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Giordano v. The School Board of Lee County

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

January 2, 2020

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.



         Before the Court is the School Board of Lee County and James Delgado's Motion to Dismiss Counts I and II brought pursuant to 42 U.S.C. § 1983 (Doc. #54) filed on November 25, 2019, and plaintiff's Response in Opposition (Doc. #58). For the reasons set forth below, the Motion is granted.


         This case involves the tragic death of a Riverdale High School football player following summer football practice. Together with claims for negligence and wrongful death, plaintiff Laurie Alice Giordano individually and on behalf of the estate of her son, Zachary Tyler Martin-Polsenberg, brings two claims under 42 U.S.C. § 1983 against defendants James Delgado and the School Board of Lee County (“defendants”) for alleged violations of Zachary's substantive due process rights under the Fourteenth Amendment to the United States Constitution. In short, plaintiff alleges that Coach Delgado and the School Board's actions constituted a deliberate indifference to the health and safety of Zachary.

         The Court previously dismissed the substantive due process claims, finding that plaintiff failed to allege that Zachary had a custodial relationship with defendants at a voluntary summer football practice and that no conscience-shocking constitutional violations occurred under Eleventh Circuit precedent. (Doc. #50.) Because the Court declined to exercise supplemental jurisdiction over the state law claims, it did not address the remaining state law claims. The Court provided plaintiff with a final opportunity to file an amended complaint setting forth federal claims.

         On November 22, 2019, plaintiff filed a Second Amended Complaint (Doc. #53). Defendants move to dismiss, arguing that plaintiff still fails to allege an underlying constitutional violation and defendants are otherwise entitled to qualified immunity. Plaintiff responds that the Second Amended Complaint alleges facts sufficient to state a constitutional claim.

         The Second Amended Complaint (Doc. #53) 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. The School Board and Coach Delgado chose to conduct summer football practice in Southwest Florida when they knew that the heat would cause an extreme risk of harm to Zachary. Although the rules, regulations, and protocols of the Florida High School Athletic Association (FHSAA) (of which Riverdale High is a member) provide the minimum standards and regulations for heat acclimatization, medical emergencies, and precautions that should be taken in hot weather, Delgado and the School Board failed to adopt or enforce such minimum safety requirements. Plaintiff alleges that such safety standards include ice packs, immersion tubs, or other medical equipment necessary to treat heat-related injuries.

         During the morning of June 29, 2017, Delgado subjected Zachary to an intense football practice to promote discipline with grossly unreasonable content and length (4 hours). The practice concluded with sprints known as “never-ending” sprints while the temperatures reached above 90 degrees. The never-ending sprints required Zachary and the other players to run sprints that initially increased in yardage up to 100 yards, then decreased in yardage, with only a few seconds of rest between sprints. At the time the sprints began, Coach Delgado had not given Zachary and the other plays access to water for nearly 45 minutes. Throughout the practice, Coach Delgado did not properly hydrate Zachary and others, and did not provide adequate medical care, violating nearly all the FHSAA standards.

         During the drills, Zachary and other players showed signs of heat exhaustion, heat stroke, and dehydration, and pled with Delgado to allow them to have water. Coach Delgado not only denied their pleas for water, but in an effort to punish Zachary and other players for their requests, Coach Delgado told them he would kick them off the team if they stopped running sprints to get water. Plaintiff states that Coach Delgado's actions were not simply a failure to provide adequate hydration, nor simply an intentional act of depriving Zachary of water, but that Coach Delgado punished Zachary and other players by withholding water until they finished the sprints.

         Showing obvious signs of heat exhaustion, at the end of the sprints, Zachary had to be helped by other players to the huddle. Just after 10:30 a.m., Zachary collapsed and began convulsing, vomiting, and became incoherent, all obvious signs of heat exhaustion, heat stroke, and dehydration that were ignored. Even after Zachary collapsed, Coach Delgado continued to hold his other huddle meeting with other players and failed and refused to call 911 and provided no proper medical attention to Zachary. There was no trainer or other health care professional present on the practice fields at the time Zachary collapsed.

         A player came from the field to inform Zachary's mother (plaintiff) that her son “was down” and plaintiff made her way to the field with no indication of the crisis. When she saw Zachary collapsed, she demanded Coach Delgado call 911. When Coach Delgado called 911 he intentionally downplayed the severity of the situation, told the 911 operator that Zachary was fine, substantially increasing the time it took for EMS to arrive. While waiting for EMS to arrive, the School Board and Coach Delgado failed to provide ice packs, immersion tubs, or other equipment to treat Zachary.

         First Responders arrived at 10:52 a.m., and because they were led to believe there was no emergency, they arrived with no means to transport Zachary to the hospital. First Responders did not provide any lifesaving measures such as the “cool first, transport second” method wherein they would move a person out of the sun and into air conditioning and apply ice packs or immerse a person in a cold-water immersion tub. Eight minutes later, EMS arrived and walked to the field without a stretcher or any type of equipment to provide medical attention to Zachary.

         Zachary's temperature had risen to 107 degrees and he fell into a heat-induced coma on the way to the hospital, from which he never regained consciousness. Zachary died on July 10, 2017 due to complications related to heat exhaustion/stroke suffered on June 29, 2017.

         As for the federal claims under 42 U.S.C. § 1983 for “unconstitutional deprivation of life”, plaintiff alleges that Coach Delgado violated Zachary's clearly established and statutory rights to a safe environment while at summer football practice and not to be denied basic, known rights, such as hydration while exercising in the intense Southwest Florida heat in June. (Doc. #53, ¶ 69.) Plaintiff alleges that Coach Delgado showed a conscious indifference to, and a callous disregard for, the health and safety of Zachary and a deliberate inattention to Zachary's medical and safety needs, violating FHSAA minimum standards (among other reasons listed at paragraph 75 of the Second Amended Complaint). (Doc. #53, ¶ 75.) Plaintiff alleges that Coach Delgado was punishing Zachary by ...

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