United States District Court, D. New Hampshire
McCafferty United States District Judge.
order dated March 20, 2017, pro se plaintiff Sanjeev Lath was
given the opportunity to show cause why Counts 3(a)-(i) and
Counts 5-8 of his second amended complaint
(“SAC”) should not be dismissed for failing to
state a claim upon which relief can be granted. Lath has
responded to that order. For the reasons that follow, Counts
3(a)-(i), Counts 5-8, and Count 14 of the SAC are all
show cause order, the court gave Lath the option of
voluntarily dismissing any claims he no longer wished to
pursue, but also stated that to continue pursuing any claim
he did not give up, he would have to “(1) identify the
specific defendant or defendants; (2) specify the cause of
action . . .; (3) state the elements of that cause of action
. . .; and (4) allege facts that satisfy each element of the
cause of action.” Doc. no. 72, at 65. Lath has declined
to dismiss any of the claims that are covered by the show
cause order. In the balance of this order, the court
considers each of the claims that are subject to the show
cause order, and also considers the claim for civil
conspiracy asserted in Count 14 of the SAC.
3(a)-(i) assert claims for retaliation, in violation of 42
U.S.C. § 3617. In the show cause order, the court noted
“that ‘in connection with a . . . claim . . .
under Section 3617, there must be sufficient evidence for a
reasonable jury to conclude that the Defendants were
motivated by a protected characteristic in performing the
challenged conduct.'” Doc. no. 72, at 18 (quoting
S. Middlesex Opp. Council, Inc. v. Town of
Framingham, 752 F.Supp.2d 85, 95-96 (D. Mass.
2010)). The court continued:
[P]laintiff alleges that [Warren] Mills once called him a
“sand nigger.” But Plaintiff does not allege that
Mills engaged in any of the conduct underlying his
retaliation claim[s], and makes no allegations of animus on
the part of any of the defendants who did engage in the
conduct he calls retaliatory. Plaintiff's inadequate
allegations of animus would appear to be fatal to his
retaliation claims. . . . While the court harbors concerns
over the allegations of animus in the SAC, the better course
of action with respect to plaintiff's retaliation claims
under § 3617 . . . is to give him an opportunity to show
cause why those claims should not be dismissed for failing to
allege that “defendants' conduct was at least
partially motivated by intentional discrimination.”
S. Middlesex, 752 F.Supp.2d at 95.
Doc. no. 72, at 18-19 (emphasis in the original).
response, Lath says absolutely nothing about animus toward a
protected characteristic on the part of any of the defendants
who engaged in allegedly retaliatory conduct. Thus, he has
failed to show cause why Counts 3(a)-(i) should not be
arises from an alleged failure to comply with the American
National Standards for buildings and facilities
(“ANSI”), in violation of 42 U.S.C. §
3604(f)(2). In its show cause order, the court pointed out
that apart from mentioning ANSI in the heading of a claim,
the SAC said nothing about ANSI compliance. The court also
[P]laintiff does not allege that he has any physical
handicap, so it is difficult to see how, with respect to ANSI
compliance, he is “[a]n aggrieved person, ” 42
U.S.C. § 3613(a)(1)(A), entitled to bring a claim for an
alleged failure to comply with ANSI.
Doc. no. 72, at 23 n.10. In other words, the court
raised the issue of standing.
response to the show cause order, Lath fleshes out the claim