Sheikh v. Lichtman et al

Filing 77

MEMORANDUM Opinion Signed by the Honorable Samuel Der-Yeghiayan on 7/25/2012.(mr, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
ZAFAR SHEIKH

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Plaintiff,
v.
MARC LICHTMAN, et al.,
Defendants.

No. 11 C 2334

MEMORANDUM OPINION
SAMUEL DER-YEGHIAYAN, District Judge
This matter is before the court on Defendant Marc Lichtman’s (Lichtman),
Defendant Glen Bernfield’s (Bernfield), Defendant Bennett Klasky’s (Klasky),
Defendant John Peterson’s (Peterson), Defendant David Waxman’s (Waxman),
Defendant David Hoffman’s (Hoffman), Defendant Linda Sloan’s (Sloan),
Defendant Lee Smith’s (Smith), Defendant Jason Berry’s (Berry), Defendant
Michael Belsky’s (Belsky), Defendant Nancy Rotering’s (Rotering), and Defendant
City of Highland Park’s (City) (collectively referred to as “City Defendants”) motion
to dismiss. For the reasons stated below, the court denies in part and grants in part
the motion to dismiss.

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BACKGROUND
In his pro se amended complaint, which the court liberally construes, Sheikh
alleges that he purchased certain property (Property) located in the City from the
County of Lake (County) based on allegedly false representations made by the
County and the City regarding the Property. Sheikh also alleges that, on the basis of
Sheikh’s race, religion, and national origin, the City has failed to timely approve his
application to consolidate the lots he purchased or to grant him routine zoning
variances that he has requested. In addition, Sheikh alleges that an employee of the
City made libelous and defamatory comments about Sheikh during a public hearing.
Sheikh brought a claim against the County alleging a violation of the Racketeering
Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § 1961 et seq., claims
against City Defendants alleging violations of 42 U.S.C. § 1981 (Section 1981), 42
U.S.C. § 1982 (Section 1982), 42 U.S.C. § 1983 (Section 1983), and the Fair
Housing Act (FHA), 42 U.S.C. § 3601 et seq., and claims against the City for the
violation of a consent decree and for defamation.
The County moved to dismiss the RICO claim brought against it, City
Defendants moved to dismiss the Section 1983 claims brought against them, and the
City moved to dismiss the claim relating to the consent decree and the claim for
defamation brought against it. In a memorandum opinion dated April 19, 2012
(Memorandum Opinion), the court dismissed the RICO claim brought against the
County. The court also dismissed all Section 1983 claims brought against Sloan,
Smith, Barry, and Belsky; all Section 1983 claims brought against the other City
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Defendants, other than the Fourteenth Amendment equal protection and substantive
due process claims; and the claims brought against the City relating to the consent
decree and for defamation. City Defendants now move for dismissal of the Section
1981, Section 1982, and FHA claims brought against them, or alternatively,
clarification regarding whether such claims against Sloan, Smith, Barry, and Belsky
are dismissed.

LEGAL STANDARD
In ruling on a motion to dismiss brought pursuant to Federal Rule of Civil
Procedure 12(b)(6) (Rule 12(b)(6)), a court must “accept as true all of the allegations
contained in a complaint” and make reasonable inferences in favor of the plaintiff.
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007); Thompson v. Ill. Dep’t of
Prof’l Regulation, 300 F.3d 750, 753 (7th Cir. 2002). To defeat a Rule 12(b)(6)
motion to dismiss, “a complaint must contain sufficient factual matter, accepted as
true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 129
S.Ct. 1937, 1949 (2009)(internal quotations omitted)(quoting in part Twombly, 550
U.S. at 570). A complaint that contains factual allegations that are “merely
consistent with a defendant’s liability . . . stops short of the line between possibility
and plausibility of entitlement to relief.” Iqbal, 129 S.Ct. at 1949 (internal quotations
omitted).

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DISCUSSION
In his amended complaint, Sheik references Section 1981, Section 1982, and
the FHA. However, since Sheikh did not invoke the provisions of Section 1981,
Section 1982, or the FHA in the various “Counts” laid out in his amended complaint,
City Defendants did not address such claims in their original motion to dismiss. In
the instant motion, City Defendants argue that the Section 1981, Section 1982, and
FHA claims should be dismissed because Sheikh has not alleged sufficient facts to
state a claim under Section 1981, Section 1982, or the FHA. Alternatively, City
Defendants argue that the Section 1981, Section 1982, and FHA claims brought
against Sloan, Smith, Berry and Belsky should be dismissed, since Shiekh has not
alleged facts suggesting that they were personally involved in any acts of
discrimination.
To state a claim under Section 1981 or Section 1982, a plaintiff must allege
“that (1) [he is a member] of a racial minority; (2) the defendant had an intent to
discriminate on the basis of race; and (3) the discrimination concerned one or more
of the activities enumerated in the statute. . . .” Morris v. Office Max, Inc., 89 F.3d
411, 413-14 (7th Cir. 1996). Section 1981 provides that “[a]ll persons within the
jurisdiction of the United States shall have the same right in every State and Territory
to make and enforce contracts,” which “includes the making, performance,
modification, and termination of contracts, and the enjoyment of all benefits,
privileges, terms, and conditions of the contractual relationship.” 42 U.S.C. §
1981(a) and (b). Section 1982 provides that “[a]ll citizens of the United States shall
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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.”
42 U.S.C. § 1982. In addition, pursuant to 42 U.S.C. § 3604(a) (Section 3604(a)) of
the FHA, it is unlawful “[t]o refuse to sell or rent after the making of a bona fide
offer, or to refuse to negotiate for the sale or rental of, or otherwise make unavailable
or deny, a dwelling to any person because of race, color, religion, sex, familial status,
or national origin.” 42 U.S.C. § 3604(a).
Section 1981 and Section 1982 have been broadly construed to apply
whenever there is alleged interference with a contractual right or a property right on
the basis of racial discrimination. See Shaikh v. City of Chicago, 341 F.3d 627, 630
(7th Cir. 2003)(discussing broad applicability of Section 1981 and Section 1982 to
claims alleging interference with contractual or property rights on the basis of racial
discrimination); City of Memphis v. Greene, 451 U.S. 100, 120-21 (1981)(stating that
Section 1982 must be construed “to protect not merely the enforceability of property
interests acquired by [non-white] citizens but also their right to acquire and use
property on an equal basis with white citizens”). Similarly, Section 3604(a) has been
broadly construed to “prohibit[] both direct discrimination and practices with
significant discriminatory effects,” and therefore “courts have construed the phrase
‘otherwise make unavailable or deny’ in [Section 3604(a)] to encompass mortgage
‘redlining,’ insurance redlining, racial steering, exclusionary zoning decisions, and
other actions by individuals or governmental units which directly affect the
availability of housing to minorities.” South-Suburban Housing Center v. Greater
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South Suburban Bd. of Realtors, 935 F.2d 868, 882 (7th Cir. 1991)(quoting
Southend Neighborhood Improvement Association v. County of St. Clair, 743 F.2d
1207, 1209-10 (7th Cir. 1984)).
Sheikh has alleged that Lichtman, Bernfield, Klasky, Peterson, Waxman,
Hoffman, Rotering, and the City have refused to approve his Consolidation
Application or grant him any of the zoning variances that he has requested. Sheikh
has also alleged in detail the various delays and roadblocks he has allegedly
encountered while trying to get approval of his Consolidation Application and while
trying to obtain the zoning variances he has requested. Sheikh has further alleged
that the relief he requested from the Zoning Board of Appeals (ZBA) is regularly
granted to others and that he has not been granted the same relief by the ZBA based
on his race, religion, or national origin. In addition, Sheikh has alleged that he was
instructed by the ZBA to fire his Indian architect and hire a new architect. Such facts
are sufficient to state claims under Section 1981, Section 1982, and Section 3604(a)
of the FHA.
However, as discussed in detail in the Memorandum Opinion, Sheikh has not
alleged any facts to suggest that Sloan, Smith, Barry, or Belsky were directly
involved in any of the discriminatory acts alleged in the complaint. See Smith v.
Bray, 681 F.3d 888, 899 (7th Cir. 2012)(indicating that under both Section 1981 and
Section 1983, “individual liability . . . is appropriate where the individual defendant
caused or participated in a constitutional deprivation”)(citation omitted)(internal
quotation omitted); Musikiwamba v. ESSI, Inc., 760 F.2d 740, 753 (7th Cir.
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1985)(imposing personal liability under Section 1981 only if the plaintiff alleges that
the individual himself “participated in the actual discrimination”). Therefore, the
Section 1981, Section 1982, and FHA claims brought against Sloan, Smith, Barry,
and Belsky are dismissed.

CONCLUSION
Based on the foregoing analysis, the court denies in part City Defendants’
motion to dismiss and grants City Defendants’ motion to dismiss with respect to the
Section 1981, Section 1982, and FHA claims brought against Sloan, Smith, Berry,
and Belsky.

___________________________________
Samuel Der-Yeghiayan
United States District Court Judge
Dated: July 25, 2012

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