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Walker v. City of Wilmington

Court of Chancery of Delaware

September 5, 2014


Submitted: July 10, 2014

Russell E. Walker, Pro Se Plaintiff.

Daniel F. McAllister, Esq., Rosamaria Tassone-DiNardo, Esq., CITY OF WILMINGTON LAW DEPARTMENT, Wilmington, Delaware; Attorneys for Defendant City of Wilmington.


PARSONS, Vice Chancellor.

This matter arises out of the condemnation of a group home by Defendant, City of Wilmington (the "City"). The home is located at 1028 West Third Street (the "Home"). Disabled Disadvantaged Delawareans Foundation ("3D") owns the Home, but it is not a party to this case. Plaintiff, Russell E. Walker, is the mortgagee[1] and operator of the Home, which provides residence for adults with various disabilities. Walker claims that the City incorrectly cited him for violating certain Wilmington City Code ("Code") provisions and enforced the Code against him in a manner that violated the Delaware Fair Housing Act ("DFHA").[2] Walker commenced this action to challenge the City's condemnation of the Home.[3]

This case is before the Court on the City's motion to dismiss. The motion seeks to dismiss the Complaint on three grounds: (1) that Walker lacks standing to pursue certain claims; (2) that this Court lacks subject matter jurisdiction over Plaintiffs claims because he has an adequate remedy at law; and (3) that Walker failed to state a claim under the DFHA upon which relief can be granted. The City also contends that, even if Plaintiff has standing to pursue his claims, those claims must be dismissed because the relief sought is moot. Finally, the City argues that Walker's opposition to Defendant's motion to dismiss impermissibly seeks to amend his Complaint. Walker, who is representing himself, filed a written opposition to the motion to dismiss and addressed the Court during argument on that motion.

For the reasons stated in this Memorandum Opinion, I conclude that Walker has standing to pursue his claims and that his Complaint should be treated as amended by the relevant portions of his opposition.[4] I also have determined that this Court does not have subject matter jurisdiction over Count I of Plaintiffs Complaint that he was cited incorrectly for violating the Code. In addition, I find that Walker has failed to state a claim for which relief can be granted as to his claims in Count II under the DFHA and, therefore, dismiss that aspect of his Complaint. Thus, Defendant's motion to dismiss is granted.


A. Facts

Chapter 34 of the Wilmington City Code, entitled the "Housing Code, " sets forth the minimum property maintenance standards for all dwellings used for purposes of "living, sleeping, cooking or eating therein."[6] The Wilmington Department of License and Inspection ("L&I") administers and enforces the Code.[7]L&I conducts inspections, responds to citizen complaints, and enforces the Code in various ways, including through the imposition of fines and condemnation of dwellings as unfit for human habitation.[8]

On October 10, 2011, L&I inspected the Home and discovered several violations of the Code. Specifically, L&I reported finding the following violations, among others:

§ 34-234: Faulty heating facilities, authorized heater inspection required (general interior)
§ 34-234: Must obtain inspection of heating system by L&I § 34-235: Discontinue use of room for sleeping purpose (kitchen/pantry)
§ 34-235: Discontinue use of room for sleeping purpose (living room)
§ 34-236: Replace/Repair loose ceiling and/or wall plaster (kitchen/pantry)
§ 34-266: Must obtain authorized licensed plumbing inspection (general interior)
§ 13-40: Remove source of the noxious odor (bedroom 1)
§ 34-235: Discontinue use causing overcrowded condition (general interior)
§ 34-236: Point wall(s) and/or replace missing masonry (exterior)[9]

Pursuant to its responsibility to enforce and administer the Code, L&I condemned the Home (the "October Order"), specified time limits for repairs, and described the available appeal rights.[10] In particular, the October Order[11] stated that a property owner may appeal an order and that an appeal must be filed with L&I within ten business days of receipt of an order or notice.[12] The order also indicated that if an owner filed an appeal, a hearing would be scheduled before the Board of Licenses and Inspections Review ("L&I review board").[13] Walker did not appeal the October Order to L&I. There also is no evidence that Walker remedied the violations within the time periods specified in the October Order.[14]

1. Ongoing violations

Despite the October Order, Walker continued to use the Home as a residence for disabled individuals. According to the Complaint, the City knew about the continued use. One of the ongoing violations, a blocked fire exit door, resulted from the actions of a resident of the Home, Roxanne Kennedy.[15] The Complaint also alleges that, on May 22, 2013, Kennedy removed the smoke detectors and called the Wilmington Fire Department to complain about the Home.

2. May evacuation

Following the call from Kennedy, the Wilmington Fire Department inspected the Home and discovered several violations of the Code. In particular, the inspection found:

(1) Path of egress doors cannot be bolt locked;
(2) Extinguishers not properly tagged and inspected;
(3) Electrical inspection needs to have an inspection and tag;
(4) House-keeping needs to be addressed;
(5) Smoke detection throughout the property needs to be addressed.[16]

As previously noted, as of May 22, 2013, Walker had not repaired the violations noted in the October Order and, despite the condemnation of the Home, he continued to use it as a residence for disabled individuals. Hence, on May 22, 2013, L&I and the Wilmington Fire Department evacuated and boarded up the Home citing multiple ongoing code violations ("May Evacuation").[17]

B. Procedural History

Walker filed his initial complaint in this action on May 30, 2013.[18] The City filed its Motion to Dismiss pursuant to Rules 12(b)(1) and (12)(b)(6) on July 19, 2013. Walker filed his amended complaint on July 29, 2013. Shortly thereafter, the City indicated that its motion would apply equally to the amended ...

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