UNITED STATES DISTRICT COURT                            
                 DISTRICT OF MINNESOTA                               


Gary Mullins Jr.,                  Case No. 23-cv-1855 (JWB/DTS)          

Plaintiff,                                                           

v.                                 REPORT AND RECOMMENDATION              

Dr. Mark Morgan, et al.,                                                  

Defendants.                                                          


                     INTRODUCTION                                    
Pro se prisoner Plaintiff Gary Mullins Jr. sued the United States and several 
individuals  employed  by  the  Federal  Bureau  of  Prisons  alleging  state  law  medical 
malpractice under the Federal Tort Claims Act (FTCA) and constitutional violations under 
Bivens.  The  individual  Defendants,  Dr.  Mark  Morgan,  Physician’s  Assistant  Karin 
Parsons,  and  Nurse  Rachel  Wolfe,  move  to  dismiss  Mullins’s  claim  of  deliberate 
indifference under the Eighth Amendment. For the reasons stated below, the Court 
recommends Defendants’ motion be granted.                                 
                        FACTS1                                       
Mullins injured himself falling out of his bunk at FMC-Rochester on January 11, 
2020. Sec. Am. Compl. ¶ 12, Dkt. No. 11. That evening, a physician at FMC-Rochester 

1 The facts are drawn from the Second Amended Complaint and accepted as true. Gorog 
v. Best Buy Co., 

 (8th Cir. 2014). Defendants also submit hundreds of 
pages of medical records to support their motion. See Dkt. Nos. 58, 59. When deciding a 
motion to dismiss, “the court generally must ignore materials outside the pleadings.” 
Porous  Media  Corp.  v.  Pall  Corp.,  

  (8th  Cir.  1999).  Although 
documents  “necessarily  embraced  by  the  complaint”  are  not  matters  outside  the 
pleadings, Zean v. Fairview Health Servs., 

 (8th Cir. 2017), the medical 
records here are not sufficiently embraced by the Second Amended Complaint to be 
placed seven staples in Mullins’s forehead, closing a wound above his left eye. 

 ¶¶ 13–
15. This number of staples was documented in his medical records. Id. ¶ 16. 
When Mullins returned to the nurse’s station on January 18, 2020, to have the 
staples removed as advised, Nurse Wolfe told him she removed all staples from the 

wound. Id. ¶¶ 21–22. She also stated only five staples were present. Id. ¶¶ 22–23.  
In the following weeks and months, Mullins repeatedly inquired about the missing 
staples when the wound became swollen and painful and caused headaches. Id. ¶¶ 24-
25. Approximately four months after the initial staple removal, a nurse ordered imaging 
and uncovered the missing two staples under Mullins’s skin. Id. ¶¶ 26-27. At that time, 
Dr. Morgan and P.A. Parsons attempted to extract the staples but were only able to 
remove one. Id. ¶ 28. Mullins learned he would need surgery to remove the seventh staple 
because it had migrated too close to his eye. Id. ¶ 29. While awaiting surgery, Mullins 
claims he suffered from headaches and experienced fear and anxiety that he would lose 
his vision. Id. ¶ 33. The providers at FMC-Rochester did not attempt to track the location 

of the seventh staple while he awaited surgery. Id. ¶ 32. On April 16, 2021, fifteen months 
after the initial staple removal, Mullins had surgery at the Mayo Clinic to remove the 
seventh staple. Id. ¶¶ 29-30. Mullins was not informed of the reason for the delay in 
surgery. Id. ¶ 31.                                                        
Mullins claims the delay in removing the sixth and seventh staples caused past 
and  future  facial  disfigurement,  pain  and  irritation,  emotional  distress,  and 

considered at this early juncture. See, e.g., Hovind v. Bristol Place Corp., No. 08-cv-59, 

, at *5 (D. Minn. Oct. 24, 2008) (concluding that medical records were 
not necessarily embraced by the pleadings). Nor does the Court recommend converting 
Defendants’ motion to  dismiss  into a motion  for  summary  judgment  by  considering 
documents outside the pleadings.                                          
                           2                                         
embarrassment. Id. ¶¶ 34-36, 47. The delayed staple removal also allegedly caused him 
to incur past and future medical expenses. Id. ¶ 46.                      
Mullins filed the operative Second Amended Complaint in September 2023. Sec. 
Am. Compl. Count I is an FTCA claim brought against the United States of America. Id. 

¶¶ 37–49. Count II is a Bivens claim against Dr. Morgan, P.A. Parsons, and Nurse Wolfe. 
Id.  ¶¶  50–58.  In  Count  II,  Mullins  alleges  those  individual  Defendants  deliberately 
disregarded his serious medical needs in violation of the Eighth Amendment. Id. ¶ 54. 
Although Mullins’s Second Amended Complaint originally included a Count III, alleging 
medical malpractice under Minnesota law, id. ¶¶ 59–64, he later voluntarily dismissed 
that claim, see Dkt. Nos. 45, 66.                                         
                       ANALYSIS                                      
I.   Standard of Review                                                   
Federal Rule of Civil Procedure 12(b)(6) requires a complaint to plead sufficient 
facts, accepted as true, to state a claim for relief that is plausible on its face. Ashcroft v. 

Iqbal, 

 (2009); Bell Atl. Corp v. Twombly, 

 (2007). 
A complaint must provide more than “‘labels and conclusions’ or ‘a formulaic recitation of 
the  elements  of  a  cause  of  action.’”  Iqbal,  

  (quoting  Twombly, 

). Although a pro se complaint is liberally construed, it must still contain 
specific facts sufficient to support its legal conclusions. See Kaylor v. Fields, 

 (8th Cir. 1981). Thus, while a court accords deference to pro se pleadings, it 
will not assume facts that might support the plaintiff’s claim that the pro se plaintiff does 
not allege. Stone v. Harry, 

 (8th Cir. 2004).            

                           3                                         
II.  Deliberate Indifference                                              
Dr. Morgan, P.A. Parsons, and Nurse Wolfe, move to dismiss Mullins’s deliberate 
indifference claim for failure to state a claim. The Eighth Amendment provides: “Excessive 
bail  shall  not  be  required,  nor  excessive  fines  imposed,  nor  cruel  and  unusual 

punishments inflicted.” U.S. Const. amend. VIII. The Supreme Court has found that prison 
officials violate the Eighth Amendment’s prohibition of cruel and unusual punishment 
when they are deliberately indifferent to a prisoner’s serious medical needs. Estelle v. 
Gamble, 

 (1976). To state a claim for deliberate indifference under the 
Eighth Amendment, a plaintiff must plausibly allege “(1) an objectively serious medical 
need; and (2) the defendants actually knew of the medical need but were deliberately 
indifferent to it.” East v. Minnehaha Cnty., 

 (8th Cir. 2021) (quoting 
Jones v. Minn. Dep’t. of Corrs., 

 (8th Cir. 2008)). An objectively serious 
medical need “must be either obvious to the layperson or supported by medical evidence, 
like a physician’s diagnosis.” Aswegan v. Henry, 

 (8th Cir. 1995). 

“Deliberate  indifference  requires  more  than  negligence  and  is  ‘akin  to  criminal 
recklessness.’” Jenkins v. United States, No. 23-cv-3253, 

, at *4 (D. 
Minn. Mar. 4, 2024) (quoting Smith v. United States, No. 13-3277, 

, 
at *12 (D. Minn. Jan. 22, 2015)); see also Minnehaha Cnty., 

.  
A.   Nurse Wolfe                                                     
Mullins alleges that Nurse Wolfe attended Mullins on January 18, 2020, removing 
five of the seven staples in his head. Even assuming that removal of the remaining two 
staples was a serious medical need, Mullins fails to allege that Nurse Wolfe actually knew 
of the two remaining staples. To the contrary, Mullins alleges that Nurse Wolfe “informed 
                           4                                         
[him] she had removed all staples from his wound.” Sec. Am. Compl. ¶ 21; see also id. 
¶ 22 (“Nurse Wolfe stated that only five staples were present.”). This is consistent with 
other allegations in the Second Amended Complaint, such as Mullins’s claim that Bureau 
of Prisons medical staff failed to provide competent medical care by “failing to verify the 

number of staples placed” and “failing to consult Mr. Mullins’s medical records for that 
information.” Id. ¶ 43. Without factual allegations sufficient to plausibly allege Nurse Wolfe 
knew of the two remaining staples—the alleged serious medical need—Mullins fails to 
state a claim for deliberate indifference claim against Nurse Wolfe. Phillips v. Jasper Cnty. 
Jail, 

 (8th Cir. 2006) (“Deliberate indifference requires a showing that 
the medical provider knew of and disregarded a serious medical need.”). Alleging that 
Nurse Wolfe was careless or negligent by failing to verify the number of staples removed 
does not pass muster. Dulany v. Carnahan, 

 (8th Cir. 1997) (“Mere 
negligence or medical malpractice . . . are insufficient to rise to a constitutional violation.”). 
Therefore, the Court recommends that Count II be dismissed against Nurse Wolfe without 

prejudice.2                                                               
B.   P.A. Parsons                                                    
The same result follows for Mullins’s deliberate indifference claim against P.A. 
Parsons. The only factual allegation regarding P.A. Parsons in the Second Amended 
Complaint is that she helped Dr. Morgan retrieve one of the two remaining staples. Sec. 


2 Although Mullins offers additional facts in his response, see, e.g., Pl.’s Resp. at 13, 
Dkt. No. 77 (“Later, R.N. Wolfe reviewed Mr. Mullins medical notes.”), these facts are not 
considered because Mullins’s “inclusion of such additional detail in his response to the 
motion to dismiss does not technically amend the complaint.” Mack v. Equifax Info. Servs. 
LLC, No. 20-cv-557, 

, at *3 (D. Minn. May 11, 2020), R. & R. adopted 
by No. 

 (D. Minn. June 8, 2020).                           
                           5                                         
Am. Compl. ¶ 28. Although Mullins alleges that his surgery to remove the seventh staple 
was delayed 15 months, id. ¶ 30, he does not plausibly allege that any of this delay was 
attributable to P.A. Parsons. He does not allege, for example, that P.A. Parsons was 
responsible for scheduling the follow-up appointment. Nor does he allege she knew of the 

delay. Absent some additional factual content describing a connection between P.A. 
Parsons  and  the  15-month  delay,  concluding  that  P.A.  Parsons  was  deliberately 
indifferent to Mullins’s need to remove the seventh staple would be speculative (again, 
assuming that removal of the seventh staple was an objectively serious medical need). 
Accordingly, Mullins fails to plausibly allege an Eighth Amendment claim against P.A. 
Parsons. See Cannon v. Dehner, 

, 589–90 (8th Cir. 2024) (noting “no 
evidence that [the plaintiff] had any further contact with [the nurse] regarding the injured 
wrist, or any involvement in the subsequent alleged treatment inadequacies and delays”); 
Kenyon v. Dooley, 

 (8th Cir. 2015) (per curiam) (“[N]othing in the 
record shows that any individual defendant was responsible for the alleged delays after 

surgery.”); Jenkins v. United States, No. 23-cv-3253, 

, at *4 (D. Minn. 
Mar. 4, 2024) (“[Plaintiff] also needed to plead that specific Defendants knew about her 
condition and deliberately disregarded her needs, which she failed to do.”); Schaub v. 
VonWald, 

 (8th Cir. 2011) (“Deliberate indifference must be measured 
by the official’s knowledge at the time in question.”). Therefore, the Court recommends 
that Count II be dismissed against P.A. Parsons without prejudice.3       



3 Mullins’s additional facts regarding P.A. Parsons are likewise not considered. 
                           6                                         
C.   Dr. Morgan                                                      
Mullins voluntarily moved to dismiss his deliberate indifference claim against Dr. 
Morgan, although his motion does not identify whether he is requesting dismissal with or 
without prejudice. Dkt. Nos. 76, 80. Dr. Morgan agrees the Court should dismiss Count II 

against him, but requests the claim be dismissed with prejudice. Defs.’ Reply at 1 n.1, 
Dkt. No. 78. Mullins has not responded to Dr. Morgan’s request. See generally Docket. 
When Mullins previously moved to dismiss Count III, he requested “that this Court dismiss 
Count Three of this lawsuit without prejudice.” Pl.’s Mot. to Dismiss Count Three Without 
Prejudice, Dkt. No. 45. This suggests that Mullins could have, but did not, request Count II 
be dismissed without prejudice. Considering the absence of an objection to with-prejudice 
dismissal in conjunction with Mullins’s previous request for without-prejudice dismissal, 
the Court recommends that Count II be dismissed against Dr. Morgan with prejudice.4 
                   RECOMMENDATION                                    

For the reasons set forth above, the Court RECOMMENDS that:          
1.   Defendants’ Motion to Dismiss (Dkt. No. 53) be GRANTED;         
2.   Plaintiff’s Motions to Dismiss Dr. Morgan from Count II (Dkt. Nos. 76, 80) 
be GRANTED;                                                               
3.   Plaintiff’s claim of deliberate indifference against Defendants Karin Parsons 
and Nurse Rachel Wolfe be DISMISSED without prejudice; and                




4 Although Dr. Morgan moved to dismiss under Rules 12(b)(1) and 12(b)(6), his motion 
is mooted by Mullins’s voluntary motion to dismiss.                       
                           7                                         
4.   Plaintiff’s claim of deliberate indifference against Defendant Mark Morgan 
be DISMISSED with prejudice.                                              

Dated: December 30, 2024           ____s/David T. Schultz_____            
                              DAVID T. SCHULTZ                       
                              U.S. Magistrate Judge                  


                        NOTICE                                       
Filing Objections: This Report and Recommendation is not an order or judgment of the 
District Court and is therefore not appealable directly to the Eighth Circuit Court of 
Appeals.                                                                  

Under Local Rule 72.2(b)(1), “a party may file and serve specific written objections to a 
magistrate judge’s proposed finding and recommendations within 14 days after being 
served a copy” of the Report and Recommendation. A party may respond to those 
objections  within  14  days  after  being  served  a  copy  of  the  objections.  See  Local 
Rule 72.2(b)(2). All objections and responses must comply with the word or line limits set 
forth in Local Rule 72.2(c).                                              






                           8                                         

             UNITED STATES DISTRICT COURT                            
                 DISTRICT OF MINNESOTA                               


Gary Mullins Jr.,                  Case No. 23-cv-1855 (JWB/DTS)          

Plaintiff,                                                           

v.                                 REPORT AND RECOMMENDATION              

Dr. Mark Morgan, et al.,                                                  

Defendants.                                                          


                     INTRODUCTION                                    
Pro se prisoner Plaintiff Gary Mullins Jr. sued the United States and several 
individuals  employed  by  the  Federal  Bureau  of  Prisons  alleging  state  law  medical 
malpractice under the Federal Tort Claims Act (FTCA) and constitutional violations under 
Bivens.  The  individual  Defendants,  Dr.  Mark  Morgan,  Physician’s  Assistant  Karin 
Parsons,  and  Nurse  Rachel  Wolfe,  move  to  dismiss  Mullins’s  claim  of  deliberate 
indifference under the Eighth Amendment. For the reasons stated below, the Court 
recommends Defendants’ motion be granted.                                 
                        FACTS1                                       
Mullins injured himself falling out of his bunk at FMC-Rochester on January 11, 
2020. Sec. Am. Compl. ¶ 12, Dkt. No. 11. That evening, a physician at FMC-Rochester 

1 The facts are drawn from the Second Amended Complaint and accepted as true. Gorog 
v. Best Buy Co., 

 (8th Cir. 2014). Defendants also submit hundreds of 
pages of medical records to support their motion. See Dkt. Nos. 58, 59. When deciding a 
motion to dismiss, “the court generally must ignore materials outside the pleadings.” 
Porous  Media  Corp.  v.  Pall  Corp.,  

  (8th  Cir.  1999).  Although 
documents  “necessarily  embraced  by  the  complaint”  are  not  matters  outside  the 
pleadings, Zean v. Fairview Health Servs., 

 (8th Cir. 2017), the medical 
records here are not sufficiently embraced by the Second Amended Complaint to be 
placed seven staples in Mullins’s forehead, closing a wound above his left eye. 

 ¶¶ 13–
15. This number of staples was documented in his medical records. Id. ¶ 16. 
When Mullins returned to the nurse’s station on January 18, 2020, to have the 
staples removed as advised, Nurse Wolfe told him she removed all staples from the 

wound. Id. ¶¶ 21–22. She also stated only five staples were present. Id. ¶¶ 22–23.  
In the following weeks and months, Mullins repeatedly inquired about the missing 
staples when the wound became swollen and painful and caused headaches. Id. ¶¶ 24-
25. Approximately four months after the initial staple removal, a nurse ordered imaging 
and uncovered the missing two staples under Mullins’s skin. Id. ¶¶ 26-27. At that time, 
Dr. Morgan and P.A. Parsons attempted to extract the staples but were only able to 
remove one. Id. ¶ 28. Mullins learned he would need surgery to remove the seventh staple 
because it had migrated too close to his eye. Id. ¶ 29. While awaiting surgery, Mullins 
claims he suffered from headaches and experienced fear and anxiety that he would lose 
his vision. Id. ¶ 33. The providers at FMC-Rochester did not attempt to track the location 

of the seventh staple while he awaited surgery. Id. ¶ 32. On April 16, 2021, fifteen months 
after the initial staple removal, Mullins had surgery at the Mayo Clinic to remove the 
seventh staple. Id. ¶¶ 29-30. Mullins was not informed of the reason for the delay in 
surgery. Id. ¶ 31.                                                        
Mullins claims the delay in removing the sixth and seventh staples caused past 
and  future  facial  disfigurement,  pain  and  irritation,  emotional  distress,  and 

considered at this early juncture. See, e.g., Hovind v. Bristol Place Corp., No. 08-cv-59, 

, at *5 (D. Minn. Oct. 24, 2008) (concluding that medical records were 
not necessarily embraced by the pleadings). Nor does the Court recommend converting 
Defendants’ motion to  dismiss  into a motion  for  summary  judgment  by  considering 
documents outside the pleadings.                                          
                           2                                         
embarrassment. Id. ¶¶ 34-36, 47. The delayed staple removal also allegedly caused him 
to incur past and future medical expenses. Id. ¶ 46.                      
Mullins filed the operative Second Amended Complaint in September 2023. Sec. 
Am. Compl. Count I is an FTCA claim brought against the United States of America. Id. 

¶¶ 37–49. Count II is a Bivens claim against Dr. Morgan, P.A. Parsons, and Nurse Wolfe. 
Id.  ¶¶  50–58.  In  Count  II,  Mullins  alleges  those  individual  Defendants  deliberately 
disregarded his serious medical needs in violation of the Eighth Amendment. Id. ¶ 54. 
Although Mullins’s Second Amended Complaint originally included a Count III, alleging 
medical malpractice under Minnesota law, id. ¶¶ 59–64, he later voluntarily dismissed 
that claim, see Dkt. Nos. 45, 66.                                         
                       ANALYSIS                                      
I.   Standard of Review                                                   
Federal Rule of Civil Procedure 12(b)(6) requires a complaint to plead sufficient 
facts, accepted as true, to state a claim for relief that is plausible on its face. Ashcroft v. 

Iqbal, 

 (2009); Bell Atl. Corp v. Twombly, 

 (2007). 
A complaint must provide more than “‘labels and conclusions’ or ‘a formulaic recitation of 
the  elements  of  a  cause  of  action.’”  Iqbal,  

  (quoting  Twombly, 

). Although a pro se complaint is liberally construed, it must still contain 
specific facts sufficient to support its legal conclusions. See Kaylor v. Fields, 

 (8th Cir. 1981). Thus, while a court accords deference to pro se pleadings, it 
will not assume facts that might support the plaintiff’s claim that the pro se plaintiff does 
not allege. Stone v. Harry, 

 (8th Cir. 2004).            

                           3                                         
II.  Deliberate Indifference                                              
Dr. Morgan, P.A. Parsons, and Nurse Wolfe, move to dismiss Mullins’s deliberate 
indifference claim for failure to state a claim. The Eighth Amendment provides: “Excessive 
bail  shall  not  be  required,  nor  excessive  fines  imposed,  nor  cruel  and  unusual 

punishments inflicted.” U.S. Const. amend. VIII. The Supreme Court has found that prison 
officials violate the Eighth Amendment’s prohibition of cruel and unusual punishment 
when they are deliberately indifferent to a prisoner’s serious medical needs. Estelle v. 
Gamble, 

 (1976). To state a claim for deliberate indifference under the 
Eighth Amendment, a plaintiff must plausibly allege “(1) an objectively serious medical 
need; and (2) the defendants actually knew of the medical need but were deliberately 
indifferent to it.” East v. Minnehaha Cnty., 

 (8th Cir. 2021) (quoting 
Jones v. Minn. Dep’t. of Corrs., 

 (8th Cir. 2008)). An objectively serious 
medical need “must be either obvious to the layperson or supported by medical evidence, 
like a physician’s diagnosis.” Aswegan v. Henry, 

 (8th Cir. 1995). 

“Deliberate  indifference  requires  more  than  negligence  and  is  ‘akin  to  criminal 
recklessness.’” Jenkins v. United States, No. 23-cv-3253, 

, at *4 (D. 
Minn. Mar. 4, 2024) (quoting Smith v. United States, No. 13-3277, 

, 
at *12 (D. Minn. Jan. 22, 2015)); see also Minnehaha Cnty., 

.  
A.   Nurse Wolfe                                                     
Mullins alleges that Nurse Wolfe attended Mullins on January 18, 2020, removing 
five of the seven staples in his head. Even assuming that removal of the remaining two 
staples was a serious medical need, Mullins fails to allege that Nurse Wolfe actually knew 
of the two remaining staples. To the contrary, Mullins alleges that Nurse Wolfe “informed 
                           4                                         
[him] she had removed all staples from his wound.” Sec. Am. Compl. ¶ 21; see also id. 
¶ 22 (“Nurse Wolfe stated that only five staples were present.”). This is consistent with 
other allegations in the Second Amended Complaint, such as Mullins’s claim that Bureau 
of Prisons medical staff failed to provide competent medical care by “failing to verify the 

number of staples placed” and “failing to consult Mr. Mullins’s medical records for that 
information.” Id. ¶ 43. Without factual allegations sufficient to plausibly allege Nurse Wolfe 
knew of the two remaining staples—the alleged serious medical need—Mullins fails to 
state a claim for deliberate indifference claim against Nurse Wolfe. Phillips v. Jasper Cnty. 
Jail, 

 (8th Cir. 2006) (“Deliberate indifference requires a showing that 
the medical provider knew of and disregarded a serious medical need.”). Alleging that 
Nurse Wolfe was careless or negligent by failing to verify the number of staples removed 
does not pass muster. Dulany v. Carnahan, 

 (8th Cir. 1997) (“Mere 
negligence or medical malpractice . . . are insufficient to rise to a constitutional violation.”). 
Therefore, the Court recommends that Count II be dismissed against Nurse Wolfe without 

prejudice.2                                                               
B.   P.A. Parsons                                                    
The same result follows for Mullins’s deliberate indifference claim against P.A. 
Parsons. The only factual allegation regarding P.A. Parsons in the Second Amended 
Complaint is that she helped Dr. Morgan retrieve one of the two remaining staples. Sec. 


2 Although Mullins offers additional facts in his response, see, e.g., Pl.’s Resp. at 13, 
Dkt. No. 77 (“Later, R.N. Wolfe reviewed Mr. Mullins medical notes.”), these facts are not 
considered because Mullins’s “inclusion of such additional detail in his response to the 
motion to dismiss does not technically amend the complaint.” Mack v. Equifax Info. Servs. 
LLC, No. 20-cv-557, 

, at *3 (D. Minn. May 11, 2020), R. & R. adopted 
by No. 

 (D. Minn. June 8, 2020).                           
                           5                                         
Am. Compl. ¶ 28. Although Mullins alleges that his surgery to remove the seventh staple 
was delayed 15 months, id. ¶ 30, he does not plausibly allege that any of this delay was 
attributable to P.A. Parsons. He does not allege, for example, that P.A. Parsons was 
responsible for scheduling the follow-up appointment. Nor does he allege she knew of the 

delay. Absent some additional factual content describing a connection between P.A. 
Parsons  and  the  15-month  delay,  concluding  that  P.A.  Parsons  was  deliberately 
indifferent to Mullins’s need to remove the seventh staple would be speculative (again, 
assuming that removal of the seventh staple was an objectively serious medical need). 
Accordingly, Mullins fails to plausibly allege an Eighth Amendment claim against P.A. 
Parsons. See Cannon v. Dehner, 

, 589–90 (8th Cir. 2024) (noting “no 
evidence that [the plaintiff] had any further contact with [the nurse] regarding the injured 
wrist, or any involvement in the subsequent alleged treatment inadequacies and delays”); 
Kenyon v. Dooley, 

 (8th Cir. 2015) (per curiam) (“[N]othing in the 
record shows that any individual defendant was responsible for the alleged delays after 

surgery.”); Jenkins v. United States, No. 23-cv-3253, 

, at *4 (D. Minn. 
Mar. 4, 2024) (“[Plaintiff] also needed to plead that specific Defendants knew about her 
condition and deliberately disregarded her needs, which she failed to do.”); Schaub v. 
VonWald, 

 (8th Cir. 2011) (“Deliberate indifference must be measured 
by the official’s knowledge at the time in question.”). Therefore, the Court recommends 
that Count II be dismissed against P.A. Parsons without prejudice.3       



3 Mullins’s additional facts regarding P.A. Parsons are likewise not considered. 
                           6                                         
C.   Dr. Morgan                                                      
Mullins voluntarily moved to dismiss his deliberate indifference claim against Dr. 
Morgan, although his motion does not identify whether he is requesting dismissal with or 
without prejudice. Dkt. Nos. 76, 80. Dr. Morgan agrees the Court should dismiss Count II 

against him, but requests the claim be dismissed with prejudice. Defs.’ Reply at 1 n.1, 
Dkt. No. 78. Mullins has not responded to Dr. Morgan’s request. See generally Docket. 
When Mullins previously moved to dismiss Count III, he requested “that this Court dismiss 
Count Three of this lawsuit without prejudice.” Pl.’s Mot. to Dismiss Count Three Without 
Prejudice, Dkt. No. 45. This suggests that Mullins could have, but did not, request Count II 
be dismissed without prejudice. Considering the absence of an objection to with-prejudice 
dismissal in conjunction with Mullins’s previous request for without-prejudice dismissal, 
the Court recommends that Count II be dismissed against Dr. Morgan with prejudice.4 
                   RECOMMENDATION                                    

For the reasons set forth above, the Court RECOMMENDS that:          
1.   Defendants’ Motion to Dismiss (Dkt. No. 53) be GRANTED;         
2.   Plaintiff’s Motions to Dismiss Dr. Morgan from Count II (Dkt. Nos. 76, 80) 
be GRANTED;                                                               
3.   Plaintiff’s claim of deliberate indifference against Defendants Karin Parsons 
and Nurse Rachel Wolfe be DISMISSED without prejudice; and                




4 Although Dr. Morgan moved to dismiss under Rules 12(b)(1) and 12(b)(6), his motion 
is mooted by Mullins’s voluntary motion to dismiss.                       
                           7                                         
4.   Plaintiff’s claim of deliberate indifference against Defendant Mark Morgan 
be DISMISSED with prejudice.                                              

Dated: December 30, 2024           ____s/David T. Schultz_____            
                              DAVID T. SCHULTZ                       
                              U.S. Magistrate Judge                  


                        NOTICE                                       
Filing Objections: This Report and Recommendation is not an order or judgment of the 
District Court and is therefore not appealable directly to the Eighth Circuit Court of 
Appeals.                                                                  

Under Local Rule 72.2(b)(1), “a party may file and serve specific written objections to a 
magistrate judge’s proposed finding and recommendations within 14 days after being 
served a copy” of the Report and Recommendation. A party may respond to those 
objections  within  14  days  after  being  served  a  copy  of  the  objections.  See  Local 
Rule 72.2(b)(2). All objections and responses must comply with the word or line limits set 
forth in Local Rule 72.2(c).                                              






                           8