Gowan v. Bay County, 99-206.

• Decision Date: 27 October 1999
• Docket Number: No. 99-206.,99-206.
• Citation: 744 So.2d 1136
• Parties: Franklin B. GOWAN, Appellant, v. BAY COUNTY, Florida, Bay County Sheriff's Office, Corrections Corporation Of America, Appellees.
• Court: Florida District Court of Appeals

744 So.2d 1136

Franklin B. GOWAN, Appellant, v. BAY COUNTY, Florida, Bay County Sheriff's Office, Corrections Corporation Of America, Appellees.

No. 99-206.

District Court of Appeal of Florida, First District.

October 27, 1999.

Franklin B. Gowan, Appellant, Pro Se.

Clifford C. Higby of Bryant & Higby, Chartered, Panama City, for Appellees.

JOANOS, J.

Franklin B. Gowan, appellant, appeals an order dismissing with prejudice the allegations of his second amended complaint which pertain to Corrections Corporation of America (CCA). We reverse the order of dismissal with prejudice, and remand for further proceedings.

In his second amended complaint, appellant raised claims against the Bay County Sheriffs Office, Bay County, and CCA, concerning injuries appellant allegedly suffered during his incarceration in a facility operated by CCA under its contract with Bay County. Appellant claimed violation of his civil rights pursuant to 42 U.S.C. § 1983, intentionally inhumane treatment resulting in personal injuries to appellant, and denial of adequate medical treatment for the injuries. Appellant's specific allegations against CCA included claims that Don Grant, a security guard employed by CCA, required appellant, who is a fair-skinned individual and very sensitive to sun exposure, to remain in direct sunlight on July 5, 1993, from 12:30 p.m. until 3:50 p.m. Appellant further alleged the ultraviolet radiation index was "8" on that particular date, and that an index of 8 is considered a high reading. Appellant alleged he received severe sunburns on all parts of his body which were not covered by the prison uniform, and that he now has skin cancers as a result of the treatment inflicted by CCA's security guard. The complaint also includes allegations that the prison nurse, a CCA employee, failed to provide an analysis of the degree of appellant's sunburn damage, and failed to provide adequate care to appellant for the injuries he suffered. CCA filed a motion to dismiss, alleging the complaint failed to state a cause of action as to CCA. Among other things, CCA maintained appellant was unable to state a claim for vicarious liability for intentional tort or for § 1983 civil rights violations against CCA. The trial court granted CCA's motion to dismiss, finding the complaint failed to state a cause of action as to CCA. The dismissal was with prejudice, and final judgment was granted in CCA's favor.

"[O]n a motion to dismiss for failure to state a cause of action, the circuit court may look only within the four corners of the complaint, must accept the plaintiff's allegations as true, and must resolve all inferences in the plaintiff's favor." See Wilson v. News-Press Publishing Co., 738 So.2d 1000 (Fla. 2d DCA 1999)

. See also Gladstone v. Smith, 729 So.2d 1002, 1003 (Fla. 4th DCA 1999)("A claim should not be dismissed with prejudice `without giving the plaintiff an opportunity to amend the defective pleading, unless it is apparent that the pleading cannot be amended to state a cause of action.'"); Abrams v. General Insurance Co., Inc., 460 So.2d 572, 573 (Fla. 3d DCA 1984). An opportunity to amend the complaint should be freely granted and should not be denied unless the privilege has been abused. See id. at 1004.

To recover on a § 1983 claim, a plaintiff must prove that (1) he was deprived of a right secured by the Constitution and laws of the United States, and (2) the person depriving the plaintiff of that right acted "under color of state law." See 42 U.S.C. § 1983. See also Barton Protective Services, Inc. v. Faber and Worlds, 745 So.2d 968 (Fla. 4th DCA 1999)

. See also Bendiburg v. Dempsey, 909 F.2d 463, 469 (11th Cir.1990).

Under common law principles, an employer is liable in damages for the wrongful act of his employee that causes injury to another person, "if the wrongful act is done while the employee is acting within the apparent scope of his authority as such employee to serve the interests of the employer, ... unless the wrongful act of the employee was done to accomplish his own purposes, and not to serve the interests of the employer." See Stinson v. Prevatt, 84 Fla. 416, 418-419, 94 So. 656, 657 (1922),...