United States District Court, S.D. Indiana, Indianapolis Division
NICK C. BIGSBY, Plaintiff,
DAVOL INC., Defendant.
ORDER GRANTING DEFENDANT'S MOTION TO DISMISS
PLAINTIFF'S AMENDED COMPLAINT
WALTON PRATT, JUDGE
matter is before the Court on Defendant Davol Inc.'s
(“Davol”) Motion to Dismiss pro se
Plaintiff Nick Bigsby's (“Bigsby”) Amended
Complaint filed pursuant to Federal Rules of Civil Procedure
12(b)(6) and 41(b) (Filing No. 48). After undergoing
three separate surgeries in 2013, 2014, and 2015 to treat a
hernia, Bigsby continued to suffer pain, so he initiated this
lawsuit against Davol, alleging that Davol's
“hernia patch kits” are defective. Davol moved to
dismiss Bigsby's complaint on the basis that it failed to
allege a sufficient factual basis to support any legal claims
for relief. The Court granted Davol's first motion to
dismiss and granted Bigsby thirty days to file a new proposed
amended complaint (Filing No. 45). After Bigsby
filed his Amended Complaint (Filing No. 47), Davol
filed the pending Motion to Dismiss, asserting that the
Amended Complaint suffers the same deficiencies as the
original complaint. For the following reasons, the Court
GRANTS Davol's Motion to Dismiss.
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, the Supreme Court explained that the
complaint must allege facts that are “enough to raise a
right to relief above the speculative level.” 550 U.S.
544, 555 (2007). 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 556).
Federal Rule of Civil Procedure 41(b), an action or claim may
be dismissed with prejudice where a plaintiff fails to comply
with the federal rules or with court orders. O'Rourke
Bros., Inc. v. Nesbitt Burns, Inc., 201 F.3d 948, 953
(7th Cir. 2000) (“dismissal may be with prejudice under
Rule 41(b), which covers failure of the plaintiff to
prosecute or to comply with these rules or any order of
Court notes, “[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 also notes:
[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).
[E]ven pro se litigants . . . must expect to file a legal
argument and some supporting authority. A litigant who fails
to press a point by supporting it with pertinent authority,
or by showing why it is sound despite a lack of supporting
authority . . . forfeits the point. We will not do his
research for him.
Mathis v. New York Life Ins. Co., 133 F.3d 546, 548
(7th Cir. 1998) (citations and quotation marks omitted).
following facts are not necessarily objectively true, but as
required when reviewing a motion to dismiss, the Court
accepts as true all factual allegations in the Amended
Complaint and draws all inferences in favor of Bigsby as the
non-moving party. See Bielanski, 550 F.3d at 633.
is an inmate at the Pendleton Correctional Facility
(“Pendleton”). While in custody at Pendleton,
Bigsby suffered from a hernia. He was examined by various
medical providers and 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 ...