KELLAR v. FLORIDA DEPARTMENT OF CORRECTIONS et al

Filing 58

ORDER ON MOTIONS TO DISMISS - The motions to dismiss, ECF Nos. 16 , 34 , and 51 , are GRANTED IN PART and DENIED IN PART. All other claims are dismissed. I do not direct the entry of judgment under Federal Rule of Civil Pro cedure 54(b). Mr. Kellar is granted leave to file an amended complaint. The clerk must send to Mr. Kellar, with the service copy of this order, a § 1983 complaint form. The case is remanded to the magistrate judge for further proceedings. Signed by JUDGE ROBERT L HINKLE on 3/22/2015. (tdl)**Complaint forwarded as Instructed**

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

RYAN LYNN KELLAR,
Plaintiff,
v.

CASE NO. 4:14cv84-RH/GRJ

FLORIDA DEPARTMENT OF
CORRECTIONS, et al.,
Defendants.
_____________________________/

ORDER ON MOTIONS TO DISMISS

This is a prisoner civil-rights case. The plaintiff, an inmate in the Florida
Department of Corrections (“DOC”), asserts he needs surgery for a knee injury.
The plaintiff says a DOC doctor has confirmed the need for surgery but that DOC
has refused to provide it. The plaintiff has sued DOC, the Florida Correctional
Medical Authority (“CMA”), and three individuals who, according to the
complaint, had a hand in denying the surgery. The plaintiff claims that the
defendants violated the Eighth Amendment and were negligent. The plaintiff also
asserts other claims.

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The defendants have moved to dismiss on a variety of grounds. The motions
are before the court on the magistrate judge’s report and recommendation, ECF
No. 55. No objections have been filed.
This order upholds the Eighth Amendment claims against the individual
defendants. The order upholds the negligence claim against one of the individual
defendants. The order dismisses the other claims but grants leave to amend in
limited respects.
I. Background
The complaint alleges that the plaintiff Ryan Lynn Kellar suffered a serious
knee injury while a DOC prisoner in 2007. The complaint alleges that DOC
refused to provide appropriate medical care until 2010, when a doctor ordered the
proper tests and concluded that Mr. Keller urgently needed surgery. The complaint
alleges that DOC scheduled the surgery once—on a date cancelled by Mr. Kellar
so that he could attend a previously scheduled meeting with his attorney—and that
DOC has refused to reschedule the surgery.
The complaint names as defendants DOC, CMA, and three individuals
(assistant warden C. L. West Jr., senior administrator R. Wolf, and Dr. L. Carrero),
all of whom, according to the complaint, had a hand in denying the surgery. A
fourth individual has been voluntarily dismissed.

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The complaint includes 14 counts but in substance asserts these claims.
First, in denying the necessary medical care, the defendants violated the Eighth
Amendment, thus allowing Mr. Kellar to recover under 42 U.S.C. § 1983. Second,
Mr. West interfered with Mr. Kellar’s right to pursue his grievance about the denial
of medical care, thus violating the Due Process Clause and again allowing Mr.
Kellar to recover under § 1983. Third, in denying medical care, Dr. Carrero was
grossly negligent, and the other defendants were negligent, thus allowing recovery
under Florida law. Fourth, the defendants conspired to deny Mr. Kellar medical
care, allowing recovery under 42 U.S.C. §§ 1985(3) and 1986 and Florida Statutes
§ 777.04(3).
II. Standards on a Motion To Dismiss for Failure To State a Claim
A district court should grant a motion to dismiss for failure to state a claim
unless “the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). For purposes of a motion to dismiss,
the complaint’s factual allegations, though not its legal conclusions, must be
accepted as true. Id.; see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007).
A motion to dismiss is not the vehicle by which the truth of a plaintiff’s
factual allegations should be judged. Instead, it remains true, after Twombly and

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Iqbal as before, that “federal courts and litigants must rely on summary judgment
and control of discovery to weed out unmeritorious claims sooner rather than
later.” Leatherman v. Tarrant Cnty. Narcotics Intelligence & Coordination Unit,
507 U.S. 163, 168-69 (1993).
III. Eighth Amendment Claims against the State Agencies
Federal claims of the kind asserted by Mr. Kellar may go forward to the
extent allowed by 42 U.S.C. § 1983. That statute provides a claim against any
“person” who deprives the plaintiff of federal rights. But a state or state agency is
not a “person” within the meaning of § 1983. Will v. Mich. Dep’t of State Police,
491 U.S. 58, 64 (1989).
A § 1983 claim can go forward against a city or other political subdivision
when certain criteria are met. See Monell v. Dep’t of Soc. Servs., 436 U.S. 658,
694 (1978). But Will trumps Monell: a § 1983 claim cannot go forward against a
state agency, even when Monell would allow a claim to go forward against a city
or other political subdivision. Mr. Kellar’s § 1983 claims against the defendant
state agencies must be dismissed.
IV. Eighth Amendment Claims against the Individual Defendants
The result is different for Mr. Kellar’s Eighth Amendment claims against the
individual defendants. A correctional official or prison doctor violates the Eighth
Amendment when the person decides, for reasons unrelated to proper medical care,

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not to provide appropriate treatment for a serious medical need. See, e.g., Estelle
v. Gamble, 429 U.S. 97 (1976) (holding that a correctional official violates the
Eighth Amendment when the official is deliberately indifferent to a prisoner’s
serious medical need). Mr. Kellar has sufficiently alleged that each individual
defendant knowingly took part in the denial of appropriate treatment for a serious
medical need. Mr. Kellar may seek relief under § 1983.
The claims for retrospective relief—that is, damages—may go forward
against these defendants in their individual capacities. The claims for prospective
relief—an injunction—may go forward against these defendants in their official
capacities. Mr. Kellar cannot recover damages against these defendants in their
official capacities. See, e.g., Edelman v. Jordan, 415 U.S. 651 (1974) (holding that
the Eleventh Amendment bars retrospective relief under § 1983 that would be
payable from the state treasury).
Qualified immunity applies to damages claims against public employees and
protects “all but the plainly incompetent or those who knowingly violate the law.”
Malley v. Briggs, 475 U.S. 335, 341 (1986). See generally Carroll v. Carman, 135
S. Ct. 348 (2014); Hope v. Pelzer, 536 U.S. 730 (2002); Harlow v. Fitzgerald, 457
U.S. 800 (1982). Thus a public employee may be held individually liable only if
the employee’s conduct violates clearly established law. Here Gamble clearly
established the controlling law long before the events at issue. The individuals

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may or may not have done what Mr. Kellar alleges—but if they did, they violated
clearly established law.
V. Due Process Claims
As properly set out in the report and recommendation, Mr. Kellar has not
alleged facts showing a due-process violation. This order dismisses the dueprocess claim.
VI. Conspiracy Claims
Mr. Kellar also asserts conspiracy claims under 42 U.S.C. §§ 1985(3) and
1986 and Florida Statutes § 777.04(3). The first of these, § 1985(3), provides a
claim against “persons” who conspire to deprive a plaintiff of certain rights.
Similarly, § 1986 provides a claim against a “person” who neglects or refuses to
prevent such a deprivation. Under these statutes, as under § 1983, a state agency is
not a “person.” See, e.g., Small v. Chao, 398 F.3d 894, 898 (7th Cir. 2005).
Florida Statutes § 777.04(3) makes it a separate crime to conspire to commit
a crime. Mr. Kellar has alleged no facts showing that any defendant committed a
crime, and in any event, § 777.04(3) does not create a private right of action. Mr.
Kellar cannot recover under that statute.
Finally, any conspiracy claim against the agencies or individual defendants
also fails for lack of sufficient factual allegations.

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It bears noting, though, that this ruling makes no significant difference. The
§ 1985 and 1986 claims add nothing of substance to the § 1983 claims. The
§ 777.04(3) claim adds nothing of substance to the state-law negligence claims.
This order dismisses these claims.
VII. Negligence Claims against the State Agencies
The State of Florida has waived its sovereign immunity from some but not
all tort claims. See Fla. Stat. § 768.28. Mr. Kellar has adequately pleaded the
substance of state-law negligence claims against DOC. Whether he has adequately
pleaded the substance of a negligence claim against CMA is less clear, but, in light
of the ruling on the notice issue set out below, this makes no difference at this
time.
The negligence claims are not barred by the Eleventh Amendment because
Mr. Kellar filed the case in state court. The agencies removed the case to this court
and, by doing so, waived their Eleventh Amendment immunity. See Lapides v. Bd.
of Regents of Univ. Sys. of Ga., 535 U.S. 613, 616, 624 (2002) (holding that
“removal is a form of voluntary invocation of a federal court’s jurisdiction
sufficient to waive the State’s otherwise valid objection to litigation of a matter
(here of state law) in a federal forum.”).
A condition precedent to a state-law tort claim against a state agency is the
giving of presuit notice under Florida Statutes § 768.28(6). Notice must be given

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both to the affected agency and to the Department of Financial Services. A
plaintiff may file suit on the claim only after (1) DFS or the affected agency has
denied the claim, see § 768.28(6)(a), or (2) six months have passed since the notice
was given, see § 768.28(6)(d). (The period is 90 days for a medical-negligence
claim, but Mr. Kellar’s claims probably are not medical-negligence claims within
the meaning of the statute.)
Mr. Kellar gave notice of his claim nearly three years before he filed this
lawsuit. But as one might expect from a prisoner negotiating a technical statute on
his own, Mr. Kellar apparently missed some of the fine points. Indeed, he
apparently missed even some of the not-so-fine points. The state agencies say this
is fatal to the state-law claims against them.
Mr. Kellar gave notice to DFS on March 3, 2011. The notice explicitly
mentioned CMA as well as “an unknown health care provider and its employees,
Dr. J. Gonzalez, Dr. L. Carrero.” The “unknown health care provider” may have
been DOC, which employed Drs. Gonzalez and Carrero. But the notice did not
explicitly name DOC. Perhaps more importantly, Mr. Kellar did not provide a
copy of that notice directly to CMA or DOC.
Mr. Kellar provided a different notice to DOC on October 24, 2013, and
DOC forwarded that notice to DFS. Mr. Kellar sent a notice directly to DFS on

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November 12, 2013. Mr. Keller filed this lawsuit in state court on December 9,
2013.
This order dismisses the negligence claims against DOC and CMA but
grants leave to amend. Mr. Kellar apparently still has not had the surgery he says
he needs, so the deadline for giving notice has not passed. At this point, more than
six months have passed since Mr. Kellar gave notice to DFS and DOC. Mr. Kellar
thus may amend at this time to reassert these same claims against DOC. Cf. Motor
v. Citrus Cnty. School Bd., 856 So. 2d. 1054 (Fla. 5th DCA 2003) (affirming a
judgment for the defendant based on the plaintiffs’ failure to give notice but
emphasizing that the judgment was proper because the deadline for giving notice
had passed, thus suggesting that the lawsuit could have continued had the plaintiffs
been able to cure the error). Or Mr. Kellar may file a new lawsuit against DOC,
and it can be consolidated with this case.
Mr. Kellar may give explicit notice to CMA now and amend or file a new
lawsuit in six months. But before Mr. Kellar reasserts his claims against CMA, he
should carefully research Florida law addressing CMA’s role in the provision of
medical care to DOC prisoners. A claim against CMA will survive only if Mr.
Kellar can allege in good faith facts sufficient to overcome CMA’s position, as set
out in the motion to dismiss, that the duty to provide medical care rests only with
DOC, not with CMA.

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The bottom line is this. The state agencies can make this as difficult as they
wish, but sooner or later, DOC, at least, apparently will have to confront Mr.
Kellar’s negligence claims on the merits.
VIII. Negligence Claims against the Individuals
An individual state employee can be held liable for a tort committed within
the scope of employment only if the employee “acted in bad faith or with
malicious purpose or in a manner exhibiting wanton and willful disregard of
human rights, safety, or property.” Fla. Stat. § 768.28(9)(a).
Mr. Kellar has adequately alleged that Dr. Carrero so acted. Indeed, Mr.
Kellar has explicitly alleged that Dr. Carrero was “grossly negligent.” Compl. at
13; ECF No. 3-1 at 16. But Mr. Kellar’s allegations against Mr. West and Mr.
Wolf are different; Mr. Kellar alleges only that they were “negligent.” Compl. at
13-14; ECF No. 3-1 at 16-17. Especially when contrasted with the allegation of
“gross” negligence by Dr. Carrero, the allegations against Mr. West and Mr. Wolf
are insufficient to meet the standard imposed by § 768.28(9)(a).
IX.

Medical Presuit Requirements

Florida law imposes presuit requirements and a two-year limitations period
for medical-negligence claims. See, e.g., Fla. Stat. § 766.106; id. § 95.11(4)(b).
The motions to dismiss do not invoke these requirements. And that makes sense.
Mr. Kellar’s claim is not that the defendants made a medical error, but that, for

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reasons unrelated to medical judgment or performance, the defendants consciously
chose not to provide the needed care.
In Jones v. Campbell, No. 4:12cv458 (N.D. Fla. Dec. 20, 2012), ECF No.
26, I addressed a motion to dismiss a prisoner’s Florida state-law negligence claim
for failing to comply with the medical-negligence presuit requirements:
Both sides agree that the presuit requirements apply to state-law
medical-negligence claims in federal as well as state court and to
those brought by prisoners as well as others. Mr. Jones apparently
concedes that he did not comply with the presuit requirements. He
asserts, though, that the requirements do not apply to his claims,
because the claims are for negligence that does not constitute medical
negligence.
It is clear that a prisoner can assert a negligence claim against a
defendant without complying with the presuit requirements, even
when medical care is involved, so long as the claim does not assert
medical negligence. See, e.g., Harris v. Sheriff, Jefferson Cnty. Fla.,
460 F. App’x 896 (11th Cir. 2012) (per curiam) (upholding a countyjail inmate’s negligence claim against a sheriff for delay in providing
medical care; the plaintiff did not comply with the presuit
requirements, and no issue was made of the failure); Nobles v.
Corrections Corp. of America, No. 4:07cv288, 2008 WL 686962
(N.D. Fla. March 12, 2008) (dismissing a prisoner’s medicalnegligence claim for failing to comply with the presuit requirements
but upholding a claim based on other negligence). In general, a claim
asserts medical negligence if the claim will succeed only on a
showing that the defendant—or a person for whose acts a defendant is
vicariously liable—failed to comply with the standard of care
applicable to a medical professional of the relevant kind. See, e.g.,
Svenningson v. Prison Health Servs., Inc., No.6:07cv1716, 2007 WL
3340453, at *2 (M.D. Fla. Nov. 9, 2007) (holding the presuit
requirements applicable because “the resolution of this case will
require the application of the prevailing professional standard of care
for a healthcare provider”).

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Id. at 4-5. I quoted and applied this same passage in Collins v. Campbell, No.
4:13cv374 (N.D. Fla. Oct. 11, 2013), ECF No. 19; and Garcia v. Corr. Corp. of
Am., No. 4:14cv336 (N.D. Fla. Nov. 10, 2014), ECF No. 19.
X. Conclusion
For these reasons, and based in part on the further explanation and
authorities set out in the report and recommendation,
IT IS ORDERED:
1. The motions to dismiss, ECF Nos. 16, 34, and 51, are GRANTED IN
PART and DENIED IN PART.
2. The claims against the individual defendants under the Eighth
Amendment and § 1983 remain pending.
3. The state-law negligence claims against the defendant Dr. Carrero
remain pending.
4. All other claims are dismissed. I do not direct the entry of judgment
under Federal Rule of Civil Procedure 54(b).
5. Mr. Kellar is granted leave to file an amended complaint. The amended
complaint may include the claims that this order does not dismiss and may include
amended state-law negligence claims. The amended complaint must not include
the other claims dismissed by this order.

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6. The clerk must send to Mr. Kellar, with the service copy of this order, a
§ 1983 complaint form. Any amended complaint must be submitted on the
complaint form. Any amended complaint will completely replace the original
complaint. Any amended complaint thus must include a full statement of all Mr.
Kellar’s remaining claims. Any amended complaint must be clearly labeled as an
amended complaint.
7. The case is remanded to the magistrate judge for further proceedings.
SO ORDERED on March 22, 2015.
s/Robert L. Hinkle
United States District Judge

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