Jones v. Housing Authority City South Bend, 71A03-0902-CV-84.

• Decision Date: 23 October 2009
• Docket Number: No. 71A03-0902-CV-84.,71A03-0902-CV-84.
• Citation: 915 N.E.2d 490
• Parties: Dewayne JONES, Appellant-Defendant/Counter-Plaintiff, v. THE HOUSING AUTHORITY OF THE CITY OF SOUTH BEND, Indiana, Appellee-Plaintiff/Counter-Defendant.
• Court: Indiana Appellate Court

915 N.E.2d 490

Dewayne JONES, Appellant-Defendant/Counter-Plaintiff, v. THE HOUSING AUTHORITY OF THE CITY OF SOUTH BEND, Indiana, Appellee-Plaintiff/Counter-Defendant.

No. 71A03-0902-CV-84.

Court of Appeals of Indiana.

October 23, 2009.

Kent Hull, Indiana Legal Services, Inc., South Bend, IN, Attorney for Appellant.

Joseph Stalmack, Joseph Stalmack & Associates, P.C., Munster, IN, Attorney for Appellee.

OPINION

RILEY, Judge.

STATEMENT OF THE CASE

Appellant-Defendant/Counter-Plaintiff, Dewayne Jones (Jones), appeals the trial court's judgment in favor of Appellee-Plaintiff/Counter-Defendant, The Housing Authority of the City of South Bend (HASB), finding that HASB did not violate Title II of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12131, et seq., or the Rehabilitation Act of 1973, 29 U.S.C. § 701, et seq., when HASB evicted Jones from his apartment.

We affirm.

ISSUES

Jones raises two issues for review, which we restate as follows:

(1) Whether HASB violated Title II of the ADA and the Rehabilitation Act of 1973 when they evicted Jones from his apartment for violating the housekeeping standards in the HASB lease; and

(2) Whether Jones' due process rights were violated when HASB denied Jones a grievance hearing to respond to his eviction notice.

FACTS AND PROCEDURAL HISTORY¹

Jones entered into a dwelling lease with HASB on September 14, 2000. As required by the lease, Jones completed a re-certification process each year to maintain his apartment lease with HASB. Jones completed the housing re-certification process for the year 2004. During his tenancy at the HASB unit, Jones failed to meet the housekeeping standards of the HASB lease and was subsequently placed on probation for failing to keep his apartment clean and safe as required by the lease.

On March 24, 2004, HASB personnel responded to a fire alarm in Jones' apartment. The fire was caused by cigarette butts that had burned through a plastic bag catching a chair on fire inside the apartment. When the HASB personnel entered Jones' apartment they found the unit to be dirty, unsanitary, and in a "deplorable" condition. (Plaintiff's Exhibit 2). On the same day as the fire, HASB issued and delivered a written notice to Jones terminating his lease and giving Jones seven days to file a grievance. On April 1, 2004, Jones attempted to file a grievance with HASB, but he was denied. On that same day Jones also attempted to make a rent payment, which HASB refused.

On April 14, 2004, HASB filed its Notice of Claim and Affidavit for Immediate Possession against Jones in the St. Joseph Superior Court Small Claims Division. On April 20, 2004, Jones filed his Verified Jury Demand and Affidavit of Indigence. The cause was then removed to St. Joseph Superior Court. On June 16, 2004, Jones filed an Answer and Counterclaim alleging violation of the ADA and the Rehabilitation Act of 1973, violation of his due process rights under the Fourteenth Amendment of the United States Constitution and Article 1 § 12 of the Constitution of the State of Indiana, breach of contract, and illegality of contract.

On June 30, 2004, HASB filed a second Affidavit for Immediate Possession relative to Jones' failure to pay rent during the pendency of the April 14, 2004, eviction proceeding. Jones filed a request for jury trial and counterclaim in response to the second eviction proceeding. The counterclaims filed in both eviction proceedings were identical, and the causes were consolidated before the trial court.

On June 6, 2005, HASB filed a motion for summary judgment, to which Jones responded on September 16, 2005. On October 6, 2005, the trial court conducted a hearing on HASB's motion, and on March 28, 2005, the trial court issued an order granting in part and denying in part HASB's motion for summary judgment. The trial court concluded the apartment lease was not illegal, and that HASB satisfied all due process requirements. However, the trial court also determined that Jones is a disabled person as defined by the ADA and the Rehabilitation Act of 1973 and denied HASB's motion for summary judgment regarding Jones' claims under the ADA and Rehabilitation Act of 1973.

The parties agreed to waive jury trial and the case was tried to the bench on April 14, 2008. During the trial, Jones identified his physical ailments as being congestive heart failure, hypertension, asthma or lung problems, and diabetes, which led to the amputation of two of his toes on one foot. However, he testified that he was capable of keeping his apartment clean, although he did not do so. He explained when testifying about his ability to clean: "Well basically in a small apartment nothing is real difficult, it's just getting around the cleaning supplies that I have a problem with.... I can't stand the smell of [bleach and ammonia]." (Transcript p. 162). But later, Jones testified that his limitations "sometimes" affect his ability to clean his apartment. (Tr. p. 168). He testified that sometimes he felt as if he could not get out of bed because his "legs don't want to work." (Tr. p. 168). Additionally, his low blood sugar would sometimes incapacitate him for a while. However, he admitted that at the time of the fire, he was not having any difficulty walking. Furthermore, on cross-examination, Jones testified that his apartment was dirty at the time of the fire because he did not know how to clean, not because of any physical problems he had. Jones presented no evidence of any mental handicap which would have impeded his ability to learn how to clean.

On July 8, 2008, the trial court entered Findings of Facts and Conclusions of Law, ruling for HASB on its claim to evict Jones and against Jones on his counterclaims. The trial court found that Jones was physically capable of cleaning his apartment despite his physical impairments, and his failure to keep his apartment clean was not the result of a physical impairment, but due to his lack of knowledge concerning cleanliness. Also, the trial court found that Jones' claim that he disliked the smell of bleach and ammonia was not a disability as defined by the ADA, and Jones was capable of using cleaning agents other than bleach and ammonia to clean his apartment. Lastly, the court found that HASB did not evict Jones based on any discriminatory intent or perceived disability; therefore, HASB did not violate the ADA or the Rehabilitation Act of 1973.

On August 6, 2008, Jones filed a motion to correct error. Jones' motion to correct error was denied on October 6, 2008.² Jones now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION

I. ADA and Rehabilitation Act

The trial court entered Findings of Fact and Conclusions of Law regarding the ADA and Rehabilitation Act of 1973 claims; therefore, we apply a two-tiered standard of review to consider whether the evidence supports the findings and whether the findings support the judgment. See Weida v. City of West Lafayette, Indiana, 896 N.E.2d 1218, 1223 (Ind.Ct.App.2008). "The trial court's findings and conclusions will be set aside only if they are clearly erroneous, that is, if the record contains no facts or inferences supporting them. A judgment is clearly erroneous when a review of the record leaves us with a firm conviction that a mistake has been made." Id. at 1223. "We neither reweigh the evidence nor assess the credibility of witnesses, but consider only the evidence most favorable to the judgment. We review conclusions of law de novo." Staresnick v. Staresnick, 830 N.E.2d 127, 131 (Ind.Ct.App.2005).

Jones claims that HASB violated both Title II of the American with Disabilities Act of 1990, 42 U.S.C. § 12131 et seq., and the Rehabilitation Act of 1973, 29 U.S.C. § 701, et seq. Title II of the ADA states that "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by such entity." 42 U.S.C. § 12132. Section 504 of the Rehabilitation Act states that "[n]o otherwise qualified individual with a disability ... shall, solely by reason of her or his disability, be excluded from the participation in or be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance." 29 U.S.C. § 794(a). "[A]lthough there are subtle differences between these disability acts, the standards adopted by Title II of the ADA for State and local government services are generally the same as those required under section 504 of federally assisted programs and activities." Henrietta D. v. Bloomberg, 331 F.3d 261, 271 (2nd Cir. 2003), cert. denied, 541 U.S. 936, 124 S.Ct. 1658, 158 L.Ed.2d 356 (2004).

To establish a prima facie claim of discrimination under the Rehabilitation Act and Title II of the ADA, Jones must show: (1) he is disabled as defined by the act; (2) he is otherwise qualified for participation or the benefits sought; (3) he has been excluded from participation or benefits solely because of his disability, and (4) that his housing from which he was evicted was provided by a program receiving federal assistance. See Knapp v. Northwestern Univ., 101 F.3d 473, 478 (7th Cir.1996), cert. denied, 520 U.S. 1274, 117 S.Ct. 2454, 138 L.Ed.2d 212. In addition, Jones must "show that the discrimination was intentionally directed toward him or her in particular." Tucker v. Tennessee, 539 F.3d 526, 532 (6th Cir.2008), reh'g and reh'g en banc denied, petition for cert. filed. There has been no controversy as to whether HASB provides housing pursuant to a program that receives federal assistance. If Jones meets all of these requirements, then the burden shifts to HASB to show that the accommodation provided was either effective, or that the accommodation sought and not provided would have resulted in a fundamental alteration of the procedures or an undue...