Dempsey v. Brevard County, Florida

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

ORLANDO DIVISION

RICHARD JAY DEMPSEY,

Plaintiff,

v. Case No: 6:21-cv-1763-PGB-LHP

JOHN VAUGHN,

Defendant.

/

ORDER

This cause comes before the Court on Defendant John Vaughn’s

(“Defendant”) Motion for Final Summary Judgment (Doc. 77 (the “Motion”)),

Plaintiff Richard Jay Dempsey’s (“Plaintiff”) Response to Deny Defendant’s

Motion for Final Summary Judgment (Doc. 82 (the “Response”)), and

Defendant’s Reply thereto (Doc. 86 (the “Reply”)). Magistrate Judge Leslie

Hoffman Price issued a Report recommending that this Court grant Defendant’s

Motion. (Doc. 91 (the “Report”)). Plaintiff timely filed his objections. (Docs. 92,

93, 94 (the “Objection”)). Upon consideration, the Court finds the Report is due

to be adopted and confirmed, and Defendant’s Motion is due to be granted.

I. BACKGROUND

The procedural and factual background as set forth in the Report are hereby

adopted and made a part of this Order. (See Doc. 91, pp. 1–4, 7–15).

II. STANDARDS OF REVIEW

A. Report and Recommendation

When a party objects to a magistrate judge’s findings, the district court must

“make a de novo determination of those portions of the report . . . to which

objection is made.” 28 U.S.C. § 636(b)(1). However, “[f]rivolous, conclusive, or

general objections need not be considered by the district court.” United States v.

Schultz, 565 F.3d 1353, 1361 (11th Cir. 2009) (citation omitted). The district court

“may accept, reject, or modify, in whole or in part, the findings or

recommendations made by the magistrate judge.” Id. The district court must

consider the record and factual issues independent of the magistrate judge’s

report, as de novo review is essential to the constitutionality of § 636. Jeffrey S. v.

State Bd. of Educ., 896 F.2d 507, 513 (11th Cir. 1990).

B. Summary Judgment

“The court shall grant summary judgment if the movant shows that there is

no genuine dispute as to any material fact and the movant is entitled to judgment

as a matter of law.” FED. R. CIV. P. 56(a). The party moving for summary judgment

must “cit[e] to particular parts of materials in the record, including depositions,

documents, electronically stored information, affidavits or declarations,

stipulations . . ., admissions, interrogatory answers, or other materials” to support

its position that it is entitled to summary judgment. FED. R. CIV. P. 56(c)(1)(A).

“The court need consider only the cited materials.” FED. R. CIV. P. 56(c)(3).

A genuine dispute of material fact is one from which “a reasonable jury could

return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 248 (1986). However, “[a] mere scintilla of evidence in support of the

non-movant is insufficient to defeat a motion for summary judgment.” Kesinger

ex rel. Estate of Kesinger v. Herrington, 381 F.3d 1243, 1249–50 (11th Cir. 2004)

(citing Anderson, 477 U.S. at 247). To defeat a motion for summary judgment, the

non-moving party must “go beyond the pleadings, and present affirmative

evidence to show that a genuine issue of material fact exists.” Porter v. Ray, 461

F.3d 1315, 1320 (11th Cir. 2006). The Court must draw all reasonable inferences in

favor of the non-moving party but may disregard assertions that are “blatantly

contradicted” by record evidence, such as videotape. See Scott v. Harris, 550 U.S.

372, 380 (2007).

C. Pro se Pleadings

“Pro se pleadings are held to a less stringent standard than pleadings drafted

by attorneys and will, therefore, be liberally construed.” Tannenbaum v. United

States, 148 F.3d 1262, 1263 (11th Cir. 1998). However, “a pro se litigant does not

escape the essential burden under summary judgment standards of establishing

that there is a genuine issue as to a fact material to his case in order to avert

summary judgment.” Brown v. Crawford, 906 F.2d 667, 670 (11th Cir. 1990).

Although courts show leniency to pro se litigants, courts “will not serve as de facto

counsel or ‘rewrite an otherwise deficient pleading in order to sustain an action.’”

Nalls v. Coleman Low Fed. Inst., 307 F. App’x 296, 298 (11th Cir. 2009) (quoting

GJR Invs., Inc. v. County of Escambia, 132 F.3d 1359, 1369 (11th Cir. 1998),

overruled on other grounds by Ashcroft v. Iqbal, 556 U.S. 662 (2009)).1 Pro se

litigants are still “subject to the relevant law and rules of court, including the

Federal Rules of Civil Procedure.” Moon v. Newsome, 863 F.2d 835, 837 (11th Cir.

1989), cert. denied, 493 U.S. 863 (1989).

III. DISCUSSION

In the Report, Magistrate Judge Hoffman Price recommended that the Court

grant Defendant’s Motion and enter judgment in favor of Defendant and against

Plaintiff. (Doc. 91, p. 35). Upon de novo review, and after considering Plaintiff’s

Objection, the Court agrees with the findings and conclusions in the Report.

Overall, Plaintiff’s Objection merely strings together sporadic factual

allegations, the majority of which are “[f]rivolous, conclusive, or general.” (See

generally Doc. 92); Schultz, 565 F.3d at 1361 (citation omitted). The relevance and

impact of these factual allegations on Magistrate Judge Hoffman Price’s legal

analysis remains unclear. (See Doc. 92).2 Accordingly, Plaintiff’s Objection does

1 “Unpublished opinions are not controlling authority and are persuasive only insofar as their

legal analysis warrants.” Bonilla v. Baker Concrete Constr., Inc., 487 F.3d 1340, 1354 n.7 (11th

Cir. 2007).

2 Simply put, the Court is unable to fully decipher the specific grounds upon which Plaintiff

objects. See, e.g., United States v. Schultz, 565 F.3d 1353, 1360–61 (11th Cir. 2009) (quoting

Marsden v. Moore, 847 F.2d 1536, 1548 (11th Cir. 1988)) (“Parties filing objections to a

magistrate’s report and recommendation must specifically identify those findings objected

to.”).

not identify an adequate basis for this Court to overrule the Report. Nonetheless,

the Court will address those objections that are relevant, specific, and decipherable

below.3

A. Plaintiff’s Obstruction

In analyzing the undisputed material facts in the light most favorable to

Plaintiff, Magistrate Judge Hoffman Price found that Plaintiff obstructed or

resisted Defendant from exercising his lawful duties in violation of Florida Statute

§ 843.02. (See Doc. 91, pp. 22–33). Plaintiff objects that a “fact in dispute is

obstruction.” (Doc. 92, p. 7). To support this, Plaintiff simply reiterates various

allegations regarding his conduct during the investigation. (See id. at pp. 3, 7).

However, in his Objection, Plaintiff still fails to “present affirmative evidence

to show that a genuine issue of material fact exists.” (See id.); Porter, 461 F.3d at

1320. Although Plaintiff relies on Mr. Curtis’ affidavit to assert his factual

allegations, the Court agrees with the Report’s finding that even taking Mr. Curtis’

3 The Court notes that Plaintiff’s Objection appears to center on his argument that “[t]he

Magistrate erred because there is no debate because Vaughn lied about the material facts in

his [Vaughns] probable cause affidavit and a constitutional violation occurred.” (See Doc. 92,

pp. 2–3 (citation omitted)). For clarity, the Court construes Plaintiff’s Objection into the

categories addressed herein. (Id.); Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th

Cir. 1998) (“Pro se pleadings are held to a less stringent standard than pleadings drafted by

attorneys and will, therefore, be liberally construed.”). With regard to objections not

addressed herein, Plaintiff fails to pinpoint any specific findings in the Report and address the

legal principles and reasoning with which he disagrees. (See Doc. 92). As such, the Court is

wholly unable to decipher the remaining grounds upon which Plaintiff objects. Accordingly,

the Court declines to address such objections.

affidavit as true, it “does not create a material issue of fact sufficient to defeat

summary judgment.” (Doc. 92, p. 7; Doc. 91, p. 28).4

As such, the Court agrees with Magistrate Judge Hoffman Price’s

aforementioned analysis and finding regarding Plaintiff’s obstruction. (See Doc.

91, pp. 22–33).

B. Florida Statute Violations

Pursuant to the probable cause affidavit, and as stated in the Report,

Defendant arrested Plaintiff for violations of Florida Statute § 843.02, “Resist

Officer WO Viol,” and Florida Statute § 856.011, “Disorderly Intox –

Miscellaneous.” (See Doc. 91, p. 11 (citing Doc. 79-1)). In his Objection, Plaintiff

argues that the “Florida Statute does not contain brawling and fighting interfering

with traffic. The state attorney committed a fraud by puting [sic] that in when the

information was filed.” (Doc. 92, p. 2). It appears Plaintiff is objecting to Florida

Statute § 877.03 as a charged count in the Information for Plaintiff’s criminal case,

State of Florida v. Richard Jay Dempsey, Case No. 052019MM023551AXXXXX.

(See id.; see Doc. 82, pp. 30–31).

Here, Plaintiff’s 42 U.S.C. § 1983 claim for false arrest is based on Plaintiff’s

allegations that Defendant made false statements in the probable cause affidavit.

(See Doc. 58, pp. 5–6). Accordingly, Magistrate Judge Hoffman Price correctly

4 The Court further highlights that Mr. Curtis’ affidavit fails to address any of the facts related

to obstruction that Plaintiff argues are in dispute. (See Doc. 85; Doc. 91, p. 28; Doc. 92, pp. 3,

7).

analyzed whether Defendant had probable cause to arrest Plaintiff pursuant to

Florida Statute § 843.02, one of the stated charges in the probable cause affidavit.

(See Doc. 91, pp. 22–33; Doc. 79-1); Stachel v. City of Cape Canaveral, 51 F. Supp.

2d 1326, 1331 (M.D. Fla. 1999) (“The claim for false arrest does not cast its primary

focus on the validity of each individual charge; instead we focus on the validity of

the arrest. If there is probable cause for any of the charges made . . . then the arrest

was supported by probable cause, and the claim for false arrest fails.” (quoting

Wells v. Bonner, 45 F.3d 90, 95 (5th Cir. 1995))).

Thus, considering Plaintiff’s § 1983 claim for false arrest centers on the

charges that Plaintiff was arrested for, Plaintiff’s objection to Florida Statute §

877.03─as a charged count in the post-arrest Information─is not relevant to the

analysis at hand. Consequently, Plaintiff’s objection regarding Florida Statute §

877.03 does not identify an adequate basis for this Court to overrule the Report.

C. Factual Objections

In the Report, Magistrate Judge Hoffman Price thoroughly addressed

Plaintiff’s various factual arguments from his Response. (See generally Doc. 91).

Plaintiff reasserts several of these factual arguments in his Objection.5

First, Plaintiff merely rehashes his perspective on how the subject incident

unfolded, without supporting evidence and without addressing its specificity or

5 Specifically, Plaintiff objects that he “never ran into their [the Roughton’s] golf cart.” (Doc. 92,

pp. 1, 3–4). Plaintiff also objects as to his specific location during Defendant’s investigation

and arrest of Plaintiff. (Id. at pp. 2–3, 5–8). Finally, Plaintiff objects that he was not “there”

to make contact with or to be separated from the Roughtons as provided in the probable cause

affidavit. (Id. at pp. 2–3).

impact on the analysis at hand.6 Second, Magistrate Judge Hoffman Price already

exhausted analysis of these arguments and concluded that there was insufficient

evidence to establish Plaintiff’s claim of false arrest.7

Accordingly, without more, Plaintiff’s factually based objections do not

identify an adequate basis to overrule the Report.

IV. CONCLUSION

For the reasons set forth herein, it is ORDERED AND ADJUDGED as

follows:

1. Plaintiff’s Objection (Docs. 92, 93, 94) to the Report is

OVERRULED;

2. Magistrate Judge Hoffman Price’s Report and Recommendation

(Doc. 91), filed on October 3, 2023, is ADOPTED and

CONFIRMED and made a part of this Order;

3. Defendant’s Motion for Final Summary Judgment (Doc. 77) is

GRANTED; and

4. The Clerk is DIRECTED to enter judgment in favor of Defendant and

against Plaintiff, terminate any other pending matters, and close

the file.

6 See id.

7 The Report thoroughly and correctly addressed the aforementioned factual arguments. (See

Doc. 91, pp. 12 n.6, 23 (discussing Plaintiff ramming into the golf cart); see id. at pp. 25–26,

29–30 (discussing Plaintiff’s location); see id. at pp. 29–30 (discussing Plaintiff’s

interpretation of “contact” and “separation”)).

DONE AND ORDERED in Orlando, Florida on December 18, 2023.

ce.

PAUL G.

UNITED STATES®ISTRICT JUDGE

Copies furnished to:

Counsel of Record

Unrepresented Parties