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West v. Wainwright

District Court of Appeal of Florida, First District
Mar 20, 1980
380 So. 2d 1338 (Fla. Dist. Ct. App. 1980)

Summary

holding prisoner's complaint alleging malicious mistreatment "through `a program of deliberate abuse' consisting of denying dietary and medical treatment of appellant's illness" stated a cause of action against prison officials in their individual capacity

Summary of this case from Hall v. Knipp

Opinion

Nos. JJ-116, KK-297.

March 20, 1980.

Appeal from the Circuit Court, Bradford County, Wayne M. Carlisle, J.

Allan C. West, pro se.

Jim Smith, Atty. Gen., and Jonathan D. Schuman, Asst. Atty. Gen., Tallahassee, for appellees.


The interlocutory appeal in case JJ-116, from an order vacating a default entered by the clerk, is properly taken pursuant to Fla.R.App.P. 4.2(a) (1962). Contrast Fla.R. App.P. 9.130 (1977); Security Motors, Inc. v. Fiat Motors of North America, Inc., 373 So.2d 396 (Fla. 1st DCA 1979). The record sustains the trial court's finding that the clerk improperly entered a default after defendants served papers in the action. Fla.R.Civ.P. 1.500.

The appeal in KK-297 is from an order dismissing appellant's complaint seeking monetary damages for appellees' alleged negligent and malicious injury to appellant, a state prisoner, through "a program of deliberate abuse" consisting of denying dietary and medical treatment of appellant's illness. The complaint was dismissed "without prejudice" on account of appellant's failure to allege that he performed the statutory condition precedent of presenting his claim in writing to the Department of Insurance and appropriate agency. Section 768.28(6), Florida Statutes (1979).

Insofar as appellant's claim was against the state, the order requiring compliance with Section 768.28(6) is correct, and the dismissal without prejudice was appropriate. But insofar as appellant's complaint alleged malicious mistreatment "as a program of deliberate abuse designed to threaten the life of the Plaintiff or to drive him to distress," the complaint stated a cause of action against the appellees individually, for which Section 768.28(6) does not require a written claim upon the state or its agencies. See Section 768.28(9), Florida Statutes (1979); District School Board of Lake County, et al. v. Talmadge, 381 So.2d 698 (Fla. 1980). The trial court erred in dismissing the complaint against appellees individually.

The order appealed in JJ-116 is AFFIRMED; the order appealed in KK-297 is AFFIRMED IN PART, REVERSED IN PART.

ERVIN, J., and MELVIN, WOODROW M., Associate Judge (Ret.), concur.


Summaries of

West v. Wainwright

District Court of Appeal of Florida, First District
Mar 20, 1980
380 So. 2d 1338 (Fla. Dist. Ct. App. 1980)

holding prisoner's complaint alleging malicious mistreatment "through `a program of deliberate abuse' consisting of denying dietary and medical treatment of appellant's illness" stated a cause of action against prison officials in their individual capacity

Summary of this case from Hall v. Knipp

In West v. Wainwright, 380 So.2d 1338 (Fla. 1st DCA 1980), in a fact scenario somewhat similar to this case, this court approved a dismissal without prejudice of a complaint filed against the state.

Summary of this case from Hamide v. State Dept. of Corrections
Case details for

West v. Wainwright

Case Details

Full title:ALLAN C. WEST, APPELLANT, v. LOUIE L. WAINWRIGHT, INDIVIDUALLY AND AS…

Court:District Court of Appeal of Florida, First District

Date published: Mar 20, 1980

Citations

380 So. 2d 1338 (Fla. Dist. Ct. App. 1980)

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