# United States Court **of Appeals**  **f or the Fifth Circuit** 

No. 20

- 50360 Summary Calendar

**Charles Mason,**
Plaintiff

— Appellant **,**

versus
**Integra Peak Management Incorporated; Manager Donna Overton Rosemond;**  **Manager Jeannie Prazak; Ronnie Rosemond,**
Defendants

— Appellees

**.**

Appeal from the United States District Court for the Western District of Texas USDC No. 6:18

- CV

- 326

Before **King, Smith,** and **Wilson,** Circuit Judges

**. Per Curiam**  **:** *

This case stems from Charles Mason ’ s eviction in 2015. Based on the eviction and surrounding events , Mason sued, asserting violations of the Fair

* Pursuant to **5th Cir cuit**  **R ule**  47.5, the court has determined that this opin

ion should not be published and is not precedent except under the limited circum stances set forth in **5th Cir cuit**  **R ule**  47.5.4. United States Court of Appeals Fifth Circ uit 

### FILED September 15, 2020 Lyle W. Cayce Clerk Case: 20-50360 Document: 00515564723 Page: 1 Date Filed: 09/15/2020No. 20

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2 Housing Act (“FHA”) , defamation, a nd various forms of fraud. 1 The defen

dants moved to dismiss under Federal Rule of Civil Procedure 12(b)(1) and (6)

. The district court granted the motion and dismissed with prejudice. We affirm the dismissal on Rule 12(b)(6)

. We review dismissals de novo

. Stratta v. Roe , 961 F.3d 340, 349 (5th Cir. 2020). We first note that dismissal for lack of subject matter jurisdiction is improper. Where the alleged jurisdictional defect is that a federal question has been implausibly pl ed, “the factual and jurisdictional issues are com

pletely intermeshed [and] the jurisdictional issues should be referred to the merits, for it is impossible to decide the one without the other. ” McBeath v. Inter

- Am. Citizens for Decency Comm. , 374 F.2d 3 59, 363 (5th Cir. 1967). The jurisdictional question of whether Mason plausibly pled discriminatory hous

ing is “completely intermeshed” with the merits of that claim. It is therefore better approached under Rule 12(b)(6). 2

For a Rule 12(b)(6) dismissal, we look to the allegations in the com

plaint and attached documents to determine whether the complaint contains

“ sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. ” Stratta v. Roe , 961 F.3d 340, 349 (5th Cir. 2020). A claim is plausible on its face if “ the pleaded factual content allows the court

1 As the district court correctly noted, pro se pleadings must be construed liberally. Brown v. Taylor , 911 F.3d 235, 242 (5th Cir. 2018) (per curiam)

. Mason ’ s complaint lists potential FHA violations (e.g. treating him differently and retaliation) as well as fraud and sending false information to a government agency

. The district court con strued the com

plaint to plead FH A, defamation, and fraud cause s of action. We agree.

2 See also Williamson v. Tucker , 645 F.2d 404, 415 (5th Cir. May 1981) (“ Where the defendant ’ s challenge to the court ’ s jurisdiction is also a challenge to the existence of a federal cause of action, th e proper course of action for the district court (assuming that the plaintiff ’ s federal claim is not immaterial and made solely for the purpose of obtaining federal jurisdiction and is not insubstantial and frivolous) is to find that jurisdiction exists

an d deal with the objection as a direct attack on the merits of the plaintiff ’ s case. ”). Case: 20-50360 Document: 00515564723 Page: 2 Date Filed: 09/15/2020No. 20

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3 to draw the reasonable inference that the defendant is liable for the mis

conduct alleged. ” Id. at 349

− 50 (quotations omitted).

The FHA outlaws discrimina ting “ against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection with such dwelling, because of a handi

cap. ” 42 U.S.C. § 3604(f)(2) (2018)

. A violation can be e stab lished by proof of discriminatory intent or discriminatory effect. Simms v. First Gibraltar Bank , 83 F.3d 1546, 1555 (5th Cir. 1996). In either case, one element of the prima facie case is a causal link between the alleged dis crimination and the al leged disability. See Inclusive Cmtys. Project, Inc. v. Lincoln Prop. Co. , 920 F.3d 890, 908 (5th Cir. 2019), cert. denied , 140 S. Ct. 2506 (2020) (dis

criminatory effect); Providence Behavioral Health v. Grant Rd. Pub. Util. Dist. , 902 F.3d 448, 457 (5th Cir. 2018) (discriminatory intent)

. Here, the alleged facts are insufficient to establish causality. Though Mason has made the conclusory statement that he was treated differently from non

- handicap tenants, he has not alleged specific facts showing that any different treatment was because of his disability. Therefore, the pleadings are insuffi cient to establish the claim.

The FHA also outlaws intimidating a person from pursuing a n FHA claim or encouraging others to do the same

. 42 U.S.C. § 3617 (2018). As above , a plaintiff must show a connection between the protected activity and any adverse action. See Hood v. Pope , 627 F. App ’ x 295, 300 (5th Cir. 2015) (per curiam). Mason has failed to allege any connection between his eviction

or an y other adverse actions and any protected conduct in which he partook. 3

3 Once having disposed of that claim under Rule 12(b)(6), it was within the district court’s discretion whether to exercise supplemental jurisdiction under any state law claims. 28 U.S.C. § 1367(c)(3) (2018). The district court went on to grant the motion to dismiss Case: 20-50360 Document: 00515564723 Page: 3 Date Filed: 09/15/2020No. 20

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4 To succeed on a defamation claim in Texas , a private plaintiff must show “ (1) the publication of a false statement of fact to a third party, (2) that was defamatory concerning the plaintiff, (3) with [negligence] , and (4) dam

ages. ” In re Lipsky , 460 S.W.3d 579, 593 (Tex. 2015). Mason alleges the defendants defamed him in their co mmun ications with HUD. But as the dis

trict court correctly point ed out, Mason has not made any plausible alle ga

tions that th o se communications were false. He also alleges that Donna Over ton Rosemond sent a fax falsely claiming she had filed police re ports based on threats Mason made to her. Mason has plausibly alleged that fax is false based on evidence showing no complaints had been filed. Nonetheless, Mason has not plausibly alleged any damages resulting from the fax

. 4 There

fore, he has not plau sibly made a prima facie case for defamation

. Finally, when alleging fraud, a plaintiff must state the circumstances

“ with particularity. ” **Fed. R. Civ. P**

**.** 9 (b) . Mason ’ s allegations of falsified doc u ments, false charges, and other fraudulent activity are only conclusory. They are not plausible, let alone pleaded with the particularity required. There fore, dismissal under Rule 12(b)(6) is appropriate.

**AFFIRMED.**

on these claims under Rule 12(b)(6), so we assume it chose to take jurisdiction.

4 Nor would such a statement be defamation per se , given that fals ely claiming to have filed a police report does not unambiguously impute criminal conduct to the defamed party

. Se e Fiber Sy s. Int ’l , Inc. v. Roehrs , 470 F.3d 1150, 1161 (5th Cir. 2006) (applying Texas law)

. Case: 20-50360 Document: 00515564723 Page: 4 Date Filed: 09/15/2020