Mario Henry v. City of Erie

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 11-3738

___________

MARIO HENRY, as administrator of the estate of

Gwyneth E. Henry and as guardian of S.H., a minor;

ALYSHIA M. RICHARDSON, as administratrix of the estate

of Tyreesha L. Richardson and as guardian of D.R., a minor

v.

CITY OF ERIE; THE HOUSING AUTHORITY OF THE

CITY OF ERIE; JOHN E. HORAN; JOSEPH ANGELOTTI;

BRETT C. HAMMEL; PATRICIA A. HAMMEL

John E. Horan and Joseph Angelotti,

Appellants

_______________________

On Appeal from the United States District Court

for the Western District of Pennsylvania

D.C. Civil Action No. 1-10-cv-00260

(Honorable Maurice B. Cohill, Jr.)

______________

Argued: September 10, 2012

Before: SCIRICA, ROTH, and BARRY, Circuit Judges.

(Filed: August 23, 2013)

Joseph M. Kanfer, Esq. (ARGUED)

John F. Mizner, Esq.

Mizner Law Firm

201 German Street

Erie, PA 16507

Counsel for Appellees

Richard A. Lanzillo, I, Esq. (ARGUED)

Knox, McLaughlin, Gornall & Sennett

120 West Tenth Street

Erie, PA 16501

Counsel for Appellants

_________________

OPINION OF THE COURT

_________________

SCIRICA, Circuit Judge.

In this appeal from a motion to dismiss plaintiffs’ §

1983 claim, we must determine whether state officials’

approval and subsidization of an apartment for the Section 8

housing program, even though the apartment allegedly failed

to comply with Section 8’s Housing Quality Standards,

constitutes a state-created danger toward the apartment’s

tenant and her guest in violation of their substantive due

process rights under the United States Constitution.

2

Accepting plaintiffs’ plausible factual allegations as

true for the purpose of this appeal, we do not find that

plaintiffs have adequately pled a state-created danger claim.

Accordingly, we will reverse the judgment of the District

Court. 1

I.

On July 25, 2010, a fire at an apartment located at 933

West 18th Street in Erie, Pennsylvania took the lives of tenant

Tyreesha L. Richardson and her guest Gwyneth E. Henry.

Their bodies were found on the third floor of the apartment,

and an autopsy confirmed both women died from smoke

inhalation. The third-floor bedroom purportedly lacked a

smoke detector and an alternate means of egress—even

though the apartment was required to have both safety

features under the Section 8 housing choice voucher program

in which Richardson participated.

Plaintiff Alyshia M. Richardson is the administratrix

of the estate of Tyreesha L. Richardson, and Plaintiff Mario

Henry is the administrator of the estate of Gwyneth E. Henry.

A.

Section 8 of the United States Housing Act of 1937, 42

1

All references to the District Court refer to its memorandum

order, Henry v. City of Erie, No. 10-260, 2011 U.S. Dist.

LEXIS 110562 (W.D. Pa. Sept. 28, 2011), and to the Report

and Recommendation of Magistrate Judge Baxter, dated

August 19, 2011, which was adopted as the opinion of the

District Court. Id. at *5.

3

U.S.C. § 1437f, established a housing program to help

eligible low-income families afford safe and sanitary housing.

The United States Department of Housing and Urban

Development (“HUD”) oversees the program, which is

administered by local agencies in accordance with federal

guidelines. In Erie, the local administering agency is the

Housing Authority of the City of Erie (“HACE”). Defendant

John E. Horan is the Executive Director of HACE, where he

is responsible for ensuring HACE complies with applicable

laws and regulations as well as overseeing its employees.

Defendant Joseph Angelotti is employed by HACE as a

Section 8 Housing Inspector.

HACE provides housing vouchers to families it

determines qualify for tenant-based assistance. A qualifying

family may take the voucher to a willing landlord of its

choosing, subject to HACE’s approval of the tenancy. HACE

approval requires an inspection and a determination that the

dwelling unit meets the Housing Quality Standards (“HQS”)

promulgated by HUD. Among other things, the Housing

Quality Standards require that the dwelling unit have “an

alternate means of exit in case of fire (such as fire stairs or

egress through windows),” 24 C.F.R. § 982.401(k), and “at

least one battery-operated or hard-wired smoke detector, in

proper operating condition, on each level,” Id. § 982.401(n).

If HACE approves a tenancy after inspection, HACE

and the property owner will enter into a Housing Assistance

Payment (“HAP”) contract in which HACE agrees to pay a

certain portion of the tenant’s monthly rent. The tenant enters

into a lease with the property owner and is responsible for

paying the remainder of the agreed-upon rent. The property

owner must keep the unit in compliance with the Housing

4

Quality Standards for the duration of the lease. HACE

employs housing inspectors to inspect units prior to leasing,

annually thereafter, and “at other times as needed” to ensure

compliance. Id. § 982.405(a). HACE’s Administrative Plan

provides:

1. The owner must maintain the assisted unit in

accordance with HQS.

2. The HACE will take prompt action to enforce

the owner’s obligations for owner breach of the

HQS.

3. The HACE will notify the owner and tenant

of HQS deficiencies for which the owner is

responsible. The notice will provide for the

following:

For HQS failures, the owner will be

given up to thirty (30) days to correct the

item(s). The HACE Executive Director

or designee may, at his/her discretion,

approve a reasonable extension of time

depending upon the extent or scope of

work required.

If the defect is life threatening to the

family’s health or safety, the owner will

be given 24 hours to correct the

violation.

If the owner fails to correct failed items,

the payment will be suspended or the

5

HAP Contract will be terminated.

4. The HACE will not make any assistance

payments for a dwelling unit in which HQS

deficiencies have not been corrected after the

notice period has expired.

5. If “life threatening” deficiencies are not

corrected within 24 hours, the owner will be

given notice of intent to terminate the HAP

Contract and that the Housing Assistance

Payment will be suspended through the

Termination Notice period.

Compl. ¶ 63 (citing Housing Authority of the City of Erie,

Section 8 Housing Choice Voucher Administrative Plan, 6-3

to 6-4 (2003)).2

B.

Richardson was a tenant participant in the Section 8

housing program. With her voucher, Richardson rented a unit

on the second and third floors of an apartment duplex owned

by Brett and Patricia Hammel.

According to the complaint, on March 27, 2006,

2

Similarly, 24 C.F.R. § 982.404(a)(2) requires HACE to

“take prompt and vigorous action to enforce the owner

obligations” in response to an owner’s failure to comply with

the Housing Quality Standards, with remedies including

“termination, suspension or reduction of housing assistance

payments and termination of the HAP contract.”

6

Angelotti performed the initial inspection required to approve

the apartment for the program. He failed the apartment at that

time and informed the owners the following repairs were

necessary to make it suitable for the Section 8 program:

In the third floor bedroom:

a. Install a smoke detector.

b. Secure the railing.

c. A fire escape ladder must be in place

for a second means of egress.

Id. ¶ 68.

On April 25, 2006, Angelotti purportedly allowed the

apartment to pass inspection, even though it still lacked a

third-floor fire escape ladder. We will also assume the

apartment lacked a third-floor smoke detector, although the

complaint is inconsistent regarding such allegations. 3

Angelotti then purportedly allowed the apartment to

pass annual inspections in 2007, 2009, and 2010. Plaintiffs

assert Angelotti inspected the apartment on March 24th and

March 31st of 2009. A HACE Inspection Checklist lists

various categories for inspection. On the 2009 Checklist, next

3

At one point in the complaint, plaintiffs state that at the time

of the fire, “upon information and belief, the third floor

bedroom failed to have a smoke detector.” Id. ¶ 17. But at

another point, plaintiffs assert that “[w]hether a smoke

detector was installed or whether the railing was secured in

March or April of 2006 is unknown.” Id. ¶ 69. We assume the

apartment did not have a third-floor smoke detector because it

does not affect our analysis.

7

to the “smoke detectors” category, an “x” has been marked

under the column stating “No,” and the words “Install in

bedroom” have been written in. Id. ¶ 72. In 2010, the

apartment was inspected once. The 2010 Checklist has the

same “No” indication next to the “smoke detectors” category,

along with a handwritten annotation:

Install as need

replace batteries.

Id. ¶ 74.

The results of the 2008 annual inspection are

unknown, but on April 29, 2008, Kimberly A. Preston,

HACE’s Section 8 Program Coordinator, sent a letter to

Richardson stating:

Please be advised that the Housing Authority of

the City of Erie will terminate all housing

assistance payments and the Section 8 contract

on your behalf effective May 31, 2008.

This action will be taken because your housing

unit was not brought up to the required Housing

Quality Standards. Please refer to our inspection

report dated April 29, 2008 (however, if the

work has been completed, please contact the

office and schedule a re-inspection).

Id. ¶ 71. Preston sent similar letters to Richardson after the

2009 and 2010 inspections. The 2009 letter warned that

housing assistance payments would terminate effective May

31, 2009 due to the inspection report dated March 31, 2009,

8

unless the apartment was brought into compliance with the

Housing Quality Standards. The 2010 letter warned that

housing assistance payments would terminate effective May

31, 2010 due to the inspection report dated April 8, 2010,

unless the apartment was brought into compliance with the

Housing Quality Standards. Despite these warning letters and

the owners’ continued failure to comply with the Housing

Quality Standards, HACE did not terminate the housing

assistance payments for Richardson’s apartment. As noted, on

July 25, 2010, the apartment succumbed to fire,4 and

Richardson and Henry died in the third-floor bedroom.

C.

Plaintiffs brought suit on behalf of decedents

Richardson and Henry, asserting the following: (1) an equal

protection claim against the City of Erie; (2) a § 1983 claim

against HACE, Horan, and Angelotti for violating the

Housing Act; (3) a § 1983 claim against HACE, Horan, and

Angelotti under the state-created danger theory; and (4) a

negligence claim against the Hammels, the apartment’s

owners.

The District Court referred the matter to a Magistrate

Judge and adopted in toto the Report and Recommendation of

the Magistrate Judge. The court dismissed plaintiffs’ equal

protection claim and Housing Act claim. But the court found

plaintiffs adequately pled a state-created danger claim by

asserting that but for defendants’ affirmative acts in

approving and subsidizing the apartment, Richardson would

not have been living in that apartment, and she and Henry

4

The complaint does not identify the cause of the fire.

9

would not have been killed in the fire. The court stated

Richardson’s and Henry’s deaths were a foreseeable result of

defendants’ acts, and found Richardson and Henry were part

of a discrete class of persons—occupants of the third-floor

bedroom—subjected to harm. The court also concluded a jury

could find defendants’ behavior was deliberately indifferent

and conscience-shocking.

The court rejected Horan and Angelotti’s qualified

immunity defense, explaining that because the state-created

danger doctrine was well-established since July 1999, and

defendants deliberately disregarded a known violation of

Section 8, they could not have believed their conduct

comported with the law. The court found a reasonable official

would have understood that approving the apartment for the

Section 8 program despite its noncompliance with the

Housing Quality Standards would violate decedents’

substantive due process rights.

Horan and Angelotti appeal the District Court’s order

denying them qualified immunity on plaintiffs’ state-created

danger claim. Meanwhile, plaintiffs’ negligence claim against

the Hammels and state-created danger claim against HACE

remain pending in the District Court.

II.

The District Court had jurisdiction under 28 U.S.C. §

1331. We have jurisdiction under 28 U.S.C. § 1291 because

an order denying a public official’s motion to dismiss that is

based on qualified immunity and turns on a question of law is

immediately appealable as a “final decision” under the Cohen

collateral order doctrine. Ashcroft v. Iqbal, 556 U.S. 662, 672

10

(2009) (citing Cohen v. Beneficial Indus. Loan Corp., 337

U.S. 541 (1949)).

“We exercise de novo review of a district court’s

denial of a motion to dismiss on qualified immunity grounds

as it involves a pure question of law.” James v. City of

Wilkes-Barre, 700 F.3d 675, 679 (3d Cir. 2012). To withstand

a motion to dismiss under Federal Rule of Civil Procedure

12(b)(6), “a complaint must contain sufficient factual matter,

accepted as true, to ‘state a claim to relief that is plausible on

its face.’” Iqbal, 556 U.S. at 678 (quoting Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007)). “While legal

conclusions can provide the framework of a complaint, they

must be supported by factual allegations.” Id. at 679.

III.

Plaintiffs brought suit under 42 U.S.C. § 1983. “Under

Section 1983, a plaintiff must plead a deprivation of a

constitutional right and that the constitutional deprivation was

caused by a person acting under the color of state law.”

Phillips v. Cnty. of Allegheny, 515 F.3d 224, 235 (3d Cir.

2008).

Under the doctrine of qualified immunity,

“government officials performing discretionary functions

generally are shielded from liability for civil damages 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). To determine whether defendants are entitled to

qualified immunity, we must ask “whether ‘the facts alleged

show the officer’s conduct violated a constitutional right,’”

11

and “‘whether the right was clearly established.’” Pearson v.

Callahan, 555 U.S. 223, 232 (2009) (quoting Saucier v. Katz,

533 U.S. 194, 201 (2001)). The Courts of Appeals may

“exercise their sound discretion in deciding which of the two

prongs of the qualified immunity analysis should be

addressed first in light of the circumstances in the particular

case at hand.” Id. at 236. In this case, we find the complaint,

taken in the light most favorable to plaintiffs, fails to “‘show

the [officials’] conduct violated a constitutional right.’”

Walter v. Pike Cnty., 544 F.3d 182, 191 (3d Cir. 2008)

(quoting Saucier, 533 U.S. at 201). Therefore, plaintiffs’

claim should have been dismissed.

IV.

Federal appellate courts that have addressed the issue

have held that the Housing Act does not create a private right

to housing of a particular condition or a private cause of

action to enforce any such right. 5 See Banks v. Dallas Hous.

Auth., 271 F.3d 605, 610-11 (5th Cir. 2001); Perry v. Hous.

5

Several district courts have also held that an individual may

not maintain a private cause of action for allegedly unsafe

housing conditions under Section 8 of the Housing Act. See,

e.g., Reynolds v. PBG Enters., LLC, Civ. A. No. 10-4373,

2011 WL 2678589, at *8-9 (E.D. Pa. July 6, 2011) (no

express federal rights created or private cause of action

implied under § 1437f); Montgomery v. City of New York, No.

09 Civ. 6145(RJH), 2010 WL 3563069, at *3-4 (S.D.N.Y.

Sept. 7, 2010) (same); Kirby v. Richmond Redev. & Hous.

Auth., No. 3:04cv791, 2005 WL 5864797, at *8 (E.D. Va.

Sept. 28, 2005) (same), aff’d, 194 F. App’x 105 (4th Cir.

2006).

12

Auth. of Charleston, 664 F.2d 1210, 1217 (4th Cir. 1981).

The statute itself is silent on the issue of a private cause of

action. See 42 U.S.C. § 1437f. But the implementing

regulations specify that no rights are conferred on tenants to

sue for violations of the Housing Quality Standards. See 24

C.F.R. § 982.406 (stating the Housing Choice Voucher

Program “does not create any right of the family, or any party

other than HUD or the PHA [Public Housing Agency], 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”).

In accordance with this case law, plaintiffs do not

bring suit under § 1983 for violations of Section 8 or its

accompanying regulations. Rather, plaintiffs contend that

defendants, acting under color of state law, deprived

decedents of their “right[s] to life, liberty and bodily integrity

under the Fourteenth Amendment to the Constitution.”

Phillips, 515 F.3d at 235. Although the Supreme Court has

made clear that “a State’s failure to protect an individual

against private violence simply does not constitute a violation

of the Due Process Clause,” DeShaney v. Winnebago Cnty.

Dep’t of Soc. Servs., 489 U.S. 189, 197 (1989), we have

recognized that a state actor may be held liable under the

“state-created danger” doctrine for creating a danger to an

individual in certain circumstances. See Morrow v. Balaski,

No.11-2000, 2013 WL 2466892, at *13 (3d Cir. June 5, 2013)

(en banc).

The state-created danger doctrine derives from the

Supreme Court’s decision in DeShaney. In that case, four-

year-old Joshua DeShaney was repeatedly beaten by his

13

father. 489 U.S. at 192-93. Although the Winnebago County

Department of Social Services ( “DSS”) obtained a court order

to place Joshua in the temporary custody of a local hospital, it

returned him to his father’s custody after deciding there was

insufficient evidence of abuse. Id. at 192. DSS continued to

check on Joshua, but despite signs of abuse, failed to take any

action to protect him. Id. at 192-93. The beatings from his

father eventually caused Joshua to suffer severe brain

damage. Id. at 193.

Joshua and his mother brought suit against DSS and

several of its employees under § 1983, alleging that by failing

to protect Joshua against a risk of which they knew or should

have known, defendants violated Joshua’s rights under the

Fourteenth Amendment. Id. The Court rejected Joshua’s

claim, stating, “[a]s a general matter, . . . we conclude that a

State’s failure to protect an individual against private violence

simply does not constitute a violation of the Due Process

Clause.” Id. at 197. The Court acknowledged that in limited

contexts, such as “incarceration, institutionalization, or other

similar restraint of personal liberty,” a “special relationship”

between the state and the individual imposes on the state an

affirmative duty to protect, but found that such a relationship

did not exist between Joshua and the state because the harm

to Joshua occurred while he was in his father’s custody. Id. at

200-03.

Moreover, in finding the state and its employees could

not be held liable on the facts of the case, the Court explained

the state had not, by its actions, placed Joshua in a more

dangerous position:

While the State may have been aware of the

14

dangers that Joshua faced in the free world, it

played no part in their creation, nor did it do

anything to render him any more vulnerable to

them. That the State once took temporary

custody of Joshua does not alter the analysis,

for when it returned him to his father’s custody,

it placed him in no worse position than that in

which he would have been had it not acted at

all; the State does not become the permanent

guarantor of an individual’s safety by having

once offered him shelter.

Id. at 201. Among several circuits, including our own, this

language generated a “complement to the DeShaney holding

[that] has come to be known . . . as the ‘state-created danger

doctrine.’” Bright v. Westmoreland Cnty., 443 F.3d 276, 281

(3d Cir. 2006). To establish a state-created danger claim,

plaintiffs must plead four elements:

(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

15

(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.

Morrow, 2013 WL 2466892, at *13-14 (quoting Bright, 443

F.3d at 281). In this case, we needn’t look further than the

first element of the state-created danger claim. Because the

harm caused was not a “fairly direct” result of defendants’

actions, plaintiffs have not adequately pled a state-created

danger claim.

The first step of the state-created danger analysis

requires the harm to be a “foreseeable and fairly direct”

consequence of defendants’ actions. “To adequately plead

foreseeability . . . , we require a plaintiff to allege . . . an

awareness of risk that is sufficiently concrete to put the [state]

actors on notice of the harm.” Phillips, 515 F.3d at 238. We

think the harm that occurred here was likely foreseeable. By

establishing basic safety requirements for Section 8 housing,

the Housing Quality Standards are intended to guard against

foreseeable hazards. The risk created by housing a tenant in

an apartment without a third-floor smoke detector or fire

escape is clear—that, in the event of a fire, persons on the

third floor might become trapped and harmed thereby.

Several cases have so held based on claims of negligence. 6

6

See, e.g., Fed. Ins. Co. ex rel. Singer v. ADT Sec. Sys., Inc. ,

222 F.R.D. 578, 581 (N.D. Ill. 2004) (“‘[T]he danger of fire is

foreseeable in virtually any context . . . .’” (quoting Bartelli v.

O’Brien, 718 N.E.2d 344, 349 (Ill. App. Ct. 1999))); Dillard

v. Pittway Corp., 719 So. 2d 188, 192 (Ala. 1998)

16

But foreseeability does not end the analysis. Most cases

involving failure to comply with health and safety standards

will meet the hurdle of foreseeability. More significant and

relevant here is the requirement that defendants’ actions be a

“fairly direct” cause of decedents’ harm.

State actors are not liable every time their actions set

into motion a chain of events that result in harm. The

Supreme Court has explained, for instance, that

[a] legislative decision that has an incremental

impact on the probability that death will result

in any given situation—such as setting the

speed limit at 55-miles-per-hour instead of 45—

cannot be characterized as state action depriving

a person of life just because it may set in motion

a chain of events that ultimately leads to the

random death of an innocent bystander.

Martinez v. State of California, 444 U.S. 277, 281 (1980).

Martinez arose from the murder of a teenage girl by a

parolee. Id. at 279. The girl’s parents brought suit, contending

(“Certainly, it is foreseeable that a person could be hurt if a

smoke detector fails to give notice for all to exit the house . . .

.”); Doyle v. S. Pittsburgh Water Co., 199 A.2d 875, 879 (Pa.

1964) (“Could the needs of domiciliary life require anything

more vitally than proper fire protection?”); Thornton v. Phila.

Hous. Auth., 4 A.3d 1143, 1152 (Pa. Commw. Ct. 2010)

(“The purpose of the smoke/fire detection system was to

provide an early warning of fire and to prevent and reduce

damages and resulting injuries.”).

17

state officials responsible for releasing the parolee should be

held liable for the ensuing harm. Id. The parents claimed state

officials were aware that the parolee had been committed to a

mental hospital as a sex offender not amenable to treatment

and imprisoned with the recommendation that he not be

paroled, but that these officials nonetheless decided to parole

him five years into his incarceration. Id. The parolee

committed the murder five months after his release. Id. at

279-80. The Court assumed that state officials knew or should

have known that such an incident would occur. Id. at 280.

Nonetheless, it held that “at least under the particular

circumstances of this parole decision, appellants’ decedent’s

death is too remote a consequence of the parole officers’

action to hold them responsible under the federal civil rights

law.” Id. at 285. The Court explained that regardless of

whether the parole board could be said to have “proximately”

caused the decedent’s death as a matter of state tort law, the

parole board did not deprive the decedent of life within the

meaning of the Fourteenth Amendment. Id. The Court

concluded that “[a]lthough a § 1983 claim has been described

as ‘a species of tort liability,’ it is perfectly clear that not

every injury in which a state official has played some part is

actionable under that statute.” Id. (citation omitted) (quoting

Imbler v. Pachtman, 424 U.S. 409, 417 (1976)).

Martinez made clear that even if state officials take

action with the requisite culpability, the scope of

consequences for which they may be held liable is

circumscribed. At some point, regardless of what state tort

law may provide, the harm that follows from state officials’

actions becomes too remote to support liability under § 1983.

Although Martinez did not lay down a rubric for measuring

remoteness, we have addressed this issue with some

18

specificity in the state-created danger context.

In Morse v. Lower Merion School District, we found

plaintiffs failed to adequately plead the “foreseeable and

fairly direct” element of a state-created danger claim. 132

F.3d 902, 904 (3d Cir. 1997). School officials in Morse had

allegedly left the back entrance to the school unlocked, in

violation of school policy, to allow various contractors to

come and go easily. Id. Through this unlocked back door, a

mentally ill person entered the school grounds and shot and

killed teacher Diane Morse. Id. Morse’s family brought suit

against the school district, alleging that officials’ actions in

leaving the back door unlocked deprived Morse of her right

under the Fourteenth Amendment to be free from physical

harm. Id. We affirmed the District Court’s dismissal of the

claim. Id. In addition to holding that the murder was

unforeseeable, we held the attack “was not a ‘fairly direct’

result of defendants’ actions.” Id. at 908. We explained,

[w]hile we must accept the allegation that [the

attacker] gained access to the building through

the unlocked rear entrance, this does not mean

the attack on Diane Morse occurred as a direct

result of defendants allowing the construction

crews to prop open the door. The causation, if

any, is too attenuated.

Id. at 909. In short, “it was not defendants’ decision to allow

the rear entrance to the school to remain open that

precipitated or was the catalyst for the attack on Ms. Morse. .

. . [A]s a matter of law, . . . their actions [cannot] be said to

have directly caused the attack.” Id. at 910.

19

Also instructive on the issue of causation is a case

considered by the United States Court of Appeals for the

Tenth Circuit. See Ruiz v. McDonnell, 299 F.3d 1173 (10th

Cir. 2002). In Ruiz, a young boy was fatally injured by the

operator of his daycare facility. Id. at 1178. After the boy’s

death, his mother brought suit against state licensing officials,

alleging the officials improperly licensed the daycare facility

even though they knew or should have known that the

operator had a history of domestic violence and that the

facility did not carry proper insurance. Id. Applying a state-

created danger test that requires a plaintiff to allege that “the

defendants’ conduct put the plaintiff at substantial risk of

serious, immediate, and proximate harm,” the Tenth Circuit

held the plaintiff had not adequately pled a state-created

danger claim. Id. at 1183. The court explained that

“[a]ffirmative conduct for purposes of § 1983 should

typically involve conduct that imposes an immediate threat of

harm, which by its nature has a limited range and duration.”

Id. The plaintiff’s claim failed because, among other things,

“improper licensure did not impose an immediate threat of

harm,” but instead an unactionable “threat of an indefinite

range and duration.” Id.

Although our articulation of the elements of a state-

created danger claim differs somewhat from that expressed by

the Tenth Circuit, we concur that improper licensure will

often be too far removed from the ultimate harm to permit

liability under § 1983. Our phrasing in Morse supports this

view. To fulfill the “fairly direct” requirement of the state-

created danger claim, the plaintiff must plausibly allege that

state officials’ actions “precipitated or w[ere] the catalyst for”

the harm for which the plaintiff brings suit. Morse, 132 F.3d

at 910. “Precipitate,” in turn, means “to cause to happen or

20

come to a crisis suddenly, unexpectedly, or too soon.”

Webster’s Third New International Dictionary 1784 (1993);

see also The Random House Dictionary of the English

Language 1521 (2d ed. 1987) (defining “precipitate” as “to

hasten the occurrence of; bring about prematurely, hastily, or

suddenly”); id. at 325 (defining “catalyst” as “a person or

thing that precipitates an event or change”). Thus, it is

insufficient to plead that state officials’ actions took place

somewhere along the causal chain that ultimately led to the

plaintiff’s harm.

Plaintiffs have not plausibly alleged that defendants’

actions were close in time and succession to the ultimate

harm. In other words, defendants’ approval and subsidization

of the apartment did not lead “fairly directly” to the fire that

claimed the lives of Richardson and Henry. Defendants’

actions were separated from the ultimate harm by a lengthy

period of time and intervening forces and actions.

Although the cause of the fire is not known at this

stage of the litigation, plaintiffs do not allege that defendants

caused the fire or increased the apartment’s susceptibility to

fire. Nor do plaintiffs contend that defendants failed to install

a smoke detector and a fire escape on the third floor of

Richardson’s apartment. Plaintiffs’ allegations against

defendants are a step further removed: plaintiffs contend that

defendants should have compelled or induced the

landlord/owners to install a fire escape and smoke detector (or

induced Richardson to live elsewhere), either by not

approving the apartment for the Section 8 housing program

and/or by terminating the subsidy payments that allowed

Richardson to continue to live there.

21

Unfortunately for plaintiffs, their reasoning proves too

much. Plaintiffs’ complaint makes clear it was the owners’

responsibility—not defendants’—to install a smoke detector

and fire escape. The regulations cited by plaintiffs confirm

the owner is required to maintain the unit in accordance with

the Housing Quality Standards. See Compl. ¶ 42 (citing 24

C.F.R. 982.404(a)). Assuming, as we must, that a smoke

detector and fire escape could have prevented decedents’

deaths, the responsibility (and capability) to install these

safety features did not rest with defendants. 7

Further attenuating the connection between

defendants’ actions and the ultimate harm is the fact that

Richardson remained in the apartment and received rent

subsidies despite having actual notice the apartment failed to

meet the Housing Quality Standards. There was substantial

time to reflect on the living situation before the fire took

place. Defendants did not “‘throw[] [her] into a snake pit,’”

Ye v. United States, 484 F.3d 634, 637 (3d Cir. 2007)

(quoting Bowers v. DeVito, 686 F.2d 616, 618 (7th Cir.

1982)), with all the urgency that such a situation would entail.

According to the complaint, defendants warned Richardson

that her apartment was not up to code. And plaintiffs do not

allege that defendants did anything to hinder her or the

landlord/owners from bringing it into compliance. As

unfortunate as the circumstances may be, “[w]hen a victim

bears some responsibility for the risks she has incurred, it is

even more difficult to say that the ‘state’ has ‘created’ the

7

We recognize that plaintiffs have a negligence claim

pending against the landlord/owners in the District Court. We

express no opinion on the merits of that action.

22

‘danger’ to her by its affirmative acts.” Jones v. Reynolds,

438 F.3d 685, 694 (6th Cir. 2006). 8

Under the circumstances, we cannot find that

defendants created the danger faced by decedents—there

were too many links in the causal chain after defendants acted

and before tragedy struck.

V.

The Supreme Court has counseled a restrained

approach in the area of substantive due process. The Court

has said that “guideposts for responsible decisionmaking in

this unchartered area are scarce and open-ended,” and

cautioned that courts must “exercise the utmost care

whenever . . . asked to break new ground in this field.”

Collins v. City of Harker Heights, 503 U.S. 115, 125 (1992).

Heeding this advice, the DeShaney Court declined to expand

its substantive due process jurisprudence even in the face of

tragic circumstances, explaining that

[t]he people . . . may well prefer a system

of liability which would place upon the State

and its officials the responsibility for failure to

8

By so holding, we do not mean to minimize the difficult

situation faced by many participants in the Section 8 housing

choice voucher program. We recognize that, practically

speaking, Section 8 participants may face limited options for

obtaining safe and sanitary housing. We merely emphasize

that these limitations derive from the housing market and the

participants’ financial circumstances—not from the state’s

implementation of the housing voucher program.

23

act in situations such as the present one. They

may create such a system, if they do not have it

already, by changing the tort law of the State in

accordance with the regular lawmaking process.

But they should not have it thrust upon them by

this Court’s expansion of the Due Process

Clause of the Fourteenth Amendment.

489 U.S. at 203. Again, in County of Sacramento v. Lewis, the

Court said that substantive due process “does not entail a

body of constitutional law imposing liability whenever

someone cloaked with state authority causes harm,” 523 U.S.

833, 848 (1998), and found that in cases dealing with

executive action, our role is to guard against “only the most

egregious official conduct,” id. at 846.

Under our state-created danger jurisprudence, we

cannot find that defendants’ failings amount to a state-created

danger. We decline to expand the state-created danger

doctrine—a narrow exception to the general rule that the state

has no duty to protect its citizens from private harms—to

embrace this case. 9 Accordingly, we will reverse the order of

the District Court denying qualified immunity to Horan and

Angelotti and remand for proceedings consistent with this

opinion.

9

We are not aware of a case in which a circuit court extended

liability under the state-created danger doctrine to licensing-

type activities. Nor have plaintiffs cited such a case.

24