United States District Court, N.D. Illinois, Eastern Division
January 5, 2005.
CABRINI-GREEN LOCAL ADVISORY COUNCIL, LOUISE GATES, YVONNE CLAY, VERONICA CAMPBELL, SARAH HAYNES, ANTHONY COMMON, RAMONA LEE, and VERONICA MARSHALL, Plaintiffs,
CHICAGO HOUSING AUTHORITY and TERRY PETERSON, Defendants.
The opinion of the court was delivered by: WILLIAM J. HIBBLER, District Judge
MEMORANDUM OPINION AND ORDER
Before the Court is Defendants' motion to dismiss Counts I
through V and VII of the complaint pursuant to Fed.R.Civ.P.
12(b)(1), and Counts II through VI pursuant to Fed.R.Civ.P.
12(b)(6). Defendants also move the Court to decline to exercise
supplemental jurisdiction over Plaintiffs' state law claims,
Counts VII and VIII. Finally, Defendants move for dismissal of
Terry Peterson as a defendant. For the reasons stated below,
Defendants' motion is GRANTED in part and DENIED in part.
Plaintiffs, Cabrini-Green Local Advisory Committee (hereinafter
"LAC")*fn1 together with seven residents of the
Cabrini-Green public housing development (hereinafter "Cabrini"),
filed an eight-count complaint against Defendants, Chicago
Housing Authority (hereinafter "CHA") and Terry Peterson, Chief Executive Officer of the CHA, regarding
the CHA's decision to demolish fifteen buildings known as Cabrini
Extension South and Cabrini Row Houses (collectively "Designated
Buildings") and replace them with mixed-income housing. This
lawsuit revolves around what will happen to the current residents
when the Designated Buildings are demolished.
Counts I through VI are brought under 42 U.S.C. § 1983.
Plaintiffs allege that Defendants' relocation practices
unlawfully exacerbate and perpetuate residential housing
segregation in violation of the Fair Housing Act ("FHA"),
42 U.S.C. § 3604 (Count I); FHA Regulations, 42 U.S.C. § 3608(e)5,
24 C.F.R. §§ 960.103(b), 903.7(o)(I) (Count II); Executive Orders
11063 and 12892 (Count III); Title VI of the Civil Rights Act of
1964, 42 U.S.C. § 2000d, and regulations 24 C.F.R. §§ 1.4(b)(1),
(6) (Count IV); Quality Housing and Work Responsibility Act
("QHWRA"), 42 U.S.C. § 1437c-1(d)(15) (Count V), and the Illinois
Civil Rights Act, 740 ILL. COMP. ST. 23/5(a) (Count VII). Count
VI alleges Defendants' failure to consult Plaintiffs regarding
demolition and relocation plans and failure to develop a
conversion plan violates § 202 of the Omnibus Consolidated
Rescission and Appropriations Acts ("OCRA") of 1996, (Public Law
104-134; 110 Stat. 1321-279), and regulations
24 C.F.R. § 971.7(b), 971.9(a)-(c). Count VIII alleges Defendants' premature
issuance of relocation notices violates the Relocation Rights
Redevelopment of the Designated Buildings is part of the CHA's
larger Plan for Transformation (hereinafter "Plan"). The Plan,
which began in 2000, is a 10-year, $1.5 billion program intended
to revitalize public housing in Chicago by tearing down failed
developments and replacing them with mixed-income housing. As
part of the Plan, the CHA entered into a Relocation Rights Contract (hereinafter "RRC") which applies to
all persons who were CHA residents as of October 1, 1999. The RRC
requires the CHA to provide various relocation services and
requires that, prior to relocating any tenant, the CHA "will make
a good faith effort to enter into a Redevelopment Agreement with
the LAC that reflects any property specific understandings with
respect to the redevelopment process." (Compl. ¶ 45). It also
grants "families originally from the site first priority to rent
one of the new or rehabilitated units." (Id. ¶ 46). The RRC is
intended to make sure the overall redevelopment plan is
acceptable to all parties and to minimize the disruption that
would result from residents being forced to move prematurely.
The CHA slated the Designated Buildings for closure in 2002 and
2003 because of high vacancy rates and extensive problems with
the buildings' heating, plumbing, and electrical systems, among
other things, which make them unsafe and nearly uninhabitable.
Late in 2003, the parties met to discuss future plans for the
Designated Buildings and allegedly agreed that the CHA would hire
an urban planner to assist in creating a master redevelopment and
relocation plan. Soon thereafter, Plaintiffs requested the CHA's
written assurance that no buildings would be closed prior to
completion of the master plan. No such assurance was forthcoming.
In early 2004, the CHA contends that its representatives
visited the Designated Buildings and spoke with some of the
residents regarding its demolition plans. The CHA allegedly
assured the residents that when the buildings were demolished,
they would have a choice between remaining in public housing or
moving to private housing using a Section 8 voucher. The process
continued to move along and, shortly thereafter, the CHA and LAC
chose an urban planner to begin work on a redevelopment plan.
Then, on April 20, 2004, without consulting Plaintiffs and without a redevelopment plan in place, the CHA
issued 180-day relocations notices to all residents of the
Designated Buildings, which stated in part: "This letter is
notice that the CHA is planning to demolish the building where
you live. . . . In the next 180 days the [CHA] Relocation
Department will work with you to move to another public housing
apartment or to Section 8." (Compl. ¶ 68).
The same day, the CHA informed the LAC that it would meet with
them on April 22 to discuss relocation and redevelopment issues.
At that meeting, the LAC objected to the notices as premature and
requested that they be rescinded until a redevelopment plan was
in place. The CHA ultimately refused to rescind the notices and
moved forward with relocation plans by holding a series of six
relocation fairs, where residents again allegedly were informed
that "they could remain at Cabrini or go to a temporary Section 8
unit, and preserve their right to return to the new units being
built at Cabrini." (Def. TRO Brief, Ex. F, ¶ 6). The CHA also
allegedly informed residents that they could change their
relocation choice at any time prior to their move. (Id.)
On June 3, 2004, Plaintiffs filed suit to halt the
redevelopment process until a detailed redevelopment and
relocation plan was in place. Plaintiffs complain the 180-day
relocation notices are premature in that even though the CHA may
have promised residents that they could remain at Cabrini during
the relocation process, the CHA had not yet identified units
where the residents could live. Plaintiffs allege that six months
is not enough time to identify and prepare enough temporary
relocation units within Cabrini for all families who choose that
option. (Pl. TRO Brief, Ex. D, p. 12). Nor, according to
Plaintiffs, is six months enough time for families to qualify for
or use a Section 8 voucher. (Id.) Thus, according to
Plaintiffs, unless the 180-day term is tolled or withdrawn, residents will be forced to move out
of Cabrini unnecessarily and will end up in racially segregated
neighborhoods, with high levels of poverty, troubled schools,
inadequate social services, and high crime. In support of this
contention, Plaintiffs cite several studies based on the
aftermath of the CHA's recent relocation practices, including the
relocation of other Cabrini residents. (Compl. ¶¶ 79-81; Pl. TRO
Brief, at 1 n. 4).
I. Proper Parties
As a preliminary matter, the Court will address issues raised
regarding the LAC's right to sue under § 1983 and whether
Defendant Peterson should be dismissed.
A. LAC as Plaintiff
Defendant contends that the LAC cannot sue under
42 U.S.C. § 1983 because it is not an active corporation and therefore not a
"person" within the meaning of the statute. Specifically,
Defendant points out that the LAC's status as an Illinois
corporation was dissolved on August 2, 1999. (Def. Memo, Ex. 1)
Plaintiffs admit the LAC was dissolved, but claim that its
corporate status was reinstated on July 30, 2004 and is
retroactive to the date of dissolution. No evidence of
reinstatement has been provided.
Regardless of the LAC's corporate status, Plaintiff argues that
it is a "person" for § 1983 purposes because it is a federally
authorized resident council.*fn2 Indeed, the complaint does
not refer to the LAC as a corporation, but describes it as a
"tenant organization representing the residents of
Cabrini-Green." (Compl. ¶ 11). All residents over eighteen years
of age are members of the LAC. (Id.) It is empowered, among other things,
"to act for and on behalf of the residents who live in the
Cabrini-Green development" and "to negotiate, agree upon and
execute contracts, agreements or other binding relationships, on
behalf of the tenants of the development with the Chicago Housing
Authority . . ." (Id. ¶ 12).
Unincorporated organizations have been found to be "persons"
entitled to bring suit under § 1983. Lippoldt v. City of
Wichita, 265 F. Supp.2d 1228, 1235-36 (D. Kan. 2003)
(loosely-knit group of anti-abortion activists); Mille Lacs Band
of Chippewa Indians v. State of Minnesota, 853 F. Supp. 1118,
1127 (D. Minn. 1994) (Indian tribe); Elk Grove Firefighters
Local No. 2340 v. Willis, 391 F. Supp. 487, 491 (N.D. Ill. 1975)
(labor union). This is particularly true where the organization
acts in a representative capacity and "has a loss or deprivation
coincident with that of the member individuals." Elk Grove
Firefighters, 391 F. Supp. at 489. This reasoning is in keeping
with the purpose of § 1983, which is "the vindication of
individual interests against state action." Lippoldt, 265 F.
Supp.2d at 1235 (citation omitted). The only unincorporated
associations found not to be "persons" under § 1983 have been
political subdivisions of a state. Id. Neither party contends
that the LAC is a political subdivision of a state. Moreover,
Defendant does not dispute that the LAC is representing the
interests of Cabrini residents. The Court finds the LAC has
brought suit in an effort to protect the civil rights of its
members, the residents of Cabrini, and that it is an appropriate
body to do so. Thus, the LAC is a "person" entitled to seek
relief under § 1983.
B. Terry Peterson as Defendant
Plaintiffs have sued the CHA and Terry Peterson in his official
capacity as Chief Executive Officer of the CHA. Defendants move
to dismiss all claims against Peterson as redundant under Monell v. Dep't. of Social Services,
436 U.S. 658 (1978). The Court agrees.
Official-capacity suits "`generally represent only another way
of pleading an action against an entity of which an officer is an
agent.' As long as the government entity receives notice and an
opportunity to respond, an official-capacity suit is, in all
respects other than name, to be treated as a suit against the
entity. It is not a suit against the official personally, for
the real party in interest is the entity." Kentucky v. Graham,
473 U.S. 159, 165-66 (1985) (quoting Monell 436 U.S. at 690 n.
55) (citation omitted).
Each count of the complaint is brought against both Peterson in
his official capacity and the CHA. No claim is made against
Peterson personally. Under Monell, each claim against Peterson
is really a claim against the CHA. 436 U.S. at 690. Plaintiffs
cite no authority to the contrary. Instead, they claim Peterson
is a proper defendant because his behavior is at issue in the
case. This argument misses the point. A claim based on Peterson's
behavior in his official capacity is simply a claim against the
CHA. Therefore, it is redundant to name both as parties.
Plaintiffs argument that it is premature to dismiss Peterson
before they have had an opportunity to take discovery is likewise
misdirected. Discovery as to Peterson's conduct in his capacity
as CEO of the CHA is available whether or not he is a named
defendant. Defendants' motion to dismiss all claims against
Peterson is granted. All claims remain against the CHA, however,
except as explained below.
II. Motion to Dismiss under Rule 12(b)(1) for Lack of Standing
Defendants move to dismiss Counts I through V and Count VII
pursuant to Fed.R.Civ.P. 12(b)(1), claiming Plaintiffs have
failed to present a case or controversy and therefore lack
standing under Article III of the constitution. As explained
below, the Court finds that Plaintiffs have presented sufficient facts to show that they have standing.
When subject matter jurisdiction is challenged under Rule
12(b)(1), the plaintiff must establish that all jurisdictional
elements have been satisfied. Kontos v. U.S. Dep't. of Labor,
826 F.2d 573, 576 (7th Cir. 1987). The court may look beyond the
allegations of the complaint and consider whatever evidence has
been submitted. Roman v. United States Postal Serv.,
821 F.2d 382, 385 (7th Cir. 1987). Where standing is challenged as a
factual matter, the plaintiff bears the burden of supporting the
allegations with a preponderance of the evidence, or proof to a
reasonable certainty, that standing exists. Retired Chicago
Police Assn. v. City of Chicago, 76 F.3d 856, 862 (7th Cir.
1996). Standing is to be evaluated based on the facts as they
existed at the time the complaint was filed. Lujan v. Defendants
of Wildlife, 504 U.S. 555, 570 n. 4 (1992).
To have standing, a plaintiff must show that he has suffered,
or is about to suffer, some actual or threatened injury caused by
defendant's actions. Alschuler v. Dep't of House. & Urban Dev.,
686 F.2d 472, 476 (1982) (citation omitted). The injury must be
distinct and palpable, and not abstract, conjectural or
hypothetical. Allen v. Wright, 468 U.S. 737, 751 (1984)
(citations omitted). Plaintiff need not wait until "the
consummation of the threatened injury to obtain preventative
relief." Babbitt v. United Farm Workers Nat'l Union,
442 U.S. 289, 298 (1979) (citations omitted). In addition, the injury must
be likely to be redressed by the relief sought. Lujan,
504 U.S. at 561.
On April 20, 2004, Defendants delivered relocation notices to
over 300 Cabrini families stating that their homes were scheduled
to be demolished in 180 days. This lawsuit followed. Defendants
contend that Plaintiffs lack standing because the redevelopment
process, and more specifically, the relocation notices have
caused no actual or threatened injury to Plaintiffs. Defendants claim they have repeatedly informed the affected
residents that they will have the option to (a) move into another
unit within Cabrini during the redevelopment process, or (b) move
to Section 8 housing and return to Cabrini once the redevelopment
is complete. Defendants argue that because they have made these
promises and intend to live up to them, there is no real risk
that residents who want to remain at Cabrini will be forced out.
Plaintiffs, on the other hand, argue that the CHA's promises
are impossible to fulfill because there was no detailed
redevelopment and relocation plan in place when the relocation
notices were issued. Plaintiffs contend that 180 days is not
enough time to identify and prepare alternate units within
Cabrini for all residents who choose that relocation option. Nor
is 180 day sufficient time to qualify for and use a Section 8
voucher. Accordingly, Plaintiffs allege that when those 180 days
are up, the residents will be funneled into predominantly black,
poverty-stricken, high-crime communities far from their existing
support network. Once this occurs, it is likely that they will
become more transient and more detached from work, school and
social services, making it more likely that they will be denied
the right to move back to Cabrini once redevelopment is complete.
The Court finds Plaintiffs have shown by a preponderance of the
evidence that Defendants' decision to issue 180-day relocation
notices to over 300 families without a redevelopment plan in
place has caused actual and threatened harm. While the CHA
assured the families that they could stay at Cabrini during
redevelopment or choose to move to private housing using Section
8 vouchers, Plaintiffs have put forth evidence that six months is
not long enough to carry out either process. Further, Plaintiffs
point to several studies in support of their contention that
similar planning practices have resulted in other Chicago public
housing residents being relocated to racially segregated, poverty-stricken,
high-crime communities. (Pl. TRO Brief, Ex. A-C). The risk that
Plaintiffs could face the same fate in this case amount to a
distinct and palpable injury in the eyes of the Court. Mere
assurances are insufficient to alleviate the threatened harm
absent some showing that they are attainable before the end of
the notice period. The CHA has made no such showing.
Further, the Court is satisfied that the injunctive relief
sought is likely to redress the alleged injury. Plaintiffs seek a
limited injunction requiring Defendants to negotiate with them in
good faith over the relocation and redevelopment process and
restraining Defendants from carrying out the 180-day notices
until a specific plan is developed. Therefore, the Court finds
the Plaintiffs have standing.*fn3
Next, Defendants argue that Counts I through V and Count VII
should be dismissed as moot because Defendants have repeatedly
assured Plaintiffs that they can remain at Cabrini during the
redevelopment process, and they are now in the process of living
up to those promises. Plaintiffs disagree, arguing that if the
suit is dismissed, Defendants are free to change their minds. "It
is well settled that a `defendant's voluntary cessation of a
challenged practice does not deprive a federal court of its power
to determine the legality of the practice.'" Friends of the
Earth, Inc. v. Laidlaw Envtl. Servs., 528 U.S. 167, 189 (2000)
(quoting City of Mesquite v. Aladdin's Castle, Inc.,
455 U.S. 283, 289 (1982)). Otherwise, a defendant could return to his or her ways after dismissal. Thus, a case is mooted by the
defendant's voluntary conduct only if it is "absolutely clear
that the allegedly wrongful behavior could not reasonably be
expected to recur." Id. (citing United States v. Concentrated
Phosphate Exp. Ass'n, 393 U.S. 199, 203 (1968)). The heavy
burden of convincing the court that the "challenged conduct will
not start up again lies with the party asserting mootness." Id.
While the parties have made progress with respect to developing
and implementing a detailed relocation plan, they have done so
pursuant to a temporary restraining order and with significant
Court involvement.*fn4 This progress, while encouraging, has
been plagued by continuous disputes over the details of the
relocation process. Moreover, while the parties appear to be
cooperating, attempts at settlement have been unsuccessful. Given
these factors, the Court cannot say with absolute certainty that
the alleged unlawful behavior will not recur if the complaint is
dismissed. Indeed, it seems more likely that the negotiations
would fall apart, and the parties would end up back in court.
Therefore, Plaintiffs' claims are not moot.
I. Motion to Dismiss under Rule 12(b)(6) for Failure to State a
Defendants move to dismiss Counts II through VI for failure to
state a cause of action. In deciding a motion to dismiss under
Federal Rule of Civil Procedure 12(b)(6), the court views the
allegations of the complaint as true. Marshall-Mosby v. Corp.
Receivables, Inc., 205 F.3d 323, 326 (7th Cir. 2000). All
well-pleaded facts and inferences therefrom are viewed in the
light most favorable to the plaintiff. Id. A Rule 12(b)(6)
motion should be granted only if it appears beyond doubt that
plaintiffs can prove no set of facts that would ultimately
entitle them to relief. Id.
According to Defendants, under Gonzaga University v. Doe,
536 U.S. 273, 290-91 (2002), only statutes can confer a private right
of action, therefore Counts II and III, which are based on
implementing regulations and executive orders, must fail. These
very arguments were addressed and rejected on a motion to dismiss
in Wallace v. CHA, 298 F.Supp.2d 710, 718-22 (N.D. Ill. 2003).
The court ruled that the very same implementing regulations and
executive orders are enforceable through § 1983. Id. at 719-20.
The Wallace court also rejected Defendants' argument that no §
1983 claim exists under the FHA and QHWRA because the language of
those statutes fail to clearly and unambiguously create rights
for a protected class. Id. at 719. Again, the Wallace court
was addressing the same statutory sections which are at issue in
this case. Defendants make no novel arguments, nor have they
attempted to distinguish the Wallace opinion, which the Court
finds persuasive. Accordingly, Defendants' motion to dismiss
Counts II, III and V is denied. By the same token, the Court
finds a private right of action exists under § 202 of OCRA and
its implementing regulations. Defendant's motion to dismiss Count
VI is therefore denied.
Count IV is based on Title VI of the Civil Rights Act, §
2000(d) and implementing regulations 24 C.F.R. §§ 1.4(b)(1), (6).
Defendants argue dismissal is required under Alexander v.
Sandoval, 532 U.S. 275 (2001). Plaintiffs respond simply by
arguing that they have made out a claim of intentional
discrimination. The Court agrees with Defendants.
Private individuals may sue for intentional discrimination
under § 601. Id. at 279-80. However, this private right of
action does not include a private right to enforce disparate
impact regulations. Id. at 285. Count IV of the complaint
includes no allegation of intentional discrimination. At best, Plaintiffs allege Defendants "know"
their relocation plan will exacerbate and perpetuate residential
housing segregation, and that the effects of Defendants' conduct
are "deliberately segregative." (Compl. ¶¶ 117-18). Moreover, as
stated in Wallace, the regulations cited by Plaintiffs do "not
relate to intentional conduct proscribed and actionable under §
601." Wallace, 298 F.Supp.2d at 721. Thus, the Court finds
Plaintiffs have failed to state a claim for intentional
discrimination. Count IV is therefore dismissed.
Finally, Defendants urge the Court to decline to exercise
supplemental jurisdiction over Plaintiffs' state law claims.
Because several federal claims survive the motion to dismiss,
Defendants' request is denied.
II. Stay or Dismissal of Present Action Based on Wallace
Defendants have moved to dismiss or stay this case pending the
outcome of Wallace v. CHA, 03 C 491, which is currently pending
in this district. "A federal suit may be dismissed `for reasons
of wise judicial administration . . . whenever it is duplicative
of a parallel action already pending in another federal court.'"
Serlin v. Arthur Andersen & Co., 3 F.3d 221, 223 (7th Cir.
1993) (citation omitted).*fn5 A suit is duplicative if the
"`claims, parties, and available relief do not significantly
differ between the two actions.'" Id. (citation omitted).
According to Defendants, the Plaintiffs in this case fall within
putative class in Wallace, their claims are the same as those
brought by the Wallace class, and they are seeking the same
relief. Not surprisingly, Plaintiffs dispute all three issues. The following class was recently certified in Wallace:
All present and former public housing residents who
have moved or will move out of CHA public housing
using a Housing Choice Voucher (also known as a
Section 8 Certificate or Section 8 Voucher) and who
moved or will move into segregated neighborhoods
using a Housing Choice Voucher after October 1, 1999,
and have been, continue to be, or will be adversely
affected by Defendants' and their agents' segregative
and discriminatory actions, policies, and practices,
as alleged in Plaintiffs' first amended complaint.
Wallace v. CHA, No. 03 C 491, at 21 (N.D. Ill. October 6,
2004). The Court finds that not all of the Plaintiffs in this
case fall within the Wallace class. To be a class member, a
resident must move or have moved using a Section 8 voucher. The
individual Plaintiffs in this case have not relocated using a
Section 8 voucher, nor do they intend to, even though it is an
available option. Indeed, the present suit was filed because the
individual Plaintiffs in this case, as well as a significant
number of other affected residents, allegedly want to remain at
Cabrini throughout the relocation and redevelopment process.
Moreover, the Wallace class does not appear to encompass
Plaintiff LAC, the tenant organization which represents all of
the affected residents. Defendant provides no persuasive argument
or evidence to the contrary, thus their argument for dismissal or
stay based on Wallace fails on this point alone.
Even if there is some overlap in Plaintiffs, Defendants have
not shown that the relief sought is the same. As Plaintiffs
pointed out, the Wallace class is seeking to remedy the voucher
administration process, while Plaintiffs in this case are seeking
to force the CHA to negotiate over the relocation of families who
do not wish to leave public housing when their current homes are
demolished. Thus, the outcome of Wallace will not dispose of
Plaintiffs' claims. Defendants' motion to dismiss or stay this
case pending the outcome of Wallace is denied. Conclusion
Defendants' motion to dismiss Terry Peterson as a defendant is
GRANTED and Defendant Peterson is hereby dismissed. Defendants'
motion to dismiss Count VI for failure to state a claim is also
GRANTED. The motion is DENIED in all other respects.
IT IS SO ORDERED.