United States District Court, N.D. Texas, Dallas Division
CARL V. WEISBAUM, Plaintiff,
DALLAS HOUSING AUTHORITY, Defendant.
FINDINGS, CONCLUSIONS, AND RECOMMENDATION
CARRILLO RAMIREZ UNITED STATES MAGISTRATE JUDGE
Special Order No. 3-251, this pro se case
has been automatically referred for full case management,
including the determination of non-dispositive motions and
issuance of findings of fact and recommendations on
dispositive motions. Before the Court for recommendation is
Defendant's Motion for Summary Judgment, filed
November 17, 2017 (doc. 11). Based on the relevant filings,
evidence, and applicable law, the motion should be
lawsuit arises out of alleged housing discrimination at an
apartment complex located at 10025 Shoreview Road, Dallas,
Texas 75238 (the Property). (docs 12 at 2; 13 at 3,
6-7.) The Property is operated by the Dallas
Housing Authority (Defendant). (doc. 12 at 2.) Although
unclear, it appears that Carl Weisbaum (Plaintiff) is
asserting a claim for race discrimination under section
3604(b) of the Fair Housing Act (FHA) against Defendant.
(docs. 1-4 at 5-6; 13 at 7.)
is a Caucasian male who lives on the Property operated by
Defendant. (doc. 13 at 7.) The manager at the Property is
Eric Robinson (Manager), an African-American male. (docs.
2; 13 at 3.) In August 2015, Plaintiff went to the
Manager's office to complain about his upstairs
neighbor's barking dog. (doc. 12 at 2-3; 13 at 3, 7.) The
Manager went to the neighbor's unit, heard the dog
barking, and knocked on the door but there was no answer.
(doc. 13 at 4.) He then attempted to contact the neighbor by
telephone but left a voice message after she did not answer.
(Id.) The neighbor, a Caucasian female, subsequently
contacted the Manager, who “told her that she needed to
do something with the dog because of the complaint . . .
.” (Id.) She agreed to remove the dog from her
apartment, and it was placed in another home about a week and
a half later. (Id. at 11.) Upon removal, the Manager
believed the issue had been resolved and reported to
Plaintiff that he had dealt with the situation. (Id.
at 4, 12.) The Manager did not issue a lease violation
because the neighbor removed the dog. (Id. at 12.)
February 19, 2016, Plaintiff filed a housing discrimination
complaint with the U.S. Department of Housing and Urban
Development (HUD) alleging that Defendant discriminated
against him based on race in violation of the FHA. (docs. 12
at 3; 13 at 6-7.) He alleged that his neighbor's dog
“barked so incessantly that it prevented [him] from
sleeping, eventually affecting his health to the extent that
he was required to wear a heart monitor.” (doc. 13 at
7; see also doc. 1-4 at 6.) He claimed that he
“made repeated requests of [Defendant's] management
to intervene and have the dog removed under the terms of the
lease, ” but management “refused to do so”
for three months. (Id.) He believed Defendant
“refused to act on the dog noise problem because
[Defendant's] management is Black and he is
Caucasian.” (doc. 13 at 7.) He also believed
“that if he were Black, he would have received better
treatment concerning his complaint.” (Id.) HUD
investigated Plaintiff's complaint and dismissed it after
determining “that no reasonable cause exist[ed] to
believe that a discriminatory housing practice ha[d]
occurred.” (Id. at 8.)
August 9, 2016, Plaintiff filed his pro se original
petition in state court seeking “to recover damages for
personal injuries sustained by [him].” (doc. 1-4 at
5-6.) On April 20, 2017, Defendant removed this action to
this Court on the basis of federal question jurisdiction.
(doc. 1-3 at 1-2.) Defendant now moves for summary judgment
on all of Plaintiff's claims against it. (docs. 11; 12.)
Plaintiff has failed to respond. This motion is now ripe for
SUMMARY JUDGMENT STANDARD
judgment is appropriate when the pleadings and evidence on
file show that no genuine issue exists as to any material
fact and that the moving party is entitled to judgment as a
matter of law. Fed.R.Civ.P. 56(a). “[T]he substantive
law will identify which facts are material.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). A genuine issue of material fact exists “if the
evidence is such that a reasonable jury could return a
verdict for the non-moving party.” Id. The
movant makes a showing that there is no genuine issue of
material fact by informing the court of the basis of its
motion and by identifying the portions of the record which
reveal there are no genuine material fact issues. Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986).
the movant makes this showing, the non-movant must then
direct the court's attention to evidence in the record
sufficient to establish that there is a genuine issue of
material fact for trial. Id. at 324. To carry this
burden, the non-movant “must do more than simply show
that there is some metaphysical doubt as to the material
facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith
Radio Corp., 475 U.S. 574, 586 (1986). The non-movant
must show that the evidence is sufficient to support a
resolution of the factual issue in her favor.
Anderson, 477 U.S. at 249. The nonmovant's
burden cannot be satisfied by conclusory allegations,
unsubstantiated assertions, or a mere scintilla of evidence.
Douglass v. United Servs. Auto. Ass'n, 65 F.3d
452, 459 (5th Cir. 1995), revised on other
grounds, 79 F.3d 1415 (5th Cir. 1995) (en banc).
“If the [nonmoving party's] theory is . . .
senseless [where] no reasonable jury could find in its favor,
[then] summary judgment should be granted.”
Lottinger v. Shell Oil Co., 143 F.Supp.2d 743, 751
(S.D. Tex. 2001) (quoting Eastman Kodak Co. v. Image
Tech. Servs., Inc., 504 U.S. 451, 468-69 (1992)).
parties may satisfy their respective burdens by ‘citing
to particular parts of materials in the record, including
depositions, documents, electronically stored information,
affidavits or declarations, stipulations . . . admissions,
interrogatory answers, or other materials.'”
Rooters v. State Farm Lloyds, 428 Fed.Appx. 441, 445
(5th Cir. 2011) (citing Fed.R.Civ.P. 56(c)(1)). While all of
the evidence must be viewed in a light most favorable to the
motion's opponent, Anderson, 477 U.S. at 255
(citing Adickes v. S.H. Kress & Co., 398 U.S.
144, 158-59 (1970)), neither conclusory allegations nor
unsubstantiated assertions satisfy the non-movant's
summary judgment burden, Little v. Liquid Air Corp.,
37 F.3d 1069, 1075 (5th Cir. 1994) (en banc); Topalian v.
Ehrman, 954 F.2d 1125, 1131 (5th Cir. 1992). There is
also “no genuine issue as to any material fact [if] a
complete failure of proof concerning an essential element of
the nonmoving party's case necessarily renders all other
facts immaterial.” Celotex, 477 U.S. at 323.
Summary judgment in favor of the movant is proper if, after
adequate time for discovery, the motion's opponent fails
to establish the existence of an element essential to her
case and as to which she will bear the burden of proof at
trial. Celotex, 477 U.S. at 322-23.
the courts liberally construe the pleadings of a pro
se plaintiff. See, e.g., Haines v. Kerner, 404
U.S. 519, 520-21 (1972) (per curiam); Miller v.
Stanmore, 636 F.2d 986, 988 (5th Cir. 1981); Martin
v. United States Post Office, 752 F.Supp. 213, 218 (N.D.
Tex. 1990). However, the courts have no obligation under
Fed.R.Civ.P. 56 “to sift through the record in search
of evidence to support a party's opposition to summary
judgment.” Adams v. Travelers Indem. Co., 465
F.3d 156, 164 (5th Cir. 2006) (quoting Ragas v. Tenn. Gas
Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998)).
Instead, a party opposing summary judgment must
“identify specific evidence in the record” that
supports the challenged claims and “articulate the
precise manner in which that evidence supports [a challenged]
claim.” Ragas, 136 F.3d at 458 (citing
Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir.
as here, the nonmovant fails to respond to the motion for
summary judgment, the failure does not allow the court to
enter a default summary judgment. Hibernia Nat'l Bank
v. Admin. Cent. Sociedad Anonima, 776 F.2d 1277, 1279
(5th Cir. 1985) (citing John v. La. (Bd. of Trs. for
State Colls. & Univs.), 757 F.2d 698, 709 (5th Cir.
1985)). “A summary judgment nonmovant who does not
respond to the motion is relegated to [his] unsworn
pleadings, which do not constitute summary judgment
evidence.” Bookman v. Shubzda, 945 F.Supp.
999, 1002 (N.D. Tex. 1996) (citing Solo Serve Corp. v.
Westowne Assocs., 929 F.2d 160, 165 (5th Cir. 1991)). In
addition, the movant's evidence may ...