Virginia Lawyers Weekly VA Lawyers Weekly
Where a daughter of a man who died of carbon monoxide poisoning at his city-owned apartment alleged the city elected to apply its carbon-monoxide detector policy only to privately owned apartments, understaffed its inspectors and personnel, operated a non-uniform repair system, adopted a “custom of willful neglect” to obtain federal grants and failed to train and supervise its employees in complying with applicable housing laws, her suit was improperly dismissed.
Background
This case arises out of the death of Calvin Witherspoon Jr., who died of carbon monoxide poisoning at his city-owned apartment in Columbia, South Carolina. Danielle Washington, Witherspoon’s daughter and the personal representative of his estate, appeals the district court’s dismissal of her complaint against the City of Columbia Housing Authority for failure to state a claim upon which relief could be granted.
Deliberate indifference
To prove a violation of substantive-due-process rights under the Fourteenth Amendment, a plaintiff must show that a defendant’s behavior was “so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience.”
Here, deliberate indifference is the correct standard to measure the Housing Authority’s conduct. Unlike cases involving emergency, split-second decisions, plaintiff alleges years of choices by the Housing Authority that led to the tragic circumstances of this case. For example, throughout Witherspoon’s tenancy at Allen Benedict Court, where he lived from 2012 until his death in 2019, the Housing Authority received requests from tenants to repair conditions at the apartments. Yet the Housing Authority chose not to respond to these complaints, or at most took only half-measures to resolve them.
Additionally, the Housing Authority adopted a specific policy in 2017 to ensure that missing carbon monoxide detectors, which it considered to be “life-threatening conditions,” were installed in some (privately owned) properties. But two years later — and with time to reflect that such “life-threatening conditions” from carbon monoxide threatened all of its properties — the Housing Authority had chosen not to apply the same policy to its own housing. Thus, the facts alleged show there was ample time to deliberate and reflect on those choices. Accordingly, deliberate indifference is the correct standard to apply here.
The Housing Authority argues that without prior knowledge of past complaints relating to carbon monoxide leaks or other similar dangerous conditions, it could not have known the danger here. But this court’s decision precedent dispels the Housing Authority’s argument that a prior incident is necessary to show knowledge of a risk. Plaintiff has alleged enough facts at this early stage to establish that the Housing Authority recognized the risk of carbon monoxide poisoning and acted inappropriately in light of that risk.
The court also finds that plaintiff has sufficiently pleaded that the Housing Authority acted inappropriately in light of this risk. Specifically, the Housing Authority failed to install a single carbon monoxide detector at Witherspoon’s 244-unit complex. It provided no preventative maintenance of appliances. Instead, through its policies and practices, the Housing Authority ensured that its property fell into a state of disrepair.
And even if tenants were to complain, the Housing Authority chose to understaff its maintenance personnel and inspectors, leaving its employees ill-equipped to provide adequate maintenance. Indeed, the Housing Authority had only a single inspector for 2,600 housing units.
Critically, too, Plaintiff alleged this policy of willful neglect in the apartment’s maintenance was a conscious choice by the Housing Authority. By engaging in a pattern of mismanagement and poor maintenance, the Housing Authority allegedly hoped to allow its properties to become “so dangerously unsafe and uninhabitable that they became eligible for federal grants.”
Monell
To hold a municipality responsible for a constitutional violation under Monell, a plaintiff must show that the municipality’s policies were “the ‘moving force’ behind a deprivation of federal rights.” Here, plaintiff’s complaint alleged that the Housing Authority elected to apply its carbon-monoxide detector policy only to privately owned apartments, understaffed its inspectors and personnel, operated a non-uniform repair system, adopted a “custom of willful neglect” to obtain federal grants and failed to train and supervise its employees in complying with applicable housing laws.
These are specific deficiencies in the Housing Authority’s procedures, practices and training programs. Plaintiff has also alleged sufficient facts to establish that the Housing Authority’s policies and customs were the moving force behind the constitutional injury.
Reversed and remanded.
Washington v. Housing Authority of the City of Columbia, Case No. 21-2059, Jan. 19, 2023. 4th Cir. (Wynn), from DSC at Columbia (Anderson). Richard Allan Hricik for Appellant. Charles Franklin Turner Jr. for Appellee. VLW 023-2-020. 2o pp.
