Judith Walton v. Reddish et al
Filing
42
ORDER granting in part and denying in part 34 Defendant Criswell's Motion to Dismiss for Failure to State a Claim; granting in part and denying in part 35 Defendants Bacon, FDOC, Jeffcoat, Reddish, and Swain's motion to dismiss; gra nting in part and denying in part 36 Defendants Allen, Browning, Griffis, Hough, and Schaffer's Motion to Dismiss for Failure to State a Claim; dismissing Counts I, II, and IV with prejudice for Plaintiff's failure to file within the stat ute of limitations period; dismissing Count III without prejudice for failure to state a claim, subject to Plaintiff's right to amend no later than May 25, 2018; dismissing Defendants Jeffcoat and the FDOC, but withholding judgment until resolution of the case as a whole; discharging the Order to Show Cause 38 . Signed by Judge Brian J. Davis on 3/20/2018. (KLC)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
JUDITH WALTON, as Personal
Representative for the ESTATE
OF FRANK SMITH, on behalf of the
Estate and Survivor Judith Walton,
Plaintiff,
v.
Case No. 3:16-cv-1130-J-39JRK
FLORIDA DEPARTMENT OF
CORRECTIONS, et al.,
Defendants.
______________________________
ORDER
I. Status
Plaintiff is proceeding in this action as the personal representative for the estate of
Frank Smith, Plaintiff’s son, who was an inmate of the Florida penal system. Plaintiff,
represented by counsel, is proceeding on a Second Amended Complaint (Doc. 33;
Complaint), asserting, on behalf of Smith’s estate and survivors, that Smith’s
constitutional rights were violated while he was in custody of the Florida Department of
Corrections (FDOC). Plaintiff filed her original complaint on September 6, 2016 (Doc. 1).
Plaintiff names as defendants the FDOC, Warden Barry Reddish, Nan Jeffcoat, Lt.
Joseph Allen, Capt. Wilfred Ellis, Capt. Shawn Swain, Lt. Terry Bacon, Sgt. Rodney
Criswell, Sgt. Brandi Griffis, Officer Brian Norman, Officer Shalen Browning, Officer
Michael Shaffer, and Officer Dustin Hough. All Defendants except one have filed motions
to dismiss the Second Amended Complaint (Docs. 34, 35, 36; Motions). Defendant Ellis,
who recently filed an Answer (Doc. 41), has not moved to dismiss the Complaint. (Doc.
41). Plaintiff has filed a response to the Motions (Doc.37; Response), which are now ripe
for review.
II. Motion to Dismiss Standard
In ruling on a motion to dismiss, the Court must accept the factual allegations set
forth in the complaint as true. Ashcroft v.Iqbal, 556 U.S. 662, 678 (2009); Swierkiewicz
v. Sorema N.A., 534 U.S. 506, 508 n.1 (2002); see also Lotierzo v. Woman's World Med.
Ctr., Inc., 278 F.3d 1180, 1182 (11th Cir. 2002). In addition, all reasonable inferences
should be drawn in favor of the plaintiff. See Omar ex. rel. Cannon v. Lindsey, 334 F.3d
1246, 1247 (11th Cir. 2003) (per curiam). Indeed, “the tenet that a court must accept as
true all of the allegations contained in a complaint is inapplicable to legal conclusions[,]”
which simply “are not entitled to [an] assumption of truth.” Iqbal, 556 U.S. at 678, 680. A
plaintiff must meet some minimal pleading requirements. Jackson v. BellSouth
Telecomm., 372 F.3d 1250, 1262-63 (11th Cir. 2004) (citations omitted).
The plaintiff must allege "enough facts to state a claim that is plausible on its face."
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). “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.
A Court may properly dismiss a complaint for failure to comply with the applicable
limitations period when “it is apparent from the face of the complaint that the claim is timebarred.” Baker v. City of Hollywood, 391 F. App’x 819, 820 (11th Cir. 2010) (citing La
Grasta v. First Union Secs., Inc., 358 F.3d 840, 845 (11th Cir. 2004)).
III. Complaint Allegations
Plaintiff alleges Defendants deprived Smith of his constitutional rights with respect
to an incident that occurred on July 3, 2012. On that day, Smith was an inmate at Union
Correctional Institution (UCI), and officers were transporting him from a hospital in
2
Gainesville, FL, back to UCI. Complaint at 4. According to Plaintiff, on July 3, 2012,
officers used excessive force against Smith both in the transport vehicle and upon return
to UCI (the movement center). Id. at 4, 6. Specifically, Plaintiff alleges that, during
transport, Defendant Criswell pulled the van to the side of the road after Smith banged
his head on the compartment divider and kicked a window, breaking the glass. Id. at 4-5.
Defendant Criswell entered the van’s passenger compartment and then “used his Taser
on Smith and struck him repeatedly.” Id. at 6. Upon return to the movement center,
according to Plaintiff, Defendants failed to properly care for Smith, failed to timely call
paramedics, and improperly moved Smith using a wheelchair rather than a stretcher even
though Smith was unconscious. Id. at 7-9. Plaintiff further alleges that Smith was
“battered” while at the movement center. Id. at 15. With respect to individual Defendants,
Plaintiff alleges some were directly involved in beating and physically harming Smith,
while others failed to intervene or were deliberately indifferent to a history of abuse against
inmates and with respect to this particular incident. Id. at 15-18.
A paramedic allegedly concluded that Smith’s injuries appeared more consistent
with a car accident victim or someone who fell down a set of stairs. Id. at 9. As a result of
the use of force, “Smith received paralyzing blunt force injuries to his head and neck.”
Unfortunately, Smith died two months later, on September 4, 2012, allegedly as a result
of complications related to the injuries. Id. at 4. The medical examiner’s autopsy revealed
“multiple visible abrasions, lacerations, edemas and contusions of the legs, groin,
midsection, and head.” Id. at 12. Smith’s cause of death was noted to be “complications
of blunt head injuries,” which Plaintiff attributes directly to the Defendants’ acts or
omissions on July 3, 2012. Id. at 12.
3
Plaintiff asserts four counts, all arising out of the conduct alleged to have occurred
on July 3, 2012. Id. at 1. Counts I through III assert claims under § 1983 for the violation
of Smith’s constitutional rights. Count I alleges excessive use of force and a failure to
protect or intervene as to Defendants Criswell, Hough, Schaffer, Allen, Norman, Griffis,
and Browning. Id. at 15. Count II alleges deliberate indifference as to Defendants
Reddish, Jeffcoat,1 Ellis, Swain, Allen, and Bacon. Id. at 17. Count III alleges conspiracy
to deprive Smith of his constitutional rights as to all Defendants. Id. at 19. Count IV alleges
violations of the ADA and Rehabilitation Act as to Defendant FDOC, alleging Smith was
disabled and Defendant FDOC failed to provide reasonable accommodations for Smith,
which resulted in his injury and death.2 Id. at 20.
With respect to the conspiracy claim, Plaintiff alleges Defendants3 conspired to
beat Smith, who allegedly suffered from an unspecified mental illness. Id. at 4, 19.
According to Plaintiff, Defendants not only conspired to harm Smith, but agreed to an
elaborate plan to delay medical treatment, delay disclosure of the incident to
investigators, hide or destroy evidence, and to conceal any wrongdoing. Id. at 19. The
denial of immediate medical care allegedly “exposed [Smith] to undue suffering and an
untimely and unnecessary death.” Id. at 12. Plaintiff alleges the FDOC investigator first
learned of the incident about five to six hours after it happened. Plaintiff maintains that
Smith lost consciousness at some point on the day of the incident, id., though, apparently
while he was conscious, “[t]he officers involved in the force . . . threatened Smith with
1
Plaintiff has stipulated to the dismissal of claims against Defendant Jeffcoat. See Response at 18.
It is unclear how Smith’s alleged mental illness played a role in the incident that occurred on July 3, 2012,
other than vague allegations that Defendant Criswell had abused Smith in the past because of his mental
illness, and the FDOC failed to establish policies for managing inmates with mental illness without resorting
to use of force. See Complaint at 4, 22.
3 Plaintiff clarifies in her Response that she intended to name only the individual Defendants in this Count.
See Response at 12 n.5.
2
4
severe injury or death if he told what happened.” Id. at 11. As relief, Plaintiff seeks
damages on behalf of Smith’s estate and on behalf of the survivors for their loss of support
and pain and suffering resulting from Smith’s death.
IV. Defendants’ Motions and Plaintiff’s Response
Defendants assert various defenses: failure to state a claim, qualified immunity,
application of the intracorporate conspiracy doctrine, and failure to timely file the
Complaint within the applicable statute of limitations. See Motions. With respect to the
statute of limitations defense, Defendants maintain the applicable four-year statute of
limitations accrued on the date of the incident, July 3, 2012. According to Defendants, the
filing of the original complaint on September 6, 2016, falls well outside the statutory
period. See Doc. 34 at 13; Doc. 35 at 5; Doc. 36 at 8.4 Some Defendants also assert that
Florida law bars Plaintiff’s claims because the injuries to Smith resulted in his death.
Under Florida law, claims for injuries resulting in death do not survive; instead, when
death results, a distinct cause of action may proceed in favor of the survivors, as a
wrongful death claim. See Motion (Doc. 35) at 4-5.
In response to the statute of limitations defense, Plaintiff agrees that her claims
are governed by a four-year statutory period, but maintains that the accrual date is Smith’s
date of death, which was September 4, 2012,5 citing Florida law. Response at 14. Plaintiff
also asserts that she is entitled to application of the “delayed discovery” doctrine under
Florida law. Id. at 15. Plaintiff does not address why Smith’s date of death governs the
Document 36 lacks pagination. Page numbers reflect the pagination assigned by the Court’s CM/ECF
docketing system, which are found at the top of each page.
5 Plaintiff asserts, and this Court takes notice, that September 4, 2016 was a Sunday, with the following
Monday being Labor Day. Response at 14. Thus, if the statute of limitations for Plaintiff’s claims accrued
on Smith’s date of death, the Complaint was timely filed on the next business day following September 4,
2016, which was September 6, 2016.
4
5
accrual of the action and only responds to Defendants’ asserted accrual date in a
footnote, saying that the Defendants’ “theory has no possible justification.” Id. at 14 n.6.
V. Law and Conclusions
Defendants’ argument with respect to the accrual date indeed has justification, at
least as to Counts I, II, and IV. As a preliminary matter, the parties do not dispute that a
four-year limitations period, imported from Florida law as the forum state, governs the
claims. See Doc. 34 at 13; Doc. 35 at 5; Doc. 36 at 8; Response at 14. The Supreme
Court has held that because § 1983 does not set forth a limitations period, the courts are
to adopt the forum state’s residual personal injury statute of limitations. Owens v. Okure,
488 U.S. 235, 236 (1989) (stressing a goal of consistency and recognizing that “narrow
analogies” to state law bred confusion and inconsistency in the application of the federal
law); see also Wallace v. Kato, 549 U.S. 384, 387 (2007). The ADA also does not identify
a limitations period; thus, Florida’s four-year statutory period applies. Silva v. Baptist
Heath So. Fla., Inc., 856 F.3d 824, 841 (11th Cir. 2017) (citing Fla. Stat. § 95.11(3)).
Section 1983 and the ADA are silent as to whether a person’s claims survive death.
Thus, federal courts apply state substantive law to the extent necessary to “fill a gap,” per
the federal statutory framework provided by § 1988. See Robertson v. Wegmann, 436
U.S. 584, 588 (1978) (recognizing that, when federal statutes are insufficient in
addressing specific remedies, the applicable forum state’s laws are imported to the extent
not inconsistent with federal laws); United States v. NEC Corp., 11 F.3d 136, 137, 139
(11th Cir. 1993) (recognizing that claims based on remedial statutes survive death where
the forum state’s law permits recovery for wrongful death); see also Brazier v. Cherry,
293 F.2d 401, 408-09 (5th Cir. 1961).
6
Section 1988 provides the following:
The jurisdiction in civil and criminal matters conferred on the
district courts . . . for the protection of all persons in the United
States in their civil rights, and for their vindication, shall be
exercised and enforced in conformity with the laws of the
United States, so far as such laws are suitable to carry the
same into effect; but in all cases where they are not adapted
to the object, or are deficient in the provisions necessary to
furnish suitable remedies and punish offenses against law,
the common law, as modified and changed by the constitution
and statutes of the State wherein the court having jurisdiction
of such civil or criminal cause is held, so far as the same is
not inconsistent with the Constitution and laws of the United
States, shall be extended to and govern the said courts . . . .
42 U.S.C. § 1988.
Reference to a state law to fill the survival gap does not add to a substantive right,
but “merely assures that there will be a remedy” when there is a civil rights violation
resulting in death. Brazier, 293 F.2d at 408-09. In Brazier, the former Fifth Circuit held
that § 1988 provides the federal framework through which the “survival gap” in § 1983 is
addressed. Id. at 407. Specifically, the court held that because Georgia state law
permitted a decedent’s survivors and the estate to seek damages, the decedent’s death
gave rise “to a federally enforceable claim for damages.” Id. at 402, 409. Because Georgia
law provided for both survival and wrongful death claims, the court found it unnecessary
to “differentiate between the two types of actions” in formulating a remedy in furtherance
of the policy of the Civil Rights Statutes. Id. at 409. See also Carringer v. Rodgers, 331
F.3d 844, 849-50 (11th Cir. 2003) (holding a decedent’s parent had standing, under
Georgia state law, to bring a claim under § 1983 “for the wrongful death of her son in
violation of his constitutional rights”); Jaco v. Bloechle, 739 F.2d 239, 242 (6th Cir. 1984)
(holding a mother, as personal representative of her son’s estate, was permitted to
“champion her dead son’s civil rights” through a § 1983 action).
7
The Eleventh Circuit has not directly addressed whether a civil rights action
survives a decedent’s death when Florida is the forum state. However, our sister court
has engaged in a thorough analysis of this question. See Sharbaugh v. Beaudry, 267 F.
Supp. 3d 1326, 1334-35 (N.D. Fla. 2017). The Northern District held that Florida’s
Wrongful Death Act (WDA) “fills the survival gap,” because it “provides a meaningful
remedy” in § 1983 actions alleging violation of one’s constitutional rights that resulted in
wrongful death. Id. at 1335. While Florida’s comprehensive WDA does not permit
recovery for a decedent’s pain and suffering when injury results in death, it does permit
recovery of pain and suffering damages in favor of the survivors. In other words, the court
recognized, a decedent’s damages are “transferred” to the survivors. Id. at 1334. See
also Martin v. United Sec. Svcs., Inc., 314 So. 2d 765, 767 (Fla. 1975) (“Florida Statutes
. . . consolidate survival and wrongful death actions and substitute for a decedent’s pain
and suffering the survivors’ pain and suffering as an element of damages.”); Capone v.
Philip Morris USA, Inc., 116 So. 3d 363, 375 (Fla. 2013) (explaining that Florida’s WDA
“implemented a process of substitution” with respect to recovery of damages when a
decedent’s injuries cause his death).
It is clear from a review of relevant federal law and the policies underlying § 1983
that Plaintiff’s estate may assert a claim for the violation of Smith’s civil rights. 6 Even
though the Florida WDA does not provide for survival of actions where the injury results
in death, the federal courts have recognized that § 1983 claims survive where state law
generally permits an estate or a personal representative to bring actions on behalf of a
decedent and survivors, whether in the form of a wrongful death claim or a true survival
This includes Plaintiff’s claim in Count IV, under the ADA, which also survives Smith’s death. See NEC
Corp., 11 F.3d at 137, 139.
6
8
claim. See Carringer, 331 F.3d at 849-50; Brazier, 293 F.2d at 408-09. The next inquiry,
then, and a point of contention between the parties, is when the statute of limitations
accrues when a personal representative asserts federal claims for the violations of
decedent’s civil rights resulting in wrongful death. While the forum state’s law controls
with respect to the length of a limitations period, the same is not true with respect to the
accrual of a cause of action. Accrual of federal actions is governed solely by reference to
federal law. Mullinax v. McElhenney, 817 F.2d 711, 716 (11th Cir. 1987) (“[I]n Section
1983 actions ‘[o]nly the length of the limitations period, and the closely related questions
of tolling and application, are to be governed by state law.’” (emphasis and alteration in
original) (citing Wilson v. Garcia, 471 U.S. 261, 269 (1985)); see also McGinley v.
Mauriello, 682 F. App’x 868, 871 (11th Cir. 2017) (recognizing that claim accrual is
determined as a matter of federal law); Ross v. Mickle, 194 F. App’x 742, 744 (11th Cir.
2006) (“Federal law . . . determines when the statute of limitations begins to run.”) (citing
Lovett v. Ray, 327 F.3d 1181, 1182 (11th Cir. 2003)).
Under federal law, actions brought pursuant to § 1983 and the ADA accrue, or
begin to run, “from the date the facts which would support a cause of action are apparent
or should be apparent to a person with a reasonably prudent regard for his rights.” Ross,
194 F. App’x at 744. Stated another way, once a person knows or has reason to know of
an injury and knows who inflicted the injury, the statute of limitations begins to run as to
the claims that may be available to that person. Horsely v. Univ. of Ala., 564 F. App’x
1006, 1008 (11th Cir. 2014) (citing Chappell v. Rich, 340 F.3d 1279, 1283 (11th Cir.
2003)). “This rule requires a court first to identify the alleged injuries, and then to
determine when plaintiff[] could have sued for them.” Rozar v. Mullis, 85 F.3d 556, 562
(11th Cir. 1996). The injuries alleged here are those resulting from the excessive use of
9
force against Smith, and are brought under § 19837 and the ADA8. A determination of
when Plaintiff (or here, Smith) could have sued for these injuries is dictated by the nature
of the federal claims asserted.
A claim premised on excessive use of force accrues at the time the alleged force
was used. Baker v. City of Hollywood, 391 F. App’x 819, 821 (11th Cir. 2010) (affirming
the district court’s dismissal of plaintiff’s claims premised on excessive force because,
from the face of the complaint, it was apparent he filed it more than four years after the
date he allegedly was beaten); Ross v. Mickle, 194 F. App’x 742, 744 (11th Cir. 2006)
(holding the statute of limitations had run on plaintiff’s excessive force claim, which
accrued on the date plaintiff was shot in the back even though the plaintiff alleged
defendants’ conspiracy prevented him from learning the identity of the officer who shot
him). See also Whitenight v. Pa. State Police, 674 F. App’x 142, 144 (3d Cir. 2017)
(dismissing plaintiff’s claim sua sponte because it was clear from the face of the complaint
that plaintiff knew of his injuries more than two years before he filed his complaint); Love
v. City of New Brunswick, No. 16-2586, 2018 WL 429247, at *5 (D.N.J. Jan. 16, 2018)
(noting that the date of injury typically starts the statutory period where “the fact of injury
. . . would be recognized by a reasonable person”). Similarly, an ADA claim accrues when
the plaintiff knows of an injury resulting from a failure to accommodate. Horsely, 564 F.
App’x at 1009.
7
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege that (1) the defendant deprived him of a
right secured under the United States Constitution or federal law and (2) such deprivation occurred under
color of state law. Bingham v. Thomas, 654 F.3d 1171, 1175 (11th Cir. 2011) (per curiam) (citation omitted).
8
“[T]o state a Title II claim, a plaintiff generally must prove (1) that he is a qualified individual with a disability;
(2) that he was either excluded from participation in or denied the benefits of a public entity's services,
programs, or activities, or was otherwise discriminated against . . . ; and (3) that the exclusion, denial of
benefit, or discrimination was by reason of the plaintiff's disability.” Bircoll v. Miami-Dade Cty., 480 F.3d
1072, 1083 (11th Cir. 2007).
10
The alleged injured party here was Smith. As the victim, Smith knew or should
have known of the alleged use of force when it occurred on July 3, 2012. To the extent
Plaintiff claims the denied accommodation is related to events that occurred on July 3,
2012, when Defendants allegedly used excessive force against Smith, the same date
governs all claims. In any event, with respect to the ADA claim, Smith should have known
of an injury resulting from the denial of accommodations for any alleged disability during
the time he was incarcerated at UCI, or on or before July 3, 2012. Thus, Plaintiff’s
complaint, filed on September 6, 2016, is untimely and, therefore, barred.
The distinction between federal claims premised on a violation of Smith’s
constitutional rights and state law claims for wrongful death inuring to the benefit of the
estate is of paramount significance with respect to the accrual of Plaintiff’s claims. While
not binding, the Tenth Circuit has recently addressed the narrow question presented here,
and this Court finds its rationale persuasive. See Lawson v. Okmulgee Cty. Crim. Justice
Auth., No. 16-7070, 2018 WL 1104553, at 4-5 (10th Cir. Feb. 28, 2018). In Lawson, the
personal representative of a former inmate, who died of cancer while incarcerated,
brought an action under § 1983 and a parallel state constitutional provision. The plaintiff
asserted, on behalf of the deceased inmate, claims for cruel and unusual punishment
through deliberate indifference to the inmate’s medical needs. Id. at *1. The defendants
moved to dismiss the complaint, in part because it was time-barred, and the district court
granted the motions. Id. at *2. On appeal, the estate argued the limitations period accrued
on the inmate’s date of death, pursuant to the relevant state (Oklahoma) wrongful death
law. Id. at *4.
The court disagreed, primarily because the estate was suing “in a purely
representative capacity for alleged violations of [the inmate’s] federal and state
11
constitutional rights.” Id. Thus, the court held, the inmate’s date of death did not control,
but rather, the controlling date was that which would have applied had he himself filed the
action, relying on the federal accrual rule. Id. The court specifically stated that “the estate
is ignoring that [the personal representative] is suing in a purely representative capacity .
. . and has stepped into his shoes for all purposes.” Id. (internal quotations and alterations
omitted). See also Majors v. Gerlach, No. 16-13672, 2017 WL 35813321, at *4 (E.D. Mich.
2017) (“[I]t would be a perversion of the discovery rule to permit the decedent’s
representative a ‘fresh start’ at the statute of limitations when the decedent himself
apparently had immediate notice of all facts necessary to bring a lawsuit.”).
The Sixth Circuit has also recognized the limited extent to which state wrongful
death and survival laws apply in the context of a § 1983 claim brought to “champion” the
rights of a decedent. See Jaco v. Bloechle, 739 F.2d 239, 242 (6th Cir. 1984). In Jaco,
the court recognized that “a § 1983 cause of action, by virtue of the explicit language of
the section itself, is a personal action cognizable only by the party whose civil rights had
been violated.” Id. There, the court held that a mother, as personal representative of her
son’s estate, was permitted to proceed with a § 1983 claim in which she asserted
violations of her son’s civil rights, even though strict application of the forum state’s
wrongful death and survival laws would have resulted in dismissal of the claim.9 Id. at
242, 254. In reaching this conclusion, the court distinguished between survival and
wrongful death claims, stating the former is a claim personal to the decedent and the latter
“inures to the benefit of the decedent’s estate” as a result of injuries suffered by the estate
9
Plaintiff could not state a survival claim because the decedent did not suffer pre-death; he was shot and
instantly killed. She also could not maintain a state wrongful death claim in federal court, because she
lacked standing to assert the rights of another under the state wrongful death law. Jaco, 739 F.2d at 24243.
12
rather than the decedent. Id. at 242. The court concluded that a wrongful death claim
under state law was not the equivalent of the decedent’s § 1983 claim, stating that “to
arbitrarily conclude that [the survivors’] injuries resulted from an infringement of their civil
rights would be sheer obfuscation of the issue.” Id. at 242-43 (emphasis added).
In a footnote, the court clarified even further why application of the state’s wrongful
death law, in the context of the personal representative’s claim resulting from infringement
of her son’s civil rights, was not appropriate:
[T]he claim of [decedent’s] heirs under the wrongful death
enactment is a cause of action separate from the civil rights
claim and should have been treated as a state claim subject
to the trial court’s pendent jurisdiction. . . . Ohio’s wrongful
death enactment creates a cause of action—it is not a law
regulating the survival of the decedent’s legal claims.
Because it is not adapted to the object of providing for the
continuation of personal causes of action, the wrongful death
statute is irrelevant to the § 1988 analysis imposed on this
action by Robertson v. Wegmann, supra.
Id. at 243 n.5 (emphasis in original).
Florida law permits a personal representative to recover damages resulting from loss of
a decedent.10 Like the situations presented in Jaco and Lawson, Plaintiff here has
asserted federal claims, alleging violations of her decedent’s constitutional rights, in a
purely representative capacity. Thus, the outcome here should be the same as that
reached in Lawson with respect to the relevant date for accrual. In other words, the date
of accrual is the date of the alleged violations of the decedent’s civil rights, and not the
date of death resulting from those violations. Smith’s death, while untimely and certainly
unfortunate, was a consequential damage resulting from the alleged constitutional
violations, which occurred on July 3, 2012. The later consequential damage (death) does
10
See Fla. Stat. §§ 46.021, 768.19, 768.20.
13
not “alter the commencement date.” See Wallace, 549 U.S. at 390 (“Under the traditional
rule of accrual . . . the tort cause of action accrues, and the statute of limitations
commences to run, when the wrongful act or omission results in damages.”) (alteration in
the original) (internal quotations omitted).
Even to the extent Plaintiff seeks relief that sounds in wrongful death (damages for
the survivors),11 that does not dictate that the Florida case law regarding accrual of a
wrongful death action applies here. Most importantly, there is no gap in the relevant
federal law with respect to accrual of actions. Thus, resort to the forum state’s law with
respect to this issue would be error. See 42 U.S.C. § 1988; Robertson, 436 U.S. at 58990; Brazier, 293 F.2d at 408-09. While Florida’s comprehensive WDA distinguishes
between claims that survive death and claims that abate upon death, that distinction has
no relevance in the context of a federal civil rights action brought to remedy the violations
of a decedent’s civil rights, even where those violations allegedly result in death. Indeed,
the former Fifth Circuit has expressed that it is unnecessary to differentiate between a
survival claim and a wrongful death claim, where both are permitted by state law and
“both classes of victims” may recover. Brazier, 293 F.2d at 409. Even more, there is a
clear distinction between a state wrongful death claim, which is governed by the state
law, and a claim asserting violations of a decedent’s civil rights under § 1983.
Importantly, Plaintiff has not stated a pendent wrongful death claim under Florida
state law. (Indeed, Plaintiff does not reference Florida’s WDA in her Complaint.) If she
had, then, as she maintains, that cause of action would accrue on the date of Smith’s
In her Response, Plaintiff stresses that she seeks damages for the loss to Smith’s estate and survivors,
and not on behalf of Smith for his pain and suffering. Response at 14.
11
14
death, pursuant to Florida case law.12 See McGinley, 682 F. App’x at 871 n.3 (noting a
distinction between accrual of a wrongful death claim and accrual of a claim under § 1983
for denial of access to courts). Plaintiff also has not alleged denial of her own
constitutional rights, such as denial of access to courts.13 See Robertson, 436 U.S. at 592
n.9 (recognizing a distinction between rights asserted on behalf of the decedent and rights
that may be asserted, under § 1983, on behalf of survivors “for injury to their own
interests”); Robertson v. Hecksel, 420 F.3d 1254, 1261 (11th Cir. 2005) (distinguishing
the plaintiff’s claims, brought to remedy infringement of her alleged “liberty interest in a
continued relationship with her adult son,” which failed to state a cause of action, from the
plaintiff’s claims in Brazier, which sought a remedy for the violation of the decedent’s
constitutional rights); Chappell v. Rich, 340 F.3d 1279, 1283 (11th Cir. 2003) (stating that
a claim for denial of access to courts may accrue at a different time from the underlying
claim). Because Plaintiff has chosen to premise her claims on the alleged violations of
Smith’s constitutional rights, she is bound by the federal accrual rule. And, because the
federal law squarely addresses accrual of causes of action—meaning, there is no
“gap,”—there is no need to resort to application of the forum state law with respect to the
date of accrual. See 42 U.S.C. § 1988; Robertson, 436 U.S. at 589-90; Brazier, 293 F.2d
at 408-09.
See Fulton Cnty. Adm’r v. Sullivan, 753 So. 2d 549, 552 (Fla. 1999) (recognizing that a wrongful death
action under Florida law accrues on the date of death). Plaintiff likely did not pursue a wrongful death claim
because the Florida wrongful death statute of limitations is much less generous (two years) and, as to the
claim against the FDOC, she has not alleged compliance with the notice requirement provided in Florida
Statutes section 768.28.
13 Even though Plaintiff alleges that Defendants engaged in an elaborate plan to conceal alleged
wrongdoing on the date of the incident, those allegations are included in support of the conspiracy claim
under § 1983. Plaintiff has not alleged, nor does this Court read her Complaint to attempt to allege, that
any concealment resulted in a denial of her access to the courts as to constitutional claims she may have
asserted but could not because of Defendants’ conduct.
12
15
To the extent any parts of the Florida WDA would apply with regard to Plaintiff’s
claims, it would be with regard to the measure of damages and not as to the accrual of
her federal causes of action premised on her decedent’s constitutional rights. Indeed, the
Florida WDA did not completely abolish survival actions, but merely clarified the measure
of damages available depending on the nature of the injury and on whose behalf the claim
is filed.14 See Sharbaugh, 267 F. Supp. 3d at 1335 (citing Martin, 314 So. 2d at 770)
(recognizing that the Florida WDA was not to be interpreted “as a blanket abolition of
survival actions for personal injuries resulting in death”); See also Gillmere v. City of
Atlanta, Ga., 864 F.2d 734, 738, n.4 (11th Cir. 1989) (suggesting, without deciding, that
application of the state wrongful death act may be appropriate with respect to the measure
of damages in instances where the survivors seek damages for their own injuries resulting
from a civil rights violation as to the decedent); Estate of Bashimam v. City of Tallahassee,
No. 4:10cv343-RH/WCS, 2011 WL 13232538, at *2 (N.D. Fla. Mar. 11, 2011) (recognizing
that a personal representative may pursue a claim for violation of a decedent’s civil rights,
under § 1983, and recover damages to the extent provided by Florida’s wrongful death
act).
The Court now must consider whether any tolling provision would apply given
Plaintiff’s contention, without factual support or analysis, that she should benefit from
Florida’s “delayed discovery” rule. See Response at 15. While the federal accrual rule
applies to Plaintiff’s claims, state law applies with respect to whether any tolling provisions
are applicable. Mullinax, 817 F.2d at 716. Florida’s delayed discovery rule does not apply
to extend the accrual date as to Plaintiff’s claims. According to Florida Statutes, only
specific enumerated causes of action are subject to a discovery accrual date, as opposed
14
See Fla. Stat. § 768.21.
16
to a strict time period beginning on the day of an identified act or omission. See Fla. Stat.
§ 95.11(4), (7) (providing a “discovery” calculation for actions asserting professional
malpractice, medical malpractice, and intentional torts based on abuse of minors). See
also Davis v. Monahan, 832 So. 2d 708, 710-11 (Fla. 2002) (holding Florida’s delayed
discovery rule is interpreted narrowly and only as to the claims enumerated by the
legislature). See also Fla. Stat. Ann. § 95.051 (enumerating circumstances that will toll
an applicable limitations period).
Plaintiff has not asserted an argument that Florida’s “delayed discovery” rule
applies, nor has she alleged facts suggesting that Smith’s discovery of his action should
have been delayed or tolled as permitted by Florida law. Indeed, Florida’s “discovery” rule
is similar to the applicable federal accrual rule, which dictates a cause of action accrues
when the plaintiff knows or should know of an injury or action. Smith knew or should have
known of his injury on July 3, 2012, when Defendants allegedly used excessive force
resulting in Smith’s unfortunate death two months later. The fact that Smith may have
been unconscious at any point on the date of the incident does not permit tolling or delay
of the statutory period under Florida law. See Fla. Stat. § 95.11; Fla. Stat. § 95.051.
The Court finds it clear from the face of the Complaint that Plaintiff’s claims alleging
excessive use of force, failure to intervene, deliberate indifference, and violation of the
ADA (Counts I, II, and IV) are barred by the applicable four-year statute of limitations.
Those claims accrued on July 3, 2012, which is the date that Smith knew or should have
known of a violation of his constitutional rights. Thus, Plaintiff should have filed her claims
no later than July 3, 2016, to be considered timely. Plaintiff filed her claims on September
6, 2016, over two months after the limitations period expired. With respect to the
conspiracy claim alleged in Count III, the Court finds application of the statute of
17
limitations less clear. Specifically, it is unclear from the Complaint allegations when Smith
knew or should have known the Defendants engaged in a conspiracy to deprive him of
his constitutional rights.15
While the Court is unable to discern whether the statute of limitations has run on
the conspiracy claim (Count III), that is a question left for another day because Plaintiff
has failed to state a claim for conspiracy. See Fed. R. Civ. P. 12(b)(6). To properly state
a claim for conspiracy under § 1983, a plaintiff must allege, with specificity, that the
defendants reached an agreement to deny the plaintiff his constitutional rights, and that
defendants did, in fact, violate plaintiff’s constitutional rights. Burge v. Ferguson, 619 F.
Supp. 2d 1225, 1237 (M.D. Fla. 2008). A court may properly dismiss a conspiracy claim
if it includes only conclusory allegations and does not contain specific facts to inform the
defendant “of the nature of the conspiracy alleged.” Fullman v. Graddick, 739 F.2d 553,
556–57 (11th Cir. 1984). “A plaintiff claiming a § 1983 conspiracy must prove the
defendants ‘reached an understanding’ to violate the plaintiff's constitutional rights.”
Grider v. City of Auburn, Ala., 618 F.3d 1240, 1260 (11th Cir. 2010). “[T]he linchpin for
conspiracy is agreement, which presupposes communication.” Bailey v. Bd. of Cty.
Comm'rs of Alachua Cty., Fla., 956 F.2d 1112, 1122 (11th Cir. 1992)
Plaintiff here has done no more than generally aver the existence of a conspiracy,
both prior to the alleged use of force and in the hours following. See Complaint at 19-20.
This Court is unable to decipher the nature of the conspiracy, who was involved in the
conspiracy to harm Smith prior to the use of force, and who was involved in the conspiracy
to delay treatment, destroy evidence, delay medical care, and conceal wrongful acts.
15
Not only are the facts unclear as alleged in the Complaint, the parties have failed to brief application of
the statute of limitations to the conspiracy claim.
18
Indeed, Plaintiff’s conspiracy claim, directed to all individual “Defendants” as a group, is
rendered even more unclear when considered in the context of the general factual
allegations, which are incorporated by reference. The general factual allegations
delineate different groups of Defendants involved at different points in time on the day
Smith allegedly was beaten. Plaintiff has not alleged specific facts indicating which
Defendants, or which discrete groups of Defendants, reached an understanding to harm
Smith. Plaintiff only states that “Defendants reached an implicit or explicit understanding.”
Complaint at 19. This vague statement, without reference to specific facts, is insufficient
to put Defendants on notice of the nature of the claim against them.
Plaintiff’s Complaint reads more like a “shotgun” pleading, “leaving the court with
the cumbersome task of sifting through myriad” allegations (170 paragraphs) to identify
facts that may support a conspiracy to harm Smith and deprive him of his constitutional
rights. See Fullman, 739 F.2d at 556–57. Moreover, some of the assertions of the
conspiracy against Smith do not rise to the level of a constitutional harm. While allegations
of the excessive use of force, failure to intervene, and denial of medical care may rise to
the level of constitutional violations, conclusory allegations of hiding and destroying
evidence and delaying disclosure to investigators do not implicate Smith’s constitutional
rights or reasonably permit this Court to draw such an inference.
In light of the deficiencies with respect to the conspiracy claim, the Court will grant
Plaintiff’s request to amend her Complaint. See Response at 18. While Plaintiff’s request
to amend has not been asserted in a proper motion, the Court finds that amendment of
the conspiracy claim is appropriate given the remaining claims are procedurally timebarred. Plaintiff is permitted to amend with respect to Count III only and not with respect
to claims that are barred by the statute of limitations. In permitting this amendment, the
19
Court reaches no decision as to whether a properly-pled cause of action for conspiracy
similarly may be barred by the statute of limitations.
Accordingly, it is
ORDERED:
1.
The Order to Show Cause (Doc. 38) is DISCHARGED. See Docs. 39, 41.
2.
The Court grants in part and denies in part Defendants’ Motions to Dismiss.
a.
Counts I, II, and IV are DISMISSED with prejudice due to Plaintiff’s failure
to file those claims within the applicable statute of limitations.
b.
Count III is DISMISSED without prejudice due to Plaintiff’s failure to state
a claim upon which relief may be granted. To the extent Plaintiff chooses to amend this
Count, she must do so by May 25, 2018.
3.
Defendants Jeffcoat and the FDOC are entitled to DISMISSAL from this
action. Adjudication to that effect will be withheld pending adjudication of the case as a
whole. See Fed. R. Civ. P. 54.
DONE AND ORDERED in Jacksonville, Florida, this 20th day of March, 2018.
Jax-6 3/20
c: Counsel of Record
20
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