United States District Court, M.D. Florida, Orlando Division
CAROLYN HOWARD, HEIDI HAYE, SONYA SMITH, and WILLIAM HOWARD, JR., Plaintiffs,
RICHARD WILKINSON, RICHARD LEBLANC, RYAN WILSON, JAMES NELSON, JUAN PADILLA, PENELOPE GRAY, NANCY MENDOZA, RODNEY MARTIN, ANDREA DISTIN-CAMPBELL and ORANGE COUNTY FLORIDA, Defendants.
G. BYRON JUDGE
cause comes before the Court on the following:
1. Defendant Orange County, Florida's, Motion to Dismiss
Count Ten of Plaintiff's Complaint (Doc. 23), filed
October 2, 2017;
2. Plaintiffs' Response to Defendant Orange County,
Florida's Motion to Dismiss (Doc. 40), filed October 16,
3. Defendants Penelope Gray, Nancy Mendoza, Andrea
Distin-Campbell, and Rodney Martin's Motion to Dismiss
Parties and Counts Six, Seven, Eight, and Nine of the
Complaint (Doc. 41), filed October 17, 2017;
4. Plaintiffs' Response to Defendants' Motion to
Dismiss Counts Six Through Nine of the Complaint (Doc. 46),
filed October 31, 2017;
5. Officer-Defendants Richard Wilkinson, Richard Leblanc,
Ryan Wilson, James Nelson, and Juan Padilla's Motion to
Dismiss (Doc. 44), filed October 24, 2017;
6. Plaintiffs' Response to Defendants Wilkinson, Leblanc,
Wilson, Nelson, and Padilla's Motion to Dismiss (Doc.
47), filed November 7, 2017; and
7. Officer-Defendants' Reply to Plaintiffs' Response
to Their Motion to Dismiss (Doc. 50), filed November 27,
briefing complete, the matter is ripe for review.
action centers on the death of William Howard (“Mr.
Howard”). Mr. Howard died from injuries sustained while
in the custody of correctional officers at the Orange County
Jail (or the “Jail”), who broke Mr. Howard's
neck while relocating him to a different cell within the
Jail. His injuries went untreated for more than twenty-four
hours, and at 9:10 a.m. on November 20, 2016, Mr. Howard was
pronounced dead. His family brought this action, claiming
wrongful death and § 1983 claims for Fourteenth
Amendment violations, against Orange County, Florida, and
various Jail employees. Defendants deny any responsibility.
events leading to Mr. Howard's death began on November
16, 2016. On that day, Mr. Howard suffered a mental
breakdown, when he returned home from an out-of-state funeral
for his niece and her three children, who were brutally
murdered. (Doc. 1, ¶ 17.) A domestic dispute unfolded
and Mr. Howard was arrested for domestic violence and taken
to the Orange County Jail. (Id.)
Howard was seventy-five years old at the time, and his
initial medical screening at the Jail revealed that he had
glaucoma. (Id. ¶ 18.) He was first placed in a
standard cell for detainees, but was moved to a suicide
prevention cell on November 18, 2016, after nurses observed
him in an “agitated” state wandering around his
cell. (Id. ¶¶ 19- 20.) At 12:20 p.m., a
licensed psychologist assessed Mr. Howard, and documented
that he was disoriented, had an incoherent thought process,
and was suffering from memory problems. (Id. ¶
21.) Specifically, the psychologist described him as
“very confused, and unable to answer questions in a
reality based manner.” (Id. ¶ 22.) Jail
staff decided to return Mr. Howard to a psychological
observation cell. (Id. ¶ 23.)
10:50 p.m., the Officer Defendants arrived to transport Mr.
Howard. (Id. ¶¶ 23- 24.) Gathering outside
the cell, one officer mentioned to the others that Mr. Howard
was “blind.” (Id. ¶ 25.) After
ordering him to approach the cell door to be handcuffed, the
Officer Defendants banged loudly on the cell door to alert
Mr. Howard as to the door's location. (Id.
¶¶ 24-25.) Mr. Howard failed to approach the door
in response, so Defendant Padilla determined that force was
necessary to remove him. (Id. ¶ 26.) They
summoned Defendant Nelson to film the use of force.
(Id. ¶ 27.)
entering the cell, Defendant Padilla ordered Defendant Wilson
to spray Mr. Howard with Oleoresin Capsicum (“pepper
spray”). (Id. ¶ 28.) Defendant Wilson
complied, pepper spraying Mr. Howard in the face through an
opening in the cell door. (Id.) Coupled with his
glaucoma, the pepper spray blinded Mr. Howard. (Id.
¶ 29.) Mr. Howard initially began to approach the cell
door, but retreated amid the confusion. (Id. ¶
30.) The Officers then entered the cell, where Mr. Howard was
cowering in the corner. (Id. ¶ 32.) The
officers then bombarded Mr. Howard with commands, one yelling
“Don't move!” while another ordered,
“put your hands behind your back!” (Id.
the Officers grabbed Mr. Howard and pinned him against the
wall. (Id. ¶ 34- 35.) They did not handcuff
him. Instead, the Officers then ripped Mr. Howard from the
wall and slammed him down head first into the concrete floor,
breaking his neck. (Id. ¶ 35.) They handcuffed
him while he lay prostrate on the ground, and four Officers
then grabbed and carried Mr. Howard to the psychological
observation cell. (Id. ¶¶ 38-39.) While
the Officers lugged his body, they let his head dangle
beneath his shoulders without support. (Id. ¶
39.) He could not hold it up on his own. (Id.) After
arriving at the new cell, the Officers stripped Mr. Howard
and left him naked on the floor. (Id. ¶ 40.)
Upon completing the operation, Defendant Padilla
congratulated the other officers on their work, telling them
“good job.” (Id. ¶ 41.)
personnel at the Jail did not perform a medical assessment or
treat Mr. Howard's injuries for more than twenty-four
hours following the use of force, despite being on notice of
the use of force, numerous pain complaints, and behavior
indicating Mr. Howard was injured. (Id. ¶ 42.)
The Nurse Defendants did, however, view and make perfunctory
assessments of Mr. Howard in the hours following his
injuries. (Id. ¶ 43.) Defendant Martin was the
registered nurse on duty at the Jail on the night of the use
of force event. (Id. ¶ 49.) She was aware of
the use of force, but did not perform or order a medical
assessment of, or treatment for, Mr. Howard. (Id.)
Defendant Mendoza visited Mr. Howard's cell twice in the
immediate aftermath and noted that he was restless and
allegedly pacing. (Id. ¶ 44.) The following
morning, Defendant Mendoza observed Mr. Howard rolling side
to side on the cell floor. (Id. ¶ 45.)
Defendant Mendoza took no substantive action. Later that
morning, Defendant Gray visited Mr. Howard's cell three
times, observing him laying prone on the floor, complaining
of neck and back pain. (Id. ¶ 46.) Defendant
Gray returned in the late afternoon, documented Mr.
Howard's continued neck and back pain complaints, and
noted that he could move his extremities and turn his head.
(Id. ¶ 47.) Again, no further action was taken.
That evening, Defendant Distin-Campbell visited Mr.
Howard's cell and observed him laying supine in his bunk.
(Id. ¶ 48.)
p.m., a correctional officer found Mr. Howard unresponsive in
his cell. (Id. ¶ 50.) He was taken to Orlando
Regional Medical Center in critical condition, and pronounced
the dead the following morning. (Id. ¶¶
51-52.) An autopsy determined that Mr. Howard's cause of
death was blunt force impact resulting in neck fracture with
cervical spinal cord trauma and hypoxic encephalopathy.
(Id. ¶ 53.) The medical examiner ruled Mr.
Howard's death a homicide. (Id.) Following this
ruling, Plaintiff brought this action.
Complaint proceeds in thirteen Counts. Counts I through IV
allege 42 U.S.C. § 1983 claims for excessive use of
force against the Officer Defendants (apart from Defendant
Nelson). Count V brings a § 1983 excessive force claim
against Defendant Nelson-who filmed the use of force
incident-premised on Defendant Nelson's deliberate
indifference to the excessive use of force. Counts VI through
IX assert § 1983 claims against the Nurse Defendants for
their deliberate indifference to Mr. Howard's serious
medical needs. Count X alleges a municipal liability claim
against Orange County, Florida, for delegating final
policymaking authority to the Nurse Defendants. Counts XI
through XIII aver wrongful death claims against Orange County
premised on (XI) battery, (XII) negligent hiring and
retention, and (XIII) negligence.
Defendants have separately moved to dismiss. (Docs. 23, 41,
STANDARD OF REVIEW
12(b)(6) motion to dismiss tests the legal sufficiency of the
plaintiff's complaint. To survive the motion, the
complaint must “state a claim to relief that is
plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). A claim is plausible
on its face when the plaintiff alleges enough facts to
“allow the court to draw the reasonable inference
that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). The mere recitation of the elements of a claim is not
enough, and the district court need not give any credence to
legal conclusions that are unsupported by sufficient factual
material. Id. District courts must accept all
well-pleaded allegations within the complaint and any
documents attached thereto as true and must read the
complaint in the light most favorable to the plaintiff.
Hunnings v. Texaco, Inc., 29 F.3d 1480, 1484 (11th
Cir. 1994) (per curiam).
Orange County, ...