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Giordano v. The School Board of Lee County

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

October 25, 2019

LAURIE ALICE GIORDANO, individually, and as Personal Representative of the Estate of ZACHARY TYLER MARTIN-POLSENBERG, Plaintiff,
THE SCHOOL BOARD OF LEE COUNTY, FLORIDA, JAMES DELGADO, Individually and in his official capacity, and LEE COUNTY EMS, through LEE COUNTY, a Political Subdivision of the State of Florida, Defendants.


          John E. Steele, Judge

         This matter comes before the Court on Defendants James Delgado and the School Board of Lee County's Motion to Dismiss Counts I and II brought pursuant to 42 U.S.C. § 1983 (Doc. #36) and Plaintiff's Response (Doc. #43). For the reasons set forth below, the Motion is granted with leave to amend.


         This case involves the tragic death of a Riverdale High School football player. Together with claims for negligence (Count IV) and wrongful death (Count V), Counts I and II are brought under 42 U.S.C. § 1983 against Defendants James Delgado and the School Board of Lee County (“defendants”) by Laurie Alice Giordano individually and on behalf of the estate of her son, Zachary Tyler Martin-Polsenberg, for alleged violations of his substantive due process rights under the Fourteenth Amendment to the United States Constitution.

         The Amended Complaint (Doc. #34) alleges as follows: At around 7:00 a.m. on the morning of June 29, 2017, Zachary arrived at Riverdale High School for summer football practice. (Id., ¶ 6.) The practice lasted several hours “while the temperature reached 90 degrees.” (Id. ¶ 26.) Despite knowing the importance of hydration in such conditions, Coach James Delgado withheld water (despite Zachary's pleas) and discouraged the players from taking breaks. (Id. ¶¶ 37-40.) He threatened to punish players who asked for water, telling them they would “walk off” the team. (Id. ¶ 39.) Zachary showed signs of heat exhaustion during the drills, but the coaches ignored his symptoms and forced him (along with the other player) to run “never-ending” sprints towards the conclusion of practice that day. (Id. ¶¶ 31, 40.)

         As the players were huddling after practice, Zachary collapsed, became incoherent, began convulsing, and vomited-all obvious signs of heat exhaustion that were ignored. (Doc. #34, ¶¶ 41, 43.) There was no trainer or health care professional present on the field. Coach Delgado did nothing for several minutes, and it was only after Zachary's mother was notified that Coach Delgado called 911. (Id. ¶¶ 42-46, 55.) Coach Delgado requested an ambulance, but intentionally downplayed the severity of the situation and told the operator that Zachary was “fine.” (Id. ¶ 47.) In the meantime, the coaches were unable to administer medical care such as ice packs or an ice bath because they lacked the necessary equipment or failed to use it. (Id. ¶ 54.) Plaintiff also alleges that there was not a trainer on site, which is “required or should be required by football coaching standards.” (Id. ¶ 55.) Plaintiff alleges that defendants' actions were all in violation of Florida High School Athletic Association Policy 41. (Id. ¶ 24.)

         Lee County EMS was slow to arrive, a delay attributed to Coach Delgado's statements to the emergency operator. (Doc. #34 ¶¶ 47-48.) EMS did not provide adequate emergency care, and Zachary fell into a heat-induced coma. He could not recover from his injuries and passed away on July 10, 2017.

         As for the federal claims under 42 U.S.C. § 1983 for “unconstitutional deprivation of life”, plaintiff alleges that Coach Delgado deprived Zachary of due process (his right to bodily integrity and life) by forcing him to perform physical drills in the intense heat, denying him water, and failing to seek emergency medical care when he was injured (among other reasons listed at paragraph 71 of the Amended Complaint). (Doc. #34, ¶¶ 70-71.) Plaintiff alleges that Coach Delgado and the School Board had a legal duty to Zachary to provide a safe and adequate football practice environment. (Id., ¶¶ 66, 82.) The School Board is also included because it conducted and sponsored the summer football practice, approved of this conduct, and maintained “dangerous policies, rules, and regulations” that neglected student safety. (Id. ¶ 83.)

         In short, plaintiff alleges that Coach Delgado and the School Board's actions constituted a deliberate indifference to the health and safety of Zachary.


         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. at 555. 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.


         Section 1983 imposes liability on any person who, under color of state law, deprives a person “of any rights, privileges, or immunities secured by the Constitution and laws.” 42 U.S.C. § 1983. To state a claim under 42 U.S.C. § 1983, a plaintiff must allege “(1) that the defendant deprived [the plaintiff] of a right secured under the Constitution or federal law and (2) that such deprivation occurred under color of state law.” Arrington v. Cobb Cty., 139 F.3d 865, 872 (11th Cir. 1998). A local government may be held liable under § 1983 only “if the plaintiff shows that a ‘custom' or ‘policy' of the municipality was the ‘moving force' behind the constitutional deprivation.” Sewell v. Town of Lake Hamilton, 117 F.3d 488, 489 (11th Cir. 1997) (citing Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690-94 (1978)). The government entity ...

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