T W et al v. DUDEK et al

Filing 20

ORDER DISMISSING THE CLAIMS AGAINST THE DEFENDANT DUDEK - GRANTED 4 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM AND INCORPORATED MEMORANDUM OF LAW filed by ELIZABETH DUDEK. I do not direct the entry of judgment underFederal Rule of Civil Procedure 54(b). Signed by JUDGE ROBERT L HINKLE on 1/13/2014. (dlt)

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IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
TALLAHASSEE DIVISION

T.W., P.M., and DISABILITY
RIGHTS OF FLORIDA, etc.,
Plaintiffs,
v.

CASE NO. 4:13cv457-RH/CAS

ESTHER JACOBO, etc., et al.,
Defendants.
___________________________________/

ORDER DISMISSING THE CLAIMS
AGAINST THE DEFENDANT DUDEK

The plaintiffs seek to represent a class of individual with psychiatric
disabilities who are confined in three state hospitals but could receive care in the
community. The plaintiffs say this violates the Americans with Disabilities Act as
interpreted in Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581 (1999). See also
Radaszewski ex rel. Radaszewski v. Maram, 383 F.3d 599 (7th Cir. 2004); Fisher
v. Okla. Health Care Auth., 335 F.3d 1175 (10th Cir. 2003).
Two of the hospitals are operated by, and the third is operated under contract
with, the Florida Department of Children and Families (“DCF”). The hospitals,

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like all hospitals in Florida, are licensed by the Florida Agency for Health Care
Administration (“AHCA”).
The plaintiffs have named as defendants Esther Jacobo, in her official
capacity as Interim Secretary of DCF, and Elizabeth Dudek, in her official capacity
as Secretary of AHCA. Ms. Dudek has moved to dismiss. This order grants the
motion.
AHCA does not operate the hospitals. AHCA does license the hospitals, but
it is more than a stretch to assert that AHCA has itself violated the ADA by failing
to pull the licenses or otherwise take action to compel DCF to provide communitybased services to these class members. See, e.g., Noel v. N.Y.C. Taxi & Limousine
Comm’n, 687 F.3d 63, 69-70 (2d Cir. 2012); Reeves v. Queen City Transp., 10 F.
Supp. 2d. 1181, 1186-88 (D. Colo. 1998); Paxton v. W.V. Dep’t of Tax & Revenue,
192 W.Va. 213, 218 (1994). The complaint fails to state an ADA claim against
Ms. Dudek on which relief can be granted.
A centerpiece of the plaintiffs’ claims is that AHCA is violating its duties
under Florida law. AHCA enforces licensing conditions. A “condition of
licensure” is a hospital’s “[a]dherence to patient rights, standards of care, and
examination and placement procedures” under Florida Statutes chapter 394. Fla.
Stat. § 395.003. The plaintiffs say patient rights under chapter 394 include the
right to treatment by the least-restrictive means. See Fla. Stat. § 394.453 (setting

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out legislative intent, including “that the least restrictive means of intervention be
employed based on the individual needs of each person, within the scope of
available services”). But even if state law provided a private right of action based
on a licensing condition, and even if such a cause of action extended to conduct in
conflict with a statement of legislative intent—dubious propositions at best—the
Eleventh Amendment would bar the claim in this court. See, e.g., Pennhurst State
School & Hosp. v. Halderman, 465 U.S. 89, 121 (1984) (holding that the Eleventh
Amendment bars any claim for injunctive relief based on state law against a state
or against a state officer).
One more point deserves mention. It is not at all clear that meaningful relief
could be granted against Ms. Dudek at AHCA. AHCA has no authority to release
a patient from a hospital or to provide benefits to a patient in the community; only
DCF can do so. Ms. Dudek could be ordered to take action against a hospital’s
license, but an order of that kind would make little sense. Courts ordinarily
address a problem directly rather than by enlisting an executive agency as an
interface. Here the court could remedy any violation much more directly simply
by ordering Ms. Jacobo at DCF to take the appropriate action.
In short, even if meaningful relief could be provided against Ms. Dudek,
there would be no reason for it; an order directed to Ms. Jacobo could accomplish
everything that could be accomplished through an order directed to Ms. Dudek.

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This is not quite the same as, but is similar to, the reasoning that led the Eleventh
Circuit to approve the dismissal of redundant claims against official-capacity
defendants in Busby v. City of Orlando, 931 F.2d 764, 776 (11th Cir. 1991)
(approving the dismissal of official-capacity defendants whose presence was
merely redundant to the naming of an institutional defendant). There is no reason
to have two defendants when one will do.
So the claims against Ms. Dudek will be dismissed. It is virtually certain
that, like in Busby, this will make absolutely no substantive difference in the
outcome of the case.
For these reasons,
IT IS ORDERED:
Ms. Dudek’s motion to dismiss, ECF No. 4, is GRANTED. The claims
against Ms. Dudek are dismissed. I do not direct the entry of judgment under
Federal Rule of Civil Procedure 54(b).
SO ORDERED on January 13, 2014.
s/Robert L. Hinkle
United States District Judge

Case No. 4:13cv457-RH/CAS