Phan v. Hammersmith Management, Inc.

          ORDER

          R. Brooke Jackson United States District Judge.

         The case is before the Court on defendant's motion to (partially) dismiss and United States Magistrate Judge Michael E. Hegarty's recommendation that the motion be granted. For the reasons discussed in this order, I accept the recommendation and grant the motion for the reasons discussed in this order.

         FACTS AND HISTORY

         On June 8, 2015 Kent Vu Phan detected a foul odor emanating from beneath his recently purchased condominium. He reported the problem to the management of his Home Owners' Association but, he says, they did nothing to identify or remedy it. On July 30, 2015, concerned that what he variously calls either the “pollution” or the “contamination” was exacerbating his asthma, he sued the HOA management and others in the Arapahoe County District Court. Things did not go well there. He alleges that judges in that court ignored his concerns. Indeed (and no doubt with no evidence) he claims that the judges intentionally protected the defendants. ^[1] He also claims that after he filed that suit the HOA stopped cleaning trash in the hallway and staircase near his unit.

         Mr. Phan dropped his state case and turned to the federal court. On December 12, 2016 he filed the first of what ultimately have become four cases arising from the contamination beneath his condominium unit. Phan v. Hipple, No. 16-cv-03111-LTB (“Hipple I”). He sued two HOA managers, the seller of the unit (and her attorney), a realtor, an inspector and an insurance company. He asserted that he had been discriminated against because of his disabilities and his race, invoking the Americans with Disabilities Act (“ADA”) and 42 U.S.C. § 1981. He also claimed violation of the Clean Air Act; and unspecified torts; and insurance bad faith. The district court, sua sponte, dismissed the claims in his amended complaint: the ADA and Clean Air Act claims with prejudice as legally frivolous; the racial discrimination claims without prejudice for failing to meet the Rule 8 pleading standard; and the state law claims because the court declined to exercise supplemental jurisdiction. Mr. Phan's appeal was dismissed for lack of jurisdiction on August 24, 2017.

         On September 28, 2017 Mr. Phan filed Phan v. National Jewish Health, No. 17-cv-02353-LTB, which focused on medical providers who allegedly refused to diagnose that the contamination was a factor that caused or exacerbated asthma and COPD); his insurance agency; and two attorneys. He asserted civil rights claims and violations of the ADA and the Rehabilitation Act. The case was dismissed by the district court on July 31, 2018, and the judgment was affirmed on appeal on February 21, 2019 (mandate).

         On November 27, 2017, while the National Jewish case was pending, Mr. Phan filed Phan v. Hipple, No. 17-cv-2853-LTB (Hipple II). This was largely a repetition of Hipple I. The same defendants were named. The case was dismissed by the court, sua sponte, on December 19, 2017. The court held that the federal claims were barred by res judicata and declined to exercise supplement jurisdiction over the state claims. ECF No. 5 in that case at 7. The court warned Mr. Phan about possible sanctions if he persists in filing repetitive complaints. Id. The district court's judgment was affirmed on appeal on June 19, 2018 (mandate). In its order and judgment issued May 18, 2018 the Tenth Circuit panel found that the 1981 claim was properly dismissed for failure to state a valid claim, and that the other federal claims were barred by res judicata. No. 18 in that case at 8.

         On June 1, 2018, shortly after the Tenth Circuit issued its order and judgment in the second Hipple case, Mr. Phan filed the present case. The factual allegations regarding the contamination problem emanating from beneath his condominium unit remain essentially the same. This time Mr. Phan named Hammersmith Management, Inc., apparently the current manager of the condominium complex, as the defendant. Mr. Phan's claims as set forth in his initial complaint were based on the ADA and the Rehabilitation Act (disability discrimination); 42 U.S.C. § 1981 (racial discrimination); “environmental harassment;” and “Colorado Torts.” See ECF No. 1.

         Once again the case was initially assigned to Judge Babcock, who for several years has conducted initial reviews of in forma pauperis cases filed by unrepresented parties. In a sua sponte order issued on July 31, 2018 Judge Babcock provided thumbnail sketches of nine cases that Mr. Phan had filed in this district within the preceding two years, including the three previous cases arising from the condominium contamination issue. ECF No. 5 at 2-9. He then considered whether any claims in the present case were barred by res judicata. Although the court had found a res judicata bar in Hipple II, this time the court determined that it was “unclear whether privity exists between the Defendant in this case and those in previous cases.” Therefore, Judge Babcock declined to dismiss the case based on res judicata “at this time.” ECF No. 5 at 4.

         However, the court did find that the facts alleged did not support an arguable claim for relief under the ADA and dismissed that claim with prejudice as legally frivolous. Id. at 4-6. Finding that the complaint provided no factual allegations in support of claims of “environmental harassment” or “Colorado Torts, ” the court dismissed those claims without prejudice for failure to meet Rule 8's pleading standard.

         As for the § 1981 claim, the court noted that Mr. Phan alleged that condominium management has refused to clean the area in and around his unit because of his race (Asian), and that on May 16, 2018 an employee of the defendant “affirmed that my race was the motivator for disdain.” The court found those allegations to be sufficient to warrant drawing the §1981 claim to a district judge, which is how I ended up being assigned to the case.^[2]

         On September 17, 2018 Mr. Phan filed an amended complaint. ECF No. 14. Having compared the original and amended versions, I find that the amended complaint is the substantially the same as the original except:

• In the section on “Jurisdiction, ” the amended complaint adds “m-HOA-Breached Fiduciary Duties” and “n-ADA Handicap Parking.” Id. at 4.

• In the “First Claim for Relief and Support Factual Allegations” he adds details concerning the impact of the contamination on his unit. Id. at 10. He also asserts complaints about the HOA's failure to maintain landscaping, the storm sewer pipe (which became blocked, resulting in an assessment), and sprinklers. Id. at 12-13. He also notes that the HOA's fees have increased while its services have not. Id. at 13.

• He states that he has requested handicapped parking, but his request has been ignored. Id. at 13-14. His Request for Relief section adds a request for an order that the defendant provide a handicapped ...