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Ninth Circuit Says Plaintiff Sufficiently Alleged Disability Discrimination Claims Under The FHAA And ADA


HLD, v. 33, n. 1 (January 2005)

Ninth Circuit Says Plaintiff Sufficiently Alleged Disability Discrimination Claims Under The FHAA And ADA

In 2000, an inspector from the City of Portland's (City) Office of Planning and Development Review (OPDR) inspected the home of Richard McGary, who has AIDS. McGary's illness impaired his ability to keep up his property. The inspector determined that trash and debris in McGary's yard was a nuisance under Portland City Code � 29.20.010. OPDR sent McGary a letter dated February 1, 2000, directing him to clean his yard by February 16, 2000. McGary attempted to remove all the debris with the help of a patient advocate from the Cascades AIDS Project (CAP), who also tried to contact OPDR because McGary was not able to complete the work.

On February 22, 2000 OPDR issued a Notice of Work Order directing McGary to complete the cleanup because his efforts were insufficient, and the CAP patient advocate asked the OPDR to give McGary additional time to clean the yard based on his illness. The OPDR issued a Final Notice on March 2, 2000, and on March 13 McGary was hospitalized with meningitis related to AIDS. The CAP patient advocate informed the OPDR of McGary's hospitalization, but the OPDR issued a warrant on March 21. On March 28, the City's contractor removed the debris and the City sent McGary a bill for $1,818.83 for the cost of cleaning the yard, and placed a lien for that amount on McGary's home. McGary later sold his home and paid the lien.

McGary (plaintiff) sued the City (defendant) in March 2002 on claims that defendant had violated the Fair Housing Amendments Act of 1988 (FHAA), 42 U.S.C. � 3601 et seq., the Americans with Disabilities Act (ADA), 42 U.S.C. � 12101 et seq. and state and local laws by discriminating against him based on his disability by not allowing him extra time to clean his yard. Plaintiff sought compensatory damages and attorneys' fees and costs. Defendant filed a motion to dismiss on the ground plaintiff failed to state a claim upon which relief could be granted. The district court granted the motion and plaintiff appealed.

The Ninth Circuit reversed the district court's judgment and held plaintiff sufficiently stated claims under the FHAA and the ADA. The appeals court first addressed the FHAA issue and plaintiff's claim that under the FHAA defendant had failed to respond to his request for a "reasonable accommodation" for additional time to clean his yard. The FHAA provides that a disabled person cannot be discriminated against by not allowing the disabled person a reasonable accommodation to use their dwelling, which the appeals court characterized as an "affirmative duty." To sufficiently allege a claim of a failure to reasonably accommodate a disability under the FHAA the plaintiff must allege: (1) that he has a handicap within the meaning of the FHAA; (2) that the defendant knew or should have known about the handicap; (3) that the accommodation was necessary for the plaintiff to use the dwelling; and (4) the defendant refused to make the accommodation. The appeals court determined the dispute only involved the third requirement about the necessity of the accommodation. Defendant argued plaintiff failed to sufficiently allege any accommodation was necessary for him to use and enjoy his home. The pleading threshold for FHAA claims is low, said the appeals court, and the courts have applied liberal pleading requirements to FHAA claims. The appeals court held plaintiff sufficiently alleged that defendant's decision to put a lien on his home to pay for the yard cleaning impaired his ability to use and enjoy his home by interfering with his ability to use the property as collateral. The appeals court thus held plaintiff had sufficiently alleged a claim under the FHAA upon which relief could be granted.

The appeals court then turned to the ADA claim and plaintiff's argument that defendant failed to provide a reasonable accommodation by allowing him additional time to clean his yard. The ADA provides no individual with a qualified disability may be discriminated against or excluded from any benefit or service based on the disability. Of the four elements that are needed in order to state a claim for discrimination under the ADA, the only one at issue was the requirement that any exclusion or denial of benefits was "by reason of" the disability. The district court held plaintiff failed to sufficiently allege defendant acted by reason of his disability because other residents were subject to the nuisance abatement ordinance. The appeals court determined that, although the ordinance was facially neutral, the application of the ordinance in this case unduly burdened a disabled person.

The district court erred in reasoning that the issue was about disparate treatment, said the appeals court, when the issue was about a reasonable accommodation. Here plaintiff sought an accommodation that was consistent with his disability and the purpose of the ADA is to allow nondisabled and disabled people to be treated as equally as possible while taking into consideration how the disability affects the individual's ability to comply with a law or ordinance. The appeals court held plaintiff had sufficiently alleged a claim under the ADA.

The appeals court also addressed plaintiff's claims under state and local law. The district court dismissed the state and local law claims by reasoning that they should be interpreted the same as the federal claims and since the federal claims were dismissed the state and local law claims could be dismissed for that reason. Because the district court erred in dismissing the federal claims, the appeals court reversed the dismissal.

McGary v. City of Portland, No. 02-35668, 386 F.3d 1259 (9th Cir. Oct. 27, 2004). To read the case, go to$file/0235668.pdf?openelement

Health Lawyers thanks Michael D. Roth, of the Law Offices of Michael Dundon Roth, in Los Angeles, California, for sending us a copy of this decision.

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