United States District Court, N.D. Indiana, South Bend Division
OPINION AND ORDER
RUDY LOZANO, JUDGE UNITED STATES DISTRICT COURT
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, and the Defendant’s Motion to Strike (DE #112) is GRANTED. The clerk is DIRECTED to close this case.
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. In lieu of an answer, the HASB filed a motion to dismiss. 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 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. The HASB filed its reply on August 7, 2014. All motions have been fully briefed and are ripe for adjudication.
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.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (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. 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 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). Both methods are acceptable under the current rules. 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. 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. Thus, the burden has shifted to the Smiths to cite to specific evidence in the record 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 testimony, portions of the alleged “Verification of Allegations in First Amended 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”).
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 and contradictory. The “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 out that William Smith was later asked, on redirect 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 333, Id. at p. 28.) The Smiths respond by 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 the evidence and make improper credibility determinations. 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 deposition testimony to show that he made a Verification. (See DE #110-1, pp. 2-6.) However, page 306 of William Smith’s deposition has not been included in the record at all as far as the Court can ascertain,  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.
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 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). The Court finds the reasoning of these cases persuasive. 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 providing previous, specific and sufficiently detailed deposition testimony on the same matters is similar to the affidavits described in Babrocky. 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)-1(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.) The Court agrees. 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 testified that her disability discrimination claims are based on her association with William Smith. (L. Smith Dep., pp. 244, DE #92-7, p. 56.) 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, 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. Procedurally, the HASB points out that it is untimely. The dispositive motion deadline was originally set by this Court for November 25, 2013. That deadline was later extended to December 20, 2013. 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 cross-motion); Rivkin v. Diversified Realty Grp. Partners, No. 86 CIV. 9048, 1989 WL 79378, *5 (S.D.N.Y. July 11, 1989) (allowing untimely cross motion). What is true of both lines of cases is that this is a matter 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 reply brief when considering the disability determination issue raised in the HASB’s motion for summary judgment.
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.) Subsequently, he was issued 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. (Notice, DE #92-5; Police Report, DE #92-6.) Based on those incidents, the HASB filed an immediate possession action against William Smith on June 23, 2008. (Notice, DE #92-5; Lottie Aff. ¶ 10, DE #92-1, pp. 2-3.) 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.)
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 #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 (then William Smith’s girlfriend) appeared on his behalf. (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.” (Id. at 292, DE #106, p. 3.) He suffered from anxiety at that time, and the surgery affected his strength “for a while.” (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.” (Id. at 137, DE #92-2. P. 17.) When asked whether he believed whether anyone at the HASB discriminated against him because of a disability or any kind of health condition, ...