Opinion
Cause No. 1:03-CV-222-TS.
December 3, 2004
MEMORANDUM AND ORDER
This matter is before the Court on a Motion for Summary Judgment [DE 40] filed by Defendant Jim Norris, Allen County Building Department, on May 14, 2004, and a Motion for Summary Judgment [DE 47] filed by Defendants Graham Richard, Barbara Jones, Karen Goldner, Donald Orban, and Gary Baeten (improperly named as Gary Bateman) on May 20, 2004. Also pending is a Rule 56 Motion to Strike [DE 61] portions of the Plaintiff's Affidavit filed in opposition to summary judgment.
PROCEDURAL BACKGROUND
On June 17, 2003, the Plaintiff, Annie Lee Bryant, filed her pro se Complaint under 42 U.S.C. § 1983 against various city and county officials: Mayor Graham Richard, City of Fort Wayne; Barbara Jones, Director of Housing and Neighborhood Development Services, Inc. (HANDS); Karen Goldner, Executive Director of Community Development Corporation (CDC); Donald Orban, Historic Preservation Planner; Gary Baeten, Director of Neighborhood Code Enforcement (NCE) (the City Defendants); and Jim Norris, Director of the Allen County Building Department. The Plaintiff alleged that Defendant Richard "allowed federal laws regarding equal participation under the law to be abridged." (Compl. at 7.) She asserted that Defendant Jones excluded the Plaintiff "from entrepreneurial participation in funding, returning thousands of dollars back to the federal government, earmarked for equal participation based on collusion and inside secret agenda designed to circumvent 14th Amendment rights of the Plaintiff." (Compl. at 7.) The Plaintiff alleged that Defendant Goldner developed a plan to confiscate and takeover and "through insider collusion caused Jim Norris . . . and Gary Bateman [sic] . . . to demolish" her property. (Compl. at 7.) The Plaintiff's claim against Defendant Orban is that he led her to believe that she was fulfilling guidelines and procedures for equal participation . . . only to find that [she] was being set up for hidden rules of demolition created to destroy Plaintiff's property and exclude Plaintiff from equal participation under the 14th Amendment." (Compl. at 7-8.) The Plaintiff does not indicate whether she is pursuing her claims against the Defendants in their individual or official capacities.
On August 6, 2003, the City Defendants filed their Answer and Affirmative Defenses. On August 11, 2003, Norris filed his Answer and Affirmative Defenses. On August 28, 2003, counsel for the Plaintiff entered his appearance. On October 6, 2003, the Report of Parties' Planning Meeting was filed establishing deadlines to govern the case: November 21, 2003, set as the last date for the Plaintiff to seek leave to join additional parties or to amend pleadings; April 9, 2004, set as the discovery deadline, and; May 14, 2004, set as the dispositive motion deadline.
On May 14, 2004, Norris, Allen County Building Department, moved for summary judgment. On May 20, 2004, after receiving relief from the dispositive motion deadline, the City Defendants moved for summary judgment. On May 24, 2004, the Plaintiff's counsel moved to withdraw his representation. On May 25, 2004, the Court denied counsel's motion and advised that the Plaintiff's response to the pending motion for summary judgment should be filed within thirty days. On June 18, 2004, new counsel entered an appearance for the Plaintiff. Neither the Plaintiff's new counsel nor her original counsel filed a response within thirty days.
On August 6, 2004, the Defendants moved to continue the pretrial conference and trial to give the Court ample time to rule on their unopposed motions for summary judgment. On August 17, 2004, the Court held a telephone status conference to rule on the Defendants' motion to continue and address the Plaintiff's failure to respond to the motions for summary judgment. The Court granted an oral motion to withdraw and to substitute new counsel, made by the Plaintiff's original attorney of record, and granted the Defendants' motion to continue pretrial and trial deadlines. The Court set a summary judgment briefing schedule.
On September 3, 2004, the Plaintiff responded to the Defendants' motions for summary judgment. On September 14, 2004, the City Defendants replied and filed a motion to strike evidence that the Plaintiff relied on in her response. Norris also filed a reply on this date.
SUMMARY JUDGMENT STANDARD
The Federal Rules of Civil Procedure mandate that motions for summary judgment be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). Rule 56(c) further requires the entry of summary judgment, after adequate time for discovery, against a party "who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). "[S]ummary judgment is appropriate — in fact, is mandated — where there are no disputed issues of material fact and the movant must prevail as a matter of law. In other words, the record must reveal that no reasonable jury could find for the non-moving party." Dempsey v. Atchison, Topeka, Santa Fe Ry. Co., 16 F.3d 832, 836 (7th Cir. 1994) (citations and quotation marks omitted). "`Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.'" Abrams v. Walker, 307 F.3d 650, 653 (7th Cir. 2002) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
In viewing the facts presented on a motion for summary judgment, a court must construe all facts in a light most favorable to the non-moving party and draw all legitimate inferences in favor of that party. NLFC, Inc. v. Devcom Mid-Am., Inc., 45 F.3d 231, 234 (7th Cir. 1995); Doe v. R.R. Donnelley Sons Co., 42 F.3d 439, 443 (7th Cir. 1994). A court's role is not to evaluate the weight of the evidence, to judge the credibility of witnesses, or to determine the truth of the matter, but instead to determine whether there is a genuine issue of triable fact. Anderson, 477 U.S. at 249-50; Doe, 42 F.3d at 443.
MOTION TO STRIKE
Northern District of Indiana Local Rule 56.1 provides that the moving party's "Statement of Material Facts" and the opposing party's "Statement of Genuine Issues" must be supported by appropriate citations to discovery responses, depositions, affidavits, and other "admissible evidence." If the moving party follows this standard, the Court assumes its claimed facts exist, without controversy, except to the extent that such facts are controverted in the Plaintiff's Statement of Genuine Issues, as supported by admissible evidence. L.R. 56.1(b). The majority of the Plaintiff's factual assertions provided in her "Statement of Material Facts" — which should have been a "Statement of Genuine Issues" — are supported by citations to her own Affidavit. The County Defendants challenge many of these statements as inadmissible under Rule 56(e) of the Federal Rules of Civil Procedure.
Rule 56(e) requires that affidavits supporting or opposing summary judgment
shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. . . . [T]he adverse party's response [to the motion], by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.
A court may only consider those parts of an affidavit that satisfy the requirements of Rule 56(e). Adusumilli v. City of Chicago, 164 F.3d 353, 359 (7th Cir. 1998).
Thus, one requirement is that affidavit testimony must concern matters within the affiant's personal knowledge. Id.; see also Fed.R.Evid. 602 ("A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter."). "[A]lthough personal knowledge may include reasonable inferences, those inferences must be `grounded in observation or other first-hand personal experience. They must not be flights of fancy, speculations, hunches, intuitions, or rumors about matters remote from that experience.'" Payne v. Pauley, 337 F.3d 767, 772 (7th Cir. 2003) (quoting Visser v. Packer Eng'g Assoc., 924 F.2d 655, 659 (7th Cir. 1991) (en banc)).
Rule 56(e) also has a specificity requirement. Id. (citing Rule 56(e) language that nonmoving party must "set forth specific facts showing that there is a genuine issue for trial"). Conclusory allegations that are not supported by specific facts cannot defeat a motion for summary judgment. Payne, 337 F.3d at 773 (citing Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888 (1990)); see also Albiero v. City of Kankakee, 246 F.3d 927, 933 (7th Cir. 2001) (Rule 56 demands something more than a bald assertion of the general truth of a particular matter and requires affidavits that set forth specific concrete facts establishing the existence of the truth of the matter asserted) (citing Drake v. Minn. Mining Mfg. Co., 134 F.3d 878, 887 (7th Cir. 1998)).
Certain statements in the Plaintiff's Affidavit lack specificity and are not supported by personal knowledge. Examples include: paragraph eight, "the City embarked on a campaign to thwart the improvement efforts of the largely African-American community that owned and resided in ECN;" paragraph twenty-four, "I spent more than 2 years attempting to surmount the pretextual funding barriers erected by C.D.C. and H.A.N.D.S., and fighting the illegal retaliatory campaign by Neighborhood Code Enforcement." Although the Court will not address the Plaintiff's twenty-eight paragraph Affidavit line by line, it will consider the admissibility of any statements, in accordance with the above stated principals, as necessary to determine whether genuine issues of material fact preclude summary judgment. This Court will not rely on any statements that fail to comport with the rules governing the admissibility of affidavit testimony.
Another limitation on affidavit testimony is that it may not rely on hearsay that would not be admissible at trial. See Eisenstadt v. Centel Corp., 113 F.3d 738, 742 (7th Cir. 1997) ("[H]earsay is inadmissible in summary judgment proceedings to the same extent that it is inadmissible in a trial."). Federal Rule of Evidence 802 generally bars the admission of hearsay (a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted). However, Rule 801 defines some statements as non-hearsay, and Rules 803 and 804 list exceptions to the hearsay rule. The party offering evidence based on hearsay may not rely on that evidence unless it demonstrates that it falls under an exception. Boyce v. Moore, 314 F.3d 884, 889 (7th Cir. 2002).
The Defendants argue that paragraph twenty-five contains hearsay within hearsay. In that paragraph, the Plaintiff asserts that Ed Griffin, a NCE inspector, told her that the Code Enforcement action and demolition of her property came about because she "made someone in power mad." Because questions exist regarding whether that statement can be attributed to a party-opponent, see Fed.R.Evid. 801(d)(2), the Court declines to strike the statement as inadmissible hearsay.
However, as discussed infra, the Plaintiff's Affidavit testimony regarding Griffin's statement is woefully inadequate to create a genuine issue of material fact whether the Defendants targeted her building in retaliation for her public expression.
The Defendants also contend that paragraph 19 of the Plaintiff's Affidavit, which relies on the statement of Gary Gruver, should be stricken. The Plaintiff attempts to get Goldman's statement into evidence through Gruver because the Plaintiff did not hear the alleged comments. Gruvner writes in his statement that Goldman told him, "Gary, it has been my finding that most Black people starting a business fold up and go broke in less than a year. I don't give money to Black people." (Pf.'s Ex. 12, ¶ 6.) However, Gruvner's self-titled "Verified Statement" is not notarized and cannot invoke the exception in 28 U.S.C. § 1746, which permits unsworn statements if they are made"under penalty of perjury" and verified as "true and correct." Gruvner submits that the facts in his statement are true, but he does not do so under penalty of perjury. This Court cannot consider Gruvner's unsworn statement in considering the summary judgment motions. Without Gruvner's statement, the attached letter Gruvner wrote to an unnamed person describing what Goldner told him is not properly authenticated and is also inadmissible.
The Court will discuss portions of the Plaintiff's Affidavit in more detail in the remaining sections of this Memorandum and Order.
FACTUAL BACKGROUND
A. The Plaintiff
In November 1999, the Plaintiff, a female African-American, purchased real estate located at 806 East Lewis Street in Fort Wayne, Indiana. The building at this address consisted of two interconnected structures that had been used as a restaurant and a residence. The Plaintiff wanted to renovate the building to establish a group home and restaurant. To fund this project, the Plaintiff applied for grants and loans from the CDC, HANDS, and the Planning Department of the City of Fort Wayne Division of Community Economic Development.
The property is located in an area of Fort Wayne known as the East Central Neighborhood (the ECN). The Plaintiff also lives in the ECN and was active in her neighborhood association. In January 2000 and mid-February 2000, the Plaintiff requested information from NCE regarding demolition data and the number of contracts given to Willie Oxendine, a minority contractor. The Plaintiff believed that the City wrongly excluded Oxendine from participating in contracting opportunities. In February 2000, the Plaintiff testified in support of Oxendine at a Board of Zoning Appeals hearing.
In February 2001, the Plaintiff spoke out against the City's plans for redevelopment in the ECN, including plans to exercise its power of eminent domain. The Plaintiff attended meetings and distributed pamphlets opposing the City's plan.
B. Don Orban/Historic Preservation Challenge Grant
Don Orban is a Historic Preservation Planner with the Division of Community Economic Development of the City of Fort Wayne. The Division has a program that provides up to $40,000 in grant money for facade work on a historically significant building.
In 2000, the Plaintiff contacted Orban to request a historic facade grant. On August 15, 2000, Orban wrote to advise the Plaintiff that her East Lewis Street building was a good candidate for the grant. Orban explained the reimbursement basis upon which the grant program operated and the need for a financial commitment letter or statement from the Plaintiff's bank. Before the Plaintiff signed any contract or became eligible for reimbursement, the East Lewis building was demolished. Orban had no communication with, or involvement in, the Allen County Building Department's decision to condemn or demolish the building.
C. Karen Goldner/CDC
Karen Goldner was Executive Director of the Community Development Corporation of Fort Wayne. In February 2000, the Plaintiff applied for a $54,000 loan through CDC's facade rehabilitation program. Matt Blair acted as the Loan Officer for the Plaintiff's application.
The CDC Board of Directors, which is composed of members of the community, reviews loan applications and has the sole authority to approve a loan request. As is the policy of the CDC, a Finance Sub-Committee reviews every loan proposal before it is presented to the Board. In addition, a Building Sub-Committee visits any building that is to serve as collateral for a CDC loan. These sub-committees reviewed the Plaintiff's loan application and visited her property and reported their findings to the Board.
One of the requirements for obtaining a loan through the facade rehabilitation program is that the owner of the building demonstrate the ability to complete the project and repay the loan. During an April 12, 2000, meeting, the Board discussed the Plaintiff's loan application and renovation project and decided to table the loan until its May 10 meeting because it had concerns with the project. The Board noted the Plaintiff's lack of restaurant experience, felt she had underestimated the scope of the project and the cost required to complete the renovation, and was concerned with her lack of detail regarding how the residential program would be organized. Goldner wrote a letter to the Plaintiff detailing the Board's concerns and the specific documentation that the Board believed would address these concerns. Goldner assured the Plaintiff that if she submitted this documentation by April 28, 2000, Goldner would provide the information to the Board at its May 10 meeting.
When the Board considered the Plaintiff's loan application again on May 10, 2000, the Board concluded that the Plaintiff had not provided the documentation it requested and declined to approve her loan. No further action was taken on the loan.
D. Barbara Jones/HANDS
Barbara Jones is Administrator of Housing and Neighborhood Development Services, Inc., a non-profit corporation operated under the umbrella of the Community Economic Development Department of the City. HANDS provides home repair loans and grants to low and moderate income homeowners and forgivable loans to landlords who rent to low and moderate income tenants. HANDS receives its monies from the United States Department of Housing and Urban Development (HUD) and must comply with all HUD requirements in the administration of its loan and grant programs. One requirement is that an applicant have sufficient money or financial commitments from all sources combined to be able to complete the repair project to HUD standards. HANDS funds cannot be used for commercial projects.
In 1998, the Plaintiff applied for, and was granted, a loan and grant to make repairs and improvements to her personal residence. In March 2001, the Plaintiff applied for a rental rehabilitation loan for the 806 East Lewis Street building. A Construction Specialist from HANDS estimated the costs for repairs on the residential portion of the property at $226,766. Jones approved the Plaintiff for a $26,000 five year forgivable loan contingent upon the Plaintiff obtaining funding for the balance of funds needed to complete the project.
The Plaintiff never provided evidence of commitments which, along with the funds committed by HANDS, would have been sufficient to complete the project as required by HUD. The loan was not closed before the Allen County Building Department demolished the building. After the demolition, HANDS withdrew its $26,000 commitment.
E. Gary Baeten/NCE
Neighborhood Code Enforcement is a department of the City responsible for the enforcement of the Fort Wayne Safe Housing and Building Standards as contained in City ordinance. NCE does not have any connection with the Allen County Building Department.
In late September 2000, NCE enforcement officer Noble Schlatter observed the unsafe condition of the building at 806 East Lewis Street. At this time, Schlatter did not know who owned the property. On August 5, 2000, Schlatter wrote a letter to the Plaintiff notifying her that the building was in violation of Fort Wayne's Safe Housing and Building Standards. He cited: extensive deterioration of exterior trim boards, which was evidence by rot, missing paint, and exposed wood surfaces; deterioration of the exterior siding, as evidence by scaling paint and exposed wood surfaces; and extensive deterioration of the foundation, as evidenced by loose and missing mortar. NCE did not receive a response to the letter and, on December 11, 2000, issued a citation to the Plaintiff. On December 28, 2000, the Plaintiff filed an appeal to the Citizens Appeal Board and represented that the work would be completed by August 2001. As a result, the Plaintiff was granted an extension and a hearing was scheduled for August 2, 2001. Schlatter visited the property at least three times to monitor the progress and found that no work was being done to correct the violations.
In April 2001, Ed Griffin became an enforcement officer and assumed responsibility for the area that included 806 East Lewis Street. The Plaintiff filed an appeal of her citation but failed to appear at the Citizens Appeal Board hearing. A second citation and appeal ensued. The Plaintiff again failed to appear. The Appeals Board affirmed NCE's actions. On January 10, 2002, Norris issued a third citation. Upon a complaint alleging violation of City ordinance, the Plaintiff appeared in court and admitted the violations. Before the August 28, 2002, status conference could be conducted in that cause of action, the property was demolished.
Gary Baeten, the Administrator of NCE, had no personal involvement in the NCE enforcement activities at 806 East Lewis Street.
F. Jim Norris/Allen County Building Department
The Allen County Building Department is responsible for enforcing State and County building codes for the protection of life, limb, health, environment, public safety, and welfare. Allen County has adopted Indiana's Unsafe Building Act.
Roger Clark was the chief building inspector for the Building Department. In Spring 2002, he inspected the Plaintiff's building at 806 East Lewis Street after a building permit was pulled for a commercial structure at that address. Clark noticed that the building was in an unstable and unsafe condition because it had been gutted down to the wall studs and nearly sixty percent of the foundation was missing. Most of the first floor joists and sill plates were unsupported and the house was held up only by the second floor joists and the roof. Clark felt that the house could have collapsed onto Lewis Street of the house next door and therefore, posed an immediate danger to life, safety, and property.
Because the building was an immediate threat to life, safety, and property, on April 16, 2002, Clark wrote to the Plaintiff to inform her of the building's condition and gave her until 4:00 p.m. the next day to provide competent evidence that the house did not actually present an imminent danger. In the letter, Clark warned that the house would be demolished if she did not provide such evidence. At the Plaintiff's request, Clark postponed the demolition and scheduled a meeting with the Plaintiff and her architect. The architect and the Plaintiff's engineer also expressed concern about the structural integrity of the house. After the meeting, Clark agreed to further delay demolition on the condition that the Plaintiff immediately hire a licensed contractor to work on the house until its structural integrity was restored.
After visiting the house and observing that it still remained in a dangerous and unstable condition, the Building Department issued a Notice to Demolish or Repair and scheduled a hearing. The Plaintiff attended the hearing and was given another chance to restore the structural integrity of the house. The Building Department issued yet another Notice, held another hearing, and postponed demolition once again. The dangerous condition of the house remained unchanged and, after the third Notice and hearing, it was demolished on July 1, 2002.
The Plaintiff does not dispute that the property was in a condemnable state. Indeed, she maintains, "The Defendant's argument that the Property was structurally unsound placed the cart before the horse. The very reason that the property had reached the state it was in was because the Defendants acted unlawfully in denying applications for funds and in pursuing code violations in the midst of the renovation project." (Pf.'s Aff., ¶ 32.)
DISCUSSION
In their summary judgment briefs, the Defendants address the insufficiencies of the various causes of action that they believe the Plaintiff to be alleging in her pro se Complaint. In Norris's Motion for Summary Judgment, he argues that the material facts demonstrate, as a matter of law, that he did not violate the Plaintiff's Fourteenth Amendment right to due process or equal protection, or engage in an unlawful taking. To the extent the Plaintiff's Complaint asserted a claim against Norris in his official capacity, he argues that the government entity was also entitled to summary judgment. The City Defendants submit that the Plaintiff's race-based equal protection claim under 42 U.S.C. § 1983 and her conspiracy claim under 42 U.S.C. § 1985(3) fail as a matter of law.
In her response, and for the first time in this litigation, the Plaintiff asserts that the Defendants conspired against her in retaliation for exercising her First Amendment right to free speech and public expression. She also contends that she was discriminated against because she is black. The Plaintiff did not specify her race in her Complaint. The Defendants argue that the Plaintiff's newly asserted claims should be struck as an improper attempt to amend her Complaint through arguments in her brief in opposition to summary judgment. See Whitaker v. T.J. Snow Co., 151 F.3d 661, 664 (7th Cir. 1998); Speer v. Rand McNally Co., 123 F.3d 658, 665 (7th Cir. 1997). The Defendants then address the merits of the Plaintiff's claims.
Notwithstanding the Plaintiff's failure to properly amend her Complaint and her inappropriate use of summary judgment to advance new claims, the Court will decide whether the Defendants are entitled to summary judgment on the Plaintiff's First Amendment and equal protection claims.
A. Individual or Official Capacity
Section 1983 creates a cause of action based on personal liability and predicated on fault. Vance v. Peters, 97 F.3d 987, 991 (7th Cir. 1996). Liability does not attach unless the individual defendant caused or participated in a constitutional deprivation. Id. If a municipality is sued under § 1983, it cannot be held liable under a theory of respondeat superior. Rasche v. Village of Beecher, 336 F.3d 588, 597 (7th Cir. 2003) (citing Palmer v. Marion County, 327 F.3d 588, 594 (7th Cir. 2003)). Rather, the deprivation must have been caused by a municipal policy or custom, which can take three forms: (1) an express policy that when enforced, causes a constitutional violation; (2) a widespread practice that, although not authorized by written law or express municipal policy, is so permanent and well settled as to constitute a "custom or usage" with the force of law; or (3) an allegation that the constitutional injury was caused by a person with final policymaking authority. Rasche, 336 F.3d at 597-98 (quoting Palmer, 327 F.3d at 594-95).
The Plaintiff has abandoned any claims against the Defendants in their official capacities. In her response in opposition to summary judgment, the Plaintiff cites only the standard for individual liability under § 1983. In addition, although the Plaintiff repeatedly refers to actions of "the City" in her statement of facts, she makes no allegation that a municipal policy or custom, in any of the three forms, caused her deprivation.
B. First Amendment Retaliation
Action taken in retaliation for the exercise of a constitutionally protected right violates the Constitution. Morfin v. City of East Chicago, 349 F.3d 989, 1005 (7th Cir. 2003) (citing DeWalt v. Carter, 224 F.3d 607, 618 (7th Cir. 2000)). To establish a prima facie case of First Amendment retaliation, a plaintiff must demonstrate that her speech was constitutionally protected and was a substantial or motivating factor in the defendant's actions. Morfin, 349 F.3d at 1005; Rasche, 336 F.3d at 596-97. "The protected conduct cannot be proven to motivate retaliation if there is no evidence that the defendants knew of the protected activity." Morfin, 349 F.3d at 1005 (quoting Stagman v. Ryan, 176 F.3d 986, 1000-01 (7th Cir. 1999) and O'Connor v. Chicago Transit Auth., 985 F.2d 1362, 1369-70 (7th Cir. 1993) (internal quotations and alterations omitted).
If the plaintiff can show that her constitutionally protected speech was a substantial or motivating factor, the defendants must show that they would have taken the same action in the absence of her exercise of her First Amendment rights. Rasche, 336 F.3d at 597. If the defendants meet this burden, the plaintiff has the burden of persuasion to show that the defendants' proffered reasons were pretextual and that the retaliation was the real reason for the defendants' action. Id.
The Plaintiff alleges that she was denied funding and her house was demolished in retaliation for her outspokenness against the City, particularly its efforts to redevelop the ECN and its treatment of Oxendine. The Plaintiff cannot establish a prima facie case of retaliation because she cannot demonstrate that the Defendants' actions were motivated by her speech.
To show that the Defendants were aware of her speech, the Plaintiff cites to a chain of emails in which various individuals discuss her request for information on demolition bids and the best way to obtain the requested information. She also states that a Fort Wayne public television station replayed clips of comments she made at a Board of Zoning Appeals hearing.
The unauthenticated e-mail shows only that Dee Densel, Carl Wilson, Patty Coffelt, and Chuck Bailey were aware that the Plaintiff requested contractor bid summaries on all demolition projects for 1998 and 1999. None of these individuals are named as Defendants. The request and the e-mail do not support the Plaintiff's statement that her "outspokenness had not gone unnoticed by personnel at the Fort Wayne City-County building." The e-mail establishes only that individuals unrelated to this lawsuit were aware that the Plaintiff sought information on demolition bids. There is no evidence that they even knew why the Plaintiff requested the information or what she planned to do with it. Although the Plaintiff points out that, in the e-mail, she is referred to as "Ann from East Central," she does not state how this proves that the Defendants were aware of her public expression against the City.
The Plaintiff's statement that her comments were "well-publicized due to a Fort Wayne public television station replaying clips from her hearing testimony" is also insufficient to establish that the Defendants knew of her activity. The Plaintiff's contention that the testimony was "well-publicized" is a conclusion unsupported by specific facts regarding which comments were broadcast, who broadcast them, how often, and when. The Plaintiff does not even provide evidence that she has personal knowledge of these broadcasts, either from viewing them herself or otherwise. Thus, the Plaintiff's statement is not the kind of evidence the Court can consider on summary judgment. Adusumilli v. City of Chicago, 164 F.3d 353, 359 (7th Cir. 1998). Even if the Court accepted as true the Plaintiff's statement that her comments were well-publicized, the Plaintiff does not establish that any of the Defendants actually viewed the local, public television broadcast that purportedly replayed clips of her testimony.
For their part, Defendants Orban, Goldner, and Jones submit verified statements denying that they had any knowledge of the Plaintiff's public expression. Orban states that he had never heard of Oxendine's disputes with the City and was wholly unaware that the Plaintiff had spoken on any issues of public importance. (Orban Supp. Verified Statement, ¶¶ 4, 5.) Goldner states that she was "completely unaware of any disputes or issues regarding the African-American contractor. I was also unaware of Ms. Bryant's involvement in the East Central Neighborhood opposition to the Redevelopment Commission plans." (Goldner Supp. Verified Statement, § 13.) Jones states that she was unaware of any of the Plaintiff's efforts to oppose redevelopment in the ECN or of her efforts on behalf of Oxendine. (Jones Supp. Verified Statement, ¶ 4.)
To support her retaliation claim against Norris, the Plaintiff argues that Norris and the Allen County Building Department "almost immediately began targeting Plaintiff's Property after [her] speech" involving matters of public concern. (Pf.'s Br. at 9.) The facts do not support this conclusion. By the Plaintiff's account, she spoke out against the City in February 2000 (regarding Oxendine) and February 2001 (regarding ECN redevelopment). She did not receive notice regarding demolition until April 2002.
As to Baeten, the former administrator of NCE, the Plaintiff does not allege that he had any personal involvement in NCE's actions at 806 East Lewis Street. Enforcement officers Noble Schlatter and Ed Griffin, who were involved with enforcement at 806 East Lewis Street, confirm that Baeten had no personal involvement in NCE's citations. The Plaintiff does not mention Schlatter, but refers to Griffin when she states in her Affidavit that he "told Plaintiff that the Code Enforcement action and demolition of her Property came about because I `made someone in power mad.'" (Pf.'s Aff., ¶ 25.) The Plaintiff does not indicate when Griffin made this statement or who was purportedly mad. In addition, the only portion of the statement that is actually attributed to Griffin — "made someone in power mad" — does not even specify what the third party was mad about. Griffin, in his verified statement, adds context to the statement:
I was at the 806 East Lewis Street property on the day that it was demolished. At the time, in jest, I said something to Annie Bryant to the effect that "boy, you must have made someone mad." However, I made this statement merely in joking way to Ms. Bryant, with whom I believed I had a good rapport. I certainly never thought she would take the comment seriously and, as I stated before, no one ever asked me to take enforcement action against Ms. Bryant's property.
(Griffin Verified Statement, ¶ 15.)
Griffin's account is consistent with the Plaintiff's; it is only the Plaintiff's interpretation of the meaning of Griffin's statement that differs. Griffin said the comment in jest and the Plaintiff took it literally. Even if the statement, as interpreted by the Plaintiff, is taken as true (that her home was demolished because she made someone mad), it fails to establish who was mad or what they were mad about. It is only the Plaintiff's speculation that connects the statement to her speech from a year earlier. See Bell v. Duperrault, 367 F.3d 703, 707 (7th Cir. 2004) (inferences that are supported by only speculation or conjecture will not defeat a summary judgment motion). Griffin's statement does not support the Plaintiff's conclusion that the Defendants retaliated against her for engaging in community activism and she has not established a prima facie case of First Amendment retaliation.
The Plaintiff does not dispute the Defendants' facts establishing that the building posed a danger and that the NCE citation and Building Department demolition were taken in accordance with City ordinance and state and county building codes. Thus, even if the Plaintiff could establish a prima facie case of retaliation, she has not shown that the Defendants' actions were a mere pretext for retaliation.
The Plaintiff has abandoned any claim against the City of Fort Wayne mayor, Graham Richard. She does not mention Richard or the mayor's office in her brief in opposition to summary judgment. In her Complaint, she alleges only that he "allowed federal laws" to be violated. There is no basis for personal liability against Richard. See Vance, 97 F.3d at 991.
Because the Plaintiff has not produced any evidence that the Plaintiff's speech motivated the Defendants' actions, the Plaintiff cannot make out a prima facie case of First Amendment retaliation and the Defendants are entitled to summary judgment.
C. Equal Protection
To prevail on her equal protection claim, the Plaintiff must offer direct proof of discriminatory intent or circumstantial evidence of such intent. Williams v. Senif, 342 F.3d 774, 788 (7th Cir. 2003). The latter approach uses a burden-shifting paradigm. To establish a prima facie case of racial discrimination under the Fourteenth Amendment a plaintiff must show that she is a member of a protected class, that she is otherwise similarly situated to members of the unprotected class, and that she was treated differently from members of the unprotected class. McMillian v. Svetanoff, 878 F.2d 186, 189 (7th Cir. 1989). If the plaintiff establishes a prima facie case of discrimination, the burden shifts to the defendant to articulate a legitimate non-discriminatory reason for taking the action. If the defendant articulates such a reason, the burden shifts back to the plaintiff to demonstrate that the proffered reason is merely a pretext for discrimination. Id.
The Plaintiff argues that, because she has provided direct evidence of the Defendants' discriminatory intent by way of Goldner's comment that she does not give money to Blacks, she has established a prima facie case of race discrimination and need not present evidence of disparate impact. The Court takes the Plaintiff to mean that she has direct proof of discriminatory intent and need not rely on the burden-shifting method of proof to survive summary judgment.
The Plaintiff attempts to introduce Goldner's comments through the unsworn statement of Gruver. As discussed supra, Gruvner's statement is not proper evidence for the Court to consider on summary judgment. Even with the benefit of Goldman's statement, the Plaintiff's claim fails on the record before this Court. The statement is irrelevant because Goldman was not the decision-maker on the Plaintiff's loan application. Direct evidence "essentially requires an admission by the decision-maker that his actions were based upon a prohibited animus." Rogers v. City of Chicago, 320 F.3d 748, 753 (7th Cir. 2003) (quoting Radue v. Kimberly-Clark Corp., 219 F.3d 612, 616 (7th Cir. 2000) (emphasis added). Even circumstantial evidence is evidence that allows a jury to infer intentional discrimination by the decision-maker. Rogers, 320 F.3d at 753 (emphasis added); see also Simmons v. Chicago Bd. of Educ., 289 F.3d 488, 492 (7th Cir. 2002) (holding that statements by non decision makers cannot satisfy a plaintiff's burden of proving discrimination). The undisputed evidence is that the Board had sole authority to approve loans. ( See Supplemental Verified Statement of Karen Goldner, ¶ 9; Verified Statement of Michael Mustard, ¶¶ 7, 11). There is no evidence that Goldman influenced the Board's decision or that her comment can be imputed to any of the other Defendants.
The Plaintiff does not point to any evidence that would create a triable issue whether she was discriminated against on the basis of her race. The Plaintiff does not even attempt to identify similarly-situated non-minorities who were treated better. The Plaintiff's equal protection claim does not survive summary judgment.
D. Conspiracy
A conspiracy claim cannot survive summary judgment if the allegations "are vague, conclusionary and include no overt acts reasonably related to the promotion of the alleged conspiracy." Amundsen v. Chicago Park Dist., 218 F.3d 712, 718 (7th Cir. 2000) (quoting Kunik v. Racine, County, Wis., 946 F.2d 1574, 1580 (7th Cir. 1991)). Here, the Plaintiff has not provided any factual allegations to support a reasonable inference that the individual Defendants agreed to any sort of conspiracy. The Plaintiff's bald assertions of concerted activity lack evidentiary support and are insufficient to support a claim that the Defendants conspired to deny the Plaintiff her constitutional rights. The record, taken as a whole, could not lead a rational trier of fact to find for the Plaintiff and there are no genuine issues for trial.
CONCLUSION
For the foregoing reasons, the Defendants' motions for summary judgment [DE 40, 47] are GRANTED. JUDGMENT will be entered for the Defendants and against the Plaintiff. The Defendants' Motion to Strike [DE 61] is GRANTED in part and DENIED in part.
SO ORDERED.