Palacio v. Cobb County Code Enforcement et al
Filing
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OPINION AND ORDER that the Complaint does not state a claim to relief that is plausible on its face and otherwise finds that the claims in the Complaint have little or no chance of success, and for these reasons, IT IS HEREBY ORDERED that Plaintiff's Complaint is DISMISSED pursuant to 28 U.S.C. § 1915(e)(2). Signed by Judge William S. Duffey, Jr on 3/14/2014. (mdy)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
HERIBERTO PALACIO, et al.,
Plaintiffs,
v.
1:14-cv-0218-WSD
COBB COUNTY CODE
ENFORCEMENT, and 58 PLACE,
L.L.C., et al.,
Defendants.
OPINION AND ORDER
This matter is before the Court on Plaintiff Heriberto Palacio’s (“Plaintiff”
or “Palacio”) “First Amendment Retaliation & Personal Injury & Tort Complaint”
(the “Complaint”) [3] for the Court’s required review for frivolity pursuant to
28 U.S.C. § 1915(e)(2)(B).1
I.
BACKGROUND
On February 3, 2014, Plaintiff, proceeding pro se, submitted his Complaint.
Plaintiff alleges a variety of conclusory claims against Defendants Cobb County
Code Enforcement and 58 Place, L.L.C. The Complaint contains a list of at least
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Plaintiff’s Application to Proceed In Forma Pauperis was approved by
Magistrate Judge Brill on February 3, 2014 [2].
fifteen (15) claims on the first and second pages.2 On page two (2), in a separate
paragraph, Plaintiff alleges that he was “subjected to violations of the Occupational
Safety and Health Act and the ongoing conspiracy to violate the Clean Air Act, the
Occupational Safety and Health Act, and other Federal, State and Local laws, Acts
and codes.” On the next three pages, he describes in a section entitled “FACTS”
various matters which can be summarized as follows:
1. Defendant 58 Place L.L.C. (“58 Place”) uses uncertified and
unlicensed contractors and did not have “legally required permits,
licenses, training and certifications needed to provide a safe and legal
workplace.”
2. Plaintiff responded to a maintenance job posting on Craigslist and
was hired by 58 Place as a maintenance tech. He was required to
perform hazardous work and was not given the free apartment he was
offered when he took the position, but offered instead a substandard
apartment that “was rat infested.”
3. He was assigned to work at an apartment complex different than
the one for which he was hired and where he expected to live.3
4. He was assigned later to “special project” at an abandoned
building, where he was instructed to demolish with a sledge hammer
tile walls in six bathrooms. While doing this work, he fell and injured
2
The Complaint pages are unnumbered.
Plaintiff mentions four (4) property locations in his “facts” section: 1794 James
Ray Drive, at which he apparently believed he would work when he was hired;
Dwell Villas, where he worked for some unspecified period of time; 750 Franklin
Road, where he provided help to the maintenance staff for another unspecified
period of time; and 526 Little St. SE, an abandoned building, where he worked on
a “special project.”
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his back. His attorney told him not to discuss his injury with
“Everett,” who appears to be a manager for 58 Place.
5. Cobb County Code Enforcement “knew of, and/or should have
know [sic] that [58 Place] was, and have been incessantly violating
the Cobb County Codes” which created a safety hazard.
Plaintiff appears to allege generally that: (1) 58 Place did not give him the job for
which he was hired and did not assign him to the location which he was promised;
(2) he and others were required to do hazardous work for which 58 Place was not
certified or licensed to perform; and (3) 58 Place and Cobb County Code
Enforcement knew of, and did not enforce, safety codes.
Plaintiff requests, as relief, “judicial solicitude,” “judicial review of the
constitutionality of any statute that would prevent Plaintiff from recovering
damages from Defendant Cobb County Code Enforcement,” an “injunction be
issued ordering Defendant Cobb County Code Enforcement to do a thorough
inspection of all properties owned or operated by Defendant 58 Place, L.L.C., their
affiliates, subsidiaries and parent companies, (within Cobb County),” and the same
for properties in DeKalb County. Plaintiff also requests damages in the amount of
$150,000 from 58 Place and $100,000 from Cobb County Code Enforcement.
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II.
DISCUSSION
A.
Legal Standard
A court must dismiss a complaint filed in forma pauperis if at any time the
court determines the action is frivolous or malicious or that it fails to state a claim
on which relief can be granted. 28 U.S.C. § 1915(e)(2)(B)(i)-(ii). “Failure to state
a claim under § 1915(e)(2)(B)(ii) is governed by the same standard as dismissal for
failure to state a claim under Fed. R. Civ. P. 12(b)(6).” Wilkerson v. H&S, Inc.,
366 F. App’x 49, 51 (11th Cir. 2010) (citing Mitchell v. Farcass, 112 F.3d 1483,
1490 (11th Cir. 1997)). Under this standard, “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. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Iqbal,
556 U.S. at 678 (citing Twombly, 550 U.S. at 556).
Review for frivolousness, on the other hand, “‘accords judges not only the
authority to dismiss a claim based on an indisputably meritless legal theory, but
also the unusual power to pierce the veil of the complaint’s factual allegations and
dismiss those claims whose factual contentions are clearly baseless.’” See Miller
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v. Donald, 541 F.3d 1091, 1100 (11th Cir. 2008) (quoting Neitzke v. Williams,
490 U.S. 319, 327 (1989)). A claim is frivolous when it “has little or no chance of
success,” that is, when it appears “from the face of the complaint that the factual
allegations are ‘clearly baseless’ or that the legal theories are ‘indisputably
meritless.’” Carroll v. Gross, 984 F.2d 392, 393 (11th Cir. 1993) (quoting Neitzke,
490 U.S. at 327).
Plaintiff filed his Complaint pro se. “A document filed pro se is to be
liberally construed, and a pro se complaint, however inartfully pleaded, must be
held to less stringent standards than formal pleadings drafted by lawyers.”
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citations and internal quotation marks
omitted). Nevertheless, a pro se plaintiff must comply with the threshold
requirements of the Federal Rules of Civil Procedure. See Beckwith v. Bellsouth
Telecomms. Inc., 146 F. App’x 368, 371 (11th Cir. 2005). “Even though a pro se
complaint should be construed liberally, a pro se complaint still must state a claim
upon which the Court can grant relief.” Grigsby v. Thomas, 506 F. Supp. 2d 26,
28 (D.D.C. 2007). “[A] district court does not have license to rewrite a deficient
pleading.” Osahar v. U.S. Postal Serv., 297 F. App’x 863, 864 (11th Cir. 2008).
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B.
Analysis
Liberally construing Plaintiff’s pro se Complaint, and piercing through his
undisciplined allegations to piece together the claims Plaintiff seeks to assert, the
Court considers the following claims to determine if they are frivolous.
1.
Failure to assign Plaintiff to the property and apartment he
expected.
Plaintiff alleges that he was promised a particular job, and a particular
apartment, at a certain location. This appears to be a claim for breach of contract.
Plaintiff does not allege that the claimed representations were made in writing.
In Georgia, employees are considered to work at will and an employer,
absent a written employment contract, may amend or terminate an employee’s
duties at the employer’s discretion. See Balmer v. Elan Corp., 599 S.E.2d 158,
160-161 (Ga. 2004). Here, Plaintiff does not allege that he entered into an
employment agreement. Plaintiff alleges only that he did not work where he was
told, when he was hired, that he would work. This does not constitute a breach of
contract under Georgia law. See id. at 161; see also Moore v. BellSouth Mobility,
534 S.E.2d 133 (2000) (oral promises as to future events are not enforceable by atwill employees and cannot provide grounds for a breach of contract claim).
Plaintiff next suggests that he was given a substandard apartment different
than the one he was told he would be offered. Even if he had a contract for the
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apartment—which he does not allege—it appears that he ultimately received the
apartment he wanted, and thus he cannot assert a claim based on the apartment.
2.
Hazardous work claim
It appears that Plaintiff claims he performed work in violation of the
Occupational Safety and Health Act (“OSHA”), 29 U.S.C. § 651 et seq. OSHA
does not create a private right of action for an employee to recover for alleged
OSHA violations. Rabon v. Automatic Fasteners, Inc., 672 F.2d 1231 (11th Cir.
1982). There is no basis for a claim based on alleged hazardous work.
3.
Claim for fall
Plaintiff claims that on January 14, 2014, he slipped on debris while
working, was treated at the hospital and thereafter returned to work. A doctor told
him to take one (1) day of rest and not to do heavy lifting for five (5) days.
When he returned to work,4 Plaintiff did not tell anyone that he had any
work restrictions and instead said that his lawyer told him not to discuss the
incident. Importantly, Plaintiff appears to allege an on-the-job injury and does not
allege any facts to support that he has a claim for an injury that is not foreclosed by
worker’s compensation insurance. In fact, he does not allege any conduct on the
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Plaintiff does not allege when after the injury he returned to work, but for the
purposes of this analysis, the Court assumes it was the same day the injury
occurred.
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part of his employer that relates in any way to the cause of his injury and this claim
has no basis.
4.
Claim to enforce code provisions
An individual does not have a private cause of action for alleged violations
of the Official Code of Cobb County and this claim also has no basis. See Official
Code of Cobb County, Georgia, § 2-101.
III.
CONCLUSION
Having considered Plaintiff’s pro se status and accepted the allegations of
the Complaint as true, the Court concludes that the Complaint does not state a
claim to relief that is plausible on its face and otherwise finds that the claims in the
Complaint have little or no chance of success, and for these reasons,
IT IS HEREBY ORDERED that Plaintiff’s Complaint is DISMISSED
pursuant to 28 U.S.C. § 1915(e)(2).
SO ORDERED this 14th day of March, 2014.
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