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Kris v. Dusseault Family Revocable Trust

United States District Court, D. New Hampshire

August 6, 2018

Margaret Kris
v.
Dusseault Family Revocable Trust et al.[1]

          Margaret Kris, pro se.

          REPORT AND RECOMMENDATION

          Andrea K. Johnstone United States Magistrate Judge.

         Before the court is plaintiff Margaret Kris's complaint (Doc. No. 1); two motions seeking preliminary injunctive relief (Doc. Nos. 2, 4); and a notice/motion (Doc. No. 5) regarding her contacts with the U.S. Department of Housing and Urban Development (“HUD”). This case arises out of an eviction proceeding Kris contends was undertaken in retaliation for her complaints to the local public housing authority. The defendants to this action are Charlene Dusseault, Frances Dusseault, and the Dusseault Family Revocable Trust (“Dusseault Trust”) (the landlord that evicted her); the Dusseault Trust's counsel, Attorney Sean Curran; and HUD. The complaint and the factual assertions in Document Nos. 2, 4, and 5 are here for preliminary review under LR 4.3(d)(2) and 28 U.S.C. § 1915(e)(2). Kris's motions for preliminary injunctive relief have been referred to the magistrate judge for a report and recommendation, pursuant to 28 U.S.C. § 636(b)(1)(B). See June 21, 2018 Order; July 13, 2018 Order.

         Background

         Kris, who has a hearing impairment and other disabilities, was a tenant in an apartment with a driveway parking space, in Manchester, New Hampshire. The apartment was owned by Frances Dusseault and/or the Dusseault Trust. Kris's rent was subsidized by the Manchester Housing and Redevelopment Authority (“MHRA”) under the HUD Section 8 program.[2] Kris's lease started on September 15, 2017. Kris was evicted in July 2018.

         Kris asserts that the building had a bedbug issue that the landlord did not disclose before Kris moved in. On October 5, 2017, Kris reported to the MHRA that her building needed extermination, and she noted that she had a breathing problem (COPD) and a “support animal” that could be harmed by chemical exposure. Oct. 5, 2017 MHRA Request for Reasonable Accommodation (Doc. No. 1-1, at 38).

         In a letter addressed to MHRA agent Deb Butterworth, dated December 11, 2017, Kris complained about maintenance issues in her apartment, the behavior of other tenants, and ice in the driveway. See Dec. 11, 2017 Ltr. to Deb Butterworth, MHRA (Doc. No. 1-1, at 39). A winter parking notice signed by Frances Dusseault on December 16, 2017, notified tenants that they needed to remove their cars from the driveway when it snowed more than three inches, to allow for snowplowing. See Doc. No. 1-1, at 44. In a January 4, 2018 letter to the MHRA, Kris complained that the snowplow honking its horn in the driveway did not give her adequate notice of the need to move her car, as she is deaf in one ear. See Jan. 4, 2017 Ltr. to Deb Butterworth, MHRA (Doc. No. 1-1, at 45).

         Kris has further alleged that on an unspecified date in January 2018, Frances Dusseault and Charlene Dusseault came to Kris's apartment to “admonish” Kris for reporting them to the MHRA. Doc. No. 1-2, at 35. Kris asserts that Charlene and Frances “verbally assaulted” her, and that Frances grabbed Kris's arm and pushed it out of the away, using her fingernails, as Kris approached her carrying a cup to the sink. Doc. No. 1-2, at 33-34; Doc. No. 1-1, at 31; Doc. No. 1-2, at 18. Kris then asked Frances and Charlene to leave, and reported the incident to the police as an assault. See Doc. No. 1-2, at 34. Kris asserts that she did not receive any response to any of her complaints to the landlord reporting maintenance issues, after that incident. See Doc. No. 1-2, at 33; Doc. No. 1-1, at 31.

         Kris withheld rent in February/March 2018. See Doc. No. 1-1, at 40; Doc. No. 1-1, at 18. On March 2, 2018, Attorney Sean Curran, on behalf of the Dusseault Trust, filed a state court proceeding to evict Kris, see Dusseault Family Rev. Tr. of 2017 v. Kris, No. 456-2018-LT-00234 (9th Cir. Dist. Div., Manchester, filed Mar. 2, 2018). Kris obtained money orders for unpaid rent, which she brought with her to the March 23, 2018 hearing in that case. See Doc. No. 1-1, at 18. Those money orders were not accepted, and the Manchester District Court issued a judgment for the landlord on that date.

         Kris filed a notice of appeal of the Manchester District Court judgment in the New Hampshire Supreme Court (“NHSC”). See Doc. No. 4, at 8-9. The NHSC declined to accept that appeal on June 13, 2018, see Dusseault Family Rev. Tr. of 2017 v. Kris, No. 2018-0215 (N.H. June 13, 2018) (Doc. No. 1-1, at 4), and the Manchester District Court issued a writ of possession to the landlord on July 2, 2018.

         The record includes a notice, dated April 13, 2018, addressed to Kris at a prior address, stating that Kris was no longer eligible for receipt of electrical assistance payments, administered under the New Hampshire Electric Assistance Program, effective April 1, 2018. See Doc. No. 1-2, at 3. Kris asserts that in discussions preceding her signing the lease, Joanne had told Kris that Frances Dusseault would receive and retain Kris's electrical assistance payments. See Ltr. to Bonnie, MHRA Housing Supervisor, May 14, 2018 (Doc. No. 1-1, at 22).

         On March 30, 2018, Kris sent a Fair Housing Act (“FHA”) complaint to HUD. See Doc. No. 1-1, at 1, 17. Kris checked boxes on that form indicating that she believed she had been discriminated against on multiple bases, including having a handicap or disability. See id. Kris asserts here that Robert D. Forti, HUD Intake Branch Chief, responded to that complaint by sending a letter to Kris in July 2018 asking her to provide additional documentation. See Doc. No. 5, at 1.

         Kris filed this action on June 20, 2018, along with her first motion for a preliminary injunction. See Doc. Nos. 1, 2. Kris claims that HUD and the state courts failed to enforce laws prohibiting disability discrimination, and that judges in the state proceedings were biased. Kris also asks this court to enjoin the eviction, to compel HUD to respond to her complaint, and to compel HUD to represent her in the eviction proceeding and to pursue an enforcement action against the Dusseaults.

         Kris filed a second motion for preliminary injunctive relief in this case on July 13, 2018. See Doc. No. 4. In that motion, she asserts that she went to the apartment on July 11, 2018, and found it marked with a sheriff's sticker. Kris entered the apartment to retrieve her belongings. Kris asserts that six Manchester Police Department officers arrived on the scene, threw her against a porch railing, and handcuffed her. Kris further asserts that MPD officers did not allow her to receive medical attention at that time. See Doc. No. 5. Kris was charged with resisting arrest, criminal trespass, and disturbing the peace. See Doc. No. 4.

         Kris further asserts that she was sent to the Hillsborough County Department of Corrections (“HCDOC”) on July 11, and that after her arrival, while changing her clothes at the direction of a corrections officer (“C.O.”), Kris was falsely accused of attempting to assault a C.O. HCDOC officers then pepper-sprayed Kris and slammed her head against the floor. Doc. No. 4, at 4-5. A C.O. stepped on her bare foot, breaking her toe. Id. at 5. She asserts that a contusion on her elbow resulting from the arrest was aggravated by the HCDOC assault. Id. Kris asserts she was released the next day without adequate removal of the pepper spray. Id. She alleges that while at the HCDOC she asked for a grievance form and a Bible, which she did not receive. See id.

         Kris asserts that her bail conditions require her to stay away from the apartment, see Doc. No. 4, at 5, and that she is temporarily living with her son. See Doc. No. 4, at 3, 5. Kris also asserts that she has filed a motion in the Manchester District Court asking for assistance in recovering her security deposit. See Doc. No. 4, at 1, 7.

         Claims

         Kris asserts the following claims in Doc. Nos. 1, 2, 4 & 5:

         1. Failing to execute duties under the Fair Housing Act (“FHA”), 42 U.S.C. § 3610(g):

a. HUD has not completed its investigation of Kris's March 30, 2018 FHA complaint; and
b. HUD failed to represent Kris in the eviction proceedings and failed to take action against the landlord.

         2. Frances Dusseault, the Dusseault Family Revocable Trust, and Attorney Sean Curran violated Kris's rights under the Americans with Disabilities Act (“ADA”) and the FHA, in that:

a. Kris did not receive notice of the building's bedbug infestation, despite Kris's breathing problems and “support animal” that could be affected by chemical exposure;
b. The landlord did not take steps to provide Kris with adequate notice to move her car to avoid having it plowed in, to accommodate Kris's hearing impairment;
c. In negotiations preceding Kris's signing of the lease, Frances Dusseault's daughter Joanne said that Frances would take care of Kris's electrical assistance payments, although Kris's eligibility for such payments was allowed to lapse, in retaliation for Kris's action in contacting the MHRA;
d. After receiving notice that Kris had contacted the MHRA to complain about the apartment and to request assistance in resolving issues relating to Kris's disabilities, in retaliation for Kris's action in contacting the MHRA:
i. Charlene and Frances Dusseault appeared at Kris's apartment, “verbally assaulted” Kris, and Frances pushed ...

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