                Case: 13-13283     Date Filed: 02/28/2014   Page: 1 of 7


                                                                [DO NOT PUBLISH]

                  IN THE UNITED STATES COURT OF APPEALS

                           FOR THE ELEVENTH CIRCUIT
                             ________________________

                                   No. 13-13283
                               Non-Argument Calendar
                             ________________________

                       D.C. Docket No. 5:12-cv-00178-RS-EMT



AL JEFFERSON DAVIS,
BRITTANY DAVIS,

                                                    Plaintiffs - Appellants,

versus

HABITAT FOR HUMANITY OF BAY COUNTY, INC.,

                                                    Defendant - Appellee.

                             ________________________

                     Appeals from the United States District Court
                         for the Northern District of Florida
                            ________________________

                                  (February 28, 2014)

Before HULL, MARCUS and WILSON, Circuit Judges.

PER CURIAM:

         Appellants Al and Brittany Davis (the Davises) appeal the district court’s

order granting summary judgment in favor of the appellee, Habitat for Humanity
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(Habitat), and the district court’s denial of their motion for a new trial or rehearing.

After consideration of the parties’ briefs and the record on appeal, we affirm.

   I.      Facts

        Habitat for Humanity is a non-profit organization that builds simple and

affordable housing for low-income families. Applicants are considered if their

present housing is inadequate and they are unable to obtain adequate housing

through conventional means. From the pool of applicants, Habitat selects “partner

families” to become homeowners. Completed homes are sold to partner families at

cost and financed with zero-interest loans.

        Al and Brittany Davis are siblings. Al is an able-bodied 38-year-old and

Brittany Davis is a 35-year-old hemiplegic, who, as a result of a car accident, is

confined to a wheelchair and requires 24-hour care that is provided by either her

family or a caregiver.

        In September 2004, the Davises filed a joint application for a Habitat home.

Prior to construction, a representative from Habitat met with the Davises and their

mother to discuss Brittany’s needs. The Davises also met with a rehabilitation

engineer to discuss how to make the home most accessible to Brittany.

        Foundation for the home was poured in 2006. By August 2007, substantial

work had been done on the home but the Davises were not happy with the

construction. The Davises’ attorney sent a letter to Habitat, pointing out all the


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problems with the home. In October 2007 the home was substantially complete,

and the Davises conducted a walk-through to identify items that needed repairs.

Habitat provided the Davises with a “punch list” that would allow the Davises to

record any issues they had with the home. The Davises never completed or

returned the punch list to Habitat. In the following months, there appears to have

been a breakdown in communication between the parties and discussions became

adversarial and heated.

         A Certificate of Occupancy was issued for the house in May 2008. The

Davises and Habitat, however, were never able to come to an agreement that the

Davises would purchase the home. Habitat offered to build another home for the

Davises but the offer was declined because the alternative locations were not

suitable for Brittany. The original home was eventually purchased by a different

partner family.

         On June 17, 2011, the Davises filed their initial complaint in state court

alleging discrimination pursuant to the Fair Housing Act (FHA), 42 U.S.C. §§

3601–3604. Habitat removed the case to federal court and moved for summary

judgment. The district court granted its motion. The Davises filed a motion for a

new trial or rehearing. The district court denied their motion. This appeal follows.

   II.      Discussion

            A. Summary Judgment


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      On appeal, the Davises first argue that the district court erred in granting

Habitat’s motion for summary judgment. We review de novo the district court’s

grant of summary judgment. Loren v. Sasser, 309 F.3d 1296, 1301 (11th Cir.

2002) (per curiam). Summary judgment is appropriate only “if the movant shows

that there is no genuine dispute as to any material fact and the movant is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(a). “In determining whether a

genuine issue of material fact remains for trial, [we] must view all evidence and

make all reasonable inferences in favor of the party opposing summary judgment.”

Loren, 309 F.3d at 1301–02 (internal quotation marks omitted).

      The FHA prohibits discriminatory housing practices based on an

individual’s disability or handicap. 42 U.S.C. § 3604(f)(1)(A). Discrimination

under the FHA includes “refusal to make reasonable accommodations in rules,

policies, practices, or services, when such accommodations may be necessary to

afford such person equal opportunity to use and enjoy a dwelling.” 42 U.S.C. §

3604(f)(3)(B). “[H]andicapped people must be afforded the same (or ‘equal’)

opportunity to use and enjoy a dwelling as non-handicapped people, which occurs

when accommodations address the needs created by the handicaps.” Schwarz v.

City of Treasure Island, 544 F.3d 1201, 1226 (11th Cir. 2008) (emphasis in

original). To prevail on a failure to accommodate claim, a plaintiff must establish

that (1) she is disabled or handicapped within the meaning of the FHA, (2) she


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requested a reasonable accommodation, (3) such accommodation was necessary to

afford her an opportunity to use and enjoy her dwelling, and (4) the defendants

refused to make the requested accommodation. See id. at 1218–20; United States

v. Hialeah Hous. Auth., 418 F. App’x 872, 875 (11th Cir. 2011) (per curiam). A

plaintiff is not entitled to the accommodation of his or her choice, but is entitled

only to a reasonable accommodation. Stewart v. Happy Herman’s Cheshire

Bridge, Inc., 117 F.3d 1278, 1286 (11th Cir. 1997).

      The Davises contend that Habitat violated the FHA by failing “to make

reasonable accommodations in rules, policies, practices, or services,” which were

necessary to afford the Davises an equal opportunity to use and enjoy the home.

Specifically, the Davises claim Habitat did not allow them to communicate about

needed modifications and failed to make the modifications the Davises requested.

That is, Habitat’s policy of not offering customized homes prevented Habitat from

providing equal access to the Davises. Habitat responds that the Davises fail to

establish a prima facie case of discrimination as the record does not reveal that the

Davises made a request for an accommodation that was denied by Habitat.

Additionally, the FHA does not require Habitat to comply with every requested

modification or accommodation without regard to whether the request is

appropriate and reasonable.




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      The Davises cannot prove discrimination under the FHA because there is

nothing in the record to demonstrate that Habitat refused to make the requested

accommodation of allowing the Davises to communicate with Habitat about

needed modifications. Habitat met with the Davises and with a vocational

rehabilitation engineer at the Davises’ request and agreed to modify the building

plan for the home. Habitat then built a home with the majority of the

modifications requested. As the district court correctly found, Brittany could have

used and enjoyed the home with those modifications. To the extent that Habitat

had a policy of not building custom homes, it certainly altered this policy when it

designed and built the Davises’ home. Accordingly, summary judgment was

proper.

          B. Motion for a New Trial or Rehearing

      The Davises claim that the district court erred in denying their motion for a

new trial or rehearing. “A district court has sound discretion whether to alter or

amend a judgment pursuant to a motion for reconsideration, and its decision will

only be reversed if it abused that discretion.” Wilchombe v. TeeVee Toons, Inc.,

555 F.3d 949, 957 (11th Cir. 2009). The Davises raised a new legal theory—that

Habitat failed to accommodate under § 3604(f)(3)(B)— in their motion for

reconsideration. We agree with the district court that this theory could have been

raised prior to the entry of summary judgment. “A motion for reconsideration


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cannot be used to relitigate old matters, raise argument or present evidence that

could have been raised prior to the entry of judgment. This prohibition includes

new arguments that were previously available, but not pressed.” Id. (internal

citations and quotation marks omitted). Accordingly, the district court did not

abuse its discretion in denying the Davises’ motion. See id.

      AFFIRMED.




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