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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

TYLER DIVISION

CHRISTIAN BLANCHARD,

Plaintiff,

v. 

DEPARTMENT OF HEALTH AND 

HUMAN SERVICES,

Defendants.

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CIVIL ACTION NO. 6:23-CV-00375-JDK

REPORT AND RECOMMENDATION OF

UNITED STATES MAGISTRATE JUDGE

Plaintiff Christian Blanchard (“Plaintiff”), proceeding pro se, filed the above captioned 

lawsuit on July 27, 2023. Because Plaintiff requested to proceed in forma pauperis, (Doc. No. 4), 

the court has reviewed the pleadings in this action pursuant to 28 U.S.C. § 1915(e)(2) and has 

determined that, for the reasons stated herein, the allegations fail to state a claim upon which relief 

may be granted. See 28 U.S.C. § 1915(e)(2). Accordingly, the court RECOMMENDS that this 

case be DISMISSED WITH PREJUDICE.

BACKGROUND

Plaintiff filed an original complaint against the Department of Health and Human Services 

(“DHHS”) on July 28, 2023. (Doc. No. 1). The case was referred to the undersigned United States 

Magistrate Judge for findings of fact, conclusions of law, and recommendations for the disposition 

of the case. (Doc. No. 2). In the original complaint, Plaintiff stated:

I was repeatedly denied caregiver services that I desperately needed due to errors 

and/or incomplete evaluation of my case by a nurse that led to a denial of service. 

As a result, I suffered massive physical and emotional damage that was easily

preventable with the proper care. 

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On August 18, 2023, the court issued an order stating that Plaintiff’s original complaint 

failed to meet the pleading standards in Federal Rule of Civil Procedure 8 and ordering Plaintiff 

to file an amended complaint that complies with Rule 8 within thirty days of receipt of the court’s 

order. (Doc. No. 6, at 2–3). 

Plaintiff filed an amended complaint on September 28, 2023. (Doc. No. 10). The amended 

complaint states that Plaintiff has been disabled for over seven years and was “supposed to be 

provided a caregiver in [Plaintiff’s] home through Medicaid Services via the DHHS.” Id. Plaintiff 

alleges that DHHS has failed to provide an at-home caregiver because of “mistakes made along 

the way by [DHHS] and their representatives,” and that this failure “left [Plaintiff] in a dangerous 

situation as a result which led to this incident.” Id. Plaintiff claims that an at-home caregiver 

“would have noticed that [Plaintiff] had altered mental status and at least would have been able to 

report it to the provider company to hopefully get [Plaintiff] the help that [she] needed or at least

would have avoided the situation [she] ended up . . . in.” Id. 

LEGAL STANDARD

28 U.S.C. § 1915(e)(2) provides that: 

Notwithstanding any filing fee, or any portion thereof, that may have been paid, the 

court shall dismiss the case at any time if the court determines that—

(A) the allegation of poverty is untrue; or

(B) the action or appeal—

(i) is frivolous or malicious;

(ii) fails to state a claim on which relief may be granted; or

(iii) seeks monetary relief against a defendant who is immune from such 

relief.

A complaint fails to state a claim upon which relief may be granted where it does not allege 

sufficient facts which, taken as true, state a claim which is plausible on its face and thus does not 

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raise a right to relief above the speculative level. See Montoya v. FedEx Ground Packaging Sys. 

Inc., 614 F.3d 145, 149 (5th Cir. 2010) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 

(2007)); see also Fed. R. Civ. P. 8 (To state a plausible claim for relief, a pleading must contain 

(1) “a short and plain statement of the grounds for the court’s jurisdiction,” (2) “a short and plain 

statement of the claim showing that the pleader is entitled to relief,” and (3) “a demand for the 

relief sought”). A claim has factual plausibility when the pleaded factual content allows the court 

to draw reasonable inferences that the defendant is liable for the misconduct alleged. See Hershey 

v. Energy Transfer Partners, L.P., 610 F.3d 239, 245 (5th Cir. 2010); Ashcroft v. Iqbal, 556 U.S. 

662, 678 (2009). A pleading offering “labels and conclusions” or a “formulaic recitation of the 

elements of a cause of action” will not suffice, nor does a complaint which provides only naked 

assertions that are devoid of further factual enhancement. Iqbal, 556 U.S. at 678.

The pleading of a pro se plaintiff is to be “liberally construed” and is “held to less stringent 

standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) 

(quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). Nevertheless, even with pro se litigants, 

“conclusory allegations or legal conclusions masquerading as factual conclusions” are not 

sufficient for a well-pleaded complaint. Taylor v. Books A Million, Inc., 296 F.3d 376, 378 (5th 

Cir. 2002) (quoting S. Christian Leadership Conf. v. S. Ct. of State of La., 252 F.3d 781, 786 (5th 

Cir. 2001)). If the facts alleged in a complaint do not permit the court to infer more than the mere 

possibility of misconduct, a plaintiff has not shown entitlement to relief. See Rios v. City of Del 

Rio, Tex., 444 F.3d 417, 421 (5th Cir. 2006).

DISCUSSION

On August 18, 2023, the court put Plaintiff on notice that her complaint failed to plead 

facts which, taken as true, state a claim which is plausible on its face. (Doc. No. 6, at 1). The court 

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noted, for instance, that Plaintiff had not alleged that DHHS was providing her the services that 

were allegedly denied or that she was the intended beneficiary of any such services. Id. at 3. 

Because Plaintiff is proceeding pro se, the court gave her an opportunity to amend her original 

complaint to address these deficiencies. See Eason v. Thaler, 14 F.3d 8 (5th Cir. 1994). Upon 

review of the amended complaint, the court finds that Plaintiff has still failed to comply with Rule 

8 as previously ordered. 

Plaintiff’s amended complaint does not cite any specific statutes or types of claims for 

relief. However, in construing her complaint liberally, the court construes Plaintiff’s allegations to 

be that DHHS and/or its employees acted negligently in failing to provide at-home caregiver 

services as part of Plaintiff’s Medicaid benefits. See (Doc. No. 10). 28 U.S.C. § 1346(a) generally 

bars civil tort actions against the Federal Government. Thus, to the extent Plaintiff is claiming 

DHHS itself committed negligence, her claims are barred by §1346. There is an exception for 

claims resulting from the negligence of Federal Government employees while acting within the 

scope of their employment. Id. § 1346(b)(1). But Plaintiff doesn’t plead facts which plausibly state 

a negligence claim against any DHHS employees either. Thus, Plaintiff’s claim for negligence 

cannot proceed before this court. 

Moreover, even if Plaintiff had alleged facts to permit her to proceed with her negligence 

claim in federal court, her claim would still be subject to dismissal as she has not adequately 

pleaded the elements of a negligence claim. Under the FTCA, federal courts apply “the law of the 

place where the act or omission occurred.” Id.; see also Charles v. United States, 15 F.3d 400, 403

(5th Cir. 1994). Because Plaintiff’s claims relate to at-home caregiver services and Plaintiff is 

domiciled in Texas, the court will assume that the acts or omissions alleged in the amended 

complaint primarily occurred in Texas. Thus, Texas negligence law applies. “To prevail on a 

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[Texas] common law negligence claim, a plaintiff must be able to prove three elements: (1) a legal 

duty owed by one person to another; (2) a breach of that duty; and (3) damage proximately caused 

by the breach.” Gann v. Anheuser-Busch, Inc., 394 S.W.3d 83, 88 (Tex. App.—El Paso 2012, no 

pet.). 

Here, Plaintiff alleges that “DHHS had a duty to act” because she is “a client of theirs.” 

(Doc. No. 10). But she does not allege facts suggesting this relationship might give rise to a “duty 

to act.” She does not, for instance, explain why she is entitled to an at-home caregiver or how that

creates a duty for DHHS. Plaintiff also fails to allege facts regarding any injury or how damages 

came about. The amended complaint references a “dangerous situation” and an “incident,” but 

fails to factually describe the “incident” or how it resulted in injury. Id. Indeed, the amended 

complaint fails to identify any injuries resulting from the alleged misconduct or to request relief 

from the court at all. Id. Even construing Plaintiff’s pro se complaint liberally, there only appears 

to be conclusory allegations of some indistinct misconduct by DHHS and/or some unknown 

employee(s). See Taylor, 296 F.3d at 378. Thus, Plaintiff’s amended complaint fails to sufficiently 

plead facts which state a plausible claim for negligence under Texas law. See Montoya, 614 F.3d 

at 149; Gann, 394 at 88.

Traditionally, district courts are required to permit a pro se plaintiff an opportunity to 

amend her complaint or claim before dismissing the case. However, as Plaintiff has already been 

given an opportunity to amend and has pleaded her “best case,” any further amendment would be 

futile. See Norman v. Tex. Court of Criminal Appeals, 582 F. App’x 430, 431 (Mem) (5th Cir. 

2014) (unpublished); Brewster v. Dretke, 587 F.3d 764, 767–68 (5th Cir. 2009). Therefore, the 

court declines to afford Plaintiff an additional opportunity to amend her complaint. Plaintiff’s 

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complaint should be dismissed, with prejudice, for failure to state a claim upon which relief can 

be granted. 

CONCLUSION

For the reasons stated above, the court RECOMMENDS that that Plaintiff’s claims be

DISMISSED WITH PREJUDICE pursuant to 28 U.S.C. § 1915(e)(2) for failure to state a claim 

upon which relief can be granted.

Within 14 days after receipt of the Magistrate Judge’s Report, any party may serve and 

file written objections to the findings and recommendations contained in this Report. A party’s 

failure to file written objections to the findings, conclusions and recommendations contained in 

this Report within fourteen days after being served with a copy shall bar that party from de novo

review by the District Judge of those findings, conclusions and recommendations and, except on 

grounds of plain error, from appellate review of unobjected-to factual findings and legal 

conclusions accepted and adopted by the District Court. Douglass v. United States Auto. Ass’n, 79 

F.3d 1415, 1430 (5th Cir. 1996) (en banc), superseded by statute on other grounds, 28 U.S.C. § 

636(b)(1) (extending the time to file objections from ten to fourteen days).

So ORDERED and SIGNED this 3rd day of October, 2023.

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