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 for Summary Judgment (Doc. # 80), filed on

January 20, 2023. Plaintiff Matthew Puglia responded on

October 20, 2023. (Doc. # 100). Defendants replied on November

3, 2023. (Doc. # 107). The Motion is granted.

I. Background

The parties in their respective statements of material

facts include numerous facts and details about Puglia’s time

with the Hernando County Sheriff’s Office (“HCSO”). The Court

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has reviewed those statements of material fact in their

entirety; however, the Court will outline here only those

facts necessary to resolve the instant Motion.

A. Defendants

Defendant Sheriff Alvin Nienhuis serves as the duly

elected Sheriff of Hernando County, Florida and at all times

served as Sheriff during Puglia’s employment. (Doc. # 57 at

¶¶ 5-6).

Defendant Kenneth Hayden is currently the Chief Deputy

for the HCSO with the rank of Colonel. During Puglia’s

employment and prior to being promoted to his current rank,

Hayden served as the Commander of the agency’s Law Enforcement

Operations Bureau (“LEO Bureau”) with the rank of Major. (Doc.

# 81 at 6:2-7:1, 7:22-25). The HCSO’s LEO Bureau includes the

agency’s Patrol Division. (Id. at 8:1-9).

Defendant Philip Lakin is currently employed as the

Commander of the LEO Bureau for the HCSO. (Doc. # 57 at ¶ 9;

Doc. # 82 at 6:17-21, 9:4-6, 66:20-24). Prior to being

promoted to his current rank of Major and during all relevant

times, Lakin was a Captain overseeing the HCSO’s Patrol

Division and reporting directly to then-Major Hayden. (Doc.

# 82 at 7:22-8:4).

2

Non-party Rocky Howard is currently in charge of the

Office of Professional Standards for the HCSO, serving with

the rank of Lieutenant. Prior to transferring to Professional

Standards and during all relevant times, Howard was the Patrol

Division’s District 2 Commander, reporting to then-Captain

Lakin. (Doc. # 83 at 8:1-10).

Defendant William Hillman is currently employed by the

HCSO, holding the rank of Sergeant since 2014. (Doc. # 84 at

7:2-9). Beginning in February 2021, Sergeant Hillman worked

in Patrol District 2 under the supervision of Howard. (Id. at

10:5-8).

Defendant John Ellis is currently employed by the HCSO

as a Sergeant in the Major Case Section of the Criminal

Investigation Division (“CID”), supervising detectives who

work cases involving crimes against persons. (Doc. # 85 at

4:13-23, 5:5-8). Prior to transferring to the CID, Ellis was

a District 2 Patrol Division supervisor, reporting to Howard.

(Id. at 20:21 - 21:7).

Defendant Scott Reak is currently employed by the HCSO

as a Lieutenant in charge of the agency’s Vice and Narcotics

Unit. (Doc. # 86 at 10:14-17). After being promoted to

Lieutenant in April 2021, Reak initially served as the Patrol

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Division’s Night Watch Commander before being reassigned to

Special Operations for seven or eight months and eventually

to the Vice and Narcotics Unit. (Id. at 10:11-13, 12:11-22,

13:1-4). As Night Watch Commander, Reak was a lieutenant in

Puglia’s chain of command. (Id. at 16:13–17:25).

Defendant Joseph McClellan1 was employed with the HCSO

as a deputy sheriff from June 2019 until his resignation in

May 2023. (Doc. # 87 at 11:6-9, 21:24-22:1). During his

employment, McClellan was assigned to Patrol Division

District 2 and, during certain periods, was directly

supervised by Hillman and Ellis. (Id. at 16:13-23; Doc. # 84

at 15:16–16:2).

B. Puglia’s Employment

Puglia is a former deputy sheriff who was hired on July

6, 2020, and dismissed on December 8, 2021. (Doc. # 47 at ¶¶

14, 59). The parties disagree over whether Puglia was a

probationary employee at the time of his termination.

Puglia began his employment with the HCSO on an initial

12-month probationary period. (Doc. # 88 at 50:17-51:17)

During that time, he was responsible for completing initial

1 Although Puglia named this Defendant as Joseph McClennan in

the amended complaint, the proper spelling is McClellan.

(Doc. # 87 at 6:13-20).

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on-the-job training through the HCSO’s Field Training Officer

(“FTO”) Program. (Id.).

Probationary employees do not have career service status

under the Hernando County Career Service Act or HCSO’s general

orders. See Ch. 2000-414, § 5(a), Laws of Fla. (also called

“HB 1441”); (Doc. # 82 at 51:3-24); see also (Doc. # 82-4 at

§ IV) (HCSO General Order 1200 defining “career-service

status” as “[a]ny employee that has served for one (1)

calendar year and has not been placed on extended probation

during that period.”). “An employee that is placed on extended

probation during the initial year of employment attains

career service status upon the successful completion of the

extended probation.” (Doc. # 82-4 at § IV).

Regarding probation, the HCSO’s Rule III – Appointment

provides in relevant part:

Any new or promotional appointment shall be a

probationary appointment subject to the completion

of a satisfactory probationary period. The

probationary period shall be utilized to evaluate

the employee’s performance on the job and for

dismissing those who do not meet the required

standards of performance. The duration of such

probationary period shall be one (1) year from date

of appointment with no interruptions in service for

new appointments, and six months for promotional

appointments. The Sheriff reserves the right to

extend the probationary period.

(Doc. # 83-5 at 1) (emphasis added).

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The HCSO’s field training program typically lasts 12-16

weeks and commences a few weeks after a deputy’s initial hire.

(Doc. # 85 at 18:5-7; Doc. # 85-2; Doc. # 86 at 38:18-19).

During training, Puglia’s least acceptable performance was in

report writing. (Doc. # 81-5 at pp. 519, 528, 539, 544, 549,

600, 605). Puglia was provided with remedial Phase 4 training

in light of his struggles. (Id. at p. 611; Doc. # 88 at 51:9-

25). Puglia subsequently completed his field training program

and began working shifts as a deputy.

C. Continued Issues and Probation Extensions

While working shifts in Patrol Division District 2,

Puglia was directly supervised by Sergeants Hillman and

Ellis. (Doc. # 84 at 25:6-8; Doc. # 85 at 9:25-10:17). During

this time, Puglia’s District 2 supervisors also included

Lieutenants Reak (Night Watch Commander) and Howard (District

Commander), then-Captain Lakin (Patrol Division Commander),

and then-Major Hayden (Law Enforcement Operations Bureau

Commander). Individually and collectively, these supervisors

observed and discussed the difficulties Puglia was still

having with an abnormally high rejection rate for his written

reports. (Doc. # 86 at 57:7-58:7).

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Steps were taken to help Puglia improve his report

writing. Puglia’s improvement plan had many components,

including the extension of his initial 12-month probationary

period. (Doc. # 86-2 at p. 8). Puglia was given a “Dragon

Speak” device to help him draft his reports. (Id. at p. 12;

Doc. # 88 at 121:23-122:13; Doc. # 88-22 at p. 12). He was

also given access to online Fred Pryor training courses (Doc.

# 85 at 24:22-25:2), links to report templates for various

types of crimes (Doc. # 86-2 at pp. 15-16), and articles on

report writing (Doc. # 86-5), among other things.

On June 8, 2021, Lt. Reak issued Puglia an Employee

Interview Report (“EIR”) that addressed Puglia’s poor report

writing and missing a traffic court appearance. (Doc. # 86-2

at p. 2). EIRs are considered educational in nature, rather

than punitive, and are used at the HCSO to document verbal

discussions between the supervisor and his or her employee.

(Doc. # 89-2 at § V(A)).

On June 14, 2021, then-Major Hayden recommended that

Puglia’s initial probationary period be extended for three

additional months. (Doc. # 81-4). Colonel Turney accepted

Hayden’s recommendation and extended Puglia’s probationary

period for the first time from July 6 to October 5, 2021.

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(Doc. # 81-5 at p. 301). Puglia was notified of this first

extension of his initial probationary period on June 16, 2021.

(Doc. # 86-2 at p. 4).

On or about July 24, 2021, Puglia completed his Self-

Evaluation Questionnaire regarding his performance as a

deputy sheriff for the period of July 6, 2020, through July

5, 2021. (Doc. # 88 at 84:8-13). Therein, Puglia acknowledged

“written communications” as one of three areas he most sought

to improve, explaining that he would like to improve his

“report writing skills” as well as his “grammar” and

“spelling.” (Doc. # 88-13 at p. 2).

Sergeant Ellis reviewed Puglia’s responses to his Self-

Evaluation Questionnaire with Puglia during his annual

performance evaluation. (Doc. # 88-14 at p. 6). For Puglia’s

initial rating period of July 6, 2020, to July 5, 2021, Ellis

assessed Puglia’s Professional Growth and Development,

Written Communications, and Work Quality as “Unacceptable” —

the lowest possible rating. (Id. at pp. 1-3).

After being directed to provide a written response to

specific questions by then-Captain Lakin, Puglia authored a

two-page memorandum. (Doc. # 88 at 106:17-22, 108:15-25; Doc.

# 88-15). In relevant part and with respect to the critical

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assessments of Puglia’s performance in his annual performance

evaluation, Puglia wrote:

Shortly after I returned to work, Sergeant Ellis

gave me my review. To say the least, it was not

something that I enjoyed reading, but it was

correct for what I had going on at that time in my

life. It was accurate, and I take responsibility.

(Doc. # 88 at 104:13-105:17; Doc. # 88-15 at p. 1). At his

deposition, Puglia confirmed that all statements made in his

September 19, 2021, memorandum were true and accurate. (Doc.

# 88 at 105:5-17).

By mid-September 2021, Puglia’s performance as a

probationary deputy sheriff had not substantially improved.

(Doc. # 81-5 at p. 291). Specifically, following completion

of the field training program and from December 6, 2020,

through September 21, 2021, 196 of Puglia’s 378 authored

reports, supplements, and other ACISS entries had been

rejected — a rejection rate of 52%. (Id.). That said, in the

month of September 2021 alone, Puglia’s rejection rate for

reports had decreased to 35%, which was “still far above the

rate of his shift.” (Id. at p. 290). Recognizing his ongoing

deficiencies, Puglia authored a memorandum dated September

19, 2021, wherein he disclosed personal challenges resulting

in absences from work that he surmised may have negatively

impacted his attention to detail. (Id. at pp. 299-300).

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On September 22, 2021, due to Puglia’s continued

performance issues and absences from scheduled patrol shift

work, then-Captain Lakin prepared a memorandum to Colonel

Turney recommending an extension of Puglia’s probationary

period for another thirty days (from October 5, 2021, through

November 5, 2021). (Id. at pp. 287-290; Doc. # 81-7 at pp. 1-

4; Doc. # 82 at 36:14-33, 38:12-19). Colonel Turney approved

Lakin’s recommendation on September 24, 2021. (Doc. # 81-5 at

pp. 287-290). Puglia received email notification of the

extension of his probationary period through November 5,

2021, the same day. (Doc. # 88 at 109:20-25, 110:1-17; Doc.

# 88-17).

D. Investigation, Final Extension, and Termination

Ellis and Reak testified that, during this time, they

noticed differences in Puglia’s written reports which raised

concerns over whether someone else was writing Puglia’s

reports for him. (Doc. # 85 at 36:5–37:19; Doc. # 86 at 84:22–

85:11).

A subsequent internal check of Puglia’s work address e-

mails showed that Puglia had been forwarding his draft written

reports and confidential criminal computer-aided dispatch

records to his home e-mail address and to the addresses of

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third parties outside of the HCSO. (Doc. # 81-5 at pp. 613-

865; Doc. # 88 at 110:22-111:21; Doc. # 88-18). The third

parties included Francis Ritchie (a former HCSO deputy) and

Joseph Puglia, Puglia’s father who was a certified law

enforcement officer but who did not work for the HCSO. (Doc.

# 81-5 at pp. 17-26).

Out of a concern that Puglia’s sharing of confidential

criminal data outside of the agency might be a violation of

law or HCSO General Orders, the HCSO referred Puglia’s

potential violations of criminal statutes to the State

Attorney’s Office and placed Puglia on administrative leave

with pay effective October 29, 2021. (Doc. # 88 at 113:8-16).

The outside investigators determined that no crime had

occurred but referred the investigation to Internal Affairs

to investigate HCSO policy violations. (Doc. # 84-9).

Puglia testified that, during his paid administrative

leave, he was precluded from working any assigned shifts as

a deputy sheriff. (Doc. # 88 at 115:4-25). But his notice of

administrative leave stated that he “was subject to immediate

recall” with one hour’s notice. (Doc. # 81-19).

The HCSO initiated an internal investigation on November

4, 2021, into Puglia’s conduct for possible violation of

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General Order 2025.00, Internet and Electronic Communication

(Doc. # 81-5 at pp. 269-279), and Policy Statement 1023.00,

Code of Conduct (Id. at pp. 280-285; Doc. # 89 at ¶ 6).

While on paid administrative leave and considering the

Internal Affairs investigation, Sheriff Nienhuis extended

Puglia’s initial probationary period for a third time from

November 5, 2021, to November 30, 2021. (Doc. # 49 at ¶¶ 4-

9, Ex. 1; Doc. # 88 at 113:17-114:21; Doc. # 88-19). Sheriff

Nienhuis’s written notice to Puglia extending his

probationary status through November 30, 2021, was served on

Puglia by Lt. Howard on November 2, 2021. (Doc. # 49 at ¶ 9).

The notice identifies the grounds for the further extension

of Puglia’s probationary status as being both the Internal

Affairs investigation and the continued “evaluation of [his]

performance as a deputy sheriff.” (Id. at ¶ 4, Ex. 1).

Subsequently, then-Major Hayden drafted an Interoffice

Memorandum to then-Captain Lakin dated November 29, 2021,

that states:

After reviewing the documentation in regards to

Deputy Matthew Puglia’s progress thus far, I concur

that a probation extension needs to be provided.

Deputy Puglia’s probation period will be extended

through December 18, 2021.

Should you feel he’s up to standards prior to that

date, we can adjust the period.

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(Doc. # 49 at Ex. 4) (emphasis added). This was the fourth

extension of Puglia’s probationary period. According to his

affidavit, Hayden “authorized [this] fourth extension of

Puglia’s initial probation on November 29, 2021, due to the

fact that as of that date, the Internal Affairs investigation

had not yet been completed and without the additional

extension, Puglia’s initial probation potentially was

scheduled to expire on November 30, 2021, and Colonel Turney

was not actively working as he approached his date of

retirement.” (Doc. # 89 at ¶ 7).

Then-Major Hayden, who was a bureau commander, had the

authority to extend Puglia’s probationary period for up to

three months, without obtaining the Sheriff’s approval.

(Id.). He had such authority because the HCSO’s General Order

3065.00 provides that a “bureau commander may place an

employee on disciplinary probation for a period of 3 months

to 1 year. Disciplinary probation recommendations that exceed

3 months must be submitted by the appropriate Bureau Commander

(in writing) to the Sheriff for approval prior to being

imposed.” (Doc. # 105-4 at 6). Although the General Order

makes clear the authority of a bureau commander to extend

probation, Hayden testified during his deposition that he was

13

“not aware of a policy that expressly delegates the authority

to extend a probation.” (Doc. # 81 at 144:19-145:2).

Puglia seems to doubt the authenticity of Hayden’s

memorandum extending his probation, pointing out that Lakin

(to whom the memorandum was addressed) testified that he was

not involved in the Internal Affairs investigation or

Puglia’s termination process. Lakin was not at HCSO at the

time of Puglia’s termination on December 8 because he was

away at the Command Officers Development Course, which

required him to be “away for two weeks a month for five

months.” (Doc. # 82 at 16:13-24; 26:23-27:5; 55:17-22). But

no evidence shows that Hayden did not draft this memorandum

on November 29, 2021, as dated.

Indeed, Lt. Howard averred in his affidavit that “[o]n

November 30, 2021, [he] received an email from Sergeant Dustin

Adkins with regard to another probation extension to be served

upon Deputy M Puglia.” (Doc. # 49 at ¶ 10 & Ex. 6). The email

from Adkins stated, “Hey LT, attached is the memo regarding

Puglia’s probation extension.” (Id. at Ex. 6). The November

29 memo from Hayden to Lakin extending Puglia’s probation was

“attached to this email.” (Id. at ¶ 10 & Ex. 4).

14

Lt. Howard avers that he served the memo extending

Puglia’s probation for the fourth time on Puglia on November

30, 2021. (Id. at ¶¶ 11-15). After serving the memo on Puglia,

Howard “then walked back into [his] office and immediately

sent an email to Sergeant Dustin Adkins and Lieutenant John

McMurdo that read ‘Gentlemen, Deputy Puglia has been served.’

This was to inform them that Puglia was given the memo

extending his probation.” (Id. at ¶ 16 & Ex. 6).

For his Part, Puglia swears in his affidavit that he has

“no recollection of being served with any extension of

probation on November 30, 2021.” (Doc. # 54 at ¶ 7). He also

points out that there is no document in the record that is

signed by him and acknowledges receipt of the final probation

extension document.

On December 7, 2021, Puglia’s Internal Affairs

investigation was completed with sustained findings of the

asserted violations by the Internal Affairs Investigator and

concurred with by Lieutenant John McMurdo. See (Doc. # 81-5

at pp. 1-13) (including an Interoffice Memorandum from

Internal Affairs Investigator Stephens dated December 7,

2021, stating “Internal Affairs Investigation, case number

2021-IA-10 has been prepared and presented for your review”

15

and including “findings” that Puglia had violated General

Order 2025.00, Internet and Electronic Communications, and

Policy Statement 1023.00, Code of Conduct, Unsatisfactory

Performance).

Then-Major Hayden recommended to Sheriff Nienhuis that

Puglia be terminated from his employment for Puglia’s

substandard performance as a probationary deputy in a

memorandum dated December 8, 2021. (Doc. # 81 at 132:19-

133:1-7; Doc. # 81-23). The memorandum stated in part that

Puglia “is unable to perform the routine tasks assigned to

him on a work shift basis.” (Doc. # 81-23). Hayden testified

that, in making this recommendation, he relied on the

documentation created by then-Captain Lakin, Lt. Howard, and

Sgts. Hillman and Ellis. (Doc. # 81 at 134:7-13).

Puglia’s initial probation was extended four times (Doc.

# 81 at 24:3-6), although Hayden’s memorandum to Sheriff

Nienhuis erroneously cites to only two extensions because he

had lost track of the number of extensions when he authored

the termination recommendation. (Id. at 135:4-12).

Through issuing a letter to Puglia terminating his

employment on December 8, 2021, Sheriff Nienhuis notified

Puglia that he was being terminated for his failure to achieve

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and maintain the standards set to remain a deputy sheriff.

The letter further informed Puglia that as a probationary

employee, he was not being afforded the rights of the Career

Service appeal process as outlined in General Order 3065.00

– Disciplinary Procedure. (Doc. # 50 at ¶ 3, Ex. 1).

On December 8, 2021, then-Major Hayden authored an

Interoffice Memorandum closing Internal Investigation 2021-

IA-03 and noting: “Action Taken: Probationary employee

terminated prior to discipline.” (Doc. # 81 at 123:2-124:25;

Doc. # 81-5 at p. 1). That interoffice memorandum read in

full:

Internal Affairs Investigation 2021-IA-10 was

initiated November 4, 2021, in regards to alleged

misconduct by Deputy Matthew Puglia. The

allegations named in the investigation are as

follows:

Violation of General Order 2025.00, Internet and

Electronic Mail Usage - SUSTAINED

Violation of Policy Statement 1023.00 Code of

Conduct - Unsatisfactory Performance SUSTAINED

On December 8, 2021 Deputy Puglia was terminated

from the Hernando County Sheriff’s Office for

failure to meet the standards of a Hernando County

Deputy Sheriff.

Action Taken: Probationary employee terminated

prior to discipline

Case Status: Closed

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(Doc. # 81-5 at p. 1). Despite this document from December 8,

2021, there is also an Interoffice Memorandum by Investigator

Stephens from December 22, 2021, stating that the

investigation was closed on December 21, 2021. (Doc. # 105-8

at 4, 6).

On December 8, 2021, Puglia’s then-counsel, Michael Day,

sent Sheriff Nienhuis a letter stating in relevant part: “My

client is currently on ‘probation’ and Florida is a ‘right to

work’ state,” though Day “[felt] that [Puglia’s] original

probationary period was recently improperly extended several

times.” (Doc. # 89 at ¶ 8; Doc. # 89-3 at pp. 1-2). In his

declaration, Day averred that “[t]he purpose of the quotation

marks [around the word probation] was to convey sarcasm and

in no way was it my intent to communicate or admit that []

Puglia was a probationary employee as of December 8, 2021.”

(Doc. # 102).

Puglia’s probationary status was separately acknowledged

by his union, the Fraternal Order of Police. (Doc. # 88-26).

The minutes from the Fraternal Order of Police’s December 16,

2021, Emergency Executive Board Meeting state that Puglia

“was still on new-hire probation at the time he was

terminated.” (Id. at 1). Although the Fraternal Order of

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Police officially agreed with Sheriff Nienhuis that Puglia

was a probationary employee, not all members of the Fraternal

Order of Police agreed. Puglia’s Fraternal Order of Police

Representative, Steve Klapka, averred that he “did not

believe that [] Puglia was a probationary employee at the

time of his termination.” (Doc. # 103 at ¶ 13). Klapka left

a voicemail for Hayden “request[ing] that [Puglia] be given

a pre-termination hearing, and a post-termination hearing.”

(Id.).

E. Procedural History

Thereafter, Mr. Puglia initiated this Section 1983

action. (Doc. # 1). The Court dismissed Mr. Puglia’s First

Amendment retaliation and due process liberty interest

claims. (Doc. # 45; Doc. # 56). Thus, only Mr. Puglia’s due

process property interest claim remains.

Now, Defendants move for summary judgment on that claim.

(Doc. # 80). Mr. Puglia has responded (Doc. # 100), and

Defendants have replied. (Doc. # 107). At the Court’s request,

the parties filed supplemental briefs concerning adequate

state remedies. (Doc. ## 111, 112). The Motion is ripe for

review.

II. Legal Standard

19

Summary judgment is appropriate “if the movant shows

that there is no genuine dispute as to any material fact and

the movant is entitled to judgment as a matter of law.” Fed.

R. Civ. P. 56(a). A factual dispute alone is not enough to

defeat a properly pled motion for summary judgment; only the

existence of a genuine issue of material fact will preclude

a grant of summary judgment. Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 247-48 (1986).

An issue is genuine if the evidence is such that a

reasonable jury could return a verdict for the non-moving

party. Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742

(11th Cir. 1996) (citing Hairston v. Gainesville Sun Publ’g

Co., 9 F.3d 913, 918 (11th Cir. 1993)). A fact is material if

it may affect the outcome of the suit under the governing

law. Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir.

1997). The moving party bears the initial burden of showing

the Court, by reference to materials on file, that there are

no genuine issues of material fact that should be decided at

trial. Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256, 1260

(11th Cir. 2004) (citing Celotex Corp. v. Catrett, 477 U.S.

317, 323 (1986)).

20

“When a moving party has discharged its burden, the non-

moving party must then ‘go beyond the pleadings,’ and by its

own affidavits, or by ‘depositions, answers to

interrogatories, and admissions on file,’ designate specific

facts showing that there is a genuine issue for trial.”

Jeffery v. Sarasota White Sox, Inc., 64 F.3d 590, 593-94 (11th

Cir. 1995) (quoting Celotex Corp., 477 U.S. at 324).

If there is a conflict between the parties’ allegations

or evidence, the non-moving party’s evidence is presumed to

be true and all reasonable inferences must be drawn in the

non-moving party’s favor. Shotz v. City of Plantation, 344

F.3d 1161, 1164 (11th Cir. 2003). If a reasonable fact finder

evaluating the evidence could draw more than one inference

from the facts, and if that inference introduces a genuine

issue of material fact, the Court should not grant summary

judgment. Samples ex rel. Samples v. City of Atlanta, 846

F.2d 1328, 1330 (11th Cir. 1988). But, if the non-movant’s

response consists of nothing “more than a repetition of his

conclusional allegations,” summary judgment is not only

proper, but required. Morris v. Ross, 663 F.2d 1032, 1034

(11th Cir. 1981).

III. Analysis

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Defendants argue that summary judgment is proper because

there is no genuine dispute of material fact as to two

elements of Puglia’s procedural due process claim.

Additionally, they argue that all Defendants, to the extent

they are sued in their individual capacities and were acting

within their discretionary authority, are entitled to

qualified immunity.

“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). Importantly, 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.

Because the Court determines that there was no constitutional

violation as a matter of law, Defendants are entitled to

qualified immunity and Puglia’s claim fails on the merits.

The Court addresses the two flaws with Puglia’s

procedural due process claim separately below.

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A. Was Puglia on Probation When Terminated?

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, 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

23

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); see also Fla. Stat. §

30.079 (“The provisions of this act shall not be construed to

provide deputy sheriffs with a property interest or

expectancy of continued appointment as a deputy sheriff, nor

shall these provisions serve as a limitation of the sheriff’s

authority . . . to exercise control and discretion over the

organization and operations of the sheriff’s office or

department.”). 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).

The Court agrees with Defendants that there is no genuine

dispute of material fact as to whether Puglia had a property

interest in his employment under the HCSO’s civil service

system. Puglia was on probation on December 8, 2022, when his

employment was terminated, and thus had no property interest.

As a preliminary matter, then-Major Hayden’s affidavit

is not a sham affidavit. While Hayden could not remember at

24

the time of his deposition what policy delegated the authority

to extend a deputy’s probation to him (Doc. # 81 at 144:19-

145:2), such lapse of memory at that time does not preclude

Hayden’s subsequent recollection and inclusion of those facts

in his affidavit. See Poitevint v. United Recovery Sys., LP,

899 F. Supp. 2d 1230, 1235 (N.D. Fla. 2012) (explaining that

“the ‘sham affidavit’ rule provides that an affidavit can be

disregarded if its conflict with other evidence in the case

is so pronounced that the affidavit rises to the level of a

sham” and “[g]enerally, discrepancies between a witness’s

affidavit and deposition do not defeat the admissibility of

the affidavit”). “To allow every failure of memory or

variation in a witness’s testimony to be disregarded as a

sham would require far too much from lay witnesses.” Tippens

v. Celotex Corp., 805 F.2d 949, 953 (11th Cir. 1986). There

is no inherent inconsistency between Hayden’s lack of

awareness of the General Order during his deposition and his

subsequent awareness and explanation of that General Order in

his affidavit. See Id. at 951 (finding that an affidavit was

not a sham because the court did “not find the original

affidavit inherently inconsistent with the deposition”).

25

Thus, then-Major Hayden’s affidavit will be considered

by the Court. That affidavit explains that Hayden “authorized

[this] fourth extension of Puglia’s initial probation on

November 29, 2021, due to the fact that as of that date, the

Internal Affairs investigation had not yet been completed and

without the additional extension, Puglia’s initial probation

potentially was scheduled to expire on November 30, 2021, and

Colonel Turney was not actively working as he approached his

date of retirement.” (Doc. # 89 at ¶ 7). He identified the

source of his authority to extend Puglia’s probation as

General Order 3065.00. (Id.). Indeed, General Order 3065.00

provides that a “bureau commander may place an employee on

disciplinary probation for a period of 3 months to 1 year.

Disciplinary probation recommendations that exceed 3 months

must be submitted by the appropriate Bureau Commander (in

writing) to the Sheriff for approval prior to being imposed.”

(Doc. # 105-4 at 6). Thus, a bureau commander may extend a

probationary period by up to 3 months without obtaining the

Sheriff’s approval.

In his response, Puglia argues that the fourth probation

extension under General Order 3065.00 is invalid because that

General Order involves “disciplinary probation” and

26

“[n]owhere in the record is there any evidence or suggestion

that Puglia’s probation was extended for disciplinary

purposes.” (Doc. # 100 at 15). The Court is unpersuaded. While

Puglia’s termination was not based on disciplinary

violations, it is inaccurate to suggest that there was no

disciplinary reason for the fourth extension of Puglia’s

probation. When Hayden as bureau commander extended Puglia’s

probation for the final time, Puglia was out on administrative

leave pending completion of the Internal Affairs

investigation into his misconduct. (Doc. # 88 at 113:8-16).

The ongoing investigation was the reason identified by Hayden

for the fourth probation extension. (Doc. # 89 at ¶ 7). The

Internal Affairs investigation ultimately concluded that

Puglia did violate General Order 2025.00, Internet and

Electronic Communications, and Policy Statement 1023.00, Code

of Conduct, Unsatisfactory Performance. (Doc. # 81-5 at pp.

1-13).

Even setting aside that Puglia was being investigated

for disciplinary violations when his probation was extended

for the fourth time, Puglia was also having issues with his

performance at the time of the fourth extension; indeed, the

second extension of his probation was related to the continued

27

report writing problems and the third extension was because

of “the ongoing [Internal Affairs] investigation and the

evaluation of [Puglia’s] performance.” (Doc. # 49 at Ex. 1;

Doc. # 81-5 at p. 287-91). General Order 3065.00 explains

that “[d]iscipline is a function of command that must be

exercised in order to develop a staff obedient to direction

and control” but “discipline can also be thought of as a form

of training and a constructive tool of leadership used to

eliminate operational weaknesses.” (Doc. # 105-4 at 3).

Finally, the fact that Puglia does not recall receiving

a copy of the memorandum extending his probation for the

fourth and final time does not create a genuine issue of

material fact as to whether he was on probation at the time.

See Dickey v. Baptist Mem’l Hosp.-N. Miss., 146 F.3d 262, 266

n.1 (5th Cir. 1998) (noting that a witness’s failure to

recall that a telephone conversation occurred did not create

a genuine dispute with the other speaker’s testimony that the

conversation actually occurred); Posey v. Skyline Corp., 702

F.2d 102, 105 (7th Cir. 1983) (finding summary judgment proper

where defendant’s evidence indicated that ADEA notice was

posted and plaintiff’s affidavit stated only that he did not

recall seeing one). “[W]here the only evidence negating the

28

existence of an event is a witness’s failure to remember that

event, other courts have declined to find a genuine issue of

fact for summary judgment purposes.” Linao v. GCR Tire Ctrs.,

No. 2:09-CV-134-RWS, 2010 WL 4683508, at *5 (N.D. Ga. Nov.

12, 2010); see also Torjagbo v. United States, 285 F. App’x

615, 619 (11th Cir. 2008) (noting that although Torjagbo

testified that he did not remember signing the covenant not

to sue, a reasonable jury could not find in his favor on the

authenticity of the covenant); Chandler v. James, 985 F. Supp.

1094, 1100 (M.D. Ala. 1997) (“[A] witness who states that he

cannot remember whether or not an event alleged to have

happened by the moving party actually took place does not

help the nonmoving party to meet its burden.”). Puglia’s lack

of memory does not rebut the significant evidence that the

memorandum extending his probation was drafted on November 29

and served on Puglia by Lt. Howard on November 30, 2021.

Howard’s affidavit swearing that he served the memorandum on

Puglia is corroborated by the email sent to him by Adkins

with the memorandum attached and Howard’s email back to Adkins

the same day stating that Howard had just served Puglia. (Doc.

# 49 at ¶¶ 10-16, Ex. 4, & Ex. 6).

29

In short, Puglia has not established a genuine dispute

as to whether he was a civil service — rather than

probationary — employee at the time of his termination.2 While

Puglia disagrees that his probation was extended or that any

extension was appropriate, there is insufficient evidence to

rebut that Puglia’s probationary status was extended by the

HCSO to December 18, 2021 — a date after his December 8

termination. Thus, as a matter of law, Puglia did not have a

property interest in continued employment and his due process

claim fails.

Summary judgment in Defendants’ favor is warranted on

this basis alone. But the Court will also address Defendants’

alternative argument regarding adequate state remedies.

B. Were There Adequate State Remedies?

2 The Court need not engage in much discussion of Fla. Stat.

§ 30.073(2)(c). See Fla. Stat. § 30.073(2)(c) (“If a deputy

sheriff is unable to perform the duties and responsibilities

of the position to which he or she is appointed or promoted

due to a nonservice-connected disability or other justifiable

cause, the period of probation may be extended by the amount

of time the deputy sheriff is unable to perform his or her

duties.”). Puglia’s brief reference to this statute is

unpersuasive. (Doc. # 100 at 15-16). This statute does not

preclude a sheriff from extending a deputy’s probationary

period based on that deputy’s poor performance or other

issues. Thus, this statute does not support that the HCSO’s

multiple extensions of Puglia’s probation were invalid such

that Puglia’s probationary status should be ignored.

30

Although summary judgment is warranted based on the

probationary status issue, the Court will also alternatively

address whether there were adequate state remedies available

to Puglia. In performing this alternative analysis, the Court

will assume that Puglia was a career-service employee at the

time of his termination, as Puglia argues.

“[E]ven if [a] plaintiff establishes a property interest

in [his] employment, to state a cause of action for a

violation of procedural due process [he] must also establish

that there was no state remedy for [his] termination. This is

not an affirmative defense, but an element of the cause of

action.” Laney v. Hosp. Bd. of Dirs. of Lee Cnty., No. 2:09-

cv-678-JES-SPC, 2010 WL 5161367, at *7 (M.D. Fla. Dec. 14,

2010). “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.” McKinney v. Pate, 20

F.3d 1550, 1557 (11th Cir. 1994). “[T]his directive is a

recognition that procedural due process violations do not

even exist unless no adequate state remedies are available.”

Cotton v. Jackson, 216 F.3d 1328, 1331 n.2 (11th Cir. 2000).

31

Defendants argue that, “[r]egardless of [Puglia’s]

probationary status, [Puglia’s] procedural due process claim

fails because such a claim does not exist where, as here,

Florida law provides an adequate state remedy.” (Doc. # 80 at

22). According to Defendants, “to the extent [Puglia] argues

he was denied due process in the form of a career service

hearing based on the position he was not a probationary

employee, [Puglia] could have attempted to avail himself of

this process and, if unsuccessful, moved for mandamus or

certiorari relief in circuit court.” (Id.).

The Court agrees with Defendants. Here, assuming that

Puglia was a civil service employee as he maintains, Puglia

had an established legal right to have a termination appeal

hearing before a Career Services Appeal Board. The Hernando

County Sheriff’s Office General Order 1200 provides that “[a]

Career Services Appeal Board shall be created for the purpose

of hearing appeals of career-service employees arising from

disciplinary dismissals or suspensions that exceed fifteen

(15) days.” (Doc. # 82-4 at 2). “The Board shall hear appeals

related to the disciplinary dismissal or suspension in excess

of fifteen (15) days of a career-service status employee.”

(Id. at 3) (emphasis added).

32

Indeed, Puglia concedes that “an adequate remedy was

provided by H.B. No. 1441 with its provision providing for an

appeal to the Career Service Appeals Board.” (Doc. # 100 at

19). But Puglia did not submit a written request to appeal

his dismissal to the Career Services Appeal Board because he

had been told that he — as a probationary employee — was not

entitled to such an appeal. But this is not convincing. Again,

according to Puglia, he and his then-counsel believed at the

time of his termination that he was a career-service employee

entitled to a termination appeal hearing before a Career

Services Appeal Board. See (Doc. # 102) (then-counsel’s

affidavit that he was being sarcastic when he referred to

Puglia as a probationary employee); (Doc. # 103 at ¶ 13)

(Fraternal Order of Police Representative Klapka’s affidavit

that he believed Puglia was a career-service employee at the

time of his termination). Thus, despite the HCSO’s statement

that Puglia was a probationary employee, Puglia could have

filed for a termination appeal hearing before the Career

Services Appeal Board.

Even assuming that any request from Puglia for such an

appeal would have been denied by the HCSO based on his alleged

probationary status, Puglia had another adequate state remedy

33

available to him. Puglia could then have sought mandamus

relief in state court. See Rowan v. City of Avon Park, No.

2:12-CV-14077-KMM, 2012 WL 2872300, at *5 (S.D. Fla. July 12,

2012) (“Not unlike the plaintiff in Cotton, Plaintiff also

had available the judicial remedy of mandamus. . . . Here,

Plaintiff possessed a clear legal right, by virtue of the

City Charter, to ‘a final appeal before the City Council

[consistent with due process of law] for purposes of

contesting any removal.’ The Charter affords Defendant no

discretion with respect to whether Plaintiff is entitled to

such a hearing. Consequently, an adequate state remedy was

available and plaintiff cannot rely on his failure to avail

himself of that remedy to claim he was deprived of procedural

due process.” (citation omitted)). “In order to be entitled

to a writ of mandamus, the petitioner must have a clear legal

right to the requested relief, the respondent must have an

indisputable legal duty to perform the requested action, and

the petitioner must have no other adequate remedy available.”

Fla. Agency for Health Care Admin. v. Zuckerman Spaeder, LLP,

221 So. 3d 1260, 1263 (Fla. 1st DCA 2017) (quoting Putnam

Cnty. Env’t Council v. Johns River Water Mgmt. Dist., 168

So.3d 296, 298 (Fla. 1st DCA 2015)). “The duty of the

34

respondent in a mandamus action must be ministerial in nature,

and not discretionary.” Id. “A duty is ministerial when ‘there

is no room for the exercise of discretion, and the performance

being required is directed by law.’” Id. (quoting Town of

Manalapan v. Rechler, 674 So.2d 789, 790 (Fla. 4th DCA 1996)).

“Mandamus is available only to enforce an established legal

right, not to establish that right.” Id.

As discussed previously, taking as true Puglia’s

contention that he was a career-service employee, Puglia had

an established legal right to have a termination appeal

hearing before a Career Services Appeal Board. (Doc. # 82-4

at 2-3). It was not discretionary for the Board to consider

an appeal: if an appeal was timely filed by a career-service

employee, the Board must hear the appeal.

Thus, a post-termination hearing or, if that was denied,

the filing of a writ of mandamus in state court were adequate

state remedies available to Puglia.3 Because an adequate state

3 If Puglia had requested and received a hearing, the parties

appear to agree that such a post-termination hearing would

have satisfied due process. See (Doc. # 100 at 19) (Puglia’s

response, stating that “an adequate remedy was provided by

H.B. No. 1441 with its provision providing for an appeal to

the Career Service Appeals Board”). If such a hearing was

conducted and Puglia was dissatisfied with the way the hearing

was held, Puglia could then have sought a writ of certiorari.

See De Groot v. Sheffield, 95 So. 2d 912, 915–16 (Fla. 1957)

35

remedy was available, Puglia cannot establish that a

procedural due process violation occurred. See McKinney, 20

F.3d at 1557 (“[O]nly when the state refuses to provide a

process sufficient to remedy the procedural deprivation does

a constitutional violation actionable under section 1983

arise.”). Summary judgment must be granted.

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 for Summary Judgment (Doc. #

80) is GRANTED.

(2) The Clerk is directed to enter Judgment in favor of

Defendants and against Plaintiff Matthew Puglia and,

thereafter, CLOSE the case.

(3) The Court retains jurisdiction to address the pending

Motion for Sanctions (Doc. # 106).

(“[C]ertiorari is a discretionary writ bringing up for review

by an appellate court the record of an inferior tribunal or

agency in a judicial or quasi-judicial proceeding. The writ

is available to obtain review in such situations when no other

method of appeal is available.”).

36

DONE and ORDERED in Chambers in Tampa, Florida, this

lith day of December, 2023.

VIR IA M. HERNANDEZ*COVINGTON

UNITED STATES DISTRICT JUDGE

37