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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

DAVID CLEGG et al.,

Plaintiffs,

v. CASE NO. 4:10cv81-RH/WCS

DEPARTMENT OF JUVENILE

JUSTICE et al.,

Defendants.

______________________________/

ORDER DISMISSING THE NEGLIGENT-PLACEMENT CLAIM

AND OTHERWISE DENYING THE MOTIONS TO DISMISS

The minor plaintiff was committed to the custody of the Florida Department

of Juvenile Justice. The Department placed him in a residential facility operated

by a private company under a contract with the Department. He alleges that

placing him there was negligent and that the facility’s staff was deliberately

indifferent to his medical needs. He asserts constitutional claims against the

facility and some of its employees under 42 U.S.C. § 1983. He asserts commonlaw negligence claims against the Department, based both on his placement in the

facility and on his treatment while there. His mother asserts claims for medical

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expenses and lost filial consortium. 

The defendants have moved to dismiss. The defendant employees assert

qualified immunity, but as private—not public—employees they are not eligible

for qualified immunity. The facility asserts Eleventh Amendment immunity, but as

a private contractor—not a state entity—it has no Eleventh Amendment immunity. 

The Department waived its Eleventh Amendment immunity by removing the case

to federal court, but it asserts state sovereign immunity. The Department does

indeed have sovereign immunity from the negligent-placement claim. Finally, the

defendants assert that the mother’s claim for medical expenses has not been pled

with the required specificity, but it has, if just barely. This order dismisses the

negligent-placement claim but otherwise denies the motions to dismiss.

I. The Facts

For purposes of a motion to dismiss, the complaint’s factual allegations,

though not its legal conclusions, must of course be accepted as true. See Ashcroft

v. Iqbal, 556 U.S. ___, 129 S. Ct. 1937, 1949-50, 173 L. Ed. 2d 868 (2009); Bell

Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 167 L. Ed. 2d. 929

(2007). The facts alleged in the first amended complaint include these. 

The plaintiff David Clegg is a juvenile who suffers from drug addiction and

mental illness. On August 18, 2008, Mr. Clegg was committed to the custody of

the Florida Department of Juvenile Justice. The Department enrolled him in a

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residential substance-abuse program operated by Gulf Coast Treatment Center,

Inc., under a contract with the Department.

While at Gulf Coast, Mr. Clegg battled drug withdrawal and mental illness. 

Gulf Coast gave him drugs to prevent aggressive outbursts but otherwise largely

ignored his medical needs. Mr. Clegg’s health deteriorated dramatically. After

two months at the facility, Mr. Clegg had lost 60 pounds, could not eat without

difficulty, could not control his bladder, and could not walk or go to the restroom

without assistance. Mr. Clegg was sometimes seen rocking back and forth, and on

at least one occasion he told a Gulf Coast employee that he needed help, but to no

avail.

II. The Claims Against the Gulf Coast Employees

Mr. Clegg asserts that Gulf Coast and its employees violated his

constitutional rights by disregarding his serious medical needs. The Supreme

Court has said that deliberate indifference to an adult convicted inmate’s serious

medical needs violates the Constitution. See Estelle v. Gamble, 429 U.S. 97, 104,

97 S. Ct. 285, 50 L. Ed. 2d 251 (1976). Deliberate indifference to a juvenile

detainee’s serious medical needs likewise violates the Constitution. See Hill v.

DeKalb Reg’l Youth Det. Ctr., 40 F.3d 1176, 1185-92 (11th Cir. 1994), overruled

on other grounds by Hope v. Pelzer, 536 U.S. 730, 122 S. Ct. 2508, 153 L. Ed. 2d

666 (2002); Morales v. Turman, 562 F.2d 993 (5th Cir. 1977). And for this

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purpose, a person’s serious medical needs can include the effective treatment of

drug withdrawal and mental illness. See, e.g., Lancaster v. Monroe Cnty., Ala.,

116 F.3d 1419, 1425-26 (11th Cir. 1997) (withdrawal); Young v. City of Augusta,

Ga., 59 F.3d 1160, 1172 (11th Cir. 1995) (mental illness); United States ex rel.

Walker v. Fayette Cnty., Pa., 599 F.2d 573, 575-76 (3d Cir. 1979) (withdrawal). 

Although the complaint does not contain extensive factual detail, it does

allege that each employee defendant was personally involved in Mr. Clegg’s

treatment and care, that each observed his health deteriorate dramatically, and that

each did very little or nothing to remedy it. In their motions to dismiss, the

employees do not dispute that the first amended complaint adequately states

deliberate-indifference claims against them. It plainly does.

The employees do assert, however, that they are entitled to qualified

immunity. Qualified immunity applies to damages claims against public

employees in their individual capacities. It protects “all but the plainly

incompetent or those who knowingly violate the law.” Malley v. Briggs, 475 U.S.

335, 341, 106 S. Ct. 1092, 89 L. Ed. 2d 271 (1986); see generally Hope, 536 U.S.

730; Harlow v. Fitzgerald, 457 U.S. 800, 102 S. Ct. 2727, 73 L. Ed. 2d 396 (1982).

 Thus a public employee may be held individually liable only if the employee

violates clearly established law.

But these defendants were not public employees. Qualified immunity does

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not protect an employee of a government contractor. See Richardson v. McKnight,

521 U.S. 399, 117 S. Ct. 2100, 138 L. Ed. 2d 540 (1997) (holding that prison

guards employed by a private prison-management firm were not eligible for

qualified immunity); Hinson v. Edmond, 192 F.3d 1342, 1346-47 (11th Cir. 1999)

(holding that a private physician who provided medical services to inmates under a

government contract was not eligible for qualified immunity); see also Harrison v.

Ash, 539 F.3d 510, 521-25 (6th Cir. 2008); Jensen v. Lane Cnty., 222 F.3d 570,

578-80 (9th Cir. 2000) (denying qualified immunity to a private psychiatrist hired

to evaluate patients detained at a county mental-health hospital); Halvorsen v.

Baird, 146 F.3d 680, 685-86 (9th Cir. 1998) (denying qualified immunity to

employees of a private detoxification center operating under a government

contract); Bender v. Gen. Servs. Admin., 539 F. Supp. 2d 702, 714 (S.D.N.Y. 2008)

(collecting cases and observing that “circuit courts have generally rejected

qualified immunity for private parties operating under contract for the

government”).

The claims against the Gulf Coast employees in their individual capacities

thus are not barred by qualified immunity. A claim against the employees in their

official capacities also would not be barred by qualified immunity, but the first

amended complaint does not seem to assert a claim against the employees in their

official capacities, and any such claim would properly be subject to dismissal as

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redundant. See Kentucky v. Graham, 473 U.S. 159, 165, 105 S. Ct. 3099, 87 L. Ed.

2d 114 (1985) (noting that an official-capacity claim is just “another way of

pleading an action against an entity”); Busby v. City of Orlando, 931 F.2d 764, 776

(11th Cir. 1991) (approving the dismissal of official-capacity defendants whose

presence was merely redundant to the naming of an institutional defendant).

I construe the first amended complaint as asserting only individual-capacity

claims against the Gulf Coast employees. And I deny their motion to dismiss.

III. The Claim Against Gulf Coast

Gulf Coast bases its motion to dismiss on Eleventh Amendment immunity. 

The Eleventh Amendment bars a private person from asserting a claim against a

state in federal court unless the state has waived—or Congress has validly

abrogated—the immunity. The Department waived its immunity by removing this

case to federal court. See Lapides v. Bd. of Regents of Univ. Sys., 535 U.S. 613,

122 S. Ct. 1640, 152 L. Ed. 2d 806 (2002). But Gulf Coast was not a party when

the action was removed and thus did not waive any immunity that it could validly

assert separately from the Department. 

The difficulty is that Gulf Coast is a private entity. Gulf Coast says it can

invoke the state’s Eleventh Amendment immunity because it treated Mr. Clegg

under a contract with the state. But the law of the circuit—and of every other

circuit that has addressed the issue—is to the contrary. In Rosario v. American

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Corrective Counseling Services, Inc., 506 F.3d 1039 (11th Cir. 2007), a Florida

state attorney’s office—an arm of the state—contracted with a private company to

collect restitution for victims of bad checks. Individuals the contractor accused of

writing bad checks sued the contractor under the Fair Debt Collection Practices

Act. The contractor asserted it had Eleventh Amendment immunity, but the

Eleventh Circuit disagreed. The decision is controlling here. 

Rosario held inapplicable the only appellate decision extending Eleventh

Amendment immunity to a private contractor. See Shands Teaching Hosp. &

Clinics, Inc. v. Beech St. Corp., 208 F.3d 1308 (11th Cir. 2000). The Rosario court

first noted that Shands was an outlier. See Rosario, 506 F.3d at 1044; see also Del

Campo v. Kennedy, 517 F.3d 1070, 1079-80 (9th Cir. 2008) (surveying the case

law and noting that every circuit except the Eleventh has “denied state sovereign

immunity to private entities, more or less categorically”); Takle v. Univ. of Wis.

Hosp. & Clinics Auth., 402 F.3d 768 (7th Cir. 2005); Richard Frankel, Regulating

Privatized Government Through § 1983, 76 U. Chi. L. Rev. 1449, 1457 (2009)

(noting that “private entities can be sued for damages both when they contract with

a municipality and when they contract with a state, since private entities are not

entitled to Eleventh Amendment immunity”). Indeed, Shands is apparently the

only appellate decision anywhere affording a private entity Eleventh Amendment

immunity. See Del Campo, 517 F.3d at 1080. 

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Moreover, the Rosario court distinguished Shands on its facts. The

contractor in Shands administered a state health insurance plan. But the state

retained final decision-making authority, and any judgment against the contractor

would have been paid from the state treasury. Neither factor was present in

Rosario, so the court rejected the contractor’s assertion of Eleventh Amendment

immunity. See Rosario, 506 F.3d at 1042, 1046. 

The same analysis is fully applicable here. Gulf Coast has not suggested that

the state exercised supervisory authority over its operations other than at the macro

level—that is, by entering a contract with various terms as occurs every time a state

contracts with a private entity. Gulf Coast has not suggested that the state retained

final decision-making authority over matters of the kind at issue; instead, Gulf

Coast made the final decision whether and how to treat an individual patient’s

medical condition. And Gulf Coast has not suggested that the state will be

responsible for any judgment entered against Gulf Coast. For all that appears in

this record, Gulf Coast is a typical government contractor not entitled to Eleventh

Amendment immunity. 

Similarly, Gulf Coast cannot properly invoke Will v. Michigan Department

of State Police, 491 U.S. 58, 109 S. Ct. 2304, 105 L. Ed. 2d 45 (1989). Section

1983 allows a claim against a “person.” Will held that a state is not a “person”

who can be sued under the statute. Id. at 70. But just as Gulf Coast cannot invoke

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the state’s Eleventh Amendment immunity, it also cannot escape being treated as a

“person.” For this purpose, Will and the Eleventh Amendment are coextensive. 

See id. at 70; see also Howlett v. Rose, 496 U.S. 356, 365, 110 S. Ct. 2430, 110 L.

Ed. 2d 332 (1990); Pittman v. Or. Emp’t Dep’t, 509 F.3d 1065, 1072 (9th Cir.

2007); Johnson v. SAIF Corp., 164 P.3d 278, 282-84 (Or. 2007).

Gulf Coast’s motion to dismiss does not challenge the first amended

complaint on any other ground. The motion is unfounded.

IV. The Claims Against the Department

Mr. Clegg’s only claim against the Department is for common-law

negligence. The claim has three parts: direct liability for the Department’s

negligence in placing Mr. Clegg at Gulf Coast, vicarious liability for Gulf Coast’s

nonmedical negligence, and vicarious liability for Gulf Coast’s medical

negligence. 

A. Direct Liability

Mr. Clegg asserts that the Department was negligent in placing him at Gulf

Coast because the facility’s staff is inadequately trained. The Department says

state sovereign immunity attaches to placement decisions of this kind. 

The Department has it right. The Florida Supreme Court so held in

Department of Health and Rehabilitation Services v. B.J.M., 656 So. 2d 906, 912-

13 (Fla. 1995). See Robert W. Mason, Florida Juvenile Law & Practice § 8:13

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(11th ed. 2009) (citing B.J.M. for the proposition that “placements decisions [made

by the Department] are . . . immune from tort liability”); cf. Dep’t of Health &

Rehabilitative Servs. v. Whaley, 574 So. 2d 100, 104 (Fla. 1991) (holding that

sovereign immunity did not attach to a detention-center employee’s decision to

place the plaintiff in a cell with dangerous detainees). 

The direct negligence claim against the Department thus will be dismissed. 

B. Vicarious Liability for Nonmedical Negligence

Mr. Clegg asserts that the Department is vicariously liable for the negligence

of Gulf Coast and its employees. The Department seeks dismissal of this claim on

one ground. It asserts that because the constitutional claims against Gulf Coast and

its employees must be dismissed, so, too, must the vicarious negligence claim. 

The argument fails for at least two reasons. First, even if the constitutional

claims against Gulf Coast and its employees were dismissed, it of course would not

follow that the Department could not be held liable under state tort law for Gulf

Coast’s negligence. One can be negligent without acting unconstitutionally. See

West v. Tillman, 496 F.3d 1321, 1328 (11th Cir. 2007). Second, the argument fails

because, as indicated above, the constitutional claims against Gulf Coast and its

employees are not properly subject to dismissal.

C. Vicarious Liability for Medical Negligence

The Department asserts that the medical-negligence claim must be dismissed

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for failure to provide the notice required by § 766.106(2), Florida Statutes. But the

first amended complaint alleges that all required notices were given. Similarly, in

his response to the motion to dismiss, Mr. Clegg specifically says he complied with

§ 766.106(2). The medical-negligence claim cannot properly be dismissed on this

ground on this motion or based on this record. 

VI. The Claim of Mr. Clegg’s Mother

Mr. Clegg’s mother Sharon Allen asserts a claim for loss of filial

consortium. Florida law recognizes such a claim. See United States v. Dempsey,

635 So. 2d 961 (Fla. 1994). The defendants do not contend otherwise. 

Ms. Allen also apparently seeks to recover medical expenses. The

defendants have moved to dismiss the claim for lack of specificity. See Fed. R.

Civ. P. 9(g) (providing that “[i]f an item of special damage is claimed, it must be

specifically stated”). 

The allegation at issue is not a model of clarity. I understand it as a claim

for medical expenses incurred as a result of the defendants’ challenged conduct. I

deny the motion to dismiss, and I do not strike the allegation. But Ms. Allen

should take note: compliance with Federal Rule of Civil Procedure 26(a)(1)(A)(iii)

is mandatory, and any special damages not adequately disclosed under the rule will

not be recoverable.

VII. Conclusion

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For these reasons, 

IT IS ORDERED: 

1. The Department’s motion to dismiss, ECF No. 18, is GRANTED IN

PART and DENIED IN PART. The claim that the Department negligently placed

Mr. Clegg at Gulf Coast is dismissed with prejudice. I do not direct the entry of

judgment under Federal Rule of Civil Procedure 54(b). The other claims against

the Department are not dismissed.

2. The other defendants’ motions to dismiss, ECF Nos. 18 and 27, are

DENIED.

SO ORDERED on August 23, 2010.

s/Robert L. Hinkle 

United States District Judge

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