D. L. v. Hernando County Sheriff's Office

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

D.L., a minor, by and through his next-of-

friends, S.L. and R.L., mother and father of

the minor,

Plaintiffs,

Case No.: 8:22-cv-35-JLB-AEP

v.

HERNANDO COUNTY SHERIFF’S

OFFICE, a public entity, AL NIENHUIS, in

his official capacity as Sheriff of Hernando

County, Florida, DEPUTY PAUL SMITH

School Resource Officer, in his individual

and official capacities, and HERNANDO

COUNTY SCHOOL BOARD, a public entity,

Defendants.

_______________________________________/

ORDER

Plaintiff D.L., a minor, sues numerous defendants, including the Hernando

County Sheriff’s Office (“HCSO”) and the Hernando County School Board (“HCSB”)

for Fourth and Fourteenth Amendment violations as well as violations of Title II of

the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12132. (See Docs. 1, 53,

62). The Second Amended Complaint (Doc. 62) is the operative complaint in this

matter. Defendant HCSO, as well as Sheriff Al Nienhuis (“Sheriff Nienhuis”), and

Deputy Paul Smith (“Deputy Smith,” and together with HCSO and Sheriff

Nienhuis, the “HCSO Defendants”) have filed a motion to dismiss the Second

Amended Complaint. (Doc. 71). D.L. filed a response. (Doc. 75).1 Upon careful

review, the Motion to Dismiss (Doc. 71) is GRANTED in part and DENIED in

part.

BACKGROUND2

D.L. is a child who has been diagnosed with non-communicative autism.

(Doc. 62 at ¶ 26). He “experiences difficulty staying focused, paying attention,

controlling behavior, complying with directives, and maintaining being seated, and

is substantially limited in one or more major life activities, including learning and

neurological brain functions.” (Id. at ¶ 27). During the 2017-2018 school year, D.L.

was ten years old and enrolled in the fifth grade at the Winding Waters Elementary

School (“Winding Waters”), a school in the Hernando County School District. (Id. at

¶ 26). School personnel were aware of D.L.’s autism diagnosis and understood that

D.L. needed a “behavior intervention plan” in order to “manage his disability-

related behavior.” (Id. at ¶ 28).

1 On May 12, 2023, Plaintiff filed Plaintiff’s (Time Sensitive) Unopposed Motion for

Extension of Time to Respond to the Motion to Dismiss (Doc. 74), but the request

was incorrectly uploaded as a response in opposition to the Motion to Dismiss and

the Court thus was not aware of the request. D.L.’s response to the Motion to

Dismiss was then filed ten days later. (Doc. 75). Because the request for extension

of time was unopposed and Defendants have not objected to the late filing, the

Court will consider the response. See Perez v. Wells Fargo N.A., 774 F.3d 1329,

1332 (11th Cir. 2014) (noting a “strong preference for deciding cases on the merits—

not based on a single missed deadline—whenever reasonably possible”).

2 A court must accept a plaintiff’s factual allegations as true at the motion to

dismiss stage. West v. Warden, 869 F.3d 1289, 1296 (11th Cir. 2017) (“When

considering a motion to dismiss, we accept as true the facts as set forth in the

complaint and draw all reasonable inferences in the plaintiff’s favor”) (internal

quotation marks and citations omitted). Accordingly, this background section relies

on the facts recited in the Second Amended Complaint. (Doc. 62).

On January 10, 2018, while D.L. was in a classroom at Winding Waters, he

“experienced disability-related difficulties including complying with directives from

teachers and administrators; controlling his emotions; and, controlling his physical

conduct.” (Id. at ¶ 29). At the time, D.L. stood about 4’10” tall and weighed about

90 pounds. (Id. at ¶ 26). D.L. was removed from his classroom and taken to the

school office. (Id. at ¶ 29). Deputy Smith isolated D.L. by “plac[ing] [him] in

seclusion.” (Id.) Deputy Smith and other school personnel placed handcuffs on D.L.

“in such a fashion to cause physical injuries” to D.L. and the seclusion continued.

(Id. at ¶ 30). Still in handcuffs, D.L. was then removed from the school and

transported by HCSO to Spring Brook, a mental health facility located in Hernando

County. (Id. at ¶¶ 31–32). While there, the HCSO had D.L. involuntarily

committed under the Baker Act. (Id. at ¶ 32). D.L. continues to suffer “emotional

pain, psychological injury, trauma, and suffering” in the aftermath of these events.

(Id. at ¶ 42).

DISCUSSION

“At the motion to dismiss stage, all well-pleaded facts are accepted as true,

and the reasonable inferences therefrom are construed in the light most favorable to

the plaintiff.” Bryant v. Avado Brands, Inc., 187 F.3d 1271, 1273 n.1 (11th Cir.

1999) (citing Hawthorne v. Mac Adjustment, Inc., 140 F.3d 1367, 1370 (11th Cir.

1998)). To state a claim, a complaint must provide “a short and plain statement of

the claim showing that the pleader is entitled to relief,” and “must contain sufficient

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

face.’” Fed. R. Civ. P. 8(a)(2); Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “[C]onclusory

allegations, unwarranted factual deductions or legal conclusions masquerading as

facts will not prevent dismissal.” Davila v. Delta Air Lines, Inc., 326 F.3d 1183,

1185 (11th Cir. 2003) (citation omitted).

I. Whether the claims against Deputy Smith in his official capacity

should be dismissed.

The HCSO Defendants argue that the Second Amended Complaint is subject

to dismissal because it “fails to clearly indicate whether the claims are raised

against . . . Deputy Paul Smith, in his individual or official capacities.” (Doc. 71 at

5).

The Court has already dismissed the claims against Deputy Smith in his

official capacity. (Doc. 37 at 10) (“D.L. responds that he agrees with the Defendants

that Deputy Smith should not be sued in his official capacity. . . . Accordingly, the

Claims against Deputy Smith in his official capacity are due to be dismissed . . . .”).

Here, again, D.L. clarifies that he meant to sue Deputy Smith in his individual

capacity. (Doc. 75 at 3–6). But the Court understands Defendants’ confusion

because, as Defendants point out, the case style of the Second Amended Complaint

lists Deputy Smith in both his individual and official capacities (Doc. 62 at 1) and

the title of Count I of the Second Amended Complaint states that it is against

“Defendant School Resource Officer (Paul Smith) in his Official and Individual

Capacities” (Id. at 11). The section describing the parties indicates, however, that

“Defendant Smith is sued in his individual capacity.” (Id. at 7).

While the Second Amended Complaint contains inconsistencies, Plaintiff’s

intention to only sue Deputy Smith in his individual capacity is well-documented

throughout the record before the Court. (See Doc. 19 at 6; Doc. 75 at 3–6).

Accordingly, the Court will not dismiss any claims on this ground alone. See 5

Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1286

(4th ed. 2023) (“[T]he district court is obligated to make a determined effort to

understand what the pleader is attempting to set forth and to construe the pleading

in his or her favor, whenever the interest of justice so requires.”). To be clear,

however, any claims against Deputy Smith in his official capacity remain dismissed.

II. Whether Sheriff Nienhuis should be dismissed from this action.

In a similar vein, the HCSO Defendants request dismissal of Sheriff

Nienhuis from the Second Amended Complaint even though there are no claims

actually set forth against Sheriff Nienhuis. (Doc. 71 at 7–12).

The Court previously dismissed Sheriff Nienhuis as a defendant but granted

D.L. leave to amend. (Doc. 37 at 20–25). The HCSO Defendants point out that the

case style of the Second Amended Complaint lists Sheriff Nienhuis (Doc. 62 at 1)

and he is still listed as a party (Id. at 6–7). They admit, however, that Sheriff

Nienhuis is “not identified in any of the counts in the . . . Second Amended

Complaint . . . .” (Doc. 71 at 7–8).

D.L.’s response confirms that there is “no claim against Sheriff Nienhuis in

the Second Amended Complaint” and “he is not now a party to this action.” (Doc. 75

at 6–7). Because there is no claim pending against Sheriff Nienhuis, there is

nothing for this Court to consider with respect to dismissal. To be clear, however,

any claims against Sheriff Nienhuis remain dismissed.

III. Whether any claims against HCSO for violation of Florida Statute

§ 1003.573 should be dismissed.

Next, the HCSO Defendants argue that any claims against HCSO and Sheriff

Nienhuis under Florida Statute section 1003.573 are subject to dismissal with

prejudice. (Doc. 71 at 12). The Court has already found that Sheriff Nienhuis and

HCSO are not “school personnel” as dictated by the text of the statute. (Doc. 37 at

34).

As previously discussed, there are no claims in the Second Amended

Complaint against Sheriff Nienhuis. With respect to HCSO, Plaintiff argues that

“his allegations as to a violation of [section] 1003.573 against the HCSO should be

allowed to remain [in] the Second Amended Complaint – not as a separate claim

against the HCSO – but as a component of Plaintiff’s ADA claim against the

HCSO.” (Doc. 75 at 9).

It appears that there is nothing for this Court to dismiss because there are no

counts brought under section 1003.573. Nevertheless, the Court is troubled by

Plaintiff’s assertion that his ADA claim is predicated on a violation of section

1003.573, which seems to only apply to school personnel because this Court has

already ruled that HCSO is not “school personnel” as contemplated by Florida

Statute § 1003.573.

Accordingly, while the Court does not dismiss any of the claims because the

Complaint does not bring any claims under Florida Statute § 1003.573, the Court

cautions Plaintiff that any future argument as to a claim against HCSO that relies

on a violation of Florida Statute § 1003.573 may result in a dismissal of that claim.

IV. Whether Count II adequately pleads a claim for compensatory

damages.

Finally, the HCSO Defendants argue that D.L. improperly seeks to recover

compensatory damages from HCSO in Count II of the Second Amended Complaint.

(Doc. 71 at 13–14).

Count II alleges a violation of Title II of the ADA against HCSO. (Doc. 62 at

¶¶ 44–51). “To prevail on a claim for compensatory damages under . . . the ADA, a

plaintiff must show that a defendant violated his rights under the statute[] and did

so with discriminatory intent.” McCullum v. Orlando Reg’l Healthcare Sys, Inc.,

768 F.3d 1135, 1146–47 (11th Cir. 2014) (citation omitted). The Second Amended

Complaint alleges that “with deliberate indifference, Defendant HCSO failed to

implement the nondiscrimination and reasonable modification requirements of the

ADA . . . .” (Doc. 62 at ¶ 51c). Defendants argue that “deliberate indifference” is

insufficient to meet the standard.

The Eleventh Circuit has previously stated that “[t]o get damages . . . a

plaintiff must . . . prove that the entity that he has sued engaged in intentional

discrimination, which requires a showing of ‘deliberate indifference.’” Silberman v.

Miami Dade Transit, 927 F.3d 1123, 1134 (11th Cir. 2019) (quoting Liese v. Indian

River Cty. Hosp. Dist., 701 F.3d 334, 348 (11th Cir. 2012)). “Deliberate indifference”

is an “exacting standard.” Id. Deliberate indifference is shown where “the

defendant knew that harm to a federally protected right was substantially likely

and . . . failed to act on that likelihood.” Id. Moreover, “in order to hold a

government entity liable, the plaintiff must demonstrate that an ‘official who at a

minimum has authority to address the alleged discrimination and to institute

corrective measures on the [entity’s] behalf’ had ‘actual knowledge of discrimination

in the [entity’s] programs and fail[ed] adequately to respond.’” Id. at 1134 (quoting

Liese, 701 F.3d at 348). To qualify, the “official” must be “high enough up the chain-

of-command that his [or her] acts constitute an official decision by the [entity] not to

remedy the misconduct.” Id. (citing J.S., III by & through J.S. Jr. v. Hous. Cty. Bd.

of Educ., 877 F.3d 979, 987 (11th Cir. 2017) (alterations in original)). In other

words, “the official [must] have the knowledge of and authority to correct an entity’s

discriminatory practices,” and not just be a “line employee[].” Id. at 1135 (citing

Liese, 710 F.3d at 349).

The Second Amended Complaint makes the following allegations that, taken

as true, appear to address the issue of deliberate indifference:

• “Despite the provisions of federal and state law, Defendants HCSO and

Sheriff [Nienhaus] are aware that mechanical restraints have been used

against elementary aged school children, including school children with

disabilities, by School Resource Officers and law enforcement personnel

under their supervision. Defendants HCSO and Sheriff have permitted

and, upon information and belief, authorized School Resource Officers

and law enforcement officers to use mechanical restraints in such a way

as to constitute excessive force in restraining elementary school children

with disabilities, including the unlawful use of handcuffs with excessive

force and without necessity.” (Doc. 62 at ¶ 7).

• “Defendants HCSO, Sheriff and HCSB failed to create and maintain

proper and adequate policies, practices, procedures, or trainings

regarding the use of physical force and physical restraints, handcuffs,

and other types of physical force on elementary schoolchildren,

including students with disabilities such as Plaintiff.” (Id. at ¶ 22).

e “[W]ith deliberate indifference, HSCO failed to implement the

nondiscrimination and reasonable modification requirements of the

ADA through its policies, practices, procedures, and trainings, and

instead authorized its School Resource Officers such as Defendant

School Resource Officer to engage in disability discrimination against

Plaintiff.” Ud. at 51c).

Accepted as true for purposes of the Motion to Dismiss, these allegations

adequately assert that Sheriff Nienhuis, who the Second Amended Complaint

claims is “charged with the responsibility of establishing policies, practices, and

training for School Resource Officers and law enforcement officers assigned to a

public school,” (id. at § 7), had knowledge of discrimination by School Resource

Officers (id.) and failed to adequately address the discrimination (id. at 9 7,

22-24). Thus, the Second Amended Complaint, on its face, sufficiently establishes a

right to seek compensatory damages.

CONCLUSION

For the reasons set forth above, the Motion to Dismiss is GRANTED in part

and DENIED in part.

ORDERED at Tampa, Florida on November 16, 2023.

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JOHN L. BADALAMENTI

UNITED STATES DISTRICT JUDGE