Sheets v. Jimenez

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

FORT MYERS DIVISION

ANDREW BRYANT SHEETS,

Plaintiff,

v. Case No.: 2:24-cv-704-SPC-KCD

KELVIN JIMENEZ, DYLAN J.

RENZ, and CITY OF PUNTA

GORDA,

Defendants.

/

OPINION AND ORDER

Before the Court are two Motions to Dismiss—one filed by the City of

Punta Gorda (“City”) (Doc. 45) and one filed by Officers Kelvin Jimenez and

Dylan Renz (Doc. 46). Plaintiff Andrew Sheets, proceeding pro se,1 responded

to each motion. (Docs. 47, 48). Because this is Plaintiff’s fourth bite at the

apple and he still fails to state a claim, the Court dismisses his case with

prejudice.

1 Although Plaintiff is proceeding without a lawyer, he is no stranger to federal court. See

Sheets v. City of Punta Gorda, Florida, 2:19-cv-484-SPC-MM; Sheets v. City of Punta Gorda,

Florida, 2:22-cv-246-SPC-NPM; Sheets v. Bell, 2:23-cv-35-JLB-KCD; Sheets v. City of Punta

Gorda et al., 2:24-cv-495-JLB-KCD; Sheets v. Prummell et al., 2:24-cv-943-SPC-NPM; Sheets

v. Charlotte County et al., 2:24-cv-958-JES-KCD; Sheets v. City of Punta Gorda et al., 2:25-

cv-61-JLB-KCD; Sheets v. City of Punta Gorda et al., 2:25-cv-130-JLB-KCD; Sheets v. Martin

et al., 2:25-cv-444-SPC-NPM; Sheets v. Lipker et al., 2:25-cv-493-JLB-KCD.

Plaintiff brings this action under 42 U.S.C. § 1983 for violations of his

First Amendment rights. (Doc. 43). Plaintiff is a self-proclaimed citizen

journalist who holds a “government-accountability” viewpoint.2 In August

2020, he entered the Punta Gorda Public Safety Complex to file a complaint.

All the while, he was video recording this experience with a body camera.

However, a city ordinance prohibits “record[ing] video and/or sound within

City-owned, controlled, and leased property, without the consent of all persons

whose voice or image is being recorded.” Punta Gorda Code § 15-48(e).

Because Plaintiff was recording when he entered the Public Safety Complex,

Officer Jimenez asked Plaintiff to step outside, explaining to Plaintiff that he

cannot be inside while recording. Two months later, Plaintiff entered the same

building to conduct a records request and engaged in the same conduct. This

time, Officer Renz issued Plaintiff a trespass warning (Doc. 43 ¶ 44) for

violating the Ordinance.3 (Doc. 43).

Plaintiff feels the Officers do not neutrally enforce the Ordinance. As

evidence to this effect, he points to an instance in which Officers Renz and

2 This is the newest rendition of Plaintiff’s alleged viewpoint. In his prior complaint, he held

an “anti-police” and “anti-government” viewpoint. (Doc. 29). And his complaints before that

did not allege his viewpoint at all.

3 Defendants attached as an exhibit to their motions some of Plaintiff’s video recordings from

the dates in questions. Plaintiff does not dispute the videos’ authenticity, so the Court can

consider them. See Clark v. Collier Cnty. Sheriff Kevin Rambosk, No. 2:24-CV-692-SPC-

NPM, 2025 WL 589241, at *3 (M.D. Fla. Feb. 24, 2025) (considering body camera footage at

the motion to dismiss stage).

Jimenez permitted a media crew from a local news station into the Public

Safety Complex’s back office to film a story. (Doc. 43 ¶ 14). Similarly, Officer

Renz took part in a news story that another local media crew recorded at the

Public Safety Complex.4 (Id. ¶¶ 37–39). Because these media crews—who

were not reporting on government accountability—were not trespassed or

asked to leave for recording inside the City-owned building, Plaintiff believes

the reason Officer Jiminez and Renz precluded him from recording is because

of his government-accountability viewpoint.

Based on this purportedly inconsistent treatment, Plaintiff sues the

Officers in their individual capacity under § 1983 claiming they violated his

First Amendment rights by engaging in viewpoint discrimination. He also

brings a Monell claim against the City for failure to train its employees.

Defendants move to dismiss the claims. The Officers argue that Plaintiff fails

to state a viewpoint-discrimination claim and that they are entitled to qualified

immunity. (Doc. 46). The City argues Plaintiff fails to state a claim against it.

(Doc. 45).

To survive a Federal Rule of Civil Procedure 12(b)(6) motion, a complaint

must allege “sufficient factual matter, accepted as true, to state a claim to relief

4 Because the screen shots of and links to the videos are included in the third-amended

complaint, the Court may consider them at this stage. See One for Israel v. Reuven, No. 21-

61475-CIV, 2022 WL 4465389, at *4 (S.D. Fla. Sept. 26, 2022).

that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Bare

“labels and conclusions, and a formulaic recitation of the elements of a cause

of action,” do not suffice. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).

A district court should dismiss a claim when a party does not plead facts that

make the claim facially plausible. See id. at 570. A claim is facially plausible

when a court can draw a reasonable inference, based on the facts pled, that the

opposing party is liable for the alleged misconduct. See Iqbal, 556 U.S. at 678.

This plausibility standard requires “more than a sheer possibility that a

defendant has acted unlawfully.” Id. (citing Twombly, 550 U.S. at 557

(internal quotation marks omitted)).

First up, Plaintiff’s viewpoint-discrimination claims. “A restriction on

speech constitutes viewpoint discrimination ‘when the specific motivating

ideology or the opinion or perspective of the speaker is the rationale for the

restriction.’” Jackson v. McCurry, 762 F. App’x 919, 930 (11th Cir. 2019)

(quoting Rosenberger v. Rector & Visitors of Univ. of Vir., 515 U.S. 819, 829

(1995)). The Eleventh Circuit has already found the Ordinance to be

viewpoint-neutral and reasonable and thus constitutional. See Hoffman v.

Delgado, No. 23-13213, 2025 WL 25856, at *3 (11th Cir. Jan. 3, 2025). In such

a circumstance, when the law or policy is constitutional, a plaintiff’s viewpoint-

discrimination claim hinges on “whether the policy was: (1) used in a way that

discriminated based on a speaker’s viewpoint, or (2) enforced arbitrarily.”

Matacchiero v. McCormick, No. 3:24CV105-TKW-ZCB, 2024 WL 3629442, at

*5 (N.D. Fla. Aug. 1, 2024) (citations omitted). This is what Plaintiff asserts

here.

Boiled down, Plaintiff argues the Officers restricted his access to the

Public Safety Complex for violating the Ordinance because of his government-

accountability viewpoint while granting access to other journalists recording

stories unrelated to government accountability. This is a selective-

enforcement claim. Cf. Matacchiero, 2024 WL 3629442, at *5 (“Plaintiff does

not argue that the public comment restrictions in the WCBCC meeting policies

facially discriminated against his viewpoint; he only argues that Defendant

selectively enforced the restrictions against him because of his viewpoint.”).

Despite the Court allowing Plaintiff multiple attempts, Plaintiff again

fails to state a selective-enforcement claim. “To state a claim for selective

enforcement, a plaintiff must make a prima facie showing that he has been

singled out for prosecution although others similarly situated, who have

committed the same acts, have not been prosecuted.” Bryan Media, Inc. v. City

of St. Petersburg, No. 8:05-CV-291-T-MSS, 2006 WL 8440094, at *5 (M.D. Fla.

Dec. 11, 2006), aff’d, 293 F. App’x 717 (11th Cir. 2008). Indeed, “[a] critical

element of a selective enforcement claim is that a comparator or, in other

words, ‘others similarly situated’ have been treated differently than the

plaintiff.” Shadow Oaks, LLP v. City of Ocala, No. 5:21-CV-564-ACC-PRL,

2022 WL 22247808, at *5 (M.D. Fla. Nov. 4, 2022), report and recommendation

adopted, 2022 WL 22247805 (Dec. 1, 2022). But Plaintiff has alleged no

adequate comparators.

Plaintiff points to the two news stories filmed in the Public Safety

Complex, which Officers Renz and Jimenez apparently permitted. As Plaintiff

sees it, the fact the media crews who filmed these stories were not cited under

the Ordinance for recoding in the Public Safety Complex (but he was) reveals

the selective nature of its enforcement. However, Plaintiff and the media crews

are not similarly situated.

According to the trespass warning included in Plaintiff’s third-amended

complaint, he violated the Ordinance not only on the date in question, but also

on five prior occasions. (Doc. 43 ¶ 44). Conversely, the media members

Plaintiff points to were clearly invited to conduct the news stories in the Public

Safety Complex and thus had consent to record.5 This consent means the

media crews never violated the Ordinance, which only precludes video and

sound recording within City property “without the consent of all persons whose

voice or image is being recorded.” See Punta Gorda Code § 15-48(e) (emphasis

added). So the reason these journalists were not cited under the Ordinance is

5 Plaintiff acknowledges this consent when he alleges that “other journalists . . . were even

invited to film[.]” (Doc. 43 at 25).

simple—they did not violate it. This is contrary to Plaintiff, who apparently

has a history of unconsented recording.6

On a similar score, there is another clear distinction between Plaintiff

and the media members. As the allegations in the third-amended complaint

and incorporated videos reveal, the local news crews recorded interviews for

televised news stories, which explains why they were welcomed into the Public

Safety Complex. Plaintiff, however, was not recording a news story. He was

simply filming his actions and the actions of those around him with a body

camera and without prior notice or consent. So the circumstances are not the

same.7 Cf. Matacchiero, 2024 WL 3629442, at *6 (“[B]ecause the incidents

involving Plaintiff and Mr. Curry are not comparable, Plaintiff cannot show

viewpoint discrimination based on selective enforcement.”).

Ultimately, Plaintiff fails to allege any facts suggesting his proffered

comparators were similarly situated to him or that the Officers selectively

enforced the Ordinance against him because of his “government

6 Plaintiff’s third-amended complaint and his response attack the legitimacy of the trespass

warning he was issued. But this has no bearing on his selective-enforcement claims.

7 Plaintiff also references a few other instances in which other “government accountability

journalists” were cited under the Ordinance. (Doc. 43 ¶¶ 58–69). But given these

“journalists” share the same viewpoint as Plaintiff, they are not adequate comparators. See

Matacchiero, 2024 WL 3629442, at *6 (comparator must hold a different viewpoint than the

plaintiff for selective-enforcement claim). And the hyperlinked videos confirm that, like

Plaintiff, these “journalists” were recording their own actions within the Public Safety

Complex rather than covering an approved news story. What’s more, Plaintiff fails to allege

Officers Renz or Jiminez had any involvement with these additional instances.

accountability” viewpoint. The Court thus dismisses these claims against the

Officers.8 See K&w Prop. Grp., LLC v. City of Temple Terrace, No. 8:23-CV-

1304-CEH-TGW, 2024 WL 4025267, at *11 (M.D. Fla. Sept. 3, 2024)

(dismissing selective-enforcement claim because the plaintiff “fail[ed] to

plausibly allege a similarly situated comparator”); Maldonado v. Town of

Cottonwood, No. 1:21-CV-645-ECM, 2023 WL 6377295, at *10 (M.D. Ala. Sept.

29, 2023) (dismissing the plaintiff’s selective-enforcement claim because she

failed to “identify a fact supporting her conclusion that the Officers selectively

enforced the law based on gender, perceived race, or economic status”).

One other issue is worth mentioning. Plaintiff’s claim against Officer

Renz still hinges on his allegation that Officer Renz issued him a trespass

warning for violating the Ordinance. (Doc. 43 ¶¶ 88, 91–93). But the Court

previously found (and Plaintiff previously conceded), that this is not true. (Doc.

35 at 8). The trespass warning established that Officer Renz did not issue the

trespass warning to Plaintiff—another officer did. Nevertheless, Plaintiff

continues to base his claim against Officer Renz on this false premise. This

provides yet another reason for dismissing the selective-enforcement claim

against Officer Renz.

8 The Officers argue they are entitled to qualified immunity on Plaintiff’s viewpoint-

discrimination claims. (Doc. 46). But since Plaintiff fails to state a claim, the Court need not

reach the qualified-immunity analysis.

Next is Plaintiff’s Monell claim against the City. Because Plaintiff fails

to show the Officers violated his constitutional rights, as a matter of law, his

Monell claim against the City fails. See Henning v. Walmart Stores Inc., 738

F. App’x 992, 999 (11th Cir. 2018) (“Without evidence that his constitutional

rights were violated, Henning’s § 1983 municipal liability claim against

Brevard County fails as a matter of law.”); Reid v. Henry Cnty., Ga., 568 F.

App’x 745, 749 (11th Cir. 2014) (concluding that because the plaintiff did not

suffer a constitutional deprivation, he could not recover from the County under

§ 1983).

The Court warned Plaintiff that his third-amended complaint was his

final chance to get this case off the ground. (Doc. 35 at 11). Because he still

fails to state a claim, the Court dismisses this case with prejudice. See

Mandala v. Tire Stickers, LLC, 829 F. App’x 896, 903 (11th Cir. 2020) (“A

district court need not allow an amendment where there has been repeated

failure to cure deficiencies by amendments previously allowed.” (cleaned up)).

Accordingly, it is now

ORDERED:

1. Defendants’ Motions to Dismiss (Docs. 45, 46) are GRANTED.

2. Plaintiff’s case is DISMISSED with prejudice.

3. The Clerk is DIRECTED to deny any pending motions as moot,

terminate any deadlines, and close the case.

DONE and ORDERED in Fort Myers, Florida on June 20, 2025.

tit WOblatet he

UNITED STATES DISTRICT JUDGE

Copies: All Parties of Record

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