BETANCOURT v. FLORIDA DEPARTMENT OF CORRECTIONS (2023)

ORDER GRANTING MOTION TO DISMISS

Plaintiff Ivy Betancourt was a trainee corrections officer with the Florida Department of Corrections. After she declined to recite the Pledge of Allegiance during a mandatory training course, the Department terminated her. ECF No. 13 (Am. Cmpl.) ¶¶ 12-25. Betancourt then sued FDOC Secretary Ricky Dixon, Warden Barry Reddish, and Assistant Warden Cynthia Underhill. See id. In Count II, Betancourt alleges Reddish and Underhill unlawfully retaliated against her for engaging in protected speech. Id. ¶¶ 41-53. Reddish and Underhill move to dismiss the claim, and this order grants that motion.

First, Underhill and Reddish are entitled to qualified immunity. Public officials sued in their individual capacities have qualified immunity “when their conduct does not violate a constitutional right that was clearly established at the time of the challenged action.” Echols v. Lawton, 913 F.3d 1313, 1319 (11th Cir. 2019) (quoting Bailey v. Wheeler, 843 F.3d 473, 480 (11th Cir. 2016)). “The doctrine shields ‘all but the plainly incompetent or those who knowingly violate the law.’ ” Crocker v. Beatty, 995 F.3d 1232, 1239 (11th Cir. 2021) (quoting Gates v. Khokhar, 884 F.3d 1290, 1296 (11th Cir. 2018)), cert. denied, ––– U.S. ––––, 142 S. Ct. 845, 211 L.Ed.2d 522 (2022).

At the outset, I reject Betancourt's suggestion that I should not address qualified immunity at the motion-to-dismiss stage. ECF No. 22 at 13. Courts should dismiss “if the complaint ‘fails to allege the violation of a clearly established constitutional right.’ ” Gonzalez v. Reno, 325 F.3d 1228, 1233 (11th Cir. 2003) (quoting Chesser v. Sparks, 248 F.3d 1117, 1121 (11th Cir. 2001)). And the Supreme Court has repeatedly “stressed the importance of resolving immunity questions at the earliest possible stage in litigation.” Hunter v. Bryant, 502 U.S. 224, 227, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991). There is no need to wait.

Betancourt concedes Underhill and Reddish were acting within their discretionary authority, ECF No. 22 at 8, so that means Betancourt must show that (1) the officials violated a statutory or constitutional right and (2) the right was “clearly established” at the time. Crocker, 995 F.3d at 1239-40 (quoting Jacoby v. Baldwin Cnty., 835 F.3d 1338, 1344 (11th Cir. 2016)). Courts may decide the “clearly established” prong first, id. at 1240 (citing Pearson v. Callahan, 555 U.S. 223, 236, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009)), and because it provides the clearer answer, I will do that here.

A right is clearly established when “the contours of [the] right are sufficiently clear that every reasonable official would have understood that what he is doing violates that right.” Echols, 913 F.3d at 1323 (alteration in original) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 742, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011)). In other words, the state of law at the time of the official's conduct must be such that it provides “fair warning” to all reasonable officials that the conduct clearly violates the plaintiff's rights. Id. at 1324. Betancourt can show that her asserted right—the right to refuse to recite the Pledge without facing termination—was clearly established in one of three ways: (1) by pointing to cases with indistinguishable facts, (2) by pointing to a broad legal principle that should control novel facts, or (3) by showing conduct so egregious that it is clear, even in the absence of case law, that a constitutional right was violated. Crocker, 995 F.3d at 1240; King v. Pridmore, 961 F.3d 1135, 1146 (11th Cir. 2020). Betancourt has not satisfied her burden under any of these standards.

Betancourt points to no case with indistinguishable facts, and she does not argue that Underhill and Reddish's conduct was “so egregious” as to make any violation of rights obvious. This leaves option two, which is a difficult path: when “a plaintiff cannot show that the law at issue was clearly established under the first ․ method, that usually means qualified immunity is appropriate.” King, 961 F.3d at 1146.¹

When relying on a general rule to show that the law is clearly established, the principle must “apply with ‘obvious clarity’ ” to the specific circumstances. Crocker, 995 F.3d at 1243 (quoting Long v. Slaton, 508 F.3d 576, 584 (11th Cir. 2007)). The Supreme Court has repeatedly warned “not to define clearly established law at a high level of generality.” Crocker, 995 F.3d at 1241 (quoting al-Kidd, 563 U.S. at 742, 131 S.Ct. 2074); see also Gates, 884 F.3d at 1302-03 (collecting Supreme Court cases addressing the issue).

Betancourt offers up the general principle that a public employer may not retaliate against employees for the exercise of free speech. ECF No. 22 at 21-23. But this general rule does not apply with such “obvious clarity” that it provides officials fair notice that firing a trainee for not reciting the Pledge violates the First Amendment. Cf. Crocker, 995 F.3d at 1240-41 (accepting as clearly established the right to photograph police activity, including at an accident scene, but rejecting that the rule obviously applied in the “specific situation” of a bystander recording on the “median of a major highway at the rapidly evolving scene of a fatal crash”); Brooks v. Miller, 78 F.4th 1267, 1285 (11th Cir. 2023) (“[T]he general principle Brooks relies on does not provide clear notice to a reasonable officer in Officer Miller's position.”).

Since Betancourt has not satisfied the second prong of the qualified immunity analysis, I do not need to consider the first prong. Brooks, 78 F.4th at 1280. Underhill and Reddish are entitled to qualified immunity.

There is a separate and independent reason why Count II should be dismissed as to Underhill: Betancourt did not plausibly allege Underhill had the necessary authority over or involvement in Betancourt's termination to support individual liability. For individual liability to attach under § 1983, the actor must usually have the power to make official decisions. Quinn v. Monroe Cnty., 330 F.3d 1320, 1326 (11th Cir. 2003). The authority to recommend termination without the authority to effectuate it is generally not enough. See id. at 1328. A discharge recommendation without the authority to effectuate is actionable only if the plaintiff shows that the recommendation “directly resulted in the employee's discharge.” Stimpson v. City of Tuscaloosa, 186 F.3d 1328, 1331 (11th Cir. 1999).

Betancourt does not allege Underhill fired her. Instead, Betancourt alleges only the following regarding Underhill. First, after her refusal to recite the Pledge, Betancourt met with Underhill and two others and was told to write an incident report. Am. Cmpl. ¶¶ 22-23. Second, Underhill “made it clear” she disapproved of Betancourt's speech and made disparaging remarks, including accusing her of committing a crime. Id. ¶ 49. Third, Underhill “misused [her] power.” Id. ¶ 50.

The allegation that Underhill “misused her power” is a conclusory statement that I will disregard. See Ashcroft v. Iqbal, 556 U.S. 662, 663-64, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). The allegation that Underhill disapproved of Betancourt's speech and made disparaging remarks is unsupported by any of Betancourt's “ultimate facts,” and instead appears tied to the actions of other FDOC employees. See Am. Cmpl. ¶¶ 19-21 (attributing the disapproval, disparaging remarks, and criminal accusations to two FDOC instructors, not Underhill). Regardless, Betancourt does not allege any facts tying the remarks to her termination. The same is true of the incident report. Betancourt does not allege the incident report itself (or the meeting with Underhill) factored into her termination. Betancourt does not even allege that Underhill recommended her termination, let alone that her recommendation “directly resulted” in her dismissal. Even if Underhill's role as Assistant Warden gave her “the power to make employment decisions,” ECF No. 22 at 5-6, that does not support an inference that Underhill did, in fact, use that power to cause the termination here.

The motion to dismiss (ECF No. 16) is GRANTED. Count II of the Amended Complaint (ECF No. 13) is DISMISSED.

SO ORDERED on November 13, 2023.

FOOTNOTES

1.   To the extent Betancourt is attempting to proceed under method one, she has not succeeded. The cases she cites are easily distinguishable, and none involves requiring a law enforcement officer to recite the pledge. See Carollo v. Boria, 833 F.3d 1322 (11th Cir. 2016) (involving city manager terminated after reporting corruption); Cook v. Gwinnett Cnty. Sch. Dist., 414 F.3d 1313 (11th Cir. 2005) (involving bus driver transferred for soliciting union membership); Boyce v. Andrew, 510 F.3d 1333 (11th Cir. 2007) (involving Child Protective Services employees transferred and terminated for raising personal grievances and frustrations).

Allen Winsor, United States District Judge