United States District Court, N.D. Illinois
October 14, 2004.
NONA FARRAR, Plaintiff,
MUHAMMAD ELDIBANY defendant in his individual and official capacity; et al., Defendants.
The opinion of the court was delivered by: JAMES MORAN, Senior District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff Nona Farrar brought this action against her landlord,
Muhammad Eldibany; his company, Drexel Courts LLC; the property
management company that he employs, Preferred Hyde Park
Properties (Preferred Properties); its employee, Ann Majoric; the
City of Chicago; and unknown city building inspectors.
Plaintiff's eleven-count "Second Further Amended Complaint"
(complaint) alleges defendants denied her Constitutional rights,
violated federal law, and committed a variety of torts.
Plaintiff's allegations arise out of a dispute with her landlord
over a lack of heat and hot water in her apartment. In three
separate motions, all defendants have moved to dismiss
plaintiff's claims. Defendants' motions are granted.
The following facts, taken from plaintiff's complaint, are, for
purposes of this motion, accepted as true. During the years that
plaintiff has lived in one of Eldibany's apartment buildings she
has complained to her landlord on numerous occasions that her
apartment was without heat on cold days. In November 2003,
Preferred Properties began to manage the building where plaintiff
resides. Sometime thereafter, plaintiff contacted Preferred
Properties to complain that she had no heat. Plaintiff spoke with Majoric,
who allegedly doubted that plaintiff did not have heat and
discouraged her from lodging further complaints. When plaintiff
threatened to deduct money from her rent payment due to the lack
of heat, Majoric warned that plaintiff would be evicted if she
didn't pay the full rent. Plaintiff later learned that she did
not have heat because the building's boiler was unable to heat
the whole building and was being replaced. Due to the boiler
replacement, plaintiff claims she was without heat for three days
and without hot water for four days.
Plaintiff alleges that she called building inspectors from the
City of Chicago to complain about her lack of heat both before
and after Preferred Properties began to manage her building. She
states that one inspector responded to her complaint and
dismissed it, even though she was not home to let him inspect her
apartment. Another inspector failed to cite any of the defendants
for a violation, even though she showed the inspector a building
notice informing the tenants that the boiler was being replaced
and that as a result there would be no heat for three days.
Plaintiff alleges that before she signed her current lease, she
and Eldibany agreed that she would repay a debt of $700
(presumably unpaid rent) when she could afford it. In February
2004, after her complaints regarding her lack of heat and hot
water, plaintiff received a letter from a debt collector seeking
payment of the $700 she owed. Plaintiff also received a five-day
notice that set her rent at $980 a month, even though her lease
fixed rent at $630 a month until 2005. Three months later, on May
12, 2004, plaintiff filed her initial complaint against
defendants in federal court.
DISCUSSION A Federal Rule of Civil Procedure 12(b)(6) motion to dismiss
tests the sufficiency of the complaint, not the merits of the
case. Triad Assocs., Inc. v. Chicago Hous, Auth., 892 F.2d 583,
586 (7th Cir. 1989). In deciding a motion to dismiss, the
court must assume the truth of all well-pleaded allegations,
making all inferences in the plaintiff's favor. Sidney S. Arst
Co. v. Pipefitters Welfare Educ. Fund, 25 F.3d 417, 420 (7th
Cir. 1994). The court should dismiss a claim only if it appears
"beyond doubt that 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 (1957). Despite the limited
grounds for dismissal, "District judges have ample authority to
dismiss frivolous or transparently defective suits spontaneously,
and thus save everyone time and legal expense." Hoskins v.
Poelstra, 320 F.3d 761, 763 (7th Cir. 2003).
Plaintiff has brought a number of claims against various
defendants for violation of her constitutional rights under the
First Amendment (Counts VIII and IX) and Fourteenth Amendment
(Counts I, IX, and X). She has also alleged that certain
defendants conspired to deny her these constitutional rights
(Count II). These claims fail because "the conduct of private
parties lies beyond the Constitution's scope in most instances."
Morfin v. City of East Chicago, 349 F.3d 989, 1003 (7th
Cir. 2003). A private citizen is not subject to liability for
constitutional violations, unless his alleged violation stems
from the "exercise of a right or privilege having its source in
state authority" and the private party can be described as a
state actor. Id. Plaintiff's complaint, even if accepted as
true, fails to establish either of these conditions for the
constitutional claims against defendants.
Plaintiff's claims against Eldibany, Drexel Courts, Preferred
Properties, and Majoric, stem from the ownership and management
of rental property. Defendants' management of the property is not a right or privilege that rests in state
authority. Governmental authority is not necessary to replace a
boiler, negotiate with tenants, or demand rent payments.
Plaintiff attempts to establish a nexus between Eldibany, Drexel
Courts and the state by alleging that her landlord was receiving
government funds for the apartment building. Governmental funding
does not transform the conduct of private parties into state
action. See Wade v. Byles, 83 F.3d 902 (7th Cir. 1996)
(affirming that a private security guard's shooting of the
plaintiff was not a state action, even though the Chicago Housing
Authority contracted the guard's employer to secure public
housing lobbies). Nor can any of these defendants be reasonably
described as state actors. The Seventh Circuit has identified two
circumstances under which a private party is held responsible as
a state actor: 1) "where the state effectively directs or
controls the actions of a private party" to the extent that the
state is responsible for his decisions, or 2) where "the state
delegates a public function to a private entity." Payton v.
Rush-Presbyterian-St. Luke's Medical Center, 184 F.3d 623, 628
(7th Cir. 1999). Neither circumstance applies to these
Plaintiff brings her equal protection (Count I), conspiracy
(Count II), First Amendment retaliation (Count VIII), and
Fourteenth Amendment (Count X) claims against unidentified City
of Chicago building inspectors as well. She also brings Counts
VIII and X against the City of Chicago. While the building
inspectors are state actors, see New Jersey v. T.L.O.,
469 U.S. 325, 335 (1985), plaintiff's claims against them still fail.
She alleges that the unknown building inspectors failed to
sufficiently respond to her claims regarding a lack of heat,
treating her differently from others similarly situated. To state
an equal protection violation against a state actor plaintiff
must allege discrimination based on her membership in a
particular protected class. See Hernandez v. Joliet Police Department,
197 F.3d 256, 261-62 (7th Cir. 1999). Plaintiff does not allege that
the building inspectors treated her differently due to her
membership in a certain group, racial or otherwise. Rather, as
she makes clear in her Monell claim (Count III) against the
City of Chicago, which will be discussed below, she alleges that
inadequate inspections were, in effect, city policy. Plaintiff
has failed to state an equal protection claim against the
Likewise, her conspiracy claim against the inspectors also
fails. For the building inspectors to be liable for conspiracy,
plaintiff must establish that they conspired with one another or
with others to violate her civil rights. See Williams v.
Seniff, 342 F.3d 774 (7th Cir. 2003); 42 U.S.C. § 1985.
Though plaintiff presumptively states that defendants
"conspire[d] to violate plaintiff's constitutional rights," she
does not identify any constitutional violations. As explained
above, plaintiff has not alleged an equal protection violation
against the inspectors, nor has she alleged a conspiracy to
commit such a violation. Read most liberally, plaintiff's
complaint alleges that the inspectors conspired with other
defendants to deprive her of heat and hot water. Access to heat
and hot water is not a constitutional right.
Plaintiff's claims against the City of Chicago and its building
inspectors for violating her First and Fourteenth Amendment
rights also fail. Count VIII alleges that she received a
collection letter, a five-day notice, and was locked out of the
laundry room as a result of her complaints regarding her lack of
heat. Plaintiff does not claim that the building inspectors or
the city were involved in these actions. Her only allegation is
that the building inspectors did not properly investigate her
complaints. Count X alleges that plaintiff did not receive a new
key after the locks were changed on her building's laundry room.
She maintains this was a violation of her Fourteenth Amendment rights and seeks
compensatory and punitive damages from all defendants. Neither of
these counts states a claim against the city or its inspectors
for violation of constitutional rights.
As noted above, plaintiff also brings a Monell claim (Count
III) against the city. In Monell v. Department of Social
Services of City of New York, 436 U.S. 658, 694 (1978), the
Supreme Court held that local governing bodies can be sued under
42 U.S.C. § 1983 when plaintiff's constitutional injury results
from the local government's policies or customs. Plaintiff
alleges that her constitutional rights were violated by the City
of Chicago's custom of improperly investigating heating
complaints. Once again plaintiff equates her apartment's lack of
heat with the violation of a constitutional right. Essentially,
plaintiff alleges that the city's building inspectors failed to
perform their job, thus allowing her landlord to deprive her of
heat and hot water. As DeShaney v. Winnebago County Department
of Social Services, 489 U.S. 189, 202 (1989), made clear, a
local government's failure to protect a citizen from harm by a
private individual is not a due process violation. While
plaintiff's complaint may assert incompetence by city workers, it
does not assert a § 1983 Monell claim.
Plaintiff's claim under the Fair Housing Act, 42 U.S.C. § 3601
et seq., (Count XI), is also dismissed. Plaintiff relies on §§
3604(b) and 3617 to support her claim. Section 3604(b) of the Act
makes it illegal to "discriminate against any person in the
terms, conditions, or privileges of sale or rental of a dwelling,
or in the provision of services or facilities in connection
therewith, because of race, color, religion, sex, familial
status, or national origin." Section 3617 makes it illegal to
intimidate anyone wh is exercising a right guaranteed under §
3604. 42 U.S.C. § 3617. The Seventh Circuit has interpreted §
3604 to prohibit discrimination in services related to the acquisition of housing, not the maintenance of
housing. Halprin v. Prairies Single Family Homes of Dearborn
Park Association, 208 F.Supp.2d 896(N.D.Ill. 2002) (citing
Southend Neighborhood Improvement Association v. St. Clair
County, 743 F.2d 1207, 1210 (7th Cir. 1984)). Plaintiff
alleges that defendants violated the statute by denying her heat
and hot water a service associated with the maintenance of her
apartment and therefore outside the scope of the statute. Even if
plaintiff's heat and hot water were services covered by the Fair
Housing Act, her own pleadings make clear that the lack of those
services was the result of a boiler replacement, which affected
all tenants in her building, regardless of their race.
Four of plaintiff's claims remain negligence (Count IV),
intentional infliction of emotional distress (Count V),
respondeat superior (Count VI), and willful and wanton
conduct(Count VII). Count VI alleges that respondeat superior
renders Ann Majoric's employer, Preferred Properties, liable for
her actions. While the doctrine of respondeat superior does
impose liability on an employer for its employee's wrongful
actions, it is not a separate cause of action. Plaintiff does not
allege any wrongful acts in Count VI by Majoric, so that count is
dismissed. Counts IV, V, and VII are all state law claims. As
there are no viable federal claims against any of the defendants,
we relinquish jurisdiction over plaintiffs' pendent state law
claims and dismiss plaintiff's complaint. Wright v. Associated
Insurance Companies, 29 F.3d 1244, 1252 (7th Cir. 1994)
("Thus, the general rule is that, when all federal-law claims are
dismissed before trial, the pendent claims should be left to the
state courts."). As a result, plaintiff's motions for
sanctions, for an order to halt tampering with evidence, and to
add a spoilation claim are moot.
One final note. Since January 2000, plaintiff has filed six
cases in the Northern District of Illinois. Farrar v. Glantz, et al., 00 C 275; Farrar v.
City of Chicago, et al., 00 C 1675; Farrar v. City of Chicago,
et al., 02 C 2914; Farrar v. Bracamondes, et al., 03 C 5530;
Farrar v. Grochowiak, et al., 03 C 6193; Farrar v. Eldibany,
et al., 04 C 3371. Plaintiff alleged violations of her
constitutional rights in all of these cases usually against the
City of Chicago or its employees. All of these cases, except
Farrar v. Grochowiak, which is still pending, have been
dismissed or disposed of on defendants' motions for summary
judgment. The Seventh Circuit has made clear that the courts may
take action to ensure that their resources are not squandered by
a litigant's stream of meritless cases. Alexander v. U.S.,
121 F.3d 312, 316 (7th Cir. 1997) ("Courts have inherent powers
to protect themselves from vexatious litigation"). Courts may
impose fines on abusive filers and bar them from bringing any new
actions. See Montgomery v. Davis, 362 F.3d 956 (7th Cir.
2004). Before filing another complaint or motion, plaintiff would
do well to consider the possible repercussions of unreasonable
and repetitious litigation.
For the foregoing reasons, defendants' motions are granted, and
plaintiff's "Second Further Amended Complaint" is dismissed.
Plaintiff's remaining motions are moot.
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