United States District Court, W.D. Missouri, Southern Division
STEPHEN R. BOUGH, UNITED STATES DISTRICT JUDGE
the Court is Defendants' Motion to Dismiss
Plaintiff's First Amended Complaint. (Doc. #11). The
motion is GRANTED, and this case is dismissed without
se Plaintiff Theresa Marie Barbero was granted leave to
proceed in forma pauperis on May 24, 2019. Defendant
Wilhoit Property Management, Inc. filed a motion to dismiss
on June 10, 2019. On June 11, 2019, Plaintiff filed two
documents: 1) Plaintiff's Motion for Leave to File a
Statement of Claim; and 2) Plaintiff's Opposition to
Defendants' Motion to Dismiss. (Doc. ##8, 8-1). The Court
construed Plaintiff's Motion for Leave to File a
Statement of Claim as a motion for leave to file an amended
complaint. By Order, the Court reminded Plaintiff that
pursuant to Federal Rule of Civil Procedure 15(a)(1)(B) she
could amend her complaint once as a matter of course within
21 days after service of a motion under Rule 12(b). (Doc.
#9). Plaintiff timely filed her amended complaint, which she
titled “Statement of Claim, ” on June 22, 2019.
Defendant Wilhoit filed its second and present motion to
dismiss on July 8, 2019.
9, 2019, Plaintiff filed a motion for leave to amend the
complaint a second time. The Court denied Plaintiff's
motion for leave to amend for failure to comply with Rule
15(a)(2) and Local Rule 15.1(a). On July 13, 2019, Plaintiff
filed a document titled “Plaintiff's First
Proposed Amended Complaint.” (Doc. #16). The
Court construed this filing as a motion for leave to file a
second amended complaint. The Court denied the motion without
prejudice because Plaintiff again failed to comply with Rule
15(a)(2) in that she did not explain to the Court why justice
required the Court to grant leave to amend the complaint a
second time. (Doc. #17). On July 23, 2019, Plaintiff filed a
document titled “Plaintiff's Exhibit A Second
Proposed Amended Complaint.” (Doc. #18). Plaintiff
attached her proposed second amended complaint to this
filing. (Doc. #18-1). Plaintiff's filing did not respond
in any way to the arguments Defendant Wilhoit made in support
of its motion to dismiss Plaintiff's first amended
complaint. Rather, Plaintiff's filing argued that
“justice so requires for Plaintiff's second
proposed amended complaint . . . to be granted as Plaintiff
has met the criteria to proceed and defendants' motion to
dismiss should be denied.” (Doc. #18, p. 1).
factual allegations have remained consistent throughout her
many filings and attempted filings, although the claims she
attempts to assert have changed. Plaintiff alleges she was
denied the value of her HUD voucher when she was forced to
move out of Defendant Wilhoit's apartment only two weeks
after moving in, due to the living conditions, i.e., no
furniture, no internet, other tenants who harassed her, and
other tenants smoking outside her apartment. Plaintiff does
not allege why she was unable to use the HUD voucher prior to
the February expiration.
first amended complaint, at which the pending motion to
dismiss is directed, includes the following claims: 1) Count
1 - 42 U.S.C. § 1981, Equal Rights Under the Law; 2)
Count 2 - 42 U.S.C. § 12132, Discrimination; 3) Count 3
- 42 U.S.C. § 3617, Fair Housing Act Violations; 4)
Count 4 - Retaliation Violations; 5) Count 5 - 42 U.S.C.
§ 12101, ADA Violations, Title II & Title III; 6) 18
U.S.C. § 2255, Civil Remedy for Personal Injuries; 7) 42
U.S.C. § 1437z-1, Civil Money Penalties Against Section
1437f Owners; 8) 42 U.S.C. § 1437f, Grossly Negligent;
9) Count 9 - Non-Smokers Rights; 10) Count 10 - 42 U.S.C.
§ 1983, Civil Action for Deprivation of Rights; 11)
Count 11 - 42 U.S.C. § 1986, Action for Neglect to
Prevent; 12) Count 12 - 42 U.S.C. § 3613, Enforcement by
Private Persons; 13) Count 13 - 42 U.S.C. § 3604,
Discrimination in the Sale or Rental of Housing and other
Prohibited Practices; and 14) Count 14 - 42 U.S.C. §
3601, Declaration of Policy-Civil Rights Act 1968.
Plaintiff's proposed second amended complaint includes
the following claims: 1) Count 1 - Fraud; 2) Count 2 -
Discrimination; 3) Count 3 - Economic Losses; 4) Count 4 -
Retaliation; 5) Count 5 - Mental Anguish; 6) Count 6 -
Grossly Negligent; and 7) Count 7 - Non-Smokers Rights.
order to survive a motion to dismiss, Plaintiff's
complaint must meet the standard set out in Rule 8(a), which
requires that a plaintiff plead sufficient facts to state a
claim upon which relief may be granted. Fed.R.Civ.P. 8(a);
accord Fed. R. Civ. P. 12(b)(6). “To survive a
motion to dismiss, a complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face.'”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007)). Legal conclusions in the complaint merit no
determining whether a complaint alleges sufficient facts to
state a plausible claim to relief, all factual allegations
made by the plaintiff are accepted as true. McDonough v.
Anoka Cty., 799 F.3d 931, 945 (8th Cir. 2015), cert.
denied sub nom. McDonough v. Anoka County, Minn., 136
S.Ct. 2388 (2016). If the facts in the complaint are
sufficient for the Court to draw a reasonable inference that
defendants are liable for the alleged misconduct, the claim
has facial plausibility and will not be dismissed.
Iqbal, 556 U.S. at 678. The Court should be
especially deferential when reviewing the facts in a pro
se complaint. Topchian v. JPMorgan Chase Bank,
N.A., 760 F.3d 843, 849 (8th Cir. 2014) (“A
pro se complaint must be liberally construed . . .
and pro se litigants are held to a lesser pleading
standard than other parties[.]”). In other words, the
complaint should be construed “in a way that permits
the layperson's claim to be considered within the proper
legal framework.” Id. (quoting Stone v.
Harry, 364 F.3d 912, 915 (8th Cir. 2004)). However, the
Court should not “assume facts that are not alleged,
just because an additional factual allegation would have
formed a stronger complaint.” Stone, 364 F.3d
that Plaintiff has amended her complaint once as a matter of
right pursuant to Rule 15(a)(1)(B), any subsequent amendments
are governed by Rule 15(a)(2), which provides, “In all
other cases, a party may amend its pleading only with the
opposing party's written consent or the court's
leave. The court should freely give leave when justice so
requires.” “[P]laintiffs do not have an absolute
or automatic right to amend.” U.S. ex rel. Lee v.
Fairview Health Sys., 413 F.3d 748, 749 (8th Cir. 2005)
(citation omitted). A Court may deny leave to amend if the
amendment would be futile, meaning the proposed amended
complaint would not survive a motion to dismiss under Rule
12. Zutz v. Nelson, 601 F.3d 842, 850 (8th Cir.
given Plaintiff's failure to respond to Defendant
Wilhoit's arguments in support of the motion to dismiss
the first amended complaint, the Court is persuaded by
Defendant Wilhoit's arguments that the first amended
complaint fails to state a claim. Plaintiff's claims fail
for numerous reasons, and the following discussion with
respect to each count is not an exhaustive listing of the
fails because Plaintiff does not identify her race or allege
that her race affected her interactions with Defendant
Wilhoit. See 42 U.S.C. § 1981 (“All
persons within the jurisdiction of the United States shall
have the same right in every State and Territory to make and
enforce contracts, to sue, be parties, give evidence, and to
the full and equal benefit of all laws ...