DEMPSEY

v.

BREVARD COUNTY, FLORIDA

This cause comes before the Court on Defendant John Vaughn’s (“Defendant”) Motion for Final Summary Judgment (Doc. 77 (the “Motion”)), Plaintiff Richard Jay Dempsey’s (“Plaintiff”) Response to Deny Defendant’s Motion for Final Summary Judgment (Doc. 82 (the “Response”)), and Defendant’s Reply thereto (Doc. 86 (the “Reply”)). Magistrate Judge Leslie Hoffman Price issued a Report recommending that this Court grant Defendant’s Motion. (Doc. 91 (the “Report”)). Plaintiff timely filed his objections. (Docs. 92, 93, 94 (the “Objection”)). Upon consideration, the Court finds the Report is due to be adopted and confirmed, and Defendant’s Motion is due to be granted.

I. BACKGROUND

The procedural and factual background as set forth in the Report are hereby adopted and made a part of this Order. (See Doc. 91, pp. 1–4, 7–15).

II. STANDARDS OF REVIEW

A. Report and Recommendation

When a party objects to a magistrate judge’s findings, the district court must

“make a de novo determination of those portions of the report . . . to which objection is made.” 28 U.S.C. § 636(b)(1). However, “[f]rivolous, conclusive, or general objections need not be considered by the district court.” United States v. Schultz, 565 F. 3d 1353, 1361 (11th Cir. 2009) (citation omitted). The district court “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” Id. The district court must consider the record and factual issues independent of the magistrate judge’s report, as de novo review is essential to the constitutionality of § 636. Jeffrey S. v. State Bd. of Educ., 896 F. 2d 507, 513 (11th Cir. 1990).

B. Summary Judgment

“The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a). The party moving for summary judgment must “cit[e] to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations . . ., admissions, interrogatory answers, or other materials” to support its position that it is entitled to summary judgment. FED. R. CIV. P. 56(c)(1)(A). “The court need consider only the cited materials.” FED. R. CIV. P. 56(c)(3). A genuine dispute of material fact is one from which “a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). However, “[a] mere scintilla of evidence in support of the non-movant is insufficient to defeat a motion for summary judgment.” Kesinger ex rel. Estate of Kesinger v. Herrington, 381 F. 3d 1243, 1249–50 (11th Cir. 2004) (citing Anderson, 477 U.S. at 247). To defeat a motion for summary judgment, the non-moving party must “go beyond the pleadings, and present affirmative evidence to show that a genuine issue of material fact exists.” Porter v. Ray, 461 F. 3d 1315, 1320 (11th Cir. 2006). The Court must draw all reasonable inferences in favor of the non-moving party but may disregard assertions that are “blatantly contradicted” by record evidence, such as videotape. See Scott v. Harris, 550 U.S. 372, 380 (2007).

C. Pro se Pleadings

“Pro se pleadings are held to a less stringent standard than pleadings drafted by attorneys and will, therefore, be liberally construed.” Tannenbaum v. United States, 148 F. 3d 1262, 1263 (11th Cir. 1998). However, “a pro se litigant does not escape the essential burden under summary judgment standards of establishing that there is a genuine issue as to a fact material to his case in order to avert summary judgment.” Brown v. Crawford, 906 F. 2d 667, 670 (11th Cir. 1990). Although courts show leniency to pro se litigants, courts “will not serve as de facto counsel or ‘rewrite an otherwise deficient pleading in order to sustain an action.’” Nalls v. Coleman Low Fed. Inst., 307 F. App’x 296, 298 (11th Cir. 2009) (quoting GJR Invs., Inc. v. County of Escambia, 132 F. 3d 1359, 1369 (11th Cir. 1998),

overruled on other grounds by Ashcroft v. Iqbal, 556 U.S. 662 (2009)).¹ Pro se litigants are still “subject to the relevant law and rules of court, including the Federal Rules of Civil Procedure.” Moon v. Newsome, 863 F. 2d 835, 837 (11th Cir. 1989), cert. denied, 493 U.S. 863 (1989).

III. DISCUSSION

In the Report, Magistrate Judge Hoffman Price recommended that the Court grant Defendant’s Motion and enter judgment in favor of Defendant and against Plaintiff. (Doc. 91, p. 35). Upon de novo review, and after considering Plaintiff’s Objection, the Court agrees with the findings and conclusions in the Report. Overall, Plaintiff’s Objection merely strings together sporadic factual allegations, the majority of which are “[f]rivolous, conclusive, or general.” (See generally Doc. 92); Schultz, 565 F. 3d at 1361 (citation omitted). The relevance and impact of these factual allegations on Magistrate Judge Hoffman Price’s legal analysis remains unclear. (See Doc. 92).2 Accordingly, Plaintiff’s Objection does

A. Plaintiff’s Obstruction In analyzing the undisputed material facts in the light most favorable to Plaintiff, Magistrate Judge Hoffman Price found that Plaintiff obstructed or resisted Defendant from exercising his lawful duties in violation of Florida Statute § 843.02. (See Doc. 91, pp. 22–33). Plaintiff objects that a “fact in dispute is obstruction.” (Doc. 92, p. 7). To support this, Plaintiff simply reiterates various allegations regarding his conduct during the investigation. (See id. at pp. 3, 7). However, in his Objection, Plaintiff still fails to “present affirmative evidence to show that a genuine issue of material fact exists.” (See id.); Porter, 461 F. 3d at 1320. Although Plaintiff relies on Mr. Curtis’ affidavit to assert his factual allegations, the Court agrees with the Report’s finding that even taking Mr. Curtis’

B. Florida Statute Violations

Pursuant to the probable cause affidavit, and as stated in the Report, Defendant arrested Plaintiff for violations of Florida Statute § 843.02, “Resist

Officer WO Viol,” and Florida Statute § 856.011, “Disorderly Intox – Miscellaneous.” (See Doc. 91, p. 11 (citing Doc. 79-1)). In his Objection, Plaintiff argues that the “Florida Statute does not contain brawling and fighting interfering with traffic. The state attorney committed a fraud by puting [sic] that in when the information was filed.” (Doc. 92, p. 2). It appears Plaintiff is objecting to Florida Statute § 877.03 as a charged count in the Information for Plaintiff’s criminal case,

State of Florida v. Richard Jay Dempsey, Case No. 052019MM023551AXXXXX. (See id.; see Doc. 82, pp. 30–31). Here, Plaintiff’s 42 U.S.C. § 1983 claim for false arrest is based on Plaintiff’s allegations that Defendant made false statements in the probable cause affidavit. (See Doc. 58, pp. 5–6). Accordingly, Magistrate Judge Hoffman Price correctly

Thus, considering Plaintiff’s § 1983 claim for false arrest centers on the charges that Plaintiff was arrested for, Plaintiff’s objection to Florida Statute § 877.03─as a charged count in the post-arrest Information─is not relevant to the analysis at hand. Consequently, Plaintiff’s objection regarding Florida Statute § 877.03 does not identify an adequate basis for this Court to overrule the Report.

C. Factual Objections

In the Report, Magistrate Judge Hoffman Price thoroughly addressed Plaintiff’s various factual arguments from his Response. (See generally Doc. 91). Plaintiff reasserts several of these factual arguments in his Objection.⁵ First, Plaintiff merely rehashes his perspective on how the subject incident unfolded, without supporting evidence and without addressing its specificity or

Accordingly, without more, Plaintiff’s factually based objections do not identify an adequate basis to overrule the Report.

IV. CONCLUSION

For the reasons set forth herein, it is ORDERED AND ADJUDGED as follows:

1. Plaintiff’s Objection (Docs. 92, 93, 94) to the Report is OVERRULED;
2. Magistrate Judge Hoffman Price’s Report and Recommendation (Doc. 91), filed on October 3, 2023, is ADOPTED and CONFIRMED and made a part of this Order;
3. Defendant’s Motion for Final Summary Judgment (Doc. 77) is

GRANTED; and 4. The Clerk is DIRECTED to enter judgment in favor of Defendant and against Plaintiff, terminate any other pending matters, and close the file.

ce.

PAUL G.

UNITED STATES®ISTRICT JUDGE

Copies furnished to: Counsel of Record Unrepresented Parties