UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

FRANK C. BRIGGS,

Plaintiff,

v. Civil Action No. 23-cv-116 (TSC)

JAMES D. CAMPBELL, et al.,

Defendants.

MEMORANDUM OPINION

Plaintiff Frank Briggs and his mother Jennie Briggs sued several individuals involved in

running and maintaining their rental apartments in Southwest D.C. Plaintiffs allege they have

been forced to live in uninhabitable conditions and were discriminated against based on race and

disability. Defendants moved to dismiss on all counts. Having considered the record and the

briefs, the court will GRANT Defendants’ Motion.

I. BACKGROUND

Plaintiffs—both of whom are Black--are a disabled mother and her son who have lived at

Channel Square Apartments in Southwest D.C. since 1996. Am. Compl., ECF No. 11 at 4, 12.

Plaintiffs have not had a positive rental experience. They allege that their apartments contain

“every D.C. Code Violation imaginable,” including a leaking bathroom ceiling; a crack in the

living room wall; asbestos; kitchen cabinets falling; outdated flooring; and a noisy convector. Id.

at 4–6. Plaintiffs allege that for the last ten years, they have been asking Defendants to fix these

issues, with little success. See id. at 6–9, 11–12. Plaintiffs have also encountered problems

working with Defendants to sign up for rental assistance programs and obtain an insurance

payout related to the kitchen cabinets falling and breaking valuable items. Id. at 13–18.

Page 1 of 9 Plaintiffs filed this action pro se on January 13, 2023. See Compl., ECF No. 1.

Defendants moved to dismiss, ECF No. 2, but the court subsequently allowed Plaintiffs to file an

Amended Complaint and denied the motion to dismiss as moot, Min. Order, April 12, 2023. In

their Amended Complaint, Plaintiffs bring eight claims: four for violations of federal criminal

laws (Counts I, VI, VII, and VIII); one for a violation of the Fair Housing Act (“FHA”) (Count

II); and three for violations of D.C. housing laws (Counts III, IV, and V). Am. Compl. at 52–63.

Plaintiffs seek $100 million in damages along with declaratory and injunctive relief requiring

Defendants to relocate Plaintiffs to apartments of their choosing while they make necessary

improvements to Plaintiffs’ apartments. Id. at 51–52, 64–66.

Defendants renewed their motion to dismiss, ECF No. 12.

II. LEGAL STANDARD

Under Federal Rule of Civil Procedure 12(b)(6), a defendant may move to dismiss a

complaint for “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P.

12(b)(6). “To survive a motion to dismiss, a complaint must contain sufficient factual matter,

accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal,

(2009) (citation omitted). In other words, the plaintiff must plead “factual content

that allows the court to draw the reasonable inference that the defendant is liable for the

misconduct alleged.”

(citation omitted).

In deciding a motion to dismiss, the court presumes the truth of the factual allegations in

the complaint and affords the plaintiff “every favorable inference that may be drawn from the

allegations of fact.” Laughlin v. Holder,

, 208–09 (D.D.C. 2013) (citing

Scheuer v. Rhodes,

(1974)). The court does not, however, “accept as true ‘a

legal conclusion couched as a factual allegation,’ nor inferences that are unsupported by the facts

set out in the complaint.” Id. at 209 (citation omitted). Page 2 of 9 III. ANALYSIS

A. Criminal Law Claims

In Counts I, VI, VII, and VIII, Plaintiffs allege that Defendants violated criminal

statutes—18 U.S.C. §§ 241, 242, 371, 1341. Am. Compl. at 52–54, 59–63. Section 241

provides for criminal punishment “[i]f two or more persons conspire to injure, oppress, threaten,

or intimidate any person . . . in the free exercise or enjoyment of any right or privilege secured to

him by the Constitution or laws of the United States.”

. Similarly, § 242

prohibits “the deprivation of any rights, privileges, or immunities secured or protected by the

Constitution or laws of the United States” when the perpetrator acts “under color of” law. Id.

§ 242. Section 371 provides for criminal punishment “[i]f two or more persons conspire either to

commit any offense against the United States, or to defraud the United States . . . and one or

more of such persons do any act to effect the object of the conspiracy.” Id. § 371. And § 1341

criminally punishes financial fraud schemes. Id. § 1341.

These statutes, however, do not create private causes of action. See, e.g., Keyter v. Bush,

No. 04-5324,

, at *1 (D.C. Cir. 2005) (explaining that criminal statutes “do not

convey a private right of action”); accord Al-Tamimi v. Adelson, No. 16-cv-445,

, at *5 (D.D.C. Feb. 23, 2024). Because none of the criminal statutes create private rights

of action, Defendants’ motion to dismiss Counts I, VI, VII, and VIII will be granted. See e.g.,

Boling v. U.S. Parole Comm’n,

(D.D.C. 2017), aff’d, No. 17-5285,

(D.C. Cir. Dec. 19, 2018) (dismissing criminal statute-based claims in civil action

for lack of subject matter jurisdiction); Al-Tamimi,

, at *5.

B. FHA Claim

In Count II, Plaintiffs allege that Defendants violated the FHA because their harmful

housing practices are discriminatory. Am. Compl. at 54–56. Plaintiffs, however, cite the Page 3 of 9 entirety of the FHA—and no specific provision of the FHA—in their Complaint. Because

Plaintiffs proceed pro se, and the court liberally construes pro se pleadings, it first determines the

type of FHA claim Plaintiffs bring. See Erickson v. Pardus,

(2007) (“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.”

(citations omitted)).

Although the FHA primarily addresses housing availability, rather than habitability, the

D.C. Circuit has noted that

(b) is “directed at those who provide housing and

then discriminate in the provision of attendant services or facilities.” Clifton Terrace Assocs. v.

United Techs. Corp.,

(D.C. Cir. 1991). The court will therefore construe

Count II as a claim under § 3604(b). Moreover, because Plaintiffs cite

, see

Am. Compl. at 54–55, which provides that FHA liability may be “based on a practice’s

discriminatory effect . . . even if the practice was not motivated by a discriminatory intent,” but

also refer to Defendants’ actions as “disparate treatment,” the court will analyze Plaintiffs’ claim

under both the disparate impact and disparate treatment frameworks.

Plaintiffs’ first obstacle is that, even though § 3604(b) does “address habitability,” Clifton

Terrace Assocs.,

, it is not clear that Plaintiffs’ claim that Defendants failed to

maintain the premises is cognizable. Section 3604(b) provides that it is unlawful “[t]o

discriminate 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, or national origin.” The D.C. Circuit has not decided the

scope of § 3604(b), but several Circuits have held that § 3604(b) covers post-acquisition

discrimination claims only if they are connected to the initial sale or rental of the dwelling or

Page 4 of 9 constitute constructive eviction. See, e.g., Cox v. City of Dallas,

(5th Cir.

2005); Southend Neighborhood Improvement Ass’n v. St. Clair Cnty.,

, 1209–10

(7th Cir. 1984); Ga. State Conf. of the NAACP v. City of LaGrange,

(11th Cir.

2019). But see Comm. Concerning Cmty. Improvement v. City of Modesto,

(9th Cir. 2009) (applying a broader test).

Under the Circuits’ consensus test, Plaintiffs’ FHA claim is unlikely to be cognizable

under § 3604(b). For one thing, Plaintiffs’ allegations are not connected to the initial 1996 rental

of the dwelling. And, for another, Plaintiffs have not left the premises. Am. Compl. at 4.

“Absent departure from the premises, a tenant has great difficulty in claiming a ‘constructive

eviction’ equivalent to the actual physical interference with [their] possessory rights.” Sobelsohn

v. Am. Rental Mgmt. Co.,

(D.C. 2007). The court need not decide whether

Plaintiffs’ maintenance allegations are covered by § 3604(b), however, because Plaintiffs have

failed to state a claim either way.

Even if a failure to maintain the premises is cognizable under § 3604(b), Plaintiffs do not

state a claim for disparate impact or disparate treatment. “To survive a motion to dismiss a claim

of disparate impact under the FHA . . . a plaintiff must allege that a facially neutral practice or

policy has a disproportionate impact on persons” in a protected class. Boykin v. Fenty,

(D.C. Cir. 2016); see

(a) (“A practice has a discriminatory

effect where it actually or predictably results in a disparate impact on a group of persons or

creates, increases, reinforces, or perpetuates segregated housing patterns because of” the

plaintiff’s protected class); see also Tex. Dep’t of Hous. & Cmty. Affs. v. Inclusive Cmtys.

Project,

, 537–39 (2015) (disparate impact claims are cognizable under the FHA).

Plaintiffs, however, have not alleged that Defendants have a “practice or policy” of failing to

Page 5 of 9 maintain apartments or that the policy or practice has a disparate impact on persons in a

protected class. Regarding policy or practice, Plaintiffs have pleaded only that Defendants failed

to maintain their apartments—not that Defendants have a “facially neutral practice or policy” of

failing to maintain apartments in general. Boykin,

; see Am. Compl. at 55

(“Defendants’ policy and practice of denying Plaintiffs’ total repair of all code violations . . . is

disparate treatment.”).

Plaintiffs have also not pleaded disparate impact. In Boykin, a panel of the D.C. Circuit

granted a motion to dismiss an FHA claim because plaintiffs “alleged only that some of them”

belong to a protected class and that defendant’s actions “ma[de] it more difficult for those

[plaintiffs] to obtain services.”

. “Allegations about [plaintiffs’] individual

experiences . . . however, say nothing about whether [defendants’ actions] had a disparate impact

on persons [in that protected class] as opposed to persons [not in that protected class].”

By

contrast, in National Fair Housing Alliance v. Travelers Indemnity Co.,

, 33–

34 (D.D.C. 2017), the court concluded that plaintiff did state an FHA claim because they “did

not just allege that some voucher recipients are members of a protected class, but rather pleaded

facts that show that voucher recipients are significantly more likely to be members of a protected

class than is true for the D.C. population as a whole.” In fact, plaintiff’s complaint included a

“statistical analysis” of the “relevant geographic region.”

; accord Alexander v.

Edgewood Mgmt. Corp., 15-cv-1140,

, at *4 (D.D.C. July 25, 2016) (plaintiff

stated a disparate impact claim because he included statistics in his complaint). Plaintiffs’

Complaint is similar to the complaint in Boykin, not those in Travelers and Alexander, because

Plaintiffs have not alleged that Defendants’ actions had a disparate impact on Black or disabled

Page 6 of 9 tenants as opposed to White or able-bodied tenants. Nor have Plaintiffs supported their

allegations with statistics.

Finally, Plaintiffs have not stated a claim for disparate treatment. “To state a claim of

disparate treatment,” Plaintiffs “needed to allege that ‘the defendant intentionally discriminated

against them on the basis of’” their protected class. Boykin,

(citation

omitted). In Boykin, the panel affirmed the district court’s dismissal of plaintiffs’ disparate

treatment claim because, although the “complaint describe[d] the race of each [plaintiff], and

state[d] that [defendant’s] program [wa]s ‘an excuse for closing the shelters in the predominantly

white parts of the city,’” it did not “contain allegations” to make out plaintiffs’ theory that

closing the shelter was “part of an effort to move predominantly minority homeless persons”

from White neighborhoods into minority neighborhoods.

at 44–45. Plaintiffs here have pled

far less than plaintiffs in Boykin: all they have alleged is that they are both Black and one of them

is disabled, Am. Compl. at 12, and that Defendants’ failure to maintain Plaintiffs’ apartments “is

disparate treatment,”

. But the court does not accept as true the legal conclusions in the

Complaint. Laughlin, 923 F. Supp. 2d at 208–09 (citation omitted). And “[e]ntirely missing are

any factual allegations that would support” Plaintiffs’ allegation “of intentional discrimination

based on race” or disability. Boykin v. Gray,

(D.D.C. 2012).

In sum, Plaintiffs have failed to state a claim for a violation of the FHA. Because

Plaintiffs proceed pro se, and may be able to plead additional facts that state a claim for relief,

the court will dismiss Count II without prejudice.

C. D.C. Law Claims

Finally, the court does not have original jurisdiction over Counts III, IV, and V—the D.C.

law claims—and will decline to exercise supplemental jurisdiction over these claims.

Page 7 of 9 The court does not have federal question jurisdiction over these claims because they

allege violations of D.C. law, not federal law. Count V names the Declaratory Judgment Act in

alleging a violation of the D.C. Human Rights Act, Am. Compl. at 57–59, but the Declaratory

Judgment Act does not create an independent basis for federal question jurisdiction, Skelly Oil

Co. v. Phillips Petroleum Co.,

, 671–72 (1950). Nor does the court have diversity

jurisdiction over any of the local law claims. To have diversity jurisdiction, a plaintiff must

establish diversity of citizenship and an amount in controversy exceeding $75,000.

(a). Diversity of citizenship is assessed at the time of filing, see Smith v. Sperling,

, 93 n.1 (1957), and requires “complete diversity,” which means that no plaintiff and

defendant can be from the same state, Newman-Green, Inc. v. Alfonzo-Larrain,

(1989). Plaintiffs cannot establish complete diversity because Plaintiffs and several

Defendants all reside in the District of Columbia. Am. Compl. at 1, 13. Thus, the court does not

have original jurisdiction over any of the local law claims.

When a “court has dismissed all claims over which it has original jurisdiction,” it “may

decline to exercise supplemental jurisdiction over” any additional claims.

(c)(3). Consequently, the court will dismiss without prejudice the local law claims. See

Edmondson & Gallagher v. Alban Towers Tenants Ass’n,

, 1263 (D.C. Cir. 1995)

(federal courts may dismiss without prejudice claims requiring supplemental jurisdiction after

original jurisdiction claims are dismissed).

Page 8 of 9 IV. CONCLUSION

For the foregoing reasons, the court will GRANT Defendants’ Motion to Dismiss, ECF

No. 12. An Order will accompany this Memorandum Opinion.

Date: March 20, 2024

Tanya S. Chutkan TANYA S. CHUTKAN United States District Judge

Page 9 of 9