SOUCIE v. UNITED STATES OF AMERICA et al

Filing 8

ORDER ON DEFENDANTS MOTION TO DISMISS granting in part 5 Motion to Dismiss for Failure to State a Claim. By JUDGE JON D. LEVY. (nwd)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
MARGARET SOUCIE

)
)
)
)
)
) Case No. 1:14-cv-370-JDL
)
)
)
)
)

Plaintiff,
v.
UNITED STATES OF AMERICA,
CYNTHIA LEVICK FNP, and
SEBASTICOOK FAMILY DOCTORS,
Defendants.

ORDER ON DEFENDANTS’ MOTION TO DISMISS
Plaintiff Margaret Soucie (“Soucie”) has brought a medical malpractice claim
under the Federal Tort Claims Act, 28 U.S.C.A. § 1346(b) (2014), (“FTCA”) against
the United States (“the government”), as well as a parallel claim against Cynthia
Levick, FNP (“Levick”) and Sebasticook Family Doctors (“Sebasticook”) under the
Maine Health Security Act, 24 M.R.S. § 2510 et seq. (2014).

ECF No. 1.

The

government moves to dismiss the FTCA claim pursuant to Federal Rule of Civil
Procedure 12(b)(6), and moves to dismiss the state law claim as improper in light of
the FTCA’s status as the exclusive remedy for certain tort claims against federal
defendants. ECF No. 5 at 3-5. Soucie opposes the motion, while asking in the
alternative that she be given leave to amend her complaint to correct any deficiencies.
ECF No. 6 at 1. For the reasons set forth below, I grant Soucie leave to amend her
complaint within ten (10) days, absent which her complaint will be ordered dismissed
with prejudice.

1 

I. DISCUSSION
A.

Defendants’ Motion to Dismiss
i. FTCA Claim
In evaluating whether Soucie’s complaint is sufficient to survive a Rule 12(b)(6)

motion, I take “as true all well-pleaded facts set forth in the complaint and draw all
reasonable inferences therefrom in the pleader’s favor.” Artuso v. Vertex Pharm., Inc.,
637 F.3d 1, 5 (1st Cir. 2011). I also separate factual allegations in the complaint from
conclusory legal statements that “merely parrot the relevant legal standard.” Young
v. Wells Fargo Bank, N.A., 717 F.3d 224, 231 (1st Cir. 2013). Finally, I analyze
whether the remaining factual allegations “state a plausible, rather than merely a
possible, assertion of defendants’ liability.” Id.
The well-pleaded facts of Soucie’s complaint are as follows: In October, 2012,
Soucie received treatment for lower extremity complaints at Sebasticook, where
Levick, a nurse practitioner, cared for her. ECF No. 1 at 2. Sebasticook is a covered
facility within the meaning of the Federally-Supported Health Centers Assistance
Act (“FSHCAA”), see 42 U.S.C.A. § 233 (2014). Id. At some point in time, Soucie
underwent a right lower leg amputation, although the details of the amputation and
its relationship to the treatment that preceded it are unclear. ECF No. 1 at 3.
Following the loss of her lower leg, Soucie suffered emotional distress, pain and
suffering, and loss of enjoyment of life. Id.

2 

In examining the sufficiency of Soucie’s complaint, I do not credit her assertion
that defendant’s treatment of her leg was “negligent[ ] and in breach of the applicable
standards of care.” ECF No. 1 at 2; see Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
555 (2007) (“[A] formulaic recitation of the elements of a cause of action will not do.”).
Likewise, Soucie’s descriptions of her lower leg treatment as “improper” and her
amputation as “unnecessary” are conclusory, as is her statement that the “improper
treatment” at Sebasticook resulted in the amputation. See ECF No. 1 at 2-3. While
these allegations are not verbatim recitations of the elements of negligence, neither
are they facts sufficient to state a plausible negligence claim. See Shay v. Walters,
702 F.3d 76, 82-83 (1st Cir. 2012). Such “borderline phrases,” which do not exactly
parrot legal conclusions but remain “threadbare or speculative,” are properly
disregarded. See Pruell v. Caritas Christi, 678 F.3d 10, 13 (1st Cir. 2012) (quoting
Peñalbert-Rosa v. Fortuño-Burset, 631 F.3d 592, 595 (1st Cir. 2011)); see also Menard
v. CSX Transp., Inc., 698 F.3d 40, 45 (1st Cir. 2012) (disregarding “assertions
nominally cast in factual terms but so general and conclusory as to amount merely to
an assertion that unspecified facts exist to conform to the legal blueprint.”).
Viewing the complaint in this manner, Soucie has not plead facts that are
sufficient to support a medical malpractice claim under Maine law,1 which requires
a showing that the defendant’s departure from a recognized standard of care
proximately caused injury to the plaintiff. See Merriam v. Wanger, 2000 ME 159, ¶
8, 757 A.2d 778. Stripped of its conclusory statements, Soucie’s complaint is silent as

The FTCA subjects defendants to liability “in accordance with the law of the place where the act or
omission occurred.” 28 U.S.C.A. § 1346(b) (2014).
1

3 

to how Sebasticook and Levick’s medical treatment deviated from the appropriate
standard of care, and is silent as to the causal connection between this alleged
mistreatment and the amputation of Soucie’s lower leg. Accordingly, the complaint
fails to state a claim that would entitle Soucie to relief under the FTCA.
ii. State Law Claims
Soucie’s complaint also includes state law claims against Levick and
Sebasticook as individuals “as a prophylactic measure” in the event that either
defendant was not subject to the FSHCAA.

ECF No. 1 at 4; ECF No. 6 at 2.

Defendants concede that Levick and Sebasticook are subject to the FSHCAA, ECF
No. 5 at 6, and Soucie agrees that in such a case, the FTCA is their exclusive remedy,
ECF No. 6 at 2. Accordingly, Count II of Soucie’s complaint should be dismissed.
B.

Plaintiff’s Request for Leave to Amend Her Complaint
Soucie’s opposition to the government’s Motion to Dismiss contains a request

that “if . . . Plaintiff’s Complaint is too skeletal, Plaintiff seeks leave to amend her
Complaint to remedy any pleading insufficiency.” ECF No. 6 at 1. Federal Rule of
Civil Procedure 15(a)(2) directs that the “court should freely give leave [to amend]
when justice so requires.” I discern no basis to conclude that Soucie should be denied
the opportunity to amend her complaint in order to correctly state a claim, or that
granting Soucie that opportunity will cause substantial prejudice to the government.
Accordingly, Soucie should be given the leave to amend her complaint.

4 

II. CONCLUSION
It is ORDERED that (1) Count II of the complaint is dismissed; (2) Soucie is
granted leave to file an amended complaint within ten (10) days of the date of this
Order; and (3) in the event Soucie fails to file an amended complaint within the tenday period, Count I of the complaint is dismissed and this action shall be deemed
dismissed with prejudice.
SO ORDERED.
Dated: January 8, 2015

/s/ Jon D. Levy____________________
U.S. District Judge

5