Ohana v. 180 Prospect Place Realty Corp.

• Decision Date: 11 March 1998
• Docket Number: No. 94-CV-5816 (FB).,94-CV-5816 (FB).
• Citation: 996 F.Supp. 238
• Parties: Tami OHANA and Edith Stern, Plaintiffs, v. 180 PROSPECT PLACE REALTY CORP.; Allan Fogelson; Richard Pilson; Ruth Jackson; and Gloria Phelps, Defendants.
• Court: U.S. District Court — Eastern District of New York

996 F.Supp. 238

Tami OHANA and Edith Stern, Plaintiffs, v. 180 PROSPECT PLACE REALTY CORP.; Allan Fogelson; Richard Pilson; Ruth Jackson; and Gloria Phelps, Defendants.

No. 94-CV-5816 (FB).

United States District Court, E.D. New York.

March 11, 1998.

Tami Ohana and Edith Stern, Hollywood, CA, pro se.

Ruth Jackson, Brooklyn, NY, pro se.

Gloria Phelps, Brooklyn, NY, pro se.

Richard J. Pilson, Berliner & Pilson, New York City, for 180 Prospect Place Realty Co., Allan Fogelson and Richard Pilson.

MEMORANDUM AND ORDER

BLOCK, District Judge.

Plaintiffs Tami Ohana and Edith Stern, pro se, commenced this action against, inter alia, Ruth Jackson ("Jackson") and Gloria Phelps ("Phelps"), seeking monetary damages against these defendants for their alleged interference with plaintiffs' rights under § 3617 of the Fair Housing Act, 42 U.S.C. § 3601 et seq. ("FHA"), and an implementing regulation, 24 C.F.R. § 100.400. Presently before the Court are Jackson's and Phelps' motions to dismiss plaintiffs' complaint, as amended, pursuant to Federal Rule of Civil Procedure 12(b)(6), for failure to state a claim. The Court denies their motions. In so doing, the Court holds that the FHA not only protects individuals from discrimination in the acquisition of their residences because of race, color, religion, sex, familial status, or national origin, but also protects them from interference by their neighbors for such discriminatory reasons in the peaceful enjoyment of their homes.

BACKGROUND

Plaintiffs' amended complaint alleges the following pertinent facts: On December 12, 1991, plaintiffs moved into Apartment 4D at 170 Prospect Place, Brooklyn, New York.¹ From that day forward, until they moved out the following December, Jackson and Phelps, their not-too-friendly neighbors, engaged in a series of discriminatory acts against them based upon plaintiffs' race (Hebrew), religion (Jewish), and national origin (Middle Eastern).²

These acts took the form of racial and anti-Jewish slurs and epithets, threats of bodily harm, and noise disturbances. For example, on the day after plaintiffs moved in, Phelps "stalked plaintiffs in front of their [apartment] door and said she is `unhappy that whites moved next door.'" On another occasion, Jackson "yelled loudly `I'll have the motherf — ker Jews out.' " At times, Phelps and Jackson also banged on walls and hammered late at night while shouting their slurs and epithets. Specifically, on at least two occasions, Jackson "hammer[ed] loudly while hollering `Jews move,' [at] around 2:00 a.m. and 2:30 a.m., startling [plaintiffs] awake." On another occasion, Jackson "forced herself into [plaintiffs'] apartment and put her fist in plaintiff Stern's face saying she had `already hit the landlord.'" In another incident, Jackson "accosted plaintiff Stern in the hall ... and shouted at plaintiff Stern that `she was not black enough to live in the building' and that she'll `send an Arab to kill her.'"

Visitors to Jackson's and Phelps' apartments participated in this type of abusive activity. For example, plaintiffs allege that "defendant Jackson with other tenants from 170 Prospect Pl., and visitors to her Apt. (# 3D) directed threats of bodily harm and anti-Jewish epithets at plaintiffs, intentionally done during the Jewish holiday of Purim."³

DISCUSSION

A. Standard for a Rule 12(b)(6) Motion to Dismiss

A complaint should only be dismissed pursuant to Rule 12(b)(6) "if it appears that [the plaintiffs] can prove no set of facts, consistent with [their] complaint, that would entitle [them] to relief." Electronics Communications Corp. v. Toshiba America Consumer Prods., Inc., 129 F.3d 240, 242-43 (2d Cir. 1997). Furthermore, "the court must accept as true all the factual allegations in the complaint and must draw all reasonable inferences in favor of the plaintiff." Hamilton Chapter of Alpha Delta Phi, Inc. v. Hamilton College, 128 F.3d 59, 63. A pro se complaint is held "to less stringent standards than formal pleadings drafted by lawyers." Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972).

B. The Fair Housing Act

The United States Supreme Court has noted that the FHA is "a comprehensive open housing law." Jones v. Alfred H. Mayer Co., 392 U.S. 409, 413, 88 S.Ct. 2186, 20 L.Ed.2d 1189 (1968).⁴ The purpose of the FHA, as expressed by Congress, is "to provide, within constitutional limitations, for fair housing throughout the United States." 42 U.S.C. § 3601. Thus, it is intended to promote "open, integrated residential housing patterns and to prevent the increase of segregation, in ghettos, of racial groups whose lack of opportunities the Act was designed to combat." Otero v. New York City Housing Auth., 484 F.2d 1122, 1134 (2d Cir.1973). In order to achieve its purpose, the provisions of the FHA are to be construed broadly. See Trafficante v. Metropolitan Life Ins. Co., 409 U.S. 205, 211-12, 93 S.Ct. 364, 34 L.Ed.2d 415 (1972). Consistent with its broad reach, the FHA provides for both private and governmental rights of action. See 42 U.S.C. §§ 3612-3614.

42 U.S.C. § 3617 is the section that triggers liability under the FHA. It states:

It shall be unlawful to coerce, intimidate, threaten, or interfere with any person in the exercise or enjoyment of, or on account of his having exercised or enjoyed, or on account of his having aided or encouraged any other person in the exercise or enjoyment of, any right granted or protected by section 3603, 3604, 3605, or 3606 of this title.

Section 3603 consists of definitions and exemptions with respect to the sale and rental of dwellings. Section 3604 prohibits discrimination on the basis of race, color, religion, sex, familial status, and national origin, in the sale or rental of housing, including the terms and conditions of sale or rental, the provision of services in connection with a sale or rental, the availability of dwellings for sale or rental, and advertisements for sale or rental. It provides, specifically, under subdivision (a), that it is unlawful "to refuse to sell or rent after the making of a bona fide offer, or to refuse to negotiate for the sale or rental of, or otherwise make unavailable or deny, a dwelling to any person because of race, color, religion, sex, familial status, or national origin." Section 3605 prohibits discrimination in "real estate-related transactions," including the making of loans for the purchase of a dwelling. Finally, § 3606 prohibits discrimination in the provision of brokerage services.

The Court must determine whether the viability of plaintiffs' § 3617 claim depends upon whether they possess viable claims under §§ 3603-3606. The District Court for the Southern District of New York has recently noted that "[t]he necessity of a nexus between § 3617 and the sections enumerated therein is not free from doubt." United States v. Weisz, 914 F.Supp. 1050, 1054 (S.D.N.Y.1996). As Judge Haight points out in Weisz, the issue has been broached, but not decided, by the Sixth and Seventh Circuits. Id.; see Michigan Protection and Advocacy Service, Inc. v. Babin, 18 F.3d 337, 347 n. 4 (6th Cir.1994) ("for the purpose of this opinion we will assume, without deciding, that the plaintiffs' § 3617 claim does not depend upon the validity of their § 3604(f) claim."); Metropolitan Hous. Dev. Corp. v. Arlington Heights, 558 F.2d 1283, 1288 n. 5 (7th Cir.1977), cert. denied, 434 U.S. 1025, 98 S.Ct. 752, 54 L.Ed.2d 772 (1978) ("We decline to decide whether section 3617 can ever be violated by conduct that does not violate [ §§ 3603, 3604, 3605 or 3606]."); but see Smith v. Stechel, 510 F.2d 1162, 1164 (9th Cir.1975) ("Section 3617 does not necessarily deal with a discriminatory housing practice, or with the landlord, financier or brokerage service guilty of such practice. It deals with a situation where no discriminatory practice may have occurred at all because the would be tenant has been discouraged from asserting his rights...."); Evans v. Tubbe, 657 F.2d 661, 663 n. 3 (5th Cir.1981) ("The defendant Tubbe's alleged conduct is arguably within the prohibitions of both §§ 3604(a) and 3617."); Sofarelli v. Pinellas County, 931 F.2d 718, 722 (11th Cir. 1991) ("We find that Sofarelli may be able to prove a set of facts *** which would clearly constitute coercion and intimidation under § 3617."). Judge Haight's research caused him to conclude that "[t]he Second Circuit does not appear to have addressed the issue." Weisz, 914 F.Supp. at 1054.

The Second Circuit has, however, commented in Frazier v. Rominger, 27 F.3d 828 (2d Cir.1994), that "[s]ection 3617 prohibits the interference with the exercise of Fair Housing rights only as enumerated in [ §§ 3603, 3604, 3605, or 3606], which define the substantive violations of the Act." Id. at 834 (emphasis supplied). Taken at face value, this suggests that plaintiffs, once having secured their housing, have no right under the FHA to be free from interference with the peaceful enjoyment of their home by one not associated with its sale or rental.

At issue in Frazier, however, was the discrete question of whether a landlord's refusal to rent, which would clearly be cognizable under § 3604(a), could serve, simultaneously, as a separate § 3617 claim because it would also, perforce, constitute "interference" under § 3617. As the court pointed out, "under this theory, every allegedly discriminatory denial of housing under § 3604(a) would also constitute a violation of § 3617 in that the denial `interfered' with the prospective tenant's Fair Housing Act rights." Id. at 834. Consequently, the court "[d]eclin[ed] to believe that Congress ever intended such a statutory overlap" and concluded, therefore, "that the plaintiffs' sole remedy in this case existed in their § 3604(a) cause of action."⁵ Id.

Unlike Frazier, plaintiffs do not appear to have a claim against the defendants bottomed on a violation of any of the substantive provisions of §§ 3603-3606. The closest nexus...