N'Jai v. U.S. Envtl. Prot. Agency
| Decision Date | 03 June 2014 |
| Docket Number | Civil Action No. 13-1212 |
| Parties | JACQUELYN B. N'JAI, Plaintiff, v. US ENVIRONMENTAL PROTECTION AGENCY, ANNIE HOYT, GARY BENTZ, CONNIE BENTZ, and C.A. BENTZ LLP, Defendants. |
| Court | U.S. District Court — Western District of Pennsylvania |
MEMORANDUM OPINION
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 theAdministrative 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.
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 coveredPlaintiff'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 aresult 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 action4 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.
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.
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...
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