Case: 2:08-ct-21 As of: 02/14/2020 07:14 PM EST 1 of 22
CLOSED,USMJ Gates
U.S. District Court EASTERN DISTRICT OF NORTH CAROLINA (Northern Division)
CIVIL DOCKET FOR CASE #: 2:08−ct−00021−D

MATHIS et al v. GEO GROUP INC. et al Assigned to: District Judge James C. Dever, III Case in other court: District of Columbia, 1:07−cv−01155 Cause: 42:1983 Prisoner Civil Rights
Plaintiff

Date Filed: 05/28/2008 Date Terminated: 03/26/2012 Jury Demand: Plaintiff Nature of Suit: 550 Prisoner: Civil Rights Jurisdiction: U.S. Government Defendant

KEITH MATHIS TERMINATED: 10/27/2008

represented by Danielle M. Estrada Covington & Burling, LLP 1201 Pennsylvania Ave., NW Washington, DC 20004 202−662−5331 Fax: 202−778−5331 Email: destrada@cov.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Neil A. Riemann Penry Riemann PLLC 1330 Saint Mary's St., Suite 260 Raleigh, NC 27605 919−833−9449 Fax: 919−516−0880 Email: neil.riemann@penryriemann.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Anthony Herman Covington & Burling, LLP 1201 Pennsylvania Ave., NW Washington, DC 20004 202−662−5280 Fax: 202−662−6291 Email: aherman@cov.com TERMINATED: 10/27/2011

Deborah M. Golden Washington Lawyers' Committee For Civil Rights 11 Dupont Circle, NW, Suite 400 Washington, DC 20036 202−630−0332 Email: deb.golden@gmail.com ATTORNEY TO BE NOTICED

Philip J. Fornaci Washington Lawyers' Committee For Civil Rights 11 Dupont Circle, NW, Suite 400 Washington, DC 20036 202−319−1000 ext. 133 Fax: 202−319−1010 Email: phil_fornaci@washlaw.org ATTORNEY TO BE NOTICED

Plaintiff
REON HOLLOWAY TERMINATED: 10/27/2008

represented by Danielle M. Estrada (See above for address)

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LEAD ATTORNEY ATTORNEY TO BE NOTICED

Neil A. Riemann (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Anthony Herman (See above for address) TERMINATED: 10/27/2011

Deborah M. Golden (See above for address) ATTORNEY TO BE NOTICED

Philip J. Fornaci (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
DAVID ROGERS TERMINATED: 10/27/2008

represented by Danielle M. Estrada (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Neil A. Riemann (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Anthony Herman (See above for address) TERMINATED: 10/27/2011

Deborah M. Golden (See above for address) ATTORNEY TO BE NOTICED

Philip J. Fornaci (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
BENJAMIN HAMILTON TERMINATED: 10/27/2008

represented by Danielle M. Estrada (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Neil A. Riemann (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Anthony Herman (See above for address) TERMINATED: 10/27/2011

Deborah M. Golden (See above for address) ATTORNEY TO BE NOTICED

Philip J. Fornaci (See above for address)

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ATTORNEY TO BE NOTICED

Plaintiff
CARL BUTLER TERMINATED: 10/27/2008

represented by Danielle M. Estrada (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Neil A. Riemann (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Anthony Herman (See above for address) TERMINATED: 10/27/2011

Deborah M. Golden (See above for address) ATTORNEY TO BE NOTICED

Philip J. Fornaci (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
HAROLD ROBINSON TERMINATED: 10/27/2008

represented by Danielle M. Estrada (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Neil A. Riemann (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Anthony Herman (See above for address) TERMINATED: 10/27/2011

Deborah M. Golden (See above for address) ATTORNEY TO BE NOTICED

Philip J. Fornaci (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
CHARLES LEWIS TERMINATED: 10/27/2008

represented by Danielle M. Estrada (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Neil A. Riemann (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Anthony Herman (See above for address) TERMINATED: 10/27/2011

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Deborah M. Golden (See above for address) ATTORNEY TO BE NOTICED

Philip J. Fornaci (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
JOHN ROE TERMINATED: 10/27/2008

represented by Danielle M. Estrada (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Neil A. Riemann (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Anthony Herman (See above for address) TERMINATED: 10/27/2011

Deborah M. Golden (See above for address) ATTORNEY TO BE NOTICED

Philip J. Fornaci (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
JIMMIE FOWLER Each Individually and on behalf of all others similarly situated TERMINATED: 10/27/2008

represented by Danielle M. Estrada (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Neil A. Riemann (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Anthony Herman (See above for address) TERMINATED: 10/27/2011

Deborah M. Golden (See above for address) ATTORNEY TO BE NOTICED

Philip J. Fornaci (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Michael Collins TERMINATED: 09/30/2009

represented by Neil A. Riemann (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Deborah M. Golden (See above for address) ATTORNEY TO BE NOTICED

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Plaintiff Louis Calland TERMINATED: 09/26/2011
Plaintiff John Doe TERMINATED: 10/27/2008
Plaintiff John Roe TERMINATED: 09/30/2009

Philip J. Fornaci (See above for address) ATTORNEY TO BE NOTICED
represented by Danielle M. Estrada (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Laura E. Schattschneider Covington & Burling, LLP 1201 Pennsylvania Ave., NW Washington, DC 20004 202−662−5143 Fax: 202−778−5143 Email: lschattschneider@cov.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Neil A. Riemann (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Deborah M. Golden (See above for address) ATTORNEY TO BE NOTICED
Donald J. Ridings Covington & Burling, LLP 1201 Pennsylvania Ave., NW Washington, DC 20004 202−662−5357 Fax: 202−778−5357 Email: dridings@cov.com ATTORNEY TO BE NOTICED
Philip J. Fornaci (See above for address) ATTORNEY TO BE NOTICED
represented by Neil A. Riemann (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Deborah M. Golden (See above for address) ATTORNEY TO BE NOTICED
Philip J. Fornaci (See above for address) ATTORNEY TO BE NOTICED
represented by Neil A. Riemann (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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Deborah M. Golden (See above for address) ATTORNEY TO BE NOTICED

Philip J. Fornaci (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Gregory Terrell

represented by Sarah M. Hall Covington & Burling, LLP 1201 Pennsylvania Ave., NW Washington, DC 20004 202−662−5849 Fax: 202−778−5849 Email: shall@cov.com ATTORNEY TO BE NOTICED

Neil A. Riemann (See above for address) ATTORNEY TO BE NOTICED

V. Defendant GEO Group, Inc A Florida for−profit corporation TERMINATED: 07/18/2011
Defendant Federal Bureau of Prisons UNITED STATES OF AMERICA, through its department,
Defendant

represented by Robert T. Numbers , II Womble Bond Dickinson (US) LLP 555 Fayetteville St., Suite 1100 Raleigh, NC 27601 919−755−8184 Fax: 919−755−6094 Email: RNumbers@wcsr.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
W. Ellis Boyle United States Attorney's Office − EDNC 150 Fayetteville Street, Suite 2100 Raleigh, NC 27601 TERMINATED: 10/21/2010
represented by Kathryn L. Wyer U. S. Dept. of Justice Civil Division 20 Massachusetts Ave., NW Washington, DC 20530 202−616−8475 Fax: 202−616−8470 Email: kathryn.wyer@usdoj.gov LEAD ATTORNEY
R. A. Renfer , Jr. United States Attorney's Office − EDNC 150 Fayetteville Street, Suite 2100 Raleigh, NC 27601 919−856−4530 Email: usance.ecfcivil2@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

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Harley Lappin in his official capacity as Director of the United States Bureau of Prisons

represented by Kathryn L. Wyer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

R. A. Renfer , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 06/28/2007
06/28/2007 06/28/2007
06/28/2007 07/02/2007 07/02/2007 07/26/2007
07/26/2007 08/08/2007 08/09/2007 08/09/2007 08/09/2007

# Docket Text
1 MOTION for Leave to Proceed by Pseudonym by CARL BUTLER, HAROLD ROBINSON, CHARLES LEWIS, JOHN DOE, JOHN ROE, JIMMIE FOWLER, KEITH MATHIS, REON HOLLOWAY, DAVID ROGERS, BENJAMIN HAMILTON (Attachments: # 1 Text of Proposed Order, # 2 Memordum in Support)(jf, ). Modified on 7/2/2007 (jf, ). [Transferred from District of Columbia on 6/2/2008.] (Entered: 07/02/2007)
2 ORDER temporarily granting 1 MOTION for Leave to Proceed by Pseudonym. Signed by Judge Royce C. Lamberth on June 28, 2007. (See order for further details). (jf, ) [Transferred from District of Columbia on 6/2/2008.] (Entered: 07/02/2007)
3 COMPLAINT against GEO GROUP INC., FEDERAL BUREAU OF PRISONS, HARLEY LAPPIN ( Filing fee $ 350, receipt number 4616005174) filed by CARL BUTLER, HAROLD ROBINSON, CHARLES LEWIS, JOHN DOE, JOHN ROE, JIMMIE FOWLER, KEITH MATHIS, REON HOLLOWAY, DAVID ROGERS, BENJAMIN HAMILTON. (Attachments: # 1 Civil Cover Sheet)(jf, ) [Transferred from District of Columbia on 6/2/2008.] (Entered: 07/02/2007)
SUMMONS Not Issued as to GEO GROUP INC., FEDERAL BUREAU OF PRISONS, HARLEY LAPPIN (jf, ) [Transferred from District of Columbia on 6/2/2008.] (Entered: 07/02/2007)
Summons (6) Issued as to GEO GROUP INC.(2), FEDERAL BUREAU OF PRISONS (2), HARLEY LAPPIN (2). (jf, ) Modified on 7/2/2007 (jf, ). [Transferred from District of Columbia on 6/2/2008.] (Entered: 07/02/2007)
SUMMONS (2) Issued as to FEDERAL BUREAU OF PRISONS, U.S. Attorney and U.S. Attorney General. (jf, ) [Transferred from District of Columbia on 6/2/2008.] (Entered: 07/02/2007)
4 MOTION to Dismiss and Motion to Transfer by GEO GROUP INC. (Attachments: # 1 Statement of Facts # 2 Exhibit Affadavit of John White# 3 Exhibit Jackson v. FBOP Caselaw# 4 Exhibit McCullough v. BOP Caselaw# 5 Exhibit FJC Statistics# 6 Text of Proposed Order)(Israel, Deborah) [Transferred from District of Columbia on 6/2/2008.] (Entered: 07/26/2007)
5 MOTION to Transfer Case by GEO GROUP INC. (See Docket Entry 4 to view document). (nmw, ) [Transferred from District of Columbia on 6/2/2008.] (Entered: 07/27/2007)
6 NOTICE of Appearance by Karen L. Melnik on behalf of FEDERAL BUREAU OF PRISONS, HARLEY LAPPIN (Melnik, Karen) [Transferred from District of Columbia on 6/2/2008.] (Entered: 08/08/2007)
7 NOTICE of Appearance by Danielle M. Estrada on behalf of all plaintiffs (Estrada, Danielle) [Transferred from District of Columbia on 6/2/2008.] (Entered: 08/09/2007)
8 NOTICE of Appearance by Anthony Herman on behalf of all plaintiffs (Herman, Anthony) [Transferred from District of Columbia on 6/2/2008.] (Entered: 08/09/2007)
9 Memorandum in opposition to re 4 MOTION to Dismiss and Motion to Transfer, 5 MOTION to Transfer Case filed by CARL BUTLER, HAROLD ROBINSON, CHARLES LEWIS, JOHN DOE, JOHN ROE, JIMMIE FOWLER, KEITH MATHIS, REON HOLLOWAY, DAVID ROGERS, BENJAMIN HAMILTON. (Attachments: # 1 Affidavit of Danielle M. Estrada# 2 Exhibit 1 Part 1# 3 Exhibit 1 Part 2# 4 Exhibit

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08/10/2007 08/17/2007 08/20/2007 08/20/2007 08/20/2007 08/20/2007 08/20/2007 08/20/2007 08/20/2007 08/20/2007 08/20/2007
08/20/2007 08/21/2007 08/21/2007 08/21/2007

2# 5 Exhibit 3# 6 Text of Proposed Order)(Estrada, Danielle) [Transferred from District of Columbia on 6/2/2008.] (Entered: 08/09/2007)
10 NOTICE of Appearance by Donald Lee Kahl on behalf of all plaintiffs (Kahl, Donald) [Transferred from District of Columbia on 6/2/2008.] (Entered: 08/10/2007)
11 NOTICE of Appearance by Ivy Ann Lange on behalf of all plaintiffs (Lange, Ivy) [Transferred from District of Columbia on 6/2/2008.] (Entered: 08/17/2007)
12 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. GEO GROUP INC. served on 7/5/2007, answer due 7/25/2007 (Estrada, Danielle) [Transferred from District of Columbia on 6/2/2008.] (Entered: 08/20/2007)
13 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the US Attorney. FEDERAL BUREAU OF PRISONS served on 7/5/2007, answer due 9/4/2007 (Estrada, Danielle) [Transferred from District of Columbia on 6/2/2008.] (Entered: 08/20/2007)
14 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the US Attorney. HARLEY LAPPIN served on 7/5/2007, answer due 9/4/2007 (Estrada, Danielle) [Transferred from District of Columbia on 6/2/2008.] (Entered: 08/20/2007)
15 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to (Attachments: # 1 Exhibit Receipt for Certified Mail)(Estrada, Danielle) [Transferred from District of Columbia on 6/2/2008.] (Entered: 08/20/2007)
16 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to (Attachments: # 1 Exhibit Receipt for Certified Mail)(Estrada, Danielle) [Transferred from District of Columbia on 6/2/2008.] (Entered: 08/20/2007)
17 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on Attorney General. Date of Service Upon Attorney General 07/06/2007. (Attachments: # 1 Exhibit Receipt for Certified Mail)(Estrada, Danielle) Modified on 8/20/2007 (jf, ). [Transferred from District of Columbia on 6/2/2008.] (Entered: 08/20/2007)
18 ENTERED IN ERROR.....Memorandum in opposition to re 4 MOTION to Dismiss and Motion to Transfer filed by GEO GROUP INC.. (Attachments: # 1 Exhibit # 2 Exhibit)(Israel, Deborah) Modified on 8/21/2007 (nmw, ). [Transferred from District of Columbia on 6/2/2008.] (Entered: 08/20/2007)
19 ENTERED IN ERROR.....Memorandum in opposition to re 4 MOTION to Dismiss and Motion to Transfer filed by GEO GROUP INC.. (Attachments: # 1 Exhibit # 2 Exhibit)(Israel, Deborah) Modified on 8/21/2007 (nmw, ). [Transferred from District of Columbia on 6/2/2008.] (Entered: 08/20/2007)
20 ERRATA regarding e−mail notification for Docket Entry #17 by CARL BUTLER, HAROLD ROBINSON, CHARLES LEWIS, JOHN DOE, JOHN ROE, JIMMIE FOWLER, KEITH MATHIS, REON HOLLOWAY, DAVID ROGERS, BENJAMIN HAMILTON. (Estrada, Danielle) [Transferred from District of Columbia on 6/2/2008.] (Entered: 08/20/2007)
21 ENTERED IN ERROR.....REPLY to opposition to motion re 4 MOTION to Dismiss and Motion to Transfer, 5 MOTION to Transfer Case filed by GEO GROUP INC. (Attachments: # 1 Exhibit 1# 2 Exhibit 2)(nmw, ) Modified on 8/22/2007 (ztd, ). [Transferred from District of Columbia on 6/2/2008.] (Entered: 08/21/2007)
ENTERED IN ERROR.....NOTICE OF CORRECTED DOCKET ENTRY: Docket Entries 18 and 19 were entered in error as an opposition and was refiled as Docket Entry 21 . (nmw, ) Modified on 8/22/2007 (ztd, ). [Transferred from District of Columbia on 6/2/2008.] (Entered: 08/21/2007)
22 NOTICE of Appearance by Philip J. Fornaci on behalf of all plaintiffs (Fornaci, Philip) [Transferred from District of Columbia on 6/2/2008.] (Entered: 08/21/2007)
23 REPLY to opposition to motion re 4 MOTION to Dismiss and Motion to Transfer, 5 MOTION to Transfer Case filed by GEO GROUP INC.. (Attachments: # 1 Exhibit 1# 2 Exhibit 2)(td, ) [Transferred from District of Columbia on 6/2/2008.] (Entered: 08/22/2007)

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08/21/2007 08/23/2007 08/23/2007 08/23/2007 08/31/2007
09/12/2007 09/18/2007
09/18/2007 09/24/2007 09/25/2007 09/25/2007

NOTICE OF CORRECTED DOCKET ENTRY: re 19 Memorandum in Opposition, 21 Reply to opposition to Motion, Notice of Corrected Docket Entry, 18 Memorandum in Opposition was entered in error per counsel and refiled as Docket Entry 23 . Docket Entry 19 was the corrected document, however, the wrong event was selected. (td, ) Modified on 8/23/2007 (nmw, ). [Transferred from District of Columbia on 6/2/2008.] (Entered: 08/22/2007)
24 NOTICE of Subtitution of Counsel by Kathryn L. Wyer on behalf of FEDERAL BUREAU OF PRISONS, HARLEY LAPPIN Substituting for attorney Karen L. Melnik (Wyer, Kathryn) [Transferred from District of Columbia on 6/2/2008.] (Entered: 08/23/2007)
25 Unopposed MOTION for Extension of Time to File Answer or Otherwise Plead by FEDERAL BUREAU OF PRISONS, HARLEY LAPPIN (Attachments: # 1 Text of Proposed Order)(Wyer, Kathryn) [Transferred from District of Columbia on 6/2/2008.] (Entered: 08/23/2007)
MINUTE ORDER granting 25 Unopposed Motion for Extension of Time. The federal defendants' response to the complaint is due on or before September 18, 2007. Signed by Judge Ricardo M. Urbina on 8/23/07. (lcrmu2) [Transferred from District of Columbia on 6/2/2008.] (Entered: 08/23/2007)
26 MOTION for Leave to File Surreply by CARL BUTLER, HAROLD ROBINSON, CHARLES LEWIS, JOHN DOE, JOHN ROE, JIMMIE FOWLER, KEITH MATHIS, REON HOLLOWAY, DAVID ROGERS, BENJAMIN HAMILTON (Attachments: # 1 Surreply# 2 Exhibit A to Exhibit declaration of Deborah Golden# 3 Exhibit Exhibit 2 Declaration of Deborah Golden# 4 Text of Proposed Order granting leave to file surreply)(Lange, Ivy) [Transferred from District of Columbia on 6/2/2008.] (Entered: 08/31/2007)
27 Memorandum in opposition to re 26 MOTION for Leave to File Surreply filed by GEO GROUP INC.. (Attachments: # 1 Text of Proposed Order Order)(Israel, Deborah) [Transferred from District of Columbia on 6/2/2008.] (Entered: 09/12/2007)
28 MOTION to Dismiss by FEDERAL BUREAU OF PRISONS, HARLEY LAPPIN (Attachments: # 1 Text of Proposed Order # 2 Exhibit 1 − Declaration of James R Schluter# 3 Exhibit 1 attachment − Document A# 4 Exhibit 1 attachment −Document B# 5 Exhibit 1 attachment − Document C# 6 Exhibit 1 attachment − Document D# 7 Exhibit 1 attachment − Document E# 8 Exhibit 1 attachment − Document F# 9 Exhibit 1 attachment − Document G# 10 Exhibit 1 attachment − Document H)(Wyer, Kathryn) [Transferred from District of Columbia on 6/2/2008.] (Entered: 09/18/2007)
29 MOTION (in the alternative) to Transfer Case by FEDERAL BUREAU OF PRISONS, HARLEY LAPPIN. (See Docket Entry 28 to view document). (nmw, ) [Transferred from District of Columbia on 6/2/2008.] (Entered: 09/19/2007)
30 Consent MOTION for Extension of Time to File Response/Reply as to 28 MOTION to Dismiss, 29 MOTION to Transfer Case by CARL BUTLER, HAROLD ROBINSON, CHARLES LEWIS, JOHN DOE, JOHN ROE, JIMMIE FOWLER, KEITH MATHIS, REON HOLLOWAY, DAVID ROGERS, BENJAMIN HAMILTON (Attachments: # 1 Text of Proposed Order)(Estrada, Danielle) [Transferred from District of Columbia on 6/2/2008.] (Entered: 09/24/2007)
MINUTE ORDER granting 30 Consent Motion for Extension of Time to File Response/Reply. It is hereby ORDERED that the plaintiffs' response to the federal defendants' motion to dismiss is due on or before October 26, 2007. Signed by Judge Ricardo M. Urbina on 9/25/07. (lcrmu2) [Transferred from District of Columbia on 6/2/2008.] (Entered: 09/25/2007)
31 MOTION to Certify Class by CARL BUTLER, HAROLD ROBINSON, CHARLES LEWIS, JOHN DOE, JOHN ROE, JIMMIE FOWLER, KEITH MATHIS, REON HOLLOWAY, DAVID ROGERS, BENJAMIN HAMILTON (Attachments: # 1 Memorandum of Points and Authorities in Support of Motion for Class Certification# 2 Text of Proposed Order)(Estrada, Danielle) [Transferred from District of Columbia on 6/2/2008.] Modified on 11/10/2008 to show as pending motion(McDowell, G.). (Entered: 09/25/2007)

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10/04/2007 10/05/2007 10/05/2007 10/05/2007 10/05/2007 10/26/2007
10/29/2007 10/30/2007 11/02/2007 11/02/2007 11/06/2007
11/06/2007

32 Unopposed MOTION for Extension of Time to File Response/Reply as to 31 MOTION to Certify Class by FEDERAL BUREAU OF PRISONS, HARLEY LAPPIN (Attachments: # 1 Text of Proposed Order)(Wyer, Kathryn) [Transferred from District of Columbia on 6/2/2008.] (Entered: 10/04/2007)
MINUTE ORDER granting 32 the Federal Defendants' Unopposed Motion for Extension of Time to File Response/Reply. It is hereby ordered that the Federal Defendants' response to the plaintiffs' motion for class certification is due on or before November 2, 2007. Signed by Judge Ricardo M. Urbina on 10/5/07. (lcrmu2) [Transferred from District of Columbia on 6/2/2008.] (Entered: 10/05/2007)
Set/Reset Deadlines: Response to motion for class certification due by 11/2/2007 (mpt, ) [Transferred from District of Columbia on 6/2/2008.] (Entered: 10/05/2007)
33 Unopposed MOTION for Extension of Time to File Response/Reply as to 31 MOTION to Certify Class by GEO GROUP INC. (Attachments: # 1 Text of Proposed Order Order)(Israel, Deborah) [Transferred from District of Columbia on 6/2/2008.] (Entered: 10/05/2007)
MINUTE ORDER granting 33 the Defendant's Unopposed Motion for Extension of Time to File Response/Reply. It is hereby ordered that GEO Group's response to the plaintiffs' motion for class certification is due on or before November 2, 2007. Signed by Judge Ricardo M. Urbina on 10/5/07. (lcrmu2) [Transferred from District of Columbia on 6/2/2008.] (Entered: 10/05/2007)
34 Memorandum in opposition to re 28 MOTION to Dismiss, 29 MOTION to Transfer Case filed by CARL BUTLER, HAROLD ROBINSON, CHARLES LEWIS, JOHN DOE, JOHN ROE, JIMMIE FOWLER, KEITH MATHIS, REON HOLLOWAY, DAVID ROGERS, BENJAMIN HAMILTON. (Attachments: # 1 Text of Proposed Order # 2 Exhibit Unpublished Decisions)(Estrada, Danielle) [Transferred from District of Columbia on 6/2/2008.] (Entered: 10/26/2007)
35 Consent MOTION for Extension of Time to File Response/Reply as to 28 MOTION to Dismiss, 29 MOTION to Transfer Case by FEDERAL BUREAU OF PRISONS, HARLEY LAPPIN (Attachments: # 1 Text of Proposed Order)(Wyer, Kathryn) [Transferred from District of Columbia on 6/2/2008.] (Entered: 10/29/2007)
MINUTE ORDER granting 35 the Federal Defendants' Consent Motion for Extension of Time to File Response/Reply. It is hereby ordered that the Federal Defendants' Reply to the Plaintiffs' Opposition to the Federal Defendants' Motion to Dismiss is due on or before December 3, 2007. Signed by Judge Ricardo M. Urbina on 10/30/07. (lcrmu2) [Transferred from District of Columbia on 6/2/2008.] (Entered: 10/30/2007)
36 Memorandum in opposition to re 31 MOTION to Certify Class filed by GEO GROUP INC.. (Attachments: # 1 Exhibit 1 − Brown v. Artery# 2 Exhibit 2 − Clark v. State of California# 3 Exhibit 3 − Maydak v. US of America# 4 Exhibit 4 − Williams v. Glickman# 5 Text of Proposed Order)(Israel, Deborah) Modified on 11/5/2007 (nmw, ). [Transferred from District of Columbia on 6/2/2008.] (Entered: 11/02/2007)
37 Memorandum in opposition to re 31 MOTION to Certify Class filed by FEDERAL BUREAU OF PRISONS, HARLEY LAPPIN. (Attachments: # 1 Text of Proposed Order)(Wyer, Kathryn) [Transferred from District of Columbia on 6/2/2008.] (Entered: 11/02/2007)
38 Unopposed MOTION for Extension of Time to File Response/Reply as to 31 MOTION to Certify Class by CARL BUTLER, HAROLD ROBINSON, CHARLES LEWIS, JOHN DOE, JOHN ROE, JIMMIE FOWLER, KEITH MATHIS, REON HOLLOWAY, DAVID ROGERS, BENJAMIN HAMILTON (Attachments: # 1 Text of Proposed Order)(Estrada, Danielle) [Transferred from District of Columbia on 6/2/2008.] (Entered: 11/06/2007)
MINUTE ORDER granting 38 Unopposed Motion for Extension of Time to File Response/Reply. It is hereby ordered that the plaintiffs' reply to the defendants' opposition to class certification is due on or before Friday, November 30, 2007. Signed by Judge Ricardo M. Urbina on 11/6/07. (lcrmu2) [Transferred from District of Columbia on 6/2/2008.] (Entered: 11/06/2007)

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11/30/2007
12/03/2007
02/28/2008
02/28/2008 03/25/2008 05/28/2008 06/13/2008 06/19/2008 09/08/2008 09/08/2008 10/07/2008 10/07/2008 10/24/2008 10/27/2008 10/27/2008 10/27/2008 10/27/2008

39 REPLY to opposition to motion re 31 MOTION to Certify Class filed by CARL BUTLER, HAROLD ROBINSON, JOHN DOE, JOHN ROE, JIMMIE FOWLER, KEITH MATHIS, REON HOLLOWAY, DAVID ROGERS, BENJAMIN HAMILTON. (Attachments: # 1 Exhibit 1 Declaration of Danielle Estrada# 2 Exhibit A to Declaration of Danielle Estrada# 3 Exhibit B to Declaration of Danielle Estrada# 4 Exhibit 2 Unpublished Decisions# 5 Exhibit 3 Unpublished Decisions)(Estrada, Danielle) [Transferred from District of Columbia on 6/2/2008.] (Entered: 11/30/2007)
40 REPLY to opposition to motion re 28 MOTION to Dismiss, 29 MOTION to Transfer Case filed by FEDERAL BUREAU OF PRISONS, HARLEY LAPPIN. (Attachments: # 1 Exhibit A − Contract)(Wyer, Kathryn) [Transferred from District of Columbia on 6/2/2008.] (Entered: 12/03/2007)
41 MINUTE ORDER granting 5 , 29 the Defendants' Motion to Transfer Case. It is hereby ORDERED that the defendants' motion to transfer the case to the Eastern District of North Carolina is GRANTED. SO ORDERED. Signed by Judge Ricardo M. Urbina on 2/28/08. (lcrmu2) [Transferred from District of Columbia on 6/2/2008.] (Entered: 02/28/2008)
42 MEMORANDUM OPINION. Signed by Judge Ricardo M. Urbina on 2/28/08. (lcrmu2) [Transferred from District of Columbia on 6/2/2008.] (Entered: 02/28/2008)
Case transferred out to the USDC for the Eastern District of North Carolina, pursuant to Court Order entered 2/28/08. Sent to Court by electronically. (jf) [Transferred from District of Columbia on 6/2/2008.] (Entered: 03/25/2008)
43 Case transferred in from District of District of Columbia; Case Number 1:07−cv−01155. Case received in EDNC via inter−district transfer on 5/28/2008. (Deputy Clerk − LC, ) (Entered: 06/02/2008)
44 NOTICE of Appearance by Neil A. Riemann on behalf of all plaintiffs (Riemann, Neil) (Entered: 06/13/2008)
45 NOTICE of Appearance by R. A. Renfer, Jr on behalf of Federal Bureau of Prisons, Harley Lappin (Renfer, R.) (Entered: 06/19/2008)
46 NOTICE of Appearance for non−district counsel Danielle M. Estrada Filed by local counsel Danielle M. Estrada on behalf of all plaintiffs (Estrada, Danielle) (Entered: 09/08/2008)
47 NOTICE of Appearance for non−district counsel Anthony Herman Filed by local counsel Anthony Herman on behalf of all plaintiffs (Herman, Anthony) (Entered: 09/08/2008)
48 MOTION to Dismiss Pursuant to Rule 4(m) by GEO GROUP INC.. (Numbers, Robert) (Entered: 10/07/2008)
49 Memorandum in Support re 48 MOTION to Dismiss Pursuant to Rule 4(m) by GEO GROUP INC.. (Numbers, Robert) (Entered: 10/07/2008)
50 AMENDED COMPLAINT against all defendants, filed by Michael Collins, Louis Calland, JOHN ROE. (Attachments: # 1 Exhibit A − 1 of 3, # 2 Exhibit A − 2 of 3, # 3 Exhibit A − 3 of 3) (Riemann, Neil) (Entered: 10/24/2008)
51 NOTICE by JOHN ROE, Michael Collins, Louis Calland of submittal of summonses for issuance (GEO in main doc, others in exhibits) (Attachments: # 1 Exhibit FBP Summons, # 2 Exhibit Lappin Summons) (Riemann, Neil) (Entered: 10/27/2008)
52 Summons Issued as to GEO GROUP INC., Federal Bureau of Prisons and Harley Lappin. (Heath, D.) (Entered: 10/27/2008)
53 Memorandum in Opposition re 48 MOTION to Dismiss Pursuant to Rule 4(m) filed by Michael Collins, Louis Calland, John Roe. (Riemann, Neil) (Entered: 10/27/2008)
54 Memorandum in Opposition re 53 Memorandum in Opposition, 48 MOTION to Dismiss Pursuant to Rule 4(m) * CORRECTED * filed by Michael Collins, Louis Calland, John Roe. (Riemann, Neil) (Entered: 10/27/2008)

Case: 2:08-ct-21 As of: 02/14/2020 07:14 PM EST 12 of 22

11/07/2008
11/07/2008 11/10/2008 11/10/2008 11/12/2008 11/17/2008 11/18/2008 12/08/2008
12/12/2008
01/05/2009 01/05/2009 01/05/2009 01/05/2009
01/05/2009 01/05/2009 01/12/2009
01/13/2009

Since the alleged claims in this action are claims that involve prisoner civil rights, the Prisoner Litigation Section in Raleigh has been reassigned to handle this action. Any questions should be directed this Section in Raleigh. (McDowell, G.) (Entered: 11/07/2008)
55 Consent MOTION for Extension of Time to File Answer re 50 Amended Complaint or Otherwise Respond by Federal Bureau of Prisons, Harley Lappin. (Attachments: # 1 Text of Proposed Order) (Wyer, Kathryn) (Entered: 11/07/2008)
Motions Submitted to Staff Attorney: 31 , 48 MOTION to Dismiss Pursuant to Rule 4(m), 55 Consent MOTION for Extension of Time to File Answer re 50 Amended Complaint or Otherwise Respond (McDowell, G.) (Entered: 11/10/2008)
56 Memorandum in Support (Reply Brief in Support of Motion to Dismiss Pursuant to Rule 4(m) filed by GEO GROUP INC.. (Numbers, Robert) (Entered: 11/10/2008)
57 SUMMONS Returned Executed by Michael Collins, Louis Calland, John Roe. GEO GROUP INC. served on 10/31/2008, answer due 11/20/2008. (Riemann, Neil) (Entered: 11/12/2008)
58 MOTION for Extension of Time to File Answer re 50 Amended Complaint by GEO GROUP INC.. (Attachments: # 1 Proposed Order to Defendant GEO's Motion for Extension of Time) (Numbers, Robert) (Entered: 11/17/2008)
Motions Submitted to Staff Attorney re: 58 MOTION for Extension of Time to File Answer re 50 Amended Complaint (Indig, A.) (Entered: 11/18/2008)
59 ORDER granting 55 Motion for Extension of Time to Answer GEO GROUP INC. answer due 1/5/2009; Federal Bureau of Prisons answer due 1/5/2009; Harley Lappin answer due 1/5/2009.; granting 58 Motion for Extension of Time to Answer GEO GROUP INC. answer due 1/5/2009; Federal Bureau of Prisons answer due 1/5/2009; Harley Lappin answer due 1/5/2009.. Signed by Senior Judge Malcolm J. Howard on 12/8/2008. (McDowell, G.) (Entered: 12/08/2008)
60 ORDER − Accordingly, the Clerk is DIRECTED to change the number in the above−captioned case from No. 2:08−CV−21−H to No. 2:08−CT−21−H, to properly reflect that it is a prisoner filing. It is ORDERED that all future fillings shall be filed under the latter case number. Signed by Senior Judge Malcolm J. Howard on 12/12/2008. (McDowell, G.) (Entered: 12/12/2008)
61 NOTICE of Appearance by W. Ellis Boyle on behalf of GEO GROUP INC. (Boyle, W.) (Entered: 01/05/2009)
62 MOTION to Strike 50 Amended Complaint by GEO GROUP INC.. (Numbers, Robert) (Entered: 01/05/2009)
63 Memorandum in Support re 62 MOTION to Strike 50 Amended Complaint filed by GEO GROUP INC.. (Numbers, Robert) (Entered: 01/05/2009)
64 MOTION to Dismiss by Federal Bureau of Prisons, Harley Lappin. (Attachments: # 1 Memorandum in Support, # 2 Declaration of Lynnell Cox, # 3 Cuco v Federal Medical Center (unpublished), # 4 Matthews v Town of Greeneville (unpublished), # 5 Rashad v Doughty (unpublished), # 6 William G v Pataki (unpublished), # 7 Text of Proposed Order) (Wyer, Kathryn) (Entered: 01/05/2009)
65 MOTION to Dismiss by GEO GROUP INC.. (Numbers, Robert) (Entered: 01/05/2009)
66 Memorandum in Support re 65 MOTION to Dismiss by GEO GROUP INC.. (Attachments: # 1 Attachment 1 − Order dated December 23, 2008) (Numbers, Robert) (Entered: 01/05/2009)
67 Consent MOTION for Extension of Time to File Response/Reply as to 62 MOTION to Strike 50 Amended Complaint, 64 MOTION to Dismiss, 65 MOTION to Dismiss by Michael Collins, Louis Calland, John Roe. (Attachments: # 1 Text of Proposed Order Proposed Order) (Riemann, Neil) (Entered: 01/12/2009)
68 ORDER granting 67 Motion for Extension of Time to File Response/Reply re 65 MOTION to Dismiss, 62 MOTION to Strike 50 Amended Complaint, 64 MOTION to

Case: 2:08-ct-21 As of: 02/14/2020 07:14 PM EST 13 of 22

02/16/2009 02/26/2009
02/26/2009 02/26/2009 03/03/2009 03/04/2009 03/04/2009 03/09/2009 03/09/2009 03/10/2009
03/10/2009 04/02/2009 04/02/2009 04/06/2009 04/14/2009
04/14/2009 04/15/2009

Dismiss − Responses due by 2/26/2009. Signed by Clerk of Court on 1/13/2009. (Indig, A.) (Entered: 01/13/2009)
69 NOTICE by GEO GROUP INC. OF SUBSEQUENTLY DECIDED AUTHORITY (Attachments: # 1 Exhibit A − Order in Vidal−Oporto v. Lappin) (Numbers, Robert) (Entered: 02/16/2009)
70 Consent MOTION for Leave to File Excess Pages for Plaintiffs' Consolidated Memorandum in Opposition to Defendants' Separate Motions to Dismiss by Michael Collins, Louis Calland, John Roe. (Attachments: # 1 Text of Proposed Order on Motion to Exceed Page Limit) (Riemann, Neil) (Entered: 02/26/2009)
71 Memorandum in Opposition re 62 MOTION to Strike 50 Amended Complaint filed by Michael Collins, Louis Calland, John Roe. (Riemann, Neil) (Entered: 02/26/2009)
72 Memorandum in Opposition re 64 MOTION to Dismiss, 65 MOTION to Dismiss filed by Michael Collins, Louis Calland, John Roe. (Riemann, Neil) (Entered: 02/26/2009)
73 ORDER granting 70 Motion for Leave to File Excess Pages. Signed by Senior Judge Malcolm J. Howard on 3/3/2009. (McDowell, G.) (Entered: 03/03/2009)
74 NOTICE of Appearance for non−district by Deborah M. Golden on behalf of all plaintiffs (Golden, Deborah) (Entered: 03/04/2009)
75 NOTICE of Appearance for non−district by Philip J. Fornaci on behalf of all plaintiffs (Fornaci, Philip) (Entered: 03/04/2009)
76 MOTION for Extension of Time to File Response/Reply as to 72 Memorandum in Opposition, 71 Memorandum in Opposition by GEO GROUP INC.. (Attachments: # 1 Proposed Order) (Numbers, Robert) (Entered: 03/09/2009)
77 Consent MOTION for Extension of Time to File Response/Reply as to 64 MOTION to Dismiss by Harley Lappin. (Attachments: # 1 Text of Proposed Order) (Wyer, Kathryn) (Entered: 03/09/2009)
78 ORDER granting 76 Motion for Extension of Time to File Response/Reply to Plaintiffs' Memorandum of Points and Authorities in Opposition to GEO Group's Motion to Strike and Plaintiff's Consolidated Memorandum in Opposition to Defendants' Motion to Dismiss. Responses due by 4/2/2009. Signed by Clerk of Court on 3/10/2009. (Indig, A.) (Entered: 03/10/2009)
79 ORDER granting federal defendants' 77 Motion for Extension of Time to File Response/Reply in support of their motion to dismiss. Replies due by 4/6/2009. Signed by Clerk of Court on 3/10/2009. (Indig, A.) (Entered: 03/10/2009)
80 REPLY to Response to Motion re 65 MOTION to Dismiss filed by GEO GROUP INC.. (Attachments: # 1 Exhibit Unpublished Case − Phelps v. Hadden) (Numbers, Robert) (Entered: 04/02/2009)
81 REPLY to Response to Motion re 62 MOTION to Strike 50 Amended Complaint filed by GEO GROUP INC.. (Numbers, Robert) (Entered: 04/02/2009)
82 REPLY to Response to Motion re 64 MOTION to Dismiss filed by Federal Bureau of Prisons, Harley Lappin. (Attachments: # 1 Exhibit A − Declaration of Jearlean Marks) (Wyer, Kathryn) (Entered: 04/06/2009)
83 NOTICE by Federal Bureau of Prisons, Harley Lappin re 64 MOTION to Dismiss of Supplemental Authorities (Attachments: # 1 Exhibit A − Inko−Tariah Order, # 2 Exhibit B − Letter to Fourth Circuit in Brown v. Lamanna) (Wyer, Kathryn) (Entered: 04/14/2009)
84 NOTICE by Federal Bureau of Prisons, Harley Lappin re 83 Notice−(other) of Supplemental Authority (Attachments: # 1 Exhibit A − Order of April 14, 2009 in Brown v. Lamanna) (Wyer, Kathryn) (Entered: 04/14/2009)
Motions Submitted Staff Counsel: 31 Motion to Certify Class, 48 MOTION to Dismiss Pursuant to Rule 4(m), 62 MOTION to Strike 50 Amended Complaint, 65 MOTION to Dismiss, 64 MOTION to Dismiss (McDowell, G.) (Entered: 04/15/2009)

Case: 2:08-ct-21 As of: 02/14/2020 07:14 PM EST 14 of 22

04/24/2009 05/05/2009 07/22/2009 09/30/2009
09/30/2009 10/06/2009 10/06/2009 10/07/2009 10/08/2009
10/26/2009 11/02/2009 11/09/2009
11/10/2009 12/09/2009 12/15/2009 12/16/2009

85 Consent MOTION for Leave to File Supplemental Briefing on Class Certification by Michael Collins, Louis Calland, John Roe. (Attachments: # 1 Text of Proposed Order) (Riemann, Neil) (Entered: 04/24/2009)
86 ORDER granting 85 Motion to Set a Supplemental Briefing Schedule. Signed by Senior Judge Malcolm J. Howard on 5/5/2009. (McDowell, G.) (Entered: 05/05/2009)
87 ORDER REASSIGNING CASE. Case reassigned to Judge James C. Dever, III for all further proceedings. Senior Judge Malcolm J. Howard no longer assigned to case. Signed by Clerk of Court on 7/22/2009. (Indig, A.) (Entered: 07/22/2009)
88 ORDER denying as moot 48 Motion to Dismiss; denying 62 Motion to Strike; denying without prejudice the motion to certify class 31 . Plaintiffs Collins and Roe are dismissed as plaintiffs. Calland is the sole remaining plaintiff. The court will hold oral argument on the pending motions to dismiss for failure to state a claim [D.E. 64, 65] on Thursday, October 8, 2009, at 9:00 a.m. in Courtroom One at the Terry Sanford Federal Building, 310 New Bern Avenue, Raleigh, North Carolina. Signed by Judge James C. Dever, III on 9/30/2009. (Indig, A.) (Entered: 09/30/2009)
89 NOTICE of Hearing on Motion on 65 MOTION to Dismiss, 64 MOTION to Dismiss. Oral Argument set for 10/8/2009 09:00 AM in Raleigh − 7th Floor − Courtroom 1 before Judge James C. Dever III. (Indig, A.) (Additional attachment(s) added on 9/30/2009: # 1 CORRECTED NOTICE) (Indig, A.). (Entered: 09/30/2009)
90 NOTICE of Appearance for non−district by Donald J. Ridings on behalf of Louis Calland (Ridings, Donald) (Entered: 10/06/2009)
91 NOTICE by GEO GROUP INC. of Subsequently Decided Authority (Attachments: # 1 Exhibit A − Order in the Hines v. GEO case) (Numbers, Robert) (Entered: 10/06/2009)
92 NOTICE of Appearance for non−district by Laura E. Schattschneider on behalf of Louis Calland (Schattschneider, Laura) (Entered: 10/07/2009)
93 Minute Entry for proceedings held before Judge James C. Dever, III: Motions Hearing held on 10/8/2009 re 64 MOTION to Dismiss filed by Federal Bureau of Prisons, Harley Lappin, 48 MOTION to Dismiss Pursuant to Rule 4(m) filed by GEO GROUP INC., 65 MOTION to Dismiss filed by GEO GROUP INC. (Court Reporter Sharon Kroeger.) (McDowell, G.) (Entered: 10/08/2009)
94 NOTICE by Louis Calland (Letter from Ridings regarding pending motions) (Riemann, Neil) (Entered: 10/26/2009)
95 MOTION to Disallow re 94 Notice−(other) by Federal Bureau of Prisons, Harley Lappin. (Wyer, Kathryn) (Entered: 11/02/2009)
96 ORDER granting 64 Motion to Dismiss; granting 65 Motion to Dismiss. Further, in accordance with the request in plaintiff's brief in opposition to the motions to dismiss, the court grants plaintiff's request for leave to amend the claims found to be deficient. Plaintiff shall file his second amended complaint not later than December 9, 2009. Signed by Judge James C. Dever III on 11/9/2009. (Shannon, K.) (Entered: 11/09/2009)
97 ORDER denying 95 . The motion to disallow at D.E. 95 is denied as moot. Signed by Judge James C. Dever, III on 11/10/2009. (Hayes, Lyndsay) (Entered: 11/10/2009)
98 AMENDED COMPLAINT (SECOND) against all defendants, filed by Louis Calland. (Attachments: # 1 Exhibit A − Rivers Contract (1 of 3), # 2 Exhibit A − Rivers Contract (2 of 3), # 3 Exhibit A − Rivers Contract (3 of 3)) (Riemann, Neil) (Entered: 12/09/2009)
99 Consent MOTION for Extension of Time to File Answer re 98 Amended Complaint by Federal Bureau of Prisons, Harley Lappin. (Attachments: # 1 Text of Proposed Order) (Wyer, Kathryn) (Entered: 12/15/2009)
100 ORDER granting 99 Motion for Extension of Time to Answer Federal Bureau of Prisons answer due 1/22/2010; Harley Lappin answer due 1/22/2010. Signed by Judge James C. Dever, III on 12/16/2009. (Indig, A.) (Entered: 12/16/2009)

Case: 2:08-ct-21 As of: 02/14/2020 07:14 PM EST 15 of 22

12/21/2009 12/21/2009 01/22/2010 01/22/2010 01/22/2010 01/25/2010 01/31/2010
01/31/2010
01/31/2010 02/02/2010 02/02/2010 02/11/2010
02/11/2010

101 MOTION for Extension of Time to File Answer re 98 Amended Complaint by GEO GROUP INC.. (Attachments: # 1 Proposed Order) (Numbers, Robert) (Entered: 12/21/2009)
102 ORDER granting 101 Motion for Extension of Time to Answer GEO GROUP INC. answer due 1/22/2010. Signed by Judge James C. Dever, III on 12/21/2009. (Indig, A.) (Entered: 12/21/2009)
103 MOTION for Extension of Time to File Answer re 98 Amended Complaint (second request) by Federal Bureau of Prisons, Harley Lappin. (Attachments: # 1 Text of Proposed Order) (Wyer, Kathryn) (Entered: 01/22/2010)
104 MOTION to Dismiss Plaintiff's Second Amended Complaint by GEO GROUP INC.. (Numbers, Robert) (Entered: 01/22/2010)
105 Memorandum in Support re 104 MOTION to Dismiss Plaintiff's Second Amended Complaint filed by GEO GROUP INC.. (Numbers, Robert) (Entered: 01/22/2010)
106 ORDER granting 103 Motion for Extension of Time to Answer; Federal Bureau of Prisons answer due 2/2/2010; Harley Lappin answer due 2/2/2010. Signed by Judge James C. Dever, III on 1/22/2010. (McDowell, G.) (Entered: 01/25/2010)
109 OFFICIAL TRANSCRIPT of MOTIONS HEARING Proceedings held on 10/8/09, before Judge Dever. Court Reporter Sharon Kroger. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Please review Attorney obligations regarding the redaction of electronic transcripts of court proceedings available on the court's website.. Redaction Request due 2/23/2010. Redacted Transcript Deadline set for 3/5/2010. Release of Transcript Restriction set for 5/3/2010. (Steele, F.). (Entered: 02/02/2010)
NOTICE of Filing of Official Transcript 109 Transcript,,. The parties have seven calendar days from the filing of the transcript to file a Notice of Intent to Request Redaction. The parties must also serve a copy on the court reporter or transcriber. After filing the Notice of Intent to Request Redaction, a party must submit to the court reporter or transcriber, within 21 calendar days of the filing of the transcript, a written statement indicating where the personal data identifiers to be redacted appear in the transcript. (Steele, F.) (Entered: 02/02/2010)
NOTICE OF CORRECTION re: 109 Transcript,, Transcript does not include type of motion hearing on cover page − Court Reporter will resubmit a corrected transcript. (Steele, F.) (Entered: 02/02/2010)
107 MOTION to Dismiss by Federal Bureau of Prisons, Harley Lappin. (Attachments: # 1 Text of Proposed Order) (Wyer, Kathryn) (Entered: 02/02/2010)
108 Memorandum in Support re 107 MOTION to Dismiss by Federal Bureau of Prisons, Harley Lappin. (Attachments: # 1 Childers v Arpaio (slip opinion), # 2 Matthews v Town of Greeneville (unpublished)) (Wyer, Kathryn) (Entered: 02/02/2010)
110 CORRECTED TRANSCRIPT OFFICIAL TRANSCRIPT of HEARING ON MOTIONS TO DISMISS Proceedings held on 10/8/09, before Judge Dever. Court Reporter Sharon Kroeger. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Please review Attorney obligations regarding the redaction of electronic transcripts of court proceedings available on the court's website.. Redaction Request due 3/4/2010. Redacted Transcript Deadline set for 3/14/2010. Release of Transcript Restriction set for 5/12/2010. (Steele, F.) (Entered: 02/12/2010)
NOTICE of Filing of Official Transcript 110 Transcript,,,. The parties have seven calendar days from the filing of the transcript to file a Notice of Intent to Request Redaction. The parties must also serve a copy on the court reporter or transcriber. After filing the Notice of Intent to Request Redaction, a party must submit to the court reporter or transcriber, within 21 calendar days of the filing of the transcript, a written statement indicating where the personal data identifiers to be redacted appear in the transcript. (Steele, F.) (Entered: 02/12/2010)

Case: 2:08-ct-21 As of: 02/14/2020 07:14 PM EST 16 of 22

02/12/2010 02/12/2010 03/09/2010
03/10/2010 03/10/2010 03/23/2010 03/24/2010 04/09/2010 04/09/2010 04/16/2010 04/22/2010 06/22/2010 09/29/2010
10/21/2010 10/21/2010

111 Consent MOTION for Extension of Time to File Response/Reply as to 104 MOTION to Dismiss Plaintiff's Second Amended Complaint, 107 MOTION to Dismiss by Louis Calland. (Attachments: # 1 Text of Proposed Order Proposed Order) (Estrada, Danielle) (Entered: 02/12/2010)
112 ORDER granting 111 Motion for Extension of Time to File Response/Reply re 104 MOTION to Dismiss Plaintiff's Second Amended Complaint, 107 MOTION to Dismiss. Plaintiffs' responses due by 3/9/2010. Signed by Judge James C. Dever, III on 2/12/2010. (Indig, A.) (Entered: 02/12/2010)
113 Memorandum in Opposition re 104 MOTION to Dismiss Plaintiff's Second Amended Complaint, 107 MOTION to Dismiss filed by Louis Calland. (Attachments: # 1 Exhibit A − Transcript of Oral Argument Excerpts, # 2 Exhibit B − Senate Judiciary Report on Judicial Review, # 3 Ashann−Ra v United States, # 4 Matthews v Town of Greenville, # 5 Plata v Schwartzenegger, # 6 Thompson v HUD) (Riemann, Neil) (Entered: 03/09/2010)
114 MOTION to Amend/Correct 98 Amended Complaint and for leave to file Third Amended Complaint by Louis Calland. (Attachments: # 1 Exhibit A − Third Amended Complaint, # 2 Text of Proposed Order on motion for leave to file) (Riemann, Neil) (Entered: 03/10/2010)
115 Memorandum in Support re 114 MOTION to Amend/Correct 98 Amended Complaint and for leave to file Third Amended Complaint filed by Louis Calland. (Riemann, Neil) (Entered: 03/10/2010)
116 Consent MOTION for Extension of Time to File Response/Reply as to 114 MOTION to Amend/Correct 98 Amended Complaint and for leave to file Third Amended Complaint, 107 MOTION to Dismiss by Federal Bureau of Prisons, Harley Lappin. (Attachments: # 1 Text of Proposed Order) (Wyer, Kathryn) (Entered: 03/23/2010)
117 ORDER granting 116 Motion for Extension of Time to File Reply in support of their motion to dismiss and reply re 114 MOTION to Amend/Correct 98 Amended Complaint and for leave to file Third Amended Complaint. Replies due by 4/9/2010. Signed by Judge James C. Dever III on 3/24/2010. (Indig, A.) (Entered: 03/24/2010)
118 REPLY to Response to Motion re 107 MOTION to Dismiss filed by Federal Bureau of Prisons, Harley Lappin. (Wyer, Kathryn) (Entered: 04/09/2010)
119 Memorandum in Opposition re 114 MOTION to Amend/Correct 98 Amended Complaint and for leave to file Third Amended Complaint filed by Federal Bureau of Prisons, Harley Lappin. (Attachments: # 1 Text of Proposed Order) (Wyer, Kathryn) (Entered: 04/09/2010)
Motions Submitted to Staff Counsel III: 107 MOTION to Dismiss, 104 MOTION to Dismiss Plaintiff's Second Amended Complaint, 114 MOTION to Amend/Correct 98 Amended Complaint and for leave to file Third Amended Complaint. (McDowell, G.) (Entered: 04/16/2010)
120 REPLY to Response to Motion re 114 MOTION to Amend/Correct 98 Amended Complaint and for leave to file Third Amended Complaint to Add Gregory Terrell as Party Plaintiff filed by Louis Calland. (Riemann, Neil) (Entered: 04/22/2010)
121 NOTICE OF SUPPLEMENTAL AUTHORITY by Louis Calland re 104 MOTION to Dismiss Plaintiff's Second Amended Complaint. Attachments: #(1) Exhibit Pollard v GEO Group) (Riemann, Neil). (Entered: 06/22/2010)
122 ORDER granting 104 Motion to Dismiss and granting in part and denying in part 107 Motion to Dismiss. Counts Two through Four of the second amended complaint are DISMISSED. Granting 114 Motion to Amend. Plaintiff shall file his third amended complaint not later than October 25, 2010. Signed by Judge James C. Dever III on 9/29/2010. (Indig, A.) (Entered: 09/29/2010)
123 MOTION to Withdraw as Attorney (W. Ellis Boyle) by GEO GROUP INC. (Attachments: # 1 Proposed Order) (Numbers, Robert). (Entered: 10/21/2010)
124 ORDER granting 123 Motion to Withdraw as Attorney. Attorney W. Ellis Boyle terminated. Signed by Judge James C. Dever III on 10/21/2010. (Indig, A.) (Entered: 10/21/2010)

Case: 2:08-ct-21 As of: 02/14/2020 07:14 PM EST 17 of 22

10/25/2010 11/08/2010 11/09/2010 11/09/2010 11/11/2010 11/12/2010 11/29/2010 12/03/2010 12/03/2010 12/03/2010
12/07/2010 12/08/2010

125 AMENDED COMPLAINT (THIRD) against Federal Bureau of Prisons, GEO GROUP INC., Harley Lappin, filed by Louis Calland, Gregory Terrell. (Attachments: # 1 Exhibit A − Contract − 1 of 3, # 2 Exhibit A − Contract − 2 of 3, # 3 Exhibit A − Contract − 3 of 3) (Riemann, Neil) (Entered: 10/25/2010)
126 MOTION for Extension of Time to File Answer re 125 Amended Complaint, by GEO GROUP INC. (Attachments: # 1 Attachment 1 − Text of Proposed Order) (Numbers, Robert). (Entered: 11/08/2010)
Motion Submitted to Judge Dever re: 126 MOTION for Extension of Time to File Answer re 125 Amended Complaint. (Indig, A.) (Entered: 11/09/2010)
127 ORDER granting 126 Motion for Extension of Time to Answer. GEO GROUP INC. answer due 11/29/2010. Signed by Judge James C. Dever III on 11/9/2010. (Indig, A.) (Entered: 11/09/2010)
128 Consent MOTION for Extension of Time to File Answer re 125 Amended Complaint, by Federal Bureau of Prisons, Harley Lappin. (Attachments: # 1 Text of Proposed Order) (Wyer, Kathryn) (Entered: 11/11/2010)
129 ORDER granting 128 Motion for Extension of Time to Answer. Federal Bureau of Prisons answer due 12/3/2010; Harley Lappin answer due 12/3/2010. Signed by Judge James C. Dever III on 11/12/2010. (Indig, A.) (Entered: 11/12/2010)
130 MOTION to Dismiss Defendant GEO Group, Inc. (Unopposed) by GEO GROUP INC.. (Numbers, Robert) (Entered: 11/29/2010)
132 MOTION to Seal Document 131 PROPOSED SEALED EX PARTE Document, by Federal Bureau of Prisons, Harley Lappin. (Attachments: # 1 Text of Proposed Order) (Wyer, Kathryn) (Entered: 12/03/2010)
133 MOTION to Dismiss or, in the Alternative, for Summary Judgment by Federal Bureau of Prisons, Harley Lappin. (Attachments: # 1 Text of Proposed Order) (Wyer, Kathryn) (Entered: 12/03/2010)
134 Memorandum in Support re 133 MOTION to Dismiss or, in the Alternative, for Summary Judgment filed by Federal Bureau of Prisons, Harley Lappin. (Attachments: # 1 Index of Exhibits, # 2 Declaration of Thad Hubler, # 3 Exhibit A (Hubler) − Contracting Officer's Technical Representative Monthly Checklist (September 2010), # 4 Exhibit B (Hubler) − Bureau of Prisons, Administrative Remedy Procedure Technical Direction, # 5 Exhibit C (Hubler) − GEO Group Policy and Procedural Manual Policy Number 12.006, # 6 Exhibit D (Hubler) − Calland administrative complaint #1, # 7 Exhibit E (Hubler) − Calland administrative complaint #2, # 8 Exhibit F (Hubler) − Terrell administrative complaint, # 9 Declaration of Matthew D. Nace, # 10 Exhibit A (Nace) − Bureau of Prisons, Contract Facility Quality Assurance Plan, Q7700.07, # 11 Exhibit B (Nace) − Contract Facilty Monitoring Report (January 22, 2010), # 12 Exhibit C (Nace) − GEO Response (February 3, 2010), # 13 Exhibit D (Nace) − Follow−up Review (May 5, 2010), # 14 Exhibit E (Nace) − Contract Facility Monitoring Report (July 23, 2010), # 15 Exhibit F (Nace) − GEO Response (August 6, 2010), # 16 Exhibit G (Nace) − CFM Report (July 1, 2008), # 17 Exhibit H (Nace) − GEO Response (July 14, 2008), # 18 Exhibit I (Nace) − GEO Letter (August 25, 2008), # 19 Exhibit J (Nace) − Notice of Deduction (November 5, 2008), # 20 Exhibit K (Nace) − Calland Bureau of Prisons Administrative Remedy Procedure submissions, # 21 Exhibit L (Nace) − Terrell Bureau of Prisons Administrative Remedy Procedure submissions, # 22 Declaration of Dr. Daniel De Jesus, # 23 Exhibit A (De Jesus) − Jan 2010 Working Papers excerpt (part 1), # 24 Jan 2010 Working Papers excerpt (part 2), # 25 Exhibit B (De Jesus) − June 2010 Working Papers excerpt (part 1), # 26 June 2010 Working Papers excerpt (part 2), # 27 Exhibit C (De Jesus) − Grievances Working Paper (June 25, 2008), # 28 Exhibit E (De Jesus) − Grievances Working Paper (January 7, 2009), # 29 Unpublished Decisions) (Wyer, Kathryn). (Entered: 12/03/2010)
Motions Submitted to Staff Counsel III re: 130 MOTION to Dismiss Defendant GEO Group, Inc. (Unopposed), 132 MOTION to Seal Document 131 PROPOSED SEALED EX PARTE Document. (Indig, A.) (Entered: 12/07/2010)
NOTICE TO COUNSEL re: 134 Memorandum in Support: When describing attachments or exhibits spell out all words. Do not abbreviate. Clerk has corrected

Case: 2:08-ct-21 As of: 02/14/2020 07:14 PM EST 18 of 22

12/21/2010 12/22/2010 12/28/2010 02/02/2011 02/02/2011 02/02/2011 02/02/2011
02/02/2011 02/03/2011 02/16/2011

entry so no need to refile this time. (Lee, B.) (Entered: 12/08/2010)
135 Consent MOTION for Extension of Time to File Response/Reply as to 134 Memorandum in Support by Louis Calland, Gregory Terrell. (Attachments: # 1 Text of Proposed Order Granting Motion to Extend Time) (Riemann, Neil). (Entered: 12/21/2010)
Motion Submitted to Staff Counsel III: 135 Consent MOTION for Extension of Time to File Response/Reply as to 134 Memorandum in Support AND Motion to Seal. (McDowell, G.). (Entered: 12/22/2010)
136 ORDER granting 135 Motion for Extension of Time to File Response re 132 MOTION to Seal Document 131 PROPOSED SEALED EX PARTE Document, 133 MOTION to Dismiss or, in the Alternative, for Summary Judgment. Responses due by 2/2/2011. Signed by Judge James C. Dever, III on 12/28/2010. (Taylor, B.) (Entered: 12/28/2010)
137 MOTION for Discovery (for Entry of a Scheduling Order or, in the Alternative, a Scheduling Conference by Louis Calland, Gregory Terrell. (Attachments: # 1 Exhibit Memorandum in Support, # 2 Exhibit A − October 25, 2010 Letter from Ridings to Wyer, # 3 Exhibit B − November 11, 2010 Email from Ridings to Wyer, # 4 Text of Proposed Order on Motion) (Riemann, Neil) (Entered: 02/02/2011)
138 RESPONSE to Motion re 132 MOTION to Seal Document 131 PROPOSED SEALED EX PARTE Document, filed by Louis Calland, Gregory Terrell. (Attachments: # 1 Text of Proposed Order Granting Motion for Leave to File Under Seal, # 2 Appendix of Unpublished Decisions) (Riemann, Neil) (Entered: 02/02/2011)
139 MOTION Denial Without Prejudice of or Continuance to respond to Federal Defendants' Motion for Summary Judgment (pursuant to Rule 56(d)) re 133 MOTION to Dismiss or, in the Alternative, for Summary Judgment by Louis Calland, Gregory Terrell. (Riemann, Neil) (Entered: 02/02/2011)
140 Memorandum in Support re 139 MOTION Denial Without Prejudice of or Continuance to respond to Federal Defendants' Motion for Summary Judgment (pursuant to Rule 56(d)) re 133 MOTION to Dismiss or, in the Alternative, for Summary Judgment MOTION Denial Without Prejudice of or Continuance to respond to Federal Defendants' Motion for Summary Judgment (pursuant to Rule 56(d)) re 133 MOTION to Dismiss or, in the Alternative, for Summary Judgment filed by Louis Calland, Gregory Terrell. (Attachments: # 1 Index for Appendix of Exhibits, # 2 Exhibit A − Letters from D. Ridings re: Request for Medical and Grievance Records (dated Jan. 25, 2008), # 3 Exhibit B − Letter from R. Numbers re: Request for Medical and Grievance Records (dated Apr. 2, 2008), # 4 Exhibit C − Letter from M. Fuseymore in response to June 25, 2008 letter (dated July 16, 2008)D. Letter from M. Fuseymore in response to Nov. 7, 2008 letter (dated Dec., 8, 2008), # 5 Exhibit D − Letter from M. Fuseymore in response to Nov. 7, 2008 letter (dated Dec., 8, 2008), # 6 Exhibit E − Letter from D. Ridings re: Third Amended Complaint (dated Oct. 25, 2010), # 7 Exhibit F − Email chain re: Rivers Litigation (dated Nov. 11, 2010), # 8 Exhibit G − Plaintiffs First Set of Interrogatories to Defendants (dated Feb. 2, 2011), # 9 Exhibit H − Plaintiffs First Request for Production of Documents (dated Feb. 2, 2011), # 10 Affidavit Declaration of Danielle Estrada, # 11 Appendix of Unpublished Decisions, # 12 Text of Proposed Order) (Riemann, Neil) (Entered: 02/02/2011)
141 RESPONSE in Opposition re 133 MOTION to Dismiss or, in the Alternative, for Summary Judgment filed by Louis Calland, Gregory Terrell. (Attachments: # 1 Exhibit Statement of Disputed Material Facts, # 2 Affidavit Terrell Declaration, # 3 Affidavit Calland Declaration, # 4 Appendix of Unpublished Decisions, # 5 Text of Proposed Order) (Riemann, Neil) (Entered: 02/02/2011)
142 NOTICE by Louis Calland, Gregory Terrell of Attempted Conference with Federal Defendants Regarding Motion for Entry of a Scheduling Order, or, in the Alternative, a Scheduling Conference (Schattschneider, Laura) (Entered: 02/03/2011)
143 MOTION for Extension of Time to File Response/Reply (Unopposed) to [DE132, 133, 137 and 139] by Federal Bureau of Prisons, Harley Lappin. (Attachments: # 1 Text of Proposed Order) (Wyer, Kathryn) (Entered: 02/16/2011)

Case: 2:08-ct-21 As of: 02/14/2020 07:14 PM EST 19 of 22

02/17/2011 03/15/2011 03/15/2011 03/15/2011 03/15/2011 03/15/2011 03/16/2011
03/29/2011
03/31/2011
04/04/2011
04/08/2011 04/08/2011

144 ORDER granting 143 Motion for Extension of Time to File Responses. Responses due by 3/15/2011. Signed by Judge James C. Dever III on 2/17/2011. (Indig, A.) (Entered: 02/17/2011)
145 REPLY to Response to Motion re 133 MOTION to Dismiss or, in the Alternative, for Summary Judgment filed by Federal Bureau of Prisons, Harley Lappin. (Attachments: # 1 Response to Plaintiffs' Statement of Disputed Facts and Counterstatement of Undisputed Material Facts, # 2 Unpublished decisions) (Wyer, Kathryn) (Entered: 03/15/2011)
146 MOTION to Strike Jury Demand in Plaintiffs' Third Amended Complaint by Federal Bureau of Prisons, Harley Lappin. (Attachments: # 1 Memorandum in Support, # 2 Text of Proposed Order) (Wyer, Kathryn) (Entered: 03/15/2011)
147 Consent MOTION for Leave to File Excess Pages by Federal Bureau of Prisons, Harley Lappin. (Attachments: # 1 Text of Proposed Order) (Wyer, Kathryn) (Entered: 03/15/2011)
148 Memorandum in Opposition (Consolidated) to Plaintiffs' Motion for Discovery (docket entry 137) and Rule 56(d) motion (docket entry 139) filed by Federal Bureau of Prisons, Harley Lappin. (Attachments: # 1 Text of Proposed Order − Plaintiffs' Motion for Discovery (docket entry 137), # 2 Text of Proposed Order − Plaintiffs' Rule 56(d) motion, # 3 Unpublished decisions) (Wyer, Kathryn) (Entered: 03/15/2011)
149 REPLY to Response to Motion re 132 MOTION to Seal Document 131 PROPOSED SEALED EX PARTE Document, filed by Federal Bureau of Prisons, Harley Lappin. (Wyer, Kathryn) (Entered: 03/15/2011)
150 Memorandum in Opposition (Consolidated) (Corrected to add Tables of Contents and Authorities) to Plaintiffs' Motions filed at docket entries 137 and 139 filed by Federal Bureau of Prisons, Harley Lappin. (Attachments: # 1 Text of Proposed Order − Plaintiffs' Motion for Discovery (docket entry 137), # 2 Text of Proposed Order − Plaintiffs' Rule 56(d) motion (docket entry 139), # 3 Unpublished decisions) (Wyer, Kathryn) (Entered: 03/16/2011)
151 MOTION for Extension of Time to File Reply as to 139 MOTION Denial Without Prejudice of or Continuance to respond to Federal Defendants' Motion for Summary Judgment (pursuant to Rule 56(d)) re 133 MOTION to Dismiss or, in the Alternative, for Summary Judgment MOTION Denial Without Prejudice of or Continuance to respond to Federal Defendants' Motion for Summary Judgment (pursuant to Rule 56(d)) re 133 MOTION to Dismiss or, in the Alternative, for Summary Judgment by Louis Calland, Gregory Terrell. (Attachments: # 1 Text of Proposed Order) (Riemann, Neil) (Entered: 03/29/2011)
Motions Submitted to Staff Counsel III re: 130 MOTION to Dismiss Defendant GEO Group, Inc. (Unopposed) by GEO GROUP INC., 132 MOTION to Seal Document 131 PROPOSED SEALED EX PARTE Document, by Federal Bureau of Prisons, Harley Lappin, 137 MOTION for Discovery (for Entry of a Scheduling Order or, in the Alternative, a Scheduling Conference by Louis Calland, Gregory Terrell, 147 Consent MOTION for Leave to File Excess Pages by Federal Bureau of Prisons, Harley Lappin, 151 MOTION for Extension of Time to File Reply. (Taylor, B.) (Entered: 03/31/2011)
152 ORDER − granting 147 Motion for Leave to File Excess Pages and granting 151 Motion for Extension of Time to File Reply re 139 MOTION Denial Without Prejudice of or Continuance to respond to Federal Defendants' Motion for Summary Judgment (pursuant to Rule 56(d)). Plaintiff's shall have until 4/11/2011 to file their reply. Signed by District Judge James C. Dever III on 4/4/2011. (Indig, A.) (Entered: 04/04/2011)
153 RESPONSE to Motion re 146 MOTION to Strike Jury Demand in Plaintiffs' Third Amended Complaint filed by Louis Calland, Gregory Terrell. (Riemann, Neil) (Entered: 04/08/2011)
Motion Submitted to Staff Counsel III: 146 MOTION to Strike Jury Demand in Plaintiffs' Third Amended Complaint. (King, K.) (Entered: 04/08/2011)

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04/11/2011
07/18/2011
07/29/2011 07/29/2011 08/10/2011 08/11/2011 08/11/2011
08/23/2011 08/23/2011 08/23/2011 09/01/2011
09/16/2011 09/16/2011

154 REPLY to Response to Motion re 139 MOTION Denial Without Prejudice of or Continuance to respond to Federal Defendants' Motion for Summary Judgment (pursuant to Rule 56(d)) re 133 MOTION to Dismiss or, in the Alternative, for Summary Judgment MOTION Denial Without Prejudice of or Continuance to respond to Federal Defendants' Motion for Summary Judgment (pursuant to Rule 56(d)) re 133 MOTION to Dismiss or, in the Alternative, for Summary Judgment filed by Louis Calland, Gregory Terrell. (Riemann, Neil) (Entered: 04/11/2011)
155 ORDER granting 130 Motion to Dismiss; granting in part and denying in part without prejudice 133 Motion to Dismiss; granting in part and denying in part 132 Motion to Seal Document − the court directs the clerk to maintain under seal (rather than ex parte) only Exhibits D and E to the declaration of Dr. Daniel De Jesus; granting 137 Motion for Discovery; granting 139 Motion Denial Without Prejudice of or Continuance to respond to Federal Defendants' Motion for Summary Judgment (pursuant to Rule 56(d)); granting 146 Motion to Strike. Counts two through four of the third amended complaint are dismissed. Signed by District Judge James C. Dever, III on 7/18/2011. (McDowell, G.) (Entered: 07/18/2011)
156 REPORT of Rule 26(f) Planning Meeting by Louis Calland, Gregory Terrell. (Estrada, Danielle) (Entered: 07/29/2011)
157 Rule 26(f) Report (individual) by Federal Bureau of Prisons, Harley Lappin. (Wyer, Kathryn) (Entered: 07/29/2011)
158 NOTICE of Appearance for non−district by Sarah M. Hall on behalf of Gregory Terrell. (Hall, Sarah) (Entered: 08/10/2011)
159 Federal Defendants' MOTION for Partial Reconsideration of the Court's Order of July 18, 2011 re 155 Order by Federal Bureau of Prisons, Harley Lappin. (Attachment: # 1 Text of Proposed Order) (Wyer, Kathryn) Modified on 8/12/2011 to add title of pleading. (Taylor, B.). (Entered: 08/11/2011)
160 Memorandum in Support re 159 MOTION for Reconsideration re 155 Order on Motion to Dismiss, Order on Motion to Seal Document,, Order on Motion for Discovery, Order on Motion for Miscellaneous Relief, Order on Motion to Strike,,,,,,,,,,,, MOTION for Reconsideration re 155 Order on Motion to Dismiss, Order on Motion to Seal Document,, Order on Motion for Discovery, Order on Motion for Miscellaneous Relief, Order on Motion to Strike,,,,,,,,,,,, filed by Federal Bureau of Prisons, Harley Lappin. (Attachments: # 1 Flynn v Doyle (unpublished), # 2 In re Bayside Prison Litigation (unpublished), # 3 Jones v Goord (unpublished), # 4 Riggs v Valdez (unpublished), # 5 Turner v Grant County Detention Center (unpublished)) (Wyer, Kathryn) (Entered: 08/11/2011)
161 Second MOTION to Certify Class by Gregory Terrell. Responses due by 9/13/2011 (Riemann, Neil) (Entered: 08/23/2011)
162 Memorandum in Support re 161 Second MOTION to Certify Class filed by Gregory Terrell. (Attachments: # 1 Appendix of Unpublished Decisions) (Riemann, Neil) (Entered: 08/23/2011)
163 Proposed Order re 161 Second MOTION to Certify Class filed by Gregory Terrell. (Riemann, Neil) (Entered: 08/23/2011)
164 RESPONSE in Opposition re 159 MOTION for Reconsideration re 155 Order on Motion to Dismiss, Order on Motion to Seal Document, Order on Motion for Discovery, Order on Motion for Miscellaneous Relief, Order on Motion to Strike, MOTION for Reconsideration re 155 Order on Motion to Dismiss, Order on Motion to Seal Document, Order on Motion for Discovery, Order on Motion for Miscellaneous Relief, Order on Motion to Strike, filed by Gregory Terrell. (Attachments: # 1 Appendix of Unpublished Decisions) (Riemann, Neil) (Entered: 09/01/2011)
165 MOTION to Stay re 161 Second MOTION to Certify Class by Federal Bureau of Prisons, Harley Lappin. (Attachments: # 1 Text of Proposed Order) (Wyer, Kathryn) (Entered: 09/16/2011)
166 Memorandum in Support re 165 MOTION to Stay re 161 Second MOTION to Certify Class filed by Federal Bureau of Prisons, Harley Lappin. (Wyer, Kathryn) (Entered: 09/16/2011)

Case: 2:08-ct-21 As of: 02/14/2020 07:14 PM EST 21 of 22

09/19/2011 09/19/2011 09/19/2011
09/26/2011 09/26/2011 10/07/2011 10/24/2011 10/26/2011 10/26/2011 10/27/2011 10/27/2011 11/09/2011 01/09/2012
01/30/2012 02/06/2012 02/23/2012

167 MOTION to Dismiss for Lack of Jurisdiction Louis Calland as Plaintiff by Federal Bureau of Prisons and Harley Lappin. (Attachments: # 1 Text of Proposed Order) (Wyer, Kathryn) (Entered: 09/19/2011)
168 Memorandum in Support re 167 MOTION to Dismiss for Lack of Jurisdiction as to Louis Calland, Plaintiff filed by Federal Bureau of Prisons and Harley Lappin. (Attachments: # 1 Declaration of Lori A. Brown, # 2 Clark v. Keller (unpublished)) (Wyer, Kathryn) (Entered: 09/19/2011)
169 REPLY to Response to Motion re 159 MOTION for Reconsideration re 155 Order on Motion to Dismiss, Order on Motion to Seal Document, Order on Motion for Discovery, Order on Motion for Miscellaneous Relief, Order on Motion to Strike, MOTION for Reconsideration re 155 Order on Motion to Dismiss, Order on Motion to Seal Document, Order on Motion for Discovery, Order on Motion for Miscellaneous Relief, Order on Motion to Strike, filed by Federal Bureau of Prisons, Harley Lappin. (Attachments: # 1 Amador v. Andrews, # 2 Saint Annes Development Company v. Trabich (unpublished)) (Wyer, Kathryn) (Entered: 09/19/2011)
170 STIPULATION of Dismissal Without Prejudice of Louis Calland as Plaintiff by Federal Bureau of Prisons, Harley Lappin. (Wyer, Kathryn) (Entered: 09/26/2011)
171 ORDER − Louis Calland is hereby DISMISSED as a plaintiff to this action for lack of subject matter jurisdiction and DISMISSING as moot 167 Motion to Dismiss. Signed by District Judge James C. Dever III on 9/26/2011. (Indig, A.) (Entered: 09/26/2011)
172 RESPONSE to Motion re 165 MOTION to Stay re 161 Second MOTION to Certify Class filed by Gregory Terrell. (Riemann, Neil) (Entered: 10/07/2011)
173 REPLY to Response to Motion re 165 MOTION to Stay re 161 Second MOTION to Certify Class filed by Federal Bureau of Prisons, Harley Lappin. (Wyer, Kathryn) (Entered: 10/24/2011)
Motions Submitted to Staff Counsel III re: 161 Second MOTION to Certify Class, 165 MOTION to Stay re 161 Second MOTION to Certify Class and 159 MOTION for Reconsideration re 155 Order on Motion to Dismiss. (Indig, A.) (Entered: 10/26/2011)
174 MOTION to Withdraw as Attorney re Anthony Herman by Gregory Terrell. (Attachments: # 1 Text of Proposed Order) (Riemann, Neil) (Entered: 10/26/2011)
Motion Submitted to Staff Counsel III re: 174 MOTION to Withdraw as Attorney re Anthony Herman. (Blankenship, T.) (Entered: 10/27/2011)
175 ORDER − Granting 174 Motion to Withdraw as Attorney. Attorney Anthony Herman terminated. Signed by Chief Judge James C. Dever, III on 10/27/2011. (Indig, A.) (Entered: 10/27/2011)
176 NOTICE of Change of Address by Neil A. Riemann (Riemann, Neil) (Entered: 11/09/2011)
177 ORDER − denying 159 Motion for Reconsideration; granting 165 Motion to Stay and the Bureau of Prison defendants shall file their response to plaintiffs' motion for class certification not later than 1/30/2012. Plaintiffs' shall file any reply not later than 2/6/2012. The court hereby REFERS the parties' proposed discovery schedules to United States Magistrate Judge James E. Gates for entry of a scheduling order. Signed by Chief Judge James C. Dever III on 1/9/2012. (McDowell, G.) (Entered: 01/09/2012)
178 Memorandum in Opposition re 161 Second MOTION to Certify Class filed by Federal Bureau of Prisons, Harley Lappin. (Attachments: # 1 Text of Proposed Order, # 2 Appendix of cases with Westlaw citations) (Wyer, Kathryn) (Entered: 01/30/2012)
179 REPLY to Response to Motion re 161 Second MOTION to Certify Class filed by Gregory Terrell. (Attachments: # 1 Appendix of Unpublished Cases and Other Authority) (Riemann, Neil) (Entered: 02/06/2012)
180 ORDER − DENYING 161 Motion to Certify Class. The court requests that Magistrate Judge Gates hold a status conference and set a schedule to move Terrell's claim towards prompt resolution. Signed by Chief Judge James C. Dever III on 2/23/2012. (Indig, A.) (Entered: 02/23/2012)

Case: 2:08-ct-21 As of: 02/14/2020 07:14 PM EST 22 of 22

02/24/2012 02/28/2012 02/28/2012 02/29/2012 03/01/2012 03/01/2012
03/06/2012 03/06/2012 03/23/2012 03/26/2012

181 Order Setting Hearings − Status Conference set for 3/8/2012 at 3:30 PM in Raleigh − 6th Floor Courtroom before Magistrate Judge James E. Gates. Signed by Magistrate Judge James E. Gates on 2/24/2012. (Indig, A.) (Entered: 02/24/2012)
182 NOTICE by Gregory Terrell of Inmate Transfer. (Riemann, Neil) (Entered: 02/28/2012)
183 MOTION to Continue (Adjourn) Status Conference by Gregory Terrell. (Attachments: # 1 Text of Proposed Order) (Riemann, Neil) (Entered: 02/28/2012)
MOTION REFERRED to US Magistrate Judge James E. Gates re: 183 MOTION to Continue (Adjourn) Status Conference. (Blankenship, T.) (Entered: 02/29/2012)
184 MOTION to Dismiss for Lack of Jurisdiction by Federal Bureau of Prisons, Harley Lappin. (Attachments: # 1 Text of Proposed Order) (Wyer, Kathryn) (Entered: 03/01/2012)
185 Memorandum in Support re 184 MOTION to Dismiss for Lack of Jurisdiction filed by Federal Bureau of Prisons, Harley Lappin. (Attachments: # 1 Davis v. Broadwell (unpublished), # 2 Garcia v. Lane Bryant, Inc. (slip copy)) (Wyer, Kathryn) (Entered: 03/01/2012)
186 ORDER − granting 183 Motion to Continue the status conference. The status conference shall now be held on Thursday, 5 April 2012, at 2:00 p.m. Signed by US Magistrate Judge James E. Gates on 3/5/2012. (McDowell, G.) (Entered: 03/06/2012)
****Reset Hearings: Status Conference set for 4/5/2012 at 2:00 PM in Raleigh − 6th Floor Courtroom before US Magistrate Judge James E. Gates. (McDowell, G.) (Entered: 03/06/2012)
187 STIPULATION of Dismissal Without Prejudice by Federal Bureau of Prisons, Harley Lappin. (Wyer, Kathryn) (Entered: 03/23/2012)
188 ORDER − The court hereby DISMISSES WITHOUT PREJUDICE the above−captioned action and DENYING AS MOOT 184 Motion to Dismiss for Lack of Jurisdiction. The Clerk of Court shall close the case. Signed by Chief Judge James C. Dever III on 3/26/2012. (Indig, A.) (Entered: 03/26/2012)

 
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 IN THE UNITED STATES DISTRICT COURT
 FOR THE EASTERN DISTRICT OF NORTH CAROLINA

NORTHERN DNISION
 No. 2:08-CT-21-D


KEITH MATHIS, et aI.,1

)

)

Plaintiffs,

)

v.

)

)

GEO GROUP, INC., et aI.,

)

)


Defendants. )

ORDER


On July 22,2009, this case was reassigned from Judge Malcolm 1. Howard to Judge James

C. Dever III. Several motions are pending [D.E. 31,48,62,64,65].

GEO Group, Inc ("GEO") filed a motion to dismiss the complaint pursuant to Rule 4(m) of

the Federal Rules of Civil Procedure [D.E. 48]. Plaintiffs, however, filed a first amended complaint

on October 24,2008 [D.E. 50], obtained a summons [D.E. 51], and served GEO [D.E. 52]. Thus,

GEO's motion to dismiss the complaint [D.E. 48] is DENIED as moot.

OEO filed a motion to strike the amended complaint [D.E. 62]. The motion to strike [D.E.

62] lacks merit and is DENIED. See,~, United States ex reI. Precision Co. v. Koch Indus.. Inc.,

31 F.3d 1015, 1018-19 (lOth Cir. 1994).

Next, the court addresses whether Collins and Roe are proper plaintiffs in this action. The

Federal Bureau of Prisons ("BOP") and BOP Director Harry Lappin contend that plaintiffs Collins

and Roe have been released from incarceration at Rivers Correctional Institution ("Rivers") and that

their claims are moot. Moreover, plaintiffs Collins and Roe do not dispute that each has been

IOn October 24, 2008, plaintiffs amended their complaint [D.E. 50]. In addition to amendments to the claims, the pleading modified the named plaintiffs. Originally, Keith Mathis was the first-named plaintiff. Compi. -,r 10. As a result ofhis release from incarceration in March 2008, Mathis was terminated as a plaintiff in the amended complaint and added as an "other affected person/]" for purposes of attempted class certification. See Am. CompI. -,r 17.

Case 2:08-ct-00021-D Document 88 Filed 09/30/09 Page 1 of 2

released from Rivers. See PIs.' Mem. in Opp'n to Defs.' Mots. to Dismiss 13 n.l; see also Fed. Defs.' Mot. to Dismiss, Cox Decl. ~ 3. Indeed, on June 11,2009, Collins filed his own civil action seeking damages from OEO and others for medical malpractice while he was incarcerated at Rivers. See Petition for Removal, Attach. 4 (Comp!.), Collins v. OEO Group. Inc., No. 5:09-CT-3119-D (E.D.N.C. July 16,2009). In that civil action, Collins contends that he was released from Rivers in 2008. See id. ~ 1.
The court may take judicial notice that Collins and Roe have been released.2 In light oftheir release and that the first amended complaint seeks only injunctive and declaratory relief, the court concludes that their claims are moot. See,~, Rendelman v. Rouse, 569 F.3d 182, 186 (4th Cir. 2009). Accordingly, Collins and Roe are dismissed as plaintiffs. Calland is the sole remaining plaintiff.
Plaintiff filed a motion to certify class [D.E. 31]. The court DENIES without prejudice the motion to certify class [D.E. 31]. Depending on the outcome ofthe pending motions to dismiss for failure to state a claim [D.E. 64, 65], the court will pennit plaintiff Calland to renew the motion to certify class and set a briefmg schedule.
The court will hold oral argument on the pending motions to dismiss for failure to state a claim [D.E. 64, 65] on Thursday, October 8, 2009, at 9:00 a.m. in Courtroom One at the Terry Sanford Federal Building, 310 New Bern Avenue, Raleigh, North Carolina.
SO ORDERED. This..3Q day of September 2009.
~"'~YU JAES c. DEVER III
United States District Judge
2Because John Roe is a pseudonym, the court is unable to confinn independently from public records that he has been released from incarceration. The court accepts the parties' representations as true.
Case 2:08-ct-00021-D Document 88 Filed 09/30/09 Page 2 of 2

 
 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA

)

LOUIS CALLAND, currently incarcerated at

)

Rivers Correctional Institution

)

145 Parker’s Fishery Road

)

Winton, NC 27986, and

)

)

Individually and on behalf of all others similarly

)

situated,

)

)

Plaintiff,

)

)

v.

) Civ. No. 08-CT-00021-D

)

THE GEO GROUP, INC., a Florida for-profit

) SECOND AMENDED

corporation

) COMPLAINT

c/o Corporate Creations Network Inc.

)

15720 John J. Delaney Drive #300

) JURY TRIAL DEMANDED

Charlotte, NC 28277

)

)

UNITED STATES OF AMERICA, through its

)

department, the FEDERAL BUREAU OF PRISONS, )

320 First Street, N.W.

)

Washington, DC 20534

)

)

and

)

)

HARLEY LAPPIN, in his official capacity as Director )

of the United States Bureau of Prisons,

)

320 First Street, N.W.

)

Washington, DC 20534,

)

)

Defendants. )

)

Case 2:08-ct-00021-D Document 98 Filed 12/09/09 Page 1 of 44

SECOND AMENDED CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
PRELIMINARY STATEMENT 1. The Plaintiff brings this class action lawsuit to remedy the dangerous, grossly inadequate, and inhumane level of medical care at the Rivers Correctional Institution (“Rivers”), where the Plaintiff is serving a sentence. The system of delivering health care at Rivers has placed men at Rivers at substantial and ongoing risk of serious injury or premature death, and has caused permanent physical damage and profound mental and physical pain to Plaintiff and other persons incarcerated there. 2. Rivers is a private, for-profit correctional facility. It is owned and operated by Defendant THE GEO GROUP, INC. (“GEO”), a publicly-traded corporation. GEO houses prisoners at Rivers pursuant to a contract with Defendant the UNITED STATES OF AMERICA, through its department, the FEDERAL BUREAU OF PRISONS (“BOP”). 3. The health care system at the Rivers facility is broken. Medical professional staffing levels at Rivers are grossly inadequate. Defendants routinely refuse to provide prisoners at Rivers with treatment for their serious chronic medical conditions. When men arrive at Rivers, Defendants routinely and arbitrarily switch and discontinue drug regimens that were carefully developed and calibrated by private medical professionals and by medical professionals at other correctional institutions, without consultation with the affected patients and without regard to the negative therapeutic consequences. When prisoners’ medications are not arbitrarily discontinued, Defendants’ dysfunctional system for distributing medicine forces sick and disabled men to stand outside for hours in all weather, and sometimes requires them to choose between
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receiving their drugs and eating their meals. The Rivers facility has a policy of confiscating prescribed medical devices, such as braces and orthopedic shoes, for no penological reason, even when such devices have been prescribed and provided by other correctional institutions. Defendants then fail to replace these devices, causing previously ambulatory persons to rely on wheelchairs for mobility. Rivers provides no physical therapy; its personnel simply disregard explicit instructions in prisoners’ sentencing reports and medical records to provide this treatment. Serious mental health needs are ignored even when they are specifically identified in sentencing documents or other medical records. The consequences of this conduct are exacerbated because the prisoners at Rivers are older and sicker on average than the United States prison population as a whole.
4. By allowing this broken medical system to continue as detailed in this Second Amended Complaint, Defendants have permanently harmed men at Rivers; have precipitated numerous and otherwise avoidable acute medical crises; have caused men at Rivers to experience chronic and debilitating pain and suffering; and have contributed to the needless disfigurement, increased morbidity, and serious physical injury of numerous men.
5. Men incarcerated at Rivers depend upon their custodians, both federal and private, to provide Constitutionally adequate care. GEO has also specifically agreed in its contract with Defendant BOP that it will provide Plaintiff with medical services that are commensurate with community standards. Defendants’ generally applicable policies, guidelines, and practices have all contributed to GEO’s failure to respond adequately to prisoners’ serious medical needs. Through these unlawful policies and practices,
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Defendants have manifested a pervasive and deliberate indifference to the health needs of their charges. As a result, Defendants have knowingly and willfully denied Plaintiff of his rights to adequate medical care in violation of the U.S. Constitution, federal law, state law, and contract.
6. Prisoners with disabilities at Rivers suffer doubly at the hands of Defendants because in addition to being denied adequate health care, they are also subject to discrimination: they are excluded from and denied access to the programs, services, facilities, and activities at Rivers, because Defendants refuse to make reasonable accommodations. Defendants’ discriminatory acts against prisoners with disabilities include their refusal to add ramps or disabled accessible bathrooms to common areas; their failure to install internal doors, which prisoners must use to move from one part of the facility to another, that can be opened by persons with disabilities; and their failure to provide adequate mental health services and treatments that are required by prisoners with disabilities.
7. Upon information and belief, the deficiencies and deprivations described above and detailed in this Complaint are the result of Defendant GEO’s aggressive efforts to cut costs and boost profits. Such deficiencies and deprivations described above and detailed in this Complaint are also the result of Defendant BOP’s indifference to serious medical needs of prisoners in its custody and persistent failure to ensure that GEO fulfills the federal duty it has undertaken to provide. Because the harms caused by Defendants’ policies and practices will continue without the aid of the Court, Plaintiff seeks declaratory and injunctive relief.
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PARTIES A. Plaintiff
8. Plaintiff represents and is a member of a class of persons including current and future prisoners at Rivers who, during their incarceration at Rivers, are wholly dependent upon the organizations, systems, policies, practices, and institutional conditions of Defendants for their receipt of medical, dental, and mental health care.
9. Plaintiff also represents and is a member of a sub-class of the Class who are “individuals with a disability,” as that term is defined in Section 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 794, et seq. (the “Rehabilitation Act”), and the regulations promulgated under that statute, and who have been subjected to discrimination and excluded from and denied access to the programs, services, facilities, and activities at Rivers due to their disabilities, in violation of Section 504 of the Rehabilitation Act.
10. Plaintiff LOUIS CALLAND: Mr. Calland is a 70-year-old man incarcerated at Rivers. He has been assigned Federal Register Number 32355-007. Mr. Calland arrived at Rivers in August 2004. Mr. Calland has arthritis, degenerative bone disease, and diabetes. Since 2003, he has been reliant on a wheelchair due to the pain associated with walking. When Mr. Calland arrived at Rivers, he requested physical therapy treatment. Defendants informed him that no physical therapy services were available at the facility and that none would be provided. Mr. Calland’s condition has worsened since he arrived at Rivers and he suffers extreme pain. Despite Mr. Calland’s frail health, Defendants require him to maneuver outside and wait in the “pill line” to receive his medication every day, regardless of weather conditions. Mr. Calland is
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unable to access many of the facilities at Rivers because they are not accessible to persons with physical disabilities. Traveling from the recreation area to the main area requires Mr. Calland and other prisoners with physical disabilities to surmount a large curb. Mr. Calland cannot maneuver around this obstacle in his wheelchair without assistance. Additionally, many of the common area bathrooms are not accessible to persons with physical disabilities such as Mr. Calland. The few bathrooms accessible to Mr. Calland and other prisoners with physical disabilities are not easily accessible from most common areas at Rivers, and in some instances require them to navigate a path with curbs and other obstacles. The shower facilities do not include hand-held shower heads and adequate seating in order to accommodate a person in a wheelchair. Many doors that men must use to move from one part of the facility to another are extremely difficult to open by persons with physical disabilities. This is particularly true for a man of Mr. Calland’s age and condition, which has deteriorated further because he has not been given the opportunities to improve his strength through therapy. As a result of Defendants’ failure to provide accessible facilities, Mr. Calland has been denied equal access to and receipt of the facilities, programs, services, and activities at Rivers. Mr. Calland has told Defendants BOP and GEO about the lack of medical services and lack of accessibility for disabled persons at Rivers that have caused his condition to worsen and resulted in undue pain and suffering, but Defendants BOP and GEO have failed to provide him with any relief.
11. As a result of Plaintiff’s incarceration at Rivers, he along with the Class and the Disability Sub-Class, were and are wholly dependent on Defendants for the delivery of care to address their health care needs. Plaintiff is a victim of the systemic
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failures of Defendants to provide lawfully required health care services to Rivers residents and have been injured as a result of Defendants’ conduct. Plaintiff and the Disability Sub-Class also have suffered and continue to suffer injuries as a result of the Defendants’ discriminatory conduct in excluding them from and denying them access to the programs, services, facilities, and activities at Rivers based on their disabilities. B. Defendants
12. Defendant GEO is a for-profit corporation formed and existing under the laws of the State of Florida and having its principal place of business in the State of Florida. GEO is in the business of building, owning, operating, and managing correctional, detention, mental health, and residential treatment facilities in the United States and around the world. GEO is a publicly-traded corporation and is listed on the New York Stock Exchange under ticker symbol “GEO.” GEO reports that it manages a total of 53 correctional, detention and mental health facilities, with a capacity of over 63,000 beds. In 2007, GEO had revenues totaling over $900 million and profits of over $50 million. One of the correctional facilities built, owned, operated, and managed by GEO, pursuant to a written contract with the BOP, is Rivers. At all times relevant to this Complaint, Defendant GEO had undertaken the duty to provide Constitutionally adequate medical care owed to Plaintiffs by Defendant UNITED STATES OF AMERICA acting through the BOP.
13. Defendant the UNITED STATES OF AMERICA, pursuant to federal law, has mandated that its department, the BOP, have the responsibility for overseeing, controlling, managing, and supervising the federal prison system, including Rivers, and those persons incarcerated therein.
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14. Defendant HARLEY LAPPIN is employed by the BOP as its Director. As the Director of the BOP, Defendant LAPPIN is charged with the custody and care of each Plaintiff as well as each member of the Class and Sub-Class while incarcerated at Rivers. Defendant LAPPIN is responsible for overseeing the administration of the BOP and approving all BOP policies relating to the treatment of persons under its care, including those persons incarcerated at Rivers. At all times relevant to this Complaint, Defendant LAPPIN was acting as an employee and agent of Defendant UNITED STATES OF AMERICA.
OTHER AFFECTED PERSONS 15. Mr. Michael Collins is a 43-year-old man incarcerated at Rivers. He has been assigned Federal Register Number 06276-007. Mr. Collins arrived at Rivers in February 2006. Mr. Collins was diagnosed as a diabetic prior to arriving at Rivers. In March 2006, one month after his arrival, he requested diabetic shoes when he noticed he was developing a callus on his left foot from the standard issue boots. Although the request was initially approved, the treatment was excessively delayed. At this time, Rivers medical staff diagnosed Mr. Collins with Methicillin-resistant Staphylococcus aureus (commonly referred to as “MRSA”), a highly contagious, drug-resistant bacterial infection, on the same foot. When Mr. Collins also requested to see a podiatrist in March 2006, he instead was directed to meet with the general practitioner at Rivers who “cut out” the callus, leaving a “hole” in the bottom of Mr. Collins’s left foot. Defendants neither treated the MRSA infection nor adequately treated the wound created when the doctor cut out the callus. The infection on Mr. Collins’s foot quickly worsened to such an extent that, two months later, when a member of the medical staff was changing the
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bandage, the infection “squirted out” of a new hole that had developed in the top of his foot. Mr. Collins was unable to walk. He was transported to Roanoke-Chowan Hospital, where an orthopedist removed some dead skin while Mr. Collins was under anesthesia; he remained hospitalized for several nights and was administered intravenous antibiotics. Mr. Collins’s foot did not properly heal, however, and he endured constant pain for ten months while repeatedly requesting medical assistance. In January 2007, the Rivers general practitioner examined Mr. Collins’s foot again and removed a piece of bone from the festering wound. Two days later Mr. Collins was rushed to an orthopedist, who told Mr. Collins that his foot had deteriorated to the point that the front half of his foot required amputation. The front portion of his left foot and all of his toes on that foot were amputated shortly thereafter. When Mr. Collins returned to Rivers, Defendants refused to pay for or supply him with prosthetic shoes, causing Mr. Collins to suffer for over seven months without the medical supplies necessary for him to walk properly. He received a prosthetic insert for his shoe only after an outside medical provider offered to give it to him at no cost to Defendants. As a consequence of Defendant’s conduct, Mr. Collins endured months of intense pain and, at times, immobility. Since the amputation, Mr. Collins is unable to attend to many of the activities of daily living.
16. Mr. John Roe is a man currently incarcerated at Rivers. Before arriving at Rivers Mr. Roe had been diagnosed as suffering from depression and schizophrenia. As a result of his mental health conditions, Mr. Roe has attempted suicide on at least three occasions. When he is denied his medications, Mr. Roe’s chronic depression, paranoia, and frequent hallucinations affect his ability to concentrate and to interact with other people, resulting in limitations of major life activities including thinking, reading,
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communicating with prison staff and others, following directions, and protecting himself from harm. Mr. Roe also suffers from a number of chronic, preexisting physical conditions. During his incarceration at Rivers, Mr. Roe repeatedly has sought medical and mental health care from Defendants. He has been permitted to see a mental health professional on only a handful of occasions, and his psychotropic medications have been either discontinued or replaced because, he was told in substance, “This is not the jail. You’re not in the community. This is a business.” Mr. Roe continues to be denied access to a mental health professional despite his well-documented history of mental illness. Additionally, even though non-party medical professionals had directed that Mr. Roe undergo hip replacement surgery, Rivers denied him this treatment, and instead prescribed pain medication. On several occasions during his incarceration, Mr. Roe has asked to see the prison doctor regarding his chronic physical conditions and has either been refused care or has experienced lengthy delays in receiving it due to the fact that there is only one prison doctor at Rivers. As a result of this failed system, Mr. Roe has suffered from insomnia and hallucinations, and continued to experience heightened chronic pain from his various physical conditions.
17. Mr. Keith Mathis is a 46-year-old-man who was incarcerated at Rivers from March 2006 to March 2008. He has been assigned Federal Register Number 35973007. Mr. Mathis sought treatment for a dental cavity shortly after he arrived at Rivers. Though the Rivers dentist concluded in March 2006 that “oral surgical procedures” were required, Mr. Mathis was not treated by the dentist until May 24, 2006, by which time the tooth had worsened. The dentist refused Mr. Mathis’s request to pull the tooth and told Mr. Mathis that he would “take care of it” with a filling. The dentist applied the filling
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material over the tooth without first drilling and removing the diseased tooth material. Although Mr. Mathis was unable to bite or chew normally, his request to see the dentist for a follow-up appointment was denied; he was told by a member of the medical staff that he would “just have to suffer.” Shortly thereafter, Mr. Mathis began experiencing severe pain, and a knot-like growth appeared on his neck near the infected tooth. His face and neck began to swell from infection. Mr. Mathis sought medical treatment by going directly to the infirmary, but a nurse refused him treatment and sent him back to his cell. The next day the swelling was visibly worse and began to spread up his face toward his eye. Mr. Mathis made repeated attempts to seek medical treatment from Defendants and was repeatedly denied care for another week. By July 2006, he was in constant pain and could not fully open his mouth or chew properly. During this period an open sore had also formed on the inside of Mr. Mathis’ mouth and had started oozing “green slime.” Mr. Mathis began feeling faint and was shaking and sweating. A guard took Mr. Mathis to the Rivers infirmary, where, for the first time in months of repeated pleas for medical care, Mr. Mathis was treated with antibiotics and pain medication. On July 19, 2006, Mr. Mathis was in such severe pain that he twice sought medical attention from Defendants, who had done nothing to address the swelling and abscess that they noted in their medical records. Sweating and feverish, with his face and neck swollen from an infected sore oozing green slime, and weakened from hunger, Mr. Mathis was finally transported to a local hospital later that same evening. A few hours after arriving at the hospital the swollen side of Mr. Mathis’s face “burst open.” Mr. Mathis underwent emergency surgery and spent three days in the hospital. He was told that his condition was so serious that the doctors had been forced to cut open his face to remove a raging
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infection. As a direct result of Defendants’ inaction and indifference, Mr. Mathis suffered excruciating pain for several months, has lost feeling on the affected side of his face, cannot fully open his mouth, cannot bite or chew properly, drools uncontrollably, and bears a permanent scar down one side of his face.
18. Mr. Reon Holloway is a 26-year-old man who was incarcerated at Rivers from December 2005 to August 2007. He has been assigned Federal Register Number 36620-007. Mr. Holloway is immobilized from the waist down, experiences frequent seizures, and suffers from severe twitching and intense pain in his legs. Before arriving at Rivers, Mr. Holloway had received physical therapy for his conditions and had progressed to the point that he was able to walk with the help of a walker, leg braces, and orthopedic shoes that integrate with those braces. Mr. Holloway had also been prescribed medication for pain management and bone loss by doctors at the National Rehabilitation Hospital (“NRH”). Defendants informed Mr. Holloway upon his arrival at Rivers that no physical therapy is available at the facility, explaining that although “it would be good” for him to get therapy, “we just don’t have it here.” Defendants told Mr. Holloway that his orthopedic shoes were the wrong color (gray) and confiscated them for 18 months. Without orthopedic shoes, Mr. Holloway was unable to use his leg braces and walker. Defendants returned Mr. Holloway’s orthopedic shoes shortly after Mr. Holloway met with attorneys investigating the medical conditions at Rivers; however, by that point, his inability to walk for 18 months, coupled with the absence of physical therapy, had weakened his legs to the point that he was no longer able to use the orthopedic devices. Newly reliant on a wheelchair, Mr. Holloway was unable to access many of the facilities at Rivers because they are not accessible to persons with disabilities. There were no
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ramps at Rivers for Mr. Holloway to use. Traveling from the recreation area to the main area required Mr. Holloway and other prisoners with physical disabilities to surmount a large curb. Mr. Holloway could not maneuver around this obstacle in his wheelchair without assistance. Additionally, many of the common area bathrooms were not accessible to persons with physical disabilities such as Mr. Holloway. The few bathrooms accessible to Mr. Holloway and other prisoners with physical disabilities were not easily accessible from most common areas at Rivers, and in some instances required them to navigate a path with curbs and other obstacles that impede their trips such that they often cannot reach an accessible bathroom in time to use it. The shower facilities did not include hand-held shower heads and adequate seating in order to accommodate a person in a wheelchair. The tables in the dining hall and classroom were not designed to accommodate persons with physical disabilities; the gym lacked equipment usable by persons with physical disabilities; and many doors that men must use to move from one part of the facility to another could not be opened by persons with physical disabilities. As a result of Defendants’ failure to provide truly accessible facilities, Mr. Holloway was denied equal access to and receipt of the facilities, programs, services, and activities at Rivers. In addition, Defendants refused to continue Mr. Holloway’s medication regimen for bone deterioration prescribed by the NRH; they offered to replace his bone loss medication with an antacid. Defendants also confiscated the sophisticated regime of prescription pain medication that had been prescribed for Mr. Holloway’s chronic leg pain at a D.C. correctional facility, offering to replace it with ibuprofen. As a consequence of Defendants’ conduct, Mr. Holloway’s physical condition deteriorated severely. Mr. Holloway was needlessly forced to rely on a wheelchair, lost the range of
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mobility he had developed in his legs, suffered considerable pain, and was prevented from utilizing the facilities, programs, services, and activities at Rivers.
19. Mr. David Rogers is a 45-year-old man who was incarcerated at Rivers from April 2006 to June 2008. He has been assigned Federal Register Number 12648007. A car accident in 2000 left Mr. Rogers paralyzed from the neck down, but following extensive physical therapy, he eventually regained the ability to walk with the assistance of a walker. His sentencing order states that he should have been housed in a medical facility that can accommodate his physical rehabilitation. Mr. Rogers’s former doctor at Kernan Orthopedics and Rehabilitation Hospital of the University of Maryland warned Defendants that without continued physical therapy and treatment, Mr. Rogers might lose his hard-won mobility, because his legs would spasm and contract into a seated position. Nonetheless, when he arrived at Rivers, Mr. Rogers was told that no physical therapy services were available at the facility, and that none would be provided. In response to his request for physical therapy, medical staff suggested that he locate and tie a water jug to his leg and, without medical supervision or instruction, do exercises. Upon information and belief, the Rivers staff also refused to continue Mr. Rogers’s medication regime, which had been developed by NRH doctors. Without physical therapy or necessary medications, Mr. Rogers’ condition severely deteriorated. As a consequence, he became unable to walk or to straighten his legs past a 90-degree angle – precisely the outcome that his doctor warned of – and now must rely on a wheelchair for ambulation. He was unable to access many of the facilities at Rivers because they were not accessible to persons with physical disabilities. There were no ramps at Rivers for Mr. Rogers to use. Traveling from the recreation area to the main area required
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Mr. Rogers and other prisoners with physical disabilities to surmount a large curb. Mr. Rogers could not maneuver around this obstacle in his wheelchair without assistance. Additionally, many of the common area bathrooms were not accessible to persons with physical disabilities such as Mr. Rogers. The few bathrooms accessible to Mr. Rogers and other prisoners with physical disabilities were not easily accessible from most common areas at Rivers, and in some instances required them to navigate a path with curbs and other obstacles that impeded their trips such that they often could not reach an accessible bathroom in time to use it. The shower facilities did not include hand-held shower heads and adequate seating in order to accommodate a person in a wheelchair. The tables in the dining hall and classroom were not designed to accommodate persons with physical disabilities; the gym lacked equipment usable by persons with physical disabilities; and many doors that men must use to move from one part of the facility to another could not be opened by persons with physical disabilities. As a result of Defendants’ failure to provide truly accessible facilities, Mr. Rogers was denied equal access to and receipt of the facilities, programs, services, and activities at Rivers.
20. Mr. Benjamin Hamilton is a 48-year-old man who was incarcerated at Rivers from March 2003 to September 2008. He has been assigned Federal Register Number 32071-007. Mr. Hamilton arrived at Rivers in March 2003. In December 2004, Mr. Hamilton discovered a boil on his leg, and, within three days, his entire leg was swollen. A nurse told him to put a hot compress on his leg; he received no medication or other treatment. Several more boils began to appear on his leg, and by January 2005, both of his legs were covered in boils. The nursing staff told Mr. Hamilton to continue using hot compresses, but, again, he received no medication or other treatment.
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In February 2005, another prisoner told Mr. Hamilton that it looked like Mr. Hamilton had MRSA. The other prisoner advised Mr. Hamilton that many other men at Rivers were suffering from the same symptoms and that Mr. Hamilton should get the boils cultured in accordance with standard medical protocols. Despite numerous large, painful boils on his body and repeated requests to Defendants for medical treatment, Mr. Hamilton was not allowed to see a doctor until February 2005 -- two months after he first sought medical treatment. He was not diagnosed with MRSA until April 2005 -- four months after he first sought treatment. While Mr. Hamilton was initially put on antibiotics, which temporarily halted the symptoms, Defendants discontinued the antibiotics after five days, causing the boils to return twice more in Spring 2005 on his legs and again in Spring 2006 on his penis. When he reported the outbreak to a nurse, she responded, without examining him, that this was just a part of aging and a normal problem for older men. By Fall 2006, Mr. Hamilton had begun to develop a boil on his face. He received no treatment for any of these conditions. The boils caused great pain and permanent scarring. Mr. Hamilton has also sought medical treatment for severe and continuing pain in one knee. Without conducting any physical examination or tests, a doctor at Rivers told Mr. Hamilton that it was arthritis and suggested that he purchase some ibuprofen from Defendant GEO at the facility commissary. On another occasion Mr. Hamilton asked for an eye examination to update the prescription for his glasses, which had last been updated at the D.C. Jail prior to his arrival at Rivers. An ophthalmologist has previously diagnosed Mr. Hamilton with a type of refractive error known as presbyopia, which renders him unable to focus on objects. Mr. Hamilton has worn glasses for many years and cannot function normally without them. Without
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examining Mr. Hamilton, a Rivers nurse told him that his eyesight was fine and that he did not need glasses.
21. Mr. Harold Robinson is a 51-year-old man incarcerated at Rivers from September 2006 to August 2007. He has been assigned Federal Register Number 03180000. Mr. Robinson suffered a serious back injury in an automobile accident in 2006. Following the accident Mr. Robinson received extensive physical therapy at a local hospital, and he continued to see a physical therapist at a D.C. jail facility. This therapy helped relieve the severe pain from his back injury. When he arrived at Rivers, however, his physical therapy was halted because Rivers does not offer physical therapy, regardless of need or prescribed treatment. Mr. Robinson repeatedly requested physical therapy and was repeatedly denied any such therapy by medical staff. As a result of the discontinuation of physical therapy, he experienced a loss of mobility and severe and steadily worsening pain, for which the medical staff suggested that he take ibuprofen. A few days before Mr. Robinson was scheduled to meet with attorneys investigating the medical conditions at Rivers in January 2007, he was called to the infirmary and given Vicodin®, a strong painkiller; this medication was halted shortly after the attorneys left the facility. Despite Mr. Robinson’s disability, Defendants denied Mr. Robinson’s request for a chair with back support to replace his standard-issue stool; a member of the medical staff told him that he had “a snowball’s chance in hell” of ever getting such a chair from the facility.
22. Mr. Charles Lewis is a 59-year-old man who was incarcerated at Rivers until March 2006. He has been assigned Federal Register Number 035334-007. Prior to being incarcerated at Rivers, Mr. Lewis had been diagnosed as suffering from Bell’s
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Palsy and had suffered three heart attacks and two strokes. As result of these conditions, his left side was substantially weakened and the left side of his face drooped, which altered his speech. While incarcerated in D.C. jail facilities prior to his arrival at Rivers, Mr. Lewis was evaluated by a specialist and sent to a local hospital for physical and speech therapy three times per week; was under the care of cardiology and neurology specialists; and was on a carefully calibrated, extensive medication regime. Mr. Lewis also used a physician-prescribed back brace and a knee brace. As a result of his medical care, his weakened left side became progressively stronger. As part of his sentencing, the D.C. courts took note of Mr. Lewis’s medical conditions and recommended treatment. Upon his arrival at Rivers, Mr. Lewis was placed in disciplinary segregation for possessing the nitroglycerine pills prescribed to him by the D.C. Jail for his heart condition and chest pains. His physician-prescribed back brace and knee brace were confiscated and never returned or replaced. Despite the fact that Mr. Lewis arrived with refillable prescriptions for his medications, Defendants refused to provide Mr. Lewis with some of his medications, and dramatically changed others, causing Mr. Lewis to experience dizziness and disorientation. When Mr. Lewis reported these side effects, the Rivers doctor provided no medical assessment or treatment. In December 2005, the dizziness became so severe that Mr. Lewis fell and injured his head while trying to sit on a bench. When he sought medical attention for his injuries he was offered ibuprofen by a nurse. Mr. Lewis advised the doctor at Rivers that the D.C. courts had recommended special medical treatment as part of his sentencing, and that he had been provided with physical therapy while at the D.C. Jail. In response, the Rivers doctor stated that physical therapy services were not provided at Rivers. During his incarceration at Rivers, Mr.
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Lewis never saw a neurologist, cardiologist, or physical therapist as he had regularly done before arriving at Rivers. As a result of the medical care that he received at Rivers, the strength that Mr. Lewis developed in his left side before he arrived at Rivers was lost. He also frequently had to skip meals and wait outdoors in a “pill line,” in all weather, in order to get his medications three times per day. Despite his multiple chronic and severe medical conditions, and despite seeking medical care on numerous occasions, Mr. Lewis was never treated by a medical specialist for his conditions while at Rivers.
23. Mr. Doe is a D.C. resident who was incarcerated at Rivers until 2008. At the time of his arrival at Rivers, Mr. Doe had previously been diagnosed as HIV positive, diabetic, hypertensive, and suffering from Hepatitis C, and had suffered from a stroke. As a result of his conditions, at the time of his arrival at Rivers Mr. Doe was being treated with a carefully calibrated medication regime prescribed by doctors at the Federal Medical Center in Rochester, Minnesota (a facility affiliated with the Mayo Clinic) and maintained by the D.C. jail facilities, including at least eight prescription medications and a special diet. Mr. Doe arrived at Rivers with a complete 30-day supply of all his medications. Defendants promptly confiscated those medications and denied Mr. Doe all medication for the first week of his incarceration at Rivers. Despite Mr. Doe’s frail health, Defendants required Mr. Doe to stand outside in the “pill line” multiple times a day to receive his medications. As a result of Defendants’ faulty system, Mr. Doe was forced on a routine basis to miss his special dietary meal so that he could obtain his medications. As a consequence, Mr. Doe lost over 15 percent of his body weight at Rivers, and suffered from such severe weakness that he was unable to participate in outdoor activities or walk normally.
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24. Mr. Fowler is a 52-year-old man who was incarcerated at Rivers from November 2005 until May 2007, when he was transferred to the Federal Correctional Institution in Petersburg, Virginia. He has been assigned Federal Register Number 00472-000 and is not scheduled to be released from federal custody, at the earliest, until July 2009. At the time of his arrival at Rivers, Mr. Fowler had previously been diagnosed with and was being treated for both diabetes and high blood pressure. As a result of these conditions, Mr. Fowler was required to conduct multiple “finger prick” tests each day to monitor his blood sugar levels, take insulin pills throughout each day, and take medication daily for his high blood pressure. When he arrived at Rivers, Mr. Fowler’s diabetes and high blood pressure medications were confiscated and not returned. For several weeks, Mr. Fowler was forced to obtain insulin pills from other diabetic prisoners at Rivers to avoid hypoglycemic shock. Neither Mr. Fowler nor the prisoners who shared their insulin received proper medication. Despite repeated requests by Mr. Fowler, Defendants continue to refuse to allow daily monitoring of Mr. Fowler’s blood sugar levels, requiring him instead to submit sick call requests for the following day each time he wanted to be monitored. Defendants advised Mr. Fowler that the blood pressure medication that he had been prescribed was “too expensive.” They replaced it with an alternate medication that caused Mr. Fowler severe headaches, dizziness and swelling in his extremities. The actions of Defendants described here caused Mr. Fowler substantial pain and suffering, and increased his risk of serious and potentially lifethreatening complications from his chronic conditions.
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JURISDICTION AND VENUE 25. This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. § 1331, § 1343 and § 1367. 26. This Court has personal jurisdiction over each of the Defendants. 27. Venue of this action lies in the Eastern District of North Carolina pursuant to 28 U.S.C. §§ 1391 (b), (c) and (e).
STATEMENT OF FACTS A. GEO Wins a Contract to House BOP Prisoners at Rivers
28. Pursuant to federal law, the BOP generally has the authority to designate the place of incarceration for prisoners in federal custody. The BOP uses both BOPoperated correctional facilities as well as privately-owned and -operated facilities to house prisoners in federal custody. According to the BOP’s webpage, “[a]pproximately 15 percent of the Bureau’s inmate population are confined in secure facilities operated primarily by private corrections companies and to a lesser extent by state and local governments, and in privately-operated community corrections centers.” Ostensibly, by housing a portion of its prison population at private prisons such as Rivers, the federal government is able to reduce its expenditures for those prisoners, meet budget constraints imposed by Congress, and thereby benefit financially from contracting out services to the lowest bidder.
29. GEO is the second largest private prison operator in the United States. Approximately one-third of its business is with agencies of the U.S. government, including the BOP, U.S. Marshals Service, and U.S. Immigration and Customs Enforcement. In its corporate documents, GEO highlights the company’s “long-term
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customer relationships” with these federal agencies, and states that GEO “intend[s] to capitalize on our long-term relationships with governmental agencies to continue to grow our correctional, detention and mental health facilities management services and to become a preferred provider of complementary government-out-sourced services.” Through its commercial sales and marketing efforts, GEO has successfully competed for more than a dozen federal contracts from federal agencies.
30. In 1998, the BOP issued an RFP seeking a private contractor to house a portion of the 50 percent of D.C. Code felony offenders who by law must be incarcerated in private prisons. On information and belief, GEO, by its predecessor Wackenhut Corrections Corporation, submitted a response to that RFP and negotiated with the BOP over the commercial and other terms of such an agreement, including GEO’s obligations with respect to the provision of medical, dental, and mental health care. GEO’s offer was accepted, and a contract between GEO and BOP to house prisoners at Rivers (the “Rivers Contract”) was formed. A copy of the Rivers Contract is attached as Exhibit A to this Complaint in the form that it was received from federal officials, and is incorporated by reference.
31. Pursuant to the Rivers Contract, GEO has agreed, under BOP supervision and control, to house low-security, male offenders at GEO’s Rivers facility. Rivers is a private, for-profit correctional facility owned and operated by GEO. It is located at 145 Parker’s Fishery Road, Winton, N.C. 27986. The BOP has sent thousands of men to Rivers since the facility opened in 2001. Rivers currently houses approximately 1,300 persons.
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B. GEO’s Obligation to Provide Medical, Dental, and Mental Health Care under the Supervision and Control of the BOP 32. Individuals incarcerated at Rivers are wholly dependent on GEO and the
BOP for their medical, dental, and mental health care and related services. By entering into the Rivers Contract, GEO, under BOP supervision and control, assumed responsibility for the medical treatment of persons incarcerated at the Rivers facility, and voluntarily submitted to long-term regulation and oversight by the BOP.
33. The Rivers Contract spells out in great detail the services that GEO is required to provide to and for the benefit of Rivers prisoners under the direct daily supervision and control of the BOP. The Rivers Contract requires GEO to provide “all essential health services” and to adhere to “the U.S. Constitution,” and “all applicable Federal, state and local laws and regulations governing the delivery of health services”. GEO also undertook to “establish the necessary quality controls to ensure all policies and procedures are designed and implemented in a manner to promote orderly and efficient delivery and management of health services to the inmate population.” Among other things, the Rivers Contract also requires GEO to provide a broad range of health services, maintain adequate staffing levels, and comply with accessibility standards. The Rivers Contract also vests the BOP with the power to exercise control over GEO’s personnel decisions, policies, and procedures. The BOP, in turn, is charged with monitoring and overseeing GEO’s compliance with those contract obligations.
34. As acknowledged on the BOP’s webpage, the “[s]taff of the Correctional Programs Division in Central Office [of BOP] provide oversight for privately-operated facilities.” The BOP’s Privatization Management Branch of its Correctional Programs Division has specific responsibility for oversight and monitoring of GEO’s activities at
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Rivers. As part of that oversight and monitoring, the BOP’s Privatization Management Branch has received administrative complaints from prisoners, including Plaintiff, concerning the medical conditions at Rivers. After exhausting Rivers Correctional Institution’s internal grievance process, Plaintiff submitted Regional Administrative Remedy Appeals to BOP’s Privatization Management branch on the Rivers facility’s treatment of his arthritis and on his inability to access parts of the Rivers facility using his wheelchair. The Privatization Management Branch’s Administrative Remedy Coordinator responded to Plaintiff’s Appeals in the form of a rejection notice. Through Appeals from Plaintiff and other prisoners, the BOP has received actual notice of the harms caused to prisoners in its custody by the grossly inadequate medical care and lack of accessible facilities at Rivers. Despite BOP’s knowledge, the BOP continues to disregard the risks to prisoner health and safety at Rivers.
35. The Rivers Contract also provides for on-site BOP monitors at the Rivers facility, charges them with “the technical direction of the performance of all work” performed pursuant to the Rivers Contract, and requires the construction of a 2,500square-foot office and ten parking spaces for their exclusive use. By walking the halls and having an office onsite at Rivers, the BOP monitor has first-hand knowledge of the grossly inadequate medical care and lack of accessibility for disabled prisoners at Rivers. In addition, an on-site BOP monitor participates in the prison officer “main line,” which occurs daily at lunchtime weather permitting. The “main line” is part of the daily routine at BOP facilities -- including Rivers. During the daily “main line,” prison staff stand together outside of the dining hall at mealtime to make themselves available for informal discussions with prisoners and to receive and address their complaints. Through
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participation in the “main line” the on-site BOP monitors have actual notice of prison complaints about the medical conditions and can get visual confirmation of the lack of accessibility for disabled prisoners in the facility. Accordingly, the BOP is aware of and continues to disregard the risks and severe harm to prisoner health and safety detailed by Plaintiff in the Complaint.
36. The Rivers Contract is a fixed price contract providing for a set payment to GEO per time period, irrespective of GEO’s costs of providing the services, including health care services, required by the BOP. Thus, to the extent that GEO is able to reduce the costs of the medical, dental, and mental health services offered at Rivers, GEO’s profits are increased.
C. Defendants’ Unconstitutional and Illegal Organizations, Systems, Patterns and Practices at Rivers 37. It is well known to Defendants that the population of persons incarcerated
in federal prisons suffer from the full spectrum of routine medical problems found in the general population. Those problems include acute conditions such as fractures and infections, as well as chronic diseases such as epilepsy, diabetes, tuberculosis, and HIV. It is also well known to Defendants that prisoners suffer from a higher rate of serious medical, dental, and mental health problems and conditions than does the American population as a whole. Defendants are also aware that the population at Rivers is older than typical prison populations, and suffers from a correspondingly higher incidence of health problems than the general prison population in the United States.
38. Defendants are deliberately indifferent to the serious medical needs of Plaintiff and the Class. Defendants’ indifference has produced and perpetuated a health care delivery system at Rivers that is so grossly inadequate as to violate the legal rights of
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Plaintiff and the Class. The systemic failure of the Rivers health care delivery system is illustrated by the following:
a. Grossly Inadequate Access to Health Care—Defendants routinely and knowingly fail to provide prisoners with access to essential health care. Prisoners suffering from serious and even acute conditions are habitually and indiscriminately denied treatment. Prisoners have been denied care for complex, multi-symptom ailments on the arbitrary ground that the doctor will not treat more than one condition per appointment. There is a substantial backlog of requests for routine and emergency medical and dental care, resulting in frequent and dangerously lengthy delays in accessing care. Rivers medical staff routinely refuse to refer prisoners to outside health care providers, or unreasonably delay referring prisoners to outside health care providers, even in situations where the prisoner’s medical, dental, or mental health conditions far exceed the therapeutic capabilities of Defendants or their facilities, and where treatment would be a necessary component of Defendants’ obligation to provide legally mandated care. Mental health care services are wholly inadequate. Physical therapy services are not offered. Defendants fail to provide lawfully adequate chronic care. On information and belief, necessary health care has in some cases been denied based solely on a prisoner’s expected release date, even when this date is over one year away, in an effort to avoid incurring the cost of such care.
b. Grossly Insufficient Staffing, Training and Supervision—The number of qualified health care staff at Rivers is wholly inadequate to provide care to Rivers’ 1,300 residents. There is one medical doctor who treats and
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supervises the care of all the prisoners at Rivers. On information and belief, this position has been filled by three different doctors in the past year, at least two of whom were not full time staff members at Rivers. There is only one part-time dentist on staff, who sees patients only irregularly. There is no physical therapist on staff or available on a contract basis for prisoners. The lone part-time psychologist attends to prisoners at Rivers on an irregular basis. The number of medical staff is grossly inadequate to meet the significant and documented medical, dental, and mental health needs of the men at Rivers. This grossly inadequate staffing is due, in part, to the fact that Defendants: (i) do not actively attempt to recruit and hire sufficient, competent medical staff; (ii) fail to train and supervise medical personnel; and (iii) are unable to retain those medical staff members who are hired. On information and belief, as a consequence of the severe staffing shortage, corrections officers with little or no health care training may serve as the gatekeepers for Plaintiff and the Class to access routine and even emergency medical care, leading to acute medical crises.
c. Failure to Provide Proper Access to Medications—Arriving prisoners’ prescription medications are routinely confiscated without regard to the impact on the prisoner’s health. Prisoners often have to wait a week or more before receiving substitute medications at Rivers. Determinations regarding medication regimens, and the composition of those regimens, are made based on the cost of the medications to GEO rather than the best interests of the patient. Prisoners’ medications are arbitrarily changed to less expensive medications without proper follow up to assess the efficacy and side effects of the new
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medications. Upon information and belief, many prisoners have been denied necessary medication altogether as a cost-saving measure for the facility. Prisoners at Rivers may only obtain certain medications by standing in the “pill line.” The pill line forms outside a window from which a nurse dispenses most medication available at the prison. The pill line window opens to an outside walkway that is open to the elements, except for a partial roof covering the walkway. Because the pill line moves very slowly, sick, disabled, and elderly prisoners must wait outdoors up to 60 to 90 minutes and sometimes longer for each dose of their needed medicines; for a person receiving three doses a day, this can add up to several hours a day waiting in the pill line to receive medication. Because of the extreme delays in distributing medication, prisoners are sometimes forced to choose between remaining in the pill line to receive their medication, or leaving the pill line to obtain food. Men who leave the pill line to obtain food have been punished for failing to take their medication. Men who have helped sick or elderly persons or persons with disabilities go to the front of the pill line have also been punished by Defendants. The pill line is a failed system for providing necessary medical care that has directly contributed to the poor health and declining condition of many prisoners at Rivers, particularly the sick and elderly.
d. Failure to Contain or Treat Infectious Diseases—Rivers has failed to respond reasonably or appropriately to outbreaks of MRSA, a highly contagious bacterial infection that is often found in prisons and other institutional settings. Defendants’ failure to respond properly to MRSA risks serious injury to
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all persons at Rivers, and to the communities where Rivers personnel live and into which Rivers prisoners are released or transferred. Because MRSA is resistant to standard antibiotic treatments, health care professionals are customarily instructed to take a sample of a potential infection site and “culture” it to determine which bacterial organism caused the infection and which antibiotic treatment will be most effective. On information and belief, such cultures are seldom if ever taken at Rivers. Prisoner complaints of possible MRSA boils are often disregarded, and some prisoners have been instructed to apply hot compresses or “shower with Dial soap” to rid themselves of such boils. When antibiotics are provided, they are generally prescribed for only brief periods and without benefit of any kind of laboratory test. As a result, many prisoners have experienced chronic and persistent MRSA infections, leaving them scarred and potentially exposed to lifethreatening illnesses. 39. The foregoing systemic failures and deficiencies in health care delivery at Rivers are open and notorious, and many of them (e.g., the pill line and staffing shortages) can be observed by any person at the prison, including the on-site BOP monitors. They create a substantial and ongoing risk to the health and safety of all inmates at Rivers, including Plaintiff. Nevertheless, despite the fact that both GEO and the BOP (through the BOP on-site contract monitors and Privatization Management Branch) are aware of these conditions and the risks they pose, both GEO and the BOP have disregarded the need to take immediate actions to protect Plaintiff and the Class from ongoing and future harm. Defendant GEO also has failed to meet the basic requirements of its contract with the BOP -- including adherence to the U.S. Constitution
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and all applicable Federal, state, and local laws -- while Defendant BOP has failed to provide lawfully adequate oversight or supervision of GEO’s conduct.
CLASS ACTION ALLEGATIONS
A. The Class 40. Plaintiff brings this action on his own behalf and, pursuant to Rules 23(a)
and 23(b)(1)-(3) of the Federal Rules of Civil Procedure, on behalf of a class of persons comprised of current and future prisoners of Rivers who, during their incarceration at Rivers, are dependent upon the organizations, systems, policies, practices, and institutional conditions of Defendants for their receipt of medical, dental, and mental health care (“the Class”).
41. As a result of their confinement at Rivers, members of the Class, including Plaintiff, have been and will be subjected to violations of their legal rights as described in this Complaint. Plaintiff has been injured by the unlawful and grossly inhumane level of medical care at Rivers that has resulted from Defendants’ dysfunctional organizations, systems, policies, practices, and institutional conditions. Plaintiff represents the Class seeking primarily declaratory and injunctive relief to correct or eliminate the organizations, systems, policies, practices, and institutional conditions that deprive them of their rights.
42. The proposed Class is so numerous and fluid that joinder of all members is impracticable. There are currently more than 1,300 men at Rivers, each of whom depends upon Defendants to receive needed medical, dental, and mental health care while incarcerated. All members of the Class are at risk of developing serious medical conditions while at Rivers due to the grossly inadequate care provided. The size and
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membership of the Class exhibits an inherent instability of composition as a consequence of prisoner transfers and releases and the incarceration of new prisoners.
43. All Class members are equally subject to the conditions described in this Complaint, and common questions of law and fact exist as to all Class members. These common questions include, but are not limited to: (a) whether Defendants provide systemically inadequate medical, mental health, and dental care to the Class members; (b) whether Defendants have been deliberately indifferent to the serious medical, mental health, and dental needs of the Class members; (c) whether Defendants have placed Class members at unreasonable risk of developing serious medical, mental health, and dental problems; (d) whether Defendants have violated Class members’ rights to be free of cruel and unusual punishment under the Eighth Amendment; (e) whether Defendants provide medical, mental health, and dental care that is comparable or substantially equivalent to the care provided to other federal prisoners and the community at large; and (f) whether the inadequacies in the provision of medical, mental health, and dental care at Rivers arise from Defendants’ efforts to reduce costs and to boost profits of GEO, at the expense of providing Constitutionally adequate care.
44. The organizations, systems, policies, practices, and institutional conditions that form the basis of this Complaint as to the Class are common to all members of the Class, and the relief sought will apply to all of them. Each member of the Class has a common interest in preventing the recurrence of the wrongful conduct described herein.
45. Plaintiff’s claims are typical of the claims of the Class. Plaintiff and the Class he represents have been directly injured by Defendants’ prison-wide unconstitutional and unlawful organizations, systems, policies, practices, and institutional
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conditions with respect to health care at Rivers, as demonstrated by the detailed accounts provided by Plaintiff and other prisoners provided above. Plaintiff advances legal and factual theories similar to those offered by other Class members, including the description of the grossly inadequate access to health care, grossly insufficient medical staffing, lack of proper access to medication, and lack of protocols to contain or treat infectious diseases, which affects all Class members similarly and results in unconstitutional and negligent medical care and a breach of the Rivers Contract, claims that are common to Plaintiff and Class members.
46. Plaintiff will fairly and adequately represent the interests of the Class. Plaintiff has no interests separate from the Class, and seeks no relief in this action other than the relief sought on behalf of the Class. Plaintiff’s counsel are experienced in the protection and enforcement of the legal rights of prisoners.
47. The prosecution of separate actions by individual members of the Class would create a risk of inconsistent and varying adjudications that would establish incompatible standards of conduct for the Defendants.
48. The prosecution of separate actions by individual members of the Class would create a risk of adjudications with respect to individual members that would, as a practical matter, substantially impair the ability of other members to protect their interests.
49. Defendants have acted or refused to act on grounds generally applicable to the Class, making appropriate injunctive and declaratory relief with respect to the Class as a whole. Moreover, Defendants’ actions described herein may be viewed as part of a
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consistent pattern of activity that has been established under a regulatory scheme that is common to all members of the Class.
50. The questions of law and fact common to the members of the Class predominate over any questions affecting only individual members, and a class action is superior to any other available method for the fair and efficient adjudication of the controversy presented here.
B. The Disability Sub-Class 51. Plaintiff brings a claim under Section 504 of the Rehabilitation Act on
behalf of himself and, pursuant to Rules 23(a) and 23(b)(1)-(3) of the Federal Rules of Civil Procedure, on behalf of all prisoners who have been denied access to the programs, services, facilities, and activities at Rivers because of Defendants’ failures to diagnose, monitor, treat and/or accommodate their serious medical conditions, in violation of Section 504 of the Rehabilitation Act (“the Sub-Class”). As a result of their confinement at Rivers, members of the Sub-Class, including Plaintiff, have been, are, and will be subjected to violations of their legal rights as described in this Complaint. Plaintiff represents a class of qualified persons seeking declaratory and injunctive relief to correct or eliminate Defendants’ organizations, systems, policies, practices, and institutional conditions that deprive them of their rights under Section 504 of the Rehabilitation Act.
52. Plaintiff’s action meets the requirements for certification as a sub-class pursuant to Fed. R. Civ. P. 23(c)(4).
53. Upon information and belief, a substantial percentage of the men at Rivers suffer from severe impairments that substantially limit one or more major life activities. Each of these persons is a “qualified individual with a disability” under Section 504 of
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the Rehabilitation Act, as amended, and is represented by Plaintiff. Like the Class, the proposed Sub-Class is so numerous and fluid that joinder of all members is impracticable.
54. All Sub-Class members are equally subject to the conditions described in this Complaint, and common questions of law and fact exist as to all Sub-Class members. These common questions include, but are not limited to: (a) whether Defendants systemically exclude Sub-Class members from access to, participation in, and the benefits of, any program, service, facility, or activity at Rivers solely by reason of their disabilities; (b) whether Defendants systematically deny access to, participation in, and the benefits of, any part of Rivers or its programs, services, facilities, or activities to SubClass members solely by reason of their disabilities; (c) whether Defendants have subjected Sub-Class members to discrimination solely by reason of their disabilities; and (d) whether Defendants have violated Section 504 of the Rehabilitation Act.
55. The organizations, systems, policies, practices, and institutional conditions that form the factual basis of the Rehabilitation Act claim are common to all members of the Sub-Class, and the relief sought will apply to all of them. Each member of the SubClass has a common interest in preventing the recurrence of the wrongful conduct described herein.
56. Plaintiff’s claims are typical of the claims of the Sub-Class. Plaintiff is suffering from serious mental and/or physical impairments typical of the Sub-Class as a whole. Plaintiff and the Sub-Class he represents have been directly and similarly injured by Defendants’ prison-wide unlawful organizations, systems, policies, practices, and institutional conditions with respect to health care at Rivers, as demonstrated by the
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detailed account provided by Plaintiff and the detailed accounts of other prisoners provided above.
57. Plaintiff will fairly and adequately represent the interests of the Sub-Class. Plaintiff has no interests separate from the Sub-Class, and seeks no relief in this action other than the relief sought on behalf of the Sub-Class and the Class. Plaintiff’s counsel are experienced in the protection and enforcement of the legal rights of prisoners.
58. The prosecution of separate actions by individual members of the SubClass would create a risk of inconsistent and varying adjudications that would establish incompatible standards of conduct for the Defendants.
59. The prosecution of separate actions by individual members of the SubClass would create a risk of adjudications with respect to individual members that would, as a practical matter, substantially impair the ability of other members to protect their interests.
60. Defendants have acted or refused to act on grounds generally applicable to the Sub-Class, making appropriate injunctive and declaratory relief with respect to the Sub-Class as a whole. Moreover, Defendants’ actions described herein may be viewed as part of a consistent pattern of activity that has been established under a regulatory scheme that is common to all members of the Sub-Class.
61. The questions of law and fact common to the members of the Sub-Class predominate over any questions affecting only individual members, and a class action is superior to any other available method for the fair and efficient adjudication of the controversy presented here.
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CLAIMS FOR RELIEF First Claim for Relief
(Constitutional Violations—All Defendants) 62. Plaintiff realleges and incorporates by reference all facts set forth in the previous paragraphs of this Complaint. 63. Both Defendants GEO and the BOP know of and have disregarded the substantial risk of serious harm to Plaintiff’s health and safety that is created by the open and notorious health care delivery failures at Rivers. 64. Defendants’ deliberate indifference to Plaintiff’s serious medical, dental, and mental health needs has caused and continues to cause avoidable pain, mental suffering, and deterioration of Plaintiff’s health. In some instances, Defendants conduct has resulted in serious physical injury, and, upon information and belief, premature death. 65. Defendants’ organizations, systems, policies, procedures, practices, acts, and omissions all evidence and constitute cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution. 66. Defendants’ organizations, systems, policies, procedures, practices, acts, and omissions place Plaintiff and Class members at unreasonable, continuing, and foreseeable risk of developing or exacerbating serious medical, dental, and mental health problems, and of suffering needless pain, injury, and premature death. 67. As a proximate result of Defendants’ organizations, systems, policies, procedures, practices, acts, and omissions, Plaintiff and the Class have suffered and will continue to suffer immediate and irreparable injury, including physical, psychological and emotional injury, and the risk of premature death.
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68. Because they have undertaken the government’s Constitutional duty to provide adequate medical care to prisoners in their custody, Defendants GEO and BOP were and continue to be government actors with respect to all of the actions and omissions complained of herein.
69. By virtue of his employment by the United States government, Defendant LAPPIN was and continues to be a government actor acting in his official capacity with respect to all his actions and omissions complained of herein.
70. Because Defendants GEO and the BOP know that Plaintiff and all other prisoners at Rivers live under conditions creating an unreasonable risk of future harm, but have not responded reasonably to this situation, Plaintiff seeks a preliminary and permanent injunction compelling Defendants to implement organizations, systems, policies, procedures, and practices for the delivery of constitutionally adequate medical, dental, and mental health care.
Second Claim for Relief (Violations of the Rehabilitation Act—Defendants BOP and GEO) 71. Plaintiff realleges and incorporates by reference all facts set forth in the previous paragraphs of this Complaint. 72. Plaintiff, and each member of the Sub-Class, is a “qualified individual[s] with a disability” under Section 504 of the Rehabilitation Act, as amended. 73. The Rehabilitation Act, as amended, and its regulations, prohibit recipients of federal funding and any program or activity conducted by any executive agency of the United States from discriminating against people with disabilities. The Rehabilitation Act, 29 U.S.C. § 794(a), provides, in pertinent part: “[n]o otherwise qualified individual
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with a disability . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency . . . .”
74. Defendant GEO operates a “program or activity conducted by an Executive Agency,” as the BOP is an executive agency of the United States government that procured Defendant GEO to perform prison services on its behalf at Rivers.
75. Defendants BOP and GEO make the Plaintiff’s and the Sub-Class’ access to, equal participation in, and receipt of the benefits of, the programs and activities identified above unduly burdensome solely by reason of their disabilities, in violation of the Rehabilitation Act, as amended, and its regulations.
76. Defendants BOP and GEO subject Plaintiff and the Sub-Class to discrimination solely by reason of their disabilities.
77. As a result of Defendants BOP’s and GEO’s organizations, systems, policies, practices, and institutional conditions, Plaintiff and all members of the SubClass have been and continue to be excluded from a variety of programs, services, facilities, and activities at Rivers, including but not limited to, substance abuse programs, educational programs, vocational programs, recreation activities, dining hall and other meals, yard time, visitation, discipline, telephone, emergency procedures and other programs and activities for which they are otherwise qualified. Defendants BOP and GEO provide these programs, services, facilities, and activities to individuals without disabilities under their custody and control, thereby subjecting Plaintiff and the Sub-Class to discrimination in violation of the Rehabilitation Act, as amended, and its regulations.
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78. By engaging in the conduct described above, Defendants BOP and GEO have been either intentionally discriminating against Plaintiff and the Sub-Class, or have been deliberately indifferent to the strong likelihood that their organizations, systems, policies, procedures, and practices would result in violations of federally protected rights.
79. These violations of the Rehabilitation Act by Defendants establish a claim for declaratory and injunctive relief against Defendants BOP and GEO pursuant to Section 505 of the Rehabilitation Act.
Third Claim For Relief (Negligence—Defendant GEO) 80. Plaintiff realleges and incorporates by reference all facts set forth in the previous paragraphs of this Complaint. 81. Because of the custodial relationship between GEO and the Rivers prisoners, persons incarcerated at Rivers were and are entirely dependent on GEO for medical care. As a consequence of the custodial relationship, and by virtue of GEO’s explicit contractual duty to provide medical care to inmates that is commensurate with the well-established standards of care in the community, within the broader correctional industry, and under federal law, GEO has a duty to provide reasonable medical care and treatment to the men at Rivers. 82. Through its organizations, systems, policies, practices, institutional conditions, acts, and omissions, GEO has systematically deprived the men at Rivers of adequate medical, dental and mental health care, all in breach of its duty of care to those persons. GEO’s acts and omissions constitute a breach of the standard of care owed by a reasonably prudent person in similar circumstances. Defendants GEO’s breaches include
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(a) the failure to provide access to health care services; (b) the failure to hire, train, supervise and maintain an adequate level of qualified health care staff at Rivers; (c) the failure to establish an adequate and reasonable method for distributing medication; and (d) the failure to contain or treat infectious diseases.
83. As a proximate result of Defendant GEO’s acts and omissions in breach of GEO’s duty of care, Plaintiff and the Class have suffered and will continue to suffer immediate and irreparable injury, including physical, psychological and emotional injury, and heightened risk of premature death. GEO’s negligent conduct has been and will continue to be a substantial factor in bringing about such harms, and a person of ordinary prudence could have reasonably foreseen that such harms would result.
Fourth Claim for Relief (Third-party beneficiary—Defendant GEO) 84. Plaintiff realleges and incorporates by reference all facts set forth in the previous paragraphs of this Complaint. 85. GEO and the BOP entered into the Rivers Contract with the intention of conferring a direct benefit on Plaintiff, the Class, and the Sub-Class, namely, the provision of adequate medical, dental, and mental health care. 86. GEO has breached and continues to breach its express and implied contractual obligations to Plaintiff, the Class, and the Sub-Class by failing to provide adequate health care. 87. As a direct result of GEO’s material breaches, Plaintiff, the Class, and the Sub-Class, as the intended beneficiaries of the Rivers Contract, have suffered and continue to suffer physical and mental pain and injury.
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88. The Plaintiff, the Class, and the Sub-Class have performed any and all conditions precedent to the bringing of this action, or such conditions have been waived or excused by action of GEO.
89. Because GEO’s breach is continuing in nature, and because the harm caused by this breach is irreparable, Plaintiff, the Class, and the Sub-Class are entitled to injunctive relief requiring GEO to perform its obligations to provide adequate health care under the Rivers Contract.
PRAYER FOR RELIEF WHEREFORE, the Plaintiff, the Class and the Sub-Class request that this Court grant them the following relief:
a. Declare that this suit is maintainable as a class action pursuant to Federal Rules of Civil Procedure 23(a), and 23(b)(1) – (3) as to the Class and the Sub-Class;
b. Appoint the undersigned as class counsel pursuant to Rule 23(g) of the Federal Rules of Civil Procedure;
c. Adjudge and declare that the organizations, systems, policies, practices, and conditions described above violate the rights of Plaintiff and the Class, and the Sub-Class under the Eighth Amendment to the United States Constitution;
d. Adjudge and declare that the organizations, systems, policies, practices, and conditions described above violate the rights of Plaintiff and the Sub-Class, under Section 504 of the Rehabilitation Act, as amended;
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e. Adjudge and declare that the organizations, systems, policies, practices, and conditions constitute actionable negligence;
f. Adjudge and declare that the organizations, systems, policies, practices, and conditions breach a contractual duty owed to Plaintiff, the Class and the Sub-Class;
g. Preliminarily and permanently enjoin Defendants, their agents, employees and all persons acting in concert with them, from subjecting the Plaintiff and any member of the Class or Sub-Class to the organizations, systems, policies, practices, and institutional conditions that have caused and continue to cause the delivery of constitutionally inadequate and unlawful medical, dental, and mental health services at Rivers;
h. Award Plaintiff the costs of this suit, including reasonable attorneys’ fees incurred herein;
i. Retain jurisdiction of this matter until Defendants demonstrate that they have fully complied with the orders of this Court, and that there is a reasonable assurance that Defendants will continue to comply in the future absent continuing jurisdiction; and
j. Award such other and further relief as the Court deems just and proper.
DEMAND FOR JURY TRIAL Plaintiff demands trial by jury.
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Respectfully submitted, December 9, 2009

_s/ Neil A. Riemann________________ Neil A. Riemann (NC Bar #19258) PENRY RIEMANN LLP PLLC 510 Glenwood Avenue, Suite 319 Raleigh, NC 27603 919.833.9449 (ph) 919.833.9448 (fax)
Anthony Herman (DC Bar # 424643) Donald Ridings (DC Bar # 466808) Danielle M. Estrada (DC Bar # 494517) Laura E. Schattschneider (DC Bar # 976423) COVINGTON & BURLING LLP 1201 Pennsylvania Avenue N.W. Washington, D.C. 20004 202.662.6000 (ph) 202.662.6291 (fax)
Philip J. Fornaci (DC Bar # 434824) Deborah M. Golden (DC Bar # 470578) WASHINGTON LAWYERS’ COMMITTEE FOR
CIVIL RIGHTS AND URBAN AFFAIRS 11 Dupont Circle N.W. Suite 400 Washington, D.C. 20036 202.319.1000 (ph) 202.319.1010 (fax)
Counsel for Plaintiff

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CERTIFICATE OF SERVICE I hereby certify that I have this 9th day of December, 2009, filed the foregoing using CM/ECF, which will serve all required parties by sending a Notice of Electronic Filing to all counsel of record.
_/s/ Neil A. Riemann________________ Neil A. Riemann
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 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

KEITH MATHIS et al., Plaintiffs, v.
GEO GROUP, INC. et al., Defendants.

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Civil Action No.: 07-1155 (RMU)

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Document Nos.: 5, 29

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MEMORANDUM OPINION

GRANTING THE DEFENDANTS’ MOTIONS TO TRANSFER

I. INTRODUCTION This case comes before the court on the defendants’1 motions to transfer the case to the

Eastern District of North Carolina. The plaintiffs filed a proposed class-action lawsuit on behalf

of past, present and future prisoners at Rivers Correctional Institute (“Rivers”) who are

dependent on the institution for medical, dental and mental health care. The plaintiffs claim that

the defendants, owners and operators of Rivers, failed to provide adequate care and reasonable

accommodations for disabled prisoners in violation of the Eighth Amendment to the U.S.

Constitution; the Rehabilitation Act, 29 U.S.C. §§ 791 et seq.; and state contract and tort law. In

the alternative, the defendants request that the court transfer this suit to the Eastern District of

North Carolina, the district in which the Rivers is located, because the events giving rise to the

claims occurred there, the evidence is prevalent there, and the majority of prospective witnesses

reside there. The court agrees that transferring the case furthers the interests of justice and grants

the defendants’ request.

1

Defendant Geo Group filed a motion to transfer on July 26, 2007. Approximately two months

later, defendants Federal Bureau of Prisons and its director, Harley Lappin, also filed a motion to

transfer. For ease of reference the court refers to these parties collectively as “the defendants.”

Case 2:08-ct-00021-D Document 42 Filed 02/28/08 Page 1 of 9

II. FACTUAL & PROCEDURAL BACKGROUND Title XI of the Balanced Budget Act of 1997, entitled the National Capital Revitalization and Self-Government Improvement Act of 1997 (the “Revitalization Act”), requires the Bureau of Prisons to incarcerate “at least 50 percent of the District of Columbia sentenced felony population” in “private contract facilities.” Pub. L. No. 105-33, 111 Stat. 251 (1997). Rivers is one such private contract facility, which defendant GEO Group (“GEO”) owns and operates pursuant to a contract with its co-defendant the Federal Bureau of Prisons (“BOP”). Compl. ¶ 21. In 1998, the plaintiffs allege that GEO entered into a contract with BOP to house prisoners at Rivers (the “Rivers Contract”). Id. ¶ 31. Since its opening in 2001, thousands of D.C. felony offenders have been incarcerated at Rivers, which currently houses 1,300 prisoners. Id. ¶ 32. The plaintiffs contend that the defendants have neglected their contractual obligations, which require GEO to provide medical, dental and mental health care and require the BOP to ensure that appropriate care is being provided. Id. ¶¶ 31, 33-35 (listing types of reports and other documents GEO must submit to the BOP pursuant to the Rivers Contract). On June 28, 2007, ten named plaintiffs, who are current or former prisoners at Rivers, brought suit against the defendants – GEO, the BOP and its director – on behalf of all former, present and future prisoners at Rivers. Id. ¶ 40. The plaintiffs allege that the defendants “are deliberately indifferent to Plaintiffs’ serious medical needs, [which] . . . perpetuates a health care delivery system . . . that is so grossly inadequate as to violate the legal rights of the Plaintiffs . . . .” Id. ¶ 38. Specifically, the plaintiffs assert that (1) the staffing, training and supervision of the health care system is “[w]holly insufficient”; (2) the access to health care, including access to medication, is “habitually and indiscriminately denied”; (3) there are extreme delays in receiving the medication provided; (4) there are no protocols for handling highly contagious outbreaks; (5)
2 Case 2:08-ct-00021-D Document 42 Filed 02/28/08 Page 2 of 9

there is no effective quality control procedure or adequate grievance processing department; and (6) disabled prisoners are “denied access to [] programs, services, facilities, and activities.” Id. ¶¶ 38, 51. These failures, the plaintiffs contend, violate the Eighth Amendment, the Rehabilitation Act and state contract and tort law. Id. ¶¶ 62-89. They request that the court permanently enjoin the defendants from continuing sub-standard health care practices and award monetary damages, including punitive damages and attorneys’ fees. Id. at 46-48.
GEO responded to the plaintiffs’ complaint on July 26, 2007 by filing a motion to dismiss for lack of personal jurisdiction and to transfer the case to the Eastern District of North Carolina, the district in which Rivers is located. See generally GEO Group’s Mot. to Dismiss and to Transfer (“GEO’s Mot.”). Approximately two months later, the BOP and its director, Harley Lappin, filed a motion to dismiss for lack of subject-matter jurisdiction and for failure to state a claim, or in the alternative, to transfer the case to the Eastern District of North Carolina. See generally Fed. Defs.’ Mot. The plaintiffs, in turn, filed a motion to certify the class. The court now turns to the motions to transfer.
III. ANALYSIS Generally, a court should decide questions of personal jurisdiction before questions of venue. Cameron v. Thornburgh, 983 F.2d 253, 257 n.3 (D.C. Cir. 1993) (citing Leroy v. Great W. United Corp., 443 U.S. 173 (1979)). Where a “sound prudential justification” exists, a court may consider venue without deciding the question of personal jurisdiction. Id. Accordingly, because “it provides an easier resolution of the case,” the court focuses first on the question of venue. Id.
3 Case 2:08-ct-00021-D Document 42 Filed 02/28/08 Page 3 of 9

A. Legal Standard for Venue Under 28 U.S.C. § 1391(b) and Transfer Pursuant to 28 U.S.C. § 1406(a)
Rule 12(b)(3) instructs the court to dismiss or transfer a case if venue is improper or inconvenient in the plaintiffs’ chosen forum. FED. R. CIV. P. 12(b)(3). When federal jurisdiction is not premised solely on diversity, 28 U.S.C. § 1391(b) controls venue, establishing that venue is proper in:
(1) a judicial district where any defendant resides, if all defendants reside in the same State, (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated, or (3) a judicial district in which any defendant may be found, if there is no district in which the action may otherwise be brought. 28 U.S.C. § 1391(b). If the district in which the action is brought does not meet the requirements of section 1391(b), then that district court may either dismiss, “or if it be in the interest of justice, transfer such case to any district or division in which it could have been brought.” 28 U.S.C. § 1406(a). The decision of whether dismissal or transfer is “in the interest of justice” is committed to the sound discretion of the district court. Naartex Consulting Corp. v. Watt, 722 F.2d 779, 789 (D.C. Cir. 1983). Generally, the interest of justice requires transferring such cases to the appropriate judicial district rather than dismissing them. Goldlawr, Inc. v. Heiman, 369 U.S. 463, 466-67 (1962); James v. Booz-Allen, 227 F. Supp. 2d 16, 20 (D.D.C. 2002). To transfer the action, the court must ensure as a preliminary matter that venue is proper and that the defendants are subject to personal jurisdiction in the transferee forum. Sharp Elecs. Corp. v. Hayman Cash Register Co., 655 F.2d 1228, 1230 (D.C. Cir. 1981) (per curiam); Crisler v. Schmeltzer, 1990 WL 113887, at *2 (D.D.C. July 24, 1990). The decision regarding transfer rests within the court’s sound discretion. Naartex, 722 F.2d at 789.
4 Case 2:08-ct-00021-D Document 42 Filed 02/28/08 Page 4 of 9

B. The Court Grants the Defendants’ Motions to Transfer The plaintiffs do not contest that venue is proper in the Eastern District of North Carolina. They, however, chose to file this suit in the District of Columbia, and usually a strong presumption exists in favor of the plaintiffs’ choice of forum. Piper Aircraft Co. v. Reyno, 454 U.S. 235, 255-56 (1981). But this preference is not insurmountable, and here, it is entitled to less weight given the posture of many of the plaintiffs as out-of-state prisoners seeking injunctive and declaratory relief. See Compl. at 46-48; see also Young v. Dir., U.S. Bureau of Prisons, 367 F.2d 331, 332 (D.C. Cir. 1966) (holding that “declaratory judgment actions brought by inmates not confined in the District of Columbia, not sentenced in the District of Columbia, and seeking resolution of issues in no way related to this jurisdiction . . . should be transferred as a matter of course”). Although the plaintiffs are correct in stating that the standard in Young – requiring transfer “absent extraordinary circumstances” – does not apply in this case because the plaintiffs were sentenced in the District of Columbia, Pls.’ Opp’n to GEO’s Mot. at 15, the interests analyzed by the court in Young favor transfer in this case. These interests are discussed below.
1. Availability of Witnesses “Courts have consistently transferred actions when the majority of witnesses live near the transferee forum . . . .” Claasen v. Brown, 1996 WL 79490, at *6 (D.D.C. Feb. 16, 1996). Indeed, “[t]he most critical factor to examine under 28 U.S.C. § 1404(a) is the convenience of the witnesses.” Chung v. Chrysler Corp., 903 F. Supp. 160, 164 (D.D.C. 1995). Although at
5 Case 2:08-ct-00021-D Document 42 Filed 02/28/08 Page 5 of 9

least two of the plaintiffs currently reside in the District of Columbia, several2 of the plaintiffs continue to be incarcerated at Rivers, and the class the plaintiffs seek to represent includes “past, current, and future prisoners of Rivers . . . .” Compl. ¶ 40. The plaintiffs recognize that there are “currently approximately 1,300 men at Rivers, each of whom depends upon Defendants to receive needed medical, dental, and mental health care while incarcerated.” Id. ¶ 42. Such a large number of potential plaintiffs, including several of the named plaintiffs, located in the Eastern District of North Carolina weighs in favor of transfer. Joyner v. District of Columbia, 267 F. Supp. 2d 15, 20-21 (D.D.C. 2003) (transferring a case because “the plaintiff’s claim will require testimony or files that are most easily obtained at or near the place of incarceration”).
The plaintiffs argue that the inconvenience of transporting prisoners should be disregarded if the prisoners choose the District of Columbia as their preferred forum. Pls.’ Opp’n to GEO’s Mot. at 16. The plaintiffs cite Starnes v. McGuire to support this proposition, but in Starnes, this Circuit adopts the opposite view: that “[a] prisoner cannot eliminate [the difficulties of prisoner transportation] by stating his preference for this forum.” Starnes v. McGuire, 512 F.2d 918, 928 (D.C. Cir. 1974). In adopting this view, the court explicitly rejects the argument that a prisoner “should be able to force the court to ignore such inconveniences” and concludes “that the greater ease with which federal officials can travel to the prison to give evidence, as opposed to the difficulties of transporting the prisoner, is an appropriate factor to be

2

The federal defendants submitted an affidavit by James Schluter, an Administrative Remedy

Specialist for the Federal Bureau of Prisons. Fed. Defs.’ Mot. to Dismiss or in the Alternative to

Transfer, Ex. 1. As of September 13, 2007, Schluter reported that plaintiff Keith Mathis’s

projected release date is February 15, 2008; plaintiff David Rogers remained in custody pending a

court hearing; plaintiff Benjamin Hamilton’s projected release date is January 31, 2020; and

plaintiff Jimmie Fowler has been transferred to FCI Petersburg, and his projected release date is

July 13, 2009. Id.

6 Case 2:08-ct-00021-D Document 42 Filed 02/28/08 Page 6 of 9

considered . . . .” Id. at 928. Consequently, the plaintiffs’ argument is unavailing, and their use of Starnes is both perplexing and troubling.
The plaintiffs also argue that two of the three defendants are located in the District of Columbia. While this is technically true, the number of persons employed by the defendants with relevant information to the plaintiffs’ claims is far greater in the Eastern District of North Carolina than in the District of Columbia. For example, the individuals responsible for (1) denying the prisoners’ medical requests,3 (2) confiscating medicine and medical devices,4 and (3) addressing prisoners’ complaints5 were all located at Rivers. Plainly then, “the balance of convenience is strongly in favor of the defendant[s].” Gross v. Ownen, 221 F.2d 94, 95 (D.C. Cir. 1955).
2. Claims Arose in Eastern District of North Carolina The plaintiffs argue that their claims arise out of conduct in both the District of Columbia and in the Eastern District of North Carolina. Pls.’ Opp’n to GEO’s Mot. at 16. They contend that “the actions giving rise to th[e] unlawful conduct include acts and omissions that occurred in the District of Columbia,” referencing the Rivers Contract requiring GEO to provide adequate

3

The plaintiffs allege that a medical staff member informed a prisoner that he has “a snowball’s

chance in hell” of receiving the medical relief requested. Compl. ¶ 15. In addition, the plaintiffs

allege that a nurse dismissed a prisoner’s request for an updated prescription without examining

the prisoner’s vision because “his eyesight was fine, and . . . he didn’t need glasses.” Id. ¶ 13. In

other incidents, a doctor allegedly told a prisoner that “physical therapy services were not

provided at Rivers,” id. ¶ 17, and another prisoner was told that psychotropic medications were

discontinued or replaced because “[t]his is a business,” id. at 19. The last statement is pertinent

given the plaintiffs’ allegation that “the Rivers Contract is a fixed price contract providing for a

set payment to GEO per time period, irrespective of GEO’s costs of providing the services . . . .

Thus, to the extent that GEO is able to reduce the costs of . . . health services at Rivers, GEO’s

profits are increased.” Compl. ¶ 36.

4

The plaintiffs allege that prison staff confiscated medicine, back and knee braces, and orthopedic

shoes. Compl. ¶¶ 11, 16-17, 19.

5

The plaintiffs also allege that the defendants do not have an adequate quality-control system and

that the grievance process is grossly deficient. Compl. ¶¶ 38(h)-(i).

7 Case 2:08-ct-00021-D Document 42 Filed 02/28/08 Page 7 of 9

health care; GEO’s inadequate reporting to the BOP; and the improper oversight of the facility by the BOP. Id. The defendants dispute these connections,6 but in any event, the court determines that they are merely incidental to the plaintiffs’ claims. The gravamen of the plaintiffs’ claims that (1) “[m]edical professional staffing levels at Rivers are grossly inadequate”;7 (2) “Defendants routinely refuse to provide prisoners at Rivers with treatment for their serious chronic medical conditions”;8 and (3) “Defendants refuse to make reasonable accommodations for [prisoners with disabilities],”9 Compl. ¶¶ 3, 6, rests squarely within the Eastern District of North Carolina and has no connection with the District of Columbia.
3. Access to Evidence The plaintiffs’ allegations relate to treatment received while incarcerated at Rivers, Compl. ¶¶ 10-19, and evidence surrounding this treatment10 is located at Rivers. GEO’s Mot., Ex. 1 (“White Aff.”) ¶¶ 3-5 (stating that “an inmate’s records, including [his] Medical Records,

6

The Vice President in charge of Contract Administration for GEO, Amber Martin, declared that

the “Bureau of Prisons’ monitoring and administration of the Rivers Contract takes place at the

Rivers Correctional Institution in Winton, North Carolina” and that GEO submits all reports to a

representative from the BOP in Winton. GEO’s Reply, Ex. 2 (“Martin Decl.”) ¶¶ 6, 11.

7

The plaintiffs contend that “the lone medical doctor . . . also maintains a full-time practice in a

local community”; “[t]here is only one part-time dentist”; “[t]here are no trained dental

assistants”’; “[t]here is no physical therapist on staff or available on a contract basis”; and

“[t]here is only one part-time psychologist.” Compl. ¶ 28(a).

8

The plaintiffs assert that “Defendants routinely and knowingly fail to provide prisoners with

access to essential health care”; they are “habitually and indiscriminately denied treatment,”

which includes denials of requests for medication and for outside health care, even when GEO

Corp. is not equipped to handle the prisoner’s condition. Compl. ¶¶ 28(b)-(d). As to the chronic

conditions, the plaintiffs insist that GEO Corp. fails to “provide appropriate facilities,” “to

instruct and assist prisoners in following [medication regimes],” to properly administer

medications, “to adequately monitor and treat secondary infections” and “to provide physical

therapy treatment.” Id. ¶¶ 28(f)-(g).

9

See supra note 5.

10

This includes records of denials of requests for medical treatment, records of confiscated medical

items, and records of the frequency and type of treatment provided to prisoners. Compl. ¶¶ 11,

16.

8 Case 2:08-ct-00021-D Document 42 Filed 02/28/08 Page 8 of 9

are maintained at Rivers while the inmate is incarcerated there”). Furthermore, evidence as to the accessibility of facilities to disabled inmates in and around Rivers will necessarily be taken from the Rivers location. Compl. ¶¶ 11-12, 14. Even the policies, requests, reports and invoices sent to the BOP pursuant to GEO’s obligations under the Rivers Contract are located at Rivers. GEO’s Reply at 10 (stating that “the administration, monitoring, and oversight of the Rivers Contract are handled by individuals located at Rivers Correctional Institute”); Compl. ¶ 34 (detailing GEO Corp.’s obligations to the BOP under the Rivers Contract). Accordingly, judicial economy is best served by transferring this case to the Eastern District of North Carolina.
4. Public Interests The parties dispute a number of public interest factors including the applicable law, the interest of the respective forums and the congestion of the court dockets. GEO’s Mot. at 9-12; Pls.’ Opp’n to GEO’s Mot. at 18-21. In the court’s view, these factors do not heavily sway for or against transfer. The court does note, however, that there continues to be “no sound reason” to litigate all actions against federal officials in the District of Columbia, as this would unnecessarily clog the court’s docket. Young, 367 F.3d at 333 n.7.
IV. CONCLUSION For the foregoing reasons the court grants the defendants’ motions to transfer. An order consistent with the Memorandum Opinion is separately and contemporaneously issued this 28th day of February 2008.
RICARDO M. URBINA United States District Judge
9 Case 2:08-ct-00021-D Document 42 Filed 02/28/08 Page 9 of 9

 
 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

KEITH MATHIS, et al.,
v. GEO GROUP INC., et al.,

Plaintiffs, Defendants.

) ) ) ) ) Case No. 1:07-cv-01155-RMU ) ) ) ) )

PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION

Plaintiffs, by counsel, hereby respectfully move the Court for an order certifying

this action as a class action pursuant to Rule 23 of the Federal Rules of Civil Procedure, on

behalf of (1) a class of former, current and future prisoners in the custody of the Federal Bureau

of Prisons (“BOP”), and incarcerated at the Rivers Correctional Institution (“Rivers”), who,

during their incarceration at Rivers, depend on the organizations, systems, policies, and practices

of Defendants for their receipt of medical, dental, and mental health care, and (2) a sub-class of

former, current, and future disabled prisoners in the custody of the BOP and incarcerated at

Rivers, who have been denied access to programs, services, facilities, and activities at Rivers as a

consequence of Defendants’ failures to adequately diagnose, monitor, treat and/or accommodate

their disabilities.

As discussed in the accompanying memorandum, this action meets the

requirements for class certification under Rules 23(a) and 23(b) of the Federal Rules of Civil

Procedure, and the interests of justice would best be served by adjudication of the proposed class

members’ claims in a single action.

Case 2:08-ct-00021-D Document 31 Filed 09/25/07 Page 1 of 3

Donald L. Kahl (DC Bar # 489472) Philip Fornaci (DC Bar # 434824) Deborah Golden (DC Bar # 470578) Ivy A. Lange (DC Bar # 488147) WASHINGTON LAWYERS’ COMMITTEE FOR
CIVIL RIGHTS AND URBAN AFFAIRS 11 Dupont Circle N.W. Suite 400 Washington, D.C. 20036 202.319.1000 (ph) 202.319.1010 (fax)
September 25, 2007

Respectfully submitted,
s/ Danielle M. Estrada__________ Anthony Herman (DC Bar # 424643) Donald J. Ridings Jr. (DC Bar # 466808) Danielle M. Estrada (DC Bar # 494517) COVINGTON & BURLING LLP 1201 Pennsylvania Avenue N.W. Washington, D.C. 20004 202.662.6000 (ph) 202.778.6000 (fax)
Counsel for Plaintiffs

2 Case 2:08-ct-00021-D Document 31 Filed 09/25/07 Page 2 of 3

LOCAL RULE 7(m) STATEMENT Counsel for Plaintiffs attempted to contact counsel for Defendants seeking their position on this matter, but had not receive a response by the time this motion was filed.

Respectfully submitted,

Donald L. Kahl (DC Bar # 489472) Philip Fornaci (DC Bar # 434824) Deborah Golden (DC Bar # 470578) Ivy A. Lange (DC Bar # 488147) WASHINGTON LAWYERS’ COMMITTEE FOR
CIVIL RIGHTS AND URBAN AFFAIRS 11 Dupont Circle N.W. Suite 400 Washington, D.C. 20036 202.319.1000 (ph) 202.319.1010 (fax)
September 25, 2007

s/ Danielle M. Estrada__________ Anthony Herman (DC Bar # 424643) Donald J. Ridings Jr. (DC Bar # 466808) Danielle M. Estrada (DC Bar # 494517) COVINGTON & BURLING LLP 1201 Pennsylvania Avenue N.W. Washington, D.C. 20004 202.662.6000 (ph) 202.778.6000 (fax)
Counsel for Plaintiffs

3 Case 2:08-ct-00021-D Document 31 Filed 09/25/07 Page 3 of 3

 
 CLOSED,JURY,TYPE−L
U.S. District Court District of Columbia (Washington, DC) CIVIL DOCKET FOR CASE #: 1:07−cv−01155−RMU

MATHIS et al v. GEO GROUP INC. et al Assigned to: Judge Ricardo M. Urbina Cause: 42:1983 Civil Rights Act
Plaintiff KEITH MATHIS

Date Filed: 06/28/2007 Date Terminated: 02/28/2008 Jury Demand: Plaintiff Nature of Suit: 440 Civil Rights: Other Jurisdiction: U.S. Government Defendant
represented by Anthony Herman COVINGTON & BURLING LLP 850 Tenth Street, NW One City Center Washington, DC 20001 (202) 662−5280 Fax: (202) 662−6291 Email: aherman@cov.com LEAD ATTORNEY
Danielle M. Estrada COVINGTON & BURLING LLP 850 Tenth Street, NW One City Center Washington, DC 20001 (202) 662−5331 Fax: (202) 778−5331 Email: destrada@cov.com LEAD ATTORNEY
Donald Lee Kahl WASHINGTON LAWYERS' COMMITTEE FOR CIVIL RIGHTS & URBAN 11 Dupont Circle, NW Suite 400 Washington, DC 20036 (202) 319−1000x145 Email: don_kahl@washlaw.org LEAD ATTORNEY
Donald J. Ridings , Jr. COVINGTON & BURLING LLP 850 Tenth Street, NW One City Center Washington, DC 20001 (202) 662−6000 Fax: (202) 778−6000 Email: dridings@cov.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ivy Ann Finkenstadt LEGAL AID JUSTICE CENTER 6066 Leesburg Pike Suite 520 Falls Church, VA 22041 (703) 778−3450 Fax: (703) 778−3454 Email: ivy@justice4all.org LEAD ATTORNEY

Plaintiff REON HOLLOWAY
Plaintiff DAVID ROGERS

Philip J. Fornaci WASHINGTON LAWYERS' COMMITTEE FOR CIVIL RIGHTS & URBAN AFFAIRS 700 14th Street, NW Suite 400 Washington, DC 20005 (202) 319−1000 x133 Fax: (202) 319−1010 Email: phil_fornaci@washlaw.org LEAD ATTORNEY
represented by Anthony Herman (See above for address) LEAD ATTORNEY
Danielle M. Estrada (See above for address) LEAD ATTORNEY
Donald Lee Kahl (See above for address) LEAD ATTORNEY
Donald J. Ridings , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ivy Ann Finkenstadt (See above for address) LEAD ATTORNEY
Philip J. Fornaci (See above for address) LEAD ATTORNEY
represented by Anthony Herman (See above for address) LEAD ATTORNEY
Danielle M. Estrada (See above for address) LEAD ATTORNEY
Donald Lee Kahl (See above for address) LEAD ATTORNEY
Donald J. Ridings , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ivy Ann Finkenstadt (See above for address) LEAD ATTORNEY
Philip J. Fornaci (See above for address) LEAD ATTORNEY

Plaintiff BENJAMIN HAMILTON
Plaintiff CARL BUTLER
Plaintiff HAROLD ROBINSON

represented by Anthony Herman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Danielle M. Estrada (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Donald Lee Kahl (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Donald J. Ridings , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ivy Ann Finkenstadt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Philip J. Fornaci (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Anthony Herman (See above for address) LEAD ATTORNEY
Danielle M. Estrada (See above for address) LEAD ATTORNEY
Donald Lee Kahl (See above for address) LEAD ATTORNEY
Donald J. Ridings , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ivy Ann Finkenstadt (See above for address) LEAD ATTORNEY
Philip J. Fornaci (See above for address) LEAD ATTORNEY
represented by Anthony Herman (See above for address) LEAD ATTORNEY

Plaintiff CHARLES LEWIS
Plaintiff JOHN DOE CORPORATION

Danielle M. Estrada (See above for address) LEAD ATTORNEY
Donald Lee Kahl (See above for address) LEAD ATTORNEY
Donald J. Ridings , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ivy Ann Finkenstadt (See above for address) LEAD ATTORNEY
Philip J. Fornaci (See above for address) LEAD ATTORNEY
represented by Anthony Herman (See above for address) LEAD ATTORNEY
Danielle M. Estrada (See above for address) LEAD ATTORNEY
Donald Lee Kahl (See above for address) LEAD ATTORNEY
Donald J. Ridings , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ivy Ann Finkenstadt (See above for address) LEAD ATTORNEY
Philip J. Fornaci (See above for address) LEAD ATTORNEY
represented by Anthony Herman (See above for address) LEAD ATTORNEY
Danielle M. Estrada (See above for address) LEAD ATTORNEY
Donald Lee Kahl (See above for address) LEAD ATTORNEY
Donald J. Ridings , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff JOHN ROE
Plaintiff JIMMIE FOWLER Each Individually and on behalf of all others similarly situated
V.

Ivy Ann Finkenstadt (See above for address) LEAD ATTORNEY
Philip J. Fornaci (See above for address) LEAD ATTORNEY
represented by Anthony Herman (See above for address) LEAD ATTORNEY
Danielle M. Estrada (See above for address) LEAD ATTORNEY
Donald Lee Kahl (See above for address) LEAD ATTORNEY
Donald J. Ridings , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ivy Ann Finkenstadt (See above for address) LEAD ATTORNEY
Philip J. Fornaci (See above for address) LEAD ATTORNEY
represented by Anthony Herman (See above for address) LEAD ATTORNEY
Danielle M. Estrada (See above for address) LEAD ATTORNEY
Donald Lee Kahl (See above for address) LEAD ATTORNEY
Donald J. Ridings , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ivy Ann Finkenstadt (See above for address) LEAD ATTORNEY
Philip J. Fornaci (See above for address) LEAD ATTORNEY

Defendant GEO GROUP INC. A Florida for−profit corporation
Defendant FEDERAL BUREAU OF PRISONS UNITED STATES OF AMERICA, through its department,
Defendant HARLEY G. LAPPIN in his official capacity as Director of the United States Bureau of Prisons

represented by Deborah J. Israel WOMBLE BOND DICKINSON (US) LLP 1200 19th Street, NW Suite 500 Washington, DC 20036 (202) 857−4466 Fax: (202) 261−0034 Email: Deborah.Israel@wbd−us.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Karen L. Melnik U.S. ATTORNEY'S OFFICE 555 Fourth Street, NW Room E4112 Washington, DC 20530 (202) 307−0338 Email: karen.melnik@usdoj.gov LEAD ATTORNEY
Kathryn L. Wyer U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch 1100 L Street, NW Washington, DC 20005 (202) 616−8475 Fax: (202) 616−8470 Email: kathryn.wyer@usdoj.gov LEAD ATTORNEY
represented by Karen L. Melnik (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kathryn L. Wyer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 06/28/2007
06/28/2007 06/28/2007

# Docket Text
1 MOTION for Leave to Proceed by Pseudonym by CARL BUTLER, HAROLD ROBINSON, CHARLES LEWIS, JOHN DOE, JOHN ROE, JIMMIE FOWLER, KEITH MATHIS, REON HOLLOWAY, DAVID ROGERS, BENJAMIN HAMILTON (Attachments: # 1 Text of Proposed Order, # 2 Memordum in Support)(jf, ). Modified on 7/2/2007 (jf, ). (Entered: 07/02/2007)
2 ORDER temporarily granting 1 MOTION for Leave to Proceed by Pseudonym. Signed by Judge Royce C. Lamberth on June 28, 2007. (See order for further details). (jf, ) (Entered: 07/02/2007)
3 COMPLAINT against GEO GROUP INC., FEDERAL BUREAU OF PRISONS, HARLEY LAPPIN ( Filing fee $ 350, receipt number 4616005174) filed by CARL BUTLER, HAROLD ROBINSON, CHARLES LEWIS, JOHN DOE, JOHN ROE, JIMMIE FOWLER, KEITH MATHIS, REON HOLLOWAY, DAVID ROGERS, BENJAMIN HAMILTON. (Attachments: # 1 Civil Cover Sheet)(jf, ) (Entered: 07/02/2007)

06/28/2007 07/02/2007 07/02/2007 07/26/2007
07/26/2007 08/08/2007 08/09/2007 08/09/2007 08/09/2007
08/10/2007 08/17/2007 08/20/2007 08/20/2007 08/20/2007 08/20/2007 08/20/2007 08/20/2007
08/20/2007 08/20/2007

SUMMONS Not Issued as to GEO GROUP INC., FEDERAL BUREAU OF PRISONS, HARLEY LAPPIN (jf, ) (Entered: 07/02/2007)
Summons (6) Issued as to GEO GROUP INC.(2), FEDERAL BUREAU OF PRISONS (2), HARLEY LAPPIN (2). (jf, ) Modified on 7/2/2007 (jf, ). (Entered: 07/02/2007)
SUMMONS (2) Issued as to FEDERAL BUREAU OF PRISONS, U.S. Attorney and U.S. Attorney General. (jf, ) (Entered: 07/02/2007)
4 MOTION to Dismiss and Motion to Transfer by GEO GROUP INC. (Attachments: # 1 Statement of Facts # 2 Exhibit Affadavit of John White# 3 Exhibit Jackson v. FBOP Caselaw# 4 Exhibit McCullough v. BOP Caselaw# 5 Exhibit FJC Statistics# 6 Text of Proposed Order)(Israel, Deborah) (Entered: 07/26/2007)
5 MOTION to Transfer Case by GEO GROUP INC. (See Docket Entry 4 to view document). (nmw, ) (Entered: 07/27/2007)
6 NOTICE of Appearance by Karen L. Melnik on behalf of FEDERAL BUREAU OF PRISONS, HARLEY LAPPIN (Melnik, Karen) (Entered: 08/08/2007)
7 NOTICE of Appearance by Danielle M. Estrada on behalf of all plaintiffs (Estrada, Danielle) (Entered: 08/09/2007)
8 NOTICE of Appearance by Anthony Herman on behalf of all plaintiffs (Herman, Anthony) (Entered: 08/09/2007)
9 Memorandum in opposition to re 4 MOTION to Dismiss and Motion to Transfer, 5 MOTION to Transfer Case filed by CARL BUTLER, HAROLD ROBINSON, CHARLES LEWIS, JOHN DOE, JOHN ROE, JIMMIE FOWLER, KEITH MATHIS, REON HOLLOWAY, DAVID ROGERS, BENJAMIN HAMILTON. (Attachments: # 1 Affidavit of Danielle M. Estrada# 2 Exhibit 1 Part 1# 3 Exhibit 1 Part 2# 4 Exhibit 2# 5 Exhibit 3# 6 Text of Proposed Order)(Estrada, Danielle) (Entered: 08/09/2007)
10 NOTICE of Appearance by Donald Lee Kahl on behalf of all plaintiffs (Kahl, Donald) (Entered: 08/10/2007)
11 NOTICE of Appearance by Ivy Ann Lange on behalf of all plaintiffs (Lange, Ivy) (Entered: 08/17/2007)
12 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. GEO GROUP INC. served on 7/5/2007, answer due 7/25/2007 (Estrada, Danielle) (Entered: 08/20/2007)
13 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the US Attorney. FEDERAL BUREAU OF PRISONS served on 7/5/2007, answer due 9/4/2007 (Estrada, Danielle) (Entered: 08/20/2007)
14 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the US Attorney. HARLEY LAPPIN served on 7/5/2007, answer due 9/4/2007 (Estrada, Danielle) (Entered: 08/20/2007)
15 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to (Attachments: # 1 Exhibit Receipt for Certified Mail)(Estrada, Danielle) (Entered: 08/20/2007)
16 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to (Attachments: # 1 Exhibit Receipt for Certified Mail)(Estrada, Danielle) (Entered: 08/20/2007)
17 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on Attorney General. Date of Service Upon Attorney General 07/06/2007. (Attachments: # 1 Exhibit Receipt for Certified Mail)(Estrada, Danielle) Modified on 8/20/2007 (jf, ). (Entered: 08/20/2007)
18 ENTERED IN ERROR.....Memorandum in opposition to re 4 MOTION to Dismiss and Motion to Transfer filed by GEO GROUP INC.. (Attachments: # 1 Exhibit # 2 Exhibit)(Israel, Deborah) Modified on 8/21/2007 (nmw, ). (Entered: 08/20/2007)
19 ENTERED IN ERROR.....Memorandum in opposition to re 4 MOTION to Dismiss and Motion to Transfer filed by GEO GROUP INC.. (Attachments: # 1 Exhibit # 2

08/20/2007 08/20/2007 08/21/2007 08/21/2007 08/21/2007 08/21/2007
08/23/2007 08/23/2007 08/23/2007 08/24/2007 08/28/2007 08/31/2007
09/12/2007 09/18/2007

Exhibit)(Israel, Deborah) Modified on 8/21/2007 (nmw, ). (Entered: 08/20/2007)
20 ERRATA regarding e−mail notification for Docket Entry #17 by CARL BUTLER, HAROLD ROBINSON, CHARLES LEWIS, JOHN DOE, JOHN ROE, JIMMIE FOWLER, KEITH MATHIS, REON HOLLOWAY, DAVID ROGERS, BENJAMIN HAMILTON. (Estrada, Danielle) (Entered: 08/20/2007)
21 ENTERED IN ERROR.....REPLY to opposition to motion re 4 MOTION to Dismiss and Motion to Transfer, 5 MOTION to Transfer Case filed by GEO GROUP INC. (Attachments: # 1 Exhibit 1# 2 Exhibit 2)(nmw, ) Modified on 8/22/2007 (ztd, ). (Entered: 08/21/2007)
ENTERED IN ERROR.....NOTICE OF CORRECTED DOCKET ENTRY: Docket Entries 18 and 19 were entered in error as an opposition and was refiled as Docket Entry 21 . (nmw, ) Modified on 8/22/2007 (ztd, ). (Entered: 08/21/2007)
22 NOTICE of Appearance by Philip J. Fornaci on behalf of all plaintiffs (Fornaci, Philip) (Entered: 08/21/2007)
23 REPLY to opposition to motion re 4 MOTION to Dismiss and Motion to Transfer, 5 MOTION to Transfer Case filed by GEO GROUP INC.. (Attachments: # 1 Exhibit 1# 2 Exhibit 2)(td, ) (Entered: 08/22/2007)
NOTICE OF CORRECTED DOCKET ENTRY: re 19 Memorandum in Opposition, 21 Reply to opposition to Motion, Notice of Corrected Docket Entry, 18 Memorandum in Opposition was entered in error per counsel and refiled as Docket Entry 23 . Docket Entry 19 was the corrected document, however, the wrong event was selected. (td, ) Modified on 8/23/2007 (nmw, ). (Entered: 08/22/2007)
24 NOTICE of Subtitution of Counsel by Kathryn L. Wyer on behalf of FEDERAL BUREAU OF PRISONS, HARLEY LAPPIN Substituting for attorney Karen L. Melnik (Wyer, Kathryn) (Entered: 08/23/2007)
25 Unopposed MOTION for Extension of Time to File Answer or Otherwise Plead by FEDERAL BUREAU OF PRISONS, HARLEY LAPPIN (Attachments: # 1 Text of Proposed Order)(Wyer, Kathryn) (Entered: 08/23/2007)
MINUTE ORDER granting 25 Unopposed Motion for Extension of Time. The federal defendants' response to the complaint is due on or before September 18, 2007. Signed by Judge Ricardo M. Urbina on 8/23/07. (lcrmu2) (Entered: 08/23/2007)
ENTER IN ERROR.....Set Deadlines/Hearings: Factual discovery will conclude on 11/30/07, expert reports are due on 11/30/07 and 12/20/07 respectively, and expert discovery will close on 01/15/08 (jwd ) Modified on 8/28/2007 (jwd, ). (Entered: 08/24/2007)
NOTICE OF CORRECTED DOCKET ENTRY: Please disregard the Set Deadlines/Hearing Entry enter in this case on 8/24/2007. This entry should have been for a different civil action. ENTER IN ERROR has been place in front of the 8/24/2007 Set Deadlines/Hearing entry.(jwd) (Entered: 08/28/2007)
26 MOTION for Leave to File Surreply by CARL BUTLER, HAROLD ROBINSON, CHARLES LEWIS, JOHN DOE, JOHN ROE, JIMMIE FOWLER, KEITH MATHIS, REON HOLLOWAY, DAVID ROGERS, BENJAMIN HAMILTON (Attachments: # 1 Surreply# 2 Exhibit A to Exhibit declaration of Deborah Golden# 3 Exhibit Exhibit 2 Declaration of Deborah Golden# 4 Text of Proposed Order granting leave to file surreply)(Lange, Ivy) (Entered: 08/31/2007)
27 Memorandum in opposition to re 26 MOTION for Leave to File Surreply filed by GEO GROUP INC.. (Attachments: # 1 Text of Proposed Order Order)(Israel, Deborah) (Entered: 09/12/2007)
28 MOTION to Dismiss by FEDERAL BUREAU OF PRISONS, HARLEY LAPPIN (Attachments: # 1 Text of Proposed Order # 2 Exhibit 1 − Declaration of James R Schluter# 3 Exhibit 1 attachment − Document A# 4 Exhibit 1 attachment −Document B# 5 Exhibit 1 attachment − Document C# 6 Exhibit 1 attachment − Document D# 7 Exhibit 1 attachment − Document E# 8 Exhibit 1 attachment − Document F# 9 Exhibit 1 attachment − Document G# 10 Exhibit 1 attachment − Document H)(Wyer, Kathryn)

09/18/2007 09/24/2007
09/25/2007 09/25/2007 09/25/2007
10/04/2007 10/05/2007
10/05/2007 10/05/2007 10/05/2007 10/05/2007 10/26/2007
10/29/2007 10/30/2007

(Entered: 09/18/2007)
29 MOTION (in the alternative) to Transfer Case by FEDERAL BUREAU OF PRISONS, HARLEY LAPPIN. (See Docket Entry 28 to view document). (nmw, ) (Entered: 09/19/2007)
30 Consent MOTION for Extension of Time to File Response/Reply as to 28 MOTION to Dismiss, 29 MOTION to Transfer Case by CARL BUTLER, HAROLD ROBINSON, CHARLES LEWIS, JOHN DOE, JOHN ROE, JIMMIE FOWLER, KEITH MATHIS, REON HOLLOWAY, DAVID ROGERS, BENJAMIN HAMILTON (Attachments: # 1 Text of Proposed Order)(Estrada, Danielle) (Entered: 09/24/2007)
MINUTE ORDER granting 30 Consent Motion for Extension of Time to File Response/Reply. It is hereby ORDERED that the plaintiffs' response to the federal defendants' motion to dismiss is due on or before October 26, 2007. Signed by Judge Ricardo M. Urbina on 9/25/07. (lcrmu2) (Entered: 09/25/2007)
Set Deadlines/Hearings: plaintiffs' response to the federal defendants' motion to dismiss due by 10/26/2007.(jwd) (Entered: 09/25/2007)
31 MOTION to Certify Class by CARL BUTLER, HAROLD ROBINSON, CHARLES LEWIS, JOHN DOE, JOHN ROE, JIMMIE FOWLER, KEITH MATHIS, REON HOLLOWAY, DAVID ROGERS, BENJAMIN HAMILTON (Attachments: # 1 Memorandum of Points and Authorities in Support of Motion for Class Certification# 2 Text of Proposed Order)(Estrada, Danielle) (Entered: 09/25/2007)
32 Unopposed MOTION for Extension of Time to File Response/Reply as to 31 MOTION to Certify Class by FEDERAL BUREAU OF PRISONS, HARLEY LAPPIN (Attachments: # 1 Text of Proposed Order)(Wyer, Kathryn) (Entered: 10/04/2007)
MINUTE ORDER granting 32 the Federal Defendants' Unopposed Motion for Extension of Time to File Response/Reply. It is hereby ordered that the Federal Defendants' response to the plaintiffs' motion for class certification is due on or before November 2, 2007. Signed by Judge Ricardo M. Urbina on 10/5/07. (lcrmu2) (Entered: 10/05/2007)
Set/Reset Deadlines: Response to motion for class certification due by 11/2/2007 (mpt, ) (Entered: 10/05/2007)
33 Unopposed MOTION for Extension of Time to File Response/Reply as to 31 MOTION to Certify Class by GEO GROUP INC. (Attachments: # 1 Text of Proposed Order Order)(Israel, Deborah) (Entered: 10/05/2007)
MINUTE ORDER granting 33 the Defendant's Unopposed Motion for Extension of Time to File Response/Reply. It is hereby ordered that GEO Group's response to the plaintiffs' motion for class certification is due on or before November 2, 2007. Signed by Judge Ricardo M. Urbina on 10/5/07. (lcrmu2) (Entered: 10/05/2007)
Set/Reset Deadlines: Response to motion for class certification due by 11/2/2007 (mpt, ) (Entered: 10/05/2007)
34 Memorandum in opposition to re 28 MOTION to Dismiss, 29 MOTION to Transfer Case filed by CARL BUTLER, HAROLD ROBINSON, CHARLES LEWIS, JOHN DOE, JOHN ROE, JIMMIE FOWLER, KEITH MATHIS, REON HOLLOWAY, DAVID ROGERS, BENJAMIN HAMILTON. (Attachments: # 1 Text of Proposed Order # 2 Exhibit Unpublished Decisions)(Estrada, Danielle) (Entered: 10/26/2007)
35 Consent MOTION for Extension of Time to File Response/Reply as to 28 MOTION to Dismiss, 29 MOTION to Transfer Case by FEDERAL BUREAU OF PRISONS, HARLEY LAPPIN (Attachments: # 1 Text of Proposed Order)(Wyer, Kathryn) (Entered: 10/29/2007)
MINUTE ORDER granting 35 the Federal Defendants' Consent Motion for Extension of Time to File Response/Reply. It is hereby ordered that the Federal Defendants' Reply to the Plaintiffs' Opposition to the Federal Defendants' Motion to Dismiss is due on or before December 3, 2007. Signed by Judge Ricardo M. Urbina on 10/30/07. (lcrmu2) (Entered: 10/30/2007)

10/30/2007 11/02/2007
11/02/2007 11/06/2007
11/06/2007 11/06/2007 11/30/2007
12/03/2007 02/28/2008 02/28/2008 03/25/2008 06/02/2008

Set Deadlines/Hearings: ederal Defendants' Reply to the Plaintiffs' Opposition to the Federal Defendants' Motion to Dismiss is due on or before December 3, 2007 (jwd) (Entered: 10/30/2007)
36 Memorandum in opposition to re 31 MOTION to Certify Class filed by GEO GROUP INC.. (Attachments: # 1 Exhibit 1 − Brown v. Artery# 2 Exhibit 2 − Clark v. State of California# 3 Exhibit 3 − Maydak v. US of America# 4 Exhibit 4 − Williams v. Glickman# 5 Text of Proposed Order)(Israel, Deborah) Modified on 11/5/2007 (nmw, ). (Entered: 11/02/2007)
37 Memorandum in opposition to re 31 MOTION to Certify Class filed by FEDERAL BUREAU OF PRISONS, HARLEY LAPPIN. (Attachments: # 1 Text of Proposed Order)(Wyer, Kathryn) (Entered: 11/02/2007)
38 Unopposed MOTION for Extension of Time to File Response/Reply as to 31 MOTION to Certify Class by CARL BUTLER, HAROLD ROBINSON, CHARLES LEWIS, JOHN DOE, JOHN ROE, JIMMIE FOWLER, KEITH MATHIS, REON HOLLOWAY, DAVID ROGERS, BENJAMIN HAMILTON (Attachments: # 1 Text of Proposed Order)(Estrada, Danielle) (Entered: 11/06/2007)
MINUTE ORDER granting 38 Unopposed Motion for Extension of Time to File Response/Reply. It is hereby ordered that the plaintiffs' reply to the defendants' opposition to class certification is due on or before Friday, November 30, 2007. Signed by Judge Ricardo M. Urbina on 11/6/07. (lcrmu2) (Entered: 11/06/2007)
Set Deadlines/Hearings: defendants' opposition to class certification is due on or before Friday, November 30, 2007(jwd) (Entered: 11/06/2007)
39 REPLY to opposition to motion re 31 MOTION to Certify Class filed by CARL BUTLER, HAROLD ROBINSON, JOHN DOE, JOHN ROE, JIMMIE FOWLER, KEITH MATHIS, REON HOLLOWAY, DAVID ROGERS, BENJAMIN HAMILTON. (Attachments: # 1 Exhibit 1 Declaration of Danielle Estrada# 2 Exhibit A to Declaration of Danielle Estrada# 3 Exhibit B to Declaration of Danielle Estrada# 4 Exhibit 2 Unpublished Decisions# 5 Exhibit 3 Unpublished Decisions)(Estrada, Danielle) (Entered: 11/30/2007)
40 REPLY to opposition to motion re 28 MOTION to Dismiss, 29 MOTION to Transfer Case filed by FEDERAL BUREAU OF PRISONS, HARLEY LAPPIN. (Attachments: # 1 Exhibit A − Contract)(Wyer, Kathryn) (Entered: 12/03/2007)
41 MINUTE ORDER granting 5 , 29 the Defendants' Motion to Transfer Case. It is hereby ORDERED that the defendants' motion to transfer the case to the Eastern District of North Carolina is GRANTED. SO ORDERED. Signed by Judge Ricardo M. Urbina on 2/28/08. (lcrmu2) (Entered: 02/28/2008)
42 MEMORANDUM OPINION. Signed by Judge Ricardo M. Urbina on 2/28/08. (lcrmu2) (Entered: 02/28/2008)
Case transferred out to the USDC for the Eastern District of North Carolina, pursuant to Court Order entered 2/28/08. Sent to Court by electronically. (jf) (Entered: 03/25/2008)
Receipt on 5/28/08 of Transfer Papers. Other Court Number 2:08−cv−00021 sent by EASTERN DISTRICT OF NORTH CAROLINA. (jf, ) (Entered: 06/25/2008)

 
 IN THE UNITED STATES DISTRICT COURT 
 FOR THE EASTERN DISTRICT OF NORTH CAROLINA 

NORTHERN DIVISION 
 No.2:08-CT-21-D 


KEITH MATillS, et al.,

)

) 


Plaintiffs,

) 


v.

)

)

GEO GROUP, INC., et al.,

)

) 


Defendants.

) 


ORDER

Louis Calland ("Calland" or "plaintiff') is an inmate at Rivers Correctional Institution ("Rivers") and is the sole remaining plaintiff in this case. Calland contends that defendants GEO Group, Inc. ("GEO"), the Federal Bureau of Prisons ("BOP"), and Harley Lappin ("Lappin"), Director of the BOP, have violated and are violating federal and state law in connection with Calland's medical care. Calland also complains that the BOP and GEO have denied and are denying him access to programs and facilities at Rivers solely because of his disability. GEO is a private corporation that owns and operates Rivers, and the BOP has a procurement contract with GEO under which it pays GEO to house federal inmates at Rivers. Calland seeks declaratory and injunctive relief and wishes to serve as the class representative for all current and future inmates at Rivers.
On November 9, 2009, the court granted defendants' motions to dismiss Calland's amended complaint, but also granted Calland leave to amend. On December 9, 2009, Calland filed a second amended complaint. GEO, the BOP, and Lappin now move to dismiss Calland's second amended complaint for lack of subject-matter jurisdiction and failure to state a claim upon which relief can be granted. Calland has filed a motion for leave to file a third amended complaint. As explained below, GEO's motion to dismiss [D.E. 104] is granted, the BOP defendants' motion to dismiss [D.E.

Case 2:08-ct-00021-D Document 122 Filed 09/29/10 Page 1 of 14

107] is granted in part and denied in part, and Calland's motion for leave to file a third amended complaint [D.E. 114] is granted.
I.
In its November 9,2009 order, the court described the background ofthis case in detail and
thus restricts its discussion in this order to the pending motions. On December 9,2009, plaintiff filed a second amended complaint, seeking declaratory and injunctive relief. See Sec. Am. Compl.
41-42. The original complaint named multiple plaintiffs, but Calland is the only named plaintiffstill incarcerated at Rivers, and thus is the only plaintiff named in the second amended complaint. See
id. W10, 15-24; see also Mathis v. GEO Group, Inc., No. 2:0B-CT-21-D, slip op. at 2-3 (E.D.N.C.
Nov. 9, 2009).1
Plaintiff s second amended complaint contains four claims, seeks declaratory and injunctive
relief, and proposes to proceed as a class action on behalf of current and future inmates at Rivers. GEO, a private corporation that owns and operates Rivers, has a federal-government procurement contract with the BOP. The BOP pays GEO to house federal inmates at Rivers. Sec. Am. Compl.
W29-31. Calland claims that, while he has been incarcerated at Rivers, GEO, the BOP, and Lappin
have provided him inadequate medical care.2 Specifically, Calland alleges that he received
inadequate medical treatment for his arthritis, degenerative bone disease, and diabetes, resulting in poor health and severe pain. Id. ~ 10. He also claims that he is unable to access the facilities,
lin his motion for leave to file a third amended complaint, plaintiff seeks to add Gregory Terrell, another current prisoner at Rivers, as a named plaintiff"assert[ing] the same Constitutional, contract, and common law claims for the same reliefas that sought by PlaintiffCalland." PI.'s Mem. Supp.2.
2The court "focuses on Calland's claims because Calland is the sole remaining plaintiff. If Calland's claims fail, then the issues described in the [second] amended complaint concerning ... the 'other affected persons,' or the putative class members cannot revive the [second] amended complaint." See Mathis, No. 2:0B-CT-21-D, slip op. at 4 n.1 (E.D.N.C. Nov. 9,2009).
2 
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programs, services, and activities at Rivers because of his disability. See id. In his second amended complaint, Calland makes several allegations regarding the BOP's
involvement in the day-to-day operations ofRivers. The contract between OEO and BOP "vests the BOP with the power to exercise control over OEO' s personnel decisions, policies, and procedures. The BOP, in turn, is charged with monitoring and overseeing OEO's compliance with ... contract obligations." rd., 33. The contract also "provides for on-site BOP monitors at the Rivers facility, charges [the BOP monitors] with 'the technical direction ofthe performance ofall work' performed pursuant to the Rivers Contract, and requires the construction ofa 2,500-square-foot office and ten parking spaces for [BOP] exclusive use." rd., 35.
The BOP "has specific responsibility for oversight and monitoring of OEO's activities at Rivers" through the Privatization Management Branch of its Correctional Programs Division. Id. ,34. "[T]he BOP's Privatization Management Branch has received administrative complaints from prisoners, including Plaintiff, concerning the medical conditions at Rivers." Id. Calland and other prisoners have submitted "Regional Administrative Remedy Appeals to BOP's Privatization Management [B]ranch" and the BOP has rejected Calland's appeals. Id. In addition, "an on-site BOP monitor participates in the prison officer 'main line,'[3] which occurs daily." Id.' 35. Accordingly, Calland alleges that, through its on-site involvement and supervision at Rivers via the Privatization Management Branch and participation by BOP monitors in the "main line," "the BOP is aware ofand continues to disregard the risks and severe harm to prisoner health and safety detailed by Plaintiff in the Complaint[,]" "the BOP has received actual notice of the harms caused to prisoners in its custody by the grossly inadequate medical care and lack of accessible facilities at
3"During the daily 'main line,' prison staff stand together outside of the dining hall at mealtime to make themselves available for informal discussions with prisoners and to receive and address their complaints." Sec. Am. CompI., 35.
3 Case 2:08-ct-00021-D Document 122 Filed 09/29/10 Page 3 of 14

Rivers[,]" and the BOP "ha[s] actual notice ofprison complaints about the medical conditions and can get visual confirmation ofthe lack ofaccessibility for disabled prisoners in the facility." Id. ~~ 34-35.
Based upon the foregoing allegations, Calland, in his second amended complaint, makes four claims. First, Calland claims that the allegedly inadequate medical care violates the Eighth Amendment of the United States Constitution and seeks relief from all defendants. Id. ~~ 62-70. Second, Calland claims that the BOP and OED violated section 504 of the Rehabilitation Act. Id.
W71-79. Specifically, Calland alleges that he uses a wheelchair and claims that he has been denied
equal access to the facilities, programs, services, and activities at Rivers, solely because of his physical disability. Id. ~~ 10, 76-77.
Third, Calland seeks reliefunder North Carolina law and claims that OED negligently failed to provide reasonable medical care and treatment to him. Sec. Am. CompI. ~~ 80-83. The alleged breaches include:
(a) the failure to provide access to health care services; (b) the failure to hire, train, supervise and maintain an adequate level of qualified health care staffat Rivers; (c) the failure to establish an adequate and reasonable method for distributing medication; and (d) the failure to contain or treat infectious diseases. Id. ~ 82. According to Calland, OED's negligence proximately caused him to suffer "immediate and irreparable injury" and a "heightened risk of premature death." Id. ~ 83. Fourth, Calland claims that the contract between the BOP and OED was intended to confer the direct benefit of adequate medical, dental, and mental health care on him. Id. ~ 85. According to Calland, OED breached and continues to breach its express and implied contractual obligations to Calland by failing to provide adequate health care. Id. ~ 86. Calland claims that OED's alleged breach has caused him physical pain and injury, and asks the court to order OED to "perform its
4 
 Case 2:08-ct-00021-D Document 122 Filed 09/29/10 Page 4 of 14

obligations to provide adequate health care under the Rivers Contract." Id. ft 87, 89.
Calland seeks to have this action certified as a class action under Rule 23 ofthe Federal Rules of Civil Procedure. Sec. Am. Compl. 41 (prayer for relief); see id. ~~ 40-61. The proposed class would include "current and future prisoners of Rivers who, during their incarceration at Rivers, are dependent upon the organizations, systems, policies, practices, and institutional conditions of Defendants for their receipt of medical, dental, and mental health care." Id. ~ 40. Calland also seeks certification ofa sub-class of"all prisoners who have been denied access to the programs, services, facilities, and activities at Rivers because of Defendants' failures to diagnose, monitor, treat and/or accommodate their serious medical conditions, in violation of Section 504 of the Rehabilitation Act." Id. ~ 51. Calland requests declaratory and injunctive relief for himself and those similarly situated. Id. at 41--42 (prayer for relief).
On January 22,2010, GEO filed a motion to dismiss [D.E. 104]. On February 2,2010, the BOP and Lappin (who is sued in his official capacity) (collectively, ''the BOP defendants")4 also filed a motion to dismiss [D.E. 107]. Calland responded in opposition [D.E. 113], and the BOP defendants replied [D.E. 118]. Calland also filed a notice of supplemental authority [D.E. 121] pursuant to Local Civil Rule 7.1(g), E.D.N.C.
II. A motion to dismiss under Rule 12(b)(1) of the Federal Rules of Civil Procedure tests subject-matter jurisdiction, which is the court's "statutory or constitutional power to adjudicate the case." Steel Co. v. Citizens for a Better Env'l, 523 U.S. 83, 89 (1998) (emphasis omitted). A federal court "must determine that it has subject-matterjurisdiction over [a claim] before it can pass on the
4The parties agree that plaintiff's claims against Lappin are effectively claims against the BOP itself. BOP Defs.' Mem. Supp. 1 n.1; Pl.'s Mem. Opp'n 18. Thus, the court refers to the BOP and Lappin collectively as ''the BOP defendants."
5 

Case 2:08-ct-00021-D Document 122 Filed 09/29/10 Page 5 of 14

merits of that [claim]." Constantine v. Rectors & Visitors of George Mason Univ., 411 F.3d 474, 479-80 (4th Cir. 2005). Calland, as the party asserting that this court has subject-matterjurisdiction, mustprovethatsubject-matterjurisdictionexists. See,~, Steel Co., 523 U.S. at 104; Evansv. B.F.
Perkins Co., 166 F.3d 642, 647 (4th Cir. 1999); Richmond, Fredericksburg & Potomac RR v.
United States, 945 F.2d 765, 768 (4th Cir. 1991). In considering a motion to dismiss for lack of subject-matterjurisdiction, the court may considerevidence outside the pleadings without converting the motion into one for summary judgment. Evans, 166 F.3d at 647.
A motion to dismiss under Ru1e 12(b)(6) ofthe Federal Ru1es ofCivil Procedure for "failure to state a claim upon which reliefcan be granted," tests whether the complaint is legally and factually
sufficient. See FED. R CIV. P. 12(b)(6); Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009); Bell Atl.
Corp. v. Twombly, 550U.S. 544, 562-63, 570 (2007); Giarratanov. Johnson, 521 F.3d298, 301-{)2 (4th Cir. 2008); Goodman v. Praxair, Inc., 494 F.3d 458,464 (4th Cir. 2007) (en banc); accord Erickson v. Pardus, 551 U.S. 89, 93-94 (2007) (per curiam). In considering a motion to dismiss, a court need not accept a complaint's legal conclusions drawn from the facts. See, e.g., Ashcroft, 129 S. Ct. at 1949-50. Similarly, a court need not accept as true ''unwarranted inferences, unreasonable conclusions, or arguments." Giarratano, 521 F.3d at 302 (quotation omitted); see Ashcroft, 129 S. Ct. at 1949-50. Moreover, a court may take judicial notice of public records without converting a
motion to dismiss into a motion for summary judgment. See,~, FED. R EVID. 201; Tellabs. Inc.
v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007); Philips v. Pitt County Mem'l Hosp., 572 F.3d 176, 180 (4th Cir. 2009).
m.
A.
First, the court addresses Calland's claims against GED. Calland and GED rely upon their
6 
 Case 2:08-ct-00021-D Document 122 Filed 09/29/10 Page 6 of 14

briefs filed in connection with GEO' s motion to dismiss Calland's fIrst amended complaint. GEO's Mem. Supp. 1; Pl.'s Mem. Opp'n 7-8. Furthennore, Calland states that he "has reasserted all of [his] claims in the Second Amended Complaint for purposes of appeal." Pl.'s Mem. Opp'n 7 n.4.
Calland has not changed any pleading against GEO that would avoid dismissal for the reasons the court dismissed Calland's fIrst amended complaint against GEO. As for his fIrst claim for relief against GEO, Calland filed as supplemental authority a recent Ninth Circuit opinion, Pollard v. GEO Group. Inc., 607 F.3d 583 (9th Cir. 2010), which explicitly disagrees with the Fourth Circuit's opinion in Holly v. Scott, 434 F.3d 287 (4th Cir. 2006), regarding whether employees of a privately run prison may be held liable under Bivens v. Six Unknown Named Agents of Federal Bureau ofNarcotics, 403 U.S. 388 (1971). However, Holly is binding on this court. See,~, Doe v. Chao, 511 F.3d 461, 465 (4th Cir. 2007). Accordingly, for the reasons stated in the court's November 9,2009 order, the court dismisses the second amended complaint against GEO for failure to state a claim upon which relief can be granted.
B. Next, the court addresses plaintiff's Eighth Amendment claim against the BOP defendants. The Eighth Amendment's prohibition against cruel and unusual punishment requires prison officials to provide medical care to inmates. See,~, Estellev. Gamble, 429 U.S. 97,103 (1976). However, prisoners do not have ''unqualifIed access to health care." Hudson v. McMillian, 503 U.S. 1,9 (1992). In order to establish an Eighth Amendment claim for denial ofmedical care, a prisoner must establish "acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs." Estelle, 429 U.S. at 106. A serious medical need is "one that has been diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person would easily recognize the necessity for a doctor's attention." I1co v. Shreve, 535 F.3d 225, 241 (4th Cir. 2008)
7 
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(quotation omitted). Deliberate indifference requires that defendants knew of and purposefully ignored "an
excessive risk to inmate health or safety." Fanner v. Brenmm, 511 U.S. 825, 837 (1994). "[T]he official must both be aware of facts from which the inference could be drawn that a substantial risk of serious hann exists, and he must also draw the inference." Id. It is "obduracy and wantonness, not inadvertence or error in good faith, that characterize the conduct prohibited by the Cruel and Unusual Punishments Clause." Whitley v. Albers, 475 U.S. 312, 319 (1986). Deliberate indifference "sets a particularly high bar to recovery." Iko, 535 F.3d at 241. "In order to establish a claim ofdeliberate indifference to a medical need, the need must be both apparent and serious, and the denial must be both deliberate and without legitimate penological objective." Grayson v. Peed, 195 FJd 692,695 (4th Cir. 1999).
Calland's claim in his first amended complaint against the BOP defendants was based upon a theory ofderivative liability deriving from GEO's conduct, and that claim failed as a matter oflaw. Mathis, No. 2:08-CT-21-D, slip op. at 8-9 (E.D.N.C. Nov. 9, 2009). The court also noted:
[t]o state an Eighth Amendment claim under ... a theory [ofdirect liability], plaintiff must allege that defendant "knows of and disregards an excessive risk to inmate health or safety" and "must both be aware offacts from which the inference could be drawn that a substantial risk of serious hann exists, and he must also draw the inference. " Id. at 9 (quoting Fanner v. Brennan, 511 U.S. 825, 837 (1994}). The court held that plaintiff had "fail[ed] to allege facts sufficient to support ... [a] direct liability Eighth Amendment claim against the BOP" defendants and therefore dismissed the claim. Id. at 9--10. In seeking dismissal of the Eighth Amendment claim against them in the second amended complaint, the BOP defendants contend that plaintiff "once again fails to state a viable Eighth Amendment claim" against them. See BOP Defs.' Mem. Supp. 1. Specifically, the BOP defendants
8 
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contend that plaintiff lacks standing to assert an Eighth Amendment claim, "fails to identify an applicable waiver of sovereign immunity[,]" and fails to allege that they "acted with deliberative indifference." Id. 1-2 (emphasis in original).
To satisfy Article III standing requirements, a plaintiffmust show that: (1) ''the plaintiff .. . suffered an injury in fact - an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical;" (2) there is "a causal connection between the injury and the conduct complained of;" and (3) it is "likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision." Lujan v. Defenders of Wildlife, 504 U.S. 555,560--61 (1992)(footnote, citations, and quotations omitted). The asserted injury must be "fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court." Id. at 560 (alterations and quotation omitted).
The BOP defendants contend that Calland cannot establish the causation prong because "OEO's alleged breach ofits contract with the BOP stands incontrovertibly as an independent action by a third party that breaks the causal chain between the BOP and plaintiff." BOP Defs.' Mem. Supp. 15. However, in Calland's second amended complaint, he alleges that the BOP engaged in conduct independent of OEO which caused his injury. Calland submitted administrative-remedy appeals ''to BOP's Privatization Management [B]ranch on the Rivers facility's treatment of his arthritis. . .. The Privatization Management Branch's Administrative Remedy Coordinator responded to Plaintiff's Appeals in the form of a rejection notice." Sec. Am. Compl. ~ 34; see id.
m10, 15-24,33,35, 38(d), 39. The court concludes therefore that for purposes of standing­
plaintiffhas sufficiently demonstrated a "challenged agency action authoriz[ing] the conduct that
9 
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allegedly caused" his injuries. See Animal Legal De£. Fund. Inc. v. Glickmml, 154 F.3d 426,440-42 (D.C. Cir. 1998) (en banc).
The parties agree that any waiver of sovereign immunity on plaintiff's Eighth Amendment claim against the BOP defendants may be found in the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 701-706. SeePl.'sMem. Opp'n22; BOP Defs.' Mem. Supp. 15. Section 7020ftheAPA states:
An action in a court of the United States seeking relief other than money damages and stating a claim that an agency or an officer or employee thereof acted or failed to act in an official capacity or under color oflegal authority shall not be dismissed nor relief therein be denied on the ground that it is against the United States or that the United States is an indispensable party. 5 U.S.C. § 702. The BOP defendants contend that Section 704 ofthe APA limits this waiver, in that, because there is no statute which provides for review of BOP actions, Calland must be seeking review of a "'final agency action for which there is no other adequate remedy in a court.'" BOP Defs.' Mem. Supp. 15-16 (quoting 5 U.S.C. § 704). The United States Court ofAppeals for the Tenth Circuit and the United States District Court for the District of South Carolina have concluded that 5 U.S.C. § 702 does waive sovereign immunity for a prisoner's Eighth Amendment claim seeking injunctive reliefconcerning the BOP's failure to provide medical treatment. See Simmat v. U.S.. Bureau of Prisons, 413 F.3d 1225, 1230-33, 1238-40 (lOth Cir. 2005); Sabina v. Fed. Bureau of Prisons, CIA No. 0:08-3903-TLW­ PJG,2010 WL 972579, at *3-4 (D.S.C. Feb. 12,2010)(unpublished),nmm1andrecommendations adopted, No. 0:08-cv-3903-TLW-PJG, 2010 WL 960412 (D. S.C. Mar. 11, 2010) (unpublished). This court also concludes that, due to 5 U.S.C. § 702, sovereign immunity does not bar plaintiff's Eighth Amendment claim for injunctive relief against the BOP defendants. Moreover, 5 U.S.C. §
10 
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704 does not alter this conclusion.S
Finally, the BOP defendants contend that "plaintiffs Second Amended Complaint again fails
to identify the government action that allegedly violated his Eighth Amendment rights" and "fails
to allege a viable 'direct' constitutional violation by the BOP." BOP Defs.' Mem. Supp. 20. The
BOP defendants argue that, as an agency, the BOP cannot be held liable for any acts or subjective
knowledge of BOP employees stationed at Rivers because ''the 'deliberate indifference' standard in
Farmer cannot apply to an entity such as the BOP." Id. 20-25.
The BOP has not cited any caselaw to support its position. Moreover, nothing in Farmer
precludes BOP liability simply because it is an agency which may only possess subjective knowledge
through its employees. Compare Nichols v. Fed. Bureau of Prisons, No. 09-CV-558-CMA-CBS,
2010 WL 3219998, at *6 (D. Colo. Aug. 12,2010) (unpublished) (dismissing Eighth Amendment
claim against the BOP for failure to satisfy the subjective or objective prong of the Eighth
Amendment inquiry), with Nino v. Bureau of Prisons, No. 1:07-CV-56, 2008 WL 2004227, at *5
(N.D. W. Va. May 8, 2008) (unpublished) (declining to dismiss Eighth Amendment claim against
the BOP because allegations satisfied subjective and objective prong of the Eighth Amendment
inquiry). Although ''the Supreme Court has commented that it is difficult to determine the
subjective state ofmind ofa government entity[,] .... [t]his ... does not ... preclude the possibility
S5 U.S.C. § 704 states:
Agency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court are subject to judicial review. A preliminary, procedural, or intermediate agency action or ruling not directly reviewable is subject to review on the review of the final agency action. Except as otherwise expressly required by statute, agency action otherwise final is final for the purposes of this section whether or not there has been presented or determined an application for a declaratory order, for any form of reconsideration, or, unless the agency otherwise requires by rule and provides that the action meanwhile is inoperative, for an appeal to superior agency authority.
11 
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that a [government entity] can possess the subjective state of mind required by Fanner." Gibson v. County of Washoe, 290 F.3d 1175, 1189 n.10 (9th Cir. 2002) (emphasis in original). Accordingly, the court declines to adopt the BOP's proposed brightline rule.
Next, the BOP defendants argue that Calland has failed to "identify[] any direct action that the BOP took or failed to take with respect to plaintiff's medical needs or treatment[,]" or that plaintiffhas failed to allege any conduct which rises to the level ofdeliberate indifference. See BOP Defs.' Mem. Supp. 23-25 (emphasis in original). Calland, however, has sufficiently alleged the elements of an Eighth Amendment claim against the BOP defendants. Calland has alleged that he suffers from arthritis and degenerative bone disease which cause him extreme difficulty and pain and prevent him from walking, but he does not receive physical therapy and is required to wait outside for several hours each day in the "pill line" to receive his medication, regardless of weather conditions. Sec. Am. Compl. ~~ 10, 38(d).6 According to Calland, the BOP "is charged with monitoring and overseeing GEO's compliance with [its] ... contract obligations[,]" including the obligationto provide medical care to plaintiff, and Calland has complained directly to the BOP about "the grossly inadequate medical care" provided to him through formal administrative complaints filed with the BOP staff stationed at Rivers. Id. ~ 33-34. Moreover, according to Calland, the BOP has rejected or ignored Calland's complaints in disregard ofan excessive risk to his health. Id. ~~ 33-35. Calland also has alleged that systemic failures and deficiencies in health care delivery at
Rivers are open and notorious, that the BOP is actually aware ofthe grossly inadequate medical care at Rivers through numerous formal and informal complaints directly to BOP staffby the prisoners, that the BOP has done nothing to provide Calland with needed medical care, and that the BOP's
6The BOP defendants appear to concede that Calland has sufficiently alleged a serious medical need. See BOP Defs.' Mem. Supp. 12-13.
12 Case 2:08-ct-00021-D Document 122 Filed 09/29/10 Page 12 of 14

mr action caused Calland's injury. See id. 10-11, 15-24,34-35,38-39. These allegations state a
claim that the BOP defendants have "actual knowledge of the risk ofhann" to Calland, and that the BOP defendants realize their "actions were insufficient" in response to his complaints. See Iko, 535 F.3d at 241 (emphases and quotation omitted); see also Fanner, 511 U.S. at 837. Thus, these allegations are sufficient to withstand the BOP defendants' motion to dismiss.
C. Next, the court addresses Calland's claim against the BOP under the Rehabilitation Act. Calland and the BOP rely upon their briefs filed in connection with the BOP's motion to dismiss Calland's first amended complaint. For the reasons stated in its November 9,2009 order, the court again concludes that "plaintiff's Rehabilitation Act claim against the BOP fails to state a claim upon which reliefcan be granted." Mathis, No. 2:08-CT-21-D, slipop. at 10-16 (E.D.N.C. Nov. 9,2009).
IV. Calland seeks to amend his complaint to add an additional plaintiff [D.E. 114]. In opposition, the BOP defendants argue that "plaintiff's proposed amendment is futile because it is subject to dismissal for the same reasons asserted in the BOP's currently-pending Motion to Dismiss." BOP Defs.' Mem. Opp'n 1. Because the court finds that Calland has stated an Eighth Amendment claim against the BOP defendants, the motion to amend will be allowed.
V.
For the reasons stated above, the BOP defendants' motion to dismiss [D.E. 107] is GRANTED in part and DENIED in part, and GEO's motion to dismiss [D.E. 104] is GRANTED. Counts Two through Four ofthe second amended complaint are DISMISSED. Calland's motion for leave to file a third amended complaint [D.E. 114] is GRANTED. Plaintiff shall file his third amended complaint not later than October 25,2010.
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r t SO ORDERED. This day of September 2010.
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 IN THE UNITED STATES DISTRICT COURT 
 FOR THE EASTERN DISTRICT OF NORTH CAROLINA 

NORTHERN DIVISION 
 No.2:08-CT-21-D 


KEITH MATillS, et al.,

)

) 


Plaintiffs,

) 


v.

)

)

OEO OROUP, INC., et al.,

)

) 


Defendants.

) 


ORDER

Louis Calland ("Calland") and Gregory Terrell ("Terrell") (collectively, "plaintiffs") are inmates at Rivers Correctional Institution ("Rivers"). Plaintiffs contend that defendants OEO Group, Inc. ("OEO"), the Federal Bureau of Prisons ("BOP',), and Harley Lappin ("Lappin"), Director of the BOP (collectively, "the BOP defendants"),l have violated and are violating federal and state law in connection with their medical care. Calland also complains that the BOP and OEO have denied and are denying him access to programs and facilities at Rivers solely because ofhis disability. OEO is a private corporation that owns and operates Rivers, and the BOP has a procurement contract with OEO under which it pays OEO to house federal inmates at Rivers. Plaintiffs seek declaratory and injunctive relief and wish to serve as the class representatives for all current and future inmates at Rivers.
On November 9, 2009, the court granted defendants' motions to dismiss the amended complaint, but granted Calland's request to file a second amended complaint to amend the deficient claims [D.E. 96]. On December 9,2009, Calland filed a second amended complaint [D.E. 98]. On
I Lappin is sued in his official capacity; therefore, plaintiffs' claims against Lappin are effectively claims against the BOP itself See Kentuckyv. Graham, 473 U.S. 159, 165 (1985). Thus, the court refers to the BOP and Lappin collectively as "the BOP defendants."

Case 2:08-ct-00021-D Document 155 Filed 07/18/11 Page 1 of 17

September 29, 2010, the court granted in part defendants' motions to dismiss, dismissed OEO from the action, and granted Calland's motion for leave to file a third amended complaint [D.E. 122]. On October 25,2010, Calland and Terrell filed a third amended complaint [D.E. 125]. On November 29,2010, OEO filed a motion to dismiss [D.E. 130]. On December 3, 2010, the BOP defendants filed a motion to dismiss or for summary judgment and a motion to seal [D.E. 132, 133]. On February 2, 2011, plaintiffs filed a motion for discovery and a motion to deny the BOP defendants' motion to dismiss or for summary judgment pursuant to Fed. R. Civ. P. 56(d) [D.E. 137, 139]. On March 15,2011, the BOP defendants filed a motion to strike the jury demand in plaintiffs' third amended complaint [D.E. 146]. Plaintiffs do not oppose the motion to strike the jury demand concerning the Eighth Amendment claim for declaratory and injunctive relief against the BOP Defendants. See PIs.' Resp. BOP Defs.' Mot. Strike 1. Because that claim is the only remaining claim, the court grants the motion to strike [D.E. 146]. As explained below, OEO's motion to dismiss is granted, the BOP defendants' motion to dismiss or for summary judgment is granted in part and denied in part without prejudice, and plaintiffs' motion for discovery is granted.
1. In its November 9, 2009 order, the court described the background of this case in detail and thus restricts its discussion in this order to the pending motions. Plaintiffs' third amended complaint contains four claims,2 seeks declaratory and injunctive relief, and proposes to proceed as a class action on behalf of current and future inmates at Rivers.
2Plaintiffs acknowledge that the court previously dismissed their second, third, and fourth claims, and "plead those same claims below solely for purposes of preserving them for appeal." Compl. 37 n.1; see BOP Defs.' Mem. Supp. Mot. Dismiss 1 ("The sole remaining claim in this case is a 'direct' Eighth Amendment claim against the [BOP] based on allegations ofinadequate medical care"). Thus, the court focuses solely on plaintiffs' first claim for relief, which asserts that the BOP defendants' deliberate indifference to serious medical needs violates the Eighth Amendment.
2 
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OEO, a private corporation that owns and operates Rivers, has a federal-government procurement contract with the BOP. The BOP pays OEO to house federal inmates at Rivers. Third Am. CompI. ,,29-32. Plaintiffs claim that, while incarcerated at Rivers, OEO, the BOP, and Lappin have provided them inadequate medical care. Specifically, Calland alleges that he received inadequate medical treatment for his arthritis, degenerative bone disease, and diabetes, resulting in poor health and severe pain. Id.' 10. He also claims that he is unable to access the facilities, programs, services, and activities at Rivers because ofhis disability. See id. Terrell alleges that he suffers from "end-stage osteoarthritis ofthe knee," for which an orthopedic surgeon has stated requires "total knee replacement surgery," but "Rivers medical staffrefused to provide that corrective surgery." Id. , 11.
Plaintiffs make several allegations regarding the BOP's involvement in the day-to-day operations ofRivers. They allege that the contract between OEO and the BOP ''vests the BOP with the power to exercise control over OEO's personnel decisions, policies, and procedures. The BOP, inturn, is charged with monitoring and overseeing OEO's compliance with ... contract obligations." Id. , 34. The contract also allegedly "provides for on-site BOP monitors at the Rivers facility, charges [the BOP monitors] with 'the technical direction ofthe performance ofall work' performed pursuant to the Rivers Contract, and requires the construction of a 2,500-square-foot office and ten parking spaces for [the BOP's] exclusive use." Id.' 36.
According to plaintiffs, the BOP "has specific responsibility for oversight and monitoring of OEO's activities at Rivers" through the Privatization Management Branch of its Correctional Programs Division. Id., 35. "[T]he BOP's Privatization Management Branch has received administrative complaints from prisoners, including Plaintiffs Calland and Terrell, concerning the medical conditions at Rivers." Id. Plaintiffs and other prisoners have submitted "Regional Administrative Remedy Appeals to BOP's Privatization Management [B]ranch" and the BOP has
3 
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rejected such appeals. Id. In addition, "an on-site BOP monitor participates in the prison officer 'main line,'[3] which occurs daily." Id., 36. Accordingly, plaintiffs allege that, through its on-site involvement and supervision at Rivers via the Privatization Management Branch and participation by BOP monitors in the "main line," "the BOP is aware ofand continues to disregard the risks and severe harm to prisoner health and safety detailed by Plaintiffs in the Complaint," "the BOP has received actual notice of the harms caused to prisoners in its custody by the grossly inadequate medical care and lack of accessible facilities at Rivers," and the BOP "ha[s] actual notice ofprison complaints about the medical conditions and can get visual confirmation ofthe lack ofaccessibility for disabled prisoners in the facility." Id." 35-36.
Terrell and Calland make four claims in their third amended complaint. First, plaintiffs claim that the allegedly inadequate medical care violates the Eighth Amendment of the United States Constitution and seek relieffrom all defendants. Id. ~ 63-71. Second, Calland claims that the BOP and OEO violated section 504 ofthe Rehabilitation Act. Id. ~ 72-80. Specifically, Calland alleges that he uses a wheelchair and claims that he has been denied equal access to the facilities, programs, services, and activities at Rivers, solely because of his physical disability. Id." 10, 77-78.
Third, plaintiffs seek relief under North Carolina law and claim that OEO negligently failed to provide reasonable medical care and treatment to them. Id." 81-84. OEO's alleged breaches include:
(a) the failure to provide access to health care services; (b) the failure to hire, train, supervise and maintain an adequate level ofqualified health care staff at Rivers; (c) the failure to establish an adequate and reasonable method for distributing medication; and (d) the failure to contain or treat infectious diseases.
3 "During the daily 'main line; prison staff stand together outside of the dining hall at mealtime to make themselves available for infonnal discussions with prisoners and to receive and address their complaints." Third Am. CompI. , 36.
4 
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Id. ~ 83. According to plaintiffs, OEO's negligence proximately caused them to suffer "immediate and irreparable injury" and a "heightened risk of premature death." Id. ~ 84.
Fourth, plaintiffs claim to be third-party beneficiaries to the contract between the BOP and OEO and allege that the contract was intended to confer the direct benefit of adequate medical, dental, and mental health care on them. Id. ~ 86. According to plaintiffs, OEO breached and continues to breach its express and implied contractual obligations to them by failing to provide adequate health care. Id. ~ 87. Plaintiffs claim that OEO's alleged breach has caused them physical pain and injury, and they ask the court to order OEO to "perform its obligations to provide adequate health care under the Rivers Contract." Id. ~~ 88, 90.
Plaintiffs seek to have this action certified as a class action under Rule 23 of the Federal Rules of Civil Procedure. Id. at 43 (prayer for relief); see id. ~ 41-62. The proposed class would include "current and future prisoners of Rivers who, during their incarceration at Rivers, are dependent upon the organizations, systems, policies, practices, and institutional conditions of Defendants for their receipt of medical, dental, and mental health care." rd. ~ 41. Calland also seeks certification ofa sub-class on behalfof"all prisoners who have been denied access to the programs, services, facilities, and activities at Rivers because ofDefendants, failures to diagnose, monitor, treat and/or accommodate their serious medical conditions, in violation of Section 504 of the Rehabilitation Act." rd. ~ 52. Plaintiffs request declaratory and injunctive relieffor themselves and those similarly situated, along with costs and attorneys' fees, and seek a jury trial. Id. at 43-44.
II. A motion to dismiss under Rule 12(b)(1) of the Federal Rules of Civil Procedure tests subject-matter jurisdiction, which is the court's "statutory or constitutional power to adjudicate the case." Steel Co. v. Citizens for aBetter Env'I, 523 U.S. 83, 89 (1998) (emphasis omitted). Afederal
5 
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court "must detennme that it has subject-matterjurisdiction over [a claim] before it can pass on the merits of that [claim]." Constantine v. Rectors & Visitors of George Mason Univ., 411 F.3d 474, 479-80 (4th Cir. 2005). Plaintiffs, as the party asserting that this court has subject-matter jurisdiction, must prove that subject-matter jurisdiction exists. See, e.g., Steel Co., 523 U.S. at 104; Evans v. B.F. Perkins Co., 166 F.3d 642, 647 (4th Cir. 1999); Richmond, Fredericksburg & Potomac RR v. United States, 945 F.2d 765, 768 (4thCir.1991). In considering amotion to dismiss forlack of subject~matter jurisdiction, the court may consider evidence outside the pleadings without converting the motion into one for summary judgment. Evans, 166 F.3d at 647.
A motion to dismiss under Rule 12(b)(6) ofthe Federal Rules ofCivil Procedure for "failure to state a claim upon which reliefcan be granted," tests whether the complaint is legally and factually sufficient. See Fed. R Civ. P. 12(b)(6); Ashcroft v. Iqbal, 129 S. ct. 1937, 1949 (2009); Bell At!. Com. v. Twombly, 550 U.S. 544, 562-63, 570 (2007); Coleman v. Md. Ct. of Appeals, 626 F.3d 187, 190 (4th Cir. 2010), cert. granted, 2011 WL 500227 (U.S. June 27, 2011) (No. 10-1016); Giarratano v. Johnson, 521 F.3d 298,301-02 (4th Cir. 2008); Goodman v. Praxair. Inc., 494 F.3d 458, 464 (4th Cir. 2007) (en banc); accord Erickson v. Pardus, 551 U.S. 89, 93-94 (2007) (per curiam). In considering a motion to dismiss, a court need not accept a complaint's legal conclusions drawn from the facts. See, e.g., Iqbal, 129 S. Ct. at 1949-50. Similarly, a court need not accept as true "unwarranted inferences, unreasonable conclusions, or arguments." Giarratano, 521 F.3d at 302 (quotation omitted); see Iqbal, 129 S. Ct. at 1949-50. Moreover, a court may take judicial notice ofpublic records without converting a motion to dismiss into a motion for summaryjudgment. See, y., Fed. R Evid. 201; Tellabs. Inc. v. Makor Issues & Rights. Ltd., 551 U.S. 308, 322 (2007); Philips v. Pitt Cnty. Mem'l Hosp., 572 F.3d 176, 180 (4th Cir. 2009).
6 
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Summary judgment is appropriate when, after reviewing the record taken as a whole, no genuine issue ofmaterial fact exists, and the moving party is entitled to judgment as a matter oflaw. Fed. R. Civ. P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242,247-48 (1986). The party seeking summaryjudgment bears the initial burden ofdemonstrating the absence ofa genuine issue of material fact. Celotex Com. v. Catrett, 477 U.S. 317, 325 (1986). Once the moving party has met its burden, the nonmoving party may not rest on the allegations or denials in its pleading, Anderson, 477 U.S. at 248-49, but "must come forward with specific facts showing that there is a genuine issue for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Com., 475 U.S. 574, 587 (1986) (emphasis removed) (quotation omitted). A trial court reviewing a motion for summary judgment should determine whether a genuine issue ofmaterial fact exists for trial. Anderson, 477 U.S. at 249. In making this determination, the court must view the evidence and the inferences drawn therefrom in the light most favorable to the nonmoving party. Scott v. Harris, 550 U.S. 372, 378 (2007).
ill. First, the court addresses plaintiffs' claims against OEO. OEO seeks dismissal for the reasons stated in the court's November 9,2009 order. OEO Mot. Dismiss 2. Plaintiffs do not oppose the motion, subject to their "right to seek an appeal ofthe Court's Order upon entry ofa final judgment." Id. at 3; see Pis.' Opp'n BOP Defs.' Mot. Dismiss 8 (plaintiffs "retained claims against OEO for purposes of appeal but consented to the dismissal of those claims pending appeal"). Accordingly, the court dismisses the third amended complaint against OEO for failure to state a claim upon which relief can be granted. Next, the court addresses the BOP defendants' contention (raised for the first time in this round of motions) that the complaint is subject to dismissal for plaintiffs' failure to exhaust their
7 
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administrative remedies before the filing of the original complaint on June 28, 2007. See BOP Defs.' Mem. Supp. Mot. Dismiss 9-12; BOP Defs.' Reply Supp. Mot. Dismiss 2-5. The Prison Litigation Reform Act of 1995 ("PLRA") states that "[n]o action shall be brought with respect to prison conditions under [42 U.S.C. §] 1983 ... or any other Federal law, by a prisoner ... until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a); see Woodford v. Ngo, 548 U.S. 81, 84-85 (2006). "[T]he PLRA's exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong." Porter v. Nussle, 534 U.S. 516,532 (2002); see Jones v. Bock, 549 U.S. 199, 211 (2007). Moreover, a prisoner must exhaust administrative remedies regardless ofthe reliefoffered through administrative procedures. See Booth v. Chumer, 532 U.S. 731, 741 (2001). "There is no question that exhaustion is mandatory under the PLRA and that unexhausted claims cannot be brought in court." Jones, 549 U.S. at 211.
Section 1997e(a) requires an inmate to exhaust his administrative remedies before filing suit. See 42 U.S.C. § 1997e(a); Ford v. Johnson, 362 F.3d 395,398 (7th Cir. 2004); Johnson v. Jones, 340 F.3d 624, 627-28 (8th Cir. 2003). When an inmate files suit early, courts typically dismiss the action without prejudice. See,~, Ford, 362 F.3d at 401; Johnson v. Cannon, C.A. No. 4:08-776-PMD, 2010 WL 936706, at *8 (D.S.C. Mar. 15, 2010) (unpublished); Shouse v. Madsen, No. 7:09-cv­ 00461, 2010 WL 276543, at *1 (W.D. Va. Jan. 19, 2010) (unpublished). A dismissal without prejudice allows the prisoner an opportunity to exhaust the administrative process and then file a new suit, if the prisoner so chooses.
Failure to exhaust is an affirmative defense that a defendant must plead and prove. See,~, Anderson v. XYZ COrI. Health Servs.. Inc., 407 F.3d 674, 681 (4th Cir. 2005). The BOP defendants have submitted evidence indicating that Calland exhausted his administrative remedies on April 11,
8 
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2008, and Terrell exhausted his administrative remedies on October 23, 2008. See Hubler Decl.,
Exs. D-F (plaintiffs' administrative remedies). Calland joined the action as a plaintiff with the
filing ofthe first amended complaint on October 24,2008, and Terrell joined the action as a plaintiff
with the filing ofthe third amended complaint on October 25,2010.
Each plaintiffexhausted certain administrative remedies before joining the action, but after
other inmates originally filed the action. Courts facing similar procedural postures have allowed the
"new" inmate's claims to proceed so long as the original inmates had exhausted their claims before filing the action and the newly added inmates exhausted their "new" claims before being added.4
See, ~ Rhodes v. Robinson., 621 F.3d 1002, 1005-06 (9th Cir. 2010); Barnes v. BrilID', 420 F.3d
673,678 (7th Cir. 2005); Riggs v. Valdez, 1:09-CV-01O-BLW, 2010 WL 4117085, at *3--6 (D.
Idaho Oct. 18,2010) (unpublished); Shariffv. Coombe, 655 F. Supp. 2d 274,283-84 (S.D.N.Y.
2009).
Here, the BOP defendants have not submitted any evidence concerning whether the inmates
who originally filed this action exhausted administrative remedies. Thus, because the BOP
defendants never raised the affirmative defense ofexhaustion, this court does not know whether the
original plaintiffs exhausted their claims before filing the action. Therefore, the BOP defendants'
citation to Jackson v. District ofColumbi~ 254 F.3d 262 (D.C. Cir. 2001), is unavailing. InJackson,
4 In cases where the court has certified a prisoner class pursuant to Fed. R. Civ. P. 23, courts have permitted later plaintiffs to participate in the actionthrough a theory of"'vicarious exhaustion,' Le., when 'one or more class members ha[s] exhausted his administrative remedies with respect to each claim raised by the class.'" Chandlerv. Crosby, 379F.3d 1278,1287 (1IthCir. 2004)(quoting Jones 'EI v. Berge, 172 F. Supp. 2d 1128, 1133 (W.D. Wis. 2001)); see Gates v. Cook, 376 F.3d 323, 329-30 (5th Cir. 2004); Jackson v. District of Columbi~ 254 F.3d 262, 268--69 (D.C. Cir. 2001); Lewis v. Washington., 265 F. Supp. 2d 939,941-43 (N.D. Ill. 2003); Hattie v. Hallock, 8 F. Supp. 2d 685, 689 (N.D. Ohio 1998). Here, on September 30, 2009, the court denied without prejudice Calland's motion for class certification "[d]epending on the outcome ofthe [then-]pending motions to dismiss for failure to state a claim" [D.E. 88] at 2. Thus, plaintiffs may not use this theory.
9 
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unlike here, the record demonstrated that none ofthe original plaintiffs in a prisoner class action suit had exhausted administrative remedies until after filing the original complaint. Id. at 268-70. One plaintiff then exhausted administrative remedies before the plaintiffs filed an amended complaint. Id. at 269. The D.C. Circuit affirmed dismissal of the action for failure to exhaust because the subsequent exhaustion could not cure the defect inherent in the initial action. Id. at 269-70. In sum, on the current record, the BOP defendants have failed to prove their failure to exhaust defense.
Next, the court addresses the BOP defendants' argument (also raised for the firsttime in this round of motions) that each plaintiff's exhaustion ''with respect to one specific health care-related issue" does not "coverO the alleged issues for which they bring suit here." BOP Defs.' Mem. Supp. Mot. Dismiss 10. Requiring exhaustion gives prison officials "an opportunity to resolve disputes concerning the exercise of their responsibilities before being haled into court" and leads to the preparation ofa useful administrative record. Jones, 549 U.S. at 204. Grievances must be sufficient in detail to "alert[] the prison to the nature of the wrong for which redress is sought." Strong v. Davig, 297 F.3d 646,650 (7th Cir. 2002);5 see, e.g., Moore v. Bennette, 517 F.3d 717, 721-23, 728-29 (4th Cir. 2008). However,
[a] grievance need not include legal terminology or legal theories unless they are in some way needed to provide notice ofthe harm being grieved. A grievance also need not contain every fact necessary to prove each element of an eventual legal claim. The primary purpose of a grievance is to alert the prison to a problem and facilitate its resolution, not to lay groundwork for litigation. Griffm v. Ar.paio, 557 F.3d 1117, 1120 (9th Cir. 2009). Plaintiffs' remaining claim asserting the BOP defendants' deliberate indifference to serious medical needs in violation of the Eighth Amendment alleges in pertinent part as follows:
5 The Second, Fifth, Sixth, Ninth, and Tenth Circuits have adopted the Strong standard. See Griffin v. Ar.paio, 557 F.3d 1117, 1120 (9th Cir. 2009) (collecting cases).
10 
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64. [The BOP defendants] know of and have disregarded the substantial risk of serious harm to Plaintiffs' health and safety that is created by the open and notorious health care delivery failures at Rivers.
65. Defendants' deliberate indifference to Plaintiffs' serious medical, dental, and mental health needs has caused and continues to cause avoidable pain, mental suffering, and deterioration of Plaintiffs' health. In some instances, Defendants' conduct has resulted in serious physical injury, and, upon information and belief, premature death.
66. Defendants' organizations, systems, policies, procedures, practices, acts, and omissions all evidence and constitute cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution.
67. Defendants' organizations, systems, policies, procedures, practices, acts, and omissions place Plaintiffs and Class members at unreasonable, continuing, and foreseeable risk of developing or exacerbating serious medical, dental, and mental health problems, and of suffering needless pain, injury, and premature death.
Third Am. Compl. ~ 64-67.
Calland's grievances state that he has "not receiv[ed] ... proper medications for arthritis or
[his] bone condition," that "as a result [he is] in a lot of pain and discomfort," that he "ha[s] been
asking for the right medication for a long time but ha[s] been denied many times," and that he
receives an inappropriate diet for a diabetic, with "too much starch" and "not ... enough protein."
Calland Decl., Ex. A at 3, 5. Terrell's grievances state that he has been diagnosed with "a tom
meniscus and a tom ACL ligament" in his right knee, which causes "excruciating pain." Terrell
Decl., Ex. B at 3. He was seen by an orthopedic surgeon, who determined that he requires surgery,
but "BOP refused to honor [his] surgery" and medical staff would not allow him to receive
medication prescribed for him by the surgeon. Id. at 2, 7. Thus, Calland and Terrell have exhausted
grievances which are sufficient in detail to alert the BOP defendants to a failure to provide them with
medical care. The grievances also provide fair notice of the alleged systemic problems at Rivers
described in paragraphs 39(a), 39(b), and 39(c) of plaintiffs' third amended complaint. These
11 
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components ofthe Eighth Amendment claim may proceed. However, plaintiffs' grievances do not
provide fair notice of the alleged systemic problem concerning the "[f]ailure to contain or treat
infectious diseases." See Third Am. Compi. -,r 39(d). Thus, the court dismisses that component of
plaintiffs' remaining Eighth Amendment claim. See, e.g., Moore, 517 F.3d at 728-29; Cuny v.
Scon, 249 F.3d 493, 504-05 (6th Cir. 2001).
Next, the court addresses the BOP defendants' contention that Section 704 of the
Administrative Procedure Act ("APA") "preclude[s] judicial review of agency action when a
plaintiffhas '[an]other adequate remedy in a court' for his claim." BOP Defs.' Mem. Supp. Mot.
Dismiss 12. The court previously rejected this contention:
The BOP defendants contend that Section 704 ofthe APA limits this waiver, in that, because there is no statute which provides for review of BOP actions, Calland must be seeking review of a '''fmal agency action for which there is no other adequate remedy in a court.'" BOP Defs.' Mem. Supp. 15-16 (quoting 5 U.S.C. § 704).
The United States Court ofAppeals for the Tenth Circuit and the United States District Court for the District of South Carolina have concluded that 5 U.S.C. § 702 does waive sovereign immunity for a prisoner's Eighth Amendment claim seeking injunctive relief concerning the BOP's failure to provide medical treatment. See Simmat v. U.S. Bureau of Prisons, 413 F.3d 1225, 1230-33, 1238-40 (10th Cir. 2005); Sabina v. Fed. Bureau of Prisons, CIA No. 0:08-3903-TLW-PJG, 2010 WL 972579, at *3-4 (D.S.C. Feb. 12,2010) (unpublished), report and recommendations adopteg, No. 0:08-cv-3903-TLW-PJG, 2010 WL 960412 (D.S.C. Mar. 11,2010) (unpublished). This court also concludes that, due to 5 U.S.C. § 702, sovereign immunity does not bar plaintiff's Eighth Amendment claim for injunctive relief against the BOP defendants. Moreover,S U.S.C. § 704 does not alter this conclusion.
Mathis, No. 2:08-CT-21-D, slip op. at 10-11 (B.D.N.C. Sept. 29, 2010) (emphasis added).
Furthermore, Holly v. Scott, 434 F.3d 287,295-96 (4th Cir. 2006), and other similar cases do not
alter this conclusion. In those cases, the plaintiffs sought monetary damages from private actors, as
opposed to injunctive reliefagainst the BOP, and the "multiple potential claims" to which the Fourth
Circuit referred were state-law tort claims which "include the possibility of recovering punitive
12 

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damages." Id.; see Alba v. Montford, 517F.3d 1249,1254 (llthCir. 2008)(same); Peoplesv. CCA
Detention Ctrs., 422 F.3d 1090, 1108 (10th Cir. 2005) (same).
Alternatively, the BOP defendants seek summary judgment on the merits of plaintiffs'
deliberate indifference claims against them. See BOP Defs.' Mem. Supp. Mot. Dismiss 13. In
response, plaintiffs move, pursuant to Federal Rule of Civil Procedure 56(d),6 to deny the BOP
defendants' motion for summary judgment so that the parties can engage in discovery. PIs.' Rule
56(d) Mot.; see PIs.' Opp'n BOP Defs.' Mot. Dismiss 16.
"As a general rule, summaryjudgment is appropriate only after adequate time for discovery."
Evans v. TecM. Applications & Servo Co., 80 F.3d 954, 961 (4th Cir. 1996) (quotation omitted).
Rule 56(d) provides:
Ifa nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition, the court may: (l) defer considering the motion or deny it; (2) allow time to obtain affidavits or declarations or to take discovery; or (3) issue any other appropriate order.
Fed. R. Civ. P. 56(d). Thus, Rule 56(d) permits a court to delay ruling on a motion for summary
judgment ifthe nonmoving party requires discovery to identify "facts essential to justify the party's
opposition." Crawford-EI v. Britto!!, 523 U.S. 574,599 n.20 (1998) (quotation omitted); Naderv.
Blair, 549 F.3d 953, 961-62 (4th Cir. 2008); White v. BFI Waste Servs.• LLC, 375 F.3d 288, 295
n.2 (4th Cir. 2004).
6Effective December 1, 2010, the Supreme Court amended Rule 56, and what is now Rule 56(d) was previously codified as Rule 56(f). See Fed. R. Civ. P. 56, advisory committee's note ("The standard for granting summary judgment remains unchanged. . . . Subdivision (d) carries forward without substantial change the provisions of former subdivision (f)."); see also Order Amending Fed. R. Civ. P. (U.S. Apr. 28,2010) ("[T]he foregoing amendments to the Federal Rules of Civil Procedure shall take effect on December 1, 2010, and shall govern in all proceedings thereafter commenced and, insofar asjust and practicable, all proceedings then pending."); Merchant v. Prince George's County, No. 10-1268,2011 WL2451528, at *1 n.l (4th Cir. June 21, 2011) (per curiam) (unpublished).
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A party requesting reliefpursuant to Rule 56(d) must specifically demonstrate that the party has not had sufficient time to develop information it needs to oppose the summaryjudgment motion. Harrods Ltd. v. Sixty Internet Domain Names, 302 F.3d 214, 244 (4th Cir. 2002). In making its determination, a court may consider the diligence that the non-moving party has demonstrated in pursuing discovery. See White, 375 F.3d at 295 n.2; Harrods Ltd., 302 F.3d at 245; Strag v. Bd. of Trs., 55 F.3d 943,953-54 (4th Cir. 1995). A court also may consider whether the case "involves complex factual questions about intent and motive." Harrods, 302 F.2d at 247; cf. Nader, 549 F.3d at 962 (''the Defendants' motives and intent were not at issue in the motion for summary judgment").
Plaintiffs have filed several exhibits indicating their attempts to obtain discovery, and a declaration by their attorney? asserting the need for discovery and stating that no discovery has taken place in this case. See PIs.' Rule 56(d) Mot., Exs. A-H & Estrada Decl. The Fourth Circuit places "great weight on the [Rule 56(d)] affidavit." Evans, 80 F.3d at 961. Plaintiffs' counsel's Rule 56(d) affidavit states that plaintiffs have attempted to engage in discovery on several occasions, but the BOP defendants have declined to participate. EstradaDecl. ~~ 4-11. Additionally, the BOP defendants' motion "relies upon affidavits by three [BOP employees] who have not been deposed (and were first identified in the summaryjudgment motion) and excerpted or self-selecteddocuments that have not been produced in full to Plaintiffs but appear to contain information relevant to the claims and defenses in this case," and that the BOP "Defendants' knowledge of Plaintiffs' medical conditions also is a key factor considered in Plaintiffs' proof for an Eighth Amendment claim," which requires discovery ''to reveal the extent of[BOP] Defendants' knowledge of[plaintiffs'] care
? Although the better practice is for a party (rather than an attorney) to file a Rule 56(d) affidavit, the court has discretion to accept an attorney's Rule 56(d) affidavit. See, ~ Resolution Trust Con>. v. N. Bridge Assocs.. Inc., 22 F.3d 1198, 1204 (1st Cir. 1994) (noting that a party's attorney may submit an appropriate affidavit under Rule 56(t)).
14 Case 2:08-ct-00021-D Document 155 Filed 07/18/11 Page 14 of 17

and condition." Id. W15-16. The BOP defendants contend that "[t]he applicable legal framework"
for an Eighth Amendment claim does not require the type ofdiscovery plaintiffs seek, and the BOP defendants object to many of plaintiffs' proposed interrogatories and requests for production. BOP Defs.' Opp'n Pis.' Rule 56(d) Mot. 8-19.
Plaintiffs' Rule 56(d) affidavit articulates particular information that plaintiffs seek to discover concerning their Eighth Amendment claim and the BOP defendants' argument that plaintiffs cannot impute knowledge to them. Cf. Farmer v. Brennan, 511 U.S. 825, 849 (1994). Plaintiffs have demonstrated a good-faith need to develop a factual record in order to oppose any summary judgment motion. Because the parties have not engaged in any discovery in this action and plaintiffs' counsel has filed an appropriate Rule 56(d) affidavit, the court grants plaintiffs' Rule 56(d) motion and denies without prejudice the BOP defendants' motion for summary judgment.
IV.
The BOP defendants have moved to seal an unredacted memorandum, declaration, and two exhibits [D.E. 131-32] which support their motion to dismiss or for summary judgment because these documents contain excerpts ofand references to plaintiffs' medical records.8 BOP Defs.' Mot. Seal 1-3. Plaintiffs do not object to the motion "to the extent that it asks the Court to file Plaintiffs' medical records under seal." Pis.' Resp. BOP Defs.' Mot. Seal 1.
The court has analyzed the motion to seal under the governing standard. See, e.g., Va. Dep't of State Police v. Washington Post, 386 F.3d 567,575 (4th Cir. 2004); Stone v. Univ. ofMd. Med. Sys. Corp., 855 F.2d 178, 180 (4th Cir. 1988); Rushford v. New Yorker Magazine. Inc., 846 F.2d
8 The BOP defendants filed these documents ex parte, and state that "counsel for plaintiffs must provide counsel for federal defendants with plaintiffs' authorization in order for counsel for federal defendants to serve counsel for plaintiffs with the Proposed Sealed Material." BOP Defs.' Mot. Seal 1 n.l. Plaintiffs' response to the motion to seal does not indicate whether there is any issue with receiving the proposed sealed material from the BOP defendants.
15 Case 2:08-ct-00021-D Document 155 Filed 07/18/11 Page 15 of 17

249, 253 (4th Cir. 1988); In re Knight Publ'g Co., 743 F.2d 231, 235 (4th Cir. 1984). As for Exhibits D and E to the declaration ofDr. Daniel De Jesus, which are portions ofplaintiffs, medical records, the court concludes it is appropriate to seal these exhibits. However, with regard to paragraphs 8 through 10 of Dr. De Jesus's declaration, which briefly describe plaintiffs' medical histories, and page 20 of the BOP defendants' memorandum, which contains an even briefer description of plaintiffs' medical histories, the court concludes that sealing is inappropriate. Plaintiffs have readily acknowledged their medical histories and courses of treatment in unsealed filings. Thus, the court concludes that, with respect to their memorandum and Dr. De Jesus's declaration, the BOP defendants have not met their burden on the motion to seal. Accordingly, the court grants the motion to seal in part, only as to Exhibits D and E to the declaration of Dr. Daniel De Jesus. Additionally, the court directs that the exhibits be filed under seal rather than ex parte. Because medical records will be an important part of this action, the court suggests that the parties discuss the possibility of a protective order to avoid future motions to seal.
Finally, as for plaintiffs' motion for entry of a scheduling order or a scheduling conference, the BOP defendants object only to the extent of the discovery proposed by plaintiffs. The BOP defendants may raise specific objections to discovery requests pursuant to Local Civil Rule 26.1, EDNC. The court directs the parties to confer and file a proposed scheduling order (or separate proposed orders, if the parties cannot agree) no later than July 29,2011.
V.
For the reasons stated above, GEO's motion to dismiss [D.E. 130] is GRANTED and the BOP defendants' motion to dismiss or for summary judgment [D.E. 133] is GRANTED in part and DENIED in part without prejudice. Specifically, the motion to dismiss that component ofthe claim grounded in paragraph 39(d) of the third amended complaint for failure to exhaust administrative
16 
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remedies is GRANTED. The BOP defendants' motion to seal [D.E. 132] is GRANTED IN PART, and the court directs the clerk to maintain under seal (rather than ex parte) only Exhibits D and E to the declaration of Dr. Daniel De Jesus [D.E. 131-2, 131-3]. Plaintiffs' discovery and Rule 56(d) motions [D.E. 137, 139] are GRANTED. The BOP defendants' motion to strike the jury demand in plaintiffs' third amended complaint [D.E. 146] is GRANTED. Counts Two through Four ofthe third amended complaint are DISMISSED.
SO ORDERED. This J..B day of July 2011.
tfl-..... ~"JI.Jl
J SC.DEVERlli United States District Judge
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 IN THE UNITED STATES DISTRICT COURT 
 FOR THE EASTERN DISTRICT OF NORTH CAROLINA 

NORTHERN DMSION 
 No.2:08-CT-21-D 


KEITH MATHIS, et al.,

)

) 


Plaintiffs,

) 


v.

)

)

GEO GROUP, INC., et al.,

)

)

Defendants.

)

ORDER

Gregory Terrell ("Terrell") is an inmate at Rivers Correctional Institution ("Rivers"). Terrell

contends that defendants GEO Group, Inc. ("GEO"), the Federal Bureau of Prisons ("BOP"), and

Charles E. Samuels, Jr. ("Samuels"), Director ofthe BOP (collectively, "BOP defendants")/ have

violated and are violating federal and state law in connection with the medical care provided to

inmates. GEO is a private corporation that owns and operates Rivers, and the BOP has a

procurement contract with GEO under which it pays GEO to house federal inmates at Rivers. Terrell

seeks declaratory and injunctive reliefand wishes to serve as the class representative for all current

and future inmates at Rivers.

On November 9, 2009, the court granted defendants' motions to dismiss the amended

complaint, but granted a former plaintiff s ("Calland,,)2 request to file a second amended complaint

1 Samuels is substituted for Harley Lappin. See Fed. Civ. P. 25(d). Samuels is sued in his official capacity; therefore, the plaintiffs' claims against Samuels are effectively claims against the BOP itself. See Kentucky v. Gr~ 473 U.S. 159,165 (1985). Thus, the court refers to the BOP and Samuels collectively as the BOP defendants.
2On September 26, 2011, Calland and the BOP defendants filed a stipulation of dismissal without prejudice as to Calland [D.E. 170]. Calland sought certification ofa sub-class on behalfof "all prisoners who have been denied access to the programs, services, facilities, and activities at Rivers because ofDefendants, failures to diagnose, monitor, treat and/or accommodate their serious medical conditions, in violation of Section 504 ofthe Rehabilitation Act ...." Third Am. CompI.
Case 2:08-ct-00021-D Document 180 Filed 02/23/12 Page 1 of 11

to amend the deficient claims [D.E. 96]. On December 9,2009, Calland filed a second amended complaint (D.E. 98]. On September 29, 2010, the court granted in part the BOP defendants' motions to dismiss, dismissed GEO from the action, and granted Calland's motion for leave to file a third amended complaint (D.E. 122]. On October 25,2010, Calland and Terrell filed a third amended complaint (D.E. 125]. On July 18,2011, the court granted GEO's motion to dismiss and granted in part and denied in part the BOP defendants' motion to dismiss or for summaryjudgment [D.E. 155].
On August 11, 2011, the BOP defendants moved for partial reconsideration [D.E. 159]. On August 23,2011, Terrell filed a second motion for class certification (D.E. 161]. On September 16, 2011, the BOP defendants moved to stay the briefing deadlines on Terrell's second motion for class certification [D.E. 165]. On January 9, 2012, the court denied the BOP defendants' motion for reconsideration, granted their motion to stay, and allowed the parties further time to respond and reply to the second motion for class certification (D.E. 177]. On January 30, 2012, the BOP defendants responded in opposition to Terrell's second motion for class certification. Resp. Opp'n 2d Mot. Class Cert. [D.E. 178]. On February 6, 2012, Terrell replied. Reply Supp. 2d Mot. Class Cert. (D.E. 179]. As explained below, Terrell has failed to satisfY his burden of showing that the class meets the requirements of Federal Rule of Civil Procedure 23(a)(2) or (3). Thus, the court denies his renewed motion for class certification.
I. In its November 9,2009 order, the court extensively described the background ofthis case. Accordingly, the court restricts its discussion in this order to the pending motion. Additionally, the
(D.E. 125] ~ 52. The court has repeatedly dismissed plaintiffs' Rehabilitation Act claim against the BOP defendants, see [D.E. 96] 10-16 (Nov. 9,2009 order), [D.E. 122] 13 (Sept. 29,2010 order), (D.E. 155] 2 n.2 (July 18,2011 order), and thus does not address any proposed disability sub-class. Moreover, Terrell does not address any such sub-class in seeking class certification.
2 
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court limits its discussion of the allegations in the third amended complaint to those claims that remain after the court's July 18,2011 order.
Terrell suffers from "end-stage osteoarthritis of the knee," and an orthopedic surgeon has stated that Terrell needs ''total knee replacement surgery." Third Am. Compl. ~ 11. Nonetheless, "Rivers medical staffrefused to provide that corrective surgery." Id. The third amended complaint details other former inmates' allegations ofinadequate medical care, which include complications and emergency surgeries resulting from the failure to treat initially minor health problems, id. ~ 16, 18; refusal to provide mental health treatment or prescribed medication for diagnosed mental illness and denial of prescribed surgery, id. ~ 17; deterioration of mobility as a result of being denied
physical therapy and other devices, id. ~~ to, 19-20,22-23; failure to treat infectious diseases, id.
~~ 16, 21;3 failure to treat significant pain, id. ~~ 16-19, 21-22; confiscation of prescribed medications and substitution with medications that caused significant side effects or with no medications at all, id. ~ 19,23-25; and requiring inmates to choose between eating and receiving medications through a "pill line. Id. ~~ 23-24.
The third amended complaint alleges that the BOP defendants have provided inadequate medical care to inmates incarcerated at Rivers in violation of the Eighth Amendment, and makes several allegations regarding the BOP's involvement in the day-to-day operations ofRivers. Terrell alleges that the contract between GEO and the BOP ''vests the BOP with the power to exercise control over GEO's personnel decisions, policies, and procedures. The BOP, in tum, is charged with monitoring and overseeing GEO's compliance with ... contract obligations." Id. ~ 34. The contract also allegedly "provides for on-site BOP monitors at the Rivers facility, charges [the BOP monitors]
3The court previously dismissed any claim concerning the "[f]ailure to [c]ontain or [t]reat [i]nfectious [d]iseases," Third Am. Compl. ~ 39(d), as unexhausted. [D.E. 155] 10-12.
3 
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with 'the technical direction of the performance of all work' performed pursuant to the Rivers Contract, and requires the construction ofa 2,500-square-foot office and ten parking spaces for [the BOP's] exclusive use." Id. ~ 36.
According to Terrell, the BOP "has specific responsibility for oversight and monitoring of GEO's activities at Rivers" through the Privatization Management Branch of its Correctional Programs Division. Id. ~ 35. "[T]he BOP's Privatization Management Branch has received administrative complaints from prisoners, including ... Terrell, concerning the medical conditions at Rivers." Id. Terrell and other prisoners have submitted "Regional Administrative Remedy Appeals to BOP's Privatization Management [B]ranch" and the BOP has rejected such appeals. Id. In addition, "an on-site BOP monitor participates in the prison officer 'main line,'[4] which occurs daily ...." Id. ~ 36. Accordingly, Terrell alleges that, through the BOP's on-site involvement and supervision at Rivers via the Privatization Management Branch and the BOP's participation in the main line, "the BOP is aware of and continues to disregard the risks and severe harm to prisoner health and safety detailed by [p]laintiffs in the [c]omplaint." Id. According to Terrell, the BOP "has received actual notice of the harms caused to prisoners in its custody by the grossly inadequate medical care and lack ofaccessible facilities at Rivers ... , ha[s] actual notice ofprison complaints about the medical conditions[,] and can get visual confirmation of the lack of accessibility for
mr disabled prisoners in the facility." Id. 35-36. Terrell specifically asserts that
64. [The BOP defendants] know of and have disregarded the substantial risk of serious harm to Plaintiffs' health and safety that is created by the open and notorious health care delivery failures at Rivers.
4 "During the daily 'main line,' prison staff stand together outside of the dining hall at mealtime to make themselves available for informal discussions with prisoners and to receive and address their complaints," Third Am. Compl. ~ 36.
4 
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65. Defendants' deliberate indifference to Plaintiffs' serious medical, dental, and mental health needs has caused and continues to cause avoidable pain, mental suffering, and deterioration of Plaintiffs' health. In some instances, Defendants' conduct has resulted in serious physical injury, and, upon information and belief, premature death.
66. Defendants' organizations, systems, policies, procedures, practices, acts, and omissions all evidence and constitute cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution.
67. Defendants' organizations, systems, policies, procedures, practices, acts, and omissions place Plaintiffs and Class members at unreasonable, continuing, and foreseeable risk of developing or exacerbating serious medical, dental, and mental health problems, and of suffering needless pain, injury, and premature death.
Id. ~~ 64--67. Terrell claims that the allegedly inadequate medical care provided at Rivers violates
the Eighth Amendment ofthe United States Constitution, seeks injunctive relief, and proposes that
this case proceed as a class action on behalf of current and future inmates at Rivers. Id. W63-71.
II.
Pursuant to by Federal Rule of Civil Procedure 23, Terrell seeks to represent a "class ofall
current and future prisoners who, during their incarceration at Rivers, are dependent upon the
organizations, systems, policies, practices, and institutional conditions for their receipt of medical,
dental, and mental health care ...." Mem. Supp. 2d Mot. Class Cert. [D.E. 162] 4 (emphasis
removed). Rule 23(a) provides that a plaintiff may bring a class action as a representative party if
(1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses ofthe class; and (4) the representative parties will fairly and adequately protect the interests of the class.
Fed. R. Civ. P. 23 (a). These basic prerequisites are commonly referred to as numerosity,
commonality, typicality, and adequacy, respectively. "A plaintiffbears the burden ofproving these
requirements." Monroe v. City of Charlottesville. Va., 579 F.3d 380, 384 (4th Cir. 2009), cert.
5 
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denied, 130 S. Ct. 1740 (2010); see Thorn v. Jefferson-Pilot Life Ins. Co., 445 F.3d 311, 317 (4th
Cir.2006). Moreover,
the fmal three requirements of Rule 23(a) ''tend to merge," with commonality and typicality "serving as guideposts for determining whether ... maintenance of a class action is economical and whether the named plaintiffs claim and the class claims are so interrelated that the interests of the class members will be fairly and adequately protected in their absence." ... Broussard v. Meineke Discount Muffler Shops, 155 F.3d331, 337 (4th Cir. 1998)(quoting [Gen. Tel. Co. ofthe Sw. v. ]Falcon, 457 U.S. [147,] 157 n.13 [(1982)]) (alteration in original). Indeed, "[c]ertification is only concerned with the commonality (not the apparent merit) of the claims and the existence ofa sufficiently numerous group ofpersons who may assert those claims." Lilly v. Harris-Teeter Supermarket, 720 F.2d 326,332-33 (4th Cir. 1983).
Brown v. Nucor Com., 576 F.3d 149, 152 (4th Cir. 2009), cert. denied, 130 S. Ct. 1720 (2010)
(parallel citation omitted).
To bring a class action, the proposed class representative must first demonstrate all four
prerequisites ofRule 23(a) and then "must satisfy at least one ofthe three requirements listed in Rule
23(b)."S Wal-Mart Stores. Inc. v. Dukes, 131 S. Ct. 2541, 2548 (2011). As the Supreme Court
explained in Wal-Mart:
Rule 23 does not set forth a mere pleading standard. A party seeking class certification must affirmatively demonstrate his compliance with the Rule-that is, he must be prepared to prove that there are in fact sufficiently numerous parties, common questions oflaw or fact, etc. We recognized in Falcon that "sometimes it may be necessary for the court to probe behind the pleadings before coming to rest on the certification question," 457 U.S., at 160, and that certification is proper only if "the trial court is satisfied, after a rigorous analysis, that the prerequisites of Rule 23(a) have been satisfied," id., at 161; see id., at 160 ("[A]ctual, not presumed, conformance with Rule 23(a) remains ... indispensable"). Frequently that "rigorous analysis" will entail some overlap with the merits ofthe plaintiffs underlying claim. That cannot be helped. '" [T]he class determination generally involves considerations that are enmeshed in the factual and legal issues comprising the plaintiffs cause of action.'" Falcon, supr~ at 160 (quoting Coopers & Lybrand v. Livesay, 437 U.S. 463, 469 (1978); some internal quotation marks omitted). Nor is there anything unusual about that consequence: The necessity oftouching aspects ofthe merits in
STerrell seeks to bring a class action under Rule 23(b)(1) or (b)(2). See Mem. Supp. 2d Mot. Class Cert. 17-20.
6 

Case 2:08-ct-00021-D Document 180 Filed 02/23/12 Page 6 of 11

order to resolve preliminary matters, e.g., jurisdiction and venue, is a familiar feature of litigation. See Szabo v. Bridgeport Machines. Inc., 249 F.3d 672,676-677 (7th Cir. 2001) (Easterbrook, J.).
Id. at 2551-52 (footnote and parallel citations omitted) (emphasis removed).
A.
The BOP defendants first assert that Terrell "lacks standing to raise claims regarding dental
or mental health care at Rivers because he has not established, or even alleged, either that he is mentally ill or that he has any serious dental needs." Resp. Opp'n 2d Mot. Class Cert. 1; see id.
10-13. Terrell responds that the BOP defendants "mistakeD Plaintiff's allegations illustrating the
systemic failures at Rivers for his Eighth Amendment claim." Reply Supp. 2d Mot. Class Cert. 2
(emphases in original).
To establish Article ill standing, a plaintiffmust show that: (1) ''the plaintiff ... suffered an
injury in fact-an invasion of a legally protected interest which is (a) concrete and particularized,
and (b) actual or imminent, not conjectural or hypothetical"; (2) there is "a causal connection
between the injury and the conduct complained of"; and, (3) it is "likely, as opposed to merely
speculative, that the injury will be redressed by a favorable decision." Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560--61 (1992) (footnote, citations, and quotations omitted). The asserted
injury must be "fairly traceable to the challenged action of the defendant, and not the result ofthe
independent action of some third party not before the court." Id. at 560 (alterations and quotation
omitted). "[S]tanding is not dispensed in gross." Lewis v. Casey, 518 U.S. 343, 358, n.6 (1996). Rather, "a plaintiff must demonstrate standing for each claim he seeks to press" and "'for each form ofrelief''' that is sought. DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 352 (2006) . . .. While the proof required to establish standing increases as the suit proceeds, see LujiY!, sup1'§, at 561, the standing inquiry remains focused on whether the party invoking jurisdiction had the requisite stake in the outcome when the suit was filed. As noted above, the injury required for standing
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need not be actualized. A party facing prospective injury has standing to sue where the threatened injury is real, immediate, and direct. Davis v. Fed. Election Comm'n" 554 U.S. 724, 734 (2008) (some citations omitted). "Ofcourse, a class action cannot be sustained without a named plaintiff who has standing. . .. The standing requirement winnows out disputes that would be inappropriate for judicial resolution ...." Amador v. Andrews, 655 F.3d 89,99 (2d Cir. 2011). Moreover, this court's role is limited to "provid[ing] reliefto claimants, in individual or class actions, who have suffered, or will imminently suffer, actual harm." Lewis, 518 U.S. at 349. Terrell has alleged an injury in fact: he is a prisoner incarcerated at Rivers who alleges that he is not receiving constitutionally adequate treatment for a serious medical need. Terrell has also alleged a causal connection between the injury and the conduct complained of: he asserts that the BOP defendants are responsible for providing him with medical treatment, are aware that the company with which the BOP has contracted to house him is not providing him that treatment, and have chosen to ignore his failure to receive treatment for his serious medical need. Finally, Terrell's alleged injury is one that could likely be redressed by a favorable decision. Thus, Terrell has standing to assert his Eighth Amendment claim against the BOP defendants in the third amended complaint.
B.
The court next addresses whether Terrell has established "questions oflaw or fact common to the class" as required by Rule 23(a)(2) and whether "the claims or defenses ofthe representative parties are typical of the claims or defenses of the class" as required by Rule 23(a)(3). The BOP defendants assert that "because plaintiff... fails to identify any general policy offederal defendants as the uniform cause of the Eighth Amendment violations that he alleges, the Court here would ..
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· be faced with individualized factual inquiries to determine whether federal defendants have
exhibited deliberate indifference with respect to any particular inmate's serious medical needs."
Resp. Opp'n 2d Mot. Class Cert. 18. The court agrees.
In Wal-Mm, the Supreme Court recently examined the commonality requirement in detail:
The crux of this case is commonality-the rule requiring a plaintiff to show that ''there are questions of law or fact common to the class." Rule 23(a)(2). That language is easy to misread, since "[a]ny competently crafted class complaint literally raises common'questions.'" Nagareda, Class Certification in the Age ofAggregate Proof, 84 N.Y.U.L. Rev. 97, 131-132 (2009). For example: Do all of us plaintiffs indeed work for Wal-Mart? Do our managers have discretion over pay? Is that an unlawful employment practice? What remedies should we get? Reciting these questions is not sufficient to obtain class certification. Commonality requires the plaintiff to demonstrate that the class members "have suffered the same injury," Falcon, supri\, at 157. This does not mean merely that they have all suffered a violation of the same provision of law. Title VII, for example, can be violated in many ways-by intentional discrimination, or by hiring and promotion criteria that result in disparate impact, and by the use of these practices on the part of many different superiors in a single company. Quite obviously, the mere claim by employees of the same company that they have suffered a Title VII injury, or even a disparate-impact Title VII injury, gives no cause to believe that all their claims can productively be litigated at once. Their claims must depend upon a common contention-for example, the assertion ofdiscriminatory bias on the part ofthe same supervisor. That common contention, moreover, must be of such a nature that it is capable of classwide resolution-which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke. . .. "What matters to class certification ... is not the raising ofcommon 'questions'-even in droves-but, rather the capacity of a c1asswide proceeding to generate common answers apt to drive the resolution ofthe litigation. Dissimilarities within the proposed class are what have the potential to impede the generation of common answers." Nagareda, sUPllb at 132.
Wal-Mart Stores, 131 S. Ct. at 2550-51 (footnote omitted) (emphasis removed).
Before and after Wal-Mart, courts have certified classes ofincarcerated persons challenging
specific, written, acknowledged, official policies. See,~, Logoty v. Cnty. of Susquehanni\, 277
F.R.D. 135, 142 (M.D. Pa 2011) ("[C]ommonality is high as each was subjected to the very same
delousing procedure."); Bumgarnerv. N.C. Dep'tofCorr., 276 F.R.D. 452, 456-57 (E.D.N.C. 2011)
9 

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(finding commonality among class members challenging sentence-reductioncredit programs that by operation exclude disabled inmates unable to work); Tyler v. Suffolk Cnty., 253 F.R.D. 8, 10 (D. Mass. 2008) (finding commonality among class members asserting that "the system of bathroom access under which Building 4 operated is per se a violation oftheir Eighth Amendment rights" and noting that "all members of the putative class in the instant case were subject to the same allegedly unlawful policies and, as such, their claims share common questions of law and fact"); Hilton v. Wright, 235 F.R.D. 40, 52 (N.D.N.Y. 2006) (finding commonality among a class challenging a prison-wide agency policy requiring that inmates with Hepatitis C complete a substance abuse program to become eligible for medical treatment); see also Gray v. Hearst Commc'ns, Inc., 444 F. App'x698, 701-02 (4th Cir. 2011) (unpublished) (affirming certification ofclass when "there [was] no dispute that a uniform policy (or obligation) exist[ed] or that such a uniform policy applie[d] to all plaintiffs").
In contrast to the above-referenced cases, Terrell does not challenge a concrete policy. Rather, Terrell challenges a constellation of unspecified "organizations, systems, policies, procedures, practices, acts, and omissions" that allegedly have led to unconstitutional individual deprivations ofmedical attention. See Third Am. Compl. ~~ 66-67. Terrell simply has not met his burden of showing '" [s]ignificant proofthat [the BOP defendants] operated under a general policy of" being deliberately indifferent to the serious medical needs ofRivers's inmates. Wal-Mart, 131 S. Ct. at 2553 (quoting Falcon, 457 U.S. at 159 n.15) (first alteration in original); see Love v. Johanns, 439 F.3d 723, 729 (D.C. Cir. 2006) (holding that "anecdotal evidence" offered by 622 subclass members to show that they were personally denied loan applications "may give the declarants standing to bring individual suits" but "[do] not require the District Court to infer the existence ofa 'common policy ofdiscrimination' that affected the non-declarants, as well. The bald
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allegation that the dec1arants and non-dec1arants alike are unified by a 'common policy' of gender discrimination is insufficient ... under ... Falcon" (emphasis removed)); Reeb v. Ohio Dep't of Rehab. & Corr., 435 F.3d 639, 644--45 (6th Cir. 2006); Schilling v. Kenton Cnty.. Ky., Civil Action No. 1O-143-DLB, 2011 WL 293759, at *7 (E.D. Ky. Jan. 27, 2011); Kress v. CCA ofTenn.. LLC, 272F.R.D. 222,229 (S.D. Ind. 2010); Guerra v. Pub. Safety Concepts, No. 4:05-CV-2322, 2007WL 628430, at *2 (E.D. Mo. Feb. 27, 2007) (unpublished).
m.
Terrell's renewed motion for class certification [D.E. 161.] is DENIED. The court requests that Magistrate Judge Gates hold a status conference and set a schedule to move Terrell's claim towards prompt resolution.
SO ORDERED. This & day of February 2012.
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 IN THE UNITED STATES DISTRICT COURT 
 FOR THE EASTERN DISTRICT OF NORTH CAROLINA 

NORTHERN DIVISION 
 No.2:08-CT-21-D 


KEITH MATHIS, et al.,

)

) 


Plaintiffs,

) 


v.

)

)

OEO OROUP, INC., et al.,

)

) 


Defendants.

) 


ORDER

Gregory Terrell ("Terrell") is an inmate at Rivers Correctional Institution ("Rivers"). Terrell contends that defendants OEO Group, Inc. ("OEO"), the Federal Bureau of Prisons ("BOP"), and Harley Lappin ("Lappin"), Directorofthe BOP (collectively, "BOP defendants"),1 have violated and are violating federal and state law in connection with their medical care. OEO is a private corporation that owns and operates Rivers, and the BOP has a procurement contractwith OEO under which it pays OEO to house federal inmates at Rivers. Terrell seeks declaratory and injunctive relief and wishes to serve as the class representative for all current and future inmates at Rivers.
On November 9, 2009, the court granted defendants' motions to dismiss the amended complaint, but granted a former plaintiffs ("Calland,,)2 request to file a second amended complaint to amend the deficient claims [D.E. 96]. On December 9, 2009, Calland filed a second amended complaint [D.E. 98]. On September 29,2010, the court granted in part defendants' motions to

1 Lappin is sued in his official capacity; therefore, plaintiffs' claims against Lappin are effectively claims against the BOP itself. See Kentucky v. Graham, 473 U.S. 159, 165(1985). Thus, the court refers to the BOP and Lappin collectively as the BOP defendants.
2On September 26, 20 II, Calland and the BOP defendants filed a stipulation ofdismissal without prejudice as to Calland [D.E. 170]. The BOP defendants do not argue that Calland's dismissal changes the court's analysis with respect to the issues on which they seek reconsideration.

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dismiss, dismissed OEO from the action, and granted Calland's motion for leave to file a third amended complaint [D.E. 122]. On October 25,2010, Calland and Terrell filed a third amended complaint. Third Am. Compl. [D.E. 125]. On July 18,2011, the court granted OEO's motion to dismiss and granted in part and denied in part the BOP defendants' motion to dismiss or for summary judgment [D.E. 155].
On August 11,2011, the BOP defendants moved for partial reconsideration [D.E. 159], to which Terrell responded in opposition [D.E. 164], and the BOP defendants replied [D.E. 169]. On August 23, 2011, Terell filed a second motion for class certification [D.E. 161]. On September 16, 2011, the BOP defendants moved to stay the briefing deadlines on Terrell's second motion for class certification [D.E. 165], to which Terrell responded in opposition [D.E. 172], and the BOP defendants replied [D.E. 173]. As explained below, the court denies the BOP defendants' motion for reconsideration and grants their motion to stay. Terrell's second motion for class certification remains pending.
I. In its November 9, 2009 order, the court described in detail the background ofthis case and thus restricts its discussion in this order to the pending motions. Additionally, the court limits its discussion of the allegations in the complaint to those claims remaining after the court's July 18, 2011 order. The third amended complaint alleges that the BOP defendants have provided inadequate medical care to inmates incarcerated at Rivers in violation of the Eighth Amendment, and makes several allegations regarding the BOP's involvement in the day-to-day operations ofRivers. Terrell alleges that the contract between OEO and the BOP "vests the BOP with the power to exercise control over OEO's personnel decisions, policies, and procedures. The BOP, in turn, is charged with
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monitoring and overseeing GEO's compliance with ... contract obligations." Third Am. Compl. ~ 34. The contract also allegedly "provides for on-site BOP monitors at the Rivers facility, charges [the BOP monitors] with 'the technical direction ofthe performance ofall work' performed pursuant to the Rivers Contract, and requires the construction of a 2,500-square-foot office and ten parking spaces for [the BOP monitor's] exclusive use." Id. ~ 36.
According to Terrell, the BOP "has specific responsibility for oversight and monitoring of GEO's activities at Rivers" through the Privatization Management Branch of its Correctional Programs Division. Id. ~ 35. "[T]he BOP's Privatization Management Branch has received administrative complaints from prisoners, including ... Terrell, concerning the medical conditions at Rivers." Id. Terrell and other prisoners bave submitted "Regional Administrative Remedy Appeals to BOP's Privatization Management [B]ranch" and the BOP has rejected such appeals. Id. In addition, "an on-site BOP monitor participates in the prison officer 'main line,' [3] which occurs daily ...." Id. ~ 36. Accordingly, Terrell alleges that, through its on-site involvement and supervision at Rivers via the Privatization Management Branch and participation by BOP monitors in the main line, "the BOP is aware of and continues to disregard the risks and severe harm to prisoner health and safety detailed by Plaintiffs in the Complaint." Id. It "has received actual notice of the harms caused to prisoners in its custody by the grossly inadequate medical care and lack of accessible facilities at Rivers," and "ba[s] actual notice of prison complaints about the medical conditions and can get visual confirmation of the lack ofaccessibility for disabled prisoners in the facility." Id." 35-36. Terrell claims that the allegedly inadequate medical care provided at Rivers violates the Eighth Amendment of the United States Constitution, seeks injunctive relief, and
3 "During the daily 'main line,' prison staff stand together outside of the dining hall at mealtime to make themselves available for informal discussions with prisoners and to receive and address their complaints." Third Am. Compl. ~ 36.
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proposes to proceed as a class action on behalfofcurrent and future inmates at Rivers. Id. ~ 63-71. On July 18,2011, in ruling on the BOP defendants' third motion to dismiss or for summary
judgment, the court addressed and rejected in part the BOP defendants' newly asserted contention that the complaint is subject to dismissal for plaintiffs' failure to exhaust their administrative remedies before filing their original complaint on June 28, 2007, or for plaintiffs' failure to provide sufficient detail to exhaust a claim for systemic problems in the medical care provided at Rivers. [D.E. 155] 7-12. The BOP defendants seek reconsideration of the court's determinations with respect to exhaustion. Defs.' Mem. Supp. Mot. Recons. [D.E. 160] 1.
n.
The BOP defendants seek reconsideration of the court's determination on these issues pursuant to Federal Rule of Civil Procedure 54(b), which provides that
any order or other decision, however designated, that adjudicates fewer than all the claims or the rights and liabilities offewer than all the parties does not end the action as to any of the claims or parties and may be revised at any time before the entry of ajudgment adjudicating all the claims and all the parties' rights and liabilities. Fed. R. Civ. P. 54(b). Before a:final order is entered, "a district court retains the power to reconsider and modify its interlocutory judgments, including partial summary judgments, at any time prior to final judgment when such is warranted." Am. Canoe Ass'n. Inc. v. Murphy Farms. Inc., 326 F.3d 505,514-15 (4th Cir. 2003) (citing Fayetteville Investors v. Commercial Builders. Inc., 936 F.2d 1462, 1469 (4th Cir. 1991)). "Motions for reconsideration of interlocutory orders are not subject to the strict standards applicable to motions for reconsideration of a final judgment," but are
"committed to the discretion of the district court ...." Am. Canoe, 326 F.3d at 514-15; see S.aim
Annes Dev. Co.. Inc. v. Trabicn, No. 10-2078,2011 WL 3608454, at *3 (4th Cir. Aug. 17,2011) (per curiam) (unpublished).
4 Case 2:08-ct-00021-D Document 177 Filed 01/09/12 Page 4 of 6

The BOP defendants do not cite to any new evidence or subsequently decided case law, focusing instead on whether the court's partial rejection of their arguments with respect to exhaustion ofadministrative remedies was erroneous. See Defs.' Mem. Supp. Mot. Recons. 1.4 The BOP defendants first seek reconsideration ''with respect to the Court's ruling that plaintiffs have satisfied the PLRA's exhaustion requirement with respect to all claims asserted in ~ 39(a) through (c) oftheir Third Amended Complaint." Id. at 4. The BOP defendants then reprise their argument that the plaintiffs' grievances describing inadequacies in the health care provided to them are insufficient in detail to exhaust "the numerous claims set forth in" paragraph thirty-nine ofthe Third Amended Complaint. Id.
The court has considered (again) the arguments. The court denies the request for reconsideration. See,~, Amador v. Andrews, 655 F.3d 89, 104 (2d Cir. 2011); Riggs v. Valdez, No. 1:09-CV-OIO-BLW, 2010 WL 4117085, at *12-14 (D. Idaho Oct. 18,2010); Flynn v. Doyle, No. 06-C-537, 2007 WL 805788, at * 10-13 (E.D. Wis. Mar. 14,2007) (unpublished).
Next, the BOP defendants seek reconsideration ofthe court's determination that ''the timing of plaintiffs' exhaustion-prior to their filing ofthe Third Amended Complaint but after the filing ofthe original Complaint by a different set ofplaintiffs-did not affect the conclusion that they had properly exhausted their claims." Defs.' Mem. Supp. Mot. Recons. 10.S The BOP defendants also
4 The Prison Litigation Reform Act of 1995 ("PLRA") states that "[n]o action shall be brought with respect to prison conditions under [42 U.S.C. §] 1983 ... or any other Federal law, by a prisoner ... until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a); see Woodford v. Ngo, 548 U.S. 81, 84-85 (2006). The court previously reviewed the PLRA's exhaustion requirements, [D.E. 155] 8, and does not repeat that discussion in this order.
S To the extent the BOP defendants complain that the court's prior determination was based on case law that it previously had no opportunity to address, Defs.' Mem. Supp. Mot. Recons. 11 nJ, the court notes that the BOP defendants first asserted their arguments concerning exhaustion by new plaintiffs after the filing of the original complaint in their reply brief.
5 
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seek reconsideration ofthe court's ruling that they "continue to bear the burden to establish that the original/fonner plaintiffs failed to satisfy the PLRA exhaustion requirement, even though those individuals are no longer parties in the case, in order to establish that the current plaintiffs have failed to exhaust their claims." Id. at 12.
Although the BOP defendants seek to distinguish the cases cited by the court based on whether the original plaintiffs remained in the case or had been dismissed as moot at the time of filing the amended complaint, the BOP defendants do not explain how this distinction alters the court's analysis. Therefore, the court denies the motion for reconsideration.
m.
For the reasons stated above, the BOP defendants' motion for reconsideration [D.E. 159] is DENIED. The BOP defendants' motion to stay [D.E. 165] is GRANTED, and the BOP defendants shall file their response to plaintiffs' motion for class certification [D.E. 161], which remains pending, not later than January 30,2012. Plaintiffs shall file any reply not later than February 6, 2012. The court hereby REFERS the parties' proposed discovery schedules [D.E. 156-157] to United States Magistrate Judge James E. Gates for entry of a scheduling order.
SO ORDERED. This...:L day of January 2012.
r;k .. ~y~
J SC. DEVERm ' 
 Chief United States District Judge 

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