Diana B. Cluff, et al. v. Miami-Dade County, et al.

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-10704
Non-Argument Calendar
____________________
DIANA B. CLUFF,
Individually and as personal representative
of the Estate of Gustavo Beaz,
JACQUELINE F. BEAZ,
Individually,
Plaintiffs-Appellants,
versus
MIAMI-DADE COUNTY,
Stephen P. Clark Center,
MIAMI-DADE FIRE RESCUE DEPARTMENT,
CAPTAIN ARTIS WEST,
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2 Opinion of the Court 22-10704
ALLISON AULT,
JEROME WELDON,
Defendants-Appellees.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:21-cv-23342-KMW
____________________
Before W ILSON, G RANT, and ANDERSON, Circuit Judges.
PER CURIAM:
Diana Cluff, on behalf of the estate of Gustavo Beaz, appeals
the dismissal of two 42 U.S.C. § 1983 claims with prejudice at the
motion-to-dismiss stage. We agree that dismissal was proper
because Cluff fails to state a claim against Miami-Dade County or
the individual paramedics who responded to Beaz’s emergency.
And it was not an abuse of discretion for the lower court to dismiss
with prejudice because Cluff’s request for leave to amend was
procedurally deficient. We affirm the district court.
I.
Incident reports state that at 2:06 AM on April 2, 2019, the
Miami-Dade County Fire Department received a medical alert that
Gustavo Beaz had trouble breathing. Nine minutes later,
paramedics entered Beaz’s home and found him unresponsive in a
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22-10704 Opinion of the Court 3
chair with foam over his nose and mouth. He was not breathing,
was cold to the touch, and had no pulse. As one paramedic pulled
lifesaving equipment from the ambulance, the others declared
Beaz dead on arrival. They did not transport Beaz to the hospital
or attempt resuscitation, though they did connect him to an EKG
machine to confirm that he had no pulse.
Arguing that the incident reports were falsified, that Beaz
had been alive, and that prompt action could have saved him,
Beaz’s daughters brought suit individually and on behalf of the
estate against Miami-Dade County, its fire department, and the
three paramedics. The plaintiffs voluntarily dismissed their
individual claims, and all claims against Miami-Dade Fire.1 They
also do not appeal the remand of all state law claims back to state
court.
That leaves two claims brought by Cluff on behalf of the
estate: a § 1983 municipal liability claim against Miami-Dade
County, and a § 1983 claim against the three responding
1 Despite this voluntary dismissal, Cluff’s notice of appeal stated that it was
brought by “Diana B. Cluff, individually and as personal representative of the
Estate of Gustavo Beaz, and Jacqueline F. Beaz,” and consistently referred to
the “plaintiffs.” We asked the plaintiffs to confirm that they were only
appealing the dismissal of claims brought by Cluff on behalf of the estate
against the paramedics and Miami-Dade County, in line with their voluntary
dismissal. They did so, and we issued an order appropriately clarifying the
scope of the appeal.
Cluff v. Miami-Dade Cnty., No. 22-10704-AA, 2022 U.S.
App. LEXIS 15834 (11th Cir. June 8, 2022).
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4 Opinion of the Court 22-10704
paramedics. Both claims rely on alleged violations of Beaz’s
substantive due process rights. The district court dismissed both
under Federal Rule of Civil Procedure 12(b)(6). It asserted that the
paramedics had qualified immunity, and that Cluff had not
demonstrated the existence of an official policy or unofficial
custom underpinning municipal liability. The dismissal was with
prejudice. Though Cluff’s opposition to the motion to dismiss
contains several requests for leave to amend, she never filed such a
motion.
II.
We review de novo the dismissal of a complaint for failure
to state a claim under Rule 12(b)(6).
Henley v. Payne, 945 F.3d
1320, 1326 (11th Cir. 2019). We must accept allegations in the
complaint as true and construe them in the light most favorable to
the plaintiff.
Id. But a claim must be “plausible on its face”—
plaintiffs cannot rely on mere “labels and conclusions” or “naked
assertions devoid of further factual enhancement.”
Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quotations and brackets omitted).
We review for abuse of discretion when considering a
district court’s denial of leave to amend.
Newton v. Duke Energy
Florida, LLC, 895 F.3d 1270, 1275 (11th Cir. 2018).
III.
The claims against the paramedics are insufficient to
overcome their qualified immunity. If they acted within their
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22-10704 Opinion of the Court 5
discretionary authority (which Cluff concedes when she notes that
they were “all acting in the course and scope of their employment”
during “all times relevant to” the complaint), the burden is on Cluff
to overcome qualified immunity.
Piazza v. Jefferson Cnty., 923
F.3d 947, 951 (11th Cir. 2019). She must show that the paramedics
violated a clearly established statutory or constitutional right.
Wood v. Moss, 572 U.S. 744, 757 (2014).
No such right existed. In this context, first responders were
“under no affirmative constitutional duty to provide any particular
type of emergency medical service.”2
Wideman v. Shallowford
Cmty. Hosp., Inc., 826 F.2d 1030, 1036 (11th Cir. 1987). And the
“fact that the County undertook to provide
some ambulance
service did not give rise to a constitutional duty to perform the
particular service desired” by a plaintiff.
Id.
Even if a cognizable right existed, there is an independent
reason to dismiss Cluff’s claim. She alleges throughout the
complaint that the paramedics acted with “reckless disregard
and/or deliberate indifference.” But “deliberate indifference is
insufficient to constitute a due-process violation” in these
circumstances.
Nix v. Franklin Cnty. Sch. Dist., 311 F.3d 1373, 1377
(11th Cir. 2002) (quotation omitted). And “a negligent or grossly
negligent rescue attempt by a state employee is not the equivalent
2 The relevant context is that Beaz, like Wideman, was not a prisoner or in
some other custodial relationship with the state.
Wideman, 826 F.2d at 1035–
36.
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of a deprivation of right to life without due process of law.”
Bradberry v. Pinellas Cnty., 789 F.2d 1513, 1516 (11th Cir. 1986).
Conduct that is “reckless” also does not “rise to the level of
culpability necessary to state a violation” of Beaz’s substantive due
process rights.
Waldron v. Spicher, 954 F.3d 1297, 1310 (11th Cir.
2020). Reckless or deliberately indifferent behavior is not enough
to defeat this claim of qualified immunity.
Because there is a route around qualified immunity if an
official acted with a “purpose to cause harm,” Cluff asks us to read
her allegation that paramedics are liable for Beaz’s death “because
they created or enhanced the danger to his life” as a claim that they
acted with a purpose to cause harm.
See L.S. ex rel. Hernandez v.
Peterson, 982 F.3d 1323, 1331 (11th Cir. 2020).
But her claims are not enough to satisfy the standard under
our caselaw. We held in
Waldron that a police officer who
prevented bystanders from performing CPR on a dying victim may
have been motivated by a purpose to cause harm.
Waldron, 954
F.3d at 1311–12. But here, there is no factual basis in Cluff’s
complaint as pled that supports an allegation of a purpose to cause
harm.
Accordingly, we hold in line with our past precedent that no
actionable constitutional violation defeats the paramedics’
qualified immunity defense. We affirm dismissal of Cluff’s claim.
To establish municipal liability under § 1983, plaintiffs must
identify a “policy or custom” that caused an injury.
Bd. of Cnty.
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22-10704 Opinion of the Court 7
Comm’rs of Bryan Cnty. v. Brown, 520 U.S. 397, 403 (1997)
(quotation omitted). Cluff concedes that there is no official policy
at play here. As for custom, a “single incident of a constitutional
violation is insufficient to prove a policy or custom even when the
incident involves several employees of the municipality.”
Craig v.
Floyd Cnty., 643 F.3d 1306, 1311 (11th Cir. 2011);
see also Gold v.
City of Miami, 151 F.3d 1346, 1351–52 (11th Cir. 1998) (rejecting an
argument that municipal liability could attach without evidence of
prior misconduct).
Even accepting all facts about the Beaz incident as true, Cluff
does not plausibly allege anything beyond “labels and conclusions”
to suggest a pattern of broader wrongdoing.
Iqbal, 556 U.S. at 678
(quotation omitted). She writes that this “is not the first time”
county employees committed a litany of wrongs (falsifying
response times, incorrectly identifying patients as dead on arrival,
etc.). But the district court is right that there is no citation to any
“report,” “cases involving a similar violation,” or “newspaper
accounts indicating even one other instance” of such conduct. In
short, Cluff pled no facts to show a custom. Dismissal was proper.
IV.
Generally, a “court should freely give leave” to amend a
complaint “when justice so requires.” Fed. R. Civ. P. 15(a)(2). And
“outright refusal to grant the leave without any justifying reason
appearing for the denial is not an exercise of discretion; it is merely
abuse.”
Foman v. Davis, 371 U.S. 178, 182 (1962). Here, the lower
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court dismissed both § 1983 claims with prejudice. It did not
explain that decision outside a brief note in its analysis of the
municipal liability claim, which states that dismissal “with
prejudice” is “based on the foregoing” reasoning.
Nevertheless, dismissal with prejudice was not an abuse of
discretion for a simple reason—there was no cognizable request for
the court to grant. As Cluff notes, she requested leave to amend
on four separate occasions throughout her response in opposition
to the motion to dismiss—but never once outside of it. She had
nearly three months to act between that filing on November 9,
2021 and the court’s order partially granting the motion to dismiss
on February 1, 2022, but chose to do nothing.
“Where a request for leave to file an amended complaint
simply is imbedded within an opposition memorandum, the issue
has not been raised properly” and it is “within the discretion of the
district court to deny that request
sub silentio.”
Rosenberg v.
Gould, 554 F.3d 962, 967 (11th Cir. 2009) (quotation omitted);
see
also Cita Tr. Co. AG v. Fifth Third Bank, 879 F.3d 1151, 1157 (11th
Cir. 2018). Such a “request” does not comport with the
requirements of Federal Rule of Civil Procedure 7(b) and possesses
“no legal effect.”
Newton, 895 F.3d at 1277. These requests are
“procedurally improper,” and a district court is “well within its
discretion” to deny them.
Chabad Chayil, Inc. v. Sch. Bd. of Miami-
Dade Cnty., 48 F.4th 1222, 1236 (11th Cir. 2022). So too here.
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Because this procedural infirmity is a sufficient reason for us
to uphold the district court’s decision, we need not consider the
sufficiency of the court’s reasoning or the potential futility of any
amendment.
* * *
We AFFIRM the district court’s order dismissing Cluff’s
remaining federal claims with prejudice.
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