The opinion of the court was delivered by: William W. Caldwell United States District Judge
The pro se plaintiff, Naja J. Haymon-Peynado, filed this civil-rights action arising from an infestation of bed bugs in an apartment she rented from the York Housing Authority. She names as defendants Debbie Loucks, the Authority's executive director; Brian White, the Authority's housing manager; Daniel J. Ellis, an officer with the Office of Inspector General for the United States Department of Housing and Urban Development ("HUD"); and Scott James, a detective in the York County District Attorney's Office. We are considering Ellis's motion to dismiss the complaint against him.
On a motion to dismiss, "[w]e 'accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief.'" Byers v. Intuit, Inc., 600 F.3d 286, 291 (3d Cir. 2010) (quoted case omitted).
According to the complaint, the relevant time period for the insect infestation was January 2011 to April 2011. Plaintiff alleges that on February 17, 2011, she was interviewed by Ellis. She told him about the infestation and the bug bites she sustained. (Doc. 1, at 3). Plaintiff asserts that Ellis is in charge of "investigating the orderly running of tenant's safety and protection." (Doc. 1, at 2-3). She avers that Ellis negligently failed to protect her from the infestation in violation of the Eighth Amendment and the Due Process Clause of the Fourteenth Amendment. She seeks compensatory and punitive damages against him. (Doc. 1, ¶¶ 5-6).
Ellis filed a motion to dismiss on December 21, 2011. On January 10, 2012, Ellis filed an Amended Certificate of Service indicating that the motion was mailed to plaintiff but was returned as undeliverable. We ordered Ellis to send a copy of the motion to plaintiff's updated address and required plaintiff to respond by February 23, 2012. Plaintiff filed a brief in opposition on March 1, 2012.
Federal Rule of Civil Procedure 12(b)(1) allows a court to dismiss a complaint for lack of subject-matter jurisdiction. When a motion to dismiss pursuant to Rule 12(b)(1) is presented, the plaintiff is required to "convince the court it has jurisdiction." Gould Elecs., Inc. v. United States, 220 F.3d 169, 178 (3d Cir. 2000). Plaintiffs "bear the burden of establishing their standing." Common Cause of Pa. v. Pennsylvania, 558 F.3d 249, 257 (3d Cir. 2009) (citing DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 342 (2006)).
Federal Rule of Civil Procedure 12(b)(6) authorizes dismissal of a complaint for "failure to state a claim upon which relief can be granted." Under Rule 12(b)(6), we must "accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief." Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (quoting Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008)). While a complaint need only contain "a short and plain statement of the claim," Fed. R. Civ. P. 8(a)(2), and detailed factual allegations are not required, Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964, 167 L.Ed.2d. 929 (2007), a complaint must plead "enough facts to state a claim to relief that is plausible on its face." Id. at 570, 127 S.Ct. 1955 at 1974. "The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Ashcroft v. Iqbal, - - - U.S. - - -, 129 S.Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 556, 127 S.Ct. at 1965.) "[L]abels and conclusions" are not enough, Twombly, 550 U.S. at 555, 127 S.Ct. at 1964-65, and a court "'is not bound to accept as true a legal conclusion couched as a factual allegation.'" Id., 127 S.Ct. at 1965 (quoted case omitted).
In resolving the motion to dismiss, we thus "conduct a two-part analysis." Fowler, supra, 578 F.3d at 210. First, we separate the factual elements from the legal elements and disregard the legal conclusions. Id. at 210-11. Second, we "determine whether the facts alleged in the complaint are sufficient to show that the plaintiff has a 'plausible claim for relief.'" Id. at 211 (quoted case omitted).
B. State Law Negligence Claim
Plaintiff brings a negligence claim against Ellis in his official capacity. Defendant argues that the United States is the proper defendant in this action and the suit is barred by sovereign immunity unless it is brought pursuant to the Federal Tort Claims Act ("FTCA"). We agree that the United States is the proper defendant and plaintiff must meet the requirements of the FTCA. See Hutchinson v. United States, 677 F.2d 1322, 1327 (9th Cir. 1982)("The bar ...