Opinion
No. 02 C 4522
July 10, 2002
MEMORANDUM OPINION AND ORDER
Plaintiff Michael Dukes brings this complaint against Vel Mar Hotel alleging violations of his civil rights. Along with his complaint plaintiff has filed an application to proceed in forma pauperis. For the following reasons, plaintiff's application is denied and his complaint dismissed.
Under 28 U.S.C. § 1915 (a) the court may authorize a plaintiff to proceed in forma pauperis if he is unable to pay the prescribed court fees. The application here indicates that plaintiff is not employed, has minimal income, and has no savings. On these facts plaintiff has established his inability to pay the court fees.
The court's inquiry does not end with a finding of indigency, however. Under section 1915 we must conduct an initial review of plaintiff's claims and dismiss the action if we find that the action is frivolous or malicious; it falls to state a claim on which relief may be granted; or plaintiff seeks damages from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B)(i)-(iii); Alston v. Debruy, 13 F.3d 1036, 1039 (7th Cir. 1994). This action does not appear to be frivolous or malicious, and we find no immunity issues. Our only inquiry, then, is whether petitioner has properly stated a claim. We apply the same standards as if this were an ordinary dismissal under Fed.R.Civ.P. 12(b)(6). Zimmerman v. Tribble, 266 F.3d 568, 571 (7th Cir. 2000).
Plaintiff brings this action as a civil rights violation. He states that he rented an apartment from defendant on May 8, 2002. On May 28, 2002, plaintiff's water, as well as water in 25 other apartments, was allegedly shut off and has remained off ever since. Under these facts plaintiff has not stated a civil rights violation and we find no violation of federal law.
Plaintiff has successfully made a state claim, however. A warranty of habitability is implied in every oral and written residential lease. Jack Spring v. Little, 50 Ill.2d 351, 366, 280 N.E.2d 208, 217 (1972); Glasoe v. Trinkle, 107 Ill.2d 1, 479 N.E.2d 915 (1985). A landlord fulfills this warranty by complying with local building codes. Id. Tenants may enforce this warranty in affirmative law suits or in defense to eviction actions based on their non-payment of rent. Under the Chicago Residential Landlord and Tenant Ordinance a landlord must maintain hot and cold running water. See Ordinance Sections 5-12-070, 5-12-110. While hotels are generally exempted from the ordinance's provisions, they will fail under its scope if a dwelling unit has been occupied by a tenant for 32 or more continuous days and tenant pays a monthly rent. Section 5-12-020. Plaintiff has alleged that he has been living at the Vel Mar Hotel since May 8, 2002 and paid monthly rent. On these facts plaintiff has stated a violation of a local housing ordinance. This claim is one which is more properly brought in state court.
Accordingly, we deny plaintiff's application to proceed in forma pauperis and dismiss his complaint.