# Moss v. Inch

> District Court, M.D. Florida · May 26, 2023

URL: https://www.frixlaw.com/law-library/cases/10112986

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** May 26, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10112986

## How later opinions describe it (automated extraction)

- explaining that “conclusory allegations, unwarranted deductions of facts or legal conclusions masquerading as facts will not prevent dismissal”
- noting that, “[a]lthough a district court would not be bound to follow any other district court’s determination, the decision would have significant persuasive effects.”

## Opinion text

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION

JATOON MOSS, as Personal
Representative for the ESTATE
OF CRAIG RIDLEY, on behalf of the
Estate and Survivors Jatoon Moss
and Gary Ridley,

Plaintiff,

v. Case No. 3:21-cv-1026-MMH-MCR

RICKY D. DIXON, et al.,

Defendants.
___________________________

ORDER

I. Status
Craig Ridley died while he was an inmate in the custody of the Florida
penal system. Ridley’s daughter, Jatoon Moss, filed this case on behalf of
Ridley’s estate and his survivors: Moss and her brother, Gary Ridley. Moss is
proceeding on a Second Amended Complaint for Damages (Doc. 70; SAC)
against Ricky Dixon, in his official capacity as the Secretary of the Florida
Department of Corrections (FDOC), and the following thirteen individuals who
worked at the Reception and Medical Center (RMC) at the time of the incident
forming the basis of Moss’s claims: Captain William Jeffrey Jerrels, Sergeant

John E. Nettles, Captain Jacob Anderson, Lieutenant Jason Livingston,
Sergeant John Nyitray, Sergeant Aaron Lewis, Sergeant Jon Eberlein,
Sergeant Richard Flynn, Sergeant Steven Potosky, Officer Daniel Greene,
Officer Royce Givens, and two John Does.1 Moss raises the following claims:2

(1) wrongful death against Defendants Nettles and Jerrels under Florida
Statute section 768.16, et seq.; (2) excessive use of force/failure to intervene
under 42 U.S.C. § 1983 against Defendants Nettles and Jerrels; (3) conspiracy
under 42 U.S.C. § 1983 against all Defendants except Dixon and Givens; (4)

deliberate indifference to excessive force under 42 U.S.C. § 1983 against
Defendants Jerrels and Anderson; (5) failure to protect under 42 U.S.C. § 1983
against all Defendants except Dixon; (6) violations of the Americans with
Disabilities Act (ADA) and Rehabilitation Act (RA) against Defendant Dixon;

(7) abuse or neglect of a vulnerable adult pursuant to Florida Statute section
415.1111 against all Defendants except Dixon and the John Does; (8)

1 The Court dismissed Moss’s claims against Registered Nurse Amanda Corey,
Licensed Practical Nurse Stephanie Winningham, and Dr. Jean Dure based on the
parties’ settlement. See Order (Doc. 92).
2 The Court identifies the claims as titled by Moss but renumbers the Counts in the
order they appear in the SAC, excluding the original Count VI (Failure to Treat)
because that Count was only against the medical defendants who are no longer
parties to this case. Thus, the numbering used in this Order may differ from the
numbers in the SAC and the parties’ filings.

2

intentional infliction of emotional distress (IIED) against all Defendants
except Dixon; (9) negligent infliction of emotional distress (NIED) against all
Defendants except Dixon; and (10) battery against Jerrels and Nettles. As
relief, Moss seeks monetary damages and attorney’s fees and costs.

Before the Court are the following Motions: (1) Defendants Anderson,
Jerrels, Livingston, Nyitray, and Potosky’s Motion to Dismiss (Doc. 80), in
which Defendant Givens joined (Doc. 109) (collectively referred to as the
Jerrels Defendants); (2) Defendant Dixon’s Motion to Dismiss Count VII (Doc.

87); and (3) Defendants Nettles, Lewis, Eberlein, Greene, and Flynn’s Motion
to Dismiss (Doc. 88) (collectively referred to as the Nettles Defendants). Moss
filed Responses (Docs. 96, 99, 100). With the Court’s permission, the Jerrels
Defendants filed a Reply (Doc. 106), as did Defendant Dixon (Doc. 113). The

Court also granted Moss’s request to file sur-replies, and Moss did so (Docs.
115, 118). Defendants Jerrels, Anderson, Livingston, Nyitray, and Potosky also
filed a Notice of Supplemental Authority (Doc. 120).3 The Motions to Dismiss
are ripe for review.

3 Given the number of documents relating to the Motions, for ease of reference, the
Court cites to the document and page numbers as assigned by the Court’s electronic
case filing system.

3

II. Moss’s Allegations in the SAC4
On September 8, 2017, Ridley was housed at RMC, where he worked in
the kitchen. SAC at 6-7. Early that morning, Defendant “Nettles was verbally
abusive to Ridley for ‘being late’ for kitchen duty.” Id. at 7. “Ridley argued with

Nettles about the issue, [and] Nettles is reported to have become further
enraged because Ridley had answered back disrespectfully.” Id. Nettles moved
Ridley “to an area ‘off-camera’ to ‘counsel’ Ridley, which was a euphemism for
excessive force.” Id. “Nettles said Ridley was assaultive and that [Nettles]

placed [Ridley] on the ground by himself but didn’t remember much about the
incident.” Id. Nettles did have “a slight scratch on his left cheek.” Id. at 9.
Defendant Jerrels stated “that he assisted Nettles in using force on Ridley, who
ended up on the ground face first.” Id. at 7.

According to Moss, a “[h]and-held video showed that at 3:32 a.m., Ridley
was lying in a fetal position, handcuffed, unmoving, with his face down in the
grass outside Dorm A.” Id. at 8. Jerrels stated “on camera that Sgt. Nettles was
attempting to counsel Ridley on ‘his attitude getting up to go to work for food

4 In considering the Motions, the Court must accept all factual allegations in the SAC
as true, consider the allegations in the light most favorable to Moss, and accept all
reasonable inferences that can be drawn from such allegations. Hill v. White, 321
F.3d 1334, 1335 (11th Cir. 2003); Jackson v. Okaloosa Cnty., 21 F.3d 1531, 1534 (11th
Cir. 1994). As such, the facts recited here are drawn from the SAC, and may well
differ from those that ultimately can be proved.

4

service this morning at which time he struck Sgt. Nettles on the left-hand side
of his face’ and that he (Capt. Jerrels) ‘assisted Sgt. Nettles in placing inmate
on the ground.’” Id. Jerrels further stated that Ridley was “refusing to walk to
go to medical.” Id. Jerrels instructed correctional staff (not any of the named

Defendants) to place Ridley in a wheelchair and take him to the medical
department. Id. When staff did so, Ridley’s “legs dangle[d] limply in the air”
and “[h]e nearly fell out of the chair as it moved but an officer grabbed his
shirt.” Id. According to reports, officers reported that as Ridley was taken to

medical, he stated, “‘my neck is broke,’” and “‘I’m paralyzed.’” Id.
A nurse then examined Ridley, but “[s]he did not do any neurological
tests, even simple reflex tests, but cleared him for confinement.” Id. at 10. The
medical examination lasted about 15 minutes. Id. Nurse Corey acknowledged

that “she should have done a pin-prick reflex test but did not,” and “she didn’t
ask for [Ridley’s] handcuffs to be removed because the officers ‘would have
laughed at her’ since he was reported to have hit an officer.” Id. “Nurse Corey
scold[ed] Ridley for not getting out of his wheelchair into another chair.” Id. at

11. Ridley reported that “‘[t]hey hit my head against the wall.’” Id. The video
shows Ridley’s head hanging down to his chest, and he asks one of the guards

5

to “‘push [his] head up.’” Id. A guard told Ridley, “‘Your blood pressure and all
is fine. You ain’t paralyzed.” Id.
Thereafter, Defendant Anderson and two other correctional sergeants
transported Ridley to confinement. Id. at 13. Anderson reported that Nurse

Corey “told them that Ridley could be transported to the main unit without
any special medical precautions.” Id. “Officers just manhandled Ridley out of
the wheelchair into the van.” Id. The video reflects “Ridley[’s] legs swinging
limply as he is moved from the wheelchair to the transport van and his left leg

slams against the van door.” Id. “When Ridley was moved to the main unit[,]
he did not go through the medical department but was moved directly to a
holding cell in confinement.” Id. at 14. Ridley was alone in an unmonitored
holding cell for four hours. Id.

Ridley was moved to confinement without the proper paperwork. Id. at
14-15. Defendant “Lewis oversaw Ridley’s DC-221 paperwork which was
purportedly signed by Ridley though Ridley could not have written his
signature.” Id. at 15. The Florida Department of Law Enforcement (FDLE)

“concluded [Ridley’s signature] may have been forged by Officer Jeremy
Bennett.” Id.

6

Defendants Nyitray and Greene moved Ridley to a confinement cell and
placed him on the toilet. Id. “Ridley then fell to the floor face-first and lay in a
pool of blood for hours.” Id. Defendants Givens, Greene, and Nyitray were
informed that Ridley needed help, but none of them took any action to assist

Ridley. Id. at 15, 20. “Eventually, Ridley was taken to see on-duty RN Kelly
Strama who concluded he suffered paralysis and sent him to Urgent Care for
evaluation.” Id. at 15. Defendant Lewis took Ridley to the Urgent Care clinic
in a wheelchair. Id. Nurse Kirkland did not complete the proper paperwork

because Ridley “‘was going to die of the cancer on his neck anyway.’” Id.
Dr. Dure saw Ridley and reported that “Ridley’s neurological tests were
normal, and he was able to grab Dr. Dure’s fingers and he saw Ridley walk.”
Id. at 16. Subsequently, Dr. Dure reported “that he was provided the

information that Ridley had walked to Urgent Care.” Id. Dr. Dure cleared
Ridley to return to confinement. Id.
Defendants Lewis and Eberlein “returned Ridley to a confinement cell
and arranged his body on the bed so it looked like he was sitting up.” Id. Ridley

remained in the same position for four days. Id. At least one inmate informed
Defendant Livingston of Ridley’s condition. Id. “The day Ridley got to
confinement, Livingston contacted an inmate to tell him he was going to give

7

him a cellmate to ‘take care of.’ Livingston used to pay the inmate in cigarettes
to beat up inmates. The inmate declined.” Id.
On September 9, 2017, “Ridley was checked on 23 times: once by Nyitray;
eight times by Givens (including all three meals)[;] eight times by Green[;] and

seven [times] by Underwood. All said there was nothing unusual but Ridley
hadn’t moved.” Id. at 17. The next day, September 10, 2017, “Ridley was
checked on 20 times that shift; 13 times by Givens, including all three meals[;]
four times by Greene[;] twice by Nyitray[;] and once by Mallard.” Id. Givens

acknowledged that the paperwork completed did not reflect that Ridley had
refused nine consecutive meals. Id. at 17-18. On September 11, 2017, “Ridley
was checked on 18 times. [Defendant] Flynn did security checks on Ridley 14
times and served all three meals and took them away untouched.” Id. at 18.

Livingston checked on Ridley twice and Combee checked on Ridley four times
(including once with Flynn). Id. “Flynn would have seen that each time Ridley
was propped up on his bunk in just the same position as the time before,
unmoving and without food.” Id. During the evening shift, “Ridley was checked

on 23 times[,] . . . 11 times by [Defendant] Potosky, nine times by [Officer]
Thomas Welsh, and once by [Officer] Bobby Reeves.” Id. Ultimately, Ridley
“went five days without food or water or basic hygiene,” but “[a]ll the prison

8

records were fabricated to make it look like he was being treated like an able-
bodied prison inmate, able to walk and sign documents.” Id. at 18-19.
Ridley was taken back to Urgent Care on September 12, 2017. Id. at 19.
“Later that day it was decided to send him to Memorial Hospital in

Jacksonville, but he wasn’t actually moved until early” the next morning. Id.
“Because RMC paperwork was fabricated or missing, medical providers at
Memorial Hospital were unable to get a clear understanding of what had
happened to Ridley and were unable to treat him appropriately.” Id. at 22.

Ridley eventually died at the Hospital on October 12, 2017. Id. Dr. Pfalzgraf
performed an autopsy and “found the cause of death as ‘complications of
quadriplegia’ with spinal cord contusions due to blunt impact to the head and
neck.” Id. Dr. Pfalzgraf ruled the death a “‘homicide.’” Id. Prison staff at RMC

“spread the rumor that Ridley had ‘died of cancer.’” Id.
Moss also summarizes the FDLE investigation, see id. at 23-26, and data
related to “abuse and retaliation” in the Florida prison system, id. at 26-28.
Attached to the SAC is an “Affirmation” under penalty of perjury from Ridley’s

sister, Diane Ridley Gatewood. Ms. Gatewood avers in pertinent part:
I was the person designated as the emergency
contact for my brother, Craig Alan Ridley, who was
serving a term in prison in Florida.

9

On September 21, 2017, Glenda Webb, a social
worker at Jacksonville Memorial Hospital called and
left a message (phone number (386) 496-7277) asking
that I contact her about Craig Ridley. The message
stated that I needed to verify my identity before any
information would be released. No one from the
[FDOC] ever told me how Craig’s injury occurred.

On September 22, 2017, I contacted Ms. Webb
about my brother and she stated that Craig was in
serious condition in the hospital’s ICU. She did not say
why. On September 23, 2017, I traveled from
Brooklyn, New York on [a] 6:00 AM flight to
Jacksonville, Florida. I arrived at the hospital at 11:00
AM.

I spoke with various hospital personnel about
Craig’s condition from September 23 to September 26.
I spoke with Dr. Hernan Chang, the supervising
physician, Dr. Rodas, the attending physician, Dr.
Robinson, gastroenterologist[,] and Dr. Shaw, acute
care physician. None of the physicians told me that
Craig was suffering from a fractured neck precipitated
by an injury that occurred at RMC. I was told that
Craig had a mass on his upper spine and cervix that
was cancerous. “That no biopsies were done due to his
weaken [sic] condition.” One of the physicians
indicated “that there was temporary paralysis
(quadriplegia) until neurosurgery.” Craig had assisted
respiration, blood pressure and possible brain damage.
I said my mother was suffering from breast cancer and
was hospitalized. I asked whether he was “brain dead.”
I was informed that he was not brain dead. I was told
by an attending nurse that he flatlined three times
upon early arrival at the hospital.

On September 26, 2017, Craig underwent a
surgical procedure and I was not allowed to visit that

10

day. I was able to visit him daily during the designated
visiting hours established by the [FDOC] on
September 23, 24, 25 and 27.

I was able to obtain an extended visitation
waiver given his critical condition. During visitation
with Craig in the ICU, he was intubated and could not
speak. He was also manacled to the bed. I thought that
was cruel and unnecessary given his grave condition.
There were two or three guards in the room with us.

My brother didn’t appear to be lucid which is
why I asked if he was brain dead. Once or twice he
blinked his eyes. I’m not sure if he knew who was in
the room. I just chatted. I told him I loved him and our
mother loved him. I didn’t think I could elicit any
information from him about what happened. Craig
appeared gravely injured but no one told me the cause
of his injuries.

On September 28, 2017, while at the
Jacksonville Airport, I received a telephone call from I
believe Dr. Chang indicating that Craig had rallied
and his condition improved. I was told that Craig
received medicine through a feeding tube on
September 29, 2017. On October 4, 2017, I received a
call from Glenda Webb indicating that he was “holding
his own and was a fighter and maybe my visit gave
him the will to live.” Again, no one told me what had
happened to him.

I was called by the hospital and told that Craig
died on October 12, 2017, at 4:30 AM at Jacksonville
Memorial Hospital.

I learned something about the basis of Craig’s
death upon issuance of the death certificate which I
received on December 10, 2017, indicating death by

11

“homicide caused by complications of quadriplegia,
dislocation of c4-c5 vertebrae with spinal cord
contusion, blunt impact to head and neck.” At that
time I was still not informed who caused Craig’s death
or how it happened.

On January 17, 2018, I received an e-mail from
Special Agent Supervisor Matt Walsh of the Florida
Department of Law Enforcement (FDLE). He wrote
that this was still an active criminal investigation and
that he might not be able to answer all my questions
but he thought I might be able to assist the
investigation. I subsequently spoke with FDLE
investigators. I did not receive sufficient information
to provide a clear idea of what had happened to Craig.

I finally received the FDLE Summary Report on
November 2, 2020. I received the full Investigative
Report on February 21, 2021. It was at that point I was
able to get a fairly comprehensive picture of what had
happened to Craig.

Doc. 70-1 at 2-3 (paragraph enumeration omitted).
III. Motion to Dismiss Standard
In ruling on a motion to dismiss, the Court must accept the factual
allegations set forth in the complaint as true. See Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009); Swierkiewicz v. Sorema N.A., 534 U.S. 506, 508 n.1 (2002); see
also Lotierzo v. Woman’s World Med. Ctr., Inc., 278 F.3d 1180, 1182 (11th Cir.
2002). In addition, all reasonable inferences should be drawn in favor of the
plaintiff. See Randall v. Scott, 610 F.3d 701, 705 (11th Cir. 2010). Nonetheless,

12

the plaintiff must still meet some minimal pleading requirements. Jackson v.
BellSouth Telecomm., 372 F.3d 1250, 1262-63 (11th Cir. 2004). Indeed, while
“[s]pecific facts are not necessary[,]” the complaint should “‘give the defendant
fair notice of what the . . . claim is and the grounds upon which it rests.’”

Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam) (quoting Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 555 (2007)). Further, the plaintiff must allege
“enough facts to state a claim to relief that is plausible on its face.” Twombly,
550 U.S. at 570. “A claim has facial plausibility when the pleaded factual

content allows the court to draw the reasonable inference that the defendant
is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing Twombly,
550 U.S. at 556).
A “plaintiff’s obligation to provide the grounds of his entitlement to relief

requires more than labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do[.]” Twombly, 550 U.S. at 555 (internal
quotations omitted); see also Jackson, 372 F.3d at 1262 (explaining that
“conclusory allegations, unwarranted deductions of facts or legal conclusions

masquerading as facts will not prevent dismissal”) (internal citation and
quotations omitted). Indeed, “the tenet that a court must accept as true all of
the allegations contained in a complaint is inapplicable to legal conclusions[,]”

13

which simply “are not entitled to [an] assumption of truth.” Iqbal, 556 U.S. at
678, 680. Thus, in ruling on a motion to dismiss, the Court must determine
whether the complaint contains “sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its face[.]’” Id. at 678 (quoting

Twombly, 550 U.S. at 570).
IV. Analysis
a. Consideration of Documents Outside the Four Corners
of the SAC

The Jerrels and Nettles Defendants request that the Court consider
documents outside the four corners of Moss’s SAC. Doc. 80 at 5-8; Doc. 109;
Doc. 88 at 4 n.4. Specifically, Defendants contend that in response to an earlier
motion to dismiss filed by former defendants Dure and Corey, Moss filed the
following documents which she refers to in the SAC and which they contend
are central to her claims: the medical examiner’s report (Doc. 40-5), Ridley’s

medical records (Doc. 40-1), and the FDLE report (Doc. 40-4). Doc. 80 at 5-6.
“‘Under the doctrine of incorporation by reference, [courts] may also
consider documents attached to the motion to dismiss if they are referred to in
the complaint, central to the plaintiff’s claim, and of undisputed authenticity.’”

Luke v. Gulley, 975 F.3d 1140, 1144 (11th Cir. 2020) (quoting Hi-Tech Pharms.,
Inc. v. HBS Int’l Corp., 910 F.3d 1186, 1189 (11th Cir. 2018)). Here, although

14

Moss may not dispute the authenticity of the medical examiner’s report,
Ridley’s medical records, or the FDLE report, that does not necessarily mean
that at this point in the litigation, the Court should consider or interpret the
contents of the documents. This is so especially given that Moss asserts some

medical records and other reports were fabricated. And one portion of the
FDLE report Defendants rely on is a summary of what an inmate (Moise
Cherette) told FDLE Special Agent Mauer about statements Ridley made to
Cherette. Indeed, the Court agrees with Moss that “Defendants ask the Court

to use those documents to resolve the parties’ competing factual question of
when the statute of limitations accrued. That is not permitted at this stage.”
Doc. 99 at 5. Under these circumstances, the Court declines to consider and
interpret the documents as Defendants request.

The Court, however, will consider Ms. Gatewood’s Affirmation because
it is attached to the SAC. But the Court declines to interpret the Affirmation
in the manner that Defendants suggest at this stage of the litigation. First,
Defendants heavily rely on the fact that Ms. Gatewood was Ridley’s

“emergency contact” and they repeatedly assert, without citation to authority,
that as such, Ms. Gatewood had access to Ridley’s medical records. But simply
because Ms. Gatewood was Ridley’s “emergency contact” does not necessarily

15

mean she had authority to access his medical records at the hospital or the
prison. Second, that Ms. Gatewood believed Ridley was in “serious condition”
and “appeared gravely injured” does not equate to her knowing that Ridley was
subjected to force at the prison which caused his injuries. Instead, she avers

that nobody told her that Ridley’s injuries resulted from an incident at the
prison. The statements in Ms. Gatewood’s Affirmation do not substantively
conflict with the allegations of the SAC. Thus, the Court finds Defendants’
assertions in this regard unavailing.

b. Statute of Limitations
The Jerrels and Nettles Defendants argue that Moss’s § 1983 and state
law claims raised in Counts I (wrongful death), II (excessive force/failure to
intervene), III (conspiracy), IV (deliberate indifference to excessive force), V

(failure to protect), VII (abuse or neglect of vulnerable adult), VIII (IIED), IX
(NIED), and X (Battery) are barred by the statute of limitations and should be
dismissed. See Doc. 80 at 22-24; Doc. 109; Doc. 88 at 4-8. Likewise, Defendant
Dixon argues that Moss’s sole claim against him under the ADA and RA (Count

VI) should be dismissed because it was filed beyond the four-year statute of
limitations. See Doc. 87 at 8-18.

16

i. Section 1983 and ADA/RA Claims
The statute of limitations applicable to Moss’s § 1983 and ADA/RA
claims is four years. The parties disagree as to when the statute of limitations
began to run, as well as whether, if this case was filed beyond the statute of

limitations, Moss is entitled to the benefit of the doctrine of equitable tolling.
“Federal law governs when a federal civil rights claim accrues.”
Karantsalis v. City of Miami Springs, Fla., 17 F.4th 1316, 1322 (11th Cir. 2021)
(citing Rozar v. Mullis, 85 F.3d 556, 561 (11th Cir. 1996)). “Generally, ‘the

statute of limitations does not begin to run until the facts which would support
a cause of action are apparent or should be apparent to a person with a
reasonably prudent regard for his rights.’” Lovett v. Ray, 327 F.3d 1181, 1182
(11th Cir. 2003) (quoting Rozar, 85 F.3d at 561-62); see Doe as Next Friend of

Doe #6 v. Swearingen, 51 F.4th 1295, 1303 (11th Cir. 2022) (same). “Plaintiffs
must know or have reason to know that they were injured, and must be aware
or should be aware of who inflicted the injury. This rule requires a court first
to identify the alleged injuries, and then to determine when plaintiffs could

have sued for them.” Karantsalis, 17 F.4th at 1322-23 (internal quotations and
citations omitted).
That is not to say that a plaintiff must know or suffer
the full extent of his injury before his cause of action

17

accrues and the statute of limitations begins to run.
Rather, a plaintiff must know or have reason to know
that he was injured to some extent. Rozar, 85 F.3d at
562. . . . Generally, the injury inquiry will be a highly
fact-specific determination.

Id. at 1323.
As to Moss’s excessive force claim (Count II), deliberate indifference to
excessive force claim (Count IV), failure to protect claim (Count V), and
ADA/RA claim (Count VI), the injuries occurred between September 7 and 13,
2017 or—at the latest—on the date of Ridley’s death (October 12, 2017). As to
Moss’s conspiracy claim (Count III), the date is not as clear, as Moss includes
allegations regarding the alleged coverup after Ridley’s death. Regardless,
when Moss could have sued for Ridley’s injuries as alleged in these Counts is
factually disputed.
At this juncture, the Court must take as true Moss’s allegations in the
SAC. In doing so, the Court cannot find that it is facially apparent from the
SAC that Ridley, in light of his injuries, was “a person with a reasonably
prudent regard for his rights.” Ridley apparently thought at the time of the

incident that he was paralyzed, but he was told by medical and correctional
staff that he was not. He was left for about five days in his cell unable to move,
eat, drink, or engage in personal hygiene. Nor was he able to file a grievance,

18

write a letter, make a phone call, or otherwise communicate with any family
members “who could champion his rights after his death.” Walton for Est. of
Smith v. Fla. Dep’t of Corr., No. 3:16-cv-1130-J-39JRK, 2019 WL 462844, at *3
(M.D. Fla. Feb. 6, 2019).5 Additionally, as the Court previously found, “to the

extent Defendants intentionally withheld information or misled [Moss] as to
the cause of her [father’s] death, fairness dictates [Moss] be afforded an
opportunity to sufficiently present her arguments as to whether she timely
filed her claims considering all relevant facts and applicable legal and

equitable principles.” Id. Thus, the questions of when the claims accrued and
whether Moss timely filed such claims, along with whether Moss is entitled to
equitable tolling, are decisions best left for after discovery when all facts are
fully developed. See Karantsalis, 17 F.4th at 1319-20 (“We have provided that

dismissal for failure to state a claim on statute of limitations grounds is
appropriate only if it is apparent from the face of the complaint that the claim
is time-barred.” (internal quotations and citations omitted)). Thus, Defendants’

5 The Court notes that although decisions of other district courts are not binding, they
may be cited as persuasive authority. See Stone v. First Union Corp., 371 F.3d 1305,
1310 (11th Cir. 2004) (noting that, “[a]lthough a district court would not be bound to
follow any other district court’s determination, the decision would have significant
persuasive effects.”). While there are differences between Ridley and the decedent in
Walton, the Court finds the reasoning of the Walton case to be persuasive.

19

requests to dismiss these claims as barred by the statute of limitations are due
to be denied.
ii. State Law Claims
Regarding Moss’s wrongful death claim (Count I), “the Florida statute of

limitations for a wrongful-death action is two years.” Taylor v. R.J. Reynolds
Tobacco Co., 441 F. App’x 664, 665 (11th Cir. 2011) (citing Fla. Stat. §
95.11(4)(d)). As to the remaining state law claims, a four-year statute of
limitations applies. See Doc. 80 at 22-24; Doc. 88 at 4-8. “In Florida, a cause of

action for wrongful death accrues on the date of death.” Fulton Cnty. Adm’r v.
Sullivan, 753 So. 2d 549, 552 (Fla. 1999). Ridley died on October 12, 2017, and
Moss did not file this lawsuit until October 12, 2021. Thus, the wrongful death
claim is untimely unless some principle of tolling applies.

Moss argues that two doctrines apply to make these state law claims
timely: fraudulent concealment and equitable estoppel. Doc. 99 at 7-16.
“Fraudulent concealment requires the defendants to engage in the willful
concealment of the cause of action using fraudulent means to achieve that

concealment.” Raie v. Cheminova, Inc., 336 F.3d 1278, 1282 n.1 (11th Cir.
2003) (citation omitted). “In order to establish fraudulent concealment,
plaintiff must allege and establish 1) successful concealment of the cause of

20

action, 2) fraudulent means to achieve that concealment, and 3) plaintiff
exercised reasonable care and diligence in seeking to discover the facts that
form the basis of his claim.” Burr v. Philip Morris USA Inc., No. 8:07-cv-1429-
MSS, 2012 WL 5290164, at *3 (M.D. Fla. Sept. 28, 2012). Notably, “[c]laims of

fraudulent concealment involve highly individualized questions of fact.” Hall
v. Burger King Corp., No. CIV A.890260CIVKEHOE, 1992 WL 372354, at *9
n.8 (S.D. Fla. Oct. 26, 1992) (quotations and citation omitted).
“Equitable estoppel is based on principles of fair play and essential

justice and arises when one party lulls another party into a disadvantageous
legal position.” Major League Baseball v. Morsani, 790 So. 2d 1071, 1076 (Fla.
2001). It “presupposes a legal shortcoming in a party’s case that is directly
attributable to the opposing party’s misconduct,” and “bars the wrongdoer from

asserting that shortcoming and profiting from his or her own misconduct.” Id.
at 1077. In that way, equitable estoppel “functions as a shield, not a sword, and
operates against the wrongdoer, not the victim.” Id.
Defendants argue that the “death certificate clearly nullifies [Moss’s]

allegations and shows that ‘the family’ had sufficient knowledge that Mr.
Ridley had likely been harmed by the defendants’ conduct which is all that is
required to find the alleged multiple causes of action accrued.” Doc. 106 at 8.

21

The Court disagrees, at this stage, that the death certificate is as definitive as
Defendants assert. Considering the record, the Court finds that like Moss’s
federal claims, Moss has alleged enough regarding the state law claims to
survive a motion to dismiss on statute of limitations grounds.

c. Conspiracy – Intracorporate Conspiracy Doctrine6
The Nettles Defendants argue that Moss’s conspiracy claim should be
dismissed due to the intracorporate conspiracy doctrine or alternatively,
because Moss fails to state a claim. See Doc. 88 at 11-15.7 In response, Moss

argues that the doctrine does not apply because (1) the former medical
defendants, who are alleged to be a part of the conspiracy, may not be
considered FDOC employees; and (2) “several exceptions,” including the

6 In the section of their Motion arguing that Moss’s failure to protect claim should be
dismissed based on qualified immunity, the Nettles Defendants “ask the Court to
apply the reasoning here concerning qualified immunity to the Section 1983
Conspiracy counts.” Doc. 88 at 15 n.5. The Court declines to consider an argument
that Defendants fail to adequately raise.
7 The Jerrels Defendants state that they “adopt the reasoning in co-defendants’
motions to dismiss as to why this [conspiracy] count should also be dismissed.” Doc.
80 at 18-19. However, they fail to identify which co-defendants’ arguments they
adopt. This incorporation by reference is inappropriate. Local Rule 3.01(a) requires
the movant to state the precise relief requested and grounds therefor “in a single
document no longer than twenty-five pages inclusive of all parts . . .,” and the Court
is not inclined to sift through various motions to decipher what arguments the Jerrels
Defendants seek to join.

22

criminal conspiracy exception, apply to this case and preclude application of
the intracorporate conspiracy doctrine. See Doc. 100 at 8-11.
“The intracorporate conspiracy doctrine holds that acts of corporate
agents are attributed to the corporation itself, thereby negating the

multiplicity of actors necessary for the formation of a conspiracy.” McAndrew
v. Lockheed Martin Corp., 206 F.3d 1031, 1036 (11th Cir. 2000). The doctrine
recognizes that “[a] corporation cannot conspire with its employees and its
employees, when acting within the scope of their employment, cannot conspire

among themselves.” McPhie v. Yeager, 819 F. App’x 696, 701 (11th Cir. 2020);
see Dickerson v. Alachua Cnty. Comm’n, 200 F.3d 761, 767 (11th Cir. 2000)
(“The reasoning behind the intracorporate conspiracy doctrine is that it is not
possible for a single legal entity consisting of the corporation and its agents to

conspire with itself, just as it is not possible for an individual person to conspire
with himself.”).
While all remaining Defendants were FDOC employees, Moss argues
that the former medical defendants, who are alleged to be a part of the

conspiracy, may not be considered FDOC employees, and thus are not
employees of the same corporation for purposes of the intracorporate
conspiracy doctrine. Thus, the doctrine may not be factually applicable.

23

Regardless, taking Moss’s allegations as true, this case may present an
exception to the doctrine with respect to potential criminal conduct. Thus, the
Court declines to apply the intracorporate conspiracy doctrine to bar Moss’s
claim at this stage of the proceeding. See Logan v. Johnson, No. 3:13-cv-532-J-

39MCR, 2014 WL 5473561, at *5-6 (M.D. Fla. Oct. 28, 2014) (denying a motion
to dismiss based on the intracorporate conspiracy doctrine, finding that the
case may present an exception based on potential criminal conduct); Newsome
v. Lee Cnty., Ala., 431 F. Supp. 2d 1189, 1203-05, 1203 n.7 (N.D. Ala. 2006)

(denying a motion to dismiss and declining to apply the intracorporate
conspiracy doctrine to a conspiracy claim brought by an inmate against
sheriff’s department employees, finding applicable the criminal conspiracy
exception and the personal stake exception). Defendants’ Motion is due to be

denied in this regard.
d. Conspiracy – Failure to State a Claim
The Nettles Defendants argue that Moss has failed to state a conspiracy
claim because “[Moss] provides no factual basis to support a conspiracy claim.”

See Doc. 88 at 13, 15. “To state a claim for conspiracy under § 1983, a plaintiff
must allege that (1) the defendants reached an understanding or agreement
that they would deny the plaintiff one of his constitutional rights; and (2) the

24

conspiracy resulted in an actual denial of one of his constitutional rights.”
Weiland v. Palm Beach Cnty. Sheriff’s Off., 792 F.3d 1313, 1327 (11th Cir.
2015) (citing Hadley v. Gutierrez, 526 F.3d 1324, 1332 (11th Cir. 2008)).
Considering the allegations in the SAC, taken as true, the Court finds Moss

has sufficiently stated a conspiracy claim. Thus, the Nettles Defendants’
Motion is due to be denied to the extent it seeks dismissal of the conspiracy
claim.
e. Wrongful Death Claim Subsumes State Law Claims

The Jerrels Defendants argue that Moss’s wrongful death claim
subsumes his battery, NIED, and IIED claims.8 See Doc. 80 at 21. “An
individual’s claims for personal injuries not causing death survive the
decedent’s death and may be prosecuted by the personal representative as a

survival claim, which is a distinct cause of action from a wrongful death claim.”
Homaday v. Smith & Nephew, Inc., 994 F. Supp. 2d 1264, 1267 (M.D. Fla.
2014) (citing Fla. Stat. § 46.021). However,

8 The section of the Jerrels Defendants’ Motion raising this argument addresses only
the battery, NIED, and IIED claims. See Doc. 80 at 21. In Moss’s Response and the
Jerrels Defendants’ Reply, they also refer to other Counts. See Doc. 99 at 17; Doc. 106
at 3. The Court addresses only the Counts the Jerrels Defendants seek to dismiss in
their Motion. Additionally, to the extent the Jerrels Defendants seek dismissal of the
IIED and NIED claims for failure to state a claim in their Reply, Doc. 106 at 6-7, the
Court declines to address such arguments because they were not properly raised.

25

“[w]hen a personal injury to the decedent results in
death, no action for the personal injury shall survive,
and any such action pending at the time of death shall
abate.” § 768.20, Fla. Stat. [emphasis removed]; see
also Mucciolo v. Boca Raton Reg’l Hosp., Inc., 824 F.
App’x 639, 643-44 (11th Cir. 2020) (“[A]ny personal
injury claims alleging wrongdoing that ultimately
resulted in the death of the decedent are extinguished
upon death, leaving the statutory wrongful death
claim as the only avenue for damages against the
tortfeasor.”). “[A]lternative theories of relief [are]
subsumed in the wrongful death claim, and no claim,
other than the statutory wrongful death claim, [can]
be brought or require[s] consideration by the district
court.” Mucciolo, 824 F. App’x at 644; see Banuchi v.
City of Homestead, No. 20-25133-Civ-Scola, 2021 WL
2333265, at *7 (S.D. Fla. June 8, 2021) (Scola, J.)
(holding Florida’s Wrongful Death Act precluded
personal injury torts where defendant’s actions
resulted in decedent’s death); see also Shehada v.
Tavss, 965 F. Supp. 2d 1358, 1378 (S.D. Fla. 2013)
(Lendard, J.) (“[W]hen death is the result of a personal
injury, the law of Florida essentially substitutes a
statutory wrongful death action for the personal injury
action[.] (quoting Niemi v. Brown & Williamson
Tobacco Corp., 862 So. 2d 31, 33 (Fla. 2d DCA 2003))).

Groover v. Polk Cnty. Bd. of Cnty. Commissioners, 570 F. Supp. 3d 1134, 1153-
54 (M.D. Fla. 2021) (order on motions for summary judgment).
As to the battery claim, Moss specifically pleads that claim in the
“alternative to her cause of action for wrongful death.” SAC at 46. Regarding
Moss’s IIED and NIED claims, Moss seeks damages for Ridley’s injuries that
did not result in his death. See Doc. 99 at 19. Indeed,

26

[t]he survival statute allows the person to recover “for
injuries that did not result in the death of the plaintiff-
decedent,” and the Wrongful Death Act allows for
“wrongful death damages where the injury to the
decedent ultimately resulted in death.” Capone, 116
So.3d at 375-76.[9] While both causes of action are
necessarily “inconsistent and [in the] alternative,”
Smith v. Lusk, 356 So.2d 1309, 1311 (Fla. 2d DCA
1978), when “the cause of the decedent’s death may be
disputed by the parties,” a plaintiff may plead both,
Capone, 116 So.3d at 377.

In re Engle Cases, 45 F. Supp. 3d 1351, 1362 (M.D. Fla. 2014) (footnote
omitted). At this stage of the litigation, the Court declines to find that the
wrongful death claim subsumes the battery, IIED, and NIED claims.
Therefore, the Jerrels Defendants’ Motion will be denied to the extent they
argue that the wrongful death claim subsumes the battery, IIED, and NIED
claims.
f. ADA/RA – Failure to State a Claim
Defendant Dixon argues that Moss’s claim against him should be
dismissed due to Moss’s failure “to allege that the decedent was discriminated
against ‘because of’ his alleged disability.’” Doc. 87 at 19. Instead, according to
Dixon, Moss’s allegations suggest that “there was systematic mistreatment of
all inmates across the state[] of Florida, and that [Ridley’s] alleged

9 Capone v. Philip Morris USA, Inc., 116 So. 3d 363 (Fla. 2013).

27

mistreatment was consistent with the general mistreatment of inmates.” Doc.
113 at 9. Dixon also argues that the SAC “makes clear that any mistreatment
suffered by [Ridley] was part of a conspiracy in which the other defendants
‘pursued their own, independent criminal interests for mutual protection

which were inconsistent with the interest of FD[O]C.’” Id. (emphasis omitted).
In response, Moss argues that she has sufficiently stated a claim “under a
failure to accommodate theory.” Doc. 96 at 16. Moss further contends that
“Rule 8(d) allows [Moss] to plead inconsistently and in the alternative.” Doc.

118 at 1.
Regarding claims under the ADA and RA:10
Under Title II of the ADA, public entities are
prohibited from discriminating against individuals
with disabilities or denying them services because of
their disabilities. See 42 U.S.C. § 12132. “Only public
entities are liable for violations of Title II of the ADA.”
Edison v. Douberly, 604 F.3d 1307, 1308 (11th Cir.
2010). State prisons are public entities for purposes of
the ADA. Pa. Dep’t of Corr. v. Yeskey, 524 U.S. 206,
210 (1998). . . .

10 “With the exception of its federal funding requirement, the RA uses the same
standards as the ADA, and therefore, cases interpreting either are applicable and
interchangeable.” Badillo v. Thorpe, 158 F. App’x 208, 214 (11th Cir. 2005) (citing
Cash v. Smith, 231 F.3d 1301, 1305 & n. 2 (11th Cir. 2000)); see also Palmer v.
McDonald, 824 F. App’x 967, 968 n.1 (11th Cir. 2020) (“The [RA] expressly adopts the
[ADA’s] provisions and standards for determining violations of the law. We therefore
cite directly to the ADA and apply our precedents interpreting that statute.”).

28

Owens v. Sec’y, Fla. Dep’t of Corr., 602 F. App’x 475, 477-78 (11th Cir. 2015)
(some internal citations modified); see Shotz v Cates, 256 F.3d 1077, 1079 (11th
Cir. 2001).
To state a claim under Title II, [a plaintiff must] allege
“(1) that he is a qualified individual with a disability;
(2) that he was either excluded from participation in
or denied the benefits of a public entity’s services,
programs, or activities, or was otherwise
discriminated against by the public entity; and (3) that
the exclusion, denial of benefit, or discrimination was
by reason of [his] disability.”

Ingram v. Kubik, 30 F.4th 1241, 1256-57 (11th Cir. 2022) (quoting Silberman
v. Miami Dade Transit, 927 F.3d 1123, 1134 (11th Cir. 2019)).
Here, accepting Moss’s allegations as true, the Court finds that she has
sufficiently stated claims under the ADA and RA. While Moss’s claims may
ultimately fail if challenged by a properly supported motion for summary
judgment or at trial, at this point, the ADA and RA claims will proceed. Thus,
Defendant Dixon’s Motion is due to be denied.
g. Failure to Protect – Failure to State a Claim
The Nettles Defendants argue that Moss’s failure to protect claim (Count
V) should be dismissed based on qualified immunity. Doc. 88 at 15-18.
Specifically, Defendants contend that “[t]here was not a clear right that was
violated by these Defendants,” who “were all acting within the scope of their

29

duties.” Id. at 17, 18. Moss argues that “[q]ualified immunity should not apply
to section 1983 claims,”11 and regardless, Defendants are not entitled to it. Doc.
100 at 12-17.
“Qualified immunity protects from civil liability government officials

who perform discretionary functions if the conduct of the officials does not
violate ‘clearly established statutory or constitutional rights of which a
reasonable person would have known.’” Nolin v. Isbell, 207 F.3d 1253, 1255
(11th Cir. 2000) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). As a

result, the qualified immunity defense protects from suit “‘all but the plainly
incompetent or those who knowingly violate the law.’” Carr v. Tatangelo, 338
F.3d 1259, 1266 (11th Cir. 2003) (citation omitted). Indeed, as “‘government
officials are not required to err on the side of caution,’ qualified immunity is

appropriate in close cases where a reasonable officer could have believed that
his actions were lawful.” Lee v. Ferraro, 284 F.3d 1188, 1200 (11th Cir. 2002)
(quoting Marsh v. Butler Cnty., Ala., 268 F.3d 1014, 1031 n.8 (11th Cir. 2001)).
To be entitled to qualified immunity, an official must first establish that

his conduct fell within his discretionary authority. See Webster v. Beary, 228

11 The Supreme Court and the Eleventh Circuit have routinely applied qualified
immunity to section 1983 claims.

30

F. App’x 844, 848 (11th Cir. 2007). If the defendant so shows, the burden shifts
to the plaintiff to show that qualified immunity is not appropriate using the
two-prong test established by the Supreme Court in Saucier v. Katz, 533 U.S.
194, 201 (2001). In accordance with Saucier, the Court must ask whether the

facts viewed in the light most favorable to the plaintiff “show the officer’s
conduct violated a constitutional right?” Id.; see also Hope v. Pelzer, 536 U.S.
730, 736 (2002); Beshers v. Harrison, 495 F.3d 1260, 1265 (11th Cir. 2007)
(quoting Scott v. Harris, 550 U.S. 372, 377 (2007)). The court must also ask

whether the right allegedly violated was clearly established at the time of the
violation. Hope, 536 U.S. at 739; Saucier, 533 U.S. at 201; Scott, 550 U.S. at
377; Underwood v. City of Bessemer, 11 F.4th 1317, 1328 (11th Cir. 2021) (“we
ask two questions: (1) whether the facts that a plaintiff has alleged or shown

make out a violation of a constitutional right, and (2) if so, whether the right
at issue was clearly established at the time of the defendant's alleged
misconduct”) (internal quotations omitted). The Court may consider these
questions in whichever order it chooses, and qualified immunity will protect

the defendant if the answer to either question is “no.” Pearson v. Callahan, 555
U.S. 223, 232, 236 (2009); Underwood, 11 F.4th at 1328. Notably, “[b]ecause
§ 1983 ‘requires proof of an affirmative causal connection between the official’s

31

acts or omissions and the alleged constitutional deprivation,’ each defendant is
entitled to an independent qualified-immunity analysis as it relates to his or
her actions and omissions.” Alcocer v. Mills, 906 F.3d 944, 951 (11th Cir. 2018)
(quoting Zatler v. Wainwright, 802 F.2d 397, 401 (11th Cir. 1986)).

“[T]he eighth amendment’s proscription against cruel and unusual
punishment imposes a duty to provide reasonable protection” when a prison
official becomes “aware of a threat to an inmate’s health and safety.” Brown v.
Hughes, 894 F.2d 1533, 1537 (11th Cir. 1990). When prison officials are

“deliberately indifferent to a known danger . . ., their failure to intervene
offend[s] ‘evolving standards of decency’ [and] ris[es] to the level of a
constitutional tort.” Id. (citing Estelle v. Gamble, 429 U.S. 97, 105-06 (1976)).
The Court addresses the acts and omissions of each of the Nettles

Defendants first. Regarding Defendant Nettles, Moss cites to the fact that
“Nettles testified that he assisted in the use of force and did not prevent it.”
Doc. 100 at 16 (citing an Eleventh Circuit case discussing a failure to intervene
claim). Moss has a separate failure to intervene claim against Defendant

Nettles (Count II). Moss, however, also contends that Nettles knew Ridley
needed a stretcher but failed to provide him with one. Id. This allegation, along
with Moss’s allegations relating to the incident as a whole, sufficiently state a

32

claim of a violation of a clearly established constitutional right. Thus, at this
point, Nettles is not entitled to qualified immunity on the failure to protect
claim.
According to Moss, Lewis oversaw Ridley’s paperwork, which was

purportedly signed by Ridley even though Ridley could not have written his
signature. SAC at 15. The FDLE investigation concluded that Ridley’s
signature may have been forged by Officer Jeremy Bennett. Id. On September
8, 2017, Lewis escorted Ridley to Urgent Care, and the nurse stated she was

told by an officer that Ridley walked to the clinic. Id.; see id. at 20 (alleging
that “Lewis took Ridley to medical falsely conveying to the nurse and Dr. Dure
that he had seen Ridley walk”). After Dr. Dure cleared Ridley, Lewis and
Eberlein returned Ridley to a cell and “arranged his body on the bed so it looked

like he was sitting up, . . . relaxing on his bunk.” Id. at 16. “Lewis said [Ridley]
was in the same position four days later.” Id. at 20. Accepting these allegations
as true, the Court finds that Lewis is not entitled to qualified immunity at this
stage of the litigation.

As to Defendant Eberlein, Moss alleges that on September 8, 2017, along
with Defendant Lewis, Eberlein arranged Ridley’s body on his bed so it
appeared Ridley was sitting up and relaxing—which is how Ridley remained

33

for several days. SAC at 16. Moss’s allegations are sufficient to state a claim of
a violation of a clearly established constitutional right. Thus, at this point,
Eberlein is not entitled to qualified immunity on the failure to protect claim.
Moss alleges that Defendant Greene, along with Nyitray, on September

8, 2017, placed Ridley on a toilet, removed his handcuffs, and “let him go,” and
“Ridley then fell to the floor face-first and lay in a pool of blood for hours.” SAC
at 15. Despite being informed, Greene did not take any action. Id. at 20. The
following day (September 9, 2017), Greene checked on Ridley eight times,

indicating “there was nothing unusual but Ridley hadn’t moved.” Id. at 17. On
September 10, 2017, Green checked on Ridley four times. Given the allegations
in the SAC that Ridley did not move for several days from this position, the
Court finds that, taking Moss’s allegations as true, she has stated a failure to

protect claim against Greene, and Greene is not entitled to qualified immunity
at this time.
Finally, as to Defendant Flynn, Moss alleges that on September 11, 2017,
Flynn checked on Ridley 14 times, including serving Ridley all 3 meals while

taking the trays “away untouched.” SAC at 18. “Flynn would have seen that
each time Ridley was propped up on his bunk in just the same position as the
time before, unmoving and without food.” Id. When serving Ridley his last meal

34

that day, “Flynn opened the food slot but did not leave any food.” Id. The next
day, September 12, 2017, “Flynn conducted one security check on Ridley. He
had to see Ridley in the same position with untouched meals on the floor.” Id.
at 21. Taking Moss’s allegations as true, the Court finds she has stated a viable

failure to protect claim against Flynn, and Flynn is not entitled to qualified
immunity at this time.
At this juncture, the Court finds that the Nettles Defendants’ request for
qualified immunity on this claim is due to be denied.

h. Abuse or Neglect of a Vulnerable Adult – Failure to State
a Claim

Defendants Eberlein, Lewis, Greene, and Flynn assert that Moss fails to
state a claim against them for abuse or neglect of a vulnerable adult (Count
VII). See Doc. 88 at 18-21. Moss argues that she has sufficiently stated a claim,
and that Defendants misinterpret the cases on which they rely. Doc. 100 at 17-
18.
In the SAC, Moss alleges that Ridley was a vulnerable adult, and
Defendants abused and neglected him. See SAC at 42-43. Pursuant to Florida
Statute § 415.1111:

A vulnerable adult who has been abused, neglected, or
exploited as specified in this chapter has a cause of
action against any perpetrator and may recover actual

35

and punitive damages for such abuse, neglect, or
exploitation. The action may be brought . . . by the
personal representative of the estate of a deceased
victim without regard to whether the cause of death
resulted from the abuse, neglect, or exploitation.

A “vulnerable adult,” is defined as “a person 18 years of age or older whose
ability to perform the normal activities of daily living or to provide for his or
her own care or protection is impaired due to a mental, emotional, sensory,
long-term physical, or developmental disability or dysfunction, or brain
damage, or the infirmities of aging.” Fla. Stat. § 415.102(28). Additionally,
“Abuse” means any willful act or threatened act by a
relative, caregiver, or household member which causes
or is likely to cause significant impairment to a
vulnerable adult’s physical, mental, or emotional
health. Abuse includes acts and omissions.

. . . .

“Neglect” means the failure or omission on the part of
the caregiver or vulnerable adult to provide the care,
supervision, and services necessary to maintain the
physical and mental health of the vulnerable adult,
including, but not limited to, food, clothing, medicine,
shelter, supervision, and medical services, which a
prudent person would consider essential for the well-
being of a vulnerable adult. The term “neglect” also
means the failure of a caregiver or vulnerable adult to
make a reasonable effort to protect a vulnerable adult
from abuse, neglect, or exploitation by others.
“Neglect” is repeated conduct or a single incident of
carelessness which produces or could reasonably be

36

expected to result in serious physical or psychological
injury or a substantial risk of death.

Fla. Stat. § 415.102(1), (16).
Taking as true the allegations in the SAC, the Court finds that at this
point, Moss has sufficiently stated a claim. Therefore, Defendants Eberlein,
Lewis, Greene, and Flynn’s request to dismiss Count VII will be denied.
i. IIED – Failure to State a Claim
According to the Nettles Defendants, Moss has failed to adequately
allege an IIED claim against them. See Doc. 88 at 21-23.
Florida courts have explained that a claim for [IIED]
has four elements: (1) deliberate or reckless infliction
of mental suffering; (2) outrageous conduct by the
defendant; (3) the conduct caused the emotional
distress; and (4) the emotional distress was severe.
See, e.g., Thomas v. Hospital Bd. of Directors of Lee
Cnty., 41 So. 3d 246, 256 (Fla. 2d DCA 2010); Stewart
v. Walker, 5 So. 3d 746, 749 (Fla. 4th DCA 2009). To
demonstrate that the defendant engaged in
outrageous conduct, the plaintiff must show that the
defendant’s actions were “‘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.’”
Metropolitan Life Ins. Co. v. McCarson, 467 So. 2d
277, 278-79 (Fla. 1985) (quoting Restatement
(Second) of Torts § 46 (1965)).
Christman v. Walsh, 416 F. App’x 841, 845 (11th Cir. 2011); see Knezevich v.
Carter, 805 F. App’x 717, 725-26 (11th Cir. 2020).

37

Considering as true Moss’s allegations in the SAC, the Court finds that
she has stated a viable IIED claim against these Defendants. Thus, their
Motion is due to be denied to the extent it seeks dismissal of the IIED claim.
j. NIED – Sovereign Immunity or Failure to State a Claim

The Nettles Defendants contend that they are entitled to sovereign
immunity with respect to Moss’s NIED claim (Count IX). See Doc. 88 at 23-24.
Alternatively, Defendants argue that “[Moss] fails to plead her own emotional
distress impact sufficiently.” Id. at 23 n. 6. In response, Moss contends that

sovereign immunity does not apply, and Moss’s “NIED claim is about Mr.
Ridley’s emotional distress after he suffered a ‘discernable physical injury.’”
Doc. 100 at 20 (emphasis omitted). “[Moss] seeks damages on behalf of Mr.
Ridley as his personal representative.” Id. (emphasis omitted).

Florida Statute section 768.28(9)(a) provides in pertinent part:
An officer, employee, or agent of the state or of any of
its subdivisions may not be held personally liable in
tort or named as a party defendant in any action for
any injury or damage suffered as a result of any act,
event, or omission of action in the scope of her or his
employment or function, unless such officer, employee,
or agent acted in bad faith or with malicious purpose
or in a manner exhibiting wanton and willful
disregard of human rights, safety, or property.

Fla. Stat. § 768.28(9)(a).

38

Considering Moss’s allegations overall, the Court finds that she has
alleged the NIED was committed with malicious purpose or in a manner
exhibiting wanton and willful disregard of Ridley’s rights and safety. Thus, the
Motion is due to be denied in this regard.

As to Defendants’ impact rule argument, Moss contends that Defendants
misinterpret the claim—Moss is bringing the NIED claim for Ridley’s injuries;
thus, “[s]he need not show her own physical impact or manifestation to recover
predeath damages for [Ridley’s] suffering.” Doc. 100 at 20. Because Defendants

argue only that “[Moss] fails to plead her own emotional distress impact
sufficiently,” which is not on point with Moss’s allegations, Defendants’ Motion
is due to be denied to that extent.
Accordingly, it is

ORDERED:
1. Defendants Anderson, Jerrels, Livingston, Nyitray, and Potosky’s
Motion to Dismiss (Doc. 80), which was joined by Defendant Givens (Doc. 109),
is DENIED.

2. Defendant Dixon’s Motion to Dismiss Count VII (Doc. 87) is
DENIED.
3. Defendants Nettles, Lewis, Eberlein, Greene, and Flynn’s Motion

39
to Dismiss (Doc. 88) is DENIED.
4, Defendants’ Joint Motion to Stay Discovery (Doc. 121) is DENIED

as moot.
5. The discovery responses filed by counsel Samantha Dunlap-Smart
(Doc. 122) are STRICKEN.
6. Defendants shall answer the SAC by June 26, 2023.
DONE AND ORDERED at Jacksonville, Florida, this 26th day of
May, 20238.

United States District Judge

JAX-3 5/4
C:
Counsel of Record

40

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10112986. Public record. Not legal advice.