" For example, according to Defendant Peoples, it was "not uncommon" for a resident to sign in a person seeking to enter the building without being invited, permitting that person unaccompanied access to the building. (Pl.'s Statement of Material Facts, Ex. F. at 56, 63-64.)
Despite the "not uncommon" nature of Herring's alleged violation, Defendants have not provided the Court with evidence of a single lease termination based on that conduct. In fact, at her deposition, Peoples could recall only a total of two tenants, other than Herring, whose tenancies were terminated due to the tenants' violations of the Visitation Policy. (Pl.'s Statement of Material Facts, Ex. F. at 73-74.) Both of those tenants, Ms. Grace King and Ms. Sheila Fason, saw their tenancies terminated for their refusals to present their IDs and for being "generally uncooperative to the Development entrance procedure." (Pl.'s Statement of Material Facts, Ex. XYZ.) King and Fason were issued notices of termination only after persistence in their violations, and "in spite of repeated counselling." (Pl.'s Statement of Material Facts, Ex. XYZ.)
In contrast, Herring was never personally counselled before her termination notice was issued.
Furthermore, when asked if Herring's tenancy would have been terminated if the people she had signed in had not been protestors, Defendant Peoples responded with "I cannot say." (Defs.' Resp. to Pl.'s Statement of Material Facts, Ex. V. at 151.) Such evidence is hardly enough to carry a burden based on the "preponderance of the evidence."
The evidence submitted indicates that despite the fact that "serious" violations like that now attributed to Herring are "not uncommon", there have been no notices of termination, aside from Herring's, issued for that conduct. Whether other notices were issued but not submitted as evidence, the Court does not know. As the burden of submission of such evidence was clearly the Defendants', they cannot create a material issue of fact out of the absence of such evidence.
Given the evidence of retaliation against Herring, the fact that Herring did not actually commit a "serious" violation of her lease, and the Defendants' failure to provide the Court with evidence that a notice of termination would normally be issued in the circumstances as explained by the Defendants, the Court concludes that the Defendants have failed put forth sufficient evidence to create a genuine issue a material fact over their claim that the notice of termination would have been issued even in the absence of the protected conduct. Accordingly, the Court overrules Defendants' objection to the Magistrate Judge's Report and Recommendation with regard to this issue. The Magistrate Judge correctly concluded, albeit on somewhat different, and less specific, reasoning, that at least some of the Defendants violated Herring's First Amendment right to freedom of association by issuing the notice of termination.
The Court now turns to the remaining issues of responsibility for the violation and damages.
Plaintiffs' Complaint does not specify whether the Plaintiff has sued the individual Defendants in their individual capacities, in their official capacities, or both. Unless a plaintiff expressly indicates that a defendant is being sued as an individual, courts should construe an allegation that a defendant was acting under color of state law as a suit against that defendant in his official capacity only.
Yeksigian v. Nappi, 900 F.2d 101, 104 (7th Cir. 1990). Since Plaintiffs fail to allege that the Defendants are being sued individually, the Court finds that they are sued only in their official capacities.
As a result, the individual Defendants remain in this case only as nominal Defendants, the CHA is the real party in interest since it will be liable for any damages recovered. See Hill v. Shelander, 924 F.2d 1370, 1372-73 (7th Cir. 1991) (indicating that the municipality is the real party in interest in an official capacity suit). Thus, a suit against the Defendants in their official capacities is the legal equivalent of a suit against the CHA.
The CHA is a municipal corporation organized under the Illinois Housing Authorities Act, Ill. Ann. Stat. ch. 67 1/2, paras. 1-29(e) (Smith-Hurd 1989). In order to satisfy the requirements of an official capacity section 1983 action, or an 1983 action against a municipality, a plaintiff must demonstrate that the plaintiff's constitutional rights were violated, under color of law, as a result of a municipality's "policy or custom". See Monell v. Department of Social Servs., 436 U.S. 658, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978).
There are several ways that a plaintiff may attempt to establish "policy or custom" for the purpose of imposing liability on a municipality. See generally Erwin Chemerinsky, Federal Jurisdiction § 8.5.2. (1989) (stating that there are five ways to demonstrate "policy or custom"). At issue here is whether the CHA had either an express or implied policy of terminating, or attempting to terminate, the leases of those tenants who associated with protestors. In the opinion of the Court, there is a genuine issue of material fact regarding the existence of any such policy. In this regard, the Court disagrees with the Report and Recommendation of the Magistrate Judge.
Here, Plaintiff might attempt to prove the existence of a policy or custom either through the acts, or knowing inaction, of the CHA's legislative body, its board, see Auriemma v. Rice, 957 F.2d 397, 399 (7th Cir. 1992) (noting that a policy making body's knowing acquiescence in an officer or employee's conduct may constitute "custom" "with the force of legislation"), or through the acts of a "Final Policy Maker", see Pembaur v. City of Cincinnati, 475 U.S. 469, 89 L. Ed. 2d 452, 106 S. Ct. 1292 (1986). In the opinion of the Court, Plaintiff is not entitled to judgment on either theory at this time.
With respect to the acts of the CHA's legislative body, the Magistrate Judge relies on three types of evidence to conclude that the CHA had a policy of retaliating against residents that associated with protestors: (1) a policy memorandum written by Defendant Lane and evidence about the implementation of the policy asserted therein; (2) the affidavit of a former CHA security guard, Alonza Dukes; and (3) the Notice of Termination.
Defendant Lane apparently issued a memorandum on May 3, 1990 (the "Lane Memo").
The effect of the Lane Memo is inconclusive as to the policy issue here at issue, i.e. the existence of a policy of retaliation against tenants for their association with protestors. The Memo states that the CHA Police and security staff had been instructed to prevent members of the Revolutionary Communist Party and the Campaign, and those associated with them, from accessing CHA property.
Despite the Lane Memo's express statement that the orders contained therein had been effective as of May 2, 1990, the Defendants contend that the stated policy on the memo was never implemented. Whether the Memo went into effect or not remains at issue. Moreover, there is scant evidence linking the Lane Memo, or Lane himself, to the decision to terminate Herring's lease or to any policy of terminating tenant's leases in retaliation for associating with protestors.
While implementation of the policies contained in the Lane Memo might be construed to violate Herring's rights or the rights of certain protestors, none of the parties has pursued that argument in evaluating the Magistrate Judge's Report and Recommendation.
Instead, the parties have focused on the degree to which the Lane Memo is evidence of the implementation of a policy of retaliation against CHA residents that associate with protestors. Although the Lane Memo and other evidence relating to it are circumstantial evidence of a policy of retaliation, that evidence is insufficient support for summary judgment.
The only direct evidence of a policy of retaliating against residents who associate with protestors is the affidavit of Alonza F. Dukes. Dukes was working as a security officer for the CHA on May 3, 1990. Dukes claims that prior to that evening he was given the Lane Memo and other orders stating that "any tenant who associated with or signed-in protestors would jeopardize her lease." Dukes also claims that he spoke with B. J. Davis (Barbara J. Davis) of CHA's security office to confirm the orders. Dukes states that:
B. J. Davis confirmed to me that we were to report any time any tenant associated with or signed-in protestors because CHA's policy was that any tenant who associated with or signed in protestors jeopardized her lease.
(Pl.'s Statement of Material Facts, Ex. Q. P 12.) Dukes also states that:
It is and has always been my understanding of the CHA policy as stated in Exhibit B [the Lane Memo] and clarified by other documents that leaseholders who associated with or signed-in protestors jeopardized their tenancies.
((Pl.'s Statement of Material Facts, Ex. Q. P 13.) In addition, the Plaintiff states that on May 4, she passed Davis in the lobby of her building and was told by Davis that she had violated CHA Policy by signing in protestors. (Pl.'s Statement of Material Facts, Ex. A. at 48-50.) These statements raise the issue of a policy of retaliation. However, the Affidavit of Barbara J. Davis directly contradicts Dukes's Affidavit. Davis states that no policy of retaliation existed, (Defs.' Resp. to Pl.'s Statement of Material Facts, Ex. AA. P 5), and that she did not speak with Dukes on the night in question, (Defs.' Resp. to Pl.'s Statement of Material Facts, Ex. AA P 6). Therefore, like the Lane Memo, the Dukes Affidavit is insufficient evidence to support summary judgment. Plaintiff's statement is similarly insufficient.
Lastly, the Report and Recommendation relies on Herring's Notice of Termination. As discussed above, the Notice clearly indicates that the reason, or one of the reasons, for its issuance was Herring's association with protestors. However, the Notice is not conclusive evidence that Notice was issued pursuant to CHA policy. In the opinion of the Court, the Notice might be read either as a statement that both reasons given therein, that Herring provided false information at the sign-in and that Herring aided and abetted a "subversive meeting", constituted violations of CHA policies, or as a statement that only the first reason violated CHA policies. Since either reading is reasonable, the Court concludes that this issue must be resolved by the finder of fact.
Plaintiff might also attempt to show that any of the individual Defendants was a "final policy maker" and that such a person's acts constituted CHA policy. The best candidate for a "final policy maker" is Defendant Lane. To be a "final policy maker", an official must actually make municipal policy, rather than just carry it out. Whether Lane is a "final policy maker" remains an open question. While the Defendants have admitted that he was responsible for directing and implementing CHA policy during May of 1990, (Defs.' Resp. to Pl.'s Statement of Material Facts P 9), it is unclear whether Lane performs this function solely as an executive or if he has the equivalent of legislative authority as required in Auriemma v. Rice, 957 F.2d 397 (7th Cir. 1992). Although the record is somewhat vague on the degree to which Lane reports to the other members of the CHA board, it does seem that Lane has the authority to act for the board and to make its policy. In contrast, it is apparent that Defendants Peoples, Shepard, and Eddins all serve solely as "executors" of policy and therefore none can provide the Defendants with the needed "final policy maker." See Auriemma v. Rice, 957 F.2d at 400 (explaining that an executive is not necessarily a "final policy maker" even if the executive is the final decision maker on a particular action; to be a "final policy maker", an executive having final decision authority must generate, not merely execute, the municipality's policy).
Even if the Court were to assume that Lane is a "final policy maker" wielding legislative authority, Plaintiff has failed to demonstrate sufficiently that Lane took any action or made any decision that resulted in her constitutional injury. As indicated above, there is a genuine issue of material fact regarding the effect of the Lane Memo on the CHA officials' decision to serve Herring with a notice of termination. Since there is circumstantial evidence of Lane's actual involvement, and the use of his memo, in the serving of the notice of termination, the Defendants are not entitled to judgment as a matter of law.
Accordingly, the Defendants' objection to the Report and Recommendation on the issue of municipality liability is sustained. In the opinion of the Court, there exists a genuine issue of material fact with respect to whether Herring's Notice and the reasons stated therein were served on Herring pursuant to CHA policy. On this record, neither party is entitled to judgment as a matter of law on this issue.
With respect to all of Defendants' claims, there is no evidence in the record indicating a risk that in the future the Defendants will repeat the actions complained of in this case. Accordingly, the Court finds that Plaintiff is not entitled to any declaratory or injunctive relief. However, given that the Court finds, in this decision, that Herring's Notice of Termination was issued in violation of her First Amendment right of association, the Court holds that the Notice of Termination was invalid. In addition, by accepting rental payments from Herring, the CHA has waived any right to proceed against her arising out of the events leading to this lawsuit. Therefore, Herring need not fear being evicted on the subject matter of this lawsuit.
With respect to Herring's claim for damages based on the violation of her First Amendment rights, several issues remain open. As indicated above, Plaintiff has proven that her rights were violated but she has failed to prove, as a matter of law, that the violation resulted from municipal policy and custom. Since the Plaintiff has failed to demonstrate that any Defendant is individually responsible for damages, Plaintiff is not entitled to a damage award at this time.
Should Plaintiff later demonstrate that her rights were violated by municipal policy and custom, she may be entitled to compensatory damages. These damages may include out-of-pocket loss and other monetary harms, and such injuries as impairment of reputation, personal humiliation, and mental anguish and suffering. However, the extent of Plaintiff's damages, if any, remains to be demonstrated. Since May 3, 1990, Herring has not been interfered with in any way by the CHA with respect to the signing in of or visitation by her guests. (Pl.'s Am. Resps. to Defs.' Request for Admission P 46.) From May 3, 1990 to the present, Herring did not consult with any psychologist, psychiatrist or any other mental health care practitioner. (Pl.'s Am. Resps. to Defs.' Request for Admission P 48.) Plaintiff has made no other evidentiary showing regarding any element of damages. Because the damage issues in this case, including the issue of punitive damages against a municipality, have not been properly briefed to the Court, and because the Court's holding still leaves several liability issues unresolved, those issues must be resolved at a later date.
Each Motion for Summary Judgment is granted in part and denied in part. Plaintiff is not entitled to recover on her due process, United States Housing Act, and lease claims. With regard to those claims, Defendants' Motion for Summary Judgment is granted; Plaintiff's Motion is denied. With respect to Plaintiff's First Amendment claim, Plaintiff has proven that her right of association under the First Amendment was violated. With respect to that issue, Plaintiff's Motion for Summary Judgment is granted and Defendants' Motion is denied. However, with respect to the issues of the CHA's liability and damages, both parties' motions are denied without prejudice. On those issues, at this time, neither party is entitled to judgment as a matter of law.
JOHN A. NORDBERG
United States District Judge
DATED: April 6, 1994