Cox v. Baenen et al

Filing 171

ORDER Granting in Part and Denying in Part Defendants Abhold, Feucht, and SMA Construction Services' Motion to Dismiss. 147 Signed by Judge Charles N Clevert, Jr on 2/28/17. (cc: all counsel) ((kwb), C. N. Clevert, Jr.)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

DW AYNE A. COX,
Plaintiff,
v.

Case No. 15-CV-395

MICHAEL BAENEN, YANA PUSICH,
AMY BASTEN, CHRIS TIMMERS,
RANDY MATTISON, SCOTT LEURQUIN,
SMA CONSTRUCTION SERVICES,
MIKE ABHOLD, AND BURT FEUCHT,
Defendants.

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS ABHOLD,
FEUCHT, AND SMA CONSTRUCTION SERVICES’ MOTION TO DISMISS (DOC. 147)
Defendants Mike Abhold, Burt Feucht, and SMA Construction Services (“SMA
Defendants”) have filed a motion to dismiss pursuant to Federal Rule of Civil Procedure
12(b)(6). As discussed below, the motion will be granted in part and denied in part.
Motion to Dismiss Standard of Review
A motion to dismiss under Rule 12(b)(6) challenges the sufficiency of the complaint
to state a claim upon which relief may be granted. See Fed. R. Civ. P. 12(b)(6). Rule
12(b)(6) requires a plaintiff to clear two hurdles. EEOC v. Concentra Health Servs., Inc., 496
F.3d 773, 776 (7th Cir. 2007). First, the complaint must describe the claim in sufficient detail
to give a defendant fair notice of the claim and the grounds on which it rests. Id. Although
specific facts are not necessary, “at some point the factual detail in a complaint may be so
sketchy that the complaint does not provide the type of notice of the claim to which the
defendant is entitled under Rule 8.” Airborne Beepers & Video, Inc. v. AT&T Mobility LLC,
499 F.3d 663, 667 (7th Cir. 2007). Second, the complaint must set forth a claim that is

plausible on its face. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 1974
(2007); St. John’s United Church of Christ v. City of Chicago, 502 F.3d 616, 625 (7th Cir.
2007). The “allegations must plausibly suggest that the plaintiff has a right to relief, raising
that possibility above a ‘speculative level’; if they do not, the plaintiff pleads itself out of
court.” EEOC, 496 F.3d at 776 (citing Bell Atl. Corp., 550 U.S. at 555-56, 569 n.14 (2007)).
W hen considering a Rule 12(b)(6) motion, the court must construe the complaint in the light
most favorable to the plaintiff, accepting as true all well-pleaded facts and drawing all
possible inferences in the plaintiff’s favor. Tamayo v. Blagojevich, 526 F.3d 1074, 1081 (7th
Cir. 2008).
Discussion
The SMA Defendants contend that Counts 1 and 2 of the second amended complaint,
in which plaintiff advances federal claims under 42 U.S.C. § 1983, are subject to dismissal
because they were not acting under color of state law. They also contend that, once the
federal claims are dismissed, Counts 3, 4, and 5, in which plaintiff advances supplemental
state law claims, are subject to dismissal because no federal claims against them remain.
In response, plaintiff does not oppose dismissal of his federal claims against the SMA
Defendants. (See Docket 167 at 2 n.1.) Consequently, plaintiff’s federal claims against the
SMA Defendants may be dismissed.1

Hence, the sole remaining issue is whether

supplemental jurisdiction may be exercised with respect to plaintiff’s pendent state law
claims.
Plaintiff contends that the court has supplemental jurisdiction over his state law claims
because these claims arise from a common nucleus of operative facts. He charges that the
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Count 1 is an Eighth Am endm ent claim . Count 2 is an equal protection claim and plaintiff was not
perm itted to proceed on an equal protection claim . (See Docket 17 at 7.)

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court should deny the SMA Defendants motion to dismiss and exercise supplemental
jurisdiction over the SMA Defendants as pendent parties respecting Counts 3, 4, and 5
because: (1) the SMA Defendants have not asserted that he failed to state a claim in Counts
3, 4, and 5; (2) the SMA Defendants failed to articulate the applicable rule, that is, that the
court has supplemental jurisdiction over claims that are so related to a plaintiff’s claims that
they form part of the same case or controversy; and (3) none of the statutory circumstances
under which a court may decline to exercise supplemental jurisdiction are present here.
Section 1367 of Title 28 of the United States Code provides in relevant part:
[I]n any civil action of which the district courts have original jurisdiction, the
district courts shall have supplemental jurisdiction over all other claims that are
so related to claims in the action within such original jurisdiction that they form
part of the same case or controversy under Article III of the United States
Constitution. Such supplemental jurisdiction shall include claims that involve
the joinder or intervention of additional parties.

28 U.S.C. § 1367(a).
In this case, the court has original jurisdiction over plaintiff’s federal Eighth
Amendment claim against the State Defendants.

See 28 U.S.C. § 1331.

The SMA

Defendants contend that because the court has dismissed the federal claims against them,
it should decline to exercise supplemental jurisdiction over plaintiff’s state law claims against
them. However, the court has supplemental jurisdiction over all other claims that “are so
related to the federal claims in the action . . . that they form part of the same case or
controversy[.]” See 28 U.S.C. § 1367(a). It is immaterial that the SMA Defendants would be
pendent parties otherwise not subject to this court’s jurisdiction as long as there is a
sufficient nexus between the federal claims as to one party and the state law claims as to

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another party. See Exxon Mobil Corp. v. Allapattah Serv., Inc., 545 U.S. 546, 558 (2005);
see also Brazinski v. Amoco Petroleum Additives Co., 6 F.3d 1176, 1181-82 (7th Cir. 1993).
The complaint alleges that the SMA Defendants’ negligent handling of exhaust from
the construction equipment is what gave rise to his injuries, and forms the bases of his state
law claims against them. Additionally it charges that the State Defendants subjected plaintiff
to cruel and unusual punishment in violation of the Eighth Amendment because they forced
him to remain in his cell block and for months did nothing to abate the fumes. There can be
no doubt that these allegations form part of the same case or controversy and that a
“sufficient nexus” exists between the federal and state claims. See United Mine Workers of
Am. v. Gibbs, 383 U.S. 715, 725 (1966) (for purposes of supplemental jurisdiction, claims
are sufficiently related when they derive from a common nucleus of operative facts). In
addition, the court is not aware of any reason it should decline to exercise supplemental
jurisdiction over the state law claims in this case. See 28 U.S.C. § 1367©. Therefore,
IT IS ORDERED that defendants Abhold, Feucht, and SMA Construction Services’
motion to dismiss (Docket 147) is GRANTED IN PART AND DENIED IN PART as described
herein. The motion is granted as to plaintiff’s federal claim. The motion is denied as to
plaintiff’s supplemental state law claims.
Dated at Milwaukee, W isconsin, this 28th day of February, 2017.
BY THE COURT

s/ C. N. Clevert, Jr.
C. N. CLEVERT, JR.
U.S. District Judge

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