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Jail Not a Dwelling Under Federal Housing Act

A federal district court in New Mexico ruled that a city jail is not a dwelling for purposes of the Fair Housing Act (FHA) and granted defendants' motion for dismissal of plaintiff's claim of sexual discrimination in the provision of housing.

In June 1998, plaintiff Soma Garcia was confined in the Hobbs (New Mexico) City Jail. Defendant Jorgé Condarco approached her, fondled her, took her to the laundry room and forced her to perform oral sex. Condarco subsequently pled guilty to criminal sexual penetration of Garcia.

In February 2000, Garcia filed a complaint in federal court alleging civil rights violations where, in Count III, she claimed that defendants, in violation of the FHA, discriminated against her on the basis of sex. The question before the court was whether the city jail constituted a residence or dwelling as defined by the FHA.

The FHA, 42 U.S.C. § 3601 et seq. provides that it is unlawful to discriminate against, any person in the provision of a dwelling because of sex. The FHA describes a dwelling as any building which is occupied or designed for occupancy as a residence.

On the surface, said the court, the superficial similarities between the jail and other structures found to be dwellings caused disagreement over the dwelling status of a jail. The features in common between the jail and dwellings within the meaning of the FHA should not, however, obscure the glaring differences between them, said the court. The Hobb's City Jail was not designed nor intended as a residence for detainees; rather, it was designed and intended to be a penal facility. Thus, the primary purpose of the FHA has no application to the prison context.

For these reasons, the court concluded that the Hobbs City Jail, was not a, dwelling within the meaning of the FHA and defendants' motion to dismiss Count III of plaintiff's complaint was granted. See: Garcia v Condarco , 114 F.Supp.2d. 1158 (D NM 2000).

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Related legal case

Garcia v. Condarco

SONDRA GARCIA, Plaintiff, v. JORGE L. CONDARCO and BRENDA SMITH, in their individual capacities, and THE CITY OF HOBBS, Defendants.

No. CIV 00-238 BB/LFG-ACE


114 F. Supp. 2d 1158; 2000 U.S. Dist. LEXIS 14383

September 25, 2000, Decided

September 26, 2000, Filed

DISPOSITION: [**1] Defendants' Motion to Dismiss Count III of Plaintiff's Complaint GRANTED.

COUNSEL: For Plaintiff: Paul J. Kennedy, Mary Y.C. Han, Albuquerque, NM.

For Plaintiff: Bill J. Helwig, Denver City, TX.

For Defendant: Gregory L. Biehler, Albuquerque, NM.

JUDGES: BRUCE D. BLACK, United States District Judge.




THIS MATTER is before the Court on Defendants' Motion to Dismiss Count III of Plaintiff's Complaint, filed June 23, 2000 (Doc. 24). The Court has reviewed the motion, the memoranda submitted by the parties, and the relevant authorities, and finds Defendants' argument is well taken and, therefore, GRANTS Defendants' motion to dismiss Count III.


In her Complaint, Plaintiff alleges that on or about June 6, 1998, while detained at the Hobbs City Jail, Defendant Condarco [*1159] approached her and, after talking with her for a short while, began to "rub her back, shoulders, and hair, to kiss her, and to fondle her breasts." Doc. 1 at 2. Plaintiff then alleges Defendant Condarco took her to the laundry room and forced her to perform oral sex on him. Id. at 3. Defendant Condarco subsequently pled guilty [**2] to criminal sexual penetration of Plaintiff. Id.

On February 16, 2000, Plaintiff filed a Complaint in federal court alleging civil rights and tort violations (Doc. 1). In Count III of the Complaint, Plaintiff alleges all three Defendants discriminated against her on the basis of sex in the provision of services or facilities in connection with housing, in violation of the Fair Housing Act ("FHA"), 42 U.S.C. § 3601 et seq. In the motion currently before the Court, Defendants argue the Hobbs City Jail is not a "dwelling" as defined in the FHA and therefore Plaintiff's FHA count should be dismissed for failure to state a claim.


A. Legal Standard

Under Federal Rule of Civil Procedure 12(b)(6), dismissal is appropriate when, "accepting the well-pleaded allegations of the complaint as true and construing them in the light most favorable to the plaintiff," it appears "the plaintiff can prove no set of facts in support of the claims that would entitle him to relief." Yoder v. Honeywell, Inc., 104 F.3d 1215, 1224 (10th Cir. 1997). The Court evaluates Defendants' motion to dismiss Count III under this standard. [**3]

B. Analysis

The courts have generally recognized that whether a jail or prison is considered a residence or dwelling depends upon the context. For example, in Sioux Falls Cable Television v. State of South Dakota, 838 F.2d 249 (8th Cir. 1988), the Court considered the purpose of the Cable Communications Policy Act, 47 U.S.C. § 605, to determine whether the State should be enjoined from intercepting satellite signals and "retransmitting" them to prison cells. The Court of Appeals agreed with the district court "that the private viewing exception must be given a practical and common sense interpretation" and concluded that for purposes of the private use "exception" to the Act, each individual's cell was a "private dwelling unit." 838 F.2d at 255. In People v. Nichols, 920 P.2d 901 (Colo. Ct. App. 1996), the Court held for purposes of a burglary statute a jail "cell qualifies as a dwelling." See also People v. McDade, 230 Cal. App. 3d 118, 280 Cal. Rptr. 912 (Cal. Ct. App. 1991); Bousman v. State, 167 Ind. App. 386, 338 N.E.2d 723 (Ind. Ct. App. 1975). For purposes of service [**4] of process, however, the courts have distinguished a jail from a residence. See State v. Montgomery, 257 La. 461, 242 So. 2d 818, 820 (La. 1970); Leidy v. Edwards, 24 N.J. Misc. 116, 46 A.2d 723 (N.J. Dist. Ct. 1946). Initially, then, the Court must consider the definition of dwelling within the context and purpose of the FHA.

The FHA provides that it is unlawful "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, color, religion, sex, familial status, or national origin." 42 § U.S.C. 3604(b). Further, the FHA defines dwelling as:

any building, structure, or portion thereof which is occupied as, or designed or intended for occupancy as, a residence by one or more families, and any vacant land which is offered for sale or lease for the construction or location thereon of any such building, structure, or portion thereof.

42 § U.S.C. 3602(b) (emphasis added). The question before the Court is: Considering the purpose of the FHA and the definitional language, does the Hobbs City Jail [**5] constitute a "dwelling"?

In general, the courts have given the FHA a generous construction in order to "effectuate its broad and inclusive language." Woods, 884 F. Supp. 1169 at 1173. This generous construction is apparent in [*1160] the range of structures that courts have found to be "dwellings" within the meaning of the FHA: trailers for migrant workers n1, unit in time-share resort n2, nursing home for handicapped elderly people n3, residential facility for homeless families, n4 residential school for emotionally disturbed adolescents, n5 summer bungalows run by a country club, n6 an AIDS hospice, n7 cooperative apartment complexes, n8 and a children's home. n9

n1 Lauer Farms, Inc. v. Waushara County Bd. of Adjustment, 986 F. Supp. 544, 559 (E.D. Wis. 1997). Lauer cites to many of the cases listed. Id. at 549. See also, Hernandez v. Ever Fresh Co., 923 F. Supp. 1305, 1307-08 (D. Or. 1996) (temporary housing for migrant farm laborers constitutes "dwelling" under FHA); Villegas v. Sandy Farms, Inc., 929F. Supp. 1324, 1327-28 (D. Or. 1996) (farmer's cabins used by migrant workers are "dwellings" within the meaning of the FHA). [**6]

n2 Louisiana Acorn Fair Housing v. Quarter House, 952 F. Supp. 352, 359-60 (E.D. La. 1997).

n3 Hovsons, Inc. v. Township of Brick, 89 F.3d 1096, 1102 (3d Cir. 1996).

n4 Woods v. Foster, 884 F. Supp. 1169, 1173 (N.D. Ill. 1995). See also, Turning Point, Inc. v. City of Caldwell, 74 F.3d 941 (9th Cir. 1996) (homeless shelter is a "dwelling" under FHA).

n5 United States v. Massachusetts Indus. Fin. Agency, 910 F. Supp. 21, 26 n. 2 (D. Mass.1996).

n6 United States v. Columbus Country Club, 915 F.2d 877, 881 (3d Cir. 1990).

n7 Baxter v. City of Belleville, 720 F. Supp. 720, 731 (S.D. Ill. 1989).

n8 Robinson v. 12 Lofts Realty, Inc., 610 F.2d 1032 (2d Cir. 1979).

n9 United States v. Hughes Memorial Home, 396 F. Supp. 544, 549 (W.D. Va. 1975).

On the surface, the Hobbs City Jail shares a number of features in common with structures that have been considered dwellings under the FHA. At first glance, then, the Hobbs [**7] City Jail might appear to fall within the meaning of "dwelling" under the FHA. One test created to define "dwelling" under the FHA focuses on whether the occupant has the intent to return or is making just a transient visit. This test, however, does not illuminate the status of the Hobbs Jail since Plaintiff neither intends to return n10 -- her stay in the jail is an involuntary confinement -- nor is her stay at the jail a transient visit -- she faces detention up to one year. The cases finding specific structures "dwellings" within the meaning of the FHA are, however, linked by a more applicable common, albeit sometimes implicit, feature -- they are primarily "designed or intended for occupancy, as a residence." Therefore, the features in common between the Hobbs City Jail and structures found to be "dwellings" within the meaning of the FHA should not obscure the glaring difference between them: The Hobbs City Jail is designed as a detention facility not a "residence." It is this difference that proves critical within the overall purpose of the FHA.

n10 Although the cases always refer to an intent to return, the Court notes that with respect to some structures falling within the meaning of "dwelling" under the FHA, i.e., nursing home, AIDS hospice, and children's home, it is more appropriate to speak of an intent to remain, rather than an intent to return. For simplicity, the Court uses the phrase "intent to return" to cover both.


In many FHA cases, the court expressly identifies the structure in question as a residence or home. In Woods, for example, the court rejected the defendant's argument that plaintiff had no intent to return to the homeless shelter, finding "because the people who live in the Shelter have nowhere else to 'return to,' the Shelter is their residence in the sense that they live there and not in any other place." 884 F. Supp. at 1174. n11 In Villegas, for example, the court considered whether cabins for migrant workers fell within the meaning of "dwelling" under [*1161] the FHA. The court found that the cabins were clearly within the broad purpose of the Act to eliminate discrimination in housing, and concluded that the nature of the workers' occupancy resembled that of a resident and that "like the occupants of a homeless shelter, during the farmworkers' employment by defendant, the cabins are their homes." 929 F. Supp. at 1328. In Baxter, the court, contemplating the "dwelling" status of an AIDS Hospice, found since the plaintiff "indicated that the facility is to be a home for HIV victims in need of a place to live ..., thus, the premises may be considered [**9] a dwelling." 720 F. Supp. at 730.

n11 This is supported by the court's later explanation that plaintiffs "have no other place to 'return to' or reside ...." 884 F. Supp. at 1174. The court specifically equates a place that one intends to return with a place one resides.

Similarly in Columbus, 915 F.2d at 881, the court found summer homes n12 to be "dwellings" within the meaning of the FHA, and in Hughes, the court found the children's facility was a residence: "the record establishes that, as the very title of the institution implies, the Home is far more than a place of temporary sojourn to the children who live there, and that they are in fact, as the Home's officials refer to them, residents." 396 F. Supp. at 549. Additionally, in Hovsons, the court determined a nursing home for the elderly fell within the meaning of "dwelling" under the FHA. The court concluded, "to the handicapped elderly persons who would reside there, Holiday Village would [**10] be their home, very often for the rest of their lives." 89 F.3d at 1096.

n12 The court explained that the summer homes are "bungalows." 915 F.2d at 878.

Given the superficial similarities between the Hobbs City Jail and other structures found to be "dwellings" under the FHA, and the generally generous construction of the FHA, it is not surprising that there is argument over the "dwelling" status of a jail. n13 Nonetheless, it is clear to the Court from interpreting the "residence" language of the FHA that there is fundamentally a distinction between a home on the one hand, and a detention facility on the other. n14 The Hobbs City Jail is not designed or intended as a "residence" for detainees; rather, it is designed and intended to be a penal facility.

n13 This confusion is not only predictable, but probably exacerbated by common expressions such as references to jails "housing people."

n14 Again, this Court agrees with the finding in Gold that "using its ordinary meaning and common sense a detention center is not a home." Slip op. at 6.


Essential to the distinction between a home and a detention facility is purpose. The Uniform Residential Landlord and Tenant Act ("Uniform Act") is analogous to the FHA in that it is designed to prevent unfair housing practices. See Uniform Act, § § 1.302 and 1.303. It is significant therefore that the draftsmen made it clear that the Uniform Act "is not intended to apply where residence is incidental to another primary purpose such as residence in a prison ...." Comment, Uniform Act, § 1.202. See also Ohio Stat. Ann. 5c RC 5321.01 excluding "prisons, jails, workhouses and other places of incarceration or correction" from the definition of "residential premises" under the Ohio Landlord Tenant Act.

A jail is not, as the FHA requires, "designed or intended for occupancy as a residence." Rather, the primary purpose of a jail is to provide just punishment, adequate deterrence, protection of the public, and correctional treatment. See 18 U.S.C. § 3553; see also William E. Adams, The Incarceration of Older Criminals: Balancing Safety, Cost, and Humanitarian Concerns, 19 Nova L. Rev. 465, 476 (1995).

The policy of the FHA is to provide [**12] "for fair housing throughout the United States." 42 U.S.C. § 3601. See also Nationwide Mut. Ins. Co. v. Cisneros, 52 F.3d 1351 (6th Cir.), cert. denied, 516 U.S. 1140, 133 L. Ed. 2d 893, 116 S. Ct. 973 (1996); Williams v. Matthews Co., 499 F.2d 819 (8th Cir.), cert. denied, 419 U.S. 1021, 42 L. Ed. 2d 294, 95 S. Ct. 495 (1974); Smith v. Woodhollow Apartments, 463 F. Supp. 16 (W.D. Okla. 1978); Metropolitan Housing Dev. Corp. v. Village of Arlington Heights, [*1162] 469 F. Supp. 836 (congressional intent to use all available means to prevent housing discrimination in the suburbs), aff'd, 616 F.2d 1006 (7th Cir. 1980). Senator Mondale outlined the scope of the legislation saying "all that legislation such as this would do would be to eliminate the discriminatory business practices which might prevent a person economically able to do so from purchasing a home regardless of his race." 114 Cong. Rec. 2272, 2275 (1968). Beyond the integration of residential housing patterns, Congress also "intended to promote freedom of choice in housing ... [The FHA] [**13] 'removes the opportunity to insult and discriminate against a fellow American because of his color' ... and gives blacks freedom to move where they will." Burney v. Housing Auth. of County of Beaver, 551 F. Supp. 746, 769 (W.D. Pa. 1982) (citing 114 Cong. Rec. 5643). The element of freedom of choice is, then, paramount.

Thus, the primary purpose of the FHA has no application in the prison context. Cf. Williams v. Meese, 926 F.2d 994, 997 (10th Cir. 1991) (Title VII and ADEA do not apply because the primary purpose of prison is incarceration, not employment); McMaster v. State of Minn., 30 F.3d 976, 980 (8th Cir. 1994) (primary purpose of the Fair Labor Standards Act has no application in the prison context); Hale v. State of Ariz., 993 F.2d 1387 (9th Cir. 1993) (same), To the contrary, jails and prisons are designed to strictly regulate where and how prisoners may live. Congress adopted the Civil Rights of Institutionalized Persons Act, 42 U.S.C. § 1997, not the FHA, to protect the civil rights of prisoners. The former is specifically intended to protect persons housed in state jails and [**14] prisons "insofar as such persons are subjected to conditions which deprive them of rights, privileges or immunities secured or protected by the Constitution of the United States." 42 U.S.C. § 1997a. The Court finds no indication in the language or the legislative history of the FHA to support the conclusion that Congress intended that Act to protect housing discrimination in detention facilities; especially since such facilities are intended to limit, rather than facilitate, prisoners freedom of movement.

While no reported case has considered whether a detention facility is a "dwelling" within the meaning of the FHA, this precise issue has been addressed in two recent unpublished opinions from this District. In Gold v. Griego, 2000 U.S. Dist. LEXIS 14897, No. CIV 99-1137 DJS/WWD (D.N.M. Feb. 22, 2000), the plaintiff, as in the instant case, alleged sexual assault as a pre-trial detainee at a county detention center in violation of the FHA. The court considered the legislative history and purpose of the FHA and interpretative case law, and rejected the plaintiff's claim that the detention center fell within the meaning of "dwelling" under the FHA. In reaching this conclusion, the [**15] Court relied heavily on the legislative history and purpose of the FHA which "was to promote freedom of choice in housing and to prevent humiliation resulting from racially discriminatory housing practices." Slip. op. at 5 (citing 114 Cong. Rec. 5643 (1968)). The Gold opinion goes on to quote the FHA House Report indicating that "the FHA was enacted following the urban unrest of the mid-1960s and in the aftermath of the assassination of the Rev. Dr. Martin Luther King, Jr.," and points out it was extended to handicapped persons in 1988 because such persons "have been the victims of unfair and discriminatory housing practices." Slip op. at 5 (quoting 1988 U.S. Code Cong. & Admin. News 2176 and 2174). Based on this history, the Gold court concluded, "this legislative history makes it clear that Congress' intent was to protect a person's home." Slip op. at 6.

In Machacek v. Bustamante,. No. CIV 99-1082 JP/LFG (D.N.M. May 3, 2000), the plaintiffs again alleged sexual assault during their treatment in a detox program at the county detention center. The court, citing several cases and the Gold decision, rejected plaintiffs' claim that the detention center fell within the [**16] meaning of "dwelling" under the FHA.

[*1163] Plaintiff urges the Court to adopt a more expansive interpretation of the FHA arguing: "Although the original impetus for the FHA may have been to assure racial minorities equal access to desirable neighborhoods, it was clearly written to cover protected classes other than racial minorities ... 'dwellings' other than suburban homes ... and acts other than simple denial of access [to housing]." Doc. 27 at 9. The Court agrees with Plaintiff that both legislative changes and court rulings have extended the FHA's protections to a greater number of people and have created a generous construction of the notion of "dwelling." Nonetheless, the Court finds that the amendments of the FHA and broad judicial interpretations of that Act remain rooted in congressional intent to provide freedom of choice in housing, a purpose antithetical to incarceration. Thus, the Court is unable to conclude, as Plaintiff does, that "applying the FHA to detention centers ... is entirely consistent with the FHA's important remedial policies ...." Id.


For all of the reasons discussed above, the Court concludes that the Hobbs City Jail is not [**17] a "dwelling" within in the meaning of the FHA.

IT IS HEREBY ORDERED that Defendants' Motion to Dismiss Count III of Plaintiff's Complaint be, and hereby is, GRANTED.

Dated at Albuquerque this 25th day of September, 2000.


United States District Judge