McNair v. TrueCore Behavioral Solutions, LLC et al

Filing 118

ORDER denying 109 Motion for Reconsideration and Other Related Relief; denying 115 Motion for Leave to Enter Brief Sur-Reply. Signed by Judge Beth Bloom on 9/15/2022. See attached document for full details. (jas)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 21-cv-24094-BLOOM/Otazo-Reyes
GENEVA MCNAIR, individually and as
guardian ad litem for KEM, a minor,
Plaintiff,
v.
TRUECORE BEHAVIORAL SOLUTIONS
LLC, et al.,
Defendants.
___________________________________/
ORDER DENYING MOTION FOR RECONSIDERATION
THIS CAUSE is before the Court upon Plaintiff Geneva McNair’s, individually and as
guardian ad litem for KEM, Motion for Reconsideration and Other Related Relief, ECF No. [109]
(the “Motion”). Defendants Florida Department of Juvenile Justice (“FDJJ”) and TrueCore
Behavioral Solutions, LLC (“TrueCore”) filed a Response in Opposition, ECF No. [110], to which
Plaintiff filed an untimely Reply, ECF No. [114]. 1 Having carefully reviewed the Motion, the
Response, the Reply, the record in this case, the applicable law, and being otherwise fully advised,
the Motion is denied for the reasons set forth below.
I.

BACKGROUND

In Count III of Plaintiff’s Second Amended Complaint (“SAC”), Plaintiff alleged that Eric
Hall (“Hall”), the Secretary of FDJJ, was liable for alleged sexual abuse that KEM suffered as a

The Reply was filed 41 minutes after midnight following the date it was due. See ECF No. [114]. As
Defendants have previously noted, this is not the first time Plaintiff has filed in the early morning hours of
the day after a filing was due. ECF No. [98] at 6 (noting a “pattern of delays”). The Court has considered
Plaintiff’s Reply in the rendering of this decision, but the Court advises Plaintiff that it should not count on
further leniency.

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detainee at the Miami Girls Academy, which was operated by TrueCore pursuant to a contract
with FDJJ. ECF No. [44] at 31-32. Hall, among the other Defendants in this case, moved to dismiss
on numerous grounds, including that Hall was shielded by sovereign immunity. ECF No. [46] at
12-13.
On June 15, 2022, the Court heard argument on the Defendants’ Motions to Dismiss. ECF
Nos. [45], [46], [47], [48]. At that hearing, the Court and the parties discussed the applicability of
the Ex parte Young exception to sovereign immunity, which permits suits against otherwise
immune state officers when the plaintiff seeks “prospective equitable relief to end continuing
violations of federal law.” Fla. Ass’n of Rehab. Facilities, Inc. v. Fla. Dep’t of Health & Rehab.
Servs., 225 F.3d 1208, 1219 (11th Cir. 2000) (citing Ex parte Young, 209 U.S. 123 (1908)).
Because the Ex parte Young exception hinges on the availability of prospective relief, the
Court questioned Plaintiff’s counsel as to whether KEM remains a detainee. ECF No. [110-1] at
9. Plaintiff’s counsel answered:
No, Your Honor. She’s not a detainee, but the issue goes far and above and beyond.
We're here on a case in which a minor was in the custody of DFJJ [sic], was
supervised – which is an agency headed and supervised by Hall. She's still under
the supervision of the State pursuant to the terms of her release. She's still being
monitored. She's still a ward, if you will, of State custody, but just in a different
place.
Id. at 9-10.
The Court responded: “But she’s not at the Miami Girls Academy. So for the purposes of
this suit against Hall, . . . where within the [SAC] have you made such allegations that [ ]
prospective relief is warranted under the Ex parte Young Doctrine?” Id. at 10.
Plaintiff had no meaningful response. See id. at 10-13. Given Plaintiff’s concession that
KEM was no longer a detainee and the contract between TrueCore and the FDJJ no longer exists,
the Court found no basis for prospective relief against Hall. Id. at 13-14. Accordingly, the Court
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held that Ex parte Young was inapplicable, so Count III was dismissed with prejudice. Id. at 1516.
In the Instant Motion, Plaintiff asserts that “[s]ubsequent to the hearing facts have come to
light which materially alter the Court’s assumptions.” ECF No. [109] at 2. Plaintiff explains that
it has recently obtained a Final Disposition Order from KEM’s juvenile case, which, according to
Plaintiff, states that KEM is:
COMMITTED to the custody of the Department of Juvenile Justice (DJJ), for
placement in a HIGH risk residential program, including conditional release, for an
indeterminate period, but no longer than the child's __ 19th __ 21st birthday, or the
maximum term of imprisonment an adult may serve for each count listed above,
whichever comes first.
Id. at 2. Plaintiff argues that this Final Disposition Order proves that KEM remains committed to
the FDJJ’s custody until “at least age 19.” Id. at 3. Plaintiff argus that, despite KEM’s current
residence in her mother’s home, FDJJ’s authority over KEM requires this Court to reconsider
whether there is a basis for prospective relief against FDJJ, such that Count III should not have
been dismissed. ECF No. [114] at 3-4.
In Response, Defendants argue that the Motion is procedurally improper, untimely, and it
fails to assert any new facts that would warrant reconsideration of the Court’s decision to dismiss
Count III with prejudice. ECF No. [110].
II.

LEGAL STANDARD

A motion for reconsideration is “an extraordinary remedy to be employed sparingly.”
Burger King Corp. v. Ashland Equities, Inc., 181 F. Supp. 2d 1366, 1370 (S.D. Fla. 2002). “The
burden is upon the movant to establish the extraordinary circumstances supporting
reconsideration.” Saint Croix Club of Naples, Inc. v. QBE Ins. Corp., No. 2:07-cv-00468-JLQ,
2009 WL 10670066, at *1 (M.D. Fla. June 15, 2009).

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A motion for reconsideration must clearly “set forth facts or law of a strongly convincing
nature to induce the court to reverse its prior decision.” Burger King, 181 F. Supp. 2d at 1369. “A
motion for reconsideration should not be used as a vehicle to present authorities available at the
time of the first decision or to reiterate arguments previously made[.]” Z.K. Marine Inc. v. M/V
Archigetis, 808 F. Supp. 1561, 1563 (S.D. Fla. 1992). As such, a court will not reconsider its prior
ruling without a showing of “clear and obvious error where the ‘interests of justice’ demand
correction.” Bhogaita v. Altamonte Heights Condo. Ass’n, Inc., No. 6:11-cv-1637, 2013 WL
425827, at *1 (M.D. Fla. Feb. 4, 2013) (quoting Am. Home Assurance Co. v. Glenn Estess &
Assoc., 763 F.2d 1237, 1239 (11th Cir. 1985)).
III.

DISCUSSION

Plaintiff has not met its burden to show that reconsideration is warranted.
As an initial matter, Defendants are correct that Plaintiff’s Motion is procedurally deficient
in several ways. First, Plaintiff does not appear to have complied with Local Rule 7.1(a)(3), which
requires “a good faith effort” to confer with opposing counsel prior to filing a motion. Based on
the uncontroverted statements in Defendants’ Response, see ECF Nos. [110] at 4-5 (Response),
[114] at 6 (Reply), Plaintiff’s email sent at the end of the business day on August 22, 2022 – the
day that Plaintiff filed the Motion – was not a “good faith” effort to confer. Plaintiff’s failure to
confer is not excused by the fact that opposing counsel did “not agree with the requested relief.”
ECF No. [114] at 6.
Second, Plaintiff failed to comply with Local Rule 7.1(a)’s requirement that “[e]very
motion . . . shall incorporate a memorandum of law citing supporting authorities[.]” Plaintiff’s
Motion lacks such a memorandum and is practically devoid of citations to legal authority. ECF
No. [110]. The Motion itself does not set forth the procedural basis for its request for

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reconsideration and Plaintiff waited until its Reply to invoke Fed. R. Civ. P. 60(b)(1) and (6). ECF
No. [114] at 5.
Either of these procedural deficiencies would suffice for the Court to deny Plaintiff’s
Motion without prejudice. However, for the reasons discussed below, denial with prejudice is more
appropriate.
A. The Motion Does Not Comply with Rule 60.
In its Reply, Plaintiff indicates that its Motion is based on Rule 60(b)(1) and (6), which
allow reconsideration for the reasons of “mistake, inadvertence, surprise, or excusable neglect”
and “any other reason that justifies relief.” ECF No. [114] at 5. But Plaintiff has neither shown nor
argued how the present circumstances fit under any of those bases. Id. Rule 60(b)(2) appears to be
more apt, because the basis for Plaintiff’s Motion is a “Final Disposition Order” in KEM’s juvenile
case that seemingly constitutes “newly discovered evidence” as contemplated in Rule 60(b)(2).
But Rule 60(b)(2) only applies to “newly discovered evidence that, with reasonable diligence,
could not have been discovered” earlier. According to Plaintiff, the Final Disposition Order was
entered on September 21, 2020 – almost nine months prior to the hearing on the motion to dismiss.
ECF No. [109] at 2. Plaintiff has not demonstrated – nor even alleged – that the Final Disposition
Order could not have been discovered earlier through the exercise of reasonable diligence. Thus,
Plaintiff has failed to show that its Motion fits under any of the acceptable bases for reconsideration
stated in Rule 60(b).
Moreover, all motions under Rule 60(b) must be brought “within a reasonable time[.]” Rule
60(c)(1). Although Plaintiff is correct that its Motion was filed within the one-year outer limit
applicable to motions relying on Rule 60(b)(1-3), the Motion was inexplicably filed after Plaintiff
filed a Third Amended Complaint (TAC) and after Defendants filed their Motions to Dismiss. See

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ECF Nos. [98], [99]. Indeed, the Motion was filed on the day of the deadline for Plaintiff to respond
to the Motions to Dismiss, apparently on the mistaken belief that the Motion was an acceptable
filing in lieu of a response to the Motions to Dismiss. See Order to Show Cause, ECF No. [116].
Granting the Motion would effectively moot the TAC and Defendants’ Motions to Dismiss, thus
wasting judicial time and resources. Under these circumstances, and particularly in the absence of
any explanation as to why Plaintiff could not have presented the Final Disposition Order earlier,
the Court concludes that Plaintiff’s Motion was not brought “within a reasonable time.” Rule
60(c)(1).
B. The Motion Is Meritless.
Even if the Motion were properly brought under Rule 60(b), the Court would deny it
because it fails to “set forth facts or law of a strongly convincing nature to induce the court to
reverse its prior decision.” Burger King, 181 F. Supp. 2d at 1369.
As noted in the Background section above, the Court dismissed Count III after determining
that Hall was immune from suit for damages and the Ex parte Young exception did not apply. ECF
No. [110-1] at 9-13. The Ex parte Young doctrine allows suit against otherwise immune state
officials when the plaintiff seeks “prospective injunctive or declaratory relief” for ongoing
violations of federal law, as opposed to “retrospective relief such as restitution or damages.” Fla.
Ass’n of Rehab. Facilities, 225 F.3d at 1220. “Ex parte Young has been applied in cases where a
violation of federal law by a state official is ongoing as opposed to cases in which federal law has
been violated at one time or over a period of time in the past.” Id. at 1219.
This case stems from a single incident of sexual assault that allegedly occurred while KEM
was a detainee at a TrueCore facility. KEM is no longer a detainee there or elsewhere. Even
assuming the Final Disposition Order proves that FDJJ has “custody and control over KEM until

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at least age 19,” as Plaintiff claims, ECF No. [109] at 35, there is no basis for prospective injunctive
relief because KEM is in fact living with her mother. She is not detained, so she would not benefit
from an injunction requiring changes to FDJJ’s policies relating to detention facilities.
Relatedly, the specific injunctive relief Plaintiff requests does not fit within the Ex parte
Young exception. Plaintiff seeks an injunction requiring Hall and FDJJ to provide mental health
treatment for KEM to address the harm she continues to suffer from the sexual assault that occurred
in 2021. ECF Nos. [109] at 4; [114] at 6. Treating KEM for a past harm is “compensatory” and a
form of “restitution”; it is not remedying an ongoing violation of federal law, as Ex parte Young
requires. Florida Ass’n of Rehab. Facilities, 225 F.3d at 1221.
Lastly, the supposedly new evidence contained within Plaintiff’s Motion is not, in fact,
new. See Z.K. Marine Inc., 808 F. Supp. at 1563 (“A motion for reconsideration should not be used
as a vehicle to . . . reiterate arguments previously made[.]”). At the June 15 hearing, Plaintiff’s
attorney stated that, while KEM was no longer a detainee, she was still “under the supervision of
the State pursuant to the terms of her release. She’s still being monitored. She’s still a ward, if you
will, of State custody, but just in a different place.” ECF No. [110-1] at 9-10. Thus, when the Court
dismissed Count III, Plaintiff had already argued that the FDJJ’s supposed custody over KEM
renders Ex parte Young applicable. For the reasons stated by the Court at that hearing – and
repeated in this Order – Plaintiff’s position is devoid of legal support from Ex parte Young or its
progeny.
C. Plaintiff’s Requests for Related Relief.
At the end of its Motion, Plaintiff makes several additional requests. First, Plaintiff moves
to stay Plaintiff’s deadline to respond to Defendants’ Motions to Dismiss Plaintiff’s Third
Amended Complaint. ECF No. [109] at 3. This request is denied. Plaintiff shall comply with the

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deadline stated in the Court’s Order to Show Cause, ECF No. [116].
Second, Plaintiff requests leave to file a Fourth Amended Complaint. ECF No. [109] at 4.
This request is denied, as the Court explicitly warned Plaintiff that its Third Amended Complaint
would be its “final opportunity to amend[.]” ECF No. [110-1] at 51.
Third, Plaintiff requests that “the Court compel an independent psychological evaluation
on KEM at the Defendants’ expense[.]” ECF No. [109] at 4. As Defendants correctly note, ECF
No. [110] at 13, Plaintiff cites to no legal authority in support of its request, which is therefore
denied. See S.D. Fla. L.R. 7.1(a)(1) (requiring motions to be supported by citations to supporting
authorities).
IV.

CONCLUSION

Accordingly, it is ORDERED AND ADJUDGED as follows:
1. Plaintiff’s Motion for Reconsideration and Other Related Relief, ECF No. [109], is
DENIED.
2. Defendants’ Motion for Leave to Enter Brief Sur-Reply, ECF No. [115], is DENIED
as moot.
DONE AND ORDERED in Chambers at Miami, Florida, on September 15, 2022.

_________________________________
BETH BLOOM
UNITED STATES DISTRICT JUDGE

Copies to:
Counsel of Record
Javonte Jamarie Richardson
4121 NW 3rd Ave
Miami, FL 33127

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