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 is Defendants Officer Joseph Angelini and Officer Jose

Delgado’s Motion to Dismiss the Amended Complaint. (Doc. 26). Plaintiff

Andrew Sheets, proceeding pro se,1 responded. (Doc. 28). For the below

reasons, the Court denies the motion.

1 Although Plaintiff proceeds without a lawyer, he often litigates in federal court. See, e.g.,

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; Sheets v. Renz et al., 2:25-cv-

1000-KCD-DNF.

Background2

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

Defendants arrested Plaintiff as he engaged in a protest on a public sidewalk

in front of Sallie Jones Elementary School (“School”) in Punta Gorda.3 Plaintiff

carried a sign depicting aborted human fetuses in opposition to abortion.

Plaintiff also displayed an anti-police viewpoint by wearing a shirt saying,

“Fuck the Police.” (Doc. 25 ¶¶ 3, 21).

During his protest, Plaintiff encountered Dale Qualls and Megan

Wilson.4 Plaintiff alleges Qualls and Wilson were “counterprotestors” that

sought to “censor his message.” (Id. ¶ 12). During their encounter, Qualls

stated he is pro-choice and engaged Plaintiff in a “debate about abortion.” (Id.

¶¶ 28, 34). Plaintiff also alleges Qualls and Wilson exhibited “a viewpoint of

being Anti Andrew [S]heets.” (Id. ¶ 12). Qualls and Wilson disrupted

Plaintiff’s protest by using a bullhorn to drown out “all the disturbing and

disruptive things he was screaming.” (Id.). Wilson “told [Plaintiff] to get away

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).

3 Plaintiff states the events giving rise to his claims occurred on July 23, 2021. (See, e.g., Doc.

25 ¶ 10). That said, the timestamps on screenshots of the events Plaintiff includes in his

Amended Complaint indicate the incident occurred on July 22, 2021. (Id. ¶ 32). Defendants

also state the incident occurred on the earlier date. (Doc. 26 at 1).

4 Plaintiff alleges another individual named “A. Ackerman . . . wanted to become violent” and

beat up Plaintiff. (Doc. 25 ¶ 18). The Court previously discussed the irrelevance of the

allegations regarding Ackerman. (Doc. 23 at 8, 9). Because Plaintiff adds nothing new

regarding Ackerman, the Court disregards him in resolving this motion.

from the school [because] he was scaring kids and parents.”5 (Id. ¶ 25). Wilson

also shouted “we don’t want you here” at Plaintiff. (Id. ¶ 33). According to

Plaintiff, Qualls and Wilson’s counterprotest “was more disruptive[,] louder

and more aggressive” than his protest. (Id. ¶ 13). Yet Qualls and Wilson were

never arrested or charged by Defendants.6

By contrast, Defendants arrested Plaintiff for breach of the peace (Fla.

Stat. § 877.03) and disruption of a school function (Fla. Stat. § 877.13(1)(A)).7

Plaintiff alleges Officer Delgado “took the side of the counterprotestors and

physically removed [him] from the sidewalk using force.” (Doc. 25 ¶ 15). While

making the arrest, Officer Delgado pointed to Plaintiff’s sign and said, “you

don’t want that in front of little kids.” (Id.). Officer Delgado also said, “don’t

call me [c]op” as he “shoved” Plaintiff from the sidewalk. (Id.). Officer Angelini

wrote the incident report, which included the charges for Plaintiff’s arrest.

Plaintiff sues Defendants, claiming that they arrested him because of his

protest’s messages. He brings claims against Defendants Angelini and

5 Plaintiff relies on statements from Qualls and Wilson in Defendants’ incident report, which

is attached to the previous motion to dismiss. (Doc. 12-1). Because Plaintiff relies on the

report and its authenticity is undisputed, the Court may consider it. See Day v. Taylor, 400

F.3d 1272, 1276 (11th Cir. 2005).

6 Plaintiff references a video of the incident but provides no copy of it to the Court. He does

include photos which appear to be screenshots from the video. (Doc. 25 ¶¶ 30, 32, 36).

7 “Plaintiff was tried and convicted” on these charges. (Doc. 23 at 3). Plaintiff’s attempt to

overturn his conviction failed. See Sheets v. State, 365 So. 3d 377 (Fla. Dist. Ct. App. 2023)

(affirming Plaintiff’s convictions). So did his federal lawsuit against the judge who presided

over his criminal case. 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 complaint with prejudice).

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

under the First Amendment. (Doc. 25 ¶¶ 44–79). Defendants move to dismiss

all the claims against them, arguing that Plaintiff fails to state a claim, and

they are entitled to qualified immunity. (Doc. 26).

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

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

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

speech constitutes viewpoint discrimination when the specific motivating

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

restriction.” Sheets v. City of Punta Gorda, Fla., 415 F. Supp. 3d 1115, 1123–

24 (M.D. Fla. 2019) (quoting Jackson v. McCurry, 762 F. App’x 919, 930 (11th

Cir. 2019)). As the Court explained in its previous order, Plaintiff’s claim that

Defendants arrested him but not others who did not share his viewpoint is a

selective enforcement claim. (Doc. 23 at 10). “A critical element of a selective

enforcement claim is that a comparator or, in other words, others similarly

situated have been treated differently than the plaintiff.” Shadow Oaks, LLP

v. City of Ocala, No. 5:21-CV-564-ACC-PRL, 2022 WL 22247808, at *5 (M.D.

Fla. Nov. 4, 2022) (quotation omitted), report and recommendation adopted,

2022 WL 22247805 (Dec. 1, 2022). Defendants argue that Plaintiff still fails to

plead proper comparators, so his claims should be dismissed. (Doc. 26 at 12).

In response, Plaintiff points to Qualls and Wilson as comparators.

Defendants arrested Plaintiff for breach of the peace and disruption of a school

function while he expressed his anti-police and anti-abortion viewpoints

during his protest. At the same time, Qualls and Wilson—who allegedly did

not share Plaintiff’s viewpoints—engaged in a counter protest louder and more

disruptive than Plaintiff’s protest. Yet, Defendants only arrested Plaintiff.

Accepting these facts as true, Plaintiff plausibly states Qualls and Wilson as

comparators. Therefore, he states a First Amendment selective enforcement

claim.

Now, the retaliation claims. “To state a claim for First Amendment

retaliation, a plaintiff must allege that he engaged in protected speech, that

the official’s conduct adversely affected the protected speech, and that a causal

connection exists between the speech and the official’s retaliatory conduct.”

Echols v. Lawton, 913 F.3d 1313, 1320 (11th Cir. 2019) (citation omitted).

Plaintiff alleges Defendants arrested him in retaliation for the messages of his

protest. (Doc. 25 ¶¶ 15, 18).

Defendants argue they had probable cause to arrest Plaintiff, which

extinguishes his retaliation claim.8 Defendants are correct that “[t]he presence

of probable cause should generally defeat a First Amendment retaliatory arrest

claim.” DeMartini v. Town of Gulf Stream, 942 F.3d 1277, 1296 (11th Cir.

2019) (quotation omitted). That said, the existence of probable cause does not

end the inquiry.

In Nieves v. Bartlett, 587 U.S. 391 (2019), the Supreme Court created a

narrow exception to the rule that the existence of probable cause bars a

retaliatory arrest claim. The exception applies “when a plaintiff presents

objective evidence that he was arrested when otherwise similarly situated

individuals not engaged in the same sort of protected speech had not been.” Id.

at 407; see also Gonzalez v. Trevino, 602 U.S. 653, 655 (2024) (explaining the

8 The Court previously determined probable cause existed for Plaintiff’s arrest. (Doc. 23 at

7).

Nieves exception). Proper comparators satisfy this exception. See Gonzalez,

602 U.S. at 668 (Alito, J., concurring) (“The Nieves exception is most easily

satisfied by strong affirmative evidence that the defendant let other

individuals off the hook for comparable behavior.”); Schilling v. Doherty, No.

25-10321, 2026 WL 412038, at *3 (11th Cir. Feb. 13, 2026) (noting that

evidence defendants failed to arrest “other protestors” for violating the law

plaintiff violated could invoke the Nieves exception).

Plaintiff relies on Nieves and Gonzalez to argue his retaliation claim

should survive dismissal. In support, he points to Qualls and Wilson. He

argues they also engaged in disruptive activity by countering his protest, yet

Defendants did not arrest or charge them.9 As previously discussed, Qualls

and Wilson—who allegedly do not share Plaintiff’s viewpoints—are valid

comparators. So under Nieves, Plaintiff’s retaliation claims survive dismissal

under Rule 12(b)(6).

This leaves Defendants’ qualified immunity defense. “The doctrine of

qualified immunity protects government officials ‘from liability for civil

9 Plaintiff also relies on three protests where he alleges Defendants issued no citations: a

March for Our Lives protest that occurred in 2018, a Black Lives Matter protest that occurred

in 2020, and an “abortion protest” that occurred in 2022. (Doc. 25 ¶¶ 38–43). These

allegations do not invoke the Nieves exception, as Plaintiff fails to allege any of the protestors’

conduct violated the laws for which he was arrested and convicted. Nor does he allege

Defendants were present at these protests and exercised their discretion not to arrest. See

Sheets v. Martin, No. 2:25-CV-444-SPC-NPM, 2026 WL 74078, at *3 (M.D. Fla. Jan. 9, 2026)

(rejecting identical comparators for similar reasons).

damages insofar as their conduct does not violate clearly established statutory

or constitutional rights of which a reasonable person would have known.’”

Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald,

457 U.S. 800, 818 (1982)). “In order to receive qualified immunity, the public

official must first prove that he was acting within the scope of his discretionary

authority when the allegedly wrongful acts occurred.” Carruth v. Bentley, 942

F.3d 1047, 1054 (11th Cir. 2019) (internal quotation marks and citation

omitted). “When a court concludes the defendant was engaged in a

discretionary function, ‘the burden shifts to the plaintiff to show that the

defendant is not entitled to qualified immunity.’” Hill v. Cundiff, 797 F.3d 948,

978 (11th Cir. 2015) (quoting Holloman ex rel. Holloman v. Harland, 370 F.3d

1252, 1264 (11th Cir. 2004)).

The Court finds that Defendants’ actions fall within their discretionary

authority. “Investigating crimes, conducting searches, and making arrests are

legitimate job-related functions within the discretionary authority of police

officers.” Nigro v. Carrasquillo, 152 F. Supp. 3d 1364, 1368 (S.D. Fla. 2015)

(quotation omitted), aff’d, 663 F. App’x 894 (11th Cir. 2016). Plaintiff does not

dispute this point. So the only question is whether he demonstrates that

Defendants violated clearly established law.

Plaintiff meets his burden to show that Defendants are not entitled to

qualified immunity at this stage. A plaintiff may show that a right was clearly

established by pointing to a “broader, clearly established principle that should

control the novel facts of his situation.” Garcia v. Casey, 75 F.4th 1176, 1185

(11th Cir. 2023) (cleaned up). Plaintiff takes this approach. (Doc. 28 at 4)

(citing Moms for Liberty - Brevard Cnty., FL v. Brevard Pub. Schs., 118 F.4th

1324 (11th Cir. 2024)). Eleventh Circuit case law holds that conduct—alleged

as viewpoint discrimination and retaliation—violates clearly established law.

See, e.g., Jarrard v. Sheriff of Polk Cnty., 115 F.4th 1306, 1325 (11th Cir. 2024)

(“[T]he law is clearly established that the state cannot engage in viewpoint

discrimination.”); Bennett v. Hendrix, 423 F.3d 1247, 1256 (11th Cir. 2005)

(“[I]t is settled law that the government may not retaliate against citizens for

the exercise of First Amendment rights|.]” Gnternal quotation omitted)). At

this stage, Defendants are not entitled to qualified immunity for their actions.

Accordingly, it is now

ORDERED:

Defendants’ Motion to Dismiss the Amended Complaint (Doc. 26) is

DENIED.

DONE and ORDERED in Fort Myers, Florida on March 21, 2026.

UNITED STATES DISTRICT JUDGE

Copies: All Parties of Record