United States District Court, S.D. Indiana, Indianapolis Division
NICK C. BIGSBY, Plaintiff,
DAVOL INC., Defendant.
ENTRY ON DEFENDANT'S MOTION TO DISMISS AND
PLAINTIFF'S MOTION FOR LEAVE TO FILE BELATED AMENDED
WALTON PRATT, JUDGE
matter is before the Court on a Motion to Dismiss filed
pursuant to Federal Rule of Civil Procedure 12(b)(6) by
Defendant Davol Inc. (“Davol”) (Filing No.
20), and a Motion for Leave to File a Belated Motion to
Amend Complaint by pro se Plaintiff Nick C. Bigsby
(“Bigsby”) (Filing No. 29). Bigsby is an
inmate at the Pendleton Correctional Facility in Pendleton,
Indiana (“Pendleton”). While in custody at
Pendleton, Bigsby suffered from a hernia, and after
undergoing three separate surgeries in 2013, 2014, and 2015,
he continues to suffer pain because of his hernia. He
initiated this lawsuit against Davol, asserting that
Davol's “hernia patch kits” are defective.
Davol moved to dismiss Bigsby's Complaint on the basis
that it fails to allege a sufficient factual basis to support
any legal claims for relief. After Davol filed its Motion to
Dismiss, Bigsby filed his Motion for Leave to File a Belated
Motion to Amend Complaint, seeking to add numerous defendants
to this litigation. For the following reasons, the Court
GRANTS Davol's Motion to Dismiss and
DENIES Bigsby's Motion for Leave to File
a Belated Motion to Amend Complaint.
Rule of Civil Procedure 12(b)(6) allows a defendant to move
to dismiss a complaint that has failed to “state a
claim upon which relief can be granted.” Fed.R.Civ.P.
12(b)(6). When deciding a motion to dismiss under Rule
12(b)(6), the court accepts as true all factual allegations
in the complaint and draws all inferences in favor of the
plaintiff. Bielanski v. County of Kane, 550 F.3d
632, 633 (7th Cir. 2008). However, courts “are not
obliged to accept as true legal conclusions or unsupported
conclusions of fact.” Hickey v. O'Bannon,
287 F.3d 656, 658 (7th Cir. 2002).
complaint must 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 Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 555 (2007), the Supreme
Court explained that the complaint must allege facts that are
“enough to raise a right to relief above the
speculative level”. Twombly, 550 U.S. at 555.
Although “detailed factual allegations” are not
required, mere “labels, ” “conclusions,
” or “formulaic recitation[s] of the elements of
a cause of action” are insufficient. Id.;
see also Bissessur v. Ind. Univ. Bd. of Trs., 581
F.3d 599, 603 (7th Cir. 2009) (“it is not enough to
give a threadbare recitation of the elements of a claim
without factual support”). The allegations must
“give the defendant fair notice of what the . . . claim
is and the grounds upon which it rests.”
Twombly, 550 U.S. at 555. Stated differently, the
complaint must include “enough facts to state a claim
to relief that is plausible on its face.” Hecker v.
Deere & Co., 556 F.3d 575, 580 (7th Cir. 2009)
(citation and quotation marks omitted). To be facially
plausible, the complaint must allow “the court to draw
the reasonable inference that the defendant is liable for the
misconduct alleged.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at
“[a] document filed pro se is to be liberally
construed, and a pro se complaint, however
inartfully pleaded, must be held to less stringent standards
than formal pleadings drafted by lawyers.” Erickson
v. Pardus, 551 U.S. 89, 94 (2007). However, the Court
[I]t is also well established that pro se litigants are not
excused from compliance with procedural rules. [T]he Supreme
Court has never suggested that procedural rules in ordinary
civil litigation should be interpreted so as to excuse
mistakes by those who proceed without counsel[.] Further, as
the Supreme Court has noted, in the long run, experience
teaches that strict adherence to the procedural requirements
specified by the legislature is the best guarantee of
evenhanded administration of the law.
Loubser v. United States, 606 F.Supp.2d 897, 909
(N.D. Ind. 2009) (citations and quotation marks omitted).
Rule of Civil Procedure 15(a)(1) allows a party to amend its
pleading once as a matter of course within twenty-one days
after serving it, or “if the pleading is one to which a
responsive pleading is required, 21 days after service of a
responsive pleading or 21 days after service of a motion
under Rule 12(b).” After a responsive pleading has been
filed and twenty-one days have passed, “a party may
amend its pleading only with the opposing party's written
consent or the court's leave. The court should freely
give leave when justice so requires.” Fed. R. Civ. Pro.
15(a)(2). The Rule, however, “do[es] not mandate that
leave be granted in every case. In particular, a district
court may deny a plaintiff leave to amend his complaint if
there is undue delay, bad faith[, ] or dilatory motive . . .
[, or] undue prejudice . . ., [or] futility of
amendment.” Park v. City of Chicago, 297 F.3d
606, 612 (7th Cir. 2002) (citation and quotation marks
omitted). “Whether to grant or deny leave to amend is
within the district court's discretion.”
Campbell v. Ingersoll Milling Machine Co., 893 F.2d
925, 927 (7th Cir. 1990).
is an inmate at the Pendleton Correctional Facility in
Pendleton, Indiana. While in custody at Pendleton, Bigsby
suffered from a hernia. Bigsby was examined by various
medical providers and then underwent three separate surgeries
at St. Vincent Anderson Regional Hospital on April 16, 2013,
July 14, 2014, and March 12, 2015, to address the hernia.
During the first surgery, a Ventrio Hernia Patch was
implanted in Bigsby. During the second and third surgeries, a
Ventralex Hernia Patch was implanted. Each of these hernia
patch kits was manufactured by Davol.
each of the surgeries, Bigsby continued to suffer pain from
the hernia and experienced infections. He alleges that each
hernia patch kit came loose, eroded, or had holes forming in
it, and it would become defective within four months after
each surgery. Bigsby asserts that he suffers great pain and
internal bleeding because of malfunctions of the hernia patch
kits. To address the discomfort and pain, Bigsby pushes his
intestines back into his abdomen when the hernia flares up.
filed his Complaint against Davol on January 29, 2016, in the
Madison Circuit Court, asserting that Davol's hernia
patch kits are defective (Filing No. 1-2 at 7-10).
On February 3, 2016, Davol timely removed the case to this
Court based on diversity jurisdiction (Filing No.
1). Davol then promptly filed its Motion to Dismiss on
March 9, 2016 (Filing No. 20). The Court set an
April 27, 2016 deadline for amending pleadings, including
adding new parties (Filing No. 17 at 2). The parties
participated in an initial status conference on April 11,
2016, and the Court extended the deadline to file motions to
amend the pleadings to May 27, 2016 (Filing No. 27).
On June 1, 2016, Bigsby filed his Motion for Leave to File a
Belated Motion to Amend Complaint, explaining that his motion
was untimely filed because the jail where he is housed was on
lockdown, and he was not given access to a computer to file
his motion until after the filing deadline passed (Filing