# Puglia v. Nienhuis

> District Court, M.D. Florida · December 11, 2023

URL: https://www.frixlaw.com/law-library/cases/10114627

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** December 11, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10114627

## How later opinions describe it (automated extraction)

- 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
- 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
- finding that an affidavit was not a sham because the court did “not find the original affidavit inherently inconsistent with the deposition”

## Opinion text

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
1
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
3
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).
4
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).
5
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).

6
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.
7
(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
8
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).
9
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
10
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
11
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.
12
(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
16
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
17
(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
18
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
21
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.
22
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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10114627. Public record. Not legal advice.