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Phifer v. Secretary United States Dep't of Housing and Urban Development

February 2, 2009

JAMES BRYANT PHIFER, PLAINTIFF,
v.
SECRETARY UNITED STATES DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, DEFENDANT.



FINDINGS AND RECOMMENDATIONS

Plaintiff is proceeding pro se on a civil rights complaint arising from alleged housing discrimination.*fn1 The case came before the court on August 29, 2008, for the hearing of defendant's motion to dismiss for lack of subject matter jurisdiction. Bobbie J. Montoya, Esq. appeared on behalf of the moving party. Plaintiff was not present but communicated with the court by voice mail message on the morning of the hearing. In that message plaintiff indicated that he was unable to appear telephonically, as previously arranged, and would accept the consequences of non-appearance. The motion was submitted on the briefs on file.

Upon consideration of all written materials filed in connection with defendant's motion, and the entire file, the undersigned recommends that defendant's motion be granted and this action be dismissed.

PLAINTIFF'S CLAIMS

Plaintiff's complaint was filed in the United States District Court for the District of Columbia on January 10, 2008. On February 8, 2008, the case was transferred to the United States District Court for the Eastern District of California.

In the first paragraph of his complaint, plaintiff alleges jurisdiction founded on (1) federal question, 28 U.S.C. § 1331, (2) the Fair Housing Act (FHA), 42 U.S.C. § 3613, and the (3) Americans With Disabilities Act of 1990 (ADA), 42 U.S.C. § 12133-12202. (Compl. at 1.)

Plaintiff alleges that in January of 2006 he filed a written complaint with the Department of Housing and Urban Development (HUD) at its Office of Fair Housing and Equal Opportunity in San Francisco. He complained to HUD that the Sacramento Housing and Redevelopment Agency (SHRA) wrongfully denied his request for reasonable accommodation under the ADA and changed his enrollment date in a housing program by three years to prevent him from obtaining housing under that program. Plaintiff further alleges that his HUD complaint was handled as follows: an Equal Opportunity Specialist interviewed him in March 2006, made copies of documents, and took photographs; in May 2006 he received a Determination of No Reasonable Cause, a Preliminary Letter of Finding of Compliance, and a Letter of Finding of Compliance; in July 2006 he submitted objections and requested a review of the preliminary finding; in August 2006 he submitted an amendment to his request with additional documentation; in March 2007 he received a Formal Determination Sustaining Preliminary Letter of Findings. (Compl. at 1-2.)

Plaintiff claims that defendant Secretary (1) denied him a fair investigation, (2) conspired with SHRA to cover up evidence proving his claims, (3) discriminated against him because he is black and disabled, (4) violated his rights to due process and to be free from harassment, coercion, and intimidation, (5) abused its power by using its authority to persecute him, (6) uses housing programs to profile and segregate participants, and (7) fails to carry out its duty to administer programs within its jurisdiction in a manner that insures equal protection of the law. (Compl. at 2.)

Plaintiff prays for forty million dollars in punitive, compensatory, and statutory damages for discrimination, denial of due process, mental pain and suffering, harassment, coercion, and intimidation. (Compl. at 3.) Plaintiff suggests that "the court take some type of affirmative action to see that Defendants prohibited behavior does not continue" but does not request relief in the form of any specific order. (Compl. at 3.)

ANALYSIS

I. Legal Standards Applicable to Defendant's Motion to Dismiss Defendant's motion has been brought pursuant to Rule 12(b)(1) of the Federal

Rules of Civil Procedure. Rule 12(b)(1) allows a defendant to raise the defense, by motion, that the court lacks jurisdiction over the subject matter of an entire action or of specific claims alleged in the action.

"A motion to dismiss for lack of subject matter jurisdiction may either attack the allegations of the complaint or may be made as a 'speaking motion' attacking the existence of subject matter jurisdiction in fact." Thornhill Publ'g Co. v. Gen. Tel. & Elecs. Corp., 594 F.2d 730, 733 (9th Cir. 1979). When the motion attacks the existence of subject matter jurisdiction in fact, no presumption of truthfulness attaches to the plaintiff's allegations. Id. For such a motion, "the district court is not restricted to the face of the pleadings, but may review any evidence, such as affidavits and testimony, to resolve factual disputes concerning the existence of jurisdiction." McCarthy v. United States, 850 F.2d 558, 560 (9th Cir. 1988). Plaintiff has the burden of proving that jurisdiction does in fact exist. Thornhill Publ'g Co., 594 F.2d at 733.

II. Discussion

Defendant argues that the court lacks subject matter jurisdiction over this action because sovereign immunity protects the federal government where there ...


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