Gaston v. Lake County

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

OCALA DIVISION

ANGEL E. GASTON,

Plaintiff,

v. Case No: 5:23-cv-369-WFJ-PRL

LAKE COUNTY, et al.,

Defendants.

_______________________

ORDER

Before the Court is Plaintiff Angel E. Gaston’s Civil Rights Complaint (Doc. 1)

filed under 42 U.S.C. § 1983 and 28 U.S.C. § 1367. (Doc. 1). Plaintiff, proceeding pro

se, is currently housed in the Palm Beach County West Detention Center.

I. Statutory Screening of Prisoner Complaints

Pursuant to 28 U.S.C. § 1915A(a), federal courts are obligated to conduct an

initial screening of certain civil suits brought by prisoners to determine whether they

should proceed. Upon review, a court is required to dismiss a complaint (or any

portion thereof) in the following circumstances:

(b) Grounds for Dismissal.–On review, the court shall identify cognizable

claims or dismiss the complaint, or any portion of the complaint, if the

complaint–

(1) is frivolous, malicious, or fails to state a claim upon which relief

may be granted; or

(2) seeks monetary relief from a defendant who is immune from

such relief.

28 U.S.C. § 1915A(b). In addition, 28 U.S.C. § 1915(e) directs courts to dismiss actions

which are frivolous, malicious, fail to state a claim for relief, or seek monetary relief

against a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2). The Court

must read a plaintiff’s pro se allegations in a liberal fashion. Haines v. Kerner, 404 U.S.

519 (1972). Although federal courts give liberal construction to pro se pleadings, courts

“nevertheless have required them to conform to procedural rules.” Albra v. Advan, Inc.,

490 F.3d 826, 829 (11th Cir. 2007) (quotation omitted).

Federal Rule Civil Procedure 8 requires that a pleading contain “a short and

plain statement of the claim showing that the pleader is entitled to relief.” See Fed. R.

Civ. P. 8(a)(2); Mathew v. Paynter, 752 F. App'x. 740, 742 (11th Cir. 2018). There is no

required technical form, but “each allegation must be simple, concise, and direct.”

Fed. R. Civ. P. 8(d)(1). Each separate claim should be presented in a separate

numbered paragraph, with each paragraph “limited as far as practicable to a single set

of circumstances.” See Fed. R. Civ. P. 10(b). The allegations must also “give the

defendant fair notice of what the ... claim is and the grounds upon which it rests.” Bell

Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quotation omitted) (ellipses in

original).

With respect to whether a complaint “fails to state a claim on which relief may

be granted,” § 1915(e)(2)(B)(ii) mirrors the language of Federal Rule of Civil Procedure

12(b)(6), so courts apply the same standard in both contexts. Mitchell v. Farcass, 112

F.3d 1483, 1490 (11th Cir. 1997); see also Alba v. Montford, 517 F.3d 1249, 1252 (11th

Cir. 2008). “To survive a motion to dismiss, a complaint must contain sufficient factual

matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft

v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 570). “Labels and

conclusions” or “a formulaic recitation of the elements of a cause of action” that

amount to “naked assertions” will not do. Id. (quotations, alteration, and citation

omitted). Moreover, a complaint must “contain either direct or inferential allegations

respecting all the material elements necessary to sustain a recovery under some viable

legal theory.” Roe v. Aware Woman Ctr. For Choice, Inc., 253 F.3d 678, 683 (11th Cir.

2001) (quotations and citations omitted).

II. Complaint

On August 14, 2020, Plaintiff was arrested in Lake County, Florida. (Doc. 1 at

13). During his incarceration stemming from that arrest, Plaintiff was assigned Wanda

Greene, an attorney from the Office of the Public Defender, Fifth Judicial Circuit. See

id. at 13–14. Plaintiff alleges that he was unable to communicate with Ms. Greene but

was able to post bond and reported to his probation officer. Id. at 13. Around two-

weeks later, Plaintiff was re-arrested for violating his probation out of Palm Beach

County. Id. Plaintiff hired private counsel for the Palm Beach County case. Id.

Plaintiff’s private attorney attempted to contact Ms. Greene, but Ms. Greene “refused

and/or neglected to take or return his phone calls and e-mails.” Id. After 43 days of

incarceration with no communication from Ms. Greene, Plaintiff entered a plea in the

Palm Beach County case and received 2 additional years of probation. Id. After being

released from Palm Beach County, Plaintiff attempted to meet with Ms. Greene in-

person, but she told him she was unavailable at that time, but she would schedule a

future appointment. Id. at 14.

On October 27, 2020, Plaintiff was arrested in Lake County on new charges. Id.

at 14. Plaintiff was assigned Andrew Barthelemy from the Public Defender’s Office.

Id. Plaintiff was unable to communicate with Mr. Barthelemy, did not attend a hearing

on a motion to revoke bond, and disagreed with the strategy of getting a mental health

evaluation. Id. Plaintiff claims that Mr. Barthelemy and Donna Bonifacino, an

investigator from the Public Defender’s Office, never came to the jail “to consult,

investigate, or legally advise” him. Id. at 15.

Plaintiff claims that while he was housed at the Lake County Detention Center

(“LCDC”) he was repeatedly denied access to the law library because he had counsel.

Deputy Helton advised Plaintiff that “only pro se detainees were permitted access to

legal materials, printing, and copying; once per week for only one hour.” Id. at 16.

Deputy Helton allegedly told Plaintiff that this policy was put in place by Derick

Shroth, legal counsel for the Lake County Sheriff’s Department, approved by Sheriff

Grinnell, and enforced by Captain Edwards and Lt. Weddle. Id. Plaintiff claims that

he could not dismiss his counsel because he could not access the proper forms to file

with the court. Id. at 16–17.

Plaintiff disagreed with the strategy his counsel were implementing and sent

multiple filings to different judges seeking assistance. Id. at 17–26. In December 2021,

Benjamin Ayris replaced Ms. Greene as Plaintiff’s counsel. Id. at 26. Plaintiff claims

Mr. Ayris, like Ms. Greene, refused to meet with him and failed to “form a proper

defense strategy.” Id. at 27. In February 2022, Plaintiff moved to dismiss Mr. Ayris.

Id. at 28. In March 2022, Mr. Ayris withdrew due to a conflict of interest, and Plaintiff

proceeded pro se with standby counsel from the Office of Criminal Conflict and

Regional Counsel. Id.

Now proceeding pro se, Plaintiff sought additional time, beyond the allowed one

hour a week, at the jail’s law library. Id. at 29. Plaintiff’s verbal and written grievances

were denied. Id. In September 2022, Plaintiff “submitted a civil complaint that

involved Lake County and several detention deputies to be copied” and for the first

time, he was charged a copy fee of $1.00 per page. Id. at 33. Plaintiff claims this was

in retaliation to him filing a complaint against the conditions of his confinement. Id.

Plaintiff further claims that he “submitted multiple motions to be heard by the

Court, yet the Lake County Clerk of Court had refused and/or neglected to schedule

my motions on the hearing docket.” Id. at 35. Plaintiff claims that Gary Cooney, the

Lake County Clerk of Court, had a policy for setting hearings that did “not give equal

access to the Courts for me and other detainee pro-se litigants.” Id. at 35. Due to this

policy, Plaintiff claims he suffered excessive delays in accessing the Courts and his

incarceration was unnecessarily extended. Id.

In January 2023, Deputy Knight “removed my access to legal materials as

punishment for disputing and grieving her refusals to copy and mail out my legal

documents to the Court.” Id. at 36. When Plaintiff grieved this “blatent [sic]

retaliation,” the grievances were declared “invalid” and Deputy Knight’s actions were

supported by Sergeant Dolen and Lieutenant Weddle. Id.

On April 4, 2023, the “prosecution dropped the criminal mischief charge” and

he was transported back to Palm Beach County for the violation of probation case. Id.

Plaintiff claims he was detained for 32 months on the Lake County charge. Id.

A. Defendants

In his Complaint, Plaintiff names seventeen total Defendants. The Defendants

can be divided into three groups:

Public Defender’s Office Defendants – Office of the Public Defender, Fifth

Judicial Circuit; Andrew L. Barthelemy (Attorney); Wanda T. Greene (Attorney);

Benjamin Ayris (Attorney); Donna Bonifacino (Investigator).

Lake County Defendants – Lake County; Peyton C. Grinnell (Sheriff of Lake

County); Gary J. Cooney (Lake County Clerk of Court); and Derick Shroth (Attorney,

Lake County Sheriff’s Office).

LCDC Defendants – Edwards (Captain); Weddle (Lieutenant); Dolen

(Sergeant); Knight (Deputy); Helton (Deputy); Malia (Deputy); Mitchell (Deputy);

and Unknown Deputy #1.

III. Analysis

“In order to prevail on a civil rights action under § 1983, a plaintiff must show

that he or she was deprived of a federal right by a person acting under color of state

law.” Griffin v. City of Opa-Locka, 261 F.3d 1295, 1303 (11th Cir. 2001). Section 1983

“requires proof of an affirmative causal connection between the official’s acts or

omissions and the alleged constitutional deprivation.” Zatler v. Wainwright, 802 F.2d

397, 401 (11th Cir. 1986). The Eleventh Circuit has held that § 1983 claimants must

allege facts to support their claims with some specificity. Wilson v. Strong, 156 F.3d

1131, 1135 (11th Cir. 1998).

A. Public Defender’s Office Defendants

Plaintiff sues the Public Defender’s Office Defendants, alleging they provided

him ineffective assistance of counsel in violation of his Sixth and Fourteenth

Amendment rights. (Doc. 1 at 7, 13–28, 30, 32–34, 37–51). Plaintiff also brings four

state tort claims against these Defendants: legal malpractice, breach of fiduciary duty,

negligence, and civil conspiracy. Id. at 8–9. Because Plaintiff’s claims are based on the

performance of the Public Defender’s Office in their representation of him, he fails to

state a claim against them. See Polk Cnty. v. Dodson, 454 U.S. 312, 325 (1981) (“[A]

public defender does not act under color of state law when performing a lawyer’s

traditional functions as counsel to a defendant in a criminal proceeding.”); Holt v. Crist,

233 F. App’x 900, 903 (11th Cir. 2007) (stating that defense attorneys are not state

actors who can be held liable under § 1983). Plaintiff’s § 1983 claims against the Public

Defender’s Office Defendants are due to be dismissed with prejudice.

“The dismissal of a plaintiff's underlying federal question claim does not deprive

the court of supplemental jurisdiction over the remaining state law claims.” Fisher v.

SP One, Ltd., No. 8:11-cv-1889, 2013 WL 268684, at *10 (M.D. Fla. Jan. 24, 2013)

(internal quotation omitted). Instead, pursuant to 28 U.S.C. § 1367(c), “the [c]ourt has

the discretion to decline to exercise supplemental jurisdiction over non-diverse state

law claims, where the court has dismissed all claims over which it had original

jurisdiction, but the court is not required to dismiss the case.” Id. (citing Baggett v. First

Nat'l Bank of Gainesville, 117 F.3d 1342, 1352 (11th Cir. 1997)). “Where § 1367(c)

applies, considerations of judicial economy, convenience, fairness, and comity may

influence the court's discretion to exercise supplemental jurisdiction.” Baggett, 117

F.3d at 1353.

Although a district court may choose to exercise supplemental jurisdiction and

retain a case, “state courts, not federal courts, should be the final arbiters of state law.”

Ingram v. Sch. Bd. of Miami–Dade Cnty., 167 F. App'x 107, 108 (11th Cir. 2006); see also

Hicks v. Moore, 422 F.3d 1246, 1255 n. 8 (11th Cir. 2005) (“Certainly, if the federal

claims are dismissed before trial, ... the state claims should be dismissed as well.”)

(internal quotation and citation omitted); Raney v. Allstate Ins. Co., 370 F.3d 1086,

1088–89 (11th Cir. 2004) (“We have encouraged district courts to dismiss any

remaining state claims when, as here, the federal claims have been dismissed prior to

trial.”).

“The decision to exercise supplemental jurisdiction over pendant state claims

rests within the discretion of the district court.” Raney, 370 F.3d at 1088–89. Pursuant

to 28 U.S.C. § 1367, the Court declines to exercise supplemental jurisdiction over

Plaintiffs' state law claims against the Public Defender’s Office Defendants.

B. Lake County Defendants

1. Lake County and Sheriff Grinnell

A local government is liable under § 1983 “when execution of a government's

policy or custom, whether made by its lawmakers or by those whose edicts or acts may

fairly be said to represent official policy, inflicts the injury.” Monell v. Dep't of Soc. Servs.,

436 U.S. 658, 694 (1978). The official policy or custom may be established by

identifying an officially promulgated policy or by identifying an unofficial policy

shown by persistent and widespread practice. McDowell v. Brown, 392 F.3d 1283, 1290

(11th Cir. 2004). Generally, “random acts and isolated incidents” are not enough to

establish municipal or governmental liability pursuant to a policy, custom, or practice.

Church v. City of Huntsville, 30 F.3d 1332, 1345 (11th Cir. 1994) (internal quotation

marks omitted).

To attribute liability to Lake County and Sheriff Grinnell under § 1983, Plaintiff

must demonstrate that Lake County and Sheriff Grinnell had in place an official policy

or custom that was “the moving force of the constitutional violation.” Vineyard v. Cnty.

of Murray, 990 F.2d 1207, 1211 (11th Cir. 1993) (internal quotation marks omitted).

With regard to Plaintiff's claims against Lake County and Sheriff Grinnell under §

1983, Plaintiff asserts, in a conclusory fashion, that the acts of the officers, agents, and

employees of Lake County and/or Sheriff Grinnell were taken pursuant to an official

policy, practice, or custom, but he fails to bolster his conclusion with any factual

allegations. The complaint contains nothing more than allegations of isolated

wrongdoings. Accordingly, Plaintiff has failed to establish a prima facie case under §

1983 against Lake County and Sheriff Grinnell and his claims should be dismissed.

Alternately, it appears Plaintiff names Sheriff Grinnell based on the supervisory

nature of his position–Lake County Sheriff–without alleging facts that he has any

personal involvement in violating his constitutional rights. Public officials in

supervisory positions cannot simply be held vicariously liable for the acts of their

subordinates. Robertson v. Sichel, 127 U.S. 507 (1888); Byrd v. Clark, 783 F.2d 1002,

1008 (11th Cir. 1986). Nor can liability be predicated solely upon the doctrine of

respondeat superior in a § 1983 action. See Monell, 436 U.S. 658; Vineyard, 990 F.2d 1207.

If a plaintiff sues a county or county agency, there must be proof that the alleged

injuries resulted from an official custom, policy, or practice. Monell, 436 U.S. at 694;

Mandel v. Doe, 888 F.2d 782 (11th Cir. 1989). The plaintiff bears the burden of

establishing a causal link between a government policy or custom and the injury which

is alleged. Byrd, 783 F.2d at 1008 (citing Monell, supra).

Plaintiff does not allege that Sheriff Grinnell personally participated in any

wrongdoing against him. As noted, above, Plaintiff has failed allege and establish a

series of incidents or a pattern of misconduct necessary to establish a policy or custom.

Accordingly, Plaintiff has failed to establish a prima facie case under § 1983 against

Sheriff Grinnell and his claims should be dismissed.

2. Derick Shroth

Plaintiff names Derick Shroth, in his capacity as the legal counsel for the Lake

County Sheriff’s Office. (Doc. 1 at 3). Plaintiff sues Mr. Shroth for creating a policy

that only allowed pro se detainees to visit the law library for one hour, one time a week.

Id. at 16. Plaintiff claims that this policy deprives him access to the courts in violation

of his Fourteenth Amendment.

Here, Plaintiff has failed to state a plausible access to courts claim against Mr.

Shroth. Prisoners have a constitutional right of access to the courts. Bounds v. Smith,

430 U.S. 817, 828 (1977). That right may be met “by providing prisoners with adequate

law libraries or adequate assistance from persons trained in the law.” Id. at 828. When

interpreting the right of access to courts outlined in Bounds, the Eleventh Circuit has

held that access to additional legal material is not mandatory where legal counsel is

provided as an alternative. Smith v. Hutchins, 426 F. App'x 785, 789 (11th Cir. 2011)

(citing Hooks v. Wainwright, 775 F.2d 1433, 1435 (11th Cir. 1985) (“concluding state

need not provide prisoners assistance of counsel in addition to libraries for purpose of

filing collateral suits, stating, ‘it is noteworthy that Bounds refers to law libraries or

other forms of legal assistance, in the disjunctive, no fewer than five times.’”)). Further,

“[b]ecause Bounds addressed only the issue of access to courts in the context of inmates

filing civil actions or habeas petitions for post-conviction relief, some courts have held

that Bounds has no applicability to defendants representing themselves in criminal

proceedings.”1 Smith, 426 F. App'x at 789 n.5.

1 In United States v. Chatman, 584 F.2d 1358 (4th Cir. 1978), the court explained that the right

of access to courts for pretrial detainees seeking assistance with a pending criminal action is

Rather, where a pretrial detainee claims that his lack of access to legal material

has hindered his ability to represent himself in a pending criminal proceeding, the

constitutional right of access to courts may be satisfied if the plaintiff has been provided

the option of legal counsel and his decision to represent himself was voluntarily made.

Id. at 789 (citing Edwards v. United States, 795 F.2d 958, 961, n. 1, 3 (11th Cir. 1986))

(stating that when counsel is offered, the alternative of other legal assistance is not

mandatory, citing Bounds, 430 U.S. at 828); see also Degrate v. Godwin, 84 F.3d 768, 769

(5th Cir. 1996) (agreeing with circuits holding that a defendant who rejects court

appointed counsel has no constitutional right to access a law library in preparing a pro

se defense at trial); Daker v. Warren, 660 F. App'x 737, 740 (11th Cir. 2016) (reiterating

that under Eleventh Circuit precedent access to a law library is not mandatory for a

pro se defendant when counsel has been offered); Singleton v. FS No. 7084, No. 3:11-cv-

70-J-12TEM, 2011 WL 617942, at *3 (M.D. Fla. Feb. 15, 2011) (holding there is no

based on the Sixth Amendment right to counsel. Id. at 1360. The court explained the

following:

[Bounds] held that “the fundamental constitutional right of access to the courts

requires prison authorities to assist inmates in the preparation and filing of

meaningful legal papers by providing prisoners with adequate law libraries or

adequate assistance from persons trained in the law.” 430 U.S. at 828. Bounds,

of course, has no direct application to defendant. He was accused of [a] crime

and had an absolute right to counsel, which he validly waived; he had no

present thought of pursuing post-conviction relief. But, even so, we do not read

Bounds to give an option to the [p]risoner as to the form in which he elects to

obtain legal assistance. The option rests with the government which has the

obligation to provide assistance as to the form which that assistance will take.

Thus, to the extent that it may be said that Bounds has any application to the

instant case, the United States satisfied its obligation under the Sixth

Amendment when it offered defendant the assistance of counsel which he

declined. We so hold. Cf. United States v. West, 557 F.2d 151 (8th Cir. 1977).

constitutional right to access legal materials in preparing a pro se defense in a criminal

case when counsel has been offered and the plaintiff has elected to represent himself).

Here, the Court need not decide whether Bounds applies to pretrial detainees or

whether Plaintiff has a right to access additional legal material, because the

requirements of Bounds are satisfied if Plaintiff has the option to receive assistance from

court-appointed counsel, but he is voluntarily proceeding pro se. See Smith, 426 F.

App'x at 790 n.5 (“Regardless of whether Bounds applies to pretrial detainees, we

conclude in this case Bounds does not require access to a law library where Smith had

the option of assistance of appointed counsel.”). Plaintiff's allegations show that

Plaintiff had the option to be represented by court-appointed counsel in his pending

state court criminal case, but he has declined that assistance so he could represent

himself. (Doc. 1 at 28).

Now, Plaintiff complains about the difficulty of obtaining legal material while

housed in a pretrial detention facility although he voluntarily declined court-appointed

counsel who has access to legal material. These facts do not sufficiently set forth a

constitutional claim. See Smith, 426 F. App'x at 789–90, 790 n.5 (“[b]ecause Smith

voluntarily and intelligently waived his right to counsel, Smith had no constitutional

right to access ... other legal resources during his pre-trial detention” and the option of

appointed counsel satisfied the requirements of Bounds.); Singleton, 2011 WL 617942,

at *3 (“the offer of court-appointed counsel satisfies the state's obligation to provide

meaningful access to the courts.”). Thus, Plaintiff has failed to state a plausible access

to courts claim against Mr. Shroth.

3. Gary J. Cooney

Plaintiff names Gary J. Cooney in his capacity as the Lake County Clerk of

Court. (Doc. 1 at 3). Plaintiff sues Mr. Cooney due to his policy of “not providing the

‘Judge’s Review forms’ or the ‘Clerk’s worksheets’ to any detainee (whether pro-se or

represented by counsel)” and claims his process for setting hearing dates does not give

equal access to the courts for pro se detainee litigants. Id. at 34–35.

Judges are absolutely immune from civil liability under 42 U.S.C. § 1983 for

any acts performed in their judicial capacity, providing such acts are not done in clear

absence of all jurisdiction. Bolin v. Story, 225 F.3d 1234, 1239 (11th Cir. 2000) (citing

Stump v. Sparkman, 435 U.S. 349, 356–57 (1978); Simmons v. Conger, 86 F.3d 1080,

1084–85 (11th Cir. 1996)). “This immunity applies even when the judge's acts are in

error, malicious, or were in excess of his or her jurisdiction.” Id. (citing Stump, 435

U.S. at 356). Similarly, non-judicial officials, including clerks of court, are entitled to

absolute immunity for “duties that are integrally related to the judicial process.”

Jenkins v. Clerk of Court, 150 F. App’x 988, 990 (11th Cir. 2005). “Absolute quasi-

judicial immunity for nonjudicial officials is determined by a functional analysis of

their actions in relation to the judicial process.” Id.

Mr. Cooney is entitled to absolute quasi-judicial immunity. The decisions

related to scheduling hearings and providing Clerk-generated forms are directly related

to the judicial process. Therefore, the Clerk is immune and Plaintiff has failed to state

a claim.

C. LCDC Defendants

Plaintiff sues Defendants Captain Edwards, Lt. Weddle, Sgt. Dolen, and

Deputies Knight, Helton, Malia, and Mitchell for depriving him access to the courts

in violation of the Fourteenth Amendment and for retaliation in violation of the First

Amendment.

1. Access to Courts

Plaintiff claims these Defendants violated his Fourteenth Amendment rights by

enforcing LCDC’s policy regarding the law library. (Doc. 1 at 51–52). As discussed,

above, the policy did not violate Plaintiff’s Fourteenth Amendment rights. Therefore,

enforcing this policy did not violate Plaintiff’s constitutional rights. Thus, Plaintiff has

failed to state a plausible access to courts claim against the LCDC Defendants.

2. Retaliation

Prison officials violate a prisoner's “First Amendment rights to free speech and

to petition the government” by punishing that prisoner “for filing a grievance

concerning the conditions of his imprisonment.” Douglas v. Yates, 535 F.3d 1316, 1321

(11th Cir. 2008) (quoting Boxer X v. Harris, 437 F.3d 1107, 1112 (11th Cir. 2006)). To

prevail on such a claim, a plaintiff must satisfy three elements: “first, that his speech

or act was constitutionally protected; second, that the defendant's retaliatory conduct

adversely affected the protected speech; and third, that there is a causal connection

between the retaliatory actions and the adverse effect on speech.” Id. (quoting Bennett

v. Hendrix, 423 F.3d 1247, 1250 (11th Cir. 2005)).

Plaintiff claims that Deputy Mitchell and Deputy Malia retaliated against him

in violation of his First Amendment rights. (Doc. 1 at 53). Plaintiff states that prior to

September 9, 2022, he had never been charged for making copies of legal documents.

Id. at 33. However, after he submitted a civil complaint against several detention

deputies, Deputy Mitchell charged Plaintiff’s trust account for copying a 78-page

complaint at the rate of $1.00 per page. Id. Roughly a month later Deputy Malia

refused to make copies of Plaintiff’s legal documents. Id. Plaintiff claims these acts

were in retaliation to him naming LCDC staff members in a lawsuit. Id.

Next, Plaintiff claims Deputy Knight “removed my access to legal materials as

punishment for disputing and grieving her refusals to copy and mail out legal

documents to the Court.” (Doc. 36). He further claims Sgt. Dolen and Lt. Weddle

“supported her actions” by “declar[ing] my grievances invalid.” Id.

Plaintiff’s allegations against Deputies Mitchell, Malia, and Knight, accepted as

true, state a claim for retaliation under the First Amendment. However, the rejection

of a grievance is not an actionable adverse action for retaliation purposes.2 Therefore,

Plaintiff has failed to state a claim against Sgt. Dolen and Lt. Weddle.

2 See Gonzalez v. Bendt, 971 F.3d 742, 745 (8th Cir. 2020); Owens v. Coleman, 629 F. App’x 163,

167 (3d Cir. 2015); Martin v. Woodford, 2009 WL 30300, at *6 (E.D. Cal. Jan. 6, 2009)

(adopted in full Feb. 27, 2009) (“Merely by [sic] ruling against Plaintiff in a grievance

procedure is not sufficient to allege an adverse action.”); Burgos v. Canino, 641 F. Supp. 2d

443, 455 (E.D. Pa. 2009) (“The mere denial of grievances does not rise to the level of adverse

action sufficient to deter a person of ordinary firmness from exercising his constitutional

rights.”); Frazier v. Zavaras, 2011 WL 4537001, at *9 (D. Colo. Sept. 30, 2011) (plaintiff's

retaliation claims failed “because denial of an administrative grievance is not an ‘adverse

action’”); Jenkins v. Tennessee Dept. of Corr., 2015 WL 1893378, at *6 (M.D. Tenn. Apr. 27,

2015) (adopted in full June 1, 2015) (improper disqualification of a third level appeal is de

IV. Conclusion

Accordingly, it is hereby

ORDERED:

1. Plaintiff’s § 1983 claims against Defendants Office of the Public

Defender, Fifth Judicial Circuit, Andrew L. Barthelemy, Wanda T.

Greene, Benjamin Ayris, and Donna Bonifacino are DISMISSED with

prejudice. The Court further declines to exercise supplemental

jurisdiction over Plaintiffs' state law claims against these defendants.

2. Plaintiff’s claims against Lake County, Peyton C. Grinnell, Gary J.

Cooney, Derick Shroth, Captain Edwards, Lt. Weddle, Sgt. Dolen,

Deputy Helton and Unknown Deputy #1 are DISMISSED without

prejudice for failure to state a claim.

3. The claims for First Amendment retaliation against Deputies Mitchell,

Malia, and Knight remain pending.

4. To the extent that Plaintiff wishes to cure the deficiencies of his

Complaint, he may file an Amended Complaint on the standard Civil

Rights Complaint form by January 26, 2024.

minimis and would not deter a prisoner of “ordinary firmness” from pursing an administrative

grievance); Stone v. Curtin, 2011 WL 3879505, at *4 (W.D. Mich. Aug. 31, 2011) (failure to

process grievance does not demonstrate “adverse action that would deter a person of ordinary

firmness from continuing to engage in protected conduct”); Crenshaw v. Herbert, 445 F. Supp.

2d 301, 303 n. 1 (W.D.N.Y. 2006) (opining without deciding as a matter of law that denial of

grievances would be de minimis and would not constitute adverse action).

DONE and ORDERED in Tampa, Florida on January 4, 2023.

WILLIAM F. ca

UNITED STATES DISTRICT JUDGE

Copies furnished to:

Pro Se Party

18