Parker v. United States of America

Filing 42

ORDER adopting 34 Report and Recommendation. Deft's 23 Partial Motion to Dismiss is granted in part/denied in part. Pltfs negligent medical care and medical malpractice claims are dismissed with prejudice. Pltf is ordered to amend his complaint and perfect service on the additional parties within thirty days of this order. The motion to dismiss is denied as to the other causes of action pled by pltf. Signed by District Judge Marcia A. Crone on 6/3/21. (tkd, )

UNITED STATES DISTRICT COURT

RAFAEL PARKER,
Plaintiff,
versus
UNITED STATES OF AMERICA,
Defendant.

EASTERN DISTRICT OF TEXAS

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CIVIL ACTION NO. 1:20-CV-444

ORDER ADOPTING REPORT
The Court referred this matter to the Honorable Keith F. Giblin, United States Magistrate
Judge, for consideration. On April 22, 2021, the magistrate judge issued his Report and
Recommendation (#34), recommending that this Court partially grant Defendant United States of
America’s Motion to Dismiss and deny the motion in part. On May 5, 2021, Defendant filed its
objections (#38) to the Report. Plaintiff timely filed his response to the objections (#39).
In accordance with 28 U.S.C. § 636(b), the Court conducted a de novo review of the
magistrate judge’s findings, the record, and the applicable law in this proceeding. After review,
the Court finds that Judge Giblin’s findings and recommendation should be accepted in part.
Defendant presents three objections to the Report. See Objections (#38). First, Defendant
argues that the Report incorrectly found that Plaintiff properly pled a Bivens claim. Id. at 1.
Second, Defendant states the Plaintiff failed to exhaust his administrative remedies for his
negligence in the disciplinary process, negligent supervision, civil conspiracy, and intentional
infliction of emotion distress claims. Id. Finally, Defendant argues the Report incorrectly found
that Plaintiff properly pled a claim for intentional infliction of emotional distress. Id.

The Court agrees with Defendant regarding the Bivens claim. Under Bivens, “a cause of
action [exists] only against government officers in their individual capacities.” Affiliated Prof'l
Home Health Care Agency v. Shalala, 164 F.3d 282, 286 (5th Cir. 1999) (citing Bivens v. Six
Unknown Agents of Federal Buereau of Narcotics, 403 U.S. 388 (1971)). The only Defendant
named in this suit is the United States of America. Plaintiff requests thirty days to perfect service
on the individual officers. Response, at 5–6 (#39). The Court will grant a thirty day extension from
the date of this order for Plaintiff to amend the complaint and cure his service deficiency.
Defendant’s other objections are overruled. Defendant argues that at “no point during the
administrative remedy process did Plaintiff hint at any allegations of negligent supervision,
negligence in the disciplinary process, intentional infliction of emotional distress, or civil conspiracy
claims.” Objections, at 3 (#38). As the magistrate judge noted, a plaintiff does not need to name
specific theories of liability in his administrative complaint, if the plaintiff’s facts enable the
government to reveal additional theories of liability during an investigation, those theories can
properly be considered part of the claim. See Life Partners, Inc. v. United States, 650 F.3d 1026,
1030 (5th Cir. 2011). In this case, Plaintiff set forth specific facts which would enable the
government to reveal the named theories during the course of an investigation. Defendant’s
objection is overruled.
Plaintiff has plausibly pled a claim for intentional infliction of emotional distress. Defendant
argues that “Plaintiff has not alleged facts sufficient to establish that the alleged infliction of his
emotional distress by Defendant was intentional, nor that he has no other avenue for redress.”
Objections, at 5 (#38). Defendant states that Plaintiff has asserted an assault claim and therefore
there is an alternative source of remedy. Id. However, Plaintiff has pled facts of an alleged
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assault and that his medical care was intentionally delayed which led to long term effects. These
facts allow the Court to draw a reasonable inference that the Defendant is liable for alleged
conduct. See Ashcroft v. Iqbal, 556 U.S. 662, 667 (2009)
It is therefore ORDERED that the Report and Recommendation (#34) is ADOPTED in
part. Accordingly, Defendant’s Partial Motion to Dismiss (#23) is GRANTED IN PART AND
DENIED IN PART. Specifically, Plaintiff’s negligent medical care and medical malpractice
claims are DISMISSED, with prejudice. Plaintiff is ORDERED to amend his complaint and
perfect service on the additional parties within thirty days of this order. The motion to dismiss is
denied as to the other causes of action pled by Plaintiff.

Signed this date
Jun 3, 2021

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