Lyles v. Osceola Cnty.

SANDRALEE L. LYLES, Plaintiff,

v. OSCEOLA COUNTY, ROSELINE C. CLERGE, GREGORY K. FUTCH, RAUL S. BANASCO, STACY LEONARDGAINES, CHARLES E. ADAMS, MARC GARCIA PIERRE-LOUIS, JANE DOEand JOHN ROE, Defendants.

Case No: 6:11-cv-1585-Orl-36DAB

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA ORLANDO DIVISION

Dated: September 13, 2012

ORDER

This cause comes before the Court upon two Motions to Dismiss: (1) Defendants Roseline C. Clerge and Marc Garcia Pierre-Louis' Amended Motion to Dismiss Plaintiff's Second Amended Complaint, filed on June 27, 2012 ("Clerge and Pierre-Louis Motion to Dismiss") (Doc. 69); and Defendants Osceola County, Gregory K. Futch, Raul S. Banasco, Stacy Leonard Gaines and Charles E. Adams' Motion to Dismiss, filed on February 24, 2012 ("Osceola Motion to Dismiss") (Doc. 50). Plaintiff Sandralee L. Lyles ("Plaintiff") filed an Amended Consolidated Response to the Motions to Dismiss on July 2, 2012 (Doc. 73). Upon consideration of the parties' submissions, relevant legal authorities, and for the reasons that follow, the Court will grant in part and deny in part Defendants' Motions to Dismiss.

I. BACKGROUND

A. Facts¹

This case arises out of the death of Don E. Saunders, Sr. ("Saunders") on August 4, 2009, while he was serving a sixty day sentence at the Osceola County Jail ("Jail"). See Second Amended Complaint ("SAC"), Doc. 44. Plaintiff, the appointed Personal Representative of Saunders' estate, brings this action alleging deliberate indifference to the medical needs of a prisoner pursuant to 42 U.S.C. § 1983, claiming that the Defendants knowingly denied Saunders, a long term dialysis patient, medical treatment for an infected dialysis access port ("AV graft"), despite having been repeatedly advised by Saunders' medical provider that intervention by a vascular surgeon was needed. Id., pp. 1-2.

1. Relevant parties

Defendant Osceola County, a subdivision of the State of Florida, operated the Jail through the Osceola County Corrections Department ("OCCD"). Id. ¶ 10. Defendant Roseline C. Clerge ("Clerge") was the Advanced Registered Nurse Practitioner ("ARNP") at OCCD. Id. ¶ 11. Defendant Gregory K. Futch ("Futch") was the Director of OCCD. Id. ¶ 12. Defendant Raul S. Banasco ("Banasco") was the Deputy Director of OCCD. Id. ¶ 13. Defendant Stacy Leonard Gaines ("Gaines") was the Captain of OCCD. Id. ¶ 14. Defendant Charles E. Adams ("Adams") was the Lieutenant of OCCD. Id. ¶ 15. Defendant Marc Garcia Pierre-Louis ("Pierre-Louis") was the Health Services Manager of OCCD.² Id. ¶ 16.

2. Timeline of events

On July 7, 2009, Saunders was incarcerated at the Jail for sixty days for the traffic misdemeanor of driving with a suspended driver's license. Id. ¶ 17. At the time of Saunders' incarceration, a medical assessment was made disclosing that he had several medical conditions, including renal failure, anemia, diabetes, and an AV graft which had been implanted in his right leg for treatment of his renal failure. Id. ¶ 18. The Jail arranged for Saunders to receive hemodialysis treatment at the Central Florida Kidney Center ("CFKC") during his incarceration. Id. ¶¶ 19, 21.

Defendant Clerge was the Jail's primary medical provider and had knowledge of Saunders' medical conditions and the care he required. Id. ¶ 20. On July 31, 2009 at the CFKC, it was noted that Saunders had an infected AV graft. Id. ¶ 22. On August 2, 2009 at 1:42 p.m., the Jail's medical staff noted that Saunders' AV graft was bleeding and he was transported to the Osceola Regional Medical Center Emergency Room ("Osceola ER"). Id. ¶ 24. The Osceola Regional Medical Center noted that Saunders' AV graft was moderately bleeding, changed his dressing, and discharged him at 2:17 a.m. Id. ¶¶ 25, 26. Osceola Regional Medical Center's discharge instructions stated that Saunders was to return if there was bleeding or signs of infection. Id. ¶ 27. In the early morning of August 3, 2009, Saunders was transported to the CFKC, accompanied by a nurse from the Jail.³ Id. ¶ 28. The Jail's medical records mention that CFKC instructed Saunders to return if there were signs or symptoms of continued bleeding. Id.

On August 3, 2009, CFKC provided unidentified Jail employees with the address and phone number of the Vascular Access Center of Orlando, and advised that the Jail make an appointment regarding Saunders' "access pain and swelling as soon as possible." Id. ¶¶ 29, 30.On August 3, 2009, the CFKC called the Jail twice to advise that Saunders see a vascular physician. Id. ¶¶ 30, 31. Plaintiff alleges that CFKC informed Jail employees that Saunders required care by a vascular physician on at least three ocassions, but he did not receive such care. Id. ¶ 32. On August 3, 2009, at 6:42 p.m., Saunders was brought to the Jail's medical bay with extensive bleeding and was transported to the Osceola ER. Id. ¶ 33. The emergency medical services team ("EMS") noted that when they arrived, Jail staff was holding direct pressure on Saunders' right thigh, there was blood on his clothes and extremities, and approximately 250-500 milliliters on the ground. Id. ¶ 34. Saunders returned from the Osceola ER to the Jail at 1:15 a.m. on August 4, 2009, complaining of pain and tenderness: he stayed in the medical bay for observation and to be seen by Clerge later that day. Id. ¶ 36.

Plaintiff alleges that although Jail staff did not arrange for Saunders' prompt treatment by a vascular surgeon, authorization requests to pay for a vascular surgeon were transmitted through the Jail's "chain of command". Id. ¶¶ 39, 40. On August 4, 2009 at 9:30 a.m., Defendant Clerge noted that Saunders was bleeding from the AV graft, and had redness and swelling. Id. ¶¶ 42, 43. At 11:57 a.m., Jail employees contacted EMS. Id. ¶ 45. At 12:05 p.m., EMS found Saunders on the floor with at least one liter of blood around him, and a tourniquet was being applied to his leg to control the bleeding. Id. ¶ 46. Saunders stopped breathing, went into cardiac arrest, and was transported to the Osceola ER, where he was declared dead at 2:43 p.m. Id. ¶¶ 46, 47. The Osceola County medical examiner found that Saunders' cause of death was hemorrhage from an infected AV graft of the right thigh. Id. ¶ 48.

B. Procedural History

On August 4, 2011, Plaintiff filed an action in the Circuit Court of the Ninth Judicial Circuit, in and for Osceola County. Doc. 2. Defendants Clerge and Pierre-Louis removed thecase pursuant to 28 U.S.C. § 1441, § 1446, and §1331. Doc. 1. Following Defendants Osceola County, Futch, Banasco, Gaines and Adams' first Motions to Dismiss (Doc. 10), Plaintiff sought and was granted leave to amend her Complaint. Doc. 28. On December 20, 2011, Plaintiff filed a First Amended Complaint ("FAC"). Doc. 32. On December 30, 2011, Defendants Osceola County, Futch, Banasco, Gaines and Adams filed a Motion to Dismiss the FAC. Doc. 34. Subsequently, Defendants Clerge and Pierre-Louis filed a Motion to Dismiss the FAC. Doc. 35. The Court granted Plaintiff's request to amend the FAC, denying Defendants' Motions to Dismiss as moot. Docs. 43, 45.

On January 31, 2012, Plaintiff filed the eight-count SAC. Doc. 44. Counts I-IV allege negligence against Defendant Osceola County under Florida's Wrongful Death Statute § 768.28 on behalf of the decedent, Saunders, and each of his three children. Id.; Doc. 73, pp. 3-4. Count V alleges deliberate indifference to the right to be free from cruel and unusual punishment pursuant to 42 U.S.C. § 1983 against Defendants Clerge, Futch, Banasco, Gaines, Adams and Pierre-Louis. SAC, p. 15. Count VI alleges deliberate indifference to the right to be free from cruel and unusual punishment pursuant to 42 U.S.C. § 1983 against Defendant Osceola County. Id., p. 20. Count VII alleges medical malpractice against Defendant Osceola County as Clerge's employer and Clerge individually. Id., ¶¶ 118-133. Count VIII alleges medical malpractice against Defendant Osceola County as Pierre-Louis' employer and Pierre-Louis individually. Id., ¶¶ 134-145.

II. STANDARD

To survive a motion to dismiss, a pleading must include a "'short and plain statement showing that the pleader is entitled to relief.'" Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Fed. R. Civ. P. 8(a)(2)). Labels, conclusions and formulaic recitations of the elementsof a cause of action are not sufficient. Id. (citing Bell Atlantic Corp, et al. v. Twombly, et al., 550 U.S. 544, 555 (2007)). Mere naked assertions, too, are not sufficient. Id. A complaint must contain sufficient factual matter, which, if accepted as true, would "state a claim to relief that is plausible on its face." Id. (quoting Twombly, 550 U.S. at 555). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (citation omitted). The court, however, is not bound to accept as true a legal conclusion stated as a "factual allegation" in the complaint. Id. at 1950. Therefore, "only a claim that states a plausible claim for relief survives a motion to dismiss." Id. For the purposes of a motion to dismiss, the court must view the allegations in the light most favorable to the plaintiff. Jackson v. Okaloosa County, Fla., 21 F.3d 1532, 1534 (11th Cir. 1994).

Upon consideration of a Motion to Dismiss based upon Federal Rule of Civil Procedure 12(b)(6), a district court must "limit[ ] its consideration to the pleadings and exhibits attached thereto". Grossman v. Nationsbank, N.A., 225 F.3d 1228, 1231 (11th Cir. 2000); Lexis v. Asplundh Tree Expert Co., 305 Fed. Appx. 623 (11th Cir. 2008). If the parties present evidence outside of the pleadings, and the district court considers that evidence, then the motion to dismiss is converted into a motion for summary judgment. Fed. R. Civ. P. 12(d); Finn v. Gunter, 722 F.2d 711, 713 (11th Cir. 1984).

III. ANALYSIS

A. The capacity in which Defendants are sued is evident in Counts V and VI

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