Cynthia Herndon v. Housing Authority of South Ben, et al

Filing

Filed Nonprecedential Disposition PER CURIAM. AFFIRMED in part, VACATED in part, and REMANDED. Diane P. Wood, Chief Judge; Joel M. Flaum, Circuit Judge and Diane S. Sykes, Circuit Judge. [6797243-1] [6797243] [16-2821]

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NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted November 9, 2016 *
Decided November 14, 2016
Before
DIANE P. WOOD, Chief Judge
JOEL M. FLAUM, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 16-2821
CYNTHIA M. HERNDON,
Plaintiff-Appellant,

Appeal from the
United States District Court for the
Northern District of Indiana,
South Bend Division.

v.
HOUSING AUTHORITY OF
SOUTH BEND, INDIANA, and
JOANNE WATFORD,
Defendants-Appellees.

No. 3:15 CV 169
James T. Moody,
Judge.
ORDER

Cynthia Herndon, a public-housing tenant, appeals the dismissal of her
civil-rights suit against the Housing Authority of South Bend and its property manager,
Joanne Watford, asserting violations of the Equal Protection Clause; the Fair Housing
Act (“FHA”), 42 U.S.C. §§ 3601 et seq.; the Americans with Disabilities Act (“ADA”),
We have unanimously agreed to decide the case without oral argument because
the briefs and record adequately present the facts and legal arguments, and oral
argument would not significantly aid the court. See FED. R. APP. P. 34(a)(2)(C).
*

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42 U.S.C. §§ 12101 et seq.; the United States Housing Act, 42 U.S.C. §§ 1437 et seq.; and
Executive Orders 11063, 12892, and 13217. We affirm in part, vacate in part, and
remand.
Herndon alleged in her complaint that during an encounter late in 2014, Watford
racially discriminated against her and harassed her on account of her child-custody
issues. Because she is white and her male partner is black, Herndon believed that race
motivated the actions of Watford, who is also black, so in January 2015 Herndon filed a
racial-discrimination complaint with the Indiana Human Rights Commission. On the
same day that she filed her complaint with the Commission, Watford and the Housing
Authority allegedly retaliated against her in violation of the FHA by conducting
ongoing “racially motivated” inspections of her unit and failing to provide repair
services for her unit. The Commission later issued a finding of no probable cause on her
racial-discrimination complaint.
Herndon also asserted that the Housing Authority discriminated and retaliated
against her with regard to her lease recertification in 2015. Because of a time conflict she
had, the Housing Authority allowed Herndon to reschedule her recertification
appointment; she missed the new appointment, however, and the Housing Authority
notified her the next day that it was terminating her lease on April 25. The notice cited
her failure to attend the recertification appointment and provide required
documentation. Herndon then filed this suit against Watford and the Housing
Authority.
Soon afterward Herndon asked the magistrate judge to recruit counsel for her.
She sought the recruitment of counsel four times. The magistrate judge denied each
request on grounds that she appeared competent to try the case herself. Believing that
the court’s refusal to recruit counsel for her reflected bias, she moved to recuse the
judge. He denied that motion, explaining that recusal was not proper when the movant
infers bias from court rulings without any extrajudicial evidence of bias.
The district judge dismissed Herndon’s suit for failure to state a claim. Not only
were Herndon’s allegations conclusory, the judge concluded, but she failed to plead
facts that would allow an inference that the defendants intentionally discriminated
against her based on a protected ground in violation of the FHA, the ADA, or the Equal
Protection Clause. Her ADA and FHA claims of discrimination also failed, the judge
added, because she did not assert that she was “disabled” as defined by those statutes.
See 42 U.S.C. § 3602(h); id. § 12102(3)(A). Nor could she state a retaliation claim under
the FHA because any causal link between her eviction and her complaint with the

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Human Rights Commission was “attenuated” by her failure to complete the
recertification process. And she failed to state a claim with regard to any violation of
Executive Orders 11063, 12892, and 13217, which do not create a private right of action.
Finally, she could not state a claim under the United States Housing Act, 42 U.S.C.
§§ 1437 et seq., because public-housing agencies must give tenants only 30 days’ written
notice of lease termination—not 90 as she alleged, see id. § 1437d(l)(4)(C)—a timeline
that was satisfied by the defendants’ notice.
On appeal Herndon primarily challenges the district court’s ruling that she did
not allege sufficient facts to state a claim of racial discrimination. Indeed, the pleading
standard for simple claims of racial or sex discrimination is “minimal.” Tamayo v.
Blagojevich, 526 F.3d 1074, 1084 (7th Cir. 2008). “[O]nce a plaintiff alleging illegal
discrimination has clarified that it is on the basis of her race, there is no further
information that is both easy to provide and of clear critical importance to the claim.”
EEOC v. Concentra Health Servs., Inc., 496 F.3d 773, 782 (7th Cir. 2007). Herndon’s
complaint describes the kind of discrimination that she believes occurred (racial), the
timing of the alleged discrimination (December 2014 until May 2015), and the identity
of those responsible (Watford and the Housing Authority). She adds that the
inspections of her unit were “racially motivated” and that the lease recertification
process was done “in pretext of race.” The district court erred when it required
Herndon to plead more specific facts that would establish the defendants’
discriminatory intent because nothing more was required for Herndon to state a claim
of racial discrimination. See Swanson v. Citibank, N.A., 614 F.3d 400, 405 (7th Cir. 2010)
(holding that allegations of racial discrimination by Citibank and its manager in
connection with plaintiff’s efforts to obtain a loan sufficiently stated a claim under the
FHA).
Herndon also challenges the district court’s dismissal of her retaliation claim
under the FHA. In order to state a retaliation claim, she must allege that the defendants
“coerced, threatened, intimidated, or interfered with her on account of her protected
activity under the FHA.” White v. U.S. Dep’t of Hous. & Urban Dev., 475 F.3d 898, 907 (7th
Cir. 2007) (quotation marks and alterations omitted). We agree with Herndon that this
claim was wrongly dismissed. The district court imposed a higher pleading burden by
requiring her to “show[] that (1) she engaged in a protected activity; (2) defendants
subjected her to an adverse action; and (3) a causal link exists between the protected
activity and the adverse action.” But that is Herndon’s burden at summary judgment.
See, e.g., Bloch v. Frischholz, 587 F.3d 771, 783 (7th Cir. 2009) (en banc) (reviewing a grant
of summary judgment). Herndon alleged all that she needed to when she wrote that the

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defendants retaliated against her by using “intimidating harassments and threats to
terminate [her] lease,” threatening eviction in response to her complaint to the Human
Rights Commission, and performing “repeated housing inspections, at times twice a
month.” These allegations, if proven, could show that her rights under the statute were
violated, and that is all that is required of her at this stage. See Skinner v. Switzer, 562
U.S. 521, 530 (2011).
Herndon also challenges the district court’s repeated refusal to recruit counsel,
maintaining that her indigence entitled her to counsel as a matter of law. But there is no
constitutional or statutory right to counsel in civil cases. See Olson v. Morgan, 750 F.3d
708, 711 (7th Cir. 2014); Pruitt v. Mote, 503 F.3d 647, 654 (7th Cir. 2007) (en banc). The
magistrate judge here acted within his discretion when he denied Herndon’s requests:
He considered Herndon’s education and the relatively straightforward nature of her
claims. We see no reason to disturb the finding that Herndon was competent to litigate
her case, especially given the judge’s observation that she was able to file motions with
the court, serve papers on opposing counsel, research relevant law, and litigate other
cases simultaneously.
Lastly, Herndon generally challenges the denial of her motion to recuse the
magistrate judge. She asserts that the judge was biased against her because he denied
her requests for counsel. But unfavorable rulings alone rarely suffice to establish judicial
bias or misconduct. Liteky v. United States, 510 U.S. 540, 555 (1994); Brokaw v. Mercer
County, 235 F.3d 1000, 1025 (7th Cir. 2000).
We have considered Herndon’s other arguments and none has merit.
AFFIRMED in part, VACATED in part, and REMANDED.