More Success in the 6th Circuit – Lewis v. Wheatley

Posted on June 27th, 2013 by sutter-admin

On June 7, 2013, the Sixth Circuit U.S. Court of Appeals affirmed a recent victory in Lewis v. Wheatley et al. In Lewis, the plaintiffs were a family living in Section 8 housing. They sued Ashtabula Metropolitan Housing Authority (“AMHA”) and others alleging that they suffered “catastrophic and debilitating injuries” as a result of exposure to “microbiological contaminants” present at their residence. Plaintiff brought a civil rights claim pursuant to 42 U.S.C. § 1983 on two grounds: (1) AMHA failed to properly implement the regulations set forth in the United States Housing Act of 1936, and (2) the microbiological contaminants were a “state-created danger.” Doug Simek, partner at Sutter O’Connell, promptly filed a Motion to Dismiss on behalf of AMHA. Doug successfully argued that (1) the United State Housing Act (“USHA”) does not create a private right of action and (2) a “state-created danger” must be created through affirmative acts, not omissions. The Plaintiffs’ appealed the decision. Christina Marshall, partner and head of Appellate Division at Sutter O’Connell, successfully convinced the Sixth Circuit to affirm the dismissal. First, the Court agreed that the United States Housing Act does not create a private right of action. As the Court recognized, USHA is merely a policy statement. Although the regulations certainly benefit residents, the Court reasoned that AMHA is focused on the entities being regulated, not creating rights enforceable by individual tenants. Second, the Court agreed that AMHA’s alleged inaction could not constitute a “state-created danger.” The state-created danger doctrine applies “when the State takes a person into its custody and holds him there against his will, the constitution imposes upon it a corresponding duty to assume some responsibility for his safety and general well-being.” DeShaney v. Winnebago County Department of Social Services, 489 U.S 189, 199-200 (1989). State-created danger must be created through the State’s affirmative acts. Any omission or failure to act cannot sustain an action under the state-created danger doctrine. The Plaintiffs alleged only that AMHA exposed them to a state-created danger by failing to inspect the Section 8 rental property. As such, Plaintiffs failed to allege that AMHA committed any affirmative act. As the court stated; “these plaintiffs have not shown that state actor took any affirmative action that exposed the plaintiffs to any danger to which they were no already exposed.”