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case 3:12-cv-00489-RLM-CAN document 28 filed 09/20/13 page 1 of 6

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

DAVID ROY WINTERS,

Plaintiff

v.

OFFICE OF HOUSING AND URBAN
DEVELOPMENT, et al.,

Defendant

)
)
)
)
) CAUSE NO. 3:12-CV-489 RLM
)
)
)
)
)

OPINION AND ORDER

David Roy Winters brought suit against the Office of Housing and Urban

Development (HUD), Secretary of HUD Shaun Donovan, Gene Glick Management

Corporation, Cindie Sater, in her capacity as “CEO and owner of Farrington of

South Bend Apartments,” and Robin Skarritt, the “Property Manager of Farrington

Apartments,” under 42 U.S.C. § 1983, Bivens, 5 U.S.C. § 552, and various state

laws, alleging that they discriminated against him based on his race and

disabilities and violated his constitutional rights when the manager of the

apartment he rents sent him a letter telling him that his rent might be increased.

The defendants have moved to dismiss Mr. Winters' complaint and supplemental

amendment in their entirety under Fed. R. Civ. P. 12(b)(6). For the following

reasons, the court grants the defendants' motions.

When considering a Rule 12(b)(6) motion to dismiss, the court construes the

complaint in the light most favorable to the nonmoving party, accepts all

well-pleaded facts as true, and draws all inferences in the nonmoving party's

case 3:12-cv-00489-RLM-CAN document 28 filed 09/20/13 page 2 of 6

favor. Reynolds v. CB Sports Bar, Inc., 623 F.3d 1143, 1146 (7th Cir. 2010). But

Fed. R. Civ. P. 8(a)(2)

"demands more

than an unadorned,

the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 556 U.S. 662,

678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). "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.'" Ashcroft

v. Iqbal, 556 U.S. at 678 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. at 570);

see also Morrison v. YTB Int'l, Inc., 649 F.3d 533, 538 (7th Cir. 2011); Brooks v.

Ross, 578 F.3d 574, 581 (7th Cir. 2009). A claim is plausible if "the plaintiff pleads

factual content that allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. at 678

(citing Bell Atlantic Corp. v. Twombly, 550 U.S. at 556). See also Swanson v.

Citibank, N.A., 614 F.3d 400, 404 (7th Cir. 2010)("the plaintiff must give enough

details about the subject-matter of the case to present a story that holds

together."). "Threadbare recital of the elements of a cause of action, supported by

mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 556 U.S. at 678.

Mindful of Mr. Winters' pro se status, the court reads his pleadings and

filings liberally. See Donald v. Cook County Sheriff's Dept., 95 F.3d 548, 555 (7th

Cir. 1996). "The essence of liberal construction is to give a pro se plaintiff a break

when, although he stumbles on a technicality, his pleading is otherwise

understandable." Hudson v. McHugh, 148 F.3d 859, 864 (7th Cir. 1998).

Nevertheless, the court is under "no obligation to act as counsel or paralegal to

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pro se litigants." Myles v. United States, 416 F.3d 551, 552 (7th Cir. 2005). There

is no duty to "fill in all of the blanks in a pro se complaint." Hamlin v. Vaudenberg,

95 F.3d 580, 583 (7th Cir. 1996). The court has tried to discern exactly what Mr.

Winters is alleging in his pleadings, but, even with a liberal reading of the

complaint and the inclusion of facts from other pleadings, it finds Mr. Winters'

complaint vague, conclusory, and factually and legally insufficient.

To state a claim under 42 U.S.C. § 1983, Mr. Winters must allege that he

was deprived of a federal right and that the persons who deprived him of that right

acted under color of state law. Gomez v. Toledo, 446 U.S. 635, 640 (1980); Jacobs

v. City of Chicago, 215 F.3d 758, 774-75 (7th Cir. 2000). Bivens claims are a

"federal analog” to suits against state officials under 42 U.S.C. § 1983, and require

the plaintiff to show that a federal officer violated his constitutional rights. Bivens

v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 397 (1971); Corr. Servs.

Corp. v. Malesko, 534 U.S. 61, 66 (2001).

Even if Gene Glick Management Corporation and Ms. Skarritt could be

considered “state actors,” as Mr. Winters contends, the complaint doesn’t state a

viable claim for relief against them under § 1983, nor does it state a viable claim

against HUD and Secretary Donovan under Bivens.

To comply with Fed. R. Civ. P. 8(a)(2) and survive a motion to dismiss, the

complaint must contain a "short and plain statement of the claim showing that

the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). Mr. Winters must "'state a

claim to relief that is plausible on its face,' which in turn requires sufficient

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factual allegations to permit the court to draw a reasonable inference that the

defendant is liable for the misconduct alleged." Engel v. Buchan, 710 F.3d 698,

709 (7th Cir. 2013) (quoting Twombly, 550 U.S. at 570). He hasn’t met that

burden.

For factual allegations to be sufficient, "the plaintiff must give enough

details about the subject-matter of the case to present a story that holds together."

Swanson v. Citibank, N.A., 614 F.3d 400, 404 (7th Cir. 2010). Legal conclusions

alone are insufficient and aren't entitled to the same presumption of truth given

to facts. Iqbal v. Twombley, 556 U.S. at 678-79. Mr. Winters alleges that he was

discriminated against by the property manager of his apartment complex, Robin

Skarritt, based on his race and disabilities in violation of the Equal Protection

Clause. He also alleges that various other rights were infringed upon, including

the right to privacy and "liberty interests." But Mr. Winters' complaint, awash with

legal jargon and conclusions, doesn't provide facts to support those allegations.

Rather, he alludes to "looks of resentment, racial prejudices, [and] suspicion" on

the part of other tenants and reports that there aren't many people of color at

Farrington Apartments. Mr. Winters also states that a letter from Robin Skarritt

thagt informed Mr. Winters about a possible increase in rent was "clear evidence"

of her "hostility . . . against people of color." Based on these observations, Mr.

Winters states that the defendants acted "outside their collective scope of

authorities, provided by the U.S. Federal Government, to discriminate against the

[P]laintiff because of race...." Mr. Winters also alleges that his right to privacy was

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violated because he believes someone at Farrington Apartments obtained

information about his bank account and reported it to Robin Skarritt, thus

prompting the letter regarding the possible increase in rent. The complaint says

nothing about Mr. Winters' disabilities.

The allegations of discrimination and other violations of constitutional rights

take the form of legal conclusions. The few “facts” that can be found simply state

that there aren't many people of color at Farrington, that some of Mr. Winters'

neighbors seem to express dissatisfaction with Mr. Winters living at Farrington,

and that Mr. Winters got a letter about a possible increase in rent that frightened

him. These facts don't support any claim of discrimination or violation of a

constitutional right by the named defendants.

While discussing the allegation that someone at Farrington obtained

information about his bank account and informed Robin Skarritt, Mr. Winters

briefly mentions the Freedom of Information Act, 5 U.S.C. § 552, but makes no

claim for relief. He simply states that he "shall submit (F.O.I.A.) Request to the

named defendants pursuant to 5 U.S.C. § 552(a). . ." Allegations such as these are

insufficient under Fed. R. Civ. P. 8(a)(2).

Mr. Winters' complaint also contains conclusory allegations of conspiracy,

'attempted embezzlement,' negligent or intentional infliction of emotional distress,

retaliation, and fraud based on state law. Indeed, the apartment complex

defendants have teased as many as 25 claims out of the complaint. But in light

of the dismissal of the federal claims, the court declines to exercise supplemental

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jurisdiction over those claims. See Fields v. Wharrie, 672 F.3d 505, 518 (7th Cir.

2012).

For the foregoing reasons, defendants’ motions to dismiss [Doc. Nos. 17 and

22] are GRANTED; defendants’ motion to strike plaintiff’s reply brief [Doc. No. 25]

is DENIED as moot; and the plaintiff’s motion to reconsider appointment of

counsel [Doc. No. 27] is DENIED for the reasons stated in Magistrate Judge

Nuechterlein’s order of December 13, 2012.

SO ORDERED.

ENTERED: September 20, 2013

/s/ Robert L. Miller, Jr.
Judge
United States District Court

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