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April 6, 1994



The opinion of the court was delivered by: JOHN A. NORDBERG

Plaintiff Beverly A. Herring, a resident of the Chicago Housing Authority's Harold Ickes Homes ("HIH"), has sued the Chicago Housing Authority ("CHA"), and several CHA officials in their official capacities: Vincent Lane, the Chairman of the CHA Board, Virginia Peoples, an Area Director of CHA for the area including HIH, Beverly Shepard, the CHA Site Manager of HIH, and Earnest Eddins, the Assistant Site Manager of HIH. Plaintiff alleged, in her Second Amended Complaint now before the Court, violations of her rights under the First Amendment, the Due Process Clause of the Fourteenth Amendment, the United States Housing Act, and her lease agreement with the CHA. The Plaintiff claims that the CHA has, or had, certain eviction policies regarding its tenant's rights of association. She claims that, as a result of these policies, Defendants attempted to terminate her tenancy, in violation of several of her constitutional and statutory rights.

 The parties filed cross-motions for summary judgment and, on May 28, 1992, the Court referred the motions to a Magistrate Judge for a Report and Recommendation. Now before the Court is that Report and Recommendation, dated April 22, 1993, in which the Magistrate Judge recommends that each motion be granted in part and denied in part. Each party has filed objections to the Report and Recommendation. Based on those objections, the Court reviews the Magistrate Judge's recommendations de novo. Fed. R. Civ. P. 72(b).


 The Magistrate Judge's Report and Recommendation sets out the factual background of this case in great detail. The Court summarizes the facts sufficient for this opinion below.

 Ms. Herring lives on the twelfth floor of a fifteen story building located at 2822 South Calumet in Chicago, Illinois. Ms. Herring's apartment is one of several buildings in a development known as the Harold Ickes Homes ("HIH"). She lived at the same location during the events at issue in this lawsuit.

 In early December 1988, the CHA conducted a "lockdown" of several of its apartment buildings, including HIH. CHA residents contested the legality of the "lockdown", filing a class action suit here in the Northern District of Illinois, Summeries v. Chicago Housing Authority, No. 88-C-10566 (N.D. Ill.). The district court eventually entered a Consent Decree resolving that litigation. The Consent Decree permitted the CHA to conduct inspections to identify and remove unauthorized occupants and to inspect the condition of the housing units, subject to the CHA's minimizing its intrusion on the rights of its residents. Pursuant to the Consent Decree, the CHA instituted a "Visitation Policy" at HIH. For a tenant to have a guest visit at a CHA apartment, the Visitation Policy required the tenant to write down in a registry the tenant's name, apartment number, and guest's name before the guest would be admitted to the building.

 Two days later, on the evening of May 3, 1990, Herring was in the lobby of her building waiting to register her fiance pursuant to the Visitation Policy. While in the lobby, Herring encountered three individuals, now known to be Terry Jue who is also known as Cheryl Jue, Fred Johnson, and someone known only as "Ariel" (collectively, the "guests"). The guests were waiting to be admitted to see another tenant of the building, Sylvester Richmond, the same Sylvester Richmond who had been arrested on May 1. When Richmond did not come down to admit the guests, Herring signed them in. At the time, Herring did not know each of the individual guests' surnames. Instead of asking each guest his or her name, Herring made up names for each, writing down Terry Fong, Fred Clock, and James Clark.

 Herring and the guests went to Richmond's apartment. A janitor recognized the guests as protestors and notified security. After looking for the guests at Herring's apartment, two security guards went to Richmond's apartment. There, the guards encountered the guests, requested them to leave the building, and escorted them out. The guards claim that they did not see Herring or any other CHA tenant present in the apartment. Herring contends that she was in the kitchen of the apartment at the time the guards arrived. Apparently, the parties now agree that Herring was there.

 On May 31, 1990, Herring received a notice informing her that her tenancy would terminate on June 21, 1990. However, she remained in her apartment through that date and on July 3, 1990 filed this lawsuit. After the filing of this case, the CHA filed, but eventually voluntarily dismissed without prejudice to reinstate, a state action seeking to evict Herring. During the pendency of the current litigation, Herring has remained in her CHA residence. The CHA has represented that it has no further intention to seek to evict Herring for the events of May 3, 1990. After refusing to accept rent from Herring for July and August of 1990, the CHA again accepted rent beginning in September 1990.

 After extensive discovery and the filing of Plaintiff's Second Amended Complaint, the parties filed the instant cross-motions for summary judgment. The Magistrate Judge, in the Report and Recommendation, recommends that the Court grant Plaintiff's Motion as to her First Amendment claim and deny her Motion as to her remaining claims. The Magistrate Judge recommends that the Court deny the Defendants' Motion as to Plaintiff's First Amendment Claim but grant their Motion as to the remaining claims. The Court now turns to the parties' objections to these recommendations.


 A. Plaintiff's Objections

 The Magistrate Judge concluded that the Plaintiff's lease was never terminated and therefore recommended that the Court grant the Defendants' Motion for Summary Judgment on Plaintiff's Due Process, United States Housing Act, and lease claims, and deny Plaintiff's motion with regard to those claims. Plaintiff objects to these recommendations, arguing that her lease was terminated. The Court agrees with the Magistrate Judge.

 Plaintiff, however, argues that her lease terminated on June 21, 1990, twenty-one days after the service of the Notice of Termination. She contends that, since the notice of termination stated that her lease would end on June 21, 1990, it did end on that date. She also asserts that the Defendants' filing of a forcible entry and detainer action "conclusively demonstrates that a property deprivation occurred", i.e., that the lease was terminated. These arguments have no merit.

 A notice of termination may end a lease when the landlord has the right to serve notice under the lease agreement or under statutory, administrative, or common law. However, a notice of termination does not automatically terminate the lease. See Hoefler v. Erickson, 331 Ill. App. 577, 73 N.E.2d 448, 451 (Ill. App. Ct. 1947) (stating that a notice to terminate tenancy "does not in so many words terminate the tenancy"). *fn1" If litigation is necessary, the landlord will usually file an action for forcible entry and detainer pursuant to the governing Illinois statutes. That action is intended to resolve the contested right to possession. One of the tenant's defenses in that action may be an asserted right to possession under the lease. If the tenant prevails in such an action, judgment finding the notice of termination invalid is entered in her favor. See 735 ILCS 5/9-114 (Smith-Hurd 1993). If so, she retains possession under the lease.

 The Plaintiff contends that under Illinois law, a landlord cannot file a forcible entry and detainer action until after a tenancy has been terminated. This argument is flawed. Actually, a landlord cannot prevail on a forcible entry and detainer action until after the landlord proves its right to possession. In this case, such proof would have to demonstrate that Plaintiff's tenancy had been lawfully terminated.

 Here, Plaintiff has successfully contested the CHA's right to terminate her tenancy. The CHA has represented to the Court that it no longer seeks to evict Herring. It cannot argue, in the future, that the lease should be terminated for the events of May, 1990. Herring has not been deprived of possession or the benefit of her lease for even a single day, she continues to be entitled to possession of her apartment under the lease, and the CHA has accepted rental payments from September 1990, waiving all rights under the notice to terminate the lease. Therefore, the Court concludes that the lease was not terminated. Accordingly, no deprivation has occurred and Plaintiff's Due Process, United States Housing Act, and lease claims must fail. Finding that there is no genuine issue of material fact and that Defendants are entitled to judgment as a matter of law, the Court grants Defendants' Motion for Summary Judgment on these claims. Plaintiff's Motion regarding these claims is denied.

 B. Defendants' Objections

 In contrast with the recommendations favoring the Defendants on each of the above noted claims, the Magistrate Judge recommends that the Court grant Plaintiff's Motion for Summary Judgment on her First Amendment Claim. The Defendants contest several elements of that conclusion.

 1. Introduction

 Plaintiff's Second Amended Complaint asserts three grounds upon which the Plaintiff claims that her rights under the First Amendment were violated: (1) her lease was terminated, (Second Am. Compl. P 25); (2) the lease, as interpreted by the CHA, is "vague, standardless, overbroad, and grants unlimited discretion to defendants, (Second Am. Compl. P 26); and, (3) her rights are violated by the Defendants' requirement that CHA tenants must inform CHA employees of the location where they and their guests are going in the building. (Second Am. Compl. P 27.)

 Despite asserting three theories supporting their recovery under the First Amendment, Plaintiff focuses her authority and evidence on only one of the three, the termination of Plaintiff's lease. Plaintiff did not address either of the other two issues in any detail. Having conclusively ruled that Plaintiff's lease ...

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