UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No.: 20-cv-61328-SINGHAL

TIM CANOVA,

Plaintiff,

v.

BRENDA C. SNIPES, DOZEL SPENCER, 

and the BROWARD COUNTY 

SUPERVISOR OF ELECTIONS,

Defendants.

__________________________________/

ORDER ON MOTION TO DISMISS

This action arises from events that took place during and after the 2016 election 

cycle. Plaintiff Tim Canova (“Canova”) sought the Democrat Party’s nomination for the 

United States House of Representatives in the 23rd congressional district in the 2016

primary elections. According to the certified election results, he lost to the incumbent, 

Congresswoman Debbie Wasserman Schultz, by roughly 13.5%. However, the litigation 

that followed the election—including this action now over four years later—is not over the 

result itself. It is the manner in which the office of the Broward County Supervisor of 

Elections (“SOE”) and then-Supervisor of Elections, Defendant Brenda C. Snipes, 

handled Canova’s post-election challenge and, specifically, requests for information 

under Florida’s open-government laws that Canova has litigated for years. This action is 

the latest iteration. Defendants now move to dismiss the complaint. Being fully advised 

in the premises, the motion (DE [12]) is GRANTED.

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I. BRIEF BACKGROUND

Following his defeat, in early 2017, Canova’s campaign filed a formal public 

records request with the SOE, seeking records to be produced under chapter 119, Florida 

Statutes. Specifically, the campaign sought records associated with the 2016 primary 

election, including ballots. Compl. ¶ 18 (DE [1]). Canova filed a follow-up public records 

request in May 2017. Id. ¶ 19. Frustrated with the slow pace of the SOE’s compliance, 

Canova filed suit against Snipes in state court in Broward County to compel production 

of the public records under Florida’s Public Records Act1 and to declare that Snipes was 

in breach of her constitutional and statutory duties to permit access to public records. 

Id. ¶¶ 20, 22.

During discovery, Canova sought production of “various documents in relation to 

his prior public records requests.” Id. ¶ 23. However, during this period, Snipes signed 

off on the destruction of some of the public records sought by Canova. Id. ¶ 24. On 

November 6, 2017, the state court heard Canova’s motion to compel, where Canova 

learned for the first time that Snipes “personally ordered” the destruction of paper ballots 

from the 2016 primary election and that Defendant Dozel Spencer did, in fact, destroy 

them. Id. ¶ 25. With this information, Canova moved for summary judgment, arguing no 

genuine issue of material fact existed that Snipes “wrongfully certified in the authorization 

to destroy that the records . . . were not the subject of litigation.” Id. ¶ 26. The state court, 

on May 11, 2018, granted summary judgment in Canova’s favor, ruling that Snipes 

violated the Florida Public Records Act, and granted Canova attorneys’ fees. Id. ¶ 28.

1 See Fla. Stat. § 119.05.

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Canova now brings this action in federal court “seek[ing] to recover damages for 

the violations of his constitutional rights that resulted from the destruction of the 

aforementioned records.” Id. ¶ 29. He brings three counts under 42 U.S.C. § 1983 

against Defendants: (1) a violation of the First and Fourteenth Amendments; (2) a claim 

for civil conspiracy; and (3) a claim for punitive damages.

II. LEGAL STANDARD ON A MOTION TO DISMISS

“When evaluating a motion to dismiss under Rule 12(b)(6), the question is whether 

the complaint ‘contain[s] sufficient factual matter, accepted as true, to state a claim to 

relief that is plausible on its face.’” Worthy v. City of Phenix City, 930 F.3d 1206, 1217 

(11th Cir. 2019) (alteration in original) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 

(2009)); see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (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.” Worthy, 

930 F.3d at 1217. The Court is guided by the well-known principle that, on a motion to 

dismiss for failure to state a claim, the Court assumes all well-pled allegations in the 

Complaint are true and views them in the light most favorable to the plaintiff. Jackson v. 

Okaloosa Cty., 21 F.3d 1531, 1534 (11th Cir. 1994).

III. DISCUSSION

Defendants raise two basic arguments. First, they argue that SOE is not a legal 

entity with the capacity to be sued. Second, they argue that Canova has failed to state 

legal claims under the First and Fourteenth Amendments and for a civil conspiracy. The 

Court has considered each of the arguments and writes only to address the following.

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A. SOE’s Capacity to Be Sued

Defendants reference Florida’s sovereign immunity statute in arguing that SOE is 

not a legal entity with the capacity to be sued. The statute reads, in relevant part:

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.

Fla. Stat. § 768.29(9)(a) (emphasis added). They rest their argument exclusively on the 

emphasized language above. They also cite to two cases: Navarro v. City of Riviera 

Beach, 192 F. Supp. 3d 1353, 1360–61 (S.D. Fla. 2016), and Ramsay v. Broward County

Sheriff’s Office, 303 F. App’x 761, 763 n.1 (11th Cir. 2008). But neither of these cases 

supports Defendants’ position.

Neither does the emphasized language. To the contrary, Defendants’ argument 

belies the plain language of the statute. It is clear the statute insulates and protects 

“officer[s], employee[s], or agent[s] of the state or of any of [the state’s] subdivisions” from 

personal liability. That is it. In no way does it preclude a plaintiff from naming a 

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government entity as defendant in suit. In fact, the very language on which Defendants 

rely so heavily rather clearly states that the “exclusive remedy” for plaintiffs is “against 

the governmental entity, or the head of such entity in her or his official capacity.” 

Naming a government entity as a defendant is common. Indeed, even a cursory review 

of the case law shows numerous times plaintiffs have named SOE as defendant. See, 

e.g., Lopez v. Broward Cty. Supervisor of Elections, 2007 WL 9701697 (S.D. Fla. Apr. 11, 

2007). Even if Defendants’ position is that Plaintiffs are prohibited from naming SOE as 

defendant and, rather, were required to name “Joe Scott, in his official capacity as 

Supervisor of Elections of Broward County,” this again belies the plain language of the 

statute. Again, the “exclusive remedy” for plaintiffs is “against the governmental entity, 

or the head of such entity in her or his official capacity.” The Court finds no merit in this 

argument.

B. Canova’s § 1983 Claims Under the First and Fourteenth Amendments

Every person who, under color of any statute, ordinance, regulation, 

custom, or usage, of any State or Territory or the District of Columbia, 

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, shall be 

liable to the party injured in an action at law, suit in equity, or other proper 

proceeding for redress . . . .

42 U.S.C. § 1983. “To obtain relief under 42 U.S.C. § 1983, a plaintiff must meet two 

elements: (1) the conduct complained of must be committed by a person acting under 

color of state law; and (2) the conduct must deprive the plaintiff of rights or privileges 

secured by the Constitution or laws of the United States.” Walker v. Atlanta Police Dep’t

Public Affairs Unit, 322 F. App’x 809, 811 (11th Cir. 2009). “However, § 1983 is not itself 

a source of substantive rights, but merely provides ‘a method for vindicating federal rights 

elsewhere conferred.’” Booth v. City of Roswell, 754 F. App’x 834, 837 (11th Cir. 2018) 

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(quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)). Thus, “[t]he first step in a 

§ 1983 claim is to identify the specific constitutional right allegedly infringed.” Id.

In this action, Canova brings his § 1983 claim under the First and Fourteenth 

Amendments. The First Amendment provides that “Congress shall make no law 

respecting an establishment of religion, or prohibiting the free exercise thereof; or 

abridging the freedom of speech, or of the press; or the right of the people peaceably to 

assemble, and to petition the government for a redress of grievances.” U.S. Const. 

amend. I. Of the five enumerated rights, the First Amendment obviously does not 

establish some sort of right to a political candidacy. Thus, Defendants’ lengthy argument 

that Canova has not stated a First Amendment claim because he had no constitutional 

right to run for office is well taken. And it is compelling. It is clear Canova never had a 

constitutional right, the violation of which would be actionable under the First Amendment, 

to run for the U.S. House of Representatives. To hold otherwise would be entirely 

contrary to the plain language of the First Amendment. It would also be inconsistent with 

First Amendment jurisprudence. In fact, the cases Canova cites to are not only 

distinguishable, but also inapplicable. E.g., Randall v. Scott, 610 F.3d 701, 711 (11th Cir. 

2010) (involving a retaliation claim for employment termination related to candidate’s run 

for office). Even to the extent that he cites to Eu v. San Francisco County Democratic 

Central Committee, 489 U.S. 214, 231 (1989), for the position that 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, the case is inapplicable because the 

complained-of conduct here by Defendants did not deprive Canova of the right to run for 

office, but, rather, the right under Florida law to seek public records.

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Nevertheless, the case law on First Amendment claims brought under § 1983 

appears to have a unique quirk to it. As a district court in New York recognized: “In an 

election case, where a plaintiff alleges a First Amendment claim based on the violation of 

election law by state actors, rather than alleging that the election law itself is 

unconstitutional, the First Amendment analysis converges with the due process analysis.” 

Westchester Cty. Indep. Party v. Astorino, 137 F. Supp. 3d 586, 625 (S.D.N.Y. 2015). It 

appears this is precisely why Count I in the complaint incorporates both the First and the 

Fourteenth Amendments. Canova alleges that Defendants’ intentional destruction of the 

very records he sought in his public records request deprived him of certain due-process 

rights, including the ability to inspect and ascertain the validity and proper counting of the 

ballots. Thus, in the Court’s view—and consistent with other district courts’ application of 

First Amendment jurisprudence in election cases—Canova’s claim under the First 

Amendment lives and dies with his due-process claim under the Fourteenth Amendment. 

See Astorino, 137 F. Supp. 3d at 625 (“Because, for the reasons discussed above, 

[Plaintiffs'] due process claim fails, their First Amendment claim likewise fails.”). If he 

cannot state a claim under the Fourteenth Amendment, he cannot state one under the 

First Amendment, either. It is the Court’s conclusion that he cannot.

The Fourteenth Amendment provides, in relevant part, that “[n]o State shall make 

or enforce any law which shall . . . deprive any person of life, liberty, or property, without 

due process of law.” U.S. Const. amend. XIV, § 1. As Canova alleges, not only did he 

file a civil action to enforce the Florida Public Records Act, but also he successfully 

obtained summary judgment in state court. The Supreme Court has addressed situations 

similar to these, and stated rather unambiguously: “[A]n unauthorized intentional 

deprivation of property by a state [or municipal] employee does not constitute a violation 

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of the procedural requirements of the Due Process Clause of the Fourteenth Amendment 

if a meaningful post-deprivation remedy for the loss is available.” Hudson v. Palmer, 468 

U.S. 517, 533 (1984) (emphasis added); Brewer v. Pensacola Police Dep’t, 2015 WL 

8113253, at *4 (N.D. Fla. Nov. 13, 2015) (“Because plaintiff has an adequate state law 

remedy to address defendant Baer's alleged failure to provide her with an unedited video, 

she cannot establish Baer's actions violated her due process rights under the Fourteenth 

Amendment.”). Like in Hudson and Brewer, Canova not only had post-deprivation 

remedies available to him, but he also used them and obtained judgment in his favor.

C. Canova’s Claim for Civil Conspiracy

To state a claim for civil conspiracy under § 1983, a plaintiff must allege (1) a 

violation of his federal rights under color of law; (2) an understanding among the 

defendants to violate those rights; and (3) an actionable harm as a result of the 

conspiracy. Grider v. City of Auburn, 618 F.3d 1240, 1260 (11th Cir. 2010). Under Florida 

law a “civil conspiracy requires: (a) an agreement between two or more parties, (b) to do 

an unlawful act or to do a lawful act by unlawful means, (c) doing of some overt act in 

pursuance of the conspiracy, and (d) damage to plaintiff as a result of the acts done under 

the conspiracy.” Raimi v. Furlong, 702 So. 2d 1273, 1284 (Fla. 3d DCA 1997).

2

Defendants argue that Canova’s allegations are cursory and insufficient. He 

seems to allege that Snipes and Spencer, both government agents of SOE, and SOE 

conspired to deprive him of his constitutional rights. “An allegation of parallel conduct 

and a bare assertion of conspiracy will not suffice. Without more, parallel conduct does 

2 Defendants point out that it is unclear whether Canova alleges a civil conspiracy under federal law or 

under Florida law.

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not suggest conspiracy, and a conclusory allegation of agreement at some unidentified 

point does not supply facts adequate to show illegality.” Twombly, 550 U.S. at 556–57. 

However, the deficiencies in Canova’s allegations are more than mere pleading; 

they are fatal. Defendants argue the well-known intracorporate conspiracy doctrine bars 

Canova’s claim as a matter of law. Simply, a corporation (or, for this matter, a public 

entity) cannot conspire with its employees, and its employees, when acting in the scope 

of their employment, cannot conspire among themselves. Grider, 618 F.3d at 1261; 

Denney v. City of Albany, 247 F.3d 1172, 1190 (11th Cir. 2001). There is no plausible 

way to construe Canova’s allegations as any way other than Snipes, Spencer, and SOE 

conspiring among themselves. This is simply not actionable.

IV. CONCLUSION

Defendants’ Motion to Dismiss the Complaint (DE [12]) is GRANTED, and this 

action is DISMISSED WITH PREJUDICE. The heart of Canova’s claims does not 

implicate causes of action no matter how many times he is afforded to amend. The Clerk 

of Court is directed to CLOSE this case and DENY AS MOOT any pending motions.

DONE AND ORDERED in Chambers, Fort Lauderdale, Florida, this 18th day of 

March 2021.

Copies to counsel via CM/ECF

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