Sheets

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

FORT MYERS DIVISION

ANDREW BRYANT SHEETS,

Plaintiff,

v. Case No.: 2:25-cv-653-SPC-NPM

JOSEPH ANGELINI, in his

personal capacity, and JOSE

DELGADO, in his personal

capacity,

Defendants.

OPINION AND ORDER

Before the Court are two motions. The first is Defendants Joseph

Angelini and Jose Delgado’s motion to dismiss. (Doc. 12). Pro se Plaintiff

Andrew Sheets responded.1 (Doc. 16). The second is Plaintiff’s motion for

judicial notice alerting the Court to a purported “material misrepresentation”

in Defendants’ motion regarding his prior conviction. (Doc. 14). Defendants

1 Although Plaintiff is proceeding without a lawyer, he has plenty of experience litigating in

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. Martin et al., 2:25-cv-444-SPC-NPM;

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-644-KCD-DNF; Sheets v. Gray, et al., 2:25-cv-667-JES-DNF.

responded to the motion. (Doc. 15). For the reasons below, the Court grants

the motion to dismiss and denies the motion to take judicial notice.

Background

This case is about free speech and law enforcement. On July 22, 2021,

Defendants arrested Plaintiff while he was protesting on a public sidewalk in

front of Sallie Jones Elementary School in Punta Gorda for breach of the peace

(Fla. Stat. § 877.03) and disruption of a school function (Fla. Stat.

§ 877.13(1)(A)).2 (Doc. 1 at 5). Plaintiff carried signs depicting aborted fetuses

in apparent opposition to abortion and expressed an “anti-cop” viewpoint as

well. (Id.). According to Plaintiff, prior to his arrest, “counterprotestors,” who

appear to be parents of children attending the school, attempted to disrupt his

demonstration by playing “copyrighted music,” using a bullhorn, and by

making physical threats against him. (Id.). Plaintiff alleges Delgado “took the

side of the counterprotestors and physically removed [him] from the sidewalk

using force.” (Id.). Plaintiff also contends that Angelini ordered his arrest but

did not charge any of the counterprotestors, even though they were “more

aggressive.” (Id.). In support of this point, Plaintiff claims that in Angelini’s

2 The Court “accept[s] the allegations in the complaint as true and constru[es] them in the

light most favorable to” Plaintiff. Belanger v. Salvation Army, 556 F.3d 1153, 1155 (11th Cir.

2009).

arrest report, one of the counterprotestors, “A. Ackerman,” stated that he

wanted to “become violent and beat the Plaintiff up.” (Id.).

Plaintiff was tried and convicted on the same charges for which he was

arrested; adjudication for both counts was withheld.3 (See Docs. 12-2, 12-3).

He unsuccessfully appealed his conviction. See Sheets v. State, 365 So. 3d 377

(Fla. Dist. Ct. App. 2023) (per curiam affirming Plaintiff’s convictions).

Plaintiff’s federal lawsuit against the judge who presided over his criminal case

also failed. See Sheets v. Bell, No. 2:23-CV-35-JLB-KCD, 2023 WL 11724681,

at *3 (M.D. Fla. Sept. 12, 2023) (dismissing Plaintiff’s case with prejudice).

Nevertheless, Plaintiff now brings claims against the arresting officers

Angelini and Delgado under 42 U.S.C. § 1983 for retaliation and viewpoint

discrimination in violation of the First Amendment, false arrest in violation of

the Fourth Amendment, and denial of equal protection in violation of the

Fourteenth Amendment. (Doc. 1 at 3).

Legal Standard

Under Federal Rule of Civil Procedure 12(b)(6), a district court must

dismiss a complaint when a plaintiff does not plead facts that make the claim

3 The Court takes judicial notice of the facts regarding Plaintiff’s state court convictions and

related proceedings. See Fed. R. Evid. 201; Horne v. Potter, 392 F. App’x 800, 802 (11th Cir.

2010) (explaining that courts may take judicial notice of documents arising from a prior

judicial proceeding because they are matters of public record and are “capable of accurate

and ready determination by resort to sources whose accuracy could not reasonably be

questioned.”). Plaintiff acknowledges the charges and their disposition. (Doc. 14 at 2).

facially plausible. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A

claim is facially plausible when a court can draw a reasonable inference, based

on facts pled, that the opposing party is liable for the alleged misconduct. See

Ashcroft v. Iqbal, 556 U.S. 662, 668 (2009). This 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)). Indeed, “[m]ere ‘labels

and conclusions or a formulaic recitation of the elements of a cause of action

will not do,’ and a plaintiff cannot rely on ‘naked assertions devoid of further

factual enhancement.’” Franklin v. Curry, 738 F.3d 1246, 1251 (11th Cir.

2013) (quoting Iqbal, 556 U.S. at 678).

Analysis

The Court begins with Plaintiff’s false arrest claim. Despite his

convictions for breach of the peace and disruption of a school function, Plaintiff

claims that his initial arrest on those charges was unlawful, and he is entitled

to recover damages from Defendants. Defendants argue that Plaintiff’s

convictions on these charges precludes Plaintiff’s claim. Defendants are

correct.

Plaintiff’s false arrest claim is barred by the doctrine outlined in Heck v.

Humphrey, 512 U.S. 477, 486–87 (1994). Under this doctrine, “a plaintiff

cannot bring a § 1983 claim after being convicted of a criminal offense that

arises from the same acts that underlie the civil suit.” Hoffman v. Beseler, 760

F. App’x 775, 779 (11th Cir. 2019) (citing Heck, 512 U.S. at 487). This is

because a plaintiff’s success on such claims would “necessarily imply the

invalidity of the underlying conviction, which undermines the finality of

convictions.” Id. (citation omitted). So a plaintiff attempting to recover

damages in such circumstance must show that the conviction or sentence “has

been reversed on direct appeal, expunged by executive order, declared invalid

by a state tribunal authorized to make such determination, or called into

question by a federal court’s issuance of a writ of habeas corpus.” Heck, 512

U.S. at 486–87. Plaintiff makes no such showing.

Instead, Plaintiff argues that because his adjudication was withheld on

the two charges, it is not a “conviction” under Florida law, rendering Heck

inapplicable. (Doc. 16 at 3). Plaintiff is mistaken. Under Florida law, a

“conviction” is defined as “a determination of guilt that is the result of a plea

or trial, regardless of whether adjudication is withheld.” Fla. Stat.

§ 921.0021(2) (emphasis added). And indeed, courts have held that Heck

operates to bar claims where adjudication for the underlying charges was

withheld. See, e.g., Hoffman, 760 F. App’x at 779 (applying Heck despite the

fact the plaintiff’s criminal adjudication was withheld); Betts v. Hall, No.

3:14CV33/MCR/EMT, 2015 WL 3447500, at *10 n.11 (N.D. Fla. May 27, 2015),

aff’d, 679 F. App’x 810 (11th Cir. 2017) (“Heck applies even though . . .

adjudication was withheld.”). So the fact that adjudication was withheld in

Plaintiff’s criminal case does not render Heck inoperable.4

In sum, Plaintiff was convicted on the very arrests he now claims were

unlawful. He already sought and has been denied postconviction relief, so

there is no basis to question those convictions.5 With no other argument from

Plaintiff, Heck bars this Court from allowing Plaintiff’s § 1983 false arrest

claim to proceed. The Court dismisses Plaintiff’s false arrest claim with

prejudice.

Next, Plaintiff’s retaliation claim. To state a retaliation claim, a plaintiff

generally must show: (1) he engaged in constitutionally protected speech, such

as his right to petition the government for redress; (2) the defendant’s

retaliatory conduct adversely affected that protected speech and right to

petition; and (3) a causal connection exists between the defendant’s retaliatory

conduct and the adverse effect on the plaintiff’s speech and right to petition.

See Bennett v. Hendrix, 423 F.3d 1247, 1250 (11th Cir. 2005). Plaintiff alleges

Defendants arrested him in retaliation for his protest.

4 Because Florida law treats a withheld adjudication as a conviction, Defendants made no

material misrepresentation when they asserted Plaintiff was convicted for Heck purposes.

For this reason, Plaintiff’s motion for the Court to take judicial notice that he was not

convicted (Doc. 14) is denied.

5 While Plaintiff seems to argue that he was unlawfully arrested (Doc. 16 at 7), he fails to

show that the convictions have been invalidated in any way by a court. So his argument is

unmoving.

Defendants maintain that Plaintiff’s retaliation claim fails because

probable cause existed for the arrest.6 Generally, a plaintiff must show a lack

of probable cause for the arrest and that the retaliation was a substantial or

motivating factor behind the arrest to succeed on a retaliatory arrest claim.

See DeMartini v. Town of Gulf Stream, 942 F.3d 1277, 1296 (11th Cir. 2019)

(quoting Nieves v. Bartlett, 597 U.S. 391, 403 (2019)). Plaintiff does not show

a lack of probable cause in his complaint. Nor can he, given his conviction on

the same charges for which he was arrested. See Kelly v. Serna, 87 F.3d 1235,

1241 (11th Cir. 1996) (“A jury conviction is conclusive of probable cause unless

there was fraud.”). But the inquiry does not end there.

There are “two narrow exceptions” where probable cause does not defeat

a retaliation claim. Turner v. Williams, 65 F.4th 564, 585 (11th Cir. 2023).

The first is “when the ‘unique’ five factual circumstances” from Lozman v.

Riviera Beach, 585 U.S. 87, 100 (2018), are all present.7 Turner, 65 F.4th at

585 (citation omitted). The second exception exists “where officers have

probable cause to make arrests, but typically exercise their discretion not to do

so.” Id. (citing Nieves, 597 U.S. at 406). To meet this exception, a plaintiff

6 Defendants devote significant space in their motion to the defense of qualified immunity.

The Court notes those arguments but declines to consider them at this juncture given

Plaintiff will be given leave to amend this claim.

7 As to the first exception, Plaintiff does not even try to satisfy it. So the Court does not

devote any further analysis on that issue.

generally “presents objective evidence that he was arrested when otherwise

similarly situated individuals not engaged in the same sort of protected speech

had not been.” Nieves, 597 U.S. at 407. The “statements and motivations of

the particular arresting officer are irrelevant” to the second exception. Id.

(cleaned up).

Trying to satisfy the second exception, Plaintiff alleges the

“counterprotestors” engaged in similar or more violent conduct than him but

were not arrested. For instance, a “counterprotestor” named Ackerman (a

parent of two children at the school) was present during the relevant events

and stated “he wished to become violent and beat the Plaintiff up.” (Doc. 1 at

5). Plaintiff also alleges the counterprotesters used a bullhorn and played loud

music. Despite Ackerman’s allegedly violent conduct and the volume of other

counterprotesters, Defendants did not arrest them for breach of peace or

disruption of a school function. In Plaintiff’s view, the only explanation for this

disparate treatment is the counterprotesters held a different viewpoint than

he did.

The problem for Plaintiff is he pleads no facts showing the

counterprotesters held a different viewpoint than his. Instead, he tries to get

around this by using the conclusory label “counterprotestor.” But this label

does not indicate they were protesting or opposed to Plaintiff’s viewpoint—as

opposed to, perhaps, his general presence around young children with graphic

images of aborted fetuses. Frankly, Plaintiff does not plead facts suggesting

the “counterprotesters” were trying to convey a viewpoint at all, only that his

presence irritated them. His failure to allege the counterprotesters’ viewpoint

is fatal. See Sheets v. Jimenez, No. 2:24-CV-704-SPC-KCD, 2025 WL 807345,

at *3 (M.D. Fla. Mar. 13, 2025) (finding Plaintiff’s cited comparators

inadequate because he failed to allege their viewpoint, “let alone that their

viewpoint differs from his”); Matacchiero v. McCormick, No. 3:24CV105-TKW-

ZCB, 2024 WL 3629442, at *6 (N.D. Fla. Aug. 1, 2024) (dismissing a First

Amendment claim because the plaintiff “did not identify any other speakers

who had different viewpoints than him”).

Plaintiff’s attempt to portray Ackerman as violent also falls short. He

alleges that Ackerman stated, “he wished to become violent and beat the

Plaintiff up.” (Doc. 1 at 5). But there is no allegation Ackerman became

violent. So Ackerman is not an adequate comparator either.

Ultimately, Plaintiff fails to allege the “counterprotesters” were similarly

situated to him. As such, he fails to allege facts showing he was arrested when

otherwise similarly situated individuals not engaged in the same sort of

protected speech had not been. Without meeting this standard, probable cause

bars Plaintiff’s retaliation claim. So the Court dismisses Plaintiff’s retaliation

claim without prejudice.

Now, Plaintiff’s viewpoint discrimination claim. “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

crux of Plaintiff’s claim is that he was arrested because of his anti-abortion and

anti-police viewpoint while others similarly situated—who do not share that

same viewpoint—were not. This is a selective-enforcement claim.

Plaintiff’s selective-enforcement claim fails for the same reason as his

retaliation claim: he fails to allege adequate comparators. Without adequate

comparators, Plaintiff “cannot show viewpoint discrimination based on

selective enforcement.” Matacchiero 2024 WL 3629442, at *6; Sheets, 2025 WL

807345, at *3 (dismissing Plaintiff’s First Amendment selective-enforcement

claim for failing to cite adequate comparators); see also Sheets v. Jimenez, No.

2:24-CV-704-SPC-KCD, 2025 WL 1725954, at *3 (M.D. Fla. June 20, 2025)

(same). So the Court dismisses the viewpoint discrimination claim without

prejudice as well.

The Court finally addresses Plaintiff’s Fourteenth Amendment equal

protection claim. Plaintiff appears to base this claim on the same facts as his

First Amendment claims, i.e., he was subjected to unequal treatment (his

arrest) because of his speech. So Defendants argue it should be dismissed as

duplicative.

The issue is not that Plaintiff’s Fourteenth Amendment is duplicative;

rather, it is not a cognizable claim. The Eleventh Circuit has explained that

when a plaintiff claims an equal protection violation based solely on his speech,

the claim arises under the First Amendment, not the Fourteenth Amendment.

See Watkins v. Bowden, 105 F.3d 1344, 1354–1355 (11th Cir. 1997) (explaining

in an employment discrimination case that “[t]o the extent [plaintiff] contends

that she was dismissed because of her expressive activity, that claim arises

under the First Amendment” rather than the Fourteenth Amendment) (citing

cases); Ratliff v. DeKalb Cnty., 62 F.3d 338, 340 (11th Cir. 1995) (reversing

denial of qualified immunity on equal protection retaliation claim because

“[t]he right to be free from retaliation [for making complaints of discrimination]

is clearly established as a first amendment right and as a statutory right under

Title VII; but no clearly established right exists under the equal protection

clause to be free from retaliation.”); see also Louissaint v. Miami-Dade Cnty.,

No. 21-24141-CIV, 2022 WL 22883775, at *7 (S.D. Fla. Nov. 3, 2022)

(explaining the plaintiff’s attempt to bring a retaliation claim under the equal

protection clause “is the exact type of freestanding retaliation claim rejected in

Watkins.”). In fact, Plaintiff concedes that his equal protection claim is

“intertwined” with his First Amendment claims and is based on the same

expressive conduct as those claims. (Doc. 16 at 14). Because Plaintiff’s claim

does not implicate the Equal Protection Clause, the Court dismisses it with

prejudice.

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’ Motion to Dismiss (Doc. 12) is GRANTED.

a. Plaintiff’s false arrest claim and equal protection claim

are dismissed with prejudice.

b. Plaintiff’s viewpoint discrimination and retaliation

claims are dismissed without prejudice.

2. Plaintiff’s Motion for Judicial Notice (Doc. 14) is DENIED.

3. 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.

° wih LObLatt 7

UNITED STATES DISTRICTJUDGE

Copies: All Parties of Record

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