IN THE UNITED STATES DISTRICT COURT FOR THE 

NORTHERN DISTRICT OF FLORIDA 

Tallahassee Division 

DAVID CLEGG and. 

SHARON ALLEN 

Plaintiffs, 

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

DEPARTMENT OF JUVENILE JUSTICE, 

GULF COAST TREATMENT CENTER, INC., 

ASHER ZASLAW, JOHANA PEREZ, 

KEITH WILLIAMS, KELBY RAMER, 

DONNA BAREFOOT, LOURDES QUIRAY, AND 

ROBERT ELLIS, 

Defendants. 

/ 

DEFENDANTS DEPARTMENT OF JUVENILE JUSTICE, GULF COAST 

TREATMENT CENTER, INC., ASHER ZASLAW, JOHANA PEREZ, KEITH 

WILLIAMS, KELBY RAMER, DONNA BAREFOOT, AND ROBERT ELLIS' 

MOTION TO DISMISS PLAINTIFFS' FIRST AMENDED COMPLAINT 

FOR DAMAGES AND INCORPORATED MEMORANDUM OF LAW 

Defendants Department of Juvenile Justice ("Defendant DJJ"), Gulf Coast 

Treatment Center, Inc. ("Defendant Gulf Coast"), Asher Zaslaw ("Defendant Zaslaw"), 

Johana Perez ("Defendant Perez"), Keith Williams ("Defendant Williams"), Kelby 

Ramer ("Defendant Ramer"), Donna Barefoot ("Defendant Barefoot"), and Robert Ellis 

("Defendant Ellis"), pursuant to Federal Rule of Civil Procedure 12(b)(6), move to 

dismiss Plaintiffs' First Amended Complaint For Damages filed by Plaintiffs, David 

Case 4:10-cv-00081-RH-WCS Document 18 Filed 04/26/10 Page 1 of 18
CLEGG V DEPARTMENT OF JUVENILE JUSTICE, et. al 

Case No. 4: I Ocv8 I -RH/WCS 

Clegg ("Plaintiff Clegg") and Sharon Allen ("Plaintiff Allen"), and as grounds therefore 

states as follows: 

I. Introduction and Summary of Argument 

This case stems from Plaintiff David Clegg's commitment to the custody of the 

Department of Juvenile Justice and subsequent placement in the Adolescent Substance 

Abuse Program at Gulf Coast Treatment Center, Inc. located in Fort Walton Beach, 

Florida, between August 14, 2008 and December 12, 2008. 

In Plaintiffs' First Amended Complaint for Damages, Plaintiffs have asserted the 

following claims: 

I) A Claim against Gulf Coast Treatment Center, Inc. for "Civil Rights 

Violations Pursuant to 42 U.S.C. § 1983 (Count I); 

2) "Civil Rights Claims Against Defendant Zaslaw" (Count II); 

3) "Civil Rights Claims Against Defendant Perez" (Count III); 

4) "Civil Rights Claims Against Defendant Williams" (Count IV); 

5) "Civil Rights Claims Against Defendant Ramer" (Count V); 

6) "Civil Rights Claims Against Defendant Barefoot" (Count VI); 

7) "Civil Rights Claims Against Defendant Quiray" (Count VII); 

8) "Civil Rights Claims Against Defendant Ellis" (Count VIII); 

9) A direct negligence claim against Defendant DJJ under state law 

(Count IX-A); 

10) A vicarious liability claim against Defendant DJJ under state law 

Page 2 of 18 

Case 4:10-cv-00081-RH-WCS Document 18 Filed 04/26/10 Page 2 of 18
CLEGG V. DEPARTMENT OF JUVENILE JUSTICE, et. al 

Case No. 4:10cv81-RH/WCS 

(Count IX-B); 

11) A claim for medical negligence against Defendant DJJ under state law 

(Count IX-C); and 

12) A special damages claim of Plaintiff Allen (Count X), although it is not 

clear from Plaintiffs' First Amended Complaint For Damages 

those Defendants against whom the claims of Plaintiff Allen are 

asserted. 

None of Plaintiffs' claims sets forth a valid cause of action, and therefore pursuant 

to Rule 12(b)(6) of the Federal Rules of Civil Procedure, the Defendants respectfully 

request that the Court dismiss Plaintiffs' First Amended Complaint For Damages. 

First, Count I of Plaintiffs' First Amended Complaint is barred by the Eleventh 

Amendment to the United States Constitution and should therefore be dismissed. 

Second, Counts II, III, IV, V, VI, and VIII are likewise barred by the Eleventh 

Amendment to the United States Constitution and should be dismissed on this basis. 

Further, the Defendants against whom these claims are asserted are entitled to Qualified 

Immunity and Counts II, III, IV, V, VI, and VIII should be dismissed on this ground also. 

Third, Plaintiffs' direct negligence state law claim brought against the Department 

of Juvenile Justice in Count IX (A) is not actionable under Florida law and should 

therefore be dismissed. 

Fourth, Plaintiffs' vicarious liability claim against the Department of Juvenile 

Justice in Count IX (B) should be dismissed as Plaintiffs have failed to state a cause of 

Page 3 of 18 

Case 4:10-cv-00081-RH-WCS Document 18 Filed 04/26/10 Page 3 of 18
CLEGG V. DEPARTMENT OF JUVENILE JUSTICE, et. al 

Case No. 4:10cv81-RH/WCS 

action against Gulf Coast Treatment Center, Inc., the Department of Juvenile Justice, or 

the individual Defendants and therefore no ground exists upon which Plaintiffs could 

pursue a vicarious liability claim. 

Fifth, Plaintiffs have failed to comply with the pre-suit notice requirements of 

Chapter 766, Florida Statutes, prior to bringing a medical negligence claim against the 

Department of Juvenile Justice thus Count IX (C) of Plaintiffs First Amended Complaint 

should be dismissed. 

Sixth, Plaintiff Sharon Allen has failed to plead special damages as required by 

Federal Rule of Civil Procedure 9 (g) and therefore Count X of Plaintiffs' Complaint 

should be dismissed. 

For the reasons set forth herein, Plaintiff's First Amended Complaint for Damages 

should be dismissed. 

II. Rule 12 (b)(6) STANDARDS 

A Motion to Dismiss, pursuant to Rule 12(b)(6), should be granted when it is clear 

that the Plaintiffs can prove no set of facts in support of the claims in the Complaint. 

Marshall County Board of Education v. Marshall County Gas District, 992 F.2d 1171, 

1174 (11 thCir. 1993). The Court should dismiss a Complaint under Rule 12 (b)(6) when, 

on the basis of a dispositive issue of law, no construction of the factual allegations will 

support the cause of action. Id. In considering a Rule 12 (b)(6) motion, the Court must 

accept the well-pleaded facts as true and resolve them in the light most favorable to the 

Page 4 of 18 

Case 4:10-cv-00081-RH-WCS Document 18 Filed 04/26/10 Page 4 of 18
CLEGG V. DEPARTMENT OF JUVENILE JUSTICE, et. al 

Case No. 4:10cv81-RH/WCS 

Plaintiffs. St. Joseph's Hospital, Inc. v. Hospital Corp. of America, 795 F. 2d. 948, 954 

(11 thCir.) 1986). When the allegations contained in a Complaint are merely conclusory, 

however, and fail to set forth facts which, if proved, would warrant the relief sought, it is 

proper to dismiss for failure to state a claim. Davidson v. Georgia, 622 F.2d. 895, 897 

(11 th Cir. 1980). 

The Court is generally constrained to review the allegations as contained within 

the four corners of the Cdmplaint and may not consider matters outside the pleading 

without converting the defendant's motion into one for summary judgment. Crowell v. 

Morgan Stanley Dean Witter Services Co., Inc., 870 F. Supp.2d 1287, 1290 (S.D. Fla. 

2000). However, in § 1983 actions where government actors sued in their individual 

capacities have available to them the defense of qualified immunity, the Eleventh Circuit 

has heightened the pleading requirements. G.J.R. Investments, Inc. v. County of 

Escambia, 132 F.3d 1359, 1367 (11 thCir. 1998). 

In Oladeinde v. City of Birmingham, 963 F.2d 1481 (11 thCir. 1992), the Eleventh 

Circuit held that in cases where qualified immunity is implicated, "some factual detail is 

necessary, especially if [the court is] to be able to see that the allegedly violated right was 

clearly established when the alleged wrongful acts occurred." Id. at 1485. "More than 

mere conclusory notice pleading is required... [A] Complaint will be dismissed as 

insufficient where the allegations it contains are vague and conclusory." Fullrnan v. 

Graddick, 739 F.2d 553, 556-57 (11 thCir. 1984). 

Page 5 of 18 

Case 4:10-cv-00081-RH-WCS Document 18 Filed 04/26/10 Page 5 of 18
CLEGG V. DEPARTMENT OF JUVENILE JUSTICE, et. al 

Case No. 4:10cv81-RH/WCS 

Accordingly, in determining whether the Plaintiffs have properly stated a claim for 

civil rights violations as to the individual defendants, the Court must be guided by both 

the regular 12(b)(6) standard and the heightened pleading requirement. G.J.R. 

Investments, Inc. 132 F.3d at 1367; see also, Walker v. Prieto, 414 F.Supp. 1148, 1151 

(S.D. Fla. 2006). 

In the instant matter, construing the allegations of the First Amended Complaint in 

the light most favorable to Plaintiffs reveals no set of facts upon which a cause of action 

is grounded against Defendants Department of Juvenile Justice, Gulf Coast Treatment 

Center, Inc., Asher Zaslaw, Johana Perez, Keith Williams, Kelby Ramer, Donna Barefoot 

or Robert Ellis. Counts I, II, III, IV, V, VI, VIII, IX and X should therefore be dismissed 

as a matter of law. 

III. ARGUMENT AND MEMORANDUM OF LAW 

A. 

Count I of Plaintiffs' First Amended Complaint against Gulf Coast Treatment 

Center, Inc. Is Barred by the Eleventh Amendment to the United States 

Constitution 

In Count I of Plaintiffs' First Amended Complaint, Plaintiffs asserts a claim 

against Gulf Coast Treatment Center, Inc. pursuant to 42 § 1983 for the alleged violation 

of David Clegg's civil rights. Specifically, Plaintiffs allege that staff at Gulf Coast 

Treatment Center, Inc., including Defendants Zaslaw, Perz, Williams, Ramer, Barefoot, 

Quiray, and Ellis, were aware of Plaintiffs' mental health problems but chose to ignore 

them. First Amended Compl. If 37. Plaintiffs further allege that as a result of Gulf Coast 

Treatment Center's disregard of and indifference to David Clegg's liberty interests and 

Page 6 of 18 

Case 4:10-cv-00081-RH-WCS Document 18 Filed 04/26/10 Page 6 of 18
CLEGG V. DEPARTMENT OF JUVENILE JUSTICE, et. al 

Case No. 4:10cv81-RH/WCS 

due process rights to be safe and free from harm, David Clegg's medical needs were 

ignored and he was subjected to ridicule and inattention. First Amended Compl. ¶ 38. As 

part of the allegations in count I, Plaintiffs reallege paragraphs through 34 of Plaintiffs' 

First Amended Complaint. Plaintiffs allege in Paragraph 8 of the First Amended 

Complaint that Gulf Coast Treatment Center, Inc. had a contractual relationship with DJJ 

whereby Gulf Coast Treatment Center, Inc. acted as an express contractual agent of DJJ. 

First Amended Compl. If 8. Plaintiffs further allege that DJJ placed Plaintiff in the Gulf 

Center Adolescent Substance Abuse Program, with DJJ maintaining legal custody of the 

Plaintiff. First Amended Compl. ¶ 18. Plaintiffs also alleges that the program to which 

Plaintiff Clegg was admitted was operated on DJJ's behalf by Gulf Center. First 

Amended Compl. ¶ 19. Plaintiffs further allege that at all times, program officials at Gulf 

Center were acting on behalf of Gulf Center and on behalf of DJJ. First Amended Compl. 

22. Specifically, Plaintiffs allege that Defendants Zaslaw, Perez, Williams, Ramer, 

Barefoot, and Ellis were acting on behalf of DJJ and Gulf Center. First Amended Compl. 

1124. Plaintiffs also allege that at all times material, Defendant DJJ acted through its own 

employees and through its contract agent Gulf Center's employees and agents. First 

Amended Compl. ¶ Plaintiffs further assert that pursuant to Section 768.28, Florida 

Statutes, subcontractors of DJJ are deemed statutory agents of the State. First Amended 

Compl. ¶ 29. Further, Plaintiffs allege that at all times, Defendant facility staff were 

acting in the course and scope of their employment at Gulf Center and were within the 

course and scope of this agency on behalf of DJJ. First Amended Compl. ¶ 30. 

Page 7 of 18 

Case 4:10-cv-00081-RH-WCS Document 18 Filed 04/26/10 Page 7 of 18
CLEGG V. DEPARTMENT OF JUVENILE JUSTICE, et. al 

Case No. 4:10cv81-RH/WCS 

The Eleventh Amendment to the United States Constitution is an absolute bar to 

suit by an individual against a State or its agencies in federal court, unless the State has 

waived immunity from suit in federal court or Congress has abrogated this immunity. 

Gamble v. Florida Department of Health and Rehabilitative Services, 779 F.2d 1509 

(11 thCir. 1986). Florida has not waived its Eleventh Amendment immunity as to federal 

civil rights actions. Id. Plaintiffs may not therefore maintain a claim against DJJ in 

federal court predicated on 42 U.S.C. § 1983. See Florida Dep't of Health & 

Rehabilitative Services v. Florida Nursing Home Ass 'n., 450 U.S. 147 (1981) (finding 

that HRS is the equivalent of the State of Florida for Eleventh Amendment Purposes). 

The Eleventh Circuit has held that when a private entity contracts with a county to 

provide medical services to inmates, it performs a function traditionally within the 

exclusive prerogative of the state. Ancata v. Prison Health Services, Inc. 769 F.2d. 700 

(11 thCir. 1985). The 11 thCircuit has further held in Buckner v. Toro, 116 F.3d 450 (11 th 

Cir. 1997), that when a private entity contracts to provide medical services to inmates, it 

not only performs a function traditionally within the exclusive prerogative of the state, 

but also becomes the functional equivalent of the government entity. Id. Although Ancata 

and Buckner involved suits against entities contracted with county governments and 

county officials, surely under Ancata, Buckner, and Florida Dep't of Health & 

Rehabilitative Services, cited above, agencies contracted with the state and performing 

functions traditionally within the exclusive prerogative of the state are entitled to be 

treated as the functional equivalent of the state. Therefore, Defendant Gulf Coast 

Page 8 of 18 

Case 4:10-cv-00081-RH-WCS Document 18 Filed 04/26/10 Page 8 of 18
CLEGG V. DEPARTMENT OF JUVENILE JUSTICE, et. al 

Case No. 4:10cv81-RH/WCS 

Treatment Center, Inc., as an agent of the state, enjoys Eleventh Amendment Immunity 

from suit in federal court under 42 U.S.C. § 1983 and Count I of Plaintiffs' First 

Amended Complaint must therefore be dismissed. 

Moreover, the Supreme Court has held that neither a State nor its officials acting 

in their official capacities are "persons" for purposes of bring a claim under 42 U.S.C. § 

1983. Will v. Michigan Department of State Police, 491 U.S. 58 (1989). Section 1983 

provides, in pertinent part, that "Every person who, under color of any statute, ordinance, 

regulation, custom, or usage, of any State or Territory or the District of Columbia, 

subjects, or causes to be subjected, any citizen of the United States or other person within 

the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured 

by the Constitution and laws....." 42 U.S.C. § 1983 (emphasis added). Therefore, Gulf 

Coast Treatment Center, Inc., as an agent of the state to be treated as the functional 

equivalent of the state for purposes of assessing whether Eleventh Amendment immunity 

bars suit against it under 42 U.S.C. § 1983 in federal court, is likewise not considered a 

"person." Therefore Count I of Plaintiffs' First Amended Complaint should be dismissed 

on this ground as well. 

B. 

Counts II, III, IV, V, VI, And VIII Of Plaintiffs' First Amended Complaint Are 

Barred By The Eleventh Amendment To The Unites States Constitution And By 

The Doctrine Of Qualified Immunity 

In Counts II of Plaintiffs' First Amended Complaint, Plaintiffs assert a Civil 

Rights Claim Against Defendant Zaslaw. First Amended Compl. II 40-44. Plaintiffs do 

not specify precisely what civil rights violation is being alleged but the allegations 

Page 9 of 18 

Case 4:10-cv-00081-RH-WCS Document 18 Filed 04/26/10 Page 9 of 18
CLEGG V. DEPARTMENT OF JUVENILE JUSTICE, et. al 

Case No. 4:10cv81-RH/WCS 

contained within Count II arise out of the same nucleus of operative facts plead 

throughout Plaintiffs' First Amended Complaint. Therefore, for purposes of the instant 

Motion to Dismiss, Defendants understand Plaintiffs' claim against Defendant Zaslaw to 

also be brought under 42 U.S.C. § 1983. Plaintiffs allege that Defendant Zaslaw was a 

state actor relative to the needs of Plaintiff Clegg, that she failed to perform needed tests 

and arrange for needed care of Plaintiff Clegg, and acted with deliberate indifference to 

the rights and needs of Plaintiff Clegg. First Amended Compl. IN 40-42. Plaintiffs further 

allege that as a result of Defendant's disregard of and indifference to Plaintiff s 

constitutionally protected liberty interests to be provided proper care and to be free and 

safe from harm, that Plaintiff Clegg's medical needs were ignored, that he was subjected 

to ridicule and inattention, that he had trouble eating and lost weight, and that he had 

trouble controlling his bladder and bowels. First Amended Compl. ¶ 43. 

Plaintiffs make nearly identical allegations against Defendant Perez in Count III 

(First Amended Compl. ¶46); Defendant Williams in Count IV (First Amended Compl. ¶ 

50); Defendant Ramer in Count V (First Amended Compl. ¶ 53); Defendant Barefoot in 

Count VI (First Amended Compl. ¶ 56); and Defendant Ellis in Count VIII (First 

Amended Compl. ¶ 65). Plaintiffs also allege that all individual Defendants were acting 

within the course and scope of their employment at Gulf Coast Treatment Center and 

were acting as agents of DJJ. First Amended Compl. TR 22, 24, 30. Therefore, the 

arguments with regard to the dismissal of Counts II, III, IV, V, VI, and VIII of Plaintiffs' 

First Amended Complaint are identical. 

Page 10 of 18 

Case 4:10-cv-00081-RH-WCS Document 18 Filed 04/26/10 Page 10 of 18
CLEGG V. DEPARTMENT OF JUVENILE JUSTICE, et. al 

Case No. 4:10cv81-RH/WCS 

First, because Plaintiffs are suing the individual Defendants in their official 

capacities as employees of Gulf Coast Treatment Center and for acts taken within the 

course and scope of Gulf Coast's duties as the statutory agent of the Department of 

Juvenile Justice, Defendants do not fall within the definition of "persons" under 42 

U.S.C. § 1983, pursuant to Will v. Michigan Department of State Police, 491 U.S. 58 

(1989). 

Further, the 11 thCircuit has determined that although suits for damages under 42 

U.S.C. § 1983 against state officers in their individual capacities are generally peimitted, 

suits against officers in their official capacities are generally barred. Gamble v. Florida 

Department of Health And Rehabilitative Services, 779 F.2d 1509 (11thCir. 1986). The 

Court in Gamble stated that in determining whether the officer is being sued in their 

official or individual capacity, the answer turns on the question of whether the plaintiff is 

seeking relief from the state's coffers or from the individual's assets. Id. Construing the 

allegations of Plaintiffs' First Amended Complaint in the most liberal manner, Plaintiffs 

allegations make clear that the individual Defendants acted within the course and cope of 

their employment with Gulf Coast Treatment Center, an agent of the State. Therefore, the 

most reasonable interpretation of Plaintiffs' allegations are that the individual Defendants 

are being sued in their official capacities as employees of a state agent. Therefore, Counts 

II, III, IV, V. VI and VIII of Plaintiffs' First Amended Complaint should be dismissed on 

this ground as well. 

Page 11 of 18 

Case 4:10-cv-00081-RH-WCS Document 18 Filed 04/26/10 Page 11 of 18
CLEGG V. DEPARTMENT OF JUVENILE JUSTICE, et. al 

Case No. 4:10cv81-RH/WCS 

However, even if the Court determines that Defendants Zaslaw, Perez, Williams, 

Ramer, Barefoot, and Ellis are being sued in their individual capacities, Defendants are 

entitled to qualified immunity. Under the doctrine of qualified immunity, Plaintiff must 

show that Defendants violated clearly established federal or constitutional rights. Adams 

v. Poag, 61 F.3d 1537 (11 thCir. 1995). Government actors can be stripped of qualified 

immunity only when all reasonable government actors would know that the challenged 

' 

discretionary conduct violates federal law. Id. In a claim for deliberate indifference to a 

prisoner's medical needs, Plaintiff must show that the Defendant's actions violated a 

clear and specific standard that similarly situated reasonable health care providers would 

have known would violate a clear constitutional or federal right. Id. Mere negligence in 

diagnosing or treating a medical condition is an insufficient basis for imposing liability 

on a claim of medical mistreatment under the Eighth Amendment. Id. "Medical treatment 

violates the Eighth Amendment only when it is so grossly incompetent, inadequate, or 

excessive as to shock the conscience or to be intolerable to fundamental fairness." Harris 

v. Thigpen, 941 F.2d 1495, 1505 (11 thCir. 1991). A difference in medical opinion 

between medical diagnosis or course of treatment is not enough to show deliberate 

indifference. Gross v. White, 340 Fed. Appx. 527 (11 thCir. 2009). 

Plaintiffs have set forth no allegations that show that Defendants violated a clear 

and specific standard that would rise to the level of a constitutional violation in the 

provision of services to David Clegg. Therefore, Counts II, III, IV, V. VI and VIII of 

Plaintiffs' First Amended Complaint should also be dismissed for this reason. 

Page 12 of 18 

Case 4:10-cv-00081-RH-WCS Document 18 Filed 04/26/10 Page 12 of 18
CLEGG V. DEPARTMENT OF JUVENILE JUSTICE, et. al 

Case No. 4:10cv81-RH/WCS 

C. 

Count IX A. of Plaintiffs' First Amended Complaint Must Be Dismissed As Florida 

Law Does Not Permit a Cause of Action Against the Department of Juvenile Justice 

Based Upon Its Placement and Treatment Decisions 

Count IX A. of Plaintiffs' First Amended Complaint alleges that the Department 

of Juvenile Justice had a duty to provide for the needs of juveniles committed to its 

custody and had a duty to keep Plaintiff Clegg safe and free from harm. First Amended 

Compl. ¶ 67-71. Plaintiffs further allege that the Department of Juvenile Justice failed to 

keep plaintiff safe, inappropriately placed Plaintiff Clegg into the custody of Gulf Center, 

failed to monitor his care, and failed to protect him from ridicule and embarrassment. The 

gravamen of Plaintiffs' allegations in Count IX A is that the Department inappropriately 

placed David Clegg and failed to appropriately treat David Clegg once in custody. Such a 

claim is not permitted by Florida law. In Department of Health And Rehabilitative 

Services v. B.J.M., 656 So.2d 906, the Florida Supreme Court determined that decisions 

of the State regarding placement and decisions on how to properly care for a juvenile, 

including how to rehabilitate, assess for treatment, and conduct that treatment, are 

discretionary judgmental decisions to be made by the State agency charged with such 

responsibility and further that such agencies are therefore immune from tort liability by 

virtue of sovereign immunity. 

Here, Plaintiffs challenge the placement of David Clegg at Gulf Coast Treatment 

Center and the course of treatment prescribed for David during his residency at Gulf 

Page 13 of 18 

Case 4:10-cv-00081-RH-WCS Document 18 Filed 04/26/10 Page 13 of 18
CLEGG V. DEPARTMENT OF JUVENILE JUSTICE, et. al 

Case No. 4:10cv81-RH/WCS 

Coast, the very types of decisions that are immune from tort liability under B.J.M.. Id. 

Consequently, Count IX A of Plaintiffs' Complaint must be dismissed. 

D.

Count IX B. Of Plaintiffs' First Amended Complaint Must Be Dismissed As No 

Legal Basis Exists For A Vicarious Liability Claim Against the Department Of 

Juvenile Justice 

Count IX B of Plaintiffs' First Amended Complaint fails to set forth 

specific factual allegations distinct from the allegations set forth in Plaintiffs' other 

Counts. The facts set forth in Paragraphs 74-76 of Plaintiffs' First Amended Complaint is 

based upon the same nucleus of operative facts alleged throughout the First Amended 

Complaint. The allegations of Count IX B of Plaintiffs' First Amended Complaint is 

inextricably intertwined with Counts I-VII and Counts IX A and C, and for the reasons 

set forth herein for the dismissal of those Counts, Count IX B must fail along with them. 

E.

Count IX C. Of Plaintiffs' First Amended Complaint Must Be Dismissed as 

Plaintiffs Have Failed To Comply With Chapter 766, Florida Statutes 

Count IX C. of Plaintiffs' First Amended Complaint (Medical Negligence Claim 

Against DJJ) is predicated on the alleged negligence of the Department of Juvenile 

Justice in failing to provide proper medical care to Plaintiff Clegg. Plaintiffs allege that 

DJJ, acting through its agents, deviated from acceptable standards of care and did not 

provide Plaintiff Clegg with needed psychological care and treatment. First Amended 

Compl. IT 78. Plaintiffs' claim in Count IX C. for medical negligence clearly sounds in 

Page 14 of 18 

Case 4:10-cv-00081-RH-WCS Document 18 Filed 04/26/10 Page 14 of 18
CLEGG V. DEPARTMENT OF JUVENILE JUSTICE, et. al 

Case No. 4:10cv81-RH/WCS 

medical or nursing malpractice based on the allegations in Plaintiffs' First Amended 

Complaint. Chapter 766, Florida Statutes, requires that prior to filing a complaint for 

medical negligence, a claimant shall notify each prospective defendant of the intent to 

initiate litigation for medical negligence. Fla. Stat. § 766.106(2). This statute defines a 

claim for medical negligence as a claim, arising out of the rendering of, or failure to 

render, medical care or services. Fla. Stat. § 766.106 (1)(a). Compliance with Chapter 

766 is a condition precedent prior to the filing of a medical negligence claim. Bruce H. 

Lynn, M.D., P.A., v. Miller, App. 2 Dist., 498 So.2d 1011 (1986). The purpose of the 

Chapter 766 pre-suit notice and screening requirements is to facilitate resolution of 

medical malpractice claims. Boyd v. Becker, 627 So.2d 481 (Fla. 1993). 

Plaintiffs in this matter have failed to comply with the pre-suit screening 

requirements of Chapter 766 prior to filing this action. Plaintiffs have not provided the 

Department of Juvenile Justice with the statutorily required notice of intent to initiate 

medical litigation prior to filing this action. Count IX C. of Plaintiffs' Complaint must 

therefore be dismissed. 

F. 

The Claims of Sharon Allen For Special Damages Have Not Been Plead With 

Specificity As Required By Federal Rule Of Civil Procedure 9 (g) And Count X 

Should Therefore Be Dismissed 

In Count X of Plaintiffs' First Amended Complaint, Plaintiff Sharon Allen alleges 

that she is the parent of Plaintiff David Clegg and had a legal obligation during the period 

of David Clegg's minority to provide for David Clegg's needs, including his medical 

needs. First Amended Compl. 111 81-82. Plaintiff Allen further alleges that as a result of 

Page 15 of 18 

Case 4:10-cv-00081-RH-WCS Document 18 Filed 04/26/10 Page 15 of 18
CLEGG V DEPARTMENT OF JUVENILE JUSTICE, et. al 

Case No. 4: lOcv81-RH/WCS 

the Defendants' conduct that she has incurred economic damages related to David 

Clegg's care and treatment through his 18 thbirthday. First Amended Compl. 11 83. 

However, Plaintiff Allen fails to set forth with any specificity the damages claimed, as is 

required by Fed R. Civ. P. 9 (g). The claims of Sharon Allen should therefore be 

dismissed. 

IV. Conclusion 

For the reasons set forth herein, Plaintiffs have failed to state a cause of action in 

Counts I, II, III, IV, V, VI, VIII, IX and X against the Defendants and those Counts of 

Plaintiffs' Complaint should therefore be dismissed. 

Respectfully submitted, 

/s/ Jonathan C. Abel 

Jonathan C. Abel, Esquire 

Florida Bar No.: 370721 

jabel@conroysimberg.com 

John S. Stevens, Esquire 

Florida Bar No.: 64487 

istevens(a),conroysimberg.com 

Page 16 of 18 

Case 4:10-cv-00081-RH-WCS Document 18 Filed 04/26/10 Page 16 of 18
CLEGG V. DEPARTMENT OF JUVENILE JUSTICE, et. al 

Case No. 4:10cv81-RH/WCS 

CERTIFICATE OF SERVICE 

I hereby certify that on April 24, 2010 the foregoing document was electronically 

filed with the Clerk of the Court using the CM/ECF. I further certify that the forgoing 

document is being served this day on all counsel of record on the attached Service List in 

the manner specified, either via transmission of Notices of Electronic Filing generated by 

CM/ECF or in some other authorized trimmer for those counsel or parties who are not 

authorized to receive electronically, Notices of Electronic Filing. 

/s/ John S. Stevens 

John S. Stevens, Esquire 

Florida Bar No.: 64487 

istevens@conroysirnberg.eom 

CONROY, SIMBERG, GANON, 

KREVANS, ABEL, LURVEY, 

MORROW, & SCHEFER, P.A. 

3440 Hollywood Boulevard 

Second Floor 

Hollywood, FL 33021 

954-961-1400 - Telephone 

954-967-8577 - Facsimile 

Attorney for Defendants, DEPARTMENT OF 

JUVENILE JUSTICE, GULF COAST 

TREATMENT CENTER, INC., ASHER 

ZASLAW, JOHANA PEREZ, KEITH 

WILLIAMS, KELBY RAMER, DONNA 

BAREFOOT, and ROBERT ELLIS. 

Page 17 of 18 

Case 4:10-cv-00081-RH-WCS Document 18 Filed 04/26/10 Page 17 of 18
CLEGG V. DEPARTMENT OF JUVENILE JUSTICE, et. al 

Case No. 4: lOcv8 1-RH/WCS 

SERVICE LIST 

Clegg v. Department of Juvenile Justice, et. al 

Case No. 4:10cv81-RH/WCS 

United States District Court 

Northern District of Florida 

Tallahassee Division 

Karen A. Gievers, Esq. 

524 East College Avenue, Suite 2 

Tallahassee, FL 32301 

850-222-1961 

Fax: 850-222-2153 

Email:KGievers@KarenGievers.com 

Roy D. Wasson, Esq. 

Annabel C. Majewski, Esq. 

Wasson & Associates, Chartered 

Courthouse Plaza, Suite 600 

28 West Flagler Street 

Miami, FL 33130 

T - 305-666-5053 

F — 305-666-9511 

Fla. Bar No.: 332070 

royAwassonandassociates.com 

annabel@wassonandassociates.com 

Service via transmission of Notices of Electronic Filing generated 

by CM/ECF. 

Page 18 of 18 

Case 4:10-cv-00081-RH-WCS Document 18 Filed 04/26/10 Page 18 of 18