United States District Court, N.D. Indiana, Hammond Division
OPINION AND ORDER
T. MOODY JUDGE
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.
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.
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.)
defendants have filed motions to dismiss. (DE # 101; DE #
111.) The motions are fully briefed and this matter is now
ripe for resolution.
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).
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.)
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).
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.
Count I: Substantive Due Process Claim against ECHA under the