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380 So. 2d 1338

West v. Wainwright

District Court of Appeal of Florida

Decided March 20, 1980

District Court of Appeal of Florida · decided 1980-03-20

Key passage — most relied on by later courts

“through `a program of deliberate abuse' consisting of denying dietary and medical treatment of appellant's illness”

quoted by 1 later decision, including 982 So. 2d 1196 - Hall v. Knipp

Relies on 381 So. 2d 698 - DISTRICT SCH. BD. OF LAKE CTY. v. Talmadge · SEC. MOTORS, INC. v. Fiat Motors of North America, Inc.

Good law ✅— No negative treatment on recordhow we know

Decided 1980-03-20

How this case has been cited

Cited by 7 later decisions — most recently May 2008

7 state decisions

40198019902000decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

Allan C. WEST, Appellant,
v.
Louie L. WAINWRIGHT, Individually and As Secretary of the Department of Corrections; J.C. Combs, Individually and As Assistant Superintendent, F.S.P.; Milton R. Hicks, Individually and As Correctional Officer Chief III, Appellees.

Nos. JJ-116, KK-297.

¶1District Court of Appeal of Florida, First District.

March 20, 1980.

¶2Allan C. West, pro se.

¶3Jim Smith, Atty. Gen., and Jonathan D. Schuman, Asst. Atty. Gen., Tallahassee, for appellees.

¶4ROBERT F. SMITH, Jr., Judge.

¶5The 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. *1339 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.

¶6The 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).

¶7Insofar 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.

¶8The order appealed in JJ-116 is AFFIRMED; the order appealed in KK-297 is AFFIRMED IN PART, REVERSED IN PART.

¶9ERVIN, J., and MELVIN, WOODROW M., Associate Judge (Ret.), concur.

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