847 F.

2d 771
11 Fed.R.Serv.3d 568

Everett Earl THOMAS, Plaintiff-Appellant,

v.
TOWN OF DAVIE, et al., Defendants-Appellees.
No. 87-5207.

United States Court of Appeals,

Eleventh Circuit.
June 21, 1988.

Cathy Jackson Lerman, Fort Lauderdale, Fla., for plaintiff-appellant.

Michael T. Burke, Fort Lauderdale, Fla., for Town of Davie, et al.
Appeal from the United States District Court for the Southern District of
Florida.
Before KRAVITCH and CLARK, Circuit Judges, and ESCHBACH* ,
Senior Circuit Judge.
CLARK, Circuit Judge:

The district court dismissed Earl Thomas' Sec. 1983 claim with prejudice and
denied his motion for reconsideration. In the latter motion, plaintiff alleged
"each of the defects found by this Court to render the complaint untenable are
clearly subject to amendment and easily curable." We agree, and therefore
reverse, and direct the district court to allow Thomas to amend his complaint.

I.
2

Thomas filed a five-count complaint against the defendants in state court.

Because count II of the complaint was a claim under 42 U.S.C. Sec. 1983, the
defendants removed the case to federal court.

Thomas' complaint alleged the following facts. On August 2, 1984, Thomas

was approached by Officer Paul Yawn after Thomas had been involved in an
automobile accident. When Yawn approached his vehicle, Thomas got out of
the vehicle "and was in obvious need of immediate medical attention. Despite
the fact that ... Yawn knew or in the exercise of reasonable care should have
known that [Thomas] was in need of medical attention, Yawn proceeded to
handcuff [Thomas] and drive him to the scene of the accident. [Yawn] acted
with a gross and willful disregard for [Thomas'] welfare." In spite of his
"medically emergent and deteriorating ... condition," and his inability to follow
directions, Thomas was then given a roadside sobriety test by Officer Gregory
Behrends. Both Yawn and Behrends knew or should have known that Thomas
was in need of immediate attention, and they acted with a "gross and willful
disregard for [his] welfare, thereby injuring, further injuring, or aggravating
injuries already sustained by [him] as a direct and proximate result of [their]
acts." The sobriety test showed that Thomas had a blood alcohol content of
0.0%, and Thomas was transported to the Broward County Sheriff's Office
despite the fact that the defendants knew or should have known that he was in
need of immediate medical attention. Thomas was held in custody until he
posted bond. Employees of the Sheriff's Office, who knew or should have
known of Thomas' need for immediate medical attention, then released him on
to the street adjacent to the Broward County Jail, where he collapsed and was
injured.
4

In count II of the complaint, Thomas alleged that Yawn and Behrends, through
"willful, malicious and wanton disregard for [his] constitutional rights,"
deprived him of certain constitutional rights, while acting under color of state
law. In addition, Thomas claimed that the Town of Davie and Chief of Police
Robert Weatherholt, "through negligence and/or gross negligence" deprived
him of the same rights, and that the Town of Davie's policy and custom
regarding "the extent of training and supervision of its police officers as to the
appropriate method of recognizing and handling persons in need of medical
attention" was grossly inadequate and its adoption demonstrated a "conscious
disregard for the constitutional rights and safety of the public."

The district court dismissed Thomas' complaint with prejudice, finding that
Thomas had no claim under federal law. The court withheld judgment on the
state law claims (counts I, III-V) and remanded them to state court. The court
found that Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251
(1976), was controlling, that Thomas had failed to allege that the defendants
had deliberately and intentionally denied him medical care, that Thomas'
allegations were not sufficient to establish gross negligence or recklessness, and
that the Town of Davie could not be held liable for the inadequate training of
its officers.

II.
A.
6

Thomas' basic claim is that he was denied proper medical care and that his
need for care was apparent. Because Thomas had not been convicted at the time
he allegedly required medical care, the Eighth Amendment has no application
to his claim; rather, the relevant constitutional provision is the due process
clause of the Fourteenth Amendment. City of Revere v. Massachusetts General
Hospital, 463 U.S. 239, 244, 103 S.Ct. 2979, 2983, 77 L.Ed.2d 605 (1983).
That clause "require[s] the responsible government or governmental agency to
provide medical care to persons ... who have been injured while being
apprehended by police." Id. at 245-46, 103 S.Ct. at 2983.

Although the Supreme Court in City of Revere did not define a city's due
process obligations to a pretrial detainee, we have applied the Estelle v. Gamble
"deliberate indifference" standard to claims of improper medical care by
plaintiffs like Thomas. See Aldridge v. Montgomery, 753 F.2d 970, 972 (11th
Cir.1985). Deliberate indifference to serious medical needs may be shown by
failure to provide prompt attention to those needs by delaying necessary
medical treatment for nonmedical reasons or by "proving a policy of
deficiencies in staffing or procedures such that the [pretrial detainee] is
effectively denied access to adequate medical care." Anderson v. City of
Atlanta, 778 F.2d 678, 686 n. 12 (11th Cir.1985); Ancata v. Prison Health
Services, Inc., 769 F.2d 700, 704 (11th Cir.1985); Aldridge, 753 F.2d at 970.

B.
8

A complaint should not be dismissed under Fed.R.Civ.P. 12(b)(6) "unless it

appears beyond doubt that the plaintiff can prove no set of facts in support of
his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 47,
78 S.Ct. 99, 101, 2 L.Ed.2d 80 (1957). In addition, a district court's discretion to
dismiss a complaint without leave to amend is "severely restrict[ed]" by
Fed.R.Civ.P. 15(a), which directs that leave to amend "shall be freely given
when justice so requires." Dussouy v. Gulf Coast Investment Corp., 660 F.2d
594, 597 (Former 5th Cir.1981). "[U]nless there is a substantial reason to deny
leave to amend, the discretion of the district court is not broad enough to permit
denial." Id. at 598. The same standards apply when a plaintiff seeks to amend
after a judgment of dismissal has been entered by asking the district court to
vacate its order of dismissal pursuant to Fed.R.Civ.P. 59(e). Id. at 597 n. 1.

We cannot say that dismissal of Thomas' Sec. 1983 claim without leave to

amend was proper. More specific allegations (e.g., why Thomas' need for
medical attention was obvious, why the defendants should have known that
Thomas needed medical attention) would have remedied the pleading problems
found by the district court. In addition, there was no undue delay, bad faith or
dilatory motive on Thomas' part, and the defendants would not have been
prejudiced by amendment of count II of the complaint. Dussouy, 660 F.2d at
598-99. Furthermore, it does not appear beyond doubt that Thomas cannot
prove a set of facts which would entitle him to relief. See, e.g., Ancata v. Prison
Health Services, Inc., 769 F.2d 700 (11th Cir.1985) (reversing dismissal of a
Sec. 1983 "deliberate indifference" claim against a county, its sheriff, an entity
which provided health care services to county inmates, and employees of the
entity).
III.
10

For the reasons set forth above, we reverse the dismissal of Thomas' complaint.
On remand, Thomas will be allowed to amend his complaint.

11

REVERSED and REMANDED.

12

ESCHBACH, Senior Circuit Judge, concurring in part and dissenting in part:

13

The majority recites that the district court dismissed plaintiff's Sec. 1983 claim
with prejudice and denied his motion for reconsideration. In the motion for
reconsideration plaintiff alleged "each of the defects found by the court to
render the complaint untenable are clearly subject to amendment and easily
curable." The majority agreed with this recitation in the motion for
reconsideration and reversed with directions to the district court to allow
plaintiff to amend his complaint.1 While in Part III of the majority opinion, the
court states "... we reverse the dismissal of Thomas' complaint ...", the opinion
is not clear on whether the majority holds the district court erred in granting the
motion to dismiss plaintiff's complaint or in denying the motion for
reconsideration. This is critical since the standard of review is different
depending on which order the majority was reversing. Conley v. Gibson, 355
U.S. 41, 45-46, 78 S.Ct. 99, 101, 2 L.Ed.2d 80 (1957) (establishing the standard
for granting a motion to dismiss as being a conclusion "... beyond doubt that the
plaintiff can prove no set of facts in support of his claim which would entitle
him to relief."), Rhodes v. Amarillo Hospital Dist., 654 F.2d 1148, 1153-54
(5th Cir. Unit A Sept.1981) (no reversal required on abuse of discretion review
of denial of leave to amend provided the record discloses an apparent
substantive reason for the district court's action).

14

It seems apparent, however, from the text of the opinion that the majority in
discussing the possible amendment which could be made to the complaint,
conceded deficiencies in the complaint and reversed the denial of the motion
for reconsideration which sought leave to amend the complaint. Our standard
of review at that posture of the case is abuse of discretion. Thomas v. Farmville
Manufacturing Company, Inc., 705 F.2d 1307 (11th Cir.1983).

15

While I differ with the majority in this case, the result of the majority opinion
as it relates to the plaintiff's claim against the two officers is essentially correct.
I arrive at that conclusion by a different route. In my view the original
complaint was sufficient to state a claim against officers Yown and Behrends.
While the call is close, we review the district court's order of dismissal de novo
for error of law. Simmons v. Peavy-Welsh Lumber Co., 113 F.2d 812 (5th
Cir.1940). See also Rae v. Union Bank, 725 F.2d 478, 479-80 (9th Cir.1984).
Thus, the district court was in error as to the stated claim against the officers
and must be reversed. In this context my difference with the majority lies in my
belief that in reviewing the denial of reconsideration under an abuse of
discretion standard, the denial of the motion for reconsideration as to Yawn and
Behrends was not error. In his post-dismissal motion for reconsideration, the
plaintiff makes absolutely no showing whatever as to how the "defects" in the
complaint are "easily curable." No further allegations are made, no summary of
additional facts or other indication of how the complaint would be amended is
set forth, nor is the substance of any proposed amendment mentioned. Plaintiff
merely refers back to several paragraphs in the dismissed complaint. The record
itself presents no indication of how the complaint might be amended. The
majority's speculation as to how the complaint "would" be amended finds no
support in the record.

16

Rule 15(a) does reflect a predisposition in favor of post-dismissal leave to

amend. In interpreting the directive of Rule 15(a) that leave to amend be "freely
given when justice so requires", we have previously held that "[a] grant of
leave to amend is particularly appropriate following dismissal of a complaint
for failure to state a claim, and, in the absence of a declared or apparent reason,
an outright refusal to grant leave to amend is an abuse of discretion." Thomas,
705 F.2d at 1307-08 (citation omitted). See Martin v. Ethyl Corporation, 341
F.2d 1, 4 (5th Cir.1965).

17

To date, the leading case with regard to the question of what constitutes an
acceptable reason under Rule 15(a) for denial of leave to amend is Foman v.
Davis, 371 U.S. 178, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962). In Foman, the
Supreme Court listed the following examples of apparent or declared reasons

that can warrant a district court's denial of leave to amend: "undue delay, bad
faith or dilatory motive, repeated failure to cure deficiencies by amendments
previously allowed, undue prejudice to the opposing party by virtue of
allowance of the amendment, [and] futility of amendment." 371 U.S. at 182, 83
S.Ct. at 230. Nothing in the text of Rule 15(a), the pertinent Advisory
Committee Notes, or the case law indicates that in applying the Foman criteria
for denial of leave to amend, a district court must presume in every case that a
contemplated but unspecified amendment to a previously-dismissed complaint
will not be futile.
18

Unless the record before the district court on a motion seeking leave to amend
discloses some substantive reason to believe that the requested amendment will
not be futile, Rule 15(a) does not require that non-futility be assumed and leave
to amend granted. When a motion for reconsideration seeking leave to amend
makes no showing or assertion of what amendments can or will be made, thus
giving the district court no basis for inferring that the deficiencies in the
original complaint can or will be cured, there simply is no basis for inferring
that justice requires that leave to amend be granted. See Pan-Islamic Trade
Corporation v. Exxon Corporation, 632 F.2d 539, 546-48 (5th Cir.1980),
DeLoach v. Woodley, 405 F.2d 496, 496-97 (5th Cir.1969). A district court
that denies leave to amend in that circumstance cannot by any test be said to
have engaged in an abuse of discretion.

19

Accepting the deficiency in the complaint as the majority has it was not error to
dismiss plaintiff's complaint against the Town of Davie or Chief Weatherholt.
There were simply inadequate allegations to state a claim, as to them. In
addition there was no abuse of discretion in denying the motion for
reconsideration as to the Town of Davie and the Chief of Police. That motion
for reconsideration was one and the same as that previously described and as to
the Town and Chief suffered from the same deficiencies.

20

Thus I would reverse the order of dismissal as to officers Yawn and Behrends
and remand for further proceedings. I would affirm both the dismissal of the
complaint and the denial of the motion for reconsideration as to the Town and
its police chief.

Honorable Jesse E. Eschbach, Senior U.S. Circuit Judge for the Seventh
Circuit, sitting by designation

Appellant's Rule 59(e) motion for reconsideration was timely served (within

ten days as computed under Rule 6(a)) and therefore tolled the Fed.R.App.Proc.
4(a)(1) 30-day period for appeal of the order dismissing his complaint.
Following the district court's denial of his motion for reconsideration, Thomas
filed a timely appeal, thus placing before this court an appeal of both the
January 9, 1987 dismissal order and the February 20, 1987 order denying
appellant's motion for reconsideration