Case 8:09-cv-01891-EAK-TBM Document 10 Filed 02/18/10 Page 1 of 22 PageID 39

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION

MICHAEL LINDSEY GAMBUZZA, CHRISTOPHER SCOTT DRESCHER, BARBARA SCHNURR, and DEBORAH SORENSEN, on behalf of themselves and all others similarly situated,

Plaintiffs,

v.

Case No. 8:09-cv-01891-EAK-TBM

LIEUTENANT DIANE PARMENTER, CAPTAIN ANTHONY ACKLES, MAJOR JAMES HIGGINBOTHAM, and SHERIFF BRAD STEUBE, in their official capacities,

Defendants. ______________________________________/

FIRST AMENDED COMPLAINT

Introduction

1. Plaintiffs,Michael LindseyGambuzza, Christopher Scott Drescher, Barbara Schnurr, and

Deborah Sorensen, on behalf of themselves and all others similarly situated, bring this class

action pursuant to 42 U.S.C. Section 1983 and Federal Rule of Civil Procedure 23(b)(2).

Plaintiffs Gambuzza and Drescher are inmates at the Manatee County Jail and they seek to

represent a class of Manatee CountyJail Inmates,defined below as the “Inmate Class.” Plaintiffs

Schnurr and Sorensen are family members of inmates at the Manatee County Jail and seek to

represent a class of family members and friends of Manatee County Jail inmates, defined below

as the “Family Members and Friends Class.”

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2. The Plaintiffs, on behalf of themselves, the Family Members and Friends Class, and the Inmate Class, seek to enjoin the Defendant officials of the Manatee County Sheriff’s Office (“MCSO”) and Manatee County Jail from enforcing, in violation of the First and Fourteenth Amendments to the United States Constitution, a “post-card only” mail policy under which inmates at the Manatee County Jail are permitted to receive incoming mail only in the form of postcards of the size of 3.5 inches by 4.25 inches to 4.25 inches by 6 inches, on which text must be typed or written in black or blue ink (the “Postcard-Only Mail Policy”). 3. The Plaintiffs, on behalf of themselves, the Family Members and Friends Class, and the Inmate Class, also seek a declaratory judgment that the Postcard-Only Mail Policy is unconstitutional, on its face and as applied, because it infringes on the First Amendment rights of both those who wish to communicate with inmates in the Manatee County Jail and the inmates who receive those communications.
Jurisdiction and Venue 4. Jurisdiction of this Court is invoked under 28 U.S.C. Section 1331 (federal question) as this action arises under the Constitution and laws of the United States, and pursuant to 28 U.S.C. Section 1343(a)(3) (civil rights), as this action seeks to redress the deprivation, under color of state law, of rights, privileges, and immunities secured to the Plaintiffs by the First and Fourteenth Amendments to the United States Constitution and the laws of the United States. 5. The Plaintiffs’ claims for relief are predicated on 42 U.S.C. Section 1983, which authorizes actions to redress the deprivation, under color of state law, of rights, privileges, and
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immunities secured to the Plaintiffs by the First and Fourteenth Amendments to the United States Constitution and the laws of the United States. 6. The Plaintiffs’ demands for declaratory relief and injunctive relief are authorized by 28 U.S.C. Sections 2201 and 2202 and Federal Rule of Civil Procedure 57 and 65. 7. The Plaintiffs’ claim for attorneys’ fees and costs is brought pursuant to 42 U.S.C. Section 1988, which authorizes the award of attorneys’ fees and costs to prevailing plaintiffs in actions brought pursuant to 42 U.S.C. Section 1983. 8. Venue properly lies in this division of the Middle District of Florida pursuant to Middle District of Florida Local Rule 1.02 and 28 U.S.C. Section 1391. A substantial portion of the events or omissions giving rise to the Plaintiffs’ claims occurred in this division of the Middle District of Florida.
Parties 9. Plaintiff Michael Lindsey Gambuzza is a pre-trial detainee who has been held in the Manatee County Jail since May 4, 2008. 10. Plaintiff Christopher Scott Drescher is a pre-trial detainee who has been held in the Manatee County Jail since May 4, 2008. 11. Plaintiff Barbara Schnurr is the sister of an inmate at the Manatee County Jail, Michael Johnson. Plaintiff Schnurr’s brother is a pre-trial detainee who has been held in the Manatee County Jail since August 12, 2009.
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12. Plaintiff Deborah Sorensen is the mother of Plaintiff Christopher Scott Drescher, an inmate at the Manatee County Jail. Plaintiff Christopher Scott Drescher is a pre-trial detainee who has been held in the Manatee County Jail since May 4, 2008. 13. Defendant Sheriff Brad Steube is now, and at all material times has been, the Manatee County Sheriff. As Manatee County Sheriff, he is charged with the care and custody of inmates at the Manatee County Jail. Plaintiff Gambuzza wrote a letter, dated May 21, 2009, to Defendant Steube complaining about the Postcard-Only Mail Policy. Defendant Steube did not respond to this letter or take any action to end the Postcard-Only Mail Policy. Defendant Steube is sued in his official capacity for injunctive and declaratory relief, attorneys fees, and costs. 14. Defendant Major James Higginbotham is now, and at all material times has been, the Corrections Services Bureau Chief of the Manatee County Sheriff’s Office. As Corrections Services Bureau Chief, he is charged with the responsibility for the operation and management of the Manatee County Jail. Plaintiff Gambuzza wrote a letter, dated May 21, 2009, to Defendant Higginbotham complaining about the Postcard-Only Mail Policy. Defendant Higginbotham did not respond to this letter or take any action to end the Postcard-Only Mail Policy. Defendant Higginbotham is sued in his official capacity for injunctive and declaratory relief, attorneys fees, and costs. 15. Captain Anthony Ackles is now, and at all material times has been, the Operations Division Commander at the Manatee County Jail. As Operations Division Commander, he has supervisory responsibility over the mail room at the Manatee County Jail. Captain Ackles has affirmed the denial of grievances Plaintiffs Gambuzza and Drescher have filed regarding the
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Postcard-Only Mail Policy. Defendant Ackles is sued in his official capacity for injunctive and declaratory relief, attorneys fees, and costs. 16. Lieutenant Diane Parmenter is now, and at all material times has been, responsible for the operation and management of the mail room at the Manatee County Jail. Lieutenant Parmenter has denied grievances Plaintiffs Gambuzza and Drescher have filed regarding the Postcard-Only Mail Policy. Defendant Parmenter is sued in her official capacity for injunctive and declaratory relief, attorneys fees, and costs. 17. The actions of all Defendants as alleged herein were taken under color of state law.
Factual Allegations Facts Relating to the Manatee County Jail Generally 18. The Manatee County Jail is located in Palmetto, Florida. 19. Contact visits are not available to inmates at the Manatee County Jail. 20. The only visitation available to members of the public whose family members or friends are being held at the Manatee County Jail is via a videoconference system maintained at an offsite Visitation Center. 21. Family members and friends wishing to visit an inmate are required to make an appointment at least one day in advance. 22. Family members and friends are limited to three 40-minute visits via videoconference at the Visitation Center per week. 23. Inmates are not permitted to receive incoming calls and MCSO employees are not permitted to deliver messages to inmates.
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24. The only method by which any person may have telephone contact with an inmate at the Manatee County Jail is by a call placed by the inmate either as a collect call or via a calling card purchased by the inmate. 25. Many indigent inmates are unable to afford the cost of purchasing calling cards for use in contacting their family members and friends. 26. Inmates are not able to make collect calls to certain types of telephones and telephone numbers that are not equipped to accept collect calls, including some cell phone numbers, business phone numbers, commercial phone numbers, and numbers that are serviced by Local Exchange Carriers that do not bill for collect calls 27. Additionally, the cost of collect phone calls from the Manatee County Jail makes it prohibitively expensive for the families and friends of many inmates to maintain contact with the inmates by telephone. 28. As a result, many family members and friends are unable to receive calls from inmates at the Manatee County Jail. 29. Accordingly, mail is the most feasible and practicable method of communication for many Manatee County Jail inmates and their family members and friends.
Facts Relating to the Postcard-Only Mail Policy 30. Effective June 1, 2009, the Defendants instituted the Postcard-Only Mail Policy, under which non-privileged incoming mail is limited to postcards that are at least 3.5 inches by 4.25 inches but no larger than 4.25 inches by 6 inches, on which text must be typed or written in black or blue ink.
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31. Under the Postcard-Only Mail Policy, the family members, friends, or loved ones of

inmates at the Manatee County Jail are permitted to send the inmate mail only on postcards.

32. The Postcard-Only Mail Policy provides that the following types of correspondence are

prohibited and will be returned to the sender:

-

Defaced or altered postcards.

-

Plastic or wrappings on postcards.

-

Postcards marked with paint, magic markers, or crayons.

-

Postcards with stickers or labels (including address labels).

-

Postcards with watermarks or stained in any manner.

-

Postcards with any biohazards, including lipsticks and perfumes.

-

Postcards depicting nudity, weapons, or gang references.

-

Oversized post cards.

33. Mail that does not conform to these requirements is returned to the sender, or if it does

not contain a return address, is sent back to the Post Office as non-deliverable, where it is

destroyed.

34. The Postcard-Only Mail Policy prohibits, for instance, the mailing to an inmate of a

drawing made by a child relative (some of whom cannot write yet), a copy of the child’s report

card or test scores, or a photograph of the child.

35. For example, Plaintiff Schnurr has a daughter who is a toddler and a son who is eleven.

She would like to send her brother pictures of her children and to allow her son to send his uncle

drawings, but the Postcard-Only Mail Policy prohibits correspondence of this nature. Plaintiff

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Gambuzza complained in a grievance dated May 14, 2009, prior to the implementation of the Postcard-Only Mail Policy, that the proposed policy would mean inmates “cannot have young children color pictures for us.” Similarly, Plaintiff Sorensen is unable to send her son pictures of family members which would remind him of all of the people who still support him. A nonPlaintiff inmate complained in a grievance dated May 16, 2009, that the Postcard-Only Mail Policy will deny his seventy-two-year-old mother “the right to send me family photos,” and would prevent his brother from sending him pictures of his nieces. 36. The Postcard-Only Mail Policy additionally prevents, for example, a family member, spouse, or friend of an inmate at the Manatee County Jail from sending the inmate family photographs; newspaper or magazine clippings regarding the inmate’s case, family events, or news that would be of interest to the inmate; religious pamphlets; or material printed from the internet regarding topics of interest to the inmate. 37. For example, Plaintiff Schnurr reports that her mother wishes to send her son, Plaintiff Schnurr’s brother, religious pamphlets, but the Postcard-Only Mail Policy does not allow family members to send religious materials of this nature to an inmate of the Manatee County Jail. 38. The Postcard-Only Mail Policy also limits the ability of family members and friends of inmates at the Manatee County Jail to fully express the messages they wish to convey by drastically limiting the amount of space available on which to place a message, which for many friends and family members is the only available method to communicate with the inmate. 39. For example, Plaintiff Sorensen resides out of state and is unable to visit. She is unable to accept telephone calls from her son, Plaintiff Drescher, because she only has a cell phone
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number. A non-Plaintiff inmate complained in a grievance dated May 11, 2009, that “mail is the only way I can correspond with my family” because “they live out of state” and preventing him from receiving letters “will only keep us from talking and them letting me know what is going on with them” because “you can only write so much on a postcard.” The same inmate explained in a grievance dated June 24, 2009, that “some famil[ies] don’t have phones” and “can’t visit.” Another non-Plaintiff inmate stated in a grievance dated June 11, 2009, that “I don’t get money on the phone or in my account for phone calls. This is the only way for me to find out if my family is OK. My grandparents are from another state and very sick. I cannot go without knowing if they are all right. Please let us get our letters. This matter is very important to me.” The same inmate requested in a grievance dated June 17, 2009, that the Postcard-Only Mail Policy be rescinded because “most of us can’t get call[s] because collect calls get to be to[o] much for [our] famil[ies] to pay.” Still another inmate stated in a grievance dated May 11, 2009, “We have family that we need to correspond to. Some people don’t get money on the phone. . . . My letters are important to me it brings my spirits up. We cannot get a good letter on a 4.25 in card.” That inmate stated in a grievance dated June 11, 2009, “Many people don’t get visits or phone calls. Some people’s only way to communicate with our famil[ies] are through letters. We can not possibly get enough info[rmation] on the status of our family or friends on a small postcard.” 40. The Postcard-OnlyMail Policy further prevents family members or friends from sending confidential information to inmates with even a minimal amount of privacy, such as medical
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information regarding the inmate or a family member, financial information, information regarding a minor child, or information or material regarding their cases. 41. For example, members of Plaintiff Schnurr’s family who live out of state had to communicate to Plaintiff Schnurr’s brother while he was in the Manatee County Jail the news that his stepfather had passed away. They did not wish to convey such personal and emotional information via postcard, the only available means to communicate such information under the Postcard-OnlyMail Policy. Similarly, Plaintiff Gambuzza complained in a grievancedated May 13, 2009, “[W]hat about when our family must convey to us confidential information about medical issues or info[rmation] about our juvenile children? You cannot expect that type of stuff to be announced to the world on a postcard!” Similarly, a non-Plaintiff inmate complained in a grievance dated June 24, 2009, “Due to the fact my family has to use postcards that anyone can read publicly, myfamily is denied the chance to share private family issues. Some families don’t have phones [and] can’t visit.” Another non-Plaintiff inmate complained in a grievance dated July 15, 2009, that the Postcard-Only Mail Policy makes it difficult for “families to have any kind of personal r[apport].” A different non-Plaintiff inmate complained in a grievance dated September 10, 2009, that the Postcard-Only Mail Policy subjected his incoming correspondence “to the scrutiny of the content by Sheriff’s employees, postal employees, and others.” 42. The Postcard-Only Mail Policy prohibits friends and family members from sending inmates stamped envelopes. As the only writing materials provided to indigent inmates, such as Plaintiffs Gambuzza and Drescher, are postcards, the preclusion of mailing stamped envelopes to inmates effectively makes the Postcard-Only Mail Policy applicable as well to outgoing mail
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sent by indigent inmates. In addition, indigent inmates are not provided writing paper even for privileged correspondence with their attorneys, and they must write such correspondence on postcards, which are then placed in envelopes to be mailed to the attorneys. 43. The Postcard-Only Mail Policy additionally infringes upon the limited degree of privacy inmates have in incoming correspondence. Based on information and belief, incoming inmate mail is read and openly discussed by prison officials and guards prior to delivery to inmates, and inmates report being the target of comments and jokes from guards regarding the contents of correspondence received via postcard. The non-confidential review and discussion of inmate mail violates inmate privacy rights at the point prison security interests are satisfied. Prison security interests do not require non-confidential review of the contents of inmates’ correspondence. A system that allows flagrant violation of inmate privacy rights exhibits deliberate indifference to those rights. 44. Defendants, by enactingthe Postcard-Only Mail Policy, have caused substantial harm to the Plaintiffs. The Postcard-Only Mail Policy infringes on the rights of friends and family members of inmates to communicate in a complete and meaningful way with the inmates and to express themselves fully, and additionallyinfringes on therights of the inmates to receive such communications. 45. The Postcard-Only Mail Policy substantially chills the Friends and Family Members’ ability to communicate with the inmates and violates their rights under the First Amendment. 46. There is not a valid, rational connection between the Postcard-Only Mail Policy and any legitimate governmental interest put forward in an attempt to justify it.
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47. There are no adequate alternative means for Plaintiffs to exercise their rights to send and receive correspondence as a result of the Postcard-Only Mail Policy. 48. Defendants’accommodation ofFriends and Family Members’ right to send and Inmates’ right to receive correspondence other than by postcard will not overly burden correctional officers, other inmates, or the allocation of prison resources generally. 49. There are many ready alternatives to the Postcard-Only Mail Policy, as is illustrated by the fact that up until June 1, 2009, inmates were permitted to receive ordinary mail, with no requirement that the mail be on a postcard and no restriction regarding ink color.
Class Representation Allegations 50. This action is brought as a class action pursuant to Federal Rule of Civil Procedure 23(b)(2). 51. The proposed Family Members and Friends Class consists of all persons who are the family members and/or friends of individuals who are or have been incarcerated at the Manatee County Jail since June 1, 2009. 52. The proposed Inmate class consists of all persons who are or have been incarcerated at the Manatee County Jail since June 1, 2009.
Numerosity 53. The members of the class are so numerous that it would be impractical and uneconomical to require joinder of each class member. The average daily population of inmates at the Manatee County Jail is over 1000 inmates. More than 19,000 inmates are admitted to the Manatee County Jail annually.
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Commonality 54. The claims of Plaintiffs Schnurr and Sorensen, proposed Class Representatives of the Family Members and Friends Class, raise questions of law and fact which are common to the members of the Family Members and Friends Class. The common questions raised include:
a. Whether the Postcard-Only Mail Policy at the Manatee County Jail violates the First Amendment rights of friends and family members who wish to communicate with Manatee County Jail inmates?
b. Whether there is a valid, rational connection between the Postcard-Only Mail Policy and a legitimate government interest?
c. Whether alternative means of exercising their First Amendment rights to communicate with Manatee County Jail inmates remain available to the friends and family members of those inmates?
d. What impact accommodating the First Amendment rights of friends and family members who wish to communicate with Manatee County Jail inmates will have on guards, inmates, and the allocation of jail resources?
e. Whether ready alternatives are available that accommodate the First Amendment rights of family members and friends who wish to communicate with Manatee County Jail inmates?
f. Whether correspondence between family members and friends and Manatee County Jail inmates provides rehabilitative benefits, bolsters inmate morale, and promotes adjustment in the institution and the community? 13

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55. The claims of Plaintiffs Gambuzza and Drescher, proposed Class Representatives of the Inmate Class, raise questions of law and fact which are common to those of the Inmate Class. The common questions raised include:
a. Whether the Postcard-Only Mail Policy at the Manatee County Jail violates the First Amendment rights of Manatee County Jail inmates?
b. Whether there is a valid, rational connection between the Postcard-Only Mail Policy and a legitimate government interest?
c. Whether alternative means of exercising their First Amendment rights to receive communications from their family members and friends remain available to Manatee County Jail inmates?
d. What impact accommodating the First Amendment rights of Manatee County Jail inmates to receive communications from their family members and friends will have on guards, inmates, and the allocation of jail resources?
e. Whether ready alternatives are available that accommodate the First Amendment rights of Manatee County Jail inmates?
f. Whether correspondence between family members and friends and Manatee County Jail inmates provides rehabilitative benefits, bolsters inmate morale, and promotes adjustment in the institution and the community?
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Typicality 56. The claims of Plaintiffs Schnurr and Sorensen, proposed Class Representatives of the Family Members and Friends Class, are typical of the claims of the Family Members and Friends Class in at least the following respects:
a. The claims of Plaintiffs Schnurr and Sorensen raise questions of law and fact common to those of the Family Members and Friends Class, as more fully described in the preceding subsection.
b. The harm to Plaintiffs Schnurr and Sorensen are similar in kind to the harm suffered by other members of the Family Members and Friends Class.
c. The claims of Plaintiffs Schnurr and Sorensen arise from the same course of conduct by Defendants as the claims of the Family Members and Friends Class.
d. The relief sought by Plaintiffs Schnurr and Sorensen is the same as the relief sought on behalf of the Family Members and Friends Class.
57. The claims of Plaintiffs Gambuzza and Drescher, proposed Class Representatives of the Inmate Class, are typical of the claims of the Inmate Class in at least the following respects:
a. The claims of Plaintiffs Gambuzza and Drescher raise questions of law and fact common to those of the Inmate Class, as more fully described in the preceding subsection.
b. The harm to Plaintiffs Gambuzza and Drescher is similar in kind and amount to the harm suffered by other members of the Inmate Class.
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c. The claims of Plaintiffs Gambuzza and Drescher arise from the same course of conduct by Defendants as the claims of the Inmate Class.
d. The relief sought by Plaintiffs Gambuzza and Drescher is the same as the relief sought on behalf of the Inmate Class. Adequacy of Class Representation
58. Plaintiffs Schnurr and Sorensen, proposed Class Representatives of the FamilyMembers and Friends Class, adequately represent the interests of the members of the Family Members and Friends Class because:
a. The interests of Plaintiffs Schnurr and Sorensen are aligned with those of the class members and they have no interests adverse to or in conflict with the members of the Family Members and Friends Class;
b. Plaintiffs Schnurr and Sorensen understand the duties and responsibilities of serving as class representative and take seriously their duties as class representatives.
c. The claims of Plaintiffs Schnurr and Sorensen claims are typical of the claims of the Family Members and Friends Class and the issues raised by their claims are in common with those of the class, and for all of the foregoing reasons they more than adequately represent the Family Members and Friends Class.
59. Plaintiffs Gambuzza and Drescher, proposed Class Representatives of the Inmate Class, adequately represent the interests of the members of the class because:
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a. The interests of Plaintiffs Gambuzza and Drescher are aligned with those of the class members and neither Plaintiff Gambuzza nor Plaintiff Drescher has any interests adverse to or in conflict with the members of the Inmate Class;
b. Plaintiffs Gambuzza and Drescher understand the duties and responsibilities of serving as class representative and take seriously their duties as class representatives.
c. The claims of Plaintiffs Gambuzza and Drescher are typical of the claims of the Inmate Class and the issues raised by their claims are in common with those of the Inmate Class, and for all of the foregoing reasons Plaintiffs Gambuzza and Drescher more than adequately represent the class.
60. James E. Felman, Katherine Earle Yanes, and Kynes, Markman & Felman, P.A., attorneys for Plaintiffs Gambuzza, Drescher, Schnurr, and Sorensen; the Family Members and Friends Class; and the Inmate Class, adequately represent these Classes; James E. Felman, Katherine Earle Yanes, and Kynes, Markman & Felman, P.A. have successfully litigated numerous complex class action cases in state and federal court, as well as actions pursuant to 42 U.S.C. Section 1983.
Predominance of Common Questions 61. The common questions of law and fact set forth in Paragraphs 52 and 53 predominate over any individual issues.
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62. Defendants have subjected and continue to subject all class members to the same Postcard-Only Mail Policy and the Postcard-Only Mail Policy is applied and has been applied to all class members.
Superiority of Class Resolution Over Piecemeal Individual Claims 63. Class action litigationis the onlyeconomicallyviable way to provide legal representation for the claims of the thousands of class members who would find it financially infeasible to individually prosecute their claims. Only by class certification can their rights be protected, making class representation the superior method of adjudicating the claims raised in this action. 64. Defendants have acted on grounds generally applicable to all of the members of each of the Family Members and Friends Class and the Inmate Class, thereby making final injunctive relief or declaratory relief concerning the class as a whole appropriate.
Count I Claim for Violation of Constitutional Rights
against all Defendants on behalf of the Family Members and Friends Class
(Postcard-Only Mail Policy) 65. Plaintiffs Schnurr and Sorensen hereby incorporate byreference all allegations contained in Paragraphs 1 through 62 of this Amended Complaint as if fully set forth herein. 66. Plaintiffs Schnurr and Sorensen and the members of the Family Members and Friends Class have been and continue to be denied their rights to freedom of speech guaranteed under the First and Fourteenth Amendments to the United States Constitution, in violation of 42 U.S.C.
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Section 1983 by Defendants’ implementation, acting jointly and in concert, of the Postcard-Only Mail Policy. 67. Defendants knew or should have known that their implementation of the Postcard-Only Mail Policy denied and deprived Plaintiffs Schnurr and Sorensen and the members of the Family Members and Friends Class of their rights to freedom of speech guaranteed under the First and Fourteenth Amendments to the United States Constitution, in violation of 42 U.S.C. Section 1983. 68. Plaintiffs Schnurr and Sorensen and the members of the Family Members and Friends Class suffered, and continue to suffer, irreparable harm as a direct and proximate result of the denial of their rights to freedom of speech guaranteed under the First and Fourteenth Amendments to the United States Constitution.
Count II Claim for Violation of Constitutional Rights
against all Defendants on behalf of the Inmate Class (Postcard-Only Mail Policy) 69. Plaintiffs Gambuzza and Drescher hereby incorporate by reference all allegations contained in Paragraphs 1 through 62 of this Amended Complaint as if fully set forth herein. 70. Plaintiffs Gambuzza and Drescher and the members of the Inmate Class have been and continue to be denied their rights to freedom of speech guaranteed under the First and Fourteenth Amendments to the United States Constitution, in violation of 42 U.S.C. Section 1983 by Defendants’ implementation, acting jointly and in concert, of the Postcard-Only Mail Policy.
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71. Defendants knew or should have known that their implementation of the Postcard-Only Mail Policy denied and deprived Plaintiffs Gambuzza and Drescher and the members of the Inmate Class of their rights to freedom of speech guaranteed under the First and Fourteenth Amendments to the United States Constitution, in violation of 42 U.S.C. Section 1983. 72. Plaintiffs Gambuzza and Drescher and the members of the Inmate Class suffered, and continue to suffer, irreparable harm as a direct and proximate result of the denial of their rights to freedom of speech guaranteed under the First and Fourteenth Amendments to the United States Constitution.
Request for Relief
WHEREFORE Plaintiffs respectfully request that the Court grant the following relief: (A) declare that the Defendants’ policies, practices, omissions, and acts as described
in this Amended Complaint, and specifically the implementation of the PostcardOnly Mail Policy, violate the rights of Plaintiffs Schnurr and Sorensen and the members of the Family Members and Friends Class under the First and Fourteenth Amendments to the United States Constitution; (B) declare that the Defendants’ policies, practices, omissions and acts as described in this Amended Complaint, and specifically the implementation of the PostcardOnly Mail Policy, violate the rights of Plaintiffs Gambuzza and Drescher and the members of the Inmate Class under the First and Fourteenth Amendments to the United States Constitution;
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(C) declare that the Postcard-Only Mail Policy is unconstitutional on its face and as applied under the First and Fourteenth Amendments to the United States Constitution;
(E) enter an Order: (1) enjoining Defendants and their successors in office; their servants, agents, and employees; and those acting in concert with them, from further violation of Plaintiffs’ First Amendment and Fourteenth Amendment rights and specifically, from enforcing the Postcard-Only Mail Policy; and (2) ordering Defendants to provide notice to members of the Family Members and Friends Class and the Inmate Class regarding the termination of the Postcard-Only Mail Policy;
(F) award Plaintiffs their costs and attorneys’ fees arising out of this litigation, pursuant to 42 U.S.C. Section 1988, and any other applicable law, and
(G) grant Plaintiffs such other and further relief as the Court may deem just and equitable.
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Respectfully submitted,
/s/ Katherine Earle Yanes James E. Felman, FB#775568 jfelman@kmf-law.com Katherine Earle Yanes, FB#159727 kyanes@kmf-law.com KYNES, MARKMAN & FELMAN, P.A. Post Office Box 3396 Tampa, Florida 33601-3396 Telephone: (813) 229-1118 Facsimile: (813) 221-6750
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on February18, 2010, I electronically filed the foregoingwith
the Clerk of the Court.
I further certify that a copy of the foregoing Amended Complaint, along with a Notice
of Lawsuit and Request for Waiver of Service, has been furnished by U.S. Mail on February 18,
2010, to:
Lieutenant Diane Parmenter Captain Anthony Ackles
Major James Higginbotham And Sheriff Brad Steube c/o Michelle Hall General Counsel
Manatee County Sheriff’s Office 600 Highway 301 Boulevard West
Bradenton, FL 34205
/s/ Katherine Earle Yanes
Katherine Earle Yanes
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 Case 8:09-cv-01891-EAK-TBM Document 3 Filed 09/22/09 Page 1 of 1 PageID 20
UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION

MICHAEL LINDSEY GAMBUZZA, et aI., Plaintiffs,
v. LIEUTENANT PARMENTER, et aI.,
Defendants.
------------------------~/
ORDER

Case No. 8:09-cv-1891-T-27TBM

Pursuant to Local Rule 1.04(a), this action is TRANSFERRED to the Honorable
Elizabeth A. Kovachevich with her consent and for all further proceedings. See Gambuzza. et aI.
v. Parmenter. et aI., 8:09-cv-1229-T-17TBM.
, ~ 2/~"" DONE and ORDERED in Tampa, Florida, on,r....~~'~~==+-----'~_ _ _ _, 2009.

SA:sfc

~'~1~7" WHITTEMORE STATES DISTRICT JUDGE

 
 Case 8:09-cv-01891-EAK-TBM Document 18 Filed 04/15/10 Page 1 of 3 PageID 102

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION

MICHAEL LINDSEY GAMBUZZA, etc., et al.,

CASE NO. 8:09-cv-1891-T-17TBM

Plaintiff,

v.

JAMES HIGGINBOTHAM, etc., et al.,

Defendants. ___________________________________/

DEFENDANTS MOTION TO DISMISS (AND MEMORANDUM OF LAW)

The Defendant, LIEUTENANT DIANE PARMENTER, CAPTAIN ANTHONY

ACKLES, MAJOR JAMES HIGGINBOTHAM, in their official capacities, through their

undersigned attorneys, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure,

files this his Motion to Dismiss, and as grounds therefore would state as follows:

1. On or about September 4, 2010, the Plaintiff, who was proceeding pro se,

filed his §1983 Civil Rights Complaint alleging violations of his rights secured by the United

States Constitution. [D.E. #1]. Specifically, he alleged that the “postcards-only” mail policy

at the Manatee County Jail violated his constitutional rights.

2. On or about October 26, 2010, Katherine Yanes, James E. Felman, and

Kynes, Markman, and Felman, P.A. filed their Motion to Be Appointed as Pro Bono Counsel

[D.E. #6], which was granted by the Court on October 28, 2010. [D.E. #7].

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3. On or about February 18, 2010, Plaintiff filed his Amended Complaint naming LIEUTENANT DIANE PARMENTER, CAPTAIN ANTHONY ACKLES, MAJOR JAMES HIGGINBOTHAM, and SHERIFF BRAD STEUBE as defendants, in their official capacities. [D.E.# 10].
4. It is duplicitous to name all four (4) of these Defendants in their official capacities. Therefore, the Plaintiff’s Amended Complaint should be dismissed as to Defendants LIEUTENANT DIANE PARMENTER, CAPTAIN ANTHONY ACKLES, MAJOR JAMES HIGGINBOTHAM, in their official capacities.
WHEREFORE, the Defendants respectfully request this Honorable Court grant this Motion dismissing the Plaintiff’s Amended Complaint with prejudice.
Further, and in support of this Motion, the Defendants would refer the Court to the Memorandum of Law attached hereto, and by reference, made a part hereof.
MEMORANDUM OF LAW “[W]hen an officer is sued under Section 1983 in his or her official capacity, the suit is simply ‘another way of pleading an action against an entity of which an officer is an agent.’” See Busby v. City of Orlando, 931 F.2D 764, 776 (11th Circuit 1991)(quoting Kentucky v. Graham, 473 U.S. 159, 165 (1985)). “Such suits against municipal officers are therefore, in actuality, suits against the [agency] that the officer represents. See Busby v. City of Orlando at 776. In the present case, the Plaintiff has named four (4) employees of the
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Manatee County Sheriff’s Office solely in their official capacities, including the Sheriff1. In

naming the four (4) Defendants in their official capacities, the Plaintiff essentially has

brought suit against the Manatee County Sheriff’s Office four (4) times. As such, allowing

the Complaint to progress against Defendants Higginbotham, Ackles, and Parmenter, in their

official capacities, is unnecessary and redundant.

CONCLUSION

Plaintiff’s Amended Complaint should be dismissed as to Defendants Higginbotham,

Ackles, and Parmenter, in their official capacities, with prejudice.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that I electronically filed a copy of the foregoing with the

Clerk of the Court by using the CM/ECF system, which will forward a true and correct copy

of the foregoing to: Katherine Earle Yanes, Esquire, KYNES, MARKMAN & FELMAN,

P.A., Post Office Box 3396, Tampa, Florida 33601-3396, this 15th day of April, 2010.

PURDY, JOLLY, GIUFFREDA & BARRANCO, P.A.

Attorneys for Defendants

2455 East Sunrise Boulevard, Suite 1216

Fort Lauderdale, Florida 33304

Telephone (954) 462-3200

Telecopier (954) 462-3861

E-Mail:

jason@purdylaw.com

By: s/a: Jason L. Scarberry JASON L. SCARBERRY Florida Bar No.: 0693375

1The proper Defendant is “Brad Steube, as Sheriff of Manatee County.” Page 3 of 3

 
 Case 8:09-cv-01891-EAK-TBM Document 25 Filed 05/12/10 Page 1 of 12 PageID 133

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION

MICHAEL LINDSEY GAMBUZZA, etc., et al.,

CASE NO. 8:09-cv-1891-T-17TBM

Plaintiff,

v.

JAMES HIGGINBOTHAM, etc., et al.,

Defendants. ___________________________________/

DEFENDANTS’ MOTION FOR DISQUALIFICATION FOR BIAS OR PREJUDICE (And Memorandum of Law)
The Defendants MAJOR JAMES HIGGINBOTHAM, LT. PARMENTER, CAPTAIN ACKLES, and SHERIFF BRAD STEUBE, solely in their official capacity, by and through their undersigned attorneys, pursuant to 28 U.S.C. §455, file this their Motion for Disqualification for Bias or Prejudice, and as grounds therefore would state as follows: 1. On or about September 4, 2009, the Plaintiffs, MICHAEL LINDSAY GAMBUZZA and CHRISTOPHER DRESCHER, who were proceeding pro se, filed their §1983 Civil Rights Complaint alleging violations of their rights secured by the United States Constitution. [D.E. #1]. Specifically, they alleged that the “Postcard Only” incoming mail policy at the Manatee County Jail violates their First Amendment rights.

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2. Although the case at bar was filed on September 4, 2009, the history of this case starts on June 29, 2009 when the Plaintiffs MICHAEL LINDSAY GAMBUZZA and CHRISTOPHER DRESCHER filed a §1983 Civil Rights Lawsuit on behalf of themselves and “All Others Similarly Situtated.” In Michael Gambuzza, et. al. v. Lt. Diane Parmenter, et. al., case no.: 8:09-cv-01229-EAK-TBM, the Plaintiffs’ initial complaint alleged various violations of their constitutional rights by numerous members of the Manatee County Sheriff’s Office. See Exhibit “A”, Complaint. 3. On July 8, 2009, the Honorable Judge Elizabeth A. Kovachevich, entered an order sua sponte dismissing the case directing the Plaintiffs to clearly identify the defendants and the factual allegations that support their claims against each of the defendants. See Exhibit “B”, Order dated July 8, 2009. 4. On July 24, 2009, GAMBUZZA and DRESCHER filed their Amended Complaint, on behalf of themselves and “all others similarly situated”, alleging two claims; first, that the newly implemented “Postcard Only” policy at the Manatee County Jail violated their First Amendment rights; and, second, that the Jail’s practice of removing certain articles, advertisements, and classifieds from the daily newspaper violated their constitutional rights. See Exhibit “C”, Amended Complaint. 5. On July 28, 2009, Sheila McNeill, who identified herself as calling from the United States District Court for the Middle District of Florida-Tampa Division, left a message for Michele Hall, General Counsel for Manatee County Sheriff Brad Steube, inquiring about
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case law supporting the Manatee County Jail’s “Postcard Only” policy. See Exhibit “D”, Copy of Phone Message dated July 28, 2009. 6. On July 31, 2009, Judge Kovachevich entered an order dismissing the Plaintiffs’ Amended Complaint because the Plaintiffs sought to bring claims on behalf of “all others similarly situated” and they were not represented by counsel. See Exhibit “E”, Order dated July 31, 2009. 7. When Michele Hall returned Ms. McNeill’s phone call, she identified herself as a staff attorney for the Honorable Elizabeth Kovachevich and asked Ms. Hall to provide her with all authority supporting the new mail policy. See Exhibit “F”, Affidavit of Michele Hall, ¶¶4-5.1 Ms. Hall stated she was unaware of a lawsuit filed challenging the constitutionality of the “Postcard Only” policy. Id at ¶5. Ms. McNeill told Ms. Hall that if she had authority supporting the policy, then “we can take care of this right now.” Id. Ms. McNeill also stated “more than once” that the conversation was “just between [Ms. McNeill and Ms. Hall].” Id. 8. Approximately a week later, Ms. Hall provided Ms. McNeill with legal precedent from the Arizona District Court holding that the “Postcard Only” policy of the Maricopa County Jail did not violate the First Amendment rights of inmates. When Ms. McNeill called Ms. Hall back, she was not persuaded by the authority provided by Ms. Hall and
1As the factual assertions contained in the Affidavit of Michele Hall are sufficient to support “that the judge before whom the matter is pending has a personal bias or prejudice ... against [the defendants]”, this Motion should be referred to another judge. See 28 U.S.C. §144 (2010).
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stated that Ms. Hall was going to have a problem.2 Ms. McNeill stated that she had a Ph.D., that she was an expert on inmate rights and that the Eleventh Circuit was “nothing like the Ninth Circuit.” See Exhibit “F”, ¶¶6-9. 9. On August 21, 2009, MICHAEL GAMBUZZA, proceeding pro se, filed another §1983 Civil Rights Complaint based on alleged excessive and arbitrary use of strip searches and body cavity searches at the Manatee County Jail (Case no.: 8:09-cv-1717 ). 10. On September 4, 2009, MICHAEL LINDSAY GAMBUZZA and CHRISTOPHER DRESCHER, who were proceeding pro se, filed a §1983 Civil Rights Complaint alleging the “Postcard Only” incoming mail policy at the Manatee County Jail violated their First Amendment rights. [D.E. #1]. 11. On September 10, 2009, Sonya Rietz, assistant to General Counsel Michele Hall, emailed Sheila McNeill3 the Manatee County Sheriff’s Office “Inmate Handout.” See Exhibit “G”, Email correspondence dated September 10, 2009.
2During the call, Ms. McNeill also stated that Mr. Gambuzza had filed a lawsuit regarding illegal strip searches and cavity searches, she had called and spoken to several employees at the jail and “it doesn’t look good”, and the Manatee County Sheriff’s Office was “going to have a problem.” See Exhibit “F”, ¶8.
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12. On October 26, 2009, Katherine Yanes4,Esquire; James E. Felman, Esquire; and Kynes, Markman & Felman, P.A. filed their “Motion to Be Appointed as Pro Bono Counsel”5, which was granted by the Court two (2) days later. That motion states “[u]ndersigned counsel was contacted by the Court and requested to accept appointment as counsel on behalf of the Plaintiffs in this case.6 13. Staff Attorney Sheila McNeill’s ex parte communications with the Manatee County Sheriff’s Office, which constituted an independent investigation of a lawsuit and prejudgment of the constitutionality of the Defendants’ policies, coupled with the referral of the case to a former coworker, who is now Plaintiffs’ counsel, demonstrate that the Honorable Judge Elizabeth Kovachevich’s impartiality might reasonably be questioned. Therefore, it is proper that the Honorable Judge Elizabeth A. Kovachevich be disqualified from presiding over the case at bar.
WHEREFORE, the Defendants MAJOR JAMES HIGGINBOTHAM, LT. PARMENTER, CAPTAIN ACKLES, SHERIFF BRAD STEUBE, solely in their official
4According to her attorney profile on her law firm’s website, located at http://www.kmf-law.com/, Ms. Yanes clerked for the Honorable Judge Kovachevich after her graduation from law school in 1997 and worked with Ms. McNeill who apparently has been staff counsel to the Court for many years. According to Ms. Yanes, she knows Sheila McNeill well. See Exhibit “H”, Michele Hall’s handwritten notes from telephone conversation with Katherine Yanes.
5 Plaintiff’s counsel also filed a similar motion in case no.: 8:09-cv-1717. 6It is unclear who contacted Kynes, Markman & Felman about representing the Plaintiffs in this case; However, based on Ms. McNeill’s personal beliefs regarding the constitutionality of the Defendants’ policies and Ms. Yanes’s prior employment, the Defendants reasonably believe Ms. McNeill contacted Ms. Yanes.
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capacity, respectfully request this Honorable Court enter an order disqualifying the Honorable Judge Elizabeth Kovachevich for bias.
Further, and in support of this motion, the Defendants would refer the Court to the Memorandum of Law attached hereto and by reference made a part hereof.
MEMORANDUM OF LAW The governing statute is 29 U.S.C. §455, which reads, in pertinent part: (a) Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned. (b) He shall also disqualify himself in the following circumstances: (1) Where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding. See 28 U.S.C. §455 (2010). Based on the actions of Sheila McNeill and the sua sponte request for counsel to represent the Plaintiffs, the Honorable Judge Kovachevich’s impartiality might reasonably be questioned. The goal of section 455 is to avoid even the appearance of partiality. “Inherent in §455(a)’s requirement that a judge disqualify himself if his impartiality might reasonably be questioned is the principle that our system of ‘justice must satisfy the appearance of justice.’” See Parker v. Connors Steel Co., 855 F.2d 1510, 1523 (11th Cir. 1988)(quoting Offutt v. United States, 348 U.S. 11, 14, 75 S.Ct. 11 (1954)). “The very purpose of §455(a) is to promote confidence in the judiciary by avoiding even the appearance of impropriety whenever possible. See Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847, 865
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, 108 S.Ct. 2194, 2205 (1987)(citing H.R.Rep. No. 93-1453, at 5). “Thus, it is critically important ... to identify the facts that might reasonably cause an objective observer to questions [the judge’s] impartiality.” Id.
In the current case, those facts consist of the actions of Sheila McNeill, staff attorney to the Honorable Elizabeth A. Kovachevich. Ms. McNeill undertook a factual investigation and determined that the Sheriff’s “Postcard Only” policy was unconstitutional despite the existence of case law on the subject. This investigation included contacting employees of the Sheriff at the jail and General Counsel to the Sheriff, Michele Hall. Ms. McNeill also apparently made a sua sponte request for counsel to represent the Plaintiff. Ms. McNeill, after learning of the Manatee County Jail’s “Postcard Only” mail policy and while case no.: 8:09-cv-01229-EAK-TBM was pending before the Court, contacted Sheriff Brad Steube’s General Counsel, who was unaware of the pending litigation, to seek out legal authority supporting the policy. By the time Ms. Hall returned the phone, case no.: 8:09-cv-01229EAK-TBM had been dismissed by Judge Kovachevich including the Plaintiffs’ claims regarding the “Postcard Only” policy. However, Ms. McNeill requested the legal authority Ms. Hall relied on in implementing the new policy. As if this investigation wasn’t enough, Ms. McNeill called Ms. Hall to provide her with her opinions regarding the policies at the Manatee County Jail. In not so many words, she stated that this was not “the Ninth Circuit”7 and the Manatee County Jail mail policy would not pass constitutional muster in the
7According to Michele Hall, Ms. McNeill stated that “that the Eleventh Circuit was nothing like the Ninth Circuit.” See Exhibit “F”, ¶7.
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Eleventh Circuit. Further causing the Defendants to be concerned about the impartiality of the Court, when the Plaintiffs re-filed their lawsuit regarding the “Postcard Only” policy, the Court, sua sponte, contacted a law firm requesting that they file a motion to be appointed as pro bono counsel for the Plaintiffs.8 These facts and circumstances might reasonably cause an objective observer to question Judge Kovachevich’s impartiality.
Although the Defendants are unaware of any actions taken by Judge Kovachevich in this matter, it is impossible for the Defendants to know whether Sheila McNeill was acting independently, or under direction from Judge Kovachevich. Further, the Fifth Circuit Court of Appeals has noted that law clerks can play a significant role in deciding cases:
Law clerks are not merely the judge’s errand runners. They are sounding boards for tentative opinions and legal researchers who seek the authorities that affect decision. Clerks are privy to the judge’s thoughts in a way that neither parties to the lawsuit nor [her] most intimate family members may be. We agree with the Sixth Circuit that the clerk is forbidden to do all that is prohibited to the judge. It is the duty of the law clerk as much as that of the trial judge to avoid any contacts outside the record that might affect the outcome of the litigation.” See Hall v. Small Business Administration, 695 F.2d 175, 179 (5th Cir. 1983) Further, Ms. McNeill’s contact with Michele Hall and employees of the Manatee County Jail are prohibited actions under the Judicial Code of Conduct, which apply to law clerks and other personnel as well.
8In addition, the attorney who the Court contacted is a former law clerk for Judge Kovachevich and presumably a former coworker of Ms. McNeill, who has already prejudged this policy as unconstitutional. The record also reflects that the Plaintiffs did not seek appointment of counsel in this matter.
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The law clerk learned of the litigation and of the disputed issues by virtue of his employment as law clerk to the trial judge. It was his duty as much as that of the trial judge to avoid any contacts outside the record that might affect the outcome of the litigation. This we perceive to be the basis, so far as related to the judge himself, of the existing Canon 3(A)(4) of the Code of Judicial Conduct for the United States Judges which provides: ‘A judge should ... neither initiate nor consider ex parte or other communications concerning a pending or impending proceeding.’9 See Kennedy v. Great Atlantic & Pacific Tea Co., Inc., 551 F.2d 593, 596 (5th Cir. 1977).
To the extent Judge Kovachevich was unaware of Ms. McNeill’s actions in this
matter, the Supreme Court in Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847,
108 S.Ct. 2194 (1988), held that scienter is not required in order to find a violation of
§455(a). The Supreme Court stated:
The judge’s lack of knowledge of a disqualifying circumstance may bear on the question of remedy, but it does not eliminate the risk that [her] impartiality might reasonably be questioned by other persons. Moreover, advancement of the purpose of the provision-to promote public confidence in the integrity of the judicial process, does not depend upon whether or not the judge actually knew of facts creating an appearance of impropriety, so long as the public might reasonably believe that he or she knew.
Id at 2002-03 (internal citations and quotations omitted).
9The restriction on ex parte communications concerning a proceeding includes communications from lawyers, law teachers, and others who are not participants in the proceeding. A judge may consult with other judges or with court personnel whose function is to aid the judge in carrying out adjudicative responsibilities. A judge should make reasonable efforts to ensure that law clerks and other court personnel comply with this provision. See Code of Conduct for United States Judges, Canon 3(A)(4), effective July 1, 2009.
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CONCLUSION “[S]ection 455(a) embodies an objective standard. The test is whether an objective, disinterested, lay observer fully informed of the facts underlying the grounds on which recusal was sought would entertain a significant doubt about the judge’s impartiality.” See Parker v. Connors Steel Co., 855 F.2d 1510, 1524 (11th Cir. 1988). In this case, the “appearance of partiality” is apparent to a reasonable person. Ms. McNeill, a self described long-time member of the presiding judge’s staff evaluated a pro se prisoner complaint and conducted an independent investigation going so far as to call employees of the defendant Sheriff and interviewed them regarding issues in this case. Ms. McNeill, who described herself as an expert in prisoner’s rights, discussed the case with General Counsel for the Manatee County Sheriff and advised her that the Sheriff’s Office was going to have a problem. When counsel provided her with legal authority in support of the policy10, Ms. McNeill commented that the policy isn’t going to fly in the Eleventh Circuit because it is “nothing like the Ninth Circuit.” Further, it is reasonable to conclude Ms. McNeill was instrumental in the decision to contact a former law clerk and co-worker, who is now Plaintiffs’ counsel, requesting that she file a motion to be appointed pro bono counsel, which potentially exposes the Defendants to an award for attorneys’ fees. Potentially, Ms.
10The only opinion available at the time on this legal issue holding an identical policy to be constitutional. See Gibbons v. Arpaio, 2008 WL 4447003 (D.Ariz. 2008). On September 24, 2009, the United States District Court in Arizona held, for a second time, held that the “Postcard Only” policy at the Maricopa County Jail was constitutional. See Covell v. Arpaio, 662 F.Supp.2d 1146 (D.Ariz. 2009).
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Case 8:09-cv-01891-EAK-TBM Document 25 Filed 05/12/10 Page 11 of 12 PageID 143 Yanes would be entitled to an award of attorney’s fees, pursuant to 42 U.S.C. §1988, despite her “pro bono” status should the Plaintiffs prevail. All of these factors cause the Defendants, and would cause a casual observer, to reasonably question the partiality of the Court. This motion should be granted. Local Rule 3.01(g) Statement Undersigned counsel has contacted opposing counsel who has indicated that they are opposed to the relief sought in this Motion.
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CERIFICATE OF SERVICE I HEREBY CERTIFY that I electronically filed a copy of the foregoing with the Clerk of the Court by using the CM/ECF system, which will forward a true and correct copy of the foregoing to: Katherine Earle Yanes, Esquire, KYNES, MARKMAN & FELMAN, P.A., Post Office Box 3396, Tampa, Florida 33601-3396, this 12th day of May, 2010.

PURDY, JOLLY, GIUFFREDA & BARRANCO, P.A.

Attorneys for Defendants

2455 East Sunrise Boulevard, Suite 1216

Fort Lauderdale, Florida 33304

Telephone (954) 462-3200

Telecopier (954) 462-3861

E-Mail:

jason@purdylaw.com

By: s: Jason L. Scarberry JASON L. SCARBERRY Florida Bar No.: 0693375

By: s: Richard A. Giuffreda RICHARD A. GIUFFREDA Florida Bar No.: 705233

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UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION

MICHAEL LINDSEY GAMBUZZA, CHRISTOPHER SCOTT DRESCHER, BARBARA SCHNURR and DEBORAH SORENSEN, on behalf of themselves and all others similarly situated,

Plaintiffs,

v.

Case No. 8:09-cv-1891-T-17TBM

LIEUTENANT DIANE PARMENTER, CAPTAIN ANTHONY ACKLES, MAJOR JAMES HIGGINBOTHAM and SHERIFF BRAD STEUBE, in their official capacities,
Defendants.

O R D E R This cause is before the Court sua sponte.
Background The present case is a 42 U.S.C. § 1983 prisoner civil rights case. However, the main issue in the present case first came before the Court on June 29, 2009 in Case No.

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8:09-cv-1229-T-17TBM in which Michael L. Gambuzza and Christopher Drescher alleged, for themselves, and for all others similarly situated, that the new mail policy at Manatee County Jail (MCJ) which allowed inmates to receive only post-cards from family and friends was unconstitutional.1 (See Case No. 8:09-cv-1229-T-17TBM, Exhibit 1, page 8). In Case No. 8:09-cv-1229, Plaintiffs also alleged that personnel at MCJ were opening privileged or legal mail; that jail personnel were allowing trainees to search legal bins and legal mail without the owner being present; and were allowing trainees to conduct training exercises on inmates, including cavity searches. Plaintiffs alleged other violations of their constitutional rights in Case No. 8:09-cv-1229.
However, after screening the complaint, on July 8, 2009, the case was dismissed, without prejudice to the Plaintiffs’ filing an amended complaint on or before July 31, 2009. The dismissal was based on Plaintiffs’ raising claims on several different unrelated issues or incidents in the same complaint. Plaintiffs filed their amended complaint on July 24, 2009, raising only the post-card mail issue.
The Court dismissed the amended complaint, without prejudice, stating that Plaintiffs were purporting to bring a class action for themselves and all others similarly situated. The Court cited Wallace v. Smith, 145 Fed. Appx. 300 (11th Cir. 2005)(quoting Oxendine v. Williams 509 F.2d 1405, 1407 (4th Cir. 1975) and Massimo v. Henderson, 468 F.2d 1209, 1210 (5th Cir. 1972)) in support of the dismissal.
On August 21, 2009, in Case No. 8:09-cv-1717-T-17MAP, Plaintiff Michael Lindsey Gambuzza filed a pro se 42 U.S.C. § 1983 complaint alleging that Defendants were
1 Plaintiffs sought to proceed in forma pauperis in this case. -2-

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violating his constitutional rights by allowing trainees to perform training exercises on Gambuzza and on other prisoners. The Court granted Plaintiff’s motion to proceed in forma pauperis to the extent that he was not required to prepay the entire $350.00 filing fee. On October 26, 2009, the Court appointed pro bono counsel to represent Gambuzza in this action. On February 17, 2010, counsel filed a motion to voluntarily dismiss the complaint, which the Court granted on February 19, 2010.
On September 4, 2009, in the present case, Case No. 8:09-cv-1891-T-17TBM, Plaintiffs Michael Lindsey Gambuzza and Christopher Scott Drescher filed a pro se 42 U.S.C. § 1983 complaint alleging violation of their constitutional rights when Defendants opened legal mail and implemented the new mail policy allowing only post-card mail to be received. They also claimed that the Defendants censored the newspaper so that inmates at MCJ were not allowed to read all of the newspaper.
On October 26, 2009, the Court appointed pro bono counsel to represent Plaintiffs. On February 18, 2010, counsel filed an amended 42 U.S.C. § 1983 complaint on behalf of Michael Lindsey Gambuzza, Christopher Scott Drescher, Barbara Schnurr and Deborah Sorensen, and all others similarly situated, claiming that the new mail policy of allowing inmates only to receive post-cards as incoming mail violated the First and Fourteenth Amendment rights of the “Inmate Class” and the “Family Members and Friends Class” (represented by Barbara Schnurr and Deborah Sorensen). The Complaint seeks to enjoin the Defendants from enforcing the “post-card only” mail policy.
No fees have been paid in this case. The Court, after reviewing the three cases described above, concludes that the Defendants are proceeding in forma pauperis.
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Discussion “The Supreme Court in Neitzke v. Williams, 490 U.S. 319, 109 S.Ct. 1827, 1833, 104 L.Ed.2d 338 (1989) recognized that a district court could sua sponte dismiss a case filed in forma pauperis (pursuant 28 U.S.C. § 1915(d)) if it was satisfied that the action was frivolous or malicious.2 Neitzke recognized two types of cases which may be dismissed, sua sponte. In the first class are ‘claim(s) based on an indisputably meritless legal theory,’ and in the second class are ‘those claims whose factual contentions are clearly baseless.’ Id. Within the former are those cases in which it is either readily apparent that a complaint lacks an arguable basis in law or that defendants are clearly entitled to immunity from suit.’” Quoting Riches v. Onstar Corp., 2008 WL 216407 at *2 (N.D. Fla., Jan. 23, 2008). “ ‘Lawful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system.’ ” Sandin v. Conner, 515 U.S. 472, 485, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995), (citing Jones v. North Carolina Prisoners' Union, 433 U.S. 119, 125, 97 S.Ct. 2532, 53 L.Ed.2d 629 (1977) and quoting Price v. Johnston, 334 U.S. 266, 285, 68 S.Ct. 1049, 92 L.Ed. 1356 (1948)); see also Shaw v. Murphy, 532 U.S. 223, 229, 121 S.Ct. 1475, 149 L.Ed.2d 420 (2001) (“the constitutional rights that prisoners possess are more limited in score than the constitutional rights held by individuals in society at large.”) However, “prison walls do not form a barrier separating prison inmates from the protections of the Constitution,” Turner v. Safley, 482 U.S. 78, 84, 107 S.Ct. 2254, 96
2 28 U.S.C. § 1915(d) was redesignated § 1915(e) by the Prison Litigation Reform Act.
-4-

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L.Ed.2d 64 (1987), “nor do they bar free citizens from exercising their own constitutional rights by reaching out to those on the ‘inside.’ ” Thornburgh v. Abbott, 490 U.S. 401, 407, 109 S.Ct. 1874, 104 L.Ed.2d 459 (1989). Nevertheless, these rights must be weighed with “due regard for the ‘inordinately difficult undertaking’ that is modern prison administration.” Id. at 407, 109 S.Ct. 1874 (quoting Turner, 482 U.S. at 85, 107 S.Ct. 2254). Prison officials must weigh the need for internal order and security against the rights of prisoners and those on the outside who seek to communicate with such prisoners. Id.
Generally, prisoners have “a First Amendment right to send and receive mail.” Witherow v. Paff, 52 F.3d 264, 265 (9th Cir.1995) (per curium). However there must be a “delicate balance” between prisoners' First Amendment rights and the discretion given to prison administrators to govern the order and security of the prison. Thornburgh, 490 U.S. at 407-08, 109 S.Ct. 1874. Prison officials have more leeway to regulate incoming than outgoing mail because of the greater security risks inherent in materials coming into a prison. Id. at 413, 109 S.Ct. 1874. Turner is applicable to regulations and policies regarding all incoming mail; therefore, regulations and policies involving incoming mail are “valid if [they] are reasonably related to legitimate penological interests.” Turner, 482 U.S. at 89, 107 S.Ct. 2254.
A review of the case law on the issue of post-card only inmate mail, including a case in the United States District Court for the Middle District of Florida, Tampa Division, convinces the Court that the present Complaint lacks an arguable basis in law because the Courts have found that the post-card only mail policy is “reasonably related to legitimate penological interests.” Thornburgh v. Abbot, 490 U.S. 401, 413 (1989)(citing Turner v. Safley, 482 U.S. 78, 89 (1987)). See United States Middle District of Florida Case Ditullio
-5-

Case 8:09-cv-01891-EAK-TBM Document 28 Filed 05/28/10 Page 6 of 6 PageID 235 v. White, Case No. 8:10-cv-294 T-26AEP (Jan. 28. 2010); Covell v. Arpaio, 662 F. Supp 2d 1146 (D. Ariz, 2009); Gieck v. Arpaio, 2008 WL 2604919 at *5 (D. Ariz., June 23, 2008); Gibbons v. Arpaio, 2008 WL 4447003 at *6 (D. Ariz., Oct. 2, 2008).
Accordingly, the Court orders: That this case is dismissed. The Clerk is directed to close the case. ORDERED at Tampa, Florida, on May 28, 2010.
Counsel of Record

 
 Case 8:09-cv-01891-EAK-TBM Document 31 Filed 06/23/10 Page 1 of 5 PageID 242

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION

MICHAEL LINDSEY GAMBUZZA, CHRISTOPHER SCOTT DRESCHER, BARBARA SCHNURR, and DEBORAH SORENSEN, on behalf of themselves and all others similarly situated,

Plaintiffs,

Case No. 8:09-cv-01891-EAK-TBM

v.

LIEUTENANT DIANE PARMENTER, CAPTAIN ANTHONY ACKLES, MAJOR JAMES HIGGINBOTHAM, and SHERIFF BRAD STEUBE, in their official capacities,

Defendants. /

PLAINTIFFS’ MOTION FOR RECONSIDERATION AND RECUSAL Plaintiffs, by their undersigned counsel, pursuant to Rule 59 (e), Fed.R.Civ.P., move this Court for reconsideration of its sua sponte Order of Dismissal dated May 28, 2010 (DE 28) for failure to first rule on the pending Motion to Recuse (DE 25) as required by 28 U.S.C. § 144, to vacate the Order of Dismissal dated May 28, 2010, to recuse because substantive judicial action was taken before the pending motion was ruled upon, and to direct the Clerk of the Court to transfer this matter to another Judge. The grounds are as follows: 1. This Court’s order of dismissal was entered while there was a pending motion for recusal filed by the Defendants, based on alleged bias. 2. The Defendants’ motion (DE 25) was facially sufficient to require recusal if it was timely made. The court did not find it untimely.

{07025397;1}

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3. Under 28 U.S.C. § 144, the Court was precluded from making any substantive ruling while there was a pending motion for recusal and recusal was mandatory if the motion was facially sufficient and timely.
4. Having proceeded to rule on the merits of the case despite the pendency of the motion for recusal, the Court cannot now un-ring that bell and must therefore recuse itself from this case.
5. Even apart from the Court’s lack of power to enter its dismissal order before ruling on the recusal motion, that order is wrong as a matter of law.
6. The Court dismissed this case sua sponte without receiving any explanation from Defendants as to why their “postcard only” rule carries out a “legitimate penological interest,” as required by the standard in Turner v. Safely, 482 U.S. 78 (1987). More importantly, the Court ruled on this question of fact without allowing Plaintiffs the opportunity to present evidence that this rule does not do so, especially when it is evaluated in the context of other rules limiting prisoners’ communications with the outside world, rather than as a single rule in a vacuum, as the Court did.
7. For example, the Florida Model Jail Standards, recently adopted (January 1, 2010) pursuant to Fla.Stat. § 951.061 for county and municipal detention facilities specifically provide that “[g]eneral correspondence such as between the inmate, the family and other persons should be encouraged.” The rule promulgated by Defendants is directly contrary to that standard. It sharply limits correspondence, and wholly precludes communications such as family photographs, a child’s drawing, or a child’s report card. As such, the rule runs directly counter to the prophylactic rehabilitation purpose of detention.
{07025397;1}-2-

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8. Plaintiffs represent that they have retained a correctional expert who will testify on the factors required to be considered in determining whether this rule is constitutional and properly limits Plaintiffs’ First Amendment rights, including the existence of less severe alternatives that accommodate their rights at a de minimus cost to any valid penological interests.
9. Without giving Plaintiffs any opportunity to prove that the rule is unconstitutional, at least as applied here, this Court relied on an order of Judge Lazarra dismissing a pro se complaint. Thus, a decision in a case brought by a prisoner proceeding without the benefit of legal counsel now serves as the basis for dismissing this case at its outset and precluding these Plaintiffs from coming forward with evidence to support their claims. They have been wrongfully deprived of the opportunity to prove their case.
10. Certificate of Counsel. Pursuant to Local Rule 3.01(g), M.D. Fla., Plaintiffs’ counsel has conferred with opposing counsel in an attempt to resolve this matter, and have been unable to do so.
WHEREFORE Plaintiffs request that this Court reconsider its sua sponte dismissal order (DE 28), vacate its order that was entered while a motion to recuse as pending, enter an order of recusal from any further proceedings, and direct the Clerk to transfer this matter to another judge.
s/Randall C. Berg, Jr. Randall C. Berg, Jr. Florida Bar No. 318371 Joshua A. Glickman Florida Bar No. 43994 Shawn A. Heller Florida Bar No. 46346 Florida Justice Institute, Inc. 3750 Miami Tower 100 SE Second Street
{07025397;1}-3-

Case 8:09-cv-01891-EAK-TBM Document 31 Filed 06/23/10 Page 4 of 5 PageID 245
Miami, FL 33131-2309 Telephone: (888) 358-2081 toll free x 225 Facsimile: (305) 358-0910 Email: rberg@floridajusticeinstitute.org
Sylvia H. Walbolt Florida Bar No.33604 Carlton Fields, P.A. 4221 W. Boy Scout Boulevard Suite 1000 Tampa, FL 33607 Telephone: (813) 223-7000 Facsimile: (813) 229-4133 Email: swalbolt@carltonfields.com Attorneys for the Plaintiffs CERTIFICATE OF SERVICE I HEREBY CERTIFY that on June 23, 2010, I electronically filed the foregoing document with the Clerk of the Court using CM/ECF. I also certify that the foregoing document is being served this day on all counsel of record or pro se parties identified on the attached Service List in the manner specified, either via transmission of Notices of Electronic Filing generated by CM/ECF or in some other authorized manner for those counsel or parties who are not authorized to receive electronically Notices of Electronic Filing.
s/Randall C. Berg, Jr. Randall C. Berg, Jr.
{07025397;1}-4-

Case 8:09-cv-01891-EAK-TBM Document 31 Filed 06/23/10 Page 5 of 5 PageID 246 SERVICE LIST
Case No. 8:09-cv-01891 Middle District of Florida, Tampa Division by CM/ECF: Counsel for the Defendants Jason L. Scarberry, Esq. Richard Giuffreda, Esq. Purdy, Jolly, Giuffreda & Barranco, P.A. 2455 E. Sunrise Blvd., Suite 1216 Ft. Lauderdale, FL 33304 jason@purdylaw.com richard@purdylaw.com
{07025397;1}-5-

 
 Case 8:09-cv-01891-EAK-TBM Document 37 Filed 03/11/11 Page 1 of 4 PageID 264
UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION

MICHAEL LINDSEY GAMBUZZA, CHRISTOPHER SCOTT DRESCHER, BARBARA SCHNURR and DEBORAH SORENSEN, on behalf of themselves and all others similarly situated,

Plaintiffs,

v.

Case No. 8:09-cv-1891-T-17TBM

LIEUTENANT DIANE PARMENTER, CAPTAIN ANTHONY ACKLES, MAJOR JAMES HIGGINBOTHAM and SHERIFF BRAD STEUBE, in their official capacities,
Defendants.

O R D E R This cause is before the Court sua sponte. The question before the Court is whether this case is now moot.
Discussion Plaintiffs proceeded on their amended complaint (hereinafter "complaint"). (Doc. 10). Although Plaintiffs sought class certification, the class was never certified. At the time the

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complaint was filed, Plaintiffs Gambuzza, Drescher, and Johnson were incarcerated in the Manatee County Jail. The additional Plaintiffs are relatives of Drescher and Johnson.
Now, Plaintiff Gambuzza's address is 701 17th Avenue W., Bradenton, Florida 34205 (See case number 8:09-cv-449-23TGW). Plaintiff Christopher Drescher is incarcerated in the Department of Corrections. Plaintiff Michael Johnson's address is unknown.
Mootness “If a suit is moot, it cannot present an Article III case or controversy and the federal courts lack subject matter jurisdiction to entertain it.” Seay Outdoor Advertising, Inc. v. City of Mary Esther, Fla., 397 F.3d 943, 946 (11th Cir.2005) (citations omitted). A case is moot when the issue presented is no longer live, the parties lack a legally cognizable interest in its outcome, or a court decision could no longer provide meaningful relief to a party. Troiano v. Supervisor of Elections in Palm Beach County, 382 F.3d 1276, 1281 (11th Cir.2004). Whether a case is moot is a question of law, Troiano, 382 F.3d at 1282. The Court of Appeals may not entertain an appeal unless there is a present "case or controversy," i.e., an actual dispute that continues to exist between parties. Smith v. Allen, 502 F.3d 1255, 1267 (11th Cir. 2007). The general rule in the Eleventh Circuit is that a transfer or a release of a prisoner from prison will moot that prisoner's claims for injunctive and declaratory relief. Id. "The reason for this rule is that injunctive relief is 'a prospective remedy, intended to prevent future injuries,' Adler,1 112 F.3d at 1477, and, as a result, once the prisoner has been released, the court lacks the ability to grant injunctive
1 Adler v. Duval County Sch. Bd., 112 F.3d 1475, 1477 (11th Cir. 1997). -2-

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relief and correct the conditions of which the prisoner complained." Smith, 502 F.3d at 1267. See, e.g., Wahl v. McIver, 773 F.2d 1169, 1173 (11th Cir.1985) ( per curiam) (stating that a prisoner's past exposure to sub-par conditions in a prison “does not constitute a present case or controversy involving injunctive relief”).
Plaintiffs sought declaratory and injunctive relief in their complaint. Plaintiffs did not seek punitive or compensatory damages. They did not seek nominal damages.2 See Mobley v. Johnson, at 2007 WL 2608664 at *2 (N.D. Fla. Sept, 5, 2007)(citing Hughes v. Lott, 350 F.3d 1157, 1162 (11th Cir. 2003)).
Any argument that Plaintiffs' claims for injunctive relief are not moot because they may be future inmates in the Manatee County Jail is without merit. The Supreme Court, the Eleventh Circuit, and this District have rejected such claims. Spencer v. Kemma, 523 U.S. 1, 15 (1998); McKinnon v. Talladega County, Ala., 745 F.2d 1360, 1363 (citing Dudley v. Stewart, 724 F.2d 1493, 1494 (11th Cir.1984)); Romano v. Rambosk, Case No. 2:06-cv-375-FtM-29DNF, 2010 WL 2732005 (M.D. Fla. July 9, 2010).
Pursuant to the above, the Court orders: 1. That on or before March 25, 2011, the parties shall file memoranda of law as to whether this case is moot. 2. That ruling on Plaintiffs' motion for reconsideration (Doc. 31) is deferred, pending a decision on whether the case is moot. The Clerk is directed to temporarily remove the
2 Plaintiffs sought costs and attorneys' fees arising out of this litigation pursuant to 42 U.S.C. Section 1988, and any other applicable law, and such other and further relief as the Court may deem just and equitable. Plaintiffs were represented by counsel and could have specifically sought nominal damages.
-3-

Case 8:09-cv-01891-EAK-TBM Document 37 Filed 03/11/11 Page 4 of 4 PageID 267 motion from the docket and to return it to the docket after the Court makes its determination on mootness.
3. That Counsel's motion to withdraw (Doc. 35) is granted. ORDERED at Tampa, Florida, on March 11, 2011.
Counsel of Record

 
 Case 8:09-cv-01891-EAK-TBM Document 38 Filed 03/25/11 Page 1 of 12 PageID 268

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION

MICHAEL LINDSEY GAMBUZZA, CHRISTOPHER SCOTT DRESCHER, BARBARA SCHNURR, and DEBORAH SORENSEN, on behalf of themselves and all others similarly situated,

Plaintiffs,

Case No. 8:09-cv-01891-EAK-TBM

v.

LIEUTENANT DIANE PARMENTER, CAPTAIN ANTHONY ACKLES, MAJOR JAMES HIGGINBOTHAM, and SHERIFF BRAD STEUBE, in their official capacities,

Defendants. /

PLAINTIFFS’ MEMORANDUM OF LAW IN RESPONSE TO THE COURT’S ORDER OF MARCH 11, 2011, REGARDING MOOTNESS Plaintiffs, by their undersigned counsel, hereby respond to this Court’s Order (D.E. 37) directing the parties to file memoranda of law regarding whether this case is moot. As set forth more fully below, (1) Plaintiffs bring their claims for injunctive and declaratory relief on behalf of a similarly situated class of persons, (2) Defendants’ unconstitutional “postcard-only” mail policy is capable of repetition yet evading review, and (3) Plaintiffs seek injunctive relief for acts that were authorized or part of a policy. Accordingly, Plaintiffs have standing to seek the injunctive and declaratory relief on behalf of the proposed class sought herein, and this case is not moot.

Case 8:09-cv-01891-EAK-TBM Document 38 Filed 03/25/11 Page 2 of 12 PageID 269
However, at the outset, Plaintiffs note that Defendants’ Motion for Disqualification for Bias or Prejudice (D.E. 25) remains pending before this Court. As more fully discussed in Plaintiffs’ Motion for Reconsideration and Recusal (D.E. 31), pursuant to 28 U.S.C. § 1441, this Court is precluded from making any substantive rulings pertaining to this matter, including any determinations regarding whether this case is moot, while Defendants’ Motion for Disqualification is pending.2
BACKGROUND Plaintiffs, Michael Lindsey Gambuzza, Christopher Scott Drescher, Barbara Schnurr, and Deborah Sorensen, on behalf of themselves and all others similarly situated, bring the present class action lawsuit pursuant to 42 U.S.C. § 1983 and F.R.C.P. 23(b)(2). Complaint at ¶¶ 1, 50 (D.E. 10). Plaintiffs Gambuzza and Drescher, inmates at the Manatee County Jail at the time this action was filed and when this Court last addressed the issue of class certification, seek to represent a class of Manatee County Jail Inmates, defined as the “Inmate Class.” Complaint at ¶¶ 1, 50, 52 (D.E. 10); Order Granting Motion to Set Class Certification Briefing Schedule (D.E. 24). Plaintiffs Schnurr and Sorensen, family members of inmates at the Manatee County Jail at the time this action was filed and when this Court last addressed the issue of class certification, seek to represent a class of family members and friends of Manatee County Jail inmates, defined as the “Family Members and Friends Class.” Complaint at ¶¶ 1, 50, 52 (D.E. 10); Order Granting Motion to Set Class Certification Briefing Schedule (D.E. 24). Plaintiffs Gambuzza and Drescher have since been released from the Manatee County Jail.
1 Pursuant to 28 U.S.C. § 144, “Whenever a party to any proceeding in a district court makes and files a timely and sufficient affidavit that the judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of any adverse party, such judge shall proceed no further therein, but another judge shall be assigned to hear such proceeding.” (emphasis provided). 2 Pursuant to Rule 10(c), Federal Rules of Civil Procedure, Plaintiffs incorporate their Motion for Reconsideration and Recusal (D.E. 31), filed June 23, 2010, as if fully set forth herein.
2

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Plaintiffs, on behalf of themselves, the Family Members and Friends Class, and the Inmate Class, seek to enjoin the Defendant officials of the Manatee County Sheriff’s Office (“Sheriff”) and Manatee County Jail from enforcing, in violation of the First and Fourteenth Amendments to the U.S. Constitution, a “post-card only” mail policy under which members of the Inmate Class are permitted to receive incoming mail from members of the Family Members and Friends Class only in the form of postcards (the “Postcard-Only Mail Policy”). Complaint at ¶¶ 2 (D.E. 10).
Every current and future inmate of the Manatee County Jail is subject to Defendants’ Postcard-Only Mail Policy that is the subject of this lawsuit. Complaint at ¶¶ 30-34 (D.E. 10). While a class certification briefing schedule was set by this Court, the matter was sua sponte dismissed, without the opportunity for the presentation of evidence and despite the pendency of a motion for disqualification, prior to the filing of Plaintiffs’ Motion for Class Certification. Order Granting Motion to Set Class Certification Briefing Schedule (D.E. 24); Order of Dismissal (D.E. 28).
ARGUMENT Article III of the Constitution “limits the jurisdiction of the federal courts to the consideration of ‘Cases’ and ‘Controversies.’” Mingkid v. U.S. Att’y Gen., 468 F.3d 763, 768 (11th Cir. 2006). An action is moot “when it no longer presents a live controversy with respect to which the court can give meaningful relief,” or if the parties, “lack a legally cognizable interest in the outcome.” Id; Powell v. McCormack, 395 U.S. 486, 496 (1969). Courts have often referred to this concept as the “personal stake” requirement. See, e.g., United States Parole Commission, et al. v. Geraghty, 445 U.S. 388, 396 (1980); Franks v. Bowman Transportation Co., 424 U.S. 747, 755 (1976).
3

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As this Court correctly points out, the general rule in the Eleventh Circuit regarding this “personal stake” requirement is that a transfer or a release of a plaintiff from prison will moot that individual plaintiff’s claim for injunctive and declaratory relief. See Smith v. Allen, 502 F.3d 1255, 1267 (11th Cir. 2007). Both the Eleventh Circuit and the Supreme Court have consistently held, however, that this general rule does not apply when the plaintiff either brings his claims for injunctive and/or declaratory relief on behalf of a similarly situated class of persons, or when the plaintiff seeks to enjoin an act that was authorized or part of a custom or policy. Sosna v. Iowa, 419 U.S. 393 (1975); 31 Foster Children v. Bush, 329 F.3d 1255, 1266 (11th Cir. 2003); Church v. City of Huntsville, 30 F.3d 1332, 1338-39 (11th Cir. 1994). Both exceptions to the general rule in our circuit are applicable to the case at bar.
The Supreme Court has addressed the “personal stake” requirement in the class-action context. In Sosna v. Iowa, the Court held that mootness of a named plaintiffs’ individual claim after a class had been certified did not render the action moot. Sosna, 419 U.S. at 400. The Court reasoned that “even though appellees … might not again enforce the Iowa durational residency requirement against [the class representative], it is clear that they will enforce it against those persons in the class that appellant sought to represent.” Id. In such a case, an Article III case or controversy may still exist “between a named defendant and a member of the class represented by the named plaintiff, even though the claim of the named plaintiff has become moot.” Id. at 402. If class certification has been denied or has yet to be decided, a named plaintiff retains standing to litigate the class certification issue, despite the status of his or her personal claim. Id. at 404; Wade v. Kirkland, 118 F.3d 667, 669 (9th Cir. 1997) (named prisoner plaintiff has standing to litigate outstanding class certification issue despite transfer from county jail and mootness of individual claims).
4

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It is indisputable that Defendant officials will continue to enforce the challenged provisions of the Postcard Only Mail Policy against the members of the Inmate Class and the Family Members and Friends Class, and that an Article III case or controversy exists between Defendants and these class members. While neither of these classes were ever formally certified by this Court, that is only because this case was sua sponte dismissed prior to the date set by the Court for the filing of Plaintiffs’ Motion for Class Certification. Plaintiffs brought this action on behalf of themselves, the Family Members and Friends Class, and the Inmate Class, put forth detailed factual class action allegations in the First Amended Complaint, and clearly retain standing to litigate the class certification issue that has been properly raised. Sosna, 419 U.S. at 404. (“We therefore hold that an action brought on behalf of a class does not become moot upon expiration of the named plaintiff’s substantive claim … [t]he proposed representative retains a ‘personal stake’ in obtaining class certification sufficient to assure that Art. III values are not undermined.”).
Moreover, the Supreme Court and the Eleventh Circuit have recognized an exception to the “personal stake” requirement in cases where a plaintiff’s claims are “capable of repetition, yet evading review.” Doe v. Kearney, 329 F.3d 1286, 1293 (11th Cir. 2003) (quoting Gerstein v. Pugh, 420 U.S. 103, 110 n. 11 (1975)). In such cases, a named plaintiff may litigate the class certification issue – and if certified, the substantive issues of the case on the class’s behalf – despite loss of his personal stake in the outcome of the litigation. Id.; Geraghty, 445 U.S. at 398. While the “capable of repetition, yet evading review” doctrine was initially developed outside the class-action context, it has been applied in the class action context to claims which “are so inherently transitory that the trial court will not have even enough time to rule on a motion for class certification before the proposed representative’s individual interest expires.” Id. at 399.
5

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Directly applicable to the case at hand, the Supreme Court has held that claims involving jail inmates fall squarely into this “capable of repetition, yet evading review” exception to the “personal stake” requirement:
Pretrial detention is by nature temporary, and it is most unlikely that any given individual could have his constitutional claim decided … before he is either released or convicted. The individual could nonetheless suffer repeated deprivations, and it is certain that other persons similarly situated will be detailed under the allegedly unconstitutional procedures. The claim, in short, is one that is distinctly ‘capable of repetition, yet evading review.’ Gerstein, 420 U.S. at 110 n. 11. In Gerstein, a group of Florida jail inmates brought a class action lawsuit challenging pre-trial detention conditions. Id. at 106-07. In determining whether the named plaintiffs’ claims were moot for the purposes of certifying the class, the Court held that the status of the named plaintiffs’ individual claims were irrelevant given the inherently transitory nature of pretrial custody and the certainty of a class of persons who would be subject to the defendant jail’s policies. Id. at 110 n. 11. (“It is by no means certain that any given individual, named as plaintiff, would be in pretrial custody long enough for a district judge to certify the class. Moreover, in this case the constant existence of a class of persons suffering the deprivation is certain.”). As in Gerstein, Plaintiffs here represent a class of Florida jail inmates who have challenged pre-trial detention conditions. As noted repeatedly by the Gerstein Court, the fact that the named Plaintiffs in the case at bar have been released from custody since bringing their constitutional claims over six months ago is unsurprising given the rapid turnover in jail populations and the temporary reality of pretrial detention. Id. To require that the named Plaintiffs here maintain a “personal stake” in the litigation throughout its entirety would ignore the plainly established exception to the general rule regarding mootness set forth by Gerstein,
6

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and would ensure that Defendants’ Postcard-Only Mail Policy would be forever insulated from judicial review.
This law establishes that Plaintiffs’ claims are not moot, because (1) they have brought injunctive and declaratory relief claims on behalf of a class of persons similarly situated and are entitled to litigate the class certification issue, and (2) their status as jail inmates at the time of filing make their claims “capable of repetition, yet evading review,” and thus an exception to the general rules regarding mootness. As such, Plaintiffs need not rely on any reasonable expectation of being again personally subjected to the unconstitutional conditions complained of in order to defeat mootness, as argued by the plaintiffs in the cases cited by this Court. See D.E. 37, citing Spencer v. Kemma, 523 U.S. 1, 15 (1998); McKinnon v. Talladega County, Ala., 745 F.2d 1360, 1363; Romano v. Rambosk, Case No. 2:06-cv-375-FtM-29DNF, 2010 WL 2732005 (M.D. Fla. July 9, 2010).
In Spencer v. Kemma, for instance, the plaintiff, who did not seek to represent a class, challenged the Order of Revocation of his parole. 523 U.S. at 5. Although the plaintiff had been released from prison at the time his petition was filed, he argued that the Order of Revocation could be used to increase his sentence in a future sentencing proceeding. Id. at 15. The Court rejected this argument, based primarily on Los Angeles v. Lyons, 461 U.S. 95 (1983), and its progeny, holding that plaintiff’s argument was contingent upon him “violating the law, getting caught, and being convicted,” which under Lyons was insufficient to confer Article III standing. Spencer, 523 U.S. at 5. Similarly, in Romano v. Rambosk, a plaintiff, proceeding alone after his release, was found not to have standing to bring claims that the Collier County Jail failed to accommodate his disability, despite his argument that he may someday be returned to the Jail. Romano v. Rambosk, 2010 WL 2732005 at *3.
7

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In Lyons, like the above cited cases, the Court held that the plaintiff did not have standing to seek injunctive relief because he failed to establish a “real and immediate” threat that he would again violate the law, get caught, and then be subjected to a chokehold by police. Lyons, 461 U.S. at 105. Because the conduct challenged by Lyons was episodic, occurring only when individual police officers decided to use a chokehold, rather than a routine procedure or policy, authorized for use at every traffic stop, Lyons’ claim that he was likely to be subjected to a chokehold at a traffic stop was too speculative to satisfy standing requirements. Id. at 108.
Unlike Lyons and the cases cited by the Court, however, where – as here – a named plaintiff seeks injunctive relief on behalf of a class of persons for acts that were authorized or part of a custom or policy, courts have often found that the case was not moot despite the fact that the named plaintiff’s individual claims had expired. See, e.g., 31 Foster Children v. Bush, 329 F.3d 1255, 1266 (11th Cir. 2003); Church v. City of Huntsville, 30 F.3d 1332, 1338-39 (11th Cir. 1994); Haney v. Miami-Dade County, Case No. 04-20516-CIV-Jordan/Brown, 2004 WL 2203481 at *7-8 (S.D. Fla. Aug. 24, 2004); Mack v. Suffolk County, 191 F.R.D. 16 (D. Mass. 2000). In these cases, “where the threatened acts that will cause injury are authorized or part of a policy, it is significantly more likely that the injury will occur again.” 31 Foster Children, 329 F.3d at 1266 (holding that foster care children had standing to seek injunctive relief challenging systemic deficiencies in the system despite lack of personal harm where challenged acts were authorized by policy or custom); City of Huntsville, 30 F.3d at 1338-39 (holding that homeless persons had standing to seek an injunction against the City of Huntsville, despite lack of current controversy, where plaintiffs challenged City’s policy regarding homelessness); Haney, 2004 WL 2203481 at *7-8 (holding that women who had been strip searched at the Miami-Dade
8

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County Jail, and subsequently released, had standing to seek injunctive relief, prior to class certification, “for acts that were authorized or part of a policy.”).
Indeed, the Court in Lyons specifically indicated that the plaintiff may have enjoyed standing to bring injunctive relief claims had he suggested that the officers’ use of the chokehold was authorized by policy or custom, instead of the random or unauthorized act of a third party. See Lyons, 461 U.S. at 106 (plaintiff may have had standing if he had alleged “that the City ordered or authorized police officers to [perform illegal chokeholds]”).
Similarly, Plaintiffs challenge a routine policy and procedure of the Defendant Sheriff that is enforced against every current, past and future person who is incarcerated at the Manatee County Jail, and affects every family member and/or friend of each individual who is incarcerated at the Manatee County Jail. Unlike the plaintiffs’ claims in Lyons, Spencer, and Romano, Plaintiffs’ claims here do not rely on speculative, random, or unauthorized third-party actions that would have to occur to be again subject to Defendants’ unconstitutional policy. Since Plaintiffs have challenged Defendants’ policy and practice of censoring all mail that does conform to the Postcard-Only Mail Policy, “there is a substantial likelihood that the plaintiffs and others similarly situated will be injured in the future.” Haney, 2004 WL 2203481 at *8.
Finally, any suggestion that Plaintiffs should have brought damages claims in order to avoid mootness in this matter is misplaced. The constitutional harms which have been alleged in this case – ongoing violations of the First Amendment rights of both prisoners and the free world persons who wish to correspond with them – is an injury that qualifies as “irreparable injury.” “Irreparable injury” is distinguishable from mere injury, in that irreparable injury cannot be adequately compensated through the award of money. United States v. Jefferson County, 720
9

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F.2d 1511, 1520 (11th Cir. 1983); Ray v. School District of DeSoto County, 666 F. Supp. 1524, 1535 (M.D. Fla. 1987).
In the context of the First Amendment, the Supreme Court and Eleventh Circuit have uniformly held that the “loss of First Amendment freedoms, even for brief periods of time, unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976); KH Outdoor, LLC v. City of Trussville, 458 F.3d 1261, 1272 (11th Cir. 2006); S.D. v. St. Johns County School Dist., 632 F. Supp. 2d 1085, 1096 (M.D. Fla. 2009). The denial of these First Amendment rights – rights which are so vital to those individuals who are incarcerated – cannot be later undone by a monetary remedy. See Jefferson County, 720 F.2d at 1520.
CONCLUSION Because Plaintiffs bring their claims for injunctive and declaratory relief on behalf of a similarly situated class of persons, Defendants’ unconstitutional “postcard-only” mail policy is capable of repetition yet evading review, and Plaintiffs seek injunctive relief for acts that were authorized or part of a policy, Plaintiffs have standing to seek the injunctive and declaratory relief on behalf of the proposed class sought herein, and this case is not moot. Accordingly, Plaintiffs respectfully request that this Court return Plaintiffs’ Motion for Reconsideration and Recusal (D.E. 31) to the docket, vacate its sua sponte Order of Dismissal (D.E. 28), enter an Order of Recusal from any further proceedings, and direct the Clerk to transfer this matter to another judge.
Respectfully submitted, Randall C. Berg, Jr. Florida Bar No. 318371 Joshua A. Glickman Florida Bar No. 43994
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Shawn A. Heller Florida Bar No. 46346 Florida Justice Institute, Inc. 3750 Miami Tower 100 SE Second Street Miami, FL 33131-2309 Telephone: (888) 358-2081 toll free x 225 Facsimile: (305) 358-0910 RBerg@FloridaJusticeInstitute.org JGlickman@FloridaJusticeInstitute.org Sheller@FloridaJusticeInstitute.org Sylvia H. Walbolt Florida Bar No. 33604 Carlton Fields, P.A. 4221 W. Boy Scout Boulevard Suite 1000 Tampa, FL 33607 Telephone: (813) 223-7000 Facsimile: (813) 229-4133 Email: swalbolt@carltonfields.com Attorneys for the Plaintiffs
s/Joshua A. Glickman__ Joshua A. Glickman, Esq. Florida Bar No. 43994
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Case 8:09-cv-01891-EAK-TBM Document 38 Filed 03/25/11 Page 12 of 12 PageID 279
CERTIFICATE OF SERVICE I HEREBY CERTIFY that on March 25, 2011, I electronically filed the foregoing document with the Clerk of the Court using CM/ECF. I also certify that the foregoing document is being served this day on all counsel of record or pro se parties identified on the attached Service List in the manner specified, either via transmission of Notices of Electronic Filing generated by CM/ECF or in some other authorized manner for those counsel or parties who are not authorized to receive electronically Notices of Electronic Filing.
s/Joshua A. Glickman__ Joshua A. Glickman, Esq.
SERVICE LIST Case No. 8:09-cv-01891 Middle District of Florida, Tampa Division by CM/ECF: Counsel for the Defendants Jason L. Scarberry, Esq. Richard Giuffreda, Esq. Purdy, Jolly, Giuffreda & Barranco, P.A. 2455 E. Sunrise Blvd., Suite 1216 Ft. Lauderdale, FL 33304 jason@purdylaw.com richard@purdylaw.com
12

 
 Case 8:09-cv-01891-EAK-TBM Document 40 Filed 03/29/11 Page 1 of 2 PageID 281

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION

MICHAEL LINDSEY GAMBUZZA, etc., et al.,

CASE NO. 8:09-cv-1891-T-17TBM

Plaintiff,

v.

JAMES HIGGINBOTHAM, etc., et al.,

Defendants. ___________________________________/

RESPONSE TO THE COURT’S ORDER TO SHOW CAUSE The Defendants, MAJOR JAMES HIGGINBOTHAM, LT. PARMENTER, CAPTAIN ACKLES, and SHERIFF BRAD STEUBE, solely in their official capacity, by and through their undersigned attorneys, files this their Response to the Court’s Order to Show Cause, and would state as follows: The Defendants read the Court’s Order [D.E. #37] as stating that because the Plaintiffs only sought declaratory and injunctive relief in their Amended Complaint and, the inmate Plaintiffs were no longer incarcerated at the Manatee County Jail, that the Plaintiff’s claims were moot. As the Defendants were not opposed to the Court’s determination of mootness, the Defendants did not file a memorandum regarding this issue. The Defendants will prepare their Memorandum of Law and file it with the Court before April 1, 2011.

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Case 8:09-cv-01891-EAK-TBM Document 40 Filed 03/29/11 Page 2 of 2 PageID 282

CERIFICATE OF SERVICE

I HEREBY CERTIFY that I electronically filed a copy of the foregoing with the

Clerk of the Court by using the CM/ECF system, which will forward a true and correct copy

of the foregoing to: Joshua A. Glickman, Esquire, and Shawn A. Heller, Esquire, Florida

Justice Institute, Inc., 3750 Miami Tower, 100 SE Second Street, Miami, Fl 33131-2309, this 29th day of March, 2011.

PURDY, JOLLY, GIUFFREDA & BARRANCO, P.A.

Attorneys for Defendant

2455 East Sunrise Boulevard, Suite 1216

Fort Lauderdale, Florida 33304

Telephone (954) 462-3200

Telecopier (954) 462-3861

E-Mail:

jason@purdylaw.com

By: s/ Jason L. Scarberry JASON L. SCARBERRY Florida Bar No.: 0693375

Page 2 of 2

 
 Case 8:09-cv-01891-EAK-TBM Document 41 Filed 03/30/11 Page 1 of 8 PageID 283

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION

MICHAEL LINDSEY GAMBUZZA, etc., et al.,

CASE NO. 8:09-cv-1891-T-17TBM

Plaintiff,

v.

JAMES HIGGINBOTHAM, etc., et al.,

Defendants. ___________________________________/

DEFENDANTS’ MEMORANDUM OF LAW REGARDING MOOTNESS

The issue of mootness in the present case really turns on whether the Plaintiffs have standing to bring the claims as stated in their Amended Complaint. “A plaintiff will generally have standing where three criteria are met: (1) the plaintiff has experienced an injury in fact; (2) the injury is fairly traceable to the defendant’s conduct; and (3) the plaintiff’s harm is likely to be redressed should the court order relief.” See Doe v. Kearney, 329 F.3d 1286, 1292 (11th Cir. 2003)(citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)). In the present case, the Court has already held that the Plaintiffs’ Amended Complaint “lack[ed] an arguable basis in law because the Courts have found that the post-card only mail policy is ‘reasonably related to legitimate penological interests.’” [D.E. #37]. The Plaintiffs have not suffered an “injury in fact” in the present case. Further, even in the event they have suffered an injury “fairly traceable to the defendant’s conduct”, their subsequent release from the Manatee County Jail means that the Court is unable to prevent future harm.

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Plaintiffs must demonstrate a personal stake in the outcome in order to assure that concrete adverseness which sharpens the presentation of issues necessary for the proper resolution of constitutional questions. Abstract injury is not enough. The plaintiff must show that he has sustained or is immediately in danger of sustaining some direct injury as the result of the challenged official conduct and the injury or threat of injury must be both real and immediate, not conjectural or hypothetical. See City of Los Angeles v. Lyons, 461 U.S. 95, 101 (1983)(internal quotations and citations omitted)(emphasis added). “As general rule, transfer or release of inmate from prison will moot inmate's claims for injunctive and declaratory relief, as injunctive relief is a prospective remedy that is meant to prevent future injuries, but will not moot claim for monetary damages, since claim for monetary damages looks back in time and is intended to redress past injury.” See Smith v. Allen, 502 F.3d 1255, 1267 (11th Cir. 2007). Further, “[i]f the class has not yet been certified, it also justifies dismissal of the entire action.” See McKinnon v. Talladega County , Ala., 745 F.2d 1360, 1363 (D.C. Ala. 1984). As the plaintiffs have been released from custody and the class has not been certified, all of the Plaintiffs’ claims are subject to dismissal. In Sosna v. Iowa, 419 U.S. 393 (1975), the Supreme Court recognized an exception to this general rule when a plaintiff’s claims are “capable of repetition, yet evading review.” However, that holding is limited to cases where an individual’s claims become moot after a class has been duly certified. This is because the members of the class, who the named plaintiff is representing, may still have a controversy with the defendant. Our conclusion that this case is not moot in no way detracts from the firmly established requirement that the judicial power of Art. III courts extends only
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to cases and controversies specified in that Article. There must not only be a named plaintiff who has such a case or controversy at the time the complaint is filed, and at the time the class action is certified by the District Court pursuant to Rule 23, but there must be a live controversy at the time this Court reviews the case. The controversy may exist, however, between a named defendant and a member of the class represented by the named plaintiff, even though the claim of the named plaintiff has become moot. See Sosna v. Iowa, 419 U.S. 393, 402 (1975)(quotations and citations omitted). “Sosna decided that in the absence of a class action, the ‘capable of repetition, yet evading review’ doctrine was limited to the situation where two elements combined: (1) the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there was a reasonable expectation that the same complaining party would be subjected to the same action again.” See Weinstein v. Bradford, 423 U.S. 147, 149 (1975). The present doesn’t satisfy either of these requirements. In addition to Sosna, the Supreme Court applied the “capable of repetition, yet evading review” doctrine in Gerstein v. Pugh, 420 U.S. 103 (1975). In Gerstein v. Pugh, the Supreme Court applied the holding in Sosna to a class action brought by pretrial detainees claiming a constitutional right to a judicial hearing on the issue of probable cause and requesting declaratory and injunctive relief. Although the class representatives had been convicted, and were no longer pretrial detainees1, the Supreme Court held that the Plaintiffs’ claims were not moot because they belonged to “that narrow class of cases in which the
1Although the District Court certified the class, it was not clear from the record whether the named plaintiffs’ claims were moot at the time the class was certified. See Gerstein at 111, n. 11.
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mootness of a class representative’s2 claims do not moot the claims of the unnamed members of the class.” See Gerstein at 111, n. 11. However, Gerstein is distinguishable from the case at bar.
In Gerstein, the named Plaintiffs represented pretrial detainees whose “detention is by nature temporary, and it is most unlikely that any given individual could have his constitutional claim decided on appeal before he is either released or convicted.” Id at 111. “The individual could nonetheless suffer repeated deprivations, and it is certain that other persons similarly situated will be detained under allegedly unconstitutional procedures. The claim, in short, is one that is distinctly capable of repetition, yet evading review.”3 Id. In its reasoning, the Court stated “[i]t is by no means certain that any given individual, named as plaintiff, would be in pretrial custody long enough for a district judge to certify the class.” Id. Although the Plaintiffs were pretrial detainees ultimately released, the alleged unconstitutional policy also applies to convicted inmates who are serving sentences after conviction in the Manatee County Jail. Further, at the time the Amended Complaint was filed, Michael Gambuzza, one of the named Plaintiffs in this case, was incarcerated at the
2Although the Plaintiffs’ Amended Complaint brings the claims “on behalf of themselves and all others similarly situated”, this case was never certified as a class action and the Plaintiffs were never designated as representatives of that class.
3The defendants maintain that the Plaintiffs’ claims have been reviewed by the Court and dismissed as lacking an arguable basis in law. [D.E. #37].
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Manatee County Jail for one year and two hundred eighty-nine (289) days.4 A convicted individual serving a sentence in Manatee County Jail, or a pretrial detainee similarly situation to Mr. Gambuzza, would have ample time to file a complaint and have a Motion for Class Certification considered by the Court. Based on this distinguishing factor, the present case does not fall into that narrow class of cases that is capable of repetition, yet evading review.
In the event a named plaintiff’s Motion for Class Certification was denied, and his/her release from custody subsequently mooted his/her personal claim, he/she would still be able to appeal the denial of class certification. See United States Parole Comm’n v. Geraghty, 445 U.S. 388, 402 (1980)(citing Deposit Guaranty National Bank, Jackson, Mississippi v. Roper, 445 U.S. 326, 336-337 (1980)). While a named plaintiff, whose claims become moot, may appeal the denial of class certification, that is not the circumstance we are considering in this case. The instant matter does not fall into the class of cases in which a named plaintiff was permitted to pursue the appeal of the denial of class certification after he/she no longer had a personal stake in the case. The named Plaintiffs never filed a Motion for Class Certification and there is no appealable order related to the certification of the class.
The Court correctly cited to case law for the proposition that the fact the Plaintiffs may eventually find themselves inmates at the Manatee County Jail again does not provide them with standing to pursue their claims. See Spencer v. Kemna, 523 U.S. 1, 15 (1998); McKinnon v. Talladega County, Ala., 745 F.2d 1360, 1363 (D.C. Ala. 1984); Romano v.
4When Michael Gambuzza was finally released from the Manatee County Jail, he had been incarcerated at the Manatee County Jail for two years six months and one week.
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Case 8:09-cv-01891-EAK-TBM Document 41 Filed 03/30/11 Page 6 of 8 PageID 288
Rambosk, 2010WL2732005 (M.D. Fla. 2010). Although the threat of future harm may provide a plaintiff with standing to pursue his claims for injunctive or declaratory relief, the threat must be “sufficiently real and immediate to show an existing controversy.” See City of Los Angeles v. Lyons, supra at 103. In Lyons, the plaintiff received a preliminary injunction enjoining “the use of both the carotid-artery and bar arm holds under circumstances which do not threaten death or serious bodily injury.” Id at 99-100. In finding that the plaintiff’s claims were moot, the Supreme Court stated:
In order to establish an actual controversy in this case, Lyons would have had not only to allege that he would have another encounter with the police but also to make the incredible assertion either, (1) that all police officers in Los Angeles always choke any citizen with whom they happen to have an encounter, whether for the purpose of arrest, issuing a citation or for questioning or, (2) that the City ordered or authorized police officers to act in such [a] manner. See Lyons at 105-106. As stated above, the Plaintiffs release from the Manatee County Jail rendered their claims for injunctive and declaratory relief moot because they no longer had a personal stake in the matter. While the phrase “the City ordered or authorized police officer to act in such [a] manner” appears to stand for the proposition that the “Post-Card Only Policy” provides the plaintiffs with standing based on the sufficiently real and immediate threat showing an existing controversy, an examination of the cases applying this language demonstrate that it does not apply to the present case. See Honig v. Doe, 484 U.S. 305 (1988)(concluding it was certainly reasonable that an emotionally disturbed child would return to the classroom and “again engage in classroom misconduct” and that the school would attempt to remove
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Case 8:09-cv-01891-EAK-TBM Document 41 Filed 03/30/11 Page 7 of 8 PageID 289
the student again); Lynch v. Baxley, 744 F.2d 1452 (11th Cir. 1984)(holding that a mentally
ill plaintiff had standing to seek an injunction against Alabama’s practice of detaining
individuals in county jails pending civil commitments); Church v. City of Huntsville, 30 F.3d 1332 (11th Cir. 1994)(stating that “[b]ecause of the allegedly involuntary nature of their
condition, the plaintiffs cannot avoid future exposure to the challenged course of conduct in which the City engages”); 31 Foster Children v. Bush, 329 F.3d 1255 (11th Cir.
2003)(holding that foster children had standing because they were involuntarily in the
custody of the defendants and would be until at least their eighteenth birthdays). The
common thread in all these cases is that the plaintiffs’ exposure to the alleged unconsitutional
policies of the government entity was involuntary. In distinguishing Church v. City of
Huntsville, infra, from Lyons, the Eleventh Circuit Court of Appeals stated:
The situation in this case differs materially from that in Lyons, because the plaintiffs here are far more likely to have future encounters with the police than was Lyons. It is true that the federal courts are “generally ... unwilling to assume that the party seeking relief will repeat the type of misconduct that would once again place him or her at risk of that injury.” Honig v. Doe, 484 U.S. 305, 320, 108 S.Ct. 592, 602, 98 L.Ed.2d 686 (1988) (collecting cases). Thus, in Lyons, the Supreme Court refused to assume that the plaintiff would again violate the traffic laws, prompting the police to stop him. However, the Supreme Court has held that such reluctance is not warranted when, for reasons beyond the plaintiff's control, he or she is unable to avoid repeating the conduct that led to the original injury at the hands of the defendant. Id., 108 S.Ct. at 602. See Church v. City of Huntsville, 30 F.3d 1332, 1337-38 (11th Cir. 1994).
In order for threat to the plaintiffs to be “sufficiently real and immediate to show an existing
controversy”, the Court would have to assume that the Plaintiffs would again break the law
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Case 8:09-cv-01891-EAK-TBM Document 41 Filed 03/30/11 Page 8 of 8 PageID 290

(in Manatee County), be arrested, and spend time in the Manatee County Jail, an assumption

both the Supreme Court and the Eleventh Circuit have been reluctant to make. Therefore,

the plaintiffs fail to satisfy the second prong of the “capable of repetition, yet evading

review” doctrine.

CONCLUSION

As the Plaintiff’s claims do not challenge an action that in duration is too short to be

fully litigated prior to its cessation or expiration, and there is no reasonable expectation that

the the Plaintiffs will be subjected to the same action again, the Plaintiffs’ claims for

injunctive and declaratory relief are moot.

CERIFICATE OF SERVICE

I HEREBY CERTIFY that I electronically filed a copy of the foregoing with the

Clerk of the Court by using the CM/ECF system, which will forward a true and correct copy

of the foregoing to: Joshua A. Glickman, Esquire, and Shawn A. Heller, Esquire, Florida

Justice Institute, Inc., 3750 Miami Tower, 100 SE Second Street, Miami, Fl 33131-2309, this

30th day of March, 2011.

PURDY, JOLLY, GIUFFREDA & BARRANCO, P.A.

Attorneys for Defendant

2455 East Sunrise Boulevard, Suite 1216

Fort Lauderdale, Florida 33304

Telephone (954) 462-3200

Telecopier (954) 462-3861

E-Mail:

jason@purdylaw.com

By: s/ Jason L. Scarberry JASON L. SCARBERRY Florida Bar No.: 0693375

Page 8 of 8

 
 Case: 8:09-cv-1891 As of: 05/07/2013 04:15 PM EDT 1 of 9
U.S. District Court Middle District of Florida (Tampa) CIVIL DOCKET FOR CASE #: 8:09−cv−01891−EAK−TBM

CLOSED

Gambuzza et al v. Parmenter et al Assigned to: Judge Elizabeth A. Kovachevich Referred to: Magistrate Judge Thomas B. McCoun III Cause: 42:1983 Prisoner Civil Rights
Plaintiff

Date Filed: 09/04/2009 Date Terminated: 06/01/2010 Jury Demand: Defendant Nature of Suit: 555 Prisoner Civil Rights (Prison Condition) Jurisdiction: Federal Question

Michael Lindsey Gambuzza #2008 006155 Manatee County Jail 14470 Harlee Road Palmetto, FL 34221 on behalf of themselves and all others similarly situated

represented by James E. Felman Kynes, Markman &Felman, P.A. 100 S Ashley Dr − Ste 1300 PO Box 3396 Tampa, FL 33601−3396 813/229−1118 Fax: 813/221−6750 Email: JFelman@kmf−law.com TERMINATED: 03/11/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Joshua Aaron Glickman Florida Justice Institute, Inc. 3750 Miami Tower 100 SE 2nd St Miami, FL 33131−2309 202−709−5744 Fax: 866−893−0416 Email: josh@sjlawcollective.com TERMINATED: 07/05/2012 LEAD ATTORNEY

Katherine Earle Yanes Kynes, Markman &Felman, P.A. 100 S Ashley Dr − Ste 1300 PO Box 3396 Tampa, FL 33601−3396 813/229−1118 Fax: 813−221−6750 Email: KYanes@kmf−law.com TERMINATED: 03/11/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Randall Challen Berg , Jr. Florida Justice Institute, Inc. 3750 Miami Tower 100 SE 2nd St Miami, FL 33131−2309 305/358−2081 Fax: 305/358−0910 Email: rberg@floridajusticeinstitute.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Shawn Alex Heller Social Justice Law Collective, P.L. P.O. Box 70327 Washington, DC 20024

Case: 8:09-cv-1891 As of: 05/07/2013 04:15 PM EDT 2 of 9

202−709−5744 Fax: 866−893−0416 Email: shawn@shawnheller.com TERMINATED: 09/17/2012 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sylvia H. Walbolt Carlton Fields, PA 4221 W Boy Scout Blvd − Ste 1000 PO Box 3239 Tampa, FL 33601−3239 813/223−7000 Fax: 813/229−4133 Email: swalbolt@carltonfields.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Christopher Scott Drescher #2008−006156 Manatee County Jail 14470 Harlee Road Palmetto, FL 34221 on behalf of themselves and all others similarly situated

represented by James E. Felman (See above for address) TERMINATED: 03/11/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joshua Aaron Glickman (See above for address) TERMINATED: 07/05/2012 LEAD ATTORNEY

Katherine Earle Yanes (See above for address) TERMINATED: 03/11/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Randall Challen Berg , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Shawn Alex Heller (See above for address) TERMINATED: 09/17/2012 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sylvia H. Walbolt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Deborah Sorensen on behalf of themselves and all others similarly situated

represented by Joshua Aaron Glickman (See above for address) TERMINATED: 07/05/2012 LEAD ATTORNEY

Randall Challen Berg , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Shawn Alex Heller

Case: 8:09-cv-1891 As of: 05/07/2013 04:15 PM EDT 3 of 9

(See above for address) TERMINATED: 09/17/2012 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sylvia H. Walbolt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Katherine Earle Yanes Kynes, Markman &Felman, PA 100 S Ashley Dr − Ste 1300 PO Box 3396 Tampa, FL 33601−3396 813/229−1118 Fax: 813−221−6750 Email: KYanes@kmf−law.com TERMINATED: 03/11/2011 ATTORNEY TO BE NOTICED

Plaintiff
Barbara Schnurr on behalf of themselves and all others similarly situated

represented by Joshua Aaron Glickman (See above for address) TERMINATED: 07/05/2012 LEAD ATTORNEY

Randall Challen Berg , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Shawn Alex Heller (See above for address) TERMINATED: 09/17/2012 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sylvia H. Walbolt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Katherine Earle Yanes (See above for address) TERMINATED: 03/11/2011 ATTORNEY TO BE NOTICED

V. Defendant Lieutenant Parmenter individually TERMINATED: 02/18/2010
Defendant

represented by Richard A. Giuffreda Purdy, Jolly, Giuffreda &Barranco, PA Suite 1216 2455 E Sunrise Blvd Ft Lauderdale, FL 33304 954/462−3200 Ext 104 Fax: 954/462−3861 Email: richard@purdylaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 8:09-cv-1891 As of: 05/07/2013 04:15 PM EDT 4 of 9

Lieutenant Parmenter in his official capacity TERMINATED: 02/18/2010

represented by Jason Lee Scarberry Purdy, Jolly, Giuffreda &Barranco, PA* Suite 1216 2455 E Sunrise Blvd Ft Lauderdale, FL 33304 954/462−3200 ext. 109 Fax: 954/462−3861 Email: Jason@purdylaw.com TERMINATED: 04/18/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Ackles Captain individually TERMINATED: 02/18/2010

represented by Jason Lee Scarberry (See above for address) TERMINATED: 04/18/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Ackles Captain in his official capacity TERMINATED: 02/18/2010

Defendant
Jamey Higginbotham individually TERMINATED: 02/18/2010

Defendant
Jamey Higginbotham in his official capacity TERMINATED: 02/18/2010

Defendant
Brad Steube individually TERMINATED: 02/18/2010

represented by Richard A. Giuffreda (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Brad Steube Sheriff, in their official capacities

represented by Jason Lee Scarberry Purdy, Jolly, Giuffreda &Barranco, PA Suite 1216 2455 E Sunrise Blvd Ft Lauderdale, FL 33304 954/462−3200 ext. 109 Fax: 954/462−3861 Email: Jason@purdylaw.com TERMINATED: 04/18/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
T. McGuire individually TERMINATED: 02/18/2010

Defendant

represented by

Case: 8:09-cv-1891 As of: 05/07/2013 04:15 PM EDT 5 of 9

T. McGuire in his official capacity TERMINATED: 02/18/2010

Jason Lee Scarberry (See above for address) TERMINATED: 04/18/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
L. Brooks individually TERMINATED: 02/18/2010

Defendant
L. Brooks in his official capacity TERMINATED: 02/18/2010

Defendant
C. Bejarano individually TERMINATED: 02/18/2010

Defendant
C. Bejarano in his official capacity TERMINATED: 02/18/2010

represented by Jason Lee Scarberry (See above for address) TERMINATED: 04/18/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
James Higginbotham Major, in their official capacities

represented by Jason Lee Scarberry (See above for address) TERMINATED: 04/18/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Richard A. Giuffreda (See above for address) ATTORNEY TO BE NOTICED

Defendant
Anthony Ackles Captain, in their official capacities

represented by Jason Lee Scarberry (See above for address) TERMINATED: 04/18/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Richard A. Giuffreda (See above for address) ATTORNEY TO BE NOTICED

Defendant
Diane Parmenter Lieutenant, in their official capacities

represented by Jason Lee Scarberry (See above for address) TERMINATED: 04/18/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Richard A. Giuffreda (See above for address) ATTORNEY TO BE NOTICED

Case: 8:09-cv-1891 As of: 05/07/2013 04:15 PM EDT 6 of 9

Date Filed 09/04/2009
09/21/2009 09/22/2009 09/22/2009 09/22/2009 10/26/2009 10/28/2009 12/23/2009 12/28/2009 02/18/2010
03/15/2010
03/15/2010 03/15/2010

# Docket Text
1 COMPLAINT against Brad Steube(in his official capacity), T. McGuire(individually), T. McGuire(in his official capacity), L. Brooks(individually), L. Brooks(in his official capacity), C. Bejarano(individually), C. Bejarano(in his official capacity), Parmenter Lieutenant(individually), Parmenter Lieutenant(in his official capacity), Ackles Captain(individually), Ackles Captain(in his official capacity), Jamey Higgenbotham(individually), Jamey Higgenbotham(in his official capacity), Brad Steube(individually) filed by Michael Lindsey Gambuzza, Christopher Scott Drescher. (NOTE: Complaint does not contain an original signature − it appears to be a photo copy)(LYB) (Entered: 09/15/2009)
2 NOTICE of designation under Local Rule 3.05 − track 1. (AO) (Entered: 09/21/2009)
3 ORDER reassigning this case to the Honorable Elizabeth A. Kovachevich for all further proceedings pursuant to Local Rule 1.04. Signed by Judge James D. Whittemore on 9/21/2009. (KE) (Entered: 09/22/2009)
4 Case reassigned to Judge Elizabeth A. Kovachevich. New case number: 8:09−cv−1891−T−17TBM. Judge James D. Whittemore no longer assigned to the case. (LYB) (Entered: 09/22/2009)
5 STANDING ORDER: Filing of documents that exceed twenty−five pages. Signed by Judge Elizabeth A. Kovachevich on 9/22/2009. (LYB) (Entered: 09/22/2009)
6 MOTION to appoint counsel (pro bono) by Michael Lindsey Gambuzza, Christopher Scott Drescher. (Attachments: # 1 Exhibit A)(Yanes, Katherine) Motions referred to Magistrate Judge Thomas B. McCoun III. (Entered: 10/26/2009)
7 ORDER granting 6 Katherine Earle Yanes', James E. Felman's, and Kynes, Markman and Felman's request for appointment as pro bono counsel on behalf of the Plaintiffs. Signed by Judge Elizabeth A. Kovachevich on 10/28/2009. (SM) (Entered: 10/28/2009)
8 MOTION to extend time to Serve the Complaint by Michael Lindsey Gambuzza, Christopher Scott Drescher. (Yanes, Katherine) (Entered: 12/23/2009)
9 ENDORSED ORDER granting 8 Counsel's Motion to extend time to file a complaint. The complaint shall be filed on or before February 26, 2010. Signed by Judge Elizabeth A. Kovachevich on 12/28/2009. (SM) (Entered: 12/28/2009)
10 AMENDED COMPLAINT against Ackles Captain(in his official capacity), Jamey Higgenbotham(in his official capacity), Lieutenant Parmenter(in his official capacity), Brad Steube(in his official capacity) filed by Christopher Scott Drescher, Michael Lindsey Gambuzza, Deborah Sorensen, Barbara Schnurr.(Yanes, Katherine) (Entered: 02/18/2010)
11 *** DOCUMENT TERMINATED, COUNSEL NOTIFIED TO REFILE WAIVERS SEPARATELY *** WAIVER OF SERVICE returned executed on 03/09/2010 by Christopher Scott Drescher, Michael Lindsey Gambuzza, Barbara Schnurr, Deborah Sorensen as to Anthony Ackles, James Higginbotham, Diane Parmenter, Brad Steube(Sheriff, in their official capacities). (Attachments: # 1 Exhibit Waivers)(Yanes, Katherine) Modified on 3/15/2010 (LYB). (Entered: 03/15/2010)
12 WAIVER OF SERVICE returned executed on 03/09/2010 by Christopher Scott Drescher, Michael Lindsey Gambuzza, Barbara Schnurr, Deborah Sorensen as to Anthony Ackles. (Attachments: # 1 Exhibit Waiver)(Yanes, Katherine) (Entered: 03/15/2010)
13 WAIVER OF SERVICE returned executed on 03/09/2010 by Christopher Scott Drescher, Michael Lindsey Gambuzza, Barbara Schnurr, Deborah Sorensen as to James Higginbotham. (Attachments: # 1 Exhibit Waiver)(Yanes, Katherine) (Entered: 03/15/2010)

Case: 8:09-cv-1891 As of: 05/07/2013 04:15 PM EDT 7 of 9

03/15/2010 03/15/2010 03/23/2010 04/09/2010
04/15/2010 04/15/2010 04/19/2010 04/21/2010 04/23/2010 04/23/2010 04/27/2010 05/12/2010
05/17/2010 05/21/2010 05/28/2010 06/23/2010

14 WAIVER OF SERVICE returned executed on 03/09/2010 by Christopher Scott Drescher, Michael Lindsey Gambuzza, Barbara Schnurr, Deborah Sorensen as to Diane Parmenter. (Attachments: # 1 Exhibit Waiver)(Yanes, Katherine) (Entered: 03/15/2010)
15 WAIVER OF SERVICE returned executed on 03/09/2010 by Christopher Scott Drescher, Michael Lindsey Gambuzza, Barbara Schnurr, Deborah Sorensen as to Brad Steube(Sheriff, in their official capacities). (Attachments: # 1 Exhibit Waiver)(Yanes, Katherine) (Entered: 03/15/2010)
16 AMENDED NOTICE of designation under Local Rule 3.05 − track 2. (CLM) (Entered: 03/23/2010)
17 NOTICE of Appearance by Jason Lee Scarberry on behalf of C. Bejarano(in his official capacity), Ackles Captain(in his official capacity), Jamey Higgenbotham(individually), T. McGuire(in his official capacity), Lieutenant Parmenter(individually), Brad Steube(Sheriff, in their official capacities) (Scarberry, Jason) (Entered: 04/09/2010)
18 MOTION to dismiss Plaintiff's Amended Complaint (And Memorandum of Law) by Anthony Ackles, James Higginbotham, Diane Parmenter. (Scarberry, Jason) (Entered: 04/15/2010)
19 Defendant Sheriff's ANSWER and affirmative defenses with Jury Demand to 10 Amended complaint by Brad Steube(Sheriff, in their official capacities).(Scarberry, Jason) (Entered: 04/15/2010)
20 NOTICE of Appearance by Richard A. Giuffreda on behalf of Anthony Ackles, James Higginbotham, Diane Parmenter, Brad Steube(Sheriff, in their official capacities) (Giuffreda, Richard) (Entered: 04/19/2010)
21 CASE MANAGEMENT REPORT. (Yanes, Katherine) (Entered: 04/21/2010)
22 RESPONSE to motion re 18 MOTION to dismiss Plaintiff's Amended Complaint (And Memorandum of Law) filed by Christopher Scott Drescher, Michael Lindsey Gambuzza, Barbara Schnurr, Deborah Sorensen. (Yanes, Katherine) (Entered: 04/23/2010)
23 Unopposed MOTION for miscellaneous relief, specifically Set Class Certification Briefing Schedule by Christopher Scott Drescher, Michael Lindsey Gambuzza, Barbara Schnurr, Deborah Sorensen. (Yanes, Katherine) (Entered: 04/23/2010)
24 ORDER granting 23 Motion to set class certification briefing schedule. Signed by Judge Elizabeth A. Kovachevich on 4/27/2010. (JNB) (Entered: 04/27/2010)
25 MOTION to disqualify judge for Bias or Prejudice (And Memorandum of Law) by Anthony Ackles, James Higginbotham, Diane Parmenter, Brad Steube(Sheriff, in their official capacities). (Attachments: # 1 Exhibit A−Plf's Compl, # 2 Exhibit B−Order, # 3 Exhibit C−Amended Compl, # 4 Exhibit D−Phone Memo, # 5 Exhibit E−Order, # 6 Exhibit F−Affidavit of Michele Hall, # 7 Exhibit G−Email dated 9/10/2009, # 8 Exhibit H−handwrittten notes)(Scarberry, Jason) (Entered: 05/12/2010)
26 MEMORANDUM in opposition re 25 Motion to disqualify judge filed by Christopher Scott Drescher, Michael Lindsey Gambuzza, Barbara Schnurr, Deborah Sorensen. (Yanes, Katherine) (Entered: 05/17/2010)
27 MOTION for leave to file Reply Memorandum in Support of their Motion to Disqualify (And Memorandum of Law) by Anthony Ackles, James Higginbotham, Diane Parmenter, Brad Steube(Sheriff, in their official capacities). (Scarberry, Jason) (Entered: 05/21/2010)
28 ORDER that this case is dismissed. The Clerk is directed to close this case. Signed by Judge Elizabeth A. Kovachevich on 5/28/2010. (SM) (Entered: 05/28/2010)
29 *** DOCUMENT TERMINATED, COUNSEL NOTIFIED TO REFILE AS A MOTION *** NOTICE by Christopher Scott Drescher, Michael Lindsey Gambuzza, Barbara Schnurr, Deborah Sorensen of Substitution of Counsel (Yanes, Katherine) Modified on 6/24/2010 (LYB). (Entered: 06/23/2010)

Case: 8:09-cv-1891 As of: 05/07/2013 04:15 PM EDT 8 of 9

06/23/2010 06/23/2010 06/25/2010 06/25/2010 07/01/2010 07/09/2010 08/18/2010 03/11/2011 03/25/2011 03/29/2011
03/29/2011 03/30/2011 04/15/2011 04/19/2011 04/21/2011 06/07/2011

30 NOTICE of Appearance by Randall Challen Berg, Jr on behalf of Christopher Scott Drescher, Michael Lindsey Gambuzza, Barbara Schnurr, Deborah Sorensen (Berg, Randall) (Entered: 06/23/2010)
31 MOTION for reconsideration and Recusal by Christopher Scott Drescher, Michael Lindsey Gambuzza, Barbara Schnurr, Deborah Sorensen. (Berg, Randall) (Entered: 06/23/2010)
32 NOTICE of Appearance by Joshua Aaron Glickman on behalf of Christopher Scott Drescher, Michael Lindsey Gambuzza, Barbara Schnurr, Deborah Sorensen (Glickman, Joshua) (Entered: 06/25/2010)
33 NOTICE of Appearance by Shawn A. Heller on behalf of Christopher Scott Drescher, Michael Lindsey Gambuzza, Barbara Schnurr, Deborah Sorensen (Heller, Shawn) (Entered: 06/25/2010)
34 MEMORANDUM in opposition re 31 Motion for reconsideration filed by Anthony Ackles, James Higginbotham, Lieutenant Parmenter(individually), Brad Steube(Sheriff, in their official capacities). (Scarberry, Jason) (Entered: 07/01/2010)
35 MOTION for to withdraw as attorney by Christopher Scott Drescher, Michael Lindsey Gambuzza, Barbara Schnurr, Deborah Sorensen. (Yanes, Katherine) (Entered: 07/09/2010)
36 NOTICE of Appearance by Sylvia H. Walbolt on behalf of Christopher Scott Drescher, Michael Lindsey Gambuzza, Barbara Schnurr, Deborah Sorensen (Walbolt, Sylvia) (Entered: 08/18/2010)
37 ORDER granting 35 Counsel's Motion to withdraw as attorney. On or before March 25, 2011, the parties shall comply with the requirements of this order. Signed by Judge Elizabeth A. Kovachevich on 3/11/2011. (SM) (Entered: 03/11/2011)
38 RESPONSE re 37 Order on motion to withdraw as attorney filed by Christopher Scott Drescher, Michael Lindsey Gambuzza, Barbara Schnurr, Deborah Sorensen. (Glickman, Joshua) (Entered: 03/25/2011)
39 ORDER that on or before April 1, 2011, Defendants shall show cause why they have not filed their memorandum of law as to whether this case is moot. On that same date, Defendants shall file their memorandum of law as directed in the March 11, 2011 order. Signed by Judge Elizabeth A. Kovachevich on 3/29/2011. (SM) (Entered: 03/29/2011)
40 RESPONSE TO ORDER TO SHOW CAUSE re 39 Order filed by Ackles Captain(individually), James Higginbotham, Lieutenant Parmenter(in his official capacity), Brad Steube(Sheriff, in their official capacities). (Scarberry, Jason) (Entered: 03/29/2011)
41 RESPONSE re 37 Order on motion to withdraw as attorney filed by Ackles Captain(in his official capacity), James Higginbotham, Lieutenant Parmenter(individually), Brad Steube(Sheriff, in their official capacities). (Scarberry, Jason) (Entered: 03/30/2011)
42 NOTICE by Anthony Ackles, James Higginbotham, Diane Parmenter, Brad Steube(Sheriff, in their official capacities) of Appearance/ Substitution of Counsel (Giuffreda, Richard) (Entered: 04/15/2011)
43 MOTION to substitute attorney by Anthony Ackles, James Higginbotham, Lieutenant Parmenter(individually), Brad Steube(individually). (Giuffreda, Richard) (Entered: 04/19/2011)
44 ENDORSED ORDER granting 43 Motion to substitute attorney. Signed by Judge Elizabeth A. Kovachevich on 4/21/2011. (SM) (Entered: 04/21/2011)
45 NOTICE of supplemental authority by Christopher Scott Drescher, Michael Lindsey Gambuzza, Barbara Schnurr, Deborah Sorensen (Attachments: # 1 Exhibit U.S. Dist. Ct. Decision Enjoining Postcard Only Jail Policy)(Berg, Randall) (Entered: 06/07/2011)

Case: 8:09-cv-1891 As of: 05/07/2013 04:15 PM EDT 9 of 9

06/23/2011 07/03/2012 07/04/2012 09/12/2012 09/14/2012

46 RESPONSE re 45 Notice of supplemental authority filed by Anthony Ackles, James Higginbotham, Diane Parmenter, Brad Steube(Sheriff, in their official capacities). (Giuffreda, Richard) (Entered: 06/23/2011)
47 MOTION for Joshua A. Glickman to withdraw as attorney by Christopher Scott Drescher, Michael Lindsey Gambuzza, Barbara Schnurr, Deborah Sorensen. (Glickman, Joshua) (Entered: 07/03/2012)
48 ENDORSED ORDER granting 47 Attorney Glickman's Motion to withdraw as attorney. Signed by Judge Elizabeth A. Kovachevich on 7/4/2012. (SM) (Entered: 07/04/2012)
49 Unopposed MOTION for Shawn Heller to withdraw as attorney by All Plaintiffs. (Heller, Shawn) (Entered: 09/12/2012)
50 ENDORSED ORDER granting 49 Shawn Heller's unopposed Motion to withdraw as attorney. Signed by Judge Elizabeth A. Kovachevich on 9/14/2012. (SM) (Entered: 09/14/2012)