THEODORE D. CHUANG, District Judge.
This case is before the Court on Defendants Burnt Mills Crossing, LLC and Robert C. Withrow's Motion to Dismiss, ECF No. 9, Defendant United States Department of Housing and Urban Development's Motion to Dismiss, ECF No. 18, and Plaintiff Derek N. Jarvis's Motion for Leave to File a Sur-Reply, ECF No. 22. Having reviewed the filings, the Court finds no hearing necessary. See Local Rule 105.6 (D. Md. 2014). For the reasons set forth below, the Motions to Dismiss are GRANTED, and the Motion for Leave to File a Sur-Reply is DENIED.
In 2012, Plaintiff Derek N. Jarvis ("Jarvis"),
According to Jarvis, "after learning his immigrant tenants towed the vehicle illegally," Withrow had Jarvis's car towed back to the apartment parking lot. Id. On November 14, 2012, Burnt Mills sent Jarvis a letter informing him that his lease would expire on January 30, 2013 and giving him notice that he was expected to vacate his apartment by that date. [Compl. Ex. 1 at 4.]. Jarvis alleges that Burnt Mills and Withrow declined to renew his lease "in retaliation for submitting [a] Complaint about [the] immigrant tenants." Id. at 3. Jarvis, who identifies himself as a "Black Native American," id. at 6, also contends that Burnt Mills and Withrow discriminated against him on the basis of race.
On August 9, 2013, Jarvis filed a complaint with the United States Department of Housing and Urban Development ("HUD") in which he asserted that Burnt Mills and Withrow had retaliated against him in violation of Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d ("Title VI") (2012). Title VI prohibits discrimination on the basis of "race, color, or national origin ... under any program or activity receiving Federal financial assistance." 42 U.S.C. § 2000d. Jarvis claims that HUD initially told him that Burnt Mills received federal funds, which would make the complex subject to Title VI. As evidence of this assertion, he appends an extract from a document that he purports is HUD's "intake determination" in his case. Compl. at 11. That document is the signature page of Jarvis's completed HUD complaint form, signed by Jarvis and his mother. Compl., Ex. 1 at 1, ECF No. 1-1. The mention of federal funds is in the answer to Question 9 of the form: "Types of Federal Funds identified," which is answered with "HUD Assisted Housing (202, 811, 221D4, Project Based Section 8)." Id. In a January 3, 2014 letter, however, HUD informed Jarvis that it had determined that Burnt Mills "does not receive Federal financial assistance as defined by Title VI," and concluded that HUD therefore did "not have jurisdiction to investigate the subject complaint." Compl., Ex. 1 at 2.
On November 5, 2014, Jarvis filed this suit, alleging violations of a host of statutes, including Title VI, the Fair Housing Act ("FHA"), 42 U.S.C. § 3601 et seq. (2012), and 42 U.S.C. § 1983 ("section 1983") (2012). His core claim against HUD appears to be that HUD engaged in fraud when it reversed its supposed initial determination that Burnt Mills did not receive federal funds, and then, based on that fraud, that HUD improperly refused to investigate Jarvis's discrimination claim. As to Burnt Mills and Withrow, Jarvis's core claim seems to be that those Defendants retaliated against him for his complaints about his neighbors by evicting him, in violation of Title VI and the FHA. On January 7, 2015, Burnt Mills and Withrow filed a Motion to Dismiss, to which Jarvis did not respond. ECF No. 9. On March 12, 2015, HUD filed a Motion to Dismiss, to which Jarvis responded on March 26, 2015. ECF Nos. 18 & 20. HUD filed its Reply on April 13, 2015. ECF No. 21. On April 17, 2015, Jarvis filed a Motion for Leave to File a Sur-Reply. ECF No. 22.
To overcome a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a complaint must allege enough facts to state a plausible claim for relief. Ashcroft v. lqbal, 556 U.S. 662, 678 (2009).
In evaluating the sufficiency of the plaintiff's claims, the Court must examine the complaint as a whole, consider the factual allegations in the complaint as true, and construe the factual allegations in the light most favorable to the plaintiff. Albright v. Oliver, 510 U.S. 266, 268 (1994); Lambeth v. Bd. of Comm'rs of Davidson Cnty., 407 F.3d 266, 268 (4th Cir. 2005). Complaints filed by pro se plaintiffs are "to be liberally construed" and "must be held to less stringent standards than formal pleadings drafted by lawyers." Erickson v. Pardus, 551 U.S. 89, 94 (2007). However, the complaint must contain more than "legal conclusions, elements of a cause of action, and bare assertions devoid of further factual enhancement." Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 255 (4th Cir. 2009).
In addition, because Jarvis's allegations against HUD sound in fraud, he is subject to the heightened pleading standards of Rule 9(b). See Fed. R. Civ. P. 9(b) ("In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake."). Under this heightened pleading standard, Jarvis must allege "the time, place, and contents" of the fraudulent representation, the identity of the person who made the misrepresentation, and "what he obtained thereby." Harrison v. Westinghouse Savannah River Co., 176 F.3d 776, 784 (4th Cir. 1999).
Jarvis asserts that when he first contacted HUD, HUD determined that Burnt Mills received federal funding within the meaning of Title VI, but that HUD later reversed itself and claimed that Burnt Mills did not receive federal monies. He labels this contradiction a "fraud," and argues that, based on this fraud, HUD improperly refused to investigate his Title VI complaint. Although he references various statutes, Jarvis appears to focus his claim for fraud and a failure to investigate on violations of section 1983 and the FHA.
Jarvis's claims against HUD fail for multiple reasons. First, a section 1983 claim may not be brought against a federal agency. Section 1983 allows individuals to sue in federal court any "person who, under color of any statute, ordinance, regulation, custom, or usage, of any State ... subjects or causes to be subjected, any citizen of the United States ... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws[.]" 42 U.S.C. § 1983. Because section 1983 applies only to persons acting under color of state law, it is inapplicable to federal agencies. See District of Columbia v. Carter, 409 U.S. 418, 424-25 (1973) (holding that because section 1983 proscribes discriminatory conduct "accomplished under the color of the law of any State," it "does not reach ... actions of the Federal Government and its officers") (internal quotation marks omitted)). See also FDIC v. Meyer, 510 U.S. 471, 486 (1994) (holding that federal agencies may not be sued for constitutional claims under Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971)).
Second, to the extent that Jarvis alleges a violation of the FHA, there is no cause of action under the FHA against HUD for failure to investigate a claim. See Godwin v. Sec'y of Hous. and Urban Dev., 356 F.3d 310, 312 (D.C. Cir. 2004); Marinoff v. US. Dept. of Hous. and Urban Dev., 78 F.3d 64, 64 (2d Cir. 1996) (affirming district court's holding that HUD could not be sued under the FHA for a failure to investigate a plaintiff's claims of discrimination).
Third, Jarvis has not alleged facts sufficient to support a plausible claim that HUD acted in a fraudulent manner. Rather than offer any facts to support the assertion that Burnt Mills had received Federal financial assistance within the meaning of Title VI, Jarvis offers only HUD's "intake determination," in which Burnt Mills is listed as receiving federal monies for "HUD Assisted Housing (202, 811, 221D4, Project Based Section 8)." Compl., Ex. 1 at 1.
The FHA prohibits discrimination in rental housing on the basis of race, color, religion, sex, national origin, familial status, or disability. 42 U.S.C. § 3604(a). The FHA also makes it illegal to "coerce, intimidate, threaten, or interfere with any person in the exercise or enjoyment of, or on account of his having exercised or enjoyed, or on account of his having aided or encouraged any other person in the exercise or enjoyment of, any right granted or protected" by the FHA. 42 U.S.C. § 3617. To state a claim for retaliation under the FHA, a plaintiff must establish that (1) he exercised a right granted or protected under the FHA, (2) the defendant was aware of that activity, (3) the defendant took adverse action against the plaintiff, and (4) a causal connection exists between the protected activity and the adverse action. See Hall v. Greystar Mgmt. Servs., L.P., 28 F.Supp.3d 490, 495 (D. Md. 2014) (citing Price v. Thompson, 380 F.3d 209, 212 (4th Cir. 2004), rev'd on other grounds, 468 Fed. Appx. 283 (4th Cir. 2012), which lists the elements of retaliation in a Title VII case).
Jarvis has failed to state a claim for retaliation under the FHA because he has not alleged that the retaliation was a response to his exercise of a right protected by the FHA, specifically making a complaint that he was a victim of discrimination. The FHA protects individuals from discrimination by a landlord on the basis of race, color, religion, sex, national origin, familial status, or disability, and thus also protects individuals from being retaliated against by that landlord if they take actions to assert or protect the right not to be discriminated against on those bases. Jarvis, however, alleges that his lease was not renewed "in retaliation for submitting [a] Complaint about ... immigrant tenants" in the apartment complex, a complaint he submitted to Withrow, the manager of the complex, after those tenants allegedly had his car towed. Compl. at 3, 10. Jarvis's own allegations thus establish that he is not claiming retaliation in response to a complaint he made about being the victim of discrimination. Instead, his claim is based on a complaint he made about loud parties and the alleged towing of his car by "African and Hispanic immigrant tenants." Id. at 9. Submitting a complaint to one's landlord about the loud habits and possible retaliatory actions of fellow tenants is not an activity protected under the FHA. Other than his isolated and unconnected assertion that he is a "Black Native American," Jarvis makes no concrete allegation that anyone—the apartment complex or his fellow tenants— discriminated against him on the basis of any of the categories outlined in the FHA. Therefore, Jarvis fails plausibly to allege that he was retaliated against for exercising his right under the FHA to be free from housing discrimination. Instead, the only discrimination discernible from Jarvis's Complaint is his own apparent disdain for "African and Hispanic immigrant tenants." Jarvis's claims of discrimination under the FHA are therefore dismissed.
Jarvis also alleges that he was retaliated against by Burnt Mills and Withrow in violation of Title VI. Title VI prohibits discrimination on the basis of "race, color, or national origin ... under any program or activity receiving Federal financial assistance." 42 U.S.C. § 2000d. As explained above, Jarvis's Complaint fails to establish that Burnt Mills receives federal financial assistance as defined in Title VI and therefore fails to establish that Burnt Mills is subject to suit under Title VI. However, even if Burnt Mills were subject to suit under Title VI, Jarvis's claim still fails. To state a claim for retaliation under Title VI, plaintiff must show that (1) he engaged in protected activity; (2) the defendant took a material, adverse action against the plaintiff, and (3) there is a causal connection between the protected activity and the adverse action. Peters v. Jenney, 327 F.3d 307, 320 (4th Cir. 2003). As discussed above, Jarvis has failed to allege facts sufficient to establish that he engaged in protected activity, such as complaining that he was victim of discrimination by his landlord on the basis of his race, color, or national origin, before the allegedly retaliatory action. Jarvis's Title VI claim is therefore dismissed.
In his Motion for Leave to File a Sur-Reply, Jarvis reiterates the claims he makes in his Complaint and in his Response to HUD's Motion to Dismiss, and again attaches the "intake determination" and the January 2013 letter from HUD for the Court's reference. Because Jarvis merely rehashes arguments he has already made, his Motion for Leave to File a Sur-Reply is denied. See Khoury v. Meserve, 268 F.Supp.2d 600, 605 (D. Md. 2003) (explaining that, as a general rule, sur-replies are not permitted, and should be allowed only when the "moving party would be unable to contest matters presented to the court for the first time in the opposing party's reply").
For the foregoing reasons, Defendants' Motions to Dismiss are GRANTED, Plaintiff's Motion for Leave to File a Sur-Reply is DENIED, and the Complaint is DISMISSED. A separate Order follows.
