Peacock v. Tucker et al
Filing
71
OPINION AND ORDER granting 52 motion to dismiss and all claims against defendant Stordahl are dismissed with prejudice. The Clerk shall enter judgment and terminate this defendant. Signed by Judge John E. Steele on 12/20/2013. (RKR)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
JAMES C. PEACOCK,
Plaintiff,
v.
Case No:
2:12-cv-63-Ftm-29DNF
NICOLAS O. CABREO-MUNIZ and D.
STRODAHL, R.N.,
Defendants.
/
OPINION AND ORDER
This case is before the Court on Defendant Stordahl’s motion to
dismiss (Doc. 52, filed June 11, 2013).
In the motion, Defendant
Stordahl notes that the only claims against her are pendent state
law claims for medical negligence (Doc. 52 at 1).1
Defendant argues,
inter alia, that because Plaintiff did not comply with the pre-suit
notice requirements of Florida Statute § 766.106 for filing a medical
malpractice claim, Plaintiff has not complied with all conditions
precedent to filing suit.
Therefore, asserts Defendant Stordahl,
Plaintiff's claims against her should be dismissed with prejudice.
Id.
1
This Court dismissed all Eighth Amendment claims against Defendant
Stordahl on May 22, 2013.
The Court determined that “While the
medical care rendered by Defendant Stordahl may constitute
negligence, neither negligence nor gross negligence constitutes
deliberate indifference. Consequently, only Plaintiff's pendent
State law claims for negligence may proceed against Defendant
Stordahl.” (Doc. 47 at 15) (internal citations omitted).
Plaintiff filed a response to Defendant Stordahl’s motion in
which
he
concedes
that
he
did
not
comply
with
the
pre-suit
requirements of Florida Statute § 766.106 and requests that this
Court dismiss his claims against Defendant Stordahl (Doc. 68, filed
December 19, 2013).
Because Plaintiff requests that Defendant Stordahl be dismissed
from this action and because Plaintiff did not comply with Florida’s
pre-suit requirements, Defendant Stordahl’s motion to dismiss is
GRANTED.
See J.B. v. Sacred Heart Hosp. of Pensacola, 635 So. 2d
945 (Fla. 1994) (noting that pre-suit notice must be met in order to
maintain a medical malpractice or medical negligence action against
a health care provider).
Accordingly, it is hereby ORDERED AND ADJUDGED:
1.
GRANTED.
Defendant
Stordahl’s
motion
to
dismiss
(Doc.
52)
is
All claims against Defendant Stordahl are dismissed with
prejudice.
2.
The Clerk of Court is directed to terminate this defendant
and to enter judgment in her favor.
DONE and ORDERED in Fort Myers, Florida on this
December, 2013.
SA: OrLP-4 12/20/13
Copies furnished to:
All parties of record
2
20th
day of
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