UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

JACK D. DENTON,

Plaintiff,

Case No.: 4:20-cv-00425-AW-MAF

v.

JOHN E. THRASHER, President of

Florida State University, in his official 

and individual capacities, et al.,

Defendants.

/

DEFENDANT THRASHER, HECHT AND BOWDEN’S 

MOTION TO DISMISS COMPLAINT WITH PREJUDICE

AND SUPPORTING MEMORANDUM OF LAW

Defendants, JOHN E. THRASHER, in his official and individual capacities 

(“President Thrasher”); AMY HECHT, in her official and individual capacities 

(“Vice President Hecht”); and BRANDON BOWDEN, in his official and individual 

capacities (“Director Bowden”) (collectively, the “Administrator Defendants” or 

“Administrators”), pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6), and N.D. Fla. 

Loc. R. 7.1, move to dismiss the Complaint [(Doc. 1)] filed by Plaintiff, JACK D. 

DENTON (“Denton” or “Plaintiff”), with prejudice.

I. Introduction and Facts Pertinent to the Motion

This case involves a classic student government scuffle between Plaintiff and 

his fellow student senate members. Essentially, Plaintiff contends the United States 

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Constitution has been violated because Florida State University (“FSU” or the 

“University”) administrators have not stepped in to referee or inject themselves and

the University into the melee and reinstate Plaintiff to his former post as student 

senate president.

There is no statutory duty to rescue Denton from an intra-student government 

fight. Far from it - Florida law is clear that the University is immunized from liability 

for student government squabbles such as this one. Nor does the U.S. Constitution 

compel the Administrators to override what Plaintiff has characterized as political 

maneuvering by student government members. As Judge Wetherell noted while he 

was a member of the First District Court of Appeal, “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.”1

FSU has not been unsympathetic to Denton’s circumstances and has not 

ignored his concern. Indeed, Vice President Hecht wrote the student senate to 

express her disappointment in the student government’s failure to appoint a 

 

1

 Fla. A&M Univ. Bd. of Trustees v. Bruno, 198 So. 3d 1040, 1044-45 (Fla. 1st

DCA 2016).

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sufficient number of justices to the student supreme court. (Doc. 1-11). FSU’s Office 

of General Counsel advised Denton’s attorneys that the University was hopeful the 

student senate would act so that his appeal could proceed through proper channels. 

(Doc. 10-1). Ultimately, four out of five seats have now been filled, with the fifth 

expected to be confirmed tomorrow.

2 Even if that does not occur, FSU’s student 

body constitution permits the student supreme court chief justice to appoint a fifth 

student justice by designation. (Doc. 1-1 at p. 9, Art. IV, § 3(A)(4)). In either event, 

Denton’s appeal to the student supreme court may be heard.

Plaintiff’s contention that the University and Administrators had a 

constitutional duty to throw itself and themselves into the controversy between 

Denton and his peers is unsupported, and squarely at odds with the reason student 

governments exist at all – to serve as laboratories for students considering a career 

in politics and public life, a place where hard lessons are often learned, coalitions of 

voting blocs often come together to support or oppose individuals and ideas, and 

 

2

 See, Administrators’ Response to Emergency Motion for Preliminary Injunction 

at Hecht Affidavit. A district court may consider extrinsic evidence in ruling on a 

motion to dismiss “if it is (1) central to the plaintiff’s claim, and (2) its authenticity 

is not challenged.” SFM Holdings, Ltd. V. Banc of America Securities, LLC, 600 F.

3d 1334, 1337 (11th Cir. 2010); see also, Brown v. Brock, 169 F. App’x 579, 582 

(11th Cir. 2006).

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students learn how to resolve and oppose conflicts between them. Bruno, 198 So. 3d 

at 1045 n.8 (citing, inter alia, Ala. Student Party v. Student Gov’t Ass’n of the Univ. 

of Ala., 867 F. 2d 1344, 1347 (11th Cir. 1989)).

Plaintiff certainly has the right to use the processes established by the 

University to challenge what his fellow student senators did to him; however, he 

does not have a constitutional right to insist that the University disregard those 

processes for the sake of expediency. Nor does Plaintiff have the statutory or 

constitutional right to compel the University and Administrators to pick sides in the 

culture war Plaintiff ignited and to which the vast majority of his fellow senators 

countered by lighting a fuse of their own. That fight was fought in the laboratory of 

student government and that is where the fight should remain – between Plaintiff 

and his student government colleagues.

Specific to the Administrator Defendants – all of whom have been sued in 

their individual and official capacities3 – the allegations upon which Denton bases 

his theories of liability are:

 

3

 While there are certainly meatier issues presented to the Court, by suing each 

Administrator Defendant in his/her official capacity Plaintiff has effectively sued 

FSU 3 times. Kentucky v. Graham, 473 U.S. 159, 165 (1985) (quotation omitted). 

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President Thrasher

 President Thrasher has “supervisory authority” over all of the 

University’s activities and adopts all University policies. (Complaint at ¶¶ 18-19).

 “Upon information and belief” President Thrasher knows Plaintiff was 

removed from his position in student government and the circumstances surrounding 

the removal. (Complaint at ¶ 127).

 “On information and belief” President Thrasher has the authority to 

insert himself into the affairs of student government and direct the FSU Student 

Senate to follow University policies and state and federal law. (Complaint at ¶ 23).

 President Thrasher “has authority over” all FSU Vice Presidents. “On 

information and belief” President Thrasher knows that Denton asked Vice President 

Hecht to bypass the Student Supreme Court’s review of the dispute and reinstall 

Denton as Student Senate President. President Thrasher also has the “authority and 

the obligation” to direct Vice President Hecht to put Denton back into his former 

role as Student Senate President. (Complaint at ¶¶ 24, 181-182).

Vice President Hecht

 Vice-President Hecht approves all SGA legislation and is President 

Thrasher’s representative in student life and governance matters. (Complaint 

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at ¶¶ 25, 29). She oversees the Division of Student Affairs, which includes the 

Department of Student Government & Advocacy (“DSGA”) and supervises Director 

Bowden. (Complaint at ¶¶ 26, 34).

 Vice-President Hecht has certain specific authority relative to student 

government (the authority to approve or veto the budget passed by the Student 

Senate), adjudicate disputes arising from “charges of any act by a student 

organization in violation of laws, rules, regulations, policies or procedures.”

(Complaint at ¶ 31).

 She has authority to hear an appeal of any decision by the Student 

Supreme Court. (Complaint at ¶ 32). “On information and belief” Ms. Hecht has the 

authority to “order” student government participants to comply with the law and 

University policy, but failed to intervene. (Complaint at ¶¶ 33, 126).

Director Bowden

 Like Vice President Hecht, “on information and belief” Director 

Bowden has the authority “order” students participating in student government to 

comply with the law. (Complaint at ¶ 37).

 “On information and belief” as the Interim Director of the DSGA, 

Director Bowden has the power to intervene, but did not do so. (Complaint at ¶131).

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II. Argument and Authority

A. Plaintiffs Lack Standing to Maintain This Action

1. Fundamental Standing Principles

The authority of the United States District Courts is limited by Article III of 

the United States Constitution. Valley Forge Christian College v. Americans United

for Separation of Church and State, 454 U.S. 464, 470 (1982). Those who seek to 

invoke the jurisdiction of the federal courts “must satisfy the threshold requirement 

by Article III of the Constitution by alleging an actual case or controversy.” City of 

Los Angeles v. Lyons, 461 U.S. 95, 101 (1983).

Indeed, Federal courts do not have the authority to “seek out and strike down 

any governmental act that they deem to be repugnant to the Constitution.” Jay F. 

Hein ,White House Office of Faith-Based and Community Initiatives v. Freedom 

from Religion Foundation, Inc., 551 U.S. 587, 598 (2007). “No principle is more 

fundamental to the judiciary’s proper role in our system of government than the 

constitutional limitation of federal-court jurisdiction to actual cases or 

controversies.” Id. (quoting Raines v. Byrd, 521 U.S. 811, 818 (1997)).

The constitutional requirements for a federal court to adjudicate a case are 

accompanied by prudential requirements. See, e.g., Bennett v. Spear, 520 U.S. 154,

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162 (1997). These constitutional and prudential requirements form the doctrine of 

standing. Id.; Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992).

Plaintiffs bear the burden of establishing standing “in the same way as any 

other matter on which the plaintiff bears the burden of proof, i.e., with the manner 

and degree of evidence required at successive stages of the litigation,” and 

establishes a “case or controversy” for Article III standing purposes where he has 

suffered an “injury in fact,” an invasion of a legally protected interest which is 

concrete and particularized and actual or imminent, not conjectural or hypothetical. 

Lujan, 504 U.S. at 560-61 (1992). 

In addition to the injury component, a plaintiff must plead and prove that that 

the injury suffered is “fairly traceable to the defendant's allegedly unlawful conduct 

and likely to be redressed by the requested relief.” Allen v. Wright, 468 U.S. 737, 

751 (1984). A Federal court must analyze the realities of the litigation against these 

three prongs (injury-in-fact, traceability and redressability) and “satisfy themselves 

that the plaintiff has ‘alleged such a personal stake in the outcome of the controversy’ 

as to warrant his invocation of federal-court jurisdiction.” Summers v. Earth Island 

Inst., 555 U.S. 488, 493 (2009) (quoting Warth v. Seldin, 422 U.S. 490, 498 (1975)).

“[S]tanding is a threshold jurisdictional question which must be addressed prior to 

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and independent of the merits of a party's claims.” Swann v. Secretary, 668 F.3d

1285, 1288 (11th Cir. 2012) (citations and quotations omitted).

Although this pleading burden is not insurmountable, the “[f]actual 

allegations must be enough to raise a right to relief above the speculative level.” Bell 

Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007); Ashcroft v. Iqbal, 556 U.S. 

662, 679 (2009) (“While legal conclusions can provide the framework of a 

complaint, they must be supported by factual allegations.”). Further, to survive 

dismissal a plaintiff must allege “enough facts to state a claim to relief that is 

plausible on its face.” Twombly, 550 U.S. at 570. 

2. Plaintiff Cannot Establish Traceability

Plaintiff’s claims against the University and Administrators do not establish 

Article III standing because the actions of Plaintiff’s fellow student senators are not 

fairly traceable to these Defendants. Any injury allegedly suffered by the Plaintiff 

from his removal as student senate president is exclusively tied to the independent 

actions of Plaintiff’s fellow student senators. Neither FSU nor the Administrators

took any action against Plaintiff because of his speech or his religious beliefs. That 

student senators chose to fight over sensitive societal issues within the student 

government arena does not establish standing against the University and the 

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Administrators. Put another way, Plaintiff cannot drag FSU and its Administration 

into his fight with his fellow student senators because he lacks standing to do so.

The failure to establish traceability based on the lack of an affirmative action

should end the standing inquiry; however, Denton will no doubt argue that the 

Administrator Defendants’ and University’s failure to step in, overturn the actions 

of the student senate, purge (that is, destroy) records related to Plaintiff’s removal

and restore him to his position pursuant to the broad authority given to the 

Administrators is, without more, sufficient. Fortunately, last year and then again 

earlier this month, the Eleventh Circuit squarely addressed the traceability element 

of standing in the face of allegations that a government entity failed to act or correct 

unconstitutional conduct.

In Lewis v. Governor of Ala., 944 F. 3d 1287 (11th Cir. 2019) (en banc), the 

Eleventh Circuit considered Article III standing in a case arising out of “a political 

tug-of-war between the State of Alabama and the City of Birmingham over 

economic policy – in particular, over minimum wage rates.” Id. at 1292. The 

Birmingham City Council adopted a resolution calling upon the Alabama 

Legislature to raise the statewide minimum wage at a rate exceeding that prescribed 

by federal law. The Legislature refused. In response, the City enacted its own 

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ordinance. Id. The following year, the Legislature considered and ultimately passed 

a preemption bill declaring such ordinances void; however, while the bill travelled 

through the legislative process, the City passed a second ordinance immediately 

raising the minimum wage 39%, provided an enforcement mechanism through a 

private right of action, and levied fines against non-compliant businesses. Id. at 

1292-93. Birmingham’s mayor signed the ordinance into effect, however the very 

next day the preemption bill was signed into law by the governor. Id. at 1294.

Rather than suing their employers for ordinance violations, the plaintiffs sued 

the Alabama Attorney General and several other government entities for race 

discrimination under the Equal Protection Clause of the Fourteenth Amendment and 

sought to enjoin enforcement of preemption law. Id. at 1294-95. The district court 

dismissed the claim as to all defendants for lack of standing, but a panel of the 

Eleventh Circuit reversed, finding that plaintiffs had standing to sue the Alabama 

Attorney General because his “broad authority to interpret and enforce” the 

preemption law provided the sufficient causality to plaintiffs’ injuries. Id. at 1295. 

The panel also found “an order declaring the Act unconstitutional and enjoining the 

Attorney General from enforcing it ‘would go a long way toward redressing the 

plaintiffs’ injuries,’” that the Attorney General “had a sufficient connection to the 

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enforcement of the Act to render him a proper defendant under Ex ParteYoung,” and 

that the plaintiffs “adequately alleged discriminatory intent” to state a race based 

Equal Protection claim against the Attorney General. Id.

Sitting en banc, the Eleventh Circuit reversed the panel’s decision on several 

fronts (including standing), finding that the traceability and redressability elements 

had not been satisfied. With respect to the traceability element, the court organized 

its opinion under two standing theories alleged by the plaintiffs – ex ante and ex post

traceability. Id. at 1296-1301.

 With respect to ex ante traceability – the plaintiffs’ contention that the 

Attorney General “refused to perform his statutory duty to inform” the governor and 

Legislature that the law was unconstitutional – the court found that the broad 

authority granted the Attorney General by various Alabama statutes did not create a 

legal duty “to inform anyone of anything” vis-à-vis the constitutionality or 

unconstitutionality of the Act. Id. at 1297-98.

 As for the ex post traceability element – that because the Attorney General 

under his “specter of enforcement” could enforce the Act, either under the Act itself 

or other statutes granting broad authority to bring civil actions “necessary to protect 

the rights and interests of the state”, but was not taking such action, the City of 

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Birmingham faced a roadblock to implementing the minimum wage ordinance. This, 

the plaintiffs argued, satisfied the traceability requirement. The court rejected this as 

well, noting that under the plaintiffs’ theory, if statutes provided general 

enforcement power to the Attorney General to enforce any Alabama law were 

sufficient to confer standing to them to sue the Attorney General “then the Attorney 

General could be made a proper party defendant under innumerable provisions of 

the Alabama Code.” Id. at 1300. 

Lewis is analogous with respect to the “failure to act/failure to stop/failure to 

correct” theory underlying the Complaint’s allegations against the Administrators. 

Denton’s theory regarding why the University and Administrators are liable under 

Section 1983 – they possess broad power under FSU’s regulations but are not using 

it, to Plaintiff’s detriment – is substantially the ex ante theory espoused by the Lewis

plaintiffs. 

Moreover, as Lewis noted with respect to the ex post theory, if a public official 

with broad enforcement powers fails to act in a manner with which an aggrieved 

individual desires, that official can be sued for almost anything. See also, Doe v. 

Pryor, 344 F. 3d 282, 1283 (11th Cir. 2003) (holding traceability element was not 

met where the Alabama Attorney General “ha[d] taken no action to enforce” the 

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State’s law regarding “deviate sexual intercourse”), cited with approval in Lewis, 

944 F. 3d at 1298; see also, Jacobson v. Fla. Sec'y of State, No. 19-14552, 2020 WL 

5289377, at *12 (11th Cir. Sept. 3, 2020)(holding that plaintiff failed to establish 

Article III standing because secretary of state’s position as “the chief election officer 

of the state,” with “general supervision and administration of the election laws,” was 

insufficient to establish that the alleged harm suffered by ballot ordering initiative 

controlled by an independent government official was fairly traceable or capable of 

being redressed by secretary). The same holds true with respect to the general 

authority given by regulation to the Administrators. Following Lewis and the more 

recently issued decision in Jacobson, this Court should exercise the appropriate 

restraint and find that the injury alleged by Plaintiff is not traceable to FSU and the 

Administrator.

3. Plaintiff Cannot Establish Redressability

Lewis is also on point with regard to the lack of redressability of Denton’s 

claims. The court began its analysis of the redressability question by asking if a 

decision in plaintiffs’ favor “would significant[ly] increase the likelihood that she 

would obtain relief that directly redresses the injury that she claims to have 

suffered.” Id. at 1301 (citation and quotations omitted). Second, the Court stated that 

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“it must be the effect of the court’s judgment on the defendant – not an absent third 

party – that redresses the plaintiff’s injury, whether directly or indirectly.” Id. 

(citations and quotations omitted).

Assessing the redressability factor in the context of these two principles, the 

court found that the requested relief against the Attorney General would not 

significantly increase the likelihood that Birmingham employers would follow the 

ordinance. Rather, the court stated that the plaintiffs’ “immediate gripe is wither their 

employers, who aren’t paying the prescribed wages” and that Birmingham 

employers would not be “obliged” in “a binding sense” to “honor an incidental legal 

determination to the suit produced.” Id. at 1301-02 (citing Luhan, 504 U.S. at 569); 

see also, Jacobson, 2020 WL 5289377, at *12 (following Lewis).

The court also addressed indirect or “downstream” redress finding that a 

judgment against the Attorney General would not bind Birmingham employers at 

all. Id. at 1303. The court was persuaded that even if there were no redressability 

concerns and relief was entered against the Attorney General, Birmingham 

employers would likely find other methods to circumvent the court’s non-binding 

judgment, noting that “we’re just not convinced that Birmingham employers would 

go quietly into the night.” Id.

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The same is true here. FSU’s student government is a statutorily-created entity 

that, while not possessing unbridled authority, is entitled to make its own decisions 

without overt intrusion by the University. Only two student senators are parties to 

this action, and unless this Court is willing to: (1) compel the Administrator 

Defendants and the University to act; and (2) act in the manner demanded by the 

Plaintiff, what assurance would the parties or this Court have that the remainder of 

the student senate would “go quietly into the night” and reverse its vote? Would the 

student senate find other grounds to enter a vote of no confidence thereby 

undermining both the Court’s judgment and the directive given by the Administrator 

Defendants acting in accord with that judgment? It would not be the first time college 

students bucked the system, and illustrates the lack of redressability of what Denton 

asks this Court to do vis-à-vis the University and Administrators.

B. Plaintiff’s Supervisory Authority Claim Fails as a Matter of Law

The core theme of Plaintiff’s case is that because the Administrator 

Defendants have general authority over the University (President Thrasher) and 

student affairs (Vice President Hecht and Director Bowden), supervisory liability 

attaches for an action taken against a student (Denton) by other students (FSU’s 

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student senate).4 Plaintiff’s theory of liability is incongruent with well-settled 

precedent interpreting the scope of supervisory liability under Section 1983.

Supervisory officials are not liable under § 1983 for the alleged 

unconstitutional acts of those under their supervision on the basis of respondeat 

superior or vicarious liability. Hartley v Parnell, 193 F.3d 1263, 1269 (11th Cir. 

1999); Belcher v. City of Foley, 30 F.3d 1390, 1396 (11th Cir. 1994). “[T]he mere 

right to control without any control or direction having been exercised and without 

any failure to supervise is not enough to support § 1983 liability.” Monell v. Dep’t 

of Soc. Servs. of N.Y., 436 U.S. 658, 694 n. 58 (1978) (citing Rizzo v. Goode, 423 

U.S. 362, 370–371 (1976)). 

“The standard by which a supervisor is held liable in her individual capacity 

for the actions of a subordinate is extremely rigorous.” Doe v. Sch. Bd. of Broward 

Cty., Fla., 604 F.3d 1248, 1266 (11th Cir. 2010). “Supervisor liability occurs either 

when the supervisor personally participates in the alleged constitutional violation or 

when there is a causal connection between actions of the supervising official and the 

alleged constitutional deprivation.” Braddy v. Fla. Dep't of Labor & Employment 

 

4

 See, Doc. 1 at ¶¶ 18-26; 29-35; 37; 126; 129; and 131. 

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Sec., 133 F.3d 797, 802 (11th Cir. 1998); see also, Salepour v. Univ. of Tennessee, 

159 F. 3d 199, 206-207 (6th Cir. 1998) (stating that university president and 

chancellor were not subject to supervisory liability absent showing they encouraged 

or condoned actions).

Plaintiff has not alleged that any of the Administrators were personally and 

specifically involved in the constitutional deprivation at issue - his removal as senate 

president. A supervisor cannot be held liable under Section 1983 under a negligence 

theory. Accord, Greason v. Kemp, 891 F. 2d 829, 836-37 (11th Cir. 1990). Thus, he 

can only establish liability on the part of the Administrator if he can show a “causal 

connection” between their actions and his removal from the senate president post. 

There is no such connection as a matter of law, based on the facts in the Complaint. 

While the Complaint contains buzzwords suggesting the Administrators may 

be held liable for failing to intervene or stop the alleged constitutional violation, the 

Complaint lacks any facts establishing the Administrators had the specific authority, 

or a statutory or constitutional duty to intervene or stop the complained of conduct. 

This is fatal to the Plaintiff’s theory that the Administrators can be held liable for a 

failure to intervene or stop the alleged constitutional violation because a causal 

connection can only be established in this circumstance where a supervisor has the

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ability to prevent or stop a “known constitutional violation by exercising his 

supervisory authority and he fails to do so.” Am. Fed'n of Labor & Cong. of Indus.

Organizations v. City of Miami, FL, 637 F.3d 1178, 1190 (11th Cir. 2011) (emphasis 

supplied); Keating v. City of Miami, 598 F.3d 753, 765 (11th Cir. 2010). 

Plaintiff claims the Administrators’ general authority over Student 

Government and conduct at FSU provided it the authority to intervene in this specific 

dispute within student government. But this general and broad authority is 

insufficient to establish the causal connection required to support liability under 

Section 1983. A nexus between the violation of federal law and the individual 

accused of violating that law requires more than simply a broad general obligation 

to prevent a violation; it requires an actual violation of federal law by that individual. 

See, Frew ex rel. Frew v. Hawkins, 540 U.S. 431, 437 (2004) (holding that the Ex 

Parte Young doctrine applies when state officials act in violation of state law); Am. 

Fed'n of Labor & Cong. of Indus. Organizations v. City of Miami, FL, 637 F.3d 

1178, 1190 (11th Cir. 2011) (holding that the connection between the harm and actor 

must be “fairly direct” to result in supervisory liability and a “generalized duty to 

enforce state law or general supervisory power over the persons responsible for 

enforcing the challenged provision” is not sufficient). 

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Requiring a more demanding nexus than what has been pled here, as this 

precedent requires, is for good reason. To permit liability against government actors 

based on a general authority to prevent injury by their subordinates would allow the 

Ex Parte Young exception to swallow the rule. Much like the standing argument set 

forth above, plaintiffs could merely name a state official as a defendant to challenge 

any alleged unconstitutional action to seek redress, a result the law does not allow. 

See, Women’s Emergency Network v. Bush, 323 F.3d 937, 949–50 (11th Cir. 2003) 

(citations omitted) (holding that governor was not proper defendant in suit 

challenging state law and noting that if “a governor’s general executive power 

provided a sufficient connection to a state law to permit jurisdiction over him, any 

state statute could be challenged simply by naming the governor as a defendant.”); 

Support Working Animals, Inc. v. DeSantis, No. 4:19CV570-MW/MAF, 2020 WL 

1991479, at *8 (N.D. Fla. Apr. 27, 2020) (holding that secretary of state was not 

proper defendant in case challenging constitutionality of state law because nexus, 

the secretary’s general supervisory and administrative powers and authority to 

expunge unconstitutional laws from the official records of the state, was an 

insufficient connection to the harm and would render Ex Parte Young meaningless). 

In other words, Plaintiff’s theory of liability, as pled, would functionally make FSU 

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liable for any allegation of wrongdoing in breach of federal law at the student 

government level. 

Moreover, the Florida Legislature clearly did not envision liability for state 

universities for student government activities under a respondeat superior theory of 

liability and codified this notion in Section 1004.26(5). Indeed, that statute

contemplates lawsuits such as this one involving an attempt to impose liability on a 

state university for the “actions or decisions” of student governments. § 1004.26(5), 

Fla. Stat. (2020). Absolute immunity is provided to state universities for the actions 

of a student government unless: (1) the action or decision of the student government 

“is made final” by the university; and (2) the action or decision is an actual violation 

of state or federal law. Id.

To be sure, no action or decision of the student government has been “made 

final” by the University, despite Plaintiff’s contention that the removal decision was 

ratified or enforced by the Administrator Defendants. Plaintiff’s theory in this regard 

stems from his allegation that the student senate refused to confirm a full 

complement of supreme court justices for the purpose of stalling the adjudication of 

his complaint challenging his removal as senate president. Through counsel, Plaintiff 

wrote Vice President Hecht claiming that the senate’s failure to confirm supreme 

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court justices amounted to a denial of his complaint permitting him an administrative 

appeal to Vice President Hecht’s office. Plaintiff claims that the failure to act on this

“appeal” amounted to an adoption or ratification of the student senate’s decision. 

This argument is belied by the fact Plaintiff had no direct appeal to the Vice 

President’s office and FSU told him as much. Indeed, FSU and Vice President Hecht 

responded to Plaintiff, through counsel, informing him that FSU would not 

undertake a review of his “appeal” because he had not obtained a decision from the 

student supreme court on his complaint, a condition precedent to University review. 

The student supreme court’s rules require the student supreme court to issue a 

decision on a complaint before that decision may be appealed to the Vice President’s 

office. The University’s recognition that it had no duty or authority to involve itself 

in the student government complaint process before a necessary step had been 

completed was not a ratification of the alleged unconstitutional decision of the 

student senate – it was a recognition of the process that limits University 

involvement in student government affairs.

It is telling that the Complaint does not cite any specific authority authorizing 

the Administrator Defendants to overturn the student senate’s vote and reinstate 

Denton as senate president. Plaintiff’s attempt to hold the Administrator Defendants

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liable through a ratification by inaction theory because they did not act to his 

satisfaction has been rejected by the Eleventh Circuit:

Liability on the basis of ratification exists when a subordinate public 

official makes an unconstitutional decision and when that decision is 

then adopted by someone who does have final policymaking authority 

... The final policymaker, however, must ratify not only the decision 

itself, but also the unconstitutional basis for it. 

Matthews v. Columbia Cty., 294 F.3d 1294, 1297–98 (11th Cir. 2002) (internal 

citations and quotations omitted). Crucially, the Administrator Defendants, through 

counsel, expressly disclaimed adopting the student senate’s decision to remove 

Plaintiff from his post as senate president, or the alleged unconstitutional basis for 

that decision. And no action of any of the Administrator Defendants can be 

characterized as policymaking by any stretch.

To be sure, the ratification theory is typically employed in cases asserting 

Section 1983 liability against a local governmental entity as a means to impute the 

decisions of final policymakers to municipalities. See, Monell, 436 U.S. 658. The 

foregoing assumes such a theory of liability applies in the context of Ex Parte Young

actions. This theory of liability is inapposite here, because the Ex Parte Young

exception is built on the concept that an officer enforcing an unconstitutional law is 

stripped of his official or representative character and thus subjected in his person to 

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the consequences of his individual conduct. 209 U.S. at 159-160 (emphasis added). 

Indeed, “[t]he theory of the case was that an unconstitutional enactment is ‘void’ and 

therefore does not ‘impart to [the officer] any immunity from responsibility to the 

supreme authority of the United States.’” Pennhurst State Sch. & Hosp. v.

Halderman, 465 U.S. 89, 102 (1984) (quoting Young, 209 U.S. at 160). Thus, the Ex

Parte Young exception is based on the pre-existence of unconstitutional conduct by

the individual. If there is no unconstitutional conduct by the individual sued, the 

exception is inapplicable. This is the reason that such actions only lie to essentially 

stop the enforcement of ongoing constitutional harm with the only remedy being 

prospective injunctive relief.

C. Plaintiff’s Official Capacity Claims are Barred by Sovereign Immunity

The constitutional claims brought pursuant to Section 1983 against the 

Administrators in their official capacities are barred by the Eleventh Amendment. 

While technically styled as Ex Parte Young claims, that legal fiction should not apply 

here. 

The Eleventh Amendment has been interpreted by the Supreme Court to 

forbid lawsuits brought by citizens of a state against their own state in federal courts 

under most circumstances. Congress may abrogate state sovereign immunity if it has 

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unequivocally expressed its intent to abrogate the immunity and if it has acted 

pursuant to a valid exercise of power. Seminole Tribe of Fla. v. Fla., 517 U.S. 44, 

55 (1996). The doctrine of sovereign immunity has been interpreted to bar suits 

against an unconsenting state brought by private parties regardless of the nature of 

the relief sought. See, Id.; Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 

100 (1984).

Sovereign immunity, as embodied in the Eleventh Amendment, precludes 

actions brought pursuant to Section 1983 against state entities for money damages 

and for injunctive relief. Indeed, state entities and state officials sued in their official 

capacities are not “persons” subject to suit under Section 1983. See, Will v. Mich. 

Dep't of State Police, 491 U.S. 58, 70–71 (1989). The state of Florida has not waived 

its immunity to suits under Section 1983. See, Gamble v. Fla. Dep't of Health & 

Rehab. Servs., 779 F.2d 1509, 1513-20 (11th Cir. 1986). 

Nevertheless, as the Court is aware the Eleventh Amendment and the doctrine 

of sovereign immunity does not preclude suits against state officers in their official 

capacity for prospective injunctive relief. Ex Parte Young, 209 U.S. 123 (1908); 

Grizzle v. Kemp, 634 F.3d 1314, 1319 (11th Cir. 2011). This is because such suits, 

including suits under Section 1983, are not treated as suits against the state itself. 

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Will, 491 U.S. at 71 n. 10.

The Ex Parte Young doctrine creates a legal fiction allowing a claim against 

a state officer to redress continuing violations of federal law. Verizon Md. Inc. v. 

Public. Serv. Comm’n of Md., 535 U.S. 635, 645 (2002). However, Ex Parte Young

cannot “operate as an exception to ... sovereign immunity where no defendant has 

any connection to the enforcement of the challenged law at issue.” Summit Med. 

Assocs., P.C. v. Pryor, 180 F.3d 1326, 1341 (11th Cir. 1999). Thus, before the 

exception applies, the “state officer [named as a defendant in his official capacity 

must have] the authority to enforce an unconstitutional act in the name of the state.” 

Id. Where the named defendant lacks any responsibility to enforce the statute or 

scheme at issue the real party in interest is the state and the suit remains barred by 

the Eleventh Amendment. Id.

The Administrator Defendants do not have any authority to enforce the 

alleged unconstitutional act and do not have a connection sufficient to support an Ex 

Parte Young claim to proceed against them in their official capacities. Again, the 

student government at FSU is a civics laboratory for students to learn about the 

democratic process. FSU does not have the specific authority or duty to involve itself 

in or enforce the decisions of the student government, if at all, unless and until issues 

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involving student government are properly placed before FSU’s administration. That 

has not happened here. 

While Plaintiff has alleged that a sufficient connection between the 

Administrator Defendants and the alleged unconstitutional act exists by virtue of the 

Administrator Defendants’ broad and general authority over student government at 

FSU, that is insufficient to state an Ex Parte Young claim as a matter of law. It is 

settled law that general executive authority, without a specific authority connecting 

the defendant to harmful act, is not sufficient to provide a connection to the alleged 

unconstitutional action for Ex Parte Young purposes. See, Women's Emergency

Network, 323 F.3d at 949–50 (finding governor’s executive general responsibility 

for enforcement of a statute and “general executive power” insufficient to establish 

a sufficient connection to the statute making him a proper defendant for Ex Parte 

Young purposes where the enforcement of the statute is the responsibility of parties 

other than the governor); accord, Harris v. Bush, 106 F.Supp.2d 1272, 1276–77 

(N.D.Fla.2000) (Collier, J.) (“Article IV, § 1 of the Florida Constitution vests 

Governor Bush with executive power to enforce the laws. However, 

this general authority, standing alone, is insufficient to make him the proper party 

whenever a plaintiff seeks to challenge the constitutionality of a law.”).

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Based upon the lack of specific authority or connection to the alleged 

unconstitutional action, the fiction of Ex Parte Young as a basis for the claims against 

the Administrator Defendants in their official capacities, simply does not hold water. 

See, Osterback v. Scott, 782 F. App'x 856, 858–59 (11th Cir. 2019) (holding that suit 

against the Governor of Florida in his official capacity was barred by sovereign 

immunity and not subject to Ex Parte Young exception because, while the Governor 

had constitutional and statutory authority to enforce the law and oversee the 

executive branch, the responsibility for the enforcement of a challenged provision 

rested with the Division of Administrative Hearings). The reality here is that Denton 

has sued the State of Florida, and the challenge lodged against the Administrator 

Defendants in their official capacities is barred.

D. Plaintiff’s Claims are not Ripe 

As of the filing of the Complaint and this Motion, Plaintiff has not fully 

exhausted the procedures implemented by student government to challenge his 

removal as student senate president. While neither FSU nor the Administrator 

Defendants are legally obligated to get between Denton and his senate colleagues 

with respect to the war they have waged on difficult social issues, the fact is that, 

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consistent with Section 1004.26(5) and the appeal process that allows students to 

appeal the ruling of the student supreme court, these Defendants have not had the 

issue properly before them for consideration.

The ripeness inquiry “goes to whether the district court ha[s] subject matter 

jurisdiction to hear the case.” Greenbriar, Ltd. v. City of Alabaster, 881 F. 2d 1570, 

1573 n. 7 (11th Cir. 1989). “Strict application of the ripeness doctrine prevents 

federal courts from rendering impermissible advisory opinions and wasting 

resources through review of potential or abstract disputes.” Adver. Co. v. City of 

Miami, 402 F. 3d 1335, 1339 (11th Cir. 2005). Further, one of the bedrocks 

principles of the ripeness doctrine “is to protect the [administrative] agencies from 

judicial interference until an administrative decision has been formalized and its 

effects felt in a concrete way by the challenging parties. Id. (citations and quotation 

omitted).

The urgency with which Plaintiff asks this Court to act is only an issue because 

of the date Plaintiff alleges his senate presidency would have concluded. But that is 

not enough to invoke this Court’s jurisdiction nor does it make Denton’s claims ripe. 

The advisory opinion Plaintiff seeks through this lawsuit should be denied and the 

action dismissed for lack of jurisdiction.

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E. Plaintiff’s Challenge to His Inability to Have His Appeal Heard by the 

Student Supreme Court is Moot

“A case is moot when the issues presented are no longer ‘live’ or the parties 

lack a legally cognizable interest in the outcome.” Powell v. McCormack, 395 U.S. 

486, 496 (1969). The requirement that a case have an actual, ongoing controversy 

extends throughout the pendency of the action. See, Preiser v. Newkirk, 422 U.S. 

395, 401 (1975) (quoting Steffel v. Thompson, 415 U.S. 452, 459 n. 10 (1974)). "A

case might become moot if subsequent events made it absolutely clear that the

allegedly wrongful behavior could not reasonably be expected to recur." Friends of

the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189 (2000) 

(quoting United States v. Concentrated Phosphate Export Assn., 393 U.S. 199, 203

(1968)).

Insofar as Plaintiff’s claims are based on the student senate’s decision not to

confirm supreme court justices and Vice President Hecht’s recognition that she

lacked the authority to hear any appeal unless or until the supreme court rendered its

decision pursuant to established process, those claims are moot. By tomorrow the

student supreme court should be fully seated with a sufficient number of justices to

hear Denton’s appeal, and, failing that, the chief justice may appoint a fifth justice

to sit by designation.

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F. Plaintiff’s Individual Capacity Claims Against the Administrator 

Defendants are Barred by Qualified Immunity

1. Qualified Immunity is Denied Only in Exceptional Circumstances

Critical public policy considerations, such as the “social costs [associated with 

claims against public officials] including the expenses of litigation, the diversion of 

official energy from pressing public issues, and the deterrence of able citizens from 

acceptance of public office” are bedrock principles of the qualified immunity 

defense. Harlow v. Fitzgerald, 457 U.S. 800, 814 (1982). These and other 

considerations have led the Eleventh Circuit to caution that “courts should think long 

and hard before stripping defendants of immunity.” Lassiter v. Ala. A & M Univ., 28

F.3d 1146, 1149 (11th Cir. 1994) (en banc). “[O]nly in exceptional cases will 

government actors have no shield against claims made against them in their 

individual capacities.” Id. at 1149. The issue of whether qualified immunity applies 

is a question of law. Skrtich v. Thornton, 280 F.3d 1295, 1306 (11th Cir. 2002).

A public servant is entitled to immunity unless her act is “so obviously wrong, 

in the light of pre-existing law, that only a plainly incompetent officer or one who 

was knowingly violating the law would have done such a thing.” Rehberg v. Paulk, 

611 F.3d 828, 838 (11th Cir. 2010) (quoting Lassiter). Moreover, “[b]ecause 

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qualified immunity is a defense not only from liability, but also from suit,” both the 

Supreme Court and Eleventh Circuit have repeatedly emphasized the “importance 

of resolving immunity questions at the earliest possible stage in litigation.” Pearson 

v. Callahan, 555 U.S. 223, 232 (2009) (quoting Hunter v. Bryant, 502 U.S. 224, 227

(1991) (per curiam)); Mitchell v. Forsyth, 472 U.S. 511, 526 (1985) (stating that 

qualified immunity is “immunity from suit rather than a mere defense to liability”) 

(emphasis supplied); Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002) (citation 

and internal quotation omitted). 

Finally, and importantly, the protection of qualified immunity applies 

regardless of whether the government official's error is “a mistake of law, a mistake 

of fact, or a mistake based on mixed questions of law and fact.” Pearson, 555 U.S. 

at 231 (citations omitted). Indeed, qualified immunity “operates as a shield against 

civil damages due to mistaken judgments.” Harris v. Coweta Cty., 21 F.3d 388, 390 

(11th Cir.1994) (citations omitted). Stated differently, qualified immunity “gives 

government officials breathing room to make reasonable but mistaken judgments, 

and protects all but the plainly incompetent or those who knowingly violate the law.” 

Carroll v. Carman, 574 U.S. 13, 17 (2014) (per curiam).

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2. Two-Step Analysis Applicable to Qualified Immunity

To receive qualified immunity, a public official must first establish he “was 

acting within the scope of his discretionary authority when the allegedly wrongful 

acts occurred.” Lee, 284 F.3d at 1194. If the defendant makes this showing, the 

burden shifts to the plaintiff to establish that qualified immunity is inappropriate. 

Lumley v. City of Dade City, Fla., 327 F.3d 1186, 1194 (11th Cir. 2002). To do so, 

a plaintiff must satisfy both prongs of the two-part test set forth by the Supreme 

Court: (1) that plaintiff has alleged a violation of a constitutional right; and (2) 

whether the right was “clearly established” at the time of the defendant's misconduct. 

Keating v. City of Miami, 598 F.3d 753, 762 (11th Cir. 2010) (citing Pearson, 555 

U.S. at 236 and Hope v. Pelzer, 536 U.S. 730, 736 (2002) (citation omitted)). The 

steps in the test may be considered in whatever order is deemed appropriate for the 

case. Pearson, 555 U.S. at 241-242.

3. The Administrator Defendants Were Acting in their Discretionary 

Authority

“[A] government official proves that he acted within his discretionary

authority by showing objective circumstances which would compel the conclusion

that his actions were undertaken pursuant to the performance of his duties and within

the scope of his authority.” Courson v. McMillian, 939 F.2d 1479, 1487 (11th Cir.

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1991) (internal quotation marks omitted); see also, Holloman v. Harland, 370 F.3d 

1252, 1265 (11th Cir. 2004) (stating an official acts within her discretionary 

authority where she “perform[s] a legitimate job-related function...through means 

that [are] within his power to utilize”). The actions and inactions alleged by Plaintiff 

all implicate the discretionary authority of the Administrator Defendants.

President Thrasher

The Complaint fails to allege a direct, positive or specific act in which 

President Thrasher supposedly engaged that violated Plaintiff’s constitutional rights. 

Plaintiff is careful to steer clear of such allegations in his verified Complaint, 

alleging, instead, that “upon information and belief” President Thrasher knows about 

his predicament, but has not injected himself into the dispute, or direct others to do 

so. (Doc. 1 at ¶¶ 18-19; 23-24; 127; 181-182). Assuming, arguendo, President 

Thrasher – as Plaintiff alleges – knows about the dispute and made a conscious 

decision not to inject FSU or its administration into a student government conflict, 

or take sides with Plaintiff over the decided will of the FSU student senate, then that 

is clearly an act within the President’s discretionary authority.

Vice President Hecht

Plaintiff acknowledges Vice President Hecht took action by issuing a 

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memorandum to the student senate reminding them of the senate’s obligation to 

appoint the student supreme court. Plaintiff’s theory of liability is that more was 

required – an action to overturn the near unanimous decision of the duly elected 

representatives of the student body. Whether and, if so, to what extent Vice President 

Hecht was obligated to undertake this course of action is a decision within her 

discretionary authority.

Interim Director Bowden

Director Bowden was not responsible for student government affairs when the 

student senate deposed Plaintiff from his position. Again, the Complaint carefully 

tip toes around whether Director Bowden knew about the decision to remove 

Plaintiff, again alleging “upon information and belief” [(Complaint at ¶ 130)], but 

as the Affidavit makes clear Director Bowden had no authority – discretionary or 

otherwise – to exert at or around the time of the vote. With respect to Plaintiff’s 

allegations concerning Director Bowden’s failure to inject himself or FSU into a 

student senate fight [(Complaint at ¶ 211)], that decision is, once again, an act within 

his discretionary authority.

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4. The Administrators Did Not Violate Clearly Established Law

With respect to the second element Plaintiff must satisfy, “[q]ualified 

immunity attaches when an official's conduct ‘does not violate clearly established 

statutory or constitutional rights of which a reasonable person would have known.’” 

White v. Pauly, –––– U.S. –––– , 137 S. Ct. 548, 551 (2017) (quoting Mullenix v.

Luna, 577 U.S. ––––, 136 S.Ct. 305, 308 (2015)). While Supreme Court precedent 

“‘do[es] not require a case directly on point’” for a right to be clearly established, 

“‘existing precedent must have placed the statutory or constitutional question 

beyond debate.’” Id. at 551; Mullenix, 136 S.Ct. at 308 (quotation omitted). As the 

Eleventh Circuit instructs, “[t]his second inquiry ‘must be undertaken in light of the 

specific context of the case, not as a broad general proposition.’” Lee, 284 F.3d at 

1194 (quoting Saucier v. Katz, 533 U.S. 194, 201 (2001), receded from on other 

grounds, (Pearson, 555 U.S. at 236). Further, in the Eleventh Circuit qualified 

immunity attached when a plaintiff alleges a government actor failed to take a 

particular action. Jackson v. Humphrey, 776 F. 3d 1232, 1246 (11th Cir. 

2015)(Martin, J. dissenting) (recognizing “that qualified immunity can attach to 

inaction just as it does to actions.”) (citation omitted).

The undersigned are unaware of any decision that places the challenged 

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actions “beyond debate” for purposes of the clearly established law prong of the 

qualified immunity analysis. Plaintiff cannot cite to any case holding that a 

university president, vice president or student services director is compelled to 

intervene in a student government dispute to reinstate an aggrieved student to an 

elected office based upon an alleged First Amendment violation, particularly where 

there are internal self-help measures available to the student-plaintiff to seek to 

overturn the action. In fact, the Eleventh Circuit has found qualified immunity 

appropriate where university administrators do not intervene in student on student 

disputes. See, Alexander v. Univ. of North Fla., 39 F. 3d 290, 292 (11th Cir. 1994)

(reversing denial of qualified immunity based upon university administrators’ failure 

to act to protect student from fellow student assailant).

In a more general sense, the reasonable university administrator at a public 

college or university would be guided by principles such as:

 Students do not enjoy the constitutional right to participate in extracurricular activities5

;

 

5

 See, e.g., Bruno, 198 So. 3d at 1044-45; Flint v. Dennison, 488 F.3d 816, 835–36

(9th Cir.2007) (finding constitutionally valid application of regulation barring 

student from assuming office in student government for campaign overspending);

O’Brien v. Welty, No. 1:12-cv-2017, 2013 WL 2300920, at *17 (E.D. Cal. May 24, 

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 Student government is a civics laboratory in which student on student 

disputes often arise6;

 Judicial reluctance to interfere with the administration of student affairs 

within post-secondary institutions7;

 Through Section 1004.26, the Florida Legislature charges student 

governments with adopting internal procedures including including the 

qualifications and removal of student government officers; 

 Florida law recognizes that unless a university adopts the position taken 

by student government, Section 1004.26(5) protects the university from 

the actions of the student government.

The qualified immunity defense is particularly appropriate for cases like this. 

 

2013), aff'd in part, rev'd in part on other grounds, 2013 WL 2300920 (9th Cir. 

2016) (“there is no constitutionally protected property interest in extracurricular 

activities generally and in student government office in particular”).

6 Ala. Student Party, 867 F. 2d at 1347.

7 Ala. Student Party, 867 F. 2d at 1347 (“The University judgment on matters such 

as this should be given great deference by federal courts. This Court should honor 

the traditional ‘reluctance to trench on the prerogatives of state and local educational 

institutions.’”) (quoting Regents of University of Michigan v. Ewing, 474 U.S. 214,

226 (1985)).

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The law generally recognizes the deference that should be given university 

administrators for student affairs matters, but even if it did not, qualified immunity 

applies to immunize the actions (or inactions) of the Administrator Defendants. 

Dated this 22nd day of September, 2020. 

/s/ Robert J. Sniffen

ROBERT J. SNIFFEN

Florida Bar Number: 0000795

rsniffen@sniffenlaw.com

/s/ Jeffrey D. Slanker

JEFFREY D. SLANKER

Florida Bar Number: 100391

jslanker@sniffenlaw.com

ELMER C. IGNACIO

Florida Bar Number: 537683

eignacio@sniffenlaw.com

SNIFFEN & SPELLMAN, P.A.

123 North Monroe Street

Tallahassee, Florida 32301

Telephone: (850) 205-1996

Facsimile: (850) 205-3004

Counsel for President John E. Thrasher, in 

His Official and Individual Capacities; Vice 

President Amy Hecht, in Her Official and 

Individual Capacities; and Interim Director 

Brandon Bowden, in His Official and 

Individual Capacities

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WORD COUNT CERTIFICATION

The undersigned certifies that this document complies with word limits set 

forth in N.D. Fla. Local Rule 7.1(F), as it contains 8,396, which includes the 

headings, footnotes, and quotations, but does not include the case style, signature 

block or Certificates of Word Count and Service.

/s/ Robert J. Sniffen

ROBERT J. SNIFFEN

CERTIFICATE OF SERVICE

The undersigned certifies that on this 22nd day of September, 2020, a true and 

correct copy of the foregoing was electronically filed in the United States District 

Court, Northern District of Florida, using the CM/ECF system which will send a 

notice of electronic filing to all counsel of record.

/s/ Robert J. Sniffen

ROBERT J. SNIFFEN

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