Opinion
CASE NO. 6:04-cv-106-Orl-31DAB.
November 28, 2006
ORDER
This case is before the Court on Defendants' Halifax Medical Center and J.P. Smythe's Amended Motion to Dismiss (Doc. No. 66) and Defendants' Volusia County, Kevin Hickey, and S. Bispo's Motion to Dismiss (Doc. No. 68). Plaintiff filed responses to both motions. See Doc. Nos. 73, 79, and 80.
Plaintiff, a prisoner of the State of Florida proceeding pro se, filed a third amended complaint (Doc. No. 39) pursuant to 42 U.S.C. § 1983 against the defendants. Plaintiff alleges that he was denied adequate medical care and that certain Defendants failed to provide the post-operative medical care and treatment ordered by his physicians. According to Plaintiff, the failure resulted in physical injury and aggravation of his medical condition.
For purposes of the motion to dismiss, the complaint is construed in the light most favorable to the plaintiff and its allegations are taken as true. See Quality Foods de Centro America, S.A. v. Latin American Agribusiness Development Corporation S.A., 711 F.2d 989, 994-95 (11th Cir. 1983). A motion to dismiss will be denied unless it appears beyond all doubt that Plaintiff can prove no set of facts in support of his claims that would entitle him to relief. Luckey v. Harris, 860 F.2d 1012, 1016 (11th Cir. 1988), cert. denied, 495 U.S. 957 (1990). In the case of a pro se action, moreover, the Court should construe the complaint more liberally than it would form pleadings drafted by lawyers. Hughes v. Rowe, 449 U.S. 5, 9 (1980).
Plaintiff must be given the opportunity to prove his claim on the merits. Therefore, the motions to dismiss will be denied as to all Defendants. The matters raised in the motions to dismiss may be asserted in a motion for summary judgment.
Accordingly, it is ORDERED AND ADJUDGED as follows:
1. Halifax Medical Center and J.P. Smythe's Amended Motion to Dismiss (Doc. No. 66) is DENIED.
2. Defendants' Volusia County, Kevin Hickey, and S. Bispo's Motion to Dismiss (Doc. No. 68) is DENIED.
3. Defendants shall file an answer within FIFTEEN (15) DAYS from the date of this Order.
4. A review of the file reveals that Plaintiff has failed to effect service on Defendants John and Jane Doe (with the exception of the Defendant John Doe who is the current jail director for Volusia County Division of Corrections, see Doc. No. 57) within the 120 days provided by Rule 4(m) Federal Rules of Civil Procedure.
Within FIFTEEN (15) DAYS from the date of this Order, Plaintiff shall show cause why this case should not be dismissed without prejudice as to Defendants John and Jane Doe (with the exception of the Defendant John Doe who is the current jail director for Volusia County Division of Corrections) for failure to diligently prosecute pursuant to Rule 4(m), Federal Rules of Civil Procedure. Plaintiff is advised that the failure to comply with the provisions of this Order may result in dismissal of Defendants John and Jane Doe (with the exception of the Defendant John Doe who is the current jail director for Volusia County Division of Corrections) from this case without further notice. DONE AND ORDERED at Orlando, Florida.