Respondents Brief — Johnny Kirkland, Petitioner v. Huntington Ingalls, Incorporated

Supreme Court briefJul 30, 2019

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Case No. 19-5173

IN THE

Supreme Court of the Anited States

JOHNNY KIRKLAND, Petitioner

versus

HUNTINGTON INGALLS INCORPORATED, Respondent

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

APPENDIX OF RESPONDENT SUBMITTED WITH

OPPOSITION TO PETITION FOR WRIT OF CERTIORARI

Richard P. Salloum, Counsel of Record

Traci Castille

Franke & Salloum, PLLC

10071 Lorraine Road (39503)

P. O. Drawer 460

Gulfport, MS 39502

Telephone: 228-868-7070

Facsimile: 2280868-7090

rps@frslaw.com

tmc@frslaw.com

Appendix A:

Appendix B:

Appendix C:

Appendix D:

Appendix E:

Appendix F:

Index to Appendices

Per Curium Opinion of United States Court of Appeals for the

Fifth Circuit dated March 18, 2019

District Court’s Memorandum Opinion and Order Granting

Defendant Huntington Ingalls Incorporated’s Motion for

Summary Judgment with Final Judgment of Dismissal dated

September 11, 2019

United States Court of Appeals for the Fifth Circuit’s Order

Denying Petition for Rehearing dated April 23, 2019

United States Court of Appeals for the Fifth Circuit’s Mandate

dated May 1, 2019

District Court’s Order Denying Plaintiff Johnny Kirkland’s

Motion to Reinstate Dismissed Case dated October 1, 2018

Affidavit of Steven Pierce dated November 1, 2017

Case: 18-60710 Document: 00514877678 Page:1 Date Filed: 03/18/2019

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 18-6071 0 United States Cour of Appeals

i ircuit

Summary Calendar FILED

March 18, 2019

JOHNNY KIRKLAND, Lyle as eayee

. er

Plaintiff - Appellant

HUNTINGTON INGALLS, INCORPORATED,

Defendant - Appellee

Appeal from the United States District Court

for the Southern District of Mississippi

USDC No. 1:17-CV-135

Before KING, SOUTHWICK, and ENGELHARDT, Circuit Judges.

PER CURIAM:*

Appellant Johnny Kirkland, proceeding pro se, filed suit seeking

recovery for various injuries related to his employment by appellee Huntington

Ingalls, Inc. (“Ingalls”), in the 1970s. The district court determined that

Kirkland’s claims were preempted by the Longshore and Harbor Workers’

Compensation Act (““LHWCA’), see 33 U.S.C. §§ 901-950, or otherwise barred

by the applicable statutes of limitations. The LHWCA “provides nonseaman

* Pursuant to 5TH Cir. R. 47.5, the court has determined that this opinion should not

be published and is not precedent except under the limited circumstances set forth in 5TH

Cir. R. 47.5.4.

APPENDIX A

Case: 18-60710 Document: 00514877678 Page:2 Date Filed: 03/18/2019

No. 18-60710

maritime workers ... with no-fault workers’ compensation claims (against

their employer, § 904(b)) and negligence claims (against the vessel, § 905(b))

for injury and death.” Norfolk Shipbuilding & Drydock Corp. v. Garris, 532

U.S. 811, 818 (2001). Relevant here, the LHWCA “expressly pre-empts all other

claims” the employee may have against his employer. /d. (citing § 905(a)).

Kirkland first alleges that Ingalls exposed him to asbestos as well as

other hazardous workplace conditions. These allegations conditions relate

exclusively to Kirkland’s work for Ingalls in the field of ship construction and

repair. Therefore, they are governed by the LHWCA, and Kirkland may not

sue Ingalls for injuries sustained on the job. Kirkland does not dispute that

Ingalls is covered by the LHWCA; instead, he argues that his specific claims

fall outside the scope of that statute under the dual capacity doctrine. Under

that doctrine, a plaintiff may sue an employer otherwise covered by the

LHWCA for negligence in its capacity as a vessel owner as if it were a third

party. Levene v. Pintail Enters., Inc., 943 F.2d 528, 531 (5th Cir. 1991). But

Kirkland does not allege that he was injured by the negligence of one of Ingalls’

vessels. Accordingly, the dual capacity doctrine does not apply and these claims

are preempted.

Kirkland next claims that Ingalls violated Mississippi's child labor

statute by hiring him at the age of 13. See Miss. Code Ann. § 71-1-17 (‘No boy

or girl under the age of fourteen years shall be employed or permitted to work

in any mill, cannery, workshop, factory, or manufacturing establishment

within this state.”). We need not consider how this relates to LHWCA’s

preemptive scope, because the claim is barred by Mississippi’s statute of

limitations. Kirkland alleges that he began working for Ingalls in 1971 and left

in 1978. Mississippi has a three-year statute of limitations for any action

which, like this one, lacks a prescribed statutory period. Miss. Code Ann. § 15-

1-49(1). Whatever the precise date of accrual, the statutory period for

Case: 18-60710 Document: 00514877678 Page:3 Date Filed: 03/18/2019

No. 18-60710

Kirkland’s claim expired long before 2017, when Kirkland filed this lawsuit.

Kirkland’s child-labor claim is therefore barred.

The judgment of the district court is therefore AFFIRMED.

Case 1:17-cv-00135-HSO-JCG Document 75 Filed 09/11/18 Page 1 of 15

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF MISSISSIPPI

SOUTHERN DIVISION

JOHNNY KIRKLAND . | PLAINTIFF

Vv. CIVIL NO. 1:17-cv135-HSO-JCG

HUNTINGTON INGALLS INCORPORATED DEFENDANT

MEMORANDUM OPINION AND ORDER GRANTING

DEFENDANT HUNTINGTON INGALLS INCORPORATED’S

MOTION FOR SUMMARY JUDGMENT [50] AND DENYING

AS MOOT DEFENDANT’S MOTION TO DISMISS [48]

This matter is before the Court on Defendant Huntington Ingalls

Incorporated’s Motion to Dismiss [48] or in the alternative Motion for Summary

Judgment [50]. This Motion is fully briefed. After review of the Motions, the

Response, the related pleadings, the record, and relevant legal authority, the Court

finds that Defendant Huntington Ingalls Incorporated’s Motion for Summary

Judgment [50] should be granted and Plaintiff Johnny Kirkland’s claims should be

dismissed. Defendant’s Motion to Dismiss [48] should be denied as moot.

I. BACKGROUND

A. Facts and procedural history

Construing the relevant facts in the light most favorable to the nonmoving

party, in either 1971 or 1978, Plaintiff Johnny Kirkland (“Kirkland”) was hired by

Defendant Huntington Ingalls Incorporated (“Ingalls”). Employee Separation

Certificate [6-1] at 4. According to Ingalls, the actual last workday of Kirkland’s

employment was September 18, 1978, and he was released from employment on

APPENDIX B

Case 1:17-cv-00135-HSO-JCG Document 75 Filed 09/11/18 Page 2 of 15

September 25, 1978, based upon a designation of “CODE 32-PROBATIONARY

RELEASE-MISSING TIME.” Id.

Invoking federal question jurisdiction, Kirkland filed a pro se Complaint [1]

in this Court on May 2, 2017, naming as Defendants Ingalls Shipyard, John (sic)

Manville, and Fibre Board. Plaintiff asserts that while he was employed at Ingalls

Shipyard, he was exposed to asbestos which resulted in “his illness” in violation of

his rights under the Eighth and Fourteenth Amendments to the United States

Constitution. Compl. [1] at 1-5. Kirkland seeks damages in the amount of “2.8

MILLION.” Id. at 4.

After the Magistrate Judge entered an Order [4] requiring additional

information on the issue of subject-matter jurisdiction, Kirkland filed a Response [6]

contending that Defendants acted under color of state and federal law while causing

his damages. Resp. [6] at 1-5. Kirkland alleges that Ingalls Shipyard was his

employer, while John (sic) Manville and Fibre Board were suppliers, and that

Defendants violated his Fourteenth Amendment rights by “failing to protect my

safety and health from harmful chemicals” that were sold by John (sic) Manville

and Fibre Board to Ingalls Shipyard. Jd. Kirkland asserts that his

rights under the Eighth Amendment was (sic) violated by hollowing (sic)

at me, and threatening to fire me if I didn’t do what he told me to do,

and by working me under age.

Id. at 5. Kirkland states that he began working at Ingalls Shipyard in 1971 at the

age of 13, although he stated on his application that he was 18. Jd. at 4. Kirkland

Case 1:17-cv-00135-HSO-JCG Document 75 Filed 09/11/18 Page 3 of 15

worked as a third class laborer, which included cleaning up, painting, cleaning

insulation, grinding rust off tanks, cleaning out chemical tanks, and pipe fitting, all

in the bottom of ships without any safety gear. Id.

Based upon the Exhibits [6-1] attached to Plaintiffs Response [6] to the

Magistrate Judge’s Order, the Magistrate Judge directed the Clerk of Court to

“alter the docket to reflect that Defendants’ proper names are: The Ingalls

Shipbuilding Corporation, Johns Manville, and Fibreboard Corporation.” Order [7]

at l.

Kirkland next filed an Amended Complaint [22], without leave of Court, on

October 4, 2017, naming additional Defendants but dismissing Johns Manville.!

Am. Compl. [22] at 1-9. Kirkland states, in pertinent part, that he worked at age 13

as a laborer in the “27th Department” painting, cleaning up, carrying out insulation

in the trash, sand blasting, and rust grinding. Jd. at 6. Kirkland further asserts

that, in addition to the illness he suffers from asbestos exposure, he experienced

chemical burns on his skin and hearing loss due to the loud noise at the shipyard

and due to a piece of “hot steel” that flew into his ear. Jd. at 6-7. Kirkland seeks

damages in the amount of “5 or TEN BILLION DOLLARS,” and claims that his

1 The Magistrate Judge later entered another Order [57] which corrected the

docket to reflect that Defendant Huntington Ingalls Incorporated (“Ingalls”) was

that Defendant’s proper corporate name. The Court has also entered Orders [80]

[35] granting Kirkland’s subsequent Motions to Dismiss [29] [31] [82] all

Defendants other than Ingalls. Thus, Ingalls is the sole remaining Defendant in

this case.

Case 1:17-cv-00135-HSO-JCG Document 75 Filed 09/11/18 Page 4 of 15

father worked at Ingalls and was exposed to asbestos, which somehow contributed

to Plaintiffs illness. Id.

On December 4, 2017, Kirkland filed a Second Amended Complaint [36]

which was stricken from the record by the Magistrate Judge for noncompliance with

Federal Rule of Civil Procedure 15. Order [88]. Kirkland then filed a Motion to

Amend Pleadings [46] on February 2, 2018, apparently seeking to supplement his

Amended Complaint with an allegation that Ingalls failed to screen his employment

application, or it would have discovered that he was a minor and that he had used

his cousin’s Social Security number to obtain employment. The Court granted this

Motion [46] as unopposed.

B. Ingalls’ Motion to Dismiss [48] or, alternatively, its Motion for

Summary Judgment [50/2

Ingalls has filed a Motion to Dismiss pursuant to Federal Rule Civil

Procedure 12(b)(1) and 12(b)(6), Mot. to Dismiss [48], or, alternatively, for Summary

Judgment, Mot. Summ. J. [50]. Specifically, Ingalls contends that Kirkland’s

claims are within the exclusive jurisdiction of the Longshore and Harbor

Workers’ Compensation Act, 33 U.S.C. 901 et seg. (LHWCA) and are

barred by the exclusive remedy provision of § 905(a) of that Act. In the

alternative, to the extent Plaintiffs claims are not preempted by the

LHWCA, his claims fail to state a claim upon which relief can be granted

because they are implausible and/or time barred by § 15-1-49(1) of the

Mississippi Code.

2 Uniform Local Rule 7 states that a motion, a response in opposition, and a reply

in support may be filed by the parties. In the present case, the parties have also

filed a number of additional pleadings. Without addressing the legitimacy of these

other pleadings, the Court has reviewed them all and determined that the

arguments they contain would not alter the conclusions reached here.

Case 1:17-cv-00135-HSO-JCG Document 75 Filed 09/11/18 Page 5 of 15

Mot. to Dismiss [48] at 1; Mot. for Summ. J. [50] at 1. In support of its Motions,

Ingalls attaches the Affidavit of Steve Pierce (“Pierce”), Manager-Risk Management

of Northrop Grumman Shipbuilding, Inc., which avers that while Kirkland was

employed there in 1978, Ingalls maintained workers’ compensation coverage under

both the Mississippi Workers’ Compensation Act and the LHWCA.2 In addition,

Ingalls required all of its subcontractors to carry workers’ compensation coverage.

Pierce Affs. [48-1] at 1; [50-1] at 1.

In response, Kirkland admits that Ingalls is “covered under the LHWCA” but

argues for the first time that, in addition to any claims that fall within the purview

of the LHWCA, he is also “suing Huntington Ingalls Incorporation (sic) under the

Dual Capacity Doctrine for strict liability in tort, breach of duty, negligence,

punitive damages, and illegal underage working,” citing Mississippi Code § 71-1-17.

Mem. in Opp’n [63] at 1-5. Kirkland also posits that his claims are not barred

“according to § 15-1-49(2) of the Mississippi Code,” and that the LHWCA would not

want anything to do with Ingalls “hiring underage children and exposing them to

asbestos.” Resp. in Opp’n [62] at 1-2.

3 According to the Affidavit, Ingalls’ coverage was provided “through American

Mutual Insurance Company from 1941 to at least 1983 under various types of

workers’ compensation plans.” Ingalls also required its subcontractors to carry

workers’ compensation insurance during this entire time period. Pierce Affs. [48-1]

at 1; [50-1] at 1. Thus, taking as true Kirkland’s allegation that he worked at

Ingalls in 1971, any claims related to his 1971 employment were covered by

workers’ compensation insurance.

Case 1:17-cv-00135-HSO-JCG Document 75 Filed 09/11/18 Page 6 of 15

Ingalls replies that to the extent Kirkland’s claims are not preempted by the

LHWCA, they are barred by the three-year statute of limitations found at

Mississippi Code § 15-1-49(1). Ingalls maintains that although Kirkland is

asserting for the first time in his Response that his injuries were latent, such that

they fall within the exception set forth at Mississippi Code § 15-1-49(2), Kirkland

has failed to come forward with relevant material evidence to support such a

contention. Reply [65] at 1-5.

Il. DISCUSSION

A, Relevant legal standards

1. Motion to Dismiss

Federal Rule of Civil Procedure 12(b)(1) permits a party to challenge the

subject-matter jurisdiction of the district court to hear a case. Ramming v. United

States, 281 F.3d 158, 161 (5th Cir. 2001). Subject-matter jurisdiction may be

determined on the basis of: “(1) the complaint alone; (2) the complaint supplemented

by undisputed facts evidenced in the record; or (8) the complaint supplemented by

undisputed facts plus the court’s resolution of disputed facts.” Jd. The burden of

proof on a Rule 12(b)(1) motion rests with the party seeking to invoke the Court’s

jurisdiction. Id. (citation omitted). “When a Rule 12(b)(1) motion is filed in

conjunction with other Rule 12 motions, the court should consider the Rule

(12)(b)(1) jurisdictional attack before addressing any attack on the merits.” Jd.

(citation omitted). Because Kirkland has alleged that Ingalls violated his federal

Case 1:17-cv-00135-HSO-JCG Document 75 Filed 09/11/18 Page 7 of 15

constitutional rights, the Court finds that it has subject-matter jurisdiction

pursuant to 28 U.S.C. § 13831.

In considering a motion to dismiss under Rule 12(b)(6), a court accepts “all

well-pleaded facts as true” and views them in the light most favorable to the

plaintiff. Firefighters’ Ret. Sys. v. Grant Thornton, LLP, 894 F.3d 665, 669 (5th Cir.

2018) (quotation omitted). “To survive a motion to dismiss, a complaint must

contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is

plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell

Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Specifically, a plaintiff must

plead “factual content that allows the court to draw the reasonable inference that

the defendant is lable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing

Twombly, 550 U.S. at 556).

“(T]he mere presence of additional issues in the record” does not require a

court to treat a motion to dismiss pursuant to Rule 12(b)(6) as one for summary

judgment. Britton v. Seale, 81 F.3d 602, 605 n.1 (5th Cir. 1996) (citation omitted).

In addition, “[djocuments that a defendant attaches to a motion to dismiss are

considered part of the pleadings if they are referred to in the plaintiff's complaint

and are central to [plaintiffs] claim.” Causey v. Sewell Cadillac-Chevrolet, Inc., 394

F.3d 285, 288 (5th Cir. 2004) (citation omitted). Federal Rule of Civil Procedure

12(d) provides, however, that “on a motion under Rule 12(b)(6) or 12(c), when

matters outside the pleadings are presented to and not excluded by the court, the

Case 1:17-cv-00135-HSO-JCG Document 75 Filed 09/11/18 Page 8 of 15

motion must be treated as one for summary judgment under Rule 56.” FED. R. CIv.

P. 12(d).

Based on the foregoing authority and the nature of the attachments to the

Motion to Dismiss, the Court is of the view that it should consider Ingalls’

arguments under the summary judgment standard, rendering its Motion to Dismiss

moot.

2. Motion for Summary Judgment

“Summary judgment is appropriate when there is no genuine issue as to any

material fact, and the moving party is entitled to judgment as a matter of law.” Cox

v. Wal-Mart Stores E., L.P., 755 F.3d 231, 233 (th Cir. 2014); see Fed. R. Civ. P.

56(a). In deciding a motion for summary judgment, a court “view[s] the evidence

and draw[s] reasonable inferences in the light most favorable to the nonmoving

party.” Hemphill v. State Farm Mut. Auto. Ins. Co., 805 F.3d 535, 538 (5th Cir.

2015) (quoting Cox, 755 F.3d at 233); Maddox v. Townsend & Sons, Inc., 639 F.3d

214, 216 (5th Cir. 2011).

Before it can determine that there is no genuine issue for trial, a court must

be satisfied that “the record taken as a whole could not lead a rational trier of fact

to find for the non-moving party.” Matsushita Elec. Indus. Co. v. Zenith Radio

Corp., 475 U.S. 574, 587 (1986). If the movant carries this burden, “the nonmovant

must go beyond the pleadings and designate specific facts showing that there is a

genuine issue for trial.” Little v. Liquid Air Corp., 387 F.3d 1069, 1075 (5th Cir.

Case 1:17-cv-00135-HSO-JCG Document 75 Filed 09/11/18 Page 9 of 15

1994) (en banc); see also Lujan v. National Wildlife Federation, 497 U.S. 871, 888

(1990) (the nonmovant must set forth specific facts to contradict the specific facts

set forth by the movant, general averments are not sufficient).

To rebut a properly supported motion for summary judgment, the opposing

party must show, with “significant probative evidence,” that there exists a genuine

issue of material fact. Hamilton v. Segue Software, Inc., 232 F.3d 473, 477 (6th Cir.

2000). “A genuine dispute of material fact means that evidence is such that a

reasonable jury could return a verdict for the nonmoving party.” Royal v. CCC&R

Tres Arboles, LLC, 736 F.3d 396, 400 (5th Cir. 20138) (quotation omitted). An actual

controversy exists “when both parties have submitted evidence of contradictory

facts.” Salazar-Limon v. Houston, 826 F.3d 272, 277 (5th Cir. 2016) (quotation

omitted).

B. Ingalls’ Motion for Summary Judgment

After review of the Motion, the Response, the record as a whole, and relevant

legal authority, the Court is of the opinion that Ingalls has carried its burden of

establishing that there is no genuine issue as to any material fact and that it is

entitled to judgment as a matter of law. Kirkland concedes that a portion of his

claims against Ingalls fall within the purview of the LHWCA. Mem. in Opp’n [63]

at 2. To the extent Kirkland’s pleadings could be construed to assert any additional

tort claims that may somehow fall outside the purview of the LHWCA, the Court

Case 1:17-cv-00135-HSO-JCG Document 75 Filed 09/11/18 Page 10 of 15

agrees with Ingalls that those claims would be barred by the three-year statute of

limitations found at Mississippi Code § 15-1-49(1).

1. The LHWCA

“The LHWCA provides a cause of action for injuries sustained by a broad

range of land-based maritime workers.” Becker v. Tidewater, Inc., 335 F.3d 376, 387

(5th Cir. 2008) (citing Chandris, Inc. v. Latsis, 515 U.S. 347, 356 (1995)). “The

LHWCA provides a no-fault workers’ compensation scheme against a worker’s

employer for the death or disability of anyone engaged in maritime employment to

receive medical costs, 33 U.S.C. § 907(a), prejudgment interest, id. § 905, and twothirds of the worker’s salary for as long as the disability persists, id. § 908(a).” Id.

Succinctly stated,

LHWCA guarantees workers’ compensation for qualified beneficiaries .

.. who are injured while assisting in the construction of large ships on

or near federal navigable waters. Accordingly, a person who receives

LHWCA benefits may not sue his employer under state law for any

additional compensatory damages related to his on-the-job injury. See

33 U.S.C. §§ 905(a), 9383@); Norfolk Shipbuilding & Drydock Corp. v.

Garris, 532 U.S. 811, 818, 121 8S. Ct. 1927, 150 L. Ed. 2d 34 (2001)

(LHWCA “provides nonseaman maritime workers .. . with no-fault

workers’ compensation claims” and “expressly pre-empts all other

claims.”).

Jowers v. Lincoln Elec. Co., 617 F.3d 346, 357 (5th Cir. 2010).

Because it is beyond dispute that Kirkland’s claims arise out of his

employment with Ingalls in either ship construction or repair, his claims are

preempted by the LHWCA, which affords Ingalls immunity from the allegations

Case 1:17-cv-00135-HSO-JCG Document 75 Filed 09/11/18 Page 11 of 15

raised by Kirkland in this matter. Kirkland’s claims should be dismissed pursuant

to the LHWCA.

2. Mississippi's catchall three-year statute of limitations

Giving Kirkland every benefit of the doubt, to the extent his pleadings could

be construed to advance any state law claims not subject to the provisions of the

LHWCA, such claims are barred by the relevant statute of limitations.

In Mississippi, “[a]ll actions for which no other period of limitation is

prescribed shall be commenced within three (8) years next after the cause of such

action accrued, and not after.” Mississippi Code § 15-1-49(1). Based upon the dates

contained in the Employee Separation Certificate [6-1] provided by Kirkland, and

giving Kirkland every benefit of the doubt in terms of the dates of his employment,

he worked at Ingalls in either 1971 or 1978 for a brief period of time.4 Resp. [6] at

4; Employee Separation Certificate [6-1] at 4. Taking as true Kirkland’s allegation

that he was only thirteen years of age when he worked at Ingalls in either 1971 or

1978, the three-year statute of limitations would have started running once he

attained the age of twenty-one, either in 1979 or 1986. Mississippi Code § 15-1-59

provides that

fijf any person entitled to bring any of the personal actions mentioned

shall, at the time at which the cause of action accrued, be under the

disability of infancy or unsoundness of mind, he may bring the actions

4 Kirkland contends that he was hired by Ingalls in 1971, however the date of hire

reflected in the Employee Separation Certificate submitted by Kirkland reflects a

hire date in 1978. Whether Kirkland was hired by Ingalls in 1971 or 1978, or both,

does not change the result here.

Case 1:17-cv-00135-HSO-JCG Document 75 Filed 09/11/18 Page 12 of 15

within the times in this chapter respectively limited, after his disability

shall be removed as provided by law. However, the saving in favor of

persons under disability of unsoundness of mind shall never extend

longer than twenty-one (21) years.

Mississippi Code § 15-1-59 (Saving in favor of persons under disabilities.”).

Therefore, the statute of limitations on any state law tort claim expired three years

after Kirkland attained the age of twenty-one in either 1979 or 1986, long before he

filed his Complaint in 2017.

Although Kirkland raises the issue of a latent injury in his Response [62], he

did not plead that he suffered a latent injury. To the contrary, Kirkland stated in

his Response that he left work because of breathing problems. Resp. [6] at 2. In his

Amended Complaint, Kirkland alleges that while at work he suffered chemical

burns on his skin and hearing loss due to loud noise and hot metal flying into his

ear. Am. Compl. [22] at 6-7. The record thus supports the conclusion that Kirkland

was sufficiently aware of his alleged injuries at the time he left his employment

with Ingalls that any cause of action he may be asserting in this case accrued once

he reached the age of twenty-one. See Mississippi Code § 15-1-49(2) (“In actions for

which no other period of limitation is prescribed and which involve latent injury or

disease, the cause of action does not accrue until the plaintiff has discovered, or by

reasonable diligence should have discovered, the injury.”).

To the extent any of Kirkland’s claims could be construed to fall outside the

purview of the LHWCA, they are otherwise barred by Mississippi’s catchall three-

year statute of limitations. Any such claims should be dismissed with prejudice.

Case 1:17-cv-00135-HSO-JCG Document 75 Filed 09/11/18 Page 13 of 15

3. Kirkland’s constitutional claims

Kirkland has been eranted permission to proceed in forma pauperis in this

case pursuant to 28 U.S.C. § 1915. For this reason, even though the parties’ briefs

do not argue the federal constitutional claims raised by Kirkland in his pleadings,

the Court may address them sua sponte.

Where a plaintiff is proceeding in forma pauperis, 28 U.S.C. § 1915(e)(2)(B)

mandates dismissal “at any time” if the Court determines an action is “(i) is

frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or

(iii) seeks monetary relief against a defendant who is immune from such relief.” 28

U.S.C. § 1915(e)(2)(B). The United States Supreme Court has held that sua sponte

review of an in forma pauperis complaint was authorized by Congress to filter out

frivolous filings made by a plaintiff who was not required to pay a filing fee and

thus “lacks an economic incentive to refrain from filing frivolous, malicious, and

repetitive lawsuits.” Neitzke v. Williams, 490 U.S. 319, 324 (1989); see Naranjo v.

Thompson, 809 F.3d 793, 799 (5th Cir. 2015) (holding that a “district court must

dismiss a case if it determines, at any time, that the plaintiff has only frivolous

claims for relief’).

To the extent Kirkland alleges that Ingalls violated his rights under the

Eighth and Fourteenth Amendments to the United States Constitution, the proper

vehicle for raising such claims is through an action under 42 U.S.C. § 1983, which

imposes liability upon any person who, acting under color of state law, deprives

Case 1:17-cv-00135-HSO-JCG Document 75 Filed 09/11/18 Page 14 of 15

another of federally protected rights. 42 U.S.C. § 1988. Section 1983 affords a

remedy to those who suffer, as a result of state action, deprivation of rights,

privileges, or immunities secured by the Constitution and the laws of the United

States. White v. Thomas, 660 F.2d 680, 683 (5th Cir. 1981). Kirkland has failed to

plausibly state a claim that, at the time of his employment, Ingalls was a state actor

or that it acted under color of law, as required by § 1983. His allegations of

constitutional violations are insufficient to state a claim and should be dismissed

with prejudice.

After a thorough review of the record before it, the Court finds that Kirkland

has failed to carry his burden of demonstrating that there exists a genuine dispute

of material fact for resolution at trial. Ingalls’ Motion for Summary Judgment

should be granted.

III. CONCLUSION

To the extent the Court has not addressed any of the parties’ arguments, it

has considered them and determined that they would not alter the result.

Defendant Huntington Ingalls Incorporated’s Motion [50] for Summary Judgment

will be granted and Plaintiff Johnny Kirkland’s claims will be dismissed.

Defendant’s Motion to Dismiss [48] will be denied as moot.

IT IS, THEREFORE, ORDERED AND ADJUDGED that Defendant

Huntington Ingalls Incorporated’s Motion for Summary Judgment [50] is

Case 1:17-cv-00135-HSO-JCG Document 75 Filed 09/11/18 Page 15 of 15

GRANTED, and that Defendant Huntington Ingalls Incorporated’s Motion to

Dismiss [48] is DENIED AS MOOT.

IT IS, FURTHER, ORDERED AND ADJUDGED that Plaintiff Johnny

Kirkland’s Longshore and Harbor Workers’ Compensation Act claims against

Defendant Huntington Ingalls Incorporated are DISMISSED, and any remaining

state law tort claims and the constitutional claims against Defendant are

DISMISSED WITH PREJUDICE.

IT IS, FURTHER, ORDERED AND ADJUDGED that this Civil Action is

DISMISSED. A separate judgment will be entered in accordance with this Order,

as required by Rule 58 of the Federal Rules of Civil Procedure.

SO ORDERED AND ADJUDGED this the 11 day of September, 2018.

of Halil Suleyman Ozerden

HALIL SULEYMAN OZERDEN

UNITED STATES DISTRICT JUDGE

Case 1:17-cv-00135-HSO-JCG Document 76 Filed 09/11/18 Page 1of1

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF MISSISSIPPI

SOUTHERN DIVISION

JOHNNY KIRKLAND PLAINTIFF

Vv. CIVIL NO. 1:17-cv135-HSO-JCG

HUNTINGTON INGALLS INCORPORATED DEFENDANT

FINAL JUDGMENT OF DISMISSAL

The Court, after a full review and consideration of the record in this case and

relevant legal authority, finds that in accord with its Memorandum Opinion and

Order entered herewith,

IT 1S, THEREFORE, ORDERED AND ADJUDGED, that this Civil

Action is DISMISSED.

SO ORDERED AND ADJUDGED this the 11 day of September, 2018.

o| Hall Suleyman Ozerdeu

HALIL SULEYMAN OZERDEN

UNITED STATES DISTRICT JUDGE

Case: 18-60710 Document: 00514926595 Page:1 Date Filed: 04/23/2019

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 18-60710

JOHNNY KIRKLAND,

Plaintiff - Appellant

HUNTINGTON INGALLS, INCORPORATED,

Defendant - Appellee

Appeal from the United States District Court

for the Southern District of Mississippi

ON PETITION FOR REHEARING

Before KING, SOUTHWICK, and ENGELHARDT, Circuit Judges.

PER CURIAM:

IT IS ORDERED that the petition for rehearing is denied.

ENTERED FOR THE COURT:

UNITED STATES CIRCUIT JUDGE

APPENDIX C

Case: 18-60710 Document: 00514937857 Page:1 Date Filed: 05/01/2019

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 18-60710 United States Court of Appeals

Summary Calendar FILED

March 18, 2019

JOHNNY KIRKLAND, Lyle or waves

Plaintiff - Appellant

HUNTINGTON INGALLS, INCORPORATED,

Defendant - Appellee

Appeal from the United States District Court

for the Southern District of Mississippi

USDC No. 1:17-CV-135

Before KING, SOUTHWICK, and ENGELHARDT, Circuit Judges.

PER CURIAM:*

Appellant Johnny Kirkland, proceeding pro se, filed suit seeking

recovery for various injuries related to his employment by appellee Huntington

Ingalls, Inc. (“Ingalls”), in the 1970s. The district court determined that

Kirkland’s claims were preempted by the Longshore and Harbor Workers’

Compensation Act (““LHWCA”), see 33 U.S.C. §§ 901-950, or otherwise barred

by the applicable statutes of limitations. The LHWCA “provides nonseaman

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not

be published and is not precedent except under the limited circumstances set forth in 5TH

Cir. R. 47.5.4.

Case: 18-60710 Document: 00514937857 Page:2 Date Filed: 05/01/2019

No. 18-60710

maritime workers ... with no-fault workers’ compensation claims (against

their employer, § 904(b)) and negligence claims (against the vessel, § 905(b))

for injury and death.” Norfolk Shipbuilding & Drydock Corp. v. Garris, 532

U.S. 811, 818 (2001). Relevant here, the LHWCA “expressly pre-empts all other

claims” the employee may have against his employer. Jd. (citing § 905(a)).