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Tokh v. Water Tower Court Homeowners Association

June 12, 2006

AZIZ A. TOKH, PLAINTIFF,
v.
WATER TOWER COURT HOMEOWNERS ASSOCIATION, CAROL MARIN, PRESIDENT, JUDITH HOFER, TREASURER, MARY KARACSON,SECRETARY, CONDOMINIUM MANAGEMENT SERVICES COMPANY, SEAN DOHERTY, AGENT, DEFENDANTS.



The opinion of the court was delivered by: Amy J. St. Eve, District Court Judge

MEMORANDUM OPINION AND ORDER

Pro se Plaintiff Aziz A. Tokh brings the present action against Defendants Water Tower Court Homeowners Association ("WTCHOA") and certain members of WTCHOA's Board of Directors, Carol Marin, Judith Hofer, and Mary Karacson, along with Condominium Management Services Company ("CMS") and Sean Doherty of CMS under Title VIII of the Civil Rights Act of 1968, 42 U.S.C. §§ 3601-3619, commonly known as the Fair Housing Act. Before the Court is Defendants' Motion to Dismiss Tokh's pro se Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). Also before the Court is Plaintiff's Motion to Disqualify Defendants' Counsel. For the reasons discussed below, the Court grants in part and denies in part Defendants' motion and denies Plaintiff's motion. Further, the Court grants Plaintiff leave to file an amended complaint.

LEGAL STANDARDS

The purpose of a motion to dismiss pursuant to Rule 12(b)(6) is to test the legal sufficiency of a complaint, not the factual sufficiency. Szabo v. Bridgeport Mach., Inc., 249 F.3d 672, 675-76 (7th Cir. 2001); see also Cler v. Illinois Educ. Ass'n, 423 F.3d 726, 729 (7th Cir. 2005) (motion to dismiss challenges complaint's sufficiency). The Court will only grant a motion to dismiss if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Centers v. Mortgage, Inc., 398 F.3d 930, 933 (7th Cir. 2005) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957)). The Court must assume the truth of the facts alleged in the pleadings, construe the allegations liberally, and view them in the light most favorable to the plaintiff. Centers, 398 F.3d at 333.

Because Tokh is proceeding pro se, the Court liberally construes his Complaint. See Marshall v. Knight, 445 F.3d 965, 969 (7th Cir. 2006). A plaintiff, however, can plead himself out of court by alleging facts which show that he has no claim. Doe v. Smith, 429 F.3d 706, 708 (7th Cir. 2005).

BACKGROUND

Tokh first alleges that Defendants violated the Fair Housing Act by refusing to make reasonable accommodations "in the rules, policies, practices, or services" for a disabled person's use of his housing unit. (R. 1-1, Compl. ¶ B6.) Specifically, Tokh alleges that he made modifications to his housing unit that involved creating an accessible route for Tokh's elderly visitors who are mobility impaired and that thereafter the Board violated his rights by fining him for the modifications he made. (Id. ¶¶ B3, B4, B5.)

Next, Tokh alleges that Defendants violated the Act because they intentionally discriminated against him based on his race, national original, and religion. (Id. ¶¶ B1, C7.) Tokh specifically alleges that there has been a pattern of coercion and intimidation by Defendants to remove him from the Board of Directors of WTCHOA and the community as a homeowner. (Id. ¶ C1.)

ANALYSIS

I. Motion to Dismiss

A. Reasonable Accommodation

The Act requires public entities "to reasonably accommodate a disabled person by making changes in rules, policies, practices or services as is necessary to provide that person with access to housing that is equal to that of those who are not disabled." Good Shepherd Manor Found., Inc. v. Momence, 323 F.3d 557, 561 (7th Cir. 2003). Specifically, Section 3404(f)(3)(A) of the Act makes it unlawful to refuse "to permit, at the expense of the handicapped person, reasonable modifications of existing premises occupied or to be occupied by such person if such modifications may be necessary to afford such person full enjoyment of the premises."

Tokh's reasonable accommodation claim fails because he does not allege that he is disabled or that anyone living in his housing unit is disabled. See Good Shepherd, 323 F.3d at 561. Instead, he alleges that he made modifications to his property for his elderly, handicapped visitors. (R. 1-1, Compl. ΒΆΒΆ B3, B4.) Tokh's allegation that he made the modifications for visitors is a binding admission, see Gutierrez v. Peters, 111 F.3d 1364, 1374 (7th Cir. 1997), that vitiates his reasonable accommodation claim. Accordingly, Tokh has alleged facts that defeat his reasonable ...


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