United States District Court, S.D. Texas, Houston Division
MEMORANDUM AND RECOMMENDATION
K. Johnson, United States Magistrate Judge.
before the court is Defendant's Motion to Dismiss
Pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6) (Doc. 3). For
the reasons stated below, it is RECOMMENDED
that the motion be GRANTED.
October 8, 2018, Plaintiff, proceeding pro se, filed suit
against her former supervisor, Zabransky, alleging that
Zabransky improperly accessed Plaintiff's medical
records. Zabransky, a federal employee of the
United States Department of Veterans Affairs, removed this
action from Justice Court, Precinct 5, Place 2, to this court
on November 2, 2018, pursuant to 28 U.S.C. §
before the court is Defendant's motion to dismiss.
Plaintiff has not responded to this motion.
12(b)(6) allows dismissal of an action whenever the
complaint, on its face, fails to state a claim upon which
relief can be granted. The court should construe the
allegations in the complaint favorably to the pleader and
accept as true all well-pleaded facts. Harold H. Huggins
Realty, Inc. v. FNC, Inc., 634 F.3d 787, 803 n.44
(5th Cir. 2011)(quoting True v. Robles,
571 F.3d 412, 417 (5th Cir. 2009)).
complaint need not contain “detailed factual
allegations” but must include sufficient facts to
indicate the plausibility of the claims asserted, raising the
“right to relief above the speculative level.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007); see also Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009). Plausibility means that the factual content
“allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.”
Iqbal, 556 U.S. 678. A plaintiff must provide
“more than labels and conclusions” or “a
formulaic recitation of the elements of a cause of
action.” Twombly, 550 U.S. at 555. In other
words, the factual allegations must allow for an inference of
“more than a sheer possibility that a defendant has
acted unlawfully.” Iqbal, 556 U.S. 678.
Zabransky's motion to dismiss, she argues that Plaintiff
failed to state a claim upon which relief can be granted
based on the lack of factual allegations in the petition.
Zabransky alternatively argues that if Plaintiff is suing
under Title VII of the Civil Rights Act of 1964, the Age
Discrimination in Employment Act, or the Rehabilitation Act,
she has sued the wrong party and also has failed to exhaust
her administrative remedies.
court agrees that Plaintiff has failed to state a claim for
relief. It is unclear from Plaintiff's complaint if
Plaintiff is making a Privacy Act claim, a wrongful
termination claim, or some other tort claim. The court will
not speculate about the statutory or common-law bases for
Plaintiff's claims; it is incumbent on Plaintiff to
affirmatively allege the statute, if any, that prohibited
Zabransky's access to Plaintiff's medical records.
therefore RECOMMENDED that Defendant's
Motion to Dismiss (Doc. 3) be GRANTED and
that Plaintiff be ORDERED to file an amended
complaint that states the statutory bases for her claims, the
facts supporting her claims, and whether she has exhausted
any administrative remedies available to her within twenty
(20) days from the date this Memorandum and Recommendation is
Clerk shall send copies of this Memorandum and Recommendation
to the respective parties who have fourteen days from the
receipt thereof to file written objections thereto pursuant
to Federal Rule of Civil Procedure 72(b) and General Order
2002-13. Failure to file written objections within the time
period mentioned ...