Holder v. Gualtieri

Filing 31

ORDER granting in part and denying in part 26 Defendant's Motion to Dismiss Plaintiff's Amended Complaint. The Motion is granted in part as to Count I, which is dismissed without prejudice, and denied in part as to Count II. The Cour t grants Plaintiff leave to file a Second Amended Complaint within 14 days of the date of this Order. Plaintiff is not required to amend Count II. Defendant is advised that any additional immunity arguments should be raised at the summary judgment stage and not in a subsequent motion to dismiss. Signed by Judge Virginia M. Hernandez Covington on 4/24/2015. (KM)

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,
Plaintiff,
v.

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

BOB GUALTIERI, in his official
capacity as Sheriff of Pinellas
County, Florida,
Defendant.
________________________________/
ORDER
This cause is before the Court pursuant to the Motion to
Dismiss Plaintiff’s Amended Complaint (Doc. # 26), filed on
March 2, 2015, by Defendant Bob Gualtieri, who is sued in his
official capacity as the Sheriff of Pinellas County, Florida
(“the Sheriff”). On March 12, 2015, Plaintiff Corey D. Holder
(“Holder”) filed a response in opposition to the Motion.
(Doc. # 27).

On March 19, 2015, the Sheriff filed a reply,

with leave of Court.

(Doc. ## 29-30).

For the reasons that

follow, the Sheriff’s Motion to Dismiss is granted in part and
denied in part.
I.

Background
On December 8, 2014, Holder initiated the instant action

in his capacity as personal representative, alleging that his
five-year-old daughter, Elizabeth Holder (“Elizabeth”), died
while in the Sheriff’s custody.

(Doc. # 1).

On January 27,

2015, this Court granted the Sheriff’s motion to dismiss the
original complaint, due to Holder’s failure to specify whether
the Sheriff was sued in his individual capacity or official
capacity with respect to each of the six counts.

(Doc. ## 6,

14).
On February 4, 2015, Holder filed an Amended Complaint,
suing the Sheriff in his official capacity only.
at ¶ 5).

(Doc. # 23

The Amended Complaint includes two counts: a claim

pursuant to 42 U.S.C. § 1983 (Count I) and a state-law claim
pursuant

to

Florida’s

Wrongful

§§ 768.16, et seq. (Count II).

Death

Act,

Fla.

(Id. at ¶¶ 19-37).

Stat.
The

relevant facts follow.
On January 11, 2013, Elizabeth was involuntarily removed
from the custody of her parents by the Child Protection
Division of the Pinellas County, Florida Sheriff’s Office.
(Id. at ¶¶ 7-8).

Holder alleges that Elizabeth died eight
(Id. at ¶¶ 7, 12, 14).

days later, from tonsillitis.

The

Sheriff failed to submit Elizabeth to a medical assessment by
a licensed healthcare professional within 72 hours of taking
her into custody, as required by section 65C-29.008 of the
Florida Administrative Code. (Id. at ¶¶ 9-10). Had Elizabeth
received a timely medical assessment, Holder alleges that her
tonsillitis would have been detected, and Elizabeth would not
have died.

(Id. at ¶¶ 12-13).

2

Holder maintains that the Sheriff had a custom, policy,
and practice of involuntarily removing children from their
parents without ensuring that the children were examined by a
healthcare professional within 72 hours.

(Id. at ¶ 11).

In

particular, a review of 884 cases in which the Sheriff removed
children in 2012 showed that the medical assessment was
performed in only 279 cases.

(Id.).

The Sheriff told the

media after Elizabeth’s death that there was a “problem with
our policy” and “it was a problem with procedure, it’s a
system problem, not any one individual’s fault,” and further
stated

“I

accept

complete

responsibility

“[t]his is something we should have done.”

for

this,”

and

(Id.).

In the Motion to Dismiss, the Sheriff claims entitlement
to Eleventh Amendment immunity and sovereign immunity.
Doc. # 26).

(See

The Sheriff also argues that Holder fails to

state a claim for relief under either section 1983 or the
Florida Wrongful Death Act.

(See Id.).

The Motion is ripe

for the Court’s review.
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

3

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:

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
A.

Eleventh Amendment Immunity

Absent waiver or a valid Congressional override, a suit
4

against a state in federal court is barred by the Eleventh
Amendment.

Odebrecht Constr., Inc. v. Sec., Fla. Dep’t of

Transp., 715 F.3d 1268, 1289 (11th Cir. 2013).

Eleventh

Amendment immunity extends beyond the state itself “to state
officers and entities when they act as an ‘arm of the state.’”
Lightfoot v. Henry Cnty. Sch. Dist., 771 F.3d 764, 768 (11th
Cir. 2014) (internal quotation marks omitted).
does

not

apply

“to

counties,

municipal

The immunity

corporations,

similar political subdivisions of the state.”

or

Id.

In assessing whether an entity may be considered an “arm
of the state,” courts evaluate four factors: (1) how state law
defines the entity, (2) what degree of control the state
maintains over the entity, (3) the source of the entity’s
funds, and (4) who is responsible for judgments against the
entity.

Manders v. Lee, 338 F.3d 1304, 1309 (11th Cir. 2003)

(en banc).

The four factors are assessed “in light of the

particular function in which the defendant was engaged” at the
time the cause of action arose.

Id. at 1308.

Although this

necessarily entails a case-by-case inquiry, the Eleventh
Circuit has “repeatedly held that Florida’s sheriffs are not
arms of the state” and are therefore not entitled to Eleventh
Amendment immunity.

Abusaid v. Hillsborough Cnty. Bd. of

Cnty. Comm'rs, 405 F.3d 1298, 1304 (11th Cir. 2005).
In the instant Motion, the Sheriff concedes that he would
not be entitled to Eleventh Amendment immunity if he were
5

carrying out traditional police functions.

(Doc. # 26 at 7).

Nonetheless, the Sheriff maintains that, under the unique
circumstances of this case, he was performing duties typically
within the sole purview of the State of Florida’s Department
of Children and Families (“DCF”), sufficient to afford him arm
of the state status.

(Id. at 6-7; Doc. # 30 at 2).

Upon

consideration of the four factors, the Court finds that the
Sheriff has failed to demonstrate that he is entitled to arm
of the state status, at this juncture.
As to the first factor — how state law defines the entity
— the Eleventh Circuit has held that “Florida's constitution
and case law establish overwhelmingly that Florida law defines
sheriffs as county officials.” Abusaid, 405 F.3d at 1306. As
a result, the first factor “weighs heavily against assigning
arm of the state status to a Florida sheriff.”

Id. at 1305.

In the Motion to Dismiss, the Sheriff cites no legal authority
that

warrants

a

different

result;

rather,

the

Sheriff’s

arguments pertain to the remaining three factors.

(See Doc.

# 26 at 7-9).
The second factor addresses what degree of control the
state retains over the function the Sheriff was performing at
the time the cause of action arose.
1308.

In

this

case,

the

Sheriff

Manders, 338 F.3d at
maintains

that

child

protective services in Pinellas County are controlled by the
state, by virtue of Fla. Stat. § 39.3065.
6

(Doc. # 26 at 6-8;

Doc. # 30 at 3-4).

Specifically, section 39.3065 requires

that DCF:
transfer all responsibility for child protective
investigations for Pinellas County, Manatee County,
Broward County, and Pasco County to the sheriff of
that county in which the child abuse, neglect, or
abandonment is alleged to have occurred.
Each
sheriff is responsible for the provision of all
child protective investigations in his or her
county.
Each individual who provides these
services must complete the training provided to and
required of protective investigators employed by
the Department of Children and Families.
Fla. Stat. § 39.3065(1).

The statute additionally requires

the Sheriff to “operate, at a minimum, in accordance with the
performance standards and outcome measures established by the
Legislature for protective investigations conducted by [DCF].”
Fla.

Stat.

protective

§

39.3065(3)(b).

investigations

are

The

procedures

detailed

for

in

Part

child
III

(“Protective Investigations”) of Chapter 39 of the Florida
Statutes.

See Fla. Stat. §§ 39.301-39.308.

These statutory provisions do indicate that the state
retains a degree of control over the Sheriff’s performance of
child protective investigations.

Based on the allegations in

the Amended Complaint, however, the “particular function” at
issue

is

arguably

Elizabeth’s

custody – not an investigation.
¶¶ 8-9).

removal

from

her

parents’

(See, e.g., Doc. # 23 at

Removal is governed under Part IV (“Taking Children

into Custody and Shelter Hearings”) of Chapter 39 of the

7

Florida

Statutes.

Specifically,

pursuant

to

Fla.

Stat.

§ 39.401, a child may be taken into custody if there is
probable cause to support a finding of abuse, neglect, or
abandonment by either: (1) an authorized agent of DCF; or (2)
“a law enforcement officer.”

Fla. Stat. § 39.401(1)(b).

If

a law enforcement officer removes a child, the officer may
only release the child to certain specified individuals,
including a relative or non-relative, or the officer may
deliver the child to an authorized agent of DCF.

Fla. Stat.

§ 39.401(2).

Removal and placement with a relative or non-

relative,

turn,

in

triggers

the

protections

of

Florida

Administrative Code section 65C-29.008, the provision on which
Holder bases his claims.
30).

(See, e.g., Doc. # 23 at ¶¶ 9, 25,

Specifically, section 65C-29.008 mandates that “an

initial health care assessment by a licensed health care
professional shall be completed for every child placed with a
relative, non-relative, or in licensed care.”

Fla. Admin.

Code § 65C-29.008(1).1
In

the

Motion

to

Dismiss,

the

Sheriff

does not

meaningfully address the distinction between child protective

1

This section of the Florida Administrative Code is
authorized pursuant to Fla. Stat. § 39.407, which provides:
“When any child is removed from the home and maintained in an
out-of-home placement, the department is authorized to have a
medical screening performed on the child without authorization
from the court and without consent from a parent or legal
custodian.” Fla. Stat. § 39.407(1).
8

investigations and removals.
1-5).

(Doc. # 26 at 7-9; Doc. # 30 at

On its face, Fla. Stat. § 39.401(1)(b) appears to

authorize any law enforcement officer to remove a child —
without limitation to the sheriffs authorized to perform child
protective investigations under Fla. Stat. § 39.3065.
Wimer

v.

Vila,

37

F.

Supp.

2d

1351,

1352

(M.D.

See
Fla.

1999)(addressing removal by Collier County deputy sheriffs).
The Court is therefore not persuaded that DCF’s transfer of
responsibility for child protective investigations to the
Sheriff,

pursuant

to

Fla.

Stat.

§

39.3065,

necessarily

demonstrates state control over the “particular function” at
issue in this case.

Manders, 338 F.3d at 1308.

Even assuming that the second factor does weigh in favor
of arm of the state status, the Sheriff fails to demonstrate
that the remaining two factors are similarly weighted.

As to

the third factor – the source of the entity’s funds — the
Sheriff

argues

that

Fla.

Stat.

§

39.3065

provides

that

“funding for the investigative responsibilities assumed by the
sheriffs” is appropriated to DCF, which, in turn, awards
grants to the sheriffs.

Fla. Stat. § 39.3065(3)(c).

The

statute requires that the funds remain separate from the
sheriffs’ regular budgets.

Id.

As discussed, it is not clear that Elizabeth’s removal
was accomplished pursuant to the Sheriff’s “investigative
responsibilities” under Fla. Stat. § 39.3065. And the Sheriff
9

identifies no other authority suggesting that he receives
funding from state sources.

Abusaid, 405 F.3d at 1310

(explaining that sheriffs’ budgets are funded entirely by
county taxes).

As a result, the Sheriff fails to demonstrate

that state money funded the “particular function” at issue.
See Id.
Finally, the fourth factor concerns whether a judgment
would be paid out of the state treasury.

In the instant

Motion, the Sheriff fails to directly address whether a
judgment would be paid by the state or by the Sheriff.
# 26 at 8).
issue.

(Doc.

The Sheriff’s Reply contains no analysis on this

(See Doc. # 30).

The Eleventh Circuit has previously

held that this factor “weighs decidedly against arm of the
state status” because there is no provision in Florida law
suggesting that a judgment against a sheriff would be paid out
of the state treasury.

Abusaid, 405 F.3d at 1312; see also

Hufford v. Rodgers, 912 F.2d 1338, 1342 (11th Cir. 1990)
(noting that sheriff was insured through monies appropriated
by county commission, as part of a self-insurance fund, and
that “the parties here could not invoke the State of Florida
to pay any judgment on behalf of [the Sheriff]”); accord Rivas
v. Freeman, 940 F.2d 1491, 1495 (11th Cir. 1991).
Based on the foregoing, the Sheriff fails, at this
juncture, to demonstrate that Eleventh Amendment immunity bars

10

Holder’s claim.

The Motion to Dismiss is therefore denied on

this ground, without prejudice to reassertion of the immunity
defense

at

the

summary

judgment

stage.

Misener

Marine

Constr., Inc. v. Ga. Ports Auth., 199 F. App’x 899, 900 (11th
Cir. 2006).
B.

Section 1983 (Count I)

Section 1983 of the Civil Rights Act of 1871 creates a
cause of action for the deprivation of rights, privileges, or
immunities secured by the federal Constitution or federal law,
by any person acting under color of state law.

42 U.S.C.

§ 1983; Arrington v. Cobb Cnty., 139 F.3d 865, 872 (11th Cir.
1998).

To prevail on a claim for relief under section 1983,

a plaintiff must establish that: (1) he has been deprived of
a right, privilege, or immunity secured by the Constitution or
federal law, and (2) the deprivation occurred under color of
state law.

Id.; Mingo v. City of Mobile, 592 F. App’x 793,

799 (11th Cir. 2014)(citing Griffin v. City of Opa–Locka, 261
F.3d 1295, 1303 (11th Cir. 2001)).
Holder sues the Sheriff in his official capacity, which
is the functional equivalent of a suit against Pinellas
County.

See Vineyard v. Cnty. of Murray, 990 F.2d 1207, 1210

n.3 (11th Cir. 1993).

It is well-established that counties

are “persons” within the scope of section 1983.

McDowell v.

Brown, 392 F.3d 1283, 1289 (11th Cir. 2004).

However, a

11

section 1983 claim against a municipality “must be predicated
upon an injury inflicted by a municipal policy or custom.”
Mingo, 592 F. App’x at 799 (citing City of Canton v. Harris,
489 U.S. 378, 385 (1989)).

An official policy or custom may

be shown in several ways, including “the decisions of a
government’s

lawmakers,

the

acts

of

its

policymaking

officials, and practices so persistent and widespread as to
practically have the force of law.”

Id. (citing Connick v.

Thompson, 131 S.Ct. 1350, 1359 (2011)).
Alternatively, a plaintiff may demonstrate an official
policy by showing that the municipality had a “policy of
inadequate training or supervision.”

Id.

Under this theory,

a facially lawful municipal action may violate the plaintiff’s
rights if it “was taken with ‘deliberate indifference’ as to
its known or obvious consequences.” Id. (quoting Bd. of Cnty.
Commr’s of Bryan Cnty. v. Brown, 520 U.S. 397, 407 (1997))
(internal quotation marks omitted). In order to establish a
municipality’s deliberate indifference, “a plaintiff must
demonstrate that the municipality knew of the need to train in
a particular area and that it made a deliberate choice not to
take any action.” Id. (citing Gold v. City of Miami, 151 F.3d
1346, 1350 (11th Cir. 1998)).

Deliberate indifference may be

demonstrated in two ways: (1) by alleging “a widespread
pattern of similar constitutional violations by untrained

12

employees,” or (2) “by showing that the need for training was
so

obvious

that

a

municipality's

failure

to

train

its

employees would result in a constitutional violation.” Id. at
799-800 (citing Connick, 131 S.Ct. at 1360).
In the Motion to Dismiss, the Sheriff raises two primary
arguments.

First, the Sheriff maintains that Holder fails to

allege a deprivation of rights guaranteed by federal law.
(Doc. # 26 at 10-11).

Second, the Sheriff argues that Holder

fails to adequately allege that a municipal policy or custom
caused the violation of federal law.

(Id. at 11-16).

As

explained below, the Motion to Dismiss is granted as to Count
I, due to Holder’s failure to allege a deprivation of rights
guaranteed by federal law.
In the Amended Complaint, Holder alleges that the denial
of Elizabeth’s “statutory right to a timely medical assessment
violated

her

Amendment.”

right

to

due

process

(Doc. # 23 at ¶ 25).

under

the

Fourteenth

Holder does not specify

whether he is alleging a deprivation of substantive due
process or procedural due process. See Vinyard v. Wilson, 311
F.3d 1340, 1356 (11th Cir. 2002) (distinguishing substantive
due process and procedural due process claims). To the extent
that Holder attempts to allege a substantive due process claim
based on the Sheriff’s violation of a Florida administrative
rule,

that

claim

fails.

It

13

is

well-established

that

substantive rights created by state law are “not subject to
substantive due process protection under the Due Process
Clause because substantive due process rights are created only
by the Constitution.”

Goodman v. City of Cape Coral, 581 F.

App’x 736, 738-39 (11th Cir. 2014) (quoting McKinney v. Pate,
20 F.3d 1550, 1556 (11th Cir. 1994)) (internal quotation marks
omitted); Greenbriar Vill., L.L.C. v. Mountain Brook, City,
345 F.3d 1258, 1262 (11th Cir. 2003).
On the other hand, the Eleventh Circuit has held that
foster children have a cognizable liberty interest, under the
substantive due process clause, “to be free from unnecessary
pain and a fundamental right to physical safety.”

Ray v.

Foltz, 370 F.3d 1079, 1082 (11th Cir. 2004); Taylor By and
Through Walker v. Ledbetter, 818 F.2d 791, 794 (11th Cir.
1987) (en banc).

As currently pled, the Amended Complaint

does not appear to allege a violation of a constitutionallyprotected liberty interest because the claim is expressly
premised on a violation of section 65C-29.008 of the Florida
Administrative Code.
In

contrast

to

(See Doc. # 23 at ¶ 25).
a

substantive

due

process

claim,

a

procedural due process claim may be based on a state-created
property or liberty interest.

Ward v. Downtown Dev. Auth.,

786 F.2d 1526, 1531 (11th Cir. 1986).
regulations

must,

however,

create

The state laws or
“a

sufficiently vested” claim of entitlement.
14

legitimate

and

Taylor, 818 F.2d

at 798; see Doe v. Moore, 410 F.3d 1337, 1350 (11th Cir. 2005)
(observing that state-created procedural rights, under the
Florida

Administrative

particular

substantive

Code,

“that

outcome

are

do

not

not

guarantee

protected

by

a
the

Fourteenth Amendment, even where such procedural rights are
mandatory”) (internal quotation marks omitted). For instance,
a child may allege a deprivation of procedural due process
where state law “mandates that officials follow guidelines and
take affirmative actions to ensure the well being and promote
the welfare of children in foster care.”
799 (analyzing Georgia law).

Taylor, 818 F.2d at

Under these circumstances, a

child “can state a claim based upon deprivation of a liberty
interest in personal safety when the officials fail to follow
this mandate.”
The

Id.

substance

of

Count

I

suggests

that

Holder

is

attempting to proceed under a procedural due process theory,
as Holder bases the claim on the denial of a state-created
right.

(Doc. # 23 at ¶ 25).

However, Holder fails to

specifically identify the liberty or property interest of
which Elizabeth was allegedly deprived, and Holder also fails
to allege that the process provided was inadequate.

See

Wimer, 37 F. Supp. 2d at 1354 (holding that plaintiffs failed
to state a procedural due process violation in connection with
Fla. Stat. § 39.401 because they failed to identify an
alternative pre-deprivation procedure).
15

Morever, in the

response in opposition, Holder maintains that the section 1983
claim

is

premised

on

the

deprivation

of

Elizabeth’s

"Constitutional right to life without due process,” rather
than a state-created right.

(Doc. # 27 at 16).

Accordingly, Count I is dismissed without prejudice and
with leave to amend. To the extent that Holder seeks to raise
more than one constitutional violation pursuant to section
1983

(i.e.,

a

substantive

due

process

violation

and

a

procedural due process violation), he is directed to include
each alleged constitutional violation in a separate count,
with the requisite supporting factual allegations.
Absent a clearly alleged constitutional violation, the
Court is unable to determine whether Holder has adequately
alleged that the violation was caused by a municipal custom or
policy.

The Court therefore expresses no opinion on the

adequacy of Holder’s allegations in this respect.

Compare

Crispell v. Fla. Dep’t of Children & Families, No. 8:11-cv1527, 2012 WL 3599349, at *4-5 (M.D. Fla. Aug. 20, 2012)
(granting motion to dismiss for failure to state a claim based
on inadequate allegations of custom, policy, and failure-totrain), with Woodburn v. State of Fla. Dep't of Children &
Family Servs., 854 F. Supp. 2d 1184, 1201 (S.D. Fla. 2011)
(holding

that

allegations

were

municipal custom or policy).

sufficient

to

allege

a

Likewise, the Court does not

address the parties’ arguments regarding the consideration of
16

an exhibit outside of the pleadings – Elizabeth’s autopsy
report — which the Sheriff offers on the issue of causation.
(See Doc. # 26 at 3-5; Doc. # 27 at 2-5).
Based on the foregoing, the Sheriff’s Motion to Dismiss
Count I is granted.
C.

Wrongful Death (Count II)

In Florida, a claim for wrongful death is “created and
limited by Florida’s Wrongful Death Act.”

Cinghina v. Racik,

647 So. 2d 289, 290 (Fla. 4th DCA 1994); Estate of McCall v.
United States, 134 So. 3d 894, 915 (Fla. 2014).

The Act

provides a right of action “[w]hen the death of a person is
caused by the wrongful act, negligence, default, or breach of
contract or warranty of any person . . . and the event would
have entitled the person injured to maintain an action and
recover

damages

if

death

had

not

ensued.”

Fla.

Stat.

§ 768.19; Knowles v. Beverly Enters.–Fla., Inc., 898 So. 2d 1,
8–9 (Fla. 2004).

To state a claim for negligence in a

wrongful death action, a plaintiff must allege: “(1) the
existence of a legal duty owed to the decedent, (2) breach of
that duty, (3) legal or proximate cause of death was that
breach, and (4) consequential damages.”

Jenkins v. W.L.

Roberts, Inc., 851 So. 2d 781, 783 (Fla. 1st DCA 2003).
Pursuant to Fla. Stat. § 768.28, the state of Florida,
including its agencies and subdivisions, has waived sovereign

17

immunity for tort claims.

Fla. Stat. § 768.28(1); Beard v.

Hambrick, 396 So. 2d 708, 711 (Fla. 1981) (holding that the
waiver applies to sheriffs).

The exclusive remedy is against

the government entity, or the head of the government entity in
his official capacity, unless an employee acted with bad
faith, malicious purpose, or wanton and willful disregard of
human rights, safety, or property. Fla. Stat. § 768.28(9)(a).
Despite the statutory waiver of sovereign immunity, a
government entity remains immune from suit for certain policy
and planning decisions, under the “discretionary function”
exception.

Cook ex rel. Estate of Tessier v. Sheriff of

Monroe Cnty., 402 F.3d 1092, 1117-18 (11th Cir. 2005).

For

instance, decisions regarding how to train employees and what
subject matter to include in training represent an exercise of
governmental discretion.
Petersburg,

260

F.3d

Id. at 1118; Lewis v. City of St.

1260,

1264

(11th

Cir.

2001).

By

contrast, “operational” acts remain subject to the statutory
waiver of sovereign immunity.

Cook, 402 F.3d at 1118.

In the instant Motion, the Sheriff argues that Holder
fails to state a wrongful death claim because Holder does not
allege that the Sheriff’s employees committed a negligent act.
(Doc. # 26 at 17-18). Further, to the extent Holder challenges
the

Sheriff’s

Sheriff

argues

policy
that

regarding
he

medical

retains

discretionary-function exception.
18

assessments,

immunity

under

(Id. at 17-20).

the
the

The Amended Complaint adequately states a claim for
wrongful death. Specifically, Holder alleges that the Sheriff
“through his officers, employees and/or agents, took Elizabeth
Holder into his custody.”

(Doc. # 23 at ¶ 29).

Holder

maintains that the Sheriff had a common-law duty to provide
reasonably adequate medical care, as well as a statutory duty
to submit Elizabeth to a medical assessment within 72 hours.
(Id. at ¶¶ 29-30).
medical

assessment

Had Elizabeth been provided the requisite
within

72

hours,

Holder

alleges

that

Elizabeth’s tonsilitis would have been treated, and she would
not have died.

(Id. at ¶ 33).

As a result, Elizabeth’s death

was “a direct and foreseeable consequence of the negligent
acts and omissions of Sheriff Gualtieri, and his officers,
employees and agents.” (Id. at ¶ 35).
The foregoing allegations sufficiently state a claim for
negligence based on the acts of the Sheriff’s officers,
employees, or agents.

Jenkins, 851 So. 2d at 783.

As

currently pled, the claim does not demonstrate that the
Sheriff’s

subordinates

acted

with

bad

faith,

malicious

purpose, or wanton and willful disregard, sufficient to place
their conduct outside the waiver of statutory immunity.

See

McGhee v. Volusia Cnty., 679 So. 2d 729, 733 (Fla. 1996)
(holding that, under the facts of the case, the issue of bad
faith must be submitted to a fact-finder); Baldwin v. City of
Fort Lauderdale, 961 So. 2d 1015, 1015 (Fla. 4th DCA 2007)
(same).
19

Moreover, Count II does not appear to challenge a policy
decision

by

the

Sheriff,

sufficient

to

implicate

the

discretionary-function exception to the statutory waiver of
sovereign immunity.

Rather, the Amended Complaint alleges

negligence by the Sheriff’s subordinates, in failing to obtain
a medical assessment, which is arguably operational in nature.
See Dep’t of Health & Rehabilitative Servs. v. Yamuni, 529 So.
2d 258, 259 (Fla. 1988) (holding that caseworker’s failure to
remove child from mother’s custody was an operational-level
activity); Floyd v. Dep’t of Children & Families, 855 So. 2d
204,

205-06

(Fla.

1st

DCA

2003)

(holding

that

DCF

investigator’s actions, in returning child to the custody of
an abuser, were operational-level).
The Sheriff alternatively argues that Fla Stat. § 39.011
provides “additional immunity.”

(Doc. # 26 at 18).

That

statute provides:
In no case shall employees or agents of the
department or a social service agency acting in
good faith be liable for damages as a result of
failing to provide services agreed to under the
case plan unless the failure to provide such
services occurs as a result of bad faith or
malicious purpose or occurs in a manner exhibiting
wanton and willful disregard of human rights,
safety, or property.
Fla

Stat. § 39.011(1).

extended

to

the

Sheriff’s

Even if this immunity could be
subordinates,

based

on

their

responsibility for child protective investigations under Fla.
Stat. § 39.3065, the Amended Complaint does not allege a
failure “to provide services agreed to under the case plan,”
20

or that such a plan even exists.

See Fla. Stat. § 39.01(11)

(defining “case plan” as a document described under section
39.6011); Fla. Stat. § 39.6011(1)(a) & (6)(b)(2) (providing
that

a

case

plan

must

be

developed

in

a

face-to-face

conference, within 60 days of an out-of-home placement).
Accordingly, the Sheriff fails to demonstrate entitlement to
immunity under Fla. Stat. § 39.011.
Based on the foregoing, the Sheriff’s Motion to Dismiss
Count II is denied.
Accordingly, it is now ORDERED, ADJUDGED, and DECREED:
(1)

The Sheriff’s Motion to Dismiss (Doc. # 26) is GRANTED IN

PART as to Count I, which is dismissed without prejudice, and
DENIED IN PART as to Count II.
(2)

The Court grants Holder leave to file a Second Amended

Complaint within 14 days of the date of this Order, in order
to cure the deficiencies detailed above with respect to the
section 1983 claim(s).
II.

Holder is not required to amend Count

The Sheriff is advised that any additional immunity

arguments should be raised at the summary judgment stage and
not in a subsequent motion to dismiss.
DONE and ORDERED in Chambers in Tampa, Florida, this 24th
day of April, 2015.

Copies: All Counsel of Record

21