Lundgren v. Occupational Safety and Health Administration et al

Filing 54

Judge Nathaniel M. Gorton: ENDORSED ORDER entered. MEMORANDUM AND ORDER.For the foregoing reasons, the motions to dismiss of the Universal defendants (Docket No. 21 ) and the Commonwealth defendants (Docket No. 26 ) are ALLOWED. Lundgr en's motions to appoint counsel and for a hearing (Docket Nos. 36 and 46 ) and his motion to amend (Docket No. 40 ) are DENIED as moot. Lundgren's motion for an extension for time (Docket No. 52 ) is ALLOWED, to the exte nt he seeks an extension to effect service on defendants, and DENIED as moot, to the extent he seeks additional time to respond to defendants' motions to dismiss. Lundgren shall file an amended complaint, if at all, on or before October 12, 2018 to cure the deficiencies in the complaint and shall effect service on defendants on or before that date.So ordered. (Franklin, Yvonne)

Case 1:17-cv-12349-NMG Document 54 Filed 08/10/18 Page 1 of 11

United States District Court
District of Massachusetts

John E. Lundgren,
Plaintiff,
v.
Occupational Safety and Health
Administration, et al.
Defendants.

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Civil Action No.
17-12349-NMG

MEMORANDUM & ORDER

GORTON, J.
This case arises from an alleged industrial accident at
Universal Wilde, Inc. (“Universal”).

Plaintiff John Lundgren

(“Lundgren” or “plaintiff”), who filed his complaint pro se, was
diagnosed with Legionnaires’ disease in December, 2014.

He

alleges that defendants Universal, the Massachusetts Department
of Public Health, the Occupational Safety and Health
Administration (“OSHA”) and individual employees thereof,
improperly failed to protect his co-workers by collecting
required water samples from a malfunctioning compressor at his
place of employment in violation of the Occupational Health and
Safety Act, 29 U.S.C. § 654 and his civil rights.

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I.

Background and Procedural History
A. Background
Lundgren alleges that he was diagnosed with work-related

Legionnaires’ disease in December, 2014 after an industrial
accident at Universal involving an explosion of a compressor
containing dust and water vapor.

He recounts that the disease

was reported immediately to the Massachusetts Department of
Health and Public Safety (“MDPH”).

Lundgren submitted a claim

to the Department of Industrial Accidents (“DIA”) in January,
2015.

He contends that MDPH was required to collect water

samples identifying the source of the outbreak, quarantine the
area, protect workers and prevent the spread of the disease.
Lundgren complains of a deficient “phone fax” sent from
OSHA to Universal which failed to warn Universal of a possible
case of Legionnaires’ disease.

He suggests that the fax gave

Universal a deadline to respond in default of which an on-site
inspection would ensue.

Lundgren claims that Universal replied

(two weeks late) with a false report that no open water sources
were visible and a recommendation to take water samples if an
employee was diagnosed with Legionnaires’.
closed its investigation.

Thereafter, OSHA

Lundgren asserts that all defendants

failed to follow proper protocol, left workers in imminent
danger and denied his “right [] to critical mandated water
samples”.

He alleges a conspiracy and claims psychological
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damages stemming from “egregious, incompetent, grossly
negligent, nearly criminal (IF NOT) actions” following his
diagnosis.
Lundgren submits 26 exhibits to his complaint which 1)
document his diagnosis and claims to the DIA, 2) attach policies
of OSHA and 3) provide information about Legionnaires’ disease,
communications from OSHA to Universal, from plaintiff’s wife,
Sandra Lundgren, to OSHA and between attorneys representing
Lundgren and Universal.
B.

Pending Motions

In January, 2018, defendants Universal, Jennifer MacAskill
and Shawn Gill, current and former employees of Universal (“the
Universal defendants”) moved to dismiss the complaint,
contending that (1) Lundgren’s claims are precluded by the
Workers’ Compensation Act, (2) any claims were released in a
settlement agreement with Travelers Indemnity Co., Universal’s
workers’ compensation insurer and (3) Lundgren has no standing
to assert claims on behalf of unidentified co-workers (Docket
No. 21).
In February, 2018, defendant MDPH and its employee Elise
Pechter (“the Commonwealth defendants”) moved to dismiss the
complaint, asserting that (1) the Occupational Health and Safety
Act does not provide for a private cuase of action (2) MDPH and
Pechter, in her official capacity, are not persons “amenable to
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suit” under 42 U.S.C. § 1983 and the Eleventh Amendment bars
such claims and (3) the complaint does not allege sufficient
facts to support a civil rights claim against Pechter in her
individual capacity (Docket No. 26).
In March, 2018, plaintiff moved to default defendant OSHA
for failure to file a responsive pleading (Docket No. 30).

This

Court entered a notice of default against OSHA but in April,
2018, OSHA sought to remove the subsequent default entered
against it because plaintiff had not effected service on OSHA
(Docket No. 38).

In July, 2018, this Court, pursuant to Fed. R.

Civ. P. 55, vacated the subject default and extended the period
for service of process on OSHA until Friday, August 17, 2018.
In April, 2018, plaintiff moved to amend his complaint to
include claims for pain and suffering, punitive damages based on
loss of companionship, emotional distress, intentional
infliction and embarrassment caused by the actions of defendant
following the diagnosis and pain and suffering and punitive
damages on behalf of plaintiff’s two minor children (Docket No.
40).

That same month and again in July, 2018, plaintiff and his

wife, Sandra Lundgren, filed motions for appointment of counsel
and requested hearings (Docket Nos. 36 and 46).

Finally, within

the past week, Attorney Amy Rice filed a notice of appearance on
behalf of Lundgren and moved to extend the deadline for

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responding to pending motions in the case and to effect service
on OSHA to October 7, 2018 (Docket No. 52).
II.

Motions to Dismiss
A.

Legal Standard

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.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007).

In considering the merits of

a motion to dismiss, the Court may look only to the facts
alleged in the pleadings, documents attached as exhibits or
incorporated by reference in the complaint and matters of which
judicial notice can be taken. Nollet v. Justices of Trial Court
of Mass., 83 F. Supp. 2d 204, 208 (D. Mass. 2000), aff’d, 248
F.3d 1127 (1st Cir. 2000).

Furthermore, the Court must accept

all factual allegations in the complaint as true and draw all
reasonable inferences in the plaintiff's favor. Langadinos v.
Am. Airlines, Inc., 199 F.3d 68, 69 (1st Cir. 2000).

Although a

court must accept as true all of the factual allegations
contained in a complaint, that doctrine is not applicable to
legal conclusions. Ashcroft v. Iqbal, 556 U.S. 662 (2009).
B.

Application

The Universal defendants move to dismiss the action,
contending that the Workers’ Compensation Act, M.G.L. c. 152 §§
23-24, provides the exclusive remedy for Lundgren’s claims and
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that Lundgren lacks standing to assert claims on behalf of
unidentified co-workers.

The Commonwealth defendants move to

dismiss, noting that the Occupational Health and Safety Act does
not create a private cause of action and asserting that the
civil rights claim fail because MDPH and Pechter, in her
official capacity, are not persons amenable to suit under 42
U.S.C. § 1983 and Lundgren fails to allege facts sufficient to
state a claim in her individual capacity.
Construing Lundgren’s pro se complaint liberally in his
favor, it appears he claims a violation of the Occupational
Health and Safety Act for failure to collect water samples from
the malfunctioning compressor. Ayala Serrano v. Lebron Gonzalez,
909 F.2d 8, 15 (1st Cir. 1990) (“[P]ro se pleadings are to be
liberally construed, in favor of the pro se party.” (citing
Estelle v. Gamble, 429 U.S. 97, 106 (1976))).

As that statute

makes clear, however, it does not create a private cause of
action:
Nothing in this chapter shall be construed to supersede or
in any manner affect any workmen’s compensation law or to
enlarge or diminish or affect in any other manner the
common law or statutory rights, duties or liabilities of
employers and employees under any law with respect to
injuries, diseases, or death of employees arising out of,
or in the course of, employment.
29 U.S.C. § 653(4); see also Elliott v. S.D. Warren Co., 134
F.3d 1, 4 (1st Cir. 1998) (“OSH Act does not create a private
right of action.”).

Accordingly, to the extent that Lundgren’s
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complaint brings claims under the Occupational health and Safety
Act, 29 U.S.C. § 651 et seq, those claims will be dismissed.
The Universal defendants assert that the claims against
them are barred because the Massachusetts workers’ compensation
law, Mass. Gen. Laws c. 152 §§ 23-24
provides the exclusive remedy, in most circumstances, for
claims by an injured employee against a covered employer.
Roberts v. Delta Air Lines, Inc., 599 F.3d 73 (1st Cir. 2010).
The exclusivity provision of the workers’ compensation scheme
makes clear that the statute “was designed to replace tort
actions by providing a uniform, statutory remedy” for injured
workers rather than a piecemeal recoveries through tort. Saab v.
Mass. CVS Pharm., LLC, 452 Mass. 564, 566 (2008) (internal
citation and quotation marks omitted).

Employees waive their

right to common law remedies with respect to any injury
compensable under the workers’ compensation scheme unless they
give notice to their employers, at the time of their hiring,
reserving such rights. Mass. Gen. Laws c. 152 § 24.
Two of the documents attached to Lundgren’s complaint,
Exhibits G and H, document Lundgren’s claim made to the DIA in
January, 2015 to receive compensation after his diagnosis of
Legionnaire’s disease.

The Universal defendants contend that

Lundgren reached a settlement with Universal’s workers’
compensation insurer for injuries sustained in December, 2014

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while he was employed by Universal.

It appears from the face of

the complaint that Lundgren’s claims are barred under the
exclusivity provisions of the Massachusetts workers’
compensation statute.

He does not plead facts to suggest that

his claims fall outside of the scope of the statutory scheme,
for example that his injury occurred outside of the course of
his employment or that he did not have an employment
relationship with Universal. See Saab, 452 Mass. at 569 (“The
key to whether the act precludes a common-law right of action
lies in the nature of the injury for which plaintiff makes the
claim.”).

The Court will, however, afford Lundgren an

opportunity to amend his complaint to clarify whether his claims
somehow fall outside the scope of the workers’ compensation
statute.
Lundgren also alleges the violation of his civil right to
the collection of mandated water samples.

The Court construes

that claim to be brought under 42 U.S.C. § 1983. See Hudson v.
MacEachern, 94 F. Supp. 3d 59, 67 (1st Cir. 2015) (“Although the
exact claims advanced by [plaintiff] are not always easy to
divine, the Court construes the pro se Complaint liberally in
defining those claims raised by plaintiff.” (citing Erickson v.
Pardus, 551 U.S. 89, 94 (2007) (per curiam))).

State agencies

and state officials acting in the their official capacity, such
as the MPDH and Pechter, are not amenable to suit under § 1983.
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Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989)
(holding that neither a state nor its officials acting in their
official capacities are “persons” within the meaning of § 1983).
To the extent that Lundgren brings a claim under § 1983
against Pechter in her individual capacity, the complaint fails
to allege facts sufficient to state a claim.

Pechter is named

as a defendant (listed under MPDH) but is not mentioned
elsewhere in the complaint and Lundgren does not explain
Pechter’s role in the alleged conduct.

Accordingly, because

Lundgren makes no allegation, “either direct or inferential,
respecting each material element necessary to sustain recovery
under some actionable” legal theory, his claim for “civil rights
violations” will be dismissed. Centro Medico del Turabo, Inc. v.
Feliciano de Melecio, 406 F.3d 1, 6 (1st Cir. 2005) (internal
citation omitted).

The Court will again, however, afford

Lundgren the opportunity to amend to cure the deficiencies in
his complaint. See Juarez v. U.S. Bank Nat’l Ass’n, 2014 WL
815343, at *2 (D. Mass. March 1, 2014) (noting that pro se
litigants are extended wide latitude to amend their complaints
and such latitude extends to a pro se litigant that has since
retained counsel).
Plaintiff is reminded that, to state a claim for relief, a
complaint must include “a short and plain statement of the claim
showing that the pleader is entitled to relief,” Fed. R. Civ. P.
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8(a)(2), in order to “give the defendant fair notice of what the
plaintiff's claim is and the grounds upon which it rests.” Calvi
v. Knox Cnty., 470 F.3d 422, 430 (1st Cir. 2006) (quoting
Educadores Puertorriqueños en Accion v. Hernández, 367 F.3d 61,
66 (1st Cir. 2004)).

This means that the statement of the claim

must “at least set forth minimal facts as to who did what to
whom, when, where, and why”. Id. (quoting Educadores, 367 F.3d
at 68). Although the requirements of Rule 8(a)(2) are minimal,
“minimal requirements are not tantamount to nonexistent
requirements”. Id. (internal citation omitted).
III. Motion to Enlarge Time
Attorney Amy Rice filed her appearance in this case on
behalf of plaintiff on August 7, 2018.

Concurrently, Lundgren

filed a motion to enlarge time to serve or re-serve defendants
and to review and respond to the pending motions in the case
(Docket No. 52).

For the reasons explained above, the complaint

as styled is subject to dismissal and, accordingly, the Court
will deny as moot Lundgren’s motion to extend time to the extent
it seeks an extension to file further responses to the motions
to dismiss.

The Court will, however, permit Lundgren to file an

amended complaint to cure the deficiencies identified and to
effect service on defendants.

Accordingly, the motion to extend

time will be allowed, in part, and denied as moot, in part.

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ORDER
For the foregoing reasons, the motions to dismiss of the
Universal defendants (Docket No. 21) and the Commonwealth
defendants (Docket No. 26) are ALLOWED.

Lundgren’s motions to

appoint counsel and for a hearing (Docket Nos. 36 and 46) and
his motion to amend (Docket No. 40) are DENIED as moot.
Lundgren’s motion for an extension for time (Docket No. 52) is
ALLOWED, to the extent he seeks an extension to effect service
on defendants, and DENIED as moot, to the extent he seeks
additional time to respond to defendants’ motions to dismiss.
Lundgren shall file an amended complaint, if at all, on or
before October 12, 2018 to cure the deficiencies in the
complaint and shall effect service on defendants on or before
that date.

So ordered.

/s/ Nathaniel M. Gorton_____
Nathaniel M. Gorton
United States District Judge
Dated August 10, 2018

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