Zibbell v. Marquette Cnty. Res. Mgmt.

Decision Date20 February 2013
Docket NumberCase No. 2:12-cv-302
CourtU.S. District Court — Western District of Michigan


I. Complaint

Plaintiff Cheryl A. Zibbell brings this federal civil rights action on behalf of her husband, Jeffrey Zibbell, under 42 U.S.C. § 1983. The complaint pleads there is subject matter jurisdiction pursuant to § 504 of the Rehabilitation Act of 1973, codified at 29 U.S.C. § 794, and 28 C.F.R. Part 39. 29 U.S.C. § 794(a) provides that no otherwise qualified individual with a disability in the United States "shall, solely by reason of her or his disability, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency

It is alleged that Jeffrey Zibbell is covered by the Rehabilitation Act because he is disabled and receives federal disability income. The complaint claims that Jeffrey Zibbell is being denied benefits and subjected to discrimination by defendant Marquette County Resource Management (MCRM) in violation of 29 U.S.C. § 794 and 28 C.F.R. Part 39 by reason of his disability and low income, and he is being "forced to suffer unequal housing."

The entire focus of the complaint is to assert a claim based on the alleged violation of Jeffrey Zibbell's rights under § 504 of the Rehabilitation Act. The complaint, as drafted by Cheryl Zibbell, seeks to name Jeffrey as the sole plaintiff. The complaint does not identify Cheryl Zibbell as the plaintiff and there is no claim that MCRM has violated her rights under 29 U.S.C. § 794 and 28 C.F.R. Part 39.

This Court is familiar with the Zibbells' background based on their prior related lawsuits in Case Nos. 2:07-cv-96 and 2:10-cv-23. The present complaint is summarized as follows. In 1999, the Zibbells decided to purchase and rehabilitate a house at 306 East New York Street, Ishpeming, Michigan in Marquette County. The house needed major repairs especially with regard to substandard electrical wiring.

To obtain funds to rehabilitate the house, Jeffrey Zibbell filed an application with MCRM in 1999 seeking financial assistance through its Housing Rehabilitation Program. The primary goal of the program is to provide financial assistance to eligible low-income homeowners to make needed repairs to improve and maintain their residential property as safe, sanitary dwellings that comply with local housing codes. The source of funds used to operate the program are derived from the United States government and the State of Michigan. The federal funds are provided to Marquette County through the Michigan State Housing and Developmental Authority.

After Jeffrey Zibbell submitted his application for financial assistance, MCRM sent a person to inspect the house. In September 1999, MCRM approved the application. It is alleged that MCRM issued a document stating that Jeffrey was approved to receive $25,000 to rehabilitate the house.

The crux of the complaint is that Jeffrey Zibbell has never received the $25,000 from MCRM. The complaint claims that MCRM's Housing Rehabilitation Program is funded in part bythe United States government and that MCRM's failure or refusal to disburse $25,000 to Jeffrey Zibbell for the purpose of rehabilitating his house violates 29 U.S.C. § 794. Cheryl Zibbell contends that Jeffrey, by reason of his disability and low income, is being excluded from participation in, denied the benefits of, and subjected to discrimination under MCRM's Housing Rehabilitation Program which receives financial assistance from the federal government.

The Zibbells purchased the house in the latter part of 1999. At that juncture, they were living in a tent outdoors. It is alleged that MCRM's housing inspector directed the Zibbells to occupy the house prior to its being rehabilitated. The idea was that the Zibbells could occupy the house to avoid living outdoors in a tent during the harsh winter months. It was the Zibbells' understanding that they would begin rehabilitating the house in the Spring of 2000. After moving into the house, the Zibbells discovered that the roof leaked. It is alleged that the problem with the defective roof was never disclosed to the Zibbells by the seller of the house, real estate agent, housing inspector, appraiser, and mortgage lender.

When the Spring of 2000 arrived, the Zibbells did not receive any communication from MCRM about payment of the $25,000 to rehabilitate the house. The Zibbells contacted the same housing inspector who advised that Jeffrey should reapply to MCRM. The complaint asserts that Jeffrey Zibbell resubmitted his application but MCRM failed or refused to respond.

For the next several years, the Zibbells contacted MCRM to complain and request the $25,000 to rehabilitate the house but MCRM did nothing. At one point a MCRM employee, Dottie Lewis, told Cheryl Zibbell that the person who inspected the house had retired. Cheryl Zibbell was advised to mail a copy of the document showing that MCRM had approved the application for $25,000 to rehabilitate the house but Dottie Lewis went on to say that MCRM would "never haveany funds for Jeffrey Zibbell." Cheryl Zibbell mailed a copy of the approval document to Dottie Lewis and waited but MCRM did nothing. In May 2007, the Zibbells filed a lawsuit in this Court against MCRM and other defendants in Case No. 2:07-cv-96. In prior Case No. 2:07-cv-96, Jeffery Zibbell claimed that he was being subjected to discrimination by MCRM on the basis of his disability and low income.

During the years after 1999, the condition of the Zibbells' house deteriorated to the point that it has been condemned as uninhabitable. Due to damage caused by the leaking roof, there is now mold in the house and the ceiling in a bedroom has caved in or collapsed.

The complaint in this case claims that Jeffrey Zibbell is a victim of discrimination based on his disability in violation of § 504 of the Rehabilitation Act, 29 U.S.C. § 794, in that MCRM has failed or refused to disburse $25,000 to him to rehabilitate the house. Without the $25,000 from MCRM, Jeffrey Zibbell is unable to make necessary repairs to the house including fixing the leaking roof and bringing the electrical wiring into compliance with local housing codes.

In pleading the claim under 29 U.S.C. § 794, the complaint asserts that MCRM's conduct constitutes negligence and fraud. The complaint mixes in allegations of negligence and fraud as part of the 29 U.S.C. § 794 claim. The complaint avers that negligence and fraud on the part of MCRM is actionable as a claim for disability discrimination under 29 U.S.C. § 794.

As the Court reads the complaint, it is claimed that MCRM discriminated against Jeffrey Zibbell in violation of 29 U.S.C. § 794 and 28 C.F.R. Part 39 by being negligent in two ways: (1) MCRM allowed the Zibbells to move into the house prior to rehabilitation; and (2) MCRM failed to provide Jeffrey Zibbell with $25,000 to rehabilitate the leaking roof and electrical wiring. The complaint blames the leaking roof, mold in the house, collapsed ceiling, and substandard electricalwiring on MCRM's negligence. Thus, the complaint alleges that MCRM is negligent and at fault for allowing the condition of the house to deteriorate since 1999.

The fraud allegation is more difficult to decipher. The complaint avers that MCRM committed fraud by "making it appear" as though Jeffrey Zibbell had been approved to receive $25,000 to rehabilitate the house but then MCRM later denied Jeffrey's application and excluded him from getting the $25,000. The complaint asserts that this was done by MCRM with the knowledge that Jeffrey Zibbell is disabled and lacks sufficient income to employ an attorney.

Plaintiff Cheryl Zibbell seeks to recover the following relief from defendant MCRM on behalf of Jeffrey Zibbell: (1) $25,000 to rehabilitate the house; and (2) compensatory damages for Jeffrey's mental anguish, physical suffering, and expenses.

II. Allegations of Negligence and Fraud Fail to State Claim Under 29 U.S.C. § 794 and 28 C.F.R. Part 39

The Court concludes that the allegations of negligence and fraud against MCRM fail to state a viable claim upon which relief can be granted under 29 U.S.C. § 794 and 28 C.F.R. Part 39. The common law tort concepts of negligence and fraud are not applicable under the Rehabilitation Act. 29 U.S.C. § 794(a) prohibits discrimination against Jeffrey Zibbell solely by reason of his disability. 29 U.S.C. § 794 and 28 C.F.R. Part 39 do not include or encompass other theories of tort liability sounding in negligence and fraud.

The negligence alleged in the complaint cannot make out a viable claim of intentional disability discrimination under 29 U.S.C. § 794. Simple negligence on the part of MCRM is not equivalent or tantamount to intentional discrimination by reason of Jeffrey Zibbell's disability.

The Court does not construe the complaint as pleading common law tort claims fornegligence and fraud under Michigan state law. The complaint does not invoke the Court's supplemental jurisdiction over any Michigan common law tort claims under 29 U.S.C. § 1367.

Moreover, to the extent that Cheryl Zibbell may be attempting to plead common law tort claims on behalf of Jeffrey Zibbell against defendant MCRM for negligence and fraud under Michigan state law, such claims would be subject to dismissal on the ground that they are barred by res judicata. Any such claims of negligence and fraud by Jeffrey Zibbell against defendant MCRM under Michigan common law could have been raised by Jeffrey Zibbell in 2007 in his prior lawsuit against MCRM in Case No. 2:07-cv-96.

III. Fed. R. Civ. P. 11(a); Cheryl Zibbell is Sole Plaintiff

It is necessary to clarify that the actual plaintiff in this case is Cheryl Zibbell and not Jeffrey Zibbell. The...

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