UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

CYNTHIA M. HERNDON )

)

Plaintiffs, )

)

v. ) No. 3:15 CV 169

) 

HOUSING AUTHORITY OF SOUTH BEND, ) 

and JOANNE WATFORD, )

)

Defendants. )

OPINION AND ORDER

Cynthia Herndon, who is pro se, has filed a complaint against defendants Joanne

Watford and the Housing Authority of South Bend, Indiana (“HASB”). (DE # 1.)

Herndon is a public housing tenant who lived in property owned and operated by

HASB. She alleges that she suffered housing discrimination based upon her race,

disability, veteran status, and familial status as an “aggrieved mother with custody

issues.” (Id. at 2-3.) She further alleges retaliation against her for having filed a race

discrimination complaint with the South Bend Human Rights Commission. (Id. at 2.)

Lastly, she alleges that HASB’s 30-day notice of lease termination was unlawful in that

she was entitled to a 90-day notice period. (DE # 1-1 at 6.)

Herndon brings these claims pursuant to 42 U.S.C. § 1983 asserting 

discrimination and retaliation in violation of the Equal Protection Clause of the United

States Constitution; the Fair Housing Act, 42 U.S.C. § 3601, et seq. (“FHA”); the

Americans with Disabilities Act 42 U.S.C. § 12101, et seq. (“ADA”); the United States
2

Housing Act 42 U.S.C. § 1437, et seq. (“USHA”); and Executive Orders 11063, 12892 and 13217.

HASB and Watford have moved to dismiss the claims according to Fed. R. Civ.

P. 12(b)(1) for lack of subject-matter jurisdiction and Fed. R. Civ. P. 12(b)(6) for failure to

state a claim. (DE # 16.) For the reasons set forth below, the motion is granted.

I. BACKGROUND

This case appears to have been set in motion by a contentious encounter that

took place on December 30, 2014.1 (DE # 1-1 at 5.) Herndon alleges that, on that date,

her property manager, Joanne Watford, committed “malicious racial intimidations” and

“coercion on matters of child custody.” (Id.) Shortly after this incident, Herndon filed a

race discrimination complaint with the South Bend Human Rights Commission

(“HRC”) on January 6, 2015. (Id. at 11.) In the HRC complaint, she alleged that the

property manager, defendant Watford, threatened and harassed her because of her race.

(Id. at 13.) Specifically she alleged that the source of the racial animus stemmed from the

fact that Herndon is white and her male partner is African-American. (Id.) Watford is

also African-American (Id. at 5.) Race is the only basis of discrimination that is included

in the HRC complaint. (Id. at 13.)

Herndon alleges that on that same day, HASB conducted a “racially motivated”

inspection of her unit which nonetheless resulted in a “good evaluation.” (Id. at 5.) This

was allegedly followed by another inspection on January 28, 2015, for which “no

1

Herndon’s complaint lists the date of this event as “12-30-15" but this appears to

be a typographical error.
3

evaluation was provided until now.” (Id.) Around this time she also alleges “intentional

failure to provide repair services” after she filed the Commission complaint “despite

some repairs done soon after.” (Id.)

HASB wrote to Herndon on February 9, 2015, and offered an apology to the

extent that Herndon was offended during her interaction with Watford in December of

2014. (Id. at 21.) HASB’s letter indicated that the purpose of Watford’s questioning was

to ascertain whether Herndon’s son still resided in the household and that such

information was needed in order to determine whether Herndon should be placed in a

one-bedroom or two-bedroom unit. (Id.) On February 18th, 2015, the Commission

issued a finding of no probable cause as to Herndon’s race discrimination complaint.

(Id. at 25-26.)

In March, HASB initiated the lease recertification process, which Herndon alleges

was done “in pretext of race” and “to retaliate on grounds of child custody issues.”

(Id. at 4.) A recertification appointment was scheduled for March 18, 2015. (Id. at 24.)

Herndon requested to reschedule because it conflicted with a custody hearing for her

son on the same day. (Id. at 24.) Defendants agreed to reschedule the appointment to

March 24, 2015. (Id. at 27.) However, it appears that Herndon did not attend the

appointment. The next day, March 25, 2015 HASB issued a 30-day notice to terminate

her lease effective April 25, 2015. (Id. at 5; DE # 17-1.)2 The notice cited her failure to

2 In her complaint, Herndon states “a notice of lease was issued on 3-25-15 ex#4.”

(DE # 1-1 at 5.) However, the exhibit she cites to is not the 30-day notice of lease

termination but is her own letter requesting to reschedule the recertification meeting on
4

complete the appointment and provide the required documentation. (DE # 17-1.) In

early April Herndon received notice of yet another inspection of her unit scheduled for

May 4, 2015. (DE # 1-1 at 5.) Before that happened, and before her lease was effectively

terminated, she filed this suit against HASB and Watford on April 17, 2015.

II. DISCUSSION

Herndon has filed her complaint pro se. “A document filed pro se is to be liberally

construed, and a pro se complaint, however inartfully pleaded, must be held to less

stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551

U.S. 89, 94 (2007) (quotation marks and citations omitted). For this reason, the court will

construe Herndon’s filings liberally in deciding the present motion.

A. Subject-Matter Jurisdiction

Defendants have moved to dismiss the case for lack of subject-matter jurisdiction

pursuant to Fed. R. Civ. P. 12(b)(1). Rule 12(b)(1) provides a defendant with a

procedural vehicle by which the defendant may move a federal court to dismiss a claim

or suit on the ground that the court lacks subject-matter jurisdiction. A Rule 12(b)(1)

motion can present either a facial or factual challenge to subject-matter jurisdiction.

March 18, 2015 (Id. at 24.) Defendants have attached the 30-day notice as an exhibit to

their motion to dismiss. (DE # 17-1.) It appears that Herndon intended to attach this 30-

day notice to her complaint. Moreover, she specifically mentions it in her complaint and

it is central to her claims. Therefore, defendant’s exhibit is properly considered part of

the pleadings pursuant to Fed. R. Civ. P. 10(c). Venture Assocs. 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.”).
5

Villasenor v. Indus. Wire & Cable, Inc., 929 F. Supp 310, 312 (7th Cir. 1996). A facial attack

is a challenge to the sufficiency of the pleading itself. Id. By contrast, a factual attack is

not a challenge to the sufficiency of the complaint, but is a challenge to the factual

existence of subject matter jurisdiction. Id. In either case the “burden of proof on a

12(b)(1) issue is on the party asserting jurisdiction.” United Phosphorous, Ltd. v. Angus

Chem. Co., 322 F.3d 942, 946 (7th Cir. 2003) (en banc) (overruled on other grounds by

Minn-Chem, Inc. v. Agrum, Inc., 683 F.3d 845 (7th Cir. 2012) (en banc)).

Though defendants never explicitly identify it as such, theirs is a facial challenge

to subject-matter jurisdiction. The standard for evaluating a facial challenge to subjectmatter jurisdiction is “the same standard used to evaluate facial challenges to claims

under Rule 12(b)(6).” Silha v. ACT, Inc., 807 F.3d 169, 174 (7th Cir. 2015). The wellpleaded factual allegations must plausibly give rise to an entitlement of relief. Id. (citing

Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009)). Pro se complaints, however inartfully pleaded,

“must be construed liberally and held to less stringent standards than those applied to

complaints drafted by attorneys.” Swofford v. Mandrell, 969 F.2d 547, 549 (7th Cir. 1992)

(citing Haines v. Kerner, 404 U.S. 519, 521 (1972)). Furthermore “factual allegations

contained in other court filings of a pro se plaintiff may be considered when evaluating

the sufficiency of a complaint so long as they are consistent with the allegations of the

complaint.” Snyder v. Nolen, 380 F.3d 279, 300 (7th Cir. 2004) (citing Gutierrez v. Peters,

111 F.3d 1364, 1367 n.2 (7th Cir. 1997)); Swofford v. Mandrell, 969 F.2d 547, 549 (7th Cir.

1992).
6

Defendants assert that Herndon’s complaint fails to allege that she was evicted or

otherwise injured by defendants’s conduct. (DE # 17 at 10-11.) According to defendants,

Herndon had not yet “been evicted or harmed in any way,” (Id. at 5), and therefore her

claims are unripe and she lacks standing to sue.

However, defendants acknowledge in their motion that, shortly after this suit

was filed, HASB “did file an immediate possession action against [p]laintiff in the St.

Joseph Superior Court.” (Id. at n. 5.) And, not only did they commence the eviction, but

the Superior Court awarded HASB possession of the unit on June 22, 2015.3 (Id.) In

Herndon’s other filings, she expressly alleges that she was evicted.4 Bearing in mind the

less-stringent standard to which pro se complaints are held, Herndon has plausibly

alleged an injury-in-fact, and thus, has standing to sue.

Furthermore, to the extent that her claims were not ripe on the day that she filed

them, they are undoubtedly ripe at the present time. See Blanchette v. Conn. Gen. Ins.

Corp., 419 U.S. 102, 139-40 (1974) (“[S]ince ripeness is peculiarly a question of timing, it

is the situation now rather than the situation at the time of the District Court’s decision

that must govern.”); Public Water Supply Dist. No. 8 of Clay Cty., Mo. v. City of Kearny,

Mo., 401 F.3d 930, 932 (8th Cir. 2005) (“Whether a case is ripe depends on the state of the

3

After HASB was awarded possession of the unit, Herndon sought to remove the

case to the United States District Court. see, The Housing Authority of South Bend v.

Cynthia Herndon, Case No. 3:15-CV-256-JTM-JEM. The action was ultimately remanded

to the St. Joseph Superior Court. (Id. at DE # 21.)

4 see, DE # 31 at 2 (“Plaintiff was evicted by South Bend Housing Authority after

filing this cause of action solely because of retaliatory Maliciousness [sic] . . . “)
7

case at the time of review, not at the time of filing.”); In re Dairy Farmers of America, Inc.,

80 F. Supp. 3d 838, 852 (N.D. Ill. 2015). At this point in time there is nothing

hypothetical or abstract about this dispute. Defendants’s standing and ripeness

arguments fail and the Rule 12(b)(1) motion is denied.

B. Failure to State a Claim

Defendants have also moved to dismiss for failure to state a claim pursuant to

Fed. R. Civ. P. 12(b)(6). In deciding a Rule 12(b)(6) motion, the court must accept all

facts alleged in the complaint as true and draw all reasonable inferences in the light

most favorable to the plaintiff. Johnson v. Rivera, 272 F.3d 519, 520 (7th Cir. 2001). A

"well-pleaded allegation" must provide a "short and plain statement of the claim"

showing that the plaintiff merits relief. Fed. R. Civ. Proc. 8(a). The statement must

give"the defendant fair notice of what the . . . claim is and the grounds upon which it

rests." Bell Atlantic Corp. v. Twombly , 127 S.Ct. 1955, 1964 (2007) (internal quotation

marks omitted). To survive a motion to dismiss under Rule 12(b)(6), a complaint must

contain sufficient factual matter, accepted as true, to state a claim to relief that is

plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S.

544). Thus, even accepting all allegations as true, the court need not accept threadbare

legal conclusions supported by mere conclusory statements. Id.

I. Discrimination Claims

The main thrust of Herndon’s complaint is that she has suffered discrimination

on the basis her race, disability, veteran status, and family status as an “aggrieved
8

mother with custody issues.” (DE # 1 at 2-3.) Sections 3603-3606 of the FHA protect

against discrimination in housing on the basis of race, color, religion, sex, handicap,

familial status or national origin. 42 U.S.C. § 3603-3606. Section 3617 also makes it

“unlawful to coerce, intimidate, threaten, or interfere with any person in the exercise or

enjoyment of, or on account of his having exercised or enjoyed, or on account of his

having aided or encouraged any other person in the exercise or enjoyment of, any right

granted or protected by section 3603, 3604, 3605, or 3606 of this title.” 42 U.S.C. § 3617.

A plaintiff can prove that discrimination occurred by showing that the

defendants acted with discriminatory intent or that the action caused a discriminatory

effect. Bloch v. Frischoltz, 587 F.3d 771, 784 (7th Cir 2009); E. Miller v. Lake Cty. Highway

Dep’t, 421 F.3d 558, 563 (7th Cir. 2005) (“We hold that a showing of discriminatory 

intent is an essential element of a § 3617 claim.”); Metro. Hous. Dev. Corp. v. Vil. of

Arlington Heights, 558 F.2d 1283, 1290 (7th Cir. 1977) (“at least under some

circumstances a violation of section 3604(a) can be established by a showing of

discriminatory effect without a showing of discriminatory intent.”). However, the

application of the Arlington Heights “disparate impact” analysis is not appropriate in all

contexts, Knapp v. Eagle Prop. Mgmt. Corp., 54 F. 3d 1272, 1280 (7th Cir. 1995), and

Herndon has not advanced a theory based on discriminatory effect. Thus, the court

must consider whether Herndon has sufficiently alleged that defendants acted with

discriminatory intent.
9

Herndon’s filings are rich with conclusory allegations of defendants’s

discriminatory actions.5 However she fails to plead any facts that lead the court to

conclude that defendants intentionally discriminated on the basis any protected

characteristic. The entirety of her allegation of racial discrimination is that she is white,

her partner is black and defendant Watford is black. Beyond this, she offers no factual

basis to suggest racial animus. Likewise as to her family status, she states that she is an

aggrieved single mother of two and alludes to custody issues, but otherwise offers no

facts to suggest that this was a source of discriminatory animus. cf. White v. U.S. Dep’t of

Hous. & Dev., 475 F.3d 898, 907 (7th Cir. 2007) (Landlord’s statements indicated a 

preference based upon family status and supported a claim of discrimination). She

asserts that she is disabled and a veteran, but offers nothing else.

Herndon identifies a number of characteristics that are protected under the FHA

and establishes that she faced eviction. But crucially, she fails to allege any causal link

between the two in the form of defendants’s discriminatory motive. None of her

allegations plausibly support the claim that defendants acted with discriminatory intent

on any of these characteristics. As such, she has failed to allege discrimination under the

FHA.

To the extent that she brings her discrimination claims under the equal

protection clause of the 14th amendment, they are still hampered by the same defect. To

5 see DE # 1-1 at 3 (“defendant SBHA has [p]articipated in in [sic] intentional and

malicious practices of racial discrimination pursuant to 1983 civil Act under title 42.”)
10

state a claim under the equal protection clause, a plaintiff must allege that the defendant

was “motivated by discriminatory purpose.” Chavez v. Ill. State Police, 251 F.3d 612,645

(7th Cir. 2001). For the very same reasons discussed above, her discrimination claims

fail under the 14th amendment.

Whether directly or indirectly, Herndon’s ADA claims also require allegations of

intentional discrimination. Bekker v. Humana Health Plan, Inc., 229 F.3d 662, 670 (7th Cir. 

2000).6 Here again she fails to sufficiently allege intentional discrimination.

Additionally, her claims fail at the threshold because she has not alleged that she suffers

from any disability.

Whether under the ADA or the FHA, Herndon must include allegations that she

is “disabled” under the meaning of the statute. A.B. ex rel. Kehoe v. Hous. Auth. of South

Bend, No. 3:11-CV-163, 2012 WL 1877740 at *11 (N.D. Ind. May 18, 2012). An individual 

is disabled under the ADA and FHA when she: (1) has a mental or physical impairment

that substantially limits a major life activity; (2) has a record of such impairment; or (3)

is regarded as having such an impairment. See 42 U.S.C. § 3602(h); 42 U.S.C.

§ 12102(3)(A). Taking all of the allegations as true and drawing all reasonable inferences

in Herndon’s favor, there is no indication that she suffers from a disability within the

6 According to the Seventh Circuit, there are two methods for establishing

discrimination based on disability. Id. “First the employee may present direct or

circumstantial evidence that the employment decision was motivated by the employer’s

discriminatory animus. Second, the employee may use the burdern-shifting method . . .

to prove by indirect evidence that her employer intentionally discriminated against

her” Id.
11

meaning of these statutes. see, Putignano v. Senior Lifestyle Corp., 116 F.3d 1482 (7th Cir.

1997) (affirming dismissal of ADA claim where pro se plaintiff failed to allege

disability). Even if Herndon had sufficiently alleged a disability, she still has not made a

plausible claim of any intentional discrimination on this basis. For these reasons, her

claims under the ADA also fail.

II. FHA Retaliation

Herndon also raises a claim of retaliation under Section 3617 of the FHA. Her

claim is that defendants initiated the lease recertification process in order to retaliate

against her for filing a discrimination complaint with the HRC. This in turn, led to her

eviction after she failed to complete the process. She also alleges retaliation in the form

of two unit inspections that were conducted in the weeks after her complaint and

delayed repairs of her unit.

In order to prevail on a Section 3617 claim, Herndon must allege that: “(1) she is

a protected individual under the FHA, (2) she engaged in the exercise or enjoyment of

her fair housing rights, (3) the defendants coerced, threatened, intimidated, or

interfered with the plaintiff on account of her protected activity under the FHA, and (4)

the defendants were motivated by an intent to discriminate.” Bloch, 587 F.3d at 783. Put

another way, Herndon can establish a prima facie case of FHA retaliation by showing

that (1) she engaged in a protected activity; (2) defendants subjected her to an adverse

action; and (3) a causal link exists between the protected activity and the adverse action.

Fincher v. South Bend Housing Authority, 612 F. Supp. 2d 1009, 1024 (N. D. Ind. 2009)
12

(citing Neudecker v. Boisclair Corp., 351 F.3d 361, 363-64 (8th Cir. 2003); Walker v. City of

Lakewood, 272 F.3d 1114, 1128 (9th Cir. 2001)).

Herndon’s race discrimination complaint with the HRC is protected activity

under the FHA. However, it is with the latter two elements that Herndon’s claims fall

short. In her favor, the sequence of events lines up such that her complaint precedes the

recertification process and her eventual eviction within a span of three to four months.

Under ordinary circumstances, suspicious timing alone rarely presents a triable issue on

causation. Carlson v. CSX Transp., Inc. , 758 F.3d 819, 828 (7th Cir. 2014)(citing Cung Hnin

v. TOA (USA), LLC, 751 F.3d499, 508 (7th Cir. 2014). However, under federal pleading

standards, such allegations can be sufficient to “nudge a complaint from possible to

plausible.” Cole v. Bd. of Trs. of N. Illinois Univ., 38 F.Supp. 925, 932 (N.D. Ill. 2014). The

problem for Herndon’s claims is that any causal link between her complaint with the

Commission and her eviction is attenuated by her failure to complete the recertification

process.

Annual recertification is required of all public housing tenants. 24 CFR §§ 

966.4(c), 960.257. And failure to recertify is a lease violation that can result in

termination of tenancy. 24 CFR §§ 966.4(c)(2), 966.4(l)(2)(I). Conclusory language aside,

Herndon does not allege that the recertification process was initiated prematurely or

was otherwise deployed in a punitive or prejudicial fashion. She provides no detail to

suggest that the recertification process, three months after HRC complaint, was

anything other than routine. For instance, when Herndon asked to reschedule her
13

appointment, HASB accommodated her request, and it was she who failed to complete

the process.

Even assuming that recertification was initiated in direct response to the

complaint, it is still unclear how that constitutes an adverse action. Unfortunately, that

will remain unclear, as Herndon did not “submit to the required process and receive an

adverse result.” Echemendia v. Gene B. Glick Mgmt. Corp., No. 1:05-CV-53, 2005 WL

3359108 *1 (N.D. Ind. Dec. 9, 2005) (“Echemendia I”). Given her failure to recertify, it is

hardly suspicious that she would then receive a 30-day lease termination notice. See 24

CFR § 966.4(l)(2)(I); Echemendia v. Gene B. Glick Mgmt. Corp., No. 1:05-CV-53, 2007 WL

869196 *11 (N.D. Ind. March 20, 2007) (“Echemendia II”) (Eviction was a “predictable

consequence” of failing to pay rent after refusing to complete recertification).

Likewise, the fact that her unit was inspected a total of two times after she filed a

complaint does not support a claim for retaliation. Much like the annual recertification

process, unit inspections are provided for by law. Id.; 2 CFR 966.4(I)-(j). One of the

inspections resulted in a favorable evaluation while the other allegedly resulted in no

evaluation at all. Likewise, her allegation regarding the failure to make repairs to her

unit is both vague and contradictory. To begin with she does not provide any factual

details regarding the nature of the repairs while in the same breath concedes that some

repairs were completed shortly after she made the HRC complaint. Without more, these

allegations do not amount to a pattern of “invidiously motivated” harassment that

interfered with her use and enjoyment of her dwelling. Bloch, 587 F.3d at 783. As such,
14

Herndon has failed to make plausible allegations that defendants took adverse actions

against her as a result of her complaint with the HRC. Therefore she fails to state a claim

for retaliation under the FHA.

III. Executive Orders 11063, 12892 and 13217

Herndon also claims that defendants violated executive orders 11063, 12892 and

13217. As a general matter, “there is no private right of action to enforce obligations

imposed on executive branch officials by executive orders.” Echemendia II, 2007 WL

869196 at * 14, aff’d, 263 F. Appx. 479 (7th Cir. 2008) (quoting Facchiano Constr. Co. v.

U.S. Dept. of Labor, 987 F.2d 206, 210 (3rd Cir. 1993)). “Only when executive orders have

specific foundation in Congressional action are they judicially enforceable in private

civil suits.” Id. (quoting Zhang v. Slattery, 55 F.3d 732, 847-48 (2nd Cir. 1995)). Executive

orders 11063, 12892 and 13217 do not create a private right of action to bring suit. Id. at

* 15; Thomas v. Butzen, No. 04-C-5555, 2005 WL 2387676 at * 11 (N.D. Ill. Sept. 26, 2005)

(Executive Orders 12892 and 11063); Hecht v. Banhart, 217 F.supp.2d 356, 360 (E.D.N.Y.

2002) (Executive Order 13217). Therefore these claims are also dismissed.

IV. USHA Claim

Lastly, Herndon asserts that defendants violated the USHA by issuing a 30-day

notice of lease termination. She asserts that the law requires a 90-day notice period. That

is incorrect. Under the USHA, public housing agencies are required to give not less than

30-days written notice of lease termination. 42 U.S.C. 1437d(1)(4)(C). Defendants

complied with this requirement. Therefore this claim also fails.
15

IV. MISCELLANEOUS MATTERS

Herndon has filed a second Motion for Leave to Proceed in forma pauperis. (DE

# 24.) The court has already granted such leave. (DE # 3.) Therefore the motion is

denied as moot.

Herndon has also filed a motion to reconsider (DE # 39) Magistrate Judge

Christopher A. Neuchterlein’s order from March 16, 2016 (DE # 38). That order denied

Herndon’s request for an extension of the deadline to file an amended complaint.

(DE # 36.) The motion was denied as moot because “no such deadline exist[ed] in this

case.” (DE # 38.) Rather it appears that Herndon inadvertently filed the motion in this

case and she actually intended to file it in another case, specifically Herndon v. Indiana

Dep’t of Child Servs., Case No. 3:15-cv-96-JTM-JEM. Herndon’s motion to reconsider

confirms that the initial motion was filed in the wrong case. (DE # 39). If she seeks such

an extension in that case, her motion ought to be refiled in that case. There is no

deadline to extend in this case and plaintiff presents no other basis to reconsider the

Magistrate Judge’s order. Therefore the motion to reconsider (DE # 39) is denied.

V. CONCLUSION

For the foregoing reasons, the second motion for leave to proceed in forma

pauperis (DE # 24) is DENIED AS MOOT. The motion to reconsider (DE # 39) is 

DENIED. Defendants’s motion to dismiss (DE # 16) is GRANTED. The clerk is

DIRECTED TO ENTER FINAL JUDGMENT stating:

Judgment is entered in favor of defendants Housing

Authority of South Bend and Joanne Watford, and against
16

plaintiff Cynthia Herndon, who shall take nothing by way of

her complaint.

SO ORDERED.

Date: May 20, 2016

s/ James T. Moody 

JUDGE JAMES T. MOODY

UNITED STATES DISTRICT COURT