United States District Court, D. Nebraska
SHELIA M. BOLAR, Plaintiff,
JOSEPH HUNTER; SILVERLEAF INVESTMENTS LLC; OAK VIEW APARTMENTS; DOES 1-30, inclusive; and CITY OF OMAHA, Defendants.
MEMORANDUM AND ORDER
Richard G. Kopf Senior United States District Judge
Shelia M. Bolar, filed this case on March 7, 2017, and was
granted leave to proceed in forma pauperis on April 3, 2017.
The court now conducts an initial review of her Complaint
(Filing No. 1) to determine whether summary dismissal is
appropriate under 28 U.S.C. § 1915(e)(2).
SUMMARY OF COMPLAINT
alleges she is “an honorably discharged, decorated,
service-connected disabled female African-American
veteran” who has right-sided weakness and balance
problems, resulting from a stroke she suffered in 1985, and
mild bone degeneration in both hips. Climbing more than 4
stair steps allegedly causes Bolar great pain and puts her at
risk of falling.
alleges she rented a third-floor one-bedroom apartment from
Silverleaf Investments and Joseph Hunter, the landlord and
property manager for Oak View Apartments, on September 24,
2016, with the understanding that she would be able to move
into a first-floor studio apartment in a day or two after a
broken window was repaired in that unit. Bolar alleges Hunter
refused her request to move down to the first-floor apartment
on October 2, 2016, stating that Bolar was contractually
bound by a 12-month written lease on the third-floor
apartment. Bolar claims she has fallen several times and has
experienced pain in her lower back, hips, and knees from
climbing stairs up to the third-floor apartment. Bolar also
claims the apartment is uninhabitable because of snake
infestation in the ceiling, walls, and floor, a condition
which Hunter has failed and refused to correct.
addition to suing Hunter, Silverleaf Investments, and Oak
View Apartments, Bolar sues “various other unknown
tenants, ” Does 1-30, for no apparent reason, and also
sues the City of Omaha's Code Enforcement Unit of
Planning Department for not taking “any meaningful or
corrective action to cure said deprivation of Plaintiff's
rights as a disabled person” (Filing No. 1 at
CM/ECF p. 10). Bolar does not state what relief she is
requesting as against any Defendant.
STANDARDS ON INITIAL REVIEW
court is required to review in forma pauperis complaints to
determine whether summary dismissal is appropriate.
See 28 U.S.C. § 1915(e). The court must dismiss
a complaint or any portion of it that states a frivolous or
malicious claim, that fails to state a claim upon which
relief may be granted, or that seeks monetary relief from a
defendant who is immune from such relief. 28 U.S.C. §
plaintiffs must set forth enough factual allegations to
“nudge their claims across the line from conceivable
to plausible, ” or “their complaint must be
dismissed.” Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 569-70 (2007); see also Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (“A claim has
facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.”).
essential function of a complaint under the Federal Rules of
Civil Procedure is to give the opposing party ‘fair
notice of the nature and basis or grounds for a claim, and a
general indication of the type of litigation
involved.'” Topchian v. JPMorgan Chase Bank,
N.A., 760 F.3d 843, 848 (8th Cir. 2014) (quoting
Hopkins v. Saunders, 199 F.3d 968, 973 (8th Cir.
1999)). However, “[a] pro se complaint must be
liberally construed, and pro se litigants are held to a
lesser pleading standard than other parties.”
Topchian, 760 F.3d at 849 (internal quotation marks
and citations omitted).
asserts her action “is brought pursuant to 42 U.S.C.
1983, the Americans with Disabilities Act, Section 504 of the
Rehabilitation Act of 1973 and the Fair Housing Act of 1988
as amended, as well as the Hate Crimes Clause of the Civil
Rights Act of 1968, and upon the 1st,
4th, 5th, 8th,
13th and 14th Amendments to the U.S.
Constitution” (Filing No. 1 at CM/ECF p. 3).
claims she was entitled to move from the third to the first
floor of the apartment building as a reasonable accommodation
under the Americans with Disabilities Act. This claim fails
as a matter of law because Title III of the ADA, which
prohibits disability discrimination in “any place of
public accommodation, ” 42 U.S.C. § 12182(a), does
not apply to residential facilities. Lancaster v.
Phillips Investments, LLC,482 F.Supp.2d 1362, 1366-67
(M.D. Ala. 2007); see Indep. Housing Servs. of San
Francisco v. Fillmore Ctr. Assocs.,840 F.Supp. 1328,
1344 n. 14 (N.D.Cal. 1993) (“[T]he legislative history
of the ADA clarifies that ‘other place of lodging'
[in definition of ‘public accommodation'] does not
include residential facilities.”); H.R.Rep. No.
101-485(II), at 100 (1990) (“Only nonresidential
facilities are covered by [Title III].”). Consequently,
“apartments and condominiums do not constitute public
accommodations within the meaning of the [ADA]. Indep.
HousingServs., 840 F.Supp. at 1344; Moore
v. Equity Residential Mgmt., L.L.C., No.
16-CV-07204-MEJ, 2017 WL 897391, at *3 (N.D. Cal. Mar. 7,
2017) (“[A]partment complexes do not constitute
‘public accommodations' within the meaning of the
ADA”) (quoting Arceneaux v. Marin Hous. Auth.,
2015 WL 3396673, at *7 (N.D. ...