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N'Jai v. U.S. Environmental Protection Agency

United States District Court, W.D. Pennsylvania

June 4, 2014

JACQUELYN B. N'JAI, Plaintiff,



From July 2008 through July 2012, Plaintiff Jacquelyn B. N'Jai rented an apartment located in the city of Pittsburgh and owned by Gary and Connie Bentz. In 2011 and 2012, a dispute developed between Plaintiff and the Bentzes regarding the conditions of the apartment. In particular, Plaintiff developed concerns that she was being exposed to lead-based paint and mold contamination. Plaintiff registered a complaint with the U.S. Environmental Protection Agency ("EPA") but was unsatisfied with the Agency's response to the situation. She subsequently commenced this litigation, naming as Defendants the Bentzes, their real estate partnership, the EPA, and Annie Hoyt, [1] an EPA official associated with Plaintiff's administrative case. Plaintiff's pro se complaint asserts claims for negligence and negligent infliction of emotional distress, alleged violations of the Freedom of Information Act, 5 U.S.C. § 552, and the Administrative Procedures Act, 5 U.S.C. §§ 701-706, and the alleged violation of her federal constitutional rights.[2]

Presently pending before the Court is a motion filed by the EPA and Hoyt (the "Federal Defendants") to dismiss the complaint or, in the alternative, for summary judgment (Docket No. 43). For the reasons that follow, the Federal Defendants' motion will be granted.

I. Procedural and Factual Background[3]

From July of 2008 through July 31, 2012, Plaintiff resided in an apartment located at 226 East End Avenue in Pittsburgh. The subject property is owned by Defendants Gary and Connie Bentz. (Second Amended Complaint ("SAC") [ECF No. 11] at "Jurisdiction" ¶ 2; id. at "Count One" ¶¶ 1, 3, 8.)

Plaintiff claims that, prior to July 2012, a broken drainpipe at the apartment caused severe water damage to the foundation of the kitchen and living room areas, resulting in mold growth on the interior walls. (SAC, "Count One" ¶¶ 5-7.) Despite her repeated complaints about these problems, the situation remained unabated from 2011 through June 2012. ( Id .)

On or about July 24, 2012, as Plaintiff was arranging to move out of the apartment, Defendant Gary Bentz arrived unannounced with another individual and requested entry in order to perform renovations. (SAC, "Count One" ¶¶ 8, 11.) The two men then began removing mold and what Plaintiff claims was lead-based paint from the walls of her apartment while she was still present. ( Id . at ¶ 11.) The individual assisting Mr. Bentz lacked any indication that he was certified or licensed. ( Id. ) In the process of these renovations, dust from the scrapings covered Plaintiff's food, appliances, and furniture and remained on the kitchen and living room floors for over an hour. ( Id . at ¶¶ 12, 13.)

Plaintiff informed the two men that she was allergic to dust and demanded that they cease their activities until she could leave the apartment, but they refused. (SAC, "Count One" ¶16.) Plaintiff then contacted her attorney, who spoke with Mr. Bentz and told him to cease and desist. ( Id . at ¶ 17.) In retaliation, Mr. Bentz swept remnants of the scrapings onto a vent, causing the dust to become airborne. ( Id . at ¶¶ 18-19.) Plaintiff contacted the EPA's emergency hotline during this time and was allegedly informed that Mr. Bentz's actions were in violation of federal environmental law. ( Id . at ¶¶ 24-25, 27.) Plaintiff moved out of the apartment a week later, on July 31, 2012. ( Id . at ¶ 28.)

Plaintiff claims that, after her phone call to the EPA, the Bentzes began to retaliate against her in various ways, such as going in and out of her apartment without permission, giving keys to other tenants to do the same, showing up unannounced at the apartment to harass her, making defamatory statements about her to various individuals, and refusing to return her security deposit. (SAC, "Count One" ¶¶ 33-38.) When Plaintiff filed a state court action against other tenants who were harassing her and damaging her property, the Bentzes testified untruthfully against her, stating that her complaint to the EPA was unfounded and that her decision to wear a dust mask showed that she was mentally ill. ( Id . at ¶¶ 32, 44-46.) When Plaintiff complained about an unremediated sewage problem and other issues having to do with the property, the Bentzes falsely attributed the problems to Plaintiff and accused her of being "nasty." ( Id . at ¶¶ 36, 39-40, 42; SAC, "Count Two" ¶ 59.)

Plaintiff avers that she was exposed to contaminated dust from approximately July 24 through July 31, 2012, when she moved out of the apartment. (SAC, "Count Five" ¶ 92.) As a result of her exposure, Plaintiff experienced numerous symptoms, such as severe cramping and spasms, burning eyes, nose bleeds, itching, hair loss, gagging, coughing, and impaired cognitive functioning. (SAC, "Count One" ¶¶ 21-22; id . at "Count Five" ¶¶ 93-101, 104-06.) After moving out of the apartment, Plaintiff had to discard certain furniture, clothing, and other property that had been damaged by the dust. She placed her remaining belongings in storage. (SAC, "Count One" ¶ 29; id . at "Count Five" ¶¶ 102-03.) She stayed in a hotel, and then with her daughter, until moving into another apartment on August 15, 2012. (SAC, "Count One" ¶ 29; id . at "Count Five" ¶ 102.) During this time she incurred expenses totaling over $2, 000.00. (SAC, "Count Five" ¶ 102.)

From July 2012 through 2013, Plaintiff was in contact with Mark Samolis, an inspector with the EPA, concerning her complaint against the Bentzes, and she supplied the Agency with certain evidence concerning the incident. (SAC, "Count One" ¶¶ 28, 30.) Plaintiff sought protection from the EPA against possible acts of retaliation by the Bentzes; however, she was informed by Defendant Hoyt that there were no additional remedies for EPA retaliation, and Hoyt therefore "refused to tack... any other issues" onto the Agency's investigation of the Bentzes. (SAC, "Count Three" ¶¶ 62-63.)

Plaintiff sought information from the EPA under the Freedom of Information Act ("FOIA") concerning the Agency's investigation. (SAC, "Count Three" ¶ 64.) Although Plaintiff had been told by someone at "EPA FOIA" that Samolis would inform her about the results of his inspection, Samolis and Hoyt refused to give Plaintiff any information. ( Id . at ¶¶ 66, 67.) They claimed the information was secret and that only Hoyt (not Samolis) would know the outcome of the Agency's investigation. ( Id . at ¶¶ 67-68.) Samolis informed Plaintiff that all inquiries about her administrative complaint had to be made with Hoyt. ( Id . at ¶ 69.) However, Hoyt allegedly refused to cooperate or provide any administrative relief to Plaintiff. ( Id . at ¶ 70.) Unsatisfied, Plaintiff notified Hoyt's superiors about her situation and was informed that she would be given information about the outcome of her administrative complaint against the Bentzes. ( Id . at ¶ 71.) Over one year later, she still had not heard anything. ( Id . at ¶ 72.) Plaintiff notified the EPA on or about June 10, 2013 that she intended to file suit within 30 to 60 days. ( Id. at ¶ 73.) Despite this notice, she received no administrative relief. ( Id. at ¶ 74.)

Based on the foregoing allegations, Plaintiff commenced this litigation. She filed her Second Amended Complaint, the operative pleading in this case, on October 23, 2013. In that pleading (Docket No. 11), Plaintiff asserts five causes of action - specifically: negligence (Count 1); negligent infliction of emotional distress (Count 2); alleged violations of the Freedom of Information Act (Count 3); a Bivens action[4] premised on the alleged violation of Plaintiff's federal constitutional rights (Count 4); and alleged violations of the Administrative Procedures Act (Count 5).

On March 13, 2014, the Federal Defendants filed the pending motion to dismiss or, in the alternative, for summary judgment (Docket No. 43). Plaintiff filed her initial response to the motion (Docket No. 50) on April 2, 2014. Defendants filed their reply brief in support of their motion (Docket No. 54) on April 16, 2014. Plaintiff filed a document styled as a "motion and/or brief in sur-reply" (Docket No. 56) on April 30, 2014. The issues raised by the Defendants have been adequately joined and are now ripe for disposition.

II. Standard of Review

A. Motion to Dismiss

In their motion, the Federal Defendants invoke both Rule 12(b)(1) and Rule 12(b)(6) of the Federal Rules of Civil Procedure. Rule 12(b)(1) addresses claims over which the court lacks subject matter jurisdiction, while Rule 12(b)(6) addresses claims that fail to state a cognizable cause of action.

1. Rule 12(b)(1)

When a district court analyzes a motion under Rule 12(b)(1), "its first task is to classify the [defendant's] motion as either a factual attack or a facial attack." CNA v. United States , 535 F.3d 132, 139 (3d Cir. 2008). A facial attack "concerns an alleged pleading deficiency' whereas a factual attack concerns the actual failure of [a plaintiff's] claims to comport [factually] with the jurisdictional prerequisites.'" Id . (alterations in the original) ( citing U.S. ex rel. Atkinson v. Pa. Shipbuilding Co ., 473 F.3d 506, 514 (3d Cir. 2007)).

A court reviewing a facial attack "must only consider the allegations of the complaint and documents referenced therein and attached thereto, in the light most favorable to the plaintiff." Nichole Med. Equip. & Supply, Inc. v. TriCenturion, Inc. , 694 F.3d 340, 347 (3d Cir. 2012) ( quoting Gould Elecs. Inc. v. United States , 220 F.3d 169, 176 (3d Cir. 2000)). In addition, the court may consider matters of public record. See Medici v. Pocono Mountain Sch. Dist ., Civ. No. 09-cv-2344, 2010 WL 1006917 at *2 (M.D. Pa. Mar.16, 2010) (citation omitted); Jones v. Butler , Civ. No. 09-3128, 2009 WL 2461885 at *1 & n.12 (E.D. Pa. Aug. 11, 2009) (citing authority). Although the Court must construe the facts alleged in the Plaintiff's favor, it need not accept bald assertions or legal conclusions as true. Batchelor v. Rose Tree Media School Dist., Civil No. 11-6733, 2013 WL 1776076 at *3 (E.D. Pa. Mar. 28, 2013) (citing authority).

A factual attack on jurisdiction differs from a facial attack in that "no presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims." Mortensen v. First Federal Sav. and Loan Ass'n , 549 F.2d 884, 891 (3d Cir. 1977). In resolving a factual challenge under Rule 12(b)(1), "the court may consider and weigh evidence outside the pleadings to determine if it has jurisdiction." Gould Electronics Inc. v. United States , 220 F.3d 169, 178 (3d Cir. 2000) ( citing Mortensen , 549 F.2d at 891). See also Gordon v. East Goshen Twp., 592 F.Supp.2d 828, 836-37 (E.D. Pa. 2009). It is the plaintiff's burden to demonstrate that federal subject matter jurisdiction exists over his claims. See Hedges v. United State s, 404 F.3d 744, 750 (3d Cir. 2005) ("[T]he plaintiff must bear the burden of persuasion" in connection with a motion to dismiss brought pursuant to Rule 12(b)(1)) ( quoting Kehr Packages, Inc. v. Fidelcor, Inc ., 926 F.2d 1406, 1409 (3d Cir. 1991)).

2. Rule 12(b)(6)

When reviewing a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), the court 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.'" Eid v. Thompson , 740 F.3d 118, 122 (3d Cir. 2014) ( quoting Phillips v. County of Allegheny , 515 F.3d 224, 233 (3d Cir. 2008)). To survive a Rule 12(b)(6) challenge, the plaintiff's "[f]actual allegations must be enough to raise a right to relief above the speculative level...." Id . ( quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555 (2007)). Thus, "only a complaint that states a plausible claim for relief survives a motion to dismiss." Id. (quoting Ashcroft v. Iqbal , 556 U.S. 662, 679 (2009)). Although the Court must accept the allegations in the complaint as true, "[it is] not compelled to accept unsupported conclusions and unwarranted inferences, or a legal conclusion couched as a factual allegation." Morrow v. Balaski, 719 F.3d 160, 165 (3d Cir. 2013) ( quoting Baraka v. McGreevey , 481 F.3d 187, 195 (3d Cir. 2007)). In addition, merely pleading facts consistent with liability is not sufficient; the plaintiff must plead facts which permit the court to make a reasonable inference that defendant is liable. Twombly , 550 U.S. at 570.

Generally, a district court may not consider matters outside of the Complaint when ruling on a Rule 12(b)(6) motion to dismiss. "If, on a motion under Rule 12(b)(6)..., matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56." Fed.R.Civ.P. 12(d).[5] An exception to this rule exists whereby courts may consider, for Rule 12(b)(6) purposes: (i) exhibits that are attached to the complaint, (ii) matters of public record, and (iii) any undisputedly authentic document that a defendant attaches as an exhibit to a motion to dismiss if the plaintiff's claims are based on the document. In re Burlington Coat Factory Securities Litigation , 114 F.3d 1410, 1426 (3d Cir. 1997); Pension Benefit Guar. Corp. v. White Consol. Indus., Inc ., 998 F.2d 1192, 1196 (3d Cir. 1993).

B. Motion for Summary Judgment

Pursuant to Rule 56 of the Federal Rules of Civil Procedure, summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). "Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp ., 475 U.S. 574, 587 (1986) (internal quotation marks omitted); Diaz v. City of Philadelphia, ___ F.Appx. ___, 2014 WL 1724440 *2 (3d Cir. May 2, 2014). A district court analyzing a Rule 56 motion must view the facts of record, and any reasonable inferences arising therefrom, in the light most favorable to the nonmoving party. Diaz, supra , at *2 ( citing Anderson v. Liberty Lobby, Inc ., 477 U.S. 242, 255 (1986)); Burns v. Pa. Dep't of Corr ., 642 F.3d 163, 170 (3d Cir. 2011). However, unsubstantiated arguments made in briefs are not considered evidence of asserted facts. Versarge v. Township of Clinton , 984 F.2d 1359, 1370 (3d Cir.1993); Smith v. Samuels , Civ. No. 3:12-524, 2013 WL 5176742 at *3 (M.D. Pa. Sept. 12, 2013).

C. Pro Se Litigant

In this case, Plaintiff is proceeding pro se . Pleadings and other submissions by a pro se litigant are subject to liberal construction. Salley v. Secretary Pennsylvania Dept. of Corrections, ___ F.Appx. ___, 2014 WL 1706351 *3 (3d Cir. 2014); Higgs v. Att'y Gen ., 655 F.3d 333, 339 (3d Cir. 2011). Nevertheless, for Rule 12(b)(6) purposes, a pro se complaint must still "contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Salley, supra , at *3 ( quoting Ashcroft, 556 U.S. at 678). Similarly, "[a]lthough Plaintiff's filings are entitled to liberal construction" for purposes of Rule 56, "[s]he still must set forth facts sufficient to survive summary judgment." Winfield v. Mazurkiewicz, Civ. No. 11-584, 2012 WL 4343176 at *2 (W.D. Pa. Sept. 21, 2012). See also Ezeiruaku v. United States, Civ. No. 00-2225, 2000 U.S. Dist. LEXIS 17046, 2000 WL 1751077 at *3 (E.D. Pa. Nov.29, 2000) (noting that, "while pro se complaints are entitled to liberal construction, the plaintiff must still set forth facts sufficient to survive summary judgment") ( citing Shabazz v. Odum, 591 F.Supp. 1513, 1515 (M.D. Pa. 1984)).

III. Relevant Statutory Law

When Plaintiff's Second Amended Complaint and summary judgment papers are construed liberally, it appears that her grievances against the Federal Defendants are two-fold. First, Plaintiff complains that the Federal Defendants improperly withheld information bearing on her administrative complaint against the Bentzes. Second, Plaintiff complains that the Federal Defendants denied her any "administrative remedies." (SAC ¶ 91).

As Plaintiff recognizes, her grievance about the Federal Defendants' withholding of information implicates FOIA, 5 U.S.C. § 552. Enacted "to facilitate public access to Government documents, " United States Dep't of State v. Ray , 502 U.S. 164, 173 (1991), FOIA requires government agencies to promptly make available any records requested unless the requested records are exempt from disclosure under one or more of nine specific exemptions set forth in the FOIA statute. See 5 U.S.C. § 552(a)(3)(A); Davin v. United States Department of Justice , 60 F.3d 1043, 1049 (3d Cir. 1995). In fulfillment of this duty, an agency receiving a request for information must conduct a reasonable search for responsive records. See 5 U.S.C. § 552(a)(3)(C) and (D); Abdelfattah v. U.S. Dept. of Homeland Security , 488 F.3d 178, 182 (3d Cir. 2007) ( citing Oglesby v. U.S. Dept. of Army , 920 F.2d 57, 58 (D.C. Cir. 1984)).

Generally, the agency has twenty days from the date of the FOIA request in which to make a determination as to whether the requested records will be produced. 28 U.S.C. § 552(a)(6)(A)(i). Upon determining whether it will comply with the FOIA request, the agency must "immediately notify the person making [the] request of such determination and the reasons therefor, and of the right of such person to appeal to the head of the agency any adverse determination." Id. Upon receipt of an appeal, the agency is required to make a determination within twenty days as to the merits of the appeal. Id. at § 552(a)(6)(A)(ii). If, on appeal, the agency's denial of the FOIA request is upheld in part or in whole, the agency must notify the requester of his or her right for judicial review. Id. If the agency fails to respond within the prescribed twenty-day period, then the requester is deemed to have constructively exhausted his or her administrative remedies and may proceed to file suit. Id. at § 552(a)(6)(C)(i). See also Arizechi v. Internal Revenue Service , Civ. No. 06-CV-5292, 2008 WL 539058 at *5 (D.N.J. Feb. 25, 2008) (citing 5 U.S.C. § 552(a)(6)(C)).

Plaintiff's other grievance against the Federal Defendants is that they denied her "administrative remedies." Plaintiff believes "it was clear that the Defendants Bentz [sic] violated federal EPA laws." (SAC, "Count Three" ¶ 74.) Specifically, she alleges that the "EPA... negligently and capriciously allowed Defendants Gary and Connie Bentz to violate its lead and/or mold dust renovation and tenant pamphlet notification policies, disregarding the harm it caused Plaintiff." (SAC, "Count Four" ¶ 85.) Defendant Hoyt is similarly alleged to have "ignored Mr. Samolia's [sic]... statement that the Defendants did violate EPA statutes regarding renovations and giving tenants lead information." (SAC, "Relief" ¶ 87.)[6] Although it is not entirely clear what administrative remedies Plaintiff believes she is entitled to receive, her averments suggest that she sought protection from the Bentzes' alleged acts of retaliation after she made her administrative complaint, compensation for her out-of-pocket losses, protection from exposure to the alleged contaminants in the first place, and/or enforcement of administrative penalties against the Bentzes.

Although Plaintiff never identifies the specific federal laws that the Bentzes allegedly violated, it appears she is referring to the Residential Lead-Based Paint Hazard Reduction Act (the "RLBP Hazard Reduction Act"), 42 U.S.C. §§ 4851 et seq., and Title IV of the Toxic Substances Control Act (the "TSCA"), 15 U.S.C. §§ 2681-2692. Because these statutes are central to several of Plaintiff's claims, a brief overview of their structure and purpose is necessary.

The RLBP Hazard Reduction Act has been aptly summarized by the Third Circuit Court of Appeals as follows:

The Residential Lead-Based Paint Hazard Reduction Act is a disclosure statute requiring a seller or lessor of residential target housing (1) to provide the purchaser or lessee with a lead hazard information pamphlet (as described in 15 U.S.C. § 2686); (2) to disclose the known or possible presence of lead-based paint or other lead hazards; (3) to provide information about lead hazards; and (4) to allow the purchaser or lessee a ten-day risk assessment period. FN3 42 U.S.C. § 4852d(a). A seller or lessor who knowingly violates these requirements is subject to the following penalties:
FN3. Target housing is defined as "any housing constructed prior to 1978, except housing for the elderly or persons with disabilities (unless any child who is less than 6 years of age resides or is expected to reside in such housing) or any 0-bedroom dwelling." 40 C.F.R. § 745.103.
(1) Monetary penalty
Any person who knowingly violates the provisions of this section shall be subject to civil money penalties in accordance with the ...

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