Tracy v. Florida Atlantic University Board of Trustees et al

Filing 105

ORDER denying 97 Motion to Dismiss for Failure to State a Claim. Signed by Judge Robin L. Rosenberg on 2/21/2017. (bkd)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 9:16-CV-80655-ROSENBERG/HOPKINS
JAMES TRACY,
Plaintiff,
v.
FLORIDA ATLANTIC UNIVERSITY
BOARD OF TRUSTEES a/k/a
FLORIDA ATLANTIC UNIVERSITY,
et al.,
Defendants.
__________________________________/

ORDER DENYING DEFENDANTS’ MOTION TO DISMISS
This cause is before the Court on Defendants’ Motion to Dismiss Plaintiff’s Second
Amended Complaint [DE 97]. The Motion has been fully briefed. For the reasons set forth
below, the Motion is denied.
I.

BACKGROUND

This is a case about the First Amendment right to free speech. The setting for this
case is a college campus, which is certainly a familiar setting for First Amendment
jurisprudence. The story of this case is a story of two competing narratives, both of which are
present in the Second Amended Complaint before this Court.

The first such narrative,

brought by Plaintiff, is that he, a professor, was terminated for exercising his right to free
speech in a personal, off-campus blog. The second narrative belongs to Defendants and,
according to them, Plaintiff was terminated for consistently and willfully refusing to comply
with internal administrative requirements regarding the reporting of outside activities. The

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crux of this case is that Plaintiff contends that the Defendants’ justification for termination
was a pretext—an attempt to manufacture a reason to terminate Plaintiff due to Plaintiff’s
controversial exercise of free speech in the area of mass shootings and related conspiracies on
his personal blog.
In a prior complaint, the precise contours of Plaintiff’s allegations of pretext were not
clear. After the Court held a hearing and heard argument on a motion to dismiss, the Court
dismissed Plaintiff’s former complaint on multiple grounds. The primary focus of the Court’s
decision was that Plaintiff needed to amend his complaint to provide greater clarity as to: (i)
what specific constitutional violation he was alleged to have suffered, (ii) whom he was suing,
and (iii) the precise legal basis for each of Plaintiff’s claims for relief. Plaintiff responded to
the Court’s order by filing the Second Amended Complaint and, soon after, Defendants filed
the Motion to Dismiss before this Court.
Plaintiff’s Second Amended Complaint contains the following counts:


Count I – Retaliation in Violation of Right to Free Speech, against Defendant
FAU and Defendants Kelly, Alperin, and Coltman.1



Count II – Conspiracy to Interfere with Plaintiff’s Civil Rights, against
Defendants Alperin, Coltman, Kelly, Zoeller, Moats,2 UFF, FEA, and FAU.



Count III – Facial Challenge to FAU’s Conflict of Interest Policy, against
Defendant FAU.



Count IV – As-Applied Challenge to Plaintiff’s Right to Free Speech, against
Defendant FAU.



Count V – Declaratory Judgment and Injunction, against Defendant FAU.

1

Defendants Kelly, Alperin, and Coltman are officials at Florida Atlantic University.
Defendants Zoeller and Moats are representatives of Plaintiff’s former union. Defendants UFF (the United
Faculty of Florida) and FEA (the Florida Education Association) are the unions Defendants Zoeller and Moats
represent.

2

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
II.

Count VI – State Law Breach of Contract, against Defendant FAU.
LEGAL STANDARD APPLICABLE TO A MOTION TO DISMISS

To adequately plead a claim for relief, Federal Rule of Civil Procedure 8(a)(2)
requires “a short and plain statement of the claim showing that the pleader is entitled to
relief.” Under Rule 12(b)(6), a motion to dismiss should be granted only if the plaintiff is
unable to articulate “enough facts to state a claim to relief that is plausible on its face.” Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the
pleaded factual content allows the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009) (citing
Twombly, 550 U.S. at 556). When determining whether a claim has facial plausibility, “a
court must view a complaint in the light most favorable to the plaintiff and accept all of the
plaintiff’s well-pleaded facts as true.” Am. United Life Ins. Co. v. Martinez, 480 F.3d 1043,
1066 (11th Cir. 2007).
However, the court need not take allegations as true if they are merely “threadbare
recitals of a cause of action’s elements, supported by mere conclusory statements.” Iqbal, 556
U.S. at 663. “Mere labels and conclusions or a formulaic recitation of the elements of a cause
of action will not do, and a plaintiff cannot rely on naked assertions devoid of further factual
enhancement.” Franklin v. Curry, 738 F.3d 1246, 1251 (11th Cir. 2013). “[I]f allegations are
indeed more conclusory than factual, then the court does not have to assume their truth.”
Chaparro v. Carnival Corp., 693 F.3d 1333, 1337 (11th Cir. 2012).

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III.

ANALYSIS

Defendants argue that Plaintiff’s Second Amended Complaint should be dismissed for
the following reasons: (1) the Second Amended Complaint fails to allege sufficient facts
regarding Plaintiff’s claim that Defendant Kelly (an FAU official) retaliated against Plaintiff
due to Plaintiff’s exercise of his constitutional rights, (2) the Second Amended Complaint
fails to allege sufficient facts regarding Plaintiff’s claims that there was a conspiracy to
deprive him of his constitutional rights, (3) Plaintiff has not pled that he was denied an
underlying constitutional right, (4) Plaintiff’s allegations of conspiracy are insufficient under
the intracorporate conspiracy doctrine, (5) Count III is duplicative of Count IV, and (6) Count
IV is “not ripe” because Plaintiff failed to exhaust his administrative remedies.

Each

argument is addressed in turn.
1. The Second Amended Complaint’s Allegations Against Defendant Kelly
(Count I)
Defendants argue that Plaintiff has failed to allege sufficient facts regarding Plaintiff’s
claim that Defendant Kelly retaliated against Plaintiff in response to Plaintiff’s exercise of his
First Amendment right to free speech (Plaintiff’s blog postings on mass shootings and related
conspiracies). In the Court’s prior order dismissing Plaintiff’s complaint, the Court stated:
“Plaintiff must clearly allege the basis for his retaliation claim.” DE 92 at 14. The basis for
the Court’s conclusion was that it was unclear whether Plaintiff’s retaliation claim was
premised on Plaintiff’s blog postings or on some other basis. Plaintiff responded to the
Court’s prior order by significantly amending and clarifying his retaliation claim, yet
Defendants still challenge the sufficiency of Plaintiff’s claim under the Federal Rules of Civil

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Procedure. The Court sets forth below the allegations Plaintiff has made against Defendant
Kelly:
Defendant Kelly serves “at the pleasure of” the Defendant University’s Board of
Trustees and is held “responsible for the University’s operation and management,
performance, its fiscal accountability, and its compliance with federal and state
laws, rules and regulations.” Sec. Am. Compl. ¶ 12.
Paragraph 13 of the Second Amended Complaint sets forth Defendant Kelly’s
express responsibilities and duties at the Defendant University, including:
“To be responsible for the organization, operation, and administration of the
University . . . .”;
“To execute all documents on behalf of the University and the BOT consistent
with law . . . .”;
“To serve as the principal liaison officer and official contact between the BOT
and the faculty, staff and students of the university.”;
“To establish and implement policies and procedures to recruit, appoint,
transfer, promote, compensate, evaluate, reward, demote, discipline, and remove
personnel . . . .”; and
“To ensure [FAU’s] compliance with federal and state laws, rules, regulations,
and other requirements which are applicable to the University.”
See Sec. Am. Compl. ¶ 13. (emphasis added).
Defendant Kelly is “President and Chief Executive Officer of Florida Atlantic
University, designated by the Defendant University’s Board of Trustees.
Defendant Kelly supervised, facilitated, recommended and/or approved discipline
and termination of Professor Tracy in retaliation . . . for engaging in his
constitutionally protected speech and expression on his personal blog.” Sec. Am.
Compl. ¶ 14.
“In November and December 2015, Defendants Alperin, Coltman, and other
senior FAU officials and representatives, including FAU General Counsel Larry
Glick . . . planned to discipline Professor Tracy in retaliation for his personal
blogging . . . under the supervision and with the approval of Defendant Kelly . . .
.” Sec. Am. Compl. ¶ 91.
Plaintiff’s “constitutionally protected speech, including his uncompensated
opinions and viewpoints expressed on his personal blog, played a substantial part
and was a motivating factor” in the decision of Defendant Kelly to terminate
Plaintiff. Sec. Am. Compl. ¶ 120.

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Plaintiff’s “constitutionally protected speech played a substantial part and was a
motivating factor” in the decision of Defendant Kelly to terminate Plaintiff. Sec.
Am. Compl. ¶ 126.
Defendant Kelly “acted unconstitutionally and unlawfully in disciplining and
terminating Professor Tracy in order to restrict his, and other similarly situated
faculty member’s expression and freedom of speech.” Sec. Am. Compl. ¶ 127.
Defendant Kelly “had no legitimate government interest in disciplining or
terminating Professor Tracy for his constitutionally protected personal blogging
and online speech and expression.” Sec. Am. Compl. ¶ 128.
The retaliatory actions of Defendant Kelly “in response to Professor Tracy’s
constitutionally protected speech, have had a chilling effect that acts as a deterrent
to free speech.” Sec. Am. Compl. ¶ 130.
Defendant Kelly “acted intentionally, knowingly, willfully, wantonly, and in
reckless disregard of Professor Tracy’s federally-protected constitutional rights
and violated clearly established constitutional rights of which all reasonable
college administrators and staff should have known . . . .” Sec. Am. Compl. ¶ 131.
Defendant Kelly “and other officials and representatives at the Defendant
University who aided and abetted the unlawful discipline and termination of
Professor Tracy acted intentionally, knowingly, willfully, wantonly, and in
reckless disregard of Professor Tracy’s federally-protected constitutional rights,
and without regard to the significant emotional and reputational damage such
actions would cause.” Sec. Am. Compl. ¶ 132.

The Court concludes that the Plaintiff has not pled mere “labels and conclusions or a
formulaic recitation of the elements of a cause of action.”

Viewing all inferences in

Plaintiff’s favor, as the Court must at this state of the proceedings, the inference from the
allegations in the Second Amended Complaint is that Defendant Kelly was personally (and
not vicariously) involved in a retaliatory violation of Plaintiff’s First Amendment rights. As a
result, Defendant Kelly is sufficiently on notice of the claim against him such that he is able
to answer that claim. For this reason, Defendants’ Motion to Dismiss is denied as to Count I.

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2. The Second Amended Complaint’s Allegations Against Defendants Zoeller,
Moats, Alperin, Coltman, and Kelly (Count II)
Just as with Count I, Defendants argue that Plaintiff has failed to allege sufficient facts
regarding the Union Defendants (Zoeller and Moats) and the FAU Defendants (Alperin,
Coltman, and Kelly) in connection with Plaintiff’s conspiracy count, Count II. In the Court’s
prior order dismissing Plaintiff’s complaint, the Court required Plaintiff to amend his
complaint to “plead his conspiracy counts with greater clarity as to who, what, where, when,
and why.” DE 92 at 18. The Court again notes that it must view all allegations in the Second
Amended Complaint in the light most favorable to Plaintiff, and it is in this light the Court
sets forth below Plaintiff’s relevant allegations:
“In January 2013, Defendants Coltman, Alperin, and other senior FAU
officials and representatives, including FAU General Counsel Larry Glick,
“began planning how to use the public controversy surrounding Professor
Tracy’s blog to not only discipline Professor Tracy for his blogging, but also to
undermine FAU faculty union membership and representation.” Sec. Am.
Compl. ¶ 50 See also Exhibit “AK”.
Defendant Coltman, Defendant Alperin and other senior officials and
representatives of the Defendant University, including former FAU President
Mary Jane Saunders and FAU General Counsel Glick began a coordinated
effort to monitor Plaintiff’s blog, and “find winning metaphors” to overcome
the First Amendment in “ethically” disciplining Plaintiff for his personal
blogging. Sec. Am. Compl. ¶ 49, 53 See Exhibit “AK”.
Defendants Coltman, Alperin, FAU General Counsel Glick and other senior
FAU officials and representatives, were directed not to communicate by email, which could be discovered through public records requests. They also
agreed to monitor and evaluate the personal blogging of Professor Tracy
(“JT”), and to “centrally handle” the controversy surrounding the blog. Sec.
Am. Compl. ¶ 53.

“In November and December 2015, Defendants Alperin, Coltman, and other
senior FAU officials and representatives, including FAU General Counsel
Larry Glick, once again planned to discipline Professor Tracy in retaliation for
his personal blogging, this time under the supervision and with the approval of
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Defendant Kelly. Upon information and belief, in furtherance of their unlawful
objectives, FAU’s General Counsel Glick met with Defendant Zoeller and
reached an understanding and agreement that Defendants UFF and FEA would
not contest the discipline and termination of Professor Tracy.” Sec. Am.
Compl. ¶ 91.
“In furtherance of the conspiracy, Defendants Alperin, Coltman and FAU
General Counsel Glick internally labeled Professor Tracy the “poster child” to
“quit UFF membership”, and planned to use the controversy surrounding his
personal blogging to undermine Professor Tracy’s representation by
Defendants UFF and FEA.” Sec. Am. Compl. ¶ 145. See also Exhibit “AK”.
“In furtherance of the conspiracy to interfere with Professor Tracy’s civil
rights, and in retaliation for Professor Tracy’s personal blogging, the
Defendant University, through Defendant Alperin canceled Professor Tracy’s
course, “Media, War and Crisis” and reassigned Professor Tracy to an
undergraduate course he had not previously taught, at times of the day that
conflicted with his child care schedule.” Sec. Am. Compl. ¶ 146
“After initial efforts to discipline Professor Tracy for his personal blogging
failed in 2013, Defendants Alperin and Coltman once again, in furtherance of
the conspiracy to interfere with Professor Tracy’s civil rights, attempted to
unlawfully discipline Professor Tracy for his personal blogging in November
and December of 2015.” Sec. Am. Compl. ¶ 147.
“Defendant Kelly personally supervised and approved FAU officials and
representatives efforts in 2015 to discipline and dismiss Professor Tracy in
retaliation for his personal blogging, with acknowledgement and approval of
the Chairman of the Defendant University’s Board of Trustees.” Sec. Am.
Compl. ¶ 148.
“In furtherance of the conspiracy to interfere with Professor Tracy’s civil
rights, in November and December of 2015, including December 17, 2015,
Defendants Zoeller, individually and on behalf of the Defendants UFF and
FEA, met with FAU General Counsel Larry Glick, acting on behalf of the
Defendant University and Defendants Kelly, Alperin and Coltman. During
these meetings, which occurred in person at FAU’s campus, an understanding
and agreement was reached to sabotage Professor Tracy’s defense against
FAU’s unlawful discipline, and to secure Professor Tracy’s termination or
resignation in lieu of termination.” Sec. Am. Compl. ¶ 149.
“Although Defendant Moats and Defendants UFF and FEA previously advised
and instructed Professor Tracy not to submit personal blogging to the
Defendant University for approval or restriction when faced with identical
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unlawful directives and threats of discipline for his personal blogging, in 2015,
in furtherance of the conspiracy, Defendants Moats and Defendants UFF and
FEA about-faced Professor Tracy and aided and abetted Professor Tracy’s
unlawful discipline and termination for his personal blogging. Defendant
Moats and Defendants UFF and FEA agreed not to file a grievance or respond
to the Defendant University’s Notices of Discipline on Professor Tracy’s
behalf, while actively deceiving Professor Tracy into believing that a timely
response and grievance would be filed by Defendants UFF and FEA.” Sec.
Am. Compl. ¶ 150.
“In furtherance of the conspiracy to interfere with Professor Tracy’s civil
rights, Defendants Kelly, Alperin, Zoeller and other officials and
representatives of the Defendant University and Defendants UFF and FEA,
disregarded and dismissed multiple faculty complaints and requests for FAU
officials to cease and desist infringing upon constitutionally protected faculty
speech and expression.” Sec. Am. Compl. ¶ 151.
“In October, November and December of 2015, and in furtherance of the
conspiracy to interfere with Professor Tracy’s civil rights, Defendants Kelly,
Alperin, Zoeller, Moats and other officials and representatives of the
Defendant University and Defendants UFF and FEA ignored Professor Tracy’s
complaints that his uncompensated, constitutionally protected personal
blogging could not be subjected to restriction by the Defendant University.”
Sec. Am. Compl. ¶ 152.
“In November 2015, in furtherance of the conspiracy to interfere with
Professor Tracy’s civil rights, Defendant Coltman demanded Professor Tracy
submit four (4) years of personal blogging to FAU officials for evaluation.”
Sec. Am. Compl. ¶ 153.
“In response to and in support of Defendant Coltman’s demands, and in
furtherance of the conspiracy to interfere with Professor Tracy’s civil rights,
Defendants Zoeller and Moats coerced Professor Tracy into submitting four (4)
years of constitutionally protected blogging to Defendant Coltman and the
Defendant University.” Sec. Am. Compl. ¶ 154.
“In furtherance of the conspiracy to interfere with Professor Tracy’s civil
rights, in 2015, Defendants Alperin, Coltman, Kelly and other senior
administrative officials and representatives of the Defendant University,
including FAU General Counsel Glick, acted unconstitutionally and unlawfully
in disciplining Professor Tracy in retaliation for his personal blogging.” Sec.
Am. Compl. ¶ 155.

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“In furtherance of the conspiracy to interfere with Professor Tracy‟s civil
rights, Defendants Zoeller, Defendant Moats and officials and/or
representatives of Defendants UFF and FEA purposefully failed to file a
grievance or contest the Defendant University’s retaliatory discipline of
Professor Tracy for his personal blogging.” Sec. Am. Compl. ¶ 156.
“In furtherance of the conspiracy to interfere with Professor Tracy’s civil
rights, in 2015, Defendants Alperin, Coltman, Kelly and the Defendant
University, acted unconstitutionally and unlawfully in issuing FAU’s Notice of
Intent to Terminate Professor Tracy in retaliation for his personal blogging.”
Sec. Am. Compl. ¶ 157.
“In furtherance of the conspiracy to interfere with Professor Tracy’s civil
rights, Defendant Zoeller and Defendant Moats, and other representatives of
Defendants UFF and FEA purposefully failed to respond or grieve FAU’s
Notice of Intent to Terminate, as promised to Professor Tracy, which could
have deferred and prevented Professor Tracy’s termination.” Sec. Am. Compl.
¶ 158.
“In furtherance of the conspiracy to interfere with Professor Tracy’s civil
rights, Defendant Moats and Defendant Zoeller misadvised and attempted to
mislead Professor Tracy into believing the unlawful and unconstitutional
discipline by FAU was “valid” and lawful.” Sec. Am. Compl. ¶ 159. See also
Exhibits “AA” & “AC”.
“In December 2015, in furtherance of the conspiracy to interfere with
Professor Tracy’s civil rights, Defendants Moats and Defendant Zoeller also
repeatedly instructed Professor Tracy not to exercise his constitutional rights,
including his freedom of speech and expression.” Sec. Am. Compl. ¶ 160.
“In furtherance of the conspiracy, the Union Defendants, including Defendants
Moats, Defendant Zoeller, and other representatives of the Defendants UFF
and FEA attempted to pressure and coerce Professor Tracy into resigning from
his tenured position.” Sec. Am. Compl. ¶ 161.
“In furtherance of the conspiracy, the Union Defendants, including Defendants
Moats, Defendant Zoeller, and other representatives of the Defendants UFF
and FEA attempted to discourage Professor Tracy from taking any legal action
against the Defendant University, falsely claiming that any challenge to his
termination would be unsuccessful.” Sec. Am. Compl. ¶ 162.
“Willful failure to file a timely response or grievance by representatives and
agents of Defendants UFF and FEA, including but not limited to Defendant
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Zoeller and Moats resulted in Professor Tracy’s discipline and termination by
the Defendant University.” Sec. Am. Compl. ¶ 163.
The Court concludes that Plaintiff’s Second Amended Complaint satisfies federal
pleading standards and does not amount to mere “labels and conclusions or a formulaic
recitation of the elements of a cause of action.” There is sufficient factual content in the
Second Amended Complaint as to who, what, where, when, and why such that Defendants
can answer the claim of conspiracy to violate Plaintiff’s constitutional rights. With respect to
these arguments, Defendants’ Motion to Dismiss is denied as to Count II.
3. Plaintiff’s Allegation that he was Denied a Constitutional Right (Count II)
Defendants raise the argument in their motion that Plaintiff has failed to allege that he
was denied a constitutional right stemming from his allegations of conspiracy because “this
Court has already determined that Plaintiff was afforded due process with respect to his
termination.” DE 97 at 13. Defendants restate their argument in their reply in arguing that,
“[A]s this Court ruled that Plaintiff was not denied his right to procedural due process, and
Plaintiff’s only allegations stated with any particularity reflects that [Defendants] alleged
conspiracy to deny him of his procedural due rights, Plaintiff cannot state a claim for
conspiracy.” DE 104 at 6. Defendants’ premise is therefore that Plaintiff has only properly
alleged a conspiracy to deprive him of procedural due process. The Court does not agree. It
is true that the Court previously determined that Plaintiff’s claim for denial of procedural due
process failed as a matter of law because Plaintiff was never denied procedural due process—
he simply did not elect to avail himself of procedural due process. DE 92 at 16. But, that
determination did not address whether Plaintiff suffered a constitutional injury that resulted
from an alleged conspiracy to inflict such an injury. In fact, the Court even noted in its prior
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order that “[T]he Court hereby rejects Defendants’ argument that Plaintiff cannot show his
exercise of speech was adversely affected by his termination” by citing to Bennett v. Hendrix,
423 F.3d 1247 (11th Cir. 2005), which held that the proper test to determine whether a
plaintiff suffers an adverse action, or a constitutional injury, is whether that action (here
termination) would likely deter a person of ordinary firmness from the exercise of his First
Amendment rights. Id. at 14. The Court finds that Plaintiff has alleged a conspiracy to
deprive him of his First Amendment right to free speech, in accordance with federal pleading
standards, for all of the reasons set forth above in section 2 and below in section 6.
Defendants’ Motion to Dismiss is denied as to Count II as to any argument pertaining to
procedural due process.
4. Plaintiff’s Allegations and the Intracorporate Conspiracy Doctrine (Count II)
Defendants argue that Plaintiff’s Second Amended Complaint fails under the
intracorporate conspiracy doctrine. That doctrine holds that a corporation (or a public entity)
cannot conspire with itself. Dickerson v. Alachua Cnty., 200 F.3d 761, 767 (11th Cir. 2000);
see also Grider v. City of Auburn, 618 F.3d 1240, 1261 (11th Cir. 2010) (applying the
doctrine to public entities). That is not Plaintiff’s allegation. Plaintiff’s allegation is that
officials at a public entity conspired with union representatives to jointly deprive Plaintiff of
his constitutional rights—the alleged conspiracy extends beyond Defendant FAU and
encompasses representatives of an independent union3.

For that reason, Defendants’

arguments under the intracorporate conspiracy doctrine are rejected, and Defendants’ Motion
to Dismiss is denied as to Count II as to this ground.

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5. The Relief Sought by Plaintiff as to Defendant FAU’s Policies (Count III and
Count IV)
Defendants argue that Count III is duplicative of Count IV. The allegations in Count
III are that a certain FAU policy (requiring disclosure of outside activities) is unconstitutional
on its face. The allegations in Count IV are that the policy was applied to Plaintiff in an
unconstitutional way.4 A plaintiff is permitted to plead causes of action in the alternative.
See Fed. R. Civ. P. 8(d)(2); see also Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795, 805
(1999). Plaintiff’s express intent is to plead Count III and Count IV in the alternative. DE
102 at 16. For this reason, Defendants’ Motion to Dismiss is denied as to Count III and Count
IV on these grounds.
6. Plaintiff’s Requirement to Exhaust Administrative Remedies (Count IV)
Defendants argue that Plaintiff cannot allege that a policy was applied to him in an
unconstitutional way because, by his own allegations, Plaintiff did not comply with that
policy. Defendants’ argument is targeted against Plaintiff’s as-applied challenge, Count IV.
Unlike a facial constitutionality challenge, which is “purely legal [and] presumptively ripe for
judicial review,” an as-applied constitutionality challenge addresses whether a law or rule is
“unconstitutional on the facts of a particular case or party” and, as a result, “it necessarily
requires the development of a factual record for the court to consider.” Harris v. Mexican
Speciality Goods, Inc., 564 F. 3d 1301 (11th Cir. 200).

Viewing all inferences in the Second

Amended Complaint in the light most favorable to Plaintiff, the Court does not conclude, at
4

Plaintiff has clarified that Count IV is intended as an as-applied challenge to FAU’s policy, not as a facial
challenge to that policy (which is encompassed in Count III). DE 102 at 16 (“[T]he allegations of Count IV,
detail exactly how the Policy was applied by the Defendant University to Plaintiff and his uncompensated
personal blogging. See also Sec. Am. Compl. ¶ 211, 213. These allegations, read in the light most favorable to
Plaintiff, draw the reasonable inference that the Policy was unconstitutional as-applied to Plaintiff, resulting in
injury that can in fact be remedied by the Court.”).

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this stage in the proceedings, that Plaintiff’s failure to exhaust administrative remedies means
that Defendants’ policies could not have been applied to him in an unconstitutional way. The
gravamen of Plaintiff’s Second Amended Complaint is that actions were taken against him, in
a conspiracy, prior to his opportunity to exercise administrative remedies and that he received
deceptive advice pertaining to his right to utilize administrative procedures. In light of the
foregoing, a factual record is required to evaluate Count IV and Defendants’ Motion to
Dismiss is denied as to that count.
IV.

CONCLUSION AND RULING

For all of the foregoing reasons, it is hereby ORDERED AND ADJUDGED that
Plaintiff’s Second Amended Complaint satisfies federal pleading standards and Defendants’
Motion to Dismiss [DE 97] is DENIED. Defendants shall answer Plaintiff’s Amended
Complaint within seven (7) days of the date of rendition of this Order.
DONE and ORDERED in Chambers, Fort Pierce, Florida, this 21st day of February,
2017.
_______________________________
ROBIN L. ROSENBERG
UNITED STATES DISTRICT JUDGE
Copies furnished to Counsel of Record

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