United States District Court, Northern District of Illinois
December 17, 1973
CALVIN HOLLINS AND THERESA HOLLINS, HIS WIFE, PLAINTIFFS,
WILHELM KRAAS ET AL., DEFENDANTS.
The opinion of the court was delivered by: Bauer, District Judge.
MEMORANDUM OPINION AND ORDER
This cause comes on the motion of certain defendants, the
Cosmopolitan National Bank of Chicago, Elmer A. Calvert, Jr., and
Valerie Calvert to dismiss the instant complaint.
This is an action seeking to redress the alleged deprivation of
the plaintiff's civil rights by the defendants alleged refusal to
rent an apartment to the plaintiffs. This action arises under the
Civil Rights Act of 1866, 42 U.S.C. § 1982, and the Fair Housing
Act of 1968, 42 U.S.C. § 3604. Jurisdiction is allegedly
conferred on this Court by 28 U.S.C. § 1343(3), (4) and § 2201,
and 42 U.S.C. § 3612.
The plaintiffs, in their complaint, allege, inter alia, the
1. Plaintiffs are Negro citizens of the United States
who reside in Forest Park, Illinois.
2. Upon information and belief, defendants Wilhelm
Kraass and Amanda Kraass, his wife, are and at all
times relevant hereto were the rental agents
and/or owners of an apartment building located at
7222 Dixon, Forest Park, Illinois.
3. Upon information and belief defendant Elmer and
Valerie Calvert are and at all times relevant
hereto were the owners of an apartment building
located at 7222 Dixon, Forest Part, Illinois.
4. On information and belief, defendant Cosmopolitan
National Bank of Chicago holds the property
located at 7222 Dixon, Forest Park, Illinois, in
5. On April 24, 1973 defendants refused to lease the
plaintiffs a unit in said building solely because
plaintiffs are Negroes. Defendants represented to
plaintiffs, because of their race, that the unit
was not available for rent, when in fact at the
time of the refusal, the unit was available for
rent. At the time of the refusal, plaintiffs were
ready, willing and able to rent said unit at the
rental price set by the defendants.
6. Plaintiffs have no adequate remedy at law, or
otherwise, for the harm done by the defendants;
and plaintiffs have and will continue to suffer
great and irreparable damage and injury as a
proximate result of defendants' acts unless these
acts and this conduct of defendants are enjoined.
The defendants have acted maliciously and are
guilty of willful and wanton disregard of the
rights and feelings of plaintiffs.
The plaintiffs seek: (1) that an injunction be granted
permanently restraining and enjoining the defendants from
refusing, on the grounds of race, to rent to plaintiffs the unit
in question or any other unit managed or owned by the defendants;
(2) that the Court grant actual damages of $50,000 from each and
every defendant, plus reasonable attorneys fees and costs; (3)
that the Court grant $25,000 exemplary and punitive damages from
The defendants, in support of their instant motion, contend:
1. On October 29, 1963, the Calverts conveyed the
realty in question to
Cosmopolitan by Warranty Deed in Trust, which was
recorded on November 26, 1963 with the Cook County
Recorder of Deeds. On the same day Cosmopolitan
and the Calverts entered into a Trust Agreement.
By reason of the deed, and Agreement, Cosmopolitan
merely holds legal title to the said realty, but
has no rights of possession, management, use or
control thereof material to this cause, and can
neither incur personal liability nor be subject to
any claim, judgment or decree such as plaintiffs
seek and plaintiffs had notice thereof.
2. On August 22, 1969, Cosmopolitan, the Calverts and
defendants Wilhelm Kraass and Amanda Kraass
(hereinafter together referred to as "the
Kraasses") entered into Articles of Agreement for
Trustee's Deed, by reason of which the Kraasses
have thereafter had and still have sole and
exclusive rights of possession, management, use
and control of the realty in question as to all
respects material to this cause.
3. Neither Cosmopolitan nor the Calverts, nor any
agent of them or either of them ever: (a) dealt
with plaintiffs; (b) authorized the Kraasses to
serve as rental agents for them or either of them;
or (c) authorized the Kraasses to commit any act
in violation of any federal statute or regulation,
but Cosmopolitan and the Calverts bound the
Kraasses, by paragraph 20 of the said Articles of
Agreement for Trustee's Deed, by which the
Kraasses have agreed, to comply with the law. No
such violation for which the Kraasses may be
liable is chargeable to Cosmopolitan or to the
Calverts or either of them.
4. No act alleged in the Complaint was performed by
or is chargeable to Cosmopolitan or the Calverts,
except mere ownership. Plaintiffs have dealt
solely with Wilhelm Kraass or Amanda Kraass, and
did not, at any time meterial herein, know the
identity of Cosmopolitan or of the Calverts or
either of them as an owner of the subject realty
or reasonably believe them or either of them to be
in any way liable for any acts done to their
The relevant defendants have verified the above allegations
made in the instant motion to dismiss.
The plaintiffs, in opposition to the instant motion, contend
that the joinder of the instant defendants is necessary for just
adjudication of the instant action and that Clause 5 of the
Articles of Agreement may be reasonably construed to provide that
Purchasers, Amanda and Wilhelm Kraass, may not lease premises
without the written direction of the Calverts and the consent of
Cosmopolitan National Bank.*fn*
It is the opinion of this Court that the verified motion of
defendants Valerie Calvert, Elmer A. Calvert and Cosmopolitan
National Bank of Chicago to dismiss the instant complaint should
be granted because the plaintiffs have failed to properly state
a cause of action against these defendants.
The purpose of the Fair Housing law and in this respect the
application of the Civil Rights Act of 1866 is to provide a
remedy against those individuals who are guilty of unlawful
discrimination in the rental or sale of housing and is not
directed at those who merely are responsible for putting the
violator in the position in which he can act improperly. Kennedy
Park Home Association v. City of Lackawanna, 318 F. Supp. 669
(W.D.N.Y. 1970); affirmed 436 F.2d 108 (2nd Cir. 1970), cert.
denied, 401 U.S. 1010, 91 S.Ct. 1256, 28 L.Ed.2d 546 (1971).
It is well settled that police supervisory personnel are not
liable for damages under 42 U.S.C. § 1983 to one injured by
police misconduct absent direct personal participation.
Ashenhurst v. Carey, 351 F. Supp. 708 (N.D.Ill. 1972); Barrows v.
Faulkner et al., 327 F. Supp. 1190 (N.D.Okla. 1971); Sanberg v.
Daley, 306 F. Supp. 277 (N.D.Ill. 1969). Similarly, an owner of a
piece of realty or a bank holding it in trust should not be
liable for damages under 42 U.S.C. § 3604 or 42 U.S.C. § 1982
absent actual and personal involvement.
The defendants Valerie Calvert, Elmer A. Calvert and
Cosmopolitan National Bank in their uncontroverted verified
motion clearly demonstrate that they never authorized the
Kraasses to act as their agents or to do any act in violation of
any federal statute or regulation.
The plaintiffs, in the complaint, have failed to specifically
state that Valerie Calvert, Elmer A. Calvert or the Cosmopolitan
National Bank had any actual and personal involvement in the
instant controversy. It appears that the only persons who dealt
with the plaintiffs and allegedly deprived them of their right to
fair housing were Wilhelm Kraass or Amanda Kraass. Further,
Wilhelm Kraass and Amanda Kraass have not even been properly
alleged to be agents of the other defendants. Thus the plaintiffs
have failed to properly allege a cause of action against Mr. and
Mrs. Calvert and Cosmopolitan National Bank. There is no need to
enjoin defendants Valerie Calvert, Elmer A. Calvert or the
Cosmopolitan National Bank from in the future violating the
instant statutes because the statutes themselves are sufficient
prohibition against any future illegal acts of the defendants.
Accordingly, the motion of defendants Mr. and Mrs. Calvert and
Cosmopolitan National Bank to dismiss is granted and the cause is
dismissed without prejudice as to those defendants.