UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA FORT MYERS DIVISION

DANNY E. BROWN, SYLVESTER BUTLER, )

KENNETH CAUDILL, SAMMY J. DOUSE,

)

WILLIE ENGLISH, SIDNEY EVERETT,

)

KELVIN FRAZIER, MORRIS J. GILBERT,

)

JIJUAN T. HAGANS, TROY D. HALL,

)

BENJAMIN LAFLOWER, CURT MASSIE,

)

ANTONIO J. McCLOUD, LAMAR A. MIFFIN, )

MICHAEL L. MONTGOMERY, KUNTA

)

PORTER, ISSAC SHARPE, SAMUEL

)

STROTHER, JEREMIAH THOMAS, EUGENE )

E. ULRATH, GLENN WHEELER and

)

REGINALD WILLIAMS, individually, and on )

behalf of a Class of all persons similarly situated, )

)

Plaintiffs,

)

)

vs.

)

)

JAMES V. CROSBY, Jr., in his official capacity )

as Secretary, Florida Department of Corrections; )

GERALD H. ABDUL-WASI, in his official

)

capacity as Inspector General, Florida Department )

of Corrections; JOSEPH THOMPSON, in his

)

official as Warden, Florida State Prison,

)

CHESTER LAMBDIN, in his official as Warden, )

Charlotte Correctional Institution, JOSEPH

)

PETROVSKY, in his official as Warden, Santa )

Rosa Correctional Institution, and WENDELL )

WHITEHURST, in his official capacity as

)

Warden, Washington Correctional Institution, )

)

Defendants.

)

__________________________________________)

CASE NO.

COMPLAINT

CLASS ACTION — INJUNCTIVE RELIEF

PRELIMINARY STATEMENT 1. Plaintiffs, DANNY E. BROWN, SYLVESTER BUTLER, KENNETH CAUDILL, SAMMY J. DOUSE, WILLIE ENGLISH, SIDNEY EVERETT, KELVIN FRAZIER, MORRIS J. GILBERT, JIJUAN T. HAGANS, TROY D. HALL, BENJAMIN LAFLOWER, CURT MASSIE, ANTONIO J. McCLOUD, LAMAR A. MIFFIN, MICHAEL L. MONTGOMERY, KUNTA PORTER, ISSAC SHARPE, SAMUEL STROTHER, JEREMIAH THOMAS, EUGENE E. ULRATH, GLENN WHEELER and REGINALD WILLIAMS, individually, and on behalf of a Class of all persons similarly situated, all of whom are prisoners in the custody of the Florida Department of Corrections, and all of whom allege they have been the victims of unjustified or excessive use of chemical agents by Florida Department of Corrections employees, seek declaratory and injunctive relief to enforce their right to be free from cruel and unusual punishment, as secured to them by the Eighth and Fourteenth Amendments to the United States Constitution and 42 U.S.C. § 1983. 2. The defendants have violated Plaintiffs’ right to be free from cruel and unusual punishment by using chemical agents, including pepper spray and tear gas, maliciously and sadistically for the very purpose of causing harm and not in a good-faith effort to restore order or maintain discipline or for any other legitimate penological reason. 3. The named Plaintiffs, on behalf of themselves and on behalf of a class of similarly situated individuals, seek a declaratory judgment that the policies, practices and customs of the Defendants concerning the use of chemical agents violate the Eighth and Fourteenth Amendments to the Constitution of the United States of America, and corresponding injunctive
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relief requiring the Defendants to cease their unlawful conduct and to implement measures to prevent its continuation.
JURISDICTION 4. Jurisdiction of this Court is invoked pursuant to 28 U.S.C. §1331 as this action arises under the Constitution and laws of the United States, and pursuant to 28 U.S.C. § 1343(a)(3) as this action seeks redress for civil rights violations under 42 U.S.C. § 1983. 5. This Court has jurisdiction over claims seeking declaratory and injunctive relief pursuant to 28 U.S.C. §§ 2201 and 2202 and Rule 57 of the Federal Rules of Civil Procedure. 6. The Plaintiffs' claims for attorneys' fees and costs is predicated upon 42 U.S.C. § 1988, which authorizes the award of attorneys' fees and costs to prevailing Plaintiffs in actions brought pursuant to 42 U.S.C. § 1983.
VENUE 7. Venue is proper in this District under 28 U.S.C. § 1391(b) because at least one of the defendants resides in this District and a substantial number of the events and omissions giving rise to Plaintiffs' claims occurred in this District.
PARTIES 8. Plaintiff Danny E. Brown at all times material to this action, and currently, is incarcerated at Santa Rosa Correctional Institution, Santa Rosa County, Florida. 9. Plaintiff Sylvester Butler is currently incarcerated at Columbia Correctional Institution, located in Columbia County, Florida. When the events giving rise to his claim arose, he was incarcerated at Florida State Prison, located in Bradford County, Florida.
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10. Plaintiff Kenneth Caudill is currently incarcerated at Union Correctional Institution, located in Union County, Florida. When the events giving rise to his claim arose, he was incarcerated at Florida State Prison, located in Bradford County, Florida.
11. Plaintiff Sammy J. Douse, at all times material to this action, and currently, is incarcerated at Charlotte Correctional Institution, located in Charlotte County, Florida.
12. Plaintiff Willie English at all times material to this action, and currently, is incarcerated at Florida State Prison in Bradford County, Florida.
13. Plaintiff Sidney Everett is currently incarcerated at Tomoka Correctional Institution, located in Volusia County, Florida. When the events giving rise to his claim arose, he was incarcerated at Washington Correctional Institution, located in Washington County, Florida.
14. Plaintiff Kelvin Frazier is currently incarcerated at Santa Rosa Correctional Institution, located in Santa Rosa County, Florida. When the events giving rise to his claim arose, he was incarcerated at Florida State Prison, located in Bradford County, Florida.
15. Plaintiff Morris J. Gilbert is a prisoner currently on out-to-court status. When his court appearance is completed, he will return into the custody of the Florida Department of Corrections. When the events giving rise to his claim arose, he was incarcerated at Charlotte Correctional Institution, located in Charlotte County, Florida.
16. Plaintiff JiJuan T. Hagans is currently incarcerated at Union Correctional Institution, located in Union County, Florida. When the events giving rise to his claim arose, he was incarcerated at Florida State Prison, located in Bradford County, Florida.
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17. Plaintiff Troy D. Hall is currently incarcerated at Union Correctional Institution, located in Union County, Florida. When the events giving rise to his claim arose, he was incarcerated at Florida State Prison, located in Bradford County, Florida.
18. Plaintiff Benjamin LaFlower, at all times material to this action, and currently, is incarcerated at Charlotte Correctional Institution, located in Charlotte County, Florida.
19. Plaintiff Curt Massie is currently incarcerated at Charlotte Correctional Institution, located in Charlotte County, Florida. When the events giving rise to his claim arose, he was incarcerated at Florida State Prison, located in Bradford County, Florida.
20. Plaintiff Anthony J. McCloud is currently incarcerated at Everglades Correctional Institution, located in Miami-Dade County, Florida. When the events giving rise to his claim arose, he was incarcerated at Washington Correctional Institution, located in Washington County, Florida.
21. Plaintiff Lamar A. Miffin is currently incarcerated at Florida State Prison, located in Bradford County, Florida. When the events giving rise to his claim arose, he was temporarily at Washington Correctional Institution, located in Washington County, Florida.
22. Plaintiff Michael L. Montgomery is currently incarcerated at Santa Rosa Correctional Institution, located in Santa Rosa County, Florida. When the events giving rise to his claim arose, he was incarcerated Washington Correctional Institution, located in Washington County, Florida.
23. Plaintiff Kunta Porter, at all times material to this action, and currently, is incarcerated at Charlotte Correctional Institution, located in Charlotte County, Florida.
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24. Plaintiff Issac Sharpe is a prisoner currently on out-to-court status. When his court appearance is completed, he will return into the custody of the Florida Department of Corrections. When the events giving rise to his claim arose, he was temporarily at Washington Correctional Institution, located in Washington County, Florida.
25. Plaintiff Samuel Strother, at all times material to this action, and currently, is incarcerated at Charlotte Correctional Institution, located in Charlotte County, Florida.
26. Plaintiff Jeremiah Thomas is currently incarcerated at Union Correctional Institution, located in Union County, Florida. When the events giving rise to his claim arose, he was incarcerated at Florida State Prison, located in Bradford County, Florida.
27. Plaintiff Eugene E. Ulrath is currently incarcerated at Union Correctional Institution in Union County, Florida. When the events giving rise to his claim arose, he was incarcerated at Florida State Prison, located in Bradford County, Florida.
28. Plaintiff Glenn Wheeler, at all times material to this action, and currently, is incarcerated at Charlotte Correctional Institution, located in Charlotte County, Florida.
29. Plaintiff Reginald Williams is currently incarcerated at Santa Rosa Correctional Institution, located in Santa Rosa County, Florida. When the events giving rise to his claim arose, he was incarcerated at Florida State Prison, located in Bradford County, Florida.
30. Defendant James V. Crosby, Jr., is the Secretary of the Florida Department of Corrections. As such, he bears overall responsibility for the operation of all prisons under the supervision and control of the Florida Department of Corrections. He is sued in his official capacity.
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31. Defendant Gerald H. Abdul-Wasi is the Inspector General of the Florida Department of Corrections. As such, he has statutory responsibility for investigating complaints of staff misconduct, including the investigation of all reported uses of force by staff, including use of force by way of chemical agents, and reporting the results of his investigations to prison management. He is sued in his official capacity.
32. Defendant Joseph Thompson is the Warden at Florida State Prison. As such, he bears overall responsibility for the operation of the prison, including review and approval or disapproval of use of force incidents, including use of chemical agents. He is sued in his official capacity.
33. Defendant Joseph Petrovsky is the Warden at Santa Rosa Correctional Institution. As such, he bears overall responsibility for the operation of the prison, including review and approval or disapproval of use of force incidents, including use of chemical agents. He is sued in his official capacity.
34. Defendant Wendell Whitehurst is the Warden at Washington Correctional Institution. As such, he bears overall responsibility for the operation of the prison, including review and approval or disapproval of use of force incidents, including use of chemical agents. He is sued in his official capacity.
35. Defendant Chester Lambdin is the Warden at Charlotte Correctional Institution. As such, he bears overall responsibility for the operation of the prison, including review and approval or disapproval of use of force incidents, including use of chemical agents. He is sued in his official capacity.
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CLASS ACTION ALLEGATIONS 36. The named Plaintiffs bring this suit as a class action, pursuant to the provisions of Rule 23(b)(2) of the Federal Rules of Civil Procedure for injunctive and declaratory relief on behalf of a class of all persons similarly situated. 37. The class of Plaintiffs consists of all persons who are: a. now in, or will hereafter come into, the custody of the Florida Department of Corrections, and b. now housed, or will hereafter be housed, in any type of segregated housing, including but not limited to Maximum Management, Close Management, Disciplinary Confinement or Administrative Confinement, and c. have been, or may be in the future, subjected to a non-spontaneous use of force by way of chemical agents used maliciously and sadistically for the very purpose of causing harm and not in a good-faith effort to maintain or restore discipline. 38. The Plaintiff class consists of an unknown but large number of inmates, numbering in the many thousands at any given time, so that joinder of all members is impracticable. 39. Controlling issues of law and fact are common to all members of the Plaintiff class in that Florida Department of Corrections employees routinely use chemical agents maliciously and sadistically for the very purpose of causing harm and not in a good-faith effort to maintain or restore discipline. 40. Controlling issues of law and fact are also common to all members of the Plaintiff class in that Florida Department of Corrections supervisory employees routinely participate,
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facilitate, encourage, or acquiesce in the behavior of their subordinates and are fully aware that chemical agents are used maliciously and sadistically for the very purpose of causing harm and not in a good-faith effort to maintain or restore discipline, and with that knowledge, fail to take any corrective action.
41. The claims of the individual Plaintiffs are typical of the claims of the members of the Plaintiff class. The named Plaintiffs' right to be free from cruel and unusual punishment has been abridged by the repeated, unjustified, malicious or sadistic use of chemical agents for the very purpose of causing harm and not in a good-faith effort to maintain or restore discipline and their rights are likely to be abridged again in the future, contrary to the Eighth Amendment to the United States Constitution.
42. The named Plaintiffs will fairly and adequately protect the interests of the members of the Plaintiff class. The named Plaintiffs have a strong personal interest in the outcome of this action and have no conflicts of interest with members of the Plaintiff class. The named Plaintiffs are all current prisoners who have had chemical agents used on them maliciously and sadistically for the very purpose of causing harm and not in a good-faith effort to maintain or restore discipline. As long as the policies, practices and customs of Florida Department of Corrections continue to permit employees to abuse prisoners with chemical agents, the named Plaintiffs, and the class they represent, are and will remain at high risk of being unjustly and/or excessively sprayed with chemical agents.
43. The named Plaintiffs are represented by experienced counsel who specialize in litigation concerning conditions and practices in prisons and jails.
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44. Defendants have acted on grounds generally applicable to the Plaintiff class as a whole, thereby making appropriate final declaratory and injunctive relief with respect to the class as a whole. The defendants' policy, practice and custom of repeated, unjust, arbitrary and excessive use of chemical agents maliciously and sadistically for the very purpose of causing harm and not in a good-faith effort to maintain or restore discipline necessitates injunctive relief directing defendants to cease their practice of permitting employees to abuse inmates with chemical agents and to implement remedial measures.
GENERAL FACTUAL ALLEGATIONS 45. Employees of the Department of Corrections are authorized to use a variety of types of force where the circumstances warrant, including hands-on physical force, chemical agents, electronic immobilization devices, batons, and specialty munitions, as described in Rule 33602.210, Florida Administrative Code, promulgated by the Florida Department of Corrections. 46. Rule 33-602.210(14), F.A.C., provides that three types of chemical agents may be used against prisoners: 1. Oleoresin Capsicum (pepper spray), 2. Orthochlorbenzal Malononitrile or Orthochlorobenzylidene Malononitrile (CS tear gas), and 3. Cloroacetophene (CN tear gas). 47. As described in Rule 33-602.210(14), F.A.C., each of these chemical agents causes, and is intended to cause, intense physical pain when applied to human beings. The physical effects described by the Rule are as follows: (a) OC pepper spray "causes tearing and involuntary closing of the eyes, nasal discharge, sneezing, disorientation, and the sensation of respiratory distress;" (b) CS tear gas "causes eyes to burn and tear, nasal discharge, and skin and upper
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respiratory irritation;" and (c) CN tear gas "causes tearing of the eyes, nasal discharge, and skin and upper respiratory irritation."
48. Despite frequent claims that chemical agents are used without justification or to excess, Defendants have recently begun using a different brand of pepper spray that has a much higher percentage of active pepper.
49. Rule 33-602.210, F.A.C., includes rules governing both spontaneous and nonspontaneous use of force situations.
50. A spontaneous use of force involves an immediate need to use force without time for reflection or planning. Plaintiffs’ claims do not arise from the spontaneous use of force.
51. A non-spontaneous use of force is a use of force which occurs after time for reflection and planning by the correctional staff using the force.
52. Rule 33-602.210(14)(c) specifically authorizes the use of OC pepper spray and CS tear gas under "controlled situations when time constraints are not an issue."
53. Plaintiffs’ claims arise from non-spontaneous uses of force in controlled situations where time constraints are not an issue.
54. "Controlled conditions" are situations where prisoners are housed in segregation or are otherwise locked down or restrained. Segregated housing includes Administrative Confinement, Disciplinary Confinement, Close Management, and Maximum Management.
55. Rule 33-602.210(14)(m) authorizes the use of chemical agents in "controlled conditions" when prisoners are "disorderly, disruptive [or] unruly." The Rule requires, however, that before chemical agents can be used, Correctional Officers must first attempt to end the
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improper behavior through counseling and verbal orders. If the inmate is not responsive to the
Correctional Officer, then “the confinement or close management lieutenant or shift supervisor”
must attempt to end the improper behavior before chemical agents can be used.
56. Thereafter, Rule 33-602.210(14)(m)(3), provides that:
Prior to using chemical agents, the inmate again shall be counseled with concerning his behavior.
a. If this attempt to counsel with the inmate is unsuccessful, the inmate will be given a final order by staff to cease his actions. The inmate will also be informed at this time that chemical agents will be administered if he continues his disruptive behavior.
b. If the inmate continues his disruptive behavior, approximately three minutes after the order is given, staff are authorized to administer chemical agents in the form of no more than three one-second bursts. Staff are authorized to immediately utilize chemical agents if physical injury to staff or other inmates appears imminent.
c. If after approximately five minutes from the initial exposure the inmate still continues his disruptive behavior, staff are authorized to again administer chemical agents for no more than three one-second bursts.
d. If the second administration of chemical agents fails to control the inmate’s disruptive behavior, the duty warden shall again be consulted to determine the next course of action.
57. Rule 33-602.210(14)(c), F.A.C., provides that “[i]n controlled situations when time
constraints are not an issue, chemical agents can only be used if authorized by the warden or duty
warden.” Rule 33-602.210(14)(m)(2)(b), F.A.C., also requires that prior to using chemical agents
the warden or duty warden be contacted for “authorization to utilize chemical agents.” On
information and belief, Defendants Thompson, Lambdin, Petrovsky, and Whitehurst, do not
independently review or otherwise insure that requests to use chemical agents are consistent with
Rule 33-602.210, F.A.C.
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58. Segregated housing cells have a small opening, called a "food flap," which is controlled by correctional staff. The flap is generally closed and locked except at meal times and at other times when it is necessary to exchange an item with the occupant of the cell.
59. When correctional staff use chemical agents in a controlled situation on prisoners in segregated housing, the usual process is to unlock the food flap and spray chemical agents into the cell through the opening.
60. At times, chemical agents are sprayed into a cell by sliding the cell door open a few inches and holding the door in place with a chain around the door to the neighboring cell.
61. At times, chemical agents are sprayed into a cell from outdoors by using the cell window as the entry point.
62. On occasion, chemical agents have been sprayed into a cell simultaneously through the cell door and the cell window.
63. The ventilation system is turned off before chemical agents are used in the segregated housing units. In addition, correctional staff often cover the outside window of the cell with cardboard or plastic bags to further concentrate the impact of the chemical agents.
64. Florida Department of Corrections policies require that certain actions be taken after chemical agents are used, including quickly removing the prisoner from the contaminated cell, allowing the prisoner to rinse the chemicals off in a cold shower, returning the prisoner to a decontaminated cell and issuing fresh clothes and bed sheets. These actions are routinely ignored, thereby knowingly and intentionally increasing the suffering caused by the use of chemical agents.
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65. Correctional officers often control the water and the water temperature in the segregated housing showers. When prisoners are taken to the shower after being sprayed with chemical agents, the correctional officers sometimes turn the water on for only a few seconds and/or adjust the water temperature to very hot. Hot water, rather than alleviating the effects of the chemical agents, aggravates the situation.
66. The use of chemical agents has steadily increased since 1999 and currently represents the majority of all use of force incidents within the Florida Department of Corrections. FDOC statistics reveal that chemical agents were used a total of 1,455 times in the year 2000, representing about 40% of all use of force incidents for that year. In the year 2001 this number rose to 1,758, or 46% of all use of force incidents. The use of chemical agents increased again in 2002, to 1,856 incidents, or 54% of all uses of force.
67. At Florida State Prison, where all inmates are in confinement, chemical agents were used 238 times in 2000, 385 times in 2001, and 447 times in 2002. This represents an 87% increase in the use of chemical agents over this period of time.
68. At Charlotte Correctional Institution, chemical agents were only used 8 times in 2000 and 10 times in 2001, there was a tenfold increase in 2002 when these weapons were used 80 times.
69. At Washington Correctional Institution, chemical agents were used 80 times in 2000, 267 times in 2001, and 124 times in 2002. This represents a 234% spike in 2001 and an overall 55% increase over this time period.
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70. At Columbia Correctional Institution chemical agents were used 54 times in 2000, 104 times in 2001, and 196 times in 2002. This represents a 262% increase over this time period.
71. At Santa Rosa Correctional Institution chemical agents were used 218 times in 2000, 160 times in 2001, and 271 times in 2002. Overall, this is a 24% increase.
72. Rule 33-602.210(2), F.A.C., provides in part that "All authorized use of force incidents will be videotaped in their entirety." This part of the rule was added after the death of Frank Valdes at Florida State Prison in July 1999. Videotaping was implemented in order to document whether the force used was in fact appropriate and not excessive and to deter the type of physical abuse that resulted in the death of Mr. Valdes.
73. Rule 33-602.210(2), F.A.C., specifically exempts from videotaping “the administration of chemical agents . . . for use on an inmate creating a disturbance in his or her cell when the officer is attempting to resolve the situation without extracting the inmate from the cell.” The purpose and intent of this provision is to avoid creating a record that would allow a meaningful review of the use of chemical agents.
74. Rule 33-602.210(6), F.A.C., requires that whenever force is used, “a detailed written report of force used shall be prepared, dated and signed by the initial employee using force.”
75. Rule 33-602.210(8), F.A.C., requires the Warden to immediately conduct a preliminary review of all use of force incidents.
76. Rule 33-602.210(8), F.A.C., further requires that information about each use of force be forwarded to the Use of Force Unit within the Office of Inspector General.
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77. Rule 33-602.210 requires that all use of force incidents, including use of force by way of chemical agents, be reviewed, and either approved or disapproved, by Defendant AbdulWasi.
78. On information and belief, Defendant Abdul-Wasi has approved every nonspontaneous use of force by way of chemical agents which has occurred in a controlled setting at any time after July, 1999.
79. Defendant Abdul-Wasi has failed to make any kind of good-faith investigation of the numerous prisoner claims that correctional officers use chemical agents without justification and to excess.
80. Inmates who believe that they have been the victim of unjustified use of chemical agents can grieve the issue. The grievance process consists of three steps, an informal appeal to the responsible local official, a formal appeal at the prison level, and a formal appeal to the Secretary of the Florida Department of Corrections, the Defendant Crosby.
81. None of the grievances filed by the named Plaintiffs have ever resulted in a finding that chemical agents were used without justification or to excess.
82. On information and belief, none of the grievances filed by class members have ever resulted in a finding that chemical agents were used without justification or to excess.
83. On information and belief, none of the individuals to whom Defendant Crosby has delegated the responsibility for responding to grievances alleging the use of chemical agents without justification or to excess has ever made a meaningful inquiry into the merits of the grievance.
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84. Defendants know that allegations of abuse by way of chemical agents are widespread within the Florida Department of Corrections. With that knowledge, Defendants take no action to meaningfully investigate or correct the problem.
85. Despite the widespread complaints of misuse of chemical agents, Defendant Crosby has adopted a policy (Rule 33-602.210(2), F.A.C.), which while requiring that all authorized use of force incidents be videotaped, specifically exempts the non-spontaneous and planned use of chemical agents when directed at an inmate who is in his or her cell.
86. The refusal to require videotaping of non-spontaneous and planned uses of chemical agents, despite widespread complaints of abuse, intentionally precludes any meaningful review of alleged staff misconduct.
87. The rationale offered for not videotaping — that if an inmate saw a camera, the inmate would cease his or her misconduct — is directly contrary to controlling constitutional law, and the requirement of Rule 33-602.210(2), that force is only to be used as a matter of last resort.
88. Despite the widespread allegations that chemical agents are used without justification and to excess, Defendant Crosby has taken no meaningful measures to insure that the actions of the correctional officers using chemical agents are reviewed in a meaningful way and that appropriate corrective action is taken.
89. Defendants know that the number of times chemical agents have been used has increased significantly over the last three years.
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90. As a direct and proximate result of the unjustified or excessive use of chemical agents, maliciously and sadistically for the very purpose of causing harm and not in a good-faith effort to restore order or maintain discipline or for any other legitimate penological reason, Plaintiffs, and members of the Plaintiff class, have suffered intense physical pain and sometimes serious injuries such as second-degree chemical burns, permanent eye damage, life-threatening asthma attacks, seizures and deterioration of their mental health. These injuries are not limited to the prisoners who are directly sprayed, as all prisoners in the vicinity where chemical agents are used also suffer the adverse affects of exposure.
91. As a direct and proximate result of the unjustified or excessive use of chemical agents, Plaintiffs, and the members of the Plaintiff class, are psychologically tormented by the constant threats of Correctional Officers that chemical agents will be used on them and by hearing the cries of pain from prisoners in neighboring cells who are sprayed.
FACTUAL CLAIMS OF THE INDIVIDUAL PLAINTIFFS Danny E. Brown
92. On June 10, 2002, while housed in administrative confinement at Santa Rosa Correctional Institution, Plaintiff Brown declared a psychological emergency. Plaintiff Brown explained to a Psychological Specialist that he was "feeling suicidal and homicidal."
93. As a result of his declaring a psychological emergency, and explaining his feelings to the Psychological Specialist, Plaintiff Brown was placed on Alternate Medical Housing Cell (AMHC) status, on the recommendation of two psychiatrists, to be observed for potential for self-injury.
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94. On June 10, 2002, Plaintiff Brown was classified as an S-3 inmate. An S-3 inmate is one who, because of a documented history of mental disease or disorder, requires regular access to mental health staff. Plaintiff's history includes depression for which he was treated with psychotropic medicine prior to June 10, 2002.
95. An inmate is housed on AMHC status for his own protection on account of a potential for suicide or other self-inflicted harmful behavior.
96. While housed on AMHC status Plaintiff Brown began to hear voices and, in response, began to cover his body with his own feces.
97. Plaintiff Brown's feces-smeared body was observed by members of the mental health staff and by various Correctional Officers, including two Captains and a Lieutenant.
98. At about 3:00 p.m. on June 11, 2002, the water to Plaintiff Brown's cell was turned off and the outside window sealed with tape. Shortly thereafter, chemical agents were discharged into Plaintiff's cell.
99. As the direct and proximate result of the use of chemical agents, Plaintiff Brown suffered an asthma attack, breathing difficulties, and mental and emotional distress. Staff who administered the chemical agent knew that Plaintiff Brown was an asthmatic prior to administering the gas.
100. Plaintiff Brown did not engage in any type of behavior that justified the use of force, including the use of chemical agents.
101. No disciplinary action was taken against Plaintiff Brown as a result of the events of June 11, 2002.
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102. Plaintiff Brown grieved the improper use of chemical agents. His Informal Grievance was denied, with the statement that the "use of force was investigated, reviewed and approved by the Inspector General's Office.” Plaintiff Brown's formal institutional level grievance contained the same response with the additional statement that "staff are not at fault and appropriately responded to your inappropriate actions." Plaintiff's appeal to Defendant Crosby was denied.
103. Plaintiff Brown remains at Santa Rosa Correctional Institution, where he is currently assigned to Close Management III status. Because Plaintiff Brown's release date is not until June, 2006, there is a real possibility that he will again be subject to the unjustified use of chemical agents should he again experience mental distress at some time during the course of his incarceration if the current policies, practices and customs concerning the use of chemical agents continue.
Sylvester Butler 104. Plaintiff Sylvester Butler has a history of psychiatric problems and is borderline developmentally disabled. The use of chemical agents on Plaintiff Butler, as alleged herein, is at least in part, attributable to his psychiatric and developmental problems. 105. On March 14, 2000 and March 15, 2000, while locked in a Close Management cell at Santa Rosa Correctional Institution, Plaintiff Butler was sprayed with chemical agents multiple times. He suffered second-degree burns on his right shoulder and upper back area as a result of exposure to these chemicals.
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106. On October 3, 2000, while at Florida State Prison, Plaintiff Butler sought medical attention by calling out from his cell to get the attention of the Correctional Officers on duty. There is no intercom system or other means of communicating with the staff assigned to the housing wings at Florida State Prison, other than by calling out. In response to Plaintiff Butler’s requests for medical assistance, Captain Chastain and Correctional Officer Reeder turned off the exhaust fans, approached Plaintiff Butler’s cell, unlocked the food flap and Reeder began spraying chemical agents into the cell.
107. Despite Plaintiff Butler's compliance with all orders to cease calling out to correctional staff, Chastain and Reeder returned twice during the next hour and sprayed tear gas into his cell. No warnings were given before chemical agents were used.
108. Colonel Clark, then the highest ranking Correctional Officer at Florida State Prison, and now an Assistant Warden, authorized the use of chemical agents against Plaintiff Butler with full knowledge that it was being used solely as a means of torture and intimidation.
109. Neither Correctional Officers Chastain or Reeder, or any other employee of the Florida Department of Corrections, took Plaintiff Butler to the shower so he could rinse off the chemicals.
110. Correctional Officer Reeder wrote a Use of Force report, falsely stating that force was used because Plaintiff Butler was "beating on his cell door and was refusing all verbal orders from me to cease his disorderly conduct or chemical agents would be administered." He also falsely stated that he used only three 1-second bursts of pepper spray and of tear gas.
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111. In a further attempt to conceal his improper use of chemical agents, Correctional Officer Reeder wrote a disciplinary report charging Plaintiff Butler with disorderly conduct.
112. Reeder, Chastain and Clark knew that the use of force on Plaintiff Butler was not necessary to maintain or restore order because he was locked in his cell and only asking for medical attention.
113. Plaintiff Butler developed large, water filled blisters on his hip. The blisters eventually broke and Plaintiff Butler's skin peeled off, leaving his entire hip with a raw, seeping wound.
114. Plaintiff Butler has exhausted all available administrative remedies regarding the use of chemical agents against him on October 3, 2000.
115. Plaintiff Butler has been sprayed with chemical agents on at least seventeen (17) separate occasions since February 2000 in retaliation for lawful activities such as calling out from his cell to make requests to staff, for speaking to prisoners in neighboring cells, for filing grievances regarding staff misconduct, and for in-cell conduct that might warrant a disciplinary report but not the use of force.
116. Plaintiff Butler has also been sprayed with large quantities of chemical agents at Florida State Prison, in situations when he was not disorderly and no use of force was necessary, on April 28, 2000; July 5, 2000; December 8, 2000; January 2, 2001; January 17, 2001; February 6, 2001; March 16, 2001; and August 5, 2001; August 30, 2001; and August 31, 2001.
117. Plaintiff Butler is currently assigned to Close Management I status at Columbia Correctional Institution. His release date is not until October, 2007, which means there is a
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significant possibility he will again be subject to the unjustified use of chemical agents at some time during the course of his incarceration if the current policies, practices and customs concerning the use of chemical agents continue.
Kenneth Caudill 118. Plaintiff Caudill has epilepsy, which causes such frequent and severe seizures that he must wear a protective helmet at all times. He also has asthma. 119. Plaintiff Caudill also suffers from a mental illness. His Department of Corrections’ doctors recommended in December 2000 that he remain housed in the inpatient psychiatric care unit at Union Correctional Institution for the remainder of his incarceration. However, in April 2002 Plaintiff Caudill was returned to Close Management at Florida State Prison. 120. On May 13, 2002, Colonel Clark was on the wing supervising the use of chemical agents against other prisoners when Plaintiff Caudill attempted to ask him a question. 121. Rather than respond to Plaintiff Caudill's inquiry, Clark told Lieutenant Halle to spray Plaintiff Caudill with chemical agents. Without issuing any orders or warnings, Lieutenant Halle sprayed pepper spray and tear gas into Plaintiff Caudill's cell. 122. As the direct and proximate result of the unjustified use of chemical agents, Plaintiff Caudill suffered seizures and asthma attacks. 123. In order to cover up the unjustified use of chemical agents, Correctional Officer Travis Baird wrote a Use of Force Report, falsely stating that chemical agents were used because Plaintiff Caudill was creating a disturbance on the wing by kicking and beating on his cell door and yelling obscenities at staff members.
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124. On May 14, 2002, Plaintiff Caudill filed a grievance complaining about the improper use of force against him by Clark and Halle. In response, he was told that his complaint had been referred to the Inspector General's office and that he could consider his grievance approved from that standpoint. Plaintiff Caudill was never informed about the outcome of that investigation.
125. Plaintiff Caudill is currently assigned to Close Management I status and is housed in the inpatient mental health unit at Union Correctional Institution. Plaintiff Caudill's release date is not until June, 2006, which means there is a significant possibility he will again be subject to the unjustified use of chemical agents at some time during the course of his incarceration if the current policies, practices and customs concerning the use of chemical agents continue.
Sammy J. Douse 126. Plaintiff Douse is developmentally disabled. 127. Plaintiff Douse has filed a number of grievances complaining about the conditions at Charlotte Correctional Institution and about being mistreated by Charlotte correctional officers. 128. On April 29, 2003, several correctional officers, including Officer Spears, Officer Sinkler and Lieutenant McCarter, responded to Plaintiff Douse’s request for additional grievance forms by repeatedly spraying him with chemical agents. 129. In order to cover up this retaliatory and unnecessary use of force, Officer Sinkler wrote a disciplinary report falsely charging Plaintiff Douse with disorderly conduct.
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130. As the direct and proximate result of being sprayed with chemical agents, Plaintiff Douse developed a painful chemical burn on his nose.
131. Plaintiff Douse has exhausted his administrative remedies. At all three levels of the grievance process he complained that force had been used against him without provocation and he requested that the surveillance videotape be reviewed to substantiate his claim of abuse. His appeal to Defendant Crosby was denied on May 28, 2003, stating that the subject of his grievance was being reviewed by the investigative section of the Inspector General’s office. Plaintiff Douse has not been informed of the outcome of that review.
132. On May 4, 2003, Plaintiff Douse was again sprayed with chemical agents, this time while he was handcuffed and locked in a confinement shower, because he was talking to other inmates who were in the dayroom.
133. As a means of covering up this completely unjustified use of chemical agents, Officer Millard wrote a Use of Force Report and Officer Sullivan wrote a disciplinary report, both falsely stating that Plaintiff Douse was being disorderly and refusing orders to submit to proper restraints.
134. As a direct and proximate result of being sprayed on May 4, 2003, Plaintiff Douse was burned on his right arm and right leg.
135. Plaintiff Douse has exhausted his administrative remedies with regard to the use of chemical agents against him on May 4, 2003. His grievances were denied at all levels and the response to his grievance appeal to Defendant Crosby, dated June 24, 2003, states that the subject of his grievance is under review by Departmental Staff and at the conclusion of that review
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“appropriate and necessary action” will be taken. Plaintiff Douse has not been informed of the outcome of the review or of any corrective action taken.
136. In a formal grievance to the medical department, dated May 11, 2003, Plaintiff Douse complained that the medical staff should not have given authorization for him to be sprayed with chemical agents because he is allergic to the chemicals and suffered a burn on his nose. In response, the Regional Medical Director stated, “[t]he medical department does not ‘give’ approval to security to use chemical agents on any inmate. The use of chemical agent is solely made by security. If in fact the inmate has a condition that may be complicated by the use of chemical agent, security can ask for medical to stand by for emergency assistance if needed.”
137. Plaintiff Douse is currently assigned to Close Management I status at Charlotte Correctional Institution. Plaintiff Douse’s release date is not until September, 2005, which means there is a significant possibility that he will again be subject to the unjustified use of chemical agents at some time during the course of his incarceration if the current policies, practices and customs concerning the us of chemical agents continue.
Willie English 138. Plaintiff English has a history of very serious mental illness and was recently committed to the Correctional Mental Health Institution (CMHI) at Zephyrhills. He has been diagnosed with chronic schizophrenia. 139. On October 24, 2001, while Plaintiff English was silent in his cell at Florida State Prison, several Correctional Officers, including Lindsey, Covey and Lampp gathered outside his door. Sergeant Lindsey unlocked Plaintiff English's food flap, tapped on his window, and said,
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"Hey." Without issuing any warnings or orders, Officer Covey began spraying pepper spray into Plaintiff English's cell.
140. About twenty minutes later Lindsey ordered Plaintiff English to come to the door and asked him if he wanted a shower. Before Plaintiff English could respond, Covey stepped forward and sprayed him in the face, stomach, and groin.
141. About twenty-five minutes later, Lindsey, Covey and Lampp returned. Without saying anything to Plaintiff English they again used chemical agents.
142. At the time Lindsey, Lampp and Covey used chemical agents on Plaintiff English, they were aware that he was generally exhibiting signs of psychosis, was in need of mental health care, and that the use of force was not necessary to maintain or restore order because Plaintiff English was quiet and locked in his cell.
143. Covey wrote a Use of Force Report, falsely stating that chemical agents were used because Plaintiff English was "kicking his cell door and yelling obscenities at staff, and attempting to create a minor disturbance."
144. Plaintiff English's mental condition deteriorated rapidly after this incident. He was admitted to an inpatient mental health care unit shortly thereafter and eventually committed to the Correctional Mental Health Institution for intensive psychiatric care.
145. Plaintiff English has been sprayed at Florida State Prison on several other occasions, including October 20, 2000; November 17, 2000; August 20, 2001; and September 19, 2001.
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146. Plaintiff English’s severe mental illness renders him incapable of writing grievances or articulating complaints about staff misconduct. Therefore, the Department’s inmate grievance procedure is not “available” to him within the meaning of the Prison Litigation Reform Act. To the extent that the Prison Litigation Reform Act bars a prisoner from seeking relief in such circumstances, it violates the First, Sixth, Eighth and Fourteenth Amendments to the Constitution of the United States.
147. Although Plaintiff English lacks the ability to make use of the grievance procedure, the unjustified and excessive use of chemical agents was brought to the attention of Defendant Abdul-Wasi in a letter dated November 15, 2002. Defendant Abdul-Wasi took no action in response to the complaint.
148. Plaintiff English is currently assigned to Close Management II status at Florida State Prison. Plaintiff English's release date is not until July, 2009, which means there is a significant possibility he will again be subject to the unjustified use of chemical agents at some time during the course of his incarceration if the current policies, practices and customs concerning the use of chemical agents continue.
Sidney Everett 149. Plaintiff Everett is 62 years old, completely blind, and has prosthetic eyeballs. 150. On June 27, 2001, members of the prison administration and senior security staff, including then Warden Henry Alford, were making rounds in the section of Washington Correctional Institution where Plaintiff Everett was housed.
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151. As the prison administrators were walking in front of Plaintiff Everett's cell, Lieutenant Copeland looked in Plaintiff Everett's window and began yelling at him because his bed was not made to Copeland's satisfaction. Without issuing any orders or warnings, Copeland immediately unlocked the food flap in the cell door and began spraying pepper spray into Plaintiff Everett's cell.
152. In pain and confusion, Plaintiff Everett turned his head, hitting it on the side of the top bunk bed in his cell. His head hit with such force that his prosthetic eyes fell out of his eye sockets. The pepper spray got into Plaintiff Everett's eye sockets, causing him excruciating physical pain. His sockets swelled, preventing him from replacing his glass eyes for several weeks.
153. Lieutenant Copeland wrote a Use of Force, falsely stating that Plaintiff Everett had yelled obscenities and refused all orders to stop.
154. Plaintiff Everett did not receive any disciplinary action for his alleged disorderly conduct.
155. Plaintiff Everett has exhausted all available administrative remedies regarding the matters described herein.
156. Plaintiff Everett is currently in open population at Tomoka Correctional Institution. He is serving a life sentence, which means there is a significant possibility he will again be subject to the unjustified use of chemical agents at some time during the course of his incarceration if the current policies, practices and customs concerning the use of gas continue.
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Kelvin Frazier 157. Plaintiff Frazier has asthma, a condition that causes inflammation of the lungs and reduced breathing capacity. 158. On January 4, 2001, Plaintiff Frazier called out from his cell at Florida State Prison to get the attention of correctional officers to request that the officers notify Captain Riggs that Plaintiff Frazier needed to speak to him. 159. When Captain Riggs arrived at Plaintiff Frazier's cell, he refused to speak with Plaintiff Frazier and, as a means of retaliating for the demands Plaintiff Frazier was making on security staff, instead directed Correctional Officer Reynolds to spray pepper spray into the cell using a canister approximately the size of a fire extinguisher. No orders or warnings were issued to Plaintiff Frazier. Riggs and Reynolds continued to use chemical agents over the course of the next half hour. 160. The quantity of chemical agents used by Riggs and Reynolds was so great that Plaintiff Frazier was soaking wet, as were the walls, floor, and his personal property. 161. After exposure to chemical agents, Plaintiff Frazier suffered an asthma attack. Blisters later formed on Plaintiff Frazier's neck and his skin started to peel off. Plaintiff Frazier had second-degree chemical burns on his neck and around his left ear. 162. In order to cover up the unjustified use of force, Correctional Officer Reynolds wrote a Use of Force Report falsely stating that Plaintiff Frazier was "being loud and disruptive by yelling and kicking on his cell door" and that "he was ordered numerous times to cease his
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disruptive conduct, but to no avail." He also falsely stated that he used only three 1-second bursts of both pepper spray and tear gas.
163. A disciplinary report for disorderly conduct, written to further conceal the unjustified use of force, was overturned on appeal.
164. On January 11, 2001, Correctional Officer Reeder and Captain Lampp sprayed Plaintiff Frazier with chemical agents in retaliation for the grievances he filed about the previous week's use of force. Plaintiff Frazier received no warnings from defendants before they sprayed chemical agents into his cell.
165. The chemical agents aggravated the burns on Plaintiff Frazier's neck and also burned his forearms.
166. Reeder and Lampp were aware that the use of force on Plaintiff Frazier was not necessary to maintain or restore order because Plaintiff Frazier was quiet and locked in his cell.
167. Reeder wrote a Use of Force Report, falsely stating that he "observed Inmate Frazier beating on his cell door, and [sic] was refusing all verbal orders from me to cease his disorderly conduct or chemical agents would be administered." He also falsely stated that he sprayed only three 1-second bursts of pepper spray.
168. Plaintiff Frazier received a disciplinary report. It was overturned on appeal. 169. Plaintiff Frazier has exhausted all available administrative remedies regarding the matters described herein. He filed grievances about both incidents all the way to the Secretary's office, explaining that in each case the use of chemical agents was unjustified. He received the same responses back on both sets of grievances, each stating that his request for action was
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denied because the Office of the Inspector General was conducting a review. Plaintiff Frazier was never notified about the outcome of the Inspector General's review.
170. Plaintiff Frazier is currently assigned to Close Management II status at Santa Rosa Correctional Institution. He is serving a life sentence, which means there is a significant possibility he will again be subject to the unjustified use of chemical agents at some time during the course of his incarceration if the current policies, practices and customs concerning the use of chemical agents continue.
Morris J. Gilbert 171. On April 24, 2003, Plaintiff Gilbert, while in his cell at Charlotte Correctional Institution, was repeatedly sprayed with OC pepper spray and CS tear gas as punishment for allegedly committing an obscene act at an earlier time. 172. Before chemical agents were used, the officers taped plastic bags over the outside window of Plaintiff Gilbert’s cell to cut off the flow of fresh air into the cell. 173. In order to cover up their improper use of chemical agents, the officers wrote a Use of Force report that falsely stated it was necessary to use force because Plaintiff Gilbert refused an order to submit to handcuffs to be removed from the cell. 174. No disciplinary action was taken against Plaintiff Gilbert for his alleged failure to comply with orders to be handcuffed. 175. Plaintiff Gilbert filed grievances at the informal, formal and appeal levels, reporting that he had been abused and that the officers had used plastic bags to try to suffocate him, and requesting that each use of chemical agents be videotaped. At the formal level his grievance was
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denied and he received the following response, dated May 23, 2003, “Inspector Charlwood was contacted and advised that when officers administer chemical agent CS they often place the plastic bag on the window to keep it from spreading to the rest of the quad or Dorm. As CS is stronger than OC this is typically done only when using CS. This was not done in an attempt to suffocate you as you claim. Per rule, Video Cameras are not required at uses of force involving chemical agents.” His appeal to Defendant Crosby was denied on June 10, 2003, on the basis that the subject of his grievance was already under review by Departmental Staff. Plaintiff Gilbert has not been informed as to the outcome of that review.
176. Plaintiff Gilbert is currently assigned to Close Management I status at Charlotte Correctional Institution, although he is currently on out-to-court status. His release date is not until May, 2011, which means there is a significant possibility that he will again be subject to the unjustified use of chemical agents at some time during the course of his incarceration if the current policies, practices and customs concerning the use of chemical agents continue.
JiJuan T. Hagans 177. Plaintiff Hagans suffers from asthma and has mental health problems related to depression. 178. On June 29, 2000, Plaintiff Hagans stood at his cell door at Florida State Prison watching Colonel Clark and other officers spraying chemical agents into the cell of another inmate. Colonel Clark told Plaintiff Hagans to stop watching and Plaintiff Hagans asked what rule prohibited inmates from looking out their windows into the hallway.
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179. Colonel Clark called for chemical agents to be used on Plaintiff Hagans solely as a means of retaliating against him for verbally questioning an order. Despite Plaintiff Hagans's obvious pain and his pleas for medical help, Colonel Clark continued to spray Plaintiff Hagans until he apologized.
180. Plaintiff Hagans had an asthma attack after being exposed to the chemical agents. 181. After being examined by a nurse, Plaintiff Hagans was put back in the same cell where he had been sprayed. He continued to have difficulty breathing and vomited several times. 182. Five days later, after repeated requests to see a doctor, Plaintiff Hagans was taken to the medical clinic and put on a machine to assist with his breathing. The medical department knew he needed a breathing treatment because they had given him oxygen the previous year after he had been sprayed with chemical agents. 183. A Use of Force Report was written falsely stating that Plaintiff Hagans was beating and yelling on his cell door and refusing all orders to stop. 184. Colonel Clark and the Correctional Officers involved were aware that the use of force on Plaintiff Hagans was not necessary to maintain or restore order because Plaintiff Hagans was locked in his cell and was not causing an ongoing disturbance. 185. Plaintiff Hagans was subsequently sprayed with chemical agents without justification on June 20, 2001, at Florida State Prison and on February 6, 2001 and March 21, 2001 at Union Correctional Institution. He suffered asthma attacks each time he was sprayed. 186. Plaintiff Hagans has filed numerous grievances complaining that Colonel Clark unjustly targeted him to be sprayed with chemical agents. In a formal grievance dated July 3,
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2000, supervisory officials at Florida State Prison told him that his complaint was without merit because chemical agents were necessary to control his "extremely disruptive behavior." In another formal grievance, dated August 4, 2000, wherein Plaintiff Hagans complained that chemical agents should not be used on him because it gives him life-threatening asthma attacks he was told: "It is clearly noted in your record you have asthma, but that would not exclude the use of chemical agents."
187. Plaintiff Hagans is currently assigned to Close Management II status at Union Correctional Institution. His release date is not until August, 2009, which means there is a significant possibility he will again be subject to the unjustified use of chemical agents at some time during the course of his incarceration if the current policies, practices and customs concerning the use of chemical agents continue.
Troy D. Hall 188. Plaintiff Troy D. Hall has a history of mental health problems and is currently housed in an inpatient mental health care unit at Union Correctional Institution. 189. Plaintiff Hall was previously incarcerated at Florida State Prison. He has been transferred to an inpatient mental health care unit at Union Correctional Institution several times, but each time he is discharged he returns to Florida State Prison. 190. While housed at Florida State Prison, Plaintiff Hall has been sprayed with chemical agents on over thirty (30) occasions in retaliation for lawful activities such as grieving Correctional Officer misconduct, making requests for assistance to staff, talking to other inmates, and for in-cell conduct that might warrant disciplinary action but not the use of force.
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191. One of these occasions was on August 8, 2001, at which time Plaintiff Hall was housed in Maximum Management on Q-Wing. The cells on Q-Wing have two cell doors, an inner door of open bars and an outer door of solid steel. There are no windows in the cells. On August 8th, Plaintiff Hall needed assistance and yelled several times to the officers on the quarterdeck, there being no intercom system or any other means to communicate with the correctional officers.
192. Instead of assisting Plaintiff Hall or calling a supervisor to speak with him, Lieutenant Halle and Sergeant Perkins responded by spraying Plaintiff Hall with pepper spray and later with tear gas. Each time, they opened the solid steel door to spray the chemicals into the cell and then closed the door to close off all ventilation.
193. Plaintiff Hall was not given the opportunity to take a shower to wash off the chemical agents.
194. Correctional Officer Perkins wrote a Use of Force Report, falsely stating that Plaintiff Hall was being disorderly and that he did not comply with several orders to stop.
195. Plaintiff Hall has been sprayed with chemical agents on so many occasions that he frequently suffers serious nosebleeds when he is exposed to pepper spray and tear gas.
196. Plaintiff Hall is afraid that he will be arbitrarily sprayed with chemical agents again when he is returned to Close Management.
197. Plaintiff Hall has exhausted all available administrative remedies regarding the use of chemical agents against him on August 8, 2001.
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198. Plaintiff Hall is currently assigned to Close Management I status and is housed in the inpatient mental health unit at Union Correctional Institution. Plaintiff Hall's release date is not until June, 2004, which means there is a significant possibility he will again be subject to the unjustified use of chemical agents at some time during the course of his incarceration if the current policies, practices and customs concerning the use of chemical agents continue.
Benjamin LaFlower 199. On April 2, 2003, Plaintiff LaFlower, while in his cell at Charlotte Correctional Institution, was sprayed with chemical agents in retaliation for making a disrespectful comment to Officers Glover and Ronga the previous day. Captain Reid, Sergeant Mathewson, and Sergeant Hicks approached Plaintiff LaFlower’s cell and, without issuing any orders or warnings, repeatedly spraying him with chemical agents through the food flap in the cell door. When Plaintiff LaFlower tried to block the chemical agents from coming into his cell, the guards used a long metal bar to push him away from the food flap, cutting his hand. 200. In order to cover up their retaliatory and unjustified use of force, the officers wrote an incident report and a disciplinary report that falsely accused Plaintiff LaFlower of yelling and banging on his cell door and refusing to stop. 201. On April 9, 2003, Plaintiff LaFlower reported this incident in an informal grievance and was told that his allegations were being referred to the Inspector General’s office and that his grievance was “approved for I.G. reporting purposes only.” On June 6, 2003, Plaintiff LaFlower filed another informal grievance because he had never been interviewed by an inspector or been informed of the outcome of the investigation. He was told that based on
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medical reports and on the reports of the officers present, it had been determined there was no evidence to support his allegations and no further action was anticipated. The response to his grievance appeal to Defendant Crosby, dated July 8, 2003, states that the subject of his grievance is currently under review by Departmental staff and therefore his request for action is denied.
202. Plaintiff LaFlower is currently assigned to Close Management I status at Charlotte Correctional Institution. His release date is not until September, 2015, which means there is a significant possibility that he will again be subject to the unjustified use of chemical agents at some time during the course of his incarceration if the current policies, practices and customs concerning the use of chemical agents continue.
Curt Massie 203. Plaintiff Massie is a 41-year-old man diagnosed with Obsessive Compulsive Disorder and Delusional Disorder. At all times material to the Complaint he was taking psychotropic medication to treat his mental illness. 204. On October 8, 2000, while in his cell at Florida State Prison, Correctional Officers Green and Halle used chemical agents on Plaintiff Massie to punish him for making a funny face behind a nurse's back. 205. Correctional Officers Green and Halle failed to issue any warnings or orders to Plaintiff Massie before emptying cans of pepper spray and CS tear gas into his locked cell. 206. To justify the use of chemical agents, Correctional Officer Green wrote a Use of Force Report falsely stating that force was used because Plaintiff Massie had cursed at staff,
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screamed threats, and refused several orders to stop. He also falsely stated that he used only three 1-second bursts of both pepper spray and tear gas.
207. Colonel Clark authorized this use of force with full knowledge that it was unjustified and was done for retaliatory and punitive reasons.
208. When Plaintiff Massie was taken to the shower, Correctional Officer Green turned the hot water on to intensify the pain Plaintiff Massie was experiencing from the chemical agents.
209. Defendants failed to give Plaintiff Massie clean sheets for several hours and he was never issued a clean blanket.
210. Plaintiff Massie suffered second-degree chemical burns that caused large fluid-filled blisters and inflamed skin on his left arm, left leg, back and hip. The blisters on Plaintiff Massie's skin later burst, leaving raw exposed skin. He still experiences pain and burning when his skin is exposed to direct sunlight.
211. Despite Plaintiff Massie's extreme reaction to chemical agents, employees of the Department of Corrections again authorized and used chemical weapons on him on September 23, 2001.
212. Plaintiff Massie has exhausted all available administrative remedies regarding the matters described herein. In his grievance appeal to Defendant Crosby he explained that Correctional Officer Green used force against him vindictively and excessively. The response from Defendant Crosby states that the Inspector General's office was reviewing the subject of his grievance and that his request for action was denied.
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213. Plaintiff Massie is currently assigned to Close Management II status at Charlotte Correctional Institution. His release date is not until February, 2012, which means there is a significant possibility he will again be subject to the unjustified use of chemical agents at some time during the course of his incarceration if the current policies, practices and customs concerning the use of chemical agents continue.
Antonio J. McCloud 214. For a period of time ending on October 15, 2001, Plaintiff McCloud was housed by himself in a Close Management cell at Washington Correctional Institution on account of need for protection from other inmates. 215. On or about October 15, 2001, Lieutenant Copeland, who on information and belief, made no effort to comply with Rule 33-602.220(4)(a), informed Plaintiff McCloud that he would be getting a cellmate, an inmate by the name of Knox, and demanded that Plaintiff McCloud sign a form accepting the proposed cellmate. 216. Plaintiff McCloud expressed concern over the proposed cellmate, explaining that he and Knox could not get along, and refused to sign the form. 217. Despite the concern expressed by McCloud, and despite his refusal to sign the form which Lieutenant Copeland demanded, Knox was placed in McCloud's cell. 218. On October 15, 2001, when the next shift came on duty, both Plaintiff McCloud and inmate Knox expressed concern over being housed together. As a result, Plaintiff McCloud was moved to a separate cell.
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219. On October 16, 2001, when Defendant Copeland returned to duty and discovered that Plaintiff McCloud and inmate Knox were in separate cells, he arranged for the use of chemical agents on both Plaintiff McCloud and inmate Knox, solely because Plaintiff McCloud and inmate Knox continued to protest being housed together because of protection needs and because both refused to sign the form demanded by Lieutenant Copeland.
220. Plaintiff McCloud is asthmatic and the use of the chemical agents caused him to experience breathing difficulties.
221. In response to his informal grievance about the unjustified use of chemical agents, Lieutenant Copeland informed Plaintiff McCloud that "chemical agents were utilized because your disorderly conduct was causing a disturbance and disrupting the normal operations of the housing unit and you refused all orders to cease your disorderly conduct." Copeland’s response was made with full knowledge that it was not true and that the only conduct of Plaintiff McCloud was to refuse to sign the form. In response to his grievance to Defendant Crosby, Plaintiff McCloud was informed that the matter had been referred to Defendant Abdul-Wasi for investigation. Plaintiff McCloud has never been advised of the outcome of the investigation.
222. As a means of covering up the unjustified and unnecessary use of chemical agents, Plaintiff McCloud received a disciplinary report for disorderly conduct.
223. As the direct and proximate result of the unjustified use of chemical agents, Plaintiff McCloud suffered breathing difficulties and mental and emotional distress.
224. Plaintiff McCloud is currently assigned to Close Management III status at Everglades Correctional Institution. Because Plaintiff McCloud's release date is not until May,
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2026, there is a real possibility that he will again be subject to the unjustified use of chemical agents at some time during the course of his incarceration if the current policies, practices and customs concerning the use of chemical agents continue.
Lamar A. Miffin and Issac Sharpe 225. On September 20, 2001, Plaintiffs Miffin and Sharpe were temporarily moved from Florida State Prison to Washington Correctional Institution with over thirty other Close Management inmates. Plaintiff Miffin and Plaintiff Sharpe were taken to Washington Correctional Institution for mental health evaluations by a Department of Corrections' psychiatrist in connection with a class action lawsuit filed by the Florida Justice Institute and Florida Institutional Legal Services challenging the conditions imposed on inmates assigned to Close Management in Florida. 226. On September 24, 2001, while Plaintiffs Miffin and Sharpe were in full restraints, consisting of leg irons and handcuffs secured with a black box, and waiting in line with the other inmates to get on the bus back to Florida State Prison, Lieutenant Copeland and Correctional Officers Williams and Stoe pulled them out of line and locked them in cages in the visiting park. 227. After Plaintiffs Miffin and Sharpe were locked in the visitation cages, and within full view of other Florida State Prison inmates, Copeland warned them that they should not be witnesses against the state. Copeland, Williams and Stoe then proceeded to spray each of them with two cans of chemical agents at the same time, alternating between Plaintiffs Miffin and Sharpe several times. At times one officer was spraying in their faces and one was spraying down their pants.
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228. Lieutenant Copeland wrote Use of Force reports, falsely stating that both Plaintiffs Miffin and Sharpe were being loud and disruptive and refusing all orders to cease.
229. Neither Plaintiff Miffin or Plaintiff Sharpe received any disciplinary reports as a result of their alleged disruptive behavior.
230. Although Plaintiffs Miffin and Sharpe were soaked with pepper spray, they were denied a shower, despite their requests to be allowed to shower. Instead, they were forced to sit on the bus for the trip back to Florida State Prison that took between four and five hours.
231. Plaintiff Sharpe suffers from asthma, a medical condition causing inflammation of the lungs and reduced breathing capacity. As a result of exposure to chemical agents, Plaintiff Sharpe suffered two asthma attacks. He was only able to keep breathing because another inmate loaned him an inhaler used to treat acute asthma attacks.
232. Plaintiff Miffin experienced pain in his chest and when he arrived at Florida State Prison. An EKG test revealed abnormal results. Two days later, the skin on Plaintiff Miffin's head, neck and upper back began to peel off.
233. Plaintiffs Miffin and Sharpe have both exhausted all available administrative remedies regarding the matters described herein. Both Plaintiffs Miffin and Sharpe were told by Defendant Crosby that the Office of the Inspector General was reviewing their complaints and because this process was already initiated their request for action was denied. Neither Plaintiffs were ever informed of the outcome of the review.
234. Plaintiff Sharpe is currently assigned to Close Management II status at Union Correctional Institution, although he is currently on out-to-court status, and Plaintiff Miffin is
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currently assigned to Close Management I status at Florida State Prison. Plaintiff Sharpe's release date is not until August, 2009 and Plaintiff Miffin's release date is not until December, 2011, which means there is a significant possibility they will again be subject to the unjustified use of chemical agents at some time during the course of their incarceration if the current policies, practices and customs concerning the use of chemical agents continue.
Michael L. Montgomery 235. Prior to February 25, 2002, Plaintiff Montgomery, who was housed in administrative confinement, filed grievances alleging that various senior Correctional Officers at Washington Correctional Institution were engaging in abusive conduct. 236. On February 25, 2002, Lieutenant Copeland arranged for the use of chemical agents on Plaintiff Montgomery, solely as a means to retaliate against Plaintiff Montgomery for Plaintiff's grievance writing. 237. Plaintiff Montgomery, who was only dressed in his boxer shorts when the chemical agents were used, suffered burns to his thighs. 238. To justify the use of the chemical agents, Lieutenant Copeland prepared an Incident Report in which he falsely stated that "Inmate Montgomery was yelling, cursing staff, kicking on his cell door and refused all orders to cease." 239. Plaintiff Montgomery did not receive a disciplinary report for disorderly conduct or any other type of misconduct as a result of the conduct alleged by Lieutenant Copeland in the Incident Report.
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240. Plaintiff Montgomery filed an Emergency Grievance to Defendant Crosby, asserting that the use of the chemical agents on February 25, 2002, was retaliation by staff at Washington Correctional Institution for Plaintiff's grievance writing activities. In response, Defendant Crosby advised Plaintiff Montgomery that his grievance was not accepted as an emergency but that the matter was currently under investigation by Departmental Staff and that, since the review began before the grievance, the grievance was denied.
241. The Department Staff review consisted of nothing more than rubber stamp approval of the actions of Lieutenant Copeland.
242. Plaintiff Montgomery is currently assigned to Close Management II status at Santa Rose Correctional Institution. Because Plaintiff Montgomery's release date is not until May, 2005, there is a real possibility that he will again be subject to the unjustified use of chemical agents at some time during the course of his incarceration if the current policies, practices and customs concerning the use of chemical agents continue.
243. As the direct and proximate result of the unjustified use of chemical agents, Plaintiff Montgomery suffered burns to his thighs and mental and emotional distress.
Kunta Porter 244. On May 10, 2003, Plaintiff Porter, while in his cell at Charlotte Correctional Institution, was speaking to other inmates in nearby cells. 245. A few minutes after Plaintiff Porter had stopped talking, Lieutenant Pfalzgraf approached his cell, tapped on the window, and told Plaintiff Porter that he would be back. When
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Pfalzgraf returned, he was with Officer Millard. Without issuing any warnings or orders, they sprayed Plaintiff Porter with chemical agents.
246. In an attempt to cover up the unjustified and excessive use of force against Plaintiff Porter, the officers claimed that force was used in response to an ongoing disturbance. Plaintiff Porter was written disciplinary reports for disorderly conduct and for participating in a disturbance. The disciplinary report for disorderly conduct was later overturned.
247. On May 10, 2003, Plaintiff Porter filed an informal grievance reporting that he had been abused with chemical agents and requesting corrective action. In apparent violation of FDOC policy that prohibits the subject of an abuse complaint from answering the grievance, Lieutenant Pfalzgraf responded and falsely stated that “all appropriate actions was [sic] initiated to stop your disruptive behavior. I counsel with you pryor [sic] to the use of chemical agents being applied and appropriate steps were initiated according to policy and procedure of the Department.” Plaintiff Porter filed additional grievances and also requested that the surveillance video tape be reviewed to substantiate his allegations. At the formal level he was told that the subject of his grievance was currently being reviewed by the Institutional Inspector and that the request for action was denied. The response to his appeal to Defendant Crosby, dated June 24, 2003, states that the response he received at the institutional level was found to appropriately address his concerns and his appeal was denied. Plaintiff Porter filed another appeal and the response, dated July 7, 2003, denied relief, stating that the subject of his grievance was under review by Departmental Staff and that at the conclusion of that review, appropriate action will be taken. Plaintiff Porter was never informed as to the outcome of any investigation.
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248. Plaintiff Porter is currently assigned to Close Management I status at Charlotte Correctional Institution. Plaintiff Porter is serving a life sentence, which means there is a significant possibility that he will again be subject to the unjustified use of chemical agents at some time during the course of his incarceration if the current policies, practices and customs concerning the use of chemical agents continue.
Samuel Strother 249. Plaintiff Strother is asthmatic and is prescribed an inhaler to treat this condition. 250. On March 13, 2003, while in his cell at Charlotte Correctional Institution, Plaintiff Strother refused an order to get dressed in his “Class A” prison uniform and to make his bunk. 251. In response to this refusal, Officer Walkuski sprayed him with chemical agents while he was still in his locked cell. 252. As a direct and proximate result of this use of force, Plaintiff Strother suffered an asthma attack. 253. In an attempt to justify this use of chemical agents, Officer Walkuski wrote a Use of Force Report falsely stating that after Plaintiff Strother had refused the order to get dressed in his Class A uniform and make his bunk, Captain Reid had ordered Plaintiff Strother to either comply with CM rules or submit to handcuffs to be removed from the cell for counseling and that Plaintiff Strother had refused. 254. Plaintiff Strother grieved this incident and complained that force was used as an unjustified punishment for his refusal to get dressed in his full uniform and make his bed. His response from Defendant Crosby stated that the subject of his grievance was currently under
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review by Departmental Staff and that as this process had already been initiated his request for action was denied. Plaintiff Strother was not informed about the outcome of the Department’s review.
255. On April 29, 2003, Plaintiff Strother was again repeatedly sprayed with chemical agents after he questioned an order to put his dirty laundry bag in his locker with his clean clothes.
256. In order to cover up the retaliatory and excessive use of chemical agents, Plaintiff Strother received a Disciplinary Report for disorderly conduct.
257. As a direct and proximate result of chemical agents on April 29, 2003, Plaintiff Strother suffered an asthma attack.
258. Plaintiff Strother filed grievances, complaining that he had been sprayed with chemical agents in retaliation for questioning the order to put his dirty laundry bag in with his clean clothes. The response from Defendant Crosby states that the subject of his grievance was under review by Departmental staff and because that process had already been initiated his request for action was denied. Plaintiff Strother has not been advised as to the outcome of that review.
259. Plaintiff Strother is currently assigned to Close Management I status at Charlotte Correctional Institution. His release date is not until May, 2005, which means there is a significant possibility that he will again be subject to the unjustified use of chemical agents at some time during the course of his incarceration if the current policies, practices and customs concerning the us of chemical agents continue.
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Jeremiah Thomas 260. Plaintiff Thomas is a 31-year-old man with an extensive history of psychiatric problems. He suffers from Schizoaffective Disorder, which causes him to experience auditory hallucinations and bouts of mania during which he does not sleep for days and makes rhythmic noises by talking to himself or banging on his cell walls and door. Since his incarceration in 1991, he has been civilly committed to the Correctional Mental Health Institution (CMHI) several times, frequently admitted for inpatient mental health treatment, and is currently housed in the inpatient Transitional Care Unit at Union Correctional Institution. 261. Plaintiff Thomas has been diagnosed with asthma, a medical condition that causes inflammation of the lungs and reduced breathing capacity. 262. In 1998, following one of several commitments to CMHI, Plaintiff Thomas was transferred to Florida State Prison. From late December 1999 through mid-September 2000, Plaintiff Thomas was sprayed with chemical agents on at least nineteen (19) separate occasions. During this same period he had three admissions to the inpatient mental health care unit at Union Correctional Institution. 263. Following his third admission to the inpatient unit at Union Correctional Institution in the year 2000, Plaintiff Thomas was released on July 13, 2000, and sent back to Close Management at Florida State Prison. 264. Within a few hours of his arrival back at Florida State Prison on July 13, 2000, security staff sprayed a large quantity of chemical agents into Plaintiff Thomas's locked cell.
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Prior to this use of force, Plaintiff Thomas was not misbehaving and had merely asked security for assistance.
265. Plaintiff Thomas was subsequently sprayed with chemical agents on July 18, 20, 21, 23, 26, 2000 and August 3, 2000. During this time period Plaintiff Thomas was suffering symptoms of psychosis and mania that he was unable to control.
266. On September 20, 2000, Correctional Officer Musselman sprayed a large quantity of pepper spray into Plaintiff Thomas's cell without first issuing any orders or warnings. This force was used at the direction of Correctional Officer Anderson and with the authorization of Colonel Clark.
267. In order to cover up the excessive quantity of chemical agents used, Correctional Officer Musselman falsely wrote a report stating that he used only three 1-second bursts of chemical spray.
268. The next day, September 21, 2000, Correctional Officer Wilson sprayed a large amount of pepper spray into Plaintiff Thomas' cell without warning. This was at the direction of Correctional Officer Muse and with the authorization of Colonel Clark.
269. In his Use of Force Report, Correctional Officer Wilson falsely stated that he used only three 1-second bursts of spray.
270. Two days later, September 23, 2000, Correctional Officer Wilson failed to issue any warnings or orders to Plaintiff Thomas before again spraying him with both pepper spray and tear gas. This force was used at the direction of Sergeant Halle and with the authorization of Colonel Clark.
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271. Again, Correctional Officer Wilson wrote a false Use of Force Report stating that he had used only three 1-second bursts of both pepper spray and CN tear gas to cover up the fact that he used great quantities of chemical agents that soaked Plaintiff Thomas's entire body.
272. The next day, on September 24, 2000, Correctional Officer Tricocci sprayed Plaintiff Thomas with chemical agents without first issuing any orders or warnings. This force was used at the direction of Captain Chastain and with the authorization of Colonel Clark.
273. In his Use of Force Report, Correctional Officer Tricocci falsely stated that he used only three 1-second bursts of spray on Plaintiff Thomas.
274. During this time period Plaintiff Thomas was experiencing an acute psychiatric breakdown and was in need of mental health care.
275. Plaintiff Thomas was severely burned by the excessive amount of chemical agents used on September 20, 21, 23 and 24, 2000. He had painful blisters and open wounds on his ear and neck, abdomen, left arm, upper back and lower right leg.
276. On September 25, 2000, Assistant Warden Sapp reviewed and approved the multiple uses of force on Plaintiff Thomas from September 20, 21, 23 and 24, 2000. As a result of reviewing these reports, Sapp was aware that Plaintiff Thomas was having symptoms of psychosis and mania and that he had blisters and burns all over his body. Despite this knowledge, Sapp took no action to prevent the further use of force against Plaintiff Thomas or to insure that he received proper mental health treatment.
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277. On September 25, 2000, Correctional Officer Barnett sprayed Plaintiff Thomas with chemical agents three separate times without ever issuing any orders or warnings. This force was used at the direction of Captain Chastain and with the authorization of Duty Warden Whitehurst.
278. Defendant Barnett falsified his Use of Force Report to cover up for the grossly excessive quantities of pepper spray, CN tear gas, and CS tear gas he used on Plaintiff Thomas.
279. The following day, September 26, 2000, Correctional Officer Barton sprayed a large amount of pepper spray into Plaintiff Thomas' cell. No orders or warnings were issued beforehand. This force was used at the direction of Captain Lampp and with the authorization of Duty Warden Whitehurst.
280. Defendant Barton wrote a Use of Force Report that falsely stated that he used only three 1-second bursts of chemical spray on Plaintiff Thomas.
281. Each Correctional Officer who was involved in using or authorizing the use of chemical agents against Plaintiff Thomas on September 20, 21, 23, 24, 25 and 26, 2000, knew that Plaintiff Thomas was exhibiting signs of psychosis and was in need of mental health care.
282. Plaintiff Thomas was eventually admitted to the prison infirmary for treatment for his chemical burns and transferred to the Crisis Stabilization Unit at Union Correctional Institution for intensive mental health treatment, where he has remained as an inpatient receiving mental health care for over two years.
283. Because of his history of mental health problems, Plaintiff Thomas is terrified that he will be sprayed again with chemical agents when he returns to a Close Management unit.
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284. Plaintiff Thomas has exhausted all available administrative remedies regarding the matters described herein.
285. Plaintiff Thomas is currently assigned to Close Management I status, but housed in the inpatient mental health unit at Union Correctional Institution. Plaintiff Thomas' release date is not until January, 2019, which means there is a significant possibility he will again be subject to the unjustified use of chemical agents at some time during the course of his incarceration if the current policies, practices and customs concerning the use of gas continue.
Eugene E. Ulrath 286. On or about October 8, 2002, Plaintiff Ulrath was transferred to Florida State Prison. At the time of the transfer he was classified as an S-3, a mental health classification denoting moderate impairment in the ability to meet the ordinary demands of living within general inmate housing and, generally, periodic administration of psychotropic medication. The day he arrived, Plaintiff Ulrath sought mental health care by declaring a psychological emergency to several members of the security staff and to two different nurses on the wing. Every single one of his requests were ignored and he gave up. 287. A few hours after his last attempt to declare a psychological emergency, Correctional Officer Shipley repeatedly sprayed Plaintiff Ulrath with pepper spray and tear gas under the supervision of Captain Ellis and with the authorization of Duty Warden Jarvis. 288. Shipley, Ellis and Jarvis gave no warnings or orders to Plaintiff Ulrath before using chemical agents against him.
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289. Correctional Officer Shipley prepared a Use of Force Report, falsely stating that Plaintiff Ulrath was sprayed because he was causing a disturbance on the wing by kicking his cell door and encouraging other inmates to do the same. He further falsely stated that he only used a total of six one-second bursts of pepper spray and three one-second bursts of tear gas.
290. The next day, October 9, 2002, Plaintiff Ulrath was again sprayed with chemical agents without warning. Correctional Officer Lindsey used this force under the supervision of Captain Lampp and with the authorization of Duty Warden Jarvis.
291. In an effort to cover up this unnecessary use of chemical agents, Correctional Officer Lindsey wrote a Use of Force Report, falsely stating that Plaintiff Ulrath was kicking on his cell door and refusing all orders to stop. He also falsely stated that he only used a total of six one-second bursts of pepper spray and three one-second bursts of tear gas.
292. At the time chemical agents were utilized, Shipley, Ellis, Lindsey, Lampp and Jarvis knew that Plaintiff Ulrath suffered from psychological problems.
293. On October 10, 2002, Plaintiff Ulrath attempted to commit suicide by hanging himself with his bed sheet. He was placed in a special suicide observation cell and then transferred to inpatient mental health unit at Union Correctional Institution, where he remains and continues to require inpatient psychiatric treatment.
294. As a result of being exposed to an excessive quantity of chemical agents, Plaintiff Ulrath suffered chemical burns and developed large blisters on his back, buttock and leg.
295. Plaintiff Ulrath has exhausted his administrative remedies. He filed a formal grievance on December 5, 2002, explaining that he was sprayed without warning while lying
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quietly in his cell. The response stated that his allegations had been referred to the Inspector General's office for review and to that extent he could consider his grievance approved. His appeal to Defendant Crosby was denied. Plaintiff Ulrath was never informed of the outcome of Defendant Abdul-Wasi’s review.
296. Plaintiff Ulrath is currently assigned to Close Management I status and housed in the inpatient mental health unit at Union Correctional Institution. Plaintiff Ulrath's release date is not until August, 2008, which means there is a significant possibility he will again be subject to the unjustified use of chemical agents at some time during the course of his incarceration if the current policies, practices and customs concerning the use of chemical agents continue.
Glenn Wheeler 297. On April 22, 2003, while in his cell at Charlotte Correctional Institution, Plaintiff Wheeler spoke to Lieutenant Poccia and requested a property receipt for his radio that had been seized during a cell search. Lieutenant Poccia immediately became angry and told him to get on his bed and shut up. When Plaintiff Wheeler tried to explain his situation, Lieutenant Poccia informed him that he was going to be sprayed with chemical agents. 298. Lieutenant Poccia left to retrieve the canister of chemical agents and returned a few minutes later to spray Plaintiff Wheeler. After additional time had passed, Lieutenant Poccia returned again to spray even more chemical agents into Plaintiff Wheeler’s locked cell. 299. As a means of covering up this unnecessary and excessive use of chemical agents, Lieutenant Poccia wrote a disciplinary report charging Plaintiff Wheeler with disorderly conduct.
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300. Plaintiff Wheeler filed grievances at the informal, formal and appeal levels. His appeal to Defendant Crosby, dated May 21, 2003, was denied because the subject of his grievance was already under review by Departmental Staff. Plaintiff Wheeler has not been informed of the outcome of that review.
301. Plaintiff Wheeler is currently assigned to Close Management I status at Charlotte Correctional Institution. His release date is not until March, 2005, which means there is a significant possibility that he will again be subject to the unjustified use of chemical agents at some time during the course of his incarceration if the current policies, practices and customs concerning the us of chemical agents continue.
Reginald Williams 302. On October 24, 2001, while Plaintiff Williams was in his cell at Florida State Prison, Correctional Officers Rizer and Reynolds and Captain Riggs sprayed Plaintiff Williams with chemical agents in retaliation for litigation he had filed against prison officials. 303. Rizer sprayed the chemical agents directly into Plaintiff Williams's face, immediately blinding him and causing intense pain and burning. He could not rinse his eyes out because Rizer continued to spray chemical agents into the cell. 304. When Plaintiff Williams was finally allowed to shower, Rizer, Reynolds and Riggs intentionally turned on very hot water, which intensified the burning and pain to his skin and eyes. 305. Correctional Officer Rizer wrote a Use of Force Report, falsely stating that chemical agents were used because Plaintiff Williams was being disorderly and causing a
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disturbance on the wing. He also falsely stated that he only used a total of six one-second bursts of pepper spray.
306. In a further effort to cover up this improper use of chemical agents, Plaintiff Williams received a disciplinary report falsely charging that he was participating in a disturbance while inside his cell.
307. As a result of having chemical agents sprayed directly into his eyes, the vision in Plaintiff Williams's right eye has been permanently damaged and he now must wear glasses to see clearly.
308. Plaintiff Williams has exhausted all available administrative remedies regarding the use of chemical agents against him on October 24, 2001.
309. On July 7, 2002 and August 21, 2002, Plaintiff Williams was also sprayed with large quantities of chemical agents while quiet and locked in his cell.
310. Plaintiff Williams is currently assigned to Close Management I status at Santa Rosa Correctional Institution. Because he is serving a life sentence, there is a significant possibility he will again be subject to the unjustified use of chemical agents at some time during the course of his incarceration if the current policies, practices and customs concerning the use of gas continue.
CAUSE OF ACTION 311. The Eighth Amendment prohibits the use of any force, of any type, by Correctional Officers if the force is used maliciously and sadistically for the very purpose of causing harm and
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not in a good-faith effort to restore order or maintain discipline or for any other legitimate penological reason.
312. Employees of the Florida Department of Corrections, as alleged in this Complaint, routinely use chemical agents maliciously and sadistically for the very purpose of causing harm and not in a good-faith effort to restore order or maintain discipline or for any other legitimate penological reason.
313. Employees of the Florida Department of Corrections routinely use chemical agents as a means of inflicting corporal punishment on inmates.
314. Employees of the Florida Department of Corrections routinely use chemical agents to punish inmates for past misconduct.
315. Employees of the Florida Department of Corrections routinely use chemical agents on prisoners long after any misconduct has ceased and while the prisoners are quiet and compliant with all orders and where no force is necessary to maintain or restore order.
316. Employees of the Florida Department of Corrections routinely use chemical agents to retaliate for inmates’ lawful activities, such as seeking assistance, asking that staff follow the established rules, filing grievances, or otherwise complaining about their conditions of incarceration.
317. Employees of the Florida Department of Corrections routinely use chemical agents in situations where no use of force, of any kind, is necessary.
318. Employees of the Florida Department of Corrections routinely use chemical agents on inmates who suffer from physical disabilities or medical problems that make them especially
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vulnerable to serious harm as a result of being sprayed with chemical agents, without taking any precautions to alleviate the extreme health risks posed to these prisoners. Such disabilities and medical conditions include asthma, epilepsy, heart conditions, blindness, and burns from prior chemical agent exposure.
319. Employees of the Florida Department of Corrections routinely use chemical agents on inmates whose apparent misconduct is a direct result of their known mental health problems, including inmates who need immediate mental health services.
320. Employees of the Florida Department of Corrections routinely use chemical agents in dangerous quantities and in amount far more than necessary to control disruptive behavior.
321. The use of force by way of chemical agents, as alleged in this Complaint, is done as a matter of routine, and is permitted and encouraged, in accordance with the established policies, practices and customs of the Florida Department of Corrections.
322. The defendants, and other supervisory employees, routinely violate controlling constitutional standards by participating in, facilitating, encouraging, or acquiescing in the behavior of their subordinates and are fully aware that chemical agents are used maliciously and sadistically for the very purpose of causing harm and not in a good-faith effort to maintain or restore discipline, and with that knowledge, fail to take any corrective action.
323. Defendants Thompson, Lambdin, Petrovsky, and Whitehurst, ignore their duty to review requests made by their subordinates to use chemical agents and routinely authorize their use without regard to whether their use is appropriate, pursuant to the terms of Rule 33-602.210, F.A.C. and controlling constitutional law.
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324. Defendants Thompson, Lambdin, Petrovsky, and Whitehurst, ignore their duty to review the use of chemical agents after their use to insure that they were used in a manor consistent with Rule 33-602.210, F.A.C. and controlling constitutional law.
325. Defendants Thompson, Lambdin, Petrovsky, and Whitehurst, by failing to meet their responsibilities pursuant to Rule 33-602.210, F.A.C., facilitate, encourage, and acquiesce in the behavior of their subordinates, who routinely use of chemical agents maliciously and sadistically for the very purpose of causing harm and not in a good-faith effort to restore order or maintain discipline or for any other legitimate penological reason.
326. Defendants Crosby and Abdul-Wasi, by failing to meet their responsibilities pursuant to Rule 33-602.210, F.A.C., and the grievance process, facilitate, encourage, and acquiesce in the behavior of their subordinates, who routinely use chemical agents maliciously and sadistically for the very purpose of causing harm and not in a good-faith effort to restore order or maintain discipline or for any other legitimate penological reason.
327. The policies, practices and customs implemented or sanctioned by Defendant Crosby, and other supervisory staff, facilitate and encourage the excessive and unjustified use of chemical agents.
328. Defendants Thompson, Lambdin, Petrovsky, and Whitehurst have the ability to reduce the unjustified and excessive use of chemical agents by a variety of means, including but not limited to: (1) authorizing the use of chemical agents only after personally speaking with the prisoner, (2) supervising the employees responsible for using chemical agents to insure that they
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are only used when justified and as a last resort, and (3) disciplining employees that use chemical agents for unlawful reasons.
329. Defendants Thompson, Lambdin, Petrovsky, and Whitehurst have acted with deliberate indifference to the substantial likelihood that their subordinates will use chemical agents maliciously and sadistically for the very purpose of causing harm and not in a good-faith effort to restore order or maintain discipline or for any other legitimate penological reason.
330. Defendant Abdul-Wasi is aware of the great increase in the use of chemical agents and the corresponding increase in the number of complaints that chemical agents are being used without justification or to excess. Despite his knowledge, defendant Abdul-Wasi has failed to take even the most basic steps to meet his responsibility to investigate allegations of improper use of chemical agents and to take corrective action.
331. Defendant Abdul-Wasi, because of his intentional failure to meet his responsibilities, has acted with deliberate indifference to the substantial likelihood that Florida prisoners will be subjected to chemical agents maliciously and sadistically for the very purpose of causing harm and not in a good-faith effort to restore order or maintain discipline or for any other legitimate penological reason.
332. Defendant Abdul-Wasi has the ability to reduce the unjustified and excessive use of chemical agents by a variety of means, including but not limited to: (1) implementing meaningful investigation protocols to insure that all uses of chemical agents and all allegations of abuse are thoroughly and independently investigated, including but not limited to reviewing all videotapes and interviewing all witnesses in each case, (2) closely monitoring the use of
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chemical agents and allegations of abuse to insure that special investigations are triggered when the incidence of use of force and/or abuse complaints increase with regard to particular Florida Department of Corrections institutions or employees, and (3) collecting and preserving evidence.
333. Defendant Crosby is aware of the great increase in the use of chemical agents and the corresponding increase in the number of complaints that chemical agents are being used without justification or to excess. Despite his knowledge, and despite his responsibility as Secretary of the Florida Department of Corrections, Defendant Crosby has failed to take any steps to meet his responsibility to take those measures within his power and control to insure that his subordinates do not use chemical agents maliciously and sadistically for the very purpose of causing harm and not in a good-faith effort to restore order or maintain discipline or for any other legitimate penological reason.
334. Defendant Crosby has the ability to end the unjustified and excessive use of chemical agents by a variety of means, including but not limited to: (1) requiring all nonspontaneous uses of chemical agents to be videotaped, (2) abolishing all non-spontaneous uses of chemical agents on S-3 inmates, (3) abolishing all non-spontaneous uses of chemical agents on inmates with medical conditions which increase the risk of harm if chemical agents are used, (4) training staff in the use of techniques to calm inmates who are upset without the need for any kind of force, (5) requiring the use of staff specially trained to defuse confrontations prior to the non-spontaneous use of chemical agents, and (6) adequate and meaningful review and monitoring of all uses of chemical agents.
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335. Defendant Crosby, because of his intentional failure to meet his responsibilities, has acted with deliberate indifference to the substantial likelihood that Florida prisoners will be subjected to chemical agents maliciously and sadistically for the very purpose of causing harm and not in a good-faith effort to restore order or maintain discipline or for any other legitimate penological reason.
336. By routinely permitting the use of chemical agents maliciously and sadistically for the very purpose of causing harm and not in a good-faith effort to restore order or maintain discipline or for any other legitimate penological reason, Defendants violate the rights of the Plaintiffs to be free from cruel and unusual punishment as guaranteed by the Eighth Amendment, made applicable to the States by the Fourteenth Amendment, of the Constitution of the United States.
337. The unjustified or excessive use of chemical agents is so pervasive that there is an extremely high likelihood that the named Plaintiffs and the members of the class will be subject to this unconstitutional practice in the future.
338. Unless enjoined from doing so, Defendants will continue to willfully violate the Eighth Amendment rights of the Plaintiffs and the Plaintiff class. These continuing violations constitute an irreparable injury for which Plaintiffs have no adequate remedy at law.
WHEREFORE, Plaintiffs request that this Court: A. Certify this action as a class action pursuant to Rule 23(b)(2) of the Federal
Rules of Civil Procedure.
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B. Declare that the unjustified and excessive use of chemical agents, as alleged in this Complaint, violates the Eighth and Fourteenth Amendments to the Constitution of the United States.
C. Require the defendants to submit a plan to this Court for approval which will, to the extent possible, prevent chemical agents from being used maliciously and sadistically for the very purpose of causing harm and not in a good-faith effort to restore order or maintain discipline or for any other legitimate penological reason.
D. Require that the plan submitted to the Court for approval make proper provision to prevent chemical agents being used in controlled situations where their use would pose a risk to the mental or physical health of the prisoner.
E. Require that the plan submitted to the Court for approval require that all nonspontaneous uses of chemical agents to be videotaped.
F. Require that the plan submitted to the Court for approval abolish all nonspontaneous uses of chemical agents on S-3 inmates.
G. Require that the plan submitted to the Court for approval abolish all nonspontaneous uses of chemical agents on inmates with medical conditions which increase the risk of harm if chemical agents are used.
H. Require that the plan submitted to the Court for approval include provision for the comprehensive training staff in the use of techniques to calm inmates who are upset without the need for any kind of force.
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I. Require that the plan submitted to the Court for approval require the use of staff specially trained to defuse confrontations prior to the non-spontaneous use of chemical agents.
J. Require that the plan submitted to the Court for approval include provision for adequate and meaningful review and monitoring of all uses of chemical agents.
K. Require that the plan submitted to the Court for approval bar the use chemical agents in controlled situations where the prisoner’s in-cell misconduct is a result of the mental health status of the prisoner.
L. Require that the plan submitted to the Court for approval bar the use of CS tear gas and CN tear gas in enclosed spaces such as the segregated housing units.
M. Require that the plan submitted to the Court require the implementation of proper decontamination procedures to reduce the pain and chance of injury after exposure to chemical agents, including but not limited to, access to fresh outside air, cold showers lasting at least 15 minutes, the use of specialized skin products designed for chemical decontamination, and ventilation of building with fresh air.
N. Require that the plan submitted to the Court require the use of meaningful deescalation techniques to insure that chemical agents are truly a last resort, including but not limited to, counseling by mental health staff and high-level supervisors.
O. Enter permanent injunctive relief enjoining the defendants, their successors in office, and their servants, agents and employees, and those acting in concert with them, from
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failing to properly supervise, review and investigate the actions of their subordinates when their

subordinates use chemical agents.

P. Award attorneys' fees and costs pursuant to 42 U.S.C. § 1988.

Q. Grant Plaintiffs such other and further relief as the Court may deem just and

equitable.

Respectfully submitted,

Lisa White Shirley, Esq.

.

Christopher M. Jones, Esq.

Florida Institutional Legal Services 1010-B NW 8th Avenue Gainesville, Florida 32601 352-264-1569 352-271-4366 (Fax)

and

Peter M. Siegel, Esq. Randall C. Berg, Esq.

Florida Justice Institute, Inc. 2870 Wachovia Financial Center 200 South Biscayne Boulevard Miami, Florida 33131-2310 305-358-2081 305-358-0910 (Fax)

Attorneys for Plaintiffs

______________________________ By: Lisa White Shirley, Esq.
Florida Bar No. 478725
and
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Of Counsel Rhonda Brownstein, Esq. Southern Poverty Law Center 400 Washington Avenue Post Office Box 2087 Montgomery, AL 36102-0287 (334) 956-8200 (334) 956-8481 (Fax)

______________________________ By: Peter M. Siegel, Esq.
Florida Bar No. 227862 Trial Counsel

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 </s> Case 2:03-cv-00526-JES-DNF Document 102 Filed 04/21/2004 Page 1 of 5

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA
FT. MYERS DIVISION
DANNY E. BROWN, SYLVESTER BUTLER, KENNETH CAUDILL, SAMMY J. DOUSE, WILLIE ENGLISH, SIDNEY EVERETT, KELVIN FRAZIER, MORRIS J. GILBERT, JIJUAN T. HAGANS, TROY D. HALL, BENJAMIN LAFLOWER, CURT MASSIE, ANTONIO J. MCCLOUD, LAMAR A. MIFFIN, MICHAEL L. MONTGOMERY, KUNTA PORTER, ISSAC SHARPE, SAMUEL STROTHER, JEREMIAH THOMAS, EUGENE E. ULRATH, GLENN WHEELER, REGINALD WILLIAMS,

S0
2064 APR 21 AM II: 16
J, .1 Mlu",.. _ . _.: 1:"'l.iKIDA
FT. MYc!;;). ~LORIOA

Plaintiffs,

-vs-

Case No. 2:03-cv-526-FtM-29DNF

SECRETARY, DEPARTMENT OF CORRECTIONS, GERALD H. ABDUL· WASI, JOSEPH THOMPSON, CHESTER LAMBIN, JOSEPH PETROVSKY, . WENDELL WHITEHURST,

Defendants. __________________________~I

ORDER
This cause came on for consideration on the following motion(s) filed herein:

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Case 2:03-cv-00526-JES-DNF Document 102 Filed 04/21/2004 Page 2 of 5

MOTION:

PLAINTIFFS' SECOND MOTION TO COMPEL PRODUCTION OF DOCUMENTS AND THINGS FROM DEFENDANTS (Doc. No. 80)

FILED:

March 2, 2004

THEREON it is ORDERED that the motion is GRANTED.

The Plaintiffs are requesting fixed camera digital recordings, VHS fixed camera recordings and VHS hand-held camera recordings of the incidents that occurred at 8 institutions evidencing the non-spontaneous chemical use of force recorded on December 6, 2003, through the date of the Defendants' response. The Court ruled on similar requests based on Plaintiffs' first Motion to Compel Production ofDocuments and Things from Defendants (Doc. 71). The Defendants object to producing these recordings for individuals other than the named Plaintiffs in this action. The Court permitted the production of these recordings in its other Order. "Parties may obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party. .. Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence." Fed.R.Civ.P.26(b)(l) The Court agrees with the Plaintiffs that these recordings are central to the issues raised in this action. Pursuant to Rule 34, Fed.R.Civ.P., the Defendants' obligation regarding these tapes is to make them available for inspection. The Defendants are not obligated to provide copies, however, if Plaintiffs request copies, the Plaintiffs may have copies made at their own expense.
The Defendants were also concerned that by allowing Plaintiffs and others access to these tapes, that the safety of the officers would be in jeopardy, and the security procedures at the institutions would be jeopardized. The Plaintiffs know the identities of the correction officers
-2-

Case 2:03-cv-00526-JES-DNF Document 102 Filed 04/21/2004 Page 3 of 5
involved and know the procedures that are involved in the non-spontaneous chemical use of force based on their participation in these incidents. This information should not be disseminated to or available to the public in general. The Court ordered the parties to fashion a confidentiality agreement which allows the appropriate individuals such as Plaintiffs', Plaintiffs' counsel, and experts to view the recordings and prohibits the Plaintiffs from allowing others to view the recordings. The Court also limited the Plaintiffs to making one copy of each of the recordings.
IT IS FURTHER ORDERED: After the parties enter into a confidentiality agreement concerning the dissemination of the recordings and photographs the Defendants shall make the recordings available for Plaintiffs to view and make one copy of them thereafter.
sr DONE and ORDERED in Chambers in Ft. Myers, Florida this ~I day ofApril, 2004.

Copies furnished to: Counsel of Record Unrepresented Parties

UNITED STATES MAGISTRATE JUDGE

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Case 2:03-cv-00526-JES-DNF Document 102 Filed 04/21/2004 Page 4 of 5

Date Printed: 04/21/2004

F I L E COP Y

Notice sent to:
Lisa White Shirley, Esq. Florida Institutional Legal Services, Inc. 1010-B NW 8th Ave. Gainesville, FL 32601-4969
2:03-cv-00526 sll
Christopher M. Jones, Esq. Florida Institutional Legal Services, Inc. 1010-B NW 8th Ave. Gainesville, FL 32601-4969
2:03-cv-00526 sll
Peter Michael Siegel, Esq. Florida Justice Institute, Inc. 200 S. Biscayne Blvd., Suite 2870 Miami, FL 33131-2309
2:03-cv-00526 sll
Randall Challen Berg Jr., Esq. Florida Justice Institute, Inc. 200 S. Biscayne Blvd., Suite 2870 Miami, FL 33131-2309
2:03-cv-00526 sll
Rhonda Brownstein, Esq. Southern Poverty Law Center 400 Washington Ave. PO Box 2087 Montgomery, AL 36102-0287
2:03-cv-00526 sll
Denis Allen Dean, Esq. Attorney General's Office The Capitol, PL-01 Tallahassee, FL 32399-1050
2:03-cv-00526 sll
Kathleen M. Savor, Esq. Attorney General's Office Civil Division 110 S.E. 6th St., 10th Floor Ft. Lauderdale, FL 33301
2:03-cv-00526 sll

Case 2:03-cv-00526-JES-DNF Document 102 Filed 04/21/2004 Page 5 of 5
Richard Scott Doss Santa Rosa Correctional Institution 5850 E. Milton Rd. Milton, FL 32583
2:03-cv-00526 sll

 </s> Case 2:03-cv-00526-JES-DNF Document 103 Filed 04/23/2004 Page 1 of 10

~,~ r " f - j

UNITED STATES DISTRICT COURT·

'rfR

MIDDLE DISTRICT OF FLORIDA
FT. MYERS DIVISION
DANNY E. BROWN, SYLVESTER BUTLER, KENNETH CAUDILL, SAMMY J. DOUSE, WILLIE ENGLISH, SIDNEY EVERETT, KELVIN FRAZIER, MORRIS J. GILBERT, JIJUAN T. HAGANS, TROY D. HALL, BENJAMIN LAFLOWER, CURT MASSIE, ANTONIO J. MCCLOUD, LAMAR A. MIFFIN, MICHAEL L. MONTGOMERY, KUNTA PORTER, ISSAC SHARPE, SAMUEL STROTHER, JEREMIAH THOMAS, EUGENE E. ULRATH, GLENN WHEELER, REGINALD WILLIAMS,

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Plaintiffs,

-vs-

Case No. 2:03-cv-526-FtM-29DNF

SECRETARY, DEPARTMENT OF CORRECTIONS, GERALD H. ABDULWASI, JOSEPH THOMPSON, CHESTER LAMBIN, JOSEPH PETROVSKY, WENDELL WHITEHURST,

Defendants.
--------------------------~/
ORDER

This cause came on for consideration on the following motion(s) filed herein:

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Case 2:03-cv-00526-JES-DNF Document 103 Filed 04/23/2004 Page 2 of 10

MOTION:

PLAINTIFFS' MOTION TO COMPEL ANSWERS TO PLAINTIFFS' CLASS ACTION INTERROGATORIES (Doc. No. 74)

FILED:

February 4, 2004

THEREON it is ORDERED that the motion is GRANTED.

The Plaintiffs assert that the Defendants failed to properly respond to Plaintiffs' Class Action Interrogatories served on November 21, 2003. The Plaintiffs claim that the Defendants only provided responsive answers to 7 interrogatories, objected to 17 interrogatories, and provided one nonresponsive answer. The Defendants responded that the Interrogatory responses should be limited to the named Plaintiffs in that the motion for class certification has not been filed and a class has not been certified. The Defendants also raise the objection that much of the information requested is confidential health information and the Plaintiffs have not provided the proper authorization for its release. The Defendants claim the computerized Use ofForce Reports and the inmate grievances that the Plaintiffs are seeking are not differentiated on the computer based on spontaneous use of force versus non-spontaneous use of force. Therefore, the Defendants would have to look at each Use of Force Report as well as each grievance to determine ifit was a non-spontaneous use offorce. Further, the Defendants assert that the Use ofForce Reports were made available to the Plaintiffs on February 5,2004, for inspection and copying.

Interrogatory No. 1 provides as follows:
For each prison facility operated by the Florida Department of Corrections where inmates are housed in any type of segregated housing, set forth by each facility, as of the date you answer these interrogatories:
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A. The number of inmates housed at each facility in Maximum Management and the arithmetic mean average maximum Management population on a monthly basis for the previous two years.
B. The number of inmates housed in each facility in Close Management and the arithmetic mean average Close Management population on a monthly basis for the previous two years.
C. The number ofinmates housed at each facility in Disciplinary Confinement and the arithmetic mean average Disciplinary Confinement population on a monthly basis for the previous two years.
D. The number of inmates housed at each facility in administrative confinement and the arithmetic mean average Administrative Confinement population on a monthly basis for the previous two years.
The Defendants did not object to this Interrogatory and provided some information in chart
form. The information provided did not fully respond to the Interrogatory as propounded. The
Defendants shall supplement their answer and fully respond to Interrogatory No.1 within twenty (20)
days from the date ofthis Order.
Interrogatory No. 21 provides as follows:
For each prison facility operated by the Florida Department of Corrections where inmates are housed in any type of segregated housing, set forth by each facility:
A. The number oftimes inmates housed in Maximum Management have been the subject of a non-spontaneous use of chemical agents during the period January 1, 2001 to the present.
B. The number of times inmates housed in Close Management have been the subject ofa non-spontaneous use ofchemical agents during the period January 1,2001 to the present.
C. The number of times inmates housed in Disciplinary Confinement have been the subject of a non-spontaneous use of chemical agents during the period January 1, 2001 to the present.
D. The number oftimes inmates housed in Administrative Confinement have been the subject of a non-spontaneous use of chemical agents during the period January 1, 2001 to the present.
1 While the motion included the supposed language ofthe interrogatories, the interrogatories were not accurately quoted. Therefore, the Court used the wording from the actual interrogatories which were attached to Doc. 93.
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The Defendants object arguing that this Interrogatory is overly broad and unduly burdensome. The Defendants assert that to respond to this Interrogatory they would have to identify every inmate that was housed in Maximum Management, Close Management, Disciplinary Confinement, and Administrative Confinement, and then determine the current location of each of these inmates, and then direct staff at the institution to determine the date that the inmate was subjected to a use of chemical agents, and then determine if it was non-spontaneous. Federal Rule of Civil Procedure 26(b)(2) permits a Court to limit discovery is the burden or expense of the proposed discovery
outweighs its benefit. See a/so, Allstate Live Ins. Co. v. The Estate ofMiller, 2004 WL 141698, *1
(S.D. Fla. 2004) Although in the instant case the discovery requested is burdensome, the necessity ofthis discovery outweighs the burden to the Defendants. The Plaintiffs are in need ofthis discovery which is statistical in nature for class certification purposes. Therefore, the Defendants are required to provide this information within thirty (30) days from the date of this Order.
Interrogatory No.3 provides as follows: Of the inmates housed in Maximum Management during the period January 1,2001 to the date on which you answer these interrogatories who have been the subject ofthe non-spontaneous use ofchemical agents, set forth the number ofthose inmates whose psychological grade was S-3 at the time chemical agents were used. Interrogatory No.4 provides as follows: Of the inmates housed in Close Management during the period January 1,2001 to the date on which you answer these interrogatories who have been the subject ofthe nonspontaneous use of chemical agents, set forth the number of those inmates whose psychological grade was S-3 at the time chemical agents were used. Interrogatory No.5 provides as follows: Of the inmates housed in Administrative Confinement during the period January 1, 2001 to the date on which you answer these interrogatories who have been the subject
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of the non-spontaneous use of chemical agents, set forth the number of those inmates whose psychological grade was S-3 at the time chemical agents were used.
Interrogatory No.6 provides as follows:
Ofthe inmates housed in Disciplinary Confinement during the period January 1, 2001 to the date on which you answer these interrogatories who have been the subject ofthe non-spontaneous use ofchemical agents, set forth the number ofthose inmates whose psychological grade was S-3 at the time chemical agents were used.
Interrogatory No.7 provides as follows:
Of the inmates housed in Maximum Management during the period January 1, 2001 to the date on which you answer these interrogatories who have been the subject ofthe non-spontaneous use ofchemical agents, set forth the number ofthose inmates whose medical history at the time chemical agents were used included a diagnosis ofany type of respiratory or pulmonary disease, seizure disorder or cardiac disorder or disease.
Interrogatory No.8 provides as follows:
Ofthe inmates housed in Close Management during the period January 1, 2001 to the date on which you answer these interrogatories who have been the subject ofthe nonspontaneous use of chemical agents, set forth the number of those inmates whose medical history at the time chemical agents were used included a diagnosis ofany type of respiratory or pulmonary disease, seizure disorder or cardiac disorder or disease.
Interrogatory No.9 provides as follows:
Of the inmates housed in Administrative Confinement during the period January 1, 2001 to the date on which you answer these interrogatories who have been the subject ofthe non-spontaneous use ofchemical agents, set forth the number ofthose inmates whose medical history at the time chemical agents were used included a diagnosis of any type of respiratory or pulmonary disease, seizure disorder or cardiac disorder or disease.
Interrogatory No.1 0 provides as follows:
Ofthe inmates housed in Disciplinary Confinement during the period January 1, 200 I to the date on which you answer these interrogatories who have been the subject ofthe non-spontaneous use ofchemical agents, set forth the number ofthose inmates whose medical history at the time chemical agents were used included a diagnosis ofany type of respiratory or pulmonary disease, seizure disorder or cardiac disorder or disease.
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Interrogatory No. 11 provides as follows:
Of the inmates housed in Maximum Management during the period January 1, 2001 to the date on which you answer these interrogatories who have been the subject ofthe non-spontaneous use of chemical agents, how many have been assigned to CMHI, a CSD, a TCD, or an SOS cell, within a period beginning six months before the chemical agents were used and ending 6 months after chemical agents were used.
Interrogatory No. 12 provides as follows:
Ofthe inmates housed in Close Management during the period January 1, 2001 to the date on which you answer these interrogatories who have been the subject ofthe nonspontaneous use ofchemical agents, how many have been assigned to CMHI, a CSU, a TCD, or an SOS cell, within a period beginning six months before the chemical agents were used and ending 6 months after chemical agents were used.
Interrogatory No. 13 provides as follows:
Of the inmates housed in Administrative Confinement during the period January 1, 2001 to the date on which you answer these interrogatories who have been the subject of the non-spontaneous use of chemical agents, how many have been assigned to CMHI, a CSU, a TCU, or an SOS cell, within a period beginning six months before the chemical agents were used and ending 6 months after chemical agents were used.
InterrogatoryNo. 14 provides as follows:
Ofthe inmates housed in Disciplinary Confinement during the period January 1, 2001 to the date on which you answer these interrogatories who have been the subject ofthe non-spontaneous use of chemical agents, how many have been assigned to CMHI, a CSD, a TCU, or an SOS cell, within a period beginning six months before the chemical agents were used and ending 6 months after chemical agents were used.
Interrogatory No. 15 provides as follows:
How many inmates who were subjected to the non-spontaneous use ofchemical agents during the period January 1,2001 to the date of your answer to these interrogatories suffered chemical bums as a result of the use of the chemical agents?
Interrogatory No. 16 provides as follows:
How many inmates who were subjected to the non-spontaneous use ofchemical agents during the period January 1, 2001 to the date of your answer to these interrogatories
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Case 2:03-cv-00526-JES-DNF Document 103 Filed 04/23/2004 Page 7 of 10
suffered any type of medical problem other than chemical bums as a result of the use of the chemical agents? The Defendants objected to these interrogatories as unduly burdensome, and also requiring the production ofconfidential protected health information without appropriate authorization and release. The Defendants cite to the Health Insurance Portability and Accountability Act of 1996 (HIPPA) as requiring releases prior to providing an individual's protected health information. These interrogatories are requesting statistical information and not an individual's protected health information. Again, although the Court recognizes that there is a burden on the Defendants, the necessity of this information for the Plaintiffs to obtain class certification outweighs the burden. Therefore, the Defendants are required to provide this information within thirty (30) days from the date of this Order. Interrogatory No. 21 provides as follows: Set forth the number ofgrievances written by inmates who, during the period January 1,2001 to the date ofyour response to these Interrogatories, used the grievance process as a result of being subjected to the non-spontaneous use of chemical agents. Interrogatory No. 22 provides as follows: Of the number of grievances listed in your response to the above Interrogatory, set forth the number ofgrievances which were approved based on a finding that chemical agents were used non-spontaneously without justification or to excess. The Defendants object to this interrogatory as unduly burdensome. The Defendants assert that their staff would have to review manually 12,605 grievances to determine the number that involved the non-spontaneous use of chemical agents. The Court has weighed the burden to the Defendants, and finds that the necessity to the Plaintiffs of this information for class certification outweighs the
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Case 2:03-cv-00526-JES-DNF Document 103 Filed 04/23/2004 Page 8 of 10

burden to the Defendants. Therefore, the Defendants are required to provide this infonnation within

thirty (30) days from the date of this Order.

DONE and ORDERED in Chambers in Ft. Myers, Florida this ~ day of April, 2004.

D ~ O ~Ja~ -~

Copies furnished to: Counsel of RecordlUnrepresented Parties

UNITED STATES MAGISTRATE JUDGE

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Case 2:03-cv-00526-JES-DNF Document 103 Filed 04/23/2004 Page 9 of 10

Date Printed: 04/23/2004

F I L E COP Y

Notice sent to:
Lisa White Shirley, Esq. Florida Institutional Legal Services, Inc. 1010-B NW 8th Ave. Gainesville, FL 32601-4969
2:03-cv-00526 lap
Christopher M. Jones, Esq. Florida Institutional Legal Services, Inc. 1010-B NW 8th Ave. Gainesville, FL 32601-4969
2:03-cv-00526 lap
Peter Michael Siegel, Esq. Florida Justice Institute, Inc. 200 S. Biscayne Blvd., Suite 2870 Miami, FL 33131-2309
2:03-cv-00526 lap
Randall Challen Berg Jr., Esq. Florida Justice Institute, Inc. 200 S. Biscayne Blvd., Suite 2870 Miami, FL 33131-2309
2:03-cv-00526 lap
Rhonda Brownstein, Esq. Southern Poverty Law Center 400 Washington Ave. PO Box 2087 Montgomery, AL 36102-0287
2:03-cv-00526 lap
Denis Allen Dean, Esq. Attorney General's Office The Capitol, PL-01 Tallahassee, FL 32399-1050
2:03-cv-00526 lap
Kathleen M. Savor, Esq. Attorney General's Office Civil Division 110 S.E. 6th St., 10th Floor Ft. Lauderdale, FL 33301
2:03-cv-00526 lap

Case 2:03-cv-00526-JES-DNF Document 103 Filed 04/23/2004 Page 10 of 10
Richard Scott Doss Santa Rosa Correctional Institution 5850 E. Milton Rd. Milton, FL 32583
2:03-cv-00526 lap

 </s> Case 2:03-cv-00526-JES-DNF Document 104 Filed 04/23/2004 Page 1 of 14

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DANNY E. BROWN, SYLVESTER BUTLER, KENNETH CAUDILL, SAMMY J. DOUSE, WILLIE ENGLISH, SIDNEY EVERETT, KELVIN FRAZIER, MORRIS J. GILBERT, JIJUAN T. HAGANS, TROY D. HALL, BENJAMIN LAFLOWER, CURT MASSIE, ANTONIO J. MCCLOUD, LAMAR A. MIFFIN, MICHAEL L. MONTGOMERY, KUNTA PORTER, ISSAC SHARPE, SAMUEL STROTHER, JEREMIAH THOMAS, EUGENE E. ULRATH, GLENN WHEELER, REGINALD WILLIAMS,

Plaintiffs,

-vs-

Case No. 2:03-cv-526-FtM-29DNF

SECRETARY, DEPARTMENT OF CORRECTIONS, GERALD H. ABDULWASI, JOSEPH THOMPSON, CHESTER LAMBIN, JOSEPH PETROVSKY, WENDELL WHITEHURST,

Defendants.
--------------------------~/
ORDER

This cause came on for consideration on the following motion(s) filed herein:

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Case 2:03-cv-00526-JES-DNF Document 104 Filed 04/23/2004 Page 2 of 14

MOTION: PLAINTIFFS' MOTION TO COMPEL PRODUCTION OF DOCUMENTS AND THINGS FROM DEFENDANTS (Doc. No. 71)

FILED:

January 29, 2004

THEREON it is ORDERED that the motion is GRANTED in part and DENIED in part.

The Plaintiffs assert that the Defendants have failed to properly respond to Plaintiffs' First
Request for Production of Documents which was served on November 21,2003. The Defendants
responded that they had amended their response and were providing more documents. The Court
required the Plaintiffs to file the Requests for Production as well as notify the Court if any of the
issues raised were resolved. (See, Doc. 92 and 93 filed March 19,2004). In the Notice (Doc. 92), the
Plaintiffs indicated that none of the issues raised were resolved.
Request No. 1 provides as follows:
All Fixed Camera Digital Recording evidencing the non-spontaneous chemical use of force incidents currently in existence, and all Fixed Camera Digital Recording evidencing the non-spontaneous chemical use of force incidents recorded at any time during the pendency of this litigation. This request applies to all recordings made in any type of confinement unit at Florida State Prison, Santa Rosa Correctional Institution and Charlotte Correctional Institution. It also applies to Union Correctional Institution (except the Northeast Unit), Lowell Correctional Institution, Washington Correctional Institution, Columbia Correctional Institution and Taylor Correctional Institution if those prisons used fixed camera digital recordings.
The recording time frame for this request is from the time when the incident which allegedly justified the non-spontaneous use of force began until all decontamination procedures are complete.

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Request No.2 provides as follows:
All VHS Fixed Camera evidencing the non-spontaneous chemical use offorce incidents currently in existence, and all VHS Fixed Camera Digital Recording evidencing the non-spontaneous chemical use of force incidents recorded at any time during the pendency of this litigation. This request applies to all recordings made in any type of confinement unit at Florida State Prison, Santa Rosa Correctional Institution and Charlotte Correctional Institution. It also applies to Union Correctional Institution (except the Northeast Unit), Lowell Correctional Institution, Washington Correctional Institution, Columbia Correctional Institution and Taylor Correctional Institution if those prisons used fixed camera digital recordings.
The recording time frame for this request is from the time when the incident which allegedly justified the non-spontaneous use of force began until all decontamination procedures are complete.
Request No.3 provides as follows:
All VHS hand-held Camera recordings evidencing the non-spontaneous chemical use of force incidents currently in existence, and all VHS Hand-held Recording evidencing the non-spontaneous chemical use of force incidents recorded at any time during the pendency ofthis litigation. This request applies to all recordings made in any type ofconfinement unit at Florida State Prison, Santa Rosa Correctional Institution and Charlotte Correctional Institution. It also applies to Union Correctional Institution (except the Northeast Unit), Lowell Correctional Institution, Washington Correctional Institution, Columbia Correctional Institution and Taylor Correctional Institution if those prisons used fixed camera digital recordings.
The recording time frame for this request is from the time when the camera became operational until the taping ceased.
The Defendants responded that they object to the production ofcertain documents which were
in existence prior to December 27, 2001 due to other pending litigation. In Plaintiffs' Motion to
Compel, however, Plaintiffs stated that they wanted recordings that were taken immediately before
and during the pendency of this litigation. This litigation commenced on September 12,2003. Any
recordings from December 27,2001, are too remote in time to be relevant to this action, and the
Plaintiffs are not asking for any such documents. Therefore, this objection is moot.
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In their Response to the Request, the Defendants state that they are conducting an inventory and catalog of non-spontaneous chemical use of force at these institutions that were in existence as of December 5, 2003, will provide the Plaintiffs with these records, and the recording that the Plaintiffs choose to view will be made available to them. The Plaintiffs claim that the inventory and/or catalog were never provided. Further, the Defendants will make the recordings available for viewing but object to the recordings revealing the faces and/or identities of the correctional officers or that reveal security procedures on the grounds. The Defendants claim that the identities of the correctional officers and the security procedures are exempt from public inspection under Chapter 119 and §945.l0(l)(e) and (h) Fla. Stat. arguing that disclosure would present a threat to the safety of the staff and the security of the institutions.
The offer to provide a catalog or inventory of the tapes will be helpful to the Plaintiffs, however, it is clear that the Plaintiffs are requesting that they be permitted to view and copy all ofthe tapes. "Parties may obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party . .. Relevant information need not be admissible at the trial ifthe discovery appears reasonably calculated to lead to the discovery ofadmissible evidence." Fed.R.Civ.P.26(b)(1) The Court agrees with the Plaintiffs that these recordings are central to the issues raised in this action. Pursuant to Rule 34, Fed.R.Civ.P., the Defendants' obligation regarding these tapes is to make them available for inspection. The Defendants are not obligated to provide copies, however, if Plaintiffs request copies, the Plaintiffs may have copies made at their own expense.
The Defendants' next concern is that by allowing Plaintiffs and others access to these tapes, that the safety of the officers would be in jeopardy, and the security procedures at the institutions would bejeopardized. The Defendants cite to Fla. Stat. §119.10, which provides that information held
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by the Department ofCorrections is confidential ifwhen released wouldjeopardize a person's safety, or is exempt from public disclosure. See, Fla.Stat. §119.10(1)(e) and (h). In the instant case, however, the Plaintiffs know the identities ofthe correction officers involved and know the procedures that are involved in the non-spontaneous chemical use of force based on their participation in these incidents. This information should not be disseminated to or available to the public in general. The parties can fashion a confidentiality agreement which allows the appropriate individuals such as Plaintiffs', Plaintiffs' counsel, and experts to view the recordings and prohibits the Plaintiffs from allowing others to view the recordings. The Plaintiffs may also be limited to making one copy of each of the recordings.
Request No.4 provides as follows: Any still pictures taken during the course of the use of the chemical agents or
to document the existence or non-existence of injuries as a result of the use of chemical agents, for pictures taken during the period January 1,2000 to the date of your response to this Request to Produce. The Defendants object to the production of the pictures as overly broad and unduly burdensome. This Request would require them to review every inspector general investigation concerning the use of a chemical agent for a four-year period of time. Nonetheless, the Defendants did examine the inspector general investigations from January 1, 2000 through December 31, 2003, of the named Plaintiffs and found that none of the still pictures documented the existence or nonexistence ofinjuries as a result ofthe use ofchemical force on the named Plaintiffs. The Plaintiffs argue that the response should not be limited to the named Plaintiffs only. The Plaintiffs assert that these photographs are necessary for class certification. Discovery of unnamed members of the proposed class requires a demonstration of need. Manuel for Complex Litigation (Fourth), §21.14
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(2004). The Plaintiffs have not shown any particularized need for these photographs of unnamed
potential class members prior to class certification. The Court finds that the Defendants' response is
sufficient.
Request No.5 provides as follows:
All Use of Force Reports evidencing the non-spontaneous use of chemical agents at Florida State Prison, Santa Rosa Correctional Institution, Charlotte Correctional Institution, Union Correctional Institution (except the Northeast Unit), Lowell Correctional Institution, Washington Correctional Institution, Columbia Correctional Institution and Taylor Correctional Institution, during the period January 1, 2002 to the date of your response to this Request to Produce.
Request No.6 provides as follows:
All Incident Reports written as part of a non-spontaneous use of chemical agents incident at Florida State Prison, Santa Rosa Correctional Institution, Charlotte Correctional Institution, Union Correctional Institution (except the Northeast Unit), Lowell Correctional Institution, Washington Correctional Institution, Columbia Correctional Institution and Taylor Correctional Institution during the period January 1, 2002 to the date of your response to this Request to Produce.
Request No. 7 provides as follows:
All Investigative Reports prepared by the Office of the Inspector General during the period January 1, 2002 to the date of your response to this Request to Produce, with reference to the non-spontaneous use of chemical agents.
Request No.8 provides as follows:
All reviews by the Office of the Inspector General, during the period January 1,2002 to the date of your response to this Request to produce, with reference to the non-spontaneous use of chemical agents.
The Plaintiffs' Notice states that the Defendants have produced the use of force reports and
investigations regarding the chemical agents at eight prisons for the named Plaintiffs only. In response
to Request No.5, the Defendants also agreed to produce a printout that identifies all non-spontaneous
chemical agent use offorce incidents. The Plaintiffs have not shown any particularized need for these
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Case 2:03-cv-00526-JES-DNF Document 104 Filed 04/23/2004 Page 7 of 14
documents of unnamed potential class members prior to class certification. The Court finds that the
Defendants' response is sufficient as to the documents the Defendants have produced.
Request No. 31 provides as follows:
Copies of all correspondence, including E-Mail correspondence, sent to staff at Florida State Prison, Santa Rosa Correctional Institution, Charlotte Correctional Institution, Union Correctional Institution (except the Northeast Unit), Lowell Correctional Institution, Washington Correctional Institution, Columbia Correctional Institution and Taylor Correctional Institution by staffat the Central Office and which, in any way, concerns any aspect of the non-spontaneous use of chemical agents, and was sent during the period January 1, 1999 to the date ofyour response to this Request to Produce.
Request No. 32 provides as follows:
Copies of all correspondence, including E-Mail correspondence, sent to staff at Florida State Prison, Santa Rosa Correctional Institution, Charlotte Correctional Institution, Union Correctional Institution (except the Northeast Unit), Lowell Correctional Institution, Washington Correctional Institution, Columbia Correctional Institution and Taylor Correctional Institution by staff at the Regional Office and which, in anyway, concerns any aspect ofthe non-spontaneous use ofchemical agents, and was sent during the period January 1, 1999 to the date of your response to this Request to Produce.
Request No. 33 provides as follows:
Copies of all correspondence, including E-Mail correspondence, sent to staff at Florida State Prison, Santa Rosa Correctional Institution, Charlotte Correctional Institution, Union Correctional Institution (except the Northeast Unit), Lowell Correctional Institution, Washington Correctional Institution, Columbia Correctional Institution and Taylor Correctional Institution to staffat the Central Office and which, in any way, concerns any aspect of the non-spontaneous use of chemical agents, and was sent during the period January 1, 1999 to the date ofyour response to this Request to Produce.
The Defendants provided responsive documents from 2001 forward but objected to the
production of documents from January 1999 to 2001. The Plaintiffs assert that the use of chemical
agents began to increase in the year 1999, and the Defendants should be required to produce
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Case 2:03-cv-00526-JES-DNF Document 104 Filed 04/23/2004 Page 8 of 14
documents beginning in that year. The Defendants have simply asserted that this production is overly broad and unduly burdensome without providing the Court with anyjustification for these objections. The Court overrules these objections and finds that the Defendants shall produce documents responsive to these Requests from the years 1999 to 2000.
Request No. 37 provides as follows: All documents which inventory the use of chemical agents during the period
January 1,2000 to the date of your response to this Request to Produce. Request No. 38 provides as follows:
All purchase orders, or other documents, which evidence the purchase of chemical agents for use by the Florida Department of Corrections during the period January 1, 2000 to the date of your response to this Request to Produce. The Defendants did provide two blank forms to the Plaintiffs in response. The Defendants are objecting to the production ofthese documents as overly broad, unduly burdensome and not relevant. The Plaintiffs agreed to limit these Requests to the eight institutions. The Plaintiffs argue that they have alleged that the Defendants use an excessive quantity of chemical agents and one method to determine the quantity is to review the inventory and purchase orders for the chemicals. The Court finds that this request is relevant and appears reasonably calculated to lead to the discovery of admissible evidence. Fed.R.Civ.P.26(b)(1). The Defendants have failed to show how these Requests are overly broad if limited to the eight institutions or how these Requests are unduly burdensome.
Request No. 13 provides as follows: All Regulations, Policy and Procedures Directives, Internal Operating
Procedures, Manuals, or other written matters issued by the central office which relate, in any way, to the non-spontaneous use of chemical agents.
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Request No. 21 provides as follows: The current Procedural Manual for the use of Chemical Agents.
Request No. 22 provides as follow: Any Procedural Manual for the use ofChemical Agents in use at any time after
January 1, 1999, but not currently in use. Request No. 23 provides as follows:
The current Procedural Manual for the Use of Force. Request No. 24 provides as follows:
Any Procedural Manual for the Use of Force in use at any time after January 1, 1999, but not currently in use. Defendants agreed to produce F.A.C. 33-602.210 and procedural directives 602.002 and 602.033, however Defendants objected to producing any procedures which are subject to a restricted circulation due to the threat to security and the safety of the institutions and staff, citing Fla. Stat. 945.10(1)(3) andF.A.C. 33-601.901. The Defendants have failed to demonstrate any threatto security or to the safety of the institution regarding the Manuals for use of Chemical Agents. Therefore, the Defendants shall fully respond to Request Nos. 21 and 22. Regarding Request Nos. 13, 23 and 24, the Defendants are to produce a privilege log as to those documents that are responsive and indicate why a confidentiality agreement between the parties will not satisfy the Defendants' concerns.
Request No. 12 provides as follows: For each inmate subjected to the non-spontaneous use of chemical agents
during the period beginning January 1, 2002 and ending as of the date ofyou response to this Request to Produce, a printout showing, as of the date of your response, the following:
A. Name
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B. DOC Identification Number C. Age of the inmate D. Current facility and custody classification. E. Each date during any period of incarceration on which the inmate was subjected to the non-spontaneous use of chemical agents. F. The inmates medical grade at each time the inmate was subjected to the non-spontaneous use of chemical agents. G. The inmates psychological grade at each time the inmate was subjected to the non-spontaneous use of chemical agents. H. Whether the inmate has ever been at the Corrections Mental Health Institution, a Crisis Intervention Unit, a Crisis Stabilization Unit, or a Transitional Care Unit, and if so, the dates when the inmate was so assigned.
The Defendants provided the Plaintiffs with the methods for obtaining this information for the
named Plaintiffs. However, the Defendants argue that as to the unnamed Plaintiffs, they cannot
provide documents responsive to these Requests because they will violate the Health Insurance
Portability and Accountability Act of 1999 ("HIPPA"). The Plaintiffs have not shown any
particularized need for these documents of unnamed potential class members prior to class
certification therefore, the Court finds Defendants' response to be sufficient.
Request No. 451-2 provides as follows:
Copies of all records, correspondence, memoranda and reports regarding injuries to inmates at Florida State Prison, Santa Rosa Correctional Institution, Charlotte Correctional Institution, Lowell Correctional Institution, Washington Correctional Institution, Columbia Correctional Institution and Taylor Correctional Institution related to exposure to chemical agents used in these institutions, dated any time after January 1,2000.
The Plaintiffs are able to obtain this information for the named Plaintiffs. However, the
Defendants object to providing this information for the unnamed Plaintiffs. The Plaintiffs have not
I The First Request for Production ofDocuments has two number 45s. The Court renumbered them 45-1 and 45-2.
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Case 2:03-cv-00526-JES-DNF Document 104 Filed 04/23/2004 Page 11 of 14
shown any particularized need for these documents ofunnamed potential class members prior to class certification, therefore, the Court finds Defendants' response to be sufficient.
Request No. 45 -1 provides as follows: Copies of all records, correspondence, memoranda and reports regarding
injuries to any employees at Florida State Prison, Santa Rosa Correctional Institution, Charlotte Correctional Institution, Lowell Correctional Institution, Washington Correctional Institution, Columbia Correctional Institution and Taylor Correctional Institution related to exposure to chemical agents used in these institutions, dated any time after January 1, 2000. The Plaintiffs are requesting information concerning any injuries to employees at these institutions. The Plaintiffs failed to set forth why this information is relevant or reasonably calculated to lead to the discovery ofadmissible evidence. Therefore, at this time, the Defendants are not required to respond to this Request.
IT IS FURTHER ORDERED: 1) The parties shall enter into a confidentiality agreement concerning the dissemination ofthe recordings and photographs within eleven (11) days from the date of this Order, and the recordings shall be available for Plaintiffs to view and make one copy of them thereafter. The parties shall immediately notify the Court in writing ifthey are unable to reach an agreement and provide the Court with drafts of their proposed agreements and the issues that they cannot resolve. 2) The Defendants shall allow inspection of the recordings and provide documents and photographs within twenty (20) days from the date of this Order.
-11-

Case 2:03-cv-00526-JES-DNF Document 104 Filed 04/23/2004 Page 12 of 14

3) Within twenty (20) days from the date of this Order, the Defendants shall fully respond to Request Nos. 21 and 22. Regarding Request Nos. l3, 23 and 24, the Defendants shall produce a privilege log as to those documents that are responsive and indicate why a confidentiality agreement between the parties will not satisfy the Defendants' concerns.
4) The Defendants shall produce documents responsive to Request Nos. 31,32 and 33 for the years 1999 through 2000, within twenty (20) days from the date of this Order.
5) The Defendants shall produce documents responsive to Request Nos. 37 and 38 within twenty (20) days from the date of this Order.

DONE and ORDERED in Chambers in Ft. Myers, Florida this ~ day of April, 2004.

Copies furnished to: Counsel of Record Unrepresented Parties

D~
UNITED STATES MAGISTRATE JUDGE

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Case 2:03-cv-00526-JES-DNF Document 104 Filed 04/23/2004 Page 13 of 14

Date Printed: 04/23/2004

F I L E COP Y

Notice sent to:
Lisa White Shirley, Esq. Florida Institutional Legal Services, Inc. 1010-B NW 8th Ave. Gainesville, FL 32601-4969
2:03-cv-00526 lap
Christopher M. Jones, Esq. Florida Institutional Legal Services, Inc. 1010-B NW 8th Ave. Gainesville, FL 32601-4969
2:03-cv-00526 lap
Peter Michael Siegel, Esq. Florida Justice Institute, Inc. 200 S. Biscayne Blvd., Suite 2870 Miami, FL 33131-2309
2:03-cv-00526 lap
Randall Challen Berg Jr., Esq. Florida Justice Institute, Inc. 200 S. Biscayne Blvd., Suite 2870 Miami, FL 33131-2309
2:03-cv-00526 lap
Rhonda Brownstein, Esq. Southern Poverty Law Center 400 Washington Ave. PO Box 2087 Montgomery, AL 36102-0287
2:03-cv-00526 lap
Denis Allen Dean, Esq. Attorney General's Office The Capitol, PL-Ol Tallahassee, FL 32399-1050
2:03-cv-00526 lap
Kathleen M. Savor, Esq. Attorney General's Office Civil Division 110 S.E. 6th St., lOth Floor Ft. Lauderdale, FL 33301
2:03-cv-00526 lap

Case 2:03-cv-00526-JES-DNF Document 104 Filed 04/23/2004 Page 14 of 14
Richard Scott Doss Santa Rosa Correctional Institution 5850 E. Milton Rd. Milton, FL 32583
2:03-cv-00526 lap

 </s> Case 2:03-cv-00526-JES-DNF Document 115 Filed 07/14/2004 Page 1 of 11

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA FORT MYERS DIVISION

DANNY E. BROWN, SYLVESTER BUTLER, KENNETH CAUDILL, SAMMY J. DOUSE, WILLIE ENGLISH, SIDNEY EVERETT, KELVIN FRAZIER, MORRIS J. GILBERT, JIJUAN T. HAGANS, TROY D. HALL, BENJAMIN LAFLOWER, CURT MASSIE, ANTONIO J. MCCLOUD, LAMAR A. MIFFIN, MICHAEL L. MONTGOMERY, KUNTA PORTER, ISSAC SHARPE, SAMUEL STROTHER, JEREMIAH THOMAS, EUGENE E. ULRATH, GLENN WHEELER, and REGINALD WILLIAMS, individually, and on behalf of a Class of all persons similarly situated,
Plaintiffs,

vs.

Case No. 2:03-cv-526-FtM-29DNF

JAMES V. CROSBY, JR. , in his

official capacity as Secretary,

Florida Department of Corrections;

GERALD H. ABDUL-WAS I , in his

official capacity as Inspector

General, Florida Department of

Corrections; JOSEPH THOMPSON, in his

official capacity as Warden, Florida

State Prison; CHESTER LAMBDIN, in

his official capacity as Warden,

Charlotte Correctional Institution;

JOSEPH PETROVSKY, in his official

capaci ty as Warden, Santa Rosa

Correctional

Institution;

and

WENDELL WHITEHURST, in his official

capacity as Warden, Washington

Correctional Institution,

Defendants. ____________________________________1

ORDER

This matter comes before the Court on Defendants' Amended Motion To Dismiss and Incorporated Memorandum of Law (Doc. #39)

Case 2:03-cv-00526-JES-DNF Document 115 Filed 07/14/2004 Page 2 of 11
filed on December 2, 2003. Plaintiffs filed a Memorandum in opposition (Doc. #43) on December 8, 2003, which adopted by reference their previously filed Memorandum of Law in Opposition to Defendants' Motion To Dismiss (Doc. #26).
I. In deciding a motion to dis~iss, the Court must accept all factual allegations in a complaint as true and take them in the light most favorable to plaintiffs. Christopher v. Harbury, 536
u.s. 403, 406 (2002); Hill v. White, 321 F.3d 1334, 1335 (11th Cir.
2003) . A complaint should not be dismissed unless it appears beyond doubt that plaintiffs can prove no set of facts that would
entitie them to relief. Conley v. Gibson, 355 u.s. 41, 45-46
(1957) (footnote omitted); Marsh v. Butler County, Ala., 268 F.3d 1014, 1022 (11th Cir. 2001) (en banc). To satisfy the pleading requirements of Fed. R. Civ. P. 8, a complaint must simply give the defendant fair notice of what the plaintiff's claim is and the
grounds upon which it rests. Swierkiewicz v. Sorema N.A., 534 u.s.
506, 512 (2002). However, dismissal is warranted under Fed. R. Civ. P. 12(b) (6) if, assuming the truth of the factual allegations of plaintiff's complaint, there is a dispositive legal issue which
precludes relief. Neitzke v. Williams, 490 u.s. 319, 326 (1989);
Brown v. Crawford County, Ga., 960 F.2d 1002, 1009-10 (11th Cir. 1992). The Court need not accept unsupported conclusions of law or of mixed law and fact. Marsh, 268 F.3d at 1036 n.16.
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Case 2:03-cv-00526-JES-DNF Document 115 Filed 07/14/2004 Page 3 of 11
This standard applies when the Court reviews issues of standing pursuant to a motion to dismiss. The principal purpose of standing is to ensure that the parties before the Court have a concrete interest in the outcome of the proceedings such that they can be expected to properly frame the issues. Harris v. Evans, 20 F.3d 1118, 1121 (11th Cir. 1994) (en banc), cert. denied, 513 U.S. 1045 (1994). Every complaint must contain sufficient allegations of standing, Church v. City of Huntsville, 30 F.3d 1332, 1336 (11th Cir. 1994), but the Complaint may be dismissed for lack of standing only "if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Jackson v. Okaloosa County, Fla., 21 F. 3d 1531, 1534 (11th Cir. 1994) (citation omitted). Standing always remains an open issue, and can be revisited under a different standard at the summary judgment stage or at trial. Church, 30 F.3d at 1336; Harris, 20 F.3d at 1121 n.4. This having been said, it is still plaintiffs' responsibility to allege facts sufficient to establish their standing, and the Court cannot "speculate concerning the existence of standing, nor should we imagine or piece together an injury sufficient to give plaintiff standing when it has demonstrated none." Miccosukee Tribe of Indians of Fla. v. Florida State Athletic Comm'n, 226 F.3d 1226, 1229-30 (11th Cir. 2000); see also Shatz v. Cates, 256 F.3d 1077, 1081 (11th Cir. 2001).
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Case 2:03-cv-00526-JES-DNF Document 115 Filed 07/14/2004 Page 4 of 11

II.

The Complaint (Doc. #1) sets forth the following facts, which

at this stage of the proceedings are assumed to be true.

Plaintiffs are individuals who are currently in the custody of the

Florida Department of Corrections. Defendants are employed within

the Florida prison system and are being sued in their official

capacities. Each plaintiff alleges that he has been the victim of

unjustified or excessive use of chemical agents by employees of the

Florida Department of Corrections. Specifically, each plaintiff

alleges that while locked in his cell defendants have used chemical

agents, including pepper spray and tear gas, against them for the

improper purpose of causing harm and not in a good faith effort to

restore order or maintain discipline or for any other legitimate

reason. Plaintiffs, on behalf of themselves and on behalf of a

class of similarly situated individuals, seek (1) a declaratory

judgment that defendants' policies, practices and customs for the

use of chemical agents violate the Eighth and Fourteenth

Amendments' prohibition again~t cruel and unusual punishment, and

(2) injunctive relief requiring defendants to cease their unlawful

conduct and to implement measures to prevent its continuation.

III.

Defendants contend that the Complaint must be dismissed

because plaintiffs lack standing to pursue their claims. # 39, pp. 1-8) .

(Doc.

-4-

Case 2:03-cv-00526-JES-DNF Document 115 Filed 07/14/2004 Page 5 of 11
In order to establish standing, plaintiffs must adequately allege, and ultimately prove, three elements: (1) that they have suffered an "injury-in-fact;" (2) a causal connection between the asserted injury-in-fact and the challenged conduct of the defendants; and (3) that the injury likely will be redressed by a favorable decision. Shotz, 256 F.3d at 1081, ci ting Luj an v.
Defenders of Wildlife, 504 u.s. 555, 560-61 (1992) . These
requirements are the "irreducible minimum" required by the Constitution for a plaintiff to proceed in federal court. Vermont
Agency of Natural Res. v. United States, 529 u.s. 765, 771 (2000);
Northeastern Fla. Chapter of Associated Gen. Contractors of America
v. City of Jacksonville, 508 u.s. 656, 664 (1993).
In addition, plaintiffs seeking injunctive relief lack standing unless they allege facts giving rise to an inference that they will suffer future injury at the hands of the defendants. Shotz, 256 F.3d at 1081. "[AJ party has standing to seek injunctive relief only if the party alleges, and ultimately proves, a real and immediate - as opposed to a merely conj ectural or hypothetical - threat of future injury." Church, 30 F.3d at 1337, citing City of Los Angeles v. Lyons, 461 U.S. 95, 102 (1983); see also Bowen v. First Family Fin. Servs., Inc., 233 F.3d 1331, 1340 (11th Cir. 2000). "[P]ast exposure to illegal conduct does not in itself show a present case or controversy regarding inj unctive relief . . if unaccompanied by any continuing, present adverse
-5-

Case 2:03-cv-00526-JES-DNF Document 115 Filed 07/14/2004 Page 6 of 11
effects." Lyons, 461 U.S. at 102 (quotation omitted). Thus, for a court to have jurisdiction to award declaratory or injunctive relief, plaintiffs "must assert a reasonable expectation that the injury they have suffered will continue or will be repeated in the future." Malowney v. Federal Collection Dep. Group, 193 F.3d 1342, 1347 (11th Cir. 1999).
A. Defendants contend that plaintiffs have failed to allege adequately that they have suffered an injury in fact. Specifically, defendants contend that plaintiffs have not, and cannot, allege that they will suffer a future injury from the use of any chemical agents because any such injury is too speculative. (Doc. #39, pp. 3-4). The Court disagrees. The Complaint alleges generally that chemical agents have been used against inmates confined with Florida Department of Corrections facilities on thousands of occasions since 1999 and that such use has increased steadily during that period of time. (Doc. #1, ~~ 66-71). The Complaint also alleges specifically that chemical agents have been used against the named plaintiffs for various unlawful reasons on multiple occasions in the last several years. (Doc. #1, <j[<j[ 92310). In this regard, the Complaint provides specific information regarding each plaintiff, including the dates of the incidents at issue, the names of the individuals involved, and the specific harm that each plaintiff suffered. The Court concludes that these
-6-

Case 2:03-cv-00526-JES-DNF Document 115 Filed 07/14/2004 Page 7 of 11
factual allegations are sufficient both to allege that each plaintiff has suffered an injury in fact and to allege that each plaintiff faces a real and immediate threat of future injury.
B. Defendants cont.end that plaintiffs have failed to allege adequately that there is a causal connection between the asserted injury-in-fact and the challenged conduct of the defendants. (Doc. #39, pp. 4-7). In support of this contention, however, defendants rely on disputed issues of fact outside the confines of the Complaint. For example, defendants argue that "any injury occasioned by Plaintiffs is attributable to their steadfast refusal to conform their behavior to acceptable standards; it is not attributable to Defendants' actions." (Doc. #39, pp. 4-5). Such facts, which are not contained in the Complaint, are not properly considered when deciding a motion to dismiss. GJR Invs., Inc. v. County of Escambia, Fla., 132 F.3d 1359, 1364 n.6 (11th Cir. 1998). Further, defendants have not offered any evidence in support of these assertions such that the Court would be required to convert the motion to one for summary judgment. Fed. R. Civ. P. 12 (b) (last sentence). After reviewing the Complaint, the Court concludes that plaintiffs have alleged adequately that there is a causal connection between the asserted injury-in-fact and the challenged conduct of the defendants. (~, Doc. #1, ~~ 90-91,
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Case 2:03-cv-00526-JES-DNF Document 115 Filed 07/14/2004 Page 8 of 11
99, 122, 130, 152, 161, 180, 195, 199, 210, 220, 223, 231-32, 237, 252, 275, 294, 303-04).
C. Defendants contend that plaintiffs have failed to allege adequately that the injuries they have suffered likely will be redressed by a favorable decision. (Doc. #39, pp. 7-8). As explained above, plaintiffs are seeking declaratory and injunctive relief. (Doc. #1, pp. 64-66). Defendants do not assert that the Court lacks the authority to award declaratory and/or injunctive relief in this action. Instead, defendants contend that the specific injunctive relief that plaintiffs seek is contrary to the requirements for prospective relief set forth in the Prison Litigation Reform Act (the PLRA) , 18 U.S.C. § 3626(a) (1). (Doc. #39, p. 8). The Court disagrees. Section 3626 (a) (1) (A) states that a court "shall not grant or approve any prospective relief unless the court finds that such relief is narrowly drawn, extends no further than necessary to correct the violation of the Federal right, and is the least intrusive means necessary to correct the violation of the Federal right." Therefore, as long as this standard is met, the PLRA allows the Court to grant prospective injunctive relief. Defendants do not contend otherwise. Such relief would plainly redress the injuries that plaintiffs alleged to have suffered.
-8-

Case 2:03-cv-00526-JES-DNF Document 115 Filed 07/14/2004 Page 9 of 11
For the reasons discussed above, the Court concludes that plaintiffs have alleged adequately their standing to pursue the present action.
IV. Defendants contend that the Complaint must be dismissed for failure to state a claim under the Eighth Amendment to the United States Constitution. (Doc. #39, pp. 8-9). "The Eighth Amendment, which applies to the States through the Due Process Clause of the Fourteenth Amendment, prohibits the infliction of 'cruel and unusual punishments' on those convicted of crimes./I Wilson v. Seiter, 501 U.S. 294, 296-97 (1991) (internal citation omitted). The Supreme Court has recognized that the unnecessary and wanton infliction of pain and suffering constitutes cruel and unusual punishment forbidden by the Eighth Amendment. Hudson v. McMillian, 503 U.S. I, 5 (1992), citing Whitley v. Albers, 475 U.S. 312, 319 (1986). The question whether a particular measure taken by prison officials against inmates inflicts unnecessary and wanton pain and suffering turns on "whether force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm./I Hudson, 503 U.S. at 6, quoting Whitley, 475 U.S. at 320-21. Factors to consider in answering this question include: (1) the need for the application of force; (2) the relationship between the need and the amount of force used; (3) the
-9-

Case 2:03-cv-00526-JES-DNF Document 115 Filed 07/14/2004 Page 10 of 11

extent of the injury inflicted ; and (4) the exrent of the thr eat t o the safety of staff and inmates . Whitley , 475 U. S . at 321 .

De f endants conte n d that pla i ntiffs have fa il ed to alleg e facts

which support a widespread practice of engaging in unjus t ified,

excessive and malicious use of chemical agents .

curther,

defendants contend tha t plainti f fs have failed t o provide no t ice of

their exact claims because they have not adequately speci f i ed the type of segregation for these plaintiffs . (Doc . >39 , p . 9) . The

Court disagrees . After reviewing the allegations in the Complaint, as outlined above , t he Court concludes that plaint iffs have a lleged

adequately a claim under the Eighth Amendment to the Constitution

because it does not appear beyond doubt that plaintiff can prove no set o f f a cts that would enti t le i t to relief . Brewer - Gi o r gio v .

Producers Video , Inc . , 216 F . 3d 1281 , 1286 0 . 6 (11th Cir . 2000) . Accordingly, it is now

ORDERED:

Def e ndants ' Amen ded Mo t ion To Dismiss (Do c. #39 ) is DENIED .

Defendants shall fi l e their answer to the Complaint (Doc . #1)

within TWENTY (2 0 ) DAYS o f the date of this Order .

DONE AND ORDERED at cort Mye rs , Florida , this M

day of

July , 2004 .

JO
UN
-10-

JUDGE

Case 2:03-cv-00526-JES-DNF Document 115 Filed 07/14/2004 Page 11 of 11 Copies: Han. Douglas N. Frazier Counsel of record DCCD DCLC
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 </s> Case 2:03-cv-00526-JES-DNF Document 126 Filed 07/28/2004 Page 1 of 2

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA
FT. MYERS DIVISION

DANNY E. BROWN, SYLVESTER BUTLER, KENNETH CAUDILL, SAMMY J. DOUSE, WILLIE ENGLISH, SIDNEY EVERETT, KELVIN FRAZIER, MORRIS J. GILBERT, JIJUAN T. HAGANS, TROY D. HALL, BENJAMIN LAFLOWER, CURT MASSIE, ANTONIO J. MCCLOUD, LAMAR A. MIFFIN, MICHAEL L. MONTGOMERY, KUNTA PORTER, ISSAC SHARPE, SAMUEL STROTHER, JEREMIAH THOMAS, EUGENE E. ULRATH, GLENN WHEELER, REGINALD WILLIAMS,
Plaintiffs, -vs-

Case No. 2:03-cv-526-FtM-29DNF

SECRETARY, DEPARTMENT OF CORRECTIONS, GERALD H. ABDULWASI, JOSEPH THOMPSON, CHESTER LAMBIN, JOSEPH PETROVSKY, WENDELL WHITEHURST,
Defendants. _____________________________________/

ORDER
This cause came on for consideration on the following motion(s) filed herein:

MOTION: PLAINTIFFS’ MOTION FOR RULE 37 SANCTIONS AND SECOND MOTION TO COMPEL ANSWERS TO CLASS ACTION INTERROGATORIES (Doc. No. 112)
FILED: June 23, 2004 _____________________________________________________________
THEREON it is ORDERED that the Motion for Rule 37 Sanctions is DENIED, and the Motion to Compel Answers to Class Action Interrogatories is GRANTED in part.

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Case 2:03-cv-00526-JES-DNF Document 126 Filed 07/28/2004 Page 2 of 2

On July 26, 2004, a hearing was held on the Motion for Rule 37 Sanctions and Second Motion to Compel Answers to Class Action Interrogatories. The Plaintiffs argued that the Defendants failed to provide answers to Interrogatories 2 through 16 even after being ordered to provide the information by this Court. The Defendants asserted that they offered the raw data to the Plaintiffs, but refused to compile the data to answer these interrogatories. The Court found that as a starting point, the Defendants are to provide the “IG Logs” from the Inspector General’s Office which reflect the chemical agent use of force from January 1, 2001, until the date of the hearing. Upon receipt by the Plaintiffs, the Plaintiffs are to review the reports and may submit further discrete interrogatories as to information in other reports that will further answer their propounded interrogatories.
IT IS FURTHER ORDERED: 1) Within thirty (30) days from the date of the hearing, the Defendants shall provide the “IG Logs” from the Inspector General’s Office which reflect the chemical agent use of force from January 1, 2001, until the date of the hearing. Should the Defendants need additional time, they may apply to the Court. 2) Defendants’ Motion for Expedited Hearing (Doc. 114) is denied as moot. DONE and ORDERED in Chambers in Ft. Myers, Florida this 28th day of July, 2004.

Copies furnished to: Counsel of Record Unrepresented Parties

/s/ Douglas N. Frazier DOUGLAS N. FRAZIER UNITED STATES MAGISTRATE JUDGE

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 </s> Case 2:03-cv-00526-JES-DNF Document 149 Filed 09/20/2004 Page 1 of 6

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA FORT MYERS DIVISION

DANNY E. BROWN, SYLVESTER BUTLER, KENNETH CAUDILL, SAMMY J. DOUSE, WILLIE ENGLISH, SIDNEY EVERETT, KELVIN FRAZIER, MORRIS J. GILBERT, JIJUAN T. HAGANS, TROY D. HALL, BENJAMIN LAFLOWER, CURT MASSIE, ANTONIO J. MCCLOUD, LAMAR A. MIFFIN, MICHAEL L. MONTGOMERY, KUNTA PORTER, ISSAC SHARPE, SAMUEL STROTHER, JEREMIAH THOK~S, EUGENE E. ULRATH, GLENN WHEELER, and REGINALD WILLIAMS, individually, and on behalf of a Class of all persons similarly situated,

Plaintiffs,

vs.

Case No. 2:03-cv-526-FtM-29DNF

JAMES V. CROSBY, JR., in his

official capacity as Secreta~y,

Florida Department of Corrections;

GERALD H. ABDUL-WASI, in his

official capacity as Inspec~or

General, Florida Department of

Corrections; JOSEPH THOMPSON, in his

official capacity as Warden, Florida

State Prison; CHESTER LAMBDIN, in

his official capacity as Warden,

Charlotte Correctional Institution;

JOSEPH PETROVSKY, in his official

capacity as Warden, Santa Rosa

Correctional

Institution;

and

WENDELL WHITEHURST, in his official

capacity as Warden, Washington

Correctional Institution,

Defendants. __________________________________ 1

OPINION AND ORDER This matter comes before the Court on Plaintiffs' Motion For Preliminary Injunction (Doc. #139) and Memorandum of Law in Support

Case 2:03-cv-00526-JES-DNF Document 149 Filed 09/20/2004 Page 2 of 6
(Doc. #140) filed on August 26, 2004. Plaintiffs have filed declarations and other material in support of their motion. (Docs. #139, Exhs. 1-23; #143-46). Defendants filed a Response and Memorandum of Law in Opposition (Doc. #147) on September 7, 2004. Plaintiffs also have filed a Request for Oral Argument (Doc. #141). Because the Court concludes that oral argument is not necessary, that request will be denied.
I.
Plaintiffs are individuals who are currently in the custody of the Florida Department of Corrections. Defendants are employed within the Florida prison system and are being sued in their official capacities. Each plaintiff alleges that he has been the victim of unj ustified or excessive use of chemical agents by employees of the Florida Department of Corrections. Specifically, each plaintiff alleges that while locked in his cell defendants have used chemical agents, including pepper spray and tear gas, against them for the improper purpose of causing harm and not in a good faith effort to restore order or maintain discipline or for any other legitimate reason. Plaintiffs, on behalf of themselves and on behalf of a class of similarly situated individuals, seek (1) a declaratory judgment that defendants' policies, practices and customs for the use of chemical agents violate the Eighth and Fourteenth Amendments' prohibition against cruel and unusual punishment, and (2) injunctive relief requiring defendants to cease
-2-

Case 2:03-cv-00526-JES-DNF Document 149 Filed 09/20/2004 Page 3 of 6
their unlawful conduct and to implement measures to prevent its continuation.
In their motion for preliminary injunction, plaintiffs seek an injunction that "bars the non-spontaneous use of chemical agents on inmates located in a cell, including a shower cell, in a segregated housing unit" unless certain conditions are met. The injunction plaintiffs seek would allow such use if (1) "used in a good faith effort to prevent actual physical harm to the inmate, to another inmate, or to staff," (2) "recorded by a camera which includes both video and audio," (3) "approved by a psychiatrist or licensed psychologist, which approval may only be given after a cell-front interview by the psychiatrist or psychologist with the inmate" for certain inmates with known mental health problems, and (4) it occurs after "prior consultation and approval by a medical doctor is given" for inmates with medical conditions that can be aggravated by chemical agents. (Doc. #139, pp. 16-17).
II. In the Eleventh Circuit :.he issuance of "a preliminary injunction is an extraordinary and drastic remedy that should not be granted unless the movant clearly carries its burden of persuasion on each of [four] prerequisites." Suntrust Bank v. Houghton Mifflin Co., 252 F.3d 1165, 1166 (11th Cir. 2001), reh'a and reh'g en banc denied, 275 F.3d 58 (11th Cir. 2001); see also Four Seasons Hotels & Resorts, B.V. v. Consorcio Barr, S.A., 320
-3-

Case 2:03-cv-00526-JES-DNF Document 149 Filed 09/20/2004 Page 4 of 6

F.3d 1205, 1210 (11th Cir. 2003); McDonald's Corp. v. Robertson,

147 F.3d 1301, 1306 (11th Cir. 1998). The four prerequisites for

a preliminary inj unction are: (1) a substantial likelihood of

succeeding on the merits; (2) a substantial threat of irreparable

inj ury if relief is denied; (3) an inj ury that outweighs the

opponent's potential injury if relief is not granted; and (4) an

injunction would not harm or do a disservice to the public

interest. Four Seasons Hotels & Resorts, 320 F. 3d at 1210;

Suntrust Bank, 252 F.3d at 1166; American Red Cross v. Palm Beach

Blood Bank, Inc., 143 F.3d 1407, 1410 (11th Cir. 1998); Gold Coast

Pub'ns, Inc. v. Corrigan, 42 F.3d 1336, 1343 (11th Cir. 1994),

cert. denied, 516 u.s. 931 (1995).

In Turner v. Safley, 482 u.S. 78, 84 (1987), the Supreme Court

noted the court's obligation to protect the constitutional rights

of prison inmates:

The first of these principles is that federal courts must

take cognizance of the valid constitutional claims of

prison inmates. Prison walls do not form a barrier

separating prison inmates from the protections of the

Consti tution.

Because prisoners retain these

rights, when a prison regulation or practice offends a

fundamental constitutional guarantee, federal courts will

discharge their duty to protect constitutional rights.

Miller v. Kino, __ F.3d __ (11th Cir. September 14, 2004)

recently summarized the Eighth Amendment principles in the prison

context. Additionally, Turner noted:

A second principle [], however, is the recognition that courts are ill equipped to deal with the increasingly urgent problems of prison administration and reform. . .

-4-

Case 2:03-cv-00526-JES-DNF Document 149 Filed 09/20/2004 Page 5 of 6
[T]he problems of prisons in America are complex and intractable, and, more to the point, they are not readily susceptible of resolution by decree. Running a prison is an inordinately difficult undertaking that requires expertise, planning, and the commitment of resources, all of which are peculiarly within the province of the legislative and executive branches of government. Prison administration is, moreover, a task that has been committed to the responsibility of those branches, and separation of powers concerns counsel a policy of judicial restraint. Where a state penal system is involved, federal courts have ... additional reason to accord deference to the appropriate prison authorities.
rd. at 84-85 (internal quotation and citation omitted) .
III.
After a careful review of the record and consideration of all
material submitted by plaintiffs in support of their motion for a
preliminary injunction, the Court concludes that plaintiffs' motion
is due to be denied. As explained above, plaintiffs seek an
injunction that "bars the non-spontaneous use of chemical agents on
iD~ates located in a cell, including a shower cell, in a segregated
housing unit" unless other conditions are met. Plaintiffs have
not shown a substantial likelihood of prevailing on the merits,
or that the requested preliminary injunction is required, or even
allowed, by the Eighth Amendment. As the Eleventh Circuit has
cautioned, courts do not have "carte blanche to impose their
theories of penology on the nation's prisons." Bass v. Perrin, 170
F.3d 1312, 1316 (lIth Cir. 1999). The Court concludes that
plaintiffs' motion for a preliminary injunction is due to be
denied.
-:>-

Case 2:03-cv-00526-JES-DNF Document 149 Filed 09/20/2004 Page 6 of 6

Accordingly, it is now

ORDERED:

1 . Plaintiffs ' Motion For Preliminary Injunction (Doc . #139)

is DENIED.

2 . Plaintiffs ' Request For Oral Argument (Doc . #141) is

DENIED.

~ DONE AND ORDERED at Fort Myers, Florida, this

day of

September, 2004 .

Copies : Hon . Douglas N. Frazier Counsel of record

JUDGE

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 </s> Case 2:03-cv-00526-JES-DNF Document 158 Filed 12/17/2004 Page 1 of 4

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA
FT. MYERS DIVISION

DANNY E. BROWN, SYLVESTER BUTLER, KENNETH CAUDILL, SAMMY J. DOUSE, WILLIE ENGLISH, SIDNEY EVERETT, KELVIN FRAZIER, MORRIS J. GILBERT, JIJUAN T. HAGANS, TROY D. HALL, BENJAMIN LAFLOWER, CURT MASSIE, ANTONIO J. MCCLOUD, LAMAR A. MIFFIN, MICHAEL L. MONTGOMERY, KUNTA PORTER, ISSAC SHARPE, SAMUEL STROTHER, JEREMIAH THOMAS, EUGENE E. ULRATH, GLENN WHEELER, REGINALD WILLIAMS,

Plaintiffs,

-vs-

Case No. 2:03-cv-526-FtM-29DNF

SECRETARY, DEPARTMENT OF CORRECTIONS, GERALD H. ABDULWASI, JOSEPH THOMPSON, CHESTER LAMBIN, JOSEPH PETROVSKY, WENDELL WHITEHURST,

Defendants. _____________________________________/

ORDER

This cause came on for consideration on the following motion(s) filed herein:

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MOTION: PLAINTIFFS’ MOTION TO COMPEL AND FOR RULE 37(B) SANCTIONS (Doc. No. 133)
FILED: August 10, 2004 _____________________________________________________________ THEREON it is ORDERED that the Motion to Compel (Doc. 133) is GRANTED, and the Motion for Rule 37(b) Sanctions is DENIED.
The Plaintiffs are requesting that the Defendants be compelled to provide the Inspector General (“IG”) Logs. Originally, the Court held a hearing on July 26, 2004, and ordered the Defendants to produce the IG Logs. The Plaintiffs filed this Motion to Compel after the Defendants failed to produce the IG Logs claiming the Health Insurance Portability and Accountability Act (“HIPAA”) prevented the Defendants from producing the IG Logs.1 The Defendants produced to the Court three redacted IG Logs. (See, Doc. 137). In addition, at the Court’s request, the Defendants produced three unredacted IG Logs for an in camera inspection.
“Parties may obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party . . . Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.” Fed.R.Civ.P.26(b)(1). As the Plaintiffs argued at the hearing, the IG Logs will provide critical information to the Plaintiffs concerning the chemical agent use of force from January 1, 2001, until the date of the hearing (July 26, 2004). The Plaintiffs could not obtain this information from any other source. The Court has reviewed both the redacted and unredacted IG Logs. The IG Logs that were redacted contain no useful
1 The Defendants also argued that the Plaintiffs should pay for the cost of producing the IG Logs. In its Order (Doc. 138) dated August 26, 2004, the Court determined that the Defendants were required to bear the cost of production of the IG Logs.
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information. All the information that is useful has been redacted. The Plaintiffs are left with very little information at all. The Court reviewed the unredacted IG Logs and finds that they contain information that is relevant and appears reasonably calculated to lead to the discovery of admissible evidence. Further information provided by the Defendants to the Court concerning the codes reflected in the IG Logs do appear to provide information that will narrow the number of IG Logs to be reviewed and produced. For example, the Defendants state that “[a]lmost exclusively, code ‘a’ is applicable to spontaneous use of force, but again does not indicate use of a chemical agent. Also, code ‘k’ is not used for any use of force situations involving inmates (parolees and probationers only).” (See, Doc. 153, Defendants’ Notice in Response to Court’s Order of October 4, 2004). Additionally, the IG Logs provided to the Court were overwhelmingly pertaining to officers being injured rather than inmates. The Court finds that HIPAA does not specifically apply to the IG Logs. However, by redacting the names of individuals involved coupled with the Confidentiality Agreement (Doc. 129), any privacy concerns can be accomplished. To afford the Defendants the maximum protections, the Defendants will be required to review and produce the IG Logs which reflect the non-spontaneous chemical agent use of force from January 1, 2001, until July 26, 2004, with the names redacted.
IT IS FURTHER ORDERED: The Defendants shall produce the IG Logs which reflect the non-spontaneous chemical agent use of force from January 1, 2001, until July 26, 2004, with the names redacted as expeditiously as possible. The Court will expect that these reports will be produced absent an appeal of this Order.
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Case 2:03-cv-00526-JES-DNF Document 158 Filed 12/17/2004 Page 4 of 4 DONE and ORDERED in Chambers in Ft. Myers, Florida this 17th day of December, 2004.
Copies furnished to: Counsel of Record Unrepresented Parties
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 </s> Case 2:03-cv-00526-JES-DNF Document 205 Filed 06/21/2005 Page 1 of 23

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA FORT MYERS DIVISION

DANNY E. BROWN, SYLVESTER BUTLER, KENNETH CAUDILL, SAMMY J. DOUSE, WILLIE ENGLISH, SIDNEY EVERETT, KELVIN FRAZIER, MORRIS J. GILBERT, JIJUAN T. HAGANS, TROY D. HALL, BENJAMIN LAFLOWER, CURT MASSIE, ANTONIO J. MCCLOUD, LAMAR A. MIFFIN, MICHAEL L. MONTGOMERY, KUNTA PORTER, ISSAC SHARPE, SAMUEL STROTHER, JEREMIAH THOMAS, EUGENE E. ULRATH, GLENN WHEELER, REGINALD WILLIAMS,
Plaintiffs,

vs.

Case No. 2:03-cv-526-FtM-29DNF

SECRETARY, DEPARTMENT OF CORRECTIONS, GERALD H. ABDUL-WASI, JOSEPH THOMPSON, CHESTER LAMBIN, JOSEPH PETROVSKY, WENDELL WHITEHURST,
Defendants. _____________________________________/

OPINION AND ORDER This matter comes before the Court on Plaintiffs’ Motion for Class Certification (Doc. #166) filed on January 20, 2005. Plaintiffs also filed supporting affidavits and exhibits (Doc. #168.) Defendants filed their Response in Opposition to Plaintiffs’ Motion for Certification of Class (Doc. #170) on January 27, 2005.

Case 2:03-cv-00526-JES-DNF Document 205 Filed 06/21/2005 Page 2 of 23
I.
Plaintiff Danny E. Brown and eighteen other plaintiffs1 bring
this action pursuant to 42 U.S.C. § 1983 alleging a violation of
their Eighth Amendment rights. Plaintiffs seek prospective
injunctive and declaratory relief against defendants James V.
Crosby, Jr., Gerald H. Abdul-Wasi, Joseph Thompson, Chester
Lambdin, Joseph Petrovsky, and Wendell Whitehurst in their official
capacities at the Florida Department of Corrections and various
Florida correctional institutions.2 No monetary damages are sought
by any plaintiff or the proposed class, although the named
plaintiffs have a separate action pending in the Jacksonville
Division of this court seeking money damages for the same conduct
alleged in this case.
1On June 10, 2005, the Court granted voluntary dismissals as to plaintiffs Troy D. Hall, Michael L. Montgomery, and Glenn Wheeler, all of whom had been released from the custody of the Florida Department of Corrections.
2Defendant Crosby is the Secretary of the Florida Department of Corrections and is responsible for the operation of all prisons under the supervision and control of the Florida Department of Corrections. Defendant Abdul-Wasi is the Inspector General of the Florida Department of Corrections and is statutorily responsible for investigating complaints of staff misconduct, including the investigation of all reported uses of forces by staff, and for reporting his finding to prison management. Defendant Thompson is the warden at Florida State Prison. Defendant Petrovsky is the warden at Santa Rosa Correctional Institution. Defendant Whitehurst is the warden at Washington Correctional Institution. Defendant Lambdin is the warden at Charlotte Correctional Institution. These wardens are responsible for the operation of their respective prisons, including review and approval or disapproval of the use of force.
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The claims in this case involve the non-spontaneous use of chemical agents in controlled situations where time constraints are not an issue. (Doc. #1, ¶53.) “Spontaneous” use of force involves an immediate need to use force without time for reflection or planning, and is specifically excluded from the scope of this action. (Id. at ¶50.) “Non-spontaneous” use of force is defined in the Complaint as a use of force which occurs after time for reflection and planning by the correctional staff using the force. (Id. at ¶ 51.) “Controlled situations” is defined in the Complaint as situations where inmates are housed in segregation or are otherwise locked down or restrained, and includes Administrative Confinement, Disciplinary Confinement, Close Management, and Maximum Management. (Id. at ¶54.)
Plaintiffs allege that employees at the Florida correctional institutions routinely misuse chemical agents on inmates in segregated housing units, and that defendants permit this routine misuse by refusing to reprimand the correctional officers. Plaintiffs allege that “[t]he use of force by way of chemical agents, as alleged in this Complaint, is done as a matter of routine, and is permitted and encouraged, in accordance with the established policies, practices and customs of the Florida Department of Corrections.” (Doc. #1, p. 58.) Plaintiffs further assert “[t]he defendants, and other supervisory employees, routinely violate controlling constitutional standards by
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participating in, facilitating, encouraging, or acquiescing in the behavior of their subordinates and are fully aware that chemical agents are used maliciously and sadistically for the very purpose of causing harm and not in a good-faith effort to maintain or restore discipline, and with that knowledge, fail to take any corrective action.” (Id.) According to plaintiffs, such policy, practice and custom of misuse “necessitate[] injunctive relief directing defendants to cease their practice of permitting employees to abuse inmates with chemical agents and to implement remedial measures.” (Id., p. 10.)
Plaintiffs seek to represent a Rule 23 class that they describe in the following terms:
[A]ll persons who are: (a) now in, or will hereafter come into, the custody of the Florida Department of Corrections, and (b) now housed, or will hereafter be housed, in any type of segregated housing, including but not limited to Maximum Management, Close Management, Disciplinary Confinement or Administrative Confinement, and (c) have been, or may be in the future, subjected to a non-spontaneous use of force by way of chemical agents used maliciously and sadistically for the very purpose of causing harm and not in a good-faith effort to maintain or restore discipline. (Doc. #1, p. 8, ¶37.) A synopsis of the individual allegations of the nineteen plaintiffs is as follows:
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(1) Plaintiff Danny E. Brown (Brown) was housed in administrative confinement at Santa Rosa Correctional Institution where he declared a psychological emergency because he was feeling suicidal and homicidal. He was placed on Alternative Medical Housing Cell (hereinafter AMHC) status, which required that he be observed for potential self-injury. At some point during Brown’s confinement, he began to cover his body with his own feces. The correctional officers discharged chemical agents into Brown’s cell without justification. Brown alleges that as a result of the use of the chemical agents, he suffered an asthma attack, breathing difficulties, and mental and emotional distress.
(2) Plaintiff Sylvester Butler (Butler), and inmate with a history of psychiatric problems and borderline developmentally disabled, was housed in a Close Management cell at Santa Rosa Correctional Institution from March 14, 2000 to March 15, 2000. During that time, Butler alleges that he was sprayed with chemical agents on multiple occasions without justification and, as a result, suffered burns. After his removal to the Florida State Prison, Butler claims that he was again sprayed without justification with chemical agents when he requested medical assistance on October 3, 2000, and suffered injuries as a result. Butler is currently imprisoned at the Columbia Correctional Institution.
(3) Plaintiff Kenneth Caudhill (Caudhill) has epilepsy and mental illness. He was housed in Close Management at the Florida State Prison during the alleged occurrence of the unjustified non-spontaneous use of chemical agents on him as a response to an inquiry made to a correctional officer. He claims to have suffered seizures and asthma attacks as a result of such use. Presently, Caudhill is imprisoned at the Union Correctional Institution.
(4) Plaintiff Sammy J. Douse (Douse) is a developmentally disabled inmate housed at the Charlotte Correctional Institution. He alleges that, on two separate occasions, the correctional officers misused chemical agents on him. Douse contends the first misuse occurred as a response to his request for additional grievance forms and the second misuse occurred “while he was handcuffed and locked in a confinement shower, because he was talking to other inmates.” (Doc. #1, p. 25.) He maintains that he developed a chemical burn on his nose from the first
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incident and on his right arm and right leg from the second incident.
(5) Plaintiff Willie English (English) has a history of very serious mental illness. He was recently committed to the Correctional Mental Health Institution at Zephyrhills, but is currently assigned to the Florida State Prison. At the time of his alleged episode of chemical agent misuse, English was imprisoned at the Florida State Prison. He alleges that on multiple occasions several correctional officers discharged chemical agents into his cell without any provocation from him. English claims that his mental condition deteriorated after the incidents.
(6) Plaintiff Sydney Everett (Everett) is a blind inmate currently housed at Tomoka Correctional Institution. At the time of the alleged incident, he was imprisoned at the Washington Correctional Institution. Everett alleges the correctional officer discharged chemical agents into his cell because his bed was not properly made. Everett complains that his eye sockets became swollen and his prosthetic eyes could not be placed into the eye sockets for several weeks.
(7) Plaintiff Kelvin Frazier (Frazier) has asthma and is imprisoned at the Santa Rosa Correctional Institution. At the time of the alleged incidents, he was housed at the Florida State Prison. Frazier alleges that chemical agents were used for retaliation on two occasions. The first was in retaliation for the demands he was making on security staff. The second incident occurred as a result of the grievances which he filed against some of the correctional officers. He claims to have suffered an asthma attack and second-degree chemical burns on his neck and left ear from the first incident and aggravated burns on his neck and forearms from the second incident.
(8) Plaintiff Morris J. Gilbert (Gilbert) is housed at the Charlotte Correctional Institution. He claims that correctional officers “repeatedly sprayed with OC pepper spray and CS tear gas as punishment for allegedly committing an obscene act at an earlier time.” (Id., p. 32.) Gilbert makes no allegations regarding injuries.
(9) Plaintiff JiJuan T. Hagans (Hagans) has asthma and mental health problems relating to depression, and is currently imprisoned at the Union Correctional
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Institution. He complains about the unjustified use of chemical agents on him which occurred on three occasions. Hagans alleges that at the first incident the correctional officers sprayed chemical agents into his cell because he refused to comply with and questioned an order directing him to cease watching the discharge of chemical agents into another cell. As for the second and third incidents, Hagans makes a conclusory allegation that chemical agents were used on him without justification. As a result of the non-spontaneous use of chemical agents during these incidents, he claims to suffer life-threatening asthma attacks.
(10) Plaintiff Benjamin LaFlower (LaFlower) is imprisoned at the Charlotte Correctional Institution. He complains that correctional officers sprayed chemical agents into his cell as “retaliation for making a disrespectful comment to Officers Glover and Ronga the previous day.” (Id., p. 37.) During this alleged incident, the correctional officers also used a long metal bar to push LaFlower away from the food flap, which was used to administer the chemical agents into the cell. As a result, LaFlower’s hand was cut by the long metal bar. No chemical agent injury was alleged.
(11) Plaintiff Curt Massie (Massie) has been diagnosed with obsessive compulsive disorder and delusional disorder. He was incarcerated at the Florida State Prison at the time of the alleged incident, and is currently imprisoned at the Charlotte Correctional Institution in Close Management II status. He alleges that chemical agents were used as punishment for “making a funny face behind a nurse’s back.” (Id., p. 38.) Moreover, there were no warnings issued before the chemical agents were used. After the chemical agents were discharged, a correctional officer used hot water to purposely intensify the pain he experienced from the chemical agents, and he suffered second-degree chemical burns on his left arm and leg, back and hip. A second use of a chemical agent occurred the following year, but no details are given in the Complaint.
(12) Plaintiff Antonio J. McCloud (McCloud) is an asthmatic currently housed at the Everglades Correctional Institution; however, at the time of the alleged incident, he was incarcerated at Washington Correctional Institution in a Close Management cell. McCloud alleges that chemical agents were used on him because he refused
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to consent to share a cell with another inmate. He further claims that his exposure to “chemical agents caused him to experience breathing difficulties.” (Id., p. 41.) Additionally, he allegedly suffered mental and emotional distress as a result of the incident.
(13) Plaintiff Lamar A. Miffin (Miffin) was being temporarily moved from the Florida State Prison to the Washington Correctional Institution, where the alleged chemical agent spraying incident occurred. Miffin claims that, after the correctional officers issued a warning to refrain from testifying against the State, he was sprayed with chemical agents without justification. He further maintains that he suffered chest pains and that the skin peeled off his head, neck, and upper back.
(14) Plaintiff Issac Sharpe (Sharpe) was also being temporarily moved from the Florida State Prison to the Washington Correctional Institution, where the alleged chemical agent spraying incident occurred. He is currently housed in the Union Correctional Institution. Sharpe claims that, after the correctional officers issued a warning to refrain from testifying against the State, he was sprayed with chemical agents without justification. As a result of this exposure, he alleges that he suffered two asthma attacks.
(15) Plaintiff Kunta Porter (Porter) is housed in Close Management I status at Charlotte Correctional Institution, where he alleges that he was sprayed with chemical agents for speaking with other inmates in nearby cells. Porter has made no injury allegations.
(16) Plaintiff Samuel Strother (Strother) was released from the Charlotte Correctional Institution in May, 2005. He claims that, on two separate occasions, he was sprayed with chemical agents because he refused to comply with orders. He also maintains that he suffered asthma attacks on both occasions.
(17) Plaintiff Jeremiah Thomas (Thomas) is currently housed in the Union Correctional Institution and has an extensive history of psychiatric problems and asthma. Thomas alleges that he was sprayed with chemical agents on, at least, nineteen occasions while he was incarcerated at the Florida State Prison. He claims that he was sprayed with chemical agents in response to his request for medical assistance in July 2000. Thomas also
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maintains that chemical agents were used on him approximately six other times in July and August 2000. In September 2000, Thomas complains that he was sprayed with chemical agents without any warnings. He asserts that he suffered severe burns on his ear, neck, abdomen, left arm, upper back, and lower right leg.
(18) Plaintiff Eugene E. Ulrath (Ulrath) is currently housed in the Union Correctional Institution. At the time of the alleged incidents, he was incarcerated at the Florida State Prison. Ulrath claims that he was sprayed with chemical agents without any warning or justification after declaring a psychological emergency, which was ignored. He further asserts that he suffered chemical burns and developed blisters on his back, buttock, and leg.
(19) Plaintiff Reginald Williams (Williams) is currently incarcerated in the Santa Rosa Correctional Institution, but the alleged incidents occurred while he was imprisoned at the Florida State Prison. Williams claims that the correctional officers sprayed him with chemical agents in retaliation for litigation that he filed against the prison officials. He further maintains that he was sprayed with chemical agents directly in the face. As a result, his right eye is permanently damaged and his vision has been impaired. Williams also asserts that, after the exposure to the chemical agents, the correctional officers subjected him to a hot water shower which aggravated the burns.
II.
“Questions concerning class certification are left to the
sound discretion of the district court.” Cooper v. Southern Co.,
390 F.3d 695, 712 (11th Cir. 2004). “For a district court to
certify a class action, the named plaintiffs must have standing,
and the putative class must meet each of the requirements specified
in Federal Rule of Civil Procedure 23(a), as well as at least one
of the requirements set forth in Rule 23(b).” Klay v. Humana,
Inc., 382 F.3d 1241, 1250 (11th Cir. 2004), cert. denied, 125 S.Ct.
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877 (2005). The four threshold requirements are (1) numerosity: the class is so numerous that joinder of all members is impractical; (2) commonality: questions of law or fact are common to the class; (3) typicality: the representatives of the class present claims or defenses that are typical of the class; (4) adequacy: the representatives of the class will fairly and adequately protect the interests of the class. Fed. R. Civ. P. 23(a); Turner v. Beneficial Corp., 242 F.3d 1023, 1025 (11th Cir.) (en banc), cert. denied, 534 U.S. 820 (2001); Pickett v. Iowa Beef Processors, 209 F.3d 1276, 1279 (11th Cir. 2000). In this case, plaintiffs seek class certification under Rule 23(b)(2), which requires plaintiffs to show that defendants have acted in ways generally applicable to the class, making declaratory or injunctive relief appropriate. “The initial burden of proof to establish the propriety of class certification rests with the advocate of the class.” Rutstein v. Avis Rent-A-Car Sys., Inc., 211 F.3d 1228, 1233 (11th Cir. 2000), cert. denied, 532 U.S. 919 (2001).
Defendants oppose class certification because the proposed class definition is impermissibly overbroad, and the proposed class and any possible subclasses fail to satisfy the requirements of standing, typicality, and adequacy of representation.
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A. Standing: Defendants first contend that plaintiffs lack Article III
standing to raise the Eighth Amendment claim on behalf of a class. Defendants assert that upon close inspection of plaintiffs’ submission, only seven inmates suffered injuries other than the skin or eye redness or irritation that pepper spray was designed to produce, and that this does not justify a class action of the magnitude sought by plaintiffs. Additionally, defendants assert that plaintiffs have not adequately shown a sufficient likelihood of future injury.
A prerequisite to class certification is that “it must be established that the proposed class representatives have standing to pursue the claims as to which classwide relief is sought.” Wooden v. Board of Regents of Univ. Sys. of Ga., 247 F.3d 1262, 1287 (11th Cir. 2001). The Supreme Court has “repeatedly held that a class representative must be part of the class and possess the same interest and suffer the same injury as the class members.” Prado-Steiman v. Bush, 221 F.3d 1266, 1279 (11th Cir. 2000), quoting General Tel. Co. of Southwest v. Falcon, 457 U.S. 147, 156 (1982). “[A] plaintiff cannot represent a class unless he has standing to raise the claims of the class he seeks to represent.” Murray v. U.S. Bank Trust Nat’l Ass’n, 365 F.3d 1284, 1288 n.7 (11th Cir. 2004). The district court therefore must determine that at least one named class representative has Article III standing to
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raise each class claim or subclaim. Prado-Steiman, 221 F.2d at 1279; Murray, 365 F.3d at 1288 n.7.
Additionally, plaintiffs seeking injunctive relief lack standing unless they allege facts giving rise to an inference that they will suffer future injury at the hands of the defendants. Shotz v. Cates, 256 F.3d 1077, 1081 (11th Cir. 2001). “[A] party has standing to seek injunctive relief only if the party alleges, and ultimately proves, a real and immediate – as opposed to a merely conjectural or hypothetical – threat of future injury.” Church v. City of Huntsville, 30 F.3d 1332, 1336 (11th Cir. 1994), citing City of Los Angeles v. Lyons, 461 U.S. 95, 102 (1983); see also Bowen v. First Family Fin. Servs., Inc., 233 F.3d 1331, 1340 (11th Cir. 2000). “[P]ast exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief . . . if unaccompanied by any continuing, present adverse effects.” Lyons, 461 U.S. at 102 (quotation omitted). Thus, for a court to have jurisdiction to award declaratory or injunctive relief, plaintiffs “must assert a reasonable expectation that the injury they have suffered will continue or will be repeated in the future.” Malowney v. Federal Collection Deposit Group., 193 F.3d 1342, 1347 (11th Cir. 1999).
In a prior Order (Doc. #115), the Court rejected defendants’ argument that plaintiffs did not adequately allege standing to pursue their individual claims. Even if defendants are correct
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that only seven inmates suffered sufficiently severe injuries from the pepper spray, this does not negate the possibility of a proper class. Defendants’ reliance on Ford v. NYL Care Health Plans is misplaced because that court referenced the lack of injury in its discussion of typicality, not standing. 190 F.R.D. 422, 426 (S.D. Tex. 1999). The Court finds that plaintiffs have satisfied the pleading requirement for standing by alleging that plaintiffs remain incarcerated in the same offending facilities, the nonspontaneous use of chemical agents remains an available option for the correctional officers at these institutions, and the statistics concerning the use of chemical agents coupled with plaintiffs’ individual histories make such chemical use reasonably likely in the future. Because at least one of the named putative class members in this case satisfies the standing requirements, the Court finds that plaintiffs have standing to seek certification of a class under the Eleventh Circuit standard.3 B. Rule 23(a) Requirements:
(1) Numerosity Rule 23(a)(1) requires that the class is so numerous that joinder of all members is impractical. Practicability of joinder depends on many factors, including the size of the class, ease of
3The Court finds, however, that plaintiff Samuel Strother is not a suitable class representative because he was released from custody on May 21, 2005, according to the Department of Correction website.
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identifying its numbers and determining their addresses, facility of making service on them if joined, and their geographic dispersion. Kilgo v. Bowman Transp., Inc., 789 F.2d 859, 878 (11th Cir. 1986). There is no specific number of class members necessary to evidence impracticability of joinder and it is not necessary that precise number of class members be known; the plaintiff, however, must show some evidence or reasonable estimate of the number of class members. Id.
Plaintiffs urge this Court to find numerosity based on the statistical evidence that the non-spontaneous use of chemical agents was used more than 6,000 times at the subject correctional institutions. (Doc. #167, p. 7.) Plaintiffs also submit affidavits and other exhibits illustrating the use of chemical agents in the subject correctional institutions and other facilities. Moreover, plaintiffs contend that the inclusion of future inmates as putative class members will make joinder impracticable. Defendants do not address the numerosity requirement, other than in connection with their standing argument. (Doc. #170, pp. 2-3.)
The class described in the Complaint (Doc. #1, p. 8) includes present and future inmates who are or will be housed in segregated housing in all of the Florida correctional institutions. This potentially includes every inmate taken into the custody of the Florida Department of Corrections, since each may be housed in
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segregated housing at sometime in his or her incarcerative career.
Even when limited to those who are subjected to the non-spontaneous
use of force, it is clear that this proposed class satisfies the
numerosity requirement of Rule 23. (2) Typicality and Commonality4
“Typicality measures whether a sufficient nexus exists between
the claims of the named representatives and those of the class at
large.” Wooden, 247 F.3d at 1287. Typicality is satisfied where
the named plaintiffs’ claims “arise from the same event or pattern
or practice and are based on the same legal theory” as the claims
of the class. Kornberg v. Carnival Cruise Lines, Inc., 741 F.2d
1332, 1337 (11th Cir. 1984), cert. denied, 470 U.S. 1004 (1985).
4“The typicality and commonality requirements are distinct but interrelated, as the Supreme Court has made clear:
The commonality and typicality requirements of Rule 23(a) tend to merge. Both serve as guideposts for determining whether under the particular circumstances maintenance of a class action is economical and whether the named plaintiff’s claim and the class claims are so interrelated that the interests of the class members will be fairly and adequately protected in their absence.
Cooper, 390 F.3d at 713, quoting Falcon, 457 U.S. at 157 n.13. “The commonality and typicality requirements overlap. Both requirements focus on whether a sufficient nexus exists between the legal claims of the named class representatives and those of individual class members to warrant class certification.” Cooper, 390 F.3d at 713, quoting Prado-Steiman, 221 F.3d at 1278. “Traditionally, commonality refers to the group characteristics as a whole and typicality refers to the individual characteristics of the named plaintiff in relation to the class.” Prado-Steiman, 221 F.3d at 1279.
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“A class representative must possess the same interest and suffer the same injury as the class members in order to be typical under Rule 23(a)(3).” Murray v. Auslander, 244 F.3d 807, 811 (11th Cir. 2001)(citation omitted). Neither typicality or commonality require that all putative class members share identical claims, and both may be satisfied even if some factual differences exist between the claims of the named representatives and the claims of the class at large. Prado-Steiman, 221 F.3d at 1279 n. 14. “The typicality requirement may be satisfied despite substantial factual differences, however, when there is a strong similarity of legal theories.” Auslander, 244 F.3d at 811 (citation omitted). “Nevertheless, the named plaintiffs’ claims must still share the same essential characteristics as the claims of the class at large.” Cooper, 390 F.3d at 714 (citation omitted).
“[T]he commonality requirement measures the extent to which all members of a putative class have similar claims.” Cooper, 390 F.3d at 714. “Under the Rule 23(a)(2) commonality requirement, a class action must involve issues that are susceptible to class-wide proof.” Auslander, 244 F.3d at 811 (citation omitted). While the merits of plaintiffs’ claim are not before the Court in a ruling on class certification, it is sometimes necessary to look behind the pleadings because evidence relevant to the commonality requirement is often intertwined with the merits. Hudson v. Delta Air Lines,
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Inc., 90 F.3d 451, 457 (11th Cir. 1996), cert. denied, 519 U.S. 1149 (1997).
Here, all of the plaintiffs complain of unjustified or excessive use of force, and each plaintiff alleged that he was victimized by a common policy of chemical agent misuse for retaliatory or excessive penological purposes at the subject correctional institutions. Specifically, plaintiffs assert that their individual injuries arise out of the same pattern and practice of unjustified and excessive use of force and the same misuse of force policy that gives rise to the injuries of the putative class members. The Court cannot agree, and finds that plaintiffs do not satisfy the typicality requirement.
Plaintiffs seek to represent a very board class that purports to represent all present or future inmates housed in or who will be housed in some of type of segregated housing in all of the Florida correctional institutions. The broadness of this purported class is tempered somewhat by the requirement that such inmates have been or in the future may be subjected to non-spontaneous use of force by way of chemical agents used maliciously and sadistically for the purpose of causing harm and not in a good faith effort to maintain or restore order. This limitation, and in this context the very fact-intensive nature of an Eighth Amendment claims, require a detailed factual analysis to simply determine which individual inmates are within the proposed class. Additionally, the decisions
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to use chemical agents affecting inmates were and are made by correctional officers in disparate locations and based on the individual inmate’s behavior, action, and/or response to the attending correctional officers and staff. The existence of individual situations and the importance of factual distinctions in determining whether the application of force is justified or excessive fatally undermines the typicality between the named plaintiffs and the proposed class members or any possible sub-class members.
Plaintiffs also contend that all members of the putative class share common factual and legal questions because (1) plaintiffs presently live in some type of segregated housing; (2) nonspontaneous use of chemical agents has occurred 6,045 times in those units during the relevant period, and 6,032 inmates were the target of chemical agent use; and (3) “the chemical agents are used contrary to the rules of the Department of Corrections....” (Doc. #167, pp. 8-9.) The Court concludes that it is impossible to say that the affidavits of the named plaintiffs and the ways in which they claimed to have experienced chemical agent misuse could be fairly compared with the history or individual experiences of absent class members, or that the claims of class members share such common features that rulings could be fashioned to fairly adjudicate the claims as a group. Class certification is sought by prisoners who are housed in various Florida correctional
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Case 2:03-cv-00526-JES-DNF Document 205 Filed 06/21/2005 Page 19 of 23
institutions which are monitored and guarded by hundreds of correctional officers. When a situation calls for the nonspontaneous use of chemical agents, the attending correctional officer makes a decision to discharge chemical agents under varying factors, e.g., whether the prisoner’s action is causing a disturbance with other inmates, whether the attending correctional officer can safely extract the prisoner from the cell, if necessary, whether the attending correctional officer needs to prevent the prisoner from self-inflicting harm, etc. In short, each individual claim has differing factors, and consequently, these variables make it impossible to fairly adjudicate the individual claims. The Court finds that the commonality requirement is not satisfied.
This is not to say that Eighth Amendment claims can never be presented in a class action. For example, in Chandler v. Crosby, a class of all death row inmates was certified in a suit alleging that the high temperatures in the cells violated the Eighth Amendment. 379 F.3d 1278 (11th Cir. 2004). The high temperatures applied equally to all inmates, and either did or did not violate the Eighth Amendment without regard to the individual circumstances of the inmate. From a legal perspective, however, this case has more in common with Cooper, where the Eleventh Circuit held that the district court had not abused its discretion in denying class certification based on the plaintiffs’ failure to meet the
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typicality and commonality requirement. 309 F.3d at 714. That case involved a challenge to the employment practices and policies relating to hiring, compensation, and promotion at four companies, which provided a wide range of energy-related products and services throughout the southeastern United States. Id. at 715. Plaintiffs attempted to represent a class of all black employees of the defendants, at all levels of the corporate hierarchy of all the defendant companies. In upholding the district court’s decision denying class certification, the Eleventh Circuit reasoned that, because the plaintiffs asserted broad claims on behalf of a broad class, they were required to identify representative plaintiffs who shared those broad claims. However, while the different named plaintiffs may have had claims that were typical of some conceivable subgroups of the overall class, the seven named plaintiffs, collectively, did not have claims that would have been typical of the entire class. Id.
(3) Adequacy of Representation Rule 23(a)(4) requires that the parties representing a class fairly and adequately protect the interests of the class. Valley Drug Co. v. Geneva Pharms., Inc., 350 F.3d 1181, 1189 (11th Cir. 2003). This requirement applies to both the named plaintiffs and counsel. London v. Wal-Mart, Inc., 340 F.3d 1246, 1253 (11th Cir. 2003). The purpose of the adequacy requirement is to protect the legal rights of the unnamed class members. Kirkpatrick v. J.C.
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Bradford & Co., 827 F.2d 718, 726 (11th Cir. 1987), cert. denied, 485 U.S. 959 (1988). “This ‘adequacy of representation’ analysis encompasses two separate inquiries: (1) whether any substantial conflicts of interest exist between the representatives and the class; and (2) whether the representatives will adequately prosecute the action.” Valley Drug Co., 350 F.3d at 1189 (citation omitted). Because all potential members of a class will be bound by the effect of a judgment, the Court must inquire into whether plaintiffs’ counsel is qualified to carry out the litigation, whether plaintiffs have interests antagonistic to the rest of the class, and whether the plaintiffs possess the “personal characteristics and integrity necessary to fulfill the fiduciary role of class representative.” Kirkpatrick, 827 F.2d at 726. While minor conflicts will not defeat class certification, certification will be denied where the economic interests and objectives of the named representatives (or their attorneys) differ significantly from the economic interests and objectives of the unnamed class members. Valley Drug Co., 350 F.3d at 1189-90.
Defendants do not question the qualifications, experience or ability of plaintiffs’ counsel. Defendants argue, however, that plaintiffs’ counsel also represent the named plaintiffs in a separate section 1983 suit seeking money damages in the Middle
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Case 2:03-cv-00526-JES-DNF Document 205 Filed 06/21/2005 Page 22 of 23
District of Florida.5 Defendants argue that, as a result, potential conflicts and/or antagonistic interests may develop among plaintiffs which render counsel inadequate to represent the putative class. (Doc. #170, p. 5.)
Seeking injunctive relief while simultaneously pursuing damages does not necessarily create a conflict of interest in the class representation context. Defendants have not cited any case law which denied class certification on this ground. The Court finds this requirement has been satisfied. C. Rule 23(b)(2) Requirements:
Although plaintiffs have not met all four requirements of Rule 23(a), the Court will complete the analysis as to whether plaintiffs satisfy Rule 23(b)(2). “Under Rule 23(b)(2), class certification is appropriate when the requirements of Rule 23(a) are met and defendant “has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole.” Cooper, 390 F.3d at 729 (quoting Rule 23(b)(2)). The Court finds that this requirement has not been satisfied. As discussed above, the use of force in general and the use of chemical agents in particular is fact-intensive and does not
5The separate action is styled as Butler v. Crosby, No. 3-04cv-917-TJC-MMH (M.D. Fla.), and was filed on September 20, 2004.
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Case 2:03-cv-00526-JES-DNF Document 205 Filed 06/21/2005 Page 23 of 23 lend itself to a finding that the grounds in any given instance was generally applicable to the class.
Accordingly, it is now ORDERED: Plaintiffs’ Motion for Class Certification (Doc. #166) is DENIED. DONE AND ORDERED at Fort Myers, Florida, this 21st day of June, 2005.
Hon. Timothy J. Corrigan Hon. Douglas N. Frazier Counsel of Record
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 </s> Case 2:03-cv-00526-JES-DNF Document 206 Filed 06/21/2005 Page 1 of 3

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA
FT. MYERS DIVISION

DANNY E. BROWN, SYLVESTER BUTLER, KENNETH CAUDILL, SAMMY J. DOUSE, WILLIE ENGLISH, SIDNEY EVERETT, KELVIN FRAZIER, MORRIS J. GILBERT, JIJUAN T. HAGANS, TROY D. HALL, BENJAMIN LAFLOWER, CURT MASSIE, ANTONIO J. MCCLOUD, LAMAR A. MIFFIN, MICHAEL L. MONTGOMERY, KUNTA PORTER, ISSAC SHARPE, SAMUEL STROTHER, JEREMIAH THOMAS, EUGENE E. ULRATH, GLENN WHEELER, REGINALD WILLIAMS,

Plaintiffs,

-vs-

Case No. 2:03-cv-526-FtM-29DNF

SECRETARY, DEPARTMENT OF CORRECTIONS, GERALD H. ABDULWASI, JOSEPH THOMPSON, CHESTER LAMBIN, JOSEPH PETROVSKY, WENDELL WHITEHURST,

Defendants. _____________________________________/

ORDER

This cause came on for consideration on the following motion(s) filed herein:

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Case 2:03-cv-00526-JES-DNF Document 206 Filed 06/21/2005 Page 2 of 3
MOTION: PLAINTIFFS’ MOTION TO COMPEL INSPECTION OF PRISON FACILITIES (Doc. No. 181)
FILED: March 18, 2005 _____________________________________________________________ THEREON it is ORDERED that the motion is DENIED. The District Court recently entered an Order which denied the Plaintiffs’ Motion for Class Certification. Many of the issues raised in the Motion to Compel Inspection were tied to the need for discovery for the class. The parties are to meet telephonically to attempt to resolve the issues regarding the inspections of the facilities now that class certification has been determined. If the parties cannot resolve the issues, then Plaintiffs have leave to file a new motion to compel.
MOTION: PLAINTIFFS’ MOTION TO EXPEDITE RULING ON PLAINTIFFS’ MOTION TO COMPEL INSPECTION OF PRISON FACILITIES (Doc. No. 183)
FILED: March 18, 2005 _____________________________________________________________ THEREON it is ORDERED that the motion is DENIED.
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Case 2:03-cv-00526-JES-DNF Document 206 Filed 06/21/2005 Page 3 of 3

MOTION:

PLAINTIFFS’ UNOPPOSED MOTION FOR ENLARGEMENT OF TIME TO DISCLOSE EXPERT WITNESS REPORTS, COMPLETE DISCOVERY AND FILE DISPOSITIVE MOTIONS (Doc. No. 198)

FILED: May 23, 2005 _____________________________________________________________

THEREON it is ORDERED that the motion is GRANTED.

Within eleven (11) days from the date of this Order, the parties are to confer and submit proposed dates for the disclosure of expert witness reports, deadline to complete discovery, and dispositive motion deadline.

DONE and ORDERED in Chambers in Ft. Myers, Florida this 21st day of June , 2005.

Copies: All Parties of Record

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 </s> Case 2:03-cv-00526-JES-DNF Document 208 Filed 06/23/2005 Page 1 of 2

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA
FT. MYERS DIVISION

DANNY E. BROWN, SYLVESTER BUTLER, KENNETH CAUDILL, SAMMY J. DOUSE, WILLIE ENGLISH, SIDNEY EVERETT, KELVIN FRAZIER, MORRIS J. GILBERT, JIJUAN T. HAGANS, TROY D. HALL, BENJAMIN LAFLOWER, CURT MASSIE, ANTONIO J. MCCLOUD, LAMAR A. MIFFIN, MICHAEL L. MONTGOMERY, KUNTA PORTER, ISSAC SHARPE, SAMUEL STROTHER, JEREMIAH THOMAS, EUGENE E. ULRATH, GLENN WHEELER, REGINALD WILLIAMS,

Plaintiffs,

-vs-

Case No. 2:03-cv-526-FtM-29DNF

SECRETARY, DEPARTMENT OF CORRECTIONS, GERALD H. ABDULWASI, JOSEPH THOMPSON, CHESTER LAMBIN, JOSEPH PETROVSKY, WENDELL WHITEHURST,

Defendants. _____________________________________/

ORDER

This cause came on for consideration on the following motion(s) filed herein:

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Case 2:03-cv-00526-JES-DNF Document 208 Filed 06/23/2005 Page 2 of 2
MOTION: MOTION TO COMPEL RESPONSE OR TO BE RELEASED FROM THIS ACTION (Doc. No. 207)
FILED: June 21, 2005 _____________________________________________________________ THEREON it is ORDERED that the motion is DENIED.
Plaintiff Benjamin LaFlower filed this Motion pro se requesting that the Court order his counsel, Lisa White Shirley to respond to his correspondence with her, or in the alternative, release him from this action. Pursuant to Local Rule 2.03(d), “[a]ny party for whom a general appearance of counsel has been made shall not hereafter take any step or be heard in the case in proper person, absent prior leave of Court.” Mr. LaFlower is not permitted to file any documents with the Court.
IT IS FURTHER ORDERED: Ms. Shirley is directed to review Mr. LaFlower’s Motion to Compel Response or to be Released from this Action (Doc. 207), and take any steps that are appropriate in resolving the issues raised by Mr. LaFlower. DONE and ORDERED in Chambers in Ft. Myers, Florida this 23rd day of June, 2005.
Copies: All Parties of Record Benjamin LaFlower
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 </s> Case 2:03-cv-00526-JES-DNF Document 215 Filed 07/18/2005 Page 1 of 4

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA FORT MYERS DIVISION

DANNY E. BROWN, SYLVESTER BUTLER, KENNETH CAUDILL, SAMMY J. DOUSE, WILLIE ENGLISH, SIDNEY EVERETT, KELVIN FRAZIER, MORRIS J. GILBERT, JIJUAN T. HAGANS, BENJAMIN LAFLOWER, CURT MASSIE, ANTONIO J. MCCLOUD, LAMAR A. MIFFIN, KUNTA PORTER, ISSAC SHARPE, JEREMIAH THOMAS, EUGENE E. ULRATH, REGINALD WILLIAMS,

Plaintiffs,

vs.

Case No. 2:03-cv-526-FtM-29DNF

SECRETARY, DEPARTMENT OF CORRECTIONS, GERALD H. ABDUL-WASI, JOSEPH THOMPSON, CHESTER LAMBIN, JOSEPH PETROVSKY, WENDELL WHITEHURST,

Defendants. _____________________________________/

OPINION AND ORDER This matter comes before the Court on Plaintiffs’ Motion for Reconsideration of Opinion and Order Denying Class Certification (Doc. #210) filed on June 29, 2005. Defendants filed their Opposition (Doc. #212) on July 8, 2005.
I. Reconsideration of a court’s previous order is an extraordinary remedy and, thus, is a power which should be used sparingly. American Ass’n of People with Disabilities v. Hood, 278 F. Supp. 2d 1337, 1339 (M.D. Fla. 2003), citing Taylor Woodrow Constr. Corp. v. Sarasota/Manatee Airport Auth., 814 F. Supp. 1072,

Case 2:03-cv-00526-JES-DNF Document 215 Filed 07/18/2005 Page 2 of 4
1072-73 (M.D. Fla. 1993). The courts have “delineated three major grounds justifying reconsideration: (1) an intervening change in controlling law; (2) the availability of new evidence; (3) the need to correct clear error or prevent manifest injustice.” Sussman v. Salem, Saxon & Nielsen, P.A., 153 F.R.D. 689, 694 (M.D. Fla. 1994).
“A motion for reconsideration should raise new issues, not merely readdress issues litigated previously.” PaineWebber Income Props. Three Ltd. P’ship v. Mobil Oil Corp., 902 F. Supp. 1514, 1521 (M.D. Fla. 1995). The motion must set forth facts or law of a strongly convincing nature to demonstrate to the court the reason to reverse its prior decision. Taylor Woodrow, 814 F. Supp. at 1073; PaineWebber, 902 F. Supp. at 1521. “When issues have been carefully considered and decisions rendered, the only reason which should commend reconsideration of that decision is a change in the factual or legal underpinning upon which the decision was based. Taylor Woodrow, 814 F. Supp. at 1072-73.
A motion for reconsideration does not provide an opportunity to simply reargue – or argue for the first time – an issue the Court has once determined. Court opinions “are not intended as mere first drafts, subject to revision and reconsideration at a litigant’s pleasure.” Quaker Alloy Casting Co. v. Gulfco Indus., Inc., 123 F.R.D. 282, 288 (N.D. Ill. 1988). “The burden is upon the movant to establish the extraordinary circumstances supporting reconsideration.” Mannings v. School Bd. of Hillsborough County, Fla., 149 F.R.D. 235, 235 (M.D. Fla. 1993). Unless the movant’s
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Case 2:03-cv-00526-JES-DNF Document 215 Filed 07/18/2005 Page 3 of 4

arguments fall into the limited categories outlined above, a motion

to reconsider must be denied.

II.

In its previous Order (Doc. #205), the Court denied

Plaintiffs’ Motion for Class Certification finding, inter alia,

that plaintiff failed to satisfy the typicality and commonality

requirements under Fed. R. Civ. P. 23(a)(2) and (3) and the

injunctive relief requirement under Fed. R. Civ. P. 23(b)(3). In

their Motion for Reconsideration, plaintiffs reargue the merits of

their amended motion for class certification.1

Moreover,

plaintiffs cannot successfully contend that their arguments are based on new evidence.2 Similarly, plaintiffs do not contend that

1Plaintiffs provide a litany of cases illustrating when courts have granted class certification where plaintiffs are prisoners. None of these cases are controlling on this Court. While Anderson v. Garner, 22 F. Supp. 2d 1379 (N.D. Ga. 1997), and Austin v. Hopper, 15 F. Supp. 2d 1210 (M.D. Ala. 1998), are decisions made by other district courts in the Eleventh Circuit, the facts in Anderson and Austin are clearly distinguishable. Anderson involved a one-time “shakedown” event on a specific day at a particular facility. Austin involved the use of a hitching post as a disciplinary tool in inmate work squads. Unlike the plaintiffs in Anderson and Austin, plaintiffs in this case allegedly suffered injuries from various correctional officers under differing circumstances. The Court finds that these facts do not satisfy the commonality and typicality elements.
2Plaintiffs’ expert’s full report does not constitute new evidence as plaintiffs could have submitted the report before the Court issued its Order. Mays v. U.S. Postal Serv., 122 F.3d 43, 46 (11th Cir. 1997) (“[W]here a party attempts to introduce previously unsubmitted evidence on a motion to reconsider, the court should not grant the motion absent some showing that the evidence was no available during the pendency of the motion.”). In any event, the full report does not persuade the Court that class certification
(continued...)
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Case 2:03-cv-00526-JES-DNF Document 215 Filed 07/18/2005 Page 4 of 4
reconsideration is necessary to correct clear error or prevent manifest injustice. Finally, plaintiffs do not contend that there has been an intervening change in controlling law. In short, plaintiffs have not shown that they are entitled to the extraordinary remedy which they seek. Thus, their motion for reconsideration is due to be denied.
Accordingly, it is now ORDERED: Plaintiffs’ Motion for Reconsideration of Opinion and Order Denying Class Certification (Doc. #210) is DENIED. DONE AND ORDERED at Fort Myers, Florida, this 18th day of July, 2005.
Copies: Magistrate Judge Counsel of Record
2(...continued) would be appropriate.
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 </s> Case 2:03-cv-00526-JES-DNF Document 228 Filed 11/28/2005 Page 1 of 3

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION

DANNY E. BROWN, SYLVESTER BUTLER, KENNETH CAUDILL, SAMMY J. DOUSE, WILLIE ENGLISH, SIDNEY EVERETT, KELVIN FRAZIER, MORRIS J. GILBERT, JIJUAN T. HAGANS, BENJAMIN LAFLOWER, CURT MASSIE, ANTONIO J. MCCLOUD, LAMAR A. MIFFIN, KUNTA PORTER, ISSAC SHARPE, JEREMIAH THOMAS, EUGENE E. ULRATH, REGINALD WILLIAMS,

Plaintiffs,

-vs-

Case No. 2:03-cv-526-FtM-29DNF

SECRETARY, DEPARTMENT OF CORRECTIONS, GERALD H. ABDUL-WASI, JOSEPH THOMPSON, CHESTER LAMBIN, JOSEPH PETROVSKY, WENDELL WHITEHURST,

Defendants. _____________________________________/

JUDGMENT IN A CIVIL CASE

Decision by Court.

IT IS ORDERED AND ADJUDGED

That pursuant to the Order entered November 28, 2005, this case is dismissed without prejudice, pursuant to Fed.R.Civ.P. 41(a)(1), with each party to bear its own costs and expenses.

Date: November 28, 2005 Copies: All Parties of Record

SHERYL L. LOESCH, CLERK By: By: /s/ Sherry Upshaw, Deputy Clerk

Case 2:03-cv-00526-JES-DNFCIVILDAoPcPuEmAeLnStC2H2E8CKLIFSTiled 11/28/2005 Page 2 of 3
1. Appealable Orders: Courts of Appeals have jurisdiction conferred and strictly limited by statute:
Appeals from Final Order Pursuant to 28 U.S.C. §1291: Only final judgments (or orders) of district courts (or final orders of bankruptcy courts which have been affirmed by a district court under 28 U.S.C. § 158) usually are appealable. A “final” order is one which ends the litigation on its merits and leaves nothing for the district court to do but execute the judgment. A magistrate’s report and recommendation is not usually final until judgment thereon is entered by a district court judge. Compare Fed.R.App.P. 5.1, 28 U.S.C. §636(c).
In cases involving multiple parties or multiple claims, a judgment as to fewer than all parties or all claims is not a final, appealable decision. Fed.R.Civ.P. 54(b) does permit the district court to expressly direct entry of the judgment as to fewer than all of the claims or parties. See Pitney Bowes, Inc. v. Mestre, 701 F.2d 1365, 1369 (11th Cir. 1983), cert. denied 464 U.S. 893 (1983). Certain matters, such as attorney’s fees and costs, are collateral and do not affect the time for appealing from the judgment on the merits. Buchanan v. Stanships, Inc., 485 U.S. 265, 108 S.Ct. 1130, 99 L.Ed 2d 289 (1988): Budinich v. Becton, 486 U.S. 196, 108 S.Ct. 1717, 100 L.Ed 2d 178 (1988).
Appeals Pursuant to 28 U.S.C. §1292(b) and FRAP 5: The certificate specified in 28 U.S.C. §1292(b) must be obtained before an application for leave to appeal is filed in the Court of Appeals. Denial or refusal by the district court to issue the certificate is not itself applicable.
Appeals Pursuant to 28 U.S.C. §1292(a): Pursuant to this statute, appeals are permitted from orders “granting, continuing, modifying, refusing or dissolving injunctions or refusing to dissolve or modify injunctions....” and “[i]nterlocutory decrees...determing the rights and liabilities of parties to admiralty cases....” This statute does not permit appeals from temporary restraining orders.
Appeals Pursuant to Judicially Created Exceptions to the Finality Rule: These limited exceptions are discussed in many cases, including (but not limited to): Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed 2d 1528 (1949); Forgay v. Conrad, 6 How. (47 U.S.) 201 (1848); Gillespie v. United States Steel Corp., 379 U.S. 148, 152, 85 S.Ct. 308, 311, 13 L.Ed. 2d 199 (1964); Atlantic Federal Savings & Loan Assn. Of Ft. Lauderdale v. Blythe Eastman Paine Webber, Inc., 890 F.2d 371 (11th Cir. 1989). Compare Coopers and Lybrand v. Livesay, 437 U.S. 463, 98 S.Ct. 2454, 57 L.Ed 2d 351 (1978); Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271, 108 S.Ct. 1133, 99 L.Ed. 2d 296 (1988).
2. Time for Filing: To be effective a notice of appeal must be timely filed. Timely filing is jurisdictional. In civil case FRAP 4(a) and 4(c) set the following time limits:
FRAP 4(a)(1): The notice of appeal required by FRAP 3 “must be filed with the clerk of the district court within 30 days after the date of entry of the judgment or order appealed from; but if the United States or an officer or agency thereof is a party, the notice of appeal may be filed by any party within 60 days after such entry....” (Emphasis added). To be effective, the notice of appeal generally must be filed in the district court clerk’s office within the time permitted. If a notice of appeal is mailed, it must be timely received and filed by the district court to be effective. FRAP 4( c) establishes special filing provisions for notices of appeal filed by an inmate confined in an institution, as discussed below.
FRAP 4(a)(3): “If one party timely files a notice of appeal, any other party may file a notice of appeal within 14 days after the date when the first notice was filed, or within the time otherwise prescribed by this Rule 4(a), whichever period last expires.” (Emphasis added).
FRAP 4(a)(4): If any party makes a timely motion in the district court under the Federal Rules of Civil Procedure of a type specified in FRAP 4(a)(4), the time for appeal for all parties runs from the entry of the order disposing of the last such timely filed motion outstanding.
FRAP 4(a)(5) and FRAP 4(a)(6): The district court has power to extend the time to file a notice of appeal. Under FRAP 4(a)(5) the time may be extended if a motion for extension is filed within 30 days after expiration of the time otherwise permitted to file a notice of appeal. Under FRAP 4(a)(6) the time may be extended if the district court finds upon motion that a party has not received notice of entry of the judgment or order and that no party would be prejudiced by extension.
FRAP 4( c): “If an inmate confined in an institution files a notice of appeal in either a civil case or a criminal case, the notice of appeal is timely if it is deposited in the institution’s internal mail system on or before the last day for filing. Timely filing may be shown by a notarized statement or by a declaration (in compliance with 28 U.S.C. §1746) setting forth the date of deposit and stating that first-class postage has been prepaid.”
3. Format of Notice of Appeal: Form 1, FRAP Appendix of Forms, is a suitable format. See also FRAP 3( c). A single notice of appeal may be filed from a (single) judgment or order by two or more persons whose “interests are such as to make joinder practicable....” [FRAP 3(b)].
4. Effect of Notice of Appeal: A district court loses jurisdiction (authority) to act after the filing of a timely notice of appeal, except for actions in aid of appellate jurisdiction (see Fed.R.Civ.P. 60) or to rule on a timely motion of the type specified in FRAP 4(a)(4).
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Case 2:03-cv-00526U-JnESit-eDdNFStaDtoecsumCenotu22r8t ofFAilepd p11e/a28ls/2005
Eleventh Circuit
56 Forsyth Street, N.W. Atlanta, Georgia 30303

Page 3 of 3

Thomas K. Kahn Clerk

In Replying Give Number Of Case And Names of Parties

NOTICE TO PRISONERS CONCERNING CIVIL APPEALS

The Prison Litigation Reform Act of 1995 (effective April 26, 1996) now REQUIRES that all prisoners pay the Court's $250 docket fee plus $5 filing fee (for a total of $255) when appealing any civil judgment.
If you wish to appeal in a civil case that Act now requires that upon filing a notice of appeal you either:
(1) pay the total $255 fee to the clerk of the district court from which this case arose; or
(2) arrange to have a prison official certify to the district court from which the appeal arose the average monthly deposits and balances in your prison account for each of the six months preceding the filing of a notice of appeal.
If you proceed with option (2) above, the Act requires that the district court order you to pay an initial partial fee of at least 20% of the greater of either the average monthly deposits or of the average monthly balances shown in your prison account. The remainder of the total $255 fee will thereafter be deducted from your prison account each month that your account balance exceeds $10. Each such monthly deduction shall equal 20% of all deposits to your prison account during the previous month, until the total $255 fee is paid. (If your prison account statement shows that you cannot pay even the required initial partial fee, your appeal may nevertheless proceed, but the total $255 fee will be assessed against and will be deducted from future deposits to your prison account.)
Fees are not refundable, regardless of outcome, and deductions from your prison account will continue until the total $255 fee is collected, even if an appeal is unsuccessful.
THOMAS K. KAHN Clerk
PLRA Notice Rev.: 6/96

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 </s> Electronic Case Filing | U.S. District Court - Middle District of Florida -... https://ecf.flmd.uscourts.gov/cgi-bin/DktRpt.pl?104115881889144-L_3...
CLOSED, DNF
U.S. District Court Middle District of Florida (Ft. Myers) CIVIL DOCKET FOR CASE #: 2:03-cv-00526-JES-DNF

Brown, et al v. Secretary, DOC, et al Assigned to: Judge John E. Steele Referred to: Magistrate Judge Douglas N. Frazier Demand: $0 Cause: 42:1983 Prisoner Civil Rights

Date Filed: 09/12/2003 Date Terminated: 11/28/2005 Jury Demand: None Nature of Suit: 555 Prisoner Civil Rights (Prison Condition) Jurisdiction: Federal Question

Plaintiff
Danny E. Brown individually, and on behalf of a Class of all persons similarly situated

represented by Christopher Michael Jones Florida Institutional Legal Services, Inc. 1010-B NW 8th Ave. Gainesville, FL 32601-4969 352/375-2494 Fax: 352/271-4366 Email: cjones@filsinc.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Cullin Avram O'Brien Florida Justice Institute, Inc. 100 S.E. Second St. 4320 Bank of America Tower Miami, FL 33131-2309 786 525 3532 Email: cullinobrien@hotmail.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lisa White Shirley Baron & Budd, P.C. 3102 Oak Lawn Ave., Suite 1100 Dallas, TX 75219 214/523-6279 Email: lshirley@baronbudd.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Peter Michael Siegel Florida Justice Institute, Inc. 4320 Bank of America Tower 100 SE 2nd St Miami, FL 33131-2309 305/358-2081

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6/19/2007 10:21 AM

Electronic Case Filing | U.S. District Court - Middle District of Florida -... https://ecf.flmd.uscourts.gov/cgi-bin/DktRpt.pl?104115881889144-L_3...

Plaintiff
Sylvester Butler individually, and on behalf of a Class of all persons similarly situated

Fax: 305-358-0910 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Randall Challen Berg, Jr. Florida Justice Institute, Inc. 4320 Bank of America Tower 100 SE 2nd St Miami, FL 33131-2309 305/358-2081 Fax: 305/358-0910 Email: rcberg@bellsouth.net LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rhonda Brownstein Southern Poverty Law Center 400 Washington Ave. PO Box 2087 Montgomery, AL 36102-0287 334/956-8200 Email: rbrownstein@splcenter.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Cassandra Capobianco Florida Institutional Legal Services, Inc. 1010-B NW 8th Ave. Gainesville, FL 32601-4969 352/375-2494 Fax: 352-271-4366 Email: ccapobianco@filsinc.org ATTORNEY TO BE NOTICED
Kristen Cooley Lentz Florida Institutional Legal Services, Inc. 1010-B NW 8th Ave. Gainesville, FL 32601 352/375-2494 Fax: 352/271-4366 Email: klentz@filsinc.org ATTORNEY TO BE NOTICED
represented by Christopher Michael Jones (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Cullin Avram O'Brien

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Plaintiff
Kenneth Caudill individually, and on behalf of a Class of all persons similarly situated

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lisa White Shirley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Peter Michael Siegel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Randall Challen Berg, Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rhonda Brownstein (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Cassandra Capobianco (See above for address) ATTORNEY TO BE NOTICED
Kristen Cooley Lentz (See above for address) ATTORNEY TO BE NOTICED
represented by Christopher Michael Jones (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Cullin Avram O'Brien (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lisa White Shirley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Peter Michael Siegel (See above for address)

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Plaintiff
Sammy J. Douse individually, and on behalf of a Class of all persons similarly situated

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Randall Challen Berg, Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rhonda Brownstein (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Cassandra Capobianco (See above for address) ATTORNEY TO BE NOTICED
Kristen Cooley Lentz (See above for address) ATTORNEY TO BE NOTICED
represented by Christopher Michael Jones (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Cullin Avram O'Brien (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lisa White Shirley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Peter Michael Siegel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Randall Challen Berg, Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rhonda Brownstein (See above for address) LEAD ATTORNEY

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Plaintiff Willie English individually, and on behalf of a Class of all persons similarly situated
Plaintiff

ATTORNEY TO BE NOTICED
Cassandra Capobianco (See above for address) ATTORNEY TO BE NOTICED
Kristen Cooley Lentz (See above for address) ATTORNEY TO BE NOTICED
represented by Christopher Michael Jones (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Cullin Avram O'Brien (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lisa White Shirley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Peter Michael Siegel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Randall Challen Berg, Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rhonda Brownstein (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Cassandra Capobianco (See above for address) ATTORNEY TO BE NOTICED
Kristen Cooley Lentz (See above for address) ATTORNEY TO BE NOTICED

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Sidney Everett individually, and on behalf of a Class of all persons similarly situated
Plaintiff Kelvin Frazier individually, and on behalf of a Class of all persons similarly situated

represented by Christopher Michael Jones (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Cullin Avram O'Brien (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lisa White Shirley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Peter Michael Siegel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Randall Challen Berg, Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rhonda Brownstein (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Cassandra Capobianco (See above for address) ATTORNEY TO BE NOTICED
Kristen Cooley Lentz (See above for address) ATTORNEY TO BE NOTICED
represented by Christopher Michael Jones (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Cullin Avram O'Brien (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lisa White Shirley

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Plaintiff
Morris J. Gilbert individually, and on behalf of a Class of all persons similarly situated

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Peter Michael Siegel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Randall Challen Berg, Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rhonda Brownstein (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Cassandra Capobianco (See above for address) ATTORNEY TO BE NOTICED
Kristen Cooley Lentz (See above for address) ATTORNEY TO BE NOTICED
represented by Christopher Michael Jones (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Cullin Avram O'Brien (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lisa White Shirley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Peter Michael Siegel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Randall Challen Berg, Jr. (See above for address)

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Plaintiff
Jijuan T. Hagans individually, and on behalf of a Class of all persons similarly situated

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rhonda Brownstein (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Cassandra Capobianco (See above for address) ATTORNEY TO BE NOTICED
Kristen Cooley Lentz (See above for address) ATTORNEY TO BE NOTICED
represented by Christopher Michael Jones (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Cullin Avram O'Brien (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lisa White Shirley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Peter Michael Siegel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Randall Challen Berg, Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rhonda Brownstein (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Cassandra Capobianco (See above for address) ATTORNEY TO BE NOTICED

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Plaintiff Troy D. Hall individually, and on behalf of a Class of all persons similarly situated TERMINATED: 06/13/2005
Plaintiff Benjamin Laflower individually, and on behalf of a Class of all persons similarly situated

Kristen Cooley Lentz (See above for address) ATTORNEY TO BE NOTICED
represented by Christopher Michael Jones (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Cullin Avram O'Brien (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lisa White Shirley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Peter Michael Siegel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Randall Challen Berg, Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rhonda Brownstein (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Cassandra Capobianco (See above for address) ATTORNEY TO BE NOTICED
Kristen Cooley Lentz (See above for address) ATTORNEY TO BE NOTICED
represented by Christopher Michael Jones (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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Plaintiff
Curt Massie individually, and on behalf of a Class of all persons similarly situated

Cullin Avram O'Brien (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lisa White Shirley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Peter Michael Siegel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Randall Challen Berg, Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rhonda Brownstein (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Cassandra Capobianco (See above for address) ATTORNEY TO BE NOTICED
Kristen Cooley Lentz (See above for address) ATTORNEY TO BE NOTICED
represented by Christopher Michael Jones (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Cullin Avram O'Brien (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lisa White Shirley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Peter Michael Siegel

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Plaintiff
Antonio J. McCloud individually, and on behalf of a Class of all persons similarly situated

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Randall Challen Berg, Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rhonda Brownstein (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Cassandra Capobianco (See above for address) ATTORNEY TO BE NOTICED
Kristen Cooley Lentz (See above for address) ATTORNEY TO BE NOTICED
represented by Christopher Michael Jones (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Cullin Avram O'Brien (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lisa White Shirley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Peter Michael Siegel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Randall Challen Berg, Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rhonda Brownstein (See above for address)

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Plaintiff
Lamar A. Miffin individually, and on behalf of a Class of all persons similarly situated

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Cassandra Capobianco (See above for address) ATTORNEY TO BE NOTICED
Kristen Cooley Lentz (See above for address) ATTORNEY TO BE NOTICED
represented by Christopher Michael Jones (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Cullin Avram O'Brien (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lisa White Shirley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Peter Michael Siegel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Randall Challen Berg, Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rhonda Brownstein (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Cassandra Capobianco (See above for address) ATTORNEY TO BE NOTICED
Kristen Cooley Lentz (See above for address) ATTORNEY TO BE NOTICED

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Plaintiff Michael L. Montgomery individually, and on behalf of a Class of all persons similarly situated TERMINATED: 06/13/2005
Plaintiff Kunta Porter individually, and on behalf of a Class of all persons similarly situated

represented by Christopher Michael Jones (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Cullin Avram O'Brien (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lisa White Shirley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Peter Michael Siegel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Randall Challen Berg, Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rhonda Brownstein (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Cassandra Capobianco (See above for address) ATTORNEY TO BE NOTICED
Kristen Cooley Lentz (See above for address) ATTORNEY TO BE NOTICED
represented by Christopher Michael Jones (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Cullin Avram O'Brien (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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Plaintiff
Issac Sharpe individually, and on behalf of a Class of all persons similarly situated

Lisa White Shirley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Peter Michael Siegel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Randall Challen Berg, Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rhonda Brownstein (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Cassandra Capobianco (See above for address) ATTORNEY TO BE NOTICED
Kristen Cooley Lentz (See above for address) ATTORNEY TO BE NOTICED
represented by Christopher Michael Jones (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Cullin Avram O'Brien (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lisa White Shirley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Peter Michael Siegel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Randall Challen Berg, Jr.

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Plaintiff
Samuel Strother individually, and on behalf of a Class of all persons similarly situated

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rhonda Brownstein (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Cassandra Capobianco (See above for address) ATTORNEY TO BE NOTICED
Kristen Cooley Lentz (See above for address) ATTORNEY TO BE NOTICED
represented by Christopher Michael Jones (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Cullin Avram O'Brien (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lisa White Shirley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Peter Michael Siegel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Randall Challen Berg, Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rhonda Brownstein (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Cassandra Capobianco (See above for address)

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Plaintiff Jeremiah Thomas individually, and on behalf of a Class of all persons similarly situated
Plaintiff Eugene E. Ulrath individually, and on behalf of a Class of all persons similarly situated

ATTORNEY TO BE NOTICED
Kristen Cooley Lentz (See above for address) ATTORNEY TO BE NOTICED
represented by Christopher Michael Jones (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Cullin Avram O'Brien (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lisa White Shirley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Peter Michael Siegel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Randall Challen Berg, Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rhonda Brownstein (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Cassandra Capobianco (See above for address) ATTORNEY TO BE NOTICED
Kristen Cooley Lentz (See above for address) ATTORNEY TO BE NOTICED
represented by Christopher Michael Jones (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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Plaintiff
Glenn Wheeler individually, and on behalf of a Class of all persons similarly situated TERMINATED: 06/13/2005

Cullin Avram O'Brien (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lisa White Shirley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Peter Michael Siegel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Randall Challen Berg, Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rhonda Brownstein (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Cassandra Capobianco (See above for address) ATTORNEY TO BE NOTICED
Kristen Cooley Lentz (See above for address) ATTORNEY TO BE NOTICED
represented by Christopher Michael Jones (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Cullin Avram O'Brien (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lisa White Shirley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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Plaintiff
Reginald Williams individually, and on behalf of a Class of all persons similarly situated

Peter Michael Siegel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Randall Challen Berg, Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rhonda Brownstein (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Cassandra Capobianco (See above for address) ATTORNEY TO BE NOTICED
Kristen Cooley Lentz (See above for address) ATTORNEY TO BE NOTICED
represented by Christopher Michael Jones (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Cullin Avram O'Brien (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lisa White Shirley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Peter Michael Siegel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Randall Challen Berg, Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rhonda Brownstein

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V. Defendant Secretary, Department of Corrections

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Cassandra Capobianco (See above for address) ATTORNEY TO BE NOTICED
Kristen Cooley Lentz (See above for address) ATTORNEY TO BE NOTICED
represented by Caryl Kilinski Attorney General's Office The Capitol, PL-01 Tallahassee, FL 32399-1050 850/414-3300 ext: 3632 Fax: 850/488-4872 Email: Caryl_Kilinski@oag.state.fl.us TERMINATED: 03/04/2004 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Denis Allen Dean Attorney General's Office The Capitol, PL-01 Tallahassee, FL 32399-1050 850/414-3300 ext: 3816 Fax: 850/488-4872 Email: denis_dean@oag.state.fl.us LEAD ATTORNEY ATTORNEY TO BE NOTICED
Donna M. La Plante Agency for Health Care Administration 2727 Mahan Dr Building 3 Tallahassee, FL 32308-5407 850/922-5873 Email: tesseraktz98@aol.com TERMINATED: 03/04/2004 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kathleen M. Savor Kathleen M. Savor, P.A. 2514 Hollywood Blvd., Suite 306 Hollywood, FL 33020

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Defendant Gerald H. Abdul-Wasi in his official capacity as Inspector General, Florida Department of Corrections
Defendant Joseph Thompson in his official capacity as Warden, Florida State Prison
Defendant Chester Lambdin in his official capacity as Warden, Charlotte Correctional Institution

954/926-5770 Fax: 954 926-5771 Email: ksavorlaw@bellsouth.net LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Caryl Kilinski (See above for address) TERMINATED: 03/04/2004 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Denis Allen Dean (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Donna M. La Plante (See above for address) TERMINATED: 03/04/2004 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Caryl Kilinski (See above for address) TERMINATED: 03/04/2004 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Denis Allen Dean (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Donna M. La Plante (See above for address) TERMINATED: 03/04/2004 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Caryl Kilinski (See above for address) TERMINATED: 03/04/2004 LEAD ATTORNEY ATTORNEY TO BE NOTICED

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Defendant Joseph Petrovsky in his official capacity as Warden, Santa Rosa Correctional Institution
Defendant Wendell Whitehurst in his official capacity as Warden, Washington Correctional Institution
Movant

Denis Allen Dean (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Donna M. La Plante (See above for address) TERMINATED: 03/04/2004 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Caryl Kilinski (See above for address) TERMINATED: 03/04/2004 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Denis Allen Dean (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Donna M. La Plante (See above for address) TERMINATED: 03/04/2004 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Caryl Kilinski (See above for address) TERMINATED: 03/04/2004 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Denis Allen Dean (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Donna M. La Plante (See above for address) TERMINATED: 03/04/2004 LEAD ATTORNEY ATTORNEY TO BE NOTICED

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Michael Scott Warren TERMINATED: 07/29/2004
Movant Richard Scott Doss TERMINATED: 07/29/2004
Movant Tareyan Cooks TERMINATED: 12/22/2004

represented by Michael Scott Warren #079886 Apalachee Correctional Institution East 35 Apalachee Dr. Sneads, FL 34260-4166 PRO SE
represented by Richard Scott Doss #921633C2105L Santa Rosa Correctional Institution 5850 E. Milton Rd. Milton, FL 32583 PRO SE
represented by Tareyan Cooks #388887 Santa Rosa Correctional Institution 5850 E. Milton Rd. Milton, FL 32583 PRO SE

Date Filed 09/12/2003 09/12/2003 09/12/2003 09/15/2003 09/18/2003
09/18/2003

#

Docket Text

1 CLASS ACTION COMPLAINT filed. Filing fee $150.00 Receipt #F004306. (drn) (Entered: 09/12/2003)
MAGISTRATE JUDGE CASE ASSIGNMENT Magistrate assigned: Douglas N. Frazier (drn) (Entered: 09/12/2003)
SUMMONS(ES) issued for Secretary, DOC, Gerald H. Abdul-Wasi, Joseph Thompson, Chester Lambdin, Joseph Petrovsky and Wendell Whitehurst. (drn) (Entered: 09/12/2003)
2 NOTICE of designation under Local Rule 3.05 - TRACK 1. (ctc) (sll) (Entered: 09/15/2003)
3 EMERGENCY MOTION by Danny E. Brown, Sylvester Butler, Kenneth Caudill, Sammy J. Douse, Willie English, Sidney Everett, Kelvin Frazier, Morris J. Gilbert, Jijuan T. Hagans, Troy D. Hall, Benjamin Laflower, Curt Massie, Antonio J. McCloud, Lamar A. Miffin, Michael L. Montgomery, Kunta Porter, Issac Sharpe, Samuel Strother, Jeremiah Thomas, Eugene E. Ulrath, Glenn Wheeler, Reginald Williams with memorandum in support for an order to preserve video records referred to Magistrate Judge Douglas N. Frazier (sll) (Entered: 09/18/2003)
4 ORDER granting [3-1] motion for an order to preserve video records ( Signed by Magistrate Judge Douglas N. Frazier ) ctc (sll) (Entered: 09/18/2003)

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09/22/2003
09/30/2003
10/03/2003
10/03/2003 10/03/2003 10/03/2003 10/03/2003 10/06/2003
10/06/2003 10/14/2003 10/16/2003 10/20/2003

5 RESPONSE by Secretary, DOC, Gerald H. Abdul-Wasi, Joseph Thompson, Chester Lambdin, Joseph Petrovsky, Wendell Whitehurst to [3-1] motion for an order to preserve video records and MOTION to strike [3-1] motion for an order to preserve video records referred to Magistrate Judge Douglas N. Frazier (sll) (Entered: 09/22/2003)
6 RESPONSE by Danny E. Brown, Sylvester Butler, Kenneth Caudill, Sammy J. Douse, Willie English, Sidney Everett, Kelvin Frazier, Morris J. Gilbert, Jijuan T. Hagans, Troy D. Hall, Benjamin Laflower, Curt Massie, Antonio J. McCloud, Lamar A. Miffin, Michael L. Montgomery, Kunta Porter, Issac Sharpe, Samuel Strother, Jeremiah Thomas, Eugene E. Ulrath, Glenn Wheeler, Reginald Williams in opposition to [5-1] motion to strike [3-1] motion for an order to preserve video records (sll) (Entered: 09/30/2003)
7 NOTICE of filing by Danny E. Brown, Sylvester Butler, Kenneth Caudill, Sammy J. Douse, Willie English, Sidney Everett, Kelvin Frazier, Morris J. Gilbert, Jijuan T. Hagans, Troy D. Hall, Benjamin Laflower, Curt Massie, Antonio J. McCloud, Lamar A. Miffin, Michael L. Montgomery, Kunta Porter, Issac Sharpe, Samuel Strother, Jeremiah Thomas, Eugene E. Ulrath, Glenn Wheeler, Reginald Williams (sll) (Entered: 10/03/2003)
8 RETURN of service executed as to Secretary, DOC on 9/24/03 Answer due on 10/14/03 for Secretary, DOC (sll) (Entered: 10/03/2003)
9 RETURN of service executed as to Gerald H. Abdul-Wasi on 9/24/03 Answer due on 10/14/03 for Gerald H. Abdul-Wasi (sll) (Entered: 10/03/2003)
10 RETURN of service executed as to Wendell Whitehurst on 9/24/03 Answer due on 10/14/03 for Wendell Whitehurst (sll) (Entered: 10/03/2003)
11 RETURN of service executed as to Joseph Petrovsky on 9/23/03 Answer due on 10/14/03 for Joseph Petrovsky (sll) (Entered: 10/03/2003)
12 NOTICE of filing by Danny E. Brown, Sylvester Butler, Kenneth Caudill, Sammy J. Douse, Willie English, Sidney Everett, Kelvin Frazier, Morris J. Gilbert, Jijuan T. Hagans, Troy D. Hall, Benjamin Laflower, Curt Massie, Antonio J. McCloud, Lamar A. Miffin, Michael L. Montgomery, Kunta Porter, Issac Sharpe, Samuel Strother, Jeremiah Thomas, Eugene E. Ulrath, Glenn Wheeler, Reginald Williams (sll) (Entered: 10/07/2003)
13 RETURN of service executed as to Chester Lambdin on 9/25/03 Answer due on 10/15/03 for Chester Lambdin (sll) (Entered: 10/07/2003)
14 ORDER denying [5-1] motion to strike [3-1] motion for an order to preserve video records ( Signed by Magistrate Judge Douglas N. Frazier ) ctc (sll) (Entered: 10/14/2003)
15 MOTION by Secretary, DOC, Gerald H. Abdul-Wasi, Joseph Thompson, Chester Lambdin, Joseph Petrovsky, and Wendell Whitehurst with memorandum in support to dismiss complaint (kma) (Entered: 10/17/2003)
16 NOTICE of filing return of service by Danny E. Brown, Sylvester Butler, Kenneth Caudill, Sammy J. Douse, Willie English, Sidney Everett, Kelvin Frazier, Morris J. Gilbert, Jijuan T. Hagans, Troy D. Hall, Benjamin Laflower, Curt Massie, Antonio J. McCloud, Lamar A. Miffin, Michael L. Montgomery,

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10/20/2003 10/27/2003
10/27/2003
10/27/2003
10/27/2003
10/30/2003 10/31/2003 10/31/2003

Kunta Porter, Issac Sharpe, Samuel Strother, Jeremiah Thomas, Eugene E. Ulrath, Glenn Wheeler, Reginald Williams (lap) (Entered: 10/20/2003)
17 RETURN of service executed as to Joseph Thompson on 10/6/03 Answer due on 10/27/03 for Joseph Thompson (lap) (Entered: 10/20/2003)
18 MOTION with Rule 3.01(g) certification by Danny E. Brown, Sylvester Butler, Kenneth Caudill, Sammy J. Douse, Willie English, Sidney Everett, Kelvin Frazier, Morris J. Gilbert, Jijuan T. Hagans, Troy D. Hall, Benjamin Laflower, Curt Massie, Antonio J. McCloud, Lamar A. Miffin, Michael L. Montgomery, Kunta Porter, Issac Sharpe, Samuel Strother, Jeremiah Thomas, Eugene E. Ulrath, Glenn Wheeler, Reginald Williams with memorandum in support to extend time for filing motion for class certification referred to Magistrate Judge Douglas N. Frazier (proposed order attached) (sll) (Entered: 10/28/2003)
19 UNOPPOSED MOTION by Danny E. Brown, Sylvester Butler, Kenneth Caudill, Sammy J. Douse, Willie English, Sidney Everett, Kelvin Frazier, Morris J. Gilbert, Jijuan T. Hagans, Troy D. Hall, Benjamin Laflower, Curt Massie, Antonio J. McCloud, Lamar A. Miffin, Michael L. Montgomery, Kunta Porter, Issac Sharpe, Samuel Strother, Jeremiah Thomas, Eugene E. Ulrath, Glenn Wheeler, Reginald Williams (unopposed) to designate case as a track 3 case referred to Magistrate Judge Douglas N. Frazier (proposed order attached) (sll) (Entered: 10/28/2003)
20 UNOPPOSED MOTION by Danny E. Brown, Sylvester Butler, Kenneth Caudill, Sammy J. Douse, Willie English, Sidney Everett, Kelvin Frazier, Morris J. Gilbert, Jijuan T. Hagans, Troy D. Hall, Benjamin Laflower, Curt Massie, Antonio J. McCloud, Lamar A. Miffin, Michael L. Montgomery, Kunta Porter, Issac Sharpe, Samuel Strother, Jeremiah Thomas, Eugene E. Ulrath, Glenn Wheeler, Reginald Williams (unopposed) for telephonic case management conference referred to Magistrate Judge Douglas N. Frazier (proposed order attached) (sll) (Entered: 10/28/2003)
21 NOTICE by Danny E. Brown, Sylvester Butler, Kenneth Caudill, Sammy J. Douse, Willie English, Sidney Everett, Kelvin Frazier, Morris J. Gilbert, Jijuan T. Hagans, Troy D. Hall, Benjamin Laflower, Curt Massie, Antonio J. McCloud, Lamar A. Miffin, Michael L. Montgomery, Kunta Porter, Issac Sharpe, Samuel Strother, Jeremiah Thomas, Eugene E. Ulrath, Glenn Wheeler, Reginald Williams of pendency of other actions re: order of compliance to local rule (sll) (Entered: 10/28/2003)
22 AMENDED NOTICE of designation under Local Rule 3.05 - TRACK 2. (ctc) (sll) (Entered: 10/31/2003)
23 ORDER granting [20-1] consent motion (unopposed) for telephonic case management conference ( Signed by Magistrate Judge Douglas N. Frazier ) ctc (sll) (Entered: 10/31/2003)
24 ORDER granting [18-1] motion to extend time for filing motion for class certification response to motion set to 11/24/03 for [15-1] motion to dismiss complaint ( Signed by Magistrate Judge Douglas N. Frazier ) ctc (sll) (Entered: 10/31/2003)

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10/31/2003 10/31/2003
11/03/2003 11/07/2003
11/07/2003
11/10/2003 11/10/2003 11/12/2003 11/13/2003 11/21/2003

25 ORDER granting [19-1] consent motion (unopposed) to designate case as a track 3 case to the extent that the Court will change the designation to a Track 2 case consistent with Rule 3.05(b)(2) ( Signed by Magistrate Judge Douglas N. Frazier ) ctc (sll) (Entered: 10/31/2003)
26 MEMORANDUM by Danny E. Brown, Sylvester Butler, Kenneth Caudill, Sammy J. Douse, Willie English, Sidney Everett, Kelvin Frazier, Morris J. Gilbert, Jijuan T. Hagans, Troy D. Hall, Benjamin Laflower, Curt Massie, Antonio J. McCloud, Lamar A. Miffin, Michael L. Montgomery, Kunta Porter, Issac Sharpe, Samuel Strother, Jeremiah Thomas, Eugene E. Ulrath, Glenn Wheeler, Reginald Williams in opposition to [15-1] motion to dismiss complaint (sll) (Entered: 11/03/2003)
27 NOTICE OF HEARING: setting case management telephone conference for 10:00 11/17/03 scheduled for Magistrate Judge Douglas N. Frazier ( Signed by Deputy Clerk ) ctc (sll) (Entered: 11/03/2003)
28 CERTIFICATE OF COMPLIANCE by Danny E. Brown, Sylvester Butler, Kenneth Caudill, Sammy J. Douse, Willie English, Sidney Everett, Kelvin Frazier, Morris J. Gilbert, Jijuan T. Hagans, Troy D. Hall, Benjamin Laflower, Curt Massie, Antonio J. McCloud, Lamar A. Miffin, Michael L. Montgomery, Kunta Porter, Issac Sharpe, Samuel Strother, Jeremiah Thomas, Eugene E. Ulrath, Glenn Wheeler, Reginald Williams Re: order (sll) (Entered: 11/07/2003)
29 UNOPPOSED MOTION by Danny E. Brown, Sylvester Butler, Kenneth Caudill, Sammy J. Douse, Willie English, Sidney Everett, Kelvin Frazier, Morris J. Gilbert, Jijuan T. Hagans, Troy D. Hall, Benjamin Laflower, Curt Massie, Antonio J. McCloud, Lamar A. Miffin, Michael L. Montgomery, Kunta Porter, Issac Sharpe, Samuel Strother, Jeremiah Thomas, Eugene E. Ulrath, Glenn Wheeler, Reginald Williams (unopposed) to continue telephonic case management conference referred to Magistrate Judge Douglas N. Frazier (sll) (Entered: 11/07/2003)
30 NOTICE of witness tampering by Michael Scott Warren STRICKEN AND RETURNED PURSUANT TO DOCUMENT 36 (sll) Modified on 11/25/2003 (Entered: 11/12/2003)
31 MOTION by Secretary, DOC, Gerald H. Abdul-Wasi, Joseph Thompson, Chester Lambdin, Joseph Petrovsky, Wendell Whitehurst with memorandum in support for leave to file amended motion to dismiss referred to Magistrate Judge Douglas N. Frazier (sll) (Entered: 11/12/2003)
32 CERTIFICATE OF COMPLIANCE by Secretary, DOC, Gerald H. Abdul-Wasi, Joseph Thompson, Chester Lambdin, Joseph Petrovsky, Wendell Whitehurst Re: order (sll) (Entered: 11/12/2003)
33 ORDER granting [29-1] consent motion (unopposed) to continue telephonic case management conference resetting telephone conference for 10:00 12/17/03 scheduled for Magistrate Judge Douglas N. Frazier ( Signed by Magistrate Judge Douglas N. Frazier ) ctc (sll) (Entered: 11/13/2003)
34 MOTION by Secretary, DOC, Gerald H. Abdul-Wasi, Joseph Thompson, Chester Lambdin, Joseph Petrovsky, Wendell Whitehurst for reconsideration of [4-1] order , and for protective order to preserve video recordings referred to

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11/21/2003
11/25/2003 11/25/2003 12/02/2003 12/02/2003 12/04/2003
12/05/2003 12/05/2003 12/08/2003

Magistrate Judge Douglas N. Frazier (lap) (Entered: 11/21/2003)
35 MEMORANDUM by Danny E. Brown, Sylvester Butler, Kenneth Caudill, Sammy J. Douse, Willie English, Sidney Everett, Kelvin Frazier, Morris J. Gilbert, Jijuan T. Hagans, Troy D. Hall, Benjamin Laflower, Curt Massie, Antonio J. McCloud, Lamar A. Miffin, Michael L. Montgomery, Kunta Porter, Issac Sharpe, Samuel Strother, Jeremiah Thomas, Eugene E. Ulrath, Glenn Wheeler, Reginald Williams in opposition to [31-1] motion for leave to file amended motion to dismiss (sll) (Entered: 11/24/2003)
36 ORDER striking and returning [30-1] notice ( Signed by Magistrate Judge Douglas N. Frazier ) ctc (sll) (Entered: 11/25/2003)
37 NOTICE OF HEARING: Motion hearing set for 10:30 12/5/03 for [34-1] motion for reconsideration of [4-1] order, set for 10:30 12/5/03 for [34-2] motion for protective order to preserve video recordings Scheduled for Magistrate Judge Douglas N. Frazier ( Signed by Deputy Clerk ) ctc (sll) (Entered: 11/25/2003)
38 ORDER granting [31-1] motion for leave to file amended motion to dismiss, denying [15-1] motion to dismiss complaint ( Signed by Magistrate Judge Douglas N. Frazier ) ctc (sll) (Entered: 12/03/2003)
39 AMENDED MOTION amending motion (amended) to dismiss complaint by Secretary, DOC, Gerald H. Abdul-Wasi, Joseph Thompson, Chester Lambdin, Joseph Petrovsky, Wendell Whitehurst (sll) (Entered: 12/04/2003)
40 MEMORANDUM by Danny E. Brown, Sylvester Butler, Kenneth Caudill, Sammy J. Douse, Willie English, Sidney Everett, Kelvin Frazier, Morris J. Gilbert, Jijuan T. Hagans, Troy D. Hall, Benjamin Laflower, Curt Massie, Antonio J. McCloud, Lamar A. Miffin, Michael L. Montgomery, Kunta Porter, Issac Sharpe, Samuel Strother, Jeremiah Thomas, Eugene E. Ulrath, Glenn Wheeler, Reginald Williams in opposition to [34-1] motion for reconsideration of [4-1] order, [34-2] motion for protective order to preserve video recordings (sll) (Entered: 12/04/2003)
41 ORDER granting in part, denying in part [34-1] motion for reconsideration of [4-1] order, granting in part, denying in part [34-2] motion for protective order to preserve video recordings ( Signed by Magistrate Judge Douglas N. Frazier ) ctc (lap) (Entered: 12/05/2003)
42 MOTION HEARING held on 12/5/03 re: [34-1] motion for reconsideration of [4-1] order, [34-2] motion for protective order to preserve video recordings before Magistrate Judge Douglas N. Frazier Court Reporter: Brenda Alexander (sll) (Entered: 12/08/2003)
43 MEMORANDUM by Danny E. Brown, Sylvester Butler, Kenneth Caudill, Sammy J. Douse, Willie English, Sidney Everett, Kelvin Frazier, Morris J. Gilbert, Jijuan T. Hagans, Troy D. Hall, Benjamin Laflower, Curt Massie, Antonio J. McCloud, Lamar A. Miffin, Michael L. Montgomery, Kunta Porter, Issac Sharpe, Samuel Strother, Jeremiah Thomas, Eugene E. Ulrath, Glenn Wheeler, Reginald Williams in opposition to [39-1] amended motion (amended) to dismiss complaint (sll) (Entered: 12/09/2003)

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12/11/2003 12/11/2003 12/15/2003 12/16/2003
12/16/2003 12/17/2003 12/17/2003 12/17/2003 12/18/2003
12/19/2003 12/19/2003 12/22/2003 12/24/2003
12/29/2003 12/30/2003

44 NOTICE of federal protection by Michael Scott Warren (sll) (Entered: 12/11/2003)
44 RESPONSE by Michael Scott Warren to [36-1] order (sll) (Entered: 12/11/2003)
45 MOTION by Michael Scott Warren for leave to amend [1-1] complaint to add as a plaintiff referred to Magistrate Judge Douglas N. Frazier (sll) (Entered: 12/15/2003)
46 NOTICE of filing case management report by Danny E. Brown, Sylvester Butler, Kenneth Caudill, Sammy J. Douse, Willie English, Sidney Everett, Kelvin Frazier, Morris J. Gilbert, Jijuan T. Hagans, Troy D. Hall, Benjamin Laflower, Curt Massie, Antonio J. McCloud, Lamar A. Miffin, Michael L. Montgomery, Kunta Porter, Issac Sharpe, Samuel Strother, Jeremiah Thomas, Eugene E. Ulrath, Glenn Wheeler, Reginald Williams (sll) (Entered: 12/16/2003)
47 CASE MANAGEMENT REPORT (sll) (Entered: 12/16/2003)
48 NOTICE of filing case management report by Secretary, DOC, Gerald H. Abdul-Wasi, Joseph Thompson, Chester Lambdin, Joseph Petrovsky, Wendell Whitehurst (sll) (Entered: 12/17/2003)
49 CASE MANAGEMENT REPORT (sll) (Entered: 12/17/2003)
50 TELEPHONE CONFERENCE held on 12/17/03 before Magistrate Judge Douglas N. Frazier Court Reporter: NMRS-Patsy Coleman (sll) (Entered: 12/18/2003)
51 CASE MANAGEMENT AND SCHEDULING ORDER setting Joining of parties,amending of pleadings on 1/9/04 ; Discovery cutoff 4/9/04 ; dispositive motion filing deadline for 5/7/04 Pretrial statement due on or before 7/6/04 ; Pretrial conference for 10:30 8/9/04 ; Bench trial set for 9/7/04 ; Scheduled for Judge John E. Steele ( signed by Magistrate Judge Douglas N. Frazier ) ctc (sll) (Entered: 12/18/2003)
52 ORDER that the parties are permitted to take 20 depositions in this matter. ( Signed by Magistrate Judge Douglas N. Frazier ) ctc (sll) (Entered: 12/19/2003)
53 ORDER denying [45-1] motion for leave to amend [1-1] complaint to add as a plaintiff ( Signed by Magistrate Judge Douglas N. Frazier ) ctc (sll) (Entered: 12/19/2003)
54 NOTICE of attorney appearance for Secretary, DOC, Gerald H. Abdul-Wasi, Joseph Thompson, Chester Lambdin, Joseph Petrovsky, Wendell Whitehurst by Denis Allen Dean (sll) (Entered: 12/22/2003)
55 MOTION by Secretary, DOC, Gerald H. Abdul-Wasi, Joseph Thompson, Chester Lambdin, Joseph Petrovsky, Wendell Whitehurst with memorandum in support to extend time to respond to class action interrogatories to James V. Crosby referred to Magistrate Judge Douglas N. Frazier (sll) (Entered: 12/24/2003)
56 MOTION by Michael Scott Warren to grant this issue (kma) (Entered: 12/30/2003)
57 RESPONSE by Danny E. Brown, Sylvester Butler, Kenneth Caudill, Sammy J. Douse, Willie English, Sidney Everett, Kelvin Frazier, Morris J. Gilbert, Jijuan

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12/30/2003
12/30/2003 01/02/2004 01/05/2004 01/05/2004 01/08/2004 01/12/2004
01/14/2004
01/15/2004

T. Hagans, Troy D. Hall, Benjamin Laflower, Curt Massie, Antonio J. McCloud, Lamar A. Miffin, Michael L. Montgomery, Kunta Porter, Issac Sharpe, Samuel Strother, Jeremiah Thomas, Eugene E. Ulrath, Glenn Wheeler, and Reginald Williams to [55-1] motion to extend time to respond to class action interrogatories (kma) (Entered: 12/30/2003)
58 OBJECTION by Danny E. Brown, Sylvester Butler, Kenneth Caudill, Sammy J. Douse, Willie English, Sidney Everett, Kelvin Frazier, Morris J. Gilbert, Jijuan T. Hagans, Troy D. Hall, Benjamin Laflower, Curt Massie, Antonio J. McCloud, Lamar A. Miffin, Michael L. Montgomery, Kunta Porter, Issac Sharpe, Samuel Strother, Jeremiah Thomas, Eugene E. Ulrath, Glenn Wheeler, and Reginald Williams to [51-1] Scheduling order (kma) (Entered: 12/30/2003)
59 ORDER granting [55-1] motion to extend time to respond to class action interrogatories. The defendant James Crosby shall have until 01/13/04 in which to respond to the plaintiff's class action interrogatories. ( Signed by Magistrate Judge Douglas N. Frazier ) ctc (kma) (Entered: 12/31/2003)
60 MOTION by Michael Scott Warren for proper time frame to discuss issues in good faith referred to Magistrate Judge Douglas N. Frazier (lap) (Entered: 01/02/2004)
61 ORDER denying [60-1] motion for proper time frame to discuss issues in good faith ( Signed by Magistrate Judge Douglas N. Frazier ) ctc (sll) (Entered: 01/05/2004)
62 ORDER denying [56-1] motion to grant this issue ( Signed by Magistrate Judge Douglas N. Frazier ) ctc (sll) (Entered: 01/05/2004)
63 ORDER directing the Clerk to return the letter received 1/5/04, to Mr. Warren. ( Signed by Magistrate Judge Douglas N. Frazier ) ctc (sll) (Entered: 01/09/2004)
64 MOTION by Danny E. Brown, Sylvester Butler, Kenneth Caudill, Sammy J. Douse, Willie English, Sidney Everett, Kelvin Frazier, Morris J. Gilbert, Jijuan T. Hagans, Troy D. Hall, Benjamin Laflower, Curt Massie, Antonio J. McCloud, Lamar A. Miffin, Michael L. Montgomery, Kunta Porter, Issac Sharpe, Samuel Strother, Jeremiah Thomas, Eugene E. Ulrath, Glenn Wheeler and Reginald Williams to extend time for filing Motion To Amend Complaint or Add Parties referred to Magistrate Judge Douglas N. Frazier. (drn) (Entered: 01/13/2004)
65 RESPONSE by Danny E. Brown, Sylvester Butler, Kenneth Caudill, Sammy J. Douse, Willie English, Sidney Everett, Kelvin Frazier, Morris J. Gilbert, Jijuan T. Hagans, Troy D. Hall, Benjamin Laflower, Curt Massie, Antonio J. McCloud, Lamar A. Miffin, Michael L. Montgomery, Kunta Porter, Issac Sharpe, Samuel Strother, Jeremiah Thomas, Eugene E. Ulrath, Glenn Wheeler, Reginald Williams in opposition to second motion for enlargement of time to respond to plaintiffs' class action interrogatories to defendant James Crosby (sll) (Entered: 01/15/2004)
66 SECOND MOTION by Secretary, DOC, Gerald H. Abdul-Wasi, Joseph Thompson, Chester Lambdin, Joseph Petrovsky, Wendell Whitehurst with memorandum in support to extend time to respond to class action interrogatories to defendant James V. Crosby referred to Magistrate Judge Douglas N. Frazier (sll) (Entered: 01/15/2004)

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01/15/2004 01/21/2004
01/23/2004 01/23/2004 01/29/2004
02/02/2004 02/02/2004 02/04/2004
02/09/2004 02/09/2004

67 EMERGENCY witness facts by Michael Scott Warren STRICKEN AND RETURNED PURSUANT TO TO DOCUMENT 70 (sll) Modified on 01/26/2004 (Entered: 01/15/2004)
68 ORDER overruling [58-1] objection, granting [64-1] motion to extend time for filing Motion To Amend Complaint or Add Parties resetting amended complaint deadline at 2/20/04 for Reginald Williams, for Glenn Wheeler, for Eugene E. Ulrath, for Jeremiah Thomas, for Samuel Strother, for Issac Sharpe, for Kunta Porter, for Michael L. Montgomery, for Lamar A. Miffin, for Antonio J. McCloud, for Curt Massie, for Benjamin Laflower, for Troy D. Hall, for Jijuan T. Hagans, for Morris J. Gilbert, for Kelvin Frazier, for Sidney Everett, for Willie English, for Sammy J. Douse, for Kenneth Caudill, for Sylvester Butler, for Danny E. Brown ( Signed by Judge John E. Steele ) ctc (sll) (Entered: 01/21/2004)
69 ORDER granting [66-1] motion to extend time to respond to class action interrogatories ( Signed by Magistrate Judge Douglas N. Frazier ) ctc (sll) (Entered: 01/23/2004)
70 ORDER striking and returning [67-1] Michael Warren's Emergency Witness Facts ( Signed by Magistrate Judge Douglas N. Frazier ) ctc (sll) (Entered: 01/26/2004)
71 MOTION and certificate of counsel by Danny E. Brown, Sylvester Butler, Kenneth Caudill, Sammy J. Douse, Willie English, Sidney Everett, Kelvin Frazier, Morris J. Gilbert, Jijuan T. Hagans, Troy D. Hall, Benjamin Laflower, Curt Massie, Antonio J. McCloud, Lamar A. Miffin, Michael L. Montgomery, Kunta Porter, Issac Sharpe, Samuel Strother, Jeremiah Thomas, Eugene E. Ulrath, Glenn Wheeler, Reginald Williams with memorandum in support to compel production of documents and things from defendants referred to Magistrate Judge Douglas N. Frazier (sll) (Entered: 01/30/2004)
72 NOTICE of docket Miami [Osterback] by Michael Scott Warren (sll) (Entered: 02/02/2004)
73 NOTICE of attorney appearance for Secretary, DOC, et al by Kathleen M. Savor (sll) (Entered: 02/02/2004)
74 MOTION by Danny E. Brown, Sylvester Butler, Kenneth Caudill, Sammy J. Douse, Willie English, Sidney Everett, Kelvin Frazier, Morris J. Gilbert, Jijuan T. Hagans, Troy D. Hall, Benjamin Laflower, Curt Massie, Antonio J. McCloud, Lamar A. Miffin, Michael L. Montgomery, Kunta Porter, Issac Sharpe, Samuel Strother, Jeremiah Thomas, Eugene E. Ulrath, Glenn Wheeler, Reginald Williams with memorandum in support and certificate of counsel to compel answers to plaintiffs' class action interrogatories referred to Magistrate Judge Douglas N. Frazier (sll) (Entered: 02/04/2004)
75 RESPONSE by Secretary, DOC, Gerald H. Abdul-Wasi, Joseph Thompson, Chester Lambdin, Joseph Petrovsky, Wendell Whitehurst in opposition to [71-1] motion to compel production of documents and things (sll) (Entered: 02/10/2004)
76 MOTION by Secretary, DOC, Gerald H. Abdul-Wasi, Joseph Thompson, Chester Lambdin, Joseph Petrovsky, Wendell Whitehurst for Caryl Kilinski & Donna LaPlante to withdraw as attorney , to substitute attorney referred to Magistrate

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02/11/2004 02/25/2004 03/01/2004 03/02/2004
03/03/2004
03/04/2004
03/05/2004 03/08/2004 03/08/2004

Judge Douglas N. Frazier (sll) (Entered: 02/10/2004)
77 NOTICE of attorney appearance for Secretary, DOC, et al., by Denis Dean (sll) (Entered: 02/11/2004)
78 RESPONSE by Secretary, DOC, Gerald H. Abdul-Wasi, Joseph Thompson, Chester Lambdin, Joseph Petrovsky, Wendell Whitehurst in opposition to [74-1] motion to compel answers to plaintiffs' class action interrogatories (sll) Modified on 8/11/2004 (slu, ). (Entered: 02/25/2004)
79 ORDER striking and returning Michael Scott Warren's notice to the Court received on 2/17/04 ( Signed by Magistrate Judge Douglas N. Frazier ) ctc (sll) (Entered: 03/02/2004)
80 SECOND MOTION by Danny E. Brown, Sylvester Butler, Kenneth Caudill, Sammy J. Douse, Willie English, Sidney Everett, Kelvin Frazier, Morris J. Gilbert, Jijuan T. Hagans, Troy D. Hall, Benjamin Laflower, Curt Massie, Antonio J. McCloud, Lamar A. Miffin, Michael L. Montgomery, Kunta Porter, Issac Sharpe, Samuel Strother, Jeremiah Thomas, Eugene E. Ulrath, Glenn Wheeler, Reginald Williams with memorandum and certificate of counsel in support to compel production of documents and things from defendants referred to Magistrate Judge Douglas N. Frazier (sll) (Entered: 03/03/2004)
81 MOTION with Rule 3.01(g) certification by Danny E. Brown, Sylvester Butler, Kenneth Caudill, Sammy J. Douse, Willie English, Sidney Everett, Kelvin Frazier, Morris J. Gilbert, Jijuan T. Hagans, Troy D. Hall, Benjamin Laflower, Curt Massie, Antonio J. McCloud, Lamar A. Miffin, Michael L. Montgomery, Kunta Porter, Issac Sharpe, Samuel Strother, Jeremiah Thomas, Eugene E. Ulrath, Glenn Wheeler, Reginald Williams to extend time to disclose expert witness reports referred to Magistrate Judge Douglas N. Frazier (sll) (Entered: 03/03/2004)
82 ORDER granting [76-1] motion for Caryl Kilinski & Donna LaPlante to withdraw as attorney (Terminated attorney Caryl Kilinski for Wendell Whitehurst, attorney Donna M. La Plante for Wendell Whitehurst, attorney Donna M. La Plante for Joseph Petrovsky, attorney Caryl Kilinski for Joseph Petrovsky, attorney Donna M. La Plante for Chester Lambdin, attorney Caryl Kilinski for Chester Lambdin, attorney Donna M. La Plante for Joseph Thompson, attorney Caryl Kilinski for Joseph Thompson, attorney Donna M. La Plante for Gerald H. Abdul-Wasi, attorney Caryl Kilinski for Gerald H. Abdul-Wasi, attorney Donna M. La Plante for Secretary, DOC, attorney Caryl Kilinski for Secretary, DOC, granting [76-2] motion to substitute attorney terminated Added . ( Signed by Magistrate Judge Douglas N. Frazier ) ctc (sll) (Entered: 03/04/2004)
83 ORDER of procedure ( Signed by Magistrate Judge Douglas N. Frazier ) ctc MFR Number (lap) (Entered: 03/05/2004)
84 NOTICE of filing supplemental exhibits by Richard Scott Doss (sll) (Entered: 03/08/2004)
85 RESPONSE by Secretary, DOC, Gerald H. Abdul-Wasi, Joseph Thompson, Chester Lambdin, Joseph Petrovsky, Wendell Whitehurst in opposition to [80-1] motion to compel production of documents and things (sll) (Entered: 03/08/2004)

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03/08/2004 03/09/2004 03/12/2004 03/16/2004 03/16/2004 03/18/2004 03/19/2004
03/19/2004
03/22/2004 03/25/2004
03/31/2004

86 NOTICE by Secretary, DOC, Gerald H. Abdul-Wasi, Joseph Thompson, Chester Lambdin, Joseph Petrovsky, Wendell Whitehurst of unavailability of counsel from 4/28/04 to 5/11/04 (sll) (Entered: 03/08/2004)
87 NOTICE of potential scheduling conflict by Secretary, DOC, Gerald H. Abdul-Wasi, Joseph Thompson, Chester Lambdin, Joseph Petrovsky, Wendell Whitehurst (sll) (Entered: 03/09/2004)
89 LAST NOTICE by Michael Scott Warren STRICKEN AND RETURNED PURSUANT TO DOCUMENT 90 (sll) Modified on 03/17/2004 (Entered: 03/17/2004)
88 MOTION by Secretary, DOC, Gerald H. Abdul-Wasi, Joseph Thompson, Chester Lambdin, Joseph Petrovsky, Wendell Whitehurst with memorandum in support to preclude plaintiffs' expert testimony referred to Magistrate Judge Douglas N. Frazier (sll) (Entered: 03/16/2004)
90 ORDER striking and returning [89-1] notice ( Signed by Magistrate Judge Douglas N. Frazier ) ctc (sll) (Entered: 03/17/2004)
91 ORDER directing the clerk to receive stamp and return to sender the letter from Michael Scott Warren. ( Signed by Magistrate Judge Douglas N. Frazier ) ctc (sll) (Entered: 03/19/2004)
92 RESPONSE by Danny E. Brown, Sylvester Butler, Kenneth Caudill, Sammy J. Douse, Willie English, Sidney Everett, Kelvin Frazier, Morris J. Gilbert, Jijuan T. Hagans, Troy D. Hall, Benjamin Laflower, Curt Massie, Antonio J. McCloud, Lamar A. Miffin, Michael L. Montgomery, Kunta Porter, Issac Sharpe, Samuel Strother, Jeremiah Thomas, Eugene E. Ulrath, Glenn Wheeler, Reginald Williams to [83-1] order. (drn) (Entered: 03/22/2004)
93 NOTICE of Filing Discovery Requests and Responses Pursuant to the Court Order of March 5, 2004 by Danny E. Brown, Sylvester Butler, Kenneth Caudill, Sammy J. Douse, Willie English, Sidney Everett, Kelvin Frazier, Morris J. Gilbert, Jijuan T. Hagans, Troy D. Hall, Benjamin Laflower, Curt Massie, Antonio J. McCloud, Lamar A. Miffin, Michael L. Montgomery, Kunta Porter, Issac Sharpe, Samuel Strother, Jeremiah Thomas, Eugene E. Ulrath, Glenn Wheeler, Reginald Williams. (drn) (Entered: 03/22/2004)
94 NOTICE of filing pursuant to the Court's Order of 03/05/04 by Secretary, DOC, Gerald H. Abdul-Wasi, Joseph Thompson, Chester Lambdin, Joseph Petrovsky, Wendell Whitehurst and Richard Scott Doss (kma) Modified on 8/11/2004 (slu, ). (Entered: 03/22/2004)
95 RESPONSE by Danny E. Brown, Sylvester Butler, Kenneth Caudill, Sammy J. Douse, Willie English, Sidney Everett, Kelvin Frazier, Morris J. Gilbert, Jijuan T. Hagans, Troy D. Hall, Benjamin Laflower, Curt Massie, Antonio J. McCloud, Lamar A. Miffin, Michael L. Montgomery, Kunta Porter, Issac Sharpe, Samuel Strother, Jeremiah Thomas, Eugene E. Ulrath, Glenn Wheeler, Reginald Williams in opposition to [88-1] motion to preclude plaintiffs' expert testimony (sll) (Entered: 03/26/2004)
96 RESPONSE by Secretary, DOC, Gerald H. Abdul-Wasi, Joseph Thompson, Chester Lambdin, Joseph Petrovsky, Wendell Whitehurst to [81-1] motion to

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04/01/2004 04/06/2004
04/06/2004
04/07/2004 04/16/2004 04/21/2004 04/23/2004 04/23/2004 04/26/2004 05/06/2004

extend time to disclose expert witness reports (lap) (Entered: 04/01/2004)
97 CONSPIRACY Notice of Federal Correction filed by Michael Warren STRICKEN AND RETURNED PURSUANT TO DOCUMENT 100 (lap) Modified on 04/12/2004 (Entered: 04/02/2004)
98 MOTION with Rule 3.01(g) certification by Danny E. Brown, Sylvester Butler, Kenneth Caudill, Sammy J. Douse, Willie English, Sidney Everett, Kelvin Frazier, Morris J. Gilbert, Jijuan T. Hagans, Troy D. Hall, Benjamin Laflower, Curt Massie, Antonio J. McCloud, Lamar A. Miffin, Michael L. Montgomery, Kunta Porter, Issac Sharpe, Samuel Strother, Jeremiah Thomas, Eugene E. Ulrath, Glenn Wheeler, Reginald Williams with memorandum in support to extend time pre-trial deadlines , and to continue trial date referred to Magistrate Judge Douglas N. Frazier (sll) (Entered: 04/06/2004)
99 REQUEST for oral argument by Danny E. Brown, Sylvester Butler, Kenneth Caudill, Sammy J. Douse, Willie English, Sidney Everett, Kelvin Frazier, Morris J. Gilbert, Jijuan T. Hagans, Troy D. Hall, Benjamin Laflower, Curt Massie, Antonio J. McCloud, Lamar A. Miffin, Michael L. Montgomery, Kunta Porter, Issac Sharpe, Samuel Strother, Jeremiah Thomas, Eugene E. Ulrath, Glenn Wheeler, Reginald Williams re: [98-1] motion to extend time pre-trial deadlines, [98-2] motion to continue trial date, [71-1] motion to compel production of documents and things, [74-1] motion to compel answers to plaintiffs' class action interrogatories, [80-1] motion to compel production of documents and things (sll) (Entered: 04/06/2004)
100 ORDER striking and returning [97-1] conspiracy notice, Federal correction, Federal question ( Signed by Magistrate Judge Douglas N. Frazier ) ctc (sll) (Entered: 04/08/2004)
101 RESPONSE OBJECTION by Secretary, DOC, Gerald H. Abdul-Wasi, Joseph Thompson, Chester Lambdin, Joseph Petrovsky, Wendell Whitehurst to [98-1] motion to extend time pre-trial deadlines, [98-2] motion to continue trial date (sll) (Entered: 04/19/2004)
102 ORDER granting [80-1] motion to compel production of documents and things ( Signed by Magistrate Judge Douglas N. Frazier ) ctc (sll) (Entered: 04/21/2004)
103 ORDER granting [74-1] motion to compel answers to plaintiffs' class action interrogatories ( Signed by Magistrate Judge Douglas N. Frazier ) ctc (lap) (Entered: 04/23/2004)
104 ORDER granting in part, denying in part [71-1] motion to compel production of documents and things ( Signed by Magistrate Judge Douglas N. Frazier ) ctc (lap) (Entered: 04/23/2004)
105 ORDER denying [88-1] motion to preclude plaintiffs' expert testimony ( Signed by Magistrate Judge Douglas N. Frazier ) ctc (sll) (Entered: 04/26/2004)
106 UNOPPOSED MOTION by Secretary, DOC (unopposed) to extend time to comply with order on confidentiality agreement referred to Magistrate Judge Douglas N. Frazier (proposed order attached) (sll) (Entered: 05/07/2004)

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05/10/2004 05/17/2004
05/18/2004 06/10/2004 06/14/2004
06/14/2004
06/23/2004
07/02/2004 07/02/2004

107 ORDER granting [106-1] consent motion (unopposed) to extend time to comply with order on confidentiality agreement ( Signed by Magistrate Judge Sheri P. Chappell ) ctc (lap) (Entered: 05/10/2004)
108 NOTICE of filing proposed confidentiality agreement by Danny E. Brown, Sylvester Butler, Kenneth Caudill, Sammy J. Douse, Willie English, Sidney Everett, Kelvin Frazier, Morris J. Gilbert, Jijuan T. Hagans, Troy D. Hall, Benjamin Laflower, Curt Massie, Antonio J. McCloud, Lamar A. Miffin, Michael L. Montgomery, Kunta Porter, Issac Sharpe, Samuel Strother, Jeremiah Thomas, Eugene E. Ulrath, Glenn Wheeler, Reginald Williams (sll) (Entered: 05/17/2004)
109 NOTICE of filing attached defendant's proposed confidentiality agreement by Secretary, DOC, et al., (sll) (Entered: 05/18/2004)
110 AMENDED RESPONSE and agreement by Secretary, DOC, Gerald H. Abdul-Wasi, Joseph Thompson, Chester Lambdin, Joseph Petrovsky, Wendell Whitehurst to [98-1] motion to extend time pre-trial deadlines, [98-2] motion to continue trial date (sll) (Entered: 06/10/2004)
111 MOTION by Danny E. Brown, Sylvester Butler, Kenneth Caudill, Sammy J. Douse, Willie English, Sidney Everett, Kelvin Frazier, Morris J. Gilbert, Jijuan T. Hagans, Troy D. Hall, Benjamin Laflower, Curt Massie, Antonio J. McCloud, Lamar A. Miffin, Michael L. Montgomery, Kunta Porter, Issac Sharpe, Samuel Strother, Jeremiah Thomas, Eugene E. Ulrath, Glenn Wheeler, Reginald Williams for status conference hearing on discovery and pretrial calendar referred to Magistrate Judge Douglas N. Frazier (sll) (Entered: 06/16/2004)
111 RENEWED REQUEST for oral argument by Danny E. Brown, Sylvester Butler, Kenneth Caudill, Sammy J. Douse, Willie English, Sidney Everett, Kelvin Frazier, Morris J. Gilbert, Jijuan T. Hagans, Troy D. Hall, Benjamin Laflower, Curt Massie, Antonio J. McCloud, Lamar A. Miffin, Michael L. Montgomery, Kunta Porter, Issac Sharpe, Samuel Strother, Jeremiah Thomas, Eugene E. Ulrath, Glenn Wheeler, Reginald Williams re: [98-1] motion to extend time pre-trial deadlines, [98-2] motion to continue trial date (sll) (Entered: 06/16/2004)
112 MOTION by Danny E. Brown, Sylvester Butler, Kenneth Caudill, Sammy J. Douse, Willie English, Sidney Everett, Kelvin Frazier, Morris J. Gilbert, Jijuan T. Hagans, Troy D. Hall, Benjamin Laflower, Curt Massie, Antonio J. McCloud, Lamar A. Miffin, Michael L. Montgomery, Kunta Porter, Issac Sharpe, Samuel Strother, Jeremiah Thomas, Eugene E. Ulrath, Glenn Wheeler, Reginald Williams with memorandum in support for Rule 37 sanctions , and (second motion) to compel answers to class action interrogatories with certification of counsel referred to Magistrate Judge Douglas N. Frazier (sll) (Entered: 06/23/2004)
113 RESPONSE by Secretary, DOC, et al., in opposition to [112-1] motion for Rule 37 sanctions, [112-2] motion (second motion) to compel answers to class action interrogatories (sll) (Entered: 07/02/2004)
114 MOTION by Secretary, DOC for expedited hearing referred to Magistrate Judge Douglas N. Frazier (sll) (Entered: 07/02/2004)

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115 ORDER denying Defendants' Amended Motion To Dismiss 39. Defendants shall file their answer to the Complaint 1 within TWENTY (20) DAYS of this Order.Signed by Judge John E. Steele on 7/14/2004.(DCP) (Entered: 07/14/2004)
116 ORDER granting 81 Motion for Enlargement of Time to Disclose Expert Witness Reports; granting 98 Motion for Enlargement of Pretrial Deadlines; granting 98 Motion for Continuance of Trial Date; granting 111 Request for a Status Conference. A separate scheduling order will be entered, and a status conference will be scheduled by separate notice. Signed by Judge Douglas N. Frazier on 7/16/2004. (brh) (Entered: 07/16/2004)
117 NOTICE of caveat by Michael Scott Warren (slu, ) Modified on 7/22/2004 (slu, ). DOCUMENT STRICKEN AND RETURNED TO MICHAEL SCOTT WARREN PURSUANT TO DOCUMENT 119. (Entered: 07/19/2004)
118 NOTICE of witness report by Michael Scott Warren (slu, ) Modified on 7/22/2004 (slu, ). DOCUMENT STRICKEN AND RETURNED TO MICHAEL SCOTT WARREN PURSUANT TO DOCUMENT 119. (Entered: 07/19/2004)
119 ORDER directing the Clerk to strike and return the [Caveat] 117 filed by Michael Scott Warren, and the Witness Report for Plaintiff (sic) Attorneys 118 filed by Michael Scott Warren. The Clerk is directed to send a copy of the docket sheet showing the addresses of Plaintiffs' counsel and Defendants' counsel to Michael Scott Warren. Signed by Judge Douglas N. Frazier on 7/21/2004. (brh) (Entered: 07/21/2004)
120 NOTICE of Hearing: Status Conference set for 7/26/2004 10:30 AM on all discovery issues and issues regarding a confidentiality agreement in Courtroom C before Magistrate Judge Douglas N. Frazier. Parties attending must appear in person.(BJH ) (Entered: 07/21/2004)
121 AMENDED CASE MANAGEMENT AND SCHEDULING ORDER: Amended Pleadings due by 1/10/2005. Discovery due by 4/8/2005. Conduct mediation hearing by 7/8/2005. Lead counsel to coordinate dates. Motions due by 5/9/2005. Pretrial statement due by 7/5/2005. Pretrial Conference set for 8/15/2005 11:00 AM in Courtroom A before Judge John E. Steele. Jury Trial set for trial term 9/6/2005 before Judge John E. Steele. (See attached Order for further deadlines) Signed by Judge Douglas N. Frazier on 7/21/2004. (BJH ) Modified on 7/22/2004 (BJH, ). (Entered: 07/21/2004)
122 Minute Entry for proceedings held before Judge Douglas N. Frazier : Status Conference/Evidentiary hearing held on 7/26/2004. (Court Reporter NMRS-Anne Marie Robinson.) (BJH ) (Entered: 07/27/2004)
123 EXHIBIT LIST for status/evidentiary hearing by Danny E. Brown, et al (BJH ) (Entered: 07/27/2004)
124 AMENDED EXHIBIT LIST for status/evidentiary hearing by Danny E. Brown (BJH ) (Entered: 07/27/2004)
125 AMENDED NOTICE of Hearing: Bench Trial set for trial term 9/6/2005 in Courtroom A before Judge John E. Steele. (Note: Scheduling order previously issued reflected this case to be a jury trial, case is non-jury trial)(BJH ) (Entered: 07/28/2004)

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08/09/2004 08/09/2004 08/10/2004 08/10/2004 08/10/2004 08/16/2004 08/18/2004 08/25/2004 08/26/2004 08/26/2004

126 ORDER denying 112 Motion for Rule 37 Sanctions, granting in part 112 Motion to Compel Answers to Class Action Interrogatories, and denying as moot 114 Motion for Expedited Hearing. See Order for further details. Signed by Judge Douglas N. Frazier on 7/28/2004. (brh) (Entered: 07/28/2004)
127 ANSWER to complaint by Secretary, Department of Corrections.(Savor, Kathleen) (Entered: 08/02/2004)
128 APPEAL of Magistrate Judge ruling to District Court by Danny E. Brown, Sylvester Butler, Kenneth Caudill, Sammy J. Douse, Willie English, Sidney Everett, Kelvin Frazier, Morris J. Gilbert, Jijuan T. Hagans, Troy D. Hall, Benjamin Laflower, Curt Massie, Antonio J. McCloud, Lamar A. Miffin, Michael L. Montgomery, Kunta Porter, Issac Sharpe, Samuel Strother, Jeremiah Thomas, Eugene E. Ulrath, Glenn Wheeler, Reginald Williams re 126 Order on motion for sanctions, Order on motion to compel, Order on Motion for Hearing,,, (Shirley, Lisa) (Entered: 08/05/2004)
129 NOTICE by Secretary, Department of Corrections (Attachments: # 1 Confidentiality Agreement)(Dean, Denis) Modified on 8/10/2004 (slu, ). ERROR ON DOCUMENT; NOTICE DOES NOT CONTAIN SIGNATURE; COUNSEL NOTIFIED (Entered: 08/09/2004)
130 NOTICE of error by ? by Michael Scott Warren (slu, ) (Entered: 08/09/2004)
131 ORDER granting 130 Notice (Other) filed by Michael Scott Warren as to the error in the docket sheet and is otherwise denied. The Clerk shall adjust the docket entries to remove Michael Scott Warren as a party-defendant. Signed by Judge John E. Steele on 8/10/2004. (RKM) (Entered: 08/10/2004)
132 NOTICE by Secretary, Department of Corrections (Attachments: # 1 Confidentiality Agreement)(Dean, Denis) (Entered: 08/10/2004)
133 Third MOTION to compel Motion to Compel and for Sanctions by Danny E. Brown. (Siegel, Peter) (Entered: 08/10/2004)
134 MEMORANDUM in opposition re 128 Appeal of magistrate judge ruling to district court,, filed by Secretary, Department of Corrections. (Attachments: # 1 IG Use of Force Form# 2 Medical Release Forms)(Dean, Denis) (Entered: 08/16/2004)
135 RESPONSE in opposition re 133 Third MOTION to compel Motion to Compel and for Sanctions filed by Secretary, Department of Corrections. (Savor, Kathleen) (Entered: 08/18/2004)
136 ORDER granting the Confidentiality Agreement Governing Documents That Are Confidential (Doc. 129) filed August 9, 2004, and adopting it as an Order of the Court. Signed by Judge Douglas N. Frazier on 8/25/2004. (brh) (Entered: 08/25/2004)
137 NOTICE by Secretary, Department of Corrections of Filing Attachments (Attachments: # 1 Exhibit Release Forms# 2 Exhibit I.G. Logs)(Savor, Kathleen) (Entered: 08/26/2004)
138 ORDER requiring the Defendants to pay for the cost of production of the I.G. Logs, and requiring the Defendants to file the three I.G. Logs that were not

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08/26/2004
08/26/2004 08/26/2004 08/27/2004 08/30/2004 08/30/2004

attached to their Response no later then August 31, 2004. See Order for further details. Signed by Judge Douglas N. Frazier on 8/26/2004. (brh) (Entered: 08/26/2004)
139 MOTION for preliminary injunction by Danny E. Brown, Sylvester Butler, Kenneth Caudill, Sammy J. Douse, Willie English, Sidney Everett, Kelvin Frazier, Morris J. Gilbert, Jijuan T. Hagans, Troy D. Hall, Benjamin Laflower, Curt Massie, Antonio J. McCloud, Lamar A. Miffin, Michael L. Montgomery, Kunta Porter, Issac Sharpe, Samuel Strother, Jeremiah Thomas, Eugene E. Ulrath, Glenn Wheeler, Reginald Williams. (Attachments: # 1 Exhibit Exhibits in Support of Motion for Preliminary Injunction# 2 Exhibit Exhibit 2# 3 Exhibit Exhibit 3# 4 Exhibit Exhibit 4# 5 Exhibit Exhibit 5# 6 Exhibit Exhibit 6# 7 Exhibit Exhibit 7# 8 Exhibit Exhibit 8# 9 Exhibit Exhibit 9# 10 Exhibit Exhibit 10# 11 Exhibit Exhibit 11# 12 Exhibit exhibit 12# 13 Exhibit Exhibit 13# 14 Exhibit Exhibit 14# 15 Exhibit Exhibit 15# 16 Exhibit Exhibit 16# 17 Exhibit Exhibit 17# 18 Exhibit Exhibit 18# 19 Exhibit Exhibit 19# 20 Exhibit Exhibit 20# 21 Exhibit Attachment A to Exhibit 20# 22 Exhibit Attachment B to Exhibit 20# 23 Exhibit Attachment C to Exhibit 20)(Siegel, Peter) (Entered: 08/26/2004)
140 MEMORANDUM in support of Motion for Preliminary Injunction filed by Danny E. Brown, Sylvester Butler, Kenneth Caudill, Sammy J. Douse, Willie English, Sidney Everett, Kelvin Frazier, Morris J. Gilbert, Jijuan T. Hagans, Troy D. Hall, Benjamin Laflower, Curt Massie, Antonio J. McCloud, Lamar A. Miffin, Michael L. Montgomery, Kunta Porter, Issac Sharpe, Samuel Strother, Jeremiah Thomas, Eugene E. Ulrath, Glenn Wheeler, Reginald Williams. (Siegel, Peter) (Entered: 08/26/2004)
141 MOTION for Hearing on Motion for Preliminary Injunction by Danny E. Brown, Sylvester Butler, Kenneth Caudill, Sammy J. Douse, Willie English, Sidney Everett, Kelvin Frazier, Morris J. Gilbert, Jijuan T. Hagans, Troy D. Hall, Benjamin Laflower, Curt Massie, Antonio J. McCloud, Lamar A. Miffin, Michael L. Montgomery, Kunta Porter, Issac Sharpe, Samuel Strother, Jeremiah Thomas, Eugene E. Ulrath, Glenn Wheeler, Reginald Williams. (Siegel, Peter) (Entered: 08/26/2004)
142 ORDER overruling Plaintiffs' Objections to the Order Denying Plaintiffs' Motion For Rule 37 Sanctions and Partially Denying Plaintiffs' Second Motion To Compel Answers to Class Action Interrogatories 128. Signed by Judge John E. Steele on 8/27/2004. (dcp) (Entered: 08/27/2004)
143 NOTICE of filing by Danny E. Brown, Sylvester Butler, Kenneth Caudill, Sammy J. Douse, Willie English, Sidney Everett, Kelvin Frazier, Morris J. Gilbert, Jijuan T. Hagans, Troy D. Hall, Benjamin Laflower, Curt Massie, Antonio J. McCloud, Lamar A. Miffin, Michael L. Montgomery, Kunta Porter, Issac Sharpe, Samuel Strother, Jeremiah Thomas, Eugene E. Ulrath, Glenn Wheeler, Reginald Williams re 139 MOTION for preliminary injunction (slu, ) (Entered: 08/30/2004)
144 DECLARATION of Joseph Berry re 139 MOTION for preliminary injunction by Danny E. Brown, Sylvester Butler, Kenneth Caudill, Sammy J. Douse, Willie English, Sidney Everett, Kelvin Frazier, Morris J. Gilbert, Jijuan T. Hagans, Troy D. Hall, Benjamin Laflower, Curt Massie, Antonio J. McCloud, Lamar A. Miffin, Michael L. Montgomery, Kunta Porter, Issac Sharpe, Samuel Strother, Jeremiah

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08/30/2004
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09/07/2004 09/14/2004 09/20/2004 10/04/2004 10/11/2004
10/12/2004 10/12/2004

Thomas, Eugene E. Ulrath, Glenn Wheeler, Reginald Williams. (slu, ) (Entered: 08/30/2004)
145 DECLARATION of Paul G. Echols re 139 MOTION for preliminary injunction by Danny E. Brown, Sylvester Butler, Kenneth Caudill, Sammy J. Douse, Willie English, Sidney Everett, Kelvin Frazier, Morris J. Gilbert, Jijuan T. Hagans, Troy D. Hall, Benjamin Laflower, Curt Massie, Antonio J. McCloud, Lamar A. Miffin, Michael L. Montgomery, Kunta Porter, Issac Sharpe, Samuel Strother, Jeremiah Thomas, Eugene E. Ulrath, Glenn Wheeler, Reginald Williams. (slu, ) (Entered: 08/30/2004)
146 DECLARATION of Eddie Grice re 139 MOTION for preliminary injunction by Danny E. Brown, Sylvester Butler, Kenneth Caudill, Sammy J. Douse, Willie English, Sidney Everett, Kelvin Frazier, Morris J. Gilbert, Jijuan T. Hagans, Troy D. Hall, Benjamin Laflower, Curt Massie, Antonio J. McCloud, Lamar A. Miffin, Michael L. Montgomery, Kunta Porter, Issac Sharpe, Samuel Strother, Jeremiah Thomas, Eugene E. Ulrath, Glenn Wheeler, Reginald Williams. (slu, ) (Entered: 08/30/2004)
147 RESPONSE in opposition re 139 MOTION for preliminary injunction filed by Secretary, Department of Corrections. (Dean, Denis) (Entered: 09/07/2004)
148 ORDER requiring within eleven (11) days that the Defendants file ex parte, in camera the same three I.G. Logs that were attached to the Notice of Filing (Doc. 137) in a non-redacted form. See Order for details. Signed by Judge Douglas N. Frazier on 9/14/2004. (brh) (Entered: 09/14/2004)
149 ORDER denying 139 Plaintiffs' Motion For Preliminary Injunction, denying 141 Plaintiffs' Request For Oral Argument. Signed by Judge John E. Steele on 9/20/2004. (dcp) (Entered: 09/20/2004)
151 ORDER requiring the defendants to file a Notice with the Court within 11 days from the date of the Order setting forth which "Class Codes" are used in non-spontaneous use of force cases, and whether "Class Codes" can be used to separate spontaneous from non-spontaneous use of force. See Order for details. Signed by Judge Douglas N. Frazier on 10/4/2004. (brh) (Entered: 10/04/2004)
152 MOTION for Extension of Time to File Motion for Class Certification by Danny E. Brown, Sylvester Butler, Kenneth Caudill, Sammy J. Douse, Willie English, Sidney Everett, Kelvin Frazier, Morris J. Gilbert, Jijuan T. Hagans, Troy D. Hall, Benjamin Laflower, Curt Massie, Antonio J. McCloud, Lamar A. Miffin, Michael L. Montgomery, Kunta Porter, Issac Sharpe, Samuel Strother, Jeremiah Thomas, Eugene E. Ulrath, Glenn Wheeler, Reginald Williams. (Shirley, Lisa) (Entered: 10/11/2004)
153 NOTICE by Secretary, Department of Corrections re 151 Order, (Attachments: # 1)(Dean, Denis) (Entered: 10/12/2004)
154 EMERGENCY MOTION for temporary restraining order by Michael Scott Warren. (Attachments: # (1) Exhibit Order and Notice of Electronic Filing for case 3:04-cv-751-J-99MMH)(slu, ) Modified on 10/20/2004 (slu, ). STRICKEN AND RETURNED PURSUANT TO COURT ORDER DOCUMENT 156 (Entered: 10/12/2004)

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01/05/2005 01/20/2005

155 ORDER granting 152 Unopposed Motion for Enlargement of Time to File Motion for Class Certification. The Plaintiffs shall have an additional 90 days in which to file their Motion for Class Certification. Signed by Judge Douglas N. Frazier on 10/12/2004. (brh) (Entered: 10/12/2004)
156 ORDER striking [154] Emergency Motion For Temporary Restraining Order filed by Michael Scott Warren. The Clerk is directed to terminate this motion as a pending motion and to return the motion to Mr. Warren, along with a copy of this Order. Signed by Judge John E. Steele on 10/13/2004. (dcp) (Entered: 10/13/2004)
157 NOTICE of change of address by Lisa White Shirley (Shirley, Lisa) (Entered: 10/27/2004)
158 ORDER granting 133 Motion to Compel, and denying 133 Motion for Rule 37(b) Sanctions. See Order for details. Signed by Judge Douglas N. Frazier on 12/17/2004. (brh) (Entered: 12/17/2004)
159 MOTION to opt out of class action suit by Tareyan Cooks. (slu, ) (Entered: 12/20/2004)
160 ORDER denying 159 Motion to opt out of class action suit as premature. Signed by Judge John E. Steele on 12/22/2004. (RKM) (Entered: 12/22/2004)
161 APPEAL of Magistrate Judge ruling to District Court by Troy D. Hall, Benjamin Laflower, Curt Massie, Antonio J. McCloud, Lamar A. Miffin, Michael L. Montgomery, Kunta Porter, Issac Sharpe, Samuel Strother, Jeremiah Thomas, Danny E. Brown, Eugene E. Ulrath, Glenn Wheeler, Reginald Williams, Sylvester Butler, Kenneth Caudill, Sammy J. Douse, Kelvin Frazier, Morris J. Gilbert, Jijuan T. Hagans re 158 Order on motion to compel (Siegel, Peter) (Entered: 12/23/2004)
162 APPEAL of Magistrate Judge ruling to District Court by Secretary, Department of Corrections (Dean, Denis) (Entered: 12/28/2004)
163 ORDER OVERRULING as moot 161 Plaintiffs' Objections to the Order of the Magistrate Judge on Plaintiffs' Motion To Compel and For Rule 37(b) Sanctions. Signed by Judge John E. Steele on 12/28/2004. (dcp) (Entered: 12/28/2004)
164 MOTION to extend time to File Motion for Class Certification by Troy D. Hall, Benjamin Laflower, Curt Massie, Antonio J. McCloud, Lamar A. Miffin, Michael L. Montgomery, Kunta Porter, Issac Sharpe, Samuel Strother, Jeremiah Thomas, Danny E. Brown, Eugene E. Ulrath, Glenn Wheeler, Reginald Williams, Sylvester Butler, Kenneth Caudill, Sammy J. Douse, Willie English, Sidney Everett, Kelvin Frazier, Morris J. Gilbert, Jijuan T. Hagans. (Siegel, Peter) (Entered: 01/05/2005)
165 ORDER granting 164 Motion to extend time to file Motion for Class Certification until on or before January 20, 2005. Signed by Judge John E. Steele on 1/5/2005. (RKM) (Entered: 01/05/2005)
166 MOTION to certify class by Troy D. Hall, Benjamin Laflower, Curt Massie, Antonio J. McCloud, Lamar A. Miffin, Michael L. Montgomery, Kunta Porter, Issac Sharpe, Samuel Strother, Jeremiah Thomas, Danny E. Brown, Eugene E. Ulrath, Glenn Wheeler, Reginald Williams, Sylvester Butler, Kenneth Caudill,

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01/24/2005 01/27/2005 02/07/2005

Sammy J. Douse, Willie English, Sidney Everett, Kelvin Frazier, Morris J. Gilbert, Jijuan T. Hagans. Responses due by 1/31/2005 (Siegel, Peter) (Entered: 01/20/2005)
167 MEMORANDUM in support re 166 Motion to certify class, filed by Troy D. Hall, Benjamin Laflower, Curt Massie, Antonio J. McCloud, Lamar A. Miffin, Michael L. Montgomery, Kunta Porter, Issac Sharpe, Samuel Strother, Jeremiah Thomas, Danny E. Brown, Eugene E. Ulrath, Glenn Wheeler, Reginald Williams, Sylvester Butler, Kenneth Caudill, Sammy J. Douse, Willie English, Sidney Everett, Kelvin Frazier, Morris J. Gilbert, Jijuan T. Hagans. (Siegel, Peter) (Entered: 01/20/2005)
168 NOTICE by Troy D. Hall, Benjamin Laflower, Curt Massie, Antonio J. McCloud, Lamar A. Miffin, Michael L. Montgomery, Kunta Porter, Issac Sharpe, Samuel Strother, Jeremiah Thomas, Danny E. Brown, Eugene E. Ulrath, Glenn Wheeler, Reginald Williams, Chester Lambdin, Sylvester Butler, Kenneth Caudill, Sammy J. Douse, Willie English, Sidney Everett, Kelvin Frazier, Morris J. Gilbert, Jijuan T. Hagans re 166 MOTION to certify class Notice of Filing (Attachments: # 1 Affidavit Gregory V. Bell# 2 Affidavit Joseph Berry# 3 Affidavit Michael C. Coolen# 4 Affidavit Paul Echols# 5 Affidavit Shaun Fogle# 6 Affidavit Kelvin Frazier# 7 Affidavit Morris J. Gilbert# 8 Affidavit Charles Gundlah# 9 Affidavit JiJuan T. Hagans# 10 Affidavit George M. Jones# 11 Affidavit James H. Kelley# 12 Affidavit Mark A. Lang# 13 Affidavit Lamar A. Miffin# 14 Affidavit Stefan M. Linden# 15 Affidavit Robert McClellan# 16 Affidavit Victor P. McCrae# 17 Affidavit Jose L. Negron# 18 Affidavit Jeremiah Thomas# 19 Affidavit Dale R. Whalen# 20 Affidavit Reginald Williams# 21 Affidavit Glenn C. Williams# 22 Affidavit Efren Yero# 23 Exhibit Defendants' Answers to Interrogatories# 24 Exhibit Correctional Medical Authority Reports# 25 Exhibit Florida Corrections Commission Clase Management Report, Beds# 26 Exhibit Department of Corrections Annual Report, Inmate Population# 27 Affidavit Lisa White Shirley# 28 Exhibit IG Logs Disapproved Improper Force)(Siegel, Peter) (Entered: 01/20/2005)
169 NOTICE of filing by Troy D. Hall, Benjamin Laflower, Curt Massie, Antonio J. McCloud, Lamar A. Miffin, Michael L. Montgomery, Kunta Porter, Issac Sharpe, Samuel Strother, Jeremiah Thomas, Danny E. Brown, Eugene E. Ulrath, Glenn Wheeler, Reginald Williams, Sylvester Butler, Kenneth Caudill, Sammy J. Douse, Willie English, Sidney Everett, Kelvin Frazier, Morris J. Gilbert, Jijuan T. Hagans re 166 MOTION to certify class, 168 Notice (Other) (slu) (Entered: 01/26/2005)
170 RESPONSE in opposition re 166 MOTION to certify class filed by Secretary, Department of Corrections. (Dean, Denis) (Entered: 01/27/2005)
171 Unopposed MOTION for Extension of Time to Complete Discovery and for Extension of Time to Disclose Expert Witness Reports by Troy D. Hall, Benjamin Laflower, Curt Massie, Antonio J. McCloud, Lamar A. Miffin, Michael L. Montgomery, Kunta Porter, Issac Sharpe, Samuel Strother, Jeremiah Thomas, Danny E. Brown, Eugene E. Ulrath, Glenn Wheeler, Reginald Williams, Sylvester Butler, Kenneth Caudill, Sammy J. Douse, Willie English, Sidney Everett, Kelvin Frazier, Morris J. Gilbert, Jijuan T. Hagans. (Shirley, Lisa) (Entered: 02/07/2005)

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172 ORDER granting 171 Motion for Extension of Time to Complete Discovery. (See Order for details). Signed by Judge Douglas N. Frazier on 2/10/2005. (BJH, ) (Entered: 02/10/2005)
173 NOTICE of Appearance as counsel by Cullin Avram O'Brien on behalf of all plaintiffs (slu) (Entered: 02/16/2005)
174 MOTION for discovery (Payment of Discovery Costs) by Secretary, Department of Corrections. (Dean, Denis) (Entered: 02/22/2005)
175 NOTICE by Troy D. Hall, Benjamin Laflower, Curt Massie, Antonio J. McCloud, Lamar A. Miffin, Michael L. Montgomery, Kunta Porter, Issac Sharpe, Samuel Strother, Jeremiah Thomas, Danny E. Brown, Eugene E. Ulrath, Glenn Wheeler, Reginald Williams, Sylvester Butler, Kenneth Caudill, Sammy J. Douse, Willie English, Sidney Everett, Kelvin Frazier, Morris J. Gilbert, Jijuan T. Hagans Selecting Mediator (Siegel, Peter) (Entered: 02/22/2005)
176 RESPONSE in opposition re 174 MOTION for discovery (Payment of Discovery Costs) filed by Troy D. Hall, Benjamin Laflower, Curt Massie, Antonio J. McCloud, Lamar A. Miffin, Michael L. Montgomery, Kunta Porter, Issac Sharpe, Samuel Strother, Jeremiah Thomas, Danny E. Brown, Eugene E. Ulrath, Glenn Wheeler, Reginald Williams, Sylvester Butler, Kenneth Caudill, Sammy J. Douse, Willie English, Sidney Everett, Kelvin Frazier, Morris J. Gilbert, Jijuan T. Hagans. (Siegel, Peter) (Entered: 03/10/2005)
177 ORDER denying 174 Motion for payment of discovery costs. Signed by Judge Douglas N. Frazier on 3/15/2005. (brh) (Entered: 03/15/2005)
178 NOTICE of Appearance by Cassandra Capobianco on behalf of all plaintiffs (Capobianco, Cassandra) (Entered: 03/16/2005)
179 NOTICE of Appearance by Kristen Cooley Lentz on behalf of all plaintiffs (Lentz, Kristen) (Entered: 03/16/2005)
180 NOTICE of Hearing: Final Pretrial Conference RESET for 8/29/2005 09:00 AM in Courtroom A before Judge John E. Steele. (BMA ) (Entered: 03/16/2005)
181 MOTION to compel Inspection of Prison Facilities by Troy D. Hall, Benjamin Laflower, Curt Massie, Antonio J. McCloud, Lamar A. Miffin, Michael L. Montgomery, Kunta Porter, Issac Sharpe, Samuel Strother, Jeremiah Thomas, Danny E. Brown, Eugene E. Ulrath, Glenn Wheeler, Reginald Williams, Sylvester Butler, Kenneth Caudill, Sammy J. Douse, Willie English, Sidney Everett, Kelvin Frazier, Morris J. Gilbert, Jijuan T. Hagans. (Attachments: # 1 Exhibit A: Plaintiffs' Request to Enter on Land for Inspection# 2 Exhibit B Defendants' Response to Plaintiffs' Request to Enter on Land for Inspection)(Shirley, Lisa) (Entered: 03/18/2005)
182 NOTICE of Hearing: Final Pretrial Conference RESET for 1/17/2006 09:00 AM in Courtroom A before Judge John E. Steele. (BMA ) (Entered: 03/18/2005)
183 MOTION to expedite Ruling on Plaintiffs' Motion to Compel Inspection of Prison Facilities by Troy D. Hall, Benjamin Laflower, Curt Massie, Antonio J. McCloud, Lamar A. Miffin, Michael L. Montgomery, Kunta Porter, Issac Sharpe, Samuel Strother, Jeremiah Thomas, Danny E. Brown, Eugene E. Ulrath, Glenn Wheeler, Reginald Williams, Sylvester Butler, Kenneth Caudill, Sammy J.

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Douse, Willie English, Sidney Everett, Kelvin Frazier, Morris J. Gilbert, Jijuan T. Hagans. (Shirley, Lisa) (Entered: 03/18/2005)
184 CERTIFICATE of Counsel re 183 MOTION to expedite Ruling on Plaintiffs' Motion to Compel Inspection of Prison Facilities by Lisa White Shirley on behalf of all plaintiffs (Shirley, Lisa) (Entered: 03/21/2005)
185 RESPONSE to motion re 181 MOTION to compel Inspection of Prison Facilities filed by Secretary, Department of Corrections. (Attachments: # 1 Exhibit)(Savor, Kathleen) (Entered: 04/01/2005)
186 Unopposed MOTION to extend time to Disclose Expert Witness Reports by Troy D. Hall, Benjamin Laflower, Curt Massie, Antonio J. McCloud, Lamar A. Miffin, Michael L. Montgomery, Kunta Porter, Issac Sharpe, Samuel Strother, Jeremiah Thomas, Danny E. Brown, Eugene E. Ulrath, Glenn Wheeler, Reginald Williams, Sylvester Butler, Kenneth Caudill, Sammy J. Douse, Willie English, Sidney Everett, Kelvin Frazier, Morris J. Gilbert, Jijuan T. Hagans. (Shirley, Lisa) (Entered: 04/06/2005)
190 EMERGENCY correspondence to Lisa White Shirley by Michael Scott Warren. (slu) (Entered: 04/13/2005)
187 ORDER directing the Clerk to file the Emergency Correspondence from Michael Scott Warren. Signed by Judge Douglas N. Frazier on 4/12/2005. (brh) (Entered: 04/12/2005)
188 ENDORSED ORDER granting 186 Unopposed Motion for Enlargement of Time to Disclose Expert Witness Report. The plaintiffs shall have until 6/17/05 in which to disclose their experts' reports and the defendants shall have until 7/15/05 in which to disclose their experts' reports. Signed by Judge Douglas N. Frazier on 4/12/2005. (brh) (Entered: 04/12/2005)
189 ORDER requiring witnin 11 days for Plaintiffs to file a Reply to Defendants' Response 185. See Order for details. Signed by Judge Douglas N. Frazier on 4/13/2005. (brh) (Entered: 04/13/2005)
191 REPLY to response to motion re 181 MOTION to compel Inspection of Prison Facilities filed by Troy D. Hall, Benjamin Laflower, Curt Massie, Antonio J. McCloud, Lamar A. Miffin, Michael L. Montgomery, Kunta Porter, Issac Sharpe, Samuel Strother, Jeremiah Thomas, Danny E. Brown, Eugene E. Ulrath, Glenn Wheeler, Reginald Williams, Sylvester Butler, Kenneth Caudill, Sammy J. Douse, Willie English, Sidney Everett, Kelvin Frazier, Morris J. Gilbert, Jijuan T. Hagans. (Attachments: # 1 Exhibit Declaration of Dr. Kathryn Burns# 2 Exhibit Declaration of Dr. Woodhall Stopford# 3 Exhibit Declaration of Dr. Donald Dressler# 4 Exhibit Declaration of Howard Dozier# 5 Exhibit Declaration of Peter M. Siegel)(Shirley, Lisa) (Entered: 04/22/2005)
192 Unopposed MOTION to dismiss Plaintiffs Troy Hall, Michael Montgomery and Glenn Wheeler by Troy D. Hall, Benjamin Laflower, Curt Massie, Antonio J. McCloud, Michael L. Montgomery, Kunta Porter, Issac Sharpe, Samuel Strother, Jeremiah Thomas, Danny E. Brown, Eugene E. Ulrath, Glenn Wheeler, Reginald Williams, Sylvester Butler, Kenneth Caudill, Sammy J. Douse, Willie English, Sidney Everett, Kelvin Frazier, Morris J. Gilbert, Jijuan T. Hagans. (Shirley, Lisa) (Entered: 04/22/2005)

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193 EMERGENCY MOTION for help from Judge Douglas Frazier, to assist plaintiff Frazier in the Brown v. Crosby by Kelvin Frazier. (slu) (Entered: 04/25/2005)
194 AFFIDAVIT of Kelvin Frazier re: 193 MOTION for help from Judge Douglas Frazier, to assist plaintiff Frazier in the Brown v. Crosby by Kelvin Frazier. (slu) (Entered: 04/25/2005)
195 ORDER denying 193 Emergency Help from Judge Douglas Frazier to Assist Plaintiff Frazier. Counsel for the Plaintiffs may assist Mr. Frazier as appropriate. Signed by Judge Douglas N. Frazier on 4/26/2005. (brh) (Entered: 04/26/2005)
196 ORDER returning Michael Scott Warren's Emergency Motion to him. The Clerk is directed to return the motion without filing it. Signed by Judge Douglas N. Frazier on 5/2/2005. (brh) (Entered: 05/02/2005)
197 ORDER returning Michael Scott Warren's Emergency Motion to him. The Clerk is directed to return the motion without filing it. Signed by Judge Douglas N. Frazier on 5/9/2005. (brh) (Entered: 05/09/2005)
198 Unopposed MOTION to extend time to Disclose Expert Witness Reports, Complete Discovery, and File Dispositive Motions by Troy D. Hall, Benjamin Laflower, Curt Massie, Antonio J. McCloud, Lamar A. Miffin, Michael L. Montgomery, Kunta Porter, Issac Sharpe, Samuel Strother, Jeremiah Thomas, Danny E. Brown, Eugene E. Ulrath, Glenn Wheeler, Reginald Williams, Sylvester Butler, Kenneth Caudill, Sammy J. Douse, Willie English, Sidney Everett, Kelvin Frazier, Morris J. Gilbert, Jijuan T. Hagans. (Shirley, Lisa) (Entered: 05/23/2005)
199 ORDER that non-party Michael Scott Warren cannot litigate matters in this case. The Clerk is directed to return his Emergency Motion to him without filing it. Signed by Judge Douglas N. Frazier on 5/25/2005. (brh) (Entered: 05/25/2005)
200 ENDORSED ORDER. The Clerk is directed to return Mr. Miller's Emergency Letter to him without filing it. Any future correspondence or filings will be returned to Mr. Miller. Signed by Judge Douglas N. Frazier on 6/8/2005. (bas) (Entered: 06/08/2005)
201 ORDER granting 192 Plaintiffs' Motion for Voluntary Dismissal of Troy Hall, Michael Montgomery and Glenn Wheeler. The Complaint is dismissed without prejudiced as to all defendants as it relates to the claims by plaintiffs Troy Hall, Michael Montgomery and Glenn Wheeler only. (See Order for details). Signed by Judge John E. Steele on 6/10/2005. (ATZ) (Entered: 06/10/2005)
202 Emergency MOTION for Hearing on Pending Motions by Troy D. Hall, Benjamin Laflower, Curt Massie, Antonio J. McCloud, Lamar A. Miffin, Michael L. Montgomery, Kunta Porter, Issac Sharpe, Samuel Strother, Jeremiah Thomas, Danny E. Brown, Eugene E. Ulrath, Glenn Wheeler, Reginald Williams, Sylvester Butler, Kenneth Caudill, Sammy J. Douse, Willie English, Sidney Everett, Kelvin Frazier, Morris J. Gilbert, Jijuan T. Hagans. (Siegel, Peter) (Entered: 06/10/2005)
203 ORDER denying 202 Plaintiffs' Emergency Motion for Status Conference. Signed by Judge John E. Steele on 6/13/2005. (ATZ) (Entered: 06/13/2005)

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204 ORDER requiring the Clerk to return Thiamond King's letter without filing it. Any future correspondence or filings by Mr. King will be returned to him. Signed by Judge Douglas N. Frazier on 6/15/2005. (brh) (Entered: 06/15/2005)
205 OPINION AND ORDER denying 166 Plaintiffs' Motion for Class Certification. (See Order for details). Signed by Judge John E. Steele on 6/21/2005. (ATZ) (Entered: 06/21/2005)
206 ORDER denying 181 Motion to compel inspection of prison facilities, denying 183 Motion to expedite ruling, and granting 198 Unopposed motion for enlargement of time to disclose expert witness reports, complete discovery, and file dispositive motions. Within 11 days, the parties are to confer and submit proposed dates for the disclosure of expert witness reports, deadline to complete discovery, and dispositive motion deadline. Signed by Judge Douglas N. Frazier on 6/21/2005. (brh) (Entered: 06/21/2005)
207 MOTION to compel response or MOTION to dismiss plaintiff from this action by Benjamin Laflower. (slu) (Entered: 06/21/2005)
208 ORDER denying 207 Motion to compel response or to be released from this action. Ms. Shirley is directed to review Mr. LaFlower's Motion to Compel Response or to be Released from this Action 207, and take any steps that are appropriate in resolving the issues raised by Mr. LaFlower. The Clerk is directed to send a copy of this Order to Mr. LaFlower. Signed by Judge Douglas N. Frazier on 6/23/2005. (brh) (Entered: 06/23/2005)
209 Unopposed MOTION to extend time to to Submit Proposed Dates for The Disclosure of Expert Witness Reports, Deadline to Complete Discovery, and Dispositive Motion Deadline by Troy D. Hall, Benjamin Laflower, Curt Massie, Antonio J. McCloud, Lamar A. Miffin, Michael L. Montgomery, Kunta Porter, Issac Sharpe, Samuel Strother, Jeremiah Thomas, Danny E. Brown, Eugene E. Ulrath, Glenn Wheeler, Reginald Williams, Sylvester Butler, Kenneth Caudill, Sammy J. Douse, Willie English, Sidney Everett, Kelvin Frazier, Morris J. Gilbert, Jijuan T. Hagans. (Siegel, Peter) (Entered: 06/29/2005)
210 MOTION for reconsideration re 205 Order on motion to certify class by Troy D. Hall, Benjamin Laflower, Curt Massie, Antonio J. McCloud, Lamar A. Miffin, Michael L. Montgomery, Kunta Porter, Issac Sharpe, Samuel Strother, Jeremiah Thomas, Danny E. Brown, Eugene E. Ulrath, Glenn Wheeler, Reginald Williams, Sylvester Butler, Kenneth Caudill, Sammy J. Douse, Willie English, Sidney Everett, Kelvin Frazier, Jijuan T. Hagans. (Attachments: # 1)(Shirley, Lisa) (Entered: 06/29/2005)
211 ENDORSED ORDER granting 209 Unopposed Motion to Defer Submitting Proposed Dates for the Disclosure of Expert Witness Reports, Deadline to Complete Discovery, and Dispositive Motion Deadline. The parties shall have 15 days after the ruling on the Motion for Reconsideration to file their proposed dates. Signed by Judge Douglas N. Frazier on 7/5/2005. (brh) (Entered: 07/05/2005)
212 RESPONSE in opposition re 210 MOTION for reconsideration re 205 Order on motion to certify class filed by Secretary, Department of Corrections. (Dean, Denis) (Entered: 07/08/2005)

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07/08/2005
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213 Unopposed MOTION to dismiss Plaintiff Samuel Strother by Benjamin Laflower, Curt Massie, Antonio J. McCloud, Lamar A. Miffin, Kunta Porter, Issac Sharpe, Samuel Strother, Jeremiah Thomas, Danny E. Brown, Eugene E. Ulrath, Reginald Williams, Sylvester Butler, Kenneth Caudill, Sammy J. Douse, Willie English, Sidney Everett, Kelvin Frazier, Morris J. Gilbert, Jijuan T. Hagans. (Shirley, Lisa) (Entered: 07/08/2005)
214 ORDER granting 213 Motion to dismiss and dismissing plaintiff Samuel Strother without prejudice. The Clerk shall update the case heading to reflect the dismissal of this plaintiff. The Clerk is further directed to terminate all deadlines and motions as they pertain to Samuel Strother only. Signed by Judge John E. Steele on 7/11/2005. (RKM) (Entered: 07/11/2005)
215 OPINION AND ORDER denying 210 Motion for reconsideration. See Order for details. Signed by Judge John E. Steele on 7/18/2005. (RKM) (Entered: 07/18/2005)
216 Unopposed MOTION to stay All Proceedings Pending Rule 23(f) Appeal by Benjamin Laflower, Curt Massie, Antonio J. McCloud, Lamar A. Miffin, Kunta Porter, Issac Sharpe, Jeremiah Thomas, Danny E. Brown, Eugene E. Ulrath, Reginald Williams, Sylvester Butler, Kenneth Caudill, Sammy J. Douse, Willie English, Sidney Everett, Kelvin Frazier, Morris J. Gilbert, Jijuan T. Hagans. (Attachments: # 1 Exhibit Application Under Rule 23(f) for Leave to Appeal Class Certification Order)(Shirley, Lisa) (Entered: 07/27/2005)
217 ORDER granting 216 Motion to stay and all proceedings are stayed pending resolution of the application for leave to appeal and, if leave is granted, the appeal to the Eleventh Circuit of the Opinion and Order denying class certification. Signed by Judge John E. Steele on 7/28/2005. (RKM) (Entered: 07/28/2005)
218 ORDER directing the Clerk to return the letter by Kelvin Frazier dated July 28, 2005. Signed by Judge Douglas N. Frazier on 8/4/2005. (brh) (Entered: 08/04/2005)
219 USCA ORDER that the petition for permission to appeal is denied. EOD: 08/22/05 USCA #05-90022-E (kma) (Entered: 08/24/2005)
220 ORDER lifting stay pursuant to 219 USCA Order. The parties shall submit their proposed dates for deadlines pursuant to the [211] Endorsed Order within 10 days. Signed by Judge John E. Steele on 8/25/2005. (RKM) (Entered: 08/25/2005)
221 NOTICE by Benjamin Laflower, Curt Massie, Antonio J. McCloud, Lamar A. Miffin, Kunta Porter, Issac Sharpe, Samuel Strother, Jeremiah Thomas, Danny E. Brown, Eugene E. Ulrath, Reginald Williams, Sylvester Butler, Kenneth Caudill, Sammy J. Douse, Willie English, Sidney Everett, Kelvin Frazier, Morris J. Gilbert, Jijuan T. Hagans re 220 Order to Submit Proposed Dates (Siegel, Peter) (Entered: 09/07/2005)
222 ORDER regarding deadlines.Signed by Judge Douglas N. Frazier on 9/9/2005. (BJH, ) (Entered: 09/09/2005)

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09/09/2005
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223 AMENDED CASE MANAGEMENT AND SCHEDULING ORDER: Final Pretrial Conference set for 6/19/2006 09:00 AM in Courtroom A before Judge John E. Steele. Jury Trial set for trial term 7/3/2006 before Judge John E. Steele. (See Order for all deadlines)Signed by Judge Douglas N. Frazier on 9/9/2005. (BJH, ) (Entered: 09/09/2005)
224 MOVEMENT to the court class certification by Michael Scott Warren. (kma) Modified on 9/22/2005 (slu). STRICKEN AND RETURNED PURSUANT TO DOCUMENT 225 (Entered: 09/15/2005)
225 ORDER denying 224 Movement of the Court filed by Michael Scott Warren. Mr. Warren is not a party to this action and cannot litigate matters in this case. The Clerk is directed to strike Mr. Warren's Movement to the Court and return it to him. Signed by Judge Douglas N. Frazier on 9/16/2005. (brh) (Entered: 09/16/2005)
226 STIPULATION of Dismissal by Troy D. Hall, Benjamin Laflower, Curt Massie, Antonio J. McCloud, Lamar A. Miffin, Michael L. Montgomery, Kunta Porter, Issac Sharpe, Samuel Strother, Jeremiah Thomas, Danny E. Brown, Eugene E. Ulrath, Glenn Wheeler, Reginald Williams, Secretary, Department of Corrections, Gerald H. Abdul-Wasi, Joseph Thompson, Chester Lambdin, Joseph Petrovsky, Wendell Whitehurst, Michael Scott Warren, Sylvester Butler, Richard Scott Doss, Kenneth Caudill, Sammy J. Douse, Tareyan Cooks, Willie English, Sidney Everett, Kelvin Frazier, Morris J. Gilbert, Jijuan T. Hagans. (Siegel, Peter) (Entered: 11/23/2005)
227 ORDER on 226 Stipulation of Dismissal dismissing case without prejudice with each party to bear its own costs and expenses. The Clerk shall enter judgment accordingly and close the case. The Clerk is further directed to terminate any remaining motions and previously scheduled deadlines as moot. Signed by Judge John E. Steele on 11/28/2005. (RKM) (Entered: 11/28/2005)
228 JUDGMENT in favor of plaintiffs and defendants Civil appeals checklist and PLRA notice mailed. (Signed by Deputy Clerk) (slu) (Entered: 11/28/2005)
229 EMERGENCY NOTICE to US DOJ/FBI/USDA by Michael Scott Warren. (drn) (Entered: 12/22/2005)
230 ORDER Signed by Judge John E. Steele on 12/23/2005. (BMA ) (Entered: 12/23/2005)
231 CRIMINAL civil jurisdiction question to the Court Lent v. Lopes 107 FRD 62 63 D. Conn 1985; REPORT for USDA/DOJ primary by Michael Scott Warren (slu) (Entered: 01/05/2006)
232 ORDER construing this document as a motion and the motion is denied re 231. Signed by Judge Douglas N. Frazier on 1/3/06. (slu) (Entered: 01/05/2006)

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[CONTENT] the U.S. District Court | the Middle District | Florida | 42 | 1983 | September 12, 2003 ||| the Florida Institutional Legal Services, Inc. | the Florida Justice Institute, Inc. | the Southern Poverty Law Center ||| Florida Department of Corrections (FDOC |||  ||| the Eighth Amendment's |||  |||  |||  ||| July 14, 2004 | John E. Steel ||| Steel | September 20, 2004 ||| Steel | June 21, 2005 |||  ||| Steel | July 21, 2005 ||| November 28, 2005 | November 23, 2005 |||  [SUMMARY] In the U.S. District Court for the Middle District of Florida, a group of state prisoners filed a class action complaint pursuant to 42 U.S.C. § 1983 on September 12, 2003.  The plaintiffs' attorneys included lawyers of the Florida Institutional Legal Services, Inc., the Florida Justice Institute, Inc., the Southern Poverty Law Center, and private counsel.  The plaintiffs sought declaratory and injunctive relief, as well as attorneys' fees, from the defendant state officials, basing their complaint upon allegations that Florida Department of Corrections (FDOC) officers improperly used chemical agents (tear gas and pepper spray) against prisoners in "non-spontaneous" circumstances.  (Spontaneous circumstances, the plaintiffs explained, were those presenting an immediate need to use force without time for reflection or planning.)  

According to the complaint, rather than use the chemical agents as a good-faith means of maintaining prison order and discipline, the officers used these chemicals maliciously and sadistically, contravening the Eighth Amendment's prohibition of cruel and unusual punishment,.  The complaint detailed numerous instances of chemical agent misuse, in violation of applicable FDOC regulations governing use of force,.  The complaint also set out allegations of officials' use of stronger-than-authorized chemical agents,  officials' increasingly-common resort to use of chemical agents when unauthorized by regulations, their failure to fairly investigate and act upon prisoners' grievances stemming from the misuse and overuse of these sprays, and purposeful neglect of post-use procedures to limit pain and injury stemming from these chemicals. Plaintiffs sought an injunction that would forbidthe excessive and unjustified use of these chemical agents and require that the defendants develop and submit to the court a comprehensive plan ensuring only the constitutionally-justified use of this form of discipline.

On July 14, 2004, in an unpublished order, District Judge John E. Steel denied the defendants' motion to dismiss the case, finding that the plaintiffs had standing and had sufficiently alleged facts which, if proven true, would entitle them to relief.  Judge Steel later, on September 20, 2004, denied the plaintiffs' motion for a preliminary injunction and expressed reluctance to interfere in prison operations, at least at this stage of the proceedings.

The effort to have plaintiffs' case certified as a class action was rejected by Judge Steel on June 21, 2005.  According to the court, the fact-intensive nature of the use of these sprays by correctional officers precluded his finding that the factual allegations by the named plaintiffs had sufficient typicality and commonality with other and future prisoners' circumstances.  Plaintiffs' attempt to have Judge Steel reconsider his denial of class action status was denied on July 21, 2005.

On November 28, 2005, the case was dismissed without prejudice, after the parties had, on November 23, 2005, filed a stipulation of dismissal, with each party to bear its own costs and expenses.  Although this suggests that a settlement occurred, we have neither a copy of a settlement agreement nor any information about settlement terms.

