United States District Court, M.D. Florida, Fort Myers Division
OPINION AND ORDER
E. STEELE SENIOR UNITED STATES DISTRICT JUDGE
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.
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).
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.
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.
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).
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
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).
The Negligent Supervision Claim (Count II)
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.
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.”