Nicholas Malfitano Jun. 9, 2015, 1:35pm


PHILADELPHIA – On Thursday, a federal appeals court affirmed the verdict of a Philadelphia federal court by dismissing a due process claim brought by a former Section 8 housing resident.

Judge Patty Shwartz, in authoring an opinion for U.S. Court of Appeals for the Third Circuit colleagues D. Michael Fisher and Kent A. Jordan, affirmed the decision of the trial court to dismiss Ravonnia Ray’s substantive due process claim against the Philadelphia Housing Authority (PHA) and landlord John Cassidy, for her daughter Daevonna McField’s alleged exposure to lead-based paint while they resided in Section 8 housing at 2040 South 68th Street.

According to court records, the 68th Street property was run by Cassidy. On June 1, 2006, Ray entered into a two-year lease agreement with Cassidy for an apartment on that site.

The PHA approved Ray’s lease for inclusion in the Section 8 Program and, in accordance with the Housing Assistance Payment contract, paid Cassidy $501 per month in subsidies on Ray’s behalf.

On June 1, 2008, Ray renewed her lease, which the PHA again approved as part of the Section 8 program. The lease renewal included a “Lead-Based Paint Disclosure Addendum” that was binding on Cassidy.

In March 2009, the PHA inspected the property and discovered several violations of the Section 8 Program’s Housing Quality Standards (HQS), including uncovered electrical outlets, broken windows, and inoperable range burners.

The PHA re-inspected the property three times in April and May 2009, and reported Cassidy failed to address the HQS violations. None of the PHA’s inspection reports identified lead paint-related hazards in the property, according to the lawsuit.

On June 25, 2009, McField underwent a blood test that revealed “dangerously elevated levels of lead.”

Ray sent her daughter’s blood test results to the Philadelphia Department of Health, which also inspected the property and found lead-based paint on more than 80 surfaces.

The Department of Health ordered Cassidy to eliminate the lead-based paint, but he allegedly failed to do so, and McField and Ray eventually moved out of the apartment.

McField was later diagnosed with “catastrophic brain injury,” which the lawsuit claims will set back her future “educational, social, vocational and intellectual development.”

On McField’s behalf, Ray filed a five-count complaint against Cassidy and the PHA in connection with her daughter’s alleged lead paint exposure.

The lower court granted the PHA’s motion to dismiss, since it felt Ray failed to allege that the PHA’s approval of the property for inclusion in its Section 8 Program was a “fairly direct” cause of McField’s injuries.

Though the district court dismissed all of Ray’s claims against the PHA, the only one appealed by the plaintiff was the dismissal of her state-created danger claim.

“Plaintiff alleges that the PHA violated her due process rights by ‘exercising its authority in a manner’ that made her ‘more vulnerable to danger’ from lead-based paint in the property,” Shwartz said, pointing to the plaintiff’s referral to the state-created danger theory of liability.

That theory didn’t meet Shwartz’s legal threshold, who stated the plaintiff “failed to plausibly allege that the PHA precipitated, caused, or was the catalyst for her harm.”

“Plaintiff does not allege that the PHA introduced lead paint to the property or was responsible for its presence there. Nor does Plaintiff allege that the PHA increased the quantity of lead paint in the property or ‘did anything to hinder Cassidy from bringing the property into compliance’ with HQS,” Shwartz said.

“In short, plaintiff’s allegations fail to show ‘that the PHA created the danger plaintiff faced while living in the property.’”

The plaintiffs were seeking judgment in their favor and damages in excess of $150,000, interest, court costs, delay damages and any other relief the Court deemed proper in this case.

The plaintiffs were represented by John N. Zervanos of Soloff & Zervanos, in Philadelphia.

The defendant was represented by John C. McMeekin of Berger & Montague, also in Philadelphia.

U.S. District Court for the Eastern District of Pennsylvania case 2:13-cv-05284

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nickpennrecord@gmail.com

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