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Hammer v. Lee Memorial Health System

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

August 3, 2018

BRIANNA HAMMER, Plaintiff,
v.
LEE MEMORIAL HEALTH SYSTEM and JEOVANNI HECHAVARRIA, R.N., Defendants.

          OPINION AND ORDER

          JOHN E. STEELE SENIOR UNITED STATES DISTRICT JUDGE

         This matter comes before the Court on defendant's Partial Motion to Dismiss Plaintiff's Second Amended Complaint for Damages (Doc. #6) filed on May 24, 2018. Plaintiff filed a Response in Opposition (Doc. #15) on June 7, 2018. For the reasons set forth below, the motion is granted.

         I.

         On April 24, 2018, Plaintiff Brianna Hammer (Plaintiff) filed a seven-count Second Amended Complaint against Lee Memorial Health System (Lee Memorial) and Jeovanni Hechavarria (Hechavarria) in the Circuit Court of the Twentieth Judicial Circuit in and for Lee County, Florida. (Doc. #2.) On May 17, 2018, Lee Memorial removed the case on the basis of federal question and supplemental jurisdiction. (Doc. #1.) Plaintiff asserts claims against Lee Memorial for violation of her civil rights pursuant to 42 U.S.C. § 1983 (Count I), negligent supervision (Count II), negligent hiring (Count III), negligent security (Count IV), negligence (Count V), and vicarious liability (Count VI). Plaintiff asserts a claim against Hechavarria for assault and battery (Count VII).

         According to the Second Amended Complaint (Doc. #2): On March 15, 2015 through March 17, 2015, Plaintiff was a patient at Cape Coral Hospital, a hospital operated by Lee Memorial. (Id. ¶¶ 6, 8, 9.) Hechavarria was Plaintiff's nurse for the evenings of March 15, 2015 and March 16, 2015. (Id. ¶ 10.) On March 16, 2015, while Plaintiff was medicated with “a narcotic pain medication, ” Hechavarria touched Plaintiff's “breasts, lower back, buttocks, and then spread her legs and looked at her vagina” without Plaintiff's consent. (Id. ¶¶ 12, 13.) Later that evening, Hechavarria returned to Plaintiff's room and put “his hand in between [Plaintiff's] legs penetrating her vagina” without Plaintiff's consent. (Id. ¶ 14.) This lawsuit followed.

         Lee Memorial now moves to dismiss Counts II, III, IV, V, and VI. Lee Memorial argues those Counts should be dismissed because Plaintiff failed to allege sufficient facts to state actionable claims against Lee Memorial.

         II.

         Federal Rule of Civil Procedure 8(a) requires a complaint to contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R.Civ.P. 8(a)(2). In evaluating a Rule 12(b)(6) motion seeking to dismiss a complaint for failing to comply with Rule 8(a), the Court must accept as true all factual allegations in the complaint and “construe them in the light most favorable to the plaintiff.” Baloco ex rel. Tapia v. Drummond Co., 640 F.3d 1338, 1345 (11th Cir. 2011). However, mere “[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).

         To avoid dismissal under Rule 12(b)(6), the complaint must contain sufficient factual allegations to “raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). To do so requires “enough facts to state a claim to relief that is plausible on its face.” Id. at 570. This plausibility pleading obligation demands “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Id. at 555 (citation omitted); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.”); Chaparro v. Carnival Corp., 693 F.3d 1333, 1337 (11th Cir. 2012) (“Factual allegations that are merely consistent with a defendant's liability fall short of being facially plausible.” (citation 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.

         As a preliminary matter, the Court first addresses Plaintiff's Response in Opposition. In it, Plaintiff argues against dismissal by relying on facts not alleged in her Second Amended Complaint. Because the Court's review of a motion to dismiss is generally limited “to a consideration of the pleadings and exhibits attached thereto, ” the Court will not consider the newly alleged facts in the Response in Opposition when analyzing the instant Motion to Dismiss. Kinsey v. MLH Fin. Servs., Inc., 509 Fed.Appx. 852, 853 (11th Cir. 2013).

         A. The Negligent Supervision Claim (Count II)

         Count II is a claim against Lee Memorial for negligent supervision, alleging that Lee Memorial negligently allowed Hechavarria to “have unsupervised and unfettered access to female patients while in the hospital.” (Doc. #2, ¶ 39.) Lee Memorial argues Count II should be dismissed because Plaintiff failed to allege sufficient facts to state a cause of action for negligent supervision. The Court agrees.

         “Negligent supervision occurs when during the course of employment, the employer becomes aware or should have become aware of problems with an employee that indicated his unfitness, and the employer fails to take further actions such as investigation, discharge, or reassignment.” Dep't of Envtl. Prot. v. Hardy,907 So.2d 655, 660 (Fla. 5th DCA 2005). To state a claim for negligent supervision under Florida law, a plaintiff must “allege facts sufficient to show that once an employer received actual or constructive notice of problems with an employee's fitness, it was unreasonable for the employer not to investigate or take corrective action.” Id. ...


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