KOHL v. SMYTHECiv. No. 97-00586 ACK.
25 F.Supp.2d 1124 (1998)
Keith J. KOHL, Plaintiff,
John SMYTHE, et al., Defendants.
John SMYTHE, et al., Defendants.
United States District Court, D. Hawaii.
February 12, 1998.
William Harrison Elkner, Law Offices of William H. Elkner, Honolulu, HI, Mitchell C. Wallis, Honolulu, HI, for Plaintiff. Keith J. Kohl, Honolulu, HI, pro se.
Thomas R. Keller, Martin W. Basiszta, Office of the Attorney General — State of Hawaii, Honolulu, HI, for Defendants.
ORDER GRANTING DEFENDANTS' MOTION TO DISMISS WITH LEAVE TO AMEND
KAY, Chief Judge.
Plaintiff Keith J. Kohl ("Plaintiff") previously held a position as a Recreation Specialist III at the State of Hawaii Halawa Correctional Facility ("Halawa") and was a member of bargaining unit 13 of the Hawaii Government Employees Association. There remains a factual dispute whether Plaintiff was either: (1) a government volunteer; or (2) an independent contractor. On August 13, 1997, Halawa terminated Plaintiff, effective September 15, 1997. On September 15, 1997, Plaintiff filed his first amended complaint ("FAC") in this Court. Plaintiff alleges, inter alia, that Defendants improperly fired him from his position at Halawa in retaliation for his complaints of lack of safety in the workplace, i .e., Plaintiff's repeated grievances and requests for a personal security guard. Plaintiff further claims that these complaints are of a matter of public concern, thus qualifying as constitutionally protected speech and warranting a cause of action under 42 U.S.C. § 1983 ("§ 1983"). Plaintiff refers to his "federal rights to request additional safety measures and guard protection, such rights being secured to the Plaintiff by the United States Constitution, First and Fourteenth Amendments and OSHA
Defendants filed the instant motion to dismiss for lack of subject matter jurisdiction and failure to state a claim on October 23, 1997. Plaintiff filed his untimely opposition on December 29, 1997 to which Defendants replied on January 7, 1998. This matter came on for hearing on January 12, 1998.
STANDARD OF REVIEW
I. MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION
A motion to dismiss for lack of subject matter jurisdiction under Rule
II. MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM
Under Rule 12(b)(6), in determining whether a motion to dismiss for failure to state a claim upon which relief can be granted, this Court must accept as true the plaintiff's allegations contained in the complaint and view them in a light most favorable to the plaintiff. Scheuer v. Rhodes,
In essence, as the Ninth Circuit has stated, "[t]he issue is not whether a plaintiff's success on the merits is likely but rather whether the claimant is entitled to proceed beyond the threshold in attempting to establish his claims." De La Cruz v. Tormey,
A motion under Rule 12(b)(6) should also be granted if an affirmative defense or other bar to relief is apparent from the face of the Complaint, such as absolute immunity or the statute of limitations. 2A J. Moore, W. Taggart & J. Wicker, Moore's Federal Practice, ¶ 12.07 at 12-68 to 12-69 (2d ed.1991 & supp. 1191-92) (citing Imbler v. Pachtman,
I. Statute of Limitations
Plaintiff has failed to oppose Defendants' contention that the applicable statutes of limitations have expired regarding the alleged acts of Defendants Tuminello, Hoomana, Iranon, Watkins and Fountain. Insofar as this limitations defense is readily apparent from the face of the FAC and is without opposition, the Court GRANTS Defendants' motion to dismiss as to these Defendants WITH prejudice. See Local Rule 7.4 (effective October 30, 1997).
II. 42 U.S.C. § 1983, Civil Rights, Stating A Claim
In order to state a cause of action under § 1983, a plaintiff must show (1) that a person acting under color of state law engaged in the conduct at issue, and (2) that the conduct deprived the claimant of some right, privilege, or immunity protected by the constitution or laws of the United States. Leer v. Murphy,
The Defendants are officials of Halawa, a state operated facility, thus the Court finds their actions to be under the color of state law. Regarding deprivation of a constitutional right or privilege, Plaintiff's complaint may be interpreted to allege that Defendants deprived him of his liberty interest in "personal security" by not providing him with a bodyguard. Plaintiff further alleges that the Defendants terminated him in retaliation for
A. "Personal Security"
The Fourteenth Amendment affords Plaintiff with a protected liberty interest in "personal security." Ingraham v. Wright,
In the instant case, the Court construes Plaintiff's allegations to, at most, state a claim for negligence on the part of Halawa officials in failing to provide him with a personal security guard. Even in accepting these allegations as true, the Court finds that, on these grounds, Plaintiff has failed to state a valid claim under § 1983. Rather, Defendants alleged negligence is only actionable under common law torts or an imposed contractual duty, although the question would remain whether Defendants would be shielded from liability from civil damages. The Supreme Court has expressly stated that § "1983 imposes liability for violations of right protected by the Constitution, not for duties of care arising out of tort law. Remedy for the latter type of injury must be sought in state court under traditional tort-law principles." Baker v. McCollan,
B. "Property Interest"
Plaintiff's complaint fails to allege that he had a constitutionally protected property interest in continuing his position as a Recreation Specialist III at Halawa. "To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it.... Property interests, of course, are not created by the Constitution. Rather they are created and their dimensions are defined by existing rules or understandings that stem from an independent source ..." such as state law or contracts. Board of Regents v. Roth,
C. The First Amendment and § 1983
Plaintiff's allegations of unlawful retaliation could tenably support a claim under § 1983 via the First Amendment. See e.g., Soranno's Gasco, Inc. v. Morgan,
Plaintiff has the burden of alleging constitutionally protected speech in a § 1983 claim based upon the First Amendment. To state a viable unlawful retaliation claim under § 1983, the Ninth Circuit has outlined the following factors. First, whether the plaintiff was engaged in a constitutionally-protected activity. Rendish v. City of Tacoma,
Preliminarily, the Court must determine if the First Amendment protects Plaintiff against termination for the type of speech in which he was engaged. McKinley v. City of Eloy,
Well settled is the principle that speech by public employees "may be characterized as not of `public concern' when it is clear that such speech deals with individual personnel disputes and grievances and that the information would be of no relevance to the public's evaluation of the performance of governmental agencies." McKinley, 705 F.2d at 1114, Connick, 461 U.S. at 148, 103 S.Ct. 1684. On the other hand, speech that enables the population to "make informed decisions about the operation of their government merits the highest degree" of First Amendment protection. McKinley, 705 F.2d at 1114.
The decisions of Pickering, Connick and McKinley are particularly instructive in determining whether the speech at issue is of public concern. The Court finds that Plaintiff's repeated grievances and complaints regarding his lack of safety at Halawa, i.e., his requests for a personal security guard, do not substantially involve matters of public concern. Therefore, Plaintiff was not entitled to First Amendment protection.
The Court finds that Plaintiff's allegations as stated do not articulate a cognizable legal theory and hereby GRANTS Defendants' motion to dismiss.
However, the Court is reluctant to find that leave to amend will fail to cure the apparent defects. For example, at the hearing on this matter, Plaintiff's counsel argued that Defendants violated numerous provisions of OSHA. Failure to comply with OSHA, in and of itself, does not create a private cause of action. See e.g., Taira v. Oahu Sugar Co., Ltd. 1 Haw.App. 208, 212,
For the foregoing reasons, the Court GRANTS defendant's motion to dismiss. The dismissal is WITH prejudice as to Defendants Tuminello, Hoomana, Iranon, Watkins and Fountain. Furthermore, Plaintiff is given thirty (30) days leave to amend. Failure to file an amended complaint will result in this case being dismissed WITH prejudice.
IT IS SO ORDERED.
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