Wilson v. City of Groveland, Florida et al

Filing 55

ORDER: Defendant City of Groveland's Motion to Dismiss Second Amended Complaint 51 is GRANTED in part and DENIED in part. Plaintiff's claims that Defendant City of Groveland is liable for the following retaliatory acts are DISMISSED with prejudice for the reasons explained above: (a) The claim that Defendant Jones directed 3 residents to falsely accuse Plaintiff of violating the law (Doc. 49, 15(i)); (b) The claim that Defendant Jones wrote a letter to Plaintiff's communit y developer falsely accusing him of being an aggressor in altercations involving threats (Doc. 49, 15(ii)); (c) The claim that Defendant Jones used his authority to recommend Plaintiff's removal from the RAC (Doc. 49, 15(iv)); and (d) The clai m that Defendant Jones falsely stated at a public meeting that Plaintiff was so violent at a public meeting that police had to restrain Plaintiff (Doc. 49, 15(vi)). Defendant City of Groveland shall respond to the remaining allegations of the second amended complaint within 14 days of this Order. Signed by Judge James S. Moody, Jr. on 12/19/2016. (LN)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
OCALA DIVISION
GLEN WILSON,
Plaintiff,
v.

Case No: 5:16-cv-48-Oc-30PRL

CITY OF GROVELAND, FLORIDA,
and REDMOND JONES, II,
Defendants.

ORDER
In 2015, Glen Wilson voiced opposition to a proposal by City Manager Redmond
Jones II at a Groveland City Council meeting. Jones allegedly retaliated. Wilson sued Jones
and the City for First Amendment retaliation, and the City moved to dismiss. Because
Wilson pleaded a plausible basis for municipal liability as to some of the alleged retaliatory
acts—but not all—the City’s motion should be granted in part, and denied in part.
FACTUAL BACKGROUND
At a 2015 City Council meeting, Wilson opposed Jones’s plan to give an economic
incentive package to a business planning to build a facility in the City, and Jones allegedly
retaliated. Specifically, Wilson alleges Jones retaliated by doing all of the following:
1) Procuring residents to file false criminal complaints against Wilson;
2) Sending a letter on City letterhead to the developer of Wilson’s community,
accusing Wilson of “being the aggressor in altercations involving threats”;
3) Instructing police department personnel to monitor Wilson and his wife, a thenCity Council member;

4) Recommending Wilson’s removal from the City’s Recreation Advisory
Committee (“RAC”);
5) Publishing false statements about Wilson being violent at City meetings on the
City’s website; and
6) Saying during a City meeting that Wilson was violent and had to be subdued by
law enforcement.
While Wilson admits Jones is responsible for these acts, he alleges the City is also
liable. Wilson argues that Jones committed each of the acts while exercising final decisionmaking authority delegated to him by the City, which the City disputes.
PROCEDURAL BACKGROUND
On January 28, 2016, Wilson filed his complaint (Doc. 1) against the City and Jones
in his official and individual capacities. This Court dismissed the complaint (Doc. 28) as a
shotgun pleading because the claims were not separated as to the defendants or by Wilson’s
various claims. The Court also dismissed with prejudice the claims against Jones in his
official capacity, which were redundant of the claims against the City.
Wilson then filed his amended complaint (Doc. 29), which both Jones and the City
moved to dismiss (Docs. 31 and 32). The Court denied Jones’s motion and granted the
City’s (Doc. 39). Notably, the amended complaint contained a second count against the
City alleging it retaliated against Wilson by removing him from the RAC after he sent an
e-mail to the City’s mayor. That claim was dismissed with prejudice. Wilson filed a second
amended complaint (Doc. 49), which Jones answered (Doc. 50), and to which the City filed
this motion to dismiss (Doc. 51).

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MOTION TO DISMISS STANDARD
Federal Rule of Civil Procedure 12(b)(6) allows a complaint to be dismissed for
failure to state a claim on which relief can be granted. When reviewing a motion to dismiss,
courts must limit their consideration to the well-pleaded allegations, documents central to
or referred to in the complaint, and matters judicially noticed. See La Grasta v. First Union
Securities, Inc., 358 F.3d 840, 845 (11th Cir. 2004) (internal citations omitted); Day v.
Taylor, 400 F.3d 1272, 1276 (11th Cir. 2005). Furthermore, they must accept all factual
allegations contained in the complaint as true, and view the facts in a light most favorable
to the plaintiff. See Erickson, 551 U.S. at 93–94.
Legal conclusions, however, “are not entitled to the assumption of truth.” Ashcroft
v. Iqbal, 556 U.S. 662, 664 (2009). In fact, “conclusory allegations, unwarranted factual
deductions or legal conclusions masquerading as facts will not prevent dismissal.” Davila
v. Delta Air Lines, Inc., 326 F.3d 1183, 1185 (11th Cir. 2003). To survive a motion to
dismiss, a complaint must instead contain sufficient factual matter, accepted as true, to
“state a claim to relief that is plausible on its face.” Iqbal, 556 U.S. at 678 (internal
quotation marks and citations omitted). This plausibility standard is met when the plaintiff
pleads enough factual content to allow the court “to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Id. (internal citations omitted).
DISCUSSION
The sole issue before this Court is whether Wilson pled a plausible basis for
municipal liability, which would allow the City to be held liable for Jones’s retaliatory acts

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alleged in the second amended complaint. 1 To further simplify the issue, Wilson’s only
argument in favor of municipal liability is that the City delegated final decision-making
authority to Jones, which Jones exercised when he committed each of the acts (with one
exception related to Jones’s recommendation to remove Wilson from the RAC).
A municipality, like the City, can be held liable for the “act or decision of a
municipal officer with final policy-making authority.” Carter v. DeKalb Cty., Ga., 521 F.
App'x 725, 729 (11th Cir. 2013) (citing Cuesta v. School Bd. of Miami–
Dade Cty., 285 F.3d 962, 966–68 (11th Cir. 2002)); see also Quinn v. Monroe Cty., 330
F.3d 1320, 1325 (11th Cir. 2003). But a municipality cannot be held liable for the
constitutional violations of its officers based on vicarious liability or respondeat superior.
Hoefling v. City of Miami, 811 F.3d 1271, 1279 (11th Cir. 2016); see also Skop v. City of
Atlanta, 485 F.3d 1130, 1145 (11th Cir. 2007) (citing Monell v. Dep't of Soc. Servs. of City
of New York, 436 U.S. 658, 694–95 (1978)). In other words, acts of an officer—even one
with final policymaking authority—will not be imputed to a municipality unless the acts
were within the scope of the officer’s final policymaking authority. So “[a] threshold
question, therefore, is whether the official is going about the local government's business.
If the official's actions do not fall within an area of the local government's business, then
the official's actions are not acts of the local government.” McMillian v. Johnson, 88 F.3d

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The Court previously ruled, “Taken as a whole, Jones’s alleged acts would be sufficient
to deter someone of ordinary firmness from exercising their First Amendment rights (even if a
single act on its own would not have done so).” (Doc. 39, p. 5). For those same reasons, the Court
again rejects the City’s argument that Wilson failed to plead an adverse effect on his speech.

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1573, 1578 (11th Cir. 1996), aff'd sub nom. McMillian v. Monroe Cty., Ala., 520 U.S. 781,
117 S. Ct. 1734, 138 L. Ed. 2d 1 (1997).
Because this threshold question must be addressed for each retaliatory act, the Court
will discuss each act separately. If the threshold inquiry is satisfied, the Court will then
consider whether Jones had delegated final policymaking authority in that area.
A. Procuring criminal complaints from residents
Wilson argues it is the City’s business to make sure laws are followed and that
crimes are reported. (Doc. 54, p. 5). Wilson also argues that the City Charter delegates to
the city manager the authority to ensure all laws are followed. 2 (Doc. 54, p. 4). So, Wilson
claims, the City is liable for Jones procuring three residents to file false criminal complaints
against Wilson.
Accepting Wilson’s premise as to what constitutes City business as true, his
conclusion is incorrect. There is no correlation between Jones procuring false criminal
complaints and the City’s business of making sure all laws are followed. And there is no
correlation between Jones being given authority to ensure laws are followed and him
getting residents to file criminal complaints, false or legitimate. Finally, Wilson’s claim
that Jones was authorized to ensure all laws are followed is too broad to conclude Jones
has final policymaking authority over the specific act of procuring criminal complaints.

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As the City notes, section 4.04(e) of the City Charter actually requires the city manager
to “See that all laws, provisions of this Charter and acts of the council subject to enforcement by
him or by officers subject to his direction and supervision, are faithfully executed.” (emphasis
added). Wilson fails to address whether the specific criminal complaints alleged against him were
subject to Jones’s enforcement or of those whom Jones supervised.

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Put plainly, procuring false criminal complaints is not the City’s business, and Jones
was not vested with final policymaking authority in this area. This claim, therefore, is
dismissed because Wilson failed to establish a plausible basis for municipal liability.
B. Sending letter to Wilson’s developer
Wilson argues it is the City’s business to address public safety and the avoidance of
“tomorrow’s tragedies.” (Doc. 54, p. 5). Wilson also argues that the City Charter vests the
city manager with final authority to administer “all affairs of the City.” (Doc. 54, p. 5). So,
Wilson claims, the City is liable for Jones’s decision to send a letter to his community
developer, falsely accusing him of being violent and a threat.
The Court concludes the City cannot be held liable for the letter. Having reviewed
the letter, the Court concludes the thrust of it is to address a security concern at City
meetings after comments on the community blog led to an argument. Jones asks the
developer to investigate and to let the City know if it becomes aware of any perceived
threats so security could be increased at City meetings. While this portion of the letter
clearly deals with City business, it is not the portion with which Wilson takes offense.
Rather, Wilson is concerned with the portion that falsely accuses Wilson of being
involved in altercations and making threats. (Doc. 54, p. 2). It is not clear, though, that the
letter actually accuses Wilson of making threats or participating in the near-physical
altercation. Instead, the letter says Wilson was the aggressor in two verbal altercations that
involved threats and near-physical altercations. For that reason, the Court is not convinced
that Wilson’s characterization of those portions of the letter is accurate.

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But even if the letter clearly accused Wilson of making threats and causing nearphysical altercations, the City would not liable. While it is the City’s business to make sure
its meetings are secure, the City has no business in making false accusations against its
residents. And there is certainly no indication that the City delegated authority to Jones to
make false accusations. As such, this claim, too, should be dismissed.
C. Order surveillance of Wilson and his wife
Wilson argues the City Charter delegates to the city manager the authority to direct
and supervise all City departments and agencies. (Doc. 54, p. 6). So, Wilson argues, the
City is liable for Jones ordering the police chief and a detective to surveil Wilson and his
wife. Wilson does not address the threshold question of whether that is the City’s business,
but the Court concludes that police surveillance falls within that broad category.
The Court again concludes that second amended complaint sufficiently alleges
municipal liability for the police department putting Wilson and his wife under
surveillance. Additional facts may later show that Jones actually lacked final policymaking
authority in this area, but that is an issue for summary judgment—not a motion to dismiss.
D. Recommending Wilson’s removal from RAC
Wilson argues the City Charter vests the city manager with exclusive authority to
remove employees and appointed officers. (Doc. 54, p. 6). Therefore, Wilson claims, the
City is liable for Jones recommending his removal from the RAC in retaliation for his
comments, a recommendation the City later approved. (Doc. 54, pp. 6–7). Alternatively,
Wilson argues that if Jones was not the final policymaker regarding removing RAC

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members, then the City ratified Jones’s recommendation when it removed Wilson from the
RAC in violation of his First Amendment rights. (Doc. 54, p. 7).
The Court cannot agree. Although not addressed by Wilson, the Court assumes
appointing and removing RAC members is within the City’s business. As the City notes,
though, Jones is not the final policymaker when it comes to this function: the City Council
is vested with sole discretion when it comes to appointing and removing RAC members.
See Groveland City Code § 2-303.
The Court rejects Wilson’s argument that the City Charter controls over the
ordinance because the Court finds no direct conflict between the two. The City Charter
prohibits the City Council from dictating “the appointment or removal of any city officer
or employee whom the manager or any of his subordinates are empowered to appoint….”
Groveland City Charter, Art. III, § 3.05(a). Neither the city manager nor his subordinates,
though, are empowered to appoint and remove RAC members. That authority rests solely
with the City Council. Groveland City Code § 2-303 (“members of the [RAC] shall be
appointed to and removed from the committee in the manner as deemed appropriate by the
city council, in its sole discretion. The members of the committee shall serve at the pleasure
of the city council.”). So there is no conflict between the ordinance and City Charter.
The Court also rejects Wilson’s argument that the City ratified Jones’s
unconstitutional decision to remove Wilson from the RAC. In previous filings, Wilson
alleged and argued he was removed from the RAC in retaliation for an e-mail he sent the
mayor nearly 6 months after Jones recommended his removal from the RAC. (Doc. 29, ¶¶
22–23; Doc. 33, § III). The Court dismissed Wilson’s claim against the City with prejudice.

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(Doc. 39). Wilson cannot now repackage his dismissed claim to argue that the City
Council’s decision to remove him had nothing to do with his e-mail. And, even if he could,
Wilson has not pleaded that the City’s decision to remove him was for the same
unconstitutional basis as Jones’s recommendation six months prior. This claim, therefore,
must be dismissed.
E. Publishing false statements about Wilson on the City’s website
Wilson argues the City Charter delegates to the city manager the authority to direct
and supervise all City departments and agencies. (Doc. 54, p. 8). Therefore, Wilson argues,
the City is liable for Jones’s decision to have the city clerk publish false statements about
him on the City’s website. Wilson again fails to address the threshold question of whether
that is the City’s business, but the Court again concludes that maintaining the City’s
website is clearly a function of the City.
The Court concludes Wilson has sufficiently pled a basis for municipal liability for
this claim. As stated above, additional facts may later show that Jones actually lacked final
policymaking authority in this area, but that is an issue for summary judgment—not a
motion to dismiss.
F. Making false statements about Wilson at City Council meeting
Lastly, Wilson argues the City Charter grants authority to Jones to take part in City
Council meetings. (Doc. 54, p. 8). Wilson also argues that Jones was acting as final
policymaker pursuant to that authority when he made false statements about Wilson during
a City Council meeting. (Doc. 54, pp. 8–9). So, Wilson argues, the City is liable for Jones

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making the false statements. Wilson again fails to address whether Jones’s statements
should be considered the City’s business, but the Court will assume it is.
Even so, the Court disagrees that Wilson pled a plausible basis for municipal
liability. The fact that the City Charter allows the city manager to speak at City Council
meetings is not the same as delegating final policymaking authority to speak for the City
at City Council meetings. Without Jones being delegated final policymaking authority, the
City cannot be liable for his allegedly false statements. What Wilson seeks to do is hold
the City vicariously liable for Jones’s actions, which is impermissible. Hoefling, 811 F.3d
at 1279. Because Wilson has not plead a plausible basis for municipal liability for this
claim, it also must be dismissed.
Accordingly, it is ORDERED AND ADJUDGED that:
1.

Defendant City of Groveland’s Motion to Dismiss Second Amended
Complaint (Doc. 51) is GRANTED in part and DENIED in part.

2.

Plaintiff’s claims that Defendant City of Groveland is liable for the following
retaliatory acts are DISMISSED with prejudice for the reasons explained
above:
a. The claim that Defendant Jones directed 3 residents to falsely accuse
Plaintiff of violating the law (Doc. 49, ¶ 15(i));
b. The claim that Defendant Jones wrote a letter to Plaintiff’s community
developer falsely accusing him of being an aggressor in altercations
involving threats (Doc. 49, ¶ 15(ii));

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c. The claim that Defendant Jones used his authority to recommend
Plaintiff’s removal from the RAC (Doc. 49, ¶ 15(iv)); and
d. The claim that Defendant Jones falsely stated at a public meeting that
Plaintiff was so violent at a public meeting that police had to restrain
Plaintiff (Doc. 49, ¶ 15(vi)).
3.

Defendant City of Groveland shall respond to the remaining allegations of
the second amended complaint within 14 days of this Order.

DONE and ORDERED in Tampa, Florida, this 19th day of December, 2016.

Copies furnished to:
Counsel/Parties of Record

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