UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF FLORIDA

TIM CANOVA,

Plaintiff,

v. Case No: 0:20-cv-61328-SINGHAL

BRENDA C. SNIPES, DOZEL SPENCER

and the BROWARD COUNTY SUPERVISOR

OF ELECTIONS, 

Defendants.

_____________________________________/

PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANT’S MOTION TO 

DISMISS

COMES NOW, Plaintiff, TIM CANOVA (“Canova” or “Plaintiff”), by and through the 

undersigned counsel, and files this Response in Opposition to the Motion to Dismiss filed by 

Plaintiffs in this matter, and in support thereof, states:

INTRODUCTION

Dismissal of this matter is improper. Canova has properly stated a cause of action because 

Defendants’ destruction of ballots resulted in a deprivation of his constitutional right to candidacy 

in a fair election in which ballots are properly counted. The right to vote and the right to run for 

political office are intertwined. Canova’s Fourteenth Amendment rights were likewise violated by 

Defendants’ improper destruction of ballots. Further, a presumption of impropriety in the election 

process arises from Defendants’ destruction of the ballots in contravention of Florida’s Public 

Records Act. Defendants’ argument that the Supervisor of Elections cannot be sued is incorrect. 

Defendants are not entitled to qualified immunity due to their violations of Canova’s constitutional 

rights. Finally, dismissal with prejudice is improper. 

Case 0:20-cv-61328-AHS Document 17 Entered on FLSD Docket 11/10/2020 Page 1 of 17
FACTUAL BACKGROUND

1. On June 16, 2020, Plaintiff, Tim Canova, filed a three count Complaint in the 

Seventeenth Judicial Circuit Court in and for Broward County, Florida, Case No. CACE20-

009862, against Defendants Brenda Snipes, Dozel Spencer, and the Broward County Supervisor 

of Elections (“Defendants”). 

2. On July 2, 2020, Plaintiff filed a three count Complaint in the United States District 

Court for the Southern District of Florida, Case No. 20-cv-61328, against Defendants. 

3. On October 15, 2020, Defendants removed Plaintiff’s case that was filed in the 

Seventeenth Judicial Circuit Court in and for Broward County, Florida to the United States District 

Court for the Southern District of Florida, where it was assigned Case No. 20-cv-62100.

4. On October 20, 2020, Defendants filed a Motion to Dismiss in Case No. 20-cv61328. 

5. On October 22, 2020, Defendants filed a Motion to Dismiss in Case No. 20-cv62100. 

6. On October 27, 2020, this Court entered its order consolidating the two cases as 

Case No. 20-cv-61328-SINGHAL. 

7. Thus, Plaintiff’s Response in Opposition addresses arguments made in both 

motions to dismiss. 

8. Further, and notably, Plaintiff in this matter previously brought a cause of action 

against Defendants before the Circuit Court of the Seventeenth Judicial Circuit in and for Broward 

County, Florida, titled Tim Canova v. Brenda C. Snipes, in her Official Capacity as Broward 

County Supervisor of Elections, Broward County, Florida, Case No. CACE-17-010904.

9. To the Complaint, Plaintiff attached as an exhibit the Order granting Plaintiff’s 

Motion for Summary Judgment in the case before the Seventeenth Judicial Circuit. This Court may 

Case 0:20-cv-61328-AHS Document 17 Entered on FLSD Docket 11/10/2020 Page 2 of 17
consider the exhibits to the Complaint in ruling on the Motion to Dismiss. See, e.g., Hoefling v. 

City of Miami, 811 F.3d 1271, 1277 (11th Cir. 2016). The Order from the prior case is directly 

relevant to the analysis of the Motion to Dismiss. 

ARGUMENT AND MEMORANDUM OF LAW

A. Defendants’ argument that the Supervisor of Elections lacks the “capacity to be 

sued” is disingenuous and incorrect.

Defendants argue in their Motion to Dismiss that the Supervisor of Elections cannot be 

sued under Florida law. However, this is a disingenuous argument that attempts to utilize a legal 

technicality to avoid addressing the substantive content of the Complaint in this matter. 

Defendants’ argument on this issue is premised on section 768.289(9)(a), Florida Statutes, 

which reads:

(9)(a) No officer, employee, or agent of the state or of any of its 

subdivisions shall be held personally liable in tort or named as a 

party defendant in any action for any injury or damage suffered as a 

result of any act, event, or omission of action in the scope of her or 

his employment or function, unless such officer, employee, or agent 

acted in bad faith or with malicious purpose or in a manner 

exhibiting wanton and willful disregard of human rights, safety, or 

property. However, such officer, employee, or agent shall be 

considered an adverse witness in a tort action for any injury or 

damage suffered as a result of any act, event, or omission of action 

in the scope of her or his employment or function. The exclusive 

remedy for injury or damage suffered as a result of an act, event, 

or omission of an officer, employee, or agent of the state or any 

of its subdivisions or constitutional officers shall be by action 

against the governmental entity, or the head of such entity in her 

or his official capacity, or the constitutional officer of which the 

officer, employee, or agent is an employee, unless such act or 

omission was committed in bad faith or with malicious purpose or 

in a manner exhibiting wanton and willful disregard of human 

rights, safety, or property. The state or its subdivisions shall not be 

liable in tort for the acts or omissions of an officer, employee, or 

agent committed while acting outside the course and scope of her or 

his employment or committed in bad faith or with malicious purpose 

or in a manner exhibiting wanton and willful disregard of human 

rights, safety, or property.

Case 0:20-cv-61328-AHS Document 17 Entered on FLSD Docket 11/10/2020 Page 3 of 17
§ 768.289(9)(a), Fla. Stat. (2019) (emphasis added). 

The text of the statute in question demonstrates that the Supervisor of Elections may 

properly be named as a defendant in legal proceedings. The phrase “shall be by action against the 

governmental entity” demonstrates that the Supervisor of Elections is properly named as a 

defendant in this matter, in light of Defendants’ own admission that a “supervisor of elections is 

an independent constitutional officer elected at the county level by the people of Florida.” See

Motion to Dismiss, at page 3. 

Despite Defendants’ citations to scattered case law, federal courts in Florida have 

repeatedly allowed claims brought against the Supervisor of Elections to proceed. In Kaimowitz v. 

Supervisor of Elections, 2016 U.S. Dist. LEXIS 153571 (N.D. Fla. Oct. 25, 2016), the plaintiff

filed a constitutional claim against the Alachua County Supervisor of Elections, which was 

allowed to proceed. In Rhodes v. Supervisor of Elections, 2012 U.S. Dist. LEXIS 95701 (N.D. 

Fla. 2012), the plaintiff filed a claim based on alleged discrimination against the Leon County 

Supervisor of Elections, which was allowed to proceed. 

Further, the title “Supervisor of Elections” applies both to the office itself and the person 

who serves as the Supervisor of Elections. The distinction between the person who holds the office 

and the office itself is a legal technicality. As noted supra, Defendants admitted that the Supervisor 

of Elections is “an independent constitutional officer,” and thus is sui juris. 

Nonetheless, even if this Court finds that the Supervisor of Elections is not sui juris in this 

matter, Canova should be permitted to amend his complaint to name Peter Antonacci in his official 

capacity as Broward County Supervisor of Elections as a defendant. It should be noted that Mr. 

Antonacci will be leaving the position of Supervisor of Elections in January following this 

November’s elections. 

Case 0:20-cv-61328-AHS Document 17 Entered on FLSD Docket 11/10/2020 Page 4 of 17
B. The Motion to Dismiss must be denied because Defendants incorrectly assert that 

Canova has failed to state a claim for constitutional violations.

1. Canova has properly stated a claim for violations of his constitutional rights.

Canova has a constitutional right to run as a candidate for political office in a fair election 

in which votes are properly counted. In his Complaint, Canova properly stated a claim for 

violations of his constitutional rights resulting from the improper destruction of paper ballots. 

Primarily, Federal Rule of Civil Procedure 12(b)(6) governs motions to dismiss for failure 

to state a claim upon which relief may be granted. Federal Rule of Civil Procedure 8(a)(2) requires 

that a pleading contain “a short and plain statement of the claim showing that the pleader is entitled 

to relief.” “The Court must also accept the plaintiff’s well pled facts as true and construe the 

complaint in the light most favorable to the plaintiff.” Dominguez v. Design by Nature Corp., 2008 

U.S. Dist. LEXIS 83467, at *2 (S.D. Fla. Sept. 25, 2008) (citing Caravello v. Am. Airlines, Inc., 

315 F. Supp. 2d 1346, 1348 (S.D. Fla. 2004)). 

Rule 8 allows plaintiffs “considerable leeway” in framing their complaints, but the 

Eleventh Circuit requires that plaintiffs seeking to bring claims pursuant to 42 U.S.C. § 1983 must 

allege “with some specificity the facts which make out” the claims. Keating v. City of Miami, 598 

F.3d 753, 762-63 (11th Cir. 2010) (citing GJR Invs., Inc. v. Cty. of Escambia, 132 F.3d 1359, 1367 

(11th Cir. 1998)). “In a § 1983 action, ‘a plaintiff must plead that each Government-official 

defendant, through the official’s own individual actions, has violated the Constitution.’” Id. (citing 

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). 

Canova has clearly pleaded violations of his constitutional rights in the Complaint with 

sufficient facts to support the claims. Canova was deprived of his right to candidacy by the failure 

of Defendants to conduct the election in a manner free of irregularities, which included maintaining 

the ballots for public inspection pursuant to Florida’s Public Records Act. Canova included in the 

Complaint sufficient facts to demonstrate that the actions of Defendants in destroying the paper 

Case 0:20-cv-61328-AHS Document 17 Entered on FLSD Docket 11/10/2020 Page 5 of 17
ballots from the 2016 Democratic primary election constituted a deprivation of Canova’s 

constitutional right to be a candidate in a fair election in which votes are properly counted. The 

destruction of the ballots in contravention of Florida’s Public Records Act constituted such an

attack on Canova’s candidacy that not only was his right to candidacy at the time harmed by the 

actions of Defendants, but he was likewise deterred from exercising his right to candidacy again 

in the future. Further, Canova is entitled to a presumption that his right to candidacy was further 

harmed by elections irregularities, due to Defendants’ spoliation of evidence. Defendants should 

not be allowed to simply destroy evidence of irregularities in the 2016 election to escape any 

repercussions for their actions. 

Connected to Canova’s First Amendment right to run for political office is his right, as an 

American citizen, to “free and fair elections.” See Westchester Cty. Independence Party v. 

Astorino, 137 F. Supp. 3d 586 (S.D.N.Y. 2015) (citing U.S. v. Schermerhorn, 713 F. Supp. 88 

(S.D.N.Y. 1989)). Because the government has “a compelling interest in preserving the integrity 

of its election process,” it may only take action “when necessary to ensure that elections are fair 

and honest.” Eu v. San Francisco Cty. Democratic Cent. Comm., 489 U.S. 214, 231 (1989) (citing 

Rosario v. Rockefeller, 410 U.S. 752, 761 (1973); Storer v. Brown, 415 U.S. 724, 730 (1974)). 

Actions by government officials that negatively impact the fairness of an election thus deprive a 

candidate of the First Amendment right to participate in the election. 

Further, Canova has properly pleaded a claim for violation of his Fourteenth Amendment 

rights because Defendants’ intentional destruction of ballots – depriving Canova of the ability to 

inspect and ascertain the validity of the ballots and proper counting thereof – constituted an 

“intentional” action that “erode[d] the democratic process.” Hendon v. N. Carolina State Bd. of 

Elections, 710 F.2d 177, 182 (4th Cir. 1983) (“Whether the irregularity amounts to a constitutional 

Case 0:20-cv-61328-AHS Document 17 Entered on FLSD Docket 11/10/2020 Page 6 of 17
claim depends on its severity, whether it was intentional or more of a negligent failure to carry out 

properly the state election procedures, and whether it erodes the democratic process.”). 

Defendants admit in their Motion to Dismiss that Canova was deprived of his rights under 

the Fourteenth Amendment, but argue that he had a “post-deprivation remedy” available to him in 

the form of a suit to enforce Florida’s Public Records Act. Thus, dismissal is improper, because 

Defendants admit that a deprivation of Canova’s rights occurred. Defendants are incorrect, 

however, in their assertion that there was an “adequate post-deprivation” remedy, since they appear 

to believe that a declaration that Defendants violated the Public Records Act is sufficient to remedy 

an intentional action that eroded the democratic process.

Canova likewise has properly pleaded a claim for civil conspiracy. Defendants conspired, 

by engaging in a plan to destroy the ballots and actually destroying the ballots, to deprive Canova 

of his constitutional rights. See, e.g., Ridgewood Bd. of Educ. v. N.E. ex rel. M.E., 172 F.3d 238, 

254 (3d Cir. 1999); Marchese v. Umstead, 110 F. Supp. 2d 361, 371 (E.D. Pa. 2000)). 

2. The First and Fourteenth Amendments protect Canova’s right to run for political office, as 

well as the right to participate in a fair election in which votes are properly counted.

“[T]he First Amendment . . . protects the right of citizens ‘to band together in promoting 

among the electorate candidates who espouse their political view.’” Clingman v. Beaver, 544 U.S. 

581, 586 (2005). “[T]he right to choose representatives belongs not to the States, but to the people.” 

U.S. Term Limits v. Thornton, 514 U.S. 779, 820-21 (1995). “The right of qualified voters within 

a state to cast their ballots and have them counted at Congressional elections . . . is a right secured 

by the Constitution.” U.S. v. Classic, 313 U.S. 299, 314 (1941). The Supreme Court of the United 

States has likewise found that the rights of voters and rights of political candidates are linked. See 

Bullock v. Carter, 405 U.S. 134, 143 (1972) (“[L]aws that affect candidates always have at least 

some theoretical, correlative effect on voters.”) 

Case 0:20-cv-61328-AHS Document 17 Entered on FLSD Docket 11/10/2020 Page 7 of 17
Building on the link between the right to vote and the right to run as a candidate for political 

office, courts in the Eleventh Circuit have held that the right to political candidacy is protected by 

the First Amendment. See, e.g., Whaley v. Smith, 2018 U.S. Dist. LEXIS 236746, at *5 (N.D. Fla. 

Dec. 11, 2018). The Eleventh Circuit Court of Appeals has held that the right to run for political 

office is protected by the First Amendment, subject to a “constitutional-right-versus-the-state’sinterests” analysis. Randall v. Scott, 610 F.3d 701, 713 (11th Cir. 2010). 

The very county at issue in the instant case is the one that was at the heart of the Supreme 

Court’s opinion in Bush v. Gore. See 531 U.S. 98 (2000). In Bush v. Gore, the Supreme Court 

addressed the application of the Fourteenth Amendment to the counting of ballots following the 

2000 presidential election. Throughout the opinion, the Supreme Court addressed Broward 

County’s haphazard approach to the counting of ballots. In applying the Fourteenth Amendment’s 

Equal Protection Clause to the right to vote, the Supreme Court stated that “[h]aving once granted

the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value 

one person’s vote over that of another.” Id. at 104-05. 

A case cited by Defendants cuts to the core issue in this matter: the risk that votes will go

uncounted or be improperly counted. Defendants cite Jacobson v. Fla. Sec’y of State, 2020 U.S. 

App. LEXIS 28078 (11th Cir. Sept. 3, 2020) for the proposition that such a risk would constitute 

a violation of constitutional rights for voters and political candidates. See id. at 59 (stating that “the 

risk that some votes will go uncounted or be improperly counted” is a First Amendment issue to 

be considered within the framework established by Anderson v. Celebrezze, 460 U.S. 780 (1983) 

and Burdick v. Takushi, 504 U.S. 428 (1992)) (citing Democratic Exec. Comm. of Fla. v. Lee, 915 

F.3d 1312 (11th Cir. 2019); Wexler v. Anderson, 452 F.3d 1226, 1232 (11th Cir. 2006)). In Lee, 

the Eleventh Circuit noted that “one of our most basic and cherished liberties” is “the right to vote 

Case 0:20-cv-61328-AHS Document 17 Entered on FLSD Docket 11/10/2020 Page 8 of 17
and have that vote counted.” Lee, 915 F.3d at 1324 (quoting Fla. Democratic Party v. Detzner, 

2016 U.S. Dist. LEXIS 143620, at *8 (N.D. Fla. Oct. 16, 2016)). 

The Eleventh Circuit has stated that one reason for the “stringent protection” of First 

Amendment rights is the “fear that, if these rights are not jealously safeguarded, persons will be 

deterred, even if imperceptibly, from exercising those rights in the future.” Cate v. Oldham, 707 

F.2d 1176, 1189 (11th Cir. 1983) (citing City of Long Beach v. Bozek, 31 Cal. 3d 527, 531 (Cal. 

1982)). Thus, the chilling effect of government actions on future exercises of free speech is 

likewise a consideration when analyzing the application of the First Amendment. See id.

In the instant matter, the destruction of ballots in contravention of Florida’s Public Records 

Act is a clear threat to the right to vote and have that vote counted. Lee, 915 F.3d at 1324. This 

right applies both to the voters who cast ballots in the 2016 Democratic primary election, as well 

as to the candidates who were running for office in that election. See, e.g., Randall, 610 F.3d at 

713. Not only did the destruction of the ballots – depriving members of the public, including 

Canova, of the opportunity to inspect the ballots – constitute a violation of Canova’s rights at the 

time of the destruction, but it constituted an improper chilling effect on those rights in the future. 

See, e.g., Cate, 707 F.2d 1189. Public faith in the democratic process is essential to the proper 

functioning of our system of government. See, e.g., Maryland v. Universal Elections, Inc., 862 

F.Supp. 2d 457, 467 (D. Md. 2012) (finding that attempts to suppress the votes of a minority group 

caused damage to public faith in the democratic process). 

The destruction of the ballots in the instant case in response to a properly filed public 

records request constitutes a clear threat to public trust in the democratic process. Canova was 

deprived of his right to candidacy by the failure of Defendants to conduct the election in a manner 

free of irregularities, which included maintaining the ballots for public inspection pursuant to 

Florida’s Public Records Act. 

Case 0:20-cv-61328-AHS Document 17 Entered on FLSD Docket 11/10/2020 Page 9 of 17
3. Canova is entitled to a rebuttable presumption that his constitutional rights were violated, 

based on Defendants’ destruction of the original ballots.

Defendants’ destruction of the paper ballots cast in the 2016 Democratic primary 

constituted improper spoliation of evidence that creates a rebuttable presumption that Defendants 

violated Canova’s constitutional rights. See Byrnie v. Town of Cromwell Bd. of Educ., 243 F.3d 

93, 107 (2d Cir. 2001). 

“The spoliation of evidence germane ‘to proof of an issue at trial can support an inference 

that the evidence would have been unfavorable to the party responsible for its destruction.’” Id.

(quoting Kronisch v. U.S., 150. F.3d 112, 126 (2d Cir. 1998)). Canova is entitled to a presumption 

that there were irregularities in the casting or counting of ballots during the 2016 Democratic 

primary election such that he was deprived of his right to run for political office. 

Defendants cannot deny that the improper destruction of ballots occurred. Indeed, 

Defendants cite in their motion to Canova v. Snipes, Case No. CACE 17-010904 (Fla. Broward 

Cir. Ct. May 11, 2018), in which the Circuit Court of the Seventeenth Judicial Circuit in and for 

Broward County, Florida, ruled that Snipes had violated Florida’s Public Records Act by way of 

destruction of ballots. In seeking to review the original ballots case in the 2016 Democratic primary 

election, Canova intended to ascertain whether the ballots cast in that election were properly 

submitted and recorded and that no election interference had occurred. 

It is also important to note that Defendants unquestionably violated federal statute by way 

of destruction of the ballots. Although the Seventeenth Judicial Circuit was concerned with 

Defendants’ violations of Florida statute, the federal statutes likewise require retention of ballots 

for a period after a primary election for the House of Representatives:

§20701. Retention and preservation of records and papers by 

officers of elections; deposit with custodian; penalty for violation

Every officer of election shall retain and preserve, for a period of 

twenty-two months from the date of any general, special, or 

primary election of which candidates for the office of President, 

Case 0:20-cv-61328-AHS Document 17 Entered on FLSD Docket 11/10/2020 Page 10 of 17
Vice President, presidential elector, Member of the Senate, 

Member of the House of Representatives, or Resident 

Commissioner from the Commonwealth of Puerto Rico are voted 

for, all records and papers which come into his possession relating 

to any application, registration, payment of poll tax, or other act 

requisite to voting in such election, except that, when required by 

law, such records and papers may be delivered to another officer of 

election and except that, if a State or the Commonwealth of Puerto 

Rico designates a custodian to retain and preserve these records and 

papers at a specified place, then such records and papers may be 

deposited with such custodian, and the duty to retain and preserve 

any record or paper so deposited shall devolve upon such custodian. 

Any officer of election or custodian who willfully fails to comply 

with this section shall be fined not more than $1,000 or imprisoned 

not more than one year, or both.

52 U.S.C. § 20701 (2020) (emphasis added).

Defendants allege in the Motion to Dismiss that “[t]he destruction of paper ballots had no 

impact on Plaintiff’s candidacy.” While this may be true, the destruction of the ballots made it 

impossible for Canova – or any other member of the public – to ascertain the truth of this statement.

That fact is essential to the instant matter. Canova is entitled to an adverse inference as to the 

contents of the original paper ballots, thus demonstrating that the destroyed ballots did indeed

demonstrate irregularities in the election process that Defendants’ bear the burden of rebutting. 

Clearly, dismissal is improper in light of this fact. 

By destroying the original ballots, Snipes deprived Canova of ever having the opportunity 

to assess the validity of the ballots and the election results. Due to the intentional spoliation of 

evidence by Snipes, Canova is entitled to an adverse inference as to the contents of the original 

ballots – in this case, that the ballots showed irregularities such that Canova was deprived of his 

First Amendment right to candidacy in a fair democratic election. See Byrnie, 243 F.3d at 107-08.

Broward County previously came under national scrutiny for its approach to counting ballots. See

Bush v. Gore, 531 U.S. at 105 (“Much of the controversy seems to revolve around ballot cards 

designed to be perforated by a stylus but which, either through error or deliberate omission, have 

Case 0:20-cv-61328-AHS Document 17 Entered on FLSD Docket 11/10/2020 Page 11 of 17
not been perforated with sufficient precision for a machine to count them.”). Defendants should 

not be allowed to avoid such future scrutiny by simply destroying the evidence. 

Defendants argue as well that Canova’s rights were not violated because the destruction 

occurred “more than a year after the election.” This argument simply serves to highlight the pattern 

of obfuscation and delay in which Defendants engaged while Canova attempted to obtain access 

– first by public records request, and then by litigation – to review the ballots. The original public 

records request occurred a mere four months following the election, but Defendants proceeded to 

delay for an additional six months before destroying the records in question. Defendants then failed 

to disclose the fact that the ballots had been destroyed for an additional two months. 

Defendants claim that Canova should have brought his constitutional claims as part of the 

earlier case, Case No. CACE 17-010904 in Florida’s Seventeenth Judicial Circuit. However, this 

is incorrect. Canova’s right to assert the violation of his constitutional rights did not ripen until the 

Seventeenth Judicial Circuit adjudicated the public records issue in Canova’s favor. As this Court 

is aware, the determination of ripeness for adjudication of a federal claim requires an injury that is 

actual or imminent. See Ramirez v. Texas Low-Level Radioactive Waste Disposal Auth., 28 F. 

Supp. 1019, 1021 (W.D. Tex. 1998) (citing Valley v. Rapides Parish Sch. Bd., 145 F.3d 329 (5th 

Cir. 1998)). Canova initially filed suit seeking simply to enforce his right to review the ballots 

pursuant to Florida’s Public Records Act. Only after the ballots were destroyed – and Defendants’ 

violation of the Public Records Act confirmed – did Canova’s suit for deprivation of his rights 

ripen. Further, the destruction of the ballots created a presumption of impropriety in the contents 

of the ballots that did not exist prior to that point. 

Based on the foregoing, Canova has clearly stated a cause of action upon which relief has 

been granted. Not only did Canova sufficiently outline the facts supporting his claims, but Canova 

Case 0:20-cv-61328-AHS Document 17 Entered on FLSD Docket 11/10/2020 Page 12 of 17
demonstrated that he is entitled to a presumption of wrongdoing on the part of Defendants based 

on their spoliation of the relevant evidence. 

4. Canova has properly stated a claim for violation of Article VI of the Florida Constitution.

Defendants allege in the Motion to Dismiss that Canova is not entitled to damages because 

he has alleged a violation of Article VI of the Florida Constitution. Although this claim made 

pursuant to the Florida Constitution was included in the case filed with the state court, which was 

subsequently removed to the federal court, Canova is nonetheless entitled to recover on this claim.

In the cases cited by Defendants, the rule for determining whether monetary damages are 

available based on a government agent’s violation of a constitutional right is that “the legislature 

must have enacted a general law waiving the State’s sovereign immunity for the claim.” Bradsheer 

v. Fla. Dep’t of Highway Safety & Motor Vehicles, 20 So. 3d 915, 920 (Fla. 1st DCA 2009). 

The applicable law waiving Defendants’ sovereign immunity in the instant matter is 

Florida’s Public Records Act. The Public Records Act states that “[p]roviding access to public 

records is a duty of each agency.” § 119.01(1), Fla. Stat. (2019). The Public Records Act even 

provides for civil action against a state agency for violations of the Act, including recovery of 

attorneys’ fees. See § 119.12, Fla. Stat. (2019). Because the Florida Legislature clearly intended 

for government agencies to be bound by the Public Records Act, Defendants’ violations of the Act 

in this matter constituted a waiver of any sovereign immunity as it relates to the instant action. 

C. Defendants are not entitled to qualified immunity due to their violations of Canova’s 

constitutional rights.

Defendants are not entitled to qualified immunity. Canova has properly stated a cause of 

action for violations of his constitutional rights, pursuant to 42 U.S.C. § 1983, and thus Defendants 

may not avail themselves of qualified immunity in this matter. 

Case 0:20-cv-61328-AHS Document 17 Entered on FLSD Docket 11/10/2020 Page 13 of 17
“Under the doctrine of qualified immunity, government officials acting within their 

discretionary authority are immune from suit unless the official’s conduct ‘violates ‘clearly 

established [federal] statutory or constitutional rights of which a reasonable person would have 

known.’’” Keating v. City of Miami, 598 F.3d 753, 762 (11th Cir. 2010) (quoting GJR Invs., Inc. 

v. Cty. of Escambia, 132 F.3d 1359, 1366 (11th Cir. 1998)). “To determine whether a government 

official is entitled to qualified immunity, the court first must decide whether the plaintiff has 

‘‘asserted a violation of a constitutional right at all.’’” McCormick v. City of Lawrence, 325 F. 

Supp. 2d 1191, 1200 (D. Kan. 2004) (citing Moore v. City of Wynnewood, 57 F.3d 924, 931 (10th 

Cir. 1995)).

Canova has properly stated a cause of action for violations of his constitutional rights. 

Defendants deprived Canova of his First and Fourteenth Amendment rights to participate in a fair 

election. The destruction of the ballots creates a presumption that improprieties occurred in the 

election process. Defendants are clearly not entitled to qualified immunity in this matter. Further, 

as discussed above, Defendants’ destruction of the ballots was a clear violation of federal statute: 

52 U.S.C. § 20701 (2020). Government officials are not entitled to qualified immunity in cases 

involving First Amendment violations related to the right to political speech. See, e.g., Rodriguez 

v. City of Doral, 2018 U.S. Dist. LEXIS 14645 (S.D. Fla. Jan. 30, 2018) (denying a defendant 

government official’s motion for summary judgment based on qualified immunity from a First 

Amendment claim). 

Likewise, Defendants’ intentional destruction of ballots – depriving Canova of the ability 

to inspect and ascertain the validity of the ballots and proper counting thereof – constituted an 

“intentional” action that “erode[d] the democratic process,” thus depriving Canova of his 

Fourteenth Amendment rights. See Hendon, 710 F.2d 177, 182 (4th Cir. 1983) (“Whether the 

irregularity amounts to a constitutional claim depends on its severity, whether it was intentional or 

Case 0:20-cv-61328-AHS Document 17 Entered on FLSD Docket 11/10/2020 Page 14 of 17
more of a negligent failure to carry out properly the state election procedures, and whether it erodes 

the democratic process.”).

Defendants appear to be arguing that destruction of election records to avoid public 

scrutiny is a discretionary function of their governmental roles. This would set a dangerous 

precedent, especially in light of the increasing threat of election interference. Defendants cite to 

unrelated case law concerning destruction of video and audio recordings as support for their 

argument that they are entitled to qualified immunity in this matter. Defendants attempt to reduce 

the destruction of the ballots in this matter to a violation of Canova’s rights “under Florida’s public 

records law,” attempting to minimize the far-reaching implications of allowing government 

officials to destroy elections materials to avoid public scrutiny of those materials. 

D. Canova’s Complaint should not be dismissed with prejudice. 

Even if this Court finds any of Defendants’ arguments compelling, dismissal with prejudice 

is improper. Canova is entitled to an opportunity to amend his Complaint in the instance that it is 

dismissed. 

“Ordinarily . . . a plaintiff whose original complaint has been dismissed under Rule 12(b)(6) 

should be given at least one opportunity to try to amend her complaint before the entire action is 

dismissed.” Runnion v. Girl Scouts of Greater Chi. & Nw. Ind., 786 F.3d 510, 519 (7th Cir. 2015). 

The Eleventh Circuit has likewise held that “a party must be given at least one opportunity to 

amend before the district court dismisses the complaint.” Henderson v. JP Morgan Chase Bank, 

N.A., 436 Fed. Appx. 935, 938 (11th Cir. 2011) (citing Corsello v. Lincare, Inc., 428 F.3d 1008, 

1012 (11th Cir. 2005)). 

Case 0:20-cv-61328-AHS Document 17 Entered on FLSD Docket 11/10/2020 Page 15 of 17
Defendants provide no support for their argument that the Complaint should be dismissed 

with prejudice. Thus, even if this Court finds any of Defendants’ arguments persuasive, Canova 

should be allowed an opportunity to amend the Complaint. 

CONCLUSION

Canova’s Complaint should not be dismissed. The Supervisor of Elections is a government 

official who may be sued. Canova’s Complaint properly asserted claims for violations of his First 

and Fourteenth Amendment rights. There is a rebuttable presumption that elections irregularities 

existed such that Canova’s rights were further harmed, in light of Defendants’ destruction of the 

ballots. Defendants are not entitled to qualified immunity, due to the aforementioned violations of 

Canova’s constitutional rights. Even if any of Defendants’ arguments are persuasive, Canova 

should be allowed to amend the Complaint.

WHEREFORE, Plaintiff, TIM CANOVA, respectfully requests that this Honorable Court 

enter an order denying Defendants’ Motion to Dismiss Plaintiff’s Complaint, along with any other 

such relief as this Court deems just and proper. 

CERTIFICATE OF SERVICE

I hereby certify that on November 10, 2020, I electronically filed the foregoing with the 

Clerk of the Court by using the CM/ECF system. I further certify that I mailed the foregoing 

document and the notice of electronic filing by first-class mail to the following non-CM/ECF 

participants: Brenda C. Snipes at 2726 N.W. 36th Terrace, Lauderdale Lakes, FL 33311-1826, 

Dozel Spencer at 5300 NW 74th Terrace, Lauderhill, FL 33319, and Broward Supervisor of 

Elections at 115 S. Andrews Ave., Room 102, Fort Lauderdale, FL 33301.

DUTTON LAW GROUP, P.A.

P. O. Box 260697

Tampa, Florida 33685-0697

Designated Email Service addresses:

service.CSD@duttonlawgroup.com

Case 0:20-cv-61328-AHS Document 17 Entered on FLSD Docket 11/10/2020 Page 16 of 17
service.AAS@duttonlawgroup.com

Phone: (813) 247-2222

/s/ Christopher S. Dutton

__________________________________

CHRISTOPHER S. DUTTON, ESQUIRE

Florida Bar No: 115714

ANDREW STEADMAN, ESQUIRE

# 36553 Florida Bar No. 119402

Case 0:20-cv-61328-AHS Document 17 Entered on FLSD Docket 11/10/2020 Page 17 of 17