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Barber v. Rome Housing Authority

United States District Court, N.D. New York

March 30, 2018

JOHN W. BARBER, DEBRA L. BURTON, DAVID R. GRINNELL, TIMOTHY J. LEES, MARSHALL L. THOMAS, individually and on behalf of all persons who currently reside in Colonial II Apartments therein at any time from December 2013 to date, Plaintiffs,
ROME HOUSING AUTHORITY, JAMES BALDWIN, individually and as Executive Director of Rome Housing Authority, DARCEL PULEO, individually and as Property Manager of Colonial II Apartments, Defendants.


          LIPMAN LAW FIRM, P.C. JEFFREY M. LIPMAN, ESQ. Attorney for Plaintiffs.


          TOWNE, RYAN & PARTNERS P.C. JOHN W. LIGUORI, ESQ. MARK T. HOUSTON, ESQ. Attorneys for Defendants.


          Mae A. D'Agostino, U.S. District Judge.


         On December 23, 2016, Plaintiffs filed a putative class action complaint pursuant to Federal Rule of Civil Procedure 23 for injunctive and compensatory relief. Plaintiffs allege that the Rome Housing Authority ("RHA"), its Executive Director, James Baldwin, and the property manager of the Colonial II Apartments ("Colonial II" or the "Building" collectively "Defendants") are liable under 42 U.S.C. § 1983 and state law. See Dkt. No. 1 at ¶¶ 1, 59-84. On March 22, 2017, Plaintiffs filed an amended complaint. See Dkt. No. 24.

         Currently before the Court is Defendants' motion to dismiss. For the following reasons, the motion is granted.


         The Colonial II Apartments is a seven-story apartment building that caters to elderly and disabled adults and is owned and managed by RHA. See Dkt. No. 24 at ¶¶ 5, 10, 13. In 2008, Colonial II's residents began complaining to the Building's management that bed bugs were infesting their apartments. See Id. at ¶ 18. By 2013, Colonial II faced a severe infestation. See Id. That year, "Defendants hired a local, two-person extermination company, Rid-O-Vit, " to inspect and chemically treat the infestation unit-by-unit. Id. at ¶¶ 19, 41. The Building's residents "complained to Defendants that the inspections and spraying . . . were not eradicating the bed bug problem, and were spreading the problem to new apartments and other areas of the building." Id. at ¶ 20. Defendants continued to use Rid-O-Vit despite these complaints. See Id. at ¶ 21.

         According to the amended complaint, Defendants did not mention the infestation to prospective tenants or residents renewing their leases. Id. at ¶ 22. Further, Defendants did not mention the infestation in "resident meetings, notices, or other communications, " and told at least one resident to keep quiet about the bed bugs. Id. Some residents "complained about bed bugs within their apartments, but were told by Defendants that they were unable to find any. On [these] occasions, Defendants did not take any remedial actions despite [r]esidents complaining that they had identified bed bugs within their apartments and experienced bites from bed bugs." Id. at ¶ 24. Further, "Defendants . . . told one or more [r]esidents that they should refrain from visiting family and friends in other apartments within the building, or in homes or apartments outside the building, because of the risk of spreading bed bugs, or bringing bed bugs into the Colonial II building." Id. at ¶ 27.

         The infestation has been traumatic for the tenants. Some have had difficulty sleeping due to anxiety about being bitten, they risked infections and allergic reactions, and have been subjected to the general stigma associated with bed bugs. See Id. at ¶ 25. Some residents have left their homes to sleep in other places. See Id. at ¶ 26. Many residents have been anxious about spending time with their friends and family due to a fear of carrying the bed bugs with them. See Id. at ¶¶ 27-28. John W. Barber, Debra L. Burton, David R. Grinnell, Timothy J. Lees, and Marshall L. Thomas ("Plaintiffs") are tenants of Colonial II and represent the class of residents that have lived in Colonial II at any time after December, 2013. See Id. at ¶ 1. They allege that this infestation has resulted in significant hardship. See Id. at ¶ 47.

         Plaintiff Barber has lived in Colonial II since the early 1990s and was one of the first tenants to notice bed bugs in his apartment. See Id. at ¶¶ 48-49. RHA first treated his apartment for bed bugs in 2008, but the bed bugs eventually came back. See Id. at ¶ 49. The bed bugs have led Plaintiff Barber to suffer from bites, sleep deprivation, and anxiety. See Id. at ¶ 51. Additionally, the bed bugs have exacerbated Plaintiff Barber's preexisting physical and mental health conditions. See id.

         Plaintiff Burton moved into Colonial II in May 2016 after being told she would not need to worry about bed bugs because she was a "clean person." Dkt. No. 24 at ¶ 55. Plaintiff Burton first noticed bed bugs in her apartment two months later. See Id. at ¶ 56. Since July 2016, she has had her apartment sprayed six times. See Id. Plaintiff Burton asked Colonial II management for a building wide eradication instead of the unit-by-unit approach. See Id. at ¶ 58. Plaintiff Burton has spent money on chemical sprays and other cleaning supplies to fight the infestation and is withholding her rent due to the ongoing condition of her apartment and the need to purchase new furniture and chemicals to combat the infestation. See Id. at ¶ 59.

         Plaintiff Grinnell moved into Colonial II in June 2013. See Id. at ¶ 60. Approximately one-year later, he noticed bed bugs in his apartment. See Id. at ¶ 62. Defendants treated his unit, which temporarily eliminated the pests. See Id. at ¶¶ 62-63. However, in September 2016, the bed bugs returned and he has sprayed his unit monthly and at his own expense since their return. See Id. at ¶¶ 63-64. Plaintiff Grinnell also suffers from bites, sleep deprivation, and anxiety. See Id. at ¶ 64.

         Plaintiff Lees has resided in Colonial II since 2012. See Id. at ¶ 65. He first noticed the bed bugs in 2014. See Id. at ¶ 66. Since then, Defendants have sprayed his apartment approximately twenty times. See Id. "[Plaintiff] Lees has not visited family in over two years because of the fear that he would carry bed bugs into their homes, " which has led to him being socially isolated and depressed. Id. at ¶ 68. "He has experienced physical bites, sleep deprivation, and anxiety due to the bed bug infestation." Id. Living under these conditions has adversely affected his mental health treatment and recovery process. See Id. Plaintiff Lees spends his own money to spray his apartment on a monthly basis and has been forced to throw away furniture because of the infestation. See Id. at ¶¶ 67-68.

         Plaintiff Thomas has been living in Colonial II since 2004. See Id. at ¶ 69. She first noticed bed bugs in her apartment in 2012. See Id. at ¶ 70. Defendants have sprayed her apartment at least nine times. See Id. She has repeatedly had to throw out furniture due to the infestation. See Id. Plaintiff Thomas has spent money on sprays and cleaning supplies. See Id. at ΒΆ 72. She ...

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