                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 13a0554n.06

                                           No. 12-3462                                  FILED
                                                                                     Jun 07, 2013
                          UNITED STATES COURT OF APPEALS
                                                                              DEBORAH S. HUNT, Clerk
                               FOR THE SIXTH CIRCUIT


TRICIA LEWIS; DRAKE LEWIS;                       )
MALEAH YOUNG,                                    )
                                                 )
       Plaintiffs-Appellants,                    )
                                                 )
v.                                               )
                                                 )
MYRON D. WHEATLEY,                               )   ON APPEAL FROM THE UNITED
                                                 )   STATES DISTRICT COURT FOR THE
       Defendant,                                )   NORTHERN DISTRICT OF OHIO
                                                 )
       and                                       )
                                                 )
ASHTABULA METROPOLITAN                           )
HOUSING AUTHORITY,                               )
                                                 )
       Defendant-Appellee.                       )



Before: BOGGS, GIBBONS, and COOK, Circuit Judges.

       JULIA SMITH GIBBONS, Circuit Judge. This case arises from the claims of Tricia

Lewis and her children against the Ashtabula Metropolitan Housing Authority (“AMHA”), leasing

agents, and assorted contractors. The plaintiffs claim that they suffered from health problems

stemming from the presence of mold and microbiological contaminants in their apartment during

their participation in the Section 8 Housing Program as tenants of a property at 5943 Runkle Avenue

in Ashtabula, Ohio. The plaintiffs initially filed their complaint in the Ashtabula Court of Common

Pleas, and the defendants removed the case to federal court. AMHA then filed a motion to dismiss
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the claims against it, which the district court granted. The plaintiffs now appeal the district court’s

dismissal of their claims brought pursuant to 42 U.S.C. § 1983 and its denial of their motion to

amend their complaint. We affirm.

                                                  I.

       The plaintiffs were participants in the Section 8 Housing Program funded by the United

States Department of Housing and Urban Development (“HUD”). In Ashtabula, this program is

administered by the AMHA. Under the program, prospective tenants approach a private landlord

to determine whether the landlord would be amenable to participating in the Section 8 housing

program. If the landlord agrees, the prospective tenants must then seek approval from AMHA.

AMHA will only approve the request if the unit (1) is eligible, (2) has been inspected and found to

comply with housing-quality standards prescribed by HUD, (3) has a proposed lease including the

tenancy addendum prescribed by HUD, and (4) has a reasonable rent. See 24 C.F.R. § 982.305(a).

HUD regulations mandate that AMHA inspect the unit annually during its occupancy to determine

if it continues to meet those housing-quality standards. See 24 C.F.R. § 982.405(a). In this case,

after AMHA approved the request, AMHA and the renting defendants executed a “HAP contract”

memorializing AMHA’s commitment to make rental-subsidy payments.                      See 24 C.F.R.

§ 982.1(b)(2).

       The plaintiffs brought this lawsuit claiming that the Runkle Avenue property did not meet

HUD’s housing-quality standards and that “improper inspections and repairs” were made to the

property. The plaintiffs allege that none of the defendants conducted testing for microbiological

contamination due to dampness. As a result of this failure to inspect, Lewis alleges that she and her

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children have suffered “catastrophic and debilitating injuries.” Further, Lewis asserts that AMHA

“affirmatively exercised [its] authority in a manner that created a danger to Tricia Lewis and her two

minor children and/or used [its] authority in a way that rendered Tricia Lewis and her two minor

children more vulnerable to danger” than if AMHA had not acted at all. AMHA filed a motion to

dismiss the claims against it.

        On January 5, 2012, the magistrate judge submitted a report and recommendation proposing

that AMHA’s motion to dismiss be granted. The plaintiffs then filed objections to the report and

recommendation and the defendants responded. The district court largely adopted the magistrate

judge’s recommendations— dismissing the plaintiffs’ federal law claims with prejudice, denying the

plaintiffs’ request to amend their complaint as futile, and remanding the plaintiffs’ state law claims

to the Ashtabula County Court of Common Pleas. The district court held that the plaintiffs’ claims

pursuant to 42 U.S.C. § 1983 failed because: (1) the United States Housing Act of 1936, 42 U.S.C.

§ 1437 (“USHA”), and its implementing regulations do not provide a private right of action under

which the plaintiffs may bring suit; and (2) the plaintiffs alleged only inaction by the AMHA and

therefore could not properly plead that a state-created danger caused their injuries. The district court

also denied the plaintiffs’ motion to amend their complaint on the basis that amendment would be

futile. On appeal, the plaintiffs-appellants argue that the district court improperly granted AMHA’s

motion to dismiss and improperly denied their motion to amend their complaint.

                                                  II.

        We review a district court’s ruling on a motion to dismiss de novo. Erie Cnty. v. Morton

Salt, Inc., 702 F.3d 860, 867 (6th Cir. 2012). We review the denial of a motion to amend under the

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abuse-of-discretion standard “unless the motion was denied because the amended pleading would

not withstand a motion to dismiss, in which case the standard of review is de novo.” Colvin v.

Caruso, 605 F.3d 282, 294 (6th Cir. 2010) (internal quotation marks omitted).

                                                 III.

       No party challenges the district court’s order remanding the plaintiffs’ state-law claims to the

Ashtabula County Court of Common Pleas. Therefore, we address only the plaintiffs’ claim that the

AMHA violated their rights pursuant to the USHA and its implementing regulations, as well as their

claim that the AMHA violated their rights pursuant to the Fifth and Fourteenth Amendments to the

United States Constitution.

                                                  A.

       Regarding the plaintiffs’ claim pursuant to the USHA, we have noted that § 1437 “is merely

a policy statement” and therefore does not provide a private right of action. Howard v. Pierce, 738

F.2d 722, 727 n.9 (6th Cir. 1984). More specifically, “[a]lthough residents of public housing

undoubtedly ‘benefit’ from the statutory provisions at issue, the language of § 1437f has an aggregate

focus on the entity being regulated, thereby belying any intent to create rights enforceable by

individual tenants.” Johnson v. City of Detroit, 446 F.3d 614, 627 (6th Cir. 2006). Therefore, the

USHA “does not give rise to an individual entitlement enforceable under § 1983.” Id. “[B]ecause

. . . the relevant provisions of . . . the USHA do not confer personal federal rights upon plaintiff[s]

that are enforceable under § 1983, the federal regulations promulgated pursuant to these statutes are

likewise incapable of independently conferring such rights.” Id. at 629. In fact, the regulations

themselves say as much. 24 C.F.R. § 982.406 states that:

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        Part 982 does not create any right of the family, or any party other than HUD or the
        [administering state agency], to require enforcement of the HQS requirements by
        HUD or the [administering state agency], or to assert any claim against HUD or the
        [administering state agency], for damages, injunction or other relief, for alleged
        failure to enforce the HQS.

We are bound by our opinion in Johnson and therefore affirm the district court’s dismissal of the

plaintiffs’ claims pursuant to § 1437 and its implementing regulations.

                                                   B.

        We are thus left only with the plaintiffs’ claims that AMHA caused a “state-created danger”

to Lewis and her children, in violation of the Fifth and Fourteenth Amendments. The state-created-

danger doctrine cited by the plaintiffs derives from the Supreme Court’s opinion in DeShaney v.

Winnebago County Department of Social Services, 489 U.S. 189 (1989). In DeShaney, the Supreme

Court articulated the general rule that “nothing in the language of the Due Process Clause itself

requires the State to protect the life, liberty, and property of its citizens against invasion by private

actors.” Id. at 195. The Supreme Court acknowledged only one departure from that rule, noting that

“when the State takes a person into its custody and holds him there against his will, the Constitution

imposes upon it a corresponding duty to assume some responsibility for his safety and general well-

being.” Id. at 199–200. Under this doctrine, we have held that a plaintiff also may succeed under

a state-created-danger theory if the State “cause[s] or greatly increase[s] the risk of harm to its

citizens . . . through its own affirmative acts.” Jones v. Reynolds, 438 F.3d 685, 690 (6th Cir. 2006)

(internal quotation marks omitted). To succeed under this theory, a plaintiff must allege three

elements:



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         (1) an affirmative act by the state which either created or increased the risk that the
         plaintiff would be exposed to an act of violence by a third party; (2) a special danger
         to the plaintiff wherein the state’s actions placed the plaintiff specifically at risk, as
         distinguished from a risk that affects the public at large; and (3) the state knew or
         should have known that its actions specifically endangered the plaintiff.

Id. (internal quotation marks omitted). In this case, the plaintiffs allege only that AMHA exposed

them to a state-created danger by failing to inspect or failing to adequately inspect their Section 8

rental property. However, this claim fails under the first part of this circuit’s test—the plaintiffs have

not alleged an affirmative act by AMHA that created or increased the risk to them. As in prior cases

in which we have declined to find a state-created danger, these plaintiffs have not shown that state

actors “took any affirmative action that exposed [the plaintiffs] to any danger to which [they were]

not already exposed.” See id. at 691; Sargi v. Kent City Bd. of Educ., 70 F.3d 907, 913 (6th Cir.

1995).

         We need not decide in this case whether an action under a state-created-danger theory may

ever be properly pled against a state agency administering a Section 8 housing program because here

no affirmative action has been alleged. We have held that a failure to act cannot satisfy the

“affirmative act” requirement. Koulta v. Merciez, 477 F.3d 442, 445–46 (6th Cir. 2007). Therefore,

AMHA’s failure to inspect the property—or failure to inspect it to the plaintiffs’

satisfaction—cannot serve as a basis for liability under a state-created-danger theory. Any danger

to plaintiffs from microbiological or other contaminants existed at the property independent of any

involvement by AMHA, and the plaintiffs have not alleged that any affirmative act of the agency

exacerbated the danger to plaintiffs at the property.



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                                                   IV.

        Finally, the plaintiffs seek reversal of the district court’s denial of their motion to amend their

complaint. This claim is also without merit. The plaintiffs did not submit a separate motion to

amend their complaint but sought such relief only in the alternative, if the district court were to find

their complaint to be deficient. The plaintiffs did not submit a proposed amended complaint, seeking

merely “the opportunity to amend their complaint to make additional factual allegations.” A district

court may deny a motion to amend as futile, as the district court did in this case, when the proposed

amendment would not survive a motion to dismiss. Brown v. Owens Corning Inv. Review Comm.,

622 F.3d 564, 574 (6th Cir. 2010). Given that even an amended complaint could not survive a

motion to dismiss, and the plaintiffs have not provided any additional factual allegations that they

would submit in an amended complaint, the district court properly dismissed the motion to amend

on the basis that the amendment would be futile.

                                                    V.

        For the foregoing reasons, we affirm the judgment of the district court.




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