Gomez v. Wilson et al
Filing
26
MEMORANDUM AND ORDER - Defendants' Motion to Strike (filing no. 22 ) is denied. Plaintiff's Motion to Appoint Counsel (filing no. 21 ) is denied. Defendants' Motion to Dismiss (filing no. 12 ) is granted. A separate judgment will be entered in accordance with this Memorandum and Order. Ordered by Judge John M. Gerrard. (Copy mailed to pro se party) (AOA)
Gomez v. Wilson et al
Doc. 26
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
MARTIN GOMEZ,
)
)
Plaintiff,
)
)
v.
)
)
DENNIS WILSON, Investigator, and )
UNITED STATES DEPARTMENT )
OF LABOR, OCCUPATIONAL
)
SAFETY AND HEALTH
)
ADMINISTRATION,
)
)
Defendants.
)
8:12CV367
MEMORANDUM
AND ORDER
This matter is before the court on Defendants’ Motion to Dismiss. (Filing No.
12.) Also pending are Plaintiff’s Motion to Appoint Counsel and Defendants’ Motion
to Strike. (See Filing Nos. 21 and 22.) For the reasons discussed below, Defendant’s
Motion to Dismiss is granted and the other pending Motions are denied.
I. BACKGROUND
Plaintiff filed this matter in the Small Claims Court for Douglas County,
Nebraska, against the United States Department of Labor, Occupational Safety and
Health Administration (“OSHA”), and Dennis Wilson (“Wilson”), an OSHA
Investigator. (Filing No. 1-1.) On October 15, 2012, Defendants filed a proper and
timely Notice of Removal of Plaintiff’s claims. (Filing No. 1.)
Liberally construed, Plaintiff’s Complaint stems from Plaintiff’s dissatisfaction
with Wilson’s investigation, and OSHA’s dismissal, of a complaint that he filed
regarding his termination from Timpte, Inc. (“Timpte”). (See Filing No. 17 at
CM/ECF pp. 1, 5; Filing No. 1-1.) Indeed, in his Complaint, and in his Response to
Defendants’ Motion to Dismiss, Plaintiff asserts that Wilson has “bad functions of his
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job” and that OSHA and Wilson discriminated against him on the basis of his
disability. (Id.)
On December 28, 2012, Defendants filed a Motion to Dismiss along with a
Brief and Index of Evidence in Support. (Filing Nos. 12, 13, and 14.) After receiving
an extension of time to respond, Plaintiff filed a Response to Defendants’ Motion to
Dismiss. (Filing No. 17.) Defendants subsequently filed a Reply Brief. (Filing No.
18.)
After Defendants filed their Reply, Plaintiff filed a Letter (filing no. 19) a
Supplement to his Complaint (filing no. 20), and a Motion to Appoint Counsel (filing
no. 21). Defendants have moved to strike Plaintiff’s Supplement and his Motion to
Appoint Counsel. (Filing No. 22.) The court will briefly address the Motion to
Strike, and Plaintiff’s Motion to Appoint Counsel, before turning to Defendants’
Motion to Dismiss.
II. ANALYSIS
A.
Motion to Strike
In their Brief in Support of their Motion to Strike, Defendants ask the court to
strike Plaintiff’s Supplement (filing no. 20) and Motion to Appoint Counsel (filing
no. 21) because these documents do not comply with the court’s local rules, namely
NECivR 7.0.1(c). (Filing No. 24.) See NECivR 7.0.1(c) (providing that a moving
party may reply to an opposing brief, however neither party may “file further briefs
or evidence without the court’s leave”). In addition, Defendants seek to strike the
Motion to Appoint Counsel because it contains numerous documents related to a
separate case Plaintiff filed against Timpte in Nebraska Workers’ Compensation
Court. (Filing No. 24; See also Filing No. 21.)
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The court agrees with Defendants that Plaintiff failed to request leave to file
the additional documents in support of his Complaint, or in response to Defendants’
Motion to Dismiss, in accordance with NECivR 7.0.1(c). Nevertheless, motions to
strike are viewed with disfavor and infrequently granted. Lunsford v. United States,
570 F.2d 221, 229 (8th Cir. 1977). In light of this, and Plaintiff’s pro se status, the
court will not strike Plaintiff’s Supplement or the workers’ compensation documents
contained within his Motion to Appoint Counsel. Defendants’ Motion to Strike
(filing no. 22) is denied.
B.
Motion to Appoint Counsel
In addition to the workers’ compensation documents, filing number 21 contains
a request for “legal assistance.” (See Filing No. 21 at CM/ECF p. 1.) The court
liberally construes this request as a request for the appointment of counsel.
However, in Davis v. Scott, 94 F.3d 444, 447 (8th Cir. 1996), the Eighth Circuit Court
of Appeals explained that “[i]ndigent civil litigants do not have a constitutional or
statutory right to appointed counsel. . . . The trial court has broad discretion to decide
whether both the plaintiff and the court will benefit from the appointment of
counsel . . . .” Id. (quotation and citation omitted). No such benefit is apparent here.
The request for the appointment of counsel is therefore denied.
C.
Motion to Dismiss
In support of their Motion to Dismiss, Defendants argue, among other things,
that Plaintiff’s Complaint should be dismissed because this court does not have
jurisdiction to review OSHA’s dismissal of Plaintiff’s “11(c) complaint,” and
Plaintiff’s Complaint fails to state a claim upon which relief may be granted. (See
Filing Nos. 13 and 18.) For the reasons discussed below, the court agrees.
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1.
Motion to Dismiss Standard
A pro se plaintiff must set forth enough factual allegations to “nudge[] their
claims across the line from conceivable to plausible,” or “their complaint must be
dismissed” for failing to state a claim upon which relief can be granted. Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 569-70 (2007); see also Ashcroft v. Iqbal, 129 S. Ct.
1937, 1950 (2009) (“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.”). Regardless of whether a plaintiff is represented
or is appearing pro se, the plaintiff’s complaint must allege specific facts sufficient
to state a claim. See Martin v. Sargent, 780 F.2d 1334, 1337 (8th Cir. 1985).
However, a pro se plaintiff’s allegations must be construed liberally. Burke v. North
Dakota Dep’t of Corr. & Rehab., 294 F.3d 1043, 1043-44 (8th Cir. 2002) (citations
omitted).
2.
Plaintiff’s Claims Related to his OSHA Complaint
Section 11(c) of the Occupational Safety and Health Act (“OSH Act”)
provides:
(1) No person shall discharge or in any manner discriminate against any
employee because such employee has filed any complaint or instituted
or caused to be instituted any proceeding under or related to this chapter
or has testified or is about to testify in any such proceeding or because
of the exercise by such employee on behalf of himself or others of any
right afforded by this chapter.
(2) Any employee who believes that he has been discharged or
otherwise discriminated against by any person in violation of this
subsection may, within thirty days after such violation occurs, file a
complaint with the Secretary alleging such discrimination. Upon receipt
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of such complaint, the Secretary shall cause such investigation to be
made as he deems appropriate. If upon such investigation, the Secretary
determines that the provisions of this subsection have been violated, he
shall bring an action in any appropriate United States district court
against such person. In any such action the United States district courts
shall have jurisdiction, for cause shown to restrain violations of
paragraph (1) of this subsection and order all appropriate relief
including rehiring or reinstatement of the employee to his former
position with back pay.
(3) Within 90 days of the receipt of a complaint filed under this
subsection the Secretary shall notify the complainant of his
determination under paragraph (2) of this subsection.
29 U.S.C. § 660(c). To the extent that Plaintiff is attempting to assert a claim under
the OSH Act, he does not have a private right of action to do so. See, e.g., Am. Fed’n
of Gov’t Emp., AFL–CIO v. Rumsfeld, 321 F.3d 139, 143–44 (D.C. Cir. 2003) (noting
that the plaintiffs had “no private right of action under . . . OSHA”); Ellis v. Chase
Commc’ns, Inc., 63 F.3d 473, 476–77 (6th Cir. 1995) (“OSHA does not create a
private right of action .”); Jeter v. St. Regis Paper Co., 507 F.2d 973, 976–77 (5th Cir.
1975) (“The only provision in the statute which addresses itself to a private remedy
clearly indicates that Congress did not intend OSHA to create a new action for
damages in favor of employees.”). Rather, violations of OSHA are investigated and
enforced by the Secretary of Labor. 29 U.S.C. §§ 662, 666, 657.1
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Although Plaintiff does not have a private right of action under the OSH Act,
the Act does not preempt a state law claim against his employer for wrongful
discharge in violation of public policy. See, e.g., Kohrt v. MidAmerican Energy Co.,
364 F.3d 894, 901-02 (8th Cir. 2004) (finding there is no federal common law action
for wrongful discharge in violation of public policy, but OSHA’s remedial scheme
does not preempt a state law claim of wrongful discharge in violation of public
policy).
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Liberally construed, however, Plaintiff may be attempting to assert a claim
under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971). In Bivens,
the United States Supreme Court established that a victim of a constitutional violation
by a federal agent has a right to recover damages against the official in federal court
despite the absence of any statute conferring such a right. 403 U.S. 388.
Here, Plaintiff alleges Timpte terminated him for reporting a work-related
injury, which led to his filing of a Section 11(c) complaint with OSHA. (Filing Nos.
1 and 17.) Plaintiff ultimately became dissatisfied with the investigation of his 11(c)
complaint and filed this case against Wilson and OSHA for discrimination on
September 18, 2012.2 (Id.) Although Plaintiff sues OSHA and Wilson for
“discrimination,” he has failed to specify the capacity in which he sues Wilson.
(Filing No. 1-1.) Where a plaintiff does not specify the capacity in which a defendant
is sued, it is presumed that a defendant is sued in his official capacity only. See, e.g.,
Johnson v. Outboard Marine Corp., 172 F.3d 531, 535 (8th Cir. 1999) (“This court
has held that, in order to sue a public official in his or her individual capacity, a
plaintiff must expressly and unambiguously state so in the pleadings, otherwise, it
will be assumed that the defendant is sued only in his or her official capacity.”).
Because this court assumes that Wilson is sued in his official capacity only, Plaintiff’s
Bivens claim against Wilson is really a claim against the United States. Such a claim
cannot be prosecuted because of sovereign immunity. See Buford v. Runyon, 160
F.3d 1199, 1203 (8th Cir. 1998) (concluding complaint against government official
in official capacity is suit against United States; Bivens action cannot be prosecuted
against United States because of sovereign immunity). Moreover, a Bivens claim
2
On December 5, 2012, the Regional Administrator for OSHA dismissed
Plaintiff’s Section 11(c) complaint, finding that there was “no reasonable cause to
believe that [Timpte] violated the Act.” (Filing No. 14-2. at CM/ECF p. 4.) In doing
so, the Regional Administrator stated that the evidence showed that Plaintiff did not
notify Timpte of an alleged work-related personal injury until after Timpte terminated
his employment. (Id. at CM/ECF p. 5.)
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cannot be asserted directly against OSHA, an agency of the United States. See FDIC
v. Meyer, 510 U.S. 471, 486 (1994) (stating Bivens action for damages is not
actionable directly against agencies of the United States).
Even if Plaintiff had sued Wilson in his individual capacity, he makes no
factual allegations to support his claim that Wilson discriminated against him during
his investigation of Plaintiff’s 11(c) complaint. (See Filing No. 1-1.) Indeed,
Plaintiff simply makes a blanket assertion that he was discriminated against based on
his disability. (Id.) Such a blanket assertion fails to state a discrimination claim
against Wilson upon which relief may be granted. See Martin, 780 F.2d at 1337
(stating the plaintiff’s complaint must allege specific facts sufficient to state a claim).
To the extent that Plaintiff believes Wilson, or OSHA, was somehow negligent
during the investigation of his complaint, his claims are barred by the discretionary
function exception of the Federal Tort Claims Act (“FTCA”). See 28 U.S.C. §
2680(a) (stating discretionary-function exception to FTCA precludes government
liability for claims based on government’s exercise or failure to exercise discretionary
function); Hart v. United States, 630 F.3d 1085, 1088 (8th Cir. 2011) (concluding
discretionary-function exception applies when conduct at issue was discretionary and
was based on considerations of public policy); Lee v. United States, 892 F.2d 1043,
1990 WL 95, at *1 (6th Cir. Jan. 2, 1990) (affirming district court’s dismissal of
plaintiff’s claim that OSHA failed to adequately investigate violations of OSHA
regulations as barred under the FTCA’s discretionary function exception).
In short, Plaintiff has failed to state a claim related to his OSHA complaint or
investigation upon which relief may be granted.
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3.
Plaintiff’s Workers’ Compensation Case
As discussed above, Plaintiff filed a Motion to Appoint Counsel that contained
documents related to a Nebraska Workers’ Compensation case. (See Filing No. 21.)
To the extent that Plaintiff seeks to challenge, or change, a Nebraska Workers’
Compensation Court judgment, the Rooker–Feldman doctrine bars this court from
doing so. See Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923); Dist. of Columbia
Court of Appeals v. Feldman, 460 U.S. 462 (1983). Indeed, “a federal district court
is not an appellate court with any power to review Worker’s Compensation Court
decisions.” Simet v. Meylan Enters., No. 8:06cv465, 2007 WL 1341438, at *1 (D.
Neb. Apr. 2, 2007). Accordingly,
IT IS THEREFORE ORDERED that:
1.
Defendants’ Motion to Strike (filing no. 22) is denied.
2.
Plaintiff’s Motion to Appoint Counsel (filing no. 21) is denied.
3.
Defendants’ Motion to Dismiss (filing no. 12) is granted.
4.
A separate judgment will be entered in accordance with this
Memorandum and Order.
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DATED this 13th day of August, 2013.
BY THE COURT:
s/ John M. Gerrard
United States District Judge
*This opinion may contain hyperlinks to other documents or Web sites. The
U.S. District Court for the District of Nebraska does not endorse, recommend,
approve, or guarantee any third parties or the services or products they provide on
their Web sites. Likewise, the court has no agreements with any of these third parties
or their Web sites. The court accepts no responsibility for the availability or
functionality of any hyperlink. Thus, the fact that a hyperlink ceases to work or
directs the user to some other site does not affect the opinion of the court.
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