WEST

v.

SABRINA SCHULTZ

BONNIE LAROSA, ROBERT GILBREATH, SABRINA SCHULTZ, DIANN SPRATT, JULIE JONES, WEXFORD HEALTH SOURCES, KATHY CONNER, KARA WILLIAMS and JAMES LICATA,

Defendants. /

OPINION AND ORDER1

Plaintiff James Daryl West a state prisoner sued by filing a pro se civil rights complaint on September⁸, 2016 (Doc. 1). The Court granted West in forma pauperis status but directed him to file an amended complaint (Doc. 12). After affording West two extensions of time, West filed his amended civil rights complaint on May 15, 2017 (Doc.

2019, West filed his Second Amended Complaint, which supersedes the amended complaint and is the operative pleading. (Doc. 168, “SAC”). Schreane v. Middlebrooks, 522 F. App’x 845, 847-48 (11th Cir. 2013); see also M.D. Fla. R. 4.01(a). The SAC consists of 25 pages, 165 paragraphs and, unlike the amended complaint, attaches no exhibits. (Id.). The SAC contains two counts. Count I alleges a civil rights claim under 42 U.S.C. § 1983 against all defendants for violating West’s Fourteenth and Eighth Amendment rights. (Doc. 168 at 16-22). Count II alleges a Florida pendent state law negligence claim for breach of duty against all defendants. (Id. at 22- 24). Although the SAC names the Florida Department of Corrections (DOC) as a defendant in introductory paragraphs (see Doc. 168 at 1, and at ¶3) and includes DOC as a defendant in both counts of the SAC (Id., ¶¶ 128, 149-153), the SAC expressly sues “[a]ll defendants” only “in their individual capacity” (see Doc. 1 at 1), including Julie Jones, the (former) Secretary of the Florida Department of Corrections. (Id., ¶ 6). West seeks compensatory damages, costs and attorney fees. (Id. at 25). West does not seek injunctive relief. (Id.).

A. Pending Motions

Pending before the Court are two consolidated motions to dismiss. Defendants Wexford Health Sources, Inc., Robert Hemphill, M.D., Howard Wetter, M.D., Karen Blankenship, A.R.N.P., and Bonnie LaRosa, R.N. (collectively the “Medical Defendants”²) moved to dismiss under Fed. R. Civ. P. 12(b)(6). See generally Doc. 170. The Medical Defendants argue the SAC improperly relies on the Fourteenth Amendment, instead of the Eighth Amendment, which governs prisoners; and also point out West cites to the incorrect legal standard that governs the conditions of a prisoner’s confinement, as opposed to the elements that comprise a medical deliberate indifference claim. The Medical Defendants submit the SAC fails to allege sufficient facts to sustain an Eighth Amendment claim because West fails to identify a serious medical need (the objective factor) or set forth sufficient allegations that the Medical Defendants were deliberately indifferent to West’s medical need (the subjective factor). Further, Wexford maintains the SAC fails to articulate a policy or custom for liability to be attributed to it as a corporate entity. Finally, Wexford argues West is attempting to repackage his state law medical negligence claim as a simple negligence claim to avoid Florida’s pre-suit notice requirement. Plaintiff filed a response to the Medical Defendant’s motion. (Doc. 174)

Defendants, Mark Inch, Secretary of the Florida Department of Corrections, Julie Jones, Diann Spratt, Kara Williams, James Licata and Kathy Conner (collectively the “DOC Defendants”³) moved to dismiss under Fed. R. Civ. P 12(b)(6), failure to exhaust administrative remedies and qualified immunity. See generally Doc. 172. DOC asserts the SAC attributes liability to certain DOC defendants based upon their respective roles reviewing West’s grievances. Further, DOC contends West failed to exhaust his

B. Shotgun Pleading

Federal Rules of Civil Procedure⁸ and 10 set the minimum requirements for pleadings. Rule 8(a)(2) requires a complaint to contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). And Rule 10(b) says “[a] party must state its claims . . . in numbered paragraphs, each limited as far as practicable to a single set of circumstances.” Fed. R. Civ. P. 10(b). Shotgun pleadings “fail to one degree or another . . . to give the defendants adequate notice of the claims against them and the grounds upon which each claim rests.”

Weiland v. Palm Beach Cnty. Sherriff’s Office, 792 F. 3d 1313, 1321-23 (11th Cir. 2015) (defining four types of shotgun pleadings). “Courts in the Eleventh Circuit have little tolerance for shotgun pleadings.” Vibe Micro, Inc. v. Shabanets, 878 F. 3d 1291, 1295 (11th Cir. 2018) (citations omitted). They “waste scarce judicial resources, inexorably broaden[ ] the scope of discovery, wreak havoc on appellate court dockets, and undermine[ ] the public’s respect for the courts.” Id. (internal quotes and citation omitted).

exhibits do not appear to include all of the formal grievance and appeals West attached as exhibits to his amended complaint. (See Doc. 22). The Court is unable to determine exhaustion if it cannot discern the exact nature of West’s claims and on what dates the claims occurred. The Court finds the SAC is a shotgun pleading. The SAC is poorly organized and replete with conclusory allegations. See e.g. Doc. 168 at ¶¶ 32, 39, 45-46, 51-52, 57, 65, 77, 86, 102, 109, 121, and 126. The SAC contains several inconsistencies,⁵ the allegations in the SAC are not arranged in a chronological fashion and many of allegations are too vague or fail to contain a reference date to be considered relevant to the claims. Id., ¶¶ 38, 40, 41. 50. 52, 54, 57, 59-64, 74-76, 104-105. The Court has spent an inordinate amount of time rearranging the SAC’s factual allegations in a chronological fashion and omitting speculative, vague and conclusory allegations in an attempt to rule on the pending motions. Despite its best efforts, the Court cannot discern whether West is attempting to bring (1) an Eighth Amendment⁶ deliberate indifference claim stemming from an alleged denial of medical care; and if so, for what specific medical condition and for what specific time period; (2) an Eighth Amendment deliberate indifference claim stemming from all or certain aspects of his job assignment in food service or, because on occasion he was required to perform duties inconsistent with his restricted duty pass; or

The SAC also states Wexford was the healthcare provider at Charlotte Correctional from January 2016 through September 2017 (Doc. 168, ¶ 135). However, the dates in the SAC for which West claims he was seen by any of the Medical Defendants and denied medical care occurred from June 2015 through August 2015.

15, 2020. Failure to file a timely third amended pleading will cause the closure of this case without further notice. b. Plaintiff must serve a copy of the Third Amended Complaint on each defendant or counsel for defendant. If a defendant is unserved, Plaintiff shall first attempt to obtain counsel for Wexford or DOC’s agreement to accept service on behalf of the unserved defendant before moving the Court to have the U.S. 7 Both Wexford and DOC point out the lack of clarity regarding whether West is bringing a conditions of confinement claim. (Docs. 170 at 3; 172 at 15). Marshal effectuate personal service under Fed. R. Civ. P 4(c)(3).8 3. Defendants shall have forty-five (45) days after service to respond to the Third Amended Complaint.

4. Plaintiff’s Motion for Service by U.S. Marshal (Doc. 188) is DENIED without prejudice. 5. The Clerk is DIRECTED to administratively close this case for ninety (90) days. Upon reopening, the United States Magistrate Judge Nicholas P. Mizell must set this case for a preliminary pretrial conference before issuing a revised case management and scheduling order. DONE and ORDERED in Fort Myers, Florida this 19th day of March 2020.

SA: FTMP-1

Copies: All Parties of Record The Honorable Nicholas P. Mizell