Kruse v. Byrne et al
ORDER ADOPTING 95 REPORT AND RECOMMENDATIONS with the exception of the Magistrate Judge's recommendation to deny the motion to dismiss the wrongful death claims against Drinkard, Langham, Scott and Pinkard. It is ORDERED that the motion to dismiss the wrongful death claims against Drinkard, Langham, Scott and Pinkard is GRANTED. Signed by Judge Kristi K. DuBose on 11/8/2012. (sdb)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
FRANK KRUSE, as personal representative of )
Jacob Jordan, deceased,
DALE BYRNE, et al.,
CIVIL ACTION NO.: 11-00513-KD-C
After due and proper consideration of all portions of this file deemed relevant to the issues
raised and a de novo determination of those portions of the recommendation to which objection is
made, the recommendation of the Magistrate Judge made under 28 U.S.C. § 636(b)(l)(B) and dated
October 19, 2012 is ADOPTED as the opinion of this Court with the exception of the Magistrate
Judge’s recommendation to deny the motion to dismiss the wrongful death claims against Drinkard,
Langham, Scott and Pinkard.
Specifically, as to the claim of wrongful death against Drinkard and Langham (guards at the
jail), the Complaint is completely without any factual basis to support the claim that the negligence
of Langham or Drinkard proximately caused the death of the decedent.
Plaintiff fails to allege any
facts regarding any involvement these defendants had with Jacob Jordan, the decedent, during his
Moreover, there is a but a single allegation supporting the negligence claim against
Scott and Pinkard; that either Scott or Pinkard was “called out” to by decedent’s mother and told
that the decedent was ill and needed to go to the hospital.
This sole allegation against either Scott
or Pinkard is insufficient to “raise a right to relief above the speculative level” on the claim that the
negligence of Scott or Pinkard contributed the death of Jordan.
Bell Atlantic Corp. v. Twombley,
550 U.S. 544, 545 (2007)(While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not
need detailed factual allegations, ibid., 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 a
cause of action's elements will not do. Factual allegations must be enough to raise a right to relief
above the speculative level on the assumption that all of the complaint's allegations are true.)
Accordingly, it is ORDERED that the motion to dismiss the wrongful death claims against
Drinkard, Langham, Scott and Pinkard on the basis that is GRANTED.
DONE and ORDERED this the 8th day of November 2012.
/s/ Kristi K. DuBose
KRISTI K. DUBOSE
UNITED STATES DISTRICT JUDGE
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