Simmons v. Charleston Housing Authority

Decision Date22 March 1995
Docket NumberCiv. A. No. 2:94-1025.
Citation881 F. Supp. 225
CourtU.S. District Court — Southern District of West Virginia
PartiesDiane 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.


HADEN, Chief Judge.

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:

"In general, a motion to dismiss for failure to state a claim should not be granted unless it appears certain that the plaintiff can prove no set of facts which would support its claim and would entitle it to relief. In considering a motion to dismiss, the court should accept as true all well-pleaded allegations and should view the complaint in a light most favorable to the plaintiff." Mylan Laboratories, Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir.1993), cert. denied sub nom, American Home Products Corp. v. Mylan Industries, Inc., ___ U.S. ___, 114 S.Ct. 1307, 127 L.Ed.2d 658 (1994).


"In light of the standard of review, ... even poorly drafted complaints are to be viewed in a light most favorable to the plaintiff: ... a Rule 12(b)(6) motion should be granted only in very limited circumstances. The Supreme Court has explained that `the Federal Rules reject the approach that pleading is a game of skill in which one misstep by counsel may be decisive to the outcome and accept the principle that the purpose of pleading is to facilitate a proper decision on the merits.' * * * `a motion to dismiss for failure to state a claim for relief should not be granted unless it appears to a certainty that the plaintiff would be entitled to no relief under any state of facts which could be proved in support of his claim.' Rogers v. Jefferson-Pilot Life Ins. Co., 883 F.2d 324, 325 (4th Cir.1989) (citation omitted) (quoting Conley v. Gibson, 355 U.S. 41, 48, 78 S.Ct. 99, 103, 2 L.Ed.2d 80 (1957), and Johnson v. Mueller, 415 F.2d 354, 355 (4th Cir.1969))." Id. at 1134, n. 4.

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:

"In Maine v. Thiboutot, 448 U.S. 1, 100 S.Ct. 2502, 65 L.Ed.2d 555 (1980), held that § 1983 was available to enforce violations of federal statutes by agents of the State. Pennhurst State School and Hospital v. Halderman, 451 U.S. 1, 101 S.Ct. 1531, 67 L.Ed.2d 694 (1981), and Middlesex County Sewerage Authority v. National Sea Clammers Assn., 453 U.S. 1, 101 S.Ct. 2615, 69 L.Ed.2d 435 (1981), however, recognized two exceptions to the application of § 1983 to remedy statutory violations: where Congress has foreclosed such enforcement of the statute in the enactment itself and where the statute did not create enforceable rights, privileges, or immunities within the meaning of § 1983. * * * If there is a state deprivation of a `right' secured by a federal statute, § 1983 provides a remedial cause of action unless the state actor demonstrates by express provision or other specific evidence from the statute itself that Congress intended to foreclose such private enforcement."

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):

"`Section 1983 speaks in terms of "rights, privileges, or immunities," not violations of federal law.' Golden State Transit Corp. v. Los Angeles, 493 U.S. 103, 106, 110 S.Ct. 444, 448, 107 L.Ed.2d 420 (1989) (emphasis added). We must therefore determine whether the federal statute creates a `federal right' that is enforceable under § 1983. Such an inquiry turns on whether `the provision in question was intended to benefit the putative plaintiff.' Ibid. (citations and internal quotations omitted). If so, the provision creates an enforceable right unless it reflects merely a `congressional preference' for a certain kind of conduct rather than a binding obligation on the governmental unit, Pennhurst State School and Hospital v. Halderman, 451 U.S. 1, 19, 101 S.Ct. 1531, 1541, 67 L.Ed.2d 694 (1981), or unless the interest the plaintiff asserts is `"too vague and amorphous"' such that it is `"beyond the competence of the judiciary to enforce."' Golden State, supra, 493 U.S., at 106, 110 S.Ct., at 448 (quoting Wright, supra, 479 U.S., at

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