     Case: 16-40118      Document: 00513575039         Page: 1    Date Filed: 06/30/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 16-40118                         United States Court of Appeals
                                  Summary Calendar                                Fifth Circuit

                                                                                FILED
                                                                            June 30, 2016
SHADDONNA DIANE MILES,                                                     Lyle W. Cayce
                                                                                Clerk
              Plaintiff - Appellant

v.

HOUSING AUTHORITY OF TEXARKANA, TEXAS; VICKI NELSON,
Employee,

              Defendants - Appellees



                   Appeal from the United States District Court
                        for the Eastern District of Texas
                              USDC No. 5:15-CV-37


Before KING, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
       Plaintiff–Appellant Shaddonna Miles filed suit against Defendants–
Appellees Housing Authority of Texarkana, Texas, (HATT) and Vicki Nelson,
alleging that HATT discriminated against her under the Fair Housing Act
(FHA). The district court dismissed her complaint for failure to state a claim




       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                 No. 16-40118
because Miles failed to allege facts supporting a prima facie case of
discrimination. We agree and AFFIRM the judgment of the district court.
      HATT, a government entity in Bowie County, Texas, operated the
Affordable Homeownership Program (the Program) to allow qualified
applicants to buy or build a new home in a specified neighborhood.           The
Program received funding through the Hope VI grant provided by the United
States Department of Housing and Urban Development (HUD).                Eligible
applicants for the Program must obtain a first mortgage to purchase a home
from an independent lender, and then the Program provides a second mortgage
for the difference between the first mortgage and the price of the home. As the
district court noted, the Program requires applicants, in addition to satisfying
other requirements, to “have sufficient creditworthiness to be able to secure a
30-year fixed market rate loan from a private lender at the maximum level
commensurate with [the applicant’s] income and the lender’s underwriting
criteria.” Miles enrolled in the Program in 2008, and Nelson began working
for HATT in 2013. In May 2014, Nelson informed Miles that she was ready to
begin the process of being prequalified for a mortgage through an independent
lender. However, Miles was denied a loan for a home by Farmer’s Bank, the
independent lender, because of Miles’s low credit score.
      On April 27, 2015, Miles filed suit against HATT and Nelson, asserting
a discrimination claim based on Miles’s disability. In her complaint, Miles
alleged that she has a disability—though she never identified that disability—
and that HATT failed to provide assistance to her through the Program,
resulting in damages of $5,000,000. The defendants moved to dismiss Miles’s
complaint for failure to state a claim, arguing that they did not discriminate
against Miles because she failed to satisfy all of the criteria for home-buying
assistance through the Program and that Miles failed to identify a qualifying


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                                 No. 16-40118
handicap under the FHA. Nelson also moved for dismissal based on qualified
immunity.
      The district court referred the case to a magistrate judge who
recommended dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6)
for two reasons. The magistrate judge found that because Miles never disputed
that she failed to meet all of the eligibility criteria for assistance under the
Program—she never received a mortgage from an independent lender—the
defendants had not discriminated against her. The magistrate judge further
found that Miles had failed to allege that her disability constituted a handicap
under the FHA. The magistrate judge also concluded that Nelson was entitled
to qualified immunity, as Miles alleged no “acts indicating Nelson violated a
clearly established right or that her actions were objectively unreasonable.”
The district court adopted the magistrate judge’s report and recommendations
and dismissed Miles’s cause of action with prejudice. Miles timely appealed.
      We review de novo a district court’s grant of a motion to dismiss for
failure to state a claim. United States ex rel. Grubbs v. Kanneganti, 565 F.3d
180, 185 (5th Cir. 2009). “To survive a motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to ‘state a claim to relief
that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). This court
“accept[s] all well-pleaded factual allegations as true and interpret[s] the
complaint in the light most favorable to the plaintiff.” United States ex rel.
Spicer v. Westbrook, 751 F.3d 354, 365 (5th Cir. 2014).
      In her complaint, Miles alleged that HATT and Nelson discriminated
against her based on her disability by denying her assistance in purchasing a




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home. 1 Under 42 U.S.C. § 3604(f)(1), “it [is] unlawful . . . [t]o discriminate in
the sale or rental, or to otherwise make unavailable or deny, a dwelling to any
buyer . . . because of a handicap” of the buyer. See City of Edmonds v. Oxford
House, Inc., 514 U.S. 725, 728 (1995) (“The . . . FHA . . . prohibits discrimination
in housing against, inter alios, persons with handicaps.”). The FHA defines a
handicap as “a physical or mental impairment which substantially limits one
or more of [a] person’s major life activities, . . . a record of having such an
impairment, or . . . being regarded as having such an impairment.” 42 U.S.C.
§ 3602(h). Although Miles stated throughout her complaint that she has a
disability, she never identified this disability, alleged that this disability has
any effect on her major life activities, alleged that there was a record of a
qualifying impairment, or alleged that she was regarded as having a qualifying
impairment. See Iqbal, 556 U.S. at 678. Accordingly, we agree with the district
court that Miles failed to state a claim for discrimination under the FHA
because she failed to allege that she has a handicap as defined by the FA.
       We further agree with the district court that Miles failed to state a
discrimination claim because she failed to establish that she was qualified to
receive assistance under the Program. In Petrello v. Prucka, 484 F. App’x 939,
942 (5th Cir. 2012) (per curiam) (unpublished), this court explained that one of
the elements of “a prima facie claim of housing discrimination under . . . the
FHA” is that the plaintiff “applied for and was ‘qualified to purchase’ the
housing.” Here, the district court determined that Miles could “not establish a
claim . . . based on discrimination [because] she never qualified for assistance.”



       1 In her briefing on appeal, Miles alludes to an intentional infliction of emotional
distress claim against Nelson and a negligence claim against HATT. “Although we liberally
construe the briefs of pro se appellants, we also require that arguments must be briefed to be
preserved.” Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993) (quoting Price v. Digital Equip.
Corp., 846 F.2d 1026, 1028 (5th Cir. 1988)). Miles has not sufficiently briefed these
arguments, so they are waived.
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                                 No. 16-40118
We see no error in this determination. Obtaining a first mortgage from an
independent lender was a stated condition of assistance under the Program,
and Miles alleged nowhere in her complaint that she satisfied this condition.
Because she has not alleged that she was qualified to purchase the housing,
she has failed to state a claim of discrimination under the FHA.
      Finally, we find no error in the district court’s conclusion that Nelson
was entitled to qualified immunity. Nelson pleaded qualified immunity, and
once a defendant has pleaded a good-faith entitlement to qualified immunity,
“the burden shifts to the plaintiff to rebut it.” Hathaway v. Bazany, 507 F.3d
312, 319 (5th Cir. 2007). “Qualified immunity shields federal and state officials
from money damages unless a plaintiff pleads facts showing (1) that the official
violated a statutory or constitutional right, and (2) that the right was ‘clearly
established’ at the time of the challenged conduct.” Ashcroft v. al-Kidd, 563
U.S. 731, 735 (2011). As we discussed above and as the district court correctly
recognized, Miles “fail[ed] to allege any specific facts indicating that Nelson
violated a clearly established right.”       Therefore, Miles has not abrogated
Nelson’s qualified immunity.
      Because Miles failed to state a claim against HATT or Nelson and
because Nelson is entitled to qualified immunity, the district court committed
no error in dismissing Miles’s cause of action. The judgment of the district
court is AFFIRMED.




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