United States District Court, N.D. Alabama, Southern Division
DAVID PROCTOR UNITED STATES DISTRICT JUDGE
case is before the court on Defendant Fowler's Motion to
Dismiss Plaintiff's Fourth Amended Complaint. (Doc. #
135). The parties have fully briefed the Motion. (Docs. #
135, 142, 144). For the reasons explained below, Defendant
Fowler's Motion to Dismiss (Doc. # 135) is due to be
filed this action in the Circuit Court of Montgomery County
on May 20, 2016. (Docs. # 1-1, 1-4, 1-5, 1-6, 1-7, 1-8, 1-9,
1-16, 1-17, 1-18, 1-19, 1-20, 1-21, 1-22). On July 7, 2016,
Defendants removed this case to the Middle District of
Alabama. (Doc. # 1-1). The case was transferred to the
Northern District of Alabama on August 29, 2016. (Doc. # 1).
Plaintiff filed an Amended Complaint on January 9, 2017.
(Doc. # 43).
the court appointed an attorney to represent Plaintiff
“for the limited purpose of drafting a second amended
complaint, ” Plaintiff filed the Second Amended
Complaint on June 19, 2017. (Docs. # 73, 74). The claims in
the Second Amended Complaint relate to (1) Plaintiff's
confinement in the Birmingham City Jail from November 2014
through February 2015 and (2) Plaintiff's treatment by
Defendant Callahan while at Grandview Medical Center in
January 2015. (Doc. # 74). On June 22, 2017, Defendants
(including Defendant Fowler) who were identified in the
Complaint and First Amended Complaint but were not included
in the Second Amended Complaint were dismissed from the
proceeding. (Doc. # 76). After the court gave Plaintiff leave
to amend the Second Amended Complaint (Doc. # 88), Plaintiff
filed a Third Amendment to Complaint, which added claims
against Defendant Fowler. (Doc. # 97). Defendant Fowler filed
a Motion to Dismiss Third Amended Complaint on August 25,
2017. (Doc. # 106).
October 17, 2017, the court severed Plaintiff's claims
against Defendant Callahan into a separate case, dismissed
Plaintiff's federal claims against Defendant Callahan,
and remanded Plaintiff's case against Defendant Callahan
to the Circuit Court of Montgomery County. (Doc. # 118). On
the same day, the court denied without prejudice Defendant
Fowler's Motion to Dismiss Third Amended Complaint (Doc.
# 106) because Plaintiff's Third Amendment to Complaint
(Doc. # 97) did not clearly state the facts which Defendant
Fowler relied upon in her motion. (Docs. # 117, 118). The
court granted Defendant Fowler's Motion for More Definite
Statement (Doc. # 123) on November 6, 2017. (Doc. # 124). On
November 15, 2017, Plaintiff filed his Fourth Amended
Complaint, which more clearly laid out his allegations
against Defendant Fowler. (Doc. # 127). Defendant Fowler has
now filed another motion to dismiss the Fourth Amended
Complaint (on December 1, 2017). (Doc. # 135).
Rule 12(b)(6) motion questions the legal sufficiency of a
complaint; therefore, in assessing the merit of a Rule
12(b)(6) motion, the court must assume that all the factual
allegations set forth in the complaint are true.”
Mays v. U.S. Postal Serv., 928 F.Supp. 1552, 1557-58
(M.D. Ala. 1996). Thus, for the purpose of resolving
Defendant Fowler's Motion to Dismiss (Doc. # 135), the
court treats the facts alleged in the Fourth Amended
Complaint (Doc. # 127) as true. The court also liberally
construes documents filed pro se, such as
Plaintiff's Fourth Amended Complaint (Doc. # 135).
Erickson v. Pardus, 551 U.S. 89, 94 (2007).
13, 2014, a Birmingham City Jail officer escorted Plaintiff
to Cooper Green Mercy Health Services (“Cooper
Green”) for a pain management treatment appointment
stemming from a pre-detention automobile accident. (Doc. #
127 at p. 2-3). Plaintiff alleges that he was a pre-trial
detainee at Birmingham City Jail at this time. (Id.
at p. 2). Upon arrival to Cooper Green, Plaintiff told
Defendant Fowler, a medical clerk at Cooper Green, that he
was experiencing excruciating pain; however, Defendant Fowler
allegedly denied Plaintiff access to Cooper Green's
services. (Id. at p. 3). Plaintiff claims this
denial of services exacerbated his condition. (Id.).
alleges his Fourteenth Amendment due process rights were
“violated as a result of Plaintiff not receiving any
opportunity to receive any form of needed medical
treatment” from Cooper Green and Defendant Fowler.
(Id. at p. 2). In the Fourth Amended Complaint's
jurisdictional statement, Plaintiff states that this action
is brought pursuant to 42 U.S.C. § 1983 for violations
of his constitutional rights. (Id. at p. 3).
However, the only count in Plaintiff's Fourth Amended
Complaint asserts a medical malpractice claim. (Id.
at p. 4-5). More specifically, Count One of Plaintiff's
Fourth Amended Complaint, Plaintiff alleges that
“Defendant Fowler had a legal and contractual duty to
allow Plaintiff access” to Cooper Green's services,
that “Defendant Fowler breached her duty to allow
Plaintiff access, ” that this “breach constituted
medical malpractice, wanton conduct that was the proximate
cause of Plaintiff's physical and psychiatric injuries
and damages, ” and that this “breach fell below
the standard of care for similarly situated medical
Standard of Review
Federal Rules of Civil Procedure require that a complaint
provide “a short and plain statement of the claim
showing that the pleader is entitled to relief.”
Fed.R.Civ.P. 8(a)(2). However, the complaint must include
enough facts “to raise a right to relief above the
speculative level.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007). Pleadings that
contain nothing more than “a formulaic recitation of
the elements of a cause of action” do not meet Rule 8
standards, nor do pleadings suffice that are based merely
upon “labels and conclusions” or “naked
assertion[s]” without supporting factual allegations.
Id. at 555, 557. In deciding a Rule 12(b)(6) motion
to dismiss, courts view the allegations in the complaint in
the light most favorable to the non-moving party. Watts
v. Fla. Int'l Univ., 495 F.3d 1289, 1295 (11th Cir.
2007). Additionally, courts must liberally construe documents
filed pro se. Erickson, 551 U.S. at 94.
survive a motion to dismiss, a complaint must “state a
claim to relief that is plausible on its face.”
Twombly, 550 U.S. at 570. “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.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Although “[t]he plausibility standard is not akin to a
‘probability requirement, '” the complaint
must demonstrate “more than a sheer possibility that a
defendant has acted unlawfully.” Id. A
plausible claim for relief requires “enough fact[s] to
raise a reasonable expectation that discovery will reveal
evidence” to support the claim. Twombly, 550
U.S. at 556.
considering a motion to dismiss, a court should “1)
eliminate any allegations in the complaint that are merely
legal conclusions; and 2) where there are well-pleaded
factual allegations, ‘assume their veracity and then
determine whether they plausibly give rise to an entitlement
to relief.'” Kivisto v. Miller, Canfield,
Paddock & Stone, PLC, 413 F. App'x. 136, 138
(11th Cir. 2011) (unpublished) (quoting Am. Dental Assn.
v. Cigna Corp., 605 F.3d 1283, 1290 (11th Cir. 2010)).
That task is context specific and, to survive the motion, the
allegations must permit the court based on its
“judicial experience and common sense . . . to infer
more than the mere possibility of misconduct.”