Carlos Alonso v. Public Health Trust of Miami-Dade County

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-14133
Non-Argument Calendar
____________________
CARLOS ALONSO,
individually, and as guardian for his son,
Angie Alonso,
Plaintiff-Appellant,
FE MOREJON,
individually,
Plaintiff,
versus
THE PUBLIC HEALTH TRUST OF MIAMI-DADE COUNTY,
d.b.a. Jackson Memorial Hospital,
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2 Opinion of the Court 22-14133
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:18-cv-24045-DPG
____________________
Before L AGOA , BRASHER , and BLACK , Circuit Judges.
PER CURIAM:
Carlos Alonso and his wife, Fé Morejón, are the parents of
Angie Alonso, an adult with mental and physical disabilities.1 Car-
los is also Angie’s guardian. Carlos and Morejón took Angie to the
defendant—Public Health Trust of Miami-Dade County doing
business as Jackson Memorial Hospital—for medical care. Over
the course of their interactions, they allege the defendant discrimi-
nated against them based on Angie’s disability in violation of Title
II of the Americans with Disabilities Act (ADA), 42 U.S.C
§ 12131-12134, and Section 504 of the Rehabilitation Act of 1973
(RA), 29 U.S.C. § 794. They appeal from the district court’s dismis-
sal of their pro se second amended complaint as a shotgun pleading
and alternatively for failure to state a claim. After careful review,
we affirm the dismissal.
1 For ease of reference, we refer to Carlos and Angie Alonso by their first
names.
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I. BACKGROUND
Carlos, as the sole plaintiff, filed a pro se complaint in 2018,
and in response to the defendant’s first motion to dismiss, he filed
his first amended complaint in April 2019 with the district court’s
permission. Carlos’s 26-page, 168-paragraph first amended com-
plaint described three encounters with the defendant: (1) a phone
call on May 3, 2016, to set up a doctor’s appointment, (2) an emer-
gency room visit on October 3, 2016; and (3) the scheduled appoint-
ment on November 4, 2016. Generally, Carlos was dissatisfied with
the treatment Angie received during the October and November
visits, and his complaint asserted counts for discrimination and re-
taliation under the ADA and RA, breach of contract, and promis-
sory estoppel.
The defendant renewed its motion to dismiss, arguing the
first amended complaint was a shotgun pleading and failed to state
a claim.
At a status conference in June 2019, the district court stated
it would dismiss the first amended complaint as a shotgun filing
because Carlos had reincorporated his prior allegations in each
count. The court also asked Carlos how he knew he had difficulty
getting Angie an appointment because of his disability, rather than
the hospital being busy, and Carlos said the defendant’s staff treated
his son “like a normal person,” rather than giving him an earlier
appointment as “a reasonable accommodation . . . for a disabled
person.” The court explained it would permit Carlos to file a sec-
ond amended complaint and warned Carlos that, based on the
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4 Opinion of the Court 22-14133
caselaw cited by the defendant, his complaint sounded like medical
malpractice, not an ADA claim. It cautioned Carlos that he
“need[ed] to look and see exactly what [he] ha[s] to prove under
the ADA, and if it doesn’t fit, [he is] going to have a problem later.”
Shortly after, the district court entered its order dismissing
the complaint as a shotgun pleading with leave to file a second
amended complaint on or before August 16. On August 16, Carlos
filed a document titled “Motion for Leave to File the Authorized
Second Amended Complaint.” He explained this was in compli-
ance with the June 18 order authorizing the amendment and that
he was adding his wife and son as plaintiffs.
Carlos attached a 45-page, 189-paragraph second amended
complaint as an exhibit. In it, Carlos, “individually and as guardian
for his son,” and Morejón (collectively, plaintiffs), proceeding pro
se, asserted the defendant discriminated and retaliated against An-
gie “for no other reason than his disability, when they refused to
make reasonable modifications in policies, practices, or proce-
dures,” and that, as a result, Angie was denied the benefits and ser-
vices of a public entity. They further asserted the defendant’s staff
acted with discriminatory and retaliatory intent or with deliberate
indifference to the federally protected rights of Angie and his par-
ents.
According to the second amended complaint, Angie needed
a primary care physician to evaluate him every 60 days to continue
receiving state benefits for individuals with disabilities. In search
of a new doctor for Angie, Carlos called the defendant on May 3,
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22-14133 Opinion of the Court 5
2016, requesting an expedited appointment in light of Angie’s disa-
bilities. Unable to persuade the hospital to make an earlier appoint-
ment, Carlos scheduled an appointment for Angie in November
with Dr. Deborah Carlone.
On October 3, 2016, Carlos and Morejón took Angie to the
defendant’s emergency room because Angie was complaining of
pain. When they arrived, Carlos requested “some reasonable ac-
commodations” to speed up treatment, provide privacy, and make
Angie more comfortable. These accommodations, including expe-
dited service and a private room, were allegedly either refused or
performed inadequately.
At the scheduled appointment on November 4, the plaintiffs
again allegedly suffered from delays, inattention, and a lack of re-
spect by the defendant’s staff. According to the plaintiffs, a nurse
found Angie’s blood pressure was high, and Dr. Carlone briefly
checked in then left, promising to return immediately. After 45
minutes of waiting, Carlos complained at the front desk, and he
asked Dr. Carlone’s supervisor to appoint another doctor to see
Angie. The supervisor refused, and when Dr. Carlone eventually
returned, she asked “in a rude way” about Angie’s personal infor-
mation, which the plaintiffs provided and Dr. Carlone entered in
her computer. Carlos explained Angie’s need for a new primary
care doctor and asked for referrals to other doctors to address An-
gie’s ongoing symptoms. Dr. Carlone allegedly started arguing
with Carlos and “putting [up] obstacles to giv[ing] Angie medical
attention.” She allegedly “tried to pressure Carlos to take Angie
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6 Opinion of the Court 22-14133
back to his former doctor” and rejected Carlos’s arguments that she
should attend Angie as a new patient. She then “became very up-
set,” “erased all the information about Angie in her computer,” and
left the room. The plaintiffs requested another meeting with Dr.
Carlone’s supervisor but left the hospital after waiting for another
25 minutes. Despite being at the hospital for more than two hours,
Angie was not cared for by a doctor.
Carlos filed a complaint against Dr. Carlone and her super-
visor and attempted to meet with the hospital’s director. At a
meeting with the hospital’s Chief of Service, Diamela Corrales, a
few days later, Carlos told Corrales about his complaints. In De-
cember, Angie’s parents took him to another hospital where he
was eventually diagnosed with a urinary tract infection, kidney
stones, and Spastic Quadriplegic Cerebral Palsy. After receiving no
response on his complaint with the defendant, Carlos obtained An-
gie’s medical records from the defendant and allegedly discovered
Dr. Carlone had included false information and inaccurately billed
for services.
On August 30, the defendant moved to dismiss the second
amended complaint for failure to state a claim, but it no longer ar-
gued the complaint was a shotgun pleading.
A few days later, the district court granted the plaintiffs’ mo-
tion for leave to file the second amended complaint, and the com-
plaint was re-filed in a separate docket entry.
The plaintiffs responded to the motion to dismiss. They
then moved a third time for leave to amend, which was opposed,
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22-14133 Opinion of the Court 7
and the district court denied leave for failure to confer with the de-
fendant’s counsel. Undeterred, the plaintiffs filed a fourth motion
to amend, which the defendants also opposed.
Nearly three years passed without court action. Then, on
October 14, 2022, the district court denied leave to amend for fail-
ure to show good cause to amend. It also scheduled a status con-
ference. The plaintiffs asked for reconsideration of the denial of
leave to amend and to stay the case for 90 days.
On November 15, 2022, the district court cancelled the sta-
tus conference. The court then dismissed the second amended
complaint with prejudice as to the ADA claims—Counts 1 through
4—and without prejudice as to the two remaining state-law
claims—Counts 5 and 6. The court found the complaint should be
dismissed as a shotgun pleading because Counts 2 through 4 “in-
corporate by reference preceding paragraphs, leading to a situation
where most of the counts (i.e., all but the first) contain irrelevant
factual allegations and legal conclusions” and make it “virtually im-
possible to know which allegations of fact are intended to support
which claim(s) for relief.” The court alternatively found Counts 1
through 4 seem to allege the defendant “did not immediately give
Plaintiffs’ disabled child a medical appointment and that the hospi-
tal provided their child with inadequate medical care.” It “agree[d]
with Defendant that such claims do not fall under the ADA or RA”
and were “more suited as medical malpractice claims.”
The plaintiffs appealed from the dismissal and retained
counsel on appeal.
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8 Opinion of the Court 22-14133
II. DISCUSSION
The plaintiffs raise a few arguments on appeal: (1) the district
court technically erred by granting a premature motion to dismiss,
(2) the operative complaint was not a shotgun pleading and stated
an ADA claim, and (3) they should have been allowed to replead.
We address these issues in turn.
A. Motion on the Operative Complaint
The plaintiffs’ first argument is unpersuasive. They assert
the district court’s order granting leave to amend was not entered,
and the second amended complaint was not filed, until after the de-
fendant moved to dismiss on August 30. As a result, they argue the
defendant’s motion to dismiss was prematurely directed toward
the “preview” version of the second amended complaint attached
as an exhibit to their August 16 motion for leave to amend, and the
court should not have ruled on the motion to dismiss.
While an amended pleading generally supersedes any prior
pleadings, Pintando v. Miami-Dade Hous. Agency, 501 F.3d 1241, 1243
(11th Cir. 2007), the district court already granted Carlos leave to
amend when it dismissed the first amended complaint. Carlos did
not need to ask again for permission to amend, and the motion to
amend with the attached complaint was filed within the time per-
mitted for amendment. Moreover, the complaint attached as an
exhibit is substantively identical to the second amended complaint
filed on September 6. The plaintiffs assert “[a]lmost 200 revisions
distinguish the [second amended complaint] (according [to] an
Adobe Acrobat comparison report)” from the “preview version to
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22-14133 Opinion of the Court 9
be filed upon authorization.” But the only differences are the sig-
nature block date, stamps by the clerk’s office, and scanning arti-
facts. Under the circumstances, the district court did not err by
considering the motion to dismiss because compliance with Local
Rule 15.1 was an administrative convenience, not a legally signifi-
cant act. See S.D. Fla. 15.1 (requiring an amended pleading to be
separately filed).
B. Dismissal as a Shotgun Pleading
Next, the district court gave alternative grounds to dismiss
the second amended complaint: shotgun pleading and the failure
to state an ADA claim. For the plaintiffs to succeed, we need to
find the district court erred in both respects. We may also affirm
the district court on any ground supported by the record. Cisneros
v. Petland, Inc., 972 F.3d 1204, 1210 (11th Cir. 2020).
We review the district court’s dismissal of a complaint as a
shotgun pleading for abuse of discretion. Weiland v. Palm Beach
Cnty. Sheriff’s Off., 792 F.3d 1313, 1320 (11th Cir. 2015). We have
identified four rough types of shotgun pleadings, and the unifying
characteristic “is that they fail to one degree or another, and in one
way or another, to give the defendants adequate notice of the
claims against them and the grounds upon which each claim rests.”
Id. at 1321-23.
The district court found the plaintiffs’ second amended com-
plaint fell into the most common category: pleading “multiple
counts where each count adopts the allegations of all preceding
counts, causing each successive count to carry all that came before
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10 Opinion of the Court 22-14133
and the last count to be a combination of the entire complaint.” Id.
at 1321. On appeal, the defendant argues the second most com-
mon type of shotgun pleading is more applicable—that is, the com-
plaint was “replete with conclusory, vague, and immaterial facts
not obviously connected to any particular cause of action.” See id.
at 1322.
The plaintiffs2 contend the district court abused its discretion
because their ADA claim was pled to give fair notice to the defend-
ant. While the second amended complaint improved on the mass
reincorporation of the first amended complaint, we cannot say the
district court abused its discretion in dismissing it as a shotgun
pleading. This was Carlos’s third attempt to plead his ADA and RA
2 In the second amended complaint, Carlos, proceeding pro se, purported to
bring claims on behalf of Angie as his guardian. As Angie’s guardian, Carlos
would have had standing to sue on Angie’s behalf. See Fed. R. Civ. P.
17(a)(1)(C), (c) (allowing guardians to sue on behalf of individuals who are in-
competent). However, as a non-attorney, Carlos was not allowed to represent
Angie while proceeding pro se. See Devine v. Indian River Cty. Sch. Bd., 121 F.3d
576, 581-82 (11th Cir. 1997) (holding that Rule 17(c) did not confer a non-at-
torney father the right to proceed pro se on his minor son’s behalf), overruled in
part on other grounds by Winkelman ex rel. Winkelman v. Parma City Sch. Dist., 550
U.S. 516 (2007). Although 28 U.S.C. § 1654 grants parties the ability to “plead
and conduct their own cases personally or by counsel,” it does not grant the
ability to plead or conduct someone else’s case. See id. at 581.
The district court did not address Angie specifically, so it is not entirely clear
whether it considered Angie to be a proper plaintiff. We clarify that Carlos
could not represent Angie while proceeding pro se, so any claims purportedly
brought on Angie’s behalf were not properly before the court and could not
have been dismissed with prejudice. See id. at 581-82. We otherwise express
no opinion about the viability of any claims with respect to Angie.
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22-14133 Opinion of the Court 11
claims, and it still contains immaterial facts and conclusory legal
assertions masked as facts. Although we liberally construe pro se
pleadings and hold them to less stringent standards than we apply
to formal pleadings that lawyers draft, “we cannot act as de facto
counsel or rewrite an otherwise deficient pleading to sustain an ac-
tion.” Bilal v. Geo Care, LLC, 981 F.3d 903, 911 (11th Cir. 2020).
C. Denial of Leave to Amend
Finally, the plaintiffs concede their complaint “could be im-
proved upon,” but they contend they should have been permitted
to replead any portions of their complaint the district court found
inadequate.
We review a district court’s decision to deny leave to amend
for abuse of discretion although that discretion is “severely re-
stricted” by Civil Rule 15. Woldeab v. Dekalb Cnty. Bd. of Educ., 885
F.3d 1289, 1291 (11th Cir. 2018). Ordinarily, if a more carefully
drafted complaint might state a viable claim, a district court abuses
its discretion if it does not provide a pro se plaintiff with at least one
opportunity for amendment before dismissing the action with prej-
udice. See id. A court need not grant leave to amend when “a more
carefully drafted complaint could not state a claim.” Id.
The district court gave Carlos two opportunities to file
amended complaints, and it was not required to provide a third.
Although the court did not dismiss the first amended complaint on
the merits, it directed Carlos at the June 2019 status conference to
carefully consider what he needed to plead for an ADA claim.
However, the district court still found the second amended
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12 Opinion of the Court 22-14133
complaint failed to state an ADA claim. See Silva v. Baptist Health S.
Fla., Inc., 856 F.3d 824, 834 (11th Cir. 2017) (“The ADA and RA fo-
cus not on quality of medical care or the ultimate treatment out-
comes, but on the equal opportunity to participate in obtaining and
utilizing services.” (citing 42 U.S.C. § 12182(b)(1)(A)(ii); 29 U.S.C.
§ 794(a); 45 C.F.R. § 84.4(b); 45 C.F.R. § 84.52(d)(1)). Under the
circumstances, the district court did not abuse its discretion in
denying leave to file a third amended complaint.3
III. CONCLUSION
We AFFIRM the dismissal of the second amended com-
plaint.
3 In their last motion to amend, the plaintiffs specifically sought to add discrim-
ination and retaliation claims under the RA on Angie’s behalf. But, again, Car-
los and Morejón cannot proceed pro se on Angie’s behalf¸ so they were not
entitled to add those claims. See Devine, 121 F.3d at 581-82. Moreover, Carlos
and Morejón have not explained how they could have pled an ADA or RA
claim on their own behalf. See Silberman v. Miami Dade Transit, 927 F.3d 1123,
1133-34 (11th Cir. 2019) (discussing the elements of ADA and RA claims). We
would thus affirm the dismissal of Counts 1 through 4 with respect to them
for failure to state a claim, as well. See Cisneros, 972 F.3d at 1210; Woldeab, 885
F.3d at 1291. After dismissing the federal claims, the district court had discre-
tion to decline to exercise supplemental jurisdiction over the remaining
state-law claims, and we would affirm the dismissal of Counts 5 and 6 without
prejudice for that reason, too. See 28 U.S.C. § 1367(c)(3).
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