UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF FLORIDA 

GAINESVILLE DIVISION 

 

CHARLES JAMES GRAPSKI, ) 

 ) 

 Plaintiff, ) CASE NO.: 1:10-cv-00140-MP-GRJ 

v. ) 

 ) 

CITY OF ALACHUA, FLORIDA, ) 

a Florida municipal corporation, ) 

CLOVIS WATSON, JR., individually, ) 

JEAN CALDERWOOD, individually, ) 

ROBERT E. JERNIGAN, individually, ) 

GIB COERPER, individually, and ) 

PATRICK BARCIA, JR., individually, ) 

 ) 

 Defendants. ) 

 /

PLAINTIFF’S RESPONSE TO THE CITY’S MOTION TO DISMISS 

AMENDED COMPLAINT

 COMES NOW the Plaintiff, by and through his undersigned attorneys, and 

responds to the Motion to Dismiss (Doc. 31) filed by the CITY OF ALACHUA and says: 

 1. In order to state a cause of action under 42 U.S.C. §1983, Plaintiff need 

only plead that a “person” has deprived him of a federal right under color of state law. 

The City is a “person” under §1983 and is fully liable to Plaintiff for violating his rights. 

 2. Plaintiff has properly pled that the violation of his civil rights was the 

result of a custom or policy of the City of Alachua, established and implemented by its 

final decision makers, including City Manager Watson, Police Chief Jernigan, Mayor 

Calderwood and Mayor Coerper. The City of Alachua engaged in a calculated effort over 

several years to censor Plaintiff’s political speech and to harass him until he abandoned 

his political advocacy. 

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 3. Plaintiff has also stated a cause of action under state law for a variety of 

tort offenses and will show that there are no legal or statutory bars to maintaining those 

actions. 

MEMORANDUM OF LAW

STANDARD OF REVIEW

 For the purposes of the Motion to Dismiss, the Court must view the allegations of 

the Complaint in the light most favorable to the Plaintiff, must consider the allegations of 

the Complaint as true, and must accept all reasonable inferences therefrom. See, Jackson 

v. Okaloosa County, Fla., 21 F.3d 1531, 1534 (11th Cir. 1994); See, also, Speaker v. U.S. 

Centers for Disease Control and Prevention, 623 F.3d 1371, 1379 (11th Cir. 2010). 

“[O]nce a claim has been stated adequately, it may be supported by showing any set of 

facts consistent with the allegations in the complaint.” Bell Atlantic Corp. v. Twombly, 

550 U.S. 544, 563, 127 S.Ct. 1955, 1969 (2007).1 “[A] well-pleaded complaint may 

proceed even if it strikes a savvy judge that actual proof of those facts is improbable, and 

that a recovery is very remote and unlikely.” Twombly, 550 U.S. at 556. 

I. PLAINTIFF’S COMPLAINT COMPLIES WITH THE REQUIREMENTS 

OF RULE 8(a). 

 Given the complexities of this case, Plaintiff’s Amended Complaint is the very 

antithesis of a shotgun pleading. Rather, the Amended Complaint represents the correct 

balance between the need for specificity required in a civil rights action and the need to 

 

1

 The Eleventh Circuit no longer employs a heightened form of scrutiny when evaluating 

civil right claims. Our Circuit now recognizes that the heightened pleading requirement 

was overruled by Ashcroft v. Iqbal, U.S. , 129 S.Ct. 1937, 1949 (2009) and that the 

Iqbal / Twombly standards apply to every case, including §1983 actions. See, Randall v. 

Scott, 610 F.3d 701, 710 (11th Cir. 2010). 

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draft a relatively concise pleading. This is a complex story involving many inter-related 

events and multiple individuals acting over a period of several years. Plaintiff has done a 

yeoman’s job of relating that complex story in a sensible and orderly manner, identifying 

the particular policies and policymakers, and setting forth all of those separate legal 

theories which support a recovery under the U.S. Constitution or state law. In terms of 

format, it is appropriate to incorporate specific facts listed in the common allegations in 

support of each separate claim.2

 Rules 8(a) Fed.R.Civ.P. simply requires that a complaint set forth a plaintiff’s 

claim in a straightforward manner. In this case, the City essentially complains that the 

Amended Complaint is very long and takes a modicum of effort to read. (Doc. 31 at 4-7). 

Compare, Barnes v. A. Sind & Associates, 32 F.R.D. 39, 40 (D. Md. 1963) (“[S]hort of 

abuse or practical impropriety, a reasonable latitude should be allowed to a pleader in the 

statement of his claim or defense; and that not every dubious or errant phrase in a 

pleading should be eradicated from it to suit the taste of a critical adversary.”). Federal 

pleadings are only required to give reasonable notice to defendants of the claims asserted. 

See, Harrison v. Benchmark Electronics Huntsville, Inc., 593 F.3d 1206, 1214 (11th Cir. 

2010), quoting Twombly, 550 U.S. at 555, 127 S.Ct. at 1964 (“The point is to ‘give the 

defendant fair notice of what the claim is and the grounds upon which it rests.’”). There is 

no question here that the City understood the Amended Complaint and was able to 

respond fully and comprehensively to all of the claims asserted. 

 

2

 Plaintiff has done so selectively without simply readopting every allegation in every 

previous paragraph in each count. For example, the introductory paragraph to Count IV 

incorporates only the following preceding paragraphs: “1 through 5, 10 through 34, 69 

through 102 and 112 through 128” (Doc. 34 at 28, ¶167). 

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Dismissal under Rule 8 is “usually reserved for those cases in which the 

complaint is so confused, ambiguous, vague, or otherwise unintelligible 

that its true substance, if any, is well disguised.” Salahuddin v. Cuomo, 

861 F.2d 40, 42 (2d Cir. 1988). To merit dismissal, a complaint must be so 

long and confusing as to “overwhelm the defendants' ability to understand 

or to mount a defense.” Wynder v. McMahon, 360 F.3d 73, 80 (2d Cir. 

2004); see also In re Parmalat Sec. Litig., 375 F.Supp.2d 278, 311 (S.D. 

N.Y. 2005) (declining to dismiss a 368-page complaint). It is “generally ... 

an abuse of discretion to deny leave to amend when dismissing a nonfrivolous original complaint on the sole ground that it does not constitute 

the short and plain statement required by Rule 8.” 

Warner Bros. Entertainment Inc. v. Ideal World Direct, 516 F.Supp.2d 261, 269 (S.D. 

N.Y. 2007). 

 Plaintiff is entitled to present multiple causes of action, including both 

constitutional and state law claims.3 He is obligated to support those claims with 

sufficient facts to demonstrate that the claims are not conclusory or speculative. Plaintiff 

has done so here with the detail necessary to give Defendants proper notice of their 

liability and the grounds therefore. See, Barnes v. A. Sind & Assoc., 32 F.R.D. at 40 

(“What is a ‘short and plain’ statement depends upon the nature of the case.”); See, also, 

North Carolina v. McGuirt, 114 Fed.Appx. 555, 558, 2004 WL 2603703, *2 (4th Cir. 

2004) (“[C]ourts have looked to various factors, including the length and complexity of 

the complaint... [and] whether the complaint was clear enough to enable the defendant to 

know how to defend himself...”). 

 

3

 Plaintiff has alleged that the City engaged in a series of police actions against him, all 

of which are part of the same campaign of harassment and censorship. There is nothing 

wrong with claiming that the actions, individually and collectively, have violated 

Plaintiff’s constitutional rights. Similarly, there is nothing wrong with asserting that a 

particular action was both a state law tort and a Federal constitutional violation. See, 

generally, Monroe v. Pape, 365 U.S. 167, 183, 81 S.Ct. 473 (1961) (The fact that a state 

law remedy is available does not preclude the federal cause of action). 

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II. NO PART OF THE AMENDED COMPLAINT IS BARRED BY THE 

STATUTE OF LIMITATIONS OR BY ESTOPPEL. 

A. Plaintiff’s claims associated with the May 1, 2006 arrest were timely 

filed. 

 Grapski concedes that any cause of action he might have had for the arrest on 

May 1, 2006 is time barred. However, the Plaintiff has not alleged a false arrest claim 

with respect to the May 1st incident. Rather, Plaintiff has asserted First Amendment 

claims tied to the City’s efforts to pursue those charges4

 and a claim for negligent 

supervision / training against the City.5

 Those claims did not mature until November 16, 

2006, when the charges against Plaintiff were dismissed as unwarranted in law and fact. 

 In Florida, the statute of limitations for both acts of negligence and intentional 

torts is four years, §§95.11 (a), (o), Fla.Stat. The four year period starts to run when the 

cause of action accrues. The “cause of action accrues when the last element constituting 

the cause of action occurs.” §95.031(1), Fla.Stat. Plaintiff’s claims against the City 

 

4

 The City raises the issue of sovereign immunity in a footnote, relying on a case which 

holds that a municipality cannot be sued for malicious prosecution under Florida law. 

(Doc. 31 at 8, fn 5 citing Coconut Creek v. Fowler, 474 So.2d 820 (Fla. 4th DCA 1985). 

However, Plaintiff has not sued the City for the state law tort of malicious prosecution. 

The claim for malicious prosecution in Count VI is limited to two individuals, Watson 

and Jernigan. (Doc. 24 at 40-42). Plaintiff has sued the City for First Amendment 

violations associated with the May 1st arrest. Those Federal claims are not affected by 

state statutes purporting to limit municipal liability. See, Monell v. Department of Social 

Services of City of New York, 436 U.S. 658, 690, 98 S.Ct. 2018, 2035 (1978) (“Local 

governing bodies therefore, can be sued directly under § 1983 for monetary, declaratory, 

or injunctive relief...”). With respect to Plaintiff’s state tort action against the City 

[Count VII Doc. 24 at 42-45], the limitation on the waiver of sovereign immunity found 

in §768.28(9), Fla.Stat. applies only to intentional acts and does not encompass actions 

founded on negligence. Accordingly, Plaintiff can sue the City for negligence without 

triggering the immunity discussed in Coconut Creek. 

5

 The City claims, incorrectly, that Plaintiff cannot state a cause of action against a 

municipality for negligent training or negligent supervision. The law clearly holds 

otherwise. See, argument infra at 18-20. 

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ripened only when the prosecution arising from the May 1, 2006 arrest terminated in his 

favor. See, Olson v. Johnson, 961 So.2d 356, 359-60 (Fla. 2d DCA 2007) (“For a cause 

of action for malicious prosecution, the right to maintain a suit arises upon termination of 

the prosecution favorably to the plaintiff.”); See, also, Whiting v. Traylor, 85 F.3d 581, 

584 (11th Cir. 1996) (Stating that malicious prosecution is the closest analog to a §1983 

action claiming arrest and prosecution for improper purposes). 

 The charges against Plaintiff were dismissed on November 16, 2006. (Doc. 24 at 

9). The instant action was commenced prior to November 16, 2010.6 Plaintiff’s claims for 

violation of his First Amendment rights and for negligent supervision associated with the 

2006 incident are therefore brought within the applicable statute of limitations. 

B. Heck has no application to this case; Plaintiff is not estopped from 

bringing charges associated with a false arrest for which he was 

acquitted.7

 Grapski has asserted claims against the City arising out of his arrest on August 13, 

2007 and the resulting unsuccessful prosecution. (Doc. 24 at 31-40, 54-57 [Counts V and 

 

6

 The Amended Complaint was filed on November 5, 2010, which represents a timely 

filing. (Doc. 24). However, Plaintiff’s claims would actually relate back to the date the 

original Complaint was filed; to-wit: July 20, 2010. (Doc. 1). See, Moore v. Baker, 989 

F.2d 1129, 1131 (11th Cir. 1993) (“An amendment relates back to the original filing...”) 

7

 Much of the City’s brief, and all of the hundreds of pages for which the City seeks 

judicial notice (Doc. 16), is devoted to character assassination rather than legal argument. 

See, e.g., Doc. 31 at 14-15 referring to GRAPSKI as a “habitual felony offender” and at 2 

fn 1 decrying his “maniacal outburst” at a court hearing. The fact that the Plaintiff has 

been convicted of a crime and is passionate in his political advocacy does not mean that 

the Constitution has abandoned him. It does no disservice to the civil rights movement to 

remember that Martin Luther King, Jr. spent his fair share of time in jail in pursuit of 

political reforms which were not popular with his contemporaries. See, “Letter from 

Birmingham Jail” April 16, 1963, M.L. King, Jr., text accessible at 

www.stanford.edu/group/King/frequentdocs/birmingham.pdf. (Accessed 12/19/20). 

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XIII]).8

 The City has attacked these claims on the alleged grounds that they constitute a 

collateral attack on unreversed convictions in violation of the rule of Heck v. Humphrey, 

512 U.S. 477, 114 S.Ct. 2364 (1994). 

 Heck has no application to this case. In the first instance, Grapski makes no claim 

arising out of an unreversed conviction. The allegations regarding these matters appear in 

paragraphs 185 through 227 of the Amended Complaint. (Doc. 24). They allege, inter 

alia, that Grapski was arrested and prosecuted on charges of trespass, battery upon 

Defendant Jernigan, and resisting arrest with violence. They also specifically allege that 

Grapski was ACQUITTED on these three charges. (Doc 24 at 38, ¶225). To clarify 

matters further, Grapski specifically stated that he is not pursuing any claims with respect 

to the charges on which he was convicted. (Doc 24 at 38, ¶226).9

 There is no necessary 

factual or legal relationship between the invalid arrest and the claim of battery on a law 

enforcement officer that came well afterwards. 

 Because Heck pertains to collateral attacks on an unreversed conviction it has no 

application to claims arising out of acquittals, such as those Grapski has made. Dyer v. 

Lee, 488 F.3d 876 (11th Cir. 2007) demonstrates the narrowness of Heck’s holding. 

There, the tort plaintiff had pleaded guilty to a charge of resisting an arrest with violence. 

Id. at 882. The appellate court held that Heck would not bar a civil action based upon 

 

8

 The City incorrectly includes Counts XII, XIV and XV in its Motion to Dismiss. 

Those Counts are brought only against Jernigan and Barcia as individuals and are not 

directed to the City. (Doc. 24 at 53-54, 57-61). 

9

 Plaintiff’s conviction is currently, on appeal. See, Grapski v. State, (Fla. 1st DCA Case 

No.: 1D10-333). Grapski was convicted on charges of battering a police officer as a result 

of an incident that occurred after his false arrest and in a different location. The 

allegations in Plaintiff’s Complaint are not contradicted by the documents the Defendant 

filed in conjunction with its Request for Judicial Notice. (Doc. 16). 

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excessive force used upon the plaintiff after the arrest because success on the claim 

would “not negate the underlying conviction.” Id. at 883. This is an a fortiori case. 

 There is nothing inconsistent about Plaintiff’s claim that he was falsely arrested10

and the State’s claim that a law enforcement officer was subsequently battered. As the 

leading case in this Circuit put it: 

Because an illegal search or arrest may be followed by a valid conviction, 

see id., a successful §1983 action for Fourth Amendment search and 

seizure violations does not necessarily imply the invalidity of a conviction. 

As a result, Heck does not generally bar such claims. See Datz v. Kilgore, 

51 F.3d 252, 253 n. 1 (11th Cir. 1995) (per curiam)... (footnotes omitted). 

Hughes v. Lott, 350 F.3d 1157, 1160-61 (11th Cir. 2003); See, also, Cedeno v. 

Gee, 2010 WL 1417273, *4 (M.D. Fla. 2010). 

 The fact that Plaintiff was convicted of battery on a law enforcement officer says 

nothing about the lawfulness of his arrest or his ability to pursue damages for an illegal 

arrest. See, Dyer v. Lee, 488 F.3d at 879 (“[T]he lawfulness of the arrest is not an element 

of the offense of resisting arrest with violence.”). Plaintiff states a cause of action against 

the Defendants in connection with the August 13, 2007 arrest and the Motion to Dismiss 

must be denied.11

III. PLAINTIFF HAS SATISFIED THE MONELL REQUIREMENTS; THE 

COMPLAINT PROPERLY ALLEGES A VIOLATION OF 

CONSTITUTIONAL RIGHTS UNDER COLOR OF LAW BASED ON AN 

ESTABLISHED CUSTOM OR POLICY. 

 

10 The jury acquitted Grapski on the original charge that he was trespassing on City 

property. (Doc 24 at 38, ¶225). 

11 The Defendant’s discussion of cases involving the excessive use of force is inapposite. 

(Doc. 31 at 11). Excessive use of force cases typically presuppose that probable cause 

existed for the arrest but claim that the manner in which the arrest was effected violated 

the Fourth Amendment. Here, Grapski alleges that there was no probable cause for his 

arrest and makes no mention of excessive force. (Doc. 24 at 36). 

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 A. Plaintiff properly alleges the existence of a custom or policy. 

 Plaintiff properly states a cause of action against the City for violation of his 

Federal civil rights under 42 U.S.C. §1983: 

By the plain terms of §1983, two - and only two - allegations are required 

in order to state a cause of action under that statute. First, the plaintiff 

must allege that some person has deprived him of a federal right. Second, 

he must allege that the person who has deprived him of that right acted 

under color of state or territorial law. 

Gomez v. Toledo, 446 U.S. 635, 640, 100 S.Ct. 1920, 1923 (1980); See, also, McKinley 

v. Kaplan, 177 F.3d 1253, 1257-58 (11th Cir. 1999) (Same). 

 While the City characterizes Plaintiff’s Complaint as an “ill-conceived attempt to 

inflate basic, pedestrian interactions into claims of constitutional deprivation” (Doc. 31 at 

6), the City does not actually argue that its repeated arrests and removal of Plaintiff from 

public meetings were lawful.12 Furthermore, the City does not claim that the individuals 

named as responsible parties were not in policymaking positions13 or that those 

individuals were not operating under color of state law.14 Instead, the City argues that 

Plaintiff has not sufficiently pled the existence of a custom or policy. (Doc. 31 at 12-16). 

 

12 See, Ortega v. Christian, 85 F.3d 1521, 1526 (11th Cir. 1996) (“A detention on the 

basis of a false arrest presents a viable section 1983 action.”). 

13 Plaintiff properly identifies the relevant policymaker in each of his Counts. See, e.g., 

Doc. 24 at ¶¶ 33, 34, 44, 63, 89, 99, 109, 130, 141, 193. 

14 “Misuse of power, possessed by virtue of state law and made possible only because 

the wrongdoer is clothed with the authority of state law, is action taken ‘under color of’ 

state law.’” Monroe v. Pape, 365 U.S. 167, 184, 81 S.Ct. 473, 482 (1961). In the Eleventh 

Circuit, “[a] person acts under color of state law when he acts with authority possessed by 

virtue of his employment with the state,” Almand v. DeKalb County, 103 F.3d 1510, 

1513 (11th Cir. 1997). Plaintiff specifically alleged that the Defendants were operating 

under color of law and that abuse of their legal authority was the proximate cause of 

Plaintiff’s constitutional injuries. (Doc. 24 at 17-19). 

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 Under Monell v. New York City Department of Social Services, 436 U.S. 658, 98 

S.Ct. 2018 (1978), Plaintiff’s claim against the City cannot rest on respondeat superior, 

but must allege a policy, practice or custom. Obviously, no city is going to adopt a formal 

written policy directing its agents to violate the constitutional rights of its citizens. 

However, a viable claim can be stated based on an unofficial custom which is sufficiently 

widespread so that it can be considered to have assumed the force of law: 

Clearly, the City did not have a formal policy condoning or endorsing 

sexual harassment or sexual assault by City employees. Nevertheless, 

§1983 liability may be imposed on a municipality based on “governmental 

‘custom’ even though such a custom has not received formal approval 

through the body’s official decisionmaking channels.” ...: 

[t]o prove § 1983 liability against a municipality based on 

custom, a plaintiff must establish a widespread practice 

that, “although not authorized by written law or express 

municipal policy, is so permanent and well settled as to 

constitute a ‘custom or usage’ with the force of law.” 

[Brown v. City of Fort Lauderdale, 923 F.2d 1474 (11th Cir. 1991)] at 

1481 (citations omitted). In addition, we have also held that a 

municipality’s failure to correct the constitutionally offensive actions of its 

employees can rise to the level of a custom or policy “if the municipality 

tacitly authorizes these actions or displays deliberate indifference” towards 

the misconduct. Brooks v. Scheib, 813 F.2d 1191, 1193 (11th Cir. 1987). 

Griffin v. City of Opa-Locka, 261 F.3d 1295, 1308 (11th Cir. 2001). 

 “In order for a plaintiff to demonstrate a policy or custom, it is generally 

necessary to show a persistent and wide-spread practice.” Ludaway v. City of 

Jacksonville, Fla., 245 Fed.Appx. 949, 951 (11th Cir. 2007). However, “[m]unicipal 

liability may be imposed for a single decision by municipal policymakers under 

appropriate circumstances.” Cooper v. Dillon, 403 F.3d 1208, 1221 (11th Cir. 2005) 

quoting Pembaur v. City of Cincinnati, 475 U.S. 469, 480, 106 S.Ct. 1292, 1298 (1986); 

See, also, Doe v. Faerber, 446 F.Supp.2d 1311, 1316 (M.D. Fla. 2006) (“Even in the 

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absence of an express policy or custom, a local government body can be held liable ‘for a 

single act or decision of a municipal official with final policymaking authority in the area 

of the act or decision.’”). In this case, Plaintiff has asserted many separate violations of 

his rights over a period of years, each of which lends credence to his claim that the City 

has adopted and enforced a policy to thwart Plaintiff’s political activities.15

 Along these same lines, the Eleventh Circuit has held that a government can be 

deemed to have ratified the unconstitutional acts of its employees where it fails to correct 

constitutional violations: 

A causal connection can be established “when a history of widespread 

abuse puts the responsible supervisor on notice of the need to correct the 

alleged deprivation, and he fails to do so,” 

Gonzalez v. Reno, 325 F.3d 1228, 1234-35 (11th Cir. 2003); See, also Fundiller v. City 

of Cooper City, 777 F.2d 1436, 1443 (11th Cir. 1985) (“[A] persistent failure to take 

disciplinary action against officers can give rise to the inference that a municipality has 

ratified conduct, thereby establishing a “custom” within the meaning of Monell.”); Kopf 

v. Wing, 942 F.2d 265, 269 (4th Cir. 1991) (Custom or policy can be shown by the 

“irresponsible failure by municipal policymakers to put a stop to or correct a widespread 

pattern of unconstitutional conduct by police officers of which the specific violation is 

simply an example.”). 

 Oftentimes, the claim of blind indifference takes the form of a claim that the 

 

15 The City inexplicably asserts that “the ‘series’ of unconstitutional conduct, at best, 

comes down to a single arrest on 2/12/07 and the resulting prosecution...”. (Doc. 31 at 

14). The City studiously ignores the remainder of Plaintiff’s Amended Complaint which 

alleges three arrests, two instances of removal from City Commission meetings, several 

instances in which trespass notices were improperly issued and a host of harassing 

actions, including the leaking of private financial information. See, Doc. 24 generally. 

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government failed to adequately train its employees despite knowledge that training was 

necessary to avoid particular constitutional abuses: 

Additionally, there are “limited circumstances” in which a failure to train 

or supervise can be the basis for liability under §1983... These “limited 

circumstances” occur only where (1) the government entity inadequately 

trains or supervises its employees, (2) this failure to adequately train or 

supervise is the policy of the government entity, and (3) the policy causes 

its employees to violate a citizen’s constitutional rights. 

Doe v. Faerber, 446 F.Supp.2d 1311, 1316-17 (M.D. Fla. 2006); See, also Gold v. City 

of Miami, 151 F.3d 1346, 1350 (11th Cir. 1998) (“[T]he Supreme Court has further 

explained that a plaintiff may prove a city policy by showing that the municipality’s 

failure to train evidenced a “deliberate indifference” to the rights of its inhabitants...”). 

 The City suggests that it was free to abuse the Plaintiff and deny access to its 

facilities because the buildings are owned by the City: 

In regard to the complaints that GRAPSKI was “removed” from CITY 

property, the law is clear that the CITY has the same right as a private 

landowner to issue a trespass warning against any person so as to allow 

the orderly functioning of public business. Adderly v. Florida 385 U.S. 39 

(1966). 

(Doc. 31 at 14). Adderly clearly does not allow government to control speech and access 

to the same extent as a private landowner. Rather, Adderly stands for the proposition that 

government may impose content-neutral limits on speech in non-public fora. In Adderly, 

the speech took place at a jail – a singularly inappropriate place for a protest. 

 In contrast, Grapski sought to speak at a city commission meeting and requested 

access to city leaders at their public offices during normal business hours. All of those 

activities took place at what the Courts refer to as limited public fora. See, Brown v. City 

of Jacksonville, Fla., 2006 WL 385085, 6 (M.D. Fla. 2006) and cases cited therein. The 

government’s ability to restrict speech and access in those circumstances is decidedly 

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limited and is not equivalent to that of a private landowner. See, generally, Perry Educ. 

Ass’n. v. Perry Local Educators’ Assn., 460 U.S. 37, 45, 103 S.Ct. 948, 955 (1983); 

Brown v. Jacksonville, supra. When those restrictions are based on the content of speech, 

as Grapski alleges here,16 the government action is always unconstitutional unless 

supported by a compelling interest. See, e.g., Jones v. Heyman, 888 F.2d 1328, 1331 

(11th Cir. 1989).17 

B. Plaintiff properly alleges liability under Monell for his “class of one” Equal 

Protection claim. 

 The City makes the nonsensical argument that, because Plaintiff is the only 

person against whom the City has applied its policy of censorship and harassment, there 

can be no policy for purposes of Monell. (Doc. 31 at 14-14).18 In fact there is nothing 

inconsistent in pleading that the City has established a policy which it has applied, thus 

far, only against a single citizen. Indeed, ever since the Supreme Court decided Pembaur 

v. City of Cincinnati, 75 U.S. at 481 106 S.Ct. at 1298, it has been “plain that municipal 

liability may be imposed for a single decision by municipal policymakers under 

 

16 See, e.g., Doc. 24 at ¶¶ 29, 30, 67, 97, 99, 111, 116, 127, 268, 320. 

17 The City could not categorically bar Grapski from speaking at public meetings or 

complaining to City officials even if he had been disruptive in the past. Allegations of a 

past or possible future offense cannot serve to justify a prior restraint. See, Near v. State 

of Minnesota, 283 U.S. 697, 720 51 S.Ct. 625, 633 (1931); Brown v. City of Jacksonville, 

supra. (Even if citizen could be removed on one occasion for disruptive behavior, that 

behavior would not warrant future restraints on her ability to attend public hearings). 

18 In a fit of scholarly embarrassment, the City confesses that “outside the very limited 

14th Amendment Equal Protection context, undersigned counsel is unaware of any 

precedent applying a ‘class of one’ standard to establish municipal constitutional 

liability.” (Doc. 31 at 14). It should be obvious that all “class of one” claims are 

necessarily brought under the Equal Protection clause of the Fourteenth Amendment. The 

citations to Anderson and Murphy, infra might guide opposing counsel’s future research 

with respect to the Monell issue in the context of a class of one claim. 

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appropriate circumstances.” In this case Grapski has alleged that City Manager Watson, 

Police Chief Jernigan, and Mayors Calderwood and Coerper all took wrongful actions 

that deprived him of constitutional rights while acting as the City’s final decision maker. 

 At least two Federal Courts have previously addressed this precise argument: 

Here, defendants argue that because plaintiff states he was a “class of 

one,” his own allegations undermine his claim. That is, “the fact that the 

alleged disparate treatment occurred only once clearly negates any 

inference of a Village policy or custom.”... 

 Recalling that we must read plaintiff’s complaint liberally, we note 

that he alleges that his termination was the result of the decision of the 

village’s administrator, Bruce Bonebrake. This allegation allows the 

inference that plaintiff’s alleged deprivation was caused by a person with 

policymaking authority. Furthermore, defendant’s argument ignores 

Seventh Circuit precedent-recently affirmed by the Supreme Courtallowing for “class of one” equal protection claims. Olech v. Village of 

Willowbrook, 160 F.3d 386 (7th Cir. 1998) aff’d, 528 U.S. 1073, 120 

S.Ct. 1073, 145 L.Ed.2d 1060 (2000). 

Anderson v. Village of Oswego, 109 F.Supp.2d 930, 934-35 (N.D. Ill. 2000); See, also, 

Murphy v. County of McHenry, 2003 WL 1908045, *1 (N.D. Ill. 2003) (“[T]here are 

dozens of cases in every U.S. Court of Appeals... brought against municipalities 

involving “class of one” allegations without even so much as a whisper about Monell.”). 

 Grapski alleges that the City has repeatedly harassed and arrested him as part of a 

policy to censor and discredit his political activities. Logic dictates that the City would 

not harass and arrest every one of its citizens under this policy. Rather, it would arrest 

only those who are engaged in political activities with which it disagrees. The City’s 

policy has been applied most forcefully against Grapski because he is the foremost 

activist criticizing City policies and personnel. 

IV. DEFENDANT’S FOURTEENTH AMENDMENT ARGUMENTS ARE 

MISDIRECTED. 

 

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 Defendant’s arguments with respect to the due process clause of the Fourteenth 

Amendment are puzzling because Plaintiff does not raise any due process claims. (Doc. 

31 at 16-17). While Plaintiff asserted an Equal Protection claim under the Fourteenth 

Amendment, that count is not based on the due process clause. (Doc. 24 at 25-28 [Count 

III]). Plaintiff’s other references to the Fourteenth Amendment are merely a formalistic 

nod to the incorporation doctrine; the First Amendment applies to the states because it is 

subsumed within the Fourteenth Amendment concept of due process. 

V. DEFENDANT’S ARGUMENTS PERTAINING TO DECLARATORY 

RELIEF ARE MISDIRECTED. 

 Defendant argues that Plaintiff is not entitled to declaratory relief in Count II of 

the Complaint because he is barred from accessing City property under a state law order 

of community control.19 The City claims that there is no present dispute between the 

parties that would support prospective relief. Review of the ad damnum clause of Count 

II of the Amended Complaint [Doc. 24 at 24-24] shows that Plaintiff is only seeking 

damages for past violations of his constitutional rights and is not seeking prospective 

relief of any kind. In particular there is no demand for a declaratory judgment. 

VI. PLAINTIFF STATES A CAUSE OF ACTION FOR A “CLASS OF ONE” 

EQUAL PROTECTION CLAIM. 

 “Class of one claims” are cognizable under the Equal Protection Clause of the 

Fourteenth Amendment. See, Village of Willowbrook v. Olech, 528 U.S. 562, 120 S.Ct. 

1273 (2000); see also Allegheny Pittsburgh Coal Co. v. County Comm=n of Webster Cty., 

488 U.S. 336, 344 (1989). To state a claim for a violation of equal protection against a 

 

19 That particular restriction is an obvious prior restraint and is currently the subject of an 

ongoing appeal. See, Grapski v. State, (Fla. 1st DCA Case No.: 1D10-333). 

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“class of one,” a plaintiff must allege “that she has been intentionally treated differently 

from others similarly situated and that there is no rational basis for the difference in 

treatment.” Village of Willowbrook, 528 U.S. at 564, 120 S.Ct. at 1074; See, also, 

Campbell v. Rainbow City, 434 F.3d 1306, 1314 (11th Cir. 2006). The law in this area is 

particularly well developed in Florida. See Bay Area Remodelers, Inc. v. Manatee 

County, Fla., 2009 WL 151140, 2 (M.D. Fla. Jan. 21, 2009) (Upholding class one claim 

against motion to dismiss where allegations of disparate treatment were joined to claim 

that treatment was intentional); Cape Canaveral Shrimp Co., Inc. v. Canaveral Port 

Authority Bd. of Comm’ns, 2007 WL 2819659 (M.D. Fla. Sept. 25, 2007) (denying 

motion to dismiss where plaintiff=s complaint alleged Willowbrook standards for class of 

one cause of action); Pete’s Towing Co. v. City of Tampa, Florida, 2008 WL 4791821 

(M.D. Fla. 2008) (Plaintiff sufficiently alleged it was treated differently from similarly 

situated local towing services where it alleged “that the difference in treatment was 

intentional and was wholly irrational and arbitrary.”). 

 In this case, Plaintiff’s Amended Complaint includes the following specific 

allegations: 

 158. On information and belief, GRAPSKI alleges that no other 

citizens have been forcibly removed from an ALACHUA City 

Commission meeting in the manner in which GRAPSKI was removed, nor 

has any other citizen been arrested for disrupting a meeting of the City 

Commission. 

 159. On information and belief, GRAPSKI alleges that no other 

citizens have been issued a trespass notice barring them from the 

ALACHUA City Hall. (Doc. 24 at 26). 

The Defendant’s argument that Plaintiff has failed to identify “similarly situated citizens” 

is easily refuted. (Doc. 31 at 20). The essence of a class of one claim is that the plaintiff is 

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the only example of the selective enforcement; by definition no one else is targeted. 

 Plaintiff alleges that the City provides an opportunity for public speaking and 

access to government leaders that is available for all citizens except Mr. Grapski. (Doc. 

24 at ¶¶ 27, 29, 30, 59, 60, 73, 82, 103, 104, 106, 107). In essence, every citizen in 

Alachua is similarly situated to Plaintiff because every citizen in Alachua has the right to 

attend commission hearings and speak to the commissioners. Similarly, every citizen has 

the right to access public records and to complain to city officials. Plaintiff has been 

singled out not because of the manner in which he speaks, but because of the content of 

his speech and his political views. (Id.) 

 Plaintiff supplements those claims with specific allegations that the disparate 

treatment was intentional and part of a larger scheme to censor, punish and harass him: 

 163. The disparate treatment of the Plaintiff was motivated by 

an invidious purpose; to-wit: to deprive Plaintiff of his constitutional 

rights and liberties and state law freedoms through repeated arrests, 

harassment and public ridicule, all in an effort to dissuade him from 

pursuing public records requests, from seeking political reforms, from 

engaging in political activities and as punishment for having exercised 

those fundamental constitutional rights. 

 164. The disparate treatment of the Plaintiff was further 

motivated by Defendants’ desire to retaliate against Plaintiff for having 

sued the CITY and because Plaintiff actively defended against each of the 

false arrests and prosecutions undertaken by the CITY and the individual 

Defendants. (Doc. 24). 

Plaintiff even identifies a particular speaker who was treated differently on the very night 

that Plaintiff was forcibly removed from a commission meeting. (Doc. 24 at 16-17 

[identifying Robert Sharpe as a favored speaker]). 

 Defendant’s reliance on Engquist v. Oregon Department of Agriculture, 553 U.S. 

591, 128 S.Ct. 2146 (2008) is completely misplaced. Engquist was limited to an equal 

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protection claim in the context of public employment. Grapski is not employed by the 

City. The standards adopted by the Supreme Court in Village of Willowbrook apply with 

full force to private citizens who are not employed by the government. 

VII. DEFENDANT’S ARGUMENTS PERTAINING TO THE FLORIDA 

CONSTITUTION ARE MISDIRECTED.

 Plaintiff properly refers to the Florida Constitution in his Amended Complaint 

because the state Constitution mirrors the protections of the United States Constitution. 

See, generally, MacLean v. City of St. Petersburg, 194 F.Supp.2d 1290, 1303 (M.D. Fla. 

2002). In addition, the Florida Constitution specifically grants citizens the right to access 

public records – a right that is unique to the State and one of the bases for Plaintiff’s 

claim of access to public facilities. (Doc. 24 at 4-5, ¶¶21, 28). However, the claim for 

damages in each of those counts which asserts a constitutional violation (Counts I 

through V) is clearly limited to the violation of Plaintiff’s Federal constitutional rights. 

Plaintiff makes no attempt to recover damages under the Florida Constitution and the 

Amended Complaint cannot be reasonably read to imply any such demand.20

VI. PLAINTIFF STATES A CAUSE OF ACTION FOR NEGLIGENT 

TRAINING / NEGLIGENT SUPERVISION. 

 Plaintiff has brought several state law claims against the City for damages 

pursuant to §768.28(9) Fla.Stat. That statute provides in relevant part: 

(9)(a) No officer, employee, or agent of the state or of any of its 

subdivisions shall be held personally liable in tort or named as a party 

defendant in any action for any injury or damage suffered as a result of 

any act, event, or omission of action in the scope of her or his employment 

or function, unless such officer, employee, or agent acted in bad faith or 

 

20 Those counts of the Amended Complaint which are based on Florida law (Counts VI 

through XV) involve common law tort claims and do not rely on the Florida Constitution. 

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with malicious purpose or in a manner exhibiting wanton and willful 

disregard of human rights, safety, or property......The exclusive remedy for 

injury or damage suffered as a result of an act, event, or omission of an 

officer, employee, or agent of the state or any of its subdivisions or 

constitutional officers shall be by action against the governmental entity, 

or the head of such entity in her or his official capacity, or the 

constitutional officer of which the officer, employee, or agent is an 

employee, unless such act or omission was committed in bad faith or with 

malicious purpose or in a manner exhibiting wanton and willful disregard 

of human rights, safety, or property. 

§768.28(9) Fla.Stat. 

 The state law claims against the City do not seek to impose vicarious liability for 

intentional torts. (Doc. 24 at Counts VII, IX and XIII). In particular, Plaintiff does not 

claim that the City is responsible for the malicious or intentional acts of its employees. 

Rather, Plaintiff alleges that the City is responsible for its own negligence in failing to 

properly train and supervise its agents, officers and employees. Florida common law 

recognizes the tort of negligent supervision: 

Negligent supervision of an agent has long been recognized as a basis for 

tort liability in Florida. Storm v. Town of Ponce Inlet, 866 So.2d 713, 716 

(Fla. 5th DCA), review denied, 879 So.2d 624 (Fla. 2004). Florida courts 

have also recognized this tort in cases involving the state or one of its 

agencies as a defendant. Id. at 717. Negligent supervision occurs when 

during the course of employment, the employer becomes aware or should 

have become aware of problems with an employee that indicated his 

unfitness, and the employer fails to take further actions such as 

investigation, discharge, or reassignment. Garcia v. Duffy, 492 So.2d 435, 

438-39 (Fla. 2d DCA 1986). The plaintiff must allege facts sufficient to 

show that once an employer received actual or constructive notice of 

problems with an employee's fitness, it was unreasonable for the employer 

not to investigate or take corrective action. Id. at 441. 

Department of Environmental Protection v. Hardy, 907 So.2d 655, 660 (Fla. 5th DCA 

2005); See, also, Vaden v. Campbell, 2009 WL 1919474, *2 (N.D. Fla. 2009) (Denying 

motion to dismiss negligent supervision claim against a Sheriff); Wynn v. City of 

Lakeland, 2010 WL 2976905, *10 (M.D. Fla. 2010) (“As Taylor's employer, the City had 

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a duty to supervise him.”); Mosby v. Harrell, 909 So.2d 323 (Fla. 1st DCA 2005). 

 The Amended Complaint is not subject to dismissal for alleging that the City and 

its agents are both responsible for Plaintiff’s damages. The Complaint asserts different 

causes of action against the City (negligent training / supervision) as compared to the 

individuals (battery, false arrest and malicious prosecution). Florida courts and Federal 

courts have long acknowledged that plaintiffs may plead in the alternative, as Grapski has 

done. See, Johnson v. State Dept. of H.R.S., 695 So.2d 927, 931 (Fla. 2nd DCA 1997). 

 Defendant cannot raise a convincing defense based on sovereign immunity for 

discretionary functions. This claim has been considered and rejected by Florida Courts in 

the past. See, Mosby, 909 So.2d at 330 (“[S]overeign immunity does not uniformly 

preclude claims against the state and its subsidiaries for negligent training and 

supervision”); See, also, Vaden v. Campbell, 2009 WL 1919474 at *4 (Sovereign 

immunity did not protect Sheriff against claim that he failed to supervise employee). 

 Finally, Defendant’s argument that Plaintiff fails to allege sufficient facts to 

support its claim for negligent training / supervision is belied by the actual allegations of 

the Amended Complaint. Plaintiff has properly alleged a duty to “adequately train, 

instruct and supervise its employees”, a breach of that duty, the City’ notice of the breach 

and damages. (Doc. 24 at ¶¶ 253-260, 278, 281-290, 329, 333-342). Those allegations 

include all of the elements of the cause of action required by Florida law. See, 

Department of Environmental Protection v. Hardy, supra. 

 WHEREFORE, the Plaintiff prays that the City’s Motion to Dismiss be denied in 

its entirety. 

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Page 21 of 21 

 GARY S. EDINGER & ASSOCIATES, P.A 

 

 /s/ Gary S. Edinger 

JOSEPH W. LITTLE, Esquire GARY S. EDINGER, Esquire 

Florida Bar No. 196749 Florida Bar No.: 0606812 

3731 N.W. 13th Place 305 N.E. 1st Street 

Gainesville, Florida 32605 Gainesville, Florida 32601 

(352) 273-0660 (352) 338-4440/ 337-0696 (Fax) 

littlegnv@gmail.com GSEdinger@aol.com 

 

Attorneys for Plaintiff 

 I HEREBY CERTIFY that a true and correct copy of the foregoing Response has 

been furnished to JOSEPH R. FLOOD, JR., Esquire and JOSHUA B. WALKER, 

Esquire, Dean, Ringers, Morgan & Lawton, P.A., Post Office Box 2928, Orlando, Florida 

32802-2928; and to MICHAEL J. ROPER, Esquire and CHRISTOPHER R. FAY, 

Esquire, Bell & Roper, P.A., 2707 E. Jefferson Street, Orlando, Florida 32803, via the 

CM/ECF System this 22nd day of December, 2010. 

 /s/ Gary S. Edinger 

 GARY S. EDINGER, Esquire 

 Florida Bar No.: 0606812 

Case 1:10-cv-00140-MP-GRJ Document 39 Filed 12/22/10 Page 21 of 21