United States District Court, E.D. Tennessee
A. VARLAN CHIEF UNITED STATES DISTRICT JUDGE
the Court is defendant Liberty Mutual
(“Liberty”)'s Motion to Dismiss
Plaintiff's Complaint for Failure to State a Claim Upon
Which Relief Can be Granted [Doc. 9]. Liberty moves the Court
to dismiss plaintiff's complaint [Doc. 1] under Federal
Rule of Civil Procedure 12(b)(6). Plaintiff, who has
proceeded in this matter pro se, has failed to
timely respond to Liberty's motion. See E.D.
Tenn. L.R. 7.1(a). Under this Court's Local Rules,
“[f]ailure to respond to a motion may be deemed a
waiver of any opposition to the relief sought.” E.D.
Tenn. L.R. 7.2. Nevertheless,  the Court has carefully
considered the matter and, for the reasons explained below,
will dismiss plaintiff's complaint.
case concerns a dispute over plaintiff's access to
prescribed medications following an emergency room visit.
Plaintiff's pro se complaint is, respectfully,
difficult for the Court to comprehend. As the Court reads the
complaint, plaintiff alleges that she is a heart patient who
underwent a complete left elbow replacement in 2003 [Doc. 1
p. 2]. Then, on August 30, 2017, plaintiff visited the
emergency room for problems with her elbow and was prescribed
two medications by attending doctor Chris Smith
[Id.]. Plaintiff delivered these prescriptions to a
Walgreens store that evening to be filled [Id.]. The
next day, plaintiff called to see if her medications were
ready, but was told that her insurance adjuster's
approval was required [Id.]. Plaintiff thus called
defendant Veronda RuBright, an adjuster for defendant
Liberty, who informed plaintiff she needed the hospital
treatment records to proceed [Id.]. Plaintiff then
had the hospital fax those records to RuBright, but despite
calling back six times that day, plaintiff was not able to
reach RuBright to complete the approval process
September 1, plaintiff called the hospital again and was told
that RuBright had not sent a release form to permit the
hospital to fax the records [Id.]. Plaintiff then
called RuBright to have her to send the form, which she did
later that day [Id. at 2-3]. Plaintiff next called
Walgreens to see if her medications were available, but she
was again told that RuBright had not called to give
Liberty's approval [Id. at 3]. Plaintiff then
called RuBright three times, followed by twenty-four calls to
Liberty's main office, without success [Id.].
Finally, on September 5, Walgreens personnel called plaintiff
to tell her that, according to RuBright, Dr. Smith was not
approved to prescribe medicine for plaintiff; thus, Liberty
would not approve payment [Id.]. Ultimately,
plaintiff asserts that she went six days without necessary
medication for her elbow as a result of Liberty's conduct
September 7, plaintiff filed this action in the United States
District Court for the Middle District of Tennessee, seeking
$1.5 million from Liberty and RuBright for the conduct
described above [Id. at 4]. Plaintiff asserts that
she had an “‘open medical' contract”
with Liberty as of July 10, 1998, and that defendants
breached this contract through their “inhuman and
negligent treatment” of her [Id. at 3].
Plaintiff has also attached to her complaint a judgment
entered by the Circuit Court for Lincoln County, Tennessee,
on July 7, 1998 [Id. at 7-9]. This judgment appears
to be the product of a worker's compensation case brought
by plaintiff concerning an occupational elbow injury she
incurred on January 4, 1994 [Id. at 8]. Among other
relief, the court ordered plaintiff's employer and
Liberty to pay “all future, authorized, reasonable, and
necessary medical expenses incurred by [p]laintiff . . . as
required by the Worker's Compensation Law of the State of
Tennessee” [Id.]. The Court assumes this is
the “contract” to which plaintiff refers in her
September 11, United States District Judge Aleta A. Trauger
entered an order granting plaintiff leave to proceed in
forma pauperis [Doc. 3 p. 1]. However, in that same
order, Judge Trauger conducted a cursory review of
plaintiff's complaint-as required by 28 U.S.C. §
1915(e)(2)-and concluded that plaintiff had filed her action
in the wrong venue [Id.]. Judge Trauger found that,
under 28 U.S.C. § 1391(b)(2)-(3), venue would instead be
proper in the Eastern District of Tennessee [Id. at
2]. Therefore, Judge Trauger transferred the action to this
Court under 28 U.S.C. § 1406(a) [Id.; Doc. 4].
On October 24, defendant Liberty filed the instant motion to
dismiss [Doc. 9], as well as a memorandum in support [Doc.
10]. Defendant RuBright has yet to appear in this action, and
the record does not indicate that she has been served with
process. Under Local Rule 7.1(a), plaintiff had twenty-one
days in which to respond to Liberty's dispositive motion.
Plaintiff has not done so, nor has she taken any other action
in this case since filing her complaint.
Standard of Review
8(a)(2) sets out a liberal pleading standard. Smith v.
City of Salem, 378 F.3d 566, 576 n.1 (6th Cir. 2004).
Thus, a complaint filed in federal court need only contain
“‘a short and plain statement of the claim
showing that the pleader is entitled to relief, ' in
order to ‘give the [opposing party] fair notice of what
the . . . claim is and the grounds upon which it
rests.'” Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355
U.S. 41, 47 (1957)). Detailed factual allegations are not
required, but a party's “obligation to provide the
‘grounds' of his ‘entitle[ment] to
relief' requires more than labels and conclusions.”
Id. “[A] formulaic recitation of the elements
of a cause of action will not do”; nor will “an
accusation”; nor will “‘naked
assertion[s]' devoid of ‘further actual
enhancement.'” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (second alteration in original) (quoting
Twombly, 550 U.S. at 557).
deciding a Rule 12(b)(6) motion, the court must determine
whether the complaint contains “enough facts to state a
claim to relief that is plausible on its face.”
Twombly, 550 U.S. at 570; accord Directv, Inc.
v. Treesh, 487 F.3d 471, 476 (6th Cir. 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.” Iqbal, 556 U.S. at 678.
“Determining whether a complaint states a plausible
claim for relief will [ultimately] . . . be a
context-specific task that requires [the Court] to draw on
its judicial experience and common sense.” Id.
at 679. In conducting this inquiry, the Court “must
construe the complaint in a light most favorable to
plaintiff, accept all well-pled factual allegations as
true, and determine whether plaintiff undoubtedly can prove
no set of facts in support of those allegations that would
entitle [her] to relief.” Bishop v. Lucent Techs.,
Inc., 520 F.3d 516, 519 (6th Cir. 2008) (citing
Harbin-Bey v. Rutter, 420 F.3d 571, 575 (6th Cir.
given plaintiff's pro se status, the Court notes
that federal courts have a duty to “liberally construe
the briefs of pro se litigants and apply less
stringent standards to parties proceeding pro se
than to parties represented by counsel.” Bouyer v.
Simon, 22 Fed.Appx. 611, 612 (6th Cir. 2001). At the
same time, however, “the lenient treatment generally
accorded to pro se litigants has limits.”
Pilgrim v. Littlefield, 92 F.3d 413, 416 (6th Cir.
1996). As such, courts have not typically “been willing
to abrogate basic pleading essentials in pro se
suits.” Wells v. Brown, 891 F.2d 591, 594 (6th
Court will first address defendant Liberty's motion to
dismiss [Doc. 9]. The Court will then turn to the question
whether it should also dismiss plaintiff's claims against
defendant RuBright, who has not appeared before this Court.
As explained further below, the Court will dismiss all claims
against both defendants without prejudice.