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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PANAMA CITY DIVISION

CYNTHIA MARIE LAWSON, et al., 

Plaintiffs,

v. Case No. 5:11cv119/RS/CJK

CRYSTAL KELLY, et al.,

Defendants.

__________________________________________________________________

ORDER and

REPORT AND RECOMMENDATION

This cause is before the court upon plaintiffs’ civil rights complaint (doc. 1),

filed pursuant to 42 U.S.C. § 1983, and joint motion for leave to proceed in forma

pauperis (doc. 7). Good cause having been shown, leave to proceed in forma

pauperis will be granted. Upon review of plaintiffs’ complaint, however, the court

concludes plaintiffs have not presented and cannot present an actionable claim under

§ 1983. Dismissal of this case is therefore warranted. 

Because plaintiffs are proceeding in forma pauperis, the court may dismiss the

case if satisfied that the action is “(i) frivolous or malicious; (ii) fails to state a claim

on which relief may be granted; or (iii) seeks monetary relief against a defendant who

is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B). The court must read

plaintiffs’ pro se allegations in a liberal fashion. See Haines v. Kerner, 404 U.S. 519,

92 S. Ct. 594, 30 L. Ed. 2d 652 (1972). Dismissals for failure to state a claim are

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governed by the same standard as FEDERAL RULE OFCIVIL PROCEDURE 12(b)(6). See

Mitchell v. Farcass, 112 F.3d 1483, 1485 (11th Cir. 1997). In determining whether

the complaint states a claim upon which relief may be granted, the court accepts all

factual allegations in the complaint as true and evaluates all inferences derived from

those facts in the light most favorable to the plaintiffs. See Hunnings v. Texaco, Inc.,

29 F.3d 1480, 1483 (11th Cir. 1994). The complaint may be dismissed if the facts as

pleaded do not state a claim to relief that is plausible on its face. See Bell Atl. Corp.

v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 1968-69, 1974, 167 L. Ed. 2d 929 (2007)

(retiring the negatively-glossed “no set offacts” language previously used to describe

the motion to dismiss standard and determining that because plaintiffs had “not

nudged their claims across the line from conceivable to plausible, their complaint

must be dismissed” for failure to state a claim). A complaint is also subject to

dismissal under Rule 12(b)(6) when its allegations—on their face—show that an

affirmative defense bars recovery on the claim. See Marsh v. Butler Cnty., Ala., 268

F.3d 1014, 1022 (11th Cir. 2001). 

Plaintiffs’ complaint names four defendants, all of whom are private parties:

(1) Crystal Kelly (“Ms. Kelly”), a landlord; (2) Dan Kelly (“Mr. Kelly”), a

neighboring tenant and the landlord’s brother; (3) Lucile J. Wasson; and (4) an

unnamed maintenance worker and groundskeeper. (Doc. 1, 2-3) Plaintiff Dyson

alleges permanent disability, stating that he suffers from a rare genetic disorder. 

(Doc. 1, 3) Dyson contends Ms. Kelly discriminated against him by threatening to

have his service dog removed from the premises and put down. Ms. Kelly, Dyson

asserts, also refused to refund prepaid rent and deposit monies after plaintiffs

discovered conditions making the premises unhabitable. (Doc. 1, 3, 5) According

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to plaintiffs, Mr. Kelly subsequently unhooked and tampered with their cable

connection. (Doc. 1, 3) Finally, plaintiffs contend that the unnamed maintenance

worker harassed them by piling up sticks and lawn trash outside the entrances,

threatening Dyson’s service dog, and making lewd and lasciviousremarks to Dyson’s

caretaker. (Doc. 1, 3) The complaint does not discuss how Ms. Wasson violated

plaintiffs’ rights under the Constitution, laws, or treaties of the United States. 

Plaintiffs ultimately assert violations of their rights under the Civil Rights Acts of

1964 and 1991, including Title VII of the 1964 law, the Americans with Disabilities

Act, the Fair Housing Act and the National Housing Act, the Occupational Safety and

Health Act, and the Genetic Information Nondiscrimination Act of 2008. (Doc. 1, 4)

In order to prevail in a civil rights action under § 1983, a plaintiff must

establish that a person acting under color of state law deprived her of a right,

privilege, or immunity secured by the Constitution or federal law. See Griffin v. City

of Opa-Locka, 261 F.3d 1295, 1303 (11th Cir. 2001). “A person acts under color of

state law when he acts with authority possessed by virtue of his employment with the

state.” Id. at 1303. “[T]he under-color-of-state-law element of § 1983 excludesfrom

its reach merely private conduct, no matter how discriminatory or wrongful.” Am.

Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50, 119 S. Ct. 977, 985, 143 L. Ed. 2d

130 (1999) (internal quotations omitted). Only in rare circumstances may a private

party be viewed as a state actor for § 1983 purposes:

[T]o hold that private parties . . . are State actors, th[e] court must

conclude that one of the following three conditionsis met: (1) the State

has coerced or at least significantly encouraged the action alleged to

violate the Constitution (State compulsion test); (2) the private parties

performed a public function that was traditionally the exclusive

prerogative of the State (public function test); or (3) the State had so far

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insinuated itself into a position of interdependence with the private

partiesthat it was a joint participant in the enterprise (nexus/joint action

test). 

Rayburn ex rel. Rayburn v. Hogue, 241 F.3d 1341, 1347 (11th Cir. 2001) (internal

quotations omitted). In the instant case, even liberally construing plaintiffs’

allegations, they do not remotely suggest the kind of action that would subject any of

these private party defendants to § 1983 liability as a “state actor.” To the extent

plaintiffs assert violations of their civil rights, plaintiffs’ § 1983 claims must therefore

be dismissed.

Plaintiffs also allege violations of the Americans with Disabilities Act

(“ADA”), 42 U.S.C. §§ 12101-213, under which “no qualified individual with a

disability shall, by reason of such disability, be excluded from participation in or be

denied the benefits of the services, programs, or activities of a public entity, or be

subjected to discrimination by any such entity.” 42 U.S.C. § 12132. Here, plaintiffs

fail to state a claim of discrimination under § 12132 because they fail to allege that

any defendant is a “public entity.” See Edison v. Douberly, 604 F.3d 1307, 1308

(11th Cir. 2010) (“Only public entities are liable for violations of Title II of the

ADA.”); Hawkins v. Hamlet, Ltd., 296 F. App’x 918, 919 (11th Cir. 2008) (“Since

Hawkins was unable adequately to allege that Hamlet is a public entity . . . the district

court was required to dismiss his ADA claim.”). 

Pursuant to 42 U.S.C. § 12182(a), “[n]o individual shall be discriminated

against on the basis of disability in the full and equal enjoyment of the goods,

services, facilities, privileges, advantages, or accommodations of any place of public

accommodation by any person who owns, leases (or leases to), or operates a place of

public accommodation.” Plaintiffs also fail to state a claim of discrimination under

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§ 12182 of the ADA because they do not allege that the apartment complex is “a

place of public accommodation.” Moreover, fatal to both claims is that plaintiffs fail

to allege they were discriminated against because of plaintiff Dyson’s disability. See

42 U.S.C. §§ 12132, 12182. Rather, plaintiffs assert they were harassed and denied

their rent and security deposits because they raised complaints about the living

conditions. (Doc. 1, 3, 5) Accordingly, plaintiffs’ discrimination claims under the

ADA must be dismissed.

The ADA also contains an anti-retaliation provision, which providesthat “[n]o

person shall discriminate against any individual because such individual has opposed

any act or practice made unlawful by this chapter or because such individual made

a charge, testified, assisted, or participated in any manner in an investigation,

proceeding, or hearing under this chapter.” 42 U.S.C. § 12203(a). The ADA’s antiretaliation provision is similar to Title VII’s prohibition on retaliation. See Stewart

v. Happy Herman’s Cheshire Bridge, Inc., 117 F.3d 1278, 1287 (11th Cir. 1997). 

Accordingly, this court assesses retaliation claims asserted under the ADA under the

same framework used for Title VII retaliation claims. See id. “To establish a prima

facie case of retaliation, a plaintiff must show that he engaged in statutorily protected

conduct, he suffered adverse action, and there is a causal connection between the

protected conduct and the adverse action.” Smith v. BellSouth Telecomms., Inc., 273

F.3d 1303, 1314 (11th Cir. 2001). To the extent plaintiffs attempt to state a

retaliation claim under the ADA, the claim must be dismissed because plaintiffs do

not allege they were retaliated against because they reported discrimination on the

basis of disability. Instead, plaintiffs state they were retaliated against because they

complained of the living conditions. (Doc. 1, 3, 5)

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For similar reasons, plaintiffs’ Fair Housing Act (“FHA”) claims do not fare

any better. The FHA makes it unlawful to “discriminate against any person in terms,

conditions, or privileges of sale or rental of a dwelling, or in the provision ofservices

or facilities in connection with such dwelling, because of a handicap.” 42 U.S.C. §

3604(f)(2)(A). Plaintiffs, however, do not allege that defendants declined to rent

them a dwelling. Additionally, discrimination under the FHA includes “a refusal to

make reasonable accommodationsin rules, policies, practices, orservices, when such

accommodations may be necessary to afford [the handicapped] person equal

opportunity to use and enjoy a dwelling.” 42 U.S.C. § 3604(f)(3)(B). Plaintiffs do

not maintain that defendants refused to make reasonable accommodations, either. 

The FHA also makes it “unlawful to coerce, intimidate, threaten, or interfere

with any person in the exercise or enjoyment of, or on account of his having exercised

or enjoyed . . . any right granted or protected by” § 3604. 42 U.S.C. § 3617. 

Plaintiffs, in effect, allege that defendants intimidated and threatened plaintiff

Dyson’s service dog, in violation of 42 U.S.C. § 3617. But plaintiffs do not allege

the causal relationship necessary to maintain a retaliation claim under 42 U.S.C. §

3617. In other words, plaintiffs do not contend that Ms. Kelly threatened the service

dog in retaliation for Dyson’s exercise or enjoyment of a right protected by 42 U.S.C.

§ 3604. Rather, plaintiffs merely assert that defendants retaliated against them

because they took issue with the habitability of the rental premises. (Doc. 1, 3, 5)

Accordingly, any retaliation claim plaintiffs might have raised under the FHA must

be dismissed.

To the extent plaintiffs rely on the Occupational Safety and Health Act

(“OSHA”) to assert a ground for relief, these claims, too, must be dismissed. OSHA

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requires that each employer “‘furnish to each of his employees employment and a

place of employment which are free from recognized hazards that are causing or are

likely to cause death or serious physical harm to his employees . . . .’” See Cent. of

Ga. R.R. Co. v. Occupational Safety and Health Review Comm’n, 576 F.2d 620, 621

(5th Cir. 1978) (quoting 29 U.S.C. § 654(a)). OSHA also directs each employer to

“comply with occupational safety and health standards promulgated under” the Act. 

Id. Plaintiffs, however, do not establish that defendants are employers or that the

apartment dwelling is a place of employment. On the contrary, plaintiffs characterize

defendant Crystal Kelly as a “landlord” and refer to her defendant brother, Dan Kelly,

as a “neighboring tenant.” (Doc. 1, 3) As a result, plaintiffs cannot maintain a

successful cause of action under OSHA.

Likewise, plaintiffs fail to demonstrate the applicability of the Genetic

Information Nondiscrimination Act (“GINA”), which prohibits discrimination on the

basis of genetic information in the provision of health insurance or employment. See

42 U.S.C. § 2000ff1. Beyond listing GINA as the basis for one of their claims,

moreover, plaintiffs allege no facts in support of a GINA action—there are no

allegations that any defendant asked for or obtained plaintiff Dyson’s genetic

information or, even assuming arguendo that such information was made available

to defendants, that such information was used to discriminate against plaintiff. 

Accordingly, the court will dismiss plaintiffs’ claims under GINA.

Finally, the court must dismiss plaintiffs’ claims brought under the National

Housing Act, which prohibits discrimination on account of sex in the extension of

mortgage assistance. See 12 U.S.C. § 1735f-5(a). Plaintiffs merely list the National

Housing Act as the basis for one of their claims, but clearly fail to set forth factual

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allegations such as might implicate the Act or any of its provisions. For these

reasons, all of plaintiffs claims must be dismissed. 

“Ordinarily, a party must be given at least one opportunity to amend before the

district court dismisses the complaint.” Corsello v. Lincare, Inc., 428 F.3d 1008,

1014 (11th Cir. 2005). “A district court need not, however, allow an amendment (1)

where there has been undue delay, bad faith, dilatory motive, or repeated failure to

cure deficiencies by amendments previously allowed; (2) where allowing amendment

would cause undue prejudice to the opposing party; or (3) where amendment would

be futile.” Bryant v. Dupree, 252 F.3d 1161, 1163 (11th Cir. 2001). In this case,

amendment would be futile; dismissal is thus appropriate.

To the extent plaintiff’s pro se amended complaint may be liberally construed

as raising health and safety violations under state law, the court lacks jurisdiction

over such actions, as plaintiff fails to establish the requirements for diversity

jurisdiction, or any other basis for this court’s jurisdiction. See 28 U.S.C. § 1332. 

Although a district court may, in its discretion, exercise supplemental jurisdiction

over plaintiff’s state law claims pursuant to 28 U.S.C. § 1367(c)(3), the undersigned

recommends that the court decline to exercise such jurisdiction in this instance. See

United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726, 86 S. Ct. 1130, 1139, 16

L. Ed. 2d 218 (1966); Raney v. Allstate Ins. Co., 370 F.3d 1086, 1089 (11th Cir.

2004) (“We have encouraged district courts to dismiss any remaining state claims

when, as here, the federal claims have been dismissed prior to trial.”). 

Accordingly, it is ORDERED:

Plaintiffs’ motion to proceed in forma pauperis (doc. 7) is GRANTED.

And it is respectfully RECOMMENDED:

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1. That this action be DISMISSED as follows:

a. Plaintiffs’ federal claims be DISMISSED WITH PREJUDICE under 

28 U.S.C. § 1915(e)(2)(B)(ii).

b. Plaintiffs’ state law claims be DISMISSED WITHOUT PREJUDICE 

to plaintiffs filing them in the appropriate state court.

2. That the clerk be directed to close the file.

At Pensacola, Florida this 13th day of October, 2011.

/s/Charles J. Kahn, Jr.

CHARLES J. KAHN, JR.

UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

Any objections to these proposed findings and recommendations must be filed within

fourteen (14) days after being served a copy hereof. Any different deadline that may

appear on the electronic docket is for the court’s internal use only, and does not

control. A copy of any objections shall be served upon any other parties. Failure to

object may limit the scope of appellate review of factual findings. See 28 U.S.C. §

636; United States v. Roberts, 858 F.2d 698, 701 (11th Cir. 1988).

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