Freyre v. Hillsborough Cnty. Sheriff's Office
| Decision Date | 13 May 2014 |
| Docket Number | Case No. 8:13-cv-02873-T-27TBM |
| Court | U.S. District Court — Middle District of Florida |
| Parties | DORIS FREYRE, Plaintiff, v. HILLSBOROUGH COUNTY SHERIFF'S OFFICE et al., Defendants. |
BEFORE THE COURT are motions to dismiss the Amended Complaint filed by Defendants Julie Emerson (Dkt. 36), Alexa Argerious, Angeline Atilla, Jill Adams, and Tiffany Short (Dkt. 37), Sheriff David Gee in his official capacity of Sheriff of Hillsborough County (Dkt. 44), Jessica Pietrzak (Dkt. 45), Iris C. Valdez-Corey (Dkt. 46), and the State of Florida (Dkt. 47).1 Plaintiff responded in opposition to all of the motions (Dkts. 52, 54, 50, 53, 51). The State of Florida, Emerson, Argerious, Atilla, Adams, and Short filed a joint Reply (Dkt. 64), as did Sheriff Gee, Pietrzak, and Valdez-Corey (Dkt. 65).
Upon consideration, the motions to dismiss filed by Emerson, Argerious, Atilla, Adams, Short, Pietrzak, Valdez-Corey, and the State of Florida (Dkts. 36, 37, 45, 46, 47) are GRANTED. The motion to dismiss filed by Sheriff Gee (Dkt. 44) is GRANTED in part and DENIED in part. Accordingly, Counts I through III of the Amended Complaint are dismissed without prejudice and Plaintiff is granted leave to file a second amended complaint.
Plaintiff Doris Freyre is allegedly disabled due to a back injury and carpel tunnel syndrome, leaving her unable to lift more than ten pounds (Dkt. 29 ¶ 32). Freyre's daughter, M.A.F., was born with severe developmental and physical disabilities and required assistance with all daily tasks (id. ¶ 34). M.A.F. remained in a wheelchair or in bed at all times and could not lift or reposition herself without assistance (id.). Despite Freyre's disability, she cared for M.A.F. as a single parent, receiving additional support from Medicaid for home health services, home-bound schooling, and physical and speech therapy (id. ¶ 37). Until March 29, 2011, Freyre received home health care assistance every day from 7:00 a.m. until midnight, but did not have home health care during the early morning hours (id. ¶ 38).
On March 16, 2011, the Hillsborough County Sheriff s Office allegedly received a report that Freyre was not adequately caring for M.A.F. and was reluctant to take her daughter to the hospital when medical care was required (id. ¶ 39). As a result of the report, Defendant Jessica Pietrzak, a Child Protective Investigator with HCSO, began an investigation into Freyre's care of M.A.F. (id. ¶ 40). Pietrzak spoke with M.A.F.'s care coordination nurse, Julie Emerson, who was employed by Children's Medical Services, a division of the Florida Department of Health (id. ¶¶ 22, 40). In their March 21, 2011 conversation, Emerson allegedly told Pietrzak that Freyre "seems to be overwhelmed" and informed Pietrzak of her concerns that Freyre was physically unable to care for M.A.F. without additional home health care assistance (id. ¶ 40). Emerson also allegedly informed Pietrzak that "there does not appear to be any indication that the family will get 24 hour care" and that "no other family or back up care exists for the child" during the early morning hours (id.).
As a result of the call between Emerson and Pietrzak, state agencies allegedly convened a "multi-disciplinary staffing" attended by Emerson and Pietrzak, as well as Maxim ClinicalSupervisor Erin Thompson, Child Protection Specialist Laura Dill, "CMS FHP" Joanne White, Sheriff's Office Child Protective Investigations General Manager Heather Grates, and Alexis Argerious, the Assistant Attorney General for Children's Legal Services (id. ¶ 41). After receiving input from the others in attendance, Argerious decided to file a petition to shelter2 M.A.F. at Tampa General Hospital until a medical foster home could be secured (id. ¶ 42). The petition was filed on March 30, 2011, in the Circuit Court of the Thirteenth Judicial Circuit, in and for Hillsborough County, Florida (id.).
At the hearing on the petition to shelter, Freyre denied that she had abused M.A.F. and argued that she missed medical appointments "because she did not want to take M.A.F. out and expose her to germs or inclement weather," and because "she was a better judge of M.A.F.'s medical condition and medical needs" than others (id. ¶ 44). After argument, the Circuit Court granted the petition to shelter, but also decided that Freyre was entitled to unlimited visitation with M.A.F., and that M.A.F. was to be returned home as soon as Freyre procured home health care from midnight to 7:00 a.m. (id. ¶ 45).
Following the hearing, Hillsborough Kids, Inc.3 Resource Specialist Kris Karstens4 tried to procure additional home health care for M.A.F. during the early morning hours (id. ¶ 47). After initial progress, Freyre alleges that Emerson telephoned Karstens and advised him to stop all attempts to obtain nursing care for M.A.F. (id. ¶ 52). Specifically, Freyre alleges that Emerson falsely informed Karstens that Medicaid has not and would not authorize 24-hour care for M.A.F. (id. ¶¶52, 53). Accordingly, Emerson believed it to be inappropriate for Hillsborough Kids to attempt to obtain temporary 24-hour care until Medicaid could approve it, because Freyre would not be able to care for M.A.F. after the stopgap coverage concluded (id. ¶ 52).
Allegedly due to Emerson's assertions regarding the unavailability of 24-hour care, the agencies and child protective services involved in M.A.F.'s care and investigation concluded that 24-hour care for M.A.F. would not be available and ceased attempts to obtain the care required between midnight and 7:00 a.m. As a result, HCSO employees and other state agencies allegedly agreed that M.A.F. would not be reunited with Freyre, and they began the process of finding institutionalized care for M.A.F. (id. ¶¶ 55, 56).
The Attorney General, through attorney Angeline Attila, then filed a dependency petition5 based on Freyre's disability and inability to care for M.A.F. (id. ¶ 57). At an April 14, 2011 status hearing on the petition, Attila allegedly made a series of misrepresentations to the Circuit Court regarding Freyre's disability, M.A.F.'s condition, the court's comments from the March 30 hearing on the shelter petition, and the availability of 24-hour Medicaid assistance for M.A.F. (id. ¶¶ 57, 58). Attila concluded the hearing by informing the court that Hillsborough County could not ensure the safety and well-being of M.A.F. as long as she remained at home with Freyre (id. ¶ 57). The Circuit Court ultimately determined that the previously entered shelter order could not be dissolved without an evidentiary hearing, which was set for the week of June 20, 2011 (id. ¶ 59).
Meanwhile, Hillsborough Kids began working with staff at Tampa General Hospital to locate a geriatric nursing facility that would accept M.A.F. permanently (id. ¶¶ 60-62). The only nursing facility that could provide the appropriate level of care was in Miami-Dade County, and the spot available for M.A.F. would be taken by another patient if not secured quickly (id. ¶¶ 62, 63). Dueto the short timeline, Jill Adams, a supervising attorney with the Florida Attorney General's Office, contacted another attorney in the Attorney General's Office, Tiffany Short, and advised Short that there were no legal impediments to moving M.A.F. to Miami-Dade County and that Short should begin making arrangements (id. ¶ 64). Freyre alleges that she consistently objected to any plans to move M.A.F. (id. ¶¶ 65, 72).
As the state officers prepared to move M.A.F. to Miami-Dade County, Freyre asked to accompany M.A.F. on the trip, but her request was denied (id. ¶ 73). The officers in charge of M.A.F.'s transport to Miami-Dade County allegedly failed to provide M.A.F. necessary care and medication during the trip (id. ¶¶ 74-76). M.A.F. became "hysterical" and dehydrated, and she died soon after arriving at the nursing facility in Miami-Dade County (id. ¶ 75).
Freyre brings five claims against Defendants. It is important to note that all of the claims are brought on Freyre's behalf-no claims are brought on behalf of M.A.F. Count I is a violation of Title II of the Americans with Disabilities Act, 42 U.S.C. § 12132, alleging that Nextgen Alliance, HCSO,6 and the State of Florida discriminated against Freyre by "denying [Freyre] medically necessary services," resulting in M.A.F.'s unnecessary institutionalization and death (Dkt. 29 ¶¶ 79, 83). Freyre further alleges that Nextgen Alliance, Sheriff Gee, and the State of Florida discriminated against her by segregating M.A.F. and denying Freyre and M.A.F. access to existing community programs (id. ¶ 85). Count II is a violation of Section 504 of the Rehabilitation Act, 29 U.S.C. § 794(a), also brought against Nextgen Alliance, Sheriff Gee, and the State of Florida. The allegations supporting Count II are virtually identical to those supporting Count I.
Count III is a claim for conspiracy to deny civil rights brought under 42 U.S.C. § 1985(3)against Valdez-Corey, Pietrzak, Emerson, Agerious, Attila, Adams, and Short.7 Freyre alleges that these Defendants conspired to deprive her of her constitutional rights to raise M.A.F. as she saw fit and to be reunited with M.A.F. Counts IV and V assert violations of 42 U.S.C. § 1983 against Nextgen Alliance and Sheriff Gee, respectively. Freyre alleges that Nextgen Alliance and Sheriff Gee deprived her of her constitutional rights as a parent by removing M.A.F. to a distant facility and preventing their reunification.
A complaint should 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 Rule does not require detailed factual allegations, but it demands more than an unadorned, conclusory accusation of harm. Ashcroft v. Iqbal, 556 U.S. 662,678 (2009). The complaint must "plead all facts establishing an entitlement to relief with more than 'labels and conclusions' or a 'formulaic recitation of the elements of a...
To continue reading
Request your trial