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Schneider v. United States

March 7, 2008


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



Plaintiff Frederick Schneider, pro se, filed this action against a long list of federal, state, county, city, and private defendants, asserting claims premised upon New Jersey tort law and multiple federal constitutional and statutory laws. Presently before the Court are the State and Federal Defendants' motions to dismiss [Docket Items 79 and 91] and Plaintiff's motion to file a second amended complaint [Docket Item 99]. For the reasons explained below, the State and Federal Defendants' motions to dismiss will be granted. In addition, the Court finds that while the County, City, and Private Defendants have not moved to dismiss Plaintiff's claims on the same grounds raised by the State and Federal Defendants, the reasons underlying the Court's decision to grant the State and Federal Defendants' motions warrant the dismissal of Plaintiff's claims against the nonmoving defendants as well. Finally, as the Court explains below, Plaintiff's motion to file a second amended complaint will be denied.


A. Facts

At the time the events underlying this litigation occurred, Plaintiff lived in 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 within two-hundred yards of two Atlantic City casinos -- the Trump Taj Mahal Casino ("Taj Mahal") and the Atlantic City Showboat Casino ("Showboat"). (Id.) According to Plaintiff, from the date he moved into the BLPA complex in April 2003, he observed the Taj Mahal and Showboat casinos emitting "smoky emissions" or an "off-white moist mist." (Id.) Plaintiff's Complaint alleges that this substance has drifted from the casinos into his living unit.

(Id.) According to Plaintiff, his exposure to this mist has negatively impacted his health. (Id.) Specifically, Plaintiff states 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 extensive steps in order to convince various parties to address his concerns over the mist. After unsuccessfully complaining to the casinos themselves, Plaintiff brought his concerns to the attention of multiple federal, state, county, and city agencies. (Id. at ¶¶ 9-13.) On February 11, 2005, Plaintiff filed a complaint about the casino emissions with Kenneth Eng, an employee of the United States Environmental Protection Agency ("EPA"). (Id. at ¶ 9.) As Plaintiff alleges in his Amended Complaint, on May 18, 2005, Mr. Eng dispatched two EPA employees to investigate the emissions alleged in Plaintiff's complaint. (Id.) The investigators conducted what Plaintiff claims was an inadequate investigation and issued "an inaccurate [and] false report" finding 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.)

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

Plaintiff also filed complaints about the casino emissions 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 sent its Principal Sanitary Inspector, Martin J. Connie, to investigate the emissions. (Id. at ¶ 13.) Plaintiff subsequently received a letter from Mr. Connie, dated November 2, 2005, informing him that the emissions did not present a health risk. (Id.)

According to Plaintiff, NJDHSS never responded to his complaint. (Id. at ¶ 11.)

B. Procedural History

Before filing suit in this action, Plaintiff brought a lawsuit in the Superior Court of New Jersey, Atlantic County against the Taj Mahal, the Showboat, and various parties associated with the two casinos, alleging multiple violations of New Jersey common law and various New Jersey statutes. These defendants' motions for summary judgment were granted and the state court action was ultimately dismissed.

On July 14, 2006, Plaintiff filed the instant action [Docket Item 1]. In his original Complaint, Plaintiff asserted claims premised on New Jersey tort law, alleging dereliction of duty (Count One), wrongful acts and omissions (Count Two), intentional infliction of emotional distress (Count Three) and declaratory judgment (Count Four). (Compl. ¶¶ 9-16.) Plaintiff originally named twenty-one governmental defendants -- the United States of America, the EPA, and Kenneth Eng (the "Federal Defendants"); the State of New Jersey, NJDEP, various NJDEP employees, NJDHSS, and NJDHSS Commissioner Dr. Fred Jacobs (the "State Defendants"); the Atlantic County Government, the Atlantic County Health Department, and various Atlantic County Health Department employees (the "County Defendants"); and the City of Atlantic City, the Atlantic City Health Department, and various Atlantic City Health Department employees (the "City Defendants").

After the State and City Defendants moved to dismiss for lack of subject matter jurisdiction, the Court permitted Plaintiff to amend his Complaint [Docket Item 37] to assert a claim premised upon federal law. The new claim alleges that the defendants "violated plaintiff's Civil Rights under the U.S. Constitution [and] Federal Law," citing "[42 U.S.C. § 1983], Conspiracy to Interfere with Civil Rights, Title VII, Age Discrimination, Title VIII, Older Americans Act, Title 33, Hazardous Substance Liability, Title V, Fiduciary Responsibilities, Liabilities & Penalties."*fn1 (Am. Compl. ¶ 17.) The Federal and State Defendants subsequently moved to dismiss.

On August 15, 2007, Plaintiff filed another Complaint with this Court, naming as defendants the BLPA Defendants named in this suit, additional individuals associated with the BLPA, the United States, the Department of Housing and Urban Development ("HUD"), and various HUD employees. See Schneider v. United States, et al., Civil Action No. 07-3887 (JBS) ("Schneider II"), dkt. item 1. On November 20, 2007, the Court wrote Plaintiff a letter informing him that the Court was unable to make its determination regarding whether to grant Plaintiff's request to proceed in forma pauperis under 28 U.S.C. § 1915(e)(2)(B) because Plaintiff's Complaint was unclear. Schneider II, dkt. item 2. In its letter, the Court directed Plaintiff as follows:

I ask that you amend your Complaint within fifteen (15) days of the entry of this letter order and clarify what happened to you, who inflicted what injuries on you, and what relief you are seeking. It is unclear to me what each Defendant ...

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