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Sims v. Gamble

United States District Court, S.D. Texas, Houston Division

January 17, 2018

RICK R. SIMS, Plaintiff,
v.
SHARON GAMBLE, et al., Defendants.

          MEMORANDUM AND ORDER

          NANCY F. ATLAS SENIOR JUDGE.

         Plaintiff 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 moot.

         I. BACKGROUND

         On 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.

         Defendant 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”).

         Immediately 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.

         Plaintiff 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.

         On 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.

         Plaintiff 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.

         II. RULE 12 STANDARDS

         A. Rule 12(b)(1)

         “A 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.

         B. Rule 12(b)(6)

         Traditionally, 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.

         In 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)).

         A 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).

         III. ANALYSIS

         Plaintiff 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 ...


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