Eric Watkins v. Fort Lauderdale Police Officer

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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-11008
Non-Argument Calendar
____________________
ERIC WATKINS,
Plaintiff-Appellant,
versus
FORT LAUDERDALE POLICE OFFICER,
unknown name,
CITY OF FORT LAUDERDALE,
Defendants-Appellees.
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2 Opinion of the Court 21-11008
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 0:21-cv-60081-RS
____________________
Before LUCK, LAGOA, and BRASHER, Circuit Judges.
PER CURIAM:
Eric Watkins appeals the denial of his pro se motion for
leave to file a complaint in the district court. Watkins intended to
bring claims against the City of Fort Lauderdale and an unknown
police officer arising under 42 U.S.C. § 1983. Pursuant to a sanc-
tions order requiring Watkins to seek leave of court prior to initi-
ating a new lawsuit in the Southern District of Florida, the district
court screened the proposed complaint and concluded that Wat-
kins’s claims lacked merit. After careful review, we affirm the dis-
trict court’s order in part, vacate the order in part, and remand with
instructions to docket Watkins’s complaint.
I.
The following factual circumstances are recited from Wat-
kins’s filings in the district court, and we assume they are true for
the purposes of our analysis.
Watkins encountered the police officer in the parking lot of
a Fort Lauderdale post office. Watkins was in the parking lot
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21-11008 Opinion of the Court 3
singing “an anti-gay song” for some time. The officer, after observ-
ing Watkins from his patrol car for more than an hour, exited his
vehicle with a dog and “walk[ed] through the parking lot.” Watkins
began videotaping the officer. When the officer noticed that Wat-
kins was videotaping, he shined a flashlight at Watkins and “or-
der[ed]” him to stop videotaping. Watkins “ignore[d]” the order
and continued to sing and film.
The officer then approached Watkins and permitted his dog
to climb on Watkins’s car. Watkins asked the officer whether there
was a problem, and the officer told Watkins to leave the parking
lot “right now” and never come back. Watkins asked if the officer’s
command was related to trespassing, and the officer “nodded his
head.” Watkins then left the parking lot.
This was not the first time Watkins had encountered the of-
ficer in the post office parking lot. “[A] long time” before the inci-
dent, the same officer had “threatened” to “permanently trespass
[Watkins] from the parking lot” for singing and videotaping.
Based on the encounter, Watkins filed a motion seeking
leave to file a complaint in the district court. The proposed com-
plaint alleges violations of his constitutional rights under the First
and Fourteenth Amendments. He contends that the officer’s order
constituted retaliation for a protected First Amendment activity.
And he argues that the City failed to provide an adequate pre-dep-
rivation process before banning him from the parking lot.
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4 Opinion of the Court 21-11008
The district court denied the motion, concluding that Wat-
kins’s claims were meritless. The district court explained that Wat-
kins failed to “pl[ead] a city custom or policy that resulted in a con-
stitutional violation,” dooming any claim against the City and the
officer in his official capacity. As for the claim against the officer
individually, the district court determined that Watkins had failed
to plead any facts that would “establish a constitutional violation.”
Watkins filed a timely notice of appeal.
II.
Because “[a] determination of frivolity is best left to the dis-
trict court,” we review that determination “only for abuse of dis-
cretion.” Bilal v. Driver, 251 F.3d 1346, 1349 (11th Cir. 2001). “A
claim is frivolous if it is without arguable merit either in law or
fact.” Id. “A district court abuses its discretion if it . . . applies the
law in an unreasonable or incorrect manner . . . .” Citizens for Po-
lice Accountability Pol. Comm. v. Browning, 572 F.3d 1213, 1216–
17 (11th Cir. 2009). We review pleadings by a pro se litigant “more
liberally than those of a represented party.” Loren v. Sasser, 309
F.3d 1296, 1301 (11th Cir. 2002).
III.
Section 1983 prohibits individuals acting under color of state
law from depriving another of a constitutional right. 42 U.S.C. §
1983. The First Amendment provides that “Congress shall make no
law . . . abridging the freedom of speech, or . . . the right . . . to
petition the government for a redress of grievances.” U.S. Const.
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21-11008 Opinion of the Court 5
amend. I. A First Amendment retaliation claim against an official
has three elements. Echols v. Lawton, 913 F.3d 1313, 1320 (11th
Cir. 2019). A plaintiff must allege: (1) that he engaged in protected
speech, (2) that the official’s conduct adversely affected the pro-
tected speech, and (3) that a causal connection exists between the
speech and the official’s retaliatory conduct. Id. Moreover, to hold
a municipality liable for a constitutional violation, a claimant must
allege that a “custom or policy” of the municipality “caused the vi-
olation.” McDowell v. Brown, 392 F.3d 1283, 1289 (11th Cir. 2004).
We cannot say that the allegations in Watkins’s complaint
failed to state an arguably meritorious First Amendment claim
against the officer. First, Watkins was at least arguably engaged in
a constitutionally protected activity. See Smith v. City of Cum-
ming, 212 F.3d 1332, 1333 (11th Cir. 2000) (holding that individuals
have a First Amendment right, subject to restrictions, to videotape
officers); see also Otto v. City of Boca Raton, Fla., 981 F.3d 854, 859
(11th Cir. 2020) (explaining that even “controversial speech” is pro-
tected by the First Amendment). Second, the officer’s order to
leave arguably adversely affected Watkins’s ability to exercise his
First Amendment rights because it required him to cease his con-
stitutionally protected activity. And third, a causal relationship at
least arguably exists between the officer’s order and Watkins’s
speech. According to Watkins, the officer previously threatened to
ban him from the same parking lot for engaging in the same activ-
ity. Therefore, we cannot say that Watkins’s First Amendment
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6 Opinion of the Court 21-11008
claim was frivolous, and the district court should have permitted
Watkins to file the complaint.
We can say, however, that Watkins’s complaint was with-
out merit to the extent he sought to impose liability on the City for
the officer’s alleged First Amendment violation. The proposed
complaint contains no allegations that would tie any policy or cus-
tom of the City to the officer’s conduct.
The district court did not address Watkins’s remaining alle-
gations, and we do not either. As we read his proposed complaint,
Watkins intended to bring a claim under the Due Process Clause
of the Fourteenth Amendment against the City and the officer for
interfering with his right to enjoy public property without pre-dep-
rivation notice and a right to be heard. We do not address the mer-
its of that claim.
IV.
For these reasons, we AFFIRM the district court’s conclu-
sion that Watkins’s First Amendment claim against the City of Fort
Lauderdale was frivolous. We VACATE the remainder of the de-
nial of Watkins’s motion for leave to file a complaint and
REMAND with instructions to docket Watkins’s proposed com-
plaint.