United States District Court, W.D. Texas, San Antonio Division
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE
RICHARD B. FARRER, UNITED STATES MAGISTRATE JUDGE
the Honorable United States District Judge Fred
Report and Recommendation concerns the Rule 12(b)(1) Motions
to Dismiss filed by Defendants National Neuromonitoring
Services, LLC, Neurodiagnostics and Neuromonitoring
Institute, Inc., South Texas Neuromonitoring, Maribel Gomez,
and William VanNess (collectively, “Neuromonitoring
Defendants”). See Dkt. Nos. 73 & 75. All
dispositive pretrial matters in this § 1983 case have
been referred to the undersigned for disposition by report
and recommendation pursuant to Western District of Texas
Local Rule CV-72 and Appendix C. See Dkt. No. 82.
Because there is supplemental federal court jurisdiction over
Plaintiffs' state-law claims against the Neuromonitoring
Defendants, the undersigned recommends that the Rule 12(b)(1)
Motions to Dismiss, Dkt. Nos. 73 & 75, be
Factual and Procedural Background
Plaintiff Rogelio Carlos, III is paralyzed. He attributes his
paraplegia to complications from neck injuries sustained when
members of the San Antonio Police Department, it is alleged,
beat him during the course of his May 20, 2014 arrest. Dkt.
No. 60 (3d Am. Compl.). Mr. Carlos's paraplegia, however,
did not arise until over a year and a half after the alleged
beating, and not until after he underwent surgery to address
the neck injuries alleged to have resulted from the
Third Amended Complaint describes how, at first, Mr.
Carlos's post-arrest injuries manifested as numbness in
his hands and generalized tenderness throughout his neck. 3d
Am. Compl. ¶ 80. It also explains that medical providers
first treated his neck with steroid injections. Id.
But his symptoms persisted and worsened, and he consulted an
orthopedic surgeon who diagnosed him with cervical disc
herniations at multiple levels pressing on his spinal cord.
The surgeon recommended cervical surgery. Id.
¶¶ 80-81. Mr. Carlos received the recommended
surgery on November 3, 2015, almost a year and a half after
the alleged assault. It was only after this surgery that Mr.
Carlos became paralyzed.
National Neuromonitoring Services, LLC, Neurodiagnostics and
Neuromonitoring Institute, Inc., and South Texas
Neuromonitoring are alleged to have supplied the
neuromonitoring services for Mr. Carlos's surgery.
Id. ¶ 85. Maribel Gomez is alleged to have
served as the technician, and Dr. William VanNess as the
neurologist. Id. Mr. Carlos and his co-plaintiff
wife, Myrna, allege that the Neuromonitoring Defendants
failed to timely assess, monitor, and identify significant
changes to his neurological activity, and that they also
failed to timely communicate those changes to the surgeon,
Dr. Bruggeman. Id. ¶¶84-91. According to
the Carloses, these acts and omissions, along with the
actions or omissions of the officers and city, are the direct
and proximate cause of Mr. Carlos's paraplegia.
Id. ¶ 92.
March of 2016, the Carloses filed their original complaint
asserting § 1983 excessive-force and wrongful-arrest
claims against the City of San Antonio and San Antonio police
officers Virgilio Gonzalez, Carlos Chavez, James Ybarra, Mark
Delgado, and Detective John Doe, in their individual
capacities (the officers and the City are collectively
referred to herein as the “City Defendants”).
See Dkt. No. 1. Then, more than a year later, the
Carloses sought leave to join the Neuromonitoring Defendants.
See Dkt. No. 58. According to their motion to amend,
records produced in May 2017 allegedly revealed that Mr.
Carlos's paralysis was not merely a known and unfortunate
complication of his cervical surgery, as the Carloses
originally believed, but instead was at least partially
caused by the alleged negligence of the Neuromonitoring
August 10, 2017, the District Court granted the Carloses
leave to join the Neuromonitoring Defendants. See
Dkt. No. 59. Shortly thereafter, the Neuromonitoring
Defendants filed the two Rule 12(b)(1) Motions to Dismiss
presently at issue, asserting in each that a lack of
subject-matter jurisdiction with respect to the Carloses'
state-law claims against them requires dismissal of those
claims. See Dkt. Nos. 73 & 75.
the Neuromonitoring Defendants now parties to the litigation,
the City Defendants soon moved for leave to file cross-claims
seeking contribution against them. See Dkt. Nos. 84
& 97. The City Defendants also sought leave to designate
the Neuromonitoring Defendants and Dr. Adam Bruggeman as
Responsible Third Parties pursuant to § 33.004 of the
Texas Civil Practice and Remedies Code. See Dkt.
Nos. 85 & 96.
Rule 12(b)(1) motions at issue challenge the subject-matter
jurisdiction of the district court to entertain the
Carloses' state-law negligence claims against the
Neuromonitoring Defendants. Given that federal subject-matter
jurisdiction in the case is based on the Carloses'
federal § 1983 claims against the City Defendants,
see 28 U.S.C. § 1331, and diversity of
citizenship does not supply federal jurisdiction over the
case, see 28 U.S.C. § 1332, there must be a
basis for federal subject-matter jurisdiction over the
state-law claims if they are to proceed in federal court. The
doctrine of supplemental jurisdiction is therefore
heart of the Rule 12(b)(1) motions' arguments opposing
the Court's exercise of supplemental jurisdiction lies
the difference in time and factual circumstances between
events giving rise to the state-law and federal claims. The
state-law negligence claims against the Neuromonitoring
Defendants stem from an event-Mr. Carlos's surgery-that
occurred over a year and a half after the alleged beating by
police precipitating the § 1983 claims against the City
Defendants. But as discussed below, Mr. Carlos's injuries
are sufficiently at the core of both the state-law negligence
and federal civil-rights claims to permit the exercise of
supplemental jurisdiction over the negligence claims.
Moreover, no factors counseling judicial discretion to
decline supplemental jurisdiction are present at this time.
Accordingly, the undersigned recommends that the two motions
to dismiss be denied.
Jurisdiction Over the ...