The opinion
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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 24-10276
Non-Argument Calendar
____________________
ANGEL E. GASTON,
Plaintiff-Appellant,
versus
CITY OF LEESBURG,
In their official capacity,
LAKE COUNTY FLORIDA,
In their official capacity,
JOSEPH IOZZI,
In his individual and official capacity,
NICHOLAS M. ROMANELLI,
In his individual and official capacity,
D. V. PAONESSA,
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2 Opinion of the Court 24-10276
In his individual and official capacity, et al.,
Defendants-Appellees,
PEYTON C. GRINELL et al.,
Defendants.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 5:23-cv-00056-PGB-PRL
____________________
Before NEWSOM, BRANCH, and ANDERSON Circuit Judges.
PER CURIAM:
Angel E. Gaston appeals the district court’s order dismissing
his pro se second amended complaint, which brought claims under
42 U.S.C. §§ 1983 and 1985, as well as Florida law, arising out of his
October 27, 2020, arrest. Gaston asserts that the district court er-
roneously dismissed his federal claims—for First Amendment re-
taliation, malicious prosecution, selective enforcement, civil-rights
conspiracy, and failure to train—for failure to state a claim. Gaston
also contends that the district court erroneously declined to exer-
cise supplemental jurisdiction over his state-law claims. Because
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24-10276 Opinion of the Court 3
none of his arguments are persuasive, we affirm the decision of the
district court.
The facts are known to the parties, and we repeat them here
only as necessary to decide the case.
I
We review de novo a district court’s sua sponte dismissal for
failure to state a claim under 28 U.S.C. § 1915A(b)(1). Harden v.
Pataki, 320 F.3d 1289, 1292 (11th Cir. 2003).
Section 1983 provides a cause of action for private citizens
against persons acting under color of state law for violating their
constitutional rights and other federal laws. 42 U.S.C. § 1983; see
also Monell v. Dep’t of Social Servs. of City of New York, 436 U.S. 658,
690 (1978) (holding that municipalities are “persons” for purposes
of 42 U.S.C. § 1983).
To state a § 1983 First Amendment retaliation claim, a plain-
tiff must allege facts making it plausible that: (1) his speech was
constitutionally protected, (2) the defendant’s retaliatory conduct
adversely affected the protected speech, and (3) there is a causal
connection between the retaliatory conduct and the protected
speech. DeMartini v. Town of Gulf Stream, 942 F.3d 1277, 1289 (11th
Cir. 2019).
In Nieves v. Bartlett, the Supreme Court held that the exist-
ence of probable cause to arrest bars a retaliatory arrest claim as a
matter of law. See 587 U.S. 391, 400–04 (2019). But the Court
carved out one exception. If a plaintiff can present objective
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evidence that he was arrested when otherwise similarly situated in-
dividuals would not have been, the plaintiff may still pursue a re-
taliatory arrest claim as if probable cause did not exist. Id. at 406–
08. The plaintiff does not need a “virtually identical and identifia-
ble” comparator. Gonzalez v. Trevino, 602 U.S. 653, 658 (2024). But
the evidence must be objective. Id. Evidence that no one had ever
been arrested in a certain jurisdiction for a certain kind of conduct
can satisfy the Nieves exception. Id.
“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 ar-
rest.” Gates v. Khokhar, 884 F.3d 1290, 1298 (11th Cir. 2018) (quota-
tion marks omitted, alteration adopted). Still, an officer may not
“unreasonably and knowingly disregard or ignore evidence or re-
fuse to take an obvious investigative step that would readily estab-
lish that they lack probable cause to arrest a suspect.” Harris v.
Hixon, 102 F.4th 1120, 1129 (11th Cir. 2024).
Under Florida law, it is illegal for a person to be present on
state or county property while “wearing any mask, hood, or device
whereby any portion of the face is so hidden, concealed, or covered
as to conceal the identity of the wearer” if that person intends to
“intimidate, threaten, abuse, or harass any other person.” Fla. Stat.
§§ 876.13, 876.155(3). At the time of Gaston’s arrest, it was also
illegal to carry a concealed knife without a license. Fla. Stat.
§ 790.01 (2015); id. § 790.001(3)(a) (2016).
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Here, the district court did not err in dismissing Gaston’s
First Amendment retaliation claim because the existence of proba-
ble cause to arrest him bars it as a matter of law. Nieves, 587 U.S.
at 404. And Gaston does not meet the Nieves exception because he
failed to plead objective examples that showed that he was arrested
when otherwise similarly situated individuals would not have
been. Gonzalez, 602 U.S. at 658; Nieves, 587 U.S. at 404.
As to his charge for wearing a mask in public to conceal his
identity, Gaston’s assertion—that providing his name to the police
operator upon his arrival proves that he was not concealing his
identity—is unavailing. Even if Gaston’s identity was known to
Lieutenant Romanelli and the police operator, it was still reasona-
ble for Romanelli to determine that Gaston tried to conceal his
identity from others outside the police station. See Gates, 884 F.3d
at 1298. As Romanelli noted in his probable-cause affidavit, Gas-
ton’s attire that day—a “black sparring helmet with a clear to off-
white face protector,” and underneath that, a camouflage face cov-
ering which revealed only his eyes—went far beyond the typical
mask that individuals wore during the COVID-19 pandemic. See
id. Thus, Gaston’s open carrying of weapons, combined with his
decision to cover nearly his entire head and face, made it reasona-
ble for Romanelli to conclude that Gaston concealed his identity to
intimidate or harass others, in violation of Florida law. Fla. Stat.
§§ 876.13, 876.155(3); see Gates, 884 F.3d at 1298.
As to his charge for carrying a concealed weapon, even
granting Gaston’s assertion that the steak knife was stored in the
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sheath on his hip, it was still reasonable for Romanelli to conclude
that the knife was concealed. From Romanelli’s vantage point
when exiting his vehicle, which was approximately 30 to 40 feet
away from Gaston, it is reasonable that he would not have realized
that the smaller steak knife was stored alongside the machete in a
sheath that was designed specifically for the larger weapon. See
Gates, 884 F.3d at 1298. Thus, because the knife was not visible to
Romanelli when he first observed Gaston—and only became visi-
ble after Romanelli told Gaston to drop his weapons—Gaston plau-
sibly violated Florida law. Fla. Stat. § 790.01 (2015); id.
§ 790.001(3)(a) (2016); id. § 790.02 (2024).
II
“To establish a federal malicious prosecution claim under
§ 1983, the plaintiff must prove a violation of his Fourth Amend-
ment right to be free from unreasonable seizures in addition to the
elements of the common law tort of malicious prosecution.” Wood
v. Kesler, 323 F.3d 872, 881 (11th Cir. 2003). “The constituent ele-
ments of the common law tort of malicious prosecution include:
(1) a criminal prosecution instituted or continued by the present
defendant; (2) with malice and without probable cause; (3) that ter-
minated in the plaintiff accused’s favor; and (4) caused damage to
the plaintiff accused.” Butler v. Smith, 85 F.4th 1102, 1111 (11th Cir.
2023) (quotation marks omitted, alterations adopted). A Fourth
Amendment claim for malicious prosecution adds two more ele-
ments: (5) the legal process justifying the seizure must be constitu-
tionally infirm; and (6) the seizure would be unjustified without le-
gal process. Id. at 1111–12. Qualified immunity adds a seventh
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element—the law must be “clearly established.” Id. at 1112 (quo-
tation marks omitted).
Here, Gaston cannot establish his malicious prosecution
claim because he cannot show that prosecution occurred both
without probable cause and with malice. Id. at 1111; Wood, 323
F.3d at 881. As already explained, the record supports that the
Leesburg Police Department (“LPD”) officers acted with arguable
probable cause. Butler, 85 F.4th at 1111. Gaston also does not point
to, and the record does not reveal, any evidence that the officers
acted with malice. Id.
III
“[T]he Constitution prohibits selective enforcement of the
law based on considerations such as race.” Whren v. United States,
517 U.S. 806, 813 (1996). The proper remedy for selective enforce-
ment is a claim under the Equal Protection Clause, not the Fourth
Amendment. See id. The Equal Protection Clause directs “that all
persons similarly situated should be treated alike.” City of Cleburne,
Tex. v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985).
Equal protection claims are not limited to individuals dis-
criminated against based on their membership in a vulnerable class.
See Campbell v. Rainbow City, 434 F.3d 1306, 1314 (11th Cir. 2006).
The Supreme Court has recognized that equal protection claims
may be brought by a “class of one” when the plaintiff alleges that
(1) he was intentionally treated differently from others similarly sit-
uated; and (2) there was no rational basis for the differential treat-
ment. Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000)
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(quotation marks omitted). “To be similarly situated, the compar-
ators must be prima facie identical in all relevant respects.” Grider v.
City of Auburn, 618 F.3d 1240, 1264 (11th Cir. 2010) (quotation
marks omitted). “[P]laintiffs are not permitted simply to rely on
broad generalities in identifying a comparator.” Leib v. Hillsborough
Cnty. Pub. Transp. Comm’n, 558 F.3d 1301, 1307 (11th Cir. 2009)
(quotation marks omitted). A “class of one” plaintiff could fail to
state a claim by leaving out critical facts in alleging that he is simi-
larly situated to another. Griffin Indus., Inc. v. Irvin, 496 F.3d 1189,
1205 (11th Cir. 2007) (quotation marks omitted).
Here, Gaston failed to allege facts showing that he was in-
tentionally treated differently from others similarly situated absent
a rational basis. See Village of Willowbrook, 528 U.S. at 564. In his
second amended complaint, Gaston identified the following situa-
tions with potential comparators: (1) protestors in Florida who
wore masks during the COVID-19 pandemic; and (2) protestors in
Washington D.C. who wore face coverings and tactical military
gear on January 6, 2021. Both comparators fail to persuade.
As to the first situation, Gaston failed to allege that other
protestors in Florida, who wore masks and carried weapons, were
treated differently. See Grider, 618 F.3d at 1264; see also Leib, 558
F.3d at 1307; Griffin Indus., Inc., 496 F.3d at 1205. Moreover, the
district court’s finding that the LPD officers acted with arguable
probable cause when they arrested Gaston undermines his claim
that the officers lacked a rational basis to treat him differently from
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other masked protestors in Florida during the pandemic. See Village
of Willowbrook, 528 U.S. at 564.
As to the second situation, Gaston’s comparison to the Jan-
uary 6 protestors in Washington, D.C. also fails because those indi-
viduals were not similarly situated as they were not subject to Flor-
ida laws. See Grider, 618 F.3d at 1264.
IV
Section 1985 covers conspiracies to interfere with civil
rights. See 42 U.S.C. § 1985(3); Childree v. UAP/GA AG CHEM, Inc.,
92 F.3d 1140, 1146–47 (11th Cir. 1996). Subsection (3) of § 1985
provides a cause of action to victims of a conspiracy to deprive any
person or class of persons of the equal protection of the laws, or of
equal privileges and immunities under the laws. 42 U.S.C.
§ 1985(3). The elements of a § 1985(3) cause of action are:
(1) a conspiracy, (2) for the purpose of depriving, ei-
ther directly or indirectly, any person or class of per-
sons of the equal protection of the laws, or of equal
privileges and immunities under the laws; and (3) an
act in furtherance of the conspiracy, (4) whereby a
person is either injured in his person or property or
deprived of any right or privilege of a citizen of the
United States.
Childree, 92 F.3d at 1146–47.
To prove the second element, a plaintiff must show that
“some racial, or perhaps otherwise class-based, invidiously
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discriminatory animus” motivates the conspirators’ actions. Id. at
1147 (citation and quotation marks omitted).
Here, Gaston failed to state a § 1985(3) claim because he
failed to allege that any “racial, or perhaps otherwise class-based,
invidiously discriminatory animus” motivated the LPD officers’ ac-
tions. See id. (quotation marks omitted). Instead, Gaston alleged
that the officers arrested him because they were irritated that his
protest interrupted the officers’ attendance at a funeral.
V
To impose 42 U.S.C. § 1983 liability on a local government
entity, a plaintiff must show that: (1) his constitutional rights were
violated; (2) the municipality had a custom or policy that consti-
tuted deliberate indifference to that constitutional right; and (3) the
policy or custom caused the violation. McDowell v. Brown, 392 F.3d
1283, 1289 (11th Cir. 2004). A plaintiff must identify either (1) an
officially promulgated local policy or (2) an unofficial custom or
practice shown through the repeated acts of a final policymaker.
Grech v. Clayton Cnty., 335 F.3d 1326, 1329 (11th Cir. 2003) (en
banc). The plaintiff must prove the existence of such a custom, not
through one incident, but by evidence of a “longstanding and wide-
spread practice . . . deemed authorized by the policymaking offi-
cials because they must have known about it but failed to stop it.”
Brown v. City of Fort Lauderdale, 923 F.2d 1474, 1481 (11th Cir. 1991).
Here, the district court did not err in dismissing Gaston’s
failure to train claim because he failed to show that the LPD vio-
lated his constitutional rights or that the LPD had a custom or
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policy that constituted deliberate indifference to these rights.
McDowell, 392 F.3d at 1289. As already explained, the officers had
arguable probable cause to arrest Gaston, so the arrest did not vio-
late his constitutional rights. Id. Gaston also failed to cite to an
officially promulgated LPD policy that constituted deliberate indif-
ference to his rights. Id.; Grech, 335 F.3d at 1329. Gaston further
failed to plead facts to support his assertion that the City of
Leesburg’s policymakers failed to train its officers not to commit
Brady violations or violate citizens’ constitutional rights. City of Fort
Lauderdale, 923 F.2d at 1481. Although Gaston alleged that the
LPD’s refusal to provide body cameras to its officers constituted
deliberate indifference, he failed to point to any incident where this
alleged custom led to the deprivation of someone’s rights, which
would have put city officials on notice that training was needed.
See McDowell, 392 F.3d at 1289; see also City of Fort Lauderdale, 923
F.2d at 1481.
VI
A district court’s decision not to exercise supplemental juris-
diction is reviewed for an abuse of discretion. Romero v. Drummond
Co., Inc., 552 F.3d 1303, 1313 (11th Cir. 2008). A federal district
court may have supplemental jurisdiction over all claims that form
part of the same case or controversy as claims over which the court
has original jurisdiction. 28 U.S.C. § 1367(a). A district court may
decline to exercise supplemental jurisdiction over related claims if
it has dismissed all claims over which it has original jurisdiction.
28 U.S.C. § 1367(c)(3).
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Here, because the district court properly dismissed Gaston’s
federal claims for relief, the court did not abuse its discretion in de-
clining to exercise supplemental jurisdiction over his remaining
state-law claims. Id.; see Romero, 552 F.3d at 1313, 1318.
AFFIRMED.