Shaw v. Scerbo

Decision Date01 August 2022
Docket Number2:22-cv-00105-JES-NPM
PartiesWILLIAM S. SHAW, Plaintiff, v. C.J. SCERBO, JAMES IVERSON, JIM FITZGERALD, and GILBERTO FREITAS, Defendants.
CourtU.S. District Court — Middle District of Florida
OPINION AND ORDER

JOHN E. STEELE SENIOR UNITED STATES DISTRICT JUDGE

This matter comes before the Court on review of defendants C.J Scerbo, James Iversen, Jim Fitzgerald, and Gilberto Freitas'[1] Motion to Dismiss Plaintiff's Amended Complaint (Doc. #19) filed on May 3, 2022. Defendants filed a Supplement to Motion to Dismiss (Doc. #20) on May 4, 2022. Plaintiff did not file a response, and the time to do so has passed. For the reasons set forth below, the motion is granted without prejudice.

I.

This is a pro se action brought by plaintiff William S. Shaw (Plaintiff) against several security officers that arose from Plaintiff's attempt to leave Healthpark Medical Center against medical advice. On March 25, 2022, the Court issued an Opinion and Order dismissing Plaintiff's original Complaint without prejudice as a shotgun pleading, except claims pertaining to Florida State criminal violations under § 784.011, § 784.03, § 787.02, and § 784.021 and HIPAA violations pursuant to 42 U.S.C. § 1320d-6, which were dismissed with prejudice for failure to state a claim. (Doc. #9, pp. 7, 11-12.) The Court explained why the initial Complaint was a shotgun pleading and directed Plaintiff to additional resources for filing a complaint. (Id., pp. 7-8.) Plaintiff was granted leave to amend his Complaint so he could fix the deficiencies. (Id., p. 12.) On April 12, 2022, Plaintiff filed an Amended Complaint. (Doc. #14.)

Like the original complaint, the Amended Complaint alleges that he was a patient at Healthpark Medical Center (Healthpark) in Lee County, Florida. (Doc. #14, p. 1.) Defendants C.J Scerbo, James Iversen, Jim Fitzgerald, and Gilberto Freitas (collectively Defendants) worked at Healthpark as security officers throughout the duration of Plaintiff's medical care. (Id.) Plaintiff alleges that the Defendants approached him in an aggressive manner, illegally detained him at Healthpark, sought to remove an internal medical device from his body, placed his life in danger, and unlawfully accessed and released his medical information to the public. (Id., ¶¶ 1-9.) Plaintiff alleges that he suffered physical injuries and emotional stress and trauma as a result of the Defendants' actions. (Id., p. 2.)

Read liberally, the Amended Complaint alleges the following claims[2] against Defendants: (1) assault and battery; (2) unlawful demand to remove an internal medical device; (3) false imprisonment and false arrest; (4) negligence and breach of contract; and (5) unlawful release of medical information. (Doc. #14, ¶¶ 1-9.) Plaintiff seeks a total of $9 Million in damages. (Id., p. 2.)

Defendants urge the Court to dismiss Plaintiff's Amended

Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) because it is a “classic rambling shotgun pleading” and fails to state a claim upon which relief may be granted. (Doc. #19, pp. 26.) The Court is persuaded by the second argument.

II.

Under Federal Rule of Civil Procedure 8(a)(2), a Complaint must 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 obligation “requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citation omitted). To survive dismissal, the factual allegations must be “plausible” and “must be enough to raise a right to relief above the speculative level.” Id. at 555. See also, Edwards v. Prime Inc., 602 F.3d 1276, 1291 (11th Cir. 2010). This requires “more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citations omitted).

A pro se amended complaint is to be liberally construed and “held to less stringent standards than complaints drafted by lawyers.” Stephens v. DeGiovanni, 852 F.3d 1298, 1318 n.16 (11th Cir. 2017). Liberal construction means that a federal court sometimes must "look beyond the labels used in a pro se party's complaint and focus on the content and substance of the allegations" to determine if a cognizable remedy is available. Torres v. Miami-Dade Cty., Fla., 734 Fed.Appx. 688, 691 (11th Cir. 2018). Yet, there are limits to the court's flexibility as it does not have the “license to serve as de facto counsel for a party, or to rewrite an otherwise deficient pleading in order to sustain an action.” Campbell v. Air Jamaica Ltd., 760 F.3d 1165, 1168-69 (11th Cir. 2014). A pro se pleading “must suggest (even if inartfully) that there is at least some factual support for a claim; it is not enough just to invoke a legal theory devoid of any factual basis.” Jones v. Fla. Parole Comm'n, 787 F.3d 1105, 1107 (11th Cir. 2015).

III.

The Court will address the merits of Defendants' motion to dismiss below.

A. Shotgun Pleading

Defendants assert that the Amended Complaint remains a shotgun complaint which should be dismissed. A shotgun pleading is "replete with conclusory, vague, and immaterial facts not obviously connected to any particular cause of action. The unifying characteristic of . . . shotgun pleadings is that they fail to one degree or another, and in one way or another, to give the defendants adequate notice of the claims against them and the grounds upon which each claim rests." Weiland v. Palm Beach Cty. Sheriff's Office, 792 F.3d 1313, 1322 (11th Cir. 2015).

Plaintiff appears to have attempted to correct at least some of the deficiencies in the original Complaint. The Amended Complaint sets forth eight paragraphs which attempt to set forth claims. While the Amended Complaint is not a “shotgun” pleading, its allegations are vague and insufficient, generally asserting legal conclusions rather than facts. As discussed below, this violates Rule 8 and is insufficient to enable Defendants to properly frame a response. See LaCroix v. W. Dist. of Ky., 627 Fed.Appx. 816, 818 (11th Cir. 2015).

B. Failure to State A Claim

Defendants argue that Plaintiff's Amended Complaint should also be dismissed because it fails to sufficiently allege recognized causes of action or the necessary elements of each cause of action for which relief may be granted. (Doc. #19, p. 4.) The Court agrees.

Although the Court must accept all factual allegations in a complaint as true and take them in the light most favorable to plaintiff when considering a Rule 12(b)(6) motion to dismiss, Erickson v. Pardus, 551 U.S. 89 (2007), [l]egal conclusions without adequate factual support are entitled to no assumption of truth.” Mamani v. Berzain, 654 F.3d 1148, 1153 (11th Cir. 2011) (citations omitted). “Factual allegations that are merely consistent with a defendant's liability fall short of being facially plausible.” Chaparro v. Carnival Corp., 693 F.3d 1333, 1337 (11th Cir. 2012) (citations omitted).

(1) Assault and Battery

The Amended Complaint alleges that Plaintiff was assaulted when security approached him in an aggressive manner “stepping 1 foot in my face terriffiyig [sic] me a [sic] as I believed they were going to harm me.” (Doc. #14, ¶ 1.) Plaintiff also alleges that he was repeatedly and constantly assaulted and battered, but he provides no factual support. (Id., ¶¶ 2, 4.)

“Under Florida law, assault and battery are two distinct torts.” Bercini v. City of Orlando, No. 6:15-cv-1921-Orl-41TBS, 2016 U.S. Dist. LEXIS 195772, at *22 (M.D. Fla. Sep. 30, 2016) [A]n assault is defined as ‘an intentional, unlawful threat by word or act to do violence to the person of another, coupled with an apparent ability to do so, and doing some act which creates a well-founded fear in such other person that such violence is imminent.'" Watkins v. Johnson, 853 Fed.Appx. 455, 461 (11th Cir. 2021) (quoting Fla. Stats. § 784.011(1)). "[A] battery consists of the intentional infliction of a harmful or offensive contact upon the person of another." Sullivan v. Atl. Fed. Sav. & Loan Ass'n, 454 So.2d 52, 54 (Fla. 4th DCA 1984).

Taking the factual allegations in the Amended Complaint as true, Plaintiff has failed to plausibly allege a claim for assault or battery. The Amended Complaint does not allege that any of the Defendants made an intentional unlawful threat or intentionally inflicted harmful or offensive contact upon Plaintiff. Stating that all defendants stepped within a foot in an aggressive manner is not sufficient to state a plausible claim. Furthermore, Plaintiff only provides legal conclusions with no factual allegations from which the Court could infer that Plaintiff was assaulted or battered by Defendants. See Mamani, 654 F.3d 1148, 1153. Defendants are entitled to dismissal of Plaintiff's claims for assault and battery under Rule 12(b)(6).

(2) Unlawful Demand To Remove An Internal Medical Device

The Amended Complaint alleges that the security officers made multiple unlawful demands upon Plaintiff to allow them to remove an internal medical device from his body without any doctor ordering them to do so. (Doc. #14, ¶ 3.) Defendants respond that this claim should be dismissed because these allegations do not state a recognized cause of action upon which relief may be granted, nor do Defendants have the medical training or ability to remove medical devices. (Doc. #19, p. 4.)

Even liberally construing these allegations, a claim that the Defendants sought to be allowed to remove a medical device from Plaintiff's body fails to state a plausible claim. See Iqbal, 556 U.S. at 678-79. Defendants' authority or training to remove an internal medical device has no particular relevance. Thus, Plaintiff has failed...

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