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THOMAS v. CHICAGO HOUS. AUTH.

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION


October 9, 1997

DOROTHY J. THOMAS, Plaintiff,
v.
CHICAGO HOUSING AUTHORITY, a municipal corporation, Defendant.

The opinion of the court was delivered by: BUCKLO

MEMORANDUM OPINION AND ORDER

 Plaintiff, Dorothy J. Thomas, has filed suit against the Chicago Housing Authority ("CHA"), a state housing authority. The CHA has filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). For the reasons stated below, the motion to dismiss is granted in part and denied in part.

 Background

 Ms. Thomas is a public housing tenant residing in the Cabrini Extension project, one of three projects collectively known as "Cabrini-Green." The CHA manages public housing in the City of Chicago. The CHA is subsidized by the federal government and must comply with federal regulations under the United States Housing Act. 42 U.S.C. § 1437 et seq. Ms. Thomas makes numerous allegations in her complaint. *fn1" Count I of the complaint alleges that the CHA fraudulently overcharged Ms. Thomas for rent. Count II alleges the CHA rented Ms. Thomas an unsafe and unsanitary apartment in 1990.

 Count III alleges that Ms. Thomas was assaulted by another CHA resident, but that after the assault the CHA refused to take any steps to discipline or evict her attacker. Count III further alleges a CHA security guard almost caused Ms. Thomas to be falsely arrested and that the CHA violated federal law by bringing an improper forcible entry and detainer action (eviction) against Ms. Thomas. Count IV alleges the CHA has denied Ms. Thomas access to common rooms for volunteer group meetings. Count V realleges that the CHA violated federal law by bringing an improper forcible entry and detainer action against Ms. Thomas. Count VI appears to allege the CHA is demolishing Cabrini-Green buildings in violation of federal law. Count VI also alleges that HUD and the CHA conspired to overcharge public housing residents rent. *fn2"

 Intermittently throughout Ms. Thomas' complaint she cites 42 U.S.C. §§ 1437 et. seq. ; 12 U.S.C. § 1701 et. seq. ; 42 U.S.C. §§ 1983; 42 U.S.C. §§ 1985(3); and the First, Fifth, and Fourteenth Amendments as the bases for her claims. Ms. Thomas' complaint states that she has lost income, suffered physical pain, emotional distress, mental anguish and humiliation. Ms. Thomas seeks $ 1,000,000.00 in compensatory damages, $ 5,000,000.00 in punitive damages, attorney fees, and her alleged rent overcharge.

  Count I3

 Ms. Thomas alleges that, by being charged 25% to 30% of her monthly income, she is being charged a monthly rent that exceeds the statutory limit. Ms. Thomas argues she should only have to pay 10% of her "very low income." The rent formula of the United States Housing Act is supplied by 42 U.S.C. § 1437a. It provides in part:

 

[A] family shall pay as rent for a dwelling unit assisted under this chapter...the highest of the following amounts, rounded to the nearest dollar:

 

(A) 30 per centum of the family's monthly adjusted income;

 

(B) 10 per centum of the family's monthly income; or

 

(C) if the family is receiving payments for welfare assistance from a public agency and a part of such payments, adjusted in accordance with the family's actual housing costs, is specifically designated by such agency to meet the family's housing costs, the portion of such payment which is so designated.

 42 U.S.C. § 1437a(a)(1).

 The plain language of the statute indicates that if sub-section (c) does not apply, the higher rate calculated under sub-section (a) or (b) is the maximum rent allowed. Ms. Thomas admits that her rent has been set at 25-30 percent of her adjusted income. *fn4" The rent she is paying therefore clearly falls within the guidelines provided under Section 1437a. This claim is therefore dismissed. *fn5"

 Count II

 In Count II Ms. Thomas alleges the CHA "willfully, intentionally, [or] knowingly" rented her an unsafe and unsanitary apartment. Ms. Thomas notes the existence of various problems with her apartment, including a cracked and leaking ceiling, faulty plumbing, flooding, mold-covered walls and floors, and an infestation of mice and roaches. Ms. Thomas complains that her apartment violates 42 U.S.C. §§ 1437, 1437(d)(K), 1437(d)(L)(2), and 42 U.S.C. § 1983. Section 1437, the broad policy statement of the United States Housing Act, does not imply a private cause of action or enforceable rights under Section 1983. Thomas v. Chicago Hous. Auth., 919 F. Supp. 1159, 1164 (N.D. Ill. 1996)(citations omitted). Section 1437(d)(L)(2), which sets out the terms a public housing authority lease must contain, also does not create a private right of action or enforceable rights under Section 1983. Imes v. Philadelphia Hous. Auth., 928 F. Supp. 526, 530 (E.D. Pa. 1996). Section 1437(d)(K) states that the public housing authorities must form an extensive grievance system to remedy disputes with tenants. Ms. Thomas does not allege the CHA has neglected to provide a grievance system or that the grievance system has somehow failed her. Accordingly, her claims under Section 1437 et seq. are dismissed.

 Ms. Thomas also claims her unsanitary apartment violates the Fourteenth Amendment to the Constitution. It was decided long ago, however, that the Constitution does not guarantee "access to dwellings of a particular quality...." Lindsey v. Normet, 405 U.S. 56, 74, 31 L. Ed. 2d 36, 92 S. Ct. 862 (1972). Thus, this claim will also be dismissed. *fn6" Ms. Thomas may have a cause of action under state law. But, since this action is not related to her First Amendment claim, the only claim that survives this motion, I do not have supplemental jurisdiction to hear it. 28 U.S.C. § 1367(a).

 Count III

 In Count III Ms. Thomas makes a variety of claims. She first alleges that she was physically attacked by another CHA resident, but that the CHA did not evict her attacker. Ms. Thomas cites numerous parts of Section 1437 as the basis for her claim. As noted above, Ms. Thomas may not bring a private right of action under the sections of this statute that she cites. Ms. Thomas also cites 310 ILCS 10/25(f)(1) as a basis for her complaint. This is the enabling act for public housing authorities in Illinois and does not provide a private right of action. Further, Ms. Thomas does not have standing to demand that her attacker be evicted for violating public housing regulations. Thomas, 919 F. Supp. at 1164.

 Ms. Thomas also alleges this attack violated her constitutional rights. There are three instances under 42 U.S.C. § 1983 in which a government entity may be held liable for violating the civil rights of a person: (1) there was an express policy that, when enforced, caused a constitutional violation; (2) there was a widespread practice that, although not expressly authorized, was so permanent and well settled as to constitute a custom or usage with the force of law; or (3) the alleged constitutional injury was caused by a person with final policymaking authority. Baxter by Baxter v. Vigo County Sch. Corp., 26 F.3d 728, 734-35 (7th Cir. 1994)(citations omitted). Ms. Thomas has not alleged facts regarding the attack by another CHA resident that could possibly form the basis of a claim against the CHA for municipal liability. Ms. Thomas may have a state cause of action for negligent security. But, since this claim is not related to the First Amendment claim that survives this motion, I do not have supplemental jurisdiction to hear it.

 Count III also alleges that a CHA security officer almost had Ms. Thomas falsely arrested in January, 1994. This complaint was filed in September, 1996. Thus, to the extent Ms. Thomas is arguing this event violated her constitutional rights under Section 1983, it is barred by the two-year statute of limitations. Kalimara v. Illinois Dep't of Corrections, 879 F.2d 276 (7th, Cir. 1989)(per curiam).

 Ms. Thomas also argues that she has twice been the victim of fraudulent eviction proceedings by the CHA, presumably in violation of her due process rights and the Housing Act. It appears that these eviction actions were eventually dismissed against Ms. Thomas. Ms. Thomas was never evicted, her lease never terminated, and she did not lose any of her leasehold rights. To the extent Ms. Thomas asserts a due process claim, it is dismissed. Thomas, 919 F. Supp. at 1167-68; Herring v. Chicago Hous. Auth., 850 F. Supp. 694 (N.D. Ill. 1994). *fn7"

 Count IV

 Ms. Thomas alleges in Count IV that the CHA has denied her access to common rooms for volunteer group meetings and has generally been hostile to her volunteer efforts. Ms. Thomas states that she has organized a "Children Program," "Adult Program," and "Senior citizen's program" at Cabrini-Green. Ms. Thomas claims the CHA would not allow her to use Cabrini-Green public meeting rooms and halls for group events. Ms. Thomas alleges she has even made request for meeting rooms to "upper management" of CHA, located in downtown Chicago. This request was to no avail. Ms. Thomas further claims that, as time passed, the CHA became more hostile towards her activities, attempting to restrain Ms. Thomas from using the "playlot" at Cabrini-Green for children's social programs and fundraising benefits.

 Further, Ms. Thomas alleges the CHA threatened group members with eviction if they continued their activities on federal property and that the CHA told Ms. Thomas her rent would be raised because she was making unreported income through fundraising benefits. Additionally, Ms. Thomas claims she organized a Cabrini-Green security "patrol" group, but that the CHA would not give her office space or equipment, although it had done so for other patrol groups.

 As I noted in a previous opinion concerning Ms. Thomas' claims, the First Amendment protects individuals right to speak freely and to congregate in groups to further lawful interests. Smith v. Arkansas State Highway Employees, Local 315, 441 U.S. 463, 464-66, 60 L. Ed. 2d 360, 99 S. Ct. 1826 (1979). While the state may enforce some content-neutral restrictions on time, place, and manner, it may not do so unreasonably. Perry Educ. Ass'n v. Perry Local Educ. Ass'n, 460 U.S. 37, 45-46, 74 L. Ed. 2d 794, 103 S. Ct. 948 (1983). Ms. Thomas argues the CHA is unreasonably restricting her right to use Cabrini-Green common rooms and other areas. She also claims these restrictions are being applied inequitably against her as compared to others. If these allegations are true, Ms. Thomas may be entitled to relief. Accordingly, this claim will not be dismissed.

 The CHA moves, pursuant to Federal Rule of Civil Procedure 12(e), for a more definite statement of the First Amendment claim regarding the incidents that occurred, who was involved, and what was said. I agree that the complaint is very vague concerning who was involved in the events Ms. Thomas describes and who said what. Ms. Thomas simply states she talked to Cabrini "managers," that Cabrini-Green "managers" threatened her, and that Cabrini-Green "management" was hostile towards her. Without more, the CHA cannot meaningfully reply to Ms. Thomas' complaint. The motion for a more definite statement is, therefore, granted.

 Count V

 In Count V Ms. Thomas appears to reallege her claim that she has been the victim of an attempted fraudulent eviction by CHA. As noted earlier, Ms. Thomas was never evicted, her lease never terminated, and she did not lose any of her leasehold rights. To the extent Ms. Thomas asserts a due process claim or violation of Housing Act regulations, it is dismissed. Thomas, 919 F. Supp. at 1167-68; Herring v. Chicago Hous. Auth., 850 F. Supp. 694 (N.D. Ill. 1994). *fn8"

 Count VI

 Ms. Thomas alleges in Count VI that the CHA is demolishing Cabrini-Green buildings in violation of federal law. The building Ms. Thomas resides in is not being demolished. As I noted in a previous opinion involving Ms. Thomas, she does not have standing to bring this claim. Thomas, 919 F. Supp. at 1165-66. She has suffered no injury and she may not bring this suit on behalf of those people who reside in the buildings to be demolished. *fn9"

 Mr. Thomas also alleges in Count VI a conspiracy between HUD and the CHA to overcharge rent to tenants in Cabrini-Green. Ms. Thomas believes Cabrini-Green residents should be charged ten percent of their income for rent instead of thirty percent. As was discussed in Count I, the CHA may legally charge Ms. Thomas and others thirty percent of adjusted gross income for rent. Accordingly, this claim is dismissed. *fn10"

 Punitive Damages

 Ms. Thomas requests $ 5,000,000.00 in punitive damages in Count IV of her complaint. The CHA requests the prayer for punitive damages be stricken. The CHA is a municipal entity. 310 ILCS 10/1 et seq. Municipal entities are not liable for punitive damages. City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 267, 69 L. Ed. 2d 616, 101 S. Ct. 2748 (1981). Additionally, under the Illinois "Local Governmental and Governmental Employees Tort Immunity Act," local government entities are not liable for punitive damages. 745 ILCS 10/2-102. Accordingly, Ms. Thomas' request for punitive damages in Count IV is stricken.

 Conclusion

 Ms. Thomas's complaint alleges virtually identical claims as those before this court in Ms. Thomas' previous case. For the reasons stated above, Counts I, II, III, V, and VI are dismissed with prejudice. The CHA's motion to strike punitive damages is granted as is its motion for a more definite statement on Count IV. Ms. Thomas has 45 days from the filing of this order to provide a statement explaining, to the extent she knows, who the managers were that were involved, approximate dates of the incidents, and what was said. If she fails to do so, Count IV will be dismissed with prejudice.

 ENTER ORDER:

 Elaine E. Bucklo

 United States District Judge

 Dated: October 9, 1997


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