SAM SPARKS, District Judge.
BE IT REMEMBERED on this day the Court reviewed the file in the above-styled cause, and specifically Defendant Nicole Pitts's Motion to Dismiss [#32], and Defendant Nicole Pitts's Amended Motion to Dismiss [#33]; and Plaintiff Nathan Glanville's Unopposed Motion for Leave to File Second Amended Complaint [#35]. Having reviewed the documents, the governing law, and the file as a whole, the Court now enters the following opinion and orders.
This suit arises from claims by Plaintiff Nathan Glanville against individual medical providers and correctional officers who allegedly ignored Glanville's symptoms of an aneurysm he suffered in July 2011 while he was housed at the Bartlett State Jail. Consequently, Glanville asserts, he suffered significant brain damage leaving him permanently disabled and unable to work.
In his Original Complaint, Glanville brought a number of claims against various parties. First, he brought federal causes of action under 42 U.S.C. § 1983 against the individual defendants for deliberate indifference to his medical needs. Also, Glanville sued the Corrections Corporation of America (CCA) under § 1983 because the prison guards were employees of CCA. Second, Glanville brought state law medical malpractice and negligence claims against all of the individual defendants. Glanville asserted these same claims against CCA under a theory of respondeat superior.
The individual defendants moved to dismiss the case against them under Section 101.106(f) of the Texas Civil Practices and Remedies Code (the Texas Tort Claims Act), which provides:
if a suit is filed against an employee of a governmental unit based on conduct within the general scope of that employee's employment and if it could have been brought under this chapter against the governmental unit, the suit is considered to be against the employee in the employee's official capacity only. On the employee's motion, the suit against the employee shall be dismissed unless the plaintiff files amended pleadings dismissing the employee and naming the governmental unit as defendant on or before the 30th day after the date the motion is filed.
TEX. Civ. PRAC. & REM. CODE § 101.106(f). The individuals were employees of the University of Texas Medical Branch (UTMB)a state agency. Following Section 101.106(f)'s instructions, Glanville filed an amended complaint asserting the medical malpractice claims against UTMB. Glanville also contended Section 101.106 and the election of remedies requirement violates the Open Court Provision of the Texas Constitution.
In response to the amended complaint, UTMB filed a motion to dismiss under Federal Rule of Civil Procedure 12(b)(1) and invoked Eleventh Amendment sovereign immunity. The Court granted the motion and dismissed UTMB as a defendant. See Order of Dec. 2, 2013 [#34].
On November 26, 2013, Defendant Nicole Pitts filed a Motion to Dismiss [#32], and then an Amended Motion to Dismiss a day later [#33]. To date, Glanville has not filed a Response, but he has filed an Unopposed Motion for Leave to File Second Amended Complaint, which the Court GRANTS. As far as it relates to the instant motion to dismiss, the Second Amended Complaint adds one paragraph with more facts concerning the behavior of Pitts. See Unopposed Motion for Leave to File Second Amended Complaint [#35-1], Ex. A (Second Amended Complaint), at ¶ 38. The Court has considered the Second Amended Complaint as the "live" complaint for the purposes of Pitts's Amended Motion to Dismiss, and notes the Court's decision would have been the same under both the First and Second Amended Complaints.
I. Rule 12(b)(6)-Legal Standard
Federal Rule of Civil Procedure 8(a)(2) requires a complaint contain "a short and plain statement of the claim showing that the pleader is entitled to relief" FED. R. Civ. P. 8(a)(2). A motion under Federal Rule of Civil Procedure 12(b)(6) asks a court to dismiss a complaint for "failure to state a claim upon which relief can be granted." FED. R. Civ. P. 12(b)(6). In deciding a motion to dismiss under 12(b)(6), a court generally accepts as true all factual allegations contained within the complaint. Leatherman v. Tarrant Cnty. Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 164 (1993). However, a court is not bound to accept legal conclusions couched as factual allegations. Papasan v. Allain , 478 U.S. 265, 286 (1986). Although all reasonable inferences will be resolved in favor of the plaintiff, the plaintiff must plead "specific facts, not mere conclusory allegations." Tuchman v. DSC Commc'ns Corp., 14 F.3d 1061, 1067 (5th Cir. 1994). The plaintiff must plead sufficient facts to state a claim for relief that is facially plausible. Ashcroft v. Iqbal, 556 U.s. 662, 678 (2009); Bell Ati. Corp. v. Twombly, 550 U.S. 544, 570 (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." Iqbal, 556 U.S. at 678. Although a plaintiff's factual allegations need not establish the defendant is probably liable, they must establish more than a "sheer possibility" that a defendant has acted unlawfully. Id. Determining plausibility is a "context-specific task, " that must be performed in light of a ...