Herrera v. Rambosk et al
Filing
32
OPINION AND ORDER granting Rambosk's 23 motion to dismiss and dismissing 1 Complaint as 2 supplemented without prejudice as to Rambosk, Armor Correctional Health Services and "Unknown Shift Supervisors Deputys" [sic]; and with prejudice as to Collier County Jail. Signed by Judge John E. Steele on 3/19/2019. (RKR)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
LAZARO HERRERA,
Plaintiff,
v.
Case No:
2:17-cv-472-FtM-29MRM
COLLIER COUNTY SHERIFF KEVIN
RAMBOSK,
COLLIER
COUNTY
JAIL,
UNKNOWN
SHIFT
SUPERVISOR DEPUTYS [SIC],
ARMOR COORECTIONAL HEALTH
SERVICES, and TINA MARIE
GARMONE,
Defendants.
OPINION AND ORDER
This matter comes before the Court upon Defendant Rambosk’s
Motion to Dismiss (Doc. #23) filed June 8, 2018.
Plaintiff filed
a response to Defendant’s Motion (Doc. 26) on July 11, 2018.
As
more fully set forth herein, the Court grants Defendant Rambosk’s
Motion and sua sponte dismisses the Collier County Jail, “Unknown
Shift Supervisor Deputys” [sic], and Armor Correctional Health
Services as Defendants.
I.
Complaint
Liberally construed, the Complaint (Doc. #1) in conjunction
with the supplement (Doc. #2) alleges an Eight Amendment claim for
deliberate indifference to Plaintiff’s serious medical needs.
The
following facts are alleged in the Complaint and supplement and
are presumed true at this stage of the proceedings.
Plaintiff, a
convicted prisoner, was involved in an altercation with another
inmate on June 1, 2017 while he was incarcerated in the Collier
County Jail.
Doc. #2 at 3.
Plaintiff sustained a “wound-injury
in the nasal area” during the altercation.
Id.
“Within seconds”
deputies responded to “control” the “situation” and Plaintiff was
“quickly examined” by the jail’s doctor who contacted “E.M.S.”
Id. at
3-4.
ambulance
to
Upon
Naples
arrival,
E.M.S.
Community
transported
Hospital
(“NCH”)
Plaintiff
via
where
was
he
examined by the emergency room doctor at approximately 3:30 p.m.
Id. at 4. Plaintiff underwent a CT scan that revealed “multiple
fractures” to Plaintiff’s nasal area.
Id.
The emergency room
doctor advised Plaintiff that the hospital was attempting to
contact an “E.N.T. specialist to conduct the complicated surgery.”
Id. at 5.
After “numerous hours,” the emergency room doctor
informed Plaintiff that an E.N.T. specialist was not available,
and the hospital was discharging Plaintiff with instructions that
health officials at the Collier County Jail follow-up with the
specialist within one to seven days of the discharge.”
Id.
The
emergency room doctor also prescribed antibiotics and 350 mg of
Percocet for pain, which were included with the notes and discharge
instructions for the jail’s health services department.
Id.
A
copy of the “NCH Healthcare System Emergency Department Discharge
Instructions” is appended to the supplement at Exhibit A. In
- 2 -
pertinent part it states:
Follow up in the next 5-7 days for nasal fracture.
Complete
entire
course
of
antibiotics/take
pain
medication as needed for pain.
Stay well hydrated.
Return for changes or worsening symptoms.
Important
twice daily nasal flushes with saline.
Id. at
1.
The
Instructions
provided to Plaintiff as:
capsule);
ondansetron
also
identify
the
prescriptions
clindamycin (clindamycin 150 mg oral
(Zofran
ODT
4
mg
oral
table);
oxycodone/acetaminophen (Percocet 5/325 oral table).
After
“8-12
hours,”
Plaintiff
returned
to
and
Id. at 2.
the
jail’s
infirmary where he was “medically attended” to by Defendant Garmone
and unknown other individuals.
Doc. #2 at 6.
Plaintiff claims
that Defendant Garmone did not provide him any of the medications
prescribed
medication.
by
the
Id.
emergency
room
doctor,
including
the
pain
“Around” 3:00 a.m., two unidentified Collier
County deputies approached Plaintiff and informed him that he was
being transferred to the Department of Corrections’ South Florida
Reception Center (“SFRC”).
Id. at 7.
Plaintiff declared a
medical emergency claiming he was “having severe pain and great
difficulty in breathing” and was taken back to the jail infirmary
where he was examined by Defendant Garmone.
Id.
Defendant
Garmone stated she “could not do anything” and medically cleared
Plaintiff for transport to the SFRC.
Id.
Plaintiff “begged”
Defendant Garmone and the two transport officers and told them he
was “having constant pain and severe difficulty breathing and was
- 3 -
bleeding” but they “ignored” him.
Id.
At 5.45 a.m. Plaintiff was
placed in a van for transport to the SFRC without having received
any of his prescribed medications.
Id.
The Complaint contains
no facts subsequent to Plaintiff’s transfer to SFRC.
The
Complaint
names
the
following
as
defendants:
Armour
Correctional Health Services, Inc., L.P.N. Tina Marie Garmone,
Sheriff Kevin Rambosk, Collier County Jail. and Unknown Shift
Supervisor Deputys [sic].
Doc. #1 at 1, Doc. #2 at 1.
As relief,
Plaintiff seeks $1 million for pain and suffering and reimbursement
of his medical bills.
Doc. #1 at 5. 1
II. Motion to Dismiss and Standard of Review
Defendant Rambosk, who is sued in both his individual and
official capacities, seeks dismissal of the Complaint pursuant to
Fed. R. Civ. P. 12(b)(6).
Doc. #23.
Defendant argues that the
Complaint fails to articulate a claim against him in his official
capacity because it fails to adequately allege a custom, policy or
1
The fact that Plaintiff did not exhaust his administrative
remedies is apparent on the face of the Complaint. Doc. #1 at 67. Plaintiff states he was not able to file a grievance because
he was transferred less than 24-hours after the facts giving rise
to his claim. Id. at 7. The Court is cognizant that the Supreme
Court recently determined that the only exception to the PLRA’s
exhaustion requirement is that administrative remedies are not
“available.”
Rosa v. Blake, __ U.S. __, 136 S. Ct. 1850, 1853
(2016). The Court liberally construes the Complaint as alleging
that the Collier County Jail’s administrative grievance process
was not available to Plaintiff once he was transferred from the
Collier County Jail. Defendant Rambosk does not contend that the
grievance process was still available to Plaintiff despite his
physical transfer from the Collier County Jail.
- 4 -
practice to attribute liability to a governmental entity.
3.
Id. at
The Complaint likewise fails to allege any personal conduct
on behalf of or at the direction of Defendant Rambosk to attribute
liability
to
him
Alternatively,
in
his
Defendant
qualified immunity.
individual
Rambosk
capacity.
claims
he
is
Id.
at
6.
entitled
to
Id. at 9.
In deciding a motion to dismiss, the Court must accept all
factual allegations in a complaint as true and take them in the
light most favorable to the plaintiff.
550 U.S. 544, 556 (2007).
Bell Atlantic v. Twombly,
In general, a complaint must give the
defendants fair notice of what the plaintiff’s claim is and the
grounds upon which it rests to satisfy the pleading requirements
of Fed. R. Civ. P. 8.
Id. at 555.
In addition, the plaintiff’s
claim must be plausible on its face to overcome a Rule 12(b)(6)
motion to dismiss.
Id. at 556.
The court must be able to draw a
reasonable inference from the complaint that the defendant is
liable for the misconduct alleged.
662, 678 (2009).
“raise
a
Ashcroft v. Iqbal, 556 U.S.
While the facts need not be detailed, they must
reasonable
expectation
that
discovery
evidence” in favor of the plaintiff’s claim.
at 556.
will
reveal
Twombly, 550 U.S.
Overall, labels, conclusions, and a formulaic recitation
of the elements of a cause of action are not enough to meet the
plausibility standard.
Id. at 555.
Dismissal is warranted under
Fed. R. Civ. P. 12(b)(6) if the alleged claim is not supported by
- 5 -
enough factual allegations to raise a reasonable expectation of
relief.
Id.
III. § 1983 Principles
Title 42 U.S.C. § 1983 imposes liability on one who, under
color of state law, deprives a person “of any rights, privileges,
or immunities secured by the Constitution and laws[.]” 42 U.S.C.
§ 1983.
To articulate a claim under § 1983, a plaintiff must
allege that: (1) a defendant deprived him of a right secured under
the 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).
To
state
a
claim
for
violating
the
Eighth
Amendment,
a
plaintiff must allege “acts or omissions sufficiently harmful to
evidence
deliberate
indifference
to
serious
Estelle v. Gamble, 429 U.S. 97, 106 (1976).
medical
needs.”
To prove medical
indifference, the plaintiff must demonstrate:
(1) he had a serious medical need (the objective
component);
(2)
the
prison
official
acted
with
deliberate indifference to that serious medical need
(the subjective component); and (3) the official's
wrongful conduct caused the injury.
To satisfy the
subjective component, the plaintiff must prove the
prison official subjectively knew of a risk of serious
harm, the official disregarded that risk, and the
official's conduct was more than gross negligence.
Fischer v. Fed. Bureau of Prisons, 349 F. App'x 372, 374 (11th
Cir. 2009) (citing Goebert v. Lee County, 510 F.3d 1312, 1326-27
(11th
Cir.2007)).
Mere
inadvertence,
- 6 -
negligence,
medical
malpractice, or a simple difference in medical opinion do not rise
to the level of deliberate indifference.
See Estelle, 429 U.S.
at 106; Waldrop v. Evans, 871 F.2d 1030, 1033 (11th Cir. 1989).
In a delay-of-treatment case, the relevant factors include: “(1)
the seriousness of the medical need; (2) whether the delay worsened
the medical condition; and (3) the reason for the delay.”
Goebert,
510 F.3d at 1327.
A supervisory official cannot be held liable under a theory
of respondeat superior or vicarious liability in a § 1983 action.
See Iqbal 556 U.S. at 676; Brown v. Crawford, 906 F. 2d 667, 671
(11th Cir. 1990).
Instead, supervisory liability under § 1983
occurs when the supervisor either (1) personally participates in
the alleged unconstitutional conduct; or (2) when there is a causal
connection between the actions of a supervising official and the
alleged constitutional violation.
1352, 1360 (11th Cir. 2003).
Cottone v. Jenne, 326 F.3d
A causal connection is shown when
(1) “a history of widespread abuse puts the responsible supervisor
on notice of the need to correct the alleged deprivation, and he
or she fails to do so,” or (2) “a supervisor's custom or policy
results in deliberate indifference to constitutional rights,” or
(3) “facts support an inference that the supervisor directed the
subordinates to act unlawfully or knew that subordinates would act
unlawfully and failed to stop them from doing so.”
Valdes v.
Crosby, 450 F.3d 1231, 1237 (11th Cir. 2006) (internal quotations
- 7 -
and citations omitted).
IV.
Analysis
A. Sheriff Rambosk
Assuming arguendo that Plaintiff still had a serious medical
need after his discharge from NCH and prior to his transfer to
SFRC, the Court finds the Complaint, as supplemented, fails to
state a claim for relief against Sheriff Rambosk in either his
individual or official capacities.
Sheriff Rambosk is listed as
a Defendant on the caption of the Complaint and identified under
the section listing the names of the Defendants.
Doc. #1 at 1-2.
In the supplement, Plaintiff generally claims that the Sheriff “is
being biased for not ensuring that all his county jail deputys
[sic] are properly trained to properly handle the type of incident
that occurred with the Plaintiff on June 1 and 2, 2017.”
Doc. #2
at 12, ¶ 37.
To the extent discernable, the Plaintiff predicates liability
on Sheriff Rambosk due to his supervisory position, since there
are no allegations that the Sheriff was personally involved in the
incident, and therefore the individual capacity claims must be
dismissed.
To
allege
a
constitutional
violation
under
a
supervisory liability claim, showing a failure to train is not
enough;
rather,
supervisor
“knew
the
of
plaintiff
a
need
to
must
show
train
that
and/or
the
defendant
supervise
in
a
particular area and ... made a deliberate choice not to take any
- 8 -
action.” Gold v. City of Miami, 151 F.3d 1346, 1350-51 (11th Cir.
1998). For the Sheriff to be aware of a need to train, he must be
aware
of
“a
history
of
widespread
prior
abuse.” Id. at
1351 (citation omitted). Alternatively, the need for training must
be “so obvious” that the failure to train amounts to deliberate
indifference. Id. at 1352.
Ordinarily, to allege a prima facie
case of failure to train, a plaintiff must allege a pattern of
similar constitutional violations that would put the Sheriff on
notice of its inadequate training.
51, 62 (2011).
Connick v. Thompson, 563 U.S.
Here the Complaint as supplemented contains only
a vague allegation that the Sheriff failed to train his officers
to handle “the type of incident” involving Plaintiff.
Plaintiff’s
imprecise failure to train allegation falls woefully short of the
narrow
so-called
“single-incident”
failure
to
train
claims
envisioned by the Supreme Court in Bd. Of Cty. Comm. Of Bryan Cty.,
Oklahoma. v. Brown, 520 U.S. 397, 409 (1997) (clarifying that a
plaintiff could succeed on a single incident if he alleged “a
single violation of a federal rights, accompanied by a showing
that a municipality has failed to train its employees to handle
recurring situations presenting an obvious potential for such a
violation.”).
Additionally,
the
Monell
2
policy
2
or
custom
requirement
Monell v. Dep’t of Soc. Servs. of New York, 436 U.S. 658,
690-91 (1978).
- 9 -
applies to the official capacity claims against the Sheriff as a
governmental entity.
The Complaint and supplement are devoid of
any allegations of a policy, custom or practice.
Consequently,
the Court finds the Complaint as supplemented fails to state a
claim for relief against Sheriff Rambosk in either his individual
or official capacities.
B. Collier County Jail and Unknown Shift Supervisor Deputys
[sic]
To bring a viable § 1983 action, the defendant sued must be
an entity that is subject to being sued. Dean v. Barber, 951 F.2d
1210, 1214 (11th Cir. 1992).
A correctional facility or the jail
is not a proper defendant in a case brought under 42 U.S.C. § 1983
because it does not enjoy a separate legal existence independent
of the County or the Sheriff's Office. Ibid.; Monroe v. Charlotte
County Jail, No. 2:15-CV-729-FTM-99MRM, 2015 WL 7777521, at *2
(M.D.
Fla.
Dec.
3,
2015).
The
capacity
of
a
governmental
corporation to be sued in federal court is governed by the law of
the state in which the district court is located.
at 1214.
Dean, 951 F.2d
Florida law does not recognize a jail facility as a
legal entity separate and apart from the Sheriff charged with its
operation and control.
See generally Chapter 30, Florida Statues.
Thus, the Collier County Jail must be dismissed with prejudice as
a defendant pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).
Dean at
1214 (noting that sheriff's departments and police departments are
- 10 -
not legal entities subject to suit under § 1983); Brannon v. Thomas
County Jail, 280 F. App’x 903, n.1 (11th Cir. 2008) (affirming
dismissal of county jail in § 1983 action noting jail under Georgia
state law is not considered a legal entity).
Included in Plaintiff’s list of Defendants is “Unknown Shift
Supervisor
Deputys”
[sic].
It
appears
that
Plaintiff
is
attempting to state a claim for deliberate indifference against
the individual deputy or deputies who placed him in the transport
van over his objection.
Doc. #2 at 10.
The Complaint and
supplement make clear that Defendant Garmone had medically cleared
Plaintiff for transport despite his objections.
Doc. #2 at 7.
Consequently, Plaintiff cannot show that the transport officer
“subjectively knew of a risk of serious harm” and that “the
official
disregarded
that
risk.”
Prisons, 349 F. App'x at 374.
Fischer
v.
Fed.
Bureau
of
Consequently, the Court dismisses
without prejudice the Unknown Shift Supervisors Deputys [sic]
pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).
C. Defendant Amor Correctional Health Services
Defendant Armor Correctional Health Services appears in the
caption of his Complaint and in the list of Defendants.
at
1-2.
Like
Sheriff
Rambosk,
Plaintiff
in
his
Doc. #1
supplement
generally claims Defendant Armor failure to ensure its employees
were properly trained to follow an emergency doctor’s orders
deprived Plaintiff of his constitutional rights.
- 11 -
Doc. #2 at 13.
Although a private entity, Armor may be held liable under § 1983
because it was tasked with providing medical care to inmates within
the Collier County Jail, which is a “function traditionally within
the exclusive prerogative of the state.”
F.3d 450, 452 (11th Cir. 1997).
corporate
entity,
the
Monell
Buckner v. Toro, 116
Nonetheless, because it is a
policy
discussed above also applies to Armor.
or
custom
requirement
Ibid.
Here, the Complaint and supplement are completely devoid of
any claim that Defendant Garmone’s failure to provide Plaintiff
with his prescribed medication or her decision to clear him for
transport was due to any custom, policy implemented by Armor.
Instead, Plaintiff attributes liability to Armor solely because it
employed
Defendant
Gamone.
A
corporation
cannot
be
held
vicariously liable under § 1983 for any inaction or action taken
by its employees.
McDowell v. Brown, 392 F.3d 1283, 1289 (11th
Cir. 2004); Craig v. Floyd Cty., Ga., 335 F.3d 1326, 1329 (11th
Cir. 2011).
Defendant
Plaintiff’s factual allegations relating solely to
Garmone’s
alleged
failure
to
provide
him
his
prescriptions is simply insufficient to sustain a claim that Armor
has a policy of denying medical care prescribed by emergency room
doctors to inmates, much less that the practice was so widespread
that Armor had notice of such violations and made a “conscious
choice” to disregard them.
1350.
Gold v. City of Miami, 151 F.3d at
Accordingly, Plaintiff's claims against Defendant Armor are
- 12 -
dismissed without prejudice under 28 U.S.C. § 1915(e)(2)(B)(ii).
Accordingly, it is now ORDERED:
1.
Defendant Rambosk’s Motion to Dismiss (Doc. #23) is
GRANTED and Plaintiff’s Complaint (Doc. #1) as supplemented (Doc.
#2)
is
dismissed
without
prejudice
pursuant
to
Fed.
R.
Civ.
P.12(b)(6).
2.
#2)
Plaintiff’s Complaint (Doc. #1) as supplemented (Doc.
against
Defendant
Collier
County
Jail
is
dismissed
with
prejudice pursuant to 28 U.S.C § 1915(e)(2)(B)(ii) and (iii).
3.
#2)
Plaintiff’s Complaint (Doc. #1) as supplemented (Doc.
against
Defendant
Armor
Correctional
Health
Services
and
“Unknown Shift Supervisors Deputys” [sic] is dismissed without
prejudice for failure to state a claim pursuant to 28 U.S.C. §
1915(e)(2)(B)(ii).
DONE and ORDERED at Fort Myers, Florida, this
of March, 2019.
SA: FTMP-1
Copies:
Counsel of Record
- 13 -
19th
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?