United States District Court, D. South Dakota, Western Division
JEFFREY L. VIKEN, CHIEF JUDGE.
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 p. 3.
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.
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.
filed motions to dismiss. (Dockets 14, 16, 19 & 22).
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
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).
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.
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.
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.
pursues Title VII claims against individual defendants, none