# Sheets

> District Court, M.D. Florida · October 28, 2025

URL: https://www.frixlaw.com/law-library/cases/11180200

## Case

- **Full name:** Andrew Bryant Sheets v. Michael Kyle Martin and Lauren Hertz
- **Court:** District Court, M.D. Florida
- **Decided:** October 28, 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/11180200

## How later opinions describe it (automated extraction)

- applying the Bostick framework to passengers is a vehicle during a traffic stop
- explaining to prevail on a First Amendment retaliation claim, the plaintiff must show the adverse action would not have been taken against the plaintiff “but for” the retaliatory motive

## Opinion text

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION

ANDREW BRYANT SHEETS,

Plaintiff,

v. Case No.: 2:25-cv-444-SPC-NPM

MICHAEL KYLE MARTIN and
LAUREN HERTZ,

Defendants.
/

OPINION AND ORDER
Before the Court are two motions to dismiss—one filed by Lauren Hertz
(“Hertz”) (Docs. 47, 48) and one filed by Michael Kyle Martin (“Deputy Martin”)
(Doc. 49). Plaintiff Andrew Sheets, proceeding pro se,1 responded to each
motion. (Docs. 50, 51). For the reasons below, the Court grants the motions.

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; Sheets v. City of Punta Gorda
et al., 2:24-cv-495-KCD-DNF; Sheets v. Jimenez et al., 2:24-cv-704-SPC; Sheets v. Prummell
et al., 2:24-cv-943-SPC-NPM; Sheets v. Charlotte County et al., 2:24-cv-958-JES-DNF; Sheets
v. City of Punta Gorda et al., 2:25-cv-61-KCD-DNF; Sheets v. City of Punta Gorda et al., 2:25-
cv-130-KCD-DNF; Sheets v. Lipker et al., 2:25-cv-493-KCD-DNF; Sheets v. Pribble, 2:25-cv-
500-KCD-NPM; Sheets v. Woelk et al., 2:25-cv-578-SPC-NPM; Sheets v. Gorman et al., 2:25-
cv-583-SPC; Sheets v. Woelk et al., 2:25-cv-611-SPC-NPM; Sheets v. Gorman et al., 2:25-cv-
612-KCD-NPM; Sheets v. Angelini et al., 2:25-cv-653-SPC-NPM; Sheets v. Angelini et al.,
2:25-cv-644-KCD-DNF; Sheets v. Gray, et al., 2:25-cv-667-JES-DNF.
Background
This is a case about alleged viewpoint discrimination and retaliation due

to a protest. The setting is a public sidewalk just outside of Vineland
Elementary School in Charlotte County, Florida, during parent pickup.
Plaintiff is protesting a school resource officer who purportedly viewed porn
while on duty and a teacher (who happens to be the Charlotte County Sheriff’s

wife) who supposedly condoned such conduct. Because Plaintiff finds this
conduct reprehensible, he displays two signs outside the elementary school to
inform parents of the conduct taking place at the school.
For context, one sign depicts Charlotte County Sheriff Bill Prummell

with a Hitler mustache, his wife (the teacher Plaintiff was protesting), a large
cutout of four provocative2 women with the Pornhub logo, and the caption “DID
TARA PRUMMELL SAY ITS FINE 4 COPS 2 LOOK AT PORN AT SCHOOL.”
The other sign includes an image of Sheriff Prummell and a female deputy

sandwiched between two images of Sheriff Prummell with a Hitler mustache,
and a large caption “DID SHERIFF BILL PRUMELL HAVE MULTIPLE
ILLEGAL AFFAIRS AT WORK.” Plaintiff also dons a shirt that says, “Fuck
the Police.” (Video Exhibit (hereinafter “VE”) 00:53; Doc. 49-1; Doc. 49-2).

2 No nudity is depicted.
Available video footage3 begins around 1:56 p.m.4 Plaintiff is holding his
sign at a corner where the elementary school exits onto the main road. Over

the next half-hour, parents passing by while picking up their children from the
school voice their displeasure with Plaintiff generally and with Plaintiff’s sign,
which they feel is not appropriate for school-aged children. No parent audibly
expresses disagreement with Plaintiff’s message or viewpoint. Still, Plaintiff

provides a variety of vulgar responses to these parents, such as telling them to
“get on the train like the Jews,” that they “don’t deserve to live,” and that they
are “un-American.” He frequently tells them to “fuck off,” says “fuck you and
your mother” and calls them terms like “bitch,” “cunt,” and “Nazi.” Traffic

often backs up as cars stop to observe Plaintiff or make comments to him. (VE
6:05–14:58).

3 Deputy Martin submitted a flash drive containing video footage of the incident with his
motion to dismiss. (Doc. 20). The Court can consider the video footage at this stage as it is
central to Plaintiff’s claim and not disputed—nor can Plaintiff reasonably dispute the footage
given it comes from his body camera, and he references it (with specific time stamps) in the
second amended complaint. Johnson v. City of Atlanta, 107 F.4th 1292, 1300 (11th Cir. 2024);
see also 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 officer’s body camera footage at motion
to dismiss stage in § 1983 action).
The video cuts at various points, meaning it does not show the entirety of Plaintiff’s
protest. However, it includes all the incidents referenced in Plaintiff’s second amended
complaint. The video and Plaintiff’s allegations are largely consistent, but where they
contradict, the video governs. See Swinford v. Santos, 121 F.4th 179, 190 (11th Cir. 2024)
(“Where a video is clear and obviously contradicts the plaintiff’s alleged facts, we accept the
video’s depiction instead of the complaint’s account and view the facts in the light depicted
by the video.” (cleaned up and citation omitted)).

4 The Court applies the time as depicted in the video footage.
At around 2:18 p.m., Hertz enters the scene. As she exits the school—
with her son—they are forced to walk past Plaintiff. She asks Plaintiff to turn

his sign around because she does not want her son to see it. Plaintiff responds
by telling her to “get on the train like the Jews did,” to go “talk to the cops,”
that she does “not deserve to be alive,” and to “fuck off and die.” He adds that
if Hertz were an American, she would believe in free speech, calls her a dumb

bitch, and then tells her, “don’t be a cunt.” (VE 10:50–11:27).
While Plaintiff uses some colorful language, he also receives some. At
one point, a man in a truck exiting the school with his young child in the back
seat tells Plaintiff not to show his sign outside the school and refers to Plaintiff

as an “asshole.” Plaintiff responds by telling the driver to “get on the train like
the Jews did.” (VE 11:37–11:48). Later, a man in a red car pulls up alongside
Plaintiff as he walks down the sidewalk. The man reminds Plaintiff he is in
front of an elementary school and says, “you obviously don’t have children.”

During the exchange, traffic backs up behind the man. The man then pulls off
the road in front of Plaintiff and asks, “what’s wrong with you?” Plaintiff then
grabs hold of a can of Frontiersman bear spray. (VE 13:04–13:58). Another
woman in a black SUV criticizes Plaintiff, tells him to shut up, and reminds

him that he is in front of an elementary school. Plaintiff responds by telling
her to fuck off and calling her an “un-American cunt.” (VE 14:06–14:50).
At around 2:31 p.m., Deputy Martin approaches Plaintiff. The
interaction is brief, totaling just over a minute. He hands Plaintiff a copy of

Fla. Stat. § 810.0975.5 He then informs Plaintiff that he is in a school safety
zone (as defined in the statute). Plaintiff argues that protesting is legal under
the statute.6 Deputy Martin responds that protesting is not legal and advises
Plaintiff: “if you don’t have a legitimate business here, then you can’t be here.”

(VE 1:16–1:50). Plaintiff then walks away from Deputy Marin and leaves the
premises, calling Deputy Martin a “fucking liar” and shouting other expletives
along the way. (VE 1:50–2:21).
Deputy Martin never arrests Plaintiff. And while Deputy Martin first

approached Plaintiff at 2:31 p.m., an unidentifiable deputy from the Charlotte
County Sheriff’s Office was present on scene starting around 2:10 p.m. (VE
7:40 (depicting officer’s vehicle pulling up)). Thus, Plaintiff protested in a
deputy’s presence for (at least) twenty minutes before Deputy Martin showed

him a copy of the statute.

5 This statute makes it a crime for a person to enter or remain in a “school safety zone”
(meaning in or within 500 feet of a school) from one hour before the start of school session
until one hour after the conclusion of school session when the person does not have
“legitimate business in the school safety zone” or other authorization to be there. Fla. Stat.
§ 810.0975(1)–(2). The term “legitimate business in a school safety zone” means having a
purpose “which is connected with the operation of any areas included within the school safety
zone[.]” Meinecke v. State, 351 So. 3d 1196, 1201 (Fla. Dist. Ct. App. 2022) (internal
quotations and citations omitted).

6 Plaintiff is referring to Fla. Stat. § 810.0975(3), which states: “This section does not abridge
or infringe upon the right of any person to peaceably assemble and protest.” Plaintiff
understands this as an exception for protesters.
The next day, Hertz issues a report to Deputy Martin (Doc. 49-2 at 5),
which Plaintiff claims included several false statements. Deputy Martin

nevertheless includes Hertz’s statements in his incident report. (Doc. 49-2).
Plaintiff also believes Deputy Martin omitted several material facts from the
incident report. Deputy Martin and Hertz allegedly agreed to orchestrate this
false report as part of a conspiracy to infringe on Plaintiff’s First Amendment

rights. Because of the incident report, Plaintiff became fearful and ceased all
future protests at the school.
Plaintiff brings claims against Deputy Martin under 42 U.S.C. § 1983 for
viewpoint discrimination (count I), First Amendment conspiracy (count II),

First Amendment retaliation (count III), and Fourth Amendment false arrest
(count IV). He also brings claims against Hertz for filing a false police report
in violation of Fla. Stat. § 837.05 (count V) and conspiracy to violate the First
Amendment (count VI). (Doc. 45). Defendants move to dismiss these claims.

Deputy Martin raises a qualified immunity defense, argues Plaintiff fails to
state a claim, and argues the second amended complaint is a shotgun pleading.
(Doc. 49). Hertz argues Plaintiff fails to state a claim. (Doc. 48).
Legal Standard

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
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)).
Analysis

Right out of the starting blocks, the Court dismisses Plaintiff’s second
amended complaint because it is a shotgun pleading. “Shotgun pleadings are
cumbersome, confusing complaints that do not comply with [the] pleading
requirements.” Behr v. Uthmeier, No. 25-80915-CIV, 2025 WL 2552616, at *1

(S.D. Fla. Sept. 5, 2025) (citations omitted). Plaintiff’s second amended
complaint warrants this label because it does not indicate which facts are
assigned to which claim. This is improper. See Chudasama v. Mazda Motor
Corp., 123 F.3d 1353, 1359 n. 9 (11th Cir.1997) (finding a shotgun pleading

where “a reader of the complaint must speculate as to which factual allegations
pertain to which count”); DeJean v. Kelly, No. 8:22-CV-0461-KKM-TGW, 2022
WL 1188404, at *1 (M.D. Fla. Apr. 21, 2022) (finding a shotgun pleading when
“it is entirely unclear which allegations go with which claims in [the] Amended
Complaint”). “Courts in the Eleventh Circuit have little tolerance for shotgun

pleadings.” Vibe Micro, Inc. v. Shabanets, 878 F.3d 1291, 1295 (11th Cir. 2018).
Given Plaintiff’s extensive experience in federal court, he should be well versed
with the pleading standards.
Despite the lack of clarity in Plaintiff’s pleading, the Court presses on to

the merits. Up first is Plaintiff’s viewpoint-discrimination claim (count I). “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)). To prevail on his claim, Plaintiff must allege facts showing Deputy
Martin would not have instructed Plaintiff to leave the premises but for
Plaintiff’s viewpoint. See Nieves v. Bartlett, 587 U.S. 391, 416 (2019) (Gorsuch,

J., concurring) (“To show an arrest violated the First Amendment, everyone
agrees a plaintiff must prove the officer would not have arrested him but for
his protected speech.”). Plaintiff’s allegations do not meet this threshold.
As best the Court can surmise, Plaintiff believes Deputy Martin

compelled Plaintiff to leave the school safety zone (thereby restricting him from
protesting) solely because he disagreed with the message on Plaintiff’s signs.
But he provides no facts to support this belief. Plaintiff offers only allegations
that Deputy Martin (1) concealed the exemption to § 810.0975 when he handed
Plaintiff the statute; (2) falsely arrested him; and (3) supported counter-

protesters who disagreed with Plaintiff’s viewpoint. (Doc. 45 ¶¶ 40–41). This
is insufficient.
The allegations do not support a viewpoint discrimination claim.
Plaintiff’s assertion that Deputy Martin concealed the exemption to

§ 810.0975,7 at most, suggests Deputy Martin was being less than forthright
and that any arrest may have been unlawful. But Plaintiff’s insinuation that
this concealment means Deputy Martin disagreed with Plaintiff’s viewpoint—
as opposed to simply wanting Plaintiff to leave the school safety zone during

parent pickup because of the resulting disruption—is a bridge too far.8 On that
score, Plaintiff’s assertion that his false arrest constitutes viewpoint
discrimination falls flat because Plaintiff was never arrested or seized. And

7 Plaintiff maintains that § 810.0975(3) exempts protesters under the statute. Assuming,
without deciding, that Plaintiff is correct, and Deputy Martin erroneously cited § 810.0975
when instructing Plaintiff to leave the school safety zone, the purported unlawfulness of
Deputy Martin’s command is irrelevant to a viewpoint discrimination claim. Rather, the
relevant inquiry is whether Deputy Martin’s conduct was motivated by Plaintiff’s viewpoint.
Cf. Sheets v. Jimenez, No. 2:24-CV-704-SPC-KCD, 2025 WL 2161684, at *1 (M.D. Fla. July
30, 2025) (explaining that, for a selective enforcement claim based on viewpoint, “[i]t matters
not whether the prosecution, or in this case the trespass warning, was legitimate. The
relevant inquiry is whether others similarly situated were not cited . . . under the
ordinance.”).

8 What’s more, Plaintiff’s allegation that Deputy Martin concealed the exemption is confusing
given Deputy Martin handed Plaintiff a copy of the statute.
even if he was, a false arrest, without more, does not plausibly allege viewpoint
discrimination.

Plaintiff’s attempt to allege comparators fares no better. As mentioned,
he alleges that Deputy Martin supported counterprotesters who disagreed
with Plaintiff’s viewpoint.9 But these “counterprotesters” were parents voicing
their opinions from their cars or on the sidewalk. As parents of the students,

they had “legitimate business in the school safety zone” (as the term is used in
§ 810.0975), i.e., picking up their children from the school. Plaintiff, who was
simply there protesting, did not. And unlike Plaintiff, the “counterprotesters”
were merely passing by as opposed to loitering on the corner protesting. Thus,

Deputy Martin had no reason to instruct the parents to leave the school safety
zone for violating § 810.0975, as he did with Plaintiff.
That’s not all. Despite Plaintiff’s allegation that the counterprotesters
disagreed with Plaintiff’s viewpoint, none of the parents who made passing

comments to Plaintiff expressed or otherwise indicated disagreement with
Plaintiff’s viewpoint or message. Rather, each was troubled with Plaintiff’s
display, which they perceived as inappropriate for elementary-age children.
Plaintiff alleges no facts to suggest otherwise.

9 Plaintiff does not allege any facts explaining how Deputy Martin “supported” the counter-
protesters. But construing his second amended complaint liberally, the Court presumes he
means that Deputy Martin treated the parents more favorably because he agreed with the
parents’ disdain for Plaintiff’s viewpoint.
One more point about comparators. Plaintiff complains that the
“counterprotesters” committed various traffic infractions and used profanity,

yet Deputy Martin took no action against them. But Plaintiff was not cited for
a traffic infraction or for using profanity either. Rather, Deputy Martin
instructed Plaintiff to leave the school safety zone because Plaintiff had no
legitimate school-related business (in violation of § 810.0975). As mentioned

above, the same is not true of the parents/alleged counterprotesters. So there
was no disparate treatment. Put simply, the “counterprotesters” and Plaintiff
are not similarly situated. Cf. Sheets v. Jimenez, No. 2:24-CV-704-SPC-KCD,
2025 WL 1725954, at *3 (M.D. Fla. June 20, 2025) (dismissing Plaintiff’s First

Amendment selective-enforcement claim because, unlike Plaintiff, the alleged
comparators did not violate the ordinance under which Plaintiff was cited and
engaged in entirely different conduct); 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.”).
In sum, Plaintiff fails to allege any facts suggesting Deputy Martin
approached Plaintiff because he disagreed with Plaintiff’s viewpoint. Indeed,

the video footage suggests otherwise. So Plaintiff’s viewpoint discrimination
claim fails, and the Court dismisses it without prejudice.
Next, Plaintiff brings a § 1983 conspiracy claim (count II), alleging that
Deputy Martin and Hertz conspired to violate his First Amendment rights. “A

plaintiff may state a § 1983 claim for conspiracy to violate constitutional rights
by showing a conspiracy existed that resulted in the actual denial of some
underlying constitutional right.” Grider v. City of Auburn, Ala., 618 F.3d 1240,
1260 (11th Cir. 2010) (citation omitted). “The plaintiff attempting to prove

such a conspiracy must show that the parties reached an understanding to
deny the plaintiff his or her rights.” Id. (citation and quotations omitted). “The
conspiratorial acts must impinge upon the federal right; the plaintiff must
prove an actionable wrong to support the conspiracy.” Id.

Plaintiff’s conspiracy claim (as best the Court understands it) fails. He
alleges that Hertz gave a false report to Deputy Martin, which Deputy Martin
then included in the incident report, and that Deputy Martin excluded
material details from the incident report. He broadly alleges that the two “had

an understanding.” (Doc. 45 ¶ 50). And he appears to claim that the incident
report caused him to become fearful and, consequentially, cease all future
protests in front of Vineland Elementary School. (Doc. 45 ¶¶ 42–51). These
allegations are inadequate.

The first problem with Plaintiff’s conspiracy claim is he fails to allege
facts demonstrating Deputy Martin and Hertz came to an agreement. Rather,
he conclusorily asserts that the two “had an understanding” with no facts to
support this. See N.R. by Ragan v. Sch. Bd. of Okaloosa Cnty., Fla., 418 F.
Supp. 3d 957, 999 (N.D. Fla. 2019) (“Conclusory allegations of an agreement,

without any factual basis to make the allegations plausible, are insufficient to
state a conspiracy claim.”). And the simple fact that Hertz provided a
statement to Deputy Martin that he incorporated into his report is not enough
to suggest the two reached an understanding to deprive Plaintiff of his First

Amendment rights. See Ghee v. Comcast Cable Commc’ns, LLC, No. 22-12867,
2023 WL 3813503, at *2 (11th Cir. June 5, 2023) (“Though circumstantial
evidence can help prove a section 1983 conspiracy, the complaint must make
particularized allegations that a conspiracy existed.” (internal citation

omitted)). Without more, Plaintiff fails to satisfy this element.
Nor does Plaintiff plausibly allege the purported conspiracy impinged his
First Amendment rights. He seems to claim the incident report caused him to
become fearful, so he ceased all future protests in front of the school.10 But

Plaintiff’s subjective fear and voluntary decision to cease future protests is not
an “actual denial” of his constitutional right. Grider, 618 F.3d at 1260. So the
Court dismisses count II without prejudice.

10 Notably, this fear did not stop Plaintiff from protesting outside of a different elementary
school two months later. See Sheets v. Angelini et al., 2:25-cv-653-SPC-NPM (Plaintiff’s
viewpoint discrimination, retaliation, and false arrest lawsuit after he was convicted of
breach of peace and disruption of a school function during protest outside Sallie Jones
Elementary School on July 22, 2021).
Turning now to Plaintiff’s retaliation claim (count III). “Retaliation
against the exercise of First Amendment rights is a well-established basis for

section 1983 liability.” O’Boyle v. Sweetapple, 187 F. Supp. 3d 1365, 1370 (S.D.
Fla. 2016) (citing Bennett v. Hendrix, 423 F.3d 1247, 1255–56 (11th Cir.2005)).
“The elements of a First Amendment retaliation claim are (1) the plaintiff
engaged in speech or an act that was constitutionally protected, (2) the

defendant’s retaliatory conduct adversely affected the protected speech or act,
and (3) there is a causal connection between the retaliatory actions and the
adverse effect on the constitutionally-protected speech or act.” Id. To satisfy
the last element, “the plaintiff must show that the defendant was subjectively

motivated to take the adverse action because of the protected speech.” Castle
v. Appalachian Tech. Coll., 631 F.3d 1194, 1197 (11th Cir. 2011).
Plaintiff fails to satisfy the causal element of a retaliation claim. As
discussed in his viewpoint discrimination claim, he alleges no facts suggesting

Deputy Martin instructed Plaintiff to leave the premises because of his
protected speech—as opposed to his belief Plaintiff was violating § 810.0975
and the resulting disruption to parent pickup. See Nieves, 587 U.S. at 399
(explaining to prevail on a First Amendment retaliation claim, the plaintiff

must show the adverse action would not have been taken against the plaintiff
“but for” the retaliatory motive). So this claim also fails, and the Court
dismisses it without prejudice.11

Plaintiff’s final claim against Deputy Martin is false arrest (count IV).
“A false arrest claim under section 1983 is substantially the same as a claim
for false arrest under Florida law.” Lopez v. Ciy of Opa-Locka, 2025 WL
1754351 (S.D. Fla. 2025) (cleaned up and citation omitted). “To prevail on a

Florida-law false arrest claim, a plaintiff must prove three things: (1) an
unlawful detention and deprivation of liberty against the plaintiff’s will; (2) an
unreasonable detention not warranted by the circumstances; and (3) an
intentional detention.” Id. (cleaned up and citation omitted). Plaintiff cannot

make such a showing.
Plaintiff was not “seized,” much less arrested, under the Fourth
Amendment. “For Fourth Amendment purposes, a seizure occurs when an
officer, by means of physical force or show of authority, has in some way

restrained the liberty of a citizen.” May v. City of Nahunta, Georgia, 846 F.3d
1320, 1327 (11th Cir. 2017) (internal citations and quotations omitted). “An
encounter between a police officer and a citizen becomes a seizure when a
reasonable person would not feel free to terminate the encounter.” Id.

11 Deputy Martin argues he is entitled to qualified immunity on Plaintiffs’ claims. (Doc. 49).
But Plaintiff will be permitted one opportunity to amend them. Until the Court understands
the basis of Plaintiff’s claims, the Court does not reach the qualified immunity analysis.
(citations omitted). No reasonable person in Plaintiff’s position would feel
Deputy Martin restrained his liberty. Deputy Martin approached Plaintiff,

provided him with a copy of the statute, and advised Plaintiff he could not
remain on the premises. Then Plaintiff left. In fact, Plaintiff ended the
encounter by walking away from Deputy Martin. This is the opposite of a
seizure.12 If anything, Deputy Martin’s conduct amounted to a verbal warning,

which is not enough for a false arrest claim. See Varnado v. Manager of Cedar
Cove Apt. Complex, No. 6:05-CV-1768-ORL-28-DAB, 2006 WL 1679698, at *3
(M.D. Fla. June 12, 2006) (explaining a written trespass warning “is not the
equivalent of an arrest, under either federal or Florida law”). So the Court

dismisses count IV with prejudice.
Now the two claims against Hertz, both of which are easily dismissed.
In count V, Plaintiff brings a claim against Hertz under Fla. Stat. § 837.05 for
filing a false police report. The Court dismisses this claim with prejudice

because § 837.05 is a criminal statute with no private right of action. See
Broodnox v. Wal-Mart Stores E., LP, No. 3:15CV425/MCR/EMT, 2016 WL
3619665, at *7 (N.D. Fla. June 14, 2016), report and recommendation adopted
sub nom., 2016 WL 3629089 (June 29, 2016) (dismissing as frivolous the

12 Plaintiff asks the Court to apply the test adopted in Florida v. Bostick, 501 U.S. 429 (1991).
But that case is inapplicable. There, Bostick was on a bus and, thus, his freedom of movement
was “restricted by a factor independent of police conduct[.]” Id. at 436; see also Brendlin v.
California, 551 U.S. 249, 254 (2007) (applying the Bostick framework to passengers is a
vehicle during a traffic stop). That is not the case here.
plaintiff’s claim under Fla. Stat. § 837.05 because it contains no private right
of action). And in count VI, Plaintiff again alleges Hertz and Deputy Martin

conspired to violate his First Amendment rights. The Court dismisses without
prejudice count VI for the same reasons discussed in Plaintiff’s conspiracy
claim against Deputy Martin.
The Court will give Plaintiff one additional opportunity to get this case

off the ground. Any further pleading deficiencies will result in dismissal of this
action 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. 47, 49) are GRANTED.

2. Counts IV and V are DISMISSED with prejudice.
3. The remaining counts are DISMISSED without prejudice.
4. On or before November 11, 2025, Plaintiff may file an amended
complaint. Failure to do so will cause the Court to dismiss

this case without further notice.
DONE and ORDERED in Fort Myers, Florida on October 28, 2025.

tit WOblatet he
UNITED STATES DISTRICT JUDGE
Copies: All Parties of Record

18

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11180200. Public record. Not legal advice.