United States District Court, S.D. Florida
LITITA HINSON, as personal representative of the Estate of RICHARD HASTON, deceased, Plaintiff,
JAMES WARREN, in his individual capacity and WILLIAM D. SNYDER, as Sheriff of MARTIN COUNTY SHERIFF'S OFFICE, Defendants.
OPINION AND ORDER
KENNETH A. MARRA United States District Judge.
cause is before the Court upon the Motion for More Definite
Statement/Motion to Dismiss Defendant of William D.
Snyder's, as Sheriff of Martin County. (DE 9). The Court
has carefully considered the Motion and is otherwise fully
advised in the premises.
Lititia Hinson (“Plaintifff”), as personal
representative of the estate of Richard Haston
(“decedent”), brings a six-count Third Amended
Complaint (“TAC, ” DE 1-2) against Defendants
James Warren (“Warren”) and Defendant William D.
Snyder, as Sheriff of Martin County (“Sheriff”)
(collectively, “Defendants”) for wrongful death
(count one); a violation of the fourth and fourteenth
amendment pursuant to 42 U.S.C. §1983 for excessive
force by Warren (count two); a violation of the fourth and
fourteenth amendment pursuant to 42 U.S.C. §1983 for
deliberate indifference by the Sheriff (count three); a
violation of the fourth and fourteenth amendment pursuant to
42 U.S.C. §1983 for supervisory liability against the
Sheriff (count four); negligent hiring by the Sheriff (count
five) and negligent retention by the Sheriff (count six).
claims arise out of allegations involving the police shooting
and killing of decedent.
Sheriff moves to dismiss and for a more definite statement,
claiming that the negligent hiring and retention claims
should be subsumed into the wrongful death claim.
Additionally, the Sheriff contends that the separate section
1983 counts (counts three and four) should be combined into
responds that the negligent hiring and retention claims do
not arise out of the same actions that caused decedent's
death, and therefore these counts should proceed separately
from the wrongful death count. With respect to counts three
and four, Plaintiff concedes that they should be merged into
8(a)(2) of the Federal Rules of Civil Procedure requires
“a short and plain statement of the claim showing that
the pleader is entitled to relief.” Fed.R.Civ.P.
8(a)(2). 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).
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).
Sheriff seeks to subsume the state law negligent hiring and
retention claims into the state wrongful death claim. The
Florida state wrongful death statute provides that
“[w]hen a personal injury to the decedent results in
death, no action for the personal injury shall survive, and
any such action pending at the time of death shall
abate.” Florida Statute § 768.20. In other words,
“when death is the result of a personal injury, the law
of Florida essentially substitutes a statutory wrongful death
action for the personal injury action . . . .”
Niemi v. Brown & Williamson Tobacco Corp., 862
So.2d 31, 33 (Fla. Dist. Ct. App. 2003).
question before the Court is whether the Florida wrongful
death statue abates the negligent hiring and retention
claims. There is ample case law providing that personal
injury claims seeking recovery for pain and suffering,
medical malpractice, battery and negligence must be abated
under Florida Statute § 768.20. See Cone v.
Orosa, No. 13-cv-24674-JLK, 2014 WL 1383028, at * 2-3
(S.D. Fla. Apr. 8, 2014) (battery and negligence);
Shehada v. Tavss, 965 F.Supp.2d 1358, 1378 (S.D.
Fla. 2013) (battery); Martin v. United Sec. Svcs.,
Inc., 314 So.2d 765, 770 (Fla. 1975) (pain and
suffering); Salfi v. Columbia/JFK Med. Ctr. Ltd.
Partnership, 942 So.2d 417, 420 (Fla. Dist. Ct. App.
2006) (pain and suffering); Taylor v. Orlando
Clinic, 555 So.2d 876, 879 (Fla. Dist. Ct. App. 1989)
Sheriff contends that because the TAC alleges that the
negligent hiring and retention of Warren allegedly caused the
death of decedent, these claims should be subsumed into the
wrongful death statute. In contrast, Plaintiff contends that
the factual allegations of these claims are “wholly
distinct” from the allegations of the wrongful death
action. (Resp. at 5.) A review of these claims shows that the
alleged negligent retention and hiring of Warren by the
Sheriff contributed to the death of decedent. (TAC ¶
¶ 115-117, 127-130.) Indeed, an element of both of these
claims require that the plaintiff show that “the
incompetence or unfitness [of the employee] was a proximate
cause of the plaintiffs injury.” Witover v.
Celebrity Cruises, Inc., 161 F.Supp.2d 1139, 1148 (S.D.
Fla. 2016); Davies v. Commercial Metals Co., 46
So.3d 71, ...