Aristil v. Housing Authority of City of Tampa

• Decision Date: 08 June 1999
• Docket Number: No. 99-22-CIV-T-17F.,99-22-CIV-T-17F.
• Parties: Marlene ARISTIL, individually and as parent and natural guardian for John D. Wilson, Plaintiffs, v. The HOUSING AUTHORITY OF THE CITY OF TAMPA, FLORIDA, a political subdivision of the State of Florida, Defendant.
• Court: U.S. District Court — Middle District of Florida

54 F.Supp.2d 1289

Marlene ARISTIL, individually and as parent and natural guardian for John D. Wilson, Plaintiffs, v. The HOUSING AUTHORITY OF THE CITY OF TAMPA, FLORIDA, a political subdivision of the State of Florida, Defendant.

No. 99-22-CIV-T-17F.

United States District Court, M.D. Florida, Tampa Division.

June 8, 1999.

Earl M. Johnson, Jr., Earl M. Johnson, Jr., P.A., Jacksonville, FL, Paul S. Kimsey, Paul S. Kimsey, P.A., Tampa, FL, for plaintiffs.

Alan D. Stewart, Butler, Burnette & Pappas, Tampa, FL, J. Frazier Carraway, Salem, Saxon & Nielsen, P.A., Tampa, FL, for defendant.

ORDER ON DEFENDANT'S MOTION TO DISMISS AND MOTION TO STRIKE

KOVACHEVICH, Chief Judge.

THIS CAUSE is before the Court on Defendant's, The Housing Authority of the City of Tampa, Florida's [hereinafter "Housing Authority"], Motion to Dismiss and Strike Plaintiffs' Complaint, (Dkt.12), filed on March 17, 1999, and Plaintiffs', Marlene Aristil's and John D. Wilson's, response thereto, (Dkt.15), filed on April 26, 1999.

STANDARD OF REVIEW

A district court should not dismiss a complaint unless it appears, "beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." See Conley v. Gibson, 355 U.S. 41, 45, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957). To survive a motion to dismiss, a plaintiff may not merely "label" his or her claims. See Blumel v. Mylander, 919 F.Supp. 423, 425 (M.D.Fla.1996). At a minimum, the Federal Rules of Civil Procedure require a "short and plain statement of the claim" that "will give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." See Conley, 355 U.S. at 47, 78 S.Ct. 99 (quoting Fed.R.Civ.P. 8(a)(2)).

In deciding a motion to dismiss, the court may only examine the four corners of the complaint. See Rickman v. Precisionaire, Inc., 902 F.Supp. 232, 233 (M.D.Fla.1995). "The threshold sufficiency that a complaint must meet to survive a motion to dismiss is exceedingly low." Ancata v. Prison Health Serv., Inc., 769 F.2d 700, 703 (11th Cir.1985) (citation omitted).

In addition, a court must accept the plaintiff's well pled facts as true and construe the complaint in the light most favorable to the plaintiff. See Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); Howry v. Nisus, Inc., 910 F.Supp. 576 (M.D.Fla.1995). However, when on the basis of a dispositive issue of law, no construction of the factual allegations of the complaint will support the cause of action, dismissal of the complaint is appropriate. See Executive 100, Inc. v. Martin County, 922 F.2d 1536 (11th Cir. 1991).

When deciding a motion to strike, a court must look to Federal Rule of Civil Procedure 12(f). Federal Rule of Civil Procedure 12(f) provides that upon motion by a party or upon the court's initiative at any time, the court may order stricken from any pleading any "redundant, immaterial, impertinent, or scandalous matter." A motion to strike will usually be denied unless the allegations have no possible relation to the controversy and may cause prejudice to one of the parties. See Poston v. American President Lines, Ltd., 452 F.Supp. 568, 570 (S.D.Fla.1978) (citing Augustus v. Board of Public Instruction, 306 F.2d 862 (5th Cir.1962)). Federal Rule of Civil Procedure 12(f) entitled "Motion to Strike" plainly and clearly states that a motion to strike may be filed "upon motion by a party within 20 days after service of the pleading upon the party."

BACKGROUND

Plaintiffs filed this cause of action against the Housing Authority on January 5, 1999. (Dkt.1). Plaintiffs' Complaint asserts that Plaintiffs have resided in a College Hill apartment since approximately November of 1996. College Hill is a housing project which is owned and operated by the Housing Authority. Plaintiff Aristil has a leasehold interest in a College Hill apartment which was acquired through a lease agreement executed between Plaintiff Aristil and the Housing Authority.

Upon entering the College Hill apartment, Plaintiff Aristil noticed chipping and peeling paint. Plaintiff Aristil immediately complained to the Housing Authority. When the Housing Authority failed to take action to cure the paint problem complained of, Plaintiff Aristil continued to complain to the Housing Authority. The Housing Authority took no action to cure the paint problem in Plaintiffs' College Hill apartment.

Plaintiff Aristil is an adult and is the natural birth mother of Plaintiff Wilson, a minor who was born on January 23, 1995. Plaintiff Wilson was born through a normal delivery and had a normal APGAR rating after birth. Plaintiff Wilson was diagnosed with asthma at approximately one (1) year of age. Up until this diagnosis, Plaintiff Wilson developed normally with no significant medical problems. Plaintiff Wilson's behavior, soon after becoming a "mobile toddler," began to change. Plaintiff Wilson began to have "uncharacteristic tantrums and fits" and began to act in a "hyper and easily excitable" fashion. Soon after this change in behavior, Plaintiff Wilson's learning and speech progression appeared to stop.

Plaintiff Wilson has been diagnosed by a physician as suffering from lead poisoning and at the time of diagnosis had a blood lead value equal to or greater than 10 ug/dL. Once Plaintiff Wilson was diagnosed as suffering from lead poisoning, Plaintiff Aristil informed the Housing Authority of Plaintiff Wilson's condition. Upon receiving information concerning Plaintiff Wilson's condition, the Housing Authority failed to take action to cure the lead-based paint hazard in Plaintiffs' College Hill apartment.

Count I of Plaintiffs' Complaint alleges a violation of the Lead-Based Paint Poisoning Prevention Act of 1971 [hereinafter "LPPPA"], 42 U.S.C. § 4822, and is brought pursuant to 42 U.S.C. § 1983. Plaintiffs state that the Housing Authority has adopted or acquiesced in a policy or practice of failing to respond, notify, inspect, and eliminate lead-based paint hazards at College Hill and has callously and recklessly disregarded Plaintiffs' rights.

Count II of Plaintiffs' Complaint alleges a violation of the United States Housing Act [hereinafter USHA], 42 U.S.C. § 1437d(k), and is brought pursuant to 42 U.S.C. § 1983. Plaintiffs state that the Housing Authority violated the USHA by failing to make Plaintiffs aware of and provide Plaintiffs with grievance procedures regarding lead-based paint hazards at College Hill.

Count III of Plaintiffs' Complaint alleges that Plaintiffs are intended third party beneficiaries of the Annual Contributions Contract [hereinafter "ACC"] between the Department of Housing and Urban Development [hereinafter "HUD"] and the Housing Authority. Plaintiffs allege that the Housing Authority breached the ACC by failing to provide "safe and decent" housing to Plaintiffs.

DISCUSSION

I. Counts I and II

According to the Housing Authority, Counts I and II of Plaintiffs' Complaint should be dismissed because Plaintiffs have failed to state a claim upon which relief may be granted. The Housing Authority states that Plaintiffs' claims do not sufficiently cite regulations and do not sufficiently define the rights upon which Plaintiffs' claims are based. The Housing Authority asserts that because Plaintiffs do not sufficiently define the rights upon which Plaintiffs' claims are based, Plaintiffs cannot pursue a claim under 42 U.S.C. § 1983.

Section 1983 may be used to file a cause of action against a state agent who has violated a federal statute. See Wright v. City of Roanoke Redevelopment and Housing Authority, 479 U.S. 418, 423, 107 S.Ct. 766, 93 L.Ed.2d 781 (1987); Maine v. Thiboutot, 448 U.S. 1, 4, 100 S.Ct. 2502, 65 L.Ed.2d 555 (1980). The Supreme Court has determined when a cause of action under 42 U.S.C. § 1983 may lie and stated that section 1983 is available to enforce a federal statute allegedly violated by a state agent in all but two (2) circumstances. See id. The Supreme Court stated that where "Congress has foreclosed ... enforcement of the statute in the enactment itself and where the statute did not create enforceable rights, privileges, or immunities within the meaning of § 1983" a cause of action under section 1983 does not exist. See id. "If there is a state deprivation of a `right' secured by a federal statute, § 1983 provides a remedial cause of action unless the state actor demonstrates by express provision or other specific evidence from the statute itself that Congress intended to foreclose such private enforcement." See id.

The Supreme Court clarified the criteria for determining what type of "rights" are enforceable under section 1983 and stated that "section 1983 speaks in terms of `rights, privileges, or immunities,' not violations of federal law." Golden State Transit Corp. v. City of Los Angeles, 493 U.S. 103, 105, 110 S.Ct. 444, 107 L.Ed.2d 420 (1989). Whether an enforceable right exists under section 1983 depends on whether the federal statute was intended to benefit the putative plaintiff and if so whether the federal statute creates a binding obligation on the governmental unit. See Simmons v. Charleston Housing Authority, 881 F.Supp. 225, 229 (S.D.W.Va.1995).

In the case at hand, the Court must initially determine whether an enforceable right exists under section 1983. See id. To determine whether an enforceable right exists under section 1983 the Court must determine whether the USHA and the LPPPA are intended to benefit Plaintiffs. See id. The language contained in the USHA states that "[i]t is the policy of the United States to promote the general welfare of the Nation by employing its funds ... to assist the several states ... to remedy the unsafe and unsanitary housing conditions and the acute shortage of decent, safe, and sanitary dwellings for families of low income...." 42 U.S.C. 1437; see also Perry v. Housing Authority of the City of Charleston, 664 F.2d 1210, 1213 (4th Cir.1981) (stating that...