Holder v. Gualtieri

Filing 48

ORDER: Defendant Bob Gualtieri's Motion to Dismiss the Second Amended Complaint 35 is DENIED. Defendant has until and including July 20, 2015, to file his Answer to Plaintiff's Second Amended Complaint. Signed by Judge Virginia M. Hernandez Covington on 7/6/2015. (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,
Plaintiff,
v.

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

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 Seconded Amended Complaint (Doc. # 35),
filed on May 29, 2015, by Defendant Bob Gualtieri, who is
sued in his official capacity as the Sheriff of Pinellas
County, Florida (“the Sheriff”). On June 10, 2015, Plaintiff
Corey D. Holder (“Holder”) filed a response in opposition to
the Motion. (Doc. # 39). On June 19, 2015, with leave of
Court, the Sheriff filed a reply. (Doc. # 45). For the reasons
that follow, and those stated at the Motion hearing on June
30, 2015, the Sheriff’s Motion is denied.
I. Background

Holder brings this action in his capacity as personal
representative, alleging that his five-year-old daughter,
Elizabeth Holder (“Elizabeth”), died while in the Sheriff’s
custody. (See Doc. # 1). As set forth in the operative
Complaint, 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. (Doc. # 32 at ¶ 10). Holder alleges that Elizabeth
died eight days later from acute tonsillitis. (Id. at ¶ 16).
According to Holder, the Sheriff had an “affirmative duty” to
protect Elizabeth’s fundamental liberty rights to physical
safety and security, and freedom from unreasonable risk of
harm without due process of law. (Id. at ¶¶ 11-12). However,
Holder alleges that the Sheriff failed to submit Elizabeth to
a medical assessment by a licensed health care professional
within 72 hours of taking her into custody, as required by
Florida Administrative Code § 65C-29.008. (Id. at ¶¶ 13-15).
Had Elizabeth received a timely medical screening, Holder
alleges that her tonsillitis would have been detected, and
Elizabeth would not have died. (Id. at ¶ 17).
II. Legal Standard
On a Rule 12(b)(6), Fed. R. Civ. P., motion to dismiss,
this

Court

accepts

as

true

all

2

the

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

inferences

stated

in

[the]

therefrom

are

complaint

taken

as

and

all

true.”).

reasonable

However,

in

Twombly, the Supreme Court cautioned:
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).

In addition, 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).
Furthermore, “[t]hreadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do
not suffice.” Ashcroft v. Iqbal, 556 U.S. 662 (2009).
Federal

Rule

of

Civil

Procedure

8(a)

calls

“for

sufficient factual matter, accepted as true, to ‘state a claim

3

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. Autopsy Report
Attached to the Motion to Dismiss is an Autopsy Report.
(Doc. # 35-1). According to the Sheriff, the Report, which he
alleges is both central to Holder’s claims and undisputed, is
misquoted in the Second Amended Complaint. (Doc. # 35 at 5).
Therefore, the Sheriff contends that it is “in the interest
of justice” to allow the introduction of the Report “[to
ensure] that the Court may examine the true document and form
its own conclusions. . . .” (Id. at 6).
Generally,

the

Court

may

only

“consider

a

document

attached to a motion to dismiss without converting the motion
into one for summary judgment if the attached document is (1)
central to the plaintiff's claim and (2) undisputed.” Day v.
Taylor, 400 F.3d 1272, 1276 (11th Cir. 2005) (citing Horsley
v. Feldt, 304 F.3d 1125, 1134 (11th Cir. 2002)). Here, without
opining as to whether the Report is central to this action,
the Court concludes that it need not consider the Report at

4

this stage. Rather, the Court is able to make a determination
on

the

present

Motion

without

utilizing

the

information

contained within the Report.
B. Substantive Due Process Claim (Count I)
The

Eleventh

Circuit

has

recognized

that

in

cases

involving the abuse of a minor in foster care, children have
a cognizable liberty interest “to be free from unnecessary
pain and a fundamental right to physical safety.” Ray v.
Foltz, 370 F.3d 1079, 1082 (11th Cir. 2004).
The Sheriff argues that Holder has not alleged any facts
to support a substantive due process claim, but instead,
relies solely on the Sheriff’s failure to follow Florida
Administrative

Code

§

65C-29.008,

which

provides

that

“[c]hildren who have been placed in licensed shelter must
have a medical screening within 72 hours of removal from home.
This screening is to detect any injury, illness, communicable
disease or need for immunization.” (Doc. # 35 at 11; Doc. #
32 at ¶ 29).
Upon review of the Second Amended Complaint, the Court
finds that Holder has satisfied the liberal standard of Fed.
R. Civ. P. 8(a) in asserting a substantive due process claim.
Namely, Holder alleges that Elizabeth was “involuntarily”
taken into custody by the Sheriff for her protection and was

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not provided the very services or treatment she needed to
survive. (Doc. # 32 at ¶¶ 10-14). Holder further provides
that the Sheriff had “no evidence that [Elizabeth] had been
seen or treated by any health care provider for years prior
to her removal,” which provided “more than reasonable basis
for the Sheriff to take affirmative action to see that she
was timely medically assessed.” (Id. at ¶ 31).
The operative Complaint does not rely exclusively on the
Sheriff’s failure to provide a medical assessment. Holder
instead alleges that the Sheriff’s inaction – by failing to
comply

with

Florida

Administrative

Code

§

65C-29.008

or

otherwise – deprived Elizabeth of the fundamental right to
physical safety and “to be free from unnecessary pain and a
fundamental right to physical safety.” Ray, 370 F.3d at 1082.
Therefore,

taking

all

reasonable

inferences

in

favor

of

Holder, the Court finds that Holder has sufficiently stated
a substantive due process claim. Accordingly, the Sheriff’s
Motion is denied as to Count I.
C. Procedural Due Process Claim (Count II)
With regard to Count II, the Sheriff asserts that Holder
fails to state a cognizable claim for procedural due process,
which requires: “(1) a deprivation of a constitutionallyprotected liberty or property interest; (2) state action; and

6

(3)

constitutionally

inadequate

process.”

(Doc.

#

35

at

13)(citing Grayden v. Rhodes, 345 F.3d 1225, 1232 (11th Cir.
2003)).
Fla.

Stat.

§

39.001(1)

states

that

the purpose

of

Chapter 39 is to "provide judicial and other procedures to
assure due process through which children . . . are assured
fair hearings . . . and to recognize, protect and enforce
their constitutional and other legal rights." See Fla. Stat.
§ 39.001(1). The Department of Child Services promulgated
specific

regulations

in

furtherance

of

this

goal;

particularly, Florida Administrative Code § 65C-29.008, which
specifically requires that a medical assessment by a licensed
health care professional will be completed for every child
entering emergency shelter care within 72 hours of removal.
See Fla. Admin. Code § 65C-29.008.
The statute at bar is similar to the Georgia statute
considered by the Eleventh Circuit in Taylor By and Through
Walker v. Ledbetter. 818 F.2d 791 (11th Cir. 1987)(en banc).
In Taylor, the statute placed an affirmative duty on the state
to protect children in their legal custody by providing, among
other

things,

“ordinary

medical

care.”

Id.

at

799.

The

Eleventh Circuit, in Taylor, found that the scheme “mandates
that officials follow guidelines and take affirmative actions

7

to ensure the well being and promote the welfare of children
in foster care. These children can state a claim based upon
deprivation of a liberty interest in personal safety when the
officials fail to follow this mandate.” Id.
Analogously, the statute at bar mandates that officials
follow guidelines and take affirmative actions to “promote
the health and well-being of all children under the state’s
care.”

See

Fla.

Stat.

§

39.001(1)(a).

While

the

Court

recognizes that the facts in Taylor are notably different
from those here, the Georgia statute analyzed in Taylor is
substantively similar to Fla. Stat. § 39.001(1) and Florida
Administrative Code § 65C-29.008.
Holder has alleged that the Sheriff failed to provide
Elizabeth with a medical assessment, as mandated by Florida
Administrative Code § 65C-29.008. (Doc. # 32 at ¶ 10). That
state regulation, Holder contends, created an entitlement to
protection of Elizabeth’s “constitutional liberty right to
physical safety and freedom from risk of unreasonable harm.”
(Id. at ¶¶ 10-11). Therefore, in failing to provide Elizabeth
with the state-created right to a medical assessment, Holder
argues that the Sheriff violated Elizabeth’s procedural due
process rights. (Id. at ¶ 11). As Fed. R. Civ. P. 8(a) affords
Holder all reasonable inferences, the Court finds that Holder

8

sufficiently alleges facts to support a claim for a procedural
due process violation. Thus, the Sheriff’s Motion is denied
as to Count II.
D. Respondeat Superior
The Sheriff contends that even if the Court were to find
a cause of action with regard to any of the counts, the
municipality cannot be held liable under section 1983 on a
respondeat superior theory for the actions of its employees.
(Doc. # 35 at 16)(citing Monell v. Dep’t of Soc. Servs., 436
U.S. 658, 691 (1978)).
In

response,

Holder

contends

that

the

Florida

Administrative Code put the Sheriff on notice of the need to
provide

Elizabeth

Sheriff’s

alleged

with

a

pattern

medical
of

assessment,

not

providing

and

the

assessments

constitutes deliberate indifference. (Doc. # 32 at ¶ 37).
Specifically,

Holder

argues

that

it

was

the

Sheriff’s

“custom, policy and practice” to take children into custody
without submitting them to a medical assessment within 72
hours, alleging that only 279 out of 884 children in custody
in 2012 were provided with a medical assessment. (Id. at ¶¶
32-33). According to Holder, this “widespread custom” of not
submitting

children

in

custody

to

medical

assessments

constitutes a deliberate disregard for their liberty rights.

9

(Id. at ¶ 34).
While the Sheriff contends that no facts have been
asserted to sustain a claim under section 1983 municipal
liability, the Court finds that Holder has satisfied his
burden, at this stage, of alleging a custom or usage with
force of law.

As the existence of such a custom is largely

a fact-based issue, the Sheriff’s arguments would be better
suited at the summary judgment stage when Holder has been
afforded

additional

discovery.

Therefore,

the

Sheriff’s

Motion is denied on this ground.
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
(1)

Defendant Bob Gualtieri’s Motion to Dismiss the Second
Amended Complaint (Doc. # 35) is DENIED.

(2)

Defendant has until and including July 20, 2015, to file
his Answer to Plaintiff’s Second Amended Complaint.
DONE and ORDERED in Chambers, in Tampa, Florida, this

6th day of July, 2015.

Copies:

All Counsel of Record

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