MARIO HENRY, as administrator of the estate of Gwyneth E. Henry and as guardian of S.H., a minor; ALYSHIA M. RICHARDSON, as administratrix of the estate of Tyreesha L. Richardson and as guardian of D.R., a minor
CITY OF ERIE; THE HOUSING AUTHORITY OF THE CITY OF ERIE; JOHN E. HORAN; JOSEPH ANGELOTTI; BRETT C. HAMMEL; PATRICIA A. HAMMEL John E. Horan and Joseph Angelotti, Appellants
Argued: September 10, 2012
On Appeal from the United States District Court for the Western District of Pennsylvania D.C. Civil Action No. 1-10-cv-00260 (Honorable Maurice B. Cohill, Jr.)
Joseph M. Kanfer, Esq. (ARGUED) John F. Mizner, Esq. Mizner Law Firm, Counsel for Appellees
Richard A. Lanzillo, I, Esq. (ARGUED) Knox, McLaughlin, Gornall & Sennett, Counsel for Appellants
Before: SCIRICA, ROTH, and BARRY, Circuit Judges.
SCIRICA, Circuit Judge.
In this appeal from a motion to dismiss plaintiffs' § 1983 claim, we must determine whether state officials' approval and subsidization of an apartment for the Section 8 housing program, even though the apartment allegedly failed to comply with Section 8's Housing Quality Standards, constitutes a state-created danger toward the apartment's tenant and her guest in violation of their substantive due process rights under the United States Constitution.
Accepting plaintiffs' plausible factual allegations as true for the purpose of this appeal, we do not find that plaintiffs have adequately pled a state-created danger claim. Accordingly, we will reverse the judgment of the District Court.
On July 25, 2010, a fire at an apartment located at 933 West 18th Street in Erie, Pennsylvania took the lives of tenant Tyreesha L. Richardson and her guest Gwyneth E. Henry. Their bodies were found on the third floor of the apartment, and an autopsy confirmed both women died from smoke inhalation. The third-floor bedroom purportedly lacked a smoke detector and an alternate means of egress—even though the apartment was required to have both safety features under the Section 8 housing choice voucher program in which Richardson participated.
Plaintiff Alyshia M. Richardson is the administratrix of the estate of Tyreesha L. Richardson, and Plaintiff Mario Henry is the administrator of the estate of Gwyneth E. Henry.
Section 8 of the United States Housing Act of 1937, 42 U.S.C. § 1437f, established a housing program to help eligible low-income families afford safe and sanitary housing. The United States Department of Housing and Urban Development ("HUD") oversees the program, which is administered by local agencies in accordance with federal guidelines. In Erie, the local administering agency is the Housing Authority of the City of Erie ("HACE"). Defendant John E. Horan is the Executive Director of HACE, where he is responsible for ensuring HACE complies with applicable laws and regulations as well as overseeing its employees. Defendant Joseph Angelotti is employed by HACE as a Section 8 Housing Inspector.
HACE provides housing vouchers to families it determines qualify for tenant-based assistance. A qualifying family may take the voucher to a willing landlord of its choosing, subject to HACE's approval of the tenancy. HACE approval requires an inspection and a determination that the dwelling unit meets the Housing Quality Standards ("HQS") promulgated by HUD. Among other things, the Housing Quality Standards require that the dwelling unit have "an alternate means of exit in case of fire (such as fire stairs or egress through windows), " 24 C.F.R. § 982.401(k), and "at least one battery-operated or hard-wired smoke detector, in proper operating condition, on each level, " Id. § 982.401(n).
If HACE approves a tenancy after inspection, HACE and the property owner will enter into a Housing Assistance Payment ("HAP") contract in which HACE agrees to pay a certain portion of the tenant's monthly rent. The tenant enters into a lease with the property owner and is responsible for paying the remainder of the agreed-upon rent. The property owner must keep the unit in compliance with the Housing Quality Standards for the duration of the lease. HACE employs housing inspectors to inspect units prior to leasing, annually thereafter, and "at other times as needed" to ensure compliance. Id. § 982.405(a). HACE's Administrative Plan provides:
1. The owner must maintain the assisted unit in accordance with HQS.
2. The HACE will take prompt action to enforce the owner's obligations for owner breach of the HQS.
3. The HACE will notify the owner and tenant of HQS deficiencies for which the owner is responsible. The notice will provide for the following:
• For HQS failures, the owner will be given up to thirty (30) days to correct the item(s). The HACE Executive Director or designee may, at his/her discretion, approve a reasonable extension of time depending upon the extent or scope of work required.
• If the defect is life threatening to the family's health or safety, the owner will be given 24 hours to correct the violation
• If the owner fails to correct failed items, the payment will be suspended or the HAP Contract will be terminated.
4. The HACE will not make any assistance payments for a dwelling unit in which HQS deficiencies have not been corrected after the notice period has expired.
5. If "life threatening" deficiencies are not corrected within 24 hours, the owner will be given notice of intent to terminate the HAP Contract and that the Housing Assistance Payment will be suspended through the Termination Notice period.
Compl. ¶ 63 (citing Housing Authority of the City of Erie, Section 8 Housing Choice Voucher Administrative ...