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CULVER v. UNITED STATES DEPT. OF LABOR OCCUPATIONAL SAFETY

June 20, 2005.

JAMES L. CULVER, D/B/A, THE EIFS GUY, Plaintiff,
v.
UNITED STATES DEPARTMENT OF LABOR OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION; RUSSELL WHITE, an individual; ANDREW J. HEDESH, an individual and DOES 1 through 10, inclusive, Defendants.



The opinion of the court was delivered by: JAMES MUNLEY, District Judge

MEMORANDUM

Before the court for disposition is the defendants' motion to dismiss the plaintiff's pro se complaint, which alleges constitutional and tort claims against the United States Department of Labor. The matter has been fully briefed and is ripe for disposition. For the reasons that follow, the case will be dismissed.

Background

  Plaintiff James L. Culver, d/b/a EIFS Guy, was working as a construction subcontractor on a commercial building in Kingston Pennsylvania on July 8, 2003. The building was privately owned and operated by Jack Williams Tire Company. Defendant Russell White, Compliance Safety and Health Officer (hereinafter "White") of the Occupational Safety and Health Administration, of the United States Department of Labor (hereinafter "OSHA") inspected the jobsite on that date.*fn1 White took video and photographic images of the site. He subsequently issued citations to plaintiff for scaffolding violations.

  An "informal hearing" was held regarding the citations on September 3, 2003. At the hearing, plaintiff entered into an "Informal Settlement Agreement" with OSHA through its representative Defendant Andrew J. Hedesh. The Agreement reduced the penalties that the plaintiff was subject to from $2700 to $180. White did not appear at the hearing.

  Plaintiff filed a seven-count complaint based upon these facts. The causes of action in the complaint include: 1) Unreasonable Search under the constitutions of the United States and Pennsylvania — Plaintiff asserts that the inspection on July 8, 2003 was an unreasonable, warrantless search of private property without the owner's consent; 2) Abuse of Process — Plaintiff claims that the reason for the inspection was for the inspector to gain favor with his "union brothers" by causing oppression and hardship to non-union contractions such as himself; 3) Falsification of Government Records — Plaintiff avers that seven citations were issued that were in some way false, misleading and unsubstantiated; 4) Deprivation of Property Without Due Process of Law — Plaintiff claims that defendants' actions caused him to dissolve his business; 5) Discrimination — Plaintiff asserts that defendants discriminated against him because of his non-union status; 6) Invasion of Privacy/False Light — Plaintiff asserts that defendants created false, misleading and unsubstantiated citations and published the information on the internet; and 7) Intentional Infliction of Emotional Distress — Plaintiff alleges that defendants' action of falsifying documents alleging him to be incompetent and unqualified in his profession and then publishing them on the internet was outrageous conduct that caused him to suffer severe physical and emotional distress, pain, anguish, humiliation, embarrassment and emotional trauma. Plaintiff seeks, inter alia, compensatory and punitive damages.

  Defendant has moved to dismiss the case pursuant to Federal Rules of Civil Procedure 12(b)(1),(2),(4),(5) and (6), for failure to exhaust administrative remedies, failure to properly serve, insufficient process, insufficiency of service and failure to state a claim upon which relief can be granted, respectively, bringing the case to its present posture. We find defendants' arguments with respect to Rule 12(b)(1) to be dispositive, and we shall focus our discussion on that rule.

  Jurisdiction

  Generally, we have jurisdiction over cases in which the United States is a party. 28 U.S.C. § 1346. The remainder of this memorandum discusses whether we have jurisdiction in this particular case.

  Standard of review

  Rule 12(h)(3) of the Federal Rules of Civil Procedure provides: "Whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action." Rule 12(b)(1) allows a party to raise the issue of "lack of subject matter jurisdiction" by way of motion.

  In deciding a 12(b)(1) motion, the court may consider the motion as either a factual or facial attack of the complaint. Gould Electronics Inc. v. U.S., 220 F.3d 169, 176 (3d Cir. 2000). If treated as a facial attack, we consider only the allegations of the complaint and documents referenced therein and attached thereto. Id. Moreover, we consider the facts in the light most favorable to the plaintiff. Id. Where a factual attack is presented, we may consider evidence outside of the pleadings. Id. In the instant case, the facts are not in dispute, therefore, we treat the motion as a facial attack of the complaint.

  Discussion

  "Absent a waiver, sovereign immunity shields the Federal Government and its agencies from suit." Federal Deposit Ins. Corp. v. Meyer, 510 U.S. 471, 475 (1994). In other words, the United States cannot be sued without its ...


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