The (Serious) Return of Fielding Mellish
Hilary
totally defeated. So I started to clean the house and--this is an
answer to a question a poster posed on another thread--started
thinking of why I ever thought I could handle a case pro se to begin
with, and then I thought of Scripture. I am not religious but love and
make a hobby of Judeo-Christianity for the reason it's the only
tradition in the world with one real-life sad-sack misunderstood
genius after another. I couldn't exist without it.
But I was still depressed by all the lies and the lying liars that
tell them, and also by the fact (trust me) this judge really does not
like me. He is a self-righteous WASP; I'm a Great Unwashed Ethnic
Babba. It's like that judge on The Practice who kept throwing Elinor
in jail just for opening her mouth. (The former judges in my case,
including the ninety-year-old spry eponymous judge, are regular Joes,
even though one has a federal courthouse named after him.) Anyway, if
Sir Galahad adjudicates, I *definitely* am already down the crapper
(you would have to be Pennsylvanian to understand this), so it doesn't
matter if I say so here. I would like to ask at the scheduling
conference that a magistrate judge not hear this case, but that might
take me out of consideration for ADR--if my Central European butt
isn't thrown out long before ADR enters the picture.
I figured, well, just do your due diligence and Let It Be. So I got
the ball rolling and sent the first set of Interrogatories and First
Request for Admissions, which required only minor editing after having
been worked on all summer, to opposing counsel. Then I had to confront
the most seriously unfunny thing of all: I am the best witness for my
case. I have many more witnesses and much more evidence (albeit mostly
circumstantial) than I thought I would when this all started. If I had
any other judge besides the one I have, I actually might feel a little
confidence.
How in the name of suffering Christ do you cross-examine yourself? How
do you get direct testimony from yourself? A judge with this much ice
in his veins will cut me off at the knees, because I begged him not to
hold my education against me by denying me an attorney, and he
responded that I'm "well-educated." I realize most of the posters here
are either attorneys or affiliated with the profession in some way, or
at least haven't represented themselves. But where else am I going to
ask this question on the Internet in a forum with even one-tenth the
level of erudition as on this one? There is no other. So if anyone has
any idea how you could be Fielding Mellish--in front of a judge who is
a combination of fubar Henry James, fubar T.S. Eliot, and any run-of-
the-mill prig out of a Jane Austen novel--and put yourself on the
stand, I would definitely appreciate hearing from you. (You may think
I'm over-the-top theatrical here and have even outdone myself, but you
haven't seen the Orders oozing sarcasm or the contempt to be read
between the lines.)
If you think I'm being fabulous, please--let me save you the trouble
of posting the helpful suggestion that I run not walk to my Lithium
dispensary. Done, and Done. I really need to know how to defend your
case when you've inferred enough prejudice to want to throw in the
towel, but when you know you'd make one hell of a witness for the
plaintiff. A pro se can't be *just* her own lawyer. She has to be a
witness too.
Thank you.
-Barry-
> much more evidence (albeit mostly
> circumstantial) than I thought I would when this all started.
> How in the name of suffering Christ do you cross-examine yourself?
You can always request to add more written evidence, including
affidavits of Hilary. Sounds like you're in the middle of discovery so
a special request to add evidence isn't even necessary. And you'll
have your closing argument (expect to be interrupted). But I've never
reached this stage and haven't seriously researched it.
Cy Pres
<hilaryje...@yahoo.com> wrote:
>How in the name of suffering Christ do you cross-examine yourself?
You would NEVER cross examine yourself. Cross examination is to
ATTACK a witness. Why would you want to attack yourself?
>How
>do you get direct testimony from yourself?
You wouldn't. You'd give a narrative explanation of things as best
you could. This is one of the more difficult things about pro se
trial practice, because you don't get the advantage of the question
and answer format, and standing there asking yourself questions just
makes you look like a lunatic.
Write it up in advance and practice it, but try not to stand there
just reading from written notes, because it bores the audience. But
you should probably wait until you actually have a trial date to worry
about it much, because dismissal or summary judgment is your real
concern at the moment.
Bob
<hilaryje...@yahoo.com> wrote:
[snip]
>If I had
>any other judge besides the one I have, I actually might feel a little
>confidence.
I suggest you find things about the judge to like rather than focus on
your perception that he dislikes you. When I was in law school, I
always tried to find out more about my professors so I could please
them. They controlled my grades. Pleasing them was in my
self-interest. Same thing is true for your judge. That doesn't mean
you have to be a sycophant, but trying to understand his point of view
would be helpful.
>How in the name of suffering Christ do you cross-examine yourself? How
>do you get direct testimony from yourself?
It may be awkward but you can examine yourself, and you will have to
if you testify. It's unlikely you'll have to cross-examine yourself
because the defense is unlikely to call you as a witness.
The exact procedure may be dictated by your trial judge (which
probably won't be the judge you have now), but it is all doable.
If you find you're not cooperating with yourself on the stand, you can
always ask the judge to allow you to treat yourself as a hostile
witness. :-)
If my guess is correct and the defense files a motion for summary
judgment, and if you manage to defeat the motion, there's a reasonable
likelihood (not a certainty) that the defense will want to settle. If
you reach a settlement, there, of course, won't be a trial.
grendal
> If you think I'm being fabulous, please--let me save you the trouble
> of posting the helpful suggestion that I run not walk to my Lithium
> dispensary. Done, and Done. I really need to know how to defend your
> case when you've inferred enough prejudice to want to throw in the
> towel, but when you know you'd make one hell of a witness for the
> plaintiff. A pro se can't be *just* her own lawyer. She has to be a
> witness too.
>
Hilary,
I don't know how much clearer anyone can be than Mike Jacobs.
You don't listen to me, and it appears that you're not listening to
Mike as well.
You created this 'nightmare' and now you act as if everyone is out to
get you.
Everyone is a racist. You have to fake being gracious. You're out to
solve the injustices of the world.
That your case really isn't about you and a noisy neighbor complaint,
but that nobody but a fellow person who suffers from Clinical
Depression and PTSD understand you.
I do understand you Hilary, and from the start I tried to tell you to
walk away because 1) You haven't demonstrated that you have a case,
and 2) that even if you did have a case, the mental health cost of
going to trial isn't worth it.
The defense lawyers are doing their job. The judge is doing his job
and it may be that he's losing his patience with you. There's no
prejudice there on either part.
(In fact, you're the one who is making slurs in depicting the judge as
a WASP).
As Mike, I and others have pointed out, you need to be objective and
look at the case from the outsider's perspective.
This case boils down to a simple thing. You and a neighbor had an
issue over a noise complaint. You're trying to make a federal case out
of it. Literally, that's it in a nutshell.
Look at what you're asking for. In your hypothetical complaint, you
ask for less money than what the apartment complex has probably
already paid out to their attorneys and an impractical and
unrealistic demand on the state agency. You're saying that you were
wronged by both the complex and the state agency and that this case
really isn't just about you but that you're trying to correct an
injustice against all those who suffer from PTSD and Clinical
Depression.
I'm sorry I've lost my patience with you because of your histrionics.
I'm a frequent poster because for every issue you raise and every
attempt you make to prolong your case, you are increasing the amount
of pain you are suffering. You are causing your own torture and I
think that while there are those who are trying to help you understand
the legal process, you're losing sight of the larger issue. The toll
this endeavor is going to take on you.
Its as if you are hell bent on a self destructive path so that you
can play the role of the martyr and find fault with everyone but
yourself.
Sorry but I think its more important to hit you with the harsh cold
reality than to molly coddle you and give you false hope.
-G
-Barry-
> I think its more important to hit you with the harsh cold
Nothing you said above explains why she doesn't have a case. If she
does, I think the fight is worth it considering the effort she's put
in to it so far. It actually sounds like her work is about done.
People like to emphasize that pro se litigants will probably lose, but
from what I've read from reliable sources, all you need is to be on
the right side of the law and you'll probably win. Quality of council
accounts for far less than 50% of the chances of winning.
Hilary
Could or would you be willing to write about your case here, on mlm,
in summarized form?
Barry Gold
Some cites on that would be nice. But if true, it's good news for our
legal system as a whole.
As to why Grendal thinks Hilary doesn't have a case, you'd have to go
back through the archives of this newsgroup. Here's a summary of what
she said in the past, as well as I can recall:
1. Hilary suffers from PTSD, which has left her with hyper-acusis,
an abnormal sensitivity to noise. (My wife suffers from this on
occasion, so I have some idea what it's like.) That is, indeed a
disability, though whether it's one that is covered by the ADA I'm
not sure.
2. She was living in some sort of apartment building, with
government rent assistance of some sort.
3. One of her neighbors likes to watch TV, and keeps the volume
rather loud. Not _extremely_ loud, and not at 2AM or anything,
but still it makes life difficult for her.
4. She asked for the landlord to do something about the noisy
neighbor.
5. The landlord (corporation) said they couldn't do anything,
and offered to let her out of her lease instead. She
accepted this offer.
6. She then complained to her state's housing agency, and they
"blew her off" with some rather brusque and perhaps not-nice
language.
So, here's the problem. While she _does_ have a disability, the ADA
does _not_ require that the landlord solve her problem. It is up to
_her_ to come up with an accomodation that will let her make use of
the facilities (the housing, in this case). And the accomodation she
requests must be _reasonable_. Asking them to spend twice the normal
cost of an apartment to build her a soundproof cage isn't going to cut
it. Neither is asking the neighbor to move, because while the noise
bothers her, it wouldn't bother the mythical "reasonable man", so it's
not disturbing the peace. The neighbor is _also_ entitled to "quiet
enjoyment" of _his_ apartment. Nothing she posted suggests that she
came up with a reasonable accomodation that was refused.
So, legally I'm guessing she doesn't have a valid beef against the
landlord. And her beef against the state agency comes down to "they
were impolite." I don't think the court is going to give her much,
if any, relief on that. Plus, the state housing agency has Qualified
Immunity. In suing them, she has to overcome that QI.
In short, this is a case of a pro se plaintiff (who suffers the
disadvantage of unfamiliarity with the rules of the "game") suing on a
case that (based on what we've read) sounds rather weak to start
with. So, yes, a pro se with a strong case can win, even against a
big corporation and/or a state agency. But this sounds like a rather
weak case, and that requires a good lawyer to make the arguments (and
find the perhaps obscure precedents) that will persuade the judge to
rule in her favor, perhaps to "make new law". (A judge who does this
doesn't _really_ make new law, but rather finds a different
interpretation of existing law. And sometimes that interpretation is
found persuasive even at the Supreme Court level. If so, the
precedent changes and the new case is precedent.)
--
Barry Gold, webmaster:
Conchord: http://www.conchord.org
Los Angeles Science Fantasy Society, Inc.: http://www.lasfsinc.org
Mike Jacobs
<snip>
> weak case, and that requires a good lawyer to make the arguments (and
> find the perhaps obscure precedents) that will persuade the judge to
> rule in her favor, perhaps to "make new law". (A judge who does this
> doesn't _really_ make new law, but rather finds a different
> interpretation of existing law.
Well, Barry, you have put your finger on a longstanding (and probably
unresolvable) argument in legal philosophy - _do_ judges "make" new
law, or simply "discover" what the law was in the first place and
apply it to newly presented facts? I tend toward the former view
myself. After all, this is not theology, where one of the axioms you
start with is that G-d can do no wrong, and that His law is eternal
and unchanging, so it's only our human blindness that keeps us from
knowing what He wants until one interpreter after another comes along
and tells us a new piece of the puzzle.
As an example of theological law-making, consider the issue of whether
it's OK to drive a car or use a microphone at the synagogue or to turn
electric lights on or off during the Sabbath - all of which, according
to Orthodox authorities, are banned under the ancient prohibition on
"making a fire" on the Sabbath, since doing so is "work." Of course,
one no longer need work up a sweat rubbing 2 sticks together in order
to kindle a flame, and the ancient rabbis had no clue about
electricity, but the 20th century rabbis' rulings about cars and light
switches were made by _extension_ of previously revealed general
principles to cover new facts.
The modern rabbinic authorities who had to decide the issue (and in
whom I mean to include both the Orthodox rabbis who ruled that
flicking a light switch on _was_ a form of prohibited "work", and the
Reform rabbis who ruled that it wasn't) all had to start from a
fundamental, unchanging Torah law - work is prohibited on the Sabbath
- and then try to interpret what that meant. The Orthodox contingent
reasoned that "work" in the prohibited Biblical sense included doing
anything that artificially changed the state of the environment, such
as beginning or ending a process of combustion or making a spark, even
if that change was "easy" to make and even if the alternative, such as
walking a couple miles to the synagogue instead of driving there, were
"harder" on the person. The Reform contingent, reasoning (I suppose)
that "G-d wants us to relax" on the Sabbath, permitted use of labor-
saving devices that made it _easier_ to spend a day in relaxation and
prayer. But neither of those rulings did anything to alter the
underlying Biblical injunction against doing "work" on the Sabbath.
No, with human laws, we start from the assumption that humans are
flawed and that our law is incomplete and sometimes flawed as well, it
being a mere approximation of the Divine ideal of "justice." So, the
law evolves, as society's concept of "justice" evolves.
IMO a so called "strict constructionist" or "original intent"
interpretation of the Constitution, by a judge who thinks every legal
problem can be solved simply by asking, "What would Jefferson and
Madison have done?" is engaged in just as pointless an exercise as the
Xian who says, as though it would help in deciding between buying a
compact hybrid vs. a giant SUV, "What would Jesus drive?" Rather,
what really matters IMO is, "What social policy will best help us meet
the needs we are trying to deal with, NOW, in a fair, reasonable way?"
Besides, even a cursory reading of some seminal decisions (those with
lots of "progeny") should make one realize that judges do indeed
create new law - not in every case, to be sure, but they do, in those
cases which take off on pre-existing general principles and use those
principles as a foundation to propound a new, never-before-stated,
general principle. See, frex, one of the best-reasoned, a decision by
the famous Judge Learned Hand of the 2nd U.S. Circuit in 1932,
discussed at
http://itlaw.wikia.com/wiki/T.J._Hooper
That case was the first ever to state that a party could be found
liable for negligence by reason of omitting to do something that had
never previously been required before by industry practice. In that
case, a tugboat had been caught at sea in a storm that sank the barges
it was towing; the tug could have safely pulled into port and avoided
the storm if it had had a weather radio aboard to give sufficient
advance notice of the storm brewing ahead, although no industry rule
at the time required tugs to have such radios, and most tugs did not
have them. IOW, sometimes an entire industry could fall "behind the
times" and thus be negligent in regards to the pre-existing general
requirement to be "reasonable" and to use "due care" to avoid causing
injury or loss to others.
One could say that the above-mentioned, pre-existing "general
requirement" _is_ a complete statement of the law of negligence, and
in one sense it is; but it certainly doesn't tell us anything about
WHAT a person needs to do, in certain circumstances, to be
"reasonable" or to show "due care," and thus provides no guidance at
all for those who are trying to conform their behavior with the
requirements of the law.
When we say "new law" is being made in the negligence field, that does
not mean the concept of "doing what a reasonable prudent person would
do under all the circumstances" changes, but it does mean that judges,
from time to time, will decide that doing or omitting to do a certain
thing, if certain circumstances exist, is ALWAYS presumed to be
reasonable or presumed to be unreasonable. That decision is then
"new law," much like the judge-made law, in some states (MD recently
included) which has ruled that striking another vehicle from behind
while the struck vehicle is duly stopped at a traffic signal or stop
sign, is _always_ presumptively due to negligence on the part of the
striking driver unless the defendant can come up with an acceptable
explanation. Now, there is nothing inherent in justice or logic
that, from time immemorial, has said that the burden of proof MUST be
shifted to a defendant after certain facts are proven; the caselaw
that says so, picking a (somewhat) arbitrary point at which to shift
that burden, _IS_, in any meaningful sense of the word, "new" law, not
merely an act of uncovering some pre-existing but formerly hidden
eternal principle.
Now, those of you whose minds tend toward the scientific may say, "But
wait... Einstein didn't _invent_ relativity, or come up with "new"
natural laws that replaced Newtonian physics; no, he just discovered a
better way to describe the eternal, unchanging laws that govern the
universe." But there, as in theology, the assumption is that we
humans _don't_know_ all there is to know about the subject, and that
while our understanding of what is going on may change, the
fundamental natural processes remain the same.
That's NOT what is going on in the field of law, though; law is a
_human_ creation, and there is no "there" there if we are trying to
see some fundamental, underlying principle from which all subsequent
legal pronouncements _must_ be (and can logically be) derived. Many
"new laws" are in fact arbitrary, in the sense that the only reason we
choose to drive on the left side of the road vs. on the right, or to
recognize that "red" means "stop," is because that is a standard
declared by mutually agreed authority that must be complied with to
insure uniformity within a particular country; not because there is
anything inherent or timeless about driving on the "right" side of the
road.
> And sometimes that interpretation is
> found persuasive even at the Supreme Court level. If so, the
> precedent changes and the new case is precedent.)
Well, any newly reported case opinion is precedent to all subsequent
cases _whether_or_not_ SCOTUS accepts cert. and rules further on the
same case, or relies on the reasoning of the earlier/lower case's
reported opinion in entering an opinion of broader application
(nationwide, rather than limited to one circuit) than the cited
opinion but in a different petitioner's case.
As discussed on another thread, calling a case "precedent" simply
means it is a reported case opinion, written and reported _before_ the
time the judge in an instant case has to make _his_ ruling, and as to
which the deciding judge may be directed by the parties' briefs (or
may choose, on his own) to turn to it for guidance in formulating his
own upcoming decision and/or written opinion.
Even if a case gets overruled by a higher court or by a subsequent
decision of the same court, it is still "precedent" - it still is a
case that "went before" i.e. was issued prior to the present case
being decided. It's just that, if a case has been explicitly or
impliedly overturned on some point of its holding by a later case, the
earlier case no longer has any value as _binding_ precedent as to the
particular point on which it was overturned. I suppose one could
argue, frex, that Plessy v. Ferguson (the infamous "separate but
equal" Jim Crow case) is still good law for the proposition that the
14th amendment _does_ require states to furnish "equal" access to
railroad facilities for its black and its white citizens, even if
subsequent cases (such as Brown v. Board of Ed.) have held that
"separate" is inherently not "equal" in the context of educational
facilities (and thus have overruled Plessy to that conceptually
limited, but emotionally and practically far-reaching, extent).
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
Barry
> Could or would you be willing to write about your case here, on mlm,
> in summarized form?
I don't want to center-stage it right now, but it's a Freedom of
Information Act case against an agency that may or may not be NASA and
I'm waiting to find out whether I defeated the agency's motion for
summary judgment. I won a previous FOIA case and was told I won this
one too, before I started asking for more stuff. So, to keep this
slightly on topic, that's why you should listen to me.
Barry
> >Quality of council
> >accounts for far less than 50% of the chances of winning.
>
> Some cites on that would be nice.
Making Your Case, The Art of Persuading Judges, p. 22 "A mediocre
advocate defending a good position will beat an excellent advocate
defending a bad position nine times out of ten. (We made up this
statistic, but it's probably correct.)" I'm not saying Hilary is the
equivalent of a mediocre advocate, but the book's not being precise
either. I think Melvin Belli said something like that too, but I don't
remember where.
> the ADA
> does _not_ require that the landlord solve her problem. It is up to
> _her_ to come up with an accomodation...
The proper accomodation is probably easy to infer from however Hilary
complained. Another apartment of equal value but different location,
maybe. I think she said other neighbors complained too, so there's
disturbing the peace, or whatever a landlord could be liable for when
even an average person is bothered. I'm not sure whether she has a
cooperative witness though. It's not clear to be that she'll lose.
grendal
> >On Oct 24, 5:08�am, grendal <im_gu...@hotmail.com> wrote:
> >> I think its more important to hit you with the harsh cold
> >> reality...
>
> >Nothing you said above explains why she doesn't have a case. If she
> >does, I think the fight is worth it considering the effort she's put
> >in to it so far. It actually sounds like her work is about done.
>
correct some other misconceptions at the same time...
I need to respon to Barry from polisource.com ...
A fight is worth considering, but at what cost?
We're not talking about dollars and cents but with respect to the
mental and physical health of the litigant.
Unless you've been in Hilary's shoes, you don't appreciate the harm
that can occur.
Hilary has already posted here about her bad knees and trouble she's
had. Her emotional pain, adnauseum... So you can see the effects that
it is having on her.
As I alluded to in another post, I was involved in an FHA lawsuit
where we settled. Unlike Hilary, the investigator was going to move
forward with a recommendation to pursue our complaint. The reason I
settled was because just going through the lawsuit was going to cause
harm to my wife and no amount of money was worth that. So yeah, while
IANAL, I do happen to know a bit about the battle Hilary is taking on.
> As to why Grendal thinks Hilary doesn't have a case, you'd have to go
> back through the archives of this newsgroup. �Here's a summary of what
> she said in the past, as well as I can recall:
>
> � � 1. Hilary suffers from PTSD, which has left her with hyper-acusis,
> � � an abnormal sensitivity to noise. �(My wife suffers from this on
> � � occasion, so I have some idea what it's like.) �That is, indeed a
> � � disability, though whether it's one that is covered by the ADA I'm
> � � not sure.
>
No. PTSD could, depending on how bad the PTSD was... but Hilary claims
to suffer from Clinical depression. By definition, if Hilary does
suffer from Clinical Depression, she would be included as a member of
the protected class. Of course the rub is that she'll have to convince
the judge of this. While the law is pretty vague, the issue at hand is
if the mental health issue is debilitating enough. The issue is if
Hilary's doctor(s) can convince the judge, and if the apartment
complex and state agency don't bring in their own physicians to
counter Hilary's testimony. As I said in a different post, and it
needs repeating. If the diagnosis was made by Hilary's PCP and he/she
is not a board certified Psychiatrist, its going to be grounds for a
challenge.
Remember just the fact that a doctor coded a diagnosis as Clinical
Depression doesn't mean that the judge would agree. The onus is on
Hilary to prove she deserves protection under the law. This is why its
always an uphill battle to start with. In addition, Hilary is
representing this on her own. If she's capable of going pro se, then
it calls in to question on how serious her illness really is.
> � � 4. She asked for the landlord to do something about the noisy
> � � neighbor.
>
> � � 5. The landlord (corporation) said they couldn't do anything,
> � � and offered to let her out of her lease instead. �She
> � � accepted this offer.
>
No.
Hilary went in to much more detail than that. She indicated that when
she initially complained, the landlord did talk to the other neighbor.
Things were better for a while, but then got worse over time. Hilary
did complain to the management and at one point, in Hilary's own
words ... the brother of the live in manager told Hilary to call the
police and file a noise complaint. (Hilary did not.)
The reason this is important is that you paint the picture of the
Apartment Complex was not being responsive. In Hilary's own words they
were. What we do know is that while they could not rectify the
situation to Hilary's satisfaction, she then decided on getting a
reasonable accommodation because in her own words, the current living
arrangement was detrimental to her mental and physical well being.
Also, according to Hilary's posts, she was about to have her doctor
talk to the building to let her out of the lease. When they did offer
to let her out of her lease, she refused. (I believe she said that
they had to evict her.)
The trouble here is that in Hilary's own words, she was seeking a
reasonable accommodation of being let out of her lease. When they did
this, she reconsidered and did not find it reasonable. That's the
catch. How can you say that the building was being unreasonable in
their accommodation when it was the same thing she was about to ask.
(And if you don't think this will come up in either interrogatories or
in deposition of her PCP, you will be sadly mistaken.)
This is what kills her case. Hilary's own use of colorful language and
being prone to exaggeration most likely put her in this position.
> � � 6. She then complained to her state's housing agency, and they
> � � "blew her off" with some rather brusque and perhaps not-nice
> � � language.
>
No.
The state investigating agency did do their job. That is, they
investigated the complaint and came to the conclusion that Hilary did
not have a case.
How they came to this conclusion and how well they did their
investigation remains to be seen. However, on the surface, the
investigating agency did their due diligence. (They even have signed
statements from other neighbors regarding the 'noisy neighbor'. What
is said in these statements, we don't know. Again here, Hilary started
on her 'coerced and forged' kick.)
Hilary alleges that during a very long conversation after they made
their recommendation to not pursue the complaint further, the
investigator became brusque.
You can imagine how the defense can spin this.
> So, legally I'm guessing she doesn't have a valid beef against the
> landlord. �And her beef against the state agency comes down to "they
> were impolite." �I don't think the court is going to give her much,
> if any, relief on that. �Plus, the state housing agency has Qualified
> Immunity. �In suing them, she has to overcome that QI.
>
In a nutshell, yes. At least in her postings here.
-G
Hilary
> I would like to ask at the scheduling
> conference that a magistrate judge not hear this case
I didn't ask for a jury trial until Monday, in part due to the fact
that I'm pro se. Asking for a jury trial seemed over-the-top, and my
disability doesn't encourage amateur-hour performances. But even if my
case is going to be dismissed on summary judgment, I would like the
judgment to come from a different judge. A variety of judicial actions
manifested through the rhetoric of this particular man's orders--which
are never signed--just have the ECF "/s/" stamp--unlike the two
previous judges, who actually took the time to sign orders for a lowly
pro se--
Well, his actions have made me want to ask that this case not be sent
down the garbage chute by this specific man. Falling into the hands of
a saint is something I have experience with, and it makes me sick to
my stomach. If I actually say on the joint case management plan that I
want the case returned back to the original judge, MUST I state why?
If it matters, I have a list of things this judge has done since
having been assigned the case that have made the more learned of my
friends and medical associates raise their eyebrows.
grendal
> > the ADA
> > does _not_ require that the landlord solve her problem. �It is up to
> > _her_ to come up with an accomodation...
>
> The proper accomodation is probably easy to infer from however Hilary
> complained. Another apartment of equal value but different location,
> maybe. I think she said other neighbors complained too, so there's
> disturbing the peace, or whatever a landlord could be liable for when
> even an average person is bothered. I'm not sure whether she has a
> cooperative witness though. It's not clear to be that she'll lose.
Barry@polisource ...
I'm sorry that you kind of jumped in here at the tail end of this. You
really need to go back and re-read the many threads Hilary has raised
on this issue.
But to address your point, there is no such thing as 'The proper
accommodation'.
There's a thing called 'reasonable accommodation'. That is, under the
law, if a member of the class requests a reasonable accommodation, the
building is obligated to honor the request. If they fail to do so,
then the member of the protected class has the ability to file a
complaint with HUD who is then required to investigate the complaint.
If the investigating agency finds cause, they will then recommend to
pursue legal proceedings. (If this can't be resolved sooner.)
Using your 'reasonable accommodation' of relocating Hilary, that would
be fair, provided that the complex had a comparable unit available and
that Hilary would not have the same problem with her new neighbors.
With respect to 'disturbing the peace'... funny you should mention it.
In an earlier post, Hilary mentions that the on-site property
manager's brother who was living with the property manager told Hilary
to call the police about her noise complaint. Hilary did not follow up
and call the police.
But I digress.
You are mistaken about other neighbors also complaining. Hilary went
on a bit of a rant when she saw a bunch of affidavits from other
tenants who signed a form letter about not having any issues regarding
noise complaints.
If you understood FHA and the case, its pretty clear Hilary will lose.
Here's why:
1) Hilary has to prove that she is a member of the protected class.
Its not a given. Unlike a physical handicap, which is apparent, mental
handicaps are harder to prove. Note: The onus is on Hilary to prove
she is a member of the protected class. Just having a note from your
doctor doesn't cut it.
Now to make things worse for Hilary, the standard is that Hillary has
to show that her mental illness meets the level required by the law.
That is, it must be debilitating and does not allow her to enjoy a
normal life. Under PTSD, the answer is that it depends. Under Clinical
Depression, by definition of the diagnosis, then it would make her a
member. But there's a catch. Hilary is representing herself pro se.
That's a catch 22. If her disease is bad enough to meet the
requirements of the FHA/ADA, then how can she represent herself?
2) In Hilary's post of a 'hypothetical' complaint, which we can infer
is an almost verbatim copy of her actual complaint (with the names
changed to protect the 'innocent') she stated that she was so driven
mad by the noisy neighbor and the lack of further action by the
management company, that she sought her doctor to either commit her or
help her to get out of her lease so she could find accommodations
elsewhere. This was her reasonable accommodation. Yet when the
management company did do just that, Hilary backed down.
3) We haven't heard the whole story from Hilary. Hilary loves to use
colorful language when describing her problem. While she said that she
left numerous voicemail messages on the management company's phone, we
don't know what she said. There are things that she could have said
that would help to further bury her.
4) Hilary has yet to state any case against the investigating agency
which would show that they violated her rights under the FHA. And of
course there's the issue of QI too.
So how is it that if Hilary thought getting out of her lease was
reasonable enough to talk to her PCP and asking for help, yet when the
complex offers it, its no longer reasonable? That kind of kills it
right there.
So you tell me what I'm missing?
-G
Cy Pres
<im_g...@hotmail.com> wrote:
>A fight is worth considering, but at what cost?
>We're not talking about dollars and cents but with respect to the
>mental and physical health of the litigant.
>Unless you've been in Hilary's shoes, you don't appreciate the harm
>that can occur.
The same could apply to your own statements. Unless you stand in
Hilary's shoes, you have no idea how important it is to her to feel
she did whatever she could to vindicate her rights. I believe many of
us here have pointed out that she is taking on a difficult case even
if she is legally right, and that she may not be even that.
However, she is clearly an intelligent enough person to be entirely
capable of deciding how important her battle is to her, and if it is
worth the scuffed knees and blackened eyes. She has, so far, not
asked for advice on whether or not it is a good idea for her to be
litigating this case pro se, or at all, but has apparently decided to
do so, and it is belittling her to think she doesn't realize how
distressing the experience can be, or is.
Bob
<hilaryje...@yahoo.com> wrote:
>On Oct 22, 6:43�pm, Hilary <hilaryjeanfro...@yahoo.com> wrote:
>
>> I would like to ask at the scheduling
>> conference that a magistrate judge not hear this case
>
>I didn't ask for a jury trial until Monday, in part due to the fact
>that I'm pro se. Asking for a jury trial seemed over-the-top, and my
>disability doesn't encourage amateur-hour performances. But even if my
>case is going to be dismissed on summary judgment, I would like the
>judgment to come from a different judge. A variety of judicial actions
>manifested through the rhetoric of this particular man's orders--which
>are never signed--just have the ECF "/s/" stamp--unlike the two
>previous judges, who actually took the time to sign orders for a lowly
>pro se--
Whether it's signed normally or electronically, stamped, or not signed
at all is of no importance, and you shouldn't infer anything from it.
My guess is the judge is doing what he does with all of his orders,
whether they're in your case or in other cases.
The judgment won't come from the magistrate anyway. It has to be
approved and adopted by a district judge who will, if he or she agrees
with the magistrate, enter judgment.
>Well, his actions have made me want to ask that this case not be sent
>down the garbage chute by this specific man. Falling into the hands of
>a saint is something I have experience with, and it makes me sick to
>my stomach. If I actually say on the joint case management plan that I
>want the case returned back to the original judge, MUST I state why?
>If it matters, I have a list of things this judge has done since
>having been assigned the case that have made the more learned of my
>friends and medical associates raise their eyebrows.
I have yet to see you say anything specific that justifies
disqualification. Why don't you research motions for disqualification
in the third circuit? I've never read any, but I imagine you'll find
it difficult to disqualify a judge. Just because you don't like him
or you don't like the tenor of his statements or you don't like his
rulings won't be enough.
In any event, putting your request in a case management statement is
not going to cut it. You'd have to file a motion.
Cy Pres
<hilaryje...@yahoo.com> wrote:
>Asking for a jury trial seemed over-the-top, and my
>disability doesn't encourage amateur-hour performances. But even if my
>case is going to be dismissed on summary judgment, I would like the
>judgment to come from a different judge.
Your personal preference is not a valid reason to recuse a judge.
>A variety of judicial actions
>manifested through the rhetoric of this particular man's orders--which
>are never signed--just have the ECF "/s/" stamp--unlike the two
>previous judges, who actually took the time to sign orders for a lowly
>pro se--
See, you're doing it again. The /s/ is a perfectly valid signature in
a document filed by ECF. All it says is that the judge wrote the
order in electronic form instead of on paper. There is absolutely
nothing in that to cause affront.
>Well, his actions have made me want to ask that this case not be sent
>down the garbage chute by this specific man. Falling into the hands of
>a saint is something I have experience with, and it makes me sick to
>my stomach. If I actually say on the joint case management plan that I
>want the case returned back to the original judge, MUST I state why?
Yes. If you request a court to do anything at all, you must justify
why it is legally permissible or required, otherwise the court will do
nothing. The word for making demands that a court do something which
lack any legal basis for so doing is "frivolous."
-Barry-
> So how is it that if Hilary thought getting out of her lease was
> reasonable enough to talk to her PCP and asking for help, yet when the
> complex offers it, its no longer reasonable?
I don't think that was her first request. If the building manager
acted illegally in response to her first request, they're at fault
even if they agreed to the second, lesser request. Even if her first
request was implied (in the form of a noise complaint), that should
count as a request if she explained her disability. At least it seems
that way to me. The only reason I have to think she may lose is the
comments here by people who've probably followed this more closely
than me, and what Hilary said about the judge's reaction.
grendal
Barry,
You walked in on the tail end of this...
Hilary already outlined that she wanted out of the complex. You can go
back and see here earlier posts.
You don't seem to know much about FHA so here's it in a nut shell.
If you are a member of the protected class, you have the right to make
a reasonable accommodation. The building has make the accommodation if
it is reasonable. But here's the problem. Who determines of the
request is reasonable. Hence the reason there's HUD and a way for the
individual who believes that they had been discriminated against can
complain.
Raising a noise complaint is not asking for a reasonable
accommodation. You or anyone who is not a member of the protected can
raise a noise complaint if you have a noisy neighbor. So lets be clear
that a noise complaint is not asking for a reasonable accommodation.
Hilary would have to make a 'formal' request for a reasonable
accommodation. The reason I put the 'formal' in quotes is that I'm not
sure that there is a specific format that the request has to take
other than making a request and identifying the reason why the request
was being made.
And this is where things get a bit messy.
I'll use an example where there are some cases you can google... A
resident in a HOA has a stroke and while recovering he's suffering
from clinical depression. His doctor recommends that he get a therapy
dog to help him with his depression. He does, however he lives in a no
pet building. He makes a request for a reasonable accommodation and
the HOA denies the request. The end result is that there's a lawsuit
and the resident wins. (I think this case was in Michigan.) While the
HOA didn't think the request was reasonable, because there was no real
cost associated with the request and it required an exception to the
rule, the courts found that it was a reasonable request.
So in Hilary's case, were she to make a 'formal' request, that doesn't
mean that the building would find it to be reasonable and hence you
have a situation where Hilary could file a HUD complaint.
But the problem Hilary faces is that while she says that she didn't go
to the complex with the request to be let out of her lease, she was
thinking of it.
Also Hilary didn't indicate what she said in some of her voice mail
messages to the complex. (Or did she write them?) The point is that
Hilary is prone to 'colorful' and exaggerated language. So if she made
comments that the noise issue was bad enough to cause her physical and
mental harm, they could say that they were forced to get her removed
from the situation asap.
Again, there's a lot of evidence and things that we don't know
anything about.
And we're only dealing with the lawsuit with respect to the complex.
There's the complaint against the state agency which for the life of
me I don't understand what they did which would qualify for any
complaint.
There is a lot of things wrong here and something which Mike Jacobs
pointed out long ago. All the defense attorneys have to do is to poke
enough holes in the case and it falls apart. Hilary has to
demonstrate that the building violated her rights under the FHA. In
addition, she also has to prove that she is also a member of the
protected class. The burden is on Hilary to prove her case. From what
she has said here, she hasn't demonstrated that her rights were
violated. She can't claim that the complex acted unreasonable when she
went to her own doctor in an effort to ask for the same thing.
Sure the judge's reaction isn't a good sign.
Bob
<miatt...@gmail.com> wrote:
>On Oct 29, 7:32�pm, Cy Pres <c.p...@yahoo.com> wrote:
>
>> >A variety of judicial actions
>> >manifested through the rhetoric of this particular man's orders--which
>> >are never signed--just have the ECF "/s/" stamp--unlike the two
>> >previous judges, who actually took the time to sign orders for a lowly
>> >pro se--
>>
>> See, you're doing it again. �The /s/ is a perfectly valid signature in
>> a document filed by ECF. �All it says is that the judge wrote the
>> order in electronic form instead of on paper. �
>
>There is probably an "original" hard copy order in the court file that
>contains the judge's actual signature. As to party filings, the ECF
>rules require the filer to maintain the signed original in his file
>for 5 years after the case closes. I suspect there is a similar
>requirement for court filings.
I doubt it. First, in many (all? - I have no idea) federal district
courts, in cases initiated after electronic filing was required, there
is no hard copy original court file anymore. Second, I am hard
pressed to find any general rule even requiring a judge's signature on
all orders. For example, many minute orders aren't signed by a judge
at all - they're not actually signed, they're not signed with an /s/,
they're not stamped - nothing. Nonetheless, as a matter of practice,
my guess is that dispositive orders, judgments, and other more
important rulings tend to be signed by the judge. My guess is all of
this varies from district to district, although some commonalities
probably exist.
I even tried to find federal cases that discuss the issue of whether a
judicial signature is required on orders. Other than many cases that
require a judge's signature on a warrant, there was very little. I
did find some very old cases that say that even a judgment without a
signature is valid unless it can be proved that it was obtained by
fraud, that a judgment pronounced by a court is effective, and that a
signed judgment is simply evidence of the court's will, not a
requirement.
"The judgment of a court is its pronouncement from the bench. The
written order is but the evidence of what the court has decided.
Freeman on Judgments (4th Ed.) Sec. 38. The requirement that the judge
sign is directory. Id. Sec. 50e."
United States v. Stoller, 180 F. 910, 913 (D.C. Wash. 1910).
However, there may be special rules, statutory or judicially crafted,
in different jurisdictions that require a judge's signature in certain
contexts. For example, see Phillips v. Phillips, 41 Cal. 2d 869, 873
(1953) ("When, as here, findings of fact are required, [citation], and
have not been waived, judgment is not rendered until the findings have
been signed by the trial judge and filed with the clerk."
Of course, all of this is of little moment to Hilary who should focus
on other things than whether one judge signed an order one way and
another signed it in a different way.
Barry
> > I don't think that was her first request.
...
> Hilary already outlined that she wanted out of the complex. You can go
> back and see here earlier posts.
I read her "Theoretical FHA Complaint" of March 14. Here are some
excerpts:
11. On or about July 2, Plaintiff complained to L* about inability to
sleep caused by the bass sounds and echoes of a television set during
the evening, night, and dawn hours.
28. Plaintiff also asked L* to make personal visit to Plaintiff's
apartment to witness noise.
29. L* refused to make personal visit to Plaintiff's apartment.
30. On or about August 13, L* phoned Plaintiff to inform Plaintiff
that D* M*, her supervisor at C* Realty Advisors, was releasing
Plaintiff from her lease.
31. Plaintiff stated she did not want to be released and loved her
apartment.
Hilary complained of noise numerous times and rather than moving
Hilary to another apartment, she was released from her lease, which
she didn't want at that point. She was told to call the police and
didn't, so maybe that means she didn't exhaust her administrative
remedies or something. It still doesn't sound like a clearly lost
case.
> So lets be clear
> that a noise complaint is not asking for a reasonable accommodation.
I still think "that should count as a request if she explained her
disability" but I don't know whether it does. Maybe you know, but I
don't know that. You could be an attorney for the building manager for
all I know. Here are some more paragraphs from her complaint:
6. On or about June 26, 2007, two days before her move-in date,
Plaintiff claimed hypersensitivity to odors, lights, and sounds, and
expressed anxiety at being asked by R* L*, apartment manager, to move
in to an apartment without having seen it.
23. On or about August 6, 2007, Plaintiff contacted L* again and
expressed severe anxiety about ability to maintain physical health if
B*'s television remained as loud as it was.
Bob
<im_g...@hotmail.com> wrote:
>Raising a noise complaint is not asking for a reasonable
>accommodation. You or anyone who is not a member of the protected can
>raise a noise complaint if you have a noisy neighbor. So lets be clear
>that a noise complaint is not asking for a reasonable accommodation.
Your statement is a legal conclusion and I don't think you know enough
about the facts in Hilary's case (I don't think any of us does) or the
law to reach such a conclusion. Apparently, the court felt that
Hilary had alleged sufficient facts to state a claim under the FHA (or
FHAA). That doesn't mean she'll prevail, but if based on her
complaint, the court felt she'd done enough to satisfy the elements,
your unsupported contrary conclusion strikes me as unpersuasive (your
anti-Hilary rhetoric doesn't help).
Hilary apparently informed her landlord she suffered from a disability
that included a hypersensitivity to sound. She complained about the
noise. She asked that something be done about the noise. The cases
on what constitutes a request for a reasonable accommodation are
scant, but the allegations (which is all they are at this point) sound
like they may be enough.
grendal
> Hilary complained of noise numerous times and rather than moving
> Hilary to another apartment, she was released from her lease, which
> she didn't want at that point. She was told to call the police and
> didn't, so maybe that means she didn't exhaust her administrative
> remedies or something. It still doesn't sound like a clearly lost
> case.
>
Bob,
Remember that you're only hearing the story from one side. Hilary's.
Hilary was told to call the police when she was reporting an ongoing
noise complaint. Hilary didn't do that. Now I wonder why the complex
manager would instruct Hilary to do this....
A: The other neighbor would pose a threat of physical violence to the
manager and the manager didn't want to get hurt?
B: The manager didn't want to get involved and would rather have the
police, an objective third party who could control the situation,
determine if there was sufficient evidence of a noise complaint.
C: Having an objective 3rd party would remove any chance that the
manager would get accused of playing favoritism.
D: The manager was following the advice from their superiors.
E: If the police found any evidence of a noise violation, they would
not only handle the complaint, but also make a record of it. So if the
building had to take action, there would be indisputable
documentation.
As to Hilary's 'administrative remedies' ... She did file a HUD
complaint. This lead to the investigation by the 'state agency', which
she is also naming in the lawsuit. That's her administrative remedy.
The agency did the investigation, determined that there wasn't any FHA
issue and that was it. Hilary appealed and her appeal was denied. Her
recourse then was to sue the complex. (Which she did pro se.)
Hilary lost her case before it got started. She failed to cause/claim
against the state agency. Disregard Qualified Immunity (QI) and she
still doesn't have a case. They investigated, their investigation
didn't find any merit to her claim and because she doesn't like their
decision, she's suing them?
Against the complex?
> > So lets be clear
> > that a noise complaint is not asking for a reasonable accommodation.
>
> I still think "that should count as a request if she explained her
> disability" but I don't know whether it does. Maybe you know, but I
> don't know that. You could be an attorney for the building manager for
> all I know. Here are some more paragraphs from her complaint:
>
Sigh.
A reasonable accommodation is asking something that the apartment
complex would not normally grant any occupant but would be an
exception based on the individual being a member of the protected
class.
A noise complaint is not a reasonable accommodation because it is
something that anyone, regardless of their status would reasonably
expect. It has nothing to do with one's disability.
And of course, what happens when you have two people who are protected
members of the class and their rights interfere with each other.
Suppose it wasn't an issue over loud music, but that Hilary was
complaining about her upstairs neighbor who 'thumps around' late at
night. As it turns out its an elderly man going through chemo, who
can't sleep and has to go to the bathroom regularly. Hilary is
complaining about the thumps as he moves around using his cane.
So what then of a noise complaint?
You can't expect the man to get a Texas Cath put in so he can pee in
his bed. That wouldn't be reasonable. ;-)
(If you don't know what a 'Texas Catheter' is, you'll miss the joke.
Its when they insert a cath in to your penis so you can pee into a
bag. Not fun and can pose a health risk of infection if left in over
time or not maintained properly.)
And that's part of the point. We don't know anything about the 'noisy
neighbor'.
> 23. On or about August 6, 2007, Plaintiff contacted L* again and
> expressed severe anxiety about ability to maintain physical health if
> B*'s television remained as loud as it was.
Ah, and here's part of Hilary's problem.
She is essentially telling the building that she can't remain in her
apartment because it represents a danger to her health.
She also said that when being told that she was being let out of her
lease, she then declined the move saying that she loved her
apartment.
So which is it? Is the apartment a danger to her health, or a loving
warm environment which she loves?
Because she has indicated that staying there represented a health
risk, the building was limited in their options. If they didn't have a
comparable unit, and they couldn't let her stay, they had no choice
but to remove her. With respect to the idea of removing the other
resident, that can't happen because the other resident has rights and
no one else but Hilary seems to have complained. We know this from the
signed statements made by the other residents.
Note: We don't have all of the facts, nor do we know exactly what
Hilary said in the communications (oral and written) with the building
complex.
You can bet they talked with their attorney before releasing Hilary
from her lease and 'forcibly' evicting her.
So you see, Hilary's language has put her in a bad position.
Here's another reason why Hilary is fighting a losing battle. The
investigating agency did their job and found nothing. Does Hilary have
any evidence that they didn't uncover in their investigation or chose
to ignore?
NOTE: I had to clip out a lot from the post because the mod(s) will
sometimes not put in a post unless its trimmed down. (Excessive
quoting I believe.)
-G
Barry
> Bob,
You mean Barry.
> [HUD] investigated, their investigation
> didn't find any merit to her claim and because she doesn't like their
> decision, she's suing them?
> Against the complex?
I didn't follow every thread and I don't know anything about HUD's
reasoning but HUD could have been wrong.
> And of course, what happens when you have two people who are protected
> members of the class and their rights interfere with each other.
Even if the neighbor wasn't protected, I don't think someone should be
forced to accommodate a neighbor who's abnormally sensitive to noise
unless it's a special building that tenants know works that way.
Ideally, the manager or someone from HUD would assess how loud the
noise is and only complain or get the police involved if the
neighbor's being too loud for someone with normal hearing. In any
case, offering to move the affected person to another apartment if one
is available should be part of the standard course of action. I find
it too obvious a solution in Hilary's case for it not to have been
offered before she was thrown out. If the law says "you have to
specify the remedy in exact terms no matter how obvious it may seem"
then Hilary might lose in district court but I'd still say the law
shouldn't be that way.
> So which is it? Is the apartment a danger to her health, or a loving
> warm environment which she loves?
It's an apartment she loves except for the noise. It's a danger to her
health with the noise. That's kind of obvious. You might make a good
(or typical) lawyer, but you'd make an unfair judge.
grendal
> >Raising a noise complaint is not asking for a reasonable
> >accommodation. You or anyone who is not a member of the protected can
> >raise a noise complaint if you have a noisy neighbor. So lets be clear
> >that a noise complaint is not asking for a reasonable accommodation.
>
> Your statement is a legal conclusion and I don't think you know enough
> about the facts in Hilary's case (I don't think any of us does) or the
Bob, lets try this one more time.
Lets take you for example. You're not a member of the protected class,
are you? (rhetorical question.) For the sake of argument, lets say
that you're not.
Now lets replace Hilary with you.
You have the noisy neighbor. If the raising of a noise complaint was a
reasonable accommodation, then since you're not a member of the
protected class, you would not be allowed to raise it. That is, since
anyone is eligible to raise a noise complaint, it is not a reasonable
accommodation.
That's the point.
>Apparently, the court felt that
> Hilary had alleged sufficient facts to state a claim under the FHA (or
> FHAA). �That doesn't mean she'll prevail, but if based on her
> complaint, the court felt she'd done enough to satisfy the elements,
> your unsupported contrary conclusion strikes me as unpersuasive (your
> anti-Hilary rhetoric doesn't help). �
>
Anti-Hilary? Dude! If you think my comments to be unkind, you should
see what the opposing counsel will do when they get started. If they
get a chance.
You're now making an assumption that Hilary has alleged enough facts
to go to trial. Its very possible that the opposing cousel(s) will
make a motion to dismiss, along with the potential that the judge
tosses the case on his own. (Hence Hilary's derogatory comment calling
the judge a WASP.)
While you're taking Hilary's side, try looking at it from the
defense's point of view.
We don't have all the facts from Hilary and I'm sure there's some
issues that the defense can and will raise.
The problem I have with Hilary is that she's acting like she's trying
to solve an injustice, yet no injustice was done.
The fact that many here have told her that she doesn't really have a
case, she still pursues this case. When told that the case would pose
a threat to her mental and physical well being, she still pursued the
case. Now she complains about her mental and physical health, and
wonders how to proceed. If Hilary truly suffers from Clinical
Depression, the damage (self inflicted) will set her back a could of
years in therapy. So I have to ask, who's doing Hilary a greater
disservice? You who are egging her on saying don't give up a good
fight. Or me, saying that she should walk away because she'll never
get what she wants and that going through the legal process of a
lawsuit, especially pro se, will do more damage than harm.
> Hilary apparently informed her landlord she suffered from a disability
> that included a hypersensitivity to sound. �She complained about the
> noise. �She asked that something be done about the noise. �The cases
> on what constitutes a request for a reasonable accommodation are
> scant, but the allegations (which is all they are at this point) sound
> like they may be enough.
I suggest you go back and think about what makes a member of the
protected class.
Hilary said she suffers from several maladies. Only Clinical
Depression, by definition, is an automatic yes that she's a member of
the protected class. Oh and that's another thing... Just because she's
a member of the protected class due to clinical depression, you then
have to show that the noise issue was tied to her clinical depression.
(Which may be possible, although it depends, if the case gets that
far.)
Again, go back to her complaint. What was the specific accommodation
that Hilary requested that the building denied?
Also, you want to look at the forced eviction issue. Now tell me what
would give the complex the legal right to evict Hilary in this
situation?
That's the legal question you have to ask and understand.
Look up the definition of "exigent circumstance". While this is
criminal law, do you start to see the potential liability that the
complex would face if they didn't move Hilary out of the building? And
if they didn't have another comparable unit available? What then? Oh
and if you're thinking of moving the other neighbor, if memory serves,
the other neighbor was there first and that the other neighbor most
likely is also a member of the protected class.
grendal
> On Nov 1, 3:29 pm, grendal <im_gu...@hotmail.com> wrote:
>
> > Bob,
>
> You mean Barry.
>
> > [HUD] investigated, their investigation
> I didn't follow every thread and I don't know anything about HUD's
> reasoning but HUD could have been wrong.
>
Ah, yes, the investigating agency could be wrong, however... more
times than not, they are right.
That's why you still have the right to sue, even after raising a HUD
complaint.
Hilary filed the HUD complaint, she appealed and still lost. Even if
the investigator did agree with Hilary, his supervisors could decide
not to pursue the case. But that's rare. HUD isn't there to protect
the property managers, but to investigate and protect the
individual.And not just HUD, but the state investigating agency.
Hilary didn't state the investigator's findings or reasoning. It
doesn't matter, except that the state agency decided that there wasn't
a complaint to pursue.
Hilary filed suit against the state agency, alleging that they
violated her rights also under FHA/ADA. I never quite understood her
complaint against the agency but apparently she indicated that they
got curt and abusive on a phone call after an hour where she didn't
understand why they declined to pursue a case.
In short, she's making this a Federal Case because of her inclusion of
the State Agency.
> > And of course, what happens when you have two people who are protected
> > members of the class and their rights interfere with each other.
>
> Even if the neighbor wasn't protected, I don't think someone should be
> forced to accommodate a neighbor who's abnormally sensitive to noise
> unless it's a special building that tenants know works that way.
Well, you have a couple of problems...
A hypersensitivity to sound or odor isn't going to be protected under
the FHA. You can read the definition of what qualifies you as a member
of the protected class. The problem is that you must prove in court
that you are a member of the protected class. Show up in a wheel chair
or with a seeing eye dog and the complaint is about accessibility, the
odds are the defense isn't going to challenge you. Mental illness?
That's going to be challenged every time. Also its not just enough to
show that you have been diagnosed with a mental illness, but that the
illness should be recognized and covered under the FHA. Clinical
Depression by the definition of the diagnosis is automatically
covered. Provided that you can prove and the defense can't call to
question the diagnosis. (Look up the definition of clinical
depression. ;-)
PTSD? It depends.
Then there's another problem... what's a reasonable accommodation?
You can't relocate the 'noisy neighbor' because that neighbor has
rights and no one else complained. There's no police report which
shows that the neighbor was being 'noisy'... so what are your options?
Same thing if you were hypersensitive to odors and had a physical
reaction to the chemicals in the paint or carpet of your unit. If you
can't live in the unit, and you can document your allergies, then a
reasonable accommodation would be a release from your lease. Of course
the building may do this, or you may have to sue. If you sue, then you
probably wouldn't sue under the FHA, but in small claims court and
provide proof of your illness. In small claims court, the burden of
proof is going to be easier on you the plaintiff.
But this isn't the case here.
Hilary is 'making this a federal case...'.
> Ideally, the manager or someone from HUD would assess how loud the
> noise is and only complain or get the police involved if the
> neighbor's being too loud for someone with normal hearing. In any
> case, offering to move the affected person to another apartment if one
> is available should be part of the standard course of action.
No. The burden of calling the police isn't the building managers but
Hilary's since she's the one raising the complaint.
But you also raise a question. Would moving Hilary be a reasonable
accommodation? Sure, if a like unit was available and that it would
not subject Hilary to the same issues. But we don't know if Hilary
asked for this, or if it wasn't offered because no such unit was
available at the time. The key issue here is that the unit has to be
a like unit. Hilary can't point to a 3 bedroom deluxe unit when she's
only paying for a convertible. (small 1 bdrm apt).
>I find
> it too obvious a solution in Hilary's case for it not to have been
> offered before she was thrown out. If the law says "you have to
> specify the remedy in exact terms no matter how obvious it may seem"
> then Hilary might lose in district court but I'd still say the law
> shouldn't be that way.
>
Huh?
No, the law says that the plaintiff has to ask for a reasonable
accommodation and that the building would have to honor the reasonable
request. It doesn't specifically state what constitutes a reasonable
accommodation and what doesn't. So if Hilary asks for what she
believes to be a reasonable request, and the building doesn't, then
you get HUD involved. (Hilary did this.)
If the investigating agent finds that the request was reasonable, then
you will see the case move forward. If not, then nothing will happen.
This is the problem with Hilary's case.
It is a reasonable accommodation to let someone out of their lease.
The 'forced eviction' could have been the result of something Hilary
said. (See below)
Also, nobody else seems to have a problem with this 'noisy neighbor'.
Hilary first accused the building of coercing 'false' statements and
that they were bullied in to their statements. Yet as it turns out,
the other neighbors merely signed a form letter that they didn't have
issues with the other neighbor. So if you were the building's
management and you have a single tenant who making complaints that you
can't verify... what then?
> > So which is it? Is the apartment a danger to her health, or a loving
> > warm environment which she loves?
>
> It's an apartment she loves except for the noise. It's a danger to her
> health with the noise. That's kind of obvious. You might make a good
> (or typical) lawyer, but you'd make an unfair judge.
Ok, you want to sit on the fence... not the most comfortable seating
arrangement... ;-)
Look at it from the building's perspective.
Hilary is a potential liability. Because of her health claims the
building would be viewed negligent under the law if they allowed her
to stay. And that's key.
For the sake of argument, assume that Hilary is a member of the
protected class.
What's a reasonable accommodation?
If there are no units available what options are available to the
building?
You said it yourself. The option would be to let her out of her lease.
Hillary balks at leaving, yet she's already made public statements
that continued residence in the unit would be harmful to her health.
So you have no choice but to evict. If you don't and Hilary does harm
to herself, you've got a potential lawsuit on your hands.
Sorry, I'm not here to be Hilary's judge. She asked for advice and my
advice has always been to walk away. The pain that she has already put
herself through isn't worth it. And its only going to get worse.
HTH
-G
Bob
<miatt...@gmail.com> wrote:
>On Nov 1, 10:24�am, Bob <x...@xxx.com> wrote:
>
>> Your statement is a legal conclusion and I don't think you know enough
>> about the facts in Hilary's case (I don't think any of us does) or the
>> law to reach such a conclusion. �Apparently, the court felt that
>> Hilary had alleged sufficient facts to state a claim under the FHA (or
>> FHAA). �
>
>Hang on a sec! Federal court is a notice pleading jurisdiction, not a
>fact pleading one. VERY few fact-type allegations in the complaint
>are necessary to survive a 12b6 motion.
Some might disagree with you since Iqbal. :-)
Barry
So if you were the building's
> management and you have a single tenant who making complaints that you
> can't verify... what then?
"Can't" is too strong a word since the manager didn't take Hilary up
on her suggestion to listen to the noise. And she has that sensitive
hearing thing, which you can't expect the majority of tenants to have.
Barry
> On Nov 2, 5:56�pm, Barry <ba...@polisource.com> wrote:
>
> > > So which is it? Is the apartment a danger to her health, or a loving
> > > warm environment which she loves?
>
> > It's an apartment she loves except for the noise. It's a danger to her
> > health with the noise. That's kind of obvious. You might make a good
> > (or typical) lawyer, but you'd make an unfair judge.
>
> positions.
My point is that she's not, but you have to look at the context. If
she was asked to clarify her "conflicting positions" I think we all
know she would and we have enough information to have a decent idea of
how. She's not insane.
> What Hilary wants is to keep the same
> apartment but not the neighbor. �But she evidently cannot have it that
> way.
I don't see evidence of that, but what she wanted was quiet, and she
would have preferred moving to an identical apartment in the same
building rather than being evicted.
grendal
> > You're missing his point. He is saying she is taking conflicting
> > positions.
>
> My point is that she's not, but you have to look at the context. If
> she was asked to clarify her "conflicting positions" I think we all
> know she would and we have enough information to have a decent idea of
> how. She's not insane.
>
Barry,
Its not a question of asking Hilary to 'clarify' her conflicting
position.That's not the job of the defense counsel. Nor the judge. Its
more of a matter that it destroys her case. Hilary's complaint is that
she suffers from PTSD and Clinical Depression where a hyper
sensitivity to noise is a symptom. She raised a noise complaint to her
building's management and she felt that they did not do enough to
rectify the situation. In other posts she admitted that the noise was
so bad that sought help from her PCP.
So when she was faced with the announcement that they were letting her
out of her lease ASAP, she then decided that she didn't want to leave
but stay. Hence the inconsistency. Its a problem in that it is bad
enough to constitute a threat to her health, yet when faced with
losing her lease as a reasonable accommodation, she then decided that
she could 'live' with the noise and that she 'loved' her apartment.
This is the conflict in Hilary's position. If the noise was bad enough
to warrant health concerns and a request for a reasonable
accommodation, then how is it that when a reasonable accommodation is
granted, she backs down and refuses to move?
With respect to questioning Hilary's sanity, her mental health is
actually at the center of this.
What would cause the complex to grant Hilary not only a release from
her lease, but also to 'forcibly evict' her?
> > What Hilary wants is to keep the same
> > apartment but not the neighbor. But she evidently cannot have it that
> > way.
>
> I don't see evidence of that, but what she wanted was quiet, and she
> would have preferred moving to an identical apartment in the same
> building rather than being evicted.
Barry, are you playing devil's advocate?
There is no evidence,at least presented here, that Hilary requested to
be moved to a different unit. What we do know is that Hilary admitted
here that she wanted out and that she sought help from her PCP. Hilary
either omits this option, or that it was never presented as an option.
Because we don't know what the defense said in their arguments we
don't know if this issue was raised or even discussed. There are
legitimate reasons why this accommodation wasn't offered. Either an
empty unit that was comparable to Hilary's current unit didn't exist,
or Hilary said something that would give cause for the complex to not
want to lease a unit to her.
You can't just say that she has a case because this option wasn't
explored in Hilary's complaint.
However I can say that she doesn't have a case because she hasn't
presented any evidence to support that her rights were violated under
the FHA.
Her initial complaint, assuming that she can show that she is a member
of the protected class, has to demonstrate that the actions of the
complex in granting her a release from her lease were in fact a
violation of her rights.
The ADA and FHA cases are an uphill battle.
Barry
> Its not a question of asking Hilary to 'clarify' her conflicting
> position.That's not the job of the defense counsel. Nor the judge.
In some cases it would probably be an abuse of discretion for the
judge not to seek clarification.
> Her initial complaint, assuming that she can show that she is a member
> of the protected class, has to demonstrate that the actions of the
> complex in granting her a release from her lease were in fact a
> violation of her rights.
As A Michigan Attorney said above, "Federal court is a notice pleading
Cy Pres
<im_g...@hotmail.com> wrote:
>This is the conflict in Hilary's position. If the noise was bad enough
>to warrant health concerns and a request for a reasonable
>accommodation, then how is it that when a reasonable accommodation is
>granted, she backs down and refuses to move?
I don't buy the idea that it is a "reasonable accommodation" to a
person with a disability to throw them out on the street. If Hilary
has a difficulty here, it is in establishing the other elements of her
complaint, i.e. that she is a member of a protected class, that the
particular symptom of which she complains is sufficient to trigger the
obligation of the landlord to make a reasonable accommodation, and
that a reasonable accommodation was actually available. If there was
no other quieter apartment, the existence of a reasonable
accommodation is going to be difficult to establish, especially if the
condition complained of did not disturb anyone else.
If she could have moved to a quieter apartment, and they chose instead
to terminate her lease, that would not suffice as a reasonable
accommodation. It would only suffice as "reasonable" in the lack of
any alternative.
I think the difficulty is going to be establishing that a reasonable
accommodation was even legally required, but that if that *is*
established, I do not believe terminating her lease would suffice as
reasonable accommodation, at least if there were other *more*
reasonable accommodations.
There may be an issue of waiver if she voluntarily accepted the
termination instead of challenging it, but that's a pretty
fact-specific issue and I'm not sure if it's possible to waive rights
under the FHA like that.
Bob
wrote:
>On Nov 6, 4:43�pm, grendal <im_gu...@hotmail.com> wrote:
>
>> Its not a question of asking Hilary to 'clarify' her conflicting
>> position.That's not the job of the defense counsel. Nor the judge.
>
>In some cases it would probably be an abuse of discretion for the
>judge not to seek clarification.
Federal judges screen IFP pro se complaints for failure to state a
claim. Generally, if the complaint has problems, the plaintiff is
instructed on the problems and given leave to amend.
>> Her initial complaint, assuming that she can show that she is a member
>> of the protected class, has to demonstrate that the actions of the
>> complex in granting her a release from her lease were in fact a
>> violation of her rights.
>
>As A Michigan Attorney said above, "Federal court is a notice pleading
>jurisdiction, not a fact pleading one. VERY few fact-type allegations
>in the complaint are necessary to survive a 12b6 motion."
Two very different things are being confused here, what Hilary has to
do at the pleading stage (what Barry and AMA are talking about - I've
already expressed my disagreement with AMA's articulation of the
standard) and what Hilary has to do to win (what Grendal is talking
about).
grendal
> On Fri, 6 Nov 2009 13:43:08 -0800 (PST), grendal
>
> >This is the conflict in Hilary's position. If the noise was bad enough
> >to warrant health concerns and a request for a reasonable
> >accommodation, then how is it that when a reasonable accommodation is
> >granted, she backs down and refuses to move?
>
> I don't buy the idea that it is a "reasonable accommodation" to a
> person with a disability to throw them out on the street.
Stop right there!
Hilary wasn't 'thrown out on to the street'. That sort of language is
overly dramatic and taken at face value it implies something that
didn't occur.
Its this use of colorful language that put Hilary in her situation in
the first place.
Specifically the FHA states that the building must make a reasonable
accommodation when a member of the protected class requests it.
Again, what constitutes a reasonable accommodation is left up to
interpretation. Hilary did file a HUD complaint, the investigating
agency did investigate and yet they didn't find anything to pursue.
Its a good indication that Hilary doesn't have a case. Sure HUD is a
government agency. But they are there as advocates and protecting the
rights of the protected class.
We *DO* *NOT* know if there was another comparable unit available.
Even if there was another unit, the building management company could
have decided that moving Hilary to another unit was not reasonable.
I'm not going to build the defense's case for them, but Hilary, even
here made damaging remarks to her case. Hilary stated that staying in
the unit pose and immediate threat to her health. Because of this the
defense can show that not only was the release of Hilary from her
lease reasonable, but the best choice for Hilary. This is regardless
if Hilary changes her mind or not. Hilary set up the situation where
she limited her options and the complex's options.
When this is all over it would be interesting to see what documents
were filed by the defense.
HTH
-G
grendal
> On Nov 6, 4:43 pm, grendal <im_gu...@hotmail.com> wrote:
>
> > Its not a question of asking Hilary to 'clarify' her conflicting
> > position.That's not the job of the defense counsel. Nor the judge.
>
> In some cases it would probably be an abuse of discretion for the
> judge not to seek clarification.
>
It would be one thing if Hilary said something that was an allusion
and the judge didn't understand what she said or meant.
Its different when Hilary says one thing in one numbered paragraph but
then says something in a different numbered paragraph that contradicts
the first, yet both paragraphs are coherent and understandable.
> As A Michigan Attorney said above, "Federal court is a notice pleading
> jurisdiction, not a fact pleading one. VERY few fact-type allegations
> in the complaint are necessary to survive a 12b6 motion."
Ok.
Here's a link to a newspaper article that talks about Federal Notice
Pleadings Vs. State Fact Pleading. (Its a good read.)
http://www.judgeltd.com/pdf/federalcourts080806.pdf
First,
"The purpose of a motion to dismiss is to test the sufficiency of the
complaint, not to decide the merits of the case. Pelfresne v.
Stephens, 35 F.Supp.2d 1064(N.D.Ill. 1999) (citing Gibson v. City of
Chicago, 910 F.2d 1510 (7th Cir. 1990))."
So for the defense to ask for a motion to dismiss, would mean that
they are arguing that Hilary didn't sufficiently show that there was
merit to her case.
"The allegations of a complaint should not be dismissed for failure to
state a claim 'unless it appears beyond a doubt that the plaintiff can
prove no set of facts in support of his claim which would entitle him
to relief.' "
And that's the thing. Assume that Hilary is a member of the protected
class. Assume that the 'facts' as Hilary state them are true. Does
what Hilary claim demonstrate that she should be entitled to relief?
If we assume that everything Hilary said was true, does she show that
she asked for a reasonable accommodation and that she was denied a
reasonable accommodation? This is the burden of proof that Hilary must
meet.
Hilary can't just say "They violated my rights under the FHA..." and
expect it to be sufficient to survive. Her complaint would have to
show that she asked for a reasonable accommodation and that the
building hadn't made an attempt to accommodate her. Note, I'm not
saying that Hilary would have to prove this, I am saying that her
complaint would have to spell out that this was the case and assuming
if these facts to be true, she would be entitled to relief.
Here's Hilary's complaint... She had a noise complaint against a
neighbor and because of her Clinical Depression, her hypersensitivity
to noise made her current living arrangement's intolerable. Hilary
further complained that such a current living environment was
detrimental to her health and sought alternatives that would remove
this issue. The building complies by releasing her from her lease.
So, the question... Assuming that all facts as stated are true, is
releasing Hilary from her lease not considered a reasonable
accommodation?
Since it *is* a reasonable accommodation, it means that Hilary failed
to state a claim that would entitle her relief.
And that's the point. Hilary doesn't have a case.
Daniel R.Reitman
wrote:
>As A Michigan Attorney said above, "Federal court is a notice pleading
>jurisdiction, not a fact pleading one. VERY few fact-type allegations
>in the complaint are necessary to survive a 12b6 motion."
That said, if you're in federal court in a fact pleading state, expect
any judge who previously practiced or sat in state court to be used to
fact pleading. Under those circumstances, it would be advisable to be
ready to ask for leave to replead (with more facts) if the motion is
lost. It is a rare judge who won't completely dismiss a case at the
pleading stage if there's a reasonable chance the plaintiff can meet
that judge's expectations with a revised complaint.
Daniel Reitman
FOR EDUCATIONAL PURPOSES ONLY. NO ATTORNEY-CLIENT RELATIONSHIP
INTENDED.
Bob
<im_g...@hotmail.com> wrote:
>So for the defense to ask for a motion to dismiss, would mean that
>they are arguing that Hilary didn't sufficiently show that there was
>merit to her case.
The defense did not file a motion to dismiss. They filed an answer.
grendal
> >So for the defense to ask for a motion to dismiss, would mean that
> >they are arguing that Hilary didn't sufficiently show that there was
> >merit to her case.
>
> The defense did not file a motion to dismiss. �They filed an answer.
Bob,
What do you think is meant by 12(b)(6) ?
http://en.wikipedia.org/wiki/Federal_Rules_of_Civil_Procedure
"Rule 12(b) describes pretrial motions that can be filed.
1. lack of subject matter jurisdiction
2. lack of personal jurisdiction
3. improper venue
4. insufficient process
5. insufficient service of process
6. failure to state a claim
7. failure to join a party under Rule 19.
"
Look at #6.
But you pulled the statement out of context. Here's the comment I was
responding to:
> As A Michigan Attorney said above, "Federal court is a notice pleading
> jurisdiction, not a fact pleading one. VERY few fact-type allegations
> in the complaint are necessary to survive a 12b6 motion."
Now go back and re-read my post. Also read the article I linked too.
The legal question...
Hilary's claim is that she is a member of the protected class under
the FHA and that the building complex did not grant her a reasonable
accommodation.
Yet the release of Hilary from her lease is a reasonable
accommodation. So Hilary fails to meet her burden. Even under the more
Liberal statutes in Federal Court.
You can't just say that they 'violated my rights'. You have to be a
bit more specific and state how they violated your rights under the
FHA.
HOW CAN HILARY CLAIM THAT HER RIGHTS WERE VIOLATED WHEN SHE WAS
GRANTED A REASONABLE ACCOMMODATION?
Sorry for shouting. This was a point raised to Hilary many, many
months ago.Yet instead of addressing this basic key issue of her case,
she's gone up and down on all sorts of different legal questions and
theories that don't help her with her case. She has equated herself
with an incarcerated person, she's pointed to unrelated cases and
claimed they were very similar to hers. She has put herself through
unnecessary pain and suffering by continuing to pursue this in court.
In a 12(b)(6) hearing, that is the hurdle that Hilary must overcome.
Focusing on anything else is a waste of time.
Note: Stating that IANAL and that these are my opinions would be
redundant.
HTH
-G
Bob
<im_g...@hotmail.com> wrote:
>On Nov 9, 6:38�pm, Bob <x...@xxx.com> wrote:
>> On Sun, 8 Nov 2009 14:08:51 -0800 (PST), grendal
>>
>> <im_gu...@hotmail.com> wrote:
>> >So for the defense to ask for a motion to dismiss, would mean that
>> >they are arguing that Hilary didn't sufficiently show that there was
>> >merit to her case.
>>
>> The defense did not file a motion to dismiss. �They filed an answer.
>
>What do you think is meant by 12(b)(6) ?
[snip]
>In a 12(b)(6) hearing, that is the hurdle that Hilary must overcome.
>Focusing on anything else is a waste of time.
My only point is there is no motion to dismiss and therefore no
hearing. Why you would speak hypothetically about something that is
effectively no longer possible eludes me.
As others have speculated, my *guess* is that after discovery has
completed, the defense will file a motion for summary judgment.
That's the usual course in these kinds of cases. Assuming I'm right,
summary judgment is Hilary's biggest upcoming hurdle. Like most pro
se litigants without funds, she'll also have significant problems
conducting discovery.
Your constant repetition that Hilary's case lacks merit, even if true,
is tiresome. I figured it was a waste of time to respond to your last
post, but I wanted to set the record straight. I won't respond to you
after this post.