The defendants in these consolidated cases were not served with process in the district court and *

are not participating in these appeals. After examining the appellant’s briefs and the records, we have

concluded that oral argument is unnecessary. See FED. R. APP. P. 34(a)(2).

United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted August 18, 2009*

Decided August 20, 2009

Before

ANN CLAIRE WILLIAMS, Circuit Judge

DIANE S. SYKES, Circuit Judge

JOHN DANIEL TINDER, Circuit Judge

No. 09-2285

RICHARD HOEFT,

Plaintiff-Appellant,

v.

BRIAN DOMMISSE, et al.,

Defendants-Appellees.

Appeal from the 

United States District Court for the 

Eastern District of Wisconsin.

No. 09 CV 0221

Charles N. Clevert, Jr.,

Judge.

No. 09-2290

RICHARD HOEFT,

Plaintiff-Appellant,

v.

RICHARD DAVIES, et al.,

Defendants-Appellees.

Appeal from the 

United States District Court for the 

Eastern District of Wisconsin.

No. 09 CV 0238

Charles N. Clevert, Jr.,

Judge.

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1
Nos. 09-2285 & 09-2290 Page 2

O R D E R

After Richard Hoeft was released from prison in Wisconsin, he filed two related

lawsuits arising from his participation in a work-release program. In each lawsuit Hoeft

sought and received leave to proceed in forma pauperis, but both times the district court

immediately dismissed the complaint under 28 U.S.C. § 1915(e)(2) for failure to state a

claim. Hoeft appeals both dismissals, and we have consolidated the cases for decision

because the claims are similar and two of the defendants overlap. Hoeft’s complaint in

appeal No. 09-2290 alleges that he was exposed to unsafe working conditions at Derco

Manufacturing, Inc., and that Richard Davies, his supervisor at Derco, fired him with

backing from prison employees Candace Buwalda and Mark Ramsey when he threatened

to contact the Occupational Health and Safety Administration (“OSHA”). Hoeft’s

complaint in appeal No. 09-2285 alleges that Mayville Engineering Company, Inc., a

different employer, fired him when he announced he would be seeking worker’s

compensation for a job-related injury. The second complaint further alleges that Buwalda

and Ramsey conspired with Mayville and fellow prison employees Brian Dommisse and

Chuck Larson to thwart Hoeft’s claim for benefits. We conclude that the complaint

involving Mayville Engineering was properly dismissed, but we vacate the dismissal of

Hoeft’s other lawsuit and remand for further proceedings.

At this stage we must accept as true the allegations in Hoeft’s complaints. See Vill. of

DePue, Ill. v. Exxon Mobil Corp., 537 F.3d 775, 782 (7th Cir. 2008). During the first half of

2008, Hoeft participated in the work-release program at Fox Lake Correctional Institution. 

In February and March he worked at Derco Manufacturing, where Davies refused his

requests for safety equipment, including goggles, gloves, and a respirator. Hoeft wanted

the goggles to shield his eyes from the debris of a faulty table saw and a metal grinder, and

the respirator and gloves to protect himself from caustic chemicals and paint fumes that

caused a severe cough and irritated his skin and eyes. When Hoeft told Davies that he

would report these conditions to OSHA, Davies threatened to fire Hoeft and then to report

his purported insolence to Ramsey and Buwalda, the coordinators of the work-release

program, in order to keep Hoeft from getting another assignment. Undeterred, Hoeft took

his complaint to Buwalda and Ramsey, who responded that Hoeft would be sorry if he

gave Davies any more trouble. Davies then fired Hoeft on March 24.

After that Hoeft was reassigned to Mayville Engineering. On April 28 he told his

supervisor that he was experiencing symptoms of carpal tunnel syndrome. The supervisor

replied that Hoeft could not prove that the pain in his hands, wrists, and forearms was

work related and ordered him to get back to work. The next morning Hoeft disclosed his

symptoms to Ramsey, who promised to contact Mayville and assured Hoeft that he would
Nos. 09-2285 & 09-2290 Page 3

be covered by worker’s compensation. Several hours later, however, Hoeft learned from

Dommisse, a captain, that someone from Mayville had called about Hoeft’s condition. 

When Hoeft informed Dommisse that he “didn’t see how he could” work at Mayville any

longer given the severity of his pain and that he would apply for worker’s compensation

instead of returning to his job, Dommisse angrily replied that Hoeft would not “collect

worker’s comp. on Mayville.” Dommisse took Hoeft to Larson, a prison physician, who

conducted a cursory examination. Before the end of the day Hoeft received a letter from

Dommisse announcing Dr. Larson’s conclusion that his ailments were not work related and

telling him that he no longer could participate in the work-release program because his

status had been downgraded to light duty. Hoeft also was fired by Mayville that day. He

later confronted Buwalda and Ramsey, who said they had discussed the matter with

Dommisse, Larson, and a Mayville representative. Everyone, explained Buwalda and

Ramsey, agreed with Dr. Larson that Hoeft’s carpal tunnel was not work-related. The two

coordinators rejected Hoeft’s request to get an opinion from an outside doctor, and they

emphasized that Hoeft would not be permitted to jeopardize the prison’s work-release

contract with Mayville by filing a claim for worker’s compensation.

Hoeft filed both lawsuits in March 2009. His complaint involving Derco

Manufacturing claims that the company and Davies violated federal and state law by

maintaining an unsafe workplace and retaliating when he complained to Davies and

threatened to contact OSHA. The complaint also claims that the actions of Davies,

Buwalda, and Ramsey violated Hoeft’s rights under the First Amendment. In dismissing

the lawsuit for failure to state a claim, the district court reasoned that Hoeft’s discharge in

retaliation for “internal complaints about workplace conditions” did not violate federal

law, and that his complaint, even read liberally, did not otherwise provide sufficient detail

to “indicate how each defendant violated his federal rights.” The court did not discuss

possible claims arising under state law.

Hoeft’s complaint involving Mayville Engineering principally claims that the

company and four prison employees violated the Constitution by impeding Hoeft’s “right”

to collect worker’s compensation. The complaint also claims that the actions of the

defendants violated the Americans with Disabilities Act (“ADA”), see 42 U.S.C. § 12112(a),

and that Mayville wrongfully fired Hoeft due to a work-related injury. In dismissing this

complaint, the district court questioned, but did not decide, whether Hoeft had a federally

protected interest in state-law benefits. The court reasoned, instead, that Hoeft’s factual

recitation undercuts his claim that the defendants had interfered with his pursuit of a claim

for benefits. The court added that Hoeft could not have a claim under the ADA because he

did not allege that any defendant had denied him access to services, programs, or activities

on account of an alleged disability. The court did not discuss the claim against Mayville for

wrongful termination, which the court characterized as a claim arising under state law.
Nos. 09-2285 & 09-2290 Page 4

We start with Hoeft’s job at Derco Manufacturing. On appeal Hoeft argues that the

district court erred in dismissing that lawsuit because, Hoeft says, his complaint describes a

conspiracy between Davies, Buwalda, and Ramsey to terminate his employment on

account of his threat to notify OSHA about unsafe working conditions at Derco. Our

review of a dismissal under § 1915(e)(2)(B)(ii) is de novo, DeWalt v. Carter, 224 F.3d 607, 611

(7th Cir. 2000), and we will overturn the dismissal of Hoeft’s pro se complaint if a generous

reading allows us to infer that it identifies the parties, purpose, and approximate dates of a

plausible conspiracy to violate the constitution or federal law, see Bell Atl. Corp. v. Twombly,

550 U.S. 544, 570 (2007); Bridges v. Gilbert, 557 F.3d 541, 552 (7th Cir. 2009); Killingsworth v.

HSBC Bank Nev., N.A., 507 F.3d 614, 618 (7th Cir. 2007); Reynolds v. Jamison, 488 F.3d 756, 764

(7th Cir. 2007); Loubser v. Thacker, 440 F.3d 439, 443 (7th Cir. 2006).

The Occupational Health and Safety Act of 1970, 29 U.S.C. §§ 651-678, provides a

comprehensive regulatory framework for promoting workplace safety. See Jeter v. St. Regis

Paper Co., 507 F.2d 973, 976 (5th Cir. 1975); Nat’l Roofing Contractors Ass’n v. Brennan,

495 F.2d 1294, 1295 (7th Cir. 1974). A business may be subject to administrative or judicial

sanctions if management ignores OSHA safety standards or retaliates against workers who

alert OSHA to unsafe conditions. See 29 U.S.C. §§ 658(a), 659, 660(b) & (c). But only the

Secretary of Labor may sue to enforce the Act, which does not provide individual

employees with any express or implied right of action. Mason v. Ashland Exploration, Inc.,

965 F.2d 1421, 1425 (7th Cir. 1992); George v. Aztec Rental Ctr., Inc., 763 F.2d 184, 186 (5th Cir.

1985); Taylor v. Brighton Corp., 616 F.2d 256, 264 (6th Cir. 1980). Accordingly, Hoeft’s

allegations do not state a claim under the Act against any defendant.

On the other hand, workplace safety is a matter of public concern, and courts have

acknowledged that an employee’s complaints about job hazards may qualify as protected

speech. See Coszalter v. City of Salem, 320 F.3d 968, 974 (9th Cir. 2003); Munafo v. Metro.

Transp. Auth., 285 F.3d 201, 211-12 (2d Cir. 2002); Lee v. Nicholl, 197 F.3d 1291, 1294-96 (10th

Cir. 1999). And though Hoeft does not contend that Derco is a state actor by virtue of

employing inmates on work release, a private actor can nonetheless be liable under

42 U.S.C. § 1983 if that individual or entity conspires with a state actor to violate the

plaintiff’s constitutional rights. Reynolds, 488 F.3d at 764; Mullin v. Gettinger, 450 F.3d 280,

284 (7th Cir. 2006); Radcliffe v. Rainbow Constr. Co., 254 F.3d 772, 783 (9th Cir. 2001). 

Buwalda and Ramsey did not terminate Hoeft’s employment at Derco

Manufacturing. And Davies, who did fire Hoeft, is not a state actor. As Hoeft appears to

recognize, then, his lawsuit will go forward only if we may infer that Davies sought and

received a green light from Buwalda and Ramsey before firing Hoeft in retaliation for his
Nos. 09-2285 & 09-2290 Page 5

complaints about unsafe workplace conditions. The question is close, but we conclude that

Hoeft’s complaint, read liberally, sufficiently raises that inference. Hoeft certainly

identifies workplace conditions that from our lay perspective, might be characterized as

unsafe. And he alleges that when he confronted Davies about those conditions, he was told

that if he contacted OSHA, he would be fired and that Davies would see to it that Buwalda

and Ramsey would keep him from getting another work-release assignment. Ramsey and

Buwalda, for their part, afterward warned Hoeft that he would be sorry if he further

troubled Davies, who then fired Hoeft. Although Hoeft never uses the word “conspiracy”

or says explicitly that Davies fired him after reaching an understanding with Buwalda and

Ramsey, the substance of Hoeft’s separate conversations first with Davies and then with

the two prison employees raises that inference, as does the fact that Davies did not fire

Hoeft until after the program coordinators had warned Hoeft not to make any more trouble

for Davies. We note also that in his complaint Hoeft cites 42 U.S.C. § 1985, and while that

statute provides a civil remedy only for civil-rights conspiracies that are class based, see

Smith v. Gomez, 550 F.3d 613, 617 (7th Cir. 2008); Nowicki v. Ullsvik, 69 F.3d 1320, 1325 (7th

Cir. 1995), the reference imparts Hoeft’s intention to plead a conspiracy claim. 

Accordingly, we conclude that Hoeft states a First Amendment conspiracy claim against

Derco, Davies, Buwalda, and Ramsey. On remand the district court should allow that

claim to proceed and also assess in the first instance whether Hoeft’s complaint raises any

supplemental state-law claims against Derco and Davies. See Morfin v. City of E. Chi.,

349 F.3d 989, 1007 n.17 (7th Cir. 2003). 

We reach a different conclusion about Hoeft’s lawsuit involving Mayville

Engineering. On appeal Hoeft abandons his ADA claim and his claims against Mayville. 

He argues only that the district court erred in dismissing what he describes as a conspiracy

between Dommisse, Larson, Buwalda, and Ramsey to prevent him from filing a claim for

worker’s compensation in order to protect the prison’s relationship with Mayville.

We agree with the district court that Hoeft’s complaint fails to state a cognizable

conspiracy claim because his allegations do not plausibly suggest that the four prison

employees engaged in conduct that violated federal law. In his complaint Hoeft makes a

passing reference to the First Amendment, but under existing precedent a conspiracy

aimed at getting Hoeft fired from Mayville after he announced his intention to apply for

worker’s compensation would not violate the First Amendment: An employee’s desire for

an award of individualized benefits for a specific job-related injury implicates only a

personal interest and not a matter of public concern. See McElroy v. Lopac, 403 F.3d 855,

858-59 (7th Cir. 2005); Valot v. Se. Local Sch. Dist. Bd. of Educ., 107 F.3d 1220, 1226-27 (6th Cir.

1997); see also Bridges, 557 F.3d at 552 n.13 (declining to decide whether renunciation of

public-concern standard for most forms of prisoner speech should apply equally to speech

by a prisoner-employee). Moreover, even if Hoeft’s pain was attributable to his brief
Nos. 09-2285 & 09-2290 Page 6

employment at Mayville, the district court correctly recognized that by Hoeft’s account, the

defendants did nothing to prevent him from filing a claim for worker’s compensation. 

Hoeft says that he was fired “over the workers compensation issue,” but, in fact, the

premise of Hoeft’s complaint is that he intended to apply for worker’s compensation instead

of returning to his job at Mayville. Indeed, Hoeft did not lose his job at Mayville the day he

discussed with his supervisor whether his pain was job-related; rather, he lost his job the

following day when he did not show up for work and told Dommisse that the pain he was

experiencing prevented him from working at Mayville. And Hoeft has never alleged that

after his job ended, he tried to file a claim but was thwarted by the defendants or that they

punished him for trying. Thus, whether we view Hoeft’s claim as arising under the First

Amendment or—following the district court’s lead—under the Due Process Clause, the

result is the same: The prison employees did not take any retaliatory action or do anything

to impede Hoeft from exercising any right. Accordingly, this lawsuit was properly

dismissed.

There remains one additional matter. Hoeft argues in these appeals that Judge

Clevert, who is African-American and presided over both lawsuits, should have recused

himself. Hoeft explains that he espouses “Aryan beliefs” and that Judge Clevert had to

know about those beliefs because he presided over—and dismissed all but one of—Hoeft’s

many prior lawsuits. But judges are presumed to rise above biasing influences, Tezak v.

United States, 256 F.3d 702, 718 (7th Cir. 2001), and Hoeft offers no reason to question Judge

Clevert’s ability to be fair. Hoeft seizes upon the dismissal of his earlier cases, but adverse

rulings do not establish bias. See United States v. Morgan, 384 F.3d 439, 444 (7th Cir. 2004);

Grove Fresh Distrib., Inc. v. John Labatt, Ltd., 299 F.3d 635, 640 (7th Cir. 2002). 

Accordingly, the judgment in appeal No. 09-2290 is VACATED, and that case is

REMANDED for further proceedings consistent with this order. The judgment in appeal

No. 09-2285 is AFFIRMED.