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UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

MARY BETH WRIGHT,

Plaintiff, and as Representative

Of a Class of similarly situated individuals,

Case No. 3:15-cv-00532-RLM-CAN

v.

MISHAWAKA HOUSING AUTHORITY,

an entity, and

COLLEEN OLUND, Executive Director

of the MISHAWAKA HOUSING

AUTHORITY,

Defendants.

MEMORANDUM IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS

PURSUANT TO FED. R. CIV P. 12(b)(6), 12(b)(1), and 23(d)(1)(D)

Plaintiff’s complaint fails to state any federal cause of action and should be dismissed in

its entirety.

SUMMARY OF FACTS AS ALLEGED IN THE COMPLAINT1

Plaintiff has filed a shotgun-style seven-count, putative class action purportedly stating

claims under the Fair Housing Act (Count I), the Americans with Disabilities Act (Count II), the

Rehabilitation Act (Count III), 42 U.S.C. § 1983 (Count IV), Indiana state tort law (Count V),

the due process and equal protection clauses of the Fourteenth Amendment to the U.S.

Constitution (Count VI), and the “due course of law” provision of the Indiana Constitution.

Plaintiff alleges that she is a disabled individual who resided in an apartment she rented from

Defendant Mishawaka Housing Authority (“MHA”). (Dkt. # 1, at ¶¶ 6, 7). Plaintiff further

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Plaintiff’s complaint omits most of the relevant facts surrounding her surrender of the premises at issue – facts that

further demonstrate she has no viable claim against the defendants. Nevertheless, this Motion to Dismiss assumes

the truth of the facts pled in the complaint even where the allegations are factually inaccurate.

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alleges that she was hospitalized in 2015 and that she received a notice that she would be evicted

from the apartment for failing to mitigate a bedbug infestation — though she does not allege the

date of her hospitalization, the date she received the notice, or the number of previous notices she

received. (Dkt. # 1, at ¶ 11). The “notice” Plaintiff incorporates by reference into her complaint

and relies on as the basis for her claims (See Dkt #1 at ¶ 11) is attached hereto as Exhibit 1.2The

notice explains that Plaintiff repeatedly failed to address the unsanitary conditions in her

apartment over the course of six months. (See Dkt # 17-1, at p. 1). The notice then explains

various ways in which Plaintiff’s failure to cooperate and keep her apartment in sanitary

condition constituted violations of her lease, which was therefore terminated. (See Dkt. # 17-1, at

pp. 1-2). The notice advised Plaintiff that she had “the right to reply as you wish, to examine the

Mishawaka Housing Authority’s documents directly relevant to the termination, to use the

grievance procedures (which are outlined in the Resident Grievance Procedure), and/or to defend

this action in court,” (Dkt. # 17-1, p. 2). As outlined in the notice, MHA removed Ms. Wright’s

personal property upon her surrender of the premises. (Dkt. # 1, at ¶¶ 11-12, Dkt. #17-1, at p. 3).

According to the complaint, MHA failed to provide Ms. Wright with some unspecified

accommodation that she asserts she requested – but does not allege what the requested

accommodation was or when she requested it. (Dkt. # 1, at ¶ 13). Ms. Wright does not allege that

the unspecified accommodation she supposedly requested was reasonable, necessary, or in any

2 The Court can and should consider this document in evaluating whether the complaint states any cause of

action. See Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007) (“[C]ourts must consider the

complaint in its entirety, as well as other sources courts ordinarily examine when ruling on Rule 12(b)(6) motions to

dismiss, in particular, documents incorporated into the complaint by reference[.]”); Venture Associates Corp. v.

Zenith Data Sys. Corp., 987 F.2d 429, 431 (7th Cir. 1993) (“Documents that a defendant attaches to a motion to

dismiss are considered part of the pleadings if they are referred to in the plaintiff's complaint and are central to her

claim.”). This notice is central to Plaintiff’s claims because her claims are based on the termination of her lease with

MHA and the notice is the instrument by which that termination occurred. In fact, sending the notice is the only

action plaintiff alleges MHA took with respect to her housing (as distinguished from her chattels). The notice is

therefore the entire basis of her housing discrimination claims. The notice is also central to plaintiff’s due process

claims, which require her to demonstrate that the notice she received was constitutionally inadequate.

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way linked to her disability-related needs. Ms. Wright does not allege that she fulfilled her

contractual obligations under her lease, nor does she allege that her failure to fulfill the

contractual obligations under her lease was in any way related to her disability. Ms. Wright

further fails to articulate any way in which the available grievance procedures were

constitutionally inadequate. Finally, Ms. Wright does not articulate how MHA’s actions

implicate a class of similarly-situated individuals.

SUMMARY OF ARGUMENT

Each and every count fails as a matter of law. Plaintiff’s three discrimination claims

(Counts I-III) fail because she was not discriminated against. Plaintiff alleges that she is disabled

and that her lease was terminated, but she never alleges any connection between these two

unrelated facts. Plaintiff’s termination notice makes clear that she her lease was terminated –

consistently with her lease agreement – for the non-discriminatory purpose of eradicating a

bedbug infestation on the premises. Plaintiff’s failure to connect her disability to her lease

termination in a way that would render the termination “discriminatory” is further exposed by

comparing her paper-thin allegations to the allegations she would have needed to plead to

establish a cause of action for discrimination.

There are three theories under which a plaintiff can establish discrimination: disparate

treatment, disparate impact, or failure to accommodate. Plaintiff cannot establish discrimination

under any of these theories. Plaintiff has not established a “disparate treatment” claim because

she has not alleged that she was treated differently than any non-disabled individuals, nor has she

alleged that any such treatment was because of her disability. Plaintiff has not established a

“disparate impact” claim because she has not identified any rules or policies of defendants’ that

had an adverse impact on disabled individuals, nor has she identified any other disabled

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individuals who suffered this alleged adverse impact. Plaintiff has not established a “failure to

accommodate” claim because she has not alleged that she requested and was denied a reasonable

accommodation that was necessary as a result of her disability.

Plaintiff’s constitutional claims (Counts IV and VI) similarly fail because she has not

alleged any deprivation of her constitutional rights. Plaintiff cannot state an “equal protection”

claim because she was not treated differently from anybody else, and she cannot state a “due

process” claim because she has not identified any defects in the process she was offered. On the

contrary, the “notice” that forms the entire basis of Plaintiff’s complaint demonstrates that she

was afforded substantial opportunity to comply with the requirements of her lease and, when she

failed to do so, was afforded various mechanisms for challenging the termination of her lease.

Plaintiff offers no explanation for her failure to take advantage of these procedures.

Plaintiff’s failure to state a federal cause of action defeats this Court’s jurisdiction over

her state law claims (Counts V and VII), which are meritless in any event.

Finally, the Court should strike Plaintiff’s claims to represent a putative class. First,

Plaintiff has not alleged facts indicating that any other members of her proposed class even exist.

Second, Plaintiff has not alleged any facts plausibly suggesting she meets the requirements to act

as representative for the (hypothetical) class members.

PLEADING STANDARD

“It is by now well established that a plaintiff must do better than putting a few words on

paper that, in the hands of an imaginative reader, might suggest that something has happened to

her that might be redressed by the law.” Swanson v. Citibank, N.A., 614 F.3d 400, 403 (7th

Cir.2010) (emphasis in original). Rather, “[t]o survive a motion to dismiss, a complaint must

contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its

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face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “[I]n considering the plaintiff's factual

allegations, courts should not accept as adequate abstract recitations of the elements of a cause of

action or conclusory legal statements.” Brooks v. Ross, 578 F.3d 574, 581 (7th Cir.2009).

Instead, a plaintiff must plead “‘enough facts to raise a reasonable expectation that discovery will

reveal evidence’ supporting the plaintiff's allegations.” Id. quoting Bell Atlantic Corp. v.

Twombly, 550 U.S 544, 556 (2007) (emphasis added). “Threadbare recitals of the elements of a

cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at

678. “Where a complaint pleads facts that are ‘merely consistent with’ a defendant's liability, it

‘stops short of the line between possibility and plausibility of entitlement to relief.’” Id. (quoting

Twombly, 550 U.S at 557).

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ARGUMENT

I. Plaintiff’s Fair Housing Act Claim (Count I) fails to state a cause of action.

In relevant part, the Fair Housing Act (FHAA) prohibits a public entity from

discriminating in the rental of a dwelling on the basis of a handicap or other protected

characteristic (i.e. race, color, religion, sex, familial status, or national origin) of the renter. 42

U.S.C. § 3604. A plaintiff may prove “discrimination” under the FHAA either by showing that

she was intentionally treated differently on the basis of her protected characteristic or by

“challenging practices that have a ‘disproportionately adverse effect on [protected individuals]’

and are otherwise unjustified by a legitimate rationale” Texas Department of Housing &

Community Affairs v. Inclusive Communities Project, Inc., ––– U.S. ––––, 135 S.Ct. 2507, 2513

(2015), quoting Ricci v. DeStefano, 557 U.S. 557, 577 (2009). These claims are referred to as

“disparate-treatment” claims and “disparate-impact” claims, respectively. Id. A plaintiff may

also prove discrimination under the FHAA by showing a failure to provide her with an

“‘accommodation in rules, policies, practices, or services when such accommodation may be

necessary to afford [her] equal opportunity to use and enjoy a dwelling.’” Wisconsin Cmty.

Servs. v. City of Milwaukee, 465 F.3d 737, 753 (7th Cir.2006), quoting 42 U.S.C. § 3604(f)(3)(B)

The laundry list of conclusory legal statements in paragraph 18 of the complaint renders

it unclear whether Plaintiff seeks to assert her FHAA claim under a theory of disparate treatment,

disparate impact, or failure to accommodate. Importantly, this lack of clarity is irrelevant because

Plaintiff’s discrimination claims in Count I fail regardless of the theory.

a. Plaintiff cannot state a “disparate treatment” claim under the FHAA because

she has not compared her treatment with any other individuals’ treatment.

Disparate treatment is the “classic form” and “most easily understood type of

discrimination.” Texas Department of Housing & Community Affairs v. 135 S.Ct. at 2533 (Alito,

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J., dissenting). It is, simply, “[t]reating someone less favorably than others because of a

protected trait.” Id. (emphasis added, internal citation omitted). To the extent Plaintiff attempts

to state her FHAA claim under a “disparate treatment” theory, that claim can easily be discarded

because she has not made the requisite showing “that someone else has been treated differently.”

Wiggington v. Bank of America Corp., 770 F.3d 521, 522 (7th Cir. 2014). In other words,

because Plaintiff has not alleged how anyone other than herself was treated, she has not alleged

the “less favorably than others” component of a disparate treatment claim. Plaintiff has not

alleged, for example, that individuals without disabilities continued living in bedbug-infested

apartments – while failing to cooperate with exterminators for six months – without receiving a

termination notice like her own. Short of such an allegation, Plaintiff has no basis for asserting

that she received disparate treatment from MHA.

Plaintiff’s disparate treatment claim also fails because she has not alleged that she was

evicted for a discriminatory purpose. See, e.g., See Texas Department of Housing & Community

Affairs v. Inclusive Communities Project, Inc., 135 S.Ct. at 2513 (describing a disparatetreatment claim as one in which “plaintiff must establish that the defendant had a discriminatory

intent or motive.”); Hopkins v. Springfield Housing Authority, 592 Fed.Appx.528, 529-530 (7th

Cir. 2015) (Denying the plaintiff’s discrimination claim in part because “Hopkins concedes that

the Housing Authority reduced his subsidy for a nondiscriminatory reason—because his

household size changed.”). In fact, Plaintiff acknowledges that the termination notice indicates it

was issued for the non-discriminatory purpose of preventing the presence of bedbugs on its

premises. (See Dkt #1 at ¶ 11). Plaintiff’s failure to allege any discriminatory purpose of MHA’s

actions means she cannot make the required showing that she was treated less favorably

“because of” a protected trait and therefore cannot state a claim for disparate treatment.

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In short, Plaintiff’s disparate treatment claim required her to allege that: 1) MHA

intended to treat her less favorably than non-handicapped tenants; 2) MHA actually did treat her

less favorably than non-handicapped tenants; 3) MHA treated her that way because she was

handicapped. Plaintiff has not alleged any of these things, and her disparate treatment claim

under the FHAA fails accordingly.

b. Plaintiff cannot state a “disparate impact” claim under the FHAA because she

has not compared the impact of MHA’s policies on her and other disabled

individuals with their impact on non-disabled individuals.

Plaintiff’s “disparate impact” claim is similarly as easy to discard. In order to state a

disparate impact claim under the FHAA, a Plaintiff must show that the challenged policies or

practices have a “disproportionately adverse effect on [protected individuals] and are otherwise

unjustified by a legitimate rationale” Texas Department of Housing & Community Affairs v.

Inclusive Communities Project, Inc., 135 S.Ct. at 2513 (internal citation omitted). Accordingly,

when a plaintiff “doesn't provide any allegations as to other disabled tenants who were treated

adversely due to [defendant’s] policy or practice, [s]he doesn't state a claim for disparate impact

under the FHA, ADA, or Rehabilitation Act.” A.B. ex rel. Kehoe v. Hous. Auth. of South Bend,

No. 3:11–CV–163, 2012 WL 1877740, *7 (N.D.Ind. May 18, 2012). Moreover, mere correlation

showing that protected individuals are disproportionately impacted is insufficient: “[a] plaintiff

who fails to allege facts at the pleading stage or produce statistical evidence demonstrating a

causal connection cannot make out a prima facie case of disparate impact.” Texas Department of

Housing & Community Affairs, 135 S.Ct. at 2523

Plaintiff has not identified any other disabled individuals who were adversely affected by

MHA’s “policy or practice” and therefore has not stated a claim for disparate impact. Indeed,

Plaintiff has not even identified the specific “policy or practice” that she claims has a disparate

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impact on disabled individuals, nor has she identified the supposedly adverse effect – she has

not, for example, alleged that the number of disabled individuals receiving termination notices

for bedbug violations was disproportionate to the number of disabled individuals living in MHA

housing. Plaintiff offers no basis for concluding that some unidentified “policy or practice” had

some unidentified adverse impact on any unidentified disabled individuals. Further, Plaintiff has

not alleged that the undemonstrated disparate impact on unidentified disabled individuals was

caused by the unarticulated “policy or practice”. To the extent Plaintiff even attempts to state a

disparate impact claim under the FHAA, she fails in just about every way imaginable.

Finally, Plaintiff fails to state a “disparate impact” claim for the additional reason that

MHA’s termination of her lease was justified by its need to protect other tenants from health

risks. (See Dkt. #17-1, pp. 1-2). Therefore, Plaintiff cannot establish that the practice was

“otherwise unjustified by a legitimate rationale.” Texas Department of Housing & Community

Affairs v. Inclusive Communities Project, Inc., 135 S.Ct. at 2513.

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c. Plaintiff cannot state a “failure to accommodate” claim under the FHAA

because she has not demonstrated that she asked for and was denied a

reasonable and necessary accommodation linked to her disability.

Plaintiff’s effort to establish that she was discriminated against through MHA’s “failure

to accommodate” her under the FHAA fails at least seven different ways as a matter of law.

A failure to accommodate claim is premised on a regulated entity’s failure to provide

disabled individuals with “‘accommodation in rules, policies, practices, or services when such

accommodation may be necessary to afford [them] equal opportunity to use and enjoy a

dwelling.’” Wisconsin Cmty. Servs. v. City of Milwaukee, 465 F.3d 737, 753 (7th Cir.2006),

quoting 42 U.S.C. § 3604(f)(3)(B). Plaintiff here has not identified any rule, policy, practice, or

service for which she required an accommodation. This is the first way Plaintiff’s claim fails as a

matter of law. Assuming arguendo that Plaintiff claims to have required an accommodation to

MHA’s practice of terminating her lease for serious and repeated violations of material terms and

threatening the health and welfare of other tenants, Plaintiff still has not established the elements

of a claim for failure to accommodate.

“To prevail on an FHA accommodation claim, a disabled plaintiff must establish that

[s]he requested and was denied an accommodation that was both reasonable and necessary to

afford [her] an equal opportunity to use and enjoy [her] dwelling. US v. WHPC-DWR, LLC 491

Fed.Appx. 733, 736 (7th Cir. 2012). This means that, in order to state a cause of action for failure

to accommodate, a plaintiff must show “that her requested accommodation is (1) linked to her

disability-related needs, (2) necessary to afford her an equal opportunity to enjoy Section 8

benefits and (3) possible to implement.” Huberty v. Washington Cnty. Housing & Redevelopment

Auth., 374 F.Supp.2d 768, 773 (D.Minn.2005), citing Peebles v. Potter, 354 F.3d 761, 769 (8th

Cir.2004), Wood v. Crown Redi–Mix, Inc., 339 F.3d 682, 687 (8th Cir.2003); Lapid–Laurel,

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L.L.C. v. Zoning Bd. of Adjustment of Scotch Plains, 284 F.3d 442, 458-459 (3d Cir.2002). “In

addition, under our circuit's burden-shifting framework, a plaintiff cannot establish a prima facie

case of discrimination without showing that the accommodation [s]he sought is reasonable on its

face.” Oconomowoc Residential Programs v. City of Milwaukee, 300 F.3d 775, 783 (7th

Cir.2002).

Plaintiff has not satisfied any of these requirements. Plaintiff has not identified any

accommodation that she requested. Plaintiff has not identified any accommodation that MHA

refused to provide. Plaintiff has not made a prima facie showing that any such accommodation

would have been reasonable in light of the risks that Plaintiff’s continued presence on the

premises imposed on the health and welfare of other tenants. Plaintiff has not made any showing

that any such accommodation would have been linked to her disability in any way – Plaintiff has

not alleged that her disability somehow prevented her from complying with the terms of her

lease. Plaintiff has not made any showing that any accommodation was even possible in light of

HUD regulations that were binding on MHA and implemented in part to protect the health of

public housing tenants.

Even if Plaintiff had satisfied each of the five requirements in the preceding paragraph –

and she has not satisfied any of them – she still would not state a cause of action for failure to

accommodate because she has not shown that any accommodation was necessary. First, Plaintiff

has not articulated what accommodation she needed or why she needed it. Even if she had, she

still would not meet the “necessity” requirement because she has not demonstrated that any

accommodation MHA could have provided would have actually helped her. “[T]he concept of

necessity requires at a minimum the showing that the desired accommodation will affirmatively

enhance a disabled plaintiff's quality of life by ameliorating the effects of the disability.” Bronk

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v. Ineichen, 54 F.3d 425, 429 (7th Cir. 1995). Plaintiff cannot meet this requirement because she

cannot show that any reasonable accommodation would have ameliorated the effects of her

disability.

Finally, it is worth noting that Defendants’ alleged “seizure” of Plaintiff’s wheelchair and

furniture are irrelevant to her FHAA claim. The Fair Housing Act, as its name implies, forbids

discrimination “in the rental of a dwelling.” Even if Defendants had seized Plaintiff’s property

(which is not the case) and even if such seizure had been discriminatory (which Plaintiff has not

even alleged), those facts would not bring Plaintiff any closer to establishing a claim of housing

discrimination.

In short, there are many requirements a Plaintiff must plead in order to state a failure to

accommodate claim under the FHAA – and Plaintiff has not pled any of them.

II. Plaintiff’s Americans with Disabilities Act claim (Count II) fails to state a

cause of action

The Americans with Disabilities Act (“ADA”) “forbids discrimination against persons

with disabilities in three major areas of public life: (1) employment, which is covered by Title I

of the statute; (2) public services, programs and activities, which are the subjects of Title II; and

(3) public and private lodging, which is covered by Title III.” Wisconsin Community Services,

Inc. v. City of Milwaukee, 465 F.3d 737, 750 (7th Cir.2006)(citations omitted). Title II of the

ADA “provides that ‘no qualified individual with a disability shall, by reason of such disability,

be excluded from participation in or be denied the benefits of the services, programs, or activities

of a public entity.’” Id., quoting 42 U.S.C. § 12132. Like under the FHAA, a plaintiff may prove

discrimination under Title II of the ADA by showing: “that (1) the defendant intentionally acted

on the basis of the disability, (2) the defendant refused to provide a reasonable modification, or

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(3) the defendant's rule disproportionally impacts disabled people.” Washington v. Indiana High

School Athletic Association, Inc., 181 F.3d 840, 847 (7th Cir.1999).

“The requirements for reasonable accommodation under the ADA are the same as those

under the FHAA.” Oconomowoc Residential Programs v. City of Milwaukee, 300 F.3d 775, 783

(7th Cir.2002). Therefore, Plaintiff’s accommodation claim fails under the ADA for the same

reasons it fails under the FHAA: Plaintiff has not identified any accommodation that she

requested and was denied, nor has she alleged facts to support a conclusion that any unidentified

accommodation was reasonable, necessary, and linked to her disability. Plaintiff’s failure to meet

these requirements is explained more fully in Section I, supra. To the extent Plaintiff attempts to

state an ADA claim under theories of disparate treatment and/or disparate impact, those claims

likewise fail under the ADA for essentially the same reasons that they fail under the FHA. Stated

briefly, Plaintiff has not alleged that “the defendant intentionally acted on the basis of the

disability,” nor has she identified any rule that “disproportionally impacts disabled people.”

Plaintiff therefore cannot state a claim under the framework established in Washington, 181 F.3d

at 847.

Plaintiff makes the conclusory assertion that each and every element of her claim of

discrimination under the ADA is somehow “evidenced by the seizure of her a (sic) motorized

wheelchair, furniture, and eviction” but does not explain how these actions are “evidence” of

anything other than themselves. Logically, Plaintiff’s assertion that the actions themselves also

prove the intent behind the actions makes no sense – by Plaintiff’s logic, all evictions would be

per se discriminatory. More importantly, Plaintiff’s “evidence” does not implicate the abovearticulated elements of a discrimination claim – Plaintiff provides no basis for this Court to

conclude that MHA’s actions constituted disparate treatment, disparate impact, or a failure to

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accommodate. Plaintiff’s bald assertion that the actions themselves “evidence” discrimination

and discriminatory intent is no more true the third time she repeats it than it is the first.

Moreover, defendants’ alleged “seizure” of Plaintiff’s wheelchair and furniture are irrelevant to

her ADA claim. As the complaint acknowledges, Title II of the ADA forbids an entity from

denying a disabled individual “the benefits of [its] services, programs, or activities. Even if

defendants had seized Plaintiff’s property (which is not the case) and even if such seizure had

been discriminatory (which Plaintiff has not even alleged), those facts would not bring Plaintiff

any closer to establishing a claim under the ADA because that property was not a service,

program, or activity provided by the defendants.

III. Plaintiff’s Rehabilitation Act claim (Count III) fails to state a cause of action

“The Rehabilitation Act of 1973 incorporates the prohibitions contained within the

Americans with Disabilities Act and requires [covered entities] to offer “reasonable

accommodation” to “qualified individuals with a disability.” Bellino v. Peters, 530 F.3d 543, 548

(7th Cir. 2008) (citations omitted). Just as under Title II of the ADA, a plaintiff may establish

discrimination under § 504 of the Rehabilitation Act by showing: “that (1) the defendant

intentionally acted on the basis of the disability, (2) the defendant refused to provide a reasonable

modification, or (3) the defendant's rule disproportionally impacts disabled people.” Washington,

181 F.3d at 847. “Title II of the ADA was modeled after § 504 of the Rehabilitation Act; the

elements of claims under the two provisions are nearly identical, and precedent under one statute

typically applies to the other.” Id, at 845, n. 6. See also Peters v. City of Mauston, 311 F.3d 835

(7th Cir. 2002) (“This Court looks to the standards applied under the Americans with Disabilities

Act of 1990 (ADA), to determine whether a violation of the Rehab Act occurs in the

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employment context.”). Therefore, the reasons that Plaintiff’s ADA claim fail, articulated above,

apply with equal force to her Rehabilitation Act claim.

However, there are some distinctions between the Acts that make the Rehabilitation Act

narrower than the ADA. “The chief difference between the two statutes is that the Rehabilitation

Act applies only to entities receiving federal funding, while Title II of the ADA contains no such

limitation.” Washington, 181 F.3d at 845 n.6. “Another difference is that the Rehabilitation Act

requires that the exclusion be solely by reason of disability, while the ADA requires only that the

exclusion be by reason of the disability.” Id. (emphasis in original). While Plaintiff has alleged

that MHA receives federal funding, she has not alleged that its actions were based solely on her

disability. Unlike her conclusory allegations regarding discrimination, Plaintiff has not even

made any assertion that MHA’s actions were “solely” for discriminatory purpose – nor could

she, as Plaintiff admits that MHA identified the non-discriminatory purpose of eradicating the

bed beg infestation in its building. Absent any allegation that this identified purpose was a sham,

Plaintiff cannot show that MHA’s actions were “solely” the result of her handicap and therefore

cannot state a cause of action under § 504 of the Rehabilitation Act.

IV. Plaintiff’s Federal Constitutional Claims (Counts IV and VI) fail to state a

cause of action

Counts IV and VI of Plaintiff’s complaint assert in conclusory terms that defendants

violated Plaintiff’s federal constitutional rights to due process and equal protection under the law

through their “seizure” of personal property. These claims are not supported by any factual

allegations and are without merit.

As an initial matter, Plaintiff’s direct Fourteenth Amendment claim (Count VI) is

duplicative of her Section 1983 claim (Count IV) and should be dismissed as such. “Section

1983 is not itself a source of substantive rights, but merely provides a method for vindicating

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federal rights elsewhere conferred.” Albright v. Olivier, 510 U.S. 266, 271 (1994)(internal

quotation marks omitted). Therefore, “[t]he general rule is that a plaintiff has no cause of action

on his federal constitution claims when the defendant he wishes to hold liable is amenable to suit

under 42 U.S.C. § 1983.” Johnson v. Anderson, No. 05 CV 0421, 2006 WL 2524125, *2, (S.D.

Ind.Aug. 29, 2006). “In other words, when a direct constitutional claim is available to plaintiff

against the defendant and can be encompassed in a § 1983 claim, the § 1983 claim is deemed an

effective remedy for plaintiff's constitutional claims so as to defeat the existence of a direct

constitutional action.” Id., citing Carpenter v. City of Fort Wayne, 637 F.Supp. 889, 892

(N.D.Ind.1986), vacated and remanded, 818 F.2d 33 (Table) (7th Cir.1987). See also Verdon v.

Consolidated Rail Corp., 828 F.Supp. 1129, 1136 (S.D.N.Y. 1993) (“...Congress enacted § 1983

to serve as the means by which claims like plaintiff's can be brought under the Due Process

Clause of the Fourteenth Amendment in place of asserting the claim more generally under the

Fourteenth Amendment....Thus, we dismiss plaintiff's Fourteenth Amendment Due Process

Claim as duplicative[.]”; Valerio v. Dahlberg, 716 F.Supp. 1031, 1036 (S.D. Ohio 1988)

(Holding that the Court “does not recognize direct constitutional claims because 42 U.S.C. §

1983 “is the exclusive remedy for the alleged constitutional violations” and concluding “that the

Fourteenth Amendment claim in the instant case was subsumed under the time-barred 42 U.S.C.

§ 1983 claim.”). Plaintiff’s direct constitutional claims are therefore subsumed by her Section

1983 claim.

Regardless, Plaintiff’s attempt to state a cause of action for alleged violations of the

Fourteenth Amendment – either directly or via § 1983 – fails as a matter of law. While Plaintiff

claims to establish Fourteenth Amendment violations under both the Equal Protection Clause and

the Due Process Clause, she has not alleged facts to support the elements of either claim.

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a. Plaintiff does not state a claim under the Equal Protection Clause.

“To state a prima facie claim under the Equal Protection Clause of the Fourteenth

Amendment, a plaintiff must demonstrate that (1) [s]he is otherwise similarly situated to

members of the unprotected class; (2) [s]he was treated differently from members of the

unprotected class; and (3) the defendant acted with discriminatory intent.” Greer v. Amesqua,

212 F.3d 358, 370 (7th Cir. 2000). While Plaintiff arguably addresses the first element by

alleging she is “an otherwise qualified individual with a handicap,” she has not established the

second or third elements – or even alleged any facts implicating them.3Specifically, Plaintiff

has not alleged that she was treated differently than tenants without any handicap. Plaintiff also

has not alleged that either defendant took any actions with discriminatory intent. Without these

allegations, Plaintiff has failed to state a cause of action under the Equal Protection Clause.

b. Plaintiff does not state a claim under the Due Process Clause.

Plaintiff has similarly failed to state a due process claim because she has not alleged any

way in which the available procedures were inadequate. Plaintiff argues that she was deprived of

a property interest – but that is not what the Constitution forbids. The constitution forbids such

deprivation “without due process of law.” Plaintiff’s complaint does not allege that she was

denied such process. Specifically, Plaintiff has not alleged that the termination notice she

received was in any way inadequate, nor that the procedures the notice offered her for disputing

the termination were inadequate. Without those allegations, Plaintiff cannot establish a due

process violation. “The essence of due process is the requirement that a person in jeopardy of

serious loss be given notice of the case against him and opportunity to meet it.” Mathews v.

Eldrige, 424 U.S. 319, 348-349 (1976) (internal citation omitted). “All that is necessary is that

3 Even Plaintiff’s pleading of the first element strictly conclusory, as she does not allege facts to support the element

– specifically, she does not allege that she fulfilled her contractual duties under her lease.

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the procedures be tailored, in light of the decision to be made, to ‘the capacities and

circumstances of those who are to be heard’, to insure that they are given a meaningful

opportunity to present their case." Id., at 349, quoting Goldberg v. Kelly, 397 U.S., at 268-269.

Plaintiff concedes she was given notice, and the notice plaintiff received informed her of

her opportunities to be heard. (Dkt. # 1, at ¶¶ 11-12, and Dkt #17-1 p. 2). Plaintiff was given

opportunities over the course of six months to correct her lease violations. (Dkt #17-1 p. 2).

When Plaintiff still failed to comply and MHA terminated her lease, the notice that plaintiff

admits she received informed her: “Please be advised that you have the right to reply as you

wish, to examine the Mishawaka Housing Authority’s documents, directly relevant to the

termination, to use the grievance procedures (which are outlined in the Resident Grievance

Procedure), and/or to defend this action in court.” (Dkt #17-1 p. 2). In other words, the notice

informed Plaintiff of the case against her and the mechanisms through which she could dispute

that case, as outlined in Mathews v. Eldrige, 424 U.S. at 348-249. The Constitution requires

nothing more than that.

V. Plaintiff’s state law claims (Counts V and VII) should be dismissed pursuant

to pursuant to Fed. R. Civ. P. 12(b)(6) because they fail to state a cause of

action and because this court lacks subject matter jurisdiction over them

pursuant to Fed. R. Civ. P. 12(b)(1)

Plaintiff’s state law claims are meritless and should be dismissed pursuant to Fed. R. Civ.

P. 12(b)(6). In the event the court declines to dispose of Plaintiff’s claims on the merits, it

should dismiss them pursuant to Fed. R. Civ. P. 12(b)(1) for lack of subject matter jurisdiction.

“[A]s a general rule, ‘when all federal claims are dismissed before trial, the district court should

relinquish jurisdiction over pendent state-law claims rather than resolving them on the merits.’”

Kehoe, 2012 WL 1877740, at *11, quoting Kennedy v. Schoenberg, Fisher & Newman, Ltd., 140

F.3d 716, 727 (7th Cir.1998). “The exceptions to this rule are when the statute of limitations has

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run on the state law claims, substantial judicial resources have already been used, or it is

absolutely clear how the state law issues should be decided.” Id. citing Sharp Electronics Corp.

v. Metropolitan Life Ins. Co., 578 F.3d 505, 514–15 (7th Cir.2009). The third exception, for

cases in which “it is absolutely clear how the state law issues should be decided,” applies when

“the district court, in deciding a federal claim, decides an issue dispositive of a pendent claim” or

“when the state-law claims are patently frivolous.” Id.

Plaintiff has not stated any federal cause of action, and the first two exceptions to the

general rule against exercising jurisdiction over pendent state-law claims plainly do not apply.

Nevertheless, this Court should dismiss Plaintiff’s state law claims on the merits because it is

“absolutely clear how the state law issues should be decided.”

a. Plaintiff cannot state a claim for conversion under Indiana state law

Plaintiff has failed to plead the elements of her state law claim for conversion (Count V).

Indiana law requires a plaintiff alleging conversion to establish that the defendant “knowingly or

intentionally exerted unauthorized control over” property owned by the plaintiff. Coleman v.

Vukovich, 825 N.E.2d 397, 407 (Ind.App.2005). Plaintiff falls short of this showing in two

important respects. First, Plaintiff has not properly pled that she owned the property MHA

allegedly seized from her surrendered apartment. This failure is important because, in fact, she

did not own the property at issue: it was legally abandoned. Plaintiff’s lease with MHA and her

Notice of Termination both plainly provide that any property remaining in the unit would be

deemed abandoned. (Dkt. #17-1 at p.3). This provision is important even if Plaintiff did not

intend to abandon her property: her apparent authorization for Defendants to remove her

personal property from her premises – manifested by her failure to remove that property herself

or to object to its removal– prevents Plaintiff from establishing the “knowingly or intentionally”

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element of her conversion claim – Defendants did not know their seizure of the property was

unauthorized.

While the court may not consider the fact of apparent authorization, the court may

consider Plaintiff’s failure to plead that she owned the property at issue and her failure to plead

that any unauthorized seizure was knowing or intentional. The fact that seizure was actually

authorized demonstrates why Plaintiff’s failure to plead the intent element is fatal to her

conversation claim. Because Plaintiff failed to plead the essential elements of her conversion

claim, the proper outcome of the claim is “absolutely clear” and this court should dismiss it

pursuant to Fed. R. Civ. P. 12(b)(6).

b. Plaintiff cannot state a “due course of law” claim under Indiana law.

Plaintiff’s state “due course of law” claim (Count VII) may also be readily dismissed. “In

the context of a procedural right to ‘remedy by due course of law’ in a civil proceeding, as

IHSAA held, the Indiana Constitution has developed a body of law essentially identical to federal

due process doctrine.” McIntosh v. Melroe Co., 729 N.E.2d 972 (Ind. 2000), citing Indiana

High Sch. Athletic Ass'n v. Carlberg, 694 N.E.2d 222, 241 (Ind.1997). The differences between

Indiana and federal due process protections are only in the context of criminal procedure. Id.

Because Plaintiff’s case is not a criminal one, her cause of action under the “due course of law”

provision of Indiana’s constitution rises and falls with her federal cause of action for a due

process violation. Therefore, Plaintiff’s failure to state a federal cause of action for a due process

violation – for the reasons articulated above – is dispositive of her state “due course of law”

claim and this court should exercise its jurisdiction to dismiss that claim on the merits.

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c. If the court determines the merits of Plaintiff’s state law claims are not clear, it

should dismiss them for lack of subject matter jurisdiction.

In the event the court determines that the proper outcome of either of Plaintiff’s state law

claims is not “absolutely clear” on the merits, it should decline to exercise jurisdiction over

Plaintiff’s state law claims and dismiss them pursuant to Fed. R. Civ. P. 12(b)(1) under the

general rule that “the district court should relinquish jurisdiction over pendent state-law claims”

because neither of the other exceptions applies – the statute of limitations has not expired, and

this court has not yet expending substantial judicial resources on this case. See Kehoe, 2012 WL

1877740, at *11.

VI. The Court should strike Plaintiff’s class allegations.

Finally, the Court should strike Plaintiff’s class allegations under Fed. R. Civ. Pro.

23(d)(1)(D). Plaintiff purports to represent a nebulous class consisting of: “all past, current and

future MHA tenants with handicaps or disabilities (A) in need of accommodations or

modifications of MHA policies, because of their handicaps or disabilities, in their housing and

related services; (B but who did not or will not receive such accommodations or modifications

(C) and who suffered or are likely to suffer injuries as a result of the actions or inaction of

MHA.” (Dkt. # 1, at ¶15(J)). Plaintiff’s claim fails because she does not allege facts plausibly

suggesting that any similarly-situated individuals exist or that she meets the requirements for

representing the (hypothetical) putative class.

“[A] court may deny class certification even before the plaintiff files a motion requesting

certification”, Kasalo v. Harris & Harris, 656 F.3d 557, 563 (7th Cir.2011). Class certification

should be denied unless “the putative class satisfies all four requirements of Federal Rule of

Civil Procedure 23(a)—numerosity, commonality, typicality, and adequacy of representation—

and any one of the conditions of Rule 23(b). The plaintiff must also show that the class is indeed

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identifiable as a class.” Oshana v. Coca–Cola Co., 472 F.3d 506, 513 (7th Cir.2006) (internal

citations omitted). Plaintiff has not sufficiently pled that she meets any of these requirements, as

she has not alleged a single fact about any action Defendants have taken with respect to any

putative class members. Plaintiff has not even proposed any way for this Court to identify the

members of her vaguely-defined putative class. Instead, the complaint simply parrots the

language of Fed. R. Civ. Pro. 23, asserting in conclusory terms that it applies to this case.

The first problem with Plaintiff’s claim to represent a putative class is she has defined the

putative class in a way rendering it impossible to ascertain the members of the class: there is no

reliable mechanism for determining the “future” tenants of MHA, nor is there any reliable way

for determining which past or current tenants are “disabled” and require unspecified

“accommodations”

The second problem is that Plaintiff has not pleaded facts satisfying the four requirements

of Rule 23(a). With respect to the commonality requirement, Plaintiff parrots Rule 23(a)(2) by

stating that there are “questions of law or fact common to the class,” but she does not articulate

what those common questions are. (Dkt. # 1, at ¶¶ 15). Despite her conclusory statement,

Plaintiff cannot meet the commonality requirement because “[c]ommonality requires the plaintiff

to demonstrate that the class members ‘have suffered the same injury.’ This does not mean

merely that they have all suffered a violation of the same provision of law.” Wal-Mart Stores v.

Dukes, 564 U.S. 338, 131 S.Ct. 2451, 2551 (2011)(internal citation omitted). Rather, “claims

must depend upon a common contention” which “must be of such a nature that it is capable of

classwide resolution—which means that determination of its truth or falsity will resolve an issue

that is central to the validity of each one of the claims in one stroke.” Id.

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In order to establish the claims of the members of the purported class, plaintiff would

need to allege what handicap each purported class member has, what accommodations were

requested by each purported class member, whether each requested accommodation was denied,

and facts plausibly suggesting each accommodation was reasonable and necessary. (Dkt. # 1, at

¶ 15(J)). These are all issues that need to be addressed on an individualized basis and preclude

class certification because they do not meet the standard for commonality set by Dukes. Plaintiff

has not alleged that any other disabled MHA tenants received termination notices for failing to

maintain sanitary conditions, and therefore has not identified a class of individuals whose cases

raise a “common question” under the Dukes standard.

Plaintiff fails to meet the typicality requirement for essentially the same reasons: the need

for individualized inquiries simply to establish the claims of each class member – and the fact

that the specific conduct alleged will be different in each case, render it impossible for plaintiff to

establish that her claims are typical of the purported class. See, e.g., Elizabeth M. v. Montenez,

458 F.3d 779, 787 (8th Cir.2006). (“The presence of a common legal theory does not establish

typicality for class certification purposes when proof of a violation requires individualized

inquiry.”); Oshana, 472 F.3d at 514 (finding that plaintiff could not establish typicality because

her proposed class definition included individuals who could not state a claim.).

Plaintiff’s attempt to satisfy the numerosity requirement in her complaint fails because

she alleges that at least 40 qualified handicapped individuals reside at MHA, but she has not

alleged the number of those who have been denied accommodations and therefore qualify to be

members of the putative class as she herself has defined it.

Plaintiff’s complaint fares no better with respect to the 23(b) “conditions.” Plaintiff

parrots Rule 23(b)(3), stating that that “the questions of law or fact common to class members

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predominate,” but she does not articulate what those common questions are. (Dkt. # 1, at ¶¶

15(G)). Plaintiff parrots Rule 23(b)(2), stating that Defendants “have acted or refused to act, and

will act or refuse to act, on grounds that apply generally to a class of present, former and future

tenants,” but does not articulate what those grounds are or how they apply to other tenants. (Dkt.

# 1, at ¶ 14). To the contrary, she says the “allegation is evidenced” by actions specific to her.4

Plaintiff’s laundry list of reasons a class action is supposedly superior does not negate her

obligation to plead facts giving rise to a plausible inference she meets the numerosity, typicality,

commonality, adequacy, requirements of Fed. R. Civ. P. 23(a) and the predominance

requirement of Fed. R. Civ. P. 23(b)(3), nor her obligation to propose an identifiable class. She

has not pled any such facts or proposed such a class, and her class allegations should be stricken

accordingly.

Plaintiff’s putative class claims therefore do not satisfy the pleading standard set forth in

Twombly, Iqbal, and their progeny. “[P]laintiffs who merely parrot the statutory language of the

claims that they are pleading... have not provided the ‘showing’ required by Rule 8 (of the Fed.

R. Civ. P).” Brooks v. Ross, 578 F.3d at 581. Plaintiff here has not made such a showing with

respect to her claim to represent a putative class, and an order striking the conclusory allegations

related to that claim is proper under Fed. R. Civ. P. 23(d)(1)(D).

WHEREFORE, Defendants respectfully pray that this Honorable Court enter an order

dismissing the complaint in its entirety with prejudice.

4

Plaintiff also asserts the allegation is evidenced by “the absence of procedures to protect her rights”, but she has

not pled any facts indicating such an absence – nor could she, since the notice Plaintiff admits she received outlined

a number of procedures Plaintiff could have chosen to pursue. See Dkt. # 17-1 at p. 2.

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Dated: March 22, 2016 Respectfully submitted,

/s/ Steven P. Lammers

Steven P. Lammers, Atty. No. 26443-64

SmithAmundsen LLC

201 N. Illinois Street, Suite 1400

Indianapolis, Indiana 46204

Direct: (317) 464-4156

Fax: (317) 464-4157

slammers@salawus.com

Attorney for Defendants, Mishawaka Housing

Authority, an entity and Colleen Olund, Executive

Director of the Mishawaka Housing Authority

CERTIFICATE OF SERVICE

The undersigned certifies that on March 22, 2016, he electronically filed the foregoing

Defendants’ Memorandum in Support of Motion to Dismiss Pursuant to Fed. R. Civ. P.

12(b)(6), 12(b)(1), and 23(d)(1)(D) with the Clerk of the Court using the CM/ECF system which

sent notification of such filing to the following:

Kent Hull

Lowell.k.hull10@nd.edu

Allan L. McLaughlin

amclaughlin@littler.com

Mark J. Plantan

mplantan@littler.com

/s/ Steven P. Lammers

Steven P. Lammers

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