Resident Didn't File Retaliation Claim in Time

Facts: A former resident sued the local PHA and its property manager for retaliating against her in violation of the First Amendment for participating in tenant advocacy activities. The resident was involved in organizing tenants at the public housing site from 2010 until 2012 to protest a proposed mandatory drug-testing program for public housing residents.

The first episode of alleged retaliation for her tenant-organizing activities occurred in 2012. The management company, she says, began inspecting her unit frequently and restricting her use of common spaces. The problems worsened after July, when the police responded to a call from the resident complaining about some tenants. Two months later, the management company began proceedings to evict her, accusing her of violating her lease by threatening tenants and a security guard during the July incident. The management company halted its eviction proceedings when the resident agreed in October to refrain from threatening tenants further. Because of this clash, the resident stopped her tenant advocacy in October 2012.

The resident’s conflict with her fellow tenants, however, continued. In February 2013, the resident called the police to report that three residents were threatening her. The residents accused her of threatening them with an ice pick. Turning to state court, the resident and her tenant adversaries petitioned for and received orders prohibiting the resident and her opponents from contacting one another.

The second episode of alleged retaliation began in March 2013. Police officers arrested the resident when two tenants told the police that she had violated the no-contact orders. After a bond hearing, a state judge released her, ruling that there was no probable cause to detain her further, and dismissed the charges. These events led to a second eviction proceeding, in which she represented herself, in April 2013. The management company accused her of violating the terms of her lease by confronting the tenants and punching a security guard. She denied the charges and presented letters from her professors attesting that she was with them at the time of the alleged events. She did not raise a retaliation defense. A judge awarded the management company possession of the premises. She appealed but was unsuccessful.

The resident filed this lawsuit in January 2015. Because two years had passed, the district judge dismissed her claims. The retaliation claims were blocked by a statute-imposed time limit to sue or claim preclusion. The resident appealed.

Ruling: The Seventh Circuit Court of Appeals agreed with the lower court’s ruling.

Reasoning: The resident claimed that in 2012, the PHA retaliated against her. She alleged that they harassed her then by inspecting her unit frequently, restricting her use of facilities, and filing the first eviction suit (later dismissed in 2012) to retaliate against her for organizing tenants. She argued that this claim accrued when she was later evicted in 2013. But the events underlying this claim—the inspections, restricted access, the first eviction suit, and her decision to halt tenant advocacy—occurred at the latest in October 2012. At that time she “knew or should have known” that these actions violated her First Amendment rights. Because the statute of limitations applicable to these cases in her state is two years, she had until October 2014 to file suit. But she didn’t sue until January 2015, so this claim is time-barred.

With regard to her claim that in 2013, to retaliate against her further, the management company filed the second eviction suit and obtained a judgment of eviction, this claim is not time-barred, but it is blocked by claim preclusion. Claim preclusion bars a second suit when the first suit reached a “final judgment.” Claim preclusion is meant to bar (or preclude) continued litigation of a case on the same issues between the same parties where there has been a final judgment.

The eviction suit went to judgment and the claims in both suits were the same (the right to possess the apartment). Her state allowed her to oppose an eviction suit with the defense that the landlord’s motivation is retaliatory. Because the state law allowed her to raise a retaliation defense, claim preclusion applies.

• Milsap v. Habitat Co. LLC, January 2018