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THOMAS v. BUTZEN

September 26, 2005.

JANICE THOMAS and PLAINTIFFS Y and Z, Plaintiffs,
v.
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, 73 (1984).

  Discussion

  Anonymous Plaintiffs

  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 ...


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