Berry

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

FORT MYERS DIVISION

SHAWN MICHAEL BERRY,

Plaintiff,

v. Case No: 2:25-cv-299-JES-NPM

TAYLOR SMITH and CITY OF

PUNTA GORDA,

Defendants.

OPINION AND ORDER

This matter comes before the Court on review of Taylor Smith

(“Officer Smith”) and the City of Punta Gorda’s (the “City”)

(collectively “Defendants”) Motion to Dismiss the Second Amended

Complaint (Doc. #25) filed on August 15, 2025. Plaintiff Shawn

Michael Berry (Plaintiff or “Berry”) filed an Answer in Opposition

To Defendants’ Motion (Doc. #27) on August 27, 2025. For the

reasons set forth below, Defendants’ motion is mostly denied.

I.

Under Federal Rule of Civil Procedure 8(a)(2), a Complaint

must contain a “short and plain statement of the claim showing

that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2).

This obligation “requires more than labels and conclusions, and a

formulaic recitation of the elements of a cause of action will not

do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)

(citation omitted). As the Eleventh Circuit has recently

summarized:

When reviewing a motion to dismiss, we accept the

plaintiff's allegations as true and construe them in the

light most favorable to the plaintiff. To survive a

motion to dismiss, a complaint must contain sufficient

factual matter, accepted as true, to state a claim to

relief that is plausible on its face. A claim is facially

plausible if the plaintiff pleads factual content that

allows the court to draw the reasonable inference that

the defendant is liable for the misconduct alleged. This

plausibility standard is not akin to a probability

requirement, but it asks for more than a sheer

possibility that a defendant has acted unlawfully. When

making the determination of whether a complaint states

a plausible claim, we draw on our judicial experience

and common sense.

. . .

We use a two-step process to determine whether a

claim survives Rule 12(b)(6) scrutiny. At the outset, we

determine what must be pled for each cause of action. .

. . Then, we consider the well-pleaded factual

allegations . . . to determine whether they plausibly

suggest an entitlement to relief.

Caterpillar Fin. Services Corp. v. Venequip Mach. Sales Corp., 147

F.4th 1341, 1346–47 (11th Cir. 2025) (citations and internal

punctuation omitted).

A pleading drafted by a party not represented by counsel (a

pro se party) is held to a less stringent standard than one drafted

by an attorney, and the Court will construe such pleadings

liberally. Jones v. Fla. Parole Comm'n, 787 F.3d 1105, 1107 (11th

Cir. 2015). But “this leniency does not give a court license to

serve as de facto counsel for a party, or to rewrite an otherwise

deficient pleading in order to sustain an action.” Campbell v. Air

Jamaica Ltd., 760 F.3d 1165, 1168–69 (11th Cir. 2014). “[A] pro

se pleading must suggest (even if inartfully) that there is at

least some factual support for a claim; it is not enough just to

invoke a legal theory devoid of any factual basis.” Jones, 787

F.3d at 1107.

II.

The following facts are set forth in the Second Amended

Complaint (SAC) (Doc. #23) or in documents the Court may consider

in deciding a motion to dismiss:

On May 3, 2022, Berry participated in a protest against City

Ordinance Chapter 26, Section 11.5(z) (the “Ordinance”) while on

a public sidewalk in the City. The Ordinance had been adopted by

the City on June 2, 2021, and prohibited the public display of any

sign containing obscene language or graphics. More specifically,

the Ordinance provided:

Unless as otherwise provided for in this Article,

no person shall erect, display, wear, alter, maintain,

or relocate any of the following signs in the City and

such existing signs must be removed:

. . .

(z) Any sign which contains obscene language or

graphics; and any sign containing fighting words or

indecent speech which is legible from any public right-

of-way or within any public space, and which can

potentially be viewed by children under the age of 17.

This provision includes signs or flags in or on any

vehicle, vessel or on any apparel and accoutrements.

Punta Gorda, Fla., Code of Ordinances, ch. 26, § 11.5(z).

“Indecent speech” is defined as “language or graphics that depict

or describe sexual or excretory activities or organs in a manner

that is offensive as measured by contemporary community

standards.” Punta Gorda, Fla., Code of Ordinances, ch. 26, §

11.4(a)(32).

During the protest Berry displayed a sign that stated: “PUNTA

GORDA FUCKING FIRST AMENDENT.” (Doc. #23, p. 6). Non-party

officers approached Berry and “yelled profanities.” Another non-

party officer accused Berry of “being un-American,” and threatened

to arrest him and the other protestors. (Id.). Another non-party

officer demanded Berry’s identification, and Officer Smith then

began to issue Berry a citation for violation of the Ordinance.

(Id.). Berry did not feel free to leave while Officer Smith wrote

the citation, but was not arrested. Berry had been videotaping

the entire protest, which the SAC asserts constitutes

“journalism.” The citation effectively halted Berry’s activities

at the protest, and Berry then left the area.

The City proceeded with the civil proceedings against Berry

initiated by the citation, which compelled Berry to appear at four

hearings before the Code Enforcement Board between June and October

2022. (Id.). Meanwhile, on September 26, 2022, in unrelated

litigation, a state Circuit Court in Charlotte County found the

Ordinance was unconstitutional. See Massey v. City of Punta Gorda,

Case No. 21001014CA. The City voluntarily dismissed the case

against Berry on October 12, 2022.

The SAC asserts claims pursuant to 42 U.S.C. § 1983 against

Officer Smith and the City for: (1) violation of Berry’s First

Amendment right to free speech when Defendants “retaliated against

him for the content of his political protest sign and journalism”

by issuing the citation, and (2) violation of Berry’s Fourth

Amendment right to be free from unreasonable seizures when he was

“temporarily detained and compelled to submit to the issuance of

a citation and multiple mandatory code enforcement hearings[.]”

(Id. at pp. 3-4). Read liberally, the SAC thus alleges four claims

against each defendant: (1) First Amendment retaliation for

issuing a citation because of the language on the sign; (2) First

Amendment retaliation for issuing the citation because of filming

at activities of the police and protesters; (3) Fourth Amendment

violation for stopping and detaining Berry while the citation was

issued; and (4) Fourth Amendment violation for maliciously

prosecuting and compelling his appearing before the Code

Enforcement Board. Berry sues Officer Smith in her individual

capacity and the City pursuant to the liability principles of

Monell v. Dep't of Soc. Services of City of New York, 436 U.S. 658

(1978). Berry seeks compensatory, punitive, and nominal damages

as well as costs.

III.

Defendants raise three grounds for dismissal: (1) “Plaintiff

fails to allege a seizure necessary to properly state a claim for

unlawful seizure or malicious prosecution.”; (2) “Officer Smith is

entitled to qualified immunity because at the time of Plaintiff’s

alleged citation, a valid and enforceable City ordinance

existed.”; and (3) “Plaintiff fails to properly plead a Monell

claim.” (Doc. #25, p. 3.) The Court begins with the qualified

immunity argument, as did Defendants. (Id. at 4-14.)

A. Officer Smith’s Assertion of Qualified Immunity

The SAC alleges that Officer Smith issued the citation for

violation of the Ordinance in retaliation for Berry exercising his

First Amendment rights to display a sign which stated “PUNTA GORDA

FUCKING FIRST AMENDMENT” and to videotape the protest activities.

The SAC also alleges that Officer Smith violated Berry’s Fourth

Amendment rights by detaining him while she issued the citation

and causing him to attend multiple mandatory court appearances in

response to the citation. Officer Smith asserts that litigation

and personal liability for these claims are barred by qualified

immunity. Berry responds that qualified immunity does not apply.

(1) Qualified Immunity Principles

Qualified immunity shields government officials performing

discretionary functions from civil litigation and liability in

their personal capacity unless their conduct violated clearly

established statutory or constitutional rights that a reasonable

person would have known about. Aguirre v. Seminole Cnty., No. 23-

10811, 2025 WL 3078186, at *12 (11th Cir. Nov. 4, 2025); Huggins

v. Sch. Dist. of Manatee Cnty., 151 F.4th 1268, 1278 (11th Cir.

2025). A district court must resolve a request for qualified

immunity “at the earliest possible stage in litigation.” Miller

v. Palm Beach Cnty. Sheriff's Office, 129 F.4th 1329, 1334 (11th

Cir. 2025). “The qualified immunity defense may be raised and

addressed on a motion to dismiss, and will be granted if the

complaint ‘fails to allege the violation of a clearly established

constitutional right.’” Smith ex rel. Smith v. Siegelman, 322

F.3d 1290, 1294 (11th Cir. 2003) (citations omitted.) Whether the

SAC alleges a violation of a clearly established right is a

question of law. Id.; Williams v. Alabama State Univ., 102 F.3d

1179, 1182 (11th Cir. 1997).

The Court employs a burden-shifting analysis to determine

whether official conduct is protected by qualified immunity.

Huggins, 151 F.4th at 1278. First, the official must prove that

she was acting within the scope of her discretionary authority

when the alleged wrongful act occurred. Huggins, 151 F.4th at 1278;

DeMarcus v. Univ. of S. Ala., 133 F.4th 1305, 1317 (11th Cir.

2025). This requires the official to show that her actions were

undertaken pursuant to the performance of her duties and within

the scope of her authority. Huggins, 151 F.4th at 1278. A district

court looks to the general nature of defendant's action,

temporarily disregarding the alleged illegality of that act. Id.

Second, if the official makes the required showing, the burden

shifts to plaintiff to show that the conduct violated his statutory

or constitutional right and that the right was clearly established

at the time of the challenged conduct. Huggins, 151 F.4th at 1278;

Watkins v. Davis, 156 F.4th 1084, 1097 (11th Cir. 2025). “[A]

police officer is entitled to qualified immunity if a reasonable

police officer could have believed his or her actions were lawful

in light of clearly established law and the information possessed

by the officer at the time the conduct occurred.” Watkins, 156

F.4th at 1097 (citation omitted.) Plaintiff can show the law was

“clearly established” in any of three ways: (1) identifying a

qualifying case with “indistinguishable facts,” (2) relying on “a

broad statement of principle within the Constitution, statute, or

case law,” or (3) showing that the Officers’ behavior was “so

egregious” that it was obvious “a constitutional right was clearly

violated, even in the total absence of case law.” Id. See also

Andre v. Clayton Cnty., Georgia, 148 F.4th 1282, 1298 (11th Cir.

2025).

(2) Application of Qualified Immunity Principles

(a) Action Within Scope of Discretionary Authority

Officer Smith was clearly acting within her discretionary

authority as a law enforcement officer during the entire encounter

with Berry. As the SAC alleges, Officer Smith was acting “under

color of state and local law as a uniformed police officer for the

City of Punta Gorda” when she issued the citation. (Doc. #23, p.

4.) Issuing the citation was pursuant to the performance of

Officer Smith’s duties and was within the scope of her authority

as a City police officer. Thus, the burden shifts to Berry to

show that qualified immunity is not appropriate for his claims.

The Court analyzes each claim separately to determine whether

Berry has carried his burden to show qualified immunity is not

appropriate. Watkins, 156 F.4th at 1098. The Court begins with

the two First Amendment claims, then addresses the two Fourth

Amendment claims.

(b) First Amendment Claims

“[A]s a general matter the First Amendment prohibits

government officials from subjecting an individual to retaliatory

actions” for engaging in protected speech. Hartman v. Moore, 547

U.S. 250, 256 (2006). If the official’s adverse action is motivated

by such retaliation, and “non-retaliatory grounds are in fact

insufficient to provoke the adverse consequences,” the person may

generally seek relief by bringing a First Amendment claim. Nieves

v. Bartlett, 587 U.S. 391, 398 (2019). To state a First Amendment

retaliation claim, Berry must plausibly allege that (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. Huggins,

151 F.4th at 1281, (citing DeMartini v. Town of Gulf Stream, 942

F.3d 1277, 1289 (11th Cir. 2019)). To defeat a qualified immunity

motion, Berry must establish not only that he was engaged in

constitutionally protected speech, but that the law providing such

constitutional protection was clearly established at the time of

his conduct. Huggins, 151 F.4th at 1278.

Officer Smith argues that she “is entitled to qualified

immunity because at the time of Plaintiff’s alleged citation, a

valid and enforceable City ordinance existed.” (Doc. #25, p. 3.)

Officer Smith essentially asserts that the law was not clearly

established at the time she issued the citation because the

Ordinance prohibited Berry’s conduct and the Ordinance was not

found unconstitutional until after she issued the citation.

(i) Berry’s Sign

It is undisputed that the Ordinance had not been declared

unconstitutional at the time the citation was issued. The

legitimacy of the officer’s conduct, however, does not turn on the

constitutionality of the Ordinance or Officer Smith’s ability to

predict whether it would be declared unconstitutional. “The

subsequently determined invalidity of the [city] ordinance . . .

does not undermine the validity of the arrest made for violation

of that ordinance . . .”. Michigan v. De Fillippo, 443 U.S. 31,

40 (1979). “Police are charged to enforce laws until . . . they

are declared unconstitutional. The enactment of a law forecloses

speculation by enforcement officers concerning its

constitutionality — with the possible exception of a law so grossly

and flagrantly unconstitutional that any person of reasonable

1

prudence would be bound to see its flaws.” (Id. at 38.) So long

as the officer has probable cause, an arrest is constitutional.

Nieves, 587 U.S. at 398.

1

The Supreme Court discussed the exception mentioned in De

Fillippo the next term in Ybarra v. Illinois, 444 U.S. 85, 96 n.11

(1979). Police officers had acted on the strength of a state

statute that did not define the elements of a substantive criminal

offense but purported to authorize the police in some circumstances

to make searches and seizures without probable cause and without

search warrants. The Supreme Court noted that this fell within the

category of statutes purporting to authorize searches without

probable cause, “which the Court has not hesitated to hold invalid

as authority for unconstitutional searches. (collecting cases).”

Id.

While De Fillippo involved a Fourth Amendment claim, the same

principles apply to First Amendment retaliation claims. Nieves,

587 U.S. at 397–98 (probable cause to arrest defeats a claim that

the arrest was in retaliation for speech protected by the First

Amendment); DeMartini, 942 F.3d at 1306 (“[T]he presence of

probable cause will generally defeat a . . . § 1983 First Amendment

retaliation claim . . ..”); Cooper v. Dillon, 403 F.3d 1208, 1220–

21 (11th Cir. 2005) (finding circumstances of case did not give

the officer “fair warning” that the statute was unconstitutional).

Officer Smith argues that she had probable cause to issue the

citation, or at least arguable probable cause, and therefore she

is entitled to qualified immunity. (Doc. #25, pp. 7, 9-11.) The

Court concludes, however, Officer Smith did not have any level of

suspicion, and therefore is not entitled to qualified immunity.

As Berry points out (Doc. #27, pp. 7-8), long before Officer

Smith issued the citation the United States Supreme Court had held

that conveying a message which included the written word “fuck”

was protected by the First Amendment. Cohen v. California, 403

U.S. 15, 20 (1971) (holding that the words “Fuck the Draft” written

across a witness’s jacket in a courtroom corridor, while

distasteful, did not fall into a category of speech not protected

by the First Amendment.) Shortly before the issuance of the

citation, the Supreme Court reiterated this principle. Mahanoy

Area Sch. Dist. v. B. L. by & through Levy, 594 U.S. 180, 185

(2021) involved a high school student who posted an image of

herself and a friend with middle fingers raised and the caption

“Fuck school fuck softball fuck cheer fuck everything.” The

Supreme Court stated:

This criticism did not involve features that would

place it outside the First Amendment's ordinary

protection. B. L.’s posts, while crude, did not amount

to fighting words. See Chaplinsky v. New Hampshire, 315

U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031 (1942). And while

B. L. used vulgarity, her speech was not obscene as this

Court has understood that term. See Cohen v. California,

403 U.S. 15, 19–20, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971).

To the contrary, B. L. uttered the kind of pure speech

to which, were she an adult, the First Amendment would

provide strong protection. See id., at 24, 91 S.Ct. 1780;

cf. Snyder v. Phelps, 562 U.S. 443, 461, 131 S.Ct. 1207,

179 L.Ed.2d 172 (2011) (First Amendment protects “even

hurtful speech on public issues to ensure that we do not

stifle public debate”); Rankin v. McPherson, 483 U.S.

378, 387, 107 S.Ct. 2891, 97 L.Ed.2d 315 (1987) (“The

inappropriate . . . character of a statement is

irrelevant to the question whether it deals with a matter

of public concern”).

Id. at 191.

Thus, at the time Officer Smith issued the citation, the law

was clearly established that Berry’s written sign was not obscene

and was protected by the First Amendment. No factual allegation

in the SAC takes Berry’s circumstances outside the broad scope of

this law, and the SAC specifically pleads a lack of probable cause

by Officer Smith. (Doc. #23, p. 4.) There was a Supreme Court

case with indistinguishable material facts (Cohen) and broad

statements of principle within Supreme Court cases (Mahoney Area)

which clearly precluded a reasonable officer from believing she

could validly issue a citation for violation of the Ordinance based

on the contents of the sign. Since the SAC describes nothing

outside the protection of the First Amendment in connection with

Berry’s sign, Officer Smith did not have any level of suspicion,

including arguable probable cause. Accordingly, Officer Smith is

not entitled to qualified immunity for issuing a citation based on

the contents of Berry’s placard.

(ii) Videotaping Police and Protest

A portion of the First Amendment retaliation claim in the SAC

includes the assertion that Berry was videotaping the protest

activities, which the SAC asserts constitutes “journalism”

protected by the First Amendment. The SAC alleges in a conclusory

fashion that the citation was issued in retaliation for the

videotaping activity. Officer Smith argues that at the time the

citation was issued there was not a clearly established First

Amendment right to videotape the police activities at the protest,

and therefore she is entitled to qualified immunity as to the video

portion of the claim. (Doc. #25, p. 6, n.2.) The Court agrees

with Officer Smith.

The law in the Eleventh Circuit was not sufficiently clear at

the time of the protest to defeat qualified immunity. In 2000 the

Eleventh Circuit found that videotaping a police officer and the

surrounding area is protected by the First Amendment. See Smith v.

City of Cumming, 212 F.3d 1332, 1333 (11th Cir. 2000) (“As to the

First Amendment claim under Section 1983, we agree with the Smiths

that they had a First Amendment right, subject to reasonable time,

manner and place restrictions, to photograph or videotape police

conduct. The First Amendment protects the right to gather

information about what public officials do on public property, and

specifically, a right to record matters of public interest.”

(collecting cases.) In 2021, however, the Eleventh Circuit walked

back this broad language, finding that Smith did not provide the

required clarity and upholding an officer’s entitlement to

qualified immunity on a First Amendment retaliation claim. Crocker

v. Beatty, 995 F.3d 1232, 1243 (11th Cir. 2021). In Khoury v.

Miami-Dade Cnty. Sch. Bd., 4 F.4th 1118, 1129 (11th Cir. 2021) the

Court found that the First Amendment right to videotape the

activity of a police officer was clearly established under the

circumstances of that case, citing Smith and distinguishing

Crocker. As stated in Ghandour v. City of Miami, 710 F. Supp. 3d

1188, 1198 (S.D. Fla. 2024) “[i]n assessing whether Smith applies

to a particular case, courts often grapple with factual and legal

nuances relevant to a given case, reaching differing conclusions.”

The Court finds that the law was not sufficiently clear to

place officers on notice that it would violate the First Amendment

to issue a citation because the person was videotaping police

activities at this protest. “’For a constitutional right to be

clearly established, its contours must be sufficiently clear that

a reasonable official would understand that what he is doing

violates that right’ such that ‘in the light of pre-existing law

the unlawfulness [is] apparent.’” Aguirre, 2025 WL 3078186, at

*14 (quoting Hope v. Pelzer, 536 U.S. 730, 739 (2002)). As the

Supreme Court stated in Ashcroft v. al-Kidd, 563 U.S. 731, 741

(2011),

[a] Government official's conduct violates clearly

established law when, at the time of the challenged

conduct, “[t]he contours of [a] right [are] sufficiently

clear” that every “reasonable official would [have

understood] that what he is doing violates that right.”

Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034,

97 L.Ed.2d 523 (1987). We do not require a case directly

on point, but existing precedent must have placed the

statutory or constitutional question beyond debate. See

ibid.; Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct.

1092, 89 L.Ed.2d 271 (1986).

Under the factual allegations in the SAC, it appears that Berry

did indeed have a First Amendment right to videotape the activities

at the protest, including police conduct. However, Berry has not

satisfied the “beyond debate” standard, and therefore Officer

Smith is entitled to qualified immunity as to the videotaping

2

aspect of the First Amendment retaliation claim.

(c) Fourth Amendment Claims

The SAC asserts that Officer Smith violated the Fourth

Amendment in two ways: by detaining Berry while she issued the

citation, and by causing Berry to attend multiple mandatory court

appearances in response to the citation. The Court discusses each

separately.

(i) Seizure During Issuance of Citation

The Fourth Amendment “protects people from unreasonable . .

. seizures.” U.S. Const. Amend. IV. “Not all interactions between

law enforcement and citizens, however, implicate the scrutiny of

the Fourth Amendment.” United States v. Jordan, 635 F.3d 1181,

1185 (11th Cir. 2011). Courts have identified three distinct types

of police-citizen encounters: (1) consensual encounters; (2) brief

seizures or investigatory stops; and (3) arrests. Jordan, 635

F.3d at 1185; United States v. Perez, 443 F.3d 772, 777 (11th Cir.

2

Even if Officer Smith is not entitled to qualified immunity for

the videotaping portion of the claim, the SAC fails to plead

plausible facts to establish that the issuance of the citation was

in retaliation for that videotaping. The SAC simply states in a

conclusory fashion that Berry was videotaping, and that the

citation was issued because of it. The plausible facts indicate

that it was the content of the sign that caused issuance of the

citation, and no facts are alleged to establish that the

videotaping played a role in Officer Smith’s decision.

2006); Popple v. State, 626 So.2d 185, 186–87 (Fla. 1993). Only

the last two types of encounters implicate the Fourth Amendment,

and only the first two types of encounters are at issue in this

case.

“There is nothing in the Constitution which prevents a

policeman from addressing questions to anyone on the streets.”

United States v. Franklin, 323 F.3d 1298, 1301 (11th Cir. 2003)

(quotations omitted). Such a consensual encounter does not

implicate the Fourth Amendment because the person is free to leave

at any time. United States v. Mendenhall, 446 U.S. 544, 553

(1980). To establish the encounter was consensual, the officer

bears the burden of proving voluntary consent to the encounter

based on the totality of circumstances. Jordan, 635 F.3d at 1185.

If an objective, reasonable, innocent person would feel free to

terminate the encounter, the person has not been seized. United

States v. Knights, 989 F.3d 1281, 1286 (11th Cir. 2021).

In contrast, Fourth Amendment protections do “extend to brief

investigatory stops of persons or vehicles that fall short of

traditional arrest.” United States v. Arvizu, 534 U.S. 266, 273

(2002). See also Whren v. United States, 517 U.S. 806, 809−10

(1996); United States v. Drayton, 536 U.S. 194 (2002); Jordan, 635

F.3d at 1185. A person is “seized” within the meaning of the

Fourth Amendment when an officer, by means of physical force or a

show of authority, terminates or restrains the person’s freedom of

movement through intentional means. Brendlin v. California, 551

U.S. 249, 254 (2007). This includes a show of authority without

the use of physical force. Id. If the actions of the police are

ambiguous, a seizure occurs if “in view of all of the circumstances

surrounding the incident, a reasonable person would have believed

that he was not free to leave.” Brendlin, 551 U.S. at 255. Thus,

a person has been “seized” within the meaning of the Fourth

Amendment if, in view of all the circumstances surrounding the

incident, a reasonable person would have believed that he was not

free to leave. California v. Hodari D., 499 U.S. 621, 627–28

(1991); Andre, 148 F.4th at 1292. To justify an investigatory

stop, an officer must have reasonable well-founded suspicion to

believe that a person has committed, is committing, or is about to

commit a crime. Ornelas v. United States, 517 U.S. 690, 696

(1996).

Defendants begin by arguing that Berry “was not seized.”

(Doc. #25, p. 7.) Defendants correctly assert that an officer

does not seize a person by approaching the person and identifying

herself, or by simply asking questions. (Doc. #25, p. 8 n.4.)

Defendants then incorrectly argue that the allegations in the SAC

only establish that there was a consensual police-citizen exchange

involving no coercion or detention, and that issuance of a citation

is insufficient to constitute a seizure without some other conduct

by Officer Smith. (Id. at 7-8.)

If Officer Smith’s conduct did not violate the Fourth

Amendment she would certainly be entitled to qualified immunity.

Paez v. Mulvey, 915 F.3d 1276, 1285 (11th Cir. 2019). Although

Officer Smith argues to the contrary, the plausible factual

allegations and reasonable inferences in the SAC show that Officer

Smith “seized” Berry within the meaning of the Fourth Amendment

when she detained Berry to issue the citation. Officer Smith and

fellow officers approached Berry; one or more of the officers

demanded his identification and made aggressive comments to him

while Officer Smith wrote the citation. It is a reasonable

inference that Officer Smith utilized and retained Berry’s

identification while she completed the citation. No reasonable

person would have felt free to leave until after the citation

process was complete. Accordingly, the SAC does not describe a

consensual encounter but one where Officer Smith “seized” Berry

within the meaning of the Fourth Amendment.

Officer Smith argues that even if a brief, temporary seizure

occurred when she issued the citation, she is still entitled to

qualified immunity. (Doc. #25, pp. 8-9.) Officer Smith correctly

asserts that officers are permitted to approach someone for

purposes of investigating possible criminal behavior without

probable cause if there is reasonable suspicion of criminal

activity, citing Terry v. Ohio, 392 U.S. 1 (1968). (Id.) Officer

Smith argues that the “brief ‘stop’ of the Plaintiff to issue him

a ticket is akin to a Terry stop and thus does not sufficiently

implicate the Fourth Amendment.” (Id. at 9, citing Bennett v.

3

Hendrix, 423 F.3d 1247 (11th Cir. 2005)). Officer Smith also

argues she is entitled to qualified immunity because she had

arguable probable cause to temporarily detain Berry to issue him

the citation for violating the Ordinance. (Doc. #25, pp. 9-11.)

The Court agrees with Officer Smith that her issuance of the

citation is akin to a Terry stop. Contrary to her argument,

however, the Fourth Amendment does apply to such a stop and

detention, and requires a reasonable well-founded suspicion that

Berry has committed, is committing, or is about to commit a crime.

Ornelas, 517 U.S. at 696. As the Court has already determined,

Officer Smith did not have any level of suspicion that Berry’s

conduct was not protected by the First Amendment. Officer Smith

is therefore not entitled to qualified immunity for this aspect of

the Fourth Amendment seizure claim.

(ii) Malicious Prosecution

3

The Court notes that Bennett has been red-flagged as partially

abrogated.

The SAC also asserts that the City prosecuted the code

enforcement case initiated by the citation, which compelled Berry

to attend four mandatory hearings under threat of penalty. (Doc.

#23, pp. 4, 6.) Read liberally, this asserts a claim for malicious

prosecution under the Fourth Amendment.

Fourth Amendment malicious prosecution claims focus on

seizures pursuant to legal process. Aguirre, 2025 WL 3078186, at

*16 (citing Williams v. Aguirre, 965 F.3d 1147, 1157–58 (11th Cir.

2020)) (explaining malicious prosecution is a “shorthand way of

describing” certain Fourth Amendment claims involving seizure

pursuant to legal process). “To succeed on a malicious-prosecution

claim, then, a plaintiff must show that the legal process

justifying the seizure was defective due to constitutional

infirmities.” Aguirre, 2025 WL 3078186, at *16 (citation omitted).

To state a Fourth Amendment malicious-prosecution claim, a

plaintiff must plausibly allege four elements: (1) plaintiff was

seized under legal process; (2) the legal process justifying the

plaintiff's seizure was constitutionally infirm; (3) the suit or

proceeding terminated in the plaintiff's favor; and (4) the seizure

would not otherwise be justified without legal process. Gervin v.

Florence, 139 F.4th 1236, 1248–49 (11th Cir. 2025). When

considering qualified immunity for malicious prosecution claims,

the court also reviews for arguable probable cause and whether the

law was clearly established. Prospero v. Sullivan, 153 F.4th 1171,

1183–84 (11th Cir. 2025).

Officer Smith did not detain Berry pursuant to legal process

when she stopped him to issue the citation. It is factually

undisputed that Officer Smith had no warrant or similar legal

process to restrain Berry’s movements. As has been stated before

by this court, the seizure while Officer Smith wrote a ticket

cannot serve as the required seizure pursuant to legal process.

Hoffman v. Smith, No. 2:24-CV-111-SPC-KCD, 2024 WL 511161, at *1

(M.D. Fla. Dec. 13, 2024) (Chappell, J.). Accordingly, Berry’s

malicious prosecution claim cannot include the stop and detention

while Officer Smith wrote the citation.

The citation, however, was a legal process which resulted in

Berry being required to attend multiple subsequent code

enforcement hearings. See generally Fla. Stat. § 162.21(3)-(5),

(8). As discussed previously, the SAC has alleged enough facts to

plausibly show that the legal process (the citation) was

constitutionally infirm. The issue is whether Berry suffered a

seizure due to the citation. Berry essentially argues that he was

subjected to a “continuing seizure” because he was compelled to

appear on four occasions for Code Enforcement Board hearings in

response to the citation.

The Eleventh Circuit expressed doubts about the viability of

the continuing seizure theory, even in the context of a criminal

prosecution. Kingsland v. City of Miami, 382 F.3d 1220, 1236 (11th

Cir. 2004) (“normal conditions of pretrial release” do not

“constitute a continuing seizure barring some significant, ongoing

deprivation of liberty, such as a restriction on the defendant's

right to travel interstate”), abrogated on other grounds by

Aguirre, 965 F.3d at 1159. More recently, the Eleventh Circuit

held that “[t]o succeed on a Fourth Amendment claim for a seizure

pursuant to legal process in this context, a plaintiff must prove

that the officer took an affirmative act to continue the

prosecution.” Washington v. Howard, 25 F.4th 891, 912 (11th Cir.

2022). Such affirmative acts include filing the probation-

revocation petition and offering later testimony at the probation-

revocation hearing. Gervin, 139 F.4th at 1248. See also Lyon v.

Sheriff of Lake Cnty., Florida, No. 22-11839, 2023 WL 166889, at

*2 (11th Cir. Jan. 12, 2023) (“Under our precedents, Lyon was not

seized merely because he was required to appear in court.”)

Here, Officer Smith is entitled to qualified immunity as to

the Fourth Amendment malicious prosecution claim because there is

no allegation that she took affirmative acts to continue the City’s

prosecution of Berry. Additionally, the law was not clearly

established that the continuing seizure theory applies to civil

cases such as the code enforcement proceedings.

In sum, Officer Smith is not entitled to qualified immunity

on the claim of First Amendment retaliation based on the content

of plaintiff’s sign, but is entitled to qualified immunity on the

claim of First Amendment retaliation based on photographing

officers at the protest. Additionally, Officer Smith is not

entitled to qualified immunity on the claim of Fourth Amendment

violation based on the detention to issue the citation, but is

entitled to qualified immunity on the claim of Fourth Amendment

violation based on being required to appear at multiple hearings.

B. Pleading Deficiencies

Defendants next argue that the SAC “fails to state a claim

under any theory of relief, and dismissal is warranted.” (Doc.

#25, p. 3.) The Court discusses the First Amendment and the Fourth

Amendment arguments separately.

(1) First Amendment Retaliation Claims

As previously stated, in addition to alleging plaintiff was

engaged in constitutionally protected speech, the SAC must

plausibly allege that: (1) defendants’ retaliatory conduct

adversely affected Berry’s protected speech, and (2) there was a

causal connection between the retaliatory conduct and the adverse

effect on the speech. DeMartini, 942 F.3d at 1289. Defendants

challenge the sufficiency of the allegations of both these

elements.

Defendants argue that issuing and prosecuting the citation

caused only de minimis inconvenience on the exercise of Berry’s

First Amendment rights, which is insufficient to state a claim.

(Doc. #25, pp. 6-7.) When determining the adverse effect on a

plaintiff’s protected speech, courts “consider whether the

allegedly retaliatory conduct would likely deter a person of

ordinary firmness from the exercise of First Amendment rights.

This presents an objective question.” Huggins, 151 F.4th at 1281.

The SAC plausibly alleges sufficient facts to show that, viewed

objectively, the conduct of Defendants would likely deter a person

of ordinary firmness from the exercise of First Amendment rights.

Berry was approached by multiple officers, at least some of

whom were in uniform. At least one officer threatened to arrest

him and others, and it is clear from the circumstances that Berry

was not allowed to leave until the citation was written. The SAC

alleges that Berry’s “protest was effectively halted” by the

citation. (Doc. #23, p. 6.) The citation was an official charging

document which required Berry to appear at multiple mandatory Code

Enforcement Board hearings which could have resulted in civil

penalties. Viewed objectively and in the light most favorable to

Berry, as required at this stage of the proceedings, the Court

finds that the conduct was not de minimis and that a person of

ordinary firmness would likely be deterred from the exercise of

his or her First Amendment rights by Defendants’ conduct.

Defendants also challenge the sufficiency of the causation

element, arguing that Officer Smith’s subjective motivation was

the Ordinance, not the language on Berry’s sign. (Doc. #25, pp. 6-

7.) “In order to establish a causal connection, the plaintiff

must show that the defendant was subjectively motivated to take

the adverse action because of the protected speech. However, once

the plaintiff shows that her protected conduct was a motivating

factor, the burden shifts to the defendant to show that she would

have taken the same action in the absence of the protected conduct,

in which case the defendant cannot be held liable.” Castle v.

Appalachian Tech. Coll., 631 F.3d 1194, 1197 (11th Cir.

2011)(citations omitted.)

The SAC has plausibly asserted that the adverse action (the

citation) would not have occurred absent the words on Berry’s sign.

Officer Smith’s motivation to issue the citation was the words,

which she wrongly believed were not protected by the First

Amendment. The SAC sufficiently pleads this element of the claim.

Defendants also argue that the SAC fails to state either a

First Amendment or a Fourth Amendment claim because Officer Smith

had probable cause (or at least arguable probable cause) to issue

the citation. (Doc. #25, pp. 6-7.) As discussed earlier, it is

certainly true that the existence of probable cause, or arguable

probable cause in the context of qualified immunity, would preclude

both First and Fourth Amendment claims. But as the Court has

already found, Officer Smith lacked either arguable or actual

probable cause.

Even without any level of probable cause, Officer Smith can

prevail by showing that the seizure would have been made for some

lawful reason other than retaliation. Nieves, 587 U.S. at 404.

Viewing the facts in the SAC in favor of Berry, no such showing

has been made.

(2) Fourth Amendment Claims

Defendants argue that (a) the SAC does not contain a

sufficient nexus between the actions of Officer Smith and the

alleged violation of Berry’s Fourth Amendment rights; (b) the SAC

must plead more about Berry’s subjective feelings than that he

“did not feel free to leave”; and (c) receiving a citation from

Officer Smith “does not rise to the level sufficient to assert a

claim for unlawful seizure,” and there must be “some objective

action by Smith, other than the citation, that shows there was a

seizure.” (Doc. #25, p. 8.)

As discussed earlier, multiple officers approached Berry,

yelled profanities, and made threats of arrest. (Doc. #23, p. 2).

Before Officer Smith issued the citation, at least one officer

approached and demanded that Berry produce identification. (Id.).

Berry was detained while a citation was issued. The Court finds

that Berry has pled sufficient facts to show that a reasonable

person in Berry’s circumstances would not have felt free to leave

and was seized. The Court has already determined that Officer

Smith did not have sufficient reason to issue a citation to Berry

for violating the Ordinance. No additional action by Officer Smith

was required to constitute a seizure. Accordingly, Berry has

plausibly asserted a claim for unlawful seizure under the Fourth

Amendment.

Defendants also argue that the SAC “fails to plead a claim

for malicious prosecution” “because Plaintiff was never seized

pursuant to legal process” and the SAC “does not allege that

[Berry] was charged with any crime, received legal process with

respect to any charge, or that he was seized after any legal

process.” (Id. at 11-12.) “Given the lack of allegation of any

criminal charge or legal process, Plaintiff has not alleged that

[defendants] were somehow responsible for that legal process going

wrong.” (Id. at 12.)

Contrary to Defendants’ assertion, a malicious prosecution

claim does not require a plaintiff to have been criminally

prosecuted. See Alamo Rent-A-Car, Inc. v. Mancusi, 632 So. 2d

1352, 1355 (Fla. 1994) (“In order to prevail in a malicious

prosecution action, a plaintiff must establish that: (1) an

original criminal or civil judicial proceeding against the present

plaintiff was commenced or continued; . . . ”); Scott v. City of

Miami, 139 F.4th 1267, 1279 (11th Cir. 2025).

However, as discussed above, the SAC fails to sufficiently

plead that Berry was seized as a result of the citation merely

because he was required to appear in court since there is no

allegation that Officer Smith took any affirmative action to

continue the code enforcement proceedings. Accordingly, the Court

agrees with Defendants that Berry has failed to state a claim for

malicious prosecution.

In sum, the SAC plausibly sets forth claims of First Amendment

retaliation and Fourth Amendment seizure in connection with

issuance of the citation, but does not set forth a plausible claim

of malicious prosecution based on mandatory appearances in code

enforcement proceedings.

C. Monell Claim Against the City

The SAC asserts that the City is liable for the First and

Fourth Amendment violations under the principles established by

Monell. Generally, a local government may not be sued for

constitutional injuries inflicted by its employees. Monell, 436

U.S. at 694. Instead, the government as an entity is responsible

“when execution of a government's policy or custom, whether made

by its lawmakers or by those whose edicts or acts may fairly be

said to represent official policy, inflicts the injury.” Id. “To

prove a Monell claim, a plaintiff must show: (1) that his

constitutional rights were violated; (2) that the municipality had

a custom or policy that constituted deliberate indifference to

that constitutional right; and (3) that the policy or custom caused

the violation.” Teel v. Lozada, 99 F.4th 1273, 1279 (11th Cir.

2024) (quotation omitted). See also Andre, 148 F.4th at 1300.

Liability under Monell may be based on an official policy or

“a practice or custom that is so pervasive, as to be the functional

equivalent of a policy adopted by the final policymaker.” Khoury

v. Miami-Dade Cnty. Sch. Bd., 4 F.4th 1118, 1131 (11th Cir. 2021).

“A policy is a decision that is officially adopted by the

municipality, or created by an official of such rank that he or

she could be said to be acting on behalf of the municipality,”

while a “custom is an unwritten practice that is applied

consistently enough to have the same effect as a policy with the

force of law.” Goebert v. Lee Cnty., 510 F.3d 1312, 1332 (11th

Cir. 2007) (citations omitted.)

The City argues that the SAC has failed to state a claim under

Monell because Berry has failed to allege sufficient facts to

establish a pattern of unconstitutional conduct to impose

liability. (Doc. #25, pp. 15-16.) The City argues that the SAC

only proffered one other example of the challenged policy or

practice and “even one or two incidents of unconstitutional

activity is generally insufficient to impose liability against a

municipality.” (Id., p. 15.)

As explained by the Supreme Court,

it is plain that municipal liability may be

imposed for a single decision by municipal

policymakers under appropriate circumstances.

No one has ever doubted, for instance, that a

municipality may be liable under § 1983 for a

single decision by its properly constituted

legislative body—whether or not that body had

taken similar action in the past or intended

to do so in the future—because even a single

decision by such a body unquestionably

constitutes an act of official government

policy.

Pembaur v. City of Cincinnati, 475 U.S. 469, 480 (1986).

Here, Berry does not rely on custom or an unwritten policy or

practice of regulating free speech. Rather, Berry alleges that he

was cited under an Ordinance officially adopted and promulgated by

the City. Thus, Berry has pled sufficient plausible facts to hold

the City liable for any constitutional violations caused by the

Ordinance.

Berry must also plead sufficient facts to show that the

Ordinance was the “moving force” behind a violation of his

constitutional rights. See Barnett v. MacArthur, 956 F.3d 1291,

1296 (11th Cir. 2020). Berry has pled (and the City does not

dispute) that the Ordinance prohibits “[a]ny sign which contains

obscene language or graphics . . .[.]” Punta Gorda, Fla., Code of

Ordinances, ch. 26, § 11.5(z). Construing the facts pled by Berry

in his favor (as the Court is required to do at this stage in the

proceedings), the Court finds the SAC sufficiently pleads that the

Ordinance’s prohibition on certain signs was the moving force for

the detention and citation. As noted earlier, Berry has not

asserted sufficient facts to state a claim as to the videotaping.

The operative pleading alleges, in a conclusory fashion, that he

“was videotaping the entire protest, the videotaping was creation

of journalism,” and that “as a result of the ticket, [Berry’s]

journalism was stopped.” (Doc. #23, p. 6.) Outside of this

conclusory allegation, Berry’s complaint is devoid of any facts

showing a causal connection between his photojournalism and

Officer Smith’s issuance of the citation under the Ordinance.

Thus, even if Berry’s photojournalism was protected speech, he has

not plausibly set forth a causal connection between his

photojournalism and the citation. Accordingly, the City’s motion

to dismiss is granted as to Berry’s claim for First Amendment

retaliation based on his videotaping the protest activities.

Berry has pled sufficient facts to hold the City liable under

Monell for violation of his Fourth Amendment right to be free from

unreasonable seizure during issuance of the citation. Berry’s

claim for malicious prosecution under the Fourth Amendment fails

because there is no allegation that Officer Smith took any

affirmative action to continue the code enforcement proceedings

after she cited Berry pursuant to the Ordinance. Thus, the City

cannot be held liable under Monell for the malicious prosecution

claims because “Monell and its progeny do not ‘authorize[ ] the

award of damages against a municipal [entity] based on the actions

of one of its officers when in fact . . . the officer inflicted no

constitutional harm.’” Andre, 148 F.4th at 1306 (citing Teel, 99

F.4th at 1288), and the City’s Motion to Dismiss Berry’s claim for

malicious prosecution is granted.

Accordingly, it is now

ORDERED:

Defendants’ Motion to Dismiss is GRANTED IN PART AND DENIED

IN PART as follows:

(1) Officer Smith’s motion to dismiss the claim of First

Amendment retaliation for issuing a citation because of the

language on the sign is DENIED because Officer Smith is not

entitled to qualified immunity and the Amended Complaint states a

plausible claim;

(2) Officer Smith’s motion to dismiss the claim of First

Amendment retaliation for issuing the citation because of filming

the activities of the police and protesters is GRANTED because

Officer Smith is entitled to qualified immunity and the Amended

Complaint does not state a plausible claim;

(3) Officer Smith’s motion to dismiss the claim of Fourth

Amendment violation for stopping and detaining Berry while the

citation was issued is DENIED because Officer Smith is not entitled

to qualified immunity and the Amended Complaint states a plausible

claim;

(4) Officer Smith’s motion to dismiss the claim of Fourth

Amendment violation for maliciously prosecuting and compelling

plaintiff’s appearing before the Code Enforcement proceedings is

GRANTED because Officer Smith is entitled to qualified immunity

and the Amended Complaint does not state a plausible claim;

(5) The City’s motion to dismiss the claim of First Amendment

retaliation for issuing the citation because of filming the

activities of the police and protesters is GRANTED because

Plaintiff has failed to adequately plead constitutional harm by

the City;

(6) The City’s motion to dismiss the claim of Fourth Amendment

violation for maliciously prosecuting and compelling plaintiff’s

appearing before the Code Enforcement proceedings is GRANTED

because Plaintiff has failed to adequately plead constitutional

harm by the City;

(7) The City’s motion to dismiss is otherwise DENIED.

DONE AND ORDERED at Fort Myers, Florida, this 3rd day of

December 2025.

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