Henry v. City of Hous.

• Decision Date: 23 August 2013
• Docket Number: No. 11–3738.,11–3738.
• Citation: 728 F.3d 275
• Parties: Mario HENRY, as administrator of the estate of Gwyneth E. Henry and as guardian of S.H., a minor; Alyshia M. Richardson, as administratrix of the estate of Tyreesha L. Richardson and as guardian of D.R., a minor v. CITY OF ERIE; The Housing Authority of the City of Erie; John E. Horan; Joseph Angelotti; Brett C. Hammel; Patricia A. Hammel John E. Horan and Joseph Angelotti, Appellants.
• Court: U.S. Court of Appeals — Third Circuit

728 F.3d 275

Mario HENRY, as administrator of the estate of Gwyneth E. Henry and as guardian of S.H., a minor; Alyshia M. Richardson, as administratrix of the estate of Tyreesha L. Richardson and as guardian of D.R., a minor

v.CITY OF ERIE; The Housing Authority of the City of Erie; John E. Horan; Joseph Angelotti; Brett C. Hammel; Patricia A. Hammel John E. Horan and Joseph Angelotti, Appellants.

No. 11–3738.

United States Court of Appeals, Third Circuit.

Argued: Sept. 10, 2012.

Filed: Aug. 23, 2013.

Joseph M. Kanfer, Esq., (Argued), John F. Mizner, Esq., Mizner Law Firm, Erie, PA, for Appellees.

Richard A. Lanzillo, I, Esq., (Argued), Knox, McLaughlin, Gornall & Sennett, Erie, PA, for Appellants.

Before: SCIRICA, ROTH, and BARRY, Circuit Judges.

OPINION OF THE COURT

SCIRICA, Circuit Judge.

In this appeal from a motion to dismiss plaintiffs' § 1983 claim, we must determine whether state officials' approval and subsidization of an apartment for the Section 8 housing program, even though the apartment allegedly failed to comply with Section 8's Housing Quality Standards, constitutes a state-created danger toward the apartment's tenant and her guest in violation of their substantive due process rights under the United States Constitution.

Accepting plaintiffs' plausible factual allegations as true for the purpose of this appeal, we do not find that plaintiffs have adequately pled a state-created danger claim. Accordingly, we will reverse the judgment of the District Court.¹

I.

On July 25, 2010, a fire at an apartment located at 933 West 18th Street in Erie, Pennsylvania took the lives of tenant Tyreesha L. Richardson and her guest Gwyneth E. Henry. Their bodies were found on the third floor of the apartment, and an autopsy confirmed both women died from smoke inhalation. The third-floor bedroom purportedly lacked a smoke detector and an alternate means of egress—even though the apartment was required to have both safety features under the Section 8 housing choice voucher program in which Richardson participated.

Plaintiff Alyshia M. Richardson is the administratrix of the estate of Tyreesha L. Richardson, and Plaintiff Mario Henry is the administrator of the estate of Gwyneth E. Henry.

A.

Section 8 of the United States Housing Act of 1937, 42 U.S.C. § 1437f, established a housing program to help eligible low-income families afford safe and sanitary housing. The United States Department of Housing and Urban Development (“HUD”) oversees the program, which is administered by local agencies in accordance with federal guidelines. In Erie, the local administering agency is the Housing Authority of the City of Erie (“HACE”). Defendant John E. Horan is the Executive Director of HACE, where he is responsible for ensuring HACE complies with applicable laws and regulations as well as overseeing its employees. Defendant Joseph Angelotti is employed by HACE as a Section 8 Housing Inspector.

HACE provides housing vouchers to families it determines qualify for tenant-based assistance. A qualifying family may take the voucher to a willing landlord of its choosing, subject to HACE's approval of the tenancy. HACE approval requires an inspection and a determination that the dwelling unit meets the Housing Quality Standards (“HQS”) promulgated by HUD. Among other things, the Housing Quality Standards require that the dwelling unit have “an alternate means of exit in case of fire (such as fire stairs or egress through windows),” 24 C.F.R. § 982.401(k), and “at least one battery-operated or hard-wired smoke detector, in proper operating condition, on each level,” Id. § 982.401(n).

If HACE approves a tenancy after inspection, HACE and the property owner will enter into a Housing Assistance Payment (“HAP”) contract in which HACE agrees to pay a certain portion of the tenant's monthly rent. The tenant enters into a lease with the property owner and is responsible for paying the remainder of the agreed-upon rent. The property owner must keep the unit in compliance with the Housing Quality Standards for the duration of the lease. HACE employs housing inspectors to inspect units prior to leasing, annually thereafter, and “at other times as needed” to ensure compliance. Id. § 982.405(a). HACE's Administrative Plan provides:

1. The owner must maintain the assisted unit in accordance with HQS.

2. The HACE will take prompt action to enforce the owner's obligations for owner breach of the HQS.

3. The HACE will notify the owner and tenant of HQS deficiencies for which the owner is responsible. The notice will provide for the following:

• For HQS failures, the owner will be given up to thirty (30) days to correct the item(s). The HACE Executive Director or designee may, at his/her discretion, approve a reasonable extension of time depending upon the extent or scope of work required.

• If the defect is life threatening to the family's health or safety, the owner will be given 24 hours to correct the violation.

• If the owner fails to correct failed items, the payment will be suspended or the HAP Contract will be terminated.

4. The HACE will not make any assistance payments for a dwelling unit in which HQS deficiencies have not been corrected after the notice period has expired.

5. If “life threatening” deficiencies are not corrected within 24 hours, the owner will be given notice of intent to terminate the HAP Contract and that the Housing Assistance Payment will be suspended through the Termination Notice period.

Compl. ¶ 63 (citing Housing Authority of the City of Erie, Section 8 Housing Choice Voucher Administrative Plan, 6–3 to 6–4 (2003)).²

B.

Richardson was a tenant participant in the Section 8 housing program. With her voucher, Richardson rented a unit on the second and third floors of an apartment duplex owned by Brett and Patricia Hammel.

According to the complaint, on March 27, 2006, Angelotti performed the initial inspection required to approve the apartment for the program. He failed the apartment at that time and informed the owners the following repairs were necessary to make it suitable for the Section 8 program:

In the third floor bedroom:

a. Install a smoke detector.

b. Secure the railing.

c. A fire escape ladder must be in place for a second means of egress.

Id. ¶ 68.

On April 25, 2006, Angelotti purportedly allowed the apartment to pass inspection, even though it still lacked a third-floor fire escape ladder. We will also assume the apartment lacked a third-floor smoke detector,although the complaint is inconsistent regarding such allegations.³

Angelotti then purportedly allowed the apartment to pass annual inspections in 2007, 2009, and 2010. Plaintiffs assert Angelotti inspected the apartment on March 24th and March 31st of 2009. A HACE Inspection Checklist lists various categories for inspection. On the 2009 Checklist, next to the “smoke detectors” category, an “x” has been marked under the column stating “No,” and the words “Install in bedroom” have been written in. Id. ¶ 72. In 2010, the apartment was inspected once. The 2010 Checklist has the same “No” indication next to the “smoke detectors” category, along with a handwritten annotation:

Install as need replace batteries.

Id. ¶ 74.

The results of the 2008 annual inspection are unknown, but on April 29, 2008, Kimberly A. Preston, HACE's Section 8 Program Coordinator, sent a letter to Richardson stating:

Please be advised that the Housing Authority of the City of Erie will terminate all housing assistance payments and the Section 8 contract on your behalf effective May 31, 2008.

This action will be taken because your housing unit was not brought up to the required Housing Quality Standards. Please refer to our inspection report dated April 29, 2008 (however, if the work has been completed, please contact the office and schedule a re-inspection).

Id. ¶ 71. Preston sent similar letters to Richardson after the 2009 and 2010 inspections. The 2009 letter warned that housing assistance payments would terminate effective May 31, 2009 due to the inspection report dated March 31, 2009, unless the apartment was brought into compliance with the Housing Quality Standards. The 2010 letter warned that housing assistance payments would terminate effective May 31, 2010 due to the inspection report dated April 8, 2010, unless the apartment was brought into compliance with the Housing Quality Standards. Despite these warning letters and the owners' continued failure to comply with the Housing Quality Standards, HACE did not terminate the housing assistance payments for Richardson's apartment. As noted, on July 25, 2010, the apartment succumbed to fire,⁴ and Richardson and Henry died in the third-floor bedroom.

C.

Plaintiffs brought suit on behalf of decedents Richardson and Henry, asserting the following: (1) an equal protection claim against the City of Erie; (2) a § 1983 claim against HACE, Horan, and Angelotti for violating the Housing Act; (3) a § 1983 claim against HACE, Horan, and Angelotti under the state-created danger theory; and (4) a negligence claim against the Hammels, the apartment's owners.

The District Court referred the matter to a Magistrate Judge and adopted in toto the Report and Recommendation of the Magistrate Judge. The court dismissed plaintiffs' equal protection claim and Housing Act claim. But the court found plaintiffs adequately pled a state-created danger claim by asserting that but for defendants' affirmative acts in approving and subsidizing the apartment, Richardson would not have been living in that apartment, and she and Henry would not have been killed in the fire. The court stated Richardson's and Henry's deaths were a foreseeable result of defendants' acts, and found Richardson and Henry were part of a discrete class of persons—occupants of the third-floor bedroom—subjected to harm. The court also concluded a jury could find defendants' behavior was deliberately indifferent and conscience-shocking.

The court rejected Horan and Angelotti's...