Kruger v. Jenne

• Decision Date: 19 June 2000
• Docket Number: No. 98-6616-CIV.,98-6616-CIV.
• Parties: Kim P. KRUGER, Plaintiffs, v. Ken JENNE, Sheriff of Broward County, and EMSA Correctional Care, Inc., Defendants.
• Court: U.S. District Court — Southern District of Florida

164 F.Supp.2d 1330

Kim P. KRUGER, Plaintiffs, v. Ken JENNE, Sheriff of Broward County, and EMSA Correctional Care, Inc., Defendants.

No. 98-6616-CIV.

United States District Court, S.D. Florida, Miami Division.

June 19, 2000.

Lawrence D. Silverman, Jeffrey D. DeCarlo of Akerman, Senterfitt & Eidson, P.A., Miami, FL, for Kim P. Kruger.

Scott J. Weiselberg, Daniel Alter of Bunnell, Woulfe, Kirschbaum, Keller & McIntyre, P.A., Fort Lauderdale, FL, for EMSA Correctional Care, Inc.

Summer M. Barranco of Purdy, Jolly & Giuffreda, P.A., Fort Lauderdale, FL, for Ken Jenne.

ORDER ADOPTING MAGISTRATE JUDGE'S RECOMMENDATION

JORDAN, District Judge.

The Court has reviewed the magistrate judge's report and recommendation regarding the defendants' motions to dismiss and Sheriff Jenne's motion for a more definite statement as well as Sheriff Jenne's objections to the report. Having conducted a de novo review of the arguments presented and the magistrate judge's recommended resolution, the Court adopts the magistrate judge's report and recommendation as an order.

The defendants' motions to dismiss the complaint [D.E. 86 & 88-1] are therefore DENIED. Sheriff Jenne's motion for a more definite statement [D.E. 88-2] is likewise DENIED.

REPORT OF MAGISTRATE JUDGE

SORRENTINO, United States Magistrate Judge.

I. Introduction

In this civil rights action, the plaintiff Kim P. Kruger, who in January 1995 suffered total blindness and lost all visual acuity as a result of Bilateral Optic Atrophy with assistance of counsel has filed an amended complaint (DE# 83) and notice of scrivener's error (DE# 94), alleging that he was subjected to multiple deprivations which occurred between January 6, 1998 and July of 1998, while he was incarcerated at the North Broward Detention Center ("NBDC"). The alleged deprivations relate to Kruger's blindness and other medical matters.

Two defendants are designated in the amended complaint: 1) Ken Jenne, Sheriff of Broward County; and 2) EMSA Correctional Care, Inc. ("EMSA"), the provider of medical care for NBDC inmates.

This Cause is before the Court upon a motion to dismiss by EMSA (DE# 86), and Sheriff Jenne's motion to dismiss or for a more definite statement (DE# s 88-1 and 88-2). The plaintiff filed responses, and Jenne filed a reply.

The plaintiff Kruger invokes both 42 U.S.C. § 1983, and the Americans With Disabilities Act of 1990, 42 U.S.C. § 12101, et seq. [the "ADA"]. The amended complaint is divided into four Counts, on each of which declaratory relief and damages are sought by the plaintiff. The claims and allegations in the four counts are, essentially, as follows:

Count I: (ADA — Sheriff Jenne in his Official Capacity)

The plaintiff, who is blind, requires a personal aide and/or a guide stick (cane) as well as other accommodations such as an electric razor and a "talking book" (which plays recordings, of persons reading the text of written materials) to assist him in participating in major life activities.

These forms of visual and functional assistance were denied to the plaintiff between January 6, 1998, on which date he arrived at the NBDC, and April 16, 1998, on which date the Broward Circuit Court entered an Order requiring Sheriff Jenne to provide the plaintiff with visual and functional assistance, and requiring the Sheriff to return his electric razor and talking book which had been confiscated from the plaintiff in retaliation because he was unable to keep his cell clean, and because of his repeated requests that he needed assistance.

The needed assistance and accommodations were denied until at least April 16, 1998, despite-records that were transferred to the NBDC with the plaintiff detailing his medical needs, repeated written requests to EMSA and Sheriff Jenne's employees, and letters from the plaintiff to the Sheriff himself. As a result, the plaintiff was unable to participate in services, benefits, or programs at the jail. He was unable to access the law library, participate in outdoor and indoor physical exercise, access other parts of the NBDC, and participate in other forms of recreation.

The plaintiff also was forced to live in a cell that was not ADA approved or equipped for the needs of a blind person. Although the plaintiff did not suffer physical injuries while inside his own cell, the failure to accommodate the his visual needs rendered the facilities unsafe for him. Because he could not see he was injured in three separate slip and fall accidents outside of his cell, on February 19, March 1, and March 27, 1998.

Count II: (§ 1983 — Sheriff Ken Jenne Individually)

Despite three letters directed to Sheriff Jenne personally from the plaintiff, and a letter sent to Jenne from Commissioner Parish, the defendant sheriff failed to accommodate the plaintiff's needs despite his knowledge that failure to do so could result in far more serious consequences to plaintiff Kruger than might occur with prompt attention. Due to Jenne's failure to act the plaintiff was unable to access the law library, was unable to exercise or participate in other forms of recreation, and suffered physical injuries, pain, discomfort, and mental anguish. In failing to accommodate the plaintiff's serious needs, Sheriff Jenne was deliberately indifferent to the plaintiff's Eighth Amendment rights.

Count III (§ 1983 — Sheriff Ken Jenne in his Official Capacity)

Sheriff Jenne and/or his employees and agents knew at the time of the plaintiff's transfer to the NBDC that he was in serious need of-visual and functional assistance in the form of a personal aide and/or a cane, but took no action or insufficient action to accommodate the plaintiff's needs despite their knowledge that failure to do so could result in far more serious consequences to plaintiff Kruger than might occur with prompt attention. Jenne and/or his employees and agents knew that Kruger suffered personal injuries, and was in serious need of special treatment and additional care for his injuries, and that their failure to act despite their knowledge that failure to do so could result in far more serious consequences to plaintiff Kruger than might occur with prompt attention. As a result of their failure to act, the plaintiff suffered great physical injury, pain, discomfort, and mental anguish. In failing to accommodate the plaintiff's serious needs, Sheriff Jenne, and/or his employees or agents, were deliberately indifferent to the plaintiff's Eighth Amendment rights.

Count IV: (§ 1983, Deliberate Indifference — EMSA)

EMSA knew from the time of his transfer to the NBDC that plaintiff Kruger was in serious need of visual and functional assistance in the form of a personal aide and/or cane, but took no steps to accommodate him. EMSA also knew of Kruger's physical injuries, but took no steps to provide special treatment and additional care for Kruger's injuries, despite its knowledge that failing to do so could result in far more serious consequences to plaintiff Kruger that might occur with prompt attention. In addition, the plaintiff suffered other medical problems for which improper and/or delayed medical treatment was provided. As a direct and proximate result of EMSA's failure to accommodate the plaintiff's needs for visual and functional assistance, and failure to treat his serious medical needs, the plaintiff Kruger suffered great physical injury, pain, discomfort and mental anguish, thereby subjecting him to deliberate indifference to his Eighth Amendment rights. The medical indifference was in part due to the policy, practice, and procedure of EMSA to refuse and/or delay providing special medical treatment to prisoners as a cost saving method of administering medical care at the NBDC.

II. Discussion

Upon consideration of a motion to dismiss a complaint pursuant to Fed.R.Civ.P. 12(b)(6), the allegations of the complaint must be construed in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); Cannon v. Macon County, 1 F.3d 1558, 1565 (11 Cir.1993).

A. EMSA's Motion to Dismiss (DE# 86)

EMSA has filed a motion to dismiss the § 1983 claims for damages against it, as alleged in Count IV of the amended complaint. EMSA argues that Count IV of the amended complaint must be dismissed because EMSA cannot be held liable in a § 1983 suit for damages under the theory of supervisory liability and the doctrine of respondeat superior.

The defendant EMSA is correct in arguing that just as supervisory officials cannot be held liable in a § 1983 suit under the doctrine of supervisory liability or the theory of respondeat superior,¹ neither can an employer such as EMSA simply be held liable under a theory of respondeat superior for an alleged § 1983 violation by one of its employees. See: Powell v. Shopco Laurel, Co., 678 F.2d 504 (4 Cir.1982).

In this case, however, the plaintiff has alleged that EMSA was put on written notice of his special needs for visual assistance, including a personal aide and/or cane, and his requests were ignored; and further alleges that delays in providing medical care for his serious medical needs, and the provision of improper and inadequate medical care were the direct result of EMSA's custom, policy, or procedure to refuse and/or delay providing special medical treatment to prisoners as a cost saving method of administering medical care at the NBDC.

The plaintiff Kruger alleges that EMSA provided inadequate and/or delayed medical care for injuries which he suffered in his three slip an fall accidents, as well as for unrelated medical matters.

The alleged deliberate indifference to Kruger's serious medical needs, and delays in providing treatment are described as follows.

Following his February 19, 1998 accident, in which he fell over a wheelchair in an elevator and injured his right shoulder, EMSA employees ignored Kruger's repeated requests for reevaluation and further x-rays, after initial x-rays failed to show any fracture or...