S.K. v. Lutheran Services Florida, Inc. et al
Filing
56
OPINION AND ORDER denying 37 motion to dismiss; granting in part and denying in part 25 Motion to Dismiss; denying 27 motion to dismiss; denying 28 motion to dismiss. Counts III, IV, and VIII are dismissed without prejudice to plaintiff to filing a Second Amended Complaint within 30 days of this Opinion and Order. See Opinion and Order for details. Signed by Judge John E. Steele on 5/7/2018. (RKR)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
S.K.,
Plaintiff,
v.
Case No:
2:17-cv-691-FtM-99MRM
LUTHERAN SERVICES FLORIDA,
INC., CHILDREN’S NETWORK OF
SOUTHWEST FLORIDA, L.L.C.,
CAMELOT
COMMUNITY
CARE,
INC.,
PEARL
ARAQUE,
individually,
GWENDOLYN
DOYLE, individually, and UNA
RICHARDSON, individually,
Defendants.
OPINION AND ORDER
This matter comes before the Court on Motions to Dismiss for
Failure to State a Claim filed by Defendants Children’s Network of
Southwest Florida, LLC (CNSF) and Camelot Community Care (CCC)
(Doc. #25); Lutheran Services Florida, Inc. (LSF) (Doc. #27); Pearl
Araque (Doc. #28); and Gwendolyn Doyle (Doc. #37).
responded to each motion (Docs. ##33, 35, 36, 40).
Plaintiff has
For the reasons
set forth below, the Motions are granted in part and denied in
part.
I.
At all relevant times, plaintiff, S.K., was a minor foster
child within the custody of the State of Florida.
S.K. alleges
that defendants failed to provide him with adequate dental care
and treatment, resulting in severe, life-long injuries.
The nine-
count Amended Complaint alleges both common law negligence and
culpable negligence claims, as well as claims under 42 U.S.C. §
1983 for deprivation of plaintiff’s Fourteenth Amendment rights to
adequate medical care and reasonable safety.
(Doc. #23.)
The Amended Complaint sets forth these relevant material
facts: The Florida Department of Children and Families (DCF) is
required by Florida statutes to provide foster care and related
services to children in the custody of the State of Florida.
#23, ¶ 7.)
serve
as
(Doc.
To do so, the DCF contracts with private entities to
lead
agencies
for
community-based
care.
Defendant
Children’s Network of Southwest Florida, LLC (CNSF) contracted
with DCF to provide foster care and related services as the lead
agency for community-based care in Lee and Charlotte Counties,
Florida.
(Id., ¶ 7.)
The Amended Complaint describes CNSF as an
“independent contractor” of the DCF.
Camelot
Community
Care,
Inc.
(CCC)
(Id., ¶ 8.)
owns
the
Defendant
fictitious
name
“Children’s Network of Southwest Florida” and, “on [plaintiff’s]
information and belief” performed foster care and related services
to children, including S.K., in Lee and Charlotte counties.
(Id.,
¶¶ 9, 10.)
In turn, CNSF and/or CCC subcontracted with Lutheran Services
Florida, Inc. (LSF), an independent contractor of CNSF/CCC/DCF, to
provide foster care and related services in Lee and Charlotte
- 2 -
counties.
(Id., ¶¶ 11-14.)
performance of LSF.
CNSF/CCC were required to monitor the
(Id. ¶ 5.)
Defendant Pearl Araque was an
employee of LSF, and was S.K.’s case manager.
(Id., ¶ 17.)
Defendant Gwendolyn Doyle was an employee of LSF and was Araque’s
supervisor.
(Id., ¶ 18.)
Defendant Una Richardson was licensed
by the entity-defendants to provide foster care services in her
home, and provided foster care to S.K. from January 3, 2014 to
July 30, 2014.
(Id., ¶¶ 19, 21, 49, 88.)
On or about October 28, 2013, S.K. and his twin sister were
removed from their biological parents and placed in the custody of
the DCF because S.K.’s serious dental needs were not being met,
and his father was using S.K.’s condition to obtain prescription
pain medication for himself.
(Doc. #23, ¶ 23.)
On October 29,
2013, S.K. was placed in a foster home (Id., ¶ 25), and on November
1, 2013 LSF began providing case management services to S.K.
¶¶ 26-29.)
(Id.,
By November 4, 2013, all defendants except Richardson
knew of S.K.’s dental status and that he needed a root canal or
other procedure to address his dental pain.
(Id., ¶¶ 30-31, 34.)
On November 5, 2013, Araque performed a home visit to S.K.
(Doc. #23, ¶ 35.)
During the visit, S.K. told Araque he was
suffering tooth pain, but Araque but made no notation on the home
visit form, even though such a notation was required by law.
(Id.)
The Amended Complaint details 13 more home visits by Araque from
late 2013 to early May 2014, during which S.K. consistently told
- 3 -
Araque he had dental pain.
Araque consistently failed to note the
complaints of pain in S.K.’s records or obtain treatment for him.
(Id., ¶¶ 37, 39, 41, 42, 43, 46, 52, 55, 56, 61, 65, 70, 77.)
On May 9, 2014, S.K. was seen by a dentist, who recommended
a tooth extraction.
(Doc. #23, ¶¶ 72-75.)
Defendants failed to
follow up (Id., ¶¶ 77, 79-83), and by July 21, 2014, S.K. was
crying during the home visits and telling Araque he was in pain.
(Id., ¶ 86.)
Only then did Araque note that S.K. had a tooth
infection, his dental condition had deteriorated, and he was having
problems in school as a result.
(Id.)
S.K. did not undergo dental surgery until on or about August
20, 2014.
(Doc. #23, ¶¶ 80, 83, 92-93.)
On August 26, 2014, S.K.
was diagnosed with trigeminal neuralgia caused by the delay in his
treatment, a pain disorder that affects the trigeminal nerve
causing episodes of severe, sudden, and shock-like pain in one
side of the face, from which he still suffers.
(Id., ¶¶ 95-96.)
S.K. endured numerous procedures and suffers debilitating pain.
(Id., ¶¶ 98-99.)
II.
Under Federal Rule of Civil Procedure 8(a)(2), a Complaint
must contain a “short and plain statement of the claim showing
that the pleader is entitled to relief.”
Fed. R. Civ. P. 8(a)(2).
This obligation “requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action will not
- 4 -
do.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(citation omitted).
To survive dismissal, the factual allegations
must be “plausible” and “must be enough to raise a right to relief
above the speculative level.”
Id.
See also Edwards v. Prime
Inc., 602 F.3d 1276, 1291 (11th Cir. 2010).
than
an
unadorned,
accusation.”
Ashcroft
This requires “more
the-defendant-unlawfully-harmed-me
v.
Iqbal,
556
U.S.
662,
678
(2009)
(citations omitted).
In deciding a Rule 12(b)(6) motion to dismiss, the Court must
accept all factual allegations in a complaint as true and take
them in the light most favorable to plaintiff, Erickson v. Pardus,
551 U.S. 89 (2007), but “[l]egal conclusions without adequate
factual support are entitled to no assumption of truth.”
v.
Berzain,
omitted).
654
F.3d
1148,
1153
(11th
Cir.
2011)
Mamani
(citations
“Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not suffice.”
Iqbal, 556 U.S. at 678.
consistent
with
a
facially plausible.”
“Factual allegations that are merely
defendant’s
liability
fall
short
of
being
Chaparro v. Carnival Corp., 693 F.3d 1333,
1337 (11th Cir. 2012) (internal citations omitted).
Thus, the
Court engages in a two-step approach: “When there are well-pleaded
factual allegations, a court should assume their veracity and then
determine whether they plausibly give rise to an entitlement to
relief.”
Iqbal, 556 U.S. at 679.
- 5 -
III.
All
defendants
except
Richardson 1 move
respective counts in the Amended Complaint.
to
dismiss
their
Defendants argue that
none of the counts adequately pleads actionable claims.
A.
Claims Against CCC
Defendant
(negligence),
CCC
IV
is
named
(culpable
as
a
defendant
negligence),
and
in
Counts
VIII
(§
III
1983).
Defendant CCC asserts that none of these counts plausibly sets
forth a claim for which relief may be granted under the pleading
standards summarized above.
The Court agrees.
“A claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.”
Iqbal,
556
U.S.
at
678.
CCC
is
the
entity
which
owns
fictitious name “Children’s Network of Southwest Florida.”
#23, ¶ 9.)
the
(Doc.
The Amended Complaint is sketchy, at best, as to CCC’s
actual involvement in the case, and S.K. admits that the codefendant CNSF is a separate entity.
(Doc. #33, p. 6 n. 1.)
CNSF
and CCC are usually lumped together with an “and/or” conjunction.
Given the amorphous nature of the allegations relating to
CCC, S.K. states:
Should discovery in this case clarify which
entity was providing foster care and related
1
Richardson filed an Answer to the Amended Complaint.
#42.)
- 6 -
(Doc.
services to Plaintiff, S.K., and which entity
was the lead community-based care provider in
Lee and Charlotte Counties, Florida, Plaintiff
will dismiss any party who played no part in
the acts alleged, amend his allegations to
delete such party, and would no longer need to
use any “and/or” language and would simply use
“and” in place of the phrase “and/or.”
(Id.)
But this is not the way it works.
In the context of a complaint, plaintiff is not allowed to
use such a shotgun device to haul an entity into federal court and
then use discovery procedures to sort out the facts.
P. 11(b)(3).
Fed. R. Civ.
Additionally, this is not pleading alternative
claims as allowed by Fed. R. Civ. P. 8(d)(2); it is pleading
alternative parties.
In any event, as discussed below with regard
to CNSF, there are insufficient facts alleged relating to the
conduct of CCC or its agents or employees to plausibly state any
of the causes of action.
Accordingly, the motion is granted as
to CCC, and CCC is dismissed without prejudice as to Counts III,
IV, and VIII with leave to amend.
B. Claims Against CNSF
CNSF is named as a defendant in Counts III (negligence), IV
(culpable negligence), and VIII (§ 1983).
Defendant CNSF asserts
that none of these counts plausibly sets forth a claim for which
relief may be granted under the pleading standards summarized
above.
The Court agrees for the same reasons set forth as to CCC.
The Amended Complaint alleges few facts as to conduct by CNSF
- 7 -
or its agents or employees that could plausibly establish the
causes of action.
At best, the Amended Complaint implies that
CNSF is liable for the conduct of its independent contractor, LSF,
and the independent contractor’s employees.
But a contractor such
as CNSF is not liable in tort for the alleged acts or omissions of
its subcontractor’s employees, officers, or agents.
Castello v.
P’ship for Strong Families, Inc., 117 So. 3d 62, 63 (Fla. 1st DCA
2013), citing Fla. Stat. § 409.1671(1)(h).
409.993(2)(a). 2
Additionally,
even
if
See also Fla. Stat. §
liability
is
legally
possible, there are simply insufficient facts as to the conduct of
CNSF or its agents or employees to plausibly set forth the causes
of actions.
Accordingly, the motion is granted as to CNSF, and
CNSF is dismissed without prejudice as to Counts III, IV, and VIII
with leave to amend.
C. Culpable Negligence Claim Against LSF
LSF is named as a defendant in Counts I (negligence), II
(culpable negligence), and V (§ 1983).
Defendant LSF asserts that
Counts II and V do not plausibly set forth claims for which relief
may be granted under the pleading standards summarized above.
The
Court disagrees as to the culpable negligence claim, and will
discuss the § 1983 claim in a moment.
As to Count II, LSF argues that plaintiff has simply taken
2
The Court notes that plaintiff disclaims any attempt to
allege vicarious liability. (Doc. #33, p. 7.)
- 8 -
the conduct described in the Count I negligence claim and added
the description of “culpably negligent” to LSF’s alleged conduct.
The reason for this, defendant surmises, is to avoid the statutory
cap on damages contained in Fla. Stat. §§ 409.1671(j) (2013);
409.993(3)(a) (2014). 3
claim
is
acceptable
alternative counts.
Even if this is so, the culpable negligence
because
a
plaintiff
may
properly
plead
Fed. R. Civ. P. 8(d)(2).
The alternative count, however, must still be sufficiently
plead.
Defendant defines “culpable negligence” from the criminal
law context as “consciously doing an act or following a course of
conduct that defendant must have known, or reasonably should have
known, was likely to cause death or great bodily injury.”
(Doc.
#27, p. 5, citing Logan v. State, 592 So. 2d 295, 298 (Fla. 5th
DCA
1991)).
The
more
applicable
definition
comes
from
the
relevant statutes, which define “culpable negligence” as “reckless
indifference or grossly careless disregard of human life.”
Stat. §§ 409.1671(1)(k); 409.993(3)(b).
Fla.
The Court concludes that
plaintiff has satisfied his pleading burden as to Count II.
The
allegations in the Amended Complaint plausibly set forth a factual
3
Because of the dates of the conduct involved in this case,
two sets of Florida statutes are involved. From the beginning of
the events in this case through June 30, 2014, Florida Statutes §
409.1671 applied.
That statute was repealed effective July 1,
2014, and subsequent conduct was governed by Florida Statutes §§
409.986-.997.
- 9 -
basis for a claim of culpable negligence by LSF. 4
This portion of
the motion to dismiss Count II is denied.
D. Section 1983 Claims
The Amended Complaint alleges § 1983 claims against LSF in
Count V, against Araque in Count VI, against Doyle in Count VII,
and against CNSF/CCC in Count VIII.
These § 1983 claims provide
the only bases for federal court jurisdiction.
Title 42 U.S.C. § 1983 provides, in relevant part:
Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of
any State or Territory or the District of
Columbia, subjects, or causes to be subjected,
any citizen of the United States or other
person within the jurisdiction thereof to the
deprivation of any rights, privileges, or
immunities secured by the Constitution and
laws, shall be liable to the party injured in
an action at law, suit in equity, or other
proper proceeding for redress. . . .
In sum, “[t]o establish a claim under § 1983, a plaintiff must
demonstrate that a person acting under color of state law deprived
him of a federal right.”
(11th Cir. 2016).
Bailey v. Wheeler, 843 F.3d 473, 480
All defendants move to dismiss their respective
§ 1983 claims for various reasons.
4
It is not clear that there is a cause of action for
negligence, given that the statutes limit liability to culpable
negligence and make this the exclusive basis for liability. Fla.
Stat. §§ 409.1671(1)(k) (2013); 409.993(3)(b) (2014). The Court,
however, is not presented with that issue in any of these motions.
- 10 -
(1)
“Persons” Within the Meaning of § 1983
As § 1983 states, in order to incur liability a defendant
must be a “person.”
All § 1983 defendants seek to dismiss the §
1983 claims because they are not “persons” within the meaning of
§ 1983, but rather are “arms” of the State of Florida.
The Amended
Complaint specifically pleads that each of the entity defendants
is a “person” (Doc. #23, ¶¶ 127, 162) and that all defendants were
not a “state agency” within the meaning of Fla. Stat. § 768.28.
(Id., ¶ 16.)
Plaintiff argues that none of these defendants are
an arm of the State, and therefore are “persons” within the meaning
of § 1983.
Alternatively, plaintiff asserts that Florida has
waived defendants’ immunity from suit.
(Doc. #33, p. 12, n.6.)
Defendants base their argument on Will v. Michigan Dep’t of
State Police, 491 U.S. 58 (1989), in which the United States
Supreme Court held that a State is not a “person” within the
meaning of Section 1983.
“Section 1983 provides a federal forum
to remedy many deprivations of civil liberties, but it does not
provide a federal forum for litigants who seek a remedy against a
State for alleged deprivations of civil liberties.
Amendment
immunity.”
bars
such
Id. at 66.
suits
unless
the
State
has
The Eleventh
waived
its
Will noted that the holding “applies only
to States or governmental entities that are considered ‘arms of
the State’ for Eleventh Amendment purposes.”
- 11 -
Id. at 70.
In Florida, the obligation to provide foster care when a child
is involuntarily removed from the parents is on the State, acting
through DCF.
The DCF is undoubtedly a state agency, and is not a
“person” subject to suit under 42 U.S.C. § 1983. 5
Hence, the DCF
has not been named as a § 1983 defendant in this case.
But
the
decision
in
Will
“applies
only
to
States
or
governmental entities that are considered ‘arms of the State’ for
Eleventh Amendment purposes.”
added).
Will, 491 U.S. at 70 (emphasis
It is apparent that none of the § 1983 defendants are the
State of Florida or a governmental entity.
Thus, none of the §
1983 defendants can come within the literal requirements of Will.
Defendants argue, however, that a private entity may be
considered an “arm of the State” if it satisfies the same Eleventh
Amendment
standards
used
to
determine
entity is an “arm of the State.”
whether
a
governmental
The Supreme Court has not
addressed the question of whether a private entity can be an “arm
of the State” in this context.
The Eleventh Circuit on one
occasion found that a private entity was an arm of the State under
the Eleventh Amendment, Shands Teaching Hosp. & Clinics, Inc. v.
5
The DCF is the re-designation of the Florida Department of
Health and Rehabilitative Services, and agency of the State of
Florida. Doe, 1-13 ex rel Doe Sr. 1-13 v. Bush, 261 F.3d 1037,
1042 n.2 (11th Cir. 2001). The Eleventh Circuit has held that the
Florida Department of Health and Rehabilitative Services is immune
under the Eleventh Amendment. Gamble v. Florida Dep’t of Health
and Rehabilitative Servs., 779 F.2d 1509 (11th Cir. 1986).
- 12 -
Beech St. Corp., 208 F.3d 1308 (11th Cir. 2000), but that case
applied a test which has since been abrogated.
Shelton, 840 F.3d 1334, 1337 (11th Cir. 2016).
See Lake v.
Additionally, in
the context of determining whether a private entity was a “state
actor” under § 1983, the Eleventh Circuit stated:
“When a private
entity like PHS contracts with a county to provide medical services
to
inmates,
it
performs
a
function
exclusive prerogative of the state.
traditionally
within
the
In so doing, it becomes the
functional equivalent of the municipality.”
Buckner v. Toro, 116
F.3d 450, 452 (11th Cir. 1997).
For purposes of this motion only, the Court assumes that it
is possible for a private entity to be an arm of the State under
the Eleventh Amendment, and therefore not be a “person” within the
meaning
of
§
1983.
The
question
therefore
becomes
whether
plaintiff has plausibly pled that the private contractor CNSF/CCC
and the private subcontractor LSF are “persons” within the meaning
of § 1983.
As discussed later, the Court further finds that it
is not possible for an employee of a private entity sued in his or
her individual capacity to be an arm of the State.
“Whether a defendant is an ‘arm of the State’ must be assessed
in light of the particular function in which the defendant was
engaged when taking the actions out of which liability is asserted
to arise.”
(en banc).
Manders v. Lee, 338 F.3d 1304, 1308 (11th Cir. 2003)
The specific function at issue in this case is
- 13 -
providing medical care, specifically dental care, to a foster child
who has become the responsibility of the State of Florida.
Whether
a defendant is an “arm of the State” requires an analysis of: “(1)
how state law defines the entity; (2) what degree of control the
State maintains over the entity; (3) where the entity derives its
funds;
and
entity.”
Manders
(4)
who
is
Id. at 1309.
factors
weigh
responsible
for
judgments
against
the
It is defendants’ burden to show that the
in
their
favor.
Miller
v.
Advantage
Behavioral Health Sys., 677 F. App’x 556, 559 (11th Cir. 2017).
First, some background.
Florida
has
“traditionally
At all relevant times, the State of
provided
foster
care
services
children who have been the responsibility of the state.”
Stat. §§ 409.1671(c)1; 409.993(1)(a).
phrases it:
409,
Florida
to
Fla.
As the Amended Complaint
“At all times material hereto, pursuant to Chapter
Statutes,
foster
care
is
a
public
function
traditionally within the exclusive prerogative of the State of
Florida.”
(Doc. #23, ¶ 163.)
Despite this tradition, the Florida Legislature determined
that “outsourcing” was needed for foster care and related services,
which remained “of paramount importance to the state.”
§§ 409.1671(c)1; 409.993(1)(a).
Fla. Stat.
Beginning in January, 2000, the
Florida Legislature decided that DCF would phase-in a plan to
“outsource” the provision of foster care and related services on
- 14 -
a statewide basis, Fla. Stat. § 409.1671(1)(a), and continue to
work towards full outsourcing.
“Outsource”
community-based
was
defined
agencies,”
Fla. Stat. § 409.1671(1)(b).
as
Fla.
“to
contract
Stat.
§
with
competent,
409.1671(1)(a),
who
satisfied certain requirements, Fla. Stat. § 409.1671(1)(e).
It
remains the intent of the Florida Legislature that the DCF provide
child protection and welfare services “through contracting with
community-based care lead agencies.”
Fla. Stat. § 409.986(1)(a).
The DCF was initially authorized, Fla. Stat. § 409.1671(2)(a) (the
department “may” contract), and is now required, Fla. Stat. §
409.996 (the department “shall” contract), to contract for the
“delivery, administration, or management” of foster care services.
Despite
this
contractual
outsourcing,
“[t]he
department
shall
retain responsibility for the quality of contracted services and
programs and shall ensure that services are delivered in accordance
with applicable federal and state statutes and regulations.”
Stat. § 409.1671(1)(a).
See also Fla. Stat. § 409.996.
Fla.
As the
Florida Legislature more recently stated:
The Legislature further finds that the
appropriate care of children is ultimately the
responsibility
of
the
state
and
that
outsourcing such care does not relieve the
state of its responsibility to ensure that
appropriate care is provided.
Fla. Stat. § 409.986(1)(b).
The DCF procures a “community-based
care lead agency” (“lead agency” for short) through competitive
- 15 -
bidding, Fla. Stat. § 409.987(1), and must obtain a five-year
contract with the lead agency.
(a)
Fla. Stat. § 409.987(3).
Entity Defendants:
(1)
How State Law Defines the Entities
The first factor focuses on how Florida law defines a lead
community-based agency and a subcontractor of such an agency.
While federal law governs whether an entity falls within the
Eleventh Amendment, the manner in which state law treats the entity
guides the analysis.
Lightfoot v. Henry Cnty. Sch. Dist., 771
F.3d 764, 769-71 (11th Cir. 2014).
Florida outsources foster care and related services to a “lead
agency,” which is defined as “a single entity with which the
department [of children and families] has a contract for the
provision of care for children in the child protection and child
welfare system in a community that is no smaller than a county and
no larger than two contiguous judicial circuits.”
409.986(3)(d).
agency
must
Fla. Stat. §
See also Fla. Stat. § 409.1671(1)(e).
“[b]e
organized
as
a
Florida
The lead
corporation
or
a
governmental entity,” Fla. Stat. § 409.987(4)(a), be governed by
a board of directors, Fla. Stat. § 409.987(4)(b), and demonstrate
financial responsibility through regular fiscal audits and the
posting of a performance bond, Fla. Stat. § 409.987(4)(c).
While
the lead agency may subcontract for the provision of the services
required by its contract with the DCF, Fla. Stat. § 409.988(j),
- 16 -
there are no particular statutory definitions of or requirements
for such subcontractors other than a requirement to maintain
insurance if the subcontractor is a direct provider of services.
Fla. Stat. § 409.1671(j).
The statutes refer to the entities as “private” or “nongovernmental.”
maintain
The statutes require that “private providers”
liability
insurance,
referring
“nongovernmental ... providers.”
409.993(1)(a).
to
the
entities
as
Fla. Stat. §§ 409.1671(f)(1);
The statute refers to the outsourced projects as
“privatized services.”
Fla. Stat. § 409.1671(4)(a).
The “private
nonprofit agency” is authorized to act as a child’s guardian and
seek
certain
emergency
409.1671(1)(a).
medical
attention.
Fla.
Stat.
§
Further, the reason for the extensive controls
discussed below is precisely because the lead agency remains a
“private entity” performing an important state function.
Fla.
Stat. § 409.986(1)(b).
The Florida Legislature knows how to phrase a statute to
include a private business entity within the meaning of a state
“agency.”
See Econ. Dev. Com’n v. Ellis, 178 So. 3d 118, 119
(Fla. 5th DCA 2015) (noting that Florida’s Public Records Act makes
it the “duty of each agency” to provide access to public records,
Fla. Stat. § 119.01, and that the Act defines “agency” to include
any
private
agency.”
business
entity
“acting
Fla. Stat. § 119.011(2)).
- 17 -
on
behalf
of
any
public
No such expansive definition
was included with regard to a lead agency or a subcontractor
providing foster child care or related services.
The Court finds nothing about the way Florida defines a lead
agency or subcontractor which suggests that Florida law views
either of the entities as an arm of the State.
A lead agency
which is not already a government entity need be little more than
a Florida corporation with a board of directors and a performance
bond.
Few
special
subcontractor.
requirements
exist
by
statute
as
to
a
The first factor weighs against finding that any
of the entities are an arm of the State of Florida.
(2)
Degree of Control the State Maintains Over
the Entities
The second factor examines the degree of control Florida
maintains
over
the
liability arises.
activity
from
which
defendants’
alleged
The question is whether Florida exercises
meaningful control over a lead agency’s and its subcontractor’s
provision of health care (in this case dental care) to a foster
child.
While Florida exercises a high degree of control over the
lead agency, and indirectly, a high degree of control over a
subcontractor, it is not sufficient to weigh in favor of the
entities being considered an arm of the State.
The Florida Legislature has found that “when private entities
assume responsibility for the care of children in the protection
and
child
welfare
system,
comprehensive
- 18 -
oversight
of
the
programmatic,
entities
is
administrative,
essential.”
and
Fla.
fiscal
Stat.
§
operation
of
409.986(1)(b).
those
This
“comprehensive oversight” of a lead agency includes the following:
•
Required compliance with certain statutory directives
concerning the composition and powers of its board of
directors, Fla. Stat. § 409.987(4)(a);
•
Required demonstration of financial responsibility
through an organized plan, Fla. Stat §§ 409.987(4)(c);
•
Required production of “information necessary for
oversight by the department [of children and families]
to the child welfare results-oriented accountability
system required by s. 409.997,”
Fla. Stat. §
409.988(1)(b);
•
Required posting of certain information on the entity’s
website, including the budget and other financial
information, Fla. Stat. § 409.988(1)(d), and specified
other information on a monthly basis, Fla. Stat. §
409.988(1)(k);
•
Required compliance with financial guidelines developed
by the DCF, Fla. Stat. § 409.988(1)(c);
•
Required
ensurance
of
proper
training
and
the
satisfaction of DCF’s minimum employment standards.
Fla. Stat. § 409.988(1)(f);
•
Required maintenance of eligibility to receive all
available federal child welfare funds, Fla. Stat. §
409.988(1)(g);
•
Required compliance with federal and state statutory
requirements
and
agency
rules,
Fla.
Stat.
§§
409.988(1)(i), 409.1671(5)(a);
•
Required possession of an appropriate licensed from the
FDC, Fla. Stat. § 409.988(2)(a);
•
Required submission to graduated penalties if an agency
does not comply with the contract terms, Fla. Stat. §
409.996(1)(b);
- 19 -
•
•
Required
maintenance
of
liability
insurance
for
nongovernmental providers, Fla. Stat. § 409.993(2)(a).
•
Required procurement of commodities or contractual
services in compliance with “the financial guidelines
developed by the department,” Fla. Stat. § 409.992(1).
•
Mandatory allowance of certain types of expenditures and
disallowance of other types, Fla. Stat. § 409.992(2).
•
None
Required annual
409.996(18)(a).
Required limitation on the portion of
administrative employee paid by the
capped at a certain percentage of the
the secretary of the DCF, Fla. Stat. §
of
these
evaluation
statutory
by
requirements
DCF,
Fla.
Stat.
§
the salary of an
State, which is
annual salary of
409.992(3).
applies
directly
to
subcontractor providers.
The State also requires the DCF to monitor the contracts
pursuant to written policies and procedures that address, among
other things, program operations including provider achievement of
performance standards, monitoring of subcontractors, and followup of corrective actions.
Fla. Stat. § 409.1671(2)(a).
The DCF
is required to establish a quality assurance program for the
privatized providers, and perform an annual evaluation.
Stat. § 409.1671(4)(a).
engage in unrelated work.
Fla.
The statute also assumes the entities may
Fla. Stat. § 409.1671(i), (k).
At this
stage of the proceedings, we know little about the day-to-day
- 20 -
operation of the entities in the performance of the contracts, or
any actual exercise of control of such operations by the DCF.
Florida undoubtedly exercises a high degree of control over
the lead agency, and indirectly, a high degree of control over a
subcontractor.
It
appears
that
Florida
may
also
exercise
meaningful control over the entities’ provision of health care to
a foster child.
At this stage of the proceedings, the record has
not been sufficiently developed to support a finding that the
degree of control weighs in favor of the entities being considered
an arm of the State.
(3)
Where the Entities Derive Funds
The third factor considers where the entity derives its funds.
The Court focus primarily on the quantum of funding the State
provides to the entity and, where relevant, the level of control
the State exercises over the entity’s funding structure, budget,
and overall financial autonomy.
Miller, 677 F. App’x at 563
(citations omitted).
It appears that the primary source of funding for the entities
is the State of Florida, although other sources of funding are
contemplated.
“A contract established between the department and
a lead agency must be funded by a grant of general revenue, other
applicable state funds, or applicable federal funding sources.”
Fla. Stat. § 409.990.
Additionally, “[e]ach contract with a lead
agency shall provide for the payment by the department to the lead
- 21 -
agency of a reasonable administrative cost in addition to funding
for
the
provision
of
services.”
Fla.
Stat.
§
409.990(4).
Unexpended state funds in excess of a certain percentage must be
returned to the DCF.
Fla. Stat. § 409.990(5).
The method by
which the State allocates funds to the agencies is set forth in
Section 409.991.
A county, municipality, or special district can
voluntarily fund foster care and related services.
409.1671(1)(a).
Additionally,
community-based
Fla. Stat. §
agencies
are
encouraged to raise their own funds, which may be matched by the
State.
Fla. Stat. § 409.990(6).
At this stage of the proceedings, the record shows little
about the amounts of funding during the relevant time period, the
amounts from other sources, and the proportion of state funding
for each entity.
The Court cannot conclude that this factor weighs
in favor of the entities being considered an arm of the State.
(4)
Liability and Payment of Adverse Judgments
The fourth factor is “whether the State would bear ultimate
responsibility for an adverse judgment.”
777.
Lightfoot, 771 F.3d at
The focus is on “potential legal liability and the risk of
adverse
judgments,
as
opposed
actually pay the judgment.”
to
requiring
that
state
funds
Regents of the Univ. of Cal. v. Doe,
519 U.S. 425, 430-31 (1997).
“[I]t is the entity’s potential
legal liability, rather than its ability or inability to require
- 22 -
a third party to reimburse it, or to discharge the liability in
the first instance, that is relevant.”
Id. at 431.
Florida law requires private entities treated as non-state
agencies to maintain liability insurance.
“[I]nsurance needs to
be available and remain available to nongovernmental foster care
and
related
services
409.993(2)(a).
The
remedy
.
.
.
.”
Fla.
Stat.
§
See also Fla. Stat. §§ 409.1671(h); 409.1671(j).
provided
liability.
providers
Fla.
by
Stat.
this
§§
statute
is
the
409.1671(1)(k);
only
basis
409.993(b).
for
The
statutes impose damages caps on tort suits brought against the
entities, id., and allows a plaintiff to pursue a claim bill with
the Legislature to obtain any excess judgment.
409.1671(h); 409.993(2)(a).
Fla. Stat. §§
”[A] claims bill is a ‘voluntary
recognition of its moral obligation by the legislature.’”
Searcy,
Denney, Scarola, Barnhart & Shipley, etc. v. State, 209 So. 3d
1181, 1189 (Fla. 2017).
“[T]he decision whether or not to pass a
claims bill and pay any or all of a claim is entirely a legislative
function completely independent of judicial intervention.”
State,
Dept. of Envtl. Prot. v. Garcia, 99 So. 3d 539, 545 (Fla. 3d DCA
2011).
process.
This
has
been
described
as
an
“arduous”
legislative
City of Miami v. Valdez, 847 So. 2d 1005, 1006–7 (Fla.
3d DCA 2003).
The Court concludes that this does not weigh in favor of the
entities being an arm of the State.
- 23 -
Any damages award against the
entities
are
capped
by
statute,
are
the
exclusive
basis
for
liability, and have no possibility of coming from the State coffers
unless the State agrees.
In
sum,
the
Court
concludes
that
at
this
stage
of
the
proceedings defendants have not shown that any of the entity
defendants are an arm of the state.
Plaintiff has sufficiently
plead that these defendants are “persons” within the meaning of §
1983.
The motion to dismiss on this basis is therefore denied.
(b)
Individual Defendants
As for the LSF employees sued in their individual capacities,
there is no possibility that they can be an arm of the State
because the very nature of the individual capacity suit negates
such a possibility.
An individual-capacity § 1983 claim seeks to
impose personal liability upon the official for actions taken under
color of state law which caused the deprivation of a federal right.
Kentucky v. Graham, 473 U.S. 159, 165 (1985).
Any award of damages
against an official in his personal capacity can be satisfied only
from the official’s personal assets.
Id.
Thus, defendants sued
in their personal capacity are not in privity with their employer.
Konikov v. Orange County, Fla., 276 F. App’x 916, 918 (11th Cir.
2008).
See also Lewis v. Clarke, 137 S. Ct. 1285, 1288 (2017)(in
suit brought against tribal employee in individual capacity, the
employee is real party in interest and the tribe’s sovereign
immunity is not implicated); Hafer v. Melo, 502 U.S. 21, 30–31
- 24 -
(1991) (“[T]he Eleventh Amendment does not erect a barrier against
suits to impose ‘individual and personal liability’ on state
officials under § 1983.”); Hobbs v. Roberts, 999 F.2d 1526, 1528
(11th Cir. 1993) (noting that Eleventh Amendment immunity does not
extend to “ ‘individual’ or ‘personal’ capacity suits in federal
court”); Gamble v. Fla. Dep't of Health & Rehabilitative Servs.,
779 F.2d 1509, 1512–13 (11th Cir. 1986) (“[T]he Eleventh Amendment
provides no bar to federal court adjudication of suits against
state officers individually.”).
The individual defendants’ motion
to dismiss on this ground is denied.
(2)
Failure to Properly Allege Deliberate Indifference
All § 1983 defendants argue that the Amended Complaint fails
to set forth sufficient facts to allege deliberate indifference to
plaintiff’s constitutional rights.
The constitutional rights at
issue in all of the § 1983 counts are plaintiff’s rights under the
Fourteenth Amendment to proper medical treatment, including dental
treatment, and to not be exposed to unreasonable risk of harm and
physical deterioration.
There is no dispute that a foster child in the care of the
state has constitutional rights to proper medical treatment and to
reasonable safety.
It is clearly established in this circuit that
foster children have a constitutional right to
be
free
from
unnecessary
pain
and
a
fundamental right to physical safety. Taylor
v. Ledbetter, 818 F.2d 791, 794–95 (11th
- 25 -
Cir.1987) (en banc). The state’s action in
assuming the responsibility of finding and
keeping the child in a safe environment places
an obligation on state officials to ensure the
continuing safety of that environment.
Id.
The
failure
to
meet
that
obligation
constitutes a deprivation of liberty under the
fourteenth amendment. Id.
Ray v. Foltz, 370 F.3d 1079, 1082 (11th Cir. 2004).
However,
defendants are not subject to § 1983 liability unless they were
deliberately indifferent to plaintiff’s right to proper medical
care and reasonably safety.
Taylor v. Ledbetter, 818 F.2d at 797.
“Only where it is alleged and the proof shows that the state
officials were deliberately indifferent to the welfare of the child
will liability be imposed.”
Id.
Deliberate indifference is not the same thing as negligence
or carelessness.
Estelle v. Gamble, 429 U.S. 97, 106 (1976).
A
state official acts with deliberate indifference only when the
official disregards a risk of harm of which he or she is actually
aware.
Farmer v. Brennan, 511 U.S. 825, 836 (1994).
In order to
establish deliberate indifference, plaintiffs must allege (and
prove at trial) that the defendant: (1) was objectively aware of
a risk of serious harm; (2) recklessly disregarded the risk of
harm;
and
(3)
this
conduct
was
more
than
merely
negligent.
McElligott v. Foley, 182 F.3d 1248, 1255 (11th Cir. 1999).
As discussed above in the context of the culpable negligence
claim, the Court has found that the allegations in the Amended
- 26 -
Complaint plausibly set forth a factual basis for a claim of
culpable negligence by LSF, defined as “reckless indifference or
grossly
careless
disregard
of
409.1671(1)(k); 409.993(3)(b).
allegations
required
for
human
life.”
Fla.
Stat.
§§
This definition is similar to the
deliberate
indifference.
The
Court
concludes plaintiff has adequately plead deliberate by LSF, and
the motion to dismiss on this basis is denied.
does
not
find
that
plaintiff
indifference as to CNSF/CCC.
plausibly
However, the Court
alleges
deliberate
As discussed above, there are simply
insufficient facts as to the conduct of CNSF or its agents or
employees to plausibly allege that the entities were deliberately
indifferent.
As
plaintiff
to
the
claims
individual
that
defendants,
Araque
and
construed
Doyle
were
liberally,
deliberately
indifferent to S.K.’s serious dental needs and/or deliberately
failed to learn of S.K.’s serious dental needs by delaying his
treatment when they were aware of his condition through numerous
home visits as well as doctor reports.
Plaintiff alleges that
Araque and Doyle knew he was suffering from excruciating pain
because he informed them on the visits, but they failed to act.
As such, the Court finds that plaintiff has pled facts that, taken
as true, sufficiently allege a claim for deliberate indifference
against the individual defendants.
- 27 -
(3)
Failure to Properly Allege Policy or Custom
The entity defendants argue that even if the Amended Complaint
properly
alleges
that
the
private
entity
is
a
“person,”
and
properly alleges deliberate indifference, § 1983 still requires
plausible allegations of a policy or custom which was the moving
force behind the injury (Counts V, VIII).
These defendants assert
that the Amended Complaint fails to allege sufficient facts to
allege such a custom or policy by the entities.
When plaintiff brings a § 1983 claim against a private entity
under contract with the State, plaintiff must allege that the
violation of rights was the result of an official policy or custom.
Buckner v. Toro, 116 F.3d 450, 453 (11th Cir. 1997); German v.
Broward Cnty. Sheriff’s Office, 315 F. App’x 773, 776 (11th Cir.
2009).
Plaintiff must identify the policy or custom which caused
his injury so that liability will not be based upon an isolated
incident, McDowell v. Brown, 392 F.3d 1283, 1290 (11th Cir. 2004)
(citations omitted), and the policy or custom must be the moving
force of the constitutional violation.
Grech v. Clayton Cnty.,
Ga., 335 F.3d 1326, 1330 (11th Cir. 2003).
See also Bd. of the
Cnty. Comm’rs v. Brown, 520 U.S. 397, 403 (1997); Gold v. City of
Miami, 151 F.3d 1346, 1350 (11th Cir. 1998).
“A policy is a
decision that is officially adopted by the municipality, or created
by an official of such rank that he or she could be said to be
acting on behalf of the [entity].”
- 28 -
Cooper v. Dillon, 403 F.3d
1208, 1221 (11th Cir. 2005) (quoting Sewell v. Town of Lake
Hamilton, 117 F.3d 488, 489 (11th Cir. 1997)).
A custom is
established by showing a persistent or widespread practice and an
entity’s actual or constructive knowledge of such customs, though
the custom need not receive formal approval.
Depew v. City of St.
Marys, 787 F.2d 1496, 1499 (11th Cir. 1986).
“Normally random
acts or isolated incidents are insufficient to establish a custom
or policy.”
In
Id.
the
“General
Allegations”
section
of
the
Amended
Complaint, plaintiff alleges that throughout the relevant time
period, LSF, CNSF, and/or 6 CCC were aware that numerous foster
children in the population they served were overdue for dental
examinations and were not receiving medically necessary dental
treatment, causing them to be at a substantial risk of dental harm.
See Doc. #23, ¶ 20 (May 15, 2012 – 102 children); ¶ 24 (Oct. 22,
2013 – 77 children); ¶ 53 (Jan. 26, 2014 – 115 children); ¶ 57
(Feb. 26, 2014 – 116 children); ¶ 78 (May 18, 2014 – 66 children);
¶ 84 (June 16, 2014 – 60 children); ¶ 89 (Aug. 10, 2014 – 73
children).
Plaintiff also specifically alleges that on or about
November 17, 2013 LSF was aware that numerous children were overdue
for dental exams, the number was increasing, causing children to
be at substantial risk of dental harm.
6
(Id., ¶ 38.)
Plaintiff
Dismissal for pleading alternative parties was discussed
above, which plaintiff has been directed to amend.
- 29 -
also alleges that CNSF, and/or CCC were aware that LSF had failed
to provide dental assessments for a number of foster children under
their care, and failed to provide follow up care.
33.)
(Id., ¶¶ 32,
Plaintiff alleges “upon information and belief” that on or
about March 12, 2014, the DCF question CNSF and/or CCC regarding
the excessive number of children with overdue dental services and
required action.
Under
Counts
(Id., ¶ 62.)
V
and
VIII,
plaintiff
claims
that
S.K.’s
constitutional rights were violated due to the following official
acts and/or customs of LSF, CNSF, and/or CCC, which were persistent
and widespread:
•
Failing to provide dental screenings and examinations to
assess for serious dental needs for children in its care,
including S.K.;
•
Failing to ensure that children in its care, including S.K.,
were provided with recommended and necessary dental treatment
in accordance with professional judgment.
•
Failing to take emergency corrective action to ensure that
all children in its custody, including S.K., had timely dental
examinations to prevent dental conditions from deteriorating;
•
Failing to take emergency corrective action to ensure that
all children in its custody, including S.K. had timely dental
treatment to prevent dental conditions from deteriorating;
•
Failing to ensure provision of dental services to children in
its custody, including S.K., who had identified, known dental
conditions and treatment needs; and
•
Failing to take emergency corrective action to ensure that
supervisory reviews were performed for all children in its
custody, including S.K., in a qualitative manner with
appropriate directives given to case managers to ensure that
- 30 -
appropriate medical and dental services were provided to such
children.
(Doc. #23, ¶¶ 130, 165.)
Plaintiff alleges that the entity
defendants had knowledge of the policies and/or customs described
above.
(Id., ¶¶ 131, 166.)
The entity defendants argue that plaintiff fails to include
allegations grounded in fact to show that any children were harmed;
rather, all plaintiff has provided is a list that is conclusory in
nature, and does not cite any prior instances of alleged misconduct
or
any
specific
practices.
examples
of
the
persistent
and
widespread
(Doc. #25, p. 14; Doc. #27, pp. 14-15.)
Contrary to the entity defendant’s assertions, the Court
finds that plaintiff has sufficiently alleged a policy or custom
that was the moving force behind the failure to provide plaintiff
and other foster children with adequate dental care.
Plaintiff
has alleged more than mere isolated incidents as plaintiff states
in detail numerous instances where foster children were overdue
for dental examinations and put at risk of dental harm (Doc. #23,
¶¶ 20, 24, 32, 33, 38, 53, 57, 78, 84, 89), and those allegations
are incorporated by reference into Counts V and VIII (Id., ¶¶ 125,
160).
S.K.
Taking these allegations as true, the Court concludes that
has
adequately
pled
a
§
1983
claim
against
the
entity
defendants for violating S.K.’s constitutional rights to proper
- 31 -
medical treatment and reasonable safety via an official custom or
policy.
Accordingly, it is hereby
ORDERED AND ADJUDGED:
1.
Defendants Children’s Network of Southwest Florida, LLC
and Camelot Community Care, Inc.’s Motion to Dismiss (Doc. #25) is
GRANTED IN PART AND DENIED IN PART.
Counts III, IV and VIII are
dismissed without prejudice to plaintiff filing a Second Amended
Complaint within thirty (30) days of this Opinion and Order.
2.
Defendant
Lutheran
Services
Florida,
Inc.
Motion
to
Dismiss (Doc. #27) is DENIED
3.
Pearl Araque’s Motion to Dismiss (Doc. #28) is DENIED.
4.
Gwendolyn
Doyle’s
Motions
to
Dismiss
(Doc.
#37)
is
DENIED.
5.
A second amended complaint, if filed, shall set forth
all causes of actions against all defendants in a single document,
including the defendant who has already answered.
DONE and ORDERED at Fort Myers, Florida, this
May, 2018.
Copies:
Counsel of Record
- 32 -
7th
day of
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