plaintiffs’ residency at its facility. In response, Bonaventure argues that application of the
Detainer Act is confined to cases involving landlord-tenant relationships, and that actions under
the Act are limited to resolving the issue of entitlement to possession under a lease agreement.
Because plaintiffs do not stand in relation to Bonaventure as tenants, it argues, and because
plaintiffs’ residency at Bonaventure House is not governed by a lease, the Act does not apply.

We first address the question whether Bonaventure maintains a landlord-tenant
relationship with the residential participants in its program. Bonaventure observes correctly that
a landlord-tenant relationship arises from a lease agreement. Midland Management Co. v.
Helgason, 158 Ill, 2d 98, 105, 630 N.E.2d 836, 840 (1994). For purposes of the Detainer Act, a
lease can arise from an oral agreement as well as written contract. 735 ILCS 5/9-214. To
establish the relationship, however, possession and control of the “leased” premises must pass
from landlord to tenant. Midland Management, 158 lll. 2d at 105, 630 N.E.2d at 840. Plaintiffs
maintain that as residents of Bonaventure House, they enjoyed possession and control of their
rooms to the exclusion of others. They contend that their occupancy agreements with
Bonaventure were leases and that their monthly contributions to Bonaventure House should be
construed as rent.

The Court disagrees. As Bonaventure points out, its Resident Handbook states clearly
that “Bonaventure House offers community living and should not be misconstrued as apartment-
style living.” Handbook, § 6.14. It also states that residents should not construe their
relationship with Bonaventure as “akin to that of a landlord/tenant relationship.” This disclaimer
does not settle the issue, but it raiscs an important distinction bctween Bonaventure House and a

typical apartment complex. Bonaventure House is an assisted living facility. Residents are

19



may be impracticable to provide the formal hearing contemplated by HOPWA’s implementing
regulations until after the resident has been removed from the premises. For this reason, we
cannot say that Bonaventure’s involuntary discharge policy, which allows for immediate
discharge in emergency situations, facially conflicts with HOPWA’s due process guarantees.
Absent exigent circumstances, however, we are not convinced that it is either impracticable or
unduly burdensome to require HOPWA program administrators to provide its residents with a
formal hearing under § 574.310(€)(2)Gi)(B) before terminating their assistance.

Written notification is a separate matter. The HOPWA regulations unambiguously
require service of a written notice with a “clear statement” of the reasons for termination. The
regulations do nol, however, specifically stale when this notice must be given. Bonaventure
argues that HOPWA’s silence entitles it to cxercise discretion over when it must provide written
notice. The Court disagrees. As we have discussed, the regulations incorporate general
principles of due process. Meaningful due process typically requires pre-deprivation procedures,
particularly where a recipient of public benefits stands to suffer serious consequences as a result
of losing his assistance. Bonaventure has not argued that it would be difficult or impractical to
provide departing residents with the written notification required by § 574.310(e)(2)(i)(A), and
the Court can conceive of no emergency (nor has Bonaventure identified any) that would prevent
it from doing so. Unlike the hearing requirement, which contemplates a formal process allowing
the participant to confront opposing witnesses and present written objections, providing written
notification of the reasons for termination entails minimal preparation and no significant delay.
HOPWA grantees are simply required to provide departing residents with “a clear statement of

reasons for termination.” 24 C.F.R. § 574.310(e)(2)(i)(A). Even in cases where a resident

13



the Illinois Supportive Residence Act. The CRLTO therefore does not apply to plaintiffs’
terminations from Bonaventure’s program,
Cc Intentional Infliction of Emotional Distress

Plaintiffs also allege that Bonaventure’s actions in terminating their residencies
constituted intentional infliction of emotional distress (ILED). In order to prove its claims,
plaintiffs must show that Bonaventure’s conduct was truly extreme and outrageous, it knew that
there was a high probability that its conduct would cause severe emotional distress, and iis
actions in terminating plaintiffs’ residencies actually caused severe emotional distress. McGrath
v, Fahey, 126 Ill. 2d 78, 86, 533 N.E.2d 806, 809 (1988). A defendant’s alleged conduct must be
shown to be “so outrageous in character, and so extreme in degree, as to go beyond all possible
bounds of human decency.” Public Finance Corp. v. Davis, 66 Ill. 2d 85, 90, 360 N.E.2d 765,
767 (1976). The outragcousness of a defendant’s conduct must be determined in view of all the
facts and circumstances in the case. McGrath, 126 I. 2d at 90, 533 N.E.2d at 811. The degree
of contro] that a defendant maintains over a plaintiff is relevant to the question of whether a
defendant’s conduct is outrageous, as is defendant’s awarcness that a plaintiff is particularly
susceptible to emotional distress because of a physical or mental condition, Jd. at 86-91, 533
N.E.2d at 809-811. Both parties have moved for summary judgment on plaintiffs’ LED claims.

Plaintiffs emphasize several factors that they argue establish their claims for intentional
infliction of emotional distress. They stress that Bonaventure Housc is a residential facility for
persons with ATDS who have a history of substance abuse and low income. Because
Bonaventure is in the unique position of providing its residents with basic necessities such as

food and shelter as well as counscling and other support, plaintiffs contend, it has a great deal of

23


Facts, 4 20,

Afler some negotiations between Cotton and Bonaventure’s administrative staff, Cotton
was permitted to stay until 6:00 p.m. Pl’s 56.1 Stmt., § 11. Around 5:30 p.m,, Bonaventure gave
Cotton a Ictter stating that he had to leave by 6:00 p.m. or Bonaventure House staff would call
the police. /.; Pl’s Roply Appendix, Ex. 9 (Letter from Marty Hansen to Greg Cotton). The
letter did not stale any reasons why Cotton was being asked to leave. It did, however, provide
Cotton with the names and phone numbers of persons to contact at two organizations that might
be able lo help him secure alternative housing and mental health treatment. The letter informed
Cotton that he could return to Bonaventure House two days hence, on Friday, November 1, 2002
at 9:00 a.m., lo receive a “detailed written explanation” why his residency was being terminated.
dd, The letter further stated that Cotton would be allowed to appeal the decision in writing and at
an appeals meeting during which he could confront witnesses with the aid of counsel. Cotton
was informed that he would receive a final decision on the matter in writing by November 8,
2002, and that his belongings would be secured at Bonaventure House until that time. Jd

Cotton left Bonaventure House on October 30, 2002 as requested. On the nights of
October 30 and 31, Cotton slept on the “L” train and in a Chicago city park. Cotton Affidavit,
10-14. On November 1, Cotton met with his attorncy who then contacted Bonaventure and
advised that she intended to file suit in federal court to restore Cotton to possession of his
residence. Pl’s 56.1 Resp., 35. That same day, Bonaventure House wrote Cotton a letter
detailing reasons for its decision to dismiss him from the program. Def.’s 56.1 Stmt., Ex. B. The

letter documented a series of examples of Cotton’s behavior during his residency at Bonaventure,

me,

including behavior that Bonaventure characterized as “extreme,

negative” and “dangerous to



participants in a program that extends beyond simply providing housing. Though they contribute
a percentage of their monthly income to offset housing costs, residents receive free meals, public
benefits counseling, assistance in connecting with community psychological services, and
referrals for substance abuse and mental health counseling and treatment. And while residents
ate given private rooms that they may lock to the exclusion of other residents, Bonaventure’s
administrative staff may enter a resident’s room at any time.” Jd. These features of
Bonaventure’s relationship to its residents are inconsistent with a landlord-tenant relationship.
Plaintiffs cite no authority, and we can find none, that supports the notion that occupancy
agreements between assisted living facilitics and its residents ought to be considered leases.

We agrce with Bonaventure, therefore, that the Illinois Forcible Entry and Detainer Act
does not apply to its decisions to terminate Cotton and Bolden and eject them from the premises.
Though plaintiffs emphasize the Act’s broad language, it is designed to regulate the landlord-
tenant relationship, specifically to prevent landlords from using sclf-help remedies to oust
holdover tenants or lessees otherwise holding without right. See 735 ILCS 5/9-102(4) (allowing
landlord to maintain forcible detainer action against lessee holding possession without right); id.,
9-210 (requiring landlord to give 10 days “notice to quit” before cvicting tenant for default made
in the terms of a Jease). Though the general prohibition against forcible entry onto “lands or
tenements,” see id., 9-101, might be thought broad enough to regulate any dispute over
possession of real property, the procedural requirements for admitting and discharging residents
from transitional living facilities like Bonaventure House are specifically and comprehensively

provided for elsewhere in the Illinois code. As Bonaventure points out, the Illinois Supportive

2 On the issue of possession and control, we also note that residents share toilets and showering facilities.

20


Conclusion

For the reasons stated above, Bonaventure’s motion for summary judgment [Docket # 34-
1] is granted as to plaintiffs’ claims under the Minois Forcible Entry and Detainer Act and the
Chicago Residential Landlord Tenant Ordinance, (Counts 2 and 3) and is otherwise denied.
Cotton and Boldcn’s motions for summary judgment (Docket # 20-1] are also denied; however,
the Court finds pursuant to Federal Rule of Civil Procedure 56(d) that both plaintiffs have
established a violation of their rights under HOPWA (o written pre-termination noticc. The case
is set for a status hearing on July 14, 2003 at 9:30 a.m. for the purpose of setting a trial date and
discussing the possibility of settlement. The previously entered restraining orders remain in

effect through that date and may be further extended at that time.

United States District Judge

Date: July 7, 2003

26



unlawful for any landlord or any person acting at his discretion knowingly to oust or dispossess
.. any tenant from a dwelling unit without authority of law”). Though the ordinance applies to
“dwelling units operated under subsidy programs of agencies of the United States,” its coverage
excludes “housing accommodations” in any “extended care facility.” Chicago Municipal Code
§§ 5-12-010, 5-12-020(c). The term “extended care facility” is not defined in the code. The
Illinois Appellate Court, however, has recently addressed the question whether an assisted living
facility for senior citizens qualifics as an “extended care facility,” excluding it from coverage
under the CRLTO. Antler v. Classic Residence Management Limited Partnership, 315 Ill. App.
3d 259, 733 N.E.2d 393 (2000). It concluded that “by exempting the category of dwellings
known as ‘extended care facilities,’ the Chicago city council acknowledged that certain groups of
individuals ... may seek or require more specialized living arrangements than are contemplated
by the landlord/tenant relationship created in the ordinary lease agreement,” and that those
arrangements ought to be regulated separately. dd. at 266, 733 N.E.2d at 399, With respect to the
assisted living facility at issue in the case, the court determined that the existence of various
supportive services provided a sufficicnt basis for the conclusion that residents at the facility had
entered into “provider/resident relationships” rather than landlord/ tenant relationships, and that
the assisted living facility qualificd as an “extended care facility” under the CRLTO, Jd, at 267,
733 N.E.2d at 400.

We agree with Bonaventure that its transitional living facility likewise qualifies as an
extended care facility. As discussed, residents at Bonaventure House are participants in a
comprehensive program and receive a variely of supportive services. Procedures governing the

type of supportive residence that Bonaventure operates are expressly provided by HOPWA and

22



hearing was not legally required, and the 45-minute meeting that Hansen had with Bolden before
terminating him may have been sufficient pre-deprivation “process,” so long as the formal
hearing required by HOPWA was later offered. The existence of an emergency, however, is
genuinely disputed and cannot be determined on summary judgment.

There is also a serious question whether Bonaventure ever intended to provide a post-
termination hearing. Bonaventure argues (hat il intended to do so but that Bolden beat them to
the punch by sccking and obtaining a temporary restraining order. But Bonaventure provides no
evidence to support this argument: the affidavits of the participants contain nary a hint of such a
claim or intention, and as we have noted not even the post-termination notice that Bonaventure
sent mentioned any right on Bolden’s part to challenge Bonaventure’s actions. On the othcr
hand, as a practical matter, the quick intervention by Bolden’s counsel and the court may have
made a hearing a moot point for purposes of determining the relicf to which Bolden may be
entitled. None of these issues, however, can be determined by the Court on summary judgment.

Jn sum, both plaintiffs have shown that their right to fair notice was violated, but both
plaintiffs’ summary judgment motions are otherwise denied, as is defendant’s cross-motion.

B. State and Local I_andlord Tenant Law

Plaintiffs contend that Bonaventure House is governed not only by the operational
guidelines established by HOPWA and its implementing regulations, but also by principles of
Illinois and Chicago landlord-tenant law. They argue that in addition to providing the minimum
formal process required by HOPWA, Bonaventure is required to file an action under the Illinois
Forcible Entry and Detainer Act before it terminates assistance to program participants. They

also argue that Bonaventure is required under the CRLTO to obtain a court order of posscssion

17



discharge procedure, which does not expressly guarantee formal process, therefore complies with
the regulation because a participant may be discharged under the procedure only for violating a
condition of occupancy.

Leaving aside for a moment the sufficicncy of Bonaventure’s policics, the Court disagrecs
with its reading of the regulation. There is no basis to read the regulation’s use of the two
different terms--“requirements” and “program requirements’—to mean the same thing. A more
reasonable reading is that the more general term-"rcequircments” .is intended to have a broader
meaning than the more specific “program requirements.” In any event, we are not convinced that
the regulation draws any meaningful distinction between violations of “program requirements”
and violations of “conditions of occupancy.” As plaintiffs point out, neither of those terms are
anywhere defined in HOPWA’s implementing regulations. Tf, as Bonaventure contends, a
program participant’s minimum due process rights under HOPWA were meant to depend on
whether the participant is terminated for violating a “program requirement” as opposed to a
“condition of occupancy,” it is reasonable lo believe that the regulation would have offered some
guidance as to the kind of rules that fall in to each category. Otherwise, a HOPWA grantee like
Bonaventure could avoid its duc process obligations each time it discharged a participant by
simply characterizing the basis for termination as a violation of a condition of occupancy rather
than a program requirement. There is no reason to believe that in promulgating regulations under
a statute whose overall purpose included limiting terminations to “the most severe cases,” see §
574.310(e)(2)(i), with the intent of ensuring that “reasonable efforts be made to intervene before

terminating assistance,” S. Rep. No. 101-316 at 172, reprinted in 1990 U.S.C.A.A.N. 5763,

5934, HUD intended to create a regulatory scheme that would be so easily manipulable.



terminated Bolden from its program, citing his alleged behavior on November 17. Pl’s 56.1
Resp., 56. Bolden was told to leave the premises by 3:00 p.m. that day. Pl’s 56.1 Stmt., 4 29.
He packed some of his personal property and left as requested. /d., 157. Bonaventure secured
his remaining belongings and informed him that he could retum to retrieve them later that
evening, /d. Bonaventure did not provide Bolden with a written explanation of the reasons for
his termination. Jd., {| 31; Def’s 56.1 Stmt., {] 58-59. On November 20, 2002, Bolden filed suit
against Bonaventure in this Court, along with a motion for a temporary restraining order. Like
Cotton, he argued that Bonaventure had terminated his residence without complying with the
procedural requirements imposed by HOPWA and by state and local landlord-tenant law. The
Court granted his motion, ordering him to be restored to full use and occupancy of his residence.
Bolden retumed to Bonaventure House on the evening of Novembcr 20 and has continued to
reside there since that time.
Discussion

Before the Couri now are cross-motions for summary judgment. In their complaints,
Cotton and Bolden allege that Bonaventure terminated their residencies without following the
procedural guidelines imposed by HOPWA, and without pursuing formal eviction actions against
them pursuant to Tllinois law and the Chicago Residential Landlord Tenant Ordinance. Plaintiffs
further claim intentional infliction of emotional distress, alleging that the manner in which
Bonaventure handled their terminations was outrageous. Plaintiffs have moved for summary
judgment as to liability on all of their claims.

In its cross-motion for summary judgment, Bonaventure argues that its involuntary

discharge policy complies with HOPWA regulations and that it satisfied the due process



the Bonaventure community.” /d. It stated that Cotton had been terminated because his
“continuing belligerent and threatening verbal behaviors presented a threat to the Bonaventure
community.” fe.

For the nights of November 1-4, Bonaventure House paid for Cotton to stay at the
Diplomat Hotel, a single room occupancy building. Agreed Facts, 122. On November 4, 2002,
Bonaventure House sent Cotton a sccond letter, addressed to his attorney, which explained that
Cotton could obtain reconsideration for participation in its program if he submitted to a
psychological evaluation. /d., Ex. C. On November 5, 2002, Cotton appeared before this Court
arguing that Bonaventure House had terminated his residency without providing the notice and
hearing required by HOPWA, and without the service of a summons and complaint as required
by the Illinois Forcible Entry and Detainer Act and the Chicago Residential Landlord and Tenant
Ordinance. We granted his motion for a temporary restraining order, directing Bonaventure
House to restore Cotton to full use and occupancy of his residence. He continues to reside at
Bonaventure House pending the outcome of the parties’ motions for summary judgment.

Like Cotton, Emory Bolden is a person living with AIDS, Agreed Facts, ¢ 27. He moved
into Bonaventure House on November 5, 2002, /d., 4] 25. Bonaventure asserts that on
November 17, 2002, Bolden entered another rcsident’s room uninvited and attempted to engage
him in sexual contact. Hansen Affidavit, 79. It asserts that the other resident, who had been
sleeping, awoke startled, rebuffcd Bolden’s advances, and asked him to leave. /d. According to
Bonaventure, Bolden initially refused to leave the resident’s room but eventually did so
voluntarily. 7d.

After meeting with Bolden on the moming of November 19, 2002, Bonaventure



before it orders residents to leave its facility. Bonaventure concedes that its involuntary
discharge policy, as provided in its Handbook, does not incorporate any of the requirements of
the Detainer Act or the CRLTO and that it discharged plaintiffs without considering those laws.
It argues, however, that it does not maintain a landlord-tenant relationship with its program
participants and is therefore not required to comply with rules governing leaschold arrangements.
Bonaventure insists that the procedures for discharging residents from supportive residential
facilities like Bonaventure are provided for exclusively by HOPWA and the Illinois Supportive
Residences Licensing Act, 210 LLCS 65/1 ef seg., an Illinois law that complements HOPWA.
We agree with Bonaventure thal landlord-tenant law does not apply to its decision to discharge
participants from iis program.

1, The Illinois Forcible Entry and Detainer Act

The Illinois Forcible Entry and Detainer Act provides that “[n]o person shall make entry
into lands or tenements except in cases where entry is allowed by law, and in such cases he or she
shall not enter with force, but in a peaceable manner.” 735 ILCS 5/9-101. It further provides
that “[t]he person entitled to the possession of lands or tenements may be restored thereto ...
[w]hen a peaceable entry is made and the possession unlawfully withheld,” or “[w]hen any lessee
of the lands or tenements, or any person holding under such lessee holds possession without right
after the termination of the lease or tenancy by its own limitation, condition or terms, or by notice
to quit or otherwise.” 735 ILCS 5-9/102 (a)(2) & (4). Plaintiffs contend that the Detainer Act
provides the sole means under Illinois law for settling a dispute over the possession of rcal
property when a person has peaceably entered the property. Consequently, they argue,

Bonaventure was required to bring an action under the Act before it took steps to terminate

18



policy as stated in its Resident Handbook fails to comply with those regulations on its face.
Though Bonaventure concedes that it is bound by HOPWA regulations generally, it denies that it
is obligated to provide due proccss as prescribed by HOPWA when it terminates residents for
violating “conditions of occupancy.” Alternatively, it argues that its involuntary discharge policy
and the specific proccdures it followed in terminating Cotton and Bolden’s residencies at
Bonaventure House demonstrate full compliance with its obligations under the Act.
The HOPWA regulation at issue provides as follows:
(2) Violation of requirements. (i) Basis. Assistance to participants who reside in
housing programs assisted under (his part may be terminated if the participant violates
program requirements or conditions of occupancy. Grantees must ensure that
supportive services are provided, so that a participant’s assistance is terminated only
in the most severe cases. (ii) Procedure. In terminating assistance to any program
participant for violation of requirements grantccs must provide a formal process that
recognizes the rights of individuals receiving assistance to due process of law. This
process must consist of: (A) Serving the participant with a written notice containing a
clear statement of the reasons for termination; (B) Permitting the participant to have a
review of the decision, in which the participant is given the opportunity to present written
objections, and be represented by their own counsel, before a person other than the
person (or subordinate of that person) who made or approved the termination decision;
and (C) Providing prompt written notification of the final decision to the participant.
24 CFR. § 574.310(e). To summarize, a participant’s assistance may be terminated if he or she
“violates program requirements or conditions of occupancy.” A “formal process” recognizing
the participant’s right to duc process of law is required for any termination “for violation of
requirements.”
Seizing on § 574.310(c)(2)(ii)’s use of the term “requirements,” Bonaventure equates that

term with § 574.310(e)(2)(i)’s authorization to terminate residents for violating “program

requirements” and argues that § 574.310(e)(2)(ii) does not require due process when it terminates

a participant for violating a “condition of occupancy.” Bonaventure argucs that its involuntary



influence over its residents’ well-being. Plaintiffs point out that a confirmed AIDS diagnosis is a
prerequisite for admission to Bonaventure House, and that Bonaventure must have known that
plaintiffs would suffer physically and emotionally as result of being forced out on such short
notice. Cotton contends that as a result of Bonaventure’s actions he was forced to slecp on CTA
trains and in public spaces for two nights, that has experienced physical health difficulties, and
that he has suffered from nightmares and depression. Bolden asserts that he feared he would be
arrested if he did not leave Bonaventure House and that he felt humiliated. He claims to have
suffered from depression and loss of appetite as a result of his abrupt discharge from
Bonaventure’s program.

Bonaventure argues that its decision to ask plaintiffs to leave Bonaventure House was
reasonable, and certainly not outrageous. It insists that it removed plaintiffs to avert a threat to
other residents in jis community, and that it took steps to ensure that plaintiffs had a place to stay
when they left. It emphasizes the high threshold for proving outrageous conduct in a claim for
intentional infliction of emotional distress, citing to a case in which a court in this district
dismissed an ITED claim in which a plaintiff alleged that her eviction resulted in hospitalization.
See Anast, 956 F. Supp. at 802-803. We acknowledge that the threshold for establishing that a
defendant’s conduct was outrageous is high. But applying the principles discussed by the Illinois
Supreme Court in McGrath, including the degree of control Bonaventure maintained over
plaintiffs and its knowledge of their serious illnesses, we conclude that a reasonable jury could
determine that Bonaventure’s conduct meets the required standard. It is undisputed that
Bonaventure ordered plaintiffs, both of whom were known by Bonaventure to be impoverished

and suffering from AIDS related illnesses, to leave its supportive residence with only a few

24


‘Mine Qeder Form (08°97)

United States District Court, Northern District of Minois

Name of Assigned Judge
or Magistrate Judge

Matthew F. Kennelly Sitting waited Sudge

CASE NUMBER

02 C 7969 DATE 7/7/2003

ql)

CASE Cotton vs, Alexian Brothers
TITLE
[In the following hox (2) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state bricfly the nature
MOTION: of the motion being presented.J
DOCKET ENTRY:
q) o Filed motion of [ use listing in “Motion” box above.]
(2) Oo Brief in support of motion due _
(3) o Answer brief to motion due . Reply to answer brief duc__
(4) o Ruling/Hearing on setfor at
(3) 6 Status hearing[held/continued to] [set for/re-set for] on set for at
(6) Oo Pretrial conference[held/continued to] [set for/re-set for] on set for al
(7) o Trial[set for/re-set for} on __ ate
(8) o (Bench/Jury trial] [Hearing] held/continued to at
(9) oOo This case is dismissed [with/without] prejudice and without costs[by/agreemenv/pursuant to]
GFRCP4(m) O Local Rule 41.1 C)FRCP41({ay(1) DO FRCP41(a)(2).
(10) [Other docket entry] For the reasons set forth on the attached order, Bonaventure’s motion for summary

judgment (34-1) is granted as to plaintiffs’ claims under the Illinois Forcible Entry and Detainer Act and the
Chicago Residential Landlord Tenant Ordinance, (Count 2 and 3) and is otherwise denied. Cotton and Bolden’s
motions for summary judgment (20-1) are also denied; however, the Court finds pursuant to Federal Rule of Civil
Procedure 56(d) that both plaintiffs have established a violation of their rights under HOPWA to written pre-termination
notice. Status hearing set to 7/14/03 at 9:30 a.m. The previously entered restraining orders remain in effect.

| [For further detail see order attached to the original minute order,]

No notices required, advised in open court. Document

No notices required,

Notices mailed by judge’s staff.

ved counsel by (9 2003
Notlied counsel by telephone. as ‘dave dackcied

Docketing ta mail notices.

Mail AO 450 form.

Copy to judge/magistrate judge.

Number

number pf novices

OR

Lange Lomisia‘siq ting debe iil
; My eh emg ate mailed notice

courtroom Sb ad B= PP gy

deputy’s

initials

<1 Datgjtime received in

central Clerk's Office rraling dept ints



immediately homeless by the decision to terminate their residency. Plaintiffs rely on Supreme
Court decisions in the area of Fourteenth Amendment procedural due process to support its
argument that pre-deprivation notice and hearing are required in terminating assistance to
participants in HOPWA funded residential programs. See, e.g., Zinermon vy. Burch, 494 U.S. 113
(1991); Goldberg v, Kelly, 397 U.S. 254 (1970). Because HOPWA and its implementing
regulations are silent on the issuc, we agree that the Supreme Court’s treatment of constitutional
due process is instructive,

The essence of due process is “the opportunity to be heard ‘at a meaningful time and in a
meaningful manner.’” Matthews v. Eldridge, 424 U.S. 319, 335 (1976) (quoting Armstrong v.
Manzo, 380 U.S. 545, 552 (1965)). The Court has held that the extent to which Fourteenth
Amendment procedural due process must be afforded to a recipient of public bencfits is
influenced by “the extent to which (a recipient] may be ‘condemned to suffer grievous loss,’ and
depends upon whether the rccipient’s interest in avoiding that loss outweighs the governmental
interest in summary adjudication.” Goldberg, 397 U.S. at 263 (citing Joint Anti-Fascist Refugee
Committee v. MeGrath, 341 U.S. 123, 168 (1951) (Frankfurter, J., concurring)). An individual is
presumptively entitled to notice and an opportunity for a hearing prior to the permanent
deprivation of a recognized interest in liberty or property. Porter v. DiBlasio, 93 F.3d 301, 305
(7° Cir. 1996) (citing Logan v. Zimmerman Brush Co., 455 U.S. 422, 434 (1982)). Post-
deprivation process is typically inadequate “absent ‘the necessity of quick action by the State or
the impracticality of providing any predeprivation process.” Logan, 455 U.S. at 436 (quoting
Parratt, 451 U.S. at 539). These principles suggest that in determining the proper timing of the

written notice and hearing guaranteed by HOPWA’s implementing regulations, we should

ll



The plain language of the regulation provides that in terminating assistance to any
program participant for violation of “requirements,” HOPWA grantees must provide the
participant with minimum procedural duc process, 24 C.F.R. § 574.310(c)(2)(ii). We
understand this to mean that whenever a supportive residence like Bonaventure discharges one of
its residents for failure to comply with the rules established by its program, it must provide the
participant with the minimum formal process outlined in § 574.310(e)(2)(ii)(A)-(C). The
question before us, therefore, is whether Bonaventure’s involuntary discharge policy and the
steps it took to discharge Cotton and Bolden from its program comported with its due process
obligations under 24 C.F.R. § 574.310(c).

2. Bonaventure’s Involuntary Discharge Policy

We begin with Bonaventure’s involuntary discharge policy. According to its Resident
Handbook, a resident may be asked to leave Bonaventure House involuntarily for any of eight
cnumerated reasons, including participation in physical violence or abuse. Handbook, § 10.3.
Under this policy, Bonaventure’s Director of Programs and Services has the discretion to
determine the amount of time that the departing resident has to vacate the premises. Jd. In
particularly serious situations, such as when a resident has threatened bodily harm to another
person, Bonaventure reserves the right to ask the resident to leave immediately. Jd.

Plaintiffs argue that these features of Bonaventure’s policy conflict with its due process
obligations. This argument is based on plaintiffs’ position that § 574.310(e) does not permit
post-deprivation hearings. Though the regulations are silent as lo the issue of timing of a
required hearing, plaintiffs assert that post-deprivation hearings are inadequate to protect the

nights of Bonaventure’s sick and impoverished residents, many of whom could be rendered

10



requirements imposed by the Act when it terminated Cotton and Bolden from its program.
Bonaventure argues that the program is not governed by Illinois landlord-tenant law and that
Bonaventure is not required to comply with the Detainer Act or the CRLTO when it decides to
terminate a program participant’s residency. It also argues that plaintiffs have failed to produce
evidence that would support a claim for intentional infliction of emotional distress.

Cross motions for summary judgment are considered separately. With respect to cach
party’s motion, we must cvaluate admissible evidence in the record in the light most favorable to
the nonmoving party. Bennett v. Roberts, 295 F.3d 687, 694 (7 Cir. 2002). To prevail, the
moving party must demonstrate that there is no genuine issue of material fact, and that it is
entitled to judgment as a matter of law. But a non-moving party who bears the burden of proof
on an issue must affirmatively demonstrate that there is a genuine issue of material fact that
requires trial. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).

The parties here dispute some of the factual circumstances surrounding Cotton and
Boldcn’s discharge from Bonaventure House. Fundamentally, however, the parties disagree
about the Icgal requirements imposed on Bonaventure when it decides to discharge a participant

from its program. We first address the issue of Bonaventure’s due process obligations under

HOPWA.
A. HOPWA
1 “Conditions of Occupancy”

Plaintiffs argue that in terminating their residencies and discharging them from its
program, Bonaventure failed to comply with the duc process requirements imposed by

HOPWA’s implementing regulations. They also argue that Bonaventure’s involuntary discharge


Residents Licensing Act, 210 ILCS 65/1 et seq., provides the state regulatory framework for
licensing and administering supportive residences for persons with HIV, The Act authorizes the
Illinois Department of Public Health to establish “minimum standards rules and regulations that
will facilitate the provision of quality residential care that is specific to the unique necds of
persons with HIV Disease, while ensuring the protection of residents’ ti hts and general
welfare.” 210 ILCS 65/5. The Act’s implementing regulations prescribe standards that
supportive residences like Bonaventure must incorporate in establishing involuntary discharge
procedures. Specifically, supportive residences must adopt policies that provide for client
notification and duc process concerning involuntary discharge, including “timeframes between
counseling, notice, and involuntary discharge consistent with the reason for the involuntary
discharge.” 77 Ill, Adm. Code § 385.1800. Given the focused attention of the Illinois legislature
and the Mlinois Department of Public Health to the procedural rights of residents of HIV
supportive residences, and in the absence of authority to suggest that the Illinois Forcible Entry
and Detainer Act ought to apply to assisted living facilities generally, we conclnde that in
terminating assistance to plaintiffs Bonaventure was obligated under state law solely to comply
with the procedures prescribed by the Tinois Supportive Residences Act2

2. Chicago Residential Landlord and Tenant Ordinance

Similarly, we reject plaintiffs’ claim that Bonaventure was required to obtain a court
order of possession under the Chicago Residential Landlord and Tenant Ordinance before it

discharged plaintiffs from its program, See Chicago Municipal Ordinance § 5-12-160 (“{iJt is

> We note that plaintiffs have not based any of their claims on their rights under the Illinois Supportive
Residences Act, and we therefore do not address whether Bonaventute’s involuntary discharge policy or its actions
in terminating plaintiffs comport with its obligations under the Act

21


residents. Pl’s 56.1 Resp., 16. Specifically, it provides public benefits counseling, assistance in
executing durable powers of attomey for health care and property, assistance in connecting
residents with appropriate community psychological services, and collaboration with other
community based service providers to provide residents with substance abuse and mental health
counseling and treatment. Jd. It docs not provide medical care to its residents, nor does it
administer medication. Agreed Facts, J] 7-8.

Bonaventure House has adopted a Resident Handbook that sets forth guidclines for its
transitional living program. /d., 11. According to the Handbook, abusive language, violence
and threat of violence are prohibited. Handbook, §§ 8.10, 8.19. A corrective action policy is in
place to enforce these prohibitions, Pl’s 56.1 Resp., 24. As part of the corrective action policy,
Bonaventure Houses issues written or verbal warnings depending upon the nature of the
infraction. Jd. In serious situations a resident may be asked to leave the program immediately.
fd.,§25, The Director of Programs and Services has the discretion to determine the amount of
lime the terminated resident has to vacate the premises. Handbook, § 10.3.

Plaintiff Gregory Cotton is a person living with AIDS, Jd., | 12. He moved into
Bonaventure House around January 24, 2001. /d., 13. On October 30, 2002, Marly Hansen, a
social work supervisor for Bonaventure House told Cotton that he was being terminated from the
program, and that he needed to leave the building by 3:00 p.m. that day. Pl’s 56.1 Stmt., | 6.
Hansen claims that he told Cotton that he was being terminated for “inappropriate behavior.”
Hansen Aff., | 2. Two weeks earlier, according to Hansen, Cotton had threatened to “slice
someone’s throat” in the Bonaventure House dining room. fd. Bonaventure House did not give

Cotton written notice prior to first informing him that he had to leave the premises. Agreed



becomes dangcrous and must be removed quickly, there is no reason why a HOPWA program
administrator could not produce this simple notice within a few minutes.

On the other hand, it does not follow that Bonaventure’s involuntary discharge policy
fails as a matter of law to comply with HOPWA’s due process requirements. Bonaventure’s
failure to provide pre-termination notice may subject it to liability in individual cases, but there is
no basis to declare its policy-which is silent on the timing issue—illegal.

3. Plaintiffs’ Termination

The question remains whether Bonaventure complicd with its due process obligations
when it discharged Cotton and Bolden from its program. We address this question separately as
to each plaintiff, beginning with Cotton.

Cotton argues that he was forced out of Bonaventure House without first being provided
with written notice of the reasons for his termination and without an opportunity for a hearing.
Bonaventure contends that it was under no obligation to provide pre-deprivation process. As we
have discussed, however, duc process as that term is used in HOPWA’s implementing
regulations requires that Bonaventure provide departing residents with prior written notice stating
the reasons for termination. See generally, Mullane v. Central Hanover Bank & Trust Co., 339
USS. 306, 314 (1950) (“[a]n elementary and findamental requirement of due process in any
proceeding which is to be accorded finality is notice reasonably calculated, under all the
circumstances, to apprise interested parties of the pendency of the action and afford them the
opportunity to present their objections .... when notice is a person’s due, process which is mere
gesture is not due process” ), Moreover, as previously discussed, unless Cotton posed. an

imminent threat to the residents and employees of Bonaventure House or some other emergency

14



requires resolution of factual disputes, which we cannot do in deciding a motion for sammary
judgment or even in deciding cross-motions.

We next address Bonaventure’s actions in terminating assistance to Bolden. According
to Bonaventure, on the night of November 17, 2002, Bolden entered another resident’s room
uninvited, attempting to initiate sexual contact. Hansen Affidavit, | 9. After Bolden allegedly
touched the other resident’s facc, the resident awoke, rebuffed Bolden’s advances and asked him
to leave. 7 Bonaventure appears to have learned of this incident on November 18; Bolden says
he got a note that day asking him to mect with Bonaventure supervisor Marty Hansen the next
morning at 8:00 a.m. Bolden Aff., 19. At that mecting, Hansen told Bolden that he was being
terminated {or “assaulting” the other resident and that he was to vacate the premises by 3:00 p.m.
Id.,4 10. Though it prepared a letter that it later mailed to Bolden at his brother’s residence,
Bonaventure did not provide Bolden with written notice of any kind before he left, And it gave
Bolden no indication that he was entitled to challenge the decision (either before or after his
ouster), a notification clearly required by § 574.310 (e)(2)(@i)(B). For these reasons, the Court
finds that Bonaventure violated Bolden’s HOPWA right to pretermination written notice, a
violation that Bonaventure makes no effort to excuse on the grounds that it had no time to
provide proper notice (nor could it plausibly do so, given the passage of timc between the
incident and the November 19, 8:00 a.m. meeting with Bolden and the passage of time between
that meeting and his removal from the premises).

Bolden also contends that he was entitled to a pre-termination hearing. Bonaventure
contends that Bolden’s behavior on November 17 indicated that he posed an imminent threat to

other residents at Bonaventure Housc. Assuming an emergency truly existed, a pre-termination

16



On November 5, 2002, this Court granted Cotton’s request for a temporary restraining order
against Bonaventure House, ordering it to restore Cotton to full use and occupancy of his
residence pending a hearing on his petition for a preliminary injunction. On November 20, 2002,
we granted Bolden’s request for a TRO, likewise ordering Bonaventure House to restore him to
full use and occupancy of his residence. On December 9, 2002, the two cases were consolidated,
and the restraining orders against Bonaventure House were extended through the date of this
Court’s ruling on plaintiffs’ motion for summary judgment. The Court is now presented with the
parties’ cross motions for summary judgment.
Factual Background

Bonaventure House is a voluntary transitional living program for people with AIDS. PI's
56.1 Resp. 2. It receives ten percent of its operating cxpenses from the United States
Department of Housing and Urban Development (“HUD”) through HOPWA. Jd, 97.
Residents must complete an application and interview prior to being accepted into Bonaventure
House’s program. Jd.,]8, Once admitted, residents may stay at Bonaventure House for up to
twenty-four months. /@.,{6. Each resident is required to contribute forty-five percent of his
income to help offset operating expenses. Agreed Facts, Ex. A (Bonaventure House Resident
Handbook) § 6.14. Bonaventure House provides meals to its residents. Pl’s 56,1 Resp., 415. In
addition, each resident is given a private room that can be locked to exclude other residents.
Agreed Facts, 6. All residents share bathrooms, showering facilities and common living areas.
Id; Pl’s 56.1 Resp., 12. Bonaventure House reserves the right to enter and inspect a resident's
private room at any time. Id., | 10.

Tn addition to room and board, Bonaventure House provides on-site counseling to its

nN


hours’ notice. The evidence is consistent with a claim that Bonaventure callously forced
plaintiffs onto the strect, and did so without giving them a chance to give their side of the story
and without regard to whether they could find some place to stay. A reasonable jury could find
this conduct to be outrageous under Davis and its progeny. The Court therefore denies
Bonaventure’s motion for summary judgment on the HED claim.

That does not mean, however, that plaintiffs are entitled to summary judgment on this
claim. Some of the material facts upon which plaintiffs base their claims arc disputed. The
parties dispute, for instance, whether Bonaventure took steps to ensure that plaintiffs had a place
to stay when they lefl its facility, see Pl’s $6.1 Resp., 44 32, 58, an issue critical to establishing
whether Bonaventure knew that it was forcing plaintiffs on to the strect. In any event, summary
judgment for plaintiffs on their ITED claims would be inappropriate because the question of the
outrageousness of Bonaventure’s conduct is in these circumstances an issue properly reserved for

a jury determination. See McGrath, 126 Ill, 2d at 92, 533 N-E.2d at 812.

25


IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
GREGORY COTTON and )
EMORY BOLDEN )
)
Plaintiffs, )
)
ys, ) Case Nos. 02 C 7969 and
) 02 C 8437 consolidated
)
ALEXIAN BROTHERS ) DOCKETED
BONAVENTURE HOUSE, an Illinois y
not-for profit corporation, ) JUL Y 9 2003
)
Defendant. )

MEMORANDUM OPINION AND ORDER

MATTHEW F, KENNELLY, District Judge:

Alexian Brothers Bonaventure House is a supportive residence that provides a transitional
living program for people with HIV/AIDS. It receives federal funding through the Housing
Opportunities for People With AIDS Act (“HOPWA”), 42 U.S.C. § 12901 et seq. Plaintiffs
Gregory Cotton and Emory Bolden are persons living with AIDS. They reside at Bonaventure
House and participate in its transitional living program. During November, 2002, Bonaventure
terminated plaintiffs’ residency at its facility. At that time, plaintiffs sued separately in this
Court, each seeking a temporary restraining order and preliminary injunction against
Bonaventure. Each alleged that his residency had been terminated without notice and a hearing
as required by IIOPWA and sought to be reinstated in defendant’s transitional living program.
Plaintiffs also sought damages for the alleged IIOPWA violation, intentional infliction of

emotional distress, and alleged violations of the Illinois Forcible Entry and Detainer Act and the

Chicago Residential Landlord and Tenant Ordinance, as well as declaratory and injunctive relief.



consider the extent to which HOPWA grantees require the flexibility to make quick decisions
regarding their program participants, the gencral feasibility of providing predeprivation process,
the consequences to program participants of losing their assistance, and the adequacy of a written
notice and hearing after termination of a program participant’s benefits.

There is no doubt, as plaintiffs contend, that the consequences to HOPWA program
participants of losing their assistance are serious. Participants in supportive residential programs
like Bonaventure’s are impoverished, suffcr from AIDS related illnesses, and lack adequate
housing opportunities, A resident who loses his housing assistance may face homelessness and
may experience psychological stress that exacerbates his illnesses. Program participants
crroneously discharged from HOPWA facilities may suffer seriously during even short periods
between the time their residencies are terminated and the time of any post-deprivation hearing.
From this perspective, across-the-board post-deprivation hearings would be inadequate to protect
the due process rights recognized by HOPWA’s implementing regulations. Cf Anast v.
Commonwealth Apartments, 956 F. Supp. 792, 799 (N.D. IIL. 1997) (Because an improper denial
of benefits cannot be corrected casily at a later date, a pretermination hearing must be held before
eviction from public housing projects) (citing Goldberg, 397 U.S. 254; Caulder v. Durham
Housing Auth., 433 F.2d 998 (4" Cir. 1970)).

On the other hand, those charged with administering HOPWA funded programs may on
occasion have a legitimate need to be able to make quick decisions to protect the interests of all
program participants. Bonaventure argues convincingly that in situations where a particular
resident’s behavior is alleged to pose an imminent threat to the safcty of others, it has a

legitimate interest in removing the dangerous resident immediately. Under such circumstances, it

12



or exigent circumstance existed, he was entitled to a hearing prior to being put out on the street.

The parties agree that Cotton was asked to leave Bonaventure House on October 30,
2002. On that datc, he received a letter from Marty Hansen, Bonaventure’s social work
supervisor, informing him that he was required to vacate the premises by 6:00 p.m. Though the
letter stated that he could return the next moming to receive a detailed written explanation for his
termination, the Ictter did not state the rcasons for his termination. This was insufficient under
HOPWA. Cotton was entilled to a written notice containing a clear statement of the reasons for
his termination before he was discharged from Bonaventure House. The tettcr Bonaventure
mailed Cotton, a letter two days after kicking him out which stated the reasons for his
termination, did not satisfy Bonaventure’s obligation to provide pre-termination notice of the
reasons for its actions.

The October 30 lettcr stated no reasons, telling Cotton only that if he wanted to he could
come back the next day to get a written explanation. Nor does Bonaventure offer any evidence
that it so much as told Cotton the reasons for his termination beyond accusing him of

ol

“inappropriate behavior.”' Nor has Bonaventure even attempted to excuse the giving of prior
wrilten notice of its reasons, such as by arguing that it had to act quickly and had no time to
prepare the notice—a contention that in any event would be undermined by the fact that it had
more than cnough time to prepare a letter telling Cotton to leave.

Cotton also argucs that a pre-deprivation hearing was required; Bonaventure, for its part,

contends that its offer of a post-deprivation hearing was sufficient. Determination of this issue

' Bonaventure supervisor Marty Hansen's affidavit describes what he understood the “inappropriate
behavior” to be but does not say that he communicated this to Cotton. Hansen Aff., 2.

15