Lee v. Gulfport City Of

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

JESSE LEE,

Plaintiff,

v. Case No. 8:23-cv-2996-VMC-AEP

CITY OF GULFPORT and

JAMES O’REILLY,

Defendants.

______________________________/

ORDER

This matter comes before the Court upon consideration of

Defendant City of Gulfport’s Amended Motion to Dismiss (Doc.

# 29), filed on September 9, 2024, and Defendant James

O’Reilly’s Motion to Dismiss (Doc. # 47), filed on October 3,

2024. Plaintiff Jesse Lee responded to Gulfport’s Motion on

September 20, 2024 (Doc. # 42), and, with leave of Court,

Gulfport filed a reply on October 21, 2024. (Doc. # 52). Mr.

Lee responded to Mr. O’Reilly’s Motion on October 13, 2024.

(Doc. # 49). For the reasons that follow, the Motions are

granted in part and denied in part.

I. Background

Mr. Lee is a Latino man who allegedly “has been unable

to conduct business selling ice cream from his mobile food

dispensing vehicle” because of “intentional discriminatory

treatment.” (Doc. # 28 at ¶¶ 7, 109). Additionally, Mr. Lee

claims that Mr. O’Reilly directed the police to issue two

trespass warnings against him, which “permanently banned” him

from Gulfport City Hall and the Gulfport Building Department

without explaining why or how to challenge the warnings. (Id.

at ¶¶ 48, 66-67, 77-78; Doc. # 28 at Exs. 2-3). As for the

first trespass warning, Mr. Lee alleges that Mr. O’Reilly

“caused the trespass warning to be issued in retaliation for

[Mr. Lee] having filed a Racial Discrimination Complaint with

the [Gulfport] City Manager’s Office three days earlier.”

(Id. at ¶ 76). According to Mr. Lee, the second trespass

warning was issued “because he asked [for] public records

regarding tickets he had received.” (Id. at ¶ 78).

The amended complaint separately alleges that Gulfport

and Mr. O’Reilly retaliated against Mr. Lee by having him

arrested for trespass while “standing on public property”

outside of a private event at the Gulfport Casino. (Id. at ¶¶

89-90, 150). According to Mr. Lee, he was arrested in

furtherance of a “premeditated” plan “to prevent [Mr. Lee]

from discussing [Gulfport’s] pattern of racial discrimination

and suppression of free speech.” (Id. at ¶¶ 100, 143).

Based on these alleged facts, Mr. Lee’s amended

complaint asserts the following twelve claims against

Defendants: an equal protection violation (Count I); that the

mobile food vendor ordinance is unconstitutionally vague

(Count II); substantive due process violations for each

trespass ban (Counts III and IV); First Amendment retaliation

(Count V); procedural due process violations for each

trespass ban (Counts VI and VII); that the trespass policy is

void for vagueness (Count VIII); declaratory relief for the

mobile food vendor ordinance (Count IX); declaratory relief

for the trespass policy (Count X); injunctive relief for the

trespass bans (Count XI); and injunctive relief for the mobile

food vending preclusion (Count XII).

Defendants, Gulfport and Mr. O’Reilly, each move to

dismiss the amended complaint. (Doc. ## 29, 47). Both Motions

are fully briefed (Doc. ## 42, 49, 52), and ripe for review.

II. Legal Standard

On a motion to dismiss pursuant to Rule 12(b)(6), this

Court accepts as true all the allegations in the complaint

and construes them in the light most favorable to the

plaintiff. Jackson v. Bellsouth Telecomms., 372 F.3d 1250,

1262 (11th Cir. 2004). Further, the Court favors the plaintiff

with all reasonable inferences from the allegations in the

complaint. Stephens v. Dep’t of Health & Human Servs., 901

F.2d 1571, 1573 (11th Cir. 1990). But,

[w]hile a complaint attacked by a Rule 12(b)(6)

motion to dismiss does not need detailed factual

allegations, a plaintiff’s obligation to provide

the grounds of his entitlement to relief requires

more than labels and conclusions, and a formulaic

recitation of the elements of a cause of action

will not do. Factual allegations must be enough to

raise a right to relief above the speculative

level.

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal

citations omitted). Courts are not “bound to accept as true

a legal conclusion couched as a factual allegation.” Papasan

v. Allain, 478 U.S. 265, 286 (1986). The Court must limit its

consideration to 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).

III. Analysis

A. Gulfport’s Motion to Dismiss

Gulfport’s Motion first argues that Counts I, II, IX,

and XII of the amended complaint are precluded by res

judicata, or, alternatively, by collateral estoppel. (Doc. #

29 at 3-13). Second, Gulfport submits that Mr. Lee failed to

state a substantive due process claim relating to the trespass

warnings and Counts III, IV, and V should thus be dismissed.

(Id. at 13-17). Third, Gulfport submits that Mr. Lee failed

to state a procedural due process claim relating to the

trespass warnings such that Counts VI, VII, and VIII should

be dismissed. (Id. at 17-21). Fourth, Gulfport argues that

its trespass policy is not vague, and Counts IX, X, and XI

should thus be dismissed for failure to state a claim. (Id.

at 21-23). Fifth, and finally, Gulfport argues that Counts IX

through XII should be dismissed because the relief sought is

premature. (Id. at 23-24).

The Court notes that Gulfport’s reply raises several

arguments not included in its Motion. (Doc. # 52). These new

arguments will not be considered. See Boring v. Pattillo

Indus. Real Est., 426 F. Supp. 3d 1341, 1349 (N.D. Ga. 2019)

(“[T]he case law is well-settled that the Court need not

consider arguments in reply.”); Riechmann v. Fla. Dep’t of

Corr., 940 F.3d 559, 579 (11th Cir. 2019) (“[A]rguments raised

for the first time in a reply brief are not properly before

a reviewing court.” (citation omitted)).

1. Res Judicata and Collateral Estoppel

Gulfport submits that a county court action, which found

Mr. Lee guilty of sales without a permit, precludes this suit.

(Doc. # 29 at 3-9). “[W]hen a federal court exercises federal

question jurisdiction and is asked to give res judicata effect

to a state court judgment, it must apply the ‘res judicata

principles of the law of the state whose decision is set up

as a bar to further litigation.’” Amey, Inc. v. Gulf Abstract

& Title, Inc., 758 F.2d 1486, 1509 (11th Cir. 1985). “The

Florida doctrine of res judicata bars subsequent litigation

where there is (1) identity of the thing sued for, (2)

identity of the cause of action, (3) identity of persons and

parties to the actions, and (4) identity of the quality or

capacity of the person for or against whom the claim is made.”

Id.

The res judicata requirements are not met. Gulfport has

not established that identity of the cause of action exists

— that is, that Mr. Lee’s current claims regarding equal

protection, due process, and the ordinance’s validity are

substantially the same as his county court judgment as to

sales without permits. See Carroll v. City of Detroit, 410 F.

Supp. 2d 615, 620 (E.D. Mich. 2006) (“Although Plaintiffs

presumably could have challenged the constitutionality of the

ordinances as a defense in their criminal proceedings, they

could not have raised the cause of action they have asserted

here. . . . [T]he City does not explain how Plaintiffs could

have obtained such monetary and equitable relief in their

criminal proceedings.”). Because all four elements must be

met, and the Court determines that at least identity of the

action is lacking, Gulfport’s argument fails.

Gulfport’s alternate collateral estoppel argument also

fails. See Vinson v. Campbell Cnty. Fiscal Ct., 820 F.2d 194,

197 (6th Cir. 1987) (“Collateral estoppel or issue preclusion

is not applicable in the present case because plaintiff’s

section 1983 action is not the same cause of action as the

state’s criminal case against her; neither the validity of

the summons nor the legality of the arrest was litigated or

decided in the prior state court proceeding.”). Collateral

estoppel forecloses relitigating an issue of fact or law if

the following is met: “(1) the issue at stake must be

identical to the one involved in the prior litigation; (2)

the issue must have been actually litigated in the prior suit;

(3) the determination of the issue in the prior litigation

must have been a critical and necessary part of the judgment

in that action; and (4) the party against whom the earlier

decision is asserted must have had a full and fair opportunity

to litigate the issue in the earlier proceeding.” Citibank,

N.A. v. Data Lease Fin. Corp., 904 F.2d 1498, 1501 n.6 (11th

Cir. 1990) (citation omitted).

At this motion to dismiss stage, the Court cannot

conclude which issues, if any, Mr. Lee should be precluded

from relitigating. See Restivo v. Pennachio, No. 21-23388-

CIV, 2022 WL 4355764, at *7 (S.D. Fla. Sept. 20, 2022)

(deciding not to dismiss claims based on issue preclusion

“without the benefit of the full record”). Importantly, the

Court is not suggesting that the county court judgment cannot

later form the basis for collateral estoppel once the Court

has the benefit of the full record. Id.

Therefore, the Court denies Gulfport’s Motion as to

Counts I, II, IX, and XII on these grounds.

2. Substantive Due Process

Gulfport argues that Mr. Lee’s substantive due process

claims regarding the trespass policy should be dismissed for

failure to state a claim. Specifically, Gulfport submits (1)

that its policy survives rational basis, and (2) that Mr. Lee

“has not properly pled a cause of action” because he “failed

to allege compliance with the necessary condition precedent”

of pursuing available appellate procedures. (Doc. # 29 at 15-

17). Gulfport’s purported appellate procedures are found in

“Written Directive 406.” (Id. at 15-16). These arguments are

defeated by the broad Rule 12(b)(6) standard as Mr. Lee’s

amended complaint plausibly states a claim for violation of

his substantive due process rights.

“The test in this Circuit as to whether there has been

a violation of [substantive] due process in the context

of section 1983 has two prongs.” Executive 100, Inc. v.

Martin Cnty., 922 F.2d 1536, 1541 (11th Cir. 1991). The Court

must determine (1) that “there has been a deprivation of a

constitutionally protected interest,” and (2) that “the

deprivation was the result of an abuse of governmental power

sufficient to raise an ordinary tort to the stature of a

constitutional violation.” Id. However, “conduct by a

government actor will rise to the level of a substantive due

process violation only if the act can be characterized as

arbitrary or conscience shocking in a constitutional sense.”

Waddell v. Hendry Cty. Sheriff’s Office, 329 F.3d 1300, 1305

(11th Cir. 2003).

While the right is “neither fundamental . . . nor

limitless,” the Eleventh Circuit has “recognized a

‘constitutionally protected liberty interest,’ for purposes

of due process, ‘to be in parks or on other city lands . . .

that are open to the public generally.’” Peery v. City of

Miami, 977 F.3d 1061, 1071 (11th Cir. 2020) (citing Catron v.

City of St. Petersburg, 658 F.3d 1260, 1266 (11th Cir. 2011)).

Thus, while not limitless, Mr. Lee alleges a constitutionally

protected liberty interest to be in City Hall and the Gulfport

Building Department, both municipally-owned properties open

to the public. (Doc. # 28 at ¶¶ 124, 134). Mr. Lee further

alleges that Defendants permanently banned him from these

locations without justification or a process for challenging

the bans. (Id. at ¶¶ 67, 78). According to Mr. Lee, these

trespass warnings can be issued “for any reason or for no

reason at all,” and Mr. O’Reilly “caused [his] trespass

warning to be issued in retaliation for [Mr. Lee] having filed

a Racial Discrimination Complaint . . . three days earlier.”

(Id. at ¶¶ 72, 76). If proven true, this alleged unfettered

use of the trespass policy is sufficient to shock the

conscience.

Separately, Mr. Lee counters Gulfport’s exhaustion

argument by emphasizing that Written Directive 406 is not

part of his amended complaint and did not exist at the time

Mr. Lee was trespassed. (Doc. # 42 at 2-3, 9-10). Regardless,

“the settled rule is that exhaustion of state remedies is not

a prerequisite to an action under 42 U.S.C. § 1983.” Knick v.

Twp. of Scott, 588 U.S. 180, 185 (2019) (cleaned up).

Taking Mr. Lee’s allegations as true, he has plausibly

alleged that the trespass warnings violate his substantive

due process rights. Therefore, the Court denies Gulfport’s

Motion as to Counts III and IV.

The Court understands that Gulfport’s Motion also seeks

dismissal of Count V under this same theory. The Motion

apparently views Count V as alleging a substantive due process

violation when it is instead alleging a separate First

Amendment retaliation claim relating to Mr. Lee’s arrest.

Accordingly, the Court does not address the argument as to

Count V.

3. Procedural Due Process

Contrary to Gulfport’s position, Mr. Lee also plausibly

states a procedural due process claim as to each trespass

warning. “A Section 1983 procedural due process claim

requires a plaintiff to prove three elements: ‘(1) a

deprivation of a constitutionally-protected liberty or

property interest; (2) state action; and (3)

constitutionally-inadequate process.’” Catron, 658 F.3d at

1266 (finding that a trespass ordinance violated procedural

due process because it did not provide for any type of hearing

or appeal before depriving an individual of his or her right

to be on city property) (citation omitted). In determining

whether the third element is met, the Court balances the

following factors: “First, the private interest that will be

affected by the official action; second, the risk of an

erroneous deprivation of such interest through the procedures

used, and the probable value, if any, of additional or

substitute procedural safeguards; and finally, the

Government’s interest, including the function involved and

the fiscal and administrative burdens that the additional or

substitute procedural requirement would entail.” Mathews v.

Eldridge, 424 U.S. 319, 335 (1976).

First, like in Catron, Mr. Lee “possess[es] a private

liberty interest in lawfully visiting city property that is

open to the public (an interest of which [Mr. Lee] will be

deprived by the issuance of a trespass warning).” Catron, 658

F.3d at 1267; see (Doc. # 28 at ¶¶ 75, 81). Second, “the

parties do not dispute that state action is present.” Catron,

658 F.3d at 1267; see (Doc. # 42 at 16). Lastly, at the motion

to dismiss stage, the Mathews balancing test favors Mr. Lee.

That is, weighing Gulfport’s interests, the allegedly

indefinite or permanent nature of the trespass warnings, the

allegedly absent means for challenging the trespass warnings,

and the resulting risk of erroneous deprivation of liberty,

the Court concludes that Mr. Lee has stated a claim. See

Catron, 658 F.3d at 1267-69 (weighing the Mathews factors in

plaintiffs’ favor and concluding that plaintiffs sufficiently

stated a procedural due process claim relating to trespass

warnings); see also (Doc. # 28 at ¶¶ 39, 41, 66-67, 78).

The Court therefore denies Gulfport’s Motion as to

Counts VI and VII.

4. Vagueness

Gulfport further submits that the trespass policy is not

void for vagueness. A law “can be impermissibly vague for

either of two independent reasons. First, if it fails to

provide people of ordinary intelligence a reasonable

opportunity to understand what conduct it prohibits. Second,

if it authorizes or even encourages arbitrary and

discriminatory enforcement.” Wollschlaeger v. Governor, 848

F.3d 1293, 1319 (11th Cir. 2017). An unconstitutionally vague

law or regulation fails to provide “fair warning as to what

is prohibited,” and consequently encourages “arbitrary and

discriminatory enforcement” by giving a government official

the sole ability to interpret the law or regulation’s scope.

Grayned v. City of Rockford, 408 U.S. 104, 108-09 (1972). To

succeed on a vagueness challenge, the Court must “conclude

that [the policy] is ‘impermissibly vague in all its

applications.’” Catron, 658 F.3d at 1273 (citing Estates v.

Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494–95

(1982)).

Mr. Lee alleges that Gulfport maintains a policy that

“supervisors of individual city facilities are empowered to

issue trespass warnings whenever they have reason to believe

an individual has caused or is likely to cause a disruption

of services or put the safety of staff or the public at risk.”

(Doc. # 28 at ¶¶ 39, 181; Doc. # 28 Ex. 1). Moreover, according

to Mr. Lee, “[n]o standards are established to guide

authorized employees in determining whether an individual” is

causing such a disruption or risk, and “[n]o standards are

established to warn individuals of what conduct may be

considered” such a disruption or risk. (Doc. # 28 at ¶¶ 182-

84). Based on the allegations contained in the amended

complaint, it appears that Mr. Lee’s conduct may not have

been clearly proscribed by the trespass policy. Thus, the

question the Court must answer is whether it is sufficiently

clear “what the [policy] as a whole prohibits . . . in the

vast majority of its intended applications.” Hill v.

Colorado, 530 U.S. 703, 733 (2000). The Court concludes that

it is.

The policy’s ordinary language allowing a trespass

warning to be issued when there is reason to believe an

individual is causing or likely to cause service disruption

or safety risks “is not so broad as to encourage arbitrary or

discriminatory enforcement.” Catron, 658 F.3d at 1272. Even

if Mr. Lee’s conduct was not proscribed by it, there is

conduct that clearly falls within the scope of the trespass

policy. For example, impeding access to a city building or

threatening individuals is conduct that reasonably falls

within the policy’s scope. Thus, the Court “cannot conclude

that the ordinance is facially void for vagueness because

[the Court] cannot conclude that it is ‘impermissibly vague

in all its applications.’” Id. at 1273 (citing Hoffman

Estates, Inc., 455 U.S. at 494–95).

The Court understands that Gulfport’s Motion seeks

dismissal of Count IX, in addition to Counts X and XI, which

Gulfport submits all “brin[g] ‘vagueness’ claims” in relation

to the challenged trespass policy. (Doc. # 29 at 21-23).

However, Mr. Lee’s void for vagueness challenge to the

trespass policy is found in Count VIII, not Count IX.

Accordingly, the Court interprets Gulfport’s vagueness

argument as applying to Count VIII instead.

Therefore, the Court grants Gulfport’s Motion as to the

void for vagueness claim and dismisses Count VIII of the

amended complaint with prejudice. To the extent Count X seeks

declaratory relief regarding the trespass policy being void

for vagueness, that too is dismissed.

5. Injunctive and Declaratory Relief

Gulfport argues that Counts IX through XII are “not yet

ripe” because “it does not appear that [Mr. Lee] intends to

avail himself of available administrative appeals to the City

Manager’s Office.” (Doc. # 29 at 23). Again, Mr. Lee responds

that “there was no ‘administrative appeals process’ in

existence” at the time of his trespass warnings, and that

Gulfport “fails to identify any authority whatsoever

requiring [Mr. Lee] to exhaust administrative remedies before

challenging the constitutionality of [the] trespass

warnings.” (Doc. # 42 at 18-19). Indeed, exhaustion of

administrative state remedies is not required before bringing

an action under 42 U.S.C. § 1983. See Knick, 588 U.S. at 185.

Gulfport’s exhaustion of remedies argument accordingly fails.

Therefore, the Court denies Gulfport’s Motion as to

Counts IX through XII.

B. Mr. O’Reilly’s Motion to Dismiss

Mr. O’Reilly first argues that Mr. Lee failed to state

a claim for his procedural or substantive due process claims.

(Doc. # 47 at 10-17). Second, he argues that Mr. Lee failed

to state a claim for First Amendment retaliation. (Id. at 17-

22). Third, Mr. O’Reilly argues that Count VIII is moot

because the trespass policy has been replaced. (Id. at 22-

25). Additionally, Mr. O’Reilly asserts that he is protected

by qualified immunity. (Id. at 8-10, 17).

1. Procedural and Substantive Due Process

For the reasons already explained, Mr. Lee has stated

plausible claims for both procedural and substantive due

process violations. Therefore, the Court denies Mr.

O’Reilly’s Motion as to these claims.

2. First Amendment Retaliation

Mr. O’Reilly argues that Mr. Lee failed to state a First

Amendment retaliation claim. The Court notes, however, that

Mr. O’Reilly’s Motion contains factual allegations not

included in the amended complaint, seemingly to refute Mr.

Lee’s well-pled factual allegations. For example, Mr.

O’Reilly alleges that there was probable cause for Mr. Lee’s

arrest because he was arrested “based on City officials’ prior

experiences with him.” (Doc. # 47 at 21). The Court must take

Mr. Lee’s well-pled allegations as true and will not consider

Mr. O’Reilly’s contrary allegations at the motion to dismiss

stage. See La Grasta, 358 F.3d at 845 (restricting the Court’s

review “to the well-pleaded factual allegations, documents

central to or referenced in the complaint, and matters

judicially noticed.”).

“To bring a First Amendment claim for retaliation, a

plaintiff generally must show: (1) he ‘engaged in

constitutionally protected speech,’ (2) ‘the defendant’s

retaliatory conduct adversely affected that protected

speech,’ and (3) ‘a causal connection exists between the

defendant’s retaliatory conduct and the adverse effect on the

plaintiff’s speech.’” Jennings v. Smith, No. 23-14171, 2024

WL 4315127, at *4 (11th Cir. Sept. 27, 2024) (citing DeMartini

v. Town of Gulf Stream, 942 F.3d 1277, 1289 (11th Cir. 2019)).

Moreover, “[t]he plaintiff pressing a retaliatory arrest

claim must plead and prove the absence of probable cause for

the arrest.” Nieves v. Bartlett, 587 U.S. 391, 402 (2019).

Taking Mr. Lee’s allegations as true, he has plausibly

alleged that his protected speech – both his right to speak

about “Gulfport’s treatment of people of color and . . .

handling of free speech,” and his right to film law

enforcement officers – were adversely affected by the

allegedly unprompted arrest. (Doc. # 28 at ¶¶ 142, 144, 150).

According to Mr. Lee, he was standing on public property at

the time of his arrest. (Id. at ¶ 89). He further alleges

that Mr. O’Reilly “had a premeditated plan to arrest” Mr. Lee

and that his “arrest was not based upon any legitimate concern

for safety or property but rather [Mr. Lee’s] lengthy history

of criticizing [Gulfport].” (Id. at ¶¶ 143, 147). Mr. Lee has

sufficiently pleaded retaliatory animus and that his arrest

was not supported by probable cause.

The Court thus denies Mr. O’Reilly’s Motion as to the

First Amendment retaliation claim.

3. Mootness

Mr. O’Reilly posits that Count VIII, which asserts that

the trespass policy is void for vagueness, is now moot because

the policy has since been replaced by an ordinance. (Doc. #

47 at 22). “Generally, a challenge to the constitutionality

of a statute is mooted by repeal of the statute.” Coral

Springs St. Sys., Inc. v. City of Sunrise, 371 F.3d 1320,

1329 (11th Cir. 2004). Indeed, “when an ordinance is repealed

by the enactment of a superseding statute, then the

‘superseding statute or regulation moots a case only to the

extent that it removes challenged features of the prior law.’”

Coalition for the Abolition of Marijuana Prohibition v. City

of Atlanta, 219 F.3d 1301, 1310 (11th Cir. 2000).

However, challenged features of the prior policy

allegedly remain here, as Mr. Lee alleges that he is still

banned from City Hall and the Gulfport Building Department

pursuant to the prior policy. (Doc. # 28 at ¶ 80). The case

or controversy thus remains live, and the claim is not moot.

Nevertheless, for the reasons already explained, Count

VIII is dismissed for failure to state a claim.

4. Qualified Immunity

Mr. O’Reilly claims he is entitled to qualified immunity

as to Counts III, IV, VI, and VII because “there was no clear

violation of an established constitutional right alleged.”

(Doc. # 47 at 17).

“The doctrine of qualified immunity protects government

officials ‘from liability for civil damages insofar as their

conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have

known.’” Pearson v. Callahan, 555 U.S. 223, 231 (2009)

(citation omitted). “Qualified immunity protects public

officials from suit in their individual capacities for

reasonable, discretionary actions performed in the course of

their duties.” Johnson v. Houston Cnty. Georgia, 758 F. App’x

911, 915–16 (11th Cir. 2018). “But qualified immunity offers

no protection if the plaintiff can show that the defendant,

even though engaged in a discretionary job duty, violated a

constitutional right that was clearly established at the time

of the misconduct.” Id. at 916. “Generally speaking, it is

proper to grant a motion to dismiss on qualified immunity

grounds when the ‘complaint fails to allege the violation of

a clearly established constitutional right.’” Corbitt v.

Vickers, 929 F.3d 1304, 1311 (11th Cir. 2019).

“To invoke the defense of qualified immunity, a

government official must have been acting within the scope of

his discretionary authority when the allegedly wrongful acts

occurred.” Spencer v. Benison, 5 F.4th 1222, 1230 (11th Cir.

2021). “After a government official establishes that he was

acting within the scope of his discretionary authority, the

burden shifts to the plaintiff to show that the official’s

conduct (1) violated federal law (2) that was clearly

established at the relevant time.” Id. “The ordinary way of

showing that a right is clearly established is by showing

that ‘a materially similar case has already been decided.’”

Bradley v. Benton, 10 F.4th 1232, 1242 (11th Cir. 2021)

(citation omitted).

Mr. O’Reilly established that he was acting within the

scope of his discretionary authority as City Manager when he

informed the police to warn Mr. Lee about his trespass. (Doc.

# 47 at 13-14). However, at this motion to dismiss stage, Mr.

Lee has satisfied his burden of alleging that Mr. O’Reilly

violated his clearly established right to due process. The

Supreme Court held that “the freedom to loiter for innocent

purposes is part of the ‘liberty’ protected by the Due Process

Clause of the Fourteenth Amendment.” City of Chicago v.

Morales, 527 U.S. 41, 53 (1999). Eleventh Circuit precedent

also establishes that there is “a constitutionally protected

liberty interest to be in parks or on other city lands of

their choosing that are open to the public generally.” Catron,

658 F.3d at 1266; see also Peery, 977 F.3d at 1071. Thus, the

right to be on city property that is generally open to the

public for innocent reasons is clearly established.

The amended complaint alleges that the trespass warnings

banning Mr. Lee from City Hall and the Building Department

were issued after innocent conduct – that is, after Mr. Lee

filed a racial discrimination complaint and after he asked

for public records about his tickets, respectively. (Doc # 28

at ¶¶ at 76, 78). Accepting that as true, Mr. O’Reilly did

not have the authority to have Mr. Lee permanently banned

from these city properties.

The Court thus determines that Mr. O’Reilly is not

entitled to qualified immunity at this juncture. Mr. O’Reilly

may, of course, raise the qualified immunity defense again on

a motion for summary judgment.

Accordingly, it is hereby

ORDERED, ADJUDGED, and DECREED:

(1) Defendant City of Gulfport’s Amended Motion to Dismiss

(Doc. # 29) is GRANTED in part and DENIED in part.

(2) Defendant James O’Reilly’s Motion to Dismiss (Doc. # 47)

is DENIED.

(3) Count VIII of the amended complaint (Doc. # 28) is

DISMISSED with prejudice.

DONE and ORDERED in Chambers in Tampa, Florida, this 22nd day

of January, 2025.

VIRGINIA M. HERNANDEZ’COVINGTON

UNITED STATES DISTRICT JUDGE

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