United States District Court, E.D. Pennsylvania
DAEVONNA MCFIELD, a minor by and through her parent and natural guardian, Ravonnia Ray
PHILADELPHIA HOUSING AUTHORITY, et al
For DAEVONNA MCFIELD, A MINOR BY AND THROUGH HER PARENT AND NATURAL GUARDIAN, RAVONNIA RAY, Plaintiffs: JOHN N. ZERVANOS, LEAD ATTORNEY, SOLOFF & ZERVANOS, P.C., PHILADELPHIA, PA.
For PHILADELPHIA HOUSING AUTHORITY, Defendant: JOHN C. MCMEEKIN, RAWLE & HENDERSON, PHILADELPHIA, PA.
Stewart Dalzell, J.
We consider here defendant Philadelphia Housing Authority's (" PHA" ) motion to dismiss plaintiff's second amended complaint pursuant to Fed.R.Civ.P. 12(b)(6).
Specifically, Daevonna McField, by and through her mother, Ravonnia Ray, brings this 42 U.S.C. § 1983 action against PHA, claiming that PHA violated her rights under the United States Housing Act, 42 U.S.C. § 1437, et seq. (" USHA" or " Housing Act" ), the Lead-based Paint Poisoning Prevention Act, 42 U.S.C. § 4801, et seq. (" LBPPPA" ), the Residential Lead-Based Paint Hazard Reduction Act (the " RLBPHRA" ), 42 U.S.C. § 4851, et seq., and the Fifth and Fourteenth Amendments of the United States Constitution. She also sues John Cassidy, her former landlord, asserting common law claims of negligence, recklessness, and breach of warranty. PHA moves to dismiss on the ground that there is no private cause of action under the USHA, LBPPPA, or RLBPHRA. PHA also contends there was no violation of plaintiff's due process or equal protection rights, no state actor affirmatively caused McField's injuries, and no customs or policies deprived her of federal rights. Def. MTD at 4-5.
II. Standard of Review
A defendant moving to dismiss under Fed.R.Civ.P. 12(b)(6) bears the burden of proving that the plaintiff has failed to state a claim for relief, see Fed.R.Civ.P. 12(b)(6); see also, e.g., Hedges v. U.S., 404 F.3d 744, 750 (3d Cir. 2005). As the Supreme Court held in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) and Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009), in order to survive a Rule 12(b)(6) motion, " a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face'", Iqbal, 556 U.S. at 678 (quoting
Twombly, 550 U.S. at 570). A claim is plausible " when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged",
Iqbal, 556 U.S. at 678.
As our Court of Appeals has explained post-Twombly and Iqbal, when considering a motion to dismiss under Fed.R.Civ.P. 12(b)(6) the district courts must engage in a two-part analysis:
First, the factual and legal elements of a claim should be separated. The district court must accept all of the complaint's well-pleaded facts as true, but may disregard any legal conclusions. Second, a district court must then determine whether the facts alleged in the complaint are sufficient to show that the plaintiff has a 'plausible claim for relief.'
Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009). We thus begin by reciting the facts as they appear in the second amended complaint (hereinafter " Comp." ). As most of the facts are not in dispute, we will identify disputes where
they exist, and otherwise assume the parties agree on the facts as alleged.
On or before June 1, 2006, pursuant to the Federal Housing Choice Voucher Program -- which falls under Section 8 of USHA (" Section 8 Housing Program" ) -- PHA entered into a Housing Assistance Payment (" HAP" ) contract with John Cassidy, the owner and landlord of 2040 South 68th Street, Philadelphia, Pennsylvania, for that property. Comp. ¶ ¶ 10, 12, 98.
On June 1, 2006, with the approval of PHA, plaintiff Ravonnia Ray entered into a two-year lease agreement with Cassidy for 2040 South 68th Street. PHA approved the lease on June 1, 2006, and Ray renewed her lease two years later. Comp. ¶ ¶ 98, 101. Ray's daughter, Daevonna McField, was born on July 23, 2007, id. at ¶ 99. When Ray renewed her lease it included a Lead-Based Paint Disclosure Addendum to Lease Statements that was binding on Cassidy. Id. at ¶ 101.
On March 29, 2009, PHA conducted its annual inspection of 2040 South 68th Street and found that the property failed to meet the Housing Quality Standards (" HQS" ) for uncovered electrical outlets, broken windows and inoperable range burners. Notably, there was no mention in the PHA report of lead paint hazards. Id. at ¶ ¶ 103-04. PHA conducted additional inspections on April 4, 2009, May 18, 2009, and May 20, 2009 to monitor remediation of the infractions it had identified, but Cassidy failed to make the required repairs. Id. at ¶ 105.
On June 25, 2009 McField got a blood test that showed " dangerously elevated levels of lead in her bloodstream." Id. at ¶ 107. The results were sent to the Philadelphia Department of Health (" DOH" ) which conducted an environmental inspection of 2040 South 68th Street on September 25, 2009 that found lead-based paint on over eighty surfaces and fixtures. Id. at ¶ ¶ 109-110. The DOH served an order on Cassidy on September 30, 2009 obliging him to eliminate the lead paint danger within ten days, but when DOH inspected the property on October 15, 2009, the problem remained. Id. at ¶ ¶ 112-13. On December 3, 2009 DOH again inspected the property and found Cassidy still non-compliant, and so mother and daughter relocated that month. Id. at ¶ ¶ 115-16.
Plaintiff alleges that as a result of McField's exposure to lead paint, she has suffered permanent and incapacitating brain damage whose treatment requires frequent, painful medical examinations, which come at great expense to Ray. Id. at ¶ ¶ 149-54.
Because of PHA's failure to identify the lead paint hazard, plaintiff reasons that PHA " either failed to conduct the initial inspection" in 2006 and " failed to conduct annual inspections" in 2007 and 2008, or it " failed to discover the multiple lead paint hazards . . . when it performed" the initial and subsequent inspections. Id. at ¶ ¶ 140, 143.
A. Whether the USHA, LBPPPA, and RLBPHRA Provide Private Rights
1. Private Statutory Rights Sufficient To Confer Liability Under 42 U.S.C. § 1983
42 U.S.C. § 1983 provides a remedy for state actors' violations of individuals' constitutional
and federal statutory rights. See, e.g., Blessing v. Freestone, 520 U.S. 329, 340, 117 S.Ct. 1353, 137 L.Ed.2d 569 (1997) (" Section 1983 imposes liability on anyone who, under color of state law, deprives a person 'of any rights, privileges, or immunities secured by the Constitution and laws.'" ). As the United States Supreme Court explained in Gonzaga University v. Doe, 536 U.S. 273, 122 S.Ct. 2268, 153 L.Ed.2d 309 (2002), only " an unambiguously conferred right" can " support a cause of action brought under § 1983" and so " it is only violations of rights, not laws, which give rise to § 1983 actions" . Id. at 282-83 (emphasis in original).
">In Pennhurst State School and Hospital v. Halderman, 451 U.S. 1, 101 S.Ct. 1531, 67 L.Ed.2d 694 (1981), the Supreme Court explained that, " [i]n legislation enacted pursuant to the spending power, the typical remedy for state noncompliance with federally imposed conditions is not a private cause of action for noncompliance but rather action by the Federal Government to terminate funds to the State." Id. at 28. In Blessing, the Supreme Court articulated a three-factor test to help courts determine whether a statute enacted pursuant to the spending power -- like the statutes at issue here -- created a private right redressable under § 1983: (1) " Congress must have intended that the provision in question benefit the plaintiff", (2) " the plaintiff must demonstrate that the right assertedly protected by the statute is not so 'vague and amorphous' that its enforcement would strain judicial competence," and (3) " the provision giving rise to the asserted right must be couched in mandatory, rather than precatory, terms", Blessing, 520 U.S. at 340-41 (quoting Wright v. City of Roanoke Redev. and Housing Auth., 479 U.S. 418, 431, 107 S.Ct. 766, 93 L.Ed.2d 781 (1987)). Plaintiffs urge us to apply the Blessing test here, see Pl. Resp. in Opp. at 14.
But in Gonzaga the Supreme Court clarified Blessing, noting that while " some courts [had] interpret[ed] Blessing as allowing plaintiffs to enforce a statute under § 1983 so long as plaintiff falls within the general zone of interest that the statute is intended to protect" -- a standard that was " less than what is required for a statute to create rights enforceable directly from the statute itself under an implied private right of action" -- such was not the law. Gonzaga, 536 U.S. at 283. Instead, the Supreme Court explained, " We now reject the notion that our cases permit anything short of an unambiguously conferred right to support a cause of action brought under § 1983." Id.
Our Court of Appeals noted that in the wake of Gonzaga satisfaction of the Blessing test was insufficient to demonstrate a statutorily-conferred private right:
as is explained in Gonzaga University, the Blessing Test may only indicate that plaintiffs " fall within the general zone of interest that the statute is intended to protect; something less than what is required for a statute to create rights enforceable directly from the statute itself . . . ." To ensure that Congress unambiguously conferred the rights asserted, we must determine whether Congress used " rights-creating terms."
Sabree ex rel. Sabree v. Richman, 367 F.3d 180, 189-90 (3d Cir. 2004) (quoting Gonzaga, 536 U.S. at 283-83).
We thus decline plaintiff's invitation to ignore Gonzaga and solely apply the Blessing test. Gonzaga directed courts who are deciding whether a statute contains a right whose violation gives rise to § 1983 liability to look to the Supreme Court's line of " implied right of action" cases in order to assess " ...