NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS DEC 11 2017

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

NEIL HORNSBY, Husband; MARICOR No. 15-35686 POAGE HORNSBY, Wife, D.C. No. 2:14-cv-00394-SAB Plaintiffs-Appellants,

v. MEMORANDUM*

ALCOA, INC.,

Defendant-Appellee.

Appeal from the United States District Court for the Eastern District of Washington Stanley Allen Bastian, District Judge, Presiding

Submitted December 7, 2017** Seattle, Washington

Before: O’SCANNLAIN, TALLMAN, and WATFORD, Circuit Judges.

Plaintiff Neil Hornsby appeals the district court’s dismissal with prejudice of

his First Amended Complaint. We have jurisdiction under 28 U.S.C. § 1291, and

we review “a district court’s determination of whether a plaintiff’s complaint

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). complied with the notice pleading requirements” de novo. Lehman v. Nelson, 862

F.3d 1203, 1211 (9th Cir. 2017) (quoting Pickern v. Pier 1 Imp. (U.S.), Inc., 457

F.3d 963, 968 (9th Cir. 2006)).

From 2000 to 2002, and again from 2003 to 2008, Neil Hornsby worked at

Alcoa Wenatchee Works in various capacities in the pot rooms. In 2015, Hornsby

was diagnosed with congestive heart failure, Stage II. He then sued Alcoa under

Washington’s Industrial Insurance Act, RCW 51.24.020, alleging that Alcoa

deliberately injured him, and Alcoa removed the case to the district court. The

district court subsequently dismissed Hornsby’s First Amended Complaint under

Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. We affirm

that dismissal.

Under Title 51 RCW, the Washington state legislature has created “a no-

fault system for efficiently compensating workers injured on the job. As part of

that system, employers receive immunity from civil suits resulting from on-the-job

injuries.” Walston v. Boeing Co., 181 Wash. 2d 391, 393 (2014). Employers who

deliberately injure their employees, however, are not immune from suit. Id. The

Washington Supreme Court has further clarified that the narrow exception to the

statute is reserved for claims where “the employer had actual knowledge that an

injury was certain to occur and willfully disregarded that knowledge.” Id. at 396

(quoting Birklid v. Boeing Co., 127 Wash. 2d 853, 865 (1995)). Therefore,

2 Hornsby must plead that (1) Alcoa had actual knowledge that Hornsby’s injuries

were certain to occur, and (2) Alcoa willfully disregarded that knowledge.

“[W]e begin by taking note of the elements a plaintiff must plead to state a

claim . . . .” Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009). Under Federal Rule of

Civil Procedure 8(a), “only a complaint that states a plausible claim for relief

survives a motion to dismiss.” Id. at 679 (citing Bell Atl. Corp. v. Twombly, 550

U.S. 544, 556 (2007)). “A claim has facial plausibility when the plaintiff pleads

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

defendant is liable for the misconduct alleged.” Id. at 678. “Where a complaint

pleads facts that are merely consistent with a defendant’s liability, it stops short of

the line between possibility and plausibility of entitlement to relief.” Somers v.

Apple, Inc., 729 F.3d 953, 959–60 (9th Cir. 2013) (quoting Iqbal, 556 U.S. at 678).

This “demands more than an unadorned, the-defendant-unlawfully-harmed-me

accusation.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555).

The plausibility standard is not met here. In his First Amended Complaint,

Hornsby makes conclusory allegations that “Alcoa deliberately injured Plaintiff

Neil Hornsby because it had actual knowledge that an injury or disease was certain

to occur and willfully disregarded that knowledge.” In support of these

contentions, Hornsby points to Alcoa’s knowledge that (1) he had “collapsed from

heat stress in August 2005,” (2) “Hornsby’s [2007] individual pulmonary function

3 results showed ‘mild restrictive’ with ‘no restrictions,’” and (3) a 2008 pulmonary

test “showing a further decline in his pulmonary function.”

Furthermore, Hornsby alleges that Alcoa had the requisite “actual

knowledge” that injury was certain to occur if Hornsby returned to work because it

was aware of various medical studies and testimony that showed it was

“biologically plausible for aluminum particles to cause pulmonary fibrosis,” and

“exposure to aluminum powder is thought to be directly correlated with the

development of pulmonary fibrosis in aluminum industry workers.”

Even if true, that is insufficient to state a plausible claim for relief.

Although Alcoa might have guessed that exposure to aluminum particles could be

harming Hornsby, it did not have “actual knowledge” that his 2005 collapse or

subsequent decline in pulmonary function was caused by his work alone.

Additionally, the studies and testimony cited by Hornsby undermine his own

claim, as they merely show that a connection between aluminum particles and

pulmonary fibrosis is “plausible” or “thought to be directly correlated.” Therefore,

Alcoa cannot be said to have actually known that Hornsby’s work in its factory

was the direct cause of his ailments or that if he returned to work “an injury was

certain to occur.” Walston, 181 Wash. 2d at 396.

Last, by Hornsby’s own account, he was unaware of his condition until

November 5, 2014―over six years after Hornsby left Alcoa. We find it difficult to

4 reconcile the allegation that Alcoa had actual knowledge of impending or current

harm, with the fact that Hornsby himself did not know he was injured until years

later. That is not plausible. Accordingly, we affirm the district court’s dismissal of

Hornsby’s First Amended Complaint.

Costs awarded to Appellee Alcoa, Inc.

AFFIRMED.

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