Filed: Mar. 05, 2007
Latest Update: Feb. 22, 2020
Summary: Orlando Colon-Jimenez and Lydia E. Jimenez on brief pro se.the housing.1, Appellants have not appealed the dismissal without, prejudice of their supplemental claims based on Articles 1802 and, 1803 of the Civil Code of Puerto Rico, 31 L.P.R.A.accommodation requested is linked to some disability.
Not for Publication in West's Federal Reporter.
United States Court of Appeals
For the First Circuit
No. 06-1871
ORLANDO COLON-JIMENEZ ET AL.,
Plaintiffs, Appellants,
v.
GR MANAGEMENT CORP. ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Salvador E. Casellas, Senior U.S. District Judge]
Before
Boudin, Chief Judge,
Selya and Stahl, Senior Circuit Judges.
Orlando Colon-Jimenez and Lydia E. Jimenez on brief pro se.
Ramón E. Dávila-Carlos on brief for appellees.
March 5, 2007
Per Curiam. Pro se appellants Orlando Colon-Jimenez and
his mother, Lydia E. Jimenez, timely appeal from the dismissal of
their discrimination complaint against the company and individuals
who manage the Proyecto Residencial Las Flores housing project in
Aibonito, Puerto Rico, where they have lived for over twenty years.
We affirm the entry of summary judgment for appellees essentially
for the reasons stated in the district court's decisions dated
October 13, 2005 and March 30, 2006, adding only the following.
Appellants claim that they each suffer from mental
disabilities and that they requested a transfer to a different
apartment at Las Flores as a reasonable accommodation of those
disabilities. Appellants further claim that appellees' denial of
their transfer request constituted impermissible discrimination
against them on the basis of their disabilities in violation of the
Fair Housing Act ("FHA"), 42 U.S.C. § 3613, and section 504 of the
1974 Rehabilitation Act, 29 U.S.C. § 794.1 In order to make out a
prima facie case for failure to accommodate under the FHA,
appellants bear the burden of establishing three things: that the
requested accommodation is (1) reasonable and (2) necessary to (3)
afford the handicapped person equal opportunity to use and enjoy
the housing. Bryant Woods Inn v. Howard County, 124 F.3d 597, 603
1
Appellants have not appealed the dismissal without
prejudice of their supplemental claims based on Articles 1802 and
1803 of the Civil Code of Puerto Rico, 31 L.P.R.A. §§ 5141-42.
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(4th Cir. 1997); Schroeder v. Bertolo, 942 F. Supp. 72, 75 (D.P.R.
1996). But before a district court can assess whether a plaintiff
has met his or her burden of establishing each of the elements of
a prima facie case, the plaintiff must show that a special
accommodation of a disability was, in fact, requested. A routine
or "mundane" request, Reed v. LePage Bakeries, Inc.,
244 F.3d 254,
260 (1st Cir. 2001), such as a request to transfer to a different
apartment, does not rise to the level of a request for a reasonable
accommodation unless the plaintiff specifically explains "how the
accommodation requested is linked to some disability."
Id. at 261.
Even after indulging all inferences in appellants' favor,
our de novo review of the record shows that at the time appellants
requested a transfer to apartment #G-5, and for several months
after that request was denied, appellants repeatedly informed
appellees that they needed the transfer in order to get away from
conflicts with noisy neighbors, which they had been unable to
resolve. Appellants claim that throughout this time, appellees
were "well aware" of their disabilities and need for an
accommodation. To be sure, there is evidence in the record that
indicates that appellees made changes to appellants' apartment to
make it physically more accessible for Lydia E. Jimenez, who was
then 71 years old, and that Orlando Colon-Jimenez received Social
Security disability insurance benefits. But such general
"awareness" does not transform appellants' request to move to a
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different apartment into a request for a reasonable accommodation.
It is appellants' responsibility to put appellees "on notice by
making 'a sufficiently direct and specific request for special
accommodations.'" Gill v. Franklin Pierce Law School, 899 F. Supp.
850, 855 (D.N.H. 1995) (quoting Nathanson v. Med. Coll. of Pa.,
926
F.2d 1368, 1381 (3d Cir. 1991)). Indeed, beyond asserting that
appellants needed a quiet apartment in order to protect their
mental health, it was never made clear precisely how the transfer
request was linked to or made necessary by appellants'
disabilities.
In view of the lack of evidence on this crucial point,
the district court was correct in concluding that appellants'
transfer request represents not "even-handed treatment," as
required by the FHA, but an action that would give appellants
"greater opportunity than nonhandicapped persons," Bryant Woods
Inn, 124 F.3d at 604 (citing Southeastern Cmty. Coll. v. Davis,
442
U.S. 397, 410-11 (1979)), as transfers solely because of noise are
not permitted as of right at Las Flores and, as the district court
explained, virtually any tenant would prefer a quiet apartment over
a noisy one. Because appellants have failed to show appellees'
actions were discriminatory, their pretext claim also fails. Lewis
v. Gillette Co.,
22 F.3d 22, 25 (1st Cir. 1994) (per curiam). And,
finally, we find no evidence of retaliation against appellants.
-4-
The district court also correctly dismissed appellants'
due process claims. Appellants assert that appellees violated
their procedural due process rights by failing to restore Orlando
Colon-Jimenez to his mother's lease, yet nowhere in the record does
it appear that Colon-Jimenez ever applied for admission to the Las
Flores project after he voluntarily terminated his lease, nor does
the record contain any facts indicating that appellees' admissions
process was unavailable or inadequate. El Dia, Inc. v. Rossello,
20 F. Supp. 2d 296, 306 (D.P.R. 1998), aff'd,
165 F.3d 106 (1st
Cir. 1999).
To the extent that appellants also claim violations of
their substantive due process rights, we observe that, "[w]here, as
here, a plaintiff's substantive due process claim challenges
specific acts of a state officer, the plaintiff must show both that
the acts were so egregious as to shock the conscience and that they
deprived him of a protected interest in life, liberty, or
property." Pagán v. Calderón, 448 F.3d 16, 32 (1st Cir. 2006)
(citing Rivera v. Rhode Island,
402 F.3d 27, 34 (1st Cir. 2005)).
There is no "conscience-shocking" conduct in this record, and
appellants have not been deprived of housing -- they still reside
in the apartment that was modified to accommodate Lydia E.
Jimenez's physical disabilities.
The district court's grant of summary judgment is
affirmed.
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