David v. Whittaker

1

AMANDA DAVID, and ROOTWORK HERBALS, LLC, Plaintiffs, v. ROBERT WHITTAKER, JR., Defendant.

No. 3:24-CV-699

United States District Court, N.D. New York

October 17, 2024

CNY FAIR HOUSING, INC. CONOR J. KIRCHNER, ESQ. MATTHEW CASEY WEISSMAN-VERMEULEN, ESQ. Attorneys for Plaintiffs

WILLIAMSON, CLUNE & STEVENS SYED O. SHAH, ESQ. Attorneys for Defendant

DECISION AND ORDER

DAVID N. HURD United States District Judge

I. INTRODUCTION

In July 2021, plaintiff Amanda David (“Ms. David” or “plaintiff') purchased a home in the Town of Caroline, New York. Dkt. No. 1. She lived there with her three children and operated her business, Rootwork Herbals LLC (“Rootwork”). Id. Shortly after she and her family moved in, Ms. David's next-door neighbor Robert Whittaker, Jr. (“Whittaker” or “defendant”), began harassing her, her children, and her business's customers. Id. Defendant's conduct continued for nearly three years and culminating in criminal charges. Id.

On May 23, 2024, after nearly three years of Whittaker's harassment, Ms. David commenced this federal civil rights action. Dkt. No. 1. Defendant moved pursuant to Federal Rule of Civil Procedure (“Rule(s)”) 12(b)(6) to dismiss plaintiffs' complaint for failure to state a claim. Dkt. No. 8. Thereafter, plaintiff amended her complaint and defendant's motion was denied as moot. Dkt. Nos. 11-12.

Ms. David amended her complaint, joining plaintiff Rootwork to the action. Dkt. No. 11. Ms. David and Rootwork's (collectively, “plaintiffs”) amended complaint asserts claims for discrimination and/or retaliation under the Fair Housing Act of 1968 (the “Fair Housing Act”), 42 U.S.C. §§ 1981, 1982, and related portions of New York State law. Id.

On July 24, 2024, Whittaker moved pursuant to Rules 12(b)(1) and (6) to dismiss plaintiffs' amended complaint for lack of subject matter jurisdiction and for failure to state a claim. Dkt. No. 13. The motion has been fully briefed, Dkt. Nos. 14-15, and will be considered on the basis of the submissions without oral argument.

II. BACKGROUND

Ms. David is a forty-eight-year-old African American woman. Am. Compl. ¶ 5. She identifies as queer.^[1] Id. Ms. David is a gardener and community herbalist. Id. ¶ 9. She is also the creator, manager, and sole owner of Rootwork. Id. Through Rootwork, plaintiff provides “herbal medicine and access” to Black, Indigenous, and other people of color (“BIPOC”) as well as queer, and transgender individuals in the community. Id. Plaintiffs host community gatherings, courses, and certificate programs in-person on her property. Id.

In 2020, Ms. David and her three children began renting a home in the Town of Caroline, New York (the “Town”). Id. ¶ 8. Ms. David purchased the family home in 2021. Am. Compl. ¶ 18. Living directly adjacent to plaintiffs' property is Whittaker. Id. ¶ 15.

Shortly after purchasing her home, plaintiffs became the target of Whittaker's racial and sexual epithets. Id. ¶ 19. According to the amended complaint, defendant made these offensive racial and sexual statements to Ms. David and her children whenever he encountered them outside. Id. For instance, defendant expressed skepticism that plaintiff could afford her home and stated that the father of her children “must be rich.” Id.

Later that year, Ms. David had a fence installed around her property for privacy. Am. Compl. ¶ 20. But the fence did not dissuade Whittaker. Id. ¶ 23. Instead, he began using a step ladder to climb above the fence-line to continue to shout racist and sexist insults to Ms. David and her children. Id.

From here, Whittaker's insults only escalated. He began to harass David's children, even threatening to beat Ms. David's eldest son with a stick or a bat. Am. Compl. ¶ 27. Ms. David reached out to the Tompkins County Sheriff's Office to report the incident. Id. ¶ 29. Whittaker was later charged with criminal harassment in the second degree. Id. ¶ 30.

In November 2022, Whittaker took to firing his gun in his yard after a group of teenage customers arrived at plaintiffs' property for a Rootwork workshop. Am. Compl. ¶ 31. Defendant continued to hurl racist and sexual epithets at plaintiff. Id. ¶ 38. Thereafter, defendant began tampering with various sections of Ms. David's fence. Id. ¶¶ 32, 36. Defendant was later charged for a second time with criminal harassment in the second degree. Id. ¶ 41.

Whittaker's conduct escalated. He began placing various signs in the window of his garage that directly faced the Davids' home. Am. Compl. ¶¶ 42-43, 63-64. The signs were racially derogatory. Id. Defendant continued to shout racial and sexual epithets at Ms. David, her children, and Rootwork program participants. Id. ¶ 46.

In October 2023, Whittaker defaced a portion of Ms. David's fence with spray paint. Am. Compl. ¶ 50. In response, Ms. David installed security cameras to try to monitor any activity along her property line. Id. ¶ 51. The Town court subsequently issued a temporary order of protection against defendant that ordered him to “stay away from and refrain from harassing, communicating with, or otherwise contacting the David family.” Id. ¶ 52.

But Whittaker did not adhere to the terms of the order of protection: in December, defendant defaced the David's car with spray paint while it was parked in the driveway. Am. Compl. ¶ 53. Defendant was later charged with criminal harassment in the second degree. Id. ¶ 54. After pleading guilty to the charges, the charge was conditionally discharged by the Town court and defendant was ordered to stay away from the Davids for two years. Id.

The following month, Whittaker again vandalized the David's car. Am. Compl. ¶ 55. After another series of disputes regarding the David's and defendants' respective property lines, defendant used his pellet gun to shoot out a security light on Ms. David's chicken coop. Id. ¶¶ 57-60. Defendant was later charged with criminal mischief in the fourth degree and criminal contempt in the second degree. Id. ¶ 61. The Town court issued a new temporary order of protection and required defendant to surrender any pellet guns that he owned. Id. ¶ 62.

Whittaker pled guilty to criminal contempt in the second degree for his act of shooting the Ms. David's security camera out and violating the temporary order of protection. Am. Compl. ¶ 65. An order of protection was issued once again. Id. However, defendant continued to harass Ms. David and her children. Over the summer of 2024, defendant screamed racial epithets at Ms. David and her children at a volume that could be heard from inside the house. Id. ¶¶ 68-70.

Whittaker's continued harassment forced Rootwork to cancel some of its in-person courses and workshops. Am. Compl. ¶ 74. Of the programs that Rootwork has not cancelled, it has experienced a decline in enrollments due to participants' fears of harassment when they visit the property. Id. ¶ 75.

III. LEGAL STANDARD

A. Rule 12(b)(1)

“A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it.” Forjone v. Dep't of Motor Vehicles, 414 F.Supp.3d 292, 297-98 (N.D.N.Y. 2019) (cleaned up). Rule 12(b)(1) motions may be either facial or fact-based. Carter v. HealthPort Techs., LLC, 822 F.3d 47, 56 (2d Cir. 2016).

Facial Rule 12(b)(1) motions are “based solely on the allegations of the complaint . . . and exhibits attached to it[.]” Id. To resolve a facial motion, the district court must “determine whether the pleading alleges facts that affirmatively and plausibly suggest that the plaintiff has standing to sue.” Id. (cleaned up). In doing so, the district court “must accept the complaint's allegations as true and draw all reasonable inferences in favor of the plaintiff.” Wagner v. Hyra, 518 F.Supp.3d 613, 623 (N.D.N.Y. 2021) (quoting Nicholas v. Trump, 433 F.Supp.3d 581, 586 (S.D.N.Y. 2020)).

By contrast, a defendant who makes a fact-based Rule 12(b)(1) motion submits extrinsic evidence. Carter, 822 F.3d at 57. If defendant's extrinsic evidence reveals a dispute of fact whether jurisdiction is proper, plaintiff must proffer evidence to controvert defendant's evidence. Id. To resolve a fact-based motion, the district court must then make findings of fact to determine whether plaintiff has standing to sue. Id.

B. Rule 12(b)(6)

To survive a Rule 12(b)(6) motion to dismiss, the complaint's factual allegations must be enough to elevate the plaintiff's right to relief above the level of speculation. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). So while legal conclusions can provide a framework for the complaint, they must be supported with meaningful allegations of fact. Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). In short, a complaint must contain “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570.

To assess this plausibility requirement, the court must accept as true all of the factual allegations contained in the complaint and draw all reasonable inferences in the non-movant's favor. Erickson v. Pardus, 551 U.S. 89, 94 (2007). In doing so, the court generally confines itself to the facts alleged in the pleading, any documents attached to the complaint or incorporated into it by reference, and matters of which judicial notice may be taken. Goel v. Bunge, Ltd., 820 F.3d 554, 559 (2d Cir. 2016).

IV. DISCUSSION

Plaintiffs' amended complaint asserts claims for discrimination and retaliation under the Fair Housing Act (Count I), 42 U.S.C §§ 1981 and 1982 (Count II), and related portions of New York state law (Counts III & IV). Dkt. No. 11. Whittaker has moved to dismiss plaintiffs' amended complaint. Dkt. No. 13. Defendant argues that plaintiffs' amended complaint must be...