Opinion
Civil Action No. 1:05-cv-1861-GET.
November 9, 2005
ORDER
The above-styled matter is presently before the court on the Magistrate Judge's Order for frivolity determination [docket no. 3].
Plaintiff, proceeding pro se, filed the instant action on May 18, 2005, against the United States Department for Housing and Urban Development ("HUD"). Plaintiff alleges that HUD is liable for injuries resulting from hazardous conditions in her Section 8 housing because HUD failed to comply with the lease, and its inspections failed to elicit compliance with housing codes and standards. HUD administers the Section 8 Program pursuant to the U.S. Housing Act of 1937, 42 U.S.C. § 1437 et. seq. This program was established to "aid low-income families in obtaining a decent place to live." On July 14, 2005, the Magistrate Judge granted plaintiff's request to proceed in forma pauperis ("IFP"). Therefore, this action has been submitted to the court for a frivolity determination pursuant to 28 U.S.C. § 1915(e).
Discussion
Section 1915 (e) (2) (B) directs the district court to dismiss an IFP claim if the court determines that the action is frivolous or fails to state a claim. Id. A claim is "frivolous," when it appears "from the face of the complaint that the factual allegations are `clearly baseless' or that the legal theories are `indisputably meritless.'" Neitzke v. Williams, 490 U.S. 319, 327 (1989). The court evaluates the complaint, because plaintiff is acting pro se, less stringently than pleadings filed by counsel, but may not serve as de facto counsel or rewrite an otherwise defective pleading in order to sustain an action.Wallace v. Smith, 145 Fed. Appx. 300, 301 (11th Cir. 2005). Plaintiff's complaint may be construed to raise several different types of claims. The court will address each in turn.
Fraud
Plaintiff asserts in paragraphs 1a, 1e, b, p, q, and r of her complaint that defendant acted fraudulently. "In all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity." Fed.R.Civ.P. 9 (b) In order to allege fraud with particularity, the claimant "must allege the details of the defendants allegedly fraudulent acts, when they occurred, and who engaged in them." Cooper v. Blue Cross and Blue Shield of Florida, 19 F. 3d 562, 568 (11th Cir. 1994). In paragraphs 1a, 1e, p, q, and r, plaintiff alleges absolutely nothing other than that she is seeking damages for fraud. In paragraph b, plaintiff alleges only that HUD willfully conducted an inaccurate investigation into the conditions of her section 8 housing. Accordingly, even under the less stringent standard applied to pro se pleadings, the court finds that plaintiff has failed to allege sufficient facts to support her fraud claims. Even in paragraph b, there is no explanation of where the misrepresentations were recorded or by whom they were made. Accordingly, plaintiff's fraud claims are DISMISSED pursuant to Section 1915(e)(2).
Breach of Housing Laws and Ordinances
Plaintiff asserts that defendant breached housing laws, ordinances and regulations in paragraphs 1c, f, j and n. Georgia provides a cause of action against the landlord for breach of housing codes and other legislation. Thompson v. Crownever, 259 Ga. 126, 129 (1989). A claim for breach of state and local regulations is a tort action. Johnston v. Ross, 264 Ga. App. 252 (2003). "An action shall not be instituted upon a claim against the United States for money damages for personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government . . . unless the claimant shall have first presented the claim to the appropriate federal agency and his claim shall have been finally denied by the agency in writing and sent by certified or registered mail." 28 U.S.C. § 2672;Mann v. Pierce, 803 F.2d 1552, 1554-1555 (11th Cir. 1986). Plaintiff has neither claimed nor offered evidence to show that she has exhausted her administrative remedies within HUD; or even that she brought her claim for money damages to HUD's attention before filing the instant suit. Consequently, plaintiff's claims based on violations of local housing codes and laws are DISMISSED.
Plaintiff also argues that HUD breached its own housing code policies in paragraph d. The Eleventh Circuit has not decided whether federal housing regulations create a cause of action for money damages. Since the court has no evidence that Congress intended to provide a cause of action under housing regulations, when tenants have a remedy under contract and tort law, the court will refrain from "engraft[ing] a remedy on a statute that Congress did not intend to provide." Kingston Square Tenants Assac. v. Tuskegee Gardens, Ltd., 792 F.Supp. 1566 (S.D. Fla. 1992) (internal citations omitted). Accordingly, plaintiff's claim must be DISMISSED pursuant to Section 1915(e)(2).
Finally, plaintiff asserts that defendant breached "Housing Authority" law in paragraph e. It is unclear whether "Housing Authority" law is state or federal. However, given that plaintiff's claims for breach of housing codes and regulations are gnat sustainable, whether state or federal, for the aforementioned reasons, these assertions also are DISMISSED.
Negligence
Plaintiff alleges that defendant was negligent in several different ways in paragraphs 1f, a, g, i, m, t, u, v, and w of her complaint. Additionally, in paragraph h, plaintiff argues that defendant negligently breached its fiduciary duty. Negligence is indisputably a tort claim. For the reasons discussed in the above evaluation of plaintiff's breach of local housing codes tort claim, the FICA requires plaintiff's negligence claims to be DISMISSED.
Breach of Implied Warranty of Habitability
In paragraph I of her complaint, plaintiff argues that HUD violated an implied warranty of habitability. It is unclear whether plaintiff's warranty claim arises from federal or state law.
Although Georgia courts occasionally refer to an "implied warranty of habitability," the cause of action has never been specifically adopted. See Thompson, 259 Ga. at 129; Johnston v. Ross, 264 Ga. App. 252, 260 (2003). The opinions most often cite the Restatement of Law 2d, Property, for the proposition that landlords should be liable for harm to a tenant arising from a condition that violates either an implied warranty of habitability or housing codes, and then evaluate whether housing codes were violated, without further discussion of an implied warranty. Id. Because Georgia has not adopted a cause of action for implied warranty of habitability, if plaintiff's claim is based on an implied warranty arising from Georgia law, it must fail.
In the alternative, plaintiff could be arguing an implied warranty of habitability arising from federal law. However, there is no indication that Congress intended such a remedy, and the court will not create a new cause of action. Kingston Square Tenants Assoc., 792 F. Supp. at 1574, citing Alexander v. United States Dept. Of Hous. and Urban Dev., 555 F.2d 166, 171 (7th Cir. X977). Therefore, plaintiff's implied warranty of habitability claim fails, and is DISMISSED pursuant to Section 19Z5(e)(2).
Duress of Imprisonment
In paragraph s, plaintiff states that she is seeking damages for "duress of imprisonment." Because there are no supporting allegations, it is unclear whether plaintiff is attempting to argue false imprisonment or request damages from emotional distress using a different term. For a claim of false imprisonment, plaintiff must show that she was intentionally unlawfully arrested or detained. Ridgeview Institute, Inc. V. Handley, 224 Ga. App. 533, 537(1997). Plaintiff argues no facts supporting either. Accordingly, an action of false imprisonment may not be maintained. If paragraphs is merely re-stating plaintiff's request for damages for mental anguish and emotional distress, it is redundant. Accordingly, plaintiff's assertion of duress of imprisonment is accordingly DISMISSED.
Breach of Contract
Plaintiff raises breach of contract claims in paragraphs 1b, 1d and c of her complaint, arguing that HUD breached the lease between plaintiff and HUD. Tenants may bring breach of contract claims against HUD. Mann v. Pierce, 803 F.2d at 1556. One of plaintiff's breach of contract allegations in paragraph k argues that defendant violated "Gods Laws." There is no provision in state or federal law for a contract action based on a breach of God's law. Accordingly, plaintiff's breach of contract claim in paragraph, k is DISMISSED pursuant to Section 1915(e)(2). However, because plaintiff's allegations in paragraphs 1b, 1d and c might have a bas is in fact and might constitute a claim for breach of contract, the court cannot find that plaintiff's entire complaint is frivolous. Therefore, this action is allowed to proceed as any other action on plaintiff's breach of contract claims contained in paragraphs 1b, 1d and c.
The Clerk of the Court is hereby DIRECTED to FORWARD sufficient United States Marshal service and summons forms to the plaintiff. Upon receipt, plaintiff is hereby ORDERED to complete the forms and return them to the Clerk within thirty (30) days from the date of this order so that process may be served upon the defendant. This action shall proceed no further until these forms are returned. A failure to comply with the order in a timely fashion will result in a dismissal of the action pursuant to LR 41.3 NDGa. Should plaintiff fail to comply, the Clerk is hereby DIRECTED to RESUBMIT this action upon expiration of the aforementioned period.
The plaintiff is further REQUIRED to SERVE upon defendant or counsel for defendants a copy of every additional pleading or other document which is filed with the Clerk of Court, including with each paper so filed a certificate stating the date on which an accurate copy of that paper was mailed to defendants or counsel of defendants. This court shall disregard any papers submitted which have not been properly filed with the Clerk, or which do not include a certificate of service. The plaintiff is also REQUIRED to KEEP the court and the defendant advised of her current address at all times during the pendency of this action, and is admonished that the failure to do so may result in the dismissal of plaintiff's action.
Summary
Except for plaintiff's breach of contract claims in paragraphs 1b, 1d, and c, plaintiff's claims are DISMISSED pursuant to Section 1915(e)(2). Plaintiff's breach of contract claims contained in paragraphs lb, 1d and c may proceed as any other action. The Clerk of the Court is hereby DIRECTED to FORWARD sufficient United States Marshal service and summons forms to the plaintiff. Upon receipt, plaintiff is hereby ORDERED to complete the forms and return them to the Clerk within thirty (30) days from the date of this order so that process may be served upon the defendant. This action shall proceed no further until these forms are returned. A failure to comply with the order in a timely fashion will result in a dismissal of the action pursuant to LR 41.3 NDGa. Should plaintiff fail to comply, the Clerk is hereby DIRECTED to RESUBMIT this action upon expiration of the aforementioned period.The plaintiff is further REQUIRED to SERVE upon defendant or counsel for defendants a copy of every additional pleading or other document which is filed with the Clerk of Court, including with each paper so filed a certificate stating the date on which an accurate copy of that paper was mailed to defendants or counsel of defendants. This court shall disregard any papers submitted which have not been properly filed with the Clerk, or which do not include a certificate of service. The plaintiff is also REQUIRED to KEEP the court and the defendant advised of her current address to KEEP the court and the defendant advised of her current address at all times during the pendency of this action, and is admonished that the failure to do so may result in the dismissal of plaintiff's action.
SO ORDERED.