United States District Court, N.D. Indiana, Hammond Division
MARY GUTIERREZ, on her own behalf and on behalf of a class of those similarly situated, Plaintiff,
CITY OF EAST CHICAGO and HOUSING AUTHORITY OF THE CITY OF EAST CHICAGO, Defendants.
Gutierrez, Plaintiff, represented by Gavin M. Rose, ACLU of
Gutierrez, Plaintiff, represented by Kenneth J. Falk, ACLU of
Indiana & Jan P. Kubicki-Mensz, ACLU of Indiana.
Polk, Intervenor Plaintiff, represented by Gavin M. Rose,
ACLU of Indiana & Jan P. Kubicki-Mensz, ACLU of Indiana.
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. Â§ 636(b)(1)(B) &
R. CHERRY, Magistrate Judge.
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.
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. Â§ 636(b)(1)(B). This
Report constitutes the undersigned Magistrate Judge's
combined proposed findings and recommendations pursuant to 28
U.S.C. Â§ 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.
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.
City of East Chicago filed an Answer on May 13, 2016, and
Defendant ECHA filed an Answer on May 19, 2016.
August 22, 2016, the Court held an evidentiary hearing on
both pending motions. The same date, Plaintiff filed a Notice
of Supplemental Authority.
FOR PRELIMINARY INJUNCTION
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
Findings of Fact
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:
(last visited Sept. 6, 2016).
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, Â¶Â¶ 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 Â¶ 2. Plaintiff is indigent, and, therefore,
her rent is subsidized by ECHA. Id. at Â¶ 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 Â¶ 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 Â¶ 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 Â¶ 6.
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 Â¶ 52.
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, Â¶ 7).
Plaintiff states in her Affidavit that she did not give her
consent to any of the six searches or inspections.
Id. at Â¶ 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 Â¶
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 Â¶ 10.
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 Â¶ 11. She states that, during the
inspections, ECHA examines the cleanliness of the apartment.
Id. at Â¶ 12. ECHA employees are sometimes
accompanied by officers from the East Chicago Police
Department when conducting the inspections. Id.
the six inspections occurred on February 5, 2016.
Id. at Â¶ 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 Â¶ 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 Â¶ 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 Â¶ 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 Â¶ 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 Â¶ 18. Plaintiff
was not given any paperwork in conjunction with the
inspection. Id. at Â¶ 19.
five to ten minutes after the ECHA employee and the two
police officers left, Plaintiff received another knock on her
door. Id. at Â¶ 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 Â¶ 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 Â¶ 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 Â¶ 23. Plaintiff
could not see what the officer was doing, but he was in the
apartment for approximately fifteen minutes. Id.
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 Â¶ 24.
Plaintiff then asked if she could refuse the search.
Id. at Â¶ 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 Â¶ 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 Â¶ 27.
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 Â¶ 29-30. As a result, she feels forced to
submit to the searches, even though it is against her will.
Id. at Â¶ 31. She feels like a prisoner in her own
home. Id. at Â¶ 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 Â¶ 20.
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.
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.
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
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.
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, Â¶ 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).
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.
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.
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, Â¶
4). Cauley knocked on the door, and Plaintiff opened the door
and voluntarily stepped into the hallway. Id. at Â¶
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 Â¶ 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 Â¶ 7. Cauley did not observe Plaintiff
being ordered ...