United States District Court, W.D. Louisiana, Lake Charles Division
MEMORANDUM RULING AND ORDER
JAMES T. TRIMBLE, Jr., District Judge.
Before the court is a "Motion to Dismiss Claims Pursuant to Florida Law" (R. #24) wherein defendant, the United States of America, moves to dismiss any and all claims of Plaintiff's Complaint made pursuant to Florida law.
In his complaint, plaintiff brings this action individually and for the benefit of his mother, Cassandra Womack's other children, Michael Womack, Neikisha Womack, Gabrielle Perry and Jarvis Womack. Plaintiff seeks money damages pursuant to the Federal Tort Claims Act for the wrongful death of his mother caused by the alleged negligent and wrongful acts and omissions of employees of the United States Government.
In October 2003, Cassandra Womack reported for incarceration by the Federal Bureau of Prisons to the Federal Correctional Institution ("FCI") in Tallahassee, Florida. An initial medical screening at FCI in Tallahassee showed iron deficiency anemia; she was placed on iron supplements. Despite taking the iron supplements, Ms. Womack continued to be diagnosed with iron deficiency anemia in February 2004. About this time, Ms. Womack started to complain of abdominal pain. No additional testing was performed to diagnose colon cancer as a cause of the iron deficiency anemia and/or abdominal pain.
On or about June 1, 2006, Ms. Womack was transferred to the Federal Medical Center ("FMC") Carswell in Fort Worth, Texas. She was seen by doctors in September 2006 at which time she continued to suffer abdominal pains and iron deficiency anemia. Plaintiff complains that despite these symptoms, no testing was performed to detect colon cancer.
In December 2006, a pelvic sonogram was performed; the findings were negative. In August 2007, Ms. Womack collapsed with severe abdominal pain. A physical exam revealed a large palpable mass in her abdomen and a subsequent exploratory laparoscopy resulted in a diagnosis of Stage IV adenocarcinoma of the ascending colon metastatic to the left and right ovaries and the fallopian tube.
Ms. Womack passed away on February 27, 2009. At the time of her death, Ms. Womack resided in Louisiana. Plaintiff as well as Ms. Womack's other children also reside in Louisiana. Plaintiff does not allege that any negligent acts or omissions occurred in Louisiana. Plaintiff alleges that the failure of government medical providers to provide additional testing at FCI in Florida to detect the cancer and to diagnose and treat Ms. Womack's condition at FMC Carswell was negligent and fell below the applicable standard of care which caused her death.
RULE 12(b)(6) STANDARD
Federal Rule of Civil Procedure 12(b)(6) allows dismissal of a complaint when it fails to state a claim upon which relief can be granted. The test for determining the sufficiency of a complaint under Rule 12(b)(6) is that "a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Subsumed within the rigorous standard of the Conley test is the requirement that the plaintiff's complaint be stated with enough clarity to enable a court or an opposing party to determine whether a claim is sufficiently alleged. The plaintiff's complaint is to be construed in a light most favorable to plaintiff, and the allegations contained therein are to be taken as true. In other words, a motion to dismiss an action for failure to state a claim "admits the facts alleged in the complaint, but challenges plaintiff's rights to relief based upon those facts. "In order to avoid dismissal for failure to state a claim, a plaintiff must plead specific facts, not mere conclusory allegations...." "Legal conclusions masquerading as factual conclusions will not suffice to prevent a motion to dismiss." "[T]he complaint must contain either direct allegations on every material point necessary to sustain a recovery... or contain allegations from which an inference fairly may be drawn that evidence on these material points will be introduced at trial."
Under Rule 8 of the Federal Rules of civil Procedure, the pleading standard does not require a complaint to contain "detailed factual allegations, " but it demands "more than an unadorned, the defendant-unlawfully-harmed-me accusation." A complaint that offers "labels and conclusions:" or "a formulaic recitation of the elements of a cause of action will not do." Nor does a complaint suffice if it tenders "naked assertion[s]" devoid of "further factual enhancement."
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."
LAW AND ANALYSIS
The United States, as sovereign is immune from suit; the terms of its consent to be sued in any court define that court's jurisdiction to entertain the suit. The United States has waived sovereign immunity for claims asserted under the FTCA, 28 U.S.C. § 2674; under the FTCA, the United States is liable for personal injury caused by the negligent or wrongful acts of its employees to the same extent ...