UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

JACK D. DENTON

Plaintiff,

v. CASE NO.: 4:20-cv-00425-AW/MAF

JOHN E. THRASHER, President of Florida

State University, in his official and individual

capacities, et al.

Defendants.

____________________________________________/

DEFENDANTS DARALDIK AND HARMON’S

MOTION TO DISMISS COMPLAINT WITH PREJUDICE AND 

SUPPORTING MEMORANDUM OF LAW

Defendants Ahmad Daraldik and Alexander Harmon hereby move this Court 

to dismiss Plaintiff Jack Denton’s Complaint (ECF No. 1) pursuant to Rule 

12(b)(6), Federal Rules of Civil Procedure, and as grounds therefore, state as 

follows: 

1. Plaintiff asserts a three-count claim against Daraldik and Harmon in

their individual and official capacities. Plaintiff brings this claim under 42 U.S.C. 

§ 1983, alleging Plaintiff was removed from his position as President of Florida 

State University’s (“FSU”) Student Senate, which is a part of FSU’s Student 

Government Association (“SGA”), in violation of the First Amendment to the 

United States Constitution. 

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2. This Court should dismiss Plaintiff’s Complaint, pursuant to Fed. R. 

Civ. P. 12(b)(6), for failure to state a claim upon which relief can be granted. 

Specifically, dismissal is warranted because: (1) Daraldik and Harmon are not state 

actors and thus cannot be subjected to liability under 42 U.S.C. § 1983; (2) 

qualified immunity bars Plaintiff’s claims against Daraldik and Harmon; (3) 

Plaintiff fails to plead sufficient facts to state claims for relief against Daraldik and 

Harmon; and (4) Plaintiff should not be able to maintain official capacity claims 

against Daraldik and Harmon.

WHEREFORE, for the reasons set forth in the Memorandum of Law, 

incorporated infra, Defendants Daraldik and Harmon respectfully request this 

Court dismiss Plaintiff’s Complaint with prejudice.

MEMORANDUM OF LAW

In determining whether dismissal is warranted under Rule 12, the allegations 

of the complaint are taken as true and construed in the light most favorable to the 

non-moving party. See Scott v. Taylor, 405 F.3d 1251, 1253 (11th Cir. 2005). To 

avoid dismissal, “a complaint must contain sufficient factual matter, accepted as 

true, to ‘state a claim for relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 

U.S. 662, 678 (2009) (quoting Bell Atlantic v. Twombly, 550 U.S. 544, 570 

(2007)). The Court’s analysis must disregard conclusory statements in the 

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complaint, as well as legal conclusions pled as factual allegations. Iqbal, 556 U.S. 

at 678.

I. Lack of State Action Precludes Liability Against Daraldik and Harmon 

Under 42 U.S.C. § 1983.

“The ultimate issue in determining whether a person is subject to suit under 

§ 1983 is the same question posed in cases arising under the Fourteenth 

Amendment: is the alleged infringement of federal rights ‘fairly attributable to the 

state?’” Rendell–Baker v. Kohn, 457 U.S. 830, 838 (1982). A court’s inquiry ends 

where the actions of the defendants are not state action. Id. 

The § 1983 claims against Daraldik and Harmon fail to allege state action by 

these two FSU students. Plaintiff’s Complaint seeks to impose § 1983 liability on 

Daraldik and Harmon not due to any affirmative acts they individually took against 

Plaintiff, but rather, for the sole fact that these two individuals are figure-heads of 

the Student Senate, in that they serve as the Senate President and President Pro 

Tempore. Regardless, “student members of a student government organization are 

not state actors in the absence of allegations that college officials ‘coerced or 

encouraged’ the alleged acts of the students. Dharod v. Los Angeles City Coll., 

2011 WL 3555622, at *6 (C.D. Cal. June 7, 2011), report and recommendation 

adopted, 2011 WL 3555793 (C.D. Cal. Aug. 11, 2011), aff'd in part, vacated in 

part, remanded, 509 F. App’x 664 (9th Cir. 2013) (citing Husain v. Springer, 494 

F.3d 108, 134-35 (2d Cir. 2007), cert denied, 552 U.S. 1258 (2008)); see also, San 

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Francisco Arts & Athletics, Inc. v. United States Olympic Committee, 483 U.S. 

522, 546 (1987) (holding a government failure to supervise or “mere approval or 

acquiescence” in the private decision of a private actor does not render the private 

entity a state actor).

In Dharod, the plaintiff, an elected member of the college’s student 

government, brought claims alleging constitutional violations, pursuant to § 1983, 

against fellow students serving in student government, after the plaintiff was 

impeached and removed from the student senate. The plaintiff’s claims were 

dismissed with prejudice on a finding that the student defendants were not acting 

under the color of state law in impeaching the plaintiff. Dharod, 2011 WL 

3555622 at *7. The Dharod court concluded that the private decisions made by the 

private student defendants were insufficient to transform the student defendants 

into state actors.1 Id. (citing San Francisco Arts & Athletics, Inc., 483 U.S. at 546); 

see also, Florida A&M University Bd. Of Trustees v. Bruno, 198 So. 3d 1040, 

1044-45 (Fla. 1st DCA 2016) (finding “student government is an extracurricular 

activity-not real government-and it is well-settled that students have no 

constitutionally protected right to participate in extracurricular activities) (citations 

omitted). “[T]he mere fact that the students’ conduct was ‘authorized by state law’

1 The Ninth Circuit specifically affirmed this portion of the district court’s opinion. 

Dharod, 509 F. App’x at 664.

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[is] insufficient to demonstrate that the students were state actors.” Dharod, 2011 

WL 3555622 at *7 (citing Husain, 494 F.3d at 116-18, 134-35).

Plaintiff has brought three counts against Daraldik and Harmon, all under § 

1983. The entire complaint asserted against Daraldik and Harmon should be 

dismissed because Plaintiff fails to allege that FSU officials “coerced or 

encouraged” any acts specifically attributable to these Defendants. This dismissal 

should be with prejudice, as Plaintiff’s verified Complaint admits that “University 

officials took no action to correct the Student Senate’s clear violation of Mr. 

Denton’s rights, despite having the authority to do so.” (ECF No. 1, p. 4-5, ¶ 8). 

Plaintiff expressly recognizes neither Daraldik nor Harmon were compelled by 

FSU to take any action. As Rendell–Baker v. Kohn provides, this Court’s inquiry 

stops here as no state action occurred. Rendell–Baker, 457 U.S. at 838; see also, 

Dharod, 2011 WL 3555622, at *7 (finding dismissal with prejudice appropriate 

where the plaintiff alleged the college officials did not intervene in the studentdefendants’ actions). Dismissal with prejudice, of Plaintiff’s claims against 

Daraldik and Harmon in both their individual and official capacities, is warranted. 

II. Qualified Immunity Bars Claims Brought Against Daraldik and 

Harmon in their Individual Capacities.

If this Court were to find that Plaintiff adequately pleaded state action on 

Daraldik and Harmon’s part, dismissal with prejudice is nevertheless warranted

because these defendants are entitled to qualified immunity.

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“Qualified immunity” requires courts dismiss claims against government 

actors sued in their individual capacities unless the actors' conduct violates “clearly 

established statutory or constitutional rights of which a reasonable person would 

have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). That qualified 

immunity protects government actors is the usual rule; only in exceptional cases 

will such actors have no shield for claims made against them in their individual 

capacities. Id. The immunity protects “all but the plainly incompetent or those 

who knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 341 (1986); see 

also, Holt v. U.S. Atty. Gen., 486 F. App’x 97, 99 (11th Cir. 2012) (noting qualified 

immunity offers complete protection).

Explaining the rationale behind the qualified immunity defense, the Eleventh

Circuit has stated:

Claims for money damages against government officials 

in their individual capacity involve substantial costs not 

only for the individual official—who incidentally may be 

innocent—but for society in general. “These social costs 

include the expenses of litigation, the diversion of official 

energy from pressing public issues, and the deterrence of 

able citizens from acceptance of public office. Finally,

there is the danger that fear of being sued will ‘dampen 

the ardor of all but the most resolute, or the most

irresponsible [public officials], in the unflinching 

discharge of their duties.’”

Foy v. Holston, 94 F.3d 1528, 1532 (11th Cir. 1996) (quoting Harlow, 457 U.S. at 

814). “Qualified immunity is meant to ensure that government officials are not 

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afraid to fulfill their job-related responsibilities.” Williams v. Consol. City of 

Jacksonville, 381 F.3d 1298, 1307 (11th Cir. 2004) (citation omitted).

These policies behind the qualified immunity defense dictate that the 

defense be decided as early as possible in a case. See, e.g., Anderson v. Creighton, 

483 U.S. 635, 646 n. 6 (1987). A reviewing court may address qualified immunity 

by motion to dismiss. See, e.g., Randall v. Scott, 610 F.3d 701 (11th Cir. 2010)

(affirming district court order granting motion to dismiss on qualified immunity 

grounds).

“In order to receive qualified immunity, the public official must first prove 

that he was acting within the scope of his discretionary authority when the 

allegedly wrongful acts occurred.” Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir. 

2002). Government employees act within their discretionary authority where 

objective circumstances show the challenged actions occurred in the performance

of the employees’ duties “and within the scope of this authority.” Boyce v. 

Andrew, 510 F.3d 1333, 1341 (11th Cir. 2007) (citing Hill v. Dekalb Reg’l Youth 

Det. Ctr., 40 F.3d 1176, 1185 n. 17 (11th Cir. 1994)).

If this Court finds that, contrary to the argument supra, the factual assertions 

against Daraldik and Harmon plead state action, this Court should conclude these 

defendants were acting within the scope of their discretionary authority, as the 

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facts alleged against these defendants are all related to acts carried out in their 

capacity as SGA student senators.

2

Establishing the alleged constitutional violation occurred while the public 

official was acting within the scope of discretionary authority, the burden shifts to 

the plaintiff to overcome the defense of qualified immunity. Moran v. Cameron, 

362 F. App’x 88, 92 (11th Cir. 2010) (citing Kingsland v. City of Miami, 382 F.3d 

1220, 1232 (11th Cir. 2004)). “The applicability of qualified immunity is subject 

to a two-part test, which asks whether the officer's conduct amounted to a 

constitutional violation, and whether the right violated was clearly established at 

the time of the violation.” Blickley v. Ford, 390 F. App’x 890, 892 (11th Cir. 

2010). The order of the inquiry is fluid, providing the reviewing court the 

flexibility to address the two issues in either order. Blickley, 390 F. App’x at 892;

Lewis v. City of West Palm Beach, Fla., 561 F.3d 1288, 1291 (11th Cir. 2009) 

(citing Pearson v. Callahan, 555 U.S. 223, 242 (2009)). If a plaintiff cannot prove 

either part of the two-part test, further inquiry into the other part is not necessary 

by the reviewing court, as the government official is entitled to qualified immunity. 

See, e.g., Melton v. Abston, 841 F.3d 1207, 1221 (11th Cir. 2016) (noting a 

plaintiff must establish both prongs of the analysis to overcome a defense of 

2

 It seems impossible that Daraldik and Harmon’s actions could be state action for 

§ 1983 purposes and somehow not concurrently taken within their discretionary 

authority as student senators.

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qualified immunity); Federov v. Board of Regents, 194 F. Supp. 2d 1378, 1390 

(S.D. Ga. 2002).

A. The Law is Not Clearly Established.

Daraldik and Harmon are entitled to qualified immunity because Plaintiff 

cannot show that the rights asserted by him were clearly established at the time of 

the alleged violation. “For the law to be clearly established, the law must have

earlier been developed in such a concrete and factually defined context to make it 

obvious to all reasonable government actors, in the defendant’s place, that ‘what he 

is doing’ violates federal law.” Sherrod v. Johnson, 667 F.3d 1359, 1363 (11th

Cir. 2012) (citing Anderson v. Creighton, 483 U.S. 635, 640 (1987)).

Plaintiff’s burden is not satisfied by referencing abstract constitutional 

guarantees. Anderson, 483 U.S. at 640. Where precedent makes the unlawfulness 

of the defendant’s actions apparent, then the law is clearly established. McMillian 

v. Johnson, 88 F.3d 877,881 n.6 (11th Cir. 1995). In determining whether the law 

was clearly established, this Court should look only to binding precedent at the

time of the challenged conduct, which includes decisions of the Supreme Court, 

decisions of the Eleventh Circuit, or decisions of the Florida Supreme Court. 

Echols v. Lawton, 913 F.3d 1313, 1324 (11th Cir. 2019). “If case law, in factual 

terms, has not staked out a bright line, qualified immunity almost always protects 

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the defendant.” Post v. City of Fort Lauderdale, 7 F.3d 1552, 1557 (11th Cir. 

1993).

Plaintiff cannot show the law is clearly established under the particular facts 

of this case. Simply, Plaintiff cannot point to decisions addressing the bounds of 

the First Amendment in the student government context, making it obvious to 

Daraldik and Harmon, that the actions attributed specifically to them violated 

federal law. There are no decisions of the Supreme Court, Eleventh Circuit, or 

Florida Supreme Court that satisfy Plaintiff’s burden.

While there are no decisions that establish the second prong of the qualified 

immunity analysis for Plaintiff, there are decisions which support Daraldik and 

Harmon’s entitlement to qualified immunity. For example, in Siddique v. 

Lailiberte, 2020 WL 5035811 (7th Cir. Aug. 26, 2020), the Seventh Circuit Court 

of Appeals recently addressed a claim with facts similar to those before this Court. 

In Siddique, the plaintiff was a student at the University of Wisconsin whose 

application for a student-government position was rejected. Id. at *1. The plaintiff 

alleged the rejection violated his First Amendment rights, contending that he was 

retaliated against for his critical stances against the university administration who 

worked with the student government. Id. The district court found qualified 

immunity applied by concluding that federal law had not clearly established the 

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right of a student to participate in student government. Id. at *3. The Seventh 

Circuit affirmed. Id.

Finding the defendants were entitled to qualified immunity, the Siddique

court found:

[W]e must “define carefully, and at the right level of detail, the 

constitutional right” being asserted. Frederickson v. Landeros, 943 

F.3d 1054, 1059 (7th Cir. 2019); see also White v. Pauly, --- U.S. ---, 

137 S. Ct. 548, 552, 196 L.Ed.2d 463 (2017) (per curiam). For a right 

to be clearly established, “existing precedent must have placed the 

statutory or constitutional question beyond debate.” Mullinex v. Luna, 

--- U.S. ---, 136 S.Ct. 305, 308, 193 L.Ed.2d 255 (2015) (quoting 

Ashcroft v. al-Kidd, 536 U.S. 731, 741, 131 S. Ct. 2074, 179 L.Ed.2d 

1149 (2011)). And while a case directly on point is not required, “the 

clearly established law must be ‘particularized’ to the facts of the 

case.” White, 137 S. Ct. at 552 (quoting Anderson v. Creighton, 483 

U.S. 635, 640, 107 S. Ct. 3034, 97 L.Ed.2d 523 (1987)).

Siddique, 2020 WL 5035811 at *4. The court found no cases addressing the 

bounds of First Amendment retaliation in the student government context, much 

less the factual context presented by the plaintiff. Id. The court found it was “left 

without any analogous comparators applying First Amendment retaliation 

principles to student-government operations” and as such, the plaintiff “did not 

meet his burden in coming forward with clearly established federal law that places 

‘the statutory or constitutional question beyond debate.’” Id. at *5 (citations 

omitted).

The analysis in Siddique compels a similar conclusion here. The Seventh

Circuit addressed the asserted right of participation in student government, and 

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could find no authority clearly establishing that right. In this case, the particular 

factual context is far narrower than Siddique. There is no question that Plaintiff 

continues to participate in student government, as even after the no-confidence 

vote, Plaintiff remains a senator. The particular right Plaintiff proffers in this case 

is not simply a right to participate in student activities, but rather, an alleged 

constitutional right to remain a figure-head of a student organization that selfdetermines, by a democratic vote, who serves amongst themselves as such figurehead. Plaintiff cannot come forward with clearly established law that puts this 

question beyond debate. Daraldik and Harmon are entitled to qualified immunity. 

B. Deficiency in Plaintiff’s Factual Pleadings.

In addition to showing a clearly established right at the time of the 

challenged conduct, the Plaintiff also must plead facts showing that the state actor 

violated a statutory or constitutional right to overcome qualified immunity. 

Echols, 913 F.3d at 1319. Plaintiff fails to meet this pleading obligation for either 

Daraldik or Harmon.

The pleadings specifically mentioning Harmon are practically non-existent. 

After the case style, Harmon’s name does not show up in the pleading until page 

eleven, where it is simply mentioned that he is the Senate President Pro Tempore 

and has the powers and duties of the Senate President in the president’s absence. 

(ECF No. 1, p. 11, ¶¶ 47-48). Plaintiff later alleges Harmon is, “on information 

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and belief,” a member of a particular caucus in the Senate. (Id. at p. 21, ¶ 103). 

Harmon is alleged to “continue to enforce” the Senate’s actions against Plaintiff 

(presumably the June 5, 2020, no-confidence vote against Plaintiff). (Id. at p. 25, ¶

124). Plaintiff’s factual allegations against Harmon fall far short of making the 

requisite showing that Harmon violated a statutory or constitutional right of

Plaintiff. The Complaint’s allegations against Harmon do not even allege Harmon 

took even one singular affirmative act-Harmon simply has no liability in this case, 

and is certainly entitled to qualified immunity.

The pleadings against Daraldik fare no better for Plaintiff. Aside from the 

case style, the Complaint’s next mentioning of Daraldik is on page ten, where it is 

simply alleged that he is the Senate President. (Id. at p. 10, ¶ 38). Daraldik is next 

alleged to be the “presiding officer” of the Senate and vaguely asserts Daraldik has 

“authority” over all other officers in the Senate. (Id. at p. 11, ¶¶ 45-46). Plaintiff 

next mentions Daraldik as having replaced Plaintiff after the no-confidence vote, 

“as required by Senate rules.” (Id. at p. 22, ¶ 109). Daraldik is similarly alleged to 

“continue to enforce” the Senate’s actions against Plaintiff. (Id. at p. 25, ¶ 124). 

The Complaint alleges FSU President Thrasher commented on statements made by 

Daraldik, which has no relevance to the facts at hand. (Id. at p. 26, ¶ 128). Finally, 

Plaintiff alleges Daraldik was simply presiding when the Student Senate referred a 

nomination to the Judiciary Committee. (Id. at pp. 30-31, ¶ 154).

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In a forty-nine-page verified complaint, consisting of two-hundred and fortythree numbered paragraphs, Harmon is mentioned by name on four occasions and 

Daraldik on seven occasions. None of the allegations show either Daraldik or 

Harmon violated Plaintiff’s constitutional rights-the allegations do not come close 

to hitting this mark.

The silence in Plaintiff’s Complaint, as it relates to any affirmative acts by 

these defendants, is revealing. The pleading does not suggest Daraldik or Harmon 

took any affirmative acts that allegedly violated Plaintiff’s rights (e.g., the pleading 

does not suggest either voted on the no-confidence issue) or that these individuals 

had some ability, for example, to veto the will and acts of the majority in this 

student organization. The pleading is silent, for example, on the fact of whether 

Harmon was even present for the time in which Plaintiff alleges his rights were 

violated.

It would be improper, as it appears suggested by Plaintiff here, to hold 

Daraldik and Harmon accountable for the actions of the individual senators, or 

vicariously as figure-heads of the student organization. It is well established in the 

Eleventh Circuit that “supervisory” officials are not liable under § 1983 for the 

unconstitutional acts of others. Hartley v. Parnell, 193 F.3d 1263, 1269 (11th Cir. 

1999) (citing Belcher v. City of Foley, 30 F.3d 1390, 1396 (11th Cir. 1994)). It is 

arguable that the defendants could even be considered supervisory, where the 

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Senate is comprised of students having equal votes. Regardless, the Complaint 

lacks any facts establishing these defendants had any authority to stop the conduct 

for which Plaintiff complains.

Daraldik and Harmon are entitled to qualified immunity.

III. Plaintiff Fails to Plead Sufficient Facts to State a Claim Against 

Daraldik and Harmon.

In section II(B) above, Daraldik and Harmon show how Plaintiff failed to 

plead sufficient facts to establish a constitutional violation for purposes of qualified 

immunity. The same showing supports a broader argument that Plaintiff fails to 

plead sufficient facts to state any claims against Daraldik and Harmon.

“[T]he pleading standard Rule 8 announces does not require ‘detailed factual 

allegations,’ but it demands more than an unadorned, the-defendant-unlawfullyharmed-me accusation.” Ashcroft, 556 U.S. at 678 (citing Twombly, 550 U.S. at

555). “A pleading that offers ‘labels and conclusions’ or a ‘formulaic recitation of 

the elements of a cause of action will not do’.... Nor does a complaint suffice if it 

tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Id. (citing 

Twombly, 550 U.S. at 555, 557). In addressing a motion to dismiss for failure to 

state a claim, the Court in Ashcroft provided:

To survive a motion to dismiss, a complaint must contain sufficient 

factual matter, accepted as true, to “state a claim to relief that is 

plausible on its face.” 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 

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alleged. The plausibility standard is not akin to a “probability 

requirement,” but it asks for more than a sheer possibility that a 

defendant has acted unlawfully. Where a complaint pleads facts that 

are “merely consistent with” a defendant’s liability, it “stops short of 

the line between possibility and plausibility of ‘entitlement to relief.’”

Ashcroft, 556 U.S. at 678 (citations omitted) (emphasis added).

Plaintiff alleges First Amendment Retaliation, First Amendment Content and 

Viewpoint Discrimination, and First Amendment Hostility claims against Daraldik, 

Harmon, and three FSU officials. (ECF. No. 1, ¶¶ 195-243). Plaintiff fails to 

specifically name Daraldik or Harmon in any of the forty-nine paragraphs of these 

counts. These paragraphs are replete, however, with references as to how the 

“Student Senate” allegedly wronged Plaintiff through the democratic process 

existent in the student organization. (See, e.g., id. at ¶¶ 204-206). These counts 

also contain vague assertions of “Defendants” (presumably referring to all five 

named defendants) allegedly violating the law. (See, e.g., id. at ¶¶ 212, 228, 243). 

As set forth in section II(B), the Complaint only references Daraldik by name 

seven times and Harmon four times, the majority if not all of which are 

informational only.

Despite the length of Plaintiff’s Complaint, it provides nothing more than 

“threadbare recitals” of the elements of Plaintiff’s claims and “conclusory 

statements” about Daraldik and Harmon’s alleged association with Plaintiff’s 

claims. Even accepting as true all of the Complaint’s allegations, the Complaint 

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simply does not pass the “plausibility” requirement to state a claim against these 

two defendants. The Complaint does not contain any allegations that either 

Daraldik or Harmon took any affirmative acts that deprived Plaintiff of his 

constitutional rights. The Complaint does not successfully indicate, from a factual 

standpoint, what each individual did wrongfully. “[W]here the well-pleaded facts 

do not permit the court to infer more than a mere possibility of misconduct, the 

complaint has alleged - but it has not “show[n]” - “that the pleader is entitled to 

relief.” Ashcroft, 556 U.S. at 679 (citing Fed. R. Civ. P. 8(a)(2)). Plaintiff’s 

Complaint is inadequate to show this Court how Plaintiff is plausibly entitled to 

relief against either Daraldik or Harmon.

IV. This Court Should Dismiss the Official Capacity Claims Against 

Daraldik and Harmon.

Because Plaintiff sued Daraldik and Harmon in their alleged official 

capacities (ECF No. 1, p. 1), the suit raises questions of Eleventh Amendment 

immunity. A suit against a governmental actor in his official capacity is treated as 

a suit against the state. Gamble v. Fla. Dep’t of Health & Rehab. Servs., 779 F.2d 

1509, 1512 (11th Cir. 1986). Plaintiff’s official capacity claims against these 

defendants fail, on immunity grounds, because states are not persons capable of 

being sued within the meaning of § 1983. Will v. Mich. Dep’t of State Police, 491 

U.S. 58, 64, 68 (1989).

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The Ex parte Young doctrine is a narrow exception to Eleventh Amendment 

immunity, which allows “suits against state officers seeking prospective equitable 

relief to end continuing violations of federal law.” Fla. Ass’n of Rehab. Facilities, 

Inc. v. Fla. Dep’t of Health & Rehab Servs., 225 F.3d 1208, 1219 (11th Cir. 2000). 

The doctrine only applies when “a violation of federal law by a state official is 

ongoing as opposed to cases in which federal law has been violated at one time or 

over a period of time in the past.” Id. The Ex parte Young doctrine is not 

applicable “to adjudicate the legality of past conduct.” Summit Med. Assocs., P.C.

v. Pryor, 180 F.3d 1326, 1337 (11th Cir. 1999); see also, Puerto Rico Aqueduct 

and Sewer Authority v. Metcalf & Eddy, Inc., 509 U.S. 139, 146 (1993) (finding 

the Ex parte Young doctrine does not permit judgments against state officers 

declaring they violated federal law in the past).

The Ex parte Young doctrine should not be applied to Daraldik and Harmon. 

These defendants are students, who are members of an extracurricular student 

activity. This Court should dismiss the official capacity claims because Daraldik 

and Harmon are not state officials subject to the doctrine. These defendants should 

not be considered state officers. These students are not proper legal surrogates for 

FSU. “Only if a state officer has the authority to enforce an unconstitutional act in 

the name of the state can the Supremacy Clause be invoked to strip the officer of 

his official or representative character and subject him to the individual 

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consequences of his conduct.” Id. at 1341 (citing Ex parte Young, 209 U.S. 123, 

159-60 (1908)). Neither Daraldik nor Harmon have the authority to enforce any 

act in the name of the State of Florida; the Ex parte Young “fiction” cannot operate 

against these defendants.

Moreover, the allegations against Daraldik and Harmon, as threadbare as 

they are, do not allege, or even suggest, these defendants are individually depriving 

Plaintiff of constitutional rights prospectively; the allegations against these 

defendants seek to adjudicate the legality of Daraldik and Harmon’s past conduct.

Additionally, every defendant in this action has been sued in their official 

capacity, essentially meaning that FSU has been sued five times in this matter. 

Naming five individuals in this suit, all in their official capacity, is duplicative, 

redundant, and “only creates the possibility of confusing a jury.” See, e.g., C.P. v. 

Collier Cty., 145 F. Supp. 3d 1085, 1091 (M.D. Fla. 2015) (citing Busby v. City of 

Orlando, 931 F.2d 764, 776 (11th Cir. 1991)). It makes little sense to name one of 

the two students as FSU’s official-capacity representative, because they are not 

FSU officials and because of the transitional nature of Daraldik and Harmon, due 

to their time-limited tenure as FSU students and as figure-heads of the student 

government (new elections for senators are scheduled for October 2020). 

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CONCLUSION

WHEREFORE, based upon the foregoing grounds and authorities, 

Defendants Daraldik and Harmon respectfully request this Court dismiss this 

action against these defendants with prejudice.

s/Brian C. Keri

BRIAN C. KERI (FBN 0087874)

P.O. Box 13599

Tallahassee, Florida 32317-3599

Telephone: (850) 297-2222

brianckeri@earthlink.net

Attorney for Defendants Daraldik and

Harmon

CERTIFICATE OF COMPLIANCE WITH LOC. R. 7.1(F) 

This response complies with Loc. R. 7.1(F), in that the number of words in

the motion is 4,594.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing has been 

furnished by CM/ECF service to, Mark Welton, Esquire, 1020 S Ferdon Blvd., 

Crestview, FL 32536, David Cortman, Esquire, and Travis Barham, Esquire, 1000 

Hurricane Shoals Rd NE, Lawrenceville, GA 30043, Tyson Langhofer, Esquire, 

20116 Ashbrook Place, Ashburn, VA 20147, Robert Sniffen, Esquire, Elmer 

Ignacio, Esquire and Jeffrey Slanker, 123 N Monroe St, Tallahassee, FL 32301, on 

September 23, 2020.

s/Brian C. Keri

Brian C. Keri

Case 4:20-cv-00425-AW-MAF Document 49 Filed 09/23/20 Page 20 of 20