verified complaint

1

IN THE UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

OCALA DIVISION

KYLE BERMINGHAM,

CASE NO.:

Plaintiff,

vs.

THE CITY OF CLERMONT, FLORIDA; and

STEVE GRAHAM, in his official and individual

capacities,

Defendants.

_________________________________________/

VERIFIED COMPLAINT

(JURY DEMAND ENDORSED HEREUPON)

INTRODUCTION

The Plaintiff, KYLE BERMINGHAM (hereinafter, “BERMINGHAM” or

“Plaintiff”), by and through the undersigned attorney, respectfully petitions this

Court for issuance of equitable and monetary relief. The instant Complaint, and

its related Petition for Preliminary Injunction, are premised upon the violation by

Defendants of the First Amendment to the United States Constitution, as

incorporated against the States by the Fourteenth Amendment to the United States

Constitution, and to violations of the Law Enforcement Officers’ Bill of Rights,

Fla. Stat. § 112.531, et seq.

2

BERMINGHAM was targeted for disciplinary action, suspended and,

ultimately, terminated in retaliation for his private speech on matters of public

concern. A later arbitration, which addressed matters falling outside the instant

Complaint, failed to reinstate BERMINGHAM for the unlawful and

unconstitutional actions of the Defendants.

As a matter of equitable relief, BERMINGHAM is requesting that the

District Court issue a Permanent Injunction to quash the final administrative action

set forth in the Correspondence/Memorandum dated June 21, 2010, issued by

Defendant CITY OF CLERMONT (hereinafter, “CITY”), by and through its agent,

the Clermont Police Department (hereinafter, “Clermont PD” or “Agency”) and its

Police Chief, Defendant STEVE GRAHAM (hereinafter, “GRAHAM”) affirming

the discipline of the Plaintiff which included Plaintiff’s dismissal from

employment with the Clermont PD, and thus the initial determination of

GRAHAM, the individual who initiated the unlawful investigation and action

against BERMINGHAM.

Separately, BERMINGHAM requests monetary relief for GRAHAM’s

unlawful actions in unlawfully initiating the action against BERMINGHAM, and

in retaliating against BERMINGHAM for the latter’s exercise of protected

conduct. In support of this Petition, BERMINGHAM would further allege as

follows:

3

1. THE PARTIES: Plaintiff, BERMINGHAM, is and was at all material

times to this action an adult resident of Polk and Lake Counties, Florida, and

employed as a Police Officer with the Clermont PD, located in Lake County,

Florida.

2. BERMINGHAM was a Career Service Employee of Clermont PD.

BERMINGHAM excelled during his law enforcement career with Clermont PD

including, but not limited to, workplace evaluations reflecting superior service, and

dating back to the period spanning October 2006, through the period just prior to

being placed under the internal investigation in the case-at-bar.

3. BERMINGHAM was a 3½-year veteran of Clermont PD, with a date

of hire of October 17, 2006. Prior to the retaliatory actions described, herein,

BERMINGHAM’s disciplinary record featured predominantly minor verbal

counselings. Otherwise, over the past three (3) years, BERMINGHAM’s

disciplinary record has been spotless.

4. Defendant, CITY OF CLERMONT, is a municipal entity, formally

incorporated pursuant to the laws of the State of Florida. CITY employs, as its

representatives both the Chief of Police (CITY’s chief law enforcement official)

and the City Manager (its chief executive officer). Presently, and for all periods

relevant to the instant Petition, those positions have been respectively occupied by

Defendant GRAHAM as its Police Chief; and, as its City Manager, Wayne

4

Saunders (hereinafter, “Saunders”). GRAHAM and Saunders continue to serve in

appointed positions at the pleasure of the CITY, and pursuant to the authority

contained within CITY’s Code of Ordinances.

5. Defendant GRAHAM has served as the appointed Chief of Police of

Defendant CITY since approximately July 2005. In his official capacity,

GRAHAM has been vested with supervisory authority as the chief law

enforcement officer within Defendant CITY, and was charged with enforcement of

CITY’s laws and policies. Further, in both his official – and his individual

capacity as a private citizen – GRAHAM was vested with the ability to initiate

administrative investigations against law enforcement officers. GRAHAM is the

listed complainant who initiated the actions that resulted in the administrative

investigation and disciplining of BERMINGHAM.

6. At all times relevant hereto, GRAHAM acted under color of state law,

and is being sued in his individual, as well as within his official, capacity.

7. JURISDICTION: CITY and GRAHAM are subject to the jurisdiction

of the United States District Court, Middle District of Florida, Ocala Division.

8. Jurisdiction is appropriate as all events relevant to the instant cause of

action occurred in and/or around the City of Clermont, Lake County, Florida,

within the Middle District of Florida.

5

9. This action is brought pursuant to 42 U.S.C. Sections 1983 and 1988,

as well as the First Amendment to the Constitution of the United States and claims

arising under the laws of the State of Florida. The jurisdiction is invoked pursuant

to 28 U.S.C. Section 1331 and 1343(3), (4) of the aforementioned constitutional

and statutory provisions.

10. Further, jurisdiction is appropriate over the state law claim for

violations of Fla. Stat. § 112.531, et seq., arise pursuant to the District Court’s

supplemental jurisdiction, 28 U.S.C. §1367.

11. VENUE: The conduct complained of and situs of its Police Chief,

Defendant GRAHAM, and the CITY regarding the discipline of BERMINGHAM

is within Lake County, within the Middle District of Florida. Therefore, venue is

proper in this Court.

12. The initiation of the administrative investigation against

BERMINGHAM by Defendant GRAHAM; the ensuing administrative

investigation pursued by Defendant GRAHAM as the Clermont Police Chief; the

findings of the administrative investigation, and the ultimate decision rendered first

by Defendant GRAHAM; and the affirming of GRAHAM’s disciplinary findings

and decision by CITY, by and through City Manager Saunders on June 21, 2010

(upholding the disciplinary employment-related sanctions against BERMINGHAM

as a Clermont Police Officer), occurred within Lake County, Florida, within the

6

Middle District of Florida. Accordingly, venue is proper in this Court pursuant to

28 U.S.C. § 1391(b).

13. Pursuant to Florida law, municipal police officers are provided with

Career Service status. Fla. Stat. §§ 110.205, 110.227. As a Career Service

employee, BERMINGHAM is shielded from actions involving dismissal absent a

finding of just cause. Further, there is a constitutionally-safeguarded property

interest created in BERMINGHAM’s position as a CLERMONT POLICE Officer,

thus according him with the right to procedural due process. Ison v. Zimmerman,

372 So.2d 431 (Fla. 1979); McRae v. Douglas, 644 So.2d 1368 (Fla. 5th DCA

1994).

14. There are multiple sources for the administrative procedure in place at

Clermont PD and pursuant to the rights retained by BERMINGHAM as a law

enforcement officer, Career Service Officer, and as an employee of the City of

Clermont, to wit:

a. Clermont Police Department General Orders, at §

10.02. A true and correct copy of the applicable

section is attached hereto as BERMINGHAM

Exhibit No. 1.

b. The Collective Bargaining Agreement between the

CITY and the official union bargaining unit for the

Clermont Police Department, at Art. 5. A true and

correct copy of the applicable section is attached

hereto as BERMINGHAM Exhibit No. 2.

7

c. Florida Statutes § 110.227 (2010), defining the

rights of Career Service Employees, and

instructing the agency adoption of rules and

regulations for administration of investigations. A

true and correct copy of the statute is attached

hereto as BERMINGHAM Exhibit No. 3.

d. Florida Statutes §§ 112.531, et seq., the “Law

Enforcement Officers Bill of Rights” (hereinafter,

“LEOBOR”), which defines the rights

safeguarding law enforcement officers from being

subjected to arbitrary and capricious agency action

during the initiation, investigation, and execution

of administrative investigations. A true and

correct copy of the LEOBOR is attached hereto as

BERMINGHAM Exhibit No. 4.

e. The City of Clermont’s Harassment Policy, which

stated1 that “[i]t is the obligation of all department

heads, supervisors and employees of the City to

provide a work environment free of harassment.”

Separately, the same Policy provides for a ‘no

tolerance’ retaliation policy against any employee

for cooperating in an investigation or for making a

complaint of harassment.” A true and correct copy

of the City of Clermont’s Harassment Policy is

attached hereto as BERMINGHAM Exhibit No. 5.

FACTUAL BACKGROUND

15. Defendant CITY employed BERMINGHAM between October 2006,

and April 2010.

1 On January 10, 2012, the City of Clermont amended this policy to exclude the obligation of departmental and

supervisory personnel to provide a workplace free of harassment.

8

16. Throughout his tenure with CITY, BERMINGHAM’s performance

appraisals indicated that he was an above-average employee with a good working

knowledge of criminal laws and procedures. He had no “less than satisfactory”

marks, many “better than satisfactory” marks, and a few “outstanding” marks.

17. For example, BERMINGHAM’s evaluation for the period of October

2007, through October 2008 (the last evaluation period ever rendered to

BERMINGHAM by Defendants), rated his quality of work and job knowledge as

better than satisfactory, and his judgment as satisfactory. In his overall comments,

BERMINGHAM’s supervisor, Sergeant Mark Edwards, wrote that

BERMINGHAM was a “well-rounded officer and spends a lot of his free time

trying to better himself by studying case law and Florida statutes. He is thorough

in his investigations and devotes time to each case he is involved in.”

18. Notwithstanding this high level of job performance, in April 2010,

BERMINGHAM was terminated for violations of the following Clermont PD

General Orders:

a. General Order (hereinafter, “G.O.”) 10.01

II.B.#161, titled “Conduct Unbecoming a Member

of the Department.”

b. G.O. 10.01, a generic charge of “Standards of

Conduct.”

c. G.O. 10.01, II.E.2, titled “Careless Disregard.”

9

With regard to the “Careless Disregard” count, above, the Defendants injected the

count following BERMINGHAM’s administrative interrogation, and without ever

providing him with notice to address the allegation at any time prior to imposition

of discipline – dismissal from service. In doing so, the Defendants violated

BERMINGHAM’s rights under the LEOBOR.

19. Specifically, CITY, by and through Defendant GRAHAM, concluded

that “Officer BERMINGHAM’s conduct in creating and forwarding an email

accusing Chief Graham of criminal conduct had an adverse impact on the

Department and has destroyed public respect and confidence in our agency. Of.

BERMINGHAM’s actions were reckless and malicious ....”

20. The acknowledged factual basis for the CITY’s charge, and for its

ultimate dismissal of BERMINGHAM on the allegation raised in ¶ 19, above, was

in response to BERMINGHAM’s private speech made while off-duty to another –

specifically, now-former Clermont Police Sergeant Kimberly Meintzschel

(hereinafter, “Meintzschel”).

21. The private speech between BERMINGHAM and Meintzschel was

premised around the latter’s investigation of a citizen’s complaint, by Christina

Vaughan, alleging criminal misconduct by Defendant GRAHAM during the arrest

of Charles Williams on June 6, 2009.

10

22. The June 6, 2009, incident involved Defendant GRAHAM acting,

while in his capacity as a law enforcement officer, to make alleged extortive

threats upon Christina Vaughan to force entry into her dwelling – without a

warrant and without any exigent circumstances permitting for the warrantless entry

into Christina Vaughan’s home – in order to arrest Charles Williams.

23. Meintzschel had privately contacted BERMINGHAM for friendly

advice on the situation and to comment, based upon his private knowledge, on the

legality of GRAHAM’s alleged actions.

24. BERMINGHAM had privately, and while off-duty, responded to

Meintzschel’s request, and provided the relevant authority upon which Meintzschel

could make a decision regarding the legality of GRAHAM’s allegedly criminal

actions.

25. Thereafter, the administrative investigation of BERMINGHAM on the

allegation contained in ¶¶ 19-20, above, was initiated by Defendant GRAHAM,

while acting in both his official and individual capacity.

26. Based upon information and belief, GRAHAM’s initiation of the

administrative investigation against BERMINGHAM, and the ensuing

investigation, findings and discipline, were also committed in retaliation for

BERMINGHAM’s private actions in reporting to the Florida Department of Law

Enforcement (“FDLE”) other unlawful and/or improper actions by GRAHAM.

11

27. In October 2009, BERMINGHAM, alongside other members of the

Clermont Police Department, while off-duty and acting as private citizens,

approached FDLE to request a formal investigation be mounted against Defendant

GRAHAM within his capacity as Clermont Police Chief. These off-duty officers,

acting in a civilian capacity, included the following individuals with the following

matters of public concern:

a. BERMINGHAM, who attempted to bring to the

attention of FDLE an assault, and later battery

committed by GRAHAM against Clermont Police

Officer James Rooney.

b. Cecil Garrett, who attempted to bring to the

attention of FDLE the potential criminal felony

actions of GRAHAM on the evening of June 6,

2009, and involving the forced entry into the home

of Christina Vaughan.

c. Gary Holmes who, at the time, had been

unlawfully terminated from his position with

Clermont PD (and was later reinstated through

arbitration), and who attempted to bring to the

attention of FDLE GRAHAM’s threats of, and

taking action to perpetuate, unlawful criminal

arrest of innocent citizens.

d. Jeff Radi, who attempted to bring to the attention

of FDLE GRAHAM’s physical assault and arrest

on a juvenile suspect within the suspect’s home,

and for which there was no probable cause to

legitimize an arrest.

12

e. Kimberly Meintzschel, who attempted to bring to

the attention of FDLE GRAHAM’s misconduct in

ignoring fraudulent misconduct by another police

sergeant that was resulting in the theft of taxpayer

dollars.

f. Mark Edwards, who attempted to bring to the

attention of FDLE other inappropriate and/or

unlawful misconduct by GRAHAM.

28. FDLE failed to conduct any substantive investigation on any of the

matters brought to its attention (and as alleged in ¶ 27, above). A brief inquiry was

opened by FDLE based upon the allegations sought to be raised by Cecil Garrett,

and later by Kimberly Meintzschel. However, even that inquiry failed to

thoroughly investigate the allegations lodged against GRAHAM.

29. Based upon information and belief, Defendants became aware of the

citizen complaints of its six (6) officers and targeted each one with retaliatory

action.

30. All of the six (6) Clermont Police Officers mentioned in ¶ 27 were

subjected to retaliatory discipline by Defendants, to wit:

a. BERMINGHAM, Cecil Garrett and Kimberly

Meintzschel were subsequently confronted with

fabricated administrative charges that resulted in

dismissal;

b. Jeff Radi, confronting similar retaliatory

discipline, resigned his law enforcement position

prior to the Defendants effectuating imposition of

serious disciplinary sanctions.

13

c. In late-2011, Mark Edwards was the subject of

retaliation resulting in his demotion in rank by

GRAHAM.

d. Gary Holmes, reinstated to his law enforcement

position with Clermont PD, following an

arbitration challenge to his dismissal, was perhaps

not again subjected to dismissal, but was

nonetheless victimized by continuous retaliatory

discipline by the Defendants. This same retaliation

ultimately forced Holmes’ decision to take early

retirement in mid-2011.

31. BERMINGHAM’s termination arose following a campaign by

Defendants to discredit him through the initiation of false administrative charges,

followed by ‘kangaroo’ investigations, and the imposition of discipline that would

eventually result – under a scheme of ‘progressive discipline’ – in

BERMINGHAM’s dismissal from his career service position.

32. The Defendants targeted BERMINGHAM for dismissal as a direct

result of him exercising his First Amendment rights as a private citizen to raise,

discuss, and associate with others regarding issues of public importance.

33. BERMINGHAM’s protected activity under the First Amendment was

a substantial or the exclusive motivating factor of the Defendants’ decisions to

initiate, pursue, impose and uphold discipline against BERMINGHAM, up through

and including his termination.

14

34. Further, in targeting BERMINGHAM for his exercise of his First

Amendment rights, the Defendants also violated BERMINGHAM’s rights under

the Law Enforcement Officers’ Bill of Rights, codified under Fla. Stat. § 112.531,

et seq.

35. The Law Enforcement Officers’ Bill of Rights (“LEOBOR”) is an

articulation by the Florida State Government of procedural due process protections

to be accorded to certified law enforcement officers whenever confronting with

administrative, i.e., “internal” discipline.

36. Specifically, in the administrative investigations that resulted in

BERMINGHAM’s discipline and eventual dismissal, the Defendants, including

GRAHAM in both his official and individual capacities, violated the following

LEOBOR protections:

a. BERMINGHAM was deprived of relevant

documentation or the ability to review such

documentation prior to his interrogations and

pertaining to his charge(s) including, but not

limited to, witness statements and other

investigatory documents.

b. In the instances where GRAHAM initiated the

administrative complaint against him,

BERMINGHAM never received a sworn statement

from GRAHAM, and was never advised if one was

ever obtained from GRAHAM. Indeed, on at least

one occasion, BERMINGHAM was never even

advised that the complainant was, in fact,

GRAHAM.

15

c. During various investigations, BERMINGHAM

was not fully apprised of material witnesses,

whether or not such witnesses were interviewed

prior to his own interrogation, and was not

provided with the opportunity to review the

statements of all material witnesses. Indeed, in

several instances, material witnesses to the

investigation were never interviewed by the

assigned internal investigator with Clermont PD.

d. BERMINGHAM was deprived of the opportunity

to gather evidence that could have exonerated him

of any charge(s).

e. BERMINGHAM was, on occasion, not provided

with any opportunity to appeal the lack of proper

notice, or the discipline that was imposed by the

Defendants.

f. As mentioned in ¶ 19, above, BERMINGHAM

was never provided with any notice of the injection

of an additional count, post-administrative

interrogation, in the case that acted as the pretext

for his termination from service.

37. Nonetheless, during 2009, BERMINGHAM was subjected to the

following, retaliatory actions by Defendants that resulted in him receiving one (1)

reprimand, two (2) suspensions, and – eventually culminating in – a dismissal from

his law enforcement position:

a. On June 1, 2009, BERMINGHAM was improperly

deemed responsible for, and reprimanded for,

violating a Clermont Police Department General

Order concerning job knowledge and performance.

In the case, the CITY failed altogether in its

16

obligation to interview any and all material

witnesses – including the complainant.

b. On September 1, 2009, the Department suspended

BERMINGHAM for one (1) day over an

allegation that should never have been sustained

against BERMINGHAM. The arbitrator later

overrode this finding and discipline. However, the

arbitrator’s expunction of that finding and

discipline bears on whether BERMINGHAM’s

subsequent termination was unlawful.

c. On December 28, 2009, the Defendants retaliated

against BERMINGHAM, and subjected him to a

five (5) day suspension. BERMINGHAM grieved

this suspension; however, the CITY ignored

BERMINGHAM’s efforts to administratively

appeal this determination. Ultimately, in rather

unorthodox fashion, the arbitrator in

BERMINGHAM’s administrative appeal of his

dismissal decided to address these matters

previously ignored by CITY.

38. BERMINGHAM’s termination, as discussed in ¶¶ 18-24, above,

resulted from the retaliatory disciplining of Meintzschel by the Defendants. This

disciplinary action against Meintzschel resulted from her efforts to report

GRAHAM’s perceived, unlawful actions in the matter pertaining to Christina

Vaughan.

39. BERMINGHAM was interrogated twice as a witness during the

Meintzschel investigation by the assigned investigator, Captain Jon Johnson

(hereinafter, “Johnson”) – the second-ranking officer at Clermont PD.

17

40. During the course of these interviews, BERMINGHAM stated to

Johnson that he had emailed Meintzschel in response to a request from the latter

seeking ‘bullet points’ regarding Fla. Stat. § 836.05, titled “Threats-Extortion.”

41. Meintzschel had planned on using BERMINGHAM’s input on Fla.

Stat. § 836.05 in drafting an email to Clermont City Manager Wayne Saunders,

and to bring to Saunders’ attention the actions of GRAHAM involving Christina

Vaughan.

42. The emails between Meintzschel and BERMINGHAM all occurred

off-duty and on each individual’s respective, private email accounts.

43. Subsequently, Johnson reported BERMINGHAM’s email to

GRAHAM. This private communication, on a matter of great public concern, i.e.,

the potentially felony criminal actions of a police chief, resulted in GRAHAM

initiating an administrative complaint, in his individual capacity and in his official

capacity, against BERMINGHAM.

44. The administrative complaint lodged by GRAHAM (and directly

implicating actions that personally involved GRAHAM), both in his individual

capacity and under color of his authority as Police Chief, resulted in him assigning

Johnson to the investigation of BERMINGHAM; resulted in the regular, improper

and unlawful discussions between Johnson and GRAHAM, contrary to the

confidentiality provisions of the LEOBOR; and resulted in the overall supervision

18

of the investigation by GRAHAM. See Complaint, at ¶ 18 (enumerating the

charges pursued against BERMINGHAM by GRAHAM and CITY).

45. Ultimately, GRAHAM also exercised his official authority to review,

affirm, and impose discipline, i.e., termination, over BERMINGHAM.

46. During the course of the administrative investigation against

BERMINGHAM, as discussed in ¶¶ 44-45, above, Defendants again attempted to

interrogate BERMINGHAM. Through the intervention of an attorney retained by

the union bargaining unit, the International Union of Police Organizations

(“IUPA”), this additional attempt to unlawfully subject BERMINGHAM to

additional interrogation was abandoned by Defendants.

47. Substantial disciplinary and non-disciplinary action was directed

against BERMINGHAM in retaliation for his private speech that addressed the

perceived unlawful actions of GRAHAM.

48. After BERMINGHAM’s termination, the CITY did not pursue a

challenge over BERMINGHAM’s entitlement to unemployment compensation. In

other words, the CITY did not choose to assert that there was a legitimate cause for

BERMINGHAM’s dismissal and consequent deprivation of his entitlement to

unemployment compensation.

49. As a direct and proximate result of Defendants’ actions complained of

herein, BERMINGHAM has suffered and will continue to suffer harms including,

19

but not limited to, lost wages and benefits; severe economic loss; the chill of, and

punishment for, the lawful exercise of his rights under the First Amendment;

severe emotional distress, shame, humiliation, loss of enjoyment of life, and mental

anguish.

FIRST CAUSE OF ACTION

Violation of Free Speech –

In Violation of the First & Fourteenth Amendments

(As to Defendants CITY and GRAHAM)

50. BERMINGHAM reasserts and realleges the above allegations in ¶¶ 1-

49, as if fully set forth herein.

51. BERMINGHAM was, at all times relevant hereto, engaged in the

lawful exercise of his First Amendment rights when, as a private citizen, he spoke

on matters of public concern.

52. In initiating, imposing, affirming and maintaining disciplinary action

against BERMINGHAM, based in whole or in part upon the exercise of his rights

to Association, Free Speech and to Petition the Government for Redress of

Grievances upon matters of public concern, Defendants jointly and severally,

violated his rights secured to BERMINGHAM by the First and Fourteenth

Amendments to the United States Constitution.

53. The actions of Defendants CITY and GRAHAM were intended to

create a chilling effect upon the exercise of BERMINGHAM’S rights under the

20

First Amendment.

54. Defendants CITY and GRAHAM acted under the color of law, or

were willful participants in joint official action with, and was jointly engaged with,

others who acted under the color of law, including under the color of federal and

state law, custom, or usage when taking the actions referenced above and herein.

55. Defendants CITY and GRAHAM, acting under color of law and

pursuant to official policy, custom or usage, knowingly, recklessly, or with gross

negligence failed to instruct, supervise, control and discipline on a continuing basis

its managers, agents in their duties to refrain from:

a. Unlawfully and maliciously harassing law

enforcement officials, including BERMINGHAM,

who was acting in accordance with his

constitutional and statutory rights, privileges and

immunities.

b. Unlawfully and maliciously prosecuting law




immunities.

c. Conspiring to violate the rights, privileges and

immunities guaranteed to BERMINGHAM by the

United States Constitution, and federal and state

law; and

d. Otherwise depriving BERMINGHAM of his


immunities.

21

56. Defendants CITY and GRAHAM possessed knowledge, or should

have possessed knowledge – had it diligently exercised those duties to instruct,

supervise, control and discipline on a continuing basis – that the wrongs conspired

to be done, as heretofore alleged, were about to be committed.

57. Defendants CITY and GRAHAM possessed the power to prevent or

aid in preventing the commission of said wrongs; could have done so via the

exercise of reasonable diligence; and knowingly, recklessly, or with gross

negligence failed or refused to do so.

58. Defendants CITY and GRAHAM directly or indirectly, under color of

law, approved or ratified the unlawful, deliberate, malicious, reckless, and wanton

conduct of their managers its agents, as heretofore described.

59. As a direct and proximate cause of the grossly negligent and/or

intentional acts of Defendants CITY and GRAHAM, BERMINGHAM has

suffered loss of income, and severe mental anguish in connection with the

deprivation of his constitutional and statutory rights, as guaranteed by the First and

Fourteenth Amendment of the United States Constitution.

60. By virtue of Defendants CITY and GRAHAM’s violations of the First

and Fourteenth Amendments, BERMINGHAM respectfully requests declaratory

and injunctive relief, and such other and further relief as the Court shall deem just,

equitable and proper.

22

WHEREFORE, BERMINGHAM demands judgment, pursuant to 42 U.S.C.

§ 1983, against Defendants CITY and GRAHAM for declaratory and injunctive

relief, compensatory damages, punitive damages, all costs associated with this

action including, but not limited to, attorneys’ fees, and any and all such other

relief as deemed just and equitable.

SECOND CAUSE OF ACTION

Violation of 42 U.S.C. § 1983

Deprivation of BERMINGHAM’S Civil Rights Pursuant to State Action and

Under Color of State Law –

Refusal or Neglect to Prevent Violation of Civil Rights




62. Defendants CITY and GRAHAM acted under the color of law, or

were willful participants in joint official action with, and were jointly engaged

with, others who acted under the color of law, including under the color of federal

and state law, custom, or usage when taking the actions referenced above and

herein.

63. Defendants CITY and GRAHAM acting under color of law and

pursuant to official policy, custom or usage, knowingly, recklessly, or with gross

negligence failed to instruct, supervise, control and discipline on a continuing basis

its managers and agents in their duties to refrain from:

23

a. Unlawfully and maliciously harassing law




immunities.

b. Unlawfully and maliciously prosecuting law




immunities.

c. Conspiring to violate the rights, privileges and

immunities guaranteed to BERMINGHAM by the

United States Constitution, and federal and state

law; and

d. Otherwise depriving BERMINGHAM of his


immunities.

64. Defendants CITY and GRAHAM possessed knowledge, or should

have possessed knowledge – had they diligently exercised those duties to instruct,

supervise, control and discipline on a continuing basis – that the wrongs conspired

to be done, as heretofore alleged, were about to be committed.

65. Defendants CITY and GRAHAM possessed the power to prevent or

aid in preventing the commission of said wrongs; could have done so via the

exercise of reasonable diligence; and knowingly, recklessly, or with gross

negligence failed or refused to do so.

24

66. Defendants CITY and GRAHAM directly or indirectly, under color of

law, approved or ratified the unlawful, deliberate, malicious, reckless, and wanton

conduct of its managers agents, as heretofore described.

67. As a direct and proximate cause of the grossly negligent and

intentional acts of Defendants CITY and GRAHAM, BERMINGHAM has

suffered loss of income, and severe mental anguish in connection with the

deprivation of his constitutional and statutory rights, as guaranteed by the

Fourteenth Amendment of the United States Constitution, and safeguarded by 42

U.S.C. § 1983.

68. By virtue of Defendants CITY and GRAHAM’s violations of § 1983,

BERMINGHAM is entitled to injunctive relief, compensatory damages, punitive

damages, and attorneys’ fees.

WHEREFORE, BERMINGHAM demands judgment, pursuant to 42 U.S.C.

§ 1983, against Defendants CITY and GRAHAM for injunctive relief,

compensatory damages, punitive damages, all costs associated with this action

including, but not limited to, attorneys’ fees, and any and all such other relief as

deemed just and equitable.

25

THIRD CAUSE OF ACTION

Violations of the Florida Statutes Sections 112.532 and 112.533

“The Law Enforcement Officers Bill of Rights,”

Statutory Rights to Procedural Due Process




70. The actions of Defendants CITY and GRAHAM affected a

deprivation upon BERMINGHAM’s rights pursuant to Fla. Stat. §§ 112.532,

112.533, the “Law Enforcement Officers’ Bill of Rights.” These violations,

including the making of false reports, the pursuit of investigation premised upon

false reports, and the violation of the substantive protections contained within

those laws, and intended specifically to shield BERMINGHAM from arbitrary and

capricious official and private action, correspondingly resulted in violations of

BERMINGHAM’s fundamental rights to procedural due process under the

Fourteenth Amendment.

71. The unlawful actions of the Defendants in violation of the Law

Enforcement Officers’ Bill of Rights resulted in a deprivation of a specific

property interest to BERMINGHAM, i.e., his career service position as a law

enforcement officer, and his ability to continue practicing within the law

enforcement profession.

26

72. Separately and specifically, the unlawful actions of GRAHAM, acting

in both an official and individual capacity, in initiating the retaliatory disciplinary

action against BERMINGAM, constituted a direct violation of the LEOBOR and,

consequently, effecting injury to BERMINGHAM including, but not limited to, a

deprivation of BERMINGHAM’s property interests.

73. BERMINGHAM’s unlawful dismissal from Clermont PD has

effectively rendered him permanently unemployable within his chosen career as a

law enforcement officer.

74. The Defendants knew, or were on constructive notice, that their

actions were violative of state statute, and would result in real harm to

BERMINGHAM.

WHEREFORE, BERMINGHAM requests that this Honorable Court will

grant judgment in his favor, and respectfully requests that this Court grant the

following relief:

a. Enter an order finding that the Defendants have

violated Fla. Stat. § 112.531, et seq. (“The Law

Enforcement Officers’ Bill of Rights”) and have

thus violated BERMINGHAM’s constitutional and

statutory rights.

b. Order the Defendants to make BERMINGHAM’s

whole as provided by Fla. Stat. § 112.531, et seq.

27

c. Award BERMINGHAM’s compensatory damages,

including, but not limited to damages for

emotional distress, humiliation, and public shame.

d. Award BERMINGHAM’s compensation for past

pecuniary losses including, but not limited to back

pay, with pre-judgment interest, loss of vacation

pay, loss of health insurance benefits, loss of

retirement benefits and all other losses due to

violation of the LEOBOR culminating in

BERMINGHAM’s retaliatory dismissal from his

employment with Clermont PD.

e. Award BERMINGHAM’s damages, costs, interest

and attorneys’ fees all as provided under the

LEOBOR.

f. Grant such further relief as the Court deems just

and proper.

PRAYER FOR RELIEF

WHEREFORE, BERMINGHAM respectfully requests that this Court

furnish the following relief:

1. Declaratory and injunctive relief, as well as any

additional damages and costs, pursuant to the First and

Fourteenth Amendments to the United States

Constitution.

2. Pursuant to Title 42 U.S.C. § 1983, equitable relief,

compensatory and punitive damages for the actions of

Defendants are in violation of the United States

Constitution, federal law, and corresponding state law;

3. Pursuant to Fla. Stat. §§ 112.532, 112.533, equitable

relief, compensatory and punitive damages for the

actions of the Defendants in violating the statutory rights

28

further protecting procedural and substantive due process

to law enforcement officers.

4. Equitable relief on all Causes of Action arising from

violations to civil rights and/or in tort against the

Defendants.

5. An award of compensatory and punitive damages to

BERMINGHAM on all Causes of Action arising from

violations to civil rights and/or in tort against the

Defendants.

6. An award of all costs and fees incurred in the prosecution

of this action.

7. Attorneys’ fees and costs pursuant to 42 U.S.C. § 1988.

8. Grant such other and further relief as the Court shall

deem just, equitable and proper.

A JURY IS REQUESTED IN THIS MATTER.

29

CERTIFICATE OF SERVICE

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

furnished via hand delivery and certified process server to Office of the City

Attorney Daniel Mantzaris, City of Clermont, Florida, c/o DeBeaubien, Knight,

Simmons, Mantzaris & Neal, LLP, 332 North Magnolia Avenue, Orlando, Florida

32801, this 17th

day of January 2012.

THE TATE FIRM, PLLC

__________________________________

DEREK B. BRETT, ESQ.

Florida Bar No.: 0090750

KELLIE E. TOMEO, ESQ.

Florida Bar No.: 188425

1301 West Colonial Drive

Orlando, Florida 32804

Telephone: (407) 781-2392

Facsimile: (407) 429-3856

[email protected]

[email protected]

Attorneys for Plaintiff BERMINGHAM

mailto:[email protected]

mailto:[email protected]

30

VERIFICATION OF PETITIONER

STATE OF FLORIDA

COUNTY OF ORANGE

I, KYLE BERMINGHAM, have read the foregoing Verified Petition for

Preliminary Injunction and declare that the factual statements contained therein, as

well as within the Complaint filed contemporaneous with the Verified Petition, are

both true and correct.

____________________________________

KYLE BERMINGHAM

Affirmed and signed before me on this 17th day of January 2012, by KYLE

BERMINGHAM.

( ) who is personally known to me, or

( ) who produced the following identification:

________________________________.

KYLE BERMINGHAM personally appeared before me at the time of

notarization, and after being given the oath, signed and acknowledged signing the

foregoing Verification in Support of the Verified Complaint.

NOTARY PUBLIC:

SIGN: _____________________________________

PRINT: _____________________________________

Commission Expiration Date & Commission Number (SEAL)

verified complaint

Documents