Saunders v. Sheriff of Brevard County et al
Filing
25
ORDER denying without prejudice #10 motion to dismiss; denying #16 Motion to Strike ; granting #17 Motion for Reconsideration ; denying without prejudice #23 Motion to Compel Service. Directions to the Clerk. Signed by Judge Gregory A. Presnell on 8/19/2014. (TKW)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
OBERIST SAUNDERS,
Plaintiff,
v.
CASE NO. 6:14-cv-877-Orl-31DAB
BREVARD COUNTY SHERIFF, et al.,
Defendants.
ORDER
This case is before the Court on the following matters:
1.
Plaintiff’s Motion for Reconsideration (Doc. No. 17).
Plaintiff, an inmate
of the Florida penal system proceeding pro se, filed a civil rights complaint in the
Eighteenth Judicial Circuit Court for Brevard County, Florida (Doc. No. 1-6).
Defendants removed the case to this Court pursuant to 28 U.S.C. §§ 1441, 1443, and 1446
(Doc. No. 1).
Plaintiff alleges that the state court improperly dismissed Defendants Nunez, Tite,
Mangual, Wang, and Sedaros from the instant action (Doc. No. 17 at 1). In dismissing
Defendants Nunez, Tite, Mangual, Wang, and Sedaros, the state court found Plaintiff had
not followed the procedures set forth in section 766.104(1), Florida Statutes, for filing state
law claims of medical negligence in the State of Florida (Doc. No. 1-4 at 39). However,
Plaintiff does not allege claims of medical negligence against these Defendants. Instead,
Plaintiff alleges Defendants were deliberately indifferent to his medical care and thus
violated his Eighth Amendment rights.
Because Plaintiff alleges Eighth Amendment
claims against these Defendants, he is not required to comply with the pre-suit notice and
pleading requirements contained in sections 766.104 & 766.106, Florida Statutes.
See
Hatten v. O’Drain, No. 2:05-cv-6-FtM-34DNF, 2008 WL 59769, at * 5-7 (M.D. Fla. Mar. 4,
2008) (rejecting the defendant’s argument that the plaintiff’s complaint was subject to
dismissal due to his failure to comply with the pre-suit notice requirements found in the
Florida statutes because the plaintiff had raised an Eighth Amendment claim of deliberate
indifference to medical care and not a state law claim of medical negligence).
Accordingly, Plaintiff’s motion (Doc. No. 17) is GRANTED. The Clerk shall reinstate
Nunez, Tite, Mangual, Wang, and Sedaros as Defendants in this action.
2.
Plaintiff’s Motion to Strike Motion to Dismiss (Doc. No. 16). In support of
his motion, Plaintiff alleges that Defendants’ Motion to Dismiss is untimely and therefore,
it should be stricken. Id.
Defendants Brevard County Sheriff, Commander Susan Jeter, Corporal Wright,
and Patricia Tilley were served in the state court on May 16, 2014 (Doc. Nos. 3-6).
The
summonses indicate that the Defendants were required to serve an answer or defenses to
the amended complaint within twenty days from the date of service.
Id.
Instead,
Defendants removed the action to this Court (Doc. No. 1). Removal occurred on June 5,
2014, which was within the twenty-day time period.
Id.
Further, pursuant to Rule 81
of the Federal Rules of Civil Procedure, a defendant who does not answer before removal
must “answer or present other defenses or objections” within seven days after the notice
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of removal is filed.
Fed. R. Civ. P. 81(c). Defendants’ motion to dismiss, filed on June
12, 2014, was timely filed (Doc. No. 10).
Accordingly, it is ORDERED that Plaintiff’s
motion is DENIED.
3.
The Court has reviewed Plaintiff’s amended complaint and concludes that
Plaintiff has failed to adequately set forth his claims. Therefore, he will be required to
file a second amended complaint.
pled.
As currently written, the complaint is not sufficiently
For example, while Plaintiff lists his causes of action as counts one through three,
he then goes on to list “Issues” which may or may not be related to the causes of action.
In “Issue One,” Plaintiff lists many unrelated general conditions of the jail. It is unclear
to which count these general allegations relate.
Plaintiff should be sure to label each
cause of action separately and state what rights under the Constitution or laws of the
United States have been violated, and he should also include the relevant facts for each
cause of action under the same heading.
Furthermore, under “Issue Three” Plaintiff states Defendants acted with
deliberate indifference to his mental health and medical care needs. Plaintiff then lists
numerous unrelated medical incidents.
If Plaintiff intends to allege a number of related
claims, then he must set forth each claim in a separate paragraph in the same complaint.
However, if the claims are not related to the same basic issue or incident, then each claim
must be addressed in a separate complaint.
In addressing an unrelated claim in a
separate complaint, Plaintiff must complete a new civil rights complaint form for the
unrelated claim.
The Clerk of the Court will then assign a new case number for the
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separate complaint and inform Plaintiff of the new case number. Of course, Plaintiff
should file a second amended complaint in this action by placing the case number in this
action on a civil rights complaint form and choosing one of the claims to proceed with in
this action.
Plaintiff may at any time request more civil rights complaint forms for those
unrelated claims.
To amend his complaint, Plaintiff should completely fill out a new civil rights
complaint form, marking it SECOND AMENDED COMPLAINT.
The second
amended complaint must include all of Plaintiff’s claims in this action; it should not refer
back to the original complaint.
Plaintiff shall amend his complaint as described above
within TWENTY-ONE (21) DAYS from the date of this Order.
The Clerk of Court is
directed to SEND Plaintiff a standard civil rights form. Plaintiff is advised that the
failure to fully comply with this Order will result in the dismissal of this action
without further notice.
4.
Because Plaintiff will be required to submit a second amended complaint,
Defendants’ Motion to dismiss (Doc. No. 10) and Plaintiff’s Motion to Compel Sheriff’s
Office to Execute and Complete Service (Doc. No. 23) are DENIED without prejudice.
5.
Plaintiff shall immediately advise the Court of any change of address. He
shall entitle the paper “Notice to the Court of Change of Address” and not include any
motions in it.
This notice shall contain only information pertaining to the address
change and the effective date of such. Plaintiff must file a separate notice in each case that
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he has pending before the Court. Failure to inform the Court of an address change may
result in the dismissal of this case, without further notice of the Court.
6.
Plaintiff should not correspond with the Court in letter form.
Plaintiff
should file a pleading or motion with a title. The title should be a brief summary of the
contents of the pleading or motion.
As a matter of course, the Court will not respond to
Plaintiff's letters.
7.
Plaintiff should not attempt to correspond directly with a district judge or
magistrate judge.
They will not, as a matter of policy, respond to personal
correspondence when it pertains to a pending case. This policy is in keeping with their
sworn duty to maintain complete impartiality in the exercise of their judicial duties.
Accordingly, their decisions and opinions are, quite properly, only delivered in response
to those legal instruments filed with the Clerk's office in accordance with governing rules
of procedure. The Court will strike and return any correspondence addressed directly
to a district judge or magistrate judge.
DONE AND ORDERED in Orlando, Florida, this 19th day of August, 2014.
Copies to:
OrlP-3 8/19
Oberist Saunders
Counsel of Record
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