Boatman v. Barreto et al
Filing
76
ORDER granting 64 Motion to Dismiss; dismissing without prejudice Second Amended Complaint with leave to amend. Plaintiff has 21 days to file a third amended complaint. Signed by Judge John E. Steele on 9/14/2018. (RKR)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
RAYVON L. BOATMAN,
Plaintiff,
v.
Case No:
2:16-cv-209-FtM-99CM
ANGELA
BERRETO,
Dentist
Assistant - Nurse, GEORGE F.
NARYSHKIN,
Dentist,
J.
LAMOUR, Medical Director at
FCCC,
GERALD
T.
DAVID,
D.D.S., GEO GROUP, INC.,
JORGE DOMINICIS, Corporate
Director
Mental
Health,
CORRECT
CARE
RECOVERY
SOLUTIONS,
DEPARTMENT
OF
CHILDREN
AND
FAMILY
SERVICES, M. JOHNSON, and
JANE DOE MORRIS,
Defendants.
ORDER
This matter comes before the Court on Defendants' Correct
Care Solutions’, Angelo Berreto’s, and Jacques Lamour's Motion to
Dismiss Plaintiff's First Amended Complaint (Doc. #75) filed on
February 2, 2018.
Plaintiff filed a response in opposition and
motion to strike (Doc. #71) on June 11, 2018.
briefed and ripe for the Court’s review.
The Motion is fully
I.
BACKGROUND
Plaintiff is a civil detainee at the Florida Civil Commitment
Center (FCCC) in Arcadia, Florida. 1
Plaintiff initiated this
complaint on March 16, 2016, by filing a civil rights complaint
pursuant to 42 U.S.C. § 1983. Plaintiff filed a first amended
complaint on November 16, 2016,(Doc. #27), however; that complaint
was incomplete and was stricken by the Court.
Plaintiff filed his
second amended complaint (Doc. #35) on September 28, 2017.
Plaintiff’s second amended complaint is not a model of clarity
and appears to be an amalgam of various complaints he has made
against the FCCC and staff in the past.
From what the Court can
ascertain from the pleading, Plaintiff is alleging Defendants:
were
deliberately
indifferent
to
his
dental
care;
retaliated
against him for filing grievances; provided a general lack of
mental health; failed to create a review board to hear complaints;
1
The Florida legislature enacted the Sexually Violent
Predators Act, Florida Statute §§ 394.910-.913, by which a person
determined to be a sexually violent predator is required to be
housed in a secure facility “for control, care, and treatment until
such time as the person’s mental abnormality or personality
disorder has so changed that it is safe for the person to be at
large.” Fla. Stat. § 394.917(2). The Act was promulgated for the
dual purposes “of providing mental health treatment to sexually
violent
predators
and
protecting
the
public
from
these
individuals.”
Westerheide v. State, 831 So. 2d 93, 112 (Fla.
2002); Kansas v. Hendricks, 521 U.S. 346 (1997) (holding that the
Kansas Sexually Violent Predator Act did not establish criminal
proceedings, and involuntary confinement pursuant to the Act was
not punitive).
- 2 -
and denied him due process during a hearing over Plaintiff being
removed from his food services job at the FCCC.
The thrust of Plaintiff’s second amended complaint appears to
be deliberate indifference concerning the loss of a dental filing
on October 20, 2014, and issues thereafter.
Plaintiff’s time line
is a confused jumble making allegations about lack of treatment
for his oral pain while at the FCCC going back as far as 2010 and
up through 2017, without naming the individuals who failed to treat
him during that time frame, with the exception of the staff that
treated his broken and abscessed tooth after October 20, 2014.
Plaintiff states that he put Defendants on notice that he had
bleeding gums and pain as far back as January 3, 2011. (Doc. #35
at 29).
2013,
However, Plaintiff says the issue started on August 26,
when
Plaintiff
reported
that
he
was
having
oral
pain.
Plaintiff said his condition got worse and his pain increased but
Defendants would not provide him with treatment other than giving
him Ibuprofin for his infection and pain. Id. at 17.
On October 24, 2014, Plaintiff filled out a dental health
request slip regarding a dental filing that fell out while he was
eating.
Id.
at
18.
Plaintiff
was
appointment on October 27, 2014. Id.
scheduled
for
a
dental
Plaintiff avers that even
though he was being seen by a dentist in October 2014, Defendants
had demonstrated deliberate neglect over his oral pain for months
and even years prior to this appointment.
- 3 -
Plaintiff alleges
Defendants treated him roughly because they knew he could not file
grievances as he was on grievance restrictions.
The treating dentist pulled the Plaintiff’s infected tooth
however, his gums and jaw continued to be swollen, sensitive, and
painful.
Plaintiff was informed that another tooth, adjacent to
the infected tooth, would have to be extracted because the abscess
had spread into the gum line.
Plaintiff states he was given
another appointment time, however, Plaintiff was five minutes late
and Defendants refused to treat him.
On November 4, 2014, Plaintiff filled out an emergency dental
request form.
On November 5, 2014, Plaintiff’s tooth was x-rayed
and he was examined by Nurse Naryshkin.
Plaintiff says he was
then treated harshly by Defendants in retaliation for his filing
the emergency dental request.
Plaintiff says he was held down in
the dental chair by Defendants in an unwelcome, unusual, and with
unnecessary physical force as punishment for having filed the
emergency dental form.
Plaintiff avers Defendants were hostile
and malicious because he had forced them to see him.
Plaintiff
was finally released from the dental chair after about thirty
minutes. Id. at 25.
Plaintiff says even though he was given pain
medicine, he was still in pain.
Id. at 13, 24.
On November 6, 2014, Defendants filed a disciplinary report
against Plaintiff because he filed the dental emergency.
25.
Plaintiff
says
the
disciplinary
- 4 -
report
was
Id. at
written
in
retaliation for his seeking medical help.
Plaintiff says that he
was denied preventative care and adequate treatment for his gum
pain months and even years from 2013 through 2017. Id. at 26.
Plaintiff says that Defendant GEO failed to have a policy
that investigated complaints and failed to direct his complaints
to the people he complained about so that they could provide him
with a direct answer.
Plaintiff says GEO acted outside of its
duties and failed to protect him from staff abuse. Plaintiff now
brings the instant case alleging Defendants were deliberately
indifferent to his oral health care needs and retaliated against
him for seeking emergency dental care.
II.
STANDARD OF REVIEW
In deciding a Rule 12(b)(6) motion to dismiss, the Court
limits
its
consideration
to
well-pleaded
factual
allegations,
documents central to or referenced in the complaint, and matters
judicially noticed. La Grasta v. First Union Sec., Inc., 358 F.3d
840, 845 (11th Cir. 2004). The Court must accept all factual
allegations in Plaintiff=s Complaint as true and take them in the
light most favorable to the plaintiff. Pielage v. McConnell, 516
F.3d 1282, 1284 (11th Cir. 2008). Conclusory allegations, however,
are not entitled to a presumption of truth. Ashcroft v. Iqbal, 556
U.S. 662 (2009) (discussing a 12(b)(6) dismissal); Marsh v. Butler
County, Ala., 268 F.3d 1014, 1036 n.16 (11th Cir. 2001).
- 5 -
The Court employs the Twombly-Iqbal plausibility standard
when reviewing a complaint subject to a motion to dismiss. Randall
v. Scott, 610 F.3d 701, 708, fn. 2 (11th Cir. 2010).
A claim is
plausible where the plaintiff alleges facts that “allow[] the court
to draw the reasonable inference that the defendant is liable for
the misconduct alleged.” Iqbal, 556 U.S. at 662.
The plausibility
standard requires that a plaintiff allege sufficient facts “to
raise
a
reasonable
expectation
that
discovery
will
reveal
evidence” that supports the plaintiff’s claim. Bell Atlantic Corp.
v. Twombly, 550 U.S. 544, 556 (2007); Marsh, 268 F.3d at 1036 n.16.
Specifically, “[w]hile 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 the elements of a cause of action
will
not
do.”
Id.
at
defendant-unlawfully
555
(citations
harmed
me
omitted).
accusation”
is
Thus,
“the-
insufficient.
Ashcroft, 129 S. Ct. at 1949. “Nor does a complaint suffice if it
tenders naked assertions devoid of further factual enhancement.”
Id. The “[f]actual allegations must be enough to raise a right to
relief above the speculative level.” See Twombly, 550 U.S. at 544.
Additionally,
there
requirement.
Randall,
is
610
no
longer
F.3d
at
a
701.
heightened
Because
pleading
Plaintiff
is
proceeding pro se, his pleadings are held to a less stringent
- 6 -
standard
than
pleadings
drafted
by
an
attorney
and
will
be
liberally construed. Hughes v. Lott, 350 F.3d 1157, 1160 (11th
Cir. 2003) (citing Tannenbaum v. United States, 148 F.3d 1262,
1263 (11th Cir. 1998)).
III. DISCUSSION
Defendants argue that Plaintiff fails to state a claim because
his complaint is just a disagreement over medical treatment and
not deliberate indifference. 2
They further claim that Plaintiff
does not make a claim against GEO because he fails to state a
custom, practice, or policy that GEO refuses to provide dental
care to detainees at the FCCC.
Title 42 U.S.C. § 1983 imposes liability on anyone who, under
color of state law, deprives a person “of any rights, privileges,
or immunities secured by the Constitution and laws.” To state a
claim under 42 U.S.C. § 1983, a plaintiff must allege that (1)
defendants deprived him of a right secured under the United States
Constitution or federal law, and (2) such deprivation occurred
under color of state law. Arrington v. Cobb County, 139 F.3d 865,
872 (11th Cir. 1998); U.S. Steel, LLC v. Tieco, Inc., 261 F.3d
1275, 1288 (11th Cir. 2001). In addition, a plaintiff must allege
and
establish
an
affirmative
causal
2
connection
between
the
Defendants argue that Plaintiff failed to administratively
exhaust his claims in their motion to dismiss, however, on May 18,
2018, Defendants withdrew that argument. (Doc. #72).
- 7 -
defendant=s conduct and the constitutional deprivation. Marsh v.
Butler County, Ala., 268 F.3d 1014, 1059 (11th Cir. 2001); Swint
v. City of Wadley, Ala., 51 F.3d 988, 999 (11th Cir. 1995); Tittle
v. Jefferson County Comm’n, 10 F.3d 1535, 1541 n.1 (11th Cir.
1994).
Ordinarily an inmate’s claim concerning his medical treatment
invokes the protections of the Eighth Amendment. Thomas v. Bryant,
614 F.3d 1288, 1303 (11th Cir. 2010)(citations omitted).
However,
because Plaintiff is a civil detainee, and not a prisoner, the
less
onerous
“professional
judgment”
standard
set
forth
in
Youngberg v. Romero, 457 U.S. 307, 322-323 (1982), applies to his
case. See Hood v. Dep’t of Children & Families, 700 F. App’x 988,
989
n.1
(11th
Cir.
2017)
(noting
that
the
Eighth
Amendment
deliberate indifference standard does not apply when the Plaintiff
is a civil detainee.
Rather, the professional judgment standard
set forth by the Supreme Court in Youngberg v. Romero, should be
applied).
In Youngberg, the Supreme Court held that the “professional
judgment”
standard
was
the
appropriate
test
for
determining
whether a substantive due process right has been violated in the
context of those of who have been involuntary committed. 457 U.S.
at 322–323.
Under that standard, “the Constitution only requires
that the courts make certain that professional judgment in fact
was exercised. It is not appropriate for the courts to specify
- 8 -
which of several professionally acceptable choices should have
been made.” Id. at 321 (internal quotations and citations omitted).
The standard acknowledges “that courts must show deference to the
judgment exercised by a qualified professional,” id. at 322, and
that
“i[f]
or
these
reasons,
the
decision,
if
made
by
a
professional, is presumptively valid; liability may be imposed
only when the decision by the professional is such a substantial
departure
from
accepted
professional
judgment,
practice,
or
standards as to demonstrate that the person responsible actually
did
not
base
the
decision
on
such
a
judgment.”
Id.
at
323
(footnotes omitted). A “qualified professional” is defined as s “a
person competent, whether by education, training or experience, to
make the particular decision at issue.” Id. at 323 n. 30.
Accepting Plaintiff’s allegations as true and giving him the
benefit of all legitimate inferences as required at the motion to
dismiss
stage
complaint
of
fails
indifference.
review,
to
make
the
a
Court
claim
finds
for
the
second
medical
amended
deliberate
Plaintiff’s second amended complaint contains facts
unrelated to this concerning his removal from the assigned food
service resident work program.
The second amended complaint also
refers to incidents that occurred from 2010 all the way through
2017, however, the allegations that Defendants harmed him during
the time span but never addresses specifically who it was that
- 9 -
caused the harm.
Plaintiff simply makes general allegations that
no one would treat him for gum pain.
Nevertheless,
Plaintiff’s
second
amended
complaint
could
plausibly state a medical deliberate indifference claim regarding
his infected gums and the broken filing from October 20, 2014.
As
such, Plaintiff will be given the opportunity to file a third
amended complaint.
complaint
should
If Plaintiff chooses to do so, the amended
only
allege
facts
supporting
the
medical
indifference claim stemming from his broken filing on October 20,
2014.
Plaintiff
Defendants’
should
treatment
or
note
that
medical
mere
judgment
disagreement
regarding
with
proper
procedure to follow with his dental care is not sufficient to state
a claim for deliberate indifference.
Further, Plaintiff's amended complaint must comply with Fed
R. Civ. P. 8.
Rule 8 of the Federal Rules of Civil Procedure
requires that a complaint contain "a short and plain statement of
the claim showing that the pleader is entitled to relief" Fed. R.
Civ. P. 8(a)(2).
The purpose of Rule 8 is to give notice to the
other party and not to formulate issues or fully summarize the
facts involved. Clausen & Sons, Inc. v. Theo. Hamm Brewing Co.,
395
F.2d
388,
390
(8th
Cir.
1968).
As
currently
drafted,
Plaintiff’s amended complaint does not comply with Rule 8.
Plaintiff is also reminded that pursuant to Federal Rule of
Civil Procedure 10, the allegations should be set forth in separate
- 10 -
numbered paragraphs, “each limited as far as practicable to a
single set of circumstances” Fed. R. Civ. P. 10(b). Further, each
claim “founded on a separate transaction or occurrence” must be
stated in a separate “Count.” Gnipp v. Bank of Am. N.A., No. 2:15CV-99-FTM-29CM, 2016 WL 502013, at *3 (M.D. Fla. Feb. 8, 2016).
Plaintiff must also only name those individuals that were actually
deliberately indifferent to his medical needs.
Plaintiff may not
simply say from 2010 through 2017 individuals at the FCCC were
deliberately indifferent to my medical needs.
The Court will not
speculate as to the nature of each specific defendant’s allegedly
unconstitutional
conduct
so-as-to
complaint on Plaintiff's behalf.
cobble
together
a
viable
The Supreme Court explains:
While a complaint . . . does not need detailed
factual allegations, a plaintiff’s obligation
to provide the grounds of his entitlement to
relief
requires
more
than
labels
and
conclusions, and a formulaic recitation of the
elements of a cause of action will not do.
Factual allegations must be enough to raise a
right to relief above the speculative level.
Twombly,
550
U.S.
at
545
(internal
citations
and
quotations
omitted).
There are also claims in the second amended complaint that
are unrelated to each other.
Unrelated claims against different
defendants belong in different suits.
If claims are not related
to the same basic issue or incident, then each must be raised in
a separate suit to prevent confusion and to ensure that Plaintiff
- 11 -
pays the required filing fees. See George v. Smith, 507 F.3d 605,
607
(7th
Cir.
2007)
(“Unrelated
claims
against
different
defendants belong in different suits, not only to prevent the sort
of morass that this 50–claim, 24–defendant suit produced but also
to ensure that [plaintiffs] pay the required filing fees[.]”).
Accordingly, it is hereby
ORDERED:
Defendants'
Correct
Care
Solutions,
Angelo
Berreto,
and
Jacques Lamour's Motion to Dismiss Plaintiff's Second Amended
Complaint (Doc. #64) is GRANTED.
(1)
Plaintiff’s
Second
Amended
Complaint
is
DISMISSED
without prejudice with leave to amend.
(2)
Plaintiff has twenty-one days from the date of this Order
to file a third amended complaint.
(3)
Failure to comply with this order will result in the
case being dismissed without further notice.
DONE and ORDERED at Fort Myers, Florida, this
of September, 2018.
Copies:
Counsel of Record
- 12 -
14th
day
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?