United States District Court, E.D. North Carolina, Western Division
MEMORANDUM AND RECOMMENDATION
E. Gates, United States Magistrate Judge.
case comes before the court on the motion (D.E. 16) by
defendant Summermill at Falls River Apartments, LLC
(“defendant”) to dismiss the complaint of pro se
plaintiff Shahnaz Poursaied (“plaintiff”) for
failure to state a claim upon which relief can be granted,
pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure. Plaintiff opposes the motion. It was referred
to the undersigned magistrate judge for issuance of a
memorandum and recommendation pursuant to 28 U.S.C. §
636(b)(1)(B) (see D.E. 22) and is ripe for
adjudication. For the reasons set forth below, it will be
recommended that defendant's motion to dismiss be allowed
in part and denied in part.
complaint (D.E. 1), filed 2 March 2017, plaintiff alleges as
December 2016, plaintiff moved into an apartment complex in
Raleigh, North Carolina owned by defendant. Compl. 2. From
the time plaintiff moved into her apartment, she encountered
a serious issue of noise in her apartment that sounded
primarily like a toilet flushing from her upstairs neighbor,
but at times included a water pump sound. Id. The
noise was so loud and so frequent that it was making the
apartment unbearable for plaintiff to live in. Id.
at 2-3. The noise caused plaintiff to suffer ear pain and
severe anxiety. Id. at 3. Plaintiff complained to
the landlord, and not only were her complaints not resolved,
but each complaint made the situation worse. Id.
Plaintiff also complained to the police about the noise, and
the police questioned why she was given a home so near to
sewage, but did not investigate further. Id.
addition, defendant shared information with plaintiff's
sister that it learned from plaintiff, apparently regarding
the purported noise problem. Id. Plaintiff did not
give defendant permission to share the information with her
sister, who was not then staying with
January 2017, plaintiff stopped in front of her mailbox to
check her mail. Id. at 4. It snowed that day and
defendant failed to clear the snow and ice, causing plaintiff
to slip and fall on her head. Id. The fall caused
plaintiff severe pain. Id. Again, she complained to
the police and the apartment manager. Id. On 12
January 2017, plaintiff visited the hospital emergency
department and was diagnosed with a concussion, chest
contusion,  and neck injury. Id. at 5. She
was advised to stay home on bedrest. Id. Plaintiff
informed the apartment manager of her injuries and was told
that defendant's insurance company would be notified.
Id. The insurance company requested plaintiff's
bill and claims, which plaintiff provided on 23 February
2017. Id. The hospital bill remains unpaid and, in
addition, plaintiff suffered lost wages and headaches arising
from the injury. Id. Plaintiff was forced to move
from the apartment, incur moving expenses, and give up her
puppy, which she had bought for $1, 000.00. Id. at
complaint, plaintiff asserts claims for (1) violation of N.C.
Gen. Stat. § 42-42(a), the North Carolina Residential
Rental Agreement Act (“RRAA”); (2) violation of
fair housing law; (3) violation of privacy law; and (4)
negligence. Id. at 2. She seeks damages in the
amount of $150, 000.00 for pain and suffering, medical
expenses, and other alleged losses. Id. at 4.
Defendant filed an answer denying the material allegations in
plaintiff's complaint and a counterclaim seeking $887.89
allegedly owed as a result of plaintiff's early
termination of her lease. Ans. and Am. Ctrclm. (D.E.
STANDARD OF REVIEW UNDER RULE 12(b)(6)
12(b)(6) of the Federal Rules of Civil Procedure provides for
dismissal of claims for “failure to state a claim upon
which relief can be granted.” Fed.R.Civ.P. 12(b)(6). A
motion to dismiss pursuant to Rule 12(b)(6) should be granted
only if “it appears certain that the plaintiff cannot
prove any set of facts in support of his claim entitling him
to relief.” Edwards v. City of Goldsboro, 178
F.3d 231, 244 (4th Cir. 1999). Ordinarily, the complaint need
contain simply “a short and plain statement of the
claim showing that the pleader is entitled to relief.”
Fed.R.Civ.P. 8(a)(2). However, a complaint is insufficient if
it offers merely “labels and conclusions, ”
“a formulaic recitation of the elements of a cause of
action, ” or “naked assertion[s]” devoid of
“further factual enhancement.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555, 557 (2007)
(internal quotation marks omitted)). “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.'”
Id. (quoting Twombly, 550 U.S. at 570). A
claim is facially plausible if the plaintiff alleges factual
content “that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged” and shows more than “a sheer possibility
that a defendant has acted unlawfully.” Id.;
SD3, LLC v. Black & Decker (U.S.) Inc., 801 F.3d
412, 425 (4th Cir. 2015) (“[I]t is not our task at the
motion-to-dismiss stage to determine ‘whether a lawful
alternative explanation appear[s] more likely' from the
facts of the complaint.” (quoting Houck v.
Substitute Tr. Servs., Inc., 791 F.3d 473, 484 (4th Cir.
2015))), cert. denied, 136 S.Ct. 2485 (2016).
analyzing a Rule 12(b)(6) motion, a court must accept as true
all well-pleaded allegations of the challenged complaint and
view those allegations in the light most favorable to the
plaintiff. Venkatraman v. REI Sys., Inc., 417 F.3d
418, 420 (4th Cir. 2005) (citing Mylan Labs., Inc. v.
Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993)); see
also Lambeth v. Bd. of Comm'rs, 407 F.3d 266, 268
(4th Cir. 2005) (court must accept as true all factual
allegations of the complaint). All reasonable factual
inferences from the allegations must be drawn in
plaintiff's favor. Edwards, 178 F.3d at 244.
However, bare assertions of legal conclusions or formulaic
recitations of the elements of a claim are not entitled to be
assumed true. Iqbal, 556 U.S. at 681. Complaints
filed by pro se plaintiffs are entitled to liberal
construction. Kerr v. Marshall Univ. Bd. of
Governors, 824 F.3d 62, 72 (4th Cir. 2016) (“We
are mindful of our obligation to liberally construe a pro se
complaint.”); Jehovah v. Clarke, 798 F.3d 169,
176 (4th Cir. 2015) (“We must construe pro se
complaints liberally . . . and [l]iberal construction of the
pleadings is particularly appropriate where, as here, there
is a pro se complaint raising civil rights issues.”
(citations omitted)); White v. White, 886 F.2d 721,
724 (4th Cir. 1989) (“Pro se complaints are to be read
liberally”). “Documents attached to the complaint
or motion may be considered if ‘they are integral to
the complaint and authentic.'” Ferebee v.
Dep't of Human Relations Comm., No. CV TDC-16-3803,
2018 WL 731682, at *2 (D. Md. 5 Feb. 2018) (quoting
Sec'y of State for Defence v. Trimble Navigation
Ltd., 484 F.3d 700, 705 (4th Cir. 2007))).
noted, plaintiff asserts claims for violation of the RRAA,
violation of fair housing law, violation of privacy law, and
negligence. By its motion, defendant seeks dismissal of all
of plaintiff's claims. The court will address each claim
in turn below.
RRAA, N.C. Gen. Stat. § 42-38 et seq., governs
certain obligations of landlords and tenants. Among other
things, the RRAA requires a landlord to:
(1) Comply with the current applicable building and housing
codes, whether enacted before or after October 1, 1977, to
the extent required by the operation of such codes; no new
requirement is imposed by this subdivision (a)(1) if a
structure is exempt from a current building code.
(2) Make all repairs and do whatever is necessary to put and
keep the premises in a fit ...