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UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

MATHEW SELOVER

Plaintiff, 

vs. CASE NUMBER: 3:20-CV-4698-

TKW-HTC

 

ESCAMBIA COUNTY BOARD

OF COUNTY COMMISSIONERS and

RAYME EDLER, 

Defendants.

 /

PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANT RAYME

EDLER’S (INDIVIDUAL CAPACITY) MOTION TO DISMISS

I. INTRODUCTION

This case concerns Defendant Rayme Edler (Edler), abusing her authority as 

the Escambia County Medical Director to discipline and retaliate against an 

Escambia County employee, i.e., Plaintiff Mathew Selover, in retaliation for 

complaints of inappropriate work conduct that Plaintiff filed against Defendant 

Edler. This case also concerns the Escambia County Board of County 

Commissioners’ (the Board) policy, practice, or custom of ignoring previous 

complaints against Defendant Edler and allowing Defendant Edler carte blanche 

authority to discipline Plaintiff without adhering to the Board’s written policies, 

essentially ratifying Defendant Edler’s conduct. 

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Defendants’1 conduct caused the deprivation of Plaintiff’s due process rights 

in that Plaintiff had a clearly established right to notice, service, escalating 

disciplinary measures, and appeal rights prior to suffering any disciplinary measures, 

including discharge, but Defendants did not provide Plaintiff with same, and they 

failed or refused to provide a pre or post deprivation hearing, preventing Plaintiff 

from seeking redress for the deprivation of his rights within a meaningful time. Thus, 

in an effort to vindicate his rights, Plaintiff filed this lawsuit pursuant to 42 U.S.C. 

§ 1983, and the Florida Whistle-blower’s Act, Fla. Stat. § 112.3187 (FWA). 

Defendant Edler has moved to dismiss the FAC, arguing that the FAC fails to 

state a claim upon which relief may be granted because, according to Defendant 

Edler, she is entitled to qualified immunity. For the reasons stated below, Defendant 

Edler’s arguments are without merit, thus Plaintiff respectfully requests that this 

Court DENY Defendant Edler’s motion to dismiss.

II. FACTUAL AND PROCEDURAL BACKGROUND

For a recitation of the factual allegations which are relevant for purposes of 

Plaintiff’s response to Defendant Edler’s Motion to Dismiss, please refer to Section 

II of Plaintiff’s response to the Board’s Motion to Dismiss [ECF No. 36] which is 

incorporated herein by reference.

1 Hereinafter, Defendant Edler and the Board are collectively referred to as 

“Defendants.”

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III. MEMORANDUM OF LAW

a. MOTION TO DISMISS LEGAL STANDARD

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 pleading standard does not require “detailed factual allegations.” Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,

555 (2007)). At the motion to dismiss stage, "all-well pleaded facts are accepted as

true, and the reasonable inferences therefrom are construed in the light most

favorable to the plaintiff." Bryant v. Avado Brands, Inc., 187 F.3d 1271, 1273 n.1

(11th Cir. 1999). The Eleventh Circuit has stated that “a complaint should not be 

dismissed under Fed. R. Civ. P. 12(b)(6) ‘unless it appears beyond doubt that the 

plaintiff can prove no set of facts in support of his claim which would entitle him to 

relief.”’ Thomas v. Town of Davie, 847 F.2d 771,773 (11th Cir. 1988) (citing Conley 

v. Gibson, 355 U.S. 41, 47 (1957). The issue to be decided in considering a motion 

to dismiss is “not whether a plaintiff will ultimately prevail but whether the claimant 

is entitled to offer evidence to support the claims.” Scheuer v. Rhodes, 416 U.S. 232, 

236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974).

Thus, a Plaintiff must allege enough facts to state a claim of relief that is

merely plausible on its face. Twombly, 550 U.S. at 570 (2007). A complaint is

plausible on its face when the plaintiff pleads factual content necessary for the court

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to draw the reasonable inference that the defendant is liable for the conduct alleged.

Id. Also, the discretion to dismiss a complaint without leave to amend is “severely 

restrict[ed] by Fed. R. Civ. P. 15(a) which directs that leave to amend “shall be freely 

given when justice so requires.” Thomas supra at 773 (citing Dussouy v. Gulf Coast 

Investment Corp., 660 F.2d 594, 597 (5th Cir. 1981)). “Rule 12(b)(6) dismissals are 

especially disfavored in cases where the complaint sets forth a novel legal theory 

that can best be assessed after factual development.” Wright v. North Carolina, 787 

F.3d 256, 263 (4th Cir. 2015) (citing McGary v. City of Portland, 386 F.3d 1259, 

1270 (9th Cir. 2004) (quoting Baker v. Cuomo, 58 F.3d 814, 818-19 (2d Cir. 1995))). 

b. CAUSE OF ACTION UNDER 42 U.S.C. § 1983

Pursuant to 42 U.S.C. § 1983: 

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. “Through § 1983, Congress sought to give a remedy to parties 

deprived of constitutional rights, privileges and immunities by an official’s abuse of 

his position.” Hafer v. Melo, 502 U.S. 21, 27 (1991). “To state a claim under § 1983, 

a plaintiff must allege the violation of a right secured by the Constitution and laws 

of the United States, and must show that the alleged deprivation was committed by 

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a person acting under the color of state law.” West v. Atkins, 487 U.S. 42, 49 (1988). 

Under § 1983, “[p]ersonal capacity suits . . . seek to impose individual liability upon 

a government officer for actions taken under the color of state law.” Hafer v. Melo, 

502 U.S. 21, 25 (1991). Whether a municipality is liable under § 1983 is a separate, 

and distinct analysis compared to whether an individual is liable under § 1983. See

Church v. City of Huntsville, 30 F.3d 1332, 1343 (11th Cir. 1994) (analyzing 

municipal liability under § 1983); cf. Davison v. Randall, 912 F.3d 666 (4th Cir. 

2019) (analyzing individual liability under § 1983).

The plaintiff in a personal capacity suit need not establish a connection to a 

governmental policy or custom. Hafer, 502 U.S. at 25. “On the merits, to establish 

personal liability in a § 1983 action, it is enough to show that the official, acting 

under color of state law, caused the deprivation of a federal right.” Ky. v. Graham, 

473 U.S. 159, 166 (1985). “A person acts under the color of state law when he acts 

with authority possessed by virtue of his employment with the state, or when the 

manner of his conduct . . . makes clear that he was asserting the authority granted 

him and not acting in the role of a private person.” Myers v. Bowman, 713 F.3d 1319, 

1329-30 (11th Cir. 2013) (quoting Griffin v. City of Opa-Locka, 261 F.3d 1295, 1303 

(11th Cir. 2001); and Williams v. United States, 341 U.S. 97, 100 (1951) (internal 

quotations omitted)). Claims brought pursuant to the First or Fourteenth Amendment 

require a showing of “state action.” See Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 

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40, 49-50 (1999); Manhattan Cmty. Access Corp v. Halleck, 139 S. Ct. 1921, 1928 

(2019). 

However, “it is clear that in a §1983 action brought against a state official, the 

statutory requirement of action ‘under color of state law’ and the ‘state action’ 

requirement of the Fourteenth Amendment are identical.” Lugar v. Edmonson Oil 

Co., 457 U.S. 922, 929 (1982). “[S]tate action may be found if . . . there is such a 

close nexus between the State and the challenged action that seemingly private 

behavior may be fairly treated as that of the State itself.” Brentwood Acad. v. Tenn. 

Secondary Sch. Ath. Ass’n, 531 U.S. 288, 295 (2001). “What is fairly attributable is 

a matter of normative judgment, and the criteria lack rigid simplicity.” Id. “The 

dispositive issue is whether the official was acting pursuant to the power he/she 

possessed by state authority or acting only as a private individual.” Griffin, 261 F.3d 

at 1303 (quoting Edwards v. Wallace Community College, 49 F.3d 1517, 11523 

(11th Cir. 1995)). “It is firmly established that a defendant in a § 1983 suit acts under 

color of law when he abuses the position given to him by the State.” Id. (citing 

United States v. Classic, 313 U.S. 299, 326 (1941).

Considering the above framework, to state a claim for procedural due process, 

a plaintiff must show “(1) a deprivation of a constitutionally-protected liberty or 

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

Catron v. City of St. Petersburg, 658 F.3d 1260, 1266 (11th Cir. 2011) (internal 

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quotations omitted). A claim of entitlement to a property interest must be decided 

by reference to state law. Bishop v. Wood, 426 U.S. 341, 345 (1976). “A property 

interest can . . . be created by ordinance, or by an implied contract.” Id. “The essential 

requirements of due process . . . are notice and opportunity to respond.” Cleveland 

Bd. of Educ. v. Loudermill, 470 U.S. 532, 546 (1985). 

c. QUALIFIED IMMUNITY

“Under the qualified immunity doctrine, government officials performing 

discretionary functions are immune not just from liability, but from suit, unless the 

conduct which is the basis for the suit violates clearly established federal statutory 

or constitutional rights which a reasonable person would have known.” Gaines v. 

Wardynski, 871 F.3d 1203, 1206 (11th Cir. 2017). Qualified immunity “does not 

extend to one who knows or reasonably should have known that his or her actions 

would violate the plaintiff’s federal rights.” Id. at 1207 (citing Jones v. Fransen, 857 

F.3d 843, 851 (11th Cir. 2017). In the Eleventh Circuit, courts look to whether the 

defendant had fair warning that the conduct at issue violated a constitutional right. 

Id. 1208. 

There are three methods to show fair warning:

First, the plaintiffs may show that a materially similar case has already 

been decided. Second, the plaintiffs can point to a broader, clearly 

established principle that should control the novel facts of the 

situation. Finally, the conduct involved in the case may so obviously 

violate the constitution that prior case law is unnecessary. 

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Id. (quoting Terrell v. Smith, 668 F.3d 1244, 1255-56 (11th Cir. 2012)). “[A]n 

exact factual analogue does not have to exist for a defendant to be on notice . 

. .” that their conduct is violating a clearly established right. Allred v. City of 

Carbon Hill, Ala., 2014 U.S. Dist. LEXIS 151443, *24 (M.D. Ala. Oct. 24, 

2014) (citing Thomas v. McKee, 205 F.Supp. 2d 1275, 1288 n.13 (M.D. Ala. 

2002). Additionally, courts should define the clearly established right at issue 

on the basis of the specific context of the case. See Tolan v. Cotton, 572 U.S. 

650, 657 (2014). 

In determining whether a defendant’s acts are discretionary, the Court 

conducts a two-fold inquiry asking “whether the government employee was (1) 

performing a legitimate job-related function, (2) through means that were within his 

power to utilize . . . .” O’Rourke v. Hayes, 378 F.3d 1201, 1205 (11th Cir. 2004). 

The party seeking qualified immunity has the burden of showing that they were 

acting within the scope of their discretionary authority. Vinyard v. Wilson, 311 F.3d 

1340, 1346 (11th Cir. 2002). 

d. ARGUMENT

Defendant Edler has moved to dismiss Counts II, IV, and VI2 of the FAC, 

arguing that dismissal is appropriate because, according to Defendant Edler, she is 

2 Plaintiff does not dispute dismissal of Counts IV, and VI. 

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entitled to qualified immunity.3 As explained below, Defendant Edler’s arguments 

regarding dismissal of Count II are without merit because Defendant Edler is not 

entitled to qualified immunity. Thus, this Court should deny Defendant Edler’s

Motion to Dismiss.

d.1 The First Amended Complaint has pleaded enough facts to establish that 

Defendant Edler was not acting within her discretionary authority.

To obtain the benefit of qualified immunity, Defendant Edler has the burden 

of showing that she was acting within the scope of her discretionary authority. 

Vinyard, 311 F.3d at 1346. However, Defendant Edler is unable to establish that her 

conduct giving rise to Plaintiff’s § 1983 claims was within her discretionary 

authority, and the FAC alleges sufficient facts to establish that the conduct 

complained of was not within Defendant Edler’s discretionary authority. Thus, 

Defendant’s argument that dismissal is appropriate because she is entitled to

qualified immunity is without merit. 

Here, Defendant Edler relies on the wording of Section 401.265(1), Florida 

Statutes, specifically the language “The medical director must supervise and assume 

direct responsibility for the medical performance of the emergency medical 

technicians and paramedics . . .” to support her argument that she was performing a 

3 To the extent Defendant Edler relies on the arguments raised by the Board in its 

motion to dismiss, Plaintiff refers the Court to Plaintiff’s response to the Board’s 

Motion to Dismiss. [ECF No. 36].

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discretionary function which entitles her to qualified immunity. However, Defendant 

Edler’s reliance thereon is misplaced because this same Florida Statute, Section 

401.265(1), specifically excludes administrative and managerial functions from 

Defendant Edler’s authority, which includes the authority to discipline employees, 

including Plaintiff.

4 See Fla. Stat. § 401.265(a); [ECF No. 20, ¶ 42, Ex. A- Peppler 

Memo]. As ECBCC attorney Charlie Peppler noted in his memo relating to this 

matter, Defendant Edler did not have the authority to discipline Plaintiff because 

such actions are part of the managerial function which is specifically excluded from 

the duties of a medical director. Id. Additionally, Peppler’s conclusions on 

Defendant Edler’s authority are supported by Assistant County Attorney Kia M. 

Johnson, who found that, under Florida law, disciplinary functions are excluded 

from a medical director’s authority, and is instead, the responsibility of the direct 

supervisor. See Email from Kia M. Johnson, attached hereto as Exhibit A. 

Moreover, Defendant Edler should be estopped from asserting that she had 

discretionary authority to discipline or reprimand EMS employees as she took a 

contrary position in a separate lawsuit, to wit: Rayme Edler v. Melissa Pino, Case 

No. 2019-CA-001206 (Escambia County Circuit Court). Specifically, during a 

4 Section 401.265 makes clear that the medical director serves primarily as an 

expert in life support with job responsibilities limited to advising, consulting, 

training, counseling and overseeing of services, but not administrative and 

managerial functions. Fla. Stat. § 401.265

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temporary injunction hearing on November 13, 2019, Defendant Edler testified, 

under oath, that she did not have broad discretion to exercise her powers and 

authority as medical director. Additionally, Defendant Edler testified that she did not 

have administrative or managerial authority, including that she did not have the 

authority to hire, fire, or reprimand anyone in her department. See Edler Deposition 

Transcript, attached hereto as Exhibit B. Thus, after considering Section 401.265, 

Florida Statutes, which specifically excludes administrative and managerial 

functions from Defendant Edler’s duties, that the County’s own attorney believes 

that Defendant Edler does not have the discretionary authority to discipline Plaintiff 

as she has done here, and that even Defendant Edler believed disciplining employees 

is not within her discretionary authority per her own sworn testimony, it is clear that 

Defendant Edler is unable to show that she (1) was performing a legitimate jobrelated function, (2) through means that were within her power to utilize. See 

O’Rourke, 378 F.3d at 1205. As such, the Court should find that Defendant Edler is 

not entitled to qualified immunity.

d.2 The First Amended Complaint has pleaded enough facts to establish 

that Defendant Edler violated clearly established law.

Even if the Court were to find that Defendant Edler was acting within her 

discretionary authority, the Court should find that Defendant Edler is not entitled to 

qualified immunity because her actions complained of in the FAC violated clearly 

established law. See Gaines, 871 F.3d at 1206. From the outset, State law will 

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determine the scope of Plaintiff’s property interest in his employment and provide 

guidance on whether or not his property interest was clearly established. See Bishop 

426 U.S. at 344-45. Florida law authorizes county governments to adopt their own 

rules and procedures, and to employ personnel to carry out their enumerated powers. 

Fla. Stat. § 125.01(1)(a), (3). The governing body of Escambia County, the ECBCC, 

has adopted rules and procedures which govern employee discipline. See [ECF No. 

20, Ex. D- Escambia County Human Resources Policies and Procedures]. 

Additionally, ECBCC is subject to a collective bargaining agreement which 

identifies Plaintiff as an employee who is subject to termination or discipline only 

for cause. See [ECF No. 20, Ex. E- Collective Bargaining Agreement].

According to ECBCC’s policies, Plaintiff was entitled to (1) written notice of 

the disciplinary action taken against him stating the nature of the action taken, the 

effective date, and the duration; (2) delivery of the notice by legal service of process; 

and (3) an opportunity to appeal. Escambia County Human Resources Policies and 

Procedures, 71-72. Additionally, ECBCC polices implement an escalating scale of 

discipline wherein termination is the final step. Id.; Peppler Memo. Accordingly, 

Plaintiff has a clearly defined property interest in his employment with ECBCC. See

Bishop v. Wood, 426 U.S. 341, 345 (1976) (a claim of entitlement to a property 

interest must be decided by reference to state law, and “[a] property interest can . . . 

be created by ordinance, or by an implied contract.”).

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Having established that Plaintiff has a clearly established property interest 

in his employment with ECBCC and was entitled to the procedures above, there is 

no doubt that Defendant Edler was given fair warning that her conduct violated 

clearly established law when she disciplined Plaintiff without providing Plaintiff 

with a notice and opportunity to be heard, and when she created circumstances 

leading to Plaintiff’s constructive discharge without notice and opportunity to be 

heard. See Bryant v. Jones, 575 F.3d 1281, 198 (11th Cir. 2009) (“Constructive 

discharge occurs when an employer deliberately makes an employee’s working 

conditions intolerable and thereby forces him to quit his job.”). 

Here, stated succinctly, the constitutional violation in this case was in failing 

to provide Plaintiff with a meaningful opportunity to be heard, either through a pre 

or post deprivation hearing, regarding Defendants’ decisions to (1) permit Edler to 

fail or refuse to follow ECBCC’s written policies; (2) demote Plaintiff and require 

him to comply with the PIP; (3) constructively discharge Plaintiff.5 [ECF No. 20, ¶¶ 

16, 19, 26, 31, 36, 82]. 

5 Given that the Plaintiff was told by Defendants that the QA meeting was nondisciplinary, Plaintiff believes that he has a constitutional right to be heard when 

Defendant Edler tried to punish/reprimand the Plaintiff, which was 23 days after 

the QA meeting. However, to the extent that the Defendants believe that the QA 

meeting would satisfy his constitutional rights, then Plaintiff contends that the QA 

meeting was insufficient as (1) he had a lack of notice of the meeting itself; (2) he 

was not provided any notice of the subject of the meeting, (3) he was told that the 

meeting was non-disciplinary, (4) the meeting did not follow the Boards policies 

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Further supporting Plaintiff’s argument that Defendant Edler violated clearly 

established law is that while these circumstances played out, ECBCC’s own 

representatives, including its legal counsel, clearly understood, and warned Edler 

that her conduct violated Plaintiff’s due process rights. For example, in his memo

dated May 31, 2019, Peppler noted his view that Edler’s actions taken against 

Plaintiff amounted to employee discipline, that Edler was without authority to 

impose such discipline, and that Plaintiff had due process rights under the County’s 

disciplinary policy, including appeal rights. [ECF No. 20, Ex A.- Peppler Memo].

Further, Spainhower’s report, dated June 2019, concluded that “Mr. Selover was not 

afforded the type of due process required by [ECBCC] policy and union collective 

bargaining agreement . . . .” [ECF No. 20, Ex. B- Spainhower Report]. On July 12, 

2019, Interim Public Safety Director Dosh emailed Edler directly and noted that 

Edler’s continued intent to demote Plaintiff raised due process concerns because 

Edler’s conduct failed to follow the County’s progressive disciplinary policies. [ECF 

No. 20, Ex. C- Dosh Email to Edler]. Thus, you have three County officials, i.e., 

Peppler- County Attorney, Dosh- Interim Public Safety Director, and SpainhowerCounty HR Associate, all specifically admonishing Edler regarding due process 

and procedures, and (5) the make-up of the QA board was improper.

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concerns, and all specifically stating the words “due process” when expressing their 

concerns. 

Nevertheless, Defendant Edler continued her efforts to impose discipline after 

being repeatedly admonished by her superiors regarding the clear due process 

violations. In fact, continuing her efforts to discipline Plaintiff, Edler refused to draft 

the PIP Dosh instructed her to draft, and she refused to allow Plaintiff to return to 

work even after Plaintiff completed the PIP. [ECF No. 20, ¶¶ 41, 58-59]. Thus, 

Defendant Edler’s mere assertion that she did not violate clearly established law is 

without merit. Indeed, what could be more clear than multiple officials within the 

County, including the County’s own legal counsel, stating in no uncertain terms that 

Edler did not have the authority to discipline Plaintiff, and that her continued 

insistence in demoting Plaintiff was a due process concern? Accordingly, Defendant 

Edler had fair, and repeated warning that her conduct violated Plaintiff’s 

constitutional rights, nevertheless, she persisted in her course of action with the 

intent of disciplining, and ultimately discharging Plaintiff. 

In support of her argument that she did not violate clearly established law, 

Defendant Edler attached a Declaratory Statement from the Florida Department of 

Health (DOH Declaratory Statement) offering a contrary interpretation of Fla. Stat. 

§401.265(1) than those offered by Peppler and Johnson. However, the Court should 

find that the DOH Declaratory Statement offered by Defendant Edler is not binding 

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here because, to the extent Defendant Edler asserts that the DOH Declaratory 

Statement authorizes her to discipline Plaintiff, such an interpretation would 

“enlarge, modify, or contravene” Section 401.265, Florida Statutes. See McKenzie 

Check Advance of Fla., L.L.C. v. Betts, 928 So.2d 1204, 1216 (Fla. 2006) (“We do 

not defer to an agency’s interpretation that attempts to enlarge, modify, or 

contravene a statute.”) (internal quotations omitted). The plain language of Section 

401.265 clearly excludes administrative and managerial functions from a medical 

director’s duties. Moreover, ECBCC’s own legal counsel, Charlie Peppler and Kia 

Johnson specifically found that employee discipline is managerial in nature, and that 

Defendant Edler is not authorized to discipline Plaintiff. See [ECF No. 20, ¶ 42]; 

Exhibit B. Finally, the Section 401.265 makes clear that the medical directors’ role 

is one of an expert, not management, with responsibilities limited to “advising, 

consulting, training, counseling, and overseeing of services . . .but not including 

administrative and managerial functions.” Fla. Stat. § 401.265. Thus, the DOH 

Declaratory Statement is due no deference. 

Additionally, Defendant Edler’s reliance on Section 401.425(3)(a), Florida 

Statutes for support is misplaced. Section 401.425(3)(a) states: “There shall be no 

monetary liability on the part of, and no cause of action shall arise against any 

person, including any person acting as a witness, incident reporter to, or investigator 

for, an emergency medical review committee for any act or proceeding undertaken 

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or performed within the scope of the functions of any emergency medical review 

committee if such action is taken without intentional fraud or malice.” Fla. Stat. § 

401.425(3)(a). As noted by Defendant Edler, Florida Statues do not define the scope 

of qualified immunity, thus Section 401.425(3)(a) is of no relevance here, and 

merely confuses the issue. Nevertheless, to the extent the Court finds the statute 

instructive to the qualified immunity analysis in this case, the Court should find that 

Section 401.425(3)(a) would provide no immunity to Defendant Edler here.

Florida statutes would not provide Defendant Edler with immunity because 

(1) the discipline Defendant Edler imposed upon Plaintiff is not within the scope of 

the function of the emergency medical review committee. See [ECF No. 20, Ex. APeppler Memo]; Exhibit B. As noted in the Peppler Memo, and in Assistant County 

Attorney Johnson’s email, disciplinary actions against an employee are managerial 

functions reserved for the County Administrator and Public Safety Director pursuant 

to Section 401.265(1), Florida Statues. And (2) Defendant Edler’s actions were taken 

with malice. The Bouvier Law Dictionary defines Malice as “a state of mind in 

which a person acts in a manner intended to cause harm to someone or something or 

acts in a manner as a person would who intends harm but does so with no regard for 

the risk of harm being created, and has no valid justification or excuse for doing so.” 

This entire complaint began when Defendant Edler sought to impose 

discipline on Plaintiff not immediately after the QA meeting, but immediately after 

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Defendant Edler learned that Plaintiff lodged a complaint against her regarding the 

QA meeting- approximately 23 days after the meeting. The clear timeline of events 

laid out in the FAC demonstrates that Defendant Edler sought to impose discipline 

on Plaintiff in retaliation for him lodging a complaint against her, and then 

repeatedly failed to follow the due process warnings of County Officials Pepper, 

Spainhower, and Dosh. For example, at the conclusion of the QA meeting, the QA 

board did not recommend remediation, re-training, or performance improvement, 

but suddenly, after Edler learned of Plaintiff’s complaint against her, she decided 

discipline was warranted. [ECF No. 20, ¶¶ 27, 31]. Thus, Defendant Edler’s 

malicious intent to cause harm to Plaintiff without justification for doing so is clear.

Accordingly, the Court should find that Defendant Edler is not entitled to qualified 

immunity. 

d.3 The FAC pleaded sufficient facts to plausibly infer that Defendant Edler 

violated Plaintiff’s due process rights.

To adequately state a claim under 42 U.S.C. § 1983 under Rule 8, the FAC 

need merely plead enough facts which plausibly show that Defendant Edler violated 

Plaintiff’s constitutional rights, and that Defendant Edler’s conduct was under the 

color of state law. See West, 487 U.S. at 49. Here, Defendant Edler largely relies on 

the Board’s arguments regarding failure to state a claim, thus, Plaintiff will more 

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fully address the arguments in his response to the Board’s motion to dismiss. 

Nevertheless, Defendant Edler has raised a point which merits discussion here.6

In her Motion, Defendant Edler asserts that Plaintiff has failed to state a claim 

regarding his due process allegations because Defendant Edler was not individually 

responsible for providing due process to Plaintiff. See Defendant Edler’s 

Memorandum in Support of Motion to Dismiss [ECF No. 32, p. 18]. In doing so 

Defendant Edler relies on an unpublished Eleventh Circuit case. See Watkins v. Cent. 

Broward Reg’l Park, 799 Fed. Appx. 659, 667 (11th Cir. 2020). However, Watkins 

rationale does not apply here because there, the Eleventh Circuit specifically found 

that the defendant was not empowered to promulgate additional procedures or to 

alter rules, thus the defendant could not be responsible for failing to provide due 

process. Id.

Here, contrary to Watkins, the Board clearly authorized Defendant Edler to 

alter procedures as she flat out failed to comply with ECBCC’s written policies and 

procedures, instead marching to the tune of her own drum, and she suffered no 

6 Moreover, Defendant Edler’s reliance on the arguments raised by the Board in its 

Motion to Dismiss are misplaced to the extent Defendant Edler asserts that the 

FAC fails to state a cause of action because it fails to plausibly plead municipal 

liability. Municipal liability and individual liability under § 1983 are separate and 

distinct causes of actions with separate and distinct elements. See Church v. City 

of Huntsville, 30 F.3d 1332, 1343 (11th Cir. 1994) (analyzing municipal liability 

under § 1983); cf. Davison v. Randall, 912 F.3d 666 (4th Cir. 2019) (analyzing 

individual liability under § 1983).

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Plaintiff’s Response in Opposition to Defendants Rayme Edler’s Motion to Dismiss

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consequences from such conduct, i.e., ECBCC failed to take any disciplinary action 

to admonish and prevent Edler for her failure to comply with written policies and 

procedures, thereby ratifying her conduct, including the procedures, or lack thereof,

implemented by Edler. Ultimately, it is Defendant Edler’s failure and refusal to 

follow ECBCC’s written policies, her insistence that Plaintiff be punished after she 

learned that he had filed a complaint against her, and the Board’s acquiescence to 

Defendant Edler’s conduct, and prolonged refusal to give Plaintiff notice and an 

opportunity to be heard which gives rise to this lawsuit. 

Accordingly, Defendant Edler’s argument is without merit. 

IV. ATTORNEY’S FEES

Defendant Edler requests an award of attorney’s fees pursuant to Section 

401.425(6), Florida Statutes. However, Defendant Edler is not entitled to 

attorney’s fees. As argued above, Defendant Edler’s arguments for dismissal are 

without merit and due to be denied. Thus, Defendant Edler is not a prevailing 

party, and is not entitled to attorney’s fees. 

Second, Section 401.425 does not apply here, as that statute applies only to 

actions taken while performing services as a member of an emergency medical 

review committee. Fla. Stat. § 401.425(4). Here, while the story of this lawsuit 

began with the inappropriate QA meeting, it is Defendant Edler’s actions as the 

Escambia County Medical Director in insisting on punishing Plaintiff without 

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Plaintiff’s Response in Opposition to Defendants Rayme Edler’s Motion to Dismiss

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following ECBCC’s written policies well after the QA meeting, and only after she 

learned that Plaintiff had lodged a complaint against her, that gives rise to 

Plaintiffs lawsuit. Plaintiff’s position is clearly supported by the fact that at the 

conclusion of the QA meeting, the QA board made no recommendations for 

remediation, re-training, or performance improvement. [ECF No. 20, ¶ 27]. It was 

not until after Defendant Edler learned of Plaintiff’s complaint against her that she 

sought to discipline Plaintiff. [ECF No. 20, ¶ 31]. Thus, the QA meeting is not the 

basis of her liability, but instead, the basis of Defendant Edler’s liability are her 

actions taken well after, and separate from the QA meeting which were punitive in 

nature and done as retribution for Plaintiff filing a Complaint against her. 

Accordingly, even if Defendant Edler were to prevail, she is not entitled to 

attorney’s fees pursuant to Fla. Stat. § 401.425(6), or any other stature, rule, or 

regulation. 

V. WHISTLEBLOWER CLAIM

This claim is brought against ECBCC, and Defendant Edler in her official 

capacity, and not against Defendant Edler in her individual capacity. 

VI. ALTERNATIVELY, PLAINTIFF REQUESTS THE OPPORTUNITY 

TO AMEND HIS COMPLAINT

Although Plaintiff believes the FAC adequately alleges liability against the 

Defendant Edler, should this Court find Plaintiff’s Complaint defective in any way, 

Plaintiff respectfully requests leave to amend. Rule 15(a) of the Federal Rules of 

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Plaintiff’s Response in Opposition to Defendants Rayme Edler’s Motion to Dismiss

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Civil Procedure declares that leave to amend a complaint should be freely given by 

the Court when justice so requires. See Foman v. Davis, 371 U.S. 178, 83 S.Ct. 227 

(1962) (“Rule 15(a) declares that leave to amend 'shall be freely given when justice 

so requires'; this mandate is to be heeded...”). “If the underlying facts or 

circumstances relied upon by a plaintiff may be a proper subject of relief, he ought 

to be afforded an opportunity to test his claim on the merits.” Id. “In the absence of 

any apparent...reason – such as undue delay, bad faith or dilatory motive on the part 

of the movant, repeated failures to cure deficiencies by amendments previously 

allowed, undue prejudice to the opposing party... futility of amendment, etc. – the 

leave sought should, as the rules require, be freely given. ” 

Here, this case is in its preliminary stages, and the parties will suffer no 

prejudice by permitting amendment to Plaintiff’s Complaint. While the original 

Complaint has been amended once, that amendment occurred subsequent to the 

Defendants removing this case to Federal Court. Accordingly, should the Court find 

that the FAC is defective for any reason, under the liberal standard for leave to 

amend, the Court should grant Plaintiff the opportunity to amend his Complaint.

While Plaintiff believes the FAC satisfies the plausibility pleading standard, 

amendment would not be futile because Plaintiff would seek to add additional 

allegations such as the allegation raised above regarding Defendant Edler’s 

statements about the scope of her authority as Medical Director in a separate lawsuit, 

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Plaintiff’s Response in Opposition to Defendants Rayme Edler’s Motion to Dismiss

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as well as the opinion of Assistant County Attorney Kia Johnson finding that 

employee discipline is not within the discretionary authority of Defendant Edler. See 

Exhibits A, B. 

VII. CONCLUSION

Accordingly, for the foregoing reasons, this Honorable Court should find that 

the Defendant Edler’s Motion to Dismiss is without Merit. Thus, Plaintiff 

respectfully requests that the Court deny Defendant Edler’s Motion to Dismiss. 

Alternatively, should the Court find that the FAC does not adequately allege 

claims against Defendant Edler in her individual capacity, then Plaintiff respectfully 

requests leave of Court to file an amended complaint.

Respectfully submitted,

/s/ Jeremiah J. Talbott

JEREMIAH J. TALBOTT, ESQ.

Fla. Bar No. 0154784

CERTIFICATE OF COMPLIANCE WITH LOCAL RULE 7.1(F)

In accordance with N.D. Fla. Loc. R. 7.1(F), counsel for the Plaintiff hereby 

certifies there are 5,368 words in this Response in Opposition to Defendant Edler’s

Motion to Dismiss, not including the case style, signature blocks, or certificates. 

/s/ Jeremiah J. Talbott

JEREMIAH J. TALBOTT, ESQ. 

Attorney for Plaintiffs

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Plaintiff’s Response in Opposition to Defendants Rayme Edler’s Motion to Dismiss

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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on this 8th day of June 2020, a true and 

correct copy of the foregoing Response was furnished to counsel for the Defendant

as listed below via CMC/ECF, E-Mail and U.S. Mail.

/s/ Jeremiah J. Talbott

JEREMIAH J. TALBOTT, ESQ.

SERVICE LIST

Stephanie Pidermann, Esquire

Lydecker Diaz

1221 Brickell Avenue, 19th Floor

Miami, FL 33131

sp@lydeckerdiaz.com

kg@lydeckerdiaz.com

ksm@lydeckerdiaz.com

Cecily L. Kaffer, Esq.

The Kullman Firm

P.O. Box 1287

Mobile, AL 36633

clk@kullmanlaw.com

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