Slocum v. Livington, CIVIL ACTION H-11-486

• Decision Date: 08 June 2012
• Docket Number: CIVIL ACTION H-11-486
• Parties: YALE and ANNIE SLOCUM, Individu-ally and as Representatives of The Estate of Wesley Slocum, And CHERYL SLOCUM, Individually and as Next Friend of W.S., Plaintiff, v. BRAD LIVINGTON, TROY SIMPSON, and OWEN MURRAY, M.D., Defendant.
• Court: U.S. District Court — Southern District of Texas

YALE and ANNIE SLOCUM, Individu-ally and as Representatives ofThe Estate of Wesley Slocum, And CHERYL SLOCUM, Individually and as Next Friend of W.S., Plaintiff,

v.BRAD LIVINGTON, TROY SIMPSON, and OWEN MURRAY, M.D., Defendant.

CIVIL ACTION H-11-486

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION

Dated: June 8, 2012

OPINION AND ORDER OF DISMISSAL

Pending before the Court in the above referenced wrongful death action, seeking damages for cruel and unusual punishment in the alleged failure to provide insulin to inmate Wesley Slocum in July 2010, are the following opposed motions: (1) Defendant Medical Director of the Pam Lychner State Jail Dr. Owen J. Murray's ("Murray's") motion to dismiss based on lack of subject matter jurisdiction and failure to state a claim under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) (instrument #25)¹ ; (2) Defendants Director of Texas Department of Corrections Brad Livingston ("Livingston's") and Senior Warden of the Pam Lychner State Jail Troy Simpson's ("Simpson's") motion to dismiss based on lack of subject matter jurisdiction and failure to state a claimunder Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) (#27); and (3) a motion for nonsuit (#44), filed by Plaintiffs Yale and Annie Slocum, Individually and as Representatives of the Estate of Wesley Slocum and Cheryl Slocum, Individually and as Next Friend of W.S., a Minor Child, all survivors of Wesley Slocum, Deceased.

This case was previously stayed by the Court until the Court could review and resolve the threshold immunity issues raised in the motions to dismiss. The Court now lifts the stay and addresses the motions.

Allegations of the Second Amended Complaint

Plaintiffs complain that on July 14, 2010, Wesley Slocum, a known insulin-dependent diabetic, was incarcerated at the Pam Lychner State Jail. They assert that on that date employees of Defendants, who knew or in the exercise of reasonable care should have known, that the prisoner required insulin, failed to furnish and intentionally and/or recklessly and with conscious indifference to the prisoner's health and safety, withheld insulin from Wesley Slocum while he was in their custody, thereby causing his slow and painful death. This conduct of Defendants' employees, acting under regulations, policies, and customs of the State of Texas with indifference to Slocum's constitutional rights, constituted cruel and unusual punishment in violation of the Eighth Amendment of the United States Constitution and of 42 U.S.C. § 1983. Plaintiffs further charge Defendants with a failure to adequately train andsupervise employees and with encouraging them to ignore the constitutional rights of inmates similarly situated to Wesley Slocum, including Wesley Slocum. They contend that the failure to render necessary care was willful, deliberate, and malicious, as well as in reckless disregard of the constitutional rights of Wesley Slocum.

Standards of Review

"When a motion to dismiss for lack of jurisdiction 'is filed in conjunction with other Rule 12 motions, the court should consider the Rule 12(b)(1) jurisdictional attack before addressing any attack on the merits." Crenshaw-Logal v. City of Abilene, Texas, No. 11-10264, 2011 WL 3363872, *1 (5th Cir. Aug. 4, 2011), quoting Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001); see also Randall D. Wolcott, MD, PA v. Sebelius, 635 F.3d 757, 762 (5th Cir. Mar. 15, 2011); Fed. R. Civ. P. 12(h)(3). If a complaint could be dismissed for both lack of jurisdiction and for failure to state a claim, "the court should dismiss only on the jurisdictional ground under [Rule] 12(b)(1), without reaching the question of failure to state a claim under [Rule] 12(b)(6)." Crenshaw-Logal, 2011 WL 3363872, *1, quoting Hitt v. City of Pasadena, 561 F.2d 606, 608 (5th Cir. 1977)(citing 5B C. Wright & A. Miller, Federal Practice and Procedure § 1350 (1971))(district court should consider Rule 12(b)(1) challenge before other defenses. The reasons behind this practice are to preclude courts from issuingadvisory opinions and barring courts without jurisdiction "'from prematurely dismissing a case with prejudice.'". Id. , citing Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 101 (1998), and Ramming, 281 F.3d at 161.

Rule 12(b)(1) allows a party to move for dismissal of an action for lack of subject matter jurisdiction. The party asserting that subject matter exists, here the plaintiff, must bear the burden of proof for a 12(b)(1) motion. Ramming, 281 F.3d at 161. In reviewing a motion under 12(b)(1) the court may consider (1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts. Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir. 1981).

A motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1) is characterized as either a "facial" attack, i.e., the allegations in the complaint are insufficient to invoke federal jurisdiction, or as a "factual" attack, i.e., the facts in the complaint supporting subject matter jurisdiction are questioned. In re Blue Water Endeavors, LLC, Bankr. No. 08-10466, Adv. No. 10-1015, 2011 WL 52525, *3 (E.D. Tex. Jan. 6, 2011), citing Rodriguez v. Texas Comm'n of Arts, 992 F. Supp. 876, 878-79 (N.D. Tex. 1998), aff'd, 199 F.3d 279 (5th Cir. 2000). A facial attack happens when a defendant files a Rule 12(b)(1) motionwithout accompanying evidence. Paterson v. Weinberger, 644 F.2d 521, 523 (5th Cir. 1981). In a facial attack, allegations in the complaint are taken as true. Blue Water, 2011 WL 52525 at *3, citing Saraw Partnership v. United States, 67 F.3d 567, 569 (5th Cir. 1995).

If it is a factual attack, the Court may consider any evidence (affidavits, testimony, documents, etc.) submitted by the parties that is relevant to the issue of jurisdiction. Id., citing Irwin v. Veterans Admin., 874 F.2d 1092, 1096 (5th Cir. 1989). A defendant making a factual attack on a complaint may provide supporting affidavits, testimony or other admissible evidence. Patterson v. Weinberger, 644 F.3d 521, 523 (5th Cir. 1981). The plaintiff, to satisfy its burden of proof, may also submit evidence to show by a preponderance of the evidence that subject matter jurisdiction exists. Id. The court's consideration of such matters outside the pleadings does not convert the motion to one for summary judgment under Rule 56(c). Robinson, 2008 WL 4692392 at *10, citing Garcia, 104 F.3d at 1261. "Unlike in a facial attack where jurisdiction is determined upon the basis of allegations of the complaint, accepted as true[,] when a factual attack is made upon federal jurisdiction, no presumption of truthfulness attaches to the plaintiffs' jurisdictional allegations, and the court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case.In a factual attack, the plaintiffs have the burden of proving that federal jurisdiction does in fact exist." Evans v. Tubbe, 657 F.2d 661, 663 (5th Cir. 1981). In resolving a factual attack on subject matter jurisdiction under Rule 12(b)(1), the district court, which does not address the merits of the suit,² has significant authority "'to weigh the evidence and satisfy itself as to the existence of its power to hear the case.'" Robinson v. Paulson, No. H-06-4083, 2008 WL 4692392, *10 (S.D. Tex. Oct. 22, 2008), quoting Garcia v. Copenhaver, Bell & Assocs., 104 F.3d 1256, 1261 (11th Cir. 1997), and citing Clark v. Tarrant County, 798 F.2d 736, 741 (5th Cir. 1986).

Federal Rule of Civil Procedure 8(a)(2) provides, "A pleading that states a claim for relief must contain . . . a short and plainstatement of the claim showing that the pleader is entitled to relief." When a district court reviews a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), it must construe the complaint in favor of the plaintiff and take all well-pleaded facts as true. Randall D. Wolcott, MD, PA v. Sebelius, 635 F.3d 757, 763 (5th Cir. 2011), citing Gonzalez v. Kay, 577 F.3d 600, 603 (5th Cir. 2009).

"While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, . . . a plaintiff's obligation to provide the 'grounds' of his 'entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do . . . ." Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1964-65 (2007)(citations omitted). "Factual allegations must be enough to raise a right to relief above the speculative level." Id. at 1965, citing 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-236 (3d ed. 2004)("[T]he pleading must contain something more . . . than . . . a statement of facts that merely creates a suspicion [of] a legally cognizable right of action"). "Twombly jettisoned the minimum notice pleading requirement of Conley v. Gibson, 355 U.S. 41 . . . (1957)["a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him torelief"], and instead required that a complaint allege enough facts to state a claim that is plausible on its face." St. Germain v. Howard,556 F.3d 261, 263 n.2 (5th Cir. 2009), citing In re Katrina Canal Breaches Litig. , 495 F.3d 191, 205 (5th Cir. 2007)("To survive a Rule 12(b)(6) motion to dismiss, the plaintiff must plead 'enough facts to state a claim to relief that is plausible on its face.'"), citing Twombly, 127 S. Ct. at 1974). "'A claim has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.'" Montoya v. FedEx Ground Package System, Inc., 614 F.3d 145, 148 (5th Cir. 2010), quoting Ashcroft v. Iqbal, 129 S. Ct. 1937, 1940 (2009). Dismissal is...