NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

___________ No. 11

- 3320

___________ JACQUELYN B. N'JAI , Appellant

v. PIITSBURGH BOARD OF PUBLIC EDUCATION; IMANI CHRISTIAN ACADEMY; NAACP; ATTORNEY MILTON RAIFORD, JR.; MARILYN BARNETT; SHERICE COLES; MAISHA JOHNSON; JASON WASHINGTON; DERRICK TURNER

____________________________________ On Appeal from the United States District Court for the Western District of Pennsylvania (D.C. Civil Action No. 10

- cv - 01323 ) District Ju dge: Honorable Nora Barry Fischer

____________________________________ Submitted Pursuant to Third Circuit LAR 34.1(a)

June 1, 2012 Before: CHAGARES, VANASKIE and BARRY, Circuit Judges

(Opinion filed : June 6, 2012 )

___________ OPINION

___________ PER CURIAM
Jac quelyn B. N = Jai, proceeding pro se, appeals an order of the United States District Court for the Western District of Pennsylvania dismissing her complaint brought2

against the Pittsburgh Board of Public Education (“the Board”)

. 1 We will affirm the judgment of the District Court

. In 2001, N‟Jai was terminated from her employment as a teacher for the B oard

. S he applied for and was granted retirement benefits from the Public School Employees‟ Retirement System (“PSERS”)

. Those benefits were deposited direct ly into N‟Jai ‟s bank

account. On several occasio ns between 2007 and 2010, PSERS‟s attempts to contact N‟Jai by mail were returned as undeliverable. Because PSERS believed that it did not have N‟Jai‟s correct mailing address, it withheld two direct deposi t payments. When N‟Jai discovered that the payments had been withheld, she contacted PSERS and provided her current address. Thereafter, the withheld payments were deposited into N‟Jai‟s bank account.
In her amended co mplaint, N‟Jai claimed that the Board repeatedly provided PSERS with her incorrect mailing address information. She alleged that this action violated her rights under the Privacy Act, 5 U.S.C. §552a, and caused an intentional infliction of emotional distress. During the proceedings in the District Court, N‟Jai requested that Judge Nora Barry Fischer recuse herself . N‟Jai ‟s request was based on complaints that Judge Fischer had ruled against her in a previous case and that a deputy in Judge Fischer‟s chambers had improper ex parte conta ct with the NAACP‟s attorney

1 N‟Jai also named as defendants the NAACP and the Imani Christian Academy, as well as several of the Ac ademy‟s employees. Following mediation, those defendants were dismissed with prejudice pursuant to a stipulation. See Fed. R. Civ. P. 41(a)(1)(A)(ii). N‟Jai does not challenge this dismissal on appeal.3

concerning the status of a responsive pleading

. Judge Fischer denied the request, explaining on the record that N‟Jai had prior opportunities to seek recusal, that she had failed to adequately support the request with an affid avit , and that the allegedly improper communicati on between chambers and counsel was “routine practice in this courthouse. ” Although Judge Fischer denied the request without prejudice to N‟Jai filing a recusal motion and supporting affidavit, she failed t o do so. The Board filed a motion to dismiss , which the District Court granted

. The District Court dismissed the Privacy Act claims with prejudice, holding that the Act applies only to federal agencies, not to political subdivisions of Pennsylvania , suc h as the Board

. With respect to N‟Jai‟s intentional inflict ion of emotional distress claim , the District Court held that the Board was immune from liability under the Pennsylvania Political Subdivision Tort Claims Act , 42 Pa. Cons. Stat. Ann. § 8541, that its alleged conduct in provid ing an incorrect address to PSERS was not “outrageous,” and that N‟Jai did not suffer any physical harm. 2 The District Court further concluded that granting leave to amend the complaint would be futile . N‟ Jai appealed.

2 The District Court stated that it dismissed the intentional infliction of emotional distress claim without prejudice to N‟Jai pursuing that claim in state court, “as this Court declines to retain jurisdiction . . . .” To the extent that N‟Jai challenges this determination, we conclude that the Distric t Court acted with in its discretion. See Elkadrawy v. Vanguard Group, Inc. , 584 F.3d 169, 174 (3d Cir. 2009) ( “A district court may decline to exercise supplemental jurisdiction over a claim if „the district court has dismissed all claims over which it has original jurisdiction.‟ ” (quoting 28 U.S.C. § 1367(c)(3)) ).4

We have jurisdiction pursuant to 28 U.S.C. § 1291, and our review is plenary. Dique v. N.J. State Police , 603 F.3d 181, 188 (3d Cir. 2010). To survive a motion to dismiss, “„a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.‟” Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009) (quoting Bell Atl. v. Twombly , 550 U.S. 544, 570 (2007)). We review the District Judge‟ s decision not to recuse for abuse of discretion. Securacomm Consulting, Inc. v. Securacom Inc. , 224 F.3d 273, 278 (3d Cir. 2000). The District Court properly dismissed N‟Jai‟ s Privacy Act claim

. Congress enacted the Privacy Act “to protect the privacy of individuals identified in government information systems by regulating the collection, maintenance, use and dissemination of personal information and prohibiting unnecessary and excessive exchange of such information within the government and to outside individuals.” Cochran v. United
States , 770 F.2d 949, 954 (11th Cir. 198 5). The Privacy Act also created private causes of action

. 5 U.S.C. § 552a(g)(1). Importantly, however, there is no private cause of action under the Privacy Act against a municipal or state agency

. Pennyfeather v. Tessler , 431 F.3d 54, 56 & n. 1 (2d Ci r. 2005) (recognizing that P rivacy Act, by incorporating defi nitions of “agency” found in Freedom of Information Act and Administrative Procedures Act, “applies only to federal government agencies”). Therefore, we conclude that the District Court properly dismissed N‟Jai‟s Privacy Act claims against the Board.5

In addition, N‟Jai did not state a claim for intentional infliction of emotional distress. Such a claim requires, “ at the least, [a demonstration of] intentional outrageous or extreme conduct by th e defendant, which causes severe emoti onal distress to the plaintiff. ” Swisher v. Pitz , 868 A.2d 1228, 1230 (Pa. Super. Ct. 2005) . Moreover, “a plaintiff must suffer some type of resulting physical harm due to the defendant‟s outrageous conduct.” Id. ; s ee also Reedy v. Evanson , 615 F.3d 197, 231 (3d Cir. 2010) (discussing the state of the law in Pennsylvania regarding intentional infliction of emotional distress claims). Here, N‟Jai alleged that the Board provided incorrect address information to PSERS, resulting in two delayed retirement benefit payments. While this conduct may have resulted in an inconvenience to N‟Jai, it is simply not sufficiently outrageous to sustain a claim of intentional infliction of emotional distress

. Clark v. Twp. of Falls , 890 F.2d 611, 623 (3d Cir. 1989) (noting that “courts have found intentional infliction of emotional distress only where the conduct at issue has been atrocious and utterly intolerable in a civilized community.” (internal quotation marks omitted) ); cf. Co x v. Keystone Carbon Co. , 861 F.2d 390, 395 (3d Cir. 1988) (holding that “ it is extremely rare to find conduct in the employment context that will rise to the level of outrageousness necessary to provide a basis for recovery for the tort of intentional in f

liction of emotional distress.”). Finally, we conclude that the District Court did not abuse its discretion in denyin g N‟Jai‟s request for recusal. Under 28 U.S.C. § 144, a judge must recuse if a party files a “sufficient affidavit” establishing that t he judge has a personal bias or prejudice against6

the party seeking recusal, or in favor of the adverse party. 28 U.S.C. § 144; see also Jones v. Pittsburgh Nat‟ l Corp. , 899 F.2d 1350, 1356 (3d Cir. 1990). A ju dge must also recuse where the judge‟ s impar tiality “might reasonably be questioned.” 28 U.S.C. § 455(a). A party seeking recusal need not demonstrate that the judge is actually biased,
but rather that s he would appear to be biased to “a reasonable person, with knowledge of all the facts.” United States v. Wecht , 484 F.3d 194, 213 (3d Cir. 2007) (quoting In re Kensington Int‟l Ltd. , 353 F.3d 211, 220 (3d Cir. 2003)). N‟Jai alleged that Judge Fischer was biased because she had ruled against her in a previous case

. We have held, however, that a n u nfavorable ruling is not a basis for recusal. Securacomm Consulting,
Inc. , 224 F.3d at 278

. In addition, recusal was not warranted based on the inquiry from a deputy in Judge Fischer‟s chambers to an attorney for the NAACP regarding the status of a plead ing

. Cf. In re Kensington Int‟l . Ltd. , 368 F.3d 289 , 305 (3d Cir. 2004) ( “ We do not hold that ex parte communications alone− in the abse nce of any conflict of interest− require recusal. ” ). We also agree that N‟Jai‟s allegations of bias, made several months after Judge Fischer was assigned to the case and presented without a supporting affidavit, failed to s atisfy the requisite procedural requirements. United States v. Rosenberg , 80 6 F.2d 1169, 1173 (3d Cir. 1986) (holdin g that a recusal motion under § 144 “must be timely filed, contain a good faith certificate of counsel, and include an affidavit stating m aterial facts with particularity which, if true, would lead a reasonable person to the conclusion that the district judge harbored a special bias or pr ejudice7

towards [the movant] .”). Therefore, after careful review of the record, we conclude that there w as no abuse of discretion in the denial of N‟Jai‟s request for recusal

. For the foregoing reasons, we will affirm the judgment of the District Court

. 3

3 N‟Jai‟s Motion to Exceed Page/Word Limitations is granted in light of the recency of our Standing Order of January 9, 2012. The Clerk is directed to provide a copy of that order to N‟Ja i.