UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

MICAH FIALKA-FELDMAN, 

 

 Plaintiff, 

 Case No. 2:08-cv-14922-PJD-VMM 

v. Hon. Patrick J. Duggan 

OAKLAND UNIVERSITY BOARD OF TRUSTEES, 

 

 Defendant. 

________________________________________________________________________ 

MICHIGAN PROTECTION & BUTZEL LONG 

ADVOCACY SERVICE, INC. By: Robert A. Boonin (P38172) 

By: Chris E. Davis (P52159) 350 S. Main Street, Suite 300 

 Gabrielle S. Frampton (P59499) Ann Arbor, MI 48104 

29200 Vassar Blvd., Suite 200 (734) 995-3110 

Livonia, MI 48152 Attorneys for Defendant 

(248) 473-2990 boonin@butzel.com

Attorneys for Plaintiff 

Email: cdavis@mpas.org

Email: gframpt@mpas.org 

________________________________________________________________________ 

PLAINTIFF’S REPLY BRIEF IN SUPPORT OF HIS MOTION 

 FOR LEAVE TO FILE AN AMENDED COMPLAINT 

The Plaintiff in reply to defendant’s response brief states: 

1. Fair Housing Act Claims, Counts I & II. 

 The Court in its order of February 5, 2009, dismissed the Plaintiff’s Fair Housing 

Act claims against Oakland University pursuant to the 11th Amendment. Plaintiff in the 

amended complaint seeks to sue the three newly named defendants, Gary D. Russi, Mary 

Beth Snyder, and Lionel Maten, in their official capacity under the Fair Housing Act in 

Counts I & II. 
The defendant’s claim the amended complaint is ambiguous is without merit. The 

amended complaint states that Count I is specifically against these three new defendants. 

See ¶ 51. Additionally, the amended complaint further states Count II is specifically 

against these three new defendants. See ¶ 56. 

2. Reasonable Accommodation, Counts I & IV. 

The Court previously denied plaintiff’s motion for a preliminary injunction for 

Oakland University’s failure to provide a reasonable accommodation pursuant to the Fair 

Housing Act. That decision was based on the Defendant’s 11th Amendment immunity. 

See, February 5, 2009, opinion pp. 9-12, Docket Item # 12. The Court’s opinion 

discussed the eventual likelihood of success of Plaintiff’s reasonable accommodation 

claim and determined the claims were not likely to succeed. Id. at pp. 13–16 relying on 

Schanz v. Village Apartments, 998 F. Supp. 784. (E.D. Mich. 1998). However, the 

Court’s opinion is based on the information it had before it at the time. This litigation is 

in its early stages. It is impossible to know the eventual outcome, particularly when there 

has been no discovery in the matter. The opinion given by the Court is not a final 

decision on the actual merits of the reasonable accommodation claims. The defendant’s 

argument, that plaintiff’s case is futile, is therefore without merit. 

3. Specific Allegations Relating to Proposed Defendants Russi and Maten 

Finally, there are specific allegations concerning the responsibility and the 

decision making authority of proposed defendants Gary D. Russi and Lionel Maten and 

how their authority relates to this case. Gary D. Russi as President of the University has 

decision making authority regarding the rules and policies of the university and has 

maintained the housing policy that is the issue in this case, without an accommodation 

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being provided to the plaintiff. See Proposed Amended Complaint, ¶¶ 15, 34, 38, 51 and 

56. Additionally, as stated in the Proposed Amended Complaint Lionel Maten is 

responsible for the university’s on-campus housing facilities and for administration and 

enforcement of its housing policies. Id. ¶¶ 17, 51 and 56. 

Courts are clear that bringing an action against a state official merely to test 

whether a policy or statute violates federal law or is constitutional is not the purpose 

behind the Young Doctrine. Children’s Healthcare is a Legal Duty, Inc. v. Deters, 92 

F3d 1412 (6th Cir. 1996), 1414-1416, citing In re Young, 209 U.S. 123 (1908), 157; 28 

S.Ct. 441, 452-53. There must be some action enforcing the statute or policy. All three 

officials named are involved in maintaining and enforcing the policy in question. In the 

present case, the officials have enforced the housing policy and denied the plaintiff the 

requested accommodation. 

 

CONCLUSION 

Based on the motion and brief previously filed and on the foregoing, Plaintiff 

respectfully requests this Honorable Court to grant the Plaintiff’s Motion for Leave to 

File an Amended Complaint and order the issuance of a Summons for each of the new 

defendants, Gary D. Russi, Mary Beth Snyder, and Lionel Maten. 

Respectfully submitted, 

Dated: March 18, 2009 s/Chris E. Davis

MICHIGAN PROTECTION & 

ADVOCACY SERVICE, INC. 

By: Chris E. Davis 

29200 Vassar Blvd., Suite 200 

Livonia, MI 48152 

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Attorneys for Plaintiff

(248) 473-2990 

cdavis@mpas.org 

P52159 

 CERTIFICATE OF SERVICE

I hereby certify that on March 18, 2009, I electronically filed the foregoing paper with the 

Clerk of the Court using the ECF system which will send notification of such filing to the

following: Robert A. Boonin. 

s/Chris E. Davis 

MICHIGAN PROTECTION & 

ADVOCACY SERVICE, INC. 

Attorney for Plaintiffs 

29200 Vassar Blvd., Suite 200 

Livonia, MI 48152 

Phone: (248) 473-2990 

Fax: (248) 473-4104 

E-mail: cdavis@mpas.org

P52159 

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