CHARLEY v. FLORIDA DEPARMENT OF REVENUE et al

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UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
PENSACOLA DIVISION
NASHUN DARNELL CHARLEY,
Plaintiff,
vs. 	Case No.: 3:25cv1823/TKW/ZCB
DAVID BEARDEN, et al.,
Defendants.
____________________________________/
REPORT AND RECOMMENDATION
Plaintiff, proceeding pro se and in forma pauperis, has filed a second
amended complaint. (Doc. 7). The Court is statutorily required to screen
Plaintiff’s second amended complaint to determine if it is frivolous or
malicious, fails to state a claim on which relief may be granted, or seeks
monetary relief against an immune defendant. 28 U.S.C. § 1915(e)(2)(B).
Having reviewed the second amended complaint, dismissal is warranted
for the reasons below.
I. 	The Allegations in the Second Amended Complaint
Plaintiff names two Defendants in his second amended complaint:
(1) David Bearden, an attorney with the Florida Department of Revenue;
and (2) Mark Rubin, a child support hearing officer. 	(Doc. 7 at 3).
Plaintiff alleges on August 13, 2025, he appeared via Zoom for a child
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support hearing. (Id. at 4). Defendant Rubin was the presiding hearing
officer. 	(Id.). 	During the hearing, Defendant Bearden allegedly told
Plaintiff “how bout you take your gold teeth out your mouth and pay your
child support.” (Id.). Plaintiff claims this remark was discriminatory and
derogatory. (Id.).
Plaintiff states he is disabled and was treated unfairly during the
hearing. (Id. at 5). Plaintiff alleges Defendant Bearden’s remark caused
him emotional distress and embarrassment. 	(Id.). 	Plaintiff further
alleges the remark violated his rights to fair and equal treatment. (Id.).
Plaintiff states that Defendant Rubin failed to reprimand Defendant
Bearden for the remark and, therefore, condoned the misconduct. 	(Id.).
Plaintiff also claims Defendant Rubin failed to properly review Plaintiff’s
documentation showing he is disabled and unable to work. (Id.).
Plaintiff brings three claims in his second amended complaint: (1)
an ADA claim under 42 U.S.C. § 12132 against both Defendants; (2) a
due process claim under 42 U.S.C. § 1983 against Defendant Rubin; and
(3) an equal protection claim under 42 U.S.C. § 1983 against Defendant
Bearden. 	(Doc. 7 at 6). 	For relief, Plaintiff seeks monetary damages,
declaratory and injunctive relief, and costs and attorney’s fees. (Id. at 6-
9).
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II. 	Legal Standard
To survive dismissal at the screening phase, “a complaint must
contain sufficient factual matter, accepted as true, to state a claim to
relief that is plausible on its face.” 	Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (internal quotation marks omitted). 	The plausibility standard is
met only where the facts alleged enable “the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” 	Id.
Plausibility means “more than a sheer possibility that a defendant has
acted unlawfully.” 	Id. 	“Where a complaint pleads facts that are merely
consistent with a defendant’s liability, it stops short of the line between
possibility 	and 	plausibility 	of 	entitlement 	to 	relief.” 	Id. 	(internal
quotation marks omitted).
III. Discussion
A. Defendant Rubin is entitled to quasi-judicial immunity.
Plaintiff has sued Defendant Rubin, a child support hearing officer,
for actions he allegedly took (or failed to take) in Plaintiff’s child support
case. 	Because Defendant Rubin is entitled to quasi-judicial immunity,
Plaintiff’s claims against him must be dismissed.
Judges are entitled to absolute immunity for acts taken in their
judicial 	capacities 	unless 	they 	acted 	“in 	the 	clear 	absence 	of 	all
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jurisdiction.” 	Bolin v. Story, 225 F.3d 1234, 1239 (11th Cir. 2000)
(cleaned up). Whether a judge’s actions were made in a judicial capacity
depends on whether: (1) the act complained of constituted a normal
judicial function; (2) the events occurred in the judge’s chambers or in
open court; (3) the controversy involved a case pending before the judge;
and (4) the confrontation arose immediately out of a visit to the judge in
his judicial capacity. 	Sibley v. Lando, 437 F.3d 1067, 1070 (11th Cir.
2005).
The doctrine of “[a]bsolute quasi-judicial immunity derives from
absolute judicial immunity.” 	Roland v. Phillips, 19 F.3d 552, 555 (11th
Cir. 1994). 	Under that doctrine, individuals are entitled to immunity
“when their official duties have an integral relationship with the judicial
process.” Id. (cleaned up). But like judges, “these officials must be acting
within the scope of their authority.” 	Id. 	“When judicial immunity is
extended to officials other than judges, it is because their judgments are
functionally comparable to those of judges—that is, because they, too,
exercise a discretionary judgment as part of their function.” 	Antoine v.
Byers & Anderson, Inc., 508 U.S. 429, 436 (1993) (cleaned up).
Here, as part of Defendant Rubin’s official duties, he presided over
Plaintiff’s child support hearing. 	In doing so, he performed a task
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functionally comparable to judges and exercised discretionary authority.1
Thus, when Defendant Rubin presided over the child support hearing, he
was “committing judicial acts.” 	See Lewis v. Castro, 6:24-cv-1608, 2024
WL 5673709, at *3 (M.D. Fla. Sept. 12, 2024) (finding that child support
hearing 	officer 	was 	entitled 	to 	quasi-judicial 	immunity); 	see 	also
Hutcheson v. Campbell, No. 8:23-cv-105, 2023 WL 2352845, at *3-4 (M.D.
Fla. Feb. 13, 2023) (same). 	Moreover, Plaintiff has failed to plausibly
allege that Defendant Rubin was acting in the clear absence of all
jurisdiction. Dismissal, therefore, is warranted on the grounds of quasi-
judicial immunity.2 	See Austin v. McCann, No. 22-13157, 2023 WL
3335312, at *2-3 (11th Cir. May 10, 2023) (affirming dismissal of claims
against Florida child support hearing officer on immunity grounds).
1 Child support hearing officers in Florida “are appointed by the chief
judge 	of 	the 	judicial 	circuit 	and 	are 	empowered 	to 	issue 	process,
administer oaths, require the production of documents, and conduct
hearings for the purpose of taking evidence.” 	Austin v. McCann, No. 22-
13157, 2023 WL 3335312, at *2-3 (11th Cir. May 10, 2023) (cleaned up).
2 This immunity extends to Plaintiff’s request for equitable relief because
there 	is 	no 	plausible 	allegation 	that 	Defendant 	Rubin 	violated 	a
declaratory decree and there was an available remedy at law—i.e., a state
court appeal. 	See Tarver v. Reynolds, 808 F. App’x 752, 754 (11th Cir.
2020) 	(recognizing 	that 	judicial 	immunity 	extends 	to 	claims 	for
declaratory and injunctive relief, unless the judicial officer violated a
declaratory decree or there is no adequate remedy at law, such as an
appeal through the state appellate process).
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B. Sovereign immunity bars Plaintiff’s official capacity claims
against Defendant Bearden.
In the absence of a State waiver or congressional abrogation, the
Eleventh Amendment doctrine of sovereign immunity “bars a damages
action against a State in federal court.” 	Kentucky v. Graham, 473 U.S.
169, 169 (1985). That bar “remains in effect when State officials are sued
for damages in their official capacity.” 	Id.
Here, Defendant Bearden is an official with the Florida Department
of Revenue. 	He has been sued in his official capacity for damages.
Because “Congress has not abrogated Eleventh Amendment immunity in
§ 1983 cases, and the State of Florida has not waived sovereign immunity
or consented to suit with respect to such actions,” sovereign immunity
bars 	Plaintiff’s 	official 	capacity 	damages 	action 	against 	Defendant
Bearden. 	Driessen v. Univ. of Miami Sch. of Law, 835 F. App’x 489, 492
(11th Cir. 2020).
C. Plaintiff has not plausibly alleged an equal protection claim
against Defendant Bearden in his individual capacity.
Plaintiff brings an individual capacity Fourteenth Amendment
equal protection claim against Defendant Bearden. 	(Doc. 7 at 6). 	But
Plaintiff has not plausibly alleged an equal protection claim.
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The Fourteenth Amendment’s “Equal Protection Clause requires
the government to treat similarly situated persons in a similar manner.”
Leib v. Hillsborough Cnty. Pub. Transp. Comm’n, 558 F.3d 1301, 1305
(11th Cir. 2009). 	“To establish an equal protection claim, a [plaintiff]
must demonstrate that (1) he is similarly situated to other [individuals]
who received more favorable treatment; and (2) the state engaged in
invidious discrimination against him based on race, religion, national
origin, or some other constitutionally protected basis.” 	Sweet v. Sec’y,
Dep’t of Corr., 467 F.3d 1311, 1318-19 (11th Cir. 2006). A plaintiff must
first make a threshold showing that he was treated differently from
others who were similarly situated. 	Nordlinger v. Hahn, 505 U.S. 1, 10
(1992); Hendking v. Smith, 781 F.2d 850, 851 (11th Cir. 1986). “Proof of
discriminatory intent or purpose is [also] a necessary prerequisite to any
Equal Protection Clause claim.” 	Corey Airport Servs., Inc. v. Clear
Channel Outdoor, Inc., 682 F.3d 1293, 1297 (11th Cir. 2012).
The Equal Protection Clause is also implicated in “class of one”
claims. 	Campbell v. Rainbow City, Ala., 434 F.3d 1306, 1314 (11th Cir.
2006). 	A “class of one” claim does not allege discrimination against a
protected class; rather it alleges that the plaintiff “has been intentionally
treated differently from others similarly situated and that there is no
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rational basis for the difference in treatment.” 	Griffin Indus. v. Irvin,
496 F.3d 1189, 1202 (11th Cir. 2007). The same strict “similarly situated”
standard applies whether an equal protection claim is brought under a
“class of one” theory or a traditional theory of unlawful discrimination.
Id. at 1204-05. 	Indeed, the “similarly situated” requirement must be
rigorously applied in the context of “class of one” claims. 	See Leib v.
Hillsborough Cnty. Pub. Transp. Comm’n, 558 F.3d 1301, 1306-07 (11th
Cir. 2009). 	To “apply the similarly situated requirement with rigor”
means that the comparators “must be prima facie identical in all relevant
respects.” Chabad Chayil, Inc. v. Sch. Bd. of Miami-Dade Cnty., Fla., 48
F.4th 1222, 1233 (11th Cir. 2022) (cleaned up).
Plaintiff’s second amended complaint fails to identify any similarly
situated comparator as required to support an equal protection claim.
Nowhere does Plaintiff point to other individuals who are similarly
situated to him and received more favorable treatment. 	Thus, because
Plaintiff fails to allege any comparator, he has not plausibly alleged an
equal protection claim. 	See Griffin Indus., 496 F.3d at 1204-05 (stating
that the “similarly situated” requirement applies to both traditional and
class of one equal protection claims); see also K.W. v. Lee Cnty. Sch. Bd.,
67 F. Supp. 3d 1330, 1339 (M.D. Fla. 2014) (“There are . . . no allegations
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suggesting that the other minor children at Allen Park Elementary
School were similarly situated in all relevant respects. Plaintiff must do
more than assert that other, unidentified students, were given better
treatment.”) (cleaned up).
Even if Plaintiff had plausibly alleged a comparator, Plaintiff’s
second amended complaint fails to plausibly allege the “discriminatory
intent or purpose . . . necessary to any Equal Protection Clause claim[.]”3
Corey Airport, 682 F.3d at 1297. 	The sole allegation against Defendant
Bearden is that he told Plaintiff “how bout you take your gold teeth out
your mouth and pay your child support.” 	(Doc. 7 at 4). 	Based on this
comment, Plaintiff concludes he was discriminated against because of his
disability. 	(Id. 	at 	4-5, 	7). 	Plaintiff’s 	allegations 	of 	intentional 	or
purposeful discrimination, however, are speculative and conclusory.
Nowhere in Plaintiff’s second amended complaint does he plausibly
allege that Defendant Bearden intentionally discriminated against him
3 Because class of one equal protection claims require a showing of
intentionality, 	Plaintiff’s 	second 	amended 	complaint 	also 	fails 	to
plausibly allege such a claim under a class of one theory. 	See PBT Real
Est., LLC v. Town of Palm Beach, 988 F.3d 1274, 1285 (11th Cir. 2021)
(“In order to prevail [on a class of one equal protection claim], a plaintiff
must show that [he] has been 	intentionally 	treated differently from
others similarly situated and that there is no rational basis for the
difference in treatment.”) (cleaned up and emphasis added).
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on the basis of disability. The alleged “gold teeth” comment by Defendant
Bearden has no apparent connection to Plaintiff’s alleged disability. 	At
bottom, speculation and conclusions of discriminatory intent are all that
Plaintiff has included in his second amended complaint. 	See Mack v.
City of High Springs, 486 F. App’x 3, 8 (11th Cir. 2012) (“Indeed, Mr.
Mack only alleged in a conclusory manner that he was discriminated
against because of his . . . disability. 	Such conclusory allegations,
however, are not sufficient to properly state a claim.”). 	Because
Plaintiff’s second amended complaint fails to plausibly allege that he was
intentionally discriminated against because of his disability, Plaintiff
fails to state an equal protection claim.
D. Plaintiff has not plausibly alleged an individual capacity
claim against Defendant Bearden under 42 U.S.C. § 12132.
Plaintiff asserts an ADA claim under 42 U.S.C. § 12132 because
Defendant Bearden allegedly discriminated against him on the basis of
disability. (Doc. 7 at 6). Plaintiff, however, fails to plausibly allege such
a claim.
“Title II of the ADA . . . forbid[s] discrimination on the basis of
disability in the provision of public services.” 	J.S., III by & through J.S.
Jr. v. Houston Cnty. Bd. of Educ., 877 F.3d 979, 985 (11th Cir. 2017)
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“Title II of the ADA provides that ‘no qualified individual with a disability
shall, by reason of such disability, be excluded from participation in or be
denied the benefits of the services, programs, or activities of a public
entity, or be subjected to discrimination by any such entity.’” Id. (quoting
42 U.S.C. § 12132).
To state a Title II ADA claim, “a plaintiff must demonstrate (1) that
he is a qualified individual with a disability; (2) that he was either
excluded from participation in or denied the benefits of a public entity’s
services, programs, or activities, or was otherwise discriminated against
by the public entity; and (3) that the exclusion, denial of benefit, or
discrimination was by reason of the plaintiff’s disability.” 	Id. (cleaned
up). 	“In the ordinary course, proof of a Title II . . . violation entitles a
plaintiff only to injunctive relief.” Silberman v. Miami Dade Transit, 927
F.3d 1123, 1134 (11th Cir. 2019). 	“To get damages . . . a plaintiff must
clear an additional hurdle: he must prove that the entity that he has sued
engaged in intentional discrimination, which 	requires a showing of
deliberate indifference.” 	Id. (cleaned up). “Deliberate indifference . . . is
an exacting standard” requiring “proof that the defendant knew that
harm to a federally protected right was substantially likely and failed to
act on that likelihood.” 	Id. (cleaned up).
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As an initial matter, Plaintiff has not plausibly alleged that he is
an individual with a qualifying disability under the ADA. His claim fails
on that basis alone. But even if Plaintiff had plausibly alleged that he is
an individual with a qualifying disability, his claim still fails because
Plaintiff has not plausibly alleged any exclusion, denial of benefits, or
discrimination.
The only allegation against Defendant Bearden is that he told
Plaintiff “how bout you take your gold teeth out your mouth and pay your
child support.” 	(Doc. 7 at 4). 	But there is no allegation that Defendant
Bearden somehow excluded Plaintiff from, or denied the benefits of, a
public entity’s services. And Defendant Bearden’s alleged comment in no
way relates to Plaintiff’s disability. 	The comment is about Plaintiff
wearing gold teeth and not paying child support—not Plaintiff’s alleged
disability. 	Because there are no plausible allegations that Defendant
Bearden 	discriminated 	against 	Plaintiff 	because 	of 	a 	qualifying
disability, Plaintiff has not stated a plausible claim under 42 U.S.C. §
12132. 	See Mack v. City of High Springs, 486 F. App’x 3, 7 (11th Cir.
2012) (“Accepting as true the allegations that Mr. Mack is disabled and
that he was discriminated against, Mr. Mack failed to allege facts
suggesting 	that 	the 	defendants’ 	actions—providing 	more 	favorable
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treatment to his neighbor and responding more favorably and seriously
to the complaints made by his neighbor—were due to his disability.”)
(emphasis added).
E. Leave to amend would be futile.
Ordinarily, “a district court must give a pro se party at least one
chance to amend the complaint if a more carefully drafted complaint
might state a claim.” Hall v. Merola, 67 F.4th 1282, 1295 (11th Cir. 2023)
(cleaned up). 	But the Court need not provide an opportunity to amend
where any amendment would be futile. Id. “Leave to amend a complaint
is futile when the complaint as amended would still be properly dismissed
or be immediately subject to summary judgment for the defendant.”
Cockrell v. Sparks, 510 F.3d 1307, 1310 (11th Cir. 2007).
As explained above, Defendant Rubin is entitled to quasi-judicial
immunity meaning any further attempts to bring claims against him
would be futile. 	See Austin v. McCann, 2023 WL 3335312, at *2-3 (11th
Cir. May 10, 2023) (affirming dismissal of claims against Florida child
support hearing officer on immunity grounds and stating that because
those 	claims, 	“even 	if 	amended, 	would 	still 	be 	barred 	by 	judicial
immunity . . . any amendment would have been futile”).
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With regard to Defendant Bearden, Plaintiff cannot maintain any
official capacity claims against him due to sovereign immunity. 	For his
individual capacity claims, Plaintiff’s sole allegation against Defendant
Bearden—that he told Plaintiff “how bout you take your gold teeth out
your mouth and pay your child support”—simply has no relation to
Plaintiff’s 	disabilities 	or 	any 	plausible 	assertion 	of 	disability
discrimination necessary support an equal protection claim or an ADA
Title II claim. 	There is no reason to believe that if given another
opportunity to amend that Plaintiff can state a plausible equal protection
or ADA Title II claim based on what allegedly happened here. 	Thus,
dismissal without leave to amend is appropriate.
IV. 	Conclusion
For the reasons above, it is respectfully RECOMMENDED that:
1. 	Plaintiff’s 	second 	amended 	complaint 	(Doc. 	7) 	be
DISMISSED under 28 U.S.C. § 1915(e)(2)(B)(ii)-(iii) because it fails to
state a claim on which relief may be granted and seeks monetary relief
against immune defendants.
2. 	The Clerk of Court be directed to enter judgment accordingly
and close the case.
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At Pensacola, Florida, this 7th day of November 2025.
/s/
Zachary C. Bolitho
Zachary C. Bolitho
United States Magistrate Judge
Notice to the Parties
Objections to these proposed findings and recommendations must
be 	filed 	within 	fourteen 	days 	of 	the 	date 	of 	the 	Report 	and
Recommendation. 	Any 	different 	deadline 	that 	may 	appear 	on 	the
electronic docket is for the court’s internal use only and does not control.
An objecting party must serve a copy of the objections on all other parties.
A 	party 	who 	fails 	to 	object 	to 	the 	magistrate 	judge’s 	findings 	or
recommendations contained in a report and recommendation waives the
right 	to 	challenge 	on 	appeal 	the 	district 	court’s 	order 	based 	on
unobjected-to factual and legal conclusions. 	See 11th Cir. Rule 3-1; 28
U.S.C. § 636.
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