United States District Court, D. Nebraska
MEMORANDUM AND ORDER
LAURIE SMITH CAMP, Chief District Judge.
This matter is before the Court on the Motion to Dismiss (Filing No. 16) filed by Defendant Lori Bartling ("Bartling") and the Motion to Dismiss or, in the Alternative, Motion for a More Definite Statement (Filing No. 23) filed by Defendants City of Sidney, Nebraska ("City of Sidney"), Joanie Matthes ("Matthes") Jordan Ball, and Gary Pearson (collectively "the City Defendants"). Bartling and the City Defendants will be referred to herein collectively as "Defendants." For the reasons stated below, Bartling's Motion will be granted and the City Defendants' Motion will be denied.
Plaintiff Jennifer Lynn Cartwright ("Cartwright") filed her Amended Complaint (Filing No. 11) on December 8, 2014. She is not represented by counsel. To draft her Amended Complaint, she used a pro se civil complaint form similar to the form available on this Court's website. Under the heading "Statement of Claim(s)" the form complaint instructs the pro se filer as follows:
State briefly the facts of your claim. Describe how each defendant is involved. You do not need to give legal arguments or cite cases or statutes. Use as much space as you need to state the facts. (Attach extra sheets if necessary.)
(Filing No. 11 at ECF 2.)
Rather than describe the facts of her claims in her Amended Complaint, Cartwright attached a "Commission Determination" and "Final Investigative Report" from the Nebraska Equal Opportunity Commission (collectively the "NEOC Documents"). ( See Filing No. 11. at ECF 6-46.) Defendants have moved to dismiss for failure to state a claim and on immunity grounds.
For purposes of the pending motions, Cartwright's well-pled facts are accepted as true, though the Court need not accept proposed conclusions of law. Because she is pro se, her Amended Complaint must be liberally construed. It is clear that Cartwright attached the NEOC Documents to her Amended Complaint in order to provide the factual basis for her claims. However, these documents include responses and defenses apparently made by Defendants. Construing the Amended Complaint liberally, the Court concludes that Cartwright did not intend that the statements allegedly made by Defendants be accepted as true for purposes of the pending motions. Therefore, unless otherwise stated, the factual summary bellow is drawn from facts stated in the Commission Determination (Filing No. 11 at ECF 6); the Final Investigative Report findings (Filing No. 11 at ECF 7-8); Cartwright's Interviews (Filing No. 11 at ECF 13-19; 24-27); documents provided to HUD by Cartwright (Filing No. 11 at 28-32; 43); and documents provided by Equal Opportunity Specialists (11 at ECF 32-33).
During the time period relevant to Cartwright's Amended Complaint, she lived in a small town where everybody knew her and her family. (Filing No. 11 at ECF 25.) In that town, she and her boyfriend, Troy Frerichs ("Frerichs"), lived together in a single family home owned by Frerichs. (Filing No. 11 at ECF 13, 19.) Frerichs and Cartwright shared ownership of a dog named Paris. (Filing No. 11 at ECF 13, 18.) Frerichs also owned a dog named Putsy, and Cartwright owned two other dogs named Midget and Boogie. (Filling No. 11 at ECF 13, 18, 28.) Altogether, Frerichs and Cartwright housed four dogs on Frerichs's property. (Filing No. 11 at ECF 18.)
Midget and Boogie were service dogs. (Filling No. 11 at ECF 13, 18.) During the time relevant to her Amended Complaint, Cartwright was disabled. (Filing No. 11 at ECF 16.) She was diagnosed with Post Traumatic Stress Disorder ("PTSD") in 1995 (Filing No. 11 at ECF 16), and at some point her doctor prescribed two service dogs to assist her in coping with her impairments and alert her to danger. (Filing No. 11 at ECF 17, 44.) Midget, Boogie, and Paris were licensed with the City of Sidney. (Filing No. 11 at 18.) Midget and Boogie were also registered as service dogs some time prior to July 25, 2011. (Filing No. 11 at ECF 18.)
On July 25, 2011, Cartwright asked that Defendants allow her to have two service animals, but Defendants refused to grant her request. (Filing No. 11 at ECF 7.) As of July 25, 2011, Defendants were aware of Cartwright's disabilities because she had provided medical documentation and certification establishing her need for service animals. (Filing No. 11 at 16, 17.)
On or about August 22, 2011, Cartwright's service animals were found to be in violation of a city ordinance, and fines were levied against Cartwright. (Filing No. 11 at ECF 8.) Thereafter, she was threatened with the forced removal and destruction of her service animals. (Filing No. 11 at ECF 8.) Cartwright provided the City of Sidney with documentation and certification that both of her dogs were service animals and medically necessary. (Filing No. 11 at ECF 7.) Nevertheless, she was charged with "keeping of three or more dogs" and "not having dogs licensed." (Filing No. 11 at ECF 7-8, 14.) Thereafter, she was cited and fined for exceeding the maximum number of dogs and for having an unlicensed dog. (Filing No. 11 at ECF 18.)
Frerichs, who is male and is not disabled, was not cited for exceeding the maximum of three dogs allowed within the city limits. (Filing No. 11 at ECF 8.) When Cartwright asked code enforcer, Jordan Ball, "why she was the one being served when her dogs were in compliance in the first place, and the dog that [was] not licensed [was] [Frerichs's] dog, she was told that it was to cut down on paperwork...." (Filing 11 at ECF 15, 19 (original in all capital letters).)
On December 12, 2011, Cartwright was unable to attend a scheduled court proceeding because she was having surgery. (Filing No. 11 at ECF 8.) She called the court clerk, Bartling, on December 12, 2011, and Bartling informed her that "her only option was to come and pay the fine or a warrant for [her] arrest would be issued." (Filing No. 11 at ECF 19.) At the hearing, a judge rendered a decision against Cartwright, and on December 13, 2011, Bartling, threatened to bar Cartwright from contacting the County Court. (Filing No. 11 at ECF 8.)
On December 23, 2011, Cartwright filed a fair housing complaint. (Filing No. 11 at ECF 8.) The NEOC issued the following charges of discrimination pursuant to Neb. Rev. Stat § 20-333: "The [City of Sidney] has discriminated against [Plaintiff] on the issue of terms and conditions on the basis of sex, and on the issues of terms and conditions and reasonable accommodation on the basis of disability (failure to allow exemption for service animals)." (Filing No. 11 at ECF 6.) The NEOC also issued a "no reasonable cause determination" for Cartwright's "charge of discrimination on the issue of failure to accommodate and the basis of disability (licensing of service animals), and the issue of harassment and intimidation on the basis of retaliation...." (Filing No. 11 at ECF 6.)
Beginning around February 2012, city law enforcement officers frequently drove by Cartwright's residence, parked close to her residence, and sat. (Filing No. 11 at ECF 8.) Cartwright lived in a cul-de-sac, and officers rarely drove by her house "before she filed her complaint." (Filing No. 11 at ECF 25.) Around March 15, 2012, city and county law enforcement officers handcuffed her non-custodial son, Dillon Grabowski, and "threatened to Taser him if he did not go to the police department without his mother." (Filing No. 11 at ECF 8, 24.) After several hours in a holding cell, Grabowski was cited for interfering with a police officer. (Filing No. 11 at ECF 8.) The law enforcement officers involved in the March 15, 2012, incident were aware of Cartwright's complaint of housing discrimination. (Filing No. 11 at ECF 8.) She wanted to file a police report against her son's guardian, but she was not allowed to do so. (Filing No. 11 at ECF 8.)
After the incident with her son, Cartwright was afraid to contact law enforcement. (Filing No. 11 at ECF 25.) On around April 12, 2012, a domestic abuse incident occurred between Cartwright and Frerichs. (Filing No. 11 at ECF 8.) Two officers forced Cartwright and her son to vacate the premises. (Filing No. 11 at ECF 8.) Frerichs was not arrested even though Cartwright had visible signs of bruising. (Filing No. 11 at ECF 8.)
On or about April 16, 2012, Cartwright picked up her daughter with her exhusband's permission. (Filing No. 11 at ECF 8.) Sometime after picking up her daughter, Plaintiff received a phone call from Officer Tim Craig informing her that if she returned to the property where her daughter ...