Johnson v. City of Detroit

• Decision Date: 24 May 2004
• Docket Number: No. 03-CV-74440-DT.,03-CV-74440-DT.
• Citation: 319 F.Supp.2d 756
• Parties: Dellita JOHNSON, Plaintiff, v. CITY OF DETROIT and City of Detroit Housing Commission, Defendants.
• Court: U.S. District Court — Eastern District of Michigan

319 F.Supp.2d 756

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

No. 03-CV-74440-DT.

United States District Court, E.D. Michigan, Southern Division.

May 24, 2004.

COPYRIGHT MATERIAL OMITTED

Lawrence J. Buckfire, Southfield, MI, for Plaintiffs.

James D. Noseda, Jane K. Mills, City of Detroit Law Department, Detroit, MI, for Defendants.

ORDER GRANTING IN PART DEFENDANTS' "MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED" AND DISMISSING SUPPLEMENTAL STATE LAW CLAIMS PURSUANT TO 28 U.S.C. § 1367

CLELAND, District Judge.

Pending before the court is Defendants' March 5, 2004 motion to dismiss for failure to state a claim. Plaintiff filed a response to the motion on March 25, 2004, and Defendants filed their reply brief on April 8, 2004. The court conducted a hearing on Defendants' motion on May 20, 2004. For the reasons set forth below, the court will grant Defendants' motion with regard to Counts I, II, and III and dismiss the remaining state law claims pursuant to 28 U.S.C. § 1367.

I. BACKGROUND

This case was filed by Dellita Johnson on behalf of seventeen-year-old minor Plaintiff Jerome Johnson for injuries allegedly caused from lead-based paint poisoning that he suffered at the age of two.¹ Jerome Johnson ("Plaintiff") and his mother Dellita Johnson resided at the Jeffries Homes, a public housing project in Detroit, Michigan from 1988 until 1992. The public housing project was owned and managed by the City of Detroit Housing Commission and the City of Detroit during the relevant time frame.² The Detroit Housing Commission ("DHC") is a department of the city created in 1933 by city ordinance under Michigan's Housing Facilities Act, Michigan Compiled Laws § 125.651, et seq. The ordinance is presently codified at 1984 Detroit City Code §§ 14-5-1 to 14-5-22. The City and the DHC received federal funding from the Secretary of Housing and Urban Development ("HUD") for the operation and management of the Jeffries Homes facility pursuant to Section 8 of the United States Housing Act, 42 U.S.C. § 1437f.

Section 8 provides that the Secretary of HUD may enter annual contributions contracts with public housing agencies like the DHC, which permit the public housing agencies to obtain federal funding to enable low-income families to enter the housing market. 42 U.S.C. § 1437f. The purpose of Section 8 is "to assist the several States and their political subdivisions to remedy the unsafe and unsanitary housing conditions and the acute shortage of decent, safe, and sanitary dwellings for families of lower income." 42 U.S.C. § 1437. Under the program, qualified tenants pay a portion of their income to landlords and the public housing authorities make additional assistance payments to the landlords with federal funds that are received from HUD. See 42 U.S.C. § 1437a(a), 1437f(b), (c) & (o).

Plaintiff alleges that, while residing at the Jeffries Homes housing project, Dellita Johnson complained to Defendants' agents and employees regarding problems with peeling, chipping, and flaking paint in and around her living unit. Plaintiff claims that Defendants "refused, failed, and otherwise neglected to repaint or repair the problem," and "also failed to perform required lead inspections and risk assessments of [his] unit, failed to properly warn [him] of the potential lead-based paint hazards, and failed to provide a proper grievance process for these defects." (Pl.'s Resp. at x.)

In his August 27, 2003 seven-count complaint, Plaintiff names the City of Detroit and the DHC as Defendants. Count I alleges a cause of action for damages under 42 U.S.C. § 1983 for the deprivation of federal rights created under provisions of the United States Housing Act, 42 U.S.C. § 1437, et seq. ("USHA"), the Lead-Based Paint Poisoning Prevention Act, 42 U.S.C. §§ 4801, 4821, and 4822 ("LBPPPA"), and administrative regulations created under those statutes. Count II alleges "other violations of federal law;" however, it is also based on federal rights under the same statutes and regulations as described in Count I, namely 42 U.S.C. § 1437, et seq., 42 U.S.C. § 4821 et seq., and administrative regulations passed pursuant to those statutes. Count III alleges a violation of an implied private right of action under the LBPPPA itself. Count IV asserts a claim for breach of the annual contributions contract (the "ACC") executed between HUD and the DHC, as a third-party beneficiary. Count V alleges a violation of Michigan Compiled Laws § 554.139 (breach of the warranty of habitability). Count VI asserts a common law negligence claim, and Count VII alleges nuisance per se.

II. STANDARD

In ruling on a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the court must construe the complaint in a light most favorable to the plaintiff, accept all the factual allegations as true, and determine whether the plaintiff undoubtedly can prove no set of facts in support of his claims that would entitle him to relief. Sistrunk v. City of Strongsville, 99 F.3d 194, 197 (6th Cir.1996); Cline v. Rogers, 87 F.3d 176, 179 (6th Cir.1996); Wright v. MetroHealth Med. Ctr., 58 F.3d 1130, 1138 (6th Cir.1995). When an allegation is capable of more than one inference, it must be construed in the plaintiff's favor. Columbia Natural Res., Inc. v. Tatum, 58 F.3d 1101, 1109 (6th Cir.1995); In re DeLorean Motor Co., 991 F.2d 1236, 1240 (6th Cir.1993); Mayer v. Mylod, 988 F.2d 635, 638 (6th Cir.1993). Hence, a judge may not grant a Rule 12(b)(6) motion based on a disbelief of a complaint's factual allegations. Wright, 58 F.3d at 1138; Columbia Natural Resources, Inc., 58 F.3d at 1109.

Though decidedly liberal, this standard of review does require more than the bare assertion of legal conclusions. Lillard v. Shelby County Bd. of Educ., 76 F.3d 716, 726 (6th Cir.1996); LRL Properties v. Portage Metro Hous. Auth., 55 F.3d 1097, 1100-01 (6th Cir.1995). The complaint should give the defendant fair notice of the plaintiff's claim and the grounds upon which it rests. Gazette v. City of Pontiac, 41 F.3d 1061, 1064 (6th Cir.1994). "In practice, `a ... complaint must contain either direct or inferential allegations respecting all the material elements to sustain a recovery under some viable legal theory.'" Lillard, 76 F.3d at 726 (emphasis in original) (quoting Scheid v. Fanny Farmer Candy Shops, Inc., 859 F.2d 434, 436 (6th Cir.1988)). "In determining whether to grant a Rule 12(b)(6) motion, the court primarily considers the allegations in the complaint, although matters of public record, orders, items appearing in the record of the case, and exhibits attached to the complaint also may be taken into account." Amini v. Oberlin College, 259 F.3d 493, 502 (6th Cir.2001) (emphasis omitted) (citing Nieman v. NLO, Inc., 108 F.3d 1546, 1554 (6th Cir.1997)).

III. DISCUSSION

A. Plaintiff's § 1983 Claims (Counts I & II)

Plaintiff alleges a cause of action based on 42 U.S.C. § 1983 for violation of various statutory provisions and administrative regulations. Section 1983 provides, in relevant part:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable.

42 U.S.C. § 1983 (emphasis added).

Section 1983 does not create substantive rights; it merely serves as a vehicle to enforce deprivations of "rights[,] privileges, or immunities secured by the Constitution and laws [of the United States]." Oklahoma City v. Tuttle, 471 U.S. 808, 105 S.Ct. 2427, 85 L.Ed.2d 791 (1985); Gonzaga Univ. v. Doe, 536 U.S. 273, 285, 122 S.Ct. 2268, 153 L.Ed.2d 309 (2002) (" § 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"); Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 617, 99 S.Ct. 1905, 60 L.Ed.2d 508 (1979) ("One cannot go into court and claim a `violation of § 1983' — for § 1983 by itself does not protect anyone against anything.").

In Maine v. Thiboutot, 448 U.S. 1, 100 S.Ct. 2502, 65 L.Ed.2d 555 (1980), the Supreme court interpreted the "and laws" language in the statute and held that § 1983 may be used to enforce violations of certain rights created by federal statutes as well as rights created by the Constitution.³ The Maine Court ignored the scanty legislative history associated with the addition of the "and laws" language, recognizing that § 1983 could be used to enforce federal rights created in favor of individual persons by statute. However, the Supreme Court has emphasized that "in order to seek redress through § 1983, ... a plaintiff must assert the violation of a federal right, not merely a violation of federal law." Blessing v. Freestone, 520 U.S. 329, 340, 117 S.Ct. 1353, 137 L.Ed.2d 569 (1997); See also Gonzaga, 536 U.S. at 283, 122 S.Ct. 2268 (quoting Blessing). Despite conflicting opinions from sister circuits, the Sixth Circuit has also permitted federal regulations to create rights enforceable under § 1983 by their own force.⁴ See Levin v. Childers, 101 F.3d 44, 47 (6th Cir.1996); Loschiavo v. City of Dearborn, 33 F.3d 548, 551 (6th Cir.1994). Federal statutes, however, will not give rise to federal rights enforceable by an individual under § 1983 if (1) "the statute [does] not create enforceable rights, privileges, or...