Green v. Finkelstein

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No. 20-cv-62160-BLOOM/Valle

RUBY GREEN,

Plaintiff,

v.

HOWARD L. FINKELSTEIN, et al.,

Defendants.

________________________________/

OMNIBUS ORDER

THIS CAUSE is before the Court upon two Motions filed by the named Defendants in this

case.1 See ECF Nos. [17] & [19] (collectively, the “Motions”). Howard Finkelstein, in his official

capacity as the Broward County Public Defender (“Public Defender”), and the Office of the Public

Defender for Broward County (“Public Defender’s Office”) (collectively, “Official Defendants”)

filed a Motion to Dismiss Complaint and Motion to Strike Plaintiff’s Claim for Punitive Damages.

ECF No. [17]. Additionally, Howard Finkelstein, in his individual capacity (“Defendant

Finkelstein”), filed a Motion to Dismiss Complaint, ECF No. [19].2 The Court has carefully

reviewed the Motions, all opposing and supporting submissions, the record in this case, the

applicable law, and is otherwise fully advised. For the reasons set forth below, the Motions are

denied.

1 Plaintiff Ruby Green (“Green”) brings this action against Howard Finkelstein, both individually and in

his capacity as Public Defender for Broward County, and against the Office of the Public Defender for

Broward County. See ECF No. [1].

2 The Public Defender’s Office, the Public Defender, and Defendant Finkelstein are collectively referred to

as “Defendants.”

I. BACKGROUND

On October 23, 2020, Green initiated this action against Defendants alleging claims of First

Amendment retaliation under 42 U.S.C. § 1983. See ECF No. [1]. According to the Complaint,

Green was previously employed as an assistant public defender for Broward County. Id. ¶¶ 2, 5.

During her employment with the Public Defender’s Office, Green campaigned for public office to

replace the retiring Public Defender, Defendant Finkelstein. Id. ¶¶ 2, 6. Green contends that during

her employment and while campaigning for office, she was actively engaged in speaking about

“social justice issues.” Id. ¶ 7. Specifically, Green publicly advanced her position on the “equitable

treatment of African American participants in the criminal justice system” by engaging the

community at large and participating in podcasts. Id. ¶¶ 7, 10, 16. The morning after her

unsuccessful election, Green received an e-mail and text message notifying Green of her

termination. Id. ¶ 8. That same morning, Defendant Finkelstein participated in an interview with

the South Florida Sun Sentinel, during which Defendant Finkelstein purportedly “admitted” to the

reporter that he personally made the decision to terminate Green, and that his decision was based

on the statements Green made during her campaign for public office. Id. Accordingly, the

Complaint asserts two counts for relief: (1) First Amendment Retaliation against Defendant

Finkelstein; and (2) First Amendment Retaliation against the Official Defendants.

On December 14, 2020, and December 16, 2020, Defendants filed their respective Motions.

See ECF Nos. [17] & [19]. Defendants argue that Green fails to state a plausible claim for First

Amendment retaliation because the Complaint is devoid of any facts or substantive allegations

concerning her protected speech.3 Additionally, the Official Defendants move to strike Green’s

3 Because Defendants raise the same, if not identical, legal arguments, the Court considers them together.

claim for punitive damages. Green timely filed a Response to each Motion, see ECF Nos. [21] &

[22], and Defendants subsequently filed their respective Replies, see ECF Nos. [25] & [26].

The Motions, accordingly, are ripe for consideration.

II. LEGAL STANDARD

A pleading in a civil action must contain “a short and plain statement of the claim showing

that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Although a complaint “does not need

detailed factual allegations,” it must provide “more than labels and conclusions, and a formulaic

recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S.

544, 555 (2007); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (explaining that Rule

8(a)(2)’s pleading standard “demands more than an unadorned, the-defendant-unlawfully-harmed-

me accusation”). Nor can a complaint rest on “‘naked assertion[s]’ devoid of ‘further factual

enhancement.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557).

When reviewing a motion under Rule 12(b)(6), a court, as a general rule, must accept the

plaintiff’s allegations as true and evaluate all plausible inferences derived from those facts in favor

of the plaintiff. See Miccosukee Tribe of Indians of Fla. v. S. Everglades Restoration Alliance, 304

F.3d 1076, 1084 (11th Cir. 2002); AXA Equitable Life Ins. Co. v. Infinity Fin. Grp., LLC, 608 F.

Supp. 2d 1349, 1353 (S.D. Fla. 2009). However, this tenet does not apply to legal conclusions, and

courts “are not bound to accept as true a legal conclusion couched as a factual allegation.”

Twombly, 550 U.S. at 555; see also Iqbal, 556 U.S. at 678; Thaeter v. Palm Beach Cnty. Sheriff’s

Office, 449 F.3d 1342, 1352 (11th Cir. 2006). Moreover, “courts may infer from the factual

allegations in the complaint ‘obvious alternative explanations,’ which suggest lawful conduct

rather than the unlawful conduct the plaintiff would ask the court to infer.” Am. Dental Ass’n v.

Cigna Corp., 605 F.3d 1283, 1290 (11th Cir. 2010) (quoting Iqbal, 556 U.S. at 682).

A court, in considering a Rule 12(b)(6) motion, “may consider only the complaint itself

and any documents referred to in the complaint which are central to the claims.” Wilchombe v.

TeeVee Toons, Inc., 555 F.3d 949, 959 (11th Cir. 2009) (citing Brooks v. Blue Cross & Blue Shield

of Fla., Inc., 116 F.3d 1364, 1369 (11th Cir. 1997)); see also Maxcess, Inc. v. Lucent Techs., Inc.,

433 F.3d 1337, 1340 n.3 (11th Cir. 2005) (“[A] document outside the four corners of the complaint

may still be considered if it is central to the plaintiff’s claims and is undisputed in terms of

authenticity.” (citing Horsley v. Feldt, 304 F.3d 1125, 1135 (11th Cir. 2002))).

III. DISCUSSION

A. First Amendment Retaliation

The crux of Green’s claims is that she was terminated by Defendants in retaliation for her

public statements on social justice issues, and that this retaliatory termination violated her First

Amendment rights. In the Motions, Defendants first seek dismissal of the Complaint on the

grounds that, absent Green specifically pleading what she said, when she said it, and to whom she

was speaking, she cannot establish that the speech for which she was terminated was

constitutionally protected. ECF No. [17] at 6; ECF No. [19] at 8. Stated differently, Defendants

suggest that the Complaint must “set forth [Green’s] actual words.” ECF No. [25] at 3-4; ECF No.

[26] at 2-3. However, the Court’s analysis under § 1983 is guided by Rule 8(a)(2), and not a

heightened pleading standard. See Randall v. Scott, 610 F.3d 701, 710 (11th Cir. 2010) (“After

Iqbal it is clear that there is no ‘heightened pleading standard’ as it relates to cases governed by

Rule 8(a)(2), including civil rights complaints. All that remains is the Rule 9 heightened pleading

standard.”). It is through the lens of Rule 8(a)(2) that the Court considers the Motions and the

parties’ arguments.

“A government employer may not demote or discharge a public employee in retaliation for

speech protected by the First Amendment.” Alves v. Bd. of Regents of the Univ. Sys. of Ga., 804

F.3d 1149, 1159 (11th Cir. 2015) (citing Bryson v. City of Waycross, 888 F.2d 1562, 1565 (11th

Cir. 1989)). While it is true that a citizen who enters public service “must accept certain limitations

on his or her freedom[,] . . . [t]he First Amendment limits the ability of a public employer to

leverage the employment relationship to restrict, incidentally or intentionally, the liberties

employees enjoy in their capacities as private citizens.” Garcetti v. Ceballos, 547 U.S. 410, 418-

19 (2006) (citing Waters v. Churchill, 511 U.S. 661, 671 (1994); Perry v. Sindermann, 408 U.S.

593, 597 (1972)); see also Lane v. Franks, 573 U.S. 228, 236 (2014) (“public employees do not

renounce their citizenship when they accept employment, and [the Supreme Court] has cautioned

time and again that public employers may not condition employment on the relinquishment of

constitutional rights” (citations omitted)). Thus, in the First Amendment context, courts must

“arrive at a balance between the interests of the [employee], as a citizen, in commenting upon

matters of public concern and the interest of the State, as an employer, in promoting the efficiency

of the public services it performs through its employees.” Pickering v. Bd. of Educ. of Twp. High

Sch. Dist., 391 U.S. 563, 568 (1968); see also Garcetti, 547 U.S. at 418 (the Pickering balancing

test “reflects the importance of the relationship between the speaker’s expressions and

employment. A government entity has broader discretion to restrict speech when it acts in its role

as employer, but the restrictions it imposes must be directed at speech that has some potential to

affect the entity’s operations.”).

The Court of Appeals for the Eleventh Circuit has set forth a four-part inquiry to determine

whether an employer’s actions constitute retaliation for protected speech in violation of the First

Amendment: (1) whether the employee’s speech involves a matter of public concern; (2) whether

the employee’s interest in commenting upon matters of public concern outweighs the employer’s

legitimate interest in promoting the efficiency of public service it performs through its employees;

(3) whether the employee’s speech played a substantial or motivating factor in the employer’s

decision to demote or discharge the employee; and (4) whether the employer would have taken the

same action against the employee even in the absence of the protected speech. See Bryson, 888

F.2d at 1565-66. “The first two steps are questions of law; the final two steps are ‘questions of fact

designed to determine whether the alleged adverse employment action was in retaliation for the

protected speech.’” Cook v. Gwinnett Cnty. Sch. Dist., 414 F.3d 1313, 1318 (11th Cir. 2005)

(quoting Anderson v. Burke Cnty., Ga., 239 F.3d 1216, 1219-20 (11th Cir. 2001)).

To state a claim for First Amendment retaliation, a government employee must allege facts

showing: “(1) [she] engaged in speech or an act that was constitutionally protected,[4] (2) the

defendant’s retaliatory conduct adversely affected the protected speech or act, and (3) there is a

causal connection between the retaliatory actions and the adverse effect on the constitutionally-

protected speech or act.” O’Boyle v. Sweetapple, 187 F. Supp. 3d 1365, 1370 (S.D. Fla. 2016)

(citing Bennett v. Hendrix, 423 F.3d 1247, 1250 (11th Cir. 2005)).

4 The Court’s inquiry into whether a plaintiff has sufficiently alleged that her speech deserves constitutional

protection falls under the first two prongs of the Bryson test. As stated in Garcetti, there are two inquiries

that guide the interpretation of constitutional protections accorded to public officials:

The first requires determining whether the employee spoke as a citizen on a matter of public

concern. . . . If the answer is no, the employee has no First Amendment cause of action

based on his or her employer’s reaction to the speech. . . . If the answer is yes, then the

possibility of a First Amendment claim arises. The question becomes whether the relevant

government entity had an adequate justification for treating the employee differently from

any other member of the general public.

Garcetti, 547 U.S. at 418 (citations omitted).

1. Constitutionally Protected Speech

The threshold issue before the Court is whether Green’s speech is constitutionally

protected. In order to receive protection under the First Amendment, an employee’s speech must

be “fairly characterized as constituting speech on a matter of public concern.” Bryson, 888 F.2d at

1565 (citations omitted). “To fall within the realm of the ‘public concern,’ an employee’s speech

must relate to a matter of political, social, or other concern to the community.” Morgan v. Ford, 6

F.3d 750, 754 (11th Cir. 1993) (alterations omitted) (quoting Connick v. Meyers, 461 U.S. 138,

146 (1983)); see also Boyce v. Andrew, 510 F.3d 1333, 1343 (11th Cir. 2007) (per curiam)

(“Deciding whether a government employee’s speech relates to his or her job as opposed to an

issue of public concern must be determined by the content, form, and context of a given statement,

as revealed by the whole record.” (citations omitted)). “Absent extraordinary circumstances,

however, First Amendment protection remains unavailable when a public employee speaks not as

a citizen upon matters of public concern, but instead as an employee upon matters only of personal

interest.” Morgan, 6 F.3d at 754 (citation omitted) (alterations omitted); see also Alves, 804 F.3d

at 1160 (finding that employees speaking on matters of personal interest were not entitled to First

Amendment protection).

Defendants do not specifically challenge whether Green’s speech warrants constitutional

protection, but instead claim that the Complaint is “vague[,]” “conclusory[,]” and “wholly devoid

of specific facts related to [Green’s] alleged speech.” ECF No. [17] at 6-7; see also ECF No. [19]

at 6. Defendants’ characterization of the Complaint is inaccurate. Rather, according to the

Complaint, while campaigning for public office, Green “initiat[ed] robust dialogue” to “the

community-at-large” on social justice issues, such as the “equitable treatment of African American

participants in the criminal justice system.” ECF No. [1] ¶¶ 7, 10. Green further alleges that

Defendant Finkelstein purportedly “took issue” with her statements, which “were made completely

outside the scope of [Green’s] employment,” and consequently terminated Green the “morning

following” her election loss. Id. ¶¶ 8, 10.

Thus, the allegations in the Complaint sufficiently indicate that Green seeks constitutional

protection for her public statements regarding social justice issues. Further, while Green

improperly attempts to allege additional facts in her Responses to the Motions, the Court finds that

Plaintiff’s Complaint, as currently pled, can withstand scrutiny at the dismissal stage. See

Wennersten v. Commercial Diver Servs., N.A. Inc., No. 12-60975-CIV, 2012 WL 3230419, at *1

n.1 (S.D. Fla. Aug. 6, 2012) (a plaintiff “may not amend his complaint through new allegations

raised when responding to a motion to dismiss.” (citations omitted)).

Taking the well-pleaded factual allegations as true, and drawing all reasonable inferences

in Green’s favor, the Court finds that the Complaint sufficiently alleges facts to support Green’s

claim of retaliation for engaging in constitutionally protected speech. First, Green’s alleges that

her statements did not derive from her professional responsibilities as assistant public defender,

but rather from her campaign for public office. See Lane, 573 U.S. at 240 (“the mere fact that a

citizen’s speech concerns information acquired by virtue of his public employment does not

transform that speech into employee—rather than citizen—speech”); see also Briggs v. Potter

Cnty., 787 F. App’x 123, 129 (3d Cir. 2019) (“statements [] made in the context of a political

campaign, [are] necessarily a function of one’s actions as a citizen”). Second, Green’s statements

on social justice issues necessarily implicate a matter of public concern. See Boyce, 510 F.3d at

1344 (“The relevant inquiry is not whether the public would be interested in the topic of the speech

at issue but rather is whether the purpose of the [the plaintiff’s] speech was to raise issues of public

concern.” (citations omitted) (alterations omitted)); see also Belyeu v. Coosa Cnty. Bd. of Educ.,

998 F.2d 925, 929 (11th Cir. 1993) (“society possesses a compelling interest in the unrestrained

discussion of racial problems” (citing Leonard v. City of Columbus, 705 F.2d 1299, 1304-05 (11th

Cir. 1983) (holding that speech of state employees regarding racially discriminatory practices in

the police force “concerned not only internal police matters, but matters of interest to the

community-at-large as well”))).

The next step in the First Amendment analysis requires the Court to evaluate the Pickering

balancing test, and determine whether Defendants had adequate justification for treating Green

differently from any other member of the general public. See Pickering, 391 U.S. at 568. In

resolving the Pickering balance, the Eleventh Circuit has instructed courts to consider the

following factors in determining the government-employer’s interest in efficient provision of

public services: “(1) whether the speech at issue impedes the government’s ability to perform its

duties efficiently, (2) the manner, time and place of the speech, and (3) the context within which

the speech was made.” Bryson, 888 F.2d at 1567 (emphasis in original) (citation omitted); see also

Morris v. Crow, 117 F.3d 449, 457-58 (11th Cir. 1997) (“One relevant consideration is whether

the speech at issue ‘impairs discipline by superiors or harmony among co-workers, has a

detrimental impact on close working relationships for which personal loyalty and confidence are

necessary, or impedes performance of the speaker’s duties or interferes with the regular operation

of the [public employer’s] enterprise.’” (alteration in original) (quoting Rankin v. McPherson, 483

U.S. 378, 388 (1987))).

On Green’s side of the Pickering balance is her interest in speaking as a citizen on a matter

of public concern. See Connick, 461 U.S. at 145 (speech that touches on a matter of public concern

“occupies the highest rung of the hierarchy of First Amendment values, and is entitled to special

protection” (citation omitted)); see also Garcetti, 547 U.S. at 420 (“Were [public employees] not

able to speak on [the operation of their employers], the community would be deprived of informed

opinions on important public issues. The interest at stake is as much the public’s interest in

receiving informed opinions as it is the employee’s own right to disseminate it.” (alterations in

original) (quoting San Diego v. Roe, 543 U.S. 77, 82 (2004) (per curiam))).

On Defendants’ side of the Pickering balance is the “need to maintain loyalty, discipline

and good working relationships among those [they] supervise[.]” Dartland v. Metro. Dade Cnty.,

866 F.2d 1321, 1324 (11th Cir. 1989). Although Defendant Finkelstein maintains that the decision

to terminate Green resulted from her “unprofessional conduct,” ECF No. [19] at 14, Defendants

fail to include any argument regarding the nature of the unprofessional conduct. Unsurprisingly,

the Complaint is also devoid of allegations suggesting that Defendants had a countervailing interest

in limiting Green’s speech. Accordingly, the Court finds that the Pickering balance weighs more

heavily in favor of Green.

2. Adverse Effect on Speech

To plead a prima facie case of First Amendment retaliation, Green must also allege that

Defendants’ retaliatory conduct adversely affects protected speech. Defendants maintain that the

Complaint should be dismissed because “[a]t no time does [Green] allege that her First

Amendment rights were inhibited.” ECF No. [17] at 9 (emphasis added); ECF No. [19] at 8. This

argument, however, disregards the appropriate objective standard—namely, whether “the

defendant’s allegedly retaliatory conduct would likely deter a person of ordinary firmness from

the exercise of First Amendment rights.” Bennett, 423 F.3d at 1254.

According to the Complaint, as a result of Defendants’ retaliatory termination, Green

suffered “lost wages, benefits, and other tangible damages,” as well as “emotional pain and

suffering damages, loss of the capacity for the enjoyment of life, and other intangible damages.”

ECF No. [1] ¶¶ 24, 40. These allegations sufficiently allege that Defendants’ actions would likely

deter a person of ordinary firmness from engaging in public speech on a matter of public concern.

Interestingly, the same unsuccessful argument was raised by Defendant Finkelstein in a

prior First Amendment retaliation action brought against him in this District. See generally

Brannon v. Finkelstein, No. 10-61813-CIV, 2011 WL 13113270, at *1 (S.D. Fla. Oct. 3, 2011).

Although Brannon involved circumstances that are somewhat different from the facts alleged here,

the legal standard remains the same. See id. at *3-4 (“It matters not whether the retaliation actually

chilled the plaintiff’s speech” because “the appropriate standard . . . is objective, not subjective

(citing Bennett, 423 F.3d at 1251)).

3. Causal Connection

Lastly, the Complaint sufficiently alleges a causal link between Green’s protected speech

and her subsequent termination. Green contends that the “morning following” her election loss

and notice of termination, Defendant Finkelstein participated in an interview with the South

Florida Sun Sentinel and “admitted” to the reporter that: (1) “[he] personally made the decision to

terminate” Green; and (2) “that the decision to terminate [Green was] based on statements and/or

speech that she had made during her campaign for the Public Defender’s Office.” ECF No. [1] ¶

8. Despite these well-pled allegations, Defendants nonetheless argue that the Complaint fails to

properly allege retaliatory motive. Yet again, Defendants’ arguments on this point ignore this

Court’s and “the Eleventh Circuit’s dictate that whether the speech was a substantial or motivating

factor in the retaliation is generally a question of fact for the jury.” Brannon, 2011 WL 13113270,

at *4 (citing Gattis v. Brice, 136 F.3d 724, 726 (11th Cir. 1998)).

For the foregoing reasons, the Court concludes that Green has stated a plausible claim for

First Amendment retaliation against both the Official Defendants and Defendant Finkelstein.

B. Qualified Immunity

Defendant Finkelstein, in his individual Motion, argues that even if Green has stated a

plausible cause of action for First Amendment retaliation, he is nonetheless entitled to qualified

immunity because he has not violated a clearly established right. “Qualified immunity offers

complete protection for government officials sued in their individual capacities if their conduct

‘does not violate clearly established statutory or constitutional rights of which a reasonable person

would have known.’” Kingsland v. City of Miami, 382 F.3d 1220, 1231 (11th Cir. 2004) (quoting

Vinyard v. Wilson, 311 F.3d 1340, 1346 (11th Cir. 2002)); see also Storck v. City of Coral Springs,

354 F.3d 1307, 1313 (11th Cir. 2003). “The purpose of this immunity is to allow government

officials to carry out their discretionary duties without the fear of personal liability or harassing

litigation, protecting from suit all but the plainly incompetent or one who is knowingly violating

the federal law.” Wood v. Kesler, 323 F.3d 872, 877 (11th Cir. 2003) (quoting Lee v. Ferraro, 284

F.3d 1188, 1194 (11th Cir. 2002)). The qualified immunity doctrine therefore represents “a balance

between the need for a remedy to protect citizens’ rights and the need for government officials to

perform their duties without the fear of constant, baseless litigation.” Kingsland, 382 F.3d at 1231

(citation omitted). Accordingly, “[q]ualified immunity is, as the term implies, qualified. It is not

absolute.” Id. at 1233.

“Generally speaking, it is proper to grant a motion to dismiss on qualified immunity

grounds when the ‘complaint fails to allege the violation of a clearly established constitutional

right.’” Corbitt v. Vickers, 929 F.3d 1304, 1311 (11th Cir. 2019) (quoting St. George v. Pinellas

Cnty., 285 F.3d 1334, 1337 (11th Cir. 2002)). To prevail on a motion to dismiss based on qualified

immunity, “the public official must first prove that he was acting within the scope of his

discretionary authority when the allegedly unconstitutional acts took place.” Storck, 354 F.3d at

1314 (citing Courson v. McMillian, 939 F.2d 1479, 1487 (11th Cir. 1991)).

“A government official acts within his discretionary authority if his actions were

(1) undertaken pursuant to the performance of his duties; and (2) within the scope of his authority.”

Mikko v. City of Atlanta, Ga., 857 F.3d 1136, 1144 (11th Cir. 2017) (citing Lenz v. Winburn, 51

F.3d 1540, 1545 (11th Cir. 1995)). “In applying each prong of this test, [courts] look to the general

nature of the defendant’s action, temporarily putting aside the fact that it may have been committed

for an unconstitutional purpose, in an unconstitutional manner, to an unconstitutional extent, or

under constitutionally inappropriate circumstances.” Holloman ex rel. Holloman v. Harland, 370

F.3d 1252, 1266 (11th Cir. 2004). “In other words, ‘a court must ask whether the act complained

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

an official’s discretionary duties.’” Mikko, 857 F.3d at 1144 (quoting Harbert Int’l, Inc. v. James,

157 F.3d 1271, 1282 (11th Cir. 1998)). “Once the public official has established that he was acting

within the scope of his discretionary authority, the burden shifts to the plaintiff to establish that

qualified immunity does not apply.” Storck, 354 F.3d at 1314 (citing Lee, 284 F.3d at 1194).

Here, Green does not dispute that Defendant Finkelstein was acting within the scope of his

discretionary authority as the Broward County Public Defender when he terminated Green. Thus,

because Defendant Finkelstein has satisfied the discretionary authority requirement, the burden

now shifts to Green to establish that qualified immunity is inapplicable here.

The United States Supreme Court has outlined a two-part test to determine whether a

plaintiff can meet its burden of rebutting a qualified immunity defense. First, the court must

determine whether, “[t]aken in the light most favorable to the party asserting the injury, [] the facts

alleged show the officer’s conduct violated a constitutional right[.]” Saucier v. Katz, 533 U.S. 194,

201 (2001). Second, if a constitutional right would have been violated under the plaintiff’s version

of the facts, the court must then determine “whether the right was clearly established.” Id. Courts

“may consider these two prongs in either order; an official is entitled to qualified immunity if the

plaintiff fails to establish either.” Piazza v. Jefferson Cnty., Ala., 923 F.3d 947, 951 (11th Cir.

2019) (citing Jacoby v. Baldwin Cnty., 835 F.3d 1338, 1344 (11th Cir. 2016)).

Moreover, “only Supreme Court cases, Eleventh Circuit caselaw, and [Florida] Supreme

Court caselaw can ‘clearly establish’ law in this circuit.” Thomas ex rel. Thomas v. Roberts, 323

F.3d 950, 955 (11th Cir. 2003) (citing Hamilton By & Through Hamilton v. Cannon, 80 F.3d 1525,

1532 n.1 (11th Cir. 1996)). The essence of this inquiry is the “public official’s objective

reasonableness, regardless of his underlying intent or motivation.” Kingsland, 382 F.3d at 1231-

32 (citing Harlow v. Fitzgerald, 457 U.S. 800, 819 (1982); Lee, 284 F.3d at 1195). “To be clearly

established, the contours of an asserted constitutional right ‘must be sufficiently clear that a

reasonable official would understand that what he is doing violates that right.’” Jones v. Cannon,

174 F.3d 1271, 1282 (11th Cir. 1999) (quoting Anderson v. Creighton, 483 U.S. 635 (1987)).

Indeed, “in the light of pre-existing law, the unlawfulness must be apparent.” Anderson, 483 U.S.

at 640. “Qualified immunity ‘gives ample room for mistaken judgments’ but does not protect ‘the

plainly incompetent or those who knowingly violate the law.’” Kingsland, 382 F.3d at 1231-32

(quoting Malley v. Briggs, 475 U.S. 335, 343 (1986)).

Nonetheless, “[t]he Supreme Court and [the Eleventh Circuit] have stated that a plaintiff

cannot strip a § 1983 defendant of his qualified immunity by citing to general rules or abstract

rights.” Jones, 174 F.3d at 1282 (citing Anderson, 483 U.S. at 639); see also Walker v. Schwalbe,

112 F.3d 1127, 1132 (11th Cir. 1997) (“Plaintiffs may not discharge their burden [of showing that

a right is clearly established] by referring to general rules and abstract rights.”). “Qualified

immunity focuses on the actual, specific details of concrete cases.” Walker, 112 F.3d at 1132.

Indeed, “‘clearly established law’ should not be defined ‘at a high level of generality’” but “must

be ‘particularized’ to the facts of the case” because otherwise, “‘[p]laintiffs would be able to

convert the rule of qualified immunity . . . into a rule of virtually unqualified liability simply by

alleging violation of extremely abstract rights.’” White v. Pauly, 137 S. Ct. 548, 552 (2017)

(citations omitted).

Here, the constitutional right at issue is Green’s ability to be free from retaliation in her

public employment for engaging in speech on matters of public concern. “The [Supreme Court]

has made clear that public employees do not surrender all their First Amendment rights by reason

of their employment. Rather, the First Amendment protects a public employee’s right, in certain

circumstances, to speak as a citizen addressing matters of public concern.” Garcetti, 547 U.S. at

417 (citations omitted); see also Travers v. Jones, 323 F.3d 1294, 1295 (11th Cir. 2003) (“The law

is clearly established that an employer may not demote or discharge a public employee for

engaging in protected speech.” (citations omitted)); Carollo v. Boria, 833 F.3d 1322, 1334 (11th

Cir. 2016) (“reasonable public officials would have known at the time of [plaintiff’s] termination

that it violated the First Amendment to terminate a colleague for speaking about matters of public

concern that are outside the scope of his ordinary job responsibilities”).

Defendant Finkelstein cites to Eleventh Circuit case law stating that “[b]ecause no bright-

line standard puts the reasonable public employer on notice of a constitutional violation, the

employer is entitled to immunity except in the extraordinary case where Pickering balancing would

lead to the inevitable conclusion that the discharge of the employee was unlawful.” Dartland, 866

F.2d at 1323. Here, however, Plaintiff alleges that Defendant Finkelstein “admitted” to terminating

Green’s employment in retaliation for her campaign speech on social justice issues, ECF No. [1]

¶ 8, and, as addressed above, the Court is unable to infer any lawful conduct of the Defendant

based on the Complaint’s allegations.5 Taking Green’s allegations as true, Defendant Finkelstein’s

actions were a clear violation of the First Amendment. See Chesser v. Sparks, 248 F.3d 1117, 1122

(11th Cir. 2001) (“It is axiomatic that a state may not demote or discharge a public employee in

retaliation for protected speech.” (citations omitted) (alterations omitted). Additionally, there is no

authority that could lead Defendant Finkelstein, or any reasonable public employer, to believe that

the acts in question were constitutional. “While previous cases need not have fundamentally

similar facts, the question is whether a government official has fair warning that his actions are

unconstitutional.” Brannon, 2011 WL 13113270, at *7 (citing Hope v. Pelzer, 536 U.S. 730, 741

(2002)). The Court finds that a reasonable public official in Defendant Finkelstein’s position would

have known at the time of Green’s termination that terminating an employee for speaking about

matters of public concern that are outside the scope of her ordinary job responsibilities would

violate the First Amendment.

Accordingly, upon review of Green’s Complaint, and in light of the current stage of these

proceedings, the Court concludes that Defendant Finkelstein is not entitled to the protections of

qualified immunity.

C. Injunctive Relief

The Official Defendants also contend that Green has insufficiently pled her request for

injunctive relief. “In order to obtain a preliminary injunction, [a] [p]laintiff must establish the

5 Defendant Finkelstein also suggests that because a public defender has the statutory authority to fire with

or without cause, he could not have known that the “administrative decision” to terminate Green could lead

to a violation of her First Amendment rights. ECF No. [19] at 16. This argument, however, is without merit

and contradicts the express purpose of § 1983. See Wyatt v. Cole 504 U.S. 158, 180 (1992) (Rehnquist, J.,

dissenting) (“[Section] 1983’s historic purpose was ‘to prevent state officials from using the cloak of their

authority under state law to violate rights protected against state infringement.’” (emphasis in original)

(quoting Lugar v. Edmondson Oil Co., 457 U.S. 922, 948 (1982))).

following four elements: (1) a substantial likelihood that it will prevail on the merits; (2) a

substantial threat that it will suffer irreparable injury if the injunction is not granted; (3) the

threatened injury to [p]laintiff outweighs the threatened harm the injunction may do to

[d]efendants; and (4) granting the preliminary injunction will not disserve the public interest.” It’s

A 10, Inc. v. Beauty Elite Grp., Inc., 932 F. Supp. 2d 1325, 1330 (S.D. Fla. 2013) (citing Church

v. City of Huntsville, 30 F.3d 1332, 1342 (11th Cir. 1994)). “Because a ‘preliminary injunction is

an extraordinary and drastic remedy,’ it is ‘not to be granted until the movant clearly carries the

burden of persuasion as to the four prerequisites.’” Id. (quoting Church, 30 F.3d at 1342); see also

Ne. Fla. Chapter of the Ass’n of Gen. Contractors of Am. v. City of Jacksonville, 896 F.2d 1283,

1285 (11th Cir. 1990).

At the motion to dismiss stage, Green does not need to establish each of the elements listed

above. Instead, Green must only plead factual allegations “sufficient to raise a right to relief above

the speculative level.” Twombly, 550 U.S. at 555. The Official Defendants argue only that Green’s

claim for injunctive relief fails to allege “any facts that demonstrate ‘imminent’ future harm to her

rights under the First Amendment.” ECF No. [17] at 12. Yet, according to the Complaint,

Defendants terminated Green in retaliation for her statements made while campaigning for public

office. As such, Green’s alleged injury is the retaliatory action she faced in violation of her First

Amendment rights, and this injury is ongoing and will continue indefinitely absent reinstatement.

ECF No. [1] ¶ (d); see also Khan v. Rundle, No. 05-23123-CIV, 2006 WL 8433478, at *11 (S.D.

Fla. Mar. 2, 2006) (finding that plaintiff’s inability to work at his former job constitutes a “future

injury”), aff’d sub nom. Khan v. Fernandez-Rundle, 287 F. App’x 50 (11th Cir. 2007); see also

Brannon, 2011 WL 13113270, at *8 (claim for injunctive relief survived where plaintiff alleged

that the “ongoing” and “continu[ing]” injury was that plaintiff was being retaliated against). Thus,

upon review, the Court concludes that Green’s request for injunctive relief is not subject to

dismissal.6

D. Punitive Damages

Finally, the Official Defendants argue that Green’s request for punitive damages should be

stricken. Rule 12(f) of the Federal Rules of Civil Procedure permits a court to “strike from a

pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter,”

and grants broad discretion in making this determination. Fed. R. Civ. P. 12(f); see also Morrison

v. Exec. Aircraft Refinishing, Inc., 434 F. Supp. 2d 1314, 1318-19 (S.D. Fla. 2005); Williams v.

Eckerd Fam. Youth Alt., 908 F. Supp. 908, 910 (M.D. Fla. 1995). Under Rule 12(f), “[a] motion

to strike will usually be denied unless the allegations have no possible relation to the controversy

and may cause prejudice to one of the parties.” Harty v. SRA/Palm Trails Plaza, LLC, 755 F. Supp.

2d 1215, 1218 (S.D. Fla. 2010) (citation omitted) (internal quotation marks omitted); see also

Tarasewicz v. Royal Caribbean Cruises Ltd., No. 14-CIV-60885, 2015 WL 1566398, at *1 (S.D.

Fla. Apr. 8, 2015) (same); BB In Tech. Co. v. JAF, LLC, 242 F.R.D. 632, 641 (S.D. Fla. 2007)

(same).

Section 1983 contemplates the availability of punitive damages “when the defendant’s

conduct is shown to be motivated by evil motive or intent, or when it involves callous or reckless

indifference to the federally protected rights of others.” Wright v. Sheppard, 919 F.2d 665, 670

(11th Cir. 1990) (quoting Smith v. Wade, 461 U.S. 30, 56 (1983)). For the reasons set forth above,

the Complaint alleges sufficient facts to support the claim of intentional wrongdoing required for

punitive damages. The Official Defendants, however, maintain that Green’s claim for punitive

damages should be stricken because a government entity is immune from punitive damages under

6 Even if the Court were to find that Green had not sufficiently pled a claim for injunctive relief, dismissal

of the Complaint would not be warranted because Green has also sought declaratory relief.

Case No. 20-cv-62160-BLOOM/Valle

42 U.S.C. § 1983. ECF No. [17] at 13. Yet, a close review of the Complaint reveals that Green’s

claim for punitive damages is asserted only against Defendant Finkelstein. Indeed, the allegations

in support of Green’s punitive damages claim speak only to the conduct of Defendant Finkelstein,

and not the Official Defendants. ECF No. [1] 8, 10, 18, 23. Additionally, in her Response, Green

does not maintain that punitive damages are available against a government entity, and instead

cites to Eleventh Circuit precedent holding that § 1983 contemplates the availability of punitive

damages against an individual defendant, such as Defendant Finkelstein. See Stallworth v. Shuler,

777 F.2d 1431, 1435 (11th Cir. 1985). By virtue of her Response, Green effectively concedes that

she has not asserted a claim for punitive damages against the Official Defendants, and that such

damages are likewise not recoverable. For the foregoing reasons, the Official Defendants’ motion

to strike Green’s claim for punitive damages is denied as moot.

IV. CONCLUSION

Accordingly, itis ORDERED AND ADJUDGED as follows:

1. The Official Defendants’ Motion, ECF No. [17], is DENIED.

2. Defendant Finkelstein’s Motion, ECF No. [19], is DENIED.

3. Defendants shall file an Answer to the Complaint, ECF No. [1], by no later than

February 17, 2021.

DONE AND ORDERED in Chambers at Miami, 4 Y_ 3, 2021.

BETH BLOOM

UNITED STATES DISTRICT JUDGE

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