Seiglie

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 25-CV-20885-RAR

JOSE SEIGLIE,

Plaintiff,

v.

CITY OF DORAL,

Defendant.

_____________________________________/

ORDER GRANTING IN PART DEFENDANT’S

MOTION TO DISMISS PLAINTIFF’S AMENDED COMPLAINT

THIS CAUSE comes before the Court on Defendant City of Doral’s (“Defendant” or

“City”) Motion to Dismiss Counts I, II, and III1 of the Amended Complaint and to Strike Plaintiff’s

Request for Punitive Damages2 (“Motion”), [ECF No. 9], filed on June 25, 2025. The Court has

reviewed the Motion, Plaintiff’s Response in Opposition, [ECF No 14], Defendant’s Reply in

Support, [ECF No. 15], and is otherwise fully advised. Accordingly, Defendant’s Motion is

GRANTED IN PART as set forth herein.

BACKGROUND

Plaintiff Jose Seiglie sues his former employer, the City of Doral, alleging that he was

subjected to unlawful discrimination and retaliation—which resulted in his demotion and

subsequent termination. Plaintiff, who is 67 years old, most recently served as a Major in charge

1 Defendant does not move to dismiss Plaintiff’s remaining claim, Count IV, and notes that it will file an

answer and affirmative defenses upon resolution of Defendant’s Motion. See Mot. at 2 n.1. As such, the

Court does not address Count IV, nor the facts related to it, in this Order.

2 Plaintiff has withdrawn his claim for punitive damages, mooting this portion of Defendant’s Motion. See

[ECF No. 14] at 18.

of administration for the City Police Department. See Am. Compl., [ECF No. 8] ¶¶ 8, 51.

Previously, Plaintiff served as the Deputy Chief of Police. Id. at 8. According to Plaintiff, he “had

an unblemished record of achievement and success.” Id. ¶ 14.

Plaintiff alleges that the Mayor, Police Chief, and other city officials persistently pressured

him and other, older police officers to leave the force. Am. Compl. ¶ 10. Plaintiff asserts that he

was “repeatedly harassed with questions about when he would leave the City Police Department

so he could be replaced with younger personnel.” Id. ¶ 11. In addition, Plaintiff alleges that the

Mayor publicly stated in a radio interview that he was “putting a young team in the police

department.” Id. ¶ 16. On or around August 15, 2023, the new Deputy Police Chief “informed

Plaintiff he needed to vacate his position in order for the City to promote younger employees.”

Am. Compl. ¶ 17. And on January 22, 2024, the Police Chief “tried to orchestrate a meeting for

the specific purpose of ‘buying [Plaintiff] out’ in attempts to bring in younger employees and carry

out a policy and plan to get rid of [Plaintiff] because of his age.” Id. ¶¶ 12, 18. Plaintiff also

alleges that the Mayor, Police Chief, Deputy Police Chief, and others “explicitly told [him] they

intended to take personnel action against him because of his age.” Id. ¶ 19.

Plaintiff alleges that he was demoted from Deputy Police Chief to Major, though he does

not specify a date.3 Id. ¶ 21. He was subsequently terminated on May 23, 2024, following a

meeting with the City Manager. Am. Compl. ¶¶ 23, 42. According to Plaintiff, before his

termination, he repeatedly complained about the City’s discriminatory policies and practices by

writing memos and speaking publicly about problems within the Department. Id. ¶ 26. This

included making comments that the new Police Chief was inexperienced and unqualified; the new

Deputy Police Chief had a history of misconduct; the City’s practices for storing weapons and

3 Because the Amended Complaint does not specify the date on which Plaintiff was demoted—nor when

many of the factual allegations occurred—Plaintiff is advised to clarify the factual timeline on amendment.

training officers were subpar and not in conformity with standards; and the City was engaged in

discrimination against older police officers. Id. ¶¶ 27, 30–40.

Plaintiff alleges that his demotion and termination “were directly correlated to and derived

from [his] protected activities because they occurred within close proximity of the protected

activity and because there were no reasons other than retaliatory motives.” Id. ¶ 29. Plaintiff

brings claims for retaliation under Title VII (Count I); violation of the Age Discrimination

Employment Act (“AEDA”) (Count II); retaliation in violation of the First Amendment pursuant

to 42 U.S.C. § 1983 (Count III); and violation of the Florida Public Whistleblower’s Act

(“FWPA”) (Count IV). See generally Am. Compl. According to Defendant, Counts I, II, and III

of Plaintiff’s Amended Complaint warrant dismissal because they fail to state claims upon which

relief can be granted. See Mot. at 2.

LEGAL STANDARD

“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. (citing Twombly,

550 U.S. at 556). “[T]he standard ‘calls for enough fact to raise a reasonable expectation that

discovery will reveal evidence’ of the claim.” Am. Dental Ass’n v. Cigna Corp., 605 F.3d 1283,

1289 (11th Cir. 2010) (quoting Twombly, 550 U.S. at 556). “[W]hen plaintiffs ‘have not nudged

their claims across the line from conceivable to plausible, their complaint must be dismissed.’” Id.

(quoting Twombly, 550 U.S. at 570). When evaluating a Rule 12(b)(6) motion to dismiss, the court

must accept all well-pleaded factual allegations as true and draw all inferences in favor of the

plaintiff. Jackson v. Alto Experience, Inc., 716 F. Supp. 3d 1327, 1333 (S.D. Fla. 2024) (citing

Smith v. United States, 873 F.3d 1348, 1351 (11th Cir. 2017)). The Court may only consider

allegations in the pleadings and exhibits attached to those pleadings. Id. at 1333.

ANALYSIS

I. Plaintiff cannot allege a claim for retaliation in violation of Title VII based on age

discrimination.

According to Defendant, Count I should be dismissed because “[a]ge is not a protected trait

under Title VII,” and “[p]urported complaints about alleged age discrimination are likewise not

protected under Title VII.” Mot. at 3. Defendant is correct. Title VII prohibits retaliation against

an employee “because he has opposed any practice made an unlawful employment practice by this

subchapter, or because he has made a charge, testified, assisted, or participated in any manner in

an investigation, proceeding, or hearing under this subchapter.” 42 U.S.C. § 2000e–3(a). But Title

VII only applies to discrimination based on race, color, religion, sex, or national origin. See id. §

2000e–3(b).

Indeed, Title VII makes no mention of age discrimination, and the appropriate statute under

which to bring age discrimination retaliation claims is the ADEA, 29 U.S.C. § 623. See Morris v.

S. Intermodal Xpress, LLC, No. CV 20-00126-KD-B, 2020 WL 3791944, at *6 (S.D. Ala. June 9,

2020), report and recommendation adopted, No. CV 20-00126-KD-B, 2020 WL 3650959 (S.D.

Ala. July 6, 2020); see also Prince v. Rice, 453 F. Supp. 2d 14, 19 n.1 (D.D.C. 2006) (“It should

be noted that Title VII does not apply to claims of age discrimination. Rather, such claims arise

under a separate statute—the Age Discrimination in Employment Act.”); Salamo Martinez v.

Celulares Telefonica, Inc., 272 F. Supp. 2d 144, 152 (D.P.R. 2003) (liberally construing plaintiff’s

age discrimination claim under the ADEA where plaintiff attempted to bring a Title VII claim for

age discrimination on the basis of age and noting that plaintiff did not bring his cause of action

under the appropriate statute).

Here, Plaintiff alleges he “was subjected to retaliation for opposing unlawful

discrimination in violation of Title VII of the Civil Rights Act of 1964.” Am. Compl. ¶ 47.

According to Plaintiff, he “was repeatedly harassed with questions about when he would leave so

he could be replaced with younger personnel,” with the Police Chief “orchestrat[ing] a meeting

for the specific purpose of buying him out to bring in younger employees.” Id. ¶¶ 18, 20 (internal

quotations omitted). At bottom, the discrimination Plaintiff complains of is age discrimination,

see id. ¶ 1, which is not covered by Title VII. See 42 U.S.C. § 2000e–3. As such, the ADEA is

the appropriate statute under which Plaintiff may bring claims of age discrimination retaliation.

In his Response, Plaintiff attempts to clarify the basis for his Title VII claim by asserting

that it does not rely on age discrimination. Instead, Plaintiff alleges that he was subject to

retaliation for “repeatedly complain[ing] about the City’s discriminatory policies and practices that

violate anti-discrimination statutes and laws.” Resp. at 4 (quoting Am. Compl. ¶ 22). But

Plaintiff’s Amended Complaint lacks any allegations suggesting Plaintiff suffered discrimination

on the basis of his race, color, religion, sex, or national origin—which is required to state Title VII

claim. Accordingly, Count I of the Amended Complaint must be dismissed.

II. Plaintiff has plausibly alleged a claim for age discrimination in violation of the

ADEA.

Defendant also argues that Count II should be dismissed because Plaintiff has not plausibly

alleged an age discrimination claim under the ADEA. Defendant asserts that Plaintiff’s Amended

Complaint “is devoid of any substantive factual allegations sufficient to establish that any City

decisionmaker harbored a specific intent to discriminate against Plaintiff on the basis of his age

with respect to any claimed adverse employment action.” Mot. at 4. However, Plaintiff has

sufficiently stated a claim under the ADEA.

The ADEA makes it “unlawful for an employer to . . . discriminate against any individual

with respect to his compensation, terms, conditions, or privileges of employment, because of such

individual’s age.” 29 U.S.C. § 623(a)(1). Courts in this Circuit apply the McDonnell Douglas

framework, originally applied to Title VII cases, to claims of discrimination under the ADEA. See

East v. Clayton Cnty., GA, 436 F. App’x 904, 911 (11th Cir. 2011) (citing Cofield v. Goldkist, Inc.,

267 F.3d 1264, 1268 n.6 (11th Cir. 2001)). Under the McDonnell Douglas framework, a plaintiff

can establish a prima facie case of age discrimination by showing he was: (1) a member of the

protected class, i.e., above the age of 40; (2) qualified for his current position; (3) subject to adverse

employment action; and (4) treated less favorable than any younger, similarly situated employee.

Id.; see also Zaben v. Air Prods. & Chems., Inc., 129 F.3d 1453, 1457 (11th Cir. 1997). Moreover,

the plaintiff must establish that “his age was the sole, or ‘but for,’ reason for the adverse

employment action.” Sclafani v. City of Margate, No. 22-61126, 2023 WL 4363537, at *3 (S.D.

Fla. July 6, 2023) (citing Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 177 (2009)).

However, Plaintiff “need not necessarily establish a prima facie case [of discrimination] to

survive a motion to dismiss, but []he must nevertheless satisfy the pleading requirements of Iqbal

and Twombly.” Melendez v. Town of Bay Harbor Islands, No. 14-22383, 2014 WL 6682535, at

*4 (S.D. Fla. Nov. 25, 2014) (cleaned up). At the pleading stage, Plaintiff must merely allege

“facts adequate to raise [his] right to relief above a speculative level.” Buchanan v. Delta Air

Lines, Inc., 727 F. App’x 639, 642 (11th Cir. 2018). Thus, “a complaint alleging employment

discrimination must simply state sufficient factual content to allow the court to draw the reasonable

inference that the employer had discriminatory intent when it fired the plaintiff.” Davis v. Miami-

Dade Cnty., No. 23-12480, 2024 WL 4051215, at *5 (11th Cir. Sep. 5, 2024) (cleaned up).

As a threshold matter, Plaintiff plausibly alleges that he suffered an adverse employment

action. To establish an adverse employment action, “an employee must show a serious and

material change in the terms, conditions, or privileges of employment.” Davis v. Town of Lake

Park, Fla., 245 F.3d 1232, 1239 (11th Cir. 2001), overruled on other grounds by Burlington N. &

Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006). “Termination is an ultimate employment action

that is undeniably adverse.” Freytes-Torres v. City of Sanford, 270 F. App’x 885, 894 (11th Cir.

2008) (citation omitted). However, demotions can also constitute adverse employment actions.

See Monaghan v. Worldpay US, Inc., 955 F.3d 855, 860 (11th Cir. 2020) (“Tangible employment

actions consist of things that affect continued employment or pay—things like terminations,

demotions, suspensions without pay, and pay raises or cuts[.]”). Plaintiff has sufficiently alleged

that Defendant materially altered his employment conditions when it “discriminated against,

demoted, harassed, changed duty stations, and fired [him] because of his age.” See Am. Compl.

¶¶ 28, 54.

Defendant’s Motion avers that Plaintiff fails to allege that his age was the sole, but for

cause for the adverse employment action he suffered. See Mot. at 4. According to Defendant,

“Count II of the Amended Complaint is devoid of any substantive factual allegations sufficient to

establish that any City decisionmaker harbored a specific intent to discriminate against Plaintiff

on the basis of his age with respect to any claimed adverse employment action (termination or

otherwise).” Id. But Defendant’s arguments are unavailing at this early stage of the case.

Defendant is correct that Plaintiff must allege that his age was the sole, but for cause of the

adverse employment action he suffered. See Sclafani, 2023 WL 4363537, at *3. But Plaintiff has

alleged enough to support that inference, as his allegations tell a story of someone pushed out of

his role because of his advanced age. Plaintiff, who is 67 years old, alleges that the Deputy Police

Chief told him that “he needed to vacate his position in order for the [Defendant] to promote

younger employees” and the Mayor, Police Chief, Deputy Chief, and others “told him they

intended to take personnel action against him because of his age.” Am. Compl. ¶¶ 17, 19. Plaintiff

also alleges that he “was repeatedly harassed with questions about when he would leave so he

could be replaced with younger personnel,” with the Police Chief “orchestrat[ing] a meeting for

the specific purpose of buying him out to bring in younger employees.” Id. ¶¶ 18, 20 (internal

quotation marks omitted). Plaintiff offers many allegations that suggest he was discriminated

against because of his age, which lend ample support to the notion that age discrimination was the

but for cause of the adverse employment actions he suffered.

These allegations, if taken as true, are sufficient to establish that Defendant—by way of

multiple decisionmakers—harbored a specific intent to discriminate against Plaintiff on the basis

of his age. Plaintiff alleges that Defendant openly pressured him to leave the Police Department

and expressed an intent to hire younger personnel in the lead up to his demotion and eventual

termination. And the Amended Complaint offers no “obvious alternative explanation” for

Plaintiff’s demotion as to rebut the inference that Defendant had discriminatory intent. See Davis,

2024 WL 4051215, at *5. These allegations, taken as true, are sufficient to survive Defendant’s

Motion to Dismiss.

III. Plaintiff has failed to sufficiently plead a § 1983 First Amendment retaliation

claim against Defendant.

In Count III of his Amended Complaint, Plaintiff alleges that Defendant retaliated against

him in violation of the First Amendment pursuant to 42 U.S.C. § 1983. Section 1983 provides a

private right of action against “[e]very person who,” acting under color of state law, “subjects, or

causes to be subjected, any citizen of the United States or other person within the jurisdiction

thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and

laws[.]” 42 U.S.C. § 1983. Municipalities are considered persons for purposes of the statute. See

Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658, 701 (1978).

The Court’s analysis for Count III is twofold. First, the Court must determine if Plaintiff

has stated a claim of public-employee First Amendment retaliation. See Vila v. Padron, 484 F.3d

1334, 1339 (11th Cir. 2007). Second, the Court must determine if Plaintiff has pleaded facts

sufficient to hold the municipality liable under Monell. See 436 U.S. at 694–95. Ultimately,

Plaintiff has failed to state a claim for First Amendment retaliation because he has not plausibly

alleged that he spoke as a citizen on a matter of public concern. Notwithstanding, Plaintiff’s

Monell claim also fails.

a. First Amendment Retaliation

“Retaliation against the exercise of First Amendment rights is a well-established basis for

section 1983 liability.” O’Boyle v. Sweetapple, 187 F. Supp. 3d 1365, 1370 (S.D. Fla. 2016).

Generally, a public employee may not be demoted or discharged in retaliation for speech protected

by the First Amendment. See Alves v. Bd. of Regents of the Univ. Sys. of Georgia, 804 F.3d 1149,

1159 (11th Cir. 2015). However, government employees do not enjoy an absolute right to freedom

of speech. The Supreme Court has aimed “to strike ‘a balance between the interests of the

[employee], as a citizen, in commenting upon matters of public concern and the interest of the

State, as an employer, in promoting the efficiency of the public services it performs through its

employees.’” Id. (quoting Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968)).

Courts employ a four-part inquiry to assess a public employee’s First Amendment

retaliation claim. Moss v. City of Pembroke Pines, 782 F.3d 613, 617 (11th Cir. 2015). The first

two steps address whether the speech at issue is constitutionally protected, which turn on questions

of law for the court to resolve. Id. at 618. “The first [step] requires determining whether the

employee spoke as a citizen on a matter of public concern.” Alvez, 804 F.3d at 1159 (quoting

Garcetti v. Ceballos, 547 U.S. 410, 418 (2006)). If the employee has not, the speech is not

constitutionally protected, and the employee does not have a cause of action for First Amendment

retaliation. Id. But if so, the “question becomes whether the relevant government entity had an

adequate justification for treating the employee differently from any other member of the general

public [based on the government’s interests as an employer].” Id. Then, the court must balance

public and private interests as articulated in Pickering to weigh the employee’s free speech interest

against the interest of the government employer “‘in promoting the efficiency of the public services

it performs.’” Chesser v. Sparks, 248 F.3d 1117, 1122 (11th Cir. 2001) (quoting Pickering, 391

U.S. at 568).4

Here, the inquiry ends at the first step. For Plaintiff’s speech to be constitutionally

protected, he “must have spoken (1) as a citizen and (2) on a matter of public concern.” Moss, 782

F.3d at 618. Defendant argues that Plaintiff’s Amended Complaint fails to articulate any protected

speech that may form the basis of his First Amendment retaliation claim. See Mot. at 11. In his

Response, Plaintiff asserts that he “engaged in protected speech when he reported unlawful

discrimination and retaliation within the police department—conduct plainly qualifying as a matter

of public concern.” Resp. at 13. Plaintiff’s Amended Complaint, as currently pleaded, fails to

allege with enough specificity that he spoke as a citizen on a matter of public concern.

First, Plaintiff must establish that he spoke as a citizen rather than as an employee. The

Supreme Court has held that “when public employees make statements pursuant to their official

duties, the employees are not speaking as citizens for First Amendment purposes, and the

4 The third step of the analysis “requires Plaintiff to show that [the speech] was a substantial motivating

factor in his termination” and “[i]f Plaintiff is able to make this showing, the burden shifts to the City to

prove that it would have terminated Plaintiff even in the absence of his speech.” Moss, 782 F.3d at 618.

These final two steps relate to the causal link between the plaintiff’s speech and termination, and they are

questions of fact to be resolved by a jury unless the evidence is undisputed. Id.

Constitution does not insulate their communications from employer discipline.” Garcetti, 547

U.S. at 421. “The central inquiry is whether the speech at issue ‘owes its existence’ to the

employee’s professional responsibilities.” Moss, 782 F.3d at 618 (quoting Garcetti, 547 U.S. at

421). Courts consider factors like “the employee’s job description, whether the speech occurred

at the workplace, and whether the speech concerns the subject matter of the employee’s job[.]” Id.

Plaintiff must also establish that the speech addresses a matter of public concern, as

opposed to a matter of personal interest. See Alvez, 804 F.3d at 1162. “To fall within the realm

of ‘public concern,’ an employee’s speech must relate to ‘any matter of political, social, or other

concern to the community.’” Id. (quoting Connick v. Myers, 461 U.S. 138, 146 (1983)). This

inquiry involves examining the “content, form, and context of a given statement[.]” Connick, 461

U.S. at 147–48. Courts look to “whether the ‘main thrust’ of the speech in question is essentially

public in nature or private, whether the speech was communicated to the public at large or privately

to an individual, and what the speaker’s motivation in speaking was.” Vila, 484 F.3d at 1340

(quoting Mitchell v. Hillsborough County, 468 F.3d 1276, 1283 (11th Cir. 2006)). Whether the

speech was communicated publicly or privately is relevant—but not dispositive—to this inquiry.

Alvez, 804 F.3d at 1162.

Plaintiff’s Amended Complaint does not allege enough about the speech in question for

the Court to conclude that Plaintiff spoke as a citizen on a matter of public concern. As Defendant

notes, Plaintiff’s allegations in Count III do not specifically reference any speech that Plaintiff

allegedly made. See Mot. at 11. Turning to the general allegations at the start of Plaintiff’s

Amended Complaint, Plaintiff alleges that he “wrote multiple memos to City officials, superiors,

and personnel” and “spoke publicly and in meetings as an individual by way of his First

Amendment right to vocally criticize the City and City Police Department for misfeasance,

malfeasance, gross misconduct, and violation of applicable laws, regulations, and policies.” Am.

Compl. ¶ 26. Plaintiff then lists five “free speech” activities he engaged in, including stating that

(a) the Police Chief was inexperienced and unqualified; (b) the Deputy Police Chief had a history

of misconduct; (c) the City’s practices for storing weapons were subpar and did not conform with

standards; (d) the City’s law enforcement training was subpar and did not conform with standards;

and (e) the City was engaged in age discrimination against older officers. Id. ¶ 27.

These allegations, on their own, are insufficient to establish that Plaintiff spoke as a citizen

rather than as an employee. All of Plaintiff’s grievances relate to the inner workings of the City’s

Police Department, where Plaintiff worked as a Deputy Police Chief and then as a Major in charge

of administration—both high-ranking roles with administrative duties. Id. ¶ 8. Thus, the speech

appears related to Plaintiff’s professional responsibilities within the Police Department, where he

would have observed and learned of these issues. To be clear, “the mere fact that a citizen’s speech

concerns information acquired by virtue of his public employment does not transform that speech

into employee—rather than citizen—speech.” Lane v. Franks, 573 U.S. 228, 240 (2014). But

Plaintiff fails to establish that this speech did not “owe its existence” to Plaintiff’s professional

responsibilities. Cf. Zedalis v. Darnell, No. 1:17CV113-MW/GRJ, 2020 WL 9218526, at *3 (N.D.

Fla. Sept. 24, 2020) (finding, at the motion to dismiss stage, that plaintiff spoke as a private citizen

rather than as a Sheriff’s Deputy when he criticized defendant about work-related matters at an

off-site campaign event while running for Sheriff). Plaintiff does not address what his professional

duties entailed, where he made these comments, or whether they related to his duties. Therefore,

further factual development is needed to clarify whether Plaintiff spoke as a citizen rather than as

an employee. See Moss, 782 F.3d at 618.

In addition, most of Plaintiff’s allegations suggest that he raised these concerns privately

and internally. Plaintiff allegedly “wrote multiple memos to City officials, superiors, and

personnel,” submitted “written complaints to decision makers and during the course of

investigations in which he participated,” and made protected disclosures in “written memos on

March 15th and 20, 2024.” Am. Compl. ¶¶ 26, 39–40. “[T]he Eleventh Circuit has repeatedly

found, an employee who makes internal reports regarding mismanagement and fraud generally

speaks pursuant to her professional duties rather than as a citizen.” Boglin v. Bd. of Trs. of Alabama

Agric. & Mech. Univ., 290 F. Supp. 3d 1257, 1269 (N.D. Ala. 2018). Indeed, the First Amendment

does not empower public employees to “‘constitutionalize the employee grievance.’” Garcetti,

547 U.S. at 420 (quoting Connick, 461 U.S. at 154). To the extent these allegations constitute

internal grievance-airing, they suggest Plaintiff was speaking as an employee—not as a citizen.

Plaintiff’s Amended Complaint similarly fails to establish that he spoke on a matter of

public, rather than private, concern. Though not dispositive, courts afford considerable weight to

whether the speech was made publicly or privately. See Alvez, 804 F.3d at 1162. Here, Plaintiff

merely alleges he “spoke publicly and in meetings as an individual by way of his First Amendment

right to vocally criticize the City and City Police Department for misfeasance, malfeasance, gross

misconduct, and violation of applicable laws, regulations, and policies.” Am. Compl. ¶ 26

(emphasis added). But Plaintiff’s Amended Complaint lacks any context as to where or when he

“spoke publicly and in meetings.” Id. Plaintiff only references one—presumably private—

meeting on the day he was fired, where he “provided the City Manager with written and verbal

lists of the misconduct described herein.” Id. ¶ 42. And Plaintiff wholesale fails to specify where,

when, or how he made public comments.

That said, a public employee’s speech about problems within their city’s police department

can implicate matters of public concern. In O’Neal v. City of Hiram, the Eleventh Circuit held

that a police officer spoke on matters of public concern when he “complained about workers’

compensation fraud, discrimination, retaliation, the former police chief’s interference with the

third-party investigation, and alleged retaliation and discrimination against . . . a City employee”

and “made these complaints public by voicing them to the Mayor and City Council, among others.”

No. 21-11327, 2022 WL 2921303, at *4 (11th Cir. July 26, 2022). The problem for Plaintiff is

that this inquiry turns on the speech’s “content, form, and context.” Id. at *3. And unlike in

O’Neal, that is not apparent from Plaintiff’s Amended Complaint. Nowhere does Plaintiff allege

when, where, or to whom he “spoke publicly.” Am. Compl. ¶ 26.

As such, Plaintiff has not established that he engaged in protected speech. Accordingly,

Defendant’s Motion to Dismiss Count III of the Amended Complaint is granted.

b. Municipal Liability

Plaintiff’s Amended Complaint also fails to adequately plead municipal liability pursuant

to 42 U.S.C. § 1983. Separate from establishing the elements of a First Amendment retaliation

claim, Plaintiff must also show that execution of the municipality’s policy or custom caused the

alleged constitutional injury. See Monell, 436 U.S. at 694–95. “A plaintiff can establish municipal

liability under Monell in three ways: (1) identifying an official policy; (2) identifying an unofficial

custom or widespread practice that is so permanent and well settled as to constitute a custom and

usage with the force of law; or (3) identifying a municipal official with final policymaking

authority whose decision violated the plaintiff’s constitutional rights.” Chabad Chayil, Inc. v. Sch.

Bd. of Miami-Dade Cnty., Fla., 48 F.4th 1222, 1229 (11th Cir. 2022).

Plaintiff does not advance any of these theories for municipal liability in Count III of his

Amended Complaint. Instead, he quotes from § 1983 and then repeatedly emphasizes his right to

free speech under the First Amendment. See Am. Compl. ¶¶ 57–72. Defendant’s Motion asserts

that “Plaintiff has proffered no facts which would establish that any City policy or custom was the

moving force behind Plaintiff’s purported constitutional deprivation as required by Monell.” Mot.

at 8. Defendant is correct.

The allegations in Plaintiff’s Amended Complaint are wholly conclusory and do not

identify any widespread practice, pervasive custom, or decisionmaker with policymaking authority

who violated Plaintiff’s constitutional rights. See McCants v. City of Mobile, 752 F. App’x 744,

748 (11th Cir. 2018) (affirming dismissal of claims against city because plaintiffs “fail to support

their municipal liability claims with anything other than ‘a formulaic recitation of the elements of

the cause of action.’”) (quoting Iqbal, 556 U.S. at 678); Perez v. City of Opa-Locka, 629 F. Supp.

3d 1164, 1184 (S.D. Fla. 2022) (finding the allegation that “[t]he City has a history of retaliating

against those who speak out about gross financial mismanagement / waste of public funds” was

conclusory, factually-unsupported, and insufficient to plausibly allege a “custom or practice” of

retaliation); Coakley v. City of Hollywood, No. 19-62328, 2021 WL 2018914, at *3 (S.D. Fla. Jan.

15, 2021), report and recommendation adopted, No. 19-62328, 2021 WL 2012360 (S.D. Fla. May

20, 2021) (finding plaintiff’s allegations insufficient to satisfy Monell under Iqbal/Twombly

pleading requirements because the complaint “fails to identify any formal policy or to include any

non-conclusory allegations regarding any unofficial policy or custom that may be at issue.”).

Therefore, Plaintiff’s allegations are insufficient to withstand dismissal of Count III.

Plaintiff inappropriately attempts to remedy this pleading deficiency in his Response,

where he advances new theories in support of municipal liability. See Burgess v. Religious Tech.

Ctr., Inc., 600 F. App’x 657, 665 (11th Cir. 2015) (“We repeatedly have held that plaintiffs cannot

amend their complaint through a response to a motion to dismiss.”). Specifically, Plaintiff claims

that “the Amended Complaint sets forth detailed factual allegations supporting both an

unconstitutional custom rooted in deliberate indifference and a policy or practice that, even if

facially lawful, directly caused retaliation against [Plaintiff] for engaging in protected speech.”

Resp. at 9. Plaintiff first points to his “allegations the City knew of ongoing constitutional

violations and failed to act,” which constitute an unofficial custom of deliberate indifference. Id.

at 10. Plaintiff then purports to identify actual “policies and practices” where “the City failed to

adequately train officers, tolerated a pattern of retaliation, and perpetuated a culture of

discrimination that directly caused the retaliation[.]” Id. at 12.

Plaintiff fails to state a § 1983 claim against Defendant based on an unofficial custom of

deliberate indifference. “To impose § 1983 liability on a municipality, a plaintiff must show that:

(1) his or her constitutional rights were violated; (2) the municipality had a custom or policy that

constituted deliberate indifference to that constitutional right; and (3) that policy or custom caused

the constitutional violation.” McDowell v. Brown, 392 F.3d 1283, 1289 (11th Cir. 2004). Here,

aside from Plaintiff’s failure to plausibly allege a First Amendment violation, Plaintiff also fails to

establish that Defendant had a custom or policy that constituted deliberate indifference to a

constitutional right.

“To prove § 1983 liability against a municipality based on unofficial custom, a plaintiff

must establish a widespread practice that, ‘although not authorized by written law or express

municipal policy, is so permanent and well settled as to constitute a custom or usage with the force

of law.’” Heath v. Miami-Dade Cnty., 736 F. Supp. 3d 1149, 1159–60 (S.D. Fla. 2024) (quoting

Brown v. City of Fort Lauderdale, 923 F.2d 1474, 1481 (11th Cir. 1991)). In other words, the

unofficial custom must be “so pervasive” as to constitute the “functional equivalent” of an official

policy, and an isolated incident is insufficient to rise to that level. Id. (citing Grech v. Clayton

Cnty., Ga., 335 F.3d 1326, 1330 n.6 (11th Cir. 2003)).

Plaintiff’s allegations fail to establish that Defendant’s actions against him were grounded

in an unofficial custom and not the result of an isolated incident. Despite making a passing

reference to Defendant’s retaliation against “other older, more qualified, and experienced City

police officers” and noting “an alarming mass exodus of the City’s most experienced and qualified

police officers,” Am. Compl. ¶¶ 10, 31, Plaintiff’s allegations do not plausibly demonstrate that

Defendant’s conduct constitutes anything more than a discrete incident affecting only Plaintiff.

Cf. Heath, 736 F. Supp. 3d at 1160 (finding plaintiff plausibly alleged a § 1983 claim based on

defendant’s “years-long, de facto, and unwritten policy of deliberate indifference to the serious

medical needs of inmates, like [the plaintiff].”).

To the extent Plaintiff attempts to advance a claim based on official custom, it similarly

fails. In his Response, Plaintiff obliquely references “policies and practices, while arguably not

facially unconstitutional, [which] created an environment in which protected speech was punished

and whistleblowers were silenced.” Resp. at 12. Specifically, Plaintiff asserts that Defendant

“failed to adequately train officers, tolerated a pattern of retaliation, and perpetuated a culture of

discrimination that directly caused the retaliation Seiglie suffered for speaking out.” Id. But these

formulaic recitations fall short of identifying an official policy or custom. And while a “fail[ure]

to adequately train officers,” can serve as a basis for a § 1983 claim in certain contexts, this theory

is wholly inapplicable to Plaintiff’s circumstances. Id.

“[M]unicipal liability under § 1983 for failure to train applies in only a very narrow range

of circumstances.” Mingo v. City of Mobile, Ala., 592 F. App’x 793, 800 (11th Cir. 2014). “To

establish that a municipality was ‘deliberately indifferent’ in the failure-to-train context, a plaintiff

must demonstrate that the municipality knew of the need to train in a particular area and made a

deliberate choice not to take any action.” Heath, 736 F. Supp. 3d at 1168 (quoting Mingo, 592 F.

App’x at 799). But Plaintiff, who served as Deputy Police Chief and Major, alleges First

Amendment retaliation. Thus, the constitutional violation Plaintiff alleges does not arise from

untrained officers violating his First Amendment rights; rather, he alleges retaliation by Defendant

because he complained about unrelated training deficiencies.

In sum, for the reasons set forth above, Count III of Plaintiff’s Amended Complaint is

dismissed.

IV. Plaintiff’s references to hostile work environment, harassment, and the Florida

Civil Rights Act will not be stricken.

Defendant also moves to strike Plaintiff’s references to “harassment,” “hostile work

environment,” and the Florida Civil Rights Act (“FCRA”) in his Amended Complaint as

immaterial, impertinent, and otherwise scandalous. See Mot. at 6, 12–15; see also FED. R. CIV. P.

12(f) (explaining the Court “may strike from a pleading an insufficient defense or any redundant,

immaterial, impertinent, or scandalous matter.”). Defendant further argues that any references to

“harassment,” “hostile work environment,” or the FCRA should be stricken because the Amended

Complaint does not specifically plead these claims. See Mot. at 5–7, 12–15.

While the Court recognizes that Plaintiff’s allegations of “harassment” and “hostile work

environment” do not form the basis of separate claims, striking said references is unwarranted as

they appear to be descriptive allegations of Defendant’s conduct which are not wholly immaterial

in nature. See U.S. Equal Emp. Opportunity Comm’n v. Pediatric Health Care Care All., P.A.,

No. 8:20-CV-1428-T-60CPT, 2020 WL 6485003, at *2 (M.D. Fla. Nov. 4, 2020) (denying motion

to strike allegations of harassment, which plaintiff included as “background for the claim of

retaliation,” because the court could not conclude that the “harassment allegations bear no relation

to the retaliation claim or that their presence will prejudice Defendant.”); see also Nash v. O.R.

Colan Grp., LLC, No. 12-60759, 2012 WL 4338817, at *1 (S.D. Fla. Sept. 20, 2012) (explaining

that a motion to strike is a “drastic remedy” which is “disfavored by the courts.”).

As for Plaintiff’s references to the FCRA, it appears that Plaintiff may have inappropriately

commingled different statutory claims. But striking said reference from the Amended Complaint

is unwarranted as Plaintiff is being given leave to amend. If Plaintiff seeks to assert a claim under

the FCRA—a different statute from the Florida Public Whistleblower Act, which Plaintiff alleges

a violation of in Count IV—Plaintiff shall plead said claim in a separate count on amendment.

Accordingly, the Court denies Defendant’s Motion to Strike.

V. Plaintiff’s request for leave to amend is granted.

Plaintiff seeks leave to amend should the Court dismiss any of his claims. See [ECF No.

14] at 18–19. The Court will afford Plaintiff an opportunity to amend in order to comply with this

Court’s directives before it dismisses any claims with prejudice.5 However, the Court cautions

Plaintiff that further amendments will not be permitted if Plaintiff does not cure the deficiencies

identified in this Order. Any amended pleading shall comply with the Federal Rules of Civil

Procedure and the Local Rules of the Southern District of Florida, and address the deficiencies

identified above.

CONCLUSION

For the foregoing reasons, it is hereby ORDERED AND ADJUDGED as follows:

1. Defendant’s Motion, [ECF No. 9], is GRANTED IN PART.

5 The Eleventh Circuit “ha[s] never required district courts to grant counseled plaintiffs more than one

opportunity to amend a deficient complaint, nor [] concluded that dismissal with prejudice is inappropriate

where a counseled plaintiff has failed to cure a deficient pleading after having been offered ample

opportunity to do so.” Eiber Radiology, Inc. v. Toshiba Am. Med. Sys., Inc., 673 F. App’x 925, 930 (11th

Cir. 2016).

2. Counts I and II of the Amended Complaint are DISMISSED without prejudice

and with leave to amend.

3. Within fourteen (14) days of this Order, Plaintiff shall file a Second Amended

Complaint that complies with the instructions set forth herein.

DONE AND ORDERED in Miami, Florida, this 10th day of February, 2026.

<ODOLFO A. RUIZ I

UNITED STATES DISTRICT JUDGE

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