Boatman v. Barreto et al

Filing 91

OPINION AND ORDER granting 85 Motion to Dismiss for Failure to State a Claim; denying 89 motion to amend/correct. The Clerk shall enter judgment dismissing the Third Amended Complaint without prejudice, terminate all pending motions and deadlines, and close the file. Signed by Judge John E. Steele on 3/19/2019. (RKR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
RAYVON L. BOATMAN,
Plaintiff,

v.

Case No:

2:16-cv-209-FtM-99UAM

ANGELA
BERRETO,
Dental
Nurse, GEORGE F. NARYSHKIN,
Dentist, J. LAMOUR, Facility
Medical
Director
(M.D.),
GERALD T. DAVID, D.D.S., GEO
GROUP,
INC.,
JORGE
DOMINICIS,
Corporate
Director
Mental
Health,
CORRECT
CARE
RECOVERY
SOLUTIONS, and DEPARTMENT OF
CHILDREN
AND
FAMILY
SERVICES,
Defendants.

OPINION AND ORDER
This matter comes before the Court on Defendants Angela
Berrato, Dr. Jacques Lamour, and Correct Care Recovery Solutions,
LLC’s Motion to Dismiss Plaintiff's Third Amended Complaint (Doc.
#85) filed on January 23, 2019.

In response, Plaintiff Rayvon

Boatman moves the Court to allow the filing of a fourth amended
complaint (Doc. #89), filed on February 21, 2019.

I.
Boatman is a civil detainee at the Florida Civil Commitment
Center

(FCCC)

in

Arcadia,

Florida. 1

Boatman

initiated

this

complaint on March 16, 2016, by filing a civil rights complaint
under 42 U.S.C. § 1983.

Boatman filed a first amended complaint

on November 16, 2016, (Doc. #27), however; that complaint was
incomplete and was stricken by the Court.

Boatman filed his second

amended complaint (Doc. #35) on September 28, 2017.

The Court

dismissed Boatman’s second amended complaint and gave him leave to
file a third amended complaint.

Boatman was instructed to the

extent possible that he should limit his third amended complaint
to facts supporting the medical indifference claim stemming from
his broken filling from October 5, 2014.
Boatman’s Third Amended Complaint is not a model of clarity
and his facts and timeline are unclear.
to suffer in pain for over ten years.

1

Boatman says he was left
However, based on what the

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).

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Court can gather from his Third Amended Complaint, Boatman lost a
filling on October 5, 2014.

Boatman had pain in the tooth and gum

where the filling fell out and by October 24, 2014, Plaintiff’s
jaw and gum around the tooth were swollen and causing him pain.
Boatman went to medical where he was examined by a nurse.
Boatman was scheduled for a dental appointment on October 31,
2014, but he was late for the appointment and was not treated on
that day.
closed.

Boatman went on another day, but the dental area was
Boatman does not say if he had an appointment that day.

Plaintiff’s tooth was extracted, but Boatman provides no time frame
for the treatment.
Boatman says that Defendants told him he had a good tooth
that would last him for ten years, but the tooth turned out to be
bad.

Boatman

says

that

because

of

Defendants’

deliberate

indifference a good tooth also had to be removed after the bad
tooth was extracted because the abscess had infected the area over
the good tooth.

Boatman states that his treatment was delayed by

Lamour, Barreto, Naryshkin, GEO, CCRS, the FCCC, and GEO without
stating what role each played in the denial of his treatment or
how they as individuals denied him medical treatment.
II.
In deciding a Rule 12(b)(6) motion to dismiss, the Court
limits

its

consideration

to

well-pleaded

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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).
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, n.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,

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and a formulaic recitation of the elements of a cause of action
will

not

do.”

Id.

at

defendant-unlawfully

555

(citations

harmed

me

Ashcroft, 129 S. Ct. at 1949.
it

tenders

naked

enhancement.” Id.

omitted).

accusation”

is

Thus,

“the-

insufficient.

“Nor does a complaint suffice if

assertions

devoid

of

further

factual

The “[f]actual allegations must be enough to

raise a right to relief above the speculative level.” See Twombly,
550 U.S. at 544.
requirement.

And there is no longer a heightened pleading

Randall,

610

F.3d

at

701.

Because

Boatman

is

proceeding pro se, his pleadings are held to a less stringent
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.
Defendants argue that Boatman fails to state a claim for which
relief can be obtained.

Defendants contend that Boatman violates

Federal Rules of Civil Procedure 8 and 10, and that Boatman’s
allegations are nothing more than a difference of opinion on
treatment.
The Court finds that Boatman’s allegations violate Fed. R.
Civ. P. 8 and 10.

Rule 8 of the Federal Rules of Civil Procedure

requires that a complaint contain "a short and plain statement of

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the claim showing that the pleader is entitled to relief" Fed. R.
Civ. P. 8(a)(2).

Under Fed. R. Civ. P. 10, the allegations should

be set forth in separate 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. 2:15-CV-99-FTM-29CM, 2016 WL 502013, at *3 (M.D.
Fla. Feb. 8, 2016).
As drafted, Plaintiff’s amended complaint does not comply
with Rules 8 and 10.

Boatman states he was denied treatment by

the Defendants, but he does not say when such treatment was denied,
or who specifically denied the treatment, or how they refused same.
Boatman only points out one occasion on October 31, 2014, where he
was denied treatment.
to

his

October

31,

However, Boatman admits that he was late
2014

appointment.

(Doc.

#83

at

¶

37).

Therefore, the denial of treatment was not due to Defendants Lamour
and Naryshkin’s deliberate indifference, but to Boatman’s own
failure to arrive to his appointment on time.

Otherwise Boatman

makes no specific claim against the Defendants individually, nor
states how each Defendant was deliberately indifferent to his
dental needs.
Defendants

Instead, Boatman makes conclusory allegations that

refused

to

treat

him.

He

states

he

continually

complained to all the Defendants about his tooth pain from 2014-

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2015, but he never states in separate individual counts how each
Defendant caused him harm. (Doc. #83 at 6).

Boatman merely makes

a conclusory allegation he was denied treatment.
The Court will not speculate on the nature of each Defendants
alleged unconstitutional conduct. 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).
After being cautioned by the Court to include only facts
related to his medical indifference claim, Boatman includes claims
about the FCCC’s grievance procedures.

Boatman argues that he was

prohibited from filing grievances against members of the FCCC staff
and that Defendants reacted negatively to his filing grievances.
Boatman says Defendants accused him of submitting false emergency
dental claims and placed notices in his file as punishment. As
such failed to comply with the Court’s Order and his Third Amended
Complaint is due to be dismissed.
Ordinarily, a party must be given at least one opportunity to
amend before the district court dismisses the complaint. Bryant v.
Dupree, 252 F.3d 1161, 1163 (11th Cir.2001).

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The district court,

however, need not “allow an amendment (1) where there has been
undue delay, bad faith, dilatory motive, or repeated failure to
cure deficiencies by amendments previously allowed; (2) where
allowing amendment would cause undue prejudice to the opposing
party;

or

(3)

where

amendment

would

be

futile.”

Corsello

v.

Lincare, Inc., 428 F.3d 1008, 1014 (11th Cir. 2005).
Boatman has been given three opportunities to amend and cure
his deficiencies, but has failed to cure the deficiencies and set
forth a viable complaint.

Boatman moved the Court for leave to

amend, however, he did not attach a proposed amended complaint or
provide the Court with the substance of his proposed amended
complaint.

The Eleventh Circuit has held that “in order to

properly request leave to amend, a motion must ‘set forth the
substance of the proposed amendment or attach a copy of the
proposed amendment.’” Sure Fill & Seal, Inc. v. GFF, Inc., 2009 WL
1751726 * 2 (M.D. Fla. June 17,2009) (quoting Doe v. Pryor, 344
F.3d 1282, 1288 (11th Cir.2003).

Further, to allow Boatman to

amend his complaint for a fourth time would cause undue prejudice
to the Defendants.

Therefore, the motion for leave to amend is

denied.
Accordingly, it is hereby
ORDERED:

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(1)

Defendants' Motion to Dismiss Plaintiff's Third Amended
Complaint

(Doc.

#85)

is

GRANTED.

The

Plaintiff’s

Amended Complaint is hereby DISMISSED without prejudice.
(2)

Plaintiff Rayvon Boatman’s Motion for Leave to Amend is
DENIED.

(3)

The Clerk of Court will enter judgment, accordingly,
terminate any pending motions and deadlines, and close
the file.

DONE and ORDERED at Fort Myers, Florida, this
of March 2019.

Copies:
All Parties of Record
SA: FTMP-2

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19th

day