Burno v. Lake Tech Institute of Public Safety

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

OCALA DIVISION

LAMAR BERNARD BURNO,

Plaintiff,

v. Case No: 5:25-cv-58-SPC-PRL

LAKE TECH INSTITUTE OF PUBLIC

SAFETY, LAKE COUNTY SHERIFF’S

OFFICE, FL ATTY GENERAL

ASHLEY MOODY, and PA ATTY

GENERAL MICHELLE HENRY,

Defendants.

REPORT AND RECOMMENDATION1

Plaintiff Lamar Bernard Burno (“Plaintiff”), who is proceeding pro se, filed this action

under 42 U.S.C. § 1983 against Lake Tech Institute of Public Safety (“Lake Tech”); the

Florida Attorney General’s Office; the Pennsylvania Attorney General’s Office; and the Lake

County Sheriff’s Office. (Doc. 1). Plaintiff moved to proceed in forma pauperis. (Doc. 2).

Previously, due to deficiencies noted in the original complaint and the motion to proceed in

forma pauperis, the undersigned took Plaintiff’s motion to proceed in forma pauperis under

advisement, allowing him an opportunity to file an amended complaint and an amended

motion to proceed in forma pauperis. (Doc. 4). Plaintiff has now filed an amended motion to

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)(2); Fed. R. Crim. P. 59(b)(2); 28 U.S.C. § 636(b)(1)(C). 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.

proceed in forma pauperis2 (Doc. 6) and an amended complaint (Doc. 5) against Lake Tech;

Ashley Moody, the Attorney General of the State of Florida,3 in her individual and official

capacity; Michelle Henry, the Attorney General of the State of Pennsylvania,4 in her

individual and official capacity; and the Lake County Sheriff’s Office. Despite being advised

of the deficiencies in the original complaint and the original motion to proceed in forma

pauperis, Plaintiff’s amended complaint and amended motion to proceed in forma pauperis

fail to cure the deficiencies identified in the Court’s previous Order (see Doc. 4). Accordingly,

the undersigned recommends that Plaintiff’s amended motion to proceed in forma pauperis

be denied and this case be dismissed.

I. LEGAL STANDARDS

An individual may be allowed to proceed in forma pauperis if he declares in an

affidavit that he is unable to pay such fees or give security therefor. See 28 U.S.C. § 1915(a)(1).

However, before a plaintiff is permitted to proceed in forma pauperis, the Court is obligated

to review the complaint to determine whether it is frivolous, malicious, fails to state a claim

upon which relief may be granted, or seeks monetary relief against a defendant who is

immune from such relief. See id. § 1915(e)(2). If the complaint is deficient, the Court is

required to dismiss the suit sua sponte. Id.

“A lawsuit is frivolous if the plaintiff’s realistic chances of ultimate success are slight.”

Clark v. Ga. Pardons & Paroles Bd., 915 F.2d 636, 639 (11th Cir. 1990) (internal quotations

2 After filing a motion to proceed in forma pauperis (Doc. 2), Plaintiff filed an amended

motion to proceed in forma pauperis (Doc. 6). The filing of Plaintiff’s amended motion to proceed in

forma pauperis has rendered the original motion to proceed in forma pauperis as moot.

3 The Court notes that as of the entry date of this Order, Ashley Moody no longer serves as

the Attorney General of the State of Florida.

4 The Court notes that as of the entry date of this Order, Michelle Henry no longer serves as

the Attorney General of the State of Pennsylvania.

omitted); see Neitzke v. Williams, 490 U.S. 319, 325 (1989) (stating that an action is frivolous if

“it lacks an arguable basis either in law or in fact”); Jackson v. Farmers Ins. Grp./Fire Ins. Exch.,

391 F. App’x 854, 856 (11th Cir. 2010) (per curiam) (defining a frivolous case as one

containing “clearly baseless” factual allegations or one based on an “indisputably meritless”

legal theory) (quoting Carroll v. Gross, 984 F.2d 392, 393 (11th Cir. 1993) (per curiam)).

“Indigence does not create a constitutional right to the expenditure of public funds and the

valuable time of the courts in order to prosecute an action which is totally without merit.”

Phillips v. Mashburn, 746 F.2d 782, 785 (11th Cir. 1984) (citing Collins v. Cundy, 603 F.2d 825,

828 (10th Cir. 1979)).

In evaluating a complaint under § 1915, a document filed pro se is to be liberally

construed. See Erickson v. Pardus, 551 U.S. 89, 94 (2007). Nevertheless, a complaint must

contain sufficient factual matter, accepted as true, to “state a claim to relief that is plausible

on its face.” See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim has facial

plausibility when the plaintiff pleads factual content, allowing the court to draw the

reasonable inference that the defendant is liable for the alleged misconduct. See id. at 555-56.

The complaint must “give the defendant fair notice of what the . . . claim is and the grounds

upon which it rests” and must provide “more than labels and conclusions, [or] a formulaic

recitation of the elements of a cause of action.” See id. at 555 (citations omitted). While Rule

8(a) of the Federal Rules of Civil Procedure does not require detailed factual allegations, “it

demands more than an unadorned, the defendant-unlawfully-harmed-me accusation.” See

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 555).

II. DISCUSSION

Plaintiff’s amended complaint alleges claims under 42 U.S.C. § 1983 for violations of

his constitutional rights under the Fourth, Fifth, Sixth, and Fourteenth Amendments. (Doc.

5 at p. 1). The defendants in the amended complaint include Lake Tech;5 Ashley Moody, the

Attorney General of the State of Florida, in her individual and official capacity; Michelle

Henry, the Attorney General of the State of Pennsylvania, in her individual and official

capacity; and the Lake County Sheriff’s Office (collectively, “Defendants”). (Doc. 5 at pp. 1-

2). A review of the amended complaint reveals that it still contains the fatal deficiencies

observed in the original complaint.6

As best can be discerned from the sparse allegations in the amended complaint, it

appears that Plaintiff is challenging alleged civil rights violations related to his arrest for

uttering a forged document. (See Doc. 5 at p. 2). Plaintiff alleges that Defendants engaged in

unlawful acts in his wrongful arrest, which was based on (1) a “[f]abricated [a]ffidavit of

5 According to its website, “Lake Tech became a public charter school in July 2004 and is

governed by its Charter Board under the sponsorship of the LCSB as authorized by Florida School

Law 1002.34.” See Lake Technical College, laketech.org/about/mission-2 (last visited April 17,

2025). Under Florida law, “the establishment of charter technical career centers can assist in

promoting advances and innovations in workforce preparation and economic development[,]” and

“the creation of such centers is authorized as part of the state’s program of public education.” See

Fla. Stat. § 1002.34(1). Since a charter technical center like Lake Tech is a type of charter school

under Florida law, Lake Tech is categorized as a public school that is part of the state’s program of

public education. See Fla. Stat. § 1002.34(3)(a) (defining a “[c]harter technical career center” as a

“public school or public technical center operated under a charter granted by a district school board

or Florida College System institution board of trustees or a consortium[.]”).

6 Plaintiff’s original complaint and amended complaint are substantially similar. The main

differences are that the amended complaint (1) includes new defendants in Ashley Moody and

Michelle Henry (see Doc. 5 at p. 2), and omits the Florida Attorney General’s Office and the

Pennsylvania Attorney General’s Office as defendants (see Doc. 1 at p. 2); (2) omits allegations

regarding a “[d]efamatory [t]estimony by Detective Broomes” and “[p]ost-[t]rial [o]bstruction of

[j]ustice” (see Doc. 1 at p. 3); and (3) requests additional injunctive relief (see Doc. 5 at p. 3)

(requesting that the Court “[i]ssue an injunction ordering the Florida Attorney General’s Office and

the Pennsylvania Attorney General’s Office to cease unconstitutional practices, including improper

referrals and prosecutions based on unreliable or unverified allegations”).

[p]robable [c]ause”; (2) “[i]mproper [i]nvolvement of [the] Pennsylvania Attorney General’s

Office”; (3) “[m]alicious [a]llegations by Lamont Bershawn”; (4) “[i]neffective [a]ssistance of

[c]ounsel”; (5) “[p]rosecutorial [m]isconduct”; and (6) “[r]acial [d]iscrmination by [l]aw

[e]nforcement.” (Id.).

To support these claims, and in a wholly conclusory manner without providing factual

allegations, Plaintiff alleges that (1) the Florida Department of Law Enforcement (“FDLE”)

violated his due process rights by “initiat[ing] [his] arrest based on an anonymous and

unverified letter”; (2) the Florida Attorney General’s Office violated his due process rights by

“forward[ing] unsubstantiated allegations to Pennsylvania, leading to [his] wrongful

prosecution”; (3) Lamont Bershawn made “[f]alse claims” that “were accepted without

evidence”; (4) Plaintiff’s attorney provided ineffective assistance of counsel by “fail[ing] to

present crucial evidence”; (5) “[t]he prosecution” committed prosecutorial misconduct by

“suppress[ing] exculpatory evidence and allow[ing] false testimony”; and (6) “[l]aw

[e]nforcement” discriminated against him based on his race, as he “faced racial threats and

intimidation.” (Id.).

As a result of these alleged violations, Plaintiff seeks declaratory and injunctive relief,

and monetary damages, including lost career opportunities. (Id. at pp. 1-3). He requests the

following relief: (1) “[d]eclare that Defendants violated [his] constitutional rights”; (2)

“[o]rder the dismissal of the charge of uttering a forged document”; (3) “[a]ward

compensatory damages for [his] lost career opportunities”; (4) “[d]irect FDLE to certify [his]

law enforcement status and provide his SOCE Exam results”; and (5) “[i]ssue an injunction

ordering the Florida Attorney General’s Office and the Pennsylvania Attorney General’s

Office to cease unconstitutional practices, including improper referrals and prosecutions

based on unreliable or unverified allegations.” (Id. at pp. 2-3).

A. Plaintiff’s Amended Complaint Fails to Comply with the Federal Rules of Civil

Procedure

As a threshold matter, Plaintiff’s amended complaint fails to meet the pleading

requirements set forth in the Federal Rules of Civil Procedure. The amended complaint does

not contain a short and plain statement of the claim showing that the Plaintiff is entitled to

relief as required by Rule 8, nor does it separate each cause of action or claim for relief into

different counts or another organized manner as required by Rule 10. See Fed. R. Civ. P.

8(a)(2), 10(b). Moreover, it is not clear which defendant is sued under which claims and how

each defendant is legally responsible for each of the alleged wrongs. Plaintiff fails to clearly

state what claim or claims he alleges against each defendant and does not tie any specific facts

to any specific defendant. As such, the amended complaint constitutes an impermissible

shotgun pleading. See Weiland v. Palm Beach Cnty. Sheriff’s Off., 792 F.3d 1313, 1320 (11th Cir.

2015) (defining a “shotgun pleading” as a pleading that “violate[s] either Rule 8(a)(2) or Rule

10(b), or both”); Luft v. Citigroup Global Markets Realty Corp., 620 F. App’x 702, 704 (11th Cir.

2015) (“A complaint that fails to comply with Rules 8 and 10 may be classified as a shotgun

pleading.”) (citation and internal quotation marks omitted). Indeed, the amended complaint

fails to give Defendants adequate notice of the claims raised against them and the grounds

upon which they are based. See Weiland, 792 F.3d at 1323. Although Plaintiff is proceeding

pro se, he is “still required to conform to procedural rules, and the court is not required to

rewrite a deficient pleading.” See Washington v. Dept. of Child. & Fams., 256 F. App’x 326, 327

(11th Cir. 2007).

B. Plaintiff Cannot Sue the Lake County Sheriff’s Department Under

42 U.S.C. § 1983

Plaintiff names the Lake County Sheriff’s Department as a defendant in the amended

complaint. (Doc. 5 at p. 1). As the Court explained in its previous Order (see Doc. 4),

Plaintiff’s claims against the Lake County Sheriff’s Office are improper because it is not a

legal entity subject to suit or liability under 42 U.S.C. § 1983. See Dean v. Barber, 951 F.2d

1210, 1214 (11th Cir. 1992) (agreeing with the district court that the sheriff’s department was

not a legal entity, and thus, not subject to suit or liability under § 1983); Spry v. Turner, No.

8:11-CV-531-T-33TGW, 2011 WL 940343, at *2 (M.D. Fla. Mar. 17, 2011) (finding that Polk

County Sheriff’s Department was not a suable entity since “no provision is made

constitutionally or statutorily for a ‘Sheriff’s Department’ as a separate legal entity, as an

agency of the county, or as a corporate entity, nor is a Sheriff’s Department given authority

to be sued in such a name”) (citations omitted); Papa v. City of N. Miami Beach, No. 06-61833-

C.V., 2007 WL 9701041, at *3 (S.D. Fla. Apr. 2, 2007) (explaining that when fulfilling

policing functions, police departments “do[ ] not have the capacity to be sued and dismissal

with prejudice is the appropriate result”). Thus, Plaintiff cannot sue the Lake County Sheriff’s

Office under § 1983.

C. Absolute Prosecutorial Immunity

Next, Plaintiff names Ashley Moody, the Attorney General of the State of Florida, in

her individual and official capacity, and Michelle Henry, the Attorney General of the State of

Pennsylvania, in her individual and official capacity, as defendants in the amended

complaint. (Doc. 5 at p. 2). Plaintiff alleges that the Florida Attorney General’s Office

improperly “forwarded unsubstantiated allegations to [the] Pennsylvania [Attorney General’s

Office], leading to [his] wrongful prosecution.” (Id.). He seeks injunctive relief “ordering the

Florida Attorney General’s Office and the Pennsylvania Attorney General’s Office to cease

unconstitutional practices, including improper referrals and prosecutions based on unreliable

or unverified allegations.” (Id. at p. 3).

“The Eleventh Amendment prohibits federal courts from entertaining suits brought by

citizens against a state, including its agencies and departments, whether the relief sought is

legal or equitable.” See Higdon v. Tusan, 746 F. App’x 805, 809-10 (11th Cir. 2018) (citation

omitted). The Eleventh Amendment bars suits against state officials in their official capacities.

See Kentucky v. Graham, 473 U.S. 159, 169-70 (1985) (citations omitted); see also Regents of the

Univ. of Cal. v. Doe, 519 U.S. 425, 429-30 (1997). “Suits against state officials in their official

capacity are essentially actions against the state.” Higdon, 746 F. App’x at 810 (citing Kentucky,

473 U.S. at 165-166); see Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 101-02 (1984)

(stating that the Eleventh Amendment bars “a suit against state officials that is in fact a suit

against a State . . . regardless of whether it seeks damages or injunctive relief”) (citation

omitted).7

Significantly, “[p]rosecutors enjoy absolute immunity from civil suit for acts within

the scope of their official duties, including suits brought pursuant to 42 U.S.C. § 1983.” See

Kivisto v. Soifer, 2013 WL 5534234, at *2 (S.D. Fla. Oct. 7, 2013) (citing Rehberg v. Paulk, 611

7 Specifically, an action against a State in federal court for damages is barred under the

Eleventh Amendment unless waived by the State or Congress. See Kentucky, 473 U.S. at 169;

Pennhurst State Sch. & Hosp., 465 U.S. at 97-103; In re Burke, 146 F.3d 1313, 1317 (11th Cir. 1998)

(stating that there are well-established exceptions to Eleventh Amendment Immunity, such as “a

state may waive its Eleventh Amendment immunity” or “Congress can abrogate states’ Eleventh

Amendment immunity”). To the extent Plaintiff seeks monetary damages, these exceptions do not

apply here, as Plaintiff does not argue, and the Court does not find, that the State of Florida or the

State of Pennsylvania waived its immunity or that Congress abrogated the States’ immunity in §

1983 cases under the Eleventh Amendment. See Zatler v. Wainwright, 802 F.2d 397, 400 (11th Cir.

1986).

F.3d 828, 837-38 (11th Cir. 2010), aff’d, 566 U.S. 356 (2012)). Prosecutors are entitled to

absolute immunity for actions taken while performing their prosecutorial duties for the State,

including initiating and pursuing a criminal prosecution. See Imbler v. Pachtman, 424 U.S. 409,

424-25, 431 n.33 (1976) (recognizing that a prosecutor’s immunity extends to actions related

to the initiation of a prosecution, including “questions of whether to present a case to a grand

jury, whether to file an information, [and] whether and when to prosecute”). In addition, a

prosecutor is entitled to “absolute immunity from allegations stemming from the prosecutor’s

function as [an] advocate[,]” which “extends to a prosecutor’s acts undertaken in preparing

for the initiation of judicial proceedings or for trial, and which occur in the course of [their]

role as an advocate for the State.” See Hart v. Hodges, 587 F.3d 1288, 1295 (11th Cir. 2009)

(internal quotations and citations omitted).

Prosecutorial immunity, however, “does not apply when the prosecutor acts outside

the ambit of activities intimately associated with the judicial process. . . . [and specifically,]

when a prosecutor is not acting as an officer of the court but is instead engaged in certain

investigative or administrative tasks.” See id. at 1296 (internal quotations omitted) (citing Van

de Kamp v. Goldstein, 555 U.S. 335, 342 (2009)). Such activities include “conducting

investigative work before an arrest,” “making statements to the press,” and “providing legal

advice to police regarding pre-indictment investigation techniques.” See id. (citations omitted).

“Prosecutorial immunity [also] does not apply when a prosecutor knowingly makes false

statements of fact in an affidavit supporting an application for an arrest warrant.” Id. (citing

Kalina v. Fletcher, 522 U.S. 118, 123 (1997)).

Because Plaintiff does not allege any specific allegations against Moody or Henry in

the amended complaint, it is difficult for the Court to discern precisely what unconstitutional

actions the prosecuting attorneys are alleged to have taken other than to, perhaps, initiate and

pursue a criminal prosecution against Plaintiff by forwarding information, which he now

alleges was “unsubstantiated.” (Doc. 5 at p. 2). To the extent Plaintiff’s claims against Moody

and Henry extend to an event in the criminal process, such actions would fall within their

roles as advocates for the State of Florida and Pennsylvania, respectively. See, e.g., Allen v.

Thompson, 815 F.2d 1433, 1434 (11th Cir. 1987) (per curiam) (finding that a prosecutor was

entitled to absolute immunity for forwarding requested information to the Parole

Commission). Plaintiff does not allege any facts suggesting that Moody or Henry were

engaged in any investigative work before his arrest or that they knowingly made false

statements of fact in the affidavit supporting an application for his arrest warrant. As such,

Ashley Moody and Michelle Henry are entitled to absolute immunity, and Plaintiff’s § 1983

claims against them are therefore barred.

D. Plaintiff Fails to State a Claim Under 42 U.S.C. § 1983 Against Lake Tech

Institute of Public Safety

The last remaining defendant named in the amended complaint is Lake Tech, whom

Plaintiff sues under 42 U.S.C. § 1983. (Doc. 5 at p. 1). A civil action under § 1983 “creates a

private right of action to vindicate violations of ‘rights, privileges, or immunities secured by

the Constitution and laws’ of the United States.” See Rehberg v. Paulk, 566 U.S. 356, 361 (2012)

(quoting 42 U.S.C. § 1983). Section 1983 “is not itself a source of substantive rights, but

merely provides a method for vindicating federal rights elsewhere conferred.” See Albright v.

Oliver, 510 U.S. 266, 271 (1994) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)

(internal quotations omitted)).

To state a claim for relief under § 1983, a plaintiff must show that he was deprived of

a right secured under the Constitution or federal law by a person acting under color of state

law. See Griffin v. City of Opa-Locka, 261 F.3d 1295, 1303 (11th Cir. 2001) (citation omitted);

West v. Atkins, 487 U.S. 42, 48 (1988); Arrington v. Cobb County, 139 F.3d 865, 872 (11th Cir.

1998). A municipality is considered a “person” as provided in § 1983, see Monell v. Dep’t of

Social Servs., 436 U.S. 658, 689-90 (1978), and charter schools are treated as municipalities,

see R.W. v. Charter Sch. USA, Inc., No. 18-14405-CIV, 2019 WL 13216131, at *5 (S.D. Fla.

May 23, 2019) (citing Irene B. v. Philadelphia Acad. Charter Sch., No. CIV.A. 02-1716, 2003 WL

24052009, at *11 (E.D. Pa. Jan. 29, 2003)). Therefore, a charter school can be held liable

under § 1983 if a plaintiff identifies a “policy” or “custom” that deprived them of a

constitutional right. See R.W., 2019 WL 13216131, at *5 (quoting Fernandez v. Sch. Bd. of

Miami-Dade Cnty., 201 F. Supp. 3d 1353, 1356 (S.D. Fla. 2016)). In addition, where a plaintiff

seeks to impose liability on one who is not an active participant in the alleged constitutional

deprivation, the plaintiff must allege and establish an affirmative causal connection between

the defendant’s conduct and the constitutional deprivation. See Williams v. Bennett, 689 F.2d

1370, 1380-81 (11th Cir. 1982).

In this instance, Plaintiff does not explain how Lake Tech violated his constitutional

rights, nor does he allege any kind of policy or custom used to deprive him of a constitutional

right.8 Further, Plaintiff does not provide any factual basis that directly connects Lake Tech

to this case, nor does he make a causal connection between Lake Tech and any act that

8 Even if Lake Tech is considered a private party, Plaintiff does not allege any facts

indicating that Lake Tech is a state actor. See Carson v. Wells Fargo Bank, N.A., No. 8:10-CV-2362-

T17-EAJ, 2011 WL 2470099, at *2 (M.D. Fla. June 20, 2011) (“[P]rivate parties are considered state

actors only when they perform a public function, are coerced by the government, or are in such ‘a

position of interdependence with [the State] that [the State] was a joint participant in the

enterprise.’”) (quoting Jackson v. Metro Edison Co., 419 U.S. 345, 357-58 (1974)).

deprived him of a constitutional right. Simply put, the amended complaint fails to contain

sufficient allegations to support a viable § 1983 claim against Lake Tech (or any other

defendant) in this action. Thus, construing his allegations liberally, Plaintiff’s amended

complaint fails to state a plausible claim for relief under § 1983.

E. Incomplete Motion to Proceed in Forma Pauperis

As a final matter, the undersigned observes that Plaintiff’s amended motion to proceed

in forma pauperis (Doc. 6) is deficient. Plaintiff did not use the proper form entitled

“Application to Proceed in District Court Without Prepaying Fees or Costs (Long Form)” on

the Court’s website. As a result, he failed to answer several pertinent questions provided in

the form (including specific information regarding his sources of income, employment

history, bank accounts, assets, expenses, and money owed) or explain why no answer could

be provided. (See Doc. 6). Despite advising Plaintiff of this issue and allowing him an

opportunity to correct the original motion to proceed in forma pauperis (see Doc. 4), he failed

to do so properly.

III. RECOMMENDATION

Accordingly, for the foregoing reasons, it is respectfully recommended that Plaintiff’s

amended motion to proceed in forma pauperis (Doc. 6) be denied and this case be dismissed.

Recommended in Ocala, Florida on April 17, 2025.

PHILIP R. LAMMENS

United States Magistrate Judge

Copies furnished to:

Presiding District Judge

Counsel of Record

Unrepresented Party

Courtroom Deputy