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Flonery v. United States

United States District Court, N.D. Ohio, Eastern Division

July 23, 2018

DERRICK FLONERY, Plaintiff,
v.
UNITED STATES OF AMERICA, et al., Defendants.

          MEMORANDUM OF OPINION AND [RESOLVING ECF NO. 16]

          Benita Y. Pearson United States District Judge

         Pending 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.

         I. Background

         Pro se Plaintiff Derrick Flonery, a federal prisoner formerly incarcerated at FCI Elkton[1], 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.

         In his 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.

         Despite 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. Id.

         Defendants 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.

         II. Standard of Review

          To 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.

         When 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 (2007)).

         III. Analysis

         As an 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.

         A. FTCA Claim

         Defendants assert that Plaintiff's FTCA claim should be dismissed because he failed to attach an affidavit of merit to his complaint, as required ...


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