HUNTER et al v. DISTRICT OF COLUMBIA et al, No. 1:2012cv01960 - Document 99 (D.D.C. 2014)

Court Description: MEMORANDUM OPINION to the Motions to Dismiss Plaintiffs' First Amended Complaint. Signed by Judge Gladys Kessler on 8/18/14. (CL, )

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ANTHONY HUNTER, on his behalf and as parent of his minor daughter, A.H., Plaintiffs, v. THE DISTRICT OF COLUMBIA, a municipal corporation, THE COMMUNITY PARTNERSHIP FOR THE PREVENION OF HOMELESSNESS,: Civil Action No. 12-1960 (GK) COALITION FOR THE HOMELESS, and COMMUNITY OF HOPE, Defendants. MEMORANDUM OPINION Plaintiff Anthony Hunter A.H. 1 (collectively/ Partnership") for 1 allege ("the District// the Prevention or "D.C.") of that ( "COW1 ) (collectively 1 Defendants violated 1 the Community Homelessness the Coalition for the Homeless and Community of Hope Hunters and his minor daughter "the Hunters") filed this action against the District of Columbia Partnership ("Hunter") ("the ("the Coalition") 1 "Defendants//) . The various federal and local anti-discrimination statutes and were negligent. 1 Pursuant to Local Civil Rule 5.4(f) (2) Hunter S daughter will be referred to by her initials in order to protect her privacy. 1 1 This matter is presently before the Court on the District's Motion to Dismiss Plaintiffs' 65] and COR's Complaint Motion [Dkt. Oppositions No. [Dkt. to 66]. Nos. First Amended Complaint Dismiss Upon 73 Plaintiffs' consideration and 74], Replies [Dkt. No. First of [Dkt. the Amended Motions, Nos. 77 80], the United States of America's Statement of Interest No. 79], Interest the Responses [Dkt. Nos. to the 93 and 94], for the reasons stated below, in part and denied in United States' and [Dkt. Statement the entire record herein, of and the District's Motion is granted and part, Defendant COR's Motion is granted in part and denied in part. I . BACKGROUND A. Factual Background2 The District, ( "DHS") , through provides social its services Department of Human Services for indi victuals and families in the city who are homeless or at risk of homelessness. Amended Complaint ( "Compl. ") ~ 8. In doing so, contracts with various service providers. Id. 2 ~ First it entered into 9. For purposes of ruling on a motion to dismiss, the factual allegations of the complaint must be presumed to be true and liberally construed in favor of the plaintiff. Aktieselskabet AF 21. November 2001 v. Fame Jeans Inc., 525 F.3d 8, 15 (D.C. Cir. 2008); Shear v. Nat'l Rifle Ass'n of Am., 606 F.2d 1251, 1253 (D.C. Cir. 1979). Therefore, the facts set forth herein are taken from the First Amended Complaint [Dkt. No. 59]. -2- One such contractor, the Partnership, has been retained to manage and direct emergency shelter services. ~~ Id. 9-10. As part of its duties, the Partnership runs the District-owned D.C. General Shelter. Coalition to Id. ~ operate 10. The Partnership contracted with the the Virginia Williams Family Resource Center ("the Center"), which is the central intake facility for all families seeking placements in shelters. ~ 12. Id. The Partnership has also contracted with COH to manage the day-today operations at the District-owned Girard Street Apartments. Id. ~~ 8, 11. At the time of the events relevant to this case, Hunter lived with his six-year old daughter, A.H. Plaintiff ~~ Id. 7, 36. She was born with and continues to suffer from spina bifida and cri-du-chat wheelchair dressing syndrorne. 3 and and cannot eating." Id. ~~ 7, engage Id. in Her 3 35. As a result, "self -care, medical she uses such as conditions a bathing, leave her Cri-du-chat syndrome is a chromosomal condition "characterized by intellectual disability and delayed development, small head size low birth weight, and weak muscle tone in infancy." Cri-du-chat syndrome, Genetics Horne Reference, http://ghr.nlrn.nih.gov/condition/cri-du-chat-syndrorne (last visited June 30, 2014). Spina bifida is a "condition in which the bones of the spinal column do not close completely around the developing nerves of the spinal cord." Spina bifida, Genetics Horne Reference, http://ghr.nlrn.nih.gov/condition/spinabifida (last visited June 30, 2014). It can result in "a loss of feeling below the level of the opening, weakness or paralysis of the feet or legs, and problems with bladder and bowel control." Id. -3- particularly susceptible to infections, and doctors have recommended she live in an environment that minimizes exposure to infections and other communicable diseases. Id. December On 7 2011, I the Hunters immediate faced homelessness and applied for placement in a homeless shelter in the District. placement, ~ 37. Id. Hunter impairments and environment told with accessible. the bathroom for the 3 9. only The General ramp Hunters Shelter. into accessible. with several Id. the Id. were ~ ~ 43, placed 41. non-communal was wheelchair with a private request for a wheelchair the Hunters' reasonable uBuilding 12" up in of the Although the room was private, was 46. that mobility 39. building ~~ a environment the writing accommodation request. Id. had A.H. needed discussing The Center staff failed to include non-communal when Center that bathroom a unit the Hunters private 3 7, at staff included and accessible ~~ Id. request the that a While too steep to be D.C. the wheelchair The Hunters had to share a bathroom other families and the staff refused to let the Hunters eat in a separate room. Id. ~~ 47-48, 50. While residing in a urinary this shelter, A.H. developed tract infection resulting in the need for treatment at Children's Hospital. ~ 54. Asserting that Id. the placement did not meet A. H.'s needs, -4- Hunter repeatedly asked accessible unit. Id. ~~ that he and A.H. be relocated to an 51, 53. On or about December 29, the Hunters were moved to Girard Street Apartments, the 2011, where they were given a apartment. ~~ Id. 56, 66. The Hunters were told that private the only available unit at the Girard Street Apartments was on the third floor and that ~~ 69, 71. they would not receive There was no elevator, an accessible unit. Id. so Hunter had to carry A.H. and her wheelchair up and down two flights of stairs to arrive at or leave the apartment. Id. ~ 74. Finally, the hallways the unit were too narrow to accommodate A.B.'s wheelchair. in Id. ~ 75. There was at least one accessible first floor unit at the Girard Street Apartments that was occupied by a not need the accessible features. Id. ~ 78. family that did Hunter was told by the program director that she could not require that family to move and that the Hunters would need to stay in the third floor unit. Id. Hunters' Id. ~ had to On February 10, attorney, 86. after the intervention of Id. the ~~ the the Hunters were moved to a first floor unit. Because the wheelchair lift was broken, lift apartment. 2012, wheelchair 73, 86. up As a three steps to Hunter still get to this result of the need to lift and -5- carry A.B.'s wheelchair, Hunter experienced back and chest pain. Id. ~ 77. On March Street ~ 12, 2012, Apartments and the into Hunters moved out a supportive the Hunters of housing the Girard program. Id. 88. B. Procedural History On [Dkt. December No. 1], 6, 2012, and on April 29, 2013, Leave to File an Amended Complaint filed their Complaint they filed a Motion for [Dkt. No. 54] On May 17, 2013, the Motion was granted via Minute Order. On June ("Mot.") 3, 2 013, [Dkt. No. 65]. On June 7, Dismiss ("COH Mot.") filed the District 2013, Motion to Dismiss COH filed a Motion to [Dkt. No. 66]. On July 3, 2013, the Hunters their Opposition to COR's Motion ("COH Opp'n") COH filed its Reply filed a the District's Motion ( "COH Reply") [Dkt. No. 77] , [Dkt. No. 26, 2013, the District filed its Reply ("Reply") filed a 2 013, Statement of and [Dkt. Nos. 73, 74]. On July 24, 2013, with regard to the two negligence claims On July 2 6, ( "Opp' n") and an Answer 78]. On July [Dkt. No. 81]. the U.S. Department of Justice Interest related District's Motion to Dismiss [Dkt. No. 79] 4 to 4 and ( "DoJ") opposing the On October 29, 2013, Pursuant to 28 U.S.C. § 517, "[t]he Solicitor General, or any officer of the Department of Justice, may be sent by the -6- the District and COH both filed Responses to the Statement of Interest [Dkt. Nos. 93, 94]. II. STANDARD OF REVIEW Under Rule 12 (b) (6), a plaintiff need only plead "enough facts to state a claim to relief that is plausible on its face" and to "nudge[] [his or her] claims across conceivable to plausible." Bell Atl. Corp. v. 544, 570 naked (2007). "[A] assertions complaint devoid of [does not] omitted) (citing Twombly, at from 550 U.S. suffice if it tenders (2009) u.s. 550 line Twombly, factual further Ashcroft v. Iqbal, 556 U.S. 662, 678 the enhancement." (internal quotations 557). the Instead, complaint must plead facts that are more than "merely consistent with" a defendant's [must] allow[] liability; "the pleaded factual content the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. at 678 (citing Twombly, 550 U.S. at 556). " [O] nee supported by a claim has been stated showing any set of adequately, facts allegations in the complaint." Twombly, consistent 550 U.S. it may with at 563. be the Under the standard set forth in Twombly, a "court deciding a motion to Attorney General to to attend to the pending in a court State, or to attend any State or district in the United States interests of the United States in a suit of the United States, or in a court of a to any other interest of the United States." -7- dismiss must are true assume all the allegations in the complaint (even if doubtful in fact) [and] must give the plaintiff the benefit of all reasonable inferences derived from the facts alleged." Aktieselskabet AF 21., (internal quotations and citations omitted); Napolitano, reject 586 F.3d 1006, or address the 1007 (D.C. Cir. government's 525 F.3d at 17 see also Tooley v. 2009) (declining to argument that Iqbal invalidated Aktieselskabet) . III. ANALYSIS The District Consequently, and COH raise several similar arguments. the Court will address together the issues raised by both parties to each Count of the Complaint. 5 A. Counts I and III: Plaintiffs Have Sufficiently Alleged Claims Under Title II of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act Count I of violated Title ("ADA"), 42 the Amended Complaint II U.S.C. of § the 12131 Americans et seq, alleges with which that Defendants Disabilities provides that Act "no qualified individual with a disability shall, by reason of such 5 COH originally argued that Plaintiffs' claims against it were barred by the doctrine of release. COR Mot. at 19-21. Plaintiffs then filed an Addendum to their Settlement Agreement with the Partnership, clarifying that the document did not apply to or settle any claims with any other organizations. Dkt. No. 69-2. The Court approved this addendum in a Minute Order on June 17, 2013, and COH correspondingly withdrew this argument. COH Reply at 2 n.l. -8- disability, be excluded from participation in or be denied the benefits of the services, entity, 42 programs, or activities of a public or be subjected to discrimination by any such entity." u.s.c. 12132. § Count III of the Amended Complaint alleges that Defendants violated Section 504 of the Rehabilitation Act, et seq. Similar to Title II, activities receiving 29 U.S.C. § 701 Section 504 prohibits programs and federal funds basis of disability. 29 U.S.C. § from discriminating on the 794 (a) individual with a disability ("No otherwise qualified shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance . . "); see also Young v. D.C. Hous. Auth., No. 13-652, 2014 WL 948317, at *5 (D.D.C. Mar. 12, 2014). The focus ADA because of it the Rehabilitation Act only applies to is narrower than the programs receiving federal financial assistance. Powell v. Nat'l Bd. of Med. Examiners/ 364 F.3d 79, Because funds 1 85, opinion corrected 1 Plaintiffs Compl. ~~ allege 8-9, the that 511 the F.3d 238 District Rehabilitation Act (2d Cir. receives claims 2004). federal and the Title II claims against the District may be considered together. Mot. at 5-6, 6 n.4; Opp 1 n at 4; -9- see also Am. Council of the Blind v. (noting Paulson, that substance the that 253 F.3d 1260 Cir. n.2 provisions interpreting (citation (D.C. 1256, statutory "cases interchangeable" F.3d 249, 525 1999) are either omitted)); (D.C. so are Harrison Cir. 2008) similar in applicable and v. 174 Rubin, ("Claims and defenses under the [ADA and the Rehabilitation Act] are virtually identical."). COH argues that the ADA and the Rehabilitation Act do not apply to it, for various reasons. The Court will first address the substantive arguments raised by the District and then will resolve applicability of these statutes to COH. 1. Plaintiffs Are Not Required to Prove Intentional Discrimination to Plead a Claim for Declarative Relief To establish a prima facie case under either Title II or the Rehabilitation Act, a plaintiff must allege that a qualified individual with a disability; subject to the Acts; and participate programs, in or (3) benefit or activities, (2) § 794 (a); she is the defendant is she was denied the opportunity to from the defendant's services, or was otherwise discriminated against by the defendant because of her disability. 29 U.S.C. (1) see also McElwee v. -10- 42 U.S.C. Cnty. § 12131; of Orange, 700 F.3d 635, 640 (2d Cir. 2012) (citing Henrietta D. v. Bloomberg, 331 F.3d 261, 272 (2d Cir. 2003)). 6 Although a plaintiff "need not plead a prima facie case of discrimination" in Swierkiewicz Sorema District alleged v. does a not prima order N.A., dispute facie to survive 534 that case a U.S. motion 506, Plaintiffs under the 515 have Acts. 7 to dismiss, (2002), the sufficiently Instead, the 6 Title II defines "discriminate" to include a failure to make "reasonable modifications." See 42 U.S.C. §§ 12131(2), 12132; see also 28 C.F.R. § 35.130 (b) (7) ("A public entity shall make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity."); see also McElwee, 700 F.3d at 640-41 (2d Cir. 2012) (noting that "[u]nder both statutes, a defendant discriminates when it fails to make a reasonable accommodation that would permit a qualified individual to have access to and take a meaningful part in public services") (internal quotation marks and citation omitted) The parties use the term "reasonable accommodations" to refer to these requests. This Court will also use "reasonable accommodations" to encompass "reasonable modifications" under Title II. See McGary v. City of Portland, 386 F.3d 1259, 1266 n.3 (9th Cir. 2004) (citation omitted) ("Although Title II of the ADA uses the term 'reasonable modification,' rather than 'reasonable accommodation,' these terms create identical standards."). 7 In its Response to the United States' Statement of Interest, the District argues for the first time that Plaintiffs failed to sufficiently plead that the District discriminated against A.H. "because of" her disability. Def. Dist. of Columbia's Resp. to Statement of Interest of the United States of America ("Response") at 9-10. As the District failed to raise this -11- District's primary argument is that Plaintiffs have failed to allege facts to support a claim that the District acted with the required intent. Mot. at 5-8. As the District intentional admits discrimination compensatory damages. in is its only Response, relevant Response at 9 n. 5; Cnty. Hosp. Dist., 701 F.3d 334, 344 the issue of the issue of to Liese v. Indian River (11th Cir. 2012) (observing that failure to provide reasonable accommodation "by itself will not sustain a claim for compensatory damages; the [plaintiffs] must also show by a preponderance that the [defendant] 's failure to provide appropriate result of Little Rock, every Court intentional 639 F.3d of Appeals [reasonable accommodations] discrimination"); 384, to 388 Meagley (8th Cir. address the 2011) issue has v. was the City (noting of that held that a plaintiff may not recover compensatory damages under the ADA or the Rehabilitation Act without proof of discriminatory intent) . Therefore, Plaintiffs do not have to allege discriminatory intent in order to be entitled to the declaratory relief they request. Compl. at 38 (praying for declaratory relief); Am. argument in either its Motion or its Reply, it has waived it. See Alston v. Dist. of Columbia, 561 F. Supp. 2d 29, 37 (D.D.C. 2008); cf. Williams v. Romarm, SA, No. 13-7022, 2014 WL 2933222, at *3 (D.C. Cir. July 1, 2014) ("Questions not presented and argued by the parties in a sequence affording appropriate consideration are forfeited, and we accordingly decline to rule on the issue since it was not properly raised."). -12- Council, 525 F. 3d at 1260 (noting that require proof of discriminatory intent v. Choate, 469 U.S. Corp., 184 F.3d 287, 1147, 295 11 "section 504 ) does not (discussing Alexander (1985)); Powers v. MJB Acquisition 1152 (lOth Cir. 1999) ("[I]ntentional discrimination is not an element of the plaintiff 1 s prima facie case. 11 ) ¢ Consequently, Plaintiffs have sufficiently alleged violations under both Title II of the ADA and the Rehabilitation Act for declarative relief. 2. The Plaintiffs Have Sufficiently Alleged Deliberate Indifference By the District of Columbia District argues that Plaintiffs have failed to sufficiently allege that it acted with deliberate indifference, and, hence, that Plaintiffs, request for compensatory damages under the ADA and the Rehabilitation Act must be dismissed. 8 8 In a footnote, the District argues that it does not "concede that "deliberate indifference is the appropriate standard and suggests that Plaintiffs must plead "intentional discrimination. Mot. at 5 n. 3. Our Court of Appeals has not addressed the appropriate standard, but almost all other Courts of Appeal to reach the issue have concluded that the "deliberate indifference standard is appropriate. See Liese, 701 F. 3d at 345-47 (noting that Eighth, Ninth, Tenth, and Second Circuit have held that deliberate indifference standard applies, and choosing to apply that standard); but see Delano-Pyle v. Victoria Cnty., Tex., 302 F.3d 567, 575 (5th Cir. 2002) (finding that "[t]here is no 'deliberate indifference, standard applicable to public entities for purposes of the ADA or the Rehabilitation Act). However, since the District does not provide support for its argument that a higher standard should apply, the Court will assume without deciding that the deliberate indifference standard applies. -1311 11 11 11 11 Deliberate indifference occurs when a "defendant knew that harm to a federally protected right was substantially likely and . failed to act on that likelihood." Liese, (quoting T.W. ex rel. Wilson v. Fla., 610 F.3d 588, 604 Sch. Bd. of 701 F.3d at 344 Seminole (11th Cir. 2010)); Meagley, Cnty., 639 F.3d at 389 (noting that deliberate indifference can be "inferred from a defendant's deliberate indifference to the strong likelihood that pursuit of its questioned policies will likely result in a violation rel. of federally Barber v. Colo. protected rights") Dep't of Revenue, (quoting Barber 562 F.3d 1222, ex 1228-29 (lOth Cir. 2009)). 9 Plaintiffs present two different theories under which the District can indifference. be First, found to have acted with deliberate Plaintiffs allege the District acted with deliberate indifference obligations under the by failing to enforce ADA. Second, Plaintiffs its own allege the District is responsible for the deliberate indifference of its contractors. The Court will address each theory in turn. 9 The District argues that Plaintiffs have to allege and prove "actual knowledge" of a violation to establish deliberate indifference. Mot. at 6-8; Reply at 2-5. However, the case it cites for that proposition, Liese, clearly states that the standard only requires an allegation that a defendant have knowledge that harm to a right is "substantially likely," not that it have actual knowledge of a violation. Liese, 701 F.3d at 344. -14- a. Direct Liability First, Plaintiffs allege that the District was deliberately indifferent to its affirmative obligation under the ADA to ensure that its contractors not discriminate in the provision of public services on the basis of disability. The District argues that it does not have any affirmative obligation to monitor the actions of the contractors. Regulations promulgated by the DoJ make clear that public entities cannot provision § of 35.130 (b) (1) liability escape services to a by contracting private entity. away the C.F.R. 28 ("A public entity, in providing any aid, benefit, or service, may not, directly or through contractual, licensing, or other arrangements, on the basis of disability discriminate against an individual with a disability); 35 , App ' x A, at 51 7 (2 0 02 ) public entities are covered, ("All governmental II id. activities pt. of even if they are carried out by contractors. For example, a State is obligated by title II to ensure that the services, programs, park inn operated under contract and activities of a State by a private entity are in "arbitrary, capricious, or compliance with title II's requirements.") Unless the DoJ regulations are manifestly contrary to the statute," "controlling weight." Chevron U.S.A., -15- they should be given Inc. v. Natural Res. Def. Council, Inc., Arlington 467 v. U.S. FCC, ambiguities will interpretation, 133 be not 837, S. 844 Ct. resolved, by the (1984); 1863, see 1868 but by the City of ("Statutory (2013) within the bounds courts also of reasonable administering agency."). The District does not argue that the regulations are arbitrary or capricious. Indeed, all of the courts that have addressed the regulations have concluded that they are entitled to deference. See, 00409, e.g., Kerr v. Heather Gardens Ass'n, No. 2010 WL 3791484, at *9 (D. Colo. Sept. 22, 2010) 09- ("[T]he regulations directing that a public entity is liable under Title II for direct conduct through contracting, capricious, the as well licensing, as indirect or the like, or manifestly contrary to regulations are entitled conduct, to the achieved is not arbitrary, statute. Therefore, controlling weight.") (citing Chevron, 467 U.S. at 844); Armstrong v. Schwarzenegger, 622 F.3d 1058, 1065-67 (9th Cir. 2010) history and holding that (analyzing statute and legislative regulations "reflect argues the the fairest reading of the statute"). Instead, the regulations are District that statute and the satisfied so long as the public entity merely requires its contractors to comply with the statute. Mot. at 67. Its only contained citation in an to support illustration this in the -16- argument DoJ' s Title is II language Technical Assistance Manual stating that a State parks department would be "obligated to ensure restaurant in a by contract" State park that a "operated in a privately manner that owned enables the parks department to meet its title II obligations." Id. at 6 (citing United States Dep' t of Justice, Americans With Disabilities Act: Manual ("TAM") the ADA other illustrations obligations including of particular a Illustration ensure its title II." TAM 4 contracts § District Court examples "support the a in II Technical the are Assistance a carried District conclusion demonstrate go beyond contracts that ill us. TAM entity its states II-1. 3000, for in public language contractors: that Title The II-1.3000, illus. 1). § However, Civil Rights Div., 4 public out in Colorado that a simply with private entity "must accordance (emphasis of that added). As observed, public entity with the these cannot escape its obligations under Title II by delegating its duties to a private entity entity. remains authority or Indeed, subject duty to to in Title another, each II illustration despite private its entity." the public delegation of Kerr, WL 2010 3791484, at *10. A number of courts have confirmed that public entities have an obligation with title II to of ensure the that ADA. their private Henrietta -17- D., contractors 331 F.3d at comply 284-86 (holding that general rules of contract apply and supervisory liability exists under Rehabilitation Act); Hahn ex rel. v. 1054 n.2 Linn Cnty., 2002) Iowa, (noting that 191 F. Supp. 2d 1051, its Barta (N.D. Iowa earlier opinion had concluded that "a contractual relationship between a public and a private entity may obligate the public entity to ensure that the private entities with which it contracts comply with the public entity's Title II obligations,,); James v. No . 9 7 - 7 4 7 , 19 9 9 WL 7 3 51 7 3 , Peter Pan Transit Mgmt., at * 9 Inc., ( E . D . N . C . Jan . 2 0 , 19 9 9 ) ( "A public entity must not only ensure by contract that the private entity with further, for it contracts complies with title II, but must ensure that the private entity complies with the contract.,,); (N.D. whom Deck v. Ohio 1999) failing to City of Toledo, 56 F. Supp. 2d 886, 895 (noting that public entity can be held liable oversee its contractors, even if it did not affirmatively intend to discriminate) . In sum, the District has not presented any support for its argument that it has no obligation to ensure that its private contractors comply with its ADA and Rehabilitation Act obligations, and all courts to address the issue have found that they have such an obligation. Thus, the Court holds that Plaintiffs may proceed on a theory that the District is directly -18- liable for its deliberate indifference to its obligations under the ADA and the Rehabilitation Act. b. Plaintiffs Vicarious Liability also argue for that the the District deliberate can be indifference held vicariously liable of its contractors. The District concedes that a public entity can be held liable under the ADA for the deliberate indifference of its employees or agents. Mot. at 6 n.5. It argues, however, that the other Defendants in this case are independent contractors for whose actions it cannot be held liable. Id. As a "general for liable actions Interstate Fire 7024, W.M. & Cas. an 11 entity taken Co. by v. 2014 WL 3538081, at *6 is Wash. (D.C. held vicariously contractor. Hosp. Ctr. Corp., Cir. July 18, 2014) 673 A.2d 647, No. 13- (citing 651 (D.C. "In determining whether a person is an employee or an independent multiple not independent an Schlosser Co. v. Md. Drywall Co., 1996)). the rule, contractor, District specified factors. "decisive test is 11 Id. whether of courts consider ( citations omit ted) . However, the Columbia employer has the right to control and direct the servant in the performance of his work and the manner in which the work is to be done. quotations and citation omitted) . -19- 11 Id. (internal Plaintiffs allege that the District not only had the right, but the obligation, to control and ensure its contractors' compliance with the ADA and the Rehabilitation Act. Compl. 10, 59, 96, argument factual 100. that contractors that are are not 485-86 (D.C. independent and resolved in a motion to dismiss. 679 A.2d 480, 8, Plaintiffs then point out that the District's its disputes ~~ cannot Beegle v. 1996) is be based on appropriately Rest. Mgmt. , Inc. , (relying on information from discovery to determine the nature of the employment relationship between an individual and a company) Area Transit Auth., 1991) ("[W]hether independent No. or contractors 91-646, not the cannot i Anderson v. 1991 WL 197024, subcontractors be determined Wash. at *2 Metro. (D.D.C. were on in fact a motion to dismiss.") . 10 Although the District may again raise the issue of its relationship to its contractors after discovery, have sufficiently pleaded facts that, Plaintiffs in conjunction with "the benefit of all reasonable inferences" Aktieselskabet AF 21., 525 10 Moreover, even if the contractors are found to be independent, the District may still be held vicariously liable under various exceptions to the independent contractor rule. See Cooper v. U.S. Gov't & Gen. Servs. Admin., 225 F. Supp. 2d 1, 5 (D.D.C. 2002) (noting that the rule is "riddled with exceptions specifying certain conditions under which employers may be held vicariously liable," including an exception for "non-delegable duties arising out of some relation toward the public") (citing Restatement (Second) of Agency, § 219 (1958)). -20- F.3d at 17, allow them to proceed on their theory of vicarious liability at this time. 3. The The District's Remaining Arguments Lack Merit Court will briefly address the remaining arguments raised by the District. First, Complaint the District argues that various allegations in the are inconsistent. expressly permit Civ. P. 8 (d) (2) claim or parties Mot. at to plead 8-9. in the The Federal alternative. Rules Fed. R. ("A party may set out 2 or more statements of a defense alternatively or hypothetically, single count or defense or in separate ones. alternative statements, either If a in a party makes the pleading is sufficient if any one of them is sufficient."). Moreover, the Rules specifically permit a party to "state as many separate claims or defenses as it has, regardless of consistency." Fed. R. any inconsistency in Plaintiffs' Ci v. P 8 (d) (3) . allegations Therefore, is not a basis to dismiss their claims. Second, the This the Complaint are argument, District not too, argues pleaded with misunderstands Plaintiffs need merely include a the claim," Fed. R. that Ci v. P. various "sub-counts" specificity. the relevant Mot. at of 9-11. requirements. "short and plain statement of 8 (a) (2) , sufficient to put a defendant on notice of the claims against it. Kingman Park Civic -21- Ass'n v. Williams, 348 F.3d 1033, 1040 (D.C. Cir. 2003) (" [T]he complaint need only set forth a short and plain statement of the claim giving grounds the upon defendant which it fair notice rests.") of the (internal claim and the quotations and citations omitted) . Plaintiffs specifically ~~ 97, 104, submitted a incorporates 111, specificity, 119, the detailed Complaint, all 130, of 143, 149. Moreover, "sub-counts" the facts identify the alleged. 122-124, 140. Thus, Plaintiffs have Compl. rather than lack various Plaintiffs intend to pursue as to each claim. 116, and each claim Id. ~~ theories 101, provided more 108, notice and information than is required by the Rules, and this is not a basis to dismiss these claims. In sum, none of the District's remaining arguments support a dismissal of Plaintiffs' claims. 4. Plaintiffs Have Sufficiently Alleged That COH Is a "Public Entity" COH argues that it is not subject to the ADA because it is not a defines "public a entity." "public entity" and "any department, instrumentality of a COH as agency, Mot. at 5-8. "any State or 42 U.S.C. local -22- or local 12131 government," special purpose district, State or States § or other government." 42 u.s.c. § 12131 (1) (A) The (B) . I District of Columbia. Id. § The TAM notes that, term includes "State" the 12103(2). "[i]n some cases, it is difficult to determine whether a particular entity that is providing a public service . then is in fact a public entity." TAM lists four relationship factors between the to be considered entity and the in § II.l.2000. examining governmental It "the unit to determine whether the entity is public or private": 1) Whether the entity is operated with public funds; 2) Whether the entity's government employees; employees are considered 3) Whether the entity receives significant assistance from the government by provision of property or equipment; and 4) Whether the entity is governed by an independent board selected by members of a private organization or a board elected by the voters or appointed by elected officials. Id. It is undisputed that Plaintiffs have alleged that COH is "operated with public funds," and that COH "receives significant assistance Compl. ~ from the government 11. COH Plaintiffs have employees or is argues failed by provision of property." that this to allege governed by a is that board insufficient COH because "employs government elected appointed by elected officials." COH Mot. at 8. -23- See by voters or The TAM does not state that all four factors notes § that all II.1.2000. fail four Thus, are "[f]actors to be alleged all it considered. COR's insistence that Plaintiffs' because they have not be Rather, satisfied for an entity to be considered "public." must TAM claim must four of these factors lacks merit. COH cites a number of cases that concluded -- on motions for summary judgment on a full factual that record a particular entity is private. See COH Mot. at 6-7 (citing Edison v. Douberly, 604 F.3d 1307, 1311 (11th Cir. 2010); Green v. City of New York, 465 F.3d 75, 79 Work Release Ctr., 787 F. (2d Cir. 2006); Maxwell v. S. Bend Supp. 2d 819, Obert v. The Pyramid, 2005 WL 1009567 822 (N.D. Ind. 2011); (W.D. Tenn. 2005); Doe v. Adkins, 110 Ohio App. 3d 427, 434-35 (1996)). COH argues should be that the applied here. analysis Given that relied on there is in no these full cases factual record in this case and that Plaintiffs have alleged sufficient facts that, in combination with "all reasonable inferences" Plaintiffs' favor, support their entity providing a public service, claim that COH is a in public the Court will not dismiss the ADA claim against COH at this time. See Aktieselskabet AF 21., 525 F.3d at 17 (internal quotations and citations omitted). -24- 5. COH Plaintiffs Have Sufficiently Alleged that COH Is a Recipient of "Federal Financial Assistance" argues also Rehabilitation Act that because do not constitute that include a at 13-14 1202, COH argues federal not receive "federal "purely compensatory payments" financial Jacobson assistance, v. Delta Airlines, 911 F.2d 1377, 1382 1210; U.S. cases entity held that providing DeVargas, 911 Olympic Comm., (noting but "payments Inc., COH Mot. 742 F.2d courts the (lOth Cir. 1990)). should alleged look that "[t]he 1382-83; see F. 2d 1136, 1146 Supp. test to determine whether the intended "to Jacobson, F.2d at 94 to assistance provide assistance or merely to compensate." at the (9th Cir. 1984), and DeVargas v. Mason & Hanger-Silas Mason Co., Inc., Those to subsidy" do constitute such assistance. (citing 1209 subject at 13-15. Relying on cases from that federal not does it financial assistance." COH Mot. other Circuits, is it also Shepherd v. (D. whether 742 F. 2d Colo. a 2000) government transfer of money to an entity is a subsidy is whether Congress or the federal agency administering the program intended to subsidize the entity.") Plaintiffs funds and allege that for homeless programs, services." Compl. ~ 11. COH "receives federal and District health programs and other programs In addition, -25- they allege that COH "has received substantial recent federal grants from [the Departments of Health and Human Services] and [Housing and Urban Development]." Compl. ~ 11. Health and Human Services ("HHS") has promulgated a regulation specifically noting that grants of funds are federal financial assistance. 42 C.F.R. For purposes of this motion to dismiss, conjunction with the HHS regulation, Plaintiffs' claim assistance. See that Shepherd, COH 94 84.3 (h) (1). these allegations, in are sufficient to support receives F. § Supp. federal 2d at 1146-47 financial (denying defendant's argument that claim should be dismissed as a matter of law where plaintiff alleged defendant received federal grant, based on "the broad definition of "financial assistance" in Jacobson, cited with approval by the Tenth Circuit in DeVargas," and concluding that plaintiff "should be allowed the benefit of discovery"). Therefore, the Court will not dismiss the Rehabilitation Act claims against COH at this time. 6. Summary Plaintiffs have sufficiently pleaded claims under both the ADA and the Rehabilitation Act for both declarative relief and compensatory damages. -26- Count II: Plaintiffs Have Sufficiently Alleged a Claim Under the Fair Housing Act B. In 1968, Congress passed the Fair Housing Act Title VIII of the Civil Rights Act. § 804, As 82 Stat. 83 (1968), originally enacted, on race, color, of Edmonds v. Pub. L. 90-284, codified at 42 U.S.C. the ("FHA") § as Title VIII, 3601 et seq. FHA prohibited discrimination based religion, or national origin. Oxford House, Inc., 514 U.S. Id.; see also City 725, 728 n.1 (1995). The Supreme Court has emphasized that the language of the FHA is "broad and inclusive," construction." 205, 209, Trafficante 212 (1972); and v. 1988, Metro. of Congress 1988, Pub. L. a Life Ins. Co., amended No. "generous Inc. v. 409 U.S. Dist. of coverage to (D.C. Cir. 1997). individuals with disabilities. Act given see also Samaritan Inns, Columbia, 114 F.3d 1227, 1234 In be must the See 100-430, FHA The to extend Fair Housing Amendments 102 Stat. 1619. The Act's definition of discrimination was expanded to include "a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford [handicapped persons] dwelling." 42 U.S.C. As a § equal to use and enjoy a 3604 (f) (3) (B). preliminary matter, FHA claim is a opportunity Plaintiffs make "failure to accommodate" -27- claim. clear that Compl. ~ their 108 (c) (citing 42 U.S.C. to accommodate" discrimination. § 3604 claims (f) (3) (B)); Opp'n at 26. Such "failure do not require reasonable plaintiff to prove that does the . ") . The challenged District relying solely on 2922 Sherman Ave. 444 F.3d 673 (D.C. Cir. not argues Tenants' 2006) argument that Plaintiffs' Inc. to intended the v. ("A claim require policy the to contrary Ass'n v. Dist. of which does not even address any failure to accommodate claims. Thus, intentional intentional (lOth Cir. 2012) accommodation discriminate Columbia, of See Cinnamon Hills Youth Crisis Ctr. , St. George City, 685 F.3d 917, 922-23 for proof the District's FHA claims fail for failure to allege discrimination lacks any merit and no case law supports it. See Mot. at 15-16. Moreover, the District is incorrect Plaintiffs' that characterization of their FHA claims as "failure to accommodate" claims constitutes an abandonment of any other claims. Reply at 11. A failure to accommodate is a form of discrimination under 3604 (f) (3) conditions u.s.c. § i sections under 3604 (f) . and (f) (1) which such (f) (2) set discrimination Plaintiffs are is pursuing out different unlawful. 42 "failure to accommodate" claims under both subsections (f) (1) and (f) (2). The Court will now turn to the substantive arguments raised by the District and COH. -28- 1. "Dwelling" The District and COH argue that neither DC General nor the Girard Street Apartments is a "dwelling" under the FHA. The FHA defines a "dwelling" in relevant part "any as building, structure, or portion thereof which is occupied as, or designed or intended for occupancy families." 42 U.S.C. as, a residence by one or more 3602(b). § The FHA does not, however, define "residence." Most courts that have considered the scope of the term have relied on the definition used in United States v. Hughes Memorial Home, 396 F. Supp. 544 dwelling (W. D. place, Va. 197 5) , abode or which is habitation "a temporary or permanent to which one intends to return as distinguished from the place of temporary sojourn or transient visit." Id. at 549 (citing Webster's Third New International Dictionary); see Defiore v. City Rescue Mission of New Castle, No. 12, 2013); 12-1590, Jenkins v. 643 F. Supp. 2d 507, 2013 WL 7157990, at *3 (W.D. Pa. Dec. New York City Dep't of Homeless Servs., 517-18 (S.D.N.Y. 2009) "have continued to look to the Hughes (noting that courts 'plain meaning' analysis in determining what constitutes a dwelling under the FHA") aff'd on other grounds, Foster, 391 F. App'x 884 F. Supp. 1169, 1173 81 (N.D. citing Hughes). -29- (2d Ill. Cir. 2010); 1995) Woods v. (listing cases Applying the definition used in Hughes, several courts have concluded that temporary homeless shelters are "dwellings" under the FHA. Defiore, 2013 WL 7157990, at *3-*4; Boykin v. Gray, 895 F. Supp. 2d 199, 207 517-18; Woods, (D.D.C. 2012); Jenkins, 884 F. 643 F. Supp. 2d at Supp. at 1173-74. Other courts have noted without deciding that it is likely that at least some temporary shelters are "dwellings." 490 F.3d 1041, 1044 n.2 Cmty. House, (9th Cir. 2007) Inc. v. City of Boise, (en bane). The District and COH argue that this Court should instead rely on two cases that concluded that temporary homeless shelters were not "dwellings." The first case, Johnson v. Dixon, 786 F. Supp. 1 (D.D.C. 1991), is not persuasive, since it merely expressed "doubt" that an emergency overnight shelter would qualify as a dwelling, and then assumed without deciding that it did so for purposes of its analysis. of "doubt," with no analysis, dicta. In any event, Id. at 4. This expression is neither holding nor persuasive it is certainly not, as Defendants argue, "the law of this Circuit." The second case, Rescue Mission Intermountain Fair Hous. Ministries, aff'd on other grounds, 717 F. 657 F.3d 988 Supp. 2d (9th Cir. Council v. Boise 1101 (D. 2011), Idaho), concluded on a motion for summary judgment, not a motion to dismiss, a particular homeless shelter did not qualify as a -30- that "dwelling." Id. at 1109-12. The procedural distinction between that case and this one is significant. To justify its the conclusion, Intermountain court analyzed many specific factors regarding the terms of residence at the shelter - a factual analysis that is clearly inappropriate at this stage in these proceedings. See Abigail Alliance for Better Access to Developmental Drugs v. Von Eschenbach, 495 F.3d 695, 723 (D.C. Cir. 2007) (noting that factual questions were "not properly resolved at the motion-todismiss stage when all reasonable inferences must be drawn to the plaintiff's benefit"). Moreover, the facts upon which the Intermountain court based its conclusion are very different from the facts alleged here. The court relied on the following evidence: [G]uests of the shelter are not charged a fee for staying in the shelter; are assigned a bed in a dormitory-style room, a hallway, or the day room; generally are allowed to stay for a maximum of seventeen consecutive nights (except during the winter months when the maximum stay is more flexible due to the danger that cold weather presents to homeless individuals during the night); are not guaranteed the same bed each night they return; with limited exceptions, are not allowed to stay at the shelter during the day, are required to leave the shelter every morning by 8:00 a.m., and may not return, except for lunch, until 4:00 p.m.; are not allowed to leave the shelter once they arrive in the evening; generally are not allowed to stay at the shelter on a particular evening if they do not check in during the designated hours; are not allowed to personalize the bed area assigned to them or leave belongings in their bed area; and, with extremely limited exceptions, are not -31- allowed to receive phone calls, mail, or have visitors at the shelter. 717 F. Supp. 2d at 1111. In contrast, Plaintiffs allege that there is no time limit set on how long residents can remain at either D.C. General or the Girard Street Apartments, remain there indefinitely. longer than the shelter at issue Hunters in stayed at D.C. December 29, 2011); Street Apartments ~~ ~~ Compl. (Girard Street Apartments) . shelters and that the Hunters expected to Indeed, 42-43 General); ~ 57 the Hunters stayed at both seventeen-day maximum imposed by the Intermountain. General 69, 88 between (D.C. ~~ Id. 37, 56 between December 7, (alleging 2011, and (alleging Hunters stayed at Girard December 29, 2011, and March 12, 2 012) . In addition, the Hunters allege that D.C. General provides families with their own rooms, guarantees individuals the right to access their rooms at all times of the day, to return to the same room each day, keep their belongings in their room. allege that Community of Hope apartment- style room with a key, before entering apartment ~ families to 43. The Hunters also each family its own requires staff to give notice units, -32- and permits Id. gives allows families and permits residents to decorate ~~ their units and place personal items in them. Id. 64-67. All of these factual allegations support Plaintiffs' claim that both D.C. General and the Girard Street Apartments are "a temporary dwelling place, abode or habitation to which one intends to return as distinguished from the place of temporary sojourn or transient visit," Hughes, neither Johnson nor 396 F. Supp. at 549. Thus, Intermountain Plaintiffs' FHA claim at this time. See Boykin, at 206-07 (rejecting Intermountain, District's and holding that dismissing supports 895 F. Supp. 2d on reliance Johnson the FHA was not and categorically inapplicable to homeless shelters). In addition, Development explicitly the Department has ( "HUD") identifies of promulgated "sleeping and Urban regulation which Housing a accommodations in shelters intended for occupancy as a residence for homeless persons" as an example of "the federal a "dwelling unit." 24 C.F.R. agency primarily charged with and administration" of the FHA. Meyer v. 287 (2003) regulation § The should District not be has offered entitled to 100.201. the Holley, no the HUD is implementation 537 U.S. reason 280, why the deference due reasonable agency interpretations. See Chevron, 467 U.S. at 844; see also United States v. Univ. of Neb. at Kearney, 940 F. Supp. -33- 2d 974, 981 (D. "dwelling unit"); that "the Neb. 2013) Cmty. regulations specifically (deferring House, 490 that shelters qualify as 'dwellings'") In sum, Plaintiffs have HUD's F.3d at interpreting contemplate to the definition of 1044-45 n.2 coverage 'residences' of within (noting the FHA homeless 11 sufficiently alleged facts that, with "the benefit of all reasonable inferences," Aktieselskabet AF 21., 525 F.3d at 17, support their claim that both D.C. General and the Girard Street Apartments were "dwellings" under the FHA. 2. "Sale or Rental" and "Buyer or Renter" The District and COH also argue that Plaintiffs have failed to state a claim under the FHA because they are not "buyer[s] or renters" who were discriminated against in the "sale or rental" of a dwelling. Mot. at 11-12; COH Mot. at 10-13. Plaintiffs bring claims under two subsections of the Fair Housing 11 Act. 42 U.S.C. § 3604 (f) (1) and (2). Both sections COH argues that there is a distinction between a "dwelling unit" and a "dwelling," COH Reply at 5-6, but it cites no authority in support of that proposition. Moreover, HUD's regulation on "reasonable accommodations" specifically uses the term "dwelling unit." 24 C.F.R. § 100.204 ("It shall be unlawful for any person to refuse to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford a handicapped person equal opportunity to use and enjoy a dwelling unit, including public and common use areas."). -34- require that the discrimination occur in connection with the "sale or rental of a dwelling." Some courts have noted the difficulties of establishing a violation shelters. of section See Boykin, 3604(f) 895 F. in Supp. the context 2d at 210 of homeless (expressing doubt that FHA claim was cognizable given that former residents of a homeless shelter were neither buyers nor renters)i Johnson, 786 F. Supp. at 4 ("Plaintiffs, and the other inhabitants of the two shelters, are neither [buyers nor renters]. Such accommodations as they have had at the shelters in the past have been provided gratis by the District.") Living Program, Inc., No. (E.D.N.Y. Mar. 26, 2014) buyers in supervised their see also Forziano v. Indep. Grp. Home i 13-0370, as at *8 n.5 ("Since [plaintiffs] are not renters or respective housing 2014 WL 1277912, group part of homes, their but Medicaid rather receive services, they cannot state a claim for relief under the FHA."). However, argument none that of those courts federally-funded addressed shelters fall Plaintiffs' under the definition of the term "to rent" in the FHA. The FHA defines "to rent" as "to lease, for a the to sublease, to let and otherwise to grant consideration the right to occupy premises not owned by occupant." Defendants 42 receive U.S.C. § federal 3602(e). funds, -35- Plaintiffs and argue allege that that this constitutes "considerationn right to occupy rooms for giving homeless individuals the in homeless shelters. Opp'n at 23; Statement of Interest at 25-26. A handful of courts have considered this argument and found it persuasive. See Woods, 884 F. Supp. at 1175 (holding that the receipt of federal funds in return for providing shelter for the homeless was sufficient to establish that defendants "rent[ed]n the shelter); Anonymous v. No. 96-9198, Goddard Riverside Cmty. 1997 WL 475165, at *3 n.4 Ctr., Inc., (S.D.N.Y. July 18, 1997) (assuming federal funds constitute consideration for housing for purposes of resolving motion to dismiss) ; Ins. Co., 75 F. Supp. 2d 1, contention that section 3604 (f) (2) 7 cf. (D.D.C. Wai v. Allstate (rejecting 1999) "only applies to landlords or providers of housingn). Defendants argue that this Court should instead follow the district court in Jenkins, that a "far more plausible reading of the statute would limit the word 'rent' right to to consideration paid by the person who has the occupy the dwelling.n specifically noted reaching question of under 643 F. Supp. 2d at 519, which stated the section that 3604 (f). the district whethern 391 However, Fed. the App'x the court Second had plaintiff 81, 83 "erred was (2d Circuit a Cir. in renter 2010) (upholding district court's conclusion that plaintiff had failed -36- to state an FHA claim on other grounds) . Thus, the district court's decision in Johnson has no precedential value on this issue. Moreover, the Court finds that this case is more similar to Defiore, "[w]hat 2013 WL qualifies 7157990, as in which consideration the court under observed the FHA that, has been examined by a limited number of courts and this Court finds that resolution of the issue will receives consideration for a turn on whether [the shelter] resident's stay -- whether it be from federal or other funding directed to subsidizing the costs of providing housing residents provide to some the homeless form of or whether consideration for shelter their stay." Id. at *4. In sum, Plaintiffs have alleged that the District and COH receive federal with programs funds in order to provide homeless individuals and certain premises. services, including ~~ 8, Compl. 11. therefrom, the right to These allegations "all 21., 525 inferences" F.3d at 17 (internal quotations and citations omitted), U.S.C. § direction 3602(e), to "to rent" set out AF and reasonable the broad definition of Aktieselskabet occupy satisfy in the statute, 42 particularly in light of the Supreme Court's give the statute Trafficante, 409 U.S. at 209, 212. -37- "generous construction." This reading of the definition of "rent" makes sense in the context of subsection "discriminate against privileges of services U.S.C. or [] which any person rental of a facilities 3604 (f) (2). § (f) (2), in in makes the dwelling, to conditions, terms, unlawful or or in the provision of connection Plaintiffs it with have such alleged dwelling." that they 42 were discriminated against in the provision of services or facilities that appropriately Plaintiffs have accommodated sufficiently A. H. Is stated a under Thus, handicap. claim subsection 3604 (f) (2). A harder question term "rent" can still is whether save a broad construction of Plaintiffs' claim under the subsection 3604(f) (1). That provision makes it unlawful to "discriminate in the sale or rental, dwelling u.s.c. § to any or to otherwise make unavailable or deny, buyer or renter because of a handicap." a 42 3604 (f) (1). The primary problem is that the discrimination in the sale or rental renter." rent, to under Id. subsection Even under (f) (1) Plaintiffs' must be to "any construction of buyer the or term the "renters" are the federal agencies that provide funds Defendants, subsection not (f) (1) the Plaintiffs. seems to limit -38- The the statutory scope language of of unlawful discrimination to the entity buying or renting the dwelling in question. The United States argues that "courts have applied the FHA to encompass a wide variety of conduct that does not involve a refusal to sell or rent housing to owners or tenants." Statement of Interest at 24 & 24 n. 16. interpreted the phrase "otherwise make unavailable or deny" expand the scope of the FHA. District have similarly broad range of buy or rent a Ctr. v. dwelling. 2010) program for inhabiting that section actions & Urban Dev., Cmty. their recovery homes); Coal. Nat'l v. 2008 WL 977351, at *1-*3 However, otherwise because these of make of the 723 F. a opportunity to Fair Hous. Supp. 2d 14, Action 22-23 Cmty. Reinvestment 573 F. from homeowners prevented Supp. Coal. 2d 70, v. 76-77 (permitting claim against mortgage lenders); Nat'l Reinvestment subsection affect reaches (permitting plaintiffs to pursue claim that grant disaster 2008) 3604 (a) Greater New Orleans Accredited Home Lenders Holding Co., (D.D.C. to The Court notes that cases in this found actors whose Dep't of Hous. (D.D.C. It cites several cases that have Fin., Inc., No. 07-0861, (D.D.C. Mar. 31, 2008). cases section were 3604, unavailable race, Novastar color, brought which or deny[] religion, -39- makes a under it dwelling sex, a different unlawful to familial "[t]o any person status, or national origin." id. 42 U.S.C. 3604 (f) (1) § unavailable or (making deny[] (emphasis added). Co., 978 3604 F.2d See, 287, "applies a to cases because do not "otherwise of provide make 3604 (f) (1) dwelling "to to any N.A.A.C.P. v. (7th Cir. that the (emphasis added); unlawful 1992) discriminatory discriminatory pricing, housing it e.g., 301 3604 (a) § otherwise buyer Am. of of support unavailable the for or that section Thus, proposition language deny" Ins. and ownership applicant"). the renter") insurance, effectively preclude race or make Family Mut. (holding denials compare these that in of the section means that Plaintiffs do not have to establish that they were a "buyer or renter.,, Even in light of the Court,s obligation to construe the FHA as broadly restricts as the possible, class section 3604(f) (1) to a clear people of the who language can bring "buyer or renter," or, of a the statute claim under at its broadest, individuals who were otherwise denied the opportunity to become a buyer Hunters conclude that or a fall that renter. There into either the Hunters is no category. have such allegation Therefore, failed to § 3604 (f) (1). -40- Court sufficiently the District or COH discriminated against or renters" under 42 U.S.C. the that them as the must allege "buyers 3. Summary Plaintiffs have sufficiently alleged that the homeless shelters at issue in this case should be considered "dwellings" under the FHA. Defendants Plaintiffs have also received some sufficiently alleged that consideration permitting them to reside in such dwellings, proceed § with 3604 (f) (2). their claim However, of for exchange in such that they can discrimination under 42 U.S.C. Plaintiffs have not sufficiently alleged that they are "buyer[s]" or "renter[s]" such that they may bring a claim under 42 U.S.C. 3604 (f) (1). § C. Count IV: Plaintiffs Have Sufficiently Alleged Claims Under the District of Columbia Human Rights Act The Hunters provisions of ("DCHRA"), D.C. Columbia Court remedial civil construed." 874, 887 See argue the §§ Lively v. of has have Columbia 2-1401.01 Appeals rights (D.C. 2003) Defendants District Code of that et that statute Flexible that several Human Rights Act The District of seq. noted violated the must DCHRA be "is a generously Packaging Ass'n, (quoting Executive Sandwich Shoppe, 830 A.2d Inc. v. Carr Realty Corp., 749 A.2d 724, 731 (D.C. 2000)). The District and COH challenge Plaintiffs' six DCHRA claims as deficient for different reasons. The Court shall address each claim in turn. -41- 1. First, under Plaintiffs Have Sufficiently Stated a Claim Under D.C. Code § 2-1402.21(d) (2), But Not § 21402.21 (d) (1) the District and COH argue that Plaintiffs' section 2-1402.21(d) of that Plaintiffs' FHA reasons the Plaintiffs are neither "buyer [s] shelters at issue are not DCHRA claims fail fail; "dwellings. 11 the same namely, nor "renter [s] 11 for claims See Mot. that and that the 11 at 16-17; COH Mot. at 15-16. Defendants are correct that section 2-1402.21(d) makes discrimination associated with the sale or rental of a dwelling unlawful the § in language that parallels the analogous provision of FHA. Compare 3604 (f) . D.C. Code 2-1402.21(d) § "District of Columbia courts 'have generally looked [for guidance] courts' v. arising under federal Vital (quoting 1301-02 Signs, Inc., Benefits (D.C. 116 Comm'n 1994)); see civil F.3d Corp. v. also (D.D.C. 1996) the federal and have 42 U.S.C. interpreting the DCHRA to cases from the federal rights statutes. 588, 591 P.C., Whitbeck 11 (D.C. Cir. 1997) 642 A.2d 1299, Klieforth, Paralyzed Ellerbe Becket Architects & Eng'rs, with Veterans 950 F. of Supp. Am. 393, v. 405 ("The D.C. courts have always looked to cases from courts followed, in interpreting the D.C. wherever applicable, -42- Human Rights Act, precedents from the federal courts' treatment of comparable civil rights statutes. 11 ) (citations omitted) . As discussed above, see supra Sec. III.B.1, Plaintiffs have sufficiently stated facts claim that the in their complaint to support shelters in question are their "dwellings. 11 In addition, although Plaintiffs have failed to sufficiently allege they are "buyer[s] or renter [s] to 11 satisfy section 2- 1402.21(d) (1) of the DCHRA, there is no such language in section 2-1402.21(d) (2) of the DCHRA. See supra Sec. III.B.2 difference because in language this section interpreted in Plaintiffs may discriminated a between provisions of the DCHRA parallel fashion, proceed on against them and the its in of the FHA) . FHA Court claim the the (discussing should concludes be that Defendants that "terms, Thus, conditions, or privileges of sale or rental of a dwelling or in the provision of services or facilities because of a disability, on its 11 in D.C. connection Code § with the 2-1402.21(d) (2), claim that Defendants discriminated against dwelling but not them under section 2-1402.21(d) (1). 2. In a failed to Plaintiffs Have Sufficiently Stated a Claim Under D.C. Code§ 2-1402.2l(d) (3) (D) footnote, assert the facts District argues sufficient -43- to that Plaintiffs support their have claims "regarding the accessibility of their units." This argument they were seems to be challenging discriminated against Mot. at 17 n.13. Plaintiffs' claim Code D.C. under that § 2- 1402.21 (d) (3) (D) . That section defines "unlawful discrimination" to include a contain and failure "[a] n to ensure that premises within a dwelling accessible route "usable kitchens into and through the dwelling," and bathrooms so that an individual ~~ wheelchair can maneuver about the space." Compl. see D.C. Code § 2-1402.21(d) (3) (D) (i), Plaintiffs claim that have alleged General the and 123(a), (b); (iv). sufficiently both D.C. in a facts to support a Girard Street Apartments did not include accessible routes into the building and/or their ~ units. See Compl. front door of D.C. 46 (alleging that A. H. General because ramp is and sidewalk is broken); Apartments was not could not get ~ 72 into "excessively steep" (ramp leading up to Girard Street accessible for A. H.); in Girard Street Apartments was broken) ; ~ 73 (wheelchair lift ~ 74 (no elevator ~ 75 Girard Street Apartments to get to third floor apartment); (hallways within accommodate that ~ 47 D.C. Girard wheelchair) . General (bathroom in did Street They not D.C. apartment have include General -44- also a were too narrow sufficiently usable unsuitable bathroom. for in to alleged See A.B.'s id. needs because she had to be supported by Hunter and he could not hold her and operate shower at same time) . Thus, Plaintiffs have alleged facts sufficient to proceed on their claims under sections 2-1402.21 (d) (3) (D) (i) and (iv) of the DCHRA. 3. Plaintiffs Have Sufficiently Stated a Claim Under D.C. Code§ 2-1402.3l(a) (1} a. Intentional Discrimination Plaintiffs allege that Defendants have violated section 21402.31(a) (1) of things, it "deny, that the is directly or enjoyment of advantages, accommodations" an which "unlawful indirectly, the and DCHRA, goods, discriminatory any person the services, accommodations because establishes, of a of among other practice" full to and equal facilities, privileges, any of place disability. D.C. Code public § 2- 1402.31 (a) (1) . In a footnote, DCHRA requires discrimination. a the District argues that this section of the plaintiff Mot. at 16 to plead n.12. It and is prove true that intentional the DCHRA includes language, which is not included in either Title III of the ADA or Title II of the Civil Rights Act, 12 requiring that the 12 Defendants discuss Title III of the ADA, 42 U.S.C. § 12181 et seq., which prohibits discrimination on the basis of disability in the "full and equal enjoyment" of "any place of public -45- discriminatory act be "wholly or partially for a discriminatory . disability." Mot. reason based on the actual or perceived . at 16 n.12. However, the parties have identified no case that discusses a plaintiff's partially burden for a accommodations to prove a discriminatory section of the defendant reason" DCHRA. Even acted under if "wholly the the or public burden for pleading intentional discrimination was the same in this context as it is in the FHA context, the Court has already concluded that Plaintiffs have met that burden at this stage. Sec. III.A.4. Therefore, the Court will allow See supra Plaintiffs to proceed on their claim against the District for discrimination in the provision of public accommodations under D.C. Code 2- § 1402.31(a) (1) at this time. b. COH argues "Place of Public Accommodation" that the Girard Street Apartments are not a "place of public accommodation" under the DCHRA. See COH Mot. at 16-17; COH Reply at 17. Specifically, it argues that the DCHRA's enumerated list of "places of public accommodation" does not accommodation." Mot. at 16 n .12 (discussing 42 U.S. C. § 12182 (a)). In addition, the Court notes that Title II of the Civil Rights Act, 42 U.S.C. § 2000a et seq., also outlaws discrimination in the provision of public accommodations. 42 U.S.C. § 2000a(a) -46- include a homeless shelter. (citing Id. Code D.C. 2- § 1401.02 (24)). Section 2-1401.02(24) of the DCHRA defines places of public accommodation as "all places included in the meaning of" a long list of terms. D.C. Code § 2-1401.02(24) Although COH is correct that homeless shelter is not one of the terms listed, a member of this court has already noted that the term "place of public accommodation" is defined "broadly" under the DCHRA and "would seem to include homeless shelters." Boykin, 895 F. Supp. 2d at 217 n.16. Moreover, the accommodation" under Disabilities Act, shelter U.S.C. as § parallel an Title 42 U.S. C. entity 12181 (7) (K). provision of III § 12181, considered a Given that D.C. does include public Supp. 2d District of "generally at 219 (citation Lively, omitted), 830 a homeless accommodation. 42 courts look for guidance Columbia's determination that construed," with Americans the to the parallel federal civil rights statutes, F. "public defining A.2d and see Boykin, in light of 895 the the DCHRA should be at 887, the Court concludes that the Girard Street Apartments should be considered a "place of public accommodation" under section 2-14 02. 31 (a) ( 1) of the DCHRA. -47- 4. Section things, District that Plaintiffs Have Sufficiently Stated a Claim Under D.C. Code § 2-1402.73 2-1402.73 of it "unlawful discriminatory practice for a is an government the agency provide any facility, DCHRA or establishes, office to or other refuse to service, program, or benefit" on the basis of an individual's disability. D.C. Code Defendants limit among argue that Plaintiffs § 2-1402.73. 13 have failed sufficient facts to support this claim. First, to the allege District argues that Plaintiffs have failed to sufficiently allege that any District service to agency or the office Hunters "limit [ed]" because no such or "refuse [d]" agency or any office "directly interacted" with Plaintiffs. Mot. at 17; Reply at 13. The text of the statute does not contain or suggest such a "direct interaction" requirement. D.C. Bd. of Adjustment, In George Washington Uni v. v. 831 A.2d 921 (D.C. 2003), the District of Columbia Court of Appeals discussed the provision and noted that it District "appears of to Columbia be directed government Plaintiffs have alleged that Human 13 Services ( "DHS") and at the programs." administration Id. at 941 of n.16. they relied on the Department of the Office of Shelter Monitoring Another member of this court has noted that, "[t] here is a dearth of case law respecting this provision, which became effective in 2002, and the [c]ourt has not located any decisions applying it." Boykin, 895 F. Supp. 2d at 218. -48- ("OSM") to ensure compliance discrimination provisions inventory information and and with to federal maintain relating ~~ those with disabilities. Compl. to and local records of their antishelter accessibility to 89-91. Construed in the light most favorably to Plaintiffs, as this Court must, Aktieselskabet AF 21., 525 omitted), F.3d these at 17 (internal allegations agencies refused to provide program, or benefit" disabled individual. quotations support a and citations that District "facility, service, claim an appropriate to the Hunters based on A.H.'s needs as a Therefore, the Court will not dismiss Plaintiffs' claim under this section of the DCHRA on this basis. Second, the District argues that homeless shelter services are not the type of at 17 n.14. a Name v. Society Without a "services" under the FHA, limited to broader facility, than service, compare 42 U.S. C. the Virginia, Name it cites only one case, 655 F. 3d construed the 42 U.S.C. § Mot. 3604 (b) 342 scope of and (4th Cir. the (f) (2), term to be "services generally provided by governmental units." Id. at 349-50. However, much covered by this provision. In support of its argument, A Society Without 2011). "services" provision of the the program, § 3604 (b) services relevant FHA section provisions, or benefit." D.C. of the DCHRA encompassing is "any Code § 2-1402.73; (making unlawful discrimination "in or facilities") ; -49- id. § 3 604 (f) (2) (same) . Thus, the Court is not persuaded that Society Without a Name provides an adequate basis to dismiss Plaintiffs' claim under this section of the DCHRA at this time. 5. Plaintiffs Have Sufficiently Stated a Claim Under D.C. Code § 2-1402.67 Section 2-1402.67 of the DCHRA states: All permits, licenses, franchises, benefits, exemptions, or advantages issued by or on behalf of the government of the District of Columbia, shall specifically require and be conditioned upon full compliance with the provisions of this chapter; and shall further specify that the failure or refusal to comply with any provision of this chapter shall be a proper basis for revocation of such permit, license, franchise, benefit, exemption, or advantage. D.C. Code § 2-1402.67. The District argues that Plaintiffs' claim under this section fails for two reasons. 14 First, the District argues that because the Hunters have failed to identify any particular document in which the District 14 The District notes for the first time in its reply that section 2-14 02. 67 only references "permits, licenses, franchises, benefits, exemptions, or advantages," but does not specify "contracts." Reply at 13. Thus, it argues that the Hunters' allegations regarding contracts are inherently insufficient. The District does not explain why the contracts at issue here should not be considered "permits, licenses, franchises, benefits, exemptions, or advantages." D.C. Code § 2-1402.67 (emphasis added) . Moreover, given the fact that the District raised this argument for the first time in its reply brief, the Court will not address it here. See supra n.7; see also St. Paul Mercury Ins. Co. v. Capitol Sprinkler Inspection, Inc., 657 F. Supp. 2d 243, 247 n.1 (D.D.C. 2009) (declining to address argument that was raised for the first time in reply brief) . -50- did not condition compliance with the DCHRA dismissed. District had ~ Compl. against Mot. at 18. contracts However with the 1 the their claim must be 1 Hunters operators allege of the that the shelters. 9-10. They also allege that the operators discriminated them on the basis of disability/ anti-discrimination Plaintiffs argue provisions that of in violation of DCHRA. the these allegations that ~ Id. the the 122. shelters did not comply with the DCHRA allow the Court to reasonably infer that the District did not condition its contracts with the shelter operators on compliance with the DCHRA. Opp n at 29. 1 The Hunters read together 1 are correct that when these allegations are it is reasonable to infer that the District did not condition the contracts on compliance with the DCHRA. 15 Thus/ the Court will not dismiss Plaintiffs/ claim under this subsection of the DCHRA on that basis. Second 1 the District argues that even if the Hunters have sufficiently alleged a violation of section 2-1402.67 must be dismissed because the District has 15 1 the claim sovereign immunity Moreover 1 the Court has already ruled that the contracts between the District and the other Defendants will be reviewed for the purpose of determining the relationship between the Defendants. See supra Sec. III.A.4.b. Whether those contracts contain a provision requiring compliance with the DCHRA can be resolved definitively once those contracts have been exchanged in discovery. -51- regarding "[e] nforcement of the DCHRA' s compliance requirement for permits and licenses." Mot. at 19. The doctrine of sovereign immunity protects the District of Columbia from suit for its discretionary activities. Dist. of Columbia, v. Dist. of "Generally, 669 A.2d 685, Columbia, 602 discretionary 690 (D.C. 1995) A.3d acts 1123, (citing Powell 1126 involve Nealon v. (D.C. 1992)). formulation the of policy, while ministerial acts involve the execution of policy." Nealon, 669 A.2d at 690. Although the District describes the statute as "refer[ring] to enforcement decisions," Reply at 14, the statute does not support that interpretation. states that licenses, District franchises, compliance "shall" the with creates the a "shall" benefits, statute. mandatory Code § obligation, of the Section 2-14 02. 67 condition exemptions, D.C. language its or advantages" 2-1402.67. not "permits, a The on word discretionary ability to enforce. See Kakeh v. United Planning Org., Inc., 655 F. Supp. when a 2d 107, 123 statute uses (D.D.C. the 2009) term ("It 'shall,' it is well-settled that creates a mandatory duty."). The District fails to provide any convincing reason why the use of the word "shall" in this statute suggests anything other than a mandatory duty. -52- The crux of the Hunters' claim is not that the District failed to enforce a provision it had in any particular contract that required compliance with the DCHRA, but, failed to include such a provision at all. instead, that it Because the statute creates a mandatory duty to include such provisions, it should be considered a ministerial duty and outside the scope of the District's sovereign immunity. Nealon, 669 A. 2d at 690 ("If the act is committed in the exercise of a ministerial function, the District is not immune."). In District sum, Plaintiffs failed compliance to with have sufficiently comply with the franchises, benefits, Plaintiffs' claim DCHRA in this that its mandatory duty to issuing exemptions, under alleged or and the DCHRA may advantages," of the require licenses, "permits, subsection the proceed. 6. Summary Plaintiffs DCHRA. allege Although 1402.21 (d) (1), they claims may under not six proceed subsections under section they have sufficiently pleaded facts their other five claims. -53- of the § 2- to support D. Count V: Plaintiffs Have Not Sufficiently Alleged Claim Under the Homeless Services Reform Act Defendants argue that Plaintiffs have failed claim under the Homeless Services Reform Act § 4-751.01 et. seq. The HSRA implements a to a state a ("HSRA 11 ) , D.C. Code "continuum of care, 11 defined as "the system of services for individuals and families who are homeless designed to or at serve need. 11 all providers Id. § imminent clients 4-751.01(8). of risk of becoming homeless based on their individual level and of The statute establishes standards for services to the homeless. Id. 4-754.21 § ("Section 21 11 ) . The HSRA also requires that the District provide "shelter in additional severe standards shelter. id. § 1. The have a weather, 11 id. required 4-754.22 for private first right of argument action shall construed to to create is under of the HSRA states that implied) providers of and specifies severe weather Columbia Court of Appeals Has Private Rights of Action Under 755.01(a) be 4-754.11(5), ("Section 22 11 ) . The District of Strictly Limited the HSRA District's § that the HSRA. do Section not 4- "no provision of this chapter an entitlement any services Plaintiffs within the (either direct Continuum of or Care, other than shelter in severe weather conditions as authorized by § 4-754.11(5) . 11 Thus, the District -54- insists that Plaintiffs' claims under the HSRA, other than a claim based on a failure to provide shelter during severe weather, are precluded. The District of Columbia Court addressed this section of the HSRA. Columbia, 10 A.3d 1141 (D.C. of Appeals has directly In Baltimore v. District of 2011), former residents of a homeless shelter brought suit under the HSRA arguing that the District had failed to conform to the standards identified in the statute as part of the "Continuum of Care." Id. at 1146-47. The Court acknowledged that the statute created "standards" in Section 21, but concluded that the legislature did not intend to "create a direct or implied entitlement to any other particular service" than the right to shelter in severe weather. Id. at 1143-44. Consequently, the District is correct that there is no private right of action available to Plaintiffs other than an action to enforce the right to shelter in severe weather. The Hunters attempt to distinguish Baltimore on the ground that they are not seeking any particular service, but instead are seeking to enforce "non-service rights." Opp'n at 29-30 & 30 n.4. This distinction between service and non-service rights appears nowhere in the statute, which lists all of the standards in a single section without distinguishing between services and non-services. "non-service Moreover, rights," it such is unclear as -55- the how right one would to be protect free from discrimination, without putting them in the context of provision of services. Indeed, Section 4-754.21(10) does precisely that by requiring that shelters discrimination II "[p]rovide D.C. Code free services § 4-754.21(10) from (emphasis added). The District of Columbia Court of Appeals has interpreted the scope of private rights of action under the HSRA narrowly, and this Court is bound by that determination. See In re Sealed Case (Medical Records), 381 F.3d 1205, 1211 n.5 (noting that the interpretation of Therefore, related District District Plaintiffs' to the right of of Columbia Columbia Court law is claims under the HSRA, to shelter in (D.C. Cir. 2004) severe of Appeal's authoritative). other than those weather, must be dismissed. 16 2. Plaintiffs Have Pleaded a Not Sufficiently Violation of the Right to Shelter in Severe Weather The Hunters allege that the District failed to place them in a shelter that reasonably accommodated A. H. 's during severe weather conditions. Code § 4-754.11(5); see also id. ~~ 16 Compl. ~ 38, 138 140 (h) disabilities (citing D.C. (alleging that, when Because the Court dismisses these claims, it need not address the District's argument that these claims should also be dismissed because it is not a "provider" under the HSRA. Mot. at 21-23. -56- the Hunters requested degrees Fahrenheit); weather conditions" shelter, D.C. Code temperatures 4-751.01(35) § were below (defining 32 "severe to include when the temperature falls below 32 degrees Fahrenheit) . The shelter Hunters during do not severe dispute weather, that but they they were argue provided with that they entitled to shelter that complied with the standards set were forth in Section 21 and Section 22. Opp'n at 30. The District responds that its obligation to provide shelter in severe weather does not extend to the provisions of the Continuum of Care in Section 21. Mot. at 23 (citing Baltimore, 10 A.3d at 1150-51). Section 21 states that providers shall . disability," D.C. free from discrimination on the basis of . Code Id. 4-754-21(10), § and "[provide 4-754-21(11). However, § "[p] rovide services reasonable modifications," Section 21 is the same section that the District of Columbia Court of Appeals analyzed in Baltimore and found rights at to be a list of standards, rather to which an individual was entitled. 1151. Citing both Section 21 court determined that the word than list Baltimore, and Section 22, "standards" a of 10 A.3d the Baltimore suggested "norms or what is acceptable or desirable, not a statutory entitlement." The Baltimore entitlement to court concluded that there was a "shelter in severe or frigid weather," -57- statutory id., but it did not identify the contours of that right because it found that the plaintiffs in that case had failed to allege a denial of shelter during severe weather conditions. the declarations did not reveal Id. (noting that "any specific complaint about the denial of other shelter during severe weather conditions"). Thus, despite the fact that plaintiffs in that case argued they were entitled to a particular shelter during severe weather conditions, the court found that the fact that they had received some shelter was dispositive of their claim. Similarly, Plaintiffs in this case have failed to allege that they were not provided with shelter during severe weather. Therefore, although there is a private right of action for individuals to enforce their right to shelter in severe weather, Plaintiffs have failed to sufficiently allege a denial of that right. Plaintiffs insist that mere shelter is insufficient - there must be some substantive content to the right to ensure that the shelter is Opp'n at "appropriate" or the right would be 30-31 (citing D.C. Code Plaintiffs are correct that there content the right, to it does not § "meaningless." 4-753.01(c) (1)). must be follow some that Although substantive such a right encompasses all of the "standards" set out in Section 21 of the HSRA. As the District correctly points out, this would mean that -58- Plaintiffs would have a statutory entitlement to all services in the Continuum of Care for emergency shelters, but no statutory entitlement to services whatsoever in regular shelters. Given the conclude that, clear language of Baltimore, as a legal matter, this Court must individuals are not entitled to all of the provisions listed in Section 21 as part of their right to shelter in severe weather. Because the District of Columbia Court of Appeals has held that the only private right of action under the HSRA is a right to severe weather shelter, and Plaintiffs have failed to allege a violation of that right, their claim must be dismissed. 3. In the Exhaustion of Administrative Remedies alternative, COH argues that Plaintiffs' claims under the HSRA must be dismissed for failure to exhaust their administrative remedies. It argues that Plaintiffs failed to "exercise their appeal rights under the HSRA relative to their request for comply with respite and, hence, Plaintiffs mechanism the care," for relief provided "failed for by to the HSRA [.]" COH Mot. at 18-19. The statutory language of the HSRA does client to appeal a provider's decision. D.C. not Code § require a 4-754.41(b) (stating that "[a] client or client representative may request a fair hearing") (emphasis added) . -59- Rather, the HSRA imposes a requirement on the Office of Administrative stating that OAH "shall grant a Hearings ( "OAH") , fair hearing to any client or client representative who wishes to appeal a decision who requests days of Code § such a hearing, orally or receiving written notice of 4-754.41 (a) conclude that (emphasis the added). Plaintiffs' HSRA in writing, adverse Thus, claims . and within action." the Court should be 90 D.C. will not dismissed because they failed to exhaust their administrative remedies. 4. Summary Plaintiffs support its have claim failed that to its sufficiently right to allege shelter facts during to severe weather was violated, the only claim under the HSRA for which it has a private right of action. E. Count VI: Plaintiffs Have Not Sufficiently Alleged a Negligence Claim Against the District of Columbia 17 The elements of a cause of action for negligence are: "a duty of care owed by the defendant to the plaintiff, a breach of that duty by the defendant, plaintiff, and damage to the interests of the proximately caused by the breach." Woods v. Dist. of Columbia, 63 A.3d 551, 553 (D.C. 2013). 17 COH does not argue that the negligence claims against it should be dismissed. See Answer to Counts VI and VII [Dkt. No. 78] . -60- In Count negligently Settlement Columbia, fail breached and a as a Plaintiffs VI, th e duties HSRA . suit against matter relationship" of (quoting Warren, doctrine, a owed a for absent the 576 A.2d 718, person 719 seeking duty to upon 144. 18 a the it In "special District negligence must special fl 11 that the by District the DoJ D1' str1' ct of the District alleging negligence will 444 A.2d at 3, Columbia, liable imposed Comp l . law between allege 4); (D.C. to or 1990) Id. Dist. of ("Under the public duty the District and prove injured "special plaintiff. 19 the see also Klahr v. hold allege the and duty" that party, of Columbia the District greater than or different from any duty which it owed to the general public."). "The threshold for establishing a special very high." Jefferies v. Dist. of Columbia, 33 18 (D.D.C. 2013) (internal quotations and relationship 917 F. Supp. citation is 2d 10, omitted). Plaintiffs also allege that the District is vicariously liable for the negligence of its contractors and agents in breaching contractual duties. Id. ~ 147. However, this claim cannot survive because "the mere negligent breach of a contract is not enough to sustain an action sounding in tort." Curry v. Bank of Am. Home Loans Servicing, 802 F. Supp. 2d 105, 109 (D.D.C. 2011) (quoting Towers Tenant Ass'n, Inc. v. Towers Ltd. Partnership, 563 F. Supp. 566, 570 (D.D.C. 1983)). The District cannot therefore be held vicariously liable for its contractors' negligent breach of contract. 19 "The terms 'special relationship' and 'special duty' may be used interchangeably," because "'a special relationship imposes a special legal duty."' Powell, 602 A.2d at 1127 n.4 (quoting Warren v. Dist. of Columbia, 444 A.2d 1, 3 (D.C. 1981) (en bane)) . -61- "If, based on reading the Complaint, applies, the Court under 12 (b) (6) may appropriately dismiss for failing to state a claim. Supp. 2d at 32 (D.D.C. 2013) There Jefferies, are prove two exceptions to the 917 F. public 603-04 duty doctrine. two (D.C. 2008). First, a plaintiff can allege things: "((1) a direct or continuing [the plaintiff] and (2) a justifiable reliance on the part of 720). claims (citing Warren, 444 A.2d at 1). between Jefferies, tort Jefferies, 11 the 917 F. Supp. 2d at 33; Snowder v. Dist. of Columbia, 949 A.2d 590, and the public duty doctrine 917 Second, F. Supp. and a governmental agency or official, 2d at 33 regulation that prescribes protection of particular public as a whole.' 11 'mandatory class Jefferies, [the plaintiff] . (quoting Klahr, a plaintiff can identify a a contact of 917 F. 11 576 A.2d at "specific statute or acts clearly for the persons rather than the Supp. 2d at 34 Turner v. Dist. of Columbia, 532 A.2d 662, 667 (quoting (D.C. 1987)). The Court will refer to this as the second exception to the public duty doctrine. Thus, for Plaintiffs' negligence claim to survive, they must sufficiently allege facts to support a conclusion that the claim falls under one of the two exceptions to the public duty doctrine. -62- 1. First Exception: Contact and Justifiable Reliance Plaintiffs argue that they have alleged facts sufficient to support the first exception to the public duty doctrine: namely, that they contact" have between sufficiently themselves alleged and the "direct or District of continuing Columbia and "justifiable reliance." Jefferies, 917 F. Supp. 2d at 33. To sufficiently allege "contact," Plaintiffs must allege a "direct transaction with the party injured or an arms-length relationship in which the city's agent is dealing directly, some form, with the person injured." Id. (citing Powell, A.2d at 1130). Plaintiffs argue that "the District, in 602 through its agent contractors, maintained direct and continuing contact with the Hunter family from the moment Mr. Hunter sought shelter." Opp'n at 33. Mr. Hunter's first application for housing, as well as his multiple requests for accommodations, "direct and personal transaction[s]" under District of Columbia precedent. that all appear to be satisfy Powell, this prong 602 A. 2d at 1131 (finding that application and payment of fee to Bureau of Motor Vehicle ~ Services Hunter "contact" Compl. shelter at the District's central intake office); ~ 41 (alleging certain Hunter) ; by Center -63- placement also homeless made for see a statements applied prong) ; in 37 (alleging satisfied staff to ~ 78 (alleging conversation between Hunter and program director at Girard Street Apartments) . The District cites Powell for the proposition that "even a series of contacts over a period of time is not enough absent some showing that the agency assumed a greater duty to that person than the duty owed to the public at large." Reply at 16 n.4 (citing Powell, Columbia Court showing a of Appeals "greater satisfied Powell, 602 A.2d at 1130). However, the District of by also duty" has clarified than requiring one proof 602 A.2d at 1131; Snowder, that owed of the burden of to the public is justifiable reliance. 949 A.2d at 604 n.12 (noting that the two-part inquiry "takes this greater duty factor into account have by requiring justifiable sufficiently alleged reliance") . "contact" with the Thus, Plaintiffs District through its agents. 20 To show "justifiable reliance," Plaintiffs must allege that the District has "specifically undertaken to protect a particular individual and the individual has specifically relied upon the 13 06, 1315 reliance," 20 undertaking." (D.C. Powell, Morgan v. 1983) . It Dist. requires of Columbia, "particular 602 A.2d at 1131 n.11, or 468 A. 2d special on some "affirmative As discussed above, see supra Sec. III.A.4.b, the Hunters have sufficiently alleged that the District's contractors are its "agents" to proceed on that theory at this time. -64- act[]" that condition," uactually Woods, and directly 63 A.3d at argue that they worsened 554 the (internal plaintiff's quotations and relied the citation omitted) . Plaintiffs justifiably on District's uaffirmative obligation" as set forth in Paragraph 24 of its Settlement Agreement with the DoJ. Opp'n at 34. However, the Settlement Agreement specifically states that it is uenforceable only by the parties" and that uno person or entity may assert any claim or right as a beneficiary or protected ~ class" under the Agreement. Settlement Agreement 79-1]. Whatever the scope of the District's 37 [Dkt. No. duties under the Settlement Agreement, it is clear that signing the Agreement was not an uaffirmative act[]" that uactually and directly worsened the plaintiff's condition." Woods, 63 A.3d at 554 (internal their Complaint quotations and citation omitted) . Plaintiffs identify no other portion of that alleges an uaffirmatively negligent act" as compared to a ufailure Plaintiffs reliance, to act." have and, Snowder, failed thus, to 949 A. 2d sufficiently at 604. plead Therefore, justifiable have not satisfied the first exception to the public duty doctrine. See Woods, 63 A.3d at 554 (noting that District of Columbia Court of Appeals uhas adhered to a strict interpretation of the special relationship test, -65- including the justifiable reliance prong") (quoting Taylor Dist. v. of Columbia, 776 A.2d 1208, 1218 (D.C. 2001)). 2. In Second Exception: Statute the satisfied because alternative, the the second HSRA Plaintiffs exception is a to specific argue the that public statute they duty that have doctrine, "prescribes mandatory acts clearly for the protection of a particular class of persons rather than the public as a whole." Jefferies, 917 F. Supp. ~~ 2d at 144-46 34 (quoting Turner, (alleging that HSRA 532 A. 2d at imposes 667); particular see Compl. duties upon Defendants) . The District of Columbia Court of Appeals stated in Turner that "if a state agency is required by statute or regulation to take a particular action for the benefit for a particular class and fails to do so, or negligently does so, and the plaintiffs justifiably rely to their detriment on the agency's duty to act, a cause of action in negligence will lie against the state or its agency." Turner, 532 A.2d at 672. In concluded Turner, that certain public the the District of Child Abuse officials Columbia Prevention specific duties Court Act and of Appeals imposes "upon responsibilities which are intended to protect a narrowly defined and otherwise helpless class of persons: abused and neglected children." -66- Id. at 668. The Child Abuse Prevention Act officials act in certain ways to protect when officials breach those duties, class suffers in a specifies that District a special class, and "that statutorily protected way uniquely different from the public at large." Id. Plaintiffs argue that the HSRA imposes responsibilities on the District in order to protect individuals seeking shelter." Opp'n at 34 754.52 (a) (3), (b)- (d)). However, certain duties and "disabled (citing D.C. Code § 4- the District of Columbia Court of Appeals has concluded that the HSRA does not create legally enforceable obligations, but merely creates a list of standards. See supra Therefore, Sec. III.D.l. (discussing Baltimore, 10 A.3d 1141). the HSRA is not a statute that "prescribes mandatory acts clearly for the protection of a particular class of persons rather than the public as a whole." at 34 Jefferies, 917 F. Supp. 2d (quoting Turner, 532 A.2d at 667). The one mandatory act that is prescribed by the HSRA is to provide shelter Plaintiffs shelter in in failed severe severe to fail [ed] action See allege that they weather. Id. Thus, sufficiently alleged that particular weather. for the were, to do so [.]" Turner, for a III.D.2. fact, particular denied have required to 532 A. 2d at 672 -67- in Sec. Plaintiffs the District was benefit supra not "take a class and (emphasis added) . Consequently, even this portion of the HSRA cannot provide the basis for the second exception to the public duty doctrine. 3. SUilllnary Plaintiffs support have failed its negligence to sufficiently claim against allege the District, facts to because it has not demonstrated that either of the exceptions to the public duty doctrine apply. Count VII: Negligence Colwnbia F. Plaintiffs Have Not Sufficiently Alleged a Per Se Claim Against the District of Plaintiffs also allege that Defendants "were negligent per se in failing to meet their duties and obligations under the ADA, FHA, Rehabilitation Act, DCHRA, and HSRA." Compl. However, separate negligence legal claim per se rather, is it not in permits and a of ~ 150. itself plaintiff a under "certain circumstances and under specified conditions," to "rely on a statute or regulation as proof of the applicable standard of care." 1996) McNeil Pharm. (citation omitted) v. Hawkins, 686 A. 2d 567, 578 If the plaintiff can prove that (D.C. the defendant violated such a statute or regulation, it "renders the defendant negligent violation was the as a matter of law proximate cause of so long as the injuries, and the the alleged injuries were of the type which the statute was designed to prevent." Id. (internal quotations and citation omitted). -68- "The decision to adopt from a statute a standard of care to be applied in determining common law negligence" decision for the court to make. Id. at 579 is a judicial (internal quotations and citation omitted) . The Court must decide whether the statute or regulation protect "promote [s] persons public safety and [was] in the plaintiff's position or type of accident that occurred." Id. enacted to prevent to the (internal quotation marks "gravamen of and citation omitted) . The claims are District is argues that discrimination," the and that the intended to combat discrimination, statutes not Plaintiffs' they rely on to prevent physical harm. Mot. at 26-27. Plaintiffs identify no precedent supporting their ADA, argument the FHA, that anti-discrimination the DCHRA, statutes such and the Rehabilitation Act as the should be considered statutes that "promote public safety." Although neither party identifies cases evaluating whether negligence per se should be applied to the FHA, the Rehabilitation instructive. public 4908, Multiple safety doctrine. See, 2009 Act, WL courts have statute e.g., cases for purposes McCree v. 166660, at Se. *12 the addressing found that of the the DCHRA, ADA or are the ADA is not a negligence Pa. Transp. (E.D. Pa. Auth., Jan. 22, per No. se 07- 2009) (" [V] iolation of an ADA regulation may not be used as evidence -69- of negligence per se in a one."); White v. NCL Am., at *5 (S.D. designed injuries, to Fla. Mar. protect Plaintiff negligence."); Inc., 8, those is James v. personal No. 2006) with unable to injury action 05-22030, ("Because a the ADA from claim Peter Pan Transit Mgmt., for Inc., 747, 1999 WL 735173, at *9 (E.D.N.C. Jan. 20, 1999) that 'provide ADA was "enacted to a clear this 2006 WL 1042548, disabilities state like and was not personal per No. se 97- (concluding comprehensive national mandate for the elimination of discrimination against individuals with disabilities,' and, thus, it was "unlikely that the North Carolina courts would find that the ADA is a safety statute or that violation of the ADA constitutes negligence per se") (quoting 42 U.S.C. § 12101(b)); Dalgliesh v. Theatre Mgmt. Grp., Inc., No. 96- 3985, 1999 WL 638127, at *1 (D.C. Super. May 28, 1999) ("Obviously, it would have been error if the court had instructed the jury that evidence of the ADA and the applicable C. F. R. was violations constituted negligence per se, promulgated to prevent discrimination, since the Act not physical injury.") . Plaintiffs argue that accommodating the needs of disabled individuals does have a "public safety" the court observed in White, rationale. However, as "[w]hile protection from injury for the disabled is no doubt a fortunate by-product of the ADA, -70- it is clear that the statute was not designed with that purpose in mind[.]" White, 2006 WL 1042548, at concludes that the same Act, FHA, and the DCHRA from the *5. The Court agrees and rationale prevents serving the as Rehabilitation the basis of a negligence per se claim as well. Plaintiffs argue that the HSRA subsection mandating that the District provide shelter during severe weather is a "public safety" statute. They may be correct, but, as discussed above, see supra Sec. III.D.2, Plaintiffs failed to plead a claim under that subsection. Moreover, in order to adopt a particular . prevent standard of care, the statute must be "enacted to the type of accident that occurred[.]" Sibert-Dean v. Washington Metro. Area Transit Auth., 721 F.3d 699, 702-03 (D.C. Cir. 2013) (quoting Joy v. Bell Helicopter Textron, Inc., 999 F.2d 549, 557 (D.C. Cir. directed weather. the at The protecting relevant subsection individuals from of the exposure to HSRA is severe There is no allegation that the injuries suffered by Hunters weather. 1993)). occurred Therefore, public safety," because they were exposed to severe even if that section of the HSRA "promotes it still does not support a negligence per se claim in this case. -71- In sum, Plaintiffs have failed to identify a statute that supports its negligence per se claim against the District, and this claim must be dismissed. IV. CONCLUSION For the foregoing reasons, shall granted be portion of the Count portion 1402.21 (d) ( 1) , in II of and part as brought Count denied the District's Motion to Dismiss IV to Counts under V, VI, and VII, the 3604 (f) (1), and 42 U.S.C. brought under D.C. Code to other arguments; in part as § all § 2- Defendant COR's Motion to Dismiss shall be granted in part as to Count V, the 3604(f) (1), § portion of Count II brought under 42 U.S.C. and the portion of Count IV brought under D.C. Code 2-1402.21(d) (1), and denied in part as to all other arguments. Gff:iaer I~ August 18, 2014 United States District Judge Copies to: attorneys on record via ECF -72- §

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