Petition for Writ of Certiorari — Sandra Black, Petitioner v. Naomi Friedrichsen, et al.

Supreme Court briefApr 13, 2024

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UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT

Everett McKinley Dirksen

United States Courthouse

Room 2722 - 219 S. Dearborn Street

Chicago, Illinois 60604

Office of the Clerk

Phone: (312) 435-5850

www.ca7.uscourts.gov

CERTIFIED COPY

ORDER

February 9,2024

Before

DIANE S. SYKES, ChiefJudge

DIANE P. WOOD, Circuit Judge

MICHAEL Y. SCUDDER, Circuit Judge

Seventh «ir.ci«L4

SANDRA BLACK,

Plaintiff - Appellant

No. 23-2902

NAOMI FRIEDRICHSEN, et al.,

Defendants - Appellees

Originating Case Information:

District Court No: l:19-cv-00307-TLS

Northern District of Indiana, Fort Wayne Division

District Judge Theresa L. Springmann_________

Upon consideration of the RESPONSE TO COURT REGARDING FILING OF BRIEF

AND REQUEST FOR RECONSIDERATION FOR CHANGE OF VENUE/TRANSFER

OF COURT FOR THE SAKE OF JUSTICE AND APPEARANCE OF HONESTY,

INTEGRITY, AND IMPARTIALITY, filed on February 2,2024, by the pro se appellant,

IT IS ORDERED that the request to reconsider is DENIED.

Appellant Sandra Black was ordered to show cause why her appeal should not be dismissed for

lack of prosecution under Circuit Rule 31(c)(2). Her response states that it is impossible for her

to file a brief in this court and her filings indicate that any arguments will focus on the alleged

racism and impartiality of the magistrate judge and district judge. She also asserts, without

support, that defendants and the court used fabricated or false evidence to rule against her.

Based on Black's indication that she will not be able to file a brief in this court and her filings

thus far, we conclude that any issues she is likely to raise are insubstantial and briefing would

not be useful to the court. See Taylor v. City of New Albany, 979 F.2d 87 (7th Cir. 1992); Mather

v. Vill. of Mundelein, 869 F.2d 356,357 (7th Cir. 1989). Accordingly,

IT IS FURTHER ORDERED that this appeal is DISMISSED.

(2 of 2)

UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT

Everett McKinley Dirksen

United States Courthouse

Room 2722 - 219 S. Dearborn Street

Chicago, Illinois 60604

Office of the Clerk

Phone:(312)435-5850

■www.ca7.uscourts.gov

NOTICE OF ISSUANCE OF MANDATE

March 4, 2024

To: Chanda J. Berta

UNITED STATES DISTRICT COURT

Northern District of Indiana

Fort Wayne, IN 46802-0000

SANDRA BLACK,

Plaintiff - Appellant

No. 23-2902

NAOMI FRIEDRICHSEN, et al.,

Defendants - Appellees

Originating Case Information:

District Court No: l:19-cv-00307-TLS

Northern District of Indiana, Fort Wayne Division

District Judge Theresa L. Springmann

Herewith is the mandate of this court in this appeal, along with the Bill of Costs, if any. A

certified copy of the opinion/order of the court and judgment, if any, and any direction as to

costs shall constitute the mandate.

RECORD ON APPEAL STATUS:

form name: c7_Mandate

(form ID: 135)

No record to be returned

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THE JUDICIAL COUNCIL OF THE SEVENTH CIRCUIT

219 South Dearborn Street

Chicago, Illinois 60604

September 1, 2023

Chief Judge Diane S. Sykes

Nos. 07-23-90029 & 07-23-90030

IN RE COMPLAINTS AGAINST TWO JUDGES

MEMORANDUM AND ORDER

The complainant filed misconduct complaints against the district judge and

ma gistrate judge assigned to her housing-discrimination case. She challenges several of the

judges' decisions in her case, including an order that she appear for a deposition and an

order denying her motion to compel. The complainant also alleges that both judges harbor

racial bias, accusing them of ruling against her because she is a "black litigant."

To the extent that the complainant challenges the correctness of the judges' rulings,

her allegations are not proper grounds for a misconduct complaint. Allegations directly

related to the merits of a judge's decisions do not raise an inference of misconduct and

must be dismissed. 28 U.S.C. § 352(b)(l)(A)(ii). "Any allegation that calls into question the

correctness of an official action of a judge ... is merits related." Rules FOR Jud.-CONDUCT &

Jud.-Disability PROC. r. 4(b)(1) cmt. And the complainant's allegations of racial bias are

frivolous. A misconduct complaint must be supported by sufficient facts to raise an

inference that misconduct occurred. 28 U.S.C. § 352(b)(l)(A)(iii). Adverse rulings alone are

not evidence of bias or any other misconduct.

This is the complainant's second set of misconduct complaints alleging similar

allegations against these two judges in the same case. The prior complaints were also

summarily dismissed as merits related and frivolous. Nos. 07-22-90009 and 07-22-90010.

Repetitive filing of insubstantial judicial-misconduct complaints is an abuse of the Judicial

Conduct and Disabilities Act. The complainant is warned that if she files another

misconduct complaint that is summarily dismissed as frivolous, merits related, and/or not

within the scope of the Act, I may ask the Judicial Council to curb her abuse of the Act by

requiring her to post a $1,000 bond before any future complaints are reviewed. See RULES

FOR Jud.-Misconduct & Jud.-Disability Proc. r. 10(a).

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USDC IN/ND case l:19-cv-00307-TLS

document 236

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UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

FORT WAYNE DIVISION

SANDRA BLACK,

Plaintiff,

CAUSE NO.: l:19-CV-307-TLS

NAOMI FRIEDRICHSEN, ERIKA HOLIDAY

(LIDDICK), HUNTERS RUN APARTMENTS

AND OWNERS, and INTERSTATE REALTY

MANAGEMENT CO.,

Defendants.

OPINION AND ORDER

This matter is before the Court on the Defendants’ Motion for Summary Judgment [ECF

No. 215] and a motion filed by the Plaintiff seeking various forms of relief [ECF No. 230] . For

the reasons below, the Court denies the Plaintiffs motion and grants summary judgment for the

Defendants.

PROCEDURAL BACKGROUND

The Plaintiff initially filed a complaint under cause number l:19-cv-222, alleging a

Fourteenth Amendment due process claim against these Defendants based on her alleged

wrongful eviction from her apartment. See Black v. Friedrichsen, No. l:19-cv-222 (N.D

. Ind.

2019) (ECF No. 1). Presiding Judge William C. Lee dismissed the case for lack of subject matter

jurisdiction under the Rooker-Feldman doctrine. See id. (ECF No. 3). The Plaintiff filed a motion

to reconsider, which Judge Lee determined raised a new constructive discharge claim under the

Fafr Housing Act, 42 U.S.C. §'3604. Id. (ECF Nos. 5, 6). As a result, Judge Lee directed the

Clerk of Court to docket the Plaintiffs motion to reconsider as a eomplamt-m^a-new-case,-whichresulted in the opening of this cause number 1:19-cv-307 on July 10, 2019. See id. (ECF No. 6).

65"

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The Plaintiff alleges race discrimination by the Defendants in violation of the Fair Housing Act,

42 U.S.C. § 3601 et seq. See Compl. 2, ECF No. 1. More specifically, she alleges that the

Defendants targeted her based on her race and falsely accused her of lease violations to force her

to vacate the apartment. Id. at 2-3. A few months later, the Defendants filed a motion to dismiss,

which Judge Lee denied. See ECF Nos. 14, 28. Before discovery began, the Plaintiff filed a

Motion for Summary Judgment [ECF No. 40], which was fully briefed [ECF Nos. 44, 47], Judge

Lee denied the motion on July 27, 2020. ECF No. 48.

On October 20, 2021, this case was randomly reassigned to the undersigned as the

iding judge. ECF No. 158. Discovery closed on April 19, 2022. See ECF No. 192. Granting

presi

the

Plaintiffs request for an extension of time, the Court set a summary judgment deadline of

October 28, 2022, a response deadline of November 28, 2022, and a reply deadline of December

15, 2022. ECF Nos. 206, 213.

On October 28, 2022, the Defendants filed the instant Motion for Summary Judgment

[ECF No. 215], a memorandum in support, and supporting evidence. The Plaintiff did not file a

response by the November 28, 2022 deadline. Instead, on November 1, 2022, the Plaintiff filed

(1) a Motion for Preventative Injunction [ECF No. 217], (2) a Motion to Strike Defendants

Motion for Summary Judgment [ECF No. 218], (3) a Motion to Admonish and Sanction

Defendants [ECF No. 219], and (4) a “Motion for Seventh Circuit Court Chief Judge Diane S.

Sykes to Rule Against Racism and the Conspiracy to Enable Racism m This Case Granting

Plaintiff a Right to a Fair Litigation and to [Be] Heard Fully” [ECF No. 220], On December 16,

2022, the Defendants filed a Request for Ruling on Their Motion for Summary Judgment, or

Alternatively, Request for Court to Interpret Plaintiffs Motion to Strike [ECF No. 223], to which

the Plaintiff filed a response [ECF No. 224], On January 17, 2023, the Plaintiff filed a Motion to

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Request a Court Appointed Attorney for Advisory/Assistance in this Matter [ECF No. 225]. On

February 13, 2023, the Plaintiff filed a Motion for an Immediate Order Establishing a Fact of the

Case [ECF No. 226],

On May 24, 2023, the Court issued an omnibus Opinion and Order [ECF No. 227]

resolving the pending motions but taking under advisement the Motion for Summary Judgment.

The Court extended the Plaintiffs deadline to respond to the Motion for Summary Judgment to

June 30, 2023. See id The Court explained that, if the Plaintiff did not file a response by the

deadline, the Court would construe her Motion to Strike as her summary judgment response

brief. Id The Court also directed the Clerk of Court to send the Plaintiff a copy of Appendix C to

the Local Rules for the Northern District of Indiana (“Notice to Pro Se Litigant ).

On June 5, 2023, the Plaintiff filed a “Part 1 of Corrupt Jim Crow Court: Motion to

Amend the Claim Subject Matter to Add ‘Violation of Constitutional Rights of the 14th

Amendment’ and to Restore the Original Complaint as Only a Corrupt Court Would Order a

Motion to Be a Claim” [ECF No. 228], asking the Court to reinstate the Fourteenth Amendment

due process claim dismissed for lack of subject matter jurisdiction in cause number L.19-CV222. On June 8, 2023, the Court denied the motion and reaffirmed the June 30, 2023 summary

judgment response deadline. ECF No. 229.

On July 5, 2023, the Plaintiff filed (1) a “Part 2 Jim Crow Court: Motion for Judge

Springmann to Disqualify or Remove Discriminatory, Bias and Fraudulent Acts, See Citing IV

[ECF Nos. 230, 231, 233] and (2) a “Notice to Defendants and Jim Crow Court: Cease and

Desist Misconduct, Bad-Faith Practice, Crimes of Fraud, Deprivation of Rights Under the Color

of Law, Conspiracy to Deprive Rights, and Aiding, Abetting a Corrupt Criminal Court in

Committing its Crimes, and Crimes of Bias!” [ECF No. 232].

(do

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Because the Plaintiff did not file a response by the June 30, 2023 deadline, the Court

hereby CONSTRUES the Plaintiffs Motion to Strike [ECF No. 218] as her response to the

Defendants’ Motion for Summary Judgment. On July 14, 2023, the Defendants timely filed a

summary judgment reply brief [ECF No. 234]. On July 17, 2023, the Plaintiff filed a Reply to

Defendants’ Bad-Faith Motion for Summary Judgment Supporting Jim Crow Treatment of a

Black Litigant” [ECF No. 235]. Because this Reply was filed without leave of Court and past the

response deadline, the Court does not consider it in ruling on the motion for summary judgment.

THE PLAINTIFF’S PENDING FILINGS

In her pending Motion [ECF Nos. 230, 231, 233], the Plaintiff raises ongoing concerns

wiith this litigation based largely on her conviction that the Court is racist and biased against her.

First, the Plaintiff asks for disqualification of the undersigned judge for judicial misconduct, for

failing to report judicial misconduct, and for discriminating against her. The Plaintiff previously

made similar arguments. See, e.g., ECF Nos. 178 (denying motion to recuse), 179 (denying

motion to recuse), 192 (denying motions to disqualify and motion to stay), 205 (denying motion

to recuse and motion to stay). The Court finds no reason to resolve these issues differently and

denies the request for disqualification or recusal for the reasons previously stated. See, e.g., ECF

No. 205, p. 6.

The Plaintiff contends that she is not allowed access to the docket and thus cannot quote

filings or dates of filings, attaching two screenshots of unsuccessful attempts to access the docket

using her Pacer login. However, using its own login, the Court accessed the docket through the

same Pacer screen by entering either the cause number with no judicial initials m the “number”

The Plaintiff also complains of the alleged biases of all the judges who have been involved in this case.

The Plaintiff has already filed at least two judicial complaints with the Seventh Circuit Court of Appeals

based on these allegations of racism and bias. See ECF Nos. 204, 220, 222.

(o<8

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field (l:19-cv-307 rather than 1:19-cv-307-TLS) or the case name “Black v. Friedrichsen” in the

“title” field (using “v.” rather than “vs.”).

The Plaintiff challenges the Defendants’ discovery production and Magistrate Judge

Collins’ 25-page, January 19, 2021 ruling on the parties’ motions to compel. See ECF No. 80.

However, the Plaintiff filed an objection to that ruling on February 8, 2021, see ECF No. 84, and

then-presiding Judge Lee overruled the objection on February 15, 2021, see ECF No. 86. The

Plaintiffs objection to the provisional award of fees against her was resolved by Judge Collins in

order reconsidering the award and ultimately denying the Defendants’ request for fees. See

ECF No. 210. Any objections to these and other discovery rulings are now untimely. See Fed. R.

Civ. P. 72(a) (allowing 14 days after being served with the order to file an objection).

The Plaintiff again asks the Court to appoint an attorney, for financial assistance, and for

an extension of time for discovery. The Court denies the request for counsel for the reasons set

forth in the Court’s May 24, 2023 ruling. See ECF No. 227. The Court denies the request to

subpoena the NAACP and the ACLU to participate in this case. The request for an extension of

time is

denied because the Plaintiff has made no showing of good cause or excusable neglect to

alter the June 30, 2023 response deadline.

For these reasons, the Court denies the relief requested in the Plaintiffs Motion [DE

230]. The Court has carefully read the Plaintiff s Notice [ECF No. 232] but takes no action

because the Notice does not ask for any form of relief. The Court again recognizes that all the

Plaintiffs filings express her opinions and frustrations regarding systemic racism in America.

However, as

even assu

Judge Lee stated in the opinion denying the Defendants’ motion to dismiss: But

ming [the Plaintiffs] opinion regarding racism in America is correct (her assertion that

systemic racism exists in this country is, after all, a tough one to refute), it is not evidence m this

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case nor is it relevant to any issue in the case. [Her] lengthy recitations about systemic racism are

a political argument, not a legal one.” ECF No. 28. Thus, the Court limits its analysis to whether

the Plaintiff has offered sufficient evidence of race discrimination to survive summary judgment.

SUMMARY JUDGMENT STANDARD

Summary judgment is warranted when “the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law. Fed. R.

Civ. P. 56(a). The movant may discharge this burden by “either: (1) showing that there is an

absence of evidence supporting an essential element of the non-moving party’s claim; or

(2) presenting affirmative evidence that negates an essential element of the non-moving party’s

claim.” Hummel v. St. Joseph Cnty. Bd. of Comm ’rs, 817 F.3d 1010, 1016 (7th Cir. 2016). In

response, the non-movant “must make a sufficient showing on every element of his case on

which he bears the burden of proof; if he fails to do so, there is no issue for trial. Yeatts v.

Zimmer Biomet Holdings, Inc., 940 F.3d 354, 358 (7th Cir. 2019) (citing Celotex Corp. v.

Catrett, All U.S. 317,323 (1986)). “[Inferences relying on mere speculation or conjecture will

not suffice.” Stephens v. Erickson, 569 F.3d 779, 786 (7th Cir. 2009).

In ruling on a motion for summary judgment, a court must construe all facts and draw all

reasonable inferences in the light most favorable to the nonmoving party. Yeatts, 940 F.3d at

358. A court’s role “is not to sift through the evidence, pondering the nuances and

inconsistencies, and decide whom to believe. The court has one task and one task only, to decide,

based on the evidence of record, whether there is any material dispute of fact that requires a

trial.” Waldridge v. Am. Hoechst Corp., 24 F.3d 918, 920 (7th Cir. 1994) (citations omitted).

Facts that are outcome determinative under the applicable law are material for summary

judgment purposes. Anderson v. Liberty Lobby, Inc., All U.S. 242, 248 (1986). Although a court

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construes a pro se party’s filings liberally, “pro se litigants are subject to the same substantive

legal rules as represented parties.” Balle v. Kennedy, 73 F.4th 545, 553-54 (7th Cir. 2023) (citing

Smallwood v. Williams, 59 F.4th 306, 318 (7th Cir. 2023); Famous v. Fuchs, 38 F.4th 625 631

n.22 (7th Cir. 2022)).

MATERIAL FACTS

Plaintiff Sandra Black entered into a Lease Agreement (Lease) with Hunter’s Run

Apartments LP (Hunter’s Run) on November 23, 2015, for the apartment located at 655 E.

Hunters Run Drive, Marion, Indiana, 46953 (the Apartment). See Def. Ex. A.2 The Plaintiff is

Black. See Compl. 1-4. Pursuant to the Lease, the following persons had a right to occupy the

Apartment: the Plaintiff, Kemuel Shem, Chrisdeon Ogunbuyide, Victoria Goree, and Christian

Goree. Def. Ex. A, H 4.

Correspondence from Hunter’s Run to the Plaintiff dated October 3, 2016, discusses the

work done to fix the Plaintiffs HVAC unit. Def. Ex. G. In April 2017, Hunter’s Run called the

Marion Police Department because the Plaintiff refused to leave the Hunter s Run Leasing

Office. Def. Ex. B.

On May 23, 2017, Hunter’s Run filed a complaint for possession in small claims court in

the Grant County, Indiana, Superior Court, in cause number 27D03-1705-SC-000517 . ECF No.

154, p. 1. Hunter’s Run alleged it was entitled to possession of the Apartment for Violation of

Lease Agreement - allowing unauthorized occupants to live at the apartment. Id.

On May 24, 2017, the Plaintiff filed a Complaint of Discrimination with the Indiana Civil

Rights Commission (ICRC) against the Defendants, alleging that she was threatened with

eviction on December 5, 2016, based on her race in violation of the Indiana Civil Rights Law,

2 The Defendants exhibits are located at docket entry 216.

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the Indiana Fair Housing Act, the Fair Housing Act, and Title VII of the Civil Rights Act of

1968. ECF No. 15-9. She alleged that she was harassed and threatened with eviction after

requesting maintenance repairs; she was accused of not cleaning up after her dog; she was

intimidated and talked down to when she called the office to make a maintenance repair request

and Naomi Friedrichsen would yell at and talk down to her like a child; she was directed to

submit all of her maintenance requests in writing; her Caucasian neighbor “Tonya” did not have

to submit her requests in writing; and she believed the Defendants treated Caucasian tenants

more favorably. Id.

On May 31, 2017, the Plaintiff filed a jury demand and attempted to file a counterclaim

in the pending small claims court action. ECF No. 15-4, pp. 2, 3. On June 2, 2017, Hunter s Run

filed an Amended Complaint for Possession of Real Property against the Plaintiff, alleging that

the Plaintiff (1) allowed unauthorized occupants to reside at the Apartment; (2) violated the

Automobile and Parking Areas Lease provision; and (3) violated the Resident Responsibilities

Lease provision. ECF No. 15-1. On June 5, 2017, the small claims case was transferred to a civil

plenary case in the Grant County, Indiana, Superior Court under cause number 27D03-1706-PL000014. ECF No. 15-4, p. 2. On June 14, 2017, the court entered a nine-page order denying

Hunter’s Run’s request for a Prejudgment Order of Possession and making a “preliminary

finding that there is a reasonable probability [the Plaintiff] is entitled to the continued possession,

use and enjoyment of her apartment.” See ECF No. 15-4, p. 1. Along with other factual findings,

the court made a preliminary finding that Hunter’s Run “did not prove that other persons

occupied the Apartment than were permitted by Paragraph 4 and 5 of the Lease. ” Id. at 4.

On August 2, 2017, the Plaintiff and Hunter’s Run entered into a Joint Agreement of

Parties (Joint Agreement) wherein Hunter’s Run agreed to allow Kemuel Shem, Jacee Shem, and

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Naomee Shem to reside at the Apartment in exchange for the Plaintiff agreeing to vacate the

Apartment on or before September 21, 2017. See ECF Nos. 15-5, 15-6, 15-7. On September 22,

2017, the state court granted Hunter’s Run’s motion to dismiss its claim against the Plaintiff,

ECF No. 15-8.

On March 26, 2018, the ICRC dismissed the Plaintiffs May 24, 2017 Complaint of

Discrimination with prejudice. ECF Nos. 15-10, 15-11.

Naomi Friedrichsen was the Senior Community Manager for Hunter’s Run. Def. Ex. G.

The Plaintiff testified that she found offensive the tone Ms. Friedrichsen used to talk to her. Def.

Ex. C-l, 242:17-20, 243:3-8. “It was the idea that it was belittling, and it was the idea that you

didn’t care-.” Id. at 243:9-10; see also Def. Ex. C-l, 284:25-Def. Ex. C-2, 286:18. The Plaintiff

testified that Naomi did not use the “N word” but talked to the Plaintiff like she “[didn’t] know

what she was talking about.” Def. Ex. C-2, 285:18—22, 286:11—12; see Def. Ex. C-l, 243.3—12

(“Not the words. It was her tone.”); Def. Ex. D, ^[ 3.

When asked at her deposition to identify a tenant of Hunter’s Run outside her protected

class whom the Defendants treated more favorably than her, the Plaintiff identified by name only

Tawnya Seacott. Def. Ex. C-l, 117:25-118:23; see also Def. Ex. C-2, 309:4-9. This was based

on Ms. Seacott allegedly having unauthorized occupants living in her apartment but not receiving

a lease violation notice. Def. Ex. C-3, 380:4-8. The Plaintiff testified that Ms. Seacott told the

Plaintiff she thought the Plaintiff was being treated differently than her regarding visitors. See

Def. Ex. C-l, 104:16-105:14, 111:8-113:20; see also Def. Ex. E, Resp4 3. When the Plaintiff

was asked to explain why she believed Hunter’s Run knew about this alleged lease violation by

Ms. Seacott, the Plaintiff testified that Ms. Seacott assumed Hunter’s Run knew. Def. Ex. C-l,

112:7-113:20; Def. Ex. C-2, 307:3-308:14; Def. Ex. C-4, 386:9-21, 387:12-21.

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Ms. Seacott executed an affidavit averring that Hunter’s Run did not permit her to have

unauthorized occupants in her apartment. See Def. Ex. F. She provides details of the years that

her daughter and grandchildren lived in the apartment with her as “Authorized Occupants” listed

in the Lease. Id.

3-6. She states, “At no point during the Lease Term did anyone other than

the Authorized Occupants reside at the Apartment.” Id. H 8. She adds that she never advised

either the Plaintiff or any employee or agent of Hunter’s Run that anyone other than Authorized

Occupants” resided at her apartment. Id.

9-10.

SUMMARY JUDGMENT ANALYSIS

The Fair Housing Act (FHA), also known as Title VIII of the Civil Rights Act of 1968,

allows an “aggrieved person” to file a civil action in federal court. See 42 U.S.C. § 3613(a)(1).

The FHA defines an “aggrieved person” as “any person who- (1) claims to have been injured by

a discriminatory housing practice; or (2) believes that such person will be injured by a

discriminatory housing practice that is about to occur.” Id. § 3602(i). Discriminatory housing

practice” is defined as “an act that is unlawful under section 3604, 3605, 3606, or 3617 of’ Title

42. Id. § 3602(f).

The Plaintiff alleges race discrimination by the Defendants in violation of the FHA,

contending that the Defendants targeted her based on her race and falsely accused her of lease

violations to force her to vacate the apartment. Construing her pro se complaint liberally, the

Court understands the Plaintiff as bringing a disparate treatment claim under § 3604, a

constructive eviction claim under § 3604, and interference and hostile housing claims under

§ 3617. The Defendants argue that they are entitled to summary judgment on all claims because

the Plaintiff cannot demonstrate a discriminatory motivation by any defendant, identify anyone

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sim ilarly situated outside her protected class who was treated differently, show severe or

pervasive harassment, or demonstrate constructive discharge.

To survive, summary judgment on each of these claims, the Plaintiff must produce

evidence that, considered as a whole, would allow a reasonable jury to find that the Defendants

treated her differently because of her race. See Ortiz v. Werner Enters., Inc., 834 F.3d 760, 765

(7th Cir. 2016) (explaining, on a Title VII employment discrimination claim, that the record

evidence “must be considered as a whole” to determine whether the plaintiff suffered an adverse

employment action due to a protected characteristic); Kormoczy v. Sec >, U.S. Dep’t ofHous. &

Urb. Dev. ex rel. Briggs, 53 F.3d 821, 823-24 (7th Cir. 1995) (explaining that the elements of

FHA discrimination claims under § 3604 “follow closely the elements of employment

discrimination”). In the alternative, the Plaintiff can proceed under the familiar McDonnell

Douglas burden shifting method to create an inference of discrimination by showing that she was

treated less favorably than similarly situated individuals not a member of her protected class. See

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973); East-Miller v. Lake Cnty.

Highway Dep % 421 F.3d 558, 563 (7th Cir. 2005) (citing Kormoczy, 53 F.3d at 823-24).3

Section 3604(b) Disparate Treatment Based on Race

Under § 3604(b), the FHA makes it unlawful “[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

3 Under the McDonnell Douglas burden shifting test, a plaintiff responding to summary judgment must

first establish a prima facie case “by showing that (1) he is a member of a protected class, (2) he was

meeting the employer’s legitimate expectations, (3) he suffered an adverse employment action, an

(4) similarly situated employees who were not members of his protected class were treated more

favorably "Reives v. III. State Police, 29 F.4th 887, 891 (7th Cir. 2022); see Watters v. Homeowners

Ass ’n at the Pres, at Bridgewater, 48 F.4th 779, 789 (7th Cir. 2022) (assessing the prima fame case in an

FHA action). Once the prima facie case is established, “the burden shift[s] to the defendant to articulate a

legitimate, non-discriminatory reason for the” challenged conduct. Reives, 29 F.4th at 891. [T]he burden

[then] shifts back to the plaintiff to submit evidence that the employer’s explanation is pretextual. Id.

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facilities in connection therewith, because of race, color, religion, sex, familial status, or national

origin.” 42 U.S.C. § 3604(b). For a disparate treatment claim, a “plaintiff must establish that the

defendant had a discriminatory intent or motive.” Texas Dep’t ofHous. & Cmty. Affs. v. Inclusive

Communities Project, Inc., 576 U.S. 519, 524-25 (2015) (quoting Ricci v. DeStefano, 557 U.S.

557, 577 (2009)).4

The Defendants argue that the Plaintiff cannot prevail on a § 3604 disparate treatment

claim based on race because she has no evidence of a discriminatory intent on behalf of any

Defendant—a required element of the claim. See Bloch v. Frischholz, 587 F.3d 771, 784 (7th

Cir. 2009). In her deposition, the Plaintiff testified that she did not like the way Naomi

Friedrichsen, Hunter Run’s Senior Community Manager, talked to her because of the tone of Ms.

Friedrichsen’s voice and because Ms. Friedrichsen treated the Plaintiff like the Plaintiff did not

know what she was talking about. However, there is nothing inherently race-based about the way

Ms. Friedrichsen talked to the Plaintiff nor is there evidence from which a reasonable jury could

infer such an intent from her tone. The Plaintiff testified that Ms. Friedrichsen never used the “N

word” or made any directly derogatory statements. Cf. East-Miller, 421 F.3d at 563 (recognizing

that racial slurs can create an inference of race discrimination). Without more, this evidence is

insufficient to create a genuine dispute of material fact regarding discriminatory intent.

The Plaintiff also fails to identify a similarly situated individual outside her class who

was treated more favorably. Such evidence could support her assertion of intentional

discrimination either when the evidence is viewed as a whole or as an element of the prima facie

4 In contrast, a disparate impact claim challenges “practices that have a ‘disproportionately adverse effect

on minorities’ and are otherwise not justified by a legitimate rationale.” Texas Dep't ofHous. & Cmty.

Affs. 576 U.S. at 524-25 (quoting Ricci, 557 U.S. at 577). “Disparate-impact analysis looks at the ettects

of policies, not one-off decisions, which are analyzed for disparate treatment.” City of Joliet v. New W.,

L.P., 825 F.3d 827, 830 (7th Cir. 2016). Here, there are no allegations or evidence that would support a

disparate impact claim.

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case under the McDonnell Douglas burden shifting method. Throughout her filings m this

litigation, the Plaintiff has alleged that Tawnya Seacott, a Caucasian tenant, was a similarly

situated individual outside of her class who was treated more favorably by the Defendants.5 The

Plaintiff alleges the Defendants allowed Ms. Seacott to have unauthorized occupants reside in

her apartment whereas the Defendants initiated eviction proceedings against the Plaintiff for

allegedly having unauthorized occupants living in her apartment. However, the Plaintiff has

offered no evidence in response to summary judgment to support these allegations.

The Plaintiff testified she has no personal knowledge that the Defendants knew

unauthorized occupants were allegedly living in Ms. Seacott’s apartment. And she has offered no

evidence that the Defendants knew of any such alleged unauthorized occupants. The Plaintiffs

testimony that Ms. Seacott assumed Hunter’s Run knew about alleged unauthorized occupants m

Ms. Seacott’s apartment is mere speculation insufficient to overcome summary judgment. In

contrast, the Defendants offer Ms. Seacott’s affidavit statements that “[a]t no point during the

Lease Term did anyone other than the Authorized Occupants reside in the Apartment” and that

she never advised either Sandra Black or any employee or agent of Hunter’s Run “that anyone

other than the Authorized Occupants resided in the Apartment.” Thus, the Plaintiff has not

offered evidence to show that any other individuals outside her protected class were treated more

favorably by the Defendants.

In her response brief, the Plaintiff contends that she has “overwhelming evidence against

the defendants[’] claim.” EOF No. 218, pp. 2-3. To the extent she is challenging the factual basis

of the state court eviction proceedings, which were initially based on her allegedly having

In her response brief, the Plaintiff asserts that there was another Caucasian tenant Usa Muers>whowas

“blind eye treatment” regarding various violations. ECF No. 218, pp. 3-4. However, the Plaintiff

given a

offers no evidence in support.

?£>

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unauthorized occupants in her apartment, the issue in this lawsuit is her allegations of

discrimination under the FHA and not the merits of the Defendants state court complaint for

eviction. The Plaintiff believes the Defendants filed the state court eviction complaint based on

her race. But as set forth above, she has not offered evidence of such discrimination or evidence

that would allow such an inference.

Because the Plaintiff has failed to identify evidence from which a reasonable inference of

race discrimination could be inferred, the Court grants summary judgment for the Defendants on

her § 3604(b) disparate treatment claim both when considering the evidence as a whole and

under the McDonnell Douglas burden shifting test.

Section 3617 Interference and Hostile Housing Environment Claims

Under the FHA, it is illegal “to coerce, intimidate, threaten, or interfere with any person

in the exercise or enjoyment of, or on account of his having exercised or enjoyed,. . . any right

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

plaintiff bringing a § 3617 claim must show “that (1) she is a protected individual under the

FHA, (2) she was 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 (citing East-Miller, 421 F.3d at 563). “[A] showing of

intentional discrimination is an essential element of a § 3617 claim. East-Miller, 421 F.3d at

563.

The Seventh Circuit has recognized a hostile housing environment cause of action under

the FHA. DiCenso v. Cisneros, 96 F.3d 1004, 1008 (7th Cir. 1996), cited in Bloch, 587 F.3d at

779, 783; Wetzel v. Glen St. Andrew Living Cmty., LLC, 901 F.3d 856, 861-62 (7th Cir. 2018).

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Courts have considered such a claim as brought under § 3604(b) and § 3617. See Watters v.

Homeowners' Ass ’n at the Pres, at Bridgewater, 48 F.4th 779, 786-88 (7th Cir. 2022); Wetzel,

901 F.3d at 861 \ Bloch, 587 F.3d at 783; Evans v. 210 E. Pearson Condo. Assoc., No. 21-CV3941, 2023 WL 2711613, at *3-4 (N.D. Ill. Mar. 30, 2013). !‘A hostile-housing-environment

claim requires a plaintiff to show that: (1) she endured unwelcome harassment based on a

protected characteristic; (2) the harassment was severe or pervasive enough to interfere with the

terms, conditions, or privileges of her residency, or in the provision of services or facilities; and

(3) that there is a basis for imputing liability to the defendant.” Wetzel, 901 F.3d at 861-62

(citing DiCenso, 96 F.3d at 1008). “Harassment is severe or pervasive if it objectively interferes

with the enjoyment of the premises or inhibits the privileges of rental. Id. at 862. To determine

whether the conduct is “severe or pervasive enough,” the Court looks to “the totality of the

circumstances, including the frequency of the discriminatory conduct, its severity, and whether it

is physically threatening or humiliating rather than merely offensive. Id. at 862.

As set forth in Part A above, the Plaintiff has not offered evidence from which an

inference of race discrimination could be made in relation to the Plaintiffs residency at Hunter’s

Run, including her allegations that she was harassed based on her race. Cf. Fair Housing Ctr. of

Cent. Ind, Inc. v. New, 577 F. Supp. 3d 908, 914-18, 925 (S.D. Ind. 2021) (finding that the

evidence, which included frequent racially hostile harassment by a neighbor, “could permit a

reasonable fact finder to conclude that a hostile housing environment based upon race and

national origin existed at Twin Creeks”). Thus, her claims under § 3617, including her hostile

housing environment claim, must fail.

The Plaintiff also has not offered evidence of “severe or pervasive” harassment. Based on

her deposition testimony, the events comprising the alleged harassment include that Ms.

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Friedrichsen talked to her like a child, the Defendants failed to fix her air conditioning unit in a

timely manner, Defendant Erika Holiday called the police on her for no reason, and she was

given a final warning for a pet violation with no intermediate warnings. Def. Ex. C-l, 240.1—

243:12. Even taking these allegations as true, which the evidence appears largely to contradict,

see p)ef, Exs. b, G, these incidents are neither frequent nor severe. Although having the police

called could be considered humiliating in a general sense, it was an isolated incident with no

evidence of race-based motivation. Cf. Watters, 48 F.4th at 787-88 (finding that a reasonable

factfinder could infer that being treated with racial disdain and hostility by the head of the HOA

and his wife, which included two uses of the N-word by one of them and the other using racially

hostile inuendo, “can directly affect how safe a family feels in their own home” and that the

repeated harassment undermined the plaintiffs’ “ability to enjoy the basic living conditions one

expects when they purchase a home.” (citing Bloch, 587 F.3d at 782)); Wetzel, 901 F.3d at 862

(finding, on a motion to dismiss, that the alleged harassment could “plausibly .. . be viewed as

both severe and pervasive” when “[f]or 15 months, she was bombarded with threats, slurs,

derisive comments about her family, taunts about a deadly massacre, physical violence, and

spit”); Small v. The Anchorage Homeowners Assoc., No. l:18-cv-1605, 2019 WL 1317636, at *8

(S.D. Ind. Mar. 21, 2019) (finding that “allegations [that] include religious slurs, threats of

violence, efforts to oust Plaintiffs from their residence, complaints to the police, efforts to

humiliate Plaintiffs in front of their friends and clients, and erecting a physical barrier that

adversely affected Plaintiffs’ enjoyment of their residence . . . cross the line”).

Accordingly, the Court grants summary judgment for the Defendants on the Plaintiffs

claims under § 3617.

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Constructive Eviction

“Deprivation of [the right to inhabit the premises] by making the premises uninhabitable

violates § 3604(b).” Bloch, 587 F.3d at 779. To show constructive eviction, a plaintiff “must

show her residence is ‘unfit for occupancy,’ often to the point that she is ‘compelled to leave.’”

Id. at 777 (quoting Black’s Law Dictionary 594 (8th ed. 2004)). “Availability, not simply

habitability, is the right that [is protected].” Id. at 777 (§ 3604(a)), 779 (§ 3604(b)).

Here, the Plaintiff has failed to submit evidence to create a genuine dispute of fact that

she was forced out of her apartment because of the Defendants’ racial discrimination. The

evidence demonstrates that the Plaintiff and the Defendants entered into a Joint Agreement that

allowed the Plaintiff to remain in her apartment for approximately 60 days with unauthorized

occupants residing in the apartment on the condition that she vacate the apartment by a date

certain. In other words, the Plaintiff voluntarily agreed to move out of her apartment. Earlier in

these proceedings, the Court denied the Defendants’ motion to dismiss this constructive eviction

claim, recognizing at that stage of the proceedings there was a question of fact whether the

Plaintiffs agreement was truly voluntary considering her allegations of harassment and of

Caucasian residents being treated more favorably. ECF No. 28, p. 29. Now, at the summary

judgment stage, the Plaintiff has failed to offer the evidence necessary to demonstrate intentional

discrimination or a hostile housing environment based on race that would support an inference

that her participation in the Joint Agreement was not voluntary based on that discrimination. The

Court grants summary judgment for the Defendants on the constructive eviction claim.

CONCLUSION

For the reasons set forth above, the Court hereby (1) DENIES the “Part 2 Jim Crow

Court: Motion for Judge Springmann to Disqualify or Remove Discriminatory, Bias and

5°

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Fraudulent Acts, See Citing IV” [ECF No. 230] and (2) GRANTS the Defendants’ Motion for

Summary Judgment [ECF No. 215].

The Court DIRECTS the Clerk of Court to enter judgment for the Defendants Naomi

Friedrich'sen, Erika Holiday (Liddick), Hunters Run Apartments and Owners, and Interstate

Realty Management Co. and against the Plaintiff Sandra Black.

SO ORDERED on September 6, 2023.

s/ Theresa L. Springmann___________

JUDGE THERESA L. SPRINGMANN

UNITED STATES DISTRICT COURT

CIRTIFliD

4fahoi4 TRUE

COPY

DEPUTY CLERK

USDC IN/ND case l:19-cv-00307-TLS

AO 450 (Rev. 01/09)

document 237

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Judgment in a Civil Action

United States District Court

for the

Northern District of Indiana

SANDRA BLACK

Plaintiff

Civil Action No. l:19-cv-307

NAOMI FRIEDRICHSEN,

ERIKA HOLIDAY

(Liddick),

HUNTERS RUN APARTMENTS AND OWNERS,

INTERSTATE REALTY MANAGEMENT CO,

MORRIS KELSEY

Terminated: 07/12/2019

Defendants

JUDGMENT IN A CIVIL ACTION

The court has ordered that {check one):

□ the Plaintiff(s),_____________ _

Defendant(s)_____________ ._____

amount of__________________ _

____________ recover from the

_______________________ damages in the

plus post-judgment interest at the rate of___ %

1~1 the plaintiff recover nothing, the action is dismissed on the merits, and the defendant-----recover costs from the plaintiff____________ :_________________•

X Other: Judgment is ENTERED in favor of defendants Naomi Friedrichsen, Erika Holiday

fLiddickh Hunters Run Apartments and Owners and Interstate Realty Management Co. and----against, plaintiff Sandra Black.___________ ______________ _________________ _______

This action was {check one):

CH tried to a jury with Judge______________________ ________________

presiding, and the jury has rendered a verdict.

□ tried by Judge_____:_____ ______________________ _____________

without a jury and the above decision was reached.

X decided by Judge Theresa L. Snringmann on a Motion for Summary Judgment.

^ Z>

USDC IN/ND case l:19-cv-00307-TLS

DATE:

September 7. 2023

document 237

filed 09/07/23

page 2 of 2

CHANDA J. BERTA, CLERK OF COURT

by.

s/N. Long

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[Originally Case No. 27D03-1705-SC-000517]

CASE NO. 27D03-1706-PL-000014

FILED

HUNTER'S RUN APARTMENTS LP,the Plaintiff

JUN i 4 2017

SANDRA A. BLACK, the Defendant

% CLERKGSC3(H

•

Denial of Motion for Preliminary Order of Possession

The Court denies the Rule to Show Cause sought by the Plaintiff, Hunter's Run Apartments LP

("Landlorc"), against the Defendant, Sandra A. Black ("Tenant"). Based upon the evidence

presented at the June 8, 2017, preliminary hearing, the Court enters this preliminary finding

that there! is a reasonable probability Tenant is entitled to the continued possession, use and

enjoyment of her apartment, which is known as 655 E Hunter's Run Dr; Marion IN 46953 ("the

Apartment"). [See Ind. Code § 32-30-3-5.] The Court makes the following additional preliminary

findings to assist Landlord and Tenant ("the Parties"):

On May 23, 2017, Landlord filed its Complaint for Possession of Real Property and Past

Due Rent ("the Original Complaint") as a small claims proceeding in Case No.

27D03-1705-SC-000517 ("the Small Claims Case"). Landlord alleged it was entitled to

possession of the Apartment for the following reason :

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Violation of Lease Agreement - allowing unauthorized occupants to live

at apartment.

No other basis for the eviction proceeding was alleged.

On May 31, 2017, Tenant filed her Request for Recusal, which was denied on June 1,

2017. In doing so the Court relies upon the Indiana Commission on Judicial Qualifications'

Advisory Opinion #3-07, which dealt with the issue of:

i whether a judge should disqualify from a case involving a litigant who files a

I disciplinary complaint or a lawsuit against the judge or who publicly criticizes or

I attacks the judge through fliers, websites, blogs, or other written material.

The Court is aware that Tenant has been and remains very unhappy with decisions the

Count made in the past concerning Tenant's mother. Tenant has exercised her 1st

Amendment right to publically criticize the Judge. Because the Court has no actual bias

against Tenant and the Court does not believe a factual basis exists for a conclusion that

the Court acted inappropriately in other matters involving Tenant, recusal in this case

would be improper. Quoting from Advisory Opinion #3-07:

June 14, 2017, Revision

Page ! of 8

. hunters run and black preliminary order

(T)he issue is whether an objective person, knowledgeable of all the

circumstances, would have a reasonable basis for doubting the judge's

impartiality. Unless disqualification is required, Canon 3B(1) of the Code of

Judicial Conduct requires a judge to hear and decide all assigned cases.

Neither Tenant nor Landlord filed for a change of venue from the judge pursuant to Ind.

Trial Rule 76(B).

•

On May 31, 2017, Tenant also filed her Request for Trial by Jury. She was served on

May 25, 2017, with her copy of the Original Complaint, so her request was filed in a

timely manner. Oh June 1, 2017, the Court entered the following Chronological Case

Summary ("CCS") entry:

(Tenant) has timely filed her dernand for trial by jury. Ind. Small Claims Rule

4(C) provides: "Request for Jury Trial.... (A) defendant may request a jury trial

by submitting a written request to the court within ten (10) days after receipt

of the notice of ciaim. No statement of facts supporting the request or

verification of the request is required. The party requesting a jury trial shall

pay the clerk the additional amount required by statute to transfer the claim

to the plenary docket ,V.. Once a jury trial request has been granted, it may

not be withdrawn without the consent of the other party or parties." The

Sheriff's return of service indicates (Tenant) was served with the notice of

claim on May 25, 2017. (Tenant) has 10 days from that date to pay the

additional fee to transfer the case to the plenary docket. If she fails to do so,

her request for trial by jury will be denied.

Tenant paid the $70 fee and the case was transferred to the Court's plenary docket and

assigned Case No. 27D03-1706-PL-000014 on June 5, 2017. This means the Parties must

comply with the Indiana Rules of Trial Procedure and will no longer be permitted to

proceed under Ind. Small Claims Rule 8(A), which states:'.....

Procedure. The trial shall be informal, with the sole objective of dispensing

speedy justice between the parties according to the rules of substantive law,

and shall not be bound by the statutory provisions or rules of practice,

procedure, pleadings or evidence except provisions relating to privileged

communications and offers of compromise.

Because this case is now on the Court's plenary docket, the trial will be formal. It will be

done according to statutory provisions and the Ind. Trial Rules. The Parties must properly

plead their case(s) and fully comply with the Ind. Evidence Rules.

The June 1, 2017 CCS entry also included the following:

The jury trial demand does not divest the Court of the jurisdiction to enter a

preliminary order of possession, if (Landlord) presents facts supporting such

an order. Therefore the hearing set for Thursday, June 8, 2017, at 9:15 a.m.

will be held.

June 14, 2017, Revision

Page 2 of 8

hunters run and black preliminary order

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the .Coiirt, not a jury, is:tb hear and decide matters involving requests for pre-judgment

orders of possession. Bishop v. Hous. Aut df S. Bend, 920 N.E.2d 772 (Ind. Ct. App. 2010)

dealtwiththis issuesaying::

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l We read the Indiana ejection statute to preserve Bishop's right to a jury trial 1 on the ultimate outcome, i.e., the merits of HASB's claim that it is entitled to

possession based upon her breach of an express term of the lease. ... ..

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' Similarly, Indiana's ejectment statute provides for a pre-judgment possession

{ hearing to allow the defendant to controvert plaintiff s affidavit "or to show

j cause why the judge should not remove the tenant from the property and put

- I the plaintiff |h possession " I.C. §32-30-3-2;.see'alsoCunningham v.

j Georgetown Homes, lnc.j:708 N.E;2d 623; 627 (Ind. Ct. App. 1999). The

I statutory hearing manifests the inherent power of trial courts to intercede at

' an early stage-to make a preliminary decision before what could thereafter

be a lengthy judicial process. Before issuance of a preliminary decision, the

defendant/tenant is given the £kbres£ opportunity to dispute the landlord's

claim for immediate possession.Moreover, this preliminary possession

decision triggers the requirement that the plaintiff/landlord file "a surety...

in an amount sufficient to assure the payment of any damages the defendant

may suffer if the court wrongfu|ly.0rdered preliminary possession to the

landlord. I.C. § 32-303-6. The preliminary possession decision is also subject to

further proceedings to reach an ultimate determination - the "final judgment"

that "supersedes" the "prejudgment order for possession."l.C. § 32-30-3-12.

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;!v The Indiana statute merely Allows the trial court to make a preliminary

decision as to the right to immediate possession of the property. It preserves

Bishop's right to a trial by jury on the ultimate Issue as to whether she should

beejected from the property. We find that there is no constitutional right to a

jury trial at the preliminary possession hearing in an ejectment proceeding.

Therefore, Bishop has failed [*780] to persuade Us that the ejectment statute

violated her right to a jury trial pursuant to the Indiana constitution. Wallace,

7':: Gii/^

: 905 N.E.2d at 378.;

Even though the Court has entered this preliminary decision that Tenant is entitled to

remain in possession of the Apartmeht, the jury is free to conclude that Tenant must give

Up possession of the Apartment when it makes the ultimate decision in this case.

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; On May 31, 2017> Tenant also filed her Response to Complaint and Counterclaim ("the

First Answer and Counterclaim"). On June 1, 2017, by CCS entry the Court struck Tenant's

First Answer and Counterclaim saying:

(Tenant's) May 31, 2017, Response to Complaint and Counterclaim does not

comply with the requirements that all pleadings be clear and concise. It is

stricken from this case. (Tenant) is also granted until June 8, 2017, to file an

June 14, 2017, Revision :

Page 3 of 8

;•

hunters run and black preliminary order

%%■

amended pleading that complies with the rules so that she might proceed on

her counterclaim.

See also Zavodnik v. Irene Harper, 17 N.E.3d 259 (Ind. 2014).

At the June 8, 2017, preliminary hearing, the Court provided the parties with portions of

T.R. 8, including the requirement that a pleading must contain, "(A) (1) a short and plain

statement of the claim showing that the pleader is entitled to relief' and "(E)(1) (e)ach

averment of a pleading shall be simple, concise, and direct".

Even though the First Answer and Counterclaim was stricken, the Court considers it to be

a general denial of the allegations made by Landlord.

On June 2, 2017, Landlord filed its Amended Complaint for Possession of Real Property

and Past Due Rent ("the Amended Complaint"). It differed from the Original Complaint by

increasingthe alleged violations of the lease to be:

(A)llowing unauthorized occupants to live at apartment. Violation of Lease paragraph 32, Automobiles and Parking Areas; and Resident Responsibilities.

On June 7, 2017, Tenant filed her Response to Amended Complaint.

The following are only preliminary findings. The jury may find otherwise.

"The 'Section 421 Lease Agreement" ("the lease") is between Tenant and her son,

Kemuel Shem ("Mr. Shem"), and Landlord, it provides that Tenant may occupy the

Apartment along with Mr. Shem and with Tenant's grandchildren]^ Chrisdeon

Ogunbuyide, Victoria Goree and Christian Goree. Landlord did not prove that

Tenant's adult daughter and Mr. Shem's wife, Jaycee Shem, were also occupying the

Apartment in violation of the Lease. This is a 3 bedroom apartment, which may have

no more than 6 people living in it. The Court finds that Landlord did not prove that

other persons occupied the Apartment than were permitted by Paragraph 4 and 5

ofthe Lease

The Court notes that Mr. Shem has been living in Bloomington, where he works and

is attending Indiana University off and on. It is now his home. His wife is from

Bloomington and testified that so far this year she and Mr. Shem only spent about 3

or 4 overnights at the Apartment. Mr. Shem testified that someone from Section 8

told him that he only needed, to stay overnight 10 nights per year at the Apartment

to be considered an occupant of the apartment. The Court finds that this is not

correct. Mr. Shem is not an occupant of the Apartment. If he were, he had a duty to

report his Bloomington income, which he has not. The Court finds that Mr. Shem

and/or Tenant had a duty to properly notify Landlord that Mr. Shem was not living

in the Apartment, but neither did so. The Lease requires Tenant to recertify the

financial information and occupancy at least annually. Landlord's Exhibit 11 shows

this was last done on August 11, 2016, for the recertification due on November 23,

2016. Landlord has the right to require more frequent recertifications, but has not

June 14,2017, Revision

Page 4 of 8

hunters run and black preliminary order

done so in this case. Landlord's Exhibit 9 is the Rules and Regulations Handbook

("the Handbook"), which includes a provision requiring Tenant to "notify (Landlord)

of any changes in the number of residents in the household or addition of pets.

Failure to do so will be considered a lease violation." It is unclear how the provisions

in the Handbook affect the annual recertification requirement of the Lease. The

Court notes that Paragraph 6 of the Lease indicates that Mr. Shem will likely have

his Lease with Landlord terminated on or about November 23, 2017, at the latest.

Tenant is a strong willed person. She keeps the Apartment clean and requires her

, family members and guests to follow her rules. Tenant is a black person and is very

j vocal when she is not treated as she believes she should be. When white people

treat her differently than she believes is appropriate, she often attributes this to

racism. The Court finds no evidence of racism directed toward Tenant by Landlord

nor by Landlord's staff members, but does find evidence of racism by Tenant

directed toward Landlord and Landlord's staff members. However, the Court notes

the Tenant's and Mr. Shem's racist Facebook posts shown in Landlord's Exhibit 10

were made after Landlord filed suit against Tenant, which Tenant believed was

| racially motivated. She was responding, inappropriately, to Landlord's efforts to

i evict her.

Tenant placed a sign in one of her windows that was visible to others in Hunters Run

that advertized Tenant's belief that her mother was being treated as a slave. On

February 22, 2016, Landlord issued Landlord's Exhibit 4, which was a written,

"potential lease violation" notice to Tenant directing her to remove the sign, which

clearly violated Paragraph 20 of the Lease. It also did not comply with the directive

in the Handbook, "to encourage a positive environment for (residents) and their

neighbors". The sign wasn't removed until shortly after Landlord issued Landlord's

Exhibit 4 on March 7, 2016.

Tenant acknowledged that she was aware that no signs could be posted, but did so

anyway. What she posted is no different than someone displaying a sign advertising

or in support of the Ku Klux Klan. Both are prohibited by Paragraph 20 of the Lease

and by the Handbook.

Landlord could have taken steps to evict tenant when the sign was posted, but did

not do so until the Amended Complaint was filed, more than a year after the

! violation was committed. The Court finds that the sign violation is too remote in

time to be relevant in an action to evict Tenant now.

Landlord's property manager, Naomi Friedricksen ("the Property Manager"), has a

Facebook account and testified that she uses it to post information multiple times a

day about Hunters Run activities and vacancies. It is widely known that her personal

Facebook account is used for business purposes. Beginning June 27, 2017, Tenant,

using the pseudonym "Ezzrath Baht Shem", "tagged" the Property Manager's

. Facebook account and began posting hateful comments that violated the

June 14, 2017, Revision

Page 5 of 8

hunters run and black preliminary order

Handbook's requirement to "encourage a positive environment for (residents) and

their neighbors". The comments were posted after Landlord filed suit to evict

Tenant. The comments shown in (4), below, were made by Mr. Shem:

(1).

I just realized!!! When dealing with a ruthless evi! woman who is ALSO racist

her dumb ass automatically ASSUMES making one pay from a black person is

going to be a criminal act.

Hell NO! I AM GOING TO SUE THE HOLY SHIT OUT OF YOUR ASS PERSONALLY!

EVERYTHING YOU OWN IS ALREADY MINE!!!

WATCH!!!

YOU CAN'T LIE TO GET RID OF BLACKS UP OUT OF HUNTERS RUN AND YOU

GOT THE RIGHT ONE NOW BABY GIRL.

(2).

I was just cooking pancakes for my babies and that fools mind popped in mine

.. .dam, she'll be calling the police that I am going.to do a criminal act, LIKE

ALL BLACKS.

But noway... her lies are going to UTTERLY DESTROY all she owns is already

GONE in etheric reality.

MINE, by court order!

(3)

I don't want her money or her assets. I'm going to make an example out of this

evil wickednes she thinks she has white privilege, let"s find out just how FAR

it's going to get her.

(4)

The following was posted by Mr. Shem:

(a)

In those lost hours dealing with upidy. crackers.

(b)

Tired of all the dam hunkys around here.

(5)

this racist BITCH is evicting me LYING saying I got several people living in my

house. DAM N I can't get several people to even come to meetings.

(6)

This evil bitch that works here at Hunters Run been lying on me since this fall

because she feels 1 am an upitty nigger for asking her to fix my air conditioning

unit. I was suffering like hell most of the summer for two months. 1 have it in

writing where I am telling her that I am suffering. She writes back that it's a

SLIGHT inconvenience. But others are in are a priority as they have no air.

My unit didn't shut off so I had to MANUALLY shut off at the box. FREEZING

THEN BOILING all summer for two months. So I ask her if I may go yo district

after two months and she couldn't fix it. After that it was fixed the VERY NEXT

DAY. She been lying on me every since.

June 14,2017, Revision

Page 6 of 8

hunters run andblack preliminary order

Even so bad that the guy from the air-conditioning vendor said that the office

people are all against me because I am a trouble maker.

j Landlord's Exhibit 2 is a. letter dated November 30, 2015, claiming Tenant had an

| "aggressive breed" dog in the Apartment. Tenant was given 30 days to vacate the

Apartment or remove the dog from the Apartment or provide proof that the dog

was not an aggressive breed.

When Tenant first rented the Apartment, Landlord was aware that she had a dog

that weighed more than 50 pounds. Since then Landlord has indicated that pets

may not exceed 25 pounds. Since Landlord rented the Apartment to Tenant with

knowledge of the size of the dog, Landlord may not use that as a basis to evict

tenant. No evidence was offered to prove the dog was an aggressive breed.

Landlord's Exhibit 6 is a "FINAL WARNING" letter to Tenant, saying:

It has been reported to us by surrounding neighbors that you are .

allowing your dog to relieve itself on the Hunter's Run sidewalk and

landscaping areas and not cleaning up after it.

Landlord submitted this exhibit even though Tenant's Exhibit E is a copy of the same

letter with the following handwritten note by Erika Holliday ("Assistant Property

Manager"):

please disregard, removed from file. Erika Holliday

Landlord's attorney did not offer any explanation as to why Landlord's Exhibit 2 was

offered. Landlord's Exhibit 2 is misleading. The Court finds that Landlord's attorney

j was candid with the Court when he offered Landlord's Exhibit 2, because there is no

' evidence that he was aware of the handwritten note. It is entirely possible that he

| was not given a copy of Landlord's Exhibit 2 with the note from the Assistant

Property Manager.

Landlord's Exhibit 8 is another written "Lease Violation-unauthorized occupants-30

day notice to vacate". As mentioned above, Landlord failed to prove, that

J unauthorized permanent occupants were staying at the Apartment. The letter also

claimed that the Property Manager saw a burgundy colored Camero driving

recklessly in and out of the parking lot. Tenant was required to vacate the

Apartment by May 20,2017, at 4:00 p.m. Since Landlord did not enforce the 30 day

! notice and did not prove unauthorized permanent occupants were at the

Apartment, the reckless driving complaint is too remote in time to be used in this

preliminary eviction case.

Landlord's Exhibit 5 was dated May 26, 2016, and Landlord's Exhibit 7 was dated

| December 5, 2016. Both dealt with damaged blinds. Tenant acknowledged that her

grandchildren or. dog caused damage to the blinds and repaired or replaced them.

June 14, 2017, Revision

Page 7 of 8

hunters run and black preliminary order

This :is a common maintenance issue for this and Other apartment complexes .ahdl i's.

not a basis to evict Tenant.

During the summer of 20i6 Tenant's air conditioning unit'did ..riot Work properly and

Was no:t promptly repaired. The Handbook indicates it is Landlord's feSpo n si bility to

maintain the Apartment's HVAC unit and encourages tenants to call the 24-hOur

. maintenance emergency number if the A/Csystem fails during harsh seasons.

Tenant reported that her A/C until wasn't working properly. Landlord reported that

it-is difficult to repair Hunters Run HVAC units, which are 16 years old. Tenant's

system had a bad computer board and it took time to get one. When one arrived, it

too was faulty, jt took approximately 2 weeks to make the A/Csystem work, but the

thermostat did not work and it took about 2 months to fix that: During this time the

A/C system had to b'e manually turned on 'and off, so Tenant complained that the

temperature was freezing or too hot.

Landlord was dealing with other malfunctioning units and performed triage. In the;

summer heat some apartments had no A/G They were given priorTty o ver Tenant-s

apartment, which had a manually controlled A/C system. Tenant became more and

more frustrated with this situation. The. Parties' relationship soured considerably.

Tenant went so far as to go to the office to personally serve the Assistant Property

Manager with documents and have her grandson record the video and sound on.a

smartphone. The Assistant Property Manager felt threatened and said she Would

nOt.permit herself to be.recorded and locked herself in her office. Tenant remained

outside the inner office and spoke, loudly, firmly, but without any profa n ity To

explain what .she was delivering to Landlord.

Tenant is perceived by Landlord to be a problem tenant. Tenahtcan be difficult to

work with, but we have the right to have different political beliefs and views. She

may exercise, her 1st Amendment nights to speak out against the injustices she

perceives, including speaking out against the undersigned. So long as her conduct is

not criminal or a material violation of the Lease, she is entitled to remain in her

Apartment.The Court is unsure what might constitute a material Violation, but

suggests that Tenant would be Wise not to post ot have posts made like those

shown ip "Paragraph 8.D. about Landlord and/or Landlord's employees.

An unused truck was parked outside the Apartment-. It was in violation of the

Hand book, However, Landlord typically would "tag" the vehjcle and have it towed, if

the tenant did not do so. Landlord did neither and may not use this tp evjct Tenant.

The Court denies Landlord's request fore prejudgment-0.rd.er of possession. At this point, no

proper counterclaim has been filed. If neither Party files a plead ing req u estiri^ttiith eE(5Mlg® COPY TRUE

action, this case may be dismissed oh or after August 18, 2017, pursuant to T^gAljt-f? C°^fTE

APR 03 2024

Signed on June: 14, 2017, fry:

Warren Haas, Judge of Grant Superior Court 3

June 14,2017, Revision

Page 8 of 8

hunters run

CLERK OF GRANrCOUNTY

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STATE OF INDIANA.

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IN THE GRANT SUPERIOR COURT S

[Originally Case No, 27.O03470S-SC-0OQ'517]

CASE NO, 27D03-1706-PL-000014

FILED

HUNTER'S RUN APARTMENTS LP, the Plaintiff

$£p o i mi

SANDRA A. BLACK, the Defendant

CLERkGSCSC/

partial of Sandra Blades Motion to Proceed on Appeal In Forma Pauperis

The Court defies Sandra Black's ('Tenant's'') August 34,. 2017 Motion to Proceed On Appeal in

Form a Pauperis, The Court has not yet entered a final order in this case. 'Until now, the .Court

had not been asked to .grant.permission to Tenant to file an interlocutory appeal.

The tenant's August 22, 2017 35 page submission to the Indiana Court of Appea ls bearing the

title. Notice of Appeal Against Order to Deny Dismissal does not contain a basis for Tena nt to

file an interlocutory appeal of right under Ind. Appellate Rule 14(A).

The Coyft declines to aufhofize Tenant to file an interlocutory appeal under App. R. 14(B).

Tenant's request to proceed in forma pauperis is also dented. (See Zavodnik v. H&rpert

17 N,E,3d 259 (Ind. 2014).]

.Sighed on September 1, 2017, by:

Warren Haas, Judge of Grant Superior Court 3

101 E.4th St Ste 303

Marion’IN 46952-405S

Pfaoftev 765.663,8123

Fax:

765.668,4718

OFFICIAL CERTIFIED COPY TRUE

AND COMPLETE

OB.

PAGE

APR 03 2024

CLERK OR DEPUTY

OAAOJ

CLERK OF GRAN-flCOUNTY

•September 1, 2017, Revision

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USDC IN/ND case l:19-cv-00307-TLS document 28 filed 03/11/20 page 1 of 32

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

FORT WAYNE DIVISION

SANDRA BLACK,

Plaintiff,

NAOMI FRIEDRICHSEN,

ERIKA HOLLIDAY (LIDDICK),

HUNTERS RUN APARTMENTS

AND OWNERS, and INTERSTATE REALTY

MANAGEMENT CO.,

Defendants.

)

Case No. l:19-CV-307

OPINION AND ORDER

This matter is before the Court on the motion to dismiss filed by Defendants Hunters Run

Apartments, LLP, and Erika Holliday1 on October 30, 2019. Motion to Dismiss (ECF 14);

Memorandum in Support (ECF 15). Plaintiff Sandra Black filed a response in opposition to the

motion on November 18, 2019. “Plaintiffs Response and Motion to Deny Defendants’ Motion to

Dismiss” (ECF 17).2 The Defendants filed a reply brief on November 22, 2019. Reply Brief (ECF

19). Also on November 22, Black filed a document she titled “Added Clarification of Existing

Statements of Claim” (ECF 20). For the reasons set forth below, the motion to dismiss (ECF 14)

is DENIED. The Court also directs the U.S. Marshal to endeavor to serve Defendant Naomi

1 The Defendants note that Plaintiff misspelled Defendant Holliday’s name as “Holiday.”

Defendants’ Memorandum, p. 1. Accordingly, the Court uses the former spelling in this order.

2 Also on November 18, Black filed a pleading she titled “Motion to Deny Defendants’

Motion to Dismiss (ECF 18). This is not a motion at all, but rather a superfluous request that the

Court deny Defendants’ motion. The pleading adds nothing in the way of argument (and the

Defendants, for that reason, have not filed a response to it). Accordingly, the Clerk of the Court

is instructed to amend the docket to indicate that Plaintiffs filing at ECF 18 is “Plaintiffs

Additional Response to Defendants’ Motion to Dismiss.”

USDC IN/ND case l:19-cv-00307-TLS document 28 filed 03/11/20 page 2 of 32

Friedrichsen with a copy of the summons, a copy of Black’s Complaint, and a copy of this Order

within 60 days from the date of this Order. The Court directs counsel for Defendants Michaels

Management-Affordable LLC, f/k/a Interstate Realty Management Company and Erika Holliday

to file a notice or brief with the Court, within 14 days from the date of this Order, addressing the

matter of the appearance filed by Michaels Management, as set forth in the Conclusion below.

BACKGROUND

Sandra Black filed a Complaint against the Defendants in this Court on May 20, 2019, in

case number 1:19-CV-222. On May 24, 2019, the Court dismissed that case for lack of subjectmatter jurisdiction. On June 12, 2019, Black filed a motion for reconsideration. The Court denied

that motion, also, hut determined that Black’s motion for reconsideration was actually a new

Complaint alleging discrimination under the Fair Housing Act, 42 U.S.C. § 3601 etseq., a cause

of action she had not asserted in her first case. Accordingly, the Court entered an order on July

10, 2019, instructing the Clerk of the Court to docket the new Complaint (and Black’s

accompanying application to proceed in forma pauperis) as a new case. On July 12, 2019, the

Court entered an order granting Black’s motion to proceed ifp and directing the U.S. Marshals

Service to serve summonses and copies of the Complaint on the Defendants. Court Order (ECF

3).

Black and her adult son entered into a lease agreement -with Defendant Hunter’s Run

Apartments on November 23, 2015. Black alleges in her Complaint that the Defendants

discriminated against her on the basis of her race, African-American, by falsely accusing her of

numerous lease violations over the course of several years in an attempt to force her to vacate the

apartment she rented from the Defendants in Marion, Indiana. Complaint (ECF 1). Black insists

USDC IN/ND case l:19-cv-00307-TLS document 28 filed 03/11/20 page 3 of 32

that the Defendants brought an unfounded eviction proceeding against her in state court. Id.

Black asserts that the Defendants harassed her by accusing her of numerous lease violations and

that white residents of Hunters Run Apartments were treated more favorably. She contends that

“[b]oth I and [a] Hispanic woman and several other blacks were all targeted for wrongful

removal and no longer live there. To my knowledge no whites are removed wrongfully. Good

white tenants are never wrongly evicted, but good black tenants are evicted. Whites are allowed

privileges that blacks are not allowed.” Id., p. 2.

Sandra Black’s dispute with the Defendants has been ongoing for several years and has

involved proceedings in state court, the Indiana Civil Rights Commission, and now this federal

court. The legal battle between the parties began in 2017 in state court when Hunter’s Run

Apartments “filed a Complaint for ‘Possession of Real Property and Past Due Rent’ in the Grant

County Superior Court of Indiana, Small Claims Division, Case No. 27D03-1705-SC-000517.”

Id., Defendants’ Memorandum in Support of Motion to Dismiss (ECF 15), pp. 1-2. The

Defendants state that “Hunter’s Run brought forth its Complaint alleging it was entitled to

possession of the Property because Plaintiff allowed unauthorized occupants to live at the

Property in violation of the Lease Agreement entered into by the Parties.” Id., p. 2. Black

responded to that eviction proceeding by filing “a Request for Trial by Jury, transferring the

matter to the Grant County Superior Court’s plenary docket and invoking the Indiana Rules of

Trial Procedure.” Id., p. 2. “On .Tune 8, 2017 ... the Grant County Superior Court held a

preliminary possession hearing and on June 14, 2017, the . .. Court entered an order denying

Hunter’s Run’s Request for a Prejudgment Order of Possession.” Id. Black then filed “a Request

for Emergency Order to Allow Additional Occupants to the Household^]” Id., p. 3. “On August

USDC IN/ND case l:19-cv-00307-TLS document 28 filed 03/11/20 page 4 of 32

2, 2017, Hunter’s Run filed a Joint Agreement of Parties which allowed Plaintiff and

unauthorized occupants to reside at the Property until September 15, 2017, in exchange for

Plaintiff agreeing to turn in keys and vacate the Property on or before September 15, 2017.” Id.

(citing Defendants’ Exhibit F, Joint Agreement (ECF 15-6); Grant County Court Order Granting

Joint Agreement (ECF 15-7)).

Meanwhile, as the Grant County eviction case played out, Black “filed a Complaint with

the Indiana Civil Rights Commission (‘ICRC’) against Hunter’s Run Apartments, alleging

discrimination on the basis of race in violation of the Indiana Civil Rights law, the Indiana Fair

Housing Act. . . and Title VII of the Civil Rights Act of 1968 (42 U.S.C. § 3601 etseq. [the Fair

Housing Act]).” Id. (citing Defendants’ Exhibit I, (ECF 15-9)). Black filed her ICRC claim on

May 26, 2017. Id. The Defendants note that “[o]n January 2, 2018, the ICRC issued a Notice of

Finding that no probable cause existed and Plaintiffs Complaint was dismissed. ... On March

26, 2018, the full ICRC adopted the Finding and [Black’s] Complaint was dismissed with

prejudice with no further right to appeal.” Id., p. 4 (citing Defendants’ Exhibit K, Finding of

ICRC (ECF 15-11)). Following the adverse finding by the ICRC, Black turned to this Court to

continue to seek relief for what she insists were racially motivated violations of the Fair Housing

Act.

In lieu of an Answer to Black’s Complaint, Defendants Erika Holliday (Liddick) and

Hunter’s Run Apartments LP filed their motion to dismiss, arguing that Black’s Complaint must

be dismissed because it was filed beyond the applicable statute of limitations and because it fails

to state a claim. Defendants’ Memorandum, generally. Defendants Naomi Friedrichsen and

Interstate Realty Management Company did not join in the motion, file answers, or otherwise

loo

USDC IN/ND case l:19-cv-00307-TLS document 28 filed 03/11/20 page 5 of 32

respond to Black’s Complaint. Counsel for Holliday and Hunter’s Run, in their motion to

dismiss, insist that Friedrichsen and Interstate Realty were never served with summons in this

case, that the time for doing so under Federal Rule 4 has passed, and that Friedrichsen and

Interstate Realty should be dismissed from the case for that reason. In their memorandum in

support of their motion to dismiss, Defendants Holliday and Hunter’s Run state that “[t]o date,

under information and belief, Michaels Management-Affordable LLC f/k/a Interstate Realty

Management Company and Naomi Friedrichsen have not been served a copy of the summons

and complaint in [this case]. ... It has been over 90 days since Plaintiffs New Complaint was

filed. Thus, pursuant to FRCP 4(m) Michaels Management-Affordable LLC f/k/a Interstate

Realty Management Company and Naomi Friedrichsen must be dismissed from the action.”

Defendants’ Memorandum (ECF 15), p. 5.

The Defendants, or more specifically the movants-Holliday and Hunter’s Run-argue in

their motion that Black’s claims should be dismissed because 1) they are barred by the applicable

2-year statute of limitations, and 2) Black’s FHA claim fails as a matter of law because she

cannot show that she was constructively evicted. The Defendants argue that “Plaintiff entered

into an agreement, one she proposed, with Hunter’s Run wherein Hunter’s Run agreed to make

an exception to its guest policy by allowing unauthorized occupants to reside at the Property until

September 15, 2017 (later extended to September 21, 2017) in exchange for Plaintiff agreeing to

vacate the Property by said date. . . . This Joint Agreement negates Plaintiff s contention that she

was constructively evicted as Plaintiff voluntarily offered to move out of the Property in

exchange for Hunter’s Run permitting her to violate its guest policy under the Lease.” Id., pp. 8-

■

lOL

USDC IN/ND case l:19-cv-00307-TLS document 28 filed 03/11/20 page 32 of 32

2) Counsel for Defendants Holliday and Michaels Management-Affordable LLC f/k/a Interstate

Realty Management Company are directed to file a notice or brief with the Court within 14 days

from the date of this Order notifying the Court as to their position that Interstate Realty has not

been served with process, and should therefore be dismissed from this case, despite the entry of

an appearance by that Defendant’s successor-in-interest, Michaels Management-Affordable LLC

or, in the alternative, why Michaels Management-Affordable should not be substituted for

Interstate Realty as a Defendant in this case or, in the alternative, whether counsel will accept

service or waive service for the proper defendant (and, for that matter, whether they will accept

or waive service on behalf of Defendant Naomi Friedrichsen). Plaintiff Sandra Black shall not

file a responsive pleading to any notice or brief submitted by Defendants.

Date: March 11, 2020.

/s/ William C. Lee

William C. Lee, Judge

U.S. District Court

Northern District of Indiana

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USDC IN/ND case l:19-cv-00307-WCL-SLC document 80 filed 01/19/21 page 1 of 25

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

FORT WAYNE DIVISION

SANDRA BLACK,

Plaintiff,

NAOMI FRIEDRICHSEN, et aL,

Defendants.

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Case No. l:19-cv-00307-WCL-SLC

OPINON AND ORDER

Before the Court is a motion to compel filed by pro se Plaintiff, seeking to compel

Defendants to more fully respond to her requests for admissions and requests for production and

asking that sanctions be imposed against Defendants. (ECF 69). On November 2, 2020,

Defendants filed a response to Plaintiffs motion (ECF 71) and a separate motion to compel,

together with a supporting memorandum, seeking to compel Plaintiff to appear for her deposition

(ECF 72, 73). On November 9, 2020, Plaintiff filed a “reply” (ECF 75) to Defendants’ motion to

compel, in which she responded to Defendants’ response to her motion (ECF 71) as well as to

Defendants’ motion to compel (ECF 72). No party filed any subsequent response or reply to

either motion and their time to do so has-now passed. See N.D. Ind. L.R. 7-1 (d)(3).

Accordingly, the Court considers both matters fully briefed and ripe for resolution. For the

following reasons, Plaintiff s' motion (ECF 69) is DENIED, and Defendants’ motion (ECF 72) is

GRANTED. i

1 While the Court previously stated that it would set a telephonic hearing on Plaintiffs motion to compel (See'ECF

70), after reviewing the parties’ filings and arguments the Court no longer believes a hearing is necessary.

{05*

USDG IN/ND case l:19-cv-00307-WCL-SLC document 80 filed 01/19/21 page 2 of 25

A. Background

Plaintiff initiated this matter on July 10, 2019, asserting that Defendants discriminated

against her on account of her race in violation of the Fair Housing Act (“FHA”), 42 U.S.C. §

3601 etseq. (ECF 1 at2).2 Plaintiff “alleges in her Complaint that Defendants discriminated

against her on the basis of her race, African-American, by falsely accusing her of numerous lease

violations over the course of several years in an attempt to force her to vacate the apartment she

rented from Defendants in Marion, Indiana.” (ECF 28 at 2 (citing ECF 1)). In particular,

Plaintiff asserts that Defendants instigated an undue state-court eviction proceeding against her

in Grant County Superior Court of Indiana, Small Claims Division, Case No. 27D03-1705-SC000517,3 on the grounds that Plaintiff allowed unauthorized guests—her grandchildren—to live

in the apartment in violation of her lease. (ECF 1 at 2; ECF 15-1). The parties eventually agreed

to allow Plaintiff to remain in the apartment temporarily in exchange for Plaintiff vacating the

property by September 21, 2017. (ECF 15-6, 15-7). Accordingly, the state action was

dismissed. (ECF 15-8). Plaintiff then filed a complaint of discrimination against Defendants

before the Indiana Civil Rights Commission, which subsequently found no reasonable cause-to

believe that Defendants violated the FHA. (ECF 15-9, 15-10).

2 Plaintiff initially filed a complaint against Defendants in case number 1: 19-cv-222. District Judge William Lee

dismissed that case for lack of subject-matter jurisdiction. (1:19-cv-222, ECF 3). In a motion to reconsider,

Plaintiff raised foi' the first time a potential FHA violation, invoking this Court’s federal question jurisdiction. (1:19cv-222, ECF 5). Accordingly, Judge Lee directed the clerk to file Plaintiffs motion to reconsider as a new

complaint in this matter. (l:19-cv-222, ECF 6).

3 Per the Defendants’ first motion to dismiss and supporting memorandum, Defendant Hunters Run Apartments and

Owners (“Hunters Run”) initially filed a Complaint for Possession of Real Property and Past Due Rent in the Grant

County Superior Court of Indiana, Small Claims Division, under case number 27D03-1705-SC-000517. (ECF 15 at

2). Following Plaintiffs request for a jury trial, the matter was transferred to the Grant County Superior Court’s

plenary docket and Hunters Run filed an'amended complaint under case number 27D03-1706-PL-000014. (Id. at 2).

For ease of reference, the Court will refer the state court proceedings under each case number as the “Grant County

case.”

Lois?

I '

USDC 1N/ND case l:19-cv-00307-WCL-SLC document 80 filed 01/19/21 page 3 of 25

On June 30, 2020, this Court entered a scheduling order pursuant to Federal Rule of Civil

Procedure 16, setting July 26, 2021, as the last date to complete all discovery. (ECF 45, 46). On

August 19, 2020, Plaintiff propounded her first set of requests for production on all Defendants.

(ECF 55). On September 14, 2020, Plaintiff similarly propounded Requests for Admissions on

Defendants Hunter Run and Interstate Realty Management Company (ECF 61), Erika Holliday

(ECF 62), and Naomi Friedrichsen (ECF 63). Three days later, on September 17, 2020,

Defendants responded to Plaintiffs request for production (ECF 55), raising a variety of

objections to each of Plaintiff s requests (ECF 64), but producing 101 pages of responsive

documents (ECF 64-1 through ECF 64-5). On October 9, 2020, Defendants filed a notice of

deposition—scheduling a deposition of Plaintiff (ECF 65)

as well as responses to each of

Plaintiffs requests for admissions—again raising multiple objections to each request (ECF 6668).

On October 19, 2020, Plaintiff filed the instant motion to compel asserting that _

Defendants and their counsel did not act in good faith in responding and objecting to her

discovery requests. (ECF 69). More specifically, Plaintiff repeatedly claims that Defendants’

counsel was “lying” and at numerous points accuses counsel and the individual Defendants of

committing perjury. (See, e.g., id. at 1, 2, 8). Defendants, in response, attach multiple emails as

evidence that they have attempted to confer in good faith with Plaintiff regarding their objections

to her discover requests. (ECF 71-1 through ECF 71-7). Similarly, Defendants maintain that

their varij /objections to Plaintiffs requests were valid—namely that her requests were, at

■ '^different points, vague, overly broad, compound, and generally improper. (ECF 71).

On November 2, 2020, Defendants filed their own motion to compel (ECF 72), alleging

that Plaintiff had refused to attend her scheduled deposition. (ECF 73 at 2; ECF 73-1). Plaintiff,

Senu

SDC IN/ND case l:19-cv-00307-WCL~SLC document 80 filed 01/19/21

/07

page 4 of 25

m response, contends that her deposition should be postponed because Defendants have failed to

fully comply with her discovery requests. (ECF 75 at 2). Plaintiff similarly alleges that the

deposition will be used to “taunt” her and reiterated her claims that Defendants and their counsel

have acted in bad faith. (Id.; ECF 75-1).

B. Applicable Law

Pursuant to Federal Rule of Civil Procedure 34, a party may serve another with a request

to produce or pennit the party to inspect a document or thing “in the responding party’s

possession, custody, or control.” Fed. R. Civ. P. 34(a)(1). Such requests must be within the

scope of discovery permitted by Federal Rule 26(b)—that is—it must be relevant to a party’s

claim or defense and proportional to the needs of the case. Fed. R. Civ. P. 26(b), 34(a). The

responding party may object to a request that it believes is improper pursuant to Federal Rule

34(b)(2)(C).

Similarly, per Federal Rule of Civil Procedure 36, “[a] party may serve on any other

party a written request to admit... the truth of any matters within the scope of Rule 26(b)(1)

relating to: (A) facts, the application of law to fact. or opinions about either; and (B) the

genuineness of any described documents.” “[Requests for admission must be simple, direct and

concise so they may be admitted or denied with little or no explanation or qualification.”

Sommerfield v. City of Chi, 251 F.R.D. 353, 355 (N.D. Ill. 2008). Further, an answering party

may respond to a request for admission by denying, stating in detail why it cannot truthfully

admit or deny the request, or objecting to a request—so long as it does not “object solely on the

ground that the request presents a genuine issue for trial.” Fed. R. Civ. P. 36(a)(4)-(5).

Under Federal Rule of Civil Procedure 37 , a party is permitted to file a motion to compel

discovery where another party fails to respond to requests for admission or requests for

/o f?

' USDC 1N/ND case l:19-cv-00307-WCL-SLC document 80 filed 01/19/21 page 5 of 25

production of documents. Fed. R. Civ. P. 37(c); see also Redmond v. Leatherwood, No. 06-C1242, 2009 WL 212974, at *1 (E.D. Wis. Jan. 29, 2009). “A motion to compel discovery

pursuant to Rule 37(a) is addressed to the sound discretion of the trial court.” Redmond, 2009

WL 212974, at *1 (citation omitted). While a discovery request is entitled to “broad and liberal

treatment,” Goldman v. Checker Taxi Co., 325 F.2d 853, 855 (7th Cir. 1963), a discovery

request, “like all matters of procedure, has ultimate and necessary boundaries,” Hickman v.

Taylor, 329 U.S. 495, 507 (1947). The moving party generally bears the burden of proving that

the discovery it seeks is relevant to- the case. See United States v. Lake Cty. Bd. of Comm rs, No.

2:04 CV 415,2006 WL 978882, at *1 (N.D. Ind. Apr. 7, 2006) (citations omitted). Conversely,

“[t]he party opposing discovery has the burden of proving that the requested discovery should be

disallowed.” Bd. ofTrs. of the Univ. ofEl v. Micron Tech., Inc., No. 21 l-cv-02288-SLD-JEH,

2016 WL 4132182, at *3 (C.D. Ill. Aug. 3, 2016) (collecting cases).

Subject to certain limited exceptions, “[a] party may, by oral questions, depose any

person, including a party, without leave of court” so long as that person and the other parties

have “reasonable written notice.” Fed. R. Civ. P. 30(a)(1). “In the absence of a showing of a

lack of good faith on the part of [her] adversary, a party may not refuse, upon deposition, to

reveal matters specifically within the scope of the examination permitted by the [Federal Rule's].”

Smith, Kline & French Labs. v. Lannett Co., 2 F.R-D. 561, 562 (E.D. Pa. 1942). Courts have

found a party’s willful failure to attend her deposition grounds for sanctions. See, e.g., Stewart v.

Elinois, No. 01 C 5520, 2003 WL 21939036, at *1 (N.D. Ill. Aug. 12, 2003).

, ./A7

USDC IN/ND case l:19-cv-00307-WCL-SLC document 80 filed 01/19/21

page 6 of 25

C. Analysis

1. Plaintiffs Motion to Compel

Having reviewed both Defendants’ discovery responses (ECF 64, 66-68) and Plaintiffs

motion (ECF 69), the Court agrees with Defendants that Plaintiff s motion is generally meritless

and should be denied. In her motion, Plaintiff raises specific arguments as to Defendants’

responses to Items 1-74 of her requests for production.5 (ECF 69). Plaintiff also raises more

general arguments as to Defendants’ responses to her requests for admissions, contending that

Defendants have committed perjury and have lied in their responses. {Id. at 1-3). Finally,

Plaintiff requests sanctions against Defendants and their counsel and asks that Defendants’

discovery responses be “excluded.” {Id. at 10). The Court will address each argument in turn.

i. Request for Production. Item 1

Plaintiff first requests that Defendants produce any documents listing any white, “section

8” tenants, with certain criteria6—presumably similar to Plaintiff—that were issued either a

“final pet warning without any prior pet warning,” a request to vacate due to unauthorized

guests, or were served with an eviction lawsuit. (ECF 55 at 2-3). Plaintiff, in the same request,

Mowldt^615 6aCh reqU6St f°r pr°duCti0n as “ “item'” (See ECF 55)' For the sake of consistency, the Court will

Plaintiff raises additional arguments as to other “items” and responses in her reply brief. (See ECF 75) “A reply

brief, though, is not the proper vehicle to raise new arguments not presented in an opening brief.” White v. United

States, 23 F. App’x 570, 571 (7th Cir. 2001). In any event, Plaintiffs arguments in her reply largely mirror the

arguments raised m her motion. Because such arguments are generally meritless, the Court sees no reason to

address the additional points raised in Plaintiffs reply.

In particular, Plaintiff seeks documentation regarding white, “Section 8” tenants who had:

A. Never missed paying rent, never paid late rent;

B. Had no criminal activity

C. Had no property damage

D. No immediate neighbor complaints ....

E. Very little to no company at the home

F. Maintained an orderly, quiet well ran home

(ECF 64 at 2-3).

USDC IN/ND case l:19-cv-00307-WCL-SLC document 80 filed 01/19/21 page 7 of 25

also seeks the production of any such warning, request, or civil complaint, as well as any

documentation of similarly situated white. “section 8” tenants who were not treated “harshly.”

(Id). Defendants objected on the grounds that Plaintiff s request was “vague, overly broad m

time and scope, unduly burdensome, and seeking information that is not relevant and not

reasonably calculated to lead to the discovery of admissible evidence,” and generally

V^unintelligible. (ECF 64 at 3-4)

As an

. As such, Defendants produced no responsive documents. (Id).

initial matter, the Court reads Plaintiffs request as seeking evidence of similarly

situated white tenants who were treated differently than her. Such ‘comparator evidence would

certainly seem

Rule 26.

See Mehta v. Vill. of Bolingbrook, 196 F. Supp. 3d 855, 867 (N.D. Ill. 2016) (“[T]o

prevail on a

FHA;

were

relevant to a claim under 42 U.S.C. § 3604(b) or § 3617, and within the scope of

claim under section 3617, a plaintiff must show (1) [s]he is protected under the

(2) [s]he was engaged in the enjoyment or exercise of [her] FHA rights; (3) defendants

at least partly motivated by an intentto discriminate; and (4) defendants coerced,

intimidated, threatened, or

interfered with the plaintiff on account of [her] FHA-protected

activity.”); Krieman v. Crystal Lake Apartments Ltd. P ’ship.. No. 05 C 0348, 2006 WL 1519320,

at *7 (N.D. Ill. May 31, 2006) (“[To prevail on a claim under § 3604(b),] Plaintiffs must show:

1) that they are members of a protected class; 2) that they were qualified to receive the services

in question; 3) that they were denied or delayed services by the Defendants; and 4) that

Defendants treated a similarly situated person outside of the protected class more favorably”

(quoting Flores v. Vill. ofBensenville.Ho . 00 C 4905, 2003 WL 1607795, *4 (N.D. Ill. Mar. 26,

2003))). Indeed, in order to survive a motion for summary judgment or proceed at trial, Plaintiff

must show that Defendants treated similarly situated tenants differently than hei . See id.

(granting summary judgment in part because “Plaintiffs claim[ed] drat tire air conditioners of

ill

USDC IN/ND case l:19-cv-00307-WCL-SLC document 80 filed 01/19/21

page 8 of 25

other tenants were repaired before their own, but could not identify those persons or provide any

support for their position”).

That being said, Plaintiffs request, as written, is vague and overly broad for

a variety of

reasons • Courts analyzing a claim of hostile housing environment look to cases discussing

hostile work environment, under Title VII of the 1968 Civil Rights Act, for guidance.” 47

A.L.R. Fed. 3d Art. 3 (2019). “Under [Seventh Circuit Court of Appeals] precedents,

. an

employment discrimination plaintiff may demonstrate pretext by providing evidence that a

similarly situated employee outside her protected class received more favorable tr

eatment.”

Coleman v. Donahoe, 667 F.3d 835, 841 (7th Cir. 2012). However, in order to use such

comparator evidence, i, must contain^MiSmsSI^. . to allow for a meaningful

comparison in order to divine whether intentional discrimination

was at play.” Id. at 847

(quotingBarricks y. Eli my & Co., 481 F.3dji56, 560 (7th Cir. 2007)). As such, requests for

discovery should b| limited to the time frame involving the alleged discriminatory conduct”1

>|[__ ^ ^

-----

------ ^

Johnson v. Jung, No. 02 C 5221, 2007 WL 1752608, at *2 (N.D. Ill. June 14, 2007) (internal

quotation marks omitted) (collecting cases).

Hh®

l -

Here, PlaintiiFs fquSnTSllSSTVVUlhe was a tenantlthe years of the

-IE CS&

aheged discriminatory actions, or any similarly relevant time period. See%eon v. Coca-Cola

Bottling Co. ofNew England, 232 F.R.D. 49, 55 (D. Conn. 2005) (finding interrogator!,©

^ ^

requesting information going bacl^twenty years overly burdensome) ~

. Further, Plaintiff extendedpq-r) /'Vi ...«2

her request to other documents concerning white tenants who were not treated “harshly.” This PP

would certainly seem to encompass a wide range of conduct which

ips©

would not provide a

0b oV

meanmgful comparison to the alleged discrimination that Plaintiff felt. Accordingly, Plaintiffs

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USDC IN/ND case l:19-cv-00307-WCL-SLC document 80 filed 01/19/21 page 9 of 25

motion to compel (ECF 69) is DENIED as to Item 1. Plaintiff is ENCOURAGED to work with

Defendants to narrow this request in time and scope.

ii. Request for Production. Item 2

In her second request, Plaintiff sought documents “that show that [she] missed paying

rent or was late paying rent.” (ECF 55 at 3). Defendants again objected on the grounds that the

request was vague, overly broad,' unduly burdensome, not relevant and not reasonably calculated

to lead to admissible evidence, and sought information already in the possession, custody, or

control of Plaintiff. (ECF 64 at 4). Nevertheless, Defendants produced one responsive

document—a June 6, 2016, letter to Plaintiff stating that there was an outstanding balance on her

account. (ECF 64-1). Plaintiff, in turn maintains that “[tjhere should be no objection to [her]

having this evidence that pjefendants are admitting to a good payment history of the plaintiff. .

. .” (ECF 69 at 4).

As an initial matter, it is not clear what Defendants find vague or unduly burdensome

about Plaintiffs request. “The burden rests upon the objecting party to show why a particular

discovery request is improper.” McGrath v. Everest Nat l Ins. Co., 625 F. Supp. 2d 660, 670

(N.D. Ind. 2008) (citation and internal quotation marks omitted). Unlike Item I, it is not clear

from the text of the request what Defendants are objecting to, and courts have consistently held

that mere “boilerplate” objections to discovery such as the ones employed here—without moredo not constitute grounds for noncompliance with a discovery request. See Fudali v. Napolitano,

283 F.R.D. 400, 403 n.2 (N.D. Ill. 2012) (collecting cases); see also Gingerich v. City ofElkhart

Prob. Dept., 273 F.R.D. 532, 542-43 (N.D. Ind. 2011). That being said, it appears that

Defendants did in fact comply with Plaintiffs request—producing the June 6, 2016, letter.

/I3

USDC IN/ND case l:19-cv-00307-WCL-SLC document 80 filed 01/19/21 page 10 of 25

Plaintiffs main concern seems to be that Defendants did not admit that she had a “good”

payment history. (ECF 69 at 4). But that was not the request Plaintiff made. Plaintiff could

have posed a question about her payment history by way of an interrogatory pursuant to Federal

Rule of Civil Procedure 33 or a request for admission pursuant .to Rule 36. Or, Plaintiff could

have requested documents showing that she had made full and timely rent payments. But that is

not what she did. She asked for any documentation that she missed rent payments and so that is

what she received.

Lastly, while Plaintiff takes issue with Defendants objecting to her request, Federal Rule

34(b) specifically contemplates parties objecting to requests for production. Further, objections

under Rule 34 are generally considered waived unless raised in a timely manner. See Whitlow v.

___ n _ ___ [uu_t i

Martin, 259 F.R.D. 349, 354 (C.D. Ill. 2009). While the use of boilerplate objectionTto^

discovery requests may not be persuasive, they are not uncommon) The fact that Defendants

f'*—

lodged these objections but otherwise attempted to comply with Plaintiffs discovery requests ‘

does not suggest that they acted in bad faith. See Hashim v. Ericksen, No. 14-CV-1265, 2016

WL 6208532, at *2 (E.D. Wis. Oct. 22, 2016') (“Plaintiff disagrees witli"defendants’ deniaTof

^Aisadmissisnsrequests/k However, defendants responded to the request and plaintiffs

disagreement with it is not the proper subject of a motion to compel.” (internal citation

omitted)). Accordingly, because Defendants appear to have complied with Plaintiffs request,

her motion to compel is DENffiDasJoJtem 2.

iii. Request for Production. Item 3

In her next request, Plaintiff asked for “documents showing that [she] had criminal

activity during her tenancy.” (ECF 55 at 3). In addition to the boilerplate objections raised in

their other-responses, Defendants specifically objected that the phrase “criminal activity” is

.,11.3

USDC IN/ND case l:19-cv-00307-WCL-SLC document 80 filed 01/19/21 page 11 of 25

vague, ambiguous, and undefined. (ECF 64 at 4). Nevertheless, Defendants again responded to

the request, reporting that they had no responsive documents. (Id.).

Again, Plaintiff i^gripe^does not appear to be with the fact that Defendants do not have.

any responsive documents. Indeed, her request in Item 1 and her filings throughout this case

seem to suggest that she has no criminal history. Rather,#laiSrffseems to take issue with

/^hrtitD^dffiS^Srtediran^^e ECF 69 at 5 (“Thus [Defendants] must state none XU -pVT

without objection.”)). As already mentioned, though, parties are allowed to raise objections to

requests for production. Further, the Court agrees that the phrase “criminal activity” is vague. It

is not clear whether Plaintiff is requesting documents showing she was convicted of a crime

during her tenancy, or complaints from neighbors that Plaintiff or a member of her household

engaged in criminal activity, or for any record that a criminal act perpetrated by a third party

occurred in her household. In any event, though, a motion to compel is again inapplicable

because Defendants did in fact comply with the request—denying that any such document exists.

(ECF 64 at 4). Accordingly, Plaintiffs motion (ECF 69) is DENIED as to Item 3.

iv. Request for Production. Item 4

In her next request, Plaintiff sought “documents showing that [she] caused damage to her

property at the apartment due to neglect or wrong use of the apartment.” (ECF 55 at 4).

Defendants again raised conclusory boilerplate objections, but specifically objected that the

“term[s] ‘neglect’, ‘wron g use’ and ‘violations’ are vague, ambiguous, and undefined. (ECF 64

at 4). Nevertheless, Defendants produced five letters and two “friendly reminder forms

detailing various alleged lease violations. (ECF 64-2). Again, Plaintiff asserts that Defendants

should have responded without raising any objections. (ECF 69 at 6 (“If [Defendants believe

that blinds are the property damage requested and that they were used ‘wrongful’ or broken by

(ft®#/

1.1.5"

USDC IN/ND case l:19-cv-00307-WCL-SLC document 80

filed 01/19/21 page 12 of 25

‘neglect’ .... they should state: refer to the blinds violation .. • without objection, (emphasis

in original))).

F°rthereasons already discussed supra, Plaintiffs motion to compel as to this request is

|t|

'.-r.).IT.

mentless^Defendants are able to object.to requests that they, in good faith, find ambiguous or

overly broad. Further, Defendants did in fact respond to Plaintiffs request. Accordingly,

Plaintiff s motion to compel as to Item 4 is DF.NTF.D

v. Request for Production. Item 5

Plaintiff next requested evidence that her “immediate neighbors complained about her.”

(ECF 55 at 4). Defendants objected onthe grounds that the request was vague, overly broad,

unduly burdensome, irrelevant—specifically asserting that “the term ‘complained’ is vague,

ambiguous, and undefined.” (ECF 64 at 4). Still, in response to the request, Defendants referred

to their response to Item 4—which included a December 5, 2016, letter stating that Plaintiffs

■------------------------------------- ---- ------------------------- •-------------------------- --------------------------------------------------------- ------

.^undtag^^

-- -------------------

up after her dog. (ECF 64-2

at 7). A handwritten note signed by Defendant Erika Holliday on the letter, however

, states to

please disregard” and that the letter was later “removed from file,” Id.

Plaintiffs motion as to this request is somewhat contradictory. She asks that Defendants

be compelled to “submit all complaints made by neighbors” but states that they cannot refer to a

violation that they affirmatively “disregarded and removed from the file,” (ECF 69 at 8

(emphasis omitted)). Agam,Jdaintiff seems to take issue with the form of Defendants

response

„

.............■" 1 ■»«..........................—

but not ltSoS&lgiit» Plaintiff asked for documentatiion in

Defendants custody or control

showing that neighbors had complained about her. Accordingly, Defendants produced

a letter

they had sent purporting to be a response to complaints they had received about Plaintiffs dog.

Though Defendant Erika Holliday admitted in response to a request for admission that it

was

I I (q

USDC IN/ND case l:19-cv-00307-WCL-SLC document 80 filed 01/19/21 page 13 of 25

inadvertently issued (ECT68_atj), the letterjtiUseems responsive to Plaintiffsreguest.

Accordingly, Plaintiffs motion as to Item 5 is also DENIED.

vi. Request for Production. Item 6

Plaintiff next asked Defendants to produce “documents showing that [her] grandchildren

caused trouble during their stay at Hunters Run.” (ECF 55 at 4). Defendants once again raised ■

boilerplate objections while specifically objecting to the phrase “trouble,” but otherwise

responded that they have no responsive documents. (ECF 64 at 5). Again, Plaintiffs issue

appears to be that Defendants raised objections to this request. (ECF 69 at 6 (“Either there is

documentation that the children were in trouble as tenants or there is no documentation. No

objections.”)). But Defendants complied with the request—stating that they had no responsive

documents—and thus, Plaintiffsmotion as toltem 6 is DENIED. _

vii. Request for Production, Item 7

Plaintiff next takes issue with Defendants’ response to Item 7 of her requests for

production. (ECF 69 at 2). In Item 7, Plaintiff requests that Defendants “[produce documents

showing that [she] had ever been SERVED with any lease violation.” (ECF 55 at 4). Plaintiff

explains that “[j]ust a written account is not a service. Anyone can write and make up 1000

violations.” (Id.). Rather, Plaintiff requests “ALL service violations ... [such as a] court .

eviction and all other such serviced violations or a US mailed violation.” (Id.). Defendants

objected to this request on the grounds that the request is vague—specifically the terms served

and “service violation”—overly broad in time and scope, unduly burdensome, and seeking

evidence that is not relevant or reasonably calculated to lead to the discovery of admissible

evidence. (ECF 64 at 5). Nevertheless, Defendants referred to the documents produced m

USDC IN/ND case l:19-cv-00307-WCL-SLC document 80 fi I ed 01/19/21 p ag e 14 of 25

1/7

response to Item 4 (ECF 64-2 at 1-9), as well as Plaintiffs previous filings in the Grant County

case (ECF 64 at 5).

Plaintiff s request is vague. It is not clear what Plaintiff means by “service” or a

“serviced violation.” At least in legal parlance, “to serve” means “to make legal delivery of (a

notice of process),” or “to present (a person) with a notice of process required by law.” Serve,

Black’s Law Dictionary (11th ed. 2019). A “service” then, is “[t]he formal delivery of a writ,

summons, or other legal process, pleading, or notice to a litigant or other party interested in

litigation; the legal communication of a judicial process.” Service, Black’s Law Dictionary (11th

ed. 2019). Presumably, Plaintiff is requesting that Defendants produce a judicial determination

that she did or did not violate her lease.

There is nothing to suggest, though, that there has been any other lawsuit involving

•Rft.

. -HU, ui

concerning ner lease besides the/Grant County case which was dismissed

v................— »■..........................

(ECF 15'8)- Plaintiff seems to actually be requesting that Defendants admit that

such a document does not exist-that is to say, that there has been no judicial determination she

has violated her lease. (See ECF 69 at 2 (“[Defendants’ counsel] needs to state that

no service of

any violation ever took place,. . . .”)). Such a reading, however, is far from clear from the text of

the request and is not within the scope of Rule 3'4-which again is limited to documents and.

things in Defendants’ custody or control.

Plaintiff also seems to doubt the authenticity of the documents produced—specifically,

the two “ friendly reminder” documents. (ECF 69 at 7 (“I argued that the friendly reminders

were never issued to me and I have disputed [this] from the first time I ever saw them in [the

lower court.”)). That being said, feng^clear what that issue—whether or not Plaintiff saw

—.................. .....mum..»■

those two documents before now—has to do with discovery. As discussed in greater detail

11 s

USDC 1N/ND case l:19-cv-00307-WCL-SLC document 80 filed 01/19/21 page 15 of 25

below, Plaintiff is free to attack the admissibility of the documents and how much weight they

should be

afforded in future proceedings. That, though, is a dispute for another time.

Accordingly, Plaintiffs motion as to Item !> is DENED.

viii. Plaintiffs Arguments as to the Request for Admissions

Throu

gh much of her motion, Plaintiff also accuses Defendants Naomi Friedrichsen and

Erika Holliday, as

well as their attorney Brittney Rykovich, of committing perjury and lying to

the Court. (ECF 69 at 7-8). For example, in her first request for admissions as to Defendant

Friedrichsen, Plaintiff requested that Friedrichsen admit that she “perjured [herjself (LIED under

oath) at some point any point during [her] testimony in lower court.” (ECF 63 at 1). Defendants

objected to the request as unintelligible and to the extent that it called for a legal conclusion, but

otherwise denied the allegation. (ECF 66 at 3). Plaintiff also requested that Defendant

Friedrichsen admit she had accused Plaintiff of having multiple unauthorized occupants m her

apartment, to which Defendants res

ponded that the April 19, 2017, letter and 30-day notice to

vacate “speaks for itself.” (ECF 66 at 3; ECF 64-2 at 8). Plaintiff similarly requested that

Defendant Friedrichsen admit that she “never witnessed unauthorized occupants living m

[Plaintiffs] home prior to April 19,2017.” (ECF 66 at 3). Plaintiff now asserts that Defendant

Friedrichsen—

in addition to perjuring herself in the Grant County case-perjured herself in

denying and objecting to these requests for admission. (ECF 69 at 8).

the Comt

to be the Grant County Superior Court-but believes that Plaintiff is reiterating the arguments

aised in support of her partial motion for summary judgment. (ECF 36). In particular,

she first r

Plaintiff filed an “Affidavit Testimonies from Lower Court” in which she included a portion of

the transcript of Defendant Friedrichsen’s testimony from the Grant County case. (ECF 37).

SDC IN/ND case l:19-cv~00307-WCL-SLC document 80

filed 01/19/21 page 16 of 25

//?

At least as .to the first two requests for admission posed to Defendant Friedrichsen, the

basis of Plaintiff s accusation of perjury seems to be as follows: In the Grant County case, the

trial court held a preliminary possession hearing on June 8, 2017,

pursuant to Indiana Code § 32-

30-3-5. (ECF 15 at 2; see also ECF 15-4). At the hearing, Defendant Friedrichsen testified on

direct examination that “it was r eported to [her] by [her] assistant and [she] also witnessed] it as

well that there has [sic] been additional people and potential occupants in TPlaintiff C

apartment” (ECF 37 at 8). Defendant Friedrichsen also testified that the April 19,2017, letter

and 30-day notice (ECF 64-2 at 8) “was a result of various lease violations plus [Plaintiff] had

what we thought was an unauthorized

---

Defendant Friedrichsen testified that she personally had “only noticed

one [unauthorized

I’f

occupant].” (Id. at 38). Plaintiff then sought to compare Defendant Friedrichse

n’s statement on

cross examination (ECF 37 a, 39), with die April 19,2017, letter where Defendant Friedrichs^SS£gr

'WOte “W<^A^^^lieve ftg you haye unmthorized occupang

your apartment„

also ECF 37 at 3).

"0$! "flW?

or a variety of reasons, the Court concludes that Defendant Friedrichsen's responseTiiDQ^;:

these requests for admission do not warrant sanctions and that her objections were justified.

R. Civ. P. 36(a)(6). First and foremost, Defendants did in fact respond to the request for

admission—denying the request Further, Defendants

’ objection—that the request called for a

legal conclusion—is proper. Perjury is a crime. Whether someone did

or did not commit a

crime is a legal conclusion. See Wimpye v. AKSteel, No. 1:1 l-CV-844, 2013 WL 3148234, at

*2 n.3 (S.D. Ohio June 19, 2013), R&R adopted, No. C-l-11-844, 2013 WL 3975760 (S.D. Ohio

Aug. 1, 2013) (“[Pjlamtiff s conclusory allegation that AK Steel is

guilty of discriminatory

tfb

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<£Sr«iWL

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USDC IN/ND case l:19-cv-00307-WCL-SLC document 80 filed 01/19/21 page 17 of 25

practices is a legal conclusion. . . . ”). “Requests to admit may not be used to establish legal

conclusions.” Sommerfield, 251 F.R.D. at 355.

Further, “[a] defendant commits perjury if, while testifying under oath, [s]he gives false

testimony concerning a

than as a result rfg^o^ak^faJgmgory; United States v. Riney, 742 F.3d 785,

790 (7th Cir. 2014) (citation and internal quotation marks omitted) . There is nothing in the

• \% ^

record to suggest that Defendant Friedrichsen’s statements in the April 19 ,2017, letter were

A £>

4 kY

■aJC

made under oath, and she testified in the Grant County case that the suggestion she had

4 is

personally observed multiple occupants—as o pposed tothe one she supposedly had firsthand

k%■ f • ,

knowledge of—was made by mistake. (ECF37at39). Similarly, whether or not Defendant ^

"""

””

■ ’ Friedrichsen had firsthand knowledge of multiple unauthorized occupants does not appear to

fvUj

A^have been particularly material to the proceeding in the Grand County case, or the proceedings

aESmJ

A'., Pniirf

-^4

^X ^

Speech 4^

While Plaintiff raises similar arguments regarding the state-court testimony of Defendant ^ ^ w , r

Holliday she fails to attach any supporting transcripts.1 In any event, though, Plaintiffs attacks

' on Defendants’ credibility are not within the purview of a motion to compel. At trial, Plaintiff

will be able—within in the bounds of the Federal Rules of Evidence—to question Defendants

(fa* i h£L

about prior inconsistent statements. See Fed. R. Evid. 613. For each of the requests for

admissions, though, Defendants answered, denied, or objected. (See ECF 66 through ECF 68).

As explained above, each of these responses are acceptable. Plaintiff may disagree with

Defendants’ answers and may disagree with Defendants’ version of the events, but neither of

7 -Plaintiff does provide an “affidavit” summarizing what the supposed testimony was. (ECF 37). The Court,

however, declines to impose sanctions based solely on Plaintiffs recollection of what the state court testimony was.

tOtsl&f

U» ^

Ofoi&i

121

USDC IN/ND case l:19-cv-00307-WCL-SLC document 80

filed 01/19/21 page 18 of 25

these issues are grounds for a motion to compel. See Braithwaite

v. Rz7/e,No. 17-CV-706-PP,

2020 WL 4934586. at *7 (ED. Wis. Aug. 24.2020) (“The fact that the defendants disag

ree with

the plaintiff, or that they do not remember the incident the way the plaintiff does, does not mean

' (*>(s JL

/ 'o

that they are lying under oath. It is not the court’s job, or even the plaintiffs, to decide whose jT

^ +U-

version of events is the most credible. That is the jury-S job.”); see also Hashim, 2016 WL

6208532, at *2.

ix. Plaintiffs Request for Sanctions

o rt

io'U fftei-ff "fie

eiYBR^^r Ue.ntkn

As mentioned, Plaintiff also requests that sanctions be imposed on Defendants

and their

counsel. (ECF 69 at 10). In general, Rule 37(b)(2)(A) permits the Court to imp

oses sanctions on O-i"

Ce^rf

a party which “fails to obey an order to provide or permit discovery, including

an order under

Rule 26(f), 35, or 37(a).... ” While not always necessary, a successful motion to compel

“usually precedes the imposition of Rule 37(b) sanctions ...

.” Tamari v. Bache & Co.

(Lebanon) SAX., 729 F.2d 469, 472 (7th Cir. 1984). Because Plaintiffs motion to compel (ECF

69) is denied, and because Defendants have not otherwise failed to comply with an order to

permit discovery, sanctions pursuant to Rule 37(b) are inappropriate.

Kri6\K

It is possible that Plaintiff is requesting sanctions be imposed pursuant to Rule 37(c) for

Defendants alleged lack of truthfulness in responding to Plaintiffs requests for admission

sanctions, however, are premature. If at trial Plaintiff is able to establish the truth of a req

. Such

uest

Oct. 12, 2007) (“Federal Rule of Civil Procedure 37(c)(2) provides for sanctions ‘

fails to admit... the truth of any matter as requested under Rule 36

fLLlW

CvB/'Y A'!

at *2 (N.D. Ill.

[i]f a party

and if the party requesting

the admissions thereafter proves ... the truth of the matter.’ Therefore, the proper time for APC

tua 5

for admission that was denied, Plaintiff could again move for sanctions under Federal Rule

37(c)(2). See APCFiltration, Inc. v. Becker, No. 07 C 1462, 2007 WL 3046233,

4\-e cj

USDC 'IN/ND case l:19-cv-00307-WCL-SLC document 80 filed 01/19/21 page 19 of 25

to move for sanctions based on Becker and SourceOne’s responses to AJPC’s requests to admit

will come only after the finder of fact determines the truth of the matter. Because this has not

occurred (and is not certain to occur) the Court does not impose sanctions on this basis.”). At

least at this point, though, Plaintiffs request for sanctions is DENIED.

x. Plaintiffs Request to “Exclude” Evidence

Plaintiff also requests that the Court exclude Defendants’ discovery responses due to

Defendants’ various objections. (ECF 69 at 8). Plaintiff, however, does not cite any authority in

support of her request. To the extent that Plaintiff is requesting that Defendants be prohibited

“from introducing designated matters in evidence” as a sanction pursuant to Federal Rule

37(b)(2)(A)(ii), for the reasons already discussed, such sanctions are not warranted on this

record.

To the extent that Plaintiff believes that Defendants’ discovery responses are not

admissible evidence, her request to exclude is premature. Discovery is a collaborative process

between the parties, “designed to facilitate both the preparation for and the trial of cases.”

United States v. Am. Locomotive Co., 6 F.R.D. 35, 37 (N.D. Ind. 1946). “[Rjelevancy in the

discovery context is broader than in the context of admissibility.” Piacenti v. Gen. Motors

Corp., 173 F.R.D. 221, 224 (N.D. Ill. 1997). “Information within [the] scope of discovery need

not be admissible in evidence to be discoverable.” Fed. R. Civ. P. 26(b)(1). Because Plaintiff is

a pro se party, the parties are re quired to file their discovery requests and responses pursuant to

Northern District of Indiana Local Rule 26-2(a)(2), but this does not mean that the Court has

considered the eventual admissibility of any of the discovery materials filed.

This Court’s Local Rules only contemplate parties filing discovery materials pertaining to

discovery disputes pursuant to Federal Rules of Civil Procedure 26(c) or 37 and materials “that

\Ub

USDC IN/ND case l:19-cv-00307-WCL-SLC

,/Z3

document 80 filed 01/19/21 page 20 of 25

the party relies on to support a motion that could result in a final

order on an issue.” N.D. Ind.

L.R. 26-2(b)-(c). Here, the Court has only considered Defendants’

discovery responses to the

extent that they bear on Plaintiffs motion to compel. (ECF 69). It has not, however, considered

the admissibility or weight to be afforded to any discovery response. If Defendants were to file

discovery materials m support of a motion for summary judgment which Plaintiff believes

not admissible, she is free to object to such evidence then. Fed. R.

are

Civ. P. 56(c)(2); see also

Cehovic-Dixneufv. Wong, 895 F.3d 927, 931 (7th Cir. 2018) (“In the briefing

summary judgment, either side may object that the other’s evidence

on a motion for

cannot be presented in a

form that would be admissible in evidence.” (citation and internal quotation marks omitted)).

Similarly, Plaintiff is free to object to the admissibility of evidence before trial b

y way of a

motion in hmint or at trial. See Dartey v. Ford Motor Co., 104 F. Supp. 2d 1017, 1020 (N.D.

Ind. 2000). However, at this time, the Court

sees no need to exclude Defendants’ discovery

responses or otherwise strike them from the record.

2. Defendants ‘ Motion to Compel

^Defendants’ Arguments Regarding Plaintiffs Pepnsifinn

As mentioned, Defendants have also filed a motion seeking to compel Plaintiffs

attendance at her own deposition. (ECF 72). Plaintiff, in response, contends that her deposition

should be postponed until after Defendants have fully complied with her discovery requests.

(ECF 75 at 2; see also ECF 73-2, ECF 73-3). Plaintiffs argument, however, has no

support in

the Federal Rules of Civil Procedure or the relevant caselaw.

Pursuant to Federal Rule 30(a)(1), Defendants may “depose any person, including a

party, without leave of court .. ..” That being said, the “party who wants to depose a person by

oral questions must give reasonable written notice to every other party,” with such notice

USDC IN/ND case l:19-cv-00307-WCL-SLC document 80 filed 01/19/21 page 21 of 25

including the “time and place of the deposition, and if known, the deponent ’s name and address.”

Fed. R. Civ. P. 30(b)(1). Finally, the notice must state “the method for recording the testimony.

Fed. R. Civ. P. 30(b)(3)(A). In general, “a failure [of a party to attend its own deposition] is not

excused on the ground that the discovery sought was objectionable ...

Fed. R. Civ. P.

37(d)(2).

Here, Defendants filed a notice of deposition in compliance with Rule 30 on October 9,

2020. (ECF 65). Plaintiff, however, failed to respond to the notice. Instead, Plaintiff emailed

Defendants’ counsel explaining that she would not attend her deposition until Defendants

cooperated with her discovery requests, (See ECF 73-2, 73-3). Plaintiff, however, cannot delay

responding to Defendants’ discovery requests merely because she believes that Defendants have

not been forthright in responding to hers. Williams v. Biomet, Inc., No. 3:12-MD-2391RLMMGG, 2019 WL 6117594, at *3 (N.D. Ind. Nov. 15, 2019) (“The prematurity argument seems to

be based on the proposition that Biomet must complete its own discovery before it can respond

to Ms. Williams’s discovery requests. Biomet’s position has no basis in the law.”); see also

Hendrickson v. Wal-Mart Stores Inc., No. 17-C-1680, 2019 WL 1877227, at *1 (EX). Wis. Apr.

26, 2019) (“By failing to attend his deposition, Hendrickson has thwarted Wal-Mart ’s efforts to

conduct discovery and defend against his claims. Hendrickson has provided no reason for the

court to believe that his failure to appear for his deposition was substantially justified, His

conduct is nothing short of a willful disregard of his discovery obligations.”).

In summary, Plaintiff has not shown that she is entitled to postpone or otherwise delay

her deposition. As already discussed, the Court does not find that Defendants’ objections to

Plaintiffs various discovery requests constitute “bad faith.” See Lannett Co., 2 F.R.D. at 562.

Further, discovery disputes-on their own-do not justify a party’s failure to attend her own

• 12-S

USDC IN/ND case l:19-cv-00307-WCL-SLC document 80 filed 01/19/21

page 22 of 25

deposition. Accordingly, Defendants’ motion to compel (ECF 72)

is GRANTED. Plaintiff is

ORDERED to work with Defendants to schedule a deposition within 21 days of this Order.

11,. Defendants’ Request for Fpp^

Defendants also request that Plaintiff be ordered to pay the “costs and fees incurred

. as

a result of Plaintiff s bad faith in cancelling her previously noticed deposition.” (ECF 73 at 3).

Rule 37 contemplates sanctions both for failing to attend a deposition and for opposing a motion

to compel. Indeed, Rule 37 presumptively requires the loser “to make good the victor’s costs.”

Rackemann v. LISNR, Inc., No. l:17-cv-00624-MJD-TWP, 2018 WL 3328140,

at *2 (S.D. Ind.

July 6, 2018) (citation and internal quotation marks omitted). Pursuant to Rule 37(d), the Court

may order a party who “fails, after being served with proper notice, to appear at [her] deposition”

to pay “the reasonable expenses, including attorney’s fees, caused by the failure

failure was not substantially justified or other circumstances make

, unless the

an award of expenses unjust.”

Rule 37(a) also provides that “tire [CJourt must, after giving

an opportunity to be heard,

require the party or deponent whose conduct necessitated the motion [to compel] .

• • to pay the

movant’s reasonable expenses incurred in making the motion, including attorney’s fees.”

R. Civ. P. 37(a)(5)(A). The Court, however, will not order the payment of fees if “

filed the motion before attempting in good faith to obtain the disclosure

court action; (ii) the opposing party’s nondisclosure,

Fed.

(i) the movant

or discovery without

response, or objection was substantially

justified; or (iii) other circumstances make an award of expenses unjust.” Fed. R. Civ. P.

37(a)(5)(A)(i)-(iii); see also Steadfast Ins. Co. v. Auto Mktg. Network, Inc., No.

WL 446691, at *1 (N.D. Ill. June 23, 1999). “The burden of persuasion

97C5696, 1999

is on the losing party to

avord assessment of expenses and fees, rather than on the winning party [to] obtain such

. . I 25" .

(Z(o

USDC IN/ND case l:19-cv-00307-WCL-SLC document 80 filed 01/19/21 page 23 of 25

award.” Lincoln Diagnostics, Inc. v. Panatrex, Inc., No. 07-CV-2077, 2008 WL 4330182, at *3

(C.D. Ill. Sept. 16, 2008) (citation and internal quotation marks omitted).

Here, Defendants have filed a certification that they attempted to confer with Plaintiff to

resolve this matter without the Court’s intervention. (ECF 72-1). Further, as stated supra,

Plaintiffs assertion that she could delay her deposition is not supported by the Federal Rules or

caselaw. As a result, Plaintiffs failure to attend her deposition and her response to Defendants’

motion to compel were not “substantially justified.” See Perkins v. Wis. Laborers Health Fund,

No. 11-CV-846-JPS, 2011 WL 6400465, at *1 (E.D. Wis. Dec. 20, 2011) (“An award of fees to a

successful defendant may be denied if the plaintiffs position was both ‘substantially justified’—

meaning something more than non-frivolous—and taken in good faith, or if special

circumstances make an award unjust.” (citing Harris Tr. & Sav. Bankv. Provident Life &

Accident Ins. Co., 57 F.3d 608, 616 n.4 (7th Cir.1995)); see also Paige v. Consumer Programs,

Inc., 248 F.R.D. 272, 277 (C.D. Cal. 2008) (“As an initial matter, this Court finds plaintiffs

failure to appear at the properly noticed deposition on December 21st was not ‘substantially

justified.’”).

Finally, Plaintiff did not address Defendants’ request for attorney’s fees in her response

or its accompanying affidavits. Rather, she largely reiterated the arguments made in her previous

filings and details her personal experiences and history. {See ECF 75 through ECF 77). As such,

Plaintiff—even considering her pro se status—has not met her burden of showing that there are

special circumstances that would make an award of fees unjust. See Collins v. Illinois, 514 F.

Supp. 2d 1106, 1111 (C.D. Ill. 2007), aff’d, 554 F.3d 693 (7th Cir. 2009) (finding the pro se

plaintiffs failure to participate in her deposition “was willful and egregious and grounds for

sanctions despite recognizing “that the Plaintiff may not have the familiarity with the Federal

\Z1

USDC IN/ND case l:19-cv-00307-WCL-SLC document 80 filed 01/19/21 page 24 of 25

Rules of Civil Procedure, and specifically the rules pertaining to discovery, as a licensed

attorney ). Therefore, on this record, an award of fees incurred by Defendants as a result of

Plaintiffs failure to attend her deposition and in preparing their motion to compel appears to be

appropriate.

Nevertheless, the Court still must be satisfied that the amount requested in obtaining the

order on the motion to compel is reasonable.” Priest v. Brummer, No. 1:06-CV-65, 2007 WL

2904086, at *2 (N.D. Ind. Oct. 3, 2007). Here, though, Defendants have not set forth the

amount of fees they seek to recover, or the means used to calculate that amount. See id. (“The

Plaintiff, however, does not tell us anything about the copying costs she seeks to have assessed,

such as when or why they were incurred, the number of pages copied or the per page charge, and

thus we have no way of determining whether the copying expenses are reasonable.” (citation

omitted)). Accordingly, Defendants are directed to file an affidavit detailing the amount of fees

they seek to recover and how they arrived at that amount. Because Plaintiff did not directly

address the appropriateness of Defendants’ fee request in her filings, she will be permitted to file

a response to Defendants’ affidavit to explain what—if any—special circumstances make an

award of fees unjust.

C. Conclusion

In summary, Plaintiff s motion to compel (ECF 69) is DENIED. The parties are

ENCOURAGED, however, to work together—especially as it relates to Plaintiffs Item 1—to

narrow their requests and objections. Defendants’ motion to compel (ECF 72), on the other

hand, is GRANTED, Defendants provided proper notice of Plaintiff s deposition in accordance

with Federal Rule 30. Further, while parties may object to discovery requests consistent with the

Federal Rules of Civil Procedure, Plaintiff has not identified any legal basis for her refusal to

•/z7

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USDC IN/ND case l:19-cv-00307-WCL-SLC document 8G filed 01/19/21 page 25 of 25

attend her deposition. Accordingly, Plaintiff is ORDERED to work with Defendants to schedule

a deposition within 21 days of this Order. Additionally, Defendants’ request for fees (EOF 72) is

provisionally GRANTED. Defendants are DIRECTED to file an affidavit detailing their fee

calculation within 14 days of this Order. Plaintiff is permitted to file a response within 14 days

of receiving Plaintiff s affidavit.

SO ORDERED.

Entered this 19th day of January 2021.

/si Susan Collins_________

Susan Collins

United States Magistrate Judge

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USDC IN/ND case l:19-cv-00307-WCL-SLC document 86 filed 02/15/21 page 1 of 6

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

FORT WAYNE DIVISION

SANDRA BLACK,

Plaintiff,

NAOMI FRIEDRICHSEN,

ERIKA HOLLIDAY (LIDDICK),

HUNTERS RUN APARTMENTS

AND OWNERS, and INTERSTATE REALTY

MANAGEMENT CO.,

Defendants.

)

•)

Case No. l:19-CV-307

ORDER

This matter is before the Court on the “Request for Substantiation of the Order” filed by

Plaintiff Sandra Black on February 8, 2021 (ECF No. 84). The Court interprets this pleading as

one brought pursuant to Federal Rule of Civil Procedure 72(a), as it sets forth Plaintiffs

objections to recent orders entered by Magistrate Judge Susan L. Collins, to whom this case is on

partial referral pursuant to 28 U.S.C. § 636. Specifically, Plaintiff objects to Magistrate Judge

Collins’ Opinion and Order entered on January 19, 2021, in which Judge Collins denied a motion

to compel filed by Plaintiff and granted a motion to compel filed by Defendants. Opinion and

Order (ECF No. 80). Plaintiff also appears to object to another order entered by the Magistrate on

December 2, 2020 (ECF No. 79), in which Judge Collins denied Plaintiffs request for a

“permanent extension of time” and her request that the Magistrate “remove” an admonishment

that was contained in yet an earlier order. For the reasons discussed below, Plaintiffs objections

131

USDC IN/ND case l:19-cv-00307-WCL-SLC document 86 filed 02/15/21 page 2 of 6

are OVERRULED.

DISCUSSION

Sandra Black, proceeding pro se, initiated this lawsuit on July 10, 2019, alleging that

Defendants discriminated against her on account of her race in violation of the Fair Housing Act

(“FHA”), 42 U.S.C. § 3601 etseq. Complaint (ECF 1). The case is currently in the discovery

phase. Discovery disputes arose and both sides filed motions to compel. Magistrate Judge Collins

entered her Opinion and Order denying Plaintiffs motion and granting Defendant’s motion. In

the former, Black objected to several of the Defendants’ discovery responses, asserting they were

either withheld or not answered in good faith; in the latter, the Defendants moved to compel

Black to submit to a deposition (which she was refusing to do until she received the discovery

responses she felt she was entitled to). Magistrate Judge Collins considered the parties’ pleadings

and entered a 25-page order explaining her rulings, i.e., her order of January 19. Black,

displeased with those rulings, filed her present motion asking the undersigned to review them.

As this Court has explained:

“[A] district court’s review of any discovery-related decisions made by the

magistrate judge is governed by Rule 72(a) of the Federal Rules of Civil

Procedure[.]” Weeks v. Samsung Heavy Indus. Co. Ltd., 126 F.3d 926, 943 (7th

Cir. 1997). Pursuant to Rule 72(a), a party may file an objection to a magistrate

judge’s decision on a non-dispositive pre-trial matter within 14 days.2 “The

■ 1 The Court enters this order notwithstanding that Defendants have not had an opportunity

to file a response to Black’s objections. The undersigned can modify or set aside any part of the

Magistrate’s order that is clearly erroneous or contrary to law. Judge Collins’ order is neither.

Black’s objections are unfounded and a response brief from Defendants is unnecessary.

2 The Court notes that Black’s objection was filed on February 8, which was 20 days after

Judge Collins entered her order. Given Plaintiff s pro se status, the Court will forgive her failure

to file her objection within 14 days (which would have been February 2). And given the Court’s

conclusion that Black’s objections must be overruled, the Defendants are not prejudiced by the

132.

USDC IN/ND case l:19-cv-00307-WCL-SLC document 86 filed 02/15/21 page 3 of 6

district judge in the case must consider timely objections and modify or set aside

any part of the order that is clearly erroneous or is contrary to law.” Fed. R. Civ.

P. 72(a); see also 28 U.S.C. § 636(b)(1)(A). “The clear error standard means that

the district court can overturn the magistrate judge’s ruling only if the district

court is left with the definite and firm conviction that a mistake has been made.”

Weeks, 126 F.3d at 943.

Marinov v. United Auto Worker, No. 4:18-CV-59, 2020 WL 6268813, at *2 (N.D. Ind. Oct. 26,

2020).

Black’s “objections” are really just expressions of displeasure with the Magistrate’s

rulings. She devotes most of the space in her pleading (and her accompanying affidavit in support

(ECF No. 85)) complaining that the Court (presumably both Judge Collins and the undersigned)

is not fully and adequately considering her evidence, that the Defendants are lying about

underlying facts, and that she has effectively proven her case. The opening paragraph of

Plaintiffs rambling pleading reads in its entirety as follows:

Plaintiff Sandra Black, Pro Se pleads the court to substantiate the order and

opinion biased against a Pro Se litigant. Since the very beginning of this court, it

has had problems with not having lawyerly submission from a pro se litigant. The

plaintiff, begs the court not to recuse that Judge William C. Lee continues to

preside as judge in this matter and fix the mistakes to make plaintiff whole.3

Plaintiff did not want to prejudice the court, but this bias meant [Plaintiff] loses

her case, NOT ALLOWED DISCOVERY.

Request for Substantiation, p. 1 (all sic). Black obviously believes that the Magistrate’s decision

obstructs her ability to obtain discovery and that the decision was biased against her because she

is a pro se litigant. Black then launches into a long recitation of her'version of the facts, insisting

Court’s decision to deem Black’s filing timely.

3 To be clear, the undersigned has not recused himself from this case and is still the

presiding judge. The case is on partial referral to Magistrate Judge Collins pursuant to 28 U.S.C.

§ 636.

/33

USDC IN/ND case l:19-cv-00307-WCL-SLC document 86 filed 02/15/21 page 4 of 6

that she has proved her claim, that the Defendants are lying about facts, and that the Magistrate’s

order was biased against Black because she is proceeding pro se. Id., generally. In another

portion of her pleading, Black expresses her objections as follows:

JUSTICE should outweigh PETTY always in matters not prohibited by law. Not

understanding words like “Trouble” or “Service” with instructions included. . .

“ANY SERVICE other than JUST YOUR WORDS” It is reasonable the average

person understands you need more than your words, you have it or you don t. The

Defense should use common sense, produce their proof of any “trouble” without

objection so that everyone is on the same page. The admit none, WHY OBJECT?

In "this case, there can be absolutely no fear of discovering trouble later as it could

NOT have possibly been the motive for eviction, thus whey should the court up

hold 100% objections? Pro se plaintiffs concerns has genuinely not been

considered in this court. Substantiate why plaintiff is not allowed discovery of

anything that proves discrimination.

Id., p. 7 (all sic). Magistrate Judge Collins’ order did not and does not deprive Black of her right

to seek and obtain relevant discovery. In her order, Judge Collins parsed through all of Black’s

objections one by one and explained her rulings and reasoning. Judge Collins’ rulings, despite

Black’s objections, were an attempt to keep the discovery process moving forward and she urged

both sides to cooperate in completing discovery. The Magistrate wrote in her order as follows:

Plaintiffs motion to compel (ECF 69) is DENIED. The parties are

ENCOURAGED, however, to work together-especially as it relates to Plaintiff s

Item 1—to narrow their requests and objections. Defendants’ motion to compel

(ECF 72), on the other hand, is GRANTED. Defendants provided proper notice of

Plaintiffs deposition in accordance with Federal-Rule 30. Further, while parties

may object to discovery requests consistent with the Federal Rules of Civil

Procedure, Plaintiff has not identified any legal basis for her refusal to attend her

deposition.

Opinion and Order (ECF No. 80), pp. 24-25. Judge Collins’ order does not deprive either side of

discovery. The order resolved discovery disputes so this case could move forward. As Judge

Collins emphasized in that order, “[djiscovery is a collaborative process between the parties,

USDC IN/ND case l:19-cv-00307-WCL-SLC document 86 filed 02/15/21 page 5 of 6

‘designed to facilitate both the preparation for and the trial of cases.’” Opinion and Order (EOF

No. 80), p. 19 (quoting United States v. Am. Locomotive Co., 6 F.R.D. 35, 37 (N.D. Ind. 1946)).

Absolutely nothing in the Magistrate’s order is clearly erroneous or contrary to law. The

undersigned has carefully reviewed the order and affirms the reasoning and rulings contained

therein.

In addition to her motion to compel, Black filed a pleading captioned “Motion for

Permanent Extension of Time and Reconsideration to Remove any/all Reprimand by

ADMONISHMENT due to Email Submissions” (ECF No. 78). Magistrate Judge Collins denied

that motion in an Opinion and Order entered on December 2, 2020 (ECF No. 79). In her present

“Request for Substantiation” Black objects to that ruling by Judge Collins also. Request for

Substantiation, pp. 3-4. Black had sought a “permanent time extension throughout the

proceedings^” and requested that Judge Collins “remove” an admonishment contained in yet

another order issued by Judge Collins, this one entered on November 9, 2020 (ECF No. 74). In

that order, Judge Collins explained that Plaintiff had engaged in ex parte communications with

the Court via email-something the Magistrate had cautioned Black about previously. That

November 9 order reads, in its entirety, as follows:

On November 9, 2020, the courtroom deputy clerk received the attached

email from pro se Plaintiff requesting an extension of time to file a reply brief in

support of her motion to compel. (ECF 69). As the Court explained in its October

30, 2020, Order, “a request for a court order must be made by motion.” (ECF 70

at 1 (citation and internal quotation marks omitted)). Further, the Court cautioned

the parties that it “will not consider, or respond to, ex parte communications to the

Court or its staff.” (Id.). Accordingly, any relief requested in Plaintiffs

email is summarily DENIED.

Plaintiff is again ADMONISHED that she must file any request for relief

to the Court as a motion on the record. Plaintiff is FOREWARNED that if she

P fT

■ |3S^

USDC IN/ND case l:19-cv-00307-WCL-SLC document 86 tiled 02/15/21 page 6 of 6

continues to disobey the Court’s Orders, she risks possible sanctions up to and

including the summary dismissal of her case. See Fed. R. Civ. P. 37; see also

Ladien v. Astrachan, 128 F.3d 1051, 1057 (7th Cir. 1997) (upholding the

dismissal of a case in part because of the plaintiff “communicating directly with

the Court on two separate occasions-the second in direct violation of the court’s

order that he should not do so”).

Court Order (ECF 79). Black was offended by the admonishment and asked the Magistrate to

“remove” it, which Judge Collins refused to do in her December 2 order. Putting aside the

untimeliness of Black’s objection to the Magistrate’s December 2 order, her objection is

unfounded. There is nothing to “remove” here. The admonishment contained in the Magistrate’s

order (which, by the way, Judge Collins issued to both “the parties,” not just Black), was

intended to stop either side from communicating directly with the Court by way of email and to

ensure that all “requests] for a court order must be made by motion.” There is nothing erroneous

or contrary to law in Judge Collins’ order of December 2, 2020, and Plaintiff s objection to that

order is OVERRULED.

CONCLUSION

For the reasons explained above, the “Request for Substantiation of the Order” filed by

Plaintiff Sandra Black (ECF No. 84) is construed as an objection to Magistrate Judge Collins’

Opinion and Order of January 19, 2021 (ECF No. 80) and her Order of December 2, 2020 (ECF

No. 79) and is OVERRULED.

Date: February 15, 2021.

/s/ William C. Lee

William C. Lee, Judge

U.S. District Court

Northern District of Indiana

Additional material

from this filing is

available in the

Clerk's Office.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.