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TURNER v. CHICAGO HOUS. AUTH.

March 8, 1991

EDDIE LEE TURNER and MOZELLA DONNER, on behalf of themselves and all persons similarly situated, Plaintiffs,
v.
CHICAGO HOUSING AUTHORITY, a municipal corporation, and VINCENT LANE, individually and in his official capacity as Chairman of the Board of Commissioners of the Chicago Housing Authority, Defendants


William T. Hart, United States District Judge.


The opinion of the court was delivered by: HART

WILLIAM T. HART, UNITED STATES DISTRICT JUDGE

 May a public housing authority evict a tenant because of criminal conduct committed by the tenant's adult child on project property? Crime in public housing projects poses a major threat to the welfare of tenants and the community. However, eviction of a project tenant is tantamount to declaring the tenant homeless. This case presents a clash of vital duties and rights.

 Defendant Chicago Housing Authority ("CHA") is an Illinois municipal corporation. It receives funding under the United States Housing Act of 1937 (the "Housing Act") and provides and manages subsidized housing. Defendant Vincent Lane has been Chairman of the Board of Commissioners of CHA since July 1988. Plaintiffs sue on behalf of a class consisting of CHA leaseholders whose tenancies were terminated on or after April 23, 1988 based on the conduct of persons other than the leaseholder occurring outside the leaseholder's apartment. *fn1" The named plaintiffs are Eddie Lee Turner ("Turner") and Mozella Donner ("Donner"), both of whose CHA leases were terminated based on misconduct of a son occurring on CHA property, but not within the apartment unit of either named plaintiff. Plaintiffs allege that it violates various provisions of the Constitution; the Housing Act, 42 U.S.C. ยง 1437d(l); and plaintiffs' leases to terminate leases based on a non-household-member's conduct committed outside the leaseholder's apartment. Plaintiffs have moved for summary judgment on some of the class's claims for declaratory and injunctive relief. Plaintiffs also move for summary judgment on the question of liability on the named plaintiffs' individual claims, reserving the question of the amount of damages for further proceedings. Defendants have moved for summary judgment dismissing both the class and individual claims. *fn2"

 On a motion for summary judgment, the entire record is considered with all reasonable inferences drawn in favor of the nonmovant and all factual disputes resolved in favor of the nonmovant. Oxman v. WLS-TV, 846 F.2d 448, 452 (7th Cir. 1988); Jakubiec v. Cities Service Co., 844 F.2d 470, 471 (7th Cir. 1988). The burden of establishing a lack of any genuine issue of material fact rests on the movant. Id. at 473. The nonmovant, however, must make a showing sufficient to establish an essential element for which it will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). In such instances, the movant need not provide affidavits or deposition testimony showing the nonexistence of these essential elements. Id. at 324. Also, it is not sufficient to show evidence of purportedly disputed facts if those facts are not plausible in light of the entire record. Collins v. Associated Pathologists, Ltd., 844 F.2d 473, 476-77 (7th Cir.), cert. denied, 488 U.S. 852, 102 L. Ed. 2d 110, 109 S. Ct. 137 (1988). Additionally, facts must be supported by evidence that would be admissible if presented at trial. Fed. R. Civ. P. 56(e); Randle v. LaSalle Telecommunications, Inc., 876 F.2d 563, 570 n. 4 (7th Cir. 1989). Any documents submitted must be properly authenticated. See Zayre Corp. v. S.M. & R. Co., 882 F.2d 1145, 1149-50 (7th Cir. 1989).

 The following facts are uncontested. See Final Pretrial Order Attachment A. *fn3" Turner resides at 2450 West Monroe Street, Apartment 108 in Chicago. This apartment is in a CHA development known as Rockwell Gardens. Turner has four children, including David, who was born in 1966. Turner has lived at 2450 West Monroe since 1974, but lived in Apartment 207 until June 1982. She entered into a lease agreement with CHA in 1976. As of 1983, Turner listed all four of her children as authorized occupants of her apartment. From sometime in 1983 until May 15, 1988, David was incarcerated. From 1984 through 1989, David was not included among the "authorized occupants" listed on Turner's applications. David is acquainted with people who reside in Rockwell Gardens, including friends and relatives. On May 20, 1989, David was arrested by the Chicago Police while on CHA property at Rockwell Gardens. He was arrested outside the building located at 117 South Rockwell, not at the building containing his mother's apartment. *fn4" On the arrest report for this incident, Turner's address is listed as both 2450 West Monroe and 139 North Lorel. The arrest report sparked a review by CHA as to who was authorized to live in Turner's apartment. On June 27, 1990, CHA served Turner with a Notice of Termination of Tenancy. On July 31, 1990, a state court eviction action against Turner was dismissed without prejudice.

 Donner resides at 220 East 63rd Street, Apartment 1403 in Chicago. This apartment is in a CHA development known as Washington Park Homes. Donner has four children, including Carl, who was born in 1964. Donner has lived in the same apartment since 1972. Her current lease was signed in 1976. From 1972 until sometime in 1983, Carl was listed on Donner's applications for continued occupancy as an authorized occupant. Since then, he has not been listed as an authorized occupant. Carl is acquainted with a number of people, other than his mother, who live in Washington Park Homes. On December 10, 1988, Carl was arrested by Chicago Police in the parking lot at 220 East 63rd Street. The arrest was for unlawful possession of a controlled substance. The arrest report for this incident lists Donner's apartment as Carl's address. Donner was subsequently called into an interview with Washington Park staff where she stated Carl did not reside with her. She was told eviction proceedings would begin if she could not provide evidence that Carl lived elsewhere. On April 4, 1989, she provided a photocopy of an Illinois identification card issued the previous day that showed Carl's address as 6127 South Indiana Avenue in Chicago. On June 8, 1989, CHA served Donner with a Notice of Termination of Tenancy. On July 31, 1990, a state court eviction action against Donner was dismissed without prejudice.

 Although not contained in the pretrial order's agreed statement of uncontested facts, there are also other facts over which the parties have no disagreement. There is no disagreement as to the language of the leases applicable to each plaintiff. The leases include the following language in para. 9(k): "The Tenant shall . . . (k) conduct himself and cause other persons who are on the premises with his consent to conduct themselves in a manner which will not disturb his neighbor's peaceful enjoyment of their accommodations and will be conducive to maintaining the development in a decent, safe and sanitary condition." On May 23, 1990, David was arrested for possession of a weapon and a controlled substance. *fn5" He had previously pleaded guilty to possessing a controlled substance with intent to deliver. Turner's notice of termination states she created a threat to the health and safety of others in that David, an "unauthorized occupant and/or guest in" Turner's apartment, possessed PCP and a.32 caliber revolver on May 20, 1989 while on CHA property at 117 South Rockwell. Donner's notice of termination states she created and or maintained a threat to the health and safety of others in that Carl, "authorize [sic] quest [sic] of leaseholder, Mozella Donner, did have in his possession at 220 E. 63rd Street, C.H.A. property a controlled substance. (cocaine)[.]"

 Defendants contend that there is evidence that David and Carl each resided in his respective mother's apartment as of the time of his arrest. While there is sufficient evidence to raise a factual dispute as to David, there is no evidence to raise a fact dispute as to whether Carl was residing with his mother at the time of his arrest. Defendants primarily rely upon police reports which give an address for each of the sons that are the same as the mother's address. It is doubtful that the police reports could be used as evidence of where David or Carl resided. *fn6" There is no supporting affidavit from any of the arresting officers to show that David or Carl actually said they resided at the addresses listed on the reports. At their depositions, both sons denied telling the arresting officers that they resided at those addresses at the time of their arrests. Carl testified that he only told the police that his mother lived at the address that was put on the report. Carl and David each testified that he lived at an address other than his mother's apartment. Each mother also testified that her son did not reside with her. There are also a number of other witnesses who testified either that the son did not reside with the mother or that the son lived at another address. Defendants do not present testimony nor an affidavit from any person stating that either of the sons lived with his mother. With respect to David Turner, however, plaintiffs admit he visited his mother's apartment frequently; that phone calls for him were received daily; *fn7" that he occasionally slept at his mother's apartment; that he received some mail there; and that friends visited him there. Turner also admitted at her deposition that David occasionally told people that her address was his own. *fn8" On the evidence presented, there is a material issue of fact as to whether David Turner lived with his mother at the time of his arrest. As for Carl Donner, there is no evidence to show he resided with his mother nor even that he frequently visited her. On the facts presented to this court, the trier of fact could only find that, at the time of his arrest, Carl resided elsewhere than at his mother's apartment.

 Although the evidence is inconclusive as to where David resided, plaintiffs do concede at least the following regarding David. From the time he was released from prison in 1988 until August 1989, David visited his mother three to four times a week. In August 1989, he began visiting for about a half hour every day because Turner was babysitting for David's daughter. He also stayed overnight at Turner's apartment approximately twice a month. David was at Turner's apartment the day he was arrested, but there is no evidence presented to show that he was there shortly before being arrested. Turner testified David was at her apartment earlier in the day on the date David was arrested, but not shortly before he was arrested. David testified that, at the time of his arrest, he had been visiting his nephew, who resides at 117 South Rockwell. However, to the extent there is a factual dispute as to his actual residence, there is sufficient evidence to also create a factual dispute as to whether David was at his mother's apartment before being arrested.

 As for Carl, it is conceded that he visited his mother on occasion, but there is no evidence as to how frequently that may have been. Donner testified that Carl did not visit her on the date he was arrested and that he had not visited her since Thanksgiving, approximately two weeks earlier. Defendants, however, point to the circumstantial evidence that Carl was arrested in the parking lot of the building where his mother lives. Although, Carl knows other people who reside in the building, the trier of fact could conclude Carl visited his mother on the day he was arrested.

 On motions for summary judgment, factual disputes are resolved in favor of nonmovants. For purposes of plaintiffs' motions for summary judgment, it must be assumed David resided with his mother and that he was there shortly before his arrest. It would also be assumed that Carl did not reside with his mother, but that he visited her shortly before his arrest. For purposes of defendants' motion for summary judgment, though, the disputed facts are otherwise resolved. On defendants' motion, it is assumed David did not reside with his mother and that he visited his nephew, not his mother, prior to being arrested. It is also assumed that Carl did not live with his mother and that he had not visited her for two weeks prior to his arrest.

 The parties disagree as to what CHA's general policies are as to termination of leases based on the conduct of persons who are not occupants of the leaseholder's unit. Plaintiffs contend that defendants have the following policies:

 
CHA has a policy pursuant to which a CHA leaseholder is responsible for his or her guests and visitors as long as they are on CHA property, even if the guest leaves the CHA property and later comes ...

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