Puglia v. Nienhuis

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

MATTHEW PUGLIA,

Plaintiff,

v. Case No. 8:22-cv-1954-VMC-CPT

ALVIN NIENHUIS, individually

and in his official capacity

as Sheriff of Hernando

County, Florida; KENNETH HAYDEN;

PHILIP LAKIN; SCOTT REAK;

JOHN ELLIS; WILLIAM HILLMAN;

and JOSEPH McCLENNAN,

Defendants.

/

ORDER

This matter is before the Court on consideration of

Defendant Sheriff Alvin Nienhuis, Kenneth Hayden, Philip

Lakin, Scott Reak, John Ellis, William Hillman, and Joseph

McClennan’s Motion to Dismiss Amended Complaint (Doc. # 48),

filed on January 20, 2023. Plaintiff Matthew Puglia responded

on February 17, 2023. (Doc. # 53). The Motion is granted in

part and denied in part as set forth below.

I. Background

Mr. Puglia was hired as a Deputy Sheriff with the

Hernando County Sheriff’s Office (HCSO) in early July 2020.

(Doc. # 47 at 3). “Upon hire, [Mr.] Puglia was classified as

[a] probationary deputy and was required to satisfactorily

serve a probationary period of one year, at which time he

would be deemed a ‘regular appointee’ pursuant to Florida

statute § 30.07(4).” (Id. at 3-4). “All probationary status

deputies are required to successfully complete the field

training program. According to HCSO policy and procedure, the

work performance of probationary deputies is evaluated

monthly.” (Id. at 4).

Mr. Puglia successfully completed his field training in

December 2020, at which point he was assigned to a shift.

(Id.). In March 2021, Mr. Puglia was reassigned to a different

shift. “Up until this time, no disciplinary reports were

directed to [Mr.] Puglia nor was [Mr.] Puglia verbally

informed of any performance deficiencies.” (Id.). Around

April 2021, Defendant McClennan, who is also an HCSO Deputy

Sheriff, “was introduced to [Mr.] Puglia’s significant other

at a shooting range at which [Deputy] McClennan had previously

been employed.” (Id.). Deputy McClennan attempted to connect

with Mr. Puglia’s significant other on Facebook and, over the

next days and weeks, “engaged in sexually-suggestive and

boorish behavior directed to [Mr.] Puglia regarding his

significant other.” (Id.).

In May 2021, in front of multiple deputies as well as

Defendant Reak, an HCSO Lieutenant with “supervisory

responsibility over [Mr.] Puglia,” and Defendant Hillman, an

HCSO Sergeant with “supervisory responsibility over [Mr.]

Puglia,” Deputy McClennan made a rude and sexually explicit

comment about Mr. Puglia’s significant other. (Id. at 2, 5).

Mr. Puglia “objected and told [Deputy] McClennan ‘enough was

enough.’” (Id. at 5). Sergeant Hillman was later verbally

reprimanded by an HCSO member for “failure to censure [Deputy]

McClennan over his inappropriate comments.” (Id. at 6).

Soon thereafter, Mr. Puglia alleges he began facing

retaliatory harassment. (Id. at 7). The retaliatory

harassment included, among other things: (1) the rejection

rate for Mr. Puglia’s reports “surg[ing]”; (2) Lieutenant

Reak’s informing Mr. Puglia that Mr. Puglia had a “bad name,”

was “no longer welcome at HCSO,” and that Mr. Puglia’s report

writing was terrible; (3) Defendant HCSO Colonel Hayden’s

refusal to transfer Mr. Puglia to another squad based on the

retaliation; (4) the extension of Mr. Puglia’s probationary

period through October 5, 2021; (5) the “fabrication” of Mr.

Puglia’s probationary reports for prior months by both

Sergeant Hillman and Defendant Ellis, an HCSO Sergeant with

“supervisory responsibility over [Mr.] Puglia,” who stated

that Mr. Puglia’s “report writing skills were deficient.”

(Id.).

In early September 2021, an HCSO Lieutenant who is not

a defendant in this action emailed a recommendation that Mr.

Puglia’s probation be extended again. (Id. at 8). Defendant

Lakin, an HCSO Major with “supervisory responsibility over

Puglia” as well as Lieutenant Reak and Sergeants Ellis and

Hillman, “requested weekly updates of [Mr.] Puglia’s report

writing progress.” (Id.). In mid-September 2021, Sergeant

Ellis wrote a memo to Major Lakin regarding Mr. Puglia’s

report writing deficiencies, which relied on the “fabricated”

probationary reports. (Id.). A few days later, Major Lakin

wrote a memo to an HCSO Colonel who reported directly to

Sheriff Nienhuis. (Id. at 9). This memo recommended an

extension of Puglia’s probation because of Mr. Puglia’s

alleged performance deficiencies. (Id.).

“A little over a month later, on October 29, 2021, HCSO

placed [Mr.] Puglia on administrative leave pending the

outcome of an Internal Affairs investigation. . . .

Immediately thereafter, [Mr.] Puglia received an Interoffice

Memorandum from Sheriff Nienhuis dated November 1, 2021,

informing him that in light of the Internal Affairs

investigation, Puglia’s probationary period, which had been

previously extended until November 5, 2021, was again

extended until November 30, 2021.” (Id. at 9-10). The Internal

Affairs investigation was based on an accusation by

Lieutenant Reak, Sergeant Ellis, and Sergeant Hillman that

Mr. Puglia “us[ed] anonymous ghost writers to write his

reports” given “the notable improvement in [Mr.] Puglia’s

report writing.” (Id. at 10). However, Mr. Puglia had merely

asked certain other “certified police officers” outside of

the HCSO for “pointers in writing reports,” which was not a

“violation of Florida law.” (Id. at 11). The Internal Affairs

interviews of Lieutenant Reak, Sergeant Ellis, and Sergeant

Hillman “focused on [Mr.] Puglia’s report writing and on

[Deputy] McClennan as well.” (Id. at 12).

During Mr. Puglia’s interview for the Internal Affairs

investigation into his report writing in late November 2021,

Mr. Puglia was asked whether he thought HCSO had responded

appropriately to Deputy McClennan’s “hostile workplace

behavior” by issuing McClennan an Employee Improvement

Report. (Id. at 13). Mr. Puglia stated that he was not

satisfied with the discipline Deputy McClennan received

because he did not think it “was [sufficient] for that kind

of comment” and because, after Deputy McClennan was

disciplined, “things started getting worse[,] like [Mr.

Puglia] heard from other deputies that [he] was considered[,]

being called a rat because Sergeant, Sergeant . . . Hillman

or Reak got in trouble.” (Id. at 13-14).

On December 7, 2021, Investigator Stephens, who headed

the Internal Affairs investigation, “sent an Interoffice

Memorandum to [Sheriff] Nienhuis presenting the complete

Investigative Report for [Sheriff] Nienhuis’ review and

sustaining the alleged violations against [Mr.] Puglia.” (Id.

at 14). Also on December 7, “after [Mr.] Puglia’s second

probationary period had run on November 30, 2021, Major Hayden

prepared an Interoffice Memorandum to Sheriff Nienhuis dated

December 8, 2021, recommending that Sheriff Nienhuis

terminate [Mr.] Puglia immediately” based on performance

deficiencies. (Id.).

Major Hayden’s December 8 Interoffice Memorandum stated

that Mr. Puglia’s probationary status had only been extended

twice, up through November 30, 2021. (Id. at 15). This is

notable because, as the amended complaint explains in a

footnote, Mr. Puglia’s counsel was provided during this

litigation “an Interoffice Memorandum dated November 29,

2021, from Major Hayden” that “purports to be a third

extension of [Mr.] Puglia’s probationary period until

December 18, 2021, that was allegedly provided to [Mr.] Puglia

on November 30, 2021.” (Id. at 15 n.4). Mr. Puglia does not

recall being given a copy of this document on November 30,

2021, nor was the document turned over “pursuant to multiple

public records requests.” (Id.). “Upon information and

belief, the purported third probationary period did not take

effect because it did not receive required approvals through

the HCSO chain of command.” (Id.).

Later on December 8, 2021, “a letter was prepared by

Sheriff Nienhuis terminating [Mr.] Puglia.” (Id. at 16).

According to the amended complaint, Mr. Puglia “had completed

his second probationary extension at the time of his

termination and therefore was in fact a career-service member

entitled to certain rights and procedural protections.” (Id.

at 17).

“By correspondence to [Major] Hayden dated December 17,

2021, counsel for [Mr.] Puglia requested a name clearing

hearing pursuant to [Sheriff] Nienhuis’ termination letter.”

(Id.). “In an email dated December 30, 2021, Major Hayden

responded saying that ‘[t]he purpose of a Name-Clearing is

limited to affording a separated employee the opportunity to

clear his or her name with regard to any factual matters

contained in a public record. The Sheriff’s Office is sincere

in its desire to reduce the risk of error in this matter. In

lieu of the recorded meeting[,] a statement may be provided

by Mr. Puglia to be included in his personnel file.’” (Id.).

“On December 31, 2021, counsel for [Mr.] Puglia responded and

stated that ‘[i]n lieu of scheduling a meeting, [Puglia] would

prefer to provide a statement to be included in his personnel

file. I have attached a copy of the letter that I sent to the

Sheriff three weeks ago. It tells my client’s side of the

story.’” (Id. at 17-18). Mr. Puglia alleges that the

submission of the name-clearing letter by his counsel was a

name-clearing hearing, but such hearing was “meaningless”

because of “the bad faith manner with which he was treated by

HCSO” — that is, the earlier placement of “fabricated” reports

and memoranda “in his personnel file that resulted in his

termination.” (Id. at 21). Additionally, he alleges that

“HCSO never made any findings as to the contents of his

written submission and [Mr.] Puglia received no response from

HCSO.” (Id. at 18).

Mr. Puglia also alleges that the HCSO provided “a false

affidavit-of-separation” to the Florida Department of Law

Enforcement stating that Mr. Puglia’s employment ended via

“voluntary separation” in order “to cover up its illegal

behavior with regard to its trampling of [Mr.] Puglia’s due

process rights.” (Id. at 18-19). “The absence of an adequate

state remedy to cure HCSO’s failure to provide a meaningful

opportunity for [Mr.] Puglia to clear his name is established

by HCSO’s execution and submission of the false termination

affidavit and its submission to the FDLE pursuant to Florida

statute § 943.139(2).” (Id. at 22).

Mr. Puglia initiated this case on August 25, 2022,

asserting claims under 42 U.S.C. § 1983 for violation of his

Fourteenth Amendment due process rights and for First

Amendment retaliation. (Doc. # 1). Upon Defendants’ motion to

dismiss, the Court dismissed the First Amendment retaliation

claim with prejudice and granted leave to amend the due

process claims. (Doc. # 45).

Puglia then filed an amended complaint on January 6,

2023, asserting a Fourteenth Amendment due process property

interest claim (Count I) and due process liberty interest

claim (Count II). (Doc. # 47). Now, Defendants move to dismiss

both claims with prejudice. (Doc. # 48). Puglia has responded

(Doc. # 53), and the Motion is ripe for review.

II. Legal Standard

On a motion to dismiss pursuant to Rule 12(b)(6), this

Court accepts as true all the allegations in the complaint

and construes them in the light most favorable to the

plaintiff. Jackson v. Bellsouth Telecomms., 372 F.3d 1250,

1262 (11th Cir. 2004). Further, the Court favors the plaintiff

with all reasonable inferences from the allegations in the

complaint. Stephens v. Dep’t of Health & Human Servs., 901

F.2d 1571, 1573 (11th Cir. 1990). But,

[w]hile a complaint attacked by a Rule 12(b)(6)

motion to dismiss does not need detailed factual

allegations, a plaintiff’s obligation to provide

the grounds of his entitlement to relief requires

more than labels and conclusions, and a formulaic

recitation of the elements of a cause of action

will not do. Factual allegations must be enough to

raise a right to relief above the speculative

level.

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal

citations omitted). Courts are not “bound to accept as true

a legal conclusion couched as a factual allegation.” Papasan

v. Allain, 478 U.S. 265, 286 (1986). The Court must limit its

consideration to well-pleaded factual allegations, documents

central to or referenced in the complaint, and matters

judicially noticed. La Grasta v. First Union Sec., Inc., 358

F.3d 840, 845 (11th Cir. 2004).

III. Analysis

A. Due Process Property Interest Claim

In Count I, Mr. Puglia asserts a procedural due process

claim based on his alleged property interest in his

employment. (Doc. # 47 at 19-21). He alleges that he

“completed his extended probationary periods on November 30,

2021, and was therefore a career-service officer pursuant to

Section 5(a) of House Bill 1441 and HCSO General Order

3065.00. By virtue of [his] status as a career-service

officer, [Mr.] Puglia possessed a protected property interest

in continued employment with HCSO.” (Id. at 20).

The Fourteenth Amendment prohibits states from depriving

anyone of “life, liberty, or property, without due process of

law.” U.S. Const. amend XIV, § 1. “Procedural due process

rules are not meant to protect persons from the deprivation,

but from the mistaken or unjustified deprivation of life,

liberty, or property.” Carey v. Piphus, 435 U.S. 247, 259

(1978). “To prevail on a procedural due process claim,

Plaintiff must establish: (1) a constitutionally

protected interest in life, liberty or property; (2)

governmental deprivation of that interest; and (3) the

constitutional inadequacy of procedures accompanying the

deprivation.” Lacy v. City of St. Petersburg, Fla., No. 8:14-

cv-252-VMC-TGW, 2014 WL 4376201, at *5 (M.D. Fla. Sept. 4,

2014) (citing Bank of Jackson Cnty. v. Cherry, 980 F.2d 1362,

1366 (11th Cir. 1993)), aff’d, 608 F. App’x 911 (11th Cir.

2015). “The essential elements of procedural due process are

notice and an opportunity to be heard before one is deprived

of a protected interest.” Id.

“Because deputy sheriffs are not employees and both

their selection and retention come under the absolute control

of the sheriff, courts have held that Florida deputy sheriffs

have no property or liberty interests in their positions for

purposes of the Fourteenth Amendment.” Stough v. Gallagher,

967 F.2d 1523, 1530 (11th Cir. 1992). A “limited exception

provides that deputy sheriffs can hold a property interest in

their employment pursuant to a career civil service system.”

Wicher v. Osceola Cnty. Sheriff’s Off., No. 6:10-cv-1072-ACC-

GJK, 2011 WL 13136514, at *4 (M.D. Fla. Sept. 16,

2011), aff’d, 503 F. App’x 732 (11th Cir. 2013).

According to Defendants, this claim fails because Mr.

Puglia was still on probationary status — and thus did not

have a protected property interest in continued employment —

as of December 8, 2021. (Doc. # 48 at 8-10). Although they

acknowledge Puglia’s allegation that he was not on probation

at the time of his termination, Defendants maintain that this

allegation is implausible: “[Mr.] Puglia’s Amended Complaint

invites this Court to believe it was plausible that he

successfully completed his probationary status as a deputy

sheriff between the temporal period of November 30, 2021 and

December 8, 2021, a temporal period when he remained on paid

administrative leave, his Internal Affairs investigation

remained pending, and while he had not yet been reinstated to

active duty from his paid administrative leave.”1 (Id. at 9).

According to Defendants, the amended complaint’s “allegations

confirm that [Mr.] Puglia could not have a reasonable belief

of being elevated to career service status unless and until

(1) the pending Internal Affairs investigation into his

possible policy violations had been completed, and (2) his

administrative leave ended and (3) he returned to active duty

as a deputy sheriff” but the amended complaint “establishes

that these three things did not ever happen.” (Id.).

The Court disagrees with Defendants. As with the prior

motion to dismiss, Defendant’s argument that Mr. Puglia did

not have a property interest in his job because he was a

probationary employee fails at this stage. The amended

complaint explicitly alleges that Mr. Puglia’s extended

probationary status ended on November 30, 2021. (Doc. # 47 at

1 Defendants also cite in the background section of their

Motion a document dated November 29, 2021, that purports to

extend Puglia’s probationary status through December 18,

2021. (Doc. # 48 at 3; Doc. # 49). Notably, however,

Defendants do not address or rely on this document in their

argument for dismissal. (Doc. # 48 at 8-10). Additionally,

Puglia disputes the authenticity and “veracity” of this

document. (Doc. # 53 at 6). Indeed, in the amended complaint,

Puglia raises doubts about the document and further alleges

that this “purported third probationary period did not take

effect because it did not receive required approvals through

the HCSO chain of command.” (Doc. # 47 at 15 n.4).

10). Mr. Puglia was not terminated until December 8, 2021,

“after [Mr.] Puglia’s second probationary period had run” and

he had become a career-service officer. (Id. at 14, 20). Thus,

taking all allegations as true, Mr. Puglia has plausibly

alleged that he was terminated after his probationary status

had ended and he was a career-service officer with a property

interest in his employment. The Court will not draw inferences

against Mr. Puglia, as Defendants would have the Court do by

assuming that Mr. Puglia must still have been on probation on

December 8 because he was on administrative leave at that

time. Defendants, however, will have the opportunity to raise

this argument again at the summary judgment stage.

The Motion is denied as to Count I.

B. Due Process Liberty Interest Claim

“[W]hen 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). “To establish a liberty

interest claim, [Mr. Puglia] must establish: (1) a false

statement; (2) of a stigmatizing nature; (3) attending a

governmental employee’s discharge; (4) made public; (5) by

the governmental employer; and (6) without a meaningful

opportunity for a name clearing hearing.” Whitfield v. City

of Hallandale Beach, Fla., No. 19-CV-60926-WPD, 2021 WL

4987938, at *7 (S.D. Fla. May 14, 2021) (citing Buxton v.

City of Plant City, Fla., 871 F.2d 1037, 1042-43 (11th Cir.

1989)). “The hearing can be held either before or after the

termination or publication.” Cotton, 216 F.3d at 1330.

Only the sixth element is at issue for Count II here.

“With regard to this last element, . . . the process due is

that which will allow the aggrieved party to ‘clear his

name.’ This means that during the name clearing hearing the

employee must have the opportunity to ‘support his

allegations by argument however brief, and, if need be, by

proof, however informal.’” Lapham v. Fla. Dep’t of Corr., No.

07-80964-CIV, 2009 WL 151161, at *2 (S.D. Fla. Jan. 21, 2009)

(quoting Harrison v. Wille, 132 F.3d 679, 683 n.9 (11th Cir.

1998); Campbell v. Pierce County Ga., 741 F.2d 1342, 1345

(11th Cir. 1984)). “[T]his opportunity [for a name-

clearing hearing] is not as strict as the process required

before one can be deprived of a property interest.” Id. at *2

(quoting Harrison, 132 F.3d at 683 n.9).

Here, Mr. Puglia has not plausibly alleged that there

was not “a meaningful opportunity for a name clearing

hearing.” Whitfield, 2021 WL 4987938, at *7. Rather, the

amended complaint alleges that Mr. Puglia was offered a name-

clearing hearing or the alternate option to submit a name-

clearing letter for his personnel file. (Doc. # 47 at 17).

Furthermore, the amended complaint alleges that Mr. Puglia,

through his counsel, elected to submit a name-clearing letter

rather than hold a name-clearing hearing. (Id.). And, indeed,

Mr. Puglia’s counsel drafted and submitted such name-clearing

letter, which was placed in Mr. Puglia’s personnel file. (Id.

at 17-18).

While Mr. Puglia alleges this “name clearing hearing was

tainted and rendered meaningless by the bad faith manner with

which he was treated by HCSO” and that “HCSO took no further

action and made no findings as to [Mr.] Puglia’s defenses”

(Id. at 21), these allegations do not plausibly state a

liberty interest claim. “[T]he only process due [Mr. Puglia]

to protect his liberty interest was a ‘name clearing

hearing.’” Harrison, 132 F.3d at 683 n.9. Thus, a liberty

interest claim based on reputational damage does not exist

where a plaintiff has had a name-clearing opportunity but is

simply displeased with the result. See Campbell, 741 F.2d at

1346 (“[T]he purpose of the hearing was not to re-evaluate

appellant’s termination but to allow her to clear her name.”);

Lapham, 2009 WL 151161, at *2 (“To the extent that the

opportunity for name clearing was not ‘meaningful’ to him

because the hearing officer failed to credit his testimony

over that of other witnesses, i.e. to the extent that the

defendant failed resolve the facts in a manner satisfactory

to Lapham to correct the record to eliminate the alleged false

charges, such allegations of unfairness do not render the

process constitutionally inadequate.”); see also Hogan v.

City of Fort Walton Beach, 817 F. App’x 717, 722 (11th Cir.

2020) (“Hogan’s disciplinary appeal hearing was an adequate

state remedy. As Hogan admitted in his complaint, he received

notice of the basis for his termination. Moreover, Hogan

admitted that he was permitted to (and indeed did) ‘present

facts and/or information’ at the hearing. In other words, he

was afforded an opportunity to present his case. Nothing more

is required. While a post-deprivation hearing must be

‘meaningful,’ there is no requirement that the employee be

permitted to ask questions.” (citation omitted)).

Here, Mr. Puglia alleges he “was provided a name-

clearing hearing” in the form of a name-clearing letter

drafted by Mr. Puglia’s counsel telling Mr. Puglia’s “side of

the story” — a method Mr. Puglia chose over an actual hearing.2

2 While it could be argued that Mr. Puglia waived his right

to a name-clearing hearing by electing to submit a name-

(Doc. # 47 at 21-22). This was sufficient process, even though

“the HCSO took no further action and made no findings as to

[Mr.] Puglia’s defenses.” (Id. at 22); see Medina v. City of

Hialeah, No. 02-20957-CIV, 2003 WL 1562281, at *5 (S.D. Fla.

Mar. 24, 2003) (“Plaintiff cannot voluntarily squander an

opportunity for name-clearing and still blame the City for

depriving him of a due process interest. Furthermore, the

hearing is not a forum to adjudge guilt or innocence of the

charges for which he was terminated — just to relate the other

side of the story. Plaintiff seems to have confused the name-

clearing hearing with a termination hearing regarding a due

process deprivation of a property interest.” (citation

omitted)). The Court emphasizes that “the remedy mandated by

the Due Process Clause of the Fourteenth Amendment is ‘an

opportunity to refute the charge’” — and that is exactly what

Mr. Puglia was able to do in his name-clearing letter. Codd

v. Velger, 429 U.S. 624, 627 (1977). The allegations that

Defendants behaved in a bad faith manner towards Mr. Puglia

by fabricating reports in his personnel file before his

termination and that the Sheriff did not change his mind about

clearing letter into his personnel file instead of conducting

a hearing, the Court will assume — as Mr. Puglia does — that

the name-clearing letter was equivalent to a name-clearing

hearing for the purposes of this Motion.

terminating Mr. Puglia based on the name-clearing letter do

not plausibly support that Mr. Puglia was deprived of an

opportunity to clear his name after his termination.

In short, the Court “agrees with Defendants that [this

claim] is subject to dismissal because the allegations show

that [Mr. Puglia] received a name-clearing hearing which is

all that is required to protect his liberty interest under

the Fourteenth Amendment’s Due Process Clause.” Hayden v.

Ala. Dep’t of Pub. Safety, 506 F. Supp. 2d 944, 954 (M.D.

Ala. 2007). Because Mr. Puglia has already had an opportunity

to amend this claim and the Court considers further amendment

futile, Count II is dismissed with prejudice.

C. Qualified Immunity

Finally, Defendants assert briefly at the beginning of

the Motion’s section regarding Count II that the liberty

interest claim is also subject to dismissal based on qualified

immunity.3 (Doc. # 48 at 10). Then, in a subsequent footnote

regarding only the due process liberty interest claim, they

state: “Defendants will not reargue their contentions

3 The Court notes that Defendants do not mention qualified

immunity regarding Count I, the property interest claim, in

their Motion. Thus, Defendants have not raised the defense of

qualified immunity as to Count I — not even by their

reincorporation of the arguments on qualified immunity from

the previous motion to dismiss.

regarding the propriety of liberty interest damages under

Section 1983 and qualified immunity since such arguments were

presented in their original Motion to Dismiss []. Such prior

arguments are reincorporated by reference herein.” (Doc. # 48

at 10 n.8).

The Court is disappointed that Defendants failed to

raise this argument in the body of their Motion. “Such

incorporation by reference is improper, and it foists upon

the Court the burden of sifting through irrelevant materials

to find the materials referenced while permitting the movant

to circumvent this Court’s page limit requirement.” Mobile

Shelter Sys. USA, Inc. v. Grate Pallet Sols., LLC, 845 F.

Supp. 2d 1241, 1253 (M.D. Fla. 2012), aff’d, 505 F. App’x 928

(11th Cir. 2013).

Nevertheless, the Court will consider the argument as to

Count II. Mr. Puglia does not argue in his response that

Defendants’ reincorporation by footnote of its prior

qualified immunity argument is inappropriate. Instead, he

argues in his own footnote: “With respect to qualified

immunity, the Amended Complaint addresses issues raised by

the Defendants in their prior motion as to that issue, and

therefore [Mr.] Puglia in turn incorporates by reference his

arguments raised in response to Defendants’ initial motion to

dismiss as to qualified immunity.” (Doc. # 53 at 11 n.6).

Furthermore, a true incorporation of the previous motion’s

qualified immunity argument and argument regarding liberty

interest damages does not bring the instant Motion over the

page limit set by Local Rule 3.01(a). See Local Rule 3.01(a),

M.D. Fla. (setting a twenty-five-page limit for motions).

Thus, the reincorporation by footnote is not an attempt by

Defendants to end-run the page limit for this Motion. See

Bryant v. Jones, No. 1:04-CV-2462WSD, 2006 WL 584762, at *6

(N.D. Ga. Mar. 10, 2006), as amended (Mar. 20, 2006) (“[W]hen

a party incorporates by reference an entire section of another

brief, it is the Court’s position that the incorporated

section should count against the 25-page and 15-page limits

set out in Local Rule 7.1(D). In several instances,

Defendants’ incorporation of other brief sections in their

initial briefs and reply briefs extend their briefs well

beyond the page limits provided by Local Rule 7.1(D).”).

On to the qualified immunity analysis, which provides an

alternate basis for dismissal of Count II. Notably, the

parties do not dispute that the individual Defendants were

acting pursuant to their discretionary authority when the

constitutional violation occurred. See Hinson v. Bias, 927

F.3d 1103, 1116 (11th Cir. 2019) (“To invoke qualified

immunity, a public official must first demonstrate that he

was acting within the scope of his or her discretionary

authority. The term ‘discretionary authority’ covers all

actions of a governmental official that (1) were undertaken

pursuant to the performance of his duties, and (2) were within

the scope of his authority.” (citations and internal

quotation marks omitted)).

Qualified immunity protects government officials

performing discretionary functions from being sued in their

individual capacities unless their conduct violates a clearly

established statutory or constitutional right. Brannon v.

Finkelstein, 754 F.3d 1269, 1278 (11th Cir. 2014). “Assessing

a claim of qualified immunity involves a two-step process:

once a defendant raises the defense, the plaintiff bears

the burden of establishing both that the defendant committed

a constitutional violation and that the law governing the

circumstances was already clearly established at the time of

the violation.” Youmans v. Gagnon, 626 F.3d 557, 562 (11th

Cir. 2010). Courts are “free to consider these elements in

either sequence and to decide the case on the basis of

either element that is not demonstrated.” Id.

Here, the Court need only address the “clearly

established” law prong. A right is clearly established when

it is “sufficiently clear that every reasonable official

would have understood that what he is doing violates that

right.” Johnson v. City of Miami Beach, 18 F.4th 1267, 1273

(11th Cir. 2021) (quoting Mullenix v. Luna, 577 U.S. 7, 11

(2015)). “The usual way of establishing that a constitutional

violation was clearly established law is by pointing to a

case, in existence at the time, in which the Supreme Court or

[the Eleventh Circuit] found a violation based on materially

similar facts.” Id. (citation omitted).

A “plaintiff can also show that a

broader, clearly established principle should control the

novel facts of a particular case.” Waldron v. Spicher, 954

F.3d 1297, 1305 (11th Cir. 2020). “[T]he principle must be

established with obvious clarity by the case law so that

every objectively reasonable government official facing the

circumstances would know that the official’s conduct did

violate federal law when the official acted.” Id. (citation

omitted). That is, “in the light of pre-existing law, the

unlawfulness must be apparent.” Id. (citation

omitted). “Third, a plaintiff could show that the case ‘fits

within the exception of conduct which so obviously violates

[the] Constitution that prior case law is unnecessary.’” Id.

(citation omitted). “This third test is a narrow category

encompassing those situations where ‘the official’s conduct

lies so very obviously at the very core of what the [relevant

constitutional provision] prohibits that the unlawfulness of

the conduct was readily apparent to the official,

notwithstanding lack of case law.’” Id. (citation omitted).

Even assuming for the sake of argument that Defendants’

conduct was unconstitutional, Mr. Puglia has not carried his

burden of establishing that the law rendering Defendants’

actions unconstitutional was clearly established. Again, Mr.

Puglia chose not to brief the qualified immunity issue in his

response to the Motion. Rather, he reincorporated his

previous arguments against qualified immunity from his

response to the motion to dismiss the original complaint. See

(Doc. # 53 at 11 n.6) (“With respect to qualified immunity,

the Amended Complaint addresses issues raised by the

Defendants in their prior motion as to that issue, and

therefore Puglia in turn incorporates by reference his

arguments raised in response to Defendants’ initial motion to

dismiss as to qualified immunity.”).

This is perplexing given the Court’s discussion of

qualified immunity in its December 20, 2022 Order, in which

the Court alternatively held that the Defendants were

entitled to qualified immunity on the First Amendment

retaliation claim. In so holding, the Court wrote:

The Court notes that, in his response to the Motion,

Puglia fails to identify what case law he maintains

“clearly establishes” that the individual

Defendants’ conduct violated his rights. Indeed,

Puglia cites no case law at all in his discussion

of whether it was clearly established that

Defendants’ actions were unconstitutional. (Doc. #

39 at 17-18). This failure to carry his burden also

supports the grant of qualified immunity for the

individual Defendants. See Villagrana v. Vill. of

Oswego, No. 04 C 4603, 2005 WL 217033, at *4 (N.D.

Ill. Jan. 28, 2005) (“Villagrana cites no ‘closely

correspond[ing]’ case law suggesting that Johnson’s

actions violated his clearly established rights to

familial privacy; indeed, he cites no case law at

all. Though it is unnecessary for the plaintiff to

specifically cite the legal basis for his claim in

his pleading so as long as the facts alleged would

support relief, when a plaintiff responds to a

motion to dismiss that raises a qualified immunity

defense, the plaintiff bears the burden of proving

the existence of a clearly established right.

Villagrana has failed to do so. Thus, his family

privacy claim is dismissed.” (citations omitted));

Walker v. City of Orem, 451 F.3d 1139, 1151 (10th

Cir. 2006) (“Plaintiffs had the burden, in response

to defendants’ motion to dismiss, of articulating

such clearly-established law.”).

(Doc. # 45 at 30 n.3).

Thus, Mr. Puglia was well aware that his response to the

motion to dismiss the original complaint, which made no effort

to cite law clearly establishing the constitutional rights he

alleges were violated, was wholly insufficient to defeat

Defendants’ claim to qualified immunity. Yet, Mr. Puglia has

chosen to cursorily reincorporate through a footnote that

insufficient prior response as his only defense to

Defendants’ claim of qualified immunity here.

In short, Mr. Puglia has not met his burden of

establishing that the law rendering Defendants’ actions

unconstitutional was already clearly established at the time

of the alleged due process liberty interest violation.

Defendants Kenneth Hayden, Philip Lakin, Scott Reak, John

Ellis, William Hillman, and Joseph McClennan, as well as

Sheriff Nienhuis to the extent he is sued individually, are

alternatively entitled to qualified immunity on Count II of

the amended complaint.

IV. Conclusion

The case will proceed as to Count I, the property

interest claim. But Count II, the liberty interest claim, is

dismissed with prejudice.

Accordingly, it is hereby

ORDERED, ADJUDGED, and DECREED:

(1) Defendant Sheriff Alvin Nienhuis, Kenneth Hayden, Philip

Lakin, Scott Reak, John Ellis, William Hillman, and

Joseph McClennan’s Motion to Dismiss Amended Complaint

(Doc. # 48) is GRANTED in part and DENIED in part.

(2) Count II is dismissed with prejudice.

(3) Defendants’ answer to Count I of the amended complaint

is due 14 days from the date of this Order.

DONE and ORDERED in Chambers in Tampa, Florida, this

31st day of March, 2023.

Larneis tr. Hecnepley Ce’

VIR IA M. HERNANDEZ’COVINGTON

UNITED STATES DISTRICT JUDGE

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