Bustetter v. Armor Corr. Health Servs., Inc.

Decision Date23 January 2013
Docket NumberCase No. 8:12–cv–1236–T–24 TGW.
Citation919 F.Supp.2d 1282
PartiesMark A. BUSTETTER, Plaintiff, v. ARMOR CORRECTIONAL HEALTH SERVICES, INC., et al., Defendants.
CourtU.S. District Court — Middle District of Florida


Norman Waara, Norman Waara, Sarasota, FL, for Plaintiff.

S. Renee Lundy, Dean, Ringers, Morgan & Lawton, PA, Orlando, FL, Weston F. Smith, Deacon, Moulds & Smith, PA, St. Petersburg, FL, Frederick Joseph Elbrecht, Sarasota, FL, for Defendants.


SUSAN C. BUCKLEW, District Judge.

This cause comes before the Court on Defendants' motions to dismiss. (Doc. No. 7, 8, 9, 10, 15). Plaintiff opposes the motions. (Doc. No. 18, 19, 20, 21).

I. Standard of Review

In deciding a motion to dismiss, the district court is required to view the complaint in the light most favorable to the plaintiff. See Murphy v. Federal Deposit Ins. Corp., 208 F.3d 959, 962 (11th Cir.2000) (citing Kirby v. Siegelman, 195 F.3d 1285, 1289 (11th Cir.1999)). The Federal Rules of Civil Procedure do not require a claimant to set out in detail the facts upon which he bases his claim. Instead, Rule 8(a)(2) requires a short and plain statement of the claim showing that the pleader is entitled to relief in order to give the defendant fair notice of what the claim is and the grounds upon which it rests. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1964, 167 L.Ed.2d 929 (2007) (citation omitted). As such, a plaintiff is required to allege “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Id. at 1965 (citation omitted). While the Court must assume that all of the allegations in the complaint are true, dismissal is appropriate if the allegations do not “raise [the plaintiff's] right to relief above the speculative level.” Id. (citation omitted). The standard on a 12(b)(6) motion is not whether the plaintiff will ultimately prevail in his or her theories, but whether the allegations are sufficient to allow the plaintiff to conduct discovery in an attempt to prove the allegations. See Jackam v. Hospital Corp. of Am. Mideast, Ltd., 800 F.2d 1577, 1579 (11th Cir.1986).

II. Background

Plaintiff alleges the following in his amended complaint (Doc. No. 4): Plaintiff was incarcerated in Sarasota County Jail in May and June of 2009 for a non-violent traffic offense. When he was taken into custody at the jail, Plaintiff informed the medical staff of his medical conditions and current medications. Plaintiff's medical conditions included: Type I diabetes (for which he was insulin dependent and taking two types of insulin three to five times per day), a prior heart attack, and blindness in one eye.

While he was incarcerated, Nurse Carstens gave Plaintiff the medication Avandia, which is used for Type II diabetes, not Type I diabetes. Carstens gave Plaintiff Avandia without speaking to Plaintiff about his current medications or informing him that he was being given this medication. Plaintiff contends that the nurses who administered his medications as a matter of policy would not tell him what medications he was being given, and if he refused any of the medications, none of his medications would be given to him. Had Plaintiff been informed that he was being given Avandia, he would have refused it because it is used to treat Type II diabetes and because of its side-effects (which include increased risk for adverse cardiac events to patients with a history of heart problems and increased risk of macular edema and peripheral edema). Additionally, Plaintiff had taken Avandia in the past and had stopped taking it because of his adverse reactions to the medication.

Also while he was in the jail, Plaintiff's blood sugar levels were only measured twice a day and he was given insulin only twice a day, despite the fact that he normally tested his blood sugar levels and took insulin up to five times per day. As a result of the limited blood sugar testing and the lack of insulin, Plaintiff's blood sugar levels were consistently too high the entire time he was in jail, which caused damage to his health.

Additionally, Dr. Dunn and Nurse Carstens prescribed and supervised the administration of excess levels of statins to Plaintiff. These excess levels of statins also caused damage to Plaintiff's health.

After seven weeks of taking Avandia, living with high blood sugar levels, and being administered excess levels of statins, Plaintiff suffered a heart attack that led to his hospitalization and surgery to implant a cardioverterdefibrillator. Plaintiff contends that the heart attack and subsequent cardiac implant were caused by the medical negligence and deliberate indifference of the jail and the medical providers. Furthermore, after his release from jail, Plaintiff developed macular edema that has significantly reduced the vision in his non-blind eye, peripheral edema, foot infections, and a diabetic foot that will cause him to walk with a limp for the rest of his life. Plaintiff contends that these medical conditions resulted from the medical treatment that he received while in the Sarasota County jail.

On June 1, 2012, Plaintiff filed the instant lawsuit against six defendants: (1) the Sarasota County Sheriff's Department, (2) Sarasota County Sheriff Thomas Knight, (3) Armor Correctional Health Services, Inc. (Armor), a corporation that contracted with the Sheriff and jail to provide medical services to prisoners in the jail, (4) Michael Edward Dunn, M.D., who was hired by Armor and was a doctor that provided medical services to Plaintiff while he was in jail, (5) Sonya Kay Carstens, ARNP, who was hired by Armor and was a nurse that provided medical services to Plaintiff while he was in jail, and (6) Diamond Pharmacy Services (“Diamond”), which provided the medications that were prescribed to Plaintiff while he was in jail.

Plaintiff asserts three counts in his amended complaint. Count I is a state law medical malpractice claim against Armor, Carstens, Dunn, the Sheriff, and the Sarasota County Sheriff's Department. Count II is a negligence claim against Diamond. Count III is a § 1983 claim alleging deliberate indifference to Plaintiff's need for medical treatment against Armor, Carstens, Dunn, the Sheriff, and the Sarasota County Sheriff's Department.1

III. Motions to Dismiss

All of the defendants have filed a motion to dismiss. Accordingly, the Court will address each motion.

A. Sheriff Thomas Knight and the Sarasota County Sheriff's Department

Sheriff Knight and the Sarasota County Sheriff's Department (“SCSD”) jointly filed a motion to dismiss. With regard to the medical malpractice and § 1983 claims against the SCSD, the SCSD argues that the claims against it must be dismissed, because the SCSD is not a proper party to the action. Instead, the SCSD argues that Sheriff Knight is the proper party defendant for such claims. In response, Plaintiff concedes that dismissal of the claims against the SCSD is warranted, and he voluntarily dismisses these claims. (Doc. No. 18, p. 3). Accordingly, the SCSD is no longer a party to this action.

Sheriff Knight moves to dismiss the medical malpractice claim asserted against him in Count I. Specifically, Knight argues that dismissal is warranted, because Plaintiff did not comply with the mandatory notice requirements imposed by Florida Statute § 768.28(6)(a), which is a prerequisite to instituting a Florida tort action against a governmental entity in Florida.2 Plaintiff responds that he has generally alleged performance of all conditions precedent in paragraph 27 of his amended complaint, and as such, his allegation of compliance is sufficient and must be accepted as true when this Court rules on the motion to dismiss. See Ritter v. City of Jacksonville, 2007 WL 2298347, at *3 (M.D.Fla. Aug. 7, 2007) (stating that a general averment that all conditions precedent have been performed is sufficient); Smith v. Rainey, 747 F. Supp.2d 1327, 1337 (M.D.Fla.2010) (citations omitted).

The Court agrees with Plaintiff that his allegation of performance of all conditions precedent is sufficient and must be accepted as true when ruling on this motion. If Knight would like to challenge the veracity of Plaintiff's allegation of performance of all conditions precedent, Knight may do so via a motion for summary judgment. However, at this stage in the proceedings, the Court must accept Plaintiff's allegation as true and deny Knight's motion to dismiss.

B. Armor Correctional Health Services, Inc.

Armor moves to dismiss the medical malpractice and § 1983 claims asserted against it. With regards to the medical malpractice claim, Armor argues that dismissal is warranted because the two-year limitations period set forth in Florida Statute § 95.11(4)(b) has expired. Section 95.11(4)(b) provides the following:

An action for medical malpractice shall be commenced within 2 years from the time the incident giving rise to the action occurred or within 2 years from the time the incident is discovered, or should have been discovered with the exercise of due diligence; however, in no event shall the action be commenced later than 4 years from the date of the incident or occurrence out of which the cause of action accrued.... An “action for medical malpractice” is defined as a claim in tort ... for damages because of the death, injury, or monetary loss to any person arising out of any medical, dental, or surgical diagnosis, treatment, or care by any provider of health care.

Fla. Stat. § 95.11(4)(b) (emphasis added).

Armor argues that because Plaintiff received the allegedly negligent medical treatment while in jail in May and June of 2009, the limitations period expired by June of 2011. Therefore, because Plaintiff did not file this lawsuit until June 1, 2012, Armor contends that the medical malpractice claim is barred by the two-year limitations period.

The flaw in Armor's argument, however, is that the amended complaint does not identify when Plaintiff disc...

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