Clark v. GSL Props.

1

BROOKLYNN C. CLARK, Plaintiff, v. GSL PROPERTIES, INC., CBRE GWS REAL ESTATE SERVICES, INC., ONE + THREE CENTERPOINTE DRIVE, MONICA ULRIG, ANTHONY DOE, JOHN DOE, JON/JANE DOES 1-20, BRYCE SIEBENTHALL, and KIMBERLY CARPENTER, Defendants.

No. 3:24-cv-00409-SB

United States District Court, D. Oregon

November 27, 2024

ORDER

Adrienne Nelson, District Judge

United States Magistrate Judge Stacie F. Beckerman issued a Findings and Recommendation ("F&R") in this case on August 26, 2024, ECF [13], in which she recommended that this Court dismiss plaintiff's First Amended Complaint, ECF [12], for failure to state a claim. Plaintiff timely filed objections. See Pl. Objs. to F&R ("Objs."), ECF [15]. The matter is now before this Court pursuant to 28 U.S.C. § 636(b)(1)(B) and Federal Rule of Civil Procedure 72(b).

A district judge may "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1). If any party files objections to a magistrate judge's proposed findings and recommendations, "the court shall make a de novo determination of those portions of the report." Id. No standard of review is prescribed for the portions of the report for which no objections are filed, and no review is required in the absence of objections. Thomas v. Arn, 474 U.S. 140, 152-54 (1985). A district court judge is not, however, precluded from sua sponte review of other portions of the report, under a de novo standard or otherwise. Id. at 154. The Advisory Committee notes to Federal Rule of Civil Procedure 72(b) recommend that, when no objection is filed the recommendations be reviewed for "clear error on the face of the record." Fed.R.Civ.P. 72(b) advisory committee's note to 1983 amendment.

DISCUSSION

Plaintiff a self-represented litigant, brings this action against defendants GSL Properties, Inc. ("GSL"), CBRE GWS Real Estate Services, Inc. ("CBRE"), One &amp Three Centerpointe Drive ("One & Three"), Monica Ulrig, Bryce Siebenthall, Kimberly Carpenter, Anthony Doe, John Doe, and Jon and Jane Does 1 to 20. Plaintiff alleges discrimination claims based on sex, gender, race, and disability in violation of the Fair Housing Act ("FHA"), Title VII of the Civil Rights Act of 1968 ("Title VII"), and the Americans with Disabilities Act ("ADA"). First Am. Compl. ("FAC"), ECF [12], ¶¶ 1, 3, 33-49. The relevant facts, derived from the amended complaint, are set forth in the F&R.^[1] Put succinctly, plaintiff alleges that defendants discriminated against her based on her identity as a Black, transgender woman with a disability. F&R 3-5. The alleged discrimination includes disparate, unlawful rent increases; baseless phone calls being placed to law enforcement regarding plaintiff; and the unlawful retention of plaintiff's security deposit. Id.

On April 22, 2024, Judge Beckerman granted plaintiff's application for leave to proceed in forma pauperis and ordered plaintiff to show cause why her complaint should not be dismissed for failure to state a claim or, in the alternative, to file an amended complaint. Order of April 22, 2024, ECF [7], at 11. On August 2, 2024, plaintiff filed a First Amended Complaint. On August 26, 2024, Judge Beckerman issued the F&R, recommending that this Court dismiss the amended complaint for failure to state a claim.

Plaintiff timely filed objections to the F&R. Plaintiff's objections can be summarized as follows: (1) the F&R erroneously finds that her amended complaint fails to state a claim, especially with regard to plaintiff's allegations against CBRE, One & Three, Anthony Doe, John Doe, and Jon and Jane Does 1 to 20; (2) it was error to dismiss the case before allowing plaintiff the opportunity to conduct additional discovery and introduce additional evidence, especially because whether there is sufficient evidence of discrimination is a question to be decided by a jury; and (3) plaintiff was unfairly "rushed" into amending her complaint while undergoing significant personal hardship. Plaintiff's objections are addressed in turn.

A. Sufficiency of Factual Allegations

Plaintiff first generally objects to the F&R's finding that the amended complaint does not allege sufficient facts to state a claim. Plaintiff does not object to this finding as it relates to her Title VII claim. Plaintiff generally objects that her ADA claim should survive but does not specifically object to the F&R's finding that plaintiff has not alleged that any of the defendants are a private entity that owns, leases, or operates a place of public accommodation. Consequently, finding no clear error, the Court adopts the F&R's findings as to plaintiff's Title VII and ADA claims and addresses plaintiff's first objection only as it applies to her FHA claim.

"The threshold for pleading discrimination claims under the [FHA] is low." McGary v. City of Portland, 386 F.3d 1259, 1262 (9th Cir. 2004). For such claims, there is "a powerful presumption against rejecting pleadings for failure to state a claim." Gilligan v. Jamco Dev. Corp., 108 F.3d 246, 249 (9th Cir. 1997) (internal quotation marks omitted) (quoting Auster Oil & Gas, Inc. v. Stream, 764 F.2d 381, 386 (5th Cir. 1985)); see McGary, 386 F.3d at 1262. A plaintiff is required to allege only "a short and plain statement of the claim showing that the pleader is entitled to relief." McGary, 386 F.3d at 1262 (internal quotation marks omitted) (quoting Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002)). Additionally, self-represented litigants' pleadings are "held to less stringent standards than formal pleadings drafted by lawyers," Florer v. Congregation Pidyon Shevuyim, N.A., 639 F.3d 916, 923 n.4 (9th Cir. 2011) (internal citation and quotation marks omitted), and must be liberally construed and afforded "the benefit of any doubt[,]" Boquist v. Courtney, 32 F.4th 764, 774 (9th Cir. 2022) (quoting Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010)).

The Ninth Circuit "appl[ies] Title VII discrimination analysis . . . [to FHA] discrimination claims." Harris v. Itzhaki, 183 F.3d 1043, 1051 (9th Cir. 1999) (quoting Gamble v. City of Escondido, 104 F.3d 300, 304 (9th Cir. 1997)). However, at the pleading stage, a plaintiff alleging an FHA discrimination claim need not make a prima facie showing under Title VII's McDonnell Douglas/Burdine burden shifting analysis. See Gilligan, 108 F.3d at 250 (citing Ortez v. Wash. Cnty., 88 F.3d 804, 808 (9th Cir. 1996)). Instead, courts should judge FHA claims "by the[ir] statutory elements[.]" Id. (citing Ring v. First Interstate Mortg., Inc., 984 F.2d 924, 926 (8th Cir. 1993)). Under the FHA, a plaintiff holds a private right of action if they are "an 'aggrieved person'" who has been "subjected to 'an alleged discriminatory housing practice.'" Id. (quoting 42 U.S.C. § 3613(a)(1)(A)). Housing practices considered to be discriminatory include race and sex discrimination "in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection therewith," 42 U.S.C. § 3604; the coercion, intimidation, threat, or interference "with any person in the exercise or enjoyment of . . . any right granted or protected by section . . . 3604," id. § 3617; and the use of different provisions in sale or lease contracts because of protected characteristics, including race, sex, and disability, 24 C.F.R. § 100.65(b)(1).

A plaintiff can establish an FHA discrimination claim under a theory of disparate treatment, disparate impact, or failure to make reasonable accommodations. Gibson v. Cmty. Dev. Partners, No. 3:22-cv-454-SI, 2022 WL 10481324, at *4 (D. Or. Oct. 18, 2022) (citing Gamble, 104 F.3d at 304-05; Ariz. Recovery Hous. Ass'n v. Ariz. Dep't of Health Servs., 462 F.Supp.3d 990, 1001 (D. Ariz. 2020)); see Budnick v. Town of Carefree, 518 F.3d 1109, 1113-14 (9th Cir. 2008). To assert a theory of disparate treatment, a plaintiff must allege that they are part of a protected class under the FHA and that the defendant's discriminatory conduct caused the plaintiff to "suffer[] a distinct and palpable injury." Harris, 183 F.3d at 1051. "[A]llegations that discrimination was a motivating factor behind a defendant's actions are essential to plead a disparate-treatment claim." Sw. Fair Hous. Council, Inc. v. Maricopa Domestic Water Improvement Dist., 17 F.4th 950, 972 (9th Cir. 2021).

To assert a theory of disparate impact, a plaintiff must allege "(1) the occurrence of certain outwardly neutral practices, and (2) a significantly adverse or disproportionate impact on persons of a particular type produced by the defendant's facially neutral acts or practices." Gibson, 2022 WL 10481324, at *5 (citing The Comm. Concerning Cmty. Improvement v. City of Modesto, 583 F.3d 690, 711 (9th Cir. 2009)). At the pleading stage, "[a] plaintiff must allege facts . . . demonstrating a causal connection." Id. (quoting Tex. Dep't of Hous. & Cmty. Affs. v. Inclusive Cmtys. Project, Inc., 576 U.S. 519, 545 (2015)).

To assert a theory of failure to make reasonable accommodations a plaintiff must allege that (1) the plaintiff "suffers from a [disability] as defined by the [FHA]"; (2) "the defendant 'knew or reasonably should have known' of the [disability]"; (3) "accommodation of the [disability] 'may be necessary' to afford the plaintiff an equal opportunity to use and enjoy his or her dwelling"; and (4) "the defendant 'refused to make such accommodation.'" Id. at *6 (internal alterations and question marks omitted) (quoting McGary, 386 F.3d at 1262); see Myers v. Highlands at Vista Ridge Homeowners Ass'n, Inc., No. 6:20-cv-00562-MK, 2022 WL 4452414, at *9 (D. Or. Sept. 8, 2022) (citing Giebeler v. M & B Assocs., 343 F.3d 1143, 1147 (9th Cir. 2003)), findings and recommendations...