Holder v. Gualtieri

Filing 80

ORDER granting in part 73 Defendant's Motion for Summary Judgment as to Counts I and II of the Second Amended Complaint. The Motion is otherwise DENIED. The Court declines to exercise supplemental jurisdiction over Count III of the Second A mended Complaint, and that claim is therefore DISMISSED WITHOUT PREJUDICE. The statute of limitations is tolled pursuant to 28 U.S.C. § 1367(d). The Clerk is directed to enter judgment in favor of Defendant as to Counts I and II, terminate any pending motions, and to CLOSE this case. Signed by Judge Virginia M. Hernandez Covington on 4/29/2016. (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 Defendant’s
Motion for Summary Judgment, filed on February 16, 2016.
(Doc. # 73). On February 26, 2016, Plaintiff filed a response
in opposition (Doc. # 74), and Defendant filed a reply on
March 11, 2016 (Doc. # 75).

For the reasons that follow, the

Motion is granted in part and denied in part.
I.

Background
This action arises from the tragic death of five-year-old

Elizabeth Holder while she was placed in emergency shelter
care.

Elizabeth’s father, Corey Holder, as the personal

representative of her estate, sues Bob Gualtieri, in his
official capacity as Sheriff of Pinellas County, Florida (“the
Sheriff”).

Holder

alleges

that

the

Sheriff’s

employees

routinely failed to ensure that children removed from their
homes received a health care assessment within 72 hours, as
required by state law.

Elizabeth did not receive a health care assessment before
she died on January 19, 2013, her eighth day in shelter care.
Although the parties dispute the exact cause of Elizabeth’s
death, the coroner determined that a contributing condition
was tonsilitis.
received

a

Holder maintains that had his daughter

timely

health

care

assessment,

any

competent

medical practitioner would have discovered her condition and
Elizabeth’s death could have been prevented.
A. Elizabeth’s removal
On Friday, January 11, 2013, Deputy Justin Fineberg was
dispatched to investigate a report of possible child neglect.
(Doc. # 73-6 at ¶¶ 2, 4).

After interviewing Elizabeth’s

mother, Stephanie Judah, Elizabeth’s grandmother, Denette
Allali, and two neighbors, Fineberg called the Florida Abuse
Hotline to report that Elizabeth and her sister were not being
properly supervised.

(Id. at ¶¶ 8-9).

Fineberg arrested

(Id. at ¶ 11).

Judah for child neglect.

Brett Edwards, a child protection investigator, was
assigned to the case.
worked

for

the

(Doc. # 73-7 at ¶¶ 2, 5).

Sheriff’s

Child

Protective

Edwards

Investigation

Division (“CPID”), which was established in 1999 for the sole
purpose of performing child protective investigations in
Pinellas County, Florida.

(Doc. # 73-5 at ¶¶ 4-5).

During his interaction with Elizabeth, Edwards did not
observe any injury, illness, or medical condition, although
2

Allali informed Edwards that Elizabeth was lactose intolerant.
(Doc. # 73-7 at ¶ 6; Doc. # 73-8 at 8-9).

After consulting

with the State Attorney’s Office, Edwards removed Elizabeth
and her sister from the home.

(Doc. # 73-7 at ¶ 7).

Edwards

transported the children until emergency shelter care could be
obtained.

(Id.).

The following day, Edwards completed a “Family Support
Request Form,” which, among other things, requested a health
care assessment for Elizabeth.

(Id. at ¶ 9 & Exh. B).

Edwards submitted the form for assignment to a family support
worker.

(Id. at ¶ 10).

Pamela Wilson was Elizabeth’s family support worker.
(Doc. # 73-9 at 5, 8-9).

In order to schedule the health care

assessment, Wilson called Elizabeth’s primary care provider,
but they did not return Wilson’s call.

(Id. at 9).

The next

day, Wilson personally went to the provider’s office and
scheduled a physical for the first appointment available.
Although that appointment was more than 72 hours out, Wilson
understood that this was consistent with practices in her
division.

(Id.).

In particular, Wilson understood that the

appointment only had to be scheduled within 72 hours, not that
the health care assessment had to be completed within 72
hours.

(Id. at 8, 10).

According to Elizabeth’s father, Elizabeth was “a hundred
percent” healthy in January of 2013.
3

(Doc. # 73-10 at 19).

Likewise, Allali was not aware of any medical problems. (Doc.
# 73-13 at 14).

Due to Elizabeth’s lactose intolerance, she

continued to wear diapers at age five.
48).

(Doc. # 73-10 at at

Elizabeth also drooled off and on, but Holder did not

seek treatment for that condition.

(Id. at 20-21).

B. Elizabeth’s placement and death
Elizabeth was placed in the care of Rosemarie Uva, a
state-approved shelter caregiver, either in the late hours of
January 11, 2013, or in the early morning hours of January 12,
2013.

(Doc. # 73-14 at ¶¶ 2, 4).

Uva was not advised of any

medical condition or illness at the time of placement.
at

¶¶

4-5).

Uva

did

observe

that

excessively and spoke with a slight lisp.

Elizabeth

(Id.

drooled

(Id. at ¶ 6).

Both

conditions improved with a change in Elizabeth’s diet. (Id.).
Uva also noticed that Elizabeth wore pull-up diapers and was
initially

reluctant

to

use

the

toilet

on

her

Elizabeth improved every day with fewer accidents.

own,

but

(Id. at

¶ 7). Starting on Monday, January 14, 2013, Elizabeth went to
Uva’s daycare each day, which she seemed to enjoy.
¶ 9).

(Id. at

Elizabeth did not complain of feeling unwell, and her

appetite seemed normal in comparison to Uva’s own children and
other children in the daycare.

(Id. at ¶ 10).

On Wednesday, January 16, 2013, Elizabeth’s fifth day in
shelter care, she had supervised visitation with her father
and grandmother. (Doc. # 73-13 at 36). Holder and Allali did
4

not observe any condition requiring medical attention.
at 37; Doc. # 73-12 at ¶ 39; Doc. # 73-10 at 66).

(Id.

Allali did

notice that Elizabeth was withdrawn, but she attributed that
to Elizabeth not liking where she was staying.
at 40).

(Doc. # 73-13

Elizabeth complained to Holder that the cornrows in

her hair were too tight, and she said, “Daddy, please don’t
make me go back to that house.”
On

Saturday

evening,

(Doc. # 73-10 at 65, 70).

January

18,

2013,

Uva

dropped

Elizabeth off with a babysitter, Crystal Roberts, where she
stayed overnight.

(Doc. # 73-14 at ¶ 11).

Around 4:00 p.m.

the following day, January 19, 2013, Elizabeth was singing
along to the introduction of a television program when she
grabbed her head and started to scream, “It hurts! It hurts!
Make it stop!”

(Doc. # 73-3 at 98).

Roberts thought that

Elizabeth was suffering from a seizure and called 911. (Id.).
Paramedics transported Elizabeth to the hospital, where she
suffered cardiac arrest upon arrival.
12 at 26).

(Id. at 99; Doc. # 73-

Elizabeth was pronounced dead at 4:58 p.m.

(Doc.

# 73-12 at 26).
On January 20, 2013, the Pinellas County Medical Examiner
performed an autopsy. (Doc. # 73-12 at ¶ 47 & Exh. C).

The

Autopsy Report listed the “Cause of Death” as endomyocardial
fibrosis, and the “Contributory Condition” as tonsillitis.
(Doc. # 73-12 at 12).

5

Holder’s expert, Edward Willey, M.D., testified that it
was more likely than not that Elizabeth’s cause of death was
acute hypoxia, an exacerbation of chronic hypoxia due to
chronic

and

acute

airway

obstruction

associated

adenotonsillar lymphoid hyperplasia and asthma.1

with

(Doc. # 73-

15 at 56). Willey opined that, had Elizabeth seen a competent
medical practitioner, even the most perfunctory examination
would have disclosed her condition.

(Id. at 58-59).

C. The Sheriff’s investigation
Sergeant Scott Matthews was assigned to investigate any
policy violations involved in Elizabeth’s case. (Doc. # 74-2
at 5-6).

At the time of Elizabeth’s placement in emergency

shelter care, the Florida Administrative Code provided: “An
initial health care assessment by a licensed health care
professional

will

be

completed

care

within

for

every

seventy-two

child

emergency

shelter

(72)

removal.”

Fla. Admin. Code. § 65C-29.008 (2012).

entering
hours

of

Consistent

with that mandate, the Sheriff’s standard operating procedure
stated:
Children who have been placed in licensed shelter
must have a medical screening within 72 hours of

1

By separate motion, the Sheriff seeks to exclude
Willey’s testimony pursuant to Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579 (1993).
(Doc. # 67).
Because Willey’s testimony is not material to the issues
currently before the Court, it is included for background
purposes only.
6

removal from home. This screening is to detect any
injury, illness, communicable diseases or need for
immunization (this does not replace the examination
for injury by CPT). CPID has agreed to be
responsible for seeing this medical screening is
completed for children who are placed in licensed
shelter care.
(Doc. # 73-3 at 181).
Sergeant Matthews determined that the Sheriff’s standard
operating procedure was inconsistent with an Interagency
Working Agreement between the Sheriff and Eckerd Community
Alternatives, Inc. (“Eckerd”). (Doc. # 74-2 at 10-11).

As

discussed in more detail below, Eckerd provides foster care
and

related

services

in

Pinellas

County.

The

Working

Agreement between the two entities required the Sheriff to
“initiate” the health care assessment within 72 hours of
removal, and it also made performance of the assessments
contingent on funding.

(Doc. # 73-3 at 201).

Sergeant

Matthews ultimately concluded that the Sheriff’s standard
operating procedure was not being followed as written.

(Doc.

# 74-2 at 13).
According to Captain Timothy Pupke, the Sheriff took 674
children into custody in 2012, the year before Elizabeth’s
death.

(Doc. # 73-4 at 5, 10).

Of those children, 230

children were placed in emergency shelter care.

(Id. at 10).

The Sheriff could not determine whether 97 of the 230 children
had, or had not, received a health care assessment.
11).

(Id. at

The Sheriff had information for only 133 children.
7

The

Sheriff maintains that eight of those children did not meet
the requirement for a health care assessment because they
involved transfers between counties or previously opened
cases.

(Id.)

Of the remaining 125 children, 75 children

received the health care assessment in 72 hours and 50
children did not receive a timely health care assessment.
(Id. at 7).
Before Elizabeth’s death, the Sheriff was not aware that
the health care assessments were not being timely performed.
(Doc. # 73-2 at 21).

The Sheriff testified that “we had

plenty of money, the funding was there for it, it was never an
issue.”2

(Id.).

After Elizabeth’s death, the Sheriff made

sure that “one hundred percent” of children received an
assessment within 72 hours, directing his staff to use urgent
care centers or walk-in clinics if necessary.

(Id. at 21-22,

41).
Captain Pupke avers that no children, including the 50
children removed in 2012 who did not receive a timely health
care assessment, are known to have died, been injured, or
suffered illness or pain as a result of not having a timely
assessment.

(Doc. # 73-5 at ¶ 8).

2

Holder asserts that, in 2007, an administrator in the
Sheriff’s Office sent a department-wide email stating: “Until
further notice, we will not be taking children for their
health screenings. CPT is stating that they can no longer
afford to do them.” (Doc. # 74-3 at 7, 21, 51).
8

II.

Legal Standard
Summary judgment is appropriate “if the movant shows that

there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Civ. P. 56(a).

Fed. R.

A factual dispute alone is not enough to

defeat a properly pled motion for summary judgment; only the
existence of a genuine issue of material fact will preclude a
grant of summary judgment.

Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 247–48 (1986).
An issue is genuine if the evidence is such that a
reasonable jury could return a verdict for the nonmoving
party.

Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742

(11th Cir. 1996) (citing Hairston v. Gainesville Sun Publ’g
Co., 9 F.3d 913, 918 (11th Cir. 1993)).

A fact is material if

it may affect the outcome of the suit under the governing law.
Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir.
1997).

The moving party bears the initial burden of showing

the court, by reference to materials on file, that there are
no genuine issues of material fact that should be decided at
trial. Hickson Corp. v. N. Crossarm Co., Inc., 357 F.3d 1256,
1260 (11th Cir. 2004) (citing Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986)).

“When a moving party has discharged

its burden, the non-moving party must then ‘go beyond the
pleadings,’ and by its own affidavits, or by ‘depositions,

9

answers to interrogatories, and admissions on file,’ designate
specific facts showing that there is a genuine issue for
trial.”

Jeffery v. Sarasota White Sox, Inc., 64 F.3d 590,

593–94 (11th Cir. 1995) (citing Celotex, 477 U.S. at 324).
If there is a conflict between the parties’ allegations
or evidence, the non-moving party’s evidence is presumed to be
true and all reasonable inferences must be drawn in the
non-moving party’s favor.

Shotz v. City of Plantation, 344

F.3d 1161, 1164 (11th Cir. 2003). If a reasonable fact finder
evaluating the evidence could draw more than one inference
from the facts, and if that inference introduces a genuine
issue of material fact, the court should not grant summary
judgment.

Samples ex rel. Samples v. City of Atlanta, 846

F.2d 1328, 1330 (11th Cir. 1988) (citing Augusta Iron & Steel
Works, Inc. v. Emp’rs Ins. of Wausau, 835 F.2d 855, 856 (11th
Cir. 1988)).
of

nothing

However, if the non-movant’s response consists
“more

allegations,”
required.

than

summary

a

repetition

judgment

is

of

not

his
only

conclusional
proper,

but

Morris v. Ross, 663 F.2d 1032, 1034 (11th Cir.

1981).
III. Analysis
In the Second Amended Complaint, Holder asserts the
following claims: a claim pursuant to 42 U.S.C. § 1983 for
violation of Elizabeth’s substantive due process rights (Count

10

I), a claim pursuant to 42 U.S.C. § 1983 for violation of
Elizabeth’s procedural due process rights (Count II), and a
claim pursuant to Florida’s Wrongful Death Act, Fla. Stat.
§§ 768.16, et seq. (Count III).

(Doc. # 32).

In the instant

Motion, the Sheriff argues that he is entitled to Eleventh
Amendment immunity from suit in federal court.
23-24).

(Doc. # 73 at

Alternatively, the Sheriff requests summary judgment

on each of Holder’s claims.

(Id. at 12-23, 25-26).

For the reasons set forth below, the Court finds that the
Sheriff has not demonstrated that he was acting as an “arm of
the state” as required to claim Eleventh Amendment immunity.
However, the Sheriff is entitled to summary judgment in his
favor on Holder’s Section 1983 claims.

With the federal

claims resolved, the Court declines to exercise supplemental
jurisdiction over Holder’s remaining state-law claim.
A. Eleventh Amendment immunity
Absent a waiver or a valid Congressional override, the
Eleventh Amendment bars damages suits against a state in
federal court. 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 Cty. Sch. Dist., 771 F.3d 764, 768 (11th
Cir. 2014) (internal quotation marks omitted).

11

The immunity

does

not

apply

“to

counties,

municipal

corporations,

similar political subdivisions of the state.”

or

Id.

The Sheriff recognizes that 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 Cty. Bd. of Cty. Comm’rs,

405 F.3d 1298, 1304 (11th Cir. 2005).

In this case, however,

the Sheriff argues that he was performing child protective
investigative functions that are typically performed by the
Department of Children and Families (DCF).

As a result, the

Sheriff maintains that he is entitled to claim the same
immunity afforded to DCF.

See, e.g., Gamble v. Fla. Dep’t of

Health & Rehab. Servs., 779 F.2d 1509, 1511 (11th Cir. 1986)
(affirming

the

predecessor,

dismissal

the

Rehabilitative

of

Florida

Services,

a

complaint

Department

pursuant

to

against

of

Health

Eleventh

DCF’s
and

Amendment

immunity).
The
authorize

Court
and

first
govern

reviews
the

protective investigations.

the

Sheriff’s

Florida

statutes

performance

of

that
child

The Court next reviews the source

of the Sheriff’s funding, including relevant provisions of the
grant agreement between the Sheriff and DCF.

With that

background, the Court assesses whether the Sheriff was acting
as an “arm of the state” during the events at issue.

12

1.
In

Applicable state law

1998,

“transfer

the

all

Florida

Legislature

responsibility

for

required
child

DCF

to

protective

investigations for Pinellas County, Manatee County, and Pasco
County to the sheriff of that county in which the child abuse,
neglect, or abandonment is alleged to have occurred.”
Stat. § 39.3065(1).

Fla.

During the initial year of the program,

DCF retained “the responsibility for the performance of all
child protective investigations.”

Fla. Stat. § 39.3065(2).

By fiscal year 1999-2000, the Sheriff was required to “assume
the entire responsibility for such services, as provided in
subsection (3),” unless the Legislature acted to block the
transfer.
Under

Id.
subsection

(3),

the

Legislature

required

the

sheriffs 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. § 39.3065(3)(b).
required

each

investigations

person
to

In addition, the Legislature
performing

“complete,

at

a

child

minimum,

protective
the

training

provided to and required of protective investigators employed
by [DCF].”

Id.

Child protective investigations are governed by Part III
of Chapter 39 of the Florida Statutes.

13

See Fla. Stat.

§§ 39.301-39.308.

Section 39.301 specifies that for each

report accepted for investigation, “the department or the
sheriff providing child protective investigative services
under s. 39.3065, shall perform the following child protective
investigation activities to determine child safety.”

Fla.

Stat. § 39.301(9)(a). At the time of Elizabeth’s removal, the
activities listed in Section 39.301(9)(a) included face-toface

interviews,

an

assessment

of

the

residence,

completion of a standardized safety assessment.

Id.

and

Section

39.301 further required DCF’s training program to include
several competencies, and it required DCF to incorporate
specific components into its quality assurance program.

Fla.

Stat. § 39.301(10)-(11).
The procedures for “Taking Children into Custody and
Shelter Hearings” are detailed in Part IV of Chapter 39 of the
Florida Statutes.

Pursuant to Section 39.402, “[a] child may

not be held in a shelter longer than 24 hours unless an order
so directing is entered by the court after a shelter hearing.”
Fla. Stat. § 39.402(8)(a). “In the interval until the shelter
hearing is held, the decision to place the child in a shelter
or release the child from a shelter lies with the protective
investigator.”

Id.

With respect to medical treatment for a child removed
from home, Section 39.407 provides, in relevant part:

14

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.
Such medical
screening shall be performed by a licensed health
care professional and shall be to examine the child
for injury, illness, and communicable diseases and
to determine the need for immunization.
Fla. Stat. § 39.407(1).

It is pursuant to this statutory

authority that the Florida Administrative Code required an
“initial health care assessment by a licensed health care
professional” to be completed within 72 hours for all children
entering emergency shelter care.

Fla. Admin. Code § 65C-

29.008 (2012).3
The Florida Administrative Code does not specify who is
responsible for completing the health care assessment.
id.

See

Florida privatizes foster care and related services

through contracts with “community-based agencies” – in this
case, Eckerd.

Fla. Stat. § 409.1671 (1999).

In practice,

“[t]here is variation across the state in deciding the point
at which the lead agency assumes responsibility for the case
management of a child welfare case, with varying degrees of
cooperation

and

overlap

between

3

[child

protective

On December 31, 2014, Section 65C-29.008 was amended to
require a health care assessment for a child placed with a
relative, non-relative, or in licensed care within five
working days of the removal. If a child “appears to be sick
or in physical discomfort,” an examination is required within
24 hours. Fla. Admin. Code § 65C-29.008 (2015).
15

investigators] and lead agencies.”
S.B. 1666 (Apr. 24, 2014).
and

Eckerd

agreed

that

Florida Staff Analysis,

As discussed below, the Sheriff
the

Sheriff

would

have

primary

responsibility for completing the health care assessments.
2. Funding and grant provisions
The

Sheriff

investigations

receives

through

an

funds

annual

for child protective

appropriation

from

the

Legislature to DCF, which, in turn, awards a grant to the
Sheriff.

Fla. Stat. § 39.3065(c).

During the events at

issue, the Sheriff was operating pursuant to a Grant Agreement
between DCF and the Sheriff, executed on June 29, 2010. (Doc.
# 73-3 at 4, 18). The Grant Agreement provided $10,225,022.00
in funding for the 2012-2013 fiscal year, an amount which
included both state and federal funds.

(Id. at 6, 70).

Pursuant to the Grant Agreement, the Sheriff was required
to “provide child protective investigations for all reports
referred by Florida Abuse Hotline within Pinellas County in
accordance with all applicable federal laws, statute statutes,
and Attachment I.”

(Id. at 7).

Similar to the language in

Fla. Stat. § 39.3065, the Grant Agreement required the Sheriff
to “operate, at a minium, in accordance with performance
standards

and

outcome

measures

investigations

conducted

by

Attachment I.”

the

(Id. at 8).

16

for

child

Grantor

and

protective
outlined

in

The Grant Agreement imposed various financial, reporting,
and technical requirements.
Sheriff

to

maintain

and

For instance, it required the
retain

financial

records,

to

participate in audits, and to return overpayments. (Id. at 89).

It required the Sheriff to notify DCF of significant

injuries to children in the Sheriff’s custody and to indemnify
DCF to the extent permitted by law.

(Id.).

The Sheriff was

required to safeguard information and to comply with civil
rights and other federal statutes.
Grant

Agreement

further

stated

(Id. at 9, 11-12).
that

DCF

and

the

The
state

“maintain substantial control over the performance of this
Grant Agreement through specific requirements of Chapter 39,
F.S.,” and it allowed the Sheriff, to the extent permitted by
law, to “assert any privileges and immunities which are
available as a result of the Grantee performing the state
functions required by Chapter 39, F.S.”
In

other

areas,

the

Grant

(Id. at 13).

Agreement

preserved

the

Sheriff’s traditional autonomy. The Sheriff was authorized to
“develop

specific

policies

and

operating

procedures

to

implement applicable federal laws and state statutes regarding
child

protective

investigations,”

and

could,

at

his

discretion, adopt “all or parts” of DCF’s current procedures.
(Id. at 22).
policies

The Sheriff was directed to use his “own

and

procedures,

17

including

internal

affairs/professional compliance procedures, and be responsible
for the review of complaints against employees.” (Id. at 10).
The Sheriff was permitted, with prior written notice to DCF,
to “subcontract with law enforcement officials or private
agencies to conduct investigations related to neglect reports
only.”

(Id. at 9).

The Grant Agreement left staffing levels

and personnel qualifications to the Sheriff’s discretion, and
it described the Sheriff as “an independent contractor.” (Id.
at 12, 23). Although quarterly and annual expenditure reports
were required, the Grant Agreement did not specify how the
Sheriff would allocate grant funds.

(Id. at 23-24).

The

Sheriff testified that he had “some discretion,” just “not the
discretion
agency.”
For
Agreement

that

I

have

(Doc. # 73-2
children
provided

in

with

everything

else

within

the

at 14).
need

that

of

the

temporary
Sheriff

was

care,

the

Grant

responsible

as

follows:
In reports where it is determined that a child is
in need of temporary substitute care, the Grantee
shall be responsible for the delivery of the child
to the Grantor or [the community-based agency].
After such delivery, the Grantee shall have no
further responsibility for providing transportation
for the child except for transportation directly
related to the conduct of the investigation unless
agreed to in a separate document with the
[community-based agency].
(Doc. # 73-3 at 21-22).

The Grant Agreement required the

Sheriff and the community-based agency to use and revise a
18

”Working Agreement,” which “shall describe procedures for
placement of children taken into custody” and other “joint
operating procedures.”

(Id. at 22).

The Working Agreement between the Sheriff and Eckerd
included

a

section

governing

“Medical

Attention/Health

Screenings,” which provided in relevant part:
Contingent upon the availability of funding, [the
Sheriff] will be responsible for initiating the
initial child health screenings of children
entering licensed care within 72 hours from
removal. If a removal occurs on an open [Eckerd]
case and a screening is needed, the screening will
be the responsibility of the case management
agencies.
When a child is being seen for a CPT
medical exam, the health screening will be
completed at that time.
(Id. at 201).
operating

As discussed above, the Sheriff’s own standard

procedure

confirmed

that

he

“agreed

to

be

responsible for seeing this medical screening is completed for
children who are placed in licensed shelter care.”
181).

(Id. at

By contrast, an earlier version of that procedure

provided

that:

“Community-based

Care

has

primary

responsibility for ensuring this screening is done in Pinellas
County, although [the Sheriff] has assisted in certain cases.”
(Id. at 118).
3. Eleventh Amendment factors
In assessing whether an entity may be considered an “arm
of the state,” the Eleventh Circuit considers four factors:
(1) how state law defines the entity, (2) what degree of
19

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 “must be assessed in

light of the particular function in which the defendant was
engaged” during the events at issue.

Id. at 1308.

The

parties agree that the particular function in this case is the
Sheriff’s failure to submit Elizabeth to a timely health care
assessment.
(a) How state law defines the entity
The

Eleventh

constitution

and

Circuit

case

law

has

held

establish

that

overwhelmingly

Florida law defines sheriffs as county officials.”
405 F.3d at 1306.

“Florida’s
that

Abusaid,

Florida’s constitution labels sheriffs

“county officers,” Florida case law holds that sheriffs are
county officials, sheriffs are elected by the county, and the
office may be abolished by the county.

Id. at 1305-06.

As a

result, the first factor has typically been held to weigh
“heavily against assigning arm of the state status to a
Florida sheriff.”

Id. at 1305; Hufford v. Rodgers, 912 F.2d

1338, 1341 (11th Cir. 1990).
With respect to the particular function at issue in this
case, the relevant provisions of Florida law and the Grant
Agreement do not alter the essentially local and autonomous

20

character of the Sheriff’s office.
a

transfer

of

“all

Section 39.3065 effected

responsibility”

and

the

“entire

responsibility” for child protective investigations to the
Sheriff. Fla. Stat. § 39.3065(1)-(2). Consistent with this
blanket

transfer

of

responsibility,

the

Grant

Agreement

described the Sheriff as “an independent contractor,” it
preserved

the

Sheriff’s

discretion

with

respect

to

his

employees and allocation of funds, and it allowed the Sheriff
to

develop

his

investigations.

own

policies

for

child

protective

See Rosario v. Am. Corrective Counseling

Servs., Inc., 506 F.3d 1039, 1044-45 (11th Cir. 2007) (in
assessing Eleventh Amendment immunity, emphasizing that the
defendant was characterized as an “independent contractor” and
not an agent); cf. Shands Teaching Hosp. & Clinics, Inc. v.
Beech St. Corp., 208 F.3d 1308, 1311 (11th Cir. 2000) (holding
that a private corporation was an agent of the state, in part,
where the state retained final decision-making authority);
Powell v. Dep’t of Human Res. of State of Ga., 918 F. Supp.
1575, 1578-79 (S.D. Ga. 1996) (holding that county-based
child-welfare agencies were entitled to Eleventh Amendment
immunity where they were incorporated to administer child
welfare programs more efficiently).

Notably, that discretion

is statutorily-mandated by Fla. Stat. § 30.53, which provides:
“The

independence

of

the

sheriffs

21

shall

be

preserved

concerning the purchase of supplies and equipment, selection
of personnel, and the hiring, firing, and setting of salaries
of such personnel.”
The Court notes that, in addition to considering how an
entity is defined by state law or by contract, the Eleventh
Circuit has also considered whether a sheriff is wearing a
“state hat” and whether the sheriff’s authority is “derived
from the state.” Manders, 338 F.3d at 1319 & n.35; Pellitteri
v. Prine, 776 F.3d 777, 780 (11th Cir. 2015).

Here, as a

general matter, the Sheriff’s authority to perform child
protective investigations is derived from the Legislature
pursuant to Fla. Stat. § 39.3065. As discussed in more detail
in the next section, however, the Sheriff’s performance of the
particular function at issue – health care assessments –
originates not under Florida law or the Grant Agreement, but
pursuant to the Working Agreement with Eckerd.
Accordingly, while the Sheriff wears a “state hat” in the
sense

that

he

has

taken

over

a

traditionally

state-run

activity, he does so as a local official with the discretion
of an independent contractor.
(explaining

that

”it

is

not

Lightfoot, 771 F.3d at 771
sufficient

that

the

School

District’s powers and duties are derived from state law,”
where the state imbues the entity with a significant measure
of autonomy).

On balance, the Court finds that this factor

weighs against arm-of-the-state status.
22

(b) Degree of state control
The second factor addresses what degree of control the
state retains over the function at issue.
at 1308.

Manders, 338 F.3d

The Sheriff argues that Section 65C-29.008 of the

Florida Administrative Code sets forth the exact manner in
which a health care assessment must be accomplished, and that
“[t]he Sheriff was not permitted any input into the parameters
of scheduling the appointments.”

(Doc. # 73 at 23).

The Court is not persuaded that the regulatory mandate of
65C-29.008, standing alone, is sufficient to demonstrate state
control over the function at issue.

As the Eleventh Circuit

has observed, “[a]lthough state laws of general application
govern Florida sheriffs, their guidance does not necessarily
transform the sheriff’s office into an agency of the state.”
Hufford, 912 F.2d at 1341; see also Lightfoot, 771 F.3d at 773
(“[e]stablishing minimum requirements is not sufficient to
demonstrate

control”);

Manders,

cf.

338

F.3d

at

1321

(explaining that a state law requiring annual training of
sheriffs, specifically, was not a law of general application).
Additionally, neither the Legislature nor DCF imposed an
“obligation”

on

the

Sheriff

to

perform

the

health

care

assessments, and the state did not otherwise maintain “neartotal control over” the health care assessments, in terms of
funding, staffing, or reporting requirements.

23

U.S. ex rel.

Lesinski v. S. Fla. Water Mgmt. Dist., 739 F.3d 598, 604 (11th
Cir. 2014). The health care assessments were not mentioned in
the Grant Agreement, and the assessments are not included
within the statutorily-defined “child protective investigative
activities” under Fla. Stat. § 39.301(9)(a).

Indeed, the

Grant Agreement specifically provided that the Sheriff had no
responsibility for transporting a child in need of temporary
substitute care after delivering the child to Eckerd.

(Doc.

# 73-3 at 21-22).
Moreover, the Grant Agreement effectively allowed Eckerd
and the Sheriff to decide which entity would perform the
health care assessments, by requiring the Sheriff and Eckerd
to agree on “procedures for placement of children taken into
custody” and to develop “joint operating procedures.” (Id. at
22).

As evinced by their Working Agreement, the Sheriff had

agreed to perform the health care assessments at the time of
Elizabeth’s removal. (Id. at 118, 201).
discretion

to

decline

responsibility

But the Sheriff’s
for

that

task

is

illustrated by his previous standard operating procedure,
which left the task to Eckerd.

(Id. at 118).

Based on the foregoing, it does not appear that the state
was attempting to exercise control over the Sheriff for the
particular function at issue. Instead, the state was merely
attempting to ensure that the necessary services would be

24

provided by either the Sheriff or Eckerd at the local level.
See Abusaid, 405 F.3d at 1309. (“In short, the counties retain
substantial discretion in determining which county office or
official

will

actually

be

assigned

these

duties”).

Furthermore, beyond specifying the minimum requirement that a
health care assessment be completed within 72 hours by a
licensed professional, DCF did not exert control over this
function

in

terms

of

funding,

Lightfoot, 771 F.3d at 773.4

staffing,

or

reporting.

The Court therefore finds that

this factor weighs against arm-of-the-state status.
(c) Source of funding
In

Florida,

a

sheriff’s

entirely by county taxes.”

regular

budget

is

“funded

Abusaid, 405 F.3d at 1310.

However, Fla. Stat. § 39.3065 provides that funding for child
protective investigations will be identified in the annual
appropriation made to DCF, which, in turn, awards grants to
the Sheriff.

Fla. Stat. § 39.3065(c).

The Grant Agreement

confirms that “there is no local funding source for child
protective investigations.”

(Doc. # 73-3 at 15).

Holder cites no evidence suggesting that the health care

4

For these same reasons, the Court is not persuaded that
the broad statement in the Grant Agreement that the state
maintains “substantial control over the performance of this
Grant Agreement,” evinces the requisite control over the
particular function at issue. (Doc. # 73-3 at 13).
25

assessments are funded by any means other than through grant
funds.

Although federal funds are part of the grant award,

the fact remains that there is no identified local source of
funding.

(Doc. # 73-3 at 6).

The third factor thus weighs in

favor of arm-of-the-state status.
(d) Liability for a judgment
The final factor addresses “whether the state’s treasury
would be burdened by an adverse verdict.”
at 1312.

Abusaid, 405 F.3d

The Sheriff asserts that “any judgment resulting

from removal would be payable by the money the Legislature
gives to the Sheriff via Grant . . . . Such could not come
from funding received from Sheriff for performance of police
functions.”

(Doc. # 73 at 24).

The Sheriff cites no record

evidence in support of this statement. (Id.).

In his reply

brief, the Sheriff cites his own deposition testimony, but
that testimony only indicates that grant funds are maintained
separately from the Sheriff’s regular budget.
9; Doc. # 73-2 at 5-7).

(Doc. # 75 at

It does not address the controlling

question of whether any damages judgment in this case would be
paid from the state treasury, if Holder prevails.
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

26

treasury.

Abusaid, 405 F.3d at 1312.

Indeed, Florida law

authorizes sheriffs to purchase liability insurance to cover
“claims arising out of the performance of . . . the duties of
his or her deputies or employees.”

Id.; Fla. Stat. § 30.555;

see also Hufford, 912 F.2d at 1342 (noting that sheriff was
insured through monies appropriated by the county commission,
as part of a self-insurance fund).
The Court notes that it is ”presumed in this Circuit that
where an entity’s budget is submitted to state legislature for
approval, the state is responsible for any debts that cannot
be paid out of the entity’s revenues.”
F.2d 1158, 1164 (11th Cir. 1985).

Harden v. Adams, 760
Although the Sheriff

maintains that he is required to submit expenditure reports to
DCF, the Sheriff cites no evidence suggesting that the state
retains

budget

presumption.

approval,

and

he

does

not

invoke

this

(Doc. # 73 at 24 & n.48).

As the party claiming Eleventh Amendment immunity and as
the party moving for summary judgment, it is the Sheriff’s
burden to identify specific record evidence demonstrating that
he is entitled to judgment as a matter of law. Hickson Corp.,
357 F.3d at 1260; Miller v. Advantage Behavioral Health Sys.,
No. 3:14-CV-45, 2015 WL 6964293, at *2 (M.D. Ga. Nov. 10,
2015).

Rather than discharging his initial burden, the

Sheriff improperly attempts to shift the burden to Holder.

27

(Doc. # 75 at 9).

The Court finds that the fourth factor

weighs against arm-of-the-state status.
4. Balancing the factors
The majority of the relevant factors weigh against armof-the-state status.

In the final calculus, the Court is

mindful that the fourth factor was historically the “most
salient factor” in the Eleventh Amendment analysis because the
impetus for the Eleventh Amendment was “the prevention of
federal-court judgments that must be paid out of a State’s
treasury.”

Hess v. Port Auth. Trans-Hudson Corp., 513 U.S.

30, 48 (1994); Abusaid, 405 F.3d at 1312.

Yet, more recent

Supreme Court cases instruct that “the primary function of
sovereign immunity is not to protect state treasuries, . . .
but to afford the States the dignity and respect due sovereign
entities.”

Fed. Mar. Comm’n v. S.C. State Ports Auth., 535

U.S. 743, 769 (2002); Va. Office for Prot. & Advocacy v.
Stewart, 563 U.S. 247, 267 (2011).
On the current record, it does not appear that either
concern is jeopardized by denying the Sheriff arm-of-the-state
status. The Sheriff comes forward with no evidence suggesting
that a judgment would be paid out of the state treasury. And,
as explained above, the Legislature left intact the Sheriff’s
local autonomy when it shifted “the entire responsibility” for
child protective investigations in Pinellas County to the

28

Sheriff.
blanket

Fla. Stat. § 39.3065(1).
transfer

of

responsibility,

As a result of that
it

is

the

Sheriff’s

dignity – not that of DCF or the state – that is threatened by
a lawsuit in federal court.

The Court therefore concludes

that the Sheriff is not an “arm of the state” for the
particular function at issue, and he is not entitled to
Eleventh Amendment immunity.
Accordingly, the Court denies the Sheriff’s Motion for
Summary

Judgment

to

the

extent

that

the

Sheriff

claims

Eleventh Amendment immunity.
B. Section 1983 claims
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 County, 139 F.3d 865, 872 (11th Cir.
1998).

To prevail on a claim 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.; Butler v. Sheriff of Palm Beach Cty., 685 F.3d

1261, 1265-66 (11th Cir. 2012) (“A defendant acts under color
of state law when she deprives the plaintiff of a right
through the exercise of authority that she has by virtue of
her government office or position.”).
29

1. Substantive due process
“The substantive component of the Due Process Clause
protects those rights that are ‘fundamental,’ that is, rights
that are ‘implicit in the concept of ordered liberty.’”
McKinney v. Pate, 20 F.3d 1550, 1556 (11th Cir. 1994) (quoting
Palko v. Connecticut, 302 U.S. 319, 325 (1937)).

“A finding

that a right merits substantive due process protection means
that the right is protected against certain government actions
regardless of the fairness of the procedures used to implement
them.” Id. (internal quotation marks omitted). In Count I of
the Second Amended Complaint, Holder alleges that the Sheriff
failed to provide Elizabeth with a prompt medical assessment,
depriving her of the fundamental right to physical safety.
(Doc. # 32 at ¶¶ 37-38).
The Eleventh Circuit has determined that a foster child
has “a constitutional right to be free from unnecessary pain
and a fundamental right to physical safety.”
370 F.3d 1079, 1082 (11th Cir. 2004).

Ray v. Foltz,

However, only when an

official is “deliberately indifferent to the welfare of the
child will liability be imposed.”

Id. at 1983.

Deliberate

indifference requires more than negligence; it requires that
the official disregard a risk of harm of which he is actually
aware.

Id.

Because Holder sues the Sheriff in his official capacity,
which is the functional equivalent of a suit against Pinellas
30

County, Holder must demonstrate that the municipality, itself,
was the “moving force” behind any constitutional violation.
See Vineyard v. County of Murray, 990 F.2d 1207, 1210 n.3
(11th Cir. 1993); City of Canton v. Harris, 489 U.S. 378, 389
(1989) (internal quotation marks omitted). Municipal liablity
may be predicated on an unlawful “custom,” which is “a
persistent and widespread practice” with the force of law.
Goebert v. Lee County, 510 F.3d 1312, 1332 (11th Cir. 2007)
(internal quotation marks omitted).

Holder asserts that such

an unlawful custom exists in this case because the Sheriff had
a widespread practice of failing to provide prompt health care
assessments.
Even

(Doc. # 32 at ¶¶ 32-34).

assuming

constitutional
disputes

–

that

violation

Holder

has

Elizabeth,
–

not

which
come

herself,

the

Sheriff

forward

with

suffered

a

vehemently
sufficient

evidence to establish a basis for municipal liability.

The

record demonstrates that the Sheriff failed to obtain a timely
health care assessment for 50 children placed in emergency
shelter care in 2012.

(Doc. # 73-4 at 7).

That failure,

standing alone, does not provide a basis for holding the
Sheriff liable because “failure to follow procedures does not,
by itself, rise to the level of deliberate indifference.”
Taylor v. Adams, 221 F.3d 1254, 1259 (11th Cir. 2000). Holder
identifies

no

additional

evidence

that

would

support

an

inference that the Sheriff’s failure to submit children to a
31

prompt health care assessment negatively affected another
child’s medical condition or otherwise violated a child’s
fundamental right to physical safety.

See McDowell v. Brown,

392 F.3d 1283, 1290 (11th Cir. 2004) (observing that the
plaintiff could not “point to another occasion when the Jail's
understaffing,

and

resulting

inability

to

transport,

contributed to or exacerbated an inmate's medical condition”);
Craig v. Floyd County, 643 F.3d 1306, 1312 (11th Cir. 2011)
(“that evidence tells us nothing about whether an alleged
policy or custom of Georgia Correctional has led to more than
one alleged constitutional violation”).
To the contrary, Captain Pupke avers that no child,
including the 50 children removed from custody who did not
receive an assessment within 72 hours, are known to have died,
been injured, or suffered illness or pain as a result of not
receiving

a

timely

assessment.

(Doc.

#

73-5

at

¶

8).

Additionally, after Elizabeth’s death, the Sheriff maintains
that he took corrective action by ensuring that one hundred
percent of children received a health care assessment within
72 hours of removal.

(Doc. # 73-2 at 21-22, 41); see West v.

Tillman, 496 F.3d 1321, 1330 (11th Cir. 2007) (explaining that
the

supervisory

indifference

defendants

because

they

did

not

attempted

measures).

32

exhibit
to

take

deliberate
corrective

Based on the foregoing, Holder fails to demonstrate any
colorable

basis

for

holding

the

substantive due process claim.

Sheriff

liable

on

the

The Sheriff’s Motion for

Summary Judgment is therefore granted on Count I of the Second
Amended Complaint.
2. Procedural due process
In Count II, Holder alleges that the Sheriff deprived
Elizabeth of her right under state law to a prompt health care
assessment.

(Doc. # 32 at ¶¶ 47-51, 54).

A plaintiff

asserting a violation of the procedural component of the Due
Process Clause must demonstrate: (1) a deprivation of a
constitutionally-protected liberty or property interest, (2)
state action, and (3) constitutionally-inadequate process.
Cryder v. Oxendine, 24 F.3d 175, 177 (11th Cir. 1994).

In

contrast to 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).
For the purposes of the instant Motion, the Sheriff
assumes that the failure to provide Elizabeth with a health
care assessment amounted to a deprivation of a protected
property or liberty interest.
F.2d at 799.

(Doc. # 73 at 21); Taylor, 818

The Sheriff instead argues that Holder has

failed to establish constitutionally-inadequate process. (Id.

33

at 21-23).

The Court agrees.

“[P]rocedural

due

process

violations

do

not

become

complete unless and until the state refuses to provide due
process.” McKinney, 20 F.3d at 1562 (internal quotation marks
omitted).

In Parratt v. Taylor and Hudson v. Palmer, the

Supreme Court clarified that the state is not always required
to provide pre-deprivation process.

Nat’l Ass’n of Bds. of

Pharmacy v. Bd. of Regents of the Univ. Sys. of Ga., 633 F.3d
1297, 1317 (11th Cir. 2011) (citing Parratt v. Taylor, 451
U.S. 527 (1981) and Hudson v. Palmer, 468 U.S. 517 (1984)).
Under the Parratt-Hudson doctrine, pre-deprivation process is
not required when the challenged deprivation “is occasioned by
a random, unauthorized act by a state employee, rather than by
an established state procedure.”

Nat’l Ass’n of Bds. of

Pharmacy, 633 F.3d at 1317 (internal quotation marks omitted).
In such a case, “the State cannot predict precisely when
the loss will occur” and it is therefore “difficult to
conceive of how the State could provide a meaningful hearing
before the deprivation takes place.”
541.

Parratt, 451 U.S. at

Under these circumstances, the state is not required to

provide

pre-deprivation

deprivation remedy exists.

process

if

an

adequate

post-

Nat’l Ass’n of Bds. of Pharmacy,

633 F.3d at 1317. A common-law tort lawsuit may constitute an
adequate post-deprivation remedy. Zinermon v. Burch, 494 U.S.

34

113, 128-29 (1990) (“Parratt and Hudson represent a special
case of the general Mathews v. Eldridge analysis, in which
postdeprivation tort remedies are all the process that is due,
simply because they are the only remedies the State could be
expected to provide”).
The

instant

case

falls

within

the

Parratt-Hudson

doctrine. Holder alleges that “the only due process available
to [Elizabeth] to protect her health and safety was the right
to be medically assessed by a licensed health care provider
within 72 hours of removal.”

(Doc. # 32 at ¶ 56).

It is

undisputed that the Sheriff had a standard operating procedure
requiring such an assessment.

(Id. at ¶ 51).

Similar to

Parratt, Holder alleges that Elizabeth was deprived of her
right to that assessment by the unauthorized actions of the
Sheriff’s employees.5

(Id. at ¶¶ 52-54).

Invoking the Parratt-Hudson line of cases, the Sheriff
maintains that an adequate post-deprivation remedy exists: a
tort lawsuit for damages. (Doc. # 73 at 22-23). In response,
Holder identifies no feasible pre-deprivation procedure, and

5

Although the Sheriff failed to perform the health care
assessment in a substantial number of cases, that fact does
not preclude a finding that the employees’ acts were random
and unauthorized. See Carcamo v. Miami-Dade County, 375 F.3d
1104, 1106 & n.4 (11th Cir. 2004) (explaining that under the
doctrine,
“the
acceptability
of
Parratt-Hudson
post-deprivation process turns on the feasibility of
pre-deprivation process, not the existence of a policy or
practice”).
35

he fails to meaningfully explain how a state-law tort remedy
would be an inadequate post-deprivation remedy.6
Holder does argue that “[a]ny process to remedy the
deprivation of Elizabeth’s denial of medical care would be
futile since she would have been already deceased.”
# 74 at 11).

(Doc.

Holder cites no supporting legal authority, and

the Eleventh Circuit has previously held that a tort remedy
provides adequate post-deprivation process in wrongful death
cases.

E.g., Gilmere v. City of Atlanta, 737 F.2d 894, 908

(11th Cir. 1984) (holding that a survival action provided an
adequate post-deprivation remedy), on rehearing en banc, 774
F.2d 1495 (11th Cir. 1985); Owens v. City of Atlanta, 780 F.2d
1564, 1567 (11th Cir. 1986) (holding that the plaintiff had
not shown that remedies available under Florida law for
negligence were inadequate to address a detainee’s death while
in custody); Powell v. Ga. Dep’t of Human Res., 114 F.3d 1074,
1082 & n.11 (11th Cir. 1997) (noting that a tort lawsuit to
recover for a child’s death was an adequate post-deprivation
remedy even if the state had sovereign immunity).
The Court does not suggest that any eventual award of

6

The bulk of Holder’s argument is a verbatim statement
of his response in opposition to the Sheriff’s most recent
Motion to Dismiss (Doc. # 35). (See Doc. # 74 at 12-20; Doc.
# 39 at 12-21). As a result, Holder’s response is largely
devoted to arguing that Elizabeth possessed a protected
property or liberty interest, which the Sheriff does not
currently dispute.
36

damages in a tort lawsuit could provide full compensation for
the loss of Elizabeth’s life. However, in order to prevail on
a procedural due process claim, Holder must demonstrate that
Elizabeth was afforded constitutionally-inadequate process.
Holder fails to make such a showing. The Sheriff’s Motion for
Summary Judgment is therefore granted on Count II of the
Second Amended Complaint. Tinney v. Shores, 77 F.3d 378, 382
(11th Cir. 1996).
C. Wrongful Death
Holder’s final claim is brought pursuant to Florida’s
Wrongful Death Act, Fla. Stat. §§ 768.19, et seq.

For the

reasons explained above, the Sheriff is entitled to summary
judgment on Holder’s federal claims.

Pursuant to 28 U.S.C.

§ 1367(c)(3), the Court declines to exercise supplemental
jurisdiction over this remaining state-law claim.

Resolution

of the wrongful-death claim will require determinations of
state law, and “[s]tate courts, not federal courts, should be
the final arbiters of state law.” Baggett v. First Nat’l Bank
of Gainesville, 117 F.3d 1342, 1353 (11th Cir. 1997); Raney v.
Allstate Ins. Co., 370 F.3d 1086, 1089 (11th Cir. 2004) (“We
have encouraged district courts to dismiss any remaining state
claims when, as here, the federal claims have been dismissed
prior to trial.”).

The Court finds that principles of

judicial economy, fairness, convenience, and comity weigh in

37

favor of having Holder’s wrongful-death claim decided by a
state court.

Baggett, 117 F.3d at 1353.

Accordingly, Count III of the Second Amended Complaint
will be dismissed without prejudice.

Pursuant to 28 U.S.C.

§ 1367(d), the statute of limitations is tolled “for a period
of 30 days after it is dismissed unless State law provides for
a longer tolling period.”
IV.

Conclusion
It is now ORDERED, ADJUDGED, and DECREED:
(1) Defendant’s Motion for Summary Judgment (Doc. # 73)

is GRANTED IN PART as to Counts I and II of the Second Amended
Complaint (Doc. # 32).
(2)

The

Court

The Motion is otherwise DENIED.
declines

to

exercise

supplemental

jurisdiction over Count III of the Second Amended Complaint,
and that claim is therefore DISMISSED WITHOUT PREJUDICE.
statute

of

limitations

is

tolled

pursuant

to

28

The

U.S.C.

§ 1367(d).
(3)

The Clerk is directed to enter judgment in favor of

Defendant as to Counts I and II, terminate any pending
motions, and to CLOSE this case.
DONE and ORDERED in Chambers in Tampa, Florida, this 29th
day of April, 2016.

38