Oswald v. Diggs

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

FORT MYERS DIVISION

DONALD E. OSWALD,

Plaintiff,

v. Case No.: 2:22-cv-247-SPC-NPM

DERRICK DIGGS and CITY OF

FORT MYERS, FLORIDA,

Defendants.

/

OPINION AND ORDER1

Before the Court are Chief Derrick Diggs’ Motion to Dismiss (Doc. 41)

and Donald Oswald’s Response in Opposition (Doc. 43). Diggs presents five

arguments for dismissing Count I of the Amended Complaint. For the reasons

that follow, the Court is persuaded by two of those arguments, is unconvinced

by one, and finds that two arguments need not be addressed at present.

Consequently, the motion is granted on two grounds.

1 Papers hyperlinked to CM/ECF may be subject to PACER fees. By using hyperlinks, the

Court does not endorse, recommend, approve, or guarantee any third parties or their services

or products, nor does it have any agreements with them. The Court is not responsible for a

hyperlink’s functionality, and a failed hyperlink does not affect this Order.

BACKGROUND2

The Court recounts the factual background as pleaded in the Amended

Complaint, which it must take as true to decide whether the Amended

Complaint states a plausible claim. See Chandler v. Sec’y Fla. Dep’t of Transp.,

695 F.3d 1194, 1198–99 (11th Cir. 2012).

After a long and distinguished career in law enforcement, Oswald

became the Inspector General of the Fort Myers, Florida Police Department

(“FMPD”). In Chief Diggs’ presence, Oswald witnessed Command Major Bill

Newhouse directly order an officer of lower rank to withhold from the city

council information about a $30 to $35 million overrun on constructing a new

police headquarters until the project was too far completed to be abandoned.

Oswald perceived this “order” to be an act “of gross mismanagement, waste,

[and] gross neglect of duty,” and he reported what he had witnessed to the

mayor and the city attorney. (Doc. 9 ¶ 21–22).

Oswald prepared a written complaint for Diggs charging Newhouse with

unethical conduct and violations of five FMPD policies (“Newhouse

Complaint”). Because Diggs was a witness, the Newhouse Complaint included

2 The Amended Complaint includes information about other allegedly stigmatizing

statements. Because, as discussed below, Oswald has sufficiently pleaded that the

statements that preceded his resignation attended his discharge, the background section

omits the statements that followed his resignation.

Oswald’s recommendation that Diggs delegate investigative authority over the

Newhouse Complaint to the city attorney’s office or an outside firm.

Diggs was angered by the Newhouse Complaint and by the fact that

Oswald had discussed the Newhouse matter with the city attorney without

first telling him. Diggs then “commenced a campaign of discrimination and

retaliation against” Oswald. (Doc. 9 ¶ 27). Diggs departed from past practice

by excluding Oswald from command staff meetings; opened an investigation

into Oswald’s alleged breaches of the standard of conduct and his divulging of

internal information; and widely expressed his loss of confidence in Oswald.

Most pertinent to Count I, Diggs did not recuse himself from the internal

affairs investigation into the Newhouse Complaint. And because he was a

witness to Newhouse’s alleged statements, Diggs testified for the investigation.

In that testimony, he contradicted much of what Oswald reported, and he

stated, “there are numerous inaccuracies and things that were taken out of

context on the report that [Oswald] put together.” (Doc. 9 ¶ 36).

When Diggs received the Report of Investigation into the Newhouse

Complaint, he completed a Final Action Summary that labelled the Newhouse

Complaint “Unfounded,” which FMPD policy defines as: “the allegation is

demonstrably false or there is no credible evidence to support it.” (Doc. 9 ¶ 37).

Oswald alleges this communicated that Diggs believed Oswald “was a liar or

at best grossly incompetent—the Newhouse Complaint was based on false or

not credible evidence.” (Doc. 9 ¶ 37). Oswald alleges that the “Unfounded”

judgment was false and far harsher and more stigmatizing than other options3

would have been. He also alleges that the label “reflected [Diggs’] poor

estimation and lack of confidence in [Oswald].” (Doc. 9 ¶ 38). And because the

Report of Investigation and the Final Action Summary forms are public

records, they are readily available for review by the public.

Shortly thereafter, the FMPD had a very eventful day. First, Newhouse

was informed that Diggs had dismissed the Newhouse Complaint. Second,

Newhouse filed a counter-complaint against Oswald alleging that Oswald had

contacted the city attorney without seeking or obtaining Diggs’ approval, that

Oswald’s filing of the Newhouse Complaint constituted conduct unbecoming

an officer, and that Oswald violated Florida law by telling people outside the

FMPD about the Newhouse Complaint. Third, Diggs opened an internal

affairs investigation into the counter-complaint. And finally, Diggs sent

Oswald a memorandum outlining the events of the day and requesting Oswald

provide any additional information and the names of any witnesses to the

3 FMPD policy offered Diggs two alternative dispositions for the Report of Investigation that

would have cleared Newhouse of the Newhouse Complaint’s allegations:

• “Exonerated”: the facts, after a completed investigation, “suggest that the alleged

incident did occur, but that the employee’s actions were lawful, proper, and consistent

with department policy”; and

• “Not Sustained”: “the facts presented are insufficient to prove the allegation by a

preponderance of the evidence.”

(Doc. 9 ¶ 38).

investigator who would be handling the counter-complaint against him.

Oswald alleges these events were coordinated, and not coincidental.

A little more than a week later, Oswald resigned. In his letter of

resignation, he stated he was “left with no other option” because he had

“endured overt retaliation and [was] now being forced out of [his] position.”

(Doc. 9 ¶45–46). Oswald alleges these circumstances existed at the time of his

resignation and would have convinced a reasonable person in Oswald’s position

to resign:

• Diggs “effectively excommunicated [Oswald] from the FMPD

command staff”;

• Oswald’s requests that Diggs and another investigator be recused

from handling the Newhouse Complaint were repeatedly ignored;

• Diggs ordered Oswald not to report his continuing ethics concerns

to city leadership;

• Diggs was both a witness in the Newhouse Complaint and its

adjudicator;

• Diggs dismissed the Newhouse Complaint as “Unfounded” and

being unsupported by credible evidence;

• Diggs implicitly communicated his loss of confidence in Oswald;

and

• Given the nature of Oswald’s job as Inspector General, Diggs’ loss

of confidence effectively meant the end of Oswald’s career.

(Doc. 9 ¶ 47).

Before he left the FMPD, Oswald submitted a written request for the

opportunity “to review [the counter-complaint against him], all witness

statements, including all other existing subject officer statements, and all

other existing evidence . . . relating to the incident under investigation in order

that [he could] provide a voluntary statement.” (Doc. 9 ¶ 56). FMPD did not

honor Oswald’s requests but, instead, asked Oswald to provide “a Name

Clearing Letter for inclusion in the investigative case file.” (Doc. 9 ¶ 57).

Oswald did not file a Name Clearing Letter.

Oswald has now sued the City of Fort Myers and Diggs, alleging violation

of 42 U.S.C. § 1983 (Count I) and Violation of the Florida Public Employee

Whistle-blower’s Act, Fla. Stat. §§ 112.3187–3195 (Count IV). Diggs moves the

Court to dismiss Count I against him.

LEGAL STANDARD

Together, Federal Rules of Civil Procedure 8 and 10 establish the

minimum pleading requirements. A complaint must contain “a short and plain

statement of the claim showing that the pleader is entitled to relief.” Fed. R.

Civ. P. 8(a)(2). And each “party must state its claims or defenses in numbered

paragraphs, each limited as far as practicable to a single set of circumstances.”

Fed. R. Civ. P. 10(b).

A defendant can attack a complaint for failing to state a claim upon

which relief can be granted. Fed. R. Civ. P. 12(b)(6). To survive a Rule 12(b)(6)

motion, “a complaint must contain sufficient factual matter, accepted as true,

to state a claim that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662,

678 (2009) (internal quotation marks omitted). A party must plead more than

“labels and conclusions, and a formulaic recitation of the elements of a cause

of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).

In considering a motion to dismiss, a court must accept all factual

allegations in a complaint as true and take them in the light most favorable to

the plaintiff. See Pielage v. McConnell, 516 F.3d 1282, 1284 (11th Cir. 2008)

(citation omitted). But acceptance of a complaint’s allegations is limited to

well-pleaded allegations. See La Grasta v. First Union Sec., Inc., 358 F.3d 840,

845 (11th Cir. 2004) (citations omitted).

DISCUSSION

Oswald appears to bring Count I’s due process allegations against Diggs

in both his individual and official capacities. (Doc. 9 at 28–29). As Diggs points

out, Oswald’s pleadings tactic is problematic because he also brings Count I

against the City of Fort Myers, which renders the official capacity allegations

duplicative. (Doc. 41 at 2 n.2). Indeed, “when an officer is sued under Section

1983 in his or her official capacity, the suit is simply another way of pleading

an action against an entity of which an officer is an agent.” Busby v. City of

Orlando, 931 F.2d 764, 776 (11th Cir. 1991) (citations and internal quotation

marks omitted). And it would be “redundant and possibly confusing to the

jury” to keep both the entity and the officer sued in his official capacity as

defendants. Id. So to avoid redundancy and confusion, Count I is dismissed

against Diggs in his official capacity. This leaves Count I against Diggs in his

individual capacity (and against the City of Fort Myers). The discussion that

follows thus pertains to Count I’s allegations against Diggs in his individual

capacity.

The Fourteenth Amendment to the United States Constitution provides

that “[n]o state shall . . . deprive any person of life, liberty, or property, without

due process of law.” U.S. Const. amend. XIV. “When reputational damage is

sustained in connection with a termination of employment, it may give rise to

a procedural due process claim for deprivation of liberty which is actionable

under section 1983.” Cotton v. Jackson, 216 F.3d 1328, 1330 (11th Cir. 2000)

(per curiam) (citation omitted). There are three elements for a § 1983

procedural due process claim: (1) “a deprivation of a constitutionally-protected

liberty or property interest”; (2) “state action”; and (3) “a ‘constitutionally

inadequate process.’” Foxy Lady, Inc. v. City of Atlanta, Ga., 347 F.3d 1232,

1236 (11th Cir. 2003) (per curiam) (quoting Cryder v. Oxendine, 24 F.3d 175,

177 (11th Cir. 1994)).

To establish a deprivation of procedural due process, a plaintiff must

show: (1) a false statement, (2) of a stigmatizing nature, (3) attending a

governmental employee’s discharge, (4) was made public, (5) by the

governmental employer, (6) without a meaningful opportunity for the employee

to have a name-clearing hearing. Cotton, 216 F.3d at 1330 (citations omitted).

Diggs argues five deficiencies require dismissal of Count I. Not so, says

Oswald. The Court will address each argument.4

1. Does Florida law afford Oswald an adequate remedy?

Diggs argues that Oswald could have pursued mandamus relief to

compel a name-clearing hearing and that Count I should be dismissed because

Oswald fails to allege that he sought due process relief and was denied it. For

his part, Oswald disputes the availability of mandamus relief and questions

whether—were mandamus relief available—it would be adequate for § 1983

purposes.5

4 With one exception. Because the Court dismisses Count I on other substantive grounds, it

will not address whether Diggs is entitled to qualified immunity. See Faucher v. Rodziewicz,

891 F.2d 864, 871 (11th Cir. 1990).

5 As an aside, Oswald relies on the Eleventh Circuit’s conclusion in Johnston v. Borders

(“Johnston I”)—an opinion about deprivation of procedural due process vis-à-vis denial

of a name-clearing hearing—that mandamus was unavailable to the plaintiff because it

would be inadequate to clear the plaintiff’s name. 724 F. App’x 762, 768 (11th Cir. 2018)

(per curiam). But in a subsequent opinion in the same case (“Johnston II”), the court

clarified that its earlier conclusion was based on the parties’ briefing, specifically that

“[A] procedural due process violation is not complete ‘unless and until

the State fails to provide due process.’” McKinney v. Pate, 20 F.3d 1550, 1557

(11th Cir. 1994) (en banc) (citation omitted). “In other words, the state may

cure a procedural deprivation by providing a later procedural remedy; only

when the state refuses to provide a process sufficient to remedy the procedural

deprivation does a constitutional violation actionable under section 1983

arise.” Id. If adequate state processes are available, a federal court lacks

subject matter jurisdiction to entertain a procedural due process claim. Cotton,

216 F.3d at 1330–31.

When the protected liberty interest at issue is the plaintiff’s interest in

his reputation, the process needed to protect that liberty interest is a name-

clearing hearing. See Harrison v. Wille, 132 F.3d 679, 683 n.9 (11th Cir. 1998)

(citations omitted). That name-clearing hearing can be held either before or

after the termination or publication. Cotton, 216 F.3d at 1330 (citation

omitted). The “inquiry concerns whether adequate procedures were available

to [the plaintiff] to protect his right not to be deprived of his liberty interest in

his reputation by state action without the opportunity for a name-clearing

the defendant’s brief contended that mandamus relief would be insufficient to remedy

the plaintiff’s claimed lack of notice. Johnston v. Borders, 36 F.4th 1254, 1266 (11th Cir.

2022). Johnston II characterized Johnston I’s conclusion as “dubious” and emphasized it

was “non-precedential.” Id. at 1266 n.18. The Court is not persuaded that mandamus

relief would be inadequate here based solely on the non-binding statement in Johnston I

to the contrary.

hearing.” Id. at 1331. And if such procedures exist, and the plaintiff failed to

use them, then he cannot maintain his due process claim. Id.

Oswald alleges he requested by letter an opportunity to review the

evidence in the investigation of the counter-complaint against him, but the

FMPD did not provide that evidence. Oswald alleges that he received an email

that referenced his written request and asked him to provide a name-clearing

letter to include in the investigative file. He states, “[t]he request was not a

meaningful name clearing opportunity and, in any event, was never

completed.” (Doc. 9 ¶ 57). Oswald responded to the email with a request for

clarification: “a name clearing letter is customarily offered by an accused

officer after an investigation is closed . . . . I am not clear about whether the

investigation has concluded. Is [the matter] currently an [open] or closed

[Internal Affairs] investigation.” (Doc. 9 ¶ 57). He alleges he received no reply,

and “no such [name-clearing] letter was filed.” (Doc. 9 ¶ 57). In support of

Count I, Oswald alleges he “was not afforded a meaningful opportunity to clear

his name.” (Doc. 9 at 29).

Based on Oswald’s allegations, he did not receive the caliber of name-

clearing that he sought. But it is also clear that he neither pressed for the

hearing he wanted, nor did he memorialize his side of the story when the

FMPD asked him to provide a name-clearing letter.

But perhaps more damning is what Oswald has failed to allege: that

there were no adequate state remedies to cure the failure to provide a name-

clearing hearing. This failure dooms his claim. See Ladd v. City of W. Palm

Beach, 681 F. App’x 814, 818–19 (11th Cir. 2017) (per curiam); McKinney, 20

F.3d 1563 n.18. Even if Oswald suffered a procedural deprivation at Diggs’

hands, “he has not suffered a violation of his procedural due process rights

unless and until the State of Florida refuses to make available a means to

remedy the deprivation.” See McKinney, 20 F.3d at 1563. Count I must be

dismissed.

2. Did Oswald elect to resign his position voluntarily?

Diggs also argues the allegations in the Amended Complaint illustrate

that Oswald voluntarily resigned, so due process requirements were not

implicated. Diggs says Oswald’s resignation did not result from deception or a

misrepresentation of material fact, nor was Oswald coerced or placed under

duress to resign. Instead, Diggs contends the allegations show Oswald had

other alternatives but still resigned.

Oswald disagrees with Diggs’ characterization of his allegations, and he

maintains this is a fact-intensive inquiry that cannot and should not be

resolved in a motion to dismiss. Oswald also contends Diggs fails to address

an alternate test for characterizing a resignation as involuntary, and under

that analysis, the argument goes, Oswald was constructively discharged.

Due Process is not implicated if an employee resigned voluntarily.

Hargray v. City of Hallandale, 57 F.3d 1560, 1568 (11th Cir. 1995) (per

curiam). And the law generally presumes that resignations are voluntary and

the exercise of free choice. Id. In two cases an employee’s resignation will be

considered involuntary, and thus a deprivation of due process: (1) where the

employer forces the resignation by coercion or duress, or (2) where the

employer obtains the resignation by deceiving or misrepresenting a material

fact to the employee. Id.

Oswald urges the Court to apply another analysis: Were working

conditions so intolerable that a reasonable person in Oswald’s position would

feel compelled to resign? But that standard applies in discrimination cases.

Oswald has not cited, and Court has not found, a case in which the Eleventh

Circuit has applied that analysis to an alleged due process violation. In fact,

the Eleventh Circuit has recently reaffirmed Hargray’s application to due

process cases and rejected its application to Title VII cases. See Davis v. Legal

Services Alabama, Inc., 19 F.4th 1261, 1268 (11th Cir. 2021) (per curiam) (“We

do not agree that Hargray is instructive in [analyzing a Title VII constructive

discharge claim]. Rather, Hargray is about whether a resignation from public

employment that had been requested by the employer was sufficiently

involuntary to trigger the protections of the Due Process Clause.”).

Oswald relies only on the inapplicable “intolerable working conditions”

standard, and he offers no response to Diggs’ argument that his

resignation was voluntary under the Eleventh Circuit’s “coercion, duress,

deception, or misrepresentation” standard.

An employee’s perception that resignation is his only option is irrelevant.

Rademakers v. Scott, 350 F. App’x 408, 412 (11th Cir. 2009) (per curiam).

“Similarly, the mere fact that the choice is between comparably unpleasant

alternatives—e.g., resignation or facing disciplinary charges—does not of itself

establish that a resignation was induced by duress or coercion, hence was

involuntary.” Id. (quoting Stone v. Univ. of Md. Med. Sys. Corp., 855 F.2d 167,

174 (4th Cir.1988)).

Because the Amended Complaint does not allege that Oswald’s

resignation stemmed from deceit, material misrepresentation, coercion, or

duress, his termination was voluntary.6 Under the allegations of his Amended

Complaint, Oswald’s resignation was not caused by state action and cannot

6 “The question of whether coercion or misrepresentation is present is a legal

one.” Hargray, 57 F.3d at 1567 n.6 (citing Reich v. Dep’t of Conservation and Natural

Res., 28 F.3d 1076, 1082 (11th Cir. 1994)). The Court is to conduct an objective inquiry

in both cases; it asks whether the resignation was objectively a product of free will—not

whether the employee perceived that resignation was his only option or whether the

employer intended to mislead the employee. Hargray, 57 F.3d at 1568, 1570. But the

facts must be established before addressing the question of law. Poindexter v. Dep’t of

Hum. Res., 946 F. Supp. 2d 1278, 1286 (M.D. Ala. 2013). And yet, Oswald has made no

allegations that speak to either analysis. Because the amended complaint lacks

allegations that Oswald’s resignation stemmed from coercion, duress, deception, or

misrepresentation, it simply fails to state a claim under the applicable standard.

sustain a claim of deprivation of due process under the Fourteenth

Amendment. Count I must be dismissed for this reason, too.

3. Were Diggs’ allegedly false and stigmatizing statements

attendant to Oswald’s discharge?

Diggs argues the Amended Complaint does not state a plausible § 1983

claim because his allegedly stigmatizing statements were not made along with

his decisions about Oswald’s employment. Oswald responds that Diggs

misapplies the six-part test to establish a deprivation of procedural due

procedure. He says the issue is not whether Diggs’ statements were made along

with Diggs’ decisions about Oswald’s employment; instead, the Court considers

whether the statements attended Oswald’s discharge.

The Court agrees with Oswald and rejects Digg’s position because his

application of the stigma-plus analysis is too restrictive. Because the public

could perceive that Diggs’ statements were connected to or occurred during

what Oswald alleges to be a constructive discharge, the allegations sufficiently

plead that Diggs’ statements attended Oswald’s discharge. Cannon v. City of

W. Palm Beach, 250 F.3d 1299, 1302 n.1 (11th Cir. 2001) (citing Owen v. City

of Indep., 445 U.S. 622, 633 n.13 (1980)); Ray v. Tennessee Valley Auth., 677

F.2d 818, 824 (11th Cir. 1982). Dismissal is not appropriate on this ground.

4. Does Oswald seek available relief for the alleged deprivation

of his liberty interest?

Oswald seeks reinstatement, compensatory damages, special damages,

and punitive damages. Diggs argues Oswald has not alleged that those

damages flowed from the alleged harm—denial of an opportunity for a name-

clearing hearing. And because Oswald fails to seek relief that would compel a

name-clearing hearing, Diggs argues his § 1983 claim must be dismissed.

But Oswald contends the Amended Complaint “most certainly pleads

and requests equitable relief—Inspector General Oswald seeks a meaningful

opportunity to clear his name via a name clearing hearing.” (Doc. 43 at 15).

He notes that the Amended Complaint requests injunctive relief

(reinstatement) and “such further relief as the Court deems just and proper”

(Doc. 9 at 34), and he disputes Diggs’ argument that monetary relief is

unavailable.

The Court need not determine whether money damages are available at

this point.7 But the Court is persuaded that Oswald has failed to seek relief

7 The Court assumes that the parties’ dispute over this issue is substantially borne of

dueling concurring opinions that accompany Johnston II, which was published only

weeks ago. The majority opinion addressed the availability of damages only in dicta. See

Johnston II, 36 F.4th at 1264 n.13, 1269 n.25. But in a special concurrence, Judge Tjoflat

opined at length that under the Due Process Clause, a name-clearing hearing—and not

money damages—was the available remedy. Id. at 1290–93. Judge Jordan disagreed

and wrote to express his opinion that “[a]s a number of courts have held, nominal and

compensatory damages may be available to a discharged employee if granting a name-

clearing hearing many years after the fact would not ‘reverse any ill effects’ from the

denial or inadequacy of a hearing,” but “[g]iven the way [that] case was litigated, [the

that would compel a name-clearing hearing. Despite Oswald’s contention

otherwise (Doc. 43 at 15), the Amended Complaint does not explicitly request

injunctive relief compelling a name-clearing hearing. Should Oswald amend,

he should remedy this oversight.

VOLUNTARY DISMISSALS

One housekeeping matter warrants attention. This case started as a

four-count complaint against the City of Fort Myers and Diggs, as well as

against the FMPD, Lesa Breneman, and William Newhouse. (Doc. 1; Doc. 9).

Oswald has since narrowed the scope of litigation. He has voluntarily

dismissed (1) the FMPD as a defendant; and (2) Counts II and III, which

eliminated Breneman and Newhouse from this action. (Doc. 32). The Court

has addressed that dismissal. (Doc. 33)

But it has not yet addressed Oswald’s Second Notice of Voluntary

Dismissal. (Doc. 39). It does so now. Oswald has dismissed Count IV against

Diggs “in his individual capacity only” but still proceeds against him “in his

official capacity and defendant City of Fort Myers.” (Doc. 39 at 1). A problem

for Oswald, however, is proceeding against Diggs in his official capacity is

likely duplicative of proceeding against the City of Fort Myers. See, e.g., Busby,

Eleventh Circuit had] no occasion to opine on the availability of compensatory damages.”

Id. at 1289 (citations omitted).

931 F.2d at 776 (“To keep both the City [of Orlando] and the officers sued in

their official capacity as defendants in this case would have been redundant

and possibly confusing to the jury.”). Because neither party has addressed the

duplicative nature of Count IV after the Second Notice of Voluntary Dismissal,

the Court mentions this matter only for Oswald to consider when filing a

second amended complaint.

CONCLUSION

The Court grants the motion to dismiss (Doc. 41) and dismisses Count I

against Chief Derrick Diggs without prejudice. Should Oswald choose to

amend, that second amended complaint must remedy Count I’s deficiencies

and reflect the housekeeping matters concerning Oswald’s earlier changes to

claims and parties. Doing so will allow the parties and the Court to rely on an

operative pleading that accurately reflects the state of play.

Accordingly, it is now

ORDERED:

Defendant Diggs’ Motion to Dismiss (Doc. 41) is GRANTED to the

extent that Count I is dismissed without prejudice as to Diggs in his

individual and official capacities. Oswald may file a second amended

complaint on or before September 15, 2022.

DONE and ORDERED in Fort Myers, Florida on September 1, 2022.

ites POLSTER atta

UNITED STATES DISTRICT JUDGE

Copies: All Parties of Record

19