United States District Court, E.D. Texas, Sherman Division.
Bessie BAKER, Plaintiff,
PARIS PACKAGING, INC., et al., Defendants.
Case No. 4:08CV145
Attorneys & Firms
Bessie Baker, Roxton, TX, pro se.
James William Karel, Sheehy, Ware & Pappas, P.C., Dallas, TX, Catherine Love Hanna, Hanna & Plaut, LLP, Austin, TX, Rebecca Ashley Applewhite, Willoughby, Stuart & Bening, San Jose, CA, Neal P. Flagg, Steed Dunnill Reynolds Murphy Lamberth LLP, Rockwall, TX, for Defendants.
REPORT AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE
DON D. BUSH, UNITED STATES MAGISTRATE JUDGE
*1 Now before the Court are various motions to dismiss filed by Defendants in this matter. The facts forming the basis of Plaintiff’s complaint here are not altogether clear. In her original complaint (which seems to be the lengthiest of her pleadings before the Court), Plaintiff seeks damages against Defendant Paris Packaging for failing to report an injury in a timely manner, damages against Defendant Liberty Mutual for “conflict of interest for delay of treatment and abuse of power,” and damages against Defendant Kyle Jones for malpractice and misconduct. Dkt. 1 at 7. On July 15, 2008, the Court granted Defendant’s motion for more definite statement and ordered Plaintiff to amend her complaint by specifically alleging the causes of action she asserts against each Defendant and detailing the underlying facts supporting the elements of her claims, including the date and circumstance of the alleged injury, each defendant’s relationship to her claims, the statutory basis for her claims in federal court, and any alleged events of discrimination. See Dkt. 28.
In response, Plaintiff filed a one-page document entitled “Respond for a More Definite Statement,” which the clerk’s office docketed as an amended complaint. See Dkt. 34. In this document, Plaintiff claims that Paris Packaging violated worker’s compensation laws and that this violation is an example of “discrimination, gender-mistreatment, and race.” As to Defendant Liberty Mutual, Plaintiff alleges that it “used Dr. Kyle Jones to excape (sic) from paying Ms. Baker worker compensation. And direction her to social security.” Finally, she claims that, “[a]ll parties are responsible for their actions of discrimination, neglect of human rights by not get medical treatment in a timely manner, abuse of power,” and “all mention company are in violation of Texas worker compensation law and federal law governing worker.” Dkt. 34. There are no specific claims made against Dr. Kyle Jones, other than Plaintiff’s claim that he, along with the other Defendants, should be held responsible for her health.
Another pleading filed by Plaintiff with this Court alleges that all Defendants “are in violation of the Texas Worker Compensation Law, Civil Rights Act and Medical Malp.” Dkt. 16. Other than using a form complaint referencing Title VII in the heading, Plaintiff has not cited any statute or recognized cause of action in support of her claims. Plaintiff has also failed to provide any factual allegations in support of her claims.
Defendant Paris Packaging
Against Defendant Paris Packaging, Plaintiff appears to be making claims of racial and gender discrimination under Title VII. However, Plaintiff has failed to state sufficient facts to support such a claim. Primarily, Plaintiff has never alleged her relationship to Paris Packaging, although the Court presumes from the allegations before it that Paris Packaging was her employer. Moreover, Plaintiff has not outlined the facts supporting her claims of discrimination. The allegation that she did not receive appropriate medical care cannot, in and of itself, support claims of race or gender discrimination. She has not alleged how her race or her gender were involved in this alleged employment decision and must do so to state a Title VII claim. See 42 U.S.C. § 2000e. Plaintiff was given the opportunity to re-plead, with specific instructions from the Court as to what information it required. Plaintiff failed to provide the information sufficient to state a claim. Plaintiff has also not shown what workers’ compensation laws were violated, how they were violated, and whether she exhausted administrative remedies as to those claims. Therefore, Defendant Paris Packaging, Inc.’s Motion to Dismiss (Dkt. 10), Defendant Paris Packaging, Inc.’s Motion to Dismiss Baker’s Amended Complaint (Dkt. 37), Defendant Paris Packaging, Inc.’s Motion to Dismiss Baker’s Second Amended Complaint (Dkt. 39) should be GRANTED.
Defendant Liberty Mutual
*2 Defendant Liberty Mutual Insurance Company’s Motion to Dismiss (Dkt. 11), Defendant Liberty Mutual Insurance Company’s Supplemental Motion to Dismiss (Dkt. 36), and Defendant Liberty Mutual Insurance Company’s Second Supplemental Motion to Dismiss (Dkt. 40) should also be GRANTED. There is no allegation that Plaintiff was employed by Liberty Mutual; thus, she has no Title VII claims against it. See, e.g., Muhammad v. Dallas Co. Cmty. Supervision & Corrs. Dep’t, 479 F.3d 377 (5th Cir. 2007). Since Title VII is the apparent statutory basis for Plaintiff’s claims against Liberty Mutual in this suit, they should be dismissed. As to her allegations regarding the failure to pay worker’s compensation benefits in violation of the Texas Workers’ Compensation Act, such claims must be brought before the Texas Workers’ Compensation Commission prior to any suit here. See Gregson v. Zurich Am. Ins. Co., Defendant Jones
Defendant Jones argues that Plaintiff has not specifically addressed any acts or omissions of Defendant Jones in support of her claims against him. The Court agrees that, despite the Court’s clear order to detail the underlying facts supporting the elements of her claims, including the date and circumstances of the alleged injury, each defendant’s relationship to her claims, the statutory basis for her claims in federal court, and any alleged events of discrimination, Plaintiff has failed to allege any facts which state a claim in this Court against Defendant Jones. Moreover, assuming they are not barred by the statute of limitations, Plaintiff’s’ allegations of medical malpractice, without more, are not sufficient to give this Court jurisdiction. Therefore, Defendant Kyle Jones, M.D.’s Motion to Dismiss (Dkt. 26) and Defendant Kyle E. Jones, M.D.’s Supplemental Motion to Dismiss (Dkt. 41) should be GRANTED.
It is, therefore, recommended that Defendant Paris Packaging, Inc.’s Motion to Dismiss (Dkt. 10), Defendant Paris Packaging, Inc.’s Motion to Dismiss Baker’s Amended Complaint (Dkt. 37), Defendant Paris Packaging, Inc.’s Motion to Dismiss Baker’s Second Amended Complaint (Dkt. 39), Defendant Liberty Mutual Insurance Company’s Motion to Dismiss (Dkt. 11), Defendant Liberty Mutual Insurance Company’s Supplemental Motion to Dismiss (Dkt. 36), Defendant Liberty Mutual Insurance Company’s Second Supplemental Motion to Dismiss (Dkt. 40), Defendant Kyle Jones, M.D.’s Motion to Dismiss (Dkt. 26), and Defendant Kyle E. Jones, M.D.’s Supplemental Motion to Dismiss (Dkt. 41) should be GRANTED and that Plaintiff’s case be dismissed with prejudice, except as to any claims regarding violation of the Texas Workers’ Compensation Act which are dismissed without prejudice to Plaintiff’s exhaustion of her administrative remedies.
Within ten (10) days after service of the magistrate judge’s report, any party may serve and file written objections to the findings and recommendations of the magistrate judge. 28 U.S.C.A. § 636(b)(1)(c).
Failure to file written objections to the proposed findings and recommendations contained in this report within ten days after service shall bar an aggrieved party from de novo review by the district court of the proposed findings and recommendations and from appellate review of factual findings accepted or adopted by the district court except on grounds of plain error or manifest injustice. Thomas v. Arn, 474 U.S. 140, 148 (1985); Rodriguez v. Bowen, 857 F.2d 275, 276–77 (5th Cir. 1988).
Further, in light of this recommendation, the settlement conference currently scheduled for November 7, 2008 is hereby cancelled.