Opinion
CASE NO. 22-20748-CIV-LENARD/LOUIS
2022-09-14
Sergio PEREZ, Plaintiff, v. CITY OF OPA-LOCKA, Defendant.
Brian Howard Pollock, FairLaw Firm, Coral Gables, FL, for Plaintiff. Christopher J. Stearns, Jr., Jonathan Howard Railey, Johnson Anselmo Murdoch Burke Piper & Hochman PA, Fort Lauderdale, FL, for Defendant.
Brian Howard Pollock, FairLaw Firm, Coral Gables, FL, for Plaintiff. Christopher J. Stearns, Jr., Jonathan Howard Railey, Johnson Anselmo Murdoch Burke Piper & Hochman PA, Fort Lauderdale, FL, for Defendant. ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT CITY OF OPA-LOCKA'S MOTION TO DISMISS PLAINTIFF'S AMENDED COMPLAINT AND TO STRIKE PLAINTIFF'S REQUEST FOR PUNITIVE DAMAGES (D.E. 12) AND GRANTING DEFENDANT STEVEN BARREIRA'S MOTION TO DISMISS PLAINTIFF'S AMENDED COMPLAINT (D.E. 19) JOAN A. LENARD, UNITED STATES DISTRICT JUDGE
THIS CAUSE is before the Court on Defendant City of Opa-Locka's Motion to Dismiss Plaintiff's Amended Complaint and to Strike Plaintiff's Request for Punitive Damages, (D.E. 12), filed May 18, 2022. Plaintiff Sergio Perez filed a Response on June 9, 2022, (D.E. 21), to which the City filed a Reply on June 16, 2022, (D.E. 22).
Also before the Court is Defendant Steven Barreira's Motion to Dismiss Plaintiff's Amended Complaint, (D.E. 19), filed June 8, 2022. Plaintiff filed a Response on June 20, 2022, (D.E. 23), to which Barreira filed a Reply on June 27, 2022, (D.E. 24).
Upon review of the Motions, Responses, Replies, and the record, the Court finds as follows. I. Background
Unless otherwise specified, the following facts are gleaned from Plaintiff's Amended Complaint, (D.E. 9), and are deemed to be true for purposes of ruling on Defendant's Motion.
Plaintiff has been employed by the City of Opa-Locka as a law enforcement officer since March 8, 2008. (Am. Compl. ¶ 8.) During most of the relevant period, Plaintiff was a Captain with the City of Opa-Locka Police Department, (id. ¶ 2), and Defendant Steven Barreira was Chief of the Opa-Locka Police Department, (id. ¶ 4). Non-party Michael Steel held the rank of Sergeant with the City's Police Department in September of 2021, (id. ¶¶ 13-14), and was appointed Interim Chief of Police on February 11, 2022, (id. ¶ 162).
a. The Taser incident
On September 1, 2021, Plaintiff discharged a Taser 7 with a blue training cartridge that does not result in the discharge of electrical current and that is covered with "Velcro" hook fabric—which is known as a Hook and Loop Training (HALT) cartridge—in the vicinity of then-Sergeant Steel. (Id. ¶ 24.) On September 6, 2021, Sergeant Steel sent an email to City officials, the Florida Department of Law Enforcement, and others regarding the incident, (id. ¶ 28), and City Manager, John Pate, directed Chief Barreira to initiate an Internal Affairs investigation, (id. ¶ 29). On September 8, 2021, City Manager Pate announced at a City Commission hearing that he would wait for an investigation to conclude before taking any actions involving Plaintiff. (Id. ¶ 33.)
Sergeant Steel retained an attorney, and on September 9, 2021, notified the City of his intent to sue the City. (Id. ¶ 34.) On September 10, Chief Barreira suspended Plaintiff before any investigation had concluded. (Id. ¶ 35.)
On November 15, 2021, Dennis Jackson, II assumed the position of Interim Chief of Police and immediately reinstated Plaintiff to duty in the position of Captain. (Id. ¶ 39.)
On January 17, 2022, the City demoted Plaintiff to the rank of Sergeant, resulting in a change of job duties and a significant decrease in his pay. (Id. ¶¶ 41-42.) The City did not conduct any hearing prior to taking these actions. (Id. ¶ 46; see also id. ¶ 47.)
b. Complaints of financial mismanagement
Plaintiff complained to Chief Barreria regarding three separate instances of financial mismanagement.
First, in June 2021, Plaintiff began complaining to Chief Barreira that the City was wasting approximately $1,200 per month storing contraband. (Id. ¶ 69.) Plaintiff suggested selling the seized property at auction so the City could avoid paying the monthly storage fees. (Id. ¶ 70.)
Second, the City paid a significant amount of money to purchase a K-9, for equipment for the K-9, to upfit a police vehicle, and to train a City police officer. (Id. ¶¶ 73, 75.) The City had a policy in place relating to the use of a K-9 within the Police Department, (id. ¶ 74), but in July 2021, Chief Barreira directed that the K-9 not be placed into service until after a new policy was initiated, "resulting in the waste of taxpayer funds for over a week[,]" (id. ¶ 76).
Third, Chief Barreria indicated that he wanted to contract with Lexipol to update the Police Department's policies and procedures. (Id. ¶ 77.) Leixpol quoted Chief Barreira a cost exceeding $53,000 for the service, with additional annual subscription costs. (Id. ¶ 78.) Plaintiff objected to Chief Barreira's intent to contract with Lexipol as an unnecessary expenditure. (Id. ¶ 79.) Nevertheless, Chief Barreira "signed an agreement with Lexipol to commit the City to pay over $53,000 for this service, even though the City has not utilized Lexipol to this date." (Id. ¶ 80.)
According to the Amended Complaint, Plaintiff complained about these instances of financial mismanagement "while speaking as a public citizen" and "[e]ven though it did not implicate his position with the Police Department[.]" (Id. ¶ 83.)
The City responded by taking adverse employment actions against Capt. Perez starting on September 10, 2021, when he was placed on administrative leave, when he was later demoted from Captain to Sergeant, when he suffered a significant decrease in pay, when it relegated him to a Code Enforcement position, and when it finally required him to ride in a Code Enforcement vehicle wearing civilian clothing to enforce parking violations.(Id. ¶ 84.) Plaintiff alleges that the City has a history of retaliating against those who speak out about gross financial mismanagement and/or the waste of public funds. (Id. ¶ 86.)
c. Refusal to approve performance evaluation
The City's policies required that Plaintiff receive his annual performance evaluation by March 8 of each year. (Id. ¶ 165.) Captain Alvin Rogers completed Plaintiff's annual evaluation, giving Plaintiff a Total Ratings Score of 4.38 out of 5. (Id. ¶ 172.) Captain Rogers signed the evaluation for Plaintiff on March 8, 2022, and Plaintiff signed for having received the evaluation on March 8, 2022, leaving it up to the City - through Interim Police Chief Steel - to approve and accept the evaluation. (Id. ¶ 174.)
On March 11, 2022, Plaintiff initiated this lawsuit. (D.E. 1.) Interim Police Chief Steel has since refused to approve Plaintiff's 2021-2022 evaluation and has stated that he will not do so until Captain Rogers: a) reduces Plaintiff's ratings in the different categories, thereby reducing the Total Rating Score given to Plaintiff, and b) includes negative commentary in the narrative section for Plaintiff's evaluation. (Id. ¶ 175.) Plaintiff has repeatedly requested the City to provide him with his annual evaluation for 2021-2022, but it refuses. (Id. ¶ 177.)
Although the Amended Complaint alleges that Plaintiff filed the original Complaint in this lawsuit on March 1, 2022, the Court takes judicial notice that the original Complaint was actually filed on March 11, 2022. See In re Nilhan Devs., LLC, 631 B.R. 507, 518 (Bankr. N.D. Ga. 2021) ("Pursuant to Fed. R. Evid. 201(b), the Court can take judicial notice of its own docket and the contents of documents filed in the case and may do so without converting a motion to dismiss into a motion for summary judgment.") (citing Horne v. Potter, 392 F. App'x 800, 802 (11th Cir. 2010); United States v. Rey, 811 F.2d 1453, 1457 n.5 (11th Cir. 1987)).
d. Procedural posture
On May 4, 2022, Plaintiff filed the operative Amended Complaint, asserting five causes of action:
• Count I: Procedural Due Process violation under 42 U.S.C. § 1983 against the City of Opa-Locka, (id. ¶¶ 17-64);Plaintiff's prayers for relief request a damages award that includes punitive damages. (Id. at 8, 11, 18-19, 23, 27-28.)
• Count II: First Amendment violation (retaliation for objecting to financial mismanagement) under 42 U.S.C. § 1983 against the City of Opa-Locka, (id. ¶¶ 65-88);
• Count III: Florida Whistleblower Act violation against the City of Opa-Locka, (id. ¶¶ 89-145);
• Count IV: First Amendment violation (retaliation for filing this lawsuit) under 42 U.S.C. § 1983 against the City of Opa-Locka, (id. ¶¶ 146-183); and
• Count V: Procedural Due Process violation under 42 U.S.C. § 1983 against Chief Barreira, (id. ¶¶ 184-225).
The City moves to dismiss Counts I, II, and IV (but not Count III) of the Amended Complaint for failure to state claims upon which relief can be granted, and moves to strike the claim for punitive damages. (D.E. 12.) Chief Barreira moves to dismiss Count V of the Amended Complaint for failure to state a claim. (D.E. 19.)
II. Legal Standard
Under Federal Rule of Civil Procedure 12(b)(6), a court may dismiss a claim for "failure to state a claim upon which relief can be granted." "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.' " Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). Conclusory statements, assertions or labels will not survive a 12(b)(6) motion to dismiss. Id. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id.; see also Edwards v. Prime, Inc., 602 F.3d 1276, 1291 (11th Cir. 2010) (setting forth the plausibility standard). "Factual allegations must be enough to raise a right to relief above the speculative level[.]" Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (citation omitted). Additionally:
Although it must accept well-pled facts as true, the court is not required to accept a plaintiff's legal conclusions. Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009) (noting "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions"). In evaluating the sufficiency of a plaintiff's pleadings, we make reasonable inferences in Plaintiff's favor, "but we are not required to draw plaintiff's inference." Aldana v. Del Monte Fresh Produce, N.A., Inc., 416 F.3d 1242, 1248 (11th Cir. 2005). Similarly, "unwarranted deductions of fact" in a complaint are not admitted as true for the purpose of testing the sufficiency of plaintiff's allegations. Id.; see also Iqbal, 129 S. Ct. at 1951 (stating conclusory allegations are "not entitled to be assumed true").Sinaltrainal v. Coca-Cola, 578 F.3d 1252, 1260 (11th Cir. 2009), abrogated on other grounds by Mohamad v. Palestinian Auth., 566 U.S. 449, 453 n.2, 132 S.Ct. 1702, 182 L.Ed.2d 720 (2012). The Eleventh Circuit has endorsed "a 'two-pronged approach' in applying these principles: 1) eliminate any allegations in the complaint that are merely legal conclusions; and 2) where there are well-pleaded factual allegations, 'assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.' " Am. Dental Ass'n v. Cigna Corp., 605 F.3d 1283, 1290 (11th Cir. 2010) (quoting Iqbal, 556 U.S. at 679, 129 S.Ct. 1937).
III. Discussion
The City moves to dismiss Counts I, II, and IV of the Amended Complaint, (D.E. 12 at 2-15), and moves to strike the claim for punitive damages, (id. at 15-16). Chief Barreira moves to dismiss Count V of the Amended Complaint. (D.E. 19.)
a. The City's Motion (D.E. 12.)
The City moves to dismiss Counts I, II, and IV of the Amended Complaint for (1) failure to plausibly allege claims under 42 U.S.C. § 1983, (D.E. 12 at 2-13), and (2) failure to allege municipal liability under Monell v. Department of Social Services, 436 U.S. 658, 691, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), (D.E. 12 at 13-15). The City also moves to strike the claim for punitive damages on the grounds that a municipality is immune from punitive damages unless expressly authorized by statute, (id. at 15-16 (citing City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 260, 101 S.Ct. 2748, 69 L.Ed.2d 616 (1981); Cabrera-Rodriguez v. Sch. Bd. of Miami-Dade Cnty., Fla., No. 12-21388-Civ, 2012 WL 4338848, at *4 (S.D. Fla. Sept. 20, 2012); Erickson v. Hunter, 932 F. Supp. 1380, 1385 (M.D. Fla. 1996))).
1. Punitive damages
To begin with, Plaintiff wholly failed to respond to the City's argument that it is immune from punitive damages. By failing to respond to the argument, Plaintiff implicitly concedes that the City is immune from punitive damages. Hartford Steam Boiler Inspection & Ins. Co. v. Brickellhouse Condo. Ass'n, Inc., Case No. 16-cv-22236-GAYLES, 2016 WL 5661636, at *3 (S.D. Fla. Sept. 30, 2016) ("[A] plaintiff who, in [its] responsive brief, fails to address [its] obligation to object to a point raised by the defendant implicitly concedes that point.") (quoting Guzman v. City of Hialeah, Case No. 15-23985-CIV-GAYLES, 2016 WL 3763055, at *3 (S.D. Fla. July 14, 2016)). Regardless, the Court finds that by failing to respond to the argument, Plaintiff abandoned his claim for punitive damages against the City. See Jones v. Bank of Am., N.A., 564 F. App'x 432, 434 (11th Cir. 2014) ("[W]hen a party fails to respond to an argument or otherwise address a claim, the Court deems such argument or claim abandoned.") (quoting Hudson v. Norfolk S. Ry. Co., 209 F. Supp. 2d 1301, 1324 (N.D. Ga. 2001)); Holland v. Dep't of Health & Human Servs., 51 F. Supp. 3d 1357, 1376-77 (N.D. Ga. 2014) (finding that the plaintiff abandoned claim for punitive damages by failing to respond to the defendant's argument that sovereign immunity barred the claim for punitive damages).
2. Constitutional violations
Next, the City argues that Counts I, II, and IV generally fail to state a claim under 42 U.S.C. § 1983, (D.E. 12 at 2-13), and, specifically fail to allege municipal liability under Monell, 436 U.S. at 691, 98 S.Ct. 2018, (id. at 13-15).
"The Supreme Court has placed strict limitations on municipal liability under § 1983." Grech v. Clayton Cnty., 335 F.3d 1326, 1329 (11th Cir. 2003).
A [city's] liability under § 1983 may not be based on the doctrine of respondeat superior. City of Canton v. Harris, 489 U.S. 378, 385, 109 S. Ct. 1197, 103 L. Ed. 2d 412 (1989); Monell v. Dep't of Soc. Servs., 436 U.S. 658, 694, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978). A [city] is "liable under section 1983 only for acts for which [the city] is actually responsible." Marsh v. Butler County, 268 F.3d
1014, 1027 (11th Cir. 2001) (en banc). Indeed, a [city] is liable only when the [city's] "official policy" causes a constitutional violation. Monell, 436 U.S. at 694, 98 S. Ct. 2018. Thus, [Plaintiffs] must "identify a municipal 'policy' or 'custom' that caused [their] injury." Gold v. City of Miami, 151 F.3d 1346, 1350 (11th Cir. 1998) (quotation marks omitted) (alteration in original) (citing Bd. of County Comm'rs v. Brown, 520 U.S. 397, 403, 117 S. Ct. 1382, 137 L. Ed. 2d 626 (1997)).Id. A Plaintiff generally "has two methods by which to establish a [city's] policy: identify either (1) an officially promulgated county policy or (2) an unofficial custom or practice of the county shown through the repeated acts of a final policymaker for the county." Id. (citations omitted).
The Supreme Court has also recognized that "municipal liability may be imposed for a single decision by municipal policymakers under appropriate circumstances." Pembaur v. City of Cincinnati, 475 U.S. 469, 480, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986). Specifically, "where action is directed by those who establish governmental policy, the municipality is equally responsible whether that action is to be taken only once or to be taken repeatedly." Id. at 481, 106 S.Ct. 1292. "Thus, liability may arise from 'a course of action tailored to a particular situation and not intended to control decisions in later situations,' . . . provided that 'the decisionmaker possesses final authority to establish municipal policy with respect to the action ordered[.]' " Scala v. City of Winter Park, 116 F.3d 1396, 1399 (11th Cir. 1997) (quoting Pembaur, 475 U.S. at 481, 106 S.Ct. 1292).
In all cases, "a plaintiff (1) must show that the . . . [city][ ] has authority and responsibility over the governmental function in issue and (2) must identify those officials who speak with final policymaking authority for that local governmental entity concerning the act alleged to have caused the particular constitutional violation in issue." Grech, 335 F.3d at 1330. However, "identifying and proving that a final policymaker acted on behalf of a municipality is an evidentiary standard, and not a pleading requirement." Hoefling v. City of Miami, 811 F.3d 1271, 1280 (11th Cir. 2016).
A. Count I: Procedural Due Process violation under 42 U.S.C. § 1983 against the City of Opa-Locka
Count I alleges a procedural Due Process violation under 42 U.S.C. § 1983 against the City. (Am. Compl. ¶¶ 17-64.) The Court finds that Count I fails to state a claim upon which relief can be granted because it does not allege a constitutional violation.
The City initially argues that Count I violates federal pleading standards because it contains two separate procedural due process claims—one based on the denial of a property interest, and one based on the denial of a liberty interest (which the Parties refer to as a "stigma-plus" claim). (D.E. 12 at 2-5.) The City further argues that the Amended Complaint fails to state a 1983 claim under either theory. (Id. at 5-8.) Relevant here, the City argues that Plaintiff fails to state a procedural due process violation based upon the denial of a property interest because Plaintiff did not have a property interest in his continued employment with the City. (Id. at 7-8.) It argues that Florida's Law Enforcement Officers' Bill of Rights, Fla. Stat. § 112.532(4)(b), explicitly disclaims any property interest in a law enforcement officer's employment or expectancy of continued employment. (Id. at 8.)
In his Response, Plaintiff initially argues that combining 1983 claims based on liberty interests and property interests into a single count "offends no rule or law." (D.E. 21 at 3.) Plaintiff is wrong; combining two distinct claims into a single count constitutes an impermissible "shotgun pleading." Weiland v. Palm Beach Cnty. Sheriff's Office, 792 F.3d 1313, 1322-23 & n.13 (11th Cir. 2015). However, Plaintiff clarifies that he "did not allege a stigma plus claim." (D.E. 21 at 6.) Because Plaintiff only intended to allege a 1983 claim based on the denial of a claimed property interest, and not one based on the denial of a liberty interest, the Court need not strike the Complaint as a "shotgun pleading." The Court construes Count I as a 1983 claim based only on the denial of a claimed property interest.
Plaintiff argues that the City "urges the Court to misread Fla. Stat. § 112.532(4)(b) and to ignore its contextual limitation." (D.E. 21 at 4.) He argues that "[t]he entirety of Fla. Stat. § 112.532(4) makes clear that the limitation at issue only relates to adverse employment actions taken after a disciplinary proceeding is complete, and is not a wholesale disclaimer of property rights, by the limiting language used 'This paragraph . . . .' " (Id. (emphasis in original).) He argues that the Amended Complaint alleges that the City suspended him and later demoted him before any investigation concluded, and because Fla. Stat. § 112.532(4)(b) "only disclaims property interests after an investigation is complete, it does not apply to the case sub judice given that the investigation involving [Plaintiff] is not alleged to have completed." (Id. at 5.) He argues that "[t]he Police Officer's Bill of Rights is routinely construed to 'give police officers a property interest in their positions[.]' " (Id. (citing Grice v. City of Kissimmee, 697 So. 2d 186, 190 (Fla. Dist. Ct. App. 1997); Willingham v. City of Valparaiso, Fla., Case No. 3:11cv542/MCR/CJK, 2012 WL 12919319, at *4 (N.D. Fla. July 31, 2012); Emerson v. Bailey, No. 2:08-cv-560-FtM-29SPC, 2009 WL 1930188, at *6 (M.D. Fla. June 30, 2009); Bailey v. Town of Lady Lake, Fla., No. 5:05-cv-464-Oc-10GRJ, 2007 WL 677995, at *7 (M.D. Fla. Mar. 5, 2007)).) Plaintiff further argues that Article 14 of the City's Collective Bargaining Agreement ("CBA") also provided Plaintiff with a protected property interest in his continued employment. (Id.)
In its Reply, the City argues that although Plaintiff now asserts that the CBA provides him with a protected property interest in his continued employment, "[n]o such allegation appears in the Amended Complaint and the inclusion of such new allegation in response to the City's motion to dismiss is improper." (D.E. 22 (citing Burgess v. Religious Tech. Ct., Inc., 600 F. App'x 657, 665 (11th Cir. 2015)).)
"There can be no doubt that, at a minimum, the Due Process Clause requires notice and the opportunity to be heard incident to the deprivation of life, liberty or property at the hands of the government." Grayden v. Rhodes, 345 F.3d 1225, 1232 (11th Cir. 2003) (citing Mullane v. Cent. Hanover Bank & Tr. Co., 339 U.S. 306, 313, 70 S.Ct. 652, 94 L.Ed. 865 (1950)). "[I]t is equally clear that the government must provide the requisite notice and opportunity for a hearing 'at a meaningful time and in a meaningful manner,' although in 'extraordinary situations' the provision of notice and a hearing may be postponed until after the deprivation has occurred." Id. (quoting Fuentes v. Shevin, 407 U.S. 67, 80, 90, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972)). "If the government fails to comply with the dictates of the Due Process Clause, the aggrieved party can seek compensatory damages and equitable relief under 42 U.S.C. § 1983." Id. (citing McKinney v. Pate, 20 F.3d 1550, 1555, 1557 (11th Cir. 1994)).
"[A] § 1983 claim alleging a denial of procedural due process requires proof of three elements: (1) a deprivation of a constitutionally-protected liberty or property interest; (2) state action; and (3) constitutionally-inadequate process." Id. (citing Cryder v. Oxendine, 24 F.3d 175, 177 (11th Cir. 1994)).
Here, the Parties dispute only the first element—i.e., whether Plaintiff was deprived of a constitutionally-protected property interest. "State law defines the parameters of a plaintiff's property interest for purposes of section 1983." Key W. Harbour Dev. Corp. v. City of Key W., Fla., 987 F.2d 723, 727 (11th Cir. 1993) (citing Paul v. Davis, 424 U.S. 693, 709, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976); Marine One, Inc. v. Manatee Cnty., 877 F.2d 892, 894 (11th Cir. 1989)). "Whether Florida law has created a property interest is a legal question for the court to decide." Id. (citing Marine One, 877 F.2d at 894; Mackenzie v. City of Rockledge, 920 F.2d 1554, 1559 (11th Cir. 1991)).
To begin with, the Court finds that the Amended Complaint does not allege that Plaintiff has a constitutionally-protected property interest in his continued employment with the City pursuant to the CBA. Consequently, the discrete issue before the Court is whether Plaintiff had a constitutionally-protected property interest in his continued employment as a law enforcement officer for the City by virtue of Florida's Law Enforcement Officer's Bill of Rights. The relevant provision of Florida's Law Enforcement Bill of Rights provides, in its entirety:
(4) Notice of disciplinary action; copy of and opportunity to address contents of investigative file; confidentiality.—Fla. Stat. § 112.532(4) (emphasis added).
(a) A dismissal, demotion, transfer, reassignment, or other personnel action that might result in loss of pay or benefits or that might otherwise be considered a punitive measure may not be taken against any law enforcement officer or correctional officer unless the law enforcement officer or correctional officer is notified of the action and the reason or reasons for the action before the effective date of the action.
(b) Notwithstanding s. 112.533(2), whenever a law enforcement officer or correctional officer is subject to disciplinary action consisting of suspension with loss of pay, demotion, or dismissal, the officer or the officer's representative shall, upon request, be provided with a complete copy of the investigative file, including the final investigative report and all evidence, and with the opportunity to address the findings in the report with the employing law enforcement agency before imposing disciplinary action consisting of suspension with loss of pay, demotion, or dismissal. The contents of the complaint and investigation shall remain confidential until such time as the employing law enforcement agency makes a final determination whether or not to issue a notice of disciplinary action consisting of suspension with loss of pay, demotion, or dismissal. This paragraph does not provide law enforcement officers with a property interest or expectancy of continued employment, employment, or appointment as a law enforcement officer.
The Court begins its construction of Section 112.532(4) "where courts should always begin the process of legislative interpretation, and where they often should end it as well, which is with the words of the statutory provision." Harris v. Garner, 216 F.3d 970, 972 (11th Cir. 2000) (citing United States v. Gilbert, 198 F.3d 1293, 1298 (11th Cir. 1999) (citing United States v. Steele, 147 F.3d 1316, 1318 (11th Cir. 1998))). "[C]ourts must presume that a legislature says in a statute what it means and means in a statute what it says there." Conn. Nat'l Bank v. Germain, 503 U.S. 249, 253-54, 112 S.Ct. 1146, 117 L.Ed.2d 391 (1992) (citations omitted). "When the words of a statute are unambiguous, then . . . 'judicial inquiry is complete.' " Id. (quoting Rubin v. United States, 449 U.S. 424, 430, 101 S.Ct. 698, 66 L.Ed.2d 633 (1981)). "Thus, the cardinal rule of statutory construction is that "[w]hen the language of the statute is clear and unambiguous and conveys a clear and definite meaning, there is no occasion for resorting to the rules of statutory interpretation and construction; the statute must be given its plain and obvious meaning." " Birnholz v. 44 Wall St. Fund, Inc., 880 F.2d 335, 341 (11th Cir. 1989) (quoting Streeter v. Sullivan, 509 So. 2d 268, 271 (Fla. 1987) (quoting A.R. Douglass, Inc. v. McRainey, 102 Fla. 1141, 137 So. 157, 159 (1931))).
The Court finds that Section 112.532(4), Florida Statutes, is clear and unambiguous and must be given its plain and obvious meaning. Although Section 112.532(4) accords a police officer who is subject to "dismissal, demotion, transfer, reassignment, or other personnel action that might result in loss of pay or benefits" with certain rights—including the right to be "notified of the action and the reason or reasons for the action before the effective date of the action[,]" Fla. Stat. § 112.532(4)(a)—it explicitly "does not provide law enforcement officers with a property interest or expectancy of continued employment, employment, or appointment as a law enforcement officer." Fla. Stat. § 112.532(4)(b) (emphasis added). See also 40 Fla. Jur. § 48 (observing that Fla. Stat. § 112.532(4) "does not provide law enforcement officers with a property interest or expectancy of continued employment, employment, or appointment as a law enforcement officer"). Therefore, Plaintiff does not have a viable procedural due process claim under Section 1983. See Whitfield v. City of Hallandale Beach, Fla., CASE NO. 19-cv-60926-WPD, 2021 WL 4987938, at *6 (S.D. Fla. May 14, 2021) (granting summary judgment in favor of the City on the plaintiff's procedural due process claim under Section 1983 because the plaintiff did not have a property interest in continued employment with the City).
The statutory interpretation that Plaintiff promotes—i.e., that Section 112.532(4)(b) "only disclaims property interests after an investigation is complete[,]" (D.E. 21 at 5)—is simply not plausible. Plaintiff has cited no case law adopting that interpretation, and the Court's research has revealed none. Although the cases Plaintiff cites find that Section 112.532 establishes a property interest in a law enforcement officer's employment, those cases are either: (1) inapposite because they involve a prior version of the statute that does not contain the provision stating "[t]his paragraph does not provide law enforcement officers with a property interest or expectancy of continued employment . . . as a law enforcement officer[,]" see Grice, 697 So. 2d at 190; or (2) unpersuasive because they rely upon the old, inapposite cases without any independent analysis of the clear and unambiguous language of the current statute, see Willingham, 2012 WL 12919319, at *4; Emerson, 2009 WL 1930188, at *6; Bailey, 2007 WL 677995, at *7.
In Grice, two police officers for the City of Kissimmee Police Department were terminated after an internal investigation but without a formal hearing. 697 So. 2d at 187-89. The officers sued for a violation of their procedural due process rights under Section 1983, and the trial court dismissed their lawsuits. Id. at 189. On appeal, the court of appeals held that the rights conferred by the then-existing " 'Police Officer's Bill of Rights,' [sections 112.531 - 112.535, Florida Statutes] . . . give police officers a property interest in their positions." Id. at 190.
When Grice was decided in 1997, Section 112.532, Florida Statutes did not contain a provision indicating whether the statute did or did not provide law enforcement officers with a property interest or expectancy of continued employment, employment, or appointment as a law enforcement officer. Fla. Stat. § 112.532 (1997). With no clear statutory language on the issue, the court in Grice construed the statute as conferring permanent, non-probationary police officers a property interest in their positions. 697 So. 2d at 190. See also Park v. City of W. Melbourne, 769 So. 2d 397 (Fla. Dist. Ct. App. 2000) (relying on Grice to find that a police officer was denied due process when he was fired without a pre-termination hearing); Dep't of Highway Safety & Motor Vehicles v. Schluter, 705 So. 2d 81, 83 (Fla. Dist. Ct. App. 1997) (relying on Grice to find that "highway patrol officers have a property interest in continued employment" under the Law Enforcement Officer's Bill of Rights).
See Univ. of Cent. Fla. Libraries, Florida Statutes and Laws of Florida, Historical Versions, Statutes, Title X, Part VI, Fla. Stat. § 112.532 (1997), available at https://guides.ucf.edu/floridastatutes/historical (last visited July 22, 2022).
Perhaps in response to Grice and its progeny, in 2003 the Florida legislature amended Section 112.532 and added a provision which stated: "This paragraph shall not be construed to provide law enforcement officers with a property interest or expectancy of continued employment, employment, or appointment as a law enforcement officer." Fla. Stat. § 112.532(4)(b) (2003) (emphasis added). In 2009, the Florida legislature amended the at-issue provision to its current form, replacing "shall not be construed to" with "does not[.]" Fla. Stat. § 112.532(4)(b) (2009) ("This paragraph does not provide law enforcement officers with a property interest or expectancy of continued employment, employment, or appointment as a law enforcement officer.") (emphasis added). This provision is germane to this issue before the Court—i.e., whether Plaintiff had a property interest in his continued employment as a law enforcement officer. Because Grice interpreted a version of Section 112.532 that did not contain the at-issue provision, the Court finds Grice to be inapposite and unhelpful. See Thomas v. Tsvetkov, CIVIL ACTION NO. 1:12-cv-03305-SCJ, 2014 WL 12573398, at *4 (N.D. Ga. Sept. 11, 2014) (declining to apply case law interpreting prior versions of Georgia's "Direct Action" statute that were different than the current version).
See Univ. of Cent. Fla. Libraries, Florida Statutes and Laws of Florida, Historical Versions, Statutes, Title X, Part VI, Fla. Stat. § 112.532 (2003), available at https://guides.ucf.edu/floridastatutes/historical (last visited July 22, 2022).
None of the post-2003 cases that Plaintiff cites even attempt to reconcile the holding in Grice with the new version of the statute. See Willingham, 2012 WL 12919319, at *4; Emerson, 2009 WL 1930188, at *6; Bailey, 2007 WL 677995, at *7.
In Bailey, the court—without citation to any supporting case law—construed Section 112.352, Florida Statutes, as providing a law enforcement officer a property interest in his employment because the statute "limits the power of the appointing body to dismiss an employee." 2007 WL 677995, at *7. However, the Court failed to even mention the last sentence in Section 112.532(4)(b) which, at the time, explicitly stated: "This paragraph shall not be construed to provide law enforcement officers with a property interest or expectancy of continued employment, employment, or appointment as a law enforcement officer." (Emphasis added.)
In Emerson, the court acknowledged the final sentence of Section 112.532(4)(b), but failed to accord it any significance. 2009 WL 1930188, at *8. Rather, the court found that based upon Grice, Park, and Bailey, the plaintiff (a former law enforcement officer) had plausibly alleged a property interest in his employment under Section 112.532, Florida Statutes. Id. The court wholly failed to explain how this finding can be reconciled with the final sentence of Section 112.532(4)(b), which, at the time, explicitly stated: "This paragraph shall not be construed to provide law enforcement officers with a property interest or expectancy of continued employment, employment, or appointment as a law enforcement officer." (Emphasis added.) Indeed, the court failed to acknowledge that Grice and Park were decided under a version of Section 112.532 that did not contain the at-issue provision, and that Bailey completely failed to mention the provision.
In Willingham, the court observed that "[c]ourts have held" that Section 112.532, Florida Statutes "can create a property interest" in a police officer's employment. 2012 WL 12919319, at *4 (citing Park, 769 So. 2d at 398; Schluter, 705 So. 2d at 83; Grice, 697 So. 2d at 190; Emerson, 2009 WL 1930188, at *6-8; Venero v. City of Tampa, Fla., 830 F. Supp. 1457, 1459 (M.D. Fla. 1993)). However, the court wholly failed to mention that: (1) the final sentence of Section 112.532(4)(b) explicitly states: "This paragraph does not provide law enforcement officers with a property interest or expectancy of continued employment, employment, or appointment as a law enforcement officer[,]" (emphasis added); (2) Park, Schluter, Grice, and Venero were decided under a version of the statute that did not contain that provision; and (3) Emerson completely failed to reconcile the pre-2003 case law with the current version of the statute. The Court's own research has revealed no case law attempting to justify or otherwise explain the continuing validity of Grice, Schluter, and Park in the face of the subsequently-added final sentence of Section 112.532(4)(b) explicitly disclaiming any statutorily-conferred property interest in a law enforcement officer's continued employment.
Ultimately, the court in Willingham dismissed the plaintiff's 1983 claim because there were adequate remedies under state law. 2012 WL 12919319, at *5. Defendant has not argued that Count I should be dismissed because there are adequate remedies under state law.
Regardless, the Court finds that Section 112.532(4), Florida Statutes, is clear and unambiguous and must be given its plain and obvious meaning: it "does not provide law enforcement officers with a property interest or expectancy of continued employment, employment, or appointment as a law enforcement officer." Fla. Stat. § 112.532(4)(b) (emphasis added). See also 40 Fla. Jur. § 48 (observing that Fla. Stat. § 112.532(4) "does not provide law enforcement officers with a property interest or expectancy of continued employment, employment, or appointment as a law enforcement officer"). Therefore, Count I must be dismissed for failure to state a claim for a procedural Due Process violation under Section 1983. See Foster v. Cherokee Cnty., 744 F. App'x 644, 647 (11th Cir. 2018) (affirming dismissal of procedural due process claim under Section 1983 where the plaintiff failed to establish a protected property interest in his employment); Laney v. Hosp. Bd. of Dirs. of Lee Cnty., No. 2:09-cv-678-FtM-29SPC, 2010 WL 5161367, at *7 (M.D. Fla. Dec. 14, 2010) (dismissing procedural due process claim under Section 1983 where the plaintiff failed to demonstrate that state law gave her a property interest in her employment).
For these reasons, Count I is dismissed without prejudice. B. Count II: First Amendment violation (retaliation for objecting to financial mismanagement) under 42 U.S.C. § 1983 against the City of Opa-Locka
Count II alleges that the City of Opa-Locka violated Plaintiff's First Amendment rights when it placed him on administrative leave, decreased his pay, and relegated him to a Code Enforcement position in retaliation for objecting to the City's financial mismanagement. (Am. Compl. ¶¶ 65-88.) For the reasons that follow, the Court finds that Count IV plausibly alleges (1) a First Amendment violation and (2) a basis for municipal liability.
i. First Amendment violation
The City argues that Count II should be dismissed pursuant to Garcetti v. Ceballos, 547 U.S. 410, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006), because "Plaintiff purportedly 'complained' regarding alleged improper use of City funds in his capacity as a City police officer and not as a citizen." (D.E. 12 at 10 (citing Am. Compl. ¶¶ 68-70, 79-83).)
Plaintiff argues that he "spoke as a private citizen on matters of public concern when he complained about financial waste in a City laden with financial problems and suffered retaliation in response." (D.E. 21 at 6 (citing Lane v. Franks, 573 U.S. 228, 235-36, 134 S.Ct. 2369, 189 L.Ed.2d 312 (2014)).) He argues that "[t]he critical factor in Garcetti, which is absent from facts alleged in the Amended Complaint, is any notion that the scope of [Plaintiff's] duties as a Captain included managing the City's finances or reporting financial waste." (Id. at 8.) Plaintiff further argues that the City ignored that he alleged each of the elements necessary to state a First Amendment retaliation claim, and that the City has therefore "conceded this point." (Id. at 9-10.)
In its Reply, the City argues that because Plaintiff learned of the alleged financial waste in his role as Police Captain and complained about the financial waste to the Police Chief (as opposed to the City Commission or the press), Plaintiff complained about the financial waste in his role and job duties as a City police officer. (D.E. 22 at 4.) As such, it argues that Count II must be dismissed under Garcetti. (Id.)
The First Amendment provides that "Congress shall make no law . . . abridging the freedom of speech . . . ." U.S. Const. amend. I. "Speech by citizens on matters of public concern lies at the heart of the First Amendment, which 'was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people[.]' " Lane, 573 U.S. at 235-36, 134 S.Ct. 2369 (quoting Roth v. United States, 354 U.S. 476, 484, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957)). "This remains true when speech concerns information related to or learned through public employment. After all, public employees do not renounce their citizenship when they accept employment, and [the Supreme] Court has cautioned time and again that public employers may not condition employment on the relinquishment of constitutional rights." Id. "There is considerable value, moreover, in encouraging, rather than inhibiting, speech by public employees. For '[g]overnment employees are often in the best position to know what ails the agencies for which they work.' " Id. (quoting Waters v. Churchill, 511 U.S. 661, 674, 114 S.Ct. 1878, 128 L.Ed.2d 686 (1994) (plurality opinion)).
However, the Government has a "countervailing interest in controlling the operation of its workplaces." Id. (citing Pickering v. Bd. of Educ. of Twp. High Sch. Dist. 205, Will Cnty. Ill., 391 U.S. 563, 568, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968)). Thus, a court analyzing whether the employee's interest or the government's interest should prevail in cases where the government seeks to curtail the speech of its employees requires "balanc[ing] . . . the interests of the [public employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees." Pickering, 391 U.S. at 568, 88 S.Ct. 1731.
In Garcetti, the Supreme Court described a two-step inquiry to determine whether a public employee's speech is entitled to First Amendment protection:
The first requires determining whether the employee spoke as a citizen on a matter of public concern. If the answer is no, the employee has no First Amendment cause of action based on his or her employer's reaction to the speech. If the answer is yes, then the possibility of a First Amendment claim arises. The question becomes whether the relevant government entity had an adequate justification for treating the employee differently from any other member of the general public.547 U.S. at 418, 126 S.Ct. 1951 (citations omitted). In describing the first step in this inquiry, the Court held that "when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline." Id. at 421, 126 S.Ct. 1951. "The Court identified as relevant two factors that, considered in isolation, are not dispositive: first, whether the speech occurs in the workplace; and second, whether the speech concerns the subject matter of the employee's job." Abdur-Rahman v. Walker, 567 F.3d 1278, 1282 (11th Cir. 2009) (citing Garcetti, 547 U.S. at 420-21, 126 S.Ct. 1951). However, " '[t]he controlling factor' in Garcetti was that [the plaintiff's] statements were made pursuant to his job duties." Id. (quoting Garcetti, 547 U.S. at 421, 126 S.Ct. 1951).
As to the first inquiry, when construed in the light most favorable to Plaintiff, the Amended Complaint plausibly alleges that Plaintiff complained about the City's financial mismanagement as a citizen on a matter of public concern. See Pickering, 391 U.S. at 571-72, 88 S.Ct. 1731 (holding that allocation of school funding "is a matter of legitimate public concern"). Specifically, it alleges "[t]he use or misuse of public funding by a municipality and its agencies constitutes a matter of public concern." (Am. Compl. ¶ 65.) It further alleges that "[a]s a municipality that remains under financial oversight due its history of financial mismanagement, [Plaintiff] was concerned about the waste of public funds as a citizen and for the tax-paying business and residents of the City who rely on the judicious use of precious financial resources that historically were mismanaged." (Id. ¶ 68.) The Amended Complaint does not allege that Plaintiff's duties as Police Captain included budgeting, paying for or approving the Lexipol fees, or disposing of or storing contraband; in fact, it alleges the opposite. (Am. Compl. ¶ 67 ("[Plaintiff's] job duties did not include financial management of the City's Police Department, nor any sub-part thereof. According to the City's Police Department's Directive 100.04, the Chief of Police and Assistant Chief of Police are responsible for 'expenditure of funds and other budgetary-related matters', subject to approval by the City's Finance Director, City Attorney, and/or City Manager (as appropriate).")).
The fact that Plaintiff did not go to the press or the City Commission is relevant, but not dispositive. Alves v. Bd. of Regents of the Univ. Sys. of Ga., 804 F.3d 1149, 1162 (11th Cir. 2015) ("[W]hether the speech at issue was communicated to the public or privately to an individual is relevant—but not dispositive."). The Court notes that Plaintiff voiced his concern to the individual alleged to be responsible for the Police Department's expenditures and budgeting—the Chief of Police. (Am. Compl. ¶ 64.) Thus, the Court is not persuaded that Plaintiff's failure to go to the City Commission or the Press is particularly significant. And there are no allegations that Plaintiff complained of the City's financial mismanagement to further his own private interests. See Alves, 804 F.3d at 1162 (recognizing that the inquiry is whether "the employee spoke on a matter of public concern or on matters of only personal interest") (citing Boyce v. Andrew, 510 F.3d 1333, 1342 (11th Cir. 2007)). Therefore, the Court finds that the Amended Complaint plausibly alleges that Plaintiff spoke as a citizen on a matter of public concern. See Vanlandingham v. City of Abbeville, Ala., 455 F. Supp. 3d 1259, 1266-69 (M.D. Ala. 2020) (finding that police chief plausibly alleged that he was speaking as a citizen on a matter of public concern because, although he learned of the subject matter of the speech in the course of his employment, he made the statement privately and not pursuant to his job responsibilities); Leslie v. Hancock Cnty. Sch. Dist., 994 F. Supp. 2d 1339, 1350-51 (M.D. Ga. 2014) (finding that superintendent and assistant superintendent of school board stated claim for First Amendment retaliation because, inter alia, "there is no indication the Plaintiffs spoke pursuant to their explicit or implicit job duties[,]" and "Plaintiffs allege they complained about an external source of mismanagement which caused 'detrimental ramifications' to the School District"). As such, "the possibility of a First Amendment claim arises." Garcetti, 547 U.S. at 418, 126 S.Ct. 1951.
As to the second inquiry, the Amended Complaint plausibly alleges that the City did not have an adequate justification for treating Plaintiff differently from any other member of the general public. The City does not argue otherwise. Regardless, the Amended Complaint alleges that the City placed Plaintiff on administrative leave, decreased his pay, and relegated him to a Code Enforcement position in retaliation for speaking out on a matter of public concern. (Id. ¶¶ 84-86.) And it specifically alleges that "[t]he City's retaliatory actions against [Plaintiff] were different than actions it could take and/or did take against other members of the public at large, as non-employed personnel are not subject to being demoted, suspended, or humiliated through work assignments." (Id. ¶ 87.) Therefore, the Court finds that when construed in the light most favorable to Plaintiff, Count II states a claim for First Amendment retaliation upon which relief can be granted. See Vanlandingham, 455 F. Supp. 3d at 1268-69; Leslie, 994 F. Supp. 2d at 1351.
ii. Municipal liability
The Court further finds that Count II plausibly alleges a basis for municipal liability under a single-decision-by-a-municipal-policymaker theory.
First, the Court finds that the Amended Complaint does not allege an officially promulgated City policy of retaliating against employees who speak out on financial mismanagement.
Second, the Court finds that the Amended Complaint does not allege a custom or policy of retaliating against employees who speak out on financial mismanagement. To sustain a Monell claim under this theory, Plaintiff must allege facts sufficient to raise an inference that there was "a widespread practice that, 'although not authorized by written law or express municipal policy, is 'so permanent and well settled as to constitute a 'custom or usage' with the force of law[.]' ' " Brown v. City of Ft. Lauderdale, 923 F.2d 1474, 1481 (11th Cir. 1991) (quoting City of St. Louis v. Praprotnik, 485 U.S. 112, 127, 108 S.Ct. 915, 99 L.Ed.2d 107 (1988) (quoting Adickes v. S.H. Kress & Co., 398 U.S. 144, 167-68, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970))). Because the custom must be widespread and repeated, "random acts or isolated incidents are insufficient to establish a custom[.]" Depew v. City of St. Marys, 787 F.2d 1496, 1499 (11th Cir. 1986). See also Marantes v. Miami-Dade Cnty., 649 F. App'x 665, 672 (11th Cir. 2016) ("To establish the existence of a custom, the plaintiff must show a longstanding and widespread practice.") (internal quotation marks omitted) (quoting Craig v. Floyd Cnty., 643 F.3d 1306, 1310 (11th Cir. 2011)). Thus, "[a] single incident of a constitutional violation is insufficient to prove a policy or custom even when the incident involves several employees of the municipality." Craig, 643 F.3d at 1311. Rather, "considerably more proof than [a] single incident [is] necessary." City of Okla. City v. Tuttle, 471 U.S. 808, 824, 105 S.Ct. 2427, 85 L.Ed.2d 791 (1985) (alterations added).
Here, Count II alleges only that "[t]he City has a history of retaliating against those who speak out about gross financial mismanagement / waste of public funds." (Id. ¶ 86.) This conclusory, factually-unsupported allegation is insufficient to plausibly allege a "custom or practice" of retaliation. See Dipietro v. City of Hialeah, 424 F. Supp. 3d 1286, 1297 (S.D. Fla. 2020) (finding that the plaintiff's allegations that the City retaliated against the plaintiff and one other police officer for speaking out against the City's unlawful traffic quota were "clearly deficient" and "fall woefully short of demonstrating the City's practice of retaliating against officers 'constitute[s] the sort of occurrence that is obvious, flagrant, rampant and of continued duration that would establish a causal connection between actions of the supervising official and the alleged constitutional violation' ") (quoting Whitaker v. Miami-Dade Cnty., 126 F. Supp. 3d 1313, 1321 (S.D. Fla. 2015)); Sharp v. City of Montgomery, CASE NO. 2:19-CV-857-WKW, 2021 WL 5989104, at *4 n.4 (M.D. Ala. Dec. 17, 2021) (finding that vague allegations regarding the prevalence of racial discrimination and retaliation in the City of Montgomery, Alabama were "insufficient to convert an averment of a widespread discriminatory practice from speculative to plausible"); Sanchez v. Miami-Dade Cnty., No. 06-21717-CIV, 2007 WL 1746190, at *3 (S.D. Fla. Mar. 28, 2007) (finding that an unsupported "vague allegation" that "the abuse to which the Plaintiff was subjected to was not an isolated incident, and was consistent with policy, custom, and practice of Miami-Dade County" was insufficient to plead a § 1983 municipality liability claim).
However, the Court finds that Count IV alleges municipal liability under a single-decision-by-a-municipal-policymaker theory. "Municipal liability may arise with regards to an employment decision, such as a termination, provided that the decisionmaker 'possesses final authority to establish municipal policy with respect to the action ordered.' " Quinn v. Monroe Cnty., 330 F.3d 1320, 1325 (11th Cir. 2003). "The Eleventh Circuit 'has interpreted Monell's policy or custom requirement to preclude § 1983 municipal liability for a subordinate official's decisions when the final policymaker delegates decisionmaking discretion to the subordinate, but retains the power to review the exercise of that discretion." Id. (quoting Scala, 116 F.3d at 1399). As such, "[f]inal policymaking authority over a particular subject area does not vest in an official whose decisions in the area are subject to meaningful administrative review." Scala, 116 F.3d at 1401.
Here, Count II alleges that in September 2021, the City—through Chief Barriera—retaliated against Plaintiff for speaking out against the City's financial mismanagement by placing him on administrative leave, demoting him from Captain to Sergeant, and relegating him to Code Enforcement. (See Am. Compl. ¶¶ 71, 84-85.) Construed in the light most favorable to Plaintiff, Count II plausibly alleges that a final policymaker retaliated against Plaintiff for speaking out on matters of public concern in violation of his First Amendment rights. See White v. City of Athens, 169 F. Supp. 3d 1254, 1267 (N.D. Ala. 2016) (finding that the complaint plausibly alleged that the city's chief of police and mayor had final policy making authority with respect to disciplining plaintiff). C. Count IV: First Amendment violation (retaliation for filing this lawsuit) under 42 U.S.C. § 1983 against the City of Opa-Locka
Count IV alleges that the City—through Interim Police Chief Steel—retaliated against Plaintiff for filing this lawsuit by refusing to approve his 2021-2022 performance evaluation until Captain Rogers: a) reduces Plaintiff's ratings in the different categories, thereby reducing the Total Rating Score given to Plaintiff, and b) includes negative commentary in the narrative section. (Id. ¶¶ 146-83.) For the reasons that follow, the Court finds that Count IV plausibly alleges (1) a First Amendment violation and (2) a basis for municipal liability.
i. First Amendment violation
The City argues that Count IV should be dismissed because Plaintiff has not alleged an adverse employment action. (D.E. 12 at 11-13.) Specifically, it argues that Interim Police Chief Steel's alleged refusal to approve Plaintiff's 2021-2022 evaluation until Captain Rogers reduces Plaintiff's ratings and adds negative commentary is not an actionable adverse employment action under Davis v. Town of Lake Park, Fla., 245 F.3d 1232, 1239 (11th Cir. 2001). (Id. at 12 (citing Sweeney v. West, 149 F.3d 550, 556 (7th Cir. 1998); Meredith v. Beech Aircraft Corp., 18 F.3d 890, 896 (10th Cir. 1994)).) It argues that the Amended Complaint fails to allege that Steel's alleged refusal to approve the evaluation materially affected the terms or conditions of Plaintiff's employment or "chilled" Plaintiff's speech. (Id.) It further argues that the Amended Complaint fails to allege factual content giving rise to the plausible inference that Steel refused to accept the 2021-2022 evaluation because Plaintiff filed this lawsuit. (Id. at 13.) It argues that "[t]here are no factual allegations that Steel even knew about Plaintiff'[s] March 1, 2022, complaint filed against the City or that Steel took any alleged retaliatory action against Plaintiff because Plaintiff filed a complaint against the City . . . . Steel is not otherwise the 'City.' " (Id.)
Plaintiff argues that the Amended Complaint alleges that he suffered an adverse employment action—and specifically, that the City's "failure to approve the 4.38 performance rating in the annual evaluation and continued delay in approving Perez's annual evaluation had adverse financial consequences for Perez." (D.E. 21 at 10. (citing Am. Compl. ¶ 178).) He further argues that the Amended Complaint alleges that the City's actions would "dissuade a reasonable worker from engaging in protected speech." Id. at 11 (discussing Tatroe v. Cobb Cnty., Ga., No. 1:04-CV-1074-WSD, 2008 WL 361010, at *8 (N.D. Ga. Feb. 8, 2008)).
In its Reply, the City argues that Tatroe is "non-binding" and distinguishable because here the alleged adverse employment action was a claimed delay or refusal in approving Plaintiff's performance evaluation and not a negative employment evaluation. (D.E. 22 at 4-5.) It further argues that "a speculative 'increase in pay' is not actionable adverse action." (Id. at 5.)
"To state a claim for retaliation under the First Amendment, a plaintiff must demonstrate that (1) he engaged in protected speech; (2) the defendant's conduct adversely affected the protected speech; and (3) a causal connection exists between the speech and the defendant's retaliatory actions." Bailey v. Wheeler, 843 F.3d 473, 480 (11th Cir. 2016) (citing Smith v. Mosley, 532 F.3d 1270, 1276 (11th Cir. 2008); Bennett v. Hendrix, 423 F.3d 1247, 1250 (11th Cir. 2005)). Defendant only challenges whether Plaintiff has plausibly alleged the second element.
It is not clear what standard applies in the Eleventh Circuit for determining whether a public employee has suffered an adverse employment action. See Bell v. Sheriff of Broward Cnty., 6 F.4th 1374, 1377 (11th Cir. 2021) (observing that there is conflicting caselaw on the appropriate standard, but declining to resolve the conflict). In 2004, the Eleventh Circuit held in Stavropoulos v. Firestone that a "public employer retaliates [in violation of the First Amendment] when [it] takes an adverse employment action that is likely to chill the exercise of constitutionally protected speech." 361 F.3d 610, 618 (11th Cir. 2004), abrogated as to Title VII standard by Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006). An "adverse employment action" is an action that "involve[s] an important condition of employment," like "discharges, demotions, refusals to hire or promote, and reprimands." Id. at 619.
In 2005, the Eleventh Circuit held in Bennett that a private citizen alleging a First Amendment retaliation claim "suffers adverse action if the defendant's allegedly retaliatory conduct would likely deter a person of ordinary firmness from the exercise of First Amendment rights." 423 F.3d at 1250. The Bennett decision distinguished Stavropoulos for claims brought by private citizens, because "private citizens cannot suffer adverse employment actions at the hands of public officials who are not their employers." Id. at 1252.
In 2006, the Supreme Court held in Burlington Northern that to establish an adverse employment action in a Title VII retaliation case, "a plaintiff must show that a reasonable employee would have found the challenged action materially adverse, which in this context means it well might have 'dissuaded a reasonable worker from making or supporting a charge of discrimination." 548 U.S. at 68, 126 S.Ct. 2405 (internal quotation marks and citations omitted).
Then, in 2016, the Eleventh Circuit in Bailey v. Wheeler applied the Bennett standard—which is essentially the same standard applied to Title VII retaliation claims under Burlington Northern—to a First Amendment retaliation claim brought by a public employee (and specifically, a police officer). 843 F.3d at 477, 480-81. In doing so, the Eleventh Circuit did not even mention Stavropoulos. See id.
Last year, in Bell, the Eleventh Circuit noted the "muddled" precedent on the standard applicable to First Amendment retaliation claims brought by a public employee, but found that it did not need to resolve the conflict because the plaintiff in that case "los[t] under both the Stavropoulos and Bennett standards." 6 F.4th at 1378.
Here, the Court finds that Count IV plausibly alleges an adverse employment action under both the Stavropoulos and Bennett standards. It alleges that Captain Rogers signed Plaintiff's evaluation on March 8, 2022, and Plaintiff received the evaluation on March 8, 2022, "leaving it up to the City - through [Interim Police Chief] Steel - to approve and accept the evaluation." (Am. Compl. ¶ 174.) On March 11, 2022, Plaintiff filed the original Complaint in this action. (D.E. 1.)
[Interim Police Chief] Steel has since refused to approve the 2021-2022 evaluation given to [Plaintiff] on March 8, 2022 and has utilized his new position as the interim Chief of Police as a platform to retaliate against [Plaintiff] for filing the Complaint . . . by refusing to accept the evaluation and instructing [Plaintiff] that he will not do so until Capt. Rogers:
(Id. ¶ 175.) The Amended Complaint alleges the City's failure to accept the evaluation has caused Plaintiff damages, "including the loss of the increase in pay that was supposed to accompany his Annual Evaluation on March 8, 2022." (Id. ¶ 178.) It further alleges that "the City's failure to include the Annual Evaluation with a Total Rating Score of 4.38 in [Plaintiff's] personnel file has damaged [Plaintiff's] reputation." (Id. ¶ 179.)a) reduces [Plaintiff's] ratings in the different categories, thereby reducing the Total Rating Score given to [Plaintiff], and
b) includes negative commentary in the narrative section for [Plaintiff's] evaluation.
Thus, when construed in the light most favorable to Plaintiff, Count IV plausibly alleges something akin to a "refusal to promote"—it alleges a refusal to accept a positive evaluation that would be accompanied by a pay increase. The Court finds that such a refusal "is likely to chill the exercise of constitutionally protected speech." Stavropoulos, 361 F.3d at 618. The Court further finds that such a refusal "would likely deter a person of ordinary firmness from the exercise of First Amendment rights." Bennett, 423 F.3d at 1250. Consequently, Count IV plausibly alleges an adverse employment action under both Stavropoulos and Bennett. See Stern v. Leath, CASE NO. 3:18-CV-807-WKW, 2022 WL 988376, at *18-19 (M.D. Ala. Mar. 31, 2022) (finding that some adverse actions alleged in the complaint failed under both Stavropoulos and Bennett, but finding that certain alleged adverse actions survived dismissal, including that a university provost instructed an associate provost not to give a professor an annual evaluation "which laid the groundwork for denying [the professor] an annual raise and one-time merit supplement in 2018").
ii. Municipal liability
The Court further finds that Count IV plausibly alleges a basis for municipal liability under a single-decision-by-a-municipal-policymaker theory.
First, Plaintiff does not allege an officially promulgated City policy of retaliating against employees who file lawsuits against the City or otherwise speak out against the City's practices.
Second, the Court finds that the Amended Complaint does not allege a custom or policy of retaliating against employees who file lawsuits against the City or otherwise speak out against the City's practices. To sustain this claim under Monell, Plaintiff must allege facts sufficient to raise an inference that there was "a widespread practice that, 'although not authorized by written law or express municipal policy, is 'so permanent and well settled as to constitute a 'custom or usage' with the force of law[.]' ' " Brown, 923 F.2d at 1481 (quoting Praprotnik, 485 U.S. at 127, 108 S.Ct. 915 (quoting Adickes, 398 U.S. at 167-68, 90 S.Ct. 1598)). Because the custom must be widespread and repeated, "random acts or isolated incidents are insufficient to establish a custom[.]" Depew, 787 F.2d at 1499.
Here, Count IV alleges that "[t]he City has a history of retaliating against those who speak out about gross financial mismanagement / waste of public funds and about police mismanagement / governance." (Id. ¶ 181.) This conclusory, factually-unsupported allegation is insufficient to plausibly allege a "custom or practice" of retaliation. See Dipietro, 424 F. Supp. 3d at 1297 (finding that the plaintiff failed to allege an unofficial custom or policy of First Amendment retaliation where the complaint failed to allege similar instances and the court "refuse[d] to infer repeated acts from the [complaint's] conclusory allegation" that another officer was retaliated against during the same instance as plaintiff); Sharp, 2021 WL 5989104, at *4 n.4 (finding that vague allegations regarding the prevalence of racial discrimination and retaliation in the City of Montgomery, Alabama were "insufficient to convert an averment of a widespread discriminatory practice from speculative to plausible"); Sanchez, 2007 WL 1746190, at *3 (finding that an unsupported "vague allegation" that "the abuse to which the Plaintiff was subjected to was not an isolated incident, and was consistent with policy, custom, and practice of Miami-Dade County" was insufficient to plead a § 1983 municipality liability claim).
The Amended Complaint also alleges that "then-Sergeant Steel had a documented history in his personnel file of being untruthful and in retaliating against others within the Police Department." (Am. Compl. ¶ 151; see also id. ¶ 153.) It alleges that "[s]even different Police Officers employed [sic] the City's Police Department reported that then-Sergeant Steel would retaliate against them for speaking up to him, including by denying them vacation requests, verbal counselings, and other means, and that he was not fit as a leader, resulting in the Assistant Chief of Police Sharon Gallimore recommending that then-Sergeant Steel be removed from any supervisory position in November 2019." (Id. ¶ 157.) However, even assuming arguendo that then-Sergeant Steel was a final policymaker, or that his retaliatory conduct was ratified by the City's final policymaker(s), the Amended Complaint contains no facts from which the Court could plausibly infer that these seven police officers engaged in constitutionally-protected speech when Sergeant Steel "retaliate[d]" against them or that the retaliatory conduct adversely affected protected speech. See Bennett v. Hendrix, 423 F.3d 1247, 1250 (11th Cir. 2005) ("To state a retaliation claim, . . . a plaintiff must establish first, that his speech or act was constitutionally protected; second, that the defendant's retaliatory conduct adversely affected the protected speech; and third, that there is a causal connection between the retaliatory actions and the adverse effect on speech."). Consequently, the Court cannot find that Plaintiff plausibly alleged that the City had a custom or policy of engaging in unconstitutional retaliation.
However, the Court finds that Count IV alleges municipal liability under a single-decision-by-a-municipal-policymaker theory. "Municipal liability may arise with regards to an employment decision, such as a termination, provided that the decisionmaker 'possesses final authority to establish municipal policy with respect to the action ordered.' " Quinn, 330 F.3d at 1325. "The Eleventh Circuit 'has interpreted Monell's policy or custom requirement to preclude § 1983 municipal liability for a subordinate official's decisions when the final policymaker delegates decisionmaking discretion to the subordinate, but retains the power to review the exercise of that discretion." Id. (quoting Scala, 116 F.3d at 1399). As such, "[f]inal policymaking authority over a particular subject area does not vest in an official whose decisions in the area are subject to meaningful administrative review." Scala, 116 F.3d at 1401.
Here, Count IV alleges that on March 8, 2022, Captain Alvin Rogers completed Plaintiff's annual evaluation, giving Plaintiff a Total Ratings Score of 4.38 out of 5. (Id. ¶ 172.) Plaintiff signed for having received the evaluation on March 8, 2022, leaving it up to the City - through Interim Police Chief Steel - to approve and accept the evaluation. (Id. ¶ 174.) On March 11, 2022, Plaintiff initiated this lawsuit. (D.E. 1.) Interim Police Chief Steel has since refused to approve Plaintiff's 2021-2022 evaluation and has stated that he will not do so until Captain Rogers: a) reduces Plaintiff's ratings in the different categories, thereby reducing the Total Rating Score given to Plaintiff, and b) includes negative commentary in the narrative section for Plaintiff's evaluation. (Id. ¶ 175.) Plaintiff has repeatedly requested the City to provide him with his annual evaluation for 2021-2022, but it refuses. (Id. ¶ 177.) Plaintiff alleges that Interim Police Chief Steel's refusal to approve the evaluation is retaliation for filing this lawsuit. (Id. ¶ 175-76.) When construed in the light most favorable to Plaintiff, the Court finds that Count IV plausibly alleges that a final policymaker retaliated against Plaintiff for filing this lawsuit in violation of Plaintiff's First Amendment rights.
b. Chief Barreira's Motion (D.E. 19)
Count V alleges a procedural Due Process violation under 42 U.S.C. § 1983 against Chief Barreira. (Am. Compl. ¶¶ 184-225.) Specifically, Count V alleges that Chief Barreira violated Plaintiff's procedural Due Process rights by suspending him without a proper hearing. (Am. Compl. ¶¶ 211-12, 214-15, 220-22).
Chief Barreira moves to dismiss Count V as barred by qualified immunity, (D.E. 19 at 5-7), and for failure to state a claim under 42 U.S.C. § 1983, (id. at 8-11). The Court finds Chief Barreira is entitled to qualified immunity as to Count V, and in any event, Count V fails to state a procedural due process violation under Section 1983.
"Qualified immunity shelters government officials performing discretionary functions from 'liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.' " Corey Airport Servs., Inc. v. Decosta, 587 F.3d 1280, 1284-85 (11th Cir. 2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). "The doctrine 'balances two important interests—the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.' " Id. (quoting Pearson v. Callahan, 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009)). "[Q]ualified immunity protects 'all but the plainly incompetent or those who knowingly violate the law.' " Von Stein v. Brescher, 904 F.2d 572, 579 (11th Cir. 1990) (quoting Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986)). "Because qualified immunity is a defense not only from liability, but also from suit, it is important for a court to ascertain the validity of a qualified immunity defense as early in the lawsuit as possible." Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002) (internal quotation mark and citation omitted).
To receive qualified immunity, the government official must first prove that he was acting within his discretionary authority. Gonzalez v. Reno, 325 F.3d 1228, 1234 (11th Cir. 2003) (citing Vinyard v. Wilson, 311 F.3d 1340, 1346 (11th Cir. 2002)). "A government official acts within his or her discretionary authority if objective circumstances compel the conclusion that challenged actions occurred in the performance of the official's duties and within the scope of this authority." Hill v. Dekalb Reg'l Youth Det. Ctr., 40 F.3d 1176, 1185 n.17 (11th Cir. 1994).
Here, it is undisputed that Chief Barreira was acting within his discretionary authority when he suspended Plaintiff. (See Am. Compl. ¶ 4 (alleging that Chief Barreira "was at all times material . . . the Chief of the Opa-Locka Police Department . . . and acting within the course and scope of his employment with the City"); see also D.E. 19 at 7; D.E. 23 at 2.)
Once a defendant has established that he was acting within his discretionary authority, "the burden shifts to the plaintiff to show that qualified immunity is not appropriate." Paez v. Mulvey, 915 F.3d 1276, 1284 (11th Cir. 2019) (citing Lee, 284 F.3d at 1194). To satisfy this burden, "the plaintiff must demonstrate (1) that 'the facts show that the official violated the plaintiff's constitutional rights' and (2) that 'the law clearly established those rights at the time of the alleged misconduct.' " Mobley v. Palm Beach Cnty. Sheriff Dep't, 783 F.3d 1347, 1352-53 (11th Cir. 2015) (quoting Morton v. Kirkwood, 707 F.3d 1276, 1281 (11th Cir. 2013)); see also Morris v. Town of Lexington Ala., 748 F.3d 1316, 1322 (11th Cir. 2014) (citing Pearson, 555 U.S. at 232, 129 S.Ct. 808).
Chief Barreira argues that the Amended Complaint fails to demonstrate that he "knowingly violated any purported constitutional right or acted incompetently in connection with any decision he made regarding Plaintiff's employment." (D.E. 19 at 7 (emphasis in original).) Rather, it shows that "[a]t all relevant times . . . Chief Barreira was legitimately acting in accord with his job-related duties when he allegedly suspended and/or demoted Plaintiff." (Id.)
Plaintiff argues that he "informed Barreira about the 'policies and procedures that must be followed to terminate a police officer's employment[.]' " (D.E. 23 at 2 (quoting Am. Compl. ¶ 200).) He argues that "[t]hese allegations confirm that Barreira, subsequently, knew about the established rights afforded to his subordinate law enforcement officers." (Id.) He argues that despite this knowledge, "and despite the directions from the City Manager to take no actions, Barreira took it upon himself to disregard the Law Enforcement Officer's Bill of Rights and to disregard the instructions from the City Manager when he suspended [Plaintiff]." (Id. (citing Am. Compl. ¶¶ 206-11).) He argues that the Amended Complaint "specifically alleged that 'Barreira ignored Fla. Stat. § 112.532, and the City's custom and practice . . . when he suspended [Plaintiff] with pay.' " (Id. (quoting Am. Compl. ¶ 212).) He further argues that the Amended Complaint alleges that "Barreira should have known about 'his deliberate indifference to due process rights of the members of the City's Police Department based on his repeatedly ignoring their constitutional rights and being subjected to demand letters, lawsuits, and internal memoranda regarding same.' " (Id. (quoting Am. Compl. ¶ 217).) He further argues that the Amended Complaint's "allegations about how he informed Barreira that he could not have terminated Robert Demoya's employment without following the proper procedure at least implies that Barreira was informed of the impact of the City's Collective Bargaining Agreement ('CBA') on making employment-related decisions." (Id.)
In his Reply, Chief Barreira argues that Plaintiff's Response improperly alleges new facts regarding the CBA. (D.E. 24 at 4.) He argues that Plaintiff cannot amend his Amended Complaint through a response to a motion to dismiss. (Id. (citing Burgess, 600 F. App'x at 665).) He argues that "[n]othing in the Amended Complaint establishes that Chief Barreira acted incompetently or that he knowingly violated any purported constitutional right of Plaintiff's with respect to any employment decision involving Plaintiff." (Id.)
The Court finds that the Amended Complaint fails to allege that Chief Barreira violated Plaintiff's clearly established Constitutional rights. At best, the Amended Complaint alleges that Chief Barreira violated Plaintiff's statutory rights under Florida's Law Enforcement Officer's Bill of Rights, (see Am. Compl. ¶ 212 (citing Fla. Stat. § 112.532)), and contractual rights under the CBA, (see id. ¶¶ 199-200). Even accepting those allegations as true, Plaintiff's argument fails because "section 1983 protects only against violations of federally protected rights." Casines v. Murchek, 766 F.2d 1494, 1501 n.10 (11th Cir. 1985). See also Loftus v. Clark-Moore, 690 F.3d 1200, 1206 (11th Cir. 2012). "[T]he violation of a state statute mandating procedure is not the equivalent of a federal Constitutional violation." First Assembly of God of Naples, Fla., Inc. v. Collier Cnty., Fla., 20 F.3d 419, 422 (11th Cir. 1994). See also Loftus, 690 F.3d at 1206; Smith ex rel. Estate of Smith v. Ford, 488 F. Supp. 3d 1314, 1330 (M.D. Ga. 2020) ("[T]he citations to state statutes are not helpful in showing the violation of a clearly established federal constitutional right.").
Moreover, as discussed in Section III(a)(2)(A), supra, the Amended Complaint does not allege that Plaintiff had a constitutionally-protected property interest in his continued employment with the City pursuant to the CBA, and the Law Enforcement Officer's Bill of Rights "does not provide law enforcement officers with a property interest or expectancy of continued employment, employment, or appointment as a law enforcement officer." Fla. Stat. § 112.532(4)(b) (emphasis added). See also 40 Fla. Jur. § 48 (observing that Fla. Stat. § 112.532(4) "does not provide law enforcement officers with a property interest or expectancy of continued employment, employment, or appointment as a law enforcement officer"). Therefore, even accepting the Amended Complaint's allegations as true and construing them in the light most favorable to Plaintiff, Count V does not allege that Chief Barreira violated Plaintiff's constitutional Due Process rights when he suspended Plaintiff without a hearing. See Loftus, 690 F.3d at 1206 (" '[T]he violation of a state statute mandating procedure is not the equivalent of a federal Constitutional violation.' ") (quoting First Assembly of God, 20 F.3d at 422). As such, Count V is barred by qualified immunity.
Even if Count V was not barred by qualified immunity, for the reasons discussed in Section III(a)(2)(A), supra, it fails to state a procedural due process violation under Section 1983 because Plaintiff has not plausibly alleged that he had a property interest in his continued employment as a police officer with the City.
For these reasons, Count V must be dismissed without prejudice.
IV. Conclusion
Accordingly, it is ORDERED AND ADJUDGED that:
1. Defendant City of Opa-Locka's Motion to Dismiss (D.E. 12) is GRANTED IN PART AND DENIED IN PART consistent with this Order;
2. Defendant Steven Barreira's Motion to Dismiss (D.E. 19) is GRANTED;
3. Counts I and V of Plaintiff's Amended Complaint (D.E. 9) are DISMISSED WITHOUT PREJUDICE;
4. Plaintiff's request for punitive damages is STRICKEN; and
5. Plaintiff shall have FOURTEEN DAYS within which to file a Second
Amended Complaint, if he wishes to do so; and
6. If Plaintiff declines to file a Second Amended Complaint, the City shall have TWENTY-ONE DAYS from the date of this Order within which to file an Answer to Counts II, III and IV of the Amended Complaint.
If Plaintiff chooses to file a Second Amended Complaint, he should endeavor to include only relevant allegations and clearly articulate the legal basis for his claims.
DONE AND ORDERED in Chambers at Miami, Florida this 14th day of September, 2022.