DocketNumber: Case No: 6:17-cv-327-Orl-40GJK
Citation Numbers: 324 F. Supp. 3d 1239
Judges: Byron
Filed Date: 8/24/2018
Status: Precedential
Modified Date: 7/25/2022
This controversy arises out of Plaintiff Marcos R. Lopez's ("Lopez ") campaign for Osceola County Sheriff in the November 2016 election. While blazing the campaign trail, Lopez's actions got him in hot water at work. As a result, he was demoted. Lopez then initiated this action against Defendant Russell Gibson ("Sheriff Gibson " or "Defendant "). Now before the Court are the parties' cross motions for summary judgment (Docs. 43, 44), responses (Docs. 48, 50), and a reply by Defendant (Doc. 52). With briefing complete, the matter is ripe. Upon consideration, Defendant Russell Gibson's Motion for Summary Judgment is due to be granted and Lopez's denied.
I. BACKGROUND
In 2003, Lopez was hired by the Osceola County Sheriff's Office ("OCSO ") as a communications dispatcher. (Doc. 43-1, 18:20-22). Throughout the years, he moved up the OCSO ranks, culminating in his promotion to the rank of sergeant on June 6, 2016. (Id. at 28:21-30:19, 45:4-8). But Lopez had higher aspirations, and two days after his promotion, he launched a campaign for Osceola County Sheriff. (Id. at 46:11-14). Lopez's two primary election opponents were Dave Sklarek and Defendant Russell Gibson, (Doc. 43-11, 26:10-13), neither of whom were OCSO employees in June 2016.
The campaign was immediately contentious. Lopez announced his candidacy for Sheriff on Facebook. (Doc. 43-1, 42:24-43:14, 46:11-14).
Lieutenant Ryan Berry performed the investigation. (Id. at pp. 202-19). He found that Lopez's hands were not entirely clean and informed Lopez that the investigation included his Facebook posts. (Id. at 83:15-84:8, p. 212). Following the completion of the investigation and submission of Lt. Berry's report on September 23, 2016, Lopez received a written reprimand for his own Facebook posts. (Id. at p. 219).
*1241Pearce was also reprimanded, while Det. Vazquez was exonerated. (Id. at pp. 216-18).
Lopez's problematic Facebook activity wasn't over. On August 12, 2016, then-OCSO-Sheriff Robert Hansell ("Sheriff Hansell ") received a report that Lopez publicly criticized the OCSO on his Facebook page, prompting a new investigation headed up by Sergeant Steve Moser ("Sgt. Moser "). (Doc. 43-2, pp. 1-3). Sgt. Moser's investigation found that Lopez posted
Lopez took up an appeal in front of the Career Service Appeals Board ("CSAB "), as afforded by Florida Law. Ch. 2000-388, Fla. Laws; Leath v. Hansell , No. 6:06-cv-896-Orl-19DAB, Doc. 39, p. 4,
After all this, Lopez instituted this action against Sheriff Gibson
Defendant moves for summary judgment on both counts. (Doc. 43). Lopez opposes Defendant's motion as to his First Amendment claim, but "agrees that his equal protection claim can be dismissed." (Doc. 50). Lopez also moves for summary judgment as to several non-dispositive issues, including that Plaintiff has standing and that Lopez's Facebook posts constitute protected political speech. (Doc. 44).
II. STANDARD OF REVIEW
"The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The party moving for summary judgment must "cit[e] to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations..., admissions, interrogatory answers, or other materials" to support its position that it is entitled to summary judgment. Fed. R. Civ. P. 56(c)(1)(A). "The court need consider only the cited materials" when resolving a motion for summary judgment. Fed. R. Civ. P. 56(c)(3) ; see also HRCC, Ltd. v. Hard Rock Café Int'l (USA), Inc. ,
A factual dispute is "genuine" only if "a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc. ,
III. DISCUSSION
A. Count I
Title 42, section 1983 vests individuals with a cause of action against the government and its agents to redress constitutional deprivations. A plaintiff suing a municipality
An official is not a final policymaker where his or her decisions are subject to "meaningful administrative review." Scala v. City of Winter Park ,
Here, the issue is whether Sheriff Gibson is a final policymaker with respect to Lopez's demotion decision. It is Plaintiff's burden to establish this essential element. Maschmeier ,
On review, the Court finds that Sheriff Gibson was not a final policymaker with respect to Lopez's demotion.
*1244Lopez protests that the CSAB's review was not meaningful because its procedures were defective. First, Lopez argues that Sheriff Gibson has the exclusive authority to promote officers, and his failure to "correct the unconstitutional discipline" (by promoting Lopez to his pre-demotion position) renders Sheriff Gibson a final policymaker with respect to Lopez's demotion. (Doc. 50, p. 12). This argument fails because (1) the Complaint lacks a separate cause of action for Defendant's failure to re-promote Lopez, and (2) the authority to promote does not bear on whether Sheriff Gibson had final policymaking authority with respect to demotion decisions.
Next, Lopez argues that the CSAB proceeding lacked sufficient due process protections, and therefore did not provide "meaningful administrative review." (Doc. 50, pp. 12-15). Lopez, however, fails to cite caselaw supporting his contentions that a two-and-a-half-hour hearing is too brief to be meaningful, or that being denied counsel renders the proceeding "defective." These complaints are therefore insufficient to support the conclusion that the CSAB's review was not meaningful.
The Court likewise disagrees with Lopez's final point, that the denial of counsel and cross-examination at the CSAB hearing violate Florida law. Lopez complains that the CSAB's procedures failed to adhere to Florida Statutes § 30.076's due process guarantees. (Doc. 50, pp. 13-15). However, § 30.076 does not apply to Lopez's appeal of his demotion and suspension. Section 30.076(1) guarantees a deputy sheriff facing termination , among other things, the right to cross-examine witnesses testifying against them and the right to counsel at termination appeals hearings. Section 30.076(1) applies only to appeals of terminations, not demotions. Lopez attempts to bridge this gap by insisting that § 30.076 applies to terminations of promotions as well as normal terminations, relying on an unrelated subsection of another statute, § 30.073(3). (Doc. 50, p. 14). Lopez's importation of the broad "termination" definition from § 30.073(3) to avail himself of § 30.076's robust due process guarantees defies basic statutory construction.
Finally, Lopez's cursory insinuation that the CSAB impermissibly ratified unconstitutional discipline is without merit. (Doc. 50, pp. 8, 10, 12). As noted above, administrative review is not meaningful where the administrative body simply "ratified the official's decision and improper motive." Maschmeier ,
*1245In sum, the CSAB exercised "meaningful administrative review" over the OCSO Sheriff's discipline of Lopez. Though Lopez complains about perceived inadequacies of the CSAB procedure, the record is clear that Lopez's discipline was subject to satisfactory review.
Having found Sheriff Gibson is not a final policymaker with respect to Plaintiff's demotion, Plaintiff has failed to prove a basis for municipal liability as to Count I. Thus, Defendant Gibson is entitled to summary judgment on Count I. See, e.g. , Scala ,
B. Count II
In his Response in Opposition to Defendant's Motion for Summary Judgment, Lopez indicates that he "agrees that his equal protection claim can be dismissed." (Doc. 50). The Court will therefore grant Defendant's summary judgment motion as to Count II.
IV. CONCLUSION
Accordingly, it is ORDERED and ADJUDGED as follows:
1. Defendant's Motion for Summary Judgment (Doc. 43) is GRANTED . Judgment is granted in Defendant's favor as to Counts I and II.
2. Plaintiff's Motion for Summary Judgment (Doc. 44) is DENIED .
3. The Clerk of Court is DIRECTED to:
a. Enter judgment in favor of Defendant Russell Gibson;
b. Terminate any other pending motions and deadlines; and
c. Close the file.
DONE AND ORDERED in Orlando, Florida on August 24, 2018.
The parties generally agree as to the facts.
Gibson retired from his career with OCSO in December 2015 (Doc. 43-10, 5:17-19, 10:17-19), while Sklarek retired in May 2016. (Id. at 66:6-8).
Lopez maintained two Facebook accounts during this period: a "community cop page" and a personal Facebook page. (Doc. 43-1, 51:1-11). The majority of Lopez's campaign-related postings were made from the community cop account. (Id. 51:9- 11).
The posts leading to Lopez's reprimand were directed at Sgt. Pearce and stated:
You are a Sergeant and a supervisor shame on you for being ignorant. What have I ever done to you but give you respect?
I just received the first ignorant comment from a Sergeant [P]earce at the Osceola Sheriff's Office. He is upset that I am exercising my constitutional rights as a retired and disabled military veteran running for sheriff. Shame on him. I will not tolerate ignorance. Please refrain from negativity.
(Id. at pp. 210, 219). Lopez was reprimanded because the above-referenced comments violated Standard of Conduct § 341.0(4)(A)(41), which provides that "Members will be courteous and respectful to all agency members, and members of the public." (Id. at p. 219).
Lopez disputes that he is responsible for all of the posts. According to Lopez, some of the messages were posted by his campaign manager, Ruben DeJesus. (Doc. 43-1, p. 64).
For instance, Lopez referred to the OCSO as a "# riggedsystem," suggesting the OCSO was somehow unfair or manipulated. (Doc. 43-4, pp. 8, 12-13, 17-18, 21; Doc. 43-6, p. 46). Other posts implied that the Osceola County community did not trust, or have confidence in, the OCSO. (Doc. 43-4, p. 11; Doc. 43-6, pp. 41, 50, 94). These are just a few of the litany of negative messages Lopez posted regarding the OCSO. (See Docs. 43-4 through 43-7).
Specifically, Lopez was cited for violating the OCSO Standards of Conduct: (1) proscribing untruthful public criticism of the OCSO, (2) requiring officers to obey OCSO directives, and (3) prohibiting officers from engaging in "unbecoming conduct." (Id. ).
Plaintiff's claims are directed at Sheriff Gibson who was the acting OCSO Sheriff when this action was filed. Sheriff Gibson became the Sheriff in January 2017. (Doc. 40-1, 23:11-13). Sheriff Hansell, meanwhile, served as Sheriff from 2005 until 2017. (Doc. 38-1, 9:18-22).
Lopez presently only pursues the § 1983 claim for violation of his First Amendment rights against Russell Gibson in his official capacity as Sheriff of Osceola County, Florida. Suing a county official in his or her official capacity is "another way of pleading an action against an entity of which an officer is an agent." Busby v. City of Orlando ,
"Unpublished opinions are not controlling authority and are persuasive only insofar as their legal analysis warrants." Bonilla v. Baker Concrete Const., Inc. ,
See Leath v. Hansell , No. 6:06-cv-896-Orl-19DAB, Doc. 39,
See Pembaur ,
See Allen v. USAA Cas. Ins. Co. ,