ALLAN C. WEST, APPELLANT,
v.
LOUIE L. WAINWRIGHT, INDIVIDUALLY AND AS SECRETARY OF THE DEPARTMENT OF CORRECTIONS; J. C. COMBS, INDIVIDUALLY AND AS ASSISTANT SUPERINTENDENT, F.S.P.; MILTON R. HICKS, INDIVIDUALLY AND AS CORRECTIONAL OFFICER CHIEF III, APPELLEES

Fla. 1st DCA | 1980-03-20
Nos. JJ-116, KK-297
ERVIN, J., and MELVIN, WOODROW M., Associate Judge (Ret.), concur.
380 So. 2d 1338 Florida District Court of Appeal, First District (1980) Caution
Cited by 12 cases

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Holding

The court held that a prisoner's complaint alleging malicious mistreatment by state officials stated a cause of action against the officials individually, not requiring a prior written claim to the state. However, claims against the state require compliance with statutory conditions precedent.

Facts & Procedural History

A state prisoner sued state officials for negligent and malicious injury through denial of medical and dietary treatment. The complaint was dismissed …

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Topics
Statutory Condition Precedent Negligent Injury Vacating Default Default Judgment

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Opinion of the Court
ROBERT F. SMITH, Jr., Judge.

ROBERT F. SMITH, Jr., Judge.

The interlocutory appeal in case JJ-116, from an order vacating a default entered by the clerk, is properly taken pursuant to Fla.R.App.P. 4.2(a) (1962). Contrast Fla.R. App.P. 9.130 (1977); Security Motors, Inc. v. Fiat Motors of North America, Inc., 373 So. 2d 396 (Fla. 1st DCA 1979). The record sustains the trial court’s finding that the clerk improperly entered a default after defendants served papers in the action. Fla.R.Civ.P. 1.500.

The appeal in KK-297 is from an order dismissing appellant’s complaint seeking monetary damages for appellees’ alleged negligent and malicious injury to appellant, a state prisoner, through “a program of deliberate abuse” consisting of denying dietary and medical treatment of appellant’s .illness. The complaint was dismissed “without prejudice” on account of appellant’s failure to allege that he performed the statutory condition precedent of presenting his claim in writing to the Department of Insurance and appropriate agency. Section 768.28(6), Florida Statutes (1979).

Insofar as appellant’s claim was against the state, the order requiring compliance with Section 768.28(6) is correct, and the dismissal without prejudice was appropriate. But insofar as appellant’s complaint alleged malicious mistreatment “as a program of deliberate abuse designed to threaten the life of the Plaintiff or to drive him to distress,” the complaint stated a cause of action against the appellees individually, for which Section 768.28(6) does not require a written claim upon the state or its agencies. See Section 768.28(9), Florida Statutes (1979); District School Board of Lake County, et al. v. Talmadge, 381 So. 2d 698 (Fla. 1980). The trial court erred in dismissing the complaint against appellees individually.

The order appealed in JJ-116 is AFFIRMED; the order appealed in KK-297 is AFFIRMED IN PART, REVERSED IN PART.

ERVIN, J., and MELVIN, WOODROW M., Associate Judge (Ret.), concur.

Cases With Similar Vibessemantic neighbors from the corpus

Citator

Cited By

  • Swain v. Bernie Howell, 661 So. 2d 406 (Fla. 1st DCA 1995)
    …ansen v. State, 503 So. 2d 1324, 1326 (Fla. 1st DCA 1987) (insofar as complaint alleged that the officers “acted with malicious purpose and gross negligence,” it stated a cause of action against defendants individually). See also West v. Wainwright, 380 So. 2d 1338 (Fla. 1st DCA 1980). REVERSED and REMANDED. MICKLE and LAWRENCE, JJ., concur.…
  • Hamide v. State of Fla. Dep't OF Corr., 548 So. 2d 877 (Fla. 1st DCA 1989)
    …pparently without notice to appellant that such order of dismissal was contemplated. Furthermore, unlike Levine, the record in this case does not demonstrate conclusively that appellant will be unable to allege timely notice. In West v. Wainwright, 380 So. 2d 1338 (Fla. 1st DCA 1980), in a fact scenario somewhat similar to this case, this court approved a dismissal without prejudice of a complaint filed against the state. The dismissal was predicated on appellant’s failure to allege compliance with the statut…
  • Erling Knud Ove Hansen, Jr. v. State, 503 So. 2d 1324 (Fla. 1st DCA 1987)
    …leged “malicious intent” and “gross negligence,” the complaint stated a cause of action against Cummings, individually, for which section 768.28(6) does not require a written claim. See section 768.28(9), Florida Statutes (1979); West v. Wainwright, 380 So. 2d 1338 (Fla. 1st DCA 1980). Nonetheless, state prosecutors are entitled to absolute immunity when they perform their quasi-judicial functions of initiating prosecution and presenting the state’s case. Lloyd v. Hines, 474 So. 2d 376 (Fla. 1st DCA 1985). As…

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