Hicks v. Skaar

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT TACOMA 9 10 ALICE HICKS, CASE NO. C20-5100 RJB 11 Plaintiff, ORDER ON DEFENDANTS’ 12 v. MOTION TO DISMISS, OR, IN THE ALTERNATIVE, MOTION 13 THOMAS CLIFFORD SKAAR, TRACY FOR SUMMARY JUDGMENT SKAAR, PRINCETON PROPERTY 14 MANAGEMENT, and EVERGREEN VANCOUVER APARTMENTS, LLC, 15 Defendants. 16 17 This matter comes before the Court on Defendants Thomas Clifford Skaar, Tracy Skaar, 18 and Princeton Property Management and Evergreen Vancouver Apartments, LLC,’s Motion to 19 Dismiss or in the Alternative, for Summary Judgment (Dkt. 70). Plaintiff alleges that 20 Defendants racially discriminated against her when opting not to renew her tenancy lease. Dkts. 21 67; 70. The Court has considered the pleadings filed in support of and in opposition to the 22 motion and the file herein. Defendants’ motion to dismiss should be granted, and in light of the 23 Court’s decision that summary judgment should be granted, Plaintiff’s complaint should be 24 dismissed without leave to amend. 1 I. RELEVANT FACTS AND PROCEDURAL HISTORY 2 A. FACTS 3 Plaintiff, Alice Hicks, who is proceeding pro se, is a former a tenant of the Evergreen Village 4 Apartments in Vancouver, Washington. Defendants are Princeton Property Management, which 5 manages Evergreen Village, and Evergreen Vancouver Apartments, LLC, Thomas Clifford 6 Skaar, and Tracey Lee Skaar, owners of Evergreen Village. Dkts. 67 and 70. Ms. Hicks, who 7 describes herself as a “Black American” (Dkt. 76), alleges that Defendants evicted her because 8 of her race in violation of the Fair Housing Act, 42 U.S.C. § 3601, et seq. Dkt. 67. Subsequent 9 filings indicate that Ms. Hicks was not evicted; instead, Defendants opted not to renew her lease 10 at the end of its natural term. Dkts. 71, 72-1, 74-1. 11 Ms. Hicks moved into the Evergreen Apartments with her two adult children in September 12 2016. Dkt. 72-1. Hicks signed a yearlong rental agreement, which expired on August 31, 2017, 13 but it allowed for a month-to-month lease unless “either Owner/Agent or Resident gives the 14 other written notice at least 20 days prior to the end of the term that the party elects not to 15 commence the new tenancy.” Id. On May 12, 2017, management notified Ms. Hicks that it 16 would not extend her lease beyond its August 31 termination. Dkt. 72-2. 17 Defendants claim the decision not to extend Ms. Hicks’ lease was made because of her 18 “pattern of excessive and unsubstantiated complaints against her neighbors,” which “rose to the 19 level of harassing[.]” Dkt. 70 at 14. Defendants substantiate this claim with numerous emails 20 between Hicks and management, the record from a state administrative matter, and declarations 21 by management. Dkts. 71, 72, 73, 74. 22 Emails from September and October 2016 show that Ms. Hicks contacted management about 23 “very loud volatile nuisance noise” coming from the unit above her, claimed drug fumes coming 24 1 from that apartment into her own, and stated her belief that the noise and harassment were an 2 attempt to “harass us out of our apartment.” Dkt. 72-3. On November 18, 2016, Hicks emailed 3 claiming, “the harassing noise problem . . . is organized and set up by a man who comes to [unit 4 27] regularly in a white van.” Id. at 9. Hicks claimed the residents of unit 27 “use noise to harass 5 us” by “stomping and jumping around the apartment [which] caused the paint dust particles to 6 fall from the ceiling, which is a health hazard.” Id. 7 Defendants provide evidence that management investigated Ms. Hicks’ complaints, in one 8 instance issued a Notice of Disturbance based on Plaintiff’s noise complaint, but it found no 9 evidence of either drug use or drug making. Dkts. 71, 72-3, 72-4. On May 8, 2017, Ms. Hicks 10 contacted her Congresspersons, the DEA, and ICE about her suspicions of her neighbors. Dkt. 11 72-3. On May 12, 2017, Evergreen Village notified Ms. Hicks that it would not renew her lease 12 at the end of its term. Dkt. 72-2. Management, however, allowed Hicks to remain at Evergreen 13 Village until on or near October 23, 2017, when she moved elsewhere. Dkt. 74-1. 14 On February 6, 2018, Ms. Hicks filed a complaint alleging racial discrimination with the 15 Washington State Human Rights Commission (“WSHRC”). Dkt. 74-1. WSHRC investigated 16 and found “[t]he preponderance of the evidence does not support a finding that [Evergreen 17 Village] discriminated against [Hicks] based on race.” Id. at 7. 18 B. PROCEDURAL HISTORY AND PENDING MOTION 19 Defendants filed the pending motion, Defendants’ Motion to Dismiss or, in the Alternative, 20 for Summary Judgment (Dkt. 70), along with supporting declarations, most of which contain 21 multiple exhibits (Dkts. 71, 72, 73, 74, 85, 86). Ms. Hicks responded to the motion to dismiss 22 multiple times (Dkts. 76, 81, 87) and filed a supporting declaration with exhibits that correspond 23 to evidence used in the WSHRC investigation. (Dkt. 107). Defendants replied to Ms. Hicks’ 24 1 response (Dkt. 109), and Ms. Hicks also filed a reply (Dkt. 110). The Court issued Ms. Hicks a 2 “Rand” warning (Dkt. 100). 3 II. DISCUSSION 4 A. MOTION TO DISMISS STANDARD 5 Fed. R. Civ. P. 12(b) motions to dismiss may be based on either the lack of a cognizable legal 6 theory or the absence of sufficient facts alleged under a cognizable legal theory. Balistreri v. 7 Pacifica Police Department, 901 F.2d 696, 699 (9th Cir. 1990). Material allegations are taken as 8 true and the complaint is construed in the plaintiff's favor. Keniston v. Roberts, 717 F.2d 1295 9 (9th Cir. 1983). “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need 10 detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to 11 relief requires more than labels and conclusions, and a formulaic recitation of the elements of a 12 cause of action will not do.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 554-55 (2007) 13 (internal citations omitted). “Factual allegations must be enough to raise a right to relief above 14 the speculative level, on the assumption that all the allegations in the complaint are true (even if 15 doubtful in fact).” Id. at 555. The complaint must allege “enough facts to state a claim to relief 16 that is plausible on its face.” Id. at 547. 17 On a 12(b)6) motion, “a district court should grant leave to amend even if no request to 18 amend the pleading was made, unless it determines that the pleading could not possibly be cured 19 by the allegation of other facts.” Cook, Perkiss & Liehe v. N. Cal. Collection Serv., 911 F.2d 20 242, 247 (9th Cir. 1990). 21 B. DEFENDANTS’ MOTION TO DISMISS SHOULD BE GRANTED 22 Ms. Hicks’ complaint does not sufficiently allege that the decision not to renew her lease was 23 plausibly made because of racial discrimination. 24 1 Pursuant to the Fair Housing Act, it is unlawful “to discriminate against any person in the 2 terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services of 3 facilities in connection therewith, because of race[.]” 42 U.S.C. § 3604(b). Plaintiff makes a 4 claim of “disparate treatment” under the Fair Housing Act because she claims Defendants treated 5 her differently because of her race. See Gamble v. City of Escondido, 104 F.3d 300, 304–05 (9th 6 Cir. 1997). “Proof of discriminatory motive is crucial to a disparate treatment claim.” Id. at 305. 7 The complaint includes a cognizable legal theory. Hicks claims that she and her family are 8 Black American, that they “met the minimum qualifications to reside on the property,” and that 9 Defendants terminated her tenancy despite the fact that “similarly situated tenants who are non- 10 Black American are not subjected to such eviction proceedings.” Dkt. 61 at 8. Hicks claims that 11 she was harmed because she was forced to move to an apartment further away from public 12 transportation, which is physically distressful because of her walking disability. Id. at 9. 13 Assuming the allegations are true and taken in the light most favorable to Plaintiff, the 14 complaint, however, fails because Ms. Hicks’ conclusory allegation that Defendants treated non- 15 Black American tenants differently than her makes the claim for relief theoretically possible, but 16 it alone does not make the claim plausible. 17 Hicks subsequently makes clear that she also seeks relief under Washington State law. Dkts. 18 67 and 110. While generally the remedy both for failure to include state law claims and for the 19 deficiency in the Fair Housing Act claim would be granting leave to amend the complaint, here 20 amendment would be futile because summary judgment is appropriate, and because the 21 Washington Landlord-Tenant Act, RCW 59.18, would provide no relief to Plaintiff. 22 Defendants’ Motion to Dismiss (Dkt. 70) should be granted. 23 24 1 C. SUMMARY JUDGMENT STANDARD 2 Unlike when deciding a motion to dismiss, on a summary judgment motion, the court 3 considers information outside of the complaint. Summary judgment is proper only if the 4 pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no 5 genuine issue as to any material fact and that the movant is entitled to judgment as a matter of 6 law. Fed. R. Civ. P. 56 (a). The moving party is entitled to judgment as a matter of law when the 7 nonmoving party fails to make a sufficient showing on an essential element of a claim in the case 8 on which the nonmoving party has the burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 9 323 (1985). There is no genuine issue of fact for trial where the record, taken as a whole, could 10 not lead a rational trier of fact to find for the nonmoving party. Matsushita Elec. Indus. Co. v. 11 Zenith Radio Corp., 475 U.S. 574, 586 (1986) (nonmoving party must present specific, 12 significant probative evidence, not simply “some metaphysical doubt.”). Conversely, a genuine 13 dispute over a material fact exists if there is sufficient evidence supporting the claimed factual 14 dispute, requiring a judge or jury to resolve the differing versions of the truth. Anderson v. 15 Liberty Lobby, Inc., 477 U.S. 242, 253 (1986); T.W. Elec. Service Inc. v. Pacific Electrical 16 Contractors Association, 809 F.2d 626, 630 (9th Cir. 1987). 17 To determine the existence of a genuine question of material fact, the court must consider 18 the substantive evidentiary burden that the nonmoving party must meet at trial – e.g., a 19 preponderance of the evidence in most civil cases. Anderson, 477 U.S. at 254, T.W. Elect. 20 Service Inc., 809 F.2d at 630. The court must resolve a disputed factual issue in favor of the 21 nonmoving party when the facts specifically attested by that party contradict facts specifically 22 attested by the moving party. The nonmoving party may not merely state that it will discredit the 23 moving party’s evidence at trial, in the hopes that evidence can be developed at trial to support 24 1 the claim. T.W. Elect. Service Inc., 809 F.2d at 630 (relying on Anderson, supra). Conclusory, 2 non-specific statements in affidavits are insufficient, and “missing facts” will not be “presumed.” 3 Lujan v. National Wildlife Federation, 497 U.S. 871, 888-89 (1990). 4 D. DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD BE GRANTED 5 Summary judgment of this matter is appropriate because the pleadings, discovery, and 6 disclosures demonstrate that there is no genuine issue of material fact. 7 The plaintiff bears the initial burden in a disparate treatment claim and must allege that: “(1) 8 plaintiff’s rights are protected under the FHA; and (2) as a result of the defendant’s 9 discriminatory conduct, plaintiff has suffered a distinct and palpable injury.” Harris v. Itzhaki, 10 183 F.3d 1043, 1051 (9th Cir. 1999). If the plaintiff meets this burden, then the burden shifts to 11 the defendant “to articulate some legitimate, nondiscriminatory reason for the action.” Id. “[I]f 12 the defendant satisfies its burden, the plaintiff must prove by a preponderance of the evidence 13 that the reason asserted by the defendant is a mere pretext.” Gamble, 104 F.3d at 305. 14 Ms. Hicks has arguably met her initial burden. She alleges that she was discriminated 15 against in the rental of a dwelling because of her race, and she was forced to move to a new 16 apartment, far from public transportation, which is physically difficult and “distressful” for her, 17 because of the alleged discrimination. Dkt. 67 at 9. 18 Defendants, however, supply ample evidence to meet their burden of articulating a 19 nondiscriminatory reason not to renew Ms. Hicks’ lease. See Dkts. 72 and 74. Hicks had a long, 20 documented history of making noise and drug related complaints about her neighbors, which she 21 is free to do. Dkt. 72. Defendants submitted evidence that management investigated Hicks’ 22 complaints, that the complaints were generally unsubstantiated, but that they continued and 23 escalated. Dkt. 72-4. Eventually, Hicks reported neighbors to ICE, the DEA (Dkt. 74-1), and 24 1 her Congresspersons (Dkt. 74-6). Emails indicate that management notified her of the decision 2 not to renew her tenancy days after Hicks made those reports. Dkt. 74-5. Emails from that time 3 say management made its decision because Hicks’ allegations against her neighbors appeared to 4 be based on the race or national origin of the neighbors, her complaints appeared generally 5 unsubstantiated, and her actions “turned into harassment of the neighbors in question.” Dkt. 74- 6 5. Furthermore, although Defendants opted not to renew Hicks’ tenancy, Defendants allowed 7 Ms. Hicks to remain in the apartment until on or around October 23, 2017, when she found a 8 new apartment, nearly two months after the lease expired on August 31, 2017. Dkt. 74-1. 9 Summary judgment is appropriate because there is no genuine issue of material fact that Ms. 10 Hicks fails to meet her burden of proving that Defendants’ justification is a pretext. Hicks 11 claims she was treated differently than non-Black American tenants, which demonstrates racial 12 discrimination. Dkt. 76 at 6. The Washington Human Rights Commission considered this 13 argument during Hicks’ administrative claim and found that of the at least 16 tenancies 14 terminated during the relevant period, at least seven were Caucasian, six were Hispanic, one was 15 African American and Hispanic, and three were unknown. Dkts. 74-1; 107 at 6. This history 16 does not demonstrate a pattern of discrimination against Black American tenants, which could 17 indicate discrimination against Hicks. Ms. Hicks claims that non-Black American tenants were 18 given notice that their behavior put them at risk of lease non-renewal but she was not given 19 notice of the possibility of non-renewal, and she argues that that discrepancy demonstrates 20 pretext. Dkt. 110, citing Washington Landlord-Tenant Act, Wash. Rev. Code 59.18. Even if 21 that discrepancy exists, it does not create a material issue of fact regarding discriminatory intent. 22 Plaintiff had a long history of communication with management, management appears to have 23 24 1 worked with her to investigate her claims, and the record demonstrates non-racially motivated 2 reasons not to renew her lease, and there is no proof that those reasons were pretextual. 3 Defendants’ Motion for Summary Judgment (Dkt. 70) should be granted. 4 III. ORDER 5 Therefore, it is hereby ORDERED that: 6 • Defendants’ Motion to Dismiss (Dkt. 70) IS GRANTED, without leave to amend 7 the complaint; 8 • Defendants’ Motion for Summary Judgment (Dkt. 70) IS GRANTED; 9 • Plaintiffs complaint IS DISMISSED. 10 The Clerk is directed to send uncertified copies of this Order to all counsel of record and 11 to any party appearing pro se at said party’s last known address. 12 Dated this 15th day of October, 2020. 13 A 14 15 ROBERT J. BRYAN United States District Judge 16 17 18 19 20 21 22 23 24