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Walker v. E I DuPont De Nemours and Co.

United States District Court, N.D. Indiana, Hammond Division

November 27, 2018

LASHAWNDA WALKER, et al., Plaintiffs,
v.
E I DUPONT DE NEMOURS AND COMPANY, et al., Defendants.

          OPINION AND ORDER

          JAMES T. MOODY JUDGE

         This matter is before the court on defendants' motions to dismiss. (DE # 101; DE # 111.) For the reasons identified below, defendants' motions are granted in part.

         I. BACKGROUND

         Plaintiffs, former residents of the West Calumet Public Housing Complex (“the Complex”), have filed a third amended complaint against defendants East Chicago Housing Authority (“ECHA”) and E I DuPont De Nemours and Company (“DuPont”). (DE # 98.) Plaintiffs' third amended complaint alleges claims arising under Indiana law and 42 U.S.C. § 1983, stemming from their exposure to lead and arsenic contamination at the site of the Complex. (Id.) Plaintiffs contend that DuPont is responsible for depositing these contaminants on the site. (Id. at 6.) Plaintiffs contend that ECHA knowingly failed to protect them from the contamination, and intentionally concealed the fact of the contamination from them. (Id.)

         Plaintiffs' third amended complaint alleges seven counts against defendants. Count I is a Section 1983 claim against ECHA for violating plaintiffs' substantive due process rights under a theory of state-created danger. (Id. at 7.) Count II is a Section 1983 claim against ECHA for violating plaintiffs' substantive due process right to bodily integrity. (Id. at 8.) Count III is a Section 1983 due process claim against ECHA for violating plaintiffs' contractually-created property rights. (Id. at 8-9.) Count IV is a negligence claim against DuPont. (Id. at 9-11.) Count V is a breach of contract and implied warranty claim against ECHA. (Id. at 11-12.) Count VI is a fraudulent misrepresentation claim against ECHA. (Id. at 12.) Count VII is a negligence claim against ECHA. (Id. at 13.)

         Both defendants have filed motions to dismiss. (DE # 101; DE # 111.) The motions are fully briefed and this matter is now ripe for resolution.

         II. LEGAL STANDARD

         A judge reviewing a complaint pursuant to Rule 12(b)(6) must construe the allegations in the complaint in the light most favorable to the non-moving party, accept all well-pleaded facts as true, and draw all reasonable inferences in favor of the non-movant. Erickson v. Pardus, 551 U.S. 89, 93 (2007); Reger Dev., LLC v. Nat'l City Bank, 595 F.3d 759, 763 (7th Cir. 2010). Under the liberal notice-pleading requirements of the Federal Rules of Civil Procedure, the complaint need only contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). A plaintiff must plead “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009).

         III. ANALYSIS

         A. Monell Liability

         ECHA argues that Counts I, II, and III fail to state a claim because plaintiffs failed to plead that ECHA is liable for any constitutional violation pursuant to Monell v. Dep't of Soc. Servs. of the City of New York, 436 U.S. 658 (1978). (DE # 112 at 13.)

         Under Monell, a local government may not be sued under Section 1983 for an injury caused solely by its employees or agents. Monell, 436 U.S. at 694. Rather, “a plaintiff must show the existence of an ‘official policy' or other governmental custom that not only causes but is the ‘moving force' behind the deprivation of constitutional rights.” Teesdale v. City of Chicago, 690 F.3d 829, 834 (7th Cir. 2012). Thus, ECHA can only be held liable where there is “(1) an express policy that causes a constitutional deprivation when enforced; (2) a widespread practice that is so permanent and well-settled that it constitutes a custom or practice; or (3) an allegation that the constitutional injury was caused by a person with final policymaking authority.” Id. at 834 (internal quotation marks and citation omitted).

         Here, ECHA argues that plaintiffs' pleadings regarding Monell liability amount to mere legal conclusions and “do not so much as hint at what ‘policy' they are referring to.” (DE # 112 at 14; DE # 116 at 6.) This is not true. Plaintiffs' third amended complaint alleges that ECHA had a policy or practice of deliberately concealing the dangers of contamination from the residents of the Complex, and that this policy or practice was the moving force behind the conduct of its employees that caused plaintiffs' harm. (DE # 98 at 6, 8.) Plaintiffs support this claim with factual allegations that ECHA was aware of the contamination at the Complex for more than 30 years, but the residents of the Complex were not notified of the contamination until 2016. (Id. at 7, 10.) At the pleading stage, this is sufficient to state a plausible claim for Monell liability.

         B. Count I: Substantive Due Process Claim against ECHA under the ...


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