Moss v. Leesburg Reg'l Med. Ctr.
| Decision Date | 07 February 2020 |
| Docket Number | Case No: 5:17-cv-535-Oc-32PRL |
| Parties | BRITISH D. MOSS, next of kin to Gail A. Moss, deceased, Plaintiff, v. LEESBURG REGIONAL MEDICAL CENTER, et al., Defendants. |
| Court | U.S. District Court — Middle District of Florida |
Plaintiff, an inmate of the Florida penal system, initiated this action by filing a civil rights Complaint as the "next of kin" to his deceased mother, Gail A. Moss. See Doc. 1 (Complaint). His mother was a federal inmate at FCC Coleman at the time of her death. Plaintiff brings this suit to seek redress for alleged constitutional violations that led to or contributed to his mother's death.
In the Complaint, Plaintiff named the following Defendants: Leesburg Regional Medical (LRMC); Gregory R. Lewis, Hospital Administrator and C.E.O of LRMC; Bureau of Prisons, and Kyle C. Shaw, M.D., Leesburg County, Florida, Medical Examiner. See Doc. 1. Plaintiff then filed an Amended Complaint,1 see Doc. 15, in which he named the following Defendants: LRMC; Lewis; Bureau of Prisons (FCC) Coleman; Shaw; and "Six Unnamed John Doe Employees of B.O.P/Leesburg Medical Reg. Ctr." Doc. 15 at 3. On June 6, 2018, the Court ordered service of the Amended Complaint. See Doc. 19.
In response to the Amended Complaint, Defendant Shaw filed a motion to dismiss, see Doc. 28, arguing, inter alia, that Plaintiff does not have standing to bring this action on behalf of his mother because he does not allege that he is the personal representative of his mother's estate. Doc. 28 at 6. Defendant LRMC also filed a motion to dismiss, see Doc. 35, arguing that Plaintiff lacks standing to pursue his claims.2 Doc. 35 at 5. In response to the motions to dismiss, Plaintiff requested leave to file a second amended complaint, see Doc. 39, and that same day, filed a second amended complaint,3 see Doc. 41. A few days later, he filed a third amended complaint. See Doc. 42.
On November 28, 2018, the Court entered an Order striking the second and third amended complaints and directed Plaintiff to file a response to theDefendants' motions to dismiss. See Doc. 49. Plaintiff then filed a response, see Doc. 51, in which he realleged the claims in his Amended Complaint. However, Plaintiff adamantly argued that he has "'never' mention[ed] nor assum[ed] the position of [a] Bivens'4 act," but instead wished to clarify that his action is a "42 U.S.C. § 1983 civil rights complaint, for the negligence death of his mother." Doc. 51 at 1. In light of Plaintiff's clarification, the Court entered an Order acknowledging that the Amended Complaint alleged that he was bringing the action under § 1983 and not Bivens, but despite this concession, advised Plaintiff that he cannot continue with a § 1983 action against the named federal Defendants, because § 1983 is inapplicable to federal employees. See Doc. 53. As such, the Court directed Plaintiff to show cause as to why the Court should not dismiss the federal Defendants from this case. Id. In response, Plaintiff argued that he was suing the federal Defendants under the Federal Tort Claims Act and § 1983. See Doc. 54.
Upon consideration of Defendants' motions to dismiss, see Docs. 28; 33; 35, and Plaintiff's responses, see Doc. 51; 54, the Court found it appropriate to allow Plaintiff an opportunity to file a second amended complaint. Doc. 55. In doing so, the Court explained that Plaintiff's second amended complaint must address Defendants' standing argument and "include an explanation regardinghis ability to bring this action as a survivor of his deceased parent." See Doc. 55. It further noted that "Plaintiff cannot serve as a personal representative under Florida law because of his felony conviction." Id. at 4. The Court explained that Plaintiff may assert a FTCA claim but reminded Plaintiff that Bivens provides Plaintiff with the means to challenge an individual federal official's conduct, while § 1983 only applies to the constitutionality of state official's conduct. Id. at 4 n.1. Plaintiff's operative Second Amended Complaint followed. See Doc. 62 (SAC).
In the SAC, Plaintiff names the following Defendants: LRMC; Lewis; Shaw; "(10) named employees for Leesburg Medical"; and "(6) named employees for the United States." See id. at 2-3. He also, for the first time, names the following employees of LRMC as Defendants: Daquita Castellanos; Alex Seda, M.D.; Ana Duarte-Chipi, M.D.; Gina Torres, M.D.; Richard Li, M.D.; Manuel Alvarado, M.D.; Miratiquillatt Hessami, M.D.; Nitza A. Torres, M.D.; and Dwarakwath R. Banala, M.D. Id. He further names the following federal employees at FCC Coleman as Defendants: Tamara Jarvis; Charles E. Samuels; Michelle Story; Scott A. Middlebrooks; Hector L. Garcia; Olga Garajales; Jorge Nieto; and Kristina Miller. Id. at 14-15. Lastly, he names the United States Public Health Services as a Defendant. Id. at 15.
While not a picture of clarity, the SAC appears to be based on allegations that Defendants violated his mother's constitutional rights by acting with negligence and/or deliberate indifference with respect to her medical care. Plaintiff contends that Defendants improperly medicated his mother and performed illegal surgical procedures that led to or contributed to her death. He further argues that following his mother's death, Defendant Shaw intentionally destroyed evidence of the other Defendants' wrongful acts by declining to conduct an autopsy and fraudulently indicating on her death certificate that she died of natural causes. See Doc. 68 at 2.
He raises seven counts for relief and names all Defendants in each count, see Doc. 62 at 22, 25, 27, 28, 30, 32, 34, 35. Plaintiff labels the counts as follows: (I) "42 U.S.C. § 1983 in violation of general knowledge of prescription medication"; (II) "42 U.S.C. § 1983 in violation of intentional wrong 'stent procedure'"; (III) "Federal Tort Claims Act in violation of strict liability act"; (IV) "Federal Tort Claims Act In Violation of Equal Protection Clause"; (V) "Federal Tort Claims Act In Violation of (abuse) Against 42 U.S.C. § 12101-12213 Americans with Disabilities Act (ADA)"; (VI) Federal Tort Claims Act in Violation of Claims Against Official Misconduct"; (VII) Federal Tort Claims Act in Violation of Gross Negligence/Wrongful Death." See generally Doc. 62. As relief, Plaintiff requests "a preliminary and permanent injunction in the formof the . . . witness list and depositions" of expert pharmacologists and medical personnel; compensatory damages in the amount of $925,000.00 against each Defendant; punitive damages in the amount of $725,000,000 against each Defendant; and any additional relief that this Court deems just and proper. Doc. 62 at 37-39.
This cause is before the Court for review under 28 U.S.C. § 1915 and on Defendant Shaw's Motion to Dismiss Plaintiff's Second Amended Complaint, or in the Alternative, Motion for a More Definite Statement and Motion to Strike, and Incorporated Memorandum of Law.5 See Doc. 66 (Motion). Defendant Shaw seeks dismissal of this case, because Plaintiff: (1) lacks standing to bring this action on behalf of his mother; see id. at 2, (2) fails to allege proper venue, id. at 5; and (3) fails to state a cause of action for which relief may be granted, see generally id. at 5-14. The Court previously advised Plaintiff that the granting of a motion to dismiss may represent an adjudication of this case which may foreclose subsequent litigation on the matter. See Doc. 19. Plaintiff filed a response in opposition to the Motion. See Doc. 68. He also filed a second motionto appoint counsel, see Doc. 64; a request for production of documents, see Doc. 71; and a "Motion for Deposition Upon Written Questions," see Doc. 73.
Defendant Shaw argues that the SAC must be dismissed, because Plaintiff again fails to allege proper standing to pursue this action. Doc. 66 at 2. He asserts that Plaintiff does not have standing to bring any claim on behalf of his mother or recover damages for any constitutional violation that his mother may have suffered, because he has not been appointed as the personal representative of his mother's estate. Doc. 66 at 2.
In his SAC, Plaintiff alleges he has standing "over 'ALL' decisions of his own mother," because he is "the executive custodian over" his mother's affairs. Doc. 62 at 29. He does not contend that he or anyone else has been appointed as the personal representative of his mother's estate. Instead, he merely attempts to demonstrate his labors of seeking appointment by highlighting his efforts to obtain counsel and attaching letters from various attorneys who have declined to represent him in this case. See id. at 39, 95-103.
The Eleventh Circuit has not directly addressed whether a civil rights action survives a decedent's death when Florida is the forum state. But see Carringer v. Rodgers, 293 F.3d 1299, 1301 (11th Cir. 2002) (); see also 42 U.S.C. § 1988(a). However, our sister court has engaged in a thorough analysis of this question. See Sharbaugh v. Beaudry, 267 F. Supp. 3d 1326, 1334-35 (N.D. Fla. 2017). The Northern District held that Florida's Wrongful Death Act "fills the survival gap," because it "provides a meaningful remedy" in § 1983 actions alleging violation of one's constitutional rights that resulted in wrongful death. Id. at 1335. While Florida's comprehensive wrongful death act does not permit recovery for a decedent's pain and suffering when injury results in death, it does permit recovery of pain and suffering damages in favor of the survivors. In otherwords, the court recognized, a decedent's damages are "transferred" to the survivors. Id. at 1334. See also Martin...
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