Glenn v. Myers et al

Filing 103

MEMORANDUM OPINION & ORDER, MHM's 90 Motion for Summary Judgment is DENIED without prejudice as set out. Unless Plf has already conducted discovery, Plf is ORDERED to do so as soon as possible. MHM's 90 Motion for Partial Judgment on t he Pleadings is GRANTED w/respect to Plf's § 1983 claim (Count 2) & DENIED w/respect to Plf's state law claims (Counts 3 & 5) as set out. Attny's fees & costs are not warranted at this time. Signed by Senior Judge Callie V. S. Granade on 6/7/18. (tot)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
AGNES GLENN, in her capacity as
the personal representative of the
estate of Roderick Darius Rayshon
Bolton, deceased,
Plaintiff,
vs.
WALTER MYERS, et al.,

)
)
)
)
)
)
)
) CIVIL ACTION NO. 17-0194-CG-N
)
)

Defendants.
MEMORANDUM OPINION AND ORDER
This matter is before the Court on Defendant, MHM Correctional Services,
Inc.’s (“MHM”) Motion for Summary Judgment or alternatively, a partial judgment
on the pleadings (Doc. 90), Plaintiff’s opposition (Doc. 92), and MHM’s reply (Doc.
93). For the reasons explained below, the Court finds that MHM’s motion for
summary judgment should be DENIED as premature. Further, MHM’s Motion for
Partial Judgement on the Pleadings is due to be GRANTED with respect to
Plaintiff’s § 1983 claim (Count 2) and DENIED with respect to Plaintiff’s state law
claims (Count 3 and 5).
FACTUAL AND PROCEDURAL BACKGROUND
This action arises from an incident at Holman Correctional Facility
(“Holman”) on September 12, 2015, wherein Roderick Bolton (“Bolton”), an inmate,
committed suicide. (Doc. 75, generally). Bolton was a practicing Muslim who prior
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to September 12, 2015, was involved in a number of instances resulting in his being
punished by being placed in segregation for insubordination and/or failure to follow
direct orders as a result of his refusal to shave, which he maintained was required
by his religious beliefs. (Id. at 6-9). One of these instances occurred on September
11, 2015, which resulted in Bolton being placed in segregation at approximately 9
a.m. (Id. at 10). Plaintiff alleges that following his placement in segregation and
prior to his suicide, Bolton informed Defendants, including Shelia Brown (“Brown”)
that he was having suicidal thoughts and ideation. Plaintiff’s Complaint also
identifies numerous other individuals who were allegedly in contact with or present
before, during, or after Bolton’s death. The individuals identified in Plaintiff’s
Complaint are allegedly employed by Corizon Health Inc., Corizon, LLC
(hereinafter collectively “Corizon”), the Alabama Department of Corrections
(“ADOC”), or MHM.1
On May 3, 2017, Plaintiff filed this action against fifteen Defendants (Doc. 1)
and has since amended her complaint three times resulting in this action now being
pending against twenty named Defendants, including MHM (Doc. 75). The Fourth
Amended Complaint alleges claims against MHM for a violation of Bolton’s Eighth
Amendment rights pursuant to 42 U.S.C. § 1983, and negligence and wantonness

The remainder of the facts leading up to and following Bolton’s death are not
pertinent to the limited scope of Defendant MHM’s motion which addresses only the
claims against MHM via the conduct of Brown and/or its other supervisors and
employees and, therefore, the additional facts relating to other Defendants will not
be memorialized herein.
2
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under Alabama law based on the conduct of Brown and other MHM supervisors and
employees who were involved in the care of Bolton. (Doc. 75; Doc. 92 at 2, 4-5). The
claims against MHM stem from the fact that MHM provides mental health care
services to inmates incarcerated in facilities operated by the ADOC, including
Holman and the fact that Plaintiff was informed by another Defendant, Corizon
Health, that Brown was an employee of MHM. (Doc. 92 at 2, 4; Doc. 92-2).
On June 2, 2017, MHM filed its Answer denying that Brown was an
employee of MHM during the relevant period (Doc. 35; Doc. 92 at 6). Brown filed her
Answer the same day and denied being employed by either Corizon or MHM, but
did not identify her employer. (Doc. 33; Doc. 92 at 6). MHM reiterated that it did
not employ Brown to Plaintiff at the Rule of Parties Planning Meeting on July 28,
2017. The same day, Plaintiff sought permission from MHM to file an amended
complaint in order to correct a typo and in that correspondence acknowledged
MHM’s position, but again stated it needed time to perform due diligence on the
issue of Brown’s employment. (Doc. 92 at 7; Doc. 92-3). On August 3, 2017, counsel
for MHM sent Plaintiff’s counsel a letter restating there was no valid claim against
MHM because Brown had not been employed by MHM since 2012. (Doc. 92 at 6;
Doc. 90-4). Plaintiff responded to MHM that it would need to conduct discovery to
determine the correct parties before dismissing MHM voluntarily. (Doc. 92 at 6).
On August 21, 2017, MHM filed its Answer (Doc. 60) to the Second Amended
Complaint denying Brown was an employee during the relevant time and on August
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24, 2017, Brown filed her Answer repeating she was neither employed by Corizon or
MHM, but not identifying her employer (Doc. 61). On August 28, 2017, MHM
propounded its initial disclosures to Plaintiff which stated that Brown was
employed by ADOC. (Doc. 92-4). On September 4, 2017, Plaintiff’s counsel notified
counsel for all Defendants that they were still trying to determine which
Defendants belonged in the case, but that discovery was needed in order to do so.
(Doc. 92-5). Thereafter, Plaintiff discovered that additional medical records existed
and that additional medical personnel needed to be named as Defendants resulting
in Plaintiff filing another motion for leave to amend the complaint (Doc. 63) to add
those individuals. (Doc. 92 at 8). The Court granted the motion, and the Third
Amended Complaint was filed on September 20, 2017 (Doc. 65). On October 3,
2017, Plaintiff moved to again amend the complaint to correct the identity of one of
the individuals added in the Third Amended Complaint. (Doc. 92 at 9). MHM
answered the Third Amended Complaint on October 3, 2017, denying Brown was
employed during the relevant time. (Doc. 72). The Court then granted Plaintiff’s
motion for leave and the Fourth Amended Complaint was filed on October 16, 2017
(Doc. 75). On October 19, 2017, Brown answered the Fourth Amended Complaint
(Doc. 80) which stated that Brown was an employee of ADOC during the relevant
time period. MHM filed its answer to the Fourth Amended Complaint on October
30, 2017, again denying that it employed Brown during the relevant time period
(Doc. 82).
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On November 27, 2017, Plaintiff responded to MHM’s interrogatories
admitting that the only information Plaintiff had indicating that MHM was liable
under Counts 2, 3, and 5, was Bolton’s prison records which showed that he
consulted with Brown prior to his death, that MHM provided mental health services
to Holman prison in 2015, and that Brown was probably a MHM employee, despite
being told otherwise by MHM’s counsel. (Doc. 92 at 9-10). Plaintiff additionally
informed MHM that it would engage in discovery on the issue of employment and
would voluntarily dismiss the action against MHM if it was warranted. (Id.)
On December 14, 2017, MHM filed the instant Motion for Summary
Judgment. (Doc. 90). The parties have briefed the issues fully (see Doc. 92 and 93)
and the motion is now ripe before this Court.
DISCUSSION
MHM asserts dismissal is warranted on two grounds: (1) because Plaintiff
can prove no set of facts that MHM employed Brown at the time of Bolton’s death
such that it could potentially be vicariously liable for the actions of Brown on any
claim, and (2) because even if summary judgment is premature, MHM is due partial
judgment on the pleadings under Rule 12(c) with regard to any supervisors and/or
employees other than Brown because Plaintiff has not identified any other potential
employees on which MHM’s liability may be based with respect to Plaintiff’s state
law claims (Counts 3 and 5) and because Plaintiff’s § 1983 action (Count 2) based on
vicarious liability fails as a matter of law. (Doc. 90 at 1-2). This Court will address
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each argument in turn.
I.

Motion for Summary Judgment
Federal Rule of Civil Procedure 56(a) provides that summary judgment shall

be granted: “if the movant shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.” The trial court’s
function is not “to weigh the evidence and determine the truth of the matter but to
determine whether there is a genuine issue for trial.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 249 (1986). “The mere existence of some evidence to support the
non-moving party is not sufficient for denial of summary judgment; there must be
‘sufficient evidence favoring the nonmoving party for a jury to return a verdict for
that party.’” Bailey v. Allgas, Inc., 284 F.3d 1237, 1243 (11th Cir. 2002) (quoting
Anderson, 477 U.S. at 249). "If the evidence is merely colorable, or is not
significantly probative, summary judgment may be granted." Anderson, at 249-250.
(internal citations omitted).
The basic issue before the Court on a motion for summary judgment is
“whether the evidence presents a sufficient disagreement to require submission to a
jury or whether it is so one-sided that one party must prevail as a matter of law.”
See Anderson, 477 U.S. at 251-252. The moving party bears the burden of proving
that no genuine issue of material fact exists. O'Ferrell v. United States, 253 F.3d
1257, 1265 (11th Cir. 2001). In evaluating the argument of the moving party, the
court must view all evidence in the light most favorable to the non-moving party,
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and resolve all reasonable doubts about the facts in its favor. Burton v. City of Belle
Glade, 178 F.3d 1175, 1187 (11th Cir. 1999). “If reasonable minds could differ on
the inferences arising from undisputed facts, then a court should deny summary
judgment.” Miranda v. B&B Cash Grocery Store, Inc., 975 F.2d 1518, 1534 (11th
Cir. 1992) (citing Mercantile Bank & Trust v. Fidelity & Deposit Co., 750 F.2d 838,
841 (11th Cir. 1985)).
Once the movant satisfies his initial burden under Rule 56(c), the non-moving
party "must make a sufficient showing to establish the existence of each essential
element to that party's case, and on which that party will bear the burden of proof
at trial." Howard v. BP Oil Company, 32 F.3d 520, 524 (11th Cir. 1994)(citing
Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)). Otherwise stated, the nonmovant must “demonstrate that there is indeed a material issue of fact that
precludes summary judgment.” See Clark v. Coats & Clark, Inc., 929 F.2d 604, 608
(11th Cir. 1991). The non-moving party “may not rely merely on allegations or
denials in its own pleading; rather, its response .... must be by affidavits or as
otherwise provided in this rule be set out specific facts showing a genuine issue for
trial.” Vega v. Invsco Group, Ltd., 2011 WL 2533755, *2 (11th Cir. 2011). “A mere
‘scintilla’ of evidence supporting the [non-moving] party’s position will not suffice;
there must be enough of a showing that the jury could reasonably find for that
party.” Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990) (citation omitted).
“[T]he nonmoving party may avail itself of all facts and justifiable inferences in the
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record taken as a whole.” Tipton v. Bergrohr GMBH-Siegen, 965 F.2d 994, 998 (11th
Cir. 1992). “Where the record taken as a whole could not lead a rational trier of fact
to find for the non-moving party, there is no genuine issue for trial.” Matsushita
Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574 at 587 (1986) (internal
quotation and citation omitted).
Plaintiff does not dispute that she does not currently have any admissible
evidence to support that Brown was an employee of MHM during the relevant time
period. Rather, she argues, only that she has not yet had ample opportunity to
conduct discovery to foreclose the issue and that she should be allowed to complete
discovery pursuant to Rule 56(d). (Doc. 92 at 4, 13). In support of her position that
discovery is necessary, Plaintiff points to the fact that (1) MHM has a contract with
ADOC to provide mental health care services to Holman, (2) it is known that
Brown, at one time, worked for MHM, (3) Bolton undisputedly saw Brown prior to
his suicide, and (4) another Defendant informed Plaintiff that Brown worked for
MHM. (Doc. 92 at 9-10). Plaintiff also contends that Brown could be employed by
more than one employer, i.e., MHM and either Corizon or ADOC. (Doc. 92 at 16-20,
generally). Lastly, Plaintiff points out that she has in no way been dilatory in
conducting discovery despite the number of months that this action has been
pending because the focus of Plaintiff has, until recently, been set on correctly
identifying those persons with whom Bolton came into contact with at Holman prior
to his death, i.e. those persons who may potentially be individually liable in this
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action, prior to the deadline to amend the pleadings. (Id. at 4-11, generally). In
that respect, Plaintiff states that at the time the subject motion was filed, she was
working to schedule the necessary depositions and that she would voluntarily
dismiss this action against MHM if discovery confirmed that Brown was not an
employee, or co-employee of MHM at the time of Bolton’s death and if no other
MHM employees were liable. (Doc. 92 at 3).
In reply, MHM asserts that Plaintiff is not due relief pursuant to Rule 56(d)
because she has not identified what specific facts she expects to discover through
the discovery process that would justify discovery taking place and because she has,
thus far, not been diligent in conducting discovery. (Doc. 93 at 2-3).
“As a general rule summary judgment should not be granted until the party
opposing the motion has had an adequate opportunity to conduct discovery.”
Reflectone, Inc. v. Farrand Optical Co., Inc., 862 F.2d 841, 843 (11th Cir. 1989).
However, “an adequate opportunity to complete discovery” does not mean that a
motion for summary judgment made before the close of discovery is per se
premature. Walker v. JPMorgan Chase Bank, N.A., 987 F.Supp.2d 1348, 1352 (N.D.
GA 2013) citing e.g., Reflectone, 862 F.2d at 843.
Rule 56(f) specifically addresses the question of summary judgment
before discovery has taken place. The party opposing summary judgment
may move the court to permit the discovery necessary to oppose the motion.
The party seeking to use rule 56(f) “ ‘may not simply rely on vague assertions
that additional discovery will produce needed, but unspecified, facts,’ but
rather he must specifically demonstrate ‘how postponement of a ruling on the
motion will enable him, by discovery or other means, to rebut the movant's
showing of the absence of a genuine issue of fact.’ ” Wallace v. Brownell
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Pontiac-GMC Co., 703 F.2d 525, 527 (11th Cir. 1983) (quoting SEC v. Spence
& Green Chem. Co., 612 F.2d 896 (5th Cir. 1980)).
Reflectone, 862 F.2d at 843-44. If the nonmovant shows it cannot present facts
essential to justify its opposition, the district court may defer judgment, deny the
motion, allow time for additional discovery, or issue any other appropriate order.
Fed.R.Civ.P. 56(d).
In the present action, Plaintiff has specifically indicated that it needs to take
the deposition of Brown and the corporate representative for MHM and conduct
discovery on the issue of whether Brown was an employee or co-employee of MHM
during the relevant time period in order to properly respond to MHM’s assertions
that it cannot prove any facts to support a vicariously liability claim against MHM
based on Brown’s actions or inactions.2 This Court finds that Plaintiff should be
permitted to conduct such discovery (if it has not already taken place), and that a
ruling on MHM’s motion is premature until such discovery has been conducted.
However, based on the known information and the documentation previously
voluntarily produced to Plaintiff, that is, Brown’s Answer identifying her employer
as ADOC and MHM’s employee file on Brown indicating her employment ended
years before Bolton’s death occurred, this Court finds that Plaintiff should conduct
the necessary discovery in a more timely fashion than the discovery deadline set

A review of the docket sheet indicates that Plaintiff noticed depositions of Brown
and MHM to take place on March 16, 2018. (Doc. 95) The Court presumes those
depositions have taken place, however neither party has supplemented their filings
to indicate what the discovery revealed about the employment status in question.
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2

forth in the Rule 16(b) Scheduling Order - especially given Plaintiff’s position that it
will voluntarily dismiss MHM if warranted, as soon as the employment of Brown
has been confirmed through discovery. As such, unless said discovery has already
been accomplished, Plaintiff should conduct the needed discovery, including issuing
the necessary written discovery and scheduling the required deposition(s) as soon as
possible, but not later than in the next thirty (30) days.
II.

Motion for Judgment on the Pleadings

MHM alternatively asserts that if summary judgment is premature, then a
partial dismissal of Counts 2, 3, and 5 pursuant to Federal Rule 12(c) is still
warranted because Plaintiff has failed to state a claim upon which relief can be
granted. (Doc. 90 at 8-9). More specifically, MHM asserts that Plaintiff’s claim
against it under 42 U.S.C. § 1983 (Count 2) fails as a matter of law because the only
ground for Plaintiff’s claim is that MHM is vicariously liable for the actions of
Brown or, ostensibly other unknown employees and supervisors and neither
vicarious liability or respondeat superior may be a basis for liability under § 1983.
(Id. at 9). MHM additionally contends Plaintiff’s state law claims (Counts 3 and 5)
fail because Plaintiff’s Complaint fails to set forth any facts which support that
someone other than Brown acted wrongfully. (Id.)
Plaintiff argues that MHM’s alternative motion for partial judgment on the
pleadings is due to be denied as to the state law claims (Counts 3 and 5) because
she has properly pled claims against MHM for the negligent and wanton conduct of
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others who may be employed by MHM. More specifically, Plaintiff contends that
she has properly asserted that MHM is vicariously liable for the negligent or
wanton conduct of MHM’s supervisor’s and employees other than Brown because
they breached the applicable standard of care owed to Bolton, negligently performed
their duties to exercise reasonable care in the hiring, training, supervising, and
retaining medical professionals, and because they acted indifferent to Bolton,
knowing that injury would likely or probably result. (Doc. 92 at 21). Again,
Plaintiff urges that it should be able to conduct discovery to determine the identity
of other supervisors and employees of MHM and states that if MHM did not control
any other such persons at the time of Bolton’s death, then Plaintiff will voluntarily
dismiss her vicarious liability claims against MHM. (Id. at 22). Plaintiff’s Response
does not specifically address whether or how her § 1983 claim against MHM is
sufficiently pled or how MHM is liable pursuant to § 1983 based on something other
than the vicarious liability of MHM’s employees. In fact, given that Plaintiff
repeatedly states she will dismiss all claims against MHM if discovery confirms that
MHM does not employ Brown, it appears that Plaintiff agrees that its only federal
claim against MHM pursuant to §1983 is based on vicarious liability.
Under Federal Rule of Civil Procedure 12(c), a party may make a motion for
judgment on the pleadings after the pleadings are closed, but early enough not to
delay trial where a complaint “fail[s] to state a claim upon which relief can be
granted.” Federal Rule of Civil Procedure 12(b)(6) motions to dismiss standards
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apply to Federal Rule of Civil Procedure 12(c) motions for judgment on the
pleadings. Strategic Income Fund, L.L.C. v. Spear, Leeds & Kellogg Corp., 305 F.3d
1293, 1295 n. 8 (11th Cir.2002) (explaining that standard under both Rule 12(b)(6)
and 12(c) is “whether the count state[s] a claim for relief”).
When reviewing a motion to dismiss under Federal Rule of Civil Procedure
12(b)(6), the Court must view the allegations in the light most favorable to the
plaintiff and accept the allegations of the complaint as true. Speaker v. U.S. Dep't of
Health & Human Servs., 623 F.3d 1371, 1379 (11th Cir. 2010). To avoid dismissal, a
complaint must contain sufficient factual allegations to “state a claim to relief that
is plausible on its face” and “raise a right to relief above the speculative level.” Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 570 (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.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “While a complaint attacked by a Rule
12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's
obligation to provide the grounds of his entitle[ment] to relief requires more than
labels and conclusions, and a formulaic recitation of a cause of action’s elements will
not do.” Twombly, 550 U.S. at 555 (alteration in original) (citations and quotations
omitted). The Court should not assess “whether a plaintiff will ultimately prevail
but” consider “whether the claimant is entitled to offer evidence to support the
claims.” Id. at 583 (citing Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)). “[A] well13

pleaded complaint may proceed even if it strikes a savvy judge that actual proof of
those facts is improbable, and ‘that a recovery is very remote and unlikely.’ ” Id. at
556. “The Supreme Court's Twombly formulation of the pleading standard “does
not impose a probability requirement at the pleading stage, but instead simply calls
for enough facts to raise a reasonable expectation that discovery will reveal
evidence of the necessary element.” Williams v. Henry, 2009 WL 3340465, at *2
(S.D. Ala. Oct. 15, 2009) (citations and internal quotations omitted). “A district
court may properly dismiss a complaint if it rests only on ‘conclusory allegations,
unwarranted factual deductions or legal conclusions masquerading as facts.’ ”
Magwood v. Sec'y, Florida Dep't of Corr., 652 F. App'x 841, 843 (11th Cir. 2016),
cert. denied sub nom. Magwood v. Jones, 137 S. Ct. 675 (2017) (quoting Davila v.
Delta Air Lines, Inc., 326 F.3d 1183, 1185 (11th Cir. 2003)).
Plaintiff’s Fourth Amended Complaint contains sixty-four paragraphs of
factual information which is the basis of her claims against MHM pursuant to §
1983 (Count 2) and under state law for medical negligent malpractice and
wantonness (Counts 3 and 5). With regard to the state law negligence claim against
MHM, Count 3 states in pertinent part as follows:
101.1 MHM, its supervisors, and its employees (including Brown) negligently
breached that duty by: (a) failing to timely diagnose and treat Roderick's
suicidal tendencies and mental illnesses;(b) failing to order protection for
Roderick after he manifested suicidal tendencies and mental illnesses,
including failing to place him in a monitored cell where suicide was
impossible; (c) failing to order appropriate medical and psychiatric treatment
for Roderick's suicidal tendencies and mental illnesses; (d) failing to timely
and appropriately have Roderick tested, diagnosed and treated, at a hospital
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or other appropriate facility or otherwise for his dangerous suicidal
tendencies and mental illnesses.
101.2. Corizon and MHM undertook a duty to the inmates at Holman prison
to act with reasonable care in hiring, training, supervising, and retaining
medical professionals, whether as employees or contractors, who are
reasonably competent to provide health care to inmates. They negligently
performed these duties because they negligently hired, trained, retained, and
supervised Brown and others. By negligently hiring, training, retaining, and
supervising Brown, Corizon and MHM negligently created an environment
where this tragedy was foreseeable to occur.
(Doc. 75 at 21). MHM argues that Plaintiff has insufficiently pled her state law
claims because she has failed to identify by name, the specific employees or
supervisors of MHM who committed the actions described above and detailed
throughout the factual allegations of the Complaint. MHM’s argument is not
compelling.3 Rather, a review of the factual allegations and the state law claims
sufficiently state a claim against MHM based on vicarious liability for the actions of
its employees and supervisors regardless of whether the identities of those
employees are known.4 For the same reasons, Plaintiff has additionally satisfied
the pleading requirements for the accompanying state law claim for wantonness

It is worth noting that MHM does not contend that the Complaint is insufficiently
pled with respect to Brown, thereby acknowledging that, but for the lack of names
of other employees, Plaintiff has sufficiently pled her state law claims.
4 MHM also argues that because Plaintiff cannot identify any other known
employees who committed the actions alleged, that she is attempting to get around
fictitious party pleading. However, Plaintiff’s position is not compelling because
Plaintiff is not seeking to conduct discovery to identify employees in an effort to
then hold them in individually liable for the actions detailed in the complaint.
Rather, Plaintiff is seeking to hold MHM liable for its employees’ actions based on
vicarious liability and/or respondeat superior.
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3

(Count 5).
However, with regard to Plaintiff’s § 1983 claims, MHM’s position is
compelling. While Plaintiff can sufficiently plead a claim for negligence/wantonness
based on vicarious liability or respondeat superior without identifying every
employee involved, the same is not true for § 1983 claims, because no matter which
employee may be identified through discovery, MHM cannot be liable for a § 1983
claim based only on the basis of vicariously liability.
It is well established in the Eleventh Circuit that “supervisory officials are
not liable under § 1983 for the unconstitutional acts of their subordinates on the
basis of respondeat superior or vicarious liability.” Hartley v. Parnell, 193 F.3d
1263, 1269 (11th Cir. 1999) (internal quotation marks and citation omitted); Monell
v. Dep't of Soc. Servs., 436 U.S. 658, 691 & 694 n. 58 (1978). Likewise, supervisors,
employers, and private contractors cannot be sued under § 1983 simply on a theory
of respondeat superior. See Kruger v. Jenne, 164 F. Supp. 2d 1330, 1333–34 (S.D.
Fla. 2000) (citing Powell v. Shopco Laurel, Co., 678 F.2d 504 (4th Cir. 1982))
Instead, supervisory liability under § 1983 occurs when the supervisor personally
participates in the alleged unconstitutional conduct or when there is a causal
connection between the actions of a supervising official and the alleged
constitutional violation. Cottone v. Jenne, 326 F.3d 1352, 1360 (11th Cir. 2003). A

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government entity5 may be liable in a § 1983 action “only where the [government
entity] itself causes the constitutional violation at issue.” Cook ex. rel. Estate of
Tessier v. Sheriff of Monroe Cty., Fla., 402 F.3d 1092, 1116 (11th Cir. 2005)
(citations omitted). Thus, a plaintiff must establish that an official policy or custom
of the government entity was the “moving force” behind the alleged constitutional
deprivation. See Monell v. Dep't of Soc. Servs., 436 U.S. 658, 693-94 (1978). Because
Plaintiff’s Complaint does not state any other ground on which MHM may be liable
pursuant to § 1983, other than through the actions of its employees, and because
Plaintiff’s Complaint fails to identify any policy or custom creating the required
causal connection between MHM and its employee(s), Plaintiff’s § 1983 claim
against MHM fails as a matter of law. Stated differently, considering all of the facts
plead in Plaintiff’s Complaint as true, Plaintiff has not properly plead a §1983 claim
against MHM.
CONCLUSION
For the reasons stated above, MHM’s Motion for Summary Judgment (Doc.
90) is premature and is DENIED without prejudice. Unless Plaintiff has already

5Although

MHM is not a governmental entity, “[w]here a function which is traditionally the
exclusive prerogative of the state... is performed by a private entity, state action is present” for
purposes of § 1983. Ancata v. Prison Health Servs., Inc., 769 F.2d 700, 703 (11th Cir. 1985)
(citations omitted). Indeed, “when a private entity...contracts with a county to provide medical
services to inmates, it performs a function traditionally within the exclusive prerogative of the
state” and “becomes the functional equivalent of the municipality” under section 1983. Buckner
v. Toro, 116 F.3d 450, 452 (11th Cir. 1997).
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conducted the necessary discovery, Plaintiff is ORDERED to do so as soon as
possible, but not later than in the next thirty (30) days. MHM may refile its
summary judgment motion and reassert the arguments contained therein after
Plaintiff has had an opportunity to engage in discovery as set forth herein above,
should such a motion still be warranted. Further, MHM’s Motion for Partial
Judgment on the Pleadings is GRANTED with respect to Plaintiff’s § 1983 claim
(Count 2) and DENIED with respect to Plaintiff’s state law claims (Count 3 and 5).
Lastly, based on the conclusions stated herein above, this Court finds that
attorney’s fees and costs are not warranted at this time.
DONE and ORDERED this 7th day of June, 2018.
/s/ Callie V. S. Granade
SENIOR UNITED STATES DISTRICT JUDGE

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