Taal v. Zwirner CV-02-131-M 03/22/04 UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Baboucar B. Taal, and Guylaine L. Taal, Plaintiffs
v. Civil No. 02-131-M Opinion No. 2004 DNH 054 Patricia Zwirner, Defendant
_________________________________ O R D E R
Pro se plaintiffs, Baboucar B. Taal and his wife, Guylaine,
filed this federal suit against several parties alleging racially
discriminatory behavior, a conspiracy to violate their civil
rights, and various violations of the Fair Housing Act. The
original cast of defendants included Douglas P. Zwirner, his
wife, Patricia, Kim Lacey, and State Farm Mutual Automobile
Insurance Company. The Zwirners and Taals were next-door
neighbors in Bedford, New Hampshire (the Zwirners have since
moved); Lacey still resides across the street from the Taals, and
State Farm employed M r s . Zwirner and provided the Zwirners with
insurance coverage of some sort. This suit was preceded by state litigation brought by
Baboucar Taal against Douglas Zwirner in the New Hampshire
Superior Court (Hillsborough North, Docket No. 01-C-lll). Taal's
claims in that case were virtually identical to those advanced
here. In his state Writ, dated February 7, 2001, Taal claimed:
For 21 months myself and my family were constantly subjected to, by defendant; threatened physical force, trespass and vandalism to property, communicated by conduct and declaration; of constant verbal threats, lewd and obscene gestures and intimidation, with the expressive purpose to terrorize and coerce us to move, interfering and violating with our civil rights and individual liberties under the United States Constitution and federal law and New Hampshire Civil Rights act, motivated by race, color and national origin. For that we seek damages of ($1+$2.1 million)[.]
That case was tried to verdict. The jury awarded Taal $2,000 in
damages on a trespass count.
In this suit, the allegations are substantively identical,
although they are lodged against additional defendants. The
amended federal complaint asserts, in pertinent part, that:
4. Defendants Douglas and Patricia engaged in Racial Harassment, Intimidation, Terrorizing of myself, my wife and our children along with Trespassing on and Vandalizing of our property. We reported these acts to
2 the Bedford Police Department of literally more than 100 of these incidences. The Zwirners and Kim Lacey colluded and conspired to give false, misleading and inconsistent statements to law enforcement agencies, hindering their efforts to stop these acts thus denying, hindering and obstructing our right of egual protection under the law. Ms. Lacey came to State court and gave false and misleading statement under oath purposefully to obstruct and defeat our efforts in seeking justice.
5. Between January 1999 to September 2000, the Zwirners lived next-door to us and defendant Lacey across the street on Essex Road, in Bedford. For 21 months and more the Zwirners engaged in Racial H a r a [s ]sment, Intimidation Threatening and Terrorizing myself, my wife and children continuously and constantly trespassing and vandalizing our property. Defendant Lacey while being aware of these acts enjoyed our continuous torment, talked about it to other neighbors, told investigators that she know nothing about it, despite Douglas saying that she and others were aware of what was going on. Ms. Lacey in her deception and making false and misleading statements, told a story of the Police Chief coming to her home and told her of the department investigating a fence dispute. The Chief of Police has stated that he has never met, talked to or gone to her house. Ms Lacey and the Zwirner concocted another story of when they first met, only to have Douglas Zwirner not sticking to that story line, all of this done under oath. Ms Lacey denied speaking to the Zwirners less than 24 hours before she came to testify and started to give a story about the last time they spoke being months ago, I stopped her and then she admitted that they spoke the day before.
•k -k -k
7. The evident need to constantly give false, misleading and inconsistent statement not only show the continued deceptive efforts to defeat, hinder and
3 obstruct our right to due justice but also denied us the afforded equal rights and protection under the law. These defendants being fully aware of their actions continuously and constantly engaged in these acts, despite our communicating to them and asking them to stop. They got bolder in their actions, and at one point intimated to another neighbor that they want to "keep the neighborhood white", they would continue engage in making lewd gestures and conduct, yelling racial slurs, gesturing his middle finger, spitting and heckling all of these in front of our kids. All of these would happen every time our garage door opens and or when we are outside on our driveway playing with our kids. The Zwirner found it necessary to come back to the neighborhood even after they move out to engage in stalking and intimidation under the pretext of being invited to a birthday party that he did not know whose or what age.
Amended Complaint (document no. 14) 55 4, 5 and 7.
The complaint also alleges that State Farm, "their [the
Zwirners'] employer and insurer," knew of the harassment,
provided "equipment, material comfort and counsel," and "directly
and indirectly participated in the conspiracy to violate and
interfere with our civil rights . . . . They allowed, furnished
and directed the Zwirners to take pictures, engage in computer
generated harassing phone calls, using the same computers to
perpetrate and concoct the conspiracy with Defendant Lacey. They
4 together engaged in violation of the exercise and or enjoyment of
our rights under the Fair Housing Act." I d ., 5 6.
State Farm filed a well-supported motion for summary
judgment, and judgment was entered on the merits in its favor
earlier in the case. Similarly, defendant Kim Lacey filed a
well-supported motion for summary judgment and judgment was
entered on the merits in her favor as well1. The claims asserted
against defendant Douglas Zwirner in this suit were dismissed on
res judicata grounds, since it is plain that those claims could
have been, and in fact largely were, asserted against Zwirner in
1 Although it is often difficult to tell just what plaintiffs are specifically alleging, the court determined that the gist of their complaints against Lacey was that she did not testify truthfully in the earlier state civil trial. After reviewing the submitted transcript extracts and the record, this court agreed with the state trial judge that Lacey did not, as plaintiffs allege, testify in a contradictory way about any material matter at all. No evidence was offered suggesting that she engaged in any conspiracy to deprive plaintiffs of their civil rights, and, to the extent plaintiffs were suing Lacey based upon her state court testimony, she was entitled to immunity. See Stoutt v. Banco Popular De Puerto Rico, 320 F.3d 26, 33 (1st Cir. 2003) (the common law absolute immunity of witnesses is a well-recognized limitation on constitutional as well as other torts); Watterson v. Page, 987 F.2d 1, 9 (1st Cir. 1993) .
5 the state litigation that preceded this case.2 See In re
Colonial Mortgage Bankers Corp., 324 F.3d 12, 15 (1st Cir. 2003);
Gonzalez v. Banco Cent. Corp., 27 F.3d 751, 755-56 (1st Cir.
1994) (where two suits involve the same transactions or series of
transactions, a prior judgment in the first suit is conclusive as
to all issues which were actually litigated or which could have
been litigated) .
What remains of this case, then, are the claims against
defendant Patricia Zwirner. She, too, has filed a well-supported
motion for summary judgment, and, once again, plaintiffs have not
offered any evidence - and the record, viewed most favorably to
plaintiffs, does not suggest any - sufficient to create a genuine
dispute as to material facts, or a trial-worthy issue.
2 The substance of the state Writ is set out above and raises claims of racial harassment and civil rights conspiracies, as well as claims that facially describe Fair Housing Act violations, in addition to trespass and other state law claims, at least when read liberally. The parties have not provided much by way of procedural history of the state litigation, but it is clear from the submitted verdict form in the state case that only the trespass claim went to the jury. Plaintiff recovered $2,000 on that claim, and unsuccessfully sought a new trial and other post-judgment relief.
6 To be sure, the amended complaint describes disturbing and
unacceptable racial bigotry in broad and general terms guaranteed
to garner attention (i.e., racial harassment, terrorizing, and
vandalizing). But, beyond broad-form and conclusory allegations,
plaintiffs have produced almost nothing by way of evidence, or
even descriptions of specific events, from which a reasonable
jury could find for them on any asserted federal claim.
Accordingly, for the reasons discussed below, Patricia Zwirner's
motion for summary judgment is also granted.
Standard of Review
When ruling on a party's motion for summary judgment, the
court must "view the entire record in the light most hospitable
to the party opposing summary judgment, indulging all reasonable
inferences in that party's favor." Griggs-Ryan v. Smith, 904
F.2d 112, 115 (1st Cir. 1990). Summary judgment is appropriate
when the record reveals "no genuine issue as to any material fact
and . . . the moving party is entitled to a judgment as a matter
of law." Fed. R. Civ. P. 56(c). In this context, "a fact is
'material' if it potentially affects the outcome of the suit and
a dispute over it is 'genuine' if the parties' positions on the
7 issue are supported by conflicting evidence." Intern'1 Ass'n of
Machinists & Aero. Workers v. Winship Green Nursing Ctr., 103
F.3d 196, 199-200 (1st Cir. 1996) (citations omitted).
Nevertheless, if the non-moving party's "evidence is merely
colorable, or is not significantly probative," no genuine dispute
as to a material fact has been proved, and "summary judgment may
be granted." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-
50 (1986) (citations omitted). As the Court of Appeals for the
First Circuit has observed, "the evidence illustrating the
factual controversy cannot be conjectural or problematic; it must
have substance in the sense that it limns differing versions of
the truth which a fact finder must resolve at an ensuing trial.
Conclusory allegations, improbable inferences, and unsupported
speculation will not suffice." Cadle Co. v. Hayes, 116 F.3d 957,
960 (1st Cir. 1997) (citations and internal guotation marks
omitted). See also Coyne v. City of Somerville, 972 F.2d 440,
444-45 (1st Cir. 1992) ("[TJhough for pleading purposes the line
between sufficient facts and insufficient conclusions is often
blurred, we nonetheless reguire that it be plotted.") (citation
and internal punctuation omitted). The key, then, to defeating a properly supported motion for
summary judgment is the non-movant's ability to support his or
her claims concerning disputed material facts with evidence that
conflicts with that proffered by the moving party. See generally
Fed. R. Civ. P. 56(e). Conseguently, while a reviewing court
must take into account all properly documented facts, it may
ignore bald assertions, unsupported conclusions, and mere
speculation, see Serapion v. Martinez, 119 F.3d 982, 987 (1st
Cir. 1997), as well as those allegations "which have since been
conclusively contradicted by [the non-moving party's] concessions
or otherwise," Chongris v. Bd. of Appeals, 811 F.2d 36, 37 (1st
Cir. 1987) .
Background
Defendant Patricia Zwirner is alleged to have conspired with
her husband Douglas Zwirner, her neighbor Kim Lacey, and State
Farm, to deprive plaintiffs of their civil rights. When pressed
for specific facts that would support such a claim, plaintiffs
have consistently relied upon mere reiteration of the charge
itself, unsupported accusations of unethical conduct on the part
of defense counsel, and, occasionally, broad conclusory statements unsupported by affidavit or other evidence. See,
e.g., Pl.'s O b j . to Def. Zwirner's Mot. for Summ. J. (document
no. 127); Mot. Seeking Ruling of What Remains of Pis.' Case
(document no. 163); Tr., Final Pretrial Conf. (document no. 165).
While it must seem to pro se litigants that courts do not do
enough to help them present and litigate their claims, parties
opposing pro se litigants probably think courts go much too far
in bending over backwards to accommodate even meritless pro se
claims. Any practicing attorney would likely attest to the fact
that litigating against pro se parties is far more difficult,
frustrating, expensive, and counter-productive than litigating
against their most accomplished professional colleagues. In this
case, plaintiffs have been afforded every opportunity to produce
what evidence they can to support their legal theories. Most
recently, plaintiffs were afforded additional time to conduct
late discovery, including taking the deposition of Patricia
Zwirner. The time has now come to hold them to the applicable
legal standards in resolving this litigation.
10 The record discloses that the Taals and Zwirners bought and
moved into newly constructed homes that were built closer to each
other than the Zwirners expected. The Zwirners made no secret of
the fact that they were unhappy with the builder about that close
proximity. The Taals erected a fence between the properties and
a dispute over its location quickly arose. That dispute
blossomed into continuous bickering between the neighbors. A
series of complaints and counter-complaints were made over the
ensuing months to the local police department and, eventually,
the F.B.I. Taal at one point complained to the F.B.I. that
Douglas Zwirner engaged in "racial verbal and physical harassment
(via gestures)" toward him. Exhibit B, Def.'s Mot. for Summ. J.
(document no. 124). Investigations by the local police and the
F.B.I. did not result in any official action. The F.B.I.'s
records (as filed) reflect similar types of complaints by the
Zwirners against the Taals: name calling, trespassing, repeated
glaring at them and their children, etc. Among the few specifics
offered by the Taals in the record are descriptions of golf balls
being chipped onto their yard or into their pool, sticks (Taal
calls them "logs") being tossed over the fence, and similar
bickering nuisances.
11 Taal pressed a criminal complaint against Douglas Zwirner at
one point, alleging that Zwirner criminally threatened him.
Zwirner was acguitted.
Discussion
I. The Conspiracy Claim - 42 U.S.C. § 1985(3).
Patricia Zwirner has filed an affidavit in which she denies
being involved in any conspiracy to violate plaintiffs' civil
rights. She denies vandalizing, trespassing, or racially
harassing plaintiffs. She points out that she only met Kim Lacey
just before she moved from Bedford in September of 2000, while
the conflict between the Zwirners and Taals long preceded that
acguaintance. (Defendant Zwirner and her family sold their home
and moved following the conflict with the Taals.)
In opposition to Zwirner's motion for summary judgment,
plaintiffs filed a videotape that they say constitutes evidence
of harassment and intimidation. But, that tape shows nothing of
the sort. The first portion of the tape consists of Douglas
Zwirner's deposition in the state case. The remainder of the
videotape (seemingly taken from Taals' home) shows a man
12 (presumably Zwirner) benignly walking by on what appears to be a
public sidewalk, apparently in front of the Taals' home. It then
depicts an incident during which a man (again presumably Zwirner)
relaxing peacefully in his own yard. He discovers that he is
being videotaped and he responds by retrieving his own video
camera and taping the person (presumably Taal) who is taping him.
The tape is not evidence of harassment, or terrorizing, or
vandalizing by the Zwirners. If anything, the tape documents a
provocative and un-neighborly intrusion initiated by the Taals.
The intrusive behavior by Taal was, unfortunately, promptly
mimicked by Douglas Zwirner. Significantly, what the videotape
also reveals is that the defendant here, Patricia Zwirner,
interceded with her husband, obviously talking him into calming
down and leading him into his home to end the confrontation - a
confrontation that, by all appearances on the tape, was initiated
by the Taals. So, as explained to the plaintiffs during the
pretrial conference, the tape hardly constitutes evidence
supportive of their claims. On the contrary, it is evidence that
they, not the Zwirners, were the provocateurs, at least on this
documented occasion. If there are other acts by the Zwirners
13 upon which plaintiffs are relying, no evidence has been offered
to establish or describe them.
Although plaintiffs are prone to dramatic language, claiming
"hundreds" of incidents demonstrating racial animosity, and
asserting that "every time" they went outside they were harassed,
the court has been unable to extract much by way of evidence of,
or even a specific factual description of what occurred on the
particular occasions underlying this suit, save for the few
incidents described above, i.e., who did or said what, and when.
The specific complaints reflected in plaintiffs' general
statements, or as described in the various police reports filed
in support of defendant's motion, reveal little more than
neighbors engaged in bickering and feuding, and exchanging harsh
charges.
It is, of course, unlawful for persons to conspire for the
purpose of depriving, either directly or indirectly, any person
or class of persons of the egual protection of the laws, or of
egual privileges or immunities, or for the purpose of hindering
constituted authorities from securing egual protection to all
14 persons. 42 U.S.C. § 1985(3). There is no state action involved
in this case, and, in order to establish a private conspiracy
under the deprivation clause of § 1985(3), a plaintiff must show
not only a racial (or other class-based invidiously
discriminatory) animus behind the conspirators' actions, but also
that the conspiracy is aimed at interfering with rights protected
against private as well as official encroachment. The Supreme
Court has recognized only two such rights for deprivation clause
purposes - the right to be free from involuntary servitude and
the right of interstate travel. See Griffin v. Breckenridge, 403
U.S. 88, 102 (1971); Carpenters & Joiners, Local 610 v. Scott,
463 U.S. 825, 833 (1983).
Plaintiffs do not assert an abridgement of either right, and
nothing in the record suggests the existence of factual support
for such a claim.
While plaintiffs do not seem to be asserting a claim under
the "hindrance clause" of § 1985(3), see generally Libertad v.
Welch, 53 F.3d 428, 446-50 (1st Cir. 1995), it might be argued
that they are (e.g., to the extent they suggest a conspiracy by
15 Patricia Zwirner and Kim Lacey to lie to law enforcement
authorities in order to interfere with the authorities' ability
to stop the alleged harassment). But once again, no adeguate
factual basis for such a claim can be found in this record.
Lacey was apparently interviewed by law enforcement authorities,
who were responding to Taal's many complaints, and said she was
generally aware of a dispute between the Zwirners and Taals over
a fence, but otherwise was not aware of specific confrontative
incidents. Patricia Zwirner denies conspiring with Lacey or
anyone else to lie to the police, denies lying herself, or
testifying falsely, and denies any race-based animus. Nothing in
the record suggests otherwise. At most, plaintiffs have offered
some evidence that Douglas Zwirner used a "racial epithet" and
made a lewd gesture, but otherwise simply assert in broad terms
that "they" harassed and terrorized - but without specifics. A
hindrance clause claim necessarily fails because there is no
factual basis on this record from which a jury could find that
the right allegedly infringed by the supposed conspiracy was a
right constitutionally protected or guaranteed, or that the
purpose and effect of the supposed conspiracy was to impede state
officials in their efforts to secure egual protection of the
16 laws. Id. It is simply not enough to allege, in dramatic terms,
that a conspiracy existed, or must have existed, based merely on
the difference in race between unneighborly antagonists. See
Mass v. McClenahan, 893 F. Supp. 225, 231 (S.D.N.Y. 1995).
Plaintiffs have not offered any evidence of Patricia
Zwirner's acts and statements, nor have they produced any other
evidence from which a conspiracy to deprive them of civil rights
might be found. They seem to contend that her testimony in the
state litigation is evidence of a conspiracy, but it is not.
Perhaps they also filed a videotape of the recent deposition of
Patricia Zwirner as support for their claim that she somehow
"lied" about matters in dispute. But they do not identify any
testimony they consider to be untruthful or that might support a
conspiracy claim, nor do they offer evidence from which a jury
could conclude that the unspecified testimony was untruthful, nor
do they explain how any untruthful testimony might be related to
a conspiracy to deprive them of constitutionally protected civil
rights. There is simply nothing in this record from which a
reasonable jury could conclude, by a preponderance of the
17 evidence, that Patricia Zwirner conspired with anyone to deprive
plaintiffs of any civil rights.
Indeed, there is much less here than was presented in Manego
v. Cape Cod Five Cents Sav. Bank, 692 F.2d 174 (1st Cir. 1982) .
In that case, plaintiff claimed he was denied a license to
operate a disco because of his race; that, within half a year
after being turned down, a disco license was issued to a white
applicant; that someone had set fire to his property; and that
unnamed persons had uttered racial slurs. While those facts
certainly warranted pursuit, plaintiff in that case, like the
plaintiffs here, simply did not develop evidence that might
support what in that case was an obvious suspicion. The court of
appeals noted, and shared, the district judge's frustration,
pointing out that Rule 56(e) placed upon the plaintiff the burden
of producing evidence of the conspiracy he alleged after
defendants showed that the facts upon which he relied to support
his allegations were not susceptible to the interpretation he
sought to give them.
18 The court is well aware that plaintiffs miss no opportunity
to complain that they have been denied discovery, but the record
does not support that claim either. They have had every
opportunity to engage in discovery and to develop their case, but
have either failed to act, or failed to act in accordance with
the applicable rules of procedure, or failed to act consistently
with the orders of the court.
Nevertheless, at the final pretrial conference the court
again pressed Taal on just what additional discovery he thought
he needed or wanted, what evidence he had his or thought might be
developed, and how that evidence might tend to support his
claims.3 His answers were, again, difficult to follow, but he
did state that he needed Patricia Zwirner's deposition as well as
copies of e-mails between Zwirner and Lacey. The court thereupon
delayed ruling on Zwirner's pending motion for summary judgment,
ordered any existing e-mails to be produced, and directed Zwirner
to submit to a late deposition. In addition, the court extended
3 To the extent plaintiffs were seeking relief under Fed. R. Civ. P. 56(f), the reguest was untimely, not adeguately supported, and unjustified. Nevertheless, plaintiffs were, once again, permitted to take Patricia Zwirner's deposition, obtain e- mails, and supplement their opposition to summary judgment.
19 a final opportunity to plaintiffs to submit whatever they could
in opposition to the pending motion for summary judgment. They
filed only a copy of Patricia Zwirner's deposition, without
brief, and without identifying just what in that deposition they
thought supported any of their federal claims. As in Manego,
smoke alone (and there is little evidentiary smoke here) is not
enough to force defendant to trial to prove that her actions were
not discriminatory.
II. The Fair Housing Act Claim.
Plaintiffs have also asserted a Fair Housing Act claim. The
Fair Housing Act ("FHA") 42 U.S.C. § 3601, et seq., is intended
"to provide within constitutional limitations, for fair housing
throughout the United States." 42 U.S.C. § 3601. "Thus, it is
intended to promote 'open, integrated residential housing
patterns and to prevent the increase of segregation, in ghettos,
of racial groups, whose lack of opportunities the Act was
designed to combat.'" Ohana v. 180 Prospect Place Realty Corp.,
996 F. Supp. 238, 240 (E.D.N.Y. 1998) (quoting Otero v. New York
City Hous. Auth., 484 F.2d 1122, 1134 (2d Cir. 1973)) .
20 Although there is some disagreement among courts that have
considered the point, this court will assume that the provisions
of 42 U.S.C. § 3617 provide a separate and substantive basis upon
which to base liability under the FHA. See, e.g., Ohana, 996 F.
Supp. at 241-42 (collecting cases). Section 3617 provides:
It shall be 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, or on account of his having aided or encouraged any other person in the exercise or enjoyment of, any right granted or protected by section 3603, 3604, 3605, or 3606 of this title. This section may be enforced by appropriate civil action.
Section 3617 has been applied somewhat broadly to cover various
forms of interference with housing rights protected by the FHA,
but, of course, with due regard for competing First Amendment
rights. See White v. Lee, 227 F.3d 1214, 1230 (9th Cir. 2000) .
Speech can amount to a violation of § 3617 only when it is
"directed to inciting or producing imminent violence and is
likely in fact to do so." Id. Threats of violence, coercion,
and intimidation directed against individuals, however, do not
gualify as advocacy, and may well constitute a violation of §
3617. Id.
21 Reviewing plaintiffs' amended complaint in the light most
favorable to them, it does, in general terms, state a claim under
§ 3617, although it is decidedly short on facts and long on
conclusions. See generally, Ohana, 996 F. Supp. at 243. But, at
this stage, the issue before the court is not whether the amended
complaint should be dismissed, but whether summary judgment
should be entered in favor of Patricia Zwirner.
The difficulty for plaintiffs, once again, is that they have
offered no admissible evidence, nor even described any provable
facts, from which a reasonable jury could find by a preponderance
that this defendant, Patricia Zwirner, coerced, intimidated,
threatened, or interfered with plaintiffs' enjoyment of their
home because of their race, color, or national origin. And, the
record suggests none.
To be sure, plaintiffs level broad and generalized claims of
racial harassment "every day" and "hundreds of times," but, with
regard to Patricia Zwirner, offer no factual descriptions of
specific acts and offer no evidence. Considering the record in
the light most favorable to plaintiffs, the parties opposing
22 summary judgment, it is apparent that the only specific complaint
lodged against Mrs. Zwirner is that she supposedly did not
testify truthfully during the earlier state court trial - though,
again, plaintiffs point to nothing that supports such a claim, or
even raises a triable issue of material fact related to that
claim. Plaintiffs have not described or offered any evidence of
any specific incidents during which Patricia Zwirner said
something that might reasonably be viewed as threatening, or did
something that would constitute vandalism or amount to coercion,
or did something that would terrify a reasonable person in
plaintiffs' position or that would suggest some racial animus on
her part. And, of course, Mrs. Zwirner, like all witnesses,
enjoys absolute immunity from liability for her testimony at the
state trial. See Watterston, 987 F.2d at 9.
Moreover, there is no evidence offered, or specific claim
made, that Mrs. Zwirner engaged in any extreme or overt acts that
would gualify as intimidation or coercion under § 3617. See,
e.g., Halprin v. Prairie Single Family Homes of Dearborn Park
Ass'n, 208 F. Supp. 2d 896, 903-06 (N.D. 111. 2002) (collecting
cases regarding level of severity of conduct necessary to
23 constitute an FHA violation). For example, plaintiffs do not
offer evidence (or assert) that defendant engaged in fire bombing
their home or cars, was implicated in cross burnings, physically
assaulted them, threatened to physically assault them, threw
rocks through windows, fired weapons, or engaged in extreme
concerted disruptive activities designed to interfere with their
guiet enjoyment of their home - the types of extreme or severe
conduct that courts have recognized as actionable under § 3617.
At best, what plaintiffs have shown is that they were engaged in
a long-standing, often immature dispute with their neighbors and,
on one documented occasion of friction, they were the instigators
or provocateurs, and on another Douglas, not Patricia, Zwirner
uttered a racial epithet and made a lewd gesture.
As courts have generally agreed, "it seems clear enough that
to bring a claim within § 3617, a plaintiff must allege conduct
on the part of a defendant which in some way or other implicates
the concerns expressed by Congress in the FHA. If it were
otherwise, the FHA would federalize any dispute involving
residences and people who live in them. Nothing in the statute
or its legislative history supports so startling a proposition."
24 I d . at 904 (quoting United States v. Weiz, 914 F. Supp. 1050,
1054 (S.D.N.Y. 1996)); see also Egan v. Schmock, 93 F. Supp. 2d
1090, 1093 (N.D. Cal. 2000) (Congress did not intend § 3617 to
cover any discriminatory conduct interfering with a person's
quiet enjoyment of his or her home, otherwise "any dispute
between neighbors of different races or religions could result in
a lawsuit in a federal court under the FHA.").
That is not to say that only shockingly severe and violent
conduct will meet the threshold requirements of a § 3617 claim.
One can imagine a moderate level of intentional and persistent
nuisance behavior, motivated by racial or religious animus, and
directed at a victim over a sufficient period of time that might
prove so disruptive and coercive as to warrant relief under
§ 3617. See, e.g., Ohana, 996 F. Supp. at 241-42. But this is
not such a case, at least not on this record.
To reiterate, the pending motion is one for summary
judgment, and broad-form conclusory allegations will not suffice.
Facts, from which a violation could be found by a reasonable
jury, must be identified if summary judgment is to be avoided.
25 Notwithstanding ample opportunity to do so, plaintiffs have
failed to point to evidence supporting the existence of genuinely
disputed material facts or a trial-worthy issue on their § 3617
claim.
While there can be little doubt that the Taals and the
Zwirners did not get along, and that on at least one occasion
defendant's husband, Douglas Zwirner, resorted to racial epithets
and lewd gestures, that is not enough to establish an FHA claim
under § 3617. Congress did not intend the FHA to provide a
remedy for every sguabble, even continuing sguabbles, between
neighbors of different races. Broad-form claims aside, nothing
plaintiffs have presented suggests the type of conduct intended
to be covered by § 3617.
As noted in Santiago v. Canon U.S.A., Inc., 138 F.3d 1, 6
(1st Cir. 1998), subjective characterizations and perceptions of
discriminatory conduct are not enough to avoid summary judgment.
The "district court cannot accept, on faith, conclusory
assessments by claimants that unspecified and unattributed
epithets were 'derogatory' and 'denigrating, ' let alone
26 demonstrated discriminatory intent." Id. Bare conclusory
allegations, parroted without elaboration in a Rule 56 proffer,
do not suffice to identify either the nature of the acts
complained of, the pertinent facts, or the identity or motive of
the actors. I d . at 5. "The object of [Fed. R. Civ. P. 56(e)] is
not to replace conclusory allegations of the complaint or answer
with conclusory allegations of an affidavit." I d . at 6 (guoting
Jones v. Merchants Nat'l Bank & Trust Co., 42 F.3d 1054, 1059
(7th Cir. 1994) ) .
There being no genuine dispute as to any material fact, and
defendant being entitled to judgment as a matter of law on the
undisputed facts of record, summary judgment is granted in favor
of defendant Patricia Zwirner on plaintiffs' claims under the
Fair Housing Act.
III. State Law Claims.
To the extent the amended complaint might be construed to
assert state law causes of action, the court declines to exercise
supplemental jurisdiction over those claims. See Camelio v.
American Fed'n, 137 F.3d 666, 672 (1st Cir. 1998).
27 Conclusion
The court is well aware of the difficulties faced by pro se
litigants as they attempt to pursue legal claims in federal
court. And, mindful of those difficulties, the court has
extended plaintiffs every reasonable opportunity to develop their
case - perhaps to the detriment and, no doubt, substantial added
expense, of defendants. At this point, however, it is clear that
affording plaintiffs additional time and/or discovery in an
effort to shore up their unsupported claims would prove futile.
On this record, it is plain that the sole remaining defendant,
Patricia Zwirner, is entitled to judgment as a matter of law on
all of plaintiffs' federal claims against her.
Defendant Patricia Zwirner's motion for summary judgment
(document no. 124) is granted in part and denied in part. As to
the federal claims asserted against her, Zwirner is entitled to
judgment as a matter of law. To the extent plaintiffs'
complaint might be read to allege state law claims against
Zwirner, the court declines to exercise its supplemental
jurisdiction, and those claims are dismissed. The Clerk of Court
28 shall enter judgment in accordance with this order and close the
case.
SO ORDERED.
Steven J. McAuliffe United States District Judge
March 22, 2004
cc: Baboucar B. Taal, pro se Guylaine L. Taal, pro se Wilfred J. Desmarais, Jr., Esg. Russell F. Hilliard, Esg. Christopher J. Pyles, Esg.