USCA4 Appeal: 21-2059 Doc: 34 Filed: 01/19/2023 Pg: 1 of 20

PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 21-2059

DANIELLE WASHINGTON, Personal Representative of the Estate of Calvin Witherspoon Jr.,

Plaintiff - Appellant,

v.

HOUSING AUTHORITY OF THE CITY OF COLUMBIA, a/k/a Columbia Housing Authority, a/k/a Columbia Housing,

Defendant - Appellee.

Appeal from the United States District Court for the District of South Carolina, at Columbia. Joseph F. Anderson, Jr., Senior District Judge. (3:21-cv-00148-JFA)

Argued: October 27, 2022 Decided: January 19, 2023

Before GREGORY, Chief Judge, WYNN, Circuit Judge, and FLOYD, Senior Circuit Judge.

Reversed and remanded by published opinion. Judge Wynn wrote the opinion, in which Chief Judge Gregory and Senior Judge Floyd joined.

ARGUED: Richard Allan Hricik, LAW OFFICES OF RICHARD A. HRICIK, Mount Pleasant, South Carolina, for Appellant. Charles Franklin Turner, Jr., WILLSON JONES CARTER BAXLEY, P.A., Greenville, South Carolina, for Appellee. ON BRIEF: Amanda C. Dure, PANGIA LAW GROUP, Washington, D.C., for Appellant. USCA4 Appeal: 21-2059 Doc: 34 Filed: 01/19/2023 Pg: 2 of 20

WYNN, Circuit Judge:

This case arises out of the death of Calvin Witherspoon, Jr., who died of carbon

monoxide poisoning at his city-owned apartment in Columbia, South Carolina. Plaintiff

Danielle Washington, Witherspoon’s daughter and the personal representative of his estate,

appeals the district court’s dismissal of her complaint against the City of Columbia Housing

Authority (“Housing Authority”) for failure to state a claim upon which relief could be

granted. Because we conclude that Plaintiff has alleged sufficient facts to plead a § 1983

claim against the Housing Authority, we reverse and remand for further proceedings.

I.

We recount the facts as alleged in the complaint, accepting all well-pleaded factual

allegations as true. Owens v. Balt. City State’s Att’ys Off.,

(4th Cir.

2014).

On January 17, 2019, Witherspoon died of carbon monoxide poisoning in his

apartment at Allen Benedict Court Apartments, a housing complex owned and maintained

by the City of Columbia Housing Authority. The city police and fire chiefs concluded that

the cause of Witherspoon’s death was a faulty, thirty-year-old furnace that had caused

carbon monoxide to leak into his apartment, as well as several others.

The Housing Authority originally installed the gas-burning furnace in 1990 but had

never regularly inspected, tested, or maintained it. And ultimately, a build-up of debris

caused the furnace’s carbon monoxide venting to stop functioning. The problem went

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undetected because “carbon monoxide detectors [were] missing in all 244 units” of the

complex. J.A. 31. 1

In fact, Witherspoon wasn’t the only person to suffer the consequences that January

night. Another tenant, Derrick Roper, also died from carbon monoxide poisoning, and

several other tenants were hospitalized due to carbon monoxide exposure. Following the

incident, the entire apartment complex was evacuated, and all tenants were relocated.

The police and fire chiefs determined that Witherspoon’s death was entirely

preventable had the Housing Authority performed regular maintenance. Yet they found

that the Housing Authority had performed no preventative maintenance on appliances at

the complex, maintenance reports were inadequate or incomplete, and tenants who lived at

the apartments believed that “if they complained, things would not be fixed.” J.A. 30. The

Housing Authority only had a single inspector for all 2,600 of its housing units. And

ultimately, an inspection of the apartments revealed 869 code violations, ranging from

missing carbon monoxide detectors and faulty smoke detectors to exposed wires and

expired fire extinguishers. The fire chief found that several stoves were leaking natural gas,

presenting a “severe risk for the community and its occupants.” J.A. 31.

The Housing Authority was required by state and local law to install carbon

monoxide detectors in each unit. But none were found in any of the units at Allen Benedict

Court. The Housing Authority itself had recognized before Witherspoon’s death that a

missing carbon monoxide detector was a “life-threatening condition.” J.A. 29. And because

1 Citations to the “J.A.” refer to the parties’ Joint Appendix filed in this appeal.

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of that, in 2017—more than a year before Witherspoon’s death—the Housing Authority

adopted a “Life-Threatening Conditions” policy (“Policy 8-1.C”) for privately owned

properties, requiring that residents immediately install a carbon monoxide detector within

24 hours if one was missing or inoperable.

The policy also identified a heating system

with improper venting as a life-threatening condition because it “may cause improper or

dangerous venting of gas.”

Yet the Housing Authority “elected not to apply this policy

to its own properties,” including the apartments at Allen Benedict Court.

(emphasis

added).

In early 2021, Plaintiff sued the Housing Authority under

, alleging

that the Housing Authority violated Witherspoon’s Fourteenth Amendment substantive-

due-process rights, including his right to bodily integrity. And under Monell v. Department

of Social Services of City of New York,

(1978), she alleged that the Housing

Authority caused this constitutional violation by acting with deliberate indifference

through several policies and customs and by failing to train its employees.

Regarding her Monell claim, Plaintiff alleged that the Housing Authority elected to

apply Policy 8-1.C only to privately owned apartments, rather than to Allen Benedict Court

and the other low-income apartment complexes that the Housing Authority owned.

Additionally, she alleged that the Housing Authority had “an unofficial policy or custom

of willful neglect to the properties it owned by engaging in gross mismanagement of

resources and finances, insufficient budgeting, absence of oversight, and gross neglect of

maintenance, repair and capital improvements in its properties.” J.A. 21. She alleged that

this mismanagement was a conscious choice by the Housing Authority for financial gain:

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it led “the properties [to become] so dangerously unsafe and uninhabitable that they became

eligible for federal grants.”

Lastly, Plaintiff alleged that the Housing Authority’s

inadequate training and supervision of its employees regarding compliance with applicable

housing laws led to the violation of Witherspoon’s constitutional rights.

In response, the Housing Authority filed a motion to dismiss for failure to state a

claim, arguing that Plaintiff failed to allege conduct that was so arbitrary and egregious as

to shock the conscience and therefore amount to a constitutional violation. Additionally,

the Housing Authority contended that there was no causal nexus between its policies and

the alleged constitutional violation.

The district court agreed, concluding that Plaintiff’s allegations failed to show a

constitutional violation because the Housing Authority’s actions amounted to, at most, only

negligence, rather than deliberate indifference. The court also concluded that Plaintiff

failed to plead sufficient facts to establish causation because she “failed to allege facts

showing the alleged deficiencies made Witherspoon’s death bound to happen rather than

merely likely to happen.” Washington v. Hous. Auth. of City of Columbia, No. 3:21-cv-

00148-JFA,

, at *7 (D.S.C. Aug. 31, 2021). Plaintiff timely appealed.

II.

On appeal, we review de novo a district court’s dismissal of a complaint for failure

to state a claim. Starbuck v. Williamsburg James City Cnty. Sch. Bd.,

(4th Cir. 2022). In conducting this review, we accept all factual allegations as true and draw

all reasonable inferences in favor of the plaintiff. Singer v. Reali,

(4th

Cir. 2018).

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“[T]o survive a motion to dismiss under Rule 12(b)(6), a complaint need only allege

facts which, if true, ‘state a claim to relief that is plausible on its face.’” Owens,

(quoting Ashcroft v. Iqbal,

(2009)). As such, “[t]he recitation of

facts need not be particularly detailed, and the chance of success need not be particularly

high.”

(citing Iqbal,

; Bell Atl. Corp v. Twombly,

(2006)). And a plaintiff fails to meet this standard “only when he offers ‘labels and

conclusions’ or formulaically recites the elements of his § 1983 cause of action.” Id.

(quoting Iqbal,

).

III.

“When a § 1983 claim is asserted against a municipality,” as here, 2 we must answer

two questions: “(1) whether plaintiff’s harm was caused by a constitutional violation, and

(2) if so, whether the city is responsible for that violation.” Covenant Media of S.C., L.L.C.

v. City of N. Charleston,

(4th Cir. 2007) (quoting Collins v. City of

Harker Heights,

(1992)). We consider these questions in turn.

A.

To prove a violation of substantive-due-process rights under the Fourteenth

Amendment, a plaintiff must show that a defendant’s behavior was “so egregious, so

2 The Columbia Housing Authority is authorized by

et seq., and “was created by and for the City of Columbia . . . for the purpose of providing decent, safe and sanitary housing to the low and moderate-income residents of the City of Columbia.” J.A. 20. As a local governing body, the Housing Authority can be sued for monetary, declaratory, or injunctive relief for depriving a plaintiff of constitutional or civil rights. See Monell,

; Hayes v. Poe Homes Hous. Project Mgmt.,

(4th Cir. 1991) (unpublished table decision).

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outrageous, that it may fairly be said to shock the contemporary conscience.” Dean ex rel.

Harkness v. McKinney,

(4th Cir. 2020) (quoting Terrell v. Larson,

, 978 (8th Cir. 2005)), cert. denied,

(2021). To be conscience

shocking, a defendant’s behavior must lack “any reasonable justification in the service of

a legitimate governmental objective.” County of Sacramento v. Lewis,

(1998).

Although “the measure of what is conscience shocking is no calibrated yard stick,”

it does “‘poin[t] the way.’”

at 847 (quoting Johnson v. Glick,

(2d

Cir. 1973)). And to that end, the Supreme Court has “described a ‘culpability spectrum’

along which behavior may support a substantive due process claim.” Dean,

(quoting Lewis, 523 U.S. at 848–49).

On one end of the spectrum is “conduct intended to injure [that is] in some way

unjustifiable by any government interest.” Lewis,

. Such conduct most

likely rises to the conscience-shocking level.

On the other end is “negligently inflicted

harm [which] is categorically beneath the threshold of constitutional due process” conduct.

Id.; see also DeShaney v. Winnebago Cnty. Dep’t of Soc. Servs.,

(1989)

(“[T]he Fourteenth Amendment . . . does not transform every tort committed by a state

actor into a constitutional violation.”).

But conduct falling in between those two poles—deliberate-indifference conduct

which is more than negligence but less than intentional harm—presents a closer call.

“[D]eliberate indifference is ‘an intermediate level of culpability’ that can, if proven, also

establish a due process violation.” Dean,

(citing Lewis, 523 U.S. at 848–

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49). Ultimately, the applicable standard of culpability for a substantive-due-process

claim—either “intent to harm” or “deliberate indifference”—depends on “an exact analysis

of [the] context and circumstances” of the case.

; see also Lewis,

(“Rules of due process are not . . . subject to mechanical application in unfamiliar

territory.”).

Neither party disputes that deliberate indifference is the appropriate standard of

culpability here, and we agree. The deliberate-indifference standard “is sensibly employed

only when actual deliberation is practical,” Dean,

(quoting Lewis,

), so we must consider whether officials had time to “reflect on [their] actions,”

(quoting Browder v. City of Albuquerque,

(10th Cir. 2015)). We only

employ this standard of culpability where the official has the “luxury . . . of having time to

make unhurried judgments, upon the chance for repeated reflection, largely uncomplicated

by the pulls of competing obligations. When such extended opportunities to do better are

teamed with protracted failure even to care, indifference is truly shocking.”

(quoting

Lewis,

).

Still, as the Sixth Circuit has noted, time alone may not “transform any reckless

action from a tort to conscience-shocking behavior simply because the government actor

had time to appreciate any risk of harm.” Guertin v. Michigan,

(6th Cir.

2019) (quoting Range v. Douglas,

(6th Cir. 2014)). And other factors,

of course, could also be relevant to whether a defendant’s conduct is conscience-shocking,

such as “the type of harm” and “the level of risk of the harm occurring.”

(quoting Range,

).

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Here, deliberate indifference is the correct standard to measure the Housing

Authority’s conduct. Unlike cases involving emergency, split-second decisions, Plaintiff

alleges years of choices by the Housing Authority that led to the tragic circumstances of

this case. For example, throughout Witherspoon’s tenancy at Allen Benedict Court, where

he lived from 2012 until his death in 2019, the Housing Authority received requests from

tenants to repair conditions at the apartments—and we might infer a steady stream of

serious requests, too, based on the amount of code violations discovered after

Witherspoon’s death. Yet the Housing Authority chose not to respond to these complaints,

or at most took only half-measures to resolve them.

Additionally, the Housing Authority adopted a specific policy in 2017 to ensure that

missing carbon monoxide detectors, which it considered to be “life-threatening

conditions,” were installed in some (privately owned) properties. J.A. 29. But two years

later—and with time to reflect that such “life-threatening conditions” from carbon

monoxide threatened all of its properties—the Housing Authority had chosen not to apply

the same policy to its own housing. Thus, the facts alleged show there was ample time to

deliberate and reflect on those choices. Accordingly, deliberate indifference is the correct

standard to apply here.

Next, we consider whether the Housing Authority’s alleged conduct constitutes

deliberate indifference to Witherspoon’s life and safety. To prove deliberate indifference,

a plaintiff must show “that the [defendant] subjectively recognized a substantial risk of

harm and that his actions were inappropriate in light of the risk.” Dean,

.

“A defendant’s subjective knowledge of the risk may be inferred from circumstantial

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evidence.”

A plaintiff may also show subjective knowledge in a due-process claim

“from the very fact that the risk was obvious.” Parrish ex rel. Lee v. Cleveland,

(4th Cir. 2004) (quoting Farmer v. Brennan,

(1994)); see also

Porter v. Clarke,

(4th Cir. 2019) (“A plaintiff may satisfy this standard

by ‘prov[ing] by circumstantial evidence that a risk was so obvious that it had to have been

known.’” (quoting Makdessi v. Fields,

(4th Cir. 2015))), as amended

(May 6, 2019).

The Housing Authority argues that Plaintiff failed to allege that the Housing

Authority recognized the risk of carbon monoxide poisoning. Specifically, the Housing

Authority posits that without prior knowledge of past complaints relating to carbon

monoxide leaks or other similar dangerous conditions, it could not have known the danger

here. Response Br. at 5 (“[Plaintiff’s] Amended Complaint fails to allege or show that [the

Housing Authority] had any prior knowledge of the specific carbon monoxide toxicity nor

that any such incident regarding carbon monoxide resulted in any prior injury.”). We

disagree because our decision in Dean ex rel. Harkness v. McKinney dispels the Housing

Authority’s argument that a prior incident is necessary to show knowledge of a risk.

In Dean, this Court held that a reasonable jury could conclude that a police officer

acted with deliberate indifference when he accidentally struck a woman with his police

vehicle while speeding, causing her to sustain severe injuries. Dean,

.

Our decision turned on the evidence of the officer’s conduct on the night of the accident,

rather than evidence of any prior driving complaints or incidents. See

at 416–17. The

evidence showed that, on the night of the accident, the officer “knew that he was no longer

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responding to an emergency” and “understood that department policy and state law

required that he deactivate his emergency lights and siren and follow the speed limit.”

. Yet with several minutes to deliberate on his actions, the officer continued to drive

his vehicle more than thirty miles per hour over the speed limit “on a dark, curved road . . .

without his emergency lights and siren.”

This behavior, we held, was enough to be

conscience shocking.

.

Likewise here. Plaintiff has alleged enough facts at this early stage to establish that

the Housing Authority recognized the risk of carbon monoxide poisoning and acted

inappropriately in light of that risk.

To start, we note the unique nature of the risk in this case. Carbon monoxide is

dangerous because “it is colorless, odorless and tasteless,” hence why it is often called the

“silent killer.” J.A. 25. Its initial symptoms “appear like the flu,” and include unremarkable

symptoms like headache and fatigue. J.A. 26 n.2. Ultimately, carbon monoxide can be

lethal.

These allegations inevitably raise the question of whether the risk of not installing

carbon monoxide detectors is so obvious that we could infer the Housing Authority’s

subjective knowledge in this case. But no such inference is required here because Plaintiff

has plausibly alleged that, by enacting Policy 8-1.C, the Housing Authority expressly

acknowledged that a “[m]issing or inoperable carbon monoxide detector” or a gas heating

system with improper chimney venting constitute “life-threatening conditions.” J.A. 29.

That allegation shows that the Housing Authority subjectively understood that these risks

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applied not only to the residents of privately owned apartments covered by the policy, but

also to the tenants of apartments like Allen Benedict Court.

Similarly, in Castro v. County of Los Angeles, the Ninth Circuit, sitting en banc,

found substantial evidence that a county subjectively understood that its jail-cell design

might lead to a constitutional violation.

(9th Cir. 2016) (en banc).

There, the county had adopted by reference into its housing code several provisions from

the state building code, which specifically required monitoring systems in sobering cells.

. And the station manual for the county jail further mandated that sobering cells

allow for visual supervision.

When a pretrial detainee was attacked in a cell missing

those features, the court found the adoption of those provisions demonstrated subjective

knowledge: the county’s “affirmative adoption of regulations aimed at mitigating the risk

of serious injury to individuals housed in sobering cells” was proof that it knew the risk of

harm to the plaintiff.

The facts, as alleged here, look no different. By affirmatively adopting regulations

recognizing the life-threatening danger of missing carbon monoxide detectors, the Housing

Authority demonstrated that it knew the risk of harm that Witherspoon faced.

Additionally, the Housing Authority acknowledged in Policy 8-1.C the risk of

failing to maintain the venting system of a gas-burning furnace. Plaintiff alleged that, at

Allen Benedict Court, the Housing Authority did not “promptly and fully investigate[] and

remed[y] . . . [r]equests for repairs and maintenance, especially as to anything related to

the gas furnaces and venting.” J.A. 28 (emphasis added). The events of January 17, 2019,

demonstrate that these problems were not corrected. So the allegation that the Housing

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Authority received complaints about the furnace, but failed to act on them, leads to an

inference that the Housing Authority had subjective knowledge of a grave risk. That is,

either the Housing Authority did investigate the complaints, in which we might infer that

its employee saw the debris build-up and chose to do nothing; or it refused to inspect the

furnace entirely, in which case it chose to be willfully blind to a serious risk of harm. That,

too, plausibly alleges deliberate indifference. See Makdessi, 789 F.3d at 133–34 (holding

that a defendant will not avoid liability if he “refused to verify ‘underlying facts that he

strongly suspected to be true’ [or] ‘declined to confirm inferences of risk that he strongly

suspected to exist’” (quoting Brice v. Va. Beach Corr. Ctr.,

(4th Cir.

1995))).

Taken to its logical conclusion, the Housing Authority’s argument would amount to

a “one free death” card. Cf. Doe v. Fairfax Cnty. Sch. Bd.,

(4th Cir. 2021)

(Wynn, J., concurring in the denial of rehearing en banc) (rejecting the notion that schools

faced with lawsuits related to sexual assaults get “one free rape”). That’s because, where a

landlord fails to install carbon monoxide detectors or inspect a furnace, the most likely way

they will discover any dangerous emissions will be a person’s very serious illness or death.

As the Seventh Circuit has noted, “[t]hat no one in the past [was harmed] simply shows

that [the defendant] was fortunate, not that it wasn’t deliberately indifferent.” Woodward

v. Corr. Med. Servs. of Ill., Inc.,

(7th Cir. 2004) (stating that the

defendant “does not get a ‘one free suicide’ pass”). We reject such a theory here, where the

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Housing Authority’s conduct virtually ensured it would have no knowledge of dangerous

emissions from its furnaces until it was too late. 3

Next, we find that Plaintiff has also sufficiently pleaded that the Housing Authority

acted inappropriately in light of this risk. Specifically, the Housing Authority failed to

install a single carbon monoxide detector at Witherspoon’s 244-unit complex. It provided

no preventative maintenance of appliances. Instead, through its policies and practices, the

Housing Authority ensured that its property fell into a state of disrepair. Its repair request

system was so inadequate and incomplete that tenants believed that “if they complained,

things would not be fixed.” J.A. 30. And even if tenants were to complain, the Housing

Authority chose to understaff its maintenance personnel and inspectors, leaving its

employees ill-equipped to provide adequate maintenance. Indeed, the Housing Authority

had only a single inspector for 2,600 housing units.

All of these actions together gave rise to a potentially grave threat that could harm

the hundreds of low-income families that lived at Allen Benedict Court. And it did.

Ultimately, the entire complex was evacuated after two men died and several others were

sent to the hospital.

3 The Housing Authority passingly states at the end of its brief that Plaintiff’s allegations resemble a “state-created danger” claim. Response Br. at 24. But it posits that any such claim should be disposed of based on the same argument it already raises— namely, that the Housing Authority did not have subjective knowledge of a specific risk. For the reasons already stated, we disagree that Plaintiff did not adequately plead subjective knowledge. Furthermore, we don’t read the Housing Authority to be arguing whether Plaintiff’s claims are actionable at all under DeShaney v. Winnebago County Department of Social Services,

. To the extent it raises that issue, we find Plaintiff’s allegations sufficient at this stage.

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Critically, too, Plaintiff alleged this policy of willful neglect in the apartment’s

maintenance was a conscious choice by the Housing Authority. By engaging in a pattern

of mismanagement and poor maintenance, the Housing Authority allegedly hoped to allow

its properties to become “so dangerously unsafe and uninhabitable that they became

eligible for federal grants,” such as the HOPE VI grant. J.A. 21–22. On five different

occasions, the Housing Authority applied for such federal grants in efforts “to find funds

for the demolition and revitalization of the Allen Benedict Court Apartments.” J.A. 23.

Such blatant disregard for tenant safety in order to obtain federal funding, if proven to be

true, would be conscience shocking, as it lacks any “reasonable justification in the service

of a legitimate governmental objective.” Lewis,

; see also Guertin,

(holding, in the context of the Flint, Michigan, water crisis, that “jealously guarding

the public’s purse cannot, under any circumstances, justify the yearlong contamination of

an entire community”).

At bottom, the facts alleged in this case shock the conscience: a public housing

authority’s deliberate indifference to a risk of harm that threatened numerous families

living in low-income housing. What is more, two men died because of that indifference,

several more were hospitalized, and an entire community was evacuated. Substantive due

process exists as the “last line of defense” against such official abuses of power that are so

arbitrary as to shock the conscience of the court. Hall v. Tawney,

(4th

Cir. 1980).

These grave facts are surely even more egregious than those in Dean—accordingly,

we find that Plaintiff’s complaint sufficiently alleges that the Housing Authority acted with

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deliberate indifference to Witherspoon’s bodily integrity, thereby violating his substantive-

due-process rights.

B.

We next examine whether Plaintiff has pleaded facts adequate to show that this

constitutional violation is attributable to the Housing Authority. To hold a municipality

responsible for a constitutional violation under Monell, a plaintiff must show that the

municipality’s policies were “the ‘moving force’ behind a deprivation of federal rights.”

Carter v. Morris,

(4th Cir. 1999) (quoting Monell,

).

This requires a plaintiff to “demonstrate a direct causal link between the municipal action

and the deprivation of federal rights.” Bd. of Cnty. Comm’rs of Bryan Cnty. v. Brown,

(1997). “[T]he municipality itself, through one of its policies or customs,”

must “cause[] the constitutional violation; municipal liability cannot be premised on

respondeat superior or vicarious liability.” Buffington v. Baltimore County,

(4th Cir. 1990); see also Estate of Jones v. City of Martinsburg,

, 672 (4th

Cir. 2020), as amended (June 10, 2020). Accordingly, a “rigorous” causation standard

“must be applied to ensure that the municipality is not held liable solely for the actions of

its employee[s].” Carter,

(quoting Brown,

).

Establishing causation requires a plaintiff to first identify a specific deficiency in a

policy. See Spell v. McDaniel,

(4th Cir. 1987). “[S]cattershot”

allegations of “past generalized bad [municipal] behavior” causing “future generalized bad

[municipal] behavior” are insufficient to establish causation. Carter, 164 F.3d at 218–19;

see Spell,

(requiring “a specific deficiency rather than general laxness or

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ineffectiveness”); see also Buffington,

(“It will not ‘suffice to prove that

an injury or accident could have been avoided if an officer had had better or more training,

sufficient to equip him to avoid the particular injury-causing conduct.’” (quoting City of

Canton v. Harris,

(1989))). In other words, a plaintiff must identify a

“specific deficiency” and establish that deficiency’s causal connection to “the specific

violation.” Carter,

(quoting Spell,

).

The Housing Authority asserts that Plaintiff fails to “adhere to the specificity

require[ment]” for causation under Monell. Response Br. at 10. In particular, the Housing

Authority claims that Plaintiff “wad[es] into collateral accusations of marginally related

incidents and ‘splatter-paint[s] a picture of scattered violations’ in the effort to plead the

requisite threshold for a specific harm to a specific individual.”

at 11 (quoting Carter,

).

We disagree with the Housing Authority’s assessment. Although Plaintiff’s

complaint does contain allegations that the Housing Authority has violated state and local

law and incurred hundreds of housing code violations, it also identifies specific policies

that are distinct from those “scattered violations.” Plaintiff’s complaint alleged that the

Housing Authority elected to apply Policy 8-1.C only to privately owned apartments,

understaffed its inspectors and personnel, operated a non-uniform repair system, adopted a

“custom of willful neglect” to obtain federal grants, J.A. 21, and failed to train and

supervise its employees in complying with applicable housing laws. These are specific

deficiencies in the Housing Authority’s procedures, practices, and training programs,

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which go further than allegations of “past generalized bad [municipal] behavior.” Carter,

.

Nonetheless, identifying a specific deficiency in a policy is not enough to impose

municipal liability; a plaintiff must also establish “a sufficiently close causal link” between

that deficiency and the constitutional injury. Spell,

. A plaintiff must show

that the deficiency is “closely related to the injury complained of” and “that the injury

would have been avoided ‘under a program that was not deficient in the identified

respect.’” Gordon v. Kidd,

(4th Cir. 1992) (quoting Harris,

), as amended (July 7, 1992). In other words, a plaintiff must assess whether a

correction of the deficiency would have averted the specific violation. See Buffington, 913

F.2d at 122–23.

This Court’s decision in Owens v. Baltimore City State’s Attorneys Office is

instructive. See Owens, 767 F.3d at 402–04. In that case, the plaintiff alleged that the

Baltimore City Police Department violated his constitutional rights by maintaining a

custom of “condoning its officers’ conduct in ‘knowingly, consciously, and repeatedly

with[holding] and suppress[ing]’ exculpatory evidence.” See

. To support his

claim, the plaintiff alleged that “reported and unreported cases” and “numerous ‘successful

motions’” evidenced the police department’s custom of suppressing exculpatory evidence.

. This Court held that these allegations were sufficient to survive a motion to

dismiss.

. In reaching this conclusion, we emphasized that a litigant must do

“more” than allege “a municipality’s adherence to an impermissible custom.”

.

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And there, “[the plaintiff] ha[d] done more”—he “alleged facts . . . which, if true, would

buttress his legal conclusion.”

Like Owens, Plaintiff “has done more” than allege the mere existence of an

“impermissible” municipal custom.

Rather, Plaintiff has alleged “brief, but non-

conclusory, allegations” containing facts “which, if true, would buttress h[er] legal

conclusion.”

Accepting all well-pleaded factual allegations as true, Plaintiff’s complaint

sufficiently alleges that the constitutional injury—Witherspoon’s death by carbon

monoxide poisoning resulting from a faulty furnace—“would have been avoided ‘under a

program that was not deficient in the identified respect[s].’” Gordon,

(quoting Harris,

).

Had the Housing Authority elected to apply Policy 8-1.C to Allen Benedict Court,

a missing carbon monoxide detector and a faulty furnace would have been considered life-

threatening conditions requiring immediate attention within twenty-four hours. It’s

plausible, then, that these particular “life-threatening conditions” would have been

remedied: Witherspoon’s detector would have sounded the alarm on the night of January

17, 2019, or the gas-burning furnace would have safely vented the carbon monoxide out of

his apartment. In either case, Witherspoon’s death “would have been” averted. Id. at 1097.

Similarly, if the Housing Authority had properly staffed inspectors and personnel,

operated a uniform repair system, and trained and supervised its employees to comply with

applicable housing laws, it is plausible that its employees would have been well-equipped

to fix the maintenance issues at the apartments. In fact, Plaintiff alleged that at least one

Housing Authority employee complained that he was not trained about carbon monoxide

19 USCA4 Appeal: 21-2059 Doc: 34 Filed: 01/19/2023 Pg: 20 of 20

detector requirements. Thus, it appears plausible that had he and other employees been

appropriately trained, they would have known to install carbon monoxide detectors, as was

required by state and local law. Under such a program, Witherspoon would have had the

benefit of a carbon monoxide detector in his apartment, and many of the leaking, gas-

burning appliances in Allen Benedict Court would have been repaired.

In sum, at this early stage, Plaintiff has alleged sufficient facts to establish that the

Housing Authority’s policies and customs were the moving force behind the constitutional

injury.

IV.

For the foregoing reasons, we reverse the district court’s dismissal of Plaintiff’s

complaint. We remand for further proceedings consistent with this opinion.

REVERSED AND REMANDED

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