United States District Court, N.D. Indiana, South Bend Division
DARLENE MAYS, as Personal Representative of the Estate of DANIEL MAYS, Plaintiff,
UNITED STATES OF AMERICA, d/b/a NORTHERN INDIANA HEALTH CARE SYSTEM, including FORT WAYNE CAMPUS, MARION CAMPUS, RICHARD J. ROUDEBUSH VA MEDICAL CENTER, PERU COMMUNITY BASED OUTPATIENT CLINIC, and VA ANN ARBOR HEALTHCARE SYSTEM, Defendant.
OPINION AND ORDER
Michael G. Gotsch, Sr. United States Magistrate Judge
March 24, 2016, Defendant filed its Motion to Dismiss, which
requested the dismissal of Count II of the Plaintiff's
Complaint for lack of subject matter jurisdiction, and
dismissal of each of the Counts of the complaint for failure
to state a clam for relief [DE 11]. On June 2, 2016,
Plaintiff filed its response in opposition to Defendant's
motion [DE 15]. Defendant's motion became ripe
on June 28, 2016, when a reply brief was filed [DE
22]. The undersigned may enter a ruling on this matter
based on the parties' consent pursuant to 28 U.S.C.
§ 636(c)(1). For the reasons discussed below, the Court
grants Defendant's motion, in part, and denies
Defendant's motion, in part.
December 22, 2015, Darlene Mays, as the personal
representative of the Estate of Daniel Mays filed this cause
of action against the Defendant under the Federal Tort Claims
Act, 28.U.S.C. § 2671, et seq., and 28 U.S.C.
§ 1346(b)(1). The personal representative, Darlene Mays,
is the widow of Daniel May.
basis for the Plaintiff's claims is that Daniel Mays was
a Vietnam War era veteran of the United States Marine Corps,
who was eligible for patient, medical, and mental health care
through the United States Department of Veterans Affair (VA).
The complaint details that Mr. Mays received treatment from
the VA at the facilities located in Fort Wayne, IN, Marion,
IN, Peru, IN, Indianapolis, IN, and Ann Arbor, MI, for a
variety of physical and mental health
conditions. Mr. Mays's condition declined
appreciably during November of 2013, when he began to
complain of excruciating pain and even threatened self-harm.
On November 25, 2013, Mr. Mays went to the Emergency Room at
non-VA Woodlawn Hospital due to his intractable pain.
Woodlawn consulted with the Roudebush VA Medical Center
(VAMC) in Indianapolis, which denied him admission and
instead recommended admission to Fort Wayne VA. After again
requesting and being again denied admission to Roudebush
VAMC, Mr. Mays was admitted to Lutheran Hospital in Fort
Wayne, IN. Upon discharge, Mr. Mays was denied physical
therapy and admission to a nursing facility, but was sent
home with an order for home-based health care services. On
December 23, 2013, Mr. Mays committed suicide.
complaint for relief is plead in five counts: Count I -
Professional Negligence; Count II - Breach of Contract; Count
III - Wrongful Death; Count IV - Gross Negligence, and Count
V - Loss of Consortium. The gravamen of Plaintiff's
complaint is that Daniel Mays committed suicide on December
23, 2013, due to the negligent, grossly negligent, and
willful and wanton misconduct of the Defendant.
noted above, the Defendant moved to dismiss each of these
counts for failure to state claim upon which relief can be
granted pursuant to Fed.R.Civ.P. 12(b)(6). Plaintiff, in her
response, concedes that she cannot pursue separate claims for
professional negligence and gross negligence against the
Defendant, but asserts that these acts of negligence form the
basis of her claim for wrongful death. Likewise, Plaintiff
concedes that her claim should not be characterized as a
breach of contract claim. Plaintiff asserts, however, that
she may pursue a loss of consortium claim pursuant to Indiana
Code § 34-23-1-2 (Indiana Adult Wrongful Death Act).
Court has original jurisdiction over this action against the
United States pursuant to the Federal Tort Claims Act. 28
U.S.C. § 1346(b)(1). Therefore, the Federal Rules of
Civil Procedure govern. Under Fed.R.Civ.P. 12(b)(6),
dismissal of a claim is appropriate when it fails to allege a
cause of action for which relief can be granted. Federal law
only requires a plaintiff to provide a short and plain
statement of the claim that the pleader is entitled to
relief. Fed.R.Civ.P. 8; see Bartholet v.
Resihauer A.G. (Zurich), 953 F.2d 1073, 1078 (7th Cir.
1992). When considering a 12(b)(6) motion to dismiss, the
court should construe the claim in the light most favorable
to the pleader, “accepting as true all well-pleaded
facts alleged, and drawing all possible inferences in her
favor.” Tamayo v. Blagojevich, 526 F.3d 1074,
1081 (7th Cir. 2008).
“[t]o survive a motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its
face.'” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 570 (2007)). A complaint need not
include detailed factual allegations, but “a
plaintiff's obligation to provide the grounds of his
entitlement to relief requires more than labels and
conclusions, and a formulaic recitation of the elements of a
cause of action will not do.” Twombly, 550
U.S. at 555 (internal citations quotations omitted). Where
the allegations are no more than conclusions, they are not
entitled to the assumption of truth. Iqbal, 556 U.S.
at 679. Moreover, “the tenet that a court must accept
as true all of the allegations contained in a complaint is
inapplicable to legal conclusions.” Id. at
678. Yet even well-pleaded facts may not be enough for a
claim to survive a motion to dismiss if the facts do not
allow the court to infer more than the mere possibility of
misconduct. Id.In addition, “Rule 8 . . . does
not unlock the doors of discovery for a plaintiff armed with
nothing more than conclusions.” Id. at 678-79.
response [DE 15], Plaintiff concedes the
insufficiency of her complaint, at least, in part. First,
Plaintiff concedes that her complaint should not be
characterized as a breach of contract claim. [DE 15 at
10]. The Court agrees. See, e.g., Sweazey
v. U.S. ex rel. Veterans Admin.Med.Ctr., 69 F. App'x
435, 437 (10th Cir. 2003) [citing
Schismv.UnitedStates, 316 F.3d 1259, 1274-75 (Fed.
Cir. 2002). Accordingly, the Defendant's motion to
dismiss for failure to state a claim should be granted with
respect to Count II.
the Plaintiff acknowledges that she cannot pursue claims for
professional negligence and gross negligence against the
Defendant and these claims should be subsumed in her claim
for wrongful death. The Court also agrees that these claims,
to extent that they exist in this cause of action, lie in the
wrongful death claim and not as separate counts. As such, the
Defendant's motion to dismiss for failure to state a
claim should be granted with respect to Count I and Count IV.
response to Defendant's motion to dismiss Count V, the
Plaintiff asserts that she is entitled to recover loss of
consortium damages on behalf of the Estate of Daniel May
based on ...