Bond v. Chase Home Finance LLC

Filing 5

ORDER signed by Judge Rudolph T. Randa on 10/22/2012 DENYING 4 MOTION for Temporary Restraining Order; GRANTING 2 MOTION for Leave to Proceed in forma pauperis. Bond may file an amended complaint by 11/26/2012 (see order for details), if no amended complaint filed, Clerk of Court will enter judgment dismissing this action without further order of the Court. (cc: all counsel, via US mail to Michael Bond)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

MICHAEL BOND,
Plaintiff,
v.

Case No. 12-C-1050

CHASE HOME FINANCE LLC,
Defendant.

DECISION AND ORDER

This matter is before the Court on the motions of pro se Plaintiff Michael
(“Bond”) for leave to proceed in forma pauperis in this action against Defendant Chase Home
Finance LLC (“Chase Home”), and for a preliminary injunction pursuant to Rule 65 of the
Federal Rules of Civil Procedure. Liberally construed, Bond requests a preliminary injunction
barring Chase Home from moving forward with state court eviction proceedings against him.
Generally, the Court does not consider a motion for injunctive relief unless the defendant has
been served and entered an appearance. However, given Bond’s pro se status and the
immediacy of the purported eviction proceeding, the motion is addressed herein.

PRELIMINARY INJUNCTION MOTION
With respect to Bond’s motion, “[a] preliminary injunction is an extraordinary
remedy never awarded as of right.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 24
(2008). Moreover, when a federal litigant wants to stay or enjoin a state court proceeding,
additional considerations are brought into play requiring that the Court’s analysis begin with
the Anti-Injunction Act, 28 U.S.C. § 2283. “The Act is designed to prevent unnecessary
friction between state and federal courts and to protect state court’s from federal interference.”
Ramsden v. AgriBank, FCB, 214 F.3d 865, 868 (7th Cir. 2000); Zurich Am. Ins. Co. v.
Superior Ct. of State of Cal., 326 F.3d 816, 824 (7th Cir. 2003) (“The Act rests on the
‘fundamental constitutional independence of the States and their courts,' and its purpose is to
make the dual system of state and federal courts work without ‘needless friction.’”) (quoting
Atl. Coast Line R.R. Co. v. Brotherhood of Locomotive Engineers, 398 U.S. 281, 286-87
(1970)). Bond has not provided a state court case number in his filings and this Court’s
independent review of the public records available through the online Wisconsin circuit court
access, http://wcca.wicourts.gov/index.xsl, does not disclose that any eviction action is
pending against Bond.
Thus, the Court will consider the criteria required to justify a preliminary
injunction. In order to obtain injunctive relief, Bond must show that he is likely to succeed
on the merits of its claims, that he is likely to suffer irreparable harm without an injunction,
that the harm that he would suffer without an injunction is greater than the harm that
preliminary relief would inflict upon Chase Home and that the injunction is in the public

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interest. See Michigan v. U.S. Army Corps of Eng'rs, 667 F.3d 765, 769 (7th Cir. 2011) cert.
denied,

U.S.

, 132 S.Ct. 1635 (Feb. 27, 2012).

“The likelihood of success on the merits is an early measurement of the quality
of the underlying lawsuit, while the likelihood of irreparable harm takes into account how
urgent the need for equitable relief really is.”

Id. at 788.

These considerations are

interdependent: the greater the likelihood of success on the merits, the less net harm the
injunction must prevent in order for preliminary relief to be warranted. Hoosier Energy Rural
Elec. Coop., Inc. v. John Hancock Life Ins. Co., 582 F.3d 721, 725 (7th Cir. 2009). In
considering irreparable harm, the question is whether the party seeking relief will suffer
irreparable harm in the interim period prior to the resolution of its claims. Girl Scouts of
Manitou Council, Inc. v. Girl Scouts of U.S. of Am. Inc., 549 F.3d 1079, 1086 (7th Cir. 2008).
Factual Background
Liberally construed, Bond's verified Complaint1 states that Bond was a tenant
at a rental property located at 2551 North 39th Street, Milwaukee, Wisconsin (the "Property").
Bond and his six dogs have resided at the Property for a number of years.
Following the March 23, 2011, foreclosure upon the Property, Chase Home
purchased the Property for $136,000. According to Bond, the purchase price was nearly
$100,000 in excess of the “normal price” for property of that age, condition, and location.
Subsequently, Bond offered to purchase the Property for the same amount that

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Bond has sworn under penalty of perjury that the allegations of his Complaint are true and correct and has
thus verified his Complaint under 28 U.S.C. § 1746. Therefore, the Court has considered the factual allegations of
Bond's Complaint as if they were made in an affidavit. See Pfeil v. Rogers, 757 F.2d 850, 859 (7th Cir. 1985).
However, unsupported, conclusory statements and legal arguments are not recitations of "‘fact' to which an affiant is
competent to testify." Id. at 862.

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Chase Home paid, with a $20,000 down payment. Chase Home refused to sell the Property
to Bond unless he paid $130,000.00, and is threatening to evict him from the Property. Bond
alleges that Chase Home is discriminating against him by refusing to sell the Property to him
for the same price as it would sell the Property to other consumers, and is harassing him by
threatening to evict him. Based on the foregoing, Bond claims that Chase Home has harassed
and discriminated against him in violation of 42 U.S.C. § 1983 and the First, Fourth, Fifth, and
Fourteenth Amendments to the United States Constitution and 42 U.S.C. §§ 3535(d), 3600
through 3620.
Likelihood of Success
With respect to the preliminary injunction, a vital consideration is Bond’s
likelihood of success on the merits of his claim that Chase Home has discriminated against
him in refusing his offer to purchase the Property and is retaliating against him by threatening
to evict him from the Property. Although Bond cites several federal statutes, his claims are
problematic.
Bond cites 42 U.S.C. § 1983 and the First, Fourth, Fifth, and Fourteenth
Amendments to the United States Constitution. To state a claim for relief under 42 U.S.C.
§ 1983, a plaintiff must allege that: (1) he was deprived of a right secured by the Constitution
or laws of the United States; and (2) the deprivation was visited upon him by a person or
persons acting under color of state law. Buchanan-Moore v. Cnty. of Milwaukee, 570 F.3d
824, 827 (7th Cir. 2009) (citing Kramer v. Vill. of N. Fond du Lac, 384 F.3d 856, 861 (7th Cir.
2004)); see also Gomez v. Toledo, 446 U.S. 635, 640 (1980). An individual must personally

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cause or participate in the alleged constitutional deprivation in order to be held liable under
§ 1983. Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009) ; Brooks v. Ross, 578 F.3d 574, 580 (7th
Cir. 2009). The Court is obliged to give a plaintiff's pro se allegations, “however inartfully
pleaded,” a liberal construction. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting
Estelle v. Gamble, 429 U.S. 97, 106 (1976)).
Section 1983 actions may only be maintained against defendants who act under
color of state law. London v. RBS Citizens, N.A., 600 F.3d 742, 746 (7th Cir. 2010).
Consequently, the defendants in § 1983 cases are usually government officials. Id. Chase
Home is not a government official.
Furthermore, “although private persons may also be sued under § 1983 when
they act under color of state law, id., they may not be sued for ‘merely private conduct, no
matter how discriminatory or wrongful.’” Id. (quoting Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526
U.S. 40, 50 (1999)). Two conditions must be satisfied in order for a private party’s actions to
be deemed taken under color of state law: (1) the alleged deprivation of federal rights must
have been caused by the exercise of a right or privilege created by the state, a rule of conduct
imposed by the state, or someone for whom the state is responsible; 2 and, (2) the private party
must be a person who may fairly be said to be a state actor. Id. Despite a liberal construction
and construing all factual inferences in Bond’s favor, the Complaint does not allege a plausible
claim on its face that Chase Home acted under color of state law as required to make a claim
under § 1983.

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Misuse of a state law by a private party does not satisfy this requirement. London, 600 F.3d at 746 (citing
Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982)).

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Bond also cites 42 U.S.C. § 3535(d) which is part of the Fair Housing Act (the
“FHA” or the “Act”). Section 3535(d) empowers the Secretary of Housing and Urban
Development to issue regulations. (“The Secretary may . . . make such rules and regulations
as may be necessary to carry out his functions, powers, and duties.”) That provision does not
appear to be relevant to Bond’s concerns.
However, Bond also cites 42 U.S.C. § 3600 through 3620 of the FHA. The
Act’s purpose is to “provide, within constitutional limitations, for fair housing throughout the
United States.” See 42 U.S.C. § 3601. “The Fair Housing Act is concerned with both the
furtherance of equal housing opportunity and the elimination of segregated housing.”
S.–Suburban Housing Ctr. v. Greater S. Suburban Bd. of Realtors, 935 F.2d 868, 882 (7th
Cir.1991) (quoting Southend Neighborhood Improvement Ass’n v. Cnty. of St. Clair, 743 F.2d
1207, 1209-10 (7th Cir. 1984)).
Although Bond does not reference the particular sections of the FHA upon
which he relies, the FHA provides that it shall be unlawful —
(a) To refuse to sell or rent after the making of a bona fide offer,
or to refuse to negotiate for the sale or rental of, or otherwise
make unavailable or deny, a dwelling to any person because of
race, color, religion, sex, familial status, or national origin.
(b) To discriminate against any person in the terms, conditions, or
privileges of sale or rental of a dwelling, or in the provision of
services or facilities in connection therewith, because of race,
color, religion, sex, familial status, or national origin.
42 U.S.C. § 3604(a) & (b). The FHA also prohibits discrimination in the sale or rental based
on handicap. 42 U.S.C. § 3604(f)(1).

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Bond’s Complaint may fall within the ambit of § 3604. However, a critical
component of a § 3604 claim is not included in Bond’s Complaint. Bond’s Complaint does
not allege any facts that would give rise to an inference that he is a person whom Chase Home
discriminated against because of race, color, religion, sex, familial status, national origin, or
handicap. Bond has not alleged that he falls within any of the groups of individuals who are
protected under the FHA.
With respect to Bond’s retaliation claim, the FHA also makes it unlawful –
to coerce, intimidate, threaten, or interfere with any person in the
exercise or enjoyment of, or on account of his having exercised
or enjoyed, or on account of his having aided or encouraged any
other person in the exercise or enjoyment of, any right granted or
protected by section 3603, 3604, 3605, or 3606 of this title.
42 U.S.C. § 3617. Depending on the circumstances of a case, a plaintiff may establish a
§ 3617 claim without establishing a § 3404 claim. See Bloch v. Frischholz, 587 F.3d 771, 782
(7th Cir. 2009). To prevail on a § 3617 claim, a plaintiff must show that (1) he is a protected
individual under the FHA, (2) he was engaged in the exercise or enjoyment of his fair housing
rights, (3) the defendants coerced, threatened, intimidated, or interfered with the plaintiff on
account of his protected activity under the FHA, and (4) the defendants were motivated by an
intent to discriminate. Id. at 783. Again, Bond’s Complaint does not allege any fact that
would give rise to an inference that he is a “protected individual under the FHA.” See id.
Thus, based on the factual statements in Bond’s Complaint, the likelihood of his success on
the merits any of his claims is doubtful.

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Irreparable Harm
Bond does not address the harm to him. However, implicit in his request for
injunctive relief is the harm that he will sustain if he is evicted from the Property. He and his
six dogs will have to quickly find a new place to live. By comparison, Chase Home is the
legal owner of the Property and wants to sell it. Bond has been living at the Property for over
a year and a half. There is no indication that he has paid rent to Chase Home. Bond has no
right to reside at the Property.
Balancing of the Harms and Other Factors
Balancing the harms that Bond faces if he is evicted against those presented to
Chase Home’s ownership interest, the Court finds that Chase Home must prevail. While
Bond has no income and he has six dogs, and finding a new place to live for himself and six
dogs in a short time would be difficult, Bond’s legal claims are weak. He has no right to live
at the Property. Bond is also interfering with Chase Home’s legal interest in the Property.
The harms to Chase Home’s interests if a preliminary injunction were issued outweigh those
claimed by Bond. The public interest also overwhelmingly favors Chase Home. In light of
the foregoing, Bond’s motion for a preliminary injunction is denied.
MOTION TO PROCEED IN FORMA PAUPERIS
Bond also requests leave to proceed in forma pauperis. To authorize a litigant
to proceed in forma pauperis, the Court must make two determinations: first, whether the
litigant is unable to pay the costs of commencing the action; and second, whether the action
is frivolous or malicious. 28 U.S.C. §§ 1915(a) and (e)(2). Bond, who is separated from his

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wife, was last employed in June of 2012. He owns a 1993 Ford Excursion that he estimates
is worth $300. He does not own any other valuable tangible property and has no cash or
financial type of account. The only monthly expenses that Bond lists are support payments
totaling $300 for his three adult children. Based on his lack of income and limited assets,
Bond is unable to pay the $350 filing fee for this action.
The next question in evaluating the verified Complaint is to determine whether
it states an arguable claim for relief on behalf of Bond. To state a cognizable claim under the
federal notice pleading system, a plaintiff is required to provide a “short and plain statement
of the claim showing that [he] is entitled to relief[.]” Fed. R. Civ. P. 8(a)(2). It is not
necessary for the plaintiff to plead specific facts and his statement need only "give the
defendant fair notice of what the . . . claim is and the grounds upon which it rests." Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47
(1957)). However, a complaint that offers “labels and conclusions” or “formulaic recitation
of the elements of a cause of action will not do.” Iqbal, 556 U.S. at 678.
In considering whether a complaint states a claim, courts should follow the
principles set forth in Twombly by first, “identifying pleadings that, because they are no more
than conclusions, are not entitled to the assumption of truth.” Iqbal, 556 U.S. at 679. Legal
conclusions must be supported by factual allegations. Id. If there are well-pleaded factual
allegations, the Court must, second, “assume their veracity and then determine whether they
plausibly give rise to an entitlement to relief.” Id.

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As previously indicated, Bond has not stated an arguable claim for relief under
42 U.S.C. § 1983 and the First, Fourth, Fifth, or Fourteenth Amendments to the United States
Constitution.

He has also not stated a plausible claim under 42 U.S.C. § 3535(d).

Amendment of the Complaint with respect to such claims would be futile. Therefore, Bond's
claims under 42 U.S.C. § 1983 and the First, Fourth, Fifth, and Fourteenth Amendments to
the United States Constitution, as well as 42 U.S.C. § 3535(d) are dismissed without prejudice.
See Rowe v. Shake, 196 F.3d 778, 783 (7th Cir. 1999) (holding that under § 1915(e)(2)(B) a
district court has “the power to screen complaints filed by all litigants, prisoners and
non-prisoners alike, regardless of fee status,” even before service on the defendants.)
Bond’s claims under § 3404 or § 3417 of the FHA are missing critical facts –
there is no indication that he is a protected person under the FHA. If Bond is a protected
person and wants to proceed with his claim(s) under § 3404 or § 3417 of the FHA, he must file
an amended complaint on or before November 26, 2012, that includes facts that establish he
falls within a protected class.
The amended complaint must bear the docket number assigned to this case and
must be labeled “Amended Complaint.” The amended complaint will replace the prior
complaint and must be complete in itself, without any reference to the original complaint. See
Duda v. Bd. of Educ. of Franklin Park Pub. Sch. Dist. No. 84, 133 F.3d 1054, 1056-57 (7th
Cir. 1998). If an amended complaint is received by the deadline, it will be reviewed pursuant
to 28 U.S.C. § 1915.

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NOW, THEREFORE, BASED ON THE FOREGOING, IT IS HEREBY
ORDERED THAT:
Bond’s motion for a preliminary injunction staying any state court eviction
proceedings (ECF No. 4) is DENIED;
Bond’s motion for leave to proceed in forma pauperis (ECF No. 2) is
GRANTED;
Bond’s claims under 42 U.S.C. § 1983 and the First, Fourth, Fifth, and
Fourteenth Amendments to the United States Constitution, as well as 42 U.S.C. § 3535(d) are
DISMISSED WITHOUT PREJUDICE;
On or before November 26, 2012, Bond may file an amended complaint under
42 U.S.C. § 3404 or § 3417 that is complete in itself and is consistent with this Decision and
Order;
If Bond fails to file an Amended Complaint by November 26, 2012, the Clerk
of Court will enter judgment dismissing this action without further order of the Court; and
The parties must notify the Clerk of Court of any change of address. Failure to
do so could result in orders or other information not being timely delivered, thus affecting the
legal rights of the parties.
Dated at Milwaukee, Wisconsin this 22nd day of October, 2012.
BY THE COURT

_______________________
Hon. Rudolph T. Randa
U.S. District Judge
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