Larimore v. Sawyer et al

Filing 20

OPINION AND ORDER granting 19 motion to amend and plaintiff shall file an amended complaint within 30 days; denying as moot 16 amended motion to dismiss. The Clerk shall send Plaintiff a copy of his complaint filed in case number 2:16-CV-705-FtM-99CM and a copy of the non-prisoner complaint form marked as amended complaint with the case number. Signed by Judge John E. Steele on 3/8/2018. (RKR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
WILLIAM TODD LARIMORE,
Plaintiff,
v.

Case No:

2:16-cv-434-FtM-29MRM

DONALD SAWYER, Dr., Director
of Florida Civil Commitment
Center and FNU LAMOUR, Dr.,
Defendants.

OPINION AND ORDER
This matter comes before the Court on the Defendants’ Amended
Motion to Dismiss (Doc. #16) filed on behalf of Defendants Sawyer
and

Lamour

(collectively

“Defendants”)

on

July

17,

2017.

Plaintiff filed a response to the Defendants’ motion (Doc. #18) on
July 31, 2017.

Subsequently, Plaintiff filed a pleading titled

“Supplemental Facts” (Doc. #19) with exhibits (Doc. #19-1) on
October 4, 2017.

This case is ripe for review.
I.

Plaintiff William Todd Larimore, an involuntarily civilly
committed resident of the Florida Civil Commitment Center (“FCCC”)
in Arcadia, Florida, 1 initiated this action by filing a pro se

1

Florida’s Involuntary Civil Commitment for Sexually Violent
Predators Act was enacted in Florida “to create a civil commitment
procedure for the long-term care and treatment of sexually violent

“Civil Rights Action Complaint, 42 U.S.C. Sections [sic] 1983 and
Tort Claims-Florida Statute Section 786.28” (Doc. #1, “Complaint”)
on June 3, 2016. 2

The Complaint attaches exhibits, including

various FCCC resident grievance, communication, and sick call
forms,

and

documents

relating

to

a

criminal

investigation

involving FCCC resident Jose Santiago (Doc. #1-1).

Liberally

construing the Complaint, Plaintiff attempts to state a failure to
protect claim and constitutionally deficient 3 medical indifference
claim against Defendant Dr. Donald Sawyer, Director of Florida
Civil Commitment Center, and Dr. Lamour, the medical doctor at the
FCCC, in both their individual and official capacities.

Complaint

at 2 (naming each Defendant in their individual name and “as
Correct Care Solutions, Inc.”).

According to the Complaint, on

predators.” Fla. Stat. § 394.910, et seq. A person who is found,
after a hearing, to be a “sexually violent predator” is “committed
to the custody of the Department of Children and Family Services
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.” Id. at § 394.917.
2

The Court takes judicial notice that subsequent to filing
the instant action, Plaintiff filed a virtually identical action
at 2:16-CV-705-FtM-99CM that was dismissed as duplicative by the
Court on December 30, 2016. The Court in its Order of Dismissal
advised Plaintiff that to the extent he intended the complaint to
act as an amended complaint in this earlier filed action he must
include the case number on his pleading.
3

Plaintiff is a civil detainee and not a prisoner. Thus, in
evaluating Defendants’ alleged liability this Court uses the
“professional judgment” standard” from Youngberg v. Romero, 457
U.S. 307, 322 (1982), instead of the “deliberate indifference”
standard under the Eight Amendment.

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March 5, 2015, FCCC resident Santiago attacked Plaintiff while he
was sleeping causing Plaintiff to sustain serious bodily injuries,
necessitating Plaintiff “to be rushed to an outside hospital.”
Id. at 5-7.

Plaintiff complains that Defendants failed to provide

“a safe and secure environment” that resulted in Plaintiff being
attacked.

Id. at 4.

Plaintiff further avers that Dr. Sawyer

“should have known” that Santiago “was a violent and dangerous
person from his previous actions.”

Id. at 7.

Beginning in May

2015, Plaintiff requested medical care for the “constant pain” he
was experiencing due to the attack.

Id. at 8.

Because he was not

receiving any relief from the pain and his symptoms and pain were
getting worse, Plaintiff made requests to be seen by an outside
nerve specialist.

Id. at 9.

Plaintiff states that he “notified

said defendants of his complaint by talking face to face with Dr.
Sawyer,” as well as other staff members.

Id. at 4.

Plaintiff

acknowledges that eight months later he was sent to a nerve
specialist who advised him “he should had [sic] been seen sooner.”
Id. at 9.
Defendants move to dismiss the Complaint on the basis that
the Complaint states a claim against Defendant Sawyer based solely
on

the

theory

articulate

a

Motion at 10.

of

supervisory

constitutional

responsibility,

claim

against

and

fails

Defendant

to

Lamour.

Further, to the extent that the Complaint seeks any

relief against Correct Care Solutions, Inc., Defendants submit

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that

Correct

Care

is

not

“even

a

defendant.”

Id.

at

3.

Additionally, Defendants argue that the Complaint is devoid of any
allegation that Plaintiff has complied with Florida Statute §
766.106 (2) (a) to maintain a medical malpractice claim under
Florida law.

Id. at 8-9.

In the alternative, Defendants request

that the Court order Plaintiff to file an amended complaint to
more clearly allege his claims “in the event the Court is inclined
to allow at least some claims to proceed.”

Id. at 10.

Plaintiff, filed Supplemental Facts (Doc. #19) in support of
his Complaint subsequent to filing a response in opposition to
Defendants’ Motion.

From a review of this pleading it appears

that Plaintiff underwent surgery in July 2017, for his medical
condition complained of in the Complaint.
3.

Supplemental Facts at

Plaintiff states that his ongoing constant “pain was gone

between 7-5-2017 to 8-18-2017,” when he was reinjured while being
transported back to the FCCC from a follow up appointment with the
surgeon.

Id. at 1-3.

Plaintiff states that he is “not filing a

New Complaint for the vehicle incident,” but now requires medical
care again for his previous condition and Defendants are denying
and/or delaying the necessary medical care he requires resulting
in his continuing pain.
Plaintiff’s

Supplemental

Doc. #19-1 at 2.
Facts,

it

attempting to amend his Complaint.

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Liberally construing

appears

that

Plaintiff

is

III.
A plaintiff may amend his complaint once as a matter of course
within 21 days after a motion to dismiss is filed under Fed. R.
Civ. P. 12(b).

See Fed. R. Civ. P. 15(a)(1)(B).

In all other

circumstances, a plaintiff may amend his complaint only with the
defendant's written consent or leave of the court, which should
grant leave to amend freely “when justice so requires.”
(2).

Id. 15(a)

Here, the Supplemental Complaint, construed as a motion to

amend, was filed beyond the 21-day period, but Defendants’ appear
to consent to Plaintiff filing an amended complaint.
at 10.

See Motion

In any event, in the instant case the Court finds that

“justice so requires” permitting Plaintiff an opportunity to file
an amended complaint in light of Plaintiff’s pro se status.

See

Bank v. Pitt, 928 F.2d 1108, 1112 (11th Cir. 1991), overruled in
part by Wagner v. Daewoo Heavy Indus. Am. Corp., 314 F.3d 541, 542
(11th Cir. 2002)(en banc)(holding that this rule does not apply to
counseled plaintiffs).

Consequently, the Court will permit pro

se Plaintiff an opportunity to amend his Complaint.
Accordingly, it is hereby
ORDERED AND ADJUDGED:
1.

Plaintiff’s Supplemental Facts (Doc. #19), construed as

motion to amend, is GRANTED and Plaintiff shall file an amended
complaint within thirty (30) days of the date of this Order.

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2.

Defendants’ Amended Motion to Dismiss (Doc. #16) is

DENIED as moot.
3.
filed

in

The Clerk shall send Plaintiff a copy of his complaint
case

number

2:16-CV-705-FtM-99CM

and

a

copy

of

the

Complaint for Violation of Civil Rights (Non-Prisoner Complaint)
Civil Rights Complaint Form 4 marked “Amended Complaint” bearing
this case number for Plaintiff’s use in preparing his Amended
Complaint, if appropriate.
DONE and ORDERED at Fort Myers, Florida, this

8th

day of

March, 2018.

SA:

FTMP-1

Copies:
Pro Se Plaintiff
Counsel of Record

4

The form, along with other valuable resources, can be found
on the Court’s “Proceeding Without a Lawyer” site at the following
website: http://www.flmd.uscourts.gov/pro_se/default.htm.

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