Edwards v. Johnston County Health Dept.

Decision Date20 September 1989
Docket NumberNo. 88-3171,88-3171
Citation885 F.2d 1215
PartiesWillie B. EDWARDS, Jr., Queen Hayes, James Hayes, and Earl Jaspar Forney, Plaintiffs-Appellants, and James Garrett and James Dubose, Plaintiffs, v. JOHNSTON COUNTY HEALTH DEPARTMENT; W. Leon Powell, Jr.; Roy H. Warren; Richard H. Clayton, III; Stacy Covill; Ronald H. Levine, in his official capacity as State Health Director of the North Carolina Department of Human Resources; Helen Ray; Johnston County, Defendants-Appellees.
CourtU.S. Court of Appeals — Fourth Circuit

Robert J. Willis, Raleigh, N.C. (Farmworkers Legal Services of North Carolina) for plaintiffs-appellants.

Sueanna P. Peeler, Asst. Atty. Gen., Raleigh, N.C. (Lacy H. Thornburg, Atty. Gen., Pittsboro, N.C., William R. Britt, Smithfield, N.C., and Gordon C. Woodruff, Harron, O'Hale, Whittington & Woodruff, Benson, N.C., on brief), for defendants-appellees.

Before RUSSELL, Circuit Judge, HADEN, Chief United States District Judge for the Southern District of West Virginia, sitting by designation, and ELLIS, United States District Judge for the Eastern District of Virginia, sitting by designation.

ELLIS, District Judge:

Six black migrant farmworkers 1 appeal the dismissal of their claims against various county and state officials. 2 They contended below that appellees' practice of issuing permits for the establishment of substandard migrant housing facilities 3 violated the Fair Housing Act of 1968, 42 U.S.C. Secs. 3601-3619 (Title VIII), and their due process rights under the Fourteenth Amendment and 42 U.S.C. Sec. 1983. The district court dismissed appellants' claims, finding that they failed to state a claim upon which relief could be granted. We affirm.


At issue is the appellees' allegedly illegal issuance of permits for two substandard migrant housing facilities. 4 During the spring and summer harvest seasons of 1985, appellants lived in these substandard facilities as a condition of their employment on two farms in Johnston County, North Carolina. Owners of the farms, as required by state law, had applied for and received state permits to operate migrant housing facilities from the Johnston County Health Department ("JCHD"). These permits issued after a JCHD representative inspected the two facilities and verified that they complied with state health and safety standards for migrant farm housing. Notwithstanding the issuance of the permits, neither facility satisfied those standards. Because appellees failed to ensure that the JCHD inspector responsible for issuing the permits was adequately trained and supervised, they thereby allowed the permitting of substandard housing. Appellees also failed to conduct adequate post-permitting inspections of these facilities to ensure continuing compliance with the state standards. As a direct result, appellants and other migrant farmworkers in Johnston County--more than ninety percent (90%) of whom are non-white--were effectively required to endure unsanitary and unsafe living conditions.

Appellants filed suit in the fall of 1985. Soon thereafter, appellees moved to dismiss appellants' claims, pursuant to Rule 12(b)(6), Fed.R.Civ.P., for failure to state a claim upon which relief could be granted. The state appellees also sought dismissal, pursuant to Rule 12(b)(1), Fed.R.Civ.P., of all claims against them in their official capacities on Eleventh Amendment grounds. Almost a year later, the district court dismissed all claims against the state appellees in their official capacities, but denied appellees' Rule 12(b)(6) motion to dismiss the remaining claims. 5 Subsequent motions by both parties for reconsideration of the Order were twice denied. More than two and a half years after suit was filed, however, the district court sua sponte reversed its earlier rulings and dismissed appellants' remaining claims for failure to state a claim. 6 Final judgment was entered on August 5, 1988. This appeal followed.

The following dispositive due process and Title VIII issues are addressed on appeal:

(1) Did appellees deprive appellants of a substantive due process right to safe and sanitary housing?

(2) Did appellees deprive appellants of a constitutional "liberty" interest without due process of law?

(3) Did appellees' practice of issuing unwarranted housing permits for migrant housing facilities effectively deny or make safe and sanitary housing unavailable for appellants on the basis of appellants' race, color, or nationality?

(4) Did appellees illegally discriminate against appellants in their provision of housing inspection services?

Each issue is discussed in turn. 7


Appellants, relying on Sec. 1983, claim appellees' actions represented local and state policies that denied them their substantive and procedural due process rights. 8 Specifically, appellants claim appellees deprived them of their right to "physical safety and mental and emotional health as a result of their exposure to the foreseeable risk of harm caused by the appellees' deliberately indifferent acts in the permitting of that migrant housing." The substantive due process claim necessarily assumes that appellees were constitutionally obligated, yet failed, to protect them from unsafe and unsanitary housing facilities. In the alternative, under the Due Process Clause's procedural component, 9 appellants claim they were deprived of a protected "liberty" interest in habitable housing without due process of law. The district court correctly held that neither allegation states a constitutional claim under Sec. 1983. 10


Substantive due process rights are created only by the Constitution. Regents of University of Michigan v. Ewing, 474 U.S. 214, 229, 106 S.Ct. 507, 515, 88 L.Ed.2d 523 (1985); Youngberg v. Romeo, 457 U.S. 307, 309, 102 S.Ct. 2452, 2454-55, 73 L.Ed.2d 28 (1982). And it is well-settled that the Constitution does not explicitly guarantee the availability of safe and sanitary housing. See Lindsey v. Normet, 405 U.S. 56, 74, 92 S.Ct. 862, 874, 31 L.Ed.2d 36 (1972); Perry v. Housing Authority of the City of Charleston, 486 F.Supp. 498, 503 (D.S.C.1980), aff'd, 664 F.2d 1210 (4th Cir.1981). Nor have appellants pointed to any authority for inferring such a right. To the contrary, DeShaney v. Winnebago County Dept. of Social Services, --- U.S. ----, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989), decided after the district court's ruling in this case, points persuasively away from such an inference where, as here, private actors, and not the State, have committed the underlying acts of which appellants complain. In DeShaney, the Supreme Court explained that

"nothing in the language of the Due Process Clause itself requires the State to protect the life, liberty, and property of its citizens against invasion by private actors. The Clause is phrased as a limitation on the State's power to act, not as a guarantee of certain minimal levels of safety and security."

Id. 109 S.Ct. at 1003. Thus, the court concluded, "[i]f the Due Process Clause does not require the State to provide its citizens with particular protective services, it follows that the State cannot be held liable under the Clause for injuries that could have been averted had it chosen to provide them." Id. at 1004. Significantly, the DeShaney court expressly rejected the notion urged here by appellants that an affirmative duty to provide adequate protective services arises out of "special relationships" created or assumed by the State with respect to children under its child protection laws. Id.; see, e.g., Jensen v. Conrad, 747 F.2d 185, 194 (4th Cir.1984) (noting, in dicta, that a constitutional right to affirmative State protection may arise from a non-custodial relationship), cert. denied, 470 U.S. 1052, 105 S.Ct. 1754, 84 L.Ed.2d 818 (1985). Rather, the State's constitutional obligation does not arise until it "takes a person into its custody and holds him there against his will." DeShaney, 109 S.Ct. at 1005. Accordingly, the court in DeShaney rejected a claim by a child and his mother that the local Department of Social Services had a constitutional obligation to protect the child from his father. Although the Department had been investigating allegations of child abuse by the father, the child was not officially under the Department's protective services. Similarly, appellees here had no constitutional obligation to protect appellants from the living conditions in privately-owned migrant housing facilities. As appellants concede, appellees never assumed custody of them, nor did appellees place them in those substandard housing facilities. The facilities were operated solely by private owners with no financial support from the State. Under both federal and state migrant housing statutes, the burden for compliance with safety and health standards rested squarely on these private owners. Thus, in the context of these facts, DeShaney compels the conclusion that appellees' actions did not deprive appellants of any substantive due process right.


To establish a procedural due process violation, appellants must first establish the existence of a protected "liberty" or "property" interest and then show that appellees' actions deprived them of that interest. Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972); see also Ingraham v. Wright, 430 U.S. 651, 97 S.Ct. 1401, 51 L.Ed.2d 711 (1977). There is no suggestion that appellees deprived appellants of a "property" interest. Rather, appellants contend that North Carolina migrant housing laws and regulations created a protected "liberty" interest in habitable migrant housing. On close scrutiny, this contention fails. Protected "liberty" interests may arise only from the Due Process clause itself or from state laws. 11 See Hewitt v. Helms, 459 U.S. 460, 466, 103 S.Ct. 864, 868, 74 L.Ed.2d 675 (1983); Mills v. Rogers, 457 U.S. 291, 300, 102 S.Ct. 2442, 2449, 73 L.Ed.2d 16 (1982); Meachum v. Fano, 427 U.S. 215,...

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