McGary v. City of Portland

• Decision Date: 27 October 2004
• Docket Number: No. 02-35668.,02-35668.
• Citation: 386 F.3d 1259
• Parties: Richard McGARY, Plaintiff-Appellant, v. CITY OF PORTLAND, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1259

386 F.3d 1259

Richard McGARY, Plaintiff-Appellant, v. CITY OF PORTLAND, Defendant-Appellee.

No. 02-35668.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 12, 2004.

Filed October 27, 2004.

Karen A. Berkowitz, Legal Aid Services of Oregon, Portland, OR, Edward Johnson, Oregon Law Center, Portland, OR, for the plaintiff-appellant.

Tracy Pool Reeve, Office of the City Attorney, Portland, OR, for the defendant-appellee.

Appeal from the United States District Court for the District of Oregon, Garr M. King, District Judge, Presiding. D.C. No. CV-02-00259-GMK.

Before: D.W. NELSON, KLEINFELD, and FISHER, Circuit Judges.

D.W. NELSON, Senior Circuit Judge.

Richard McGary brought this action against the City of Portland, alleging that the City discriminated against him on the basis of his disability, in violation of the Fair Housing Act, the Americans with Disabilities Act, and parallel state and local laws, when it denied his request for additional time to clean his yard in order to comply with the City's nuisance abatement ordinance. The district court dismissed McGary's complaint for failure to state a claim upon which relief can be granted under Federal Rule of Civil Procedure 12(b)(6). On appeal, we hold that McGary adequately pled that the City discriminated against him by failing to reasonably accommodate his disability under the relevant statutes. We therefore reverse the judgment of the district court and remand for further proceedings.

BACKGROUND¹

McGary, an individual with AIDS, owned and lived in a home in Portland, Oregon. McGary's illness impaired his ability to perform major life functions, including the upkeep of his property. On January 26, 2000, an inspector from the City's Office of Planning and Development Review (OPDR) inspected McGary's home and determined that the amount of trash and debris in his yard constituted a nuisance in violation of Title 29 of the Portland City Code. See Portland City Code 29.20.010 ("It is the responsibility of the owner of any property ... to maintain the outdoor areas of the property [including]... [r]emoving, and keep[ing] removed ... [a]ccumulations of litter, glass, scrap materials (such as wood, metal, paper, and plastics), junk, combustible materials, stagnant water, or trash...."). On February 1, 2000, OPDR sent a Notice to Remove Nuisance to McGary, directing him to remove all trash and debris from his yard by February 16, 2000.

On January 27, 2000, after the inspection but prior to the issuance of the Notice to Remove Nuisance, a patient advocate from the Cascade AIDS Project (CAP) left a message with OPDR, asking what CAP could do to help McGary meet OPDR's requirements. OPDR did not return the call. On February 5 and 6, 2000, CAP volunteers assisted McGary in removing some of the trash and debris from his yard and placed it in a dumpster rented by CAP for that purpose. However, OPDR determined that the clean-up was insufficient and issued a Notice of Work Order on February 22, 2000, and a Final Notice on March 2, 2000. McGary continued to work on cleaning his yard during this time. On March 9, 2000, a CAP patient advocate spoke with an OPDR inspector, who informed the advocate that the only way to stop a warrant from issuing was for McGary to fully clean the yard.

On March 13, 2000, McGary was hospitalized with meningitis, an exacerbation of his disabling condition. On March 14, the CAP patient advocate called OPDR and informed the inspector that McGary had been hospitalized and asked that the warrant be withdrawn. Nonetheless, OPDR issued a warrant on March 21, 2000. McGary remained in the hospital until March 24, 2000.

On March 28, 2000, the City's contractor entered McGary's yard and removed the debris. The City then charged McGary $1,818.83 for the cost of debris removal and assessment, and placed a lien on his home for that amount. McGary subsequently sold his home and satisfied his debt and lien with the City.

On March 1, 2002, McGary filed a complaint in district court, alleging that the City discriminated against him on the basis of his disability when it denied his request for additional time to clean his yard and, in doing so, violated the Fair Housing Amendments Act of 1988 (FHAA), 42 U.S.C. § 3601 et seq., the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq., and parallel state and local laws, Or.Rev.Stat. § 659A.145 and Portland City Code 3.1000.005. McGary sought compensatory damages in an amount to be proven at trial, as well as attorney's fees and costs. The City moved to dismiss the action for failure to state a claim upon which relief can be granted under Federal Rule of Civil Procedure 12(b)(6). The district court granted the City's motion and dismissed the action on June 19, 2002. McGary timely appealed.

STANDARD OF REVIEW

We review de novo a dismissal for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). Thompson v. Davis, 295 F.3d 890, 895 (9th Cir.2002) (per curiam), cert. denied, 538 U.S. 921, 123 S.Ct. 1570, 155 L.Ed.2d 311 (2003). All allegations of material fact in the complaint are taken as true and construed in the light most favorable to the plaintiff. Id. Dismissal of the complaint is appropriate only if it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim which would entitle him to relief. Id.

The Supreme Court has cautioned that, in reviewing the sufficiency of the complaint, "[t]he issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims. Indeed it may appear on the face of the pleadings that a recovery is very remote and unlikely but that is not the test." Jackson v. Carey, 353 F.3d 750, 755 (9th Cir.2003) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974)).

DISCUSSION

1. FHAA Claim

McGary alleges that the City violated the FHAA by denying his request for a "reasonable accommodation," which would have allowed him additional time to clean up his yard. Under the FHAA, unlawful discrimination includes "a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford [a handicapped] person equal opportunity to use and enjoy a dwelling." 42 U.S.C. § 3604(f)(3)(B).² We have repeatedly interpreted this language as imposing an "affirmative duty" on landlords and public agencies to reasonably accommodate the needs of disabled individuals. See, e.g., Giebeler v. M&B Assocs., 343 F.3d 1143, 1146-47 (9th Cir.2003); United States v. Cal. Mobile Home Park Mgmt. Co., 29 F.3d 1413, 1416 (9th Cir.1994) ("Mobile Home I"); City of Edmonds v. Wash. State Bldg.Code Council, 18 F.3d 802, 806 (9th Cir.1994), aff'd sub nom., City of Edmonds v. Oxford House, Inc., 514 U.S. 725, 115 S.Ct. 1776, 131 L.Ed.2d 801 (1995).

In order to state a discrimination claim under the FHAA for failure to reasonably accommodate, McGary must allege that (1) "he suffers from a handicap as defined by the FHAA;" (2) the City "knew or reasonably should have known of" McGary's handicap; (3) "accommodation of the handicap `may be necessary' to afford [McGary] an equal opportunity to use and enjoy [his] dwelling;" and (4) the City "refused to make such accommodation." Giebeler, 343 F.3d at 1147.

The dispute in this case focuses entirely on the third requirement. The City does not dispute that McGary's complaint sufficiently alleged that he was handicapped under the FHAA, that it was informed of McGary's handicap, and that it refused to grant McGary the accommodation he requested. Rather, the City argues that McGary failed to allege that any accommodation was necessary to afford him an equal opportunity to "use and enjoy" his home. We hold that, while McGary's claim may not present a paradigmatic discrimination claim arising under the FHAA, it satisfies the liberal pleading requirements established by Supreme Court and Ninth Circuit precedent.

The threshold for pleading discrimination claims under the FHAA is low. In Swierkiewicz v. Sorema N.A., 534 U.S. 506, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002), the Supreme Court held that the standard for pleading an employment discrimination claim is no higher than the relaxed notice pleading standard of Federal Rule of Civil Procedure 8(a), viz., "a short and plain statement of the claim showing that the pleader is entitled to relief." Id. at 512, 122 S.Ct. 992. In Swierkiewicz, the Supreme Court clarified that a plaintiff need not establish a prima facie case of discrimination in the complaint, since the prima facie case is "an evidentiary standard, not a pleading requirement," and often requires discovery to fully adduce. 534 U.S. at 510-11, 122 S.Ct. 992. The Ninth Circuit has explicitly extended the Court's holding in Swierkiewicz to Fair Housing Act (FHA) claims. See Edwards v. Marin Park, Inc., 356 F.3d 1058, 1061-62 (9th Cir.2004); see also Gilligan v. Jamco Dev. Corp., 108 F.3d 246, 248-49 (9th Cir.1997) (applying Federal Rule of Civil Procedure 8(a)'s liberal pleading standard to FHA claims and noting that this standard "contains `a powerful presumption against rejecting pleadings for failure to state a claim'" (quoting Auster Oil & Gas, Inc. v. Stream, 764 F.2d 381, 386 (5th Cir.1985))).

Relying on cases from outside this Circuit, the City argues that McGary has not stated a claim under the FHAA since the City "has neither excluded [McGary] from the neighborhood or residence of his choice, nor has it created less opportunity for [McGary], as a handicapped person, to live in his neighborhood." Howard v. City of Beavercreek, 276 F.3d 802, 807 (6th Cir.2002). The district court adopted the City's reasoning, holding that McGary failed to allege he was denied the equal opportunity to "use and enjoy" his dwelling, since he was not denied use of his home or prohibited from living there.

Both the City and the...