BANKS v. PHILADELPHIA HOUSING AUTHORITY (PHA) et al
MEMORANDUM AND/OR OPINION SIGNED BY HONORABLE R. BARCLAY SURRICK ON 3/2/15. 3/3/15 ENTERED AND COPIES E-MAILED.(ti, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
KYEESHAH WRIGHT, ET AL.
CITY OF PHILADELPHIA ET AL.
JACQUELINE LISA GOINS, ET AL.
CITY OF PHILADELPHIA ET AL.
CITY OF PHILADELPHIA, ET AL.
MARCH 2 , 2015
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 PHA
employees 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,
On July 27, 2010, the claims against the City of Philadelphia were dismissed by a
Stipulation approved by the Court. (See Wright ECF Nos. 15, 16.)
Specifically, Count IV is against PHA, Count V is against Greenee, Carter, Quimby,
and Caldwell, Count VI is against Emmitt, and Count VII is against Tillman.
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.
Factual Background 3
The Wright Complaint
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 following
For purposes of these Motions, the factual allegations in the Complaint are taken to be
true. See Rocks v. City of Phila., 868 F.2d 644, 645 (3d Cir. 1989).
weeks, 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. (Pls.’ Resp. Ex. A.) 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.)
The Goins Complaint
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 in
Wright’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 ¶
The Banks Complaint
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.)
Defendants’ Policies 4
Plaintiffs each allege the same facts about Defendants’ policies. We cite only to the
Plaintiffs allege that from as early as 2004, Defendants have had a policy of failing to
disclose the presence of asbestos in property owned and operated by PHA. (Wright Compl. ¶
45.) Plaintiffs allege that Defendants have utilized unsafe and unlawful practices for disposing
of and handling asbestos found in PHA properties. (Id. at ¶ 46.) In addition, Plaintiffs contend
that Defendants punish PHA employees who complain about the dangerous methods of handling
asbestos. (Id. at ¶ 47.)
On February 1 and 2, 2010, the Philadelphia Daily News printed two articles about the
incident that occurred at Wright’s apartment and PHA’s policies concerning asbestos removal.
(Id. at Exs. A & B.) In the first article, Smith and Barbosa described how they followed the
orders of their supervisor, Emmitt, and shoveled the exposed asbestos debris back into a hole in
the wall. (Id. at Ex. A.) These practices, they maintain, were routine at the Hill Creek
Apartments. (Id.) PHA general manager, Defendant Tillman, denied the allegations and
dismissed Smith as a “disgruntled employee.” (Id.) According to the second article, more than a
dozen former and current PHA workers called the Daily News and described the incident at
Wright’s apartment as common. (Id. at Ex. B.) The workers contended that supervisors often
ordered them to discard asbestos debris inside walls or toss it into PHA dumpsters. (Id.) Those
who refused to comply were fired. (Id. at Exs. A & B.) The articles recount other similar
incidents involving PHA employees. (Id. at Exs. A & B.)
Plaintiffs argue that Defendants’ policies regarding asbestos removal violate EPA
regulations, Pennsylvania Department of Environmental Protection regulations, the Pennsylvania
Asbestos Occupations Abatement Accreditation and Certification Act, and the Philadelphia
Under Federal Rule 8(a)(2), “[a] pleading that states a claim for relief must contain a
short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ.
P. 8(a)(2). Rule 12(b)(6) provides for the dismissal of a complaint, in whole or in part, for
failure to state a claim upon which relief can be granted. See Fed. R. Civ. P. 12(b)(6). A motion
under Rule 12(b)(6), therefore, tests the sufficiency of the complaint against the pleading
requirements of Rule 8(a). “To survive a motion to dismiss, a complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). A complaint that merely alleges entitlement to relief, without alleging facts that show
entitlement, must be dismissed. See Fowler v. UPMC Shadyside, 578 F.3d 203, 211 (3d Cir.
2009). Courts need not accept “[t]hreadbare recitals of the elements of a cause of action,
supported by mere conclusory statements . . . .” Iqbal, 556 U.S. at 678. “While legal
conclusions can provide the framework of a complaint, they must be supported by factual
allegations.” Id. at 679. This ‘“does not impose a probability requirement at the pleading stage,’
but instead ‘simply calls for enough facts to raise a reasonable expectation that discovery will
reveal evidence of’ the necessary element.” Phillips v. Cnty. of Allegheny, 515 F.3d 224, 234 (3d
Cir. 2008) (quoting Twombly, 550 U.S. at 556).
In determining whether dismissal of the complaint is appropriate, courts use a two-part
analysis. Fowler, 578 F.3d at 210. First, courts separate the factual and legal elements of the
claim and accept all of the complaint’s well-pleaded facts as true. Id. at 210-11. Next, courts
determine whether the facts alleged in the complaint are sufficient to show that the plaintiff has a
“‘plausible claim for relief.’” Id. at 211 (quoting Iqbal, 556 U.S. at 679). Given the nature of
the two-part analysis, “‘[d]etermining whether a complaint states a plausible claim for relief will
. . . be a context-specific task that requires the reviewing court to draw on its judicial experience
and common sense.’” McTernan v. City of York, 577 F.3d 521, 530 (3d Cir. 2009) (quoting
Iqbal, 556 U.S. at 679).
Legal Harm under Section 1983
Defendants argue as a threshold matter that Plaintiffs have not suffered any legal harm.
This argument is based in part on Defendants’ suggestion that Plaintiffs may not recover for
emotional distress arising out of their exposure to asbestos. Defendants’ argument stems from
Plaintiffs’ allegations about the effect of asbestos exposure on their health. (See Wright Compl.
¶ 42; Goins Compl. ¶¶ 41-42; Banks Compl. ¶¶ 35-36.) Defendants describe this emotional
distress as the “sole harm averred” in the Complaints. However, they included a footnote in their
Motion noting that Wright lost personal property in her basement because of the asbestos. (See
PHA Defs.’ Mot. Dismiss 11 & n.4.)
Defendants are correct that Plaintiffs may not recover for their emotional distress. See
Fontroy v. Owens, 150 F.3d 239, 244 (3d Cir. 1998) (finding no § 1983 cause of action for
emotional distress caused by exposure to asbestos where plaintiff suffered no present physical
injury); Simmons v. Pacor, Inc., 674 A.2d 232, 238 (Pa. 1996) (finding no recovery for
emotional distress caused by increased fear of cancer).
Plaintiffs admit that they have not manifested any physical injuries as a result of their
exposure to asbestos. Indeed, Plaintiffs agree with Defendants that they may not bring suit for
emotional distress under these circumstances. Plaintiffs contend, however, that they sustained
injuries in the form of property loss and expenses for future medical monitoring. We are
satisfied that Plaintiffs have alleged legally cognizable harms.
Initially, Wright has properly made a claim for compensatory damages. Wright argues
that she had to discard more than $10,000 in personal property from her basement because of its
exposure to asbestos. Compensatory damages for monetary harm are recoverable under § 1983.
See Memphis Cmty. Sch. Dist. v. Stachura, 477 U.S. 299, 307 (1986). Defendants did not
respond to this argument. They did recognize the property loss as a possible harm in a footnote,
but failed to explain why this does not constitute an injury in Wright’s federal or state-law
claims. We note that neither Banks nor Goins claims to have suffered any loss of personal
property because of asbestos exposure.
Next, we must decide whether medical monitoring is a compensable injury under § 1983.
The text of § 1983 does not provide the answer. Consequently, we apply the analysis mandated
by 42 U.S.C. § 1988 to determine if medical monitoring may be properly pled as damages under
§ 1983. See Fontroy v. Owens, No. 86-4958, 1996 WL 571149, at *3 (E.D. Pa. Oct. 2, 1996),
aff’d, 150 F.3d 239 (3d Cir. 1998) (applying § 1988 to determine whether damages for emotional
distress is permitted under § 1983). Section 1988 sets forth a three-step process for identifying
sources of law when the relevant rule is absent. Burnett v. Grattan, 468 U.S. 42, 47-48 (1984).
Initially, the courts must determine whether the civil rights statutes themselves provide a rule
that carries the statutes into effect. If the statutes contain a deficiency, the court then looks to the
state law of the forum to fill the gap. Finally, the court applies state law only if it is not
“inconsistent with the Constitution and laws of the United States.” Id. at 48 (quoting § 1988);
see Fontroy, 153 F.3d at 24. “In resolving questions of inconsistency between state and federal
law raised under § 1988, courts must look not only at particular federal statutes and
constitutional provisions, but also at ‘the policies expressed in [them].’” Robertson v. Wegmann,
436 U.S. 584, 590 (1978) (citations omitted).
In Fontroy, the court undertook this three-step inquiry to address the issue of whether
§ 1983 permitted the recovery of monetary damages for fear of contracting cancer from the
exposure to asbestos absent physical injury. 1996 WL 571149, at *3. After determining that the
federal civil rights statutes do not contain an applicable rule, the court looked to a Pennsylvania
Supreme Court decision, which held that the fear of asbestos-related cancer is not a compensable
injury. Id. (citing Simmons, 674 A.2d at 238). Since this rule of law was neither inconsistent
with federal law nor inimical to the policies underlying § 1983, the court applied Pennsylvania
law to the plaintiff’s constitutional claim. Id. at *4.
In this case, Plaintiffs cite the case of Redland Soccer Club, Inc. v. Department of the
Army, 696 A.2d 137 (Pa. 1997), a Pennsylvania Supreme Court decision, in support of their
argument that medical monitoring is an actionable harm under § 1983. Defendants counter that
physical injury is a prerequisite to recovery. Defendants also contend that the United States
Supreme Court case Metro-North Commuter R.R. v. Buckley, 521 U.S. 424 (1997) militates
against Plaintiffs’ argument. While the parties do analyze these authorities, they do not address
the legal framework set forth in § 1988, within which Congress requires the courts to identify
sources of law under the civil rights statutes. We will apply the § 1988 framework to the
arguments of the parties.
As noted above, federal law does not specify whether § 1983 allows for the recovery of
damages in the form of medical monitoring. See Fontroy, 1996 WL 571149, at *3. We
therefore turn to Pennsylvania law to fill the void left by federal law. The Pennsylvania Supreme
Court recognizes damages for expenses incurred for medical monitoring. Simmons, 674 A.2d at
239-40; Redland, 696 A.2d at 145-46. In Simmons, the Court, relying in part on the reasoning of
a Third Circuit case, recognized that recovery for medical monitoring is “appropriate and just.”
However, Simmons involved plaintiffs diagnosed with asymptomatic pleural thickening caused
by occupational exposure to asbestos. 674 A.2d at 239 (citing In re Paoli R.R. Yard PCB Litig.,
916 F.2d 829 (3d Cir. 1990)). In Redland, when the plaintiffs sought the creation of a medical
monitoring trust fund, the Court determined that a common-law claim for medical monitoring
exists in Pennsylvania. 696 A.2d at 139-40, 145. The Court in Redland determined that to
prevail on a common-law claim for medical monitoring, a plaintiff must prove the following
elements: 1) exposure greater than normal background levels; 2) to a proven hazardous
substance; 3) caused by the defendant’s negligence; 4) as a proximate result of the exposure,
plaintiff has a significantly increased risk of contracting a serious latent disease; 5) a monitoring
procedure exists that makes the early detection of the disease possible; 6) the prescribed
monitoring regime is different from that normally recommended in the absence of the exposure;
and 7) the prescribed monitoring regime is reasonably necessary according to contemporary
scientific principles. Id. at 145-46. Contrary to Defendants’ suggestion, there is nothing in these
elements that requires Plaintiffs to manifest physical symptoms of asbestos exposure before they
may recover the cost of medical monitoring. 5
Defendants cite Simmons in support of their argument that a medical monitoring claim
requires physical symptoms. Simmons, however, did not articulate the elements of a medical
monitoring cause of action. The court recognized medical monitoring as a viable tort, but the
plaintiffs did not seek relief on that ground. Simmons ,674 A.2d at 239-40. In Redland, the court
for the first time announced the elements of the tort. 696 A.2d at 145-46. Plaintiffs point out,
and we agree, that there is no requirement that the plaintiff manifest physical symptoms from the
exposure to the hazardous substance. Id. at 144 (“‘The injury in a medical monitoring claim is
the cost of the medical care.’” (quoting In re Paoli, 916 F.2d at 850)). Defendants do not
respond to this argument.
The final step of the inquiry focuses on the predominance of the federal interest: courts
are to apply state law only if it is consistent with the Constitution and federal law. Burnett, 468
U.S. at 48. In Buckley, the Supreme Court held that a railroad worker who was negligently
exposed to asbestos, but without any physical symptoms, could not recover for negligent
infliction of emotional distress under the Federal Employers’ Liability Act (“FELA”), 45 U.S.C.
§§ 51 et seq. 521 U.S. at 426-27. The plaintiff also sought, and the Second Circuit permitted,
lump-sum damages for related medical costs. Id. at 438-40. The parties in Buckley did not
dispute that an exposed plaintiff can recover reasonable medical monitoring costs if and when
symptoms develop. Id. at 438. As for the question before the Court—whether medical costs
arising out of the negligent exposure to a toxic substance constitute a sufficient basis for tort
recovery—there were no other FELA decisions on point.
The Court in Buckley surveyed state-law cases, including the Third Circuit case applying
Pennsylvania law relied upon by Simmons, to answer this question. Id. at 440 (reviewing cases,
including In re Paoli, 916 F.2d 829). The Court found that the state-law cases that permitted
recovery did not endorse a traditional cause of action for lump-sum damages. Id. at 440-41.
Instead, the courts in these cases imposed special limitations on the medical monitoring
recovery, such as creating court-supervised funds. See, e.g., Ayers v. Jackson, 525 A.2d 287,
314 (N.J. 1987); Hansen v. Mountain Fuel Supply Co., 858 P.2d 970, 982 (Utah 1993).
After weighing the competing considerations—the difficulty in determining the necessary
extra monitoring costs, the potential to flood the docket with less important cases, the presence
of existing alternative sources of payment, the economic burden placed on a plaintiff, and the
mitigated costs of preventive care—the Buckley Court held that the plaintiff was not entitled to
an award of lump-sum damages for medical monitoring under FELA. 521 U.S. at 440-44. The
Court specifically noted, however, that its holding was limited to damages of the type sanctioned
by the Second Circuit. Id. at 444 (“We need not, and do not, express any view here about the
extent to which the FELA might, or might not, accommodate medical cost recovery rules more
finely tailored than the rule we have considered.”).
Thus, Pennsylvania law permits recovery for medical monitoring absent physical injury,
and the United States Supreme Court, at least when applying FELA in the context of lump-sum
damages, does not. Section 1988 requires courts to apply the state law unless it is inconsistent
with federal statutes and constitutional provisions, or the policies expressed therein. We are
satisfied that the applicable Pennsylvania law is consistent with federal law. When the
Pennsylvania Supreme Court articulated the elements of a common-law medical monitoring
cause of action in Pennsylvania, it did so in the context of establishing a medical monitoring trust
fund. See Redland, 696 A.2d at 147. The United States Supreme Court has not offered an
opinion on the viability of medical monitoring trust funds as a form of damages. Rather, in
Buckley, the Court specifically expressed its reluctance to adopt a tort rule permitting the
recovery of lump-sum damages absent physical injury. 521 U.S. at 440. Therefore,
Pennsylvania law and federal law do not conflict here because the medical monitoring tort under
Pennsylvania law, which permits the creation of a supervised fund, can be reconciled with
Buckley, which prohibits a plaintiff without physical injury from recovering lump sum damages
for medical monitoring.
Since Pennsylvania law and federal law can be reconciled, we will apply Pennsylvania
law to fill the gaps left by § 1983, in accordance with § 1988. To the extent that Plaintiffs seek
to establish a fund for financial expenses for increased medical monitoring because of their
exposure to asbestos, they have suffered an actionable harm compensable under § 1983.
Although Plaintiffs do not use the magic word “fund,” they do request “annual medical
monitoring.” Insofar as Plaintiffs demand lump-sum damages, this form of relief has not been
recognized by the Pennsylvania Supreme Court and has been expressly rejected by the United
States Supreme Court. Plaintiffs, therefore, may not recover lump-sum damages.
Count II - State-Created Danger Claim (Count II)
For ease of analysis, we address the state-created danger claim first. Plaintiffs allege that
Defendants’ affirmative conduct violated their rights under the First, Fifth, and Fourteenth
Amendments. At the outset, we must dismiss Plaintiffs’ § 1983 state-created danger claim to the
extent that it relies on the First and Fifth Amendments. Plaintiffs assert no basis of recovery
under the First Amendment. Moreover, the Fifth Amendment restricts federal government
action, see Nguyen v. U.S. Catholic Conference, 719 F.2d 52, 54 (3d Cir. 1983), and this case
only involves state actors. Plaintiffs do not respond to these arguments made by Defendants.
(See Pls.’ Resp.) We will confine ourselves to the Fourteenth Amendment.
State-Created Danger Claim
The Due Process Clause of the Fourteenth Amendment provides that “[n]o State . . . shall
deprive any person of life, liberty, or property, without due process of law.” U.S. Const. amend.
XIV § 1. Generally, the Due Process Clause is not violated where the state fails to protect its
citizens from harm. DeShaney v. Winnebago Cnty. Dep’t of Social Servs., 489 U.S. 189, 195,
202 (1989) (recognizing that the Due Process Clause “forbids the State itself [from] depriv[ing]
individuals of life, liberty or property without ‘due process of laws’ but its language cannot fairly
be extended to impose an affirmative obligation on the State to ensure that those interests do not
come to harm through other means”). However, under the state-created danger theory, the state
may be subject to liability when it “‘acts in a way that makes a person substantially more
vulnerable to injury from another source than he or she would have been in the absence of state
intervention.’” Perez ex rel. Estate of Perez v. City of Phila., 701 F. Supp. 2d 658, 664 (E.D. Pa.
2010) (quoting Schieber v. City of Phila., 320 F.3d 409, 416 (3d Cir. 2003)).
The four elements of a state-created danger claim are: 1) the harm ultimately caused was
foreseeable and fairly direct; 2) a state actor acted with a degree of culpability that shocks the
conscience; 3) a relationship between the state and the plaintiff existed such that the plaintiff was
a foreseeable victim of the defendant’s acts, or a member of a discrete class of persons subjected
to the potential harm brought about by the state’s actions, as opposed to a member of the public
in general; 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 Cnty., 443 F.3d 276, 281 (3d Cir. 2006) (citations omitted).
Defendants argue that Plaintiffs’ claim fails to satisfy the first, second, and fourth elements of the
As to the first element, Defendants reiterate that Plaintiffs suffered no foreseeable harm.
Defendants correctly argue that emotional distress and the fear of disease, absent physical injury,
do not qualify as legal harms. However, for the reasons stated above, we reject Defendants’
interpretation of Plaintiffs’ injury. Accepting the facts in Plaintiffs’ Complaints as true, it is
evident that the PHA maintenance crew, acting in accordance with PHA policies, caused
asbestos to become airborne in Wright’s basement when repairing leaking pipes, and that the
asbestos seeped into the apartments of Goins and Banks. Plaintiffs claim two direct harms as a
result of their asbestos exposure: medical monitoring and property damage. These harms were
also foreseeable. “[A] harm is foreseeable when a state actor has actual awareness, based on
concrete information, of a risk of harm to an individual or class of individuals such that the actor
is on notice that his or her act or failure to act significantly enhances that risk of harm.” Gremo
v. Karlin, 363 F. Supp. 2d 771, 784 (E.D. Pa. 2005). Plaintiffs allege that the PHA maintenance
crew was aware that airborne asbestos poses health risks to those who are exposed to it. The
PHA maintenance crew was therefore on notice that causing asbestos to become airborne in
Wright’s apartment could harm those who were exposed to the asbestos. We are satisfied that
Plaintiffs sufficiently allege that Wright’s property loss and Plaintiffs’ costs of medical
monitoring are direct and foreseeable consequences of Defendants’ conduct.
Defendants also argue that their conduct does not shock the conscience. According to
Defendants, Plaintiffs’ allegations instead closely resemble an ordinary negligence claim. To
determine whether a defendant’s conduct reached the level of shocking the conscience, courts
evaluate the conditions under which a defendant acted. Kaucher v. Cnty. of Bucks, 455 F.3d 418,
426 (3d Cir. 2006) (citing cases). Where a defendant is “confronted with a hyperpressurized
environment such as a high-speed chase . . . it is usually necessary to show that the officer
deliberately harmed the victim.” Id. (citations omitted). However, where a defendant proceeds
in a deliberate fashion, as is the case here, “deliberate indifference may be sufficient to shock the
conscience.” Estate of Smith v. Marasco, 430 F.3d 140, 153 (3d Cir. 2005) (internal quotation
marks and citations omitted).
Plaintiffs allege that the PHA maintenance crew acted with deliberate indifference. The
PHA maintenance crew knew full well that they had caused asbestos to become airborne in
Wright’s basement through their handling and disposal of the pipe insulation. They knew that
asbestos was a hazardous substance. Nevertheless, they did not inform Wright of the asbestos, as
was allegedly PHA’s policy. Instead, they placed the asbestos back into the basement wall and
advised Wright that she had nothing to worry about, even when she asked about “the little white
stuff floating in the air.” Likewise, the PHA maintenance crew did not inform Goins or Banks of
the presence of asbestos in Wright’s basement, even though their basements were also exposed
to the asbestos-laden air in Wright’s basement while the repairs were being done. As a result,
Plaintiffs continued to live in this asbestos-infested environment for months. Asbestos has been
known to be a highly toxic, dangerous, and disease-producing substance for many decades.
Under these circumstances, it cannot be reasonably argued that the PHA maintenance crew did
not act with deliberate indifference that shocks the conscience.
Finally, Defendants contend that Plaintiffs fail to sufficiently allege the fourth element of
the test—whether the state actor affirmatively created the danger. This element may be broken
down into three necessary conditions: 1) a state actor exercised his or her authority; 2) the state
actor took an affirmative action; and 3) this act created a danger to the citizen or rendered the
citizen more vulnerable than if the state had not acted at all. Ye v. United States, 484 F.3d 634,
639 (3d Cir. 2007).
Defendants do not contend that Plaintiffs fail to satisfy this element as to PHA and
Emmitt. They argue that Plaintiffs do not sufficiently allege that Defendants Greene, Kelly,
Carter, Quimby, Caldwell, and Tillman took affirmative acts that placed Plaintiffs in danger. 6
According to the Complaint, Greene, Kelly, Carter, Quimby, Caldwell, and Tillman were all in
managerial or supervisory roles, and were not directly involved in the incident giving rise to this
action. 7 Plaintiffs allege that these Defendants “promulgated policies, plans, procedures, rules
Although Goins and Banks do not explicitly argue that Kelly did not take an affirmative
act, they allege Kelly is liable under the theory of successor liability because he was Greenee’s
successor. (Goins Motion to Dismiss 4 n.3.) Therefore, where Plaintiffs make an argument as to
Greenee, we will also apply it to Kelly.
Greenee was the Executive Director of the PHA, Kelly was PHA’s successor Executive
Director, Carter was PHA’s Assistant Director of Operations, Quimby was PHA’s Executive
General Manager of Operations, Caldwell was PHA’s Executive General Manager of Property
and regulations concerning PHA’s activities with respect to the inspection, detection, removal
and disposal of asbestos materials.” (Id. at ¶ 15.) Plaintiff also alleges that Tillman allegedly
gave a statement to the Daily News denying the presence of asbestos at Wright’s apartment,
characterizing Smith as simply a “disgruntled employee.” (Id. at ¶ 52.) Emmitt directed a PHA
maintenance worker—Rudy Barbosa—and a PHA construction worker—Robert Smith—to
repair the leaky pipe in Wright’s basement when the PHA workers encountered asbestos. Smith
and Barbosa confronted Emmitt about the asbestos, noting the danger it presented. Despite these
concerns, Emmitt advised the workers to scoop the asbestos back into hole in the wall, and cover
the hole with drywall. (Id. ¶¶ 26-29.)
Because respondeat superior does not apply to § 1983 claims, Plaintiff must allege facts
sufficient to show that each of the individual PHA Defendants had personal involvement in the
alleged constitutional harm. See Iqbal, 556 U.S. at 676 (noting that, because vicarious liability is
inapplicable to § 1983 suits, “a plaintiff must plead that each Government-official defendant,
through the official’s own individual actions, has violated the Constitution”); Baraka v.
McGreevey, 481 F.3d 187, 210 (3d Cir. 2007) (“A defendant in a civil rights action must have
personal involvement in the alleged wrongs to be liable, and cannot be held responsible for a
constitutional violation which he or she neither participated in nor approved.”) (internal
quotation marks and citations omitted). Personal involvement can be established with facts
showing that the defendant personally directed or actually participated in the misconduct, or with
facts showing that the defendant had knowledge of and acquiesced in the misconduct. Brito v.
United States Dep’t of Justice, 392 F. App’x 11, 14 (3d Cir. 2010) (citing Rode v. Dellarciprete,
845 F.2d 1195, 1207 (3d Cir. 1988)).
Management Operations, and Tillman was PHA’s General Manager of Communications.
(Compl. ¶¶ 8-13.)
Plaintiffs’ allegations against Greene, Kelly, Carter, Quimby, Caldwell, and Tillman
center on these Defendants’ roles as PHA managers and supervisors. In the Third Circuit, there
are two theories of supervisory liability:
one under which supervisors can be liable if they established and maintained a
policy, practice or custom which directly caused the constitutional harm, and
another under which they can be liable if they participated in violating plaintiff’s
rights, directed others to violate them, or, as the persons in charge, had knowledge
of and acquiesced in their subordinates’ violations.
Santiago v. Warminster Twp., 629 F.3d 121, 129 n.5 (3d Cir. 2010) (internal quotation marks
omitted). Plaintiffs’ claims against Greene, Kelly, Carter, Quimby, Caldwell, and Tillman fall
under the first theory of supervisory liability—that these Defendants established and maintained
an unconstitutional policy, practice or custom concerning the treatment of asbestos materials.
Plaintiffs allege that these policies, which Emmitt and the PHA maintenance crew knowingly
followed, created a danger to Plaintiffs by exposing them to asbestos in their homes for months.
Defendants argue that Plaintiffs only make generalized assertions as to Defendants’ role in the
adoption of such asbestos policies. Notwithstanding the general nature of these allegations, we
are satisfied at this juncture that the allegations are sufficient to withstand the Motions as to
Greene, Kelly, Carter, Quimby, Caldwell, and Tillman. Prior to discovery, Plaintiffs are not
required to spell out with great specificity the role of each Defendant.
As to Emmitt, the Complaint alleges sufficient facts revealing his personal involvement
in the alleged constitutional harm. Emmitt was the supervisor at the scene when the incident
took place. When the PHA maintenance workers advised Emmitt about the presence of asbestos,
he directed that the workers place the asbestos back into the wall of Wright’s basement and cover
it with drywall.
Each of the individual Defendants is named in his or her individual and official
capacities. Where a suit is brought against a public official in his or her official capacity, the suit
is treated as if it were brought against the employing governmental entity. See McGreevy v.
Stroup, 413 F.3d 359, 369 (3d Cir. 2005) (quotations omitted). Because Plaintiffs bring suit
directly against PHA–the employing government entity here–the claims against the individual
Defendants in their “official capacities” are duplicative.
As to the claims brought under § 1983 against Defendants Greene, Kelly, Carter,
Quimby, Caldwell, Emmitt, and Tillman in their individual capacities, Defendants raise the
affirmative defense of qualified immunity. The doctrine of qualified immunity shields state
officials from constitutional liability insofar as “their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person would have known.” Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982). A court evaluating a claim of qualified immunity “must
first determine whether the plaintiff has alleged the deprivation of an actual constitutional right at
all, and if so, proceed to determine whether that right was clearly established at the time of the
alleged violation.” Conn v. Gabbert, 526 U.S. 286, 290 (1999).
We have already determined that Plaintiffs were deprived of a constitutional right of due
process. Within the contours of the Due Process Clause, this right can be broadly described as
the right to be free from bodily integrity from state-created danger of asbestos exposure. See
Estate of Lagano v. Bergen Cnty. Prosecutor’s Office, 769 F.3d 850, 858 (3d Cir. 2014)
(recognizing that “[i]ndividuals have a constitutional liberty interest in personal bodily integrity
that is protected by the Due Process Clause of the Fourteenth Amendment”); L.R. v. Sch. Dist. of
Phila., --- F. Supp. 3d ---, 2014 WL 6490756, at *11 (E.D. Pa. 2014) (holding that the plaintiff
had a constitutional right under the Fourteenth Amendment to bodily integrity from the
defendant under the state-created danger theory).
Having concluded that Plaintiffs alleged the deprivation of an actual constitutional right
under the state-created danger doctrine, we must proceed to the second step of qualified
immunity—whether this constitutional right was clearly established at the time the violation
occurred. 8 The principle underlying the second step of the analysis is notice. See Hope v.
Pelzer, 536 U.S. 730, 739 (2002). The constitutional right must be “sufficiently clear and welldefined so that ‘a reasonable official would understand that what he is doing violates that right.’”
Gremo v. Karlin, 363 F. Supp. 2d 771, 791 (E.D. Pa. 2005) (quoting Carswell v. Borough of
Homestead, 381 F.3d 235, 242 (3d Cir. 2004)).
The Third Circuit has recently stated that a due process interest may be “clearly
established” even in the absence of precedential case law on point. Lagano, 769 F.3d at 858
(“[The plaintiff] can overcome [the defendant’s] qualified immunity defense without proving
that we have previously issued a binding decision recognizing a state-created danger in the
context of the disclosure of a confidential informant’s status, and the District court erred in
requiring it to do so.”).
Plaintiffs point to the Toxic Substances Control Act (“TSCA”), 15 U.S.C. §§ 2601 et
seq., ostensibly as a source of clearly established federal law that bars qualified immunity.
While the violation of a federal statute may form the basis of a § 1983 claim, Wright v. City of
Roanoke Redevelopment & Housing Auth., 479 U.S. 418, 423 (1987), Plaintiffs do not argue that
the TSCA is enforceable under § 1983. Indeed, the TSCA does not provide individuals with a
private right of action for damages. Where Congress forecloses the filing of a private cause of
action, a plaintiff may not bring a § 1983 claim to enforce a federal statute. See Wright, 479 U.S.
at 423; Hurt, 806 F. Supp. at 524. Since Defendants did not deprive Plaintiffs of any actual
constitutional rights under the TSCA, we need not consider whether the purported right was
In this case, there is no binding Third Circuit precedent recognizing a state-created
danger claim on the facts presented here. 9 However, this does not end the analysis. “Instead of
conducting a ‘fact-by-fact’ match up,” L.R., 2014 WL 6490756, at *11, we must focus our
inquiry on the second prong on “whether it would be clear to a reasonable [government official]
that the alleged [release] was unlawful under the circumstances.” Lagano, 769 F.3d at 859.
In L.R. v. School District of Philadelphia, Judge DuBois recently concluded that a
plaintiff’s due process right to bodily integrity was clearly established in the absence of any
factually-similar binding Third Circuit decision. In that case, plaintiff, a parent of a
kindergartener in the Philadelphia School District, brought a claim against the school district and
a teacher for releasing her daughter to a stranger, a decision that ultimately led to the child’s
exposure to sexual assault. Recognizing the Third Circuit’s recent departure from requiring
precedential authority on point to inform the “clearly established” prong of the qualified
immunity analysis, the district court relied on the broader inquiry established in Lagano that a
right is clearly established if it would have been clear to a reasonable government official that the
conduct was unlawful. 2014 WL 6490756, at *11-12. The court recognized that although the
Fourteenth Amendment does not require the state to affirmatively act to protect its citizens, it
does create an obligation to avoid placing its citizens in danger.
There is, however, a case in the Sixth Circuit factually similar to this case that provides
some guidance to the analysis. See Upsher v. Grosse Pointe Pub. Sch. Sys., 285 F.3d 448 (6th
Cir. 2002). Although Upsher was not a state-created danger case and did not specifically address
qualified immunity, it is useful in determining if Defendants had notice that the right at issue
here was clearly established. In Upsher, school custodians brought § 1983 claims against the
school after they were exposed to friable asbestos because the school directed them to remove
asbestos tiles from a school building. Id. at 450. The plaintiffs claimed they suffered from
respiratory irritations and other physical problems from the asbestos exposure. Id. at 450-51.
The Sixth Circuit found that while the plaintiffs’ complaint adequately alleged § 1983 claims, the
plaintiffs’ claims failed at the summary judgment stage because the plaintiffs did not show that
the defendants made a deliberate decision to inflict pain or bodily injury on any of the plaintiffs.
Id. at 453.
Here, we are satisfied that it would have been clear to a reasonable PHA employee that
causing the release of airborne asbestos in Plaintiffs’ home and then failing to notify Plaintiffs or
acting in any way to mitigate the harm caused by the release, was unlawful under the
circumstances. The Third Circuit recognized the state-created danger theory for the first time in
Kneipp v. Tedder, 95 F.3d 1199 (3d Cir. 1996), more than 10 years before the incident giving
rise to this litigation. Defendants’ conduct is precisely what caused the danger in this instance.
Defendants cannot possibly claim that they were unaware about the risks associated with
asbestos. In 2003, the Third Circuit stated that “[t]he dangers of asbestos are well established
and require no reaffirmation or additional proof.” Brennan v. Norton, 350 F.3d 399, 415 (3d Cir.
2003). Congress recognized asbestos to be a dangerous toxic chemical in the 1970s, decades
before the incident in this action occurred. 10 The health effects associated with asbestos
exposure have been within the public’s knowledge for years. We are satisfied that Plaintiffs’
constitutional right to bodily integrity as it related to the state-created danger of prolonged
asbestos exposure was clearly established at the time the constitutional deprivation occurred.
Qualified immunity does not apply in this case.
As a public housing authority, PHA qualifies as a government entity, specifically a
municipal corporation, for the purposes of § 1983. Watson v. Phila. Hous. Auth., 629 F. Supp.
2d 481, 485 (E.D. Pa. 2009). As a municipal corporation, PHA cannot be subject to respondeat
superior liability for a § 1983 violation. Bielevicz v. Dubinon, 915 F.2d 845, 850 (3d Cir. 1990).
Municipal liability “must be founded upon evidence that the government unit itself supported a
In March of 1971, the Environmental Protection Agency identified asbestos as a
hazardous air pollutant under the Clean Air Act. 36 Fed. Reg. 5931 (March 31, 1971). In 1973,
the EPA promulgated regulations, the National Emission Standards for Hazardous Air Pollutants
(“NESHAP”), which included regulations on the handling of asbestos. 40 C.F.R. 61, Subpart M.
violation of constitutional rights.” Id. Therefore, proving a constitutional violation of state
actors under the state-created danger doctrine by itself is not enough to implicate municipal
liability. Nawuoh v. Venice Ashby Cmty. Ctr., 802 F. Supp. 2d 633, 639 (E.D. Pa. 2011); M.B. ex
rel. T.B. v. City of Phila., No. 00-5223, 2003 WL 733879, at *6 (E.D. Pa. Mar. 3, 2003) (citing
Kneipp, 95 F.3d 1199); Sciotto v. Marple Newton Sch. Dist., 81 F. Supp. 2d 559, 573 (E.D. Pa.
The Third Circuit has not specifically addressed what additional analysis must be
conducted for municipal liability to attach under the state-create danger doctrine. M.B. ex rel
T.B., 2003 WL 733879, at *6; Sciotto, 81 F. Supp. 2d at 573. However, Courts in this district
have addressed the issue and determined that the Third Circuit would require a Plaintiff to
conduct an analysis under Monell v. Department of Social Services of the City of New York, 436
U.S. 658 (1978), to prove that some municipal policy or custom was the proximate cause of the
constitutional violation under the state-created danger doctrine. M.B. ex rel T.B., 2003 WL
733879, at *6; Taxioly v. City of Phila., No. 97-1219, 1998 WL 633747, at *13 (E.D. Pa. Sept.
10, 1998) (“To impose § 1983 liability on the City or DHS, Plaintiffs must establish that a
municipal policy or custom was the proximate cause of the violation.”).
Monell provides the framework for determining whether a government entity such as
PHA may be held liable under § 1983. Bielevicz, 915 F.2d at 850. Under Monell, “the
municipality can only be liable when the alleged constitutional transgression implements or
executes a policy, regulation or decision officially adopted by the governing body or informally
adopted by custom.” Beck v. City of Pittsburgh, 89 F.3d 966, 971 (3d Cir. 1996) (citing Monell,
436 U.S. 658). Plaintiffs must establish that the policy or custom was the proximate cause of the
injuries sustained by demonstrating a “plausible nexus or “affirmative link” between the
municipality’s custom and the specific deprivation of constitutional rights at issue. Kneipp, 95
F.3d 1199, 1213.
Here, Plaintiffs have sufficiently alleged that PHA had a policy and custom of failing to
disclose the presence of asbestos in PHA properties and of improperly handling and disposing of
asbestos found in PHA properties. Plaintiffs allege that when the PHA maintenance crew acted
so as to create a danger to Plaintiffs in violation of their constitutional rights, the crew was acting
pursuant to PHA’s policies or customs. These allegations provide a plausible nexus between
PHA’s policies or customs and the underlying constitutional violation by the individual state
actors. Plaintiffs have therefore satisfied the requirements to hold PHA liable under the statecreated danger doctrine.
Accordingly, Plaintiffs have sufficiently alleged a state-created danger claim under the
Fourteenth Amendment against Defendants PHA, Emmitt, Greene, Kelly, Carter, Quimby,
Caldwell, and Tillman.
The Monell Claim (Count I)
Plaintiffs allege that all Defendants violated their constitutional rights under the theory
announced in Monell. 11 The Monell claim must be dismissed insofar as it purports to hold
Defendants Greene, Kelly, Carter, Quimby, Caldwell, Emmitt, and Tillman individually liable.
Monell applies to the liability of government entities, not individuals.
Defendants argue that Plaintiffs fail to allege a constitutional violation. Defendants,
quoting the Supreme Court, contend that there is no constitutional right to housing: “[w]e do not
denigrate the importance of decent, safe and sanitary housing. But the Constitution does not
For the reasons discussed above, the Monell claim must be dismissed to the extent that
it is based on the First and Fifth Amendments. Plaintiffs implicitly agree. They pursue their
Monell argument only as a substantive due process claim under the Fourteenth Amendment.
(Pls.’ Resp. 22-24.)
provide judicial remedies for every social and economic ill. We are unable to perceive in that
document any constitutional guarantee of access to dwellings of a particular quality.” Lindsey v.
Normet, 405 U.S. 56, 74 (1972). Defendants rely on Hurt v. Philadelphia Housing Authority,
where the plaintiffs, residents of housing units managed by PHA, brought suit alleging that they
were exposed to lead paint. 806 F. Supp. 515, 519 (E.D. Pa. 1992). The court rejected the
argument that PHA had a constitutional duty to provide for plaintiffs’ safety and welfare. Id. at
523. The court found that PHA did not violate any affirmative duty of care mandated by the
Fourteenth Amendment’s due process clause. Id. (citing DeShaney, 489 U.S. at 199-200).
Plaintiffs admit that there is no constitutional right to housing. (Pls.’ Resp. 22.) Instead,
Plaintiffs style their argument as a substantive due process violation under the state-created
danger doctrine. (Id.) We have discussed PHA’s liability under the state-created danger doctrine
using the Monell analysis. We find that Count I advances the same theory of municipal liability.
Cole ex rel. Cole v. Big Beaver Falls Area Sch. Dist., No. 08-776, 2009 WL 890578, at *7 (W.D.
Pa. Mar. 26, 2009) (“Municipal liability is not an alternate theory of liability; it is an additional
hurdle that must be overcome by a plaintiff in establishing § 1983 liability of a municipality.”);
M.B. ex rel T.B., 2003 WL 733879, at *6 (finding state-created danger theory analysis and
Monell analysis are not alternative theories of municipal liability). But see Sciotto, 81 F. Supp.
2d at 573 (finding “policy, practice, or custom” theory is an alternative theory to the state-created
danger theory). Plaintiffs have cited no other constitutional violation on which municipal
liability could be based. Therefore, we are compelled to conclude that the Monell claim in Count
I is duplicative of the state-created danger claim in Count II as to PHA. Count I will be
Count III - Annual Medical Monitoring Claim
Plaintiffs bring a medical monitoring claim against all Defendants under § 1983. We are
unaware of a federal cause of action for medical monitoring. We have determined that Plaintiffs
are permitted to claim damages under § 1983 in the form of medical monitoring. Accordingly, a
separate cause of action seeking the same damages is duplicative and will be dismissed.
In Counts IV-VII, Plaintiffs assert violations of § 1983, the Pennsylvania Constitution,
and Pennsylvania law. Each Count is premised on the same sources of law but is asserted
against different Defendants. Count IV is against PHA, Count V is against Greene, Carter,
Quimby, and Caldwell, Count VI is against Emmitt, and Count VII is against Tillman.12
These claims must be dismissed insofar as they rely on the First and Fifth Amendments.
They must also be dismissed to the extent they allege violations of the Pennsylvania Constitution
and Pennsylvania statutes and regulations under § 1983. A violation of state law cannot form the
basis of a § 1983 claim. Elkin v. Fauver, 969 F.2d 48, 52 (3d Cir. 1992). In addition, Plaintiffs
acknowledge in their Response that the state and municipal sources of law cited in the Complaint
do not create private rights of action for monetary damages. 13 Plaintiffs also purport to bring a
§ 1983 claim to enforce provisions of the Clean Air Act, 42 U.S.C. §§ 7401 et seq. This claim
has been foreclosed by the Supreme Court, which has held that individuals may not enforce the
various federal environmental statutes by resort to § 1983. Middlesex Cnty. Sewerage Auth. v.
Nat’l Sea Clammers Ass’n, 453 U.S. 1, 19-21 (1981); see also Powell v. Lennon, 914 F.2d 1459,
Count V is also asserted against Kelly in the Goins Complaint. (Goins Compl.)
Plaintiffs identify the following sources of state and municipal law: 1) Pennsylvania
Constitution; 2) 25 Pa. Code. §§ 271 et seq.; 3) Pennsylvania Asbestos Occupations Abatement
Accreditation and Certification Act, 63 Pa. Stat. §§ 2101 et seq.; and 4) Philadelphia Code § 6610. In their Response, Plaintiffs note that “the various laws and regulations cited in the
Amended Complaint admittedly provide no private right of action.” (Pls.’ Resp. 21.)
1462 n.7 (11th Cir. 1990) (observing that there is no private right of action under the Clean Air
Act after Middlesex County). Plaintiffs have abandoned all of these arguments in their Response.
(Pls.’ Resp. 21.)
The remaining legal basis for recovery under Counts IV-VII is the Fourteenth
Amendment’s substantive due process clause. After discarding Plaintiffs’ improper legal
arguments, we are left with substantive due process claims that are largely identical to Plaintiffs’
state-created danger claim in Count II. As a result, Counts IV-VII are duplicative and will be
Pendent State-Law Claims
Plaintiffs assert three pendent state-law claims against all Defendants: 1) gross and
reckless negligence; 2) battery; and 3) future medical monitoring. PHA and the individual
Defendants argue that they are immune from liability pursuant to the Sovereign Immunity Act,
42 Pa. Cons. Stat. § 8522. PHA is a Commonwealth agency that qualifies for sovereign
immunity. Rhoads v. Phila. Hous. Auth., 978 A.2d 431, 432 (Pa. Commw. Ct. 2009). Individual
defendants, employees of a Commonwealth agency, enjoy the same immunity as PHA. Walker
v. Phila. Hous. Auth., No. 08-5592, 2009 WL 3055389, at *3 (E.D. Pa. Sept. 24, 2009) (citing 42
Pa. Cons. Stat. § 8501).
Plaintiffs neglect to address any of Defendants’ argument that sovereign immunity
precludes liability and demands dismissal of the state-law claims. We construe Plaintiffs’ silence
as their concession that the state law claims are barred by sovereign immunity. 14
Even if Plaintiffs had made an attempt to save their state-law claims, it appears as
though those claims would nevertheless be barred by sovereign immunity. Section 8522(b)
specifically enumerates nine exceptions to immunity: vehicle liability, medical-professional
liability, care or control of personal property, Commonwealth real estate, highway conditions,
care and control of animals, liquor store sales, National Guard activities, and vaccines.
Accordingly, Defendants’ Motions to Dismiss Count VIII will be granted.
For all of these reasons, Defendants’ Motions to Dismiss are granted in part and denied in
part. The Monell claim against the PHA in Count II and the state-created danger claim against
the individual Defendants in Count II survive these Motions. The remaining Counts will be
An appropriate Order follows.
BY THE COURT:
R. BARCLAY SURRICK, J.
The only exception that appears, at first glance, to be relevant here is the real estate
exception. Under that exception, immunity does not apply when damages arise out of “[a]
dangerous condition of Commonwealth agency real estate and sidewalks, including
Commonwealth-owned real property.” 42 Pa. Cons. Stat. § 8522(b)(4). However, after
reviewing the relevant case law, we are satisfied that Plaintiffs’ state-law claims do not fall
within the real estate exception. The focus of the real estate exception inquiry is on whether the
dangerous condition or defect itself causes an injury to occur. Thornton v. Phila. Hous. Auth., 4
A.3d 1143, 1148 (Pa. Commw. Ct. 2010); Snyder v. Harmon, 562 A.2d 307, 312 (Pa. 1989);
Williams v. Phila. Hous. Auth., 873 A.2d 81, 86 (Pa. Commw. Ct. 2005) (noting that in order for
the real estate exception to apply, “it must be the dangerous condition or defect in the real estate
that causes the injury. If a defect merely facilitates an injury to be caused by the acts of other
persons, the defect or dangerous condition is not actionable”).
Here, Plaintiffs never allege that their property was defective; rather, they allege that
Defendants’ conduct and policies caused them to be unlawfully exposed to asbestos. This is not
sufficient for the exception to apply. See Weckel v. Carbondale Hous. Auth., 20 A.3d 1245,
1250 (Pa. Commw. Ct. 2011) (“If a defect or dangerous condition merely facilitates an injury
which is caused by the acts of a person, the defect or dangerous condition is not actionable.”).
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