United States District Court, S.D. Texas, Houston Division
RICK R. SIMS, Plaintiff,
SHARON GAMBLE, et al., Defendants.
MEMORANDUM AND ORDER
F. ATLAS SENIOR JUDGE.
Rick R. Sims proceeds pro se and complains that his
application for housing development financing in Bryan,
Texas, was denied. Plaintiff originally brought this lawsuit
in the Western District of Louisiana. He sues four
Defendants: Sharon Gamble and Marni Holloway, both employees
of the State of Texas; the City of Bryan, Texas; and Alsie
Bond, an employee of the City of Bryan. On June 9, 2017,
while the case was pending in Louisiana, Defendants Gamble
and Holloway filed a Motion to Dismiss [Doc. # 13]
(“State Defendants' Motion”). Defendants City
of Bryan and Bond filed a Motion to Dismiss [Doc. # 20] on
June 29, 2017, and, after the case was transferred from the
Western District of Louisiana to this Court, filed a renewed
Motion to Dismiss [Doc. # 29] (“Bryan Defendants
Motion”). Plaintiff has not responded to any of the
Motions, and the time to do so has expired. The Motions now
are ripe for consideration. Having considered the
parties' submissions, all matters of record, and
applicable legal authorities, the Court determines that the
Motions to Dismiss should be granted and
Plaintiff's claims should be dismissed with prejudice. In
addition, Plaintiff's “Motion for Leave to File
Amended Complaint and Motion to Transfer to Multidistrict
Litigation” [Doc. # 18] will be denied
as futile and the Bryan Defendants' Unopposed Motion to
Stay Discovery [Doc. # 30] will be denied as
March 1, 2017, Plaintiff submitted an application to the
Texas Department of Housing and Community Affairs
(“TDHCA”) for a Competitive Housing Tax Credit.
First Amended Complaint [Doc. # 3] (“Complaint”),
at 7, ¶¶ 39, 44; State Defendants' Motion, at
1-2 & nn. 1 & 2. Plaintiff's application
pertained to Arlinda Gardens, a proposed low-income housing
project in Bryan, Texas, for which Plaintiff identifies as a
“potential resident.” Complaint, at 7, ¶ 39.
Plaintiff claims affiliation with a nonprofit organization
that seeks to provide housing for low-income residents.
Id. at 5-6, ¶¶ 25-26.
Gamble was Administrator of the Competitive Tax Credit
Program for TDHCA, and Defendant Holloway was TDHCA's
Director of Multi-Family Finance. On March 16, 2017,
Plaintiff received an email from Gamble notifying him that
Holloway had terminated his funding application. Id.
at 7, ¶ 44. Plaintiff states that the termination notice
identified deficiencies in the application, including that
his nonprofit organization did not qualify as a Community
Housing Development Organization under relevant law and that
Plaintiff did not report a particular school in the area as a
“negative site characteristic.” Id. at
7-8, ¶ 45. Defendants have supplied the Termination
Letter, which lists the above deficiencies in addition to
multiple others. See Letter from TDHCA to Plaintiff,
dated March 15, 2017 (Exhibit A to State Defendants'
Motion, at 13-15) (“Termination Letter”).
on March 16, Plaintiff submitted a request to Gamble for a
“reasonable accommodation.” He informed Gamble
that the deficiencies in his application were “due to
my [Attention Deficit Hyperactivity Disorder
(“ADHD”)] and that this disorder causes me to
have concentration problems and the [sic] hinders my
attention to details.” Complaint, at 4, ¶ 11. He
alleges that he also submitted a request for
“reasonable accommodation” on March 20, and that
Gamble denied the request on March 22. Id. at 9,
¶¶ 55, 57. The State Defendants claim, and
Plaintiff does not dispute, that TDHCA provided Plaintiff
with an extension of time and “detailed information on
how to fix his application.” State Defendants'
Motion, at 15. See Complaint, at 4, ¶ 11
(“I received an email correspondence” from Gamble
stating “that ‘TDHCA would like to extend an
offer in submitting an appeal of the termination of the
application'”). Defendants also have supplied a
letter from TDHCA to Plaintiff denying his appeal of the
termination. See Letter from TDHCA to Plaintiff,
dated April 11, 2017 (Exhibit A to State Defendants'
Motion, at 48-51) (“Appeal Letter”). The Appeal
Letter states that Plaintiff had failed to address most of
the deficiencies in the Termination Letter, and recites the
assistance and instruction supplied by TDCHA for Plaintiff.
Plaintiff's filings before this Court do not claim to
have submitted the documents required by TDHCA, nor do they
address the Appeal Letter.
also alleges that, at some point in the application process,
he met with Defendant Bond, the Director of Community
Development for the City of Bryan, and that she refused to
place his proposal on the City Council's agenda.
Plaintiff alleges that he requested “to be placed on
the agenda to get the [City Council's] input as required
by the ordinance, that any employee can get an item on the
agenda according to the city manager[']s
procedures.” Complaint, at 6-7, ¶ 34. He
characterizes his request as one for a “reasonable
accommodation” and states that Bond denied the request
“with deliberate indifference.” Id. at
7, ¶¶ 35-36.
March 23, 2017, Plaintiff filed this suit in the Western
District of Louisiana, where he apparently now resides. On
August 1, 2017, the Hon. Mark L. Hornsby, United States
Magistrate Judge, transferred venue to this Court. Memorandum
Order [Doc. # 25]. Judge Hornsby's order partially
granted relief requested by Defendants in their Motions to
Dismiss, which remain pending before this Court.
has filed three previous lawsuits against TDCHA and its
employees regarding past denials of his applications for tax
credits. See Sims v. Tex. Dep't of Hous. & Cmty.
Affairs, No. 1:16-CV-906-LY, 2016 WL 6834023 (W.D. Tex.
Nov. 18, 2016) (Austin, M.J.); Sims v. Tex. Dep't of
Hous. & Cmty. Affairs, No. 4:07-CV-4511, 2008 WL
4552784 (S.D. Tex. Oct. 7, 2008) (Froeschner, M.J.); Sims
v. Tex. Dep't of Hous. & Cmty. Affairs, No.
4:05-CV-2842, 2005 WL 3132184 (S.D. Tex. Nov. 21, 2005)
(Rosenthal, J.). In all three cases, Plaintiff's claims
were dismissed under Rule 12 for lack of subject matter
jurisdiction or failure to state a claim upon which relief
could be granted. In the case at bar, unlike his previous
suits, Plaintiff has added the Bryan Defendants and claims
standing as a potential resident of Arlinda Gardens.
RULE 12 STANDARDS
case is properly dismissed for lack of subject matter
jurisdiction when the court lacks the statutory or
constitutional power to adjudicate the case.” Smith
v. Regional Transit Auth., 756 F.3d 340, 347 (5th Cir.
2014) (internal citation and quotation marks omitted).
“In considering a challenge to subject matter
jurisdiction, the district court is free to weigh the
evidence and resolve factual disputes in order to satisfy
itself that it has the power to hear the case.”
Id. (internal citation and quotation marks omitted).
When the court's subject matter jurisdiction is
challenged, the party asserting jurisdiction bears the burden
of establishing it. See Alabama-Coushatta Tribe of Tex.
v. U.S., 757 F.3d 484, 487 (5th Cir. 2014). A motion to
dismiss for lack of subject matter jurisdiction should be
granted only if it appears certain that the plaintiff cannot
prove a plausible set of facts that establish subject matter
jurisdiction. Venable v. La. Workers' Comp.
Corp., 740 F.3d 937, 941 (5th Cir. 2013). “Under
Rule 12(b)(1), the court may find a plausible set of facts by
considering any of the following: (1) the complaint alone;
(2) the complaint supplemented by the undisputed facts
evidenced in the record; or (3) the complaint supplemented by
undisputed facts plus the court's resolution of disputed
facts.” In re Mirant Corp, 675 F.3d 530, 533
(5th Cir. 2012) (internal citation, alteration, and quotation
marks omitted). The Court must take the well-pled factual
allegations of the complaint as true and view them in the
light most favorable to the plaintiff. Id.
courts view with disfavor a motion to dismiss for failure to
state a claim under Federal Rule of Civil Procedure 12(b)(6).
Turner v. Pleasant, 663 F.3d 770, 775 (5th Cir.
2011) (citing Harrington v. State Farm Fire & Cas.
Co., 563 F.3d 141, 147 (5th Cir. 2009)); Lormand v.
U.S. Unwired, Inc., 565 F.3d 228, 232 (5th Cir. 2009);
Test Masters Educ. Servs., Inc. v. Singh, 428 F.3d
559, 570 (5th Cir. 2005). The Supreme Court has explained
that in considering a motion to dismiss under Rule 12(b)(6),
a complaint must be liberally construed in favor of the
plaintiff and all well-pleaded facts taken as true. See
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009);
Erickson v. Pardus, 551 U.S. 89, 94 (2007); Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56 (2007);
Harrington, 563 F.3d at 147. However,
“[t]hreadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not
suffice.” Iqbal, 556 U.S. at 678 (citing
Twombly, 550 U.S. at 555). The complaint must
contain “sufficient factual matter, accepted as true,
to ‘state a claim to relief that is plausible on its
face.'” Id. (quoting Twombly, 550
U.S. at 570); Patrick v. Wal-Mart, Inc., 681 F.3d
614, 617 (5th Cir. 2012). When there are well-pleaded factual
allegations, a court should presume they are true, even if
doubtful, and then determine whether they plausibly give rise
to a claim to relief. Iqbal, 556 U.S. at 679. This
determination of plausibility is a context-specific task that
requires the court to draw on its judicial experience and
common sense. Id.
considering a motion to dismiss, a court ordinarily must
limit itself to the contents of the pleadings and attachments
thereto. Collins v. Morgan Stanley Dean Witter, 224
F.3d 496, 498 (5th Cir. 2000) (citing Fed.R.Civ.P. 12(b)(6)).
Documents “that a defendant attaches to a motion to
dismiss are [also] considered part of the pleadings if they
are referred to in the plaintiff's complaint and are
central to her claim.” Id. at 498-99 (quoting
Venture Assocs. Corp. v. Zenith Data Sys. Corp., 987
F.2d 429, 431 (7th Cir. 1993)); see Kane Enters. v.
MacGregor (USA), Inc., 322 F.3d 371, 374 (5th Cir.
2003). “In so attaching, the defendant merely assists
the plaintiff in establishing the basis of the suit, and the
court in making the elementary determination of whether a
claim has been stated.” Collins, 224 F.3d at
499. These presumably are documents whose authenticity no
party questions. See Walch v. Adjutant General's
Dep't of Tex., 533 F.3d 289, 294 (5th Cir. 2008)
(citing 5B Charles Alan Wright & Arthur R. Miller,
Federal Practice and Procedure § 1357 (3d ed. 2004)).
document filed by a pro se party must be
“liberally construed” and “a pro
se complaint, however inartfully pleaded, must be held
to less stringent standards than formal pleadings drafted by
lawyers.” Erickson v. Pardus, 551 U.S. 89, 94
(2007) (internal quotation marks and citations omitted).
See Fed. R. Civ. P. 8(e) (“Pleadings must be
construed so as to do justice”); Hood v. Pope,
627 F. App'x 295, 299 n.7 (5th Cir. 2015).
brings claims under the Fair Housing Act, 42 U.S.C. §
3601 et seq. (“FHA”); the Rehabilitation
Act, 29 U.S.C. § 701 et seq.; the Americans
with Disabilities Act, 42 U.S.C. § 12101 et
seq. (“ADA”); and the Equal Protection
Clause of the Fourteenth Amendment. The State Defendants seek
dismissal based on sovereign ...