United States District Court, D. Nebraska
SAMONE T. PARKER, Individually and as Special Administrator of the Estate of Tonya L. Drapeau, deceased; Plaintiff,
THE UNITED STATES OF AMERICA, ex rel.; THE UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, INDIAN HEALTH SERVICE, WINNEBAGO HOSPITAL, VISTA STAFFING SOLUTIONS, INC., NEVINE MAHMOUD, M.D.; ROBIN HARRIS, R.N.; and DENA NEIMAN, N.P.; Defendants.
MEMORANDUM AND ORDER
SMITH CAMP CHIEF UNITED STATES DISTRICT JUDGE
matter is before the Court on the Motion to Dismiss, ECF No.
29, filed by Defendants United States, United States
Department of Health and Human Services (DHHS), Indian Health
Service (IHS), Winnebago Hospital, and Dena Neiman
(collectively, Movants). For the reasons stated below, the
Motion will be granted.
following facts are those alleged in the Complaint, ECF No.
1, and assumed true for purposes of the pending Motion to
March 21, 2016, Tonya Drapeau went to the Winnebago Hospital
emergency room in Winnebago, Nebraska, and complained about
her breathing. Comp. ¶ 18, ECF No. 1, Page ID 4. Drapeau
was discharged from the hospital and, two days later on March
23, 2016, she died. Samone Parker, the Plaintiff and Special
Administrator of Drapeau's estate, brought this survival
and wrongful death action alleging “[o]ne or more or
all of Defendants and/or their agent(s) and/or employee(s)
failed to properly assess, treat, and/or diagnose Ms. Drapeau
while she was at Winnebago Hospital and released her from the
hospital.” Id. at ¶ 19.
Vista Staffing Solutions, Inc., and Defendant Nevine Mahmoud
submitted an Answer, ECF No. 23, to the Complaint, and
Defendant Robin Harris was granted an extension of time to
July 13, 2018, to submit an answer or other responsive
pleading, ECF No. 39. The Movants filed their Motion to
Dismiss under Federal Rule of Civil Procedure 12(b)(1) and
12(b)(6) arguing DHHS, IHS, Winnebago Hospital, and Dena
Neiman should be dismissed from this action and that the
Complaint does not state enough factual content to support
OF REVIEW 
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). To satisfy this
requirement, a plaintiff must plead “enough facts to
state a claim to relief that is plausible on its face.”
Corrado v. Life Inv'rs Ins. Co. of Am., 804 F.3d
915, 917 (8th Cir. 2015) (quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). “A claim has
facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.”
Barton v. Taber, 820 F.3d 958, 964 (8th Cir. 2016)
(quoting Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009)). “Threadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do
not suffice.” Zink v. Lombardi, 783 F.3d 1089,
1098 (8th Cir. 2015) (quoting Iqbal, 556 U.S. at
678), cert. denied, 135 S.Ct. 2941 (2015). The
complaint's factual allegations must be “sufficient
to ‘raise a right to relief above the speculative
level.'” McDonough v. Anoka Cty., 799 F.3d
931, 946 (8th Cir. 2015) (quoting Twombly, 550 U.S.
at 555). The Court must accept factual allegations as true,
but it is not required to accept any “legal conclusion
couched as a factual allegation.” Brown v. Green
Tree Servicing LLC, 820 F.3d 371, 373 (8th Cir. 2016)
(quoting Iqbal, 556 U.S. at 678). Thus, “[a]
pleading that offers ‘labels and conclusions' or
‘a formulaic recitation of the elements of a cause of
action will not do.'” Ash v. Anderson
Merchandisers, LLC, 799 F.3d 957, 960 (8th Cir. 2015)
(quoting Iqbal, 556 U.S. at 678), cert.
denied, 136 S.Ct. 804 (2016).
motion to dismiss, courts must rule “on the assumption
that all the allegations in the complaint are true, ”
and “a well-pleaded complaint may proceed even if it
strikes a savvy judge that actual proof of those facts is
improbable, and ‘that a recovery is very remote and
unlikely.'” Twombly, 550 U.S. at 555 &
556 (quoting Scheuer v. Rhodes, 416 U.S. 232, 236
(1974)). “Determining whether a complaint states a
plausible claim for relief . . . [is] a context-specific task
that requires the reviewing court to draw on its judicial
experience and common sense.” Mickelson v. Cty. of
Ramsey, 823 F.3d 918, 923 (8th Cir. 2016) (alternation
in original) (quoting Iqbal, 556 U.S. at 679).
brought her claims against the Movants under the Federal Tort
Claims Act (FTCA), 28 U.S.C. §§ 2671-2680. The FTCA
“waives federal sovereign immunity and grants district
courts jurisdiction over a certain category of claims against
the United States.” Lopez v. United States,
790 F.3d 867, 871 (8th Cir. 2015) (quoting Eubank v.
Kansas City Power & Light Co., 626 F.3d 424, 427
(8th Cir. 2010)). “The United States can be held liable
under the FTCA ‘to the extent that a private person,
under like circumstances, would be liable to the plaintiff
under the substantive law of the state where the alleged
wrongful conduct took place[.]'” Lopez,
790 F.3d at 871 (quoting Green Acres Ents., Inc. v.
United States, 418 F.3d 852, 856 (8th Cir. 2005)).
Federal agencies are not proper defendants under the FTCA,
“the United States is the proper defendant.”
Duncan v. Dep't of Labor, 313 F.3d 445, 447 (8th
Cir. 2002) (citing F.D.I.C. v. Meyer, 510 U.S. 471,
476-77 (1994)). Federal employees are also immune from suit
where “the United States Attorney certifies that the
federal employee acted within the scope of [her]
employment.” Osborn v. Haley, 549 U.S. 225,
238 (2007) (quoting Mitchell v. Carlson, 896 F.2d
128, 133 (5th Cir. 1990)).
on the foregoing principles, the parties agree that, of the
Movants, only the United States is the proper defendant.
Accordingly, the Court will dismiss DHHS, IHS, Winnebago
Hospital, and Dena Neiman from this action.
United States also argues that the Complaint does not state
enough factual content to support plausible claims against it
under Rule 8 of the Federal Rules of Civil Procedure. The
only factual allegations made in the Complaint are contained
in the following four paragraphs:
18. On March 21, 2016, Ms. Drapeau presented to the emergency
room at Winnebago Hospital with ...