Opinion
Case No. 8:02-CV-1527-T-27TGW
January 31, 2003
ORDER
BEFORE THE COURT is Defendants' Motion to Dismiss Plaintiffs Complaint (Dkt. 11). Upon consideration, the Court finds as follows.
Plaintiff did not respond to Defendants' Motion.
Summary of Claims
Patricia Constantino ("Plaintiff) has filed an eleven count Complaint against Steve Madden ("Madden"), Christopher LaFramboise ("LaFramboise") and the Pasco County Sheriff's Office (collectively the "Defendants"), relating to her allegedly improper involuntary seizure by the Defendants pursuant to the Florida Mental Health Act, § 394.451, et seq. ("Baker Act"). (Dkt. 2). Count I alleges a claim pursuant to 42 U.S.C. § 12131-12134 for violation of the American Disabilities Act of 1990 ("ADA"); Count II alleges a claim pursuant to 29 U.SC. § 794 for violation of the Rehabilitation Act of 1973 ("Rehab. Act"); Count III alleges a claim pursuant to 42 U.S.C. § 1983 for violation of the ADA; Count IV alleges a claim pursuant to 42 U.S.C. § 1983 for violation of the Rehab. Act; Count V alleges a claim pursuant to 42 U.S.C. § 1983 for unlawful seizure and denial of due process; Count VI alleges a claim for excessive use of force; Count VII alleges a claim for unlawful detainment or false imprisonment; Count VIII alleges a claim for negligence; Count IX alleges a claim for violation of Fla. Stat. § 394.459; Count X alleges a claim under 42 U.S.C. § 1983 for failure to train; and Count XI alleges a claim pursuant to 42 U.S.C. § 1983 for failure to supervise. Defendants move to dismiss all counts with the exception of Counts VI and VII (excessive force and wrongful detainment) against Defendant Pasco County Sheriff's Office and Count IX (violation of the Baker Act) against all Defendants.
Defendants contend the correct legal entity for suit is "Bob White, in his official capacity as Sheriff of Pasco County," but do not seek dismissal on this ground.
Defendants request that Plaintiff's claim for punitive damages be dismissed against the Sheriff's Office but do not seek dismissal of the entire claim.
Applicable Standard
A court should not grant a motion to dismiss "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957) (citations omitted); accord South Florida Water Management Dist. v. Montalvo, 84 F.3d 402, 406 (11th Cir. 1996). The court will accept as true all well-pleaded factual allegations and will view them in a light most favorable to the nonmoving party.Hishon v. King Spalding, 467 U.S. 69, 73 (1984). The threshold is "exceedingly low" for a complaint to survive a motion to dismiss for failure to state a claim. Ancata v. Prison Health Services. Inc., 769 F.2d 700, 703 (11th Cir. 1985). Regardless of the alleged facts, however, a court may dismiss a complaint on a dispositive issue of law.See Marshall County Bd. of Educ. v. Marshall County Gas Dist., 992 F.2d 1171, 1174 (11th Cir. 1993).
Discussion
1. Counts I, II, III, and IV (ADA and Rehab. Act violations)
To state a claim under the Rehab. Act a plaintiff must demonstrate that (1) she is a qualified individual with a disability; (2) she was denied the benefits of a program or activity of a public entity which received federal funds; and (3) was discriminated against based on her disability.See 29 U.S.C. § 794(a). Similarly, to state a claim under Title II of the ADA, a plaintiff must demonstrate that: (1) she is qualified individual with a disability; (2) she 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) such exclusion, denial of benefits, or discrimination was by reason of her disability. See Shotz v. Cates, 256 F.3d 1077, 1080 (11th Cir. 2001).
In support of her ADA and Rehab. Act claims, Plaintiff alleges that her `"chronic neck and arm pain" and "degenerative condition" substantially limited her "life activities." (Dkt. 2, ¶ 7(c)). She does not allege that a "major" life activity was limited by her condition. Neither does she specify what "life activities" were limited by her condition. This type of conclusory allegation regarding disability does not support a claim under the Rehab. Act or ADA. See Bearelly v. State, 15 Fla. L. Weekly Fed. D. 85, 2002 WL 400779 (M.D. Fla. 2002) (recognizing that the "`major life activity' relied upon by a person seeking redress under the ADA is critical" and dismissing claim where major life activity was not plead). Because Plaintiff fails to state a cause of action under the ADA or Rehab. Act, her claims for violation of these acts under section 1983 also fail. See Burton v. City of Belle Glade, 178 F.3d 1175, 1188 (11th Cir. 1999) (to prevail on a section 1983 claim, plaintiff must demonstrate that defendants deprived plaintiff of a right secured under the Constitution or federal law). Accordingly, Counts I, II, III, and IV are dismissed.
Specifically, Plaintiffs only allegation regarding disability provides: "At the time of the incident, the Plaintiff was disabled to the extent that she lived with chronic neck and arm pain and suffered from a degenerative condition which constituted physical impairments, substantially limiting one or more of her life activities." (Dkt. 2, ¶ 7(c)).
While Bearelly concerns a claim under the ADA, its holding is also applicable to Rehab. Act claims. See Gordon v. E.L. Hamm Associates, Inc., 100 F.3d 907, 913 (11th Cir. 1996). Moreover, even if Plaintiff's allegations concerning her alleged disability were sufficient, it is questionable at best whether Defendants alleged actions fall within the protections of the ADA or Rehab. Act, as Plaintiff does not allege that she was arrested because of her disability or due to actions related to her disability. See Rosen v. Montgomery County, 121 F.3d 154, 157-58 (4th Cir. 1997) (deaf arrestee failed to establish claims under ADA and Rehab. Act based on county's alleged failure to provide interpreter services for alcohol education programs);Patrice v. Murphy, 43 F. Supp.2d 116, 1160 (W.D. Wash. 1999) ("arrest is not the type of service, program, or activity from which a disabled person could be excluded or denied the benefits, although an ADA claim may exist where the claimant asserts that he has been arrested because of his disability"); Gorrell v. Delaware State Police, 1999 WL 1893142, *3 (D. Del. 1999) ("majority of courts have found the ADA inapplicable to claims wherein the plaintiff alleges that the police failed to reasonably accommodate his disability in the course of an investigation or arrest (for a crime unrelated to his disability)).
2. Count V (unlawful seizure/denial of due process) (A) Madden and LaFramboise
Madden and LaFramboise seek dismissal of Count V on the grounds of qualified immunity. The defense of qualified immunity protects government officials performing discretionary functions from suit in their individual capacities unless their conduct violates "clearly established statutory or constitutional rights of which a reasonable person would have known." Gonzalez v. Reno, 2003 WL 1481583, *3 (11th Cir. 2003) (citing Hope v. Pelzer, 536 U.S. 730, 122 S.Ct. 2508, 2515, 153 L.Ed. 266 (2002)). "The purpose of this immunity is to allow government officials to carry out their discretionary duties without the fear of personal liability or harassing litigation, protection from suit all but the plainly incompetent or one who is knowingly violating the federal law."Id (citing Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002).
"Because qualified immunity is `an entitlement not to stand trial or face the other burdens of litigation/questions of qualified immunity must be resolved `at the earliest possible stage in litigation.'" Id (citing Hunter v. Bryant, 502 U.S. 224, 227, 112 S.Ct. 534, 536, 116 L.Ed.2d 589 (1991) (per curiam). It is appropriate to grant the defense of qualified immunity at the motion to dismiss stage if the complaint "fails to allege the violation of a clearly established constitutional right." Id. (citations omitted). To receive qualified immunity, the government official must first prove that he was acting within his discretionary authority. Id. (citations omitted). Once the defendants have established that they were acting within their discretionary authority, the burden shifts to the plaintiff to show that qualified immunity is not appropriate. Id
In the instant case, it is undisputed that Madden and LaFramboise were acting within their discretionary authority. (Dkt. 2, ¶ 28). Within the Complaint, Plaintiff does not allege that their actions were in violation of a clearly established constitutional right and by failing to respond to Defendants* motion to dismiss Plaintiff has failed to establish that qualified immunity is inappropriate. Accordingly, Count V as to Madden and LaFramboise is dismissed.
(B) Pasco County Sheriff's Office
"The Supreme Court has placed strict limitations on municipal liability under section 1983." Gold v. City of Miami, 151 F.3d 1346, 1350 (11th Cir. 1998). A municipality may be held liable under section 1983 if the plaintiff shows that a "custom" or "policy" of the municipality was the "moving force" behind the constitutional deprivation. Sewell v. Town of Lake Hamilton, 117 F.3d 488, 489 (11th Cir. 1997) (citing Monell v. Dept. of Social Svcs. of the City of New York, 436 U.S. 658 (1978)). "A policy is a decision that is officially adopted by the municipality, or created by an official of such rank that he or she could be said to be acting on behalf of the municipality." Sewell 117 F.3d at 489 (citations Brown v. City of Fort Lauderdale. 923 F.2d 1474, 1479(11th Cir. 1991)). "A custom is a practice that is so settled and permanent that it takes on the force of law." Id
Here, Plaintiff alleges that "the procedures used for taking the Plaintiff into custody and subsequently involuntarily examining her . . . pursuant to the provisions of the Baker Act, Fla. Stat. § 394.463, amount to a wrongful seizure of the Plaintiff." (Dkt. 2, ¶ 27). She further alleges that Madden and LaFramboise, "were acting under the authority of the Defendant, Pasco County Sheriffs Office" when they used the Baker Act's involuntary examination procedure in order to "facilitate further wrongful police conduct." (Dkt. 2, ¶ 28). These allegations do not allege an "official policy" which allegedly caused Plaintiff's injury. Accordingly, Defendants' motion to dismiss Count V against the Sheriff's Office is granted.
3. Counts VI and VII — (Excessive Use of Force and Unlawful Detainment)
(A) Madden and LaFramboise
Pursuant to Fla. Stat. § 768.28(9), "[n]o officer, employee, or agent of the state . . . shall be held personally liable in tort or named a 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 . . . 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 right, safety or property." Plaintiff does not allege that Madden or LaFramboise acted outside the scope of their employment, in bad faith, with malice, or that they exhibited wanton and willful disregard of human rights, safety or property.
Accordingly, Counts VI and VII are dismissed as to Madden and LaFramboise.
(B) Pasco County Sheriff's Office
Pursuant to Fla. Stat. § 768.28(5), punitive damages are not permitted against the state and its agencies for tort claims. Accordingly, Plaintiffs claim for punitive damages against the Pasco County Sheriff's Office in Counts VI and VII is dismissed.
4. Count VIII (Negligence)
In Count VIII, Plaintiff appears to assert a state law claim for negligence based upon the Defendants' alleged failure to implement the provisions of the ADA. (Dkt. 2, ¶¶ 41, 43, 44). As explained in section one supra, Plaintiff has not sufficiently plead facts establishing that she is "disabled" under the ADA. Plaintiff fails, therefore, to state a cause of action under the ADA and any action based upon the Defendants' failure to implement the ADA'S policies and procedures must fail. See Manley v. Gwinnett Place Assocs., L.P., 454 S.E.2d 577 (1995), overruled on other grounds. Flournoy v. Hospital Auth., 504 S.E.2d 198 (1998) (dismissing negligence claim because non-disabled plaintiff was not in class of persons for whose benefit the ADA was enacted). Accordingly, Count VIII is dismissed.
5. Count X and XI (Failure to Train and Failure to Supervise)
As discussed in section one supra, Plaintiff fails to state a cause of action under the ADA. Therefore, she may not bring a claim under section 1983 for violation of that Act. Moreover, Plaintiff may not maintain a section 1983 claim based on a violation of Florida's Baker Act, as the Baker Act is not a federal constitution or law of the United States. See Knight v. Jacobson, 300 F.3d 1272, 1276 (11 * Cir. 2002) ("[s]ection 1983 does not create remedy for every wrong committed under color of state law, but only for those that deprive a plaintiff of a federal right."). Accordingly, Count X and XI are dismissed.
Accordingly, it is ORDERED AND ADJUDGED that
1. Defendants Madden and LaFramboise's Motion to Dismiss Counts I, III, IV, V, VI, and VII is GRANTED.
2. Defendant Pasco County Sheriff's Office's Motion to Dismiss Counts I, II, III, IV, V, VIII, X, and XI is GRANTED. Pasco County Sheriff's Office's Motion to Dismiss Plaintiff's claim for punitive damages in Counts VI and VII is alsoGRANTED.
DONE AND ORDERED in chambers