UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF FLORIDA

DAVID CLEGG and 

SHARON ALLEN,

Plaintiffs, CASE NO.: 4:10-cv-81-RH/WCS

v.

DEPARTMENT OF JUVENILE JUSTICE and 

GULF COAST TREATMENT CENTER, INC.,

ASHER ZASLAW, JOHANA PEREZ, 

KEITH WILLIAMS, KELBY RAMER, DONNA

BAREFOOT, LOURDES QUIRAY, and

ROBERT ELLIS,

Defendants.

______________________________________________/

DEFENDANT LOURDES QUIRAY’S MOTION TO DISMISS

Defendant, LOURDES QUIRAY (“Quiray”), by and through the undersigned counsel 

and pursuant to Rule 12(b)(6), FED. R. CIV. PRO., hereby moves the Court to dismiss Plaintiffs’

Complaint with prejudice, and as grounds therefore states:

1. Plaintiffs’ Complaint alleges, “At all times material, Defendant’s [sic] Gulf 

Center had a contractual relationship with DJJ whereby Gulf Center, acting as an express 

contractual agent of DFF, was to provide certain residential program services to youngsters, 

including Plaintiff David Clegg.” (Plaintiffs’ Complaint ¶ 8.) Plaintiffs’ Complaint further 

alleges, “At all times material, Defendant Quiray was a psychiatrist affiliated with Gulf Center.” 

(Plaintiffs’ Complaint ¶ 14.)

PLAINTIFF’S ALLEGATIONS

2. Count VII of Plaintiffs’ Complaint – the only count directed at Defendant Quiray 

– is titled “Civil Rights Claims Against Defendant Quiray.” Plaintiffs allege that Quiray “knew 

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that Plaintiff Clegg was disintegrating and needed a proper psychological assessment for proper 

diagnosis and treatment of his needs.” (Plaintiffs’ Complaint at ¶ 58.) Plaintiffs further allege

that Quiray “chose to ignore the need for neuropsychological testing and the CBHA and instead 

began subjecting Plaintiff Clegg to medications used as chemical restraints, without ever 

properly identifying the illness afflicting Plaintiff Clegg.” (Plaintiffs’ Complaint at ¶ 59.) 

3. Plaintiffs are presumably proceeding under 42 U.S.C. § 1983. However, 

Plaintiffs do not identify the Constitutional or Federal law allegedly violated by Quiray, other 

than to allege that Quiray violated Plaintiff Clegg’s “constitutionally protected liberty interests 

and due process right to be provided with proper care [and] to be free and safe from harm.” 

(Plaintiffs’ Complaint at ¶ 61.)

GROUNDS FOR DISMISSAL

4. Dismissal is proper for the following reasons:

I. Quiray is entitled to Eleventh Amendment immunity as an agent of the 

State of Florida.

II. Quiray is entitled to qualified immunity to the extent that she is being sued 

in her individual capacity.

III. Plaintiffs have failed to comply with the presuit requirements of Chapter 

766, Fla. Stat.

5. “For a motion to dismiss to be granted, plaintiff's complaint, factually accepted as 

correct, must evidence that there is no set of facts entitling him to relief.” 

MOTION TO DISMISS STANDARD

Brown v. Crawford 

County, Ga., 960 F.2d 1002, 1010 (11th. Cir. 1992). In considering a motion to dismiss under 

Rule 12(b)(6), the Court must take the well-pleaded factual allegations in the complaint as true 

and construe them in the light most favorable to the plaintiff. Hill v. White, 321 F.3d 1334, 1335 

(11th Cir. 2003). A plaintiff’s obligation to set forth sufficient grounds showing that he or she is 

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entitled to relief requires more than labels or conclusions, and a formulaic recitation of the 

elements of a cause of action will not suffice. Bell Atlantic Corp. v. Twombly

6. Although Rule 8 allows a plaintiff “considerable leeway” in framing the 

complaint, the Eleventh Circuit “has tightened the application of Rule 8 with respect to § 1983

cases in an effort to weed out nonmeritorious claims, requiring that a § 1983 plaintiff allege with 

some specificity the facts which make out its claim.” 

, 550 U.S. 544, 555 

(2007).

GJR Investments, Inc. v. City of Escambia, 

Fla., 132 F.3d 1359, 1367 (11th. Cir. 1998).

I. Quiray is Entitled to Eleventh Amendment Immunity

ARGUMENT

7. The Eleventh Amendment of the United States Constitution protects states from

lawsuits brought by private citizens in federal court. Board of Trustees of Univ. Of Alabama v. 

Garrett, 531 U.S. 356, 363 (2001) (stating “[t]he ultimate guarantee of the Eleventh Amendment 

is that nonconsenting States may not be sued by private individuals in federal court”). A private 

individual may only bring suit against the state if the state has waived its immunity or if 

Congress has unequivocally abrogated the state’s immunity “pursuant to a valid grant of 

Constitutional authority.” Id. (quoting Kimel v. Florida Bd. Of Regents

8. Plaintiffs cannot demonstrate any abrogation of Florida’s Eleventh Amendment 

immunity by Congress. Further, Florida has not waived its Eleventh Amendment immunity. 

Section 768.28(18), Florida Statutes, states:

, 528 U.S. 62, 73 (2000)).

No provision of this section, or of any other section of the Florida Statutes, 

whether read separately or in conjunction with any other provision, shall be 

construed to waive the immunity of the state or any of its agencies from suit in 

federal court, as such immunity is guaranteed by the Eleventh Amendment to the 

Constitution of the United States, unless such waiver is explicitly and definitely 

stated to be a waiver of the immunity of the state and its agencies from suit in 

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federal court. This subsection shall not be construed to mean that the state has at 

any time previously waived, by implication, its immunity, or that of any of its 

agencies, from suit in federal court through any statute in existence prior to June 

24, 1984.

§ 768.28(18), Fla. Stat.

9. The Florida legislature has specifically refused to waive its Eleventh Amendment 

immunity. Thus, the issue is whether the Eleventh Amendment immunity afforded to the Florida 

Department of Juvenile Justice extends to Defendant Quiray.

10. Section 768.28(11)(a), Florida Statutes, states:

Providers or vendors, or any of their employees or agents, that have contractually 

agreed to act on behalf of the state as agents of the Department of Juvenile Justice 

to provide services to children in need of services, families in need of services, or 

juvenile offenders are, solely with respect to such services, agents of the state for

purposes of this section while acting within the scope of and pursuant to 

guidelines established in the contract or by rule. A contract must provide for the 

indemnification of the state by the agent for any liabilities incurred up to the 

limits set out in this chapter.

§ 768.28(11)(a), Fla. Stat.

11. Thus, providers or any of their employees or agents acting on behalf of the 

Department of Juvenile Justice in providing services to children are agents of the state. Flat. Stat. 

§ 768.28(11)(a). 

12. It is well settled that suits for damages against individuals acting in their official 

capacity as agents of the state are barred by the Eleventh Amendment. Gamble v. Florida 

Department of Health and Rehabilitative Services, 779 F.2d 1509, 1512 (11th. Cir. 1986);

Manders v. Lee, 338 F.3d 1304, 1308 (11th. Cir. 2003) (stating that “[t]o receive Eleventh 

Amendment immunity, a defendant need not be labeled a ‘state officer’ or ‘state official,’ but 

instead need only be acting as an ‘arm of the State,’ which includes agents and instrumentalities 

of the State”). 

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13. Plaintiffs’ Complaint unequivocally states that “Gulf Center had a contractual 

relationship with DJJ whereby Gulf Center, acting as an express contractual agent of DJJ, was to 

provide certain residential program services to youngsters, including Plaintiff David Clegg.” 

(Plaintiffs’ Complaint ¶ 8.) Plaintiff’s Complaint further states that at all times material

Defendant Quiray was acting on behalf of both the Department of Juvenile Justice and Gulf 

Center. (Plaintiffs’ Complaint ¶ 24.)

14. By Plaintiffs’ own admission, Quiray was acting on behalf of the state of Florida

in her official capacity as an agent of both the Department of Juvenile Justice and Gulf Center. 

Therefore, Quiray is entitled to Eleventh Amendment immunity, and dismissal of Plaintiffs’ suit 

is appropriate.

II. Quiray is Entitled to Qualified Immunity

15. Even if Quiray is not entitled to Eleventh Amendment immunity, Quiray is

entitled to qualified immunity.

16. While suits against state officers acting in their official capacity are generally 

prohibited, suits against state officers in their individual capacity are not. Id. However, state 

individual suits against state officers may still be barred under the doctrine of qualified 

immunity, as “government officials performing discretionary functions generally are shielded 

from liability for civil damages insofar as their conduct does not violate clearly established 

statutory or constitutional rights of which a reasonable person should have known.” Harlow v. 

Fitzgerald

17. The Eleventh Circuit “utilizes a two-part analysis for the defense of qualified 

immunity. First, the defendant government official must prove that he was acting within the 

scope of his discretionary authority when the allegedly wrongful acts occurred. If the defendant 

, 457 U.S. 800, 818 (1982).

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meets this burden, the plaintiff must then demonstrate that the defendant violated clearly 

established law based upon objective standards.” Hartsfield v. Lemacks, 50 F.3d 950, 953 (11th. 

Cir. 1995). The standard for showing that a defendant violated clearly established law is high. 

“A government actor can be stripped of qualified immunity only when all reasonable 

government actors in the defendant's place would know that the challenged discretionary conduct 

violates federal law. Consequently, qualified immunity protects ‘all [governmental actors] but 

the plainly incompetent or those who knowingly violate the law.’” Adams v. Poag, 61 F.3d 1537, 

1543 (11th. Cir. 1995) (quoting Malley v. Briggs, 475 U.S. 335, 341, (1986)). Further, when a 

claim involves the failure of a government agent to provide proper medical treatment, the 

plaintiff “must demonstrate that the [defendant’s actions] violated a clear and specific standard 

and that similarly situated reasonable health care providers would have known that their actions 

violated [plaintiff’s] constitutional right.” Id. Importantly, “[m]ere negligence in diagnosing or 

treating a medical condition is an insufficient basis for grounding liability.” 

18. Here, as Plaintiffs’ Complaint makes clear, Quiray was acting within the scope of 

her discretionary authority as an agent of Gulf Center and the Department of Juvenile Justice.

(Plaintiffs’ Complaint ¶ 30.) Thus, the question is whether Plaintiffs’ Complaint sufficiently 

alleges that Quiray violated a clearly established law.

Id.

19. Plaintiffs have not alleged that Quiray violated any clearly established law; rather, 

Plaintiffs only make vague allegations that Quiray disregarded Plaintiff Clegg’s “constitutionally 

protected liberty interests and due process right to be provided with proper care [and] to be safe 

and free from harm.” (Plaintiffs’ Complaint ¶ 61.) Plaintiffs also fail to articulate any standard –

let alone a clear and specific standard – that Quiray allegedly violated and which would amount 

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to a violation of a clearly established law. Consequently, Plaintiffs cannot overcome the 

qualified immunity afforded to Quiray, and dismissal of Plaintiffs’ action is appropriate.

III. Plaintiff Has Failed to Comply with Chapter 766, Florida Statutes

20. Plaintiffs’ claim against Quiray is based solely on Quiray’s alleged failure to 

provide proper medical care and treatment to Plaintiff Clegg. Section 766.106(1)(a), Florida 

Statutes, defines a claim for medical negligence as “a claim, arising out of the rendering of, or 

the failure to render, medical care or services.” Plaintiffs’ claim is thus clearly a claim for 

medical negligence. 

21. Pursuant to section 766.106(2), Florida Statutes, a claimant must notify the 

prospective defendant of the claimant’s intent to initiate litigation based on medical negligence. 

After providing such notice, the claimant may not file suit for a period of ninety days. Fla. Stat. § 

766.106(3)(a).

22. Plaintiffs have failed to provide the required notice pursuant to Chapter 766, 

Florida Statutes. Thus, dismissal of Plaintiffs’ claims against Quiray is appropriate.

IV. Plaintiff Sharon Allen’s Claim For Special Damages Cannot Be Sustained

24. Plaintiff Allen alleges that “[a]s a result of the Defendants’ conduct and resulting 

injuries to the minor Plaintiff, the Plaintiff parent incurred economic damages related to David’s 

care and treatment and medical needs and through David’s 18th birthday and her parental 

consortium rights were interfered with.” (Plaintiff’s Complaint ¶ 83.)

25. Because dismissal of Plaintiff Clegg’s claim against Quiray is appropriate, 

Plaintiff Allen’s consortium claim cannot be sustained. Gomez v. Pfizer, Inc., 675 F.Supp.2d 

1159, 1163 (S.D.Fla. 2009).

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26. Further, even if Plaintiff Clegg’s claim is not dismissed, dismissal of Plaintiff 

Allen’s claim for economic damages should still be dismissed for failure to set forth her damages 

with specificity. Fed. R. Civ. Pro. 9(g). 

27. Plaintiffs’ suit against Defendant Quiray is barred because Quiray is entitled to 

Eleventh Amendment immunity as an agent of the state acting in her official capacity. Further, 

to the extent that Plaintiffs are suing Quiray in her individual capacity, Quiray is entitled to 

qualified immunity because she has not violated a clearly established constitutional or federal 

law. Finally, Plaintiffs have failed to comply with the presuit notice requirements of Chapter 

766, Florida Statutes. For these reasons, dismissal is appropriate.

Conclusion

WHEREFORE, Defendant LOURDES QUIRAY respectfully requests that the Court 

enter an Order dismissing with prejudice all claims against Defendant Quiray.

Dated this 27th day of May 2010.

MICHAEL J. THOMAS

 /s/ Michael J. Thomas 

Florida Bar No.: 0897760

Pennington, Moore, Wilkinson, Bell

 & Dunbar, P.A.

215 S. Monroe Street, 2nd Floor

Tallahassee, FL 32301

Tele: 850-222-3533

Fax: 850-222-2126

ATTORNEY FOR DEFENDANT QUIRAY

Case 4:10-cv-00081-RH -WCS Document 27 Filed 05/27/10 Page 8 of 9
CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished 

electronically this 27th day of May, 2010 to:

KAREN A. GIEVERS, ESQ.

Karen A. Gievers, P.A.

524 E. College Avenue, Suite 2

Tallahassee, FL 32301

Tele: 850-222-1961

Fax: 850-222-2153

COUNSEL FOR PLAINTIFF

ROY D. WASSON, ESQ.

ANNABEL C. MAJEWSKI, ESQ.

Wason & Associates

Courthouse Plaza – Suite 600

28 West Flagler Street

Miami, FL 33130

Tele: 305-666-5053

Fax: 305-666-9511

CO-COUNSEL FOR PLAINTIFF

JOHN S. STEVENS, ESQ.

JONATHAN C. ABEL, ESQ.

Conroy, Simberg, Ganon, Krevans,

Abel, Lurvey, Morrow & Schefer

3440 Hollywood Blvd., 2nd Floor

Hollywood, FL 33021

Tele: 954-518-1400

Fax: 954-518-8640

COUNSEL FOR DEFENDANTS’

DEPT. OF JUVENILE JUSTICE,

GULF COAST TREATMENT CENTER, INC.,

ASHER ZASLAW, JOHANA PEREZ,

KEITH WILLIAMS, KELBY RAMER, 

DONNA BAREFOOT, and ROBERT ELLIS

MICHAEL J. THOMAS

 /s/ Michael J. Thomas

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