LARA

v.

CHAD CHRONISTER

Defendants. __________________________________________/

ORDER GRANTING DEFENDANTS’ MOTIONS TO DISMISS

This matter is before the Court on three motions to dismiss: (1) “Defendants’ Dispositive Motion to Dismiss Plaintiff’s Amended Complaint Pursuant to Rule 12(b)(6), Fed.R.Civ.P.” (Doc. # 21), filed by Hillsborough County Sheriff and Deputy Joseph L. Lopez, in their official capacities.

(2) “Defendant St. Joseph’s Hospital’s Motion to Dismiss Plaintiff’s Amended Complaint for Violation of Civil Rights and Incorporated Memorandum of Law” (Doc. # 23), filed by St. Joseph’s Hospital, Inc. (3) “Motion to Dismiss,” (Doc. # 29), filed by Norma R. Lara.

The Attorney General of Florida has not yet appeared in this matter.¹ Plaintiff has not responded to the motions. After reviewing the motions, court file, and the record, the Court finds as follows:

Lopez responded to the call, detained Plaintiff, and took him to St. Joseph’s Hospital. Plaintiff alleges he was detained for about 18 hours without food. At about 11 a.m. on May 6, 2015, Plaintiff was evaluated by a doctor. The doctor released Plaintiff about four hours later, without the medical treatment Plaintiff claims would justify the forced detention. Procedural History

Plaintiff filed his initial pro se complaint on November 14, 2018. (Doc. # 1). On January 16, 2019, Defendants Hillsborough County Sheriff and Deputy Joseph Lopez moved to dismiss Plaintiff’s complaint, and on January 23, 2019, Defendant St. Joseph’s Hospital moved to dismiss Plaintiff’s complaint. (Doc. ## 11, 12). Plaintiff responded to Defendants’ motions on February 13, 2019, and he filed an amended complaint on June 21, 2019. (Doc. ## 14, 15, 17). Judge Kovachevich allowed the amended complaint to be filed but warned Plaintiff that he must

Florida Baker Act, for being detained illegally by a deputy sheriff and “retained against his will by a psychiatric hospital.” Legal Standard Federal Rule of Civil Procedure 8(a) requires that a complaint contain “a short and plain statement of the claim showing the [plaintiff] is entitled to relief.” Fed. R. Civ. P. 8(a). “Although Rule 8(a) does not require ‘detailed factual allegations,’ it does require ‘more than labels and conclusions’; a ‘formulaic recitation of the cause of action will not do.’” Young v. Lexington Ins. Co., No. 18- 62468, 2018 WL 7572240, at *1 (S.D. Fla. Dec. 6, 2018), report and recommendation adopted, No. 18-62468-CIV, 2019 WL 1112274 (S.D. Fla. Jan. 9, 2019) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007)). In order to survive a motion to dismiss, factual allegations must be sufficient “to state a claim for relief that is plausible on its face.” Twombly, 550 U.S. at 555. A claim is facially plausible when the pleaded facts “allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

WL 2176874, at *4 (N.D. Fla. Sept.¹, 2005) (citing Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690-91 (1978)) (finding sheriff could not be held liable because the deputies’ seizure of plaintiff operated as one incident that was “precisely the type of one-time decision by subordinate employees” for which “a public entity is not liable”). Upon review, the Court finds that Plaintiff does not allege that the constitutional violation was caused by the customs, policies, or procedures of the Sheriff, or that the Sheriff had notice of a history of abuse and a need for correction, or that the Sheriff personally participated in the incidents Plaintiff describes. Rather, Plaintiff appears to state that upon receiving a call from Plaintiff’s wife, Deputy Lopez “without medical justification … detained defendant and rendered him to the E.R. of St. Joseph’s Hospital.” Further, even if the incident was in some way a violation of Plaintiff’s constitutional rights, he does not allege it was anything more than a “one-time decision” made by a subordinate employee. As such, Plaintiff’s claim against the Hillsborough County Sheriff in His Official Capacity is subject to dismissal. Plaintiff names both the Hillsborough County Sheriff and a Deputy Sheriff, in their official capacities, as § 1983 defendants. The official capacity claims against

Deputy Lopez are duplicative of the official capacity claims against the Hillsborough County Sheriff. These duplicative claims serve no proper purpose and may confuse a jury. See Busby v. City of Orlando, 931 F. 2d 764, 776 (11th Cir. 1991); C.P. by and through Perez v. Collier County, 145 F. Supp. 3d 1085, 1091 (M.D. Fla. 2015); see also Brown v. Neumann, 188 F. 3d 1289, 1291 n.1 (11th Cir. 1999) (finding when plaintiff sued the sheriff and the deputy sheriff who performed the arrests, in their official capacities, dismissal of the deputy was proper because his joinder was duplicative). Consequently, the claims against Deputy Lopez in his official capacity are dismissed with prejudice and may not be refiled. Claims Against St. Joseph’s Hospital St. Joseph’s Hospital argues that as a non-governmental private corporation,

it is not a state actor and cannot be held liable under § 1983. The Eleventh Circuit uses three tests to determine whether a private entity is a state actor under § 1983: (1) the public function test; (2) the state compulsion test; and (3) the nexus/joint action test. The public function test limits state action to instances where private actors are performing functions “traditionally the exclusive prerogative of the state.” The state compulsion test limits state action to instances where the government “has coerced or at least significantly encouraged the action alleged to violate the Constitution.” The nexus/joint action test applies where “the state has so far insinuated itself into a position of interdependence with the [private entity] that it was a joint participant in the enterprise.”

Willis v. Univ. Health Servs., Inc. 993 F. 2d 837, 840 (11th Cir. 1993) (quoting Nat'l Broad. Co. v. Commc'ns Workers of Am., AFL-CIO, 860 F. 2d 1022, 1026-27 (11th Cir. 1988). A private party is rarely viewed as a state actor for § 1983 purposes. Harvey v. Harvey, 949 F. 2d 1127, 1130 (11th Cir. 1992). Even if Plaintiff can allege that St. Joseph’s is a state actor, he must also allege that the private entity had a custom or policy that constituted a deliberate indifference to his constitutional rights, or that the entity had a persistent and widespread practice of unconstitutional actions. See Groover, 684 F. App’x. at 787 (finding because plaintiff failed to allege sufficient facts to establish the private entity adopted a custom or practice that constituted deliberate indifference, he failed to state a claim for relief against the entity). Then, he must assert sufficient facts to show that the defendants are liable for the violations. Id. at 786. It is not enough to simply allege a violation of constitutional rights. Id.; see also Harvey, 949

F. 2d at 1133. Finally, a defendant cannot be liable under § 1983 on a respondeat superior or vicarious liability basis for actions of its employees. Harvey, 949 F. 2d at 1129 (citing Monell, 436 U.S. at 691). Private defendants in § 1983 actions are entitled to the same defenses as public defendants. Id. at 1130. In this case, Plaintiff does not allege any facts that would render St. Joseph’s – a private entity – a state actor under § 1983. Furthermore, Plaintiff has failed to allege that any custom or policy exists that constituted indifference to individual rights. These defects subject Plaintiff’s amended complaint to dismissal.

Claims Against Norma Lara The “state actor” analysis discussed above in connection with the claims against St. Joseph’s Hospital also applies to claims made against Norma Lara, Plaintiff’s former wife. Plaintiff alleges that Norma Lara and Albert Lara “conspired to get me deprived of my U.S. constitutional right of freedom, by requesting from the Hillsborough Sheriff their intervention to apply against me the

Florida Statue known as Baker Law, for the sole propose to get rid of me from the house…” (Doc. # 17). However, in order to impute liability on a private person, a plaintiff must allege that the private person conspired with a state actor. See Harvey v. Harvey, 949 F. 2d 1127 (11th Cir. 1992).

Claims Against The Estate of Albert P. Lara Norma Lara argues that the Estate of Albert P. Lara was improperly joined in this action. Under Florida law, “it is well-settled that ‘an Estate’ is not an entity that can be a party to litigation.” United States v. Estate of Schoenfeld, 344 F. Supp. 3d 1354, 1367 (M.D. Fla. 2018) (citing Spradley v. Spradley, 213 So. 3d 1042, 1045 (Fla. 2d DCA 2017)). The personal representative of the estate, in the representative capacity, is the proper party. Id. Therefore, Plaintiff’s claims against the Estate of Albert P. Lara are dismissed with prejudice and may not be refiled. Conclusion Consequently, the Court dismisses Plaintiff’s amended complaint, without prejudice, and directs Plaintiff to file a second amended complaint correcting the aforementioned deficiencies within the timeframe specified below. In addition to resolving the substantive pleading deficiencies noted above, when filing future complaints, Plaintiff should comply with the Federal Rules of Civil Procedure, as noted in Judge Kovachevich’s order. (Doc. # 18).5 The Estate of Albert P. Lara and Deputy Sheriff Joseph L. Lopez are dismissed from this action, with prejudice.6 It is therefore ORDERED, ADJUDGED, and DECREED: 1. “Defendants’ Dispositive Motion to Dismiss Plaintiff’s Amended Complaint Pursuant to Rule 12(b)(6), Fed.R.Civ.P.” (Doc. # 21), filed by Hillsborough County Sheriff and Deputy Joseph L. Lopez, is hereby GRANTED.

GRANTED.

3. Defendant Norma R. Lara’s “Motion to Dismiss” (Doc. # 29) is hereby GRANTED.

4. The Estate of Albert P. Lara is hereby DISMISSED WITH

PREJUDICE as a party to this case.

5. Deputy Sheriff Joseph L. Lopez is hereby DISMISSED WITH

PREJUDICE as a party to this case. 6. Plaintiffs Amended Complaint (Doc # 17) is DISMISSED WITHOUT PREJUDICE. Plaintiff [...] directed to file a second amended complaint on or before December 22, 2019. DONE and ORDERED in Chambers, in Tampa, Florida this 22nd day of November, 2019.

eo AN² ey UY [Sf | | | / J A a (

TOM BARBER

UNITED STATES DISTRICT JUDGE