McCrimmon v. Centurion of Florida, LLC

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

SARAH MCCRIMMON and CARON

DETTMANN, as Co-Administrators

of the Estate of Curtis

Dettmann,

Plaintiffs,

v. Case No. 3:20-cv-36-BJD-JRK

CENTURION OF FLORIDA, LLC,

et al.,

Defendants.

____________________________________

ORDER

I. Status & Background

Plaintiffs, co-administrators of Curtis Dettmann’s estate, bring this

action against thirty-six Defendants arising out of medical care Mr. Dettmann

received when he was an inmate of the Florida Department of Corrections

(FDOC). The Court struck Plaintiff’s initial complaint, finding it constituted

an impermissible shotgun pleading. See Order (Doc. 10). On February 3, 2020,

Plaintiffs filed an amended complaint (Doc. 12; Am. Compl.), asserting thirty-

nine causes of action. The Court entered a case management and scheduling

order on May 29, 2020. See Order (Doc. 48). Discovery is set to close on March

12, 2021. Id.

The following Defendants have filed answers: Jones (Doc. 25); Allen (Doc.

26); Hummel (Doc. 27); Whalen (Doc. 28); Reimers (Doc. 31); and R. Smith (Doc.

74). Before the Court are three motions to dismiss (Docs. 63, 64, 68), which

Plaintiffs oppose in a consolidated response (Doc. 72; Pl. Resp.).1

II. Motion to Dismiss Standard

“To survive a motion to dismiss, a complaint must contain sufficient

factual matter, accepted as true, to ‘state a claim to relief that is plausible on

its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); see also Lotierzo v.

Woman’s World Med. Ctr., Inc., 278 F.3d 1180, 1182 (11th Cir. 2002). “A claim

has facial plausibility when the plaintiff pleads factual content that allows the

court to draw the reasonable inference that the defendant is liable for the

misconduct alleged.” Iqbal, 556 U.S. at 678. A plaintiff should allege enough

facts “to raise a reasonable expectation that discovery will reveal evidence”

supporting the plaintiff’s claims. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556

(2007).

Though detailed factual allegations are not required, Federal Rule of

Civil Procedure 8(a) demands “more than an unadorned, the-defendant-

unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678. As such, a plaintiff

1 One Defendant has not responded to the complaint at all: Maurice

Radford.

2

may not rely on “[t]hreadbare recitals of the elements of a cause of action,

supported by mere conclusory statements.” Gill as Next Friend of K.C.R. v.

Judd, 941 F.3d 504, 511 (11th Cir. 2019) (quoting Iqbal, 556 U.S. at 678).

Rather, the well-pled allegations must nudge the claim “across the line from

conceivable to plausible.” Twombly, 550 U.S. at 570. In assessing the

sufficiency of a complaint, all reasonable inferences should be drawn in favor

of the plaintiff. See Iqbal, 556 U.S. at 678.

III. Complaint Allegations

Mr. Dettmann died on January 23, 2018, at the Reception and Medical

Center (RMC). See Am. Compl. ¶¶ 1, 2, 6. Mr. Dettmann was housed at RMC

because he had serious medical needs, including hidradenitis, a chronic skin

condition. Id. ¶ 22. On January 10, 2018, Mr. Dettmann had surgery at

Memorial Hospital Jacksonville to resolve an outbreak near his anus. Id. ¶ 23.

He returned to RMC two days later with various medications, including a

course of antibiotics, which RMC medical providers gave him. Id. ¶¶ 24, 25.

Plaintiffs allege that Mr. Dettmann’s health began to deteriorate on

January 17, 2018, five days after his release from the hospital. Id. ¶ 26. He

became nauseous and was vomiting. Additionally, Plaintiffs allege, he showed

signs of an active infection: his blood pressure, temperature, and white blood

cell counts were elevated, and his lymphocyte counts were low. Id. Mr.

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Dettmann complained to Dr. Gonzalez and Nurse Quintino that he was

nauseous and vomiting. Id. Dr. Gonzalez ordered intravenous Zofran to

address those symptoms. Id.

The following day, January 18, 2018, Mr. Dettmann was unable to eat.

Id. ¶ 27. He still had a temperature, and he reported abdominal pain and

diarrhea. Unspecified nurses noted that Mr. Dettmann appeared weak. Id.

According to Plaintiffs, Mr. Dettmann “consistently reported [his] symptoms

to Defendant Nurses, Dr. Gonzalez, and other staff in the infirmary,” and he

told Dr. Gonzalez the Zofran did not relieve his symptoms. Id. ¶¶ 27, 30. Mr.

Dettmann also spoke with his sister, Sarah McCrimmon, on January 18, 2018.

Id. ¶ 29. Crying, Mr. Dettmann begged Ms. McCrimmon to help him. He told

her that he had become incontinent and was placed in a diaper. Id.

On January 19, 2018, Mr. Dettmann again saw Dr. Gonzalez. Id. ¶ 30.

Dr. Gonzalez ordered no tests, but ordered that Mr. Dettmann continue

receiving Zofran and prescribed Protonix, Imodium, and a probiotic

supplement. Id. Mr. Dettmann begged to be sent to the hospital. Id. ¶ 31. “The

Nursing Defendants notified Dr. Gonzalez” of Mr. Dettmann’s requests. Id.

On January 20, 2018, two doctors checked on Mr. Dettmann: Dr.

Rodriguez and Dr. Pedroza. Id. ¶¶ 32, 34. Despite Mr. Dettmann’s continued

or worsening condition, the doctors did not evaluate him or perform any tests.

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Id. Dr. Pedroza noted Mr. Dettmann was dehydrated and ordered that he

“begin a full liquid diet and follow up with his primary care doctor.” Id. ¶ 34.

Dr. Rodriguez saw Mr. Dettmann again the following day, on January 21, 2018.

Id. ¶ 38. Again, Dr. Rodriguez did not evaluate Mr. Dettmann or perform any

tests. Id.

Mr. Dettmann’s condition became so extreme that he could not drink

water without vomiting, and he became dependent on a wheelchair because he

was too weak to walk. Id. ¶¶ 33, 35. “[H]e defecated on himself repeatedly

throughout January 21 and 22.” Id. ¶ 37. Mr. Dettmann’s incontinence was

reported to Nurse McCarter, “who did nothing in response.” Id. On January 21,

2018, Mr. Dettmann’s sister visited him at RMC. Id. ¶ 36. He was in a

wheelchair, wore a diaper, and “spent a significant portion of the visit

vomiting.” Id.

By January 22, 2018, Mr. Dettmann had lost nearly 20 pounds, which

Dr. Gonzalez noted. Id. ¶ 39. Even though Mr. Dettmann’s condition had not

improved, Dr. Gonzalez discharged him to general population. Id. He was

returned to K dorm via wheelchair on January 22, 2018. Id. ¶ 40. That same

day, Dr. Gonzalez consulted with RMC’s medical director, Dr. Sharma,

regarding Mr. Dettmann’s “unresolved symptoms.” Id. ¶ 41. The two agreed to

submit a non-emergent gastro consult. Id.

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At 3:40 a.m. on January 23, 2018, Mr. Dettmann told Nurse Morton he

thought he was close to death. Id. ¶ 42. Nurse Morton recorded the symptoms

Mr. Dettmann reported to her. Nurse Morton’s physical evaluation revealed

the following: low weight of 106 pounds;2 tender abdomen; and hypoactive

bowel sounds. Id. Nurse Morton completed a “non-urgent/routine request form

to mental health.” Id. She did not alert a physician. “Nurse Mahoney signed off

on Nurse Morton’s actions.” Id. A few hours later, Mr. Dettmann was found

unresponsive in his cell. Id. ¶ 43.

Plaintiff died from pseudomembranous colitis, caused by an infection

called Clostridium difficile (C. diff). Id. ¶¶ 29, 44. According to Plaintiffs, C.

diff infections commonly occur in patients who take antibiotics after surgery.

The infection can be detected with a stool test. Id. ¶ 29.

Although unclear precisely when but before Mr. Dettmann died, Ms.

McCrimmon sent an email to Centurion, the regional medical provider for the

FDOC. Id. ¶ 46. A Centurion representative responded, acknowledging receipt

of the email and informing Ms. McCrimmon her concerns were forwarded to

Defendant Roberts, an administrator working at RMC. Id. Defendant Roberts,

in turn, promised Ms. McCrimmon she would investigate Mr. Dettmann’s

2 This is a 28-pound decrease from eleven days earlier. See Am. Compl.

¶ 42.

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health status the next day. Id. Ms. McCrimmon also personally spoke with

Defendant Roberts after she visited Mr. Dettmann on January 21, 2018. Id. ¶

49. Plaintiffs allege, “Roberts refused to take further action to ensure that [Mr.

Dettmann] received proper treatment, and instead had Ms. McCrimmon

escorted out of RMC.” Id.3

In counts one through thirty-six, Plaintiffs assert each Defendant was

deliberately indifferent to Mr. Dettmann’s medical condition, in violation of the

Eighth Amendment. In count thirty-seven, Plaintiffs assert the actions of the

individual Centurion Defendants and other Defendants (doctors, nurses, and

administrators) constitute intentional infliction of emotional distress under

Florida law. In count thirty-eight, Plaintiffs assert Centurion should be held

vicariously liable for the actions of its employees under § 1983 and state law.

Finally, in count thirty-nine, Plaintiffs assert a wrongful death claim against

Centurion.

3 Ms. McCrimmon contacted countless other FDOC administrators as

well, including then-Secretary of the FDOC, Julie Jones; the Warden, Robert

Smith; the FDOC’s Regional Director, Erich Hummel; the Health Services

Director and Clinical Advisor of the FDOC Office of Health Services, Thomas

Reimers and Timothy Whalen; an employee of the Inspector General’s Office,

Maurice Radford; Centurion’s Regional Director, Tamara Taylor; and Dr.

Sharma. See Am. Compl. ¶¶ 47, 50-54. These allegations are not summarized

because most of these Defendants have answered the amended complaint.

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IV. Analysis & Conclusions

A. Centurion Defendants’ Motion

Centurion and the individual Defendants who worked for Centurion at

the relevant times (Centurion Defendants) jointly move to dismiss the claims

against them (Doc. 63; Centurion Motion).4 They argue Plaintiffs fail to state

plausible claims for deliberate indifference (against all Centurion Defendants),

respondeat superior (against Centurion), intentional infliction of emotional

distress (against the Centurion Doctors, Nurses, and P. Roberts), and wrongful

death (against Centurion).

i. Deliberate Indifference

Plaintiffs allege the Centurion Defendants were deliberately indifferent

to Mr. Dettmann’s serious medical needs. A claim for deliberate indifference to

a serious illness or injury is cognizable under § 1983. See Estelle v. Gamble,

429 U.S. 97, 104 (1976). To state a claim, a plaintiff first must allege he had a

4 Four doctors join the motion: Rakesh Sharma; Marinette Gonzalez

Morales; David E. Rodriguez; and Gerardo A. Pedroza-Sierra (collectively,

“Centurion Doctors”). Sixteen nurses join the motion: John R. Quintino; Luz

Cruz, Kimberly A. Nielson, Linda Roberts, Alex Renelus, Cayman Smith,

Kayla McCarter, Tanesha L. Adkins, Shenka Jackson, Nikki N. Richardson

(deceased); April A. Mason; Elizabeth Morton; Clarissa C. Moody; Tabatha L.

Mahoney; Michael J. Roth; and Ashley Harvey/Hawkins (collectively,

“Centurion Nurses”). Two Centurion administrators join the motion: Pricilla

L. Roberts and Tamara Taylor (together, “Centurion Administrators”). As

addressed later in this Order, Plaintiffs mis-identify some of the Centurion

Nurses in their complaint.

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serious medical need. Brown v. Johnson, 387 F.3d 1344, 1351 (11th Cir. 2004).

Next, the plaintiff must “allege that the prison official, at a minimum, acted

with a state of mind that constituted deliberate indifference.” Richardson v.

Johnson, 598 F.3d 734, 737 (11th Cir. 2010) (describing the three components

of deliberate indifference as “(1) subjective knowledge of a risk of serious harm;

(2) disregard of that risk; (3) by conduct that is more than mere negligence”).

“Where a prisoner has received … medical attention and the dispute is

over the adequacy of the treatment, federal courts are generally reluctant to

second guess medical judgments and to constitutionalize claims that sound in

tort law.” Hamm v. DeKalb Cty., 774 F.2d 1567, 1575 (11th Cir. 1985) (quoting

with alteration Westlake v. Lucas, 537 F.2d 857, 860 n.5 (1st Cir. 1981)). As

such, allegations of medical negligence are not cognizable under § 1983.

Estelle, 429 U.S. at 106.

However, the Eleventh Circuit has not held an Eighth Amendment claim

is never plausible when an inmate receives some medical care. On the contrary,

even when a prisoner receives some medical care, a plaintiff states a claim for

deliberate indifference if he alleges the care he received was “so cursory as to

amount to no treatment at all,” was grossly inadequate, or was guided by a

“decision to take an easier but less efficacious course of treatment.” McElligott

v. Foley, 182 F.3d 1248, 1255 (11th Cir. 1999). See also Harris v. Thigpen, 941

9

F.2d 1495, 1505 (11th Cir. 1991) (“Medical treatment violates the [E]ighth

[A]mendment only when it is ‘so grossly incompetent, inadequate, or excessive

as to shock the conscience or to be intolerable to fundamental fairness.’”).

The Eleventh Circuit has “repeatedly found that ‘an official acts with

deliberate indifference when he or she knows that an inmate is in serious need

of medical care, but he fails or refuses to obtain medical treatment for the

inmate.’” McElligott, 182 F.3d at 1255. “A core principle of Eighth Amendment

jurisprudence in the area of medical care is that prison officials with knowledge

of the need for care may not, by failing to provide care, delaying care, or

providing grossly inadequate care, cause a prisoner to needlessly suffer the

pain resulting from his or her illness.” Id. at 1257. Delaying treatment for non-

life-threatening injuries that cause pain, even if momentary, can give rise to a

cognizable constitutional claim. See, e.g., id. (citing cases).

As to the objective component of Plaintiffs’ deliberate indifference claims,

the Centurion Defendants do not dispute Mr. Dettmann had a serious medical

need. See Centurion Motion at 16. They argue Plaintiffs fail to state a plausible

claim for relief, however, because Plaintiffs do not to levy independent

allegations against some of the Centurion Nurses (Nielson, Adkins,

Richardson, Mason, Moody, Roth, Roberts, Smith, Hawkins, Renelus, Cruz,

and Jackson); Plaintiffs allege no facts to satisfy the subjective component of a

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deliberate indifference claim against the other Defendants; Plaintiffs do not

sufficiently allege Centurion maintained policies or practices that caused Mr.

Dettmann’s injuries; and the allegations as to individual Defendants do not

establish a causal connection between Defendants’ actions and Mr. Dettmann’s

injuries. Id. at 17-18. The individual Centurion Defendants also invoke

qualified immunity. Id. at 18.

The individual Centurion Defendants—the Centurion Doctors, Nurses,

and Administrators—were not employed by the FDOC at the relevant times.

Id. at 3. They were Centurion employees under contract to provide medical care

for FDOC inmates. Id. Accordingly, they may not invoke qualified immunity.

See, e.g., Richardson v. McKnight, 521 U.S. 399, 412 (1997) (holding private

prison guards “do not enjoy qualified immunity from suit in a § 1983 case”).

See also Hinson v. Edmond, 205 F.3d 1264, 1265 (11th Cir. 2000) (“[A] privately

employed prison physician[] is ineligible to advance the defense of qualified

immunity.”).

Accepting Plaintiffs’ allegations as true, after Mr. Dettmann was

released from the hospital to RMC, he developed a life-threatening infection

that medical providers should have detected but did not. Additionally, Mr.

Dettmann suffered in pain and humiliating circumstances for days, and his

condition steadily and obviously worsened until he died. Such allegations could

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be described as consistent with negligence, but they also could constitute

deliberate indifference.

The problem with Plaintiffs’ amended complaint, however, is that they

still do not explain what each of the Centurion Nurses did or did not do, with

two exceptions discussed below. With respect to the following fourteen

Centurion Nurses, Plaintiffs’ allegations are vague and fall closer to describing

conduct that constitutes negligence rather than deliberate indifference:

Quintino (count six); C.S./Smith (counts eight and fourteen); L.C./Cruz (count

nine); Nielson (count ten); L. Roberts (count twelve); Renelus/LPN A.R. (counts

thirteen and twenty); McCarter (count fifteen); Adkins (count seventeen);

Jackson (count nineteen); Richardson (count twenty-one); Mason (count

twenty-two); Moody (count twenty-four); Roth (count twenty-six); and Harvey

(count twenty-seven).5

5 Defendants clarify in their motion that Plaintiffs mis-identify the

following nurses: Nurse Smith, who is referenced as both “C.S.” and “C. Smith”

in the complaint; Nurse Cruz, who is referenced as “L.C.” in the complaint; and

Nurse Renelus, who is referenced as “LPN A.R.” in the complaint. See

Centurion Motion at 2 n.1. The last name “Renelus” does not appear in the

complaint, though it could be the name Plaintiffs have hand-written in the

caption, the list of parties, and in counts thirteen and thirty-seven. If that is

the case, Plaintiff have lodged two separate deliberate indifference counts

against this one Defendant, who is identified by illegible handwriting in count

thirteen and as “LPN A.R.” in count twenty. See Am. Compl. ¶¶ 98, 119.

Another Defendant, Nurse Smith, who is referenced as both “C.S.” and “C.

Smith” in the complaint, also has duplicative counts asserted against him or

12

As to these Defendants, Plaintiffs allege the following:

Each of these Nursing Defendants encountered and

attended to [Mr. Dettmann] in the RMC [one or more

times] between January 17 and January 23, 2018

during the time Mr. Dettmann was exhibiting the

clear and obvious symptoms of his serious medical

illness. As such, each of these Nursing Defendants saw

[Mr. Dettmann’s] symptoms, and recognized that he

was in dire need of medical care. Despite these

encounters, however, none of these Nursing

Defendants took steps or intervened to secure

appropriate medical treatment for [Mr. Dettmann],

including securing the simple testing for and

treatment of C. diff.

See, e.g., Am. Compl. ¶¶ 14, 83. As to Defendant Quintino, Plaintiffs further

allege, “Mr. Dettmann complained directly to nurse Quintino on January 17

that he was feeling nauseous and vomiting.” Id. ¶ 77. And Plaintiffs allege

Nurse McCarter, “[i]n addition to her encounters [with Mr. Dettmann],”

learned from unidentified “staff” that Mr. Dettmann became incontinent but

did nothing in response. Id. ¶¶ 37, 104. Plaintiffs do not say when Nurse

McCarter received such information, nor do Plaintiffs allege Nurse McCarter

personally evaluated or treated Mr. Dettmann.

Plaintiffs’ bare allegations that these fourteen Nursing Defendants

“encountered” Mr. Dettmann “one or more times” do not sufficiently

her. Overall, Plaintiffs identify eighteen Centurion Nurses in their complaint,

though it appears there are only sixteen.

13

demonstrate they had knowledge of Mr. Dettmann’s serious medical need or,

with such knowledge, were deliberately indifferent to Mr. Dettmann’s

condition. Other than as to Nurse Quintino, Plaintiffs do not explain the nature

of the “encounters” these Nursing Defendants had with Mr. Dettmann. Some

of them may have only made an entry in Mr. Dettmann’s medical record,

administered a medication, checked his temperature or vital signs, or changed

a bed pan. Or, they could have merely been present in the infirmary attending

to other patients.

Importantly, to the extent these Nursing Defendants did in fact

“encounter” Mr. Dettmann and could have observed his medical condition, they

did so when Mr. Dettmann was in the infirmary and under the care of RMC

doctors. As such, simply alleging they “encountered” Mr. Dettmann does

nothing to explain whether or how they each knew he needed better or more

care. And Plaintiffs do not allege these Nursing Defendants, even if they were

concerned about the level of care Mr. Dettmann was receiving, had the ability

to do anything about it other than to report Mr. Dettmann’s symptoms to the

doctors, which Plaintiffs allege some nurses did: “The Nursing Defendants

notified Dr. Gonzalez . . . of [Mr. Dettmann’s] concerns and request [to be sent

to the hospital].” Id. ¶ 31.

Any failure by these Nursing Defendants to properly communicate Mr.

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Dettmann’s condition to the doctors, which perhaps can be inferred from

Plaintiffs’ allegations, suggests negligence. Additionally, assuming these

Nursing Defendants were privy to Mr. Dettmann’s medical chart and should

have known or suspected the care he was receiving was inadequate, such a

failure amounts to negligence, not deliberate indifference. See Farmer v.

Brennan, 511 U.S. 825, 838 (1994) (“[A]n official’s failure to alleviate a

significant risk that he should have perceived but did not,

while no cause for commendation, cannot under our cases be condemned as the

infliction of punishment.”). It also is not enough for Plaintiffs to allege facts

showing that some Centurion Defendants knew Mr. Dettmann had a serious

medical need because “imputed or collective knowledge cannot serve as the

basis for a claim of deliberate indifference.” See Burnette v. Taylor, 533 F.3d

1325, 1331 (11th Cir. 2008).

Moreover, as Defendants point out, Plaintiffs do not mention these

Nursing Defendants at all in their general factual allegations, save for one

reference to Nurse Quintino and one reference to Nurse McCarter. These single

references do not permit the reasonable inference Nurses Quintino or

McCarter were deliberately indifferent to Mr. Dettmann’s condition. As to

Nurse Quintino, Plaintiffs allege Mr. Dettmann reported to Quintino that he

was nauseous on January 17, 2018, which Plaintiffs allege is the day Mr.

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Dettmann’s condition began to deteriorate. Mr. Dettmann also voiced his

symptoms to Dr. Gonzalez that same day and, in response, Dr. Gonzalez

ordered Zofran. Id. ¶ 26. Plaintiffs do not mention Nurse Quintino having

“encountered” Mr. Dettmann again. Accordingly, a fair reading of Plaintiffs’

allegations is that Nurse Quintino knew Mr. Dettmann was nauseous on one

day, January 17, which prompted the doctor to take some action to address

those complaints. While the Zofran Dr. Gonzalez ordered ultimately proved

ineffective and Mr. Dettmann’s symptoms persisted and worsened, Plaintiffs

do not allege Nurse Quintino had knowledge of such.

As to Nurse McCarter, aside from a vague allegation that she

“encountered” Mr. Dettmann, Plaintiffs allege, “Staff reported [Mr.

Dettmann’s] incontinence to Nurse McCarter, who did nothing in response.”

Id. ¶ 37. As with the other Nursing Defendants, Plaintiffs do not allege the

nature of the “encounters” Nurse McCarter had with Mr. Dettmann, nor do

they allege Nurse McCarter was responsible for Mr. Dettmann’s plan of care.

Even if Nurse McCarter “did nothing” in response to learning Mr. Dettmann

was incontinent, these allegations, standing alone, do not permit the

reasonable inference that Nurse McCarter knew doctors in charge of Mr.

Dettmann’s care were not adequately handling the situation.

As to the remaining Centurion Defendants, Plaintiffs’ allegations are

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more developed. Plaintiffs allege the Centurion Doctors, Nurses Morton and

Mahoney, and the Centurion Administrators either personally evaluated Mr.

Dettmann or learned of Mr. Dettmann’s severe, deteriorating condition and,

therefore, knew of his surgical history and medications, his symptoms, and

that the plan of treatment was proving ineffective. Plaintiffs allege the

following facts that permit the reasonable inference the Centurion Doctors,

Nurses Morton and Mahoney, and the Centurion Administrators knew of Mr.

Dettmann’s serious condition: Mr. Dettmann recently had surgery and was

taking antibiotics; he became unable to eat, drink, walk, or control his bowels;

his white blood cell count became elevated, as did his temperature and blood

pressure; his lymphocyte counts were low; medications prescribed to address

his symptoms did not prove effective; he reported abdominal pain; he begged

to be sent to the hospital; his sister contacted multiple Centurion and FDOC

employees about his condition; and he lost nearly twenty-eight pounds between

January 12, 2018, and January 23, 2018.

Additionally, Plaintiffs allege that in response to the knowledge of Mr.

Dettmann’s serious medical condition, the Centurion Doctors, Nurses Morton

and Mahoney, or the Centurion Administrators did the following: prescribed

and administered medications to address isolated symptoms instead of

attempting to diagnose the problem; continued medications that proved

17

ineffective; delayed necessary consultations and referrals; ignored Mr.

Dettmann’s and his sister’s pleas for help; failed to ensure Mr. Dettmann was

receiving proper care; ordered Mr. Dettmann to be placed on a liquid diet

despite the fact Mr. Dettmann could not keep anything down; told Mr.

Dettmann to follow up with his “primary care provider”;6 ordered or permitted

Mr. Dettmann to be returned to the general population despite his obvious

worsening condition, including an inability to eat or drink, hold his bowels, or

walk; and, on the day Mr. Dettmann died, referred him to mental health

instead of immediately notifying a physician even though Mr. Dettmann said

he thought he was about to die and a physical evaluation appeared consistent

with the symptoms he reported. Accepted as true, these allegations nudge the

claim closer to deliberate indifference, as a failure to provide constitutionally

adequate care, rather than medical malpractice, as a negligent failure to

diagnose or treat a condition.

The facts Plaintiffs allege against the Centurion Doctors, Nurses Morton

and Mahoney, and the Centurion Administrators are very similar to those the

Eleventh Circuit held in McElligott demonstrated a genuine issue of material

fact whether the defendants acted with deliberate indifference. See 182 F.3d

at 1257-58. In McElligott, the appellate court reversed the district court’s entry

6 It is unclear who Mr. Dettmann’s “primary care provider” was.

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of summary judgment in favor of two medical providers who knew the

plaintiff’s medical condition was worsening but “still did nothing to treat [his]

deteriorating state” or diagnose the plaintiff’s condition other than to prescribe

medications that were ineffective. Id. at 1287, 1259. See also Estrada v.

Stewart, 703 F. App’x 755, 760 (11th Cir. 2017) (holding the plaintiff-prisoner

stated a plausible Eighth Amendment claim against medical providers and a

prison administrator who knew the extent of the plaintiff’s pain, “knew that

the course of treatment was largely ineffective,” yet took no action to improve

the plaintiff’s condition).

Plaintiffs allege facts that, if true, permit the reasonable inference the

Centurion Doctors, Nurses Morton and Mahoney, and the Centurion

Administrators, who either directly evaluated or spoke with Mr. Dettmann,

monitored or recorded his condition as it deteriorated over days, or otherwise

learned of the severity of his condition, ignored Mr. Dettmann’s serious medical

needs by conduct that amounted to more than mere negligence. While the facts

ultimately may show that some of these Defendants’ actions constitute

negligence, such an inquiry is better addressed on summary judgment.

Plaintiffs also assert Centurion was deliberately indifferent to Mr.

Dettmann’s serious medical needs by “maintain[ing] policies and practices

pursuant to which prisoners . . . with serious medical needs were routinely

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denied medical care,” which were the proximate cause of Mr. Dettmann’s

injuries. See Am. Compl. ¶¶ 57, 58. Centurion argues Plaintiff’s allegations are

merely conclusory, “devoid of any factual development.” See Centurion Motion

at 7-8. The Court cannot agree.

Plaintiffs go beyond reciting boilerplate language. They identify seven

policies or practices Centurion maintained in treating inmates at FDOC

institutions: ignoring obvious symptoms of serious medical conditions; refusing

to order necessary diagnostic tests or creating a sensible treatment plan for

patients; prioritizing profits over care; failing to ensure a continuity of care for

patients; failing to ensure adequate staffing; refusing to provide proper

treatment for difficult patients; and refusing to send patients to outside

facilities. See Am. Compl. ¶ 59.

Accepting Plaintiffs’ allegations as true, it appears something went

horribly wrong with Mr. Dettmann’s treatment. Given multiple doctors and

medical staff evaluated him and failed to diagnose the C. diff infection, a

reasonable inference to be drawn from the allegations is that a policy or

practice of Centurion’s played a role in the level of care Mr. Dettmann received.

Contrary to Centurion’s suggestion in its motion, Plaintiffs do not have to

“establish” a policy or practice in their complaint. See Centurion Motion at 8.

They merely must allege facts that permit the reasonable inference Centurion

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was the moving force behind a constitutional violation. This, they have done.

See Hoefling v. City of Miami, 811 F.3d 1271, 1281 (11th Cir. 2016) (holding

the plaintiff alleged enough facts to “permit ‘the reasonable inference that [the

municipality] [was] liable for the misconduct alleged’” (quoting Iqbal, 556 U.S.

at 678)).

Accordingly, count one against Centurion survives dismissal, as do the

following counts against individual Centurion Defendants: count two (Dr.

Sharma); count three (Dr. Gonzalez); count four (Dr. Rodriguez); count five (Dr.

Pedroza); count twenty-three (Nurse Morton); count twenty-five (Nurse

Mahoney); count twenty-eight (Priscilla Roberts); and county twenty-nine

(Tamara Taylor). The deliberate indifference counts against the other fourteen

individual Centurion Nurses are due to be dismissed.

ii. Intentional Infliction of Emotional Distress

In count thirty-seven, Plaintiffs allege the individual Centurion

Defendants’ conduct was extreme and outrageous, “undertaken with intent or

knowledge that there was a high probability that the conduct would inflict

severe emotional distress and with reckless disregard of that probability.” See

Am. Compl. ¶¶ 170, 172.7 They further allege Defendants’ conduct “was

7 Plaintiffs assert this claim against the Centurion Doctors, Centurion

Nurses, and P. Roberts, along with other nurses whose motions are addressed

21

undertaken intentionally, with malice, and/or reckless indifference to Mr.

Dettmann’s rights,” and caused Mr. Dettmann to suffer injuries and emotional

distress before he died. Id. ¶¶ 173-74.

To state a claim for intentional infliction of emotional distress, a plaintiff

must allege “(1) the wrongdoer’s conduct was intentional or reckless; (2) the

conduct was outrageous; (3) the conduct caused emotional distress; and (4) the

emotional distress was severe.” Williams v. Worldwide Flight SVCS., Inc., 877

So. 2d 869, 870 (Fla. 3d DCA 2004). Florida has adopted the Restatement

(Second) of Torts, which defines “extreme and outrageous conduct” as that

which is “so outrageous in character, and so extreme in degree, as to go beyond

all possible bounds of decency, and to be regarded as atrocious, and utterly

intolerable in a civilized community.” Metro. Life Ins. Co. v. McCarson, 467 So.

2d 277, 278-79 (Fla. 1985) (quoting Restatement (Second) of Torts § 46 cmt. d

(1965)). Merely unkind words or insults do not constitute “outrageous” conduct.

See Restatement (Second) of Torts § 46 cmt. d (2020 update). However, when

the actor is in a position of authority over the victim or has the power to affect

the victim’s interests, the conduct may be deemed outrageous. Id. cmt. e.

“Whether the conduct is outrageous enough to rise to the level required

later in this Order. Plaintiffs do not name the other Centurion administrator,

T. Taylor, in this count.

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by the tort is a question of law; but where significant facts are disputed, or

where differing inferences could reasonably be derived from undisputed facts,

the question of outrageousness is for the jury to decide.” Jones v. Jenne, No.

07-60839-CIV, 2008 WL 11402008, at *7 (S.D. Fla. Mar. 31, 2008) (citing Vance

v. S. Bell Tel., 983 F.2d 1573 (11th Cir. 1993)). See also Restatement (Second)

of Torts § 46 cmt. h (2020 update).

At this juncture, Plaintiffs do enough to state a plausible claim for relief

against the Centurion Doctors, Nurses Morton and Mahoney, and P. Roberts.

Accepting Plaintiffs’ allegations as true, these Defendants knew Mr. Dettmann

was suffering so much that he begged to be sent to the hospital and told Nurse

Morton he thought he was going to die, yet they did nothing to investigate or

address the cause of Mr. Dettmann’s condition. These Defendants also knew

Mr. Dettmann’s weight markedly decreased and he was unable to walk because

he could no longer eat or drink, and he was forced to wear a diaper, which he

wore while visiting with this sister. Additionally, Mr. Dettmann was at the

mercy of prison officials to ensure he had appropriate medical care, and he

expressed that he believed he was going to die while in their care.

Not only did Mr. Dettmann suffer physically and emotionally during the

time he was in the care of RMC medical staff, his sister observed his suffering.

She visited with Mr. Dettmann in a condition that was obviously distressing

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to both Mr. Dettmann and herself, and she spoke with him over the phone days

before he died, at which time he was crying and begging her for help. Mr.

Dettmann’s condition was so severe that Ms. McCrimmon contacted numerous

FDOC and Centurion officials seeking help for her brother. At this stage of the

proceedings, the Court cannot say these facts, if true, do not state a plausible

claim for intentional infliction of emotional distress under Florida law. See,

e.g., Liberty Mut. Ins. Co. v. Steadman, 968 So. 2d 592, 596 (Fla. Dist. Ct. App.

2007) (holding the plaintiff, an insured, stated an “outrage” claim against her

insurance company for unjustifiably delaying approval of a lung transplant,

finding significant the “unequal position of the parties” and the plaintiff’s

allegation that the insurance company was waiting for her to die so the

“problem would go away”); Haberski v. Bufano, 728 F. App’x 903, 909 (11th

Cir. 2018) (affirming the district court’s denial of statutory immunity for a

police officer who used “constitutionally unreasonable force” against a female

suspect, continuing to grip her arm even after hearing it pop when it broke,

causing the suspect to scream out in pain and beg to be released).

In sum, Plaintiffs state a plausible claim for intentional infliction of

emotional distress against the following individual Centurion Defendants: the

Centurion Doctors, Nurses Morton and Mahoney, and P. Roberts. The claim

fails as to all other individual Centurion Defendants named in this count

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because the Plaintiffs do not sufficiently explain what those Defendants did or

how their conduct caused Mr. Dettmann to suffer emotional distress.

iii. Supervisory Liability

Centurion cannot be held liable under § 1983 solely for the actions of its

employees, as alleged in count thirty-eight. In their response, Plaintiffs

acknowledge as much but note they assert the claim to preserve it given other

circuit courts have criticized the approach taken by the Eleventh Circuit. See

Pl. Resp. at 26 n.5. This Court is obliged to follow binding Eleventh Circuit

precedent, which makes clear that “supervisory officials are not liable under §

1983 for the unconstitutional acts of their subordinates on the basis of

respondeat superior or vicarious liability.” Cottone v. Jenne, 326 F.3d 1352,

1360 (11th Cir. 2003) (internal quotation marks and citation omitted),

abrogated in part on other grounds by Randall v. Scott, 610 F.3d 701 (11th Cir.

2010). As such, Centurion cannot be held liable for its employees’ alleged

deliberate indifference to Mr. Dettmann’s serious medical needs.

Plaintiffs also seek to hold Centurion liable for the actions or omissions

of its employees under state law. See Am. Compl. ¶ 177; Pl. Resp. at 26-27.

Under Florida’s sovereign immunity statute, the state and its agencies or

subdivisions may be liable for an intentional act of an employee unless the

employee “acted in bad faith or with malicious purpose or in a manner

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exhibiting wanton and willful disregard of human rights, safety, or property,”

in which case the individual employee may be held liable. Fla. Stat. §

768.29(9)(a). When an employee of the state or any of its subdivisions causes

an injury during the scope of that person’s employment, the injured plaintiff’s

“exclusive remedy” is “by action against the governmental entity” absent

allegations of bad faith or malicious purpose. Id.

In count thirty-eight against Centurion, Plaintiffs allege the individual

Centurion Defendants were acting “within the scope of their employment.” See

Am. Compl. ¶ 176. Plaintiffs do not allege the individual Centurion Defendants

acted with bad faith or malicious purpose. See Am. Compl. ¶ 175-177. However,

the only state law claim Plaintiffs allege against the individual Centurion

Defendants is one for intentional infliction of emotional distress, which carries

an element of “intent.” Indeed, Plaintiffs allege the individual Centurion

Defendants’ actions “were undertaken intentionally, with malice, and/or with

reckless indifference to Mr. Dettmann’s rights.”8 Id. ¶ 173.

As Plaintiffs acknowledge in their response, if they succeed on their state

law claim for intentional infliction of emotional distress against the individual

Centurion Defendants (count thirty-seven), Centurion cannot be held

8 In light of these allegations, the individual Centurion Defendants

against whom Plaintiffs state a plausible claim for intentional infliction of

emotional distress are subject to suit under Florida’s sovereign immunity law.

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vicariously liable for their conduct under Florida’s sovereign immunity statute.

See Pl. Resp. at 31-32. Even though the Federal Rules permit parties to plead

alternative, inconsistent claims, Plaintiffs do not assert an alternative theory

of liability under state law against the individual Centurion Defendants. For

instance, Plaintiffs do not allege a state law negligence claim against the

individual Centurion Defendants. See generally Am. Compl. Accordingly,

Plaintiffs’ respondeat superior count (thirty-eight) is due to be dismissed in its

entirety.

iv. Wrongful Death

Plaintiffs also assert a claim for wrongful death against Centurion (count

thirty-nine). Id. ¶¶ 179-83. Plaintiffs allege Centurion failed to provide

adequate medical care for Mr. Dettmann, which proximately caused Mr.

Dettmann’s death. Id. ¶¶ 180, 182. Centurion moves to dismiss this count on

the ground that Plaintiffs did not comply with the presuit notice requirements

under Florida Statutes. See Centurion Motion at 11. Specifically, Centurion

explains, Plaintiffs served their presuit notice contemporaneously with their

complaint, instead of waiting the requisite ninety-day period before

commencing the action. Id. at 12.

Plaintiffs concede to this sequence of events. See Pl. Resp. at 28.

However, they argue the presuit notice defect has been cured because more

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than ninety days have passed since they filed their original complaint, and

they provided notice of their intent to sue before the statute of limitations ran.

Id. (citing Groover v. Polk Cty. Bd. of Cty. Commissioners, 460 F. Supp. 3d

1242, 1257 (M.D. Fla. 2020)).

Plaintiffs served a notice of suit on January 16, 2020 (Doc. 63-1), the day

they filed their original complaint (Doc. 1). Plaintiffs did not wait ninety days

after serving the notice of suit before filing the complaint. Thus, their

complaint was subject to dismissal with leave to amend. However, that ninety-

day-period has now passed, meaning the defect has been cured. See Groover,

460 F. Supp. 3d at 1257. See also Hosp. Corp. of Am. v. Lindberg, 571 So. 2d

446, 449 (Fla. 1990) (holding that filing a presuit notice at the same time as

the complaint is not fatal if the notice is filed within the limitations period).

For these reasons, count thirty-nine is not subject to dismissal at this stage.

Centurion also contends sovereign immunity bars the wrongful death

claim against it. See Centurion Motion at 13-14. This contention is incorrect.

Plaintiffs do not allege in this count that the individual Centurion Defendants

engaged in bad faith or with malice. Accordingly, Centurion can be held to

account for their negligent conduct under Florida’s sovereign immunity

statute, as discussed previously in this Order. To the extent allegations of

negligence are inconsistent with allegations of intentional conduct,

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inconsistent claims may proceed. See Fed. R. Civ. P. 8(d)(3).

B. Remaining Motions

In separate motions, Defendant Cooper (Doc. 64; Cooper Motion) and

Defendants Brown, Purvis, and Swanson (Doc. 68; Brown Motion) move to

dismiss the counts lodged against them—deliberate indifference (counts seven,

eleven, sixteen, and eighteen) and intentional infliction of emotional distress

(count thirty-seven)—for Plaintiffs’ failure to state a plausible claim. In

addition, Defendant Cooper invokes qualified immunity, see Cooper Motion at

8,9 and Defendants Brown, Purvis, and Swanson argue the state-law claim is

barred by Florida’s sovereign immunity statute, and Plaintiff did not comply

with presuit notice requirements, see Brown Motion at 7, 8.

As with the Centurion Nurses, Plaintiffs allege Defendants Cooper,

Brown, Purvis, and Swanson “encountered and attended to [Mr. Dettmann] in

9 These Defendants were nurses as well. Defendant Cooper clarifies in

her motion that she was a nurse employed by CMS Professional Staffing and

assigned to RMC. See Cooper Motion at 2. Because Defendant Cooper was

employed by a private company not the FDOC, she may not invoke qualified

immunity. See Hinson, 205 F.3d at 1265. It is unclear whether Defendants

Brown, Purvis, and Swanson were employed by Centurion. Plaintiffs allege

they were, see Am. Compl. ¶ 14, and they do not dispute those allegations in

their motion. See Brown Motion at 7. However, in Centurion’s motion, counsel

states, “Defendants L. Swanson, L. Brown, B. Purvis, and S. Cooper . . . are not

Centurion Providers.” See Centurion Motion at 3. Regardless, because

Defendants Brown, Purvis, and Swanson do not invoke qualified immunity,

their employer is not material.

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the RMC between January 17 and January 23, 2018,” observed Mr.

Dettmann’s condition and symptoms, yet took no steps “to secure appropriate

medical treatment for [him].” See Am. Compl. ¶ 14. Plaintiffs do not explain

the nature of the encounters these Defendants had with Mr. Dettmann, nor do

Plaintiffs mention these Defendants in the general factual allegations.

For the same reasons articulated previously regarding the fourteen

Centurion Nurses, the Court finds Plaintiffs fail to state a plausible deliberate

indifference claim against Defendants Cooper, Brown, Purvis, and Swanson.

Similarly, Plaintiffs fail to allege facts that demonstrate Defendants’ conduct

was “outrageous.” Indeed, Plaintiffs do not describe what actions the individual

Defendants took other than to have “encountered” Mr. Dettmann while he was

in the infirmary at RMC. As such, the state-law claim fails as well.10

Accordingly, it is now

ORDERED:

1. The Centurion Defendants’ Motion to Dismiss (Doc. 63) is

GRANTED in part and DENIED in part. The motion is GRANTED to the

extent count thirty-eight (Respondeat Superior) against Centurion is

dismissed, and the following Centurion Nurses are dismissed for Plaintiffs’

10 Given the Court finds Plaintiffs fail to state a plausible claim for relief

against Defendants Brown, Purvis, and Swanson, their remaining arguments

are moot.

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failure to state a plausible claim for relief against them for deliberate

indifference or intentional infliction of emotional distress: Quintino;

C.S./Smith; L.C./Cruz; Nielson; L. Roberts; Renelus/LPN A.R.; McCarter;

Adkins; Jackson; Richardson; Mason; Moody; Roth; and Harvey. The motion is

DENIED to the extent the following claims proceed: deliberate indifference

against Centurion, the Centurion Doctors (Sharma, Gonzalez, Rodriguez, and

Pedroza), Nurses Morton and Mahoney, and the Centurion Administrators (P.

Roberts and T. Taylor); intentional infliction of emotional distress against the

Centurion Doctors (Sharma, Gonzalez, Rodriguez, and Pedroza), Nurses

Morton and Mahoney, and P. Roberts; and wrongful death against Centurion.

2. Defendant Cooper’s Motion to Dismiss (Doc. 64) is GRANTED.

Defendant Cooper is dismissed from this action.

3. Defendants Brown, Purvis, and Swanson’s Motion to Dismiss (Doc.

68) is GRANTED. Defendants Brown, Purvis, and Swanson are dismissed

from this action.

4. Defendants Centurion, Sharma, Gonzalez, Rodriguez, Pedroza,

Morton, Mahoney, P. Roberts, and Taylor must answer the amended complaint

within twenty days of the date of this Order.

5. By March 8, 2021, Plaintiffs must notify the Court whether they

intend to proceed against Defendant Radford, either by filing a notice of

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voluntary dismissal or a motion for entry of Clerk’s default.

DONE AND ORDERED at Jacksonville, Florida, this 8th day of

February 2021.

4 ¢ Do

=f J. DAVIS

United States District Judge

Jax-6

C:

Counsel of Record

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