Holder v. Gualtieri

Filing 14

ORDER: Defendant Bob Gualtieri, individually and in his official capacity as Sheriff of Pinellas County, Florida's Motion to Dismiss Plaintiffs' Complaint 6 is GRANTED. Plaintiffs have until and including February 13, 2015, to file their amended complaint in accordance with this Order. Signed by Judge Virginia M. Hernandez Covington on 1/27/2015. (KNC)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
COREY D. HOLDER, as Personal
Representative of the Estate
of Elizabeth Holder, a
deceased minor child, and on
behalf of Corey Holder,
individually, and Stephanie Ann
Judah, individually, as survivors,
Plaintiffs,
v.

Case No. 8:14-cv-3052-T-33TGW

BOB GUALTIERI, in his official
and individual capacity as
Sheriff of Pinellas County,
Florida,
Defendant.
________________________________/
ORDER
This matter comes before the Court pursuant to Defendant
Bob Gualtieri (“Gualtieri”), individually and in his official
capacity as Sheriff of Pinellas County, Florida’s Motion to
Dismiss Plaintiffs’ Complaint (Doc. # 6), filed on January 6,
2015. Plaintiff, Corey D. Holder, as Personal Representative
of the Estate of Elizabeth Holder, a deceased minor child,
and on behalf of her parents and survivors, Corey D. Holder
and

Stephanie

Ann

Judah

(collectively

referred

to

as

“Plaintiffs”) filed a memorandum in opposition to Gualtieri’s
Motion on January 14, 2015. (Doc. # 10). With leave of Court,

Gualtieri filed a reply to Plaintiffs’ memorandum on January
23,

2015.

Gualtieri’s

(Doc.

#

Motion

13).
is

For

the

granted.

reasons

However,

stated
this

below,

action

is

dismissed without prejudice so that Plaintiffs may file an
amended complaint in accordance with this Order.
I.

Background
On

January

11,

2013,

the

Pinellas

County

Sheriff

involuntarily removed five-year-old Elizabeth Holder from the
home of her parents, Corey D. Holder and Stephanie Ann Judah,
based upon an allegation that Elizabeth was not properly
supervised. (Doc. # 1 at ¶ 10). At all relevant times,
Gualtieri was the Sheriff of Pinellas County, Florida. (Id.
at ¶ 8).
According to the Complaint, “[o]nce Elizabeth was taken
into custody by the Sheriff, the Sheriff had a ‘special
relationship’ and duty of care for the child’s wellbeing.”
(Id. at ¶ 11). In addition, Plaintiffs suggest that “the
Sheriff also had a duty imposed by the Florida Administrative
Code to submit the child to a medical assessment by a licensed
healthcare professional within 72 hours of being taken into
the Sheriff’s custody,” pursuant to:

2

65C-29.008 Initial Health Care Assessment and
Medical Examination of Children Alleged to Be
Abused, Neglected, or Abandoned.
(1) An initial health care assessment by a licensed
health care professional will be completed for
every child entering emergency shelter care within
seventy-two hours of removal.
(Id. at ¶ 12)(emphasis in original).
According to the Complaint, Gualtieri was aware of the
Florida

State

Regulations,

specifically

Florida

Administrative Code 65C-29.008 and its application to him,
but, Gualtieri “willfully, recklessly, and with wanton and
deliberate disregard for the law and for the health and safety
of the child did not submit Elizabeth to a medical assessment
within the required 72-hour period or at any time prior to
her death.” (Id. at ¶ 13).
Elizabeth was in Gualtieri’s custody for eight days
prior to her death, which was caused by “oxygen deprivation
from a swollen throat” due to tonsillitis. (Id. at ¶ 19).
Pursuant

to

Examiner’s

the

Complaint

autopsy

allegations,

examination

of

“[t]he

Elizabeth’s

Medical
corpse

documented that Elizabeth had acute tonsillitis at the time
of

her

death.”

complained

of

a

(Id.).
severe

Plaintiffs
headache

3

argue

that

immediately

“Elizabeth
before

her

death,” which Plaintiffs contend was a symptom of hypoxia lack of oxygen to the brain. (Id.). To that end, Plaintiffs
aver that “Elizabeth could not breathe adequately as her
throat was swollen shut.” (Id.). Thus, Plaintiffs posit that
Elizabeth’s

“headache

and

her

death

were

caused

by

her

inability to breathe.” (Id.).
Plaintiffs’ position is that “[i]f a medical exam had
been performed [on Elizabeth] within 72 hours of taking her
into custody, her tonsillitis, which was a serious medical
condition, would have been easily diagnosed and successfully
treated.” (Id. at ¶ 20). Plaintiffs further submit that
Gualtieri’s “deliberate indifference and his custom, practice
and policy of not abiding by the Florida Child Welfare
regulations,

and

providing

medical

exams

to

children

involuntarily taken into his custody was a legal cause of
Elizabeth Holder’s death.” (Id. at ¶ 21).
Plaintiffs initiated this action on December 8, 2014,
setting forth the following claims against Gualtieri, both
individually and in his representative capacity as Sheriff of
Pinellas County:
1. 42 U.S.C. § 1983 – Constitutional Violations
Claim of Estate of Elizabeth Holder;

4

2. 42 U.S.C. § 1983 – Constitutional Violations
Claim of Corey Holder, as natural father;
3. 42 U.S.C. § 1983 – Constitutional Violations
Claim of Stephanie Ann Judah, as natural
mother;
4. Wrongful Death under Florida Statute [§§]
768.16 and 768.28;
5. Survivor Father Corey Holder; and
6. Survivor Mother Stephanie Judah
(See Doc. # 1). Gualtieri filed the present Motion on January
6, 2015, pursuant to Fed. R. Civ. P. 12(b)(6), which is ripe
for the Court’s review. (See Doc. # 6).
II. Legal Standard
On a motion to dismiss, this Court accepts as true all
of the factual allegations in the complaint and construes
them in the light most favorable to the plaintiff. Jackson v.
Bellsouth Telecomms., 372 F.3d 1250, 1262 (11th Cir. 2004).
Further, this Court favors the plaintiff with all reasonable
inferences from the allegations in the complaint. Stephens v.
Dep’t of Health & Human Servs., 901 F.2d 1571, 1573 (11th
Cir. 1990)(“On a motion to dismiss, the facts stated in [the]
complaint and all reasonable inferences therefrom are taken
as true.”). However, the Supreme Court explains that:

5

While a complaint attacked by a Rule 12(b)(6)
motion to dismiss does not need detailed factual
allegations, a plaintiff’s obligation to provide
the grounds of his entitlement to relief requires
more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action
will not do. Factual allegations must be enough to
raise a right to relief above the speculative
level.
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal
citations omitted). Further, courts are not “bound to accept
as true a legal conclusion couched as a factual allegation.”
Papasan v. Allain, 478 U.S. 265, 286 (1986).
In

accordance

with

Twombly,

Federal

Rule

of

Civil

Procedure 8(a) calls “for sufficient factual matter, accepted
as true, to ‘state a claim to relief that is plausible on its
face.’” Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009) (quoting
Twombly, 550 U.S. at 570). A plausible claim for relief must
include “factual content [that] allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Id.
III. Analysis
Gualtieri argues that Plaintiffs fail to specify whether
Gualtieri

is

being

sued

in

his

official

or

individual

capacity. (Doc. # 6 at 6). Specifically, Gualtieri contends
that:

6

Plaintiffs list Sheriff both in his individual and
official capacity in the caption but never identify
which claims or causes of action are brought
against which capacity of Sheriff. Plaintiff’s
factual allegations appear to state that Sheriff
Bob Gualtieri himself (not one of his employees)
removed the minor, Elizabeth Holder, from the home
of her parents. However, since Plaintiffs[] are
aware that this is patently false, and considering
the wholesale incorporation of all preceding
paragraphs, perhaps the allegation is meant to be
understood that an employee of Sheriff removed the
child in the course and scope of employment at the
Pinellas County Sheriff’s Office. Either way,
Sheriff is left to speculate.
(Id.)(internal citation omitted).
Instead, as suggested by Gualtieri, the Complaint is
“divided

by

supposed

various

claimants.”

(Id.

at

8).

Gualtieri argues that “Plaintiffs’ choice to separate counts
by claimant does not place Sheriff or the Court on notice of
the theory of liability as to each capacity of Sheriff.”
(Id.).
In response, Plaintiffs provide that “[t]he complaint is
clear that Sheriff Gualtieri is sued both in his individual
capacity and in his official capacity as the Sheriff of
Pinellas County.” (Doc. # 10 at 5). Although paragraph 4 of
the Complaint alleges that “at all times material hereto, the
actions,

policies,

customs,

7

practices,

and

conduct

hereinafter alleged were performed and implemented by the
Pinellas

County

Sheriff

and

his

duties,

officers

and

employees within the course and scope of their employment and
under color of state and local law in Pinellas County,
Florida”

(Doc.

#

1

at

2),

Plaintiffs

posit

that

“this

allegation does not necessarily mean that the Sheriff acted
only in his official capacity as to that paragraph[].” (Doc.
# 10 at 5).
To that end, Plaintiffs provide that:
[t]he thrust of the Complaint was not the Sheriff’s
involuntary removal of the deceased child into his
custody, but [ ] his policy and custom of
deliberately ignoring a State regulation that
required medical treatment of the child within 72
hours of being taken into custody. This was done by
the Sheriff both individually and in his official
capacity as Sheriff.
(Id.)(citing Kentucky v. Graham, 473 U.S. 159 (1985)).
As set forth in Kentucky:
On the merits, to establish personal liability in
a § 1983 action, it is enough to show that the
official, acting under color of state law, caused
the deprivation of a federal right. More is
required in an official-capacity action, however,
for a governmental entity is liable under § 1983
only when the entity itself is a “moving force”
behind the deprivation, thus, in an officialcapacity suit the entity's “policy or custom” must
have played a part in the violation of federal law.

8

When it comes to defenses to liability, an official
in a personal-capacity action may, depending on his
position, be able to assert personal immunity
defenses, such as objectively reasonable reliance
on existing law. In an official-capacity action,
these defenses are unavailable. The only immunities
that can be claimed in an official-capacity action
are forms of sovereign immunity that the entity,
qua entity, may possess, such as the Eleventh
Amendment.
While
not
exhaustive,
this
list
illustrates the basic distinction between personaland official-capacity actions.
With this distinction in mind, it is clear that a
suit against a government official in his or her
personal capacity cannot lead to imposition of fee
liability upon the governmental entity. A victory
in a personal-capacity action is a victory against
the individual defendant, rather than against the
entity that employs him. Indeed, unless a distinct
cause of action is asserted against the entity
itself, the entity is not even a party to a
personal-capacity lawsuit and has no opportunity to
present a defense. That a plaintiff has prevailed
against one party does not entitle him to fees from
another party, let alone from a nonparty.
Kentucky,

473

U.S.

at

166-68

(internal

citations

and

quotations omitted).
Although the Complaint separates each count by claimant,
the Complaint fails to identify, as to each count, under which
capacity Gualtieri is being sued; namely, in his individual
capacity or official capacity as the Sheriff of Pinellas
County. As described in Kentucky, different defenses and

9

immunities may be raised depending on whether this action is
a personal-capacity action or an official-capacity action.
Due to Plaintiffs’ failure to identify whether this is a
personal-capacity
Gualtieri

is

action

required

to

or

an

official-capacity

hypothesize

what

action,

defenses

and

theories of liability apply in this action. Thus, Gualtieri
“is forced to respond to all counts collectively: first, as
if Plaintiffs are alleging official capacity liability under
§ 1983; and then, as if Plaintiffs are alleging individual
capacity liability under § 1983 followed by a similar analysis
applied to the state law cause of action.” (Doc. # 6 at 8).
The Court recognizes that Plaintiffs intend to “flesh
out during this proceeding in which capacity the Sheriff acted
when he deliberately ignored the statutory medical assessment
requirement for Elizabeth Holder.” (Doc. # 10 at 6). However,
as the Complaint is pled, this Court is unable to determine
whether Plaintiffs satisfied the pleading requirement of Fed.
R. Civ. P. 8(a). Further, this Court is unable to thoroughly
analyze the application of Gualtieri’s raised defenses and
theories of immunity.
Because the Complaint fails to provide a plain statement
of their claims showing that Plaintiffs are entitled to
relief, the Court grants Gualtieri’s Motion. The case is

10

dismissed without prejudice so that Plaintiffs may file an
amended

complaint

that

complies

with

the

pleading

requirements of the Federal Rules of Civil Procedure. With
respect to each separate count, the amended complaint should
clarify whether Plaintiffs are suing Gualtieri individually
or in his official capacity.
Accordingly, it is hereby
ORDERED, ADJUDGED, and DECREED:
(1)

Defendant
official

Bob

Gualtieri,

capacity

as

individually

Sheriff

of

and

Pinellas

in

his

County,

Florida’s Motion to Dismiss Plaintiffs’ Complaint (Doc.
# 6) is GRANTED.
(2)

Plaintiffs have until and including February 13, 2015,
to file their amended complaint in accordance with this
Order.
DONE and ORDERED in Chambers in Tampa, Florida, this

27th day of January, 2015.

Copies: All Counsel of Record

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