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Gutierrez v. City of East Chicago

United States District Court, N.D. Indiana, Hammond Division

September 6, 2016

MARY GUTIERREZ, on her own behalf and on behalf of a class of those similarly situated, Plaintiff,
v.
CITY OF EAST CHICAGO and HOUSING AUTHORITY OF THE CITY OF EAST CHICAGO, Defendants.

          Mary Gutierrez, Plaintiff, represented by Gavin M. Rose, ACLU of Indiana.

          Mary Gutierrez, Plaintiff, represented by Kenneth J. Falk, ACLU of Indiana & Jan P. Kubicki-Mensz, ACLU of Indiana.

          Shawn Polk, Intervenor Plaintiff, represented by Gavin M. Rose, ACLU of Indiana & Jan P. Kubicki-Mensz, ACLU of Indiana.

          City of East Chicago, Defendant, represented by Michael E. Tolbert, Tolbert & Tolbert LLC & Shelice R. Tolbert, Tolbert & Tolbert LLC.

          Housing Authority of the City of East Chicago, Defendant, represented by Jewell Harris, Jr., Harris Law Firm PC, Joseph C. Svetanoff, Harris Law Firm PC & Nicholas A. Snow, Harris Law Firm PC.

          FINDINGS, REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE PURSUANT TO 28 U.S.C. § 636(b)(1)(B) & (C)

          PAUL R. CHERRY, Magistrate Judge.

         This matter is before the Court on a Motion for Preliminary Injunction [DE 7], filed by Plaintiff Mary Gutierrez on April 1, 2016, and a Motion for Class Certification [DE 5], filed by Plaintiff on April 1, 2016. Both motions are fully briefed and ripe for ruling.

         On June 22, 2016, District Court Judge Joseph S. Van Bokkelen entered an Order [DE 36] referring this matter to the undersigned Magistrate Judge for a report and recommendation on the instant motions pursuant to 28 U.S.C. § 636(b)(1)(B). This Report constitutes the undersigned Magistrate Judge's combined proposed findings and recommendations pursuant to 28 U.S.C. § 636(b)(1)(C). For the following reasons, the Court recommends that the District Court grant in part and deny in part the Motion for Preliminary Injunction and grant the Motion for Class Certification.

         PROCEDURAL BACKGROUND

         On March 31, 2016, Plaintiff Mary Gutierrez, on her own behalf and on behalf of a class of those similarly situated, filed a class action Complaint against the Housing Authority of the City of East Chicago ("ECHA") and the City of East Chicago, alleging that the defendants had a policy and practice of conducting warrantless searches and inspections of ECHA apartments without its tenants' consent and without probable cause or exigent circumstances in violation of the Fourth Amendment to the United States Constitution.

         Defendant City of East Chicago filed an Answer on May 13, 2016, and Defendant ECHA filed an Answer on May 19, 2016.

         On August 22, 2016, the Court held an evidentiary hearing on both pending motions. The same date, Plaintiff filed a Notice of Supplemental Authority.

         MOTION FOR PRELIMINARY INJUNCTION

         Plaintiff asks the Court to issue a preliminary injunction enjoining Defendants from conducting nonconsensual warrantless searches and inspections of her apartment absent probable cause or exigent circumstances and enjoining enforcement of any provision of the lease agreement that allows these searches and inspections.

         A. Findings of Fact

         The East Chicago Housing Authority ("ECHA") is a municipal corporation established by the City of East Chicago to manage and maintain affordable housing for city residents. ECHA owns and manages 806 units distributed among six sites located in the City of East Chicago, Indiana, one of which is the James Hunter apartment building with 109 units for elderly persons. See ECHA Report on Examination of Financial Statements and Supplemental Data for the Twelve Months Ended December 31, 2014, p. 4 (available at: http://echa-in.org/drupal/drupal-7.26/sites/default/files/ECHA%202016%20Annual%20Plain%20-Nov-2015.pdf) (last visited Sept. 6, 2016).

         Plaintiff Mary Gutierrez is a 54 year-old resident of East Chicago, Indiana, and is a tenant of the ECHA, currently living in the James Hunter apartment building. (Pl. Ex. 2, ¶¶ 1-2). In her April 20, 2016 Affidavit, Plaintiff states that she has been a tenant of the ECHA for approximately three years. Id. at ¶ 2. Plaintiff is indigent, and, therefore, her rent is subsidized by ECHA. Id. at ¶ 3. She knows of no other place in East Chicago where she could afford to live. Id. Each year, ECHA conducts a re-certification and rental adjustment process that requires Plaintiff to sign a new lease. Id. at ¶ 4. The lease includes, among other things, a list of ECHA House Rules that Plaintiff is required to acknowledge by initialing next to each rule and signing the document. Id. She states that the lease, including the rules, is presented as mandatory and non-negotiable. Id. at ¶ 5. She states that she signs the lease because it is the only way she can access affordable housing. Id. In 2013, when she first signed a lease to move into the James Hunter building, she objected to a provision regarding debris removal from outside her apartment and was told that she had to initial all provisions and sign the lease or she would not be permitted to move in. Id. at ¶ 6.

         Plaintiff signed the ECHA House Rules on June 23, 2015. (Pl. Ex. 1). Next to each of the 62 rules, she signed her initials. House Rule 52, at issue in this litigation, provides:

I have been informed that emergency entries/inspections (i.e. heating, plumbing, and electrical or life threatening conditions) will be conducted by ECHA Staff and law enforcement and/or canine (K-9) units. Special entries/inspections (i.e. housekeeping) will be conducted by ECHA Staff and law enforcement and/or canine (K-9) units.

Id. at ¶ 52.

         Between January 1, 2016, and April 20, 2016, Plaintiff was subjected to approximately six separate searches and inspections of her apartment conducted by ECHA employees and police officers from the East Chicago Police Department. (Pl. Ex. 2, ¶ 7). Plaintiff states in her Affidavit that she did not give her consent to any of the six searches or inspections. Id. at ¶ 8. She states that at no time during any of the six searches was she shown or told of a warrant authorizing the search of her apartment; she also was not given any paperwork following the searches. Id. at ¶ 9. At no time during any of the searches or inspections was she told that there was an emergency that required immediate entry by ECHA or the police nor was she aware of any such emergency. Id. at ¶ 10.

         Plaintiff states that ECHA had informed her that it would conduct mandatory routine "housekeeping" inspections once a month, but it has conducted far more searches and inspections than that. Id. at ¶ 11. She states that, during the inspections, ECHA examines the cleanliness of the apartment. Id. at ¶ 12. ECHA employees are sometimes accompanied by officers from the East Chicago Police Department when conducting the inspections. Id.

         One of the six inspections occurred on February 5, 2016. Id. at ¶ 13. Plaintiff was in her apartment with a guest when she heard a knock on her door. Id. She answered the door to an ECHA maintenance employee and two unknown officers from the East Chicago Police Department. Id. Plaintiff later learned that the ECHA employee, though not in her uniform at the time, was also an officer of the East Chicago Police Department. Id. at ¶ 14. The ECHA employee told Plaintiff that she was there with the police officers to check the apartment in preparation for a United States Department of Housing and Urban Development ("HUD") inspection. Id. at ¶ 15. Plaintiff states that, without asking for permission, the ECHA employee and one of the police officers entered Plaintiff's apartment and inspected every room in the apartment. Id. at ¶ 16. The other officer waited outside the apartment door. Id. Plaintiff observed the ECHA employee check the stove, the refrigerator, three emergency call alarms, including one that is in Plaintiff's bedroom, and the bathroom plumbing. Id. at ¶ 17. The police officer followed the ECHA employee into each of the rooms, including the bedroom, but Plaintiff did not see the officer touch anything. Id. The inspection lasted approximately five minutes, after which the ECHA employee and the two police officers left. Id. at ¶ 18. Plaintiff was not given any paperwork in conjunction with the inspection. Id. at ¶ 19.

         Approximately five to ten minutes after the ECHA employee and the two police officers left, Plaintiff received another knock on her door. Id. at ¶ 20. Another ECHA employee as well as five unknown officers and a canine of the East Chicago Police Department were in the hallway outside her door. Id. Plaintiff later learned that this ECHA employee was the executive director of ECHA, Tia Cauley. Id. at ¶ 21. Cauley told Plaintiff to step out into the hall. Plaintiff's guest was using the bathroom at the time, so Plaintiff called out to him in Spanish and told him that they had to go into the hallway. Id. at ¶ 22. Cauley told Plaintiff to stop speaking Spanish. Id. Without asking for permission or explaining what was happening, one of the police officers entered Plaintiff's apartment with the dog and closed the door. Id. at ¶ 23. Plaintiff could not see what the officer was doing, but he was in the apartment for approximately fifteen minutes. Id.

         While in the hallway, Plaintiff asked Cauley what was happening; Cauley responded that Plaintiff's apartment had been randomly picked for a drug search. Id. at ¶ 24. Plaintiff then asked if she could refuse the search. Id. at ¶ 25. Plaintiff states that Cauley told her that if she refused the searched, she would be arrested on the spot. Id. The four other officers were in the hallway at the time. Id. The ECHA employee told Plaintiff that she had an attitude. Id. The police officers questioned Plaintiff's guest, asking his name and using a radio to call in a background check on the guest. Id. at ¶ 26. The police took no further action against the guest. Id. After the search was complete, the ECHA employee and the officers and dog left; Plaintiff was not provided with any paperwork related to the search. Id. at ¶ 27.

         In her Affidavit, Plaintiff states that she objects to being subject to warrantless searches and inspections without her voluntary consent and that she believes that she will be arrested or evicted if she objects to any of the searches or inspections. Id. at ¶ 29-30. As a result, she feels forced to submit to the searches, even though it is against her will. Id. at ¶ 31. She feels like a prisoner in her own home. Id. at ¶ 32. She states she has very little privacy in her home because it is subject to search by ECHA and the police at any time. Id. at ¶ 20.

         In her deposition, ECHA Housing Director Tia Cauley testified that the tenants are not able to change any provision of the lease or the House Rules. (Pl. Ex. 3, pp. 19, 119). She explained that, once or twice a year, City of East Chicago police officers with K-9 units conduct investigatory searches for drugs by walking the dogs down the hallways, sometimes going into apartments. (Pl. Ex. 3, p. 5, ll. 2-4; p. 62, l. 22 - p. 64, l.2; p. 101, l. 24 - p. 102, l. 4). The entire building is searched. Id. at p. 64, ll. 7-13. The officers go into a unit when a dog alerts at an apartment door. Id. at p. 64, ll. 14-24. ECHA does not require that the officers have a warrant. Id. at p. 73, ll. 17-25.

         For an emergency entry or inspection under House Rule 52, ECHA does not require a tenant's consent to enter the apartment. Id. at p. 69, ll. 3-13. For a special entry or inspection for which the tenant has been given prior written notice, ECHA does not require the tenant's consent. Id. at p. 69, ll. 14-17. For a housekeeping inspection, ECHA does not require the tenant's consent if a written notice has been sent. Id. at p. 69, l. 18 - p. 71, l. 16. ECHA does the inspection even if the tenant is not home by using a passkey. Id. at p. 71, ll. 17-24. ECHA does not seek an administrative warrant for any of its entries. Id. at p. 73, ll. 14-16.

         ECHA's 2014 Amended Annual and Five Year Plan contains a section titled "Notice and Scheduling of Inspections." (Pl. Ex. 3, Cauley Dep. Ex. 4, p. 8-13) ("2014 Amended Annual and Five Year Plan" Section 8-II.C.). As for "Notice of Entry, " the ECHA Policy provides: "Any ECHA unit inspection or entry by ECHA staff may be accompanied by law enforcement and/or canine units." Id. For non-emergency entries, the policy provides that ECHA will notify the resident in writing at least 48 hours prior to any non-emergency inspection; that for regular annual inspections, the family will receive at least two weeks written notice of the inspection to allow the family to prepare the unit for inspection; and that entry for repairs requested by the family will not require prior notice and that resident-requested repairs presume permission for the ECHA to enter the unit. Id. For emergency entries, ECHA may enter the dwelling unit at any time without advance notice; if no adult household member is present at the time, ECHA must leave a written statement of the entry. Id. The policy provides that emergency entries will be conducted by ECHA staff and law enforcement and/or canine units. Id.

         Finally, the policy addresses "Special Inspections/Entries" and provides: "The [ECHA] may enter the dwelling unit at any time without advance notice when there is suspected lease violation." Id. Examples of suspected lease violations include but are not limited to "criminal or drug related activities and [boarders]." Id. These entries will also be conducted by ECHA staff and law enforcement and/or canine units. Id. Finally, the policy provides that "[m]anagement may enter a unit, without prior notice, to perform an unscheduled inspection for those residents who have been placed on probation due to a housekeeping violation." Id.

         In her deposition, Cauley testified that, in preparation for a HUD inspection, ECHA inspects each unit at least once a year as required by HUD, in addition to housekeeping inspections that occur monthly. (Pl. Ex. 3, pp. 38, 41-43; Pl. Ex. 4, pp. 8-11 through 8-13). Housekeeping inspections are regularly scheduled. (Pl. Ex. 3, p. 48). In her Affidavit, Cauley states that ECHA conducts routine entries into residences for purposes of housing quality inspections, exterminations, and bedbug inspections. (Def. Ex. D, ¶ 10). At her deposition, Cauley testified that ECHA did not require Plaintiff's consent to do the annual inspection on February 5, 2016, which was the first of the two inspections of Plaintiff's apartment that day, because it was an annual inspection. (Pl. Ex. 3, p. 85, l. 24 - p. 86, l. 5).

         Cauley described emergency entries to include, among other things, entering if a washing machine line becomes clogged but flooding has not yet occurred. Id. at p. 32-34. Cauley testified that suspected lease violations can include reports that a tenant has a dog that weighs over 20 pounds or having an unauthorized adult living in the apartment. Id. at pp. 49-51, 56.

         During the most recent annual inspection in 2016, ECHA and the East Chicago Police Department conducted random drug searches of the apartment buildings while ECHA conducted its maintenance checks. (Pl. Ex. 3, pp. 83-84). Cauley testified that, during the search of Plaintiff's apartment, the police were present for both searches. Id. at 118-19. Cauley also testified that, when Cauley and the officers came back for the second inspection on February 5, 2016, and Plaintiff asked why there had been so many inspections, Cauley responded that it was in preparation for HUD's upcoming inspection and did not tell Plaintiff that the officer was searching for drugs. Id. at 93-94.

         Cauley states in her Affidavit that, when she approached Plaintiff's residence on February 5, 2016, Plaintiff was inside her residence with the door closed after the first visit from ECHA, which Cauley did not observe. (Def. Ex. D, ¶ 4). Cauley knocked on the door, and Plaintiff opened the door and voluntarily stepped into the hallway. Id. at ¶ 5. Cauley states that Plaintiff had questions about the purpose of the entry into the residence but did not appear upset nor did she visibly protest. Id. at ¶ 6. Cauley states that Gutierrez did not appear distraught and did not have to be forced or removed from her residence in any way, nor did she make an effort to return inside during the time that ECHA and ECPD personnel were present inside the unit. Id. at ¶ 7. Cauley did not observe Plaintiff being ordered ...


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