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denying summary judgment after finding that Armor had not established entitlement to sovereign immunity based on contract between Sheriff's Office and Armor
Summary of this case from Hannah v. Armor Corr. Health Servs.Opinion
CASE NO. 18-61798-CIV-ALTMAN/Hunt
2020-04-07
Rosemarie OBREMSKI, Plaintiff, v. ARMOR CORRECTIONAL HEALTH SERVICES, INC., et al., Defendants.
Christina Marie Currie, Greg McNeill Lauer, Lauer & Currie, P.A., Fort Lauderdale, FL, for Plaintiff. Christopher Norman Gonsalves, Quintairos, Prieto, Wood, Boyer, P.A., Eric J. Netcher, Walker, Revels, Greninger & Netcher, PLLC, Patricia Maria Rego Chapman, S. Renee Stephens Lundy, Dean, Ringers, Morgan & Lawton, P.A., Vanessa Alexandra Braga, Vanessa Braga, Orlando, FL, for Defendants Armor Correctional Health Services, Inc., Stanley Frankowitz D.O., Marva Parke, LPN, Tracy Spence, R.N, Kumar Mowatt, R.N, Kathleen Mills, R.N, Astor Kerr, R.N, Maureen Dorcely, R.N, Jerry Burgess, Jr., MD. Eric J. Netcher, Walker, Revels, Greninger & Netcher, PLLC, Patricia Maria Rego Chapman, S. Renee Stephens Lundy, Dean, Ringers, Morgan & Lawton, P.A., Vanessa Alexandra Braga, Vanessa Braga, Orlando, FL, for Defendant Scott Israel. Christopher Norman Gonsalves, Quintairos, Prieto, Wood, Boyer, P.A., S. Renee Stephens Lundy, Dean Ringers Morgan & Lawton, Eric J. Netcher, Walker, Revels, Greninger & Netcher, PLLC, Vanessa Alexandra Braga, Vanessa Braga, Orlando, FL, for Defendant Jeri Monical, R.N.
Christina Marie Currie, Greg McNeill Lauer, Lauer & Currie, P.A., Fort Lauderdale, FL, for Plaintiff.
Christopher Norman Gonsalves, Quintairos, Prieto, Wood, Boyer, P.A., Eric J. Netcher, Walker, Revels, Greninger & Netcher, PLLC, Patricia Maria Rego Chapman, S. Renee Stephens Lundy, Dean, Ringers, Morgan & Lawton, P.A., Vanessa Alexandra Braga, Vanessa Braga, Orlando, FL, for Defendants Armor Correctional Health Services, Inc., Stanley Frankowitz D.O., Marva Parke, LPN, Tracy Spence, R.N, Kumar Mowatt, R.N, Kathleen Mills, R.N, Astor Kerr, R.N, Maureen Dorcely, R.N, Jerry Burgess, Jr., MD.
Eric J. Netcher, Walker, Revels, Greninger & Netcher, PLLC, Patricia Maria Rego Chapman, S. Renee Stephens Lundy, Dean, Ringers, Morgan & Lawton, P.A., Vanessa Alexandra Braga, Vanessa Braga, Orlando, FL, for Defendant Scott Israel.
Christopher Norman Gonsalves, Quintairos, Prieto, Wood, Boyer, P.A., S. Renee Stephens Lundy, Dean Ringers Morgan & Lawton, Eric J. Netcher, Walker, Revels, Greninger & Netcher, PLLC, Vanessa Alexandra Braga, Vanessa Braga, Orlando, FL, for Defendant Jeri Monical, R.N.
Before the Hon. Roy K. Altman:
Editor's Note: Ordered unsealed on Aug. 7, 2020.
ROY K. ALTMAN, UNITED STATES DISTRICT JUDGE Stephen Obremski was very ill when he was arrested for driving with a suspended license. His condition worsened precipitously until, thirteen days after his initial detention, he passed away. His widow sued (almost) every doctor and nurse who attended to him—along with the entities they worked for. After protracted litigation, the parties filed their motions for summary judgment. This Order follows.
THE POSTURE
The Plaintiff, Rosemary Obremski, filed a Motion for Partial Summary Judgment ("Pl.’s Mot.") [ECF No. 52], and the Defendants responded ("Defs.’ Response") [ECF No. 83]. The Defendants likewise filed a Motion for Summary Judgment ("Defs.’ Motion") [ECF No. 115], the Plaintiff responded ("Pl.’s Resp.") [ECF No. 118], and the Defendants replied ("Defs.’ Reply") [ECF No. 122]. On November 1, 2019, the Court held a hearing—at which the parties presented their oral arguments. For the reasons that follow, the Court hereby GRANTS in part and DENIES in part the Plaintiff's Motion [ECF No. 52] and GRANTS in part and DENIES in part the Defendants’ Motion [ECF No. 115].
THE FACTS
The Plaintiff filed this lawsuit as the personal representative of the Estate of her deceased husband, Stephen Obremski. On March 22, 2016, Mr. Obremski was arrested for driving with a suspended license and for violating a traffic control device. See Police Report [ECF No. 53-1] at 1–2. Later that day, when officers of the Coral Springs Police Department saw him shaking in his holding cell, see Armor Medical Chart [ECF No. 58-1] at 679, 684–85, they brought him to a local emergency room, where he was diagnosed with a possible seizure and, his condition stabilized, promptly discharged, id. at 686–91.
The officers then transferred Mr. Obremski, a 54-year-old male, to the Broward County Main Jail. See id. at 3–8. Mr. Obremski had a history of prior health difficulties: he suffered from hepatitis-C ; he was taking fentanyl and other medications for pain management; and his left leg had been amputated below the knee. See id. at 3–4. But, aside from some sores on his arms—the result of an allergic reaction—Mr. Obremski's intake screening revealed no unusual symptoms or behavior. See id. at 3–8.
Broward County, through its Sheriff, Defendant Scott J. Israel (the "Sheriff"), had contracted for Defendant Armor Correctional Health Services, Inc. ("Armor") to provide healthcare services to inmates at the Main Jail. See Agreement Between the Broward Sheriff's Office and Armor Correctional Health Services, Inc. (the "Contract") [ECF No. 1-3] at 1–2.
At 12:40 AM on March 23, 2016, Mr. Obremski was sent to the infirmary, where the medical staff could better observe him as he underwent the sometimes-tortuous process of opiate detoxification. Id. at 16, 53. At 12:55 AM, Nurse Cynthia McDonald reported that he appeared comfortable, relaxed, and cooperative. See Obremski Medical Records [ECF No. 85-1] at 11. Doctor Stanley Frankowitz assessed Mr. Obremski at 1:00 PM and likewise found him polite and oriented to person, time, and place. Id. at 12.
On March 24, at 12:55 AM, Nurse Jeri Monical noted that Mr. Obremski had reported anxiety and pain in his neck and back—with a severity level of "7 or 8." Id. at 13. Monical directed him to increase his fluid intake. Id. At 1:00 PM, Dr. Frankowitz wrote that Mr. Obremski's blood pressure had increased and that he was "very confused" and "hallucinating." Id. Dr. Frankowitz ordered Ativan to alleviate his drug-and-alcohol withdrawal. Id. at 36. At 4:20 PM, Nurse Kumar Mowatt evaluated Mr. Obremski, who was disoriented but claimed to be alright. Id. at 14. At 9:00 PM, Nurse Lucienne Alexandre recorded that Mr. Obremski rejected his dose of Ativan, continued to have tremors, and "randomly talk[ed] about things." Id.
On March 25, at 12:30 AM, Nurse McDonald observed that Mr. Obremski was restless, agitated, experiencing tremors, and mumbling to himself. Id. At 7:55 AM, a deputy alerted the medical staff that Mr. Obremski was found face-down, suffering from a seizure on the floor of his cell; his breathing was labored; and there were blood stains on the floor, on his face, and on his hands. Id. at 41. Mr. Obremski was washed, and Dr. Frankowitz ordered two doses of Ativan to alleviate the seizures: one at 8:27 AM and a second at 8:45 AM. Id. at 15, 41–42. With this treatment, Mr. Obremski's seizures stopped at around 9:00 AM. Id. at 15.
At 10:15 AM, Nurse Tracy Spence reported a worsening of Mr. Obremski's withdrawal symptoms. See id. at 48. Dr. Frankowitz returned at 11:00 AM and noted that Mr. Obremski was resting comfortably and that his breathing had returned to normal. Id. at 15. Dr. Frankowitz ordered additional Ativan—along with Lactulose to treat Mr. Obremski's end-stage liver disease. See id. ; see also Armor Medical Chart at 50. By 4:15 PM, however, when Nurse Astor Kerr entered his room, Mr. Obremski was again on the floor, seized with tremors and unable to follow commands. See Obremski Medical Records at 14. At the same time, Nurse Kerr did report an overall improvement in Mr. Obremski's withdrawal symptoms. Id. at 48.
On March 26, at 12:50 AM, Nurse McDonald heard Mr. Obremski, who was on the floor, crying for "Help ...!" Id. at 16. Mr. Obremski was restless, disoriented, suffering from tremors, and mumbling to himself. Id. at 16, 48. At 11:00 AM, Nurse Maureen Dorcely found Mr. Obremski lying face-down on the floor. Id. at 16. When she tried to speak to him, he was nonverbal. Id. And, although his vital signs were stable, she did notice that he was experiencing "worsening detox symptoms." Id. Nurse Kerr evaluated Mr. Obremski at 4:30 PM and found him, again, lying face-down on the floor, disoriented, and suffering "continuous tremors"—though his overall withdrawal symptoms had improved somewhat from the day before. See id. at 16, 48.
On March 27, at 12:25 AM, Nurse Kathleen Mills found Mr. Obremski in a prone position on the floor, suffering from tremors, and generally experiencing more severe withdrawal symptoms than before. Id. at 17, 48. Nurse Dorcely returned at 12:00 PM and recorded that Mr. Obremski "appear[ed] to be doing slightly better today as evidenced by holding his sandwich, feeding himself," and "holding a cup for brief periods on his own." Id. at 17. At 4:15 PM, Nurse Kerr noted that Mr. Obremski was awake and alert, but incoherent and lying on the floor with "visible tremors and confusion." Id.
On March 28, at 12:30 AM, Nurse McDonald watched Mr. Obremski experience some tremors and agitation, and she reported that his withdrawal symptoms appeared generally unchanged from the day before. Id. at 18. At 2:00 PM, Dr. Frankowitz wrote that Mr. Obremski was "less lethargic" and "now able to sit up." Id. Nurse Mowatt evaluated Mr. Obremski at 4:10 PM, by which time his withdrawal symptoms had significantly improved—though he still reported disorientation and appeared to be experiencing tremors of moderate severity. Id. at 19, 49. Nurse Mowatt also noticed that Mr. Obremski had bruising around his right eye, his buttocks, and his legs. Id. at 19.
On March 29, at 12:45 AM, Nurse McDonald wrote that Mr. Obremski was experiencing more severe tremors, increased restlessness, and incoherence. Id. Nurse Spence noted similar symptoms at 10:15 AM. Id. at 49. At 11:00 AM, Dr. Frankowitz recorded that, although Mr. Obremski had no tremors, the Ativan was making him lethargic—so Dr. Frankowitz decreased his dosage. Id. at 19. At 4:15 PM, Nurse Mowatt was pleased to see that Mr. Obremski's overall withdrawal symptoms had improved dramatically—though he still had visible tremors and disorientation. Id. at 20, 49. Nurse Mowatt also reported that Mr. Obremski had "multiple discoloration[s]" on his legs, buttocks, arm, and eyelid. Id. at 20. At 8:50 PM, after noticing that Mr. Obremski had defecated on himself, Nurse Mowatt washed him with soap and water. Id.
On March 30 at 12:35 AM, Nurse McDonald evaluated Mr. Obremski and found his overall withdrawal symptoms largely unchanged. Id. at 49. Mr. Obremski was awake and alert, his breathing was "even and unlabored," and he drank a cup of water. Id. at 20. But, at 10:40 AM, Nurse Spence concluded that Mr. Obremski's withdrawal symptoms had again deteriorated. Id. at 49. At 12:00 PM, Dr. Frankowitz reported that he was "dramatically more alert" and drank two glasses of water. Id. at 20. Dr. Frankowitz thus further decreased Mr. Obremski's Ativan dosage and ordered additional fluids. Id. ; see also Armor Medical Chart at 49. At 5:00 PM, Nurse Mowatt noted a slight improvement in Mr. Obremski's withdrawal symptoms but observed redness on his torso—as well as redness and swelling in his right knee, which was tender to the touch. See Obremski Medical Records at 21, 49. When Nurse Mowatt returned at 8:30 PM, Mr. Obremski had "semi-loose dark brown stool" on his torso—which the nursing staff cleaned off in the bath. Id. at 21.
On March 31, at 12:55 AM, Nurse Monical noted further improvements in Mr. Obremski's withdrawal symptoms. Id. at 49. But, at 1:00 PM, Dr. Frankowitz noticed cellulitis, a bacterial skin infection, on his right knee—so he ordered wound care, Bactrim DS to treat the cellulitis, and increased fluids. Id. at 21; see also Armor Medical Chart at 48. Nurse Kerr assessed Mr. Obremski at 4:15 PM and recorded additional improvement in his withdrawal symptoms—albeit with some tremors and "mostly incoherent" speech. See Obremski Medical Records at 22, 49. At 9:45 PM, Nurse Kerr reported that Mr. Obremski's diaper was wet and that he refused food. Id. at 22.
On April 1, at 12:55 AM, Nurse McDonald wrote that Mr. Obremski drank three cups of water with "no acute distress." Id. at 22, 49. She also noted, at 3:30 AM, that Mr. Obremski ate his breakfast, drank orange juice, and consumed a bottle of Resource—a nutritional supplement. Id. at 23. At 3:00 PM, Dr. Frankowitz observed that Mr. Obremski was "disheveled," but responsive, and that he drank two Resources and three full glasses of water. Id. At around this time, Dr. Frankowitz received Mr. Obremski's lab results, which revealed that Mr. Obremski was increasingly dehydrated, that his blood cell count had more than doubled, that his hemoglobin was down, and that his platelet count was low. See id. at 53; see also Armor Medical Chart at 58–59; cf. Obremski Medical Records at 53–54. At 4:00 PM, Nurse Kerr recorded that, while Mr. Obremski had anxiety and some tremors, he was able to express his feelings and drink some water. See Obremski Medical Records at 24. Mr. Obremski downed some additional fluids at 9:50 PM. Id.
On April 2, at 12:45 AM, Nurse McDonald observed that Mr. Obremski was awake and alert—though he apparently did not know why he was in jail. Id. Nurse Spence evaluated Mr. Obremski at 11:30 AM and found him lying on the floor, awake and alert, "with some orientation to people." Id. at 25. He ate his entire lunch and drank Resource, but his right knee was still swollen and he complained of elbow pain. Id. At 1:00 PM, Nurse Spence recorded that Mr. Obremski's withdrawal symptoms—particularly his disorientation—had deteriorated slightly. See id. at 50. Nurse Spence reported Mr. Obremski's knee and elbow pain to Dr. Frankowitz, who ordered an x-ray. See id. at 39. Nurse Marva Parke assessed Mr. Obremski at 4:00 PM and found him sitting up on the floor and moaning. Id. at 25. She noticed that Mr. Obremski had skin blotches and swelling on his left arm, pain in his knee and elbow, and redness on his right small toe. Id. But, at 6:20 PM, she noted that Mr. Obremski ate his whole meal and drank orange juice and water—which he consumed again at 9:35 PM. Id. at 26.
On April 3, at 12:45 AM, Mr. Obremski told Nurse Monical that he was "not too good." Id. He was cooperative and drank a cup of water, but he was anxious and restless, he experienced tremors, and his left wrist was swollen. Id. Nurse Monical gave him some extra fluids at 4:10 AM. Id. At 8:15 AM, Nurse Spence reported that Mr. Obremski's breathing was "even and unlabored," and at 11:00 AM, she said that Mr. Obremski had his lunch, drank three cups of water, and consumed two Ensure drinks. Id. at 27. She changed his diaper, his uniform, and his bed linens at 12:00 PM. Id. Nevertheless, a 12:08 PM entry from an inmate log indicates that Mr. Obremski "was cleaned up and washed due to feces all over self and room." Obremski Inmate Log [ECF No. 85-14] at 1. Nurse Spence re-dressed Mr. Obremski's knee wound at 2:00 PM and recorded "even and unlabored" respiration at 2:55 PM. See Obremski Medical Records at 27. At 4:00 PM, Nurse Parke found him confused to the point of believing that he had been admitted to a hospital. Id. She noted swelling and blotchy red spots on his left arm, redness and swelling on his right wrist, and redness and mottled spots on his right hip. Id. At 5:20 PM, she reported that, with some help, he ate 90% of his dinner and drank some water. Id. at 28. She changed his diaper at 9:20 PM. Id.
On April 4, at 12:25 AM, Nurse McDonald observed redness, spots, and swelling on Mr. Obremski, who drank three cups of water. Id. Nurse McDonald also reported confusion—he was "only oriented to person"—and noted that he exhibited "generalized weakness." Id. He ate 95% of his breakfast and drank some fluids at 4:00 AM. Id. At 9:40 AM, Nurse Spence wrote that Mr. Obremski was suffering from tremors and remained disoriented. Id. at 50. Mr. Obremski received additional fluids at 10:20 AM—after which a technician tried (unsuccessfully) to take his x-ray. Id. at 29–30. At 12:34 PM, Doctor Jerry Burgess, Jr., ordered a dose of analgesics after recording that Mr. Obremski had jaundiced skin, exhibited disorientation, and suffered from elbow pain. Id. At 4:35 PM, according to Nurse Mowatt, Mr. Obremski suffered through some visible tremors, weakness in movement, and disorientation; his color had turned pale and jaundiced; swelling and redness had developed along his wrist and on his hip; his blood pressure sank to 96/54; and his right knee became so distended that it broke through the skin. Id. at 32; see also Mowatt Dep. [ECF No. 85-6] at 73–74. At this point, Nurse Mowatt told a still-unknown, on-call doctor about Mr. Obremski's deteriorating condition. See Obremski Medical Records at 32; see also Mowatt Dep. at 74–79. Although the doctor did not send Mr. Obremski to the hospital, he did order continued monitoring. See Obremski Medical Records at 32. Nurse Mowatt evaluated Mr. Obremski again at 8:40 PM, observed similar symptoms, and measured a still-lower blood pressure: 88/54. Id. This time, when Mowatt contacted the on-call doctor, he received authorization to send Mr. Obremski to the hospital. Id. At around 9:00 PM on the night of April 4, 2016, Mr. Obremski was taken from the Main Jail in a stretcher and loaded into an ambulance. Id.
When he arrived at Broward Health Imperial Point Hospital at 9:20 PM, his admitting diagnoses included upper gastrointestinal bleeding, hypovolemic shock, lactic acidosis, acute kidney injury, acute respiratory failure, and a history of end-stage liver disease—the last of these secondary to hepatitis-C and alcoholism. See Armor Medical Chart at 122. He also had a very high white blood cell count—probably due to sepsis. Id. at 123.
Mr. Obremski died on April 5, 2016, at 3:30 PM. Id. at 431. An autopsy concluded that Mr. Obremski "died of upper gastrointestinal hemorrhage with hepatic cirrhosis as a contributing factor. Postmortem examination showed blood in the stomach and the intestines, focally severe arteriosclerotic cardiovascular disease and hepatic cirrhosis." Id. at 448.
On August 2, 2018, the Plaintiff filed her Complaint against the Sheriff (in his official capacity), Armor, and the following Armor employees: Doctor Frankowitz, Doctor Burgess, and Nurses Monical, McDonald, Parke, Spence, Mowatt, Mills, Kerr, and Dorcely (collectively, the "Individual Defendants"). See Compl. [ECF No. 1]. Counts 1 through 12 of the Complaint assert claims against each Defendant under 42 U.S.C. § 1983, id. at 36–55; Count 13 and Counts 17 through 25 raise state-law negligence claims against each Individual Defendant; and Counts 14 through 16 assert state-law, vicarious liability claims against Armor and the Sheriff, id. at 56–79. The Plaintiff later voluntarily dismissed her claims against Nurses Monical (Counts 4 and 17) and McDonald (Counts 5 and 18). See [ECF Nos. 10, 71].
In her Motion [ECF No. 52], the Plaintiff asks for partial summary judgment on three discrete issues. First , she seeks summary judgment on the Defendants’ Seventh Affirmative Defense, in which the Defendants claim the sovereign-immunity protections of Fla. Stat. § 768.28. Pl.’s Mot. at 3–7; see Answer [ECF No. 14] at 20. Second , she moves for summary judgment on the Defendants’ Twelfth Affirmative Defense, where the Defendants aver that her claims are barred by the relevant statute of limitations. Pl.’s Mot. at 7–10; see Answer at 21. Third , she insists that the Court should resolve several factual questions in her favor—in particular: (1) whether, between March 23 and April 4, 2016, Mr. Obremski's drug-and-alcohol withdrawal constituted a "serious medical need"; (2) whether, during those thirteen days, the Individual Defendants were subjectively aware of Mr. Obremski's drug-and-alcohol withdrawal; (3) whether, between March 31 and April 4, 2016, the infections on Mr. Obremski's body qualified as a "serious medical need"; and (4) whether, during those five days, Dr. Frankowitz was subjectively aware of those infections. Pl.’s Mot. at 10–15.
The Defendants, for their part, seek summary judgment on four grounds. First , they ask the Court to enter judgment on the Plaintiff's § 1983 claims because, they say: (1) there is no evidence that the Individual Defendants were deliberately indifferent to Mr. Obremski's medical needs, Defs.’ Mot. at 3–25; and (2) neither Armor nor the Sheriff can be liable under § 1983 when no underlying constitutional violation occurred and no unconstitutional policy or custom existed, id. at 25–29. Second , they contend that they are entitled to sovereign immunity under Fla. Stat. § 768.28 ("the sovereign-immunity statute")—and that, as a result, (1) the Plaintiff's state-law claims fail for lack of notice; (2) the Plaintiff's damages are sharply delimited; and (3) the Individual Defendants are excused from all liability. Id. at 29–38. Third , the Defendants argue that no reasonable jury could find for the Plaintiff on the breach and causation elements of her state-law negligence claims. Id. at 38–45. Fourth , they claim that the Plaintiff is not entitled to punitive damages on any of her claims. Id. at 45–47.
In her Response, the Plaintiff "[chose] not to respond" to the Defendants’ Motion for Summary Judgment as to Nurses Parke, Mills, or Dorcely. Pl.’s Resp. [ECF No. 118] at 7. Although summary judgment cannot be granted by default, see Fed. R. Civ. P. 56(e) advisory committee's note to 2010 amendment, the Court's careful review of the record reveals absolutely no evidence from which a reasonable jury could conclude that these three nurses breached their duty of care to Mr. Obremski—let alone that either was deliberately indifferent to his medical needs in violation of the Fourteenth Amendment. Under Fed. R. Civ. P. 56(e)(3), the Court therefore GRANTS —without any opposition from the Plaintiff—summary judgment in favor of Nurses Parke, Mills, and Dorcely on Counts 6, 9, 11, 19, 22, and 24 of the Complaint.
THE LAW
Summary judgment is appropriate when there is "no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Celotex Corp. v. Catrett , 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ; FED. R. CIV. P. 56(a). In determining whether to grant summary judgment, the Court must consider "particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials." FED. R. CIV. P. 56(c). "By its very terms, this standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 247–48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (emphasis in original). An issue of fact is "material" if it might affect the outcome of the case under the governing law. Id. at 248, 106 S.Ct. 2505. A dispute about a material fact is "genuine" if the evidence could lead a reasonable factfinder to rule for the non-moving party. Id. At summary judgment, the moving party has the burden of proving the absence of a genuine issue of material fact, and all factual inferences are drawn in favor of the non-moving party. See, e.g. , Allen v. Tyson Foods Inc. , 121 F.3d 642, 646 (11th Cir. 1997). Once the moving party satisfies its initial burden, the burden shifts to the non-moving party to come forward with evidence that a genuine issue of material fact precludes summary judgment. See Bailey v. Allgas, Inc. , 284 F.3d 1237, 1243 (11th Cir. 2002) ; FED. R. CIV. P. 56(e). "If reasonable minds could differ on the inferences arising from undisputed facts, then a court should deny summary judgment." Miranda v. B & B Cash Grocery Store, Inc. , 975 F.2d 1518, 1534 (11th Cir. 1992). Notably, assessments of credibility—no less than the weighing of evidence—are fact questions not susceptible of disposition at summary judgment. Strickland v. Norfolk S. Ry. Co. , 692 F.3d 1151, 1154 (11th Cir. 2012). The Court must analyze the record as a whole—and not just the evidence the parties have singled out for consideration. See Clinkscales v. Chevron U.S.A., Inc. , 831 F.2d 1565, 1570 (11th Cir. 1987). If there are any genuine issues of material fact, the Court must deny summary judgment and proceed to trial. Whelan v. Royal Caribbean Cruises Ltd. , No. 1:12-CV-22481, 2013 WL 5583970, at *2 (S.D. Fla. Aug. 14, 2013) (citing Envtl. Def. Fund v. Marsh , 651 F.2d 983, 991 (5th Cir. 1981) ).
Unless otherwise noted, emphasis has been added and internal citations, page numbers, and quotation marks have been omitted.
ANALYSIS
I. The 1983 Claims
Because Mr. Obremski was a pretrial detainee, the Plaintiff's § 1983 claims sound, not in the Eighth Amendment's protection against "cruel and unusual punishments," but rather in the Fourteenth Amendment's guarantee of due process. See Taylor v. Adams , 221 F.3d 1254, 1257 n.3 (11th Cir. 2000). "However, the applicable standard is the same, so decisional law involving prison inmates applies equally to cases involving arrestees or pretrial detainees." Cottrell v. Caldwell , 85 F.3d 1480, 1490 (11th Cir. 1996). Notably, the Eighth Amendment prohibits "deliberate indifference to serious medical needs of prisoners." Estelle v. Gamble , 429 U.S. 97, 104, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976) ; accord Farmer v. Brennan , 511 U.S. 825, 835, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994).
To prevail on a claim of inadequate medical treatment, a prisoner must satisfy an objective and a subjective requirement. The plaintiff must show an objectively serious deprivation of medical care by demonstrating (1) an objectively serious medical need that, if left unattended, poses a substantial risk of serious harm, and (2) that the prison official's response to that need was poor enough to constitute an unnecessary and wanton infliction of pain, and not merely accidental inadequacy, negligence in diagnosis or treatment, or even medical malpractice actionable under state law. A serious medical need is one that has been diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person would easily recognize the necessity for a doctor's attention.
Bingham v. Thomas , 654 F.3d 1171, 1175–76 (11th Cir. 2011) (per curiam) (cleaned up).
"A prisoner must also show a prison official's subjective intent to punish by demonstrating that the official acted with deliberate indifference." Id. at 1176. "A plaintiff claiming deliberate indifference to a serious medical need must prove: (1) subjective knowledge of a risk of serious harm; (2) disregard of that risk; (3) by conduct that is more than mere negligence." Melton v. Abston , 841 F.3d 1207, 1223 (11th Cir. 2016) (per curiam). "Conduct that is more than mere negligence includes: (1) grossly inadequate care; (2) a decision to take an easier but less efficacious course of treatment; and (3) medical care that is so cursory as to amount to no treatment at all." Bingham , 654 F.3d at 1176. "A defendant who unreasonably fails to respond or refuses to treat an inmate's need for medical care or one who delays necessary treatment without explanation or for non-medical reasons may also exhibit deliberate indifference." Melton , 841 F.3d at 1223.
The Eleventh Circuit has sometimes referred to this third prong as requiring "proof of more than gross negligence." See, e.g. , Townsend v. Jefferson Cty. , 601 F.3d 1152, 1158 (11th Cir. 2010). More recently, however, Melton criticized this aspect of Townsend and relied instead on the "more than mere negligence" language of McElligott v. Foley , 182 F.3d 1248, 1255 (11th Cir. 1999) —which, Melton concluded, was binding as "the earliest Eleventh Circuit case after Farmer to directly address the degree of culpability required under Farmer ." Melton , 841 F.3d at 1223 n.2 ; see also Cottrell , 85 F.3d at 1490 (Farmer "makes it clear that ‘gross negligence’ is not part of the standard for judging custody mistreatment claims under the Due Process Clause.").
A. The Doctors
Dr. Frankowitz examined Mr. Obremski on several occasions and thus witnessed his progressive deterioration firsthand. Construing the facts in "the light most favorable to" the Plaintiff, there is enough evidence in the record for a reasonable jury to conclude that a physician of Dr. Frankowitz's training and experience displayed "more than mere negligence" by failing to send Mr. Obremski—at any point during his thirteen-day detention—to the hospital. To take but one example: According to the Plaintiff's expert, as early as April 1, 2016, Mr. Obremski's lab results showed that he was dangerously dehydrated, suffering from a severe infection, and experiencing a precipitous loss of internal blood whose origin was not then known. See Cohen Rep. [ECF No. 85-2] at 9. Had Mr. Obremski been taken to the hospital at any time before April 4, 2016, Dr. Cohen has attested, his life could have been saved. See Supp. Cohen Aff. [ECF No. 85-41] at 1. In this regard, Dr. Cohen described the lack of care Mr. Obremski received as "extremely disturbing" and concluded that:
Rather than receiving necessary hospital medical care, which would have closely monitored Mr. Obremski's metabolic status, would have been aware of the threat that low potassium posed and would have been monitoring and treating for possible gastrointestinal bleeding, Mr. Obremski spent thirteen days in jail, where he predictably deteriorated rapidly, and dramatically. The lack of necessary care that he received is extremely disturbing and resulted in his preventable death.
Cohen Rep. at 13. Dr. Frankowitz's failure to send Mr. Obremski to a hospital despite the (arguably) unambiguous warning signs he was exhibiting may have resulted from "mere negligence" (or no negligence), to be sure. But a jury could reasonably—and just as easily—conclude that this misfeasance, such as it is, evinced something more. Wherever that line is, it is a line that, on these facts, a jury as fact-finder—and not this Court as arbiter of legal questions—must draw after a meticulous inspection of all the evidence. Dr. Frankowitz's Motion for Summary Judgment on Count 3 is therefore DENIED .
The case of Dr. Burgess presents a closer call. He admittedly met with Mr. Obremski only once, on April 4, 2016. At the same time, Dr. Burgess was the last doctor to see Mr. Obremski—just a few hours before he was transferred to the hospital and at a time when his condition was undeniably poor. But, rather than send Mr. Obremski to the hospital—something he never did—Dr. Burgess opted to prescribe a regimen of analgesics. See Obremski Medical Records at 30. And yet, only a few hours later, Nurse Mowatt was so alarmed by Mr. Obremski's appearance that he twice inquired about transferring him to the emergency room.
Construing all facts, and drawing all reasonable inferences, in the Plaintiff's favor, a reasonable jury could find that an experienced physician's decision to prescribe a dying man some analgesics, rather than send him to the hospital, constituted "grossly inadequate care." Bingham , 654 F.3d at 1176. Dr. Burgess’ Motion for Summary Judgment on Count 12 is thus likewise DENIED .
B. The Nurses
On the other hand, there is nothing in the record to suggest that the conduct of the three remaining nurses—Spence, Mowatt, and Kerr—constituted anything worse than mere negligence. The Plaintiff's own expert, in fact—Deborah Shelton—conceded at her deposition that these nurses were not indifferent to Mr. Obremski's medical needs. The critical exchange went like this:
The Court commends Ms. Shelton on her candor—which, unfortunately, we see less and less of these days.
Q: You're not suggesting, with regard to any of the nurses that we've discussed, that they consciously disregarded a risk to Mr. Obremski; are you?
A: Consciously like intending to ---
Q: Sure.
A: Can I qualify that statement before I answer?
Q: Absolutely.
A: Okay. So I would say no, I don't think they were like mean-spirited about it. But I'm concerned about what I perceive as sort of a sloppiness. The poor documentation, the poor follow-through.
...
Q: Sure. My question is about the specific nurses. You don't believe that any of these nurses were indifferent to the needs of Mr. Obremski; do you?
A: The only person I would question about their mental space if we can call it that, is Nurse Wilson.
Q: So with regard to Nurse Mills, Nurse Mowatt, Nurse Kerr, Nurse Parke, Nurse Dorcely and Nurse Spence, you're not challenging their – you're not suggesting that they were indifference [sic] to Mr. Obremski?
A: I don't think so. I think they just were sloppy in care.
Shelton Dep. [ECF No. 57-6] at 71–72. The Nurses kept continuous watch over Mr. Obremski for thirteen days: They fed him; bathed him; washed him of his feces; when his condition worsened to the point of concern, they asked for permission to send him to the hospital; and, when they were first refused, they asked a second time—a request that, finally, was granted. Their work may have been "sloppy" here and there—though on this, as on all other factual disputes, the Court expresses no opinion. But, as the Plaintiff's own expert has admitted, it was nowhere near deliberately indifferent.
The Nurses’ Motion for Summary Judgment on Counts 7, 8, and 10 is therefore GRANTED .
C. Armor and the Sheriff
"[A] municipality can be found liable under § 1983 only where the municipality itself causes the constitutional violation at issue. Respondeat superior or vicarious liability will not attach under § 1983." City of Canton, Ohio v. Harris , 489 U.S. 378, 385, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989) (citing Monell v. New York City Dep't of Soc. Servs. , 436 U.S. 658, 694–95, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) ). "Thus, [the] first inquiry in any case alleging municipal liability under § 1983 is the question whether there is a direct causal link between a municipal policy or custom and the alleged constitutional deprivation." Id.
The Sheriff and Armor raise two Monell arguments. First , they contend that there can be no municipal liability under § 1983 if no Individual Defendant has committed a constitutional violation in the first place. See Defs.’ Mot. at 25–27. This first argument thus assumes that the Court has granted the Individual Defendants’ Motion for Summary Judgment—at least as to the constitutional claims. As we have seen, however, genuine disputes of material fact preclude summary judgment on the Plaintiff's § 1983 claims against the Doctors, see supra Section I.A.—thus mooting this first argument.
Second , the Defendants say that the Plaintiff has adduced no evidence of an unconstitutional policy or custom. Id. at 27–29. But this is simply not true. The Plaintiff has created a genuine dispute about whether the Defendants were operating under an unwritten—and overly restrictive—policy that kept inmates in serious medical distress from being sent to a hospital for adequate care. Specifically, at a deposition in a separate case, Dr. Frankowitz testified that Armor's nurses needed a written order from a doctor before they could send a patient to the hospital. Frankowitz Apr. 28, 2015 Dep., Case No. 14-CV-61577-BB [ECF No. 85-34] at 158. Indeed, only if a patient experiences a "sudden catastrophic event[ ]," such as cardiac arrest, may the nurse call 911 without an Armor doctor's permission. Id. And, as Nurse Mowatt testified, an inmate could be sent to the hospital only in the following (very serious) circumstances:
Say a patient lost an eye, or you know, got vicious wounds or cuts, or some incident occur that could—you know, out of our control, bleeding. Severe bleeding. Something that basically we know we couldn't stabilize effectively, or immediately on site.
...
If a patient got, like I said, a severe—or cut their wrist for example and they're bleeding out; that's a lot of blood, you know. You basically want to act fast, because there's a time period. Because they sometimes really have a call where they announce an emergency at a location, patient probably unconscious. You know, you begin CPR. And again, you have to notify the team; hey, call 9-1-1.
Mowatt Dep. at 35–36; see also Spence Dep. [ECF No. 85-13] at 16 ("If the patient seemed unresponsive, then you could call 9-1-1 and send the patient out."). Moreover, the Plaintiff has submitted evidence of other inmate deaths—each bearing varying degrees of similarity to Mr. Obremski's—which, taken together, bolster her view that the Defendants were following an unreasonably restrictive hospitalization policy. See Pl.’s Resp. at 46–54. Finally, as noted, Dr. Cohen has opined that Mr. Obremski would have survived if the Defendants had transferred him to the hospital sooner. See Supp. Cohen Aff. at 1; Cohen Rep. at 13, 17.
These three pieces of evidence could lead a reasonable jury to conclude (1) that Armor and the Sheriff employed an overly restrictive custom or policy with respect to inmate hospitalization, (2) that the custom or policy was deliberately indifferent to the needs of dying inmates, and (3) that this custom or policy was a cause of Mr. Obremski's death.
Construing all disputed facts, drawing all reasonable inferences, and making all credibility choices in the light most favorable to the Plaintiff, the Court hereby DENIES the Sheriff and Armor's Motion for Summary Judgment on Counts 1 and 2.
II. The State-law Claims
A. Sovereign Immunity
Relying on Florida's sovereign-immunity statute, Fla. Stat. § 768.28, the Defendants argue that (1) Armor did not receive the pre-suit notice required by § 768.28(6) ; (2) any recovery against Armor is limited by § 768.28(5) ’s damages cap; (3) the Plaintiff's claims for punitive damages are prohibited by the express terms of § 768.28(5) ; and (4) the Individual Defendants are entitled to immunity under § 768.28(9). See Defs.’ Mot. at 35–38. The Plaintiff counters that § 768.28 is inapplicable here because Armor was not acting as the Sheriff's "agent." Pl.’s Resp. at 65–68.
The applicability of § 768.28 turns on whether Armor was a "state agency or subdivision," which is defined, in relevant part, to include "corporations primarily acting as instrumentalities or agencies of the state, counties, or municipalities." Fla. Stat. § 768.28(2). "Whether the party being contracted with is an agent of the state turns on the degree of control retained or exercised by the state agency." M.S. v. Nova Se. Univ. Inc. , 881 So. 2d 614, 617 (Fla. 4th DCA 2004). The degree of control, in turn, depends on the terms of the contract. Id. at 618. "An express intent regarding agency status is to be considered in deciding the issue, but it is not dispositive. If the provisions of the contract governing the state's right to control are inconsistent with the parties’ expressed intent, the nature of the relationship controls over the label." G4S Secure Sols. (USA), Inc. v. Morrow , 210 So. 3d 92, 94 (Fla. 2d DCA 2016). "Agency status is a question of fact, except in those cases where the party opposing summary judgment is unable to point to any conflicting facts or inferences to be drawn from the facts." M.S. , 881 So. 2d at 617.
Here, the Contract is genuinely ambiguous on the precise nature of the relationship between Armor and the Sheriff. On the one hand, as the Plaintiff points out, see Pl.’s Resp. at 66–67, the Contract expressly disclaims any intent to create an agency or similar relationship:
The SHERIFF expressly acknowledges that [Armor] is an "independent contractor", and nothing in this Agreement is intended nor shall be construed to create an agency relationship, an employer/employee relationship, a joint venture relationship, or any other relationship allowing the SHERIFF to exercise control or direction over the manner or
method by which [Armor], its subcontractors or independent contractors perform hereunder. The SHERIFF shall neither have nor exercise any control or direction over the methods by which [Armor] shall perform its work and functions other than as provided in this Agreement.
Contract at 47. On the other hand, Florida law is clear that, when "the provisions of the contract governing the state's right to control are inconsistent with the parties’ expressed intent, the nature of the relationship controls over the label." G4S Secure , 210 So. 3d at 94 ; see also Stoll v. Noel , 694 So. 2d 701, 703 (Fla. 1997) (noting that independent contractors "are not preluded from being agents of the state" for purposes of § 768.28 ). And the Defendants point to several provisions of the Contract that, in their view, leave the Sheriff with "significant control" over Armor's actions. See Defs.’ Mot. at 31–34; Contract at 2–4, 6–10, 13–23, 27–30, 37–40, 48, 51 (requiring Armor to comply with industry standards, appoint a medical director "reasonably acceptable to" the Sheriff, maintain accreditations, submit reports, agree to periodic audits, ensure that individuals in certain positions are always on call, propose all policies and procedures for the Sheriff's approval, provide the Sheriff with copies of Armor's financial reports, ensure that new employees comply with security regulations, abide by the Sheriff's requirements for intake medical screenings, and grant the Sheriff the right to remove any of Armor's staff members). The Plaintiff, for her part, cites other parts of the Contract that appear to afford Armor a significant degree of autonomy and discretion, especially with respect to the only salient question here: the provision of health services. See Pl.’s Resp. at 66–67; cf. Contract at 1–2, 8, 10–11, 14, 16–17, 22, 25–28 (delegating to Armor the tasks of choosing a medical director, hiring and training employees, giving work to subcontractors, developing and implementing healthcare protocols, obtaining necessary pharmacy services, resolving inmate healthcare grievances, and determining when inmates should be referred for outside medical services—such as trips to a hospital).
The Defendants’ suggestion that the Plaintiff is bound by her "alleg[ation] that Armor is an agent of the Sheriff," Defs.’ Mot. at 31, presumes too much. The Complaint contains only one reference to an "agency relationship" between Armor and the Sheriff. See Compl. at 63. And that solitary reference appears only in a heading—not in a numbered factual paragraph. Id. The reference thus does not constitute an unambiguous factual allegation to which the Plaintiff should be bound. That said, the Defendants will be free to use that reference at trial as evidence that the Plaintiff herself believed Armor to be the Sheriff's agent.
Drawing all reasonable inferences in the Plaintiff's favor, the Contract is ambiguous as to the degree of control the Sheriff exercised over Armor. See Yardum v. Scalese , 799 So. 2d 382, 383 (Fla. 4th DCA 2001) ("Where a written instrument lends itself to more than one reasonable interpretation, it is ambiguous and therefore summary judgment is improper for either party."); Langford v. Paravant, Inc. , 912 So. 2d 359, 360–61 (Fla. 5th DCA 2005) ("[W]hen the content of an agreement is ambiguous and the parties present different interpretations, the issue of proper interpretation becomes one of fact, precluding summary judgment."); CC-Aventura, Inc. v. The Weitz Co., LLC , 2007 WL 3343041, at *2 (S.D. Fla. Nov. 8, 2007) (when a contract is "ambiguous as to [p]laintiffs’ available damages[,] ... summary judgment is inappropriate"). Again, "[a]gency status is a question of fact, except in those cases where the party opposing summary judgment is unable to point to any conflicting facts or inferences," M.S. , 881 So. 2d at 617. Given that both sides have cited several such "conflicting facts and inferences," the Defendants’ Motion for Summary Judgment on the application of the sovereign-immunity statute is DENIED .
Should the jury conclude that Armor was acting as the Sheriff's agent within the meaning of § 768.28, the Court will then resolve the subsidiary issues of statutory notice, damages limitation, and the Individual Defendants’ immunity.
B. Negligence
"To establish a cause of action for negligence in a wrongful death action, a plaintiff must allege and prove (1) the existence of a legal duty owed to the decedent, (2) breach of that duty, (3) legal or proximate cause of death was that breach, and (4) consequential damages." Jenkins v. W.L. Roberts, Inc. , 851 So. 2d 781, 783 (Fla. 1st DCA 2003). In the Defendants’ view, no reasonable trier of fact could find that (1) any of the Individual Defendants breached a legal duty to Mr. Obremski, or that (2) any such breach caused his death. See Defs.’ Mot. at 38–45. And, Armor and the Sheriff add, if no Individual Defendant was negligent, then they cannot be vicariously liable either. Id. at 45.
Starting with the Doctors, the Court has already concluded that there are genuine issues of material fact as to whether their conduct amounted to more than "mere negligence." See supra Section I.A. By definition, then, there is sufficient evidence in the record for a reasonable jury to find that those same Doctors were negligent. And the Defendants’ suggestion that the Doctors’ negligence could not have caused Mr. Obremski's death, Defs.’ Mot. at 43–45, is plainly belied by the supplemental affidavit of Dr. Cohen, who attested that, "had Dr. Burgess sent [Mr. Obremski] to the hospital ... at 12:34 on April 4, 2016, [Mr.] Obremski would have received the critical emergency care necessary for him to survive." Supp. Cohen Aff. at 1. This conclusion—that the Plaintiff's negligence claims against the Doctors survive summary judgment—necessarily moots Armor and the Sheriff's argument that they cannot, on these facts, be vicariously liable. In short, the Defendants’ Motion for Summary Judgment on Counts 13, 14, 15, 16, and 25 is DENIED .
Construing all facts in the light most favorable to the Plaintiff, there is also ample evidence from which a reasonable jury might find that Nurses Spence, Mowatt, and Kerr acted negligently. The Plaintiff's nursing expert characterized the Nurses’ actions as "sloppy," Shelton Dep. at 72, and opined that each of these Nurses’ care fell below the applicable standard. Specifically, Ms. Shelton faulted all three Nurses for failing to follow up with a physician about Mr. Obremski's deteriorating condition and criticized Nurse Kerr in particular for not undertaking additional efforts to obtain Mr. Obremski's vital signs. See id. at 61–65, 68; Shelton Report [ECF No. 57-7] at 5–6, 10–11. The Defendants concede that the Nurses had the authority to send Mr. Obremski to the hospital. See Mowatt Dep. at 35–36; see also Spence Dep. [ECF No. 85-13] at 16 ("If the patient seemed unresponsive, then you could call 9-1-1 and send the patient out."). And yet, for thirteen days, they failed to do so—a failure that, again, Dr. Cohen has said, was critical since "[Mr. Obremski's] life could still have been saved if he had been provided hospital care." Supp. Cohen Aff. at 1; see also Cohen Rep. at 13 ("Mr. Obremski spent thirteen days in jail, where he predictably deteriorated rapidly, and dramatically. The lack of necessary care that he received is extremely disturbing and resulted in his preventable death.").
The Nurses’ Motion for Summary Judgment on Counts 20, 21, and 23 is therefore DENIED .
C. Punitive Damages
The Plaintiff seeks punitive damages on both her § 1983 and her state-law negligence claims. See Compl. at 5, 39, 44, 49–50, 53, 55, 59, 62, 70–72, 75–76, 79. The Defendants ask the Court to enter judgment on this portion of the Plaintiff's claims. See Defs.’ Mot. at 45–47.
"[A] jury may be permitted to assess punitive damages in an action under § 1983 when the defendant's conduct is shown to be motivated by evil motive or intent, or when it involves reckless or callous indifference to the federally protected rights of others." Smith v. Wade , 461 U.S. 30, 56, 103 S.Ct. 1625, 75 L.Ed.2d 632 (1983). For the state-law claims, "[a] defendant may be held liable for punitive damages only if the trier of fact, based on clear and convincing evidence, finds that the defendant was personally guilty of intentional misconduct or gross negligence." Fla. Stat. § 768.72(2). Intentional misconduct requires "that the defendant had actual knowledge of the wrongfulness of the conduct and the high probability that injury or damage to the claimant would result and, despite that knowledge, intentionally pursued that course of conduct, resulting in injury or damage." Fla. Stat. § 768.72(2)(a). " ‘Gross negligence’ means that the defendant's conduct was so reckless or wanting in care that it constituted a conscious disregard or indifference to the life, safety, or rights of persons exposed to such conduct." Fla. Stat. § 768.72(2)(b).
In a nutshell, the viability of the Plaintiff's § 1983 punitive damages claims turns on the difference between "deliberate indifference" and "reckless or callous indifference." And, for her negligence claims, the relevant distinction is between ordinary and "gross negligence." These, again, are distinctions, not of kind, but of degree, which the jury as fact-finder must draw. See Waldron v. Spicher , 349 F. Supp. 3d 1202, 1218 (M.D. Fla. 2018) (finding sufficient evidence to create jury question as to punitive damages in § 1983 action); see also Ingram v. Pettit , 340 So. 2d 922, 924 (Fla. 1976) (finding enough evidence to create jury question as to punitive damages in Florida negligence action); cf. Case v. Newman , 154 So. 3d 1151, 1156–57 (Fla. 1st DCA 2014) (same). The Defendants’ Motion for Summary Judgment on the Plaintiff's claim for punitive damages is therefore DENIED .
D. Notice
The Plaintiff moves for summary judgment on the Defendants’ Seventh Affirmative Defense—in which the Defendants allege that the Plaintiff failed to serve proper notice on Armor and the Sheriff under Fla. Stat. § 768.28(6). See Pl.’s Mot. at 3–7. In their Response, see Defs.’ Resp. at 2, the Defendants conceded that the Plaintiff properly notified the Sheriff, so the Court will GRANT in part the Plaintiff's Motion on this Affirmative Defense. But it will be for the jury to decide whether § 768.28 applies to Armor at all. See supra Section II.A. The Plaintiff's Motion for Summary Judgment on the Defendants’ Seventh Affirmative Defense—as regards Armor—is thus DENIED .
Notice to the Individual Defendants is governed by a different statute. See Fla. Stat. § 766.106, discussed infra.
The Court adds here only this: If the statute does not apply to Armor, then the question of notice is moot. If it does apply, the evidence suggests that, as to Armor, the Plaintiff may not have complied with the statute's notice requirements. In particular, because she has brought a wrongful-death claim against Armor—and given that Armor is not "a municipality, county, or the Florida Space Authority" —the Plaintiff had to "present the claim in writing to the Department of Financial Services (‘DFS’) within 2 years after the claim accrue[d]." Fla. Stat. § 768.28(6)(a)(2). The record indicates that she failed to do this. While the Plaintiff has submitted a letter her lawyer delivered to DFS on April 3, 2018, that letter expressed an intent to sue only "Sheriff Israel and the BCSO [Broward County Sheriff's Office]." See Letter to DFS [ECF No. 53-23] at 1–2. The letter never notified DFS of any claim the Plaintiff might assert against Armor. See generally id. Thus, if a jury concludes that § 768.28 applies to Armor, the Plaintiff's failure to notify DFS properly could impel the Court to enter judgment for Armor on the Plaintiff's state-law negligence claim.
The Plaintiff relies on a Middle District of Florida case, Madak v. Nocco , 2019 WL 414877 (M.D. Fla. Feb. 1, 2019), for her position that Armor is the "County." Pl.’s Supp. Br. at 2–3. After cursorily "agree[ing] with the [DFS's] reading" of § 768.28 that "the word ‘county’ ... include[s] Sheriffs," the court concluded that notice to DFS was unnecessary in a suit against a sheriff. Madak , 2019 WL 414877 at *7. But the Madak Court's holding disregarded the Florida Supreme Court's earlier-stated view that a county and its sheriff are distinct legal entities. See Pirez v. Brescher , 584 So. 2d 993, 995 (Fla. 1991) (holding that notice to the county does not satisfy pre-suit notice requirement for a suit filed against the sheriff ). And, contrary to the Plaintiff's suggestion, Pl.’s Supp. Br. at 3–4, no subsequent modification to the statute's language abrogated Pirez ’s central holding that the sheriff is not the county. To the extent, then, that Madak conflicts with Pirez , the Court must follow the Florida Supreme Court and disregard Madak . See Winn-Dixie Stores, Inc. v. Dolgencorp, LLC , 746 F.3d 1008, 1021 (11th Cir. 2014) (noting that federal courts in Florida should "adhere to" the decisions of Florida's Supreme Court and its appellate courts in matters of state law). In any case, even if Madak were correct in treating a sheriff as a "county" under the statute, the Plaintiff's position that Armor—a private company that may or may not be the Sheriff's agent, see supra Section II.A.—is likewise the County would require a still-greater stretch of the statute's meaning than its text permits. See A. Scalia & B. Garner , Reading Law : The Interpretation of Legal Texts 69 (2012) ("The ordinary-meaning rule is the most fundamental semantic rule of interpretation.").
E. Statute of Limitations
The Plaintiff also moves for summary judgment on the statute-of-limitations defense asserted by Nurses Mowatt, Kerr, and Spence. See Pl.’s Mot. at 7–10 (challenging the Defendants’ Twelfth Affirmative Defense). These three Defendants argue that the Plaintiff's pre-suit notice did not strictly comply with Fla. Stat. § 766.106(2) —and that, as a result, the statute of limitations on the Plaintiff's claims expired before they received proper notice. Defs.’ Resp. at 5–6. Nurse Spence, for her part, admits that she was served under § 766.106(2) by certified mail, "return receipt requested." See Spence Return-Receipt Card [ECF No. 53-3]. Her only argument is that she does not recognize the signature on the green card as belonging either to her or to anyone else she lives with. See Spence Dep. at 5–7. Even so, it is undisputed that the card was sent to her address by certified mail, "return receipt requested," id. at 6. It thus strictly complied with § 766.106(2).
The Defendants agree that this Affirmative Defense applies—if it applies at all—only to Nurses Mowatt, Kerr, Spence, and Mills. See Defs.’ Resp. at 5–6; Nov. 1, 2019 Hr'g Tr. [ECF No. 142] at 100–02. But, since the Court has already entered judgment for Nurse Mills, the question is moot as to her.
Mowatt and Kerr raise a different question. In their view, Florida law requires a plaintiff in a medical malpractice case to notify " ‘each prospective defendant by certified mail, return receipt requested ’ " of her intent to initiate litigation for medical negligence. Defs.’ Resp. at 6 (quoting § 766.106(2)(a) ). Notably, though, both Mowatt and Kerr concede that, after several attempts to serve them by certified mail failed because they refused to sign, the Plaintiff served them by delivering the notices to their homes and by leaving the notices with persons of competent age who lived there. See Returns of Service [ECF Nos. 53-5, 53-6]; Hr'g Tr. at 103. Putting the medical-malpractice statute's more-particular notice requirements to one side, there is no dispute that, in the average case, this notice would have complied with Florida law. See Fla. Stat. § 48.031(1)(a). Notably, the Nurses never suggest that they were somehow prejudiced by the method of service the Plaintiff employed. Nor do they claim that this service method failed to place them on actual notice of the Plaintiff's intent to sue them. In virtually identical circumstances, the Florida Supreme Court rejected the argument the Defendants raise here and held that a plaintiff who provides the defendant with actual notice need not strictly comply with the "return receipt" language of § 766.106(2). See Patry v. Capps , 633 So. 2d 9, 12–13 (Fla. 1994) ("answer[ing] the question as rephrased below in the affirmative: WHETHER THE ACKNOWLEDGED RECEIPT OF TIMELY WRITTEN NOTICE OF INTENT TO INITIATE LITIGATION FOR MEDICAL MALPRACTICE THAT RESULTS IN NO PREJUDICE TO THE DEFENDANT IS SUFFICIENT NOTICE UNDER ... SECTION 766.106(2).").
The Plaintiff's Motion for Summary Judgment on the Defendants’ Twelfth Affirmative Defense is therefore GRANTED .
F. Other Factual Matters
Finally, the Plaintiff asks the Court to enter summary judgment on the following factual questions: (1) whether, between March 23 and April 4, 2016, Mr. Obremski's drug-and-alcohol withdrawal constituted a "serious medical need"; (2) whether, during those thirteen days, the Individual Defendants were subjectively aware of Mr. Obremski's drug-and-alcohol withdrawal; (3) whether, between March 31 and April 4, 2016, the infections on Mr. Obremski's body qualified as a "serious medical need"; and (4) whether, during those five days, Dr. Frankowitz was subjectively aware of those infections. Pl.’s Mot. at 10–15. In response, the Defendants say that it would be procedurally improper for the Court to resolve only some facts, but not others, because the Plaintiff's Motion does not seek summary judgment on any single cause of action as a whole. See Defs.’ Resp. at 6–9.
Even if the Plaintiff's request were procedurally proper, though—a question the Court need not, and does not, decide today— Rule 56(g) unambiguously permits, but does not require , the Court to enter judgment on discrete factual questions. See FED. R. CIV. P. 56(g) ("If the court does not grant all the relief requested by the motion, it may enter an order stating any material fact—including an item of damages or other relief—that is not genuinely in dispute and treating the fact as established in the case."). This reading of the Rule's precatory language finds further support in the Advisory Committee's notes, which make clear that, "[e]ven if the court believes that a fact is not genuinely in dispute it may refrain from ordering that the fact be treated as established." FED. R. CIV. P. 56(g) advisory committee's note to 2010 amendment. In these circumstances, the "court may conclude that it is better to leave open for trial facts and issues that may be better illuminated by the trial of related facts that must be tried in any event." Id.
Whatever the Court does with the Plaintiff's proposed findings of fact, the jury will still have to hear all about Mr. Obremski's medical needs and the degree to which the Defendants were subjectively aware of those needs. Entering the Plaintiff's proposed factual findings now would thus neither save time nor aid the jury in understanding the timeline of relevant events. This aspect of the Plaintiff's Motion is therefore DENIED .
***
Having carefully considered the briefs, the record, and the governing law, the Court hereby ORDERS AND ADJUDGES that:
1. The Plaintiff's Motion [ECF No. 52] is GRANTED in part and DENIED in part as follows:
a. The Plaintiff's Motion is GRANTED as to the Defendants’ Twelfth Affirmative Defense.
b. The Plaintiff's Motion is GRANTED as to the Defendants’ Seventh Affirmative Defense—but only with respect to the propriety of pre-suit notice on the Sheriff.
c. In all other respects, the Plaintiff's Motion is DENIED .
2. The Defendants’ Motion [ECF No. 115] is GRANTED in part and DENIED in part as follows:
a. The Defendants’ Motion is GRANTED , and summary judgment shall enter, as to all claims against Nurses Parke, Mills, and Dorcely (Counts 6, 9, 11, 19, 22, and 24).
b. The Defendants’ Motion is GRANTED , and summary judgment shall enter, as to the Plaintiff's § 1983 claims against Nurses Spence, Mowatt, and Kerr (Counts 7, 8, and 10).
c. In all other respects, the Defendants’ Motion is DENIED .
DONE AND ORDERED in Fort Lauderdale, Florida this 7th day of April 2020.