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HOLLINS v. KRAAS

United States District Court, Northern District of Illinois


December 17, 1973

CALVIN HOLLINS AND THERESA HOLLINS, HIS WIFE, PLAINTIFFS,
v.
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 following facts:

  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
     trust.

  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 each defendant.

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
     damage.

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.


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