Lewis v. Reyes

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

OCALA DIVISION

JAMES F. LEWIS,

Plaintiff,

v. Case No: 5:22-cv-650-JA-PRL

KEITH REYES, KARL MARKLUND,

GREGG DUDLEY and LAKE

COUNTY FLORIDA SCHOOL

DISTRICT,

Defendants.

REPORT AND RECOMMENDATION1

Merely because a building or property is public doesn’t mean that a citizen can have

access to it for any reason and at any time. Certainly, a person couldn’t demand entry to a

court closed on the weekend or in the middle of the night. In the same way, the Plaintiff

couldn’t demand access to the local elementary school gymnasium merely because he wanted

to play basketball. Yet, here, that is effectively Plaintiff’s theory. Plaintiff believes, “if a school

is a public school, I have a right to be there.” The law, however, doesn’t provide for that. To

the contrary, Florida law provides for school officials, such as a school principal, to be able

to control who has access to the campus of a public school. Florida law specifically prohibits

any person without legitimate business on the campus from entering or remaining on school

property, and empowers the principal of a public school, or his or her designee, to direct them

1 Within 14 days after being served with a copy of the recommended disposition, a party may

file written objections to the Report and Recommendation’s factual findings and legal conclusions.

See Fed. R. Civ. P. 72(b)(3); Fed. R. Crim. P. 59(b)(2); 28 U.S.C. § 636(b)(1)(B). A party’s failure to

file written objections waives that party’s right to challenge on appeal any unobjected-to factual finding

or legal conclusion the district judge adopts from the Report and Recommendation. See 11th Cir. R.

3-1.

to leave. Fla. Stat. § 810.097. Violation of these provisions constitutes trespass upon the

grounds of a school facility and is first degree misdemeanor. Fla. Stat. § 810.097.

This case arises out of an encounter at The Villages Elementary School in Lady Lake,

Florida, involving a school principal overseeing dismissal of students at the end of the school

day, law enforcement officers, and Plaintiff James Lewis, a self-proclaimed “citizen

journalist” who was intent upon videotaping activity near the school, monitoring the work

performance of public employees, and gaining access to the campus. Not surprisingly, a

confrontation ensued and ended with Plaintiff being arrested at the request of the school

principal for Trespassing Upon Grounds of a Public School Facility in violation of Fla. Stat.

§ 810.097. Plaintiff contends that the arrest was unlawful and violated his constitutional

rights. Plaintiff is wrong.

Upon referral, this matter is before me for consideration of motions to dismiss filed on

behalf of each of the defendants, including Sergeant Keith Reyes and Officer Karl Marklund2

of the Lady Lake Police Department; Gregg Dudley, principal of The Villages Elementary

School; and the Lake County Florida School District. (Docs. 12, 13 & 15). Plaintiff has filed

responses in opposition to the motions to dismiss. (Docs. 19, 20, 22 & 26). Upon due

consideration and for the reasons explained below, I find that Plaintiff’s claims are entirely

without merit and recommend that they be dismissed.

Defendants have also filed a motion requesting that the Court take judicial notice of

documents from a related state court proceeding, and Plaintiff has filed a response in

opposition. (Docs. 11 & 20). Upon consideration, and because the motions to dismiss are due

2 Although Plaintiff has used a variety of spellings, Defendants note that the correct spelling

of Officer Karl Marklund’s name is “Marklund.” (Doc. 15 at 1 n.1).

to be granted irrespective of the issue of judicial notice, Defendants’ motion for judicial notice

(Doc. 11) is due to be denied without prejudice as moot.

I. BACKGROUND

This case arises from an incident that occurred at and near The Villages Elementary

School in Lady Lake on May 13, 2021. It appears that Plaintiff had a grievance with the traffic

caused when students were released at the end of the school day at The Villages Elementary

School.

A. PLAINTIFF’S ALLEGATIONS3

According to Plaintiff’s complaint, he intended to video record and protest heavy

traffic congestion and “view the public officials’ work performances while school was in the

dismissal process.” (Doc. 1-1 at 2). Initially, Plaintiff was walking and standing on the public

sidewalk “just outside the school” and recording traffic using his cell phone. (Doc. 1-1 at 2).

Eventually, Plaintiff was approached by Gregg Dudley, the school principal, who asked “if

he could help [plaintiff].” (Doc. 1-1 at 2). Sgt. Keith Reyes of the Lady Lake Police

Department was also present. He asked Plaintiff what his purpose was, and Plaintiff replied

that he is “a citizen journalist engaged in Constitutionally protected activities.” (Doc. 1-1 at

3).

Plaintiff alleges that he informed Dudley he would be back the next day to do a public

records request. Dudley replied that all public records requests must be made at the Lake

County School District Office in Tavares. Plaintiff informed Dudley that the records

requested were “at this school location,” and Dudley was “adamant” that the request must

3 These background facts are taken directly from Plaintiff’s complaint (Doc. 1) and are taken

as true for purposes of these motions to dismiss.

be made at the District Office in Tavares.

Plaintiff contends that Dudley then stood at the entrance and exit of the dismissal

traffic area. Soon thereafter, Plaintiff “enter[ed] the public area of campus.” (Doc. 1-1 at 3).

Dudley questioned Plaintiff about his intentions, and Plaintiff replied that he was “there to

do a Public Records Request for the Material Safety Data Sheets (MSDS) at the school.”

(Doc. 1-1 at 3). Dudley repeated that public records requests must be made in the District

Office in Tavares.4 Plaintiff contends that he was “unlawfully bullied and intimidated by

Dudley and Reyes while engaging in Constitutionally protected activities resulting in Plaintiff

being unlawfully trespassed from public property.” (Doc. 1-2 at 4).

Plaintiff further alleges he was “informed that he [was] being trespassed.” Reyes asked

Plaintiff for identification, but Plaintiff refused. Reyes warned him that he would be charged

with trespassing. Reyes continued to request Plaintiff’s name and told him that Dudley

wanted him “trespassed” because he had been on school property. Plaintiff contends that

Reyes told him to go back on school property and he would be arrested for trespassing.

Plaintiff then observed Reyes conferring with an officer who was later identified as the

Deputy Chief of the Lady Lake Police Department. Meanwhile, Plaintiff “inform[ed] Dudley

who is still standing on the public easement opposite across the road from the school that [he]

would see him tomorrow.” (Doc. 1-1 at 5). Plaintiff also reminded Dudley of his public

records request. Plaintiff then left the “designated school zone.” (Doc. 1-1 at 5).

A few minutes later, Reyes pulled up in his police car, ordered Plaintiff to put his hands

behind his back, and then handcuffed Plaintiff. Reyes informed him that he was under arrest

4 Plaintiff’s complaint contains other allegations regarding the alleged validity of his public

records request, such as that Dudley is the custodian of records at the school. Those allegations are

only marginally relevant to the motions currently before the Court.

for trespassing. (Doc. 1-2 at 5). A few seconds later, Plaintiff told Reyes that the handcuffs

were too tight. Reyes replied, “I don’t care,” and insisted “they’re ok, they’re ok.” (Doc. 1-1

at 5). Plaintiff was transported the Lake County Jail by Officer Karl Marklund. Plaintiff

alleges that he informed Officer Marklund seven times that the handcuffs were “painfully

tight,” but that the officer did nothing to alleviate the pain. (Doc. 1-1 at 6).

B. VIDEO FOOTAGE

Plaintiff has also filed a video containing footage filmed by him on the day of the

incident. Generally, a court may consider documents and exhibits attached to the complaint

where those attachments are undisputed in their authenticity and central to the claims.5

See Arthur v. Thomas, 674 F.3d 1257, 1265 (11th Cir. 2012) (collecting cases); see also Ferguson

v. Dunn, No. 1:16-v-00272, 2018 WL 2656990, *1 n.1 (E.D. Tex. Apr. 27, 2018)

(video disc attached to complaint considered part of plaintiff's pleadings).

Upon review, the Court finds the video footage generally consistent with the

allegations of the complaint, with the important caveat that the video depicts far more detail

than described in the complaint. For example, the video depicts events leading up to the

incident, including Plaintiff confronting a police officer directing traffic at the school about

whether the use of his emergency lights was proper, Plaintiff conspicuously filming cars in the

school’s carline, Plaintiff confronting parents in the car pickup line, Plaintiff being confronted

by parents who believed or were concerned that he was filming their children, and Plaintiff

5 It seems that Defendants may not be aware that Plaintiff filed the video footage and that it is

part of the record in this case. In Reyes and Marklund’s motion to dismiss, they note that “[i]t appears

Plaintiff may have tried to file the videotape with the Court, but the docket does not reflect that it

was.” (Doc. 15 at 4 n.2) The docket reflects, however, that the video footage was filed together with

Plaintiff’s complaint. The docket entry states, “CD of video filed separately.” (Doc. 1). Plaintiff also

clearly references the video and its content throughout his compliant. As explained herein, the

undersigned has considered the video footage filed by Plaintiff.

exchanging words with law enforcement, Principal Dudley, and others.6

Most notably, the video plainly depicts Plaintiff entering school property and engaging

in an exchange with both Principal Dudley and Sgt. Reyes. During that exchange, Principal

Dudley repeatedly directed Plaintiff to the District Office to make public records requests.

Following that instruction, Plaintiff remained on campus. Meanwhile, Dudley asked him to

leave more than eight times. Throughout the incident, Plaintiff’s demeanor was

confrontational and belligerent. Despite being asked to state his business, Plaintiff did not

appear to have a legitimate basis for being on school property beyond his purported desire to

make a public records request regarding Material Safety Data Sheets. Indeed, as the entirety

of the video footage reveals, it appears that reason was little more than a guise for Plaintiff to

attempt to gain access to school property as part of his further attempt to play “gotcha” with

school officials regarding policy matters.

C. CLAIMS ALLEGED

Plaintiff’s complaint alleges the following claims: Count I - arrest without probable

cause under 42 U.S.C. § 1983 against Principal Gregg Dudley; Count II - false arrest/arrest

without probable cause/false imprisonment, fabricating evidence and excessive force under §

1983 against Sgt. Reyes and Officer Marklund; Count III - failure to train or supervise

Principal Gregg Dudley of his duties as records custodian resulting in an unconstitutional

official policy enacted toward Plaintiff in violation of § 1983 against the Lake County School

District; and Count IV – First Amendment Retaliation against all Defendants. Plaintiff seeks

6 The entirety of the video footage provides context for Plaintiff’s claims; however, the

interactions between Plaintiff, Sgt. Reyes, and Principal Dudley begin escalating around 21:00 on the

video and escalate further at 27:00. Plaintiff can be plainly seen entering school property at 28:45, and

immediately asking “Hey, this is public property, right?” to which Sgt. Reyes immediately replies,

“No, no, no, no, this is school property.” The most relevant portion of the video follows immediately

thereafter and depicts Dudley repeatedly requesting that Plaintiff leave the school property.

at least $200,000 in compensatory damages and at least $1.5 million in punitive damages.

II. LEGAL STANDARD

The bare minimum a plaintiff must set forth in his complaint is found in Fed. R. Civ.

P. 8. Under Rule 8, “[a] pleading that states a claim for relief must contain . . . a short and

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

8(a)(2). The United States Supreme Court has explained, in Ashcroft v. Iqbal, 556 U.S. 662

(2009) and Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007), that while particularity is not

required under Fed. R. Civ. P. 8, as it is under Fed. R. Civ. P. 9, “[a] pleading that offers

‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not

do.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). Instead, “[t]o 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.’” Id. (quoting Twombly, 550 U.S. at 570).

A claim is plausible on its face where “the plaintiff pleads factual content that allows

the court to draw the reasonable inference that the defendant is liable for the misconduct

alleged.” Iqbal, 556 U.S. at 678. Plausibility means “more than a sheer possibility that a

defendant has acted unlawfully.” Id. “Where a complaint pleads facts that are ‘merely

consistent with’ a defendant’s liability, it ‘stops short of the line between possibility and

plausibility of entitlement to relief.’” Id. (quoting Twombly, 550 U.S. at 557) (internal

quotation marks omitted). In short, to survive a motion to dismiss a plaintiff must allege

something more “than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Id.

(citing Twombly, 550 U.S. at 555).

The Eleventh Circuit utilizes a two-pronged approach in its application of the holdings

in Iqbal and Twombly. First, the court will “eliminate any allegations in the complaint that are

merely legal conclusions.” Am. Dental Ass’n v. Cigna Corp., 605 F.3d 1283, 1290 (11th Cir.

2010). Then, “where there are well-pleaded factual allegations,” the court will “‘assume their

veracity and then determine whether they plausibly give rise to an entitlement to relief.’” Id.

(quoting Iqbal, 556 U.S. at 679).

In applying this two-step approach to determine the complaint’s sufficiency under

Rule 8 (and in turn the plausibility of the claims), the Eleventh Circuit limits its “consideration

to the well-pleaded factual allegations, documents central to or referenced in the complaint,

and matters judicially noticed.” La Grasta v. First Union Sec., Inc., 358 F.3d 840, 845 (11th Cir.

2004). Further, the Court can infer “‘obvious alternative explanations,’ which suggest lawful

conduct rather than the unlawful conduct the plaintiff would ask the court to infer.” Am.

Dental Ass’n, 605 F.3d at 1290 (quoting Iqbal, 556 U.S. at 682) (brackets omitted). Finally, a

complaint is also subject to dismissal under Rule 12(b)(6) “when its allegations on their fact,

show that an affirmative defense bars recovery on the claim.” Cottone v. Jenne, 326 F.3d 1352,

1357 (11th Cir. 2003).

III. DISCUSSION

The Court will first address the Defendants’ motions to dismiss, and then will address

the motion for judicial notice.

A. ARREST WITHOUT PROBABLE CAUSE AGAINST REYES,

MARKLUND, AND DUDLEY

The Court begins with the Constitutional claims alleged under 42 U.S.C. § 1983. Any

person who, under color of state law, “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.” 42 U.S.C. § 1983. A plaintiff may recover for a violation of his

constitutional rights pursuant to § 1983 under a theory of individual liability or governmental

liability. It is well established that government agents are “shielded from liability for civil

damages if their actions did not violate ‘clearly established statutory or constitutional rights

of which a reasonable person would have known.’” Hope v. Pelzer, 536 U.S. 730, 739 (2002)

(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).

Here, Defendants argue that no constitutional violations occurred. Indeed, when

considering a plaintiff’s claims, “[t]he threshold inquiry a court must undertake in a qualified

immunity analysis is whether plaintiff’s allegations, if true, established a constitutional

violation.” Hope, 536 U.S. at 736. Further, to establish personal liability against a government

agent for a constitutional wrong the facts alleged by Plaintiff must contain sufficient

allegations to show that the individual personally participated in the alleged constitutional

violation. See, e.g., Gonzalez v. Reno, 325 F.3d 1228, 1234 (11th Cir. 2003).

Under § 1983, Plaintiff asserts claims for arrest without probable cause in Count I

against Principal Dudley7 and in Count II against Sgt. Reyes and Officer Marklund. Claims

alleging arrest without probable cause generally require a showing of “(1) the unlawful

detention and deprivation of liberty of a person; (2) against that person’s will; (3) without legal

authority or ‘color of authority’; and (4) which is unreasonable and unwarranted under the

circumstances.” Mbano v. Kriseman, No. 8:14-CV-1923-T-30TBM, 2014 WL 5782802, at *4

(M.D. Fla. Nov. 6, 2014). In other words, a “warrantless arrest without probable cause

7 Plaintiff alleges that he was arrested without probable cause due to Principal Dudley’s

“escalated arbitrary and capricious actions.” (Doc. 1-2 at 7). Plaintiff does not allege that Dudley

arrested him, but rather that he was arrested at Dudley’s request. Because the Court finds below that

there was both actual and arguable probable cause for the arrest, the Court need not examine whether

the extent of Dudley’s personal participation in the arrest is sufficient to support liability under § 1983.

violates the Fourth Amendment and is actionable under 42 U.S.C. § 1983.” Ainsworth v.

Norris, 469 F. App’x 775, 776 (11th Cir. 2012).

Importantly, in a § 1983 claim based on false arrest, the pertinent inquiry is not whether

the person arrested in fact committed the offense but whether the arresting officers had

probable cause to believe the person arrested had committed the offense. See generally Rankin

v. Evans, 133 F.3d 1425, 1435-36 (11th Cir. 1998); Marx v. Gumbinner, 905 F.2d 1503 (11th

Cir. 1990). For probable cause to exist, “an arrest must be objectively reasonable under the

totality of circumstances.” Bailey v. Board of County Comm’rs of Alachua County, 956 F.2d 1112,

1119 (11th Cir.) cert. denied, 506 U.S. 832 (1992); Kingsland v. City of Miami, 382 F.3d 1220,

1226 (11th Cir. 2004) (“Probable cause to arrest exists when an arrest is objectively reasonable

based on the totality of the circumstances.”). This standard is met when the facts and

circumstances within the officer’s knowledge, of which he has reasonably trustworthy

information, would cause a prudent person to believe, under the circumstances shown, that a

suspect had committed, is committing, or is about to commit an offense. Williamson v. Mills,

65 F.3d 155, 158 (11th Cir. 1995).

Plaintiff’s own factual allegations in the complaint belie his conclusory assertion that

Defendants Dudley, Reyes, and Marklund arrested him (or had him arrested) for trespass

under Fla. Stat. § 810.097 without probable cause. According to his own written allegations,

Plaintiff concedes that he was openly filming activity during dismissal at the school, and that

he was doing so from the public sidewalk nearby. He also concedes that he entered school

property and had an exchange with Principal Dudley regarding the public records request.

Plaintiff alleges that he and Dudley engaged in an exchange or dispute regarding Plaintiff’s

desire to make a records request at the school and the propriety of his attempt to do so at the

school versus the District Office. His own allegations make it plain that Plaintiff was acting

in a confrontational manner, that he argued with both Principal Dudley and Sgt. Reyes, and

that he disputed Dudley’s direction to make a request at the District Office. Plaintiff admits

entering the school campus about four minutes after being clearly informed by Dudley that

public records requests needed to be made at the District Office. In other words, even if he

initially believed in good faith that he had legitimate business on the campus, Dudley’s

instructions clarified otherwise. Even after he was also warned by Sgt. Reyes, Plaintiff

continued to engage with Dudley. Plaintiff contends that he told Dudley, “I would see him

tomorrow,” and mentioned the public records request again.

Moreover, the video footage plainly establishes that Plaintiff was on school property

and that he remained on school property after being informed numerous times that his public

records request should be made elsewhere. Importantly, Principal Dudley asked him to leave

more than eight times during that exchange alone. In other words, both Plaintiff’s own

allegations and his supporting video exhibit establish that the officers had an objectively

reasonable basis for his arrest under Fla. Stat. § 810.097(1) and (2).8 Regardless of which

8 Fla. Stat. § 810.097 provides, in part:

Trespass upon grounds or facilities of a school; penalties; arrest.—

(1) Any person who:

(a) Does not have legitimate business on the campus or any other

authorization, license, or invitation to enter or remain upon school property;

or

(b) Is a student currently under suspension or expulsion;

and who enters or remains upon the campus or any other facility owned by

any such school commits a trespass upon the grounds of a school facility and

is guilty of a misdemeanor of the second degree, punishable as provided in s.

775.082 or s. 775.083.

(2) Any person who enters or remains upon the campus or other facility of a school

after the principal of such school, or his or her designee, has directed such person to

leave such campus or facility or not to enter upon the campus or facility, commits a

trespass upon the grounds of a school facility and is guilty of a misdemeanor of the

first degree, punishable as provided in s. 775.082 or s. 775.083.

Fla. Stat. § 810.097.

subsection of the statute is applied, probable cause exists for the arrest.

Further, even if there was not actual probable cause, I submit that the arresting officers

had arguable probable cause, which is “all that is required for qualified immunity to be

applicable to an arresting officer.” Scarbrough v. Myles, 245 F.3d 1299, 1302 (11th Cir. 2001).

Arguable probable cause exists “where reasonable officers in the same circumstances and

possessing the same knowledge as the Defendant[] could have believed that probable cause

existed to arrest.” Id. (quoting Redd v. City of Enterprise, 140 F.3d 1378, 1382 (11th Cir. 1998)

(internal citations omitted)). “Arguable probable cause does not require an arresting officer to

prove every element of a crime or to obtain a confession before making an arrest, which would

negate the concept of probable cause and transform arresting officers into prosecutors.”

Scarbrough, 245 F.3d at 1302–03.

Based on the same reasons described above establishing that the officers had an

objectively reasonable basis for the arrest, I also submit that the officers had arguable probable

cause and would therefore be entitled to qualified immunity. For these reasons, Plaintiff’s

claims against Principal Dudley in Count I and against Sgt. Reyes and Officer Marklund in

Count II for unlawful arrest or arrest without probable cause should be dismissed.

B. EXCESSIVE FORCE AGAINST REYES AND MARKLUND

Next, the Court turns to the claims for excessive force alleged in Count II against Sgt.

Reyes and Officer Marklund. Under the Fourth Amendment, the “freedom from

unreasonable searches and seizures encompasses the plain right to be free from the use of

excessive force in the course of an arrest.” Lee v. Ferraro, 284 F.3d 1188, 1197 (11th Cir. 2002).

To determine whether excessive force was used, the court considers whether the actions in

question “are ‘objectively reasonable’ in light of the facts and circumstances.” Garrett v.

Athens–Clarke County, 378 F.3d 1274, 1279 (11th Cir. 2004) (quoting Graham v. Connor, 490

U.S. 386, 397 (1989)).

Fourth Amendment jurisprudence recognizes that “the right to make an arrest or

investigatory stop necessarily carries with it the right to use some degree of physical coercion

or threat thereof to effect it.” Graham, 490 U.S. at 396. As a result, “the application of de

minimis force, without more, will not support a claim for excessive force in violation of the

Fourth Amendment.” Myers v. Bowman, 713 F.3d 1319, 1327 (11th Cir. 2013) (citation

omitted); see, e.g., Rodriguez v. Farrell, 280 F.3d 1341, 1351 (11th Cir. 2002) (in the course of

arrest, officer handcuffed plaintiff in a manner that caused him injury and pain); Nolin v. Isbell,

207 F.3d 1253, 1255, 1258 n.4 (11th Cir. 2000) (during the course of arrest, officer grabbed

plaintiff and shoved him against a van, kneed him in the back and pushed his head against

the van, searched his groin area, and then handcuffed him).

The Supreme Court has established factors for courts to evaluate in considering claims

of excessive force. The factors include: (1) the severity of the crime at issue; (2) whether the

suspect poses an immediate threat to the safety of the officers or others; and (3) whether he is

actively resisting arrest or attempting to evade arrest by flight. Graham, 490 U.S. at 396.

Here, the extent of force alleged by Plaintiff is that the handcuffs were too tight and

that his complaints and requests to loosen them were ignored. Even if the Court accepts these

allegations as true, they are not sufficient to support a claim for excessive force in violation of

the Fourth Amendment. Considering the relevant factors and Plaintiff’s allegations, at best

Sgt. Reyes and Officer Marklund used what can be described as “de minimus” force.

Indeed, courts require considerably more than has been alleged here to support a claim

for excessive force. For example, in Lockhart v. Lebron, No. 19-CV-60326, 2019 WL 1996016,

at *4 (S.D. Fla. Apr. 17, 2019), report and recommendation adopted as modified, No. 19-CV-

60326, 2019 WL 1992993 (S.D. Fla. May 6, 2019), the court considered allegations more

serious than those brought here, including that the plaintiff was placed in chokehold and

forced to the ground, causing injury. Id. Concluding that the force used was de minimus, the

court reasoned:

[T]hese actions are not necessarily uncommon nor excessive.

While the Plaintiff did not resist arrest, in the Eleventh Circuit,

we recognize that the typical arrest involves some force and

injury.” See Nolin v. Isbell, 207 F.3d 1253, 1257–58 (11th Cir.

2000). “Painful handcuffing, without more, is not excessive force

in cases where the resulting injuries are minimal.” Rodriguez v.

Farrell, 280 F,3d 1341, 1352 (11th Cir. 2002). Once handcuffed,

the Plaintiff does not allege that any excessive force was used;

rather, he alleged that he was simply placed in the patrol car and

transported to jail.

Id. at *4.

Consideration of the relevant factors together with the facts and circumstances

presented here results in the conclusion that the use of force was reasonable or, as the Lockhart

court concluded, de minimus. Therefore, even if the allegations of Plaintiff’s complaint are

accepted as true, the Plaintiff still has not stated a claim for violation of the Fourth

Amendment upon which relief may be granted.9

C. QUALIFIED IMMUNITY FOR ALL INDIVIDUAL DEFENDANTS

Moreover, as to the claims alleged against the individual defendants, the Court

expressly notes that the defendants are entitled to qualified immunity. Qualified immunity

offers complete protection for individual government officials performing discretionary

9 The Court notes that Plaintiff’s complaint appears to allege claims for excessive force against

both Sgt. Reyes and Officer Marklund, although they were each responsible for distinct actions.

Because the complaint falls well short of stating a claim for excessive force against either of them, it is

not necessary to parse out precisely which allegations pertain to each officer.

functions “insofar as their conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have known.” Harlow, 457 U.S. at

818.

Assuming for purposes of this analysis that the individual defendants were engaged in

a discretionary function, “the burden shifts to the plaintiff to show that the defendant is not

entitled to qualified immunity.” Holloman ex rel. Holloman v. Harland, 370 F.3d 1252, 1264

(11th Cir. 2004). To satisfy this burden, the plaintiff must show that: “(1) the defendant

violated a constitutional right, and (2) this right was clearly established at the time of the

alleged violation.” Id. As discussed above, the allegations of the complaint are insufficient to

state constitutional violations. Consequently, the Court finds that Sgt. Reyes, Officer

Marklund, and Principal Dudley are entitled to qualified immunity as to each of the claims

alleged against them in their individual capacities.

D. MUNICIPAL LIABILITY FOR FAILURE TO TRAIN AGAINST LAKE

COUNTY SCHOOL DISTRICT

Next, the Court turns to Plaintiff’s claim under § 1983 against the Lake County Florida

School District for failure to train Principal Dudley of his duties as custodian of public records.

Plaintiff devotes only two sentences to this claim and contends that “Plaintiff was unlawfully

trespassed and unlawfully arrested for trespassing due to the but for cause of the documented

unconstitutional policy po9150 of the LCSD Board Policies.” (Doc. 1-1 at 9). In support of

his claim, Plaintiff references Monell v. Dep’t of Soc. Servs. of New York, 436 U.S. 658 (1978).

Under Monell, a government entity is subject to § 1983 liability “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, 436 U.S. at 694.

Under the Monell doctrine, however, “municipalities cannot be held liable for employees

under respondeat superior.” Mercado v. City of Orlando, 407 F.3d 1152, 1161 (11th Cir. 2005).

If a constitutional violation is established, then the courts must consider “whether

there is a direct causal link between a municipal policy or custom and the alleged

constitutional deprivation.” City of Canton v. Harris, 489 U.S. 378, 385 (1989); accord Patrick v.

Floyd Med. Ctr., 201 F.3d 1313, 1315 (11th Cir. 2000). Specifically, in order to prevail under

this claim, “a plaintiff must show: (1) that his constitutional rights were violated; (2) that the

municipality had a custom or policy that constituted deliberate indifference to that

constitutional right; and (3) that the [municipality’s] policy or custom caused the violation.”10

McDowell v. Brown, 392 F.3d 1283, 1289 (11th Cir. 2004).

The second requirement, namely, that a custom, policy, or procedure exists, “prevents

the imposition of liability based upon an isolated incident.” Id. Indeed, courts have recognized

that: “Where a plaintiff claims that a municipality has not directly inflicted an injury, but

nonetheless has caused an employee to do so, rigorous standards of culpability and causation

must be applied to ensure that the municipality is not held liable solely for the actions of its

employee.” Bd. of County Comm’r v. Brown, 520 U.S. 397, 405 (1997).

As an initial matter, Plaintiff’s claim against the Lake County School District fails

because Plaintiff has not established the first element, that his constitutional rights were

violated. Likewise, Plaintiff has not established that the District had a custom or policy that

constituted deliberate indifference to his constitutional right or that the policy or custom

caused the violation. Although Plaintiff references policy po9150 of the LCSD Board Policies,

10 A policy or custom is a persistent and wide-spread practice. Depew v. City of St. Marys, 787

F.2d 1496, 1499 (11th Cir. 1986).

he does not recite any facts that would suggest the policy constituted deliberate indifference

to constitutional rights or that it caused a violation.

Simply alleging the elements necessary to state a claim against a governmental entity,

without alleging facts to support those elements, is insufficient for purpose of surviving a

motion to dismiss. See, e.g., Gray v. City of Roswell, 486 Fed. App’x 798, 800–01 (11th Cir.

2012) (holding that while a municipality may be liable under § 1983 when official policy or

custom causes a constitutional violation, a plaintiff cannot survive a motion to dismiss where

she “does not recite any facts or policies that would support a claim against the City,” but

instead makes “threadbare recitals of the elements of a cause of action, supported by mere

conclusory statements”) (quotation omitted).

Further, to the extent Plaintiff asserts a failure to train or supervise claim (see, e.g., Doc.

1-1 at 9, ¶ 38), such a claim also fails on these allegations. “To establish ‘deliberate

indifference’ or a ‘deliberate or conscious choice,’ a plaintiff must present some evidence that

the [government] knew of a need to train and/or supervise in a particular area and the

[government] made a deliberate choice not to take any action.” Gold v. City of Miami, 151 F.3d

1346, 1350–51 (11th Cir. 1998). “Further, the Eleventh Circuit requires ‘proof that the

[governmental entity] was aware of a prior incident in which constitutional rights were

similarly violated.’” Lang v. City of Largo, 2006 WL 889990, at *2 (M.D. Fla. Apr. 6, 2006)

(quoting Church v. Huntsville, 30 F.3d 1332, 1342–46 (11th Cir. 1994)). Notably, it is not

sufficient to merely allege that a particular officer may be unsatisfactorily trained or that an

incident could have been avoided if an officer had better training. City of Canton, 489 U.S. at

390–91.

Here, Plaintiff has alleged nothing (other than conclusory assertions) to suggest that

the Lake County School District was deliberately indifferent to his rights or the rights of

others. Indeed, Plaintiff alleges in a conclusory manner that the Lake County School District

failed to train and supervise Dudley on his duties as the custodian of public records, but he

alleges no factual basis—other than this incident—to support this theory of liability. Facts

must be alleged to support this theory of liability. See Hall, 170 Fed. App’x at 108 (“Because

Hall alleged no factual support for his conclusory statement that the City had a policy or

custom of grossly inadequate supervision and training of its employees, the district court did

not err in dismissing Hall’s claims against the City.”); cf. Rivas v. Figueroa, 2012 WL 1378161

(S.D. Fla. Apr. 20, 2012) (finding that plaintiff had sufficiently alleged facts of a custom,

policy, or practice to overcome the defendants motion to dismiss where plaintiff alleged, with

detail, numerous instances of police officers using excessive force and receiving no

disciplinary action).

Plaintiff has presented no factual matter, as he is required to do, that the Lake County

School District knew of a need to train and deliberately chose not to take action; nor has

Plaintiff provided evidence that the District was aware of a prior incident. Accordingly, and

because Plaintiff has also not established a constitutional violation, Plaintiff’s governmental

liability claim against the Lake County School District is due to be dismissed in all respects.

E. FIRST AMENDMENT RETALIATION AGAINST ALL DEFENDANTS

Finally, the Court turns to Plaintiff’s claim alleging retaliation in violation of the First

Amendment. Plaintiff devotes a single sentence to this claim and alleges that he brings the

claim against all defendants “because their rights violations were driven by the fact of me

exercising my right to be Free Press, Right of Assembly, Redress of Government.” (Doc. 1-1

at 9, ¶ 39).

This claim is also insufficient because the existence of probable cause also generally

bars a First Amendment retaliatory arrest claim. See Nieves v. Bartlett, 204 L. Ed. 2d 1, 139 S.

Ct. 1715, 1726 (2019). The exception to this rule is “when “a plaintiff presents objective

evidence that he was arrested when otherwise similarly situated individuals not engaged in

the same sort of protected speech had not been.” Nieves, 139 S. Ct. at 1727.

As has already been established above, probable cause existed for Plaintiff’s arrest.

Further, Plaintiff has not alleged that he was arrested when otherwise similarly situated

individuals not engaged in the same sort of protected speech were not. Consequently, Plaintiff

has failed to state a claim for retaliation in violation of the First Amendment.

F. MOTION FOR JUDICIAL NOTICE

As a final matter, and as mentioned above, the defendants have also filed a motion

requesting that the Court take judicial notice of the record in related state court proceedings.

Defendants recite that Plaintiff was charged by Information with one count of Trespassing

Upon Grounds of a Public School Facility, in violation of Fla. Stat. § 810.097(1). The

Information is attached to Defendants’ motion as Exhibit 1. (Doc. 11-1).

Defendants further recite that Plaintiff entered a Pre-Trial Intervention Program,

which resulted in a Pre-Trial Intervention Contract. The contract is attached to Defendants’

motion as Exhibit 2. As a condition of the Pre-Trial Intervention Program, Plaintiff agreed to

admit guilt to the underlying charge of Trespassing upon Grounds of a Public School Facility

and agreed the admission could be used in court for future proceedings. (Doc. 11-2 at 2). The

contract expressly states, “[t]he defendant does further admit guilt to the underlying charge(s),

which can be used in court for future proceedings.” (Doc. 11-2 at 2).

Federal Rule of Evidence 201(b) provides that a court “may judicially notice a fact that

is not subject to reasonable dispute because it:”

(1) is generally known within the trial court’s territorial

jurisdiction; or (2) can be accurately and readily determined from

sources whose accuracy cannot reasonably be questioned.

In ruling on a motion to dismiss, the Court may consider matters of which the Court may

take judicial notice. Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007). Among

such items are court records. Griffin v. Verizon Comm'cns Inc., 746 F. App'x 873, 876 (11th Cir.

2018). The Court may consider those documents only to the extent that they speak for

themselves and not for the truth of the matters asserted. Mathieson v. Wells Fargo Bank, NA as

Tr. for Pooling & Servicing Agreement Dated as of June 1, 2006 Securitized Asset Backed Receivables

LLC Tr. 2006-FR2 Mortg. Pass-Through Certificates, Series 2006-FR2, 524 F. Supp. 3d 1246, 1256

n.10 (M.D. Fla. 2021); see Thomas v. Waste Pro USA, Inc., No. 8:17-cv-2254-CEH-CPT, 2019

WL 3835255, at *2 (M.D. Fla. Aug. 15, 2019) (“the court may take judicial notice of the

documents filed in a proceeding, but not the facts contained in the documents.”).

Here, Defendants request that the Court take judicial notice of “the attached records,”

meaning the Information and the Pretrial Intervention Contract, “for all proper and

permissible uses in this matter and for such other and further relief as the Court deems just

and proper.” (Doc. 11). Defendants do not request that the Court take judicial notice of any

particular underlying fact or statement in those records, nor do Defendants expressly argue

that Plaintiff’s false arrest claim is barred due to Plaintiff’s admission of guilt to the trespassing

charge. See, e.g., Vickers v. Donahue, 137 F. Appx 285, 290 (11th Cir. 2005) (holding that

conviction barred a plaintiff’s § 1983 claim, despite plaintiff’s allegations, where the § 1983

claim directly contradicted that plaintiff was found guilty of the violation, convicted, and

sentenced).

As explained above, Plaintiff's own allegations and the video footage provides ample

support for a finding of both actual probable cause and arguable probable cause for his arrest.

In other words, Defendants’ motions to dismiss are due to be granted regardless of whether

the Court takes judicial notice of the Information and Pretrial Intervention Contract, and

Defendants have not made a specific argument relying on those documents. Consequently,

the request for judicial notice (Doc. 11) is due to be denied as moot, but without prejudice to

the right to refile the motion if necessary.

IV. RECOMMENDATION

For the reasons stated above, and upon due consideration, it is respectfully

RECOMMENDED that:

(1) Defendants’ motion for judicial notice (Doc. 11) be denied as moot, but without

prejudice to the right to refile the motion if necessary.

(2) The motions to dismiss filed by Sgt. Reyes, Officer Marklund, Principal Gregg

Dudley, and the Lake County Florida School District (Docs. 12, 13 & 15) should

be GRANTED in all respects.

DONE and RECOMMENDED in Ocala, Florida on March 23, 2023.

DSL senso

PHILIP R. LAMMENS

United States Magistrate Judge

c: Presiding District Judge & Courtroom Deputy

Counsel of Record

Unrepresented Party