United States District Court, M.D. Florida, Fort Myers Division
OPINION AND ORDER
E. STEELE SR UNITED STATES DISTRICT JUDGE
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.
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.)
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,
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.)
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.)
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.)
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.)
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.)
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,
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
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.
defendants except Richardson move to dismiss their respective
counts in the Amended Complaint. Defendants argue that none
of the counts adequately pleads actionable claims.
Claims Against CCC
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.
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
the amorphous nature of the allegations relating to CCC, S.K.
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
(Id.) But this is not the way it works.
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.
Claims Against CNSF
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.
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). 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.
Culpable Negligence Claim Against LSF
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.
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). 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).
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. This portion of
the motion to dismiss Count II is denied.
Section 1983 Claims
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.
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. . . .
“[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.
“Persons” Within the Meaning of §
§ 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.)
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