United States District Court, M.D. Florida, Fort Myers Division
OPINION AND ORDER 
POLSTER CHAPPELL UNITED STATES DISTRICT JUDGE.
23, 2018, the Court issued an Order (Doc. 12) dismissing the
initial purported class action complaint filed in this action
by seven detainees in the Lee County Jail for failing to
state a claim upon which relief may be granted without
prejudice to each pro se plaintiff filing their own
amended complaint. Pending before the Court is Plaintiff
Jadarius Wardlow's Amended Complaint for Violation of
Civil Rights (Doc. 13) filed June 1, 2018, accompanied by his
motion to proceed in forma pauperis (Doc. 14).
Plaintiff is a “prisoner” and seeks to proceed in
forma pauperis, the Court is required to review the Amended
Complaint and “dismiss the complaint, or any portion of
the complaint” if the Court finds that the complaint
“is frivolous, malicious, or fails to state a claim
upon which relief may be granted; or, alternatively
“seeks monetary relief from a defendant who is immune
from such relief.” 28 U.S.C. § 1915A(a)-(b);
see also 28 U.S.C. § 1915(e)(2).
complaint may be dismissed as frivolous under § 1915
where it lacks an arguable basis in law or fact . Neitzke
v. Williams, 490 U.S. 319, 325 (1989). A claim is
frivolous as a matter of law where, inter alia, the
defendants are immune from suit or the claim seeks to enforce
a right that clearly does not exist. Id. at 327. In
addition, where an affirmative defense would defeat a claim,
it may be dismissed as frivolous. Clark v. Georgia
Pardons & Paroles Bd., 915 F.2d 636, 640 n.2 (11th
phrase “fails to state a claim upon which relief may be
granted” has the same meaning as the nearly identical
phrase in Federal Rule of Civil Procedure 12(b)(6). See
Mitchell v. Farcass, 112 F.3d 1483, 1490 (11th Cir.
1997) (“The language of section 1915(e)(2)(B)(ii)
tracks the language of Federal Rule of Civil Procedure
12(b)(6), and we will apply Rule 12(b)(6) standards in
reviewing dismissals under section
1915(e)(2)(B)(ii).”). That is, although a complaint
need not provide detailed factual allegations, there
“must be enough to raise a right to relief above the
speculative level, ” and the complaint must contain
enough facts to state a claim that is “plausible on its
face.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555-56 (2007).
making the above determinations, all factual allegations in
the complaint must be viewed as true. Brown v.
Johnson, 387 F.3d 1344, 47 (11th Cir. 2004). Moreover,
the Court must read the plaintiff's pro se
allegations in a liberal fashion. Haines v. Kerner,
404 U.S. 519 (1972).
state a claim under 42 U.S.C. § 1983, a plaintiff must
allege that (1) the defendant deprived him of a right secured
under the Constitution or federal law, and (2) the
deprivation occurred under color of state law. Bingham v.
Thomas, 654 F.3d 1171, 1175 (11th Cir. 2011) (citing
Arrington v. Cobb County, 139 F.3d 865, 872 (11th
Cir. 1998). In addition, a plaintiff must allege and
establish an affirmative causal connection between the
defendant's conduct and the constitutional deprivation.
Marsh v. Butler County, Ala., 268 F.3d 1014, 1059
(11th Cir. 2001); Swint v. City of Wadley, Ala., 51
F.3d 988, 999 (11th Cir. 1995); Tittle v. Jefferson
County Comm'n, 10 F.3d 1535, 1541 n.1 (11th Cir.
Amended Complaint names three defendants: The State of
Florida, Ita M. Neymotin, and Kathleen Smith. Doc. 13 at 1-2.
All defendants are sued in their individual and official
capacities. Id. at 2. Although not identified as
such in the Amended Complaint, the Court takes judicial
notice that Defendant Ita M.Neymotin is the head of The
Office of Criminal Conflict and Civil Regional Counsel for
the Twentieth Judicial Circuit
(“OCCCRC”) and Defendant Kathleen Smith is the
elected Public Defender for the Twentieth Judicial Circuit.
Although identifying three defendants, the Amended Complaint
contains allegations against only Ms. Smith. Doc. 13 at 5.
More specifically, the Amended Complaint states Ms. Smith
“acted as an Esquire, violating Art. I, Section
9&10 of the U.S. Constitution”; “presented no
delegation of authority order signed by Congress”;
“violated the 4th, 5th, 6th, 8th & 14th Amendments
of the U.S. Constitution”; “did not allow the
plaintiffs to have conflict of interest counsel”; and
“disregarded the challenge of jurisdiction.”
Id. at 5(D). Elsewhere the Amended Complaint
contains an “Additional” . . . “Statement
of Claim” that generally claims Ms. Smith failed to
perform various acts in connection with Plaintiff's
defense, such as providing “a verified victim” or
“a competent factual witness, ” or withholding
“exculpatory evidence.” See Id. at 12.
To the extent discernable, it appears that Plaintiff is
attributing certain actions taken by Mr. Gaither,
Plaintiff's previously appointed public defender,
Ms. Smith. The Amended Complaint further states that Ms.
Smith “conspired to falsely arrest and maliciously
prosecute[e] the plaintiff [ ]” and “initiated
and maintained a malicious prosecution.” Doc. 13 at 12.
As relief, Plaintiff seeks more than 85 million dollars.
outset, Plaintiff's claims against the State of Florida
are barred by the Eleventh Amendment. See Allen v.
Florida, 458 Fed.Appx. 841, 843 (11th Cir.
2012)(citing McClendon v. Ga. Dep't of Cmty.
Health, 261 F.3d 1252, 1256 (11th Cir. 2001)). Further,
the Amended Complaint is completely devoid of any factual
allegations as to Ms. Neymotin.
regard to Ms. Smith, the Supreme Court has held that a public
defender “does not act under color of state law when
performing a lawyer's traditional functions as counsel to
a defendant in a criminal proceeding.” Polk County,
et al. v. Dodson, 454 U.S. 312, 325 (1981) (footnote
omitted); Hall v. Tallie, 597 Fed.Appx. 1042, 1044 (11th Cir.
2015); Grinder v. Cook, 522 Fed.Appx. 544, 547 (11th
Cir. 2007). Consequently, Ms. Smith is not deemed a state
actor and no viable § 1983 claim is stated to the extent
that the Amended Complaint attributes liability to Ms. Smith
due to her alleged incompetence or her failure to undertake
certain actions to vigorously defend Plaintiff in his
underlying criminal proceeding.
a public defender may be liable under § 1983 if he or
she conspires with someone who did deprive the plaintiff of
one or more of his legally recognized rights under color of
state law.” Hall, 597 Fed.Appx. at 1044
(citing Wahl V.McIver, 773 F.2d 1169, 1172-73 (11th
Cir. 1985)). The Amended Complaint, however, fails to
“illustrate facts sufficient to show that the Public
Defender either acted under of color of state law or
participated in a conspiracy.” Hall,
Id. Instead, the Amended Complaint contains only
vague conclusory allegations without any specific facts to
suggest a conspiracy between Ms. Smith and any state
officials to maintain a § 1983 action. Conclusory
allegations of a conspiracy are insufficient to allege a
valid conspiracy claim. “To establish a prima facie
case of section 1983 conspiracy, a plaintiff must show, among
other things, that defendants “ ‘reached an
understanding to violate [his] rights.' “ Rowe
v. City of Ft. Lauderdale, 279 F.3d 1271, 1283 (11th
Cir. 2002). (quoting Strength v. Hubert, 854 F.2d
421, 425 (11th Cir.1988)). Here, the Amended Complaint does
not allege that Defendant Smith reached an understanding to
violate his rights. See Phillips v. Mashburn, 746
F.2d 782, 785 (11th Cir.1984). (The “naked assertion of
a conspiracy. . . without supporting, operative facts”
establishing an agreement among defendants and a plan to put
the agreement into effect, is inadequate to trigger §
it is now
Amended Complaint (Doc. 13) is DISMISSED
pursuant to 28 U.S.C. § 1915A(b)(1) and (2), and 28
U.S.C. § 1915(e)(2)(B)(ii) and (iii). The Clerk shall
enter judgment ...