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Mabry v. City of East Chicago

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

September 27, 2017

KENDRA MABRY, et al., Plaintiffs,
v.
CITY OF EAST CHICAGO, et al., Defendants.

          OPINION AND ORDER

          Joseph S. Van Bokkelen United States District Judge

         This matter is before the Court on the motion of Defendants City of East Chicago and its mayor, Anthony Copeland (sometimes collectively referred to as the “City Defendants”), to dismiss Plaintiffs' complaint as to them pursuant to Federal Rules of Civil Procedure 12(b)(6) and (7) (DE 9).

         A. Plaintiffs' Complaint

         This action is brought by Hispanic and African-American residents of East Chicago, Indiana (“Tenants”), who lived at the East Chicago Housing Authority (“ECHA”) affordable housing development know as the West Calumet Housing Complex (“Complex”). According to the complaint, the population of East Chicago is 42.9 percent African-American and 50 percent Hispanic. The residents of the Complex are also overwhelmingly African-American and Hispanic. The Tenants allege that the City Defendants, and co-defendants ECHA and its director, Tia Cauley (the “ECHA Defendants”), knew or should have known that the Complex was contaminated with lead, arsenic, and other toxic substances. Despite this knowledge, the City Defendants and ECHA Defendants allowed Tenants to live there without taking any steps to inform them of the risks. Then, in the summer of 2016, the Tenants were told to move with little notice, although the demolition of the complex had been planned sometime earlier.[1] The Tenants attached to their complaint a letter from Copeland to the residents, sent in June or July 2016, in which he stated the City and ECHA had recently been informed by the EPA that the ground at the Complex was highly contaminated with lead and arsenic and told them “we feel it is in your best interests to temporarily relocate your household to safer conditions.” (Compl., DE 1 at 16.)

         The Tenants allege that the City and ECHA Defendants' failure to protect them, concealment of the existence of lead and arsenic, and plans to demolish the Complex when it was economically convenient constitute intentional discrimination on the basis of their race, national origin, and familial status. They also claim that these defendants have subjected them to what they characterize as degrading and humiliating treatment in the form of excessive police patrols and limited ingress to and egress from the Complex. They allege that the plan to demolish the Complex, concealment of health risks and failure to mitigate them, unfair policing strategy, and denial of free ingress and egress at the Complex violate several provisions of the Fair Housing Act.[2] They further claim that the City and ECHA defendants run afoul of 42 U.S.C. § 1983, because in failing to give the Tenants notice and the opportunity to be heard, they deprived the Tenants of their due process rights secured by the Fourteenth Amendment and denied them equal protection, as guaranteed under the same Amendment. Finally, they claim that the City and ECHA defendants violated 42 U.S.C. § 1982, which provides “[a]ll citizens of the United States shall have the same right, in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property.”

         B. Standard for Evaluating a Motion to Dismiss

         When deciding a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the Court accepts as true all factual allegations in the complaint and draws all inferences in favor of the plaintiff. Bielanski v. County of Kane, 550 F.3d 632, 633 (7th Cir. 2008). The purpose of a Rule 12(b)(6) motion is to test the sufficiency of the pleadings, not to decide the merits of the case. See Gibson v. Chi., 910 F.2d 1510, 1520 (7th Cir. 1990). Rule 8(a)(2) provides that a complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” However, “recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp v. Twombly, 550 U.S. 544, 555 (2007)).[3] As the Supreme Court has stated, “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.” Id. Rather, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Id. at 678 (quoting Twombly, 550 U.S. at 570). A complaint is facially plausible if a court can reasonably infer from factual content in the pleading that the defendant is liable for the alleged wrongdoing. Id. (citing Twombly, 550 U.S. at 556).

         Federal Rule of Civil Procedure 12(b)(7) allows the defense of failure to join a party under Rule 19 to be presented by motion. Under Rule 19(a)(1), a person must be joined as a party if, in that person's absence, the court cannot accord complete relief among existing parties or the absent person claims an interest relating to the subject of the action and is situated such that without his presence, his ability to protect his interest may be impaired, or may leave an existing party to a substantial risk of incurring inconsistent obligations.

         C. Rule 12(b)(7)

         Turning first to the City Defendants' claim that Plaintiffs' action should be dismissed under Rule 12(b)(7), they assert that the Indiana Department of Environmental Management (IDEM), the Environmental Protection Agency (EPA) and the current or former directors of each are indispensable parties. Without explanation, they proclaim in their brief in support of their motion that the City cannot receive complete relief without them. Their only basis for this conclusion is the fact that the complaint states that the EPA and IDEM entered into an agreement with two other defendants for a clean-up of lead and arsenic contamination in East Chicago without giving Tenants notice of the agreement. The City Defendants conclude that “[i]t can hardly be argued that EPA and IDEM are not parties that should have been joined.” (DE 10 at 10.) These naked assertions utterly fail to convince the Court that the absent entities should have been joined. Accordingly, the Court will not dismiss this action on that ground.

         D. Rule 12(b)(6)

         The City Defendants first argue that the claims against Copeland, in both his individual and official capacities, must be dismissed. They are correct insofar as suing him in his official capacity under 42 U.S.C. § 1983 is tantamount to suing the City, which is already a defendant. See Monell v. N.Y.C. Dep't of Social Services, 436 U.S. 658, 690, n. 55 (1978). Thus all § 1983 claims against Copeland in his official capacity are redundant and will be dismissed.

         With respect to the individual capacity claims, the City Defendants argue that the Tenants have failed to show in their complaint that Copeland personally discriminated against them or caused any constitutional deprivation. To state a claim against a public official in his personal capacity under § 1983, the complaint must allege facts to show that the official was personally responsible for the deprivation of a constitutional right. A defendant has personal responsibility if he directed the conduct causing the constitutional violation or if it occurred with his knowledge or consent. Sanville v. McCaughtry, 266 F.3d 724, 740 (7th Cir. 2001).

         The complaint does allege facts that show Copeland was personally involved in the decision to evacuate the Complex in 2016, but not that he participated with ECHA in the formulation of the earlier plan to demolish it, that he personally knew about contamination there but failed to protect the Tenants, or that he was personally involved in the conduct the Tenants characterize as degrading and humiliating. In any event, even if Copeland's personal involvement is adequately pleaded, the Tenants' allegation that his wrongful acts constitute intentional discrimination against them because of their race, national origin, and familial status is a bare assertion that amounts to nothing more than the formulaic recitation of the elements of a discrimination claim. As such it is not entitled to be accepted as true. See Iqbal, 556 U.S. at 680-81. Disregarding this conclusion, the complaint contains no factual allegations to plausibly suggest that Copeland's actions were taken for the purpose of intentionally adversely affecting Tenants ...


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