Calhoun v. The Greens at Lake Overholser et al

THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
YOLANDA CALHOUN, 	)
)
Plaintiff, 	)
)
v. 	) 	Case No. CIV-25-794-SLP
)
THE GREENS AT LAKE OVERHOLSER, 	)
and JESSICA JEFFRIES, 	)
)
Defendants. 	)
O R D E R
Before the Court are two related motions to dismiss. First, Defendant The Greens
at Lake Overholser filed a Motion to Dismiss [Doc. No. 12] and Defendant Jessica Jefferies
filed a Special Appearance and Motion to Dismiss.1 Plaintiff has not responded to either
Motion, and the time do so has passed.2 	For the reasons that follow, the Motions to
Dismiss are GRANTED IN PART and DENIED IN PART. Further, pursuant to 28 U.S.C.
§ 1915(e)(2), the Court screens the remaining claims in the Complaint and finds dismissal
is appropriate.
1 The Federal Rules of Civil Procedure do not recognize special appearances. 	Cf. Helms v.
Sorenson, No. CIV-14-1003-W, 2015 WL 1569181, at *1 (W.D. Okla. Apr. 7, 2015) (“Rule 12 . . .
abolished the distinction between general and special appearances in 1938, and these labels have
no legal significance.”).
2 Notwithstanding this Court’s local rules, which grant the Court discretionary authority to deem
the Motions confessed, see LCvR 7.1(g), the Tenth Circuit requires a district court “to still examine
the allegations in the plaintiff’s complaint and determine whether the plaintiff has stated a claim
upon which relief can be granted. Issa v. Comp USA, 354 F.3d 1174, 1178 (10th Cir. 2003).
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I. 	Background3
Plaintiff Yolanda Calhoun, proceeding pro se and in forma pauperis, brings this
action against The Greens at Lake Overholser (“The Greens”) and Jessica Jeffries,
Community Director. 	Plaintiff asserts claims under the Fair Housing Act (“FHA”), 42
U.S.C. §§ 3601 et seq., arising from events beginning in November 2022 and culminating
in Plaintiff’s eviction on March 20, 2023.4 Specifically, Plaintiff alleges that Defendants
retaliated, harassed, and threatened to evict Plaintiff when she notified Defendants that
chemical spraying in her unit would aggravate allergies associated with a disability. She
further alleges that Defendants continued to retaliate after the eviction by claiming she
owed rent, eviction costs, attorney’s fees, and other charges not awarded in the state
eviction judgment, and that these alleged actions resulted in the denial of rental applications
by future landlords. As a result, Plaintiff incurred costs related to hotels, storage, and other
expenses during her displacement and suffered emotional harm. 	The Court, therefore,
liberally construes Plaintiff’s Complaint to assert claims for violation of the FHA based on
disability discrimination, failure to accommodate, and retaliation.
3 The Court “accept[s] as true all well-pleaded factual allegations in the complaint and view[s]
them in the light most favorable to [Plaintiff].” Safe Streets All. v. Hickenlooper, 859 F.3d 865,
878 (10th Cir. 2017) (quoting S.E.C. v. Shields, 744 F.3d 633, 640 (10th Cir. 2014)).
4 The Court takes judicial notice of the publicly available state court docket in The Greens at Lake
Overholser v. Calhoun, Case No. SC-2023-310, District Court of Canadian County, Oklahoma,
which reflects that a Journal Entry of Forcible Entry and Detainer was filed on March 13, 2023,
and an Execution and Writ of Assistance was served on Plaintiff on March 20, 2023. See United
States v. Ahidley, 486 F.3d 1184, 1192 (10th Cir. 2007) (exercising discretion “to take judicial
notice of publicly-filed records in our court and certain other courts concerning matters that bear
directly upon the disposition of the case at hand”); United States v. Pursley, 577 F.3d 1204, 1214
n.6 (10th Cir. 2009).
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Procedurally, Plaintiff initially filed suit asserting similar claims in this Court. See
Calhoun v. The Greens at Lake Overholser, Case No. CIV-25-141-SLP (“Calhoun I”). In
Calhoun I, Plaintiff filed her initial complaint on February 19, 2025. After Plaintiff failed
to timely serve Defendants pursuant to Rule 4(m) of the Federal Rules of Civil Procedure,
the Court issued an Order to Show Cause. 	[Calhoun I, Doc. No. 10]. 	Plaintiff did not
respond. 	On June 5, 2025, the Court dismissed that action without prejudice on two
separate grounds: (1) pursuant to Rule 4(m) for failure to effect timely service and (2)
pursuant to Rule 41(b) failure to comply with the Court’s Order to Show Cause. 	See
[Calhoun I, Doc. No. 11]. Plaintiff then filed the present action on July 17, 2025.
Both Defendants move to dismiss pursuant to Fed. R. Civ. P. 12(b)(6). [Doc. Nos.
12, 16]. The Greens moves to dismiss on the grounds that (1) Plaintiff’s FHA claims are
barred by the statute of limitations, and (2) the Court should decline to exercise
supplemental jurisdiction over any state law claims if the FHA claims are dismissed. [Doc.
No. 12]. 	Defendant Jeffries moves on the additional ground of insufficient service of
process under Rule 12(b)(5). [Doc. No. 16]. Plaintiff has not responded to either Motion
and has filed nothing in this action since approximately September 2025.
II. 	Governing Standards
A. Motion to Dismiss
In addressing a Rule 12(b)(6) motion, a court accepts all well-pleaded factual
allegations of the complaint as true, views those allegations in the light most favorable to
the plaintiff, and resolves all reasonable inferences in the plaintiff’s favor. Greer v. Moon,
83 F.4th 1283, 1292 (10th Cir. 2023). But a complaint “cannot rely on labels or conclusory
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allegations.” Id. Instead, it “‘must contain sufficient factual matter, accepted as true, to
state a claim to relief that is plausible on its face.’” Id. (quoting Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009)).
A Rule 12(b)(5) motion challenges the plaintiff’s mode or method of serving
process on the objecting party. 	Craig v. City of Hobart, No. CIV-09-0053-C, 2010 WL
680857, at *1 (W.D. Okla. Feb. 24, 2010) (citation omitted). “In her motions, letters, and
supporting briefs, Plaintiff need only make a prima facie showing that service was proper
under Rule 4.” Cumby v. SSM Health, No. CIV-25-255-R, 2025 WL 2701508, at *2 (W.D.
Okla. Sept. 22, 2025) (citations omitted). 	However, the plaintiff bears the burden of
showing compliance with all statutory and due process requirements. 	Craig, 2010 WL
680857, at *1 (citing Fisher v. Lynch, 531 F. Supp. 2d 1253, 1260 (D. Kan. 2008)).
“[W]hen a court finds that service is insufficient but curable, it generally should quash the
service and give the plaintiff an opportunity to re-serve the defendant” rather than dismiss
the action. Pell v. Azar Nut Co., 711 F.2d 949, 950 n.2 (10th Cir. 1983).
As a pro se litigant, Plaintiff is entitled to a liberal construction of her Complaint.
See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). But even so, the Court must
“disregard all conclusory statements of law and consider whether the remaining specific
factual allegations, if assumed to be true, plausibly suggest the defendant is liable.” Kansas
Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1214 (10th Cir. 2011). Furthermore, a pro
se litigant must “follow the same rules of procedure that govern other litigants.” 	Nielsen
v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994). And the Court will not assume the role of
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advocate on behalf of a pro se litigant. See Kincaid v. Unified Sch. Dist. No. 500, Kansas
City, Kansas, 94 F.4th 936, 947 (10th Cir. 2024).
B. Screening Complaints of Plaintiffs Proceeding In Forma Pauperis
Because Plaintiff proceeds in forma pauperis, her Complaint is subject to screening
pursuant to 28 U.S.C. § 1915(e)(2) and the Court may sua sponte dismiss the Complaint if
it is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks
monetary relief against a defendant who is immune from such relief. Id.; see also Kay v.
Bemis, 500 F.3d 1214, 1217–18 (10th Cir. 2007) (indicating that a court uses same analysis
for complaint’s sufficiency whether performed sua sponte or pursuant to a motion to
dismiss under Federal Rule of Civil Procedure 12(b)(6)).
III. 	Discussion
A. Defendants’ Motions to Dismiss
1. 	Statute of Limitations
Defendants move for dismissal on the ground that Plaintiff’s FHA claims are barred
by the applicable statute of limitations. The FHA requires that a private plaintiff file suit
“not later than 2 years after the occurrence or the termination of an alleged discriminatory
housing practice.” 42 U.S.C. § 3613(a)(1)(A). Plaintiff was evicted on March 13, 2023,
and the present Complaint was filed on July 17, 2025, approximately four months after the
limitations period expired. Accordingly, to the extent Plaintiff’s claims under the FHA are
based on the eviction or pre-eviction conduct, those claims are untimely.
Plaintiff’s filing of a prior lawsuit does not change this result. As Defendants note,
courts have held that “the timely filing of a lawsuit which is subsequently dismissed
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without prejudice does not toll, or ‘pause’ the running of the statute of limitations.” Chaney
v. Wal-Mart Stores Inc., No. CIV-16-111-R, 2016 WL 4083502 (W.D. Okla. Aug. 1,
2016), aff’d, 677 F. App’x 494 (10th Cir. 2017); see also Bee v. Whirlpool Corp., No. 13-
CV-200-JHP-PJC, 2013 WL 5351082, at *1 (N.D. Okla. Sept. 24, 2013); Collins v.
McHugh, No. 14-CV-526-JHP, 2015 WL 4111324 (E.D. Okla. July 7, 2015) (“state tolling
and saving provisions are not applicable” to a federal statute of limitations to a federal
claim) (internal citations omitted). 	Thus, Plaintiff’s pre-eviction claims are dismissed
pursuant to Rule 12(b)(6) as time-barred.5
The same analysis, however, is not necessarily applicable to Plaintiff’s assertion that
Defendants continued retaliation after the eviction by Defendants “claiming Plaintiff[]
owes past rent, eviction costs, and attorneys fees, and fees for damages.” 	Compl. [Doc.
No. 1] at 3. Although Plaintiff does not include any details as to the timing of the ongoing
retaliation, her Complaint implies that the conduct was still occurring through at least the
date she filed the Complaint on July 17, 2025. 	Thus, the Court declines to find that any
claim stemming from the allegation of post-eviction retaliation is time-barred.
5 Plaintiff did not file a response to the Motions and therefore, has not invoked equitable tolling
and forfeits any such argument. 	See Dale v. Equine Sports Med. & Surgery Race Horse Serv.,
PLLC, 836 F. App’x 657, 664 (10th Cir. 2020). Even if the Court were to apply equitable tolling,
Plaintiff’s pre-eviction claims would remain untimely. When Plaintiff filed Calhoun I on February
19, 2025, twenty-nine days remained on the two-year limitations period before it expired on March
20, 2025. Under equitable tolling principles, the limitations clock would have paused upon that
filing and resumed upon dismissal of Calhoun I on June 5, 2025, leaving Plaintiff twenty-nine
days — until July 4, 2025 — within which to refile. 	See Chaney, 2016 WL 4083502, at *2
(unpublished). Plaintiff filed the present action on July 17, 2025—thirteen days after that deadline.
Accordingly, Plaintiff’s pre-eviction claims are time-barred even under the most generous
application of equitable tolling principles, and the Court need not determine whether equitable
tolling is available as a threshold matter.
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2. 	Service on Defendant Jeffries
Defendant Jeffries additionally moves for dismissal on the basis of insufficient
service of process. 	See Fed. R. Civ. P. 12(b)(5). 	She asserts that Plaintiff’s attempted
service was inadequate under Rule 4(e) because Plaintiff attempted to serve Ms. Jeffries at
The Greens’ business address but did not serve her personally at that location. Resp. [Doc.
No. 16] at 4–5. 	Thus, she argues that Plaintiff’s attempt to serve Defendant Jeffries is
ineffective. 	See Fed. R. Civ. P. 4(e) (permitting service by personal delivery on the
individual, service at the individual’s dwelling with a suitable resident, service on an
authorized agent, or service pursuant to state law). The Court agrees.
As no response was filed to Defendant Jeffries’ Motion, the Court deems the factual
representations made therein confessed. 	See LCvR 7.1(g). 	“Further, Plaintiff bears the
burden 	of 	demonstrating 	that 	[s]he 	complied 	with 	all 	statutory 	and 	due 	process
requirements in opposing a Rule 12(b)(5) motion.” Childers v. Town of Valley Brook, No.
CIV-22-759-G, 2023 WL 6380014, at *2 (W.D. Okla. Sept. 29, 2023) (granting a 12(b)(5)
motion as confessed where the plaintiff did not respond) (citation and internal quotations
omitted). Thus, based upon the current record, the Court concludes Plaintiff has not met
her burden and Defendant Jeffries is entitled to relief pursuant to Federal Rule of Civil
Procedure 12(b)(5).6
6 Because the Court concludes herein that Plaintiff fails to state a claim for the claims that are not
time-barred, the Court declines to allow Plaintiff an additional opportunity to cure the service
defects and finds dismissal is appropriate.
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B. Section 1915(e)(2) Screening
Under the FHA, “it is unlawful to discriminate against a ‘buyer or renter because of
a handicap,’ 42 U.S.C. § 3604(f)(1), or to coerce, intimidate, threaten, or interfere with a
person’s exercise or enjoyment of any right granted or protected by the FHA, id., §
3617.” Morgan v. Carrington Mortg. Servs., 719 F. App’x 735, 743 (10th Cir. 2017). “[A]
plaintiff makes out a prima facie case of intentional discrimination under the FHA[] merely
by showing that a protected group has been subjected to explicitly differential—i.e.
discriminatory—treatment.” Bangerter v. Orem City Corp., 46 F.3d 1491, 1501 (10th Cir.
1995). “To state a plausible claim under the FHA, a plaintiff must allege a causal
connection 	between 	her 	disability 	or 	protected 	activity 	and 	the 	alleged 	adverse
action.” Id. (citing Wilson v. Warren Cty., 830 F.3d 464, 467-68 (7th Cir. 2016) (affirming
dismissal 	under 	Rule 	12(b)(6) 	because 	plaintiff 	claiming 	violations 	of §§
3604(f)(1) & 3617 failed to plausibly allege that adverse action was “because of his
disability”)). To state a § 3617 retaliation claim, a plaintiff must allege that “(1) she is a
protected individual under the FHA, (2) she was engaged in the exercise or enjoyment of
her fair housing rights, (3) the defendants coerced, threatened, intimidated, or interfered
with the plaintiff on account of her protected activity under the FHA, and (4) the defendants
were motivated by an intent to discriminate.” 	Hatfield v. Cottages on 78th Cmty. Ass’n,
No. 21-4035, 2022 WL 2452379, at *8 (10th Cir. July 6, 2022).
Even under a liberal construction, Plaintiff fails to meet the mark on any of the
elements of a Fair Housing Act claim under § 3617. She asserts Defendants violated the
FHA by retaliating against her when they evicted her as well as in their efforts to collect
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on eviction costs and fees. She further asserts future landlords have used her eviction and
owed amounts as a reason to reject rental applications. However, this conclusory allegation
fails to connect the alleged interference directly to her disability or a protected activity.
Plaintiff does not allege that Defendants personally informed the future landlords of any
issues, and more fundamentally, Plaintiff does not allege that Defendants were motivated
by the intent to discriminate. Finally, while Plaintiff states she has a disability, she provides
no factual detail as to the nature of the disability aside from a reference to allergies. Thus,
from the face of the Complaint, it is not clear that Plaintiff has a “handicap” as defined by
42 U.S.C. § 3602 that would entitle her to the protections of the FHA.
In short, Plaintiff includes no well-pled facts connecting the alleged retaliation of
eviction or collection efforts to discrimination based on her membership in a protected
class. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007) (A complaint must contain
“enough facts to state a claim to relief that is plausible on its face.”). She further fails to
allege any facts supporting causation and intent. As such, the Complaint does not comply
with the pleading requirements of Rule 8, and should be dismissed. Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (explaining that “the pleading standard Rule 8 announces does not
require detailed factual allegations, but it demands more than an unadorned, the-defendant-
unlawfully-harmed-me accusation.”) (internal quotations and citations omitted); Mann v.
Boatright, 477 F.3d 1140, 1148 (10th Cir. 2007) (same). 	Accordingly, Plaintiff fails to
state a claim for retaliation stemming from both the eviction, itself, and any ongoing post-
eviction conduct.
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IV. 	Conclusion
IT IS THEREFORE ORDERED that Defendants’ Motions to Dismiss [Doc. Nos.
12, 16] are GRANTED IN PART and DENIED IN PART. The Motions are granted as to
Plaintiff’s claims for discrimination, retaliation, and failure to accommodate under the
FHA which are based on conduct arising out of or prior to the eviction. Those claims are
DISMISSED WITH PREJUDICE as time-barred.7 The Motions are denied as to claims
for post-eviction retaliation under the FHA.
IT IS FURTHER ORDERED that Plaintiff’s claims for post-eviction ongoing
retaliation under the FHA are DISMISSED WITHOUT PREJUDICE pursuant to 28 U.S.C.
§ 1915(e)(2).
A separate judgment of dismissal shall be filed contemporaneously.
IT IS SO ORDERED this 1st day of May, 2026.
7 “Dismissal of a claim, with prejudice, is appropriate where the claim is barred by a statute of
limitations.” Lester v. Minnesota Life Ins. Co., No. 13-CV-443-JED-PJC, 2014 WL 183937, at *2
(N.D. Okla. Jan. 14, 2014) (citing Gee v. Pacheco, 627 F.3d 1178, 1181, 1193 (10th Cir. 2010)
(affirming dismissal with prejudice of claims based on allegations showing claims were barred by
statute of limitations).
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