United States District Court, N.D. Ohio, Eastern Division
MEMORANDUM OF OPINION AND [RESOLVING ECF NO.
Y. Pearson United States District Judge
is Defendants' Motion to Dismiss Plaintiff's
Complaint pursuant to Fed. R. Civ. P. 12(b)(6).
ECF No. 16. The motion is unopposed. For the reasons
stated below, the motion is granted.
se Plaintiff Derrick Flonery, a federal prisoner
formerly incarcerated at FCI Elkton, filed this in forma
pauperis action against Defendants United States of
America, the Director of the Northeast Region of the Federal
Bureau of Prisons, and the Warden of the Federal Correctional
Institution in Milan (collectively,
“Defendants”), asserting a medical malpractice
claim under the Federal Tort Claims Act (“FTCA”),
28 U.S.C. § 2674 et seq., and an Eighth Amendment claim
for deliberate indifference to serious medical needs. ECF
No. 1 at PageID#: 2.
Complaint, Plaintiff alleges that while he was incarcerated
at FCI Elkton, he suffered from a small skin irritation that
grew into a large rash. Id. Plaintiff asserts that
when he initially sought medical care, a physician assistant,
who is not a party to this suit, performed a medical
assessment, and concluded that “the skin rash was
Dermtophystosis of the body; a rash and other nonspecific
skin eruption.” Id. The physician assistant
prescribed Plaintiff medications for a period of months,
however, Plaintiff alleges that his symptoms worsened.
Id. Accordingly, Plaintiff continued to seek medical
care for his condition, and based on subsequent medical
assessments conducted by another physician assistant and
several nurses, who are also not parties to this suit, the
assessments revealed that Plaintiff's skin condition was
diagnosed as “Psorasis, ” and that there were
“no significant findings/no apparent distress.”
Id. at PageID#: 2 3.
these determinations, Plaintiff brought suit against
Defendants alleging that Defendants' treatment of
Plaintiff's conditions was “woefully
inadequate” and amounted to “reckless disregard
to the serious nature of Plaintiff's medical
needs.” Id. at PageID#: 5. Plaintiff seeks
compensatory damages in the amount of three million dollars.
move to dismiss Plaintiff's Complaint, pursuant to
Fed. R. Civ. P. 12(b)(6), for failure to state a
claim. ECF No. 16. The motion is unopposed.
Standard of Review
survive a Fed. R. Civ. P.12(b)(6) motion to dismiss,
the plaintiff's complaint must allege enough facts to
“raise a right to relief above the speculative
level.” Ass'n of Cleveland Fire Fighters v.
City of Cleveland, Ohio, 502 F.3d 545, 548 (6th Cir.
2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007)). Fed. R. Civ. P. 8(a)(2) requires
only that a pleading contain “a short and plain
statement of the claim showing that the pleader is entitled
to relief.” However, “a plaintiff's
obligation to provide the ‘grounds' of his
‘entitle[ment] to relief' requires more than labels
and conclusions, and a formulaic recitation of the elements
of a cause of action will not do.” Twombly,
550 U.S. at 555 (citing Papasan v. Allain, 478 U.S.
265, 286 (1986)). A complaint requires “further factual
enhancement, ” which “state[s] a claim to relief
that is plausible on its face.” Id. at 557,
570. A claim has facial plausibility when there is enough
factual content present to allow “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). When a claim lacks “plausibility
in th[e] complaint, ” that cause of action fails to
state a claim upon which relief can be granted. Twombly,
U.S. 550 at 564.
ruling on a Rule 12(b)(6) motion to dismiss, a court
may consider “documents incorporated into the complaint
by reference, and matters of which a court may take judicial
notice.” Solo v. United Parcel Serv. Co., 819
F.3d 788, 794 (6th Cir. 2016) (quoting Tellabs, Inc. v.
Makor Issues & Rights, Ltd., 551 U.S. 308, 322
initial matter, Plaintiff has not responded to
Defendants' motion. The Sixth Circuit has held that it is
an abuse of discretion for a district court to dismiss under
Fed. R. Civ. P. 12(b)(6) solely because the
plaintiff failed to respond to a motion to dismiss unless the
failure rises to the level of a failure to prosecute.
Carver v. Bunch, 946 F.2d 451, 45355 (6th Cir.
1991). While Plaintiff's failure to respond could be
considered a failure to prosecute, the Court declines to
grant Defendants' motion on this ground. Rather, the
Court has reviewed Defendants' motion, and for the
reasons stated below, finds it to be well-taken.
assert that Plaintiff's FTCA claim should be dismissed
because he failed to attach an affidavit of merit to his
complaint, as required ...