Stewart v. Metro. Transp. Auth. And
| Decision Date | 22 January 2019 |
| Docket Number | 17 CV 3060 (RJD) (VMS) |
| Citation | 566 F.Supp.3d 197 |
| Parties | Dudley STEWART, Individually and as Parent and Natural Guardian of S.S. and R.S., Tammy Rose and Eduardo Valentin, Individually and as Representatives of a Class of Similarly Situated Current and Former Employees and Members of the Metropolitan Transportation Authority, the New York City Transit Authority and the Transport Workers Union, Local 100, Plaintiffs, v. The METROPOLITAN TRANSPORTATION AUTHORITY and New York City Transit Authority, Defendants. |
| Court | U.S. District Court — Eastern District of New York |
Aryeh Leib Taub, Danielle George, Daniel John Woodard, Steven J. Phillips, Phillips & Paollicelli, LLP, New York, NY, for Plaintiffs Dudley Stewart, Tammy Rose, Eduardo Valentin, Vincent Caridi, Antonio Roldan, Jr.
Philip E. Karmel, Matias Ricardo Gallego-Manzano, Jessica Holly Fischweicher, Bryan Cave Leighton Paisner LLP, New York, NY, for Defendants.
Plaintiffs, proposed class representatives of individuals who live and work near the elevated No. 7 train line in West Queens, bring this putative class action against Defendants, the Metropolitan Transportation Authority ("MTA") and the New York City Transit Authority ("NYCTA"), (collectively "Defendants"). Plaintiffs assert claims under the Civil Rights Act, 42 U.S.C. § 1983, the Federal Employers Liability Act 45 U.S.C. § 51 ("FELA"), and the Clean Air Act, 45 U.S.C. § 7604(a), and assert a variety of state law claims. Plaintiffs also seek a preliminary injunction directing an independent investigation of the extent of the lead hazard on the elevated No. 7 train line, determination of next steps that may be required to address it, and judicial oversight of the lead paint abatement process. Mot. for Prelim. Injunction, ECF No. 46. For the reasons set forth below, Defendants’ motion to dismiss is denied with respect to Plaintiffs’ substantive due process and related tort claims and granted with respect to Plaintiffs’ remaining claims. The Court also denies Plaintiffs’ motion for a preliminary injunction.
This case confronts the dangers of peeling lead paint on portions of the elevated No. 7 train line, which runs through Queens, New York. Plaintiffs are members of the community living and working near the elevated No. 7 train, including MTA and NYCTA employees, who fear that lead particulates from the paint on the elevated structure create a public health emergency in their neighborhoods. Defendants acknowledge that, as with many old structures in New York City, there is lead paint on the No. 7 train line structures, portions of which have not been repainted in several decades. Nevertheless, Defendants deny Plaintiffs’ allegations that the release of lead particulates from the train line causes a public health emergency that violates Plaintiffs’ substantive due process right to be free from bodily harm. Defendants also deny that maintenance of the elevated structures has been selectively performed in violation of the equal protection clause of the Constitution.
This Court held a preliminary evidentiary hearing in which the parties addressed whether the community is faced with a "certain and imminent" public health emergency as a result of peeling lead paint on the No. 7 train line and whether such an emergency, if it exists, warrants preliminary injunctive relief. The parties briefed this issue and presented extensive expert testimony, as well as voluminous exhibits relating to the relative presence of lead particulates in the areas surrounding the No. 7 train line and throughout New York City's five boroughs. See ECF Nos. 46, 47, 52-55.
Plaintiffs are understandably troubled by the presence of peeling paint and the threat of lead poisoning
in their community; the Court shares their apprehension and is sensitive to the serious dangers of lead poisoning, particularly for the most vulnerable among us. Assuming all nonconclusory facts alleged in the Complaint as true, the Court finds that Plaintiffs have pled a plausible claim for relief under the substantive due process clause of the Constitution. However, while the presence of lead in paint chips and paint dust near the No. 7 train line undoubtedly raises a legitimate and disturbing health concern , Plaintiffs have not made the necessary showing, as a matter of proof, that they are irreparably harmed by the lead paint conditions on the No. 7 train and are thus entitled to the extraordinary injunctive relief they seek.
"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ " Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. "The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that defendant has acted unlawfully." Id. (internal quotations omitted). This evaluation is "a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 679, 129 S.Ct. 1937.
In evaluating a motion to dismiss, the court must "draw[ ] all reasonable inferences in the plaintiff's favor ... and constru[e] any ambiguities in the light most favorable to upholding the plaintiff's claim." Duplan v. City of New York, 888 F.3d 612, 617 (2d Cir. 2018) (internal quotations omitted). Dismissal is only appropriate if "it appears beyond doubt that the plaintiff can prove no set of facts which would entitle him or her to relief." Sweet v. Sheahan, 235 F.3d 80, 83 (2d Cir. 2000).
The due process clause of the Fourteenth Amendment ensures that "[no] person shall ... be deprived of life, liberty, or property, without due process of law." U.S. Const. amend. XIV. This promise has evolved into "protection of the individual against arbitrary action of government," Cty. of Sacramento v. Lewis, 523 U.S. 833, 845, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998), including government actions that intrude upon "an individual's right to bodily integrity free from unjustifiable governmental interference," Lombardi v. Whitman, 485 F.3d 73, 79 (2d Cir. 2007). While "the Due Process Clause of the Fourteenth Amendment ... does not transform every tort committed by a state actor into a constitutional violation," Deshaney v. Winnebago Cty. Dep't of Soc. Servs., 489 U.S. 189, 202, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989), where government action is "so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience," Pena v. DePrisco, 432 F.3d 98, 112 (2d Cir. 2005) (quoting Lewis, 523 U.S. at 847, n.8, 118 S.Ct. 1708 ), that conduct runs afoul of the substantive due process clause.
As an initial matter, "[t]he first step in a substantive due process analysis is to identify the constitutional right at stake." Paige v. N.Y.C. Housing Auth., 2018 WL 3863451, at *10 (S.D.N.Y. Aug. 14, 2018) (citing Lowrance v. Achtyl, 20 F.3d 529, 537 (2d Cir. 1994) ). It is well established that "[t]he substantive component of due process encompasses, among other things, an individual's right to bodily integrity." Lombardi, 485 F.3d at 79 ; see also Washington v. Glucksberg, 521 U.S. 702, 720, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997). In evaluating bodily integrity claims, "the central tenet of the Supreme Court's vast bodily integrity jurisprudence is balancing an individual's common law right to informed consent with tenable state interests, regardless of the manner in which the government intrudes upon an individual's body." Guertin v. Michigan, 912 F.3d 907, 919 (6th Cir. 2019) (citing Cruzan v. Dir., Missouri Dep't of Health, 497 U.S. 261, 269-70, 110 S.Ct. 2841, 111 L.Ed.2d 224 (1990) ). In particular, "[i]nvoluntarily subjecting nonconsenting individuals to foreign substances with no known therapeutic value—often under false pretenses and with deceptive practices hiding the nature of the interference—is a classic example of invading the core of the bodily integrity protection." Guertin, 912 F.3d at 920-21. Plaintiffs assert their right to be free from bodily harm—here, from being subjected to poisoning from lead
paint particulates, Compl., ECF No. 21, ¶ 126, a "foreign substance with no known therapeutic value" and in the face of allegedly "deceptive practices hiding the nature [and extent] of the interference," Guertin, 912 F.3d at 920-21.
Having identified the constitutional right at stake, Plaintiffs must allege that a violation of that right was the product of a "state created danger."1 A state-created danger exists when a state agent acts affirmatively to "assist[ ] in creating or increasing ... danger to the victim", Pena, 432 F.3d at 108, by either acting as a "substantial cause of the danger or at least enhanc[ing] it in a material way," Estate of M.D. by DeCosmo v. New York, 241 F. Supp. 3d 413, 427 (S.D.N.Y. 2017). However, "where the government's control is lessened, so is its duty, and its failings are less likely to be of constitutional proportions." McClary v. O'Hare, 786 F.2d 83, 88-89 (2d Cir. 1986). For example, where a government employee makes substantive due process allegations related to conduct that has little or nothing to do with the employer's status as a state actor, the employer's actions cannot amount to a constitutional violation simply because he or she is a government official. See id. at 89 (...
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