Johnson v. Flannery

Filing 17

MEMORANDUM Opinion and Order; The Court strikes Johnson's motion to amend 16 and dismisses this suit with prejudice. The Court has given Johnson ample opportunity to state a claim upon which relief can be granted. He has not done so. Civil case terminated. See the attached for details. Signed by the Honorable Iain D. Johnston on 1/11/2022: Mailed notice (yxp, )

Case: 3:21-cv-50421 Document #: 17 Filed: 01/11/22 Page 1 of 5 PageID #:37

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
WESTERN DIVISION
Richard Johnson,
Plaintiff,

Case No. 3:21-cv-50421

v.

Honorable Iain D. Johnston

Barry Flannery,
Defendant.

MEMORANDUM OPINION AND ORDER
Plaintiff Richard Johnson brings this retaliation suit against his landlord,
Barry Flannery, under the Fair Housing Act, 42 U.S.C. § 3601, et seq. Because the
Court granted Johnson’s motion to proceed in forma pauperis, the Court is obligated
to screen his complaint for frivolity, for failure to state a claim, and for pursuing
damages against an immune defendant. 28 U.S.C. § 1915(e)(2)(B).
In an effort to effectuate that obligation, the Court has repeatedly instructed
Johnson that his complaint is deficient and instructed him to amend. Even though
the Court has been clear that Johnson was ordered to amend his complaint,
Johnson has consistently filed motions to amend his complaint. That is not the
same thing as actually filing an amended complaint, as he was instructed to do.
Nevertheless, even if the Court were to construe his “motions” to amend as actual
amended complaints, he has failed (repeatedly) to state a claim on which relief can
be granted.

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Johnson’s original complaint alleged that his landlord had refused to make
necessary repairs even though he was ordered to do so by the health department.
Dkt. 1. He then filed a motion to amend his complaint on November 9, 2021, which
the assigned magistrate judge struck because he was already granted leave to
amend. Dkts. 4, 5. The next day, Johnson filed an amended complaint. That
amended complaint merely alleged that Flannery “is in violation of fair housing act
for building codes and health and safety issues.” Dkt. 6, at 4. He then filed another
motion to amend the complaint two days later, which the magistrate judge again
struck as duplicative.
Undeterred, Johnson filed another motion to amend the complaint the next
day, in which he expressed confusion over what part of the complaint needed to be
amended. Dkt. 9. That same day, this Court explained that even though Johnson
cited the Fair Housing Act, he had not alleged that he was discriminated against or
that his landlord otherwise violated the Fair Housing Act. The Court further
explained that Johnson’s allegations amounted to a local landlord-tenant dispute,
which should be filed in state court, not federal court. Still, the Court gave Johnson
more time (until December 10, 2021) to amend his complaint to allege a violation of
the Fair Housing Act or to stipulate to dismissal without prejudice to refile in state
court. Dkt. 10.
Notwithstanding the order to amend his complaint, Johnson again filed a
motion to amend, rather than an actual amended complaint. Dkt. 11. In that
motion, he further explained that his landlord had discrimination against him and

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retaliated against him because he called a government agency seeking repairs on
the property. He explained that Flannery had told Johnson to “get out the [sic]
because I am just the black people but I am not black person I the plaintiff Richard
Johnson is very much white and the defendant kept calling me black.” Dkt. 11. The
motion to amend further reiterated that Flannery was in violation of building codes
and health and safety regulations. Id.
In response, the Court again explained that Johnson did not need to file a
motion to amend, that the Court in fact ordered him to amend his complaint to
include all of his allegations. Dkt. 12. The Court further explained that the
allegations (even considering those in the motions) failed to state a claim under the
Fair Housing Act. Id.
Notwithstanding the clarity of the Court’s order, Johnson filed another
motion to amend his complaint. Dkt. 13. In that motion, he explained that Flannery
used a racial slur and called him a person of color many times, even though Johnson
is white. He further noted that this was happening because of Johnson’s complaint
to the government agency about Flannery’s failure to make repairs on the property.
The same day, the Court again explained that Johnson did not need to file a motion
to amend his complaint, and that he was ordered to do so, and has shown that he
knows how. Dkt. 14. The Court further noted that the December 10, 2021, deadline
remained in place and Johnson needed to amend by that date. Furthermore, the
Court directed him to the Court’s “Information for People without Lawyers”
webpage for advice on how to continue with the litigation. Id.

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By December 30, 2021, Johnson had still failed to amend his complaint. The
Court again explained that his “motions” to amend were not actual amendments,
and again extended his deadline to file a complaint that states a claim. The Court
gave him until January 21, 2022. Dkt. 15. Johnson has now filed another motion to
amend his complaint, notwithstanding the repeated instruction that he does not
need to ask permission to do what the Court has ordered him to do.
In that latest motion to amend, Johnson insists that Flannery retaliated
against him in violation of the Fair Housing Act because Johnson called the
government agency about the living conditions of the rental property. Dkt. 16. As
Johnson sees it, Flannery retaliated against Johnson for exercising his rights under
the Fair Housing Act. The Fair Housing Act protects tenants from retaliation:
It shall be unlawful to coerce, intimidate, threaten, or interfere with any
person in the exercise or enjoyment of, or on account of his having
exercised or enjoyed, or on account of his having aided or encouraged
any other person in the exercise or enjoyment of, any right granted or
protected by [42 U.S.C. §§ 3603, 3604, 3605, or 3606].
42 U.S.C. § 3617. Section 3603 provides for certain exceptions and definitions.
Section 3606 is inapplicable here because it deals with brokerage services. Sections
3604 and 3605 prohibit landlords from refusing to rent or sell property, or otherwise
discriminate, based on a person’s race, color, religion, sex, familial status, or
national origin. If a landlord retaliates against a tenant or prospective tenant for
exercising their rights under those provisions, then that person may have a
retaliation claim under the Fair Housing Act. Wetzel v. Glen St. Andrew Living
Cmty., LLC, 901 F.3d 856, 868 (7th Cir. 2018) (To prove retaliation, a plaintiff must

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show that: (1) she engaged in protected activity; (2) she suffered an adverse action;
and (3) there was a causal connection between the two.”). “Like all anti-retaliation
provisions, it provides protections not because of who people are, but because of
what they do.” Id.
Johnson, however, has not alleged that he was retaliated against for
exercising one his rights under one of those provisions. Instead, he alleges that he
was retaliated against for reporting Flannery to the local health department for
failure to provide appropriate living conditions. That may be retaliation, but it is
not retaliation under the Fair Housing Act. And Johnson’s references to racial
language from Flannery do not save his claim. Johnson has alleged that he is not
black. He explained to the Court that he is white, and Flannery has called him
black. That is not enough for retaliation, which focuses not on who the plaintiff is,
but what he did. Wetzel, 901 F.3d at 868. Because what Johnson did is not a
protected activity under the Fair Housing Act, the alleged retaliation from Flannery
is not cognizable under the Fair Housing Act’s anti-retaliation provision.
Thus, the Court strikes Johnson’s motion to amend [16] and dismisses this
suit with prejudice. The Court has given Johnson ample opportunity to state a claim
upon which relief can be granted. He has not done so. Civil case terminated.

Date: January 11, 2022
___________________________
Honorable Iain D. Johnston
United States District Judge
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