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Blank v. United States

United States District Court, N.D. Texas, Fort Worth Division

November 17, 2017

TRAVIS BLANK, Plaintiff,
v.
UNITED STATES OF AMERICA, ET AL. Defendants.

          MEMORANDUM OPINION AND ORDER

          JOHN MCBRYDE, UNITED STATES DISTRICT JUDGE.

         Came on for consideration the motion of defendants Lawanda Shead ("Shead"), Aminia Baruti ("Baruti"), James Riley ("Riley"), Ronald White ("White"), Chris Zagotti ("Zagotti"), and Rodney Chandler ("Chandler")(collectively "movants") to dismiss. The court, having considered the motion, the response of plaintiff, Travis Blank, the reply, the record, and applicable authorities, finds that the motion should be granted in part.

         I.

         Plaintiff's Claims

         Plaintiff, a prisoner at FMC-Fort Worth, complains of treatment he received while incarcerated there, Plaintiff asserts claims against United States of America under the Federal Tort Claims Act and claims against movants under Bivins v. Six Unknown Named Agents, 403 U.S. 388 (1971). Plaintiff complains of medical treatment provided by Shead and Baruti and sues the other movants for failing to address a pigeon infestation at the facility, all of which he alleges caused him grievous harm. Doc.[1] 3.

         Briefly, plaintiff alleges that he has Crohn's disease and takes medication that weakens/compromises his immune system. He says that he is designated as a "Care Level 3 inmate." Doc. 3 at 11, ¶ 21, Plaintiff developed a rash common to hundreds of inmates at the facility. His doctor, Baruti, was deliberately indifferent to plaintiff's medical needs. Shead, a nurse, knowingly caused him to undergo treatments that were ineffective and caused plaintiff extreme pain. Riley, White, Zagotti and Chandler were aware of and consciously disregarded a pigeon infestation at the facility that caused inmates, including plaintiff, to be exposed to dangerous conditions. Plaintiff developed histoplasmosis as a result of the exposure and continues to suffer as a result.

         II.

         Grounds of the Motion

         Movants allege that plaintiff has failed to state plausible claims against them. They alternatively argue that they are entitled to qualified immunity.

         III.

         Applicable Legal Principles

         A. Pleading Standards

         Rule 8(a)(2) of the Federal Rules of Civil Procedure provides, in a general way, the applicable standard of pleading. It requires that 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), "in order to give the defendant fair notice of what the claim is and the grounds upon which it rests, " Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal quotation marks and ellipsis omitted). Although a complaint need not contain detailed factual allegations, the "showing" contemplated by Rule 8 requires the plaintiff to do more than simply allege legal conclusions or recite the elements of a cause of action. Twombly, 550 U.S. at 555 & n.3. Thus, while a court must accept all of the factual allegations in the complaint as true, it need not credit bare legal conclusions that are unsupported by any factual underpinnings. See Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) ("While legal conclusions- can provide the framework of a complaint, they must be supported by factual allegations.").

         Moreover, to survive a motion to dismiss for failure to state a claim, the facts pleaded must allow the court to infer that the plaintiff's right to relief is plausible. Iqbal, 556 U.S. at 678. To allege a plausible right to relief, the facts pleaded must suggest liability; allegations that are merely consistent with unlawful conduct are insufficient. Id. In other words, where the facts pleaded do no more than permit the court to infer the possibility of misconduct, the complaint has not shown that the pleader is entitled to relief. Id. at 679. "Determining whether a complaint states a ...


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