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IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

MATHEW SELOVER,

Plaintiff,

v. Case No.: 3-20-CV-04698-TKW-HTC

ESCAMBIA COUNTY BOARD

OF COUNTY COMMISSIONERS; 

and RAYME EDLER,

Defendants. 

_________________________________/

DEFENDANT ESCAMBIA COUNTY BOARD OF COUNTY 

COMMISSIONER’S MOTION TO DISMISS COUNTS 

I, III, AND V OF PLAINTIFF’S COMPLAINT

Defendant, ESCAMBIA COUNTY BOARD OF COUNTY 

COMMISSIONERS (the “County”), hereby moves to dismiss Counts I, III, and V 

of Plaintiff, MATHEW SELOVER’S, Complaint. [D.E. 1 at Exhibit B] (“Compl.”).

I. INTRODUCTION AND SUMMARY OF ARGUMENTS

On January 17, 2020, Plaintiff filed a five-count Complaint against Escambia 

County Board of County Commissioners and Dr. Rayme Edler (“Dr. Edler”) in the 

Circuit Court for Florida’s First Judicial District in and for Escambia County. [D.E. 

1 at Exhibit “B”]. On March 11, 2020, the County filed a Notice of Removal of 

Plaintiff’s Complaint to this Court. [D.E. 1]. In the Complaint, Plaintiff attempts to 

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allege violations of 42 U.S.C. § 1983, the First Amendment, the Fourteenth 

Amendment, and the Florida Private Whistleblower’s Act.

Specifically, of the five (5) counts asserted in Plaintiff’s Complaint, three (3)

are against the County: Count I—Violation of Plaintiff’s Fourteenth Amendment 

Due Process Rights, Count III—Unlawful Retaliation in Violation of the First and 

Fourteenth Amendments pursuant to 42 U.S.C. § 1983, and Count V—Unlawful 

Retaliation Pursuant to Florida Statute § 448.102. The County moves to dismiss 

Plaintiff’s Counts I, III, and V because they fail to state a claim upon which relief 

can be granted. 

As an initial matter, in Count V1, Plaintiff impermissibly attempts to hold the 

County liable for violations of Florida Statute § 448.102. This statute is the private 

sector Whistle-blower’s Act. See Arrow Air, Inc. v. Walsh, 645 So.2d 422, 423 

(Fla.1994) (stating that the purpose of § 448.102 is to “protect private employees 

who report or refuse to assist employers who violate laws enacted to protect the 

public.”) (emphasis added); Wallace v. Sch. Bd. of Orange County, Fla., 41 F. Supp. 

2d 1321, 1331 (M.D. Fla. 1998). Florida’s Private-Sector Whistleblower Act covers 

employees who work in the private sector and are employed by 

any private individual, firm, partnership, institution, corporation, or association. §

1 As to Count V, the County submits that this Court possesses supplemental jurisdiction for Count V under 28 U.S.C. 

§ 1367(a) because the facts and circumstances central to Count V arise from the same operative facts that are in Counts 

I and III. Accordingly, this Court has jurisdiction over Count V of Plaintiff’s Complaint.

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448.101, Fla. Stat. (emphasis added). As such, Florida Statute § 448.102 does not 

apply to governmental entities and does not apply to the County. Id. Accordingly, 

Plaintiff’s private sector Whistleblower’s Act claim (Count V) should be dismissed 

with prejudice. 

In addition, Plaintiff’s §1983 claims against the County for violation of

Plaintiff’s due process rights under the 14th Amendment (Count I) and unlawful 

retaliation in violation of the First Amendment (Count III) fail to allege any facts 

whatsoever that would subject the County to liability since Plaintiff fails to establish 

there was a policy, practice, or custom that was the moving force of any alleged 

constitutional violation. 

Plaintiff has merely attempted to hit a few of the “buzzwords” to bring a claim 

under the theory of municipal liability, but has offered nothing more than naked 

assertions surrounded by irrelevant facts to support those claims. Municipalities 

have only limited liability for alleged constitutional violations, and specific facts 

must be alleged to support such a claim. See Monell v. Dep't of Soc. Services of City 

of New York, 436 U.S. 658 (1978); City of Canton v. Harris, 489 U.S. 378, 385 

(1989). Furthermore, Plaintiff has failed to establish that his subject speech was 

protected by the First Amendment. As explained in more detail below, Plaintiff’s 

Counts I and III fail to satisfy even the most liberal pleading standards and therefore 

should be dismissed. 

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Finally, Plaintiff’s allegations relating to an alleged violation of procedural 

due process are vague, conclusory, and fail to specify the due process that Plaintiff

was allegedly not afforded. In his Complaint, Plaintiff alleged that he was not 

afforded adequate notice for the quality assurance meeting on April 23, 2019. 

However, Plaintiff failed to assert specific allegations indicating why he was entitled 

to due process for said meeting. Indeed, Plaintiff’s own admission indicated that he 

was not disciplined nor reprimanded at the April 23, 2019, meeting. Moreover, 

Plaintiff’s own allegations establish that the City did not demote him or agree to any 

disciplinary action against him. See Compl. at ¶¶ 42, 45, 52. Although Plaintiff

alleges Edler recommended demotion and termination, the allegations establish that 

these events never occurred. Id.

Further, Plaintiff failed to allege that he followed the Collective Bargaining 

Agreement’s (“CBA”), policies and procedures for filing a grievance. The CBA 

contains certain grievance procedures that Plaintiff must follow, and the CBA and 

the County’s policies and procedures grant Plaintiff the right to appeal a disciplinary 

action against him. However, Plaintiff failed to allege any specific facts indicating 

that he exhausted these administrative remedies before initiating this lawsuit. See 

generally, Compl. Consequently, Plaintiff has not suffered a procedural due process 

violation.

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For these reasons, Plaintiff’s Complaint asserts barebones allegations that fail 

to meet established pleading standards and fail to state a claim as to Counts I, III, 

and V.

II. FACTUAL BACKGROUND

Plaintiff alleges that Escambia County Board of County Commissioners is a 

local government entity which governs the County of Escambia, in the state of 

Florida. Compl. at ¶ 2. Plaintiff began working for Escambia County in February 

2012. Compl. at ¶ 4. At all times material hereto, Plaintiff was subject to the 

collective bargaining agreement between the County and the International 

Association of EMTs and Paramedics. Id. at ¶ 9. On April 23, 2019, Plaintiff 

attended a non-disciplinary meeting with his union representative, Ivey Lett. Id. at 

¶¶ 16, 20, and 26. 

Shortly after the QA meeting, Plaintiff filed a complaint with HR against 

Defendant Edler, and allegedly expressed concerns with the QA meeting. Compl. 

at ¶ 28. In particular, Plaintiff alleged that he complained that he did not have 

adequate notice of the meeting and that the QA board was not impartial. Id. He 

further alleged that he complained that Dr. Edler brought up matters that were 

almost a year old and/or were already resolved, the QA board was not comprised of 

representatives who usually serve on the board, and that he believed that the board 

was called in retaliation for Plaintiff reporting Frando and Owens. Id.

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On May 13, 2019, Dr. Edler allegedly declared that Plaintiff was unable to 

work as a paramedic under her license. Id. at ¶ 31. On May 15, 2019, Selover was 

placed on administrative duty. Id. at ¶ 35. The Interim Public Safety Director, John 

Dosh, (“Dosh”) advised Defendant Edler to provide a Performance Improvement 

Plan (“PIP”) for Selover. Id. at ¶ 41. However, Plaintiff alleges that rather than 

provide a PIP, Defendant Edler recommended first that Plaintiff be demoted to an 

Emergency Medical Technician (“EMT”), and then that Plaintiff be terminated. Id. 

Significantly, it was determined that Edler did not have the authority to demote, 

terminate, or otherwise discipline Plaintiff. Id. at ¶ 42. Moreover, although Plaintiff 

alleges that Edler attempted to demote him, it is clear that Plaintiff was never 

demoted and remained in his position as a paramedic. Id. at ¶ ¶ 41, 45. 

III. ARGUMENT & MEMORANDUM OF LAW

A. Motion to Dismiss Standard

In reviewing a motion to dismiss, the Court must accept the factual allegations 

of the complaint as true and must draw all reasonable inferences in favor of the 

plaintiff. Erickson v. Pardus, 551 U.S. 89 (2007). However, “[t]o survive a motion 

to dismiss, a [c]omplaint 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)). “While 

a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed 

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factual allegations, a plaintiff's obligation to provide the grounds of his entitlement 

to relief requires more than labels and conclusions, and a formulaic recitation of the 

elements of a cause of action will not do.” Puig v. Miami-Dade County, 09-20822-

CIV, 2010 WL 1631896, at *1 (S.D. Fla. Jan. 13, 2010) (citing Bell Atl. Corp. v. 

Twombly, 550 U.S. 544, 561 (2007). 

As the Supreme Court explained in Ashcroft v. Iqbal, “the tenet that a court 

must accept a complaint’s allegations as true is inapplicable to threadbare recitals of 

a cause of action’s elements, supported by mere conclusory statements.” Ashcroft v. 

Iqbal, 556 U.S. at 678. Therefore, legal conclusions couched as factual allegations 

are not sufficient to state a claim. See Twombly, 550 U.S. at 555.

“In deciding a Rule 12(b)(6) motion to dismiss, the Court limits its 

consideration to well-pleaded factual allegations, documents central to, or 

referenced in, the complaint, and matters judicially noticed.” Securities and 

Exchange Commission v. Kingdom Legacy General Partner, LLC, 2017 WL 

417093, at *4 (M.D. Fla. Jan. 31, 2017) (citing La Grasta v. First Union Sec., Inc., 

358 F.3d 840, 845 (11th Cir. 2004)); see also Tellabs, Inc. v. Makor Issues & Rights, 

Ltd., 551 U.S. 308, 322 (2007)(“courts must consider the complaint in its entirety, 

as well as other sources courts ordinarily examine when ruling on Rule 12(b)(6) 

motions to dismiss, in particular documents incorporated into the complaint by 

reference, and matters of which a court may take judicial notice.”) 

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B. Plaintiff’s Counts I and III Should be Dismissed because Plaintiff cannot 

Establish Municipal Liability

As an initial matter, Counts I and III require Plaintiff to first establish 

municipal liability pursuant to 42 U.S.C. § 1983. Critically, in order to establish a 

due process violation or first amendment retaliation in violation of § 1983, municipal 

liability must be established because both claims attempt to hold the County liable 

for the actions of its employees. It is well settled that a municipality, such as the 

County, may not be held vicariously liable for the acts of its employees under 42 

U.S.C. § 1983. See Monell v. Dep’t of Soc. Services of City of New York, 436 U.S. 

658 (1978); City of Canton v. Harris, 489 U.S. 378, 385 (1989). 

Rather, to state a claim against the County under Section 1983, Plaintiff must 

allege he suffered a deprivation of his rights pursuant to an official policy or custom 

of the County. Id. at 694; see also Brown v. City of Fort Lauderdale, 923 F.2d 1474, 

1479 (11th Cir. 1991) (“It is well established that a municipality may be held liable 

under § 1983 only when the deprivation at issue was undertaken pursuant to city 

‘custom’ or ‘policy,’ and not simply on the basis of respondeat superior.”); 

DeMartini v. Town of Gulf Stream, 942 F.3d 1277, 1307 n.21 (11th Cir. 2019) (“[A]ll 

plaintiffs who sue a municipality under [section] 1983 must show that execution of 

the municipality’s policy or custom caused the alleged injury.”) Cannon v. Macon 

County, et al., 1 F 3d 1558, 1565 (11th Cir. 1993) (affirming dismissal of complaint 

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against a county where there were no allegations of facts to indicate that the alleged 

violation of due process rights resulted from a county policy or practice).

Municipal liability is limited to acts the municipality has officially sanctioned 

or ordered. Carter v. City of Melbourne, Fla., 731 F.3d 1161, 1166 (11th Cir. 2013); 

Pembaur v. City of Cincinnati, 475 U.S. 469, 480, (1986). In order to determine 

whether a policy or action represents official municipal policy, the court must 

determine whether the decision at issue was made by “those officials or 

governmental bodies who speak with final policymaking authority for the local 

governmental actor concerning the action alleged to have caused the particular 

constitutional or statutory violation at issue.” Jett v. Dallas Indep. Sch. Dist., 491 

U.S. 701, 737 (1989). Here, Plaintiff’s Counts I and III fail because he has failed to 

allege that he suffered a deprivation of his rights pursuant to an official policy or 

custom of the County.

C. Plaintiff fails to Identify an Unlawful official Policy, Practice, or Custom

of the County 

To state a §1983 claim against a municipality, a plaintiff must show: “(1) that 

[his] constitutional rights were violated; (2) that the municipality had a custom or 

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

the policy or custom caused the violation.” McDowell v. Brown, 392 F.3d 1283, 1289 

(11th Cir. 2004). “Liability arises when a municipal “custom” or “policy,” either 

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formal or informal, condones employee misconduct.” Howard v. City of 

Robertsdale, 168 Fed. Appx. 883, 890 (11th Cir. 2006). 

It appears that Plaintiff is attempting to establish that the County has a “pattern 

and practice of violating the [employee discipline and retaliation] policies and 

refusing to adhere to the policies. Compl. ¶ 59. However, the Complaint is devoid 

of any specific facts which would establish that there is such long established 

practice or custom of not following their own policy in the imposition of discipline. 

Id. at ¶¶ 36, 60, 64. However, “liability can still be imposed on a municipality based 

on “governmental ‘custom’ even though such a custom has not received formal 

approval through the body’s official decision-making channels.” See Griffin v. City 

of Opa-Locka, 261 F.3d 1295, 1308 (11th Cir. 2001).

The Eleventh Circuit has recognized two situations giving rise to an informal 

custom or policy. Griffin v. City of Opa-Locka, 261 F.3d 1295, 1308 (11th Cir. 

2001). The first is when a practice is so widespread that it “is so permanent and well 

settled as to constitute a ‘custom or usage’ with the force of law.” Id. It has long 

been the rule that only a “long-standing and widespread practice” will be deemed 

authorized by policymakers, sufficient to give rise to municipal liability. Brown v. 

City of Ft. Lauderdale, 923 F.2d 1474, 1481 (11th Cir. 1991). The second is when a 

municipality fails to correct constitutionally offensive actions of its employees and 

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tacitly authorizes employee misconduct or displays deliberate indifference towards 

it. Id.

i. Plaintiff fails to allege a Widespread Pattern or Policy that was the 

Moving Force behind the Alleged Constitutional Deprivation 

In the instant matter, Plaintiff fails to sufficiently allege that he was deprived 

of a constitutional right; however, even if he was deprived of a right, the Complaint 

fails to show that the County’s customs, policies, or practices were the moving force 

that caused the alleged constitutional deprivation. In the Complaint, Plaintiff 

alleges—in a conclusory fashion—that the County has a “long history of ignoring 

ECBCC policies and procedures regarding discipline, retaliation, and complaints”

and a “pattern and practice of ignoring their HR policies and procedures, burying 

complaints in the Emergency Medical Services, and protecting Dr. Edler.” Compl. 

at ¶¶ 65-66. 

However, these allegations are nothing more than more than mere conclusory 

statements unsupported by facts that fail to establish municipal liability. Id. at ¶ 65 

(a)-(d); See Bing v. Landreville, 3:16-CV-1140-J-34JRK, 2018 WL 1121610, at *5 

(M.D. Fla. Mar. 1, 2018). Plaintiff cannot rely solely upon his own alleged 

constitutional violation as proof of a widespread practice, even where multiple 

governmental employees were involved in his alleged deprivation. Craig v. Floyd 

County, Ga., 643 F.3d 1306, 1310-11 (11th Cir. 2011) (“A pattern of similar 

constitutional violations ... is ‘ordinarily necessary.”’) 

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For example, in support of his Complaint, Plaintiff alleges the following 

allegations to establish a policy, custom, or practice of the County:

Defendant ECBCC has expressly admitted failure to follow its own 

policies and procedures, has indicated to management personnel that it 

requires assurances that policies and procedures are being followed...

In or about April 2018, Defendant ECBCC expressly admitted it needed 

to revise its policies and procedures because same was not being 

followed, yet Defendant ECBCC has failed to take proper action to 

demand compliance;

There are at least five other instances since May 2018, when Edler 

assumed her position, wherein Defendants failed to give the employee 

proper notice, failed to timely investigate, and failed to abide by the 

escalating disciplinary process;

Since 2018, at least 5 other complaints were filed against Defendant 

Edler. In each of those Complaints, the Defendants have failed to follow 

their HR/grievance/hostile work environment policies. In each of these 

5 Complaints, the Defendants have effectively buried the complaints, 

failed to issue opinions on the complaints, and, based on information 

and belief, failed to properly inform the complainant of the status or 

finding of the complaint. Like the Plaintiff’s complaint, these other 5 

complaints were against Defendant Edler. Further, like the Plaintiff, 

the Defendant Edler subsequently filed a complaint with the DOH 

against all of those that filed a complaint against her.2

Compl. at ¶¶ 65(a)-(d).

With respect to failing to follow policies in general, the allegations are not 

sufficient to establish a widespread practice of failing to adhere to policies that result 

in actual constitutional violations. Compl. ¶ 65(a)-(b). Specifically, these 

2

It should be noted that four (4) of the individuals that allegedly filed complaints against Edler were arrested after a 

year long investigation into falsification of official records.

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allegations fail to speak to the types of policies that the County allegedly violated. 

Accordingly, these alleged policies are not identified, referenced, or otherwise 

incorporated into the Complaint and the Court is left to interpret what policies 

Plaintiff was referring to. These vague assertions could mean a plethora of different 

types of policies that might be completely unrelated to the subject action and that 

fail to establish constitutional violations. Id. As such, these allegations fail to 

support Plaintiff’s claim there was a widespread practice or policy of the County. 

Furthermore, Plaintiff’s allegations that there are five (5) other instances

wherein Defendants failed to give the employee proper notice, failed to timely 

investigate, and failed to abide by the escalating disciplinary process also fails to 

establish there was a widespread practice or policy of the County. Id. Significantly, 

the Complaint fails to provide any other information as to whether these alleged five 

(5) instances relate to five (5) separate employees or whether they relate to Plaintiff. 

Id. at 65 (c)-(d). 

Additionally, none of these alleged instances identified by Plaintiff “establish 

a pattern of ignoring the ECBCC policies and procedures” and there are no 

allegations that the prior alleged incidents were determined to be unjustified or 

unconstitutional. Id. In fact, the instances Plaintiff relies on accentuates Plaintiff’s 

pleading deficiencies. Plaintiff fails to identify whether the alleged employee(s)

identified in paragraph 65(c) were entitled to due process, were not provided due 

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process, and the specific discipline the employee(s) allegedly received without 

notice. Id. There is no indication or facts to support that due process rights of any 

of the employee(s) were violated. Id. at ¶ 65.

Critically, none of Plaintiff’s allegations establish that any alleged violation 

of Plaintiff’s alleged constitutional rights were a result of the County’s alleged 

widespread practice or policy to “ignore policies and procedures.” Compl. ¶¶ 1-89. 

In Pozdol v. City of Miami, the court held the only reason the plaintiff was able to 

establish a causal connection between the alleged constitutional violations and the 

alleged policy was because the plaintiff attached a letter from the U.S. Department 

of Justice to his response, which provided a detailed history of widespread abuse of 

constitutional violations by the Miami Police force in the immediate three prior 

years. 996 F.Supp. 2d 1290, 1299 (S.D. Fla. 2014). However, the court noted without 

the letter, the mere conclusory allegations that the department used excessive force 

would have been insufficient to establish a practice, policy, or custom of the City of 

Miami. Id. (emphasis added).

Similarly, here, Plaintiff’s Complaint fails to allege a widespread practice, 

policy, or custom that was a moving force behind Plaintiff’s alleged constitutional 

deprivation of due process or which was the moving force behind the alleged 

unlawful retaliation. Without more, Plaintiff’s bare-bones allegations regarding “5 

other instances” fails to plead sufficient facts to establish that there was a widespread 

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policy that was adopted by the County or a final policy maker to establish municipal 

liability. See generally Compl. 

In fact, the Complaint establishes that Plaintiff was not demoted, he remained 

in the position of paramedic, and there was no final policy maker of the County that 

ratified or endorsed any alleged unconstitutional violation. See generally Compl.; 

See also Exhibit C attached to the Complaint (referring to plaintiff as “Paramedic 

Selover”). As such, Plaintiff cannot establish municipal liability and Counts I and 

III must be dismissed.

D. Count I Should be Dismissed because Plaintiff cannot Establish a Violation 

of Due Process

“[A] § 1983 claim alleging a denial of procedural due process requires proof 

of three elements: (1) a deprivation of a constitutionally-protected liberty or property 

interest; (2) state action; and (3) constitutionally-inadequate process.” Grayden v. 

Rhodes, 345 F.3d 1225, 1232 (11th Cir. 2003) (citing Cryder v. Oxendine, 24 F.3d 

175, 177 (11th Cir.1994)). A property interest in employment can be created via 

ordinance or contract but in either case, the sufficiency of the claim rests with 

reference to state law. See Bishop v. Wood, 426 U.S. 341, 344 (1976) (holding that 

North Carolina state law governed whether a public employee had a property interest 

in their job). “Property interests, of course, are not created by the Constitution. 

Rather, they are created and their dimensions are defined by existing rules or 

understandings that stem from an independent source such as state law rules or 

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understandings that secure certain benefits and that support claims of entitlement to 

those benefits.” Board of Regents v. Roth, 408 U.S. 564, 577 (1972).

Indeed, Florida has explained that “Public employment is a constitutionally 

protected property interest.” Joshua v. City of Gainesville, 768 So.2d 432, 439 (Fla. 

2000); see also Hudson v. City of Riviera Beach, 982 F.Supp.2d 1318 (S.D. Fla. 

2013) (analyzing Florida law and finding that public employee had a property 

interest in his employment with the City based on his union contract and that 

employee had a right to an administrative hearing before discharge); see also Metro. 

Dade County v. Sokolowski, 439 So.2d 932, 934 (Fla. 3d DCA 1983) (holding that 

that Miami-Dade County code ordinance 2-47 afforded police officers entitlement 

to a constitutionally protected property interest). 

Upon confirmation that a due process interest exists, and when a procedural 

due process violation has been alleged, the analysis becomes what type of procedural 

due process is required. See Mathews v. Eldridge, 424 U.S. 319, 333 (1976) (quoting 

Armstrong v. Manzo, 380 U.S. 545, 552 (1965) and holding that the fundamental 

requirement of procedural due process is the opportunity to be heard “at a 

meaningful time and in a meaningful manner.”). The Eldridge Court explained, 

however, that only “‘some form of hearing’ is required before an individual is finally

deprived of a property interest.” See id. (quoting Wolff v. McDonnell, 418 U.S. 539, 

557-558 (1974)). By extension, “(D)ue process is flexible and calls for such 

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procedural protections as the particular situation demands.” Id., at 334 (quoting

Morrissey v. Brewer, 408 U.S. 471, 481 (1972)). Furthermore, a procedural due 

process violation is not complete “unless and until the state refuses to provide due 

process.” McKinney v. Pate, 20 F.3d 1550, 1561 (11th Cir. 1994) (quoting Zinermon

v. Burch, 494 U.S. 113, 123 (1990)). 

“The state is obligated only to make available ‘the means by which [the 

employee] can receive redress for the deprivations.’” Id. (quoting Schaper v. City of 

Huntsville, 813 F.2d 709, 715–16 (5th Cir. 1987) (quoting Parratt v. Taylor, 451 

U.S. 527, 543 (1981)). Indeed, “[a]ll that due process requires, the Court said, is a 

post-deprivation ‘means of redress for property deprivations satisfying the 

requirements of procedural due process.” Id. (quoting Parratt, 451 U.S. at 537); see 

also Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542 (1985) (explaining 

that a post-deprivation hearing is likely sufficient to satisfy due process when a 

property interest less significant than an individual’s livelihood is involved). 

Here, Plaintiff alleged in his Complaint that he was given only fifteen minutes 

notice of the April 23, 2019, meeting, that he was not given an opportunity to 

respond to the matters discussed at that meeting, that he was not given proper notice 

of the alleged discipline against him, and that he was not afforded an opportunity to 

challenge the discipline allegedly imposed against him. See Compl. at ¶ 28, 86(a), 

& 86(e). Further, despite never being “formally accused” of wrongdoing, Plaintiff 

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alleges that on May 15, 2019, he was informed that he could not work as a 

paramedic, was placed on administrative duty, was not allowed to work overtime, 

and as a result, he suffered a loss of seniority, he missed out on significant overtime 

payment, and opportunities for career advancement. See id. at ¶ 34-35, 58, & 67. 

However, Plaintiff’s Complaint fail to provide any specific, factual allegations 

to support his contention that he suffered a due process violation. In fact, some of 

Plaintiff’s own admissions and exhibits attached to the Complaint contradict his 

allegations that he suffered a procedural due process violation. For example, the 

Complaint fails to identify, elaborate, or otherwise explain what the term “formally 

accused” means; the Complaint also fails to indicate how Plaintiff was informed that 

he was allegedly being disciplined. 

Likewise, the Complaint is devoid of any specific factual allegations 

identifying what job duties Plaintiff had before and after being allegedly placed on 

administrative duty. Compl. at ¶¶ 34,35, 42. In addition, the Complaint fails to plead 

any facts indicating the amount of overtime hours that Plaintiff worked before being 

placed on administrative duty. Id. at ¶¶34, 35, and 42.

Further, Plaintiff’s allegations that only fifteen minutes notice before the April 

23, 2019, meeting was insufficient and that he had no opportunity to respond are 

superfluous. Indeed, Plaintiff admitted that he was aware of the matters that were 

discussed at that meeting because he plead that the matter discussed were almost a 

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year old or had already been resolved. See id. at ¶ 28. By Plaintiff’s own admission, 

he had already been informed and was otherwise aware of the matters that were 

discussed at the April 23, 2019, meeting. See id. What’s more, Plaintiff either had 

ample opportunity to respond to same because the matters were almost a year old or 

Plaintiff already responded to same because the matters were resolved. Id.

However, even if the Court finds that such notice and opportunity to respond 

were insufficient, Plaintiff’s own admission refutes any alleged procedural due 

process violation relating to the April 23, 2019, meeting because Plaintiff was 

advised that the meeting was non-disciplinary in nature. Id. at ¶19. It is an axiomatic 

principle of law that only “some form of hearing” is required before an individual is 

finally deprived of a property interest. See Eldrige, 424 U.S. 333 (1976). 

Here, Plaintiff was given a hearing to discuss matters that he had already been 

informed of or was otherwise aware of for almost one year or that had already been 

resolved. Further, he was not deprived, in any capacity, of his job while at the April 

23, 2019, meeting because same was non-disciplinary. By extension, even if this 

meeting was disciplinary, Plaintiff was given ample time to respond to the matters 

discussed at the April 23, 2019. Indeed, Plaintiff had known about these matters for 

almost a year and waited until May 1, 2019, to respond via his human resources 

complaint. See Compl. at ¶ 28. Consequently, any allegation that Plaintiff suffered a 

procedural due process violation as to the April 23, 2019, meeting is without merit. 

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In addition, any allegations that Plaintiff suffered a procedural due process 

violation as to the discipline that he was informed of on May 15, 2019, are likewise 

without merit. Although Dr. Edler and other representatives of Escambia County 

met on May 13, 2019, to discuss the May 1, 2019, human resources complaint filed 

by Plaintiff and Plaintiff was not notified of such meeting before Plaintiff was 

allegedly disciplined on May 15, 2019, Plaintiff did not suffer a procedural due 

process violation because he had appellate rights available to him under the County 

Commissioners Policies and Procedures and the Collective Bargaining 

Agreement—both of which are attached to the Complaint. See Compl. At Ex. D & 

Ex. E.

Notably, Plaintiff alleges in his Complaint that he was not afforded an 

opportunity to challenge the discipline that was imposed against him. See Compl, at 

¶ 86(f). Yet, Exhibits D and E attached to the Complaint contradict this allegation 

directly. Tellingly, whenever a discrepancy exists between the allegations in a 

pleading and the supporting exhibits attached thereto, the exhibits control to resolve 

any discrepancies. See Griffin Indus., Inc. v. Irvin, 496 F.3d 1189, 1205–06 (11th 

Cir.2007) (“[W]hen the exhibits contradict the general and conclusory allegations of 

the pleading, the exhibits govern.”).

Here, the County Commissioners’ human resources policies and procedures 

specifically provide the Plaintiff rights to appeal any discipline against him that 

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could result in adverse action under either the Merit System Protection Board with 

Escambia County or the Plaintiff’s rights under the collective bargaining agreement. 

See Compl. Ex. D, ¶ 72, § 23.5. Indeed, the collective bargaining agreement contains 

its own separate and distinct procedures for which Plaintiff has an opportunity to file 

a grievance and appeal the alleged discipline against him. See Compl., Ex. E, Art. 5. 

However, Plaintiff’s Complaint is devoid of any factual allegations that he 

availed himself, or attempted to avail himself, to the rights available to him under 

either the County Commissioners’ policies and procedures or the grievance 

procedures under the collective bargaining agreement before he initiated formal 

litigation against the County. See generally Compl. 

Although exhaustion of administrative remedies is not a prerequisite to state 

a claim for a procedural due process violation, a procedural due process violation is 

not complete “unless and until the state refuses to provide due process.” McKinney,

20 F.3d at 1561 (11th Cir. 1994) (quoting Burch, 494 U.S. at 123). “The state is 

obligated only to make available ‘the means by which [the employee] can receive 

redress for the deprivations.’” Id. (quoting Schaper, 813 F.2d at 715–16 

(quoting Parratt 451 U.S. at 543 (1981)). 

Indeed, “[a]ll that due process requires, the Court said, is a post-deprivation 

means of redress for property deprivations satisfying the requirements of procedural 

due process.” Id. (quoting Parratt, 451 U.S. at 537); see also Loudermill, 470 U.S. 

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at 542 (explaining that a post-deprivation hearing is likely sufficient to satisfy due 

process when a property interest less significant than an individual’s livelihood is 

involved). 

Here, via its policies and procedures, and by extension, the CBA, the County 

has given Plaintiff not one, but two means of redress for alleged property 

deprivations. See Compl., Exhibit D, ¶ 72, section 23.5; see also Compl., Exhibit E, 

Art. 5. Given that the County has provided Plaintiff with these means of redress for 

his alleged demotion, the County has complied with their constitutional 

requirements to provide Plaintiff sufficient procedural due process. See Loudermill, 

470 U.S. at 542 (explaining that a post-deprivation hearing is likely sufficient to 

satisfy due process when a property interest less significant than an individual’s 

livelihood is involved). 

Consequently, because the Complaint is devoid of any allegations indicating 

that Plaintiff has availed himself to either of these means of redress and that neither 

were effective to provide the relief he sought, Plaintiff has failed to state a claim for 

a procedural due process violation against the County.

E. Plaintiff’s Count III Should be Dismissed as Plaintiff Does Not Allege Any 

Speech that Constitutes a matter of Public Concern to Establish First 

Amendment Protection 

As a government employee, Plaintiff does not enjoy an absolute right to 

freedom of speech. See Bryson v. City of Waycross, 888 F.2d 1562, 1565 (11th 

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Cir.1989) (“Although the law is well-established that the state may not demote or 

discharge a public employee in retaliation for speech protected under the first 

amendment, a public employee’s right to freedom of speech is not absolute.”). “To 

establish a prima facie case of First Amendment retaliation, the employee must show 

that (1) his speech relates to a matter of public concern, (2) his free speech interests 

outweigh the public employer’s interest in efficiently fulfilling its responsibilities, 

and (3) the speech played a substantial or motivating role in the employer’s decision 

to take the adverse action.” Smith v. City of Tallahassee, 789 Fed. Appx. 783, 786-

787 (11th Cir. 2019).

For speech to rise to the level of public concern, the government employee’s 

speech must “‘relat[e] to any matter of political, social or other concern to the 

community.’” Stanley v. City of Dalton, Ga., 219 F.3d 1280, 1288 (11th Cir. 2000) 

(quoting Connick v. Meyers, 461 U.S. 138, 146 (1983)). To determine whether that 

speech is about a matter of public concern, the “main thrust” of the speech must be 

examined, including “the content, form, and context of a given statement, as revealed 

by the whole record.” Id. at 1288 (quoting Morgan v. Ford, 6 F.3d 750, 755 (11th 

Cir. 1993) and quoting Connick, 461 U.S. at 147-148).

“When there is a personal element to the speech, complaints of wrongdoing 

within a public agency may not constitute speech on a matter of public concern.” Id.; 

see also Maggio v. Sipple, 211 F.3d 1346, 1352 (11th Cir. 2000) (holding that a 

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public employee’s speech did not rise to the level of public concern because the 

speech was not directed toward the public and the speech was comprised of the 

employee’s complaints against her supervisor). Moreover, “if the speech at issue is 

personal in nature, and ‘cannot be fairly considered as relating to any matter of 

political, social, or other concern to the community, government officials should 

enjoy wide latitude in managing their offices, without intrusive oversight by the 

judiciary in the name of the First Amendment.’” Akins v. Fulton County, Ga., 420 

F.3d 1293, 1303 (11th Cir. 2005) (quoting Connick v. Myers, 461 U.S. 138, 146 

(1983)).

Even if a public employee’s speech is about matters that the public might be 

interested in, for that speech to rise to the level of public concern, it must be directed 

specifically to the public such that it raises issues of concern amongst the public. See 

Maggio, 211 F.3d at 755 (holding that the main thrust of the government employee’s 

speech on agency’s internal policies and procedures was to promote a private interest 

and not raise issues of public concern); see also Morgan v. Ford, 6 F.3d 750, 754 

(11th Cir. 1993) (finding that the plaintiff’s speech about sexual harassment 

complaints regarding her supervisor was not speech on a matter of public concern 

because her speech was not intended to raise issues of public concern, instead, the 

speech served to further her own private interests).

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Here, as an initial matter, Plaintiff failed to attach the May 1, 2019, human 

resources complaint against the County and Dr. Edler to his Complaint. By 

extension, the Complaint fails to quote, identify, reference, or otherwise incorporate 

the alleged speech within the human resources complaint that Plaintiff seeks 

protection for under the First Amendment. Consequently, Count III of Plaintiff’s 

Complaint should be dismissed on this matter alone.

However, even if Plaintiff had attached his human resources complaint, or had 

quoted therefrom without attaching same, the speech does not relate to social, 

political, or other matters of public concern. Indeed, Plaintiff’s only conclusory 

allegation that the speech should be afforded First Amendment protection is that the 

speech allegedly concerns the policies, practices, and procedures implemented by 

the County and Dr. Edler. See Pl. Compl. ¶ 100. In addition, Plaintiff alleged that 

the human resources complaint “was intended to seek redress for the procedural due 

process violations apparent in the circumstances surrounding the QA [April 23, 

2019,] meeting.” See id. ¶ 101. The Complaint is otherwise devoid of any allegations 

indicating that Plaintiff’s speech rose to the level of public concern. See generally 

id.

As the Court held in Maggio, even if the content of the speech might rise to 

the level of public concern, that speech must be directed toward the public. See 

Maggio, 211 F.3d at 755. By extension, as the Court held in Morgan, speech that 

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serves to promote private, personal interests fails to rise to the level of public 

concern. Morgan v. Ford, 6 F.3d 750, 754 (11th Cir. 1993).

The Eleventh Circuit has found government-employee speech to rise to the 

level of public concern when the speech was directed to the public and it revolved 

around matters of public concern. See Cooper v. Smith, 89 F.3d 761, 765 (11th Cir. 

1996) (finding that government employee’s speech on a public investigation into 

police corruption was speech on a matter of public concern); see also McCullars v. 

Maloy, 617CV1587ORL40GJK, 2018 WL 6618536, at *5 (M.D. Fla. Dec. 18, 

2018), clarified on denial of reconsideration, 617CV1587ORL40GJK, 2019 WL 

130363 (M.D. Fla. Jan. 8, 2019) (finding that plaintiff’s social media posts providing 

her opinion on a prosecutor’s public statement was speech on a matter of public 

concern because it was directed toward the public to bring awareness to matters of 

public concern). Here, there are no allegations that the speech was directed to the 

public or that the speech was for any other purpose than Plaintiff’s own self-interest. 

See generally Compl.

Furthermore, courts in this Circuit have held that government-employee 

speech does not rise to the level of public concern when it centers on promoting 

personal matters and internal issues. See Battle v. Board of Regents for Georgia, 468 

F.3d 755, 761-762 (11th Cir. 2006) (finding that plaintiff, a government employee, 

was speaking as an employee and that her speech was not a matter of public concern 

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because it centered on her job duties checking for fraud); see also Vila v. Padron, 

484 F.3d 1334, 1339-1340 (11th Cir. 2007) (holding that government employee 

plaintiff’s speech about potential illegal or unethical behavior of other government 

employees was not made as a citizen on a matter of public concern). Accordingly, 

Plaintiff cannot establish that he directed his speech towards the public or that the 

purpose of his speech was to raise issues of public concern.

Here, Plaintiff failed to incorporate the alleged speech he claims is protected 

by the First Amendment. However, even if Plaintiff had attached or incorporated the 

specific speech, his retaliation claim still fails since the allegations in the Complaint 

establish that the subject speech revolves around Plaintiff’s personal interests in 

seeking personal redress for claims against him alone. For both reasons, 

independently or conjunctively, Count III of Plaintiff’s Complaint must be 

dismissed.

F. Count V should be Dismissed with Prejudice as the County is not Subject to 

the Provisions of Florida Statute § 448.102

Plaintiff’s Count V against the County must be dismissed as the provisions of 

§ 448.102(1), Fla. Stat., do not apply to governmental entities and, as such, do not 

apply to the County. Specifically, the private sector Whistle-Blower’s Act 

“prohibits private sector employers from taking retaliatory personnel 

action against employees who “blow the whistle” on employers who violate the law 

or against employees who refuse to participate in violations of the law.” Arrow Air, 

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Inc. v. Walsh, 645 So. 2d 422, 423 (Fla. 1994). (emphasis added). § 448.102, Fla. 

Stat., states in relevant part: 

An employer may not take any retaliatory personnel action against an 

employee because the employee has:

(1) Disclosed, or threatened to disclose, to any appropriate 

governmental agency, under oath, in writing, an activity, policy, or 

practice of the employer that is in violation of a law, rule, or regulation.

However, this subsection does not apply unless the employee has, in 

writing, brought the activity, policy, or practice to the attention of a 

supervisor or the employer and has afforded the employer a reasonable 

opportunity to correct the activity, policy, or practice.

(2) Provided information to, or testified before, any appropriate 

governmental agency, person, or entity conducting an investigation, 

hearing, or inquiry into an alleged violation of a law, rule, or regulation 

by the employer.

(3) Objected to, or refused to participate in, any activity, policy, or 

practice of the employer which is in violation of a law, rule, or 

regulation.

However, pursuant to § 448.101, Fla. Stat., the term “employer” as used in 

§§448.101-448.105, Fla. Stat., means “any private individual, firm, partnership, 

institution, corporation, or association that employs ten or more persons.” (emphasis 

added). In Wallace v. School Bd. of Orange County, Fla., M.D.Fla.1998, 41 

F.Supp.2d 1321, a former school bus driver was terminated and brought suit against 

the school board alleging that he was terminated in violation of the Private sector 

Whistleblower’s Act. The Court in Wallace found that the private Whistleblower’s 

Act, § 448.102, Fla. Stat., did not apply because the school board was a

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governmental entity. Id. Similarly, Selover, an Escambia County employee, seeks 

to bring a private whistleblower action against Escambia County, a governmental 

entity. See generally Compl. However, the Private Whistleblower’s Act does not 

apply to governmental entities. Accordingly, Plaintiff’s claim should be dismissed

with prejudice. 

Moreover, even if Plaintiff were to attempt to bring this cause of action under 

Florida’s Public Whistleblower Act, Plaintiff’s claim would still fail. Florida’s 

Public Whistleblower Act makes clear that the information disclosed by an 

employee must include “[a]ny violation or suspected violation of any federal state, 

or local law, rule, or regulation committed by an employee or agent of agency ... 

which creates and presents a substantial and specific danger to the public's health, 

safety, or welfare.” Fla. Stat. § 112.3187(5)(a).

In addition, the information must be disclosed “in a written and signed 

complaint” to the “chief executive officer” of the agency, or “other appropriate local 

official.” Fla. Stat. § 112.3187(6); See also Crouch v. Pub. Serv. Com'n, 913 So. 2d 

111, 111 (Fla. 1st DCA 2005) (complaints to supervisors were required to be in 

writing, employee did not ask supervisors to submit his complaints to inspector 

general, and supervisors did not promise to do so, but rather chose to do so on their 

own initiative and therefore employee not protected by whistleblower act).

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Here, the complaint made by Selover does not create and present a substantial 

and specific danger to the public’s health, safety, or welfare. Compl. at ¶ 28. In 

addition, Plaintiff’s complaint regarding Edler does not meet the notice requirements 

of Florida Statute Section 112.3187(6) because it was addressed to Human 

Resources and not a local official. Compl. at ¶ 28; Castro v. Sch. Bd. of Manatee 

County, Fla., 903 F. Supp. 2d 1290, 1303 (M.D. Fla. 2012) (email did not meet the 

notice requirements of Florida Statute § 112.3187(6) because it was addressed to an 

official with the U.S. Department of Education, and not a local School Board 

official). Accordingly, even if Plaintiff had brought Count V pursuant to the Public 

Whistleblower Act his claim would still fail as he cannot establish he engaged in a 

statutorily protected activity and provided proper notice pursuant to Florida Statute 

§112.3187(6).

CONCLUSION

Plaintiff’s Complaint fails to state a claim for Counts I, III, and V. Plaintiff’s 

Count I and III fails to state a cause of action because Plaintiff has failed to establish 

municipal liability and as such Plaintiff’s claim should be dismissed. In addition, as 

to Count I, Plaintiff fails to state a claim for a procedural due process violation 

because none has occurred: Plaintiff had sufficient notice, an opportunity to respond, 

and voluntarily chose not to avail himself to the appellate rights available to him 

under the County’s policies and procedures and the CBA. As to Count III, Plaintiff 

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fails to state a claim for First Amendment retaliation because Plaintiff’s speech is 

not attached to the Complaint and even if it was, such speech would not rise to the 

level of public concern because it was not directed to the public and revolves around 

personal matters. As to Count V, Plaintiff fails to state a claim for public 

whistleblower retaliation because Plaintiff cannot assert a Private Whistleblower 

action against a governmental entity. Therefore, Counts I, III, and V of Plaintiff’s 

Complaint should be dismissed. 

WHEREFORE, Defendant, Escambia County Board of County 

Commissioners, respectfully requests this Court to enter an Order dismissing Count 

I, III, and V of Plaintiff’s Complaint, and awarding any and all further relief that this 

Court deems just and proper. 

CERTIFICATION UNDER L.R. 7.1 (F)

Pursuant to Local Rule 7.1 (F), I hereby certify that the number of words in 

the Motion and Memorandum do not exceed 8,000 words. The total number of 

words is 7,305. 

Dated: March 30, 2020

Respectively Submitted,

LYDECKER | DIAZ

Counsel for Escambia County

495 Grand Blvd.

Suite 206

Miramar Beach, FL

Telephone: (305) 416-3180

By: /s/ Katie Gudaitis

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KATIE GUDAITIS, ESQ.

Florida Bar No: 106954

kg@lydeckerdiaz.com

STEPHANIE PIDERMANN, ESQ.

FBN: 60414

sp@lydeckerdiaz.com

CERTIFICATE OF SERVICE

I hereby certify that I electronically filed the foregoing document with the 

Clerk of Court using CM/ECF on March 30, 2020. I also certify that a true and 

correct copy of the foregoing was served this day via transmission of Notices of 

Electronic Filing generated by CM/ECF on all counsel or parties of record on the 

Service List below.

/s/ Katie Gudaitis

Katie Gudaitis, Esq. 

SERVICE LIST

J.J. TALBOTT, ESQ.

Law Office of Jerimiah J. Talbott, P.A.

900 East Moreno Street

Pensacola, Florida 32503

jjtalbott@talbottlawfirm.com

Phone: (850) 437-9600

Attorney for Plaintiff

GEORGE F. INDEST, III, ESQ.

THE HEALTH LAW FIRM

1101 Douglas Avenue, Suite 1000

Altamonte, Florida 32714

gindest@thehealthlawfirm.com

Phone: (407) 331-6620

Attorneys for Rayme Edler

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