Wilke v. Tallahassee Mem'l Health Care

• Decision Date: 11 September 2018
• Docket Number: CASE NO. 2:17-cv-399-ECM-SRW
• Court: U.S. District Court — Middle District of Alabama
• Parties: LARRY AYERS WILKE, Plaintiff, v. TALLAHASSEE MEMORIAL HEALTH CARE, et al., Defendants.

LARRY AYERS WILKE, Plaintiff, v. TALLAHASSEE MEMORIAL HEALTH CARE, et al., Defendants.

CASE NO. 2:17-cv-399-ECM-SRW

DISTRICT COURT OF THE UNITED STATES FOR THE MIDDLE DISTRICT OF ALABAMA NORTHERN DIVISION

September 11, 2018

ORDER and RECOMMENDATION OF THE MAGISTRATE JUDGE¹

Plaintiff Larry Wilke, proceeding pro se,² initiated this lawsuit on June 21, 2017 and, in compliance with a sealed order, filed an amended complaint on January 2, 2018. See Doc. 13. The amended complaint is the operative pleading,³ and plaintiff asserts therein various claims against19 named defendants - Tallahassee Memorial Healthcare d/b/a Medicus Select, LLC; Dr. Frank E. Gredler; Dr. Carlos Beltran; Dr. Prasanti Tatini, Dr. Edith Hidalgo; Dr. Sireesha Chimata; Dr. Stephen M. Cremin; Dr. Shayla Gray; Trisha Mauney, R.N.; Felicia Rocket, R.N.; Christine Larsen-Chieffe, R.N.; Carl Mahler; Dan Hendricksen; The Incorporated City of Vero Beach, Florida; Officer Chris Cox of the Vero Beach Police Department; Officer Brian Kerensky of the Vero Beach Police Department; Chief David Currey of the Vero Beach Police Department; Indian River Memorial Hospital, Inc.; and Dr. Kristen Hicks. See id.

All defendants have filed motions to dismiss this cause pursuant to Federal Rule of Civil Procedure 12 for, inter alia, lack of personal jurisdiction, improper venue, and failure to state a claim upon which relief can be granted. See Docs. 37, 41, 54, 63, and 93.⁴ Pursuant to the court's order, the plaintiff filed response briefs in opposition to the motions to dismiss. See Doc. 59 (response to Doc. 37); Doc. 94 (response to Doc. 37); Doc. 95 (Response to Doc. 54); Doc. 96 (Response to Doc. 41 and Doc. 93); Doc. 97 (Response to Doc. 63).

Upon consideration of the motions to dismiss due to improper venue, see Docs. 54 and 63, on February 27, 2018, the court sua sponte ordered the parties to show cause why this matter should not be transferred to the United States District Court for the Northern or Southern District of Florida pursuant to 28 U.S.C. § 1406(a) or, in the alternative, under 28 U.S.C. § 1404(a). See Doc. 67. Section 1406(a) provides that a "district court of a district in which is filed a case laying venue in the wrong division or district shall dismiss, or if it be in the interest of justice, transfersuch case to any district or division in which it could have been brought." Section 1404(a) provides that, "[f]or the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought or to any district or division to which all parties have consented."

Plaintiff did not respond to the court's show cause order regarding the propriety of transfer of venue. In his opposition to the motions to dismiss due to improper venue, plaintiff states only, concerning venue, that, "[t]he venue is proper as the Judge may select." Doc. 95 at 2; Doc. 97 at 2. Defendants Kristen Hicks, Indian River Memorial Hospital, Inc., Chris Cox, David Currey, Brian Kerensky, The Incorporated City of Vero Beach, Florida, and the Tallahassee Defendants object to transfer of venue and request a ruling on their motions to dismiss. See Doc. 77; Doc. 78; Doc. 79. Thus, no party seeks transfer of venue, and the court reaches the merits of the motions to dismiss in the manner set out below. The court also addresses plaintiff's motion for a hearing, motion to consolidate this action with divorce proceedings in an Alabama state court between the plaintiff and his wife, and ex parte motion to file a second amended complaint ex parte and under seal. See Doc. 100; Doc. 102; Doc. 103.

Upon consideration, the court finds that the motions to dismiss for improper venue filed pursuant to Federal Rule of Civil Procedure 12(b)(3) by defendants Chris Cox, David Currey, Brian Kerensky, The Incorporated City of Vero Beach, Florida (collectively "the Vero Beach Defendants"), see Doc. 54, and Dr. Kristen Hicks, and Indian River Memorial Hospital, Inc., see Doc. 63, are due to be granted. Plaintiff's ex parte motion to file a second amended complaint ex parte and under seal is due to be denied. See Doc. 103. This matter is due to be dismissed without prejudice for improper venue. See Madara v. Hall, 916 F.2d 1510, 1514 n.1 (11th Cir. 1990) (noting, inter alia, that dismissal of claims for improper venue is without prejudice); Smarter EveryDay, LLC v. Nunez, 2017 WL 1247500, at *6 & n.6 (N.D. Ala. Apr. 5, 2017) (sua sponte dismissing without prejudice due to improper venue and lack of personal jurisdiction and finding transfer is inappropriate due to plaintiff's failure to identify an appropriate forum for the lawsuit). Also, all remaining motions are due to be denied.

BACKGROUND AND MATERIAL FACTS⁵

This lawsuit is the second federal action filed by the plaintiff alleging that, in 2014, he was wrongfully detained and committed in the State of Florida for psychiatric evaluation and treatment under Florida's Baker Act, §§ 394.451-.47892, Florida Statutes (2017).⁶ See Doc. 13 at 4-8. "The Baker Act is a means of providing individuals with emergency services and temporary detention for mental health evaluation and treatment when required either on a voluntary or an involuntary basis." Doc. 63 at 1.

In his amended complaint, plaintiff alleges that he suffered a panic attack. Doc. 13 at 6. Thereafter, on an unspecified date in January 2014⁷ in Vero Beach, Florida, defendants Officer Cox and Officer Krensky

assaulted the 5'-9", 165 lb., 70 year old plaintiff by manhandling and violently throwing him to the ground. Once on the ground, the Plaintiff was pinned down and double handcuffed resulting in severe abrasions to Plaintiff's forearm. The assault was initiated in an effort to quell the Plaintiff's desperate plea (yelling) for help in as much as the Plaintiff had implicated the Vero Beach Police Department in possible criminal behavior only 2 days prior in a tip to the F.B.I. in Ft. Pierce, Florida.

Doc. 13 at 8. While not expressly pled in the amended complaint, it appears from plaintiff's allegations that the police arrested the plaintiff and either transported or escorted him to Indian River Medical Center in Vero Beach.

According to the amended complaint, on January 31, 2014, an Emergency Room physician at Indian River Medical Center performed a "thorough examination" of the plaintiff and recommended that he be released "'to home'" care. Doc. 13 at 6. Based on allegations scattered throughout the amended complaint, the court infers that judicial proceedings were commenced under the Baker Act shortly thereafter for the purpose of committing the plaintiff to a hospital for psychiatric analysis and treatment. Plaintiff asserts that, following his arrest, and due to fraudulent reports and actions by numerous entities and individuals, on February 2 or February 3, 2014, a judge forcibly committed him against his will for 27 days to Tallahassee Memorial Hospital for mental evaluation and treatment. The plaintiff contends that the Baker Act commitment was the result of a conspiracy and fraud on the part of multiple defendants and non-parties. Plaintiff further asserts that he suffered "abuse ... in the form of physical assaults of forced injection and forced (intimidated by threat) ingestion of dangerous psychotropic drugs to include[] Zyprexa, Cogentin and Lithium." Doc. 13 at 7-8.

Plaintiff also alleges that defendant The City of Vero Beach, Florida, and its agents have hacked plaintiff's computer from May 21, 2015 "to the present." Doc. 13 at 3-4. The plaintiff avers that "[t]he purpose of the hacking is to provide a continuum of information to the criminal element enmeshed with the defendants. This stolen information is then used by the defendants to harass the Plaintiff. The computer fraud and its concomitant illegal activities are designed to thwart the Plaintiff's legal pursuit." Doc. 13 at 9.

The plaintiff also alleges that there is a wide-reaching criminal enterprise and conspiracy among an unnamed "criminal element," "corrupt drug alliances," the defendants, non-party law enforcement officials, and non-party The Florida League of Cities. Doc. 13 at 10. According to plaintiff, this criminal activity is related to widespread corruption and "large scale illegal drug activities [which] are rampant in the area surrounding Vero Beach and the Sebastian Inlet." Doc. 13 at 10. Plaintiff's amended complaint alleges that he is the target and victim of harassment and threats by this criminal alliance, including the defendants, because he is a whistleblower who is attempting to expose their nefarious and unlawful deeds. Plaintiff contends that his Baker Act commitments, the treatment and medications he received while committed, an assault by defendants Officer Cox and Officer Krensky, the hacking of his computer, and other incidents of harassment are the result of and punishment for his actions as a whistleblower.

Plaintiff seeks relief in the form of monetary damages in the amount of $100 million, reimbursement for costs associated with this litigation, and injunctive relief, to include "the complete removal from all repositories any and all records pertaining to the Plaintiff's Baker Act arrest." Doc. 13 at 12-15. He hopes that this lawsuit will have a "chilling effect" and will begin to "cure the insidious corruption and its cohort ... rampant drug infestation." Id. at 15.

SUBJECT MATTER JURISDICTION⁸

Before reaching the merits of the instant motions, the court must first assure itself of subject matter jurisdiction over this cause.⁹ A party seeking to invoke federal jurisdiction must make "a short and plain statement of the grounds for the court's jurisdiction." Fed. R. Civ. P. 8(a)(1). A plaintiff who files a lawsuit in federal court bears the burden of demonstrating the court's subject matter jurisdiction. See, e.g., Pretka v. Kolter City Plaza II, Inc., 608 F.3d 744, 765 (11th Cir. 2010) (quoting ...