLC, 901 F.3d 856, 861 (7th Cir. 2018).

         V. Hostile housing environment

         This court has stated that the elements necessary for a prima facie case of hostile housing environment are: 1) plaintiff is a member of a protected class; 2) the conduct was unwelcome; 3) the conduct was based on the plaintiff's protected characteristic; 4) it was sufficiently severe or pervasive to alter the plaintiff's living conditions and create an abusive environment; and 5) defendant knew or should have known about the harassment. Smith v. Mission Assocs. Ltd. P'ship, 225 F.Supp.2d 1293, 1298-99 (D. Kan. 2002); see also Jackson v. Park Place Condominiums Ass'n, Inc., 619 Fed.Appx. 699, 703 (10th Cir. 2015). The court finds that plaintiff has not alleged facts in the amended complaint which plausibly demonstrate that plaintiff's living conditions were sufficiently severe or pervasive to create an abusive environment; that the alleged harassment was based upon plaintiff's race; or that PEP-KU knew or should have known about the harassment.

         A. Severe and pervasive

         In the order ruling upon the previous motions to dismiss, the court described the strong showing necessary to state a claim for a hostile housing environment.

To state a claim for a hostile housing environment, the offensive behavior must be severe or pervasive, not isolated or trivial. Honce v. Vigil, 1 F.3d 1085, 1090 (10th Cir. 1993). Casual . . . manifestations of a discriminatory environment are insufficient. Id. “Hostile environment claims usually involve a long-lasting pattern of highly offensive behavior.” Id. . . . “Whether an environment is illegally hostile or abusive ‘can be determined only by looking at all the circumstances, and factors may include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with [the use and enjoyment of the premises].'” [Jackson, 619 Fed.Appx. at 704 (quoting DiCenso v. Cisneros, 96 F.3d 1004, 1008 (7th Cir. 1996))].

Doc. No. 16, p. 7. See also, Mohamed v. McLaurin, 2019 WL 2296181 *19-20 (D.Vt. 5/30/2019)(requiring proof of discriminatory harassment making the residence unfit for occupancy). In the context of a hostile work environment claim, the Tenth Circuit has stated that the law does not establish a general civility code for the workplace and that “'run-of-the-mill boorish, juvenile, or annoying behavior that is not uncommon . . . is not the stuff'” of a hostile environment claim. Payan v. United Parcel Service, 905 F.3d 1162, 1170-71 (10th Cir. 2018) quoting Morris v. City of Colorado Springs, 666 F.3d 654, 664 (10th Cir. 2012). In Payan, the court described disrespectful, critical and condescending behavior by a supervisor toward the plaintiff during weekly conference calls, but the Tenth Circuit held it was not objectively sufficient to create a hostile working environment. 905 F.3d at 1171-72.

         The court finds that plaintiff's amended complaint does not plausibly describe severe and pervasive behavior which reaches the standard for a hostile living environment. Plaintiff's claim of “violent malicious” notes left around the kitchen cannot support a claim of severe and pervasive behavior because the allegation is too general. Plaintiff does not describe the language on the notes in the amended complaint or indicate that she objected to defendants about the notes.[5] Plaintiff's other claims also do not describe a severe and abusive environment. She suspects, because her milk prematurely spoiled, that one or more of her roommates left plaintiff's milk out and then put it back in the refrigerator.[6]She believes that one or more of her roommates hid the remote control.[7] She claims her roommates took over the living room and dining tables. And, she further claims that Ludlow played loud music. How often and how long this occurred around plaintiff is not specified. The amended complaint indicates that Ludlow played very loud music “the first time” and that Ludlow again played very loud intrusive music when plaintiff was moving out. Doc. No. 27, p. 8. The word “n---a” in the music was offensive to plaintiff because of the animosity or ridicule she felt from her roommates.[8]But, plaintiff's feelings are not sufficient under the law to describe a plausible claim of a hostile housing environment. See Morris, 666 F.3d at 664 (severity of alleged harassment must be determined from the perspective of a reasonable person in plaintiff's position). Situations which may reasonably give rise to wounded feelings will not on that account be considered severe or pervasive. Id. citing and quoting EEOC v. Sunbelt Rentals, Inc., 521 F.3d 306, 315 (4th Cir. 2008). All of the alleged harassment ...

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