Smith et al v. Housing Authority of South Bend et al
Filing
123
OPINION AND ORDER: The Defendant's Motion for Summary Judgment (DE 91 ) is GRANTED, the Plaintiff's Cross-Motion for Partial Summary Judgment (DE 105 ) is DENIED, and the Defendant's Motion to Strike (DE 112 ) is GRANTED. The Clerk is DIRECTED to close this case. Signed by Judge Rudy Lozano on 3/31/15. (tlr)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
WILLIAM SMITH AND
LUBIRTA SMITH
PlaintiffS,
vs.
HOUSING AUTHORITY OF
SOUTH BEND,
Defendant.
)
)
)
)
)
)
)
)
)
)
)
CAUSE NO. 3:09-CV-330
OPINION AND ORDER
This matter is before the Court on the: (1) Motion for Summary
Judgment, filed by the Defendant, the Housing Authority of South
Bend, on December 20, 2013 (DE #91); (2) Plaintiffs’ Cross-Motion
for Partial Summary Judgment, filed by the Plaintiffs, William and
Lubirta Smith, on May 12, 2014 (DE #105); and (3) Defendant’s
Motion to Strike Evidence Designated by Plaintiffs, filed by the
Defendant, the Housing Authority of South Bend, on July 7, 2014 (DE
#112). For the reasons set forth below, the Defendant’s Motion for
Summary Judgment (DE #91) is GRANTED, the Plaintiff’s Cross-Motion
for
Partial
Summary
Judgment
(DE
#105)
is
DENIED,
Defendant’s Motion to Strike (DE #112) is GRANTED.
DIRECTED to close this case.
and
the
The clerk is
BACKGROUND
On July 23, 2009, the Plaintiffs, William Smith and Lubirta
Smith (collectively, the “Smiths”), filed their Verified Complaint
With Jury Demand. The original Complaint named numerous defendants
including
the
Housing
Authority
of
South
Bend
(the
“HASB”).
Motions to dismiss were filed by the various defendants, and on
September 30, 2010, this Court issued an order granting those
motions.
However, the Court granted the Smiths leave to amend
their Complaint to clarify their cause of action.
On November 15,
2010, the Smiths timely filed an Amended Complaint, naming only the
HASB as a defendant.
to dismiss.
In lieu of an answer, the HASB filed a motion
On March 30, 2012, the Court granted in part and
denied in part the motion to dismiss, dismissing various claims but
concluding that the Smiths had alleged sufficient facts pertaining
to Disability Based Fair Housing Act (“FHA”), Rehabilitation Act
(“Rehab
Act”),
Americans
with
Disabilities
Act
(“ADA”),
Habitability, and Third Party Beneficiary causes of action to
proceed on those specific claims.
Discovery commenced and ultimately concluded on October 1,
2013.
The HASB filed the instant motion for summary judgment on
December 20, 2013. After several requests for an extension of time
to respond were granted by this Court, the Smiths filed a motion to
strike several of the HASB’s supporting exhibits on March 4, 2014,
in lieu of a response.
The Smiths again asked for and were granted
-2-
an extension of time to file their actual response to the HASB’s
summary judgment motion within fourteen days of the Court’s ruling
on the motion to strike.
The Court denied the Smiths’ motion to
strike on June 2, 2014.
The Smiths filed their response to the
HASB’s motion for summary judgment on June 17, 2014.
The HASB
filed a reply in support of its motion for summary judgment on June
7, 2014.
Before the Court ruled on the motion to strike, however,
the Smiths filed the instant cross-motion for partial summary
judgment on May 12, 2014.
The HASB filed its response to that
motion on June 9, 2014, and the Smiths filed their reply in support
on June 25, 2014.
Finally, on July 7, 2014, the HASB filed the
instant motion to strike evidence designated by the Smiths.
The
Smiths filed their response to the HASB’s motion to strike on July
28, 2014.1
The HASB filed its reply on August 7, 2014.
All
motions have been fully briefed and are ripe for adjudication.
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).
A genuine
dispute of material fact exists when “the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.”
1
The Smiths also filed several “supplements” to their response.
-3-
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
every
dispute
between
the
parties
makes
summary
Not
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.
In determining whether
summary judgment is appropriate, the deciding court must construe
all facts in the light most favorable to the nonmoving party and
draw all reasonable inferences in that party’s favor. Ogden v.
Atterholt, 606 F.3d 355, 358 (7th Cir. 2010).
“However, our favor
toward the nonmoving party does not extend to drawing inferences
that are supported by only speculation or conjecture.”
Fitzgerald
v. Santoro, 707 F.3d 725, 730 (7th Cir. 2013) (citing Harper v.
C.R. Eng., Inc., 687 F.3d 297, 306 (7th Cir. 2012)).
A party opposing a properly supported summary judgment motion
may not rely on allegations or denials in her own pleading, but
rather must “marshal and present the court with the evidence she
contends will prove her case.” Goodman v. Nat’l Sec. Agency, Inc.,
621 F.3d 651, 654 (7th Cir. 2010).
If the nonmoving party fails to
establish the existence of an essential element on which he or she
bears the burden of proof at trial, summary judgment is proper.
Massey v. Johnson, 457 F.3d 711, 716 (7th Cir. 2006).
Throughout their various briefs, the Smiths repeatedly cite to
Modrowski v. Pigatto, 712 F.3d 1166 (7th Cir. 2013), among other
Supreme Court and Seventh Circuit cases, claiming that the HASB has
-4-
failed to adequately support its summary judgment motion by filing
an insufficient “statement of uncontested material facts.”
They
argue that Modrowski stands for the proposition that a summary
judgment
movant
is
required
to
show
a
“complete
absence
of
evidence” supporting the nonmovant’s position “before the burden
shifts to the [nonmovant] to counter-designate material showing a
dispute of fact.”
The Smiths’ understanding of both the Modrowski
case and their characterization of the HASB’s brief are wrong.
While the Modrowski case recognizes that the initial burden of
production “to inform the district court why a trial is not
necessary” lies with the movant, the requirements imposed on the
moving party “are not onerous” when it is the nonmovant who “bears
the
ultimate
burden
of
persuasion
on
a
particular
issue.”
Modrowski, 712 F.3d at 1168. A party may move for summary judgment
based on either “affirmative evidence that negates an essential
element of the nonmoving party’s claim” or by the other approach of
“asserting that the nonmoving party’s evidence [was] insufficient
to establish an essential element of the nonmoving party’s claim.”
Id. at 1169 (citation and internal quotation marks omitted).
methods are acceptable under the current rules.
Both
Id.
The Smiths’ attorney has displayed similar misunderstandings
as to the law when he previously argued to the Seventh Circuit that
this Court misapplied the summary judgment standard in a case which
also involved the HASB as a defendant.
-5-
See Stevens v. Hous. Auth.
of South Bend, 663 F.3d 300, 305 (7th Cir. 2011).
The Seventh
Circuit Court of Appeals described the plaintiff’s argument as a
“nonstarter” and stated:
[The plaintiff] complains that [the defendant]
was not put to the burden of showing the
absence of a genuine issue of material fact.
[The plaintiff] contends that [the defendant]
failed to carry its burden when it did not
foreclose the possibility that there were any
disputes of material fact.
This deficiency
alone, according to [the plaintiff], required
the district court to deny summary judgment.
But the district court did not misstate or
misapply the standards for summary judgment.
. . . .
Moreover, we rejected this very argument
recently in Crawford v. Countrywide Home
Loans, Inc., 647 F.3d 642 (7th Cir. 2011). In
that case, the plaintiff also claimed that . .
. it was under no burden to produce evidence
showing an issue of genuine fact unless the
defendant
wholly
extinguishe[d]
the
possibility that the events forming the basis
of his opponent’s claims occurred.
We
characterized
this
interpretation
as
a
misapplication of [the law] that is flatly
contradict[ed] by Celotex.
Id. (internal citations and quotations marks omitted).
As was the
case in Stevens, this Court finds that the HASB’s motion for
summary judgment has comprehensively challenged the factual and
legal support for the Smiths’ claims.2
Thus, the burden has
shifted to the Smiths to cite to specific evidence in the record
2
In their summary judgment brief, the HASB designates numerous pages
of evidence with clear and specific citations to the record as its “statement
of uncontested material facts.” (See DE#93, pp. 3-14.)
-6-
that demonstrates that genuine disputes remain for trial.
Nothing
in any of the recent cases (including Modrowski) cited by the
Smiths changes this analysis of the law or finding of fact.
Preliminary Evidentiary Issues
The HASB has filed the instant motion to strike portions of
the
Smiths’
deposition
“Verification
of
testimony,
Allegations
in
portions
First
of
the
Amended
alleged
Complaint”
(“Verification”) as cited in support of the “Plaintiffs’ Brief
Opposing Motion for Summary Judgment by Defendant Housing Authority
of South Bend” (“Response Brief”), and portions of the “Appendix
with Statement of Genuine Disputes and Counter-Designated Testimony
Supporting Plaintiffs’ Brief Opposing Motion for Summary Judgment
by Defendant Housing Authority of South Bend” (“Appendix”).3
As to the Verification, related deposition testimony, and
briefing citations, in a nutshell, the HASB argues that William
Smith’s deposition testimony, wherein he “verified” the verbatim
allegations
stated
in
the
Amended
Complaint
after
previously
providing prior, much more specific and sufficiently detailed
deposition testimony on each of those same subjects, should be
stricken
because
it
is
conclusory
3
and
contradictory.
The
In a footnote in its reply brief, the HASB acknowledges that it
inadvertently referenced Rule 56(e) as the basis of its motion rather than the
correct reference to Rule 56(c) (as amended in 2010). Despite the Smiths’
arguments to the contrary, the Court finds this mistake is not a sufficient
basis for denying the motion. See Federal Rule of Civil Procedure 56(c) and
Local Rule 56-1(e).
-7-
“verification”
consists
of
the
Smiths’
attorney
apparently
presenting William Smith with a copy of the Amended Complaint on
cross-examination, asking him to read the paragraphs one at a time,
and then asking him to “verify” the truth of those paragraphs.
(See W. Smith Dep. pp. 308-312 , DE #114-1, pp. 20-24.)
The HASB
points
redirect
out
that
William
Smith
was
later
asked,
on
examination, whether he wished to change any of the answers he had
previously given during direct examination. (See W. Smith Dep. pp.
332-333, DE #114-1, pp. 27-28.)
William Smith did not attempt to
reconcile any of the conflicts or contradictions; he simply noted
that he had answered the questions on direct examination truthfully
and that there was nothing he would like to change.
Id.
at
p.
28.)
The
Smiths
respond
by
(Id. at 333,
stating
that
their
Verification is considered proper evidence in opposition to the
motion for summary judgment and that finding otherwise would
require
the
Court
to
weigh
credibility determinations.4
the
evidence
and
make
improper
The Smiths then simply re-allege the
evidence provided by the Verification portion of their Appendix but
do not include any citations to the record other than a general
reference to the entire Appendix.
(See DE #118, pp.7-13 (citing
generally to DE #110-1.)) The Court notes that the Appendix itself
only directly cites to “pages 306 and 307" of William Smith’s
4
The Smiths list several pages of “counter-designated” evidence that
pertain to William Smith’s alleged disability, but this evidence is not the
subject of the HASB’s motion to strike, so the Court need not address it or
strike it in this context. (See DE #118, pp.5-6.)
-8-
deposition testimony to show that he made a Verification.
#110-1, pp. 2-6.)
(See DE
However, page 306 of William Smith’s deposition
has not been included in the record at all as far as the Court can
ascertain,5 and page 307 simply references the beginning of a
question asked by the Smiths’ attorney, but no answer was provided
by William Smith on that page.6
In a situation analogous to the one at hand, the Seventh
Circuit, citing to the Eighth Circuit with approval, declared that:
a party should not be allowed to create issues
of credibility by contradicting his own
earlier testimony.
Otherwise, the very
purpose of the summary judgment motion-to weed
out unfounded claims, specious denials, and
sham defenses-would be severely undercut. . .
. That same analysis applies to the instant
situation [wherein the court was called upon
to determine the admissibility of affidavit
testimony that contradicted earlier deposition
testimony].
Were the conflict at issue
between a deposition and an affidavit given by
two
separate
individuals,
then
summary
judgment would be inappropriate because the
district court may not weigh conflicting
evidence.
The situation is quite different
when a plaintiff has directly contradicted her
own earlier statements, without explaining the
contradiction or attempting to resolve the
disparity.
Babrocky v. Jewel Food Co., 773 F.2d 857, 861 (7th Cir. 1985)
(quotation marks and internal citations omitted); see also Johnson
5
It was not included as part of the “Counter-designated Testimony of
Plaintiff William Smith from his Deposition” as part of the Smiths’ Response
Brief (see DE #110-4), and the Court cannot find page 306 in any other part of
the record.
6
The Court will address these and other similar deficiencies below.
-9-
v. Nordstrom, Inc., 260 F.3d 727, 736 (7th Cir. 2001) (no abuse of
discretion where district court struck portions of the plaintiff’s
own
affidavit
because
it
contradicted
her
prior
deposition
testimony); Bank of Illinois v. Allied Signal Safety Restraint
Systems, 75 F.3d 1162, 1168-72 (7th Cir. 1996) (finding that
district court properly disregarded deposition testimony that
contradicted earlier clear affidavit statements and noting that
this was not considered improper weighing of evidence).
finds the reasoning of these cases persuasive.
The Court
The Smiths’
argument that Ford v. Wilson, 90 F.3d 245, 246-47 (7th Cir. 1996)
allows “verification” of a complaint to be used to defeat a motion
for summary judgment is unavailing.
In Ford, the court simply
noted that the plaintiff’s actual verified complaint could be
designated as evidence in opposition to the defendant’s affidavit.
Id. at 246.
However, it was not alleged that verified complaint
contradicted
any
of
plaintiff’s
prior
sworn
testimony.
Id.
Additionally, the court noted that it “[did] not mean to commend
the practice.
The federal rules envisage the submission of
evidentiary material in response to a motion for summary judgment
as a means of sharpening the issues, so that the judge can
determine just what if anything must be tried.”
Id. at 247.
Here, the Court agrees with the HASB that William Smith’s
contradictory and conclusory “verification” of the exact language
of the Amended Complaint during cross examination subsequent to
-10-
providing previous, specific and sufficiently detailed deposition
testimony
on
the
same
described in Babrocky.
matters
is
similar
to
the
affidavits
Therefore, the Court GRANTS the HASB’s
motion to strike as it pertains to those vague, conclusory,
contradictory
statements
found
within
William
Smith’s
“verification” deposition testimony (see W. Smith Dep. pp. 308-312,
DE #114-1, pp. 20-24), Verification cited in support of the
Response Brief (see citations to Verification found within DE #110,
pp. 9-12), and Appendix (see Appendix, ¶¶ 1(a)-17(m), DE #110-1,
pp. 2-6).
This material is STRICKEN.
The HASB also moves to strike Paragraph 32 of the Appendix
which is related to Lubirta Smith’s deposition testimony regarding
her alleged disability.
(See DE #110-1, p. 11; see also L. Smith
Dep., pp. 111-12, DE #110-2, pp. 50-51.)
The HASB contends that
such evidence is irrelevant to this lawsuit because the Smiths’
First Amended Complaint only alleges discrimination claims based on
her association with William Smith rather than her own alleged
disability.
(See Amend. Comp., ¶¶, 22-24, DE #40, pp. 6-10.)
Court agrees.
The
See Shanahan v. City of Chi., 82 F.3d 776, 781 (7th
Cir. 1996) (“A plaintiff may not amend his complaint through
arguments in his brief in opposition to a motion for summary
judgment.”)
Furthermore, the HASB points out that Lubirta Smith
7
The Court assumes the Smiths meant to title this section paragraph
4(a)-(m) rather than a duplicative 1(a)-(m).
-11-
testified that her disability discrimination claims are based on
her association with William Smith.
#92-7, p. 56.)
(L. Smith Dep., pp. 244, DE
Although the Smiths argue that this information is
“relevant to show her vulnerability to conditions in the HASB
property with resulting injuries to her,” the Court agrees with the
HASB that this evidence is not at issue in the instant motion for
summary judgment, and it is thus STRICKEN.
Finally, as referenced above in footnote number six, the Court
will not consider any materials that are not properly cited to and
supported by the record.
For example, the Smiths’ Appendix cites
to many pages of deposition testimony that are not attached with
their “Counter-Designated Testimony of Plaintiff William Smith from
his Deposition” (DE #110-4) or “Counter-Designated Testimony of
Plaintiff Lubirta Smith from her Deposition” and not included
elsewhere in the record as far as the Court can discern.
(See
e.g., DE # 110-1, pp. 2 (citing to W. Smith’s Dep, p. 306), 6
(citing to W. Smith’s Dep., p. 144), 7 (citing to W. Smith’s Dep.,
p. 9), 8 (citing to L. Smith’s Dep., pp. 135, 155, 297), 9 (citing
to W. Smith’s Dep., p. 275), 10 (citing to W. Smith’s Dep., pp.
278, 282, 288-89, 297)).
The Court need not “credit [a party’s]
version of the facts when the materials supporting those asserted
facts are not part of the record.”
Stevens, 663 F.3d at 311.
Nor
is the Court required to hunt through the record to make a party’s
case for him.
See Gross v. Town of Cicero, Ill., 619 F.3d 697,
-12-
702-03 (7th Cir. 2010) (collecting cases). Therefore, as in Gross,
this Court “strikes any of the parties’ factual assertions, in any
section of their briefs, that lack direct citation to easily
identifiable support in the record.”
Plaintiffs’ Cross Motion for Partial Summary Judgment
The Smiths filed their cross motion for summary judgment on
May 12, 2014.
In it, they ask this Court to grant summary judgment
in their favor and declare that William Smith is an individual with
a handicap or disability.
The HASB opposes the motion on both
procedural and substantive grounds.
out that it is untimely.
Procedurally, the HASB points
The dispositive motion deadline was
originally set by this Court for November 25, 2013.
was later extended to December 20, 2013.
That deadline
The HASB filed its
summary judgment motion by that date; however, the Smiths did not
file their cross motion for summary judgment until almost five
months after the deadline. The Smiths urge this Court to allow the
cross motion because it was filed prior to their (timely filed
because of the Court’s extensions) Response Brief.
The HASB and
the Smiths each cite to district court cases in support of their
position.
See e.g., Winters v. UNUM Life Ins. Co. of Am., 232
F.Supp.2d 918, 921 (W.D. Wis. 2002) (denying untimely crossmotion); Rivkin v. Diversified Realty Grp. Partners, No. 86 CIV.
9048, 1989 WL 79378, *5 (S.D.N.Y. July 11, 1989) (allowing untimely
-13-
cross motion).
a
matter
What is true of both lines of cases is that this is
left
to
the
sound
discretion
of
the
trial
court.
Therefore, this Court, in its discretion, DENIES the Smiths’ cross
motion for partial summary judgment as untimely.
However, the
Court declines to strike the motion in its entirety and will
instead consider the Smiths’ properly cited and supported evidence
and any relevant and fully-developed arguments in their cross
motion
and
determination
reply
brief
issue
when
raised
in
considering
the
HASB’s
the
motion
disability
for
summary
judgment.
Material Facts8
Eviction of William Smith & Disability
William Smith moved into apartment 416 of the HASB’s high-rise
building located at 628 Western Avenue, South Bend, Indiana on
November 15, 2004.
(W. Smith Dep. pp. 96-97, DE #92-2, pp. 11-12;
Lottie Aff. ¶ 8, DE #92-1, p. 2.)
8
Subsequently, he was issued
The Court notes that it has borrowed liberally from the HASB’s
Statement of Uncontested Material Facts section, as the Smith’s ignore most of
the evidence provided by the HASB. Thus, where the HASB has appropriately
cited to the record, and where that evidence remains uncontested by the
Smiths, it is deemed admitted. The Court has acknowledged where the facts are
disputed by the Smiths, but only to the extent that those facts are material,
are accurately cited to in the record, have not mischaracterized evidence, and
have not been previously stricken by the Court as set forth above. See Roger
Whitmore’s Auto. Serv., Inc. v. Lake County, Ill., 424 F.3d 659, 664, n. 2
(7th Cir. 2005) (“It is not the duty of the district court to scour the record
in search of material factual disputes.”).
-14-
several lease termination notices for violating his lease by
disturbing the peaceful enjoyment of other tenants and engaging in
disorderly conduct.
(Lottie Aff. ¶ 9, DE #92-1, p. 2; Mammolenti
Aff. ¶ 9, DE #92-3, p. 2.)
The third such notice ultimately
resulted in William Smith’s eviction, after Lubirta Smith (William
Smith’s girlfriend at the time) reported to the police that he had
pulled her coat over her face and hit her on May 4, 2008.
DE #92-5; Police Report, DE #92-6.)
(Notice,
Based on those incidents, the
HASB filed an immediate possession action against William Smith on
June 23, 2008.
2-3.)
(Notice, DE #92-5; Lottie Aff. ¶ 10, DE #92-1, pp.
The HASB consistently issues lease termination notices and
pursues immediate possession actions against tenants who disturb
the peaceful enjoyment of other tenants and engage in disorderly
conduct multiple times.
(Lottie Aff. ¶ 11, DE #92-1, p.3.)9
The St. Joseph Superior Court, Small Claims Division, granted
the HASB immediate possession at a July 7, 2008, hearing.
(W.
Smith Dep., p. 35, DE #92-2, p. 35; Lottie Aff. ¶¶ 10, 12, 13, DE
9
William Smith testified that believes he was evicted because he made
complaints about his upstairs neighbor, Vaughn Steward, related to Mr.
Steward’s music being too loud and other alleged misconduct. (W. Smith Dep.
pp. 61-63 & 325-26, DE #92-2, pp. 5-7 & 63-64.) He claims that Mr. Steward
was treated more favorably by the HASB because Mr. Steward was not similarly
disciplined or evicted. (W. Smith Dep. pp. 286-87, DE #92-2, pp. 59-60.) In
fact, the HASB did issue Mr. Steward a Notice of Good Cause to Terminate Lease
on November 13, 2006, for playing his guitar too loudly. (Mammolenti Aff. ¶
17; DE #92-3, pp. 3-4.) However, the HASB was unaware of any other lease
violations by Mr. Steward, and no other violations were noted in his file.
(Id.) Mr. Steward ultimately voluntarily moved out of public housing on
October 2, 2008, a few months after William Smith's eviction. (Id. at ¶ 18,
DE #92-3, p. 4.)
-15-
#92-1, pp. 2-3.) Cornelius Lottie, the HASB’s Assistant Manager of
Public Housing, appeared for the HASB at the immediate possession
hearing.
(Lottie Aff. ¶¶ 2, 12, DE #92-1, pp. 1, 3; L. Smith Dep.
p. 325, DE #92-7, p. 103.)
William Smith did not appear at the
hearing because he was in the hospital for an emergency bowel
obstruction;
instead,
Lubirta
Smith
girlfriend) appeared on his behalf.
(then
William
Smith’s
(W. Smith Dep. pp. 223,
225-26, DE # 92-2, pp. 48-50; L. Smith Dep. p. 233, DE #92-7, p.
51; Lottie Aff. ¶ 13, DE # 92-1, p. 3.)
Lubirta Smith informed the
court about William Smith’s medical condition and hospitalization
at the immediate possession hearing.
(L. Smith’s Dep. pp. 231-33,
DE #92-7, pp. 49-51.) The HASB had no knowledge of William Smith’s
hospitalization or his medical condition before the immediate
possession hearing.
(Lottie Aff. ¶ 12, DE #92-1, p. 3; W. Smith
Dep. pp. 231-32, DE #114-1, p. 12 & DE #92-2, p. 53; L. Smith Dep.
p. 234, DE #92-7, p. 52; Fleckner Aff. ¶ 6, DE #92-8, p. 2;
Mammolenti Aff. ¶ 10, DE #92-3, p. 2; Brownlee Aff. ¶ 14, DE #92-9,
p. 3.)
The Smiths have not presented any admissible evidence to
the contrary.
William Smith was hospitalized for nineteen days due to his
bowel obstruction surgery.
(W. Smith Dep. p. 291, DE #106, p. 2.)
When he got out of the hospital he was “pretty weak.”
DE #106, p. 3.)
(Id. at 292,
He suffered from anxiety at that time, and the
surgery affected his strength “for a while.”
-16-
(Id.)
The surgery
also affected his ability to walk long distances “for a while.”
(Id.)
He had to use a walker device while he was in the hospital
and when he was recovering at home for support and stability. (Id.
at 292-93, DE #106, pp. 3-4.)
Lubirta Smith took care of him while
he was recovering at cooked his meals and did the laundry.
(Id. at
294, DE #106, p. 5.)
However, William Smith made a full recovery from his bowel
obstruction surgery.
(Id. at 229, DE #92-2, p. 52.)
After about
one month, William Smith returned to his normal routine and
continued living the same way he had lived before the surgery.
(Id.)
After being out of the hospital for about a month, William
Smith required no assistance in caring for himself, he regained his
strength, and he no longer used a walker and could walk long
distances.
(Id. at 328, DE #92-2, p. 65.)
When asked about a
health condition or anything related to his health, he testified as
follows: “I don’t have no –- what kind of health condition?
A
normal illness, what normal people my age would have. I don’t have
no health conditions, really.”
When
asked
whether
he
(Id. at 137, DE #92-2. P. 17.)
believed
whether
anyone
at
the
HASB
discriminated against him because of a disability or any kind of
health condition, he replied, “no.” (Id. at 138, DE #92-2, p. 18.)
When asked whether he ever felt like anyone at the HASB treated him
unfairly or differently because of any kind of health condition, he
again replied, “no.”
(Id.)
-17-
On July 23, 2008, shortly after William Smith was evicted, he
married Lubirta Smith and moved in with her.
237, 323, DE #92-7, pp. 55, 65.)
(L. Smith Dep. pp.
Lubirta Smith lived in the same
public housing building as William Smith, and her apartment, unit
403, was just down the hall from William Smith’s former unit.
(Mammolenti Aff. ¶ 11, DE #92-3, p. 3.)
Section 8 Voucher Program
Lubirta Smith applied, on behalf of herself and William Smith,
for the Housing Choice Voucher Program (“Section 8 Program”) which
is administered by the HASB.
(Brownlee Aff. ¶ 8, DE #92-9, p. 2.)
On May 28, 2009, the HASB initially denied the Section 8 Program
application because the HASB’s security background check of the
Smiths showed criminal activity on April 28, 2008.
(L. Smith Dep.
p. 227, DE #92-7, p. 47; Brownlee Aff. ¶¶ 9, 15, DE #92-9, pp. 23.)
The HASB’s policy prohibits Section 8 Program assistance to
applicants when the applicant or any member of the applicant’s
household is currently engaged in, or has engaged in within the
last
three
years,
certain
criminal
activities,
including
drug-related criminal activity or criminal activity that threatens
the
health,
safety
or
right
to
peaceful
enjoyment
residents or persons in the immediate vicinity.
10, DE #92-9, p 2.)
of
other
(Brownlee Aff. ¶
After receiving the May 28, 2009, notice
denying Section 8 Program assistance, however, the Smiths both
-18-
produced records from St. Joseph County Police showing they had no
arrest records in the past three years.
(L. Smith Dep. pp. 227,
454, DE #92-7, pp. 47, 77; W. Smith Dep. pp. 245-46, DE #92-2, pp.
56-57.)
On June 8, 2009, eleven days after the initial denial notice,
and less than a week after the HASB received the Smiths’ arrest
record
history,
application.
the
HASB
approved
the
Section
8
Program
(L. Smith Dep. pp. 227-228, DE #92-7, pp. 47-48;
Brownlee Aff. ¶¶ 13, 16, DE #92-9, p. 3.)
The Smiths moved
directly from 628 Western into Section 8 housing at 614 South
Summit Drive on approximately August 31, 2009.
(Mammolenti Aff. ¶
13, DE #92-3, p. 3; L. Smith Dep. pp. 59-60, DE #92-7, pp. 4-5.)
Lubirta Smith testified that HASB “tried to stop [her] from
getting [her] Section 8” in retaliation for her complaints of
associational discrimination and/or her association with Mr. Smith.
(L. Smith Dep. pp. 244, 273-75, DE #92-7, pp. 56, 61-63.)
Lubirta
Smith
treated
initially
testified
she
complained
about
being
unfairly because of William Smith’s health condition to Linda
Brownlee, HASB’s Assistant Manager of Section 8 (L. Smith Dep. pp.
269-72, DE #92-7, pp. 57-60), but later Lubirta Smith testified
that she never mentioned William Smith’s health to Linda Brownlee.
(L. Smith Dep. pp. 477, 482-83, DE #92-7, pp. 78-80; Brownlee Aff.
¶¶ 14, 17, DE #92-9, p. 3.).
In any event, there is no evidence in
the record that Lubirta Smith made any complaints related to
-19-
William Smith’s alleged disability prior to July of 2009, which was
after William Smith’s eviction, after the temporary denial of
Section 8 Program benefits, and after the HASB granted her Section
8 Program benefits.
(L. Smith Dep. pp. 273-74, DE #92-7, pp. 61-
62; Lottie Aff. ¶¶ 9, 12, 13, DE #92-1, p. 2-3; Brownlee Aff. ¶¶ 9,
13, 15-16, DE #92-9, pp. 2-3.)
Habitability
At all relevant times during the Smiths’ tenancy, the HASB had
a maintenance complaint process to accept and promptly remedy
tenant maintenance concerns.
(Fleckner Aff. ¶ 8, DE #92-8, p. 2.)
Specifically, the HASB instructs tenants to report maintenance
concerns by calling the maintenance department hotline.
(Id.)
In
response to such complaints, the HASB’s maintenance department
generates a work order and assigns a maintenance technician to
promptly remedy the problem.
(Id.)
Although the maintenance
department’s response time varies depending on the severity of the
issue, the HASB typically addresses non-emergency repair requests
within one week.
(Fleckner Aff. ¶ 9, DE #92-8, p. 2; W. Smith Dep.
p. 141, DE #92-2, p. 20.)
The Smiths knew about and used this
complaint process. (L. Smith Dep. pp. 100-01, DE #92-7, pp. 14-15;
W. Smith Dep. pp. 140-41, DE #92-2, pp. 19-20.)
In addition to addressing tenant maintenance concerns through
this complaint process, the HASB public housing properties are
-20-
thoroughly inspected at least twice each year.
10-11, DE #92-8, pp. 2-3.)
(Fleckner Aff. ¶¶
The HASB contracts with a third-party
inspection company to inspect each public housing unit every year.
(Fleckner Aff. ¶ 10, DE #92-8, pp. 2-3.) The Department of Housing
and Urban Development (“HUD”) also inspects the HASB public housing
buildings either annually or every other year depending on the
prior physical inspection score. (Fleckner Aff. ¶ 11, DE #92-8, p.
3.)
HUD inspected the Smiths’ building, 628 Western, in 2000,
2002, 2004, 2006, 2007, and 2009.
HUD inspection.
(Id.)
The building passed each
(Id.)
The Smiths have presented the following evidence related to
the condition of their apartments:
1. William Smith’s Toilet
William Smith testified that the chain in the toilet tank
broke.
(W. Smith Dep. p. 145-46, DE #92-2, pp. 21-22.)
However,
he stated that the maintenance department replaced the broken chain
when he reported the problem to the HASB.
DE #92-2, p.)
(W. Smith Dep. p. 149,
Second, the toilet broke again and caused a flood a
day or two after William Smith reported the problem to the HASB’s
maintenance department.
pp. 23-24, 26.)
(W. Smith Dep. pp. 147-48, 150, DE #92-2,
Maintenance stopped the flooding and replaced the
toilet the same day the flood occurred. (W. Smith Dep. pp. 151-52,
DE #92-2, pp. 27-28.)
Mr. Smith did not experience any other
-21-
problems with his toilet after HASB replaced it. (W. Smith Dep. p.
152, DE #92-2, p. 28.)
2. Pests
William Smith testified that his apartment and hallway were
infested with roaches, and he had mice in his unit.
(W. Smith Dep.
pp. 159, 172, DE #92-2, pp. 29-30, 35; see also W. Smith Dep. pp.
159,
161-63,
299,
DE
#110-4,
p.
41-44,
85.)
Lubirta
Smith
testified she had some roaches in her apartment, but she claims her
“biggest problem” was mice and bed bugs.
(L. Smith Dep. p. 348, DE
#92-7, p. 67.) Throughout the Smiths’ tenancy, the HASB contracted
with a pest control provider to ensure industry-leading treatment
of roaches, bedbugs, mice and other pests.
15, DE #92-8, pp. 3-4)
(Fleckner Aff. ¶¶ 14,
Until a few months before the Smiths moved
out of 628 Western in August 2009, pest control treatment was
tenant-driven, meaning the HASB dispatched its contractors to treat
units and buildings in response to tenant complaints about pests.
(Fleckner Aff. ¶ 16, DE #92-8, p. 4.) The HASB informed Plaintiffs
of this complaint process.
(Fleckner Aff. ¶ 14, DE #92-8, p. 3.)
The Smiths complained to HASB about pests, and their units were
treated in response to their complaints.
(L. Smith Dep. pp. 98,
106-07, DE #92-7, pp. 13, 18-19 ; W. Smith Dep. pp. 164-65, DE #922, pp. 30-31.)
maintained
The HASB pest control contractors prepared and
records
memorializing
-22-
the
pest
control
treatment
provided in response to each tenant pest complaint, including all
of the Smiths’ complaints.
(Fleckner Aff. ¶¶ 17-20, DE #92-8, p.
4; Pest Control Records, DE #92-10.)
Pest control records from the Smiths’ units show neither unit
had a significant or frequent pest problem and establish that the
HASB
took
action
complained.
to
exterminate
the
pests
when
the
Smiths
(Pest Control Records, DE #92-10; Fleckner Aff. ¶¶
20-21, DE #92-8, pp. 4-5.)
According to the pest control records,
William Smith only complained about pests five times during his
three and a half year residency in apartment 416.
Records,
DE
#92-10;
Fleckner
Aff.
¶
20,
DE
(Pest Control
#92-8,
p.
4.)
Specifically, the HASB pest control contractors inspected and
treated William Smith’s unit on December 8, 2004, February 8, 2005,
February 15, 2006, May 24, 2006, and July 19, 2007.
(Id.)
The
contractors found no roaches in William Smith’s unit on May 24,
2006, or July 19, 2007.
(Id.)
Similarly, according to the pest
control records, Lubirta Smith only complained four times about
pests.
(Pest Control Records, DE #92-10; Fleckner Aff. ¶ 21, DE
#92-8, p. 4.)
Specifically, contractor for the HASB inspected and
treated her unit for pests in 2004, 2006, 2007, and 2008.
(Id.)
The contractor found “few roaches” in 2004, 2006, and 2007, and the
contractor found no roaches in 2008.
(Id.)
Nevertheless, during
each of those visits, the contractor “baited” the unit.
(Id.)
On
February 11, 2009, a contractor for the HASB inspected Lubirta
-23-
Smith’s unit and found insect infestation in her unit.
(February
11, 2009 Inspection Report, DE #92-11; Fleckner Aff. ¶ 22, DE #928, p. 5.)
The HASB’s contractor treated her unit the following
day. (Pest Control Records, DE #92-10; Fleckner Aff. ¶ 22, DE #928, p. 5.)
The HASB contractor inspected and treated Lubirta
Smith’s unit for pests (roaches and bed bugs) again on June 11,
2009 and June 18, 2009.
(Id.)
The contractor found few or no
roaches during these June 2009 inspections, but found bedbugs for
the first time in Mrs. Smith’s unit.
(Id.)
The HASB was not aware
any 628 Western tenant had bedbug problems until 2009.
Aff. ¶ 23, DE #92-8, p. 5.)
(Fleckner
Upon learning of the bedbug concern,
the HASB’s Manager of Maintenance, David Fleckner, researched the
proper treatment of bedbugs in a multi-family residence like 628
Western and worked with the HASB’s pest control contractor for
proper extermination.
5.)
(Fleckner Aff. ¶¶ 3, 23, DE #92-8, pp. 1,
The treatment was later reviewed and approved by the Indiana
Department of Health.
(Fleckner Aff. ¶ 23, DE #92-8, p. 5.)
Lubirta Smith’s apartment was treated once more for bedbugs and
roaches on August 6, 2009, and for roaches on August 13, 2009.
(Pest Control Records, DE #92-10; Fleckner Aff. ¶ 23, DE #92-8, p.
5.)
With
regard
to
mice,
Lubirta
Smith
testified
that
she
contacted HUD about this problem and a HUD employee and Mr. Lottie,
Assistant Manager of Public Housing, responded by inspecting her
-24-
unit.
(L. Smith Dep. pp. 102-03, DE #92-7, pp. 16-17.)
After this
inspection, Lubirta Smith acknowledges the HASB treated her unit
“almost right away,” and she no longer saw mice.
(L. Smith Dep.
pp. 106-07, DE #92-7, pp. 18-19.)
3. William Smith’s Air Conditioner
William Smith testified that his air conditioner did not work
because of a faulty filter.
pp. 35-36.)
that
the
(W. Smith Dep. pp. 172-73, DE #92-2,
But, during his deposition, William Smith admitted
HASB’s
maintenance
department
changed
his
air
conditioner’s filter and fixed his air conditioner within a day or
two after he called the HASB to report the problem.
(W. Smith Dep.
pp. 173-74, 177, DE #92-2, pp. 36-38.)
4. Elevators in 628 Western
As to the 628 Western elevators, William Smith testified that
the cameras didn’t work in the elevator.
DE #114-1, p. 17.)
(W. Smith Dep. pp. 301,
The Smiths both testified that they could only
recall one time when both elevators were broken at the same time,
and that was for about a two day period.
(W. Smith Dep. pp. 180-
81, DE #92-2, pp. 39-40; L. Smith Dep. p. 145, DE #92-7, p. 21.)
Neither of the Smiths complained to the HASB about the elevators
being broken.
(W. Smith Dep. p. 182, DE #92-2, p. 41; L. Smith
Dep. p. 144, DE #92-7, p. 20.)
-25-
The HASB has a full-service
contract with Schindler Elevator Corporation to repair and maintain
628 Western’s two elevators.
(Fleckner Aff. ¶ 26, DE #92-8, p. 6;
Cunningham Aff. ¶¶ 3, 4, DE #92-12, p. 1; Schindler Elevator
Records, DE #92-13.)
receives
Schindler
notice
of
The HASB contacts Schindler whenever it
elevator
dispatches
a
field
malfunction
at
628
Western,
technician
to
fix
the
and
problem.
(Fleckner Aff. ¶ 27, DE #92-8, p. 6; Cunninham Aff. ¶ 6, DE #92-12,
p. 1).
Schindler usually fixes any elevator malfunctions within a
couple of hours of getting a call from the HASB.
27, DE #92-8, p. 6.)
(Fleckner Aff. ¶
According to the elevator records, the
elevators at 628 Western were never both unusable for a full day.
(Schindler Elevator Records, DE #92-13; Fleckner Aff. ¶ 27, DE #928, p. 6.)
5. Lubirta Smith’s Carpet
The HASB installed new carpet in Lubirta Smith’s unit before
she moved in.
(L. Smith Dep. pp. 77-79, DE #92-7, pp. 8-10.)
On
August 10, 2008, Lubirta Smith’s carpet got wet after a sprinkler
head broke in her neighbor’s unit.
(L. Smith Dep. p. 161, DE #92-
7, p. 24; Fleckner Aff. ¶ 30, DE #92-8, p. 6.)
A HASB contractor
attempted to remove the water from the carpet to preserve it, but
ultimately decided to install new carpeting.
DE #92-8, p. 6.)
(Fleckner Aff. ¶ 30,
The new carpeting was installed in Lubirta
Smith’s unit on August 21, 2008, eleven days after the flood.
-26-
(L.
Smith Dep. pp. 158-59, 166, DE #92-7, pp. 22-23, 25; Fleckner Aff.
¶ 30, DE #92-8, p. 6; August 21, 2008 Work Order, DE #92-14.)
Lubirta
Smith
replaced.
had
no
further
concerns
after
the
carpet
was
(L. Smith Dep. p. 174, DE #92-7, p. 29.)
6. Lubirta Smith’s Possible Mold Concerns
Lubirta Smith testified that she noticed a small area of mold
in her bathroom between the tiles.
#92-7, pp. 30-31.)
(L. Smith Dep. pp. 175-77, DE
She reported these concerns to her Housing
Specialist, Kathy Mammolenti. (L. Smith Dep. pp. 170-71, DE #92-7,
pp.
26-27.)
Mammolenti
and
another
employee
inspected her apartment but found no mold.
from
the
HASB
(L. Smith Dep pp.
170-71, 175-76, DE #92-7, pp. 26-27, 30-31.)
Lubirta Smith
testified that she was able to clean the suspected “mold” spot on
her bathroom tile, and the new carpeting, which was installed
eleven days after the flood as noted above, remedied any remaining
concerns she had about mold from the flood.
(L. Smith Dep. pp.
174, 176, DE #92-7, pp. 29, 31.) Lubirta Smith also testified that
she was concerned about a black spot on the pipe underneath her
kitchen sink.
(L. Smith Dep. 177-78, DE #92-7, pp. 32-33.)
Lubirta Smith admitted that the HASB replaced the problem pipe
after she complained about the issue, and she had no further
problems with possible mold on it.
#92-7, pp. 33-34.)
-27-
(L. Smith Dep pp. 178-79, DE
7. Stoppage in Building Disposal Systems
Lubirta Smith testified that the odor from a stoppage in the
building’s disposal systems made her home uninhabitable. (L. Smith
Dep. pp. 193-95, DE #92-7, pp. 38-40.)
reported this problem to the HASB.
7, p. 40.)
Lubirta Smith never
(L. Smith Dep. p. 195, DE #92-
She testified that she successfully blocked the smell
from entering her unit with a door stopper, and the HASB remedied
the problem by welding the trash chute shut.
(L. Smith Dep. pp.
360-61, DE #92-7, pp. 68-69.)
8. Removal of Dead Body
The HASB states that it has no knowledge of a dead body
causing a smell in the building, and Lubirta Smith testified that
“no one knew” the man died.
(L. Smith Dep. pp. 187-89, DE #92-7,
pp. 35-37; Mammolenti Aff. ¶ 21, DE #92-3, p. 4.)
Lubirta Smith
testified that once the issue came to light, someone in white
plastic clothes and masks removed the body, and the smell went
away.
(L. Smith Dep. pp. 187-89, DE #92-7, pp. 35-37.)
9. Cleanliness of Common Areas
William Smith testified that the HASB “tried to keep [the
common areas] clean;” he seldom saw them dirty; and he did not
complain to HASB about common area uncleanliness.
-28-
(W. Smith Dep.
pp. 201-02, 328-30, DE #92-2, pp. 43-44.)
ANALYSIS
FHA, Rehab Act, and ADA Claims
For part of their First Claim and for their Second and Third
Claims, the Smiths allege that the HASB has violated the FHA, the
Rehab Act, and the ADA in that they have discriminated against
William Smith on the basis his disability and against Lubirta Smith
because of her association with William Smith.
The FHA, Rehab Act, and ADA all serve to protect disabled
individuals from discrimination by a public entity.
See 42 U.S.C.
§ 3604(f); 42 U.S.C. § 12132; 29 U.S.C. § 794(a).
The three
statutes are “separate but interrelated federal laws that protect
persons with disabilities from discrimination.”
Wisconsin Cmty.
Serv., Inc. v. City of Milwaukee, 465 F.3d 737, 746 (7th Cir.
2006). All three claims may properly be analyzed together because,
“[f]or the purpose of this case, the standards for these claims
under the three statutes are essentially the same.”
A.B. ex rel.
Kehoe v. Hous. Auth. of South Bend, No. 3:11-CV-163, 2012 WL
1877740, *4 (N.D. Ind. May 18, 2012) (citing Jackson v. City of
Chicago,
414
F.3d
806,
810–11
(7th
Cir.
2005);
Oconomowoc
Residential Programs v. City of Milwaukee, 300 F.3d 775, 782 (7th
Cir. 2002); Dadian v. Vill. of Wilmette, 269 F.3d 831, 837 (7th
Cir. 2001)); see also CTL ex rel. Trebatoski v. Ashland Sch. Dist.,
-29-
743
F.3d
524,
528
(7th
Cir.
2014)
(Rehab
Act
and
ADA
are
“coextensive”).
As a “threshold requirement” for disability discrimination
claims, a plaintiff must establish that he is disabled as defined
under those statutes and relevant regulations.
Id.; see also
Steffen v. Donahoe, 680 F.3d 738, 743 (7th Cir. 2012) (analyzing
claims brought pursuant to both the ADA and Rehab Act under the
ADA’s definition of disability; Oconomowoc, 300 F.3d at 782 (“The
definition of a disability under the ADA is substantively identical
to that in the FHAA.”).10
Enacted in 1990, the ADA originally defined disability as “(A)
a physical or mental impairment that substantially limits one or
more major life activities of such individual; (B) a record of such
an impairment; or (C) being regarded as having such an impairment.”
42 U.S.C. § 12102(2) (current version at
42 U.S.C. § 12102(1)).
Because the 1990 statute failed to define the terms ‘substantially
limits’ and ‘regarded as,’ the precise meaning of each phrase was
left to judicial interpretation.
See, e.g., Toyota Motor Mfg.,
Ky., Inc. v. Williams, 534 U.S. 184, 198 (2002) (holding that a
disability ‘substantially limits’ a major life activity where it
10
This is true for “associational disability discrimination” claims as
well, because a plaintiff must prevent evidence that the disability of the
person they associated with was a “determining factor” in the actions of the
defendant; in other words, the plaintiff must show that the reason the
defendant took those actions was because of discriminatory intent. See Magnus
v. St. Mark United Methodist Church, 688 F.3d 331, 337-38 (7th Cir. 2012)
(citing Stockwell v. City of Harvey, 597 F.3d 895, 901–02 (7th Cir. 2010)).
-30-
“prevents
or
severely
restricts
the
individual
from
doing
activities that are of central importance to most people’s daily
lives” and has an impact that is “permanent or long term”); Sutton
v. United Air Lines, Inc., 527 U.S. 471, 489 (1999) (holding that
in order to be ‘regarded as’ having a disability, an employer must
“believe either that one has a substantially limiting impairment
that one does not have or that one has a substantially limiting
impairment when, in fact, the impairment is not so limiting.”).
In September 2008, President Bush signed the ADA Amendments
Act of 2008 (“ADAAA”) that went into effect on January 1, 2009.
Pub. L. No. 110-325, 122 Stat. 3553 (codified as amended at 42
U.S.C.
§ 12101 et seq.).
Although the ADAAA left unchanged the
definition of ‘disability’ found in the original version of the
ADA, the amendments conveyed Congress’ intent to reject both
Toyota’s interpretation of ‘substantially limits,’ and Sutton’s
reasoning concerning the ‘regarded as’ prong of the definition of
a ‘disability.’
Id. at sec. 2(b)(3)-(4).
expanded the reach of the ADA.
In doing so, Congress
However, the Seventh Circuit has
since clarified that the ADAAA does not apply retroactively, so
courts must “look to the law in place prior to the amendments.”
Steffen, 680 F.3d at 744 (quoting Fredricksen v. United Parcel
Serv., Co., 581 F.3d 516, 521 n. 1 (7th Cir. 2009)).
Thus, when
the events giving rise to disability discrimination occurred prior
to the effective date of the ADAAA, courts in the Seventh Circuit
-31-
must use Toyota, Sutton, and their progeny to analyze those claims.
The Seventh Circuit has reiterated that a medical condition
and/or
diagnosis
determinative
on
standing
the
alone,
issue
Fredricksen,
581
F.3d
at
Kirkingburg,
527
U.S.
555,
of
521
even
severe,
establishing
(citing
566–67
if
is
not
disability.
Albertson’s,
v.
(determination
(1999)
Inc.
of
disability is based not on diagnosis of impairment but on effect of
impairment)).
To qualify as disabling, an individual’s medical
condition must substantially limit a major life activity.
v. Mem’l Med. Ctr., 497 F.3d 775, 781 (7th Cir. 2007).
also be permanent or long term.
of
Admin.,
44
F.3d
538,
Squibb
It must
Vande Zande v. State of Wis. Dept.
544
(7th
Cir.
1995)
(noting
that
“[i]ntermittent, episodic impairments are not disabilities, the
standard example being a broken leg.”); Ogborn v. United Food and
Commercial Workers Union, Local No. 881, 305 F.3d 763, 767 (7th
Cir. 2002) (citing Vande and noting that
impairments
such
disabilities”).
as
broken
limbs
and
“intermittent, episodic
appendicitis
are
not
For example, “a limitation on the ability to walk
must be ‘permanent or long term, and considerable compared to the
walking most people do in their daily lives.’”
Fredricksen, 581
F.3d at 521 (citing EEOC v. Sears, Roebuck & Co., 417 F.3d 789, 802
(7th Cir. 2005)).
Here, the HASB argues that the Smiths’ FHA, Rehab Act, and ADA
claims fail because the record shows that William Smith is not
-32-
“disabled” as defined under those statutes.
It is undisputed that
William Smith underwent bowel obstruction surgery in 2008, for
which he was hospitalized for nineteen days. It is also undisputed
that, for one month after that hospitalization, he was weak, had
trouble walking, had to use a walker for support and stability, and
relied on Lubirta Smith to help him and take care of some of his
basic needs such as cooking and laundry.
However, as the HASB
points out, the undisputed evidence provided via William Smith’s
testimony establishes that within a month of his bowel obstruction
surgery he was back to his normal routine, no longer used a walker,
could walk long distances, had regained his strength, and was able
to care for himself.
Nothing in the Smiths’ Response Brief (or
cross motion for summary judgment) creates a genuine dispute as to
these facts.11
Under relevant Seventh Circuit case law, while William Smith’s
bowel
obstruction
surgery
was
likely
a
serious
issue/condition, it was not a “disability” per se.
medical
Rather, to
establish that William Smith is disabled as their attorney asserts,
11
In their Appendix under the heading “Disability,” the Smiths state
that William Smith “observed the treatment by [the] HASB staff members of a
male resident known as “Cadillac” who was blind and appeared to be an
individual with intellectual disabilities. . . . This treatment included
allowing “Cadillac” to live in an apartment in which electrical outlets were
exposed without safety coverings necessary to prevent injury.” (DE #110-1, p.
10.) But the testimony at the page they cite to only mentions that “Cadillac”
was blind, and William Smith testified that he didn’t go into “Cadillac’s”
apartment,” (See W. Smith Dep. p. 302, DE #114-1, p. 18.) In any event, the
Court is not sure why this is relevant to establishing that William Smith was
disabled or that he was subject to any intentional discrimination because of
his observations of “Cadillac,” and the Smiths’ brief sheds no light on the
issue.
-33-
evidence must be presented such that he was substantially limited
in a major life activity.
While the Smiths point to evidence that
he had trouble walking and had to use a walker for stability
purposes, the HASB correctly responds that this does not create a
genuine dispute because the undisputed evidence provides that the
limitation was neither permanent nor long term. See EEOC v. Sears,
Roebuck & Co., 417 F.3d 789, 802 (7th Cir. 2005).
vague
references
to
William
Smith’s
short-term
The Smiths’
dependency
on
Lubirta Smith for cooking and laundry similarly do not create a
genuine dispute.
See Fredricksen, 581 F.3d at 522-23 (“Vague
assertions of difficulty performing a major life activity do not
create
a
genuine
issue
of
material
fact,
particularly
when
unaccompanied by any evidence that the limitation is substantial
compared to that of other adults.”) The failure of the Smiths to
provide evidence that William Smith was disabled or was regarded as
such by the HASB is sufficient to warrant the grant of summary
judgment
on
the
Smiths’
FHA,
Rehab
Act,
and
ADA
disability
discrimination claims.
The Smiths specifically state that the “HASB’s contention
[that William Smith is not disabled], if correct, would preclude
both
[William]
Smith’s
claims
under
the
Fair
Housing
Act
Amendments, 42 U.S.C. § 3601 and the Rehabilitation Act, 29 U.S.C.
§
794
and
standing.”
[Lubirta]
Smith’s
(DE #107, p. 5.)
claims
based
on
associational
Therefore, any undeveloped arguments
-34-
to the contrary are deemed waived.
The Court notes, however, that
as to William Smith’s disability discrimination claims, the HASB
points to undisputed evidence in the record that William Smith
admitted
that
no
one
at
the
HASB
treated
him
unfairly
or
differently because of any kind of health condition that he may
have had, that no one at the HASB knew of his bowel obstruction
surgery until after it had issued his lease termination notice, and
that they evicted him for legitimate non-discriminatory reasons
(i.e. repeated noise violations and disorderly conduct).
As to
Lubirta Smith’s associational disability discrimination claims, the
HASB points to undisputed evidence that her Section 8 application
was granted a little over a week after it was initially denied (so
she was not subject to any adverse action) and that there is no
evidence that William Smith’s alleged disability was a determining
factor in any of HASB’s actions against her.
Specifically, the
HASB points out any alleged complaint she made to HASB about
William Smith’s alleged disability was made after his eviction and
after Lubirta Smith was declared temporarily ineligible for the
Section 8 Program. Because the Smiths make absolutely no effort to
set forth a prima facie case of disability discrimination for
either William or Lubirta Smith, the Court will not engage in that
effort for them and finds simply that summary judgment is warranted
on those grounds as well.
Finally, as to the Smiths’ retaliation claims, the HASB is
-35-
correct in noting that the Smiths have failed to present any
admissible evidence that William Smith engaged in a statutorily
protected activity.
Similarly, any alleged complaint by Lubirta
Smith to the HASB regarding William Smith’s disability was done
after William Smith’s eviction and after her Section 8 Program
benefits were initially denied.
evidence to the contrary.12
The Smiths have not presented
These failures doom the Smiths’
retaliation claims at the summary judgment stage. See e.g. Cloe v.
City of Indianapolis, 712 F.3d 1171, 1180 (7th Cir. 2013).
As
noted above, the Smiths do not attempt to establish a prima facie
case of retaliation and do not provide any argument or analysis (or
cite to any applicable case law) in support of these claims.
Court will not attempt to make their case for them.
The
See Matthews
v. Waukesha Cnty., 759 F.3d 821, 826 (7th Cir. 2014) (citing Nelson
v. Napolitano, 657 F.3d 586, 590 (7th Cir. 2011) (“Neither the
district court nor this court are obliged to research and construct
legal arguments for parties, especially when they are represented
by counsel.”))
12
William Smith’s complaints about Mr. Steward’s alleged noise and
misconduct do not relate to disability discrimination in any way. Similarly,
much of the testimony of William Smith referenced in the “Retaliation” section
of the Smiths’ Appendix is either not included in the record or
mischaracterizes the evidence, and none of it establishes that he engaged in
any sort of protected activity related to his disability or the rights
afforded to him because of it.
-36-
Habitability & Third Party Beneficiary Claim
In their Amended Complaint, the Smiths allege that the HASB
failed to provide them with habitable premises and “breached
contracts
of
which
beneficiaries.”
[the
Smiths]
are
intended
third-party
They assert that these violations are based on
both Indiana law and on federal law. Under Indiana law, a landlord
must:
(1) Deliver the rental premises to a tenant in
compliance with the rental agreement, and in a
safe, clean, and habitable condition.
(2) Comply with all health and housing codes
applicable to the rental premises.
(3) Make all reasonable efforts to keep common
areas of a rental premises in a clean and
proper condition.
(4) Provide and maintain the following items
in a rental premises in good and safe working
condition, if provided on the premises at
the time the rental agreement is entered into:
(A) Electrical systems.
(B) Plumbing systems sufficient to
accommodate a reasonable supply of
hot and cold running water at all
times.
(C) Sanitary systems.
(D) Heating, ventilating, and air
conditioning systems. A heating
system
must
be
sufficient
to
adequately supply heat at all times.
(E) Elevators, if provided.
(F) Appliances supplied as an
inducement to the rental agreement.
-37-
Ind. Code § 32-31-8-5.
To succeed on a claim that a landlord
violated these obligations, a tenant must establish that: (1) they
gave the landlord notice of the alleged noncompliance; (2) they
gave the landlord a reasonable amount of time to make repairs or
provide a remedy of the condition described; and (3) the landlord
ultimately failed or refused to repair or remedy the condition.
See Ind. Code § 32-31-8-6.
Federal law requires that a housing authority incorporate
similar obligations related to keeping the premises in decent and
sanitary
condition
Specifically,
24
into
C.F.R.
all
of
section
their
landlord/tenant
966.4(e)
requires
authority:
(1) To maintain the dwelling unit and the
project
in
decent,
safe,
and
sanitary
condition;
(2) To comply with requirements of applicable
building codes, housing codes, and HUD
regulations materially affecting health
and safety;
(3) To make necessary repairs to the dwelling
unit;
(4) To keep project buildings, facilities, and
common areas, not otherwise assigned to the
tenant for maintenance and upkeep, in a
clean and safe condition;
(5) To maintain in good and safe working order
and condition electrical, plumbing, sanitary,
heating, ventilating, and other
facilities
and
appliances,
including
-38-
a
leases.
housing
elevators, supplied or required to be supplied
by the PHA;
(6) To provide and maintain appropriate
receptacles and facilities (except containers
for the exclusive use of an individual tenant
family) for the deposit of ashes, garbage,
rubbish, and other waste removed from the
dwelling unit by the tenant in accordance with
paragraph (f)(7) of this section;
(7) To supply running water and reasonable
amounts of hot water and reasonable amounts of
heat at appropriate times of the year
(according to local custom and usage), except
where the building that includes the dwelling
unit is not required by law to be equipped for
that purpose, or where heat or hot water is
generated by an installation within the
exclusive control of the tenant and
supplied by a direct utility connection.
24 C.F.R. § 966.4(e).
When a contract is made for a third-party’s direct benefit, he
may be entitled to rights pursuant to that contract.
Pitt, 643 F.2d 1261, 1270 (7th Cir. 1981).
Holbrook v.
“Federal common law
applies to . . . third-party beneficiary claims [when] a federal
agency is a party to the action and [when] the outcome of [a] case
will directly affect substantial financial obligations of the
United States.
Id. at 1271, n. 16; see also Evergreen Square of
Cudahy v. Wisconsin Hous. and Econ. Dev. Auth., 776 F.3d 463, 46768 (7th Cir. 2015).
Federal courts, however, are not given free
range to fashion federal common law.
Conille v. Sec’y of Hous. and
Urban Dev., 840 F.2d 105, 109 (1st Cir. 1988).
Instead:
Federal common law, being subject to the
paramount authority of Congress, is resorted
-39-
to only as a necessary expedient when federal
courts are compelled to consider federal
questions which cannot be answered from
federal statutes alone. Moreover, if there is
no significant conflict between some federal
policy or interest and the use of state law,
there is no need for a federal court to embark
upon the unfamiliar road of common lawmaking,
even in situations where the rights or
obligations of the United States under a
contract are at stake.
Thus, in cases
involving contractual obligations of the
United States that are not addressed by
statute, but resolvable under state law
without any conflict with federal policy,
state law is said to be incorporated as the
federal rule of decision.
Id. at 109-10.
Keeping these principles in mind, the Court agrees with the
HASB that the Smiths’ habitability and third-party beneficiary
claims
are
squarely
foreclosed
by
Seventh
Circuit
law.
In
Alexander v. U.S. Dept. of Hous. and Urban Dev., 555 F.2d 166, 171
(7th Cir. 1977), the court noted:
We decline plaintiffs’ invitation to follow
these state court decisions implying a
warranty of habitability in urban residential
leases in the private sector. We decline to do
so because we are not persuaded that such
warranties should be implied in leases of
dwelling units constructed and operated as
public housing projects. In contrast to
housing projects in the private sector, the
construction and operation of public housing
are projects established to effectuate a
stated national policy “to remedy the unsafe
and insanitary housing conditions and the
acute shortage of decent, safe, and sanitary
dwellings for families of low income”. 42
U.S.C. s 1401. As such, the implication of a
warranty of habitability in leases pertaining
-40-
to public housing units is a warranty that the
stated objectives of national policy have been
and are being met. We feel that the
establishment of any such warranty that
national policy goals have been attained or
that those goals are being maintained is best
left to that branch of government which
established the objectives.
Alexander v. U.S. Dept. of Hous. and Urban Dev., 555 F.2d 166, 171
(7th Cir. 1977). Later, the court cited with approval to Alexander
when
dismissing
a
plaintiff’s
warranty
of
habitability
claim
against a housing authority that was recognized as a federally
regulated and subsidized entity under HUD.
Auth., 754 F.2d 205, 206 (7th Cir. 1985).
Gibson v. Gary Hous.
The Gibson court went a
step further and held that the plaintiff’s claims related to a
breach of a duty to repair found in a HUD lease was also not a
viable claim.
Id. at 206-07.
Based on these rulings by the
Seventh Circuit, it is clear that the Smiths’ implied warranty of
habitability and third-party beneficiary claims against the HASB
cannot be sustained.
Moreover, even if Seventh Circuit precedent did not preclude
the Smiths’ claims, they have not shown that any sort of breach
involving the HASB’s implied or contractual obligations occurred.
As noted above, it is appropriate for a federal court to look to
state law when there is no conflict between the state and federal
laws.
See Conille, 840 F.2d at 110, n. 7 (citing Textile Workers
Union of Am. v. Lincoln Mills of Ala., 353 U.S. 448, 457 (1957)
(“[W]hen certain issues can be resolved via state law principles,
-41-
a federal court can incorporate non-conflicting state laws into the
analysis as long as the result does not compromise the purposes of
a national program.”)
Here, the obligations set forth in the
Indiana Code and the federal regulations are roughly the same as
related to the Smiths’ claims.
Namely, the HASB was responsible
for maintaining their housing units in decent, safe, and sanitary
condition and to make all necessary repairs.
It is reasonable to
infer that, like Indiana’s statute, a breach of the federal code
would also need to involve a notice requirements, a reasonable time
within which to respond, and an ultimate refusal to comply or
repair the condition after being so notified. See e.g. Holbrook v.
Pitt,
643
appropriate
F.2d
for
1261,
1274,
courts
to
n.
25
supply
(7th
Cir.
contract
1981)
terms
(“It
is
requiring
performance within a reasonable time where such terms are necessary
to fulfill the purposes of the contract.”)
The HASB argues that none of the Smiths’ testimony cited in
their Appendix creates a genuine dispute that the HASB breached any
of its obligations.
The Court agrees.
It remains undisputed that
the Smiths only notified the HASB about four concerns: (1) William
Smith’s toilet, twice; (2) pests in their units; (3) William
Smith’s air conditioner; and (4) the flood in Lubirta Smith’s
unit.13
It also remains undisputed that each of these concerns was
13
The Court has carefully reviewed the Smiths’ Apendix and counterdesignations. As noted, much of the cited testimony is either not included in
the record or mischaracterizes the evidence. To the extent that the testimony
is properly cited and characterized, it does not create a genuine dispute that
-42-
addressed by the HASB and adequately addressed and/or repaired by
the HASB.
For these reasons, summary judgment is appropriate on
the Smiths’ habitability and third-party beneficiary claims.
CONCLUSION
For the reasons set forth above, the Defendant’s Motion for
Summary Judgment (DE #91) is GRANTED, the Plaintiff’s Cross-Motion
for
Partial
Summary
Judgment
(DE
#105)
is
DENIED,
Defendant’s Motion to Strike (DE #112) is GRANTED.
and
the
The clerk is
DIRECTED to close this case.
DATED: March 31, 2015
/s/ RUDY LOZANO, Judge
United States District Court
would stave off summary judgment.
-43-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?