Searles v. Toledo Area Sanitary Dist.
| Decision Date | 16 July 2013 |
| Docket Number | CASE NO. 3:13cv0966 |
| Parties | Susan Claire Searles, Plaintiff, v. Toledo Area Sanitary District, et al., Defendants. |
| Court | U.S. District Court — Northern District of Ohio |
MEMORANDUM OPINION& ORDER
On March 15, 2013, pro se plaintiff Susan Claire Searles filed the above-captioned in forma pauperis action against Toledo Area Sanitary District (TASD) Mosquito Control, the Ohio Department of Agriculture, Region 5 of the United States Environmental Protection Agency (EPA), Lucas County Common Pleas Court, the Toledo/Lucas County Health Department, the Ohio Department of Health, Lucas County Commissioners and the Ohio EPA. She asserts this Court's Federal Question jurisdiction pursuant to 28 U.S.C. § 1331 based on the inclusion of a federal agency as a party defendant. Plaintiff seeks a Declaratory Judgment ordering defendant TASD to cease all actions that violate local, state, and federal law.
For the reasons set forth below, the Complaint is dismissed pursuant to 28 U.S.C. § 1915(e).
Plaintiff describes herself as a white, college-educated female who resides in Lucas County, Ohio. She is an "avid home gardener" who is actively involved in the expansion of communitygardens in Lucas County. Her concerns over "nerve-poisoning mosquito-spray residue on gardens, yards, recreational areas, workplace and home interiors, and the deteriorating health of Lucas County children and adults, led Plaintiff to conduct interviews and research."(Compl. at 4.) A sizeable percentage of the Complaint includes her findings and conclusions regarding environmental pollutants, presumably based on her research.
Directly below her jurisdictional statement to the Court, Plaintiff sets forth: "Issues to Be Addressed." There, she asks the Court to address her claims of trespass, public health nuisance, negligence, breach of contract, violations of unspecified EPA/FIFRA regulations,1 Ohio statutes, international treaties and violations of her Constitutional rights under the Fifth and Fourteenth Amendments. The Complaint is then divided into the following four major headings: (1)Impacts on Public Safety, Security, Health and Environmental Quality; (2) Impacts on Air and Water Quality Locally, Internationally, Surrounding Lake Erie, Impacts on Food Safety, Food Security, (3) Trade with European Union; and (4)Noncompliance, Misrepresentation, Breach of Contract. Under each of these headings, Plaintiff lists subheadings that intersperse many of the allegations she summarized under "Issues," but also includes her commentary on pollutants released into a community and the potential harm to its citizens. The subheadings also describe how defendants unlawfully engaged in acts or failed to act in compliance with the law.
Plaintiff cites "No-Spray Coalition v. NYC" and "MacAlpine v. Hopper," as legal precedent the defendants have "negligently ignored" and which establish the legitimacy of her federal claim.2 She avers these cases should have directed TASD to change its spray policy, but were disregarded.
Amongst the overlapping claims she lists in the Complaint, Plaintiff states the defendants violated her rights under the Takings Clause pursuant to the Fifth and Fourteenth Amendments. This is illustrated by TASD's use of "petrochemical biocides" since 1947, which have allegedly deprived Lucas County residents of their "'inalienable' human rights" and the right to enjoy their property free from harm. Moreover, EPA Region 5 and the ODA have neglected to enforce "federal-treaty, state and municipal antipollution codes," thus depriving Lucas County residents' of their right to Equal Protection under the law. She adds that minority families are especially victimized by the mosquito spraying because "their housing is closest to the street, more likely to have windows open on hot summer nights, more likely to have older people sitting on open porches, and more likely to have young people congregated in the streets on summer evenings when the mosquito-spray truck passes." (Compl. at 8.)
Although pro se pleadings are liberally construed, Boag v. MacDougall, 454 U.S. 364, 365 (1982) (per curiam); Haines v. Kerner, 404 U.S. 519, 520 (1972), the district court is required to dismiss an action under 28 U.S.C. § 1915(e) if it fails to state a claim upon which relief can be granted, or if it lacks an arguable basis in law or fact, or is frivolous. Neitzke v. Williams, 490 U.S. 319 (1989); Lawler v. Marshall, 898 F.2d 1196 (6th Cir. 1990); Sistrunk v. City of Strongsville, 99 F.3d 194, 197 (6 th Cir. 1996).
As an incident to the elaboration of this bedrock requirement, Court has always required that a litigant have 'standing' to challenge the action sought to be adjudicated in the lawsuit." Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454 U.S. 464, 471 (1982). A private litigant, whether he or she is a legislator, acitizen, or a taxpayer must demonstrate a personal stake in the outcome and demonstrate he or she is the proper party to request adjudication of a particular issue in order to have standing. Flast v. Cohen, 392 U.S. 83 (1968). Federal courts do not have the power to render advisory opinions. F.C.C. v. Pacifica Foundation, 438 U.S. 726 (1978).
To establish standing under Article III, the following three requirements must be in place: (1) the plaintiff has suffered "an injury in fact," (2) that injury bears a causal connection to the defendant's challenged conduct, and (3) a favorable judicial decision will likely provide the plaintiff with redress from that injury. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). It is the plaintiff, as the party invoking federal jurisdiction, who bears the burden of establishing these elements. See Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 12 (2004).
Plaintiff is obviously aware of her burden and devotes a portion of her Complaint to argue she has sufficiently established standing to bring this action in federal court. She alleges TASD has repeatedly "contaminated" her yard through "spray drifts" after it treated her neighbors' property with chemicals that are allegedly "known to be nerve poisons." (Compl. at 7.) The residue from this spray has "affected the safety of Plaintiff's garden produce." Id. The two instances of direct injury by TASD that she recounts in her Complaint are both used to support her trespass claims against TASD, however.
The first instance, for which she does not provide a date, occurred when one of TASD's trucks made a U-turn in the driveway of a house directly across the street from Plaintiff's home. The truck began spraying her neighbor's property while Plaintiff was working in her front yard. At that moment, Plaintiff watched her cat run behind the TASD truck and back toward her home. She claims the cat later suffered difficulty breathing, watery eyes and other "gross symptoms until Plaintiff was forced to have the cat put away by a veterinarian." (Compl. at 7.) She does not allege she suffered or is suffering any physical injury as a result of this incident.
The second incident allegedly occurred on the evening of August 25, 2011, while Plaintiff was walking on the street. A TASD truck drove past her at a distance of 50 feet. At the time the truck drove by, the driver sprayed a chemical mist that allegedly traveled quickly on that windy evening. The spray caused Plaintiff "discomfort and irritation . . . for several months." Even when she contacted TASD to request that it delay spraying until later in the evening, TASD allegedly never responded to her letter. She states TASD "presumably" continued to spray when wind speeds exceeded 10 mph, in violation of unspecified EPA regulations.
Without question, general factual allegations of injury resulting from a defendant's conduct may suffice at the pleading stage. Lujan v. National Wildlife Federation, 497 U.S. 871, 889 (1990) () This does not relieve plaintiff's burden to establish an injury in fact, however. The Supreme Court has defined an "injury in fact" as "an invasion of a legally protected interest which is concrete and particularized. Defenders of Wildlife, 504 U.S. at 560 (citing Allen v. Wright, 468 U.S. 737, 756 (1984); Warth v. Seldin, 422 U.S. 490, 508 (1975); Sierra Club v. Morton, 405 U.S. 727, 740-41, n. 16 (1972). As an example, the injury alleged must be " 'distinct and palpable,'" Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 100 (1979) (quoting Warth, 422 U.S., at 501), and not "abstract" or "conjectural" or "hypothetical," Los Angeles v. Lyons, 461 U.S. 95, 101-02 (1983); O'Shea v. Littleton, 414 U.S. 488, 494 (1974). In this context, Plaintiff can only raise those claims for which she suffered a "concrete and particularized" injury.
The Supreme Court has "consistently held that a plaintiff raising only a generally available grievance about government---claiming only harm to his and every citizen's interest in proper application of the Constitution and laws, and seeking relief that no more directly and tangibly benefits him than it does the public at large---does not state an Article III case or controversy." Lujan, 504 U.S. at 573-74. Therefore, all of Plaintiff's claims regarding injuries to residents of LucasCounty cannot be addressed because they do not present an Article III case or controversy for which she has standing to bring. Accordingly the Court will only address those claims for which Plaintiff has alleged an injury in fact.
To the extent Plaintiff sought to file this Complaint on behalf of Lucas County residents, she would be barred by statute. A pro se plaintiff cannot...
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