Johnson v. City of Detroit

• Citation: 446 F.3d 614
• Decision Date: 03 May 2006
• Docket Number: No. 04-1817.,04-1817.
• Parties: Dellita JOHNSON, Plaintiff-Appellant, v. CITY OF DETROIT and City of Detroit Housing Commission, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

Page 614

446 F.3d 614

Dellita JOHNSON, Plaintiff-Appellant, v. CITY OF DETROIT and City of Detroit Housing Commission, Defendants-Appellees.

No. 04-1817.

United States Court of Appeals, Sixth Circuit.

Argued: October 28, 2005.

Decided and Filed: May 3, 2006.

COPYRIGHT MATERIAL OMITTED

ARGUED: Mark R. Bendure, Bendure & Thomas, Detroit, Michigan, for Appellant. James D. Noseda, City of Detroit Law Department, Detroit, Michigan, for Appellees. ON BRIEF: Mark R. Bendure, Bendure & Thomas, Detroit, Michigan, for Appellant. James D. Noseda, City of Detroit Law Department, Detroit, Michigan, for Appellees.

Before: MARTIN, GIBBONS, and GRIFFIN, Circuit Judges.

GRIFFIN, J., delivered the opinion of the court, in which GIBBONS, J., joined.

MARTIN, J. (pp. 629-32), delivered a separate opinion concurring in part, dissenting in part, and concurring in the judgment.

OPINION

GRIFFIN, Circuit Judge.

Plaintiff Dellita Johnson, on behalf of her minor child, Jerome Johnson, Jr., appeals an order of the district court dismissing the claims she asserted against defendants City of Detroit ("City") and the City of Detroit Housing Commission ("DHC"), for the deprivation of federal rights ostensibly created by provisions of the Lead-Based Paint Poisoning Prevention Act, 42 U.S.C. §§ 4821-46 ("LBPPPA"), the United States Housing Act of 1937, as amended, 42 U.S.C. §§ 1437-1437bbb ("USHA") and administrative regulations promulgated pursuant to those statutes. We affirm and hold that the LBPPPA, the USHA, and their administrative regulations do not create individual federal rights enforceable under 42 U.S.C. § 1983.

I.

In August 2003, plaintiff filed the present action against the City and the DHC, seeking damages for lead-based paint poisoning allegedly suffered by her minor son, Jerome Johnson, Jr., while he was a tenant at the Jeffries Homes public housing project in Detroit, Michigan. Plaintiff and her son resided at the Jeffries Homes from 1988 until 1992.¹ During this relevant time period, the City, a "public housing agency" ("PHA"),² and the DHC, a department of the City, owned and operated the public housing project and received federal funding pursuant to Section 8 of the USHA, 42 U.S.C. § 1437f.

In her seven-count complaint, plaintiff alleges that, while a resident of the Jeffries Homes project, she complained to defendants' agents and employees about peeling, chipping, and flaking lead-based paint in and around her living unit, but that defendants failed to rectify the problem. Count I of the complaint alleges a cause of action for damages under 42 U.S.C. § 1983 for the deprivation of federal rights purportedly conferred by provisions of the USHA, the LBPPPA, and administrative regulations created under those statutes. Count II alleges "other violations of federal law," but it, too, is based on federal rights under the same statutes and regulations as described in Count I. Count III alleges a violation of an implied private right of action under the LBPPPA, and Count IV asserts a claim for breach of the annual contributions contract ("ACC") executed between the United States Department of Housing & Urban Development ("HUD") and the DHC, as a third-party beneficiary. Count V alleges breach of warranty of habitability in violation of Michigan Compiled Laws § 554.139. Counts VI and VII assert claims of common law negligence and nuisance per se, respectively.

Defendants filed a motion pursuant to FED. R. CIV.P. 12(b)(6) to dismiss the complaint for failure to state a claim upon which relief can be granted. Following oral argument, the district court, on May 24, 2004, issued a comprehensive opinion and order, granting in part defendants' motion with regard to Counts I, II, and III of the complaint. See Johnson v. City of Detroit, 319 F.Supp.2d 756 (E.D.Mich. 2004). Specifically, the district court concluded that the relevant provisions of the USHA, the LBPPPA, and accompanying regulations did not confer personal federal rights on plaintiff, as a tenant of Section 8 housing, that could be enforced pursuant to § 1983. Id. at 763-79. In addition, the court held that the LBPPPA does not allow for an implied private right of action. Id. at 779 n. 11. The district court dismissed all remaining supplemental state law claims (Counts IV-VII) under 28 U.S.C. § 1367 without prejudice. Id. at 781.

On June 8, 2004, plaintiff filed a motion to alter or amend judgment, and to amend the complaint to allege violations of plaintiff's Fifth and Fourteenth Amendment rights to substantive due process. The district court denied the motion by order entered on June 21, 2004.

On June 24, 2004, plaintiff filed a timely notice of appeal from both the judgment of May 24, 2004, granting in part defendants' motion to dismiss, and the order of June 21, 2004, denying plaintiff's motion to alter or amend the judgment and to amend the complaint.³

II.

We review a district court's dismissal of a complaint under Rule 12(b)(6) de novo. Arrow v. Fed. Reserve Bank of St. Louis, 358 F.3d 392, 393 (6th Cir.2004). In order to survive a 12(b)(6) motion, the plaintiff's complaint must allege facts which, if proved, would entitle the plaintiff to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). In reviewing a motion to dismiss for failure to state a claim, we "construe the complaint in a light most favorable to the plaintiff, accept all of the factual allegations as true and determine whether the plaintiff can prove no set of facts in support of his claims that would entitle him to relief." Arrow, 358 F.3d at 393. "Although this is a liberal pleading standard, it requires more than the bare assertion of legal conclusions. Rather, the complaint must contain either direct or inferential allegations respecting all the material elements to sustain a recovery under some viable legal theory." Nat'l Hockey League Players Ass'n v. Plymouth Whalers Hockey Club, 419 F.3d 462, 468 (6th Cir.2005).

III.

Plaintiff's claims that certain provisions of the LBPPPA and the USHA create individual federal rights enforceable under 42 U.S.C. § 1983 must be considered against the backdrop of recent developments in this area of jurisprudence.

Title 42 U.S.C. § 1983 creates a remedy for those denied "rights, privileges, or immunities secured by the Constitution and laws." Id. (emphasis added). Federal statutes are clearly "laws" within the meaning of § 1983. Wilder v. Va. Hosp. Ass'n, 496 U.S. 498, 508, 110 S.Ct. 2510, 110 L.Ed.2d 455 (1990); Wright v. Roanoke Redevelopment & Hous. Auth., 479 U.S. 418, 423-24, 107 S.Ct. 766, 93 L.Ed.2d 781 (1987); Maine v. Thiboutot, 448 U.S. 1, 4-5, 100 S.Ct. 2502, 65 L.Ed.2d 555 (1980). Section 1983 does not alone create substantive rights; rather, "§ 1983 merely provides a mechanism for enforcing individual rights `secured' elsewhere, i.e., rights independently `secured by the Constitution and laws' of the United States." Gonzaga Univ. v. Doe, 536 U.S. 273, 285, 122 S.Ct. 2268, 153 L.Ed.2d 309 (2002).

In Blessing v. Freestone, 520 U.S. 329, 340-41, 117 S.Ct. 1353, 137 L.Ed.2d 569 (1997), the Supreme Court identified three factors pertinent to the determination whether a statute confers a viable § 1983 action: (1) Congress must have intended the provision to benefit the plaintiff; (2) the statute is not so "`vague and amorphous' that its enforcement would strain judicial competence"; and (3) the provision imposes a binding obligation on the state, i.e., it must be couched in mandatory, rather than precatory, terms. Accord Westside Mothers v. Haveman, 289 F.3d 852, 862-63 (6th Cir.2002) (utilizing the Blessing test in a § 1983 action); Clark v. Portage County, Ohio, 281 F.3d 602, 603 (6th Cir.2001) (applying the Blessing three-factor analysis to determine the viability of a § 1983 action).

Subsequently, however, in Gonzaga, the Supreme Court acknowledged that "[s]ome language in our opinions might be read to suggest that something less than an unambiguously conferred right is enforceable by § 1983." 536 U.S. at 282, 122 S.Ct. 2268. Canvassing its prior decisions pertaining to § 1983, the Court noted that the Blessing decision, for example, had generated some confusion in its application because "[i]n the same paragraph [setting forth the three-factor inquiry], however, Blessing emphasizes that it is only violations of rights, not laws, which give rise to § 1983 actions." Id. at 282-83, 122 S.Ct. 2268. The Gonzaga Court explained:

This confusion has led some courts to interpret Blessing as allowing plaintiffs to enforce a statute under § 1983 so long as the plaintiff falls 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 under an implied right of action. Fueling this uncertainty is the notion that our private right of action cases have no bearing on the standard for discerning whether a statute creates rights enforceable by § 1983.

Id. at 283, 122 S.Ct. 2268.

In order to allay this confusion, the Gonzaga Court soundly "reject[ed] the notion that our cases permit anything short of an unambiguously conferred right to support a cause of action brought under § 1983" and accentuated that "it is rights, not the broader or vaguer `benefits' or `interests,' that may be enforced under the authority of that section." Id. The Gonzaga Court "further reject[ed] the notion that our implied right of action cases are separate and distinct from our § 1983 cases. To the contrary, our implied right of action cases should guide the determination of whether a statute confers rights enforceable under § 1983." Id. The inquiries, while separate and distinct,⁴

overlap in one meaningful respect — in either case we must first determine whether Congress intended to create a federal right. Thus we have held that "the question whether Congress . . . intended to create a private right of action [is]...