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S.K. v. Lutheran Services Florida, Inc.

United States District Court, M.D. Florida, Fort Myers Division

May 7, 2018

S.K., Plaintiff,
v.
LUTHERAN SERVICES FLORIDA, INC., CHILDREN'S NETWORK OF SOUTHWEST FLORIDA, L.L.C., CAMELOT COMMUNITY CARE, INC., PEARL ARAQUE, individually, GWENDOLYN DOYLE, individually, and UNA RICHARDSON, individually, Defendants.

          OPINION AND ORDER

          JOHH E. STEELE SR UNITED STATES DISTRICT JUDGE

         This matter comes before the Court on Motions to Dismiss for Failure to State a Claim filed by Defendants Children's Network of Southwest Florida, LLC (CNSF) and Camelot Community Care (CCC) (Doc. #25); Lutheran Services Florida, Inc. (LSF) (Doc. #27); Pearl Araque (Doc. #28); and Gwendolyn Doyle (Doc. #37). Plaintiff has responded to each motion (Docs. ##33, 35, 36, 40). For the reasons set forth below, the Motions are granted in part and denied in part.

         I.

         At all relevant times, plaintiff, S.K., was a minor foster child within the custody of the State of Florida. S.K. alleges that defendants failed to provide him with adequate dental care and treatment, resulting in severe, life-long injuries. The nine-count Amended Complaint alleges both common law negligence and culpable negligence claims, as well as claims under 42 U.S.C. § 1983 for deprivation of plaintiff's Fourteenth Amendment rights to adequate medical care and reasonable safety. (Doc. #23.)

         The Amended Complaint sets forth these relevant material facts: The Florida Department of Children and Families (DCF) is required by Florida statutes to provide foster care and related services to children in the custody of the State of Florida. (Doc. #23, ¶ 7.) To do so, the DCF contracts with private entities to serve as lead agencies for community-based care. Defendant Children's Network of Southwest Florida, LLC (CNSF) contracted with DCF to provide foster care and related services as the lead agency for community-based care in Lee and Charlotte Counties, Florida. (Id., ¶ 7.) The Amended Complaint describes CNSF as an “independent contractor” of the DCF. (Id., ¶ 8.) Defendant Camelot Community Care, Inc. (CCC) owns the fictitious name “Children's Network of Southwest Florida” and, “on [plaintiff's] information and belief” performed foster care and related services to children, including S.K., in Lee and Charlotte counties. (Id., ¶¶ 9, 10.)

         In turn, CNSF and/or CCC subcontracted with Lutheran Services Florida, Inc. (LSF), an independent contractor of CNSF/CCC/DCF, to provide foster care and related services in Lee and Charlotte counties. (Id., ¶¶ 11-14.) CNSF/CCC were required to monitor the performance of LSF. (Id. ¶ 5.) Defendant Pearl Araque was an employee of LSF, and was S.K.'s case manager. (Id., ¶ 17.) Defendant Gwendolyn Doyle was an employee of LSF and was Araque's supervisor. (Id., ¶ 18.) Defendant Una Richardson was licensed by the entity-defendants to provide foster care services in her home, and provided foster care to S.K. from January 3, 2014 to July 30, 2014. (Id., ¶¶ 19, 21, 49, 88.)

         On or about October 28, 2013, S.K. and his twin sister were removed from their biological parents and placed in the custody of the DCF because S.K.'s serious dental needs were not being met, and his father was using S.K.'s condition to obtain prescription pain medication for himself. (Doc. #23, ¶ 23.) On October 29, 2013, S.K. was placed in a foster home (Id., ¶ 25), and on November 1, 2013 LSF began providing case management services to S.K. (Id., ¶¶ 26-29.) By November 4, 2013, all defendants except Richardson knew of S.K.'s dental status and that he needed a root canal or other procedure to address his dental pain. (Id., ¶¶ 30-31, 34.)

         On November 5, 2013, Araque performed a home visit to S.K. (Doc. #23, ¶ 35.) During the visit, S.K. told Araque he was suffering tooth pain, but Araque but made no notation on the home visit form, even though such a notation was required by law. (Id.) The Amended Complaint details 13 more home visits by Araque from late 2013 to early May 2014, during which S.K. consistently told Araque he had dental pain. Araque consistently failed to note the complaints of pain in S.K.'s records or obtain treatment for him. (Id., ¶¶ 37, 39, 41, 42, 43, 46, 52, 55, 56, 61, 65, 70, 77.)

         On May 9, 2014, S.K. was seen by a dentist, who recommended a tooth extraction. (Doc. #23, ¶¶ 72-75.) Defendants failed to follow up (Id., ¶¶ 77, 79-83), and by July 21, 2014, S.K. was crying during the home visits and telling Araque he was in pain. (Id., ¶ 86.) Only then did Araque note that S.K. had a tooth infection, his dental condition had deteriorated, and he was having problems in school as a result. (Id.)

         S.K. did not undergo dental surgery until on or about August 20, 2014. (Doc. #23, ¶¶ 80, 83, 92-93.) On August 26, 2014, S.K. was diagnosed with trigeminal neuralgia caused by the delay in his treatment, a pain disorder that affects the trigeminal nerve causing episodes of severe, sudden, and shock-like pain in one side of the face, from which he still suffers. (Id., ¶¶ 95-96.) S.K. endured numerous procedures and suffers debilitating pain. (Id., ¶¶ 98-99.)

         II.

         Under Federal Rule of Civil Procedure 8(a)(2), a Complaint must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). This obligation “requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citation omitted). To survive dismissal, the factual allegations must be “plausible” and “must be enough to raise a right to relief above the speculative level.” Id. See also Edwards v. Prime Inc., 602 F.3d 1276, 1291 (11th Cir. 2010). This requires “more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citations omitted).

         In deciding a Rule 12(b)(6) motion to dismiss, the Court must accept all factual allegations in a complaint as true and take them in the light most favorable to plaintiff, Erickson v. Pardus, 551 U.S. 89 (2007), but “[l]egal conclusions without adequate factual support are entitled to no assumption of truth.” Mamani v. Berzain, 654 F.3d 1148, 1153 (11th Cir. 2011) (citations omitted). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. “Factual allegations that are merely consistent with a defendant's liability fall short of being facially plausible.” Chaparro v. Carnival Corp., 693 F.3d 1333, 1337 (11th Cir. 2012) (internal citations omitted). Thus, the Court engages in a two-step approach: “When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.” Iqbal, 556 U.S. at 679.

         III.

         All defendants except Richardson[1] move to dismiss their respective counts in the Amended Complaint. Defendants argue that none of the counts adequately pleads actionable claims.

         A. Claims Against CCC

         Defendant CCC is named as a defendant in Counts III (negligence), IV (culpable negligence), and VIII (§ 1983). Defendant CCC asserts that none of these counts plausibly sets forth a claim for which relief may be granted under the pleading standards summarized above. The Court agrees.

         “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. CCC is the entity which owns the fictitious name “Children's Network of Southwest Florida.” (Doc. #23, ¶ 9.) The Amended Complaint is sketchy, at best, as to CCC's actual involvement in the case, and S.K. admits that the co-defendant CNSF is a separate entity. (Doc. #33, p. 6 n. 1.) CNSF and CCC are usually lumped together with an “and/or” conjunction.

         Given the amorphous nature of the allegations relating to CCC, S.K. states:

Should discovery in this case clarify which entity was providing foster care and related services to Plaintiff, S.K., and which entity was the lead community-based care provider in Lee and Charlotte Counties, Florida, Plaintiff will dismiss any party who played no part in the acts alleged, amend his allegations to delete such party, and would no longer need to use any “and/or” language and would simply use “and” in place of the phrase “and/or.”

(Id.) But this is not the way it works.

         In the context of a complaint, plaintiff is not allowed to use such a shotgun device to haul an entity into federal court and then use discovery procedures to sort out the facts. Fed.R.Civ.P. 11(b)(3). Additionally, this is not pleading alternative claims as allowed by Fed.R.Civ.P. 8(d)(2); it is pleading alternative parties. In any event, as discussed below with regard to CNSF, there are insufficient facts alleged relating to the conduct of CCC or its agents or employees to plausibly state any of the causes of action. Accordingly, the motion is granted as to CCC, and CCC is dismissed without prejudice as to Counts III, IV, and VIII with leave to amend.

         B. Claims Against CNSF

         CNSF is named as a defendant in Counts III (negligence), IV (culpable negligence), and VIII (§ 1983). Defendant CNSF asserts that none of these counts plausibly sets forth a claim for which relief may be granted under the pleading standards summarized above. The Court agrees for the same reasons set forth as to CCC.

         The Amended Complaint alleges few facts as to conduct by CNSF or its agents or employees that could plausibly establish the causes of action. At best, the Amended Complaint implies that CNSF is liable for the conduct of its independent contractor, LSF, and the independent contractor's employees. But a contractor such as CNSF is not liable in tort for the alleged acts or omissions of its subcontractor's employees, officers, or agents. Castello v. P'ship for Strong Families, Inc., 117 So.3d 62, 63 (Fla. 1st DCA 2013), citing Fla. Stat. § 409.1671(1)(h). See also Fla. Stat. § 409.993(2)(a).[2] Additionally, even if liability is legally possible, there are simply insufficient facts as to the conduct of CNSF or its agents or employees to plausibly set forth the causes of actions. Accordingly, the motion is granted as to CNSF, and CNSF is dismissed without prejudice as to Counts III, IV, and VIII with leave to amend.

         C. Culpable Negligence Claim Against LSF

         LSF is named as a defendant in Counts I (negligence), II (culpable negligence), and V (§ 1983). Defendant LSF asserts that Counts II and V do not plausibly set forth claims for which relief may be granted under the pleading standards summarized above. The Court disagrees as to the culpable negligence claim, and will discuss the § 1983 claim in a moment.

         As to Count II, LSF argues that plaintiff has simply taken the conduct described in the Count I negligence claim and added the description of “culpably negligent” to LSF's alleged conduct. The reason for this, defendant surmises, is to avoid the statutory cap on damages contained in Fla. Stat. §§ 409.1671(j) (2013); 409.993(3)(a) (2014).[3] Even if this is so, the culpable negligence claim is acceptable because a plaintiff may properly plead alternative counts. Fed.R.Civ.P. 8(d)(2).

         The alternative count, however, must still be sufficiently plead. Defendant defines “culpable negligence” from the criminal law context as “consciously doing an act or following a course of conduct that defendant must have known, or reasonably should have known, was likely to cause death or great bodily injury.” (Doc. #27, p. 5, citing Logan v. State, 592 So.2d 295, 298 (Fla. 5th DCA 1991)). The more applicable definition comes from the relevant statutes, which define “culpable negligence” as “reckless indifference or grossly careless disregard of human life.” Fla. Stat. §§ 409.1671(1)(k); 409.993(3)(b). The Court concludes that plaintiff has satisfied his pleading burden as to Count II. The allegations in the Amended Complaint plausibly set forth a factual basis for a claim of culpable negligence by LSF.[4] This portion of the motion to dismiss Count II is denied.

         D. Section 1983 Claims

         The Amended Complaint alleges § 1983 claims against LSF in Count V, against Araque in Count VI, against Doyle in Count VII, and against CNSF/CCC in Count VIII. These § 1983 claims provide the only bases for federal court jurisdiction.

         Title 42 U.S.C. § 1983 provides, in relevant part:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. . . .

         In sum, “[t]o establish a claim under § 1983, a plaintiff must demonstrate that a person acting under color of state law deprived him of a federal right.” Bailey v. Wheeler, 843 F.3d 473, 480 (11th Cir. 2016). All defendants move to dismiss their respective § 1983 claims for various reasons.

         (1) “Persons” Within the Meaning of § 1983

         As § 1983 states, in order to incur liability a defendant must be a “person.” All § 1983 defendants seek to dismiss the § 1983 claims because they are not “persons” within the meaning of § 1983, but rather are “arms” of the State of Florida. The Amended Complaint specifically pleads that each of the entity defendants is a “person” (Doc. #23, ¶¶ 127, 162) and that all defendants were not a “state agency” within the meaning of Fla. Stat. § 768.28. (Id., ¶ 16.) Plaintiff argues that none of these defendants are an arm of the State, and therefore are “persons” within the meaning of § 1983. Alternatively, plaintiff asserts that Florida has waived defendants' immunity from suit. (Doc. #33, p. 12, n.6.)

         Defendants base their argument on Will v. Michigan Dep't of State Police, 491 U.S. 58 (1989), in which the United States Supreme Court held that a State is not a “person” within the meaning of Section 1983. “Section 1983 provides a federal forum to remedy many deprivations of civil liberties, but it does not provide a federal forum for litigants who seek a remedy against a State for alleged deprivations of civil liberties. The Eleventh Amendment bars such suits unless the State has waived its immunity.” Id. at 66. Will noted that the ...


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