United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted June 27, 2012

*

Decided June 29, 2012

Before

JOEL M. FLAUM, Circuit Judge

ILANA DIAMOND ROVNER, Circuit Judge

ANN CLAIRE WILLIAMS, Circuit Judge

No. 12-1189

UNITED STATES OF AMERICA,

Plaintiff,

v.

WHPC-DWR, LLC, et al.,

Defendants-Appellees.

APPEAL OF: RICHARD SINGSIME,

Intervenor-Appellant.

Appeal from the United States District

Court for the Eastern District of Wisconsin.

No. 10-CV-590-JPS

J.P. Stadtmueller,

Judge.

O R D E R

Richard Singsime claims that the owner and managers of an apartment building

violated the Fair Housing Act, 42 U.S.C. §§ 3601–19, by not designating for his use one of

the parking spaces closest to the building entrance. Singsime had complained to the United

States Department of Housing and Urban Development, which investigated and found

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1

After examining the briefs and the record, we have concluded that oral argument is

*

unnecessary. Thus, the appeal is submitted on the briefs and record. See FED. R. APP. P.

34(a)(2)(C).
No. 12-1189 Page 2

reasonable cause to believe that a discriminatory practice had existed.

See id. § 3610(a)(1), (g)(1). On that basis the Secretary of HUD issued an administrative

charge of discrimination. See id. § 3610(g)(2)(A). Singsime could have sued in federal court

even without that administrative charge, see id. § 3613, but with the charge in hand he

gained the additional options of vetting the dispute before an Administrative Law Judge

or, alternatively, compelling the Attorney General to sue on his behalf,

see id. § 3612(a), (b), (o)(1). Singsime elected the last of these options, yet after the United

States filed suit he hired his own lawyer and intervened, citing a statutory provision

authorizing any “aggrieved party” to intervene in a suit brought by the Attorney General.

See id. § 3612(o)(2). Singsime did not substitute himself as plaintiff, and neither did he

object when the United States settled the suit. Even so, the Consent Order signed by the

district judge allowed Singsime to continue litigating as if there had been no resolution of

his claims, and eventually he lost at summary judgment. Singsime, who is now pro se,

appeals from that adverse decision.

The facts, which we recite in the light most favorable to Singsime, are undisputed

unless otherwise noted. See Nova Design Build, Inc. v. Grace Hotels, LLC, 652 F.3d 814, 817

(7th Cir. 2011). From October 2008 until November 2009, Singsime lived at Village Square,

an 18-unit, HUD-subsidized apartment building in Walworth, Wisconsin, that rents

exclusively to tenants who are 62 and older or disabled. Village Square is owned by

WHPC-DWR, LLC, a nonprofit corporation devoted to providing affordable housing, and

managed by Cardinal Capital Management, Inc.

Most tenants at Village Square have difficulty ambulating, and some use

wheelchairs, walkers, or other assistive devices. Singsime suffers, too, from conditions

impeding his ability to walk, including idiopathic peripheral neuropathy and peripheral

vascular disease. He uses a cane and wears leg braces but, like ten or eleven other residents,

owned a car while living at Village Square. Singsime had a placard authorizing him to park

in spaces designated for the disabled, see WIS. STAT. § 343.51, but so did three, and

sometimes four, other residents.

When Singsime moved in, Village Square was allocating its twelve parking spaces

on a “first come, first served” basis. No spot was permanently assigned. The spaces were

divided among two rows. The first row, located directly in front of the building, had five

spaces. Of those the space closest to the door of the building had a curb cut and was

identified, by a sign and pavement markings, as reserved for the disabled. The complaint

alleges that the adjacent space also was marked on the pavement as reserved for the

disabled but did not have a sign. An understanding had been reached among the existing

residents that use of the space with the curb cut would be limited to temporary parking;
No. 12-1189 Page 3

residents and visitors with cars, including those residents with “handicapped” placards,

parked in other spaces so that the spot closest to the door would be left open for emergency

vehicles and to accommodate drivers transporting disabled or infirm residents. The second

row of spaces, with seven spots, ran parallel to the first and was separated from the

building only by the width of the driving lane between the two rows of spaces. No

suggestion has been made that Village Square’s parking configuration violated state or

local law, the Rehabilitation Act or the Americans with Disabilities Act, or HUD

regulations governing subsidized housing.

Singsime did not know about the customary use of the handicapped space and

began leaving his truck there. But soon an assistant property manager, Cardinal Capital

employee Dee Luebke, called him to the office and explained the established practice.

According to Singsime, when he asked Luebke where he should move his truck, she

pointed to the row of seven spaces and said to put it “on the other end” in the open spot

farthest from the entrance. Singsime began parking exclusively in that space under the

mistaken belief that parking spaces were permanently assigned.

That simple misunderstanding soon escalated into litigation. In the weeks following,

Singsime twice asked Luebke if he could have a closer parking space (she denies that these

conversations took place, but we accept Singsime’s version as we must on a motion for

summary judgment). Singsime did not request a specific space for his exclusive long-term

use. According to Singsime, Luebke responded, not by telling him that he must continue

parking where he was, but by reminding him that only short-term parking was allowed in

the first handicapped space. The two disagree about whether Luebke ever said explicitly

that Singsime could park anywhere else under the “first come, first served” policy—she

says yes, he says no. When Luebke purportedly said that she was powerless to change that

policy, Singsime telephoned her boss, Robert McCormick. That conversation was in late

October 2008, and at summary judgment Singsime did not contradict McCormick’s

deposition testimony that he told Singsime that the parking spaces were unassigned.

Singsime admits that spaces closer to the door typically were open when he sought to park,

but even after speaking with McCormick he continued parking in the farthest spot. His use

of that space did not change even after he slipped and fell in the parking lot in December

2008.

Meanwhile, before calling McCormick, Singsime already had contacted HUD. After

speaking with McCormick, he filed his administrative complaint asserting that the building

owner along with Cardinal Capital, Luebke, and McCormick had denied him a reasonable

accommodation in the form of an accessible parking space. HUD’s administrative charge of

discrimination does not assert that Singsime asked Luebke or McCormick to assign him a

particular parking space, nor does the HUD charge say that Singsime was unaware that he,
No. 12-1189 Page 4

like the other seventeen elderly or disabled tenants at Village Square, could park long-term

in any open space except for the handicapped spot closest to the door. Yet in the civil

complaint filed on Singsime’s behalf (and echoed by Singsime when he intervened in the

lawsuit), the United States alleges that Singsime had asked for an “assigned parking space

near the building entrance.” The suit claims that the defendants refused this purported

request and thus constructively denied a dwelling to Singsime on account of his handicap,

see 42 U.S.C. § 3604(f)(1)(A); discriminated against him in the terms of rental,

see id. § 3604(f)(2)(A); and refused a reasonable accommodation necessary to afford him

equal enjoyment of the apartment building, see id. § 3604(f)(3)(B). The United States sought

a declaration that the defendants had violated the FHA and an injunction prohibiting them

from discriminating on the basis of disability. Singsime apparently intervened to press also

for compensatory and punitive damages, but he did not add to, or alter, the existing claims.

After discovery the United States settled with the defendants. The Consent Order

acknowledges that the United States had sued “on behalf of” Singsime, that § 3612(o) was

the only basis for the Attorney General’s involvement, and that the settlement covered “all

claims asserted by the United States.” As noted, Singsime had not asserted any additional

claims—he simply wanted damages—but he did not object to the settlement. The

defendants did not admit liability but agreed to (1) formalize and distribute to residents a

“reasonable accommodation policy,” (2) change the Village Square parking policy to allow

any qualified individual with a disability to park long-term in either of the two

handicapped spaces, and (3) create additional handicapped spaces if necessary and

feasible. As a result of this settlement, Village Square designated three spaces for drivers

with “handicapped” plates or placards but had to reduce the overall number of parking

spaces to ten to accommodate the additional, wider handicapped spots. This modification

left only three parking spaces on the side of the lot closest to the building.

By its terms the Consent Order did not resolve Singsime’s intervention in the

lawsuit, so the defendants moved for summary judgment. They argued, first, that

Singsime’s pivotal factual allegation in the lawsuit—that he requested but was refused an

“assigned parking space near the building entrance”—lacked evidentiary support. Instead,

the defendants pointed out, the evidence at summary judgment established that Singsime

had asked only to park closer than the space farthest from the building’s entrance; that

accommodation already was satisfied under Village Square’s “first come, first served”

parking policy, which McCormick made clear to Singsime before he filed his administrative

complaint with HUD. The defendants further argued that, even if Singsime had produced

evidence that he requested an assigned space closer to the building entrance, that

accommodation would not have been reasonable at Village Square because the lot was

small and many other disabled residents would be disadvantaged. In granting summary

judgment for the defendants, the district court agreed with the defendants that Singsime
No. 12-1189 Page 5

could not establish a violation of the FHA because it was undisputed that he knew he could

park in the open spaces closer to the building entrance and had never asked that one of

those spaces be assigned to him for his exclusive use. The district court reasoned that

Village Square could not have refused Singsime the same “first come, first served” access to

the closest spots enjoyed by all residents but did not address the defendants’ contention

that, consistent with the FHA, they could have refused to assign Singsime a closer space if

he had asked for that accommodation.

Singsime, now proceeding pro se, insists that the district court erred in granting

summary judgment because material issues of fact remain. To prevail on an FHA

accommodation claim, a disabled plaintiff must establish that he requested and was denied

an accommodation that was both reasonable and necessary to afford him an equal

opportunity to use and enjoy his dwelling. See Wis. Cmty. Servs., Inc. v. City of Milwaukee,

465 F.3d 737, 749 (7th Cir. 2006) (en banc). Under our circuit’s burden-shifting framework, a

plaintiff cannot establish a prima facie case of discrimination without showing that the

accommodation he sought is reasonable on its face. Oconomowoc Residential Programs v. City

of Milwaukee, 300 F.3d 775, 783 (7th Cir. 2002).

We agree with the district court that no jury reasonably could find for Singsime on

the evidence presented at summary judgment, but we are puzzled that a lawsuit filed by

the United States to vindicate claims specific to Singsime continued to summary judgment

after an unopposed settlement of those very claims. This is not a situation where an

aggrieved party has intervened in litigation filed independently by the United States to

address a pattern or practice of disability discrimination, see 42 U.S.C. § 3614(a), (e), or

because the Secretary of HUD referred the matter for enforcement consideration,

see id. § 3614(b), (e). And neither is this lawsuit one where the United States has intervened

in an aggrieved party’s private-enforcement action to vindicate issues of “general public

importance.” See id. § 3613(a)(1)(A), (e). In all of those situations the United States and the

aggrieved party might have differing claims that one or the other should be free to settle

without prejudicing the right of the other to proceed. See United States v. Katz,

No. 10 Civ. 3335, 2011 WL 2175787, at *6 (S.D. N.Y. June 2, 2011); United States v. Koch,

No. 8:03CV406, 2006 WL 1720489, at *2 (D. Neb. June 20, 2006); Cohen v. Twp. of Cheltenham,

Pa., 174 F. Supp. 2d 307, 310 (E.D. Pa. 2001). Yet here the United States became a participant

only because Singsime exercised his right under § 3612(o)(1) to compel the Attorney

General to sue on his behalf, and as the complaint filed by the United States makes explicit,

the United States indeed was acting on Singsime’s behalf. When Singsime then intervened,

he did not expand on the claims brought by the United States; he adopted them. So it seems

odd that Singsime, after intervening, could both allow the United States to settle claims

pursued on his behalf and then, having failed to object to the settlement, not be bound by it.
No. 12-1189 Page 6

But this result is not questioned by the defendants, so we move to the merits. In his

appellate brief Singsime does not identify record evidence supporting his assertion that he

requested accommodation in the form of an assigned space closer than the spot he had

been using. His deposition testimony, construed in the most favorable light, establishes that

he asked only for leeway to park closer to the door, not for an assigned spot. Singsime

might have thought that Luebke should read more into his words, but a request for

accommodation must be specific enough to apprise the other party of the relief sought.

See Cassidy v. Detroit Edison Co., 138 F.3d 629, 635 (6th Cir. 1998) (holding that summary

judgment was warranted in case brought under ADA because plaintiff’s requested

accommodation was too vague); see also Good Shepherd Manor Foundation, Inc. v. City of

Momence, 323 F.3d 557, 561 (7th Cir. 2003) (noting that requirements for establishing failure

to accommodate are same under ADA and FHA); Oconomowoc Residential Programs, 300

F.3d at 783 (same). And since the evidence is undisputed that McCormick told Singsime he

was free to do exactly what he asked to do—park closer to the door—the defendants could

not have violated the FHA because they did not deny his requested accommodation.

It follows that, because Singsime’s lawsuit is unsupported factually, we need not

address the defendants’ further contention that forcing Village Square to give Singsime

exclusive use of a space close to the door would not have been a reasonable accommodation

under the FHA. Although HUD regulations interpreting the FHA assume that in some

circumstances a “first come, first served” parking policy must yield to accommodate

residents with impaired mobility, see 24 C.F.R. § 100.204(b)(2); United States v. Cal. Mobile

Home Park Mgmt. Co., 29 F.3d 1413, 1417 (9th Cir. 1994), the facts of this case are readily

distinguished from the example posed in the regulations of a 300-unit apartment complex

with 450 parking spaces. Village Square had twelve spaces for eighteen apartments which

can be occupied only by persons who are older or disabled, and Singsime has never

explained how preferring him with an assigned space at or near the door would not have

discriminated against other tenants given the ratio of disabled residents to close parking

spaces. Whether on these facts the FHA would have required giving Singsime an exclusive

space is a question for another day.

Finally, Singsime suggests that the district judge may have been prejudiced because

a former law clerk represented the United States in this action. It is “common knowledge in

the profession that former law clerks practice regularly before judges for whom they once

clerked,” In re Martinez-Catala, 129 F.3d 213, 221 (1st Cir. 1997), but Singsime’s concern is

particularly puzzling because the United States—and thus the judge’s former clerk—was

advocating for Singsime, not the defendants. At any rate, Singsime waived this argument

because he did not seek recusal or move to disqualify the judge in the district court,

see Szymanski v. Rite-Way Lawn Maintenance Co., Inc., 231 F.3d 360, 363 (7th Cir. 2000), and
No. 12-1189 Page 7

the record contains no evidence of actual bias, see Hoffman v. Caterpillar, Inc., 368 F.3d 709,

718 (7th Cir. 2004).

Accordingly, the judgment of the district court is AFFIRMED.