Thursday, April 22, 2010

housing - sec. 8 - housing quality standards - no private right of action - municipal liability - state-created danger

McKinney et al. v. Philadelphia Housing Authority - ED Pa. - April 20, 2010

No private right of action based on housing quality standard provisions in statute/regulations

The cases indicate an identifiable taxonomy,where certain kinds of statutorylanguage clearly create personal rights and other kinds do not. When the subject of the statutory language is the party for whose benefit the statute is intended, such as in Titles VI and IX (“No person . . . shall be subjected to discrimination”) Congress has shown an “unmistakable focus on the benefited class” and it is clear that the statute confers a personal right. See Cannon, 441 U.S. at 691–93.

When the subject of the statutory language is not the intended beneficiary, but the statutory provision mandates that a regulated entity provide an enumerated right to an enumerated beneficiary, the Third Circuit has concluded that the statute creates personal rights. This is because these cases are “difficult, if not impossible, as a linguistic matter, to distinguish” from cases in which the intended beneficiary of the statute is the subject of the statutory language. See Sabree, 376 F.3d at 190. Examples include the statutory language in Sabree, whichmandated that statemedical assistance plans ensure that medical assistance shall be furnishedwith reasonable promptness to all eligible individuals, and Grammer, which required nursing facilities to protect and promote the rights of each resident, including the right to choose a personal attending physician. See 367 F.3d at 189; 570 F.3d at 529.

However, when the statutory language speaks of a primary subject—the object of the regulation—and a secondary subject, who benefits from the regulation of the primary subject, no personal rights are created. See Newark Parents, 547 F.3d at 210. Such language does not speak of the rights or entitlements of the secondary subject, but only of the obligations of the primary subject. Because the focus of these statutes “is on the entity regulated and is at least one step removed from the interests of” the intended beneficiary, courts will not find personal rights in such cases. See id.

Given this framework, the Court determines that neither of the Housing Act provisions Section 1437f(o)(8) states “[F]or each dwelling unit for which a housing assistance payment contract is established under this subsection, the public housing agency shall inspect the unit before any assistance payment is made to determine whether the dwelling unit meets the housing quality standards under subparagraph (B).” 42 U.S.C. § 1437f(o)(8)(A). Section 1437d(f) states, in relevant part: “(1) Each contract for contributions for a public housing agency shall require that the agency maintain its public housing in a condition that complies with . . . the housing quality standards . . . . (2) The Secretary shall establish housing quality standards . . . that ensure that public housing dwelling units are safe and habitable. . . .” 42 U.S.C. § 1437d(f).

Plaintiffs point to in the present case create personal rights. The statutes Plaintiffs seek to enforce, 42 U.S.C. §§ 1437f(o)(8) and 1437d(f),3 do not even mention the intended beneficiary of the regulation. Since the statutory provisions under which Plaintiffs bring their claims against PHA are not privately enforceable, neither are the regulatory provisions they cite. See Sandoval, 532 U.S. at 291 (“[I]t is most certainly incorrect to say that language in a regulation can conjure up a private cause of action that has not been authorized byCongress.”); Three Rivers, 382 F.3d at 424 (“[A] regulation cannot ‘create a right enforceable through section 1983 where the alleged right does not appear explicitly in the statute, but only appears in the regulation.’” (quoting S. Camden Citizens in Action v. N.J. Dep't of Envtl. Prot., 274 F.3d 771, 781 (3d Cir. 2001))). Therefore, the Court concludes that Plaintiffs do not have a private right of action to enforce 42 U.S.C. §§ 1437f(o)(8), 1437d(f), or their associated regulations under either 42 U.S.C. § 1983 or an implied right of action, because those provisions of law do not create personal rights.

Municipal liability - state-created danger

Defendant's motion for summary judgment rejected on this claim, because, inter alia, "[b]ut for PHA’s approval of the Scattergood property, Plaintiffs would not be living there and never would have been exposed to the alleged dangers therein. Without PHA’s payment of the rent for the Scattergood property, Plaintiffs would not be living in the home and exposed to its damp air. And but for the alleged appointment and notice requirement, Plaintiffs almost certainlywould have been out of the Scattergood property earlier and faced less exposure to the alleged dangers within the home. Thus, on their face, PHA’s acts were but-for causes of Plaintiffs’ harm.

The other requirements of DeShaney v. Winnebago County Dep’t of Soc. Servs., 489 U.S. 189 (1989) were adequately pleaded, to avoid summary judgment. Kneipp v. Tedder, 95 F.3d 1199 (3d Cir. 1996). To establish a claim based on the state-created danger doctrine, a plaintiff must satisfy the following elements: (1) the harm causedwas foreseeable and fairly direct; (2) a state actor acted with a degree of culpability that shocks the conscience; (3) some relationship existed between the state and the plaintiff that renders plaintiff a foreseeable victim; and (4) “a state actor affirmatively used his or her authority in a way that created a danger to the citizen or that rendered the citizen more vulnerable to danger than had the state not acted at all.” Bright v. Westmoreland County, 443 F.3d 276, 281 (3d Cir. 2006).