UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
CASE NO.: 8:13-CV-2796-T-30TGW
SHIRLEY JENKINS, as Personal Representative for the Estate of Jovon Frazier, deceased,
Plaintiff,
vs. MANATEE COUNTY SHERIFF, CORIZON
HEALTH, INC., JOHN DOE(S) JANE DOE(S),
Defendants.
______________________________________/
DEFENDANT CORIZON HEALTH, INC,’S MOTION TO DISMISS
Defendant Corizon Health, Inc. (“Corizon”), pursuant to Federal Rule of Civil Procedure 12, and Rule 3.01, Local Rules of the United States District Court for the Middle District of Florida, files this Motion to Dismiss Plaintiff’s Complaint as follows:
MOTION
1. The Plaintiff brings constitutional claims against Corizon and its employees, who are identified as “John and Jane Does.” The essence of the claims are that Jovon Frazier (“Frazier”) was provided inadequate medical care in the Manatee County jail, and he subsequently had his left arm amputated and died.
2. The Complaint fails to properly state a claim against Corizon, and portions of the claims are barred by the expiration of the statute of limitations. Additionally, the “John Doe”
3. Therefore, the Complaint should be dismissed.
MEMORANDUM OF LAW
I. Background
According to the Complaint, Jenkins brings claims for the necessary amputation of her decedent’s left arm on February 2, 2010, and his death on September 18, 2011 (Complaint ¶1). All claims are brought pursuant to section 1983, and there are no state-law claims. Those claims are brought against the Manatee County Sheriff, Corizon and unnamed “John and Jane Does.”
Frazier entered the Manatee County Jail on February 18, 2009, and a medical intake performed by Corizon employees was “unremarkable” (Complaint ¶12). The Complaint details a number of medical requests submitted by Frazier concerning his arm. Between July 22, 2009 and September “7 or 8,” 2009, Frazier filed six such requests, and with each complaint, he was seen by Corizon employees (Complaint ¶¶ 13-20).
On September 17, 2009, an x-ray was performed on Frazier’s left arm, and the result was “negative, normal study” (Complaint ¶20-A). Between September “22 or 23,” 2009 and October 23, 2009, Frazier filed seven additional medical requests regarding his arm. In each case, Frazier was examined by medical personnel and referrals were made to the jail physician or physician assistant (Complaint ¶¶ 21-31).
Another x-ray was performed on October 29, 2009, finding “inferior subluxation of humeral head usually secondary to fluid and tendon injury.” The radiologist suggested an MRI be performed (Complaint ¶33). The MRI was performed the same day at Manatee Memorial Hospital, with a resultant diagnosis of a mass that was likely osteosarcoma (Complaint ¶36). Frazier returned to the jail on October 31, 2009 (Complaint ¶39).
Frazier was sent to Florida Cancer Specialists for an evaluation and treatment on November 4, 2009, and returned to the jail on November 9, 2009. On November 16, 2009, he was admitted to Moffitt Cancer and Research Center, and returned to the jail on November 19, 2009. Over time, Frazier was treated at Moffitt on thirteen occasions (Complaint¶¶43-45). Despite this treatment, his left arm was amputated on February 2, 2010, at Moffitt, and the cancer metastasized to his lungs by June 1, 2011 (Complaint ¶¶48-49). Frazier died September 18, 2011 (Complaint ¶51).1
II. Argument
A. Dismissal Standard
Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." "[T]he pleading standard does not require 'detailed factual allegations,' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Mere "labels and conclusions" or "a formulaic recitation of the elements of a cause of action" are insufficient. Iqbal at 678 (citations and internal quotation marks omitted). "Nor does a complaint suffice if it tenders 'naked assertion[s]' devoid of 'further factual enhancement.'" Id. (citing Bell Atl. Corp., 550 U.S. at 557).
Federal Rule of Civil Procedure 12(b)(6) permits dismissal when a complaint fails to state a claim upon which relief can be granted. "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
1
According to the Sheriff’s Office, Frazier was not in the jail from January 25, 2010 to July 29, 2010. See
http://www.manateesheriff.com/public interest/ArrestInquiry.aspx -
on its face." Iqbal, 556 U.S. at 678 (citations and internal quotation marks omitted). A complaint states a facially plausible claim for relief "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. (citation omitted). The complaint must establish "more than a sheer possibility that a defendant has acted unlawfully." Id.; see also Bell Atl. Corp., 550 U.S. at 555 (stating that "[f]actual allegations must be enough to raise a right to relief above the speculative level"). This inquiry is a "context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Iqbal, 556 U.S. at 679.
B. The Complaint fails to state a constitutional claim.
To state a prisoner section 1983 claim, a complaint must contain allegations of deliberate indifference. The deliberate indifference showing requires allegations that the inmate suffered an objectively serious medical need, and the defendants intentionally disregarded that need. See Farmer v. Brennan, 511 U.S. 825, 833-38, (1994); Estelle v. Gamble, 429 U.S. 97, 106 (1976); Hill v. Dekalb Regional Youth Detention Center, 40 F.3d 1176, 1191 n.28 (11th Cir. 1994) (recognizing that Supreme Court has defined "deliberate indifference" as requiring more than mere negligence and has adopted a "subjective recklessness" standard from criminal law). A serious medical need is one that has been diagnosed by a physician as needing treatment or one for which even a layperson would recognize the need for a doctor's care. See Henderson v. Sheahan, 196 F.3d 839, 846 (7th Cir.1999); Aswegan v. Henry, 49 F.3d 461, 464 (8th Cir.1995) (stating that a serious medical need is one obvious to layperson or supported by medical evidence, like physician's diagnosis).
Because Corizon is a corporation, liability only attaches if an official unconstitutional policy or custom of the corporation causes the alleged deprivation of constitutional rights. See
Monell, at 691; Buckner v. Toro, 116 F.3d 450 (11th Cir.1997) (extending the application of Monell to private corporations performing traditional public functions); Marsh v. Butler County, 268 F.3d 1014, 1027 (11th Cir.2001) (en banc) (stating that a county is "liable under section 1983 only for acts for which [the corporation] is actually responsible"). “A policy is a decision that is officially adopted by the [corporation], or created by an official of such rank that he or she could be said to be acting on behalf of the [corporation]. . . . A custom is a practice that is so settled and permanent that it takes on the force of law.” Sewell v. Town of Lake Hamilton, 117 F.3d 488, 489 (11th Cir. 1997). “To establish a policy or custom, it is generally necessary to show a persistent and widespread practice. Moreover, actual or constructive knowledge of such customs must be attributed to the governing body of the [corporation].” Depew v. City of St. Mary's, 787 F.2d 1496, 1499 (11th Cir. 1986).
While a corporation may be liable for deliberate indifference regarding medical care, claims of negligence are never enough to satisfy pleading requirements, as “should haves” are not grist for constitutional litigation. Due process prohibits jail officials from exhibiting deliberate indifference to prisoners' serious medical needs, but the Supreme Court has stated that "a complaint that a physician has been negligent in diagnosing or treating a medical condition does not state a valid claim of medical mistreatment under the Eighth Amendment." Id. at 106; Adams v. Poag, 61 F.3d 1537, 1543 (11th Cir. 1995). In Estelle v. Gamble, 429 U.S. 97, 104 (1976), the court reinstated the district court's dismissal of a prisoner's section 1983 complaint for failure to state a claim. Recognizing that the plaintiff’s primary claim was that "more should have been done" to diagnose and treat a back injury, the Court explained, "[a] medical decision not to order an X-ray, or like measures, does not represent cruel and unusual punishment. At most it is medical malpractice." Id. at 107. “There is no liability for ‘an official's failure to
alleviate a significant risk that he should have perceived but did not . . . .’” Cottrell v. Caldwell, 85 F.3d 1480, 1491 (11th Cir. 1996) (quoting Farmer, 511 U.S. at 838); see Haley v. Gross, 86 F.3d 630, 641 (7th Cir. 1996) (holding that “negligence on the part of an official does not violate the Constitution, and it is not enough that he or she should have known of a risk”); Gibson v. County of Washoe, Nevada, 290 F.3d 1175, 1188 (9th Cir. 2002).
The pleadings here run afoul of the minimums required for cases of this type. For three reasons, the Complaint should be dismissed.
First, the Complaint provides no clarity and is unclear what medical need went untreated. The best Corizon can conjure is that its employees should have diagnosed Frazier’s cancer or sent him to specialists in a more timely manner. However, the Complaint is unclear. According to current pleading standards, this allegation is required.
Second, Frazier “ ‘received some medical attention and the dispute is over the adequacy of the treatment.’ “Graham ex rel. Estate of Graham v. County of Washtenaw, 358 F.3d 377, 385 (6th Cir.2004) (quoting Westlake v. Lucas, 537 F.2d 857, 860 n. 5 (6th Cir.1976)). In such a situation, “ ‘federal courts are generally reluctant to second guess medical judgments and to constitutionalize claims that sound in state tort law.’ “ Id. (quoting Westlake, 537 F.2d at 860 n. 5). The issue presented in the Complaint boils down to whether additional treatment should have been provided for his complaints, but this is not an issue with which courts should become entangled, as whether medical professionals “should have employed additional diagnostic techniques or forms of treatment is a classic example of a matter for medical judgment and therefore not an appropriate basis for grounding liability under the Eighth [or Fourteenth] Amendment.” Adams v. Poag, 61 F.3d 1537, 1545 (11th Cir.1995) (internal quotation omitted).
Third, Corizon cannot be liable on allegations its employees may have violated Frazier’s constitutional rights. See Bd. of County Comm'rs of Bryan County v. Brown, 520 U.S. 397, 403, (1997) (rejecting vicarious liability in section 1983 cases). Rather, as has been shown, Corizon can be held liable only for establishing a “policy” or “custom” that was the “moving force” the claimed injuries. Id. at 403-04 (internal quotation marks omitted). Nothing in the Complaint identifies any Corizon custom or policy causing injury, and that omission requires dismissal. See Grech v. Clayton County, Ga., 335 F.3d 1326, 1330 (11th Cir. 2003); see also Arnold v. Bd. of Educ., 880 F.2d 305, 310 (11th Cir. 1989) (stating that "[t]ypically, Rule 8 is applied more rigidly to allegations of conspiracy and absolute immunity, and to claims plead against a local government that the challenged conduct constitutes its official policy or custom").
C. The statute of limitations bars all claims arising prior to September 16, 2009. The limitations period for section 1983 claims are governed by the forum state's residual personal injury statute of limitations. See Owens v. Okure, 488 U.S. 235, 249-50 (1989); Wilson v. Garcia, 471 U.S. 261, 276 (1985). Specifically, a plaintiff must commence a section 1983 claim arising in Florida within four years of the allegedly unconstitutional act. See Baker v. Gulf & Western Indus., Inc., 850 F.2d 1480, 1483 (11th Cir.1988).
The Complaint was filed in state court on September 16, 2013. Paragraphs 12-20 describe medical requests and care provided to Frazier during the period before September 16, 2009, which is outside the four-year limitations period. While the complaint is unclear as to whether the claim is based on actions or alleged failures during this period, to the extent the claim is based in this period, it must be dismissed on limitations grounds.
D. “John Doe” pleadings are pointless.
Count III of the Complaint is a section 1983 claim against “John(s)/Jane Doe(s).” Pleading a claim in this manner is purposeless. “John Doe” pleadings do not extend the statute of limitations against potential parties, as the Eleventh Circuit has held that the substitution of a party for a “John Doe” is not a substitution in the legal sense, but an actual change in parties. See Wayne v. Jarvis, 197 F.3d 1098, 1102-03 (11th Cir. 1999), overruled on other grounds, Manders v. Lee, 338 F.3d 1304 (11th Cir. 2003) (citing Barrow v. Wethersfield Police Dep't, 66 F.3d 466, 468 (2d Cir. 1995) (recognizing that "[w]e have stated that it is familiar law that 'John Doe' pleadings cannot be used to circumvent statutes of limitations because replacing a 'John Doe' with a named party in effect constitutes a change in the party sued"), modified, 74 F.3d 1366 (2d Cir.1996); Cox v. Treadway, 75 F.3d 230, 240 (6th Cir.1996) (holding that "[s]ubstituting a named defendant for a 'John Doe' defendant is considered a change in parties, not a mere substitution of parties")).
The Plaintiff is free to bring claims against additional defendants when and if they are identified, so long as those claims are brought within the statute of limitations. Using a fictional name does not alter this ability, but is instead a purposeless act.
III. Conclusion
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 6th day of November, 2013, I electronically filed the foregoing with the Clerk of the Court by using the CM/ECF System, which will send the foregoing to the following:
William N. Hutchinson, Jr., P.A.
Attorneys for Plaintiff
514 Southeast Seventh Street Fort Lauderdale, FL 33301 Phone: 954.764-0588
Email: [email protected]
Gary S. Elsinger
Attorneys for Defendant Manatee County Sheriff’s Office
PURDY, JOLLY, GIUFFREDA & BARRANCO, P.A.
2455 East Sunrise Blvd., Suite 1216 Fort Lauderdale, FL 33304
Phone: 954.462.3200 Fax: 954.462.3861
Email: [email protected]
BUNNELL & WOULFE P.A.
Attorneys for Defendant Corizon Health, Inc. 1625 Hendry Street, Suite 203
Fort Myers, Florida 33901 Tel: 239-337-1630 Fax: 239-337-0307
Email: [email protected]
By: /s/Gregg A. Toomey Gregg A. Toomey Florida Bar No. 159689
