Gaffney v. Rives

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

TERESA M. GAFFNEY,

Plaintiff,

v. Case No: 8:22-cv-1613-CEH-SPF

MARIE T RIVES, JOSHUA E.

DOYLE, LINDSEY M GUINAND,

PATRICIA ANN SAVITZ and PETER

R. RAMSBERGER, ATTORNEY

GENERAL ASHLEY MOODY

Defendants.

ORDER

This cause comes before the Court upon Defendant Marie T. Rives’ Motion to

Dismiss and Incorporated Memorandum of Law (Doc. 20) and Defendants Joshua E.

Doyle and Lindsey M. Guinand’s Motion to Dismiss and Incorporated Memorandum

of Law (Doc. 21). Plaintiff Teresa M. Gaffney responds in opposition to both motions.

Docs. 42, 46. Doyle and Guinand filed a reply (Doc. 51), as did Rives (Doc. 47). Doyle

and Guinand also filed a notice of supplemental authority. Doc. 40. For the reasons

set forth below, the Court will grant the motions to dismiss.

I. BACKGROUND1

In 2009, John J. Gaffney conveyed property located on South Clark Avenue in

Tampa, Florida (the “Clark Property”) to himself as a life estate, with a remainder to

Plaintiff Teresa M. Gaffney, his daughter. Doc. 1 ¶ 13.2 Phillip A. Baumann and

Phillip A. Baumann, P.A., subsequently filed a guardianship action and an action to

determine the incapacity of John Gaffney on behalf of Maryalice Tyler, another of

John Gaffney’s daughters. Id. ¶ 17. Upon his death in 2011, John Gaffney’s life-estate

interest in the Clark Property was extinguished, and Teresa Gaffney’s remainder

interest ripened into a fee-simple ownership of the property. Id. ¶ 21. In 2012, a case

regarding the Estate of John J. Gaffney was opened in state court. Id. ¶ 22. In February

2013, Plaintiff filed a claim against the Estate for services provided. Id. ¶ 23. Baumann,

P.A., also filed a claim for attorney’s fees earned in the guardianship action. Id. ¶ 24.

1 When ruling on a motion to dismiss under Rule 12(b)(6), the Court derives the statement of

facts from the factual allegations of the plaintiff’s complaint, which the Court must accept as

true in ruling on the motion. Erickson v. Pardus, 551 U.S. 89, 94 (2007).

2 The Complaint largely and indiscriminately regurgitates the facts from another suit Gaffney

filed in this Court, Gaffney et al v. Ficarrotta et al, 8:21-cv-00021-CEH-CPT, which the

undersigned dismissed with prejudice in December of 2022. As such, many of Plaintiff’s

factual allegations have little to do with any claims in this case. Furthermore, Gaffney,

repeatedly, refers to her co-Plaintiff in the earlier case, who is not a party to this matter, as a

plaintiff in this case. Doc. 1 ¶¶ 45, 54, 59.

The Court takes judicial notice of the prior lawsuit. At any stage of a proceeding, the Court

may judicially notice facts that are not subject to reasonable dispute because, in relevant part,

they “can be accurately and readily determined from sources whose accuracy cannot

reasonably be questioned.” Fed. R. Evid. 201(b)(2), (d). The Court may take judicial notice

of another court's (or in this case, its own) order only for the limited purpose of recognizing

the “judicial act” that the order represents or the subject matter of the litigation. United States

v. Jones, 29 F.3d 1549, 1553 (11th Cir. 1994).

In October 2013, a default judgment was entered against the Estate for

attorney’s fees owed to Baumann, P.A.. Id. ¶ 28. Baumann, P.A., Baumann, and

Michael R. Kangas sought to obtain ownership of the Clark Property or to force its

sale to pay the outstanding bill for legal services. Id. ¶ 29. Plaintiff alleges the Clark

Property never belonged to the Estate because John Gaffney conveyed it to himself as

a life estate, with the remainder to Plaintiff. Id. ¶ 30.

In April 2014, Baumann, as administrator ad litem of the Estate, filed an action

against Gaffney and Sarah K. Sussman, individually and as trustee of the Sussman

Family Living Trust, seeking to reverse the 2009 transfer of the Clark Property on the

grounds that it constituted a fraudulent transfer (the “Clark Property Action”). Id. ¶¶

33–34. In December 2015, Judge Paul L. Huey became the presiding judge in the Clark

Property Action. Id. ¶ 41. Shortly after, Gaffney called the Judge to ask about a

potential judicial appointee who had listed him as a reference. Id. ¶ 42. Gaffney alleges

that during the call, she was sexually harassed and threatened with retaliation if she

did not comply. Id. ¶¶ 43–45. In support of these allegations, Gaffney attaches an

unsworn affidavit describing the alleged conversation (Doc. 1-6).3

In 2016, Gaffney moved to disqualify Judge Huey. Doc. 1 ¶ 47. Judge Huey

denied that motion. Id. Later, however, he recused himself and the Clark Property

Action was transferred to another judge. Id. ¶ 49. Gaffney alleges that the various

3 In her Complaint and Responses, Gaffney relies upon numerous exhibits. However, she fails

to offer any explanation as to why the Court may consider these exhibits for purposes of a

Rule 12(b)(6) attack. As such, the Court has not considered these exhibits for this analysis.

judges involved in her case then reached an agreement to act together to “deny Plaintiff

her 14th Amendment Constitutional right to due process,” which resulted in a default

judgment and sanctions against her. Id. ¶¶ 50–53. She also alleges that she was

sanctioned in retaliation for reporting the sexual harassment. Id. ¶ 54. Gaffney states

that she continued to object to “unlawful and unconstitutional punishment for

reporting the sexual harassment.” Id. She alleges that her motions to disqualify and

motions to dismiss were then unlawfully denied. Id. ¶¶ 55–56.

Finally, a writ of possession was issued for the Clark Property in favor of

Kangas, Baumann, and Baumann, P.A. Id. ¶ 57. This writ allowed them to take

possession of the Clark Property and permitted Gaffney’s removal from the property.

Id. Sussman then filed for bankruptcy and the Clark Property became subject to the

accompanying automatic stay. Id. ¶ 58.

Gaffney and Sussman appealed to Florida’s Second District Court of Appeal.

Id. ¶ 59. Gaffney alleges that various judges had ex parte conversations regarding the

appeal. Id. ¶¶ 59–60. Judge Rex M. Barbas later granted a motion to disqualify himself,

explaining that he could not be fair and impartial to Gaffney, Sussman, or their

attorney. Id. ¶ 61.

Judge Caroline Tesche Arkin was then appointed to preside over the Clark

Property Action to allegedly “effectuate the continuing transgressions” of Plaintiff’s

rights. Id. ¶ 63. According to Gaffney, Judge Tesche Arkin violated her rights by

refusing to provide an opportunity to be heard or due process and upholding the

seizure of the Clark Property. Id. ¶ 64. Judge Huey allegedly admitted to the sexual

harassment and stated that the Clark Property Action should have been dismissed. Id.

¶ 65.

In January 2021, Gaffney filed a lawsuit in federal court against Phillip A.

Baumann, Michael R. Kangas, Judge Paul L. Huey, Judge Rex M. Barbas, Judge

Caroline Tesche Arkin, and Judge Ronald Ficarrotta. Id. ¶ 67. The undersigned

presided over this case, and ultimately dismissed the federal claims in that suit with

prejudice and remanded the remaining claims to state court. Gaffney v. Ficarrotta, No.

8:21-cv-21-CEH-CPT, 2022 WL 17668825, at *1 (M.D. Fla. Dec. 14, 2022).

Following a lengthy recitation of these background facts, Gaffney introduces

the Defendants in this matter for the first time. In January 2021, Defendant Marie T.

Rives, as an Assistant Attorney General for the State of Florida, entered an appearance

on behalf of the Judges in Plaintiff’s suit against them. Id. ¶ 68. According to Plaintiff,

Rives spoke to staff attorneys from the Florida Bar and “developed a conspiracy to

violate Plaintiff’s Constitutions [sic] rights.” Id. ¶ 69. Specifically, Gaffney states the

Defendants decided a Bar Complaint should be filed against her in retaliation for her

lawsuit and reports about various acts committed by the Judges who presided over the

Clark Property Matter. Id. Gaffney states that Rives was removed as the Judges’

attorney in the parallel case due to unspecified “misconduct” committed by her and

Miguel A. Olivella, Jr. Id. ¶ 70. Further, she claims Olivella filed a retaliatory motion

for sanctions against her seeking attorney’s fees. Id. ¶ 71. She claims that Rives was

removed as an attorney in the parallel case and Olivella withdrew his Motion for

Sanctions when the Florida Attorney General’s Office learned of these actions. Id. ¶

72.

Gaffney claims that on June 22, 2021, Defendant Lindsey Guinand, Chief

Branch Discipline Counsel for Lawyer Regulation of the Florida Bar, along with

Defendant Patricia Ann Toro Savitz, as Staff Counsel of the Florida Bar, filed a Bar

Complaint against her. Doc. 1-9. Plaintiff alleges that the bar complaint constitutes

unlawful retaliation against her and is “misconduct for which no immunity is

available.” Doc. 1 ¶ 74. Further, she claims that Guinand and Savitz prosecuted the

complaint in bad faith and “participated” with Rives to retaliate against her. Id.

Gaffney separately alleges that Guinand and Savitz discovered misconduct committed

by Kangas and Baumann and nevertheless failed to file Bar Complaints against them.

Id. ¶ 75.

Defendant Judge Peter R. Ramsberger is the referee of the Florida Bar

Complaint and allegedly participated in the conspiracy by barring a number of

Plaintiff’s witnesses, denying her notices of deposition, and granting the Florida Bar’s

Motion for Partial Summary Judgment prior to the close of discovery. Id. ¶ 76. Gaffney

claims many of Judge Ramsberger’s Orders violated due process, and that he

erroneously denied many of her motions. Id. ¶ 77.

II. PROCEDURAL DEVELOPMENT

Gaffney filed this suit in July 2022. Doc. 1. She brings two claims against the

various defendants: (1) civil rights conspiracy in violation of 42 U.S.C. § 1983 and (2)

civil rights conspiracy in violation of 42 U.S.C. § 1983 (equal protection). Doc. 1 ¶¶

79–96.

Gaffney sues Marie T. Rives, Assistant Attorney General for the State of

Florida, Lindsey M. Guinand, Chief Branch Discipline Counsel – Lawyer Regulation

of the Florida Bar, and Peter R. Ramsberger, Referee of the Florida Bar each in their

individual capacity. Id. ¶¶ 7, 9–10. She names Ashley Moody, Attorney General for

the State of Florida, and Joshua E. Doyle, Executive Director of the Florida Bar, each

in their official capacity. Id. ¶¶ 6, 12.

Gaffney also sues Patricia Ann Toro Savitz, Staff Counsel of the Florida Bar,

in her individual capacity. However, according to the Bar Defendants’ Motion to

Dismiss, Savitz was never served, and Gaffney’s response does not state otherwise.

Doc. 21 at 1; see Doc. 46. According to an unopposed motion to withdraw as attorney

by Defendants’ Attorney Karen Ann Brodeen, AG Moody has not been served either.

Doc. 65. As reflected on the docket, it does not appear that Ramsberger has been

served either. Finally, Miguel A. Olivella, Jr., assistant counsel with the Office of the

Florida AG, was sued individually, but the Court dismissed the claims against him

with prejudice pursuant to Plaintiff’s notice of voluntary dismissal. Docs. 57, 58.

Discovery has been stayed in this matter pending a ruling on the instant Motions to

Dismiss. Doc. 53.

III. ANALYSIS

The basis for the Court’s subject-matter jurisdiction is federal-question

jurisdiction under 28 U.S.C. § 1331. Doc. 1 ¶ 4. Gaffney brings two claims under 42

U.S.C. § 1983. As described below, all claims are due to be dismissed as to the

defendants who have been served. Doyle and Guinand are entitled to absolute

immunity. The claims against Rives are due to be dismissed because Gaffney fails to

state a plausible conspiracy claim.

A. Federal Rule of Civil Procedure 12(b)(1)

Defendants seek dismissal pursuant to both Federal Rule of Civil Procedure

12(b)(6) (discussed infra) and Rule 12(b)(1). A facial attack on subject matter

jurisdiction under Rule 12(b)(1)1 “requires [ ] the court merely to look and see if [the]

plaintiff has sufficiently alleged a basis of subject matter jurisdiction, and the

allegations in his complaint are taken as true for the purposes of the motion.” Lawrence

v. Dunbar, 919 F.2d 1525, 1529 (11th Cir. 1990) (citations omitted). In assessing a

motion to dismiss under Rule 12(b)(1), the Court affords Plaintiff the same safeguards

as those provided in the Rule 12(b)(6) context—it considers all allegations as true and

confines its analysis to the four corners of the complaint. Id.

B. Standing

Rives argues that Plaintiff fails to allege an injury in fact and therefore lacks

standing. Doc. 20 at 7. She argues that Gaffney has alleged only that Rives spoke to

unnamed Bar attorneys—which somehow led to the Bar Complaint being filed—and

that these allegations are insufficient to satisfy either prong of the standing analysis.

Id. at 8. Gaffney responds by citing basic caselaw on a plaintiff’s standing requirement

and concluding that she “has met her burden of standing.” Doc. 42 at ¶¶ 27–28.

Defendant replies that Gaffney fails to show how the filing of the Bar Complaint was

the cause of any injury-in-fact or make the necessary showing to recover retroactive

relief. Doc. 47 at 3–4.

To meet constitutional standing requirements, a plaintiff must demonstrate: (1)

an injury in fact; (2) a causal connection between the injury and conduct complained

of; and (3) that it is likely that the injury will be redressed by a favorable court ruling.

Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992). The injury must be “(1)

concrete and particularized and (2) actual or imminent, not conjectural or

hypothetical.” Id. at 560. A “particularized” injury “must affect the plaintiff in a

personal and individual way.” Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (2016) (quoting

Lujan, 504 U.S. at 560 n.1).

A plaintiff must also allege a causal connection that “link[s] the injury to the

complained-of conduct” of the defendant. This requirement is not satisfied if the injury

results instead from “the independent action of some third party not before the court.”

Ga. Latino Alliance for Human Rights v. Governor of Ga., 691 F.3d 1250, 1257 (11th Cir.

2012) (quoting Bennett v. Spear, 520 U.S. 154, 167 (1997) (quotation marks omitted)).

In conducting this inquiry “even harms that flow indirectly from the action in question

can be said to be ‘fairly traceable’ to that action for standing purposes.” Focus on the

Family v. Pinellas Suncoast Transit Authority, 344 F.3d 1263, 1273 (11th Cir. 2003)

(citation omitted). To establish injury-in-fact, Gaffney must demonstrate that she holds

“a legally cognizable interest that has been or is imminently at risk of being invaded.”

Id. at 1286. At the pleading stage, this requirement is not onerous and will be satisfied

by “general factual allegations of injury resulting from [Defendant's] conduct.” Lujan

504 U.S. at 561.

As to the claims against Rives, the Court agrees that the Complaint is short on

explanation of how Rives’ actions injured Gaffney. The main claim against Rives is

that she had discussions with Bar Counsel that led to a denial of Gaffney’s

constitutional rights under the First and Fourteenth Amendments. Doc. 1 ¶¶ 2, 69, 82,

94. Gaffney alleges that she suffered “severe physical and psychiatric injuries” based

on her rights being deprived, in addition to emotional distress and economic damages.

Id. ¶¶ 88, 96. Rives argues that Gaffney lacks standing to sue because the Bar

Complaint has not resulted in any disciplinary action against Gaffney, Gaffney had an

opportunity to challenge the allegations in the Bar Complaint, and she still had a Bar

license at the time this lawsuit was filed, meaning that the Bar Complaint had not

caused her any damages.4 Doc. 20 at 8–10.

As difficult to parse and convoluted as Plaintiff’s pleadings are, the Court will

not dismiss the complaint for lack of standing. Gaffney alleges a vast conspiracy

among the various Defendants to deprive her of her First Amendment right to free

speech (specifically, her right to speak out about alleged sexual harassment) and her

Fourteenth Amendment right to due process. Although the complaint is rambling and

scattershot, Plaintiff sufficiently alleges that Rives, in concert with the other

4 Although the Court has not considered the notice of supplemental authority at docket entry

99 for purposes of deciding the issues raised in the parties’ motion to dismiss, the Court notes

that, according to Defendant Rives, the Florida Bar has now permanently disbarred plaintiff

from the practice of law in Florida.

Defendants caused her an injury in fact. Nevertheless, Gaffney’s claims against Rives

are to be dismissed, as described, infra, because the complaint fails to state a plausible

conspiracy claim.

C. Eleventh Amendment Immunity

Defendant Joshua E. Doyle argues that the Florida Bar, an arm of the Florida

Supreme Court, is immune from Gaffney’s claims. Doc. 21 at 5. Doyle, sued in his

official capacity as Executive Director of the Florida Bar, claims that both counts

against him should be dismissed for lack of subject matter jurisdiction. Id. Gaffney’s

response fails to address Doyle’s arguments whatsoever (Doc. 46), and the Court

agrees that he is immune from these claims.

“An ‘official capacity’ suit generally is another way to plead an action against

the entity of which the officer is an agent.” Shean v. Garcia, No. 3:20-cv-750-MMH-

PDB, 2021 WL 2403936, at *5 (M.D. Fla. Apr. 15, 2021), report and recommendation

adopted, 2021 WL 1811772 (M.D. Fla. May 6, 2021). However, “[t]he Eleventh

Amendment protects a State from being sued in federal court without the State’s

consent.” Manders v. Lee, 338 F.3d 1304, 1308 (11th Cir. 2003) (en banc), cert denied,

540 U.S. 1107 (2004). “Because of the Eleventh Amendment, States may not be sued

in federal court unless they consent to it in unequivocal terms or unless Congress,

pursuant to a valid exercise of power, unequivocally expresses its intent to abrogate

the immunity.” Green v. Mansour, 474 U.S. 64, 68 (1985). Florida has not “waived its

Eleventh Amendment immunity in federal civil rights actions.” Fincher v. State of Fla.

Dep’t of Labor & Emp’t Sec. Unemployment Appeals Comm’n, 798 F.2d 1371, 1372 (11th

Cir. 1986); see Gamble v. Fla. Dep’t of Health & Rehabilitative Servs., 779 F.2d 1509, 1515

(11th Cir. 1986) (stating that Florida’s limited waiver of sovereign immunity in Florida

Statute § 768.28 does not constitute consent to be sued in federal court under § 1983).

Nor has Congress abrogated Eleventh Amendment immunity in § 1983 actions. Carr

v. City of Florence, 916 F.2d 1521, 1525 (11th Cir. 1990). And the Florida Bar, as an

arm of the Florida Supreme Court, is entitled to such immunity. Kaimowitz v. Fla. Bar,

996 F.2d 1151, 1155 (11th Cir. 1993) (“The Eleventh Amendment prohibits actions

against state courts and state bars.”); Henry v. Fla. Bar, 701 F. App’x 878, 881 (11th

Cir. 2017).

Gaffney sues Doyle in his official capacity as Executive Director of the Florida

Bar. Doc. 1 ¶ 6. Because the Bar is an arm of the Florida Supreme Court, Doyle is

entitled to Eleventh Amendment immunity. Because the Court lacks subject matter

jurisdiction over claims barred by the Eleventh Amendment, it has no power to render

a judgment on the merits, and must dismiss such claims without prejudice. Nichols v.

Alabama State Bar, 815 F.3d 726, 733 (11th Cir. 2016). Thus, Gaffney’s claims against

Doyle will be dismissed for lack of subject matter jurisdiction, and the Court will not

consider their merits.

Guinand and Rives are named in their individual capacities. Doc. 1 ¶¶ 7, 9, 10.

The Eleventh Amendment provides no bar to recovery of damages against state

officers acting in their individual capacities, so it does not bar Plaintiff’s claims against

these Defendants. Gamble, 779 F.2d at 1518.

D. Absolute Immunity

Guinand

Guinand, sued in her individual capacity, claims absolute immunity because

the Florida Bar and its staff counsel are immune from civil liability for all acts arising

out of their official duties related to attorney disciplinary proceedings. Doc. 21 at 6.

Gaffney disagrees, arguing that Guinand committed “retaliation per se” and the Bar

Complaint “cited the sexual harassment complaint against Judge Huey and the

Federal Civil Rights lawsuit.” Doc. 46 ¶ 19. Gaffney further argues that Guinand

“provided false information to the Court about Judge Huey,” knowingly violated

federal law by “push[ing]” for the Bar Complaint, and as such is not entitled to

absolute immunity. Id. ¶¶ 18–19, 32.

“The Florida Bar and its staff counsel are ‘agencies of the Supreme Court for

the purpose of administering its jurisdiction. The Florida Bar is thus an arm and part

of the judiciary . . . and the Florida Bar and its staff counsel are absolutely immune

from suits arising from their official actions.’” Kermanj v. Long, No. 11-62495-CIV,

2013 WL 12086205, at *1 (S.D. Fla. Jan. 31, 2013) (quoting Mueller v. Fla. Bar, 390 So.

2d 449 (Fla. 4th DCA 1980)); see also Tindall v. Fla. Bar, No. 97-387-CIV-T-17C, 1997

WL 689636, at *4 (M.D. Fla. Oct. 14, 1997), aff'd, 163 F.3d 1358 (11th Cir. 1998).

Therefore, the law extends absolute immunity to the Florida Bar and its

disciplinary staff in relation to attorney disciplinary proceedings. The complaint seeks

monetary damages arising from Guinand’s role in the Florida Bar’s investigation and

disciplinary proceedings against Plaintiff. Doc. 1 ¶¶ 73–75. Plaintiff does not allege

that Guinand acted outside her official capacity. Therefore, she is entitled to absolute

immunity against Plaintiff’s claims. Kivisto v. Soifer, No. 0:10-CV-61758-UU, 2011 WL

13186683, at *5–6 (S.D. Fla. Mar. 14, 2011), aff'd, 448 F. App'x 923 (11th Cir. 2011)).

Because Plaintiff’s claims against Guinand fall squarely within the bounds of absolute

immunity, amendment of this claim would be futile, and the Court will dismiss it with

prejudice.

Rives

Rives argues that she is entitled to absolute immunity because the only factual

allegations against her are that her conversations with Florida Bar attorneys led to the

Bar Complaint against Gaffney. Doc. 20 at 16–18. Gaffney does not respond beyond

stating that Rives is “not entitled to absolute immunity or any other immunity.” Doc.

42 ¶¶ 1, 47, 63.

The Florida Supreme Court has granted absolute immunity to individuals who

file Bar Complaints against attorneys, at least in the defamation context. Tobkin v.

Jarboe, 710 So. 2d 975, 977 (Fla. 1998). This absolute immunity has likewise been

applied in federal court. See Alan v. Wells Fargo Bank., N.A., 604 Fed. Appx. 863 (11th

Cir. 2015). However, every such case that the Court has reviewed differs in at least one

respect from this one: absolute immunity was granted to the defendant(s) who actually

filed the Bar Complaint.5 Id.; See e.g., Alvarez v. Ridge, No. 03-20049-CIV, 2004 WL

7331011, at *3 (S.D. Fla. Mar. 31, 2004).

5 In addition, each of the cases reviewed by the Court granted the defendant(s) immunity as

to a defamation claim. Although a Magistrate Judge’s Report and Recommendation in a

Here, Rives allegedly participated in a conspiracy that resulted in the filing of

the Bar Complaint. Although these allegations relate to a Bar Complaint, the Court is

not persuaded that a Defendant accused of conspiring with others to deprive a Plaintiff

of constitutional rights, eventually resulting in the filing of a Bar Complaint, is entitled

to absolute immunity. The Complaint alleges (and Plaintiff’s attached copy of the Bar

Complaint does not contradict) that Guinand and Savitz filed the Bar Complaint

against Plaintiff. Doc. 1 ¶ 73. As such, they might be entitled to absolute immunity

under this theory, not Rives.

E. Qualified Immunity

Only Gaffney’s claims against Rives remain. Rives argues that she is entitled to

qualified immunity on both counts. Doc. 20 at 18.

The Supreme Court has “‘repeatedly . . . stressed the importance of resolving

immunity questions at the earliest possible stage in litigation.’” Pearson v. Callahan, 555

U.S. 223, 232 (2009) (quoting Hunter v. Bryant, 502 U.S. 224, 227 (1991) (per curiam)).

To receive qualified immunity, “an official must first establish that he was acting

within the scope of his discretionary authority when the allegedly wrongful acts

occurred.” McCullough v. Antolini, 559 F.3d 1201, 1205 (11th Cir. 2009) (internal

quotation marks omitted). “A governmental official acts within his discretionary

conspiracy case suggested that the result should be no different for a claim under 42 U.S.C. §

1983, the district court did not adopt that finding, dismissing the complaint for other reasons.

See Howard v. Harris, No. 4:22CV97-AW-MAF, 2023 WL 2994660, at *5 (N.D. Fla. Feb. 16,

2023), report and recommendation adopted in part, 2023 WL 2664248 (Mar. 27, 2023).

authority if his actions were (1) undertaken pursuant to the performance of his duties;

and (2) within the scope of his authority.” Mikko v. City of Atlanta, 857 F.3d 1136, 1144

(11th Cir. 2017). For this analysis, “‘a court must ask whether the act complained of,

if done for a proper purpose, would be within, or reasonably related to, the outer

perimeter of an official’s discretionary duties.’” Id. (quoting Harbert Int’l, Inc. v. James,

157 F.3d 1271, 1282 (11th Cir. 1998)).

If a defendant establishes that he was acting within discretionary authority, “the

burden shifts to the plaintiff to show that qualified immunity is not appropriate,”

Brooks v. Warden, 800 F.3d 1295, 1306 (11th Cir. 2015) (internal quotation marks

omitted). A plaintiff can do so by showing that “(1) the facts alleged make out a

violation of a constitutional right and (2) the constitutional right was clearly

established at the time of the alleged misconduct,” Gates v. Khokhar, 884 F.3d 1290,

1297 (11th Cir. 2018). Qualified immunity protects “all but the plainly incompetent or

those who knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 341 (1986).

Rives argues that the allegations specific to her—that she had conversations

with unnamed Bar counsel, which then led to a Bar Complaint being filed against

Gaffney—took place within the scope of her “discretionary authority as a lawyer.”

Doc. 20 at 21. Arguing that the Florida Bar Rules of Professional Conduct charge

lawyers with reporting the professional misconduct of other lawyers, Rives claims she

acted within the scope of her discretionary authority as a member of the Florida Bar

and that Gaffney must show that qualified immunity is not appropriate. Id.

Gaffney’s Response again provides little substantive argument, besides stating

that Rives is not entitled to qualified immunity. Doc. 42 ¶¶ 1, 45, 61. Notwithstanding

her lack of a response, the Court cannot find that qualified immunity is appropriate at

this stage. Rives’ pleadings discuss the scope of her discretionary authority as a lawyer

and a member of the Florida Bar. She cites no case law (and the Court found none)

supporting the theory that attorneys or members of the Florida Bar can be considered

public officials in the qualified immunity context. As such, Rives fails to make the

threshold showing that she acted in her discretionary authority as a public official.

F. Failure to State a Claim

To survive a motion to dismiss under Rule 12(b)(6), a pleading must include a

“short and plain statement of the claim showing that the pleader is entitled to relief.”

Ashcroft v. Iqbal, 556 U.S. 662, 677–78 (2009) (internal quotation marks omitted)

(quoting Fed. R. Civ. P. 8(a)(2)). Labels, conclusions, and formulaic recitations of the

elements of a cause of action are not sufficient. Id. at 678 (citing Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 555 (2007)). Further, mere naked assertions are not sufficient.

Id. A complaint must contain sufficient factual matter, which, if accepted as true,

would “state a claim to relief that is plausible on its face.” Id. (quoting Twombly, 550

U.S. at 570). “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. (citation omitted).

Finally, to state a claim for conspiracy under 42 U.S.C. § 1983 (as alleged in

both counts), a plaintiff must allege that the defendants reached an understanding or

agreement to deny her one of her constitutional rights, and the conspiracy resulted in

an actual denial of one of those rights. Weiland v. Palm Beach Cnty. Sheriff’s Off., 792

F.3d 1313, 1327 (11th Cir. 2015) (citing Hadley v. Gutierrez, 526 F.3d 1324, 1332 (11th

Cir. 2008)). With these principles in mind, the Court examines the claims against

Rives, the only non-immune Defendant.

1. “Civil Rights Conspiracy in Violation of 42 U.S.C. § 1983”

(Count I)

Gaffney sues Rives, Guinand, Olivella, Savitz and Judge Ramsberger for “civil

rights conspiracy in violation of 42 U.S.C. § 1983” in Count I. She alleges,

inarticulately, that Defendants “filed a Bar Complaint against Plaintiffs, and through

a conspiracy with one another conspired with one another under color of law, and

knowingly deprived Plaintiff of her First Amendment Right to free speech.” Doc. 1 ¶

80. She further alleges each of the Defendants: (1) committed overt acts; (2) “was an

otherwise willful participant” in joint activity as part of the conspiracy; and (3) “used”

the Florida Bar Complaint to impose unlawful discipline against Gaffney. Id. ¶¶ 80–

85. In framing this claim, Gaffney alleges that Defendants conspired to deprive her of

her First Amendment rights and alludes to unspecified violations of her Fourteenth

Amendment rights. Id. ¶¶ 1, 2, 88.

Rives argues that Gaffney fails to state a claim because her allegations, even

taken as true and in a favorable light, fail to link Defendants to any concerted effort to

deprive Gaffney of her rights, state what the conspiratorial understanding among the

Defendants was, or provide sufficient detail about the understanding reached. Doc. 20

at 9–10. Rives also argues that the allegations against her fail to link her to a concerted

effort to violate Gaffney’s rights. Id. at 9. She notes that the only conduct she is alleged

to have taken is speaking with unnamed Bar staff lawyers and argues that this is

insufficient to make out a plausible conspiracy claim. Id. at 9–10. She also argues that

the complaint fails to describe the conspiratorial understanding that Defendants

reached with specificity. In particular, there are no allegations Rives spoke with any

co-Defendant, or that any two Defendants actually spoke with each other. Id. As such,

Rives argues it cannot be reasonably inferred that Defendants entered into a

conspiracy. Id. Overall, she argues that the allegations are vague, general, and

conclusory, and that to the extent any alleged facts are attributed to a Defendant

entitled to immunity for their role in the conspiracy, that action cannot form a basis

for a conspiracy. Id. at 11.

Gaffney does not respond to the failure-to-state-a-claim arguments, except to

unpersuasively argue that her complaint should not be dismissed under Twombly and

Iqbal. Doc. 42 at 8–10. Gaffney responds that Rives is aware her conduct contributed

to the “false and fraudulent” bar complaint, restates her harassment claims against a

nonparty state court judge, and summarily concludes that she has pled sufficient facts

to survive a motion to dismiss. Id. at 9.

The elements of a § 1983 claim alleging denial of procedural due process are:

“(1) a deprivation of a constitutionally-protected liberty or property interest; (2) state

action; and (3) constitutionally-inadequate process.” Arrington v. Helms, 438 F.3d 1336,

1337 (11th Cir. 2006). “To state a § 1983 First Amendment retaliation claim, a plaintiff

generally must show that: (1) she engaged in constitutionally protected speech, such

as her right to petition the government for redress; (2) the defendant's retaliatory

conduct adversely affected that protected speech and right to petition; and (3) a causal

connection exists between the defendant's retaliatory conduct and the adverse effect

on the plaintiff's speech and right to petition.” DeMartini v. Town of Gulf Stream, 942

F.3d 1277, 1289 (11th Cir. 2019).

“[T]he linchpin of conspiracy is agreement, which presupposes

communication.” Bailey v. Bd. of Cnty. Comm’rs of Alachua Cnty., 956 F.2d 1112, 1122

(11th Cir. 1992). “Conclusory allegations of an agreement, without any factual basis

to make the allegations plausible, are insufficient to state a conspiracy claim.” N.R. by

Ragan v. Sch. Bd. of Okaloosa Cnty., 418 F. Supp. 3d 957, 999 (N.D. Fla. 2019) (citing

Williams v. Fulton Cnty. Sch. Dist., 181 F. Supp. 3d 1089, 1148 (N.D. Ga. 2016)).

Gaffney has not plausibly alleged that Rives reached an understanding or

agreement with the other defendants. Instead, Gaffney offers only conclusory

allegations, such as that Rives “had conversations with staff attorneys from the Florida

Bar” and “further developed a conspiracy” to violate “Plaintiff’s Constitutions [sic]

rights” in retaliation for Gaffney’s various complaints about judges. Doc. 1 ¶ 69.

Additionally, the Complaint lacks any factual allegations about which actions Rives

took in conspiring to deprive Plaintiff of her rights to freedom of speech and due

process. Thus, Gaffney’s allegations about the alleged conspiracy are conclusory and

lack sufficient facts to “state a claim for relief that is plausible on its face.” Iqbal, 556

U.S. at 678.

For example, in Count One, Gaffney claims that Defendants “developed a

conspiracy to violate Plaintiff’s Constitutions [sic] rights” and “conspired by concerted

action to accomplish an unlawful purpose by an unlawful means.” Doc. 1 ¶¶ 69, 81.

These allegations are little more than a recitation of the elements of a conspiracy claim.

Gaffney’s allegations about the requisite agreement for the conspiracy between the

Defendants are also conclusory and a basis for dismissal. See Weiland, 792 F.3d at

1327; Ragan, 418 F. Supp. 3d at 999. She alleges that “it is overwhelmingly clear that

all of the Defendants reached an unlawful agreement or conspiracy between them to

act willfully in joint activity” to deprive her of rights. Doc. 1 ¶ 86. Again, this is nothing

more than a legal conclusion that parrots the elements of conspiracy. Overall, the

allegations about the extent of the agreement lack plausibility as required under Fed.

R. Civ. P. 12(b)(6).6 As such, Count I is due to be dismissed.

2. “Civil Rights Conspiracy in Violation of 42 U.S.C. § 1983 –

Equal Protection” (Count II)

Count II will also be dismissed for failure to state a claim against Rives. After

recounting her sexual harassment allegations once again, Gaffney alleges that

“Defendants, all while acting individually, jointly, and in conspiracy, as well as under

color of law,” denied her equal protection and retaliated against her for “complaining

about [the alleged] sexual Harassment and to deny Plaintiff equal protection of the

6 None of the exhibits attached to the Complaint provide sufficient factual support for the

alleged conspiracy in this claim or any other claim, either. For example, Exhibit 6 is Plaintiff’s

unsworn “affidavit” discussing alleged sexual harassment. She cites no basis for the Court to

consider it, and it is unrelated to the claims at issue.

law.” Id. at ¶¶ 93–94. Thus, she alleges that Defendants conspired to violate her right

to equal protection.

Rives argues that Plaintiff’s retaliation allegations do not make for a plausible

Equal Protection Clause claim. Doc. 20 at 15. She argues that Gaffney fails to make

the necessary allegation that she has been treated differently from other persons

similarly situated. Id. Gaffney’s Response cites several employment-related cases at

length and argues that “intentional discrimination against an employee in the

workplace because of the employee’s sex is plainly a violation of that employee’s right

to equal protection.” Doc. 42 ¶¶ 41–43. She does not, however, elaborate on how her

cited caselaw applies to the instant case.

“The Equal Protection Clause of the Fourteenth Amendment commands that

no State shall deny to any person within its jurisdiction the equal protection of the

laws, which is essentially a direction that all persons similarly situated should be

treated alike.” City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985) (internal

quotation marks omitted). “In order to state an equal protection claim, the plaintiff

must therefore show that the state treated him differently than other similarly situated

persons based on his or her membership in an identifiable group or class of persons.”

Ragan, 418 F. Supp. at 985. Stating an equal protection claim under § 1983 generally

requires a plaintiff to state that “(1) he is similarly situated to [others] who received

more favorable treatment; and (2) the state engaged in invidious discrimination based

on race, religion, national origin, or some other constitutionally protected basis.”

Womack v. Carroll Cnty., 840 F. App’x 404, 407 (11th Cir. 2020) (alteration in original)

(quoting Sweet v. Sec’y, Dep’t of Corrs., 467 F.3d 1311, 1318–19 (11th Cir. 2006)).

Here, the Complaint fails to plausibly allege any discrimination by Defendants

(or discriminatory acts by Rives specifically) on account of race, gender, or any other

protected characteristic. Nor does Gaffney plausibly allege that others received more

favorable treatment, let alone that Rives treated others more favorably because of any

characteristic. Gaffney also fails to plausibly allege any conspiracy to deny her equal

protection of the law. Furthermore, for the same reasons that Count I was deficient,

Gaffney’s allegations about the alleged conspiracy in Count II are also conclusory, as

they largely parrot the elements of her claim and lack sufficient facts to render the

claim plausible.

In sum, Plaintiff’s allegations are not “sufficient to demonstrate a deprivation

of h[er] constitutional rights,” because “[t]o maintain a claim under § 1983, the

plaintiff must demonstrate that the defendants deprived h[er] of a cognizable

constitutionally guaranteed civil right.” Kivisto, 2011 WL 13186683 at *4. Plaintiff’s

Complaint fails to allege specific and plausible facts that do so. Additionally, Plaintiff

fails to adequately allege that Rives participated in a conspiracy, and her “vague and

conclusory allegations suggesting a § 1983 conspiracy are insufficient to withstand a

motion to dismiss.” Id. For example, Plaintiff fails to make particularized allegations

about what the agreements were and how they led to her rights being deprived. Id.

Again, all that has been alleged against Rives is that she had conversations with

Florida Bar staff and then participated in a sweeping and ill-defined conspiracy to

deprive Plaintiff of her rights. The general allegations against the other defendants say

nothing about Rives’ actions with specificity either. As a result, the Complaint

contains no plausible claim upon which relief can be granted and is due to be

dismissed.

As Plaintiff’s claims against the defendants who have been served and who

allegedly conspired against her have all been dismissed, the Court questions Plaintiff’s

ability to state plausible claims for relief against Rives. Nevertheless, Plaintiff will be

allowed one opportunity to amend her claims as to Rives, if she chooses. See Rule 15,

Fed. R. Civ. P. When deciding whether to amend her complaint, Plaintiff should be

mindful of Rule 11, Fed. R. Civ. P.

IV. CONCLUSION

Accordingly, it is ORDERED:

1. Defendants Joshua E. Doyle and Lindsey M. Guinand’s Motion to Dismiss

(Doc. 21) is GRANTED as follows: Count I (“Civil Rights Conspiracy in

Violation of 42 U.S.C. § 1983”) and Count II (“Civil Rights Conspiracy in

Violation of 42 U.S.C. § 1983 – Equal Protection”) are DISMISSED

WITHOUT PREJUDICE as to Defendant Joshua E. Doyle for lack of

subject-matter jurisdiction. Count I (“Civil Rights Conspiracy in Violation

of 42 U.S.C. § 1983”) and Count II (“Civil Rights Conspiracy in Violation

of 42 U.S.C. § 1983 – Equal Protection”) are DISMISSED WITH

PREJUDICE as to Lindsey M. Guinand.

2. Defendants Marie T. Rives’ Motion to Dismiss (Doc. 20) is GRANTED as

follows: Count I (“Civil Rights Conspiracy in Violation of 42 U.S.C. §

1983”) and Count II (“Civil Rights Conspiracy in Violation of 42 U.S.C. §

1983 – Equal Protection”) as to Marie T. Rives are DISMISSED

WITHOUT PREJUDICE. Plaintiff is granted leave to file an amended

complaint as to her claims against Defendant Marie T. Rives within

FOURTEEN (14) DAYS of this Order. Failure to file an amended

complaint within the time provided will result in the dismissal of this action.

3. Within FOURTEEN (14) DAYS of this Order, Plaintiff is directed to show

cause why her claims as to Defendants Attorney General Ashley Moody,

Patricia Ann Toro Savitz, and Peter Ramsberger7 should not be dismissed

because Plaintiff has failed to serve them within 90 days of filing her

complaint. See Fed. R. Civ. P. 4(m).

7 Although Defendant Judge Ramsberger has not apparently been served or appeared in this

action, the Court notes that he would appear to have a meritorious argument for judicial

immunity, as discussed in Rives’ Motion to Dismiss. Doc. 20 at 13. Judges are entitled to

absolute judicial immunity from liability for acts taken in their judicial capacity unless they

acted in the “clear absence of all jurisdiction.” Bolin v. Story, 225 F.3d 1234, 1239 (11th Cir.

2000) (citations omitted). “This immunity applies even when the judge's acts are in error,

malicious, or were in excess of his or her jurisdiction.” Id. A judge might act in the clear

absence of all jurisdiction (and therefore lose immunity) when they act “purely in a private

and non-judicial capacity.” Henzel v. Gerstein, 608 F.2d 654, 658 (5th Cir. 1979). “[B]ar

admissions, bar disciplinary actions, and disbarments are essentially judicial in nature.”

Matter of Calvo, 88 F.3d 962, 965 (11th Cir. 1996).

DONE and ORDERED in Tampa, Florida on September 15, 2023.

C Ap Mies: □ aauJarda Mo Ta pl el 0.

Charlene Edwards Honeywell

United States District Judge

Copies furnished to:

Counsel of Record

Unrepresented Parties