Wright v. City of Phila.
| Decision Date | 02 March 2015 |
| Docket Number | CIVIL ACTION NO. 12-114,CIVIL ACTION NO. 10-1102,CIVIL ACTION NO. 11-5990 |
| Court | U.S. District Court — Eastern District of Pennsylvania |
| Parties | KYEESHAH WRIGHT, ET AL. v. CITY OF PHILADELPHIA ET AL. JACQUELINE LISA GOINS, ET AL. v. CITY OF PHILADELPHIA ET AL. SHENIA BANKS v. CITY OF PHILADELPHIA, ET AL. |
MEMORANDUM
Presently before the Court are Defendants' Motions to Dismiss. (Wright ECF No. 13; Wright ECF No. 14; Goins ECF No. 8; Goins ECF No. 9; Banks ECF No. 2.) For the following reasons, Defendants' Motions will be granted in part and denied in part.
On May 21, 2010, Plaintiff Kyeesha Wright, on behalf of herself and her three children, Plaintiffs Emira Wright, Tatyanna Wright, and Malik Singleton-Wright, filed an amended complaint alleging claims against Defendant Philadelphia Housing Authority ("PHA"), and PHAemployees Defendants Carl R. Greene, Carolyn Carter, Daniel J. Quimby, Keith Caldwell, William Emmitt, and David Tillman.1 (Wright Compl., Wright ECF No. 11.) This lawsuit arises out of Plaintiffs' exposure to asbestos from September 2009 until January 2010. The Wright Complaint sets forth claims under Monell v. Department of Social Services, 436 U.S. 658 (1978) (Count I), state-created danger (Count II), annual medical monitoring (Count III), violations of 42 U.S.C. § 1983, the United States and Pennsylvania Constitutions, and Pennsylvania laws (Counts IV-VII),2 and state-law negligence, battery, and future medical monitoring (Count VIII). On July 19, 2010, Defendants PHA, Carter, Quimby, Caldwell, Emmitt, and Tillman filed a Motion to Dismiss. (PHA Defs.' Mot. Dismiss, Wright ECF No. 14.) Defendant Greene joined the Motion and filed a separate Motion to Dismiss. (Greene Def.'s Mot. Dismiss, Wright ECF No. 13.) Wright filed a response on August 26, 2010. (Pls.' Resp., Wright ECF No. 18.)
On September 22, 2011, Plaintiff Jacqueline Lisa Goins, on behalf of herself and her daughter Naeem Curtis Goins, filed a complaint that is identical to the Wright Complaint in all material respects. (Goins Compl., Goins ECF No. 1.) The Goins Complaint added one additional defendant, Michael P. Kelly, who succeeded Greene as PHA's Administrative Receiver and Executive Director. (Goins Complaint ¶¶ 8-9.) On November 8, 2011, Defendants filed a Motion to Consolidate the Goins Complaint and the Wright Complaint. (Goins ECF No. 5.) On November 22, 2011, Judge Thomas N. O'Neill granted Defendants' motion and ordered that the cases be consolidated. (Goins ECF No. 7.) Defendants Greene, Kelly, PHA, Quimby,and Tillman subsequently filed a Motion to dismiss the Goins Complaint on December 8, 2011. (Goins ECF No. 8.) Also on December 8, 2011, Defendants Caldwell, Carter, and Emmit filed a Motion to dismiss the Goins Complaint. (Goins ECF No. 9.) In both Motions, Defendants simply adopted and incorporated the PHA Defendants' Motion to Dismiss and Greene's Motion to Dismiss that were filed in Wright. The Defendants did not raise new or additional arguments or issues. In fact, Defendants just re-submitted the motions and briefs from Wright.
On January 10, 2012, Plaintiff Shenia Banks filed a complaint alleging claims identical to the Wright and Goins Complaints against all Defendants named in the Goins Complaint. (Banks Compl., Banks ECF No. 1.) The Banks Complaint concerned all of the same facts and circumstances in the Wright and Goins Complaints. On February 21, 2012, Defendants filed a Motion to Dismiss the Banks Complaint. (Banks ECF No. 2.) Defendants again simply adopted and incorporated the PHA Defendants' Motion to Dismiss and Greene's Motions to Dismiss filed in Wright, without raising additional issues or arguments. Banks filed a response on February 29, 2012, which simply adopts the response to the Motion to dismiss filed in the Wright case (ECF No. 4). We have entered an Order consolidating the Banks case with the Wright and Goins cases. (Case No. 10-1102, ECF No. 26.)
Despite the somewhat confusing procedural history here, the Motions before the Court are straightforward. The same two motions to dismiss—the PHA Defendant's Motion to Dismiss and Greene's Motions to Dismiss—were submitted in the two consolidated cases and in the Banks case. Because the facts of these cases are very similar, we will note differences only when they impact the legal analysis of the Motions. Likewise, because the Motions themselves substantially overlap, we treat them separately only where they raise distinct arguments.
In September 2009, Wright resided with her three children in unit 517 in the Hill Creek Apartments, which she leased from PHA. (Wright Compl. ¶¶ 20-21.) In September, PHA sent maintenance workers to their home to repair a leaking pipe. (Id. at ¶ 21.) To fix the pipe, the workers broke through a wall in their basement. (Id. at ¶ 22.) Rudy Barbosa, a PHA employee, and Robert Smith, a construction worker, observed PHA plumbers tearing asbestos insulation off pipes and tossing debris onto the apartment floor, sending asbestos particles and fibers in the air. (Id. at ¶ 23.) Defendant Emmitt, a PHA maintenance supervisor, was present during this incident. (Id. at ¶ 26.) Smith complained to Emmitt about the presence of asbestos in the apartment and the danger it presented. (Id. at ¶ 26.) Notwithstanding these complaints, Emmitt directed Barbosa and Smith to scoop up the asbestos and the debris with a shovel and dump them into the hole in the wall. (Id. at ¶ 27.) Barbosa and Smith then used drywall and plaster to patch up the wall. (Id. at ¶ 28.) Unbeknownst to Emmitt, Smith photographed the scene and placed a pile of the debris in a plastic bag. (Id. at ¶ 29.)
Emmitt informed Wright that the "repairs were going well." (Id. at ¶ 30.) When Wright inquired about "the little white stuff floating in the air," Emmitt responded that she did not need to not worry about that. (Id. at ¶ 31.) Relying on Emmitt's assurance, Wright and her children continued to reside in the apartment. (Id. at ¶ 32.)
On January 22, 2010, a reporter from the Philadelphia Daily News appeared at Wright's door and informed her that her apartment may have an asbestos problem. (Id.) In the followingweeks, the Asbestos Control Unit of the Philadelphia Health Department, the Environmental Protection Agency ("EPA"), and the Philadelphia Daily News inspected and tested the apartment for asbestos. (Id. at ¶ 33.) The testing performed by the Philadelphia Health Department revealed the presence of asbestos in Wright's basement. (Id. at ¶ 34.) The Department immediately sealed off the basement and affixed a bright orange warning sign to the door. (Id.) The testing done on behalf of the Philadelphia Daily News also found asbestos. (Id. at ¶ 35.) The "visual only" inspection performed on behalf of PHA found no asbestos. At the time the Wright Complaint was filed, the EPA had not yet issued its findings. (Id. at ¶ 36.)
PHA advised Wright to throw away all of the family's clothing and the Philadelphia Health Department recommended that Wright discard all of the personal property in her basement, including clothing, toys, and furniture. (Id. at ¶¶ 38-39.) Wright followed the Philadelphia Health Department's recommendation and discarded over $10,000 in personal property. PHA retained an asbestos abatement contractor to repair the pipe insulation and clean out the basement. (Id. at ¶ 38.) The Philadelphia Health Department has required that Wright and her children vacate the premises. At the time the Complaint was filed, Wright and her children had been living in temporary housing. (Id. at ¶ 40.)
In September 2009, Goins resided with her daughter in apartment unit 515 in the Hill Creek Apartments, which was adjacent to Wright's apartment. (Goins Compl. ¶¶ 19-20.) When PHA maintenance workers were fixing leaking pipes in Wright's apartment, as described above, they broke through a wall in the basement that joined Wright's and Goins's apartments. (Id. at ¶ 21.) Goins was unaware of the scope of work performed in Wright's apartment until she read about it in the Daily News in February 2010. (Id. at ¶ 30.) After reading about the work done inWright's apartment, Goins spoke to Wright about it. (Id. at ¶ 32.) Wright informed Goins that the air in her basement had tested positive for the presence of asbestos. (Id. at ¶ 33.) She further informed Goins that her basement had been sealed off, that she was advised to discard clothing and other personal property that had been in the basement, and that she had been required to vacate the apartment for her safety and welfare. (Id. at ¶¶ 33, 37-39.) Goins then recalled that in the fall of 2009, she had observed airborne white materials in the air of her basement. (Id. at ¶ 41.)
In September 2009, Banks resided in apartment unit 509 in the Hill Creek Apartments, which was adjacent to Wright's apartment. (Banks Compl. ¶¶ 19-20.) When PHA maintenance workers were fixing leaking pipes in Wright's apartment, as described above, they broke through a wall in the basement of Bank's apartment. (Id. at ¶ 21.) Banks was unaware of the scope of work performed in Wright's apartment until she discussed it with Wright in March 2010. (Id. at ¶ 29.) Wright informed Banks that her basement tested positive for the presence of asbestos. (Id. at ¶ 31.) Wright also informed Banks that her basement had been sealed off and that the Philadelphia Health Department had ordered PHA to remediate the asbestos in her basement. (Id. at ¶ 34.) Because of concern about possible asbestos contamination, Banks hired an independent contractor to do sampling and testing to determine if there was asbestos in her basement. (Id. at ¶ 35.) When the test occurred on July 20, 2010, asbestos fibers, debris and contamination were found to be present. (Id. at ¶ 2.)
Plaintiffs allege that from as...
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