Simmons v. Charleston Housing Authority
Decision Date | 22 March 1995 |
Docket Number | Civ. A. No. 2:94-1025. |
Citation | 881 F. Supp. 225 |
Court | U.S. District Court — Southern District of West Virginia |
Parties | Diane SIMMONS and John Chase, as parents and next friends of Felita D. Chase and Yalanda R. Chase, on behalf of themselves and all others similarly situated, Plaintiffs, v. CHARLESTON HOUSING AUTHORITY, Zelma Boggess, individually and in her capacity as Executive Director of the Charleston Housing Authority, Bruce Hogan, individually and in his capacity as Director of Housing of the Charleston Housing Authority, and Marlene Leonard, individually and in her capacity as Section 8 Manager of the Charleston Housing Authority, Defendants. |
Daniel F. Hedges and Ryan Alexander, Appalachian Research & Defense Fund, Charleston, WV, for plaintiffs.
Charles R. Bailey, Shuman, Annand & Poe, Charleston, WV, for defendants.
Pending are Defendants' motions to dismiss, and Plaintiffs' motions to remand or certify question. Responses and replies have been filed to both sets of motions and these matters are ready for adjudication.
Plaintiffs commenced this litigation in the Circuit Court of Kanawha County on October 24, 1994. At some point thereafter, Plaintiffs filed an amended complaint. It names as defendants the Charleston Housing Authority (the "Authority") and three Authority representatives in their individual and representative capacities.1 The amended complaint alleges plaintiff Diane Simmons began renting and residing with her four children in an apartment in Charleston, West Virginia in May of 1992. Id. at ¶ 21. In March of 1993, Ms. Simmons and her apartment were approved and certified for inclusion in the rent subsidy program sponsored by the Government pursuant to Section 8 of the United States Housing Act of 1937, 42 U.S.C. § 1437f ("Section 8"). Id. at ¶ 26.
The amended complaint alleges the apartment was first inspected by the Defendants several weeks after the apartment was certified for inclusion in the Section 8 rent subsidy program. Id. It contends Ms. Simmons directed the Defendants' attention to chipping and peeling paint in the apartment. Id. Plaintiffs contend the chipping and peeling paint was lead-based and Defendants took no action to remove or ensure the removal of the lead-based paint. Id. The amended complaint asserts the Authority approved a Housing Assistance Contract between the landlord of Ms. Simmons apartment and itself in April of 1993. Id. at ¶¶ 23 and 27.
Plaintiffs contend two of their four children tested positive in August of 1993 for above-normal levels of lead in their blood. Id. at ¶¶ 28, 29. Ms. Simmons then sought and received an environmental lead assessment of the apartment. Id. at Exhibit B. The assessment was performed by the Kanawha-Charleston Health Department and was noted to be "only a preliminary assessment." Id.2 The assessment concluded numerous specific locations within the apartment contained "elevated" lead levels "which may need abatement." Id. Plaintiffs contend they made "repeated requests for inspection and abatement" of the lead paint problems, but Defendants ignored their requests. Id. at ¶ 32.
In the Amended Complaint, Plaintiffs claim the following: (1) Defendants failed to perform their duty to properly and regularly inspect plaintiffs' apartment in violation of W.Va.Code §§ 16-15-3, 7 and 17, Id. at ¶ 37; (2) Defendants violated the Lead-Based Paint Poisoning Prevention Act, 42 U.S.C. § 4822 et seq., Id. at 38; (3) Defendants violated the Code of Federal Rules, namely 24 C.F.R. §§ 882.109(i) and 882.404(c), Id. at ¶ 39; (4) Defendants violated 42 U.S.C. § 1437 et seq., Id. at ¶ 40; (5) Defendants violated 42 U.S.C. § 1983, Id. at ¶ 41; (6) Defendants violated 24 C.F.R. §§ 882 et seq., Id. at ¶ 42; (7) Defendants violated the "Section 8 Inspection Manual as well as the Section 8 Administrative Practices Handbook," Id. at ¶ 43; (8) Defendants breached their "Annual Contributions Contracts with the U.S. Department of Housing and Urban Development," and that Plaintiffs are third-party beneficiaries of those contracts, Id. at ¶ 44; and (9) Defendants "have breached the Housing Assistance Payment Contracts between various private landlords and the Authority plaintiff class," Id. at ¶ 45.
Defendants moved to dismiss the complaint for failure to state claims pursuant to Federal Rule of Civil Procedure 12(b)(6). The Court of Appeals has recognized time and again:
Accord Erickson v. Erickson, 849 F.Supp. 453, 455 (S.D.W.Va.1994) (Haden, C.J.). See Ridgeway Coal Co., Inc. v. FMC Corp., 616 F.Supp. 404, 406-07 (S.D.W.Va.1985) (Haden, C.J.), citing Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957).
Defendants contend Plaintiffs have failed to state a cause of action under the United States Housing Act, Title 42 U.S.C. § 1437, et seq.3 (the "USHA"), and under the Lead-Based Paint Poisoning Prevention Act, 42 U.S.C. § 4821, et seq. (the "LBPPPA"). Defendants assert no private cause of action exists to enforce the provisions of either the USHA or the LBPPPA, and rely heavily upon the Court of Appeals holding in Perry v. Housing Authority of the City of Charleston, 664 F.2d 1210 (4th Cir.1981).4 Plaintiffs contend Perry is distinguishable from the instant action, and private rights exist in this case under both USHA and LBPPPA, relying heavily on the district court decision in Hurt v. Philadelphia Housing Authority, 806 F.Supp. 515 (E.D.Pa.1992).5 For the reasons expressed in the following discussion, plaintiffs have stated a cause of action pursuant to 42 U.S.C. § 1983 with respect to their federal statutory claims. Thus, although their theories of implied causes of action under the USHA or LBPPPA are potentially applicable to this case, they need not be considered further. See Medley v. Ginsburg, 492 F.Supp. 1294, 1298-99 (S.D.W.Va.1980).
In Wright v. City of Roanoke Redevelopment and Housing Authority, 479 U.S. 418, 423, 107 S.Ct. 766, 770, 93 L.Ed.2d 781, 788 (1987), the Supreme Court outlined when a cause of action under § 1983 may lie:
The Supreme Court clarified the test for determining what type of federal statutes create "rights" enforceable under § 1983 in Wilder v. Virginia Hospital Association, 496 U.S. 498, 509, 110 S.Ct. 2510, 2517, 110 L.Ed.2d 455, 467 (1990):
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