Baker v. Phillips et al
ORDER granting 19 Motion to Dismiss; granting 22 Motion to Dismiss for Failure to State a Claim; granting 14 Motion to Dismiss; 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, MAUREN HENSON,
SHARMILA CHANDRAN, ALYSON
WEIDRICH, TRESHA MORELAND, LIA
GREEN, PAULA McINERNEY-HALL,
JASON GREEN, JOHN PIERCE, RN
JUDITH WARNKE, RICHARD RICE,
RONALD BUNNELL, ROBERT WILSO,
RN JANEL BROWN, TRISTINA
WEEKELY, RN, MSN, CNS CHARLENE
WILLIAMS, RN NICHOLAS NORNING,
RN WAND DOLAN, RN JENNY
TROPPLE, RN PEG DOUD, RN TAMMY
MEADORS, JOSEPH SCHMIDT, RN
EMILY McDERMOTT, COMET
HARLDSON, JENNIFER VAN ANNE,
PHIL ROGERS, MARY BELL, JACKLYN
WINTERS and THOMAS GRATZER,
Plaintiff William Ray Baker, appearing pro se, filed this action against the
individual defendants. (Docket 1). Plaintiff alleges some of these defendants
have an affiliation with Rapid City Regional Hospital (“Regional Hospital”). Id.;
(Docket 1-3). Some defendants have a connection to plaintiff through a
workers’ compensation claim he filed. (Docket 1-4). According to plaintiff, his
lawsuit revolves around a “right to sue” letter he received from the United States
Department of Labor Office of Federal Contract Compliance Programs. (Docket
1-1). The letter indicates plaintiff could pursue a claim under Title VII of the
Civil Rights Act (“Title VII”) in state or federal courts. Id. Aside from the “right
to sue” letter, plaintiff grounds his lawsuit in “varied South Dakota laws, within
the jurisdiction” of this court. (Docket 1 at p. 1). Plaintiff indicates those laws
“will be identified in the OSHA Story[,]” which is not part of the record. Id. In
the “statement of claim” portion of the complaint, plaintiff refers to two
attachments to his complaint and asserts “federal contractor, subcontractors,
and its vendors have willfully, knowingly with specific intent, have directly,
indirectly, threatened covertly and harassed, humiliated, violated me. Left me
for dead with no case management, violating SD, and varied federal laws.” Id. at
The first attachment the complaint refers to is a document plaintiff calls
his “resume.” (Docket 1-3). The purpose of the resume is not clear, but it cites
to the Occupational Safety and Health Act of 1970 (“OSHA”) and the Health
Insurance Portability and Accountability Act of 1996 (“HIPAA”). Id. It refers to
defendant Thomas Gratzer, M.D., and an experience plaintiff describes as
“Pysocological [sic] Rape[.]” Id. at p. 2. It also mentions defendant Comet
Haraldson asking plaintiff about his experience with Dr. Gratzer. Id.
The second attachment is a narrative with several parts. (Docket 1-4). It
details federal regulations and an executive order. Id. at pp. 1-2. It claims
staff, presumably staff at Regional Hospital, abused his mother, Margaret Ann
Baker, and that people from Regional Hospital surveilled plaintiff. Id. at p. 3.
The narrative claims a violation of concerted activity protections under the
National Labor Relations Act (“NLRA”) and notes plaintiff received a “right to sue”
letter on February 19, 2016, from the Equal Employment Opportunity
Commission (“EEOC”). Id. The attachment cites a decision from plaintiff’s
workers’ compensation case regarding his mental health. Id. at p. 4. Plaintiff
claims he received a threatening text message on June 18, 2017. Id. He
asserts defendants Jennifer Van Anne and Comet Haraldson have documents
with contents relating to him. Id. Plaintiff contends HIPAA and SDCL
§ 62-2-22 have been violated. Id. at pp. 4-5.
Defendants filed motions to dismiss. (Dockets 14, 16, 19 & 22).
Each motion to dismiss filed by defendants cites Rule 12(b)(6) of the
Federal Rules of Civil Procedure. (Dockets 14, 16, 19 & 22). The court finds
plaintiff’s complaint must be dismissed under Rules 12(b)(6) or 12(b)(1).
Consequently, the court does not address defendants’ other bases for dismissal.
Plaintiff submitted filings in response to defendants’ motions, and they
contain numerous factual assertions beyond those alleged in his complaint.
(Dockets 29 & 33). The additional facts in plaintiff’s responses are not properly
before the court and the court will not consider them in ruling on defendants’
motions. 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.”) (collecting cases).
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 pursues Title VII claims against individual defendants, none of
whom were his employer.
“Since [Title VII’s] passage in 1964, it has prohibited employers from
discriminating against their employees on any seven specified criteria.” Univ. of
Tex. Southwestern Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2525 (2013). Five are
personal characteristics: race, color, religion, sex and national origin. See
42 U.S.C. § 2000e-2. And two are “the employee’s opposition to employment
discrimination, and the employee’s submission of or support for a complaint that
alleges employment discrimination—[which] are not . . . based on personal traits
but rather types of protected employee conduct.” Nassar, 133 S. Ct. at 2525;
see 42 U.S.C. § 2000e-3(a). “To succeed on . . . race, gender, and age
discrimination claims, [a plaintiff] must show either direct evidence of
discrimination or evidence . . . sufficient to create an inference of discrimination
under the McDonnell Douglas burden shifting framework.” Blackwell v. Alliant
Techsystems, Inc., 822 F.3d 431, 435 (8th Cir. 2016) (internal quotation marks
Plaintiff’s Title VII claims fail against all defendants because “individual
employees cannot be personally liable under Title VII.” McCullough v. Univ. of
Arkansas for Med. Scis., 559 F.3d 855, 860 n.2 (8th Cir. 2009) (citing
Bonomolo-Hagen v. Clay Cent.-Everly Cmty. Sch. Dist., 121 F.3d 446, 447 (8th
Cir.1997) (per curiam)). Under Rule 12(b)(6), the court grants defendants’
motions to dismiss plaintiff’s Title VII claims. For these claims, plaintiff fails to
allege “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’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’ motions 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’ motions to dismiss plaintiff’s OSHA claim under Rule
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). Plaintiff alleges no facts plausibly suggesting that any
defendant interfered with, restrained, or coerced his exercise of his right to
concerted action. See 29 U.S.C. § 158(a)(1).
Rule 12(b)(1), dismissal based on a lack of subject matter jurisdiction,
provides another basis for dismissing this claim. See Fed. R. Civ. P. 12(b)(1).
“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, this 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
Based on the above analysis,1 it is
ORDERED that defendants’ motions to dismiss (Dockets 14, 16, 19 & 22)
IT IS FURTHER ORDERED that plaintiff’s complaint is dismissed.
Plaintiff’s Title VII, HIPAA and OSHA claims are dismissed with prejudice.
Plaintiff’s NLRA and state law claims are dismissed without prejudice.
Dated February 9, 2018.
BY THE COURT:
/s/ Jeffrey L. Viken
JEFFREY L. VIKEN
the extent plaintiff attempts to advance a claim based on SDCL
§ 62-2-22, (Docket 1-4 at p. 5), the claim is dismissed under Rule 12(b)(6). That
statute governs the admissibility of evidence in workers’ compensation cases.
The statute does not create a cause of action and even if it did, plaintiff fails to
articulate facts to support a claim.
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?