Churney v. Chicago Housing Authority

Filing 23

MEMORANDUM Opinion and Order: CHA's motion to dismiss 12 is granted. Churney's complaint is dismissed without prejudice. Churney is granted leave to file a first amended complaint, if supported by the facts and warranted by the law, on o r before 3/1/13. The failure timely to file a first amended complaint will result in dismissal of Churney's claims with prejudice and termination of this case. If a first amended complaint is filed on or before 3/1/13, the CHA shall answer or otherwise plead by 3/15/13, and notice any motion for 3/19/13 at 9:00 am. The case is set for a status on 3/19/13 at 9:00 a.m. Signed by the Honorable James F. Holderman on 2/14/2013:Notice mailed by judge's staff (ntf, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
CHRIS CHURNEY,
Plaintiff,
v.
CHICAGO HOUSING AUTHORITY,
Defendant.

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No. 12 C 6864

MEMORANDUM OPINION AND ORDER
JAMES F. HOLDERMAN, Chief Judge:
Plaintiff Chris Churney alleges that the Chicago Housing Authority (“CHA”) violated the
Fair Housing Amendments Act of 1988 (“FHAA”), 42 U.S.C. § 3604(f) (Count I), the
Rehabilitation Act, 29 U.S.C. § 794 (Count II), and the Americans with Disabilities Act (“ADA”),
42 U.S.C. § 12132 (Count III), by revoking her rent subsidy after she was convicted of aggravated
sexual assault because of an incident she alleges was caused by her bipolar disorder. (Dkt. No. 1
(“Compl.”).) The CHA now moves to dismiss all three counts of Churney’s complaint. (Dkt. No.
12.) For the reasons explained below, that motion is granted.
FACTUAL BACKGROUND
The CHA, a municipal corporation of Illinois, administers the federal Housing Choice
Voucher (HCV) program to provide rental subsidies to low-income families. (Compl. ¶¶ 2, 6.)
Churney is a low-income individual who began receiving HCV funding in 1983, which she uses to
pay for an apartment in Chicago where she resides with her teenage daughter. (Id. ¶¶ 7-9.) Over
thirty years ago, Churney was diagnosed with bipolar disorder with psychotic effects. (Id.
¶¶ 15-16.) She has received treatment from a wide range of doctors and psychiatric institutions,

and has taken a variety of medications to control her illness. (Id. ¶ 16.) When not treated properly,
Churney’s bipolar disorder manifests itself through long sleepless periods, delusions, impaired
concentration, and other effects. (Id. ¶ 17.)
In mid to late 2005, Churney was transitioning between psychiatrists and was not taking
sufficient medication to control her bipolar disorder. (Id. ¶ 18.) As a result, in January 2006
Churney was having delusions, believed her body was being attacked spiritually, had difficulty
sleeping, and was worried that the world was coming to an end. (Id. ¶ 19.) After a five or six day
period of no sleep, on January 27 Churney was left alone in her apartment when her daughter left
for a sleepover. (Id. ¶ 20.) Because she did not want to be alone, Churney went to spend the night
at the house of a friend from her church. (Id.) During the night, Churney entered the room of the
friend’s teenage son. (Id. ¶ 21.) According to the complaint, “[a]lthough the son made sexual
advances towards her, Churney did not make any sexual advances towards him and left.” (Id.
¶ 21.) As a result of the encounter, Churney was arrested and charged with four counts of
aggravated sexual abuse. (Id. ¶ 23.) She pled guilty to one of the counts, was sentenced to two
years of probation, and was ordered to take a sex offender counseling course. (Id.) Because of the
conviction, Churney is classified as a lifetime sex offender in accordance with the Illinois Sex
Offender Registration Act, 730 ILCS § 150. (Compl. ¶ 23.)
The day after the incident of sexual abuse, Churney was involuntarily taken to the hospital,
where she was diagnosed as “acutely psychotic.” (Id. ¶ 22.) She stayed in the hospital for three
weeks receiving psychiatric care. (Id.) During the criminal proceedings against her, Churney was
hospitalized twice more for psychiatric care. (Id. ¶ 24.) Following the conviction, Churney has

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received mental health treatment from Trilogy, Inc., and Advocate Illinois Masonic Medical
Center, and her doctors indicate that she “has made a great commitment to understand and manage
her Bipolar Disorder since the incident.” (Id. ¶¶ 26-27.)
The CHA recertified Churney to participate in the HCV program several times following
her conviction. (Id. ¶¶ 28-29.) Nonetheless, on December 21, 2010, the CHA informed Churney
that it intended to terminate her participation in the HCV program because her conviction for a sex
crime and her registration as a lifetime sex offender put her in violation of CHA policies. (Id.
¶¶ 31, 33.) On August 2, 2011, the CHA held an informal hearing on the termination. (Id. ¶ 33.)
Churney did not dispute that CHA policy required her termination from the HCV program, but
instead argued that the CHA should make a reasonable accommodation for her disability under the
FHAA, the Rehabilitation Act, and the ADA. (Id. ¶ 34.) Churney’s proposed accommodation was
that she be granted an exception to the rule disqualifying sex offenders so long as she agrees to
submit written confirmation of ongoing treatment for her mental health problems to the CHA. (Id.
¶ 35.) That accommodation, Churney alleges, is similar to the accommodation the CHA provides
to drug and alcohol abusers, who must provide evidence of continued treatment to the CHA. (Id.
¶ 36.) On August 24, 2011, the CHA rejected Churney’s proposed accommodation and removed
her from the HCV program. (Id. ¶¶ 40, 43.)
LEGAL STANDARD
Under the Federal Rules of Civil Procedure, a complaint need contain only “a short and
plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2).
The complaint must “give the defendant fair notice of what the . . . claim is and the grounds upon
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which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson,
355 U.S. 41, 47 (1957)). Although “detailed factual allegations” are not required, “labels and
conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly,
550 U.S. at 555. The complaint must “include sufficient facts ‘to state a claim for relief that is
plausible on its face.’” Cole v. Milwaukee Area Tech. Coll. Dist., 634 F.3d 901, 903 (7th Cir. 2011)
(quoting Justice v. Town of Cicero, 577 F.3d 768, 771 (7th Cir. 2009)). “A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009). In ruling on a Rule 12(b)(6) motion, the court “construe[s] the . . . [c]omplaint in the
light most favorable to Plaintiff, accepting as true all well-pleaded facts and drawing all possible
inferences in his favor.” Cole, 634 F.3d at 903.
ANALYSIS
Churney does not dispute that the CHA’s policies require her termination because of her
conviction for a sex crime and her status as a sex offender. Instead, she alleges that her bipolar
disorder is a protected disability, and that her bipolar disorder caused the sexual conduct leading to
her conviction. Accordingly, she contends that the CHA’s decision to terminate her from the HCV
program because of her conviction constitutes unlawful discrimination on the basis of her
disability.
Specifically, Churney asserts that the CHA unlawfully discriminated against her by failing
to grant her a reasonable accommodation allowing her to stay in the HCV program despite her
bipolar disorder and her conviction. The FHAA, ADA, and Rehabilitation Act each contain a
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requirement of reasonable accommodation, and courts interpret the requirements similarly. See
Oconomowoc Residential Programs v. City of Milwaukee, 300 F.3d 775, 783 (7th Cir. 2002) (“The
requirements for reasonable accommodation under the ADA are the same as those under the
FHAA.”); Gile v. United Airlines, Inc., 95 F.3d 492, 497 (7th Cir. 1996) (“[T]he Rehabilitation
Act incorporates the ADA’s definition of reasonable accommodation.”); see also Wis. Cmty.
Servs., Inc. v. City of Milwaukee, 465 F.3d 737, 746-53 (7th Cir. 2006) (en banc) (surveying the
reasonable accommodation requirement of each of the three statutes). Under the reasonable
accommodation requirement, “a public entity must reasonably accommodate a qualified
individual with a disability by making changes in rules, policies, practices, or services when
needed.” Oconomowoc Residential Programs, 300 F.3d at 782-83.
To show entitlement to a reasonable accommodation, a plaintiff must plead and prove that
the requested accommodation is both reasonable and necessary. Id. at 783. To be reasonable, an
accommodation must be “both efficacious and proportional to the costs to implement it.” Id. at
784. Similarly, to be necessary, the accommodation must “‘affirmatively enhance a disabled
plaintiff’s quality of life by ameliorating the effects of the disability.’” Id. (quoting Dadian v.
Village of Wilmette, 269 F.3d 831, 838 (7th Cir. 2001)). Both the reasonable and necessary
elements therefore require that the requested accommodation effectively ameliorate the condition
caused by a disability that prevents the plaintiff from enjoying the benefits of the program
provided by the public entity.
Here, the concern underlying the CHA’s policy requiring the termination of sexual
offenders from the HCV program is the safety of the other residents living near Churney. That

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concern is legitimate, as the FHAA specifically provides that landlords need not provide
reasonable accommodations to tenants who “constitute a direct threat to the health or safety of
other individuals or whose tenancy would result in substantial physical damages to the property of
others.” 42 U.S.C. § 3604(f)(9). To succeed in her claim for a reasonable accommodation,
therefore, Churney must allege and ultimately prove that the accommodation she requested will
ameliorate the safety concern created by her bipolar disorder and her conviction for a sex crime.
See Super v. J. D’Amelia & Assocs., LLC, No. 3:09-cv-831, 2010 WL 3926887, at *5, *8 (D.
Conn. Sept. 30, 2010) (Underhill, J.) (“An extension of Section 8 benefits can serve as an
accommodation when there is evidence to support the plaintiff’s contention that continued rental
subsidies will effectively allow her to use and enjoy her dwelling without posing a threat to her
neighbors and the public.” (emphasis added)).
Churney does not allege that her requested accommodation—that she be granted an
exception to the CHA’s prohibition on sex offenders so long as she submits written confirmation
of ongoing monitoring and counseling for her bipolar disorder—will be effective in ameliorating
the risk that she will suffer another psychotic episode and threaten the safety of residents living
near her. The complaint does allege that “[s]ince Churney’s plea, she has been psychiatrically
stable” and has been receiving treatment from Trilogy, Inc., and Advocate Illinois Masonic
Medical Center. (Compl. ¶ 26.) It also alleges that “the medical professionals working with her
report that she has made a great commitment to understand and manage her Bipolar Disorder since
the incident.” (Id. ¶ 27.) Neither of those statements alleges that the accommodation will assist in
Churney’s treatment, however, or will make her any less likely to suffer a psychotic episode in the

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future.
To the contrary, Churney was receiving treatment even before the January 2006 incident,
and the complaint does not allege that her treatment after her conviction is substantially different
from the treatment before it, or that it is any more likely to prevent a psychotic episode. (Id. ¶ 16;
see also Dkt. No. 1, Ex. 4.) To be sure, the complaint alleges that Churney suffered the psychotic
episode while she was “transitioning between psychiatrists and was not on a full medication
regimen.” (Compl. ¶ 18.) But the proposed accommodation will not eliminate the risk that
Churney will again transition between psychiatrists and find herself in the same situation in the
future.
One could speculate that the requirement that Churney submit written confirmation to the
CHA of her ongoing treatment could provide her an additional incentive to continue her treatment
and thus ensure that she does not suffer another psychotic episode. Based on its “judicial
experience and common sense,” however, the court finds that possibility implausible. Iqbal, 556
U.S. at 679. The proposed accommodation provides no mechanism to ensure that Churney’s
representations to the CHA about her continued treatment are accurate, nor does it provide an
avenue for the CHA to address the situation if Churney ceases treatment. 1 More to the point,
Churney has not alleged that the accommodation in fact will make it any more likely that she will
continue to receive medical treatment or that she will avoid another psychotic attack that could put

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Presumably, Churney contemplates that the CHA would terminate her participation in
the HCV program if Churney ever failed to certify in writing that she was receiving treatment for
her bipolar disorder. There is no guarantee, however, that the CHA could terminate her
participation in the program before she suffered another psychotic attack.
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other residents at risk.
The absence of sufficient allegations about the effectiveness of the requested
accommodation distinguishes this case from Super, 2010 WL 3926887. In Super, the court denied
a motion to dismiss the housing discrimination claim of a mentally ill person whose rental subsidy
was terminated because she committed a crime at her residence allegedly because of her mental
illness. Id. at *1. The court held that the plaintiff’s request that the defendant grant her an exception
to its policies and extend her rental subsidy could be a reasonable accommodation under the
FHAA, ADA, and Rehabilitation Act. Id. at *7. The court reasoned that the proposed
accommodation was sufficient because the complaint alleged that the plaintiff “is seeking
psychiatric treatment that she was not previously receiving, and which she is compelled to receive
pursuant to a court order.” Id. at *7 (footnote omitted). The accommodation was sufficient only
because of those additional safeguards. By contrast, Churney has not alleged that she is receiving
new treatment, nor is her mental health treatment compelled by a court order. It is thus implausible
that Churney is now any less likely to pose a threat to the community in which she lives, or that the
proposed accommodation will be effective in lessening the threat.
The court stresses that it is not making any determination about whether Churney’s
requested accommodation, if it were accompanied by a plausible allegation that it would
effectively ameliorate Churney’s disability, is ultimately reasonable. That inquiry is “highly
fact-specific” and “requires balancing the needs of the parties.” Oconomowoc Residential
Programs, 300 F.3d at 784. It is thus not appropriate for the court to make that determination at the
motion to dismiss stage. Rather, the court holds that a necessary prerequisite to any finding of

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reasonableness is that the requested accommodation ameliorate the legitimate safety concerns
underlying the CHA’s decision to terminate Churney from the HCV program. In the absence of an
allegation to that effect, Churney has not adequately alleged a claim that she was denied a
reasonable accommodation.
Moreover, the court is skeptical that Churney can plausibly make the allegations necessary
to support her claim. The CHA’s written decision terminating Churney’s participation in the HCV
program summarizes the testimony the CHA received at the August 2, 2011, hearing. (Dkt. No. 1,
Ex. 5.) 2 Churney testified as follows:
She stated she does not really understand what caused the incident but she thinks it
was aggravated by the fact that she wasn’t taking her medication. She stated that it
is not in her control and sometimes when she has gotten sick it just happens out of
the blue. She stated she is not sure how to make sure similar events don’t occur but
she can try to keep her mental health in check by exercise, eating right, sleeping and
controlling stress. She stated that losing her housing is one of the triggers that
would send her into a tailspin. She stated that if she felt herself getting out of
control she would hope that she would turn to the medical professionals in her life
but that she doesn’t always see what leads up to it and when mania hits her it hits
her like a rocket. She stated that there’s no way anything like that would ever
happen again because it goes against her grain.
(Dkt. No. 1, Ex. 5, at 5 (emphasis added).) The decision then indicates that Churney also “stated
that when the incident happened she was receiving services from the same people she receives
services from now.” (Id.) That testimony suggests that Churney cannot allege that she was
receiving any additional treatment at the time of the CHA’s decision to terminate her. In addition,
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Because the CHA’s decision is attached to the complaint, is referred to in the complaint,
and is central to Churney’s claim, the court may consider it on a motion to dismiss. McCready v.
eBay, Inc., 453 F.3d 882, 891 (7th Cir. 2006). Of course, for purposes of the motion to dismiss, the
court will not accept as true all of the facts contained within the CHA’s decision. Instead, the court
will accept as true that the CHA’s decision was based on the factors referenced therein.
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it suggests that the proposed accommodation will not effectively ameliorate the danger that
Churney will suffer another psychotic episode that will put her neighbors and the public at risk.
Thus, although the court appreciates the arguments of Churney’s counsel and the court is granting
Churney leave to file a first amended complaint to attempt again to state a claim, if supported by
the facts and warranted by the law, she and her counsel should consider whether, in light of her
testimony at the hearing, Churney can make the necessary allegations consistent with Rule 11 of
the Federal Rules of Civil Procedure.
Finally, because the court is dismissing Churney’s complaint for the reason that Churney
has not sufficiently alleged that her proposed accommodation would be effective at ameliorating
the dangers caused by her disability, the court need not consider the CHA’s other arguments for
dismissal of the pending complaint. If Churney files a first amended complaint, the CHA is not
foreclosed from asserting those arguments, if it desires, in a motion to dismiss Churney’s first
amended complaint.
CONCLUSION
On the bases stated above, the CHA’s motion to dismiss (Dkt. No. 12) is granted.
Churney’s complaint is dismissed without prejudice. Churney is granted leave to file a first
amended complaint, if supported by the facts and warranted by the law, on or before 3/1/13. The
failure timely to file a first amended complaint will result in dismissal of Churney’s claims with
prejudice and termination of this case. If a first amended complaint is filed on or before 3/1/13, the
CHA shall answer or otherwise plead by 3/15/13, and notice any motion for 3/19/13 at 9:00 am.
The case is set for a status at that time.
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ENTER:

_______________________________
JAMES F. HOLDERMAN
Chief Judge, United States District Court
Date: February 14, 2013

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