United States District Court, N.D. Iowa, Central Division
ESTATE OF DUSTYN HENRY, through Administrator Laura Barrett, BRENDA HENRY, RANDY HENRY, and B.H., through Next Friend Laura Barrett, Plaintiffs,
MIKE SCHWAB, individually and in his official capacity, and STAE OF IOWA, Defendants.
MEMORANDUM OPINION AND ORDER
Williams United States District Judge.
matter is before the Court on defendants Mike Schwab and the
State of Iowa's (“defendants”) Partial Motion
to Dismiss. (Doc. 27). On July 12, 2019, the Estate of Dustyn
Henry, along with Brenda Henry, Randy Henry, and B.H.
(“plaintiffs”) filed their Second Amended
Complaint and Jury Demand (“complaint”) against
defendants. (Doc. 25). Defendants timely moved to dismiss
Counts II-IV of the complaint pursuant to Federal Rule of
Civil Procedure12(b)(1), or in the alternative, Federal Rule
of Civil Procedure 12(b)(6). (Doc. 27). Plaintiffs timely
resisted the motion (Doc. 28), and defendants timely filed a
reply (Doc. 29). For the following reasons, defendants'
motion is granted.
Court, under Rule 12(b), accepts plaintiffs' factual
allegations in the complaint as true for purposes of this
motion. The plaintiffs in this case are the Estate of Dustyn
Henry (“decedent”), decedent's mother and
father, Brenda Henry and Randy Henry, and B.H.,
decedent's minor child. (Doc. 25, at 1-2). Defendant Mike
Schwab was decedent's supervising probation or parole
officer while plaintiff resided at the Waterloo Residential
Facility (“facility”) by order of the Iowa
District Court for Buchanan County. (Id., at 2, 6).
The State of Iowa (“State”) runs the facility
through the First Judicial District Department of
Correctional Services. (Id., at 2).
had a history of mental health and substance abuse issues in
the years leading up to his death. (Id., at 2-3).
Defendants knew about, or had access to information
regarding, decedent's history of substance abuse and
mental health issues while he resided at the facility.
(Id., at 6). While at the facility decedent was
terminated from his job, which caused decedent to lose his
health insurance. (Id., at 6-7). As a result of
decedent's loss of insurance, decedent's
prescriptions for anti-anxiety and anti-depression medication
stopped being filled. (Id.). Defendants took no
action to ensure that decedent got his medications after
decedent lost his insurance. (Id., at 7). Defendants
knew decedent was using controlled substances while residing
at the treatment facility, and defendants failed to follow
their normal policy of taking residents who were intoxicated
to the nearby jail to detox. (Id.).
December 15, 2016, Mr. Schwab filed a Report of Violation of
the terms of decedent's probation due to decedent's
loss of employment and use of controlled substances.
(Id., at 8). The Report of Violation sought to
revoke decedent's probation and have decedent sent to
prison. (Id.). Decedent was “despondent”
when he learned of the Report of Violation. (Id.).
Despite knowledge of decedent's mental health issues and
lack of prescribed medication, defendants took “no
steps to keep [decedent] from committing self-harm after
informing him of the Report of Violation.”
(Id.). On December 16, 2016, decedent committed
suicide by hanging himself from the clothes hanger rack in
his room. (Id., at 8-9). Defendants knew that the
clothes hanger racks in the facility were capable of
supporting a person's weight without collapsing due to
prior suicides by hanging in the facility. (Id., at
9). Defendants failed to utilize widely available clothes
hanging equipment designed to prevent suicide by hanging.
(Id.). Plaintiffs assert various claims for money
damages resulting from decedent's death. (Id.,
brought a four-count complaint alleging: 1) civil rights
violations under 42 U.S.C. § 1983; 2) wrongful death -
negligence; 3) parental loss of child consortium; and 4)
child loss of parental consortium. (Id., at 9-14).
In response, defendants moved to dismiss Counts II-IV based
on lack of subject-matter jurisdiction under Federal Rule of
Civil Procedure 12(b)(1), and in the alternative, for failure
to state a claim upon which relief can be granted under
Federal Rule of Civil Procedure 12(b)(6). (Doc. 27, at 1).
Federal Rule of Civil Procedure 12(b)(1)
of sovereign immunity fall squarely within the province of a
12(b)(1) motion because, if immunity is present for a claim,
the Court lacks subject matter jurisdiction over that
claim.” Mills v. Iowa Bd. of Regents, 770
F.Supp.2d 986, 990 (S.D. Iowa 2011) (citing Mumford v.
Godfried, 52 F.3d 756, 758 (8th Cir. 1995); Feltes
v. State, 385 N.W.2d 544, 546-47 (Iowa 1986)). Thus, the
Court will analyze defendants' motion as one to dismiss
for lack of subject-matter jurisdiction under Rule 12(b)(1),
not as a motion to dismiss for failure to state a claim under
Rule of Civil Procedure 12(b)(1) provides that a party may
assert the defense of lack of subject-matter jurisdiction by
motion and that motion “must be made before pleading if
a responsive pleading is allowed.” The Eighth Circuit
Court of Appeals has explained that:
A court deciding a motion under Rule 12(b)(1) must
distinguish between a “facial attack” and a
“factual attack.” In the first instance, the
court restricts itself to the face of the pleadings . . . and
the non-moving party receives the same protections as it
would defending against a motion brought under Rule 12(b)(6).
The general rule is that a complaint should not be dismissed
“unless it appears beyond doubt that the plaintiff can
prove no set of facts in support of his claim which would
entitle him to relief.” In a factual attack, the court
considers matters outside the pleadings . . . and the
non-moving party does not have the benefit of 12(b)(6)
Osborn v. United States, 918 F.2d 724, 729 n.6 (8th
Cir. 1990) (citations omitted). “[A] facial attack [is]
one ‘based on the complaint alone, or on the complaint
supplemented by undisputed facts evidenced in the
record.'” Younie v. City of Hartley, 97
F.Supp.3d 1058, 1060 (N.D. Iowa 2015) (quoting
Osborn, 918 F.2d at 730). Defendants' Partial
Motion to Dismiss presents a facial attack on Counts II-IV.
evaluating a facial attack on jurisdiction, the court must
“consider only the materials that are
‘necessarily embraced by the pleadings and exhibits
attached to the complaint.'” Carlsen v.
GameStop, Inc., 833 F.3d 903, 908 (8th Cir. 2016)
(quoting Cox v. Mortgage Elec. Registration Sys.,
Inc.685 F.3d 663, 668 (8th Cir. 2012). The 12(b)(6)
protections applicable to facial attacks under Rule 12(b)(1)
include “accepting all the factual allegations of the