United States District Court, D. South Dakota, Southern Division
MEMORANDUM OPINION AND ORDER
LAWRENCE L. PIERSOL UNITED STATES DISTRICT JUDGE.
Daniel Loring ("Loring") brought this pro se
lawsuit against the United States for the alleged misconduct
of two Assistant United States Attorneys in their handling of
an earlier civil lawsuit filed under the Fair Housing Act on
Loring's behalf. Loring filed a motion for summary
judgment in this case. (Doc. 14.) Defendants filed a motion
to dismiss. (Doc. 23.) Having carefully considered the entire
record, the Court will grant Defendants' motion to
dismiss in part and deny it in part. Loring's motion for
summary judgment will be denied.
case arises out of a Fair Housing Act lawsuit filed on August
28, 2015 by the United States on behalf of Loring alleging
that the owners of Loring's apartment improperly
discriminated against Loring, who is an individual with a
disability because he required the use of a wheelchair due to
an injury. See CIV 15-4137, Doc. 1. This unlawful
discrimination ultimately resulted in the eviction of Loring
from the apartment and an unfavorable rental reference from
the owners. Loring was unable to find permanent housing as a
result. The United States alleged that the apartment
owners' violations were intentional, willful, and taken
in reckless disregard of Loring's rights. The Complaint
sought injunctive relief against the owners to prohibit them
from continuing their discriminatory practices against
individuals with disabilities, to order them to take any
affirmative steps necessary to restore Loring to the position
he would have been in but for the discriminatory conduct, and
to take such steps as would be necessary to prevent the
recurrence of any discriminatory conduct in the future. The
lawsuit also sought an award of monetary damages to Loring
pursuant to 42 U.S.C. §§ 36l2(o)(3) and 3613(c)(1).
had the right to obtain a private lawyer of his choice to
represent him in the Fair Housing Act case, but he never did
so. Loring also had the right to intervene in the Fair
Housing Act case. See42 U.S.C. §
36l2(o)(2)(" Any aggrieved person with respect to the
issues to be determined in a civil action under this
subsection may intervene as of right in that civil
action."). Loring never intervened.
over two years of litigation, the parties to the Fair Housing
Act case reached a settlement in November 2017. (Doc. 1-11 at
96-102, Executed Settlement Agreement.) The owners agreed to
pay Loring $20, 000 in exchange for a release of all claims
against them. (Id. at 98, ¶ 8.) The Settlement
Agreement noted that the apartments had been sold and that
none of the defendants were in the business of owning or
managing residential property to which the Fair Housing Act
applies. (Id. at 98, ¶ 11.) The district court
dismissed the Fair Housing Act case on November 27, 2017.
See CIV 15-4137, Doc. 23.
filed this lawsuit against the United States on April 3,
2018. (Doc. 1.) In his Complaint and its attachments, Loring
asserts numerous claims against his lawyers in the underlying
litigation in their roles as Assistant United States
Attorneys. He claims, among other things, that the lawyers
made misrepresentations, had conflicts of interests, colluded
with the defense attorney, threatened him, and otherwise
mishandled his Fair Housing Act case and its settlement.
Loring contends these acts by the lawyers violated their
obligations to him, caused him even more harm than the
housing discrimination, and induced him to accept a less
advantageous settlement in that case. Loring asserts and
Defendants do not deny that he filed an administrative claim
for the issues he raises in this Complaint.
have moved for dismissal under both Federal Rule of Civil
Procedure 12(b)(1) for lack of subject matter jurisdiction
and Rule 12(b)(6) for failure to state a claim on which
relief can be granted.
party asserting subject matter jurisdiction has the burden of
proving that jurisdiction is proper. VS Ltd. P'ship
v. Dep't of Hous. and Urban Dev., 235 F.3d 1109,
1112 (8th Cir. 2000) (citing Nucor Corp. v. Nebraska Pub.
Power Dist., 891 F.2d 1343, 1346 (8th Cir. 1989)).
"The district court has the authority to consider
matters outside the pleadings on a motion challenging subject
matter jurisdiction under Federal Rule of Civil Procedure
12(b)(1)." Drevlow v. Lutheran Church, Mo.
Synod, 991 F.2d468, 470 (8thCir. 1993) (citing
Osborn v. United States, 918F.2d724');">918F.2d724, 729 (8th Cir.
1990)). "Because jurisdiction is a threshold issue for
the court, the district court has 'broader power to
decide its own right to hear the case than it has when the
merits of the case are reached.' "Bellecourt v.
United States, 994F.2d427, 430 (8thCir. 1993) (quoting
Osborn, 918F.2d at 729).
reviewing a motion to dismiss under Rule 12(b)(6), a court
must accept as true all factual allegations contained in the
complaint, and review the pleading to determine whether its
allegations show the pleader is entitled to relief. See
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555
(2007); Fed.R.Civ.P. 8(a)(2). The purpose of a motion to
dismiss for failure to state a claim is to test the legal
sufficiency of the pleading. A complaint must be dismissed
under Rule 12(b)(6) if it does not plead "enough facts
to state a claim to relief that is plausible on its
face." Twombly, 550 U.S. at 570 (abrogating the
traditional 12(b)(6) "no set of facts" standard set
forth in Conley v. Gibson, 355 U.S. 41, 45-46
(1957)). While the complaint need not provide specific facts
in support of the claims contained therein, it must give the
defendant fair notice of the claims and the grounds on which
the claims rest. See Erickson v. Pardus, 551 U.S.
89, 93 (2007) (per curiam). This obligation requires a
plaintiff to plead "more than labels and conclusions,
and a formulaic recitation of the elements of a cause of
action will not do." Twombly, 550 U.S. at 555.
Supreme Court elaborated on the less stringent pleading
standard for pro se litigants in Erickson v. Pardus:
"A document filed pro se is to be liberally construed,
and a pro se complaint, however inartfully pleaded, must be
held to less stringent standards than formal pleadings
drafted by lawyers." 551 U.S. at 94 (internal citations
and quotation marks omitted).
of the Federal Rules of Civil Procedure provides that summary
judgment shall be granted "if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law."
Fed.R.Civ.P. 56(a). The moving party bears the burden of
showing both the absence of a genuine issue of material fact
and its entitlement to judgment as a matter of law.
Fed.R.Civ.P. 56(a); Anderson v. Liberty Lobby, Inc.,477 U.S. 242, 256-257 (1986). Once the moving party has met
its burden, the non-moving party may not rest on the
allegations of its pleadings but must set forth specific
facts, by affidavit or other evidence, showing that a genuine
issue of material fact exists. Fed. R. Crv. P. 56(c);
Anderson, 477 U.S. at 257; City of Mt. Pleasant
v. Associated Elec. Coop., Inc.,838 F.2d 268, 273-74
(8th Cir. 1988). In ruling on a motion for summary judgment,
the Court is required to view the facts in the light most
favorable to the non-moving party and must give that party
the benefit of all reasonable inferences to be drawn from the
underlying facts. AgriStor Leasing v. Farrow, 826
F.2d 732, 734 (8th Cir. 1987). All facts presented to the
district court by the non-moving party are accepted as true
if properly supported by the record. See Beck v.
Skon,253 F.3d 330, 332-33 (8th Cir. 2001). Moreover,
"at the summary judgment stage the judge's function
is not himself to weigh the evidence ...