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Florida Prisoner Sues for Contracting HIV

by David M. Reutter

Florida prisoner Richard James Randles filed simultaneous state and federal lawsuits alleging guard B.D. Hester ordered him, on three separate occasions, to clean up blood from other prisoners who had accidentally wounded themselves or attempted suicide at the Zephyrhills Correctional Institution medial/psychiatric ward. Randles requested to use the blood-spill kits containing full body protective clothing. Hester refused the request, and only provided Randles a pair of plastic or latex gloves to wear while cleaning up the blood spills. Randles claimed that prior to the incidents he tested normal for HIV and that a nurse could verify the cuts he had on his hands during the clean ups. After being exposed to HIV contaminated blood during the clean ups, Randles tested HIV positive.

The state tort action alleged that Hester's negligence was the cause of Randles' illness. The state moved for dismissal on sovereign immunity stating that Hester's actions were criminal misconduct and the state could not be held liable. The Florida Second District Court of Appeal held that under Section 768.28(9)(a), Florida Statutes, the complaint could only be dismissed if it alleged the acts were taken by the employee (1) while acting outside the scope of his employment; (2) in bad faith; (3) with malicious purpose; or (4) in a manner exhibiting wanton and willful disregard of human rights, safety, or property. It concluded that the complaint contained none of these allegations, and reversed and remanded the trial court's grant of dismissal for further proceedings. See: Randles vs. Moore , 780 So. 2d 158 (Fla. 2d DCA 2001).

The federal civil rights action alleged cruel and unusual punishment, and Hester moved for dismissal. In doing so, Hester said that he "assumed all body fluids were dangerous just automatically since Hepatitis B and HIV began getting some publicity." In his deposition, Hester stated that he would personally never clean up blood spills as Randles described without the use of full protective gear issued and required by the Florida Department of Corrections (FDOC), Blood Borne Exposure Control Plan (BECP), which is the policy for large blood spills. However, Hester required Randles to clean up the massive blood spills with nothing more than latex gloves. According to Randles, the gloves were torn on one of the three clean-ups.

The District Court held that an Eighth Amendment violation is clearly established in intentionally exposing a prisoner to serious diseases. The court found that Hester's actions exposed Randles to unsafe prison conditions, and he was deliberately indifferent to Randles' serious medical needs by that exposure. Hester also exceeded the scope of his discretionary authority when he violated FDOC written policies, violated state law, and in essence, violated the constitutional protections against cruel and unusual punishment. The court denied the motion to dismiss.

Hester then sought reconsideration by the court maintaining it improperly considered the BECP and his deposition. The court held that under Fed.R.Evid. 201 it can take judicial notice of any public records that are capable of accurate and ready determination.

The court found BECP is such a public record and took sua sponte judicial notice. Additionally, Hester had ample notice and opportunity to challenge consideration of the BECP after Randles filed it in opposition to the motion to dismiss, but failed to do so. The court also held it did not heavily rely on Hester's deposition and the complaint contained adequate allegations to show deliberate indifference. Both of Rundle's lawsuits are pending for further disposition and a final ruling upon the merits. See: Randles v. Hester, ____ F. Supp 2d ___, and ___ F. Supp 2d ____ (M.D. Fla. 2001).

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Related legal cases

Randles v. Hester

Randles v. Moore

Randles v. Moore, 780 So.2d 158 (Fla.App. Dist.2 01/12/2001)

[1] Florida Court of Appeals

[2] CASE NO. 2D00-1386

[3] 780 So.2d 158, 2001.FL

[4] January 12, 2001


[6] Steven G. Mason, Orlando, for Appellant. Robert A. Butterworth, Attorney General, Tallahassee, and Locksley O. Wade, Assistant Attorney General, Tampa, for Appellee.

[7] The opinion of the court was delivered by: Davis, Judge.

[8] Appeal from the Circuit Court for Pasco County; Maynard F. Swanson, Jr., Judge.

[9] Richard James Randles challenges the trial court's order dismissing with prejudice his amended complaint against Michael Moore as Secretary of the Florida Department of Corrections. We reverse.

[10] While an inmate at the Zephyrhills Correctional Institution, Randles was assigned to work in the medical/psychiatric ward of the prison. In three separate incidents, he was ordered to clean up massive amounts of blood from other inmates who had either accidentally wounded themselves or attempted suicide. He alleged that prior to these incidents, he had obtained normal results for blood tests when checked for HIV. His complaint alleged that the officer who ordered him to clean up the blood refused to provide the appropriate blood spill kits which included protective clothing, goggles and gloves. He further alleged that on one occasion, the gloves that were supplied were torn. A few months later, he began to feel tired and run down. Further blood testing resulted in a positive test for HIV. Randles filed the complaint alleging that the negligence of the officer was the cause of his illness.

[11] The State moved to dismiss the complaint and argued that the action is barred by sovereign immunity. Specifically, the State alleged that the officer's action was criminal misconduct and that the State could not be held responsible for such misconduct. The trial court granted the motion with prejudice.

[12] The standard to be applied when reviewing an order granting a motion to dismiss is de novo. See W. R. Townsend Contracting, Inc. v. Jensen Civil Constr., Inc., 728 So. 2d 297 (Fla. 1st DCA 1999). Additionally, we must limit our examination to the four corners of the complaint. See Wilson v. News-Press Publishing Co., 738 So. 2d 1000, 1001 (Fla. 2d DCA 1999). An affirmative defense may be a basis for a motion to dismiss only if it appears within the four corners of the complaint. See Lowery v. Lowery, 654 So. 2d 1218, 1219 (Fla. 2d DCA 1995).

[13] For the court to dismiss the complaint based on section 768.28(9)(a), Florida Statutes (1999), the complaint must allege that the acts were taken by the employee (1) while acting outside the scope of his employment; (2) in bad faith; (3) with malicious purpose; or (4) in a manner exhibiting wanton and wilful disregard of human rights, safety, or property. A review of this complaint does not show any of these allegations.

[14] The complaint alleges that on one occasion the gloves were torn but does not allege that the officer knew of the tear. The complaint alleges that Randles had cuts on his hand and suggests that the prison nurse could vouch for the allegation. However, these allegations do not "affirmatively and clearly show the applicability of the defense." See Vause v. Bay Medical Center, 687 So. 2d 258, 261 (Fla. 1st DCA 1996).

[15] We reverse and remand for further proceedings.

[16] THREADGILL, A.C.J., and GREEN, J., Concur.