BRENDA C. NORMAN; DAVID NORMAN, Husband and Wife v. Rancho Del Lago Community Association, an Arizona non-profit corporation

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BRENDA C. NORMAN; DAVID
NORMAN, Husband and Wife,
Plaintiffs-Appellants,
v.
RANCHO DEL LAGO COMMUNITY
ASSOCIATION, an Arizona non-profit
corporation,
Defendant-Appellee.
No. 22-15111
D.C. No.
4:19-cv-00486-JAS-LCK
MEMORANDUM*
Appeal from the United States District Court
for the District of Arizona
James Alan Soto, District Judge, Presiding
Argued and Submitted December 9, 2022
Phoenix, Arizona
Before: WARDLAW and BUMATAY, Circuit Judges, and GLEASON,** District
Judge.
Brenda and David Norman (the Normans) filed the underlying complaint
alleging that the Rancho Del Lago Community Association (RDL) violated the Fair
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Sharon L. Gleason, Chief United States District Judge
for the District of Alaska, sitting by designation.
FILED
JAN 3 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Housing Act (FHA), 42 U.S.C. § 3601 et seq., by denying the Normans’ request for
approval of an 11-foot-wide second driveway on their property as an
accommodation for Brenda Norman’s walking disability.
The district court adopted the magistrate judge’s Report and Recommendation
in full and granted summary judgment to RDL on this claim because the Normans
failed to make the requisite showing that the 11-foot-wide driveway was a necessary
accommodation under the FHA. See Dubois v. Ass’n of Apartment Owners of 2987
Kalakaua, 453 F.3d 1175, 1179 (9th Cir. 2006) (citing 42 U.S.C. § 3604(f)(3)(B)).
The Normans appeal that decision here. We have jurisdiction pursuant to 28 U.S.C.
§ 1291 and we affirm.
To prove necessity, the Normans had to “show that, but for the
accommodation, they likely will be denied an equal opportunity to enjoy the housing
of their choice.” Giebler v. M & B Assocs., 343 F.3d 1143, 1155 (9th Cir. 2003)
(quoting Smith & Lee Assocs., Inc. v. City of Taylor, 102 F.3d 781, 795 (6th Cir.
1996)). In her sworn declaration, Brenda Norman stated that the second driveway is
“medically necessary and reasonable.” But this declaration contradicts Brenda
Norman’s statements to RDL’s owner and manager, Spencer Brod, that a walkway
half the width of the second driveway would suffice. Her acknowledgment that the
walkway would accommodate her disability belies her assertion that an 11-foot-wide
driveway is necessary to accommodate her disability. Moreover, her declaration’s

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statement that the driveway is “medically necessary and reasonable” is conclusory,
and such conclusory statements that are unsupported by the record are not sufficient
to defeat a motion for summary judgment. See Arpin v. Santa Clara Valley Transp.
Agency, 261 F.3d 912, 922 (9th Cir. 2001). While Brenda Norman’s treating
physicians established that she needs a “solid walking surface,” they acknowledged
only that the 11-foot-wide second driveway is a “suitable accommodation,” and not
a necessary one. Based on this record, the Normans did not prove that a second 11-
foot-wide driveway is a necessary accommodation.
The Normans assert that the district court erred by adopting the magistrate
judge’s Report and Recommendation because it made several errors with respect to
the reasonableness inquiry. But the report did not reach the question of
reasonableness, deciding instead that the Normans failed to prove necessity. Since
the lack of proof of necessity was dispositive, there was no need for the district court
to reach, or for us to address, reasonableness. See United States v. Cal. Mobile Home
Park Mgmt. Co., 107 F.3d 1374, 1381 (9th Cir. 1997) (affirming the judgment for
defendants because the plaintiff “failed to introduce any evidence of an essential
element of a prima facie case under 42 U.S.C. § 3604(f)(3)” by “fail[ing] to show
that the [proposed accommodation] ‘may be necessary’ to afford her an equal
opportunity to use and enjoy her dwelling”).

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We also do not reach the question of punitive damages because the Normans
were unable to show that they experienced a discriminatory housing practice. See
42 U.S.C. § 3613(c)(1) (“[I]f the court finds that a discriminatory housing practice
has occurred . . . the court may award the plaintiff . . . punitive damages . . . .”).
AFFIRMED.

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