A federal judge has kept alive due process claims of former residents of a lead- and arsenic-tainted housing complex who were abruptly forced to move, though several claims alleging racial discrimination and other causes of action against the city of East Chicago were dismissed.
Northern Indiana District Senior Judge Joseph Van Bokkelen on Tuesday issued an order keeping alive one claim of several that the East Chicago Housing Authority moved to dismiss nearly three years ago. The claims arise from some of the 1,100 former residents of the West Calumet affordable housing complex who were forced to move with little notice in 2016 after dangerously elevated levels of toxins were found on the site in Lake County.
The litigation is one of several suits that asserted claims after residents were forced to relocate. Residents also said they were given little say in the federal cleanup of the West Calumet Superfund site.
In this case, former tenants led by Kendra Mabry alleged intentional racial discrimination and disparate impact by the housing authority under the Fair Housing Act, noting that about 90% of the West Calumet tenants were African American or Hispanic. The proposed class-action suit also alleges due process and equal protection violations under the 14th Amendment, and right to property claims under 42 U.S.C. § 1982.
Van Bokkelen’s order dismissed without prejudice all counts against the housing authority except the constitutional due process claim.
The judge found no grounds to dismiss the due process claim, noting the housing authority defendants “maintain that they had to relocate the Tenants and were considering demolition of the Complex because of potential health risks associated with lead and arsenic identified on the Complex. But surely, whether relocation of the Tenants without a pre-deprivation hearing was necessary under the circumstances described in the complaint — where the Tenants allege, in essence, that the claimed health risks were merely pretext to remove the Tenants in order to accomplish the already-planned demolition of the Complex — is a question of fact that cannot be resolved on a motion to dismiss.”
The order gives plaintiffs 28 days from Tuesday to file an amended complaint. The case is Kendra Mabry, et al. v. City of East Chicago, et al., 2:16-CV-402.