Meus et al v. The Geo Group, Inc. et al

Filing 77

OPINION AND ORDER granting 45 Motion to Dismiss for Failure to State a Claim; granting 46 Motion to Dismiss for Failure to State a Claim; granting 47 Motion to Dismiss; granting 48 Motion to Dismiss; granting 61 Motion to Dismiss; granting 17 Motion to Dismiss. Signed by Judge Kenneth A. Marra on 1/9/2012. (ir) (Main Document 77 replaced on 1/9/2012) (ir).

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 11-80986-CIV-MARRA
POWER MEUS as personal representative of
the estate of Power Ed Meus, deceased, and
on behalf of Natural Father, Power Meus,
DELPHINE MEUS, JEAN NOEL, Mother,
WISLAINE MEUS, Wife, TASHA REDMOND,
as Natural Mother and Legal Guardian of SAH
VON MEUS, a minor child of Power Ed Meus,
deceased,
Plaintiffs,
vs.
THE GEO GROUP, formerly known as
WACKENHUT CORRECTIONS GROUP, et al.,
Defendants.
_____________________________________/
OPINION AND ORDER
This cause is before the Court upon Defendant The Geo Group, Inc.’s Amended Motion
to Dismiss Plaintiffs’ First Amended Complaint (DE 17); Defendant Florida Department of
Management Services’ Motion to Dismiss Plaintiffs’ First Amended Complaint (DE 45 and 46);
Defendant Florida Department of Corrections’ Motion to Dismiss First Amended Complaint (DE
47); Defendant Sushma Parekh’s Motion to Dismiss Plaintiffs’ First Amended Complaint (DE
48)1 and Defendant Geo Care, Inc.’s Motion to Dismiss First Amended Complaint (DE 61). The
Court has carefully considered the motions and is otherwise fully advised in the premises.

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Defendants Tom C. Levins, John McCardel, Tracey Anderson, Elaine McGrory,
Kathleen Livermore, Sandra Dunivent and Vicky Canter filed a Notice of Joinder in Defendant
Sushma Parekh’s Motion to Dismiss Plaintiffs’ First Amended Complaint (DE 56 and 74.)

I. Background
This case arises out of the death of Power Ed Meus (“decedent”) while in custody at
Moore Haven Correctional Facility (“Moore Haven”). Plaintiff Power Meus brings this case as
the personal representative of the Estate of Power Ed Meus and as his natural father. Delphine
Meus Jean Noel brings this case as natural mother of decedent, Wislaine Meus brings this case as
surviving spouse of decedent and Tasha Redmond brings this case as the natural mother and legal
guardian on behalf of Sah Von Mues, the minor child of decedent. (First Am. Compl. ¶ ¶ 5-7,
25.) Specifically, Plaintiffs bring suit against the following individuals and entities: Geo Group,
Inc. (“Geo Group”) and Geo Care, Inc. (“Geo Care”) the owners/operators of Moore Haven, the
Florida Department of Corrections, the entity that delegated its custodial duties and contracted
with the Geo Group and Geo Care, John McCardel, the health care services administrator for
Moore Haven, Tom C. Levins, the warden/facility administrator for Moore Haven, Timothy
Lovell, a correctional officer at Moore Haven, Sushma Parekh, a medical doctor at Moore Haven,
Tracey Anderson, a licensed practical nurse at Moore Haven, Kathy Roberts, a licensed practical
nurse at Moore Haven, Elaine McGrory, a licensed registered nurse at Moore Haven, Vicky
Canter, a licensed registered nurse at Moore Haven and Sandra Dunivent, a licensed practical
nurse at Moore Haven (collectively, “Defendants”).2 (Id. at ¶ ¶ 8-19.) Count one of the First
Amended Complaint is labeled “violation of civil rights - 42 U.S.C. § 1983" and count two is
labeled “negligence resulting in wrongful death.”
According to the allegations of the First Amended Complaint, decedent suffered from
2

Defendant Kathleen Livermore appears in the case caption and throughout the
allegations of fact, but is not listed as a defendant in the section of the First Amended Complaint
listing Defendants. Upon amendment, Plaintiffs should remedy this apparent error.
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severe asthma, which was well-known to Defendants. (Id. at ¶ ¶ 21, 27.) From March 19, 2007
until his death on April 19, 2007, decedent developed a severe and debilitating asthma condition
resulting from the unwarranted withdrawal of steroid medication. Defendants acted with
deliberate indifference to decedent’s serious medical needs when they failed to provide necessary
and appropriate steroid treatment for his asthma, resulting in his death. (Id. at ¶ 49.) Defendants
the Geo Group, Geo Care, McCardel, Levins, Lovell, Roberts, McGrory, Canter, Livermore,
Dunivent and Parekh, all knew of decedent’s medical condition, but were deliberately indifferent
to it. (Id. at ¶ 50.)
Defendants Geo Group, Geo Care, Florida Department of Corrections, and the Florida
Department of Management Services move to dismiss the First Amended Complaint. They
contend the First Amended Complaint is unclear with respect to: (1) whether the individual
plaintiffs are bringing claims pursuant to 42 U.S.C. § 1983 (“section 1983") on their own behalf,
and if so, what constitutional right was allegedly violated; (2) whether the Estate, decedent’s
spouse, and minor child are seeking to assert claims to vindicate the decedent’s rights or their
own civil rights and (3) whether the minor child is bringing claims pursuant to both section 1983
and Florida’s wrongful death statute. Defendants also move to dismiss on the basis that the
decedent’s parents cannot bring a section 1983 claim on their own behalf. In addition, Defendant
Florida Department of Management Services contends that while it was named in the caption of
the lawsuit, there are no allegations against it anywhere in the First Amended Complaint.
Defendants Parekh, Levins, McCardel, Anderson, McGrory, Livermore, Dunivent and
Canter join in the Geo Group’s motion, but also move to dismiss based on Plaintiffs’ alleged
failure to sue these individual defendants within the two year statute of limitations for wrongful
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death.
II. Legal Standard
Rule 8(a) of the Federal Rules of Civil Procedure requires “a short and plain statement of
the claims” that “will give the defendant fair notice of what the plaintiff's claim is and the ground
upon which it rests.” Fed. R. Civ. P. 8(a). The Supreme Court has held that “[w]hile a complaint
attacked by a Rule 12(b) (6) motion to dismiss does not need detailed factual allegations, a
plaintiff's obligation to provide the ‘grounds’ of his ‘entitlement to relief’ requires more than
labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.
Factual allegations must be enough to raise a right to relief above the speculative level.” Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citations omitted).
"To survive a motion to dismiss, 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, 129 S.
Ct. 1937, 1949 (2009) (quotations and citations omitted). "A claim has facial plausibility when
the plaintiff pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged." Id. Thus, "only a complaint that states a
plausible claim for relief survives a motion to dismiss." Id. at 1950. When considering a motion
to dismiss, the Court must accept all of the plaintiff's allegations as true in determining whether a
plaintiff has stated a claim for which relief could be granted. Hishon v. King & Spalding, 467
U.S. 69, 73 (1984).

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III. Discussion
After reviewing the First Amended Complaint, the Court agrees with Defendants that it
lacks the necessary clarity to allow them to respond to it. Specifically, it is unclear which
Plaintiffs are asserting section 1983 claims and upon whose behalf they are asserting them. The
Court believes it would be helpful to highlight the controlling law in this area to assist Plaintiffs
in properly amending the First Amended Complaint.
In Robertson v. Hecksel, the Eleventh Circuit addressed a section 1983 claim brought by
a decedent’s mother against the police officer and police department that she claimed were
responsible for killing her adult child. Robertson v. Hecksel, 420 F.3d 1254, 1256 (11th Cir.
2005). The mother sought damages for loss of support, companionship, and past and future
mental pain and suffering due to a deprivation of her Fourteenth Amendment right to a
relationship with her child. Id. The Court held that a parent does not have a constitutional right
of companionship with an adult child. Id. at 1259-60. The Court also addressed the applicability
of state law pursuant to the borrowing provision of 42 U.S.C. § 1988. Id. at 1260- 61. The Court
rejected the plaintiff’s application of section 1988 to a section 1983 claim for her constitutional
rights, but noted that a plaintiff could seek a vindication of the decedent’s constitutional rights
under section 1983. Id. at 1261 citing Brazier v. Cherry, 293 F.2d 401 (5th Cir.1961)3 and
Carringer v. Rodgers, 331 F.3d 844 (11th Cir. 2003). The Court explained that when a section
1983 claim relies on the rights of the decedent, a plaintiff is essentially bringing a wrongful death
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The decisions of the United States Court of Appeals for the Fifth Circuit, as that court
existed on September 30, 1981, handed down by that court prior to the close of business on that
date, shall be binding as precedent in the Eleventh Circuit, for this court, the district courts, and
the bankruptcy courts in the circuit. Bonner v. Pritchard, 661 F.2d 1206, 1207 (11th Cir. 1981)
(en banc).
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suit under federal law. Id.; see also Brazier, 293 F.2d at 409 (Georgia’s wrongful death statute is
incorporated into federal law under section 1988).
In Continental National Bank v. Brill, 636 So. 2d 782 (Fla. Dist. Ct. App. 1994), the
Third District Court of Appeal of Florida discussed Florida’s wrongful death statute. In so doing,
the Brill court observed:
Under the Wrongful Death Act, the personal representative is the party who seeks recovery
of all damages caused by the injury resulting in death for the benefit of the decedent's
survivors and for the estate. The personal representative must bring a single action to recover
damages for all beneficiaries. Damages are to be awarded to the survivors and to the estate
in accordance with the parameters of recovery set by section 768.21.

Id. at 784. Those parameters permit recovery for (1) the estate; (2) the surviving spouse; (3) the
minor children, and all children if there is no surviving spouse; (4) each parent of a deceased
minor child and (5) each parent of an adult child if there are no other survivors. Florida Statutes
§ § 768.20-21.
Thus, those Plaintiffs having standing to sue under Florida’s wrongful death law may
bring claims for alleged violations of the decedent’s constitutional rights. To the extent any of the
Plaintiffs wish to bring a claim that their constitutional rights were violated by the death of the
decedent, they must first identify what constitutional right was violated. See Debrosse v.
Bradshaw, No. 09-80812-CIV, 2010 WL 773876, at * 4 (S.D. Fla. Mar. 5, 2010)
Although Plaintiffs’ response to the motion states that the parents of the decedent are not
alleging violations of their own constitutional rights (DE 18 at 13), that is not clear from the First
Amended Complaint. Thus, Plaintiffs should amend to clarify it. Additionally, Plaintiffs’
response to the motion states that the First Amended Complaint does not allege the decedent’s

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age, therefore decedent’s parents may be able to bring claims on their own behalf (DE 18 at 1011). Given that the First Amended Complaint must be amended, Plaintiffs should also clarify
whether decedent was a minor child, given its significance to these claims. Indeed, if the
decedent was not a minor, the parents of the decedent cannot bring claims on behalf of the
decedent pursuant to section 1983 or state law wrongful death. Equally unclear is whether Tasha
Redmond, the mother of decedent’s minor child, seeks to bring claims on her own behalf or on
behalf of the minor child, and if so, what claims.4 The Court believes the best course of action is
for the second amended complaint to identify each plaintiff, whether the claims brought by each
plaintiff is for violations of the decedent’s constitutional rights, or their own constitutional rights,
or state law claims, and to identify the constitutional right that was allegedly violated.4
Next, the Court will address an issue raised by Florida Department of Management
Services. Although this entity was named in the caption of the lawsuit and the opening
paragraph of the First Amended Complaint, there are no allegations against it anywhere in the
First Amended Complaint. Although Plaintiffs state that it refers to this entity as “Department of
Corrections,” this is unclear because there is another entity named “Florida Department of

4

The Court notes that the response memorandum states that Ms. Redmond is not bringing
any claims on her own behalf. (DE 18 at 9.)
4

The Court has reviewed the caselaw relied upon by Plaintiffs in arguing that the parents
of decedent are entitled to maintain an action for damages under section 1983. Those cases
either pre-date Robertson or are from outside this jurisdiction. (DE 18 at 10-12.) Given that the
Eleventh Circuit has noted that “[t]he right to wrongful death recovery under section 1983 has
generated considerable debate amongst our sister circuits,” cases outside this jurisdiction are of
limited value. Carringer, 331 F.3d at 850 n.9. Lastly, Plaintiff’s reliance on Niesen v. City of
Clearwater, No. 8:08-cv-1599-T-30TBM, 2009 WL 1046122, (M.D. Fla. Apr. 20, 2009) is
misplaced because that case only addressed the appropriate statute of limitations for section 1983
claims as opposed to legal remedies available for section 1983 claims.
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Corrections.” Therefore, the Court will give Plaintiffs leave to amend the Complaint to include
allegations against this entity.
Finally, the Court turns to Defendant Parekh’s argument, adopted by Defendants Levins,
McCardel, Anderson, McGrory, Livermore, Dunivent and Canter that Plaintiffs’ state law
wrongful death claim must be dismissed because it is barred by the applicable statute of
limitations. Plaintiffs filed their initial complaint in state court on April 17, 2009 asserting a
wrongful death claim. Plaintiffs did not name any of the individually named Defendants in that
complaint. (Initial Complaint, Ex. A, DE 1-1.) Plaintiffs then filed their First Amended
Complaint on April 18, 2011,5 which added the individual Defendants and asserted a civil rights
claim pursuant to section 1983. (First Amended Complaint, DE 3.)
In Florida, the statute of limitations for wrongful death is two years. Florida Statute §
95.11(4)(d). “The accrual date for a wrongful death action is the date of death.” Raie v.
Cheminova, Inc., 336 F.3d 1278, 1280 (11th Cir. 2003) citing Fulton County Adm'r v. Sullivan,
753 So. 2d 549, 552 (Fla. 1999). Thus, with respect to the wrongful death claim against the
individual Defendants, Plaintiffs needed to file the complaint before April 19, 2009. For that
reason, the wrongful death claim against the individual Defendants is dismissed.
In response, Plaintiffs state that the wrongful death count is not a separate cause of action,
but is intended to be a remedy for damages in the section 1983 claim and therefore is subject to
section 1983's four-year statute of limitations. (DE 64 at 14-16.) Given that the First Amended
Complaint has identified two counts, one of which references section 1983 and the other which
5

Although the First Amended Complaint is not date-stamped by the state court, the
certificate of service is dated April 18, 2011. In addition, the parties do not dispute that the First
Amended Complaint was filed after April 19, 2009, more than two years after decedent died.
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references wrongful death, a fair reading suggests Plaintiffs intended to bring two separate counts
under two different legal theories. Moreover, as highlighted by the Court’s discussion of
Robertson, the remedy for section 1983 is already drawn from state wrongful death law. See
Robertson v. Hecksel, 420 F.3d at 1261; see also Brazier, 293 F.3d at 409 (Georgia’s wrongful
death statute is incorporated into federal law under section 1988). In other words, there is no
reason for Plaintiffs to bring a state wrongful death claim unless they wish to pursue that legal
theory. To the extent the wrongful death claim is brought against Defendants who were sued
within the two year statute of limitations, it may proceed.
IV. Conclusion
Accordingly, it is hereby ORDERED AND ADJUDGED as follows:
1)

The Geo Group, Inc.’s Amended Motion to Dismiss Plaintiffs’ First Amended
Complaint (DE 17) is GRANTED.

2)

Defendant Florida Department of Management Services’ Motion to Dismiss
Plaintiffs’ First Amended Complaint (DE 45 and 46) is GRANTED.

3)

Defendant Florida Department of Corrections’ Motion to Dismiss First Amended
Complaint (DE 47) is GRANTED.

4)

Defendant Sushma Parekh’s Motion to Dismiss Plaintiffs’ First Amended
Complaint (DE 48) is GRANTED.

5)

Defendant Geo Care, Inc.’s Motion to Dismiss First Amended Complaint (DE
61) is GRANTED.

6)

The wrongful death claim (count two) against the individuals defendants (Parekh,
Levins, McCardel, Anderson, McGrory, Livermore, Dunivent and Canter) is
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dismissed, but may proceed against the non-individual defendants.
7)

Plaintiffs are granted leave to amend the Complaint as directed in this Order.

DONE AND ORDERED in Chambers at West Palm Beach, Palm Beach County,
Florida, this 9th day of January, 2011.
______________________________________
KENNETH A. MARRA
United States District Judge

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