Deppe v. Sovinski

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

ORLANDO DIVISION

DENNIS G. DEPPE,

Plaintiff,

v. Case No: 6:23-cv-1484-JSS-UAM

SANDRA M. SOVINSKI and

SVETLANA S. SHTROM,

Defendants.

___________________________________/

ORDER

Defendants, Sandra M. Sovinski and Svetlana S. Shtrom, move to dismiss

Plaintiff’s second amended complaint. (Dkt. 103.) Plaintiff, Dr. Dennis G. Deppe,

proceeding pro se, opposes the motion. (Dkt. 109.) Upon consideration, for the

reasons outlined below, the motion is granted in part and denied in part.

BACKGROUND1

Plaintiff is a scientist and entrepreneur with decades of experience “in

research, . . . patenting inventions, and technology start-ups” who was previously

employed as a faculty member at the University of Central Florida (UCF). (Dkt. 96

at 2–5.) One of his inventions, the oxide vertical-cavity surface-emitting laser

(VCSEL), has been found to have a myriad of technological applications. (Id. at 3.) It

1 The court accepts the well-pleaded factual allegations in the complaint as true and construes them in

the light most favorable to Plaintiff. See Harry v. Marchant, 291 F.3d 767, 769 (11th Cir. 2002) (en

banc).

“is now produced in many countries and in 2021 had a global market of $1.5[ billion].”

(Id.) While the Defense Advanced Research Projects Agency (DARPA) sought to

“replace the oxide VCSEL” with “even smaller laser devices,” Plaintiff started his own

company, sdPhotonics LLC, through which he “develop[ed] an improved

replacement for the . . . oxide VCSEL,” the oxide-free VCSEL, which Plaintiff

explains is a substantial refinement of his earlier design. (Id. at 4.)

To develop the oxide-free VCSEL, Plaintiff leased laboratory space from UCF

as part of its “[p]hotonics [i]ncubator.” (Id. at 5, 22.) During this time, Plaintiff “began

presenting and publishing research findings that contradicted . . . large research

programs that DARPA had funded with . . . universities and defense industries.” (Id.

at 21.) Dean Bahaa Saleh, a “UCF administrator” who ran the incubator, asked

Plaintiff to stop presenting these findings “because it was angering other professors

Dean Saleh oversaw at UCF.” (Id. at 22.) Plaintiff refused, explaining to Dean Saleh

that the research he was contradicting “was based on flawed science . . . and that the

authors were misrepresenting the science.” (Id.) Plaintiff’s refusal “angered Dean

Saleh” and directly prompted Sovinski to “cancel[]” an eighteen-month lease Plaintiff

had entered into for lab space in October 2018 and to “tr[y] to evict Plaintiff’s company

from its leased space” in January 2019. (Id. at 24–25, 48.)

Plaintiff claims that while he was working to develop the oxide-free VCSEL,

the military and several universities, including UCF, sought “to take over” that

technology. (Id. at 4–5.) Plaintiff alleges that Defendants were involved in this

scheme. At all times relevant to this lawsuit, Sovinski was UCF’s Deputy General

Counsel for Research, and Shtrom was UCF’s Director of the Office of Technology

Transfer (OTT). (Id. at 8–9.) According to Plaintiff, Defendants knew that

sdPhotonics shared ownership of certain patents related to Plaintiff’s VCSEL

technology with UCF, (see Dkt. 96-11), but nevertheless filed false documents with the

United States Patent and Trademark Office (USPTO) claiming that UCF was the

exclusive owner of these patents, (see, e.g., Dkts. 96-12, 96-14).

Plaintiff concedes that as a condition of his employment with UCF, he executed

an Intellectual Property Agreement that granted UCF title to inventions “in the field

or discipline in which [he] [was] employed by [UCF]” or which were “made with the

use of [UCF’s] [s]upport.” (Dkt. 96-4.) This agreement also “assign[ed] to

[UCF] . . . any and all rights in such [i]nventions that [we]re invented and/or

conceived at any time during” Plaintiff’s employment with UCF. (Id.) However, UCF

Regulation 2.029(4)(d) states that if UCF “asserts its rights in [an] [i]nvention,” it will

bear “all costs and expense of patenting” the invention. (Dkt. 96-3 at 8.) In light of

evidence that he split the costs with UCF to patent some of his inventions, (see Dkt.

96-7), Plaintiff claims that he is a co-owner of these patents, and thus, Defendants’

filings with the USPTO, made under oath, are false and constitute perjury, (Dkt. 96 at

9–20).

Around September 2019, Plaintiff contacted UCF and Sovinski after

discovering the filings, and neither denied that the filings “contain[ed] false

statements.” (Id. at 27.) Sovinski and her supervisor, Youndy C. Cook, “informed . . .

Plaintiff that UCF wished to resolve the matter” and “proposed . . . formally

assign[ing] any remaining UCF . . . ownership rights to sdPhotonics.” (Id. at 27–28.)

However, Sovinski and Shtrom then began to file more false documents with the

USPTO. (Id. at 29–30.) Plaintiff alleges that he was presented with two “fraudulent”

agreements “designed to transfer ownership of [sdPhotonics]’s intellectual property to

UCF” and that he was then threatened to sign the agreements “or else.” (Id. at 30.) It

was at this point that Plaintiff claims he began to be stalked by the United States

government. (Id. at 31.) In Plaintiff’s words, he

apparently “stepped into” organized crime operating within

the [United States] and state governments . . . by correcting

the science at DARPA and from the universities that

brought forth retaliation[] and by making high value oxide

and oxide-free VCSEL inventions that the military and

universities were apparently able to “sell” to elected officials

alleged to be operating organized crime within the [United

States] and state governments of at least Florida, Illinois[,]

and Texas.

(Id. at 39–40.) Plaintiff asserts that he is being “assault[ed]” and “intensely stalked

with . . . high-power RF [(radio frequency)] directed energy transmitters and other

physical endangerments.” (Dkt. 41-1 at 5.) Allegedly, he has been driven from his

home due to the high-power RF being “beamed onto it” and has been forced to stay

at various hotels. (Dkt. 91-1 at 2.) Because his symptoms, which include “ear-ringing

or ear-whistling[ and] headaches,” persist, Plaintiff postulates that RF is being

“continuously shot . . . through the walls, ceiling[s,] or floor[s] of adjacent hotel

rooms.” (Id. at 3.) He also claims that contact poisons are being “placed in [his]

bedding.” (Id.)

On August 2, 2023, Plaintiff filed his original complaint, which was dismissed

without prejudice as a shotgun pleading. (Dkts. 1, 4.) He then filed an amended

complaint before the court granted his motion to file the operative second amended

complaint. (Dkts. 10, 37, 93.) Plaintiff filed the second amended complaint on July

1, 2024. (Dkt. 96.) In it, he raises seven counts. Counts I through V are claims of

constitutional violations brought under 42 U.S.C. § 1983. Specifically, Plaintiff raises

two First Amendment retaliation claims (Counts I and II), two procedural due process

claims (Counts III and IV), and a takings claim (Count V). (Id. at 40–68.) Counts VI

and VII are Florida law claims for Defendants’ tortious interference with Plaintiff’s

business relationship with sdPhotonics. (Id. at 68–74.) Each of the seven counts is

brought against both Defendants, except for Count II, which is raised solely against

Sovinski. (Id. at 40–74.) As relief, Plaintiff seeks compensatory and punitive damages,

legal fees, and a declaration “attesting to Defendants’ improper filing of retroactive

ownership documents on Plaintiff’s oxide-free VCSEL inventions.” (Id. at 74–77.)

APPLICABLE STANDARDS

In deciding a motion to dismiss for failure to state a claim, a court “accept[s]

the allegations in the complaint as true and construe[s] them in the light most favorable

to the plaintiff.” Henley v. Payne, 945 F.3d 1320, 1326 (11th Cir. 2019). “To survive a

motion to dismiss, a complaint must contain sufficient factual matter, accepted as true,

to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662,

678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has

facial plausibility when the plaintiff pleads factual content that allows the court to draw

the reasonable inference that the defendant is liable for the misconduct alleged.” Id.

“[D]etailed factual allegations” are generally not required, but “[a] pleading that offers

‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action

will not do.’” Id. (quoting Twombly, 550 U.S. at 555).

Although courts “give liberal construction” to documents filed by pro se

plaintiffs, Albra v. Advan, Inc., 490 F.3d 826, 829 (11th Cir. 2007), pro se plaintiffs are

still “required . . . to conform to procedural rules,” Loren v. Sasser, 309 F.3d 1296, 1304

(11th Cir. 2002). See Cummings v. Dep’t of Corr., 757 F.3d 1228, 1234 n.10 (11th Cir.

2014) (“The right of self-representation does not exempt a party from compliance with

relevant rules of procedural and substantive law.” (quoting Birl v. Estelle, 660 F.2d 592,

593 (5th Cir. 1981))).

ANALYSIS

Defendants argue that Counts I through V must be dismissed with prejudice

because Defendants are entitled to qualified immunity. (Dkt. 103 at 4–19.) They also

argue that Counts I and II are barred by the statute of limitations. (Id. at 12–16.)

Because the court agrees that Defendants are entitled to qualified immunity, it does

not reach Defendants’ argument that Counts I and II are time-barred. See also

My24HourNews.com, Inc. v. AT&T Corp., 791 F. App’x 788, 798 (11th Cir. 2019) (“A

statute of limitations bar is an affirmative defense, and plaintiffs are not required to

negate an affirmative defense in their complaint. As a result, a dismissal for failure to

state a claim on statute of limitations grounds is appropriate only if it is apparent from

the face of the complaint that the claim is time-barred.” (cleaned up)); accord United

States ex rel. Hunt v. Cochise Consultancy, Inc., 887 F.3d 1081, 1085 (11th Cir. 2018).

Because the court finds that Plaintiff’s federal claims are due to be denied with

prejudice, the court declines to exercise supplemental jurisdiction over his two

remaining state law claims.

A. Qualified Immunity

Defendants maintain that as employees of UCF, a public university, they are

entitled to qualified immunity as to Plaintiff’s section 1983 claims.2 (Id. at 4–19.)

“Qualified immunity shields government officials from liability for civil damages

insofar as their conduct does not violate clearly established statutory or constitutional

rights of which a reasonable person would have known.” Carruth v. Bentley, 942 F.3d

1047, 1053 (11th Cir. 2019) (quotation omitted). “The purpose of this immunity is to

allow government officials to carry out their discretionary duties without fear of

personal liability or harassing litigation, protecting from suit all but the plainly

incompetent or one who is knowingly violating the federal law.” Lee v. Ferraro, 284

2 The parties do not dispute that Defendants are state employees who acted under color of state law at

all times relevant to this matter. (See Dkt. 96 at 8–9; Dkt. 103 at 8–9.) See Rusovici v. Univ. of Cent. Fla.

Bd. of Trs., No. 6:22-cv-2172-ACC-EJK, 2023 WL 9190224, at *5 (M.D. Fla. Dec. 9, 2023) (“Associate

Dean Verduin argues that she was acting within the scope of her discretionary authority in denying

Plaintiff's request for an ‘informal hearing.’ Plaintiff does not dispute this; he alleges that Verduin is

employed by UCF, and her ‘actions and omissions’ were undertaken within the scope of her

employment with UCF. Because Verduin was acting within the scope of her discretionary authority

as an associate dean when she denied Plaintiff's request, the burden shifts to Plaintiff to show that

Verduin violated a ‘clearly established’ constitutional right.” (internal citation omitted)); Harris v. Dist.

Bd. of Trs. of Polk Cmty. Coll., 9 F. Supp. 2d 1319, 1324 (M.D. Fla. 1998) (“[The] plaintiffs allege that

[the defendant] was acting in her official capacity as President of [a state community

college]. . . . There is no dispute between the parties that [the defendant] was acting under the color

of state law. Therefore the [c]ourt finds that [the] plaintiffs have sufficiently alleged that [the

defendant] was acting under the color of state law at the time of the alleged actions.”).

F.3d 1188, 1194 (11th Cir. 2002) (quotation omitted), overruled in part on other grounds

by Pearson v. Callahan, 555 U.S. 223 (2009); accord Carruth, 942 F.3d at 1054. “To

invoke the defense of qualified immunity, a government official must have been acting

within the scope of his ‘discretionary authority’ when the allegedly wrongful acts

occurred.” Spencer v. Benison, 5 F.4th 1222, 1230 (11th Cir. 2021). “After a

government official establishes that he was acting within the scope of his discretionary

authority, the burden shifts to the plaintiff to show that the official’s conduct (1)

violated federal law (2) that was clearly established at the relevant time.” Id.

1. Scope of Defendants’ Discretionary Authority

To prove that they were acting within the scope of their discretionary authority,

Defendants were required to show that they acted (1) “pursuant to the performance of

[their] duties” and (2) “within the scope of [their] authority.” Id. That is, they were

required to show that they were “performing a legitimate job-related

function . . . through means that were within [their] power to utilize.” Id. at 1230–31.

“In applying each prong of this test, [the court] look[s] 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.” Est. of Cummings v.

Davenport, 906 F.3d 934, 940 (11th Cir. 2018) (quoting Mikko v. City of Atlanta, 857

F.3d 1136, 1144 (11th Cir. 2017)). “[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.” Harbert Int’l, Inc. v. James, 157 F.3d

1271, 1282 (11th Cir. 1998) (quotation omitted). The discretionary authority

requirement “is not difficult to satisfy.” Marbut v. Phillips, No. 1:22-cv-00776-VMC,

2024 WL 4579911, at *7 (N.D. Ga. Sept. 30, 2024) (citing Hinson v. Bias, 927 F.3d

1103, 1116 (11th Cir. 2019)).

Plaintiff contests Defendants’ entitlement to qualified immunity solely on the

basis that they acted “far outside the perimeter of their discretionary authorit[y].”3

(Dkt. 109 at 7; see Dkt. 96 passim.) He contends that Defendants’ actions violated

UCF’s regulations “and other agreements” and were therefore “outside the scope of

their discretionary job duties.” (Dkt. 96 at 41; accord id. at 47, 51, 53, 57, 59.) This

argument misses the mark. “[A]t this stage in the analysis, [the court] temporarily

put[s] aside the fact that [the official’s actions] may have been committed for an

unconstitutional purpose, in an unconstitutional manner, to an unconstitutional

extent, or under constitutionally inappropriate circumstances.” Carruth, 942 F.3d at

1055 (quotation omitted). This analysis requires the court to “strip out the allegedly

illegal conduct.” Spencer, 5 F.4th at 1231; see Harbert Int’l, 157 F.3d at 1282 (“The

inquiry is not whether it was within the defendant’s authority to commit the allegedly

illegal act. Framed that way, the inquiry is no more than an ‘untenable’ tautology.’”);

3 Plaintiff also emphasizes that Defendants’ actions were with regard to their “ministerial duties.” (See

Dkt. 109 at 5–7.) To the extent he believes that qualified immunity does not extend to ministerial

duties, Plaintiff is mistaken. See Holloman ex rel. Holloman v. Harland, 370 F.3d 1252, 1265 (11th Cir.

2004) (“In the qualified immunity context . . . we appear to have abandoned th[e] discretionary

function/ministerial task dichotomy. . . . [F]or purposes of qualified immunity, a governmental actor

engaged in purely ministerial activities can nevertheless be performing a discretionary function.”

(quotation omitted)).

Carruth, 942 F.3d at 1055 (“A plaintiff cannot plead around qualified immunity simply

by saying that the official was animated by an unlawful purpose. The exception would

swallow the rule.”).

Once these allegations are removed, the court is left only with Plaintiff’s

allegations that Defendants filed documents with the USPTO on behalf of UCF and

that Sovinksi sought to terminate Plaintiff’s lease with UCF. These purported injuries

fall squarely within the discretionary authority vested in Defendants. See Harbert Int’l,

157 F.3d at 1282 (“The scope of immunity should be determined by the relation of the

[injury] complained of to the duties entrusted to the officer.” (quotation omitted)). As

UCF’s Deputy General Counsel for Research, Sovinski plainly had the requisite

authority to sign filings to the USPTO and to terminate Plaintiff’s lease on behalf of

the University. See About – UCF General Counsel, Univ. of Cent. Fla.,

https://generalcounsel.ucf.edu/about/ (last visited Feb. 18, 2025) (“The chief

responsibility of the General Counsel’s office is to represent the University of Central

Florida . . . in all forms of litigation or legal disputes.”);4 cf. Watson v. Fla. Jud.

Qualifications Comm’n, No. 14-60306-Civ-COOKE/TORRES, 2017 WL 3218163, at

*8 (S.D. Fla. July 28, 2017) (“There is no reason to think that signing an employment

contract is outside the scope of [the defendant]’s authority as General Counsel to the

[Judicial Qualifications Commission].”). Similarly, Shtrom, as Director of the OTT,

4 The court takes judicial notice of UCF’s website. See Fed. R. Evid. 201(b)(2); Mawulawde v. Bd. of

Regents of Univ. Sys. of Ga., No. CV 105-099, 2007 WL 2460774, at *8 n.10 (S.D. Ga. Aug. 24, 2007)

(“The [c]ourt may take judicial notice of the Medical College of Georgia’s website, which constitutes

a matter of public record.” (collecting cases)).

had the authority to sign an assignment of a patent on behalf of the UCF Board of

Trustees. See About the Office of Technology Transfer, Univ. of Cent. Fla.,

https://tt.research.ucf.edu/about-ott/ (last visited Feb. 18, 2025) (“[T]he [OTT] . . . is

responsible for managing the University of Central Florida’s . . . intellectual property

assets . . . .”); see McLaughlin v. Fla. Int’l Univ. Bd. of Trs., 533 F. Supp. 3d 1149, 1176

(S.D. Fla. 2021) (determining that the defendant “was acting within the scope of his

discretionary authority because all the allegations against him relate[d] to him carrying

out his” official duties, which as a professor included “instructing a classroom, grading

exams, and serving on an academic dismissal committee”).

Indeed, as Defendants claim, (Dkt. 103 at 7–8), outside of his allegations that

Defendants were acting contrary to law, Plaintiff essentially concedes that Defendants

were acting within their discretionary authority and pursuant to their roles with UCF.

(See Dkt. 96 at 6 (“[A]s part of UCF’s role in the military’s alleged perjury scheme with

the [USPTO], [Defendants] began filing false documents with the USPTO . . . .”); id.

at 19 (“Sovinski ma[de] her USPTO filing . . . while acting under the color [of] the

authority of her position as UCF’s Deputy General Counsel for Research . . . .”); id.

at 66–67 (“[Defendants] took their actions of their admitted perjury with the USPTO

to obtain exclusive use of the patents and patent applications at issue in this

[c]omplaint for their own UCF use and for military use, and as part of a much larger

bribery scheme involving high ranking [United States] elected and appointed federal

officials.”).)

In sum, the court determines that Defendants’ conduct was at the very least

“within, or reasonably related to, the outer perimeter of [their] . . . discretionary duties.”

Mikko, 857 F.3d at 1144.

2. Whether Qualified Immunity is Appropriate

Because Defendants have successfully demonstrated that they were acting

within the scope of their discretionary authority, Plaintiff bears the burden “to show

that qualified immunity is not appropriate.” Carruth, 942 F.3d at 1054. This burden

requires him to make two showings: (1) “that the defendants violated his constitutional

rights” and (2) “that, at the time of the violation, those rights were clearly

established . . . in light of the specific context of the case, not as a broad general

proposition.” Stalley v. Cumbie, 124 F.4th 1273, 1284 (11th Cir. 2024) (quotation

omitted). Because the court may consider these prongs in either order, it begins with

the clearly-established prong, and because Plaintiff has failed to carry his burden under

this prong, the court does not reach the second. See Gaines v. Wardynski, 871 F.3d

1203, 1208 (11th Cir. 2017) (“[The court] may decide these issues in either order, but,

to survive a qualified-immunity defense, [the plaintiff] must satisfy both showings.”

(quotation omitted)).

a) Clearly Established

A plaintiff in the Eleventh Circuit can satisfy his burden under the clearly-

established prong in three ways:

First, the plaintiff can point to a materially similar case

decided at the time of the relevant conduct by the Supreme

Court, the Eleventh Circuit, or the relevant state supreme

court. This first method looks at the relevant case[]law at

the time of the alleged violation that would have made it

obvious to the officer that his actions violated federal law.

The prior case[]law need not be directly on point, but an

existing precedent must have placed the statutory or

constitutional question beyond debate. Second, the plaintiff

can identify a broader, clearly established principle that

should govern the novel facts of the situation. Third, the

plaintiff can show that the conduct at issue so obviously

violated the Constitution that prior case[]law is

unnecessary. . . . This third method, often referred to as the

“obvious clarity” scenario, is a narrow exception to the

normal rule that only case[]law and specific factual

scenarios can clearly establish a violation.

Stalley, 124 F.4th at 1284 (quotation omitted). Plaintiff has provided no explicit

argument as to this prong; instead, he appears to seek to rebut Defendants’ claims of

qualified immunity solely on the basis that they acted outside of their discretionary

authority. (See Dkt. 96 at 41, 51, 57; Dkt. 109 at 4–11.) While a pro se complaint

should be construed leniently, “this leniency does not give a court license to serve as

de facto counsel for a [pro se] party, or to rewrite an otherwise deficient pleading [by

a pro se litigant] in order to sustain an action.” GJR Invs. v. City of Escambia, 132 F.3d

1359, 1369 (11th Cir. 1998) (internal citation omitted), overruled on other grounds by

Iqbal, 556 U.S. 662. It was Plaintiff’s burden to demonstrate that Defendants violated

clearly established law. Harbert Int’l, 157 F.3d at 1281. In the absence of any argument

as to this point, the court cannot find that Plaintiff has satisfied his burden. See Miarka

v. City of Gulf Shores, No. 17-243-CG-N, 2017 WL 3612867, at *7 (S.D. Ala. July 31,

2017) (“While [the p]laintiff cites the language of the Fourth Amendment and

§ 362(a)(3) [of the United States Bankruptcy Code], [the p]laintiff provides no

reasoning as to how the conduct of the officers in this action is ‘so bad’ that it could

not be lawful.” (quoting Vinyard v. Wilson, 311 F.3d 1340, 1350 (11th Cir. 2002),

abrogated in part on other grounds by Pearson v. Callahan, 555 U.S. 223 (2009))).

To the extent Plaintiff argues that Defendants violated clearly established law

because their actions allegedly ran afoul of UCF regulations and “federal and state

perjury laws,” (Dkt. 96 at 41), this argument is unavailing. Plaintiff specifically points

to UCF regulation 2.029(4)(d), which outlines UCF’s cost-sharing scheme for patent

applications, (see Dkt. 96-3 at 8), and Florida and federal statutes proscribing perjury,

(see Dkt. 109 at 10 (citing Fla. Stat. § 837 and 18 U.S.C. § 1001)). Though Plaintiff

does not address it, caselaw does support the principle that “the words of the pertinent

federal statute or federal constitutional provision . . . [may] be specific enough to

establish clearly the law applicable to particular conduct and circumstances to

overcome qualified immunity, even in the total absence of case[]law.” Vinyard, 311 F.3d

at 1350. “For example, the words of a federal statute or federal constitutional

provision may be so clear and the conduct so bad that case[]law is not needed to

establish that the conduct cannot be lawful.” Id. However, as one example of

“obvious clarity,” id., this principle is a narrow exception to the rule requiring

analogous caselaw to demonstrate that a constitutional violation was clearly

established. See Gaines, 871 F.3d at 1209 (noting that obvious clarity cases “do not

often arise” and collecting cases). Absent argument from Plaintiff, the court discerns

no basis to apply the principle. Moreover, even if Plaintiff had argued this issue, he

has not demonstrated that violation of Florida and federal perjury law “so obviously

violate[s] the constitution that prior case[]law is unnecessary.” Id. (quotation omitted).

Plaintiff cannot carry his burden under the clearly-established prong simply by saying

that Defendants’ conduct violated a clearly established statute—instead, he must show

that violation of the statute clearly violated the constitutional rights under which his

claims arise. See Lewis v. City of W. Palm Beach, 561 F.3d 1288, 1291–92 (11th Cir.

2009) (explaining that a right “may be clearly established for qualified immunity

purposes” if the defendant acted with “conduct so egregious that a constitutional right

was clearly violated” (emphasis added)).

The Supreme Court’s decision in Davis v. Scherer is helpful on this point. There,

the Court declined to adopt a categorical rule advanced by the appellee under which

an official whose “conduct . . . contravene[d] a statute or regulation” would

automatically forfeit the official’s entitlement to qualified immunity. 468 U.S. 183,

193 (1984); see id. (“Appellee urges . . . that a defendant official’s violation of a clear

statute or regulation, although not itself the basis of suit, should deprive the official of

qualified immunity from damages for violation of other statutory or constitutional

provisions.”). The Court held that “[o]fficials sued for constitutional violations do not

lose their qualified immunity merely because their conduct violates some statutory or

administrative provision,” id. at 194, reasoning as follows:

[I]t is an appealing proposition that the violation of

[applicable statutes and regulations] . . . is a circumstance

relevant to the official’s claim of qualified immunity. But

in determining what circumstances a court may consider in

deciding claims of qualified immunity, we choose between

the evils inevitable in any available alternative. Appellee’s

submission, if adopted, would disrupt the balance that our

cases strike between the interests in vindication of citizens’

constitutional rights and in public officials’ effective

performance of their duties. . . . [U]nder appellee’s

submission, officials would be liable in an indeterminate

amount for violation of any constitutional right—one that

was not clearly defined or perhaps not even foreshadowed

at the time of the alleged violation—merely because their

official conduct also violated some statute or regulation,

id. at 195. While the Davis Court acknowledged that “officials may lose their immunity

by violating clearly established statutory . . . rights,” it limited this exception “to the

extent that there is a clear violation of the statutory rights that give rise to the cause of

action.” Id. at 194 n.12 (emphasis added).

Thus, to the extent that Plaintiff looks to UCF’s regulations or to state and

federal perjury statutes to overcome Defendants’ qualified immunity, this effort fails

because he does not show that violation of these statutes constitutes a clearly

established violation of the constitutional provisions under which his federal claims

arise and because his federal claims do not actually arise under those statutes he claims

were violated. Accordingly, even if Plaintiff had raised this argument, it would fail as

a matter of law. See Thomas v. Buckner, No. 2:11-CV-245-WKW, 2011 WL 4071948,

at *9 (M.D. Ala. Sept. 13, 2011) (“Th[e] reasoning [in Davis] solidly forecloses [the

p]laintffs’ clearly established argument, which, in its entirety, is that the alleged federal

constitutional due process right to a hearing is clearly established because a section of

the Alabama Code and various [Department of Human Resources] regulations

potentially require such a hearing under state law. This argument is insufficient as a

matter of law to carry [the p]laintiffs’ burden of demonstrating that the right to a

hearing was clearly established.”); Fernandez-Torres v. Watts, No. 2:16-cv-24, 2017 WL

9485591, at *3 (S.D. Ga. Jan. 30, 2017) (finding unpersuasive the “[p]laintiff[’s]

attempt[] to use various Bureau of Prisons’ Program Statements and federal

regulations as evidence that [his] right [to Santeria beads from an unapproved source]

was clearly established at the time the violations occurred” in light of Davis’s holding

that “officials sued for violation of constitutional rights[] do not forfeit their immunity

by violating some other statute or regulation”).

If instead Plaintiff sought to rely upon the broad principles of law set forth in

his complaint to satisfy his burden on this point, it is well established that such

pronouncements are insufficient. (See, e.g., Dkt. 96 at 40–41 (“A citizen has the right

to be free from governmental action taken to retaliate against the citizen’s exercise of

protected speech, or to deter the citizen from exercising those rights in the future, under

the [First Amendment] . . . .”).) See Harbert Int’l, 157 F.3d at 1284 (“[The plaintiff] has

set forth a general principle of law, but we have held time and again that clearly

established principles of law will seldom if ever suffice to strip a defendant of qualified

immunity.”); Dolihite v. Maughon, 74 F.3d 1027, 1040–41 (11th Cir. 1996) (“A plaintiff

must establish more than broad legal truisms; he or she must demonstrate that the law

fixed the contours of the right so clearly that a reasonable official would have

understood his acts were unlawful.”).

Plaintiff’s only remaining option to satisfy this prong was to adduce caselaw

from the United States Supreme Court, the Eleventh Circuit, or the Florida Supreme

Court “materially similar” to the instant case. Gaines, 871 F.3d at 1209 (quotation

omitted). However, Plaintiff does not cite to any caselaw demonstrating that the

constitutional violations he asserts were clearly established. (See Dkt. 96; Dkt. 109 at

4–11.) While he does cite the Supreme Court’s decisions in Davis and Mikko in his

response to Defendants’ motion, he cites these decisions only to support his argument

that Defendants were acting outside the scope of their discretionary authority. (See

Dkt. 109 at 7–8, 10.) This citation is insufficient to satisfy his burden. See Vielma v.

Gruler, 808 F. App’x 872, 879–80 (11th Cir. 2020) (determining that the plaintiffs had

not demonstrated a clearly established law where they “failed to cite any case

addressing materially similar facts that clearly establishe[d] the existence of the duty

that [the p]laintiffs assign[ed] to [the defendant]”); Puglia v. Nienhuis, No. 8:22-cv-1954-

VMC-CPT, 2023 WL 2743526, at *8 (M.D. Fla. Mar. 31, 2023) (“[The plaintiff] cites

no case[]law at all in his discussion of whether it was clearly established that [the

d]efendants’ actions were unconstitutional. This failure to carry his burden also

supports the grant of qualified immunity for the individual [d]efendants.” (citation

omitted)).

The court thus finds that Plaintiff has not carried his burden to show that the

constitutional rights he claims were violated were clearly established at the time of

Defendants’ actions. Therefore, because Defendants were acting within the scope of

their discretionary authority at all times relevant to Plaintiff’s claims against them, and

because Plaintiff has not borne his burden to show that qualified immunity is

inappropriate here, Defendants are entitled to qualified immunity. Carruth, 942 F.3d

at 1054. Accordingly, Defendants’ motion is granted as to Counts I through V.

B. Supplemental Jurisdiction

Under 28 U.S.C. § 1367(c), a district court has discretion to “decline to exercise

supplemental jurisdiction over a claim . . . if . . . the district court has dismissed all

claims over which it has original jurisdiction.” Because the court has determined that

all of Plaintiff’s claims over which this court has original jurisdiction, Counts I through

V, are due to be dismissed with prejudice, the court declines to continue to exercise

supplemental jurisdiction over Plaintiff’s remaining state law claims, Counts VI and

VII. See Carlsbad Tech., Inc. v. HIF Bio, Inc., 556 U.S. 635, 639 (2009) (“A district court’s

decision whether to exercise [supplemental] jurisdiction after dismissing every claim

over which it had original jurisdiction is purely discretionary.”). Indeed, the Eleventh

Circuit has affirmatively counseled district courts to decline to exercise supplemental

jurisdiction in such situations. See Silas v. Sheriff of Broward Cnty., 55 F.4th 863, 866

(11th Cir. 2022) (“Although the district court has discretion, concerns of federalism—

namely, of federal courts of limited jurisdiction weighing in on state law—counsel in

favor of dismissing state[ ]law claims after the federal claims are dismissed.”); Raney

v. Allstate Ins. Co., 370 F.3d 1086, 1089 (11th Cir. 2004) (“We have encouraged district

courts to dismiss any remaining state claims when, as here, the federal claims have

been dismissed prior to trial.”).

Accordingly, Counts VI and VII are due to be dismissed without prejudice. This

dismissal should not work to Plaintiff’s disadvantage should he elect to bring Counts

VI and VII in state court because the period of limitations for any of these claims is

tolled during the pendency of this action. See 28 U.S.C. § 1367(d).

CONCLUSION

Accordingly:

1. Defendants’ Amended Joint Motion to Dismiss Plaintiff's Second Amended

Complaint (Dkt. 103) is GRANTED in part and DENIED in part.

2. Counts I, II, III, IV, and V of Plaintiffs Second Amended Complaint are

DISMISSED with prejudice.

3. Counts VI and VII of Plaintiffs Second Amended Complaint are

DISMISSED without prejudice under 28 U.S.C. § 1367(c)(3).

4. The Clerk is DIRECTED to enter judgment in favor of Defendants as to

Counts I, II, U1, IV, and V, to terminate any pending deadlines and motions,

and to close this case.

ORDERED in Orlando, Florida, on February 18, 2025.

JUFIE S. SNEED

UNITED STATES DISTRICT JUDGE

Copies furnished to:

Unrepresented Party

Counsel of Record

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