Opinion
Case No. 8:98-CV-1214-T-27TGW
August 9, 2001
ORDER ON DEFENDANT'S MOTION FOR RECONSIDERATION
THIS CAUSE came on to be considered on Defendant's Motion for Reconsideration (Dkt. 95) and Plaintiff's response thereto (Dkt. 96). The Court having reviewed said motion and being otherwise fully advised in the premises, finds as follows:
Defendant has moved for reconsideration of this Court's Supplemental Order Denying Defendant's Motion to Dismiss (Dkt. 94) on the grounds that matters outside of the four-corners of the Complaint were improperly considered. Specifically, Defendant maintains that the Department of Corrections' Bloodborne Pathogens Exposure Control Plan (Dkt. 84) and Defendant Hester's deposition were improperly considered.
Motions for reconsideration are only granted upon presentation of "facts or law of a strongly convincing nature to induce the court to reverse its prior decision." Cover v. Wal-Mart Stores. Inc., 148 F.R.D. 294, 295 (M.D. Fla. 1993). The need to correct clear error or manifest injustice are grounds justifying reconsideration. Id.
Here, the Supplemental Order Denying Defendant's Motion to Dismiss was entered upon the Eleventh Circuit Court's opinion remanding this case "to the district court for further discovery and with instructions for the district court to delineate the reasons for denying the motion [to dismiss on qualified immunity grounds.]" (Dkt. 78). In response, Plaintiff supplemented the record with evidence and arguments. See (Dkts. 80-84, 86, 87, 89). Defendant never objected to Plaintiff's filing of the documents and supplemental arguments.
Generally, in ruling on a motion to dismiss a complaint for failure to state a cause of action pursuant to Fed.R.Civ.P. 12(b)(6), matters outside of the four-corners of the complaint may not be considered.Milburn v. United States, 734 F.2d 762, 765 (11th Cir. 1984). When a court does rely upon matters outside of the complaint, the 12(b)(6) motion to dismiss converts into a motion for summary judgment. Fed.R.Civ.P. 12(b)(6). At that point, all parties must be notified of the conversion and given an opportunity to submit relevant evidence and arguments. Marine Coatings of Alabama. Inc. v. United States, 792 F.2d 1565, 1568 (11th Cir. 1986).
However, when the plaintiff refers to certain documents in the complaint and those documents are central to the plaintiffs claim, the Court may consider the documents part of the pleadings for purposes of Rule 12(b)(6) dismissal and consideration of the documents will not require conversion of the motion into a motion for summary judgment.Brooks v. Blue Cross and Blue Shield of Florida. Inc., 116 F.3d 1364, 1369 (11th Cir. 1997); Watterson v. Page, 987 F.2d 1 (1st Cir. 1993). Here, the Bloodborne Pathogens Exposure Control Plan ("the Plan") was not referred to by name in Plaintiff's Complaint. The relevant policy of Defendant to provide gloves and protective equipment when encountering blood, which is discussed in the Plan, was, however, referred to in the Complaint. (Dkt. 40, ¶ H). Plaintiff alleged that Defendant has the responsibility for ensuring the health and safety of inmates, Defendant knew that full body protective clothing must be worn to prevent the human immunodeficiency virus ("HIV") from spreading and that the correctional institution in which Plaintiff was incarcerated was equipped with the protective clothing for that purpose. (Dkt. 40, ¶¶ B, H, I). These allegations concerning Defendant's policy were accepted as true and considered in the light most favorable to Plaintiff. Hishon v. King Spalding, 467 U.S. 69, 73 (1984). The fact that the Court referred to the Plan by name is of no moment as the crux of the matter is Plaintiff's allegation that Defendant disregarded the Department of Corrections' known policy of maintaining and using the blood spill kits. Viewing the allegations as true, the fact that Defendant violated its own policy supports Plaintiff's argument that Defendant violated his Eighth Amendment rights as Defendant knew a substantial risk of harm existed and disregarded the substantial risk of harm to Plaintiff's health. See Hope v. Pelzer, 240 F.3d 975 (11th Cir. 2001).
Plaintiff did specifically refer to the policies and standards set forth by the Center for Disease Control and the Occupational Safety and Health Administration in previous versions of the complaint. See (Dkt. 1, pg. 9a; dkt. 9).
Additionally, Fed.R.Evid. 201 authorizes courts to take judicial notice of public records that are capable of accurate and ready determination at any stage of the proceedings without converting the motion into a motion for summary judgment. See Bryant v. Avado Brands. Inc., 187 F.3d 1271, 1277 (11th Cir. 1999); Watterson, 987 F.2d 1; Allen v. Newsome, 795 F.2d 934 (11th Cir. 1986). The Plan is a document contained in the public record, §§ 119.01, 119.011, Fla. Stats. (1997), and is not exempted from disclosure by § 945.10, Fla. Stat. (1997). The authenticity of the Plan is not questioned and is capable of ready determination. Thus, the Court sua sponte takes judicial notice of the Plan. Plaintiff filed the Plan in support of its opposition to Defendant's Motion to Dismiss on October 4, 1999. (Dkts. 83-84). Defendant never moved to strike the submission from the record and never objected to Plaintiff's filing of the Plan. Defendant had ample notice and opportunity to challenge any consideration of the Plan. As Defendant did not do so, his objections to the Court considering the Plan are waived.
Defendant also maintains that Defendant's deposition testimony was improperly relied upon. Hester's deposition testimony, although noted, was not substantially relied upon in entering the Supplemental Order Denying Motion to Dismiss. Plaintiffs allegations in the Complaint that Hester was concerned about Plaintiff's placement of cleaning materials containing inmate's blood and allegations that Hester had knowledge of the excessive risk of exposure to blood were sufficient to show that Hester acted with deliberate indifference. (Dkt. 40, ¶¶ B, F, G, H, I).
Even if the Supplemental Order Denying Defendant's Motion to Dismiss improperly cited to the Plan and Hester's deposition testimony, the Defendant's Motion for Reconsideration is nonetheless without merit. Independent of the Plan and Hester's deposition testimony, Plaintiff sufficiently alleged an Eighth Amendment violation. Plaintiffs allegations that Defendant ordered him to clean up blood spills from other inmates, that Defendant knew of the substantial risks posed by exposure to blood, that Defendant was himself concerned about the location of the cleaning supplies Plaintiff used to clean inmates' blood and that Defendant refused to provide Plaintiff with protective clothing which was maintained by the Department of Corrections ("DOC") in the form of a blood spill kit, are sufficient to state a claim. (Dkt. 40, ¶¶ B, F, G, H, I). These allegations show that Defendant knew that Plaintiffs exposure to the inmates' blood posed a substantial risk of harm to Plaintiff and that Defendant disregarded that risk. Hope 240 F.3d at 978. As such, the allegations in the Complaint are sufficient to state a violation of Plaintiff's Eighth Amendment rights.
This finding is not changed by the Florida Second District Court of Appeal's opinion in Randles v. Moore. 780 So.2d 158 (Fla. 2d DCA 2001). That court found that the complaint on its face did not show the applicability of the sovereign immunity defense to the defendant, Secretary of the Florida Department of Corrections. Id. The defendant in that case took the position that the officer who ordered Randles to clean up the blood without protective clothing committed criminal misconduct.Id. at 159. The state appellate court's finding did not indicate that the officer's conduct was not criminal, only that it was not affirmatively shown on the face of the complaint that the conduct was criminal. The defendant in that case, the officer's employer, apparently disagreed. In any event, this Court merely mentioned in passing, the state trial court's ruling that Hester's conduct evidenced a "wanton and willful disregard of human rights . . . ultra vires and . . . criminal." (Dkt. 94, n. 2). Disregarding the mention of the state trial court's ruling, the Complaint here included allegations that were sufficient to show that Defendant knew and disregarded an excessive risk to Plaintiff's safety as previously elaborated upon herein and in the Court's Supplemental Order Denying Motion to Dismiss.
Given the allegations in the Complaint, the facts judicially noticed and the applicable case authorities, a reasonable officer could not have believed that his actions were lawful in light of clearly established law. Wilson v. Layne, 526 U.S. 603 (1999); see also Farmer v. Brennan, 511 U.S. 825 (1994); Helling v. McKinney, 509 U.S. 25 (1993); Hutto v. Finney, 437 U.S. 678 (1978); Estelle v. Gamble, 429 U.S. 97 (1976);Powell v. Lennon, 914 F.2d 1459 (11th Cir. 1990); Gates v. Collier, 501 F.2d 1291 (5th Cir. 1974). Accordingly, the Complaint alleges facts sufficient to avoid dismissal based on qualified immunity from suit. Requiring Plaintiff to clean other inmates' blood spills without using readily available protective clothing exposed Plaintiff to a condition of confinement that was likely to cause serious illness. See Helling andHutto, supra. Plaintiff asked Defendant for permission to open a blood spill kit on multiple occasions and Defendant refused each request. (Dkt. 40, I). Defendant did so even though (1) the blood spill kit was maintained by the DOC to prevent exposure to HIV, a deadly and incurable disease, (2) he was responsible for ensuring Plaintiff's safety, (3) he knew that protective clothing must be worn when cleaning blood spills to prevent the spread of HIV and (4) he was himself "very concerned" about the placement of mop that Plaintiff used to clean up and scrub a blood-stained prison cell. (Dkt. 40, ¶¶ B, G, H, I). According to the Complaint, Defendant deliberately exposed Plaintiff to a deadly, incurable disease. Under these circumstances, the unlawfulness of Defendant's conduct should have been readily apparent to Defendant, see Priester v. City of Rivera Beach, 208 F.3d 919 (11th Cir. 2000), and Defendant cannot be afforded qualified immunity.
Accordingly, it is
ORDERED AND ADJUDGED that: Defendant's Motion for Reconsideration (Dkt. 95) is DENIED.