United States District Court, Northern District of Illinois, E.D
July 22, 1980
CONCERNED TENANTS ASSOCIATION OF INDIAN TRAILS APARTMENTS, ALTHEA EDMUNDSON, HERMELIA JACKSON, RHUETTA MORGAN, GWENDOLYN WOODS, SONIA NAILS, REBECCA HENDERSON, JACQUILINE GRANT, JANICE ROBERTS, RODNEY AND PHYLLIS MCCARROL, INDIVIDUALLY AND ON BEHALF OF ALL OTHER PERSONS SIMILARLY SITUATED, PLAINTIFFS,
INDIAN TRAILS APARTMENTS, AN ILLINOIS LIMITED PARTNERSHIP, WESTERN ENTERPRISES, INC., AN ILLINOIS CORPORATION, MIDLAND MANAGEMENT COMPANY, KENNETH RINGBLOOM, DAVID JULIANO AND ALL UNKNOWN BENEFICIAL OWNERS, DEFENDANTS.
The opinion of the court was delivered by: Roszkowski, District Judge.
This cause comes before the court on defendants' motion to
dismiss the first amended complaint. For the reasons set forth
below, that motion is granted in part and denied in part.
Plaintiffs' motion to certify the class is granted, as is
their motion to communicate with class members.
I. FACTUAL BACKGROUND
Plaintiffs' first amended complaint sets forth six causes of
action against defendants for discrimination on the basis of
race in the terms and conditions of plaintiffs' tenancies and
in the provision to plaintiffs of services and facilities.
Briefly stated, the complaint alleges that when the population
of Indian Trails Apartments was predominantly white, quality
services were provided to white tenants by the defendants.
When the population of the project became predominantly black,
the services previously provided the white tenants disappeared
and the apartment project began to physically deteriorate.
Plaintiffs allege that these actions of the defendants
violated: (a) Title VIII of the Civil Rights Act of 1968,
42 U.S.C. § 3601 et seq. (Count 1); (b) Title VI of the Civil
Rights Act of 1964, 42 U.S.C. § 2000d et seq. (Count 2); (c)
Civil Rights Act of 1866, 42 U.S.C. § 1982 (Count 3); (d) the
Equal Protection Clause of the Fifth and Fourteenth Amendments
to the United States Constitution (Count 4); (e) Article I,
Section 17 of the Illinois Constitution (Count 5); (f)
contracts between HUD and the defendants (Count 6).
II. GENERAL PLEADING OBJECTIONS
The defendants argue that the first amended complaint should
be dismissed for failure to plead injury to the plaintiffs.
Three categories of plaintiffs are identified in the
complaint: (1) the tenants' association; (2) individually
named tenants; (3) un-named members of a purported class.
It is argued that the Concerned Tenants Association of
Indian Trails Apartments was never a tenant at Indian Trails,
and thus could not have been damaged. However, the Association
is comprised only
of tenants who suffered the injuries of which plaintiffs
complain. The Association itself necessarily suffers injury
when its members are injured. The defendants' contention that
the Association could not have been a victim of discrimination
because it was not in existence prior to 1975 is simply
without merit.*fn1 The violations alleged in the complaint
are continuing ones,*fn2 and the Association was in existence
when the actions complained of occurred.
The defendants next contend that the allegations concerning
the individually named plaintiffs have failed to satisfy the
requirements of Rule 12(b)(6). In considering the sufficiency
of a complaint to withstand a Rule 12(b)(6) motion to dismiss,
it must appear "beyond doubt that the plaintiff can prove no
set of facts in support of his claim which would entitle him
to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99,
102, 2 L.Ed.2d 80 (1957). The court must accept as true all
material facts well pleaded in the complaint, and must view the
alleged facts and make all reasonable inferences in the light
most favorable to the plaintiff. City of Milwaukee v. Saxbe,
546 F.2d 693, 704 (7th Cir. 1976). See also, Mescall v. Burrus,
603 F.2d 1266 (7th Cir. 1979). The complaint is sufficiently
specific to withstand defendants' motion.
Defendants find fault in the fact that the complaint does
not restate the relief requested after each cause of action.
There is no question that relief in the alternative or of
several different types may be demanded. F.R.Civ.Pro. Rule
8(a)(3). Also, a pleader need only make one demand for relief
regardless of the number of claims he asserts. Wright &
Miller, Federal Practice and Procedure: Civil § 1255. The
plaintiffs have properly pled the remedies they seek.
III. EXTENT OF TITLE VIII
The defendant contends that a claim for relief under Title
VIII of The Civil Rights Act of 1968 has not been stated. The
defendants' basic argument is that Title VIII does not
prohibit the type of racial discrimination of which plaintiffs
complain. Section 804 of Title VIII, 42 U.S.C. § 3604, makes it
(b) to discriminate against any person in the
terms, conditions, or privileges of sale or
rental of a dwelling, or in the provision of
services or facilities in connection therewith,
because of race, color, religion, sex, or national
origin. (Emphasis added).
The defendants argue that the emphasized phrase in § 3604(b)
only relates to activities that bear upon the availability of
housing, and that there are no allegations that the defendants
did anything to cause, promote, condone or prolong segregation.
They feel that for § 3604(b) to have applicability, the
complaint must allege that the defendants conduct was "intended
to keep the blacks out and the whites in."
Such a tortured interpretation of the application of §
3604(b) is ludicrous and runs counter to the plain and
unequivocal language of the statute. Quite clearly, the
plaintiffs have alleged that they are not getting the kinds of
services and facilities that were available to tenants when the
project was predominantly white, and that this differential
treatment existed because they are black. Extensive arguments
are presented by both sides as to this issue. This court can
but note that there need be no argument when the statutory
language is so clear. "The starting point in every case
involving construction of a statute is the language itself."
Ernst & Ernst v. Hochfelder, 425 U.S. 185, 96 S.Ct. 1375, 1383,
47 L.Ed.2d 668 (1976); Blue Chip Stamps v. Manor Drug Stores,
421 U.S. 723, 95 S.Ct. 1917, 1935, 44 L.Ed.2d 539 (1975); FTC
v. Bunte Bros., Inc., 312 U.S. 349, 61 S.Ct. 580, 85 L.Ed. 881
(1941). The plaintiffs have stated a claim under Title VIII of
the Civil Rights Act of 1968, specifically under
42 U.S.C. § 3604(b).*fn3
IV. EXHAUSTION OF ADMINISTRATIVE REMEDIES
The defendants contend that the plaintiffs have failed to
exhaust administrative remedies because they have not followed
enforcement procedures set forth in 42 U.S.C. § 3610.
Exhaustion of administrative remedies is not a necessary
prerequisite to bringing a lawsuit under 42 U.S.C. § 3612.
Gladstone Realtors v. Village of Bellwood, 441 U.S. 91, 99
S.Ct. 1601, 1610, 60 L.Ed.2d 66 (1979). No further discussion
need be had on this subject.
V. CONTINUING VIOLATION
Under § 3612(a), a civil suit may be brought in this court
within 180 days after the alleged discriminatory housing
practice occurred. Defendants argue that since the plaintiffs
pled activities that reach back to 1975, and this lawsuit was
not filed until 1979, that it must clearly be outside of the
180 day limit. Plaintiffs counter by noting that the amended
complaint sets forth a continuing violation for purposes of the
180 day limitation. They feel that the discriminatory actions
took place until April, 1979, when a consent decree was
entered. The complaint was filed in March, 1979. If the
continuing violation theory is a viable one here, then the
complaint was filed in a timely manner.
While most cases dealing with a continuing violation theory
for extending a statute of limitations have involved
employment discrimination under Title VII, the concept was
discussed in relation to Title VIII in Meyers v. Pennypack
Woods Home Ownership Assn., 559 F.2d 894, 899 (3rd Cir. 1977).
Although under the facts of that case no continuing violation
was found, the court implied that under certain circumstances
such a violation could be found. The Title VII cases where
continuing violations have been found involved alleged patterns
and practices of discrimination continuing to affect all
members of the plaintiff class whereas the Meyers case
concerned a discreet act of alleged discrimination against the
individual plaintiff. In this case, the alleged actions of the
defendants amounted to a pattern of failing to provide the same
kind of services at the project as were afforded white tenants
in the early 1970's. These actions allegedly occurred from
sometime in the mid-1970's up to the time the consent decree
was entered. This appears then to be a classic example of a
complaint alleging a continuing violation of 42 U.S.C. § 3604(b),
and thus the action was filed within 180 days of the
alleged discriminatory housing practice.
The defendants also argue that 42 U.S.C. § 3610(d) bars this
lawsuit. As noted earlier, utilization of the procedures in §
3610 are not a prerequisite to filing a suit under § 3612.
Defendants' argument is meritless.
VI. PRIVATE CLAIM FOR MONETARY DAMAGES — TITLE VI
The defendants argue that Title VI does not permit a private
claim for monetary damages. Section 601 of Title VI of the
Civil Rights Act of 1964, 42 U.S.C. § 2000d, provides:
No person in the United States shall, on the
ground of race, color, or national origin, be
excluded from participation in, be denied the
benefits of, or be subjected to discrimination
under any program or activity receiving Federal
The defendants note that there is a conflict among the
circuits as to whether Title VI permits a private cause of
conflict was laid to rest in Cannon v. University of Chicago,
441 U.S. 677
, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979), where the
Court clearly held that a private right of action does exist to
redress violations of Title VI. The court does agree, however,
that no private right of action exists under Title VI for
monetary damages. There is simply no case law to support such a
proposition, and Congress has not provided for such damages.
However, all forms of equitable relief are available to a
private plaintiff suing under Title VI. Guardians Ass'n. Etc.
v. Civil Serv. Com'n. of City of New York, 466 F. Supp. 1273,
1285 (S.D.N.Y. 1979).
As in their arguments regarding Title VIII, the defendants
contend that the plaintiffs have not exhausted their
administrative remedies under Title VI. While administrative
procedures short of filing a civil suit are certainly
available under Title VI, the Cannon Court held that such
remedies need not be exhausted:
For these same reasons, we are not persuaded that
individual suits are inappropriate in advance of
exhaustion of administrative remedies. Because
the individual complainants cannot assure
themselves that the administrative process will
reach a decision on their complaints within a
reasonable time, it makes little sense to require
99 S.Ct. 1946, 1963 n.41.
VII. COLOR OF LAW — COUNT II
Defendants contend that Count II of the first amended
complaint must be dismissed because there is no allegation
that the defendants acted under "color of law." No such
allegation is necessary. The statute relates to "any program
or activity receiving Federal financial assistance." The
statute makes it unlawful to discriminate on the basis of race
in any such program. Paragraphs 11-14 of the first amended
complaint detail the extensive "federal financial assistance"
received by the defendants. The plaintiffs' have properly pled
a violation of 42 U.S.C. § 2000d.
VIII. SECTION 1982 CLAIM
Defendants argue that Count 3 of the amended complaint,
which alleges a cause of action under 42 U.S.C. § 1982, fails
to state a claim upon which relief can be granted. 42 U.S.C. § 1982
All citizens of the United States shall have the
same right, in every State and Territory, as is
enjoyed by white citizens thereof to inherit,
purchase, lease, sell, hold, and convey real and
The defendants feel that Section 1982 applies only to the
"traditional" forms of discrimination in housing — racially
motivated refusal to sell or rent property. They argue that
Section 1982 has never been held to apply to differing
conditions of rental housing to which whites and blacks have
Section 1982 has been given broad construction by the
[T]hat § 1982 bars all racial discrimination,
private as well as public, in the sale or rental of
property, and that the statute, thus construed, is
a valid exercise of the power of Congress to
enforce the Thirteenth Amendment. (Emphasis in
Jones v. Mayer Co., 392 U.S. 409
, 88 S.Ct. 2186, 2189, 20
L.Ed.2d 1189 (1968).
The Seventh Circuit has interpreted Jones as viewing Section
1982 as a broad based instrument to be utilized in eliminating
all discrimination and the effects thereof in the ownership of
property. Clark v. Universal Builders, Inc., 501 F.2d 324, 330
(7th Cir. 1974). In so doing, they specifically rejected
limiting Section 1982 to "traditional" forms of discrimination.
The complaint alleges actions (or more properly, in-actions) by
the defendants "that exploited a situation created by
socioeconomic forces tainted by racial discrimination." Id. In
fact, in this case, "there is no difference in results between
the traditional type of discrimination and defendants'
exploitation of a discriminatory situation." Id. The plaintiffs
have clearly set out a claim under 42 U.S.C. § 1982.
Defendants argue that 42 U.S.C. § 1982 provides no remedy in
monetary damages. In Sullivan v. Little Hunting Park, Inc.,
396 U.S. 229, 90 S.Ct. 400, 24 L.Ed.2d 386 (1969), the Court held
that an action under Section 1982 encompassed the remedy of
damages. Punitive damages may also be awarded in Section 1982
actions. Lee v. Southern Home Sites Corp., 429 F.2d 290, 294
(5th Cir. 1970). See also, Wright v. Kaine Realty, 352 F. Supp. 222,
223 (N.D.Ill. 1972).
IX. COLOR OF LAW — COUNT IV
The defendants raise the same "color of law" arguments to
Count IV, wherein violations of the Equal Protection Clause,
Fifth and Fourteenth Amendments are alleged. This court finds
no merit in defendants' arguments, and would refer the parties
to the court's discussion of the same "color of law" argument
raised as to the 42 U.S.C. § 2000d claim, supra.
X. DISCRIMINATION UNDER ILLINOIS CONSTITUTION
The defendants argue that plaintiffs fail to state a claim
under Article I, § 17 of the Illinois Constitution (1970). They
make essentially the same arguments previously made regarding
the application of 42 U.S.C. § 3604.
Article I, § 17 reads:
All persons shall have the right to be free from
discrimination on the basis of race, color,
creed, national ancestry and sex in the hiring
and promotion practices of any employer or in the
sale of rental of property.
There has been little case law interpreting this section of
the Illinois Constitution. However, the transcripts of the
proceedings of the Illinois Constitutional Convention suggest
that a broad scope should be given the words to cover all
aspects of discrimination in housing. Given this broad scope,
§ 17 must surely be considered to proscribe the conduct alleged
in the complaint.
XI. REGULATORY AND MANAGEMENT AGREEMENT
Finally, the defendants allege that the plaintiffs have
failed to state a cause of action under the Regulatory
Agreement and Management Agreement. The complaint charges that
the plaintiffs were damaged when the defendants violated these
agreements. The agreements, made between the defendants and
HUD, obligate the defendants to conform their activities to
numerous federal, state, and local statutes and regulations.
The defendants argue that they are not informed of which
statute or regulation they violated, and thus the claim should
be dismissed for lack of specificity. They also claim that no
jurisdiction exists for this court to hear a claim that
"sounds in simple contract."
This court can properly exercise jurisdiction over Count VI
under the doctrine of pendent jurisdiction. United Mine Workers
v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966).
Plaintiffs are proper third party beneficiaries of the contract
between HUD and the defendants, and thus have standing to sue
for injuries resulting from alleged violations of the contract.
Upon reading Count VI, the court feels that it is sufficiently
specific to inform the defendants of what provisions of the
agreement have allegedly been violated. Quite clearly, the five
previous counts of the amended complaint set forth the laws
which the defendants allegedly violated. The contract
violations in this count arise derivatively from the previous
Accordingly, defendants' motion to dismiss is denied, except
that only equitable relief shall be available for any
violations of Title VI.
XII. MOTION FOR CLASS CERTIFICATION
This cause also comes before the court on plaintiffs' motion
for class certification. Plaintiffs have brought this action
on behalf of themselves, and, pursuant to Rule 23, Federal
Rules of Civil Procedure, on behalf of all persons similarly
The proposed plaintiff class consists of the approximately 360
tenants of Indian Trails Apartments and their families.
Rule 23 contains the essential prerequisites for maintaining
a class action. Here, plaintiff proposes a class under the
provisions of 23(b)(3).
Rule 23(a) provides that one or more members of a class may
sue or be sued on behalf of the class if:
(1) the class is so numerous that joinder of all
members is impracticable;
(2) there are questions of law or fact common to
(3) the claims or defenses of the representative
parties are typical of the claims or defenses
of the class; and
(4) the representative parties will fairly and
adequately protect the interests of the
In the instant action, these prerequisites are easily met.
Plaintiffs seek to represent a class which consists of more
than 360 tenants and their families. This is clearly a class
so numerous that joinder would be impracticable.
All issues presented in the amended complaint are common to
each member of the proposed classes — namely, whether the
defendant management practices changed to the detriment of the
tenants when the racial composition of the apartments changed
from predominantly white to predominantly black. The second
prerequisite of Rule 23 is, therefore, satisfied. Likewise, the
third prerequisite, that the claims of the representative
parties be typical of the claims of the members of the class,
is satisfied, as the claims of the representatives are
identical to the claims of every member of the proposed class.
Additionally, the fourth requirement is met in that the named
plaintiffs are the tenants and the tenant organization. Also,
their counsel are experienced in litigation of this nature.
The prerequisites of Rule 23(a) having been met, the
requirements contained in Rule 23(b)(3) must also be
Rule 23(b)(3) provides, in relevant part:
(b) An action may be maintained as a class action
if the prerequisites of subdivision (a) are
satisfied, and in addition:
(3) the court finds that the questions of law or
fact common to the members of the class
predominate over any questions affecting only
individual members, and that a class action
is superior to other available methods for
the fair and efficient adjudication of the
Quite clearly, overriding questions of fact and law common to
the members of the class predominate over any questions
affecting only individual members. Also, the class action here
is superior to other available methods for the fair and
efficient adjudication of the controversy, in that it is
unlikely any individual tenant would ever seek the relief
The requirements of Rule 23(a) and Rule 23(b)(3) having been
satisfied, plaintiffs' motion for class certification is
hereby granted. The plaintiffs shall submit to this court a
proposed form of notice that satisfies the requirements of
Plaintiffs' motion to communicate with potential members of
the plaintiff class is granted. Defense counsel shall be given
the opportunity to attend the meeting that is being
contemplated. However, after the mailed notices have all been
returned, no such opportunity shall be afforded defense