NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued December 11, 2012
Decided December 20, 2012
Before
WILLIAM J. BAUER, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 12‐2378
A.B., a child, by his next friend LINDA Appeal from the United States District
KEHOE, Court for the Northern District of Indiana,
Plaintiff‐Appellant, South Bend Division.
v. No. 3:11‐cv‐163
HOUSING AUTHORITY OF SOUTH Philip P. Simon,
BEND, INDIANA, Chief Judge.
Defendant‐Appellee.
O R D E R
A.B., a minor, lived with his mother, Autumn Oliver, in federally subsidized public
housing in South Bend, Indiana. Oliver received an eviction notice from the Housing
Authority of South Bend after being arrested for possessing cocaine, in violation of a lease
provision that prohibited criminal activity on the property. A.B. sued the Housing
Authority on Oliver’s behalf, alleging violations of the Americans with Disabilities Act
(ADA), the Rehabilitation Act, the Fair Housing Act (FHA), the Fourteenth Amendment,
and Indiana state law. The district court dismissed the federal claims with prejudice and the
remaining state‐law claims without prejudice. We affirm the judgment.
No. 12‐2378 Page 2
Oliver entered into a lease with the Housing Authority in 2005. The lease provides
that the Housing Authority “has a One Strike or ‘Zero Tolerance’ policy with respect to
violations of Lease terms regarding criminal activity” and “[a]ny drug‐related criminal
activity on or off such premises” is grounds for termination of the lease and eviction from
the unit. The lease lists Oliver’s son, A.B., as a household member.
The South Bend police arrested Oliver near her unit on February 28, 2011 and
charged her with cocaine possession. IND. CODE § 35‐48‐4‐6. About three weeks later on
March 22 (before any conviction or other adjudication confirming her drug possession), the
Housing Authority sent Oliver a “Notice to Terminate Lease”; the notice informed her that
she had materially violated the terms of her lease by engaging in drug‐related “criminal
activity” and gave her 30 days to vacate the unit (April 22, 2011).
On April 13, 2011, nine days before the eviction date, Oliver pleaded guilty to
possession of cocaine. The plea agreement stated, however, that if Oliver successfully
completed a substance‐abuse program and otherwise complied with the terms of the
agreement, the prosecutor would (1) allow her to withdraw her plea and (2) move for
dismissal of the case after 18 months. Oliver then entered into a substance‐abuse program.
Notwithstanding Oliver’s entry into the substance abuse program, the Housing
Authority filed an action in Indiana state court seeking enforcement of the eviction and
immediate possession of the unit, because Oliver and A.B. continued to reside in the unit
after the April 22 deadline indicated on the notice. A.B. filed a complaint in the Northern
District of Indiana through his grandmother and next friend, Linda Kehoe, alleging that the
threatened eviction violated state and federal law. The state court then ordered Oliver to
vacate and surrender the unit, and the district court dismissed the federal claims for failing
to adequately allege discrimination; the court, however, invited A.B. to replead. By the time
A.B. amended his complaint in October 2011, Oliver was continuing to participate in, and
was in good standing with, the substance‐abuse program.
In the amended complaint, A.B. alleged that the Housing Authority evicted Oliver
on the basis of her disability—drug addiction—and refused to reasonably accommodate this
disability in violation of the FHA,
42 U.S.C. § 3604(f), the ADA,
42 U.S.C. § 12132, and the
Rehabilitation Act,
29 U.S.C. § 794. A.B. also alleged that the Housing Authority violated the
Equal Protection Clause by intentionally treating Oliver, a class‐of‐one plaintiff, differently
than other similarly situated tenants without a rational basis for the difference. A.B. further
alleged that the Housing Authority’s actions violated the Due Process Clause and Indiana
law. He sought a declaratory judgment, an injunction, attorney’s fees, and both
compensatory and exemplary damages.
No. 12‐2378 Page 3
The district court dismissed A.B.’s amended complaint. The court first concluded
that Oliver was a current drug user when the Housing Authority sent the eviction notice.
Oliver did not fall under the “safe harbor” provisions of those statutes for past drug users,
the court concluded, because the Housing Authority sent the eviction notice in response to
her admitted cocaine use only three weeks prior. And even if Oliver did qualify as a
disabled person, the court stated, the claims under the ADA, Rehabilitation Act, FHA, and
Equal Protection Clause failed because A.B.’s bare legal conclusions did not sufficiently
allege that the Housing Authority acted with discriminatory intent. Finally, the court
determined that A.B.’s requested accommodation of an exception to the one‐strike policy for
Oliver was not reasonable.
On appeal A.B. first argues that the district court erroneously concluded that Oliver
was a “current drug user” when the Housing Authority sent the eviction notice. Current
users of illegal drugs do not qualify as disabled persons1 under the ADA, the Rehabilitation
Act, and the FHA. See
42 U.S.C. § 12210(a) (ADA);
29 U.S.C. § 705(20)(C)(i) (Rehabilitation
Act);
42 U.S.C. § 3602(h) (FHA). An individual is a current drug user if her “drug use was
sufficiently recent to justify [a] reasonable belief that the drug abuse remained an ongoing
problem.” Mauerhan v. Wagner Corp.,
649 F.3d 1180, 1187 (10th Cir. 2011); (internal
quotations omitted); see Zenor v. El Paso Healthcare Sys., Ltd.,
176 F.3d 847, 855–56 (5th Cir.
1999). Although Oliver eventually entered a supervised rehabilitation program in April
2011, and former drug users participating in supervised drug rehabilitation programs may
qualify as disabled persons under the ADA and the Rehabilitation Act, see
42 U.S.C.
§ 12210(b) (ADA);
29 U.S.C. § 705(20)(C)(ii) (Rehabilitation Act), Oliver unfortunately still
qualified as a “current drug user” as of March 22, when the eviction notice was first sent,
three weeks before she entered into the rehabilitation program. She used cocaine on the
premises less than a month before the Housing Authority sent the eviction notice, and her
lease spelled out the Housing Authority’s one‐strike policy, which allowed for immediate
termination of the lease following any drug‐related criminal activity. Given this timing,
from the perspective of the Housing Authority, it had a reasonable belief that her drug
abuse was an ongoing problem at the time it sent the eviction notice in March 22. Oliver
therefore was not considered “disabled” under the ADA, the Rehabilitation Act, and the
FHA.
1
All three statutes prohibit housing discrimination because of a person’s “disability”
or “handicap,” and because the terms are used interchangeably, we use the term “disabled”
to refer to all three acts. See Bragdon v. Abbott,
524 U.S. 624, 631–32 (1998); Stein v. Ashcroft,
284 F.3d 721, 725 n.2 (7th Cir. 2002); Dadian v. Vill. of Wilmette,
269 F.3d 831, 837 (7th Cir.
2001).
No. 12‐2378 Page 4
A.B. also challenges the district court’s conclusion that the amended complaint failed
to allege discriminatory intent, which is a required element of his disparate treatment claims
under the Equal Protection Clause. Chavez v. Ill. State Police,
251 F.3d 612, 645 (7th Cir. 2001).
We agree with the district court that A.B. cannot state a claim through conclusory
allegations that the Housing Authority’s “purported reasons for threatening to evict A.B.
and his mother are illegal or pretextual, and only a cover for discrimination against A.B.’s
mother as an individual with a handicap,” and that it “favored tenants in situations similar
to A.B. and his mother by not evicting those tenants.” See Ashcroft v. Iqbal,
556 U.S. 662,
686–87 (2009); Swanson v. Citibank, N.A.,
614 F.3d 400, 405 (7th Cir. 2010); see also LaBella
Winnetka, Inc. v. Vill of Winnetka,
628 F.3d 937, 941–42 (7th Cir. 2010) (concluding that
restaurant did not state class‐of‐one equal protection claim because it failed to adequately
allege the existence of a similarly situated restaurant).
A.B. argues that it is a reasonable accommodation for the Housing Authority to
provide a tenant a “second chance” opportunity to remain in her dwelling so long as she
immediately seeks treatment for the drug use. See Super v. J. D’Amelia & Assocs., No.
3:09cv831,
2010 WL 3926887, at *6 (D. Conn. Sept. 30, 2010). Though the Housing Authority
reasonably believed that Oliver was a “current drug user” on March 22 when it sent the
initial eviction notice, it went ahead with the eviction proceedings around April 22 even
though Oliver had already entered into a substance‐abuse program by then and she had a
dependent child. At the end of the day, however, we do not reach the issue of “reasonable
accommodation” because under the law, Oliver was not “disabled” given her “current drug
user” status at the relevant time. We are hopeful, especially for the sake of A.B., that Oliver
will not reacquire that status in the future.
AFFIRMED.
