Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

McCray v. Housing Authority of Baltimore City

United States District Court, D. Maryland

August 29, 2019

RESA McCRAY, et al. Plaintiffs,
v.
HOUSING AUTHORITY OF BALTIMORE CITY, et al. Defendants.

          MEMORANDUM OPINION

          Richard D. Bennett, United States District Judge.

         Plaintiffs, Resa McCray and Charles Smith, Individually and as Personal Representatives of the Estate of Minor C.S., and Parents and Next Friends of C.S., bring a twelve-count Complaint against the Housing Authority of Baltimore City ("HABC"); Paul T. Graziano ("Graziano"), Individually and in his Official Capacity as Former Baltimore Housing Commissioner and Former Executive Director of the Housing Authority of Baltimore City; Michael Braverman ("Braverman"), Individually and in his Official Capacity as Baltimore Housing Commissioner and Former Acting Housing Commissioner and Commissioner of the Department of Housing and Community Development and Acting Executive Director; and Janet Abrahams ("Abrahams"), Individually and in her Official Capacity as Executive Director, Housing Authority of Baltimore City (collectively, "Defendants"). (Third Am. Compl., ECF No. 16.) Plaintiffs allege that Defendants are liable for personal injuries and for the wrongful death of a minor child, C.S., allegedly caused by willful disregard and neglect in permitting mold to grow in a public housing unit in which the family lived. (Id.) The Plaintiffs have been permitted to amend their original Complaint on two occasions. (ECF Nos. 6, 16.)

         Currently pending before this Court is Defendants' Motion to Dismiss Complaint or in die Alternative for Summary Judgment (ECF No. 20). The parties' submissions have been reviewed and no hearing is necessary. See Local Rule 105.6 (D. Md. 2018). For the reasons that follow, Defendants' motion shall be GRANTED because Plaintiffs have failed to plausibly allege a timely claim, and this case shall be DISMISSED WITH PREJUDICE.

         BACKGROUND

         I. Factual Background

         In ruling on a motion to dismiss, this Court "accept[s] as true all well-pleaded facts in a complaint and construe[s] them in the light most favorable to the plaintiff." Wikimedia Pound. v. Nat'l Sec. Agency, 857 F.3d 193, 208 (4th Cir. 2017) (citing SD3, LLC v. Black & Decker (U.S.) Inc., 801 F.3d 412, 422 (4th Cir. 2015)). Plaintiffs Resa McCray ("McCray") and Charles Smith ("Smith") were the parents of the decedent, C.S. (ECF No. 16 at ¶¶ 10, 11.) McCray, Smith, and C.S. were residents at McCulloh Homes, which is a public housing project in Baltimore, Maryland, operated by the Housing Authority of Baltimore City ("HABC"). (Id. at ¶ 22.) The family moved into the McCulloh Homes apartment on or about September 4, 2012, when C.S. was eleven years of age. (Id. at ¶¶ 19, 22.) Plaintiffs allege that C.S. had been diagnosed with asthma but had never been hospitalized up to that time. (Id. at ¶ 23.)

         Plaintiffs allege that for the first two to three years during which they lived in the apartment, they did not notice any mold conditions in the apartment. (Id. at ¶ 24.) However, at some point after that, they allege having observed that the roof and/or ceiling began to leak and show signs of water damage, they noticed a distinctive odor, and they noticed that the wall in their closet was being blackened by mold. (Id. at ¶ 25.) McCray and Smith allege that they submitted official requests for repairs, known as 'work orders' to the HABC, but no repairs were made. (Id. at ¶¶ 26-27.) They further allege that their next-door neighbor, with whom they shared the wall on which the mold was growing, had also observed the mold and the neighbor's minor daughter who also suffered from asthma, suffered an acute asthma attack in the apartment and died within days of the attack. (Id. at ¶ 28.) During this time, C.S.'s asthma became more severe. (Id. at ¶ 29.)

         Plaintiffs allege that on May 1, 2014, C.S.'s doctor recommended that they "have any water leaks fixed and remove any mold," and on August 20, 2014, after C.S. has been hospitalized, an Asthma Action Plan included the observation that C.S.'s asthma was triggered by mold. (Id. at ¶¶ 30, -31.) C.S. was hospitalized again on August 29, 2014 with an acute asthma attack, and the doctor recommended that C.S. "[c]onsider staying at a relative's home until the fungus is out of your home or until you are able to move." (Id. at ¶ 33.) Between September 30, 2014 and October 14, 2014, C.S. was treated for her asthma at the Johns Hopkins Pediatric Respiratory Clinic after another acute attack, and she was hospitalized again in May and June 2015. (Id. at ¶¶ 34, 35.) These hospitalizations and doctor visits caused C.S. to miss school and her parents to miss work. (Id. at ¶¶ 34, 37.) C.S. died on July 31, 2015 after suffering an acute asthma attack on July 24, 2015. (Id. at ¶¶ 1, 19.) McCray and Smith allege that they were too poor to move out of the apartment, and they continue to live there today even though the mold is still growing. (Id. at ¶¶ 1, 47.)

         Plaintiffs allege that the HABC knew or should have known about the mold conditions in the apartment because ample notice was provided through repeated complaints not only by the Plaintiffs but also from other residents of the building! (Id. at ¶ 38.)

         II. Procedural History

         Plaintiffs filed the instant lawsuit on July 25, 2018 against the Mayor and City Council Baltimore City; Paul T. Graziano, Former Baltimore Housing Commissioner; and Michael Braverman, Baltimore Housing Commissioner, alleging 19 causes of action ranging from violations of the Fair Housing Act to wrongful death.[1] (Compl., ECF No. 1.) On August 15, 2018, Plaintiffs filed their first Amended Complaint, adding the Housing Authority of Baltimore City as a defendant and striking the Mayor and City Council of Baltimore City as a defendant. (ECF No. 6.) About a month later, on September 14, 2018, Plaintiffs filed a Second Amended Complaint, adding Janet Abrahams, Executive Director, Housing Authority of Baltimore City as a defendant. (ECF No. 9.) Plaintiffs also modified Graziano's title to include Former Executive Director of the Housing Authority of Baltimore City, and modified Braverman's title to include Former Acting Housing Commissioner and Commissioner of the Department of Housing and Community Development. (Id.) Further, Plaintiffs dropped seven causes of action, alleging only twelve causes of action.[2] (Id.) Plaintiffs again amended their Complaint on November 7, 2018, and this Third Amended Complaint is the operative complaint. (ECF No. 16.) In the Third Amended Complaint, Plaintiffs modified Graziano's and Braverman's titles, adding "Individually and in his Official Capacity as . . ." Braverman's tide was further modified to include Acting Executive Director. (Id.)

         The Third Amended Complaint (ECF No. 16) alleges the following causes of action:

• Count I - Fair Housing Act, Disability-based Discrimination in Violation of the Fair Housing Act Amendments
• Count II - Rehabilitation Act Disability Discrimination Claim, Disability-based Discrimination in Violation of Section 504 of the Rehabilitation Act of 1973
• Count III - Americans with Disabilities Act Tide II Disability Discrimination Claim, Disability-based Discrimination in Violation of Title II of the Americans with Disabilities Act of 1990
• Count IV - Civil Rights Act Due Process
• Count V - Civil Rights Act Equal Protection
• Count VI - Maryland Constitution Article 24 Due Process Claim (By Resa McCray and Charles Smith in Their Individual Capacities Only)
• Count VII - Maryland Constitution Article 24 Equal Protection (By Resa McCray and Charles Smith in Their Individual Capacities Only)
• Count VIII - Breach of the Implied Warranty of Habitability (By Resa McCray in her Individual Capacity Only)
• Count IX - Breach of Lease Agreement (By Resa McCray in her Individual Capacity Only)
• Count X - Negligent Hiring, Training, Retention & Supervision (By Resa McCray and Charles Smith in Their Individual Capacities Only)
• Count XI - Federal Unconstitutional Pattern and Practice
• Count XII - Negligence (By Resa McCray and Charles Smith in Their ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.