Marmol v. Mount Sinai Hospital

Filing 30

ORDER GRANTING DEFENDANT'S MOTION TO DISMISSgranting 26 Motion to Dismiss for Failure to State a Claim. Closing Case. Motions Terminated: 26 Defendant's MOTION TO DISMISS 1 Complaint FOR FAILURE TO STATE A CLAIM fil ed by Mount Sinai Hospital. Signed by Judge Marcia G. Cooke on 11/30/2017. (tm) NOTICE: If there are sealed documents in this case, they may be unsealed after 1 year or as directed by Court Order, unless they have been designated to be permanently sealed. See Local Rule 5.4 and Administrative Order 2014-69.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 17-21752-Civ-COOKE/GOODMAN
MAGDALIA MARMOL,
Plaintiff,
vs.
MOUNT SINAI HOSPITAL,
Defendant.
_______________________________________/
ORDER GRANTING DEFENDANT’S MOTION TO DISMISS
Plaintiff Magdalia Marmol’s (“Plaintiff”) Complaint (ECF No. 1) appears to arise out
of a dependency case involving Plaintiff’s granddaughter. Plaintiff alleges that her temporary
custody and human and constitutional rights were violated pursuant to Florida Statutes
sections 39.509 and 39.623 when the head nurse at Defendant Mt. Sinai Hospital
(“Defendant”) prepared her “grandchild to be given away to Ms. Maria Elena Rubio.”
Compl., ECF No. 1, p. 1. Plaintiff seeks damages in the amount of $5,000,000. Defendant
has filed a Motion to Dismiss Plaintiff’s Complaint (“Motion”) (ECF No. 26), which
Plaintiff opposes (ECF No. 27). After reviewing the pleadings, the record, relevant legal
authorities, and for the reasons explained below, Defendant’s Motion is granted.
I. DISCUSSION
Defendant moves to dismiss Plaintiff’s Complaint on several grounds, including that
Plaintiff failed to allege “a short and plain statement of the grounds for the court’s
jurisdiction” pursuant to Federal Rule of Civil Procedure (“Rule”) 8(a)(1), Plaintiff’s
Complaint fails to contain “a short and plain statement of the claim showing that the pleader
is entitled to relief” under Rule 8(a)(2), and Plaintiff has not stated a claim upon which relief
can be granted pursuant to Rule 12(b)(6).1 Although a pro se litigant’s pleadings are construed
more liberally than pleadings drafted by attorneys, “this leniency does not give the court

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Defendant also contends that Plaintiff’s Complaint is barred on its face by the four-year
statute of limitations in Florida Statute section 95.11(3)(f). Because Plaintiff’s Complaint is
subject to dismissal on other grounds, I do not address the statute of limitations argument.
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license to serve as de facto counsel for a party . . . or to rewrite an otherwise deficient
pleading in order to sustain an action.” GJR Invs., Inc. v. County of Escambia, Fla., 132 F.3d
1359, 1369 (11th Cir. 1998) (citations omitted), overruled on other grounds as recognized
by Randall v. Scott, 610 F.3d 701 (11th Cir. 2010).
Defendant first argues that Plaintiff has not provided a short and plain statement
explaining how this Court has jurisdiction as required by Rule 8(a)(1). “In a given case, a
federal district court must have at least one of three types of subject matter jurisdiction: (1)
jurisdiction under a specific statutory grant; (2) federal question jurisdiction pursuant to 28
U.S.C. § 1331; or (3) diversity jurisdiction pursuant to 28 U.S.C. § 1332(a).” Baltin v. Alaron
Trading Corp., 128 F.3d 1466, 1469 (11th Cir. 1997). While Plaintiff’s claims appear to be
premised more on Florida state statutes related to dependency proceedings than anything
else, taking the Complaint in the light most favorable to Plaintiff, I must assume her
allegation of a violation of her constitutional rights refers to a federal Constitutional right.
Plaintiff’s claim is therefore not subject to dismissal pursuant to Rule 8(a)(1).
Defendant next argues Plaintiff has failed to state a cause of action and allege facts
that show she is entitled to relief pursuant to Rules 8(a)(2) and 12(b)(6). I agree. While
Plaintiff claims all of her human and constitutional rights were violated, Rule 8 requires
more specificity as to which constitutional rights were violated and how so that Defendant
can fashion an appropriate response. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“[T]he
pleading standard Rule 8 announces does not require ‘detailed factual allegations,’ but it
demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.”)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). In addition, neither Florida
statute referenced by Plaintiff provides for a private right of action for damages. See Fla. Stat.
§ 39.509 (relating to grandparents visitation rights to their grandchildren who are adjudicated
dependent); § 39.6231 (relating to permanent placement of dependent children with a fit and
willing relative). “[M]ost courts generally look to the legislative intent of a statute to
determine whether a private cause of action should be judicially inferred.” Murthy v. N. Sinha
Corp., 644 So. 2d 983, 985 (Fla. 1994). Both statutes at issue here are found in Chapter 39,
Proceedings Relating to Children, the purpose of which is to “[t]o provide for the care,
safety, and protection of children in an environment that fosters healthy social, emotional,
intellectual, and physical development; to ensure secure and safe custody; to promote the

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health and well-being of all children under the state’s care; and to prevent the occurrence of
child abuse, neglect, and abandonment.” Fla. Stat. § 39.001(1)(a). Neither one indicates any
intention to provide a private right of action for money damages against a hospital for its
alleged failure to comply with either statute. Even assuming Plaintiff had alleged specific
facts that either statute had been violated in compliance with Rule 8(a)(1), Rule 12(b)(6)
would still counsel dismissal because neither statute provides for a private right of action.
II. CONCLUSION
For the reasons explained in this Order, Defendant’s Motion to Dismiss (ECF No.
26) is GRANTED and Plaintiff’s Complaint (ECF No. 1) is DISMISSED without prejudice.
The Clerk shall CLOSE this case. All pending motions, if any, are DENIED as moot.
DONE and ORDERED in Chambers, Miami, Florida, this 30th day of November
2017.

Copies furnished to:
Jonathan Goodman, U.S. Magistrate Judge
Counsel of record

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