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GinA v. City of Augusta

United States District Court, D. Maine

May 24, 2016

GinA, Plaintiff
v.
CITY OF AUGUSTA, et al., Defendants.

          ORDER ON PENDING MOTIONS AND AFTER REVIEW PURSUANT TO 28 U.S.C. § 1915 AND COK WARNING

          Nancy Torresen United States Chief District Judge

         In her second amended complaint, Plaintiff GinA (f/k/a Gina Turcotte) alleges that Defendants City of Augusta, its police department, all of its police officers, William Stokes, Matthew Pouliot, William Bridgeo, Matt Nazar, Royce Watson, and Gregory Roy violated her civil rights and in particular violated her right to fair housing. Second Am. Compl. (ECF No. 14). Plaintiff has also filed a motion for appointment of stand-by counsel (ECF No. 17), and a motion to transfer a state court action to this court (ECF No. 9.)

         Plaintiff previously applied for and was granted in forma pauperis status. (ECF Nos. 4, 7.) Consequently, her second amended complaint is subject to screening prior to service of the complaint. 28 U.S.C. § 1915(e)(2).

         Following a review of Plaintiff’s pleadings, the Court denies Plaintiff’s motion for appointment of counsel, denies Plaintiff’s motion to transfer, and dismisses Plaintiff’s second amended complaint without service on Defendants.

         PROCEDURAL BACKGROUND

         Plaintiff filed her original complaint on February 18, 2016, and was granted leave to proceed in forma pauperis on February 18, 2016. On March 2, 2016, Plaintiff filed a motion to transfer. Through her motion to transfer, Plaintiff requests that this Court exercise jurisdiction over a forcible entry and detainer proceeding (FED) regarding an apartment that previously existed at 32 Court Street in Augusta.

         On March 16, 2016, the Magistrate Judge, after screening Plaintiff’s complaint, recommended dismissal of the complaint without service on Defendants. (ECF No. 10.) On March 17, 2016, Plaintiff filed a motion to amend her complaint, which motion the Court granted on March 22, 2016. On April 8, 2016, Plaintiff filed an amended complaint, and on April 21, 2016, filed a second amended complaint, which is now the operative pleading in this case. (ECF No. 14.)

         CASESUMMARY

         In her second amended complaint, Plaintiff alleges that Defendants discriminated against her and violated her rights to equal protection because of her status as “a disabled, low income homeless white woman.” Second Am. Compl. at 17 (ECF No. 14.) Plaintiff’s allegations relate a history of living in three separate dwellings in the City of Augusta: 239 Cony Street, 3 Washington Street Place, and 32 Court Street. In particular, Plaintiff complains of Defendants’ failure to protect her interest in remaining a tenant in an apartment building formerly located at 32 Court Street. The property, which was once owned by Defendant Gregory Roy, was acquired by the City or the State and demolished as part of the construction of the Capital Judicial Center. Plaintiff alleges that Defendant Roy misrepresented to her that the property would be available for rent for years to come. In addition, Plaintiff complains of conduct by Defendant Watson and the City’s failure to take any actions against Defendant Watson in connection with 239 Cony Street.[1] Plaintiff was evicted from both premises by means of forcible entry and detainer actions that she believes were unfairly decided as part of a conspiracy against her.

         Plaintiff also asserts that the Defendants who are or were employed by the City of Augusta and/or the State of Maine when she had housing-related difficulties in Augusta (the City Defendants) engaged in “illegal discrimination and chronic abuses” and failed to “provide her with safe affordable low income housing in Augusta which Congress has promised to protect in 42 USC § 3601 et seq., inter alia, ” “because she is a low income, disabled woman who exercises her constitutionally-protected right to have fair, safe and affordable low income housing.” Id. at 7 - 9, 13.[2] Plaintiff maintains that her personal experience is part of a “widespread disparate impact against low income, disabled and homeless classes of people in Maine.” Id. at 15.

         PLAINTIFF’S CLAIMS

         In ten counts, Plaintiff asserts that her claims are actionable under Title II of the Americans with Disabilities Act, the Fair Housing Act (three counts); the First Amendment, the Fourteenth Amendment, and 42 U.S.C. §§ 1981, 1983, 1985(3), and 1986. In addition to an award of compensatory and punitive damages, Plaintiff requests, inter alia, a permanent injunction barring the demolition of low income housing, an order requiring Defendants to build new or repair existing low income housing to remedy the past destruction of low income units in the City of Augusta, and “costs to establish and maintain a safe permanent residence for 5 years.” Id. at 67.

         DISCUSSION

         I. Plaintiff’s Motion for Appointment of Counsel

         Plaintiff has requested the appointment of a “Stand-by Attorney.” (ECF No. 17) (emphasis in original). Plaintiff seeks the appointment pursuant to the Fair Housing Act, 42 U.S.C. § 3613(b), which provides that “[u]pon application by a person alleging a discriminatory housing practice …, the court may appoint an attorney for such person.” Courts considering such motions generally rely on the legal standard applied to applications for appointment of counsel under Title VII of the Civil Rights Act, 42 U.S.C. § 2000e-5(f)(1). See, e.g., Hicks v. Makaha Valley Plantation Homeowners Ass’n, No. CIV. 1:14-cv-00254, 2015 WL 1608454, at *3 (D. Haw. Apr. 9, 2015) (collecting cases).

         In this Circuit, a court considering a request for counsel in a Title VII case must weigh three factors: (1) the merits of the plaintiff’s case; (2) the efforts by the plaintiff to obtain legal representation; and (3) the plaintiff’s financial ability, any one of which factors may be determinative. Gadson v. Concord Hosp., 966 F.2d 32, 35 (1st Cir. 1992). As explained below, Plaintiff’s housing discrimination allegations do not support an actionable claim. Because Plaintiff’s allegations lack merit, her motion for appointment is denied.

         II. Screening Analysis

         Under the federal in forma pauperis statute, federal courts are authorized to waive the filing fees ordinarily required to commence a civil action in order to “lower judicial access barriers to the indigent.” Denton v. Hernandez, 504 U.S. 25, 31 (1992); 28 U.S.C. § 1915(a). “[H]owever, Congress recognized that ‘a litigant whose filing fees and court costs are assumed by the public, unlike a paying litigant, lacks an economic incentive to refrain from filing’” cases without merit, resulting in substantial burdens on both the courts and prospective defendants. Id. (quoting Neitzke v. Williams, 490 U.S. 319, 324 (1989)). Indeed, in 1996 Congress amended the in forma pauperis statute to authorize[3] district courts to screen and dismiss a case proceeding in forma pauperis not only upon a finding that the case is frivolous or malicious, but also upon a finding that the Plaintiff’s allegations fail to state a claim or seek monetary relief against a defendant immune from such relief. 28 U.S.C. § 1915(e)(2)(B); Omnibus Consolidated Rescissions and Appropriations Act of 1996, Pub. L. No. 104-134, 110 Stat. 1321 (April 26, 1996).

         Plaintiff’s amended complaint is subject to screening under 28 U.S.C. § ...


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