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Wilke v. Tallahassee Memorial Health Care

United States District Court, M.D. Alabama, Northern Division

September 11, 2018

LARRY AYERS WILKE, Plaintiff,
v.
TALLAHASSEE MEMORIAL HEALTH CARE, et al., Defendants.

          ORDER AND RECOMMENDATION OF THE MAGISTRATE JUDGE [1]

          SUSAN RUSS WALKER, UNITED STATES MAGISTRATE JUDGE

         Plaintiff Larry Wilke, proceeding pro se, [2] initiated this lawsuit on June 21, 2017 and, in compliance with a sealed order, filed an amended complaint on January 2, 2018. See Doc. 13. The amended complaint is the operative pleading, [3] and plaintiff asserts therein various claims against 19 named defendants - Tallahassee Memorial Healthcare d/b/a Medicus Select, LLC; Dr. Frank E. Gredler; Dr. Carlos Beltran; Dr. Prasanti Tatini, Dr. Edith Hidalgo; Dr. Sireesha Chimata; Dr. Stephen M. Cremin; Dr. Shayla Gray; Trisha Mauney, R.N.; Felicia Rocket, R.N.; Christine Larsen-Chieffe, R.N.; Carl Mahler; Dan Hendricksen; The Incorporated City of Vero Beach, Florida; Officer Chris Cox of the Vero Beach Police Department; Officer Brian Kerensky of the Vero Beach Police Department; Chief David Currey of the Vero Beach Police Department; Indian River Memorial Hospital, Inc.; and Dr. Kristen Hicks. See id.

         All defendants have filed motions to dismiss this cause pursuant to Federal Rule of Civil Procedure 12 for, inter alia, lack of personal jurisdiction, improper venue, and failure to state a claim upon which relief can be granted. See Docs. 37, 41, 54, 63, and 93.[4] Pursuant to the court's order, the plaintiff filed response briefs in opposition to the motions to dismiss. See Doc. 59 (response to Doc. 37); Doc. 94 (response to Doc. 37); Doc. 95 (Response to Doc. 54); Doc. 96 (Response to Doc. 41 and Doc. 93); Doc. 97 (Response to Doc. 63).

         Upon consideration of the motions to dismiss due to improper venue, see Docs. 54 and 63, on February 27, 2018, the court sua sponte ordered the parties to show cause why this matter should not be transferred to the United States District Court for the Northern or Southern District of Florida pursuant to 28 U.S.C. § 1406(a) or, in the alternative, under 28 U.S.C. § 1404(a). See Doc. 67. Section 1406(a) provides that a “district court of a district in which is filed a case laying venue in the wrong division or district shall dismiss, or if it be in the interest of justice, transfer such case to any district or division in which it could have been brought.” Section 1404(a) provides that, “[f]or the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought or to any district or division to which all parties have consented.”

         Plaintiff did not respond to the court's show cause order regarding the propriety of transfer of venue. In his opposition to the motions to dismiss due to improper venue, plaintiff states only, concerning venue, that, “[t]he venue is proper as the Judge may select.” Doc. 95 at 2; Doc. 97 at 2. Defendants Kristen Hicks, Indian River Memorial Hospital, Inc., Chris Cox, David Currey, Brian Kerensky, The Incorporated City of Vero Beach, Florida, and the Tallahassee Defendants object to transfer of venue and request a ruling on their motions to dismiss. See Doc. 77; Doc. 78; Doc. 79. Thus, no party seeks transfer of venue, and the court reaches the merits of the motions to dismiss in the manner set out below. The court also addresses plaintiff's motion for a hearing, motion to consolidate this action with divorce proceedings in an Alabama state court between the plaintiff and his wife, and ex parte motion to file a second amended complaint ex parte and under seal. See Doc. 100; Doc. 102; Doc. 103.

         Upon consideration, the court finds that the motions to dismiss for improper venue filed pursuant to Federal Rule of Civil Procedure 12(b)(3) by defendants Chris Cox, David Currey, Brian Kerensky, The Incorporated City of Vero Beach, Florida (collectively “the Vero Beach Defendants”), see Doc. 54, and Dr. Kristen Hicks, and Indian River Memorial Hospital, Inc., see Doc. 63, are due to be granted. Plaintiff's ex parte motion to file a second amended complaint ex parte and under seal is due to be denied. See Doc. 103. This matter is due to be dismissed without prejudice for improper venue. See Madara v. Hall, 916 F.2d 1510, 1514 n.1 (11th Cir. 1990) (noting, inter alia, that dismissal of claims for improper venue is without prejudice); Smarter Every Day, LLC v. Nunez, 2017 WL 1247500, at *6 & n.6 (N.D. Ala. Apr. 5, 2017) (sua sponte dismissing without prejudice due to improper venue and lack of personal jurisdiction and finding transfer is inappropriate due to plaintiff's failure to identify an appropriate forum for the lawsuit). Also, all remaining motions are due to be denied.

         BACKGROUND AND MATERIAL FACTS[5]

         This lawsuit is the second federal action filed by the plaintiff alleging that, in 2014, he was wrongfully detained and committed in the State of Florida for psychiatric evaluation and treatment under Florida's Baker Act, §§ 394.451-.47892, Florida Statutes (2017).[6] See Doc. 13 at 4-8. “The Baker Act is a means of providing individuals with emergency services and temporary detention for mental health evaluation and treatment when required either on a voluntary or an involuntary basis.” Doc. 63 at 1.

         In his amended complaint, plaintiff alleges that he suffered a panic attack. Doc. 13 at 6. Thereafter, on an unspecified date in January 2014[7] in Vero Beach, Florida, defendants Officer Cox and Officer Krensky

assaulted the 5'-9”, 165 lb., 70 year old plaintiff by manhandling and violently throwing him to the ground. Once on the ground, the Plaintiff was pinned down and double handcuffed resulting in severe abrasions to Plaintiff's forearm. The assault was initiated in an effort to quell the Plaintiff's desperate plea (yelling) for help in as much as the Plaintiff had implicated the Vero Beach Police Department in possible criminal behavior only 2 days prior in a tip to the F.B.I. in Ft. Pierce, Florida.

Doc. 13 at 8. While not expressly pled in the amended complaint, it appears from plaintiff's allegations that the police arrested the plaintiff and either transported or escorted him to Indian River Medical Center in Vero Beach.

         According to the amended complaint, on January 31, 2014, an Emergency Room physician at Indian River Medical Center performed a “thorough examination” of the plaintiff and recommended that he be released “‘to home'” care. Doc. 13 at 6. Based on allegations scattered throughout the amended complaint, the court infers that judicial proceedings were commenced under the Baker Act shortly thereafter for the purpose of committing the plaintiff to a hospital for psychiatric analysis and treatment. Plaintiff asserts that, following his arrest, and due to fraudulent reports and actions by numerous entities and individuals, on February 2 or February 3, 2014, a judge forcibly committed him against his will for 27 days to Tallahassee Memorial Hospital for mental evaluation and treatment. The plaintiff contends that the Baker Act commitment was the result of a conspiracy and fraud on the part of multiple defendants and non-parties. Plaintiff further asserts that he suffered “abuse … in the form of physical assaults of forced injection and forced (intimidated by threat) ingestion of dangerous psychotropic drugs to include[] Zyprexa, Cogentin and Lithium.” Doc. 13 at 7-8.

         Plaintiff also alleges that defendant The City of Vero Beach, Florida, and its agents have hacked plaintiff's computer from May 21, 2015 “to the present.” Doc. 13 at 3-4. The plaintiff avers that “[t]he purpose of the hacking is to provide a continuum of information to the criminal element enmeshed with the defendants. This stolen information is then used by the defendants to harass the Plaintiff. The computer fraud and its concomitant illegal activities are designed to thwart the Plaintiff's legal pursuit.” Doc. 13 at 9.

         The plaintiff also alleges that there is a wide-reaching criminal enterprise and conspiracy among an unnamed “criminal element, ” “corrupt drug alliances, ” the defendants, non-party law enforcement officials, and non-party The Florida League of Cities. Doc. 13 at 10. According to plaintiff, this criminal activity is related to widespread corruption and “large scale illegal drug activities [which] are rampant in the area surrounding Vero Beach and the Sebastian Inlet.” Doc. 13 at 10. Plaintiff's amended complaint alleges that he is the target and victim of harassment and threats by this criminal alliance, including the defendants, because he is a whistleblower who is attempting to expose their nefarious and unlawful deeds. Plaintiff contends that his Baker Act commitments, the treatment and medications he received while committed, an assault by defendants Officer Cox and Officer Krensky, the hacking of his computer, and other incidents of harassment are the result of and punishment for his actions as a whistleblower.

         Plaintiff seeks relief in the form of monetary damages in the amount of $100 million, reimbursement for costs associated with this litigation, and injunctive relief, to include “the complete removal from all repositories any and all records pertaining to the Plaintiff's Baker Act arrest.” Doc. 13 at 12-15. He hopes that this lawsuit will have a “chilling effect” and will begin to “cure the insidious corruption and its cohort … rampant drug infestation.” Id. at 15.

         SUBJECT MATTER JURISDICTION [8]

         Before reaching the merits of the instant motions, the court must first assure itself of subject matter jurisdiction over this cause.[9] A party seeking to invoke federal jurisdiction must make “a short and plain statement of the grounds for the court's jurisdiction.” Fed.R.Civ.P. 8(a)(1). A plaintiff who files a lawsuit in federal court bears the burden of demonstrating the court's subject matter jurisdiction. See, e.g., Pretka v. Kolter City Plaza II, Inc., 608 F.3d 744, 765 (11th Cir. 2010) (quoting McNutt v. General Motors Acceptance Corp. of Indiana, 298 U.S. 178, 189 (1936)) (“The prerequisites to the exercise of jurisdiction … must be met by the party who seeks the exercise of jurisdiction in his favor. He must allege in his pleading the facts essential to show jurisdiction.”).

         Plaintiff appears to invoke the court's subject matter jurisdiction pursuant to 28 U.S.C. § 1332(a)(1) - which permits civil actions satisfying the $75, 000.00 minimum amount-in-controversy requirement and between “citizens of different States” - by declaring that the amount in controversy in this case exceeds $75, 000.00. See Doc. 13 at 3. However, it is not evident from the complaint that the parties are completely diverse in citizenship, because the plaintiff provides no information about the citizenship of the defendants. “[D]iversity jurisdiction does not exist unless each defendant is a citizen of a different State from each plaintiff.” Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 373, 98 S.Ct. 2396 (1978). Moreover, the plaintiff has not supplied the names and places of citizenship of the members of defendant Medicus Select, LLC. “A limited liability company, unlike a corporation, is a citizen of any state of which one of its members is a citizen, not of the state where the company was formed or has it principal office.” Dasan USA, Inc. v. Weapon Enhancement Solutions LLC, 2016 WL 3996242, at *1 (N.D.Ga. 2016) (citing Rolling Greens MHP, L.P. v. Comcast SCH Holdings L.L.C., 374 F.3d 1020, 1022 (11th Cir. 2004)). See also Purchasing Power, LLC v. Bluestem Brands, Inc., 851 F.3d 1218, 1228 (11th Cir. 2017).

         In short, there is no information in plaintiff's amended complaint about the citizenship of any defendant except The City of Vero Beach, Florida. If plaintiff's amended complaint presented no other basis for subject matter jurisdiction, these deficiencies might merit dismissal for lack of subject matter jurisdiction. See Anago Franchising, Inc. v. Shaz, LLC, 677 F.3d 1272, 1281 (11th Cir. 2012) (“Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause.”) (quoting Ex Parte McCardle, 74 U.S. (7 Wall.) 506, 514, 19 L.Ed. 264 (1869)).

         However, construing plaintiff's amended complaint liberally, as the court must, plaintiff has asserted constitutional claims, and those claims give rise to subject matter jurisdiction. In Count 2, plaintiff asserts a state law claim for false imprisonment based on his involuntary commitment under the Baker Act. See Doc. 13 at 5-6. In support of that claim, the plaintiff alleges that “[t]he False Imprisonment … unconstitutionally denied the Plaintiff his Rights (sic) as well as irreparably damaged the Plaintiff's reputation including his loss of 2nd Amendment Rights.” Doc. 13 at 6. Construing the amended complaint liberally, plaintiff has alleged that certain individual defendants' fraudulent acts in support of the Baker Act commitment led to the wrongful deprivation of his right to bear arms under the Second Amendment.[10] Also, in Count 7, plaintiff asserts that his “due process” rights were infringed upon by individual defendants because of allegedly pervasive fraud in the process and proceedings that led to his involuntary commitment. See Doc. 13 at 11-12 (“Interference with Due Process”).

         Constitutional claims such as these are prosecuted by civil litigants in federal courts through the remedial vehicle of 42 U.S.C. § 1983. Section 1983 “is not itself a source of substantive rights, but a method for vindicating federal rights elsewhere conferred by those parts of the United States Constitution and federal statutes that it describes.” Baker v. McCollan, 443 U.S. 137, 144 n.3, 99 S.Ct. 2689, 2694 n.3 (1979). The plaintiff does not expressly refer to § 1983 in his amended complaint, and ordering the plaintiff to do so in a second amended complaint is unnecessary at this stage of the proceedings - it is evident that these are § 1983 claims. Some defendants have read plaintiff's complaint as asserting potential § 1983 claims as well. See, e.g., Doc. 54 at 7 (arguing that, to the extent plaintiff intended to assert § 1983 claims against defendants Cox, Kerensky, and Currey in their official capacities, the court should consider those as claims against The City of Vero Beach, Florida).

         A federal court has subject matter jurisdiction over “all civil actions arising under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. Section 1983 “creates a cause of action but does not itself bestow jurisdiction upon the district court.” Fountain v. Metro. Atlanta Rapid Transit Auth., 678 F.2d 1038, 1042 n.7 (11th Cir. 1982) (citing Hagans v. Lavine, 415 U.S. 528, 535, 94 S.Ct. 1372, 1378 (1974); Curtis v. Taylor, 625 F.2d 645, 649 (5th Cir.), modified, 648 F.2d 946 (5th Cir. 1980)).[11] “[28 U.S.C.] Section 1343(3) grants to the federal courts jurisdiction to hear claims alleging official state deprivation of constitutional rights or rights secured by federal statutes providing for equal rights.” Id. A plaintiff's omission of a reference to § 1343(3) “will not defeat jurisdiction when the ‘facts alleged in the complaint satisfy the jurisdictional requirements of the statute.'” Id. (quoting Southpark Square Ltd. v. City of Jackson, 565 F.2d 338, 341 n.2 (5th Cir. 1977), cert. denied, 436 U.S. 946, 98 S.Ct. 2849 (1978)).

         A “claim meets the threshold jurisdictional requirements of 28 U.S.C. [§] 1343(3) [if] it is well established that, ‘where the complaint, as here, is so drawn as to seek recovery directly under the Constitution or laws of the United States, the federal court ... must entertain the suit.'” Id. at 1042 (quoting Bell v. Hood, 327 U.S. 678, 681-82, 66 S.Ct. 773, 775-76 (1946)).

There are two exceptions to the general rule of Bell v. Hood. Even if a complaint alleges injury to federal rights, the courts should not entertain the lawsuit “where the alleged claim under the Constitution or federal statutes clearly appears to be immaterial and made solely for the purpose of obtaining ...

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