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ROSS v. MIDLAND MANAGEMENT COMPANY

July 31, 2003

DREDIA ROSS, INDIVIDUALLY AND AS PARENT, GUARDIAN AND NEXT FRIEND OF JOSHUA, GARRIET, AND CHELSEY ROSS, AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED PLAINTIFFS,
v.
MIDLAND MANAGEMENT COMPANY, WEST SUBURBAN BANK OF LOMBARD, AND KENNETH RINGBLOOM, DEFENDANTS



The opinion of the court was delivered by: Wayne Andersen, District Judge

MEMORANDUM. OPINION AND ORDER

This case is before the Court on the motion of defendants Midland Management Company, West Suburban Bank of Lombard and Kenneth Ringbloom to dismiss the plaintiff's complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). For the following reasons, the motion to dismiss is granted in part and denied in part.

BACKGROUND

Plaintiff Dredia Ross is currently a tenant at 1360 Fourth Street ("Harbor Village Apartments"), Aurora, Illinois, which is owned by Defendant West Suburban Bank of Lombard as Trustee. The Harbor Village Apartments are populated mostly by low-income African-American females with children. The apartment complex is operated by Defendant Midland Management Company ("Midland"), an Illinois corporation that receives federal funds from the United States Department of Housing and Urban Development ("HUD") in connection with [ Page 2]

providing assisted low rent housing. Prior to and since about 1990, Plaintiff has complained to the Defendants about the unsafe conditions in her unit including such things as poor air quality, mold accumulation and unclean water filtration. Plaintiff alleges that Defendants were aware of the complaints and had the ability to remedy the problems but intentionally refused to address her concerns. In so doing, Ross asserts that the Defendants violated the United States Housing Act of 1937 ("USHA"), the Fair Housing Act ("FHA"), 42 U.S.C. § 2000d of the Civil Rights Act of 1964 ("Title VI") and 42 U.S.C. § 1982 (Section 1982).

On November 12, 2002, Plaintiff filed a complaint asserting seven counts: 1) violation of federal civil rights under the FHA, USHA, Title VI and Section 1982; 2) negligence; 3) preliminary injunctive relief from unlawful discrimination and destruction of evidence; 4) willful and wanton conduct; 5) nuisance; 6) abnormally dangerous and ultra-hazardous activity; and 7) retaliatory eviction. In response, the Defendants, on December 23, 2002, filed a motion to dismiss on two grounds. Primarily, Defendants allege that the Plaintiff has failed to establish subject matter jurisdiction because the federal statutes relied upon do not provide a private right of action or a federally enforceable warranty of habitability. Because the Defendants contend there is no subject matter jurisdiction, they also request that the Court decline to exercise supplemental jurisdiction and dismiss the state law claims of negligence, willful and wanton conduct and nuisance. Secondly, Defendants assert that Plaintiff has failed to state claims for a violation of federal civil rights, preliminary injunctive relief, abnormally dangerous and ultra hazardous activity and retaliatory eviction. In conjunction with this allegation, the Defendants also assert that the statute of limitations bars the Plaintiff from bringing the action. [ Page 3]

DISCUSSION

I. Standard of Review

In ruling on a motion to dismiss, the Court must accept all factual allegations in the complaint as true and draw all inferences in favor of the plaintiff. Szumny v. Am. Gen. Fin., Inc., 246 F.3d 1065, 1067 (7th Cir. 2001). The purpose of a motion to dismiss is not to decide the merits of the challenged claims but to test the sufficiency of the complaint. Weiler v. Household Fin. Corp., 101 F.3d 519, 524 n, 1 (7th Cir. 1996). A court will grant a motion to dismiss only if it is impossible for the plaintiff to prevail under any set of facts that could be proven consistent with the allegations. Forseth v. Village of Sussex, 199 F.3d 363, 368 (7th Cir. 2000).

II. Motion to Dismiss for Lack of Subject Matter Jurisdiction

Whether this Court has subject matter jurisdiction over the present case depends on whether federal question jurisdiction exists. Courts may assert subject matter jurisdiction over cases "arising under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331. The Plaintiffs complaint satisfies this requirement because, even though the USHA and FHA do not provide a private cause of action regarding the maintenance of apartment units, see infra, Section 1982 and Title VI do grant such a right. As a result, subject matter jurisdiction is established and the Defendants* motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1) is denied. However, the case may only proceed in accordance with Section 1982 and Title VI. Because the USHA and FHA do not create private rights of action to ensure the habitability of apartments, the Plaintiff cannot base her allegations on these two statutes. [ Page 4]

A. 42 U.S.C. § 1982

Section 1982 provides that all citizens shall "have the same right . . . as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property." 42 U.S.C, § 1982. Essentially, the statute bars all racial discrimination in connection with the sale and rental of property. Jones v. Alfred Mayer Co., 392 U.S. 409, 413, 88 S.Ct. 2186 (1968). Defendants claim that Section 1982 applies only to racially motivated refusals to sell or rent and was not intended to provide individuals with an action to remedy inequities in housing conditions. Contrary to this argument, however, the Seventh Circuit has interpreted Jones to mean that Section 1982 should be utilized as a broad based instrument to eliminate all racial discrimination that effects the ownership of property. Clark v. Universal Builders, Inc., 501 F.2d 324, 330 (7th Cir. 1974). In City of Memphis v. Greene, 451 U.S. 100, 120, 101 S.Ct 1584 (1981), the Supreme Court affirmed this notion by holding that Section 1982 is a broad statute aimed at protecting the enforceability of property interests acquired by black citizens and their right to use the property on an equal basis with whites.

The Plaintiff alleges that the Defendants intentionally refused to maintain a safe and sanitary dwelling because of her race. (Complt. at ¶ 31.) These alleged actions are within the scope of Section 1982 because courts have construed the statute broadly and rejected limiting it merely to the sale and rental of property. See, e.g., Jones, 392 U.S. at 413; Clark, 501 F.2d at 330. Courts, as discussed in Greene, want to protect black citizens and create a right of action not only with respect to the purchase of property but also with respect to the use of property. Alleged inadequate maintenance of the apartment unit because of the Plaintiffs race, in the form [ Page 5]

of mold accumulation and water infiltration, clearly falls within these broad protections. As a result, we find that Section 1982 grants a private right of action and allows a claim to be brought alleging ...


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