Gutierrez v. City of East Chicago et al

Filing 54

ORDER ADOPTING 51 REPORT AND RECOMMENDATIONS re 5 MOTION to Certify Class filed by Mary Gutierrez; GRANTING 5 MOTION to Certify Class by Plaintiff Mary Gutierrez; and GRANTING 7 MOTION for Preliminary Injunction by Plaintiff Mary Gutierrez, as outlined in Order. Signed by Judge Joseph S Van Bokkelen on 10/5/2016. (lhc)

United States District Court
Northern District of Indiana
Hammond Division
MARY GUTIERREZ and SHAWN POLK, on )
behalf of themselves and a class of those
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similarly situated,
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Plaintiffs,
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v.
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CITY OF EAST CHICAGO,
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et al.,
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Defendants.
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Civil Action No. 2:16-CV-111 JVB

ORDER
On September 6, 2016, Magistrate Judge Paul R. Cherry filed and served on the parties
his Report and Recommendation (DE 51) with regard to Plaintiff Mary Gutierrez’s motions for
class certification (DE 5) and for a preliminary injunction (DE 7), in which intervening Plaintiff
Shawn Polk joins. Judge Cherry recommended that this Court grant Plaintiff’s motions. In the
Report and Recommendation Judge Cherry advised the parties that they had fourteen days from
the date of service within which to file objections and noted that the failure to file timely
objections would result in waiver of the right to challenge the Recommendation before both the
District Court and the Court of Appeals.
The time for objection has expired and no party has filed objections to the Report and
Recommendation. Accordingly, this Court ADOPTS Judge Cherry’s recommendations and
makes the following orders:

A.

Class Action Certification
The Court GRANTS Plaintiff’s motion for class certification (DE 5).

(1)

Class Definition

The Court certifies a class under Federal Rule of Civil Procedure 23(b)(2) consisting of
all current and future tenants of properties owned and managed by the East Chicago Housing
Authority (ECHA).

(2)

Class Claims
Plaintiffs claim that Defendants ECHA and the City of East Chicago have a policy and

practice of conducting warrantless non-consensual criminal searches without exigent
circumstances that violate the Fourth Amendment to the United States Constitution. They also
regularly conduct administrative searches without a warrant or the tenant’s consent that violate
the Fourth Amendment. Plaintiffs seek a declaration that these polices are unconstitutional and
an injunction prohibiting Defendants from conducting non-consensual warrantless searches and
inspections of ECHA apartments absent exigent circumstances.

(3)

Appointment of Class Counsel
The Court appoints Jan P. Mensz, Kenneth J. Falk, and Gavin M. Rose, all of the ACLU

of Indiana, as class counsel.

B.

Preliminary Injunction
For the reasons set out in the Magistrate Judge’s Report and Recommendation, the Court

GRANTS Plaintiff’s motion for a preliminary injunction (DE 7).

(1)

Administrative Searches
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The Court ISSUES a preliminary injunction prohibiting ECHA from conducting
warrantless, non-consensual searches of tenant apartments when there are no exigent
circumstances and requiring ECHA to obtain consent from the tenant or, if consent is not given
or cannot be obtained, to obtain a warrant for all administrative searches that are not based on
exigent circumstances, including but not limited to routine HUD inspections, housekeeping
inspections, housing quality inspections, exterminations, bedbug inspections, suspected lease
violations, and inspections for tenants on probation due to housekeeping violations. This
injunction does not apply to tenant-requested maintenance visits and does not prohibit police
from accompanying an administrative search or maintenance for security purposes only.

(2)

Criminal Searches
The Court ISSUES a preliminary injunction requiring ECHA and the City of East

Chicago to end their warrantless drug search policy using drug-sniffing dogs as well as all other
warrantless criminal searches without exigent circumstances or consent.

(3)

Security
Because the Court is satisfied that Defendants will not suffer any damages if the

injunction issues, it adopts the Magistrate Judge’s recommendation that Plaintiffs not be required
to give security.
SO ORDERED on October 5, 2016.

s/ Joseph S. Van Bokkelen
Joseph S. Van Bokkelen
United States District Judge

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