Thomas et al v. City of Jacksonville
Filing
123
ORDER granting 95 Defendants' Motion for Summary Judgment as to Counts I through XIII of the 54 Fourth Amended Complaint. The Clerk is directed to enter summary final judgment in favor of Defendants and against Plaintiffs, and close the file. Signed by Judge Timothy J. Corrigan on 8/3/2017. (ALB)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
MOZELLE J. THOMAS, as personal
representative of the Estate of
Javon Thomas, deceased and
JALYNNE SANTIAGO, as personal
representative of the Estate of
Javon Thomas, deceased,
Plaintiffs,
v.
Case No. 3:13-cv-737-J-32MCR
CITY OF JACKSONVILLE, et al.,
Defendants.
ORDER
Javon Thomas was arrested and placed in Jacksonville’s John E. Goode
Pretrial Detention Facility on July 29, 2010. (Doc. 54 ¶¶ 21, 23.) The next
morning, while in the City’s custody, he suffered a seizure. (Doc. 54 ¶¶ 40, 55.)
Jacksonville Fire and Rescue Department arrived to transport him to a
hospital, but it was too late; Thomas died on the way to the hospital. (Doc. 54
¶¶ 55-57.) Plaintiffs, representatives of Thomas’ estate, sued the City and
several individual Defendants 1 in their individual capacities for the events
Then-Sheriff Rutherford; Corrections Officers (“COs”) Simington,
Clifton, Avery, Wetherbee, Soles, McDonald, Vazquez, and Baltes; Nurses
Singleton and Baker; and Dr. Joshi.
1
leading up to his death. All Defendants have jointly moved for summary
judgment (Docs. 95, 117), which Plaintiffs oppose (Docs. 110, 114).
I.
FACTS2
On July 29, 2010, officers of the Jacksonville Sheriff’s Office (“JSO”)
arrested Thomas, placed him in a vehicle with the windows rolled up, and left
him without air conditioning, food, or liquids for about four hours. During that
time, one of Thomas’ neighbors notified the officers that Thomas appeared to be
disoriented, but the officers told her to mind her own business. The officers did
not investigate Thomas’ health status or provide him with medical care before
transporting him to the Pretrial Detention Facility (“PTDF”).3
After completing intake procedures, including a physical exam during
which Thomas expressly denied a history of seizures (Doc. 95-1 at 2), Thomas
was booked into the PTDF. Shortly before 7:00 a.m. on July 30, 2010,
Corrections Officer (“CO”) Avery alerted COs Clifton and Williams that Thomas
was in medical distress in his cell and a signal 17 (medical emergency) radio
call was issued. Multiple COs responded to Thomas’ cell a few minutes after the
call and found him on an upper bunk bed with mucus and saliva on his face and
2
The facts are stated in the light most favorable to Plaintiffs.
Though the circumstances of this prolonged detention in the hot patrol
car raise red flags, Plaintiffs chose not to sue the arresting officers or assert
claims arising out of this detention.
3
2
a blank look in his eyes; they attempted to move Thomas from the upper to the
lower bunk.
Medical staff, including Nurse Singleton, also reported to Thomas’ cell in
response to the emergency call. Thomas’ arms were flailing and his legs were
kicking, and the COs decided to restrain Thomas for his own safety, their safety,
and that of medical personnel. Nurse Singleton agreed with the decision to
restrain him. COs held Thomas’ arms but he continued flailing, so they placed
Thomas in handcuffs. CO Sergeant Baltes ultimately decided that Thomas
should be placed in a four-point restraint, meaning a physical restraint with
both his hands and ankles cuffed and a chain connecting the two sets of cuffs.
Nurse Singleton believed that Thomas was suffering from toxic ingestion, not a
seizure, and agreed with the additional restraint. Once Thomas was restrained,
he was put on a stretcher without incident and taken to the detention center’s
health clinic.
In the clinic, Dr. Joshi ordered Nurse Singleton to administer to Thomas
a shot of Zyprexa. Shortly after receiving the shot, Thomas suffered a gran mal
seizure. Paramedics were called to transport Thomas to the hospital, but he
died on the way. The cause of death was listed as a seizure disorder of unknown
3
origin.4 The Medical Examiner’s Report also states that Thomas’ urine tested
positive for cocaine and cannabis.
Plaintiffs allege that the CO Defendants were deliberately indifferent to
Thomas’ serious medical needs, and that medical staff were negligent in
providing inadequate medical care to Thomas both by allowing him to remain
restrained during his gran mal seizure and administering Zyprexa outside the
confines of a registered health care facility. All Defendants move for summary
judgment, arguing that there are no genuine issues of material fact, as there is
no evidence that any Defendants were deliberately indifferent or otherwise
violated Thomas’ civil rights; Plaintiffs failed to comply with certain pre-suit
notice requirements; and the individual Defendants are entitled to qualified
immunity.
II.
STANDARD OF REVIEW
Summary judgment is proper “when the pleadings, depositions, answers
to interrogatories, and admissions on file, together with the affidavits, if any,
show that there is no genuine issue as to any material fact and that the moving
Although Plaintiff denied a history of seizures during his PTDF intake
physical exam (Doc. 95-1 at 2), the autopsy includes a diagnosis of “History of
seizures” (Doc. 95-8 at 5). While these appear inconsistent, a Supplemental JSO
Report states that on Friday, July 30, 2010, at 12:45 p.m., JSO Detectives met
with Thomas’ family at Shands hospital as part of a death notification
procedure and Thomas’ mother informed them that he had a history of seizures.
(Doc. 114-12 at 43.) Neither Plaintiffs nor Defendants address this issue, so the
Court will not consider it further.
4
4
party is entitled to judgment as a matter of law.” Josendis v. Wall to Wall
Residence Repairs, Inc., 662 F.3d 1292, 1314 (11th Cir. 2011); Fed. R. Civ. P.
56(a), (c). The inquiry is “whether the evidence presents a sufficient
disagreement to require submission to a jury or whether it is so one-sided that
one party must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 251-52 (1986). The movant bears the burden of showing the absence
of dispute as to material facts, and upon such a showing the burden shifts to
the non-moving party to establish that a genuine dispute exists. Celotex Corp.
v. Catrett, 477 U.S. 317, 323-24 (1986). The evidence must be viewed in favor of
the non-moving party, and all inferences drawn in his favor. Anderson, 477 U.S.
at 255.
“[W]hen the moving party has carried its burden under Rule 56(c), its
opponent must do more than simply show that there is some metaphysical
doubt as to the material facts.” Matsushita Elec. Indus. Co., Ltd.v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986) (footnote omitted). “Although the existence of a
genuine issue of material fact precludes judgment as a matter of law, a jury
question does not exist because of the presence of a mere scintilla of evidence.”
Gold v. City of Miami, 151 F.3d 1346, 1350 (11th Cir. 1998) (quotation marks
omitted).
5
III.
LAW
A.
The Federal Claims5
1.
Claims against Individual Defendants
Count IV alleges a violation of 42 U.S.C. § 1983 in that the CO Defendants
acted with deliberate indifference to Thomas’ serious medical needs by ordering
his physical restraint, using excessive force against him, failing to obtain
immediate medical treatment for him, and improperly supervising other
officers, in violation of the Eighth and Fourteenth Amendments. (Doc. 54 ¶¶
100, 102.) Plaintiffs allege that the CO Defendants identified the situation as a
medical emergency but did not know the protocol for dealing with an inmate
who suffers a seizure. (Doc. 54 ¶¶ 104-07.) Count V alleges the same violations
of Thomas’ Fourth, Fifth, Eighth, and Fourteenth Amendment rights, but adds
allegations regarding City policies (which appear to be redundant to Count VI,
brought against the City). (Doc. 54 ¶¶ 108-15.)
The Fourth Amended Complaint (“FAC”) (Doc. 54) is largely unclear,
and Plaintiffs’ Response to the motion for summary judgment is deficient. There
are very few citations to the record, which makes it difficult for the Court to
evaluate the response. See Fed. R. Civ. P. 56(c)(1)(A) (the party arguing the
existence of a genuine issue of material fact must support the assertion with
citations to the record); Celotex, 477 U.S. at 325 (where moving party
demonstrates lack of evidence supporting the non-moving party’s case, the nonmoving party must come forward with specific facts showing a genuine dispute);
Matsushita, 475 U.S. at 587 (to show genuine issue, non-moving party must
provide support by identifying sufficient evidence in the record).
5
6
To prevail on a claim under section 1983, Plaintiffs must show that
Defendants deprived Thomas of a constitutional right under color of state law.
Melton v. Abston, 841 F.3d 1207, 1220 (11th Cir. 2016). Plaintiffs’ claims in
Counts IV and V can be broken down into two groups of alleged Fourteenth
Amendment violations: deliberate indifference to Thomas’ serious medical
needs and excessive force.6
To prevail on a claim for deliberate indifference, Plaintiffs must show that
Thomas had a serious medical need, the Defendants acted with deliberate
indifference to that need, and causation. Melton, 841 F.3d at 1220; Dang v.
Sheriff, Seminole Cnty. Fla., 856 F.3d 842, 850 (11th Cir. 2017) (“To prevail on
his § 1983 claim for inadequate medical treatment, Dang must show (1) a
serious medical need; (2) the health care providers’ deliberate indifference to
that need; and (3) causation between the health care providers’ indifference and
Because Thomas was a pretrial detainee, Plaintiffs’ claims for
deliberate indifference are governed by the Fourteenth Amendment’s Due
Process Clause rather than the Eighth Amendment. Melton, 841 F.3d at 1220.
The applicable standard, however, is the same. Id.; Dang, 856 F.3d at 849-50
(“As a pretrial detainee, Dang alleges inadequate medical care under the
Fourteenth Amendment rather than the Eighth Amendment. Nevertheless,
Dang’s claims are evaluated under the same standard as a prisoner’s claim of
inadequate care under the Eighth Amendment.” (citations omitted)); Fennell v.
Gilstrap, 559 F.3d 1212, 1216 n.5, 1217 (11th Cir. 2009) (jailer’s use of force
against a pretrial detainee is governed by the Fourteenth Amendment, not the
Fourth or Eighth Amendments; although standard for excessive force claims is
the same under the Fourteenth and Eighth Amendment, it is higher than that
of a Fourth Amendment excessive force claim).
6
7
Dang’s injury.”). “A serious medical need is considered one that has been
diagnosed by a physician as mandating treatment or one that is so obvious that
even a lay person would easily recognize the necessity for a doctor’s attention.”
Id. at 1221-22. The CO Defendants do not contest that Thomas had an
objectively serious medical need, but instead argue that Plaintiffs have failed
to show deliberate indifference.
For an official to be deliberately indifferent to a prisoner’s medical need,
he must subjectively know of the risk of serious harm to the prisoner and
disregard that risk with conduct that goes beyond negligence. Dang, 856 F.3d
at 850; Melton, 841 F.3d at 1223; Bingham v. Thomas, 654 F.3d 1171, 1175-76
(11th Cir. 2011). “An official disregards a serious risk by more than mere
negligence when he [or she] knows that an inmate is in serious need of medical
care, but he [or she] fails or refuses to obtain medical treatment for the inmate.”
Dang, 856 F.3d at 850 (alterations in original) (quotation marks omitted).
Summary judgment in favor of Defendants is warranted unless Plaintiffs
present evidence of each element. Melton, 841 F.3d at 1223.
“Deliberate indifference must be more than a medical judgment call or an
accidental or inadvertent failure to provide adequate medical care.” Clas v.
Torres, 549 F. App’x 922, 923 (11th Cir. 2013) (citing Estelle v. Gamble, 429
U.S. 97, 105-06 (1976)). Instead, the official must either provide grossly
inadequate care, decide to take an easier but less effective course of treatment,
8
or provide medical care that is so cursory that it is essentially not treatment at
all. Melton, 841 F.3d at 1223; Bingham, 654 F.3d at 1175-76. “A defendant who
unreasonably fails to respond or refuses to treat an inmate’s need for medical
care or one who delays necessary treatment without explanation or for nonmedical reasons may also exhibit deliberate indifference.” Melton, 841 F.3d at
1223. “However, medical treatment violates the constitution only when it is so
grossly incompetent, inadequate, or excessive as to shock the conscience or to
be intolerable to fundamental fairness.” Dang, 856 F.3d at 850 (quotation marks
omitted).
“In considering a deliberate indifference claim, [e]ach individual
Defendant must be judged separately and on the basis of what that person
knows.” Melton, 841 F.3d at 1224 (alteration in original) (quotation marks
omitted). “[I]mputed or collective knowledge cannot serve as the basis for a
claim of deliberate indifference.” Dang, 856 F.3d at 850 (quotation marks
omitted) (alteration in original). Therefore, “a genuine issue of material fact
exists only if the record contains evidence, albeit circumstantial, of such
subjective awareness” of each Defendant. Melton, 841 F.3d at 1224 (quotation
marks omitted).
There is no evidence in the record—indeed, nothing other than Plaintiffs’
conclusory, unsupported allegations—that any of the individual Defendants’
conduct rose to the level of deliberate indifference. Specifically, there is no
9
evidence that any of the named Defendants had the requisite subjective
knowledge and acted with the requisite level of culpability. To the extent
Plaintiffs allege and attempt to show that the CO Defendants failed to get
immediate medical treatment for Thomas, that allegation is belied not only by
other allegations of the FAC, but also by the record evidence.
The record shows that Defendants summoned and Thomas received
medical attention, and there is no evidence that they delayed in doing so.7 The
CO Defendants arrived at Thomas’ cell in response to a medical emergency call,
and “several nurses” also responded. COs put Thomas on a stretcher and took
him to the clinic so he could receive treatment. The nurses attempted to take
Thomas’ vital signs and begin treatment in his cell, but were unable to do so
until after Thomas was restrained. Even though some CO Defendants testified
that they believed Thomas was, or may have been, having a seizure in his cell,
there is no evidence that these Defendants failed to summon medical care or
otherwise exhibited behavior that constituted deliberate indifference. Nor is
there any evidence that these Defendants are qualified to render medical
opinions. As for the medical staff, the only evidence is the testimony of Nurse
Plaintiffs intimate that other inmates notified the COs of Thomas’
distress but that the COs delayed calling medical personnel. However, the
record does not support this assertion. While the inmates who alerted the COs
to Thomas’ distress said Thomas had been ill during the night, there is no
evidence that they alerted the COs until the next morning.
7
10
Singleton, who testified that, based on her knowledge and experience, Thomas’
behavior in his cell was inconsistent with a seizure and she did not believe he
was having one. In particular, Nurse Singleton identified Thomas’ ability to talk
and sit up in bed as additional indicators that he was not having a seizure at
that time.
The FAC at most plausibly pleads mere negligence, which is well below
the level required for deliberate indifference. Even if the FAC had sufficiently
alleged deliberate indifference, such allegations were not borne out by the
evidence. Without evidence that the individual Defendants acted with
deliberate indifference, they are entitled to qualified immunity and summary
judgment is warranted on this claim. Dang, 856 F.3d at 851-53 (finding, under
somewhat analogous factual circumstances, that individual medical staff
defendants were not deliberately indifferent to plaintiff’s medical needs and
therefore were entitled to qualified immunity); Williams v Garjales, No. 5:14cv-10-Oc-10PRL, 2016 WL 3390459, at *9 (M.D. Fla. Mar. 14, 2016) (finding
individual defendants entitled to summary judgment based on qualified
immunity as to plaintiff’s claim for deliberate indifference to his medical needs
where plaintiff “failed to demonstrate that each Defendant’s response to his
medical needs, and the care provided to him, was so inadequate as ‘to constitute
an unnecessary and wanton infliction of pain,’ and was not ‘merely accidental
inadequacy, negligence in diagnosis or treatment, or even medical malpractice
11
actionable under state law.’ In fact, it appears that rather than inadequate or
negligent, the facts surrounding Plaintiff’s record of care demonstrate that the
medical staff … was responsive regarding plaintiff’s medical needs.” (quoting
Taylor v. Adams, 221 F.3d 1254, 1258 (11th Cir. 2000)), adopted by 2016 WL
3364967 (M.D. Fla. June 17, 2016).
In addition to deliberate indifference, Plaintiffs allege that the CO
Defendants used excessive force when they placed Thomas in a four-point
restraint and kept him in the restraint throughout his seizure.8 “The Supreme
Court instructs that in deciding whether force deliberately used against a
pretrial detainee is constitutionally excessive in violation of the Fourteenth
Amendment, ‘the pretrial detainee must show only that the force purposely or
knowingly used against him was objectively unreasonable.’” Shuford v. Conway,
666 F. App’x 811, 815-16 (11th Cir. 2016) (quoting Kingsley v. Hendrickson, --U.S. ---, 135 S. Ct. 2466, 2473 (2015)); Johnson v. Conway, --- F. App’x ----, No.
16-12129, 2017 WL 2080251, at *4 (11th Cir. May 15, 2017) (same); Simpkins
v. Hall, No. 2:13-cv-586-FtM-29CM, 2016 WL 1546448, at *5 (Apr. 15, 2016)
(“In deciding whether the force used was, constitutionally speaking, excessive,
this Court applies an objective standard.” (citing Kingsley, 135 S. Ct. at 2472)).
Although the FAC includes this allegation, Plaintiffs fail to address this
claim at all in their Response, instead solely arguing that they have sufficiently
established deliberate indifference to survive summary judgment.
8
12
A plaintiff need not show the officer’s subjective awareness or state of mind;
instead, “[t]he objective reasonableness determination must be made ‘from the
perspective of a reasonable officer on the scene.’” Shuford, 666 F. App’x at 816
(quoting Kingsley, 2472-73); Johnson, 2017 WL 2080251, at *4. Thus, plaintiffs
asserting § 1983 excessive force claims under the Fourteenth Amendment are
no longer required to show that the defendants applied the force for the purpose
of causing harm. Id. (recognizing that “the standard [the Eleventh Circuit]
previously used to determine whether a defendant used excessive force under
the Fourteenth Amendment—which required the plaintiff to show that the
defendant applied the force ‘maliciously or sadistically for the very purpose of
causing harm,’ see Bozeman v. Orum, 422 F.3d 1265, 1271 (11th Cir. 2005)—
has been abrogated by Kingsley.”).9
Whether Defendants’ conduct was objectively reasonable depends on the
particular facts and circumstances of the case. Kingsley, 135 S. Ct. at 2473. To
determine whether force was applied with objective reasonableness, courts
consider: “the relationship between the need for the use of force and the amount
of force used; the extent of the plaintiff's injury; any effort made by the officer
to temper or to limit the amount of force; the severity of the security problem at
Notably, neither party addresses the new standard set forth in
Kingsley. Defendants rely solely on the lack of a “clearly established” right to
be free from four point restraints, while Plaintiff’s Response fails to address
excessive force at all.
9
13
issue; the threat reasonably perceived by the officer; and whether the plaintiff
was actively resisting.” Johnson, 2017 WL 2080251, at *4 (quoting Kingsley,
135 S. Ct. at 2473); Shuford, 666 F. App’x at 816 (quoting Kingsley, 135 S. Ct.
at 2473) (same). The Court must “make this determination from the perspective
of a reasonable officer on the scene, including what the officer knew at the time,
not with the 20/20 vision of hindsight.” Kingsley, 135 S. Ct. at 2473. On this
record, Defendants’ use of force was an objectively reasonable effort to restrain
Thomas so he could be provided medical treatment.10
Even if the Court were to assume arguendo that Defendants committed a
constitutional violation, the excessive force claim still fails as a matter of law
because the CO Defendants are entitled to qualified immunity. “Qualified
immunity protects municipal officers from liability in [section] 1983 actions ‘as
long as their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.’”11 Lewis
v. City of W. Palm Beach, Fla., 561 F.3d 1288, 1291 (11th Cir. 2009) (quoting
Whether medically it was the right thing to do is less certain; however,
the COs restrained Thomas under the supervision of medical personnel.
10
An officer must have been acting within his discretionary authority to
benefit from qualified immunity. Here, is uncontested that the COs were acting
within their discretionary authority. Once an official establishes that he was
acting within his discretionary authority, the burden shifts to the plaintiff to
show that the defendant is not entitled to qualified immunity. Hadley v.
Gutierrez, 526 F.3d 1324, 1329 (11th Cir. 2008).
11
14
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). To show that a right was clearly
established such that the defendant had fair warning that his conduct was
unlawful, a plaintiff may cite to case law that is similar enough to put a
reasonable official on notice that his actions violated a right; point to a broad,
clearly established principle that governs the novel facts of the case; or
demonstrate that the conduct is such an obvious violation of a right that there
was no need for prior case law to put the official on notice. Terrell v. Smith, 668
F.3d 1244, 1255 (11th Cir. 2012). This Court can look only to decisions of the
Supreme Court, the Eleventh Circuit, and the Florida Supreme Court to
determine whether a right was clearly established at the time. Id.; Coffin v.
Brandau, 642 F.3d 999, 1013 (11th Cir. 2011).
Plaintiffs have not cited a single case that would put the Defendants on
notice that their restraint of Thomas in these circumstances would violate his
constitutional rights, nor have they pointed to any broad principle that governs
the novel facts of this case. Indeed, the most similar precedent on the issue
involves the repeated rejection of claims of excessive force arising out of the
restraint of arrestees and prisoners. See, e.g., Garrett v. Athens-Clarke Cnty.,
Ga., 378 F.3d 1274 (11th Cir. 2004) (finding no constitutional violation, even
under the lower Fourth Amendment standard, where an arrestee died after
being placed in a four-point restraint); Williams v. Burton, 943 F.2d 1572 (11th
Cir. 1991) (finding no constitutional violation where restraints and gag used for
15
over 28 hours). Moreover, there is no clearly established prohibition against
restraining a prisoner who is flailing his arms and kicking his legs (even if such
movement was involuntary). The CO Defendants are therefore entitled to
qualified immunity as to Plaintiffs’ excessive force claim.
2.
Claims against the City
Count VI alleges that the City is liable under section 1983 for violations
of Thomas’ constitutional rights through failure to train and deliberate
indifference. (Doc. 54 ¶¶ 116-31.) There are “strict limitations on municipal
liability under section 1983.” Gold, 151 F.3d at 1350. A municipality cannot be
held liable under section 1983 based on respondeat superior. Monell v. New
York City Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978). Instead, “[p]laintiffs
who seek to impose liability on local governments under [section] 1983 must
prove that ‘action pursuant to official municipal policy’ caused their injury.”
Connick v. Thompson, 563 U.S. 51, 60-61 (2011) (quoting Monell, 436 U.S. at
691). For the City to be liable, there must be an underlying constitutional
violation caused by an official municipal policy, id., and the policy or custom
must be the “moving force” behind the violation. City of Canton v. Harris, 489
U.S. 378, 389 (1989) (quotation marks omitted). Although not entirely clear,
Count VI appears to claim municipal liability based, at least in part, on a failure
to train its employees. (Doc. 54 ¶¶ 120, 122.)
16
Because “a municipality rarely will have an express written or oral policy
of inadequately training or supervising its employees,” Plaintiffs can show a
municipal policy “by showing that the municipality’s failure to train evidenced
a ‘deliberate indifference’ to the rights of its inhabitants.” Gold, 151 F.3d at
1350. “To establish a ‘deliberate or conscious choice’ or such ‘deliberate
indifference,’ a plaintiff must present some evidence that the municipality knew
of a need to train and/or supervise in a particular area and the municipality
made a deliberate choice not to take any action.” Id. A city can only be held
liable under section 1983 for a failure to train where it is aware of a pattern of
constitutional violations or where the likelihood of such a violation is so high
that the need for training is obvious. Lewis, 561 F.3d at 1293.
Plaintiffs have not shown the existence of any prior failure to
appropriately address or treat seizures that would have placed the City on
notice of the need for training. Nor is the likelihood for constitutional violation
so high that the need for training is obvious.
To the extent that this claim is based on the City’s alleged failure to
provide the CO Defendants with a written policy on inmates with seizures, such
argument fails; Plaintiffs have attached to the FAC a copy of JSO’s written
policy on medical emergencies, which details generally not only how to identify
medical emergencies, but also the protocol for handling them. (See Doc. 54 at
52-59.) Moreover, even if Defendants somehow did not follow this policy, “[a]
17
violation of Jail policy does not in itself rise to the level of deliberate
indifference.” Dang, 856 F.3d at 852.
Plaintiffs also appear to allege that the City has an unofficial policy of
depriving detainees of medical care. “Official municipal policy includes the
decisions of a government’s lawmakers, the acts of its policymaking officials,
and practices so persistent and widespread as to practically have the force of
law.” Connick, 563 U.S. at 61. Plaintiffs have not shown the existence of any
unlawful decision by the City’s lawmakers or any unlawful act by its
policymaking officials. Instead, to support their contention that the City’s
practice of depriving detainees of medical care is so persistent and widespread
as to practically have the force of law, Plaintiffs identify only a single instance
in which a detainee failed to receive adequate medical care. (See Doc. 54 ¶
124.a.). Plaintiffs allege that in 2009, JSO officers arrested William Merrifield,
who informed them that he was diabetic and insulin dependent. The officers
transported Merrifield to the state courthouse for an arraignment, during
which time he showed symptoms of physical and mental impairment. Merrifield
went into diabetic shock at the courthouse and ultimately died. 12 Even
accepting these allegations at face value, two instances of alleged failure to
Plaintiffs cite two other cases, both of which involved detainees who
were beaten by officers. (Doc. 54 at ¶¶ 124.b., 124.c.) As neither example reflects
on the City’s policies regarding medical care, they are irrelevant to the analysis.
12
18
provide medical care, including the one at issue in this case, is insufficient to
show a municipal policy or custom. See Depew v. City of St. Marys, Ga., 787
F.2d 1496, 1499 (11th Cir. 1986) (“[I]solated incidents are insufficient to
establish a custom or policy.”); see also Pedraza v. Hall Cnty., Ga., No. 2:14-CV00311-RWS, 2015 WL 1478930, at *3 (N.D. Ga. Mar. 31, 2015) (holding that
plaintiff failed to allege a custom or policy where it only alleged two previous
incidents of similar misconduct).
3.
Claims against Sheriff Rutherford
Counts IV and V, which allege violations of section 1983, also name as a
Defendant then-Sheriff Rutherford in his individual capacity.13 (Doc. 54 at ¶¶
99-107, 108-15). A supervisor can only be held personally liable under section
1983 where he personally participates in the constitutional violation or where
there is a causal connection between his actions and the constitutional
violation. Gray ex rel. Alexander v. Bostic, 458 F.3d 1295, 1308 (11th Cir. 2006).
As Rutherford is neither alleged to have had any personal involvement in the
events involving Thomas nor have Plaintiffs shown that he had any such
involvement, the sole question is whether Plaintiffs have shown a causal
connection between Rutherford’s actions and a constitutional violation. A
causal connection can be established through evidence of a history of
13
Sheriff Rutherford is also named in Counts I and VII.
19
widespread abuse that is obvious, flagrant, rampant, and continuous, rather
than isolated incidents. Id. Only then will it be sufficient to place the supervisor
on notice of the need to correct the violations, and he must also have failed to
do so. 14 Id. Plaintiffs’ identification of one prior violation that is remotely
similar is insufficient to create a causal connection. Letson v. Mitchell, No. 3:13CV-00168-SGC, 2015 WL 1487731, at *10 (N.D. Ala. Mar. 30, 2015) (dismissing
with prejudice claims against supervisory defendants where plaintiff only
alleged three isolated incidents of alleged deliberate indifference, finding that
so few incidents was insufficient to establish a widespread and persistent
practice); see also Doe, 604 F.3d at 1266 (“[A] few isolated instances … will not
suffice.”).
A causal connection can also be established by a supervisor’s improper
custom or policy that results in deliberate indifference to constitutional rights.
Doe v. Sch. Bd. of Broward Cnty., Fla., 604 F.3d 1248, 1266 (11th Cir. 2010).
Plaintiffs have not shown a custom or policy of deliberate indifference. See
supra Part II.A.2.
14
20
B.
State Claims
1.
Wrongful Death Claims
Counts I,15 II, III, and VIII bring claims for wrongful death, which has a
two year statute of limitations. Fla. Stat. § 95.11(4)(d) (2014).16 More than two
years passed between Thomas’ death on July 30, 2010 and the filing of
Plaintiffs’ claims on June 21, 2013 (Doc. 1). Accordingly, Defendants contend
that all claims for wrongful death are barred by the statute of limitations.
Plaintiffs argue that the statute of limitations was tolled for the time the
Department of Financial Services (“DFS”) took to deny the claim (Doc. 110 at
11), and Defendants concede as much in their Reply (Doc. 117 at 11). 17
Count I is labeled “Negligence.” (Doc. 54 ¶¶ 78-84.) However,
Defendants address this count as if it alleges a wrongful death claim. See note
16, infra. To the extent this raises solely a common law negligence wrongful
death claim, it also fails. “To establish a cause of action for negligence in a
wrongful death action, a plaintiff must allege and prove (1) the existence of a
legal duty owed to the decedent, (2) a breach of that duty, (3) legal or proximate
cause of death was that breach, and (4) consequential damages.” Jenkins v.
W.L. Roberts, Inc., 851 So. 2d 781, 783 (Fla. Dist. Ct. App. 2003). Here,
Plaintiffs have not provided evidence of at least the second and third elements.
15
Although Counts IX, X, and XI also purport to bring claims under
Florida’s Wrongful Death Act, they actually appear to sound in negligence and,
in any event, no party argues that the statute of limitations applies to those
claims. See Doc. 95 at 14-15 (Defendants’ argument regarding the wrongful
death statute of limitations, limited to Counts I, II, III, and VIII).
16
In 2011, the Florida legislature amended the statutory waiver of
sovereign immunity to provide for the tolling of any action for wrongful death
during the time taken by DFS to deny the claim. Act of June 2, 2011, ch. 2011113, 2011 Fla. Laws 2. That act, however, took effect July 1, 2011, and only
applied the tolling provision to causes of action accruing after that date. Id. At
the time Plaintiffs’ claims accrued, no such tolling provision existed. (See Fla.
17
21
However, even if the time was tolled during the pendency of DFS’ consideration,
Plaintiffs wrongful death claims are nonetheless untimely.
Before bringing a claim for wrongful death, a claimant must present the
claim to DFS. Fla. Stat. § 768.28(6)(a)(2). DFS’ failure to dispose of a claim
within 90 days after it is filed operates as a final denial of the claim. Fla. Stat.
§ 768.28(6)(d) (2014). Plaintiffs assert that they provided notice to DFS on
March 26, 2012. Even assuming the statute of limitations was tolled during the
pendency of DFS’ review, it would only remain tolled for 90 days until DFS
would be deemed to have denied the claim. Id. The statute of limitations would
thus have run from July 30, 2010 to March 26, 2012, then from June 25, 2012
to June 21, 2013, for a total of more than two years.
Plaintiffs alternatively argue that their claims meet an exception to the
statute of limitations. Claims for wrongful death “brought against a natural
person for an intentional tort resulting in death from acts described in s. 782.04
(murder) or s. 782.07 (manslaughter) may be commenced at any time.” Fla. Stat.
§ 95.11 (2014). Per its express language, this exception only applies to
intentional tort claims. Counts I (Negligence), II (Medical Negligence), and III
(Medical Negligence) do not allege intentional torts, nor have Plaintiffs
Stat. § 768.28(6)(d) (2010)). However, because Defendants concede in their reply
that the wrongful death causes of action were tolled during the pendency of
DFS’ review, the Court will presume that tolling applies.
22
produced any evidence of Defendants’ commission of an intentional tort. These
claims therefore do not benefit from this exception to the statute of limitations.
Count VIII purports to be a wrongful death claim pursuant to respondeat
superior and alleges that the CO Defendants “intended to cause harmful or
offensive contact to Mr. Thomas” by placing him in a four-point restraint and
that, in the absence of Defendants’ restraint, among other causes, Thomas
allegedly would not have died. (Doc. 54 ¶ 142.) Plaintiffs allege that Defendants
used or authorized excessive force by means of the four-point restraint
purposefully, maliciously, wantonly, with deliberate indifference to Thomas’
rights, health, and safety, or with callous and reckless disregard to his rights,
health, and safety. (Doc. 54 ¶ 69.) However, even assuming they could state a
claim, there is no evidence to support it.
2.
Negligent Supervision (Count VII) and Negligent
Hiring, Retention, Training, and Supervision (Count IX)18
Count VII alleges negligent supervision against the City, Rutherford, and
CO Defendants. (Doc. 54 ¶¶ 132-39.) Claims for negligent supervision require
that the employer knew or should have known that the employee was unfit and
the employer fails to take action—such as investigating, discharging, or
In Florida, the tort of negligent supervision is also known as negligent
hiring or retention. Santillana v. Fla. State Ct. Sys., No. 6:09-cv-2095-Orl19KRS, 2010 WL 271433, at *11 (M.D. Fla. Jan. 15, 2010) (citing Mallory v.
O’Neil, 69 So. 2d 313 (Fla. 1954)).
18
23
reassigning the employee—accordingly. Dep’t of Envtl. Prot. v. Hardy, 907 So.
2d 655, 660 (Fla. Dist. Ct. App. 2005). Plaintiffs allege that the City and
Rutherford were aware “that their officers and other employees were using the
general use of force guidelines whenever an inmate appeared to be combative
and/or showing signs of physical agitation” (Doc. 54 ¶ 137.e.), but Plaintiffs
failed to show any evidence that any Defendant knew or should have known
that any employee was unfit.
In Count IX, Plaintiffs allege negligent hiring, retention, training, and
supervision against the City and all individual Defendants. (Doc. 54 ¶¶ 147-55.)
“As a preliminary matter, a claim for negligent supervision may only be
maintained against an employer, even though the underlying improper conduct
is committed by an employee.” Santillana, 2010 WL 271433, at *11 (citing Dep’t
of Envtl. Prot. v. Hardy, 907 So. 2d 655, 660 (Fla. Dist. Ct. App. 2005), and
Garcia v. Duffy, 492 So. 2d 435, 438 (Fla. Dist. Ct. App. 1986)). Thus, where
defendants are not alleged to be employers, negligent supervision claims must
fail. See id. (“Plaintiff’s claim against [three individual defendants] has no legal
basis because they are not alleged to be employers, and therefore such claims
against these Defendants must be dismissed.”). Here, Plaintiffs have not
produced any evidence that any individual Defendant is an “employer.”19
Although Sheriff Rutherford may be considered an employer, Plaintiffs
have failed to identify any facts regarding Rutherford’s training or supervision,
19
24
Like claims for negligent supervision, to prevail on a claim for negligent
hiring and retention Plaintiffs must show that the employer knew or should
have known of the employee’s unfitness. Stires v. Carnival Corp., 243 F. Supp.
2d 1313, 1318 (M.D. Fla. 2002) (for negligent hiring or retention claims brought
under Florida law, “a plaintiff must allege facts showing that the employer was
put on notice of the harmful propensities of the employee.”). “The principal
difference between negligent hiring and negligent retention as a basis for
employer liability is the time at which the employer is charged with the
knowledge of the employee’s unfitness.” Id. (citing Garcia v. Duffy, 492 So. 2d
435, 438 (Fla. Dist. Ct. App. 1982)). Thus, “[n]egligent hiring occurs when, prior
to the time the employee is actually hired, the employer knew or should have
known of the employee’s unfitness, and the issue of liability primarily focuses
upon the adequacy of the employer’s pre-employment investigation into the
employee’s background.” Id. Here, there are simply no facts in evidence to
support a negligent hiring claim.
Additionally, in Florida, liability under the theory of negligent retention
must relate to acts committed outside the scope of employment. “By its very
or lack thereof. Even if they had, as Sheriff Rutherford would be acting within
the scope of his employment in training and supervising employees, he is
entitled to immunity under Florida law because Plaintiffs have not shown that
he acted in bad faith, with a malicious purpose, or with wanton and willful
disregard of human rights, safety, or property. See Fla. Stat. § 768.28(9)(a).
25
nature, an action for negligent retention involves acts which are not within the
course and scope of employment[.]” Watson v. City of Hialeah, 552 So. 2d 1146,
1148 (Fla. Dist. Ct. App. 1989) (emphasis in original); see also Santillana, 2010
WL 271433, at *11 (“[T]he alleged acts by employees giving rise to liability for
negligent
supervision
must
occur
outside
the
employees’
scope
of
employment.”). Here, Defendants are only alleged to have acted within the
scope of their employment, and Plaintiffs have not shown that any Defendant
knew or should have known of any employee’s unfitness, thus necessitating
summary judgment on these claims. See Acts Retirement-Life Communities
Inc. v. Estate of Zimmer, 206 So. 3d 112, 116 (Fla. Dist. Ct. App. 2016)
(“Negligent supervision is simply not the appropriate claim to bring against an
employer whose employees are acting within the scope of their duties.”); City of
Boynton Beach v. Weiss, 120 So. 3d 606, 610 (Fla. Dist. Ct. App. 2013) (“Officer
One acted within the course and scope of his employment at all times. Because
of this, the negligent retention/supervision claim must fail by operation of
law.”).
To the extent the claims allege negligent training, to prevail on a claim
for negligent training brought against a Florida municipality, Plaintiffs must
actually show that the municipality was negligent in its implementation or
operation of a training program rather than merely challenging the content of
the program. Mercado v. City of Orlando, 407 F.3d 1152, 1162 (11th Cir. 2005).
26
Plaintiffs allege that the City “negligently trained its medical health care
providers” (Doc. 54 ¶ 150), yet Plaintiffs have produced no facts regarding the
training of medical health care providers, much less any facts related to the
implementation or operation of a training program. Moreover, although the
FAC alleges that the City’s acts were “purely operational in nature and thus
not shielded by sovereign immunity” (Doc. 54 ¶ 155), Plaintiffs have not
provided any evidence to support this contention. Furthermore, the allegations
of the FAC deal with the content of the JSO training program, and Plaintiffs
have not come forward with any evidence as to the implementation of the
program.
Plaintiffs also allege the City failed to properly “instruct and train its
officers as to the protocols in dealing with seizures….” (Doc. 54 ¶ 154.) The FAC
alleges that the City and Rutherford “failed and/or refused to adequately train
and supervise the Sheriff[’s] deputies, officers, and employees in the reasonable
and appropriate use of force” and that the City and Rutherford’s “use of force
and use of force training policies, customs, practices[,] and/or procedures were
so deficient, inadequate[,] and/or unreasonable that violations of the
Constitutional rights of pre-trial detainees in . . . custody was likely to occur.”
(Doc. 54 ¶¶ 75-76.) However, Plaintiffs’ conclusory allegations are not supported
by facts. There is no evidence to support a claim against the City for its alleged
failed implementation or operation of a training program.
27
3.
Intentional or Negligent Failure to Summon Medical
Care
Counts X and XI allege “intentional and/or negligent failure to summon
medical care for detainee in immediate need of care” against the City and all
individual Defendants, respectively. (Doc. 54 ¶¶ 156-61, 162-73.)
Count X alleges that the City knew or had reason to know that Thomas
was in need of immediate medical care but failed to timely summon appropriate
care. (Doc. 54 ¶ 158.) This claim is belied by not only other factual allegations
in the FAC, but also contradicted by undisputed evidence adduced during
discovery which demonstrates that medical help was summoned, nurses arrived
on the scene shortly after COs learned of the medical emergency, and Thomas
was taken to the health clinic for treatment; there is no evidence of delay.
Plaintiffs also appear to argue in part that medical care should have been
provided to Thomas even before he was taken to the PTDF. Although the FAC
alleges that JSO officers left Thomas in a parked car on a July day without air
conditioning for four hours and that when Thomas’ neighbor allegedly informed
the officers that he appeared disoriented the officers allegedly told her to mind
her own business and did not summon medical care, Plaintiffs have not pointed
to any medical evidence to suggest that these actions by JSO officers, who are
not named as Defendants in this case, contributed to Thomas’ death.
28
Confusingly, Count XI purports to allege violations of Florida law, but
then also alleges violations of the Federal Constitution.20 (Doc. 54 ¶¶ 162-73.)
While the basis for Count XI, or even whether it is a state or federal cause of
action, is unclear, the claim fails as a matter of law regardless. If Plaintiffs
intend to allege a constitutional claim against all individual Defendants, Count
XI is redundant to Counts IV and V (except insofar as Count XI is brought
against Nurse Singleton, Nurse Baker, and Dr. Joshi), and thus fails for the
reasons set forth in Part III.A.1., supra. Even as to the medical staff, however,
this claim fails for those reasons previously discussed. Similarly, if Plaintiffs
intend to allege a claim for failure to summon medical care, that claim fails as
it is apparent that individual Defendants did summon medical care. If they
intended to state a claim for medical negligence, that claim is redundant to
Counts I and III and, for the reasons discussed in Part III.B.1., supra, those
claims fail as a matter of law.21
The Court previously warned Plaintiffs to ensure that count titles
match what is alleged in the count text. (Doc. 41 at 9.)
20
Claims for medical negligence also appear untimely under Florida’s
applicable statute of limitations. See Fla. Stat. § 95.11(4)(b) (requiring medical
malpractice claims be filed within two years of accrual).
21
29
4.
Battery and Assault
Counts XII and XIII22 allege battery and assault, respectively, against all
individual Defendants. (Doc. 54 ¶¶ 174-78, 179-81.) No evidence supports these
claims.
IV.
CONCLUSION
All sympathies go to Mr. Thomas’ family on account of his untimely death.
However, the Defendants have put forth evidence and argument showing that
there is no genuine issue of material fact concerning Plaintiffs’ claims. Even
viewing the evidence in Plaintiffs’ favor, Plaintiffs have not met their burden of
showing otherwise.
Accordingly, it is hereby
ORDERED:
1.
Defendants’
Motion for
Summary
Judgment
(Doc.
95)
is
GRANTED as to Counts I through XIII of the Fourth Amended Complaint
(Doc. 54).
2.
The Clerk is directed to enter summary final judgment in favor of
Defendants and against the Plaintiffs, and close the file.
22
Count XIII is incorrectly labeled as “Count VIII.” (See Doc. 54 at ¶¶
179-81.)
30
DONE AND ORDERED in Jacksonville, Florida the 3rd day of August,
2017.
ab
Copies:
Counsel of record
31
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