Bryant v. Orange County, Florida et al

Filing 44

ORDER denying 31 motion to dismiss; denying 31 Motion to Dismiss for Failure to State a Claim; denying 32 Motion to Dismiss for Failure to State a Claim; granting in part and denying in part 33 motion to dismiss. It is hereby ORDERED that Defendant Clairmont's Motion to Dismiss (Doc. 31) and Defendant Evans's Motion to Dismiss (Doc. 32) are DENIED. The Collective Motion to Dismiss (Doc. 33) is GRANTED as to Count I and DENIED as to all other Counts. Count I is DISMISSE D without prejudice. If Plaintiffs wish to amend their Complaint as to Count I, they must do so by January 22, 2018. Orange County's Motion for Extension of Time to Answer the State Law Claim (Doc. 33) is GRANTED, and Orange County is hereby afforded fourteen (14) days from the date of this Order to file its answer and affirmative defenses. The other Defendants shall also answer the Amended Complaint within fourteen (14) days.Signed by Judge Gregory A. Presnell on 1/8/2018. (MAF)

LUNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
WILLINE BRYANT and MAX GRACIA,
SR. ,
Plaintiffs,
v.

Case No: 6:17-cv-1423-Orl-31KRS

ORANGE COUNTY, FLORIDA,
ROBERT J. BUCK, III , MARYANNE
EVANS, KAREN CLAIRMONT, ELSA
GALLOZA-GONZALEZ and LYNN
MARIE HARTER,
Defendants.

ORDER
This matter comes before the Court on Defendant Clairmont’s Motion to Dismiss (Doc.
31); Defendant Evans’ Motion to Dismiss (Doc. 32); the Motion to Dismiss filed by Defendants
Buck, Gonzalez, Harter, and Orange County (“Collective Motion”) (Doc. 33); the Response in
Opposition filed by the Plaintiffs (Doc. 40); and the Reply filed by Defendants Buck, Gonzalez,
Harter, and Orange County (Doc. 41).
I.

Background
A. Facts as Alleged in the Complaint
During his arrest on August 6, 2015, Max Gracia, Jr. (“the Decedent”) suffered dog bite

wounds to his hands and legs. Amend. Compl., Doc. 29, ¶ 21. Although the Decedent received
multiple dog bites on both his hands and legs, at least some of which were severe, the Plaintiffs do

not seek any relief with respect to the initial dog bite injuries themselves.1 The Decedent received
some treatment for those wounds at Orange County Regional Medical Center, and later on the day
of his arrest, the Decedent was admitted to the Health Services Department, also known as
Corrections Health Services (“CHS”) of Orange County Corrections (“OCC”). Id.
The Decedent’s injuries resulted in an assignment to the Infirmary as his housing unit at
OCC. Id. ¶ 22. Around the time of his admission to the Infirmary, Defendant Robert Buck III,
M.D. (“Buck”) evaluated the Decedent and noted that he “had multiple dog bites with severe flesh
involvement.” Id. In addition to diagnosing multiple dog bites, Buck put the Decedent back on his
seizure medication, prescribed antibiotics and pain medications, including ibuprofen and Tylenol
#3, and noted that, upon verification that the Decedent “had been compliant in the community,”
Atripla2 should be ordered. Id. ¶ 22-23. Buck did not order Atripla for the Decedent, and
according to the Plaintiffs, “Buck never saw or inquired about [the Decedent] again.” Id. ¶ 23. A
summary of what happened to the Decedent next, based on the facts alleged in the Amended
Complaint, follows.
On August 7, 2015, the Decedent’s “wounds were cleaned and dressed” by Defendant Elsa
Galloza-Gonzalez (“Gonzalez”).3 Id. ¶ 25. At that time, at least one of his wounds was “reddened
with scant serosanguineous drainage present.” Id. At some point on the same day, Defendant

1

The Plaintiffs filed suit as co-personal representatives of the estate of the Decedent.

2

Although not detailed in the Complaint, Atripla is apparently an antiviral medication
used to treat HIV infections. What is Atripla?, ATRIPLA, http://www.atripla.com/about/
(accessed December 28, 2017).
3

This was recorded in a Nursing Treatment Note, completed at 5:20 PM on August 7,

2015.

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Karen Clairmont (“Clairmont”) allegedly saw the Decedent, but did not obtain his vital signs or
perform any physical assessment.4 Id. ¶ 26.
On August 8, 2015, the Decedent was educated about the risk of infection and was told to
increase his fluid intake.5 Id. ¶ 27. The Decedent’s wound dressing was changed, and Gonzalez
again noted that the wound on his left leg was “reddened with scant serosanguineous drainage.”6
Id. ¶ 28. The Decedent vomited twice, and no vital signs were taken, but the Decedent was later
given odansetron.7 Although the wound was reddened and the Decedent complained of vomiting,
Gonzalez recorded that he showed “no signs or symptoms of infection.” Id. ¶ 28, 29.
On August 9, 2015, at 6:35 AM, the dressing on the Decedent’s left leg wound was
changed. The wound was reddened and had “a large amount of bloody drainage.”8 Id. ¶ 30. The
Decedent complained of dizziness and weakness, and at some point that morning, his vital signs
were taken for the first time in fifty-five hours, revealing tachycardia9 of 131 and a respiratory

4

This was recorded in a Nursing Progress Note, completed at 7:07 AM on August 8, 2015.

5

This was recorded by Gonzalez in a Nursing Progress Note, completed at 11:38 AM on
August 8, 2015.
6

This was recorded in a Nursing Treatment Note, completed at 4:59 PM on August 8,

2015.
7

This was recorded by Gonzalez at 5:13 PM on August 8, 2015. Defendant Maryanne
Evans (“Evans”) co-signed the order for odansetron at 5:00 PM on August 9, 2015. It is unclear
whether the Decedent was given odansetron before or after the order was co-signed.
8

This was recorded by Clairmont in a Nursing Progress Note, completed at 6:38 AM on
August 9, 2015. The Note had the exact same language as the one recorded by Clairmont on the
previous day. Id. ¶ 31.
“Tachycardia occurs when an abnormality in the heart produces rapid electrical signals
that quicken the heart rate, which is normally about 60 to 100 beats a minute at rest.” Tachycardia,
MAYO CLINIC, https://www.mayoclinic.org/diseases-conditions/tachycardia/symptoms-causes/syc20355127 (accessed January 5, 2018).
9

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rate of 22. Id. ¶ 32. In response to his abnormal vital signs, Evans ordered an increased fluid
intake.10 Id. The Decedent’s vital signs were never taken again. Id. At 9:00 PM, the Decedent
twisted and moaned loudly in bed, said that he “can’t do it,” and fell to the ground.11 Id. ¶ 37. At
some point prior to 9:54 PM, the Decedent “refused to get up for his evening medications.”12 Id. ¶
33.
At around 11:16 PM on August 9, 2015, an officer and two supervisors came to transfer
the Decedent to a different housing unit. Id. ¶ 35. At the time, the Decedent was unresponsive,
groaning lethargically, and laying on the floor. Id. Clairmont was present and told the officers that
he was “‘faking or exaggerating his medical condition and inability to get up.’” Id. The officer
and two inmate workers physically moved the Decedent to a cell with a recording camera, in order
to “‘ascertain the validity of his proclaimed illnesses.’” Id. The Decedent was documented as
compliant. Id. However, a disciplinary report was filed against the Decedent because he
“refus[ed]” to follow orders in connection with the transfer; instead, the Decedent lay on his back
on the floor and “refus[ed] all treatment.”13 See id. ¶ 38.

10

This was recorded by Gonzalez in a Nursing Progress Note, completed at 10:29 AM on
August 9, 2015. Thus, it appears that Evans ordered the increased fluid intake prior to co-signing
the odansetron order. See supra n.7 and accompanying text.
11

This was recorded by Clairmont at 3:13 AM on August 10, 2015.

This was recorded by Lynn Marie Harter (“Harter”) in a Nursing Note, completed at
9:54 PM on August 9, 2015.
12

13

This was recorded by Clairmont in a Nursing Progress Note, completed at 3:35 AM on
August 10, 2015.

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On August 10, 2015, at 2:58 AM, a corrections investigator tried to “interrogate” the
Decedent with respect to the disciplinary report. Id. ¶ 36. The Decedent was unable to reply to the
corrections investigator. Id.
At approximately 5:15 AM, an officer informed Clairmont that the Decedent was not
breathing.14 Id. ¶ 39. Clairmont observed the Decedent on his back in bed, with no pulse or
respirations; at that time, efforts to revive the Decedent began and continued until EMS arrived
and transported the Decedent at 5:48 AM. Id. At 6:09 AM, the Decedent was pronounced
deceased at Orlando Regional Medical Center. Id. ¶ 40. An Autopsy Report concluded that the
manner of his death was homicide, due to his incarceration, and that the cause of death was “septic
shock complicating infected dog bite wounds” with HIV as a contributory factor. Id. ¶ 41.
B. Procedural History
On September 18, 2017, the Plaintiffs filed the Amended Complaint. Doc. 29. Count I
alleges a § 1983 claim against Orange County, Count II alleges a § 1983 claim against Buck,
Count III alleges a § 1983 claim against Evans, Count IV alleges a § 1983 claim against
Clairmont, Count V alleges a § 1983 claim against Gonzalez, Count VI alleges a § 1983 claim
against Harter, and Count VII alleges a medical malpractice claim against Orange County.15
Defendants Clairmont and Evans each filed individual motions to dismiss on October 2,
2017. Docs. 31, 32. That same day, Defendants Orange County, Buck, Gonzalez, and Harter filed
a collective motion to dismiss (“Collective Motion”). Doc. 33. The Plaintiffs filed a Response on

14

This was recorded by Clairmont in a Nursing Progress Note, completed at 8:02 AM on
August 10, 2015.
15

Orange County concedes that a state law cause of action has been stated against it for
purposes of the Collective Motion. Doc. 33 at 2.

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October 31, 2017, and Defendants Orange County, Buck, Gonzalez, and Harter filed a collective
Reply on November 15, 2017. Docs. 40, 43.
II.

Standard of Review
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. See
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. See
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, 680 (2009).

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III.

Analysis
A. Legal Standards
“To survive a motion to dismiss based upon qualified immunity, the plaintiff must have

alleged sufficient facts to support a finding of a constitutional violation of a clearly established
law.” Chandler v. Sec'y of Florida Dep't of Transp., 695 F.3d 1194, 1198 (11th Cir. 2012).
Otherwise, qualified immunity protects government officials who were acting within their
discretionary authority. Franklin v. Curry, 738 F.3d 1246, 1249 (11th Cir. 2013). There is no
dispute as to whether the Defendants were acting within the scope of their discretionary authority,
nor is there a dispute as to whether, if the Defendants did in fact violate the Decedent’s
constitutional rights, those constitutional rights were clearly established at the time of the
violations. Accordingly, the sole question before the Court on the matter of qualified immunity is
whether the Plaintiffs have alleged the violation of a constitutional right.
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. Id. (internal quotation marks 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). For purposes of the Motions to Dismiss, Clairmont,
Buck, Harter, Gonzalez, and Orange County have conceded that the Plaintiffs have met the third
component, and Evans does not dispute this. Accordingly, the Court addresses only the first two
components.

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Because, in this particular case, the analyses for whether the Defendants are entitled to
qualified immunity and whether the Plaintiffs have failed to state a claim for relief under § 1983
both turn on whether the Plaintiffs have properly alleged the violation of a constitutional right, the
Court combines its discussion of the two issues.
B. Violation of a Constitutional Right
1. Serious Medical Need
For purposes of their motions to dismiss, Clairmont, Orange County, Buck, Harter, and
Gonzalez have conceded that the Plaintiffs have met this objective component. Doc. 31 at 5; Doc.
33 at 6.16 Evans appears to argue that her treatment of the Decedent nineteen hours before his
death somehow “establish[es] the objective component that Max Gracia, Jr. did not have a serious
and obvious medical need.” Doc. 32 at 6-7.
Here, there can be little doubt that the Decedent 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 quotation marks and citations
omitted); see also Carswell v. Bay Cnty., 854 F.2d 454, 457 (11th Cir. 1988) (noting that where
some medical care was provided but diagnosis was incorrect and worsening symptoms were
ignored, serious medical need could have been found by jury).

16

Oddly, those Defendants still take time to argue that HIV-positive status cannot
constitute a serious medical need “without upsetting the entire body of relevant case [] law.” Doc.
33 at 7. On the contrary, HIV has been recognized as a serious medical need by the Eleventh
Circuit and the Middle District of Florida. McMillan v. Hunter, 2007 WL 570180, at *3 (M.D. Fla.
Feb. 20, 2007) (citing Brown v. Johnson, 387 F.3d 1344, 1351 (11th Cir. 2004)).

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2. 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.
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)). Importantly, “an Eighth Amendment
claimant need not show that a prison official acted or failed to act believing that harm actually
would befall an inmate; it is enough that the official acted or failed to act despite his knowledge of
a substantial risk of serious harm.” Farmer, 511 U.S. at 842.
Obviously, the success of the Plaintiffs’ claims will ultimately depend on what the
Defendants knew about the Decedent’s medical condition and why they did little if anything to
address it. But at this stage, the Plaintiffs do not need to persuade the Court that the Defendants
acted in deliberate indifference to the Decedent’s medical needs. As Clairmont points out, “[t]he
question is . . . whether the facts could plausibly show that any of the individual Defendants were
deliberately indifferent to the serious medical need.” Doc. 31 at 5-6. It is possible that this tragedy
was borne of innocent unawareness, negligent miscommunication, or well-intentioned

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misdiagnosis. However, viewing the Amended Complaint in the light most favorable to the
Plaintiffs, it is also plausible that the Defendants acted with deliberate indifference in delaying to
or failing to attend to the Decedent’s serious medical need.
Summary of the Individual Defendants
While the Court examines the alleged actions of each individual Defendant for purposes of
the deliberate indifference analysis, the collective knowledge possessed and actions taken by the
individual Defendants together as a medical team merit some discussion. Viewing the Amended
Complaint in the light most favorable to the Plaintiffs, all of the individual Defendants were aware
of the Decedent’s HIV positive status and his dog bite wounds, and thus were aware of the
elevated risk for infection. The Decedent’s deterioration cannot be described as asymptomatic. He
experienced and reported nausea, vomiting, and weakness. In addition to those symptoms, there
were visible signs of his worsening condition: the amount of drainage from the reddened wound
increased, and that increase was noted and documented. When his vital signs were finally taken,
he had an elevated heart rate of 131 and a respiratory rate of 22; where infection is probable, a
heart rate higher than 90 and a respiratory rate higher than 20 are sufficient for a sepsis
diagnosis.17 The extent of the “treatment” provided to the Decedent following the reveal of his
troubling vital signs was an order for an increased fluid intake. See Doc. 29 ¶ 32. No one ever took
his vital signs again during the short remainder of his life. Even when the Decedent was
unresponsive and groaning on the floor, the primary concern was apparently moving him to a cell
with a camera so that evidence of any malingering could be captured in support of the disciplinary
17

Compare Doc. 29 ¶ 32 with Sepsis: Overview, MAYO CLINIC,
https://www.mayoclinic.org/diseases-conditions/sepsis/symptoms-causes/syc-20351214?p=1
(accessed January 2, 2018). The Center for Disease Control’s website directs those looking for
information on sepsis to the cited Mayo Clinic summary of sepsis. See
https://www.cdc.gov/sepsis/basic/index.html (accessed January 2, 2018).

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report filed against him. While no one re-checked the Decedent’s vital signs, his “refusal” to get
up and take his medication was repeatedly documented, and arrangements were made for an
investigator to interrogate the Decedent in his cell. It is unclear whether the Decedent was dead or
alive during the interrogation attempt, but even if he was still alive, he was certainly fewer than
three hours away from drawing his last breath.
Defendant Clairmont
Contending that the Plaintiffs’ allegations focus on a failure to diagnose and respond to the
Decedent’s infection, Defendant Clairmont states that “no human can deliberately ignore an
undiagnosed condition they are unaware of.” Doc. 31 at 6. That undiagnosed condition, according
to Defendant Clairmont, is “a quickly progressing, acute infection from the dog bite complicated
by HIV.” Doc. 31 at 6. While a formal diagnosis would show a medical need, a medical need can
certainly exist in the absence of a formal diagnosis. To accept the argument advanced by
Defendant Clairmont would be to perversely incentivize complete denial of medical care in certain
situations.18 A medical professional cannot bury her head in the sand, fail to obtain a diagnosis for
an obvious medical need, and avoid liability. Indeed, under some circumstances, the fact that a
condition is undiagnosed may itself be evidence that there was deliberate indifference. Deliberate
indifference requires subjective knowledge of a risk; it does not require the Defendants to have
been certain that the Decedent had a life-threatening infection.19

For example, here, the logical extension of Defendant Clairmont’s argument is that, if
the defendants were cautious and attentive enough to diagnose the infection, they would have been
more susceptible to liability for deliberate indifference than they are under the instant facts.
18

19

Notably, however, it appears that such certainty may have been plausible even with only
the information that Clairmont had, at least after the Decedent displayed abnormal vital signs. See
supra n.17 and accompanying text.

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On August 8, 2015, the Decedent vomited twice. Doc. 31 at 8. The morning after the
Decedent experienced vomiting, Clairmont “attended to the wound,” and allegedly documented
that the “wound ‘was reddened with a large amount of bloody drainage.’” Doc. 31 at 8. On August
9, the Plaintiff alleges that Clairmont told corrections officers that the Decedent, who was “lying
on the floor groaning in a lethargic manner” was “faking or exaggerating.” Doc. 29 ¶ 35.
Clairmont’s Motion compares her actions to those of a defendant nurse in Dang v. Seminole
County, a recent Eleventh Circuit case. See 871 F.3d 1272 (11th Cir. 2017). In Dang, a nurse
believed that an inmate was voluntarily appearing unconscious, drooling, and acting as though he
was unable to speak or sit up. Id. at 1282. However, that nurse performed an assessment of the
inmate; took his vital signs, which were normal; and admitted the inmate to the infirmary, where
he would be seen by doctors. Id. Here, taking the facts in the Complaint as true, Clairmont did
nothing of the sort, despite the Decedent’s abnormal vital signs earlier that day and the large
amount of bloody drainage that Clairmont herself documented.
While the Eleventh Circuit has held that mere negligent misdiagnosis is not a constitutional
violation, misdiagnosis of an illness obviously does not immunize prison officials from § 1983
liability. Deliberate indifference toward a serious medical need can plausibly be present where
there is a “misdiagnosis” such as the one here. Even to the extent that labeling an HIV positive
prisoner who suffered from a severe dog bite as “faking” symptoms of sepsis could be considered
a misdiagnosis and not something more nefarious, the Court has no reason to assume that
Clairmont truly believed the Decedent was faking. It is the allegations in the Amended Complaint
that the Court must take as true, not the self-serving arguments made by the Defendants. The
Plaintiffs have properly stated a claim against Defendant Clairmont.

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Defendant Gonzalez
Contending that Gonzalez responded to the Decedent’s vomiting by notifying a provider
and prescribing specific treatment, the Collective Motion asserts that the Plaintiffs “do not suggest
that Gonzalez had actual knowledge of a serious medical condition and ignored it with impunity.”
Doc. 33 at 8 (emphasis in original). Gonzalez also notified Evans of Decedent’s complaints of
weakness and dizziness, and the Collective Motion points to that course of action as evidence of
“attentiveness.” However, the Plaintiffs specifically alleged that Gonzalez knew how dangerous
the Decedent’s condition was, but failed to continue to monitor him, even though she documented
that she would do so. Doc. 29 ¶ 45. The Collective Motion argues that Gonzalez’s failure to obtain
vital signs “at worst would constitute a failure to adhere to an appropriate standard of care.” Doc.
33 at 8. This argument is a truism: any deliberate indifference to an obvious medical need would
constitute a failure to adhere to an appropriate standard of care. Certainly, it is plausible that the
facts that show a failure to adhere to an appropriate standard of care could also show deliberate
indifference. Here, the Plaintiffs have plausibly alleged that Gonzalez’s actions constituted
deliberate indifference.
Defendant Harter
Allegedly, Harter made notes that the Decedent “refused to ‘get up for his evening
medications.’” Doc. 33 at 9. The Collective Motion argues that Harter’s actions do not provide a
sufficient basis for pleading that she was deliberately indifferent to the Decedent’s serious medical
need. According to the Plaintiffs, the Decedent did not get up for his evening medications because
he was so weak that he was physically incapable of getting out of bed. Doc. 40 at 11. The
Plaintiffs claim that Harter knew that the Decedent “was immunocompromised and was at serious
risk for infection due to his wounds,” Doc. 29 ¶ 51, yet disregarded that risk in failing to provide

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care for the Decedent. Id. ¶ 90-94. Viewing the Amended Complaint in the light most favorable to
the Plaintiffs, Harter was aware that the Decedent was at a serious risk of infection, but Harter did
nothing when the Decedent did not get up to take medication, notwithstanding the fact that the
Decedent had abnormal vital signs earlier that day, and had complained of weakness, dizziness,
and vomiting. The Plaintiffs’ allegations raise the right to relief above the speculative level here; it
is plausible that Harter acted with deliberate indifference to the Decedent’s serious medical need.
Defendant Evans
Evans argues that she was not deliberately indifferent because she responded to the
Decedent’s complaints and provided treatment that she believed was appropriate at the time. Doc.
32 at 10. Like Clairmont, Evans attempts to analogize to a nurse in the Dang case who failed to
take the inmate’s vitals. However, that nurse performed a physical assessment of the inmate, and
there was no indication that obtaining the inmate’s vital signs would have been helpful, as his vital
signs were normal thirty-six hours later. Dang, 871 F.3d at 1281. Evans contends that the
Amended Complaint “does not plead that Evans had a subjective knowledge of risk of serious
harm to [the Decedent] or sufficient facts to make that claim plausible.” Doc. 32 at 5.
The Second Amended Complaint does indeed plead sufficient facts to make such a claim
plausible; the Plaintiffs aver that Evans “knew [the Decedent] was immunocompromised and was
at serious risk for infection due to his wounds.” Doc. 29 ¶ 51. Despite this knowledge, the
Plaintiffs allege, Evans failed to evaluate the Decedent and was responsible for his discharge from
the infirmary. Doc. 29 ¶ 46. The Plaintiffs have plausibly alleged that Evans was deliberately
indifferent to the Decedent’s serious medical need.

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Defendant Buck
While § 1983 does not permit respondeat superior liability, a supervisor can be held liable
where a plaintiff shows “that the supervisor either directly participated in the unconstitutional
conduct or that a causal connection exists between the supervisor’s actions and the alleged
constitutional violation.” Keith v. DeKalb Cty., 749 F.3d 1034, 1047-48 (11th Cir. 2014). The
Plaintiffs can show a causal connection by showing that “the supervisor’s policy or custom
resulted in deliberate indifference.” Franklin v. Curry, 738 F.3d 1246, 1249 (11th Cir. 2013)
(internal quotation marks omitted). The Collective Motion protests that Buck only had direct
contact with the Decedent when the Decedent was first admitted, and that he therefore had no
reason to know a serious medical condition existed. Doc. 33 at 12. The Plaintiffs allege that Buck
was actually aware of the Decedent’s severe wound and HIV positive status, yet he never followed
up with the Decedent in any way. See Doc. 29 ¶ 21-23. Thus, the Plaintiffs’ allegations are not
limited to Buck as a supervisor, but include Buck’s actions as an “individual provider.” See Doc.
40 at 15. Buck need not have been continuously aware of updates to the Decedent’s condition to
have been deliberately indifferent to a serious risk of harm to the Decedent, because he already
knew of the severe wound and the HIV positive status, which together constituted the serious risk
of harm. Cf. Bowen v. Warden Baldwin State Prison, 826 F.3d 1312, 1324 (11th Cir. 2016)
(explaining that the defendants’ unawareness of additional factors that would have enhanced their
knowledge of the risk of harm did not negate the fact that they already knew of a risk of serious
harm apart from those factors). The fact that he failed to follow up is not proof positive of
deliberate indifference, to be sure, but based on the Plaintiffs’ allegations, it is plausible that Buck
was deliberately indifferent to the Decedent’s serious medical need.

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Defendant Orange County
In Monell v. Dept. of Soc. Servs. of New York, the Supreme Court rejected the proposition
that municipalities can be held liable under the doctrine of respondeat superior. 436 U.S. 658, 694
(1978). Instead, a plaintiff is required to show that the Constitutional injury alleged was the result
of a custom or policy. Id. Where no stated policy exists, a plaintiff must show that there was a
pattern of deliberate indifference that is “so widespread as to have the force of law.” Bd. of Cnty.
Comm'rs of Bryan Cnty v. Brown, 520 U.S. 397, 404 (1997); see also Craig v. Floyd Cnty., 643
F.3d 1306, 1310–11 (11th Cir. 2011). Municipal liability may be based on a claim of inadequate
training where “a municipality's failure to train its employees in a relevant respect evidences a
deliberate indifference to the rights of its inhabitants such that the failure to train can be properly
thought of as a city policy or custom that is actionable under § 1983.” Albra v. City of Ft.
Lauderdale, 232 Fed. App'x 885, 890 (11th Cir. 2007) (citations omitted).
The Plaintiffs allege that the Decedent’s death was the result of “an unwritten policy of
allowing documentation to be minimized to twice a week unless there was a change in the
patient’s medical condition.” Doc. 29 ¶ 63. Additionally, the Plaintiffs aver that the “facility was
medically understaffed, presumably due to budgetary concerns.” See id. However, because there is
no stated policy, the Plaintiffs would need to plausibly allege that there was a widespread pattern
of deliberate indifference. The Plaintiffs have not done so. Accordingly, the Collective Motion to
Dismiss is GRANTED as to Count I.
IV.

Conclusion
The Defendants describe this tragedy as a mere misdiagnosis. In a sense that may be

correct. While the Decedent lay dying in his cell on August 10th, the camera rolled as the

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Defendants pursued their diagnosis of malingering. Faced with objective evidence of a serious
medical need, an unfounded diagnosis of malingering is the epitome of deliberate indifference.
For the foregoing reasons, it is hereby ORDERED that Defendant Clairmont’s Motion to
Dismiss (Doc. 31) and Defendant Evans’s Motion to Dismiss (Doc. 32) are DENIED. The
Collective Motion to Dismiss (Doc. 33) is GRANTED as to Count I and DENIED as to all other
Counts. Count I is DISMISSED without prejudice. If Plaintiffs wish to amend their Complaint as
to Count I, they must do so by January 22, 2018. Orange County’s Motion for Extension of Time
to Answer the State Law Claim (Doc. 33) is GRANTED, and Orange County is hereby afforded
fourteen (14) days from the date of this Order to file its answer and affirmative defenses. The other
Defendants shall also answer the Amended Complaint within fourteen (14) days.
DONE and ORDERED in Chambers, Orlando, Florida on January 8, 2018.

Copies furnished to:
Counsel of Record
Unrepresented Party

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