# Keppel v. Nocco

> District Court, M.D. Florida · September 24, 2021

URL: https://www.frixlaw.com/law-library/cases/10642113

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** September 24, 2021
- **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/10642113

## How later opinions describe it (automated extraction)

- explaining that section 895.05(6) of the Florida criminal RICO statute “allows a private plaintiff to bring a civil suit for equitable relief only”

## Opinion text

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
CHARLES KEPPEL, JR,
Plaintiff,

v. Case No. 8:20-cv-3003-KKM-TGW
CHRISTOPHER NOCCO, JEFFREY
HARRINGTON, STACY JENKINS,
and JOHN COLLIER,
Defendants.

ORDER
Plaintiff Charles Keppel, Jr., resigned from the Pasco County Sheriffs Office and

now brings Racketeer Influenced and Corrupt Organizations Act (RICO) and
constitutional claims against his former supervisors. But his efforts are unsuccessful.
Instead, Keppel’s Amended Complaint constitutes an impermissible shotgun pleading and,
in the alternative, fails to state a claim upon which relief can be granted. As a result, the
Court grants Defendants’ motion to dismiss (Doc. 19), dismisses Keppel’s Amended
Complaint with prejudice, and directs the clerk to enter judgment in Defendants’ favor.
Procedural History
Like the other related cases in this saga, the history of this litigation is both
protracted and procedurally painful, yet with little advancement on the merits. On April

16, 2019, Christopher J. Squitieri and two other plaintiffs filed a complaint against fifteen
defendants, all of whom were current or former employees of the Pasco County Sheriff's
Office (“Squitieri litigation”), alleging a civil RICO and state law claim. See Squitieri v.
Nocco, 8:19-cv-0906-KKM-AAS. A couple months later, an amended complaint was
filed in the case; it named twenty plaintiffs—including Keppel—and forty-five defendants.
After receiving leave from the Court (at that time, the case was before the Honorable
Charlene Honeywell), the Squitieri litigation plaintiffs filed a second amended complaint

on August 7, 2019. Defendants moved to dismiss plaintiffs’ second amended complaint
less than a week later. During a hearing on defendants’ motion to dismiss, Judge Honeywell
step-by-step explained the deficiencies remaining in the plaintiffs’ pleading and orally
granted-in-part defendants’ motion to dismiss the second amended complaint and directed
plaintiffs to file a third amended complaint that complied with the Federal Rules of Civil
Procedure. The Squitieri litigation plaintiffs filed a third amended complaint, which the
defendants again moved to dismiss.
After entering an order to show cause and considering plaintiffs’ response, Judge
Honeywell severed the Squitieri litigation claims and ordered plaintiffs to pursue their
claims in separate actions against the appropriate defendants by December 16, 2020.
Keppel initiated this action by filing a complaint against Defendants Christopher
Nocco, Jeffrey Harrington, Stacy Jenkins, and John Collier. (Doc. 1.) Keppel then filed an

Amended Complaint on February 19, 2021, alleging a civil RICO claim (Count I) and

various constitutional violations (Count IT). (Doc. 15.) Defendants move to dismiss the
Amended Complaint as a shotgun pleading and for failure to adequately plead RICO and
constitutional claims. (Doc. 19.) Keppel opposes the motion to dismiss (Doc. 23), and the
Court stayed discovery pending the resolution of the motion to dismiss (Doc. 24).
Il. Factual Background
Keppel’s Amended Complaint describes his opposition to one of the Sheriffs
Office’s programs, statements he made on social media, directions he gave to subordinates,
investigations from the Defendants into Keppel, and his ultimate termination from the
Sheriff's Office.
First, Keppel describes the “Intelligence Led Policing” (ILP) program that the
Sheriff's Office had implemented. Keppel alleges the ILP program was instituted by the
Sheriffs Office in 2011 and is unconstitutional, “target[ing] those deemed to be ‘prolific
offenders,” and instructing law enforcement “to focus [their] efforts on those criminals
who [they] have reason to believe are frequent or prolific offenders.” (Doc. 15 at 16,
18.) “The major problem with the ILP practices,” Keppel alleges, is that they rest on the

notion that “[s]peed is critical to success and bureaucratic processes that delay
implementation must be overcome”’—even if those “bureaucratic processes” “are the
fundamental constitutional considerations of ‘probable cause’ and the many other

constitutional protections that apply to all citizens in a free society.” (Id. at 4 19.) Keppel
directed “his deputies to ignore the directive of the Intelligence Led Policing [program] to
harass alleged prolific offenders.” (Id. at 4 24.) Because Keppel did not “play[] along” and
“enforc[e] the unconstitutional dimensions and components of the ILP Program against
innocent citizens of Pasco County,” Defendants retaliated against him with “baseless
internal departmental investigations intended to ruin [his] career.” (Id. at (4 21-22.)
The first Internal Affairs Complaint was filed against Keppel for “allegedly mocking
Defendants” Collier and Jenkins on Facebook. (Id. at § 28.) Earlier in his Amended
Complaint, Keppel admitted that he had “made a post on Facebook[] venting about his
Commanding Staff Supervisors,” (id. at 4 25) but contends that he “did not mention any
particular individuals” as the Internal Affairs Complaint claimed he did, (id. at 4 28).
Instead, Keppel alleges that the first Internal Affairs Complaint was filed as a retaliatory
measure against Keppel for arresting a suspect when Defendant Collier “instructed
[Keppel’s] deputy not to arrest” the suspect and in retaliation for Keppel’s “reluctance [to]
blindly following the Department[’]s ILP program.” (Id. at 4 26, 29.)
The second Internal Affairs Complaint was filed because Keppel allegedly
disobeyed Defendants Jenkins and Collier when he sent “his squad their stats.” (Id. at
30.) Keppel claims that “he was not the person that released the stats, some else did.”

(Id.) The third Internal Affairs Complaint was filed “for alleged careless disregard,” and
resulted in Keppel being fired. (Id. at 4 32.)
Keppel alleges that “due to the Pasco [County] Sheriffs Office’s false Internal
Affairs Complaints and the negative references provided from [the] Pasco [County]
Sheriff's Offices Human Resources” department, Keppel was denied employment at eight
police departments. (Id. at § 34.)
III. Analysis

a. Shotgun Pleading
Defendants first argue that the Amended Complaint should be dismissed as an
impermissible shotgun pleading. (Doc. 19 at 4.) The Court concurs.

i. Legal Standard
A shotgun pleading is any pleading which “fail[s] to one degree or another . . . to

give the defendants adequate notice of the claims against them and the grounds upon which
each claim rests.” Weiland v. Palm Beach Cnty. Sheriffs Off, 792 F.3d 1313, 1323 (11th
Cir. 2015). Although shotgun pleadings can take many forms, the Eleventh Circuit has
identified four “rough types” or categories of shotgun complaints. Id. at 1321-23. First, the

most common type contains “multiple counts where each count adopts the allegations of
all preceding counts, causing each successive count to carry all that came before and the last

count to be a combination of the entire complaint.” Id. at 1321 (footnote omitted). The

second type of shotgun pleading is “replete with conclusory, vague, and immaterial facts

not obviously connected to any particular cause of action.” Id. at 1321-22 (footnote
omitted). “The third type of shotgun pleading is one that commits the sin of not separating
into a different count each cause of action or claim for relief.” Id. at 1322-23 (footnote
omitted). “Fourth, and finally, there is the relatively rare sin of asserting multiple claims

against multiple defendants without specifying which of the defendants are responsible for
which acts or omissions, or which of the defendants the claim is brought against.” Id.
(footnote omitted). “The unifying characteristic of all types of shotgun pleadings is that
they fail . . . to give the defendants adequate notice of the claims against them and the
grounds upon which each claim rests.” Id. (footnote omitted). And they violate the Federal
Rules of Civil Procedure, most notably Rules 8 and 10.

ii. Analysis
Keppel’s Amended Complaint “commits the sin of not separating into a different

count each cause of action or claim for relief.” Id. at 1322-23 (footnote omitted). Keppel
received notice of pleading deficiencies once the amended complaint’ was filed in the
Squitieri litigation in 2019. Indeed, at a hearing on the defendants’ motion to dismiss the
second amended complaint in the Squitieri litigation, Keppel’s attorney, the same counsel

as in the Squitieri litigation and in this case and the signatory of Keppel’s Amended

' Keppel joined as a plaintiff in the amended complaint filed in the Squitieri litigation.

Complaint here, admitted that the second amended complaint was “poorly drafted.”
Squitieri v. Nocco, 8:19-cv-0906-KKM-AAS, (Doc. 171 at 7). In the same hearing, Judge
Honeywell opined that “the complaint [was] so poorly drafted” that she could not “even

get to the merits of it” and that the amended complaint was “absolutely” a “shotgun
pleading”; “there [was] no mistake about it.” (Id. at 6, 8.) Despite these judicial warnings
and multiple motions to dismiss in the Squitieri litigation that highlighted the complaints’
shortfalls, the deficiencies remained in Keppel’s three Squitieri litigation complaints and

two complaints in this case. Rather than correct the deficiencies, Keppel persisted in
submitting poorly drafted pleadings by copying and pasting numerous paragraphs from

previous iterations of the Squitieri litigation complaints and his first complaint in this case

into his Amended Complaint that is now before the Court.
In Count II of his Amended Complaint, Keppel improperly lumps together a variety
of constitutional violations.” (See Doc. 15 at 41-46.) Keppel alleges that “Defendants,
in their official capacities, punished [Keppel] for exercising his First Amendment rights,”
(id. at § 43); that Defendant Nocco took “a valuable property right protected by the
Constitution” away from Keppel (his job), (id. at § 44); that Defendants “abridged and
restrained [Keppel’s] right to free speech as guaranteed by the Florida . . . Constitution,”

2 Count I of Keppel’s Amended Complaint also alleges multiple claims. Specifically, he alleges both federal
and state RICO claims. (Doc. 15 at ¥ 40 (alleging violations of 18 U.S.C. § 1961 and section 895.02(8)(b)
of the Florida Statutes).)

(id. at § 45); that Defendants “denied [Keppel] equal protection of the law,” (id.); and that
Defendants’ conduct “constitutes an unlawful and unauthorized taking of [Keppel’s] job
via forced resignation, his ‘private property,’ without just compensation, without due

process of law, and without a public purpose, in violation of the [Fifth] Amendment,” (id.).
In the six paragraphs that comprise Count II, Keppel appears to allege violations of his
First, Fifth, and Fourteenth Amendment rights, as well as right to free speech under the
Florida Constitution. (See id. at 41-46.) Of course, his earlier allegation in the
Amended Complaint listed “the Fourth, Fifth, and Fourteenth Amendment[s].” (See id.

at ¥ 2 (without mentioning the First Amendment).) “[WJ]here a plaintiff asserts multiple
claims for relief, a properly drafted pleading ‘will present each claim for relief in a separate
count.” Marlborough Holdings Grp., Ltd. v. Azimut-Benetti, Spa, Platinum Yacht
Collection No. Two, Inc., 505 F. App’x 899, 907 (11th Cir. 2013) (quoting Anderson v.
Dist. Bd. of Trs. of Cent. Fla. Cmty. Coll., 77 F.3d 364, 366 (11th Cir. 1996)). The failure

to separate each claim for relief into a different count, as required by Rule 10(b), is a
hallmark of a shotgun pleading and makes it “virtually impossible to know which
allegations of fact are intended to support which claim(s) for relief.” Anderson, 77 F.3d at
366; see Barmapov, 986 F.3d at 1325. Accordingly, the Court dismisses Keppel’s Amended
Complaint as an impermissible shotgun pleading.

IV. Failure to State a Claim under Rule 12(b)(6)
In the alternative, Defendants argue that Keppel’s claims—the RICO and
constitutional claims—fail to state a claim upon which relief may be granted. (Doc. 19 at
7-22.) Again, the Court agrees.
a. Legal Standards

i. Rule 12(b)(6) Standard
To survive a Rule 12(b)(6) motion to dismiss, a plaintiff must plead sufficient facts

to state a claim that is “plausible on its face.” Iqbal, 556 U.S. at 678 (citation omitted). A
claim is plausible on its face when a plaintiff “pleads factual content that allows the court

to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
Id. “LA] plaintiffs obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief requires
more than labels and conclusions, and a formulaic recitation of the elements of a cause of

action will not do.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (alteration
in original) (citations omitted). “Factual allegations must be enough to raise a right to relief
above the speculative level... .” Id.
When considering the motion, the court accepts all factual allegations of the
complaint as true and construes them in the light most favorable to the plaintiff. Pielage v.
McConnell, 516 F.3d 1282, 1284 (11th Cir. 2008) (citation omitted). Courts should limit
their “consideration to the well-pleaded factual allegations, documents central to or

referenced in the complaint, and matters judicially noticed.” La Grasta v. First Union Sec.,
Inc., 358 F.3d 840, 845 (11th Cir. 2004) (citations omitted).
ii. Federal RICO Claim
The Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C.
§§ 1961-1968, provides a private right of action for treble damages to “[a]ny person injured
in his business or property by reason of a violation” of the Act’s criminal prohibitions.
§ 1964(c); Bridge v. Phoenix Bond & Indem. Co., 553 U.S. 639, 641 (2008). To state a

prima facie civil RICO claim under § 1964(c), a plaintiff must establish “three essential
elements: first, that the defendant[s] committed a pattern of RICO predicate acts under

18 U.S.C. § 1962; second, that the plaintiff suffered injury to business or property; and,
finally, that the defendant[s’] racketeering activity proximately caused the injury.” Simpson

v. Sanderson Farms, Inc., 744 F.3d 702, 705 (11th Cir. 2014) (citations and punctuation
omitted). Failing to adequately plead any one of these elements warrants dismissal of the
plaintiffs complaint for failure to state a claim upon which relief may be granted. See
Cisneros v. Petland, Inc., 972 F.3d 1204, 1211 (11th Cir. 2020).
To allege a pattern of predicate acts, a plaintiff must “show that the racketeering
predicates are related, and that they amount to or pose a threat of continued criminal
activity.” HJ. Inc. v. Nw. Bell Tel. Co., 492 U.S. 229, 239 (1989). Continued criminal

activity, or “continuity,” can be shown through either a “closed period of repeated conduct”
(closed-ended continuity) or “past conduct that by its nature projects into the future with
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a threat of repetition” (open-ended continuity). Id. at 241. Closed-ended continuity can be
alleged when the allegations show a “series of related predicates extending over a substantial
period of time.” Id. at 242. To allege predicates extending over a substantial period of time,

a plaintiff must allege at least a period of nine months, although any “scheme|] lasting less
than a year” may be too insubstantial. Jackson v. BellSouth Telecomms., 372 F.3d 1250,
1266 (11th Cir. 2004). Open-ended continuity can be shown through a “threat of
continued racketeering activity.” HJ. Inc., 492 U.S at 242.
1. Predicate Acts
An act of racketeering activity, commonly known as a “predicate act,” is statutorily
defined and includes a long list of state and federal crimes. See 18 U.S.C. § 1961(1). In
order to be a predicate act, the act must be indictable under a variety of federal statutes or

constitute an “act or threat involving murder, kidnapping, gambling, arson, robbery,
bribery, extortion, dealing in obscene matter, or dealing in a controlled substance or listed
chemical” which is chargeable under state law.’ Id. Keppel alleges that Defendants have
“engaged in a pattern and practice, through the Pasco [County] Sheriffs Office, of

engaging in ‘racketeering activity” through the following predicate acts: (1) tampering with

a witness, victim, or informant under 18 U.S.C. § 1512(b)(2)(A)’*; (2) retaliating against a

8 Section 1961(1) also provides several other ways of alleging a predicate act which are irrelevant here.
4 Although Keppel’s Amended Complaint does not specify which provision of § 1512 he alleges that the
Defendants violated, he quotes exclusively from § 1512(b)(2)(A) and only addresses the elements of that
provision in alleging the violation of § 1512. Given Keppel’s focus on § 1512(b)(2)(A), the Court assumes
that is the only provision of § 1512 Keppel intended to plead.
11

witness, victim, or an informant under § 1513(e); (3) mail fraud under § 1341; (4) wire
fraud under § 1343; (5) tampering with a witness, victim, or informant under section
914.22 of the Florida Statutes; and (6) retaliating against a witness, victim, or informant
under section 914.23 of the Florida Statutes. (Doc. 15 at 44 12, 37-40.)
“A plaintiff must put forward enough facts with respect to each predicate act to
make it independently indictable as a crime.” Cisneros, 972 F.3d at 1215. Keppel fails to
plead any predicate acts under 18 U.S.C. § 1961(1).
a. Keppel fails to plead a violation of either 18 U.S.C.
§§ 1512 or 1513.
Keppel alleges that Defendants violated 18 U.S.C. § 1512(b) (tampering with a

witness, victim, or an informant) and § 1513(e) (retaliating against a witness, victim, or
informant) as predicate acts under § 1961(1). But § 1512(b) prohibits interference with
those testifying in an “official proceeding” or interfering with certain communications to a
“law enforcement officer or judge of the United States” and § 1513(e) prohibits retaliating
against a person for providing information about a Federal offense to a “law enforcement
officer.” Keppel has not alleged any participation in an official proceeding or that he
provided information about a Federal offense to a law enforcement officer, as “official
proceeding” and “law enforcement officer” are statutorily defined.
Section 1512(b) subjects anyone to fine, imprisonment, or both who knowingly

uses—or attempts to use—intimidation, threats, or persuasion to influence, delay, or

12

prevent the testimony of any person in an official proceeding or who “hinder[s], delay[s],

or prevent[s] the communication to a law enforcement officer or judge of the United
States” information related to a Federal offense or violations of postconviction release

agreements. Section 1513(e), for its part, prohibits retaliation against a person who attends

an official proceeding or provides information related to a Federal offense to a “law
enforcement officer.” The statute defines “official proceeding” as either (A) “a proceeding
before a judge or court of the United States, a United States magistrate judge, a bankruptcy
judge, a judge of the United States Tax Court, a special trial judge of the Tax Court, a
judge of the United States Court of Federal Claims, or a Federal grand jury”; (B) “a
proceeding before the Congress”; (C) “a proceeding before a Federal Government agency
which is authorized by law’; or (D) “a proceeding involving the business of insurance whose

activities affect interstate commerce before any insurance regulatory official or agency or

any agent or examiner appointed by such official or agency to examine the affairs of any
person engaged in the business of insurance whose activities affect interstate commerce.”

18 U.S.C. § 1515(a)(1). And “law enforcement officer” is defined as “an officer or employee
of the Federal Government, or a person authorized to act for or on behalf of the Federal
Government or serving the Federal Government as an adviser or consultant.” § 1515(a)(4).
Keppel alleges that one of his deputies was battered and instructed to “withhold his
official statement and records” and not to arrest the person who battered him but that,

13

notwithstanding that instruction, Keppel (with his deputy) went and arrested the person.
(Doc. 15 at 26, 37.) Keppel claims that violating this order “resulted in a chain of
harassment which led to a forced resignation.” (Id. at □ 37.) He also alleges that he told his
deputies not to follow the ILP program. (Id. at § 24.) And Keppel claims he made a post
on Facebook that “vent[ed] about his Commanding Staff Supervisors harassing him.” (Id.

at 425.) None of these implicate an official proceeding as defined in 18 U.S.C.
§ 1515(a)(1), meaning Keppel’s claim for intimidation under § 1512(b) fails.
Further, Keppel’s claim under § 1513(e) fails because Keppel has not alleged that
he gave information related to a possible commission of a Federal offense to any law
enforcement officer. Keppel does not allege the battery on his deputy was a Federal offense,
but—assuming it constituted a Federal offense—Keppel does not allege anywhere that he
communicated information about the offense to “an officer or employee of the Federal
Government” or a person authorized to act for the Federal Government or a person serving
the Federal Government as “an adviser or consultant.” § 1515(a)(4). Lacking any such
allegation, Keppel cannot claim he was retaliated against for giving information to a law
enforcement officer about a Federal offense under § 1513(e).
b. Keppel fails to plead a violation of either 18 U.S.C.
§§ 1341 or 1343.
Keppel alleges that the Defendants violated 18 U.S.C. §§ 1341 and 1343 by creating
the Internal Affairs Complaints “as a scheme, under false pretenses, to harass [Keppel] to

14

force him to resign or create grounds for a dismissal” and “as all documents . . . were
transmitted either by mail or electronic means . . . to the . . . [other] police and sheriff's
departments.”° (Doc. 15 at J 38, 39.)
To establish liability under the federal mail and wire fraud statutes, a plaintiff must

prove: “(1) that defendants knowingly devised or participated in a scheme to defraud
plaintiffs, (2) that they did so willingly with an intent to defraud, and (3) that the
defendants used the U.S. mails or the interstate wires for the purpose of executing the
scheme.” Langford v. Rite Aid of Alabama, Inc., 231 F.3d 1308, 1312 (11th Cir. 2000)
(citation omitted). The scheme to defraud must seek to defraud the victim of “money or
property.” Kelly v. United States, 140 S$. Ct. 1565, 1571 (2020). Finally, when alleging
fraud, “a party must state with particularity the circumstances constituting fraud.” Fed. R.
Civ. Proc. 9(b). Particularity under Rule 9(b) requires that a plaintiff plead “facts as to

time, place, and substance of the defendant’s alleged fraud,’ specifically ‘the details of the
defendant[’s] allegedly fraudulent acts, when they occurred, and who engaged in them.”
U.S. ex rel. Atkins v. McInteer, 470 F.3d 1350, 1357 (11th Cir. 2006) (alteration in
original) (quoting U.S. ex rel. Clausen v. Lab’y Corp. of Am., 290 F.3d 1301, 1310 (11th
Cir. 2002)). Rule 9(b)’s particularity requirement “serves an important purpose in fraud

5 The Amended Complaint actually alleges that the Defendants’ scheme was to harass “the Defendant to
force him to resign or create grounds for a dismissal.” (Doc. 15 at § 38.) Keppel clearly intended to allege
that the Defendants were harassing him, not one of the Defendants, so the Court will evaluate this
allegation under that assumption.
15

actions by alerting defendants to the ‘precise misconduct with which they are charged’ and

protecting defendants ‘against spurious charges of immoral and fraudulent behavior.”
Durham v. Bus. Mgmt. Assocs., 847 F.2d 1505, 1511 (11th Cir. 1988) (quotation
omitted).
Keppel fails to sufficiently allege that the Defendants violated the mail or wire fraud

statutes. The Court takes a generous reading of the Amended Complaint, yet still
concludes that Keppel fails to allege fraud with the particularity required by Rule 9(b) and
that, even had he alleged the fraud with sufficient particularity, he also fails to allege that
the scheme was to deprive Keppel of a protected property interest.
First, Rule 9(b) requires a plaintiff plead with specificity “the details of the
defendant[’s] allegedly fraudulent acts.” McInteer, 470 F.3d at 1357 (quotation omitted).
Keppel fails to allege fraud with the particularity required by Rule 9(b). Keppel alleges that
the Defendants “subjected [him] to three . . . false and retaliatory Internal Affairs
Complaints” and that the complaints caused other potential employers not to hire him.
(Doc. 15 at □□ 27, 34.) Here, Keppel’s allegations that the Defendants “subjected” him to
false and retaliatory complaints fail to specify (1) who authored the statements; (2) how
they were provided to other potential employers; and (3) when they were provided.°

° The Court also notes that Keppel only barely alleges what in the Internal Affairs Complaints were false.
See Neder v. United States, 527 U.S. 1, 25 (1999) (interpreting the mail and wire fraud statutes to require
that the falsehood in the scheme to defraud be material). Keppel makes conclusory allegations that all of
the Internal Affairs Complaints were false, but he fails to provide facts that make most of the allegations
plausible. (Doc. 15 at §27.) The first Internal Affairs Complaint charged Keppel with “mocking”
16

Specifically, for example, Keppel never explains whether the Defendants actually wrote and
filed the complaints, or if they misrepresented facts to coworkers, leading those coworkers

to file complaints. Keppel alleges that the first two Internal Affairs Complaints were filed
because he allegedly mocked Defendants Collier and Jenkins on social media and later
disobeyed them. (Id. at 44 28, 30.) But this just describes the topic of the Internal Affairs
Complaints and fails to clarify what role the Defendants had in creating them.
Keppel also fails to identify which Defendants engaged in which conduct. In
alleging that the Defendants retaliated against him with “baseless internal departmental
investigations” and “subjected [him] to three . . . false . . . Internal Affairs Complaints,”
(Doc. 15 at 4 22, 27), Keppel fails to specify which Defendant committed which actions.
And Keppel’s failure to identify how the Defendants “subjected” him to false Internal
Affairs Complaints, coupled with his failure to identify which Defendant committed which

actions, prevents Keppel’s Amended Complaint from alleging with particularity who

Defendants Collier and Jenkins on Facebook. (Id. at 4 28.) Keppel responds that his “posts did not mention
any particular individuals,” impliedly conceding that the posts existed and merely disputing whether he
could be blamed for “mocking” the Defendants. (Id.) But a concession that the post exists undermines the
Court’s ability to infer that the first Internal Affairs Complaint contained a falsehood. The third Internal
Affairs Complaint was for Keppel’s “alleged careless disregard.” (Id. at 432.) While none of Keppel’s
allegations implies that he was guilty of careless disregard, he also fails to supply any facts from which the
Court can reasonably infer that he was not guilty of careless disregard. In describing the second Internal
Affairs Complaint, however, Keppel sufficiently identifies the falsehood. The complaint charged Keppel
with disobeying Defendants Collier and Jenkins by “sending his squad their stats.” (Id. at § 30.) Keppel
responds that “he was not the person that released the stats, someone else did,” specifying with sufficient
precision that the falsehood was the proposition that Keppel was responsible for releasing the stats. (Id.) So
he satisfies Rule 9(b)’s requirement to identify the specific falsity in one of the three Internal Affairs
Complaints.
17

committed what fraudulent conduct. The closest he comes to alleging particular conduct

is alleging that the first two Internal Affairs Complaints alleged Keppel mocked
Defendants Collier and Jenkins on Facebook and later disobeyed them. (Id. at 4 27, 30.)
But these allegations only further confuse who Keppel alleges committed which actions.
He elsewhere alleges that the Defendants all subjected him to the Internal Affairs
Complaints, (id. at § 27), and he does not allege that Defendants Collier and Jenkins were
particularly or exclusively responsible for the first two Internal Affairs Complaints. The
other two Defendants, Nocco and Harrington, are thus left to guess whether Keppel alleges
they were responsible for these two complaints or if—contrary to his allegation that all the
Defendants subjected him to three Internal Affairs Complaints, (id. at §/27)—only
Defendants Collier and Jenkins were responsible. Finally, Keppel’s allegation that “[t]he
Defendants false Internal Affairs Complaints were created and pursued as a scheme,” (id.
at ¥ 38), fails to identify who created them—a mere implied possessive does not indicate
how the Defendants were responsible for the Internal Affairs Complaints.
To be sure, not all group pleading or “lumping” of defendants—where a plaintiff
merely pleads that the defendants, or a group of defendants, committed an act—is
impermissible under Rule 9(b). See Quality Auto Painting Ctr. of Roselle, Inc. v. State
Farm Indem. Co., 917 F.3d 1249, 1274 (11th Cir. 2019); Barmapov v. Amuial, 986 F.3d
1321, 1331 n.6 (11th Cir. 2021) (Tjoflat, J., concurring). But when alleging that a group

18

of defendants committed a certain action, a plaintiff must still give fair notice to each of
the defendants regarding what conduct they are alleged to have committed. See Quality
Auto Painting Ctr. of Roselle, Inc., 917 F.3d at 1275. If Keppel had alleged with
particularity how the Defendants “subjected” him to these Internal Affairs Complaints,
lumping the Defendants together might have been sufficient to give fair notice. But
Keppel, in failing to identify which specific conduct subjected him to the Internal Affairs
Complaints nor which Defendant was responsible for that conduct, fails to give the
Defendants fair notice of what fraudulent conduct they each allegedly committed.
Finally, Keppel does not allege when the Defendants “subjected” him to the Internal
Affairs Complaints. See McInteer, 470 F.3d at 1357. He alleges that he was an employee
at the Pasco County Sheriffs Office from October 1997 through January 2016, (Doc. 15

at ¥ 23), but he does not specify when any of the fraudulent acts occurred. Lacking any
specifics as to how the Defendants subjected Keppel to fraudulent Internal Affairs
Complaints or what role each Defendant played in such subjection, the Defendants may
have still attempted to understand the allegations against them by considering what they

were doing when the alleged fraud was supposed to have taken place. But Keppel’s
Amended Complaint fails to allege when they committed the fraudulent acts, leaving them
unable to determine what actions Keppel alleges they each committed.

19

Even if Keppel had succeeded in meeting the requirements of Rule 9(b), Keppel
would also fail to allege the substantive elements of mail or wire fraud. Keppel claims that
the Defendants “devised or participated in a scheme to defraud” when he alleges that they
“engaged in... defamation” when he “exhibited any resistance” to the ILP program. (Doc.
15 at 4 21.) Although he does not allege that the Defendants intended to obtain money or

property through their retaliatory scheme to defraud, he does allege that they “intended to

ruin [his] career and prevent[] him from gaining employment with any other law
enforcement agency.” (Id. at § 22.) Since neither the Eleventh Circuit nor the Supreme
Court have clearly answered whether a scheme where a perpetrator intends to deprive a

victim of property but does not intend to gain that property himself is sufficient as a
“scheme to defraud,” the Court assumes it does. Compare Kelly, 140 S. Ct. at 1571 (noting
that § 1343 prohibits “only deceptive ‘schemes to deprive [the victim of] money or
property” (quotation omitted) (alteration in original)), with United States v. Bradley, 644
F.3d 1213, 1240 (11th Cir. 2011) (“To gauge a defendant's intent to commit a fraudulent
scheme, then, we must determine whether the defendant attempted to obtain, by deceptive

means, something to which he was not entitled.” (emphasis added)).
But Keppel fails to identify any authority that indicates future employment is a kind
of vested property right or monetary interest protected by the mail and wire fraud statutes,
(see Docs. 15 and 23), and the Court is skeptical that Keppel is sufficiently entitled to

20

future employment and benefits to consider it his “property.” See Roitman v. New York
City Transit Auth., 704 F. Supp. 346, 349 (E.D.N.Y. 1989) (“Plaintiff here has alleged no

more than an expectation of employment. He has no property right in this expectation.”);
see also Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 577 (1972) (requiring a
plaintiff show he has “a legitimate claim of entitlement” before something is considered a
“property interest” under procedural due process). For this reason, in the absence of any
argument or caselaw by Keppel to the contrary, he fails to allege a predicate act of mail or

wire fraud to support his RICO claim.
Further, Keppel fails to sufficiently allege that the Defendants “used the U.S. mails

or the interstate wires for the purpose of executing the scheme.” Id. The sole allegation in
the Amended Complaint related to the mails or interstate wires is Keppel’s conclusory
allegation that the Internal Affairs Complaints were “transmitt[ed] . . . by mail or electronic

means .. . to the above-mentioned police and sheriffs departments.” (Doc. 15 at 4 39.)
Keppel fails to allege any specific facts as to what wires or mails were used or when so
employed that make his allegation plausible. Were the Internal Affairs Complaints mailed
from one office to another? Were they transmitted over a wire via email, uploaded to the

internet, or sent by fax? Nor does Keppel allege any acknowledgement from the police
departments that denied him employment indicating that they received these Internal
Affairs Complaints. The allegation that the document was “transmitted either by mail or

21

electronic means” is a mere legal conclusion that is not entitled to the presumption of truth.
Iqbal, 556 U.S. at 681. At bottom, Keppel fails to allege with particularity that the
Defendants committed mail or wire fraud or to allege that he was deprived of any
property—the expectation of employment being insufficient—and any facts that would

permit a plausible inference that the Internal Affairs Complaints were sent to other
potential employers using the mails or wires. Thus, he fails to state any predicate act of
mail or wire fraud.

c. Keppel fails to plead a predicate act under sections
914.22 and 914.23 of the Florida Statutes.
Keppel alleges that the Defendants “engaged in conduct in violation of... Fla. Stat.
§[§] 914.22 and 914.23, relating to tampering with or harassing a witness, victim, or
informant, and retaliation against a witness, victim, or informant.”” (Doc. 15 at 4 40.)
Section 914.22 of the Florida Statutes proscribes tampering with a witness or victim and

section 914.23 proscribes retaliating against a witness or victim. Because Keppel fails to
allege any use of intimidation, threats, bribery, or any official proceeding, he fails to allege

a violation of sections 914.22 and 914.23 of the Florida Statutes.

’ The Court assumes that Keppel is not intending to allege violations of these statutes in any way other
than as predicate acts for his RICO claim. Under section 914.24 of the Florida Statutes, civil actions can
only be brought for violations of sections 914.22 and 914.23 “upon application of the state attorney.” See
also Anthony Distributors, Inc. v. Miller Brewing Co., 882 F. Supp. 1024, 1034 (M.D. Fla. 1995) (denying
compensatory, exemplary, and punitive relief where plaintiff alleged violations of 914.22 and 914.23 because
“[njeither statute provides for an award of compensatory damages” and “the state attorney is the party
authorized to request [equitable] relief on behalf of the witnesses”). As Keppel is not the state attorney, he
cannot bring an action for violations of sections 914.22 and 914.23 of the Florida Statutes absent some civil
enforcement mechanism, like RICO.
22

Section 914.22 of the Florida Statutes proscribes intimidation, threats, or bribery to
induce someone to withhold testimony from an official investigation or proceeding and
harassment that prevents or dissuades someone from attending or testifying in an official

investigation or proceeding. Keppel alleges that Defendant Collier ordered Keppel’s
subordinate to “withhold his official statement and records” from an investigation into a
battery inflicted on the subordinate. (Doc. 15 at 44 26, 37.) Keppel further alleges that this

was “done as an act of intimidation and corrupt persuasion.”* (Id. at § 37.) But Keppel’s
allegation that the order was given “as an act of intimidation” merely recites an element of
the statute without providing any factual support. The Amended Complaint does not
allege that Defendant Collier threatened the deputy with disciplinary action, with bodily
injury, or other action. Nor does the Amended Complaint state that Defendant Collier
looked at the deputy menacingly or in a threatening posture. Instead, the allegation is a
legal conclusion that the Court need not accept as true. See Iqbal, 556 U.S. at 678.
Keppel also alleges that the Defendants violated section 914.23 by retaliating against

a witness, victim, or informant. This section proscribes “caus[ing] bodily injury to another

person or damag[ing] the tangible property of another person, or threaten[ing] to do so”

as retaliation for a person’s attendance or testimony in an official proceeding. Section

* Neither of these allegations show up in the paragraph where Keppel alleges sections 914.22 and 914.23
were violated. (See Doc. 15 at ¥ 40.) Instead, lacking any more of an allegation than the section numbers
and the titles of the provisions, the Court relies on the allegations Keppel made to support his claim that
the Defendants violated 18 U.S.C. § 1512. (See id. at § 37.)
23

914.21(4), in turn, defines “official proceeding” as a proceeding before a judge, court, grand
jury, the legislature, a federal agency authorized by law, or the Commission on Ethics.
Keppel does not allege that he attended or gave testimony in any proceeding before the
above audiences. Nor does he allege any bodily injury, damage to property, or any threats
of such harms. And, without any allegation that the deputy was to participate in a
statutorily defined “official proceeding” or that anyone was threatened with or caused
bodily injury or damage to property, Keppel’s allegation that Defendant Collier instructed
Keppel’s deputy to “withhold his official statement and records” does not make up the
deficiencies in Keppel’s section 914.23 allegation.
2. Keppel fails to allege a pattern of racketeering activity.
Essential to any RICO claim is the basic requirement of establishing a pattern of
racketeering activity that causes injury to the plaintiff. See Jackson, 372 F.3d at 1264;
Sanderson Farms, 744 F.3d at 712. “To successfully allege a pattern of racketeering activity,
[a] plaintiff|] must charge that: (1) the defendants committed two or more predicate acts
within a ten-year time span; (2) the predicate acts were related to one another; and (3) the
predicate acts demonstrated criminal conduct of a continuing nature.” Jackson, 372 F.3d

at 1264. To prove “a ‘pattern of racketeering activity’ it is not sufficient to simply establish

two isolated predicate acts.” Id. Continuity can be alleged by allegations of predicate acts
that take place over a substantial period of time (closed-ended) or by alleging a threat of

continuity (open-ended). See H.J. Inc., 492 U.S. at 241-42.
24

The closest that Keppel comes to alleging a predicate act of racketeering activity is
his allegations of mail or wire fraud. But even if Keppel successfully alleges predicate acts
of mail or wire fraud based on the Defendants sending the Internal Affairs Complaints to
other law enforcement agencies, Keppel does not state when any of these transmissions
(and thus, when the frauds) occurred. Because Keppel does not allege when the predicate
acts occurred, the Court cannot plausibly infer that the predicate acts took place over a
substantial period of time. Further, even if Keppel alleged the dates of these predicate acts
and those dates showed the predicate acts took place over a substantial period of time,
Keppel would likely still fail to allege a closed-ended pattern of racketeering activity because
all of those alleged acts would have been taken pursuant to the Defendants’ single goal of

preventing Keppel from finding future employment with a law enforcement department.
And when “RICO allegations concern only a single scheme with a discrete goal, the courts
have refused to find a closed-ended pattern of racketeering even when the scheme took
place over longer periods of time.” Jackson, 372 F.3d at 1267. Keppel thus fails to allege a
closed-ended pattern of criminal activity.
Keppel also fails to allege facts that would make an open-ended pattern of criminal

activity plausible. Specifically, he never alleges “that the illegal acts threatened repetition in
the future.” Id. (citation omitted). Keppel pleads that predicate acts of mail or wire fraud
occurred when the fraudulent Internal Affairs Complaints that the Defendants “subjected

25

[Keppel] to” were transmitted to eight other law enforcement agencies. (Doc. 15 at □□□
34, 39.) But Keppel does not allege why these Internal Affairs Complaints were transmitted

to the eight police departments that he lists, he does not allege that he will apply to more
police departments and that Defendants will continue to send the Internal Affairs
Complaints, and does not otherwise allege facts that make it plausible that this “pattern”
will continue into the future.
Nor does Keppel allege any facts that allow the Court to reasonably infer that the
Defendants’ acts threatened repetition as to other victims. Keppel alleges that the
Defendants targeted him “and others” when they “would not exhibit undying loyalty to all
operational demands the Defendants placed” on them. (Id. at 4 15.) But this is a conclusory
statement not entitled to be presumed true. Iqbal, 556 U.S. at 681. And even if the
allegation were entitled to the presumption of truth, Keppel still fails to allege how the
Defendants acts of targeting others who opposed their operational demands threatened
future acts of racketeering. See Jackson, 372 F.3d at 1267.
3. Keppel fails to allege that his injury was caused by the
Defendants’ pattern of criminal activity.
Keppel alleges two injuries in his Amended Complaint: his employment with the
Pasco County Sheriffs Office was terminated and he was unable to acquire new
employment with other police departments. (Doc. 23 at 5 (citing Doc. 15 at 4 22).) He
alleges the third Internal Affairs Complaint “resulted in him being fired” and that he was

26

“denied employment due to the . . . false Internal Affairs Complaints.” (Doc. 15 at 4 32,
34.) In alleging he was denied employment due to the Internal Affairs Complaints, Keppel
alleges that the Defendants’ pattern of racketeering activity caused these losses.
To sufficiently allege a civil RICO claim, a plaintiff must allege that he was “injured
in his business or property by reason of a violation of section 1962” of the federal RICO

statute. 18 U.S.C. § 1964(c). To show that he was injured “by reason of a violation of

section 1962,” a plaintiff must “plead facts sufficient to give rise to a reasonable inference
that the claimed racketeering activity . . . was the but-for and proximate cause of the
plaintiffs’ injuries.” Ray v. Spirit Airlines, Inc., 836 F.3d 1340, 1349 (11th Cir. 2016)
(citation omitted). Proximate causation requires that there be “some direct relation’
between the conduct and the injury to sustain a claim.” Id. (quoting Williams v. Mohawk
Indus., Inc., 465 F.3d 1277, 1287-88 (11th Cir. 2006), abrogated on other grounds as
recognized in Simpson v. Sanderson Farms, Inc., 744. F.3d 702, 714-15 (11th Cir. 2014)).
Assuming Keppel had sufficiently alleged the predicate acts of mail and wire fraud—
the closest predicate acts Keppel comes to alleging—Keppel’s Amended Complaint fails to
provide any facts supporting an inference that the Defendants’ predicate acts were the but-
for and proximate cause of his termination from the Pasco County Sheriffs Office or

rejection from the other police departments. To start, absent some unpleaded allegation,
the Court is unable to see how the other police departments receiving through the mails or

27

wires the Internal Affairs Complaints from the Pasco County Sheriff's Office caused the
Pasco County Sheriffs Office to terminate Keppel’s employment.
Further, Keppel’s complaint fails to provide sufficient factual allegations that his

rejection from the other police departments would not have happened but for those police
departments receiving the Internal Affairs Complaints, not to mention what the “direct
relation” was between his rejection and the Defendants using the mail or wires to send the
Internal Affairs Complaints. The closest Keppel comes to a factual allegation is claiming
that he was “denied employment due to” the Internal Affairs Complaints. (Doc. 15 at 4 34
(emphasis added).) This is merely a conclusory allegation “not entitled to be assumed true.”
Iqbal, 556 U.S. at 681.
And, looking elsewhere in the Amended Complaint, the Court is unable to
plausibly infer from the other allegations that his rejections were directly related to the
Internal Affairs Complaints or even a but-for cause of the rejections. In his Amended
Complaint, Keppel explains that his rejections were caused by both the Internal Affairs
Complaints and by “negative references” provided from the Sheriffs Office’s Human
Resources. (Doc. 15 at § 34.) Keppel does not allege how these references were given, but,
because Keppel alleges he was denied employment from these other law enforcement

agencies because of both the Internal Affairs Complaints and the negative references, the
Court infers that the references included more than the Human Resources department

28

sending the written Internal Affairs Complaints to the other police departments. And if
he was rejected at least in part because of the negative references provided by the Human
Resources department, then the Human Resources references might have been enough to

cause the police departments to deny Keppel employment, undermining the Court’s ability
to infer that the Internal Affairs Complaints were the but-for and proximate cause of his
rejection.” And finally, employment decisions are often based on a variety of factors—the

mere fact that the police departments received negative information about Keppel from the
Pasco County Sheriffs Office does not mean they rejected his application because of it.
The Court is not provided with any factual allegations by Keppel to support his conclusory
allegation, and the Court will not speculate in the absence of factual allegations.
Further, Keppel fails to sufficiently allege that any future harm from threatened mail

or wire fraud from the Defendants will cause him harm. As discussed above, Keppel never
alleges that he will apply to police departments in the future, only that he did so in the past.
(Doc. 15 at § 34.) And because Keppel fails to sufficiently allege that the Defendants’ past

” Keppel alleges that his rejection from the other police departments was also due to “negative references
provided from [the] Pasco [County] Sheriffs Office[’]s Human Resources,” (Doc. 15 at 434), but he
alleges no predicate act based on such negative references. He alleges violations of 18 U.S.C. § 1343, but
only insofar as the wires were used to transmit the “false and fraudulent Internal Affairs Complaints.” (Doc.
15 at ¥ 39.) His allegation that the Defendants violated the wire fraud statute when they transmitted the
“false and fraudulent Internal Affairs Complaints” cannot be plausibly construed by the Court to refer to
his earlier allegation that the Human Resources gave negative references to the other police departments.
The references may have been based on the Internal Affairs Complaints, but references do not “transmit[]”
the complaints. As the Human Resources references did not constitute a predicate act, they cannot give rise
to liability as a but-for or proximate cause of Keppel’s rejection from other police departments.
29

racketeering activities caused his rejection from the other police departments, the Court is
likewise unable to “draw the reasonable inference” that future transmissions of the Internal
Affairs Complaints by the Defendants to law enforcement agencies that Keppel applies to

in the future will be the cause of any denial of employment from those agencies. Iqbal, 556
U.S. at 678 (citation omitted).
4. Federal RICO Claim Conclusion
Keppel fails to allege any predicate acts under 18 U.S.C. § 1961(1). Failing to
sufficiently allege any predicate acts, Keppel also fails to allege that the Defendants engaged
in a pattern of racketeering activity. And lacking either predicate acts or a pattern of
predicate acts, Keppel fails to allege any pattern of racketeering that caused his injuries.
Keppel’s federal civil RICO claim fails.

iii. State RICO Claim
Keppel also alleges that Defendants violated Florida’s RICO statute. But in
pleading his state law claim, Keppel cites only to section 895.02(8)(b) of the Florida
Statutes—the Florida criminal RICO statute. Not only is this state law claim insufficiently
pleaded, section 895.05(6) limits the relief available for a private person to injunctive relief.
See Johnson Enters. of Jacksonville, Inc. v. FPL Grp., Inc., 162 F.3d 1290, 1302 n.18
(11th Cir. 1998) (explaining that section 895.05(6) of the Florida criminal RICO statute
“allows a private plaintiff to bring a civil suit for equitable relief only”). Florida courts have

30

interpreted 895.05(6) to permit both preliminary and permanent injunctions under certain
conditions. See Banco Indus. de Venezuela, C.A. v. Mederos Suarez, 541 So. 2d 1324,
1326 (Fla. 3d DCA 1989). Although Keppel argues in his response to Defendants’ motion

to dismiss that “[t]he injunctive relief requested under [Florida law] is the correction of the
false Internal Affairs reports that continue to damage [Keppel] by damaging his reputation
and ability to find a job in law enforcement” and that he does not seek an injunction based

on “employment practices,” (Doc. 23 at 4), this argument fails. Federal Rule of Civil
Procedure 8(a)(3) requires that a plaintiff plead a “demand for the relief sought.” But
Keppel does not mention injunctive relief anywhere in his Amended Complaint. (See Doc.
15).
Even if Keppel had requested injunctive relief, his Florida criminal RICO claim
would also fail. Section 895.05(6) permits an injured party to bring a suit pursuant to

section 895.05(1), which in turn permits injunctions of violations of provisions of section
895.03 of the Florida Statutes. Section 895.03 prohibits employees or associates of an

enterprise to conduct the enterprise through a pattern of racketeering activity. Keppel
alleges that the Defendants engaged in racketeering activity under section 895.02(8)(b),
(Doc. 15 at □ 40), which defines racketeering activity as conduct defined as “racketeering
activity” under 18 U.S.C. § 1961(1). As discussed above, Keppel does not sufficiently allege
any predicate acts under § 1961(1). Further, “Florida’s RICO statutes have consistently

31

been interpreted using federal RICO claims cases.” All Care Nursing Serv., Inc. v. High
Tech Stafting Servs., Inc., 135 F.3d 740, 745 (11th Cir. 1998). The federal standard for
showing a pattern of racketeering—namely, through showing continuity—has been
expressly relied on in Florida courts applying the Florida criminal RICO statute. See State

v. Lucas, 600 So. 2d 1093, 1094 (Fla. 1992) (adopting the federal standard for continuity);
Lugo v. State, 845 So. 2d 74, 99 (Fla. 2003). Thus, because Keppel fails to sufficiently
allege either a closed- or open-ended pattern of predicate acts for purposes of his federal
RICO claim, he also fails to sufficiently allege a pattern of predicate acts for his Florida
RICO claim.

iv. Constitutional Claims
A generous reading of the Amended Complaint reveals allegations of violations of
Keppel’s constitutional rights under the First, Fifth, and Fourteenth Amendments."° (Doc.
15 at 44 41-46.) But because Keppel does not sufficiently state a claim upon which relief

At the beginning of his Amended Complaint, Keppel explains that this action arises under the “Fourth,
Fifth, and Fourteenth Amendment|[s] to the United States Constitution” and in Count IJ, he mentions the
First, Fifth and Fourteenth Amendments. (Doc. 15 at J 2, 41-46.) No Fourth Amendment violation is
pleaded in Count II, so the Court assumes it was an error. As for the Fifth and Fourteenth Amendment
claims, Keppel provides only conclusory statements and wholly fails to support his conclusions with factual
allegations. In the penultimate paragraph of Count II of his Amended Complaint, Keppel states that
Defendants, in their official capacities, “denie|d Keppel] equal protection of the law in that the Defendants’
conduct was arbitrary, oppressive and capricious and unreasonably required [Keppel] to submit to controls
not imposed on other similarly situated Sheriff's Deputies” and “constitute[d] an unlawful and unauthorized
taking of |[Keppel’s] job via forced resignation, his ‘private property,’ without just compensation, without
due process of law, and without a public purpose, in violation of the [Fifth] Amendment.” (Id. at ¥ 45.)
And “[w]hile legal conclusions can provide the framework of a complaint, they must be supported by factual
allegations.” Ashcroft, 556 U.S. at 679.
32

can be granted, his constitutional claims fail. Specifically, as Defendants argue, “Keppel’s
Amended Complaint fails to allege how his constitutional rights were infringed/implicated
by Defendants’ alleged conduct.” (Doc. 19 at 21.)
As for the First Amendment claim, Keppel alleges that “Defendants, in their official

capacities, punished [Keppel] for exercising his First Amendment rights.” (Doc. 15 at
43.) In his response to the Defendants’ motion to dismiss, Keppel argues that he
exercised his First Amendment rights when he directed his deputies not to participate in
the ILP program and when he complained about his supervisors on social media. (Doc. 23

at 14.) Keppel fails to state a First Amendment claim premised on either of these

statements because the directive to his deputies not to participate in the ILP program was

not protected under the First Amendment and his complaint against his supervisors was

not punished pursuant to a policy or custom, as required for municipal liability.
First, Keppel alleges he “instructed his deputies to ignore the directive of the
Intelligence Led Policing [program] to harass alleged prolific offenders.” (Doc. 15 at 4 24.)
Because Keppel was giving a directive to “his deputies,” Keppel alleges that he was, at that

time, an employee of the Pasco County Sheriffs Office. As a public employee, Keppel has
the right, “in certain circumstances, to speak as a citizen addressing matters of public
concern.” Garcetti v. Ceballos, 547 U.S. 410, 417 (2006). To determine if a public
employee’s speech is protected under the First Amendment, a court must first determine

33

“whether the employee spoke as a citizen on a matter of public concern,” and if yes, then
the court must determine “whether the relevant government entity had an adequate
justification for treating the employee differently from any other member of the general
public.” Id. at 418 (citation omitted). “[W]hen public employees make statements pursuant
to their official duties, the employees are not speaking as citizens for First Amendment

purposes, and the Constitution does not insulate their communications from employer
discipline.” Id. at 421. Determining whether an employee made a statement pursuant to
the employee’s official duties is a practical one. See id. at 424. In making this practical
determination, a court should look at, among other considerations, whether the employee
was “(1) speaking with the objective of advancing official duties; (2) harnessing workplace

resources; (3) projecting official authority; (4) heeding official directives; and (5) observing
formal workplace hierarchies.” Fernandez v. Sch. Bd. of Miami-Dade Cty., Fla., 898 F.3d
1324, 1332 (11th Cir. 2018).
Here, the Court has little difficulty determining that Keppel directed his deputies
to ignore the ILP program “pursuant to [his] official duties.” Garcetti, 547 U.S. at 421.
Keppel alleges he was an employee of the Pasco County Sheriff's Office and, in alleging he

gave a directive to his deputies, (Doc. 15 at 4 24), implies that he was a supervisor. And
because Keppel implies he was a supervisor, he also implies that his duties were to oversee
the police work of his subordinates. Thus, when Keppel directed his deputies to ignore a

34

workplace policy, he gave a “directive” as a supervisor to subordinates, “projectled] official
authority” and “observ[ed] formal workplace hierarchies.” Fernandez, 898 F.3d at 1332.
Moreover, he “harness[ed] workplace resources” insofar as he redirected the resources of
the Sheriff's Office away from implementing the ILP program and toward other policing
practices. Id. When Keppel directed his subordinates to ignore the ILP policy, he was

acting pursuant to his official duties and such speech receives no First Amendment

protection. See Garcetti, 547 U.S. at 421.
Keppel also argues in his response to the Defendants’ motion to dismiss that he was
punished for exercising his First Amendment rights when he “shared his frustrations about
his supervisors on his social media account without naming any party involved.” (Doc. 23

at 14.) But Keppel fails to allege or provide facts to support any theory of municipal liability
for this “punishment.” (See Doc. 15 at 41-46.) “A suit against a municipal officer in his
official capacity is effectively a suit against the government entity that the officer
represents.” Lopez v. Gibson, 770 F. App’x 982, 991 (11th Cir. 2019). Thus, a suit against
Defendant Nocco is effectively an action against the governmental entity that Defendant
Nocco represents—here, Pasco County. Id.; Cook ex rel. Estate of Tessier v. Sheriff of
Monroe Cuty., Fla., 402 F.3d 1092, 1115 (11th Cir. 2005). An official policy or custom

can manifest in several ways. For example, municipal liability may be premised on a single
illegal act by a municipal officer—but only “when the challenged act may fairly be said to

35

represent official policy, such as when that municipal officer possesses final policymaking
authority over the relevant subject matter.” Lopez, 770 F. App’x at 991 (quotation
omitted). And municipal liability exists only when there is a “direct causal link between a
municipal policy or custom and the alleged constitutional deprivation.” Cook ex rel. Estate
of Tessier, 402 F.3d at 1116 (quoting City of Canton v. Harris, 489 U.S. 378, 385 (1989);

see Lopez, 770 F. App’x at 991.
Although Keppel argues that retaliating against employees for exercising their First
Amendment rights is “the policy and custom of the Sheriffs Office,” (Doc. 23 at 14), he
does not identify in his Amended Complaint any factual allegations to support such a
conclusory statement. His Amended Complaint is filled with cursory allegations that the
Defendants retaliate against those who do not cooperate with the ILP program or who are

not loyal to the “operational demands” of the Defendants. (Doc. 15 at 44 15, 21, 22.) But
the Amended Complaint does not allege anywhere that the Defendants had a practice or

custom of retaliating against employees for speech unrelated to the ILP program. And the
speech Keppel alleges he engaged in on Facebook was discussing harassment from his

supervisors for doing “too much” by performing traffic stops and “back[ing] up his
[djeputies.” (Id. at J 24.) If either of these are related to the ILP program, Keppel does not
allege how. And in his response to the Defendants’ motion to dismiss, Keppel does not
allege any connection between the Facebook post and the ILP program, further

36

undermining any inference that the Facebook post was related to the program. (See Doc.

23 at 14.)
Because Keppel alleges only speech that was pursuant to his official duties and
speech that was not subject to an alleged practice and custom of retaliation, Keppel’s First
Amendment claim fails."
V. Conclusion
In total between the Squitieri litigation and here, Keppel has filed five complaints.
And after quintuple chances, his Amended Complaint remains deficient and warrants
dismissal for failure to state a claim upon which relief may be granted. Keppel received

more than fair notice of his pleading defects yet rebuffed all warnings to remedy them.

"| Keppel also alleges that the Defendants violated his right to free speech as guaranteed by the Florida
Constitution. (Doc. 15 at 445.) “Pursuant to the Eleventh Amendment [of the United States
Constitution], a state may not be sued in federal court unless it waives its sovereign immunity or its
immunity is abrogated by an act of Congress under section 5 of the Fourteenth Amendment.” Grizzle v.
Kemp, 634 F.3d 1314, 1319 (11th Cir. 2011) (citing Kimel v. Florida Bd. of Regents, 528 U.S. 62 (2000)).
“In order to constitute waiver of Eleventh Amendment immunity from suit in federal court, however, a
state statute must employ language that is either explicit or else admits of no other reasonable
interpretation.” Schopler v. Bliss, 903 F.2d 1373, 1379 (11th Cir. 1990) (citations omitted). Keppel has not
identified any statute that waives Florida’s sovereign immunity for suits for damages brought in federal
court on the basis of state constitutional violations. And Keppel would likely not be able to identify any.
The Florida Supreme Court has previously noted that Florida is not exempt from “a challenge based on
violation of the federal or state constitutions,” Dep’t of Revenue v. Kuhnlein, 646 So. 2d 717, 721 (Fla.
1994), as clarified (Nov. 30, 1994); but that case addressed a claim in Florida court and did not discuss
Florida’s immunity from suit in federal court on the basis of state constitutional violations. Because a “State
does not waive its Eleventh Amendment immunity by consenting to suit only in its own courts,” Port Auth.
Trans-Hudson Corp. v. Feeney, 495 U.S. 299, 306 (1990), the waiver identified in Kuhnlein is insufficient
to waive Florida’s immunity from suit in federal court. See also Support Working Animals, Inc. v. DeSantis,
457 F. Supp. 3d 1193, 1208 (N.D. Fla. 2020) (noting that the plaintiffs failed to establish that Florida
waived Eleventh Amendment immunity to federal suits based on violations of the state constitution). This
Court has not identified any proper waiver of Florida’s Eleventh Amendment immunity against suits for
damages in federal court based on state constitutional violations. Keppel’s state constitutional claim fails.
37

Accordingly, the Court dismisses this case with prejudice. See Vibe Micro, Inc. v.
Shabanets, 878 F.3d 1291, 1296 (11th Cir. 2018); Jackson v. Bank of Am., N.A., 898 F.3d
1348, 1358 (11th Cir. 2018); Cornelius v. Bank of Am., NA, 585 F. App’x 996, 1000 (11th
Cir. 2014).
Accordingly, it is ORDERED:
(1) Defendants’ motion to dismiss Keppel’s Amended Complaint is GRANTED.
(Doc. 19.)
(2) The Court DISMISSES WITH PREJUDICE Keppel’s Amended Complaint
(Doc. 15) and DISMISSES THIS ACTION.
(3) The Clerk is directed to enter judgment in favor of Defendants, terminate any
pending motions and deadlines, and to close the case.
ORDERED in Tampa, Florida, on September 24, 2021.

father rep Ramla Mryelle
athryn’ Kimball Mizelle
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10642113. Public record. Not legal advice.