The opinion of the court was delivered by: Slomsky, J.
Before the Court is Defendant Valley Housing Development Corporation's Motion for Summary Judgment on all counts (Doc. No. 32). Plaintiff Noelia Solivan filed a Response in Opposition to Defendant's Motion for Summary Judgment (Doc. No. 39) seeking denial of the motion in its entirety.
On May 9, 2007, Plaintiff filed suit in the Middle District of Pennsylvania against Defendant Valley Housing Development Corporation and Defendant United-Raad Balliet Investments. The case was transferred to this Court on June 11, 2008. In Count I of the Complaint, Plaintiff alleges a claim for negligence. In Count II, Plaintiff alleges a violation of the Fair Housing Act ("FHA"). In Count III, Plaintiff alleges a violation of Section 504 of the Rehabilitation Act ("RA"). In Count IV, Plaintiff alleges a violation of Title II of the Americans with Disabilities Act ("ADA"). In Counts V and VI, Plaintiff alleges violations of her civil rights under 42 U.S.C. §§ 1981, 1983.
On September 17, 2009, Defendant Valley Housing Development Corporation filed the instant Motion for Summary Judgment (Doc. No. 32).*fn1
The following facts are viewed in the light most favorable to Plaintiff as the non-moving party. Defendant Valley Housing Development Corporation (hereinafter "Defendant") is a nonprofit entity created by the Lehigh County Housing Authority. Pl. Mem. Opp. Def. Mot. Summ. J., 4 (hereinafter "Pl. Mem. Opp. Mot."). Defendant leases the premises in question and rents out apartment units to qualified, low income tenants selected from the Housing Authority's applicants. Id. Plaintiff has been a resident of Defendant's apartment building since May 2000. Pl. Mem. Opp. Mot., 1; Br. Supp. Mot. Summ. J. Of Def., 2 (hereinafter "Br. Supp. Def. Mot."). This lawsuit arose from a fall Plaintiff suffered in her building on November 14, 2005. Pl. Mem. Opp. Mot., 1; Br. Supp. Def. Mot., 2
Plaintiff was initially living on the third floor of the apartment building, which did not have an elevator. Pl. Mem. Opp. Mot., 1; Br. Supp. Def. Mot., 2 In June 2002, Plaintiff submitted a note from a physician to the property manager which requested that she be moved to any available first floor apartment due to her medical condition. Pl. Mem. Opp. Mot., 2-3; Br. Supp. Def. Mot., 2. Her physical condition prevented her from engaging in any strenuous activity.*fn2 Pl. Mem. Opp. Mot., 2-3. Thereafter, Plaintiff made numerous verbal requests to rent a first floor apartment in exchange for her unit on the third floor. Pl. Mem. Opp. Mot., 2. On November 14, 2005, Plaintiff, while still residing on the third floor, fell near the stairs in a common area outside of her apartment. Id. at 5; Br. Supp. Def. Mot., 2. Prior to the fall, Plaintiff made several trips up and down the stairs and ran several errands throughout the day, which she asserts eventually caused fatigue, leading to her fall. Pl. Mem. Opp. Mot., 5; Br. Supp. Def. Mot., 3-4. Plaintiff was transported to a hospital by ambulance and remained there for ten days. Pl. Mem. Opp. Mot., 5. On December 6, 2005, Plaintiff returned to the hospital and underwent an amputation of her left leg from a point above her knee, allegedly stemming from injuries and complications arising from her November 14, 2005 fall. Id. at 5.
Two apartments became available for occupancy on the first floor between Plaintiff's initial request for a transfer and the date of her fall. One apartment, which became available twice, was reserved for wheel-chair bound tenants, and in both situations, a wheel-chair bound tenant moved into the unit. Br. Supp. Def. Mot., 4. A third vacancy occurred in June 2005, but Defendant alleges it was not ready for occupancy due to the condition it was left in by the prior tenant, and even if it was ready, there was another person ahead of Plaintiff on a waiting list maintained by Defendant for first-floor apartments. Br. Supp. Def. Mot., 5.
Plaintiff claims that maintenance failed to timely do a move-out inspection on the first floor apartment that became available in June 2005, that a move-out inspection was not performed until after Plaintiff fell, and that Defendant has not produced the "transfer list" showing another tenant ahead of Plaintiff on the waiting list for first floor apartments. Pl. Mem. Opp. Mot., 2-3. Plaintiff also alleges that due to a change in property management employees, there was a lack of communication and action regarding the potential transfer. Id. at 3.
II. SUMMARY JUDGMENT STANDARD
Granting summary judgment is an extraordinary remedy. Summary judgment is only appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c); Am. Eagle Outfitters v. Lyle & Scott Ltd., No 08-4807, at 11 (E.D. Pa Sept. 11, 2009). An issue is genuine only if there is a sufficient evidentiary basis on which a reasonable jury could find for the non-moving party, and a factual dispute is material only if it might affect the outcome of the suit under governing law. Kaucher v. County of Bucks, 455 F.3d 418, 423 (3d Cir. 2006) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). The Court's task is not to resolve disputed issues of fact, but to determine whether there exist any factual issues to be tried. Liberty Lobby, 477 U.S. at 247-49.
In ruling on a motion for summary judgment, the Court must view the evidence, and make all reasonable inference from the evidence, in the light more favorable to the nonmoving party. Liberty Lobby, 477 U.S. at 252. Whenever a factual issue arises which cannot be resolved without a credibility determination, at this stage the Court must credit the nonmoving party's evidence over that presented by the moving party. Liberty Lobby, 477 U.S. at 255. Distilled to its essence, the summary judgment standard requires the non-moving party to create a "sufficient disagreement to require submission [of the evidence] to a jury." Liberty Lobby, 477 U.S. at 251-52.
Defendant asserts it is entitled to summary judgment for seven reasons: 1) Plaintiff's claim for negligence fails for lack of evidence showing Valley Housing breached a duty owed to her and that any breach of duty caused her injury;*fn3 2) Plaintiff's claims are barred by the applicable statutes of limitations; 3) Plaintiff does not have standing to bring a claim for violation of the FHA, ADA or RA because she did not have a handicap or disability as defined under the Acts; 4) Plaintiff's claims for violation of the FHA, ADA and RA must fail for lack of evidence showing that Defendant discriminated against Plaintiff because of her alleged disability, and for lack of evidence showing Defendant failed to reasonably accommodate Plaintif; 5) Plaintiff's claims for violation of the FHA, ADA and RA fail for lack of supporting expert testimony; 6) Plaintiff is not entitled to recover under the FHA, ADA or RA for the physical injuries she allegedly sustained as a result of her fall; and 7) Plaintiff's claim under 42 U.S.C. § 1983 fails for lack of evidence showing Defendant acted under color of state law. For reasons set forth below, the Court agrees with Defendant's argument regarding Plaintiff's claim under 42 U.S.C. § 1983, but disagrees with Defendant's other arguments. Consequently, the Motion for Summary Judgment will be granted in part and denied in part.
A. The Fair Housing Act, Americans with Disabilities Act, and Rehabilitation Act
Courts considering combinations of claims raised under the Fair Housing Act, Americans with Disabilities Act, and Rehabilitation Act have noted that the Acts contain "similar language and related purposes." Spieth v. Bucks County Housing Authority, 594 F. Supp. 2d 584, 590 (E.D. Pa. 2009) (discussing the similarity of the ADA and RA). Regarding the ADA and RA, Congress has explicitly directed that the two statutes "be construed and applied consistently." Spieth, supra (citing Yeskey v. Commonwealth of Pennsylvania Dept. of Corrections, 118 F.3d 168, 170 (3d Cir. 1997)). Regarding similarities between the FHA, ADA and RA, the Acts contain instances of nearly identical language, such as the definition of "handicap" in the FHA and RA and of "disability" in the ADA. In such contexts, the Court will discuss the statutes in a generic fashion. See Cohen v. Township of Cheltenham, 174 F. Supp. 2d 307, 324 (E.D. Pa. 2001) (noting that the definitions of "handicap" and "disability" are "virtually identical and are therefore used interchangeably" (internal citation and quotation marks omitted)). The FHA, however, has provisions ...