United States District Court, M.D. Florida
GREGORY A. PRESNELL UNITED STATES DISTRICT JUDGE
matter comes before the Court on Defendant Clairmont's
Motion to Dismiss (Doc. 31); Defendant Evans' Motion to
Dismiss (Doc. 32); the Motion to Dismiss filed by Defendants
Buck, Gonzalez, Harter, and Orange County (“Collective
Motion”) (Doc. 33); the Response in Opposition filed by
the Plaintiffs (Doc. 40); and the Reply filed by Defendants
Buck, Gonzalez, Harter, and Orange County (Doc. 41).
Facts as Alleged in the Complaint
his arrest on August 6, 2015, Max Gracia, Jr. (“the
Decedent”) suffered dog bite wounds to his hands and
legs. Amend. Compl., Doc. 29, ¶ 21. Although the
Decedent received multiple dog bites on both his hands and
legs, at least some of which were severe, the Plaintiffs do
not seek any relief with respect to the initial dog bite
injuries themselves. The Decedent received some treatment for
those wounds at Orange County Regional Medical Center, and
later on the day of his arrest, the Decedent was admitted to
the Health Services Department, also known as Corrections
Health Services (“CHS”) of Orange County
Corrections (“OCC”). Id.
Decedent's injuries resulted in an assignment to the
Infirmary as his housing unit at OCC. Id. ¶ 22.
Around the time of his admission to the Infirmary, Defendant
Robert Buck III, M.D. (“Buck”) evaluated the
Decedent and noted that he “had multiple dog bites with
severe flesh involvement.” Id. In addition to
diagnosing multiple dog bites, Buck put the Decedent back on
his seizure medication, prescribed antibiotics and pain
medications, including ibuprofen and Tylenol #3, and noted
that, upon verification that the Decedent “had been
compliant in the community, ” Atripla should be
ordered. Id. ¶ 22-23. Buck did not order
Atripla for the Decedent, and according to the Plaintiffs,
“Buck never saw or inquired about [the Decedent]
again.” Id. ¶ 23. A summary of what
happened to the Decedent next, based on the facts alleged in
the Amended Complaint, follows.
August 7, 2015, the Decedent's “wounds were cleaned
and dressed” by Defendant Elsa Galloza-Gonzalez
(“Gonzalez”). Id. ¶ 25. At that time,
at least one of his wounds was “reddened with scant
serosanguineous drainage present.” Id. At some
point on the same day, Defendant Karen Clairmont
(“Clairmont”) allegedly saw the Decedent, but did
not obtain his vital signs or perform any physical
assessment. Id. ¶ 26.
August 8, 2015, the Decedent was educated about the risk of
infection and was told to increase his fluid
intake. Id. ¶ 27. The Decedent's
wound dressing was changed, and Gonzalez again noted that the
wound on his left leg was “reddened with scant
serosanguineous drainage.”Id. ¶ 28. The
Decedent vomited twice, and no vital signs were taken, but
the Decedent was later given odansetron. Although the
wound was reddened and the Decedent complained of vomiting,
Gonzalez recorded that he showed “no signs or symptoms
of infection.” Id. ¶ 28, 29.
August 9, 2015, at 6:35 AM, the dressing on the
Decedent's left leg wound was changed. The wound was
reddened and had “a large amount of bloody
drainage.” Id. ¶ 30. The Decedent
complained of dizziness and weakness, and at some point that
morning, his vital signs were taken for the first time in
fifty-five hours, revealing tachycardia of 131 and a
respiratory rate of 22. Id. ¶ 32. In response
to his abnormal vital signs, Evans ordered an increased fluid
intake. Id. The Decedent's vital
signs were never taken again. Id. At 9:00 PM, the
Decedent twisted and moaned loudly in bed, said that he
“can't do it, ” and fell to the
ground. Id. ¶ 37. At some point
prior to 9:54 PM, the Decedent “refused to get up for
his evening medications.” Id. ¶ 33.
around 11:16 PM on August 9, 2015, an officer and two
supervisors came to transfer the Decedent to a different
housing unit. Id. ¶ 35. At the time, the
Decedent was unresponsive, groaning lethargically, and laying
on the floor. Id. Clairmont was present and told the
officers that he was “‘faking or exaggerating his
medical condition and inability to get up.'”
Id. The officer and two inmate workers physically
moved the Decedent to a cell with a recording camera, in
order to “‘ascertain the validity of his
proclaimed illnesses.'” Id. The Decedent
was documented as compliant. Id. However, a
disciplinary report was filed against the Decedent because he
“refus[ed]” to follow orders in connection with
the transfer; instead, the Decedent lay on his back on the
floor and “refus[ed] all
treatment.” See Id. ¶ 38.
August 10, 2015, at 2:58 AM, a corrections investigator tried
to “interrogate” the Decedent with respect to the
disciplinary report. Id. ¶ 36. The Decedent was
unable to reply to the corrections investigator. Id.
approximately 5:15 AM, an officer informed Clairmont that the
Decedent was not breathing. Id. ¶ 39.
Clairmont observed the Decedent on his back in bed, with no
pulse or respirations; at that time, efforts to revive the
Decedent began and continued until EMS arrived and
transported the Decedent at 5:48 AM. Id. At 6:09 AM,
the Decedent was pronounced deceased at Orlando Regional
Medical Center. Id. ¶ 40. An Autopsy Report
concluded that the manner of his death was homicide, due to
his incarceration, and that the cause of death was
“septic shock complicating infected dog bite
wounds” with HIV as a contributory factor. Id.
September 18, 2017, the Plaintiffs filed the Amended
Complaint. Doc. 29. Count I alleges a § 1983 claim
against Orange County, Count II alleges a § 1983 claim
against Buck, Count III alleges a § 1983 claim against
Evans, Count IV alleges a § 1983 claim against
Clairmont, Count V alleges a § 1983 claim against
Gonzalez, Count VI alleges a § 1983 claim against
Harter, and Count VII alleges a medical malpractice claim
against Orange County.
Clairmont and Evans each filed individual motions to dismiss
on October 2, 2017. Docs. 31, 32. That same day, Defendants
Orange County, Buck, Gonzalez, and Harter filed a collective
motion to dismiss (“Collective Motion”). Doc. 33.
The Plaintiffs filed a Response on October 31, 2017, and
Defendants Orange County, Buck, Gonzalez, and Harter filed a
collective Reply on November 15, 2017. Docs. 40, 43.
Standard of Review
ruling on a motion to dismiss, the Court must view the
complaint in the light most favorable to the Plaintiff,
see, e.g., Jackson v. Okaloosa County, Fla., 21 F.3d
1531, 1534 (11th Cir. 1994), and must limit its consideration
to the pleadings and any exhibits attached thereto.
See Fed. R. Civ. P. 10(c); see also GSW, Inc. v.
Long County, Ga., 999 F.2d 1508, 1510 (11th Cir. 1993).
The Court will liberally construe the complaint's
allegations in the Plaintiff's favor. See Jenkins v.
McKeithen, 395 U.S. 411, 421 (1969). However,
“conclusory allegations, unwarranted factual deductions
or legal conclusions masquerading as facts will not prevent
dismissal.” Davila v. Delta Air Lines, Inc.,
326 F.3d 1183, 1185 (11th Cir. 2003).
reviewing a complaint on a motion to dismiss under Federal
Rule of Civil Procedure 12(b)(6), “courts must be
mindful that the Federal Rules require only that the
complaint contain ‘a short and plain statement of the
claim showing that the pleader is entitled to relief.'
” U.S. v. Baxter Intern., Inc., 345 F.3d 866,
880 (11th Cir. 2003) (citing Fed.R.Civ.P. 8(a)). This is a
liberal pleading requirement, one that does not require a
plaintiff to plead with particularity every element of a
cause of action. Roe v. Aware Woman Ctr. for Choice,
Inc., 253 F.3d 678, 683 (11th Cir. 2001). However, a
plaintiff's obligation to provide the grounds for his or
her entitlement to relief requires more than labels and
conclusions, and a formulaic recitation of the elements of a
cause of action will not do. Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 554-555 (2007). The
complaint's factual allegations “must be enough to
raise a right to relief above the speculative level, ”
id. at 555, and cross “the line from
conceivable to plausible.” Ashcroft v. Iqbal,
556 U.S. 662, 680 (2009).
survive a motion to dismiss based upon qualified immunity,
the plaintiff must have alleged sufficient facts to support a
finding of a constitutional violation of a clearly
established law.” Chandler v. Sec'y of Florida
Dep't of Transp., 695 F.3d 1194, 1198 (11th Cir.
2012). Otherwise, qualified immunity protects government
officials who were acting within their discretionary
authority. Franklin v. Curry, 738 F.3d 1246, 1249
(11th Cir. 2013). There is no dispute as to whether the
Defendants were acting within the scope of their
discretionary authority, nor is there a dispute as to
whether, if the Defendants did in fact violate the
Decedent's constitutional rights, those constitutional
rights were clearly established at the time of the
violations. Accordingly, the sole question before the Court
on the matter of qualified immunity is whether the Plaintiffs
have alleged the violation of a constitutional right.
for relief under § 1983 requires that the Plaintiff
allege a “deprivation of an actual constitutional
right.” McElligott v. Foley, 182 F.3d 1248,
1254 (11th Cir. 1999). “It is well settled that the
deliberate indifference to serious medical needs of
prisoners” constitutes a violation of the Eighth
Amendment. Id. (internal quotation marks omitted).
Therefore, to establish a claim in this context under §
1983, the Plaintiff must allege (1) a serious medical need,
(2) deliberate indifference to that need by the Defendants,
and (3) a causal connection between Defendant's
deliberate indifference and Plaintiff's injuries. See
Hatten v. Prison Health Services, Inc., 2006 WL 4792785
(M. D. Fla. Sept. 13, 2006). For purposes of the Motions to