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Weisbaum v. Dallas Housing Authority

United States District Court, N.D. Texas, Dallas Division

April 20, 2018

CARL V. WEISBAUM, Plaintiff,



         By 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 GRANTED.

         I. BACKGROUND

         This 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.)[1] 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.)

         Plaintiff 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.

         12 at 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.)

         On 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.)

         On 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 recommendation.


         Summary 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).

         Once 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)).

         “The 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.

         Generally, 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. 1994)).

         Where, 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 ...

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