1 

IN THE UNITED STATES DISTRICT COURT FOR THE 

 SOUTHERN DISTRICT OF ALABAMA 

 SOUTHERN DIVISION 

 

ERNEST BRAGGS : 

Plaintiff, : 

vs. : CIVIL ACTION 10-00058-WS-C 

KEITH REALTY MIDTOWN/ : 

CORPORATE OVERSEER, et al., 

 : 

Defendants. 

REPORT AND RECOMMENDATION

Plaintiff, proceeding pro se and in forma pauperis, filed a complaint under the Fair 

Housing Act, 42 U.S.C. ' 3601, et seq. ; the Americans with Disabilities Act, 42 U.S.C. ' 12101, 

et seq.; and 42 U.S.C. ' 1983. This action has been referred to the undersigned pursuant to 28 

U.S.C. ' 636(b)(1)(B) and is before the Court for an initial screening pursuant to 28 U.S.C. '

1915. 

I. Proceedings. 

On February 2, 2010, Plaintiff filed a complaint and a motion for leave to proceed in 

forma pauperis in this Court. (Doc. 1, Complaint; Doc. 2, IFP motion). On February 3, 2010, 

Plaintiff filed an amended motion for leave to proceed in forma pauperis (Doc. 3), which the 

Court granted on February 8, 2010. (Doc. 4, Order). 

Following a preliminary screening of Plaintiff’s complaint under 28 U.S.C. § 1915, the 

Court issued an order on May 14, 2010, informing Plaintiff that his complaint was deficient 

under the standards of Ashcroft v. Iqbal, __ U.S. __, 129 S. Ct. 1937, 1949, 173 L. Ed. 2d 868 

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(2009) and Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). (Doc. 9, Order). The 

Court articulated the deficiencies in Plaintiff’s complaint in detail and extended Plaintiff an 

opportunity to amend his complaint on or before June 4, 2010. The Court warned Plaintiff that 

failure to file an amended complaint would result in a recommendation of dismissal of the 

complaint for failure to state a claim upon which relief could be granted. (Id.). 

On May 21, 2010, Plaintiff renewed an earlier request for appointment of counsel, which 

the Court denied on May 24, 2010. (Docs. 10, 11). To date, Plaintiff has not amended his 

complaint. 

For the reasons set forth below, the Court finds that Plaintiff’s complaint is due to be 

dismissed under 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim upon which relief could 

be granted. 

II. Factual Allegations. 

In his complaint, Plaintiff states that he is “a black disabled veteran with mental and 

physical disabilities.” (Doc. 1 at 2). He sues Keith Realty Midtown/Corporate Overseer 

(“Keith Realty”), Robert Keith, Nofio Pecoraro, Susan Milling, and Dauphin Realty, Inc., for 

federal law violations arising out of his rental of an apartment from Defendant Pecoraro. (Doc. 

1 at 1). 

According to Plaintiff, on May 8, 2006, he leased a garage apartment located at 10 

Kenneth St., Mobile, Alabama, from the Sims Family Limited Partnership (“the Sims family”). 

(Doc. 1 at 2). Under the terms of his lease agreement with the Sims family, Plaintiff was to pay 

$400 a month in rent, with the cost of water included. (Id.). 

On January 3, 2008, Plaintiff received a letter from Defendant Susan Milling, a real 

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estate agent with Dauphin Realty, informing him that the Sims family was selling the property. 

(Id.). Milling assured Plaintiff that, although the property was being sold, “everything would 

remain the same concerning [Plaintiff=s] rent and water included in the rent.” (Id.). 

To the contrary, however, in February, 2008, Plaintiff=s water was cut off. (Id. at 3). A 

representative from the water company appeared at the apartment, and Plaintiff had to “sign[] 

document[s]” to have the water turned back on. (Id.). 

Plaintiff notified Nofio Pecoraro, the new landlord and owner of the property, that he had 

been told by Susan Milling at Dauphin Realty “that everything would remain the same” after 

Pecoraro acquired the property, that is, that the cost of water would be included in Plaintiff’s 

rent. (Id.). However, Pecoraro insisted that Plaintiff pay his portion of the monthly water bill, 

just “like everybody else.” (Id.). On March 4, 2008, “under duress,” Plaintiff signed a new 

lease on his garage apartment with Pecoraro and Keith Realty agreeing to pay for utilities, and he 

has paid for his own water for two years. (Id. at 2-3, 10, Lease Agreement). 

Plaintiff further alleges that, on December 24, 2009, his telephone and stereo player 

“burned up while hooked up to the wall” due to negligent wiring in the apartment. (Id. at 3-4). 

Pecoraro refused to pay Plaintiff for his damaged electronics, telling Plaintiff that he should have 

had a surge protector. (Id. at 4). 

Also, on January 26, 2010, Plaintiff wrote a letter to Pecoraro and Keith Realty informing 

them, among other things, that his neighbors were intentionally tearing up his garden in front of 

the apartment and “harassing [him] with [their] cars and trucks speeding in and out of the yard.” 

(Id.). Pecoraro promised to erect a barricade to protect Plaintiff’s garden, but he never did so. 

(Id.). 

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Plaintiff states that Defendants’ conduct, as alleged, violated the Fair Housing Act, the 

Americans with Disabilities Act, and 42 U.S.C. § 1983, for which he seeks compensatory 

damages from Pecoraro and Keith Realty for the portion of the water bill that he has paid for two 

years, as well as injunctive relief to stop Pecoraro and Keith Realty from discriminating against 

him, to stop his neighbors from intentionally harassing him in relation to his garden, and to 

require Keith Realty and Pecoraro to include the cost of water in his rent.1 (Doc. 1 at 4). 

III. Standards of Review Under 28 U.S.C. ' 1915(e)(2)(B). 

Because Plaintiff is proceeding in forma pauperis, the Court is required to screen 

Plaintiff=s complaint under 28 U.S.C. ' 1915(e)(2)(B).2 Troville v. Venz, 303 F.3d 1256, 1260 

(11th Cir. 2002) (applying § 1915(e) to non-prisoner actions). Under ' 1915(e)(2)(B)(i), a 

claim may be dismissed as “frivolous where it lacks an arguable basis either in law or in fact.” 

Neitzke v. Williams, 490 U.S. 319, 325 (1989). 

A claim is frivolous as a matter of law where, inter alia, the defendants are immune from 

suit, id. at 327, the claim seeks to enforce a right which clearly does not exist, id., or there is an 

affirmative defense which would defeat the claim, such as the statute of limitations, res judicata, 

collateral estoppel, or absolute immunity. Clark v. Georgia Pardons & Paroles Bd., 915 F.2d 

 

 1 The Court notes that Plaintiff seeks no relief from any Defendant other than Pecoraro and 

Keith Realty. (Doc. 1 at 4). Moreover, although Plaintiff lists Robert Keith in the caption of 

his complaint, he makes no allegations whatsoever against this Defendant. (Doc. 1). Thus, 

Plaintiff’s claims against Robert Keith are due to be dismissed for this reason as well. 

 2 The predecessor to this section is 28 U.S.C. ' 1915(d). Although Congress made many 

substantive changes to ' 1915(d) when it enacted 28 U.S.C. ' 1915(b)(2)(B), the frivolity and 

the failure to state a claim analysis contained in Neitzke v. Williams, 490 U.S. 319 (1989), was 

unaltered. Bilal v. Driver, 251 F.3d 1346, 1349 (11th Cir. 2001). However, dismissal under '

1915(e)(2)(B) is now mandatory. Bilal, 251 F.3d at 1348. 

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636, 640 n.2 (11th Cir. 1990). Judges are accorded “not only the authority to dismiss [as 

frivolous] a claim based on an indisputably meritless legal theory, but also the unusual power to 

pierce the veil of the complaint=s factual allegations and dismiss those claims whose factual 

contentions are clearly baseless.” Neitzke, 490 U.S. at 327. 

Moreover, a complaint may be dismissed under 28 U.S.C. ' 1915(e)(2)(B)(ii) for failure 

to state a claim upon which relief may be granted. See Mitchell v. Farcass, 112 F.3d 1483, 1490 

(11th Cir. 1997) (noting that the language of § 1915(e)(2)(B)(ii) tracks the language of Federal 

Rule of Civil Procedure 12(b)(6)). To avoid dismissal for failure to state a claim upon which 

relief can be granted, the allegations must show plausibility. Bell Atlantic Corp. v. Twombly, 

550 U.S. 544, 547 (2007) (“plaintiffs [must] nudge[] their claims across the line from 

conceivable to plausible....”). 

“A claim has facial plausibility when the plaintiff pleads factual content that allows the 

court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” 

Ashcroft v. Iqbal, __ U.S. __, 129 S. Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009). That is, 

“[f]actual allegations must be enough to raise a right to relief above the speculative level” and 

must be a “plain statement possess[ing] enough heft to sho[w] that the pleader is entitled to 

relief.” Twombly, 550 U.S. at 555, 557 (citations and internal quotation marks omitted). 

“Threadbare recitals of the elements of a cause of action, supported by mere conclusory 

statements, do not suffice.” Iqbal, __ U.S. at __, 129 S. Ct. at 1949. “[T]he pleading standard 

Rule 8 announces does not require detailed factual allegations, but it demands more than an 

unadorned, the-defendant-unlawfully-harmed -me accusation.” Iqbal, 129 S. Ct. at 1949 

(quoting Twombly, 550 U.S. at 555) (internal quotation marks omitted). 

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In determining whether a complaint states a claim upon which relief can be granted, the 

Court takes the plaintiff=s allegations as true. Jones v. Bock, 549 U.S. 199, 215 (2007). A pro 

se litigant=s allegations are given a liberal construction by the Court. See Haines v. Kerner, 404 

U.S. 519, 520 (1972) (the allegations of a pro se plaintiff are held to “less stringent standards 

than formal pleadings drafted by lawyers.”); GJR Invs., Inc. v. County of Escambia, Fla., 132 

F.3d 1359, 1369 (11th Cir. 1998) (“Courts do and should show a leniency to pro se litigants....”). 

“Yet even in the case of pro se litigants this leniency does not give a court license to 

serve as de facto counsel for a party . . . or to rewrite an otherwise deficient pleading in order to 

sustain an action....” GJR Invs., 132 F.3d at 1369. A pro se litigant “is subject to the relevant 

law and rules of court, including the Federal Rules of Civil Procedure.” Moon v. Newsome, 

863 F.2d 835, 837 (11th Cir. 1989). 

Therefore, with respect to screening pursuant to 28 U.S.C. ' 1915(e)(2)(B)(ii) for failure 

to state a claim, a pro se litigant=s allegations must meet the Twombly standard of plausibility. 

See Hall v. Secretary for Dep=t of Corrs., 304 Fed. Appx. 848, 849 (11th Cir. 2008) 

(unpublished)3

 (applying Twombly standard to pro se prisoner complaint screened pursuant to 

§ 1915(e)(2)(B)(ii)); and Cobb v. Florida, 293 Fed. Appx. 708, 709 (11th Cir. 2008) 

(unpublished) (liberally construing pro se prisoner=s pleadings and applying Twombly standard 

in screening pursuant to ' 1915A(b)(1)). 

IV. Analysis. 

 

 3 “Pursuant to Eleventh Circuit Rule 36-2, unpublished opinions are not considered binding 

precedent, but may be cited as persuasive authority.” Lanier Constr., Inc. v. Carbone Props. of 

Mobile, LLC, 253 Fed. Appx. 861, 865 n.5 (11th Cir. 2007) (unpublished). 

As discussed above, in his complaint, Plaintiff alleges that Defendants violated the Fair 

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Housing Act, the Americans with Disabilities Act, and 42 U.S.C. ' 1983, in connection with his 

rental of a garage apartment from Defendant Pecoraro. Specifically, Plaintiff claims that: (1) 

Susan Milling and Dauphin Realty violated the aforementioned statutes by falsely stating that 

“everything would remain the same” after Plaintiff’s garage apartment was sold to a new 

landlord, i.e., Plaintiff’s water bill would still be included in his rent; (2) Pecoraro and Keith 

Realty violated the aforementioned statutes by requiring Plaintiff to sign a new lease which 

obligated Plaintiff to pay his own water bill; and (3) Pecoraro further violated the 

aforementioned statutes by (a) harassing Plaintiff every month by bringing the water bill and 

putting it in his screen door, demanding payment; (b) refusing to reimburse Plaintiff the cost of 

replacing Plaintiff’s telephone and stereo which were destroyed by negligent wiring in the 

apartment; and (c) failing to prevent Plaintiff’s neighbors from driving their automobiles through 

Plaintiff’s garden. (Doc. 1 at 2-4). 

The Court has analyzed Plaintiff=s claims to determine whether Plaintiff has pled “factual 

content that allows the court to draw the reasonable inference that [each] defendant is liable for 

the misconduct alleged,” Iqbal, __ U.S. __, 129 S. Ct. at 1949, and whether Plaintiff=s “[f]actual 

allegations [are] enough to raise a right to relief above the speculative level” and “sho[w] that 

[Plaintiff] is entitled to relief.” Twombly, 550 U.S. at 555, 557 (citations and internal quotation 

marks omitted). Based on this analysis, the Court recommends that Plaintiff’s complaint be 

dismissed under 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim upon which relief could 

be granted. 

 A. Fair Housing Act Claims. 

The Fair Housing Act of 1968, 42 U.S.C. ' 3601, et seq., “broadly prohibits 

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discrimination in housing . . . .” Gladstone Realtors v. Village of Bellwood, 441 U.S. 91, 93 

(1979). Specifically, ' 3604(b) and (f) prohibit discrimination “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 therewith, because of race, color, religion, sex, familial status . . . national origin” 

or handicap. 42 U.S.C. ' 3604(b), (f) (emphasis added); see also Leroy v. IMS Mgmt. Servs., 

LLC, 2010 WL 554642, *3 (M.D. Ga. 2010). 

In order to state a claim under the Fair Housing Act, a plaintiff must allege “unequal 

treatment” on the basis of race or other protected classification “that affects the availability of 

housing.” Jackson v. Okaloosa County, Florida, 21 F.3d 1531, 1542 (11th Cir. 1994); accord

Hallmark Developers, Inc. v. Fulton County, Ga., 466 F.3d 1276, 1283 (11th Cir. 2006). 

Unequal treatment can be established by showing intentional discrimination, discriminatory 

impact, or, in the case of persons with a handicap,4

 refusal to make reasonable accommodations. 

 Hallmark, 466 F.3d at 1283-86; Schwartz v. City of Treasure Island, 544 F.3d 1201, 1212 (11th 

Cir. 2008); Reese v. Miami-Dade County, 2009 WL 3762994, *9-13 (S.D. Fla. 2009). 

 

 4

 42 U.S.C. § 3602(h) defines “handicap” as: 

(1) a physical or mental impairment which substantially 

limits one or more of such person=s major life activities, 

(2) a record of having such an impairment, or 

(3) being regarded as having such an impairment, 

but such term does not include current, illegal use of or 

addiction to a controlled substance (as defined in section 

802 of Title 21). 

The Court assumes for purposes of this screening that Plaintiff has a handicap as 

defined in this section. 

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In the present case, even assuming as true Plaintiff’s allegations that he is “a black 

disabled veteran with mental and physical disabilities” (Doc. 1 at 2), he has alleged no facts that 

would show that he received unequal treatment from this, or any other, Defendant on the basis of 

his race or alleged handicap. To the contrary, Plaintiff alleges that Defendant Pecoraro told him 

that he “had to pay [his] own water bill like everybody else.” (Doc. 1 at 3) (emphasis added). 

The mere fact that Plaintiff is a disabled black man and that his new landlord required 

him to start paying his own water bill after the former rental agent told him that he would not be 

required to do so does not state a claim under the FHA as it does not show unequal treatment by 

any Defendant because of Plaintiff’s race or handicap. 42 U.S.C. ' 3604(b), (f); Jackson, 21 

F.3d at 1542. Likewise, the allegations that Defendant Pecoraro failed to reimburse Plaintiff for 

damaged electronics and failed to build a barricade to keep the neighbors from driving through 

Plaintiff’s garden fail to state a claim upon which relief could be granted under the FHA as they 

do not show unequal treatment by any Defendant on the basis of Plaintiff’s race or alleged 

handicap. 

Because Plaintiff does not allege discrimination by Defendants on the basis of his race, 

alleged handicap, or any other protected trait, Plaintiff=s complaint fails to state a claim under the 

FHA. See Leroy, 2010 WL 554642 at *3 (Plaintiffs’ allegations that their landlord breached a 

lease agreement requiring the landlord to assume the cost of water and sewer did not state a 

claim under the FHA where Plaintiffs failed to allege facts showing discrimination by Defendant 

“on the basis of any protected trait.”); see also Farrar v. Eldibany, 137 Fed. Appx. 910, 912 (7th

Cir. 2005) (unpublished) (affirming dismissal of Plaintiff=s FHA claim arising out of landlord’s 

failure to provide heat and hot water for four days, stating that Plaintiff’s allegations established 

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a simple landlord-tenant dispute and that “[t]he mere fact that [Plaintiff, who is African 

American,] has a dispute over rent or services with the ‘non-Black’ owner and manager of her 

building does not establish a claim under the Fair Housing Act.”). 

Accordingly, because Plaintiff has failed to allege unequal treatment on the basis of race 

or other protected classification “that affects the availability of housing,” Jackson, 21 F.3d at 

1542, Plaintiff’s claims against Defendants based on the Fair Housing Act are due to be 

dismissed under 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim upon which relief could 

be granted. 

B. Americans With Disabilities Act Claims. 

The stated purpose of the Americans with Disabilities Act (“ADA”) is “‘to provide a 

clear and comprehensive national mandate for the elimination of discrimination against 

individuals with disabilities.’” McNely v. Ocala Star-Banner Corp., 99 F.3d 1068, 1073 (11th

Cir. 1996) (quoting 42 U.S.C. ' 12101(b)(1)). The Americans with Disability Act is divided 

into subchapters or “Titles”: Title I prohibits discrimination against disabled persons in 

employment; Title II prohibits discrimination against disabled persons in public services 

furnished by governmental entities; Title III prohibits discrimination against disabled persons in 

public accommodations provided by private entities; and Title IV prohibits retaliation and 

coercion against disabled persons who exercise their rights under the ADA. Olmstead v. L.C. 

ex rel. Zimring, 527 U.S. 581, 589 (1999); McNely, 99 F.3d at 1074-75; Access Now, Inc. v. 

South Florida Stadium Corp., 161 F. Supp. 2d 1357, 1362 (S.D. Fla. 2001). 

In his complaint, Plaintiff does not specify which provision of the ADA he alleges has 

been violated by Defendants. Because Plaintiff makes no allegations related to employment 

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(Title I), the Court considers Plaintiff’s allegations under Titles II (public services), III (public 

accommodations), and IV (retaliation and coercion). 

Title II of the ADA provides that, “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 (emphasis added). “A public entity is a state or local government 

or ‘any department, agency, special purpose district, or other instrumentality of a State or States 

or local government.’” Hawkins v. Hamlet, Ltd., 296 Fed. Appx. 918, 919 (11th Cir. 2008) 

(unpublished). 

In his complaint, Plaintiff does not allege that any of the Defendants is a “public entity.” 

Thus, Plaintiff’s complaint fails to state a claim under Title II of the ADA. See id. (Plaintiff=s 

complaint arising out of landlord’s refusal to renew his apartment lease failed to state a claim 

under Title II of the ADA because Plaintiff “was unable adequately to allege that [Defendant] is 

a public entity subject to Title II of the ADA.”). 

Similarly, with respect to Title III of the ADA, ' 12182(a) provides that, “[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.” 42 U.S.C. ' 12182(a) (emphasis added). Although certain private entities 

are considered public accommodations for the purposes of the ADA, such as “an inn, hotel, 

motel, or other place of lodging. . .,” 42 U.S.C. ' 12181(7), “residential facilities” such as 

apartments and condominiums are not considered “public accommodations” as defined by the 

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ADA and, thus, are not covered by the ADA. See Lancaster v. Phillips Invs., LLC, 482 F. 

Supp. 2d 1362, 1366-67 (M.D. Ala. 2007) (landlord of apartment complex entitled to summary 

judgment on Plaintiff=s ADA claim because “Title III of the ADA does not apply to residential 

facilities” such as apartments and condominiums); Champlin v. Sovereign Residential Servs., 

2008 WL 2646627, *4-5 (M.D. Fla. 2008) (unpublished) (residential condominiums and 

apartments are not public accommodations within the meaning of the ADA) (citing cases); see 

also Regents of Mercersburg Coll. v. Republic Franklin Ins. Co., 458 F.3d 159, 165 n.8 (3rd Cir. 

2006) (“We agree that residential facilities such as apartments and condominiums are not 

transient lodging and, therefore, not subject to ADA compliance.”). Because Plaintiff’s 

allegations of ADA violations in this case relate to the lease of his apartment (a residential 

facility) from Defendant Pecoraro, his complaint fails to state a claim under Title III of the ADA. 

 Next, with respect to Title IV of the ADA, § 12203(a) provides: “[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.” In 

addition, § 12203(b) provides: “[i]t shall be unlawful to coerce, intimidate, threaten, or interfere 

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

or enjoyed, or on account of his or her having aided or encouraged any other individual in the 

exercise or enjoyment of, any right granted or protected by this chapter.” In his complaint, 

Plaintiff does not allege that any Defendant retaliated against him or coerced or threatened him

because he exercised any right under the ADA. Thus, Plaintiff’s complaint fails to state a claim 

under Title IV of the ADA. 

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Finally, in order to state a claim under Titles II, III, or IV of the ADA, Plaintiff is 

required to establish causation, that is, that Defendants discriminated against him “by reason of” 

his alleged disability (Title II), 42 U.S.C. ' 12132, or “on the basis of” his alleged disability 

(Title III), 42 U.S.C. ' 12182(a), or that Defendants retaliated against him “because” of or “on 

account of” the exercise of his rights under the ADA (Title IV), 42 U.S.C. § 12203. “The ADA 

imposes a ‘but-for’ liability standard,” requiring Plaintiff to show that his alleged disability was 

“a factor that made a difference in the outcome.” McNely, 99 F.3d at 1077; see also Schwarz v. 

City of Treasure Island, 544 F.3d 1201, 1212 n.6 (11th Cir. 2008). Because Plaintiff in this 

action does not allege that his disability was a factor in any adverse action taken against him by 

Defendants or that he was retaliated against by Defendants because he exercised his rights under 

the ADA, his complaint fails to state a claim upon which relief could be granted under the ADA. 

 C. Section 1983 Claims. 

Last, Plaintiff alleges that Defendants’ actions related to the lease of his apartment from 

Defendant Pecoraro violated 42 U.S.C. ' 1983. It is axiomatic that, in order to state a claim for 

relief in an action brought under ' 1983, Plaintiff must establish that he was “deprived of a right 

secured by the Constitution or laws of the United States, and that the alleged deprivation was 

committed under color of state law. . . .” American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 

40, 49-50 (1999) (emphasis added). “[T]he under-color-of-state-law element of ' 1983 

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

Id. at 50 (citations and internal quotation marks omitted).

In his complaint, Plaintiff does not allege any facts that would establish that Defendants 

acted “under color of state law” with respect to the matters alleged in this case. To the contrary, 

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Plaintiff=s allegations suggest purely private conduct involving landlord-tenant disputes. 

Therefore, Plaintiff=s complaint fails to state a claim upon which relief could be granted under '

1983. 

CONCLUSION

Based on the foregoing, the Court finds that the allegations in Plaintiff=s complaint fail to 

state a claim upon which relief could be granted under the FHA, the ADA, or § 1983. 

Therefore, it is recommended that Plaintiff=s claims against Defendants, Keith Realty 

Midtown/Corporate Overseer, Robert Keith, Nofio Pecoraro, Susan Milling, and Dauphin 

Realty, Inc., be dismissed without prejudice, prior to service of process, pursuant to 28 U.S.C. '

1915(e)(2)(B)(ii) for failure to state a claim upon which relief may be granted. 

The instructions which follow the undersigned=s signature contain important information 

regarding objections to the report and recommendation of the Magistrate Judge. 

DONE this the 19th day of July, 2010. 

 s/WILLIAM E. CASSADY 

 UNITED STATES MAGISTRATE JUDGE

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 MAGISTRATE JUDGE'S EXPLANATION OF PROCEDURAL RIGHTS AND 

 RESPONSIBILITIES FOLLOWING RECOMMENDATION, AND 

 FINDINGS CONCERNING NEED FOR TRANSCRIPT

l. Objection. Any party who objects to this recommendation or anything in it must, within 

fourteen (14) days of the date of service of this document, file specific written objections with 

the Clerk of this court. Failure to do so will bar a de novo determination by the district judge 

of anything in the recommendation and will bar an attack, on appeal, of the factual findings of 

the Magistrate Judge. See 28 U.S.C. ' 636(b)(1)(C); Lewis v. Smith, 855 F.2d 736, 738 (11th 

Cir. 1988); Nettles v. Wainwright, 677 F.2d 404 (5th Cir. Unit B, 1982) (en banc). The 

procedure for challenging the findings and recommendations of the Magistrate Judge is set out in 

more detail in SD ALA LR 72.4 (June 1, 1997), which provides that: 

A party may object to a recommendation entered by a magistrate judge in a 

dispositive matter, that is, a matter excepted by 28 U.S.C. ' 636(b)(1)(A), by 

filing a >Statement of Objection to Magistrate Judge=s Recommendation= within 

ten days5 after being served with a copy of the recommendation, unless a 

different time is established by order. The statement of objection shall specify 

those portions of the recommendation to which objection is made and the basis 

for the objection. The objecting party shall submit to the district judge, at the 

time of filing the objection, a brief setting forth the party=s arguments that the 

magistrate judge=s recommendation should be reviewed de novo and a different 

disposition made. It is insufficient to submit only a copy of the original brief 

submitted to the magistrate judge, although a copy of the original brief may be 

submitted or referred to and incorporated into the brief in support of the objection. 

 Failure to submit a brief in support of the objection may be deemed an 

abandonment of the objection. 

 

A magistrate judge's recommendation cannot be appealed to a Court of Appeals; only the 

district judge's order or judgment can be appealed. 

2. Transcript (applicable Where Proceedings Tape Recorded). Pursuant to 28 U.S.C. '

1915 and FED. R. CIV. P. 72(b), the Magistrate Judge finds that the tapes and original records in 

this case are adequate for purposes of review. Any party planning to object to this 

recommendation, but unable to pay the fee for a transcript, is advised that a judicial 

determination that transcription is necessary is required before the United States will pay the cost 

of the transcript. 

 

 5

 Effective December 1, 2009, the time for filing written objections was extended to “14 

days after being served with a copy of the recommended disposition[.]” Fed. R. Civ. P.

72(b)(2). 

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