The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
BOBBY SHED,
Plaintiff,
v. Case No: 8:22-cv-1327-KKM-TGW
UNIVERSITY OF SOUTH FLORIDA
BOARD OF TRUSTEES, et al.,
Defendants.
___________________________________
ORDER
The sole remaining claim brought by Plaintiff Bobby Shed is against his former
professor Murat Munkin under 42 U.S.C. § 1983 for violating his constitutional rights
under the Equal Protection Clause by denying him disability accommodations in
retaliation for making race-based complaints. 5th Am. Compl. (Doc. 58) ¶¶ 54–77.
Munkin moves for judgment on the pleadings, arguing that this count for retaliation under
the Fourteenth Amendment fails to state a claim for relief. (Doc. 125.). The Court grants
the motion.
I. BACKGROUND
Shed was a Ph.D. student at the University of South Florida (USF) beginning in
2017. 5th Am. Compl. ¶ 9. He was provided funding as a part of this position, including
grants and a position as a graduate assistant. . ¶ 11, 14. Shed is “a Black American, gay
male with disabilities.” . ¶ 16.
Shed filed several internal complaints alleging racial discrimination at USF.
First, on August 10, 2018, he filed a “formal, written, good faith complaint with USF’s
Office of Diversity Inclusion and Equal Opportunity” “based on racial treatment [he]
experienced which he perceived to be incommensurate with the treatment of similarly
situated individuals.” . ¶¶ 17–18. Then, on September 1, 2019, he filed a complaint
“which documented that USF Police issued citations to Black people” at a higher rate than
their representation on campus. . ¶¶ 58–59. Finally, on March 6, 2020, Shed “submitted
a formal, written, good-faith Whistleblower Report and Grievance complaint.” ¶ 86.
Shed alleges that his internal complaints were not timely reviewed and that adverse
actions were taken against him after he filed them. For example, he alleges that his
scholarship and graduate assistant funding was withheld and he was eventually dismissed
from the Ph.D. and graduate programs. ¶¶ 19, 42–43. Specifically concerning Munkin,
Shed alleges that Munkin “provided Plaintiff with a cumulative final exam instead of an
exam comparable to the one he provided to and announced to the class which was
non-cumulative.” ¶ 61. And Shed alleges that Munkin denied him extra time on quizzes
and opportunity to reschedule quizzes, neither of which happened prior to Shed filing his
complaints. ¶ 65–66.
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Shed commenced this action against USF and several members of its staff in their
individual and official capacities, including Camille Blake, Joanne Adamchak, Deborah
McCarthy, Moez Limayem, Jacqueline Reck, Jianping QI, Ninon Sutton, Scott Besley,
and Murat Munkin. After transfer and multiple rounds of repleading due to defects in the
complaint, Defendants filed a motion to dismiss the Fifth Amended Complaint. The
Court dismissed all claims in the Fifth Amended Complaint except Count III, to the extent
Shed asserts a claim against Munkin in his individual capacity for retaliation under the
Fourteenth Amendment. (Doc. 121.) Munkin now moves for judgment on the pleadings
because Count III fails as a matter of law. Mot. for J. on Pleadings (Doc. 125) at 4–9.
II. LEGAL STANDARD
“Judgment on the pleadings is appropriate when no issues of material fact are raised
in the pleadings and the movant is entitled to judgment as a matter of law.”
, 236 F.3d 658, 660 (11th Cir. 2000) (citation omitted). “A motion for
judgment on the pleadings is governed by the same standard as a motion to dismiss under
Rule 12(b)(6).” , 910 F.3d 1345, 1350 (11th Cir.
2018) (citation omitted). Thus, to survive a motion for judgment on the pleadings, the
complaint must contain enough facts to state a claim for relief that is plausible on its face.
, 550 U.S. 544, 570 (2007). In reviewing a motion for
judgment on the pleadings, a court must accept the facts in the complaint as true and view
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them in the light most favorable to the nonmoving party. , 774
F.3d 1329, 1335 (11th Cir. 2014). “[D]ocuments that are not a part of the pleading may
be considered, as long as they are central to the claim at issue and their authenticity is
undisputed.” . at 1340 n.12 (citations omitted).
III. ANALYSIS
Count III alleges that Munkin refused Shed his disability accommodations in
retaliation for making race-based complaints, citing the Equal Protection Clause of the
Fourteenth Amendment. 5th Am. Compl. ¶¶ 54–77. Shed does not allege he was
retaliated against on account of his race, but rather because he filed internal complaints
alleging race discrimination at USF. ¶¶ 64–66, 68, 73. Shed’s problem is that the
Equal Protection Clause of the Fourteenth Amendment does not include a cause of action
for general retaliation. Thus, Shed has failed to state a plausible claim for relief in Count
III.
Neither the Supreme Court nor the Eleventh Circuit has recognized an equal
protection right to be free from retaliation. Quite the opposite. The Eleventh Circuit has
held that “[a] pure or generic retaliation claim . . . simply does not implicate the Equal
Protection Clause.” , 105 F.3d 1344, 1354 (11th Cir. 1997) (citations
omitted); , 62 F.3d 338, 341 (11th Cir. 1995) (“[N]o
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established right exists under the Equal Protection Clause to be free from retaliation.”).1
Because Shed does no more than claim Munkin violated his equal protection rights by
retaliating against him for filing race-based complaints, 5th Am. Compl. ¶¶ 61–72, his
equal protection claim fails as a matter of law, even accepting all allegations as true. Put
differently, if Munkin did in fact intentionally retaliate against Shed by denying him
disability accommodations and giving him a harder final exam because Shed filed race-
based complaints, that conduct, although objectionable, does not give rise to a retaliation
claim under the Equal Protection Clause. And although the I hold pro se pleadings to “less
stringent standards,” I “cannot act as de facto counsel or rewrite an otherwise deficient
pleading to sustain an action.” , 981 F.3d 903, 911 (11th Cir. 2020)
(quotations omitted).
Even assuming Shed’s equal protection claim was somehow plausible, Munkin
would be entitled to qualified immunity. Mot. for J. on Pleadings at 5–8. “The right to be
free from retaliation is clearly established as a right and as a right
under Title VII; but no clearly established right exists under the clause to
be free from retaliation.” , 62 F.3d at 340. Thus, because “no established right exists
under the equal protection clause to be free from retaliation,” even accepting as true all facts
1 Six other Courts of Appeals have also held that the Equal Protection Clause cannot sustain a general,
pure claim of retaliation. , 970 F.3d 452, 461–62 (4th Cir. 2020) (collecting cases).
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as true and construing them in the light most favorable to Shed, Shed cannot demonstrate
that Munkin violated a clearly established constitutional right under the Equal Protection
Clause. , 62 F.3d at 341 (reversing the district court’s denial of qualified immunity
on the plaintiff’s equal protection claim because there is no clearly established right to be
free from retaliation under the Equal Protection Clause); , 105 F.3d at
1354 (collecting cases).
Shed filed an untimely response, arguing at length that the “undisputed material
facts satisfy the elements of retaliation and discrimination” and therefore, judgment should
be entered in his favor. Pl.’s Resp. (Doc. 133) at 7–19. But Shed cannot avoid precedent
which forecloses his claim of retaliation under the Equal Protection Clause. , 105
F.3d at 1354. Further, the cases Shed cites are from another circuit and do no displace
Eleventh Circuit precedent or its authority in this Court. Pl.’s Resp. at 13 (citing
, 801 F.3d 72, 80 (2d Cir. 2015);
, 562 F. App’x 25, 29 (2d Cir. 2014)).
IV. CONCLUSION
Shed has not stated a plausible claim for relief in Count III. Because that is the only
claim remaining after four opportunities for amendment, Defendant Munkin is entitled to
judgment on the pleadings. The following is ORDERED:
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1. Defendant Munkin’s motion for judgment on the pleadings (Doc. 125) is
GRANTED.
2. The Court construes Plaintiffs objections (Doc. 132) to the Court's Order
on Defendants’ Motion to Dismiss (Doc. 121) as a motion for
reconsideration. The motion for reconsideration (Doc. 132) is DENIED.
3. The Clerk is directed to TERMINATE any pending motions and
deadlines, to enter JUDGMENT in Defendant Munkin’s favor, and to
CLOSE this case.
ORDERED in Tampa, Florida, on September 8, 2023.
pall
United States District Judge