Velzen v. Grand Valley State Univ.

Citation902 F.Supp.2d 1038
Decision Date10 October 2012
Docket NumberFile No. 1:12–CV–321.
PartiesKendra VELZEN and Fair Housing Center of West Michigan, Plaintiffs, v. GRAND VALLEY STATE UNIVERSITY, et al., Defendants.
CourtU.S. District Court — Western District of Michigan


Stephen M. Dane, Relman & Dane PLLC, Perrysburg, OH, for Plaintiffs.

Christine Lynn Holst, Jeffrey G. Muth, Barnes & Thornburg LLP, Grand Rapids, MI, for Defendants.



On March 30, 2012, Plaintiffs Kendra Velzen and the Fair Housing Center of West Michigan (FHCWM) brought suit against Defendants Grand Valley State University (GVSU), Grand Valley State University Board of Regents (GVSU BOR), Andy Beachnau, Brenda Mitchner, Leena Karsan, and Kathleen Vanderveen alleging unlawful discrimination under the Fair Housing Act (“FHA”), Federal Rehabilitation Act, and Michigan Persons with Disabilities Civil Rights Act (“PWDCRA”). (Dkt. No. 1.) All claims brought against the individual defendants were brought against them in their official capacities as GVSU administrators. ( Id.) Plaintiffs seek both injunctive and compensatory relief. ( Id.) This matter is before the Court on Defendants' motion, on May 17, 2012, to dismiss Plaintiffs' claims pursuant to Federal Rules of Civil Procedure 12(b)(1), lack of subject matter jurisdiction, and 12(b)(6), failure to state a claim upon which relief can be granted. (Dkt. No. 7.) For the reasons that follow, this motion will be granted in part and denied in part.


Velzen began treatment for depression in 2007 with therapist Merrill E. Graham, a licensed master social worker, clinical social worker, and registered physical therapist. (Dkt. No. 1, ¶ 28.) To manage her depression, Velzen has relied upon the attachment and emotional support she derives from animals. ( Id. at ¶ 30.) In 2009, Velzen was diagnosed with severe neurologically mediated cardiac arrhythmia and had a pacemaker implanted. ( Id. at ¶ 29.) In August 2011, before Velzen moved on-campus at GVSU, where she was a student, Graham formally prescribed an emotional support animal for Velzen. ( Id. at ¶ 30.)

Velzen moved into Calder Residence, an apartment-style building on campus, owned and operated by GVSU, on August 24, 2011, bringing with her a letter from Graham and her guinea pig, Blanca. ( Id. at ¶ 36–39.) The letter explained Velzen's depression and heart condition, and it concluded that “the use of a comfort object, such as Blanca, is a necessary means of controlling stress and managing symptoms.” ( Id. at ¶ 37.) Graham added that [t]he presence of Blanca provides Ms. Velzen with continued emotional support and attachment (thereby reducing symptoms of depression), physiological benefits (such as decreased heart rate), and psychological benefits (such as increased Oxytocin levels, which directly impact the sense of life satisfaction).” ( Id.)

That evening, Mitchner's secretary emailed Velzen, granting her temporary permission to keep the guinea pig for the evening but requesting a meeting the next day. ( Id. at ¶ 40.) On August 25, Velzen met with Karsan who told her that her request to live with the guinea pig was denied because it was not a trained service animal. ( Id. at ¶ 42.) In response, Velzen enlisted the help of the FHCWM. With its help, Velzen met with Mitchner on September 12 and made another request for accommodation. ( Id. at ¶ 42.) Mitchner told Velzen that GVSU's federal obligations were outlined by the Americans with Disabilities Act (“ADA”). ( Id. at ¶ 47.) Because Velzen did not have a physical impairment, GVSU denied her request on September 16. ( Id. at ¶ 48.)

From that date until October 19, 2011 employees of the FHCWM conducted research, investigated GVSU's policies, and consulted with counsel [n]early every business day.” (Dkt. No. 9, Ex. 1, Aff. of Nancy Haynes, at ¶ 15.) The FHCWM asserts that work on this matter “diverted a significant amount of FHCWM resources and resulted in delays in other projects and open case files.” ( Id. at ¶ 17.) On September 30, Velzen formally filed a complaint of unlawful discrimination with the Michigan Department of Civil Rights (“MDCR”). (Dkt. No. 1, at ¶ 59.) Three days later, GVSU gave Velzen permission to bring the guinea pig back into her residence. ( Id. at ¶ 60.) GVSU contends that it “approved” Velzen's accommodation request at this time (Dkt. No. 8, ¶¶ 25–27), but Haynes and Velzen assert that GVSU stood by its policy and characterized it as an “interim exception” and “temporary” (Dkt. No. 9, Ex. 1, Aff., at ¶ 16).

Velzen and the FHCWM brought suit in this Court on March 30, 2012. (Dkt. No. 1.) Since then, Velzen has moved out of Calder Residence as scheduled in April 2012, and cancelled her application for on-campus housing for the Fall 2012/Winter 2013 school year.


A motion to dismiss for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1) may be based on either a facial attack or a factual attack on the allegations of the complaint. Tri–Corp Mgmt. Co. v. Praznik, 33 Fed.Appx. 742, 745 (6th Cir.2002). When the Court reviews a factual attack on subject matter jurisdiction, no presumption of truthfulness applies to the factual allegations of the complaint. United States v. Ritchie, 15 F.3d 592, 598 (6th Cir.1994); Hirt v. Richardson, 127 F.Supp.2d 849, 852 (W.D.Mich.2001). The Court may rely on affidavits or any other evidence properly before it and has wide latitude to collect evidence to determine the issue of subject matter jurisdiction. Rogers v. Stratton Indus., 798 F.2d 913, 915 (6th Cir.1986). “If, on the other hand, an attack on subject-matter jurisdiction also implicates an element of the cause of action, then the district court should ‘find that jurisdiction exists and deal with the objection as a direct attack on the merits of the plaintiff's claim.’ Gentek Bldg. Prods. v. Sherwin–Williams Co., 491 F.3d 320, 330 (6th Cir.2007) (quoting Garcia v. Copenhaver, Bell & Assocs., 104 F.3d 1256, 1261 (11th Cir.1997)). Under this scenario, “the defendant is forced to proceed under Rule 12(b)(6)....” Id.

Federal Rule of Civil Procedure 12(b)(6) provides that a party may assert “failure to state a claim upon which relief can be granted” as an affirmative defense. [T]o survive a motion to dismiss [under 12(b)(6) ], the complaint must contain either direct or inferential allegations respecting all material elements to sustain a recovery under some viable legal theory.” In re Travel Agent Comm'n Antitrust Litig., 583 F.3d 896, 903 (6th Cir.2009) (internal quotation marks omitted). In reviewing such a motion, the Court must “accept all of plaintiff's factual allegations as true and determine whether any set of facts consistent with the allegations would entitle the plaintiff to relief.” G.M. Eng'rs and Assoc., Inc. v. W. Bloomfield Twp., 922 F.2d 328, 330 (6th Cir.1990). As a general rule, however, the Court “need not accept as true legal conclusions or unwarrantedfactual inferences, and conclusory allegations or legal conclusions masquerading as factual allegations will not suffice.” In re Travel Agent, 583 F.3d at 903.

According to the Supreme Court, “a plaintiff's obligation to provide the grounds of his entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation of a cause of action's elements will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 545, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (internal quotations omitted). While detailed factual allegations are not required, the pleading standard “demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ Id. (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955).

A. 12(b)(1) Claims

Defendants' 12(b)(1) defense is properly characterized as a factual attack. (Dkt. No. 8, at 7.) Defendants make three arguments: (1) the actions taken by the parties prior to the filing of the instant action render it moot; (2) FHCWM's actions are insufficient to grant it standing; and (3) the Eleventh Amendment and sovereign immunity bars the FHA and PWDCRA claims against the institutional defendants in their entirety, and against the individual defendants to the extent the claims seek compensatory damages. ( Id. at 7–9.)

The first argument will be examined under 12(b)(1) to the extent it concerns Velzen and her decision to move out of on-campus housing following the filing of the instant action. However, whether the actions of any of the parties prior to the filing of this suit made this action moot is necessarily a question intertwined with the merits of Plaintiffs' claims. Thus, these actions will only be discussed under 12(b)(6). The second and third arguments were properly brought under 12(b)(1).

i) Mootness of Velzen's Claims for Injunctive Relief

Defendants argue that Velzen's claims for injunctive relief are necessarily moot because she has moved out of on-campus housing. (Dkt. No. 8, at 13.) Under the U.S. Constitution, federal courts only have subject matter jurisdiction to hear cases or controversies.” U.S. Const. art. III, § 2, cl. 1. “If events occur during the case ... that make it ‘impossible for the court to grant any effectual relief whatever to a prevailing party,’ the [case] must be dismissed as moot.” Fialka–Feldman v. Oakland Univ. Bd. of Trs., 639 F.3d 711, 713 (6th Cir.2011) (quoting Church of Scientology v. United States, 506 U.S. 9, 12, 113 S.Ct. 447, 121 L.Ed.2d 313 (1992)).

Defendants' theory of mootness centers on Velzen's decision not to live in on-campus housing for the Fall 2012/Winter 2013 school year. (Dkt. No. 10, at 3.) Consequently, they conclude that an injunction requiring Defendants to provide her with accommodation would not provide...

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