Degraw v. Coats et al

Filing 39

ORDER granting 24 Motion for reconsideration and plaintiff is given leave to amend the complaint to add a claim for hedonic damages and to plead further facts. Plaintiff has ten days from this date to submit the amendedcomplaint and the parties shall have 25 days from this date to propose a new case management schedule if they think a new schedule is required. Signed by Judge Elizabeth A. Kovachevich on 6/7/2012. (SN)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

MICHAEL DEGRAW. individually and as
Personal Representative of the Estate of
JENNIFER DEGRAW. deceased.

CASE NO. : 8:11 - cv-720-EAK-MAP

Plaintiff,
v.

BOB GUALTIERI, in his official capacity as
Sheriff of PINELLAS COUNTY, FLORIDA
Defendant.

ORDER ON PLAINTIFF'S MOTION FOR RECONSIDERATION
BACKGROUND AND PROCEDURAL HISTORY

Plaintiff Michael Degraw brings this action as personal representative of the estate of the
deceased Jennifer Degraw. The defendant is the current Shcrriff of Pinellas County Bob
Gualtieri, as sued in his official capacity. Sherriff Gualtieri has been automatically substituted
for the previous defendant, Jim Coats. Fed. R. Civ. P. 25(d). Plaintiff brings both an action for
violation of civil rights under 42 U.S.C. § 1983, and an action under F.S. § 768.16-26, the
Florida Wrongful Death Act. The following facts are taken from the complaint.
On March 16 2009, the plaintiff reported to the police that his wife, Jennifer Degraw, was
bipolar, had discontinued taking her medication, and was a danger to herself and others. (Compl.
*i\\9.) When deputies attempted to detain Mrs. Degraw pursuant to Florida's Baker Act, she

resisted and was arrested for battery on a law enforcement officer, {hi ^21.) In jail, she refused
to take her medication or cooperate with medical staff, (Id 1125.)

On March 24, 2009, Mrs. Degraw died while in jail. (Id. «!28-29.) Plaintiff alleges that

the jail's staff knew of Mrs. Degraw's condition and failed to attempt to administer her

medication or perform checks as required. (Id. 1(27. 30.) Plaintiffalso alleges that the jail's staff
falsified documents stating that they had performed as required. Id.. Plaintiff further alleges that
Mrs. Degraw's death was proximately caused by the negligence ofjail employees. (Id. 1[31.)

On August 2, 2011. the plaintiff sought leave to amend his complaint. On August 15th
this court signed an order denying leave. On October 24, the plaintiff again sought leave to
amend his complaint. On November 8. 2011, this court signed another order denying leave. On
November 17, 2011, plaintiff asked the court to reconsider its second denial of leave to amend

the complaint. The plaintiffasks the court to specifically reconsider its decision not to allow the
addition of a claim for hedonic damages under the § 1983 action or the pleading of further facts
(Doc. 24, 2.)

STANDARD OF REVIEW

Parties can move to have the Court reconsider a judgment if the motion is brought within

28 days. Fed. R. Civ. P. 59(c). District Courts have considerable discretion in reconsideration;
the denial of a 59(e) motion is reversible only for abuse of discretion. Sussman v. Salem, Saxon
&Nielsen, P.A., 153 F.R.D. 689, 694 (M.D. Fla. 1994). However, reconsideration is an

extraordinary remedy to be used sparingly. Id. Reconsideration is appropriate when there is a

change in law, a change in material facts, or a need to correct a clear erroror manifest injustice.
Id. Parties seeking reconsideration must not merely relitigate that which the court previously
found lacking. Id.

DISCUSSION

Plaintiff requests that this Court either reconsider its denial of leave to amend or clarify
its reasoning for denying the motion. (Doc. 24, 2, 3). In Foman v. Davis, the Supreme Court

held that "...refusal to grant the leave [to amend] without any justifying reason appearing for the
denial..." is an abuse of discretion. Foman v. Davis, 371 US 178, 182 (1962).

The reason for the November 8, 2011 denial of leave to amend was that the amendment

would have been futile. Under Rule 15(a), leave to amend should be given "when justice so

requires". Denial of a motion to amend is appropriate if the amendment involves "undue delay,
bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by

amendments previously allowed, undue prejudice to the opposing party by virtue of allowanceof
the amendment, futility of amendment, etc." Foman 371 US at 182. A proposed amendment is
futile when the complaint, as amended, could not withstand a motion to dismiss. Coventry First,

LLC v. McCarty, 605 F. 3d 865, 870 (11'" Cir. 2010) citing Cockrell v. Sparks, 510 F.3d 1307,
1310 (1 l,h Cir. 2007). Aclaim does not withstand a motion to dismiss when it does not state a
plausible claim for relief. Ashcroft v. Iqbal 556 U.S. 662, 679 (2009). At the time, the Court
relied on cases that said the Middle District uses the Florida Wrongful Death Act (hereafter

FWDA) as the measure of 1983 damages, and the FWDA does not allow hedonic damages.

Torres v. Orange County, WL 3552726 (M.D. Fla. 2000). Thus, the amendment would not have
entitled the plaintiff to relief.
However, since Plaintiff filed the motion for reconsideration, there was an intervening

change in law. In April of 2012, a court in the Middle District hearing a § 1983 case involving a
death allowed a motion to amend the complaint to add hedonic damages. Estate o/Breedlove v.

Orange County Sherriffs Office, WL 1428902 (M.D. Fla. 2012). While that case did not cite
Torres, it is on all fours with the decision at hand. Based on Estate ofBreedlove, hedonic
damages could withstand a motion to dismiss.
While the court does not currently need to rule on whether it will ultimately allow
hedonic damages, it does not find at this time that an amendment seeking to add hedonic

damages would be futile. The Court has not prejudged the matter, but may consider the
following issues in deciding whether to allow hedonic damages.
When § 1983 is deficient in providing direction on some matter, courts turn to 42
U.S.C.A. § 1988 for direction:
The jurisdiction in civil and criminal matters conferred on the district courts
by the provisions of titles 13, 24, and 70 of the Revised Statutes 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 in the trial and disposition of the cause, and. if it is of a
criminal nature, in the infliction of punishment on the party found guilty.

In other words, when federal laws are deficient in providing a suitable remedy, courts
should seek a remedy in state laws, as long as those laws are not inconsistent with federal law.

Wilson v. Garcia 471 U.S. 261, 267 (1985). In this case, § 1983 is deficient in providing a
remedy, and Florida law provides a remedy through the Florida Wrongful Death Act. If the

Florida Wrongful Death Act is not inconsistent with federal law, it will be used. If it is

inconsistent, then "the common law...shall be extended to and govern... in the trial and
disposition of the case." 42 U.S.C.A. § 1988.

To determine whether the FWDA is consistent with federal law, this court should

examine both the text of § 1983 and the underlying purpose. Estate ofGilliam v. City of

Prattville 639 F.3d 2 1041, 1047 (11th Cir. 2011) citing Robertson v. Wegmann, 436 U.S. 584,
590-91 (1978). The purpose of § 1983 is "compensation of persons injured by deprivation of

federal rights and prevention of abuses of power by those acting under color of state law." Id. §
1983's deterrence function is satisfied when victims are compensated for their injuries, so the

focus of the analysis of § 1983's purpose should be compensation. Carey v. Piphus, 435 U.S.
247,256-57(1978).

The goal of damages for § 1983 claims is "compensate foractual injuries caused by the

particular constitutional deprivation." Gilmere v. City ofAtlanta, 664 F.2d 764, 739 (11" Cir.
1989). The Eleventh Circuit has ruled that § 1983 can recover for both injuries suffered by the
decedent and injuries suffered by relatives. Id. at 740; see also Estate ofGilliam 639 F.3d at
1047-48. It has not, however, ruled on whether the damages awarded by the Florida Wrongful
Death Act are inconsistent with the purpose of § 1983.

Such an award might underestimate the damages caused by a death by limiting the
recovery for the decedent's injuries to a loss of income. See Andrew Jay McClurg, It's A
Wonderful Life: The Casefor Hedonic Damages in Wrongful Death Cases, 66 Notre Dame L.
Rev. 57. 64 (1990). Also, given that Jennifer Degraw's personal representative brings no action

for his own civil rights violation, his right to recover is dependent on the decedent's suffering an

injury in the first place. Allowing a fuller compensation for the decedent's injury could make
sense.

On the other hand, whatever type of damages are awarded, the practical effect will be to

assuage Michael Degraw's injuries caused by the allegedly wrongful death. Thus, damages for
emotional suffering and loss of support from the decedent appear to be a more accurate measure
of the actual compensatory effect resulting from a successful claim. Furthermore, the suffering
and loss of the living may be more easily quantified than the value of a decedent's life, leading to
more accurate compensation. See Susan Gunty, A Critical Look at Hedonic Damages, 80 111. B.J.
308(1991).

Accordingly, it is so ORDERED that Plaintiffs motion for reconsideration is
GRANTED and plaintiff is given leave to amend the complaint to add a claim for hedonic
damages and to plead further facts. Plaintiff has ten days from this date to submit the amended
complaint and the parties shall have 25 days from this date to propose a new case management
schedule if they think a new schedule is required.

DONE and ORDERED in Chambers, in Tampa, Florida this /^fe ofJune, 2012.

S^ IZA B ETTT7tWG$VACJSEVICHF
UNITED STATES DISTRICTCtTURT-jTJDGE

Copies to: All parties and counsel of record.