United States District Court, M.D. Florida, Fort Myers Division
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.
OPINION AND ORDER
E. Steele, Judge
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.
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
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.)
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.)
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.
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.)
short, plaintiff alleges that Coach Delgado and the School
Board's actions constituted a deliberate indifference to
the health and safety of Zachary.
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,
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.
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 ...