E.D.Pa: No Cause of Action For Lead Paint Poisoning

The district court for the Eastern District of Pennsylvania held that there is neither an implied private right of action nor a cause of action under 42 U.S.C. § 1983, to enforce applicable housing statutes when a child is injured by lead paint poisoning in housing subsidized by the Section 8 voucher program.  Reynolds v. PBG Enterprises, LLC, No. 10-4373, 2011 WL 2678589 (E.D.Pa. July 6, 2011). The judge is a Carter appointee.

Christine Reynolds leased an apartment with PGB Enterprises, LLC through a Section 8 voucher provided by the United States Department of Housing and Urban Development and the Delaware County Housing Authority (DCHA).   The lease was between Reynolds and PGB, and a separate contractual agreement was made between DCHA and PBG for the Section 8 housing voucher. Reynold’s son, M.M., was alleged to have been exposed to lead paint at the property.  Due to this high level of lead exposure, M.M. suffered from abnormal behavior and cognitive responses.

Reynolds brought suit against PGB and DCHA on behalf of her minor child, M.M., arguing that DCHA had a duty to inspect the premises to ensure this hazardous substance was not on the premises and failed to take action to remove the lead paint from the premises. She asserted state tort claims and constitutional claims.  She also asserted a cause of action under 42 U.S.C. § 1983 as well as implied private rights of action for violations of  1) The Lead Based Paint Poisoning Prevention Act (LBPPPA), 42 U.S.C. § § 4821, 4822; 2) The Residential Lead-Based Paint Hazard Reduction Act (RLBPHRA), 42 U.S.C. § 4852-56; and 3) the United States Housing Act (USHA), 42 U.S.C. § § 1437-1437bbb-9.

DCHA filed a motion to dismiss. The Court examined whether the pleaded statutes “confer personal rights upon plaintiffs.”   Citing Gonzaga University v. Doe, 536 U.S. 273 (2002), the court stated: “The Supreme Court has explained that this inquiry is the same whether the court is analyzing the claim through the lens of § 1983 or as an implied private right of action.”

In regards to the LBPPPA claims, the Court concluded that the language did not “clearly and unambiguously” confer personal rights on Section 8 tenants.  While the Court found Section 8 tenants to be beneficiaries of the statute, it did not agree that Congress’ language conferred a personal right on these beneficiaries.   The statute does not focus on individuals and their rights, but rather it only speaks in “institutional policy” terms that are not focused on the needs of a particular group.   The Court concurred with the Sixth Circuit’s decision in Johnson v. City of Detroit, 446 F.3d 614 (6th Cir. 2006) that the statutory language of LBPPPA focused on the duties of the regulating entity and cannot be deemed to confer rights on class of persons.  Thus, it dismissed the LBPPPA claim.

Next, the Court examined whether the RLBPHRA conferred a personal right on the plaintiff.  The amended claim cited sections 4851 and 4852 of the RLBPHRA.  The Court disregarded section 4851 in its evaluation because it did not have operative language.  However, it did find that section 4852d might confer a personal right on the plaintiffs because this section requires that warning statements, disclosures and pamphlets be presented by a “seller or lessor.”

The Court found three problems with Reynolds claim.  First, as the plaintiff asserts a section 1983 claim, the existence of a remedy precludes her from using this recourse.  Second, Reynolds cannot sue on behalf of her son because the statute refers to a lessee and purchaser relationship and not to a resident.  Third, even if Reynolds sued under her own right, she has no cause of action because the lessor is not DCHA but rather PBG.   Therefore, the amended claim failed to make a plausible claim to grant relief.

Finally, the plaintiff cited USHA section 1437 and 1437, et. seq.  As the complaint was not specific as to which citation they would use, the Court was unable to decipher what claim the plaintiff was making.  The Court agreed with the Sixth Circuit’s decision in Johnson, which analyzed the language of sections 1437, 1437f and 1437d and concluded that these sections did not confer a personal right.

Reynolds raised two federal constitutional claims alleging violations of her Fifth and Fourteenth Amendment rights “to remain safe and free from harm and to be secure in their person from governmental action.”  Yet, the District Court stated that the Fifth Amendment claim failed because it did not apply to the actions of private entities or states, and the claim was dismissed. The Court also dismissed Reynolds’ Fourteenth Amendment because the plaintiff merely stated that DCHA deprived her of her statutory rights not a constitutional right.  As no constitutional specificity was given, the Fourteenth Amendment claim was dismissed.

DCHA asked for dismissal of tort claims brought against it because of the Pennsylvania Sovereign Immunity Act, which makes Commonwealth Agencies, such as DCHA immune to tort claims.  The Court found an exception to Reynold’s negligence claim and that DCHA may not be immune to the Sovereign Act under the exception of Commonwealth real estate.   Under the exception, a Commonwealth agency could be held liable for real estate negligence for damages caused by a “dangerous condition of Commonwealth agency real estate and sidewalks, including Commonwealth-owned real property, leaseholds in the possession of a Commonwealth agency and Commonwealth-owned real property leased by a Commonwealth agency to private persons, and highways under the jurisdiction of a Commonwealth agency.”  42 Pa.C.S. § 8522(b)(4).  However, as the DCHA was merely a participant in the Section 8 program and it was not the owner of the property, the real estate exception to the Sovereign Immunity Act did not apply and the negligence claim was dismissed.

Finally, the Court dismissed the contract claim against DCHA because the parties were non-diverse.  The Court also dismissed review of the case under supplemental jurisdiction.

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