United States District Court, N.D. Illinois, Eastern Division
September 26, 2005.
JANICE THOMAS and PLAINTIFFS Y and Z, Plaintiffs,
JEAN K. BUTZEN, President Lakefront Supportive Housing and Lakefront SRO Corporation, CITY OF CHICAGO, CHICAGO HOUSING AUTHORITY, an Illinois Municipal Corporation, CHICAGO HOUSING AUTHORITY CORPORATION, INC. THE HOUSING CHOICE VOUCHER PROGRAM, CYNTHIA DEAN, Official of Lakefront Supportive Housing and Lakefront SRO Corporation, HELMUT JAHN, Architect, LAKEFRONT SRO CORPORATION & SUPPORTIVE HOUSING, CAROL J. WETMORE, or current Chair, Board of Directors, Lakefront SRO Corporation, NATIONAL CORPORATION FOR SUPPORTIVE HOUSING, JANICE D. SCHAKOWSKY, Congresswoman, STATE OF ILLINOIS and UNITED STATES DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, Defendants.
The opinion of the court was delivered by: RONALD GUZMAN, District Judge
MEMORANDUM OPINION AND ORDER
Janice Thomas and Plaintiffs Y and Z, proceeding pro se, have
sued defendants Jean Butzen, the City of Chicago ("City"),
Chicago Housing Authority ("CHA"),*fn1 Cynthia Dean, Helmut
Jahn, Lakefront SRO Corporation ("Lakefront"), National Corporation for
Supportive Housing, Carol Wetmore, United States Representative
Janice Schakowsky, the State of Illinois and the United States
Department of Housing and Urban Development ("HUD"), on behalf of
themselves, and all others similarly situated, for defendants'
alleged violations of the Fair Housing Act ("FHA"),
42 U.S.C. § 3601 et seq., the Quality Housing and Work Responsibility Act
of 1998 ("QHWRA"), 42 U.S.C. §§ 1437c-1(d)(15), d(1)(6), d(1)(7),
the Housing Choice Voucher Program, 42 U.S.C. § 1437f(o),
Executive Orders 11063 and 12982 and 42 U.S.C. §§ 1982, 1983 in
connection with Lakefront's operation of its current facilities
and its proposed construction of a new facility.*fn2
Defendants have filed a joint motion pursuant to Federal Rules of
Civil Procedure ("Rule") 12(b)(1) and (b)(6) to dismiss the
claims asserted against them. For the reasons set forth below,
the Court grants the motion in part and denies it in part.
The Legal Standard
On motions to dismiss pursuant to Rule 12(b)(6) and Rule
12(b)(1), the Court accepts as true all well-pleaded factual
allegations of the complaint, drawing all reasonable inferences
in plaintiff's favor. United Phosphorus, Ltd. v. Angus Chem.
Co., 322 F.3d 942, 946 (7th Cir. 2002) (Rule 12(b)(1)); Forseth
v. Vill. of Sussex, 199 F.3d 363, 368 (7th Cir. 2000) (Rule
12(b)(6)). No claim will be dismissed unless "it is clear that no relief could be
granted under any set of facts that could be proved consistent
with the allegations." Hishon v. King & Spalding, 467 U.S. 69,
As an initial matter, we address the propriety of Plaintiffs Y
and Z suing anonymously. Identification of parties is required
both by Rule 10 and the First Amendment. See Doe v. Stegall,
653 F.2d 180, 185 (5th Cir. 1981) ("Public access to [party
names] is more than a . . . procedural formality; First Amendment
guarantees are implicated when a court decides to restrict public
scrutiny of judicial proceedings."). "The presumption that
parties' identities are public information . . . can be rebutted
by showing that the harm to the plaintiff . . . exceeds the
likely harm from concealment." Doe v. City of Chi.,
360 F.3d 667, 669 (7th Cir. 2004). The balance may tip in favor of
concealment when the plaintiff is, among other things, a minor, a
rape victim or "a likely target of retaliation by people who
would learn her identity only from a judicial opinion or other
court filing." Id. Plaintiffs Y and Z say they are suing
anonymously because they fear retaliation. (See Compl. ¶ 8
(stating that plaintiffs Y and Z "shall be unnamed because they
received death threats, false arrests . . ., wrongful evictions,
release of faked mental and medical health records and other
discriminatory treatment at the hands of the site management").)
Yet, in their reply brief, Plaintiffs Y and Z are identified as
Keith Richardson and Ethel Williams, respectively. (See Reply
at 13.) Because Richardson and Williams are now publicly
identified, the Court treats the complaint as if it had named
them. Subject Matter Jurisdiction
Plaintiffs appear to assert four categories of claims: (1)
those that seek to enjoin Lakefront's allegedly unlawful current
operations; (2) those that seek damages for Lakefront's allegedly
unlawful past operations; (3) those that contest Lakefront's
alleged plan to perpetuate its unlawful conduct by opening a new
facility; and (4) those that challenge as illegal or
unconstitutional specific actions taken against Thomas.
Plaintiffs have standing to pursue these claims only if they were
injured by defendants' conduct and that injury is likely to be
redressed by a decision in their favor. Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560-61 (1992).
Plaintiffs allege that Williams is a tenant of Lakefront but
that Thomas and Richardson are not. (See Compl. ¶ 7; Reply at
12-14.) Because Thomas and Richardson do not live in a Lakefront
facility, they are not injured by Lakefront's current operation
of those facilities, even if it is unlawful. Consequently, only
Williams has standing to pursue the first category of claims,
seeking an injunction against Lakefront's enforcement of its
current lease provisions and operational policies.
All three plaintiffs, however, have standing to sue for the
second category of claims. To the extent defendants violated
their rights while they allegedly were Lakefront tenants,
plaintiffs can sue to recover damages for those injuries even
though they no longer reside in a Lakefront facility. Lujan,
504 U.S. at 560-61.
The third category of claims, pertaining to the perpetuation of
discrimination at the new building, is not ripe. "A claim is not
ripe for adjudication if it rests upon contingent future events
that may not occur as anticipated, or indeed may not occur at
all." Texas v. United States, 523 U.S. 296, 300 (1998)
(quotation omitted). Plaintiffs' claims that Lakefront will
perpetuate its alleged discrimination at the proposed new
facility is based on their assumptions as to future events; that
is, they assume that the proposed building will, in fact, be built
and that the allegedly discriminatory policies in effect at other
Lakefront facilities will be put into effect there. Unless and
until those events occur, however, the new facility claims are
not ripe. Id.
Moreover, even if those claims were ripe, none of the
plaintiffs would have standing to pursue them. Plaintiffs do not
allege that they are going to, or even that they are likely to,
reside in the facility Lakefront plans to construct. Absent
allegations that Lakefront's alleged discrimination at the new
building will injure them personally, plaintiffs lack standing to
pursue the new facility claims. Lujan, 504 U.S. at 560-61.
That leaves: (1) Williams' claim to enjoin Lakefront's
allegedly illegally operation of its existing facilities; (2) all
three plaintiffs' damage claims for rights violations they
allegedly suffered while they were tenants of Lakefront; and (3)
Thomas' claims that defendants violated her First Amendment
rights by retaliating against her for publishing a newsletter,
her Fourth Amendment rights by falsely arresting her and her
Fourteenth Amendment*fn3 right to review documents prior to
an eviction proceeding.*fn4 Plaintiffs assert these claims
against Lakefront, Lakefront employees Jean Butzen, Cynthia Dean
and Carol Wetmore, Helmut Jahn, the City, CHA, United States Representative Janice Schakowsky, the State of Illinois and HUD,
and they seek monetary, injunctive and declaratory relief.
The State of Illinois contends that it is immune from
plaintiffs' claims. Though the Eleventh Amendment generally gives
states immunity from suit in federal court, Darne v. Wisconsin
Department of Revenue, 137 F.3d 484, 487 (7th Cir. 1998), there
are exceptions to this rule:
First, suits against state officials seeking
prospective equitable relief for ongoing violations
of federal law are not barred by the
Eleventh Amendment. Second, individuals may sue directly a
state when Congress has abrogated the immunity in
unequivocal terms and pursuant to a valid exercise of
its own power. Finally, a suit may be brought against
a state directly when a state has waived its immunity
and validly consented to suit in federal court.
Id. at 488. Plaintiffs' claims do not fall within any of these
exceptions. Thus, their claims are barred by the
Eleventh Amendment. Id.*fn5
Congresswoman Schakowsky also contends that she is immune from
plaintiffs' claims. The Court agrees. Plaintiffs seek to hold the
Congresswoman liable for supporting public housing legislation.
(See Compl. ¶ 10.) Such claims are barred by the Speech and
Debate Clause of the Constitution. See U.S. CONST.,
art. I, § 6, cl. 1 ("[F]or any Speech or Debate in either House, [members
of Congress] shall not be questioned in any other Place."); Doe
v. McMillan, 412 U.S. 306, 311-12 (1973) (stating that members
of Congress are protected from suit arising from their activities
within the "sphere of legitimate legislative activity," which
includes voting on legislation) (quotation omitted). The claims
against Congresswoman Schakowsky must, therefore, be dismissed. HUD says that the doctrine of sovereign immunity shields it
from this suit. Sovereign immunity protects the federal
government and its agencies from being sued without their
consent. FDIC v. Meyer, 510 U.S. 471, 475 (1994). The
government can waive that immunity, but such a waiver "must be
unequivocally expressed." Lane v. Pena, 518 U.S. 187, 192
(1996). There is no waiver of sovereign immunity for HUD in the
FHA, the QHWRA, the Housing Choice Voucher Program or Executive
Orders 11063 and 12982. Thus, any damages claims plaintiffs
assert against HUD for its alleged violations of those statutes
must be dismissed.
Sovereign immunity does not, however, shield HUD from any
damages claims plaintiffs assert against it for violating
42 U.S.C. § 1982. Baker v. F& F Inventory Co., 489 F.2d 829, 833
(7th Cir. 1973) (stating that the "sue and be sued clause" of the
National Housing Act, 12 U.S.C. § 1702 waives HUD's sovereign
immunity for 42 U.S.C. § 1982 claims). The Baker decision has
been criticized by courts outside of this circuit. See, e.g.,
Selden Apartments v. U.S. Dep't of Hous. & Urban Dev.,
785 F.2d 152, 156-59 (6th Cir. 1986) (rejecting the reasoning of Baker,
discussing contrary authority from other jurisdictions and
holding that HUD is immune from 42 U.S.C. § 1982 suits for
damages). In Federal Deposit Insurance Corp. v. Citizens Bank &
Trust Co. of Park Ridge, 592 F.2d 364 (7th Cir. 1979), the
Seventh Circuit overruled another of Baker's holdings, that
federal agencies subject to sue-and-be-sued provisions could be
sued for torts not covered by the Federal Tort Claims Act. Id.
at 371. But it did not reject Baker's holding that HUD was not
immune from section 1982 claims. On the contrary, the court
underscored the vitality of that holding, noting that it had
previously "cited [the case] for its discussion of 42 U.S.C. ss
1981 and 1982." See id. at 371 n. 9 (citing City of Milwaukee
v. Saxbe, 546 F.2d 693, 703 (7th Cir. 1976)). In short, Baker
remains the law of this circuit. Thus, HUD is not immune from plaintiffs'
42 U.S.C. § 1982 claims for damages.*fn6
Even if jurisdiction exists, defendants urge us to abstain from
exercising it under the Younger doctrine. That doctrine
"forbids federal district courts to interfere with certain types
of state court proceedings." Lynk v. LaPorte Superior Court No.
2, 789 F.2d 554, 558 (7th Cir. 1986). To determine whether
Younger abstention is proper, we must examine the relief sought
in both cases to determine whether resolution of the federal
court case "will unduly interfere with the ongoing state
proceedings." Am. Fed'n of State, County & Mun. Employees v.
Tristano, 898 F.2d 1302, 1305 (7th Cir. 1990). Thomas is the
sole plaintiff in the state court suit. (See Defs.' Mem. Supp.
Joint Mot. Dismiss, Ex. C, First Am. Compl. Case No. 04-CH-3670.)
She is suing Carolyn Stanley, a Lakefront employee, Lakefront,
CHAC, CHA and Congresswoman Schakowsky. (Id. at 1-2.) She
alleges that defendants evicted her in violation of state law and
a City ordinance and wrongfully appropriated her mail. (See id.
at 5-10.) Thomas does not raise in that suit the federal claims
she raises here. Because the claims raised in the two suits are
distinct, resolution of this case will not interfere with the
state court action. See Am. Fed'n of State, County & Mun.
Employees, 898 F.2d at 1305 (holding that "the district court
erred in dismissing the plaintiffs' claims based on Younger
abstention" because "[t]he relief requested in federal court, if
granted, would not unduly interfere with the state proceedings"). Defendants' motion to dismiss on the grounds of
Younger abstention is, therefore, denied.
Plaintiffs contend that defendants' actions violated their
rights under 42 U.S.C. § ("section") 1982, which states: "All
citizens of the United States shall have the same right, in every
State and Territory, as is enjoyed by white citizens thereof to
inherit, purchase, lease, sell, hold, and convey real and
personal property." To state a viable section 1982 claim,
plaintiffs must allege that defendants "had a racial animus,
intended to discriminate against the plaintiff[s] and deprived
[them] of protected rights because of [their] race."
Whisby-Myers v. Kiekenapp, 293 F. Supp.2d 845, 850 (N.D. Ill.
2003). The only right protected by section 1982 that is even
arguably implicated by plaintiffs' complaint is the right to
lease property. Read favorably to plaintiffs, their complaint
alleges that Lakefront terminated their leases or otherwise
subjected them to unfavorable lease terms solely because of their
race and that CHA and HUD participated in, or condoned,
Lakefront's conduct. Plaintiffs do not allege, however, that the
City, the National Corporation for Supportive Housing ("NCSH"),
or Jahn, Butzen, Dean or Wetmore, individually, did anything to
deprive them of their right to lease property. Accordingly, any
section 1982 claims asserted against those defendants is
Any section 1982 claims that plaintiffs assert against Butzen,
Dean and Wetmore in their official capacities must also be
dismissed. Asserting a claim against an employee in her official
capacity is the same as suing the entity that employs her.
Kentucky v. Graham, 473 U.S. 159, 165 (1985). Any official
capacity claims asserted against these defendants are redundant
of Thomas' claims against their employer, Lakefront. Accordingly, any
section 1982 official capacity claims asserted against Butzen,
Dean and Wetmore are also dismissed.
The rest of plaintiffs' claims are grounded in section 1983.
That statute provides redress for people whose federal rights are
violated "under color of state law." 42 U.S.C. § 1983. HUD, as a
federal agency, acts under color of federal law. Thus, it is not
subject to section 1983. City of Milwaukee, 546 F.2d at 703
(7th Cir. 1976) ("We agree . . . that, insofar as City complains
of acts done by the defendants under color of federal law rather
than state law, § 1983 does not apply.")*fn7
The bulk of plaintiffs' remaining section 1983 claims are
grounded in defendants' alleged violations of section 3608(e)(5)
of the FHA, section 1437c-1(d)(15) of the QHWRA, the Housing
Choice Voucher Program, 42 U.S.C. § 1437f(o), and Executive
Orders 11063 and 12892. Defendants say that none of these
statutes creates rights that can be vindicated through section
Plaintiffs, relying primarily on Wallace v. Chicago Housing
Authority, 298 F. Supp. 2d 710 (N.D. Ill. 2003), disagree. The
plaintiffs in Wallace were CHA residents who were subject to
relocation when CHA demolished their high-rise buildings. Id.
at 714. The Wallace plaintiffs claimed that CHA failed to
provide them with adequate relocation services or gave them
services that steered them into neighborhoods that were
predominantly African-American. Id. Plaintiffs claimed that
CHA's actions violated, among other laws, section 3608(e)(5) of
the FHA, section 1437c-1(d)(15) of the QHWRA and Executive Orders
11063 and 12892. Id. at 715.
Section 3608(e)(5) of the FHA requires the Secretary of HUD to
"administer the programs and activities relating to housing and
urban development in a manner affirmatively to further the policies of this subchapter." 42 U.S.C. § 3608(e)(5). Section
1437c-1(d)(15) of the QHWRA requires public housing agencies like
CHA to submit a plan to HUD every five years that contains, among
other things, the agency's certification that it "will
affirmatively further fair housing." 42 U.S.C. § 1437c-1(d)(15).
Executive Orders 11063 and 12892, respectively, require the heads
of federal agencies to "take all action necessary and appropriate
to prevent discrimination because of race, color, creed, or
national origin [with respect to housing]" and to "ensur[e] that
[their] programs and activities relating to housing and urban
development are administered in a manner affirmatively to further
the goal of fair housing." Executive Order 11063,
27 Fed. Reg. 11527 (Nov. 20, 1962); Executive Order 12892, 59 Fed. Reg. 2939
(Jan. 17, 1994).
In Wallace, CHA moved to dismiss plaintiffs' claims, arguing
that none of those provisions creates rights cognizable under
section 1983. Wallace, 289 F. Supp. 2d at 717. The Wallace
Court disagreed. A statute confers an enforceable right, this
Court held, if: plaintiffs were the intended beneficiaries of the
provision, the right allegedly conferred is not "`so vague and
amorphous' that its enforcement would strain judicial competence"
and the provision is couched in mandatory terms. Id. at 717 n.
3 (quoting Blessing v. Freestone, 520 U.S. 329, 340-41 (1997)).
In the Wallace Court's view, all of the provisions cited by
plaintiffs create rights that can be enforced through a section
1983 suit. See id. at 718-21.
In reaching this conclusion, The Court relied heavily on
Langlois v. Abington Housing Authority, 234 F. Supp. 2d 33 (D.
Mass. 2002). See Wallace, 289 F. Supp. 2d at 718 ("As discussed
in more detail below, we agree with the court's reasoning in
Langlois. . . .").) In Langlois, a group of Massachusetts
housing authority residents brought section 1983 claims against
those agencies for their alleged violations of section 3608(e)(5)
of the FHA, section 1437c-1(d)(15) of the QHWRA and Executive Orders 11063 and 12892 in their administration of
federal housing programs. Langlois, 234 F. Supp. 2d at 37, 46.
As in Wallace and the instant case, the defendants in
Langlois moved to dismiss on the grounds that those provisions
did not confer enforceable rights. Id. at 37.
The Langlois court did not substantively address section
1437c-1(d)(15) of the QHWRA, because it was not in effect at the
time of the contested conduct, but held that section 3608(e)(5)
of the FHA creates enforceable rights and, because they are
incorporated into the FHA, the Executive Orders do as well. Id.
at 70-78. In the court's words:
Section 3608(e)(5) . . . meets the Blessing
criteria. It could not be clearer from the statute,
the legislative history, and the case law construing
it that this provision was intended to benefit the
plaintiffs here: people in desperate need of access
to fair housing, minorities and the poor.
Nor is the duty to affirmatively further too vague
and amorphous for the courts to enforce. Essentially,
as the Court in Blessing noted, this is an issue of
judicial competence. As noted above, it is an
antidiscrimination statute and few discrimination
statutes are more specific. Judicial decisions and
administrative regulations have given content to
these provisions over the past twenty years. . . .
The final Blessing criterion whether the
statutory language at issue imposes an unambiguous
and binding obligation on the state is also met
here. The language of the statute is mandatory: it
provides that the Secretary "shall" administer the
relevant programs in a manner affirmatively to
further the policies of the statutory subchapter.
Id. at 72-73 (citation omitted). The Wallace court adopted
this analysis almost verbatim:
[W]e believe that the provisions § 3608(e)(5) of the
Fair Housing Act easily pass the Blessing test.
See Langlois, 234 F. Supp. 2d at 71-72. At issue in
this case is the first prong of the Blessing test,
because there is little dispute that the language of
the act is mandatory; nor can the parties seriously
contend that a claim under the Fair Housing Act
strains judicial competence. . . . With respect to
this first prong, we agree with the Langlois court
that "[i]t could not be clearer from the statute, the
legislative history, and the case law construing it,
that [§ 3608(e)(5)] was intended to benefit the
plaintiffs here: people in desperate need of access
to fair housing, minorities and the poor." Id. at
72. . . . Thus, for the foregoing reasons, we hold
that Plaintiffs may sue under § 1983 to combat a
violation of § 3608(e)(5) of the Fair Housing Act. Wallace, 298 F. Supp. 2d at 719.
With due respect to those courts, we believe that the Langlois
and Wallace decisions do not comport with Blessing and run
counter to the trend of Supreme Court authority in this area. In
particular, Langlois and Wallace give short shrift to the second
part of the Blessing test: whether "the right assertedly
protected by the statute is not so vague and amorphous that its
enforcement would strain judicial competence." Blessing,
520 U.S. at 340-41 (quotation omitted). About that part of the test, the
Blessing Court said:
[T]he lower court's holding that Title IV-D "creates
enforceable rights" paints with too broad a brush. It
was incumbent upon respondents to identify with
particularity the rights they claimed, since it is
impossible to determine whether Title IV-D, as an
undifferentiated whole, gives rise to undefined
"rights." Only when the complaint is broken down into
manageable analytic bites can a court ascertain
whether each separate claim satisfies the various
criteria we have set forth for determining whether a
federal statute creates rights.
In prior cases, we have been able to determine
whether or not a statute created a given right
because the plaintiffs articulated, and lower courts
evaluated, well-defined claims. In Wright, for
example, we held that tenants of public housing
projects had a right to have their utility costs
included within a rental payment that did not exceed
30 percent of their income. We did not ask whether
the federal housing legislation generally gave rise
to rights; rather, we focused our analysis on a
specific statutory provision limiting "rent" to 30
percent of a tenant's income. Similarly, in Wilder,
we held that health care providers had an enforceable
right to reimbursement at "reasonable and adequate
rates" as required by a particular provision in the
Medicaid statute. And in Suter v. Artist M., where
we held that Title IV-E of the Social Security Act
did not give the plaintiffs the right that they
asserted, we again analyzed the claim in very
specific terms: whether children had a right to have
state authorities undertake "reasonable efforts to
prevent removal of children from their homes and to
facilitate reunification of families where removal
had occurred." Finally, in Livadas, we discerned in
the structure of the National Labor Relations Act
(NLRA) the very specific right of employees "to
complete the collective-bargaining process and agree
to an arbitration clause." We did not simply ask
whether the NLRA created unspecified "rights." Id., 520 U.S. at 342-43 (citations omitted). The Langlois
court's reduction of this part of the test to "[e]ssentially . . .
an issue of judicial competence," see Langlois,
234 F. Supp. 2d at 73, is a gross oversimplification.
Blessing's insistence that section 1983 plaintiffs identify
specific rights that they contend are conferred by a statute is
just one of a series of qualifications that the Court has added
to the creation-of-rights analysis since its appearance in
Wilder v. Virginia Hospital Association, 496 U.S. 498 (1990).
The Wilder Court said that a federal statute creates an
enforceable right if "the provision . . . was intend[ed] to
benefit the putative plaintiff," it reflects a "binding
obligation on the governmental unit" and the asserted right is
not "too vague and amorphous such that it is beyond the
competence of the judiciary to enforce." Id. at 509 (quotations
omitted). The Wilder Court applied that test to the Boren
Amendment, which conditioned states' receipt of federal Medicaid
funds on their submission to the Secretary of Health and Human
Services ("HHS") of a plan that provided for payments to medical
service providers that are "reasonable and adequate to meet the
costs which must be incurred by efficiently and economically
operated facilities." Id. at 502-03. The Court concluded that
the medical service providers were the "intended beneficiaries of
the Boren Amendment" because it explicitly requires state plans
to provide for payment to them. Id. at 510. The Court also said
that the Amendment reflected a binding obligation because it
requires, rather than permits, state plans to provide for
reasonable payments. Id. at 512. Moreover, the Court said,
[t]hat the amendment gives the States substantial
discretion in choosing among reasonable methods of
calculating rates may affect the standard under which
a court reviews whether the rates comply with the
amendment, but it does not render the amendment
unenforceable by a court. While there may be a range
of reasonable rates, there certainly are some rates
outside that range that no State could ever find to
be reasonable and adequate under the Act. Although
some knowledge of the hospital industry might be
required to evaluate a State's findings with respect
to the reasonableness of its rates, such an inquiry is well
within the competence of the Judiciary.
Id. at 519-20 (footnote omitted). Thus, the Court concluded
that "the Act creates a right enforceable by health care
providers under § 1983 to the adoption of reimbursement rates
that are reasonable and adequate to meet the costs of an
efficiently and economically operated facility that provides care
to Medicaid patients." Id. at 509-10.
Not long after it was decided, the Court started to back away
from Wilder. Two years later, the Court decided Suter v.
Artist M., 503 U.S. 347 (1992), a case in which children who are
or were wards of the Illinois Department of Children and Family
Services sued the agency under section 1983 for its alleged
violation of the Adoption Assistance and Child Welfare Act. Id.
at 350-53. That statute enables a state to be reimbursed for a
percentage of foster care and adoption assistance costs if it
submits a plan to the Secretary of HHS certifying that
"`reasonable efforts will be made . . . to prevent or eliminate
the need for removal of the child from his home, and . . . to
make it possible for the child to return to his home.'" Id. at
351 (quoting 42 U.S.C. § 671(a)(15)). The plaintiff-children said
that provision of the statute conferred upon them a right to have
the State make reasonable efforts to keep them in and return them
to their homes. Id. at 352-53.
The similarities between the statute at issue in Wilder and
that at issue in Artist M. are striking: both are funding
statutes enacted under Congress' spending power, both frame the
state agencies' obligation in terms of reasonableness and neither
defines "reasonable." Yet, the Artist M. Court reached the
opposite result. Id. at 350. The Adoption Act, the Court said,
does not require the states to have plans certifying that they
will use reasonable efforts to keep the children in or return
them to their homes. Id. at 358. Rather, the Court said, the
statute simply requires the states to "have a plan approved by the Secretary [of HHS] which contains
the 16 listed features." Id. But the same could be said of the
statute at issue in Wilder, which the Artist M. Court did not
mention in this section, because it requires the states to submit
a Medicaid plan that contains some or all of each of 50 listed
features. Compare 42 U.S.C. § 671(a) (construed in Artist
M.), with 42 U.S.C. § 1396a (1990) (construed in Wilder).
Moreover, when the Court did distinguish Wilder, as the
dissenters noted, its reasoning was less than compelling. See
503 U.S. at 365. The Medicaid legislation was different from the
Adoption Act, the Court said, because the former "set forth in
some detail the factors to be considered" in determining
reasonable reimbursement rates while the latter contained "[n]o
further statutory guidance . . . as to how `reasonable efforts'
[to keep children in their homes] are to be measured." Id. at
359-60. In reality, the "detail[ed] . . . factors" set forth in
the Medicaid statute are broad considerations that do little to
inform the reasonableness determination. See Wilder,
496 U.S. at 519 n. 17 (listing the considerations as: "(1) the unique
situation (financial and otherwise) of a hospital that serves a
disproportionate number of low income patients, (2) the statutory
requirements for adequate care in a nursing home, and (3) the
special situation of hospitals providing inpatient care when
long-term care at a nursing home would be sufficient but is
The conflict between Wilder and Artist M. did not go
unnoticed by Justices Blackmun and Stevens, who dissented from
[T]he Court's conclusion is plainly inconsistent with
this Court's decision just two Terms ago in Wilder
v. Virginia Hospital Assn., 496 U.S. 498,
110 S. Ct. 2510, 110 L. Ed. 2d 455 (1990), in which we found
enforceable under § 1983 a functionally identical
provision of the Medicaid Act requiring "reasonable"
reimbursements to health-care providers. More
troubling still, the Court reaches its conclusion
without even stating, much less applying, the
principles our precedents have used to determine
whether a statute has created a right enforceable
under § 1983. 503 U.S. at 365. But the retreat from Wilder
In 1997, the Court decided Blessing. 520 U.S. 329. In that
opinion, the Court adhered to the three-part test announced in
Wilder but, as discussed above, required that the right
allegedly created be specifically defined. Id. at 342-43.
In 2002, the Court refined the test even further in Gonzaga
University v. Doe, 536 U.S. 273 (2002). In that case, a graduate
of Gonzaga sued the school for its disclosure to a state agency
that he was under investigation for sexual misconduct. Id. at
277. Plaintiff claimed that the University's actions violated the
Family Educational Rights and Privacy Act ("FERPA"),
20 U.S.C. § 1232g, which prohibits federal funding of schools that have a
practice of releasing education records to unauthorized persons.
Id. at 276-77. Relying on Wilder and Blessing, plaintiff
argued that there is "a relatively loose standard for finding
rights enforceable by § 1983." Id. at 282. A statute creates
such a right, he argued, "so long as Congress intended that the
statute `benefit' putative plaintiffs." Id.
After acknowledging that its opinions "might be read to suggest
that something less than an unambiguously conferred right is
enforceable by § 1983," id. at 282, the Court said: "We now
reject the notion that our cases permit anything short of an
unambiguously conferred right to support a cause of action
brought under § 1983." Id. at 283. Further, the Court
"reject[ed] the notion that [its] implied right of action cases
are separate and distinct from [its] § 1983 cases." Id. A
court's role, in both contexts, the Court said, is to "determine
whether Congress intended to create a federal right." Id.
(emphasis omitted). Thus, the Court concluded, "where the text
and structure of a statute provide no indication that Congress
intends to create new individual rights, there is no basis for a
private suit, whether under § 1983 or under an implied right of
action." Id. at 286. The Langlois and Wallace courts do not analyze this line of
cases in depth or remark on the Supreme Court's steady retreat
from Wilder. Moreover, though the Wallace court does discuss
Gonzaga, it concludes that the reasoning of the case is limited
to statutes enacted pursuant to Congress' spending power.
Wallace, 289 F. Supp. 2d at 718. But the opinion contains no
such limitation. Rather, it says that a statute can support a
section 1983 claim only if it unambiguously confers an individual
right, a standard that spending power statutes are highly
unlikely to meet. Gonzaga, 536 U.S. at 280-86.
Given the jurisprudence in this area, this Court is required to
follow the Wilder test as modified by Blessing and Gonzaga
and determine whether the text and structure of any of the
statutes cited by plaintiff indicate that Congress intended to
create enforceable rights.
The text and structure of the FHA clearly evince Congress'
intent that section 3608(e)(5) not confer an enforceable,
individual right. The statute contains an express right of action
that permits any "aggrieved person [to] commence a civil action . . .
not later than 2 years after the occurrence or the
termination of an alleged discriminatory housing practice . . .
to obtain appropriate relief with respect to such discriminatory
housing practice. . . ." 42 U.S.C. § 3613. The statute defines
"discriminatory housing practice" as an act that is unlawful
under sections 3604 [, which governs discrimination in the sale
or rental of housing], 3605 [, which governs discrimination in
residential real estate-related transactions], 3606 [, which
governs discrimination in provision of brokerage services] or
3617 [which prohibits coercion and intimidation of people who
exercise their FHA rights]. . . ." 42 U.S.C. § 3602(f). A housing
authority's failure to further fair housing is not a
discriminatory housing practice actionable under section 3613,
nor is it the subject of a separate cause of action in the
statute. The existence of an express cause of action in the FHA
that does not encompass section 3608(e)(5) strongly suggests that Congress did
not intend section 3608(e)(5) to create enforceable rights.
The language of section 3608, itself, bolsters that conclusion.
The title of that section is "Administration." Subsection e,
which is entitled "Functions of the Secretary," contains a
laundry list of the Secretary's duties, such as making studies
and publishing reports about the state of housing discrimination.
The duty upon which plaintiffs seize is fifth in this list: "[to]
administer the programs and activities relating to housing and
urban development in a manner affirmatively to further the
policies of this subchapter." 42 U.S.C. § 3608(e)(5). The fact
that this duty appears in a section devoted solely to HUD's
ministerial duties sharply undercuts plaintiffs' claim that
Congress intended that duty to confer enforceable rights on them.
Moreover, the right allegedly conferred by section 3608(e)(5)
is "`[too] vague and amorphous'" to be enforceable. See
Blessing, 520 U.S. at 340-41. That section does not define HUD's
duty to further fair housing or place any parameters on it. If
violations of that duty could be redressed via section 1983,
virtually any act or omission of HUD with respect to housing
would be subject to judicial review. Neither the federal nor the
state judicial system has the authority, resources or expertise
to become HUD's overseer, the position plaintiffs' interpretation
of section 3608(e)(5) would impose on them.
In short, there is nothing in section 3608(e)(5) in particular,
or the FHA in general, that suggests Congress intended for HUD's
duty to further fair housing to confer enforceable rights on
individuals like plaintiffs. Plaintiffs' section 1983 claims
based on that section are, therefore, dismissed with prejudice. Plaintiffs' section 1983 claims grounded in section
1437c-1(d)(15) of the QHWRA suffer the same fate. Section 1437c-1
requires public housing agencies, like CHA, to submit to HUD
every five years a plan that includes the agency's mission
statement for serving the needs of the low-income families in its
jurisdiction and a statement of the goals and objectives that
will enable it to serve those needs. 42 U.S.C. § 1437c-1(a). The
section sets forth the required contents of those plans,
including "[a] certification by the public housing agency that
[it] . . . will affirmatively further fair housing." Id. §
Like section 3608(e)(5) of the FHA, section 1437c-1(d)(15) of
the QHWRA does not suggest Congressional intent to confer
enforceable rights on plaintiffs. See id. The section says
nothing about a private right of action, and its focus is on
public housing agencies' responsibility to report to HUD, not on
their responsibilities to their tenants. Moreover, the duty QHWRA
imposes on CHA to further fair housing is, like HUD's FHA duty to
do the same, too vague to be enforced. Accordingly, plaintiffs'
section 1983 claims based on section 1437c-1(d)(15) are dismissed
The same is true for plaintiffs' claims grounded in Executive
Orders 11063 and 12982. Because those Orders simply reiterate
HUD's duty to affirmatively further fair housing, those orders
cannot support section 1983 claims.*fn8 Plaintiffs fare no better with their claims based on the
Housing Choice Voucher Program, 42 U.S.C. § 1437f(o). That
section appears in a chapter devoted primarily to establishing
the financial arrangements between HUD and public housing
authorities. See generally 42 U.S.C. § 1437, et seq. Section
1437f(o) authorizes the Secretary of HUD to "provide assistance
to public housing agencies for tenant-based assistance" based on
specified payment standards. 42 U.S.C. § 1437f(o)(1)(A), (B).
Among other things, that section sets the amount of the monthly
assistance payment to eligible families, sets eligibility
standards for participants and dictates the quality of the
housing covered by the program. See generally
42 U.S.C. § 1437f(o). That section does not create a private right of action
or contain any indication that Congress intended it to confer
enforceable rights on plaintiffs. Thus, plaintiffs' section 1983
claims based on section 1437f(o) are dismissed with prejudice.
Plaintiffs also seek section 1983 relief for defendants'
alleged violations of 42 U.S.C. § 1437d(1)(6) and (7). Those
sections require that public housing leases contain the following
[A]ny criminal activity that threatens the health,
safety, or right to peaceful enjoyment of the
premises by other tenants or any drug-related
criminal activity on or off such premises, engaged in
by a public housing tenant, any member of the
tenant's household, or any guest or other person
under the tenant's control, shall be cause for
termination of tenancy.
[W]ith respect to any notice of eviction or
termination, notwithstanding any State law, a public
housing tenant shall be informed of the opportunity,
prior to any hearing or trial, to examine any
relevant documents, records, or regulations directly
related to the eviction or termination.
42 U.S.C. § 1437d(1)(6), (7). Even if this section confers an enforceable right on
plaintiffs, an issue we do not decide, that right would be to
have a lease that contains the recited provisions. Plaintiffs
allege that Lakefront violated those lease provisions, not that
it failed to include them in its leases. (See Compl. ¶ 34.)
Thus, plaintiffs could not state viable section 1983 claims
against Lakefront for violating sections 1437(d)(1)(6) and (7)
even if those sections conferred enforceable rights on them. See
Edwards v. Dist. of Columbia, 821 F.2d 651, 653 n. 2 (D.C. Cir.
1987) (noting that "the only rights created by § 1437d(l) itself
are rights to a lease" that incorporates the enumerated
That leaves Thomas' section 1983 claims for violation of her
First, Fourth and Fourteenth Amendment rights. Plaintiff alleges
that these rights were violated when she was harassed, evicted
and arrested in retaliation for her publication of a newsletter
and denied access to relevant documents prior to a state-court
eviction proceeding. (See Compl. ¶ 34; Reply at 12.) Thomas
does not allege that NCSH, the City or CHA had any involvement in
those actions or that their policies or practices caused her
alleged injuries. See Iskander v. Vill. of Forest Park,
690 F.2d 126, 128 (7th Cir. 1982) (stating that both private and
public corporations can be held liable under section 1983 only if
their customs or policies caused the constitutional deprivation).
Thus, to the extent she asserts her First, Fourth and
Fourteenth Amendment claims against NCSH, the City or CHA those claims are
dismissed.*fn9 Thomas has also not alleged any basis for holding the
individual defendants personally liable for these claims.
"[S]ection 1983 creates a cause of action based on personal
liability and predicated upon fault; thus, liability does not
attach unless the individual defendant caused or participated in
[the wrongful conduct]." Rasche v. Vill. of Beecher,
336 F.3d 588, 597 (7th Cir. 2003) (quotation omitted). Thomas has not
alleged that defendants Butzen, Jahn, Dean or Wetmore personally
took any action to violate her rights. (See Compl. ¶ 6(1), (5),
(6), (8).) Any claims she asserts against those defendants in
their individual capacities are, therefore, dismissed.
Moreover, for the reasons stated above, if defendants Butzen,
Dean and Wetmore are sued only in their official capacities,
those claims must also be dismissed. See Graham,
473 U.S. at 165 (stating that official capacity claims are redundant of
claims against employer).
That leaves defendant Lakefront. To state viable section 1983
claims against this defendant, Thomas must allege that Lakefront,
acting under color of law, deprived her of a constitutional right
pursuant to one of its policies or customs. See
42 U.S.C. § 1983; Iskander, 690 F.2d at 128. Thomas alleges that CHA has
delegated its authority to provide low-income housing to
Lakefront and/or controls Lakefront's housing operations. (See
Compl. ¶¶ 19, 25.) Thus, she has sufficiently alleged that
Lakefront acted under color of state law. See Wade,
83 F.3d at 905.
She has not, however, alleged that Lakefront violated her
First Amendment rights pursuant to one of its policies or customs.
Though Thomas claims that Lakefront harassed, arrested and
evicted her for publishing a newsletter about the tenants'
concerns, (see Compl. ¶ 34; Reply at 12), she does not allege
that Lakefront has a policy of retaliating against tenants who
exercise their First Amendment rights. Absent such allegations,
Thomas' First Amendment claim must be dismissed. Her Fourteenth Amendment claim suffers the same fate. The
Fourteenth Amendment requires that "a person not be deprived of
property without notice and an opportunity for a hearing."
Siebert v. Severino, 256 F.3d 648, 659 (7th Cir. 2001)
(quotation omitted). The state-court eviction proceeding, in
which plaintiff participated, (see Defs.' Mem. Supp. Joint Mot.
Dismiss, Ex. B, 3/17/00 Order denying Thomas' motion to vacate
judgment of eviction),*fn10 provided her with all of the
process she was constitutionally due. See Johnson v. Ill. Dep't
of Public Aid, 467 F.2d 1269, 1273 (7th Cir. 1972) ("Our
examination of the Illinois Forcible Entry and Detainer Act . . .
indicates that it adequately provides the remaining plaintiffs
with procedural due process."). Thus, Thomas cannot state a
Fourteenth Amendment claim against Lakefront.
In her last section 1983 claim, Thomas alleges that Lakefront
wrongfully arrested her. (See Reply at 12.) An essential
element of a false arrest claim is the lack of probable cause.
Schertz v. Waupaca County, 875 F.2d 578, 581 (7th Cir. 1989).
Thomas alleges that Lakefront arrested her, or caused her to be
arrested, in retaliation for publishing a newsletter. (Reply at
12.) Moreover, she says Lakefront routinely causes its tenants to
be arrested on false charges. (Id. at 10.) Taken together,
those allegations are sufficient to state a section 1983 false
arrest claim against Lakefront.*fn11
To summarize: (1) Plaintiffs' claims contesting the operation of
Lakefront's proposed new building are not ripe and,
even if they were, plaintiffs have not alleged that
they have standing to pursue them. Accordingly, those
claims are dismissed for lack of subject matter
(2) Plaintiffs Richardson and Thomas have no standing
to assert any claims concerning the current operation
of Lakefront's current facilities. Thus, any such
claims they assert are dismissed for lack of subject
(3) The State of Illinois is immune from the claims
plaintiffs assert against it. Those claims, are,
therefore, dismissed for lack of subject matter
(4) Congresswoman Schakowsky is immune from
plaintiffs' claims. The claims asserted against her
are dismissed for lack of subject matter
(5) HUD is immune from any section 1983 damage claims
plaintiffs assert against it. Consequently, any such
claims are dismissed for lack of subject matter
(6) HUD does not act under color of state law. Thus,
any section 1983 claims plaintiffs assert against it
for non-monetary relief are dismissed with prejudice;
(7) Any section 1983 claims grounded in Section
3608(e)(5) of the FHA, section 1437c-1(d)(15) of the
QHWRA, the Housing Choice Voucher Program,
42 U.S.C. § 1437f(o), and Executive Orders 11063 and 12892 that
plaintiffs assert against Lakefront, NCSH, the City,
CHA, Wetmore, Dean, Butzen and Jahn are dismissed
(8) Any section 1982 claims plaintiffs assert against
NCSH, the City, Jahn, Butzen, Dean and Wetmore,
individually, are dismissed without prejudice;
(9) Any section 1982 claims plaintiffs assert against
Butzen, Dean and Wetmore in their official capacities
are dismissed with prejudice;
(10) Any section 1983 claims that Thomas asserts
against NCSH, the City or CHA or against Butzen,
Jahn, Dean or Wetmore in their personal capacities
for violations of her First or Fourth Amendment
rights are dismissed without prejudice; (11) Any section 1983 claims that Thomas asserts
against Butzen, Jahn, Dean or Wetmore in their
official capacities for violations of her First or
Fourth Amendment rights are dismissed with prejudice.
(12) Any section 1983 claim that Thomas asserts
against Lakefront for violations of her
First Amendment rights is dismissed without prejudice;
(13) Any section 1983 claims that Thomas asserts
against Lakefront, NCSH, the City, CHA, Butzen, Dean,
Jahn or Wetmore for violations of her
Fourteenth Amendment rights are dismissed with prejudice;
(14) Plaintiffs' request that the Court enjoin the
Chicago City Council and the Illinois Legislature
from enacting legislation with respect to Lakefront's
proposed new facility are stricken; and
(15) Defendant CHAC, which has not been served in the
year since this case was filed, is dismissed without
prejudice for lack of timely service.
The only claims that remain in this suit are Thomas' section 1982
claims against HUD, CHA and Lakefront and her section 1983 claim
against Lakefront for false arrest.
For the reasons stated above defendants' joint motion to
dismiss [doc. no. 49] is granted in part and denied in part.
Defendant CHAC is dismissed without prejudice for lack of timely
service. Plaintiffs have fourteen days from the date of this
Memorandum Opinion and Order to amend their complaint in
accordance with this Order. If plaintiffs do not do so within
that time period, the Court will assume they do not wish to
pursue the dismissed claims and will dismiss them with prejudice.
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