Concerned Tenants of Father Panik Village v. Pierce

• Decision Date: 09 May 1988
• Docket Number: Civ. No. B-87-809 (TFGD).
• Citation: 685 F. Supp. 316
• Court: U.S. District Court — District of Connecticut
• Parties: CONCERNED TENANTS ASSOCIATION OF FATHER PANIK VILLAGE, et al., Plaintiffs, v. Samuel PIERCE, Secretary of the United States Dept. of Housing and Urban Development, et al., Defendants.

685 F. Supp. 316

CONCERNED TENANTS ASSOCIATION OF FATHER PANIK VILLAGE, et al., Plaintiffs, v. Samuel PIERCE, Secretary of the United States Dept. of Housing and Urban Development, et al., Defendants.

Civ. No. B-87-809 (TFGD).

United States District Court, D. Connecticut.

May 9, 1988.

Robert Solomen, Michael O. Sheehan, Jerome N. Frank Legal Services, New Haven, Conn., for plaintiffs.

Barry K. Stevens, Asst. U.S. Atty., Bridgeport, Conn., Frank K. Santoro, Asst. U.S. Atty., New Haven, Conn., for Pierce.

Eric L. Reinken, Edward M. Kweskin, Wofsey, Rosen, Kweskin & Kuriansky, Joseph A. Siciliano, Stamford, Conn., for Craig & BHA.

RULING ON DEFENDANTS' MOTION TO DISMISS

DALY, Chief Judge.

The Concerned Tenants Association of Father Panik Village, along with thirteen named residents of Father Panik Village, have filed a class action suit in the above-captioned matter on behalf of more than 700 resident families to redress the allegedly dangerous, indecent, and unsanitary living conditions at Father Panik Village, a low-income housing project in Bridgeport, Connecticut. In particular, plaintiffs allege that defendants have failed to repair broken windows, doors, electrical fixtures, appliances, radiators, pipes, showers, stairway railings, floors, walls, and ceilings; that defendants have failed to provide adequate security, including door locks, hallway lighting, and smoke alarms, which have resulted in frequent robberies of the tenants and the use of vacant apartments by drug addicts and drug sellers; and that the hallways and stairs are filled with garbage and refuse, and the apartments are infested with rodents and insects.

The action is brought against Samuel Pierce, the Secretary of the United States Department of Housing and Urban Development ("HUD"), Clarence Craig, the Executive Director of the Bridgeport Housing Authority, and the Bridgeport Housing Authority ("BHA"). Plaintiffs originally filed the action in the Superior Court of the State of Connecticut. Upon the petition of defendant Pierce, the action was removed to this Court pursuant to 28 U.S.C. §§ 1441(b), 1442(a)(1), and 1446 on the grounds that the allegations of plaintiffs' complaint arise in connection with official acts of defendant Pierce and HUD.

On February 4, 1988, defendants Craig and BHA filed a motion to dismiss Counts I, II, III, IV, VII, VIII, and X of plaintiffs' original complaint. In the meantime, plaintiffs sought and were granted, absent objection, leave to amend their complaint. The amended complaint includes two entirely new counts—one naming defendant Pierce and one naming defendants Craig and BHA—as well as certain clarifications of the original ten counts. Except for the two new counts in the amended complaint,¹ the Court shall construe the motion to dismiss as applying to the amended complaint.

DISCUSSION

I. Enforceable Rights under § 1983

Plaintiffs' claims in Counts IV and VIII of the amended complaint are brought pursuant to 42 U.S.C. § 1983. Section 1983 itself does not create any substantive rights, but rather establishes a remedial device to enforce rights under the Constitution and federal law. Although § 1983 provides a method of recovery for the violation of rights secured by federal statutes, Maine v. Thiboutot, 448 U.S. 1, 7-8, 100 S.Ct. 2502, 2506, 65 L.Ed.2d 555 (1980), not all federal statutes or regulations enacted pursuant thereto create enforceable rights.

The Supreme Court has delineated two exceptions to the general rule that § 1983 provides a remedy for the deprivation of rights secured under federal law. Both exceptions require an inquiry into congressional intent. First, no action under § 1983 shall lie if Congress intended to foreclose private enforcement except by the remedial mechanisms provided in the statute itself. Smith v. Robinson, 468 U.S. 992, 1012, 104 S.Ct. 3457, 3468, 82 L.Ed.2d 746 (1984); Middlesex County Sewage Auth. v. National Sea Clammers Ass'n, 453 U.S. 1, 20, 101 S.Ct. 2615, 2626, 69 L.Ed.2d 435 (1981). Second, a plaintiff may not bring a § 1983 action if Congress intended the substantive statute in question merely to state a preference or policy declaration rather than to create enforceable rights in the private party. Pennhurst State School & Hospital v. Halderman, 451 U.S. 1, 15, 101 S.Ct. 1531, 1539, 67 L.Ed.2d 694 (1981).

Of particular interest for the resolution of the issues presently before the Court is the Supreme Court's recent decision in Wright v. Roanoke Redevelopment & Housing Auth., 479 U.S. 418, 107 S.Ct. 766, 93 L.Ed.2d 781 (1987). In Wright, the Supreme Court held that 42 U.S.C. § 1437a, commonly known as the Brooke Amendment to the U.S. Housing Act ("Housing Act"), conferred rights in tenants enforceable under § 1983. The Brooke Amendment limits the rent that may be charged to low-income tenants of public housing projects to a specific percentage of the tenants' income. 42 U.S.C. § 1437a. HUD's regulations defined "rent" as including a reasonable amount for the use of utilities. The tenants in Wright claimed that the public housing authority had overcharged them for utilities, thereby violating the rent restrictions of the Brooke Amendment.

In examining whether the Brooke Amendment and its implementing regulations fell within the Sea Clammers or Pennhurst exceptions, the Court first noted that no private judicial remedial mechanism could be found in the Brooke Amendment or elsewhere in the Housing Act. 107 S.Ct. at 773. Moreover, HUD's generalized powers to enforce the Brooke Amendment's rent restrictions as well as the administrative grievance procedures provided in 42 U.S.C. § 1437d(k) were insufficient to indicate congressional intent to foreclose enforcement through § 1983. Id. at 772-73.

The Court went on to determine that the language of the Brooke Amendment, coupled with HUD's regulations, was sufficiently definite to create an enforceable right. The amendment and the regulations provided a specific mandatory rent limitation including reasonable utility charges, the intent of which was clearly to benefit the tenants of public housing projects. Such language was not a mere policy declaration. The Court concluded, therefore, that the Brooke Amendment and the implementing regulations were enforceable under the standards of Pennhurst. Id. at 774-75. Accord Beckham v. New York City Housing Auth., 755 F.2d 1074 (2d Cir.1985).

Plaintiffs herein have brought claims pursuant to § 1983 for violations of various portions of the Housing Act other than the Brooke Amendment. Although Wright sheds considerable light on the enforceability of rights under the Housing Act, the task remains for the court to examine those sections relied on by the plaintiffs in light of the standards set forth in Sea Clammers, Pennhurst, and Wright.

A. De Facto Demolition

In Count VIII of the amended complaint, plaintiffs allege that defendants BHA and Craig's failure to preserve and maintain vacant units in Father Panik Village in a decent, safe, and sanitary condition has resulted in making the units uninhabitable. Plaintiffs contend that BHA and Craig thereby caused a de facto or constructive demolition of those units and that the demolition was not carried out in accordance with requirements set forth in 42 U.S.C. § 1437p and the regulations promulgated pursuant thereto.

Section 1437p establishes specific conditions that must be met before a public housing authority may sell or demolish existing public housing units. It provides that HUD may not approve an application for demolition unless the Secretary has determined that

the project or portion of the project is obsolete as to physical condition, location, or other factors, making it unusable for housing purposes, and no reasonable program of modifications is feasible to return the project or portion of the project to useful life; or in the case of an application proposing the demolition of only a portion of a project, the demolition will help to assure the useful life of the remaining portion of the project....

42 U.S.C. § 1437p(a)(1). Furthermore, HUD may not approve a demolition application unless

(1) the application from the public housing agency has been developed in consultation with tenants and tenant councils, if any, who will be affected by the demolition or disposition and contains a certification by appropriate local government officials that the proposed activity is consistent with the applicable housing assistance plan;

(2) all tenants to be displaced as a result of the demolition or disposition will be given assistance by the public housing agency and are relocated to other decent, safe, sanitary, and affordable housing, which is, to the maximum extent practicable, housing of their choice, including housing assisted under section 1437f of this title; and

(3) the public housing agency has developed a plan for the provision of an additional decent, safe, sanitary, and affordable dwelling unit for each public housing dwelling unit to be demolished or disposed under such application....

42 U.S.C. § 1437p(b). HUD has issued regulations for the implementation of these requirements. 24 C.F.R. § 970.

In Edwards v. District of Columbia, 821 F.2d 651 (D.C.Cir.1987), the District of Columbia Circuit addressed the issue of whether § 1437p creates an enforceable right that may be violated by a de facto demolition. Although HUD had not acted upon the defendant's application to demolish certain public housing units, the plaintiff tenants of the project brought an action under § 1983 for infringement of their rights protected by § 1437p. Id. at 653. The court in Edwards concluded that the language and legislative history of § 1437p did not reflect that Congress intended to create an enforceable right in public housing tenants. Instead, the court held that § 1437p created only the obligation that HUD not approve a demolition application unless the conditions in § 1437p were met. Id. at 658-60.

In the wake of ...