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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PANAMA CITY DIVISION

CHARLES L. STRINGER,

Plaintiff,

vs. Case No.: 5:11cv1/RS/EMT

JOHN DOE, et al.,

Defendants.

________________________________/

REPORT AND RECOMMENDATION

Plaintiff, a non-prisoner proceeding pro se, commenced this action by filing a civil complaint

under 42 U.S.C. §§ 1983, 1983, 1985 and 28 U.S.C. § 1343(a)(1) (Doc. 1). The court granted leave

to proceed in forma pauperis (Doc. 4). Presently before the court is Plaintiff’s Second Amended

Complaint (Doc. 20).

Because Plaintiff is proceeding in forma pauperis, the court may dismiss the case if satisfied

that the action is “(i) frivolous or malicious; (ii) fails to state a claim on which relief may be

granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.” 28

U.S.C. § 1915(e)(2)(B). A complaint is frivolous under section 1915(e) “where it lacks an arguable

basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325, 109 S. Ct. 1827, 1833, 104

L. Ed. 2d 338 (1989). Dismissals on this ground should only be ordered when the legal theories are

“indisputably meritless,” id., 490 U.S. at 327, or when the claims rely on factual allegations that are

“clearly baseless.” Denton v. Hernandez, 504 U.S. 25, 31, 112 S. Ct. 1728, 1733, 118 L. Ed. 2d 340

(1992). Dismissals for failure to state a claim are governed by the same standard as Federal Rule

of Civil Procedure 12(b)(6). Mitchell v. Farcass, 112 F.3d 1483, 1485 (11th Cir. 1997). The

allegations of the complaint are taken as true and are construed in the light most favorable to

Plaintiff. Davis v. Monroe County Bd. Of Educ., 120 F.3d 1390, 1393 (11th Cir. 1997). However,

such acceptance should not be given blindly; only well-pleaded factual allegations are taken as true

and only reasonable inferences are drawn in favor of the plaintiff. See Oladeinde v. City of

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Birmingham, 963 F.2d 1481, 1485 (11th Cir. 1992); Marrero v. City of Hialeah, 625 F.2d 499, 502

(5th Cir. 1980);1 see also Long v. Satz, 181 F.3d 1275, 1278 (11th Cir. 1999) (per curiam)

(“reasonable inferences” drawn); Associated Builders, Inc. v. Ala. Power Co., 505 F.2d 97, 100 (5th

Cir. 1974) (“unwarranted deductions of fact are not admitted as true”). A plaintiff must allege more

than mere “labels and conclusions”; the complaint must include “[f]actual allegations . . . [sufficient]

to raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127

S. Ct. 1955, 1964–65, 167 L. Ed. 2d 929 (2007) (citations and internal quotations omitted). Indeed,

“any conclusory allegations, unwarranted deductions of fact or legal conclusions masquerading as

facts do not prevent dismissal.” Weissman v. Nat’l Ass’n of Sec. Dealers, 500 F.3d 1293, 1305

(11th Cir. 2007) (en banc) (Tjoflat, J., dissenting) (citing Associated Builders, Inc., 505 F.2d at 99). 

The complaint may be dismissed if the facts as pleaded do not state a claim to relief that is plausible

on its face. See Bell Atl. Corp., supra (retiring the often-criticized “no set of facts” language

previously used to describe the motion to dismiss standard and determining that because plaintiffs

had “not nudged their claims across the line from conceivable to plausible, their complaint must be

dismissed” for failure to state a claim). Upon review of the complaint, the court concludes that

dismissal of this action is warranted.

I. RELEVANT ALLEGATIONS

Plaintiff names six Defendants in this action: John Doe, father of “Smoking hot body”;

Shane Schiller, Manager of Vortex Diving Center; John Doe, owner of Vortex Diving Center; Tim

Brown, Sheriff of Holmes County, Florida; Stacy Paul, Deputy Sheriff; and Jeremy French, Deputy

Sheriff (Doc. 20 at 1–3).2

 Plaintiff alleges that on June 24, 2010, he and his son drove to Vortex

Springs and paid Vortex Diving Center $225.45 to rent a campsite and dive gear from June 24–27

(id. at 7). Plaintiff states that on the afternoon of June 26, as he was walking to the water to dive,

a girl stepped in front of him (id. at 7–8). Plaintiff told the girl she had a “smoking hot body” (id.

at 8). The girl smiled and then somewhat obstructed Plaintiff’s access to the water (id.). Plaintiff

initiated conversation, and when the girl opened her mouth, Plaintiff saw that she had braces on her

1

 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the Eleventh Circuit adopted

as precedent all of the decisions of the former Fifth Circuit decided prior to October 1, 1981.

2

 The page references used in this Report reflect the page numbers as enumerated in the court’s electronic

docketing system rather than those Plaintiff may have assigned.

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teeth (id.). Plaintiff remarked, “You know that with those braces on, no one is going to want to kiss

you or ask you out on a date, you messed up!” (id.). The girl left, and Defendant Paul approached

Plaintiff and asked if he (Plaintiff) told the girl she has a smoking hot body (id.). Plaintiff responded

yes, and Defendant Paul told him that his comment constituted sexual harassment (id.). Plaintiff

responded, “When did I push a woman up against a wall and tell her I would not let her go until she

has sex with me? . . . If you think I was sexual [sic] harassing someone, you need to call a

policeman” (id.).

When Plaintiff finished his dive, Defendant Paul told him he needed to go to the dive shop

because the girl’s father wanted to talk to him (id. at 9). Plaintiff arrived at the dive shop, and

Defendant Paul and the girl’s father, Defendant John Doe, began yelling and cursing at him for

sexually harassing the fifteen-year-old girl (id.). Defendant Paul and the girl’s father then threatened

to beat up Plaintiff (id.). Defendant Schiller, the manager of the dive shop, told Plaintiff he too

would beat him up if he sexually harassed his daughter (id.). Plaintiff argued with Defendants,

denying that his conduct constituted sexual harassment (at one point, Plaintiff supported his

argument with the fact that he impregnated his son’s mother when she was only fifteen) (id.). 

Plaintiff then demanded that Defendants Schiller, Paul, the girl’s father, and the girl provide their

names and verify the girl’s age (id.). He also demanded that someone call law enforcement because

he wanted to sue them for their behavior (id.). Eventually, Defendants Schiller, Paul, and the girl’s

father demanded that Plaintiff leave, but Plaintiff refused until he received a refund of the funds he

had paid for renting the campsite that evening (approximately $100.00) (id. at 9, 12). Defendant

Schiller told Plaintiff he could stay if he apologized to the girl, but Plaintiff refused and again

demanded a refund (id. at 10). At some point during this argument, Defendant Paul apparently

stated he was a deputy sheriff (see id. at 9–10).

Plaintiff and his son returned to their campsite to pack their gear (id. at 10). While they

packed, Defendant Paul “stood over” them with a canister of mace, and a crowd of people looked

on (id.). Defendant Paul also told two teenaged girls, who Plaintiff and his son apparently invited

to their campsite, to leave the campsite (id.). Plaintiff demanded proof that Defendant Paul was a

deputy, and Plaintiff and Defendant Paul went back to the dive shop (id.). Defendant Paul

momentarily left and then returned with a deputy’s photo identification (id.). Plaintiff asserts the

picture did not resemble Defendant Paul, and Paul refused to allow Plaintiff to hold the identification

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card to more closely examine it (id. at 10–11). Plaintiff and Defendant Paul then returned to

Plaintiff’s campsite, and Paul watched Plaintiff pack his belongings “in violation of [Plaintiff’s]

rights to see a search warrant” (id. at 11). Plaintiff packed his car and drove to the dive shop, where

he again demanded a refund (id.). Defendant Schiller denied his request (id.). Plaintiff told a female

employee of the dive shop to call the police (id.). Defendant Paul told Plaintiff to leave, so Plaintiff

and his son drove down the road (id.). Plaintiff saw a Sheriff’s Department vehicle at the end of the

road and stopped (id.). Plaintiff asked the deputy, Defendant Deputy French, to accompany him to

the dive shop to obtain a refund, and they both drove to the dive shop (id.). Deputy French

instructed Plaintiff to stay outside the shop, or he would arrest him (id.). Deputy French went into

the dive shop and returned with Defendants Schiller and Paul (id.). Defendant Paul falsely accused

Plaintiff of attempting to take the photo identification from him (id. at 11–12). Defendant Schiller

refused to refund Plaintiff’s money and requested that Deputy French issue Plaintiff a trespass

warning, a copy of which Plaintiff attached to his original complaint (id. at 12; see also Doc. 1, Ex.

A). 

Plaintiff and his son left the premises and drove to a store (id. at 12). Plaintiff called the

Sheriff’s Department and stated he wanted a copy of any report that was written about the incident

(id.). Plaintiff states Defendant Sheriff Brown assured him he would require Deputy French to write

an incident report, and that he would investigate Plaintiff’s claim that Defendants Schiller and Paul

lied to Deputy French (id.). Plaintiff received a copy of the incident report three days later (id. at

12–13). Plaintiff states Defendant Schiller and Defendant Paul lied in the report by stating (1) they

did not know the identities of the girl and her father, (2) Plaintiff told the girl she had a “smoking

hot body” after she told him she was fifteen, and (3) Plaintiff attempted to take the photo

identification from Paul (id.). Plaintiff states he asked Sheriff Brown to investigate the false

statements in the incident report, but Brown refused (id.).

Plaintiff claims that Defendants knowingly violated his rights under the First, Fourth, Fifth,

Sixth, Eighth, and Fourteenth Amendments by falsely claiming that Plaintiff sexually harassed a

fifteen-year-old girl (id. at 15). He additionally claims Sheriff Brown and Defendant John Doe (the

owner of Vortex Diving Center) were grossly negligent in supervising and training their employees

to prevent them from engaging in libel, slander, fraud, wire fraud, and breach of contract (id.). As

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relief, he seeks compensatory damages in the amount of $500,000.00 and punitive damages in the

amount of $500,000.00 from each Defendant (id.).

II. ANALYSIS

The undersigned first addresses Plaintiff’s providing false answers to questions on the

complaint form. Section IV of the complaint form provides an area for Plaintiff to disclose

information regarding prior civil cases he filed in state and federal court (see Doc. 1 at 4–5).3

Question D of Section IV asks, “Have you ever had any action in federal court dismissed as

frivolous, malicious, failing to state a claim, or prior to service? If so, identify each and every case

so dismissed” (id.). Where there is a parenthetical area to mark either a “yes” or “no” answer to this

question, Plaintiff marked “no.” Plaintiff thus stated that he has not ever had any action in federal

court dismissed as frivolous, malicious, failing to state a claim, or prior to service. At the end of

the civil rights complaint form, Plaintiff signed his name after the following statement on the form:

“I DECLARE UNDER PENALTY OF PERJURY THAT THE FOREGOING STATEMENTS

OF FACT, INCLUDING ALL CONTINUATION PAGES, ARE TRUE AND CORRECT.”

(id. at 17). 

 As routinely recognized by this court, the information from Section IV of the form is useful

to the court in many ways. It allows consideration of whether the action is related to, or otherwise

should be considered in conjunction with or by the same judge who presided over, another action;

and it allows consideration of whether any ruling in the other action affects the current case. These

factors are appropriately considered in connection with the preliminary review of a complaint under

28 U.S.C. § 1915(e)(2)(B). Further, the information helps the court determine the plaintiff’s

litigation experience and familiarity with the legal terrain of the current action.

In this case, the court takes judicial notice of the public dockets of cases filed by Plaintiff in

other federal courts. See Fed. R. Evid. 201; see also United States v. Berrojo, 628 F.3d 368 (5th Cir.

1980) (“The doctrine of judicial notice permits a judge to consider a generally accepted or readily

3

 When Plaintiff commenced this case, he did not file his complaint on the court-approved form, as required

by Rule 5.1(J)(2) of the Local Rules for the Northern District of Florida (see Doc. 1). Therefore, the undersigned issued

an order directing him to file his complaint on the complaint form approved for use by non-prisoners (see Doc. 5). Upon

review of Plaintiff’s amended complaint (Doc. 5), the undersigned noted several deficiencies concerning the form and

substance of the complaint and, therefore, directed Plaintiff to file a second amended complaint on the complaint form

approved for use by non-prisoners (see Doc. 7). The clerk apparently sent Plaintiff the complaint form for use by

prisoners; nevertheless, Plaintiff completed and filed his second amended complaint on that form (Doc. 20).

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verified fact as proved without requiring evidence to establish it.”); see also, e.g., FernandezMorales v. Barron, No. 5:06cv1/MCR/EMT, 2006 WL 680819, at *2 (N.D. Fla. Mar. 13, 2006)

(unpublished) (district court may take judicial notice of public docket of case in other federal

judicial district). According to those dockets, as of the date Plaintiff filed his complaint in the

instant case, January 3, 2011 (see Doc. 1), he had previously filed at least twenty cases in federal

district courts.4 Three of those cases were dismissed as frivolous or malicious. Stringer v. Funchess,

et al., No. 3:06cv223-HTW, 2007 WL 1965431 (S.D. Miss. June 29, 2007); Stringer v. Barnett, et

al., No. 3:06cv663-HTW (S.D. Miss. Feb. 2, 2007); Stringer v. Clark, et al., No. 4:93cv103-NBB

(N.D. Miss. Mar. 10, 1997). Indeed, Stringer v. Clark was dismissed as both frivolous and malicious

when Plaintiff, on the day of trial, told the court he was leaving and did not intend to prosecute his

case after the court denied his motion for continuance based upon his sprained ankle. Stringer v.

Clark, et al., No. 4:93cv103-NBB (N.D. Miss. Mar. 10, 1997).

4

 Plaintiff filed fifteen § 1983 cases, six of which he filed while he was a prisoner. One of the § 1983 cases was

closed four years after it was filed based upon a psychiatric report from a court-ordered expert stating that Plaintiff was

not competent to proceed with prosecution of the case. Stringer v. Hoskins, et al., No. 4:93cv149-LTS (N.D. Miss. Aug.

15, 1997). Another case resulted in a jury verdict for the defendants. Stringer v. Clark, et al., Case No. 4:93cv80-GHD

(N.D. Miss. Mar. 29, 1996). Eight cases were resolved in favor of the defendants upon their filing dispositive motions. 

Stringer v. McAdory, et al., No. 3:91cv745-WHB (S.D. Miss. Apr. 20, 19993); Stringer v. Brown, et al., No. 3:92cv617-

HTW (S.D. Miss. Mar. 31, 1993); Stringer v. McMillin, et al., No. 3:95cv171-DCB (S.D. Miss. Nov. 27, 1995); Stringer

v. McDaniels, et al., No. 3:99cv686-HTW (S.D. Miss. Sept. 28, 2001); Stringer v. Herbert, No. 3:01cv513-WHB (S.D.

Miss. Aug. 29, 2002); Stringer v. Alben, et al., No. 3:01cv820-WHB (S.D. Miss. Mar. 14, 2003); Stringer v. Daniels,

et al., No. 3:03cv1297-WHB (S.D. Miss. Mar. 25, 2005); Stringer v. Woolsey, et al., No. 2:10cv48-KJD (D. Nev. Jan.

25, 2011). Plaintiff voluntarily dismissed two cases. Stringer v. McMillin, et al., No. 3:95cv66-HTW (S.D. Miss. Sept.

19, 1995); Stringer v. Fortner, No. 3:95cv757-WHB (S.D. Miss. Mar. 22, 1996).

Plaintiff additionally previously filed three habeas cases in the federal district courts, all of which were denied. 

Stringer v. Hargett, No. 3:92cv355-TSL (S.D. Miss. Sept. 1, 1992); Stringer v. Hargett, No. 3:92cv407-TSL (S.D. Miss.

Sept. 10, 1992); Stringer v. McMillin, No. 3:95cv102-HTW (S.D. Miss. Aug. 12, 1996). He also filed two complaints

seeking review of federal administrative decisions, both of which were denied. Stringer v. Comm. of Social Security,

No. 3:04cv975-HTW (S.D. Miss. May 31, 2006); Stringer v. Astrue, No. 3:08cv730-HTW (S.D. Miss. Mar. 30, 2010).

The plaintiff’s name in each case was Charles L. Stringer or Charles Lavel Stringer, which is Plaintiff’s name

(see Doc. 1 at 17, Ex. A). The plaintiff’s address of record in each case was 136 Kimbrough Drive, Jackson, Mississippi,

39204, which is Plaintiff’s address (see id.). Also, in the previous cases where the plaintiff’s telephone number appears

on the docket (six cases filed in the Southern District of Mississippi and one case filed in the Northern District of

Mississippi), the telephone number, (601) 373-3656, is the same as Plaintiff’s (see id.).

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Additionally, Plaintiff previously filed fifteen cases in the United States Court of Appeals

for the Fifth Circuit.5 Four of those cases were dismissed as frivolous or for lack of jurisdiction. 

Stringer v. Barnett, No. 08-60259, 303 Fed. Appx. 244 (5th Cir. 2008); Stringer v. Hoskins, No. 94-

60437, 48 F.3d 530 (5th Cir. 1995); Stringer v. McMillin, 20 F.3d 466 (5th Cir. 1994); Stringer v.

Clark, No. 96-60349, 120 F.3d 265 (5th Cir. 1997) (Table). In Stringer v. Barnett, the Fifth Circuit

warned Plaintiff that future filings of repetitious or frivolous appeals may result in the imposition

of sanctions, including dismissal, monetary sanctions, and restrictions on his ability to file papers

in that court and any court subject to the Fifth Circuit’s jurisdiction. 303 Fed. Appx. 244.

Plaintiff also previously filed at least six petitions for certiorari review in the United States

Supreme Court. Stringer v. McMillin, No. 93-9740, 513 U.S. 863, 115 S. Ct. 177, 130 L. Ed. 2d 113

(Oct. 3, 1994); Stringer v. McDaniels, No. 02-10560, 540 U.S. 831, 124 S. Ct. 71, 157 L. Ed. 2d 57

(Oct. 6, 2003); Stringer v. Herbert, No. 03-7345, 540 U.S. 1124, 124 S. Ct. 1088, 157 L. Ed. 2d

(Jan. 12, 2004); Stringer v. Alben, No. 03-10837, 543 U.S. 853, 125 S. Ct. 298, 60 L. Ed. 2d 87

(Oct. 4, 2004); Stringer v. Daniels, No. 06-5790, 549 U.S. 961, 127 S. Ct. 399, 166 L. Ed. 2d 283

(Oct. 10, 2006); Stringer v. Lowe, No. 06-11720, 552 U.S. 860, 128 S. Ct. 143, 169 L. Ed. 2d 98

(Oct. 1, 2007). The Court denied review in all of those cases. The Supreme Court finally sanctioned

Plaintiff for repeatedly abusing the Court’s process by directing the Clerk not to accept any further

petitions in noncriminal matters from Plaintiff unless he paid the docketing fee and submitted his

petition in compliance with Rule 33.1 of the Rules of the Supreme Court. Stringer v. Astrue, No.

07-8461, 552 U.S. 1228, 128 S. Ct. 1451, 170 L. Ed. 2d 272 (Feb. 25, 2008). While the petitions

filed in the Supreme Court may not qualify as federal actions that were dismissed as frivolous,

malicious, failing to state a claim, or prior to service, the undersigned mentions them to show

Plaintiff’s history as an abusive litigant.

5

 The appellate court dismissed one case, Stringer v. McMillin, Case No. 95-60015, for lack of prosecution. 

The court affirmed the decision of the district court in ten other cases. Stringer v. Funchess, No. 08-60265, 291 Fed.

Appx. 617, 618–20 (5th Cir. 2008); Stringer v. Astrue, No. 07-60151, 252 Fed. Appx. 645, 646–50 (5th Cir. 2007);

Stringer v. May, No. 06-60518, 212 Fed. Appx. 375, 376 (5th Cir. 2007); Stringer v. Daniels, 182 Fed. Appx. 350 (5th

Cir. 2006); Stringer v. Alben, No. 03-60425, 89 Fed. Appx. 449, 450–53 (5th Cir. 2004); Stringer v. Herbert, No. 02-

60897, 71 Fed. Appx. 341, 342 (5th Cir. 2003); Stringer v. McDaniels, No. 02-60332, 64 Fed. Appx. 416 (5th Cir. 2003);

Stringer v. McDaniels, No. 00-60527, 252 F.3d 436 (5th Cir. 2001); Stringer v. Campbell, No. 93-7650, 30 F.3d 1492

(5th Cir. 1994); Stringer v. McAdory, No. 93-7530, 42 F.3d 642 (5th Cir. 1994) (Table).

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The court has authority to control and manage matters such as this pending before it, and

Plaintiff’s pro se status does not excuse him from conforming to acceptable standards in approaching

the court. Although the clerk may have erroneously sent him the complaint form for use by

prisoners instead of non-prisoners (the form for non-prisoners does not require disclosure of prior

actions), Plaintiff did not obtain the correct form from the clerk or the court’s website, nor did he

simply leave Section IV blank and indicate that it did not apply to him. Instead, he completed,

signed, and filed the form, and he knew, or from reading the complaint form should have known,

that dismissal of the action may result from his untruthful answers to questions on the form.6

 If the

court cannot rely on the statements or responses made by the parties, the quality of justice is

threatened. The court will not tolerate false responses or statements in any pleading or motion filed

before it. Here, Plaintiff falsely responded to a question on the complaint form, as detailed above. 

If Plaintiff suffered no penalty for his untruthful responses, there would be little or no disincentive

for his attempt to evade or undermine the purposes for which candor with the court is required. 

Therefore, this court should not allow Plaintiff’s false responses to go unpunished.

The court recommends that an appropriate sanction for Plaintiff’s abuse of the judicial

process in not providing the court with true factual statements or responses is to dismiss this cause

without prejudice.

7

 See, e.g., Finfrock v. State of Florida, 2009 WL 3429789, at *2 (M.D. Fla. Oct.

21, 2009) (§ 1983 action filed by non-prisoner subject to dismissal without prejudice for abuse of

judicial process where plaintiff stated in complaint there were no other lawsuits in any court at that

time concerning same facts and issues involved in instant action, plaintiff signed complaint under

penalty of perjury, and court took judicial notice that plaintiff filed nearly identical lawsuit on same

date in same court). Plaintiff is also warned that such false responses or statements, filed herein or

filed in the future, will not be ignored and may result in more severe and long-term sanctions. See

Warren v. Guelker, 29 F.3d 1386, 1389 (9th Cir. 1994) (per curiam) (pro se, in forma pauperis

prisoner’s misrepresentation about previous lawsuits may violate Rule 11).

6

 Indeed, section IV of the complaint form includes the following notice: “FAILURE TO DISCLOSE ALL

PRIOR CIVIL CASES MAY RESULT IN THE DISMISSAL OF THIS CASE. IF YOU ARE UNSURE OF ANY

PRIOR CASES YOU HAVE FILED, THAT FACT MUST BE DISCLOSED AS WELL.” (see Doc. 20 at 4) (emphasis

and capitalization in original).

7

 Dismissal without prejudice is not too severe a sanction under these circumstances. Plaintiff is free to re-file

this matter if he so chooses. See Order of Dismissal, Spires, No. 3:00cv249-RH (N.D. Fla. Oct. 27, 2000).

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Nevertheless, turning to the merits of Plaintiff’s claims, this action is subject to dismissal

because it is frivolous and otherwise fails to state a claim upon which relief may be granted. It is

well recognized that in any § 1983 action, the initial inquiry must focus on whether two essential

elements are present:

1. whether the conduct complained of was committed by a person acting under color

of state law; and

2. whether this conduct deprived a person of rights, privileges, or immunities

secured by the Constitution or laws of the United States.

Parratt v. Taylor, 451 U.S. 527, 535, 101 S. Ct. 1908, 1912, 68 L. Ed. 2d 420, 428 (1981), overruled

on other grounds, Daniels v. Williams, 474 U.S. 327, 106 S. Ct. 662, 88 L. Ed. 2d 662 (1986); 

Focus on the Family v. Pinellas Suncoast Transit Auth., 344 F.3d 1263, 1276–77 (11th Cir. 2003). 

Further, in order for liability under § 1983 to be imposed, the plaintiff must establish proof of an

affirmative causal connection between a defendant acting under color of state law and the

constitutional deprivation alleged. Troupe v. Sarasota County, 419 F.3d 1160, 1165 (11th Cir.

2005). 

A private party does not normally act under color of state law and is therefore not subject

to suit under § 1983. See Dennis v. Sparks, 449 U.S. 24, 27–29, 101 S. Ct. 183, 186, 66 L. Ed. 2d

185 (1980); Adickes v. S.H. Kress & Co., 398 U.S. 144, 152, 90 S. Ct. 1598, 1605, 26 L. Ed. 2d 142

(1970); Focus on the Family, 344 F.3d at 1277. The Eleventh Circuit recognizes three tests for

establishing whether the actions of a private entity are properly attributed to the state: the public

function test, the state compulsion test, and the nexus/joint action test. See Focus on the Family, 344

F.3d at 1277. The public function test is satisfied when private actors perform a function that is

“traditionally the exclusive prerogative of the state.” Id. (citation and quotation omitted). The state

compulsion test is met when the government has coerced or at least significantly encouraged the acts

alleged to be unconstitutional. Id. The nexus/joint action test is met when the state and the private

party are in such a position of interdependence that the alleged conduct constitutes a joint action. 

Id.

In the instant case, the facts do not suggest that either John Doe Defendant (the young lady’s

father or the owner of Vortex Diving Center) was acting under color of state law. Furthermore, the

mere fact that Defendant Paul was an off-duty deputy does not transform his actions into

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government action. See Chapman v Higbee Co., 319 F.3d 825, 833–34 (6th Cir. 2003); Wade v.

Byles, 83 F.3d 902, 905 (7th Cir. 1996); Gallagher v. Neil Young Freedom Concert, 49 F.3d 1442,

1457 (10th Cir. 1995); White v. Scrivner Corp., 594 F.2d 140, 142–43 (5th Cir. 1979). Moreover,

Plaintiff has failed to allege facts showing a sufficiently close nexus between Holmes County and

the conduct of any private party Defendant, such that the Defendant’s conduct may be fairly

attributed to the municipality itself. Therefore, Plaintiff’s claims against Defendants Paul, Schiller,

and the John Doe Defendants should be dismissed. 

Assuming for argument’s sake that Defendant Paul was a state actor, Paul’s watching

Plaintiff while he packed his belongings did not constitute a search or seizure for Fourth Amendment

purposes. Additionally, Plaintiff’s allegations fail to state a due process violation. Although

Plaintiff argues he was deprived of his property (the $100.00 rental fee for the campsite), the

deprivation was not committed by Defendant Paul. Defendants John Doe (the owner of the diving

center) and Schiller (the manager) refused to refund Plaintiff’s money. Further, Plaintiff does not

allege facts showing he was deprived of his liberty. To the extent he suggests he had a liberty or

property interest in his reputation, courts have held that injury to reputation, even if defamatory,

does not constitute deprivation of a constitutional protected liberty interest absent a showing of loss

of some tangible interest due to publication of a stigmatizing allegation. See Paul v. Davis, 424 U.S.

693, 711–12, 96 S. Ct. 1155, 47 L. Ed. 2d 405 (1976); Doe v. Florida Bar, 630 F.3d 1336, 1344

(11th Cir. 2011) (citation omitted). 

Plaintiff’s allegations also fail to state a claim against the state actor Defendants, Sheriff

Brown and Deputy French. Plaintiff appears to contend Deputy French failed to properly investigate

the incident before filing his report, and Sheriff Brown failed to conduct an internal investigation

of alleged misconduct by the deputies. However, a private citizen has no substantive due process

right to a law enforcement investigation or an internal investigation by the Sheriff’s Department. 

See Vinyard v. Wilson, 311 F.3d 1340, 1356 (11th Cir. 2002) (arrestee had no constitutional right

to internal investigation of excessive force claim); see also Flores v. Satz, 173 F.3d 1275, (failure

to properly investigate does not violate constitutional rights). 

Plaintiff has also failed to state a claim of failure to train or supervise against Sheriff Brown. 

“Although the Supreme Court has held that counties (and other local government entities) are

‘persons’ within the scope of § 1983, and subject to liability, [a plaintiff’] cannot rely upon the

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theory of respondeat superior to hold [a government officer acting in his official capacity] liable.” 

McDowell v. Brown, 392 F.3d 1283, 1289 (11th Cir. 2004) (citing Monell v. Dep’t of Soc. Servs.

of City of New York, 436 U.S. 658, 690, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978)). “‘It is only

when the ‘execution of the government’s policy or custom inflicts the injury’ that the municipality

may be held liable.’” Id. (citing City of Canton v. Harris, 489 U.S. 378, 385, 109 S. Ct. 1197, 103

L. 412 (1989)). “A [county] does not incur § 1983 liability for injuries caused solely by its

employees.” Id. (citing Monell, 436 U.S. at 694). “Nor does the fact that a plaintiff has suffered a

deprivation of federal rights at the hands of a municipal employee infer municipal culpability.” Id.

(citing Bd. of County Com'rs v. Brown, 520 U.S. 397, 403, 117 S. Ct. 1382, 137 L. Ed. 2d 626

(1997)). “Instead, to impose § 1983 liability on a municipality, 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.” Id. (citing Canton, 489 U.S. at 388). In the instant case, Plaintiff has failed to state a

constitutional claim against any non-supervisory state actor; therefore, he cannot state a claim

against Sheriff Brown.

Finally, Plaintiff has failed to allege facts showing a violation of any other constitutional

provision he cites (namely, the First, Sixth, and Eighth Amendments). Therefore, these claims are

likewise subject to dismissal.

Based upon the foregoing, it is respectfully RECOMMENDED:

1. That this action be DISMISSED without prejudice for the reasons set forth herein,

pursuant to 28 U.S.C. § 1915(e)(2)(B)(i), (ii).

2. That the clerk be directed to enter judgment accordingly and close the file.

At Pensacola, Florida, this 16th day of June 2011.

/s/ Elizabeth M. Timothy 

ELIZABETH M. TIMOTHY

UNITED STATES MAGISTRATE JUDGE

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NOTICE TO THE PARTIES

Objections to these proposed findings and recommendations may be filed within

fourteen (14) days after being served a copy thereof. Any different deadline that may appear

on the electronic docket is for the court’s internal use only. A copy of objections shall be

served upon the magistrate judge and all other parties. Failure to object may limit the scope

of appellate review of factual findings. See 28 U.S.C. § 636; United States v. Roberts, 858 F.2d

698, 701 (11th Cir. 1988).

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