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Schneider v. United States

December 17, 2007

FREDERICK SCHNEIDER PLAINTIFF,
v.
UNITED STATES OF AMERICA, UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, KENNETH ENG, KENNETH ENG, NEW JERSEY DEPT. OF ENVIRONMENTAL PROTECTION, BRAD CAMPBELL, EDWARD M. CHOROMANSKI, TIM P. DAVIS, N.J. DEPT. OF HEALTH & SENIOR SERVICES, FRED JACOBS, ATLANTIC COUNTY GOVERNMENT, ATLANTIC COUNTY HEALTH DEPT., JAMES WITKOSKIE, PATRICIA DIAMOND, PATRICK DILLON, MARILYN GERHARDT, CITY OF ATLANTIC CITY, ATLANTIC CITY HEALTH DEPT., RONALD L. CASH, JANET REINHARD, MARTIN CONNIE, ATLANTIC CITY SHOWBOAT, INC., BEST OF LIFE PARK APARTMENTS, MAURY BLUMBERG, HENRY COHEN, CONECTIV THERMAL SYSTEMS, SIDNEY CRANE, LOU DEFEO, STAN DYNER, CLAIRE GOLDBLATT, THOMAS HERZOG, ROBERT KIEJDAN, CAROLE A. KOOTMAN, KEN LEHBERGER, MARVIN MILLER, SEYMOUR ROSEN, IRVING SHEINFELD, HERBERT STERN, TRUMP TAJ MAHAL ASSOCIATES, LLC, MARTIN WOOD DEFENDANTS.



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

OPINION

HON. JEROME B. SIMANDLE

Plaintiff Frederick Schneider, pro se, filed the instant action against forty above-captioned defendants. Plaintiff asserts four claims against the defendants premised on New Jersey tort law, and further alleges that the defendants infringed upon his civil rights in violation of various federal laws.

Presently before the Court are five motions to dismiss [Docket Items 56, 66, 67, 68, and 69] and a motion for injunctive relief requesting that the Court restrain Plaintiff from asserting claims against certain defendants in the future [Docket Item 66]. The moving defendants argue that Plaintiff's claims against them are barred by the doctrine of res judicata, because Plaintiff's suit simply repackages the claims he brought in an earlier state court action that was dismissed with prejudice. For the following reasons, the Court will dismiss Plaintiff's claims against those defendants who were parties to the state court lawsuit, but will deny the motions of the defendants who were not previously sued in state court. The Court will also deny the motion for injunctive relief.

I. BACKGROUND

A. Facts

On April 1, 2003, Plaintiff Frederick Schneider moved into an apartment unit at the Best of Life Park Apartments ("BLPA") complex in Atlantic City, New Jersey. (Am. Comp. ¶ 9.) The BLPA complex is located between fifty and two-hundred yards from two Atlantic City casinos -- the Trump Taj Mahal Casino ("Taj Mahal") and the Atlantic City Showboat Casino ("Showboat"). From the time Plaintiff moved to his BLPA apartment, he observed the two casino sites emitting a substance that he has variously described as "smoky emissions," "filmy moist pellets," and an "off-white moist mist." (Id.) According to Plaintiff, this substance drifts from the casinos to the neighboring BLPA complex, where, as Plaintiff alleges in his amended complaint, it has soiled tenants' vehicles and entered Plaintiff's living unit. (Id. at ¶¶ 9, 16.) The complaint states that on account of his age, Plaintiff has a "vulnerable respiratory system," and that the exposure to the casino emissions has had a deleterious effect on his health. (Id.) Specifically, Plaintiff alleges that since March 2004, he has suffered from "insufficient pulmonary function" and that he has been diagnosed with progressive pulmonary failure. (Id. at ¶ 16.)

Plaintiff has undertaken an extensive range of efforts to address his concerns over the misty substance. In July 2004, Plaintiff wrote a letter to the Taj Mahal to complain about its emissions. (Pl. Br. 3.) The Taj Mahal's Security Department apparently investigated the matter and observed "a white/grey substance similar to road salt" on some vehicles in the BLPA parking lot, but failed to take further action. (Id.)

On February 11, 2005, Plaintiff filed a complaint with Kenneth Eng, an employee of the United States Environmental Protection Agency ("EPA"), regarding the casino emissions. (Am. Compl. ¶ 9.) According to Plaintiff, on May 18, 2005, Mr. Eng sent two EPA investigators to look into the emissions alleged in Plaintiff's complaint. (Id.) The investigators conducted what Plaintiff considers to be an inadequate investigation and issued "an inaccurate [and] false report" that concluded that the casino emissions did not pose a health risk to Plaintiff and other BLPA tenants. (Id.) On June 9, 2005, Mr. Eng wrote Plaintiff a letter in which Mr. Eng advised Plaintiff that the EPA would not order the Taj Mahal and the Showboat casinos to cease their emissions because Plaintiff's complaint "had no merit." (Id.)

Also on February 11, 2005, Plaintiff filed a complaint with the New Jersey Department of Environmental Protection ("NJDEP") regarding the casino emissions. (Id. at ¶ 10.) NJDEP dispatched Tim P. Davis to investigate Plaintiff's allegations, and Mr. Davis made three visits to the casinos and BLPA between February and May, 2005. (Id.) While Mr. Davis did not observe any smoke over the course of his investigations, he "was able to observe a steam plume emanating from the cooling tower" on one of the casinos. (Id.) NJDEP, like the EPA, concluded that the casinos did not pose a health risk to Plaintiff, and declined to take further action in response to Plaintiff's complaint. (Id.)

Plaintiff filed similar complaints with the Atlantic County and Atlantic City Health Departments and the New Jersey Department of Health and Senior Services ("NJDHSS"). (Id. at ¶¶ 12-13.) On February 23, 2005, Plaintiff was informed by the Atlantic County Health Department that "the Atlantic City Health Department provides environmental health services within the jurisdiction of Atlantic City." (Id. at ¶ 12.) The Atlantic City Health Department, in turn, sent Martin J. Connie, Principal Sanitary Inspector, to investigate the casino emissions. (Id. at ¶ 13.) Plaintiff subsequently received a letter from Mr. Connie, dated November 2, 2005, concluding that the emissions did not present a health risk to Plaintiff. (Id.) According to Plaintiff, NJDHSS never responded to his complaint. (Id. at ¶ 11.)

B. Procedural History

In addition to the complaints he filed with these governmental agencies, Plaintiff has pursued his concerns about the casino emissions in state and federal court. On March 31, 2005, Plaintiff filed a lawsuit in the Superior Court of New Jersey, Atlantic County, against the Taj Mahal Hotel and Casino; the Showboat Hotel and Casino; Showboat's Maintenance Supervisor, Lou Defeo; Conectiv Thermal Systems*fn1 ; Conectiv's Vice President, Thomas W. Herzog; and Conectiv's Plant Manager, Ken Lehberger. (Showboat Br. Ex. 2.) Plaintiff's complaint in his state court action alleged that the defendants were liable for "gross negligence, willful misconduct and intentional infliction of emotional distress," as well as for violating the "New Jersey Public Nuisance Laws" and the "Air Pollution Control Acts and Administrative Rules." (Id.) (emphasis and capitalization omitted).

In two orders dated August 18, 2006, and October 6, 2006, the Honorable William E. Nugent granted the defendants' motions for summary judgment and dismissed Plaintiff's case with prejudice. (Murphy Aff. Ex. 10, O'Hara Aff. Ex. D.) In his oral opinion granting Showboat's motion for summary judgment, Judge Nugent found that Plaintiff had failed to present a triable issue of fact, noting that Plaintiff had failed "to do the [air quality] testing that the Court, not only permitted, but at least with respect to his apartment directed that he do" in order to establish the existence of the emissions and the contaminants that they allegedly contained. (Murphy Aff. Ex. 10 at 47.) Judge Nugent further explained that mere "speculation about whether there are emissions coming from the buildings that have contaminants in them, speculation about whether those contaminants, if they even exist, are finding their way into Mr. Schneider's ...


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