Money v. Kendallville Place Apartments, Phase II, LLC

Filing 32

OPINION AND ORDER GRANTING 27 MOTION (First) for Summary Judgment by Defendant Kendallville Place Apartments Phase II LLC. The state law claim is DISMISSED WITHOUT PREJUDICE. This case is DISMISSED. Clerk DIRECTED to enter judgment in favor of Defendant Kendallville Place Apartments, Phase II LLC, and against Plaintiff Jeff Money. Signed by Judge Rudy Lozano on 3/7/16. (cer)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
JEFF MONEY,
Plaintiff,
v.
KENDALLVILLE PLACE
APARTMENTS, PHASE II, LLC,
d/b/a NELSON ESTATES
APARTMENTS, PHASE II,
Defendant.

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1:14-cv-00253

OPINION AND ORDER
This

matter

is

before

the

Court

on

“Kendallville

Place

Apartments, Phase II, LLC, d/b/a Nelson Estates Apartments, Phase
II

Motion

for

Summary

Judgment,”

filed

by

the

defendant,

Kendallville Place Apartments, Phase II, LLC, d/b/a Nelson Estates
Apartments, Phase II, on July 20, 2015.

(DE #27.)

For the reasons

set forth below, the Motion for Summary Judgment is GRANTED.

With

no federal claims now before it, this Court declines to exercise
jurisdiction on the plaintiff’s state law claim, and, therefore,
that state law claim is DISMISSED without prejudice.

Because no

claims remain pending, this case is DISMISSED, and the Clerk is
DIRECTED to enter judgment in favor of the defendant, Kendallville
Place Apartments, Phase II, LLC, d/b/a Nelson Estates Apartments,
Phase II, and close this case.

BACKGROUND
On July 24, 2014, Jeff Money (“Money”) filed a complaint
against Kendallville Place Apartments, Phase II, LLC, d/b/a Nelson
Estates Apartments, Phase II (“Nelson Estates”) in the Noble
Superior Court, Noble County, Indiana (cause number 57D01-1407CT-009) alleging claims under “Title II of the Americans with
Disabilities Act (“ADA”).”

(DE #6.)

Estates filed a notice of removal.

On August 19, 2014, Nelson

(DE #1.)

On October 6, 2014,

Money filed an amended complaint, alleging that Nelson Estates
violated his rights under the Fair Housing Amendments Act, 42
U.S.C. section 3601 et seq. (“FHAA”), and that Nelson Estates was
negligent as a matter of Indiana law.
Estates filed its answer.

(DE# 20.)

On November 3, 2014, Nelson
On July 20, 2015, Nelson

Estates filed the instant motion for summary judgment.

(DE #27.)

In support of its motion, Nelson Estates has offered factually
relevant portions of Money’s deposition transcript.

Money has

failed to respond.

DISCUSSION
Standard
Summary judgment must be granted when “there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.”

Fed. R. Civ. P. 56(a).
2

A genuine

dispute of material fact exists when “the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct.
2505, 91 L. Ed. 2d 202 (1986).

Not every dispute between the

parties makes summary judgment inappropriate; “[o]nly disputes
over facts that might affect the outcome of the suit under the
governing

law

will

properly

preclude

the

entry

of

summary

judgment.” Id. To determine whether a genuine dispute of material
fact exists, the Court must construe all facts in the light most
favorable

to

the

non-moving

party

inferences in that party’s favor.

and

draw

all

reasonable

See Ogden v. Atterholt, 606

F.3d 355, 358 (7th Cir. 2010).
A party opposing a properly supported summary judgment motion
may not rely on allegations in his own pleading but rather must
“marshal and present the court with the evidence [he] contends
will prove [his] case.”

Goodman v. Nat'l Sec. Agency, Inc., 621

F.3d 651, 654 (7th Cir. 2010).

“[I]nferences relying on mere

speculation or conjecture will not suffice.” Stephens v. Erickson,
569 F.3d 779, 786 (7th Cir. 2009) (citation omitted).

If the non-

moving party fails to establish the existence of an essential
element on which he bears the burden of proof at trial, summary

3

judgment is proper.

See Massey v. Johnson, 457 F.3d 711, 716 (7th

Cir. 2006).
Local Rule 56-1 describes the specific obligations of both
the moving party and the non-moving party when a motion for summary
judgment is filed.

The moving party must file a “‘Statement of

Material Facts’ that identifies the facts that the moving party
contends are not genuinely disputed.”

N.D. Ind. L.R. 56-1(a).

The party opposing the motion must respond within twenty-eight
days with a “Statement of Genuine Disputes” that sets forth the
“material facts that the party contends are genuinely disputed so
as to make a trial necessary.”

N.D. Ind. L.R. 56-1(b)(2).

A

failure to respond as required by the local rules constitutes an
admission.

See Smith v. Lamz, 321 F.3d 680, 683 (7th Cir. 2003);

Michas v. Health Cost Controls of Ill., Inc., 209 F.3d 687, 689
(7th Cir. 2000).

However, even when an opposing party fails to

respond to a summary judgment motion altogether, Federal Rule of
Civil Procedure 56(e) permits judgment for the moving party only if
the movant is entitled to it.
may

only

be

granted

“if

In other words, summary judgment

appropriate—that

is,

if

the

motion

demonstrates that there is no genuine issue of material fact and
that

the

movant

is

entitled

to

judgment

as

a

matter

of

law.” LaSalle Bank Lake View v. Seguban, 54 F.3d 387, 392 (7th
Cir. 1995) (quoting Johnson v. Gudmundsson, 35 F.3d 1104, 1112
(7th Cir. 1994) (emphasis in original).

4

Because Money has failed to file a response and has not
identified any material disputes, the facts as claimed and properly
supported by Nelson Estates in its Statement of Material Facts are
deemed admitted to exist without controversy.

This Court has

reviewed the following facts and finds that they are adequately
supported with appropriate citations to admissible evidence in the
record.

While Nelson Estates’ Statement of Material Facts is

approximately 2 pages in length, this Court need not restate each
and every fact that is deemed admitted; only the facts that are
pivotal in resolving the instant motion are included in this order.

Facts
In 2000, Money moved into a Nelson Estates apartment to care
for his ill mother who also resided there.
1, pp. 2-3.)

(Money Dep., DE# 29-

At that time, Money’s mother owned a vehicle, but

Money himself did not own a vehicle.

(Id. at 4.)

According to

Money, Nelson Estates provided its tenants with two handicapped
parking spaces at the end of Money’s building.

(Id. at 13.)

Both

of these handicapped parking spaces were equipped with access
aisles

that

pavement.

were
(Id.

demarcated
at

15.)

with
In

blue

addition

lines
to

painted

these

two

on

the

general

handicapped parking spots, Nelson Estates reserved a parking spot
for Money directly in front of the door to his apartment.

5

(Id. at

4.)

That spot was marked by a four-by-four post that displayed a

handicap placard.

(Id. at 7.)

Money testified that he made repeated requests to Nelson
Estates that it paint blue striped access aisles next to his
reserved spot in order to provide him with greater access to
vehicles.

(Id. at 14-15.)

made these requests.

However, he is unclear exactly when he

(Id.)

According to Money, Nelson Estates

repeatedly denied his requests for the blue striped access aisles
because the facility did not have enough parking spaces for the
other tenants as it was.

(Id. at 16.)

In addition, Nelson Estates

informed Money that his request would impose an inconvenience to
the other tenants.

(Id. at 14, 16.)

Nelson Estates has both

handicapped and non-handicapped tenants alike who compete for the
limited available spots at the facility.

(Id. at 13, 17, 18.)

In 2008, when Money’s mother passed away, he took possession
of his mother’s vehicle.

(Id. at 3, 5.)

From then on, until the

vehicle was donated by Money in 2012, the vehicle never moved.
(Id. at 5.)

Nelson Estates had allowed Money to continue to park

the vehicle in his reserved spot, despite the fact that Money was
without a driver’s license and had been since 2006.
5.)

Money testified that, during this time, either his friend or

sister would pick him up to take him places.
After
reserved

(Id. at 2,

Money

parking

donated
spot

the

would

vehicle,
repeatedly
6

he
be

(Id. at 5.)
testified
occupied

that
by

his

other

vehicles in the complex.

(Id. at 17.)

However, in response,

Nelson Estates began the practice of placing an orange cone out in
the parking lot to keep vehicles from parking in front of Money’s
apartment and so that he could “have the other parking spot for
medical transportation or [when] people were coming to pick [him]
up to take [him] to the hospital.”

(Id.)

On August 3, 2012, Money’s sister arrived at Money’s apartment
at Nelson Estates to take him to breakfast.
parked in front of Money’s apartment.
his apartment in his wheelchair.

(Id. at 5-6.)

(Id. at 6-7.)

(Id. at 8.)

She

Money exited

He had been using

the wheelchair since January 2012 while he was healing from a
meniscus injury.

(Id. at 11-12.)

Money could not get his

wheelchair between the vehicles, so he got out of the wheelchair
and walked to the passenger door of the vehicle.
He did not ask his sister to assist him.

(Id. at 9-11.)

(Id. at 10.)

leg gave out, he fell, and he suffered an injury.

Money’s

(Id. at 11.)

Money remained a tenant at Nelson Estates until his lease was
terminated on February 15, 2014.

(Id. at 3.)

Analysis
Fair Housing Amendments Act
Under the FHAA, it is prohibited to prevent a disabled
individual from buying or renting private housing because of his
or her disability.

Wis. Cmty. Servs., Inc. v. City of Milwaukee,
7

465 F.3d 737, 748 (7th Cir. 2006); see generally 42 U.S.C. § 3604.
Such an individual must also be provided reasonable “accommodation
in rules, policies, practices, or services when such accommodation
may be necessary to afford [them] equal opportunity to use and
enjoy a dwelling.”

Id.; see 42 U.S.C. § 3604(f)(3)(B); see also

Dadian v. Vill. of Wilmette, 269 F.3d 831, 838 (7th Cir. 2001).
To prevail on an FHAA accommodation claim, a disabled plaintiff
must establish that a requested accommodation, that was both
reasonable and necessary to afford him an equal opportunity to use
and enjoy his dwelling, was denied.

See Wis. Cmty. Servs., Inc.,

465 F.3d at 749; U.S. v. WHPC—DWR, LLC, 491 Fed. Appx. 733, 736
(7th Cir. 2012).
In this case, Money claims that Nelson Estates violated his
rights

under

the

FHAA

because

it

failed

to

make

reasonable

accommodations with respect to the rules, policies, practices, and
services

regarding

tenants.

Nelson Estates, however, argues that summary judgment is

appropriate
disabled,

because,

wheelchair

requested

even
an

accessibility

assuming

arguendo

accommodation,

and

to

its

that
was

disabled

Money

denied

was
such

accommodation, his request that blue lines be painted around his
assigned parking space was neither reasonable nor necessary to
allow Money an equal opportunity to use and enjoy the premises.

8

1.

Reasonable Accommodation

The determination of whether a requested accommodation is
reasonable is highly fact-specific and must be decided on a caseby-case

basis.

Oconomowoc

Residential

Programs

Milwaukee, 300 F.3d 775, 784 (7th Cir. 2002).

v.

City

of

“The requirement of

reasonable accommodation does not entail an obligation to do
everything humanly possible to accommodate a disabled person; cost
(to

the

defendant)

and

consideration as well.”

benefit

(to

the

plaintiff)

merit

Bronk v. Ineichen, 54 F.3d 425, 429 (7th

Cir. 1995) (citing U.S. v. Vill. of Palatine, 37 F.3d 1230, 1234
(7th Cir. 1994)).

“An accommodation is reasonable if it is both

efficacious and proportional to the costs to implement it.”
Cmty. Servs., Inc., 465 F.3d at 749.
text

of

the FHAA is

accommodations

to

the

“Implicit nonetheless in the

understanding

achieve

Wis.

necessary

that

ends

are

while reasonable
required,

some

accommodations may not be reasonable under the circumstances and
some may not be necessary to the laudable goal of inclusion.”
Bronk, 54 F.3d at 428-29.
either

imposes

undue

“An accommodation is unreasonable if it

financial

and

administrative

burdens

or

requires a fundamental alteration in the nature of a program.”
Erdman v. City of Ft. Atkinson, 84 F.3d 960, 962 (7th Cir. 1996)
(internal quotation marks and citation omitted).
Here, because Nelson Estates refused Money’s request that it
create access aisles around his reserved space by painting the

9

area with blue stripes to provide him with better access transport
vehicles, this Court must balance the burden on Nelson Estates to
accommodate that request against the benefit provided to Money
under the applicable circumstances in order to determine whether
Money’s request was reasonable.
First, the Court notes that it is undisputed that Money was
provided with a reserved parking spot directly in front of his
building, despite the fact that he had neither a vehicle since
2012, nor a driver’s license since 2006.

It is also undisputed

that there were two additional handicapped parking spots at the
end of the building, complete with blue striped access aisles.
The record shows that parking space in general was limited at the
apartment complex and that Nelson Estates communicated to Money
that it did not have enough parking at the facility as it was.

In

addition, Nelson Estates informed Money that his request would
impose an inconvenience to the other tenants at the facility.
During his deposition, Money himself acknowledged both the limited
parking at Nelson Estates and the competition that exists between
the

handicapped

and

non-handicapped

available spots at the facility.

tenants

alike

for

all

Under these circumstances,

delineating blue striped access aisles around Money’s reserved
space

and

further

limiting

parking

to

other

undoubtedly be burdensome to Nelson Estates.

10

residents

would

Second, with regard to the benefit to Money, the record shows
that Money requested that Nelson Estates provide him with blue
painted stripes next to his reserved space for the purpose of
providing

him

with

sufficient

vehicles.

The benefit to Money can be best understood by parsing

the form from the substance.

space

to

access

transportation

As a matter of form, Money’s request

was for Nelson Estates to paint the area around his reserved
parking spot with blue stripes. However, as a matter of substance,
the purpose of the request was for a sufficient area to access his
transportation

vehicles.

Nothing

in

the

FHAA

or

relevant

regulations creates an absolute right to blue lines to be painted
next to a disabled tenant’s reserved space, so the FHAA does not
require Nelson Estates to give strict adherence to the particular
form of Money’s request. Rather, under the FHAA, the accommodation
need only be reasonable under the circumstances.

Here, the record

shows that in addition to assigning Money a parking spot in front
of his apartment, Nelson Estates began the practice of placing an
orange cone out in the parking lot in front of Money’s apartment
for the purpose of ensuring that Money had sufficient space to
access transportation vehicles when needed.

The orange cone

procedure provided sufficient space to access vehicles because the
record shows Money successfully utilized this procedure at various
times either for medical transport or when others would come to
pick him up.

Accordingly, if the purpose of Money’s request for
11

blue

stripes

transportation

was

to

vehicles,

obtain

sufficient

then

the

space

orange

accommodated the substance of that request.

to

cone

access

arrangement

Placing upon Nelson

Estates the additional duty to permanently paint the same area
with blue stripes would have provided Money with little benefit
beyond that already provided by the reserved spot and the orange
cone accommodation.
As reconfiguring its already limited parking area to provide
Money with an additional area painted with blue stripes would be
particularly burdensome on Nelson Estates, and because the benefit
to Money beyond that already provided by Nelson Estates would be
minimal, the burden on Nelson Estates to do so outweighed the
benefit to Money.

Thus, Money’s requested accommodation was not

reasonable under the circumstances. See U.S. v. Port Liberte Condo
1 Ass'n, Inc., No. 04-2783, 2006 WL 2792780, * 7 (D.N.J. Sept. 27,
2006) (reallocation

of parking spaces

is

not

a

reasonable

accommodation in light of legal rights of other condominium owners
and

in

light

of

engineering

realities);

Reyes

v.

Fairfield

Properties, 661 F.Supp.2d 249, 259 (E.D.N.Y. 2008) (“wholly new
construction or modifications of existing premises is not mandated
by

the

reasonable

accommodations

provision

of

the

FHAA”);

Rodriguez v. 551 West 157th St. Owners Corp., 992 F.Supp. 385, 387
(S.D.N.Y

1998)

(“reasonable

accommodation”

includes

only

an

accommodation in the “rules, policies, practices, or services,”

12

not

in

“facilities,”

but

even

if

FHAA

did

require

it,

the

accommodation must still be reasonable and not impose an undue
hardship or substantial burden on the landlord).

Because Money

has not shown that the accommodation he sought was reasonable, his
claim

of

discrimination

must

fail.

Oconomowoc

Residential

Programs, 300 F.3d at 783.

2.

Necessary for equal opportunity

Whether the requested accommodation is necessary requires a
“showing that the desired accommodation will affirmatively enhance
a disabled plaintiff’s quality of life by ameliorating the effects
of

the

disability.”

Bronk,

requested accommodation must

be

54

F.3d

at

“‘necessary,’

429.
meaning

The
that,

without the accommodation, the plaintiff will be denied an equal
opportunity to obtain the housing of her choice.”
Servs., Inc., 465 F.3d at 749.
into causation.

Id.

Wis. Cmty.

The inquiry by the court must delve

Furthermore:

the FHAA links the term ‘necessary’ to the
goal of ‘equal opportunity.’
42 U.S.C. §
3604(f)(3)(B).
The ‘equal opportunity’
element limits the accommodation duty so that
not
every rule that
creates
a
general
inconvenience or expense to the disabled needs
to be modified. Instead, the statute requires
only accommodations necessary to ameliorate
the effect of the plaintiff's disability so
that she may compete equally with the nondisabled in the housing market.
Id.

13

The federal regulations promulgated by the United States
Department of Housing and Urban Development (“HUD”)1 contain an
example

of

a

reasonable

and

necessary

accommodation

that

is

relevant to this case:
Progress Gardens is a 300 unit apartment
complex with 450 parking spaces which are
available to tenants and guests of Progress
Gardens on a first come first served basis.
John applies for housing in Progress Gardens.
John is mobility impaired and is unable to
walk more than a short distance and therefore
requests that a parking space near his unit be
reserved for him so he will not have to walk
very far to get to his apartment.
It is a
violation . . . for the owner or manager to
refuse to make this accommodation. Without a
reserved space, John might be unable to live
in Progress Gardens at all or, when he has to
park in a space far from his unit, might have
difficulty getting from his car to his
apartment unit. The accommodation therefore
is
necessary
to afford John an equal
opportunity to use and enjoy a dwelling.
The
accommodation is reasonable because it is
feasible
and
practical
under
the
circumstances.
24 C.F.R. § 100.204(b); see also U.S. v. WHPC-DWR, LLC., 491 Fed.
Appx. 733, 737-38 (7th Cir. 2012), Shapiro v. Cadman Towers, Inc.,
844 F.Supp. 116, 125 (E.D.N.Y. 1994), aff’d, 51 F.3d 328 (2d Cir.
1995).
In the HUD regulation above, John was mobility impaired and
could only walk a short distance.

Under the Seventh Circuit

1

HUD regulations are applicable because the Secretary of HUD was given the
power to make rules and regulations to carry out the provisions of the FHAA.
See 42 U.S.C. § 3614a.

14

causation standard, without the requested accommodation for a
reserved space, John might be unable to live in Progress Gardens
at all.

As a result, the accommodation was necessary for equal

opportunity to use and enjoy the dwelling.

In the case at hand,

however, while Money is similar to John in that he is mobility
impaired, Nelson Estates did in fact provide Money with a reserved
spot directly in front of his apartment door.

Furthermore, the

record shows that upon receiving that reserved parking spot, Money
came and went from his apartment for many years.

In fact, even

when his reserved space was occupied with his own vehicle (which
he had not driven since at least 2006), Money testified that he
came and went from his apartment despite the fact that the other
handicapped spots were always occupied.

In addition, in 2012 when

Money was in a wheel chair due to a meniscus tear which made
mobility to and from vehicles more difficult, the record shows
that Nelson Estates would place an orange cone out when requested
to do so to ensure Money had an available parking area in front of
his apartment for medical transport or some other transportation
need.

Money utilized this orange cone procedure in the past and

certainly could have done so on August 3, 2012, the day of his
fall; however, he has presented no evidence that he made such a
request on that date.
Finally, the Court notes that the record shows there are other
handicapped tenants at Nelson Estates who own vehicles yet, unlike

15

Money, must compete with both handicapped and non-handicapped
tenants for the limited parking spots available.

Money has

testified that he has no vehicle, has no driver’s license, had
been provided with a reserved spot, and received the orange cone
accommodation
transportation.

to

ensure

the

parking

space

needed

for

To force Nelson Estates to provide Money with

blue striped access aisles adjacent to his reserved spot would be
an accommodation, relative to the other tenants, that goes beyond
affording him an equal opportunity to use and enjoy the dwelling.
Thus, the accommodation request that Nelson Estates equip Money’s
reserved space with blue stripes was not necessary to allow Money
equal opportunity to use and enjoy the premises because it would
not have affirmatively enhanced his quality of life by ameliorating
the effects of his disability.
In sum, because Money’s request that Nelson Estates provide
him with blue stripes around his parking spot, in addition to
reserving him a spot directly in front of his apartment and
providing the orange cone accommodation, was neither reasonable
nor necessary under the circumstances, Nelson Estates did not
violate Money’s rights under the FHAA by failing to accommodate
that

request,

and

Money’s

claim

fails

as

Accordingly, summary judgment must be granted.

16

a

matter

of

law.

Negligence
Money has also asserted a state law claim of negligence.

As

all of his federal claims have been dismissed, this Court declines
supplemental jurisdiction over the remaining state law claim, and
it is dismissed without prejudice.

See e.g. Groce v. Eli Lilly &

Co., 193 F.3d 496, 500-01 (7th Cir. 1999).

CONCLUSION
For the reasons set forth above, the Motion for Summary
Judgment (DE #27) is GRANTED.

With no federal claims now before

it, this Court declines to exercise jurisdiction on the plaintiff’s
state law claim, and, therefore, that state law claim is DISMISSED
without prejudice.

Because no claims remain pending, this case is

DISMISSED, and the Clerk is DIRECTED to enter judgment in favor of
the defendant, Kendallville Place Apartments, Phase II, LLC, d/b/a
Nelson Estates Apartments, Phase II, and close this case.

DATED:

March 7, 2016

/s/Rudy Lozano
United States District Court

17