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Thymes v. AT & T Mobility Services LLC

United States District Court, W.D. Louisiana, Lafayette Division

March 19, 2019

CARL GENE THYMES
v.
AT&T MOBILITY SERVICES, LLC, ET AL.

          SUMMERHAYS MAGISTRATE JUDGE

          REPORT AND RECOMMENDATION

          PATRICK J. HANNA UNITED STATES MAGISTRATE JUDGE

         This Court undertook a sua sponte review of the court's subject-matter jurisdiction over this action and a sua sponte review of the plaintiff's complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure. This Court then ordered the plaintiff to amend his complaint. (Rec. Doc. 12). The plaintiff complied with the order and filed an amended complaint. (Rec. Doc. 13). Having carefully reviewed the amended complaint (Rec. Doc. 13) and for the reasons fully explained below, this Court now recommends that the claims asserted in the plaintiff's amended complaint (Rec. Doc. 13) should be dismissed without prejudice either for lack of subject-matter jurisdiction or for failure to state a claim upon which relief can be granted by the court.

         Background

         In June 2018, the plaintiff filed a lawsuit in the United States District Court for the Western District of Louisiana, which was assigned Civil Action No. 6:18-cv-00867. The plaintiff asserted claims against AT&T Mobility Services, LLC; Sans Chevaux Investments, LLC; CIA/Cointelpro; L'Auberge Casino and Hotel; and the United States Equal Employment Opportunity Commission. This Court conducted a sua sponte jurisdictional review and recommended that the suit be dismissed for lack of subject-matter jurisdiction. (Rec. Doc. 105 in No. 6:18-cv-00867). The recommendation was adopted, and the suit was dismissed without prejudice. (Rec. Doc. 107 in No. 6:18-cv-00867).

         In January 2019, the plaintiff removed a suit from the 15th Judicial District Court, Lafayette Parish, Louisiana, to the United States District Court for the Western District of Louisiana, which was assigned Civil Action No. 6:19-cv-00060. In the removal notice, Mr. Thymes stated that the suit had been brought against him by San Chevaux Investments, LLC under Docket No. 20190295 on the state court's docket, but the plaintiff did not attach a copy of the state-court petition to his complaint. The plaintiff alleged subject-matter jurisdiction under 28 U.S.C. § 1331 based on alleged violations of the Fair Housing Act. But there was no evidence that the claims asserted against Mr. Thymes by the plaintiff in the state-court action arose under federal law. Instead, Mr. Thymes attempted to assert a counter-claim against Sans Chevaux Investments, LLC and others - the same parties he had sued in the earlier lawsuit - under the Fair Housing Act. (Rec. Doc. 6 in No. 6:19-cv-00060). Because he had not requested leave of court to file the counter-claim, however, the counter-claim was stricken from the record. (Rec. Doc. 15 in No. 6:19-cv-00060). Mr. Thymes also reiterated the claims he had asserted in Civil Action No. 6:18-cv-00867. Accordingly, the case was dismissed for lack of subject-matter jurisdiction. (Rec. Doc. 5 in No. 6:19-cv-00060).

         Mr. Thymes then filed this third lawsuit, which was assigned Civil Action No. 6:19-cv-00090. He again sued the same five defendants: AT&T Mobility Services, LLC; Sans Chevaux Investments, LLC; CIA/FBI/COINTELPRO;[1] L'Auberge and Hotel Casino/Pinnacle Entertainment; and the United States Equal Employment Opportunity Commission (“EEOC”). Suspecting that the court might lack subject-matter jurisdiction over the third lawsuit, this Court ordered Mr. Thymes to appear in court and show cause why this lawsuit should not be dismissed on the same grounds as his two previous lawsuits. (Rec. Doc. 4). Mr. Thymes appeared as ordered on February 21, 2019, and a hearing was held with regard to the factual allegations underlying the claims asserted in this lawsuit.

         Following the hearing, Mr. Thymes was ordered to file an amended complaint. (Rec. Doc. 12). More particularly, he was ordered to “clearly state the basis for the court's subject-matter jurisdiction and set forth all facts necessary to support a finding that the court has subject-matter jurisdiction.” (Rec. Doc. 12 at 19). He was ordered to state, “with regard to each and every one of [his] claims against each and every defendant. . . the federal statute that the plaintiff claims the defendant violated, . . . [and] the facts supporting the claim, including, at a minimum, who did what, when it was done, and what damages resulted.” (Rec. Doc. 12 at 19). With regard to his Section 1983 and Bivens claims, he was ordered to identify the Constitutional provisions allegedly violated, the persons who violated them, and when the violation occurred. (Rec. Doc. 12 at 20). With regard to his conspiracy claims, he was ordered to “identify the persons who conspired, the purpose of the conspiracy, the actions taken pursuant to the conspiracy, the time period when those actions occurred, and the federal statute that was allegedly violated.” (Rec. Doc. 12 at 20). The plaintiff was cautioned that claims outside the scope of the court's subject-matter jurisdiction and claims failing to satisfy the requirements of Rule 12(b)(6) of the Federal Rules of Civil Procedure would be dismissed. (Rec. Doc. 12 at 19).

         The plaintiff then filed an amended complaint. This Court reviewed the amended complaint to determine whether the claims fall within the scope of the court's subject-matter jurisdiction and whether the plaintiff has stated a claim against each of the five defendants upon which relief can be granted by the court.

         Law and Analysis

         Pro Se Status

         Mr. Thymes is proceeding in this lawsuit without the assistance of legal counsel. A pro se litigant's pleadings are construed liberally[2] and held to “less stringent standards than formal pleadings drafted by lawyers.”[3] However, a pro se “plaintiff must prove, by a preponderance of the evidence, that the court has jurisdiction based on the complaint and evidence.”[4] A pro se plaintiff must also abide by the rules that govern federal courts[5] and properly plead sufficient facts that, when liberally construed, state a plausible claim to relief.[6]

         A court may sua sponte dismiss a plaintiff's claims on its own motion under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim so long as the plaintiff has notice of the court's intention to do so and an opportunity to respond.[7] However, a court should generally allow a pro se plaintiff an opportunity to amend his complaint before dismissing it for failure to state a claim.[8]

         In this case, Mr. Thymes was given an opportunity to amend his complaint (Rec. Doc. 12) and he took advantage of that opportunity by filing the amended complaint (Rec. Doc. 13). This Court additionally advised Mr. Thymes that “any claim set forth in the amended complaint that falls outside the scope of the court's subject-matter jurisdiction will be dismissed” and that “any claim set forth in the amended complaint that does not satisfy the requirements of Rule 12(b)(6) of the Federal Rules of Civil Procedure will be dismissed.” (Rec. Doc. 12 at 19). Accordingly, this Court has afforded the plaintiff the protections necessitated by his pro se status.

         Subject-Matter Jurisdiction

         Federal district courts are courts of limited jurisdiction, possessing only the power authorized by the Constitution and by statute.[9] Accordingly, federal courts have subject-matter jurisdiction only over civil actions presenting a federal question[10] and those in which the amount in controversy exceeds $75, 000 exclusive of interest and costs and the parties are citizens of different states.[11] A suit is presumed to lie outside a federal court's jurisdiction until the party invoking federal-court jurisdiction establishes otherwise.[12]

         Absent subject-matter jurisdiction, a federal court has no power to adjudicate claims and must dismiss an action if subject-matter jurisdiction is lacking.[13]“Federal courts, both trial and appellate, have a continuing obligation to examine the basis for their jurisdiction. The issue may be raised by parties, or by the court sua sponte, at any time.”[14] “If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.”[15] A district court may dismiss a case for lack of subject-matter jurisdiction on the basis of “(1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts.”[16]

         The party asserting federal jurisdiction has the burden of proving its existence by a preponderance of the evidence.[17] Accordingly, the plaintiff must bear that burden in this case.

         Diversity Jurisdiction

         A federal court may exercise “original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75, 000, ” and the parties are “citizens of different States.”[18] The amended complaint does not allege that the court's subject-matter jurisdiction is grounded on diversity, and it does not contain information sufficient for this Court to determine whether the parties are diverse in citizenship. Therefore, this Court finds that the plaintiff did not establish subject-matter jurisdiction under 28 U.S.C. § 1332.

         Federal-Question Jurisdiction

          Federal courts possess original jurisdiction over civil actions arising under federal law.[19] “A suit arises under the Constitution and laws of the United States only when the plaintiff's statement of his own cause of action shows that it is based upon those laws or that Constitution.”[20] Federal-question jurisdiction is most frequently invoked when federal law creates the cause of action.[21] However, federal-question jurisdiction has also been found in some state-law claims if “(1) resolving a federal issue is necessary to resolution of the state-law claim; (2) the federal issue is actually disputed; (3) the federal issue is substantial; and (4) federal jurisdiction will not disturb the balance of federal and state judicial responsibilities.”[22]

         “The presence or absence of federal-question jurisdiction is governed by the ‘well-pleaded complaint rule,' which provides that federal jurisdiction exists only when a federal question is presented on the face of the plaintiff's properly pleaded complaint.”[23] In other words, federal-question jurisdiction “exists when ‘a well- pleaded complaint establishes either that federal law creates the cause of action or that the plaintiff's right to relief necessarily depends on resolution of a substantial question of federal law.'”[24] Generally, a suit arises under federal law for purposes of establishing federal-question jurisdiction if there appears on the face of the complaint some substantial, disputed question of federal law.[25] A pro se complaint must comply with the well-pleaded complaint rule.[26]

         In the amended complaint, Mr. Thymes alleged that the court has subject-matter jurisdiction based on a federal question arising under Title II of the Civil Rights Act of 1964, 42 U.S.C. § 1981; the Racketeer Influenced and Corrupt Organizations Act (“RICO”); and the Fair Housing Act, 42 U.S.C. § 3604(b). He also alleged a deprivation of rights under 42 U.S.C. § 1983. Each of these alleged bases for subject-matter jurisdiction will be discussed below.

         The Standard for Evaluating a Claim under Fed.R.Civ.P. 12(b)(6)

         A claim is properly dismissed under Rule 12(b)(6) of the Federal Rules of Civil Procedure when it fails to state a legally cognizable claim.[27] In analyzing whether a valid claim has been stated, a district court must limit itself to the contents of the pleadings, including any attachments thereto, [28] accept all well-pleaded facts as true, and view the facts in a light most favorable to the plaintiff.[29] Conclusory allegations and unwarranted deductions of fact are not accepted as true, [30] and courts “are not bound to accept as true a legal conclusion couched as a factual allegation.”[31]

         To survive Rule 12(b)(6) scrutiny, the plaintiff must plead “enough facts to state a claim to relief that is plausible on its face.”[32] The allegations must be sufficient “to raise a right to relief above the speculative level, ”[33] and “the pleading must contain something more. . . than. . . a statement of facts that merely creates a suspicion [of] a legally cognizable right of action.”[34] “While a complaint. . . does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.”[35] If the plaintiff fails to allege facts sufficient to “nudge[ ][his] claims across the line from conceivable to plausible, [his] complaint must be dismissed.”[36]

         A claim meets the test for facial plausibility “when the plaintiff pleads the factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”[37] “[D]etermining whether a complaint states a plausible claim for relief. . . [is] a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.”[38]Therefore, “[t]he complaint (1) on its face (2) must contain enough factual matter (taken as true) (3) to raise a reasonable hope or expectation (4) that discovery will reveal relevant evidence of each element of a claim.”[39]

         The Plaintiff's RICO Claims

          In the amended complaint, the plaintiff attempted to assert a claim against each of the five defendants under the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1962, et seq. RICO creates a civil cause of action for any person whose business or property was injured by another's violation of the statute.[40] To establish standing to bring a private suit under RICO, a plaintiff must satisfy two elements: injury and causation.[41]

         Mr. Thymes lacks standing to bring his RICO claims because he has not alleged an injury to his business or property. Personal injuries and losses flowing therefrom are insufficient to establish RICO standing.[42] “A plaintiff may not sue under RICO unless he can show concrete financial loss.”[43] In this case, however, the only financial losses alleged by Mr. Thymes are his gambling losses. While he attempted to tie those losses to actions by L'Auberge that supposedly kept him in the casino longer than he had planned to be there, those losses were the result of his own voluntary actions and were not directly caused by the actions of L'Auberge or any other defendant. This Court therefore finds that Mr. Thymes did not allege that his business or property was damaged nor did he allege facts showing a causal connection between his alleged losses and the actions of the defendants. Consequently, he lacks standing to bring a RICO claim. Because standing is jurisdictional, [44] Mr. Thymes is “not entitled to have [his] claim[] litigated in federal court, ”[45] and his RICO claim does not give the court subject-matter jurisdiction over this action.

         Mr. Thymes also failed to allege facts sufficient to state a civil RICO claim. To state such a claim, a plaintiff must allege facts related to three elements: (1) a person who engages in (2) a pattern of racketeering activity, (3) connected to the acquisition, establishment, conduct, or control of an enterprise.[46] “A pattern of racketeering activity consists of two or more predicate criminal acts that are (1) related and (2) amount to or pose a threat of continued criminal activity.”[47] The predicate criminal acts can be violations of either state or federal law.[48]

         The only allegations of criminal activity set forth in the amended complaint are the plaintiff's allegations that CIA/FBI broke into his home and committed “hate crimes.” But the plaintiff cannot state a RICO claim against CIA/FBI. “[E]very court to address the issue has found that the Federal Government and its employees are immune from suit under the civil RICO statute.”[49] Furthermore, the Fifth Circuit has rejected the idea that a federal agency can be sued under the RICO statute.[50]

         With regard to the other four defendants, there are no allegations in the amended complaint establishing racketeering activity, much less a pattern of such activity. The statute defines the term racketeering activity as including certain offenses listed in 18 U.S.C. § 1961. Mr. Thymes did not allege that the other defendants committed any of the listed crimes. In fact, he did not allege that those defendants engaged in any criminal activity whatsoever. For that reason, he did not establish that the defendants engaged in predicate criminal acts necessary to establish either racketeering activity or a pattern of racketeering activity.

         Furthermore, Mr. Thymes has not alleged any facts supporting the existence of an agreement among the five defendants to form or advance a criminal enterprise. RICO defines the term enterprise as including “any individual, partnership, corporation, association, or other legal entity, and any union or group of individuals associated in fact although not a legal entity.”[51] “[A] RICO civil conspiracy complaint, at the very least, must allege specifically such an agreement.”[52] The only part of the amended complaint that might generously be construed as alleging the existence of a conspiracy has to do with L'Auberge and the federal agents. Mr. Thymes alleged that “if L'Auberge Casino Hotel has formed a conspiracy with these corrupt agents, then that is a crime.”[53] But this is not a factual allegation that L'Auberge conspired with CIA/FBI to engage in criminal activity; instead, it is a purely conjectural speculation, signified by the use of the word “if.” There are no factual allegations in the amended complaint regarding a connection between the five defendants sufficient to support a finding that there was any type of collusion, conspiracy, or coordinated actions or activities between them, and there are no factual allegations showing that the defendants associated for the purpose of engaging in a particular course of conduct. In fact, the plaintiff has cobbled together distinct claims against five completely unrelated defendants that likely should not have been brought in the same proceeding. One potential common denominator is that Mr. Thymes seems to be alleging that he was discriminated against by each of the defendants due to his race. But civil rights violations do not constitute racketeering activity within the meaning of RICO.[54]

         In this case, the plaintiff has pleaded nothing more than conclusory allegations to support his RICO claim. He did not allege facts supporting a conclusion that he has standing to bring the claim, that the defendants engaged in criminal activity, or that the defendants entered into an enterprise, and he cannot bring a civil RICO claim against the federal agencies that he sued. For these reasons, the plaintiff has not stated a RICO claim that supports federal-question jurisdiction or that survives scrutiny under Fed.R.Civ.P. 12(b)(6). Consequently, it is recommended that his RICO claim be dismissed.

         The Section 1983 Claims

         Without identifying the actions or omissions of any particular defendant, the plaintiff referred to 42 U.S.C. § 1983 in his complaint. Section 1983 provides a claim against anyone who “under color of any statute, ordinance, regulation, custom, or usage, of any State” violates another's constitutional rights.[55] Section 1983 is not a source of substantive rights; it merely provides a method for vindicating federal rights conferred elsewhere.[56] To state a Section 1983 claim, a plaintiff must (1) allege a violation of a right secured by the Constitution or laws of the United States and (2) demonstrate that the alleged deprivation was committed by a person acting under color of state law.[57] Whether a defendant acted under color of state law and is subject to liability under Section 1983 depends on the plaintiff's allegations.

         Most rights secured by the Constitution protect only against infringement by governments.[58] The deprivation of a federal right is attributable to the state and therefore occurs under color of law when (1) the deprivation is caused by the exercise of a right or privilege created by the state, a rule of conduct imposed by the state, or a person for whom the state is responsible; and (2) when the party charged with the deprivation is a state actor, either because he is a state official, because he acted together with or obtained significant aid from state officials, or because his conduct is otherwise chargeable to the state.[59] “Private individuals generally are not considered to act under color of law.”[60] Defendants AT&T, Sans Chevaux, and L'Auberge are private companies rather than governmental entities. Therefore, they cannot be liable to Mr. Thymes under Section 1983.

         The CIA/FBI and EEOC are federal government entities. A claim that a federal official violated constitutional rights may not be brought under Section 1983; however, such a claim might be brought under Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971).[61] The plaintiff cited Bivens in his complaint, but he did not expressly state that he was asserting claims against the federal agencies under Bivens. Indeed, he cannot. Bivens provides a cause of action only against government officers in their individual capacities.[62] The plaintiff did not identify any individual agents or employees with the CIA or FBI whose actions might form the basis of CIA/FBI's alleged liability to him. He mentioned the names of two EEOC employees, but he did not sue them. He did not identify the Constitutional provisions that he contends were violated by these agencies. This Court therefore concludes that the plaintiff did not state a claim under Section 1983 or under Bivens that the court can remedy. Accordingly, the Court recommends that any Section 1983 or Bivens claim asserted by the plaintiff should be dismissed.

         The Claim Against AT&T Mobility

          The plaintiff asserted an employment discrimination claim against AT&T Mobility. He alleged that he was employed by AT&T as a customer service representative from September 25, 2017 until March 29, 2018, when he resigned his position.[63] He alleged that, during his employment, AT&T discriminated against him, harassed him, and subjected him to a hostile work environment “for no reason but racial prejudice, ”[64] which caused him to become ill and resign his position. He also alleged that the EEOC issued him a right-to-sue letter.[65]

         The plaintiff's claim against AT&T Mobility is a hostile work environment claim grounded on 42 U.S.C. § 1981. The court has subject-matter jurisdiction over the claim because it is based on the alleged violation of a federal statute.

         Title VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1981 both prohibit employers from taking adverse employment actions against employees on the basis of race, and courts use the same standard to analyze hostile work environment claims brought under Section 1981 as they do when such claims are brought under Title VII.[66] Section 1981 affords an aggrieved employee a right of action against private actors such as AT&T Mobility.[67]

         To establish a prima facie case of harassment constituting a hostile work environment, a plaintiff must show that: (1) the employee belongs to a protected group; (2) the employee was subjected to unwelcome harassment; (3) the harassment was based on the protected characteristic; (4) the harassment affected a term, condition, or privilege of employment; and (5) the employer knew or should have known of the harassment but failed to take prompt remedial action.[68] While a plaintiff need not make out a prima facie case of harassment in order to survive a Rule 12(b)(6) motion to dismiss for failure to state a claim, [69] the plaintiff must plead factual content that would allow the court to draw a reasonable inference that the defendant is liable for the alleged misconduct.[70]

         A hostile work environment exists when the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment.[71] In determining whether a hostile work environment claim is actionable, the reviewing court must consider the totality of the circumstances, focusing on: (1) the frequency of the discriminatory conduct; (2) the severity of the conduct; (3) whether it is physically threatening or humiliating or a mere offensive utterance; and (4) whether it unreasonably interferes with an employee's work performance.[72] Discourtesy, rudeness, teasing, offhand comments, and isolated incidents (unless extremely severe) do not amount to “discriminatory changes in the terms and conditions of employment.”[73] Instead, the conduct complained of must be so pervasive and severe that it is both objectively and subjectively offensive.[74] A hostile work environment is one in which the abuse is continuous, not merely episodic.[75]

         In this case, there is no dispute that the plaintiff belongs to a protected group since he alleged that he is “a black American.”[76] But the amended complaint does not contain any allegations evidencing race-based harassment or establishing harassment sufficient to alter the conditions of the plaintiff's employment or create an abusive working environment. The plaintiff did not allege that his coworkers used derogatory slurs or racially offensive comments in the workplace. Most of the events he complained about had to do with his automobile, presumably when it was parked outside the workplace. He alleged that gasoline was stolen out of his car on multiple occasions, but he did not allege that a coworker stole the gasoline. He alleged that he found flying insects in his car, but he did not allege that a coworker caused the insects to be in his car. He alleged that his car was broken into, but he did not allege that a coworker broke into it. He alleged that his sunglasses are missing from his car, but he did not allege that a coworker stole them. None of those incidents occurred in the workplace and there is no allegation tying these alleged occurrences to the conditions under which his work had to be performed.

         The plaintiff alleged two additional separate but unrelated incidents. He alleged that a coworker gave him a contaminated breakfast burrito and that his manager swung at his head without actually hitting him. Those two isolated incidents do not support a finding that the plaintiff was subjected to harassment in the work environment that was frequent, humiliating, severe, affected his ability to do his job, or was based on his race.

         The plaintiff also alleged that he was shunned at work and made to feel unwanted, but the amended complaint did not allege that the plaintiff was shunned because of his race. Further, the amended complaint does not state how often the plaintiff was shunned, who shunned him, or how this affected his ability to do his work. Thus, the plaintiff failed to allege how being shunned by his coworkers was “sufficiently severe or pervasive to alter the conditions of the [his] employment and create an abusive working environment.”[77] When a plaintiff alleges that he is shunned or ostracized without also alleging specific facts concerning the nature, severity, or pervasiveness of this treatment, the allegation alone is insufficient to state a claim based on a hostile work environment.[78] Because “section 1981 does not impose a general civility code, ”[79] and the plaintiff has made no factual allegations suggesting that frequently being shunned by his co-workers reached a significant level of pervasiveness, the plaintiff's allegations of ostracism are insufficient to support a hostile work environment claim.

         Finally, the plaintiff alleged that a coworker developed a relationship with his girlfriend, causing her to leave him. That allegation simply does not support a work-related claim.

         Even when reading all of the amended complaint's factual allegations in a light most favorable to the plaintiff, this Court finds that the plaintiff failed to plead facts establishing that the nature and frequency of his coworkers' alleged actions were objectively severe and pervasive so as to create a hostile work environment. This Court therefore declines to find a reasonable inference that the defendant is liable for the misconduct alleged. In other words, the plaintiff failed to state a Section 1981 hostile work environment claim that the court can remedy. Accordingly, this Court recommends that this claim be dismissed.

         The Claim Against Sans Chevaux

         Mr. Thymes appears to have asserted two claims against Sans Chevaux, one of which appears to be a federal claim and the other of which appears to be a Louisiana state-law claim. The plaintiff alleged that he entered into a lease/purchase agreement with Sans Chevaux, through its principal, realtor Robert Leonard. He alleged that he later discovered that the house he purchased has termites, roof damage, and an air conditioner that does not blow cold air. He alleged that he brought these conditions to the attention Mr. Leonard, who refused to renegotiate the terms of the lease/purchase agreement. This appears to be a claim under the Fair Housing Act, which is a federal statute. The plaintiff also alleged that Mr. Leonard failed to provide the plaintiff with a Louisiana Residential Property Disclosure Agreement, in violation of a Louisiana statute.

         The Fair Housing Act is a federal statute that prohibits discrimination “against any person in the terms, conditions, or privileges of sale or rental of a dwelling. . . because of race”[80] or because of a person's membership in certain other protected classes. More particularly, the Fair Housing Act makes it unlawful “to refuse to negotiate for the sale or rental of. . . a dwelling to any person because of race” or because of a person's membership in certain other protected classes.[81] The Fair Housing Act expressly affords an aggrieved person a private right of action for discriminatory housing practices.[82] The court would have subject-matter jurisdiction over a properly-pleaded claim under the Fair Housing Act because such a claim is based on the alleged violation of a federal statute.

         In addressing the Fair Housing Act, the plaintiff alleged that he is a black American.[83] But he did not allege that Sans Chevaux refused to renegotiate the lease/purchase agreement because he is black nor did he allege any facts that would support the conclusion that Sans Chevaux treated African-American people differently from people of other races. In fact, he did not state how any actions or omissions of San Chevaux violated the Fair Housing Act. Such allegations are a prerequisite to a racial discrimination claim under the Fair Housing Act.[84] With nothing more than a nonspecific, conclusory allegation of discrimination by Sans Chevaux, the plaintiff cannot maintain his claim. Accordingly, because the plaintiff has failed to provide any factual basis for discriminatory treatment by Sans Chevaux, that Court recommends that his discrimination claim under the Fair Housing Act should be dismissed for failure to state a claim.[85]

         The plaintiff's second claim against Sans Chevaux is based on the allegation that Mr. Leonard failed to provide him with a form that must, in accordance with Louisiana state law, be given by a seller of residential real estate to a purchaser of such property, under La. R.S. 9:3198. This claim does not provide a basis for federal-question subject-matter jurisdiction. It is purely a state-law claim, which will be addressed again, below.

         The Claim Against L'Auberge

          The plaintiff alleged that the court has subject-matter jurisdiction over his claim against L'Auberge because it is a claim for discrimination in public accommodations in violation of Title II of the Civil Rights Act of 1964, 42 U.S.C. § 2000a.[86] Title II guarantees “the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation. . . without discrimination or segregation on the ground of race, color, religion, or national origin.”[87] A Title II claim seeks to remedy the denial to the plaintiff of the full and equal enjoyment of the ...


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