United States District Court, W.D. Texas, Austin Division
TERRENCE M. BROWN, Plaintiff,
UNITED STATES OF AMERICA, Defendant.
PITMAN UNITED STATES DISTRICT JUDGE
the Court are Plaintiff's complaint [#1], the
Government's Motion to Dismiss [#12], Plaintiff's
response [#13], the Government's reply [#14], and
Plaintiff's sur-reply [#15]. Plaintiff, proceeding pro
se, has been granted leave to proceed in forma pauperis.
is a Federal Torts Claim Act (“FTCA”) case in
which Plaintiff Terrence M. Brown, a federal prisoner
formerly incarcerated in FCI Bastrop, alleges the medical
care he received for his seizure condition was inadequate.
Brown seeks $2, 000, 000.00 in damages.
in his complaint are allegations regarding a bat bite, verbal
confrontations he had with prison staff, retaliatory acts
regarding his walker, and a deceptive cancer diagnosis.
Plaintiff makes clear in his response to the Government's
motion to dismiss that he is only pursuing his claims related
to the medical care regarding his seizure condition.
Plaintiff explains he included the allegations regarding the
bat bite to provide contextual facts and he included the
retaliation claims as evidence of negligence.
Government moves to dismiss Plaintiff's medical claims as
time-barred. The Government contends Plaintiff's claims
arising from medical treatment he received for his seizures
accrued in 2015. The Government points out that Plaintiff did
not file his administrative claim until January 2018, more
than two years after the date of injury. The Government
understands the only injuries alleged by Plaintiff were the
two concussions he allegedly sustained when he fell while
having seizures in 2015.
the Government moves to dismiss Plaintiff's claims for
failure to state a claim upon which relief can be granted.
The Government argues Plaintiff fails to allege he
experienced harm or injury proximately caused by
Defendant's acts or omissions. The Government asserts the
only injuries alleged are the two concussions he sustained in
2015 and Plaintiff does not allege Defendants should have or
could have done anything to prevent him from sustaining those
counters that his complaint is not time-barred due to the
continuing tort doctrine. Plaintiff contends the deliberate
indifference of Dr. Rodriguez continued until September 15,
2017, the day Dr. Rodriguez left the facility even though
Plaintiff admits to receiving medical treatment by other
providers in 2016 and being transferred to a medical facility
in 2017. Plaintiff asserts he recently has had a number of
additional EEG tests and has finally been diagnosed with
epilepsy and is now receiving appropriate medication.
Standard Under Rule 12(b)(6)
Rule of Civil Procedure 8(a)(2) requires a complaint to
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). To survive a motion to
dismiss, 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 Atl. 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, 566 U.S. at 678. Although a plaintiff's
factual allegations need not establish that the defendant is
probably liable, they must establish more than a “sheer
possibility” a defendant has acted unlawfully.
Id. Determining plausibility is a
“context-specific task, ” and must be performed
in light of a court's “judicial experience and
common sense.” Id. at 679.
deciding a motion to dismiss under Rule 12(b)(6), a court
generally accepts as true all factual allegations contained
within the complaint. Leatherman v. Tarrant 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).
In deciding a motion to dismiss, courts “must
consider” the complaint, as well as other sources such
as documents incorporated into the complaint by reference and
matters of which a court may take judicial notice.
Tellabs, Inc. v. Makor Issues & Rights, Ltd.,
551 U.S. 308, 322 (2007).