United States District Court, N.D. Texas, Fort Worth Division
MEMORANDUM OPINION AND ORDER
MCBRYDE, UNITED STATES DISTRICT JUDGE
for consideration the motion of defendant Tarrant County
Hospital District d/b/a JPS Health Network (``JPS") to
dismiss. Plaintiff, Kimberly Dawn Fontenot, has failed to
respond to the motion, which is ripe for ruling. The court,
having considered the motion, the record, and applicable
authorities, finds that the motion should be granted.
August 15, 2018, plaintiff filed her complaint in this action
against a number of defendants. Doc. 1. Plaintiff generally
alleges that defendants breached their duty of care to
plaintiff and were wilfully indifferent to her serious
medical needs. Id., at 1. The "Statement of
Claim" portion of the complaint is not much more
specific. Id. at PagelD 8-9. Giving plaintiff the
benefit of the doubt, she alleges that on or about November
20, 2014, she was taken to the emergency room, presumably
operated by JPS, where she underwent surgery. Plaintiff
discovered on July 19, 2018, that the surgeon, Inzune Hwang
("Hwang"), left a foreign body, possibly a straight
pin, in the left aspect of plaintiff's bony pelvis.
Id. at PagelD 8, 11. Plaintiff seeks to recover
damages for her injuries.
of the Motion
argues that plaintiff has failed to state a cognizable claim
against it, either for violation of her constitutional rights
or under state law. It further argues that, if plaintiff has
alleged a state law claim, the court should decline to
exercise jurisdiction over it inasmuch as she has not stated
a federal constitutional claim against it.
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
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 plausible claim for relief . . .
[is] a context-specific task that requires the reviewing
court to draw on its judicial experience and common
Fifth Circuit has explained: "Where the complaint is
devoid of facts that would put the defendant on notice as to
what conduct supports the claims, the complaint fails to
satisfy the requirement of notice pleading."
Anderson v. U.S. Dep't of Housing & Urban
Dev., 554 F.3d 525, 528 (5th Cir. 2008). In sum, "a
complaint must do more than name laws that may have been
violated by the defendant; it must also allege facts
regarding what conduct violated those laws. In other words, a
complaint must put the defendant on notice as to what conduct
is being called for defense in a court of law."
Id. at 528-29. Further, the complaint must specify
the acts of the defendants individually, not collectively, to
meet the pleading standards of ...