United States District Court, M.D. Florida, Jacksonville Division
JUDITH WALTON, as Personal Representative for the ESTATE OF FRANK SMITH, on behalf of the Estate and Survivor Judith Walton, Plaintiff,
FLORIDA DEPARTMENT OF CORRECTIONS, et al., Defendants.
J. DAVIS United States District Judge
is proceeding in this action as the personal representative
for the estate of Frank Smith, Plaintiff's son, who was
an inmate of the Florida penal system. Plaintiff, represented
by counsel, is proceeding on a Second Amended Complaint (Doc.
33; Complaint), asserting, on behalf of Smith's estate
and survivors, that Smith's constitutional rights were
violated while he was in custody of the Florida Department of
Corrections (FDOC). Plaintiff filed her original complaint on
September 6, 2016 (Doc. 1). Plaintiff names as defendants the
FDOC, Warden Barry Reddish, Nan Jeffcoat, Lt. Joseph Allen,
Capt. Wilfred Ellis, Capt. Shawn Swain, Lt. Terry Bacon, Sgt.
Rodney Criswell, Sgt. Brandi Griffis, Officer Brian Norman,
Officer Shalen Browning, Officer Michael Shaffer, and Officer
Dustin Hough. All Defendants except one have filed motions to
dismiss the Second Amended Complaint (Docs. 34, 35, 36;
Motions). Defendant Ellis, who recently filed an Answer (Doc.
41), has not moved to dismiss the Complaint. (Doc. 41).
Plaintiff has filed a response to the Motions (Doc.37;
Response), which are now ripe for review.
Motion to Dismiss Standard
ruling on a motion to dismiss, the Court must accept the
factual allegations set forth in the complaint as true.
Ashcroft v.Iqbal, 556 U.S. 662, 678 (2009);
Swierkiewicz v. Sorema N.A., 534 U.S. 506, 508 n.1
(2002); see also Lotierzo v. Woman's World Med. Ctr.,
Inc., 278 F.3d 1180, 1182 (11th Cir. 2002). In addition,
all reasonable inferences should be drawn in favor of the
plaintiff. See Omar ex. rel. Cannon v. Lindsey, 334
F.3d 1246, 1247 (11th Cir. 2003) (per curiam). Indeed,
“the tenet that a court must accept as true all of the
allegations contained in a complaint is inapplicable to legal
conclusions[, ]” which simply “are not entitled
to [an] assumption of truth.” Iqbal, 556 U.S.
at 678, 680. A plaintiff must meet some minimal pleading
requirements. Jackson v. BellSouth Telecomm., 372
F.3d 1250, 1262-63 (11th Cir. 2004) (citations omitted).
plaintiff must allege "enough facts to state a claim
that is plausible on its face." Bell Atlantic Corp.
v. Twombly, 550 U.S. 544, 570 (2007). “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.”
Iqbal, 556 U.S. at 678. A Court may properly dismiss
a complaint for failure to comply with the applicable
limitations period when “it is apparent from the face
of the complaint that the claim is time-barred.”
Baker v. City of Hollywood, 391 F. App'x 819,
820 (11th Cir. 2010) (citing La Grasta v. First Union
Secs., Inc., 358 F.3d 840, 845 (11th Cir. 2004)).
alleges Defendants deprived Smith of his constitutional
rights with respect to an incident that occurred on July 3,
2012. On that day, Smith was an inmate at Union Correctional
Institution (UCI), and officers were transporting him from a
hospital in Gainesville, FL, back to UCI. Complaint at 4.
According to Plaintiff, on July 3, 2012, officers used
excessive force against Smith both in the transport vehicle
and upon return to UCI (the movement center). Id. at
4, 6. Specifically, Plaintiff alleges that, during transport,
Defendant Criswell pulled the van to the side of the road
after Smith banged his head on the compartment divider and
kicked a window, breaking the glass. Id. at 4-5.
Defendant Criswell entered the van's passenger
compartment and then “used his Taser on Smith and
struck him repeatedly.” Id. at 6. Upon return
to the movement center, according to Plaintiff, Defendants
failed to properly care for Smith, failed to timely call
paramedics, and improperly moved Smith using a wheelchair
rather than a stretcher even though Smith was unconscious.
Id. at 7-9. Plaintiff further alleges that Smith was
“battered” while at the movement center.
Id. at 15. With respect to individual Defendants,
Plaintiff alleges some were directly involved in beating and
physically harming Smith, while others failed to intervene or
were deliberately indifferent to a history of abuse against
inmates and with respect to this particular incident.
Id. at 15-18.
paramedic allegedly concluded that Smith's injuries
appeared more consistent with a car accident victim or
someone who fell down a set of stairs. Id. at 9. As
a result of the use of force, “Smith received
paralyzing blunt force injuries to his head and neck.”
Unfortunately, Smith died two months later, on September 4,
2012, allegedly as a result of complications related to the
injuries. Id. at 4. The medical examiner's
autopsy revealed “multiple visible abrasions,
lacerations, edemas and contusions of the legs, groin,
midsection, and head.” Id. at 12. Smith's
cause of death was noted to be “complications of blunt
head injuries, ” which Plaintiff attributes directly to
the Defendants' acts or omissions on July 3, 2012.
Id. at 12.
asserts four counts, all arising out of the conduct alleged
to have occurred on July 3, 2012. Id. at 1. Counts I
through III assert claims under § 1983 for the violation
of Smith's constitutional rights. Count I alleges
excessive use of force and a failure to protect or intervene
as to Defendants Criswell, Hough, Schaffer, Allen, Norman,
Griffis, and Browning. Id. at 15. Count II alleges
deliberate indifference as to Defendants Reddish, Jeffcoat,
Ellis, Swain, Allen, and Bacon. Id. at 17. Count III
alleges conspiracy to deprive Smith of his constitutional
rights as to all Defendants. Id. at 19. Count IV
alleges violations of the ADA and Rehabilitation Act as to
Defendant FDOC, alleging Smith was disabled and Defendant
FDOC failed to provide reasonable accommodations for Smith,
which resulted in his injury and death. Id. at
respect to the conspiracy claim, Plaintiff alleges
Defendants conspired to beat Smith, who allegedly
suffered from an unspecified mental illness. Id. at
4, 19. According to Plaintiff, Defendants not only conspired
to harm Smith, but agreed to an elaborate plan to delay
medical treatment, delay disclosure of the incident to
investigators, hide or destroy evidence, and to conceal any
wrongdoing. Id. at 19. The denial of immediate
medical care allegedly “exposed [Smith] to undue
suffering and an untimely and unnecessary death.”
Id. at 12. Plaintiff alleges the FDOC investigator
first learned of the incident about five to six hours after
it happened. Plaintiff maintains that Smith lost
consciousness at some point on the day of the incident,
id., though, apparently while he was conscious,
“[t]he officers involved in the force . . . threatened
Smith with severe injury or death if he told what
happened.” Id. at 11. As relief, Plaintiff
seeks damages on behalf of Smith's estate and on behalf
of the survivors for their loss of support and pain and
suffering resulting from Smith's death.
Defendants' Motions and Plaintiff's Response
assert various defenses: failure to state a claim, qualified
immunity, application of the intracorporate conspiracy
doctrine, and failure to timely file the Complaint within the
applicable statute of limitations. See Motions. With
respect to the statute of limitations defense, Defendants
maintain the applicable four-year statute of limitations
accrued on the date of the incident, July 3, 2012. According
to Defendants, the filing of the original complaint on
September 6, 2016, falls well outside the statutory period.
See Doc. 34 at 13; Doc. 35 at 5; Doc. 36 at
Some Defendants also assert that Florida law bars
Plaintiff's claims because the injuries to Smith resulted
in his death. Under Florida law, claims for injuries
resulting in death do not survive; instead, when death
results, a distinct cause of action may proceed in favor of
the survivors, as a wrongful death claim. See Motion
(Doc. 35) at 4-5.
response to the statute of limitations defense, Plaintiff
agrees that her claims are governed by a four-year statutory
period, but maintains that the accrual date is Smith's
date of death, which was September 4, 2012,  citing Florida
law. Response at 14. Plaintiff also asserts that she is
entitled to application of the “delayed
discovery” doctrine under Florida law. Id. at
15. Plaintiff does not address why Smith's date of death
governs the accrual of the action and only responds to
Defendants' asserted accrual date in a footnote, saying
that the Defendants' “theory has no possible
justification.” Id. at 14 n.6.
Law and Conclusions
argument with respect to the accrual date indeed has
justification, at least as to Counts I, II, and IV. As a
preliminary matter, the parties do not dispute that a
four-year limitations period, imported from Florida law as
the forum state, governs the claims. See Doc. 34 at
13; Doc. 35 at 5; Doc. 36 at 8; Response at 14. The Supreme
Court has held that because § 1983 does not set forth a
limitations period, the courts are to adopt the forum
state's residual personal injury statute of limitations.
Owens v. Okure, 488 U.S. 235, 236 (1989) (stressing
a goal of consistency and recognizing that “narrow
analogies” to state law bred confusion and
inconsistency in the application of the federal law); see
also Wallace v. Kato, 549 U.S. 384, 387 (2007). The ADA
also does not identify a limitations period; thus,
Florida's four-year statutory period applies. Silva
v. Baptist Heath So. Fla., Inc., 856 F.3d 824, 841 (11th
Cir. 2017) (citing Fla. Stat. § 95.11(3)).
1983 and the ADA are silent as to whether a person's
claims survive death. Thus, federal courts apply state
substantive law to the extent necessary to “fill a gap,
” per the federal statutory framework provided by
§ 1988. See Robertson v. Wegmann, 436 U.S. 584,
588 (1978) (recognizing that, when federal statutes are
insufficient in addressing specific remedies, the applicable
forum state's laws are imported to the extent not
inconsistent with federal laws); United States v. NEC
Corp., 11 F.3d 136, 137, 139 (11th Cir. 1993)
(recognizing that claims based on remedial statutes survive
death where the forum state's law permits recovery for
wrongful death); see also Brazier v. Cherry, 293
F.2d 401, 408-09 (5th Cir. 1961).
1988 provides the following:
The jurisdiction in civil and criminal matters conferred on
the district courts . . . for the protection of all persons
in the United States in their civil rights, and for their
vindication, shall be exercised and enforced in conformity
with the laws of the United States, so far as such laws are
suitable to carry the same into effect; but in all cases
where they are not adapted to the object, or are deficient in
the provisions necessary to furnish suitable remedies and
punish offenses against law, the common law, as modified and
changed by the constitution and statutes of the State wherein
the court having jurisdiction of such civil or criminal ...