Freyre v. Hillsborough County Sheriff's Office et al

Filing 66

ORDER granting 36 motion to dismiss; granting 37 motion to dismiss; granting in part and denying in part 44 motion to dismiss; granting 45 motion to dismiss; granting 46 motion to dismiss; granting 47 motion to dismiss. Signed by Judge James D. Whittemore on 5/13/2014. (KE)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
DORIS FREYRE,
Plaintiff,

vs.

Case No. 8:13-cv-02873-T-27TBM

IDLLSBOROUGH COUNTY
SHERIFF'S OFFICE et al.,
Defendants.
I

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ORDER
BEFORE THE COURT are motions to dismiss the Amended Complaint filed by
Defendants Julie Emerson (Dkt. 36), Alexa Argerious, Angeline Atilla, Jill Adams, and Tiffany
Short (Dkt. 37), Sheriff David Gee in his official capacity of Sheriff of Hillsborough County (Dkt.
44), Jessica Pietrzak (Dkt. 45), Iris C. Valdez-Corey (Dkt. 46), and the State of Florida (Dkt. 47). 1
Plaintiff responded in opposition to all ofthe motions (Dkts. 52, 54, 50, 53, 51 ). The State of Florida,
Emerson, Argerious, Atilla, Adams, and Short filed a joint Reply (Dkt. 64), as did Sheriff Gee,
Pietrzak, and Valdez-Corey (Dkt. 65).
Upon consideration, the motions to dismiss filed by Emerson, Argerious, Atilla, Adams,
Short, Pietrzak, Valdez-Corey, and the State of Florida (Dkts. 36, 37, 45, 46, 47) are GRANTED.
The motion to dismiss filed by Sheriff Gee (Dkt. 44) is GRANTED in part and DENIED in part.
Accordingly, Counts I through III of the Amended Complaint are dismissed without prejudice and
Plaintiff is granted leave to file a second amended complaint.

'Defendant Nextgen Alliance, Inc. did not respond to the Amended Complaint.

1

I.

INTRODUCTION

Plaintiff Doris Freyre is allegedly disabled due to a back injury and carpel tunnel syndrome,
leaving her unable to lift more than ten pounds (Dkt. 29 if 32). Freyre's daughter, M.A.F., was born
with severe developmental and physical disabilities and required assistance with all daily tasks (id.

if 34). M.A.F. remained in a wheelchair or in bed at all times and could not lift or reposition herself
without assistance (id.). Despite Freyre' s disability, she cared for M.A.F. as a single parent, receiving
additional support from Medicaid for home health services, home-bound schooling, and physical and
speech therapy (id.

if 37). Until March 29, 2011, Freyre received home health care assistance every

day from 7 :00 a.m. until midnight, but did not have home health care during the early morning hours
(id.

if 38).
On March 16, 2011, the Hillsborough County Sheriffs Office allegedly received a report that

Freyre was not adequately caring for M.A.F. and was reluctant to take her daughter to the hospital
when medical care was required (id.

if 39). As a result of the report, Defendant Jessica Pietrzak, a

Child Protective Investigator with HCSO, began an investigation into Freyre's care ofM.A.F. (id.

if 40). Pietrzak spoke with M.A.F.' s care coordination nurse, Julie Emerson, who was employed by
Children's Medical Services, a division of the Florida Department of Health (id.

ifif 22, 40). In their

March 21, 2011 conversation, Emerson allegedly told Pietrzak that Freyre "seems to be
overwhelmed" and informed Pietrzak of her concerns that Freyre was physically unable to care for
M.A.F. without additional home health care assistance (id.

if 40). Emerson also allegedly informed

Pietrzak that "there does not appear to be any indication that the family will get 24 hour care" and
that "no other family or back up care exists for the child" during the early morning hours (id.).
As a result of the call between Emerson and Pietrzak, state agencies allegedly convened a
"multi-disciplinary staffing" attended by Emerson and Pietrzak, as well as Maxim Clinical

2

Supervisor Erin Thompson, Child Protection Specialist Laura Dill, "CMS FHP" Joanne White,
Sheriffs Office Child Protective Investigations General Manager Heather Grates, and Alexis
Argerious, the Assistant Attorney General for Children's Legal Services (id.~ 41). After receiving
input from the others in attendance, Argerious decided to file a petition to shelter M.A.F. at Tampa
General Hospital until a medical foster home could be secured (id.

~ 42).

The petition was filed on

March 30, 2011, in the Circuit Court of the Thirteenth Judicial Circuit, in and for Hillsborough
County, Florida (id.).
At the hearing on the petition to shelter, Freyre denied that she had abused M.A.F. and argued
that she missed medical appointments "because she did not want to take M.A.F. out and expose her
to germs or inclement weather," and because "she was a better judge of M.A.F.' s medical condition
and medical needs" than others (id. ~ 44). After argument, the Circuit Court granted the petition to
shelter, but also decided that Freyre was entitled to unlimited visitation with M.A.F ., and that M.A.F.
was to be returned home as soon as Freyre procured home health care from midnight to 7:00 a.m.
(id.~

45).
Following the hearing, Hillsborough Kids, Inc. 3 Resource Specialist Kris Karstens4 tried to

procure additional home health care for M.A.F. during the early morning hours (id.

~

47). After

initial progress, Freyre alleges that Emerson telephoned Karstens and advised him to stop all
attempts to obtain nursing care for M.A.F. (id.~ 52). Specifically, Freyre alleges that Emerson falsely
informed Karstens that Medicaid has not and would not authorize 24-hour care for M.A.F. (id.

~~

To "shelter" a child means "placement with a relative or a nonrelative, or in a licensed home or facility, for
the temporary care of a child who is alleged to be or who has been found to be dependent, pending court disposition
before or after adjudication."§ 39.01(68), Fla. Stat. (2013).
2

Kids, Inc. changed its name to Nextgen Alliance, Inc. on July 26, 2013 (Dkt. 29 ~ 17), and is
named as a Defendant under the latter name.
3Hillsborough

4Karstens is alternatively spelled with a "C" and a "K" in the Amended Complaint. For consistency, the initial
spelling-with a "K"-is used.

3

52, 53). Accordingly, Emerson believed it to be inappropriate for Hillsborough Kids to attempt to
obtain temporary 24-hour care until Medicaid could approve it, because Freyre would not be able
to care for M.A.F. after the stopgap coverage concluded (id. , 52).
Allegedly due to Emerson's assertions regarding the unavailability of 24-hour care, the
agencies and child protective services involved in M.A.F.'s care and investigation concluded that
24-hour care for M.A.F. would not be available and ceased attempts to obtain the care required
between midnight and 7:00 a.m. As a result, HCSO employees and other state agencies allegedly
agreed that M.A.F. would not be reunited with Freyre, and they began the process of finding
institutionalized care for M.A.F. (id ,, 55, 56).
The Attorney General, through attorney Angeline Attila, then filed a dependency petitions
based on Freyre's disability and inability to care for M.A.F. (id, 57). At an April 14, 2011 status
hearing on the petition, Attila allegedly made a series of misrepresentations to the Circuit Court
regarding Freyre's disability, M.A.F.'s condition, the court's comments from the March 30 hearing
on the shelter petition, and the availability of24-hour Medicaid assistance for M.A.F. (id. ,, 57, 58).
Attila concluded the hearing by informing the court that Hillsborough County could not ensure the
safety and well-being ofM.A.F. as long as she remained at home with Freyre (id , 57). The Circuit
Court ultimately determined that the previously entered shelter order could not be dissolved without
an evidentiary hearing, which was set for the week of June 20, 2011

(id.~

59).

Meanwhile, Hillsborough Kids began working with staffat Tampa General Hospital to locate
a geriatric nursing facility that would accept M.A.F. permanently (id~~ 60-62). The only nursing
facility that could provide the appropriate level of care was in Miami-Dade County, and the spot
available for M.A.F. would be taken by another patient if not secured quickly (id~~ 62, 63). Due

5See

§ 39.401, Fla. Stat. (2013).

4

to the short timeline, Jill Adams, a supervising attorney with the Florida Attorney General's Office,
contacted another attorney in the Attorney General's Office, Tiffany Short, and advised Short that
there were no legal impediments to moving M.A.F. to Miami-Dade County and that Short should
begin making arrangements (id
move M.A.F. (id

if 64). Freyre alleges that she consistently objected to any plans to

ilil 65, 72).

As the state officers prepared to move M.A.F. to Miami-Dade County, Freyre asked to
accompany M.A.F. on the trip, but her request was denied (id.

if 73). The officers in charge of

M.A.F.'s transport to Miami-Dade County allegedly failed to provide M.A.F. necessary care and
medication during the trip (id.

ifil 74-76). M.A.F. became "hysterical" and dehydrated, and she died

soon after arriving at the nursing facility in Miami-Dade County (id.

if 75).

Freyre brings five claims against Defendants. It is important to note that all of the claims are
brought on Freyre's behalf-no claims are brought on behalf ofM.A.F. Count I is a violation of Title
II of the Americans with Disabilities Act, 42 U.S.C. § 12132, alleging that Nextgen Alliance,
HCS0,6 and the State of Florida discriminated against Freyre by "denying [Freyre] medically
necessary services," resulting in M.A.F.' s unnecessary institutionalization and death (Dkt. 29 ilil 79,
83). Freyre further alleges that Nextgen Alliance, Sheriff Gee, and the State of Florida discriminated
against her by segregating M.A.F. and denying Freyre and M.A.F. access to existing community
programs (id.

if 85). Count II is a violation of Section 504 of the Rehabilitation Act, 29 U.S.C. §

794(a), also brought against Nextgen Alliance, Sheriff Gee, and the State of Florida. The allegations
supporting Count II are virtually identical to those supporting Count I.
Count III is a claim for conspiracy to deny civil rights brought under 42 U.S.C. § 1985(3)

6Freyre named SheriffDavid Gee as a Defendant in this matter, in his official capacity as SheriffofHillsborough
County. The Amended Complaint refers to Sheriff Gee and HCSO interchangeably. For consistency purposes, the
remainder of this Order will refer to Sheriff Gee as the Defendant.

5

against Valdez-Corey, Pietrzak, Emerson, Agerious, Attila, Adams, and Short. 7 Freyre alleges that
these Defendants conspired to deprive her of her constitutional rights to raise M.A.F. as she saw fit
and to be reunited with M.A.F. Counts IV and V assert violations of 42 U.S.C. § 1983 against
Nextgen Alliance and Sheriff Gee, respectively. Freyre alleges that Nextgen Alliance and Sheriff Gee
deprived her of her constitutional rights as a parent by removing M.A.F. to a distant facility and
preventing their reunification.
II.

STANDARD

A complaint should contain "a short and plain statement of the claim showing that the
pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). This Rule does not require detailed factual
allegations, but it demands more than an unadorned, conclusory accusation of harm. Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009). The complaint must "plead all facts establishing an entitlement to
reliefwith more than 'labels and conclusions' or a 'formulaic recitation of the elements of a cause
of action."' Resnick v. AvMed, Inc., 693 F .3d 1317, 1324 (11th Cir. 2012) (quoting Bell Atl. Corp.

v. Twombly, 550 U.S. 544, 555 (2007)).
"[O]nly a complaint that states a plausible claim for relief survives a motion to dismiss."

Iqbal, 556 U.S. at 679 (citing Twombly, 550 U.S. at 556). "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." Id. at 678 (citing Twombly, 550 U.S. at 556). This
plausibility standard "asks for more than a sheer possibility that a defendant has acted unlawfully."

Id. (citing Twombly, 550 U.S. at 556). "Determining whether a complaint states a plausible claim
for relief will ... be a context-specific task that requires the reviewing court to draw on its judicial
experience and common sense." Id at 679 (citing Iqbal v. Hasty, 490 F.3d 143, 157 (2d Cir. 2007),

The claims against Creshanda Riley were voluntarily dismissed by Freyre (Dkt. 56).

7

6

rev 'd sub nom. Ashcroft v. Iqbal, 556 U.S. 672 (2009)). Where the well-pleaded facts do not permit

the court to infer more than the mere possibility of misconduct, the complaint has not shown that the
pleader is entitled to relief. Id
All of the factual allegations contained in the complaint must be accepted as true for the
purposes of a motion to dismiss, but this tenet is "inapplicable to legal conclusions." Id. at 678.
"While legal conclusions can provide the framework of a complaint, they must be supported by
factual allegations." Id at 679. All reasonable inferences must be drawn in the plaintiffs favor. St.
George v. Pinellas Cnty., 285 F.3d 1334, 1337 (11th Cir. 2002).

III.

DISCUSSION

A.

Counts I & II: Title II of the ADA and Section 504 of the Rehabilitation Act.

Counts I and II assert claims under Title II of the Americans with Disabilities Act, 42 U.S.C.

§ 12132, and Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, against Nextgen
Alliance, Sheriff Gee, and the State of Florida. Sheriff Gee and the State of Florida argue that both
counts must be dismissed for failure to state a claim. Sheriff Gee also argues that Freyre has
improperly lumped the claims against the three Defendants together, making it difficult to discern
the allegations supporting the claim against each Defendant. The State of Florida argues that Freyre
does not have standing to bring Counts I and II.
Counts I and II reference the three Defendants collectively (see Dkt. 29 iii! 83, 85, 92, 94).
This method of pleading renders it virtually impossible to determine whether Freyre has standing to
pursue her claims against each Defendant, or whether she has plausibly stated a claim against each
Defendant. For example, a claim under the ADA requires the plaintiff to allege, among other
elements, that she was "excluded from participation in or denied the benefits of a public entity's
services, programs, or activities, or was otherwise discriminated against by the public entity." Am.

7

Ass'n ofPeople with Disabilities v. Harris, 647 F.3d 1093, 1101 (11th Cir. 2011); Mack v. City of
High Springs, 486 Fed. Appx. 3, 7 (11th Cir. 2012). The method by which each Defendant
"excluded" Freyre from services or "otherwise discriminated" against her is not readily discemable
from the allegations in Count I.
It is likewise difficult to assess the allegations in a manner allowing a proper analysis of

whether the Freyre's alleged injury is "fairly traceable" to the conduct of each Defendant for the
purposes of determining standing. 8 See Friends ofthe Earth, 528 U.S. at 180-81; Lujan, 504 U.S.
at 560 (the "fairly traceable" element requires a "causal connection" through which the injury "has
to be fairly traceable to the challenged action of the defendant, and not the result of the independent
action of some third party"). Cf Doe v. Pryor, 344 F.3d 1282, 1285 (11th Cir. 2003) (finding no
standing where a defendant "played no role" in the challenged action).
The allegations in Counts I and II fail to distinguish between the three named Defendants.
These claims are therefore due to be dismissed without prejudice, with leave tofile a second amended
complaint, in which Freyre shall identify the allegations underlying the claims against each
Defendant. See Fed. Deposit Ins. Corp. v. Briscoe, No. 1:11-cv-02303-SCJ, 2012 WL 8302215, at
*8 (N.D. Ga. Aug. 14, 2012) (reviewing cases within the Eleventh Circuit where courts have
dismissed claims without prejudice and allowed repleader where defendants were improperly lumped
together as a single entity).

B.

Count III: 42 U.S.C. § 1985(3).

Count III of the Amended Complaint is brought under 42 U.S.C. § 1985(3) and alleges that

8To

demonstrate standing, Freyre must show (1) that she has suffered an injury-in-fact that is concrete and
particularized, and not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the
defendant; and (3) a favorable judgment is likely to redress the injury. Friends ofthe Earth, Inc. v. Laidlaw Envtl. Servs.,
Inc., 528 U.S. 167, 180-81 (2000)(citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)). She bears the
burden of establishing each of these elements, Lujan, 504 U.S. at 461, and standing must be established for each claim
she raises. Harrell v. The Fla. Bar, 608 F.3d 1241, 1253-54.

8

Valdez-Corey, Pietrzak, Emerson, Argerious, Attila, Adams, and Short engaged in an unlawful
conspiracy to deny Freyre her civil rights under the Fourteenth Amendment and "applicable federal
laws, including without limitation, the Adoptions and Safe Families Act" (Dkt. 29 ii 97).

In pertinent part, 42 U.S.C. § 1985(3) provides:
If two or more persons in any State or Territory conspire ... for the
purpose of depriving, either directly or indirectly, any person or class of
persons of the equal protection of the laws, or of equal privileges and
immunities under the laws; or for the purpose of preventing or hindering
the constituted authorities of any State or Territory from giving or securing
to all persons within such State or Territory the equal protection of the
laws; ... in any case of conspiracy set forth in this section, if one or more
persons engaged therein do, or cause to be done, any act in furtherance of
the object of such conspiracy, whereby another is injured in his person or
property, or deprived of having and exercising any right or privilege of a
citizen of the United States, the party so injured or deprived may have an
action for the recovery of damages occasioned by such injury or
deprivation, against any one or more of the conspirators.

42 U.S.C. § 1985(3). The elements of a§ 1985(3) claim are "(1) a conspiracy; (2) for the purpose
of depriving, either directly or indirectly, any person or class of persons of the equal protection of
the laws, or of equal privileges and immunities under the laws; and (3) an act in furtherance of the
conspiracy; (4) whereby a person is either injured in his person or property or deprived of any right
or privilege of a citizen of the United States." Lucero v. Operation Rescue ofBirmingham, 954 F.2d
624, 627-28 (11th Cir. 1992) (quoting United Brotherhood ofCarpenters & Joiners ofAm., Local

610 v. Scott, 463 U.S. 825, 828-29 (1983)).9
The second element of a § 1985(3) claim requires the plaintiff to allege "some racial, or
perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators' action."

Local 610, 463 U.S. at 829; Griffin, 403 U.S. at 102; see Burrellv. Bd. ofTrs. ofGa. Military Coll.,
See also Griffin v. Breckenridge, 403 U.S. 88, 102-03 (1971) ("To come within the legislation a complaint must
allege that the defendants did (1) conspire ... (2) for the purpose of depriving, either directly or indirectly, any person
or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws. It must then
assert that one or more of the conspirators (3) did, or caused to be done, any act in furtherance of the object of the
conspiracy, whereby another was (4a) injured in his person or property or (4b) deprived of having an exercising any right
or privilege of a citizen of the United States.") (internal quotations and alterations omitted).
9

9

970 F.2d 785, 793 (11th Cir. 1992) (plaintiff must show "a class-based invidiously discriminatory
purpose behind the defendants' action."). "This narrow intent requirement erects a significant hurdle
for section 1985(3) plaintiffs," 970 F.2d at 794, as§ 1985(3) does "not provide a federal remedy for
'all tortious, conspiratorial interferences with the rights of others."' Local 610, 463 U.S. at 834
(quoting Griffin, 403 U.S. at 101).
Defendants argue that Count III must be dismissed because the Amended Complaint fails to
state a plausible cause of action under § 1985(3). A careful review of the Amended Complaint
reveals that Defendants are correct that Freyre's allegations fail to plausibly allege a conspiracy
inspired by an invidiously discriminatory animus.

1.

The Amended Complaint Fails to Allege a Conspiracy.

Defendants first argue that the Amended Complaint contains only broad allegations of
conspiracy among Defendants, but no specific facts indicating Defendants agreed to act, or were
acting, to deprive Freyre of her constitutional rights. Freyre responds that the Amended Complaint
contains allegations of discussions among Defendants concerning the alleged conspiracy, which are
sufficient to allege a conspiracy.
To sufficiently allege a conspiracy, a plaintiff must allege, among other things, that the
defendants reached an understanding or agreement. A/bra v. City ofFt. Lauderdale, 232 Fed. Appx.
885, 890 (11th Cir. 2007); Rowe v. City of Ft. Lauderdale, 279 F.3d 1271, 1283 (I Ith Cir. 2002).
The plaintiff is not required to produce "a smoking gun" establishing mutual understanding or willful
participation among the conspirators, but the allegations must contain some evidence of an
agreement among the defendants. Rowe, 279 F.3d at 1283-84. The complaint must also contain
"particularized allegations" supporting the existence of such an agreement. A/bra, 232 Fed. Appx.
at 891 (citing GJR Investments, Inc. v. Cnty. of Escambia, Fla., 132 F.3d 1359, 1370 (11th Cir.

10

1998); Fullman v. Graddick, 739 F.2d 553, 556-57 (1 lth Cir. 1984)).
Freyre alleges that Defendants "entered into a conspiracy" (Dkt. 29 if 106), but she does not
support that conclusory legal statement by referencing other factual allegations establishing an
agreement among Defendants. Nor does Freyre point to any specific allegations of conspiracy in her
responses to Defendants' motions to dismiss. Instead, she argues that there were "discussions
regarding the conspiracy" (Dkt. 54 at 5), without identifying any specific discussions. The general
allegations reveal only one "discussion" that could form the basis for a conspiracy claim.
After Emerson notified Pietrzak that Freyre "seems to be overwhelmed" by M.A.F.' s care
(Dkt. 29 if 40), a "multi-disciplinary staffing" was convened and attended by Defendants Emerson,
Pietrzak, and Argerious, as well as other individuals not named as Defendants: Erin Thompson,
Laura Dill, Joanne White, and Heather Grates (id.

if 41).

During the "staffing," the individuals

present allegedly discussed Freyre' s disabilities and expressed concerns about Freyre' s ability to care
for M.A.F. in light of those disabilities. Based on that information, Argerious allegedly made the
decision to petition the Circuit Court to shelter M.A.F. at Tampa General Hospital until a medical
foster home could be secured.
These allegations simply do not establish that Emerson, Pietrzak, and Argerious reached an
"agreement" or an "understanding" rising to the level of a conspiracy. A/bra, 232 Fed. Appx. at 890;
Rowe, 279 F .3d at 1283. A decision reached by Argerious based on the information presented to her
by other individuals does not plausibly constitute a conspiracy. See Marx v. Gumb inner, 716 F. Supp.
1434, 1440 (S.D. Fla. 1989) ("Where a plaintiffs allegations that a conspiracy existed are supported
only by the fact that a certain decision was reached ... , the allegations cannot stand.").
Moreover, other Defendants sued under§ 1985(3) were not present at the staffing. ValdezCorey is not mentiqned in the Amended Complaint outside of the introductory allegations (see Dkt.

11

29 ~~ 10, 11, 12, 27) and the conclusory allegations of Count III (see

id.~

99, 107-112). And there

are no allegations that Valdez-Corey was involved in any discussions with the other Defendants, let
alone joined in an understanding or agreement. Nor does Freyre allege that Attila, Adams, or Short
were involved in any discussions with any of the other Defendants. Indeed, the only alleged
discussions between Attila, Adams, and Short concern their responsibilities as attorneys with the
Office of the Florida Attorney General (see Dkt. 29 ~~ 63-64). As alleged, these discussions do not
rise to the level of an "agreement" or "understanding." Even if Attila, Adams, and Short reached a
consensus and conspired to deprive Freyre of her constitutional rights, they would be protected by
the intracorporate conspiracy doctrine.
"The intracorporate conspiracy doctrine holds that acts of corporate agents are attributed to
the corporation itself, thereby negating the multiplicity of actors necessary for the formation of a
conspiracy. Simply put, under the doctrine, a corporation cannot conspire with its employees, and
its employees, when acting in the scope of their employment, cannot conspire among themselves."

McAndrew v. Lockheed Martin Corp., 206F.3d1031, 1036 (11th Cir. 2000) (en bane). The doctrine
applies to public entities such as a municipality and its personnel. See Denney v. City ofAlbany, 247
F.3d 1172, 1190-91 (11th Cir. 2001) (applying intracorporate conspiracy doctrine to bar§ 1985(3)
claim against two city employees); Dickerson v. Alachua Cnty. Comm 'n, 200 F.3d 761, 768 (11th
Cir. 2000) (rejecting employee's§ 1985(3) claim where employee alleged civil conspiracy among
county employees); Chambliss v. Foote, 562 F.2d 1015 (5th Cir. 1977) (applying intracorporate
conspiracy doctrine to shield public university from § 1985(3) liability). As the intracorporate
conspiracy doctrine bars§ 1985(3) claims against multiple employees of the same city (Denney),
county (Dickerson), and public university (Chambliss), it logically follows that the doctrine likewise
applies to Attila, Adams, and Short as employees of the same department within the Office of the

12

Attorney General.
In sum, the Amended Complaint contains no plausible allegations of a conspiracy among the
individual Defendants sufficient to sustain a § 1985(3) action.

2.

The Amended Complaint Fails to Allege Class-Based Invidious
Discrimination.

Even ifFreyre has sufficiently alleged a conspiracy among Defendants, her§ 1985(3) claim
falters on the "significant hurdle," Burrell, 970 F.2d at 794, of alleging a class-based, "invidiously
discriminatory animus behind the conspirators' action." Local 610, 463 U.S. at 829.
In Bray v. Alexandria Women's Health Clinic, 506 U.S. 263, 269 (1993), the Supreme Court
held that a claim brought under § 1985(3) must focus upon the allegedly suspect class by reason of

the plaintiff's inclusion in that class. Id. at 270. The Bray plaintiffs alleged a§ 1985(3) claim against
antiabortion organizations and its members for obstructing entrances to abortion clinics. The
plaintiffs sought to base their claim on class-based discriminatory animus against women, but the
Supreme Court rejected that theory. The antiabortion defendants, the Court reasoned, were not
motivated by animus against women as a class, but only against abortion supporters and those
seeking abortions. See id at 270 (The record did "not indicate that petitioners' demonstrations are
motivated by a purpose ... directed specifically at women as a class."). Id. at 270. That discrete
group was not a suspect class and the § 1985(3) claim therefore could not be maintained.
Freyre's claim suffers from the same shortcoming as the one in Bray. Freyre does not allege
that Defendants foster an animus toward physically handicapped individuals as a class, but rather
against physically handicapped individuals who are unable to care for their children. The Amended
Complaint bears out this shortcoming. Describing what is alleged to be a "pervasive, systemic
problem" in Florida, Freyre alleges that the practices of the State of Florida and Hillsborough County
have led to the removal of children "because ofthe parent's physical, learning, or emotional inability
13

to care for their children without assistance" (Dkt. 29

~

76) (emphasis added). Likewise, Freyre

alleges in Count III that Defendants "enforced a policy and practice of denying persons with
[d]isabilities to have [sic] custody of their child when they are physically unable to care for their
children without available aid[] and support" (Dkt. 29 ~ 108). Neither of these allegations support
the theory that Defendants held a class-based animus toward physically handicapped individuals by

the sole reason of their membership in that allegedly suspect class. 10 See also Personnel
Administrator ofMass. v. Feeney, 442 U.S. 256, 279 (1979) ("Discriminatory purpose implies more
than intent as volition or intent as awareness of consequences. It implies that the decisionmaker ..
. selected or reaffirmed a particular course of action at least in part 'because of,' not merely 'in spite
of,' its adverse effects upon an identifiable group."). 11 The claim is therefore due to be dismissed. 12
Having failed to sufficiently allege a conspiracy among Defendants or any class-based
invidious discrimination, Count III must be dismissed. Given the substantial hurdle ofpleading some
class-based, "invidiously discriminatory animus behind the conspirators' action," Local 610, 463
U.S. at 829, and the nature of Defendants' conduct, it appears unlikely that Freyre will be able to
state a§ 1985(3) claim on any set of given facts. See Spanish Broadcasting Sys. ofFla., Inc. v. Clear

Channel Commc'ns, Inc., 376 F.3d 1065, 1070 (11th Cir. 2004) ("The complaint should only be
dismissed with prejudice if it appears beyond doubt that [the plaintiff] can prove no set of facts
which would entitle it to relief."). Nonetheless, in an abundance of caution, Freyre will be granted
10Just as the Court in Bray did not decide the ultimate issue of whether a gender-based discriminatory animus
could support a§ 1985(3) claim, the question of whether the class of physically handicapped individuals is sufficiently
suspect to support a § 1985(3) claim likewise need not be reached.
11 Although Freyre alleges that Defendants conspired to deny Freyre her rights as a parent "solely because of
her own disability" (Dkt. 29, l 06), this is a conclusory legal statement, which cannot sustain a § 1985(3) claim on its
own.

Defendants alternatively argue that they are entitled to Eleventh Amendment and qualified immunity. The
constitutional question of Eleventh Amendment immunity need not be reached because Count III fails to state a claim
to which Eleventh Amendment immunity would attach. Qualified immunity, on the other hand, cannot be claimed by
public officials such as Defendants to avoid liability under§ 1985(3). Burrell, 870 F.2d at 793.
12

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leave to amend Count III.

C.

Count V: 42 U.S.C. § 1983 Against Sheriff Gee.

Count V is a claim brought under 42 U.S.C. § 1983 against Sheriff Gee in his capacity as
Sheriff of Hillsborough County. This is functionally a claim against the Hillsborough County
Sheriffs Office. See Kentuckyv. Graham, 473 U.S. 159, 166 (1985); Cook ex rel. Estate a/Tessier

v. SheriffofMonroe Cnty., Fla., 402 F.3d 1092, 1115 (11th Cir. 2005). Governmental entities may
be liable for constitutional violations resulting from the execution of a policy or custom of the
governmental entity. See Monell v. Dep 't ofSocial Servs. ofCity ofNY., 436 U.S. 658, 694 (1978).
The policy or custom must be the "moving force" behind the constitutional deprivation. Id And the
plaintiff must "identify a municipal 'policy' or 'custom' that caused [her] injury." Gold v. City of

Miami, 151F.3d1346, 1350 (11th Cir. 1998).
Sheriff Gee first argues that Count V must be dismissed under Holbrook v. City of

Alpharetta, Georgia, 112 F .3d 1522 (11th Cir. 1997), because it is duplicative of Counts I and II. In
Holbrook, the court held that "a plaintiff may not maintain a section 1983 action in lieu of-or in
addition to-a Rehabilitation Act or ADA cause of action if the only alleged deprivation is of the
employee's rights created by the Rehabilitation Act and the ADA." Id. at 1531. Freyre's ADA and
Rehabilitation Act claims, however, allege injuries distinct from those in her § 1983 action. In
Counts I and II, Freyre alleges that she was discriminated against due to her disability and that public
services were not provided to her in an equal manner. Count V, on the other hand, alleges that her
fundamental substantive due process right to the custody ofM.A.F. was violated due to Sheriff Gee's
policy of denying persons with disabilities custody of their children. See Dkt. 29 1[ 139; Doe v.

Kearney, 329 F.3d 1286, 1292 (11th Cir. 2003) ("Parents have a fundamental right to the custody
of their children, and the deprivation of that right effects a cognizable injury."). Sheriff Gee's

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argument under Holbrook is therefore unpersuasive.
Sheriff Gee next argues that Count V must be dismissed because Freyre alleges aclaim under

respondeat superior or vicarious liability, neither of which are cognizable for§ 1983 claims. Sheriff
Gee is correct that a § 1983 claim may not be brought on the basis of respondeat superior or
vicarious liability, but Freyre's claim is not based on supervisor liability. See Cottone v. Jenne, 326
F.3d 1352, 1360 (11th Cir. 2003). Rather, she contends in Count V that Sheriff Gee's policy caused
her injury, not the actions of his subordinates. Based on that allegation, Count V need not be
dismissed on the basis of supervisory liability.
Finally, Sheriff Gee argues that he is entitled to Eleventh Amendment immunity. The
Eleventh Amendment bars suits brought in federal court against an "arm of the State." Manders v.

Lee, 338 F .3d 1304, 1308 (11th Cir. 2003)(en bane)(citing Mt. Healthy City Sch. Dist. Bd. ofEduc.
v. Doyle, 429 U.S. 274, 280 (1977)). Whether a defendant is an "arm of the State" is assessed "in
light of the particular function in which the defendant was engaged when taking the actions out of
which liability is asserted to arise." Id. Four factors are used to determine whether an entity is an

"arm ofthe State" in carrying out a particular function: "(1) how state law defines the entity; (2) what
degree of control the State maintains over the entity; (3) where the entity derives its funds; and (4)
who is responsible for judgments against the entity." Id. at 1309. 13 The fourth factor is critical and
must be established before Eleventh Amendment immunity may be granted. See Edelman v. Jordan,
415 U.S. 651, 663 (1974) ("Thus the rule has evolved that a suit by private parties seeking to impose
liability which must be paid from public funds in the state treasury is barred by the Eleventh
Amendment."); Carr v. City of Florence, Ala., 916 F.2d 1521, 1526 (1 lth Cir. 1990) ("In

13 Citing Miccosukee Tribe ofIndians ofFla. v. Fla. State Athletic Comm., 226 F.3d 1226, 1231-34 (11th Cir.
2000); Shands Teaching Hosp. & Clinics, Inc. v. Beech Street Corp., 208 F.3d 1308, 1311 (I Ith Cir. 2000); Tuveson
v. Fla. Governor's Council ofIndian Affairs, Inc., 734 F.2d 730, 732 (11th Cir. 1984).

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determining whether a public officer is a state official within the protection of eleventh amendment
immunity, the courts must inquire whether an award of damages would be paid with state funds.")
(emphasis added).
Sheriff Gee points to various provisions within the Florida Statutes, arguing that they
establish the first, second, and third factors and favor a finding that he is an "arm of the State." For
the fourth factor, however, Sheriff Gee "submits" in his motion that ''the only source of funds
available to Defendant to pay any adverse judgments regarding child protective investigations is the
grant received from" the Florida Department of Children and Families (Dkt. 44 at 21 ). This fact may
not be considered because it is outside the four comers of the Amended Complaint, 14 and in any
event, argument of counsel in pleadings is not evidence. See United States v. Smith, 918 F .2d 1551,
1562 (11th Cir. 1990) ("[S]tatements and arguments of counsel are not evidence."). Sheriff Gee
therefore cannot establish that he is an "arm of the State" on the limited record currently available,
and his motion to dismiss on Eleventh Amendment immunity grounds is due to be denied. See

Misener Marine Constr., Inc. v. Ga. Ports Auth., 199 Fed. Appx. 899, 900 (11th Cir. 2006)
(affirming denial of Eleventh Amendment immunity on motion to dismiss due to limited evidentiary
record, but allowing defendant to reassert defense on motion for summary judgment); Brown v. E.

Central Health Dist., 752 F .2d 615, 617 (11th Cir. 1985) ("Brown and Young contend that the record
does not establish an adequate factual basis to determine that East Central is a state sub-agency. We

0n a Rule 12(b)(6) motion to dismiss, the scope of the district court's review is generally limited to the four
comers of the complaint. Speaker v. U.S. Dep 't ofHealth & Human Servs., Ctrs.for Disease Control & Prevention, 623
F.3d 1371, 1379 (11th Cir. 2010). There are, however, exceptions to this rule. A district court may consider an extrinsic
document on a motion to dismiss if"it is (I) central to the plaintiff's claim, and (2) its authenticity is not challenged."
SFM Holdings, Ltd. v. Banc ofAm. Secs., LLC, 600 F.3d 1334, 1337 (11th Cir. 2010). Courts may also consider matters
that are judicially noticeable or of public record in 12(b)(6) motions to dismiss without converting them to motions for
summary judgment. Tellabs, Inc. v. Makor Issues & Rights, Ltd, 551U.S.308, 322 (2007) ("[C]ourts must consider the
complaint in its entirety, as well as other sources courts ordinarily examine when ruling on Rule 12(b)(6) motions to
dismiss, in particular, documents incorporated into the complaint by reference, and matters of which a court may take
judicial notice."). Sheriff Gee's argument that any award would be paid out of state funds does not fit into any of these
exceptions.
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agree .... The record does not show that the judgment sought here would expend itself on the state
treasury ...."). See generally In re State of New York, 256 U.S. 490, 500 (1921) (holding that a
determination under the Eleventh Amendment requires "that the question is to be determined not by
the mere names of the titular parties but by the essential nature and effect of the proceeding, as it
appears from the entire record"). This denial is without prejudice, however, and Sheriff Gee is
entitled to reassert the defense on a more complete record.
Accordingly,
1) The motions to dismiss filed by motions to dismiss filed by Emerson, Argerious, Attila,

Adams, Short, Pietrzak, Valdez-Corey, and the State of Florida (Dkts. 36, 37, 45, 46, 47) are

GRANTED.
2) The motion to dismiss filed by Sheriff Gee (Dkt. 44) is GRANTED in part and DENIED

in part.
3) Counts I, II, and III of the Amended Complaint are DISMISSED without prejudice.
4) Plaintiff is GRANTED leave to file a second amended complaint within fourteen (14)

days of the date of this Order.
DONE AND ORDERED this

il ?:!

day of May, 2014.

ES D. WHITTEMORE
:dStat:District Judge
Copies to: Counsel of Record

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