United States District Court, M.D. Florida, Jacksonville Division
MORALES HOWARD, United Slates District Judge.
Troy Jackson initiated this action on August 27, 2018. In an
Order, filed on September 12, 2019, the Court granted
Jackson's request for leave to file an amended complaint
and directed Defendant Corizon Health, Inc., to answer the
Amended Complaint (Doc. 39) no later than October 21, 2019.
See Order (Doc. 38) at 1. The Court further directed
the parties to “conduct discovery so the due date of
any discovery requested is no later than February 21,
2020, ” id. at 1, and set a
dispositive motion deadline of April 6, 2020, see
id. at 2.
Amended Complaint, Jackson asserts claims pursuant to 42
U.S.C. § 1983 against Defendant Corizon. He alleges that
Nurse Lewis, a Corizon employee, delayed his access to
emergency care for an asthma attack he suffered on June 27,
2015, due to Corizon's policy requiring a physician's
prior approval. In counts one and three, he avers that
Corizon was deliberately indifferent to his medical needs and
is responsible for delaying his access to emergency care due
to its custom, policy and practice of (1) providing
improperly trained nurses; (2) making medical decisions based
on curtailing hospitalization costs; (3) avoiding emergency
room visits for inmates if other cost-efficient treatment
options are available; and (4) instructing medical staff to
seek prior approval from a physician before calling
paramedics or sending an inmate to the emergency room. In
count two, he states that Corizon failed to train Nurse Lewis
with respect to emergency hospital care for inmates. As
relief, he seeks monetary damages and declaratory relief.
October 21, 2019, instead of filing an answer, Corizon filed
its Motion to Dismiss or for Summary Judgment (Corizon
Motion; Doc. 43). In response, on November 14, 2019, Jackson
filed Plaintiff's pro se Motion to Strike Defendant
Corizon's Motion to Dismiss or for Summary Judgment
(Motion; Doc. 45). In the Motion, Jackson requests that the
Court strike Corizon's Motion, and direct Corizon to file
an answer in compliance with the Court's Order (Doc. 38).
He maintains that Corizon filed a “hybrid” motion
“solely to stave off” filing an answer and
engaging in discovery. Motion at 2. He cites no authority for
striking an opposing party's motion, rather than
responding to it. The Court will rule on the Motion without
requiring Corizon to respond. Upon review of the Motion, the
Court determines that it is due to be denied.
Rule 12(f)(2), Federal Rules of Civil Procedure (Rule(s))
provides that, upon motion by a party, the Court “may
strike from a pleading an insufficient defense or any
redundant, immaterial, impertinent, or scandalous
matter.” However, only material found in a
“pleading” may be stricken pursuant to Rule
12(f). See Jeter v. Montgomery Cty., 480 F.Supp.2d
1293, 1296 (M.D. Ala. 2007); Lowery v. Hoffman, 188
F.R.D. 651, 653 (M.D. Ala. 1999); Newsome v.
Webster, 843 F.Supp. 1460, 1464-65 (S.D. Ga. 1994). Rule
7(a) defines which documents constitute
pleadings. See Scarborough v. Principi, 541
U.S. 401, 417 (2004) (noting that Rule 7(a)
“enumerat[es] permitted ‘pleadings'”).
Motions to dismiss or for summary judgment are not pleadings,
as enumerated in the Rule. See Rule 7(a).
Jackson's Motion is directed at Corizon's Motion
which does not constitute a pleading. See Motion at
1; Rule 7(a). Thus, the remedy of striking the document is
not appropriate, and the Motion will be denied.
addition to filing the Motion, on November 18, 2019, Jackson
filed Plaintiff's pro se Motion for Order of Court's
Deadline to Remain in Effect (Second Motion; Doc. 46). In his
Second Motion, Jackson asserts that he needs to engage in
discovery before he responds to Corizon's Motion, and
therefore, requests that the Court's deadlines for
discovery and the filing of motions remain in effect. The
Court will rule on the Second Motion without requiring
Corizon to respond. Upon consideration of the Second Motion,
the Court determines that it is due to be granted to the
extent that the Court will leave in place the deadlines set
forth in the Order and deny without prejudice the Corizon
Motion to the extent that Corizon seeks entry of summary
judgment in its favor.
evident from the brief procedural history of this case, the
Corizon Motion precedes not only Defendant's response to
the Amended Complaint, but also the exchange of discovery
between the parties. “The law in [the Eleventh]
[C]ircuit is clear: the party opposing a motion for summary
judgment should be permitted an adequate opportunity to
complete discovery prior to consideration of [a motion for
summary judgment].” Jones v. City of Columbus,
Ga., 120 F.3d 248, 253 (11th Cir. 1997); Snook v.
Trust Co. of Ga. Bank of Savannah, N.A., 859 F.2d 865,
870-71 (11th Cir. 1988) (instructing that “summary
judgment should not be granted until the party opposing the
motion has had an adequate opportunity for discovery”
and recognizing that opposing parties have a “right to
utilize the discovery process to discover the facts necessary
to justify their opposition to” a summary judgment
motion); Kelsey v. Withers, 718 Fed.Appx. 817,
820-21 (11th Cir. 2017) (affirming district court's
decision to strike a premature summary judgment motion and
explaining that “‘[d]istrict courts have
unquestionable authority to control their own dockets,'
including ‘broad discretion in deciding how best to
manage the cases before them'” (internal quotation
omitted)); Bradley v. Branch Banking & Trust
Co., No. 3:15-cv-00012-TCB-RGV, 2015 WL 11422296, at *8
(N.D.Ga. July 30, 2015) (collecting cases) adopted
by 2015 WL 11455759, at *2 (N.D.Ga. Aug. 24, 2015).
Consistent with this authority, the Court finds good cause
for Jackson's request that he be permitted to engage in
discovery before responding to any motion for summary
judgment. While the Court could simply defer ruling on the
request for summary judgment, the Court determines the more
appropriate course of action is to deny the Corizon Motion
without prejudice to the extent it seeks entry of summary
judgment. Corizon may file a renewed motion for summary
judgment at the appropriate time, after an adequate
period for discovery. See DeJesus v. Emerald Coast
Connections of St. Petersburg, Inc., No.
8:10-cv-462-T-30TBM, 2010 WL 1839119, at *1 (M.D. Fla. May 4,
2010) (denying summary judgment motion as premature where
parties had not yet engaged in discovery); Blumel v.
Mylander, 919 F.Supp. 423, 428-29 (M.D. Fla. Mar. 12,
1996) (denying summary judgment motion as premature where
motion was served on first day of discovery period and
admonishing counsel that filing a premature motion not only
disregards the opposing parties' discovery rights but
also wastes judicial resources). The Court further finds that
denial of the Corizon Motion rather than deferral is
warranted because any summary judgment motion filed in this
case must take into consideration and be supported by the
evidence disclosed during the discovery period. As the
current Corizon Motion seeking summary judgment cannot
account for discovery not yet undertaken, the better course
of action is to deny it without prejudice. As such, the Court
will treat the Corizon Motion as a request for dismissal
under Rule 12(b)(6) only and not as one for summary judgment
at this time.
Court now turns to the Corizon Motion. In its motion, Corizon
maintains that Jackson's claims relating to its policies
in counts one and three are “baseless.” Corizon
Motion at 15. Additionally, Corizon asserts that Jackson
fails to state a claim in count two because “[n]othing
in the Complaint or the record indicates a need for training
known to Corizon.” Id. at 17. Because a review
of the Amended Complaint establishes that the motion is due
to be denied, the Court will rule on the Corizon Motion
without requiring Jackson to respond.
ruling on a motion to dismiss, the Court must accept the
factual allegations set forth in the complaint as true.
See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009);
Swierkiewicz v. Sorema N.A., 534 U.S. 506, 508 n.1
(2002); see also Lotierzo v. Woman's World Med. Ctr.,
Inc., 278 F.3d 1180, 1182 (11th Cir. 2002). In addition,
all reasonable inferences should be drawn in favor of the
plaintiff. See Randall v. Scott, 610 F.3d 701, 705
(11th Cir. 2010). Nonetheless, the plaintiff must still meet
some minimal pleading requirements. Jackson v. Bellsouth
Telecomm., 372 F.3d 1250, 1262 63 (11th Cir. 2004)
(citations omitted). Indeed, while “[s]pecific facts
are not necessary[, ]” the complaint should
“‘give the defendant fair notice of what the . .
. claim is and the grounds upon which it rests.'”
Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per
curiam) (quoting Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 555 (2007)). Further, the plaintiff must allege
“enough facts to state a claim that is plausible on its
face.” Twombly, 550 U.S. at 570. “A
claim has facial plausibility when the pleaded factual
content allows the court to draw the reasonable inference
that the defendant is liable for the misconduct
alleged.” Iqbal, 556 U.S. at 678 (citing
Twombly, 550 U.S. at 556).
“plaintiff's obligation to provide the grounds of
his entitlement to relief requires more than labels and
conclusions, and a formulaic recitation of the elements of a
cause of action will not do[.]” Twombly, 550
U.S. at 555 (internal quotations omitted); see also
Jackson, 372 F.3d at 1262 (explaining that
“conclusory allegations, unwarranted deductions of
facts or legal conclusions masquerading as facts will not
prevent dismissal”) (internal citation and quotations
omitted). Indeed, “the tenet that a court must accept
as true all of the allegations contained in a complaint is
inapplicable to legal conclusions[, ]” which simply
“are not entitled to [an] assumption of truth.”
Iqbal, 556 U.S. at 678, 680. Thus, in ruling on a
motion to dismiss, the Court must determine whether the
complaint contains “sufficient factual matter, accepted
as true, to ‘state a claim to relief that is plausible
on its face[.]'” Id. at 678 (quoting
Twombly, 550 U.S. at 570). And, while “[p]ro
se pleadings are held to a less stringent standard than
pleadings drafted by attorneys and will, therefore, be
liberally construed, ” Tannenbaum v. United
States, 148 F.3d 1262, 1263 (11th Cir. 1998),
“‘this leniency does not give the court a license
to serve as de facto counsel for a party or to rewrite an
otherwise deficient pleading in order to sustain an
action.'” Alford v. Consol. Gov't of
Columbus, Ga., 438 Fed.Appx. 837, 839 (11th Cir.
2011) (quoting GJR Invs., Inc. v. Cty. of
Escambia, Fla., 132 F.3d 1359, 1369 (11th Cir. 1998)
(internal citation omitted), overruled in part on other
grounds as recognized in Randall, 610 F.3d at 706).
municipality may be liable in a § 1983 action
“only where the municipality itself causes the
constitutional violation at issue.” Cook ex. rel.
Estate of Tessier v. Sheriff of Monroe Cty., Fla., 402
F.3d 1092, 1116 (11th Cir. 2005) (citations omitted). Thus, a
plaintiff must establish that an official policy or custom of
the municipality was the “moving force” behind
the alleged constitutional deprivation. See Monell v.
Dep't of Soc. Servs., 436 U.S. 658, 693-94 (1978).
“A policy is a decision that is officially adopted by
the municipality, or created by an official of such rank that
he or she could be said to be acting on behalf of the
municipality.” Sewell v. Town of Lake
Hamilton, 117 F.3d 488, 489 (11th Cir. 1997) (citation
omitted). The policy requirement is designed to
“‘distinguish acts of the municipality
from acts of employees of the municipality, and
thereby make clear that municipal liability is limited to
action for which the municipality is actually
responsible.'” Grech v. Clayton Cty.,
335 F.3d 1326, 1329 n.5 (11th Cir. 2003) (en banc) (quotation
omitted). Indeed, municipal liability arises under §
1983 only where “‘a deliberate choice to follow a
course of action is made from among various alternatives'
by city policymakers.” City of Canton v.
Harris, 489 U.S. 378, 389 (1989) (quoting Pembaur v.
Cincinnati, 475 U.S. 469, 483-84 (1986)). A municipality
will rarely have an officially-adopted policy that permits a
particular constitutional violation, therefore, in order to
state a cause of action for damages under § 1983, most
plaintiffs must demonstrate that the municipality has a
custom or practice of permitting the violation. See
Grech, 335 F.3d at 1330; McDowell v. Brown, 392
F.3d 1283, 1289 (11th Cir. 2004). The Eleventh Circuit has
defined “custom” as “a practice that is so
settled and permanent that it takes on the force of
law” or a “persistent and wide-spread
practice.” Sewell, 117 F.3d at 489.
a municipality may be liable “on the basis of
ratification when a subordinate public official makes an
unconstitutional decision and when that decision is then
adopted by someone who does have final policymaking
authority.” Hoefling v. City of Miami, 811
F.3d 1271, 1279 (11th Cir. 2016) (citing Matthews v.
Columbia Cty., 294 F.3d 1294, 1297 (11th Cir. 2002)). In
this context, the “final policymaker, however, must
ratify not only the decision itself, but also the
unconstitutional basis for it.” Matthews, 294
F.3d at 1297-98 (internal quotations and citations omitted).
The Eleventh Circuit also has suggested that a city's
“persistent failure to take disciplinary action against
officers can give rise to the inference that a municipality
ratified conduct, thereby establishing a ‘custom'
within the meaning of Monell.” Fundiller
v. City of Cooper City, 777 F.2d 1436, 1443 (11th Cir.
1985); see also Rivas v. Figueroa, No.
11-23195-Civ., 2012 WL 1378161, at *3 (S.D. Fla. Apr. 20,
2012) (“A municipality may be liable for violating
Section 1983 even where the municipality provides rules and
regulations for the operation of its police department, if
those rules were repeatedly violated and the municipality
failed to rectify the situation.”) (citing Depew v.
City of St. Marys, Ga., 787 F.2d 1496, 1499 (11th
Cir.1986)). Because Corizon's liability under § 1983
would be based on its functional equivalence to the
government entity responsible for providing medical care and
services to Florida Department of Corrections inmates,
Jackson must plead that an official policy or custom of
Corizon was the moving force behind the alleged
taking Jackson's allegations in the Amended Complaint as
true, as the Court must at this motion-to-dismiss stage of
the litigation, Jackson states plausible Eighth Amendment
claims against Defendant Corizon. Jackson identifies the
Corizon policy which he alleges was the moving force behind
the deliberate indifference to his serious medical condition.
See Amended Complaint at ¶¶ 61, 62, 70,
71, 75, 84-86. He further pleads facts, which taken in the
light most favorable to him, suggest a need to train Nurse
Lewis and Corizon medical staff. See id. at