     Case: 15-20085   Document: 00513214912   Page: 1   Date Filed: 10/01/2015




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT


                               No. 15-20085
                             Summary Calendar
                                                               United States Court of Appeals
                                                                        Fifth Circuit

                                                                      FILED
                                                                October 1, 2015
ANTHONY HOOD; PRINCESS WILLIAMS,
                                                                 Lyle W. Cayce
                                                                      Clerk
             Plaintiffs–Appellants,

v.

TESSA POPE, Manager, Asset Plus Corporation; COURTNEY LAMBERT,
Assistant Manager, Asset Plus Corporation; KAREN HEFNER, Senior Vice-
President of Multi-Family Asset Plus Corporation; HOUSTON POLICE
OFFICER, a/k/a Jacob Turner - Onsite Courtesy Officer, Asset Plus
Corporation Badge 6715; FRED CALDWELL, Registered Agent, Director,
Owner and Manager of Asset Plus Corporation; HOUSTON POLICE
DEPARTMENT; JACOB TURNER; ASSET PLUS CORPORATION,

             Defendants–Appellees.




                Appeal from the United States District Court
                     for the Southern District of Texas
                          USDC No. 4:14-CV-1665
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                                      No. 15-20085
Before KING, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
       Anthony Hood and Princess Williams sued Asset Plus Corporation, four
Asset Plus employees, Jacob Turner, and the Houston Police Department on
various grounds that arose out of a protracted housing dispute, including
alleged violations of the Fair Housing Act. The district court dismissed all of
these claims. We affirm.
                                             I
       Anthony Hood and Princess Williams allege that in January 2012, they
called Lakeview Lofts, an apartment complex in Houston, Texas managed by
Asset Plus Corporation (Asset Plus), regarding the availability of an
apartment. According to the complaint, an Asset Plus representative told them
that an apartment with a particular floor plan was available for Hood and
Williams’s specified move-in date. After this conversation, Hood and Williams
immediately drove to the complex. Upon their arrival, they were greeted by
Stephanie Cantu, an Asset Plus employee who, “after seeing [Hood and
Williams] face to face . . . rudely denied the availability of the confirmed unit.”
Five days later, after Hood and Williams mentioned fair housing laws to
Cantu, she told them that the unit they had originally requested was available.
Hood and Williams signed an agreement to rent the unit eight days after the
initial phone call.
       Hood and Williams informed Asset Plus that they were planning to file
a Fair Housing Act (FHA) claim against the company. Upon moving into the
apartment unit they had requested, they realized that Asset Plus employees



       * 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. 15-20085
were living in surrounding units. In the following months, Hood and Williams
endured “the constant sounds of slammed doors, and beatings on walls and
metal,” disruptions which they claim were calculated to coerce them into
vacating the apartment and becoming “willing to sign” a release form
precluding them from bringing “any future lawsuits or fair housing claims”
against Asset Plus or its employees. Hood and Williams further allege that, in
the months that followed, Asset Plus and its employees repeatedly attempted
to extract additional money from them through various pretexts, such as
claiming that they owed an increased pet deposit and trying to convince them
to sign a new lease that would deny them a special move-in rate that they had
secured in their initial lease.
      In July 2012, Courtney Lambert, an Asset Plus employee, and Jacob
Turner, a Houston Police Department officer who also worked as a security
officer for Asset Plus when not on duty, served Hood and Williams with an
eviction notice due to unpaid rent, despite Hood and Williams’s protestation
that they had paid the rent on time. Several days later, Asset Plus e-mailed
another release form to Hood and Williams, requesting that they relinquish
the right to bring any claims for contract fraud, harassment, and all other
events that had occurred since they had moved into the Lakeview unit.
      In August 2012, Lambert, Turner, and Tessa Pope, another Asset Plus
employee, approached Hood and Williams. Hood and Williams accused the
Asset Plus employees of harassing them “because of their race.” After this
accusation was voiced, Turner “charged” at one of them and said, “[I]f you don’t
stop saying that I’m going to handcuff you and throw you in jail.” Hood and
Williams then attempted to file an administrative grievance against Turner
for pointing his gun at them during the same incident. Allegedly, Turner
subsequently entered Hood and Williams’s apartment without their knowledge
or consent and “left various vacate notices around the unit.”         Hood and
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                                 No. 15-20085
Williams vacated the premises “out of fear [for] their lives and continued
harassment.” The next day, Hood and Williams received an e-mail from Brian
Cweren, an attorney representing Asset Plus, who “demanded that the
plaintiffs sign a [non]disclosure agreement” providing that they would release
their claims against Asset Plus and Turner. Cweren threatened to “put an
eviction on their record that would make it very difficult to rent or own in the
future” if they failed to comply.    Several weeks later, Cweren and Pope
“followed through with their threats [by] swearing under oath to a judge that
the plaintiffs were still living in the unit and put an eviction on both their
records.” Owing in part to the eviction, Hood and Williams struggled to secure
new housing, and their credit score was adversely affected. Cweren allegedly
refused to allow Hood and Williams to pay their eviction debt so that they could
find housing and begin rebuilding their credit.
      Hood and Williams filed an FHA claim with the Department of Housing
and Urban Development, which referred the case to the Texas Workforce
Commission, Civil Rights Division (TWCCRD).                 TWCCRD issued a
“Determination of No Reasonable Cause” regarding Hood and Williams’s
claims of housing discrimination. Following TWCCRD’s denial of their claim,
Hood and Williams filed the instant suit in federal district court in June 2014.
They brought claims under various federal criminal statutes, the First
Amendment, the FHA, and Texas defamation law. In February 2015, the
district court dismissed the criminal law claims because Hood and Williams
lack authority to sue under criminal statutes; it dismissed the First
Amendment claim because Hood and Williams had not properly pled the claim
under 42 U.S.C. § 1983; it dismissed the defamation claim as barred by the
relevant statute of limitations; and it dismissed the FHA claims for failure to
state a claim upon which relief can be granted. On appeal, Hood and Williams
argue only the First Amendment and FHA claims.
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                                     No. 15-20085
                                            II
       We review a district court’s dismissal under Federal Rule of Civil
Procedure 12(b)(6) de novo, “accepting all well-pleaded facts as true and
viewing those facts in the light most favorable to the plaintiffs.” 1 To state a
claim under the FHA, plaintiffs must allege facts that make it plausible, rather
than merely conceivable, that the defendants’ conduct fell within the terms of
the statute. 2 The allegations must amount to more than a “formulaic recitation
of the elements” of a discrimination claim; 3 a complaint that pleads facts that
are “merely consistent with” a defendant’s liability is insufficient. 4
       It is unlawful under 42 U.S.C. § 3604(a) to “refuse to sell or rent after
the making of a bona fide offer, or to refuse to negotiate for the sale or rental
of, or otherwise make unavailable or deny, a dwelling to any person because of
race . . . .” It is unlawful under 42 U.S.C. § 3604(b) to “discriminate against
any person in the terms, conditions, or privileges of sale or rental of a dwelling,
or in the provision of services or facilities in connection therewith, because of
race . . . .” Among the conduct to which § 3604(b) applies are threats to evict
and actual or constructive eviction. 5 It is unlawful under 42 U.S.C. § 3604(d)
to “represent to any person because of race . . . that any dwelling is not
available for inspection, sale, or rental when such dwelling is in fact so
available.” To prove that an action was discriminatory under § 3604, a plaintiff
must establish (1) that defendant’s stated reason for its decision was




       1 Brand Coupon Network, L.L.C. v. Catalina Mktg. Corp., 748 F.3d 631, 634 (5th Cir.
2014) (quoting Morris v. Livingston, 739 F.3d 740, 745 (5th Cir. 2014)).
       2 See Ashcroft v. Iqbal, 556 U.S. 662, 683 (2009).
       3 Id. at 681 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
       4 Id. at 678 (quoting Twombly, 550 U.S. at 557).
       5 Woods-Drake v. Lundy, 667 F.2d 1198, 1201 (5th Cir. 1982); see also Cox v. City of

Dallas, 430 F.3d 734, 746 (5th Cir. 2005).
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                                      No. 15-20085
pretextual, and (2) a reasonable inference that race was a significant factor in
the refusal. 6
                                             A
       Hood and Williams assert claims for discriminatory treatment in the
negotiation of their lease, despite conceding that they rented the unit they
requested under terms no different from those offered to other tenants. The
district court concluded that because Hood and Williams signed a lease for the
apartment that they requested eight days after being denied the apartment
during their first face-to-face meeting with an Asset Plus representative, they
failed to state a claim under 42 U.S.C. § 3604(a) or (b). Hood and Williams
acknowledge that Asset Plus called them and offered them a unit five days
after their initial meeting. However, they contend that this swift reversal was
insufficient to cure the violation of § 3604 that had already been committed
because § 3604 “is only concerned with the original denial of a rental.” The
district court appears to have considered whether Hood and Williams stated a
claim under § 3604(c), rather than (d), because Hood and Williams’s complaint
reproduced the text of § 3604(d) but cited it as (c). We consider whether
§ 3604(a), (b), or (d) was violated. 7
       Although it is not necessarily the case that “a current owner has no claim
for attempted and unsuccessful discrimination relating to the initial sale or
rental of the house,” 8 Hood and Williams’s claims fail because they have not
alleged sufficient facts to suggest that the in-person refusal by Cantu or any of
the subsequent actions taken by Asset Plus were on account of their race. The
only allegation potentially indicative of Cantu’s discriminatory behavior is that


       6 Artisan/Am. Corp. v. City of Alvin, 588 F.3d 291, 295 (5th Cir. 2009).
       7 See Erickson v. Pardus, 551 U.S. 89, 94 (“[A] pro se complaint, however inartfully
pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.”
(quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)).
       8 Cox, 430 F.3d at 742.

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                                       No. 15-20085
they were told over the phone by an Asset Plus representative that a specific
floor plan was available, but Cantu told them in person shortly thereafter that
it was not. It is conceivable that this discrepancy was due to their race, but
there are also many unrelated explanations that are just as conceivable, if not
more so: oversight by the Asset Plus employee they spoke with by phone;
miscommunication over the phone about their desired floor plan; deliberate
deception by Asset Plus to lure them to the apartment complex only to lease
them something other than what they requested; or a dispute that arose during
the in-person meeting for reasons unrelated to race. Importantly, unlike in
cases where claims are properly stated under § 3604, Hood and Williams have
alleged nothing that isolates race as a factor in Cantu’s motivations. 9                 Even
the most generous view of Hood and Williams’s claim is that they were denied
the apartment because of something that occurred during the in-person
meeting. For a court to assume any more would be to assume the truth of Hood
and Williams’s legal causation assertions, which is forbidden even under the
liberal standards courts use to evaluate motions to dismiss. 10
       Hood and Williams also state, without citation or additional support,
that the racial make-up of the apartment complex was less than twenty
percent African-American, which is “a disproportionate number” in light of the
“average monthly rental cost and the racial demographics of the area.” Even
if this is true, it does little to suggest that the in-person denial was racially
motivated. Nor do Hood and Williams explain why or to what extent this figure




       9  See, e.g., Havens Realty Corp. v. Coleman, 455 U.S. 363, 368 (1982) (recognizing
disparate treatment when two black and two white prospective renters made multiple
separate inquiries at the same property on different days); Lincoln v. Case, 340 F.3d 283, 286
(5th Cir. 2003) (concluding that the evidence confirmed plaintiff’s suspicion that his initial
denial was based on race when two black and two white “testers” made separate inquiries).
        10 See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“Threadbare recitals of the elements

of a cause of action, supported by mere conclusory statements, do not suffice.”).
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                                 No. 15-20085
is disproportionate, and in any case it indicates that there is an African-
American presence in the complex. Hood and Williams also point to Turner’s
anger when they said to him, seven months after they signed the lease, that
they believed they were being harassed because of their race. But that incident
was unrelated to the initial denial and does not indicate that any subsequent
harassment by Asset Plus was discriminatory. Turner’s emotions are not
probative of the past motivations of other employees, nor, in this case, his own,
since umbrage at an accusation of unlawful discriminatory behavior might
equally be expected both from people who discriminate and from people who
do not.
      Hood and Williams have failed to establish a plausible basis for a
contention that any defendant’s behavior was discriminatory, and the district
court properly dismissed all of their claims brought under § 3604.
                                       B
      Hood and Williams argue that Asset Plus’s offer to them of the unit they
requested, as well as harassment that occurred after they moved in, violated
their rights under 42 U.S.C. § 3617, which makes it unlawful “to coerce,
intimidate, threaten, or interfere with any person in the exercise or enjoyment
of, or on account of his having exercised or enjoyed . . . any right granted or
protected by section . . . 3604 . . . of this title.” But Hood and Williams
voluntarily rented the apartment and have not suggested that they did so due
to any kind of threatening or intimidating behavior by Asset Plus. Asset Plus’s
willingness to lease the apartment to Hood and Williams did not violate § 3617.
Any subsequent harassment by any of the defendants did not violate § 3617,
because as explained above, Hood and Williams have not stated a claim that
they at any point exercised or enjoyed any right granted under § 3604. Even
if they had stated a claim under § 3604, Hood and Williams have not alleged
facts, beyond conclusory assertions, that suggest that the harassment they
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                                       No. 15-20085
endured was connected to their attempts to exercise their rights under the
FHA.         The behavior they do allege, though potentially unlawful for other
reasons, would not violate § 3617.
                                              C
        Hood and Williams argue that the TWCCRD report should not have been
considered in a ruling on the motion to dismiss their FHA claims. Although
they are correct that courts must generally limit themselves to the pleadings
in ruling on a motion to dismiss, courts may also consider documents attached
to the motion to dismiss that are “central to the claim and referenced by the
complaint.” Here, Hood and Williams’s complaint referenced their HUD fair
housing claim, which was later referred to TWCCRD and gave rise to the
report.       In any case, the contents of the report are not necessary to our
conclusion that Hood and Williams have not stated a claim under §§ 3604 and
3617.
                                             III
        Hood and Williams’s First Amendment claim was improperly pleaded in
their original complaint, and although the district court gave them leave to
amend their complaint so as properly to allege a violation of 42 U.S.C. § 1983, 11
they failed to do so. Accordingly, the issue is raised for the first time on appeal,
and “[a]rguments not raised in the district court cannot be asserted for the first
time on appeal.” 12
                                             IV
        Hood and Williams’s contention that the district court exhibited bias
against them and abused its discretion in staying discovery are without merit.
The purpose of a motion to dismiss is to evaluate the strength of a plaintiff’s


        11See Johnson v. City of Shelby, 135 S. Ct. 346, 347 (2014) (“[P]etitioners, on remand,
should be accorded an opportunity to add to their complaint a citation to § 1983.”).
       12 Greenberg v. Crossroads Sys., Inc., 364 F.3d 657, 669 (5th Cir. 2004).

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                                        No. 15-20085
claim based on the allegations in the pleadings, and a stay of discovery to do
so is not unreasonable. 13 Hood and Williams do not otherwise reference any
facts that suggest bias.
                                       *       *        *
      For the foregoing reasons, we AFFIRM the judgment of the district court.




      13   Ferrer v. Chevron Corp., 484 F.3d 776, 782 (5th Cir. 2007).
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