Smith v. United Industries Ultra Board

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

FAYETTEVILLE DIVISION

VANESSA C. SMITH PLAINTIFF

v. Civil No. 5:23-cv-05221-TLB-CDC

UNITED INDUSTRIES ULTRA BOARD DEFENDANT

REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE

Plaintiff, Vanessa C. Smith (“Smith”), filed this action alleging she suffered personal injury

on December 4, 2019, when she was exposed to smoke and fumes during an industrial fire

occurring at Defendant’s facility1 where she was working at the time. Smith proceeds pro se and

in forma pauperis (“IFP”).

Pursuant to the provisions of 28 U.S.C. §§ 636(b)(1) and (3), the Honorable Timothy L.

Brooks, United States District Judge, referred this case to the undersigned for the purpose of

making a Report and Recommendation. The case is before the Court for preservice screening of

the Complaint (ECF No. 2) under 28 U.S.C. § 1915(e)(2).

I. BACKGROUND

Smith alleges the Court has federal question jurisdiction pursuant to the “Environmental

Protection Center, Air, Land Water Quality, Environmental reaction Land, Air Quality.” (ECF

No. 2 at 4). In her statement of the claim, she writes: “Statement of non-responsibility of

Insurance Carrier.” Id. at 5. As relief, Smith states she is diseased and seeking disability. Id.

1 According to its website, the company is “a sign industry leader in foam core board

manufacturing.” https://ultraboard.com

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at 6. She then references attached medical documentation. Id. The remainder of this document

consists of information regarding checks disbursed to Smith from LF Staffing Services, Inc.,

located in Springdale, Arkansas. Id. at 7-15.

Smith’s first supplement to the Complaint (ECF No. 5) consists of 577 pages of material.

It is in the supplement that the Court can first discern the facts of Smith’s claim. The first page

contains a letter from the insurance carrier for Defendant to Smith’s counsel. Id. at 1. The letter

denies the policy holder has any legal responsibility and states the fire inspector had determined

that “a failure of the electrical components located at the top of the power poles (owned by the

City of Bentonville) caused burning debris to fall onto the insured’s property causing the fire to

ignite.” Id. The date of the loss is listed as December 4, 2019. Id.

In an attached letter from her attorney, the Court learns that Smith made a claim “for

injuries she suffered on December 4, 2019[,] due to her exposure to smoke and chemical fumes

caused by the fire at United Industries in Bentonville, Arkansas.” (ECF No. 5 at 52). Smith was

seen at Northwest Medical Center of Bentonville on December 4, 2019, for a major allergic

reaction. Id. at 89, 98, 101. Note was also made that Smith suffered from chronic obstructive

pulmonary disease (COPD) which was acutely exacerbated by the incident. Id. at 188. The

remaining pages, among other things, cover unrelated medical visits. The second supplement

contains Internal Revenue Service documentation including transcripts of tax returns, medical

records, unemployment compensation records, records from LF Staffing Services, and Social

Security records. (ECF No. 6 at 1-89).

II. APPLICABLE STANDARD

The Court must dismiss a complaint, or any portion of it, if it contains claims that: (1) are

frivolous or malicious; (2) fail to state a claim upon which relief may be granted, or (3) seek

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monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B)(i-

iii).

A claim is frivolous if “it lacks an arguable basis either in law or fact.” Neitzke v.

Williams, 490 U.S. 319, 325 (1989). An action is malicious when the allegations are known to be

false, or it is undertaken for the purpose of harassing or disparaging the named defendants rather

than to vindicate a cognizable right. Spencer v. Rhodes, 656 F. Supp 458, 464 (E.D.N.C. 1987);

In re Tyler, 839 F.2d 1290, 1293-94 (8th Cir. 1988). A claim fails to state a claim upon which

relief may be granted if it does not allege “enough facts to state a claim to relief that is plausible

on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “In evaluating whether a pro

se plaintiff has asserted sufficient facts to state a claim, we hold ‘a pro se complaint, however

inartfully pleaded ... to less stringent standards than formal pleadings drafted by lawyers.’”

Jackson v. Nixon, 747 F.3d 537, 541 (8th Cir. 2014) (quoting Erickson v. Pardus, 551 U.S. 89, 94

(2007)). However, even a pro se Plaintiff must allege specific facts sufficient to support a claim.

Martin v. Sargent, 780 F.2d 1334, 1337 (8th Cir. 1985).

III. DISCUSSION

“Courts have an independent obligation to determine whether federal subject matter

jurisdiction exists.” Hertz Corp. v. Friend, 559 U.S. 77, 94 (2010). “Federal courts are courts

of limited jurisdiction. The requirement that jurisdiction be established as a threshold matter

springs from the nature and limits of the judicial power of the United States and is inflexible and

without exception.” Kessler v. Nat’l Enters., Inc., 347 F.3d 1076, 1081 (8th Cir. 2003) (citation

and internal quotation marks omitted).

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Liberally construing Smith’s claim to be one that Defendant’s plant emitted noxious fumes

when the fire occurred, no claim exists under the Clean Air Act (“CAA”). The CAA’s citizen

suit provision provides that a suit may be brought against any person, who is alleged to have

violated, or be in violation of, “an emission standard or limitation under this chapter” or “an order

issued by the Administrator2 or a State with respect to such standard or limitation.” 42 U.S.C. §

7604(a). Subsection (b) requires that notice be given to the Administrator, the State in which the

violation occurs, and the alleged violator sixty days prior to the commencement of the action. 42

U.S.C. § 7604(b).3 An emission standard or limitation is defined as “(1) a schedule or timetable

of compliance, emission limitation, standard of performance or emission standard” . . . (3) “any

condition or requirement of a permit” or “implementation plan relating to transportation control

measures, air quality maintenance plans” or (4) “any other standard, limitation, or schedule

established under any permit.” 42 U.S.C. § 7604(f); see also Sierra Club, et al., v. Entergy

Arkansas, LLC, 503 F. Supp. 3d 821, 841 (E.D. Ark. 2020).

Smith has made no allegation that Defendant’s emissions were in violation of the EPA’s

national ambient air quality standards, the State’s standard, or any permit emission limitations

placed on the facility. 42 U.S.C. § 7475(a)(1); see also Nucor Steel-Arkansas v. Big River Steel,

LLC, 825 F.3d 444 (8th Cir. 2016). And, in any event, any emissions were the result of a fire not

planned plant emissions. What Smith is attempting to do is elevate a run of the mill personal

injury action into a federal question.

2 The Environmental Protection Agency.

3 The statute sets forth certain exceptions, not applicable here, to the notice requirement.

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Clearly, the Court also lacks diversity jurisdiction over this dispute as both Smith and the

Defendant are citizens of Arkansas. 28 U.S.C. § 1332; Buckley v. Control Data Corp., 923 F.2d

96, 97 n.6 (8th Cir. 1991) (complete diversity of citizenship must exist).

IV. CONCLUSION

For these reasons, it is recommended that this case be DISMISSED for failure to state a

claim under 28 U.S.C. § 1915(e)(2).

The parties have fourteen (14) days from receipt of the Report and Recommendation

in which to file written objections pursuant to 28 U.S.C. § 636(b)(1). The failure to file

timely objections may result in waiver of the right to appeal questions of fact. The parties

are reminded that objections must be both timely and specific to trigger de novo review by

the district court.

DATED this 17th day of January 2024.

s/ Christy Comstock

CHRISTY COMSTOCK

UNITED STATES MAGISTRATE JUDGE

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