United States District Court, M.D. Alabama, Southern Division
ORDER AND RECOMMENDATION
RUSS WALKER, UNITED STATES MAGISTRATE JUDGE
order entered on December 21, 2018, the District Judge
referred this case to the undersigned for consideration and
disposition or recommendation on all pretrial matters. (Doc.
4). Plaintiff Angela Denise Nails, proceeding pro
se, filed an application to proceed in court without
prepaying fees (Doc. 2), which the court construes as a
motion to proceed in forma pauperis pursuant to 28
U.S.C. § 1915. She subsequently filed a second motion to
proceed in forma pauperis (Doc. 5). In relevant
part, section 1915 provides that
[A]ny court of the United States may authorize the
commencement, prosecution or defense of any suit, action or
proceeding, civil or criminal, or appeal therein, without
prepayment of fees or security therefor, by a person who
submits an affidavit that includes a statement of all assets
such [person] possesses that the person is unable to pay such
fees or give security therefor. Such affidavit shall state
the nature of the action, defense or appeal and affiant's
belief that the person is entitled to redress.
28 U.S.C. § 1915(a)(1). A review of the plaintiff's
application reveals that she lacks the resources to pay the
filing fee. Accordingly, upon consideration, it is
that the construed motion to proceed in forma
pauperis (Doc. 2) is GRANTED, and the plaintiff's
subsequent motion to proceed in forma pauperis is
DENIED as moot.
upon review, the court concludes that plaintiff's
complaint is due to be dismissed pursuant to 28 U.S.C. §
1915(e)(2)(B) because it fails to state a claim and,
even if it did, plaintiff's claims would be barred by the
applicable statute of limitations.
alleges that defendant Vaughn Towers discriminated against
her on the basis of her race in violation of the Fair Housing
Act (“FHA”) when defendant asked her to move out
of the apartment complex after she was in an altercation with
another resident. (Doc. 1). Plaintiff claims that the Dothan
Police Department were called to the building because the
other resident assaulted plaintiff, striking plaintiff with
her legs and feet and bruising plaintiff's legs.
Id. at 1. According to the complaint, the incident
occurred on August 30, 2006. Id. Plaintiff alleges
that the other resident was a white female. Id. She
claims that “[t]he Defendant did nothing to the white
female and did ask the African American female to
move.” Id. Plaintiff filed a housing complaint
relating to the August 30, 2006 incident. Id. She
seeks $150, 000 in damages. Id.
Eleventh Circuit has explained what is required to state a
cause of action for discrimination under the FHA as follows:
At the pleading stage, the relevant question is whether the
complaint provides “a short and plain statement of the
claim” that “give[s] the defendant fair notice of
what the plaintiff's claim is and the grounds upon which
it rests.” Swierkiewicz v. Sorema N. A., 534
U.S. 506, 512, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002) (quoting
Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2
L.Ed.2d 80 (1957)). In a discrimination case, “[b]efore
discovery has unearthed relevant facts and evidence, it may
be difficult to define the precise formulation of the
required prima facie case in a particular
case.” Id. Thus, the allegations in the
complaint “should be judged by the statutory elements
of an FHA claim rather than the structure of the prima
facie case.” Gilligan v. Jamco Dev.
Corp., 108 F.3d 246, 250 (9th Cir.1997); see also
Ring v. First Interstate Mort., Inc., 984 F.2d 924, 927
Hunt v. Aimco Prop., L.P., 814 F.3d 1213, 1221-22
(11th Cir. 2016). “Section 3604(a) prohibits blatant
refusals to rent or sell, as well as actions that have the
effect of limiting the availability of housing to members of
protected classes.” Hall v. Lowder Realty Co.,
160 F.Supp.2d 1299, 1319 (M.D. Ala. 2001) (citing
Secretary, United States Dep't of Housing
& Urban Dev. v. Blackwell, 908 F.2d 864 (11th Cir.
1990) and Jackson v. Okaloosa Cty., 21 F.3d 1531,
1542 & n.17 (11th Cir. 1994)). The section most pertinent
here, Section 3604, makes it unlawful to “make
unavailable or deny, a dwelling to any person because of race
[or] color.” 42 U.S.C. § 3604(a). To state a claim
under the FHA, “[a] complaint must allege that the
adverse action was taken because of a [plaintiff's race
or color] and state the facts on which the plaintiff relies
to support that claim.” Hunt, 814 F.3d as
1222. While plaintiff's complaint makes a general
reference to race, she does not allege specifically that she
was asked to move out because of her race and does not
identify any facts supporting a claim that her housing was
denied or otherwise made unavailable to her due to her race.
Rather, she alleges she was asked to move after being
involved in an altercation with a white female resident.
Thus, even construing plaintiff's pro se
pleading liberally, her complaint fails to state a claim
under the FHA.
more problematic, however, is the fact that the alleged
events occurred over 12 years ago. The FHA provides that
“[a]n aggrieved person may commence a civil action ...
not later than 2 years after the occurrence or the
termination of an alleged discriminatory housing
practice.” See 42 U.S.C. § 3613(a)(1)(A).
The Eleventh Circuit has held that “[t]he FHA's
statute of limitations begins to run as soon as facts
supportive of the cause of action are or should be apparent
to a reasonably prudent person similarly situated.”
Telesca v. Vill. of Kings Creek Condo. Ass'n,
Inc., 390 Fed.Appx. 877, 882 (11th Cir. 2010) (citations
and internal quotation marks omitted). The only injury
alleged in plaintiff's complaint derives from an incident
that occurred in 2006. The statute of limitations for an
action under the FHA has long since passed.
the statute of limitations is raised as an affirmative
defense. However, when a plaintiff proceeds in forma
pauperis in a civil action, the court may sua
sponte consider affirmative defenses that are apparent
from the face of the complaint. Clark v. Georgia Pardons
and Parole Board, 915 F.2d 636, 640 n.2 (11th Cir.
1990); see also Ali v. Higgs, 892 F.2d 438 (5th Cir.
1990). “[I]f the district court sees that an
affirmative defense would defeat the action, a section
1915[(e)(2)(B)(i)] dismissal is allowed.”
Clark, 915 F.2d at 640. “The expiration of the
statute of limitations is an affirmative defense the
existence of which warrants dismissal as frivolous.”
Id. at n.2. Accordingly, the plaintiff's FHA
claim is due to be dismissed upon application of 28 U.S.C.
§ 1915(e)(2)(B)(i). See Neitzke v. Williams,
490 U.S. 319, 327 (1989).
it is the RECOMMENDATION of the Magistrate Judge that this
matter be DISMISSED prior to service of process in accordance
with 28 U.S.C. § 1915(e)(2)(B).
further ORDERED that on or before March 19,
2019, plaintiff may file an objection to this Report
and Recommendation. Any objection filed must specifically
identify the findings in the Magistrate Judge's
Recommendation to which plaintiff objects. Frivolous,