Baker v. Phillips et al
ORDER granting 16 Motion to Dismiss. Signed by Chief Judge Jeffrey L. Viken on 2/9/18. (SB)
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WILLIAM RAY BAKER,
BRENT PHILLIPS, LIA GREEN, JOHN
PIERCE, TRESHA MORELAND, PAULA
WIEDRICH, RICHARD RICE, ROBERT
WILSON, JANEL BROWN, TRISTINA
WEEKLEY, CHARLENE WILLIAMS,
NICHOLAS HORNING, STEPHANIE
Plaintiff William Ray Baker, appearing pro se, filed this action against
defendants. (Docket 1). Plaintiff alleges these defendants all have an affiliation
with Rapid City Regional Hospital. Id. According to plaintiff, the grounds for
his lawsuit include violations of: the Health Insurance Portability and
Accountability Act of 1996 (“HIPAA”); concerted activity protections under the
National Labor Relations Act (“NLRA”); and the Occupational Safety and Health
Act of 1970 (“OSHA”). Id.
In support of his claims, plaintiff asserts the following facts. Defendants
Brent Phillips and Lia Green manage a health care organization. Id. at p. 4.
On Tuesday, November 1, 2016, Alyson Wiedrich sent an e-mail containing the
names Tresha Moreland, Paula McInerney-Hall, Richard Rice, John Pierce,
Tristina Weekley, Charlene Williams, Janel Brown, Robert Wilson and
Stephanie Rhodes. Id. The e-mail followed an event where Nicholas Horning
and Ms. Weekley asked questions of Margaret Baker. Id. The defendants
obstructed an OSHA inspection. Id. Plaintiff visited the OSHA Area District
Office in Bismarck, North Dakota. Id. The complaint also includes legal
conclusions regarding conspiracies to intentionally inflict emotional distress on
Defendants filed a motion to dismiss the complaint. (Docket 16). The
court grants their motion.
Defendants argue dismissal under Rule 12(b)(6) of the Federal Rules of
Civil Procedure is warranted because the complaint fails to state a claim upon
which the court can grant relief. (Docket 17). Defendants assert neither HIPAA
nor OSHA provide plaintiff with a private right of action. Id. at pp. 6-7. As to
plaintiff’s intentional infliction of emotional distress claims, defendants Phillips
and Green argue plaintiff fails to meet Rule 12(b)(6). Id. at pp. 9-10.
Defendants contend dismissal under Rule 12(b)(1) is proper for plaintiff’s NLRA
claim because the National Labor Relations Board (“NLRB”) would have
exclusive jurisdiction over the claim. Id. at pp. 7-8.
Plaintiff submitted three filings in response to defendants’ motion, and
they contain numerous factual assertions beyond those alleged in his
complaint. (Dockets 20, 21 & 23). The additional facts in plaintiff’s responses
are not properly before the court and the court will not consider them in ruling
on defendants’ motion. See Fischer v. Minneapolis Pub. Sch., 792 F.3d 985,
990 n.4 (8th Cir. 2015) (“But Fischer failed to include these claims in his
complaint, failed to file an amended complaint by the deadline, and did not
later petition to court to amend his complaint. Accordingly, these claims were
not properly before the district court.”) (internal citations omitted); Morgan
Distrib. Co., Inc. v. Unidynamic Corp., 868 F.2d 992, 995 (8th Cir. 1989) (“[I]t
is axiomatic that a complaint may not be amended by the briefs in opposition
to a motion to dismiss.”); Midland Farms, LLC v. U.S. Dep’t of Agric., 35 F.
Supp. 3d 1056, 1066 (D.S.D. 2014) (“Midland may not amend its Complaint
through an argument raised in a brief in opposition to a motion to dismiss.”)
Under Rule 12(b)(6), a plaintiff must plead “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). Two “working principles” underlie Rule 12(b)(6) analysis. See
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). First, courts are not required to
accept as true legal conclusions “couched as . . . factual allegation[s]” in the
complaint. See id. “Threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.” Id. (quoting
Twombly, 550 U.S. at 555) (internal quotation marks omitted). The court does,
however, “take the plaintiff’s factual allegations as true.” Braden v. Wal-Mart
Stores, Inc., 588 F.3d 585, 594 (8th Cir. 2009). Second, the plausibility
standard is a “context-specific task that requires the reviewing court to draw
on its judicial experience and common sense.” Iqbal, 556 U.S. at 678 (citation
omitted). The complaint is analyzed “as a whole, not parsed piece by piece to
determine whether each allegation, in isolation, is plausible.” Braden, 588
F.3d at 594.
“In order to properly dismiss for lack of subject matter jurisdiction under
Rule 12(b)(1), the complaint must be successfully challenged on its face or on
the factual truthfulness of its averments.” Titus v. Sullivan, 4 F.3d 590, 593
(8th Cir. 1993) (internal citation omitted). “In a facial challenge to jurisdiction,
all of the factual allegations concerning jurisdiction are presumed to be true
and the motion [to dismiss] is successful if the plaintiff fails to allege an
element necessary for subject matter jurisdiction.” Id. (internal citation
omitted). “Jurisdictional issues, whether they involve questions of law or of
fact, are for the court to decide.” Osborn v. United States, 918 F.2d 724, 729
(8th Cir. 1990).
In applying these principles, the court must construe plaintiff’s pro se
complaint liberally. See Stone v. Harry, 364 F.3d 912, 914 (8th Cir. 2004).
This means “that if the essence of an allegation is discernible, even though it is
not pleaded with legal nicety, then the district court should construe the
complaint in a way that permits the layperson’s claim to be considered within
the proper legal framework.” Jackson v. Nixon, 747 F.3d 537, 544 (8th Cir.
2014) (internal quotation marks omitted). The complaint “still must allege
sufficient facts to support the claims advanced.” Stone, 364 F.3d at 914.
Plaintiff’s HIPAA claim fails “because HIPAA does not create a private
right of action.” Dodd v. Jones, 623 F.3d 563, 569 (8th Cir. 2010) (citing
Adams v. Eureka Fire Prot. Dist., 352 Fed. Appx. 137, 139 (8th Cir. 2009)); see
Lafleur v. Jetzer, No. 4:14-CV-04175, 2015 WL 6157745, at *6 (D.S.D. Oct. 20,
2015) (citing this holding in Dodd). The court grants defendants’ motion to
dismiss plaintiff’s HIPAA claim under Rule 12(b)(6).
The court dismisses plaintiff’s OSHA claim because neither OSHA nor its
regulations “independently create private rights of action or impose alternative
duties on defendants.” Chew v. American Greetings Corp., 754 F.3d 632, 637
(8th Cir. 2014) (citing 29 U.S.C. § 653(b)(4) (“Nothing in this chapter shall be
construed 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.”)). In some cases, “[v]iolations of federal
regulations may serve as evidence, but unless clearly indicated by Congress,
they do not ‘independently create private rights of action’ and therefore do not
constitute a claim arising under the Constitution, law, or treaties of the United
States.” Johnson v. Stokes Contractor Servs., No. 4:14 CV 1052, 2014 WL
4450532, at *3 (E.D. Mo. Sept. 10, 2014) (quoting Chew, 754 F.3d at 637). The
court grants defendants’ motion to dismiss plaintiff’s OSHA claim under Rule
Plaintiff’s NLRA claim asserts “violations of protected concerted activity
rights[.]” (Docket 1 at p. 1). The NLRA “gives employees the right to engage in
concerted activities for the purposes of mutual aid and protection.” Williams v.
Watkins Motor Lones, Inc., 310 F.3d 1070, 1071-72 (8th Cir. 2002) (footnote
omitted) (citing 29 U.S.C. § 157). Under Rule 12(b)(6), plaintiff’s NLRA claim
must be dismissed. Considering the facts plaintiff’s complaint advances, and
liberally construing his NLRA claim, there is not “sufficient factual matter,
accepted as true, to state a claim to relief that is plausible on its face.” Iqbal,
556 U.S. at 678 (internal quotation marks omitted). Plaintiff must show “more
than a sheer possibility that a defendant has acted unlawfully. Where a
complaint pleads facts that are merely consistent with a defendant’s liability, it
stops short of the line between possibility and plausibility of entitlement to
relief.” Id. (internal quotation marks omitted). As defendants point out,
plaintiff “alleges no facts plausibly suggesting that any defendant interfered
with, restrained, or coerced [his] exercise of his right to concerted action.”
(Docket 17 at p. 7) (citing 29 U.S.C. § 158(a)(1)).
Rule 12(b)(1) provides another basis for dismissing this claim.
“Violations of an employee’s right to engage in concerted activities are within
the exclusive jurisdiction of the NLRB.” Buscemi v. McDonnell Douglas Corp.,
736 F.2d 1348, 1350 (9th Cir. 1984). Consequently, the court finds “it ha[s] no
subject matter jurisdiction over the [NLRA] claim, and deference to the
‘exclusive competence’ of the NLRB [is] proper.” Id.; see Gerhardson v. Gopher
News Co., 698 F.3d 1052, 1057 (8th Cir. 2012) (“[T]he [NLRB] has exclusive
jurisdiction over claims that ‘arguably’ constitute unfair labor practices under
§§ 7 or 8 of the NLRA.”).
IV. Intentional infliction of emotional distress
Plaintiff’s only remaining claim is aimed at Phillips and Green and alleges
intentional infliction of emotional distress. (Docket 1 at p. 3). This is a state
law claim. See Estate of Johnson by and through Johnson v. Weber, 898
N.W.2d 718, 726 (S.D. 2017) (reciting the elements of intentional infliction of
emotion distress under South Dakota law). In the discussion above, the court
dismissed all plaintiff’s claims over which it had original jurisdiction. “A
district court’s decision whether to exercise [supplemental] jurisdiction after
dismissing every claim over which it had original jurisdiction is purely
discretionary.” Carlsbad Tech., Inc. v. HIF Bio, Inc., 556 U.S. 635, 639 (2009)
(citing 28 U.S.C. § 1367(c) (“The district courts may decline to exercise
supplemental jurisdiction over a claim . . . if . . . the district court has
dismissed all claims over which it has original jurisdiction.”) (emphasis in
“However, where, as here, resolution of the remaining claims depends
solely on a determination of state law, the Court should decline to exercise
jurisdiction.” Glorvigen v. Cirrus Design Corp., 581 F.3d 737, 749 (8th Cir.
2009) (internal quotation marks and alterations omitted). Because plaintiff’s
claim for intentional infliction of emotional distress involves determinations of
state law only, the court declines to exercise supplemental jurisdiction. See id.
Based on the above analysis, it is
ORDERED that defendants’ motion to dismiss (Docket 16) is granted.
IT IS FURTHER ORDERED that plaintiff’s complaint (Docket 1) is
dismissed. Plaintiff’s HIPAA and OSHA claims are dismissed with prejudice.
Plaintiff’s NLRA and intentional infliction of emotional distress claims are
dismissed without prejudice.
Dated February 9, 2018.
BY THE COURT:
/s/ Jeffrey L. Viken
JEFFREY L. VIKEN
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