# Cantrell Dunsmore v. Wells

> District Court, M.D. Florida · June 27, 2024

URL: https://www.frixlaw.com/law-library/cases/10642235

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** June 27, 2024
- **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/10642235

## Opinion text

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

DENISE CANTRELL DUNSMORE,
as Personal Representative of the Estate
of Brett Colin Cantrell,

Plaintiff,

v. Case No: 8:23-cv-1456-CEH-CPT

RICK WELLS, KELLY ZEITZ, RN,
NAPHCARE, INC., AMBER KENT-
STEVENS, CMA, EILEEN LOPEZ,
LPN, ELVIRA PEREZ, M.D.,
MANATEE COUNTY, FLORIDA and
ROY THOMPSON, LPN,

Defendants.
___________________________________/

ORDER
This matter comes before the Court on NaphCare Defendants’ Motion to
Dismiss (Doc. 50), Sheriff Rick Wells’ Motion to Dismiss (Doc. 51), Manatee
County’s Motion to Dismiss (Doc. 66), and Defendant Roy Thompson’s Motion to
Dismiss (Doc. 74). Plaintiff responded in opposition to the respective motions. Docs.
60, 61, 75, and 77. In the motions, Defendants seek dismissal of Plaintiff’s Amended
Complaint for failure to state a claim under Fed. R. Civ. P. 12(b)(6). Additionally,
Sheriff Wells and Manatee County move to dismiss or strike Plaintiff’s request for
punitive damages, which Plaintiff does not oppose. The Court, having considered the
motions and being fully advised in the premises, will grant the motions to dismiss
and/or strike the Plaintiff’s punitive damage claims against Sheriff Wells and Manatee
County. In all other respects, the motions to dismiss are denied.
I. BACKGROUND1

In this action filed under 42 U.S.C. §§ 1983 and 1988, Plaintiff Denise Cantrell
Dunsmore (“Plaintiff”), who is the mother of Brett Colin Cantrell (“Cantrell”) and
personal representative of Cantrell’s estate, sues Defendants for the tragic death of her
son while Cantrell was a pretrial detainee at the Manatee County Jail. Doc. 43. In her

Amended Complaint, Plaintiff names the following Defendants: (1) Rick Wells
(“Sheriff Wells”), Sheriff of Manatee County Sheriff’s Office (“MCSO”); (2)
NaphCare, Inc. (NaphCare”), Id. ¶ 44. who contracted with Manatee County to
provide medical services to those detained at the Manatee County Jail; (3) Manatee
County (“County”) who hired NaphCare; (4) Kelly Zeitz, R.N. (“Nurse Zeitz”), (5)

Medical Assistant Amber Kent-Stevens, CMA (“Medical Assistant Kent-Stevens”);
(6) Eileen Lopez, LPN (“Nurse Lopez”); (7) Roy Thompson, LPN (“Nurse
Thompson”); and (8) Elvira Perez, M.D. (“Dr. Perez”), who was the medical director
at the Manatee County Jail. Id. ¶¶ 8–13.
The Manatee County Jail (“Jail”) is a correctional facility intended to detain

people who are accused of violating Florida’s criminal laws within Manatee County,
Florida. Id. ¶ 14. On or abut March 22, 2020, Cantrell was arrested by MCSO and

1 The following statement of facts is derived from the Amended Complaint (Doc. 43), the
allegations of which the Court must accept as true in ruling on the instant Motion to Dismiss.
Linder v. Portocarrero, 963 F.2d 332, 334 (11th Cir. 1992); Quality Foods de Centro Am., S.A. v.
Latin Am. Agribusiness Dev. Corp. S.A., 711 F.2d 989, 994 (11th Cir. 1983).
detained as a pretrial detainee at the Jail on a charge of violation of probation. Id. ¶¶
15, 67. Cantrell remained in the custody of MCSO and the County until his death in
the infirmary cell of the Jail on March 27, 2020. Id. ¶ 16.

The Jail was designed and built to hold approximately 884 inmates. Id. ¶ 19.
Notwithstanding, as of June 2016, the daily average jail population was 1,123. Id. ¶
20. From 2015 to 2018, the daily population in the Jail ranged from 942 to 1128. Id. ¶
21. In an April 28, 2017, letter from Sheriff Wells to the County, he recognized that

the operations division in the jail was understaffed. Id. ¶ 22. In November 2021, the
Jail’s capacity was 988 but had an average daily population of 1,178. Id. ¶ 26.
The Jail maintained an infirmary section. Id. ¶ 23. Although built to
accommodate 24 inmates, the infirmary was often over capacity with an average of 36
to 38 people. Id. ¶ 24. At all relevant times, the Jail had only one non-psychiatric M.D.

physician that also served as medical director. Id. ¶ 25. The overcrowding of the Jail
and the infirmary continued into 2020 when Cantrell was incarcerated. Id. ¶ 26. It was
not until 2022 that Sheriff Wells and the County contracted to add a new medical ward
because, at the time, their existing 24-bed infirmary routinely housed 50 to 60 inmates.
Id. ¶ 26.

The County’s Board (“Board”) consisted of seven members. Id. ¶ 17. Some of
the Board’s meetings and work sessions discussed the Jail. Id. The Board was supposed
to receive monthly reports on the average daily population of the Jail. Id. ¶ 18. Since
at least 2015, the Board repeatedly expressed concerns that the County had no choice
but to renew its previous medical care contractor, Armor Correctional Health Services
(“Armor”), or increase their budget. Id. ¶ 27. The Board expressed negative sentiments
about increasing costs of providing health care in the Jail. Id. ¶ 28. In a November 2017

meeting, several Board members again voiced concerns about the rising costs of
providing medical care at the Jail. Id. ¶ 32. In the March 5, 2018 Memo following the
Board’s February 20, 2018 work session, the Board expressed concern over infirmary
overpopulation, ambulance costs, outside medical service trends, transportation costs

for emergency room visits, and emergency treatment issues. Id. ¶ 34. In response,
representatives of Armor pointed out that only 58 of the 512 recorded ambulance-to-
hospital runs were initiated by Armor. Id.
Ultimately, Sheriff Wells and the County discontinued their relationship with
Armor and the County contracted with NaphCare to provide medical services at the

Jail. Id. ¶ 35. Citing news articles from other jurisdictions, Plaintiff alleges that
NaphCare has a history of deliberate indifference and a custom, policy, practice, and
procedure of failing to send inmates to the hospital, delaying urgent medical treatment,
and poor record-keeping. Id. ¶ 35.
Plaintiff attaches a copy of the Contract between the County and NaphCare to

her Amended Complaint. Doc. 43-1. The contract was executed November 27, 2018,
with an effective date of January 1, 2019, and a three-year term continuing in effect
until December 31, 2021. Id.; Doc. 43 ¶¶ 36, 41. The base price for the first year for all
of NaphCare’s services was approximately six million dollars. Doc. 43 ¶ 43. Under the
Agreement, NaphCare was required to provide all medical and other health care
services, including laboratory, x-ray, and pharmacy services to Jail inmates and
detainees. Id. ¶ 45. The Agreement provided that NaphCare would be responsible for
the cost of all outside hospitalizations. Id. ¶¶ 44, 46. NaphCare had the duty to recruit,

select, train, promote, transfer, and release its personnel. Id. ¶ 48. During the term of
the contract, the County and MCSO periodically reviewed NaphCare’s history of
performance at other facilities around the country. Id. ¶ 53. When it took over from
Armor as the Jail’s medical provider, NaphCare retained much of the same staff

employed by Armor, including Dr. Perez. Id. ¶¶ 56, 57. In 2020, the County and
NaphCare were in a contractual dispute related to pharmacy costs exceeding the
contractual amount. Id. ¶ 55.
Under Florida law, the County has a statutory duty to pay for medical expenses
of pretrial detainees and prisoners at the Jail. Id. ¶ 58 (citing Fla. Stat. § 901.35(2)(a)).

That responsibility exists until such time as a pretrial detainee is released from the
arresting agency. Id. The County and MCSO had a non-delegable duty to provide
medical care to pretrial detainees, such as Cantrell, while he was in the custody of the
MCSO. Id. ¶ 60. The County and the MCSO contracted with NaphCare for NaphCare
to provide health care and mental health services to people detained at the Jail. Id. ¶

61.
Under MCSO’s policies, inmates at the Jail requiring emergency outside
medical treatment are to be transported to the Manatee Memorial Hospital emergency
room unless treatment can be best rendered elsewhere. Id. ¶ 63. The employees of the
Corrections Bureau and the contracted healthcare provider must work together to
provide inmate medical care in a timely and security conscious manner. Id. ¶ 64. Jail
staff must respond to emergency medical situations within four minutes of notification.

Id. ¶ 65. MCSO’s policies require staff to conduct a visual check of all inmates once
every two hours during the day and once every six hours between the hours of 11:00
p.m. and 6:00 a.m. Id. ¶ 66.
At the time of his incarceration on March 22, 2020, Cantrell was reported to

have a cough and fever for several days. Id. ¶ 68. He was suspected of being COVID-
19 positive, but he was not. Id. ¶¶ 68, 73. Cantrell was deemed at risk for drug and
alcohol withdrawal. Id. ¶ 69. On March 23, 2020, Nurse Thompson completed a
“Receiving Screening” for Cantrell, noting he was recently evaluated for abdominal
pain and was informed that he may have an Abdominal Aortic Aneurysm (“AAA”).

Id. ¶ 70. Although AAA can be life threatening, Nurse Thompson did not notify a
medical provider or send Cantrell to the emergency room for medical evaluation. Id.
Nurse Thompson also noted that Cantrell had fainted two days prior to arrest, but he
did not notify a medical provider or send Cantrell to the ER. Id. ¶ 71. Due to Cantrell’s
medical history and recent illness, he was housed in the overpopulated infirmary in a

cell with five other inmates. Id. ¶ 72.
A March 22, 2020 admission note states “IVFs started and will obtain Labs (sic)
work to assess for underlying condition.” Id. ¶ 74. On March 24, 2020, a Vital Signs
document reflected Cantrell had a low-grade fever of 99.1 and hypotensive blood
pressure (low at 93/61), with a resting pulse of 105. Id. ¶ 75. Despite the abnormal
vitals, the medical director was not called or notified, nor was Cantrell sent to an ER
or hospital, and no blood/lab work was done. Id. There is no notation in the medical

records of blood work being done on March 24, 2020. Id. ¶ 76,
On the morning of March 25, 2020, at 7:46 a.m., Cantrell reported not feeling
well and Nurse Lopez documents his blood pressure reading of 87/57 on two separate
reads, with a pulse of 102, and O2 saturation down to 96. Id. ¶ 79. No effort was made

to send Cantrell to the hospital. Id. There are two separate entries on March 25, 2020,
made by Medical Assistant Kent-Stevens of Cantrell’s BP of 102/64 at 9:52 a.m. and
137/89 at 9:53 a.m. Id. ¶ 81. Plaintiff alleges that the disparity in the readings one
minute apart draws into question the accuracy of the results. Id.
A SOAP2 note by Medical Director Perez is dated March 25, 2020, at 10:52

a.m., but was actually entered by Dr. Perez on March 27, 2020, at 1:24a.m. Id. ¶ 77.
The late entry SOAP Note documents: “Elevated HR: likely related to intravascular
depletion = IVF’s.” Id. ¶ 78. The treatment plan included obtaining labs and notifying
the M.D. once there is a report available from the lab tests. Id. Dr. Perez did not
examine Cantrell at any time from March 22 through March 26. Id. ¶ 95.

On March 25, 2020, at 7:43 p.m., Nurse Zeitz documents that “Pt. refused last
IV bag of fluids. Will continue to monitor and have provider f/u in a.m.” Id. ¶ 82.
Blood tests were not obtained until 8:58 a.m. on March 26, 2020, with delayed delivery

2 SOAP notes allow clinicians to document patient encounters. “SOAP” refers to subjective,
objective, assessment, and plan.
to the lab, and the lab results were not received back until the early morning hours of
March 27, 2020, after Cantrell died. Id. ¶¶ 83, 91.
On March 26, 2020, video evidence revealed Cantrell was in extreme medical

distress, including difficulty breathing, restlessness, irritability, vomiting, and
explosive diarrhea. Id. ¶ 84. Just after midnight on March 27, 2020, video of Cantrell
shows him using his bed sheets to clean feces off himself as he ran out of toilet paper,
which occurred about an hour after Cantrell pleaded for help because he could not
breathe. Id. A note at 12:47 a.m. states that Cantrell asked for assistance because he

was having a hard time breathing and was advised by Nurses Zeitz and Thompson
that he was “medically fine.” Id. ¶ 85. No staff member did a physical or in-person
check on Cantrell or a recheck of his vital signs by 1:00 a.m., although the preceding
day’s 11:59 p.m. note stated to recheck within one hour. Id. ¶ 86. Video evidence

documented Cantrell restlessly moving about in his infirmary bed until his body
became lifeless at approximately 1:15 a.m. Id. ¶ 87. Had Nurses Zeitz or Thompson
taken Cantrell’s vitals at 1:00 a.m., Plaintiff alleges that Cantrell may be alive today.
Id. ¶ 88.
It was not until 2:34 a.m. that MCSO and NaphCare staff were alerted to

Cantrell’s bed by another inmate. Id. ¶ 89. MCSO and NaphCare nurses detected no
pulse, CPR was administered, and Cantrell was pronounced dead at 2:55 a.m. on
March 27, 2020. Id. After Cantrell’s death, Nurse Seitz obtained verbal lab results for
Cantrell. Id. ¶ 90. An autopsy that was done reflected Cantrell’s cause of death was
necrotizing pneumonia. Id. ¶ 97. Plaintiff alleges that Cantrell’s death was caused by
the deliberate indifference of Defendants in failing to provide reasonable and necessary
medical care and treatment, failing to transfer him to a hospital for treatment, and for

misrepresenting that he was “medically fine” when he was clearly in distress. Id. ¶¶
96–101.
II. LEGAL STANDARD
To survive a motion to dismiss under Rule 12(b)(6), a pleading must include a

“short and plain statement of the claim showing that the pleader is entitled to relief.”
Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009) (quoting Fed. R. Civ. P. 8(a)(2)). Labels,
conclusions and formulaic recitations of the elements of a cause of action are not
sufficient. Id. (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
Furthermore, mere naked assertions are not sufficient. Id. A complaint must contain

sufficient factual matter, which, if accepted as true, would “state a claim to relief that
is plausible on its face.” Id. (quoting Twombly, 550 U.S. at 570). “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.” Id.
(citation omitted). The court, however, is not bound to accept as true a legal

conclusion stated as a “factual allegation” in the complaint. Id.
III. DISCUSSION
Plaintiff pursues a theory of deliberate indifference under Section 1983 in all
eight claims against Defendants. Section 1983 imposes liability on any person who,
under color of state law, deprives a person “of any rights, privileges, or immunities
secured by the Constitution and laws.” 42 U.S.C. § 1983. “Section 1983 is not itself a
source of substantive rights, but merely provides a method for vindicating federal rights

elsewhere conferred.” Albright v. Oliver, 510 U.S. 266, 271 (1994) (internal quotation
marks and quoted authority omitted). “The first step in any such claim is to identify
the specific constitutional right allegedly infringed.” Id.
The Fourteenth Amendment requires government officials to provide basic
necessities, including medical care, to pretrial detainees, such as Cantrell. Ireland v.

Prummell, 53 F.4th 1274, 1287 (11th Cir. 2022) (citing Hamm v. DeKalb Cnty, 774 F.2d
1567, 1574 (11th Cir. 1985)); see also Christmas v. Nabors, 76 F.4th 1320, 1335 (11th Cir.
2023) (“pretrial detainees have a right to receive medical treatment for their illnesses
and injuries”) (citations and internal quotation marks omitted). Thus, a failure to

provide the appropriate medical care to a pretrial detainee violates the Fourteenth
Amendment and is actionable under § 1983. Ireland, 53 F.4th at 1287 (citing
Valderrama v. Rousseau, 780 F.3d 1108, 1116 (11th Cir. 2015)).
A. Municipal Liability under Section 1983
A plaintiff bringing a section 1983 claim against a municipality based on the

acts of one of its employees/agents must prove two things. First, the plaintiff must
sufficiently allege a constitutional violation. See City of Los Angeles v. Heller, 475 U.S.
796, 799 (1986). Second, the “plaintiff suing a municipality under § 1983 must show
that the municipality itself injured the plaintiff by having in place a policy or custom
which violated the plaintiff’s rights.” Buckner v. Toro, 116 F.3d 450, 451 (11th Cir.
1997) (citing Monell v. Dept. of Social Servs. of New York, 436 U.S. 658 (1978)).
Under Monell, the municipal “policy” or “custom” must be the moving force

behind the constitutional violation and “[o]nly where a failure to train reflects a
‘deliberate’ or ‘conscious’ choice by the municipality can the failure be properly
thought of as an actionable city ‘policy.’” City of Canton, Ohio v. Harris, 489 U.S. 378,
379 (1989).

1. Sheriff Wells/MCSO3
Officials cannot be held liable pursuant to Section 1983 solely on the basis of
respondeat superior or vicarious liability. Bryant v. Jones, 575 F.3d 1281, 1299 (11th Cir.
2009) (citations omitted). Instead, supervisory defendants can only be liable if they
participate in the violation or if their actions caused the violation. Gonzalez v. Reno,

325 F.3d 1228, 1234 (11th Cir. 2003). Plaintiff has not alleged that Sheriff Wells
participated in the alleged violations. Rather, Plaintiff’s allegations are based on a
policy or custom of Sheriff Wells and MCSO in overlooking NaphCare’s widespread

3 “Sheriff’s departments and police departments are not usually considered legal entities
subject to suit, but capacity to sue or be sued shall be determined by the law of the state in
which the district court is held.” Dean v. Barber, 951 F.2d 1210, 1214 (11th Cir. 1992); see also
Fed. R. Civ. P. 17(b). “Under Florida law, sheriff’s offices lack the legal capacity to be sued.”
Wilk v. St. Lucie Cnty. Fla. Sheriff Off., 740 F. App’x 658, 662 (11th Cir. 2018); accord Faulkner
v. Monroe Cnty. Sheriff's Dep’t, 523 F. App’x 696, 701 (11th Cir. 2013) (“Florida law has not
established [s]heriff’s offices as separate legal entities with the capacity to be sued.”); see also
Navarro v. City of Riviera Beach, 192 F. Supp. 3d 1353, 1361 (S.D. Fla. 2016) (“[T]he Sheriff in
his official capacity, and not the county ‘Sheriff’s Office,’ is the proper party to an action
against the Sheriff or any employee of the Sheriff’s Office.”) Accordingly, Plaintiff names
Sheriff Wells as Defendant, in his official capacity, for the Manatee County Sheriff’s Office.
policy of not emergently transporting inmates when warranted and a custom of
employing individuals without current and valid CPR certification or proper training
to respond to medical emergencies. Doc. 43 ¶¶ 146–148. When alleging a claim against

a sheriff based on an official policy, a plaintiff must identify either (1) “an officially
promulgated policy, or (2) an unofficial custom or practice shown through the repeated
acts of the final policymaker of the entity.” Crenshaw v. Lister, 509 F. Supp. 2d 1230,
1237 (M.D. Fla. 2007) (citing Grech v. Clayton Cty., Ga., 335 F.3d 1326, 1329-30 (11th
Cir. 2003)). “Plaintiff must identify the policy or custom which caused his injury so

that liability will not be based on an isolated incident, McDowell v. Brown, 392 F.3d
1283, 1290 (11th Cir. 2004) (citations omitted), and the policy or custom must be the
moving force of the constitutional violation.” Crenshaw, 509 F. Supp 2d at 1237 (citing
Grech, 335 F.3d at 1330).

In the Amended Complaint, Plaintiff alleges that the MCSO had a non-
delegable duty to provide health care and services to pretrial detainees at the Jail. Doc.
43 ¶ 132. Pursuant to an agreement, MCSO and Sheriff Wells regulated and funded
NaphCare, whom they contracted to perform the governmental act of providing health
care services to pretrial detainees, including Cantrell. Id. ¶ 133. Prior to and during

Cantrell’s detention, NaphCare had a history and longstanding practice of failing to
transport pretrial detainees to outside medical services such as urgent cares, emergency
rooms, and hospitals or to activate emergency ambulance services for the benefit of
pretrial detainees. Id. ¶¶ 142–145. Plaintiff also alleges that Sheriff Wells and MCSO
had constructive knowledge of NaphCare’s longstanding and widespread practice of
not calling for emergency services when needed, and Sheriff Wells and the MCSO did
nothing to take action to stop this practice. Id. ¶ 146. Plaintiff further alleges that Sheriff
Wells and MCSO had several policies that support their claim of deliberate

indifference: a custom or policy of overlooking NaphCare’s failure to comply with its
contractual obligations and to adequately train its employees working at the jail. Id. ¶¶
147, 148; a policy of allowing employees to work at the Jail that did not have current
and valid CPR certification or without proper training in responding to medical
emergencies. Id. ¶ 149; a policy of allowing or condoning the provision of inadequate

care to pretrial detainees and ratifying the deliberate indifference to the health care
needs of pretrial detainees, including Cantrell. Id. ¶¶ 154, 155. The customs and
policies were motivated by convenience and financial disincentives, known by Sheriff
Wells and the MCSO, regarding the costs associated with proper auditing and

evaluating NaphCare, having to terminate NaphCare’s agreement and find a new
third-party vendor, and facing the prospects of recruiting, training, and supervising
new workers. Id. ¶¶ 158, 159. Plaintiff alleges that Sheriff Wells and MCSO’s customs
and policies placed pretrial detainees, like Cantrell, within the zone of risk to be
damaged or harmed and that the Defendants’ deliberate indifference caused Cantrell’s

death in an overcrowded infirmary cell. Id. ¶¶ 164–166. In a light favorable to Plaintiff,
the Amended Complaint states a cause of action for deliberate indifference against
Sheriff Wells, in his official capacity, for the MCSO.
In his motion to dismiss, Sheriff Wells asserts that any claim against him is
redundant to Plaintiff’s claim against the County and therefore should be dismissed.
Doc. 51. Because Plaintiff’s Monell claims against Sheriff Wells and the County are
based on the same general theory that the Sheriff and the County were financially
disincentivized to provide adequate medical care to Jail detainees, Sheriff Wells argues

that MCSO was not a party to the contract with NaphCare and therefore had no
obligation to fund or pay for NaphCare’s services. In support, Sheriff Wells directs the
Court to the contract Plaintiff attaches to the Amended Complaint which reflects that
the agreement with NaphCare was entered into between the County and NaphCare,
and neither Sheriff Wells nor MCSO was a party to the agreement. Sheriff Wells

argues that, pursuant to Manatee County ordinance, the Sheriff has been designated
as the County’s chief correctional officer and thus he serves at the pleasure of and as
an arm of the County. Doc. 51 at 8–9 (citing Manatee County Ordinance 88-14). As
such, he contends that Plaintiff’s claim against the Sheriff should be dismissed as
duplicative of Plaintiff’s claim against the County.

In a light favorable to the Plaintiff, Plaintiff has adequately alleged a Section
1983 claim against the Sheriff. The NaphCare contract was entered into for the
provision of medical care to the inmates in the care, custody, and control of the MCSO
who operates the Jail. Doc. 43-1 at 1, 14. Additionally, Plaintiff alleges a custom of
Sheriff Wells and MCSO not having employees who are CPR-certified or trained in

responding to emergency situations. While Plaintiff may not ultimately be able to bring
claims to trial against both the County and Sheriff Wells to the extent the alleged
violations are the same for both Defendants, Plaintiff has, at least at this juncture,
stated a cause of action against Sheriff Wells.
Alternatively, Sheriff Wells argues that to the extent the medical Defendants
were not deliberately indifferent, the policies of Sheriff Wells become moot and
Plaintiff’s Section 1983 claim against the Sheriff fails. In that regard, he argues that for

Plaintiff to be successful on a Monell claim against Sheriff Wells, Plaintiff must first
establish a deprivation of rights. The Court agrees. However, Sheriff Wells’ argument
rests primarily on adopting the arguments of the NaphCare Defendants in their motion
to dismiss. This Court’s local rules preclude a party from incorporating by reference in
their memorandum all or part of any other motion, legal memorandum, or brief. See

M.D. Fla. L.R. 3.01(f) (Apr. 1, 2024). In any event, because the Court concludes below
that Plaintiff states a cause of action against the NaphCare Defendants based on a
deliberate indifference theory, the Sheriff’s argument that a constitutional violation has
not been alleged is without merit. Thus, Sheriff Wells’ motion to dismiss is due to be

denied, except as to the issue of punitive damages, which is addressed below.
2. Manatee County
Section 1983 allows a prisoner to sue the municipality, or county, that runs the
prison system. Fields v. Corizon Health, Inc., 490 F. App’x 174, 181 (11th Cir. 2012).
“To do so, the prisoner must show that the municipality had a ‘custom or policy that

constituted deliberate indifference to that constitutional right’ [and] . . . that the custom
or policy caused the constitutional violation, as respondeat superior liability is not
permitted.” Id. (quoting McDowell, 392 F.3d at 1289). In its motion to dismiss, the
County argues that Plaintiff’s Amended Complaint “muddles” its Section 1983
deliberate indifference claim against the County by including allegations of negligent
hiring, supervision, retention and/or training. Doc. 66. Thus, the County submits it is
unclear whether Plaintiff is attempting to assert any other claim against it besides the
Monell claim under Section 1983. Regarding Plaintiff’s Section 1983 deliberate

indifference claim, the County argues that no unconstitutional policy or custom has
been alleged to give rise to Monell liability. The County further contends that the
Amended Complaint fails to allege any facts establishing a long-standing or
widespread County custom of allowing County employees to engage in deliberately
indifferent conduct toward detainees’ medical needs. The County argues that Plaintiff

may not rely on the facts of the Hannah lawsuit because that case involved a
predecessor health care company, Armor. The County similarly submits that
Plaintiff’s allegations regarding a failure to train fall far short of evidencing a deliberate
indifference. Lastly, the County argues Plaintiff’s claim for punitive damages should

be stricken.
In response, Plaintiff argues that switching health care companies does not
absolve the County of liability, particularly where the new company, NaphCare, used
many of the same employees. Plaintiff additionally argues that the County’s motion
ignores Plaintiff’s allegations of the County’s policy to allow overcrowding of the Jail,

particularly the infirmary/medical unit, which overcrowding was the moving force
behind the constitutional violation. Plaintiff submits she has sufficiently alleged a
custom and practice of failing to seek doctor consultations, failing to send inmates to
the hospital, refusing and delaying urgent medical treatment and poor medical records
keeping and documentation, and that such failures were driven by an effort to cut
costs.
Review of the Amended Complaint reveals Plaintiff has adequately alleged the

existence of a policy or custom to give rise to a Monell claim against the County, and
as discussed below, the Amended Complaint alleges a constitutional violation against
the NaphCare Defendants.4 In Count III of the Amended Complaint, Plaintiff alleges
the County had a long-standing policy and custom to place cost of care over quality of
care for inmates of the Jail. Doc. 43 ¶ 175. The County had knowledge of NaphCare’s

longstanding and widespread practice of failing to provide specialty or emergent care
for prisoners or arrange transport to urgent cares, emergency rooms, or hospitals. Id.
¶¶ 187, 188. Plaintiff further alleges the County had a policy or custom of not
evaluating prospective contractors such as NaphCare to ensure they were performing

under the agreement for care and that they were properly assessing pretrial detainees’
health conditions and activating emergency services when warranted. Id. ¶¶ 190–193.
Plaintiff also alleges the County had a policy or custom of condoning or ratifying the
provision of inadequate care to pretrial detainees in the Jail, including Cantrell. Id. ¶¶
195, 196. The County knew that NaphCare did not maintain adequate staff and

4 Plaintiff’s response does not address the County’s argument that the Amended Complaint
commingles negligence claims in its count under Section 1983. The Amended Complaint only
states a single count against the County (Count III) for deliberate indifference under 42 U.S.C.
§ 1983. Doc. 43 at 41–49. Accordingly, the Court need not address whether Plaintiff’s
Amended Complaint states a claim for negligence or under any other theory against the
County. No other claims are alleged against the County. See Doc. 43. To the extent Plaintiff
intended to assert a claim for failure to hire or train, such claim must be brought in a count
separate from the deliberate indifference count.
equipment. Id. ¶ 197. The County’s customs and policies were driven by convenience,
financial motives, and the fact that the County knew it was contractually indemnified
by NaphCare. Id. ¶¶ 199–201. The County had knowledge of the serious medical needs

of Cantrell and that the Jail infirmary was overcrowded and lacked necessary staff and
equipment. Id. ¶ 206. As a result of the County’s customs and policies and the
County’s deliberate indifference, Cantrell died in an overcrowded infirmary cell. Id. ¶¶
207, 208. In a light favorable to Plaintiff, she has adequately alleged a Monell claim

against the County.
3. NaphCare
Plaintiff asserts a § 1983 claim against NaphCare for failure to treat. Although
NaphCare is a private entity, it is considered a municipality for purposes of section
1983 liability because the County contracted with NaphCare to provide medical care

within the Manatee County jail system. “When a private entity like [NaphCare]
contracts with a county to provide medical services to inmates, it performs a function
traditionally within the exclusive prerogative of the state.” Buckner, 116 F.3d at 452.
As such, NaphCare was performing a traditional public function and is subject to
liability under Section 1983. See Fields, 490 F. App’x at 181–82 (noting that “[a]lthough

Prison Health is not a governmental entity, ‘[w]here a function which is traditionally
the exclusive prerogative of the state (or here, county) is performed by a private entity,’
that private entity, like a municipality, may be held liable under § 1983”) (quoting
Ancata v. Prison Health Servs., Inc., 769 F.2d 700, 703 (11th Cir. 1985)).
NaphCare files its motion to dismiss collectively with Nurse Zeitz, Medical
Assistant Kent-Stevens, Nurse Lopez, and Dr. Perez (“NaphCare Defendants”). Doc.
50. The NaphCare Defendants argue that Plaintiff’s allegations do not rise to the level

of being deliberately indifferent and that Plaintiff has not alleged NaphCare had a
policy or custom that was a moving force behind the alleged constitutional violation.
The Eleventh Circuit has held that “deliberate indifference” includes “the delay
of treatment for obviously serious conditions where it is apparent that delay would
detrimentally exacerbate the medical problem,” where “the delay does seriously

exacerbate the medical problem,” and where “the delay is medically unjustified.”
Harper v. Lawrence Cnty., 592 F.3d 1227, 1235 (11th Cir.2010) (quoting Taylor v. Adams,
221 F.3d 1254, 1259–60 (11th Cir. 2000)). A delay of even hours has been found to be
deliberately indifferent given the “reason for the delay and the nature of the medical
need.” McElligott v. Foley, 182 F.3d 1248, 1255 (11th Cir.1999). As discussed in the

section below regarding the individual NaphCare Defendants, Plaintiff alleges the
medical personnel delayed ordering diagnostic evaluations, the nurses indicated
Cantrell was “medically fine” when he wasn’t, and they failed to call a physician and
obtain the appropriate ambulatory transport or emergency medical services for

Cantrell when it was warranted.
NaphCare correctly argues that constitutional liability exists against it only if it
had an unconstitutional policy or custom that caused the alleged deprivation of
constitutional rights. The Amended Complaint sufficiently alleges the existence of
such policy or custom. Plaintiff alleges that NaphCare had a longstanding policy and
practice of delaying or failing to transport pretrial detainees in need of medical
assistance to outside urgent cares, emergency rooms, and hospitals when such
treatment was necessary. Doc. 43 ¶ 114. NaphCare had a longstanding practice of

delaying or failing to activate EMS, 911, Fire Rescue, and/or ambulance services for
the benefit of pretrial detainees. Id. ¶ 115. NaphCare had a financial incentive to delay
or fail to provide pretrial detainees with ambulatory, emergency, specialty, and/or off-
site care. Id. ¶ 120. NaphCare knew of Cantrell’s serious medical needs, which the staff
documented, but failed to treat Cantrell or send him to a hospital emergency room. Id.

¶ 122. As a result of NaphCare’s deliberate indifference to Cantrell’s serious medical
needs, Plaintiff alleges Cantrell died in an overcrowded infirmary cell. Id. ¶ 125.
Plaintiff satisfies the pleading standards for her Section 1983 claim against
NaphCare. The allegations of the Amended Complaint sufficiently allege that

NaphCare has a policy or custom of deliberate indifference towards inmates’ medical
care, which resulted in violation of Cantrell’s constitutional rights regarding medical
treatment. Plaintiff provided sufficient factual allegations to withstand a motion to
dismiss. Accordingly, NaphCare’s Motion to Dismiss the Section 1983 claim is due
to be denied.
B. Nurses Zeitz, Lopez and Thompson, and Medical Assistant Kent-Stevens
Plaintiff sues NaphCare employees Nurse Zeitz, Nurse Lopez, Nurse

Thompson,5 and Medical Assistant Kent-Stevens contending they were individually
deliberately indifferent to Cantrell’s medical needs. Deliberate indifference to a pretrial
detainee’s serious medical needs is a constitutional violation. Christmas, 76 F.4th at
1335 (citing Estelle v. Gamble, 429 U.S. 97, 103 (1976)). To state a claim for deliberate
indifference, Plaintiff must allege (1) that Cantrell had a serious medical need; (2) that

Defendants exhibited deliberate indifference to that need; and (3) that Defendants’
deliberate indifference caused Cantrell’s injury. Christmas, 76 F.4th at 1335 (citing
Mann v. Taser Int’l, Inc., 588 F.3d 1291, 1306–07 (11th Cir. 2009)). “Deliberate
indifferent requires: (1) subjective knowledge of a risk of serious harm; (2) disregard of
that risk; (3) by conduct that is more than mere negligence.” Rutledge v. Alabama, 724

F. App’x 731, 735 (11th Cir. 2018). “[C]onduct that is more than mere negligence
includes grossly inadequate care, administering easier but less effective treatment,
treatment that is so cursory as to amount to no medical care at all, and, in certain
situations, delaying necessary medical treatment.” Id. “A defendant who delays
necessary treatment for non-medical reasons may exhibit deliberate indifference.” Hill

v. Dekalb Reg’l Youth Det. Ctr., 40 F.3d 1176, 1187 (11th Cir. 1994). A serious medical
need may be “one diagnosed by a physician as mandating treatment or one so obvious

5 Nurse Roy Thompson filed his own motion to dismiss (Doc. 74) because at the time the
other NaphCare Defendants filed their motion to dismiss, Nurse Thompson had not yet been
served.
that even a lay person would ‘easily recognize’ the need for a doctor’s attention.” Race
v. Bradford Cty., Fla., No. 3:18-cv-153-BJD-PDB, 2019 WL 7482235, at *8 (M.D. Fla.
Aug. 20, 2019) (quoting Mann, 588 F.3d at 1307). A serious medical need may also

“be determined by whether delay in treatment worsened the condition.” Id. (citing
Mann, 588 F.3d at 1307). “In either case, the medical need must be one that, if left
unattended, poses a substantial risk of serious harm.” Id. (quoting Mann, 588 F.3d at
1307).

NaphCare Defendants seek dismissal of the claims against Nurse Zeitz, Medical
Assistant Kent-Stevens, Nurse Lopez, and Nurse Thompson for failure to state a
claim. Docs. 50, 74. These Defendants submit that Plaintiff’s allegations, at best, rise
to the level of medical negligence and are insufficient to allege a claim of deliberate
indifference. The Court disagrees. In the Amended Complaint, Plaintiff alleges facts

plausibly suggesting that Nurse Zeitz, Nurse Lopez, Nurse Thompson, and Medical
Assistant Kent-Stevens acted with deliberate indifference as to Cantrell’s serious
medical needs.
As to all four health care practitioners, Plaintiff alleges they knew that Cantrell
was in a medical emergency and that he needed certain laboratory and/or diagnostic

evaluations to prevent a worsening of his condition but failed to act. Doc. 43 ¶¶ 233–
234 (Zeitz); 266–267 (Kent-Stevens); 299–300 (Lopez); 332–333 (Thompson). They
knew that Cantrell was in a grave condition and needed to be evaluated, monitored,
and followed up by a physician. Id. ¶¶ 235, 238 (Zeitz); 268, 271 (Kent-Stevens); 301,
304 (Lopez); 334, 337 (Thompson). They knew that Cantrell needed emergency,
ambulance and/or urgent care to an outside facility beyond the Jail. Id. ¶¶ 236 (Zeitz);
269 (Kent-Stevens); 302 (Lopez); 335 (Thompson). They knew that Cantrell needed
to be monitored and not remain in an overcrowded infirmary cell. Id. ¶¶ 237 (Zeitz);

270 (Kent-Stevens); 303 (Lopez); 336 (Thompson).
Despite knowing that NaphCare and the MCSO did not maintain the
equipment and adequate staff to render the necessary care to Cantrell who suffered
from difficulty breathing, extreme critical vital signs, which was indicative of infection
or sepsis, Nurse Zeitz did not call for emergency services or call the facility medical

director (id. ¶ 239), nor did MA Kent-Stevens (id. ¶ 272); Nurse Lopez (id. ¶ 305); or
Nurse Thompson (id. ¶ 338). Plaintiff alleges that these Defendants had actual or
constructive knowledge of NaphCare’s longstanding and widespread practice of failing
to transport pretrial detainees to outside emergent care facilities such as urgent care,

emergency rooms, and hospitals. Id. ¶¶ 225–228 (Zeitz); 258–261, (Kent-Stevens);
291–294 (Lopez); 324–327 (Thompson). Plaintiff also alleges that these Defendants
were indifferent to Cantrell’s medical needs in failing to do the following: diagnose,
render adequate treatment, refer to a doctor, order a follow-up assessment, run
diagnostic testing, activate EMS, activate 911, request ambulatory services, arrange

specialty care, or transport to an urgent care, emergency room and/or hospital. Id. ¶¶
240 (Zeitz); 273 (Kent-Stevens); 306 (Lopez); 339 (Thompson). Plaintiff alleges that
the deliberate indifference of these Defendants caused Cantrell’s death. Id. ¶¶ 241, 242
(Zeitz); 274, 275 (Kent-Stevens); 307, 308 (Lopez); 340, 341 (Thompson). Accepting
the factual allegations as true, Plaintiff adequately alleges facts that these Defendants
were deliberately indifferent to the serious medical needs of Cantrell, and thus she
states claims under Section 1983 against Nurse Zeitz, Medical Assistant Kent-Stevens,
Nurse Lopez, and Nurse Thompson in Counts IV through VII of Plaintiff’s Amended

Complaint.
C. Dr. Perez
In Count VIII of the Amended Complaint, Plaintiff sues Dr. Perez under
Section 1983 for failure to treat Cantrell. Doc. 43 ¶¶ 345–374. Plaintiff alleges that

Dr. Perez violated Cantrell’s Constitutional rights because she acted with deliberate
indifference by failing to provide adequate or timely treatment to Cantrell. Id. Dr.
Perez was the medical director for the Jail at the time Cantrell was a pretrial detainee.
Doc. 43 ¶ 354. Dr. Perez was a superior to the NaphCare nurses and medical assistants
of the Jail, and through this position was subjectively aware of Cantrell’s serious

medical needs from admission to death. Id. ¶¶ 368, 369. Plaintiff alleges that Dr. Perez
was deliberately indifferent to Cantrell’s needs in failing to diagnose, failing to render
adequate treatment, failing to timely render adequate treatment, failing to timely refer
to another doctor, failing to timely run diagnostic testing, failing to timely activate 911,
failing to timely request ambulatory services, failing to timely arrange specialty care,

failing to timely arrange transport to an urgent care, failing to timely arrange transport
to an emergency room, and/or failing to timely transport to a hospital. Id. ¶ 370.
Plaintiff alleges that Dr. Perez’s deliberate indifference caused Cantrell’s death. Id. ¶
371. Plaintiff adequately alleges a claim of deliberate indifference based on a delay in
treatment and/or failure to treat.
D. Punitive Damages
Sheriff Wells and the County move to dismiss or strike the Plaintiff’s claims for

punitive damages against them. Doc. 51 at 12; Doc. 66 at 11. Plaintiff does not object.
(Doc. 61 at 3; Doc. 75 at 5). The Court agrees that punitive damages are not
recoverable against these Defendants, and the Plaintiff’s claim for punitive damages
against Sheriff Wells and the County are appropriately stricken. See City of Newport v.
Fact Concerts, Inc., 453 U.S. 247, 260 (1981) (punitive damages not allowed against a

municipality in Section 1983 action unless expressly authorized by statute).
Accordingly, it is
ORDERED:
1. NaphCare Defendants’ Motion to Dismiss (Doc. 50) is denied.
2. Sheriff Rick Wells’ Motion to Dismiss (Doc. 51) is granted to the extent

that Plaintiff’s claim for punitive damages against Sheriff Wells is stricken. In all other
respects, Sheriff Wells’ Motion to Dismiss (Doc. 51) is denied.
3. Defendant Manatee County’s Motion to Dismiss (Doc. 66) is granted to
the extent that Plaintiff’s claim for punitive damages against Manatee County is
stricken. In all other respects, Manatee County’s Motion to Dismiss (Doc. 66) is

denied.
4. Defendant Roy Thompson’s Motion to Dismiss (Doc. 74) is denied.
5. Within fourteen (14) days of the date of this Order, Defendants shall
answer Plaintiff’s Amended Complaint.
DONE AND ORDERED in Tampa, Florida on June 27, 2024.

Chakene Charts Mo TL ol yell
Charlene Edwards Honeywell
United States District Judge

Copies to:
Counsel of Record
Unrepresented Parties, if any

26

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10642235. Public record. Not legal advice.