Frank v. Fine

            UNITED STATES DISTRICT COURT                             
             MIDDLE DISTRICT OF FLORIDA                              
                  ORLANDO DIVISION                                   


COLBY ALEXANDER FRANK,                                                    

Plaintiff,                                                           

v.                                     Case No: 6:23-cv-2043-JSS-RMN      

RANDALL ADAM FINE,                                                        

Defendant.                                                           
___________________________________/                                      
                        ORDER                                        
On January 16, 2024, Plaintiff, proceeding pro se, filed a Second Amended 
Complaint (Dkt. 25)1 and a renewed Motion to Proceed In Forma Pauperis (Dkt. 26).  
Plaintiff thereafter filed a motion for leave to amend the Second Amended Complaint 
with additional facts in support of his claims.  (Dkt. 29.)  On February 16, 2024, 
Magistrate Judge Robert Norway entered two reports and recommendations regarding 
the pending motions.  (Dkts. 31, 32.)  Plaintiff filed timely objections to both reports.  
(Dkt.  34.)    Upon  consideration,  Plaintiff’s  objections  are  overruled  in  part  and 
Plaintiff’s Second Amended Complaint is dismissed without prejudice.      
                    BACKGROUND                                       
Plaintiff filed his initial complaint in this matter on October 21, 2023 and moved 
to proceed in forma pauperis.  (Dkts. 1, 2.)  On November 20, 2023, the court adopted 

1 Plaintiff incorrectly labels this pleading his “Third Amended Complaint.” 
the Magistrate Judge’s report and recommendation and dismissed Plaintiff’s initial 
complaint as an impermissible shotgun pleading.  (Dkts. 5, 7.)  Plaintiff then filed a 
first amended complaint on December 8, 2023, but did not renew his request to 

proceed in forma pauperis.  (Dkt. 19.)  On sua sponte review, the Magistrate Judge 
issued a report and recommendation recommending dismissal of the first amended 
complaint for failure to state a claim upon which relief may be granted, including that 
Plaintiff failed to state a claim for First Amendment retaliation under 42 U.S.C. § 1983.  
(Dkt. 23.)  Plaintiff thereafter filed the Second Amended Complaint and moved to 

proceed in forma pauperis.  (Dkts. 25, 26.)  The court adopted the Magistrate Judge’s 
report and recommendation, dismissed the amended complaint without prejudice, and 
accepted the Second Amended Complaint as the operative complaint in this matter.  
(Dkt. 28.)  After filing the Second Amended Complaint, Plaintiff moved for leave to 
amend to include additional facts such as an Anti-Defamation League Center on 

Extremism alert regarding Plaintiff and an additional social media post from Fine.  
(Dkt. 29.)                                                                
In the Second Amended Complaint, Plaintiff alleges that since approximately 
2020, he has engaged in a “widely publicized campaign of literature distribution” in 
association with a group of which he is a member.  (Dkt. 25 ¶ 13.)  Plaintiff describes 

the literature that he distributes as “a fair and honest critique of Jewish participation 
and influence in American public life.”  (Id. ¶ 15.)  Defendant Fine is a Member of the 
Florida House of Representatives, who, according to Plaintiff, “caused substantial and 
irreversible harm to Plaintiff and his reputation” and is engaged in a “conspiracy to 
substantially deprive Plaintiff of his Constitutional rights.”  (Id. ¶ 72.)  Specifically, 
Plaintiff alleges that Fine has publicly described Plaintiff as a Nazi and his activities as 

hate speech.  (Id. ¶¶ 50–64.)  Plaintiff also alleges that Fine was “a driving force behind 
the persecution of political and religious literature being classified as litter” through 
Fine’s work in passing Florida House Bill 269, under which Plaintiff was arrested in 
May 2023.  (Id. ¶ 66.)  Plaintiff asserts five counts against Defendant Fine, including 

state law claims for defamation, intentional infliction of emotional distress, false 
imprisonment, and invasion of privacy, and one count pursuant to 42 U.S.C. § 1983 
for First Amendment retaliation.  (Id. ¶¶ 50–70.)                         
On  February  16,  2024,  the  Magistrate  Judge  issued  a  report  and 
recommendation recommending that Plaintiff’s claims be dismissed without leave to 

amend.  (Dkt. 31.)  The Magistrate Judge found that Plaintiff’s Second Amended 
Complaint  constituted  an  impermissible  shotgun  pleading,  asserted  no  factual 
allegations  against  the  99  Doe  Defendants,  and  failed  to  state  a  claim  for  First 
Amendment retaliation such that the court lacks subject matter jurisdiction over this 
matter.  (Id.)  The Magistrate Judge noted that Plaintiff has had three opportunities to 

adequately plead a federal claim but has failed to do so, and therefore recommended 
that the action be dismissed with prejudice.  (Id. at 10–11.)  The Magistrate Judge also 
issued a separate report and recommendation recommending that Plaintiff’s motion 
for leave to amend (Dkt. 29) be denied.  (Dkt. 32.)  Plaintiff filed timely objections to 
both reports and recommendations.  (Dkt. 34.)                             
               APPLICABLE STANDARDS                                  

After  conducting  a  careful  and  complete  review  of  the  findings  and 
recommendations, a district judge “may accept, reject, or modify, in whole or in part, 
the  findings  or  recommendations  made  by  the  magistrate  judge.”    28  U.S.C.  § 
636(b)(1); see also Fed. R. Civ. P. 72.  A party must serve and file written objections to 

such proposed findings and recommendations within 14 days of being served with a 
copy of the report and recommendation and the failure to timely object “waives the 
right to challenge on appeal the district court’s order based on unobjected-to factual 
and legal conclusions[.]”  28 U.S.C. § 636(b)(1)(C); 11th Cir. R. 3-1.  With respect to 
non-dispositive matters, the district judge “must consider timely objections and modify 

or set aside any part of the order that is clearly erroneous or is contrary to law.”  Fed. 
R. Civ. P. 72(a); see Jordan v. Comm’r, Miss. Dep’t of Corr., 947 F.3d 1322, 1327 (11th 
Cir. 2020).  For dispositive matters, the district judge must conduct a de novo review 
of any portion of the report and recommendation to which a timely objection is 
made.  28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3); United States v. Farias-Gonzalez, 

556  F.3d  1181,  1184  n.1  (11th  Cir.  2009)  (“A  district  court  makes  a  de  novo 
determination  of  those  portions  of  a  magistrate’s  report  to  which  objections  are 
filed.”).  Even in the absence of a specific objection, the district judge reviews any legal 
conclusions de novo.  See Cooper-Houston v. S. Ry. Co., 37 F.3d 603, 604 (11th Cir. 
1994); Ashworth v. Glades Cnty. Bd. of Cnty. Comm’rs, 379 F. Supp. 3d 1244, 1246 (M.D. 
Fla. 2019).                                                               

                      ANALYSIS                                       
Plaintiff filed 23 pages of objections to the Magistrate Judge’s reports and 
recommendations.    (Dkt.  34.)2    Upon  consideration,  Plaintiff’s  objections  are 
overruled in part.                                                        
  A. Failure to State a First Amendment Retaliation Claim and Lack of 
     Subject Matter Jurisdiction                                     
The Magistrate Judge found that Plaintiff failed to state a claim in Count Five 
for First Amendment retaliation under § 1983.  (Dkt. 31 at 6–8.)  Specifically, the 
Magistrate  Judge  found  that  to  the  extent  Plaintiff  alleges  that  Defendant  Fine 

retaliated against him by supporting the bill under which Plaintiff was arrested, “[s]uch 
non-defamatory statements by a state legislator in support of legislation constitute 
protected speech, especially where Plaintiff does not allege such statements with 
particularity, the context of each statement, or even allege facts suggesting that the 
statements amount to ‘a threat, coercion, or intimidation intimating that punishment, 

sanctions, or adverse action will imminently follow.’”  (Id. at 10 (quoting Echols v. 
Lawton, 913 F.3d 1313, 1320 (11th Cir. 2019)).  Because Plaintiff failed to state a 
cognizable claim in his only count under federal law, the Magistrate Judge further 
recommended  that  the  court  decline  to  exercise  supplemental  jurisdiction  over 


2 Plaintiff’s objection violates this court’s local rules, which limit an objection to a report and 
recommendation to ten pages.  M.D. Fla. Loc. R. 3.01(a).  Nevertheless, in light of Plaintiff’s pro se 
status, the court will consider his objections here.                      
Plaintiff’s remaining state law claims and dismiss the Second Amended Complaint for 
lack of subject matter jurisdiction.  (Id. at 8–10.)  Plaintiff objects and argues that he 
sufficiently pled each element of a First Amendment retaliation claim.  (Dkt. 34 at 12–

19.)  Plaintiff further objects to the Magistrate Judge’s recommendation that the court 
dismiss Plaintiff’s remaining state law claims for lack of subject matter jurisdiction.  
(Id. at 19.)  Plaintiff’s objections are overruled.                       
Plaintiff is correct that to state a claim for First Amendment retaliation, he 
“must demonstrate that (1) he engaged in protected speech; (2) the defendant’s conduct 

adversely affected the protected speech; and (3) a causal connection exists between the 
speech and the defendant’s retaliatory actions.”  Bailey v. Wheeler, 843 F.3d 473, 480–
81 (11th Cir. 2016) (citing Smith v. Mosley, 532 F.3d 1270, 1276 (11th Cir. 2008)); see 
also Echols, 913 F.3d at 1320.  However, “[t]he core of a First Amendment retaliation 

claim, its factual heart, is the subjective motivation to retaliate.”  In re Hubbard, 803 
F.3d 1298, 1310 (11th Cir. 2015).  In the context of First Amendment retaliation 
through the passage of legislation, any inquiry into a legislator’s alleged retaliatory 
motive is necessarily circumscribed by the legislative privilege, which “protects against 
inquiry into acts that occur in the regular course of the legislative process and into the 

motivation for those acts.”  Id. (emphasis in original) (citing United States v. Brewster, 408 
U.S. 501, 525 (1972)); see also Tenney v. Brandhove, 341 U.S. 367, 377 (1951) (declaring 
“that it [i]s not consonant with our scheme of government for a court to inquire into 
the motives of legislators”).  As such, the Eleventh Circuit has held “many times” that 
“when  a  statute  is  facially  constitutional,  a  plaintiff  cannot  bring  a  free-speech 
challenge by claiming that the lawmakers who passed it acted with a constitutionally 
impermissible purpose.”  Hubbard, 803 F.3d at 1312 (collecting cases and citing Artistic 

Ent., Inc. v. City of Warner Robins, 223 F.3d 1306, 1309 (11th Cir. 2000) (stating that, in 
a free-speech challenge to a city ordinance, courts “will ‘not strike down an otherwise 
constitutional statute on the basis of an alleged legislative illicit motive.’”); see also 
NetChoice, LLC v. Att’y Gen., Fla., 34 F.4th 1196, 1225 (11th Cir. 2022) (Plaintiff “hasn’t 

cited—and we’re not aware of—any Supreme Court or Eleventh Circuit decision that 
relied on legislative history or statements by proponents to characterize as viewpoint-
based a law challenged on free-speech grounds.”).  In so holding, the Eleventh Circuit 
relies on the Supreme Court’s decision in United States v. O’Brien, in which the Court 
held  that,  “as  a  ‘principle  of  constitutional  law,’  courts  cannot  ‘strike  down  an 

otherwise constitutional statute on the basis of an alleged illicit legislative motive.’” 
Hubbard, 803 F.3d at 1312 (citing 391 U.S. 367, 383 (1968)); see also O’Brien, 391 U.S. 
at  383–84  (courts  may  not  “void  a  statute  that  is,  under  well-settled  criteria, 
constitutional on its face, on the basis of what fewer than a handful of Congressmen 
said about it.”).                                                         

As alleged in the Second Amended Complaint, Plaintiff appears to base his § 
1983  First  Amendment  retaliation  claim  on  Fine’s  actions  and  statements  in 
advocating for and passing Florida House Bill 269, an anti-litter law under which 
Plaintiff was prosecuted in 2023.  (Dkt. 25 ¶¶ 66–71.)  For instance, in Count Five, 
Plaintiff alleges that Fine “was the driving force behind the drafting and signage of a 
new hate crime enhancement to the Florida litter law, going so far as to campaign at 
press  conferences  for  it,  and to  co-author  the  bill.”    (Id.  ¶  66);  see also (id.  ¶  70 

(“Defendant Fine’s retaliatory animus was the direct and proximate cause of Plaintiff’s 
arrest  arising  from  his  constitutionally  protected  activities.”).)    However,  while 
Plaintiff alludes to the law being unconstitutional as applied to him, he has not brought 
a claim for a declaratory judgment that the statute is unconstitutional on its face or 
otherwise  properly  challenged  the  constitutionality  of  the  statute.    See O’Boyle v. 

Sweetapple, 187 F. Supp. 3d 1365, 1373 (S.D. Fla. 2016) (“The scope of the Court’s 
inquiry into the validity of the ordinance is limited by the claim O’Boyle chose to 
assert.  O’Boyle does not assert a claim for a declaratory judgment that the ordinance 
is unconstitutional.  His claim is solely a claim for retaliation.”); Fuller v. Carollo, No. 

18-24190-CIV, 2019 WL 13293974, at *6 (S.D. Fla. Apr. 30, 2019) (“Plaintiffs have 
not stated a cognizable claim because they do not challenge the constitutionality of the 
ordinance on its face.”), report and recommendation adopted, 2019 WL 13293972 (S.D. 
Fla. June 13, 2019); see also Fed. R. Civ. P. 5.1.  Because Plaintiff has not properly 
challenged the constitutionality of the statute under which he was prosecuted, he 

“cannot bring a free-speech challenge by claiming that the lawmakers who passed it 
acted with a constitutionally impermissible purpose.”  Hubbard, 803 F.3d at 1312; 
O’Boyle, 187 F. Supp. 3d at 1373 (dismissing First Amendment retaliation claim with 
prejudice  where court’s  inquiry  was  limited  to  “whether  the  improper  subjective 
motivation (which at this stage the Court accepts as true) for enacting an otherwise 
neutral ordinance can serve as a basis for finding a First Amendment violation”).  
Plaintiff has therefore failed to state a claim for First Amendment retaliation in Count 

Five and his objection to the Magistrate Judge’s recommendation that Count Five be 
dismissed is overruled.                                                   
Plaintiff further objects to the Magistrate Judge’s recommendation that the 
court decline to exercise supplemental jurisdiction over Plaintiff’s remaining state law 
claims and argues that the court implicitly exercised jurisdiction of Plaintiff’s state law 

claims by analyzing their sufficiency in a previous report and recommendation.  (Dkt. 
34 at 19.)   However, Plaintiff’s objection provides no basis on which the court should 
exercise its discretion and assert supplemental jurisdiction over Plaintiff’s remaining 
state law claims.  See 28 U.S.C. § 1367.  Plaintiff’s objection is therefore overruled. 

  B. Unknown Doe Defendants                                          
In his objection, Plaintiff acknowledged that “he has no objection to this portion 
of the Magistrate[ Judge’s] analysis and will agree to dismiss claims against unknown, 
placeholder Doe Defendants.”  (Dkt. 34 at 12.)  Plaintiff thereafter filed a notice of 
voluntary dismissal as to the Doe Defendants.  (Dkt. 36.)  Accordingly, Plaintiff’s 

objection to the Magistrate Judge’s finding that his claims against the Doe Defendants 
should be dismissed is overruled as moot.                                 
  C. Shotgun Pleading                                                
Plaintiff objects to the Magistrate Judge’s finding that the Second Amended 

Complaint was an impermissible shotgun pleading and that it should be dismissed with 
prejudice and without the opportunity to amend or supplement his pleading.  (Dkt. 34 
at 5–12.)  Upon review, each count of the Third Amended Complaint re-alleges and 
incorporates all other paragraphs, “causing each successive count to carry all that came 
before and the last count to be a combination of the entire complaint.”  Weiland v. Palm 

Beach Cnty. Sheriff’s Off., 792 F.3d 1313, 1321 (11th Cir. 2015); cf. Pinson v. JPMorgan 
Chase Bank, Nat’l Ass’n, 942 F.3d 1200, 1208 (11th Cir. 2019) (“It is true that each count 
of Mr. Pinson’s pro se complaint adopts the allegations of all preceding counts. . . . 
But it does not contain endless irrelevancies.  And it does what complaints must do: it 
‘give[s] the defendant[ ] adequate notice of the claims against [it] and the grounds upon 

which each claim rests.’”).  Further, it is not entirely clear on what basis Plaintiff 
asserts each count, and in particular on what grounds he asserts his claim for First 
Amendment retaliation.  See (Dkt. 31 at 7.)  Plaintiff’s Second Amended Complaint is 
therefore an improper shotgun pleading and Plaintiff’s objection to the Magistrate 
Judge’s findings on this ground are overruled.                            

  D. Opportunity to Amend or Supplement                              
Having concluded that Plaintiff failed to state a claim in Count Five, declining 
to  exercise  supplemental  jurisdiction  over  Plaintiff’s  remaining  state  law  claims, 
dismissing the Doe Defendants, and finding that the Second Amended Complaint 
constitutes a shotgun pleading, the court finds that Plaintiff should be afforded one 
final opportunity to properly plead his claims in accordance with this order and the 
court’s prior reports and recommendations and orders in this matter.  If Plaintiff “fails 

to make meaningful changes to his complaint . . . the court may dismiss the complaint 
under either Rule 41(b), Fed. R. Civ. P, or the court’s inherent power to manage its 
docket.”  Barone v. Wells Fargo Bank, N.A., 757 F. App’x 877, 879 (11th Cir. 2018) 
(quoting Weiland, 792 F.3d at 952); see also Novero v. Duke Energy, 753 F. App’x 759, 
767 (11th Cir. 2018) (“While dismissal is an extraordinary remedy, dismissal upon 

disregard of an order, especially where the litigant has been forewarned, generally is 
not an abuse of discretion.”) (quoting Moon v. Newsome, 863 F.2d 835, 837 (11th Cir. 
1989)).    Plaintiff’s  objections  to  the  Magistrate  Judge’s  finding  that  his  Second 
Amended  Complaint  be  dismissed  with  prejudice  and  denying  his  Motion  to 

Supplement (Dkt. 29) are therefore sustained in part, to the extent that Plaintiff may 
file an amended complaint in this matter.                                 
                     CONCLUSION                                      
Accordingly, for the reasons stated above:                           
1.   Plaintiff’s  Objections  to  the  Magistrate  Judge’s  Reports  and 

     Recommendations (Dkt. 34) are overruled in part.                
2.   The Reports and Recommendations (Dkts. 31, 32) are adopted in part as 
     discussed herein.                                               
 3.     Plaintiff's Motion to Proceed In Forma Pauperis (Dkt. 26) is DENIED 
       without prejudice. 
 4.     Plaintiff's Rule  15(d) Motion for Leave to Supplement Plaintiff's Third 
       Amended Complaint (Dkt. 29) is DENIED as moot. 
 5.     Plaintiffs  Second  Amended  Complaint  (Dkt.  25)  is  DISMISSED 
       without prejudice. 
 6.     The Clerk of Court is directed to STRIKE Plaintiff's preemptively filed 
       Third Amended Complaint (Dkt. 39). 
 7.     Plaintiff shall file  a Third Amended Complaint, if any, that complies with 
       this order, the prior orders of the court, the court’s Local Rules, and the 
       Federal Rules of Civil Procedure within 21 days. 
 8.     Upon filing the Third Amended Complaint, Plaintiff shall either pay the 
       required filing fee or seek leave to proceed in forma pauperis. 
 ORDERED in Orlando, Florida, on June 25, 2024. 

                                  (  a      _   hack 
                                           JUVIE S. SNEED 
                                  UNITED STATES DISTRICT  JUDGE 

Copies furnished to: 
Counsel of Record 
Unrepresented Party 

                                -12-