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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
DAVID ROY WINTERS,
OFFICE OF HOUSING AND URBAN
DEVELOPMENT, et al.,
) 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
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favor. Reynolds v. CB Sports Bar, Inc., 623 F.3d 1143, 1146 (7th Cir. 2010). But
Fed. R. Civ. P. 8(a)(2)
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
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.
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.
ENTERED: September 20, 2013
/s/ Robert L. Miller, Jr.
United States District Court