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Bigsby v. Davol Inc.

United States District Court, S.D. Indiana, Indianapolis Division

June 8, 2017

NICK C. BIGSBY, Plaintiff,
v.
DAVOL INC., Defendant.

          ORDER GRANTING DEFENDANT'S MOTION TO DISMISS PLAINTIFF'S AMENDED COMPLAINT

          TANYA WALTON PRATT, JUDGE

         This 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.

         I. LEGAL STANDARD

         Federal 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).

         The 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).

         Under 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”).

         The 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).

         II. BACKGROUND

         The 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.

         Bigsby 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 ...


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