Spring 2018

Pro Se Plaintiff Gives a New Meaning to “Creating a Federal Case” in West Virginia

Throughout our day to day activities in our professional lives, we have all heard of the mythical set of operative facts wherein someone seeks to take a simple proposition and turn it into a federal case.  Such factual scenario existed in West Virginia for a Franklin & Prokopik client.  The factual background of the matter dealt with the client who owned, operated, and maintained a rather large residential complex which catered to residents who were retired, disabled, or beneficiaries under several federal government entitlement programs.  The tenant/plaintiff in this matter was a retiree who represented that he had been a building inspector in the “city” prior to his retirement.

The plaintiff ’s tenancy at the client’s property began like many tenants, in that the plaintiff became involved in several of the activities and groups maintained at the facility and began to inform management of certain deficiencies within the building and site layout, including parking areas.  One day, the plaintiff complained because a service contractor’s vehicle was parked in a handicapped spot temporarily, and the plaintiff had to park in another space.  The plaintiff demanded that the client vigorously enforce handicap parking so that this would not happen again.  Ironically, several days later, the plaintiff parked in a handicapped space and failed to properly display his handicap placard, and his vehicle was towed from the site.  As a result of the citation and fine, the plaintiff began to argue and make complaints to local, state, and federal government agencies regarding his perceived deficiencies in the client’s facilities.  Ultimately, the plaintiff, in a pro se capacity, filed suit against F&P’s client in the United States District Court for the Northern District of West Virginia and alleged violations of the Fair Housing Amendments Act and the Americans with Disability Act, which included a reasonable accommodation claim and a design and construction claim.  As one can imagine, upon receipt of the Complaint, a motion to dismiss was filed with the District Court, which requested that the District Court dismiss the plaintiff ’s complaint for failure to state a claim upon which relief can be granted under Rule 12(b)(6).

After substantive briefing on these matters, which included multiple unpermitted supplementations by the plaintiff wherein he alleged numerous violations beyond the scope of the complaint as initially pled, which included allegations of intentional pest infestation and surreptitious surveillance of the plaintiff by the client, the District Court granted the Motion to Dismiss.  Specifically, the District Court found that the plaintiff ’s complaint failed to detail a request for an accommodation, or that the proposed accommodation was reasonable for the requisite link necessary between his alleged disability and the proposed accommodation.  Moreover, the District Court dismissed the design and construction claim by finding that the plaintiff made no allegations that invoked the time requirement and the occupancy requirement necessary under the applicable federal statute.  Despite the thorough analysis and dismissal of the plaintiff ’s claims by the District Court, the plaintiff, who could be characterized as persistent, decided that he would appeal the Memorandum Opinion and Order, granting the Motion to Dismiss to the United States Court of Appeals for the Fourth Circuit.  To the astonishment of everyone, except probably the plaintiff, the United States Court of Appeals for the Fourth Circuit granted the plaintiff ’s appeal of the District Court’s Order, and fortunately determined that the nature of this matter was better served by the court’s informal briefing process.  Thus, the matter was fully briefed to the United States Court of Appeals for the Fourth Circuit, and by unpublished per curium opinion, the United States Court of Appeals for the Fourth Circuit affirmed the District Court’s ruling, and held that oral argument would not aid in the decisional process of the matter based on the facts and legal contentions presented in the materials.

Interestingly, the litigation process in the federal court system took such a lengthy time, that the plaintiff decided on his own accord, to vacate the client’s facility, and move to another location.  The plaintiff ’s decision to move to another facility seemed to be the end of a rather lengthy and costly appeal to the Fourth Circuit.  However, several months after the Fourth Circuit’s Order became final, the plaintiff decided to bring an action in state court against not only the client, but the property manager in their individual capacity.  As one could foresee, this action was definitely an action that was brought on a personal level and was one that needed to be contained and dealt with as quickly as possible.  To that end, another motion to dismiss was drafted and a hearing on the same was held in state court.  The State Court, having given an appropriate amount of deference to the plaintiff as a pro se party, finally made rulings regarding the credibility of all witnesses, and under the doctrines of res judicata and collateral estoppel dismissed the plaintiff ’s claims and awarded judgment in favor of F&P’s client.  The state court further deplored the plaintiff regarding any future actions on these matters whether it be in state court or federal court.  The take away from this experience is two-fold.  First, the claims and defenses associated with this client resonates with all who try to manage claims, and the risks associated therewith.  Second, it underscores the fact that all claims, and specifically pro se claims, however far reaching one may believe they are, should be dealt with in a timely and appropriate fashion so that they do not become litigation that takes on a considerable life of its own.

For more information about this article please contact Gregory E. Kennedy at 304.596.2277 or