Pichardo de Veloz v. Miami-Dade County et al

Filing 92

ORDER granting in part 75 Motion to Dismiss for Failure to State a Claim. The Second Amended Complaint [ECF No. 40] is DISMISSED.The Clerk is instructed to mark this case as CLOSED. Signed by Judge Cecilia M. Altonaga on 6/8/2017. (ps1)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 16-23925-CIV-ALTONAGA/O’Sullivan
FIOR PICHARDO DE VELOZ and
CESAR CRISTOBAL VELOZ TIBURCIO,
Plaintiffs,
v.
MIAMI-DADE COUNTY, et al.,
Defendants.
_______________________________________/
ORDER
THIS CAUSE came before the Court on Defendants, Miami-Dade County, the Public
Health Trust, Miami-Dade Corrections and Rehabilitation, Daniel Junior, Officer Audrey
Morman, Sergeant Regina Price, Officer Kimberly Jones, Officer Tavarez Carter, Corporal
Travarri Johnson, Carlos A. Migoya, Dr. Fredesvindo Rodriguez-Garcia, and Nurse Fatu Kamara
Harris’s Motion to Dismiss [ECF No. 75] filed February 23, 2017. Plaintiffs, Fior Pichardo de
Veloz and Cesar Cristobal Veloz Tiburcio, filed their Response [ECF No. 83] on March 23,
2017; to which Defendants filed a Reply [ECF No. 91] on April 6, 2017. The Court has
carefully considered the parties’ written submissions, the record, and applicable law.
I. BACKGROUND
Plaintiffs bring this suit seeking damages under 42 U.S.C. section 1983 and on various
state law theories against Defendants for injuries sustained by Fior Pichardo de Veloz1 during her
time in the custody of the Miami-Dade Corrections and Rehabilitation Department (“MDCR”).

1

According to a Miami-Dade Security and Internal Affairs Bureau Memorandum (Mot., Ex. 1, SIAB
Memorandum [ECF No. 75-1] 1), Plaintiff’s correct name is “Flordaliza Pichardo.”

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(See generally Second Amended Complaint [ECF No. 40]). On November 4, 2013, Pichardo
traveled from the Dominican Republic to Miami for a family visit. (See id. ¶ 3). At the time,
Pichardo was 50 years old and undergoing hormone replacement therapy as prescribed by her
doctor to address the symptoms of menopause. (See id. ¶¶ 3 (citation omitted), 21). Pichardo
also suffered from high blood pressure. (See id. ¶ 3 (citation omitted)).
When she arrived at Miami International Airport, Pichardo was arrested on an
outstanding warrant and booked into the Turner Guilford Knight Correctional Center (“TGK”).
(See id. (citations omitted); see also Resp. 2). Upon her arrival at TGK, a non-defendant officer
conducted a strip search of Pichardo at 7:17 p.m., “look[ing] at [the inmate’s] entire body and
mak[ing] sure there [was] nothing inserted up the reproductive area.” (2d. Am. Compl. ¶ 24
(citation omitted; second alteration in original)). Strip searches are directed by corrections
officers although medical staff is often present. (See id. ¶ 32 (citation omitted)). According to
the officer who conducted the search, she “did not notice anything abnormal.” (Id. ¶ 24).
Due to Pichardo’s history of high blood pressure, Defendant Officer Kimberly Jones
escorted her to the medical unit for evaluation later that night. (See id. ¶ 25). Upon arrival at the
medical unit, at approximately midnight on November 5 (see SIAB Mem. ¶ 36), Pichardo was
placed in a cell with other female inmates (see 2d Am. Compl. ¶ 25). Defendant Officer Audrey
Morman was working in the medical unit. (See id.). Prior to seeing or interacting with Pichardo,
Defendant Nurse Harris approached Officer Morman’s desk to question her about Pichardo’s
sex, apparently based on a note in Pichardo’s file regarding hormone replacement therapy. (See
id.; see also Mot., Ex. 3, Statement of Officer Morman2 [ECF No. 75-3] 6:14–7:5). Nurse Harris

2

As the Motion and Response note, the Second Amended Complaint incorporates by reference the SIAB
Memorandum and several witness statements. (See Mot. 4; Resp. 8–9). These documents are properly
considered on a motion to dismiss. See, e.g., Brooks v. Blue Cross and Blue Shield of Fla., Inc., 116 F.3d
1364, 1368–69 (11th Cir. 1997) (“[W]here the plaintiff refers to certain documents in the complaint and

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indicated she believed Pichardo might be male because she was undergoing hormone
replacement therapy. (See Morman Statement 7:2–20). Officer Morman pointed out Pichardo’s
file listed Pichardo as female and explained she believed Pichardo to be female, but Nurse Harris
stated she would nevertheless “check her out.” (Id. 7:25–8:8).
Officer Morman accompanied Nurse Harris to retrieve Pichardo from the cell for her
examination. (See id. 8:23–9:2). Nurse Harris then asked Pichardo if she was female and had
“female parts,” and a visibly offended Pichardo replied she was. (Id. 9:9–16; see also 2d Am.
Compl. ¶ 26).
Nurse Harris escorted Pichardo into the examination room; Officer Morman did not
accompany them. (See 2d Am. Compl. ¶ 27). While in the examination room, Pichardo did not
remove her clothes.

(See id.)

According to the Second Amended Complaint and SIAB

Memorandum, neither Nurse Harris nor the physician on duty, Dr. Fredesvindo RodriguezGarcia, physically examined Pichardo. (See SIAB Mem. ¶¶ 39, 43; see also 2d Am. Compl. ¶¶
31 (citation omitted), 50 (citation omitted)). Only Dr. Rodriguez-Garcia was present while
Pichardo was in the examination room. (See 2d Am. Compl. ¶ 32 (citation omitted); see also
SIAB Mem. ¶ 43).
Following the examination, Nurse Harris told Officer Morman, “everything fell out,” by
which she meant “penis, testicles.” (2d Am. Compl. ¶ 27 (citation, internal quotation marks
omitted); Morman Statement 11:2–8).

Officer Morman explained she believed Pichardo

appeared to be female, but Nurse Harris insisted Pichardo was a male. (See 2d Am. Compl. ¶ 27;
Morman Statement 11:2–8).
those documents are central to the plaintiff’s claim, then the [c]ourt may consider the documents part of
the pleadings for purposes of Rule 12(b)(6) dismissal, and the defendant’s attaching such documents to
the motion . . . will not require conversion of the motion into a motion for summary judgment.”
(alterations added; citation omitted)).

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Officer Morman reviewed Pichardo’s file, confirmed she was strip-searched during
booking, and observed the file did not note any issues regarding Pichardo’s classification as a
female during the strip search. (See 2d Am. Compl. ¶ 28 (citations omitted)). Officer Morman
then called her supervisor, Defendant Sergeant Regina Price, to explain the situation. (See id. ¶
29). Sgt. Price also apparently questioned whether Pichardo was male but nevertheless gave
instructions to have Pichardo taken to an all-male cell. (See id. (citation omitted)).
Upon her return to the examination unit, Officer Jones — the escorting officer — was
informed of the change in the determination of Pichardo’s sex. (See id. ¶ 30 (citation omitted)).
Officer Jones asked Nurse Harris two to three times whether she had strip-searched or physically
checked Pichardo to determine whether Pichardo was a male. (See id. (citation omitted); Mot.,
Ex. 2, Statement of Officer Jones [ECF No. 75-2] 7:15–8:14). Nurse Harris did not verbally
confirm she physically examined Mrs. Pichardo, but finally replied, “she’s a man.” (Jones
Statement 8:2–3, 8:9–17).
Officer Jones, apparently still doubtful of the correctness of Nurse Harris’s statements,
contacted her supervisor, Sgt. Price, for guidance. (See id. 15:17–16:3). Sgt. Price directed
Officer Jones to contact Booking and advise the department of the change in Pichardo’s sex
determination. (See id. 16:5–9). Officer Jones followed Sgt. Price’s orders and notified Booking
of the change. (See 2d Am. Compl. ¶ 35). A Booking officer changed Pichardo’s file without
first reviewing any supporting documentation. (See id.).
Following the change to her file, Pichardo was transferred to Metro West, an all-male
facility. (See id. ¶ 36). She arrived at Metro West at approximately 12:43 p.m. on November 5.
(See SIAB Mem. ¶ 36). She was placed with the general population in Three Alpha Wing. (See
2d Am. Compl. ¶ 37). A female officer, referred to as Officer Jane Doe No. 1, placed Pichardo

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in the cell. (See id. ¶ 38). Officer Doe No. 1 apparently acknowledged Pichardo was female, but
said only “you are a woman. Good luck if you are alive tomorrow.” (Id. (internal quotation
marks omitted)).
After her placement in Three Alpha Wing, Pichardo was surrounded by approximately 40
men and harassed by the male inmates. (See id. ¶ 39). Pichardo later told the investigator she
felt “psychologically assaulted because everyone looked at her as if she was a piñata.” (Id.
(citation, internal quotation marks omitted)).

Pichardo was too afraid to use the all-male

bathroom and instead urinated on herself. (See id. (citation omitted)). At some point, she asked
an unknown female officer to move her out of Three Alpha Wing “because she was going to go
crazy.” (Id. (citation omitted)).
Defendant Officer Tavarez Carter, who was in charge of conducting head counts in Three
Alpha Wing, noted Pichardo looked scared to get off her bunk and did not want to interact with
other inmates. (See id. ¶ 41 (citation omitted)). According to Officer Carter, Pichardo was
assigned to Bunk 2, which is closest to the supervising officers. (See Resp. 6). Officer Carter
told the investigator Pichardo was specifically assigned to Bunk 2 “because whenever there is
someone that looks like a female, we always put [th]em to the front so that the officer can watch
them.” (Id. (alteration added; citation omitted)).
On November 5, 2013, Pichardo’s family members, in their attempts to contact Pichardo,
questioned corrections officers at TGK as to why Pichardo was housed at an all-male facility.
(See SIAB Mem. ¶ 6). As a result of their prodding, a corporal at TGK contacted the Shift
Commander who initiated an investigation into Pichardo’s sex. (See id.). Pichardo was stripsearched a second time, this time by non-party Nurse De La Espriciella in the North Clinic at
Metro West. (See 2d Am. Compl. ¶ 42). This second strip search took place between 6:50 p.m.

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and 8:23 p.m. on November 5. (See SIAB Mem. ¶ 36). Pichardo claims there were several male
corrections officers present, laughing at her during the search. (See 2d Am. Compl. ¶ 42).
Pichardo also recalls photographs were taken of her while she was undressed.

(See id.).

Following this strip search, which confirmed Pichardo’s biological sex to be female, Pichardo
was separated from the general male population. (See id.).
Pichardo was subsequently returned to TGK and housed in an all-female unit. (See SIAB
Mem. ¶ 6). On November 6, 2013, Pichardo was released from MDCR to the custody of the
United States Marshal Service. (See 2d Am. Compl. ¶ 47).
Pichardo and her husband, Cesar Cristobal Veloz Tiburcio, filed their initial Complaint
[ECF No. 1] on September 13, 2016. Plaintiffs have since twice amended the complaint,3 and
the Second Amended Complaint is the current operative pleading.
The Second Amended Complaint contains 15 claims for relief under both state and
federal law, against multiple Defendants. The federal law claims, all brought under 42 U.S.C.
section 1983, include: (1) four counts of failure to intervene (Count I – Sgt. Price, Count II –
Officer Jane Doe No. 1, Count III – Officer Carter, and Count IV – Corporal Johnson); (2) three
counts of deliberate indifference (Count V – Nurse Harris, Count VI – Dr. Rodriguez-Garcia,
and Count VII – Officer Jane Doe No. 1); and (3) one count of violation of privacy rights and
unreasonable searches against Miami-Dade County (Count VIII). To avoid repetition, the Order
addresses the particulars of each of these claims in the Analysis section, section III, below.
The state law claims include: one count of negligence against the corrections officers and
Miami-Dade County (Count IX); one count of negligence against the Public Health Trust (Count
X); one count of negligent infliction of emotional distress against the corrections officers and
3

The deadline for amending pleadings was March 10, 2017. (See Order Setting Trial . . . [ECF No. 58]).
As stated, Defendants filed the present Motion on February 23, 2017.

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Miami-Dade County (Count XI); one count of negligent infliction of emotional distress against
Nurse Harris, Dr. Rodriguez-Garcia, and the Public Health Trust (Count XII); one count of
negligent hiring and retention against the Public Health Trust (Count XIII); one count of
violating Section 901.211, Florida Statutes, against Miami-Dade County (Count XIV); and one
count of loss of consortium brought by Pichardo’s husband against all Defendants (Count XV).
Because the Court concludes dismissal of the federal claims is appropriate, and it will not retain
jurisdiction over the remaining state law claims, this Order does not address the latter claims’
sufficiency.
II. LEGAL STANDARD
“To survive a motion to dismiss [under Rule 12(b)(6)], a complaint must contain
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, 678 (2009) (alteration added) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)).

Although this pleading standard “does not require

‘detailed factual allegations,’ . . . it demands more than an unadorned, the defendant-unlawfullyharmed-me accusation.” Id. (alteration added) (quoting Twombly, 550 U.S. at 555). Pleadings
must contain “more than labels and conclusions, and a formulaic recitation of the elements of a
cause of action will not do.” Twombly, 550 U.S. at 555 (citation omitted). Indeed, “only a
complaint that states a plausible claim for relief survives a motion to dismiss.” Iqbal, 556 U.S. at
679 (citing Twombly, 550 U.S. at 556). To meet this plausibility standard, a plaintiff must
“plead[] factual content that allows the court to draw the reasonable inference that the defendant
is liable for the misconduct alleged.” Id. at 678 (alteration added) (citing Twombly, 550 U.S. at
556).

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Courts apply this standard by (1) eliminating allegations which amount to “mere[] legal
conclusions,” Am. Dental Ass’n v. Cigna Corp., 605 F.3d 1283, 1290 (11th Cir. 2010) (citation
omitted); and (2) assuming the veracity of well-pleaded factual allegations and determining
whether those “plausibly give rise to an entitlement to relief,” id. (internal quotation marks and
citation omitted; alteration added).
Apart from the factual allegations of the Second Amended Complaint, which are
construed in the light most favorable to the plaintiff, see Brooks, 116 F.3d at 1369 (citation
omitted), the Court also properly considers the SIAB Memorandum and witness statements at the
motion to dismiss stage (see note 2, supra). And where the exhibits “contradict the general and
conclusory allegations of the pleading, the exhibits govern.” Crenshaw v. Lister, 556 F.3d 1283,
1292 (11th Cir. 2009) (quoting Griffin Indus., Inc. v. Irvin, 496 F.3d 1189, 1206 (11th Cir. 2007)
(holding, because the police reports attached to the complaint contradicted plaintiff’s allegations
about what the officers saw, the court would “not credit [plaintiff’s] allegation” (alteration
added))). This is because when a plaintiff relies on an attachment to support its allegations,
courts may similarly depend on it to establish the facts. See id. at 1292 (citing Thompson v. Ill.
Dep’t of Prof’l Regulation, 300 F.3d 750, 754 (7th Cir. 2002) (“The fact remains that where a
plaintiff attaches documents and relies upon the documents to form the basis for a claim or part
of a claim, dismissal is appropriate if the document negates the claim.”)).
III. ANALYSIS
The Defendant corrections officers move to dismiss the federal law claims against them
on the grounds they did not violate Pichardo’s clearly established constitutional rights and so are
entitled to qualified immunity. (See Mot. 5–12). Defendants further argue the section 1983
claim against Miami-Dade County should be dismissed because Plaintiffs have failed to properly

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satisfy the Monell4 standard, as is required to bring a section 1983 claim against a local
government entity. (See id. 12–16). Nurse Harris and Dr. Rodriguez-Garcia contend because the
Second Amended Complaint fails to state a claim of deliberate indifference, and there is no
resulting constitutional violation, the medical staff Defendants are also entitled to qualified
immunity. (See id. 16–19).
While not necessary to resolve the sufficiency of the pleading’s federal claims, the Court
notes two additional arguments raised by Defendants. Defendants argue Defendants Carlos
Migoya and Daniel Junior should be dismissed because the Second Amended Complaint does
not contain a single allegation involving them, and Counts II and VII must be dismissed as to the
multiple Doe Defendants under Rule 4(m). (See id. 2 nn.1–2). The Court addresses these
arguments in turn.
A. Claims Subject to the Qualified Immunity Defense
Defendants assert Sgt. Price, Officer Carter, Cpl. Johnson, Nurse Harris, and Dr.
Rodriguez-Garcia are all entitled to qualified immunity. (See id. 8–12, 18–19).
“A complaint is subject to dismissal under Rule 12(b)(6) when its allegations, on their
face, show that an affirmative defense bars recovery on the claim.” Cottone v. Jenne, 326 F.3d
1352, 1357 (11th Cir. 2003) (citing Marsh v. Butler Cty., 268 F.3d 1014, 1022 (11th Cir. 2001)
(en banc). Once a qualified immunity defense has been asserted, unless Plaintiffs’ “allegations
state a claim of violation of clearly established law, a defendant pleading qualified immunity is
entitled to dismissal before the commencement of discovery. Absent such allegations, it is
appropriate for a district court to grant the defense of qualified immunity at the motion to dismiss
stage.” Id. (alterations, ellipses, internal quotation marks, and citations omitted); see also Bloom

4

Monell v. Dep’t of Soc. Servs. of N.Y.C., 436 U.S. 658 (1978).

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v. Alvereze, 498 F. App’x 867, 872 (11th Cir. 2012) (“[A] defense of qualified immunity may be
addressed in a motion to dismiss, which will be granted if the complaint fails to allege the
violation of a clearly established constitutional right.” (internal quotation marks and citation
omitted; alteration added)).
Qualified immunity protects government officials “from liability for civil damages
insofar as their conduct does not violate clearly established statutory or constitutional rights.”
Iqbal, 556 U.S. at 672 (internal quotation marks omitted) (quoting Harlow v. Fitzgerald, 457
U.S. 800, 818 (1982)). It “balances two important interests — the need to hold public officials
accountable when they exercise power irresponsibly and the need to shield officials from
harassment, distraction, and liability when they perform their duties reasonably.” Pearson v.
Callahan, 555 U.S. 223, 231 (2009).

“Qualified immunity offers complete protection for

government officials sued in their individual capacities if their conduct does not violate clearly
established statutory or constitutional rights of which a reasonable person would have known.”
Kingsland v. City of Miami, 382 F.3d 1220, 1231 (11th Cir. 2004) (internal quotation marks and
citation omitted).
To be entitled to the qualified immunity defense, a government official must demonstrate
“he was acting within the scope of his discretionary authority when the allegedly wrongful acts
occurred.” Courson v. McMillian, 939 F.2d 1479, 1487 (11th Cir. 1991) (internal quotation
marks and citation omitted). The parties agree the individual Defendants were acting within the
scope of their discretionary authority (see Mot. 9 n.3 (citation omitted); see also 2d Am. Compl.
¶¶ 19, 65, 80, 138, 152); therefore, the burden “shifts to the plaintiff[s] to show that qualified

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immunity is not appropriate.”5 Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002) (citation
omitted; alteration added).
“To survive a motion to dismiss based upon qualified immunity, the plaintiff must have
alleged sufficient facts to support a finding of a constitutional violation of a clearly established
law.” Chandler v. Sec’y of Fla. Dep’t of Transp., 695 F.3d 1194, 1198–99 (11th Cir. 2012)
(citation omitted). The plaintiffs “bear the burden of showing that the federal rights allegedly
violated were clearly established.” Foy v. Holston, 94 F.3d 1528, 1532 (11th Cir. 1996). This
requires Plaintiffs’ factual allegations, accepted as true, show both (1) Defendants violated a
constitutional right and (2) the constitutional right at issue was “clearly established” at the time
of the violation.6 See Saucier v. Katz, 533 U.S. 194, 201 (2001).
To satisfy the “clearly established” requirement, a law may not be “defined ‘at a high
level of generality,’” and the “clearly established law must be ‘particularized’ to the facts of the
case.” White v. Pauly, 137 S. Ct. 548, 552 (2017) (citations omitted). Although the Supreme
Court “do[es] not require a case directly on point, . . . existing precedent must have placed the

5

This two-step approach is enshrined in the Eleventh Circuit’s Zeigler/Rich analysis which provides:
1. The defendant public official must first prove that “he was acting within the scope of
his discretionary authority when the allegedly wrongful acts occurred.”
2. Once the defendant public official satisfies his burden of moving forward with the
evidence, the burden shifts to the plaintiff to show lack of good faith on the
defendant’s part. This burden is met by proof demonstrating that the defendant
public official’s actions “violated clearly established constitutional law.”

Courson, 939 F.2d at 1487 (quoting Rich v. Dollar, 841 F.2d 1558, 1563–64 (11th Cir. 1988) (discussing
two-part test)); see also Zeigler v. Jackson, 716 F.2d 847, 849 (11th Cir. 1983) (per curiam).
6

Judges need not address these prongs in any particular order. See Pearson, 555 U.S. at 236 (Judges
“should be permitted to exercise their sound discretion in deciding which of the two prongs of the
qualified immunity analysis should be addressed first in light of the circumstances in the particular case at
hand.”).

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statutory or constitutional question beyond debate.” Ashcroft v. al-Kidd, 563 U.S. 731, 741
(2007) (citations omitted; alterations added).
A defendant is entitled to qualified immunity “unless the law preexisting the defendant
official’s supposedly wrongful act was already established to such a high degree that every
objectively reasonable official standing in the defendant’s place would be on notice . . . what the
defendant official was doing would be clearly unlawful given the circumstances.” Pace v.
Capobianco, 283 F.3d 1275, 1282 (11th Cir. 2002) (alteration added). “This exacting standard
‘gives government officials breathing room to make reasonable but mistaken judgments’ by
‘protect[ing]’ all but the plainly incompetent or those who knowingly violate the law.’” Young v.
Borders, 850 F.3d 1274, 1282 (11th Cir. 2017) (alteration in original) (quoting City and Cty. of
San Francisco v. Sheehan, 135 S. Ct. 1765, 1774 (2015)). Furthermore, in this Circuit, only
decisions of the United States Supreme Court, Eleventh Circuit, and highest relevant state court
can clearly establish the law for qualified immunity purposes. See McClish v. Nugent, 483 F.3d
1231, 1237 (11th Cir. 2007) (citing Marsh, 268 F.3d at 1032 n.10).
1. Failure to Intervene Claims (Counts I, III, and IV)
Plaintiffs assert Sgt. Price, Cpl. Johnson, and Officer Carter, all of whom either knew or
suspected Pichardo was female, failed to intervene to prevent Pichardo from being placed in an
all-male cell. This failure to protect her from unsafe conditions of confinement, according to
Plaintiffs, violated Pichardo’s constitutional rights. (See Resp. 9 (“[E]ach of the correction [sic]
officers named failed to intervene in the placement of the Plaintiff in grave danger and were each
in a unique position to do so . . . .” (alterations added))).
With respect to Sgt. Price, the failure to intervene claim in Count I alleges she was
“acting under color of state law . . . when she instructed her subordinates that Mrs. Pichardo,

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although evidently a woman, should be classified as a male.” (2d Am. Compl. ¶ 65 (alteration
added)). Plaintiffs state Sgt. Price had “a duty to provide safe conditions of confinement” and
“to stop other defendant corrections officers from placing Mrs. Pichardo in unnecessarily
dangerous conditions of confinement.” (Id. ¶ 66). Defendant breached that duty by failing to
“provide safe conditions . . . and . . . prevent other defendant corrections officers from placing
Mrs. Pichardo” in such conditions. (Id. ¶ 67 (alterations added)). Plaintiffs further allege Sgt.
Price’s “direct[ing] Mrs. Pichardo to be confined with male inmates” after “Officer Morman told
Sergeant Price that Mrs. Pichardo was female and had already been strip searched by Booking”
demonstrates a “reckless disregard for the known rights of Mrs. Pichardo.” (Id. ¶¶ 68–69
(alteration added)).
As to Officer Carter, Count III alleges he breached his duty “to stop other defendant
corrections officers from placing Mrs. Pichardo in unnecessarily dangerous conditions of
confinement . . . when he failed to prevent her from being placed in” such conditions, after
Pichardo and other inmates told Officer Carter Pichardo was female. (Id. ¶¶ 80–82 (alteration
added)).
Finally, Count IV alleges Cpl. Johnson violated Pichardo’s constitutional rights by failing
to intervene “[d]espite suspecting [Pichardo] might be a woman” and “after talking to [Pichardo]
and noticing her feminine features.” (Id. ¶ 87 (alterations added)). Plaintiffs allege Cpl. Johnson
“owed Mrs. Pichardo a duty to stop other defendant corrections officers from subjecting Mrs.
Pichardo to unnecessarily dangerous conditions of confinement,” but “breached that duty when
he directed Mrs. Pichardo to get to the front of the line and subjected her to unnecessarily
dangerous conditions of confinement.” (Id. ¶¶ 88–89).

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Sgt. Price, Officer Carter, and Cpl. Johnson argue they are entitled to qualified immunity.
Each contends he or she: (1) was “neither in the position nor authorized to question, second
guess, or reverse the determination made by the medical staff,” and (2) “the law at the time of the
incident was not clearly established so as to put the officers on notice that their conduct was
unconstitutional.” (Mot. 5). To this, Plaintiffs insist “[t]here is a well-recognized duty by each
of the individually employed constitutional agents . . . named in the Complaint to have protected
. . . Mrs. Pichardo, a . . . clearly identifiable female, who had been originally booked as a woman,
from being reclassified as a man and placed in the general male population.”

(Resp. 10

(alterations added)).
Plaintiffs, however, fail to cite any case law establishing even an analogous duty, much
less anything to satisfy their very heavy burden of demonstrating the purportedly “wellrecognized” duty is “beyond debate,” as is required by governing law. al-Kidd, 563 U.S. at 741
(citations omitted). Plaintiffs do not provide any decisional law finding an officer liable for
failing to prevent a female inmate’s placement in an all-male housing unit after medical
personnel concluded the inmate was male.

Certainly application of broader constitutional

principles would not have put the corrections officers on notice they were violating Pichardo’s
rights. See White, 137 S. Ct. at 552 (“‘[G]eneral statements of the law are not inherently
incapable of giving fair and clear warning’ to officers . . . but, ‘in the light of pre-existing law the
unlawfulness must be apparent.’” (alterations added; citations omitted)).
This is particularly the case given Eleventh Circuit precedent, which instructs that a
prison official generally “cannot be held liable for a constitutional tort when his administrative
decision was grounded in a decision made by medical personnel.” Acosta v. Watts, 281 F. App’x
906, 908 (11th Cir. 2008) (citation omitted); see also Williams v. Limestone Cty., 198 F. App’x

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893, 897 (11th Cir. 2006) (“[S]upervisory officials are entitled to rely on medical judgments
made by medical professionals responsible for prisoner care.” (alteration added; citations
omitted)). While it appears in some instances a Miami-Dade corrections officer may make an
inmate’s sex determination in the first instance (see, e.g., SIAB Mem. ¶ 34), it is also common
practice for medical staff to make that determination alongside the corrections officer, or to be
called in to make the determination “when in doubt” (id. ¶ 29; see also Morman Statement 12:5–
13:1, 17:25–18:17). The Court cannot conclude Defendants violated any clearly established
constitutional right to intervention in failing to change Pichardo’s sex classification after they
perceived medical personnel had conclusively stated Pichardo was male — nor have Plaintiffs
pointed to any decision of the Supreme Court, Eleventh Circuit, or highest state court that a
failure to do so constitutes a violation of clearly established law.
An independent reason also supports the foregoing conclusion. According to the Second
Amended Complaint, Pichardo’s placement in Metro West resulted in verbal harassment from
other inmates, not physical injury. (See 2d Am. Compl. ¶ 39). The Court “is doubtful that the
Eleventh Circuit recognizes ‘failure to intervene’ claims outside of the context of the . . .
excessive force prohibition.” Whitehurst v. Harris, No. 6:14-cv-01602-LSC, 2015 WL 71780, at
*7 (N.D. Ala. Jan. 6, 2015) (alteration added) (citing Jones v. Cannon, 174 F.3d 1271, 1285–86
(11th Cir. 1999)); see also Tarantino v. Citrus Cty. Gov’t, No. 5:12-cv-434-Oc-32PRL, 2014 WL
4385550, at *9–10 (M.D. Fla. Sept. 2, 2014) (citing cases illustrating same); see also Sampson v.
City of Brunswick, CV 211-013, 2013 WL 12134188, at *8 (S.D. Ga. Mar. 1, 2013) (noting
same).
Admittedly, the Eleventh Circuit does not appear to have expressly foreclosed the
possibility of liability in a non-excessive-force failure to intervene case. See, e.g., Byrd v. Clark,

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783 F.2d 1002, 1007 (11th Cir. 1986) (“If a police officer, whether supervisory or not, fails to or
refuses to intervene when a constitutional violation such as an unprovoked beating takes place in
his presence, the officer is directly liable under Section 1983.” (emphasis added; citations
omitted), abrogated on other grounds as recognized by Nolin v. Isbell, 207 F.3d 1253 (11th Cir.
2000)). Yet it is precisely the lack of authority holding an officer liable for failure to intervene in
the absence of excessive force that demonstrates Plaintiffs’ claimed constitutional violation is not
“clearly established.” Other courts have reached a similar conclusion. See, e.g., Jones v.
Cannon, 174 F.3d 1271, 1286 (11th Cir. 1999) (no claim for failure to intervene to prevent a
false arrest); Rance v. Bradshaw, Case No. 15-cv-81210-KAM, 2016 WL 3199002, at *9 (S.D.
Fla. June 9, 2016) (no liability for failure to intervene to stop an illegal search); Green v. Harris,
No. 6:12-cv-00264-VEH-PWG, 2012 WL 4341812, at *1 (N.D. Ala. Aug. 31, 2012) (no liability
for failure to intervene to prevent inmates from yelling racial slurs at another inmate).
As discussed, Plaintiffs’ burden to demonstrate the Defendant-officers’ duties were
“clearly established” is exceedingly high. They have failed to do so. This is simply “not a case
where it is obvious that there was a violation of clearly established law under” under existing
failure-to-intervene precedent. White, 137 S. Ct. at 552 (alteration added). Rather, “this case
presents a unique set of facts and circumstances” which “alone should [be] an important
indication . . . [Defendants’] conduct did not violate a ‘clearly established’ right.” Id. (internal
citation omitted; alterations added). Therefore, Sgt. Price, Officer Carter, and Cpl. Johnson are
entitled to qualified immunity, barring the claims made in Counts I, III, and IV.
2. Deliberate Indifference (Counts V and VI)
Count V alleges Nurse Harris: (1) “[d]espite knowing the risks . . . wrongly re-classified
[Pichardo] as male based on no physical or record proof” (2d Am. Compl. ¶ 97 (alterations

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added)); (2) “acted with deliberate indifference to the safety of Mrs. Pichardo” (id. ¶ 99); and (3)
“knew or should have known the consequences of wrongfully re-classifying a female as male. A
reasonable nurse in a jail would also comprehend that by [doing so], Mrs. Pichardo would be
exposed to sexual harassment, rape, and even murder.” (id. ¶ 100 (alteration added)).
Count VI alleges Dr. Rodriguez-Garcia: (1) “knew that if Mrs. Pichardo were classified
as male, she would be placed in an all-male facility and her safety and life would be at risk” (id.
¶ 107); (2) “[d]espite knowing the risks . . . failed to physically examine Mrs. Pichardo and
allowed her to be wrongfully re-classified” (id. ¶ 108 (alterations added)); (3) “by failing to
properly examine and assess Mrs. Pichardo, acted with deliberate indifference to the risks” (id.
¶ 110 (alteration added)); and (4) “knew or should have known the consequences of wrongfully
classifying a woman as a man in jail. A reasonable doctor in a jail would also comprehend” the
dangers (id. ¶ 111).
Defendants argue Plaintiffs have not shown Nurse Harris and Dr. Rodriguez-Garcia had
the requisite “subjective intent to punish” Pichardo and, therefore, they do not make out
deliberate indifference claims under the Eighth Amendment.7 (Mot. 17–18 (quoting Bingham v.
Thomas, 654 F.3d 1171, 1176 (11th Cir. 2011))). According to Plaintiffs, “[t]his standard of
purposeful or knowing conduct is not . . . necessary to satisfy the mens rea requirement of
deliberate indifference for claims challenging conditions of confinement.” (Resp. 14 (alterations
added; internal quotation marks omitted) (quoting Farmer v. Brennan, 511 U.S. 825, 836
(1994))). The Court examines the parties’ competing positions.
7

Claims related to conditions of confinement are generally governed by the Eighth Amendment.
Although Pichardo was a pretrial detainee at the time of the described events, and therefore protected
under the Fourteenth Amendment’s Due Process Clause as opposed to the Eighth Amendment’s Cruel
and Unusual Punishment Clause, the authority is identical. See Cottrell v. Caldwell, 85 F.3d 1480, 1490
(11th Cir. 1996) (“[T]he applicable standard is the same, so decisional law involving prison inmates
applies equally to cases involving arrestees or pretrial detainees.” (alteration added; citations omitted)).

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“To state an Eighth Amendment claim . . . a prisoner must allege facts to satisfy both an
objective and subjective inquiry regarding a prison official’s conduct.” Richardson v. Johnson,
598 F.3d 734, 737 (11th Cir. 2010) (alteration added) (citing Chandler v. Crosby, 379 F.3d 1278,
1289 (11th Cir. 2004)). To satisfy the objective component, Plaintiffs “must allege a prison
condition that is so extreme that it poses an unreasonable risk of serious damage to the prisoner’s
health or safety.” Id. The subjective component requires Plaintiffs to “allege that the prison
official, at a minimum, acted with a state of mind that constituted deliberate indifference.” Id.
To successfully state a claim of deliberate indifference, Plaintiffs “must allege that a prison
official (1) had subjective knowledge of a substantial risk of serious harm and (2) disregarded
that risk “by conduct that is more than mere negligence.” Alvarez v. Sec’y, Fla. Dep’t of Corr.,
646 F. App’x 858, 862 (11th Cir. 2016) (internal quotation marks omitted) (quoting Richardson,
598 F.3d at 737). The parties disagree about whether the Second Amended Complaint alleges
the medical professionals acted with a sufficiently culpable state of mind.8
Plaintiffs appear to be pleading the civil law standard for recklessness in contrast to the
criminal law standard, which requires a knowing disregard of risk. See Farmer, 511 U.S. at
836–37 (“The civil law generally calls a person reckless who acts or . . . fails to act in the face of
an unjustifiably high risk of harm that is either known or so obvious that it should be known. . . .
The criminal law, however, generally permits a finding of recklessness only when a person
disregards a risk of harm of which he is aware.” (alterations added; internal citations omitted)).

8

In the Motion, Defendants use case law in the denial of medical care context. (See generally Mot.).
While Nurse Harris and Dr. Rodriguez-Garcia are medical professionals, Plaintiffs do not allege a failure
to address an objectively serious medical need. Instead, they rely on case law discussing deliberate
indifference in the context of conditions of confinement. (See, e.g., Resp. 14 (citing Farmer, 511 U.S. at
836)).

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The Supreme Court in Farmer, a case Plaintiffs themselves rely on, expressly rejected the civil
law approach:
We reject petitioner’s invitation to adopt an objective test for
deliberate indifference. We hold instead a prison official cannot be
found liable under the Eighth Amendment for denying an inmate
humane conditions of confinement unless the official knows of and
disregards an excessive risk to inmate health or safety; the official
must both be aware of facts from which the inference could be
drawn that a substantial risk of harm exists, and he must also draw
the inference. . . . The Eighth Amendment does not outlaw cruel
and unusual “conditions”; it outlaws cruel and unusual
“punishments.”
Id. at 837 (alteration and emphasis added). Ultimately, “an official’s failure to alleviate a
significant risk that he should have perceived but did not, while no cause for commendation,
cannot under our cases be condemned as the infliction of punishment.” Id. at 838.
The facts alleged in the Second Amended Complaint do not satisfy the Farmer standard.
To the contrary, they specifically foreclose a finding of deliberate indifference because the
allegations are that the medical professionals believed Pichardo was male.

For example,

Plaintiffs state “Nurse Harris concluded that Mrs. Pichardo was male” (2d Am. Compl. ¶ 95);
“Nurse Harris concluded that Mrs. Pichardo was a man undergoing gender reassignment” (id. ¶
93); and Dr. Rodriguez-Garcia “concluded that Mrs. Pichardo was a man undergoing gender
reassignment” (id. ¶ 105). Nothing in the pleading suggests Nurse Harris and Dr. RodriguezGarcia realized the inmate, whom they reclassified as a male, was a biological female with a
female reproductive system.

Stated differently, nothing suggests Defendants “drew the

inference” as required by Farmer. Accordingly, Plaintiffs do not state claims of deliberate
indifference.
This result is consistent with case law in this Circuit. For example, the plaintiff in
Williams v. Department of Corrections was an incarcerated person who complained multiple
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times to corrections officers of threats of serious violence by other inmates. See No. 15-14141,
2017 WL 432793, at *1 (11th Cir. Feb. 1, 2017) (per curiam). The plaintiff was placed in
protective management and transferred to another facility, but he was eventually transported
back to the institution housing the inmates who had threatened him. See id. The plaintiff tried to
explain to the corrections officers there was likely a mistake in his housing classification because
he had previously been transferred. See id. The defendant-officers placed one of the aggressors
in the plaintiff’s dormitory, where he eventually attacked plaintiff in his sleep. See id.
The Eleventh Circuit held the plaintiff failed to demonstrate the defendants had acted
with deliberate indifference, even though plaintiff alleged defendants “failed to check his
Department of Corrections[] file before having him returned to [the facility,] . . . failed to provide
a safe classification system at [the] prison[,] [a]nd . . . failed to ensure that the Department of
Corrections classification board was in compliance with safety procedures.” Id. at *4 (alterations
added). The court concluded “[a]ccepting those allegations a[s] true, they may demonstrate [the
defendants] acted negligently, but they do not show that [they] acted with a ‘sufficiently culpable
state of mind’ because [the plaintiff] never alleged that they knew of yet disregarded a risk of
serious harm to him.” Id. (alterations added) (citing Chandler, 379 F.3d at 1289).
“In other words,” the defendants “may have placed [the plaintiff] in danger by failing to
take certain actions related to his transfer, but they did not know that they were potentially
placing him in serious danger.” Id. (alteration added; emphasis in original). The court affirmed
dismissal of the claims, explaining “[b]ecause [the plaintiff] failed to allege facts showing . . .
defendants . . . knew of and disregarded a risk of serious harm . . . by conduct that is more than
negligence, [the plaintiff’s] claims against them fail to state a claim.” Id. (alterations added;
citation omitted).

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In this case, as in Williams, Plaintiffs fail to allege the subjective knowledge required to
state claims of deliberate indifference. Plaintiffs do not plausibly allege Nurse Harris and Dr.
Rodriguez-Garcia actually knew they were placing Pichardo in danger.

Accordingly, as

Plaintiffs do not show Defendants violated a constitutional right, Dr. Rodriguez-Garcia and
Nurse Harris are entitled to qualified immunity.
B. Violation of Privacy Rights & Unreasonable Searches (Count VIII)
In Count VIII, Plaintiffs allege Miami-Dade County “violated Mrs. Pichardo’s right to
privacy by: (a) [c]onducting an unjustified and unnecessary examination of her genitals; (b)
[p]hotographing her genitals; and (c) [f]orcing her to be nude before male corrections officers.”
(2d Am. Compl. ¶ 130 (alterations added)).
Defendants argue this section 1983 claim against the County fails as a matter of law
because Plaintiffs are improperly attempting to hold the County liable on a theory of vicarious
liability, rather than because of a County policy or custom, as required under federal law. (See
Mot. 12). In response, Plaintiffs copy a 2005 newspaper article into their Response, describing a
settlement the County reached with a number of people subjected to improper strip searches.
(See Resp. 15–17 (citation omitted)). Plaintiffs claim this article proves “the County has a long,
well publicized, and well litigated, custom and policy of unlawful strip searches.” (Id. 17).
Plaintiffs’ position fails to persuade.
“[A] municipality cannot be held liable under [section] 1983 on a respondeat superior
theory.” Monell, 436 U.S. at 691. Consequently, “[l]ocal governing bodies . . . can be sued
directly under [section] 1983 for monetary, declaratory, or injunctive relief where . . . the action
that is alleged to be unconstitutional implements or executes a policy statement, ordinance,
regulation, or decision officially adopted and promulgated by that body’s officers.” Id. at 690

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(alterations added; footnote call number omitted). In addition, “local governments . . . may be
sued for constitutional deprivations visited pursuant to governmental ‘custom’ . . . though such a
custom[9] has not received formal approval.” Id. at 690–91 (alterations and footnote call number
added).
To state a Monell claim, a plaintiff must allege facts showing: “‘(1) that his constitutional
rights were violated; (2) that the municipality had a custom or policy that constituted deliberate
indifference to that constitutional right; and (3) that the policy or custom caused the violation.’”
Marantes, 649 F. App’x at 672 (quoting McDowell v. Brown, 392 F.3d 1283, 1289 (11th Cir.
2004)). The alleged custom or policy “must be the ‘moving force’ behind the constitutional
deprivation for there to be sufficient causation.” Id. (quoting Monell, 436 U.S. at 690–94). And
a plaintiff:
(1) must show that the local governmental entity . . . has authority
and responsibility over the governmental function in issue and (2)
must identify those officials who speak with final policymaking
authority for that local governmental entity concerning the act
alleged to have caused the particular constitutional violation in
issue.
Grech v. Clayton Cty., 335 F.3d 1326, 1330 (11th Cir. 2003) (citing Jett v. Dallas Indep. Sch.
Dist., 491 U.S. 701, 737 (1989) (alterations added; additional citations omitted)). Even where a
plaintiff intends to prove the existence of an “unofficial custom or practice of the county,” it
must be “shown through the repeated acts of a final policymaker for the county.”

Id. at 1329

(citing Monell, 436 U.S. at 690–91) (additional citation omitted).

A custom is “a practice that is so settled and permanent that it takes on the force of law.” Marantes v.
Miami-Dade Cty., 649 F. App’x 665, 672 (11th Cir. 2016) (internal quotation marks omitted) (quoting
Sewell v. Town of Lake Hamilton, 117 F.3d 488, 489 (11th Cir. 1997)). This requires a showing of a
“longstanding and widespread practice;” a single incident of a violation is insufficient to demonstrate the
existence of a policy or custom. Id. (internal quotation marks omitted) (quoting Craig v. Floyd Cty., 643
F.3d 1306, 1310 (11th Cir. 2011)).
9

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The Second Amended Complaint does not contain any allegations to support the
existence of an unconstitutional County policy or custom related to illegal strip searches. (See
generally 2d Am. Compl.). Count VIII does not allege Pichardo’s experience was the product of
a widespread practice of illegal strip searches. It does not identify any policymakers with
authority over the entity. The count refers to “Miami-Dade County’s acts and omissions” (id. ¶
133), but not the individuals with final policymaking authority for the County — namely, the
Board of County Commissioners or the Mayor, see Williams v. Miami-Dade Cty., 859 F. Supp.
2d 1297, 1301 (S.D. Fla. 2012), aff’d in part, rev’d in part on other grounds 516 F. App’x 899
(11th Cir. 2013); (see also Mot. 15 n.4).
Without the plausible factual allegation that final policymakers’ actions caused
Pichardo’s injuries, Plaintiffs cannot bring a claim against the County. See Hill v. Clifton, 74
F.3d 1150, 1152 (11th Cir. 1996) (“Only those officials who have final policymaking authority
may render the municipality liable under [section] 1983.” (alteration added; citation omitted)).
The unsupported declaration “Miami-Dade County” is responsible for Pichardo’s injuries is
insufficient to satisfy a claim under Monell.
Rather than addressing Defendants’ arguments, Plaintiffs cite a 2005 Sun Sentinel article
discussing a settlement the County reached with approximately 100,000 individuals improperly
strip-searched during the preceding seven years. Plaintiffs argue in their Response the article
demonstrates the County has a well-known policy of engaging in illegal strip searches. (See
Resp. 15–17 (quoting Chrystian Tejedor, County to Pay $4.5 Million to 100,000 People, SUN
SENTINEL

(Apr.

19,

2005),

http://articles.sun-sentinel.com/2005-04-

19/news/0504190132_1_invasive-searches-strip-search-body-cavity-searches)). The Court does
not consider the newspaper article, excerpted in a response memorandum, in considering the

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sufficiency of a claim on a Rule 12(b)(6) motion. See McKally v. Perez, 87 F. Supp. 3d 1310,
1317 (S.D. Fla. 2015) (“[A] complaint may not be amended by briefs in opposition to a motion
to dismiss.” (alteration added; citations omitted)).
The Court also observes other allegations of the Second Amended Complaint —
incorporated by reference into Count VIII (see 2d Am. Compl. ¶ 128) — contradict Plaintiffs’
assertion of the existence of a policy. For example, the pleading contains several examples of
MDCR “policies.”10

(See id. ¶¶ 52–57).

The Complaint states the MDCR has “a ‘Zero

Tolerance Policy’ for incidents of sexual misconduct against inmates by inmates or staff.” (Id. ¶
52). This includes prohibitions on “taking images of all or part of an inmate’s naked body” (id. ¶
54 (bold removed) (quoting MIAMI-DADE CORR.

AND

REHAB. DEP’T, INMATE SEXUAL

ASSAULT/ABUSE PREVENTION, DEPARTMENTAL STANDARD OPERATING PROCEDURE 15-008
(2012) (“DSOP”) Section II.E.)), and required training of all MDCR staff with access to inmates
regarding the “[s]taff’s responsibilities to prevent, detect, report, and respond to sexual violence .
. . [and] frisk/strip search procedures for cross gender” (id. ¶ 55 (alterations added; bold
removed) (quoting DSOP 15-008 Section III.A.1.b & h)). Plaintiffs even allege “Defendants
failed to follow their own policies when an inmate, like Mrs. Pichardo, is in their custody and
sexually harassed by other inmates.” (Id. ¶ 62).
Regardless of whether the referenced operating procedures meet the definition of
“policy” as set forth in Monell and its progeny, they signify an official rejection of precisely the
kind of illegal strip searches Pichardo was allegedly subjected to. These specific statements
demonstrate Plaintiffs have not satisfied the Iqbal pleading standard that would “permit the court

10

Neither Plaintiffs nor Defendants discuss who in the County government is responsible for
promulgating these particular “Departmental Standard Operating Procedures.”

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to draw the reasonable inference that [Miami-Dade County] is liable for the misconduct alleged.”
556 U.S. at 678.
As Plaintiffs fail to allege the existence of an official policy or widespread practice of
illegal strip searches, Count VIII is dismissed.
C. Carlos A. Migoya and Daniel Junior
Plaintiffs name as Defendants Daniel Junior, individually and as interim director of the
MDCR, and Carlos A. Migoya, individually and in his capacity as chief executive officer of the
Public Health Trust. As Defendants point out, not a single allegation involves Junior or Migoya
individually (see Mot. 2 n.2), and a suit cannot be brought against them in their official
capacities, see Kentucky v. Graham, 473 U.S. 159, 166 (1985) (“[A]n official-capacity suit is, in
all respects other than name, to be treated as a suit against the entity. . . . It is not a suit against
the official personally.” (alterations added; emphasis removed; internal citation omitted)).
Because the real parties in interest are the governmental entities and not the named
officials, the Court agrees suit against these Defendants in their official capacities is
inappropriate, and Junior and Migoya should therefore be dismissed. See Busby v. City of
Orlando, 931 F.2d 764, 776 (11th Cir. 1991) (“To keep both the City and the officers sued in
their official capacity as defendants in this case would have been redundant and possibly
confusing to the jury.”).
Defendants have correctly stated the law with respect to official capacity suits, and
Plaintiffs do not contest Defendants’ argument. As such, Daniel Junior and Carlos A. Migoya
are dismissed.

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D. The Doe Defendants
Defendants argue the Doe Defendants should be dismissed because Plaintiffs have yet to
identify or serve them. Plaintiffs do not address this argument in their Response.
According to the Federal Rule of Civil Procedure 4(m), “[i]f a defendant is not served
within 90 days after the complaint is filed, the court . . . must dismiss the action without
prejudice against that defendant or order that service be made.” Id. (alterations added). The
Rule provides an exception, which allows the court to extend the time for service “if the plaintiff
shows good cause.” Id. “Good cause exists only when some outside factor[,] such as reliance on
faulty advice, rather than inadvertence or negligence, prevented service.”

Bey ex rel.

Washington v. Hillsborough Cty., No. 16-10608, 2017 WL 474334, at *2 (11th Cir. Feb. 6, 2017)
(alteration in original; citation and internal quotation marks omitted).
Plaintiffs do not address Defendants’ argument under Rule 4(m) for dismissing the Doe
Defendants, much less show good cause for the failure to timely serve them. Consequently, the
Court dismisses those Defendants.
E. Dismissal without leave to amend
“Ordinarily, if the underlying facts or circumstances relied upon by a plaintiff may be a
proper subject of relief, leave to amend should be freely given.” Thompson v. City of Miami
Beach, 990 F. Supp. 2d 1335, 1343 (S.D. Fla. 2014) (quoting Dysart v. BankTrust, 516 F. App’x
861, 865 (11th Cir. 2013)). District courts may nevertheless “properly deny leave to amend the
complaint . . . when such amendment would be futile.” Id. (alteration added) (citation omitted).
Dismissal without leave to amend is also appropriate where an amendment to a complaint is
sought to be filed well after a scheduling order deadline. See McKeever v. Liberty Mut. Group
Inc., 487 F. App’x 487 (11th Cir. 2012).

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Plaintiffs have been aware, following a December 20, 2016 Status Conference [ECF No.
31], the Second Amended Complaint would be their final opportunity to plead their federal
claims. At the Status Conference, Defendants placed Plaintiffs on notice regarding at least some
of the First Amended Complaint’s deficiencies; the Second Amended Complaint does not cure
them. Furthermore, the circumstances of this case clearly do not entitle Pichardo to relief under
section 1983. Accordingly, the undersigned concludes any further attempts to plead the federal
claims would be futile.
With respect to the Doe Defendants, although usually dismissal under Rule 4(m) is
without prejudice (see FED. R. CIV. P. 4(m)), Plaintiffs have not attempted to argue a “reasonable
basis for noncompliance within the time specified,” In re Trasylol Prods. Liab. Litig., No. 08MD-01928, 2011 WL 830287, at *8 (S.D. Fla. Mar. 8, 2011) (internal quotation marks omitted)
(quoting Gartin v. Par Pharm. Cos., Inc., 289 F. App’x 688, 692 (5th Cir. 2008)). Additionally,
the Court’s most recent Order granting an extension of time to perfect service explicitly stated
the “deadline will not be extended.” (Order [ECF No. 36]). As such, the claims against the Doe
Defendants are dismissed with prejudice.
F. The State Law Claims (Counts IX–XV)
District courts may, in their discretion, decide whether to exercise supplemental
jurisdiction over state law claims, see Raney v. Allstate Ins. Co., 370 F.3d 1086, 1088–89 (11th
Cir. 2004) (citing Mergens v. Dreyfoos, 166 F.3d 1114, 1119 (11th Cir. 1999)), and courts in this
Circuit are encouraged to dismiss remaining state claims when all federal claims have been
dismissed prior to trial, see id. at 1089 (citing L.A. Draper & Son v. Wheelabrator-Frye, Inc.,
735 F.2d 414, 428 (11th Cir. 1984)). After “tak[ing] into account concerns of comity, judicial
economy, convenience, fairness, and the like,” Crosby v. Paulk, 187 F.3d 1339, 1352 (11th Cir.

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1999) (alteration added; internal quotation marks and citation omitted), the undersigned
concludes exercise of supplemental jurisdiction over the remaining state claims is not
appropriate. The better course is dismissal without prejudice to allow Plaintiffs to refile their
claims in state court, as they have been unable to properly frame their federal law claims. See
Lagogiannis v. U.S. Bank, Case No. 14-61809-CIV, 2014 WL 11776950, at *2 (S.D. Fla. Sept.
16, 2014) (citation omitted).
IV. CONCLUSION
In light of the foregoing, it is ORDERED AND ADJUDGED that the Motion [ECF No.
75] is GRANTED in part. The Second Amended Complaint [ECF No. 40] is DISMISSED.
The Clerk is instructed to mark this case as CLOSED.
DONE AND ORDERED in Chambers at Key West, Florida, this 8th day of June, 2017.

_________________________________
CECILIA M. ALTONAGA
UNITED STATES DISTRICT JUDGE
cc:

counsel of record

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