Braxton v. Georgia Department of Community Affairs et al
Filing
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OPINION AND ORDER ADOPTING the 4 Final Report and Recommendation. IT IS FURTHER ORDERED that this action is DISMISSED. Signed by Judge William S. Duffey, Jr on 10/4/2013. (anc)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
SONYA BRAXTON, et al.,
Plaintiffs,
v.
1:13-cv-793-WSD
GEORGIA DEPARTMENT OF
COMMUNITY AFFAIRS, et al.
Defendants.
OPINION AND ORDER
This matter is before the Court on Magistrate Judge Walter E. Johnson’s
Final Report and Recommendation (“R&R”) [4].
I.
BACKGROUND
On March 11, 2013, Plaintiffs Sonya Braxton and Hannah Grace Braxton
(“Plaintiffs”) filed this action asserting multiple claims against the Georgia
Department of Community Affairs (“GDCA”), LaRuth Holloway (a GDCA
regional administrator), and Karen Loveless (a GDCA caseworker) (collectively
“Defendants”) arising out of Defendants’ conduct while Plaintiffs rented a house
with a Section 8 voucher between June 1, 2009, and November 2, 2009. Plaintiffs
allege that the rental house did not meet the Department of Housing and Urban
Development (HUD)’s required quality standards, and that Plaintiffs were exposed
to septic and sewer gas, hydrogen sulfide, and mold spores, all of which allegedly
caused Plaintiffs to develop lung ailments. Plaintiffs allege that on multiple
occasions between July 20, 2009, and September 4, 2009, they complained to
Loveless about the deficiencies with the rental house and that, after an inspection,
Loveless instructed the landlord to make certain repairs and otherwise address
Plaintiffs’ concerns. Plaintiffs’ claim their landlord failed to repair or improve the
property as instructed. Subsequently Plaintiffs were provided with a new voucher
to secure different housing.
Plaintiffs complain about the manner in which Loveless and the GDCA
handled their case. Plaintiffs’ shotgun complaint includes causes of action labeled:
(i) 42 U.S.C. § 1981-83; (ii) 42 U.S.C. § 1985(3); (iii) 42 U.S.C. § 1988(a); (iv)
“claims of Personal Injury”; (v) “the Georgia Tort Claims Act General Liability
Agreement and State Tort Claims Policy”; (vi) “State Created Danger”; (vii)
Retaliation; (viii) Deliberate Indifference; (ix) Negligence; (x) “Failure to Train
and Supervise”; (xi) “Conspiracy to Interfere with Civil Rights”; (xii) “Failure to
Warn”; (xiii) “Class of One”; (xiv) violations of the First and Fourteenth
Amendments of the United States Constitution; and (xv) “other implied violations
in physical injury.”
Plaintiffs moved to proceed in forma pauperis (“IFP”). On June 24, 2013,
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the Magistrate Judge granted Plaintiffs’ motion to proceed IFP, and recommended
that this action be dismissed as frivolous pursuant to 28 U.S.C. § 1915(e)(2). On
July 5, 2013, Plaintiffs filed objections to the R&R.
II.
DISCUSSION
A.
Legal Standard
After conducting a careful and complete review of the findings and
recommendations, a district judge may accept, reject, or modify a magistrate
judge’s report and recommendation. 28 U.S.C. § 636(b)(1) (Supp. V 2011);
Williams v. Wainwright, 681 F.2d 732, 732 (11th Cir. 1982) (per curiam). A
district judge “shall make a de novo determination of those portions of the report
or specified proposed findings or recommendations to which objection is made.”
28 U.S.C. § 636(b)(1). If no party has objected to the report and recommendation,
a court conducts only a plain error review of the record. United States v. Slay, 714
F.2d 1093, 1095 (11th Cir. 1983) (per curiam).
B.
Analysis
The Magistrate Judge noted that Plaintiffs have previously filed a case in
this Court asserting claims against the same Defendants named in this action and
arising out of the same facts.1 That case was dismissed without prejudice because
1
See Braxton v. Ga. Dep’t of Cmty. Affairs, 1:10-cv-2446-WSD.
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the Court concluded it was frivolous. The Magistrate Judge concluded that this
action also is frivolous, including because the Code of Federal Regulations provide
that there is no private right of action against a state or local public housing agency
(“PHA”) to enforce housing quality standards (“HQS”). 24 C.F.R. § 982.406
(“Part 982 does not create any right of the family, or any other party other than
HUD or the PHA, to require enforcement of the HQS requirements by HUD or the
PHA, or to assert any claim against HUD or the PHA, for damages, injunction or
other relief, for alleged failure to enforce the HQS.”).
The Magistrate Judge also concluded that Plaintiffs’ shotgun complaint
failed to explain how Defendants’ alleged conduct violates either the statutory or
constitutional provisions that Plaintiffs identify or gives rise to any of the alleged
state-law causes of actions Plaintiffs assert.
Plaintiffs object to the R&R’s conclusion that there is not a private right of
action against a public housing agency, and the Court thus conducts a de novo
review of this issue. The Code of Federal Regulations clearly provides that there is
no private right of action against HUD or a PHA. 24 C.F.R. § 982.406. Plaintiffs’
argument to the contrary relies solely on a non-binding case from Pennsylvania
that was vacated two months later. See McKinney v. Philadelphia Hous. Auth.,
No. 07-4332, 2010 WL 2510382 (E.D. Pa. June 16, 2010) (vacating its April 20,
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2010, memorandum and order). Plaintiffs’ objection is overruled. The Court
concludes that Plaintiffs do not have a private right of action against the GDCA.
Plaintiffs’ remaining objections to the R&R merely reiterate their claims,
and do not specifically respond to the findings and conclusions of the R&R.
Accordingly, the Court reviews the remainder of the R&R for plain error.
Having conducted a complete and careful review of the R&R, the Court does
not find error with the Magistrate Judge’s conclusion that this action is frivolous.
Plaintiffs have not alleged sufficient facts to show that Defendants’ actions were
improper under the legal theories identified. See 28 U.S.C. 1915(e)(2)(B)(i); see
also Carroll v. Gross, 984 F.2d 392, 393 (11th Cir. 1993) (establishing that a
claims is frivolous when it appears “from the face of the complaint that the factual
allegations are clearly baseless or that the legal theories are indisputably meritless).
Plaintiffs fail to explain how Defendants’ conduct violates federal statutory or
constitutional law, or forms a proper basis for the causes of action Plaintiffs have
asserted. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007) (a complaint
must contain “enough facts to state a claim of relief that is plausible on its face.”);
Ashcroft v. Iqbal, 556 U.S. 662,678 (2009) (“A claim has facial plausibility when
the plaintiff pleads factual content [entitled to assumption of truth] that allows the
court to draw the reasonable inference that the defendant is liable for the
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misconduct alleged.”). The Court adopts the R&R, and concludes that Plaintiffs’
action is frivolous and is required to be dismissed.
III.
CONCLUSION
Accordingly, for the foregoing reasons,
IT IS HEREBY ORDERED that the court ADOPTS Magistrate Judge
Walter E. Johnson’s Final Report and Recommendation [4] and Plaintiff’s
Response in Opposition to the R&R [7] is OVERRULED.
IT IS FURTHER ORDERED that this action is DISMISSED.
SO ORDERED this 4th day of October, 2013.
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