Verrier v. Perrino et al

Filing 164

OPINION AND ORDER granting 147 defendants P. Perrino and D. LaPaugh's Motion for Summary Judgment. The Clerk is directed to enter judgment in favor of defendants and against plaintiff as to Counts I, II, III, and IV, terminate all pending motions and deadlines, and close the file. See Opinion and Order for details. (AMB)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
JOSEPH M. VERRIER,
Plaintiff,
v.

Case No:

2:14-cv-744-FtM-29CM

PETER PERRINO, Agent and
DIANE LAPAUL, Supervisor,
Defendants.
OPINION AND ORDER
This matter comes before the Court on defendants' Motion for
Summary Judgment (Doc. #147) filed on November 6, 2017.

Plaintiff

filed a Response (Doc. #149) on November 21, 2017.
I.
The undisputed facts are as follows:
Joseph Verrier (plaintiff or Verrier) is a Sex Offender
probationer following two convictions in the state of Wisconsin.
(Doc. #147-1, pp. 1-7.)
plaintiff

pled

no

Specifically, on February 24, 2010,

contest

to

count

1

“Child

Enticement

–

Prostitution” in violation of Wisconsin State Statute section
948.07(2) and count 6 attempt of “Child Enticement – Prostitution”
in

violation

of

Wisconsin

State

Statute

sections

939.32

and

948.07(2) in Outagamie County, case number 2009CF000232 (Outgamie
case).

(Id. at 1-4.)

On July 21, 2010, plaintiff pled no contest

to count 1 “Child Enticement – Sexual Contact” in violation of

Wisconsin State Statute section 948.07(1) in Manitowoc County,
case number 2009CF000153 (Manitowoc case). (Id. at 5-7.)

In the

Outagamie case, Plaintiff was sentenced to four years State Prison
with “Extended Supervision 6 years” for count 1 and five years
probation consecutive to count 1 for count 6. (Id. at 10.)
Manitowoc

case,

plaintiff

was

sentenced

In the

to

fourteen

years

“Special

Bulletin”

dated

probation. (Id.)
Plaintiff’s

State

of

Wisconsin

October 30, 2013 states the following:
•

“GPS REQUIRED? YES (2 STRIKES).” (Id. at 8.)

•

Approved on December 23, 2013, for interstate transfer
to Florida to reside with his mother and stepfather
located in Saint James City, Florida. (Id. at 9.)

•

Released from Oshkosh Correctional Institution to “Saint
James City in Florida” on February 18, 2014. (Id.)

•

“Mr. Verrier will be expected to obtain employment or
enroll in school upon release.” (Id. at 12.)

•

“It should be noted [VERRIER] used work telephone and
work computers when committing these offenses . . . .”
(Id. at 13.)

•

“Mr. Verrier has two separate convictions which require
registration with the Sex Offender Registry Program.
Therefore, he is an automatic SBN subject to Lifetime

- 2 -

GPS

monitoring

Verrier’s

while

current

residing

plan

is

to

in

Wisconsin.

reside

in

Mr.

Florida,

therefore, GPS is not required by law. However, should
the

plan

change,

or

should

Mr.

Verrier

return

to

Wisconsin, he will be placed on GPS and exclusion zones
will be entered where appropriate. GPS points will be
regularly reviewed to verify his whereabouts. Regardless
of where he lives, he will be subject to sex offender
rules

and

restricted

from

leaving

the

county

area

without agent approval. He will be limited in his use of
a computer or any device which can access the internet,
record or transmit images.” (Id.)
•

“Mr. Verrier will be supervised by Florida parole staff
through the interstate compact process and will be held
accountable

for

all

rules

of

the

Wisconsin

DOC

in

addition to any rules imposed by Florida corrections
staff.” (Id.)
•

“Mr. Verrier will be referred to Sex Offender Treatment
as he did not complete it while incarcerated. Other
treatment requirements will be assessed and discussed
throughout supervision.” (Id.)

•

“Mr. Verrier will be required to complete face-to-face
contact with local law enforcement upon his release and
for updates as needed.” (Id.)

- 3 -

•

“Mr. Verrier’s ex-wife, Phoebe Oakes, lives in Florida
with

their

Verrier

has

incarcerated

three

children.

become
and

She

obsessive

she

is

of

fearful

reported
the

that

children

for

their

Mr.

while

family.

Notification will be provided to Florida Department of
Corrections and to local law enforcement.” (Id.)
On November 13, 2013, pursuant to the Interstate Compact for
Adult Offender Supervision (“ICAOS”), plaintiff applied to have
his supervision transferred to the state of Florida.

(Id. at 15.)

Plaintiff’s application was received in Florida and defendant
Peter Perrino (Perrino) was assigned to his case.

(Id. at 16.)

On December 6, 2013, Perrino attempted to establish contact with
Verrier’s mother and stepfather at the Saint James City address
provided. (Id.)
was no one home.

Upon attempting contact, Perrino reported, “There
I left my card and a copy of the sex offender

conditions that could be placed on the DEF if he is accepted by
Florida.”

(Id.)

On December 31, 2013, after initially rejecting

the application because Perrino was unable to establish contact,
plaintiff’s application was accepted.

(Id. 16-24.)

Plaintiff’s application for interstate transfer to Florida
states:
•

“I understand that this transfer of supervision will be
subject to the rules of the Interstate Commission for
Adult Offender Supervision.” (Id. at 15, 21.)

- 4 -

•

“I understand that my supervision in another state may
be different than the supervision I would be subject to
in

this

state

differences

[Wisconsin].

that

may

exist

I

agree

because

to
I

accept

believe

any
that

transferring my supervision to Florida (receiving state)
will improve my chances for making a good adjustment in
the community.” (Id.)
•

“I will comply with the terms and conditions of my
supervision that have been placed on me, or that will be
placed on me by Wisconsin (sending state) and Florida
(receiving state).” (Id.)

•

“I understand that if I do not comply with all of the
terms and conditions that the sending state or the
receiving state, or both, placed on me, that it will be
considered a violation and I may be returned to the
sending state.” (Id.)

On

February

18,

2014,

plaintiff

departed

the

state

of

Wisconsin and on February 24, 2014 he arrived in the state of
Florida. (Id. at 29-30.)

On his date of arrival, plaintiff was:

Instructed/delivered
conditions
of
supervision;
notified offender of expectation while on supervision &
consequences of failing to comply with conditions of
supervision; reviewed grievance process, after hours
contact
procedure,
firearms/weapons/explosives,
criminal
registration,
drug
testing,
employer
notification, involvement in crime accounts; restoration
of civil rights & HIPAA. S [subject] reported to intake,
finger printed, photographed, and instructed to see CPO

- 5 -

today for reporting instructions and to be instructed to
SOP
[sex
offender
policy/procedure]
conditions.
[initials] GS
(Id. at 16.)

Perrier made an entry on the same day that:

Written monthly report receive for current month. DEF3
is an out of state case that is reporting for the first
time. DEF was instructed in Florida sex offender orders.
The A & B Form and GPS [“global position surveillance”]
Rules. The DEF was also hooked up on GPS. DEF was given
a list of sex offender treatment providers to pick one
to attend treatment. P. [initial for PERRINO].
(Id.)
monitor.

On February 24, 2014, plaintiff was also fitted with a GPS
(Id.

31.)

He

was

given

and

acknowledged

Florida’s

Standard Conditions of Supervision (id. at 32), Instructions to
Offenders (id. at 33), and Notice of Offender Responsibilities as
Required by Statute (id. at 34-35).
On April 10, 2014, plaintiff met with Perrino’s supervisor,
defendant Diane LaPaugh (LaPaugh). (Id. at 36.)

During this

meeting,

Florida

LaPaugh

re-instructed

plaintiff

on

the

and

Wisconsin orders “—note, he has a 9pm to 7am curfew, no alcohol,
no bar, etc. 5. Reinstr[uct] on no contact w/victim. . . , 6. needs
to obtain employment . . . DML [initials].” (Id.)

On June 23,

2014, Perrino conducted a home visit, during which plaintiff
complained about his GPS monitor going off. (Id.)

Perrino noted

that plaintiff complained that it was “unreasonable to get calls
from the monitoring center. He only mentioned two calls and that
was unreasonable. He was being a jerk about it in front of his

- 6 -

father and told him I was leaving now before something is sounded.
P [initials].”

(Id. at 37-38.)

On July 17, 2014, another GPS alert went off.

(Id. at 38.)

“Unable to connect” was noted and plaintiff was contacted by a
probation official, identified by initials BN. (Id.)

BN noted

“Contacted offender and instructed him to walk the unit outside.
Mother, also on the line with attitude. This officer had to explain
to her that her son could return to Wisconsin if she had a problem
with this officer doing his job. BN [initials].” (Id. at 38-39.)
On

August

12,

2014,

Perrino

conducted

a

home

visit

and

reported:
DEF and his parents at home. It was set up. The three
have been going through the Interstate Compact rule they
found online and have been looking for loop holes about
his probation. They have concentrated on EM [electronic
monitoring] and computer use. They made it sound like we
were picking on her son by putting him on EM and we were
keeping him from getting a job because we wouldn’t let
him use a computer. I told them I sent the conditions
that Florida would put on him if he came down here and
he agreed to follow them. I told them again if he doesn’t
like he could go back. They told I [sic] couldn’t send
him back unless he violated. They have too much time on
there [sic] hands. This is the second time they all three
have come at me with what they think they know. P
[initials].
(Id. at 40.)

On September 29, 2014, Perrino conducted a home

visit and noted “DEF at home. DEF advised that he has a court date
in family court about his wife not allowing him contact with his
children. It appears that I am going to be ordered to come to the
hearing and explain the probation orders. P [initials]” (Id. at

- 7 -

41.)

On October 28, 2014, Perrino made the following entry in

Verrier’s case file:
I was subpoenaed to testify in [sic] at a family court
hearing regarding the DEF and his ex-wife and being able
to see his children. After being crossed examined by
both parties I was excused from the court. I testified
on DEF’s orders from Wisconsin and Florida were being
inforced [sic]. The Judge did not rule on the motion,
which I am not sure what it was. I believe it was for
visitation. The Judge was to make a ruling later. P
[initials]
(Id. at 42, 44.)

Plaintiff asserts that during and after Perrino’s

testimony, Perrino made comments indicating he was angry that he
had to testify and threatening to send plaintiff back to Wisconsin.
(Doc. #149-1, pp. 75, 77.)
On October 28, 2014, following the Family Court hearing,
plaintiff’s ex-wife, Phoebe Oakes, sent an email to Ms. Donelson
at the Fort Myers Probation Office.

(Doc. #147-1, p. 46.)

Oakes wrote:
I am currently writing for advice and concern in
regards to Joseph Verrier who is my ex-husband and his
supervising parole officer Peter Perrino. Mr. Verrier
was released to Florida via interstate compact agreement
with WI back in February of this year. I do have a lot
of concerns in regards to my own children which he is
obsessed with. I did have a few telephonic conversations
with Mr Perrino who assured me that he would not b[e]
seeing the kids anytime soon and that he had a "bracelet"
and put our house in Charlotte county as well the th[e],
children's school on a do not go to zone or area. Upon
a recently family court case Mr Perrino stated under
oath that basically he doesn't know some of Mr Verrier's
restrictions and pretty much at this point Mr Verrier
i[s] running around as is he never did anything wrong
and appears to be calling the shots of his one probation.

- 8 -

Ms.

Th[e] Wisconsin court states he should be following all
their rules including Florida.
The areas I have concern with are contact with
minors (including his own), use of the Internet and
computer which apparently he's are [sic] already using
(this is how his Crimes which he was convicted of
started), congregating with other felons, and the fact
that he has not obtained employment to this date.
According to T[he] WI head supervisor even telephonic
conversation have to be supervised.
I appreciate you taking the time to listen to my
concerns and please advise since I am a concerned mother
and looking to protect my children and others as well.
(Id. at 46.)
On

October

30,

2014,

LaPaugh

wrote

the

following

in

plaintiff’s probation file:
Phoned offender and advised him that his conditions of
supervision are going to be enforced as imposed by the
court w/o agent/probation officers modification. IE. He
is not to have contact with anyone under the age of 18
years, as well as the victim, no computer use or access,
and is not to communicate with anyone under supervision
or any reg. sex offender. We discussed at length that
Wisconsin probation may very well give the agent/P.O.
the decretion [sic] to modify conditions, but that we
are no longer going to do so. Although he continued to
debate the issue, he stated that he understood and would
comply. Although stated that he may contact his P.O. in
Wisconsin in an attempt to get his conditions changed by
the court. DML [initials]
(Id. at 42-43.)

Then on October 31, 2014, LaPaugh wrote to

plaintiff’s ex-wife via email, stating:
Please be advised that your below e-mail was
submitted to me for response. I have reviewed offender
Verrier's file and have discussed his case with Officer
Perrino. Be assured that Officer Perrino is aware and
will
enforce
offender
Verrier's
conditions
of
supervision.
In regard to your areas of concern,
effective immediately: Absent a specific court order
from the sentencing Court in Wisconsin, offender Verrier

- 9 -

is not to have contact with anyone under the age of 18.
Absent a specific court order from the sentencing Court
in Wisconsin, offender Verrier is not allowed to
communicate with anyone under supervision or any
registered sex offender, with the exception of those
present in his treatment sessions.
Lastly, absent a
specific court order from the sentencing Court in
Wisconsin, offender Verrier is not to have computer or
internet or an e-mail address.
His Wisconsin
Rules/Conditions of Supervision allow the "agent" or
probation officer to modify such conditions; however,
the Florida Department of Corrections is choosing not to
do so.
I have made contact with offender, Joseph Verrier
this date and instructed him to comply with the above
listed conditions.
If you have any further questions or concerns, do
not hesitate to contact me.
(Id. at 45-46.)

On November 6, 2014, Verrier wrote in his November

Supervision Report “supervisor stopped all activities req[uiring]
agent approval after 10/28 court hearing.”

(Id. at 47.)

Under

the section titled “Action Steps I Will Take This Month,” he wrote:
“Uncertain – seeking Wisconsin input” and “unsure what I am allowed
to do.”

(Id.)

On December 19, 2014, the Family Court sent correspondence to
the attorneys regarding the October 28, 2014 in the matter stating:
As to the Contempt motion, the Former Wife would
not allow the Former Husband parenting time with the
children. During the Former Husband's incarceration, the
parties agreed to a parenting plan in anticipation of
his release. However, upon his release, the Former Wife
would not allow any contact between the Former Husband
and the children due to the terms of the Former Husband's
probation which was that he was to have no contact with
any children.
The Court finds that there was some confusion
regarding the Former Husband's “no children contact”
probation requirement and the Former Wife was under the

- 10 -

impression that he was not to have any contact. The
Former Husband's probation got transferred to Lee County
and that probation officer initially verified the Former
Wife's understanding of the probation requirement that
he should not be allowed contact with the parties' minor
children as it would be a violation of his probation.
However, once the probation officer was made aware of
Dr. Gunder's results, his understanding of the probation
requirement changed in that he said that the Former
Husband's contact with the parties' minor children would
not be in violation of his probation. The Court finds
that this was not a willful contempt on the Former Wife's
part, and therefore the Motion for Contempt is denied.
(Id. at 51.)
On December 23, 2014, plaintiff left his home without his GPS
monitor. (Doc. #147-2, p. 9.)

On December 24, 2014, plaintiff was

arrested

bracelet

for

“a

three

hour

gone.

VOP

[violation

of

probation] sent to Wisconsin. P [initials].” (Id. at 8.)
On March 17, 2015, Perrino called plaintiff regarding a
meeting plaintiff was supposed to be having with his children.
(Id. at 11.)

Perrino made the following note regarding the phone

call:
I called the DEF because I was told that the DEF was
having a meeting with his children this week. I asked
the DEF if he was meeting with his children this wek
(sic) and he advised that the children are meeting with
the family court ordered counsel Nikki Haggart. I
reminded him the DEF that he is not to have contact with
his children or any other minor per his Florida orders.
He then went on about his law suit against me and the
Department for not following Wisconsins [sic] orders. I
did not get into that with him. I just reminded him not
to have any contact. P [initials].
(Id.)

- 11 -

On October 30, 2015, LaPaugh writes:
After submitting e-mails to Officer Perrino concerning
approval to trick or treat w/his female friend and her
young daughter, he left a phone message for me to call
him.
I returned a phone call w/o an answer and left
message.
He called back and continued to challenge
asking for a statute and where he could find it in
writing. Clearly said that he is not to participate in
such Halloween activities, due to the fact that he is to
continue to have no contact with minors. Then asked if
he could go to a Halloween party at the home of his
female friend’s [sic] where there will be children.
Told him absolutely not. Stated that his G/friend is
there to supervise.
Told him that she is not
supervising children that are not here and he is only
approved to have supervised w/his own children and the
girlfriend’s daughter. Throughout the conversation he
stated that he wanted to have his questions answered so
that if he could write it up in a law suite [sic]. He
stated that if he is not to be around minors why can he
go to the farm market.
Explained that a child’s
activity is obviously different that going to a grocery
store or church. Noted that he was made aware that he
is not to participate in Halloween activities and not to
be in contact with minors. DML [initials].
(Id. at 65.)
On

January

8,

2016,

plaintiff’s

female

friend,

Andrea

Hendrickson, wrote an email to LaPaugh, stating:
Today I found some very disturbing emails in my business
partner's account. He is a registered sex offender here
in Lee County, his name is Joseph (Jay) Verrier. As I
stated we are business partners and he checked his gmail
from my iPhone.
Later I was attempting to check my
email from my iPhone and his account was still open in
the app.
I took screenshots and I've included some.
There are a number of others. I'm not sure if this is
an appropriate method to report this, but I'm at a loss
as to how to proceed.
I believe the nature of his
offenses forbid the use computers in this manner. Thank
you for your anticipated concern.

- 12 -

(Id. at 66.)

On January 22, 2016, Perrino wrote, “I sent a

response to CAR from Wisconsin.

I also asked them to advised

[sic] which of the three probation that DEF should be following.
They are all different.”
On

March

9,

2016,

(Id. at 69.)
a

warrantless

search

of

plaintiff’s

residence was conducted by Perrino, LaPaugh, Bradley Rouskey, a
computer specialist, and local sheriff officers. (Id. at 72.)
Pornographic materials were found on several laptops and other
electronic devices and plaintiff was arrested by the Lee County
Sheriff’s Department and transported to jail.

(Id.)

Plaintiff’s Therapist, Dr. Roger Gruder, wrote a letter on
March 14, 2016 stating:
As you know a risk assessment was completed in June of
2014, a portion of which pertained to internet access.
It was recommended that [VERRIER] be granted permission
to be on the internet for employment purposes,
furthering his education and electronic mail only. Mr.
Verrier chose to violate those parameters. Therefore,
should he be released, we will no longer provide
services.
(Id. at 74.)

On March 16, 2016, LaPaugh noted:

Tim Strickland (Interstate Compact) phoned me back in
regard to my concerns about Wisconsin’s response to VOP
[violation of probation] ‘continue to supervise.’ . . .
[Strickland] stated we of course could not force
Wisconsin to take the offender back, but that we could
apply sanctions . . . [I]f [VERRIER] is not willing to
sign new conditions . . . that he can return to
Wisconsin. If violates again, it will be his 3rd
violation and Wisconsin will have to take him back. DML
[initials].
(Id. at 72, 75.)

On March 28, 2016, LaPaugh wrote:

- 13 -

Judge Steinbeck was told that Judges in the state most
(sic) order Def’s held for 30 days. So she ordered that
the Def be held until 4/7/16 and the first appearance
Judge should revisit the hold on that day. P [initials].
Officer Reddick from the Lee County Jail phoned to advise
that LCSO received a teletype that stated – do not hold
subject as Wisconsin Department of Corrections will not
extradite. I told her that such release requests go
through the ICOTS system. She was aware of this and
stated that she is going to make some phone calls . . .
. [Officer Reddick] made a call to Wisconsin and was
told that she should have not received the teletype. DL
[initials].
(Id. at 76.)
On March 25, 2016, LaPaugh sent an email to Bradley Rouskey
and Perrino stating that plaintiff would be given an opportunity
for a probable cause hearing in Florida, and if probable cause is
found, he will be held in custody with the intent that Wisconsin
will retake him. (Id. at 77.)

A probable cause hearing was held

on April 20, 2016 by Hearing Officer Pamela Carwise of the Florida
Commission on Offender Review. (Id. at 90-92.) The day prior to
the probable cause hearing, Wisconsin issued an order to Florida
to

return

plaintiff

to

Wisconsin.

(Id.)

On

May

7,

2016,

plaintiff returned to Wisconsin with a Revocation Summary written
by Wisconsin Agent, Ryan Hartfield. (Id. at 78-82.)

On May 18,

2016, in lieu of returning to prison, plaintiff accepted an offer
for Alternative to Revocation treatment plan where he agreed to
participate in sex offender treatment. (Id. at 80.) He completed
the Alternative to Revocation treatment plan on September 28, 2016
and returned to Florida on October 24, 2016. (Id. at 80, 83.)

- 14 -

On December 29, 2014, plaintiff brought this action against
Peter Perrino and Diane LaPaugh. (Doc. #1.)

Amendments to the

initial Complaint were made, and on August 4, 2016, this Court
entered an Order on defendants Motion to Dismiss plaintiff’s Third
Amended Complaint.

(Doc. #46.)

The Order dismissed Count I as

to the defendants in their individual capacities as it relates to
defendants’
probation

arrest

terms,

of

plaintiff

denied

the

for

motion

allegedly

to

dismiss

violating

his

Count

and

II,

dismissed Counts III and IV as to defendants in their individual
capacities. (Id.)

Although the Court allowed plaintiff to refile

a Fourth Amended Complaint, plaintiff did not avail himself of
this opportunity, and defendants filed an Answer and Affirmative
defense on August 16, 2016. (Doc. #48.)

On November 6, 2017,

defendants Perrino and LaPaugh filed a Motion for Summary Judgment
as to all remaining counts (Doc. #147), and on November 21, 2017,
plaintiff filed a Response to plaintiff’s Motion for Summary
Judgment (Doc. #149).
II.
Summary

judgment

is

appropriate

only

when

the

Court

is

satisfied that “there is no genuine issue as to any material fact
and that the moving party is entitled to judgment as a matter of
law.”

Fed. R. Civ. P. 56(a).

“An issue of fact is ‘genuine’ if

the record taken as a whole could lead a rational trier of fact to
find for the nonmoving party.”

Baby Buddies, Inc. v. Toys “R” Us,

- 15 -

Inc., 611 F.3d 1308, 1314 (11th Cir. 2010).

A fact is “material”

if it may affect the outcome of the suit under governing law.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
In ruling on a motion for summary judgment, the Court views
all evidence and draws all reasonable inferences in favor of the
non-moving party.

Scott v. Harris, 550 U.S. 372, 380 (2007); Tana

v. Dantanna’s, 611 F.3d 767, 772 (11th Cir. 2010).

However, “if

reasonable minds might differ on the inferences arising from
undisputed facts, then the court should deny summary judgment.”
St. Charles Foods, Inc. v. Am.’s Favorite Chicken Co., 198 F.3d
815, 819 (11th Cir. 1999) (quoting Warrior Tombigbee Transp. Co.
v. M/V Nan Fung, 695 F.2d 1294, 1296 (11th Cir. 1983) (finding
summary judgment “may be inappropriate even where the parties agree
on the basic facts, but disagree about the factual inferences that
should be drawn from these facts”)).

“If a reasonable fact finder

evaluating the evidence could draw more than one inference from
the facts, and if that inference introduces a genuine issue of
material fact, then the court should not grant summary judgment.”
Allen v. Bd. of Pub. Educ., 495 F.3d 1306, 1315 (11th Cir. 2007).
A pleading drafted by a party proceeding pro se, like the
Third Amended Complaint at issue here, is held to a less stringent
standard than one drafted by an attorney, and the Court will
construe the allegations contained therein liberally.

Jones v.

Fla. Parole Comm'n, 787 F.3d 1105, 1107 (11th Cir. 2015). “[A] pro

- 16 -

se litigant does not escape the essential burden under summary
judgment standards of establishing that there is a genuine issue
as to a fact material to his case in order to avert summary
judgment.” Brown v. Crawford, 906 F.2d 667, 670 (11th Cir. 1990).
“This liberal construction, however, does not give a court license
to serve as de facto counsel for a party, or to rewrite an otherwise
deficient pleading in order to sustain an action.” Hickman v.
Hickman, 563 F. App’x 742, 743 (11th Cir. 2014) (internal quotation
marks and citations omitted).

Pro se parties are still required

to conform to the procedural rules. Id.
III.
A. Count I: Retaliation
Count I of plaintiff’s Third Amended Complaint alleges that
defendants

retaliated

against

plaintiff

for

constitutional right to attend a court hearing.
53.)

exercising

his

(Doc. #35, ¶¶ 20-

Defendants assert they are entitled to summary judgment as

to Count I because (1) plaintiff’s visitation and communication
rights

with

his

children

are

subject

to

the

jurisdiction

of

Florida’s Family Court, and not the defendants, (2) plaintiff has
failed

to

show

the

protected

conduct

was

a

substantial

or

motivating factor behind the retaliatory misconduct, (3) there
were

never

volunteer,

any
(4)

constraints

placed

the

effect

adverse

on
is

plaintiff’s
not

of

ability

to

constitutional

dimension and is instead plaintiff’s disagreement with the way

- 17 -

Florida supervises his probation, and (5) plaintiff’s supervision
was modified for a proper purpose and not discipline or retaliate
against him.

(Doc. #147, pp. 14-19.)

In order to establish a retaliation claim, “a plaintiff must
establish first, that his speech or act was constitutionally
protected;

second,

that

the

defendant’s retaliatory conduct

adversely affected the protected speech; and third, that there is
a

causal

connection

between

adverse effect on speech.”

the retaliatory actions

and

the

Bennett v. Hendrix, 423 F.3d 1247,

1250 (11th Cir. 2005) (citations omitted).

“Once the plaintiff

establishes that the protected conduct was a motivating factor
behind the harm, the burden of production shifts to the defendant.”
Smith v. Fla. Dep’t of Corr., 713 F.3d 1059, 1063 (11th Cir. 2013
(citation

omitted).

“The

defendant

can

prevail

on

summary

judgment if it can show it would have taken the same action in the
absence of the protected activity.” Id. (citation omitted).
Defendants first assert that they are entitled to judgment as
a

matter

of

law

as

to

plaintiff’s

retaliation

claim

because

visitation rights and communications with plaintiff’s children are
subject to the jurisdiction of Florida’s Family Court and not
defendants.

(Doc. #147, pp. 15-16.)

It is clear that issues of

visitation and communication between a parent and their child are
within the jurisdiction of the Family Court.
not dispositive of the issue at hand.

- 18 -

This, however, is

First, plaintiff is alleging

that other rights were also rescinded in retaliation of him calling
Agent Perrino to testify.

Further, although the Family Court does

determine matters such as visitation and communication with one’s
children, it is clear that probation conditions may also limit an
individual’s right to be in contact with children.
Defendants also assert that plaintiff has not established the
causal

connection

between

retaliatory conduct.

his

protected

activity

(Doc. #147, pp. 17-18.)

and

the

To support his

claim that the defendants’ actions were retaliatory, plaintiff’s
Third Amended Complaint points to statements made by Perrino
indicating that he was mad that he had to testify in court and
threatening to send plaintiff back to Wisconsin for challenging
the

Department

of

Corrections’

authority,

and

relies

on

the

temporal proximity between the court testimony and the rescinded
rights.
attached

(Doc. #35, pp. 4-11.)
to

allegations

the
is

an

Third

The only summary judgment evidence

Amended

undated

letter

Complaint
authored

to
by

support

these

plaintiff

and

addressed to “Agent Peter Perrino’s Supervisor.” (Docs. ##35-13,
35-14.)

In

his

Response

to

defendants’

Motion

for

Summary

Judgment, plaintiff reiterates these assertions, and in support
attaches an Affidavit based on his personal knowledge (Doc. #1491, pp. 72-73), an Affidavit of Nancy McGuire (id. at 74-75), 1 and

1

It appears that Nancy McGuire is plaintiff’s mother. (Doc.
#149-1, p. 79.)

- 19 -

an Affidavit of John Geib (id. at 76-77). 2

These Affidavits show

that plaintiff was told he could no longer volunteer at All Souls
Church, Perrino told plaintiff that if he challenged his probation
rules and conditions he would be returned to Wisconsin, and that
Perrino appeared angry and made statements indicating that he was
upset for being involved in the Family Court proceeding. (id. at
73, 75, 77.)
To rebut plaintiff’s claim that the protected conduct was a
motivating factor in the rescission of his previously granted
conditions,

defendants

assert

that

LaPaugh,

and

not

Perrino,

revoked the modifications made by Perrino after being contacted by
plaintiff’s

ex-wife

regarding

her

concerns

about

plaintiff’s

supervision and certain restrictions that were not being enforced,
and that LaPaugh felt the need to discuss this with Verrier because
Perrino had been allowing modifications to his conditions.
#147, p. 18.)

(Doc.

In support, they attach an email dated October 28,

2014 from plaintiff’s ex-wife to the department of corrections
where she expresses her concern regarding plaintiff’s conditions
of probation (Doc. #147-1, p. 46), an Affidavit of LaPaugh that
she informed plaintiff that the modifications previously allowed
by Perrino would be rescinded as they were not approved by LaPaugh
and may be in violation of Wisconsin’s conditions of supervision

2

It appears that John Geib is plaintiff’s stepfather. (Id.)

- 20 -

(Doc. #147-2, pp. 50-51), an Affidavit of Peter Perrino (id. at
52-54), and an Affidavit of Ryan Hartfield (id. at 55-57).
The Court finds that plaintiff has failed to establish that
invoking his right to call the probation officer to testify at a
Family Court hearing 3 was a substantial or motivating factor in
the probation officer’s supervisor revoking the modifications to
his

probation

conditions

that

were

previously

allowed.

The

evidence presented that Perrino made comments that he was not happy
with the fact that he was involved with the Family Court hearing
does support potential retaliation by Perrino.

But the evidence

establishes

who

that

modifications.

Perrino

was

not

the

person

revoked

the

It was his supervisor, LaPaugh, who revoked the

modifications following the hearing.

There is no evidence that

LaPaugh did this in retaliation for Perrino being called to testify
other than the temporal proximity.

Rather, the evidence is that

LaPaugh did this in response to the uncertainty regarding the
potential conflict between Wisconsin’s conditions and the Family
Court’s visitation ruling, and following plaintiff’s ex-wife’s

3

There is in fact no evidence that plaintiff was the one who
called Perrino to testify and not plaintiff’s ex-wife. (See Doc.
#147-1, p. 44.) Defendants have not raised this argument in their
Motion for Summary Judgment. There is, however, a note made by
Perrino indicating that he learned from plaintiff that he was going
to be called to testify at the Family Court proceeding. (Id. at
41.)

- 21 -

email and the subsequent re-examination of plaintiff’s conditions
of probation.
Accordingly, the Court finds that defendants are entitled to
entry of summary judgment as to Count I because plaintiff has
failed to establish that the alleged retaliatory conduct was caused
by his invoking a constitutional right.
B. Count II: Intentional Discrimination in Violation of Equal
Protection Clause
Defendants assert that they are entitled to entry of summary
judgment as to Count II because (1) plaintiff cannot show that he
was treated differently than others similarly situated, and (2)
plaintiff fails to establish that Perrino and LaPaugh applied
statutes and rules for the purpose of discriminating against him.
(Doc. #147, pp. 19-20.)
The Fourteenth Amendment prohibits states from “deny[ing] to
any
of

person
the

within

laws.”

its

jurisdiction

the

U.S. Const. amend XIV, § 1.

equal

protection

The “purpose of the

equal protection clause of the Fourteenth Amendment is to secure
every

person

intentional

within
and

the

State’s

jurisdiction

against

arbitrary discrimination, whether occasioned by

express terms of a statute or by its improper execution through
duly constituted agents.”

Village of Willowbrook v. Olech, 528

U.S. 562, 564 (2000) (quoting Sioux City Bridge Co. v. Dakota
County, 260 U.S. 441, 445 (1923)).

- 22 -

To prevail on an equal

protection claim, plaintiff “must show [that he was] intentionally
treated differently from others who were ‘similarly situated’ and
that there is no rational basis for the difference in treatment.”
Grider v. City of Auburn, 618 F.3d 1240, 1263-64 (11th Cir. 2010)
(citing

Olech,

528

U.S.

at

564).

The

Eleventh

Circuit

recognizes claims for intentional discrimination in violation of
the

equal

he

is

protection
part

disparately
“class

of

of

and

clause
a

where

class

one” theory.

a

plaintiff

that

plaintiff

is

alleges
being

adequately

sets

See Olech, 528 U.S. at 565.

of one’ equal protection claim
against

where

does

not

allege

that

treated
forth

a

“A ‘class

discrimination

protected class, but rather asserts that the plaintiff

has been intentionally treated differently from others similarly
situated and
difference

that
in

there

is

treatment.”

no

rational

Leib

v.

basis

for

the

Hillsborough

Cty.

Pub.

Transp. Comm’n, 558 F.3d 1301, 1306 (11th Cir. 2009) (citation
omitted).
Defendants first assert that plaintiff cannot and has not
shown

that

he

was

treated

differently

situated. (Doc. #46, p. 14.)

than

others

The Court agrees.

similarly

Plaintiff has

failed to identify one similarly situated probationer who has been
treated differently than he has.
broad

assertions

similarly

that

situated

he

is

Instead, he relies on vague,

being

probationers.

treated

Therefore,

- 23 -

differently
plaintiff’s

than
claim

necessarily fails because he has not shown that he was treated
differently from other similarly situated probationers.

Sweet v.

Dept. of Corr., 467 F.3d 1311, 1319 (11th Cir. 2006).
Further, plaintiff points to Florida statutes that impose
mandatory

conditions

Plaintiff

asserts

of

that

probation
this

for

specific

certain
statutory

sex

offenses.

condition

is

limited to offenses committed on or after May 26, 2010, therefore
imposing this condition on him results in unequal treatment because
it is not imposed on similarly situated probationers who committed
offenses before May 26, 2010.

(Id.)

First of all, while the statute pointed to includes mandatory
conditions for individuals who commit specified sexual offenses,
there is nothing that prevents these special conditions from being
imposed for other crimes or for sexual offenses committed before
the specified date.

Secondly, looking to the 2009 versions of

some of these statutes, it is clear that these conditions would
have been applied to plaintiff would he have been in Florida.

See

Fla. Stat. § 948.30 (1)(f) (2009) (prohibiting volunteering or
working where children regular congregate).

Lastly, some of these

conditions were imposed by the sending state and plaintiff agreed
to abide by sending state and receiving state conditions as a
condition of transfer to Florida.
15.)

- 24 -

(Doc. #147-1, pp. 2, 6, 13,

Accordingly, the Court finds that defendants are entitled to
summary judgment as a matter of law and grants defendants’ Motion
for Summary Judgment as to Count II.
C. Count III: Unconstitutionality of Fla. Stat. § 948.30(1)(e)
Count

III

essentially

asserts

a

claim

challenging

the

constitutionality of Florida Statute section 948.30(1)(e) as being
void for vagueness.

(Doc. #35, pp. 17-24; see also Doc. #46, pp.

17-18 & n.4.)
Section 948.30(1)(e) provides:
Conditions imposed pursuant to this section do not
require oral pronouncement at the time of sentencing and
shall be considered standard conditions of probation or
community control for offenders specified in this
section.
(1) Effective for probationers or community controllees
whose crime was committed on or after October 1, 1995,
and who are placed under supervision for violation
of chapter 794, s. 800.04, s. 827.071, s. 847.0135(5),
or s. 847.0145, the court must impose the following
conditions in addition to all other standard and special
conditions imposed:
(e) If the victim was under the age of 18, a prohibition
on contact with a child under the age of 18 except as
provided in this paragraph. The court may approve
supervised contact with a child under the age of 18 if
the approval is based upon a recommendation for contact
issued by a qualified practitioner who is basing the
recommendation on a risk assessment. Further, the sex
offender must be currently enrolled in or have
successfully completed a sex offender therapy program.
The court may not grant supervised contact with a child
if the contact is not recommended by a qualified
practitioner and may deny supervised contact with a
child at any time. When considering whether to approve
supervised contact with a child, the court must review
and consider the following:

- 25 -

1.
A risk assessment completed by a qualified
practitioner. The qualified practitioner must prepare a
written report that must include the findings of the
assessment and address each of the following components:
a. The sex offender's current legal status;
b. The sex offender's history of adult charges with
apparent sexual motivation;
c. The sex offender's history of adult charges
without apparent sexual motivation;
d. The sex offender's history of juvenile charges,
whenever available;
e. The sex offender's offender treatment history,
including consultations with the sex offender's
treating, or most recent treating, therapist;
f. The sex offender's current mental status;
g. The sex offender's mental health and substance
abuse treatment history as provided by the
Department of Corrections;
h.
The
sex
offender's
personal,
social,
educational, and work history;
i. The results of current psychological testing of
the sex offender if determined necessary by the
qualified practitioner;
j. A description of the proposed contact, including
the location, frequency, duration, and supervisory
arrangement;
k. The child's preference and relative comfort
level
with
the
proposed
contact,
when
age
appropriate;
l. The parent's or legal guardian's preference
regarding the proposed contact; and
m. The qualified practitioner's opinion, along with
the basis for that opinion, as to whether the
proposed contact would likely pose significant risk
of emotional or physical harm to the child.
The written report of the assessment must be given to
the court . . . .
Fla. Stat. § 948.30(1)(e).
Defendants assert that they are entitled to summary judgment
as to Count III because (1) plaintiff has failed to provide notice

- 26 -

to the attorney general as required by the Florida Rules of Civil
Procedure, (2) defendants are not the proper parties for this
constitutional challenge, and (3) the statute is not vague. (Doc.
#147, pp. 20-22.)
As to defendants’ first argument, plaintiff has brought this
action under federal law in a federal court.

Therefore there is

no reason why a state rule of civil procedure would be applicable.
Further, the federal counterpart is set forth in Federal Rule of
Civil Procedure 5.1 and does not require any further notice or
service. 4
As to defendants’ second argument, as previously stated by
this Court, when challenging the constitutionality of a rule of
law,

the

official

plaintiff
or

agency

must

bring

the

responsible

unconstitutional scheme.”

for

“action

against

enforcing

the

the

state

allegedly

Women’s Emergency Network v. Bush, 214

F. Supp. 2d 1316, 1317 (S.D. Fla. 2002) (citing ACLU v. The Fla.
Bar, 999 F.2d 1486, 1490-91 (11th Cir. 1993)).

The statute

challenged as unconstitutional in Count III requires the court to
impose certain conditions of probation for certain offenders.
Fla.

Stat.

§

948.30(1)(e).

Here,

4

the

only

two

remaining

Rule 5.1 requires notice of a constitutional question and
service of the notice and paper where “the parties do not include
the state, one of its agencies, or one of its officers or employees
in an official capacity.”
Fed. R. Civ. P. 5.1(a).
Here, the
defendants are sued, at least in part, as agents of the Florida
Department of Corrections. (Doc. #35.)

- 27 -

defendants for Count III are Perrino and LaPaugh in their official
capacities.

Perrino is an Agent with the Florida Department of

Corrections, and LaPaugh is his supervisor.

Therefore, the court

imposing the probation conditions is the one enforcing the statute,
and not defendants.

However, even viewing this requirement more

liberally, and extending it to the defendants actually enforcing
the conditions once the court imposes the mandatory conditions as
required by the statute, the Court still does not find this statute
void for vagueness.
Plaintiff contends that the condition regarding contact with
minors is vague because it may apply to casual or unavoidable
contact with minors. (Doc. #35, pp. 17-24.)

“This argument is one

that has a long and familiar history in the courts; associational
conditions placed upon parolees and probationers are commonplace
and

have

frequently

been

challenged

as

overly

broad

or vague because they potentially extend to casual encounters.”
United States v. Loy, 237 F.3d 251, 268-69 (3d Cir. 2001) (citation
omitted). It has been held that these “associational conditions do
not extend to casual or chance meetings.”
Arciniega v. Freeman, 404 U.S. 4 (1971));

Id. at 269 (citing

United States v. Paul,

274 F.3d 155, 165-67 (finding restrictions on “contact with minors
[were]

neither

United

States

impermissibly
v.

Bee,

162

vague
F.3d

nor

1232,

unreasonably
1235

(9th

broad”);

Cir.

1998)

(upholding conditions prohibiting contact with children under the

- 28 -

age of 18 unless approved by probation officer and prohibiting
loitering “within 100 feet of school yards, parks, playgrounds,
arcades, or other places primarily used by children under the age
of 18”).

In accordance with these similar cases, the Court finds

that statute requiring a mandatory condition restricting Verrier’s
contact with minors is not unconstitutionally vague.

Accordingly,

defendants’ Motion for Summary Judgment as to Count III is granted.
D. Count IV: Unconstitutionality of Fla. Stat. § 948.03(1)(d)
Count

IV

essentially

asserts

a

claim

challenging

the

constitutionality of Florida Statute section 948.03(1)(d) as being
void for vagueness.

(Doc. #35, pp. 24-27; see also Doc. #46, pp.

17-18 & n.4.)
Section 948.03(1)(d) provides:
(1) The court shall determine the terms and conditions
of probation. Conditions specified in this section do
not require oral pronouncement at the time of sentencing
and may be considered standard conditions of probation.
These conditions may include among them the following,
that the probationer or offender in community control
shall:
. . .
(d) Remain within a specified place
. . . .
Fla. Stat. § 948.03(1)(d).
As with Count III, the Court finds that this statute is aimed
at the court, and the defendants, as members of the Florida
Department of Corrections, are not responsible for making sure the

- 29 -

court does or does not include these conditions.

However, as with

Count III, even reading the “enforcer” requirement liberally, the
Court

still

finds

that

section

948.03(1)(d)

is

not

void

for

vagueness, at least as it applies to plaintiff.
The statute at issue does not directly apply to plaintiff.
Instead,

it

applies

to

the

court

imposing

the

conditions

of

probation and provides for additional conditions that may be
imposed.

It instructs the judge that he or she may require, as a

condition of probation, that the probationer remain within a
specified area, i.e. the county.

Therefore, to remain in a

specified place is not the actual condition that has been imposed
on plaintiff.

Plaintiff has even admitted in his pleadings, and

elsewhere, that he was required to remain within a specified
county.
Further “probationers are often subject to limitations to
which ordinary citizens are free.” United States v. Cothran, 855
F.2d 749, 751 (11th Cir. 1988). “Such limitations are permitted
because probationers

have

been

convicted

of

crimes

and

have

thereby given the state a compelling interest in limiting their
liberty in order to effectuate their rehabilitation and to protect
society.” Id. (quoting Owens v. Kelley, 681 F.2d 1362, 1367 (11th
Cir. 1982)).
that

he

Here, the limitation actually imposed by plaintiff—

remain

within

his

county

of

residence

absent

agent

approval—is reasonable in order to effectuate his rehabilitation

- 30 -

and to enable adequate probation supervision on him.

It is this

actual restriction and not the statute that informs plaintiff where
he can or cannot go.

Even as such, residency restrictions have

been upheld as constitutional.

See id. at 751-53. 5

Accordingly, the Court grants defendants’ Motion for Summary
Judgment as to Count IV.
Accordingly, it is hereby
ORDERED AND ADJUDGED:
Defendants P. Perrino and D. LaPaugh’s Motion for Summary
Judgment (Doc. #147) is GRANTED.

The Clerk is directed to enter

judgment in favor of defendants and against plaintiff as to Counts
I, II, III, and IV, terminate all pending motions and deadlines,
and close the file.
DONE and ORDERED at Fort Myers, Florida, this __18th__ day of
January, 2018.

Copies:
Parties of Record

5

The Court notes that Congress has imposed restrictions with
similar “specified place” language which has to date not been held
unconstitutional.
See 18 U.S.C. § 3563(b)(13) (“The court may
provide
that
.
.
.
the
defendant
.
.
.
reside
in
a specified place or
area,
or
refrain
from
residing
in
a specified place or area[.]” ).

- 31 -