Opinion
Civil Action No. 3:03-CV-2589-D.
February 2, 2005
ORDER AND ORDER OF RE-REFERENCE
After making an independent review of the pleadings, files, and records in this case, and the August 27, 2004 findings, conclusions, and recommendation of the magistrate judge, the court concludes that the findings and conclusion are correct in part and therefore are adopted in part. Otherwise, the court re-refers this case to the magistrate judge for further proceedings consistent with this order. In doing so, the court notes that, if the federal claims are later dismissed as to all plaintiffs, only state-law claims will remain. Because there does not appear to be diversity of citizenship, the court in its discretion can opt not to hear the state-law claims. Nothing in this order requires the magistrate judge to devote attention to state-law claims that would be subject to dismissal if the federal claims are dismissed.
I
The court dismisses without prejudice for want of prosecution under Fed.R.Civ.P. 41(b) the actions of Vernell (Ford) Johnson, Tacola Coleman, Latonya Johnson, and Latoyia Johnson Although Latoyia Johnson submitted a motion for leave to proceed in forma pauperis, she failed to respond to the magistrate judge's supplemental questionnaire of June 10, 2004. Vernell (Ford) Johnson, Tacola Coleman, and Latonya Johnson neither responded to the supplemental questionnaire nor filed a motion for leave to proceed in forma pauperis. Moreover, Vernell (Ford) Johnson, Tacola Coleman, Latonya Johnson, and Latoyia Johnson have not filed objections to the magistrate judge's recommendation that their actions be dismissed.
The magistrate judge recommends that the claims of "Vernet Ford a/a Vernette (Ford) Johnson" be dismissed for want of prosecution. Mag. Rec. at 6. It appears that the magistrate judge intended to refer to Vernell (Ford) Johnson, because the court dismissed the action of Vernet Ford in a judgment filed May 24, 2004.
The court declines to dismiss Linda Martin's claims for want of prosecution because, after the magistrate judge filed his findings, conclusions, and recommendation, Martin responded to the magistrate judge's supplemental questionnaire, thereby evincing her intent to prosecute her case.
The court also declines to dismiss the claims of Sharon Ferguson and Debbie Ferguson. Although they failed to respond to the magistrate judge's supplemental questionnaire of June 10, 2004, they submitted motions for leave to proceed in forma pauperis, and they joined the objections filed September 10, 2004 to the magistrate judge's recommendation. Because they have taken actions to prosecute their claims, and because dismissing their actions without prejudice for want of prosecution could effectively be a dismissal with prejudice because a subsequent lawsuit would be time-barred, see Long v. Simmons, 77 F.3d 878, 880 (5th Cir. 1996) (Rule 41(b) case), the court concludes that they should be given another opportunity to comply with the magistrate judge's directives. A dismissal with prejudice is reserved only for those cases in which there is a "failure to comply with [a] court order [and the failure] was the result of purposeful delay or contumaciousness and the record reflects that the district court employed lesser sanctions before dismissing the action." Id.
Although the court declines to dismiss the claims of Sharon Ferguson and Debbie Ferguson, it agrees with the magistrate judge that their motions for leave to proceed in forma pauperis should be denied. See Mag. Rec. at 6 n. 5. Neither qualifies financially for this status. Accordingly, the court directs that, within 30 days of the date this order is filed, Sharon Ferguson and Debbie Ferguson each pay the $150.00 statutory filing fee. If they fail to do so, their actions will be dismissed without prejudice.
Although under the Omnibus Appropriations Act of 2005 the filing fee has been raised to $250 effective February 7, 2005, the court will apply the fee in effect on the date plaintiffs filed suit.
II
This action is before the court at the § 1915 screening stage, and it may be dismissed if it is frivolous or fails to state a claim on which relief may be granted. See 28 U.S.C. § 1915(e)(2)(B)(i) and (ii). It is also before the court for § 1915A screening, because several plaintiffs are prisoners. 28 U.S.C. § 1915A(b)(i), like 28 U.S.C. § 1915(e)(2)(B)(i) and (ii), permits dismissal where a complaint is frivolous or fails to state a claim on which relief may be granted. An action is frivolous if it lacks an arguable basis in either law or fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Henson-El v. Rogers, 923 F.2d 51, 53 (5th Cir. 1991). A complaint is without an arguable basis in law if it is grounded upon an untenable or discredited legal theory. See id. at 325; Richardson v. Spurlock, 260 F.3d 495, 498 (5th Cir. 2001). A claim lacks an arguable basis in fact only if based on factual allegations that are clearly fanciful or delusional in nature. Denton v. Hernandez, 504 U.S. 25, 32-33 (1992).In addressing plaintiffs' individual causes of action, the magistrate judge correctly recognized that 42 U.S.C. § 7401 does not create a cause of action against a putative air polluter. The Clean Air Act, however, of which § 7401 is a part, does provide for citizen suits. See 42 U.S.C. § 7604. Nevertheless, a plaintiff may not pursue damages under the Act. See Maysonet v. Drillex, 229 F.Supp.2d 105, 109 (D.P.R. 2002) (holding that plaintiffs did "not have a right to claim damages under the Clean Air Act[.]"); Gutierrez v. Mobil Oil Corp., 798 F. Supp. 1280, 1285 (W.D. Tex. 1992) ("The only remedies provided by the Clean Air Act, pursuant to 42 U.S.C. § 7604, are to obtain enforcement of the standards promulgated pursuant to the Act or to have the court impose civil penalties against violators of such standards. Any civil penalties imposed under this section do not go to the plaintiffs[.]" (citation omitted)). Because the relief plaintiffs seek is limited to damages, they may not pursue their action under the Clean Air Act, the claim lacks an arguable basis in law, and it is dismissed as frivolous.
III
The court also agrees with the magistrate judge that plaintiffs cannot bring a claim under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 ("CERCLA"), 42 U.S.C. § 9601, et seq. "CERCLA is not a general vehicle for toxic tort claims." Young v. United States, ___ F.3d ___, ___, 2005 WL 15463, at *2 (10th Cir. Jan. 4, 2005) (citing, inter alia, Gussack Realty Co. v. Xerox Corp., 224 F.3d 85, 91 (2d Cir. 2000) (per curiam), noting parenthetically that the case explains that "CERCLA does not provide compensation to a private party for damages resulting from contamination.")). Rather, "CERCLA authorizes private parties to bring civil actions to recover necessary costs associated with the cleanup of hazardous waste from those responsible for creating such wastes." Gray v. Murphy Oil USA, Inc., 874 F. Supp. 748, 752 (S.D. Miss. 1994); see Young, ___ F.3d at ___, 2005 WL 15463, at *2 (recognizing that "the twin aims of CERCLA are to cleanup hazardous waste sites and impose the costs of such cleanup on parties responsible for the contamination."); Holloway v. Gaylord Chem., 922 F. Supp. 1154, 1158, 1160 (E.D. La. 1996) (observing that "[t]hose private parties entitled to recover their costs [under CERCLA] are those parties who engaged in cleanup," and noting that plaintiffs did not "plead any facts tending to show their individual involvement in any cleanup effort."). Plaintiffs have not alleged that they incurred costs associated with an environmental cleanup. Thus any claim they may assert to recover damages under CERCLA for injuries unrelated to expenses they incurred in association with an environmental cleanup is dismissed as frivolous or on the ground that it fails to state a claim on which relief may be granted.
IV
Although plaintiffs complain that defendants conspired to "[c]onceal the nature of the [p]laintiffs' injuries [caused from exposure] to `[l]ead, [a]rsenic, [c]admium, and [a]sbestos,'" Am. Compl. at 4, it is unclear whether they are relying on federal and/or state law. Nevertheless, under federal and Texas law a conspiracy claim must be based on more than just conclusory allegations. See McAfee v. 5th Circuit Judges, 884 F.2d 221, 222 (5th Cir. 1989); Hale v. Harney, 786 F.2d 688, 690 (5th Cir. 1986); Spurlock v. Johnson, 94 S.W.3d 655, 658 (Tex.App. 2002, no pet.). Neither plaintiffs' amended complaint nor their objections to the magistrate judge's recommendation contain direct or circumstantial facts that support the existence of a conspiracy among the defendants. Therefore, plaintiffs' conspiracy claim is dismissed for failure to state a claim upon which relief may be granted.
V
The magistrate judge recommends that the claims of plaintiffs Larry Lee Martin, Freddrick Johnson, Cleo Ferguson, Mcyril Javon Henderson, and Sallie Marie Martin Alexander be dismissed under 28 U.S.C. §§ 1915(e)(2)(B)(i) and (ii) and 1915A(b)(1) as time-barred. The court declines to adopt this component of the recommendation.
A
Integral to the question whether these plaintiffs' claims are barred by limitations is the determination of when they accrued. Childs v. Haussecker, 974 S.W.2d 31 (Tex. 1998), and Nugent v. Pilgrim's Pride Corp., 30 S.W.3d 562 (Tex.App. 2000, pet. denied), guide this decision.
The analysis that follows is intended to apply in the context of screening under §§ 1915 and 1915A, and is not intended to foreclose defendants — if summonses are later issued in this case or litigation takes place in state court — from raising the affirmative defense of limitations or from asserting arguments that call this reasoning into question.
In Childs the Texas Supreme Court considered "the correct formulation and application of the discovery rule in the latent occupational disease context." Id. at 33. Specifically, the court considered the cases of two plaintiffs who had developed the disease silicosis, which "results from `occupational exposure to and inhalation of silica dust over a period of years' and is `characterized by a slowly progressive fibrosis of the lungs.'" Id. at 33-34 (quoting Seedman's Medical Dictionary 1422 (25th ed. 1990)). The court agreed with the parties that the discovery rule governs these types of cases and stated that "[c]ompelling reasons explain why most courts have chosen to apply the discovery rule in these cases. . . ." Id. at 37-38. The court explained that "[u]nlike traumatic injury cases, a plaintiff who suffers from a latent injury or disease typically does not and cannot immediately know about the injury or its cause because these injuries often do not manifest themselves for two or three decades following exposure to the hazardous substance." Id. at 38. It reasoned that
even when symptoms do arise that make the fact of injury objectively verifiable, the injury and its etiology are difficult to diagnose and ascertain because of the lengthy latency period, the many potential causes of the specific symptoms, and some physicians' lack of education and experience in identifying occupational diseases.Id. The court explained the proper application of the discovery rule in latent occupational disease cases, and it adopted this rule:
a cause of action accrues [in such cases] whenever a plaintiff's symptoms manifest themselves to a degree or for a duration that would put a reasonable person on notice that he or she suffers from some injury and he or she knows, or in the exercise of reasonable diligence should have known, that the injury is likely work-related.Id. at 33. The court's consideration of the parties' arguments gives further guidance on how this rule is to be applied:
the accrual of a cause of action is not dependent on a confirmed medical diagnosis; a plaintiff whose condition has not yet been affirmatively diagnosed by a physician can have or, in the exercise of reasonable diligence could have, access to information that requires or would require a reasonable person to conclude he likely suffers from a work-related illness. But even if the plaintiff lacks such information, his or her cause of action will nevertheless accrue if the absence of due diligence is responsible for the deficiency.Id. at 42 (citation omitted). The court also held that
a latent occupational disease cause of action should not be deemed to accrue absent some objective verification of a causal connection between injury and toxic exposure, provided that the failure to obtain that verification is not occasioned by a lack of due diligence. Accordingly, a diligent plaintiff's mere suspicion or subjective belief that a causal connection exists between his exposure and his symptoms is, standing alone, insufficient to establish accrual as a matter of law.Id. at 43.
In Nugent the court considered plaintiffs' claims that they had suffered personal injuries from, inter alia, defendant's operations on a farm adjoining the plaintiffs' farm, which included the "dumping of noxious and toxic chemicals and chicken waste[.]" Nugent, 30 S.W.3d at 565. The defendants disposed of chicken litter and hatchery waste on a hillside located above a creek that ran from the defendant's farm onto the plaintiffs' property. Id. With the fall of heavy rain in May 1991, silt and chicken waste washed onto plaintiffs' property and, that summer, several of plaintiffs' cattle became sick and died. Id. at 566. The plaintiffs tested their soil and found increased amounts of arsenic and selenium. Id. In September 1992 plaintiffs "saw a truck dump an oily substance in a pit uphill from their farm," and tests confirmed "high concentrations of toxic chemicals" and bacteria. Id. Heavy rains again caused both the pit contaminants and other waste to flow onto the plaintiffs' land. Id. Additionally, there was evidence that a feed mill the defendants operated discharged airborne contaminants that eventually drifted onto plaintiffs' farm. Id. In 1994 one of the plaintiffs, Susan Nugent, was diagnosed with cancer. Id. Initially, her diagnosis was not linked to exposure to harmful substances. Id. at 566, 571. Plaintiffs filed suit against the defendants in August 1994. Id. at 566. Later, Mrs. Nugent and her husband were both diagnosed with another medical condition. Id. at 571. Three years after Mrs. Nugent's cancer diagnosis, a doctor told her the cancer was probably caused by "the contaminants in the air and pasture where she worked[.]" Id. The same physician also stated that her and her husband's other medical conditions were likely "caused by their exposure to the contaminants that had polluted their farm." Id. Defendants moved for summary judgment based on several grounds, including limitations, and the trial court granted the motion. Id. at 566.
Defendants argued on appeal that plaintiffs' personal injury claims were time-barred "because the [plaintiffs] discovered their first actionable injury in May of 1991 but did not file suit until [August of 1994]." Id. at 571. Plaintiffs invoked the discovery rule, "insisting that their injuries are not traumatic but latent diseases, inherently undiscoverable within two years of the first massive contamination of their property." Id. The court characterized the lawsuit as a "latent injury contamination case" and extensively discussed the Texas Supreme Court's decision in Childs. Id. at 572-74. The court quoted Childs for the proposition that "a latent occupational disease cause of action should not be deemed to accrue absent some objective verification of a causal connection between injury and toxic exposure, provided that the failure to obtain that verification is not occasioned by a lack of due diligence." Id. at 574 (quoting Childs, 974 S.W.2d at 43). Ultimately, the court held that the plaintiffs' personal injury claims were not time-barred because the summary judgment evidence showed they were unaware "of any of their contamination-related illnesses before 1994," and they filed their suit in the same year. Id.
B
As in Childs and Nugent, plaintiffs' alleged injuries stemming from exposure to harmful substances such as lead appear to be properly characterized as latent injuries, and the application of the rule set out in Childs to their personal injury claims is appropriate. The court declines to dismiss the personal injury claims of Freddrick Johnson, Cleo Ferguson, Mcyril Javon Henderson, and Sallie Marie Martin Alexander on limitations grounds at the screening stage, because factual issues exist as to when their claims accrued.Although Freddrick Johnson states that he was seen by a medical care provider or licensed medical practitioner in July 1987 or 1988, when asked to state the exact or approximate date when he suffered any injury or experienced symptoms that he believed occurred as a result of the smelting activities in West Dallas, he responded, "March 7, 2002." Under the reasoning of Childs and Nugent, it is possible that the limitations period did not start until at least that time. Both the complaint and amended complaint were filed within two years of that date.
For similar reasons, it is not clear that Cleo Ferguson's claims are barred by limitations. In his response to the magistrate judge's supplemental questionnaire, when asked to state the exact or approximate date that he suffered any injury or experienced symptoms, he responded, "February 18, 2002." The complaint and amended complaint were both filed within two years of that date.
C
The responses of Sallie Marie Martin Alexander and Mcyril Javon Henderson to the magistrate judge's questionnaire indicate that they have experienced symptoms for a number of years that they attribute to the smelting activities in West Dallas. The magistrate judge states in his recommendation that "the possible injuries which emissions from the smelter could cause were documented in 1980 and 1982 followed by a later study in 1993." Mag. Rec. at 4. Although plaintiffs' complaint does refer to Environmental Protection Agency studies, it is not clear from the pleading alone whether these studies articulated the symptoms of exposure to lead, such that these plaintiffs would reasonably have been put on notice that their injuries were caused by increased lead exposure, i.e., that there was an objective verification of the causal connection between the injury and their exposure to lead. Newspaper articles attached to plaintiffs' objections to the magistrate judge's recommendation, however, do at times identify symptoms. And it may be that it will ultimately be shown that these plaintiffs knew or should have known that their injuries were caused by lead contamination. At the screening stage, however, and based on the present record, the court is unable to conclude that the actions of these plaintiffs are time-barred.
In addressing the magistrate judge's recommendation, the court has considered only how Texas law governs the accrual of plaintiffs' claims. If plaintiffs are attempting to allege federal-law claims that are not otherwise resolved by this order, the determination of when the claims accrued for limitations purposes is determined by federal law. See, e.g., Jensen v. Snellings, 841 F.2d 600, 606 (5th Cir. 1988) (when court borrows "the applicable limitations period from state law, the determination of when that limitations period begins to run is governed by federal law.").
D
The court holds that Larry Lee Martin's personal injury claims are barred by limitations. In Texas, a two-year statute of limitations applies to personal injury claims. See Tex. Civ. Prac. Rem. Code § 16.003 (Vernon 2002); Weiner v. Wasson, 900 S.W.2d 316, 321 n. 6 (Tex. 1995). In his affidavit attached to his objections to the magistrate judge's recommendation, Martin explains that he discovered the cause and the parties responsible for his injuries on October 10, 2000. Thus any claim that Martin had for personal injuries accrued as of that date. Plaintiffs did not file their complaint until October 22, 2003, over three years after Martin's cause of action accrued. Martin contends that the statute of limitations was tolled because defendants concealed their negligent and reckless conduct from plaintiffs. This objection is misplaced with respect to his personal injury claims, because it does not overcome the fact that he waited over three years to file suit after he discovered the cause of his injuries. Accordingly, any claims that Martin asserts for personal injuries are dismissed as frivolous because they are time-barred.VI
Although the magistrate judge limited his discussion of plaintiffs' claims to the action for conspiracy and their mention of congressional findings set out in 42 U.S.C. § 7401 and provisions of CERCLA, the court must read plaintiffs' pro se complaint liberally. The court concludes that plaintiffs may be attempting to assert other causes of action, including claims for negligence, trespass, and nuisance. See Am. Compl. at 2, ¶ 4, and 7, ¶ 11 (alleging that "[d]efendants [c]oncealed, [n]egligently [c]ontributed, [k]nowingly [c]onspired and [n]egligently [e]xposed the [p]laintiffs to `[l]ead, [a]rsenic, [c]admium and [a]sbestos," and asserting that "[p]laintiffs also allege Common Law Nuisance, and Trespass, unspecified `tortious acts' and Environmental Racism and Classism."). The inclusion of a trespass claim indicates that plaintiffs may not be attempting to recover only for personal injuries. Additionally, the legal claims plaintiffs are attempting to assert by alleging claims for "unspecified `tortious acts'" and "environmental racism and classism" are unclear.
VII
Accordingly, the court re-refers the actions of Larry Lee Martin, Sallie Marie Martin Alexander, Linda Martin, Freddrick Johnson, Cleo Ferguson, Sharon Ferguson, Mcyril Javon Henderson, Debbie Ferguson, and Daniel Martin to the magistrate judge for further proceedings. If necessary, the magistrate judge may conduct additional Spears-type proceedings to determine the factual bases for, and the potential validity of, these plaintiffs' potential remaining claims and whether plaintiffs are seeking damages for injuries other than personal injuries.
Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985).
He may also decide to order that summonses be issued to some or all defendants without making any additional recommendations to the court.
The court notes that its jurisdiction appears to be based on the presence of federal questions. The parties are not completely diverse citizens. It is possible that the magistrate judge will conclude on re-reference that plaintiffs lack any viable federal-law claim. If so, he may recommend that those claims be dismissed under 28 U.S.C. §§ 1915(e)(2)(B)(i) and (ii) and 1915A(b)(1) without reaching potential state-law claims. "[W]hen all federal claims are dismissed or otherwise eliminated from a case prior to trial, [the Fifth Circuit has] stated that [its] `general rule' is to decline to exercise jurisdiction over the pendent state law claims." McClelland v. Gronwaldt, 155 F.3d 507, 519 (5th Cir. 1998) (citing Wong v. Stripling, 881 F.2d 200, 204 (5th Cir. 1989)), overruled on other grounds by Arana v. Ochsner Health Plan, 338 F.3d 433, 440 (5th Cir. 2003) (en banc). The court is inclined to do so here, leaving plaintiffs to press state-law claims in state court if all their federal claims are dismissed.
Within 30 days of the date this order is filed, Sharon Ferguson and Debbie Ferguson must each pay the $150.00 statutory filing fee. If they fail to do so, their actions will be dismissed without prejudice.
The court dismisses without prejudice the claims of Vernell (Ford) Johnson, Tacola Coleman, Latonya Johnson, and Latoyia Johnson for want of prosecution. A Rule 54(b) judgment is filed as to these plaintiffs today.
SO ORDERED.