Aytch v. Bed Bath & Beyond ( 2022 )

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 * * * 4 Martinez Aytch, Case No. 2:22-cv-02016-JAD-BNW 5 Plaintiff, Order 6 v. 7 Bed Bath & Beyond, 8 Defendant. 9 10 Plaintiff is proceeding pro se under 28 U.S.C. § 1915 and moved to proceed in forma 11 pauperis. ECF No. 1. Plaintiff also submitted a complaint. ECF No. 1-1. 12 I. In Forma Pauperis Application. 13 Plaintiff filed the application required by § 1915(a). ECF No. 1. Plaintiff demonstrated an 14 inability to prepay fees and costs or to give security for them. Accordingly, his request to proceed 15 in forma pauperis will be granted pursuant to 28 U.S.C. § 1915(a). The Court will now review 16 Plaintiff’s complaint. 17 II. Screening 18 Upon granting an application to proceed in forma pauperis, courts additionally screen the 19 complaint under § 1915(e). Federal courts are given the authority to dismiss a case if the action is 20 legally “frivolous or malicious,” fails to state a claim upon which relief may be granted, or seeks 21 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2). When 22 a court dismisses a complaint under § 1915, the plaintiff should be given leave to amend the 23 complaint with directions for curing its deficiencies, unless it is clear from the face of the 24 complaint that the deficiencies could not be cured by amendment. See Cato v. United States, 70 25 F.3d 1103, 1106 (9th Cir. 1995). 26 27 1 Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for dismissal of a 2 complaint for failure to state a claim upon which relief can be granted. A properly pled complaint 3 must provide a short and plain statement of the claim showing that the pleader is entitled to relief. 4 Fed. R. Civ. P. 8(a)(2); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Although Rule 5 8 does not require detailed factual allegations, it demands “more than labels and conclusions” or a 6 “formulaic recitation of the elements of a cause of action.” Ashcroft v. Iqbal, 556 U.S. 662, 678 7 (2009). The court must accept as true all well-pled factual allegations contained in the complaint, 8 but the same requirement does not apply to legal conclusions. Iqbal, 556 U.S. at 679. Mere 9 recitals of the elements of a cause of action, supported only by conclusory allegations, do not 10 suffice. Id. at 678. Additionally, where the claims in the complaint have not crossed the line from 11 conceivable to plausible, the complaint should be dismissed. Twombly, 550 U.S. at 570. Pro se 12 complaints are held to less stringent standards than pleadings drafted by lawyers. Hebbe v. Pliler, 13 627 F.3d 338, 342 & n.7 (9th Cir. 2010) (finding that liberal construction of pro se pleadings is 14 required after Twombly and Iqbal). 15 III. Analysis 16 Plaintiff alleges that Bed Bath & Beyond failed to follow Occupational Safety and Health 17 Act (OSHA) regulations, resulting in his injuries. As explained below, Plaintiff (who is a private 18 individual) does not have the right to assert an OSHA violation as a claim. To the extent Plaintiff 19 would like to assert a negligence claim against Bed Bath & Beyond, he must first establish that 20 this Court has diversity jurisdiction. As a result, this Court will dismiss the complaint with leave 21 to amend. 22 A. There is No Private Right of Action for OSHA Violations 23 OSHA requires every employer to furnish its employees with “a place of employment 24 which [is] free from recognized hazards that are causing or are likely to cause death or serious 25 physical harm to [its] employees.” 29 U.S.C. § 654. To accomplish Congress’s goal, OSHA 26 created two remedies that permit the Secretary of Labor, “proceeding before an administrative 27 agency, (1) to obtain abatement orders requiring employers to correct unsafe working conditions 1 and (2) to impose civil penalties on an employer maintaining any unsafe working condition.” 2 Atlas Roofing Co. v. Occupational Safety and Health Rev. Comm’n, 430 U.S. 442, 445 (1977). 3 Pursuant to OSHA, “[e]mployees have been granted specific rights in the investigatory 4 and rule-making stages of the Act, including the right to . . . request that the Secretary [of Labor] 5 conduct a workplace inspection when employees suspect that a violation has occurred.” Donovan 6 v. Occupational Safety and Health Rev. Comm’n, 713 F.2d 918, 926 (2d Cir. 1983); accord 7 Donovan v. Local 962, Int'l Chem. Workers Union, 748 F.2d 1470 (11th Cir. 1984). 8 But “[n]owhere in the language of the Act, its legislative history, or in the statutory 9 declaration of purpose and policy in the Act itself is there the slightest implication that Congress 10 considered OSHA creating a private right of action for violation of its terms.” Jeter v. St. Regis 11 Paper Co., 507 F.2d 973, 976 (5th Cir. 1975); see also Am. Fed'n of Gov't Emps., AFL-CIO v. 12 Rumsfeld, 321 F.3d 139, 143–44 (D.C. Cir. 2003) (citing cases). Since OSHA does not create a 13 private right of action, Plaintiff has not stated a cognizable claim upon which relief may be 14 granted. 15 B. Plaintiff Must Demonstrate Subject Matter Jurisdiction If He Intends to Assert a Negligence Claim 16 17 In addition to federal question jurisdiction, federal district courts have original jurisdiction 18 over civil actions in diversity cases “where the matter in controversy exceeds the sum or value of 19 $75,000” and where the matter is between “citizens of different States.” 28 U.S.C. § 1332(a). 20 “Section 1332 requires complete diversity of citizenship; each of the plaintiffs must be a citizen 21 of a different state than each of the defendants.” Morris v. Princess Cruises, Inc., 236 F.3d 1061, 22 1067 (9th Cir. 2001). 23 Here, Plaintiff asserts that he is a citizen of Nevada and that Bed Bath & Beyond is 24 incorporated under the laws of Nevada and has its principal place of business in Nevada. Based 25 on these facts, diversity jurisdiction does not exist. 26 Plaintiff is advised that if he files an amended complaint, the original complaint (ECF No. 27 1-1) no longer serves any function in this case. The Court cannot refer to a prior pleading or to 1 other documents to make Plaintiff’s amended complaint complete. The amended complaint must 2 be complete in and of itself without reference to prior pleadings or to other documents. 3 IV. CONCLUSION 4 IT IS THEREFORE ORDERED that plaintiff’s application for leave to proceed in 5 forma pauperis (ECF No. 1) is GRANTED. Plaintiff is permitted to maintain this action to 6 conclusion without prepaying fees or costs or giving security for them. 7 IT IS FURTHER ORDERED that the Clerk of Court must detach and separately file 8 Plaintiff’s complaint (ECF No. 1-1). 9 IT IS FURTHER ORDERED that Plaintiff’s complaint is dismissed without prejudice 10 and with leave to amend. If Plaintiff chooses to file an amended complaint, he must do so by 11 January 15, 2023 or this Court will recommend that his case be dismissed. 12 13 DATED: December 12, 2022 14 BRENDA WEKSLER 15 UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27