United States District Court, M.D. Tennessee, Nashville Division
WAVERLY D. CRENSHAW, JR. CHIEF UNITED STATES DISTRICT JUDGE.
the Court is a Report and Recommendation in which the
Magistrate Judge recommends that the Court grant
Defendant’s Motion to Dismiss (Doc. No. 84). Plaintiff
has filed objections. (Doc. No. 144, 156.) The Court has
conducted de novo of the Report and Recommendation.
For the following reasons, the Report and Recommendation will
be set aside, but the Motion to Dismiss will be granted.
initial review of the pro se Complaint, the Court
allowed Plaintiff’s Fair Housing Act
(“FHA”), 42 U.S.C. § 3613, claim against the
Metropolitan Development and Housing Agency
(“MDHA”) and its Executive Director, James
Harbison to proceed. (Doc. No. 7 at 7.) The Court dismissed
all other claims against those and the other defendants.
(Id. at 7-10.) Plaintiff then (1) untimely and
without leave of Court filed an Amended Complaint asserting a
state law cause of action for breach of contract (Doc. No.
35), and (2) untimely and without leave of Court filed an
“Amended Intervenor Complaint” that reasserted
previously a dismissed claim (Doc. No. 74).
filed a Rule 12(b)(6) motion to dismiss. The sole ground
asserted for dismissal is that Plaintiff’s FHA claim is
barred by the FHA’s statute of limitations.
(See Doc. No. 84 at 2-3.) For reasons that are
unclear, the Magistrate Judge did not address
Defendant’s statute of limitations argument in the
Report and Recommendation, instead performing a substantive
analysis of Plaintiff’s FHA claim. (See Doc.
No. 107.) However, when a Rule 12(b)(6) motion is made on a
statute of limitations ground, Hoover v. Langston Equip.
Assocs., Inc., 958 F.2d 742, 744 (6th Cir. 1992), the
Court must decide whether “it is apparent from the face
of the complaint that the limit for bringing the claim[s] has
passed.” Bishop v. Lucent Techs., Inc., 520
F.3d 516, 520 (6th Cir. 2008) (alteration in original);
Howell v. Farris, 655 Fed.App’x 349, 350 (6th
Cir. 2016) (“[I]t is clear that we must decide whether
it is apparent from the face of the complaint that the limit
for bringing the claim[s] has passed.”) (internal
quotation marks and citations omitted). If that is the case,
a plaintiff cannot “escape the statute [of limitations]
by saying nothing.” Id. (citing
Hoover, 958 F.2d at 745). A plaintiff must respond
by pleading additional facts in avoidance of the statute of
limitations or explaining why the statute of limitations
should be tolled. Id.; CapStar Bank v.
Perry, No. 3:17-cv-01221, 2018 WL 3389712, at *12 (M.D.
Tenn. July 12, 2018).
the FHA, an action must be brought within two years of
“the occurrence or the termination of an alleged
discriminatory housing practice.” 42 U.S.C. §
3613. Plaintiff admits that he was evicted on September 28,
2016, (see Doc. No. 87 at 1), and does not allege a
series of continuing violations beyond that time. Thus, the
alleged discrimination under the FHA “occurred”
or “terminated” no later than September 28, 2016
and Plaintiff’s action needed to be filed within two
years of that date. See, e.g., Havens Realty
Corp. v. Coleman, 455 U.S. 363, 381 (1982) (noting that
FHA “[s]tatutes of limitations . . . are intended to
keep stale claims out of the courts” and enforcing time
bar in the absence of allegations of continuing violations
into limitations period). Plaintiff’s action therefore
had to be filed by September 28, 2018. However, this action
was not filed until October 5, 2018. Watson’s FHA claim
filed a related lawsuit in 2016 that was dismissed without
prejudice in 2017. However, the Tennessee Savings Statute,
Tennessee Code Annotated § 28-1-105, does not operate to
preserve the timeliness of Plaintiff’s current FHA
claim, because an FHA claim is not subject to a state
limitations period. The FHA includes a limitations period
“written into the federal statute itself, ”
Primm v. Tenn. Dep’t of Corr., No.
3:19-cv-00690, 2019 WL 4038330, at *3 (M.D. Tenn. Aug. 27,
2019), and “[i]t is well established that state tolling
and saving provisions do not apply to limitations periods
established by Congress, ” id. (citing
Wade v. Knoxville Utilities Bd., 259 F.3d 452, 461
(6th Cir. 2001).
the Magistrate Judge did not address the statute of
limitations, the Court has scoured Plaintiffs’ filings
in response to the motion to dismiss for any attempt to
invoke an exception to this general rule. He appears to raise
only one: his disability. Plaintiff appears to seek equitable
tolling of the statute of limitation based upon
“multiple disabilities that substantially limit [him]
in multiple major life activities.” (Doc. No. 87 at 1.)
He says he is limited “compared to the average college
graduate or person, ” cannot “write or type,
” “get out of the bed easily, ” “sit
very long, ” or do “many other things including
to organize my documents or wording any better than I
have.” (Id. at 5.) Plaintiffs limitations go
much more to his ability to prosecute his case than
his ability to timely file it. Plaintiff knows how
to file cases – this is his ninth lawsuit in this
Court. He is an able litigant who in this case alone has made
around 100 filings, including multiple requests for
extensions. While the Court acknowledges that Plaintiff is
confronted with physical limitations, he has not demonstrated
how his diligence in filing suit was so hindered that he
would have been unable to file this action within two
years of being evicted. See., e.g.,
Bullington v. Bedford Cty., Tenn., 905 F.3d 467, 470
(6th Cir. 2018) (important factor is diligence in pursuing
one’s rights); Price v. Lewis, 119
Fed.App’x 725, 726 (6th Cir. 2005) (denying equitable
tolling where prisoner made filing 30 days late and had spent
60 days of limitations period in “lock-down”
Plaintiffs objections (Doc. Nos. 144, 156) are
OVERRULED. The Report and Recommendation
(Doc. No. 107) is SET ASIDE.
Defendant’s Motion to Dismiss (Doc. No. 84) is
GRANTED. All other pending motions are
denied. The Clerk ...