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UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF INDIANA 

HAMMOND DIVISION 

KENDRA MABRY, et al., ) 

 Plaintiffs, ) 

) 

 v. ) CAUSE NO.: 2:16-CV-402-JVB-JEM 

 ) 

CITY OF EAST CHICAGO, et al., ) 

 Defendants. ) 

AMENDED FINDINGS, REPORT AND RECOMMENDATION OF 

UNITED STATES MAGISTRATE JUDGE PURSUANT TO 

28 U.S.C. § 636(b)(1)(B) & (C) 

 This matter is before the Court on Defendants’ Motion to Dismiss [DE 129], filed by 

Defendants City of East Chicago, Anthony Copeland, East Chicago Housing Authority and Tia 

Cauley on May 26, 2021. Plaintiffs filed a response on June 28, 2021, and on July 19, 2021, 

Defendants filed a reply. On August 5, 2021, the Court held a hearing and granted Plaintiffs leave 

to file a surreply. Plaintiffs filed that surreply on August 13, 2021, and on August 26, 2021, 

Defendants filed a response to the surreply. 

 On May 27, 2021, District Court Judge Joseph Van Bokkelen entered an Order [DE 132] 

referring Defendants’ Motion to Dismiss to the undersigned Magistrate Judge for a report and 

recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). This Report constitutes the undersigned 

Magistrate Judge’s combined proposed findings and recommendations pursuant to 28 U.S.C. § 

636(b)(1)(C). 

 For the following reasons, the Court recommends that the District Court grant the motion 

to dismiss. 

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I. Background

 Plaintiffs, residents of the East Chicago Housing Authority (“ECHA”) affordable housing 

development known as the West Calumet Housing Complex (“Complex”) in East Chicago, 

Indiana, filed a Complaint on September 15, 2016. It included claims against Defendants for 

violations of the Fair Housing Act (“FHA”), the Fourteenth Amendment right to due process of 

law, the Fourteenth Amendment right to equal protection, and of Plaintiffs’ property rights under 

the Civil Rights Act (42 U.S.C. § 1982), all arising out of the eviction and closure of the Complex 

in the summer of 2016. Plaintiffs allege that Defendants knew or should have known that the 

Complex was contaminated with toxic substances, including arsenic and lead, but hid the extent 

of the contamination from the Complex’s residents. In June or July of 2016, tenants received a 

directive signed by East Chicago Mayor Anthony Copeland stating that the City of East Chicago 

and ECHA had recently been informed of the contamination and that the Complex residents 

needed to relocate quickly. They allege that Tia Cauley, the director of ECHA, was involved in 

the decision to issue the directive. 

 Defendants all filed motions to dismiss the original Complaint, and a number of claims 

were dismissed, with leave to file motions to amend in part. On March 24, 2021, Plaintiffs’ motion 

to amend was granted in part, and an Amended Complaint was filed on April 21, 2021. Defendants 

now move to dismiss several of the claims in the Amended Complaint. 

II. Standard of Review

 To survive a Rule12(b)(6) motion to dismiss for failure to state a claim, the complaint must 

first provide “a short and plain statement of the claim showing that the pleader is entitled to relief,” 

Fed. R. Civ. P. 8(a)(2), such that the defendant is given “fair notice of what the . . . claim is and 

the grounds upon which it rests.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) 

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(quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)); see also Ashcroft v. Iqbal, 556 U.S. 662, 677-

78 (2009). Second, the “complaint must contain sufficient factual matter, accepted as true, to ‘state 

a claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 

570); see also Tamayo v. Blagojevich, 526 F.3d 1074, 1082 (7th Cir. 2008). In ruling on a motion 

to dismiss, a court accepts as true all of the well-pleaded facts alleged by the plaintiff and all 

reasonable inferences that can be drawn therefrom. See Twombly, 550 U.S. at 555-56; Tamayo, 

526 F.3d at 1082. 

III. Analysis

 Defendants agree that Plaintiffs have adequately alleged a claim for disparate treatment 

under the Fair Housing Act and an equal protection claim under the 14th Amendment. They argue 

that the disparate impact claim under the FHA in Counts III and IV fails because it is based on an 

alleged one-time decision to close the Complex rather than on a broader policy, that the civil rights 

claim in Count V fails because the Complex was demolished and no housing remained available 

after it was denied to Plaintiffs, and that the due process claim in Count VII fails because a state 

court breach of contract claim provides sufficient process for their claim of alleged breach of lease. 

Defendants also argue that the related individual claims against Defendants Cauley and Copeland 

should also be dismissed. 

A. Disparate Impact 

 Defendants argue that Plaintiffs’ claim for disparate impact under the Fair Housing Act 

fails because it is based on a one-time decision to close the Complex rather than a broader policy. 

The Fair Housing Act makes it unlawful to refuse to rent to, to “otherwise make unavailable or 

deny,” and “[t]o discriminate against any person in the terms, conditions, or privileges of sale or 

rental of a dwelling, or in the provision of services or facilities in connection therewith because of 

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race, color, religion, sex, familial status, or national origin.” 42 U.S.C. § 3604(a), (b). “A violation 

of the FHA can be proven against a city or other locality by demonstrating that a city policy or 

practice either has a discriminatory intent or, under some circumstances, a discriminatory effect, 

or disparate impact” City of Joliet v. Mid-City Nat’l Bank of Chi., No. 05 CV 6746, 2014 WL 

4667254, at *22 (N.D. Ill. Sept. 17, 2014), aff’d sub nom. City of Joliet, Ill. v. New W., L.P., 825 

F.3d 827 (7th Cir. 2016). 

 In this case, Plaintiffs have sufficiently alleged that the closure of the Complex had a 

discriminatory effect. Defendants now argue that Plaintiffs’ disparate impact claim fails because 

they have not alleged a locality policy or policies caused the discriminatory effect, since the onetime decision to close the Complex is not a policy. In particular, Defendants argue that there is no 

zoning law or ordinance alleged to be responsible for the harm in this case, but that tenants were 

displaced from the Complex as a result of a single decision. Plaintiffs argue that the Complaint 

includes allegations of a scheme that includes building the Complex on contaminated land, failing 

to warn occupants of the contamination, and then evicting Plaintiffs to make the land more 

profitable. However, a multi-decade scheme involving a series of decisions by many different 

actors is not the sort of zoning law or housing restriction the FHA is intended to address. 

 “[A] disparate-impact claim that relies on a statistical disparity must fail if the plaintiff 

cannot point to a defendant’s policy or policies causing that disparity.” Texas Dep’t of Hous. & 

Cmty. Affs. v. Inclusive Communities Project, Inc., 576 U.S. 519, 542, 135 S. Ct. 2507, 2523, 192 

L. Ed. 2d 514 (2015). As the Supreme Court explained, “[t]he FHA . . . was enacted to eradicate 

discriminatory practices within a sector of our Nation’s economy. These unlawful practices include 

zoning laws and other housing restrictions that function unfairly to exclude minorities from certain 

neighborhoods without any sufficient justification.” Id. at 539. Accordingly, “[d]isparate-impact 

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analysis looks at the effects of policies, not one-off decisions.” City of Joliet, Ill. v. New W., L.P., 

825 F.3d 827, 830 (7th Cir. 2016) (finding no disparate impact because “condemnation of 

Evergreen Terrace is a specific decision, not part of a policy to close minority housing in Joliet”); 

see also Texas Dep’t of Hous., 576 U.S. at 543, 544 (“For instance, a plaintiff challenging the 

decision of a private developer to construct a new building in one location rather than another will 

not easily be able to show this is a policy causing a disparate impact because such a one-time 

decision may not be a policy at all” and “as to governmental entities, they must not be prevented 

from achieving legitimate objectives, such as ensuring compliance with health and safety codes.”). 

 Defendants argue that the decision to close the Complex was a one-time decision, not a 

policy of closing housing for members of protected classes. Plaintiffs have alleged that they were 

treated badly by a variety of different actors, apparently motivated by greed and either racial 

animus or lack of concern that their actions had a disproportionate negative impact on members of 

protected classes. However, the Amended Complaint does not point to a specific policy or policies 

causing the discriminatory effect. Cf. Cty. of Cook, Ill. v. Wells Fargo & Co., 314 F. Supp. 3d 975, 

992 (N.D. Ill. 2018) (finding claim for disparate impact sufficiently alleged where “[f]irst . . . the 

County identifies a set of related statistical disparities . . and [s]econd, . . . the County identifies a 

policy—Wells Fargo’s equity-stripping practice—to which it attributes the alleged statistical 

disparity”). Furthermore, to the extent that Plaintiffs are arguing that there was a policy of allowing 

them to live on contaminated land, that is not a claim for deprivation of housing. Plaintiffs have 

only identified individual decisions, not a policy or policies to which they attribute the statistical 

disparity, and have therefore failed to state a claim for disparate impact under the FHA. 

Accordingly, the Court recommends that the claims for disparate impact under the Fair Housing 

Act in Counts III and IV be dismissed. 

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B. Section 1982 

 Defendants argue that Plaintiffs fail to state a claim for housing discrimination under the 

Civil Rights Act because the Complex was closed, making it unavailable to anyone for housing. 

The Civil Rights Act provides, “All 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.” 42 U.S.C. § 1982. “To state a claim under § 1982, 

plaintiffs must allege that the defendant[s] had a racial animus, intended to discriminate against 

the plaintiff[s], and deprived the plaintiff[s] of protected rights because of the plaintiff[s’] race.” 

Whisby-Myers v. Keikenapp, 293 F. Supp. 2d 845, 850 (N.D. Ill. 2003) (citations omitted). 

 Defendants argue that the Section 1982 claim consists of bare conclusions that do not meet 

the pleading requirements, and that read in the context of the Amended Complaint, the claim fails 

because housing or rental opportunities must remain available and offered to others in order for 

there to be a Section 1982 violation. See Phillips v. Hunter Trails Cmty. Ass’n, 685 F.2d 184, 190 

(7th Cir. 1982) (“To make out their prima facie case under the Fair Housing Act, they had only to 

show that they were black, that they applied for and were qualified to buy the Broderick house, 

that they were rejected, and that the Broderick house remained on the market.”) Plaintiffs argue 

that there was a period of time during which housing in the Complex remained available to others 

after Plaintiffs were evicted and before the Complex was demolished. However, the Amended 

Complaint specifically alleges that the Civil Rights Act was violated because “[Defendants] did 

not invite White citizens to lease and enjoy defective, substandard and dangerous housing and then 

evict them under pretext.” ¶ 135. Because the housing was not available to anyone after all of the 

tenants were evicted, Plaintiffs have not stated a claim for violation of the Civil Rights Act, and 

the Court recommends that Count V be dismissed. 

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C. Due Process 

 Defendants argue that Plaintiffs’ due process claim is based on an alleged breach of lease, 

and that because there is a state law cause of action they have not suffered any lack of sufficient 

process. Plaintiffs allege in Count VII that they were ordered to leave their homes without due 

process, depriving them of property rights without notice and the opportunity to be heard. 

Defendants do not dispute that Plaintiffs had a property interest in the Complex because of their 

leases, but argue that Plaintiffs can obtain the process they are due through a state law action. 

Plaintiffs argue that a judgment of eviction was required but was not obtained and that Plaintiffs 

have therefore not had the opportunity to be heard. District Court Judge James Moody addressed 

a similar due process claim in another case involving the Complex closure and concluded: “Any 

process to which [the displaced tenants] were due is adequately served by a state-law breach of 

contract claim.” Walker v. E I Du Pont De Nemours & Co., No. 2:16 CV 367, 2018 WL 6198447, 

at *4 (N.D. Ind. Nov. 27, 2018) (citing Lafayette Linear v. Vill. of Univ. Park, Ill., 887 F.3d 842, 

844 (7th Cir. 2018); Kay v. Bd. of Educ. of City of Chi., 547 F.3d 736, 739 (7th Cir. 2008); Ind 

Land Co. v. City of Greenwood, 378 F.3d 705, 710 (7th Cir. 2004)). 

 Indeed, “for someone who relies on a property interest created by a contract with a public 

body, the process due when the government arguably has broken its promise is the opportunity to 

seek damages from a state court.” Lafayette Linear, 887 F.3d at 844; see also Taake v. Cty. of 

Monroe, 530 F.3d 538, 542-43 (7th Cir. 2008) (“When a state actor breaches a contract it has with 

a private citizen, and the subject matter of that contract does not implicate fundamental liberty or 

property interests, the state acts just like any other contracting private citizen, the proper tribunal 

to adjudicate issues arising from the contract (or alleged contract) is a state court, because contract 

law is a creature of state law . . . As for procedural due process, the Fourteenth Amendment's Due 

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Process Clause affords state citizens with the right to notice and an opportunity to be heard before 

being deprived of ‘property’ as defined by state law. Taake used the words ‘procedural due 

process’ in his complaint, but the remedies he seeks belie any suggestion that Taake is interested 

in notice and a hearing on the County’s decision not to sell him the land . . . Taake wanted the 

land—not a hearing at which the County would give Taake an opportunity to contest the County's 

decision not to sell him the land.”); Khan v. Bland, 630 F.3d 519, 531–32 (7th Cir. 2010) (“Where 

a postdeprivation hearing not only is feasible but will give the deprived individual a completely 

adequate remedy due process does not necessarily require a predeprivation hearing.”) (internal 

quotation marks omitted) (quoting Chi. United Indus., Ltd. v. City of Chi., 445 F.3d 940, 944 (7th 

Cir.2006)) (citing Ellis v. Sheahan, 412 F.3d 754, 758 (7th Cir.2005); Indiana Land Co. v. City of 

Greenwood, 378 F.3d 705, 710 (7th Cir.2004)); Goros v. Cty. of Cook, 489 F.3d 857, 860 (7th Cir. 

2007) (§ 1983 may not be used to determine whether some statute or contract creates a property 

interest in the abstract; unless the plaintiff maintains that the state actor had to offer a hearing to 

resolve some contested issue of fact, the dispute belongs in state court under state law.”). In short, 

like the plaintiffs in Taake and Walker, in this case “plaintiffs do not want process . . . They do not 

allege that they were entitled to a hearing to resolve a contested issue of fact” prior to the Complex 

being closed for environmental contamination. Walker, 2018 WL 6198447, at *4. The Court 

recommends that Count VII, Plaintiffs’ due process claim, be dismissed, because process is still 

available to Plaintiffs through a state court action. 

D. Individual Defendants 

 Defendants also request that the claims for Anthony Copeland’s and Tia Cauley’s personal 

liability be dismissed insofar as they are based on the claims described above. Because Plaintiffs’ 

claims for disparate impact under the Fair Housing Act, for violation of Section 1982, and for 

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violation of due process fail for the reasons described above, the Court recommends that the claims 

for personal liability against the individual defendants based on those claims also be dismissed. 

IV. Conclusion

 For the foregoing reasons, the Court hereby RECOMMENDS that the District Court 

GRANT Defendants’ Motion to Dismiss [DE 129] and dismiss Counts III, IV, V, and VII and 

dismiss counts VIIi and IX insofar as they assert claims for the personal liability of Anthony 

Copeland and Tia Cauley for the Fair Housing Act disparate impact claims, the claim for violation 

of Section 1982, and the claim for violation of due process. 

 This Report and Recommendation is submitted pursuant to 28 U.S.C. § 636(b)(1)(C). 

Pursuant to 28 U.S.C. § 636(b)(1), the parties shall have fourteen (14) days after being served with 

a copy of this Recommendation to file written objections thereto with the Clerk of Court. The 

failure to file a timely objection will result in waiver of the right to challenge this Recommendation 

before either the District Court or the Court of Appeals. Willis v. Caterpillar, Inc., 199 F.3d 902, 

904 (7th Cir. 1999); Hunger v. Leininger, 15 F.3d 664, 668 (7th Cir. 1994); The Provident Bank 

v. Manor Steel Corp., 882 F.2d 258, 260-261 (7th Cir. 1989); Lebovitz v. Miller, 856 F.2d 902, 

905 n.2 (7th Cir. 1988). 

 SO ORDERED this 20th day of October, 2021. 

 s/ John E. Martin_____________________ 

 MAGISTRATE JUDGE JOHN E. MARTIN 

 UNITED STATES DISTRICT COURT 

cc: All counsel of record 

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