The opinion of the court was delivered by: MARVIN E. ASPEN
MARVIN E. ASPEN, District Judge:
Plaintiff Francis Mungiovi, acting pro se, brings this eight-count complaint against the Chicago Housing Authority ("CHA"), and two of its employees, Essie Smith and William Bradley. He alleges that defendants have violated his right as a public housing tenant to serve as president of his building, as well as several of his rights protected under state law. Presently before us is defendants' motion to dismiss for lack of subject matter jurisdiction. For the reasons set forth below, defendants' motion is denied and the parties are directed to file supplemental memoranda on whether plaintiff has failed to state a claim.
Since 1991 Mungiovi has been a resident of the Shields Apartments in Chicago, which are public housing units operated by the CHA for elderly and disabled tenants. According to his complaint, Mungiovi was elected "Building President of Shields Apartments" by the tenants of his building in January 1993. However, he claims that the two individual defendants, building manager Essie Smith and building janitor William Bradley, refused to allow him to perform his duties as president. For example, plaintiff claims that Smith refused to listen to tenant grievances, prohibited him from posting announcements in the building, withheld funds intended for tenant use, and obstructed access to common areas. He also alleges that in December, 1994, Smith and Bradley tore down announcements he had posted concerning a tenant grievance session, and actively discouraged tenants from attending the meeting. Mungiovi claims that the CHA failed to take action to remedy these alleged abuses, even after he repeatedly notified them of the situation. He contends that the actions of the individual defendants, and the inaction of the CHA, violate certain regulations promulgated by the Department of Housing and Urban Development ("HUD"), and are therefore actionable under 42 U.S.C. § 1983.
In addition to his federal claim, Mungiovi has asserted several state law claims against the defendants. These include claims against Bradley for assault and battery, against Smith for malicious prosecution, against both Bradley and Smith for slander, against the CHA for breach of the covenant of quiet enjoyment, and against all three defendants for harassment.
Defendants have moved to dismiss plaintiff's Section 1983 claim and the pendant state law claims for lack of subject matter jurisdiction. Smith and Bradley argue that this court lacks jurisdiction over the federal claim because they are shielded from suit by virtue of their qualified immunity. Defendant CHA argues that we have no jurisdiction because municipal corporations may only be held liable under Section 1983 for unconstitutional actions taken pursuant to an official policy or custom. All the defendants also argue that the absence of a substantial federal claim precludes us from entertaining plaintiff's pendant state law claims.
For reasons not entirely clear, defendants have couched their arguments against plaintiff's federal claim in terms of a motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1), rather than in terms of a Rule 12(b)(6) motion to dismiss for failure to state a claim. Motions brought under Rule 12(b)(1) are used to contend that the court "has no authority or competence to hear and decide the case." 5A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure: Civil 2d § 1350, at 194 (1990). By contrast, Rule 12(b)(6) motions speak to the sufficiency of the claim, and will only be granted if "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, 2 L. Ed. 2d 80 (1957); Chaney v. Suburban Bus Div. of the Regional Transp. Auth., 52 F.3d 623, 627 (7th Cir. 1995). To be sure, differentiating between these two motions becomes problematic when the elements needed to establish jurisdiction are the same as those necessary to prevail on the merits. However, as the United States Supreme Court stated in Bell v. Hood, 327 U.S. 678, 682, 66 S. Ct. 773, 90 L. Ed. 939 (1946):
Jurisdiction . . . is not defeated . . . by the possibility that the averments might fail to state a cause of action on which [plaintiff] could actually recover. For it is well settled that the failure to state a proper cause of action calls for a judgment on the merits and not a dismissal for want of jurisdiction.
Only where the alleged federal claim is immaterial and brought solely to fabricate federal jurisdiction, or is "wholly insubstantial and frivolous," may an attack on the merits of a claim be treated as one seeking dismissal for lack of jurisdiction. Id. at 682-83.
Instead, if the issue of jurisdiction is intertwined with the merits of the case, then "the district court should take jurisdiction and handle defendants' motion as a direct attack on the merits of plaintiff's case." Malak v. Associated Physicians, Inc., 784 F.2d 277, 279-80 (7th Cir. 1986); Health Cost Controls v. Skinner, 44 F.3d 535, 537 (7th Cir. 1995); 2A James W. Moore, Moore's Federal Practice P 12.07[2.-1], at 12-60 (2d ed. 1994) ("the preferable practice is to assume that jurisdiction exists and proceed to determine the merits of the claim pursuant to subdivision (b)(6) or Rule 56."). While defendants' arguments with regard to the pendant state claims are clearly jurisdictional, their attack on Mungiovi's federal claim goes to its merits. Thus, we will analyze plaintiff's complaint under Rule 12(b)(6) and provide him with the accompanying protections. See McMath v. City of Gary, Ind., 976 F.2d 1026, 1031 (7th Cir. 1992) (allegations in plaintiff's complaint are assumed true, and viewed in a light most favorable to him, when examining qualified immunity defense under Rule 12(b)(6)).
Defendant CHA argues that the complaint should be dismissed because plaintiff has not stated a claim of municipal liability under Section 1983. However, plaintiff alleges in his response to the motion to dismiss that "CHA's policies and procedures have thus failed to protect my federal rights to serve as Building President, failed to meet its federal responsibility to provide adequate tenant representation, and failed to assure majority rule to the tenants of Shields Apartments." Plaintiff's Response at 3-4. Because such an allegation of municipal liability is sufficient under Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 113 S. Ct. 1160, 1163, 122 L. Ed. 2d 517 (1993), we cannot dismiss this claim on the grounds put forward by the CHA.
As to the individual defendants, they have submitted affidavits stating that they did not know Mungiovi was the "Building President," and that they did not "violate clearly established statutory or constitutional rights of which a reasonable person would have known." See Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 73 L. Ed. 2d 396 (1982). However, because we may only consider the facts alleged in Mungiovi's complaint and his responsive papers, defendants cannot rely on these affidavits to support their motion. See McMath, 976 F.2d at 1031. Plaintiff alleges that the individual defendants knew he was the building president, and that they actively prevented him from participating in the operation of the housing unit. Such conduct, if true, should not be entitled to qualified immunity if plaintiff actually possessed the right to be building president. As discussed more fully below, we entertain serious doubts as to whether plaintiff possessed such a right. However, defendants have not squarely raised this argument in their motion, and plaintiff has only implicitly addressed it. Consequently, we decline to dismiss the complaint on the grounds of qualified immunity.
Still, we are not entirely convinced that plaintiff's complaint is free from defects. Indeed, we are disappointed that neither side has directly addressed the issue which appears to us to be of paramount importance: whether plaintiff has actually alleged that defendants violated a federal right that is enforceable under Section 1983.
Mungiovi asserts that the defendants have an obligation under 24 C.F.R. § 964 "to ensure effective tenant participation in creating a positive living environment." Plaintiff's ...