# Lee v. Gulfport City Of

> District Court, M.D. Florida · January 22, 2025

URL: https://www.frixlaw.com/law-library/cases/10786026

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** January 22, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10786026

## How later opinions describe it (automated extraction)

- 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

## Opinion text

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

23

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10786026. Public record. Not legal advice.