United States District Court, D. Colorado
Brooke Jackson United States District Judge.
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.
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.  He also claims
that after he filed that suit the HOA stopped cleaning trash
in the hallway and staircase near his unit.
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.
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).
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.
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.
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.
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.
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.
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
• 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 ...