“It does not appear that Congress intended to require district court review of a magistrate [judge]’s factual or legal conclusions, under a de novo or any other standard, when neither party objects to those findings.” (alterations added)
How later courts described this case
- “It does not appear that Congress intended to require district court review of a magistrate [judge]’s factual or legal conclusions, under a de novo or any other standard, when neither party objects to those findings.” (alterations added)
- noting that at least eight federal circuit courts of appeal (along with the district court in Echols
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 21-21536-Civ-COOKE/Damian
EDNAMARIE HERNANDEZ,
Plaintiff,
vs.
CITY OF HOMESTEAD, FLORIDA,
and GEORGE GRETSAS,
Defendants.
_________________________________/
ORDER
THIS MATTER is before the Court on the Report and Recommendation of the
Honorable Melissa Damian, U.S. Magistrate Judge (the “Report”) [ECF No. 63], regarding
Defendants’ Joint Motion to Dismiss Second Amended Complaint (“SAC”) with Prejudice (the
“Motion”) [ECF No. 45]. Plaintiff asserts the following claims in the SAC: violation of civil
rights under 42 U.S.C. § 1983 against George Gretsas, the City Manager of Homestead, Florida
from November 22, 2010, to January 3, 2020, based on hostile work environment, negative
employment references and conducting a secret investigation (Count 1); violation of civil rights
under 42 U.S.C. § 1983 against Gretsas based on retaliatory publication of false information to
local persons and others in city government (Count 2) and to the newly elected mayor (Count 3);
and violation of civil rights under 42 U.S.C. § 1983 against the City of Homestead, Florida (Count
4).
In her Report, Judge Damian recommends that the Motion be granted with prejudice as to
all four Counts asserted in the SAC. Judge Damian recommends that Count 1 be dismissed as a
shotgun pleading. (Report p. 14). Judge Damian additionally recommends that the Count 1
allegations, whether considered together or as individual actions, are insufficient to demonstrate
an adverse employment action as a basis for a First Amendment retaliation claim. (Report p. 26).
Judge Damian recommends that Count 2 be dismissed because there is no basis to conclude
that Gretsas’ allegedly retaliatory speech amounted to a threat, coercion, or intimidation which
intimated that punishment, sanctions, or adverse regulatory action would imminently follow.
(Report p. 37). See Echols v. Lawton, 913 F.3d 1313, 1320 (11th Cir. 2019) (noting that at least
eight federal circuit courts of appeal (along with the district court in Echols) require a plaintiff to
show that a public official’s allegedly retaliatory speech amounted to “a threat, coercion, or
intimidation intimating that punishment, sanctions, or adverse action will imminently follow.”)
(citing Suarez Corp. Industries v. McGraw, 202 F.3d 676, 687 (4th Cir. 2000) (collecting cases)).
In support of this recommendation, Judge Damian noted that Plaintiff did not learn of Gretsas’
conduct until years after the conduct ceased and that Plaintiff supplied the Court with the inference
that she did not even know who the alleged perpetrator was until well after the conduct ceased.
(Report p. 37).
Judge Damian recommends that Count 3 be dismissed because, notwithstanding the fact
that the SAC does not indicate when Plaintiff learned that the mayor had seen an allegedly
retaliatory dossier about Plaintiff, or the fact that Plaintiff was not otherwise aware of the existence
of the dossier until some time in 2020, the SAC fails to explain how Gretsas showing the mayor
Plaintiff’s dossier amounted to a threat, coercion, or intimidation of Plaintiff. (Report p. 38).
Judge Damian additionally recommends that, even if Counts 1 through 3 did sufficiently
allege First Amendment violations, they should nevertheless be dismissed because Gretsas is
entitled to qualified immunity. (Report pp. 28, 39). Finally, because Plaintiff failed to establish
that Gretsas violated Plaintiff’s constitutional rights as alleged in Counts 1 through 3, Judge
Damian recommends that Plaintiff’s Monell claim in Count 4 against the City of Homestead fails
and must be dismissed because the claim is predicated on Gretsas’ alleged violations as set forth
in Counts 1 through 3. (Report p. 45).
Plaintiff timely filed objections (the “Objections”) [ECF No. 64] to Judge Damian’s
disposition with respect to Counts 2, 3 and 4 of the SAC but did not object to Judge Damian’s
disposition with respect to Count 1. Defendants timely filed a response in opposition to Plaintiff’s
objections [ECF No. 65].
District courts must review de novo any part of a magistrate judge’s disposition that has
been properly objected to. FED. R. CIV. P. 72(b)(3). When no party has timely objected, “the court
need only satisfy itself that there is no clear error on the face of the record in order to accept the
recommendation.” FED. R. CIV. P. 72 advisory committee’s notes (citation omitted). Although
Rule 72 is silent on the standard of review, the United States Supreme Court has determined
Congress’ intent was to require de novo review only when objections are properly filed, not when
neither party objects. See Thomas v. Arn, 474 U.S. 140, 150 (1985) (“It does not appear that
Congress intended to require district court review of a magistrate [judge]’s factual or legal
conclusions, under a de novo or any other standard, when neither party objects to those findings.”
(alterations added)). Because Plaintiff filed timely objections to parts of Judge Damian’s Report,
the Court reviews those parts of Judge Damian’s Report de novo.
In her objections, Plaintiff argues that Judge Damian erred with respect to Counts 2 and 3
in finding that Gretsas’ conduct did not constitute a threat, coercion, or intimidation intimating that
punishment would imminently follow. To support this objection, Plaintiff attempts to recast the
SAC, arguing that the allegations reflect that she was intimidated in “real time” by Gretsas’ alleged
retaliatory publication. (Objections p. 3). Plaintiff also argues that Judge Damian erred in finding
that Gretsas is entitled to qualified immunity with respect to Counts 2 and 3 because Plaintiff
contends that Gretsas was on notice that his conduct violated clearly established law. (Objections
p. 10). Finally, because Plaintiff maintains that she states a cause of action against Gretsas with
respect to Counts 2 and 3, she argues that her Monell claim in Count 4 against the City of
Homestead should not be dismissed. (Objections p. 10).
After conducting a de novo review of the record, Plaintiff’s objections, Defendants’
response to Plaintiffs’s objections, and the relevant legal authorities, the Undersigned finds that
Counts 2 and 3 of the SAC should be dismissed because there is no basis to conclude that Gretsas’
allegedly retaliatory speech amounted to a threat, coercion, or intimidation intimating that
punishment, sanctions, or adverse regulatory action would imminently follow. The Undersigned
also finds that Counts 1 through 3 should be dismissed because Gretsas is entitled to qualified
immunity and that Plaintiff’s Monell claim in Count 4 against the City of Homestead must be
dismissed because there is no underlying constitutional violation by a city actor. The Court finds
that there is no clear error as to Judge Damian’s disposition with respect to Count 1 of the SAC.
For the foregoing reasons, it is
ORDERED AND ADJUDGED that Judge Damian’s Report [ECF No. 63] is
ACCEPTED AND ADOPTED. Accordingly, Defendants’ Motion to Dismiss Second Amended
Complaint with Prejudice [ECF No. 45] is GRANTED. The Clerk is instructed to CLOSE this
case. Any pending deadlines are TERMINATED. Any other pending motions are DENIED as
moot.
DONE AND ORDERED in Miami, Florida this 13th day of September 2022.
Case No. 21-21536-Civ-COOKE/Damian
KATHLEEW M. WILLIAMS
UNITED STATES DISTRICT JUDGE
for Marcia G. Cooke, United States District Judge
ce: Melissa Damian, U.S. Magistrate Judge
counsel of record