ORDER AND REASONS

STANWOOD DUVAL, District Judge

Before the Court are a Motion to Dismiss filed by the State of Louisiana. Department of Health and Hospitals ("DHH") and Governor Foster (Doc. 29), a Motion to Dismiss Plaintiffs' Complaint filed by the United States Department of Housing and Urban Development, Michael Liu, Assistant Secretary for Public and Indian Housing, and the United States Department of Health and Human Services, through Tommy G. Thompson, Secretary (Doc. 33), a Motion by the City of New Orleans and Mayor C. Ray Nagin to Dismiss for Failure to State a Claim upon which Relief Can be Granted and for Lack of Subject Matter Jurisdiction, Alternatively for More Definitive Statement (Doc. 28), and a Motion to Dismiss, or in the Alternative for a More Definite Statement filed by Housing Authority of New Orleans ("HANO"), Mr. Carmen F. Valenti, Ms. Cathering Lambert and Ms. Cynthia Wiggins (Doc. 30). Having reviewed the pleadings, memoranda and the relevant law, the Court finds as follows.

Background

In essence, plaintiff's contend that their constitutional, human and civil rights have been violated by:

1) HANO/HUD for renting units, selling units and operating a public housing business on a waste site;

2) the Department of Health and Human Services/Agency for Toxic Substances and Disease Registry, the State of Louisiana Department of Health and Human Services and the City of New Orleans Department of Health and Human Services.' Code enforcement for permitting HANO/HUD to operate on this waste site in Christopher Park Homes; and

3) DHHS/ATSDR not allowing Christopher Park Home tenants to be a part of the population in the United States of America who receives the benefits of their missions.

These allegations arise out of the plaintiff's' contentions concerning the living conditions at Christopher Park Home resulting form a lack of proper sewerage pipes which allows sewerage to back up into the tenants' apartments. There are vague allegations of "retaliation" for having reporter this situation. Plaintiffs ask the Court for the following relief:

To help us live in a clean sanitary environment by enforcing the Housing Code and Order HANO/HUD to relocate the tenants of Christopher Park Homes off of this "waste site." Ordering that it be HANO/HUD Responsibility to do so We the tenants of Christopher Park Home so named in tins petition also asked for damages for psychological trauma, Anxiety, physical problem such as respiratory problem, rashes, fever of unknown causes (because the physicians treating us don't know we live upon a "waste site," the sum of $50,0000 (fifty thousand dollars) or the equivalent of the market price for home in the New Orleans area.

(Complaint p. 5)

Standard of Review

Nonetheless, while plaintiff's have not cited to 42 U.S.C. § 1983, from a broad reading of the complaint, the allegations might be construed as having been brought pursuant thereto. Indeed, this is the primary vehicle for bringing constitutional claims against local governments and officials. Lee v. Morial, 2000 WL 726882 (E.D. La. June 2, 2000). "This section contemplates recovery of compensatory damages, as well as equitable relief, against a local government official for the harm that he inflicts because of his constitutional violations, subject to any personal immunities of the officer. And such damages are also available against a local government when its officer has carried out official policy. See Monell v. Department of Social Services, 436 U.S. 658 (1978).

"[N]everless, the complaint must allege sufficient facts from which the court can determine the existence of subject matter jurisdiction and from which the defendants can fairly appreciate the claim made against them."Bremer v. Housing Authority of New Orleans, 1999 WL 29S795 (E.D. La. May 12, 1999). "Some facts must be alleged that convince the court that the plaintiff has at least a colorable claim. Conclusory allegations will not suffice." Mills v. Criminal Dist. Court #3, 837 F.2d 677, 678 (5th Cir. 1988). Indeed, in the context of a section 1983 complaint, specific facts must be plead and a cognizable constitutional violation must be alleged in order to avoid dismissal for failure to state a claim. Id.

Rule 12(b)(1) of the Federal Rules of Civil Procedure allows a party to challenge the subject matter jurisdiction of the district court to hear a case. The burden of proof for a Rule 12(b)(1) motion is on the party asserting jurisdiction. Ramming v. United States, 281 F.3d 158 (5th Cir. 2001). As the Fifth Circuit has stated:

When a Rule 12(b)(1) motion is filed in conjunction with other Rule 12 motions, the court should consider the Rule 12(b)(1) jurisdictional attack before addressing any attack on the merits. Hitt v. City of Pasadena, 561 F.2d 606, 60S (5th Cir. 1977) (per curiam). This requirement prevents a court without jurisdiction from prematurely dismissing a case with prejudice. Id. The court's dismissal of a plaintiff's case because the plaintiff lacks subject matter jurisdiction is not a determination of the merits and does not prevent the plaintiff from pursing a claim in a court that does have jurisdiction. Id.

A motion to dismiss for lack of subject matter jurisdiction should be granted only if it appears certain that the plaintiff cannot prove any set of facts in support of his claim that would entitle plaintiff to relief. Home Builders Ass'n of Miss., Inc. v. City of Madison, Miss, 143 F.3d 1006 1010 (5th Cir. 1998).

When a defendant attacks the complaint because it fails to state a legally cognizable claim, Rule 12(b)(6) provides the appropriate challenge. The test for determining the sufficiency of a complaint under Rule 12(b)(6) is that "a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Id. citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957). The Fifth Circuit explained:

Subsumed within the rigorous standard of the Conley test is the requirement that the plaintiff's complaint he stated with enough clarity to enable a court or an opposing party to determine whether a claim is sufficiently alleged. Elliott v. Foufas, 867 F.2d 877, 880 (5th Cir. 1989). Further, "the plaintiff's complaint is to be construed in a light most favorable to plaintiff, and the allegations contained therein are to be taken as true." Oppenheimer v. Prudential Securities, Inc. 94 F.3d 189, 194 (5th Cir. 1996). This is consistent with the well-established policy that the plaintiff be given every opportunity to state a claim. Hitt, 561 F.2d at 608. In other words, a motion to dismiss an action for failure to state a claim "admits the facts alleged in the complaint, but challenges plaintiff's rights to relief based upon those facts." Tel-Phonic Servs., Inc. v. TBS Int'l, Inc., 975 F.2d 1134, 1137 (5th cir. 1992). Finally, when considering a Rule 12(b)(6) motion to dismiss for failure to state a claim, the district court must examine the complaint to determine whether the allegations provide relief on any possible theory. Cinel v. Connick, 15 F.3d 1338, 1341 (5th Cir. 1994).

Motion to Dismiss filed by State of Louisiana, DHH and Governor Mike Foster

The State of Louisiana, the DHH and Governor Mike Foster ("the State defendants") move the Court to dismiss this suit against them pursuant to Fed.R. CIV. P. 12(b)(1) for lack of subject matter jurisdiction and Fed. CIV. P. 12(b)(6). The State defendants note that there are no allegations that either Governor Foster or the DHH own or operate the premises. There are no allegations that the plaintiff ever complained to Governor Foster or the DHH regarding their sewerage problems.

However, the most salient fact is that Governor Foster, as an individual in his official capacity, and the DHH, as a state agency, are protected from suit by the doctrine of sovereign immunity as found in the Eleventh Amendment of the Constitution. By statute, the State of Louisiana has not waived its sovereign immunity for suits brought in federal court based on violations of "constitutional, civil and human rights." Richardson v. Southern University, 118 F.3d 450, 453 (5th Cir. 1997) La. Rev. Stat. 13:5106(A).

As such, a suit in federal court in which a state or one of its agencies or departments is named as defendant is proscribed by the Eleventh Amendment. Likewise, suit is barred as to a State official.Pennhurst State School Hosp. v. Haldeman, 104 S.Ct. 900 (1984); Helire v. Foti, 1991 WL 155379 (E.D. La. Nov. 19, 1991). Thus, this Court lacks subject matter jurisdiction and these claims are properly dismissed pursuant to Rule 12(b)(1). Wright Miller, Federal Practice and Procedure, § 1350 at 195-196 (1990). Accordingly, this motion must be granted.

Motion to Dismiss Plaintiffs' Complaint filed by the United States Department of Housing and Urban Development, Michael Liu, Assistant Secretary for Public and Indian Housing, and the United States Department of Health and Human Services, through Tommy G. Thompson, Secretary (Doc. 33)

The Court will now turn to the Motion to Dismiss Plaintiffs' Complaint filed by the United States Department of Housing and Urban Development ("HUD"), Michael Liu, Assistant Secretary for Public and Indian Housing ("Liu") and the United States Department of Health and Human Services, through Tommy G. Thompson ("Thompson") (referred to collectively as the "United States defendants"). The United States defendants maintain that the Court does not possess subject matter jurisdiction over them and seek dismissal pursuant to Fed.R. CIV. P. 12(b)(1).

Plaintiffs oppose the motion contending that there is a cause of action under the criminal statute 18 U.S.C. § 241, Conspiracy Against Rights. As this statute provides for the United States to criminally prosecute individuals for criminal activity, it does not provide a private right of action for plaintiff's. Plaintiffs then contend that their rights under the Fourteenth Amendment have been violated because they complained to HUD and Assistant Secretary Michael Liu assistants that the health violations existed and nothing was done.

It appears to the Court that there simply is no cause of action clearly stated over which the Court has jurisdiction. Incompetency or failure to act in this instance does not create a claim. Nonetheless, giving this Complaint the broadest possible reading as required when dealing with a pro se complaint, it might be construed as a Bivens claim. Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999 (1971). There, the Supreme Court held, as a general proposition, that victims of a constitutional violation perpetrated by a federal actor may sue the individual offender for damages in federal court despite the absence of explicit statutory authorization for such suits. Oladipupo v. Austin, 104 F. Supp.2d 623, 624 n. 2 (W.D. La. 2000).

It is well settled that a Bivens claim for monetary damages is available only against government officers in their individual capacities. See FDIC V. Meyer, 510 U.S. 471, 484-87, 114 S. ct. 996, 1005-06, 127 L.Ed.2d 308 (1994); Enplanar, Inc. v. Marsh, 11 F.3d 1284, 1294 n. 12 (5th cir. 1994). A suit against a federal official in his or her official capacity is a suit against the United States. See Kentucky v. Graham, 473 U.S. 159, 166, 105 So. Ct. 3099, 3105, 87 L.Ed.2d 114 (1935). ("[A] plaintiff seeking to recover on a damages judgment in an official-capacity suit must look to the government entity itself.") The United States has sovereign immunity except where it consents to be sued. . . . Consent is a prerequisite for jurisdiction . . . The United States has not waived sovereign immunity in a Bivens suit for monetary damages or injunctive relief. . . .

Motion by the City of New Orleans and Mayor C. Ray Nagin to Dismiss for Failure to State a Claim upon which Relief Can be Granted and for Lack of Subject Matter Jurisdiction, Alternatively for More Definitive Statement

The City of New Orleans/Health and Code Enforcement ("the City") and Mayor C. Ray Nagin ("Nagin") have also moved the Court pursuant to Fed.R. CIV. P. 12(b)(1) because the enforcement or non-enforcement of the Housing Code of the City of New Orleans is a discretionary' function of the City and as such plaintiff's' claim is barred by sovereign immunity; there is no violation of federal law or a persons' civil rights triggered by enforcement of the City's Housing Code, and the allegations do not comply with Fed.R. CIV. P. 8(a)(1) as there is no plainly stated grounds to support the Court's jurisdiction. In addition, the City and the Mayor invoke Fed.R. CIV. Pro. 12(b)(6) to dismiss the instant complaint because it does not meet the heightened pleading requirements for a claim for violation of plaintiff's' civil rights. In the alternative, they seek an order requiring plaintiff's to furnish a more definitive statement of their claim as required by Fed R. Civ P. 12(e).

Plaintiffs oppose the motion contending that the Court has federal jurisdiction pursuant to 18 U.S.C. § 241 and the Fourteenth Amendment, the same grounds raised as to the United States defendants. Thus, with respect to the 18 U.S.C. § 241 claim, that statute is a criminal statute making it unlawful to conspire to deprive someone of their civil rights. Plaintiffs cannot bring a criminal action, nor can a private right of action be derived therefrom. In addition, in order to present a prima facie case of discrimination under the Equal Protection Clause of the Fourteenth Amendment the plaintiff must prove 1) state action, 2) that he is a member of a protected class, and 3) discriminatory intent. See Washington v. Davis, 426 U.S. 229, 239 (1976). As noted, in the complaint, there no invocation of the Fourteenth Amendment and indeed, the only mention of race, is in a single sentence in plaintiff's' memorandum in opposition which states after describing the conditions that brought plaintiff's to file suit, "Did this happen because they the tenants in Christopher Park Home were poor, black and mostly uneducated people who These government's agencies felt that no one would believe." (Memo in Opposition, p. 6). Indeed, there is no allegation as to the race of any of the plaintiff's. As such, a strictly constitutional claim is not stated.

Construing this claim as one brought under 42 U.S.C. § 1983, in order to establish a prima facie case under § 1983, plaintiff's must allege either a constitutional violation or a violation of a federal statutory right. See 1 Sheldon H. Nahmod, Civil Rights and Civil Liberties Litigation: The Law of Section 1983 , 56 (3d ed. 1991). As this Court has previously noted:

If the plaintiff alleges a violation of a constitutional right, the plaintiff must prove that the defendant's conduct was the cause of the constitutional deprivation. The plaintiff may allege violation of the Fourteenth Amendment, procedural due process or equal protection, as well as other violations of provisions in the Bill of Rights that apply to the states. Id. at 56-57. If the plaintiff alleges a violation of a federal statutory right, he or she must also prove that the defendant's conduct was the cause of this statutory deprivation. Id. at 57. Regardless of whether a plaintiff alleges a constitutional or statutory deprivation, or both, he or she must demonstrate that the challenged conduct was undertaken "under color of state law;" meaning that the individuals acted in an official capacity and in a manner authorized by state law.

As to the claim against Mayor Nagin, it is apparently brought against him in his official capacity in that plaintiff's have not made any factual allegations against him that would trigger suit in his personal capacity. Thus, a suit against a government official in his official capacity is treated as a suit against the entity-here the City of New Orleans. See Lee 2000 WL 726882 at *2. Thus, the analysis is the same for both the City and the Mayor.

First, no liability exists for governmental entities based on a vicarious liability or respondeat superior theory. Id. citing Board of the County Commissioners of Brayan County v. Brown, 520 U.S. 397 (1997). Instead the municipality will be liable only when an official policy or custom inflicts the injury of which the plaintiff complains. Judge Sear in Lee succinctly stated:

To show an unconstitutional policy or custom, the plaintiff must (1) identify the policy or custom, (2) connect the policy or custom with the government entity itself, and (3) show that the particular injury was incurred because of the execution of that policy. Bennett v. City of Slidell, 728 F.2d 762, 767 (5th Cir. 1984) (en banc). The Fifth Circuit defines an official policy as "a policy statement, ordinance, regulation, or decision that is officially adopted and promulgated by the municipality's lawmaking officers or by an official to whom the lawmakers have delegated policy-making authority." Johnson v. Moore, 958 F.2d 92, 94 (5th Cir. 1992). Although the Supreme Court has recognized that even a single decision by a final policymaker may represent official policy, see Penbaur v. Cincinnati, 475 U.S. 469, 483-84 (1986), the Court has emphasized that only the decision of officials possessing " final policy making authority" represent official policy. See Jett v. Dallas Ind. School Dist., 491 U.S. 701 (1989) (emphasis added).

The determination of whether a particular official has final policymaking authority with regard to the conduct at issue is a legal question controlled by state or local law. Id. at 737 . . . The final policy maker is the official or body upon whom stare or local law has conferred the power to adopt rules governing the conduct of the governmental entity's employees; merely granting an employee some discretionary authority does not make the employee a final policy maker.

While plaintiff's have not alleged specific customs or policies of The City or The Mayor that demonstrate a constitutional violation based on race, the Court has found a line of cases where constitutional violations of the Fourteenth Amendment were found where municipal services where provided on a discriminator)' basis. United Farmworkers of Florida Housing Project, Inc. v. City of Delray Beach, 493 F.2d 799 (5th Cir. 1974); Hawkins v. Town of Shaw, 437 F.2d 12S6 (5th Cir. 1971); Dowdell v. City of Apopka, 698 F.2d 1181 (5th Cir. 1983).

Rule 8(a) of the Federal Rules of Civil Procedure requires a plaintiff to set forth a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R. CIV. P. S(a). The purpose is to put a defendant on notice of the claim and to allow for an adequate response, see Charles A. Wright Arthur R. Miller,Federal Practice and Procedure, § 1202 (1991). Generally, the requirements of federal notice pleading are liberally construed and in a situation where the plaintiff proceeds pro se, this circuit has demonstrated a tradition of leniency. Gellegos v. Louisiana Code of Criminal Procedure Art. 658 , 858 F.2d 1091, 1092 (5th Cir. 1988). Even when a complaint by a pro se litigant is somewhat sketchy, it should not be dismissed unless it appears that the plaintiff (5th Cir. 1982). The test is whether "within the universe of theoretically provable facts, there exists a set which can support a cause of action under this complaint indulgently read." Covington v. Coles, 528 F.2d 1365, 1370 (5th Cir. 1976).

Applying this standard to the instant Complaint and Amended Complaint, the Court finds that it must allow plaintiff's to amend their complaint to allege constitutional deprivations by these defendants under the strictures of 42 U.S.C. § 1983. With respect to their claims against the City and the Mayor in his official capacity, plaintiff's must allege a "pattern or practice" on the pan of the City and the Mayor that deprives plaintiff's of a constitutionally protected right or some right under an applicable federal statute. While the Court is aware that the Supreme Court has rejected a heightened pleading standard for complaints alleging municipal liability, the essential elements of a § 1983 claim must be alleged and such allegations cannot be conclusory in nature. Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 167 (1993). In other words, the allegations must be more than mere conclusions of law.

Motion to Dismiss, or in the Alternative for a More Definite Statement filed by Housing Authority of New Orleans ("HANO"), Mr. Carmen F. Valenti, Ms. Catherine Lamberg and Ms. Cynthia Wiggins (Doc. 30)

The Court will next take up the motion of HANO, Mr. Carmen F. Valenti ("Valenti", Ms. Catherine Lamberg ("Lamberg") and Ms. Cynthia Wiggins ("Wiggins") (collectively the "HANO defendants") seeking dismissal of this suit as against them. They contend that there is no jurisdiction based on a federal law; no diversity of citizenship such that jurisdiction would lie on such grounds; based on a federal law; no diversity of citizenship such that jurisdiction would lie on such grounds, and that they enjoy sovereign immunity under the Eleventh Amendment as they are "arms of the state." As to the individuals Valenti, Lamberg and Wiggins, they contend that they are shielded from suit by qualified immunity as they were acting in their official capacity and did not violate any clearly established statutory or constitutional right of the plaintiff's.

Plaintiffs oppose the motion based on the exact same arguments as noted with respect to the City and the Mayor.

The analysis with respect to the City and the Mayor is equally applicable to the HANO defendants. As to HANO and the other individual defendants, should plaintiff's allege wrongdoing in their official capacity, then again, plaintiff's must allege with specificity the pattern or practice which constitutes a constitutional violation under 42 U.S.C. § 1983. In the event that plaintiff's seek damages from the individual defendants for actions done by them in their individual capacity, plaintiff's must allege that the official, acting under color of state law, caused the deprivation of a federal right. Hafer v. Melo, 502 U.S. 21, 25 (1991). Officials sued in their personal capacities. unlike those sued in official capacities, may assert personal immunity defenses such as objectively reasonable reliance on existing law or qualified immunity. Id.

As is required by Schultea v. Wood, 47 F.3d 1427, because a defense of qualified immunity has been raised, this Court will further order pursuant to Fed.R. CIV. P. 12(e) that in the event plaintiff's choose to pursue claims against the named defendants in their individual capacities, they must provide greater factual detail as to the alleged violations. Thus, plaintiff's must come forward with specific, nonconclusory factual allegations of improper motive and must state clearly the factual basis for the allegation that any defendant in his or her individual capacity violated a constitutional right that was clearly established at the time of the alleged violation. Accordingly,

IT IS ORDERED that the Motion to Dismiss filed by State of Louisiana, DHH and Governor Mike Foster (Doc. 29) is GRANTED.

IT IS FURTHER ORDERED that the Motion to Dismiss Plaintiffs' Complaint filed by the United States Department of Housing and Urban Development, Michael Liu, Assistant Secretary for Public and Indian Housing, and the United States Department of Health and Human Services, through Tommy G. Thompson. Secretary (Doc. 33) is GRANTED.

IT IS FURTHER ORDERED that the Motion by the City of New Orleans and Mayor C. Ray Nagin to Dismiss for Failure to State a Claim upon which Relief Can be Granted and for Lack of Subject Matter Jurisdiction, Alternatively for More Definitive Statement (Doc. 28), and a Motion to Dismiss, or in the Alternative for a More Definite Statement filed by Housing Authority of New Orleans ("HANO"), Mr. Carmen F. Valenti, Ms. Gathering Lambert and Ms. Cynthia Wiggins Doc 30) are DENIED respect to dismissal under Fed.R. CIV. P. 12(b)(1) and (6) without prejudice to be reurged after plaintiff's have filed their Second Amended Complaint, but GRANTED with respect to requiring a More Definitive Statement pursuant to Fed.R. CIV. P. 12(e). IT IS FURTHER ORDERED that such Second Amended Complaint shall contain all the particular pleading requirements with respect to the qualified immunity defense as discussed herein and shall be filed NO LATER THAN MARCH 15, 2004.