British D. Moss v. Leesburg Regional Medical Center

USCA11 Case: 20-11376 Date Filed: 11/08/2021 Page: 1 of 7
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-11376
Non-Argument Calendar
____________________
BRITISH D. MOSS,
As next of kin to Gail A. Moss, deceased,
Plaintiff-Appellant,
versus
LEESBURG REGIONAL MEDICAL CENTER,
in their individual capacity,
GREGORY R. LEWIS,
Hospital Administrator, Leesburg Medical CTR,
in their individual capacity,
KYLE C. SHAW, MD,
Leesburg Medical CTR,
in their individual capacity,
JOHN/JANE DOE,
USCA11 Case: 20-11376 Date Filed: 11/08/2021 Page: 2 of 7
2 Opinion of the Court 20-11376
6 Named Employees of B.O.P.,
in their individual capacity,
JOHN/JANE DOE,
6 Named Employees of Leesburg Regional Medical Center,
in their individual capacity, et al.,
Defendants-Appellees,
BUREAU OF PRISON,
FCC Coleman,
Defendant.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 5:17-cv-00535-TJC-PRL
____________________
Before WILSON, ROSENBAUM, and EDMONDSON, Circuit Judges.
PER CURIAM:
USCA11 Case: 20-11376 Date Filed: 11/08/2021 Page: 3 of 7
20-11376 Opinion of the Court 3
British Moss (“Plaintiff”), a Florida prisoner proceeding pro
se, 1 appeals the district court’s order dismissing without prejudice
-- pursuant to 28 U.S.C. § 1915 -- Plaintiff’s second amended com-
plaint. Plaintiff asserted against defendants claims under 42 U.S.C.
§ 1983, Bivens, 2 and the Federal Tort Claims Act (“FTCA”). No
reversible error has been shown; we affirm.3
Plaintiff filed pro se this civil action as “next of kin” of his
deceased mother (Gail Moss), who was a federal inmate incarcer-
ated at FCC Coleman at the time of her death in June 2014. In his
second amended complaint, Plaintiff named as defendants (1)
Leesburg Regional Medical Center (“LRMC”), (2) Gregory Lewis,
Hospital Administrator and C.E.O. of LRMC; (3) nine members of
LRMC’s medical staff; (4) Kyle Shaw, medical examiner, (5) eight
members of the prison and medical staff at FCC Coleman, and (6)
the United States Public Health Service.
Plaintiff contends that Defendants -- prison officials and
medical staff involved in his mother’s care -- committed negli-
gence, medical malpractice, “deliberate indifference, malfeasance,
medical battery, and abuse, that gave way to wrongful death,” in
1 We read liberally briefs filed by pro se litigants. See Timson v. Sampson, 518
F.3d 870, 874 (11th Cir. 2008).
2 Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403
U.S. 388 (1971).
3 We DENY Plaintiff’s motion for referral to the volunteer lawyer program.
USCA11 Case: 20-11376 Date Filed: 11/08/2021 Page: 4 of 7
4 Opinion of the Court 20-11376
violation of his mother’s rights under the Fourth, Sixth, Eighth and
Fourteenth Amendments. Plaintiff says his mother underwent
“two illegal stent surgeries” and brain surgery. Plaintiff also says
his mother was prescribed 27 different medications, including (ac-
cording to Plaintiff) some medications that his mother was allergic
to and some medications that caused his mother to develop can-
cerous tumors. Plaintiff alleges that Defendant Shaw destroyed in-
tentionally evidence about the cause of Plaintiff’s mother’s death
when he failed to perform an autopsy and made false statements
on Plaintiff’s mother’s death certificate.
The district court dismissed Plaintiff’s complaint for lack of
standing. Because Plaintiff had not been appointed as the personal
representative of his mother’s estate, the district court concluded -
- as a matter of Florida law -- that Plaintiff lacked standing to pursue
this civil action on his mother’s behalf.
We review issues of standing de novo. See DiMaio v. Dem-
ocratic Nat’l Comm., 520 F.3d 1299, 1301 (11th Cir. 2008).
When federal law “is deficient in the provisions necessary to
furnish suitable remedies,” 42 U.S.C. § 1988(a) directs courts to
look to the applicable state law, provided the state law “is not in-
consistent with the Constitution and laws of the United States.”
See 42 U.S.C. § 1988(a); Robertson v. Wegmann, 436 U.S. 584, 588
(1978). Because 42 U.S.C. § 1983 says nothing about the survival of
a civil-rights action following the death of the injured party or
about who has standing to bring a claim for wrongful death, these
issues are resolved by applying the law of the pertinent state. See
USCA11 Case: 20-11376 Date Filed: 11/08/2021 Page: 5 of 7
20-11376 Opinion of the Court 5
Robertson, 436 U.S. at 588 (concluding -- based on section 1988(a)
-- that the survival of a section 1983 action was governed by Loui-
siana’s survivorship law); Estate of Gilliam ex rel. Waldroup v. City
of Prattville, 639 F.3d 1041, 1043 (11th Cir. 2011) (applying Ala-
bama’s survivorship statute to determine whether a section 1983
excessive-force claim survived the injured party’s death); Carringer
v. Rodgers, 331 F.3d 884, 848-50 (11th Cir. 2003) (looking to Geor-
gia’s wrongful-death and survival statutes to determine whether
plaintiff had standing to pursue a section 1983 wrongful-death
claim).
Here, the district court concluded properly that whether
Plaintiff has standing to pursue his claims under section 1983 and
under Bivens are questions governed by Florida law. See Abella v.
Rubino, 63 F.3d 1063, 1065 (11th Cir. 1995) (noting that “courts
generally apply § 1983 law to Bivens cases.”). We do not conclude
-- nor has Plaintiff argued -- that Florida’s Wrongful Death Act is
inconsistent with federal law.
Florida law also governs Plaintiff’s standing to bring claims
under the Federal Tort Claims Act. See Gonzalez-Jiminez de Ruiz
v. United States, 378 F.3d 1229, 1230 n.1 (11th Cir. 2004) (noting
that a claim under the Federal Tort Claims Act is governed by the
law of the state in which the alleged tort occurred; when the al-
leged tort occurs in Florida, “Florida law governs all substantive
issues, including the question of whether an individual has standing
and capacity to sue.”).
USCA11 Case: 20-11376 Date Filed: 11/08/2021 Page: 6 of 7
6 Opinion of the Court 20-11376
Pertinent to this appeal, Florida law provides that a wrong-
ful-death “action shall be brought by the decedent’s personal rep-
resentative, who shall recover for the benefit of the decedent’s sur-
vivors and estate all damages, as specified in this act, caused by the
injury resulting in death.” Fla. Stat. § 768.20. The Florida Supreme
Court has said that -- under Florida’s Wrongful Death Act -- “the
personal representative is the only party with standing to bring a
wrongful death action to recover damages for the benefit of the
decedent’s survivors and the estate.” See Wagner, Vaughan,
McLaughlin & Brennan, P.A. v. Kennedy Law Grp., 64 So. 3d 1187,
1191 (Fla. 2011).
Nothing evidences that Plaintiff has been appointed as the
personal representative of his mother’s estate. Indeed, as a con-
victed felon, Plaintiff is ineligible to serve as a personal representa-
tive under Florida law. See id. § 733.303(1)(a). Because Plaintiff
brought this civil action in his capacity as his mother’s “next of kin,”
Plaintiff lacked standing to pursue his claims under section 1983,
Bivens, and the FTCA. 4 The district court concluded properly that
these claims were subject to dismissal.
4 We note that Plaintiff’s second amended complaint makes a single
reference to the Americans with Disabilities Act: Plaintiff titled Count IV “Fed-
eral Tort Claims Act in Violation of (Abuse) Against 42 U.S.C. §§ 12101-12213Americans with Disabilities Act (ADA).” The paragraphs supporting Count
IV, however, make no reference to facts or law pertinent to the ADA. Those
paragraphs, instead, assert that Defendants committed gross negligence, med-
ical malpractice, medical battery, abuse, and deliberate indifference, in
USCA11 Case: 20-11376 Date Filed: 11/08/2021 Page: 7 of 7
20-11376 Opinion of the Court 7
AFFIRMED.
violation of the Fourth, Sixth, Eighth and Fourteenth Amendments and Flor-
ida law. Plaintiff says Defendants denied erroneously his mother’s request for
compassionate release under 18 U.S.C. § 3582. Plaintiff also alleges that his
mother was tortured in violation of the Torture Victims Protection Act, 28
U.S.C. § 1350. (The Torture Victims Protection Act is a “strictly jurisdictional”
statute applicable in cases involving violations of international law. See Doe
v. Drummond Co., 782 F.3d 576, 583 (11th Cir. 2015)). Construing liberally
Plaintiff’s second amended complaint, we cannot conclude that Plaintiff has
asserted a substantive claim under the ADA. See Tannenbaum v. United
States, 148 F.3d 1262, 1263 (11th Cir. 1998) (we construe liberally pro se plead-
ings).