Schlessinger v. The Chicago Housing Authority et al

Filing 125

MEMORANDUM Opinion and Order Signed by the Honorable Joan B. Gottschall on 7/28/2016. Mailed notice (mjc, )

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
DAVID SCHLESSINGER,

)
)
Plaintiffs,
)
)
v.
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)
THE CHICAGO HOUSING AUTHORITY, )
JESSICA PORTER (in her individual
)
capacity), and KENETH LOVE (in his
)
individual capacity),
)
)
Defendants.
)

Case No. 12-cv-3733
Judge Joan B. Gottschall

MEMORANDUM OPINION & ORDER
Plaintiff David Schlessinger (“Schlessinger”) filed this action alleging a violation of his
civil rights under the First and Fourteenth Amendments pursuant to 28 U.S.C. § 1983 against
Defendants Chicago Housing Authority (“CHA”), Jessica Porter (“Porter”), and Kenneth Love
(“Love”) (collectively, “Defendants”). This court granted Defendants’ motion for summary
judgment, dismissing the action with prejudice. Presently, Defendants move for an award of
sanctions pursuant to 28 U.S.C. § 1927 and an award of attorneys’ fees and costs as the
prevailing party under 42 U.S.C. § 1988(b). For the reasons set forth below, the court denies
Defendants’ motion.
I.

BACKGROUND

As noted, Schlessinger filed a § 1983 action alleging that Defendants violated his First
and Fourteenth Amendment rights by retaliating against him for opposing their allegedly
improper conduct. 1 Schlessinger is a landlord who participated in the Housing Choice Voucher
(“HCV”) program, the federal government's Section 8 program that provides assistance to renters
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A more detailed recounting of the facts can be found in the Order granting Defendants’ motion for summary
judgment. See Schlessinger v. Chicago Housing Authority, 130 F.Supp.3d 1226 (N.D. Ill. 2015).

in the private market. Under the HCV program, once a program participant has located an
approved rental unit, a local public housing agency, such as CHA, pays the landlord a rent
subsidy. Schlessinger entered the HCV program in 2005, when CHA signed a Housing
Assistance Payment (“HAP”) Contract with him, so that he could lease one of his units to a
program participant.
One of the requirements a landlord must satisfy in order to participate in the HCV
program is the successful completion of a housing inspection on the proposed rental unit. HUD
mandates that all properties pass an inspection before the HAP Contract is signed and at least
once annually during the term of the contract. The standards for an inspection are HUD's
“Housing Quality Standards” (“HQS”), which refer to the combination of both HUD and CHA's
established requirements. CHA inspectors, comprised of employees and independent
contractors, are trained to inspect properties to determine whether they meet the HQS. The
housing inspections on Schlessinger’s properties and Schlessinger’s criticisms of the inspections
form the basis of his complaints.
Schlessinger filed his initial Complaint on May 15, 2012 asserting numerous federal and
state claims.2 [Compl., ECF No. 1.] Defendants responded to Schlessinger’s Complaint by
filing a motion to dismiss pursuant to Federal Rule of Civil Procedure (“Rule”) 12(b)(6), which
was granted by the court on November 13, 2012. The court granted Schlessinger leave to replead his First Amendment and supplemental state claims. Schlessinger subsequently filed his
Amended Complaint (“FAC”) on December 12, 2012. [FAC, ECF No. 27.] Defendants once
again moved to dismiss Schlessinger’s FAC pursuant to Rule 12(b)(6). On June 3, 2013, the
court granted Defendants’ motion in part and denied it in part. More specifically, the court
2

Schlessinger filed a Complaint and Amended Complaint in the Circuit Court of Cook County, Illinois (“state court
action”) arguing that the CHA breached its HAP contracts with him by not paying rent subsidies that he claimed
were owed. The state court action was voluntarily dismissed on May 8, 2012.

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dismissed Schlessinger’s Monell liability claims based on express policy or widespread practices
but allowed Schlessinger an opportunity to re-plead his Monell claim if he could include
allegations of retaliation by someone with final policy-making authority with CHA. [6/3/13
Order, ECF No. 45.] Moreover, the court denied Defendants’ motion to dismiss with respect to
Schlessinger’s First Amendment claim against CHA employees Jessica Porter and Kenneth
Love.
Schlessinger filed his Second Amended Complaint (“SAC”) consistent with the Monell
instructions set forth in the court’s June 3, 2013 order. Defendants answered the SAC on
November 19, 2013, and the parties engaged in discovery. After the completion of discovery,
Defendants filed their Motion for Summary Judgment. In their motion, Defendants argued that
Schlessinger’s supposed protected speech concerned only his own private interests and was,
therefore, unprotected by the First Amendment. The court agreed and granted Defendants’
motion. [9/16/15 Order, ECF No. 115.]
In the order granting summary judgment in favor of Defendants, the court noted that
Schlessinger violated Local Rule (“LR”) 56.1, which allows a maximum of 40 statements of
additional facts by filing 109 statements. Schlessinger also violated LR 56.1 by improperly
denying many of Defendants’ statements of facts. Finally, Schlessiner’s memorandum in
support of his response in opposition to Defendants’ motion for summary judgment insufficiently
cited to the parties’ LR 56.1 statements of facts. As a result, the court deemed as admitted all of
Defendants’ statements of facts that were supported by the record.
Defendants have filed the instant motion for attorneys’ fees pursuant to 28 U.S.C. § 1988
as a “prevailing party” and for sanctions pursuant to § 1927.
II.

ANALYSIS

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Under § 1988, the prevailing party in a § 1983 action can be awarded attorneys’ fees.
The award is within the court’s discretion, but “prevailing defendants have a much harder row to
hoe than do prevailing plaintiffs.” Roger Whitemore’s Auto. Servs., Inc. v. Lake County, 424
F.3d 659, 675 (7th Cir. 2005). A prevailing defendant “may be entitled to fees only in cases in
which the plaintiff’s action was frivolous, unreasonable, or groundless.” Id. A frivolous suit is
one that has “no reasonable basis, whether in fact or in law.” Id. (quotation omitted).
The court declines to award fees to Defendants here. Although the court granted
summary judgment in favor for Defendants, the court does not find the allegations in
Schlessinger’s SAC to be frivolous. Although Schlessinger’s claims were weak and did not
survive Defendants’ motion for summary judgment, “a weak case does not a frivolous case
make.” Roger Whitemore’s, 424 F.3d at 676. Indeed, Schlessinger’s “theory of the case was not
so lacking in reasonableness that it should be deemed frivolous.” Id. Further, Schlessinger’s
improper summary judgment submissions are not evidence of ill intent or a frivolous claim.
Mellenthin v. SBC-Ameritech, 2008 WL 4442590, at *12 (N.D. Ill. Sept. 29, 2008) (“This court,
while understanding of [defendant’s] frustration with the careless work on the part of [the
plaintiff’s] attorney, does not view attorneys who file sloppy summary judgment responses on
the same level as attorneys who knowingly pursue frivolous legal claims, even after having the
inadequacies highlighted for them by opposing counsel.”).
Defendants cite a number of actions taken and statements made by Schlessinger that they
argue demonstrate improper intent on behalf of Schlessinger in pursuing his claims. However, in
reviewing these statements and actions cited by Defendants, the court finds that, while they were
potentially overzealous in tone, they were not unreasonable or vexatious. For example,
Schlessinger’s statements to Defendants “reminding” them of the pending lawsuit and warning

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that abatement of his units would “continue to result in further in depth litigation, including more
depositions if necessary” are not evidence of improper motive or conduct. While Schlessinger’s
evidence was too weak for the court to infer retaliatory motive and Schlessinger failed to present
sufficient evidence to support his claims, these allegations were not frivolous. Thus, the court
declines to award attorneys’ fees for Defendants pursuant to § 1988.
Similarly, the court declines to award attorneys’ fees pursuant to § 1927. Section 1927
gives the court discretion to require an attorney who “unreasonably and vexatiously” multiplies
the proceedings to “satisfy personally the excess costs, expenses, and attorney’s fees reasonable
incurred because of such conduct.” 28 U.S.C. § 1927. The court has already found that
Schlessinger’s action was not frivolous, groundless, or unreasonable. Further, Defendants have
not elucidated how Schlessinger unreasonably or vexatiously multiplied the proceedings in this
case. Schlessinger’s original complaint was dismissed by the court and he was given an
opportunity to re-plead. Schlessinger filed his FAC, which was also dismissed in part.
Schlessinger filed his SAC in compliance with the court’s order dismissing his FAC. The SAC
was answered by Defendants, and ultimately dismissed after Defendants moved for summary
judgment. Although Schlessinger was unable to put forth enough evidence to support his claim,
the court found that portions of his complaint were well-pled. Judy v. Blatt, 2010 WL 431484, at
*7 (N.D. Ill. Jan. 29, 2010) (“The court’s finding that portions of [plaintiff’s] complaint are wellpled disposes of [defendant’s] argument that this case was brought unreasonably or
vexatiously.”). Accordingly, Defendants’ request for fees pursuant to § 1927 is denied.
III.

CONCLUSION

For the reasons set forth above, Defendants’ motion for attorneys’ fees and motion for
sanctions [117] is denied.

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Date: July 28, 2016

/s/
Joan B. Gottschall
United States District Judge

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