Dang v. Sheriff of Seminole County et al

Filing 68

ORDER denying 52 , 53 , and 54 motions to dismiss. Signed by Judge Gregory A. Presnell on 8/6/2014. (JU)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
NAM DANG,
Plaintiff,
v.

Case No: 6:14-cv-37-Orl-31TBS

SHERIFF OF SEMINOLE COUNTY,
FLORIDA, OLUGBENGA
OGUNSANWO, SANDRA WILT,
BRENDA PRESTON-MAYLE, ALECIA
SCOTT, SHARYLE ROBERTS and
MARTHA DENSMORE,
Defendants.
ORDER
This matter is before the Court on the Defendants Densmore, Roberts, and Scott’s Motion
to Dismiss (Doc. 52), Defendant Sheriff of Seminole County’s (“Sheriff”) Motion to Dismiss (Doc.
53), and Defendants Wilt and Preston-Mayle’s Motion to Dismiss (Doc. 54) as well as the Plaintiff’s
response to Densmore, Roberts, Scott, and the Sheriff’s Motions (Doc. 59) and response to Wilt and
Preston-Mayle’s Motion (Doc. 58).
I.

Background

The Plaintiff, Nam Dang, 1 asserts that during the twenty-nine days he was in custody of the
Seminole County Sheriff he was suffering from meningitis and that the Defendants failed to provide
sufficient medical care. 2 Ultimately, the Plaintiff suffered from multiple, sever brain infarctions

1
2

The Amended Complaint is brought by Vina Dang, under a power of attorney.

The factual allegations of the Amended Complaint are assumed to be true for purpose of
this Order.

(strokes), which resulted in permanent brain damage causing severe problems with cognition and
communication. The Plaintiff asserts that the Sheriff and medical staff that attended to him during
his detention deprived him of his constitutional right to receive necessary medical care and that he
is entitled to relief pursuant to 42 U.S.C. § 1983 (“§ 1983”).
The Plaintiff’s account of his illness begins when he was arrested on January 26, 2012. At
that time, the Plaintiff’s mother told the arresting officers that he was sick. He was subsequently
taken to the John E. Polk Correctional Facility in Seminole County. For the first few days of the
Plaintiff’s pretrial detention he was feeling ill, but was alert and coherent. On the fourth day he saw
Defendant Wilt due to a “nurse sick call” during which he reported moderate to severe head and
neck pain. He saw Defendant Wilt the next day and again reported worsening conditions. On the
following day he saw Doctor Ogunsanwo, 3 who found that the Plaintiff was running a fever. The
Amended Complaint charts out the subsequent days that the Plaintiff was in custody, chronicling
worsening symptoms and alleging various visits by individual defendants up to the point where the
Plaintiff’s symptoms became so severe that he was transported to a hospital. Upon admittance to the
hospital, the Plaintiff was almost immediately diagnosed with meningitis and began to receive
treatment for the disease. However, the damage had been done, and the Plaintiff is now left with
permanent impairment.
Defendants Densmore, Roberts, Scott, Wilt, and Preston-Mayle (the “Nurse Defendants”)
argue that the claims against them should be dismissed because they did not have subjective
knowledge that the Plaintiff had meningitis and even if they did, their acts do not constitute
deliberate indifference. They also claim entitlement to qualified immunity. The Sheriff’s Motion

3

Defendant Ogunsanwo has not moved to dismiss the Amended Complaint, instead he has
filed an answer. (Doc. 55).

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asserts that the Plaintiff has failed to assert a policy, custom, or practice that led to the alleged harm
and that there was no underlying constitutional violation.
II.

Standard

In ruling on a motion to dismiss, the Court must view the complaint in the light most
favorable to the Plaintiff, see, e.g., Jackson v. Okaloosa County, Fla., 21 F.3d 1531, 1534 (11th Cir.
1994), and must limit its consideration to the pleadings and any exhibits attached thereto. Fed. R.
Civ. P. 10(c); see also GSW, Inc. v. Long County, Ga., 999 F.2d 1508, 1510 (11th Cir. 1993). The
Court will liberally construe the complaint’s allegations in the Plaintiff’s favor.

Jenkins v.

McKeithen, 395 U.S. 411, 421 (1969). However, “conclusory allegations, unwarranted factual
deductions or legal conclusions masquerading as facts will not prevent dismissal.” Davila v. Delta
Air Lines, Inc., 326 F.3d 1183, 1185 (11th Cir. 2003).
In reviewing a complaint on a motion to dismiss under Federal Rule of Civil Procedure
12(b)(6), “courts must be mindful that the Federal Rules require only that the complaint contain ‘a
short and plain statement of the claim showing that the pleader is entitled to relief.’ ” U.S. v. Baxter
Intern., Inc., 345 F.3d 866, 880 (11th Cir. 2003) (citing Fed. R. Civ. P. 8(a)). This is a liberal
pleading requirement, one that does not require a plaintiff to plead with particularity every element
of a cause of action. Roe v. Aware Woman Ctr.for Choice, Inc., 253 F.3d 678, 683 (11th Cir. 2001).
However, a plaintiff’s obligation to provide the grounds for his or her entitlement to relief requires
more than labels and conclusions, and a formulaic recitation of the elements of a cause of action
will not do. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 554-555 (2007). The complaint’s
factual allegations “must be enough to raise a right to relief above the speculative level,” Id. at 555,
and cross “the line from conceivable to plausible.” Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct.
1937, 1950-1951 (2009).

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III.

Analysis
A. Nurse Defendants
1. § 1983 Claim

A claim for relief under § 1983 requires that the Plaintiff allege a “deprivation of an actual
constitutional right.” McElligott v. Foley, 182 F.3d 1248, 1254 (11th Cir. 1999). “It is well settled
that the deliberate indifference to serious medical needs of prisoners” constitutes a violation of the
Eighth Amendment. 4 Id. (internal citations omitted). Therefore, to establish a claim in this context
under § 1983, the Plaintiff must allege (1) a serious medical need, (2) deliberate indifference to that
need by the Defendants, and (3) a causal connection between Defendant’s deliberate indifference
and Plaintiff’s injuries. See Hatten v. Prison Health Services, Inc., 2006 WL 4792785 (M.D. Fla.
Sept. 13, 2006).
a. Serious Medical Need
There can be little doubt that the Plaintiff presented a serious medical need.
In our circuit, 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. In either of these
situations, the medical need must be one that, if left unattended, poses a substantial
risk of serious harm.
Farrow v. West, 320 F.3d 1235, 1243 (11th Cir. 2003) (internal quotes and citations omitted); see
also Carswell v. Bay Cnty., 854 F.2d 454, 457 (11th Cir. 1988) (noting that where some medical

4

The Amended Complaint asserts claims under the Fourteenth Amendment, which is
appropriate for pretrial detainees. However, in this context the Eighth and Fourteenth Amendment
standards are the same. Cottrell v. Caldwell, 85 F.3d 1480, 1490 (11th Cir. 1996) (noting that
Fourteenth Amendment Due Process Clause governs pretrial detainees in custody but holding that
the Eighth and Fourteenth Amendment standards are applied the same); Smith v. Vavoulis, 373 F.
App’x 965, 966 (11th Cir. 2010) (same, addressing standards in context of excessive force claim).

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care was provided but diagnosis was incorrect and worsening symptoms were ignored, serious
medical need could have been found by jury).
From at least the fourth day in custody the Plaintiff was experiencing severe and increasing
neck and back pain which ultimately lead to minimal neck rotation, bouts of unconsciousness, and
fever. (Doc. 47 ¶¶ 18-44). On the fifth day, Defendant Wilt recognized the need for a physician.
After that the Plaintiff’s symptoms continued to worsen over a considerable period of time and
became so bad that he eventually ended up in a wheelchair, nonverbal, passed out, drooling, and
sliding to the floor. (Id. ¶¶ 18-46, 96). Accordingly, the allegations of the Amended Complaint
clearly establish that the Plaintiff presented a serious medical need.
b. Deliberate Indifference
In Farmer v. Brennan the Supreme Court held:
[A] prison official cannot be found liable under the Eighth Amendment for denying
an inmate humane conditions of confinement unless the official knows of and
disregards an excessive risk to inmate health or safety; the official must both be
aware of facts from which the inference could be drawn that a substantial risk of
serious harm exists, and he must also draw the inference.
Farmer v. Brennan, 511 U.S. 825, 837 (1994) (explaining the meaning of “deliberate
indifference” to a risk of harm to an inmate). The Eleventh Circuit has taken this to mean that
deliberate indifference has three components: (1) subjective knowledge of a risk of serious harm;
(2) disregard of that risk; (3) by conduct that is more than gross negligence. see Townsend v.
Jefferson Cnty., 601 F.3d 1152, 1158 (11th Cir. 2010) (“claim of deliberate indifference requires
proof of more than gross negligence”); Farrow, 320 F.3d at 1246-47 (“This substantial and
inordinate delay in treatment raises a jury question as to [the defendant physician’s] deliberate
indifference towards [the plaintiff’s] serious medical need.” (internal quotations and citations
omitted)).

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1. Subjective Knowledge of Risk
The allegations of the Complaint also paint a compelling portrait of deliberate indifference
to the Plaintiff’s risk of serious harm. The Nurse Defendants who regularly attended to the Plaintiff
over a period of weeks were well aware of his declining health. 5 (See Doc. 47 ¶ 49 (noting that all
Nurse Defendants “ignored worsening signs and symptoms of a serious medical condition” between
January 26, 2012 to February 23, 2012). During his twenty-nine days at the jail, the Plaintiff
repeatedly complained of headache and neck pain. He developed a fever on his seventh day and his
condition continued to worsen to the point that he became virtually comatose. Thus, the Plaintiff
has adequately pled that the nurse Defendants had subjective knowledge of the Plaintiff’s serious
medical condition.
2. Disregard of Risk by Conduct Exceeding Gross Negligence
It is clear that the Nurse Defendants (and Dr. Ogunsanwo) disregarded the Plaintiff’s need
for medical treatment. Over the prolonged course of his confinement, it appears Plaintiff was seen
by a doctor only once and the Defendants’ response to his illness was to put him on muscle relaxants
and return him to the general jail population. There appears to have been no meaningful effort to
diagnose his problem; opting instead to simply watch his condition deteriorate. On the fifteenth day
of his confinement, eight days after fever onset, the Plaintiff was running a temperature of 101.5ºF. 6

5

Defendants Wilt and Preston-Mayle attempt to rely on documentary evidence to
demonstrate that the Plaintiff told them an ulterior reason that he was experiencing pain—in other
words these documents purport to demonstrate a lack of subjective knowledge of serious medical
need because they believed Dang’s complaints were caused by a physical altercation. (Doc. 54 at 5
n.1, 11 n.3, and 12 n.4). These fact arguments in footnotes are not appropriate for a motion to
dismiss. The exhibits will not be considered, they are a part of a factual dispute, and should
accordingly be addressed at summary judgment.
6

It is general medical knowledge that fever suggests infection, and it requires medical
attention if it lasts more than three days. See, e.g., Fever: First aid, Mayo Clinic (Apr. 17, 2012),
available at http://www.mayoclinic.org/first-aid/first-aid-fever/basics/art-20056685 (When to Seek

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(Doc. 47 ¶ 28). On the twenty-seventh day, Roberts responded to an emergency medical alert and
observed Plaintiff in a wheelchair, passed out and sliding to the floor. (Id. ¶ 36). In response, Roberts
wrote it up as an attempt to fake unconsciousness. (Id.) On February 22, 2012, the twenty-eighth
day, Densmore noted that Plaintiff could not sit up and was still running a fever. (Id. ¶ 38).
Nevertheless, he was left in the general population to be attended to by untrained corrections
personnel. (Id. ¶ 39). Finally, on February 23, 2012, when Plaintiff became lethargic, unresponsive,
and unable to communicate, he was taken to Central Florida Regional Hospital, where he was
diagnosed as suffering from cryptococcal meningitis.
By any measure this conduct is more than gross negligence. As pled, this conduct constitutes
deliberate indifference to a serious medical need, which is actionable under § 1983.
c. Causal Connection
The Plaintiff’s meningitis was allowed to go undiagnosed and untreated for twenty-nine days
while he languished at the Seminole County Jail. When he was finally hospitalized, and proper
treatment begun, it was too late to avoid permanent impairment. Since meningitis is a condition that
must be aggressively treated as soon as possible (Doc. 47 ¶ 50), the delay in seeking proper treatment
for Plaintiff satisfies the casual connection prong of deliberate indifference claim.
2. Qualified Immunity
The Nurse Defendants assert that they were acting within the scope of their discretionary
duties and are entitled to qualified immunity. In order to overcome immunity, Plaintiff must show
that the Defendants violated a clearly established constitutional right. Townsend v. Jefferson Cnty.,
601 F.3d 1152, 1157-58 (11th Cir. 2010) (to lose entitlement to qualified immunity, a plaintiff must

Medical Help section notes that adults should seek medical help if a fever lasts for more than three
days).

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show that a “(1) the defendant violated a constitutional right, and (2) this right was clearly
established at the time of the alleged violation”). Deliberate indifference to the serious medical need
of a prisoner is the violation of such a right. See McElligott, 182 F.3d at 1254. The Nurse Defendants
are not entitled to qualified immunity.
B. Defendant Seminole County Sheriff
There is no vicarious liability under § 1983. Thus, to hold the Sheriff liable for a violation
of the Plaintiff’s constitutional rights, there must be conduct attributable to the chief policy maker
that caused the alleged constitutional deprivation. This may be established in one of three ways: 1)
conduct by the policy maker him or herself; 2) an express policy promulgated by the policy maker;
or 3) an implied policy from a custom or practice that is sufficiently persistent from which to infer
the imprimatur of the policy maker. See Engelleiter v. Brevard County Sheriff’s Dept., 290 F. Supp.
2d 1300, 1309 (M.D. Fla. 2003).
For obvious reasons, most failure to train claims under § 1983 rely on an implied policy from
a custom or practice. See Grech v. Clayton Cnty., Ga., 335 F.3d 1326, 1329-30 (11th Cir. 2003)
(noting that officially adopted policies are rare and most § 1983 plaintiffs must show custom or
practice). Typically, to show a custom or practice a plaintiff must allege prior, similar incidents of
harm that would put the government on notice of the need to train. See Gold v. City of Miami, 151
F.3d 1346, 1350 (11th Cir. 1998) (noting that courts typically require notice of need to train through
prior similar instances). But here, there are no allegations of prior instances from which a policy of
medical neglect can be inferred. Instead, Plaintiff relies on allegations that the lack of meaningful
health care training of jail personnel was reckless and created an obvious risk that the constitutional
right to adequate medical care would be violated.
In City of Canton, Ohio v. Harris the Supreme Court said:

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[I]t may happen that in light of the duties assigned to specific officers or employees
the need for more or different training is so obvious, and the inadequacy so likely to
result in the violation of constitutional rights, that the policymakers of the city can
reasonably be said to have been deliberately indifferent to the need.
City of Canton, Ohio v. Harris, 489 U.S. 378, 390 (1989).
Opinions by other judges of this Court have followed suit. See Hargis v. City of Orlando,
Fla., 6:12-CV-723-ORL-37, 2013 WL 451406 at *2-3 (M.D. Fla. Feb. 6, 2013) (finding allegations
of obvious need for training sufficient to survive motion to dismiss); c.f. Degraw v. Gualtieri, 8:11CV-720-EAK-MAP, 2013 WL 6002837 at *6-7 (M.D. Fla. Nov. 12, 2013) (denying partial
summary judgment on municipal § 1983 liability on basis that policy based on budgetary concerns
that permitted psychotic detainee to go unevaluated for up to fourteen days raised jury question).
This is such a case. It is alleged that the lack of suitable training and staffing of medical
personnel at the jail was the result of deliberate cost-cutting efforts by the Sheriff. (Doc. 47 ¶¶ 5770). Accordingly, the allegations of the Amended Complaint are sufficient to sustain a § 1983 claim
against the Sheriff.
It is, therefore,
ORDERED, the Motions to Dismiss (Docs. 52, 53, and 54) are DENIED.
DONE and ORDERED in Chambers, Orlando, Florida on August 6, 2014.

Copies furnished to:
Counsel of Record
Unrepresented Party

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