                                                            [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                                                                    FILED
                          ________________________
                                                          U.S. COURT OF APPEALS
                                                            ELEVENTH CIRCUIT
                                No. 07-13439                    March 17, 2008
                            Non-Argument Calendar            THOMAS K. KAHN
                          ________________________                 CLERK

                  D. C. Docket No. 06-00426-CV-FTM-29-DNF

MICHAEL MASCHMEIER,

                                                              Plaintiff-Appellant,

                                     versus

MICHAEL SCOTT,
as Sheriff of Lee County, Florida,

                                                             Defendant-Appellee.

                          ________________________

                   Appeal from the United States District Court
                       for the Middle District of Florida
                        _________________________

                                (March 17, 2008)

Before TJOFLAT, ANDERSON and BLACK, Circuit Judges.

PER CURIAM:

      Michael Maschmeier appeals the district court’s grant of summary judgment
to Sheriff Michael Scott on Maschmeier’s 42 U.S.C. § 1983 claim of retaliatory

discharge for political activities. On appeal, Maschmeier argues that the district court

erred in finding that Scott was not a final policymaker and that Maschmeier’s

termination was lawful. Maschmeier also contends that the district court erred in

ignoring his claim regarding retaliation for submission of a complaint to the Florida

Election Commission.

                                        I.   FACTS

       Maschmeier was employed in the Lee County Sheriff’s Office from 1980

until his termination in January of 2006.1 At some point he became a deputy

sheriff, and in 2000 was promoted to patrol sergeant. In 2004, the sheriff’s

election took place, in which the incumbent sheriff, Rod Shoap, ran against

Michael Scott. Maschmeier supported Shoap’s reelection. In support of Shoap’s

candidacy, Maschmeier participated in a door-to-door canvas, held a sign

supporting Shoap in public view, and attended two debates between the

candidates, at one of which he asked a question. Maschemeier also spoke of his

support for Shoap in off-duty conversations, chauffeured Shoap in public parades,

and donated money to Shoap’s campaign. Scott defeated Shoap in the election.


       1
          Because Maschmeier appeals from a grant of summary judgment to Scott, we view the
facts in the light most favorable to Maschmeier here. See Gitlitz v. Compagnie Nationale Air
France, 129 F.3d 554, 556 (11th Cir. 1997).

                                              2
       After the election, Scott requested the resignations of members of Shoap’s

executive staff. Other officers who had supported Shoap were also dismissed or

demoted. Maschmeier retained his position. Sometime after the election,

Maschmeier requested a transfer to the day shift, which was refused. Maschmeier

did receive a reassignment to a desk position on the night shift, which he had not

requested. He was then transferred to a different district. Maschmeier was

transferred to another desk position in October 2005.

       At a meeting after his first reassignment, some of Maschmeier’s superiors

said that they knew he was unhappy about Scott’s election to sheriff.

Maschmeier’s immediate supervisor also said that he knew Maschmeier was upset

about the new administration. In response to these statements, Maschmeier

reiterated his commitment to the department and to Sheriff Scott.

       In November 2005, while off-duty, Maschmeier began preparing public

document requests regarding Scott and his supporters. Maschmeier conducted

some internet searches on his co-workers while on the night shift, and also

downloaded two “scrubber” programs onto his computer, in violation of office

policy.2 At some point he also filed a complaint against Scott with the Florida


       2
        According to the deposition of a lieutenant in the technical investigation and support
division of the sheriff’s office, the scrubber programs are used to delete internet cookies and
recent document lists, but not actual files.

                                                 3
Election Commission. Suspecting that Maschmeier was preparing his public

records requests while on duty, Deputy Chief Ferrante ordered an examination of

Maschmeier’s computer. The examination revealed the installation of the

unauthorized scrubber programs and the remnants of a public records request.

After an internal affairs investigation, which substantiated the findings of the

examination of Maschmeier’s computer, Scott terminated Maschmeier’s

employment in January 2006. Maschmeier filed suit against Scott in his official

capacity in August 2006, alleging unconstitutional retaliation for Maschmeier’s

political activities and for his election commission complaint. The district court

granted summary judgment to Scott, and this appeal followed.

                                 II.   DISCUSSION

      Maschmeier argues that the district court erred in finding that Scott was not

a final policymaker for the Lee County Sheriff’s Office and that Maschmeier’s

involvement with Shoap’s reelection campaign was not protected political speech.

We review a grant of summary judgment de novo, viewing the evidence in the

light most favorable to the non-moving party and applying the same legal

standards as the district court. Gitlitz, 129 F.3d at 556. We also review de novo a

district court’s determination that an official is or is not a final policymaker. Scala

v. City of Winter Park, 116 F.3d 1396, 1399 (11th Cir. 1997).

                                           4
      A.     Final Policymaker Analysis

      Maschmeier filed suit against Scott in his official capacity as Sheriff of Lee

County only. Suits against state officials in their official capacity are treated as

suits against the state itself. Hafer v. Melo, 502 U.S. 21, 25, 112 S. Ct. 358, 361

(1991). Maschmeier’s suit therefore attempts to hold Lee County liable for Scott’s

actions as Sheriff. Municipalities cannot be liable under 42 U.S.C. § 1983 on a

theory of respondeat superior. Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691,

98 S. Ct. 2018, 2036 (1978). Rather, “[m]unicipal liability under 42 U.S.C. §

1983 may be premised upon a single illegal act by a municipal officer only when

the challenged act may fairly be said to represent official policy, such as when that

municipal officer possesses final policymaking authority over the relevant subject

matter.” Morro v. City of Birmingham, 117 F.3d 508, 510 (11th Cir. 1997).

Therefore, in order for Maschmeier to prevail on his § 1983 claims, Scott must

have been the final policymaker in regard to Maschmeier’s termination.

      A municipal official is not a final policymaker when his or her decisions are

subject to meaningful administrative review. Scala, 116 F.3d at 1401. Automatic

review of the official’s decisions is not required for the review to be meaningful;

an opportunity for meaningful review is sufficient. Id. at 1402. When a council or

board has the power to review and reverse a municipal official’s decision, final

                                           5
policymaking authority does not vest in the official. See Id. (holding that a city

manager and his subordinate were not final policymakers in regard to plaintiff’s

termination because a civil service board had the authority to review the

termination); Quinn v. Monroe County, 330 F.3d 1320, 1326 (11th Cir. 2003)

(finding that the career services council’s power to review the county

administrator’s termination decision deprives the county administrator of final

policymaking authority); Manor Healthcare Corp. v. Lomelo, 929 F.2d 633, 637

(11th Cir. 1991) (holding that the city council’s ability to override the mayor’s

veto in regard to zoning issues meant that the mayor was not the final policymaker

for zoning decisions). The plaintiff can try to demonstrate that the board’s review

is not meaningful, such that the official should be considered the final

policymaker. See Quinn, 330 F.3d at 1326; Scala, 116 F.3d at 1402. To succeed

in such an argument, the plaintiff would need to show that the board has defective

procedures, merely “rubber stamps” the official’s decisions, or ratified the

official’s decision and improper motive. See Quinn, 330 F.3d at 1326; Scala, 116

F.3d at 1402. However, the existence of a reviewing board has generally been

sufficient to find that the official in question did not have final policymaking

authority. See, e.g., Quinn, 330 F.3d at 1326; Morro, 117 F.3d at 514; Scala, 116

F.3d at 1402-03.

                                          6
       In this case, there is a civil service board (“Board”) that reviews the sheriff’s

termination decisions. The Board has the authority to reinstate an employee

terminated by the sheriff. Maschmeier has not argued that the Board’s

proceedings or process are deficient, nor has he argued that the Board ratified

Scott’s allegedly unconstitutional decision and improper motive.3 Instead,

Maschmeier contends that because the Board has only overturned one termination

by the sheriff in fifteen years, it does not provide meaningful review of the

sheriff’s decisions. Even taken in the light most favorable to Maschmeier, we

cannot conclude that this low reversal rate renders the Board’s review meaningless

under our case law. As Maschmeier himself acknowledges, a majority of the

employees appearing before the Board admit their wrongdoing and seek only a

mitigation of the penalty. Given the minority of cases in which the employee is

seeking a reversal of his or her termination, one overturned termination in fifteen

years is not sufficient to show that the Board is a mere “rubber stamp.” Therefore,

we find that the sheriff’s termination decisions are subject to meaningful

administrative review, and Scott thus cannot be the final policymaker.4

       3
       Maschmeier did not appeal his termination to the Board, so he cannot make this
argument in any event.
       4
         Maschmeier also argued on appeal that the district court erred in denying him additional
time for discovery to rebut Scott’s assertion that he was not a final policymaker. In order to hold
a municipality liable for the acts of a municipal official, the plaintiff must demonstrate that the

                                                 7
       Because Scott was not the final policymaker in regard to Maschmeier’s

termination, Maschmeier’s § 1983 claims must fail. We note that the district court

did not address Maschmeier’s claim of retaliation for filing a complaint with the

Florida Election Commission. However, because Scott was not the final

policymaker, Maschemeier cannot proceed with this retaliation claim, and we

accordingly find no error. Finally, Maschmeier’s argument regarding the

applicability of section 30.078 of the Florida Statutes is misplaced. Section 1983

provides a cause of action when a state or local official has violated the plaintiff’s

federal constitutional rights. 42 U.S.C. § 1983 (2006) (“Every person who, under

color of any statute, ordinance, regulation, custom, or usage, of any State or

Territory or the District of Columbia, subjects, or causes to be subjected, any

citizen of the United States or other person within the jurisdiction thereof to the

deprivation of any rights, privileges, or immunities secured by the Constitution

and laws, shall be liable to the party injured in an action at law, suit in equity, or

other proper proceeding for redress . . . .”). Therefore, a claim for a violation of

section 30.078 of the Florida Statutes cannot be brought under § 1983. The




official was a final policymaker. Morro, 117 F.3d at 510. The final policymaker element must
be proven as part of the plaintiff’s case; it is not an affirmative defense to municipal liability
under § 1983. Manor Healthcare, 929 F.2d at 636-37. We therefore find no error in the district
court’s refusal to grant extra discovery to Maschmeier.

                                                 8
judgment of the district court is accordingly

      AFFIRMED.




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