Case 8:12-cv-00568-SDM-MAP Document 1 Filed 03/15/12 Page 1 of 10 PageID 1

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION

J.B., a minor, by and through his

)

next friend, Chanda Hughes;

)

F.J.P., a minor, by and through his next )

friend, Violene Jean-Pierre; and

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J.D., a minor, by and through his

)

next friend, Brenda Sheffield; on behalf )

of themselves and all others similarly

)

situated,

)

)

Plaintiffs,

)

)

v.

)

)

Polk County Sheriff, in his official

)

capacity,

)

)

Defendant.

)

____________________________________)

Civil Case No. ____________________

COMPLAINT – CLASS ACTION

1. This is a c ivil c lass action filed pur suant to 42 U.S.C. § 1983 t o vi ndicate t he

rights of individuals who are under the jurisdiction of the juvenile court and who are detained in

the C entral C ounty J ail i n P olk C ounty, F lorida ( “Polk C ounty J ail”), under t he E ighth a nd

Fourteenth Amendments to the United States Constitution. Plaintiff minors J.B., F.J.P. and J.D.

are children presently incarcerated at the Polk County Jail. They seek injunctive and declaratory

relief on behalf of themselves and all others similarly situated.

JURISDICTION

2. This a ction a rises unde r t he Eighth a nd Fourteenth A mendments to t he U nited

States Constitution and 42 U.S.C. § 1983. This Court has jurisdiction pursuant to 28 U.S.C. §§

1331 and 1343(a)(3).

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VENUE 3. Venue is proper in this Court under 28 U.S.C. § 1391(b)(2) because “a substantial part of the events or omissions giving rise to the claim[s] occurred” in this district. This Court is authorized t o g rant de claratory r elief unde r 28 U .S.C. §§ 2201 a nd 220 2, a nd i njunctive r elief pursuant to Rule 65 of the Federal Rules of Civil Procedure.
PARTIES 4. Plaintiffs are children who are currently incarcerated at the Polk County Jail and who are subject to conditions of confinement that violate their rights under the U.S. Constitution. 5. Plaintiff J.B. is 15 years old. He is incarcerated at the Polk County Jail, where he has been ordered detained for 21 days on an allegation that he has violated probation. 6. Plaintiff F.J.P. is 17 years old. He is incarcerated at the Polk County Jail, where he is serving a sentence for a juvenile probation violation. 7. Plaintiff J.D. i s 17 years old. He is i ncarcerated at t he Polk County J ail on a charge of juvenile delinquency. 8. Defendant Polk County Sheriff is the duly elected Sheriff of Polk County, Florida. As Sheriff, D efendant ove rsees l aw e nforcement i n t he c ounty. Defendant i s r esponsible f or ensuring that the Polk County Jail operates in compliance with the laws of the State of Florida and t he United S tates C onstitution. He i s t he f inal de cision m aker for t he P olk C ounty J ail. Defendant is sued in his official capacity.
CLASS ACTION ALLEGATIONS 9. The n amed P laintiffs br ing t his s uit on t heir ow n be half a nd on be half of a ll children who are, or will in the future be, incarcerated at the Polk County Jail.
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10. The class is defined as: All individuals under the sole jurisdiction of the juvenile court who are or who will in the future be incarcerated at the Polk County Jail.
11. This s uit i s properly m aintainable as a class a ction pursuant t o F ederal R ules of Civil Procedure 23(a) and (b)(2).
12. The c lass is s o n umerous th at jo inder o f a ll members is imp ractical. Upon information a nd be lief, Polk County J ail c urrently hous es approximately 70 to 80 children. Children charged as juveniles are incarcerated at the jail for varying lengths of time, typically 21 days o r l ess pending di sposition of t he c harges a gainst t hem, and t he population c hanges on a daily basis.
13. The c lass a lso i ncludes f uture m embers w hose na mes a re not know n, a s t he facility regularly admits new children who are members of the class.
14. There are questions of law and fact common to all class members, including but not limited to whether conditions of confinement of children incarcerated at the Polk County Jail violate their rights under the Eighth and Fourteenth Amendments to the U.S. Constitution.
15. Because t he p olicies, p ractices and customs ch allenged i n t his co mplaint a pply with e qual f orce t o t he named P laintiffs a nd t he ot her m embers of t he class, t he c laims of t he named Plaintiffs are typical of the class in general.
16. The named Plaintiffs will fairly and adequately represent the interests of the class. They possess a strong personal interest in the subject matter of the lawsuit and are represented by experienced c ounsel w ith e xpertise i n c lass a ction pr ison c onditions l itigation i n f ederal c ourt. Counsel have the legal knowledge and resources to fairly and adequately represent the interests of all class members in this action.
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17. The D efendants h ave acted or r efused t o act on grounds generally a pplicable t o the cl ass: t heir p olicies, p ractices, a cts an d omissions h ave af fected al l cl ass m embers. Accordingly, final injunctive and declaratory relief is appropriate to the class as a whole.
STATEMENT OF FACTS 18. In 2011, t he Florida le gislature p assed a l aw f or th e f irst time authorizing Counties to house children facing juvenile charges in county jails rather than in the custody of the Florida Department of Juvenile Justice. P olk County is the onl y county to have taken over the de tention of p re-adjudicated j uveniles und er j ail s tandards b ased on a n a dult c orrectional model r ather t han t he protective D JJ s tandards de veloped b y p rofessionals with expertise working with children. 19. Since October 2011, P olk County has incarcerated children as young as 8 at the Polk County Jail pending resolution of juvenile charges against them. 20. Defendant P olk C ounty S heriff ha s boa sted t hat hi s obj ective i n incarcerating these children at the jail is to save the county large sums of money previously paid to the Florida Department of Juvenile Justice for their care. 21. Although t he F lorida j uvenile j ustice s ystem i s pr emised on pr oviding rehabilitation t o c hildren c harged w ith de linquency, D efendant de scribes t hese c hildren a s “incorrigible” – which means incapable of correction – and treats them punitively in accordance with that attitude . 22. Florida’s ju venile ju stice s ystem is c harged w ith a dministering a s ystem o f “prevention, early intervention, control, and rehabilitative treatment of delinquent behavior.” Fla. Stat. § 985.601( 1) ( 2011). The e xpress pur pose of Florida’s juvenile ju stice s ystem is rehabilitation, not puni shment. For t his r eason, the S tate o f Florida is not r equired t o a fford
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children w ith the f ull panoply o f due p rocess s afeguards that a re pr ovided i n a dult c riminal proceedings. For ex ample, t here i s no r ight t o a j ury t rial f or c hildren in th e ju venile ju stice system, nor do c hildren have a right to bail. Where, as in Florida, the purpose of detaining and imprisoning children is treatment and rehabilitation, due process requires that the conditions and programs in facilities that house children must be reasonably related to that purpose.
23. This is in s tark c ontrast to F lorida’s a dult c riminal ju stice s ystem, w hich is intended to exact punishment, not provide rehabilitation.
24. Like Florida Department of Corrections facilities, the Polk County Jail was built to house adults. Although youth are kept in separate units, they are housed in a building that also houses adults.
25. Defendant s ubjects children t o a dult c orrectional c onditions t hat a re i n vi olation of the U.S. Constitution, harming and placing ch ildren at unnecessary an d unacceptable risk of physical and emotional harm.
26. At the Polk County Jail, children are housed in cells without an adult presence to supervise them, leaving them unattended. Rather than provide adequate staffing and training, the Defendant fails to supervise and protect children. Instead, the Polk County Jail unlawfully uses isolation of children in cages, “lockdown” and chemical agents to punish children. Further, the Defendant fails to provide children in its custody with acceptable standards of care and treatment for detained children and denies them the right to individualized care and treatment.
27. The Defendant fails to a dequately pr otect t he youth f rom ha rm b y refusing t o provide a ppropriate l evels of s upervision. A s a r esult, c hildren predictably fight a mong themselves – at times c ausing each other serious injury. The D efendant allows these fights t o occur and do es nothing t o prevent the c onflict t hat is in evitable when multiple te enagers a re
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confined in close quarters. In the aftermath of these fights, staff respond with excessive force – punishing youth w ith t he us e of da ngerous c hemical a gents t hat c ause bur ning, c hoking, difficulty breathing and vomiting.
28. Defendant and his agents use these chemical agents without employing common safeguards, s uch as s torage i n a l ocked box , a nd de ploy t he c hemicals punitively a nd without regard for children’s age, size and health conditions that may make such use of force particularly harmful or even lethal.
29. Defendant doe s not provide c hildren w ith the developmentally a ppropriate interventions a nd rehabilitative s ervices that the j uvenile j ustice s ystem i s i ntended t o pr ovide. Instead, Polk County Jail staff routinely treat children punitively – using violence, taunts, threats and extraordinarily foul language.
30. Despite state and federal requirements to provide education, children are offered inadequate educational services. Rather than provide an appropriate education, Defendant lumps children of different ages and grades together in a makeshift classroom at the jail, without any regard to a child’s individual learning needs. When children are not in the makeshift classroom, the Defendant sometimes locks them in cells or forces them to spend hours or sometimes days in a “ cage.” The cage i s a box -like e nclosure ma de w ith me tal grates o n a ll s ides. It is empty, except for a narrow hard bench against one side.
31. Children are often forced to eat in their cells, where their toilets are located. These toilets are rarely cleaned; to clean the toilet, the children must use the shower soap they receive for their personal hygiene.
32. The children are permitted outdoors only sporadically, and never for more than an hour a day.
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33. Despite th e r ehabilitative p urpose f or w hich these ch ildren are d etained, Defendant does not provide them with any rehabilitative services, such as counseling, treatment, and developmentally a ppropriate activities that a re r easonably r elated t o t he pur pose of t heir detention.
PLAINTIFFS’ FACTS 34. Plaintiff J.B. i s 15 years o ld. H e i s in t he e ighth g rade. P laintiff J .B. i s no t receiving, and has not received, the rehabilitative services his detention is supposed to provide as a child in the Florida juvenile justice system. Additionally, J.B.’s education has been interrupted by hi s de tention i n t he P olk C ounty J ail, w here he doe s not r eceive a ppropriate educational services. Staff ha ve t aunted J .B. w ith foul l anguage and ge stures and us ed hur tful a nd demeaning terms, including calling J.B. a “fat head.” They have placed him on lockdown in his cell for no apparent reason and have repeatedly threatened to do so on other occasions. 35. Plaintiff F.J.P. is 17 years old. He is a senior in high school. He intends to pursue a c ollege e ducation. Despite th e fact t hat h e i s s erving a j uvenile s entence at t he j ail f or a probation violation, he is not receiving, and has not received, the rehabilitative services to which he i s en titled u nder f ederal l aw. Instead, he s pends hi s da ys enduring a punitive e nvironment where he has witnessed staff mace youth and been threatened with lockdown or isolation. Staff have used degrading language towards F.J.P. and foul language around him and other children. Additionally, Plaintiff F.J.P.’s education has been interrupted by his detention in the Polk County Jail, where he does not receive appropriate educational services. 36. Plaintiff J.D. is 17 years old. H e is a junior in high school. Plaintiff J.D. is not receiving, and h as not received, the r ehabilitative services to which he is entitled under federal law. Instead, he spends his days enduring a punitive environment
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37. On March 5, 2012, guards sprayed Plaintiff J.D. in the face with a chemical agent after t hey ordered hi m t o g et d ressed for s chool m ore qui ckly. After m acing hi m, t he guards forced him to the ground. One of the guards twisted his arm behind him; another had his knee in J.D.’s back. One guard stated, “We’re going to break it [your arm], b**ch.” This occurred in view of most of the children on t he unit, who were watching from either directly outside J.D.’s cell door or downstairs, where they had a clear view of the room.
38. Plaintiff J .D. experienced burning in his e yes, in his mouth and on his skin as a result of being sprayed with the chemical agents.
39. The guards forced J .D. dow n t he s tairs. Once outside of t he dor m area, t hey forced him to the ground again. J.D. was crying. J.D. was put in the cage for approximately 90 minutes. He was not allowed to wash his face or shower during that time. As a r esult, during this time he experienced extreme discomfort and pain.
40. J.D. c ontinues t o f eel u nsafe a nd i n f ear t hat t his w ill reoccur. F ollowing t he incident, a guard warned the other children to behave, implying that if they failed to do so, they would suffer J.D’s fate.
41. J.D. w as pl aced on l ockdown f or t he r est of t he da y. His l unch t ray w as put i n front of his door, and a guard told him that he could eat it if he could access it through the locked door. This was of course impossible, so J.D. went without lunch. He was similarly denied access to his dinner tray. During the entire day on lockdown, J.D. was only able to eat a snack that he was able to slide through the crack between the locked door and the floor. He did not eat again until breakfast the next day.
EXHAUSTION 42. Plaintiffs have exhausted all available administrative remedies.
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CAUSES OF ACTION Count 1
Eighth and Fourteenth Amendment Violation: Failure to Provide Rehabilitative Services
43. Defendant’s pol icies a nd pr actices of f ailing t o pr ovide Plaintiffs, a nd a ll th ose similarly situated, with rehabilitative services violate the Eighth and Fourteenth Amendments.
Count 2 Eighth and Fourteenth Amendment Violation: Dangerously Violent Conditions of Confinement 44. Defendant’s p olicies and p ractices o f failing to p rotect Plaintiffs, a nd a ll th ose similarly situated, from harm, and treating children with unlawful force and subjecting them to unreasonable restraints, create dangerously violent conditions of confinement in violation of the Eighth and Fourteenth Amendments.
PRAYER FOR RELIEF WHEREFORE, the Plaintiffs pray that this Honorable Court grant the following relief:
a. Assume jurisdiction over this matter; b. Certify t his m atter as a class action pursuant t o Fed. R . C iv. P . 23(a) and (b)(2) consisting of a class of all individuals under the jurisdiction of the juvenile court who are or who will be incarcerated at the Polk County Jail; c. Declare that the acts and omissions of Defendant violate the U.S. Constitution; d. Enter a preliminary and permanent injunction requiring the Defendant, his agents, employees an d al l p ersons act ing i n concert w ith D efendant t o ceas e t heir unconstitutional and unlawful practices; e. Award Plaintiffs reasonable costs and attorney’s fees under 42 U.S.C. § 1988; and
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f. Grant Plaintiffs such other relief as this Court deems just.

Dated: March 15, 2012

Respectfully submitted,

/s/ Miriam Haskell Miriam Haskell Fla. Bar. No. 69033 Southern Poverty Law Center P.O. Box 370037 Miami, FL 33137 Tel: (786) 347-2056 Fax: (786) 237-2949 miriam.haskell@splcenter.org
Tania Galloni Fla. Bar. No. 619221 Southern Poverty Law Center P.O. Box 370037 Miami, FL 33137 Tel: (786) 347-2056 Fax: (786) 237-2949 tania.galloni@splcenter.org

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 Case 8:12-cv-00568-SDM-MAP Document 197 Filed 11/09/12 Page 1 of 33 PageID 5221

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION

LISA JOBE, as guardian and on behalf of )

K.J., a minor; AMY GAGE, as guardian

)

and on behalf of B.G., a minor; CRYSTAL )

CUYLER, as guardian and on behalf of

)

D.M., a minor; FRANKY JEAN-PIERRE; )

JEREMIAH DAVIS; MICHELLE MINOR, )

as guardian and on behalf of J.P., a minor, )

NIKEYTA MATTHEWS, as guardian and )

on behalf of K.G., a minor; and TERRICA )

HALL, as guardian and on behalf of T.H., )

a minor; on behalf of themselves and all

)

others similarly situated,

)

)

Plaintiffs,

)

)

v.

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)

GRADY JUDD, Polk County Sheriff, in

)

his official capacity; and CORIZON

)

HEALTH, INC.,

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Defendants.

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_____________________________________ )

Case No. 8:12-cv-00568-SDM-MAP

THIRD AMENDED COMPLAINT – INJUNCTIVE RELIEF SOUGHT

1. This i s a class a ction f iled on be half of t he c hildren i mprisoned at the C entral

County J ail in Ba rtow, F lorida (“ Polk Count y J ail”), to protect t hem f rom a busive a nd

unconstitutional conditions of confinement. The vast majority of children incarcerated at the Polk

County Jail have been accused of non-violent offenses. They are held at the jail while they await

their court dates.

2. Recently, as a cost savings measure, Polk County officials opted to cease housing all children in a designated juvenile detention center and transferred custody of these children to

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Sheriff Grady Judd. In the Fall of 2011, Sheriff Judd moved all children in his custody to the Polk County Jail, which primarily houses adults.
3. According to both the U.S. Centers for Disease Control and Prevention and the Office of Juvenile Justice and Delinquency Prevention, youth who are held in adult facilities are approximately 34 percent more likely than youth in juvenile facilities to be re-arrested for another crime.1 Ignoring the adverse public safety consequences of housing children in an adult jail, Sheriff Grady Judd trumpets the tax dollars he saves2 by subjecting children to violence, abuse and violations of their fundamental constitutional rights. Unfortunately, any short-term savings Polk County generates by housing children—some as young as eight years old—in the adult jail is offset by the tremendous cost borne by the children who languish in Sheriff Grady Judd’s custody.
4. Defendant Judd exposes the children incarcerated in the Polk County Jail to dangerous conditions. Rather than provide engaged staff to supervise children, Defendant Judd relies on cameras and remote supervision, frequently leaving children unattended. Defendant Judd’s constitutionally deficient staffing policies and practices allow fights regularly to occur. As a result, youth live with a constant threat of violence. Several youth have sustained injuries that have required medical attention. When children are injured, Defendant Judd routinely fails even to notify their parents. Because Defendant Judd refuses to protect children from harm, in
1 Centers for Disease Control and Prevention, Effects on Violence of Laws and Policies Facilitating the Transfer of Youth from the Juvenile to the Adult Justice System: A Report on Recommendations of the Task Force on Community Preventive Services. MMWR 2007; 56 No. RR-9 (2007); Richard E. Redding, Juvenile Transfer Laws: An Effective Deterrent to Delinquency?, Washington, D.C.: U.S. Department of Justice, Office of Justice Programs, Office of Juvenile Justice and Delinquency Prevention (2010), https://www.ncjrs.gov/pdffiles1/ojjdp/220595.pdf. 2 See Press Release, Polk County Sheriff’s Office, Polk County Sheriff’s Office on pace to save between $1.6 to $2.4 million through operation of the PCSO Juvenile Detention Facility compared to Department of Juvenile Justice cost (available at http://www.polksheriff.org/NewsRoom/News%20Releases/Pages/02-21-2012.aspx (last accessed March 20, 2012)).
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order to protect themselves, some youth stay confined to a cell for 23 hours a day—deprived of regular human contact, educational services and recreation.
5. When Sheriff Judd’s employees decide to pay attention to the children in their custody, it is too often for the sole purpose of meting out abuse. Polk County Jail guards employ a deliberately cruel use of chemical restraints (also known as mace or pepper spray). Guards frequently spray children in the face with a substance that causes an excruciating burning sensation in the eyes and on the skin, and restricts the ability to breath. Guards are known to subject children to this punishment for minor infractions such as singing, talking back or getting dressed too slowly.
6. Polk County Jail staff frequently curse at the children in their care, including by using the racial slur “n*gger” and telling children that they do not give a f*ck about them. Staff have referred to the girls housed at the Polk County Jail as “little b*tches.”
7. The United States Department of Justice has concluded that children housed in adult jails are 36 times more likely to commit suicide than children housed in a juvenile detention facility.3 Like many adult facilities that house children, the Polk County Jail responds to children who manifest an intent to harm themselves with cruelty and deliberate indifference. Sheriff Grady Judd’s employees force children who need suicide protections to strip naked in view of their peers and then wear a “suicide suit” a short, sleeveless garment that leaves children’s bodies exposed. These children are then placed in the “cage”—a kennel-like structure that is empty with the exception of a hard, wooden bench. These children are deprived of adequate mental health care and are prohibited from participating in education, recreation or from communicating with their families.
3 McGowan, A., Hahn, R., et.al., Effects on Violence and Laws and Policies Facilitating the Transfer of Juveniles from the Juvenile Justice System to the Adult Justice System: A Systematic Review. 32 AMERICAN JOURNAL OF PREVENTATIVE MEDICINE, No.4 Supplement, 2007 at S7-S28.
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8. In 2011, the Florida Legislature passed Senate Bill 2112 (SB 2112), a law that for the first time authorized Counties to house children facing juvenile charges in county jails rather than in the custody of the Florida Department of Juvenile Justice (DJJ). Polk County Officials made the decision to expand the number of children in Sheriff Judd’s custody pursuant to this law.
9. Polk County is the only county in Florida to have taken over the detention of preadjudicated juveniles under jail standards based on an adult correctional model rather than the protective juvenile justice standards developed over the years by professionals with expertise working with children.
10. Defendant Judd has boasted that his objective in incarcerating these children at the jail is to save the county large sums of money. Defendant Judd’s cost-cutting measures, however, have come at the expense of the children’s safety and well-being. Today, all children who are incarcerated while pending the resolution of charges against them in Polk County, whether charged as juveniles or adults, are jailed at the Polk County Jail.
11. All children in Sheriff Grady Judd’s custody are deprived of the education, individualized treatment and rehabilitative services that are reasonably calculated to help youth make positive life decisions once they are released from custody. Unless children are protected from these abuses and removed from Sheriff Judd’s custody, they will likely cycle in and out of his facilities—creating a public safety crisis that exposes Polk County taxpayers to tremendous legal liability.
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12. Plaintiffs K.J., B.G., D.M., Jeremiah Davis,4 Franky Jean-Pierre,5 J.P., K.G., and T.H. are or were children incarcerated at the Polk County Jail who seek injunctive and declaratory relief on behalf of themselves and all other similarly situated.
JURISDICTION 13. This action arises under the Eighth and Fourteenth Amendments to the United States Constitution and 42 U.S.C. § 1983. This Court has jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343(a)(3).
VENUE 14. Venue is proper in this Court under 28 U.S.C. § 1391(b)(2) because “a substantial part of the events or omissions giving rise to the claim[s] occurred” in this district. This Court is authorized to grant declaratory relief under 28 U.S.C. §§ 2201 and 2202, and injunctive relief pursuant to Rule 65 of the Federal Rules of Civil Procedure.
PARTIES 15. Plaintiffs are children who are or were incarcerated at the Polk County Jail at the time of filing of this action and who are subject to conditions of confinement that violate their rights under the U.S. Constitution. 16. At the time of filing, Plaintiff K.J. was a 15 year-old boy incarcerated at the Polk County Jail awaiting sentencing. 17. At the time of filing, Plaintiff B.G. was a 17 year-old both incarcerated at the Polk County Jail pending resolution of the charges against him.
4 Since the filing of this action, Plaintiff J.D. has reached the age of majority and has consented to appearing in his own name. 5 Since the filing of this action, Plaintiff F.J.P. has reached the age of majority and has consented to appearing in his own name. He remains subject to the jurisdiction of the juvenile court.
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18. At the time of filing, Plaintiff D.M. was a 16 year-old boy incarcerated at the Polk County Jail pending resolution of the charges against him.
19. At the time of filing, Plaintiff Jeremiah Davis was a 17 year-old boy incarcerated at the Polk County Jail pending resolution of the charges against him.
20. At the time of filing, Plaintiff Franky Jean-Pierre was a 17 year-old boy incarcerated at the Polk County Jail for a juvenile probation violation.
21. At the time of filing, Plaintiff J.P. was a 17 year-old boy incarcerated at the Polk County Jail pending resolution of the charges against him.
22. At the time of filing, Plaintiff K.G. was a 16 year-old girl incarcerated at the Polk County Jail pending resolution of the charges against her.
23. At the time of this filing, Plaintiff T.H. is a 15 year-old boy incarcerated at the Polk County Jail pending resolution of the charges against him.
24. Defendant SHERIFF GRADY JUDD is the duly elected Sheriff of Polk County, Florida. As Sheriff, Defendant Judd oversees law enforcement in the county. Defendant is responsible for the administration and every day operation of the Polk County Jail. Defendant is responsible for ensuring that the Polk County Jail operates in compliance with the laws of the State of Florida and the United States Constitution. He is the final decision maker for the Polk County Jail. Defendant Judd is sued in his official capacity.
25. Defendant CORIZON HEALTH, INC. is a private provider of medical services in correctional settings. The Polk County Sheriff’s Office has contracted with Defendant Corizon Health to provide medical and mental health services to the people incarcerated at the Polk County Jail, including the roughly 70 children detained there at any one time whether charged as juveniles or adults.
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CLASS ACTION ALLEGATIONS 26. The named Plaintiffs bring this suit on their own behalf and on behalf of all children who are, or will in the future be, incarcerated at the Polk County Jail. 27. Plaintiffs seek to certify a class defined as: All individuals who are under the age of 18, and all individuals who are under the jurisdiction of the juvenile court regardless of age, who are or who will in the future be incarcerated at the Polk County Jail. 28. Plaintiffs seek to certify a subclass defined as: All individuals under the sole jurisdiction of the juvenile court who are or who will in the future be incarcerated at the Polk County Jail. 29. Plaintiffs seek to certify a second subclass defined as: All individuals who are under the age of 18, and all individuals who are under the jurisdiction of the juvenile court regardless of age, who suffer from mental illness and who are or who will in the future be incarcerated at the Polk County Jail. 30. This suit is properly maintainable as a class action pursuant to Federal Rules of Civil Procedure 23(a) and (b)(2). 31. The class is so numerous that joinder of all members is impractical. Upon information and belief, Polk County Jail currently houses approximately 70 to 80 children, including approximately 30-40 children charged as juveniles. Upon information and belief, Polk County Jail at any one time houses approximately 35 children who suffer from mental illness. Children are incarcerated at the jail for varying lengths of time, ranging from days to months, and the population changes on a daily basis. 32. The class and subclasses also include future members whose names are not known, as the facility regularly admits new children who are members of the class.
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33. There are questions of law and fact common to all class members, including but not limited to whether conditions of confinement of children incarcerated at the Polk County Jail violate their rights under the Eighth and Fourteenth Amendments to the U.S. Constitution.
34. Because the policies, practices and customs challenged in this complaint apply with equal force to the named Plaintiffs and the other members of the class, the claims of the named Plaintiffs are typical of the class in general.
35. The named Plaintiffs will fairly and adequately represent the interests of the class. They possess a strong personal interest in the subject matter of the lawsuit and are represented by experienced counsel with expertise in class action prison conditions litigation in federal court. Counsel have the legal knowledge and resources to fairly and adequately represent the interests of all class members in this action.
36. Defendant Judd has acted or refused to act on grounds generally applicable to the class: his policies, practices, acts and omissions have affected all class and subclass members. Accordingly, final injunctive and declaratory relief is appropriate to the class as a whole.
37. Defendant Corizon Health has acted or refused to act on grounds generally applicable to the second subclass: its policies, practices, acts and omissions have affected all subclass members. Accordingly, final injunctive and declaratory relief is appropriate to the subclass as a whole.
STATEMENT OF FACTS BACKGROUND—THE POLK COUNTY JAIL 38. The Polk County Jail was built nearly 30 years ago to house adults. Its capacity has been expanded over the years to house up to 800 individuals. Today, the vast majority of the jail’s population continues to be adults.
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39. Upon information and belief, Polk County Jail currently houses approximately 70 to 80 children. Although youth are kept in separate dorms, they are housed in a building that also houses adults.
40. In August 2011, the Florida Sheriff’s Association (FSA), of which Defendant Polk County Sheriff Grady Judd was and is an officer, adopted new standards governing the treatment of children held in jails. These were modeled on the treatment of incarcerated adults and were adopted over the objection of child advocates. Among other objectionable provisions, the FSA standards permit the use of chemical agents and tasers on children, something strictly prohibited by juvenile justice standards.
41. In September 2011, Polk County Sheriff Grady Judd began housing children charged as adults at the Polk County Jail. On or about October 1, 2011, Sheriff Judd transferred all pre-adjudicated juvenile detainees from the Department of Juvenile Justice detention facility to the Polk County Jail. Since that time, Defendant Judd has incarcerated children as young as eight years old at the Polk County Jail pending resolution of juvenile charges against them.
UNCONSTITUTIONAL CONDITIONS OF CONFINEMENT Failure to Provide Rehabilitative Services to Juveniles
42. Florida’s juvenile justice system is charged with administering a system of “prevention, early intervention, control, and rehabilitative treatment of delinquent behavior.” Fla. Stat. § 985.601(1) (2011). The express purpose of Florida’s juvenile justice system is rehabilitation, not punishment. For this reason, the State of Florida is not required to afford children with the full panoply of due process safeguards that are provided in adult criminal proceedings. For example, there is no right to a jury trial for children in the juvenile justice system, nor do children have a right to bail. Where, as in Florida, the purpose of detaining and
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imprisoning children is treatment and rehabilitation, due process requires that the conditions and programs in facilities that house children must be reasonably related to that purpose.
43. Although the Florida juvenile justice system is premised on providing rehabilitation to children charged with delinquency, Defendant Judd has publicly described these children as “incorrigible”— which means incapable of correction—and treats them punitively in accordance with that attitude .
44. As described throughout this complaint, Defendant Judd has a policy and practice of subjecting children to punitive, adult correctional conditions in violation of the U.S. Constitution.
45. Defendant Judd has a policy and practice of depriving children in his custody of developmentally appropriate interventions and rehabilitative services that the juvenile justice system is intended to provide. Instead, Polk County Jail staff routinely treat children punitively, using violence, taunts, and threats.
46. Polk County guards routinely use foul language with the children, saying things such as “shut the f*ck up” when a child complains, “f*ck you, I ain’t giving you sh*t or “I don’t give a flying f*ck what you need” when a child makes a request, and have even referred to African-American children as “n*ggers,” and girls on the girls’ unit as “little b*tches.”
47. Despite state and federal requirements to provide education, children are offered inadequate educational services. Rather than provide an appropriate education, Defendant Judd lumps children of different ages and grades together in a makeshift classroom at the jail, without any regard to a child’s individual learning needs.
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48. Children are often forced to eat in their cells, where their toilets are located. These toilets are rarely cleaned; to clean the toilet, the children must use the shower soap they receive for their personal hygiene.
49. The children are sometimes deprived of outdoor recreation and, depending on the whim of the guards, may be confined to their living unit for days at a time.
50. Despite the rehabilitative purpose for which these children are detained, Defendant Judd has a pattern and practice of denying them rehabilitative services, such as counseling, treatment, and developmentally appropriate activities that are reasonably related to the purpose of their detention.
Failure to Protect from Harm 51. Rather than provide engaged staff to supervise children, Defendant Judd relies on cameras and remote supervision, frequently leaving children unattended at the Polk County Jail. 52. Defendant Judd implements a policy and practice of 1) failing to provide adequate staffing and staff training; and 2) failing to adequately supervise and protect children from harm. 53. Defendant Judd fails to protect the youth from harm by refusing to provide appropriate supervision. As a result, children predictably fight among themselves—creating a substantial risk of serious harm to each other. Defendant Judd allows these fights to occur and does nothing to prevent the conflict that is inevitable when multiple teenagers are confined in close quarters. Staff do nothing to prevent these fights, but instead respond punitively once the fights are over by spraying dangerous chemical agents that cause burning, choking, difficulty breathing and vomiting. 54. Rather than maintain a professional adult presence where children are housed, Polk County Jail guards monitor children through the use of remote cameras that capture only
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parts of the jail. As a result, children engage in fights that could have been avoided had the jail maintained an adult presence or adequate supervision of the areas where children are incarcerated. Defendant Judd knows that these fights do, and will, occur as a result of inadequate training and staffing, yet disregards the substantial risk these failures pose to children’s safety.
55. Defendant Judd’s pattern and practice of failing to provide adequate adult supervision and failing to protect youth from harm continues to endanger the lives and safety of all children detained at the jail.
56. Since October 2011, Defendant Judd’s failure to provide adequate training and supervision has resulted in numerous, preventable fights among children. Defendant Judd knows that incarcerated children engage in “test of heart” fights to challenge newcomers, yet do nothing to prevent these fights from occurring. Defendant Judd knows that older children may demand food trays from younger, more vulnerable children, who risk physical injury if they refuse. This is known throughout the facility as “payroll.” Despite the fact that this practice is widely known, Defendant Judd has failed to protect youth from victimization.
57. As recently as March 1, 2012, the Sheriff’s Office reported that three youths at the Polk County jail have been charged with attempted felony murder for the “test of heart” beating and torture of T.W., another youth incarcerated at the jail, over a period of several hours, despite guards’ knowledge and duty to protect all youth at the jail and prevent such incidents from happening on their watch.6

6

Pleasant, Matthew, Questions Surround Teen Jail Beating, The Ledger (March 1, 2012) (available

at http://www.theledger.com/article/20120301/NEWS/120309935?p=2&tc=pg (last accessed March 20, 2012)).

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58. These incidents reflect Defendant Judd’s systemic failure to implement the necessary training, staffing patterns and supervision in order to protect children from harm.
Unlawful Use of Dangerous Chemical Restraints 59. Defendant Judd promulgates a policy and practice of permitting Polk County Jail guards to carry dangerous chemical agents at all times on their person, including when guards are interacting with incarcerated children, creating the substantial risk of serious injury to children. 60. Guards routinely use these dangerous chemical agents to punish children—not to maintain a secure environment or prevent harm. Defendant Judd allows his employees to spray children with chemicals that cause an excruciating burning sensation and difficulty breathing as punishment for perceived minor rule violations, including for failing to follow orders that do not implicate facility security, and for engaging in behavior guards deem annoying like singing or not moving quickly enough to get dressed. 61. When there are fights, guards indiscriminately spray children in the area with chemical agents—including children not involved in the fight, children who have stopped fighting, children who have already been disabled, and children the Sheriff’s Office has described as the victim of the fight. 62. Defendant Judd authorizes and permits guards’ punitive use of chemical agents in these situations. There is no security, rehabilitative or penological justification for Defendant Judd’s use of chemical agents. 63. Defendant Judd’s policies and practices constitute a continuing threat of irreparable injury to the named Plaintiffs, and all children similarly situated. 64. Defendant Judd has claimed publicly that the use of chemical agents against children at the Polk County Jail is “rare.” In fact, since October 2011, Sheriff’s guards have used
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pepper spray punitively against several children charged as juveniles, including S.R., A.M., M.C.1, M.C.2, D.J., D.G., Jeremiah Davis, and Plaintiffs K.J. and J.P., and against several children charged as adults, including L.M., D.M., S.W., J.C., M.H., and Plaintiffs K.J. and B.G.
65. In October 2011, for example, S.W. was among several children who were pepper sprayed following a fight, even though S.W. was not among those fighting. After S.W. was disabled by the chemical agent, which made his eyes burn and took his breath away, he tried to crawl on the floor to the shower to wash it off, but a guard sprayed him again.
66. In January 2012, guards pepper sprayed six children following a fight, including Plaintiff J.P., who the Sheriff’s Office has described as the victim of the fight.
67. In January 2012, D.D., one of the incarcerated girls, witnessed guards pepper spray a mentally ill girl on suicide watch for sitting on a table instead of on her bed and refusing to move to her bed when told, leaving her crying and screaming in pain.
68. In March 2012, M.H. was pepper sprayed after manifesting an intent to hang himself by his sheet.
69. Children at the jail, including B.G., Jeremiah Davis, D.G. and K.J., have been pepper sprayed simply for failing to follow an order such as to move from one area to another or to cease singing.
Punitive Isolation and Suicide Prevention Policies 70. Defendant Judd has a policy and practice of subjecting children who are placed on suicide watch to punitive isolation, forced idleness and sensory deprivation, inflicting wanton and unnecessary discomfort, pain and humiliation. Once children are placed on suicide watch, they are forced to strip naked in front of their peers and then wear a “suicide suit” which is a short, sleeveless garment that leaves children’s bodies exposed. Children placed on suicide
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watch are then placed in the “cage”—a kennel-like structure that is empty with the exception of a hard, wooden bench. Children are confined to this cage for 23 or 24 hours a day, denied physical exercise or recreation, and provided with limited opportunities to care for their personal hygiene needs. Children receive little to no human interaction and are not allowed to receive mail, make phone calls, have visitation, or receive any of their property, including canteen food, pictures, eyeglasses, paper, or pens.
71. These suicide prevention policies and practices are so cruel and abusive that staff have placed non-suicidal youth on “suicide watch” in order to inflict punishment on them. Indeed, the kennel-like cages are used both for children who have expressed suicidal ideation and for children who are alleged to have broken facility rules.
72. Once a child is designated by a staff member as suicidal, he must remain in isolation until he is evaluated by a mental health professional who can determine whether the child remains a suicide risk. However, children who are on suicide watch do not receive any mental health services, treatment or interventions. Defendant Judd exhibits deliberate indifference to the serious mental health needs of the youth who are placed on suicide watch.
73. Defendant Judd enforces isolation and suicide prevention policies that are not calculated to stop people from harming themselves, but instead inflict cruelty and assault the human dignity of children.
Deliberate Indifference to Children with Mental Illness 74. According to national research, as many as 50 percent or more of children detained in the juvenile justice system suffer from a mental disorder. Mental illness is similarly prevalent among children tried as adults.
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75. Children who suffer from mental illness are regularly among the population incarcerated at the Polk County Jail.
76. Medical staff and guards at the Polk County Jail routinely delay or ignore the known medical needs of these children, demonstrating deliberate indifference to the children’s mental health needs and putting them at unnecessary risk of substantial harm.
77. Children with mental illness are routinely subjected to delays in receiving needed medication and treatment. They are regularly not seen by a mental health professional in a timely manner, if at all. Staff conduct grossly inadequate assessments.
78. Medication, when provided, is frequently dispensed in a manner that is contraindicated, including by staff failing to provide the appropriate dosage, allowing medication to run out, failing to provide mechanisms to promptly make up for missed doses, and crushing or dissolving medications contrary to the product label.
79. As children’s brains are still developing, medical staff are aware that children are particularly vulnerable to harm from inappropriate variations in psychiatric medication, inappropriate dosage, withdrawal, and contraindicated provision of medication.
80. Children with mental illness are also particularly at risk of harm in light of their limited ability to advocate for themselves.
81. Defendants’ constitutionally deficient response to children with mental illness places children detained at the Polk County Jail at particular risk of harm given the increased risk of suicide faced by children in adult jails.
82. Defendants’ actions and omissions constitute a systemic failure to provide constitutionally adequate mental health services to children.
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83. For example, D.D., a 14 year old girl who has been incarcerated at the Polk County Jail five times, has only irregularly been provided with needed medication on several occasions, despite a known history of serious mental illness.
84. B.G.2,7 a 17 year old boy presently incarcerated at the Polk County Jail, did not receive any mental health medication from the time he entered the jail in February 2012 until late April 2012, despite reporting to staff that he was prescribed the medication before entering the jail.
85. C.D., a 14 year old boy presently incarcerated at the Polk County Jail who suffers from known mental illness is presently not receiving all necessary medications to treat his condition, despite advising staff that he needed them.
86. J.N., a 16-year-old boy presently incarcerated at the Polk County Jail, has not received needed mental health treatment despite advising staff of his serious mental health needs. One guard at the Polk County Jail told J.N., “this is a jail, not a medical center.”
87. As a result of dangerously inadequate mental health treatment, children with mental illness who are detained at the Polk County Jail are at unreasonable risk of self-harm, acting out, suicidal ideation, and unnecessary pain and suffering. These children are also at unnecessary risk of further deterioration of their psychiatric condition.
88. Even though the vast majority of children with mental illness detained at the Polk County Jail are held pre-trial, Defendants subject them to punitive conditions of confinement, further exacerbating the symptoms of their mental illness.
89. Defendants’ policies and practices constitute deliberate indifference to children’s mental health.
7 This is to distinguish this child from named Plaintiff B.G.
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Harmful Use of Isolation Without Due Process 90. In addition to the unconstitutional use of isolation with regard to children on suicide watch, Defendant Grady Judd has a policy and practice of imposing isolation on children in a disproportionately punitive manner, with deliberate indifference to the substantial risk of harm, and without due process. All children detained at the Polk County Jail are at risk of being unconstitutionally placed in harmful isolation. 91. Defendant Grady Judd employs isolation in various forms, including four rooms specifically designated as “isolation rooms” or “iso,” and by using “lockdown” to place children in isolation in regular cells, where they are forced to remain alone in their cells for as many as 23 hours a day for days or weeks at a time. 92. Defendant Grady Judd places children in isolation indefinitely, without advising children of how long they will be left there. 93. When children request to be taken off isolation, Defendant Grady Judd’s agents respond that only the guard who placed them on isolation can remove them, regardless of when that guard may be working next and without legitimate justification for the delay. 94. Defendant Grady Judd fails to provide children placed on isolation with adequate notice of the reason for imposing isolation or an opportunity to challenge their placement to an impartial entity and present witnesses on their behalf. 95. The area designated as “isolation” for youth at the Polk County Jail is comprised of four small rooms made of concrete walls, with a heavy metal door, and no access to natural light. The rooms are bare, including only room to sleep on the floor and a toilet and sink. A common shower and a phone are located outside the cells, but children are permitted access to
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these at most for a short interval at night. The isolation area is separate and apart from the living dorm, and closed off by a heavy metal door.
96. No guard is routinely stationed in the designated isolation area when children are housed there. If a child in isolation needs to communicate with a guard, he must yell through the food flap opening in the door and hope that someone hears. Although guards are supposed to perform rounds, these are inconsistent and not assigned to any particular guard.
97. There is no emergency call button in the isolation cells. 98. There are no cameras looking into the isolation cells. The only camera is located in the hallway in front of the cells, and shows no view of the inside of the cells. 99. Children in isolation are often deprived access to visitation, recreation, education and the opportunity to interact with other children. 100. Children in isolation are not permitted to bring their minimal belongings with them, and their requests for paper, pencils or reading materials are often denied. Children eat all meals alone in their cells. 101. Defendant Grady Judd’s placement of children in isolation causes them anxiety, fear, humiliation, torment, suicidal ideations and mental anguish. Defendant has placed children in isolation for days, weeks, and even months. 102. Defendant Corizon is aware of Defendant Grady Judd’s placement of children in isolation but fails to have a policy or practice to ensure that children are not exposed to serious risk of physical and psychological harm from placement there. Defendant Corizon fails to provide necessary mental health services to ensure the psychological and physical integrity of children exposed to harmful isolation. Defendant Corizon’s actions constitute deliberate indifference to a serious risk of harm.
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103. While at the Polk County Jail, Plaintiff Franky Jean-Pierre was placed in an isolation cell when a guard asked a group of children where a deck of cards had been placed, and Mr. Jean-Pierre said he did not know and smiled. The guard did not tell Mr. Jean-Pierre how long he would be left in isolation. Mr. Jean-Pierre was not given an opportunity to contest his placement there. He quickly began to suffer mental anguish and concern regarding whether he would ever be released.
104. Several other children have similarly been subjected to harmful isolation. They include B.G., K.J., D.M., and M.H., D.W., and another male youth, who were held in isolation rooms for several weeks, and two girls who were held in isolation rooms for several weeks.
105. Defendants’ policies and practices constitute cruel and unusual punishment, deliberate indifference to a substantial risk of harm, and deprivation of due process.
Plaintiffs’ Statement of Facts: Illustrative Incidents of Abusive Treatment Plaintiff B.G. – Inadequate Suicide Response, Prevention
106. On February 10, 2012, Plaintiff B.G. was placed in a “cage” for suicide watch after telling a nurse that he felt depressed. When questioned by the nurse as to why he felt depressed, B.G. told her it was because he had been incarcerated for so long. The nurse asked if he ever had suicidal thoughts. B.G. responded that sometimes he thought about what life would be like if he were not present. The nurse replied that she probably had no choice but to put B.G. on suicide watch, which meant moving him to the cage. B.G. was not offered any mental health counseling or services.
107. The cage is a box-like enclosure made with metal grates on all sides. It is empty, except for a narrow hard bench against one side.
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108. While in the cage, which is visible to other youth, B.G. was made to strip naked and put on a suicide gown, known in the jail as a “turtle suit.” The experience was humiliating and degrading.
109. B.G. was allowed nothing but a mat approximately one-inch thick. To use the bathroom, he had to ask a guard for permission and be transported to another area of the facility. He was not allowed to keep his eyeglasses, which he wears all the time.
110. B.G. remained in the cage until February 13, 2012. During this entire time, no medical personnel met with him. B.G. passed the time by singing to himself. Until another youth was placed in a nearby cage, he was not able to have contact with other children other than brief conversations as they walked by where he was caged. Guards brought his food to the cage and left it for him to eat alone. Plaintiff K.J. – Punitive Use of Suicide Watch
111. On February 12, 2012, Plaintiff K.J. was placed in a cage near B.G.’s cage, approximately 10 feet away, as punishment for engaging in horseplay. As K.J. was not in the cage for suicide watch, he was allowed to bring the mat from his room.
112. Upon being placed in the cage, K.J. began kicking the cage. A guard responded by entering the cage and pushing K.J. against the wall, placing his arm against K.J.’s neck.
113. Later in the evening, K.J. called out to B.G. in the other cage. K.J. asked B.G. why he was on suicide watch. Overhearing the conversation, the guard called out to K.J., jokingly asking him if he was suicidal, and stating that he must be, since he heard K.J. utter the word “suicide.” K.J. responded “no” many times, clearly stating he was not suicidal.
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114. Nevertheless, guards brought a second turtle suit and made K.J. change into it, requiring him to strip naked in front of the others. The experience was humiliating and degrading. The guards then moved K.J. into the “suicide” cage with B.G. Plaintiffs B.G. and K.J. – Punitive Use of Pepper Spray
115. The night of February 12, 2012, when all other children were in their cells, B.G. and K.J. were talking in the cage. They began singing.
116. The guards told B.G. and K.J. that they needed to stop singing and go to sleep. The boys, however, continued singing.
117. One of the guards went into the control room and returned with a large can of chemical agent. The guard placed the can on the desk nearby and sat down.
118. The guard again told B.G. and K.J. to go to sleep. They continued singing. 119. The guard then walked over to the cage where Plaintiffs B.G. and K.J. were being held, with the large can of chemical agent in his hand. He sprayed around all three sides of the cage (the fourth being a wall), at the point where the cage meets the floor. Then he doubled back and sprayed the same area a second time. 120. Plaintiff B.G. immediately felt pain in his eyes and on his skin from the burning of the chemical spray. Plaintiff K.J. immediately started choking, and felt his eyes and skin burn. Neither child could avoid or escape the chemical agent as they were trapped in the cage without even clothes with which to shield their faces. They tried to pull their turtle suits over their heads so they could breathe better. The bottoms of K.J.’s feet also burned because he had been forced to go barefoot in the cage. The chemical agent burned all over because his skin was exposed in the turtle suit. K.J. vomited from the chemicals.
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121. While the guard was spraying the cage, three other guards were nearby laughing. They did nothing to intervene.
122. Plaintiffs B.G. and K.J. were left in that cage for at least 10 minutes suffering painful symptoms from the chemical agent, and were eventually moved to the other cage. Plaintiffs B.G. and K.J., however, were not given any opportunity to shower, no opportunity to wash their faces, no new turtle suit and no new blanket. In the second cage, B.G. and K.J. could still smell the pepper spray and continued to feel some of its effects. They remained in that cage until the next morning.
123. Based on all of their experiences, Plaintiffs B.G. and K.J. continue to feel unsafe at the Polk County Jail and fear that they will continue to be similarly mistreated in the future. Plaintiff Jeremiah Davis – Failure to Provide Rehabilitation, Punitive Use of Chemical Agent and Other Restraints
124. Plaintiff Jeremiah Davis is 17 years old. He is a junior in high school. Mr. Davis is not receiving, and has not received, the rehabilitative services to which he is entitled under federal law while incarcerated at the Polk County Jail. Instead, he spends his days enduring a punitive environment.
125. On March 5, 2012, guards sprayed Mr. Davis in the face with a chemical agent after they ordered him to get dressed for school more quickly. After macing him, the guards forced him to the ground. One of the guards twisted his arm behind him; another had his knee in Mr. Davis’ back. One guard stated, “We’re going to break it [your arm], b*tch.” This occurred in view of most of the children on the unit, who were watching from either directly outside Mr. Davis’ cell door or downstairs, where they had a clear view of the room.
126. Mr. Davis experienced burning in his eyes, in his mouth and on his skin as a result of being sprayed with the chemical agents.
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127. The guards forced Mr. Davis down the stairs. Once outside of the dorm area, they forced him to the ground again. Mr. Davis was crying. Mr. Davis was put in the cage for approximately 90 minutes. He was not allowed to wash his face or shower during that time. As a result, during this time he experienced extreme discomfort and pain.
128. Following the incident, a guard warned the other children to behave, implying that if they failed to do so, they would suffer Mr. Davis’ fate.
129. Mr. Davis was placed on lockdown for the rest of the day. His lunch tray was put in front of his door, and a guard told him that he could eat it if he could access it through the locked door. This was of course impossible, so Mr. Davis went without lunch. He was similarly denied access to his dinner tray. During the entire day on lockdown, Mr. Davis was only able to eat a snack that he was able to slide through the crack between the locked door and the floor. He did not eat again until breakfast the next day.
130. Mr. Davis continues to feel unsafe and in fear that he will continue to be similarly mistreated in the future. Plaintiff D.M. – Punitive Use of Pepper Spray
131. On or about September 2011, Plaintiff D.M. was involved in a fight in his unit. Guards were just outside the dorm area where some children were fighting. When the guards decided to respond, they ran into the dorm and ordered all the children onto the ground. The children complied, and so were on the ground and no longer fighting. Despite the fight being over, guards sprayed all of the youth in the dorm with chemical restraints, including children who were not involved in the fight. Plaintiff D.M. was sprayed in the face.
132. In January 2012, Plaintiff D.M. was walking on his unit as a guard was passing out mail and a nurse was delivering medication. The guard said to D.M., “Do you hear me boy,
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talking to you?” and D.M. responded, “No.” The guard pulled D.M. by the shirt, and D.M. asked the guard why he was shoving him.
133. The guard shoved D.M. to the wall and sprayed him with a chemical agent. He then banged D.M.’s head against the wall, which caused a bump to develop there. D.M. was taken to the nurse, who asked him about the knot in his head. D.M. reported that the guard had shoved him into the wall. The guard said, “stop lying” and told the nurse that D.M. was banging his head against the window.
134. D.M. continues to feel unsafe and in fear that he will continue to be similarly mistreated in the future. Plaintiff J.P. – Failure to Protect from Harm, Punitive Use of Chemical Agents
135. In January 2012, Plaintiff J.P. arrived at the Polk County Jail. In his first week at the jail, he was subjected to a fight by a few other children in the day room on his unit. The fight did not last long, and J.P. did not suffer any injuries.
136. The fight ended when guards, who had been outside of the dorm area where the fight occurred, ran into the area. By the time the guards arrived, the fight was over.
137. Upon arrival, many of the children had already run to their room. J.P. and another youth were still in the dorm area. Guards arrived and immediately began spraying the children with chemical agents.
138. J.P., whom the Sheriff’s Office has described as the victim in the fight, was the first child to be sprayed with chemical agent. While he was being sprayed, he yelled for the guards to stop because he could not breathe. J.P. suffers from asthma. His mother had previously notified Polk County Jail of his condition.
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139. After being sprayed in the face with the chemical agent, J.P. was thrown into the cage. He was left there for at least 30 minutes before being allowed to wash his face. As J.P. screamed for help from the cage, a guard taunted him with, “Oh, you want some more?”
140. J.P. continues to feel unsafe and in fear that he will continue to be similarly mistreated in the future. Plaintiff Franky Jean-Pierre – Failure to Provide Rehabilitative Services
141. Plaintiff Franky Jean-Pierre is a senior in high school. He intends to pursue a college education. Despite the fact that he was serving a juvenile sentence at the jail for a probation violation, he was not receiving, and did not receive, the rehabilitative services to which he was entitled under federal law. Instead, he spent his days enduring a punitive environment where he witnessed staff pepper spray youth and was threatened with lockdown or isolation. Staff also used degrading language towards Mr. Jean-Pierre and foul language around him and other children. Additionally, Mr. Jean-Pierre’s education was interrupted by his detention in the Polk County Jail, where he did not receive appropriate educational services. Plaintiff K.G. – Constitutionally Deficient Response to Mental Illness
142. At the time of filing, Plaintiff K.G. was 16 years old. She had been detained at the Polk County jail since March 28, 2012, charged as a juvenile. This was the third time she has been detained at the Polk County Jail since October 2011.
143. On or about April 10, 2012, K.G. witnessed the pepper spraying of another girl, A.S., on her unit after the girl was in an argument with a guard. After A.S. was pepper sprayed, the other girls helped her get to the shower, and A.S. said that she wanted to kill herself.
144. K.G. has been diagnosed with borderline personality traits, mood disorder, posttraumatic stress disorder, attention deficit hyperactivity disorder, and oppositional defiance
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disorder. She has been on medication to treat her mental illness since age 11. K.G. also has a history of suicidal ideation.
145. Defendants have been aware of K.G.’s mental illness since about October 2011, when K.G. was first incarcerated at the Polk County Jail and reported to medical staff that she required mental health medication. Defendants were again made aware of K.G.’s mental illness in January 2012, during her second incarceration at the Polk County Jail, when K.G. reported to medical staff that she required four psychiatric medications for her illnesses.
146. Despite Defendants’ knowledge of K.G.’s serious mental health needs, Defendants failed to provide consistent treatment, delayed in providing medication, provided medication in a contraindicated manner, and otherwise subjected K.G. to unconstitutional conditions of confinement that only aggravate her condition.
147. On or about March 28, 2012, K.G. again reported her mental health needs to medical staff, and in the presence of a jail guard. On or about March 29, 2012, K.G. was placed on suicide watch or close observation; however she was never informed of the reasons and did not receive counseling or treatment while on suicide watch. When medical staff came to remove her from suicide watch on or about March 30, 2012, K.G. again reported that she had not received her medication. Although K.G. began receiving medication on or about March 31, 2012, the medication was crushed, despite medical contraindications warning against crushing the medication.
148. As a result of Defendants’ actions and omissions, K.G. has been subjected to unnecessary pain and suffering, including agitation, extreme drowsiness, and erratic behavior, and faces an unreasonable risk of substantial harm, including self-harm, suicidal ideation, and acting out against others.
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149. K.G. continues to feel unsafe as a result of Defendants’ actions and omissions and believes that she will continue to be similarly mistreated in the future. Plaintiff T.H. – Punitive Use of Isolation without Due Process
150. T.H. is a 15-year-old boy currently detained at the Polk County Jail. T.H. has been pepper sprayed, subjected to harmful, unconstitutional isolation, denied constitutionally mandated rehabilitative services and denied adequate mental health treatment.8
151. T.H. has been subjected to isolation on at least four occasions while detained at the Polk County Jail. On one occasion, T.H. was involved in a fight, pepper-sprayed, and then placed in isolation for several days. On another occasion, T.H. was placed in an isolation cell for alleged horseplay or fighting, and spent two nights in isolation.
152. In July 2012, T.H. was placed in isolation for part of two days in a room for alleged disciplinary reasons. On or around July 22, 2012, T.H. was placed in an isolation cell for what appeared to be approximately four hours. On or around the next day, T.H. was placed in an isolation cell again for what appeared to be approximately four hours. Both times, T.H. was not told how long he would be in isolation. T.H. was not provided with a mat to sit or lay on. A guard threatened that he could keep T.H. in there all night long.
153. While on isolation, T.H. was denied recreation and phone calls. T.H. was deprived of contact with other children. T.H. was not given an opportunity to challenge his isolation or informed how long he would be on isolation.
154. While on isolation, T.H. felt nervous, shaky, and like he was going crazy and hearing voices. He was afraid, and considered harming himself.
155. T.H. continues to feel unsafe as a result of Defendants’ actions and omissions and believes that he will continue to be similarly mistreated in the future.
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Lack of Training 156. Although Defendant Judd boasts of the hundreds of hours of “training” his guards have, Polk County guards lack any meaningful training and experience in working with children. Defendant Judd does not require guards to have any training or experience in working with children in order to be hired as guards in the youth units. As a result of Defendant Judd’s actions and omissions, the named Plaintiffs and all those similarly situated, are being subjected to unconstitutional and unsafe conditions of confinement.
EXHAUSTION 157. Plaintiffs have exhausted all available administrative remedies.
CAUSES OF ACTION Count 1
Eighth and Fourteenth Amendment Violation: Failure to Provide Rehabilitative Services
158. Defendant Judd’s policies and practices of failing to provide Plaintiffs T.H., Mr. Davis, Mr. Jean-Pierre and K.G., and all those similarly situated, with rehabilitative services violate the Eighth and Fourteenth Amendments.
Count 2 Eighth and Fourteenth Amendment Violation: Dangerously Violent Conditions of Confinement 159. Defendant Judd’s policies and practices of failing to protect all Plaintiffs, and all those similarly situated, from harm, and treating children with unlawful force and subjecting them to unreasonable restraints, create dangerously violent conditions of confinement in violation of the Eighth and Fourteenth Amendments.
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Count 3 Eighth and Fourteenth Amendment Violation: Punitive Isolation and Deliberate Indifference 160. Defendant Judd’s policies and practices of subjecting the Plaintiffs on suicide watch and all those similarly situated to punitive isolation without penological justification and Defendant Judd’s deliberate indifference to the mental health needs of children who are placed on suicide watch violate the Eighth and Fourteenth Amendments to the United States Constitution.
Count 4 Fourteenth Amendment Violation: Deliberate Indifference to Children’s Mental Illness 161. Defendants’ policies and practices of failing to provide K.G. and all others similarly situated with necessary mental health treatment, and subjecting them to punitive, harmful conditions of confinement, demonstrate a deliberate indifference to serious medical needs, subjecting children to unnecessary pain and suffering and placing these children at unnecessary risk of substantial harm violate the Fourteenth Amendment to the United States Constitution.
Count 5 Eighth and Fourteenth Amendment Violation:
Punitive Isolation Without Due Process 162. Defendants’ policies and practices of subjecting Plaintiffs and all those similarly situated to isolation in a disproportionately punitive manner, with deliberate indifference to the substantial risk of harm and without due process, violate the Eighth and Fourteenth Amendments to the United States Constitution.
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PRAYER FOR RELIEF

WHEREFORE, the Plaintiffs pray that this Honorable Court grant the following relief:

a. Assume jurisdiction over this matter;

b. Certify this matter as a class action pursuant to Fed. R. Civ. P. 23(a) and (b)(2)

consisting of a class of all individuals who are under the age of 18, and all individuals

who are under the jurisdiction of the juvenile court regardless of age, who are or who will

in the future be incarcerated at the Polk County Jail; a subclass of all individuals under

the sole jurisdiction of the juvenile court who are or who will in the future be incarcerated

at the Polk County Jail; and a subclass of all individuals who are under the age of 18, and

all individuals who are under the jurisdiction of the juvenile court regardless of age, who

suffer from mental illness and who are or who will in the future be incarcerated at the

Polk County Jail;

c. Declare that the acts and omissions of Defendants violate the U.S. Constitution;

d. Enter a preliminary and permanent injunction requiring the Defendants, their

agents, employees and all persons acting in concert with Defendants to cease their

unconstitutional and unlawful practices;

e. Award Plaintiffs reasonable costs and attorney’s fees under 42 U.S.C. § 1988; and

f. Grant Plaintiffs such other relief as this Court deems just.

Dated: November 9, 2012

Respectfully submitted,

By: /s/ Tania Galloni Tania Galloni Fla. Bar. No. 619221 Miriam Haskell Fla. Bar. No. 69033 SOUTHERN POVERTY LAW CENTER P.O. Box 370037 Miami, FL 33137

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Tel: (786) 347-2056 Fax: (786) 237-2949 tania.galloni@splcenter.org miriam.haskell@splcenter.org Donald J. Hayden Fla. Bar. No. 097136 Angela Vigil Fla. Bar No. 038627 Joseph J. Mamounas Fla. Bar No. 041517 BAKER & McKENZIE LLP Sabadell Financial Center 1111 Brickell Avenue, Suite 1700 Miami, FL 33131 Tel: (305) 789-8900 Fax: (305) 789-8953 donald.hayden@bakermckenzie.com angela.vigil@bakermckenzie.com joseph.mamounas@bakermckenzie.com Attorneys for Plaintiffs
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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on November 9, 2012, 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 via transmission of Notices of Electronic Filing

generated by CM/ECF.

/s/ Tania Galloni

.

Tania Galloni

 
 Case 8:12-cv-00568-SDM-MAP Document 332 Filed 03/27/13 Page 1 of 61 PageID 9025

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION

CHANDA HUGHES, et al.,

Plaintiffs,

v.

Case No. 8:12-cv-568-T-23MAP

GRADY JUDD, et al.,

Defendants. ___________________________/

REPORT AND RECOMMENDATION

Plaintiffs, legal guardians of juvenile detainees at the Polk County Jail, claim that

Sheriff Judd’s deliberate indifference to the violence at the institution and to the harm caused

them by his pattern and practice of using pepper spray violates their guarantees under the Eighth and Fourteenth Amendment.1 They now move for preliminary injunctive relief and

for class certification of their action under Fed. R. Civ. P. 23, matters the District Judge has referred to me for a report and recommendation.2 After consideration, I recommend that

1 Plaintiffs’ claim here is limited to Count Two of the operative complaint (Doc. 197). This count substantially mirrors the previous complaints (Docs. 3, 53). Defendant Corizon is not named in Count Two.
2 The District Judge referred these matters for a report and recommendation: Plaintiffs’ motion for preliminary injunction (Doc. 4) and brief in support (Doc. 117) and Defendant Judd’s opposition (Doc. 138); Plaintiffs’ motions to certify a class and two subclasses (Docs. 5, 35, 137) and related documents (Docs. 44, 134) and Defendants’ responses (Docs. 26, 48, 118, 145, 152). Additionally, I visited the facility, held a week-long hearing in September 2012 on the motion for preliminary injunction with extensive oral arguments in November 2012, and reviewed the many exhibits the parties have filed. Lastly, the parties unsuccessfully mediated their dispute on two occasions, including after oral argument on

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the District Judge deny the motion for preliminary injunction because the Plaintiffs have failed to satisfy the subjective component under the deliberate indifference test and grant the Plaintiffs’ motions for class certification.
I. The Juvenile Court movement began in this country at the end of the last century. From the juvenile court statute adopted in Illinois in 1899, the system has spread to every State in the Union, the District of Columbia, and Puerto Rico . . . . The early reformers were appalled by adult procedures and penalties, and by the fact that children could be given long prison sentences and mixed in jails with hardened criminals. They were profoundly convinced that society’s duty to the child could not be confined by the concept of justice alone. They believed that society’s role was not to ascertain whether the child was ‘guilty’ or ‘innocent,’ but ‘What is he, how has he become what he is, and what had best be done in his interest and in the interest of the state to save him from a downward career.’ Application of Gault, 387 U.S. 1, 14-15 (1967) (footnote omitted). The notion that juveniles and adults are different is obviously not a new one. Indeed, the Supreme Court in a recent line of cases has reaffirmed this concept by recognizing that children are constitutionally different from adults for sentencing purposes. Miller v. Alabama, 132 S. Ct. 2455, 2464 (2012); Graham v. Florida, ___ U.S. ___, 130 S.Ct. 2011, 2026 (2010); Roper v. Simmons, 543 U.S. 551, 569 (2005). These cases rely on three general differences between juveniles and adults. First, children have a “‘lack of maturity and an underdeveloped sense of responsibility’” that leads to “recklessness, impulsiveness, and heedless risk-taking.” Miller, 132 S.Ct. at 2464 (quoting Roper, 543 U.S. at 569). Second,
these motions. 2

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children are more vulnerable to “negative influences and outside pressures,” they have “limited contro[l] over their own environment” and are unable to “extricate themselves from horrific, crime-producing settings.” Id. (alteration in original) (citation and quotations omitted). Third, a child’s character is not as well formed as an adult’s; thus, his actions are “less likely to be evidence of irretrievabl[e] deprav[ity].” Id. (alteration in original) (quotations omitted). These decisions rest “not only on common sense – on what ‘any parent knows’ – but on science and social science as well.” Id. For example, in Graham, the Court noted that “developments in psychology and brain science continue to show fundamental differences between juvenile and adult minds” including in “parts of the brain involved in behavior control.” 130 S.Ct. at 2026. In Miller, the Court pointed out that the science supporting its decisions has become even stronger. 132 S.Ct. at 2464 n.5.
Forty-six years after Gault, this case arises in an unsettling context – juveniles housed in an adult-type jail awaiting trial in an adult court or an adjudication in a juvenile court and managed using a continuum of force policy designed primarily for adults. How these juveniles got there, who they are, and how the Sheriff of Polk County oversees their custody are the undercurrents of the relevant facts. I am mindful that the Sheriff’s task is difficult and his challenges complex. In the main, the juveniles in his charge have not responded to the behavioral modification efforts and interventions of family, schools, social agencies, and the courts. For these reasons, the overarching perspective a court applies when confronted with such constitutional challenges is to “refrain [during the course of its examination] from imposing our own theories of [juvenile justice] on the nation’s [juvenile detention facilities]
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and strive to inform our analysis with objective factors to the maximum extent possible.” Thomas v. Bryant, 614 F.3d 1288, 1307 (11th Cir. 2010). But even with this circumspect view, the objective observation is that the use of pepper spray in a juvenile detention or juvenile correctional facility is controversial and unsettled. On the use-of-force continuum, some consider pepper spray to be benign and less harmful than physical force. Others, however, urge it should be prohibited in the juvenile detention context, a position the Plaintiffs notably do not take in their operative complaint.
Given the length of this report, an organizational overview is prudent. Part II covers the basics of Florida’s juvenile system; the legislative move to allow counties to house juveniles in adult-type facilities; the differences regarding the use of pepper spray in detention facilities operated by under Florida’s Department of Juvenile Justice (“DJJ”) and those run by county or municipal jurisdictions; a sense of the jail’s layout and day-to-day operations as those matters impact the use of pepper spray; and lastly Sheriff Judd’s general orders governing the spray’s use. All these topics serve as background information pertinent to the referred motions (but weighted more to the preliminary injunction motion). Part III sets out the legal standards applicable the preliminary injunction question, and Part IV details my findings on that issue. Part V addresses the class certification issues, and lastly Part VI concludes with my recommendations.
II. A. Florida’s Scheme Florida’s juvenile justice scheme has twin aims: “to first protect the public from acts
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of delinquency” and to rehabilitate the juvenile. Fla. Stat. § 985.02(3). As for a juvenile’s detention, “[t]he Legislature intends that detention care, in addition to providing secure and safe custody, will promote the health and well-being of the children committed thereto and provide an environment that fosters their social, emotional, intellectual, and physical development.” Id. To balance these potentially competing interests – protecting the public and rehabilitating the juvenile – Florida poses rigorous checklists for deciding if a juvenile should be detained. Two groups of juveniles emerge from this process, direct file and preadjudicated. The direct file detainees are typically the oldest, most aggressive juveniles as they are charged with having committed serious, violent offenses. See Fla. Stat. § 985.557. This group comprises two types: discretionary and mandatory direct file juveniles. A juvenile, to be classified as a discretionary direct file, must be at least 14 at the time of his offense, and the offense must be one that is specified in Fla. Stat. § 985.557 (for example, robbery, sexual battery, aggravated battery, and murder). Id. A mandatory direct file juvenile is someone 16 or 17 who has already been adjudicated delinquent for a violent act or a use of a firearm and is charged with a second violent crime. Id. Mandatory waiver also occurs when it is the juvenile’s fourth felony act, one of which was violent or involved a firearm. Id.
As for a preadjudicated juvenile, at the time he is taken into custody until a formal detention hearing, his probation officer makes an initial decision as to whether he should be placed into secure detention care. Fla. Stat. § 985.25. The probation officer bases this decision on a risk assessment that analyzes whether the juvenile is a flight risk, whether there
5

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is a danger he will inflict bodily harm on others, has a history of committing offenses prior to adjudication, has committed contempt of court, or requests protection from imminent bodily harm. Fla. Stat. § 985.24. If the probation officer determines that detention is appropriate, a hearing must be held within 24 hours. Fla. Stat. § 985.255(3)(a). At this hearing, a judge decides whether the preadjudicated juvenile should continue to be detained. This determination is based on the child’s flight risk, whether the child is wanted in another jurisdiction, whether the child is charged with possessing or discharging a firearm on school property, and whether the child is charged with a capital felony, among other factors. Fla. Stat. § 985.255(1). But even when a juvenile meets the detention checklists, his or her incarceration is intended to be rehabilitative rather than punitive. See Fla. Stat. §§ 985.02, 985.601(3)(a).
The average length of a preadjudicated juvenile’s stay at the county jail is about 10 days, although this could extend to 30 days under the governing statute. See Fla. Stat. § 985.26(2).3 Detention care after adjudication is limited to 15 days. Fla. Stat. § 985.26(3). If the court grants a continuance beyond the period authorized in sections 2 and 3 above, the trial court is required to conduct a hearing at the end of each 72 hour period “to determine
3 Section 985.26(2) provides: “A child may not be held in secure, nonsecure, or home detention care under a special detention order for more than 21 days unless an adjudicatory hearing for the case has commenced in good faith by the court. However, upon good cause being shown that the nature of the charge requires additional time for the prosecution or defense of the case, the court may extend the length of detention for an additional 9 days if the child is charged with an offense that would be, if committed by an adult, a capital felony, a life felony, a felony of the first degree, or a felony of the second degree involving violence against any individual.”
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the need for continued detention of the child and the need for further continuance of proceedings for the child or the state.” Fla. Stat. § 985.26(4). See, e.g., R.N. v. State, 30 So. 3d 725, 726 (Fla. 4th DCA 2010) (stating that the trial court must make a separate determination of the need for detention and the need for further detention). Direct files are housed at the Polk County Jail while awaiting adjudication; after adjudication, or upon reaching the age of eighteen, they are transferred from the Polk County Jail to an adult facility.
The concept of housing juveniles in a county jail setting previously dedicated to adults is a recent development in Florida. Historically, Florida’s DJJ has been tasked with operating a statewide, regionally administered system of detention services for children, in accordance with a comprehensive plan for the regional administration of detention services in the state. See Fla. Stat. § 985.688(9)(a). But in 2011, Florida altered this landscape with the enactment of § 985.688(11). This provision gave counties and municipal governments the discretion to opt for housing juvenile inmates in facilities outside DJJ’s realm, such as a county or municipal jail-type facility, provided certain criteria are satisfied.4 Polk County promptly chose this approach for cost-saving reasons. By October 1, 2011, with all Polk County’s juvenile detainees housed at Polk County Jail, the county’s state-operated detention center closed its doors.5
4 Notably, Plaintiffs do not challenge the law’s constitutionality (see Doc. 43). 5 All references to the Polk County Jail are to the Central County Jail. There is also a South County Jail, which is not at issue here.
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Moving juveniles from the DJJ facility to the central jail facility involved more than just a change in venues. Policy considerations and organizational cultures changed too. For example, DJJ’s Detention Standards, which incorporate Florida’s Administrative Code, do not authorize the use of pepper spray on juvenile inmates. See Rule 63H-1.004(4), Fla. Admin. Code.; see also Fla. Stat. § 985.645(2)(a)(5) (requiring adoption of rules that establish a protective action response policy for DJJ that prohibits the use of chemical agents on youths). On the other hand, § 985.688(11) does not specifically incorporate DJJ’s standards. Instead, the scheme requires the juvenile facility to meet the Florida Model Jail Standards (“FMJS”). See Fla. Stat. § 985.688(11)(a)(4). And those standards allow the applicable agency (here, Sheriff Judd) to adopt a force continuum based either on the Florida Department of Law Enforcement’s (“FDLE”) model or the one DJJ follows. See FMJS § 20.02(a) (Def. Ex. 23). Sheriff Judd applies FDLE’s force continuum, one that has been primarily designed for adults (General Order 1.5(D)(2)(A); Doc. 179 at 60:23-25).
B. Polk County Jail Polk County’s jail complex has a capacity for 800 detainees and inmates, both adult and juvenile, although the two groups are completely separated by sight and sound (Doc. 178 at 38:9, 44:24-45:11).6 At any given time, between 70 to 80 juveniles are detained, including
6 Section 985.688(11)(c), Fla. Stat., requires this, and Sheriff Judd has taken extraordinary steps to meet his statutory obligations in that regard. Juvenile detainees wear different color uniforms from the adult population and are housed in a building separate from adults. The juveniles attend school, recreation, and personal and attorney visits away from the adult population. In fact, other than the adult staff at the jail and any visitors, the juvenile inmates never see an adult during their time at the jail. During my visit, I did not see an adult
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between 2 to 12 females (Id. at 38:9-10).7 The direct files comprise approximately 55 percent of the juvenile population, and the preadjudicated make up the remaining 45 percent, although this ratio is probably a snapshot in time and subject to variation (Expert Report of Paul DeMuro, Doc. 117-5 at 4).8 For example, a May 21, 2012, census reported 74 juveniles in custody (Plf. Ex. 7). The majority were direct files (41). The remaining (33) were preadjudicated juveniles whose ages ranged from 11 to 18. Of the preadjudicated group, 24% were ages 11 to 14; 48% were ages 15 to 16; and 27% were ages 17 to 18 (Id.). Notably for this preadjudicated group, 67% were detained for non-violent or misdemeanor matters (Id.).
A risk assessment classification, medical and mental information, and alerts compiled by the Juvenile Assessment Center (“JAC”) in Bartow are made available to jail authorities for preadjudicated juveniles (Doc. 178 at 15:24-16:11; 23:3). Direct files, who are booked through central booking but separate from adults, arrive with similar information (Id. at 15:10-20; 20:10-13). Any mental health or medical alerts are passed on to the medical staff (Id. at 19:7-13). And deputies have access to information that the mental health staff and the medical staff make available, as well as other information consistent with database
detainee, much less hear one. 7 The jail can house 288 juvenile inmates, a capacity that makes it the largest juvenile
detention facility in the state. 8 DeMuro’s report is also a part of the preliminary injunction hearing record at
Exhibit 3, but I include docket cites where available for ease of reference. 9

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authorization policies (Doc. 178 at 30-31; see Defendant. Exs. 11F and 11G).9 Deputies receive additional intelligence at shift briefings and the information recorded about events or behavior in a pass-down log (Doc. 178 at 30:3-7; Hertel Depo. at 52:10-12, 54:15-18).
Each distinct sub group (male preadjudicated, male direct file, etc.) wears a different colored uniform making classification readily identifiable (see Doc. 178 at 45). The male juveniles are housed in Building 3.10 This building is divided into 6 dorms (A through F, or Alpha through Foxtrot) situated around a control room. Dorms A, B, and C house the preadjudicated juveniles, and dorms D, E, and F house the direct file inmates (Hertel Depo. at 56:19-23). Placement also factors in the nature of the crime (violence or sex), mental functioning, mental health issues, size, and age (Doc. 178 at 29:4-17). Each dorm is two stories and has eight cells – four on the bottom level and four on the top – and each cell has four bunks; thus, each dorm has the capacity for 32 inmates (see Doc. 117-5 at 5; Russell Depo. at 60:13-14).
The dorms have glass front walls and face a common area and control room. Inside each dorm is a dayroom where the juveniles gather when they are permitted (Doc. 117-5 at 5-6). The dayroom is separated from the common area by a door that locks automatically.
9 These exhibits are under seal. 10 At the time of the preliminary injunction hearing, Polk County was in the process of renovating Building 4 to house juveniles. Planned improvements to Building 4 included installing cameras inside every cell. The testimony was that once the renovations were complete, all of the male juveniles in Building 3 would be transferred to Building 4 (Doc. 179 at 75:6-13).
10

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The juveniles cannot open the door from the inside, and the guards cannot open it from the outside unless they call to the guard inside the control room to open it. The cells inside the dorms also have glass front walls. When the dorm doors are closed, which is almost all the time, voices inside the dorm are muffled to the guards in the common area.
Outside the dorms is the guards’ common area, the control room, and two holding cages (see Hester Depo. at 72:19-25; Cranor Depo. at 84:15-18). This area is not monitored by cameras (Id.). When the guards are not performing their duties, they supervise the juveniles from the common area. Despite that the dorm and cell fronts are made of transparent glass, a guard in the common area does not have a direct line of sight into every cell, and blind spots exist in each dorm. In Alpha, Charlie, and Echo dorms, the blind spots are against the back walls of cells 1 and 5; in Bravo, Delta, and Foxtrot dorms, the blind spots are against the back walls of cells 4 and 8 (Hester Depo. at 71:6-72:6). In these blind cells, a deputy “can’t really see if something is happening, somebody is getting to be up, or anything like that.” (Russell Depo. at 57:3-6). Fights between inmates have occurred in these blind cells. The juveniles call these “ToH” or “tests of the heart,” a challenge to see if the newly admitted youth has what it takes to be a detainee in the eyes of the others (Doc. 117-5 at 17; see Hester Depo. at 192:23-193:10). On February 24, 2012, a juvenile was brutally beaten over the course of several hours while on lockdown in Foxtrot dorm, cell 8 (Plf. Ex. 9B). His three cell mates beat him to the point of unconsciousness before a deputy arrived (Id.). On June 13, 2012, juvenile inmate G.G. was assaulted in Echo dorm, cell 1 (Plf. Ex. 1B at 1; Plf. Ex. 11). A deputy (Samuel Gay) noticed the commotion in the
11

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dayroom of the dorm and went inside approximately a minute after the fight began (see Plf. Ex. 11). By that point, however, two other inmates had already jumped G.G. inside cell 1, placing him in a choke hold and hitting him. The jail has since changed its policy; now inmates are housed in these blind cells only if necessary, and the doors to these cells are locked if unoccupied (Doc. 178 at 47:5-19; Hester Depo. at 192:23-193:10). Even when there are juveniles housed in the blind cells, jail staff keep the cell doors closed during school and recreation time (Id.).
Two holding cages are on the edge of the common area (Plf. Ex. 3, photos 2, 5-11). The deputies use the cages for juveniles who are awaiting transfer to court proceedings, awaiting release or processing, awaiting a visit to the nurse on site, or inmates who have been discipline problems (Doc. 178 at 68:13-22; Harrison Depo. at 119:14-120:4). A juvenile confined in one of these “timeout” cages is visible to the guards in the common area and the juveniles inside the dorms (Doc. 117-5 at 6).11
The control room, a one-story room that sits in the middle of the building, affords the
11 Although the Sheriff’s use of these cages is not the aim of the Plaintiffs’ preliminary injunction efforts, I find their use and presence in a juvenile detention setting to be disturbing. Plaintiff’s psychiatric expert, Dr. Glindmeyer, who has extensive experience in juvenile detention matters, including engaging in compliance monitoring for the Department of Justice, some States, and private entities, testified that she had never seen such a cage in any juvenile institution she visited or inspected (Doc. 177 at 57:16-19). Neither had she seen anything similar used for suicide prevention in adult facilities (Id.). She recalled one institution, one in northern California that housed youth (ages 17-25), that had used a cage for administrative detention, but authorities had discontinued the practice before her first visit (Id. at 58:3-16). To some extent, and whether realized or not, the cage conveys a distinct culture about the place – one that is punitive.
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monitoring guard a direct line of sight to portions of the dorms and cells (Id. at 6). Cameras capture activity inside each dorm’s dayroom and shower area.12 There are no cameras in the cells, the holding cages, the isolation cells, or the common area (the common areas and the holding cages are plainly visible from the control room). The deputy in the control room monitors the video feed from the cameras inside the dorms and opens the dorm doors when requested (Gay Depo. at 34:10-13). The control room staff does not leave the room except for breaks.
Down a hallway from the dorms and common area is the isolation area with four cells. Each isolation cell has an opaque door with a small, rectangular food slot in the middle (Doc. 117-5 at 11). Outside of the isolation cells is a common area with a shower. Cameras record activity inside the common area, just outside the isolation cells, but do not capture activity inside the cells (Id.; Hester Depo. at 71:11-18). To exit the isolation area, guards and inmates have to walk down a hallway and through a door into the main area of Building 3 (Doc. 117-5 at 11). The guards in the common area have no direct line of sight to inmates in the isolation area (Id.).
Jail policy is to staff three or four juvenile detention deputies to Building 3 at all
12 The FMJS authorize the use of remote means to supervise juveniles. A juvenile must always be “within sight and normal sound of an officer . . . . This may be accomplished through means of electronic surveillance, provided that a certified officer is available to respond to calls for help.” FMJS § 2.01(a).
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times, not including the guard inside the control room (Doc. 178 at 18-23).13 But no deputy is stationed inside a dorm (Gay Depo. at 38:7-9). Instead, the deputies supervise the inmates remotely and through regular rounds of the dorms. On every shift, one or two deputies are assigned to supervise the direct file dorms and one or two are assigned to supervise the preadjudicated side of the building (Hertel Depo. at 56:1-2).14 These deputies have completed Polk County’s 40-hour training course on how to treat juvenile inmates (Doc. 177 at 41:2242:2).15
The detention deputies work 12 hour shifts. At the beginning of each shift, the deputies perform a head count round in each dorm: One deputy enters each dorm and spends approximately ten minutes counting the juveniles and answering any of their questions or concerns. Immediately afterwards, each deputy makes an entry into a log book (Russell Depo. at 32:15-17). From this point until the end of the shift, the deputies perform shorter
13 Captain Marcum testified that three deputies is adequate staffing for the night shift, as less supervision is needed while the kids are sleeping, and that four are appropriate during the day (Id.). There is no record evidence regarding how many shifts staff three deputies versus four. There is no state mandate regarding the appropriate ratio of staff to juvenile inmates.
14 Plaintiff’s expert (DeMuro) puts Sheriff Judd’s staffing ratio at 15 juveniles to one officer, which he considers insufficient and should be eight youth to one officer according to “widely accepted standards for secure juvenile detention centers.” (Doc. 117-5 at 12). He also contends that the inadequate supervision often leads to fights and violence in the cells and living units (Id.).
15 This is in accordance with Fla. Stat. § 985.688(8), which requires a county that operates its own juvenile detention facility to self-train its employees to comply with state and federal regulations.
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rounds every 15 minutes followed by a log entry (Id.). Deputy Russell testified that a typical round entails, “go[ing] into each dorm, walk[ing] up to each cell, mak[ing] sure everybody is breathing, and just mak[ing] sure they’re not playing or – just make sure they’re in there.” (Id. at 32:5-7; see also Hester Depo. at 45:14-20). The rounds are essential to maintaining order; “[b]y being visible, you prevent [fights] from happening.” (Gay Depo. at 48:6-9). Once every hour, the round must include a head count (Hester Depo. at 42:8-12).
Each deputy is assigned to two or three dorms per shift. Obviously, the time a deputy spends on rounds in one dorm necessarily decreases the time he spends in another. Deputies are also required to do rounds of the isolation cells every 15 minutes and record the juveniles’ activity on a separate isolation room log (Id. at 171:21-25). These rounds, which occur 24 hours a day, are recorded and randomly watched by supervisors to determine if deputies are adhering to their monitoring requirements (Doc. 178 at 45:13, 46:16-23).
Between rounds, the deputies (depending on the shift and time of day) escort the nurse to each cell to distribute necessary medications, pass out laundry to juveniles in their dorms, pass out meals, write any necessary incident reports or log entries, and supervise the inmates from the common area by direct sight. The guards may be able to sit down in the common area for about six or seven minutes between rounds (Hester Depo. at 45:5-8). They communicate with each other and the employee in the control room constantly, either faceto-face or via walkie talkie, which each deputy carries. And the facility provides education in classrooms for direct files and preadjudicated juveniles (Doc. 178 at 45:20-46:3).
The deputies cannot avoid face-to-face interaction with the juveniles during each 15

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shift.16 But the length of this interaction varies depending on the shift, the number of other tasks assigned to the deputy, whether there are juveniles in isolation or on suicide watch who require supervision as well, whether the juvenile is a direct file or a preadjudicated, and to some extent the relationship each deputy has with the juveniles (Doc. 178 at 49:8-50:4; Hertel Depo. at 46:9-11).17
From the Plaintiffs’ perspective, a need exists for greater hands-on supervision by Sheriff Judd’s personnel. More staff, and more face-to-face interaction with the juveniles in their dorms, so the Plaintiffs argue, would reduce fights among juveniles, which is the conduct occasioning the greatest use of pepper spray. Sheriff Judd strongly denies any suggestion that his deputies are not actively managing the juvenile population. But his officers are not all seeing (who could be). The sight lines do not allow a monitoring deputy to watch everything that happens in a dorm (see Doc. 117-5 at 13).18 Nor can a deputy,
16 The night shift guards have fewer minutes inside each dorm per round, because the juveniles are on lockdown inside their cells from 9 p.m. until 6 a.m. (Doc. 178 at 50:612). Nonetheless, rounds still occur during this time period.
17 Captain Marcum testified that the deputies spend more time with the preadjudicated juveniles that the direct files (Doc. 178 at 39:1-10).
18 Sheriff Judd emphasizes the sight lines at the jail are significantly better than those at the closed DJJ facility. I have no reason to doubt this assertion. But the distinction does not seem particularly material. No evidence was presented at the hearing documenting the number of fights at the DJJ-run facility or whether DJJ’s management approach, as compared to Sheriff Judd’s methods, resulted in more or fewer fights than at the Polk County Jail. And even that answer has limited value here as I am “mindful that [a court] must refrain from imposing [its] own theories of penology on the nation’s prisons and strive to inform [the court’s] analysis with objective factors to the maximum extent possible.” Thomas v. Bryant, 614. F.3d at 1307.
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unless inside a dorm, hear much of what is occurring among the juveniles (Id. at 12). In the main, deputies respond to fights after they have erupted (see Plf. Exs. 1, 1B). For most, they converge quickly, but for a few, their delay in responding has been significant (Plf. Exs. 1B at 1, 9B).
C. Sheriff Judd’s Policies The FMJS, the overarching guidelines for Sheriff Judd, authorize the availability of “chemical weapons” to “certified corrections officer” and approve the use of the spray in a juvenile facility when this “use of force is necessary, when this level of force is the least likely to cause injuries to staff or youths, and only if in compliance with and if authorized by the policy and procedures directive for the facility.” FMJS § 20.02(j), (k). Notably, Sheriff Judd has not issued a directive that specifically addresses the use of force in juvenile detention settings. But he has issued general orders and directives regarding the use of force, and chemical restraints in particular, that apply to all deputies and correctional personnel under his command. A Polk County Sheriff’s Office (“PCSO”) General Order dated December 1, 2011, for example, informs deputies as to the use of force: “Members acting within their official capacity may use only that amount of protective action [use of force] which is reasonably necessary to affect lawful objectives. Justifications for using protective action are those facts known or perceived by a member at the time protective action is utilized.” (General Order 1.5(C), Def. Ex. 3B). The December 15, 2011, PCSO Department of Detention Directive (Department Directive 11.13(C)(2), Def. Ex. 4B) sets the guidelines for the use of chemical agents in detention settings: “It is not necessary to wait until an
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inmate engages in physical force to use chemical agents. Chemical agents may be used to subdue an inmate threatening a detention deputy or other individual.” A detention deputy may use spray in self defense, to prevent escape, to prevent injury to another person or property, to quell a disturbance, and “[w]hen an inmate exercises active physical resistance to a lawful command.” Id. Active physical resistance is defined as “physically evasive movements directed toward the member, such as bracing, tensing, pushing, or pulling to prevent the member from establishing control over the subject.” General Order 1.5(D)(2)(c)(2). This is in contrast to passive resistance, which is “verbal and/or physical refusal to comply with a member’s lawful direction, causing the member to use physical techniques to establish control.” General Order 1.5(D)(2)(c)(1).
Each detention deputy carries a two-ounce can of pepper spray on his or her belt (Gay Depo. at 35:8-18). A deputy does not need approval before spraying. Additionally, a larger can of spray, designed for use to quell riots, is stored in the control room in a locked cabinet and may only be used “with authorization from a squad sergeant or higher ranking member.” Detention Directive 11.13(C)(8)(c). However, jail deputies have deployed this larger can of spray without receiving authorization (Gay Depo. at 45:14-22).19
Deputies are specifically directed to avoid “hand-to-hand confrontations . . .
19 Gay testified that this larger can is kept in a cabinet in the control room. When asked if he needs authorization before using it, he responded, “[n]o ma’am, not – well, not to my knowledge.” (Gay Depo. at 45:22). Deputy Harrison had access to the larger can as well: he had the larger can of spray in his pocket and used it in another instance (Harrison Depo. at 158:7-8). Deputy Hester also confirmed that supervisor approval is not required before using the larger can (Hester Depo. at 110:14-16).
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whenever possible” to avoid injuring themselves.20 General Order 1.5(D)(6)(b). Sheriff Judd contends compelling research supports this use of force continuum: spraying inmates to control behavior results in fewer injuries to staff and inmates than physical encounters (Deland Depo. at 141:16-23). One deputy testified: “[t]he proper protocol is to first spray – actually I don’t know if that’s protocol, but I do know we’ve talked about it. They told us to do that over and over, to spray first before we put our hands on people.” (Hester Depo. at 103:10-13). When using spray, guards deploy a short, one-to-two second blast of spray in the direction of the juvenile inmate’s face.
After a deputy uses pepper spray on a juvenile, the deputy must permit the inmate to shower, change, and visit the nurse (Doc. 178 at 168:5-9; Hertel Depo. at 138:21-139:1). It is the practice for deputies to detain juveniles who are sprayed in a holding cell until the nurse is available to see him.21 The deputy must also fill out an incident report (which is approved by a supervisor who then completes a protective action report) detailing the justification for the use of spray and the steps the deputy took to follow decontamination
20 Further, the reasonableness of a “particular response of protective action must be judged from the perspective of how a reasonable member on the scene might respond.” General Order 1.5(D)(12). The General Order acknowledges that “[t]he direction and result of most encounters with subjects can be controlled by good communication skills on the part of a member. In most encounters, the mere presence of a member and proper verbal direction will be sufficient to resolve potential problems and allow a member to execute their duty.” General Order 1.5(D)(8).
21 For example, on November 8, 2011, three inmates were fighting in F Dorm. Deputies Hester and Russell sprayed the two inmates who did not comply with their order to stop fighting. The inmates were escorted to separate holding cells and waited to be individually examined by the nurse (Doc. 117-1 at 19-22).
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procedures afterwards. III.
A. Preliminary Injunction Standards To prevail on their motion, Plaintiffs must demonstrate: (1) a substantial likelihood of success on the merits of their claim; (2) that they will suffer irreparable harm if the court does not issue an injunction; (3) that the threatened harm to the Plaintiffs outweighs the potential harm to Defendant; and (4) that the injunction would not be adverse to the public interest. Haitian Refugee Ctr., Inc. v. Nelson, 872 F.2d 1555, 1561 (11th Cir. 1989) (aff’d, 498 U.S. 479 (1991)). The first factor is usually the most critical, but the level of success on the merits can vary depending on the court’s assessment of the remaining factors. Schiavo ex rel. Schinkler v. Schiavo, 403 F.3d 1223, 1232 (11th Cir. 2005). In any event, substantial likelihood of success does not mean “certain”; it means “only likely or probable.” Id. (emphasis in original). And “[w]here the ‘balance of the equities weighs heavily in favor of granting the [injunction],’ the movant need only show a ‘substantial case on the merits.’” Id. (citing Garcia-Mir v. Meese, 781 F.2d 1450, 1453 (11th Cir. 1986)). A federal court has inherent authority to issue an injunction to remedy a violation of constitutional rights. Klay v. United Healthgroup, Inc., 376 F.3d 1092, 1097 (11th Cir. 2004). Yet, the exercise of that authority comes with the recognition that the issuance of a preliminary injunction is “an extraordinary and drastic remedy and is not to be granted unless the movant clearly establishe[s] the burden of persuasion as to the four prerequisites.” Schiavo, 403 F.3d at 1231 (citations and quotations omitted). Here, Plaintiffs do not seek to ban the use of pepper
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spray at the facility; instead, they move to preliminarily enjoin Sheriff Judd from using it except in exigent circumstances and for Sheriff Judd to develop and implement a staffing, supervision, and classification plan to ensure that all juveniles in Defendants’ custody are adequately supervised and protected from violence (Doc. 22-1 at 2).
B. The Constitutional Challenge – Conditions of Confinement 1. identifying the claim
Claims involving the mistreatment of pretrial detainees are covered by the Fourteenth Amendment’s Due Process Clause instead of the Eighth Amendment’s Cruel and Unusual Punishment Clause. Bozeman v. Orum, 422 F.3d 1265, 1271 (11th Cir. 2005).22 But that distinction is without a material difference as the standards for both are the same, and the decisional law pertaining to inmates applies equally to detainees. Id. A number of different types of claims arise under the Eighth Amendment’s Cruel and Unusual Punishment Clause, each with different tests. Plaintiffs have mixed these types in their pleadings without a discerning distinction. For example, Count Two of the operative complaint (the third amended complaint) alleges “Dangerously Violent Conditions of Confinement” in violation of the Eighth and Fourteenth Amendments (Doc. 197 at 29).23 In contrast, the preliminary
22 At the time of the filing of the complaint, one of the Plaintiffs (K.J.) was awaiting the imposition of a sentence making the Eighth Amendment conceivably applicable. See Doc. 43 at 4 (Order dated May 4, 2012, discussing the applicability of the Eighth Amendment to such a situation and concluding that “[u]nder the sounder logic, ‘the critical juncture is conviction.’” ).
23 Count Two of the operative complaint substantially mirrors the same count in the previous complaints (Docs. 3, 53). Plaintiffs seek a preliminary injunction as to Count Two
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injunction motion uses language more akin to an excessive force claim than one attacking the conditions of confinement. When pressed at the oral argument to identify the type of violation at stake, Plaintiffs’ counsel stated they had decided to proceed under the substantial risk of harm argument, a position that comports with that taken in their pre-hearing brief (Doc. 117).24 Thus, Plaintiffs’ argument here is two-fold, and each addresses Sheriff Judd’s purported indifference to their safety: he acted with deliberate indifference to the inmate-oninmate violence; and his reliance on pepper spray to control the juveniles exposed them to a substantial risk of harm.
2. deliberate indifference standards To prevail, Plaintiffs must show a substantial likelihood of meeting two distinct demands: an objective one – the condition (i.e., the danger of violence and the use of pepper spray) is so serious that it presents a substantial risk of harm to them; and a subjective one – Sheriff Judd acted with deliberate indifference to their safety. Farmer v. Brennan, 511 U.S. 825, 834 (1994). Several considerations factor in the analysis. Comfortable detention centers are not constitutionally mandated, but neither are inhumane ones countenanced. Id. at 832. Officials must take reasonable measures to guarantee the safety of their detainees and have a duty to protect them from violence at the hands of other detainees. Id. at 832-33. And
only. 24 Plaintiffs’ motion for preliminary injunctive relief is necessarily limited by the
allegations in Count Two of the operative complaint. In sum, they must establish a relationship between the conduct it alleges and the injury their motion for preliminary injunction recites. Devose v. Herrington, 42 F.3d 470, 471 (8th Cir. 1994).
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while conditions may be harsh, gratuitously allowing the beating of one detainee by another serves no legitimate penological objective, any more than it squares with evolving standards of decency. Id. at 833.
Proving both aspects of the test, however, does not end the matter. Plaintiffs will be entitled to injunctive relief only if the Court reasonably expects that the violation will recur and any policy changes implemented will not completely and irrevocably eradicate the effects of the alleged violations. See Siegel v. LePore, 234 F.3d 1163, 1173 (11th Cir. 2000) (a claim for injunctive relief may become moot if it can be said with reasonable assurance that there is no reasonable expectation that the alleged violation will recur and the interim relief or events have completely and irrevocably eradicated the effects of the alleged violation); Thomas v. McNeil, No. 3:04-cv-917-32JRK, 2009 WL 64616, at *21 (M.D. Fla. Jan. 9, 2009) (same in the context of an Eighth Amendment inquiry). Furthermore, the consideration of Plaintiffs’ preliminary injunction request must factor in the demands of the Prison Litigation Reform Act (“PLRA”). Miller v. French, 530 U.S. 327, 331 (2000) (“The PLRA establishes standards for the entry and termination of prospective relief in civil actions challenging prison conditions”). Hence, the court must give “substantial weight to any adverse impact on the public safety or the operation of a criminal justice system caused by the preliminary relief and shall respect the principles of comity . . . in tailoring any preliminary relief.” 18 U.S.C. § 3626(a)(2). Any relief “must be narrowly drawn, extend no further than necessary to correct the harm the court finds requires preliminary relief, and be the least intrusive means necessary to correct that harm.” Id. Lastly, should the court grant
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such injunctive relief, the order automatically expires 90 days after its entry, unless the court were to make required findings. Id.25
IV. To a large degree, Plaintiffs focused their attention at the evidentiary hearing on Sheriff Judd’s use of pepper spray and its effects. Perhaps this was because one is related factually to the other. Fights occur and guards quell them with pepper spray, a cause and effect. But the import of Plaintiffs’ constitutional claims are not so factually narrow. The juvenile-on-juvenile violence and Sheriff Judd’s use of pepper spray present separate constitutional inquiries. A constitutionally acceptable use of pepper spray does not mean Plaintiffs’ concerns about the substantial risk of violence are without merit (and vice versa). A. The Objective Inquiry – Serious Risk of Harm
1. violence Fights occur at the jail with substantial frequency.26 My review of the incident reports
25 The PLRA encompasses detention facilities involving juveniles awaiting adjudication or trial. 18 U.S.C. § 3626(g)(3) and (5).
26 I recognize such a conclusion suggests that a certain number of fights is likely. How else could the number here be substantial? As neither side presented any evidence pertaining to the experience of other similarly-sized juvenile facilities (comparators), what should be considered substantial? See e.g., Rizzo v. Goode, 423 U.S. 362, 373-75 (1976) (The crux of Rizzo is the Court’s disapproval of imposing liability for the official’s failure to act in the face of a statistical pattern of misconduct absent proof that supervisory defendant’s had direct responsibility for the action of those officers engaged in the misconduct); see LaMarca v. Turner, 995 F.2d 1526, 1536 n.21 (11th Cir. 1993) (noting Rizzo’s admonition but finding that district court had not solely looked at the statistical evidence before granting injunctive relief. The plaintiffs had “painted a dark picture of life” at the prison; one “that would be apparent to any knowledgeable observer, and certainly to
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and protective action reports approximates 25 fights over a ten-month period. At least one incident resulted in serious injuries demanding hospitalization (see Plf. Ex. 9B). Several of the juveniles expressed their fear for their safety (see D.M. Depo. at 66:1-2; Plf. Ex. 2). The clear majority of the fights occurred when deputies were not present. Although deputies almost always responded to the fights quickly, significant injuries can occur in seconds.
On October 16, 2011, Deputy Hester responded to a fight in Echo dorm (Hester Depo. at 136:21-24). He was outside the dorm at the time and was the first to respond. He found the inmates “hitting each other with mop ringers and broom sticks and – so they were all kind of just going at it.” (Id. at 136:24-137:1). Deputy Hester testified that all of the inmates in the dorm were involved in the fight: “[E]verybody was fighting. It seemed like everybody was hitting somebody....” (Id. at 137:18-19). The fight involved “14 to 16 kids” (Id. at 136:12), and the incident report confirms that one inmate was trying to hit another with a mop (Doc. 117-1 at 15). Deputy Hester sprayed at least one inmate who did not comply with his orders to stop fighting (Id.).27 Two deputies from PSCO investigated and charged all inmates involved in the fight with felony battery and criminal mischief.
A week later, on October 24, 2011, Deputy Hester responded to another fight, this
an an official in the [superintendent’s] position.”). 27 Deputy Hester testified that the situation was a complete melee. The first inmate
he sprayed “didn’t get on the ground when I told him to and I had my pepper spray in my hand because, you know, they’re afraid of it. They’re not afraid of being grabbed because, you know, we’re not going to hurt them, so they’re not afraid of that. So they’re afraid of the pepper spray, so, you know, they respond well to it.” (Hester Depo. at 139:12-18).
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one in Charlie dorm (Doc. 117-1 at 10). Deputy Hester was in Echo dorm when he noticed the fight and was the first deputy to respond. He ordered the two inmates involved to stop fighting and sprayed the juveniles when they did not comply (Id.). After the fight was contained, the inmates involved were locked in the holding cages until the nurse examined them. The rest of the dorm’s inmates were on lockdown while a deputy cleaned blood from the fight off of the dayroom floor (Id.).
According to a police report, on February 24, 2012, three juvenile inmates were on lockdown in Foxtrot dorm, cell 8 (a blind cell dorm) when they beat a fourth cell mate, T.W., to the point of unconsciousness multiple times over the course of several hours (Plf. Ex. 9B). The inmates first wrapped a pillowcase around T.W.’s neck and strangled him until he passed out. Then they hogtied him with a sheet and punched him in the head. When T.W. eventually regained consciousness, his cell mates were whipping him with wet towels. The perpetrators, anticipating that a deputy would make rounds soon, untied the victim while a deputy walked past the cell (Id.). The deputy did not notice anything out of the ordinary and walked on. T.W. was then urinated on, sprayed in the face with a cleaning substance, and stripped of his clothes. The perpetrators wrapped a sheet around his neck, tied the other end around the bar on the window, and pulled the sheet tight until T.W. lost consciousness. This was repeated three times until a deputy finally noticed the commotion and broke up the assault. T.W. was hospitalized, and the inmates were arrested and charged with attempted
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murder (Id.).28 On March 21, 2012, two inmates started fighting just inside the entrance to Alpha
dorm, near an area where a steel bunk had been set up for a juvenile on direct observation (Doc. 117-3 at 35). They would not stop fighting despite Deputy Choquette’s orders to do so. Still punching each other, the two inmates fell onto the bunk, which collapsed under their combined weight (Id.). Deputy Choquette, worried for the inmates’ safety at this point, sprayed both juveniles in the face (Id.).
On June 13, 2012, another fight occurred in a blind cell, this time in Echo dorm, cell 1 (Plf. Ex. 1B). Upon noticing a commotion, Deputy Gay entered that dorm. Right away he noticed red marks around one inmate’s neck. According to the incident report, three inmates were fighting; Deputy Gay sprayed one of them (who turned out to be the victim) in the face when he would not stop throwing punches. Deputy Gay’s report states that two of the inmates had placed the victim in a choke hold and “hit him in the head and face area several times.” (Id.) The victim had red marks around his neck but did not suffer serious injuries. The inmates reported it was a “payroll” fight over the victim’s food plates for that day (Id.).
28 Sheriff Judd maintains an event like this is unlikely to reoccur because he has shut down these blind cells and implemented quality assurance checks performed by a lieutenant in addition to the regular 15 minute rounds (Doc. 178 at 46:16-23). Additionally, the deputy involved in the incident has been removed from juvenile duties. While I agree the future probability of a like event taking place in one of these few cells is more remote than before Sheriff Judd’s remedy, the fight signals concerns more than just the location. That deputies missed the commotion despite the purported regularity of their rounds questions the adequacy of the inspection. One event, however, does not make a trend.
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“[T]he right to personal security constitutes a historic liberty interest protected substantively by the Due Process Clause. And that right is not extinguished by lawful confinement, even for penal purposes.” Youngberg v. Romeo, 457 U.S. 307, 315 (1982). The “essence” of Plaintiffs’ dangerous-condition claim against Sheriff Judd is his alleged failure to provide an atmosphere that assures their “reasonable safety.” Tittle v. Jefferson Cnty. Comm’n, 10 F.3d 1535, 1543 (11th Cir. 1994) (Kravitch, J., concurring). It does not matter that some of the juvenile detainees have been unaffected by the violence or that only one juvenile has suffered severe injures at the hands of other detainees. It is enough that the violent conditions continue to pose a substantial risk of serious harm. Farmer, 511 U.S. at 834. See also Rodriquez v. Sec’y for Dep’t of Corrections, 508 F.3d 611, 617 n.12 (11th Cir. 2007) (gang-related threats made on inmate’s life, which were reported to prison officials, triggered Eighth Amendment duty to act); Purcell ex rel. Estate of Morgan v. Toombs Cnty., Ga., 400 F.3d 1313, 1320 (11th Cir. 2005) (“We accept that an excessive risk of inmate-oninmate violence at the jail creates a substantial risk of serious harm.”). Fights at the jail are not infrequent; they are commonplace. Based on my review of the evidence, I find the Plaintiffs are likely to satisfy their objective demand that the level of violence poses a serious risk of harm.
2. pepper spray OC spray, also known as pepper spray, is an aerosol spray made with the pepper derivative oleoresin capsicum. Designed to disable a subject, it produces “intense pain, a burning sensation that causes mucus to come out of the nose, an involuntary closing of the
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eyes, a gagging reflex, and temporary paralysis of larynx.” Danley v. Allen, 540 F.3d 1298, 1309 (11th Cir. 2008), overruled in part on other grounds by Randall v. Scott, 610 F.3d 701 (11th Cir. 2010) (quotations omitted). The burning effects of the spray can last for several hours, particularly if the person is kept in a confined space and not allowed to decontaminate (Doc. 117, Ex. 5 at 6).29 For some, the spray can cause “disorientation, anxiety, and panic.” Danley, 540 F.3d at 1309 (quotations omitted). And for others – asthmatics or the mentally ill – the effects can be more severe. Pepper spray constricts the bronchials, exacerbating respiratory issues. It can make the mentally ill more paranoid, fearful, angry, and less trusting, all of which compromises the ability to treat their mental illness. Thomas v. McNeil, 2009 WL 64616, at *4. The spray’s particular sensitivities to adolescents are less well known as the overwhelming majority of its use nationwide is directed at adults. Plaintiffs’ psychiatric expert (Dr. Glindmeyer) opined that an adolescent who experiences or witnesses a pepper spray episode is exposed to a traumatic event, and that traumatic events by their nature almost always produce adverse symptoms (Doc. 117-9 at 10-11). While the symptomatology might not rise to the level of diagnostic criteria, the signs are nonetheless considered to be peritraumatic responses (an example would include the sense of being in a daze). Adolescents can exhibit peritraumatic responses and maladjustment in the days and
29 The hotness in peppers is measured in Scoville units. A jalapeno measures at 5,000 units; pepper spray routinely reaches 200,000, making pepper spray 400 times hotter than a jalapeno. United States v. Mosely, 653 F.3d 859, 862 (6th Cir. 2011) (finding that Michigan conviction for shooting pepper spray at a person without justification constituted a “crime of violence” for career offender purposes under the federal sentencing guidelines).
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weeks following the traumatic event, and some will continue to exhibit trauma symptoms that meet criteria for the diagnosis of Posttraumatic Stress Disorder (see id.).
The National Institute of Justice (NIJ) reviewed two unpublished NIJ-funded studies that used different methodologies to test pepper spray’s effectiveness. See Nat’l Inst. of Justice, The Effectiveness and Safety of Pepper Spray (NCJ 195739) (April 2003). One looked at injuries to officers and suspects in jurisdictions in North Carolina after pepper spray had been introduced. That study showed declines in injuries to both groups (a fact that Sheriff Judd emphasizes) and a reduction in the filing of excessive force complaints. The other study examined the cause of death in 63 cases purportedly involving pepper spray. Of these deaths, pepper spray contributed to the death of two asthmatics. In contrast, a report issued by an advocacy group, the Texas Criminal Justice Coalition, commented that no study has recommended pepper spray as safe for use on children. See Leah Pinney, Tex. Crim. Justice Coal., Pepper Spray in the Texas Youth Commission: Research Review and Policy Recommendations (Nov. 2007). The authors opined that “[i]f juvenile corrections personnel are not proficient in primary control and de-escalation techniques, they may increasingly rely on pepper spray as an option of force,” a proposition the Plaintiffs advance. Id.
All evidence points to Polk County as the only county in Florida where line staff at a juvenile detention facility carry pepper spray (see Doc. 117-5 at 7 n.4).30 And Sheriff
30 Detention direction 11.13 states that “[p]ersonal two (2) ounce chemical agent dispensers may be carried by detention deputies in secure areas, provided the dispenser is carried in an agency-issued web gear holster.” Detention Directive 11.13(8)(e). Polk County Jail detention deputies have completed pepper spray training. As a part of this training, they
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Judd’s policy is not common elsewhere in the country. Only 15 jurisdictions (this includes
all 50 states, the District of Columbia, and Puerto Rico) have state agencies that authorize
the use of chemical agents in juvenile detention settings. Of these 15, only six agencies
allow their line staff to carry pepper spray.31
How many pepper spray events have occurred is hard to pin down. Both sides
dispute the numbers during a given period, September 2011 through June 2012 (ten months).
The Plaintiffs count 37 instances, with the total number of juveniles sprayed at 71 (Plf. Ex.
1A). Sheriff Judd figures 22 episodes with 36 juveniles sprayed (Defendant. Ex. 36).32
are sprayed and directed complete certain tasks. 31 This data was compiled by the Council of Juvenile Correctional Administrators
in its May 2011 Issue Brief, Pepper Spray in Juvenile Facilities, available at cjca.net/attachments/article/172/CJCA.Issue.Brief.OCSpray.pdf. When this research was published, the Florida legislature had not yet enacted Fla. Stat. § 985.688(11), which by requiring compliance with the FMJS gives line staff at county-run juvenile detention facilities the authority to carry pepper spray. Only three Florida counties have opted to run their own detention facilities, Polk, Marion, and Seminole, and Marion follows the DJJ’s use of force continuum, which does not authorize line staff to carry pepper spray. The parties did not offer evidence about Seminole County.
32 The disparity between the two sides is attributable to the time frame charted and the sources examined. Plaintiffs’ time span extends into July 2012; Sheriff Judd’s time frame ends in June 2012. Plaintiffs relied on the incident reports provided in discovery and the testimony and the sworn statements juveniles gave about other pepper spray events for which the discovery documentation did not detail. For example, Deputy Harrison sprayed around the perimeter of a holding cage with the larger can of spray to force the juveniles inside – who were on suicide watch – to stop singing a vulgar song. (Harrison Depo. 115:615). He did not fill out an incident report following this use of spray (Gay Depo. 137:11-12) and was reprimanded and taken off juvenile duties the following day (Harrison Depo. 115:24-116:6). Another juvenile who testified at the hearing (K.G.) testified about the spraying of A.S. in April 2012. No report exists for that event. See Doc. 179:36-38.
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Frankly, Sheriff Judd does not track pepper spray use. His only data comes from protective action reports and incident reports, and these encompass the gamut of protective actions, including the use of pepper spray. Supervisors monitor the reports to keep abreast of the reported behavior and to determine if the reporting officer needs management’s intervention. But no matter the precise spray score, the reports reveal distinct patterns. By my count after reviewing the evidence presented for the operative ten months, deputies used force in 35 instances.33 Of these, deputies applied pepper spray 29 times, and many events involved more than one burst. My review shows: 19 involve fights between juveniles; two describe a need to protect an inmate from harming herself or others; five concern the use of spray for failure to obey a deputy’s order; and three deal with the use of spray to quell a potential disturbance. The number of affected juveniles approximates 47, with some being sprayed multiple times.34 But my count is the likely minimum estimate for the period. Plaintiffs have pointed to at least two instances without accountable documentation that I credit (see footnote 32). Whether the juveniles, who have reported incidents for which no documentation can be found, are accurate historians, or whether they have confused some events with reported events is difficult to discern. And to a large degree, the exact numbers are unimportant to the legal analysis.
33 I take this number from the incident reports, Plf. Exs. 1, 1B, and the testimony of two unrecorded incidents (see footnote 32 and Doc. 179 at 36-38).
34 If a fight involved six inmates and deputies used spray to break it up, all six inmates are included in this calculation.
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Examining these events individually and then totally to see if Sheriff Judd’s overall use of pepper spray creates a constitutionally unsafe condition of confinement is difficult, particularly when each incident is viewed from the deferential perspective afforded to jailers. Nonetheless, six considerations inform my analysis. Some of these are precedent-driven. Others are just commonsensical assumptions based on experience.
First, the Eleventh Circuit has repeatedly said that “[p]rison guards may use force when necessary to restore order and need not wait until disturbances reach dangerous proportions before responding.” Danley, 540 F.3d at 1307 (quoting Bennett v. Parker, 898 F.2d 1530, 1533 (11th Cir. 1990)). “And prison guards do not have the luxury or obligation to convince every inmate that their orders are reasonable and well-thought out. Certainly they are not required to do so where an inmate repeatedly fails to follow those orders.” Id. Indeed, the Danley court determined that Danley’s second failure to obey a command to return to his cell was a sufficient reason to legally hit him with a dose of pepper spray, a method which the court considered “an accepted non-lethal means for controlling unruly inmates.” Id. But juvenile detainees are “unruly” by nature. If Danley’s language were strictly applied, each time a juvenile acted unruly an officer could chemically spray him without offending the Constitution (assuming the quantity administered was not excessive and the juvenile was allowed to promptly decontaminate). Such an extrapolation, particularly in a juvenile setting, conflicts with the circuit’s other cases curbing the use of pepper spray. See Vinyard v. Wilson, 311 F.3d 1340, 1348 (11th Cir. 2002) (use of pepper spray is excessive force under Fourth Amendment where crime is minor, the arrestee surrenders, is
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secured, is not violent or threatening officer safety). Even the temporary pain pepper spray causes can be constitutionally impermissible if used unnecessarily. Id. Despite Danley’s language, the guiding standard is whether the chemical agents were used unnecessarily and without penological justification. Thomas v. Bryant, 614 F.3d at 1307.
Second, when reviewing the incident reports to evaluate the penological justification for the use of pepper spray, I am mindful of their institutional nature. Deputies memorialize protective actions knowing superiors will review the reports. The language of the force continuum expressed in the Sheriff’s general orders will invariably appear in these documents unless another deputy (the one who did not use the force) gives a contradictory account. This observation does not mean that I am suggesting that any of the officers whose reports I have reviewed misled superiors about his or her actions. But a deputy’s justification for deploying pepper spray is in many instances grounded on fleeting perceptions – that a juvenile balled his fist, or that he assumed a fighting stance, or that he took an aggressive posture. Reasonable officers can often disagree about such matters and the need for force. Furthermore, if the administrative culture promotes an officer’s use of the spray as a preferred option over other techniques, that culture may also unwittingly promote the officer’s rote recitation of the force continuum’s justification for the spray. That said, Sheriff Judd’s deputies are undoubtedly tasked with a challenging population to oversee, one that requires skill and patience.
The third consideration is a cautionary reminder when evaluating a specific incident or report. Focusing on a single event without regard to other pepper spray events can skew
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the analysis. A macro view of the protective action reports reveals more about patterns of the chemical’s use and may put a singular event in context. For example, almost all of the fights occur when an officer is not in a dorm. Yet, even that observation may have limiting relevance as judges should be wary of wading into the minutiae of administering a detention facility. Bell v. Wolfish, 441 U.S. 520, 562 (1979).
Fourth, a macro view of the reports also has its shortcomings. Looking for patterns and then categorizing and labeling events into discernible boxes of conduct can be analytically deceiving. A pattern suggests consistency in behavior and assumes an evidentiary relevance. See, e.g., Black’s Law Dictionary, 1149 (7th ed.1999) (“A mode of behavior or series of acts that are recognizably consistent”); Fed. R. Evid. 406 (evidence of a person’s habit or an organization’s routine practice may be admitted to prove that on a particular occasion the person or organization acted in accordance with that habit or custom). But how many events are needed to foretell a pattern? And which pepper spray events are relevant for inclusion in the constitutional analysis?
Fifth, a significant portion of juvenile detainees suffer from mental illness. Although the precise number of Polk County detainees in this category is not available, Dr. Glindmeyer noted the social science literature approximates that 65% of juveniles in a detention setting suffer from mental illness (Doc. 177 at 42:23-44:2). Another study places the percentage higher, at 70%. See Mark Soler, et al., Juvenile Justice: Lessons for a New Era, 16 GEOJPLP 483, 513 (2009). Many detainees are on psychotropic medications. For some incidents, Sheriff Judd’s staff may be responding inappropriately to mentally ill inmates who
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may be suffering from symptoms of their illnesses that manifest in behaviors such as yelling,
lashing out, or refusing to obey orders. See Thomas v. McNeil, 2009 WL 64616, at *24
(noting a warning issued by Florida’s legislatively created monitoring body to the
Department of Corrections (“DOC”) regarding same and recommending DOC adopt
procedures similar to the Federal Bureau of Prisons, which calls the intervention of mental
health personnel to diffuse the situation).
Sixth, the overwhelming number of juvenile detention centers in the nation, and
Florida in particular, do not use pepper spray.35 And the majority of the jurisdictions that do
use pepper spray do not allow line staff to carry the chemical restraint. Reasons must exist
for this, and some seem obvious. The national view, to the extent one can be garnered
35 As noted previously, Florida law does not authorize the use of pepper spray on juvenile inmates under DJJ custody. See Fla. Stat. § 985.645(2)(a)(5); Fla. Admin. Code r. 63H-1.004(4). Defendant Judd’s position is that Fla. Stat. § 985.688(11) requires he comply with the FMJS; thus, relieving him from § 985.645(2)(a)(5)’s legislative mandate prohibiting the use of pepper spray in juvenile facilities. Sheriff Judd’s view seems at odds with Chapter 985’s comprehensive statutory scheme governing juvenile justice and the plain wording of the statute he relies upon. Section 985.688(11) states that a county-run juvenile facility is in compliance with the remainder of that section (i.e., § 985.688) if the facility complies with the FMJS. That section does not provide that a county sheriff is free to disregard the remainder of the chapter (i.e., Chapter 985) relating to juveniles and their detention. See, Daniels v. Florida Dept. of Health, 898 So.2d 61, 64 (Fla. 2005) (“When the statute is clear and unambiguous, courts will not look behind the statute’s plain language …”). FMJS does not appear to have the force of law. When asked about this at the preliminary injunction hearing, defense counsel stated that the FMJS are “quasi-regulations” (Doc. 179 at 72:13). Counsel then emphasized that compliance with the FMJS is mandatory for Sheriff Judd to operate the juvenile facility under Fla. Stat. § 985.688(11). This is undoubtedly correct. Nonetheless, the FMJS merely authorize Sheriff Judd to permit his deputies to access pepper spray, they do not compel it. In any event, I doubt the FMJS trumps a contrary statute on point. These matters, however, are state law issues and only add background to the controversy of the use of pepper spray in Florida’s juvenile facilities.
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through surveys, suggests that pepper spray is inappropriate in the juvenile setting; or, if used, the chemical restraint should be employed sparingly. Restricting the spray to a particular location or a supervisor makes use of the spray a tool of last resort. Not only do these restrictions make the line officer’s application for the use of the spray institutionally more inconvenient, it likely adds another layer of review, perspective, and control. I also suspect the regulators who decided against arming line staff with pepper spray had a more basic concern – the undesired effect of making their personnel increasingly reliant on pepper spray to end a conflict and less apt to diffuse the situation through de-escalation techniques. Pepper spray offers the officer a quick fix to the problem he or she faces. But the tool’s utility is not always synonymous with its constitutionally permissible use.
With the above considerations in mind, my review of 29 pepper spray incidents reveals what would be expected: deputies at the jail spray to stop fights, quell disturbances, protect themselves or others, and force compliance with orders. Some guards resort to the spray before putting their hands on a juvenile to control his behavior. Some events stand out and are detailed below. In looking at these events, it is helpful to borrow the DOC’s parlance. The first two examples represent the “spontaneous” use of force to end the immediate danger the inmates presented to each other and the staff. The remaining four events are non-spontaneous uses of force. No immediate danger was apparent; instead, the aim was to force compliance with an order, a matter that permitted a more deliberative pace for deciding the appropriate official response. Thomas v. McNeil, 2009 WL 64616 *2 n. 10 (discussing DOC policies).
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On January 22, 2012, a group of juveniles circled an unsuspecting detainee named J.P around the food station cart in Charlie Dorm. Without warning one punched him, landing a blow to the side of his head. The rest piled on swinging away (video of incident, Plf. Ex. 13A; Doc. 117-2 at 5-11). Deputy Hertel and Deputy Gay, who was armed with the large can of spray he had grabbed from the control room, quickly entered the dayroom and sprayed the melee (Hertel Depo. at 122:13-14). Of the six involved in the fight, J.P. and another immediately dropped to the floor face down (Gay Depo. at 102:3-7). Deputy Gay knelt closely over J.P. and told him to remove his hands from beneath his body. J.P. refused according to Gay. Gay next recounted that J.P.’s “right elbow came out from beneath him quickly and aggressively.” (Doc. 117-3 at 5; Gay Depo. at 103:9-12). Gay said he felt threatened, and so he sprayed J.P. in the face (Gay Depo. at 104:12-13). This fight is emblematic of the fights that occur at the facility, although the numbers of juveniles participating in this brawl is not the norm. Deputies typically respond after the fight starts and pepper spray to quell the disturbance. The initial bursts of spray are objectively justifiable. This one stands out from the rest because of Deputy Gay’s actions after the initial spraying had immobilized J.P. Having viewed the video, I do not credit Deputy Gay’s account that J.P. posed a threat to either officer. J.P. offered no resistance after being initially sprayed, nor did he make any furtive gestures once on the floor. Yet, Deputy Gay administered a dose of spray inches from J.P.’s face (Plf. Ex. 13A). The video clearly shows J.P. writhing; indeed, he testified that the pepper spray burned and made it difficult to breath (he is an asthmatic). After the event, an officer put him in the cage briefly, and then took him
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to the isolation room to shower and visit the nurse.36 He continued to feel the effects of the spray the next day. I consider Deputy Gay’s second administration of spray to J.P. unnecessary and without penological justification.
On November 3, 2011, Deputy Gay, from his vantage point in the common area, noticed a fight break out in Charlie dorm between two juveniles (Doc. 117-1 at 17). The juveniles did not stop fighting once Deputy Gay entered the dorm and ordered them to do so (Gay Depo. at 63:16-17). Consequently, Deputy Gay sprayed both inmates in the face (Id. at 65:11-13), which immediately stopped the fight. One of the juveniles dropped to the ground in a prone position (Id. at 65:16-17). The other juvenile, however, “started walking toward the restroom area or the shower area. . . . And I gave him an order to lay prone on the floor.” (Id. at 65:17-19, 24-25) When he still did not comply and “continued toward the shower,” Deputy Gay sprayed the inmate in the face again (Doc. 117-1 at 17). After this second spray, the juvenile complied with the order to get on the ground (Id.). As with the above example, this second spray occurred after the danger of the fight had passed.
B.G., no novice to the juvenile justice system, was a particularly difficult detainee. Charged with sexually assaulting a female with a weapon, he repeatedly fought other
36 The decontamination of pepper spray works best using a cold shower. Every juvenile who testified at the preliminary injunction hearing commented that their showers were not cold enough, which exacerbated the spray’s effect. I do not credit this testimony for two reasons. First, the juveniles may not have known to use cold water instead of hot. And second, I note that at least one juvenile (B.G.) complained to his family about the lack of hot water. That complaint prompted B.G.’s sister to write the governor about the living conditions at the facility including the lack of “hot water.” See Def. Ex. 11G (under seal; Bates # 10th supplement 05110)
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detainees, damaged or tried to damage the facility’s property on a couple of occasions, and generally made himself a nuisance to the staff and probably his fellow detainees (Def. Ex. 11F (under seal)). He also suffers from mental illness – bipolar, oppositional defiant disorder, and attention deficit hyperactivity disorder (Doc. 175 at 187). On February 12, 2012, sometime after the evening lockdown, B.G. and another juvenile named K.J. made some comments that deputies interpreted to be self-harming in nature. Both were placed in a cage, fitted with suicide smocks, and observed.37 Both then became disruptive, beating the cage’s plexiglass lining and incessantly rapping a vulgar song despite being ordered to cease (Plf. Ex. 12). Deputy Harrison sprayed the floor around one of the holding cages to quiet the two. (Harrison Depo. at 115:6-7, 123-24). Deputy Harrison, however, did not complete an incident report after spraying, an infraction for which he was removed from juvenile guard duties indefinitely (Plf. Ex. 12 at 3). Had Deputy Harrison spayed the two in the face, he would not have been disciplined because the use of force policy justified the administration of pepper spray to quell the disturbance and to protect jail property (Plf. Ex. 12 at 2). Admittedly, this scenario is likely not to reoccur given Sheriff Judd’s disciplinary action against his deputy. Nonetheless, the episode is remarkable for another reason – Deputy Harrison would have been justified in spraying B.G. directly for failing to abide by his order even though B.G. did not exhibit any active physical resistance, a message that is more
37 A suicide smock is a heavy, padded suit resembling a butcher’s apron that is designed to make it difficult for a juvenile to harm himself or herself. Once a deputy determines that a juvenile should be placed on suicide watch, it is jail policy that the juvenile change into the smock.
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punitive than rehabilative. Other options were available. Another incident occurred involving juvenile T.H. on April 1, 2012 (Doc. 117-3 at
33-34). T.H. had been confined in isolation for an unspecified period of time for reasons that are not apparent from the record. He had flooded his isolation cell with water from the sink and thrown his food and tray (Hertel Depo. at 105:19-24). Deputy Hertel asked T.H. to pass his tray through the slot in the door (Doc. 117-3 at 33). T.H. did not comply (Id.). Deputy Hertel then ordered T.H. to walk to the rear of the isolation cell and face the wall so he could enter and retrieve the tray (Id.). T.H. again refused to comply (Id.). At this point, Deputies Hertel and Sanders entered the cell and asked T.H. again to move against the rear wall (Id.). Deputy Hertel testified that T.H. eventually complied but then “turned around and took a fighting stance.” (Hertel Depo. at 119:12). Deputy Hertel sprayed T.H., who immediately collapsed onto his cot. Hertel testified that he sprayed because he felt threatened, even though he had Deputy Sanders with him as back up and even though T.H. was confined to an isolation room (Id. at 118:13-119:23). Deputy Hertel is approximately seven inches taller and 150 pounds heavier than T.H. (Id. at 109:3, 118:18-19).
On January 16, 2012, and again on January 24, 2012, juvenile D.G. was sprayed. D.G. had threatened to kill herself several times while at the jail and was on suicide watch both times she was sprayed. In fact, Deputy Cranor testified that D.G. talked about killing herself daily and had “[c]onstant mood swings” (Cranor Depo. at 159:1; 163:16). D.G. “ha[d] a lot of strange behaviors” – she had tried to pull her hair out once, she talked to herself regularly, and on one occasion had attempted to cut her wrist with a piece of paint she
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had peeled off the wall (Id. at 159:4-11, 164:5-7). The first time she was sprayed, she was on direct observation and confined to a bunk, which was placed in the dayroom of her cell against the glass front wall (Doc. 117-2 at 20-21). She refused to stay there, once even starting to climb the stairs to the dorm’s second level. She was screaming profanities (Cranor Depo. at 98:24-25). Deputies Bell and Cranor threatened to shackle her to the bunk because they were afraid she would jump from the second level (Doc. 117-2 at 20). Deputy Cranor called her supervisor (Sergeant McGraw), who arrived and authorized the deputies to shackle D.G. (Id.). But rather than return to her bunk, D.G. sat down at a table in the dayroom and put her head down (Cranor Depo. at 106:21-23). At this point, McGraw ordered Deputy Cranor to spray D.G. (Doc. 117-2 at 20). Deputy Cranor tried to spray D.G. in the face, but she put up her hands up (Id.). Deputy Cranor then “grabbed the back of her suicide smock and pulled her back and sprayed her again.” (Cranor Depo. at 109:6-7). The second incident where D.G. was sprayed was eight days later (Doc. 117-3 at 17). D.G. was on suicide watch again. She refused to return to her bunk and, when deputies attempted to guide her there and ultimately threatened with shackles, she “kicked and squirmed” to break free (Id.). D.G. was sprayed (Doc. 117, ex. 3 at 17). She was allowed to shower and was then shackled to her bunk (Id.). All concede D.G. actively suffers from mental illness, as these events suggest. Yet, no mental health personnel intervened; no decision was apparently considered, at least from the record before me, as to whether she should be involuntarily committed under Florida’s Baker Act. Instead, deputies controlled her behavior through pepper spray.
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On February 25, 2012, three inmates, including M.H., were in the holding cages being evaluated for suicidal thoughts (Doc. 117-3 at 23).38 When all three refused to change into suicide smocks, the deputies called Captain Marcum to assist them (Id.). Once she arrived, two of the inmates agreed to change right away (Harrison Depo. at 153:4-12). M.H., after first refusing, confirmed that he indeed felt suicidal, and he too agreed to change into the suicide smock (Doc. 117-3 at 23). Deputies Harrison, Brown, and Galloway opened the holding cage door to hand M.H. the smock and take his clothes. At this point, M.H. changed his mind, refused to undress, and “did not move.” (Id.) From inside the cage, the three deputies ordered M.H. to take off his clothes numerous times. M.H. refused and took two steps to his right (Id.). Deputy Galloway ordered him one more time to undress. When he did not, Deputy Harrison sprayed him with the larger can of spray (Harrison Depo. at 158:78, “I had the big can in my pocket, and that’s what I used.”). At this point, M.H. dropped to the ground, where he was undressed and given a suicide smock. Whether M.H. suffers from mental illness is not clear from the record before me. And, I recognize that whether he does or not is beside the point as the deputies take each threat, whether real or faked, seriously. Nevertheless, other options were available. M.H. presented no immediate danger to himself while under the officer’s observation.
Although not all these calls are easy, I find Plaintiffs are likely to show the deputies in these events applied the chemical restraint without penological justification as no
38 M.H. had been involved in the incident involving T.W. the previous day that resulted in T.W.’s hospitalization.
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immediate threat to the safety of anyone was apparent. Yet, if these few episodes were all that mattered, I would find that they do not equate to a condition of confinement that poses a serious risk to their future health or safety. Chandler v. Crosby, 379 F.3d 1278, 1289 (11th Cir. 2004). However that is not the case. Plaintiffs’ central tenet is that Sheriff Judd’s pepper spray use covers up shortcomings in staffing. Fights occur because no one is available to intercede before the fights begin. And spraying to end a fight that could have easily been avoided with more staffing does not justify the application of force to make up for the deficiency. The violence of the spray just adds to the violence of the fights. Staffing is not the only concern. Before a juvenile is sprayed, no evident regard is made as to whether he or she suffers a mental or physical illness and whether the administration of the chemical will exacerbate the condition.
In addition, whether the deputies’ use of pepper spray – and its effects on the juveniles – is sufficiently serious to satisfy the objective prong is based on “evolving standards of decency.” Thomas v. Bryant, 614 F.3d at 1307 (citation and quotations omitted). Polk County is one of a very small number of jurisdictions nationwide that permit juvenile detention deputies to carry pepper spray on their holsters. I am charged with balancing the need to keep the jail safe against the evolving standards of decency. Id. The evidence above convinces me that the deputies’ reliance on the spray to maintain order and discipline has become systemic. Here, there are enough instances of unnecessary infliction of pain through pepper spray with no penological justification for me to conclude that the balance weighs in Plaintiffs’ favor as to the objective prong.
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I recognize the deference to be given Sheriff Judd’s charge. His is not an easy task. Divining which juvenile is recalcitrant and which is mentally incapable of obeying a command is difficult for the best trained mental health experts. And, at times, his deputies do not have the luxury of time to act with more deliberation. Their task though is clear: “[t]he Legislature intends that detention care, in addition to providing secure and safe custody, will promote the health and well-being of the children committed thereto and provide an environment that fosters their social, emotional, intellectual, and physical development.” Fla. Stat. § 985.02(3). Sheriff Judd’s use of the spray is not in keeping with this intent. I find Plaintiffs are likely to meet the objective component of the deliberate indifference test.
B. Subjective Component Again, the applicable standard is wantonness and obduracy – proving that the official was deliberately indifferent to a serious risk of harm to the detainee. Thomas v. Bryant, 614 F.3d at 1312. The analysis is multi-factored. Plaintiffs must show Sheriff Judd had subjective knowledge of a risk of serious harm; he disregarded that risk; and he did so by conduct that is considered more than gross negligence. Id. Or, stated another way: Sheriff Judd had to have knowledge of the infirm condition and knowingly or recklessly declined to take action that would have improved the condition. Id. The Plaintiffs may attempt to prove this through “the usual ways,” including inferentially via circumstantial evidence or from “the very fact that the risk was obvious.” Id. at 1313 (quoting Farmer, 511 U.S. at 842). Farmer is particularly instructive here:
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For example, if an Eighth Amendment plaintiff presents evidence showing that a substantial risk of inmate attacks was ‘longstanding, pervasive, well-documented, or expressly noted by prison officials in the past, and the circumstances suggest that the defendant-official being sued had been exposed to information concerning the risk and thus ‘must have known’ about it, then such evidence could be sufficient to permit a trier of fact to find that the defendant-official had actual knowledge of the risk.’ 511 U.S. at 842-43 (citation omitted). The evidence before me tracks about ten months. This is a short period. Fluctuations from month to month in the data may or may not portend a dangerous trend. Sheriff Judd has taken steps to eliminate the places of the more egregious fights – the blind cells. And he informs that he is taking steps to install equipment to monitor individual cells, which may further reduce the number of fights. This suggests that Sheriff Judd has knowledge of the infirm condition and has taken action to address some of the violence. From the evidence presented to me, I cannot find Plaintiffs, at least at this juncture, are likely to meet the subjective component regarding the level of juvenile-on-juvenile violence. As to Sheriff Judd’s use of pepper spray, the call is closer because the pattern of its use is clear, the institutional reliance on it is apparent, and Sheriff Judd’s belief in its efficacy and utility is consistently deliberate despite its uncommon use elsewhere in Florida and the rest of the nation. But that alone is not enough. The standard here is “stringent, requiring proof that [Sheriff Judd] disregarded a known or obvious consequence of his action.” Connick, 131 S.Ct. at 1360 (quoting Board of Comm’rs of Bryan City v. Brown, 520 U.S. 397, 410 (1997)). Plaintiffs do not mount a facial constitutional challenge to Sheriff Judd’s policies; on the contrary, they concede the force-continuum’s legality. This consequence is
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not without significance. The Eleventh Circuit has repeatedly dictated that “supervisory liability for deliberate indifference based on the implementation of a facially constitutional policy requires the plaintiff to show that the defendant had actual or constructive notice of a flagrant, persistent pattern of violations.” Goebert v. Lee County, 510 F.3d 1312, 1332 (11th Cir. 2007); see also Thomas v. Bryant, 614 F.3d at 1317 n.29; West v. Tillman, 496 F.3d 1321, 1329 (11th Cir. 2007) (the violations must be of continued duration rather than isolated occurrences). That is not yet the case. As stated, the reporting period is short, the number of flagrant instances are few, and Sheriff Judd’s appreciation of the risk for serious harm debatable. For these reasons, I conclude the Plaintiffs have not yet met the subjective component as to the danger pepper spray presents.39
V. Plaintiffs ask the court to certify a class of “all children under the age of 18, and all individuals who are under jurisdiction of the juvenile court regardless of age, who are or will in the future be incarcerated at the Polk County Jail.” (Doc. 5 at 1). Plaintiffs request class certification as to all five counts included in their third amended complaint (see Docs. 5, 137). Count One is against Judd only and alleges he failed to provide rehabilitative services to preadjudicated detainees in violation of the Eighth and Fourteenth Amendments. In Count Two Plaintiffs allege that Judd’s policies and practices have created unconstitutional
39 Plaintiffs do not meet the first requirement of injunctive relief, that of substantial likelihood of success on the merits of their claim. Therefore, I do not discuss the remaining three factors.
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conditions of confinement as to all of the juvenile detainees, in violation of the Eighth and Fourteenth Amendments. Plaintiffs allege in Count Three that Judd has violated the Eighth and Fourteenth Amendments through deliberate indifference to the mental health needs of juvenile detainees on suicide watch. Count Four is against Judd and Corizon and alleges they have been deliberately indifferent to Plaintiffs’ mental illnesses in violation of the Fourteenth Amendment. Finally, Count Five alleges that Defendants’ allegedly punitive use of isolation violates the Eighth and Fourteenth Amendments (Doc. 197).
Plaintiffs also request that the Court certify two subclasses, one subclass of preadjudicated juveniles at the jail as to Count One only and one subclass as to mentally ill juveniles at the jail (Docs. 5, 35). After considering the requirements of Fed. R. Civ. P. 23 and the evidence, I recommend that the court find class certification appropriate as to the main class and both subclasses.
A. Legal Standard Although Plaintiffs’ preliminary injunction motion is only addressed to Count Two, in analyzing the class certification issues, I must consider each of the five counts in Plaintiffs’ third amended complaint. Courts have broad discretion in determining whether to certify a class. Miles v. Am. Online, Inc., 202 F.R.D. 297, 301 (11th Cir. 2001). There is a presumption in favor of maintaining a class action, because class certification is always subject to modification later in light of case developments. Prado-Steiman v. Bush, 221 F.3d 1266, 1273 (11th Cir. 2000). Nonetheless, the court must engage in a “rigorous analysis” of the requirements of Fed. R. Civ. P. 23 before certifying a class. Vega v. T-Mobile USA, Inc.,
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Case 8:12-cv-00568-SDM-MAP Document 332 Filed 03/27/13 Page 49 of 61 PageID 9073
564 F.3d 1256, 1266 (11th Cir. 2009) (citation and quotations omitted). Pursuant to Fed. R. Civ. P. 23, the party seeking certification must demonstrate, first,
that: (1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class.
Fed. R. Civ. P. 23(a). Second, the proposed class must meet one of the requirements of Fed. R. Civ. P. 23(b). See Wal-Mart Stores, Inc. v. Dukes, et al., ___ U.S. ___, 131 S. Ct. 2541, 2548 (2011). Plaintiffs rely on Fed. R. Civ. P. 23(b)(2), which applies when “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Fed. R. Civ. P. 23(b)(2); Doc. 5 at 8.
Additionally, Fed. R. Civ. P. 23(c)(5) provides that “when appropriate, a class may be divided into subclasses that are each treated as a class.” Fed. R. Civ. P. 23(c)(5). Subclasses are deemed appropriate when there is “intraclass conflict.” Ortiz v. Fibreboard Corp., 527 U.S. 815, 864 (1999). Specifically, a court may divide a class when differences exist in the alleged interests of class members or when class members target different aspects of the defendants’ conduct. Prado-Steiman, 221 F.3d at 1281. As with class certification, the court has the ultimate discretion in determining whether subclasses are appropriate. Id. Subclasses must meet the same requirements as a class. See id.
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B. Standing As a threshold matter, before certifying a class the court must ascertain whether the individual named plaintiffs have constitutional standing to raise their claims. Miles, 202 F.R.D. at 302. It is not enough that a named plaintiff can establish a case or controversy between himself and the defendant, “each claim must be analyzed separately, and a claim cannot be asserted on behalf of a class unless at least one named plaintiff has suffered the injury that gives rise to that claim.” Id. (quoting Griffin v. Dugger, 823 F.2d 1476, 1483 (11th Cir. 1987)). The named Plaintiffs are the guardians of juveniles K.J., B.G., D.M., T.H., K.G., and J.P., and Jeremiah Davis and Frankie John-Pierre (who were juveniles when this case was filed but are now 18). All of the named Plaintiffs have standing to challenge the conditions of their confinement at the jail (Count Two), because they have all been detained at the jail and subjected to the same conditions, policies, and procedures. Plaintiffs have demonstrated that named Plaintiffs Frankie John-Pierre, Jeremiah Davis, T.H., and K.G. have standing to challenge the provision of rehabilitative services (Count One), because they are all under the jurisdiction of the juvenile court and allegedly were denied educational and health services. Named Plaintiffs B.G., K.J., and D.M., and T.H. have standing to challenge the use of isolation rooms at the jail (Counts Three and Five): according to Plaintiffs, they were confined to isolation rooms at the jail for an extended period of time and/or multiple times. Regarding Defendants’ provision of mental health services (Count Four), Plaintiff K.G. is incarcerated at the jail (or was when Plaintiffs filed their class certification motion) and
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suffers from mental illness. Thus, there is at least one named Plaintiff with standing to bring each claim.
Nonetheless, Defendants argue the named Plaintiffs lack standing because some of them are not presently incarcerated at the jail, rendering their claims moot. Standing and mootness are two separate doctrines that must be analyzed separately. Mootness is “premised on the policy that the courts should determine only ‘live’ controversies, [and] it requires that the plaintiff’s grievance continue throughout the entire litigation process.” Wright & Miller, 7AA Fed. Prac. & Proc. Civ. § 1785.1 at 2-3 (3d ed.). Defendants’ mootness argument overlooks the category of disputes that are “capable of repetition” while “evading review.” Turner v. Rogers, __ U.S. __, 131 S. Ct. 2507, 2514-15 (2011) (citation and quotations omitted). A dispute falls into this category and remains live if “(1) the challenged action [is] in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there [is] a reasonable expectation that the same complaining party [will] be subjected to the same action again.” Id. (citation and quotation omitted).
This is such a case. The jail population is constantly in flux; the average length of pretrial confinement is about 10 days (see Doc. 44 at 3). Indeed, the Supreme Court has found that imprisonment for up to 12 months is “in its duration too short to be fully litigated.” Turner, 131 S. Ct. at 2515. Further, class members by definition will at some point age out of the juvenile justice system. In other words, this case is particularly suitable for class certification since Plaintiffs’ claims are “inherently transitory” yet there is a “constant class of persons suffering” from the conduct. Olson v. Brown, 594 F.3d 577, 583
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(7th Cir. 2010). Plaintiffs therefore satisfy the “capable of repetition, yet evading review” mootness exception.40
C. Numerosity For a class size, “one may say that less than twenty-one is inadequate, more than forty is adequate, and numbers falling in between are open to judgment based on other factors.” Vega v. T-Mobile USA, Inc., 564 F.3d 1256, 1266-67 (11th Cir. 2009) (citation and quotation omitted). The Court has the discretion to make assumptions when determining the numerosity of a class. See Evans v. U.S. Pipe & Foundry, 696 F.2d 925, 930 (11th Cir. 1983). It is not necessary that the precise number of class members be known. Fuller v. Becker & Poliakoff, P.A., 197 F.R.D. 697, 699 (M.D. Fla. 2000). Plaintiffs must make reasonable and supported estimates as to the size of the proposed class. Id. Although the exact number of class members is uncertain, Plaintiffs satisfy the numerosity prong as to the main class. Captain Markham testified that at any given time, there are between 70 and 80 juveniles detained at the jail (Doc. 178 at 38:9-10). The juvenile wing of the jail actually has the capacity for up to 200 male and female juveniles. This is
40 To the extent Defendants contend that class certification is improper because some of the named Plaintiffs’ claims were mooted prior to this order, under these circumstances – where the named Plaintiffs had standing at the time Plaintiffs filed their class certification motion – class certification can “relate back” to the filing of the complaint. See Weiss v. Regal Collections, 385 F.3d 337, 348 (3d Cir. 2004). The Eleventh Circuit recognized this principle in Tucker v. Phyfer, 819 F.2d 1030, 1034 (11th Cir. 1987). In Tucker, the court denied the class certification motion when the only named plaintiff waited years after filing suit to move to certify a class, at which point he no longer had standing. Id. at 1032-33. Tucker acknowledged, however, that moot claims can “relate back” if the named plaintiff had standing at the time he moved for class certification. Id. at 1035.
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sufficient for numerosity purposes. See Cox v. Am. Cast Iron Pipe Co., 784 F.2d 1546, 1553 (11th Cir. 1986). Additionally, joinder is impracticable because the juveniles may by law be incarcerated for varying lengths of time, the jail population is constantly in flux, and the proposed class includes future members whose identities are unknown. See Kilgo v. Bowman Transp. Inc., 789 F.2d 859, 878 (11th Cir. 1986) (finding joinder impracticable where class included future and deterred job applicants who could not be identified).
Plaintiffs also ask the Court to certify a sub-class of juveniles who are under the sole jurisdiction of the juvenile court for the purposes of Count One, which alleges that Defendant Judd has failed to provide Plaintiffs with constitutionally-required rehabilitative services (Doc. 44 at 7). Detainees under the sole jurisdiction of the juvenile court comprise approximately 45 percent of the jail population of approximately 70-80 juveniles (or approximately 31-36 juveniles) (Doc. 117-5 at 4). Plaintiffs contend the class is actually much larger because it includes those who in the future will be detained at the jail under the sole jurisdiction of the juvenile court. Given the transitory and fluid nature of class membership, I find this number is sufficient to justify subclass certification.
Plaintiffs have not offered hard data specific to Polk County showing the number of Plaintiffs comprising the subclass of mentally ill juveniles. A plaintiff “bears the burden of making some showing, affording the district court the means to make a supported factual finding, that the class actually certified meets the numerosity requirement.” Vega, 564 F.3d at 1267. To that end, Plaintiffs contend “upon information and belief” the subclass of mentally ill juvenile inmates at the jail has approximately 35 members at any given time
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(Doc. 35 at 4), and their complaint identifies five juvenile inmates at the jail who suffer from mental illness (Doc. 197 at 17, 30) . Plaintiffs’ mental health expert mentions her review of 14 sets of medical records for mentally ill juvenile inmates (Doc. 263-1 at 4), and approximates based on national research that 65% of juveniles in detention settings suffer from mental illness. I am mindful that the numerosity requirement is not to be applied in a “yardstick fashion.” Armstead v. Pingree, 629 F.Supp. 273, 279 (M.D. Fla. 1986). Thus, Plaintiffs satisfy the numerosity prong as to the subclass of mentally ill juveniles.
D. Commonality Commonality “measures the extent to which all members of a putative class have similar claims.” Cooper v. Southern Co., 390 F.3d 695, 714, overruled on other grounds, Ash v. Tyson Foods, Inc., 546 U.S. 454, 457 (2006). The proof of commonality will necessarily overlap with the merits of Plaintiffs’ Eighth and Fourteenth Amendment arguments. See Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. at 2551-52. My discussion of Plaintiffs’ preliminary injunction motion details some of the conditions of confinement that are common to all juvenile inmates, both direct file and preadjudicated. With the exception of Counts One and Four (discussed in the next two paragraphs) Plaintiffs’ claims related to these conditions are capable of class-wide resolution: Plaintiffs seek permanent injunctive and declaratory relief that would enjoin allegedly unconstitutional behavior as applied to the entire class. Importantly, the questions of law are applicable in the same manner to each potential class member. See Miles, 202 F.R.D. at 302. Defendants emphasize the factspecific instances Plaintiffs include in their complaint. Commonality may be satisfied,
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however, despite factual differences between the claims of the named plaintiffs and the claims of the class at large.41 Prado-Steiman, 221 F.3d at 1279 n. 14. Each class member, if proceeding separately against Defendants, would need to meet the same test under the Eighth and Fourteenth Amendments to prevail. Moreover, Plaintiffs mention specific instances to illustrate Defendants’ patterns and practices at the jail.
Regarding Count One, which pertains to Defendant Judd’s alleged failure to provide rehabilitative services, certification of a subclass of detainees under the sole jurisdiction of the juvenile court is appropriate. Named Plaintiffs T.H., J.D., Franky John-Pierre, and K.G., who were under the jurisdiction of the juvenile court when Plaintiffs filed their class certification motion, seek to represent the subclass. The interests of the main class and this subclass are divergent as to this count. Florida’s statutory scheme for its juvenile justice system stresses rehabilitation rather than punishment (see Fla. Stat. § 985.601), and direct file inmates (who are prosecuted and sentenced as adults) are not guaranteed the same rehabilitative services. Both groups support the claims that Defendants have subjected them to various unconstitutional conditions of confinement. The proposed subclass, however, also targets a different aspect of Defendant Judd’s conduct. The subclass asserts that Defendant Judd is failing to provide them with the rehabilitative educational and treatment programs that are required under Florida’s statutory scheme. See Prado-Steiman, 221 F.3d at 1281 (noting that classes may be divided when differences exist in the alleged interest of class
41 Thus, Judd’s argument that class certification should be denied because the class definitions are overbroad and refer to a “wide variety of circumstances and conduct” lacks merit (see Doc. 26 at 2).
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members or when class members target different aspects of defendant’s conduct). The members of the subclass satisfy the commonality requirement because they all seek to enjoin the allegedly unconstitutional provision of rehabilitative services. The relief the subclass seeks will necessarily be different than the relief sought by the main class. Thus, subdivision of the class is appropriate.
As for the subclass of mentally ill juveniles, named Plaintiff K.G. seeks to represent the subclass as to Count Four, which alleges Defendants violated the Fourteenth Amendment by failing to provide juveniles with necessary mental health treatment. The common issues to this subclass include whether the policies and practices regarding the treatment of children with mental illness are unconstitutional. This subclass targets both Judd’s and Corizon’s provision of mental health services and focuses on the conditions of confinement particular to those suffering from mental illness. The type of mental illness each class member suffers from is irrelevant. Thus, subdivision of the class is appropriate as to mentally ill class members as to Count Four.
E. Typicality Typicality is satisfied where the named plaintiffs’ claims “arise from the same event or pattern or practice and are based on the same legal theory” as the claims of the class. Brown v. Sec’y, Dep’t of Corrections, No. 2:03-CV-526-FtM-29DNF, 2005 WL 1473817, at * 8 (M.D. Fla. June 21, 2005) (citation and quotations omitted). Typicality may be satisfied despite “substantial factual differences” when there is a “strong similarity of legal theories.” Murray v. Auslander, 244 F.3d 807, 811 (11th Cir. 2001) (citation and quotations
56

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omitted); see Miles, 202 F.R.D. at 302. “Although commonality and typicality constitute two distinct limitations on class certification under Rule 23, they tend to merge in practice.” Miles, 202 F.R.D. at 303. Typicality “refers to the individual characteristics of the named plaintiff in relation to the class.” Piazza v. Ebsco Indus., Inc., 273 F.3d 1341, 1346 (11th Cir. 2001).
Here, the named Plaintiffs of the main class have established that their claims are “typical” of other class members, namely those juveniles who have been detained at the jail and treated in accordance with same policies and practices there. Both direct file and preadjudicated juveniles are made to endure the same allegedly unconstitutional conditions of confinement. The named subclass Plaintiffs as to Count One also satisfy the typicality requirement, because their claims against Defendant Judd all refer to the rehabilitative treatment scheme. That there may be some factual differences between the exact conditions particular class members endured does not destroy typicality. The named subclass Plaintiff as to Count Four satisfies the typicality requirement as well. Although there are differences between subclass members as to the individual provision of mental health services, the policies and practices apply equally to all members of the subclass.
F. Adequacy of Representation Rule 23(a)(4) requires that the parties representing a class fairly and adequately protect the interests of the class. This requirement applies to both the named plaintiffs and counsel. London v. Wal-mart Stores, Inc., 340 F.3d 1246, 1253 (11th Cir. 2003). The purpose of the adequacy of representation requirement is to protect the legal rights of
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unnamed class members. This analysis “encompasses two separate inquiries: (1) whether any substantial conflicts of interest exist between the representatives and the class; and (2) whether the representatives will adequately prosecute the action.” Valley Drug Co. v. Geneva Pharms., Inc., 350 F.3d 1181, 1189 (11th Cir. 2003) (citation and quotations omitted). Plaintiffs have been subjected to the same allegedly unconstitutional conditions of confinement at the jail as the rest of the class, and their interests are not adverse to those of other class members. Plaintiffs’ counsel has demonstrated that they are adequately skilled and experienced to act as counsel for the class and subclass. Defendants do not dispute this. Accordingly, named Plaintiffs and their counsel are adequate representatives.
G. Fed. R. Civ. P. 23(b)(2) Plaintiffs also must satisfy one of the requirements of Fed. R. Civ. P. 23(b). Plaintiffs rely on Fed. R. Civ. P. 23(b)(2), which permits a class action to be maintained if “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” The requirements of Fed. R. Civ. P. 23(b)(2) are “almost automatically satisfied in actions primarily seeking injunctive relief.” Baby Neal for and by Kanter v. Casey, 43 F.3d 48, 59 (3d Cir. 1994) (citation omitted). In fact, “[t]his subdivision is intended to reach situations where a party has taken action or refused to take action with respect to a class, and final relief of an injunctive nature or of a corresponding declaratory nature, settling the legality of the behavior with respect to the class as a whole, is appropriate.” Fed. R. Civ. P. 23(b)(2), Adv. Comm. Notes (1966 Amendments). The class
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and subclasses both satisfy this requirement. I therefore recommend that the class and subclass certification motions be granted.
VI. This is a hard case. And my report does not mark an end of this litigation. Whether the evidence of fights and pepper spray events presented at the trial will dramatically change one way or the other from June 2012, which marks the approximate end of the proof period before me, is unclear. As of now, aside from the intense pain they suffered when exposed to the spray, an experience not to be minimized, none of the juveniles seem to have been substantially harmed except one. But that consequence should be of little solace to Defendants, for Plaintiffs need not show that a tragic event must occur before injunctive relief is appropriate. Farmer, 511 U.S. at 845. The governing standard in prison condition jurisprudence, as the Supreme Court recently underscored in Miller v. Alabama, a case treating juveniles differently than adults, is the “‘evolving standards of decency that mark the progress of a maturing society.’” 132 U.S. 2455, 2463 (2012) (quoting Estelle v. Gamble, 429 U.S. 97, 102 (1976)). The overwhelming view in Florida and the rest of the nation regarding the use of pepper spray in juvenile settings is at odds with Sheriff Judd’s practice. He would be wise to develop a plan for reducing the juvenile-on-juvenile violence and limiting the use of pepper spray (or adopt DJJ’s force continuum). See Farmer, 511 U.S. 846-47 (1994) (“a district court should approach issuance of injunctive orders with the usual caution . . . and may, for example exercise its discretion if appropriate by giving prison officials time to rectify the situation before issuing an injunction”) (internal citation omitted).
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Despite these comments, for the reasons stated in Part IV of this report, I recommend the District Judge deny the motion for preliminary injunction (Doc. 4).
And for the reasons stated in Part V of this report, I recommend that Plaintiffs’ motion to certify a class, a subclass of juveniles under the jurisdiction of the juvenile court, and a subclass of mentally ill juveniles (Docs. 5, 35, 137) be granted. I recommend the following class and subclass definitions:
Primary Class (as to all counts). All children under the age of 18, and all individuals who are under the jurisdiction of the juvenile court regardless of age, who are or will in the future be incarcerated at the Polk County Jail.
Subclass One (as to Count One). All individuals under the sole jurisdiction of the juvenile court who are or will in the future be incarcerated at the Polk County Jail.
Subclass Two (as to Count Four). All individuals who are under the age of 18, and all individuals who are under the jurisdiction of the juvenile court regardless of age, who suffer from mental illness and who are or will in the future be incarcerated at the Polk County Jail.
IT IS SO RECOMMENDED at Tampa, Florida on March 27, 2013.
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Failure to file written objections to the proposed findings and recommendations contained in this report within fourteen (14) days from the date of its service shall bar an aggrieved party from attacking the factual findings on appeal. 28 U.S.C. § 636(b)(1).
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 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION

CHANDA HUGHES, et al., Plaintiffs,
v. GRADY JUDD, et al.,
Defendants.

CASE NO.: 8:12-cv-568-T-23MAP /

ORDER
Through their guardians, seven juveniles detained at the Polk County jail sue
Polk County Sheriff Grady Judd, Captain Kim Marcum, and Major Michael Allen in
their official capacity. For themselves and on behalf of a putative class of juveniles
(“the detainees”), the seven juveniles (“the named detainees”) seek (through the
guardians) to enjoin alleged abuse and neglect occurring in violation of the Eighth
and the Fourteenth Amendments. Judd, Marcum, and Allen move (Doc. 25) to
dismiss.
The amended complaint (“the complaint”) (Doc. 3) states:
In 2011, the Florida Legislature passed Senate Bill 2112 [], a law that [] authorize[s] Counties to house children facing juvenile charges in county jails rather than in the custody of the Florida Department of Juvenile Justice []. Polk County Officials made the decision to expand the number of children in Sheriff Judd’s custody pursuant to this law.

Polk County is the only county in Florida to have taken over the detention of pre-adjudicated juveniles under jail standards based on an adult correctional model rather than the [more] protective juvenile justice standards . . . . Today, all [juveniles] who are incarcerated [] pending the resolution of charges against them in Polk County, whether charged as juveniles or adults, are [] at the Polk County Jail. The complaint includes an array of alleged grievances: The detainees at the
Polk County jail are often unguarded. In consequence, some of the detainees freely
intimidate, exploit, and injure others. Detainees suspected of contemplating suicide
lack medical care. None of the detainees receives age-specific schooling or
“necessary rehabilitative services” while waiting to appear in court. The guards taunt
and swear at the detainees and use pepper spray excessively. The named detainees
assert that the abuse constitutes a policy and creates liability under 42 U.S.C. § 1983.
For a putative class of (more or less) each juvenile now or later incarcerated at Polk
County jail, the named detainees seek a declaratory judgment that “the acts and
omissions of Defendant [presumably Judd] violate the U.S. Constitution” as well as
“a preliminary and permanent injunction requiring Defendant, his agents, employees
and all persons acting in concert with Defendant to cease their unconstitutional and
unlawful practices.”
Judd argues for dismissal primarily on the ground that the named detainees
“fail to conceal their actual agenda,” which, Judd says, is to challenge the
constitutionality of the law allowing Polk County to detain a juvenile at the Polk
County jail. According to Judd, the named detainees object not to the conditions of
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confinement but rather to the location of confinement that the new law permits. Judd claims that the named detainees must seek a writ of habeas corpus and sue the state of Florida.*
A few scattered lines in the complaint support Judd’s theory. For instance, the complaint declares that public safety will suffer a “crisis” and Polk County’s taxpayers might suffer “tremendous legal liability” unless the detainees are “removed from Sheriff Judd’s custody.” The named detainees respond, however, that the complaint describes and challenges particular conditions of confinement. These conditions, the named detainees contend, violate the law regardless of where they occur. At this stage each doubt resolves in the plaintiff’s favor, and Judd’s argument therefore fails.
Suing under Section 1983, the named detainees must allege “a policy or custom of deliberate indifference that le[ads] to the [constitutional] violation.” Craig
v. Floyd Cnty., Ga., 643 F.3d 1306, 1310 (11th Cir. 2011). Judd argues that the
complaint never establishes whether the alleged abuse constitutes an official policy or custom. Yet Judd concedes that the named detainees “ha[ve] interspersed throughout the [] complaint individualized allegations of harm.” A typical example
* To support his argument Judd misquotes State ex rel. Shevin v. Kerwin, 279 So.2d 836 (1973), as saying Florida “is a necessary party” to a constitutional challenge of a Florida statute. Kerwin says that “the State is a proper, but not necessary, party.” See also Mallory v. Harkness, 923 F.Supp. 1546, 1553 (S.D. Fla. 1996) (Ryskamp, J.), aff’d, 109 F.3d 771 (11th Cir. 1997) (table); Fla. East Coast Ry. Corp. v. Martinez, 761 F.Supp. 782, 784-85 (M.D. Fla. 1991) (Black, J.); 48A FLA. JUR. 2D STATE OF FLORIDA § 61 (2012).
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states, “in January 2012, D.D., one of the incarcerated girls, witnessed guards pepper spray a mentally ill girl on suicide watch for sitting on a table instead of on her bed and refusing to move to her bed when told.” With equal or greater (sometimes much greater) detail, the complaint alleges a dozen more sprayings, plus several other acts of potentially unlawful abuse, inflicted on a population of seventy or so detainees in a span of five months. Said another way, the named detainees allege a pattern – a custom – of allowing unlawful harm.
Absent an adjudication of guilt, a detainee suffers no ‘punishment’ – cruel, unusual, or otherwise. Bell v. Wolfish, 441 U.S. 520, 535 (1979); Ingraham v. Wright, 430 U.S. 651, 664-66 (1977). Judd next proposes that the complaint may not invoke the Eighth Amendment because no named detainee stands convicted of a crime. Actually, the complaint alleges that one named detainee awaits sentencing. That person, at least, might invoke the Eighth Amendment. The authority conflicts. See Tilman v. Prator, 368 F.3d 521, 523-24 (5th Cir. 2004); Lewis v. Downey, 581 F.3d 467, 473-74 (7th Cir. 2009). Under the sounder logic, “the critical juncture is conviction.” Resnik v. Hayes, 213 F.3d 443, 448 (9th Cir. 2000). A pre-trial detainee is a suspected law-breaker; a sentenced prisoner is an adjudged law-breaker; a freshly convicted prisoner is more than halfway between the other two. The parties agree both that the “vast majority” of the detainees await trial and that the pertinent Eighth and Fourteenth Amendment standards differ little, if at all, see City of Revere v. Mass. Gen.
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Hosp., 463 U.S. 239, 244 (1983); Marsh v. Butler Cnty., Ala., 268 F.3d 1014, 1024 n.5 (11th Cir. 2001), but for now the Eighth Amendment stays.
The state of Florida may charge a teenager accused of a serious crime such as murder or robbery as an adult. Kirkland v. State, 67 So.3d 1147 (Fla. 1st DCA 2011). Nothing in the complaint conveys which allegedly abused detainees are charged as an adult and which are charged as a juvenile. Although Judd wants to know how each detainee is charged, he never coherently explains why his not knowing should compel dismissal.
Finally, Judd contends that an action against him in his official capacity renders an action against Captain Marcum and Major Allen in their official capacity redundant. The complaint mentions Judd often, mentions Marcum or Allen rarely, and demands relief from only one defendant, apparently Judd. More to the point, “an official-capacity suit is, in all respects other than name , . . a suit against the entity [that the officer serves]. It is not a suit against the official personally, for the real party in interest is the entity.” Kentucky v. Graham, 473 U.S. 159, 166-67 (1985) (emphasis removed); Cook v. Randolph Cnty., Ga., 573 F.3d 1143, 1149 (11th Cir. 2009). An action against Judd in his official capacity and an action against Marcum or Allen in their official capacity both function as an action against whomever Judd, Marcum, and Allen each serve.
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Whom do they serve? No record evidence reveals the correct entity. Polk County seems the obvious answer. Doubt remains nonetheless. Compare Gray v. Kohl, 568 F.Supp.2d 1378, 1393 (S.D. Fla. 2008) (Moore, J.) (“a Florida county Sheriff [ordinarily] acts as an arm of the county”), with Jones ex rel. Albert v. Lamberti, 2008 WL 4070293, *2-*5 (S.D. Fla. 2008) (Cooke, J.) (“the county does not control the Sheriff with respect [to the operation of jails]; therefore, the county cannot be liable under [Section] 1983”). At any rate, Marcum and Allen serve Judd or serve under Judd. Either way, only Judd needs to remain in the action. See Gray, 568 F.Supp.2d at 1385 n.1; Schubert v. City of Rye, 775 F.Supp.2d 689, 699-700 (S.D.N.Y. 2011).
The named detainees argue that Marcum and Allen must remain because the amount of authority they hold “presents a question of fact” requiring discovery. But in an “official-capacity” action Marcum and Allen’s unlawful policy decisions, if any, create liability only for the entity Marcum and Allen serve. See Graham, 473 U.S. at 167 & n.14; Pino v. City of Miami, 315 F.Supp.2d 1230, 1244-45 (S.D. Fla. 2004) (Altonaga, J.); Engelleiter v. Brevard Cnty. Sheriff’s Dept., 290 F.Supp.2d 1300, 1309 (M.D. Fla. 2003) (Glazebrook, J.); see also Triplett v. Dist. of Columbia, 108 F.3d 1450, 1453-54 (D.C. Cir. 1997). Although the named detainees need to find an official who orders or allows the alleged abuse, Marcum and Allen need not wait through the search for that indispensable official. They can go.
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The motion (Doc. 25) is GRANTED in that the action against Marcum and against Allen is DISMISSED. The motion is otherwise DENIED.
ORDERED in Tampa, Florida, on May 4, 2012.
Steven D. Merryday _________________________________ STEVEN D. MERRYDAY UNITED STATES DISTRICT JUDGE
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 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION

CHANDA HUGHES, as guardian and on behalf of J.B., a minor, et al.,
Plaintiffs,
v.
GRADY JUDD, Polk County Sheriff in his official capacity, et al.,
Defendants. ____________________________________/

CASE NO. 8:12-cv-568-T-23MAP

ORDER The magistrate judge submits a report (Doc. 332) and recommends both denial of the plaintiffs’ motion for a preliminary injunction and certification of a class and two sub-classes. Both the plaintiffs (Doc. 348) and the defendants (Docs. 344 and 350), each from their respective vantage, object to the report and to the recommendation. After an exhaustive review, the magistrate judge’s recommendation for denial of the plaintiffs’ motion for a preliminary injunction is adopted, and the magistrate judge’s recommendation to certify a class and two subclasses is adopted, although re-stated. Because of the denial of the plaintiffs’ motion for preliminary injunction, a detailed determination is unnecessary with respect to the defendants’ several

objections to the part of the report directed to the preliminary injunction. In other words, the plaintiffs’ requested injunction is denied whether the defendants’ objections are granted or denied. Nonetheless, at least some of the defendants’ objections present important issues for resolution at trial. For example, Judd’s objection “A” contests the magistrate judge’s assessment of, and conclusions about, the defendants’ detention facility without the plaintiffs’ establishing a reliable and sufficient array of data from comparable facilities (or otherwise evidencing valid comparators for the challenged facility).
Also, the plaintiffs’ objections, which are directed primarily at the magistrate judge’s finding that the plaintiffs have not sufficiently established the “subjective component” of their claim, are overruled. The magistrate judge’s determination with respect to the “subjective component” is sufficiently supported on the present record, although the record is limited by the brief time for which data are available and includes some newly instituted measures by the Sheriff to improve juvenile detention conditions.
Similarly, the magistrate judge’s recommendation to certify a class and two sub-classes is adopted, but in behalf of clarity and ease of administration the definition of each class is somewhat re-stated. The defendants’ objections to the class and the sub-classes are overruled. For Counts Two, Three, and Five, a class is certified to comprise each person who is under eighteen or who is under the
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jurisdiction of the juvenile court and who is now or in the future incarcerated in the Polk County Jail.* As to Count One, Sub-Class One is certified to comprise each person who is under the jurisdiction of the juvenile court (that is, including preadjudicates and excluding direct files) and who is now or in the future incarcerated in the Polk County Jail. As to Count Four, Sub-Class Two is certified to comprise each person (1) who is now or in the future incarcerated in the Polk County Jail, (2) who is under eighteen or under the jurisdiction of the juvenile court, and (3) who suffers from a “mental disorder.” For the purpose of this Sub-Class Two, a person who suffers from a “mental disorder” is defined as a person (1) who is diagnosed by a mental health care professional, qualified in Florida both to diagnose mental disorders and to prescribe psychotropic medication, and who is suffering from a “moderate” or “severe” “mental disorder,” as defined in the American Psychiatric Association’s DSM-IV and (2) whose current diagnosis, including any prescription for psychotropic medication, appears in the person’s “intake” records presented to the Polk County Jail at the time the person is presented to, and accepted by, the Polk County Jail for detention.
The trial of this action will occur before a fact finder different from the fact finder at the hearing on the preliminary injunction, the final determination of this action will depend on findings of fact and conclusions of law based on the trial
* “Polk County Jail” is defined at n.5 on page 7 of the magistrate judge’s report and recommendation (Doc. 332).
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record, and the magistrate judge’s report and recommendation and the limited record presented at the hearing on the preliminary injunction will recede from consideration. At the hearing on the preliminary injunction and in the attendant papers, each party presents some telling points, some successful on the present record and some not, with respect to each of the issues presented to the magistrate judge. The parties are cautioned to remain mindful of the opposing arguments and to prepare accordingly and thoroughly for the trial.
CONCLUSION The plaintiffs’ objections (Doc. 348) and the defendants’ objections (Docs. 344 and 350) are OVERRULED. The magistrate judge’s report and recommendation is ADOPTED only to the extent and in the manner stated in this order. The plaintiffs’ motion for a preliminary injunction (Doc. 4) is DENIED. The plaintiff’s motions to certify a class (Docs. 2, 5, 35) are GRANTED only to the extent and in the manner stated in this order. ORDERED in Tampa, Florida, on April 30, 2013.
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 Case 8:12-cv-00568-SDM-MAP Document 113 Filed 08/13/12 Page 1 of 4 PageID 1220

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION

CHANDA HUGHES, et al., Plaintiffs,
v. GRADY JUDD, et al.,
Defendants.

CASE NO.: 8:12-cv-568-T-23MAP /

ORDER In a motion (Doc. 77) to dismiss, Corizon Health, Inc., questions whether K.G. exhausted the administrative remedy at the Polk County jail before beginning (her portion of) this action. A July 27, 2012, order (Doc. 98) directs K.G. and Corizon to submit additional briefing. The supplemental briefs reveal at least one factual dispute – whether K.G. grieved to a specific guard at the jail – that compels a hearing. A resolution of the factual dispute, or of whichever dispute resolves the exhaustion issue, will initially rest with the magistrate judge. First, however, Corizon’s motion to dismiss raises other matters, which this order briefly addresses. The alleged failure to exhaust aside, Corizon seeks dismissal on the grounds that K.G. cannot obtain a class certification, that K.G. cannot obtain a preliminary injunction, and that K.G. fails to state a claim against Corizon. Two of the three

Case 8:12-cv-00568-SDM-MAP Document 113 Filed 08/13/12 Page 2 of 4 PageID 1221
grounds immediately founder – neither a defective class allegation nor a defective preliminary injunction request justifies dismissing a complaint.
The second amended complaint (“the complaint”) alleges that K.G. suffers several mental illnesses and that K.G. needs properly administered medication to prevent, among other problems, extreme drowsiness, erratic behavior, and suicidal urges. The jail allegedly deprived K.G. of medication for three days at the end of March, 2012, while K.G. was subjected to a suicide watch. Although K.G. allegedly uses extended-release pills that she must swallow whole, the medication K.G. later received was crushed. The complaint names several other detainees who allegedly both suffer a mental illness and received necessary medication only irregularly. K.G. sues Corizon under 42 U.S.C. § 1983 for deliberate indifference to K.G.’s serious medical needs in violation of the Eighth and the Fourteenth Amendments.
Corizon claims that K.G. never alleges pertinent facts and never states the harm caused by a missed or a crushed dose of medicine. Reading the complaint refutes both claims. Corizon contends that the jail must crush each pill to prevent a detainee’s using a pill as currency and that, in any case, wrongly crushing medication constitutes mere negligence. At present no legal authority and no factual submission establishes either the necessity of crushing or the harm of crushing. Corizon asserts that K.G.’s action “amounts to nothing more than a state medical negligence claim” for which K.G. must file a pre-suit notice in accord with Florida law. Again Corizon
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Case 8:12-cv-00568-SDM-MAP Document 113 Filed 08/13/12 Page 3 of 4 PageID 1222
merely reads the complaint in the light most amenable to the defendant. See also Patsy v. Bd. of Regents of the State of Fla., 457 U.S. 496 (1982).
For support Corizon cites Craig v. Floyd County, Ga., 643 F.3d 1306 (11th Cir. 2011), and Mann v. Taser International, Inc., 588 F.3d 1291 (11th Cir. 2009). Craig holds that alleging only one wrongful act by a jail establishes no custom triggering municipal liability under Section 1983. K.G.’s complaint, however, alleges that Polk County jail neglected the medical needs of several detainees. Mann addresses a summary judgment in favor of deputy sheriffs who allegedly failed to seek sufficient medical attention for a delirious arrestee. By itself, at least, Mann says nothing that helps a motion to dismiss an action about the dispensing of medication at a jail.
K.G. evidently stayed at Polk County jail as a pre-trial detainee. In consequence Corizon seeks to dismiss K.G.’s Eighth Amendment claim, as only a convicted prisoner can suffer cruel and unusual punishment. (Doc. 43 at 4) K.G. never denies that she was a detainee rather than a prisoner; she instead explains that, because the sub-class she wants to represent might include prisoners, the Eighth Amendment claim should remain “to ensure that all class members are protected.” This approach fails to establish the vitality of the Eighth Amendment claim but, incidentally, succeeds at suggesting K.G. cannot represent the putative sub-class. To represent a class a plaintiff must enjoy standing to raise each of the class’s claims. Wooden v. Bd. of Regents of the Univ. Sys. of Ga., 247 F.3d 1262, 1287-88 (11th Cir. 2001); see also Hawkins v. Compact-Cassani, 251 F.3d 1230, 1238 (9th Cir. 2001)
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Case 8:12-cv-00568-SDM-MAP Document 113 Filed 08/13/12 Page 4 of 4 PageID 1223
(decertifying a class because the prisoner class representative could not pursue the detainee class members’ claim).
The parties present no authority showing whether three days without the medication at issue followed by receipt of the medication crushed can equal a constitutionally serious harm. K.G.’s claim appears plausible and proceeds for that reason alone. Accordingly, the motion (Doc. 77) to dismiss is DENIED, except that the Eighth Amendment portion of Count 4 is DISMISSED. The matter of K.G.’s exhaustion of her administrative remedy is REFERRED to the magistrate judge for a hearing and a report and recommendation. K.G. and Corizon’s motions (Docs. 109, 110) to submit documents are GRANTED.
ORDERED in Tampa, Florida, on August 13, 2012.
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 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION

CHANDA HUGHES, et al., Plaintiffs,
v. GRADY JUDD, et al.,
Defendants. __________________________________/

CASE NO. 8:12-cv-568-T-23MAP

CONCLUSIONS OF LAW AND FINDINGS OF FACT
[U]nder the Constitution, the first question to be answered is not whose plan is best, but in what branch of the Government is lodged the authority to initially devise the plan. This does not mean that constitutional rights are not to be scrupulously observed. It does mean, however, that the inquiry of federal courts into prison management must be limited to the issue of whether a particular system violates any prohibition of the Constitution . . . .
Bell v. Wolfish, 441 U.S. 520, 562 (1979).
This is an action by several juveniles, as representatives of other juveniles
similarly situated, asserting that Grady Judd, in his capacity as Sheriff of Polk
County, Florida, and Corizon Health, Inc., a health care provider retained by the
Sheriff, violated the juveniles’ rights under the Fourteenth Amendment during the
juveniles’ detention at the Central County Jail (CCJ) in Bartow, Polk County,
Florida. The action began in March 2012 with a complaint (Doc. 1), an amended
complaint (Doc. 3) a few days later, and a simultaneous motion for preliminary

injunction, which was denied after an evidentiary hearing before the magistrate judge (Docs. 332 and 364).
The bench trial of this action began on November 18, 2013, and concluded on December 18, 2013. The action was tried on the five counts appearing in the third amended complaint (Doc. 197). Each count alleges a violation of the Fourteenth Amendment. Count I alleges a constitutional violation based on the Sheriff’s allegedly failing to provide the juveniles in detention with “rehabilitative services.” Count II alleges a constitutional violation based on the Sheriff’s alleged failure to protect the plaintiffs from harm, the Sheriff’s alleged application to the plaintiffs of “unlawful force,” the Sheriff’s alleged subjection of the plaintiffs to “unreasonable restraints,” and the Sheriff’s alleged creation of “dangerously violent conditions of confinement.” Count III alleges a constitutional violation based on the Sheriff’s alleged placement of juveniles on “suicide watch” into “punitive isolation without penological justification” and based on the Sheriff’s alleged “deliberate indifference” to the “mental health needs” of juveniles in detention. Count IV alleges a constitutional violation based on the Sheriff’s and Corizon’s alleged failure to provide the plaintiffs “necessary mental health treatment,” the alleged subjection of the plaintiffs to “punitive, harmful conditions of confinement,” and the alleged “deliberate indifference to serious medical needs.” Count V alleges a constitutional violation based on the Sheriff’s and Corizon’s subjection of the plaintiffs to isolation in a disproportionately punitive manner with “deliberate indifference.” The third
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amended complaint concludes with a demand for class certification, for a declaration of the unconstitutionality of the defendants’ conduct, for temporary and permanent injunctive relief, and for an award of an attorney’s fee and statutory costs. In the order recommending denial of the preliminary injunction, the magistrate judge recommended certifying a “primary class” for all counts of the complaint, a sub-class for Count I, and a sub-class for Count II. With modifications, the district judge certified the recommended primary class and the two sub-classes (Docs. 364 and 500).
Each claim in the complaint asserts a violation of the Fourteenth Amendment. The complaint includes no state constitutional claim, no federal or state statutory claim, and no state law tort claim. The plaintiffs present five federal constitutional claims, each governed solely by the federal constitutional standards that govern a claim under the Fourteenth Amendment.
Therefore, in the concluding minutes of the month-long bench trial in this action and with an acute awareness that the parties harbored distinctly different and probably irreconcilable understandings of the constitutional standard governing the disposition of the plaintiffs’ five claims under the Fourteenth Amendment, the parties were directed to explain in their post-trial proposed findings of fact and conclusions of law precisely their respective understanding of the governing constitutional standard:
I need you to tell me exactly . . . each applicable constitutional standard that . . . has been violated or infringed . . . by a defendant. And I need you to identify . . . the accepted means or method or test to
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ascertain compliance with that standard. In other words, articulate the standard and articulate the test. And I would urge you to include your strongest citations of authority to support those standards.
SOME PRELIMINARY OBSERVATIONS The parties submitted lengthy proposed findings of fact and conclusions of law, in sum comprising more than 450 pages, divided more or less evenly between the plaintiffs and the two defendants. This order begins with an evaluation of the plaintiffs’ proposed findings of law, which consume only twenty pages in the plaintiffs’ initial proposed findings but which require an analysis of nearly ninety pages in this order (the reply contains a few miscellaneous citations but the content fails to warrant extending this already brutally lengthy paper). In general, although acceptance of the plaintiffs’ proposed constitutional standard is essential to the plausibility of the plaintiffs’ claims, the plaintiffs’ proposed legal standards are decidedly and demonstrably not the law of the land and constitute an aggressive and novel undertaking to insert the federal judiciary forcefully into the administration of a county’s juvenile detention in a manner and to an extent without warrant, without precedent, and without bounds. The plaintiffs offer in defense of this proposed intervention both a flawed interpretation of the pertinent precedent and a nearly uniform reliance on decisions that are either not binding, not applicable, not persuasive, or not — for example, in the citation as authority of a settlement — precedent at all. Although the law of the Supreme Court and the Eleventh Circuit is
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plentiful, accessible, and precisely governing, the plaintiffs largely choose to look elsewhere for guidance.
The discussion of the plaintiffs’ view of the law is followed in this order by a discussion of the Sheriff’s and Corizon’s view of the law. The plaintiffs’ view of the law is generally wrong, and the defendants’ view is generally right. This order’s discussion of the law exceeds a hundred pages but serves to vividly detail the basis for the conclusion offered in the preceding sentence and serves to illustrate unmistakably the circumstances — the history, the particulars, the tangibles — in which and to which the Fourteenth Amendment requires remedial action by the judiciary. Stated differently, the following discussion includes an illustrative summary of the facts in many of the cases discussed, and these summaries serve to exemplify correctly the circumstances that trigger (or not) the force of the Fourteenth Amendment. To encapsulate the conclusion of this order, the circumstances at CCJ are comfortably and distinctly outside the circumstances that implicate the Fourteenth Amendment.
* * * After the extended discussion of the law, this order includes an extended finding of fact, including findings pertinent to the “expert” testimony received at trial. Again, in general, this order finds facts consistent with the defendants’ proposed findings and inconsistent with the plaintiffs’ proposed findings. However, in one sense, a resolution of many of the conflicts between the proposed findings of fact is unnecessary because, once the proper constitutional
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standard is understood and the facts necessary to prompt remedial action by the judiciary under the Fourteenth Amendment are properly appreciated, the insufficiency of the plaintiffs’ presentation — although lengthy and tenacious and inclusive of every arguable episode, great and small — becomes manifest and dispositive. In fact, the conditions of juvenile detention at CCJ are not consistent with the plaintiffs’ dark, grim, and condemning portrayal.
* * * The plaintiffs insist that the level of fighting in juvenile detention at CCJ, say, two “fights” per week, is unconstitutional. But even after immense and determined discovery, litigation assistance by “experts,” and weeks of trial, the plaintiffs’ characterization of the level of violence at CCJ remains wholly impressionistic because the plaintiffs offered no data from comparable facilities. For all that the evidence in this action proves, the two “fights” per week among eighty to a hundred teenage detainees living in close quarters at CCJ might constitute a historic high or a historic low. From the record, one cannot know; the omission by the plaintiffs is purposeful. The plaintiffs’ failure to adduce comparable data is curious, indeed. If comparable data exists, a purposeful failure to introduce the data is most suggestive. If the data is non-existent, the plaintiffs’ hypothesis is without foundation. And, of course, the data would depend on what counts as a “fight,” especially when the count of “fights” occurs in an action attempting to invoke the force of the
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Constitution. This order is not required to define what counts as a constitutional “fight,” but this order finds that the plaintiffs’ have established no definition, proffered no reliable count for CCJ, and provided no comparable data from elsewhere.
This absence of empirical substance in the plaintiffs’ presentation on “fights” leaves the court in the posture of a hypothetical person who has no knowledge of baseball; who is told that a player, say, Babe Ruth, failed to hit successfully in about seven of every ten at-bats; and who is asked to decide what quality of batter Ruth was. Absent comparable data, the hypothetical person is without a rational means to judge, and the fact of seven outs in every ten at-bats is intrinsically neither a “Hall of Fame” performance nor a pathetic flop. Similarly, considered in isolation, the occurrence of two “fights” per week (however defined or if not defined at all, as in this instance) permits no informed and rational conclusion. (This judge’s impression is that two “fights” per week is an admirably low to typical number among a large group of teenagers, almost all male, who qualify in Florida for juvenile detention.)
* * * The plaintiffs suggest at times that the constitutional standard governing the detention of a juvenile is more demanding than the constitutional standard governing the detention of an adult. Although that generalization enjoys an initial appeal and although a few cases say something akin to that, a moment’s reflection (and attention to the governing precedent) confirms that the constitutional standard for the
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detention or incarceration of an adult and a juvenile is the same. Of course, if some condition (one does not readily suggest itself) that might not present a substantial risk of serious harm to an adult in detention nonetheless presents a substantial risk of serious harm to a juvenile in detention, the Fourteenth Amendment might require the reduction of the risk until the risk is no longer substantial or might require the mitigation of the prospective harm until the harm is no longer serious. In sum, although (arguably) the conditions of confinement necessary to create a substantial risk of serious harm for an adult might differ from the conditions of confinement that create a substantial risk of serious harm to a juvenile (again, an example is elusive), the stated constitutional standard is constant. Between the confinement of an adult and the confinement of a juvenile, the specific facts necessary to meet the constitutional standard might change, but the expression of the constitutional standard remains the same. No disinterested and authoritative observer contends otherwise.
* * * The Sheriff has argued from the start and has maintained convincingly that, although each purports to allege a violation of the Fourteenth Amendment, the plaintiffs’ claims never acknowledge or account to the governing constitutional standard for the conditions of juvenile detention. The Sheriff argues, again convincingly, that the plaintiffs strive to avert the Constitution by substituting for the governing constitutional standard an impromptu, improvised standard equivalent to
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“best practices” as understood at and for the moment by persons who are, in effect, professional advocates and critics, that is, persons other than the corrections and detention professionals whose professional judgment receives under the governing constitutional law a strong presumption of correctness and whose supervision is subject to judicial intervention under the Fourteenth Amendment only in the extraordinary circumstance. Suffice to say that, if the Fourteenth Amendment requires intervention into the management of the juvenile detention facility that the Sheriff operates at CCJ, the Fourteenth Amendment requires a wholesale intervention into detention and incarceration at most of the facilities in the United States, an intervention possible only by an unprecedented and precipitous lowering of the constitutional threshold.
* * * On March 15, 2012, less than six months after the Sheriff for the first time opened a juvenile detention facility and for the first time managed juveniles in detention, the plaintiffs sued and alleged the Sheriff’s violation of the Fourteenth Amendment rights of every inmate — past, present, and future — by his allegedly deliberate indifference to a widespread and pervasive pattern of substantial risks of serious harm to the juveniles. Throughout the litigation, the plaintiffs have conceded that the present operation of juvenile detention at CCJ improves on the operation of CCJ during the first few months. But the plaintiffs — often obliquely, sometimes bluntly — claim that this litigation, not the Sheriff’s management at the facility, was
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the motive force behind the improvements implemented at CCJ during the interval between March 2012 and November 2013.
However, with a new facility, with a new staff, and with a new set of policies, the Sheriff’s undertaking a new responsibility inevitably led to a time of trial and error, adjustment and re-adjustment, experiment and improvement. A litigant who chooses to sue an incipient enterprise — an enterprise with no discernible patterns and no established culture — always can launch a colorable claim to credit for every improvement that occurs during the pendency of the litigation, even if the improvement would otherwise have occurred (possibly even sooner). The potential of this colorable claim offers an unhealthy incentive to a litigant to sue an incipient enterprise preemptively and before the natural course of events leads to a better, more efficient, more responsive operation. Throughout the entire life of juvenile detention at CCJ, minus the first few months, anything the Sheriff might change was susceptible to the claim that without this litigation the change would not have occurred.
In the instant case, the evidence shows that the Sheriff has engaged in a prudent, steady course of management, including a series of changes that have improved the operation of the facility in accord with experience and the recommendations of those with hands-on responsibility for juvenile detention. Except for the accident of timing and the seductive appeal of the fallacy of false cause — post hoc ergo propter hoc — nothing in the credible evidence supports the
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notion that any improvement that has occurred was motivated by an attempt to evade liability in the litigation or that any improvement will disappear if the litigation terminates.
A suit against an incipient enterprise typically implies competing inferences. One can infer that every improvement at the facility was a disguised defense to liability. But, on the other hand, one can infer that inquiring lawyers, probing “monitors,” and consulting psychiatrists, all of whom interview juveniles, examine records, conspicuously tour the facility, and generate “talk” among the juveniles, create an adversarial atmosphere between inmates and deputies and add an additional edge to each episode of disobedience or disruption in the facility. Although both inferences are “in the air” in this action, the evidence justifies neither and this order rejects both.
* * * Lastly, as anyone who has visited a jail or prison well knows, the lamentable sight of humans deprived of liberty and confined together in a facility — the sight of humans whose life has gone wrong for some reason or reasons and whom the community must restrain or, at least, detain — triggers a strong emotional response. The sight of a person under eighteen in detention, wearing a prisoner’s gown, awaiting a trial, and coming to grips with consequences and circumstances almost always beyond their effective capacity, triggers an even stronger visceral response, including an impulse to rescue the juvenile from the circumstance and from the
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juvenile’s own poor, even destructive, choices (or those of others). No one wants any of these juveniles to be where they are, to have done what they have done (probably), and to continue on the course they are on. That some are defiant, aggressive, and enduringly turbulent or, at least, mischievous and provocative, renders their safe and peaceful management complex. Of course, a few are introverted, withdrawn, and often vulnerable, which complicates safe and peaceful detention even further. No one — certainly no one whose words appear in this record (or whose words this judge has seen or heard) — knows demonstrably the best balance of results and resources between the field of “corrections” (broadly construed — in this one instance — to include juvenile detention) and other fields of government responsibility (for example, care for wounded veterans; care for the disabled, including innocent children with special needs; care for the aged; the provision of housing; the improvement of education). Nor is the best formula for the allocation of public resources discernible (or even “discoverable”) in the Fourteenth Amendment. Viewed from one vantage, the plaintiffs’ objective in this action is to focus the court’s attention on the juveniles in CCJ, to divert the court’s attention from the balance of the many other acute and competing needs of society, to induce the court to focus fixedly on a single need, and to provoke a command — all other prospective and deserving recipients aside — that additional public resources accrue to the juvenile detention facility run by the Sheriff in Bartow. The call is for more and better supervision; more and better deputies; more and better psychiatrists and
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psychologists; more and better nurses and social workers; more and better teachers and counselors; more and better record-keeping, reporting, and compilation; and, in all other respects, more and better and more and better — “for the children.”
But the allocation of public resources is the solemn business of the legislative branch, which can balance, appropriate, assess, balance again, appropriate again, assess again and so forth — in pursuit of the optimum feasible accommodation of competing demands. The courts and the Fourteenth Amendment can preempt the legislative branch only if a challenged circumstance falls demonstrably below a constitutionally permissible minimum. The juveniles deserve and should have more — perhaps, quite a bit more — than the constitutionally permissible minimum. Nonetheless, the Fourteenth Amendment is reserved for the protection of a detainee whose circumstance is below the constitutionally permissible minimum, which is patently not the case in juvenile detention at CCJ — despite any intermittent flareups, any episodic delays in medical or mental health treatment, any occasional overreaction or inattention by deputies, and the like. In design and implementation, the overall regulatory program by the Sheriff at CCJ is well above the constitutionally permissible minimum (and safely below perfection). As explained in Reno v. Flores, 507 U.S. 292, 304–05 (1992), in connection with a circumstance involving the care of youthful immigrants:
“The best interests of the child” is . . . not an absolute and exclusive constitutional criterion for the government’s exercise of the custodial responsibilities that it undertakes, which must be reconciled with many other responsibilities. Thus, child-care institutions operated by the State are not constitutionally required to be funded at such a level as to
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provide the best schooling or the best health care available . . . . Minimum standards must be met, and the child’s fundamental rights must not be impaired; but the decision to go beyond those requirements — to give one or another of the child’s additional interests priority over other concerns that compete for public funds and administrative attention — is a policy judgment rather than a constitutional imperative.
THE PLAINTIFFS’ DISCUSSION OF THE CONSTITUTIONAL STANDARD The plaintiffs begin their discussion of the constitutional standard in paragraph
304 of the proposed findings and conclusions (Doc. 529 at 110) by offering the
undisputed notion that the Fourteenth Amendment protects a person’s “‘historic
liberty interest’ in personal safety, freedom from unreasonable restraints, and such
services as are required to safeguard those interests” during a term of detention.
Also, the plaintiffs stipulate that the state lacks “the power to punish . . . until after
[the state] has secured a formal adjudication of guilt in accordance with due process
of law.” The parties’ common understanding of the applicable constitutional
standard ends there.
Paragraph 305 asserts one of the plaintiffs’ basic principles, the claimed
authority for which is Youngberg v. Romeo, 457 U.S. 307 (1982). The plaintiffs say:
Under the Fourteenth Amendment analysis, when conditions of confinement reflect a “substantial departure from accepted professional judgment, practice, or standards,” they violate the Constitution. Youngberg, 457 U.S. at 323.
(Doc. 529 at 110, ¶ 305)
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A complementary principle immediately follows in the plaintiffs’ paragraph 305, which cites Trop v. Dulles, 356 U.S. 86, 101 (1958), to the effect that the “scope” of the constitutional protections afforded to a detainee “draws its meaning from the evolving standards of decency that mark the progress of a maturing society.” Because the plaintiffs, directed to provide the “strongest citations of authority,” cite only Youngberg and Trop to support the plaintiffs’ expression of the governing constitutional standard, a close inspection of Youngberg and Trop provides not only an assay of the plaintiffs’ constitutional hypothesis but a graphic example of the plaintiffs’ technique, recurrent in their discussion of constitutional principle, of plucking words from the defining context in a pertinent authority and transporting the words to a more expansive, more pliable, and more favorable setting, free of the defining context. First to Youngberg, next to Trop.
As stated above, the plaintiffs in the proposed conclusions of law cite Youngberg for the proposition that the Fourteenth Amendment:
protects a person’s “historic liberty interest” in personal safety, freedom from unreasonable restraints, and such services as are reasonably required to safeguard those interests when one is detained against his will by the State for reasons other than punishment. (Doc. 529 at 110, ¶ 304) More precisely, the plaintiffs cite to two pages in Youngberg, 415 U.S. at 315 and 324. A telling glance first at page 315 reveals words that echo the principle that the plaintiffs attribute to Youngberg. However, the words — “a constitutionally protected liberty interest in safety, freedom of movement and training within the institution” — follow the phrase “he argues,” which means “he
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[Romeo] argues . . . .” The principle for which the plaintiffs cite Youngberg is not the court’s statement of the law but the court’s summary on page 315 of Romeo’s argument. Also on page 315, another sequence of words appears that echos the principle that the plaintiffs attribute to Youngberg. However, the words — “liberty interests also exist in safety, freedom of movement, and training” — follow the phrase “We must decide whether . . . .” Needless to say, the plaintiffs’ conclusions of law critically omit “he [Romeo] argues . . .” and “We must decide whether . . . .” Perhaps obscured by the plaintiffs, the actual holding in Youngberg warrants a close explication.
In Youngberg, the detainee, Nicholas Romeo, was a “profoundly retarded,” thirty-three-year-old with “the mental capacity of an 18-month-old child,” with an I.Q. in the range of 8 to 10, without speech, and without the ability to care for himself. His mother asked a Pennsylvania court to commit him permanently to a “state facility” because of her inability to care for him and because of his persistent violence toward her and toward himself.
Under Pennsylvania’s “mental retardation” statute, the trial court involuntarily and permanently committed Romeo to the Pennhurst State School and Hospital, at which Romeo “suffered injuries on sixty-three occasions” as a result of “his own violence and by the reactions of other residents to him.” 457 U.S. at 310. Later, after beginning a lawsuit against Pennhurst’s administrators, Romeo was moved “from his ward to the hospital for treatment of a broken arm.” While Romeo
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recuperated in the hospital, one of his doctors ordered Romeo restrained for the protection of both Romeo and other patients, some of whom were quite vulnerable. Even after his arm healed, Romeo was retained in the hospital and routinely restrained.
After a jury returned a verdict against him, Romeo appealed and a panel of the Third Circuit reversed because of prejudicially inaccurate jury instructions on the applicable constitutional standard. The Third Circuit en banc reversed the panel and fashioned a constitutional standard that only “compelling necessity” justifies the application of a restraint, a constitutional standard that only “substantial necessity” justifies a failure to provide effective security, and a constitutional standard that requires medical care “acceptable in the light of present medical or other scientific knowledge.” 457 U.S. at 313.
Vacating the Third Circuit’s en banc opinion and remanding, the Supreme Court in Youngberg “consider[ed] for the first time the substantive rights of involuntarily committed mentally retarded persons under the Fourteenth Amendment.” In response to Romeo’s specific claims for relief, Youngberg begins by acknowledging the right, established in earlier Supreme Court precedent, “to safe conditions” and to “freedom from bodily restraint.” 457 U.S. at 316. Youngberg also considers Romeo’s claim of “a constitutional right to minimally adequate habilitation,” defined as “training and development of needed skills.” Because no amount of training would advance Romeo’s release, Youngberg finds the broader
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“training and skills” question “not present” and “conclude[s] that [Romeo’s] liberty interests require the state to provide minimally adequate training to ensure safety and freedom from undue restraint.” 457 U.S. at 319.
Youngberg concludes that the “liberty interests in safety and freedom from bodily restraint . . . are not absolute” and that the interests “to some extent . . . are in conflict.” Youngberg alludes to several tests for resolving a confined person’s substantive and procedural due process claims, each of which balances the confined person’s liberty interest against “the demands of organized society,” “the State’s asserted reasons for restraining individual liberty,” “the legitimate government objectives . . . not tantamount to punishment,” and the “legitimate interests of the State, including the fiscal and administrative burdens . . . .” 457 U.S. 320–21. In the concluding Part IV (457 U.S. at 324), Youngberg emphasizes the state’s willing concession of a constitutional obligation “to provide adequate food, shelter, clothing, and medical care” and, as well, “the unquestioned duty to provide reasonable safety for all residents and personnel within the institution.”
Although the constitutional standard identified in Youngberg is uncontested and incontestable, even this expression of the duty is too amorphous to serve alone as a tool of decision in litigation. What quality and quantity of food, shelter, clothing, and medical care is “adequate” and how safe is “reasonable safety”? Who decides and based on what? Although the plaintiffs advance generalities, Youngberg supplies more:
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We think the standard articulated by Chief Judge Seitz affords the necessary guidance and reflects the proper balance between the legitimate interests of the State and the rights of the involuntarily committed to reasonable conditions of safety and freedom from unreasonable restraints. He would have held that “the Constitution only requires that the courts make certain that professional judgment in fact was exercised. It is not appropriate for the courts to specify which of several professionally acceptable choices should have been made.” 644 F.2d, at 178.
457 U.S. at 321–22.
Youngberg presents primarily a question about the training that the Constitution
requires for an involuntarily and civilly committed person. Youngberg finds that the
answer to the question is the “minimally adequate training” that is “reasonably”
consistent with both the liberty interest of the committed person and the “deference
due to the judgment exercised by a qualified professional.” 457 U.S. at 322.
Youngberg reasons that, because “there is no reason to think judges or juries are better
qualified than appropriate professionals,” “interference by the federal judiciary . . .
should be minimized.”
For these reasons, the decision, if made by a professional, is presumptively valid; liability may be imposed only when the decision by the professional is such a substantial departure from accepted professional judgment, practice, or standards as to demonstrate that the person responsible actually did not base the decision on such a judgment. In an action for damages against a professional in his individual capacity, however, the professional will not be liable if he was unable to satisfy his normal professional standards because of budgetary constraints; in such a situation, good-faith immunity would bar liability.
457 U.S. at 323. And Youngberg tellingly adds:
In determining whether the State has met its obligations in these respects, decisions made by the appropriate professional are entitled to a presumption of correctness. Such a presumption is necessary to
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enable institutions of this type — often, unfortunately, overcrowded and understaffed — to continue to function. A single professional may have to make decisions with respect to a number of residents with widely varying needs and problems in the course of a normal day.
457 U.S. at 324. Youngberg clarifies the definition of a “‘professional’
decisionmaker”:
By a “professional” decisionmaker, we mean a person competent, whether by education training, or experience, to make the particular decision at issue. Long-term treatment decisions normally should be made by persons with degrees in medicine or nursing, or with appropriate training in areas such as psychology, physical therapy, or the care and training of the retarded. Of course, day-to-day decisions regarding care — including decisions that must be made without delay — necessarily will be made in many instances by employees without formal training but who are subject to the supervision of qualified persons.
457 U.S. at 323.
Youngberg undertakes to clarify the constitutional standard applicable to a
“profoundly retarded,” permanently civilly committed, and intermittently violent
adult who was incapable of maintaining himself or defending himself against himself
or others. Even in the instance of the pervasively vulnerable and dependent inmate
in Youngberg, the Supreme Court declined to impose a constitutional standard of care
as demanding and inflexible as the standard the plaintiffs aspire to impose on the
Sheriff’s management of a typical group of juvenile detainees. More to the point, the
“profoundly retarded” person institutionalized for a lifetime in Youngberg is not
comparable to the typical juvenile detained temporarily by the Sheriff in the present
action. And the standard the plaintiffs attribute to Youngberg is dramatically more
demanding and inflexible than the standard Youngberg prescribes.
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The plaintiffs next cite Trop v. Dulles, 356 U.S. 86, 101 (1958), to the effect that “these constitutional principles” (Doc. 529 at 100) — referring to the preceding sentence about the Fourteenth Amendment — “draw meaning from the evolving standards of decency that mark the progress of a maturing society,” 356 U.S. at 101, a phrase readily recognizable from repetition in recent years in the Supreme Court’s interpretation of the Eighth Amendment’s prohibition against “cruel and unusual punishment.” Of course, the parties agree that the administration of “punishment” has no application to a pretrial detainee, whether juvenile or adult, who is by definition not yet adjudicated guilty of a crime and who is perforce not subject to “punishment,” as the word “punishment” is used in the Eighth Amendment.
In Trop, a general court-martial convicted an army private, stationed in French Morocco during World War II, of desertion and sentenced him to three years at “hard labor” and a dishonorable discharge. Later he applied for a passport, which was rejected because under the Nationality Act of 1940 he had “lost” his United States citizenship by force of his conviction for desertion. Trop determines that under the Eighth Amendment Congress lacks the power to expatriate a citizen as punishment for desertion (even though, the Supreme Court concedes, Congress can require the death penalty for the same offense by the same offender). The plaintiffs’ citation to Trop is peculiar because Trop includes no discussion of the constitutional standard of care owed to a deserter or anyone else in a state prison, a county jail, a military brig, or any other facility for confinement. The plaintiffs have, again,
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plucked a phrase from a case about the Eighth Amendment’s prohibition against cruel and unusual punishment and mischievously planted the phrase out of context and disguised as Supreme Court precedent controlling the standard of care for juvenile detention, to which — all agree — the concept of “punishment” is wholly inapplicable.
At this point, after paragraph 305 and before paragraph 306, the plaintiffs feature the heading “CHILDREN ARE CONSTITUTIONALLY DIFFERENT FROM ADULTS.” To begin this section of the plaintiffs’ proposed findings, the plaintiffs in paragraph 306 cite Application of Gault, 387 U.S. 1 (1967), as authority for the premise that “evolving standards of decency have long recognized society’s duty toward children given their unique vulnerabilities and capacity for change.” Although the preceding quotation originates in the plaintiffs’ proposed findings (Doc. 529 at 111, ¶ 306) and not in Gault, the plaintiffs attach to their formulation a cite to Gault, 387 U.S. at 14–15, which contains in content or meaning nothing similar to the plaintiffs’ quotation. Pages 14–15 of Gault discuss the history of informal juvenile proceedings and the former unavailability to a juvenile of the procedural rights available to an adult, including the right to an indictment by a grand jury, to bail, to a jury trial, to counsel, to the Fifth Amendment privilege against self-incrimination, and to the rights to notice, to a hearing, to confrontation, to cross-examination, and the like. Gault says nothing at pages 14–15 (or, apparently,
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elsewhere) about “evolving standards,” “unique vulnerabilities,” or “capacity for change.” The citation to Gault appears bravely imaginative.
The plaintiffs next repair for authority to three recent Supreme Court decisions, each a decision based on the Eighth Amendment’s prohibition against “cruel and unusual punishment” and each a decision about criminal sentencing. Although each case involves a juvenile, none involves detention.
Roper v. Simmons, 543 U.S. 551 (2005), holds that the Eighth Amendment forbids imposition of the death penalty on a juvenile offender. Graham v. Florida, 560 U.S. 48 (2010), holds that the Eighth Amendment forbids imposition of a lifewithout-parole sentence on a juvenile who commits a “non-homicide” offense. The third and most recent of the trio of decisions is Miller v. Alabama, 132 S. Ct. 2455 (2012), which extends Graham and holds that a mandatory life-without-parole sentence imposed on a juvenile violates the Eighth Amendment’s prohibition against cruel and unusual punishment.
The plaintiffs first cite Roper, Graham, and Miller for the assertion that “evolving standards of decency . . . recognize that children are constitutionally different from adults.” The plaintiffs next cite Miller and Graham for the explanation that the constitutionally pertinent distinction arises from differences in “brain development” and the consequences of those differences. However, Miller’s statement is somewhat less than the plaintiffs suggest.
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Justice Kagan for the majority in Miller states — with more precision than the
plaintiffs — that Roper and Graham establish “that children are constitutionally
different from adults for purposes of sentencing,” but the plaintiffs slyly omit the “for
purposes of sentencing” qualifier. 132 S. Ct. at 2464. Justice Kagan explains that the
“constitutional differences” she perceives are physiological and psychological:
First, children have a “‘lack of maturity and an underdeveloped sense of responsibility,’” leading to recklessness, impulsivity, and heedless risk-taking. Second, children “are more vulnerable . . . to negative influences and outside pressures,” including from their family and peers; they have limited “contro[l] over their own environment” and lack the ability to extricate themselves from horrific, crime-producing settings. And third, a child’s character is not as “well formed” as an adult’s; his traits are “less fixed” and his actions less likely to be “evidence of irretrievabl[e] deprav[ity].”
(citations omitted).
Justice Kagan explains in Miller that, because of the “distinctive” physiological
and psychological “attributes of youth,” the “penological justifications for imposing
the harshest sentences” are “diminished.” Justice Kagan finds that these distinctive
differences diminish the prospects of successful retribution, deterrence, and
incapacitation but enhance the prospects of rehabilitation. Of course, Miller
addresses a discrete Eighth Amendment issue, the imposition of life-without-parole;
Miller says little, if anything, about the constitutional standard applicable to juvenile
detention.
The declaration that “children are constitutionally different for the purpose of
sentencing” is neither a pervasive rule of law nor a pre-emptive finding of fact with
indiscriminate application to, or with supervening effect in, every circumstance in
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which a juvenile appears; the statement neither pretends nor aspires to general application. This somewhat ethereal utterance in Miller about the difference between a child and an adult is more a shorthand summary of “common sense” and of what “every parent knows,” as Justice Kagan phrases the matter, refined by the present state of the pertinent science and, much less so (if at all), by the social sciences. Even if Justice Kagan had said “children are constitutionally different,” as the plaintiffs suggest, that catchy but insubstantial phrase would resolve as little or less than the similarly catchy but equally insubstantial phrase that it echoes: “death is different,” a line from Gregg v. Georgia, 428 U.S. 153, 188 (1976). In point of fact, as both common sense and metaphysics confirm, everything is different from everything else.
Next, the plaintiffs state the more interesting thesis that “conditions for detained children must meet a higher standard of care than that required for adults.” (Doc. 529 at 112, ¶ 309). In support, the plaintiffs cite AJ by LB v. Kierst, 56 F.3d 849 (8th Cir. 1995), and the plaintiffs add a parenthetical quote that “the due process standard” is “more liberally construed” for juveniles than adult detainees.
But Kierst is not the case that the plaintiffs suggest. The trial court in Kierst ruled entirely against the plaintiffs, and the circuit court affirmed, except on a discrete issue of the attorney’s fee. Although Kierst confirms that the “more protective” Fourteenth Amendment, not the Eighth Amendment, governs the status of a pretrial detainee, Kierst observes that “the Supreme Court has not yet articulated the appropriate federal standard by which to judge conditions in state juvenile facilities.”
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56 F.3d at 854. Kierst confirms the rudimentary and unremarkable premise that because a detainee has incurred no adjudication of guilt, more scrutiny is applied to the conditions of detention. Quoting Santana v. Collazo, 714 F.2d 1172, 1179 (1st Cir. 1983), Kierst states:
Juveniles . . . who have not been convicted of crimes, have a due process interest in freedom from unnecessary bodily restraint which entitles them to closer scrutiny of their conditions of confinement than that accorded convicted criminals. Kierst’s discussion of the standard concludes with the statement quoted by the plaintiffs: [W]e conclude that, as a general matter, the due process standard applied to juvenile pretrial detainees should be more liberally construed than that applied to adult detainees. In discussing the due process standard, the earlier quote from Kierst uses the phrase “closer scrutiny”; discussing the same standard, the latter quote uses the phrase “more liberally construed.” What, if anything, is intended by the conjunction of “closer scrutiny” and “more liberally construed” remains unclear, especially a couple of paragraphs after Kierst’s stipulating that the Supreme Court has left the applicable standard unspecified. Whatever Kierst says about the standard, Kierst finds that “overcrowding alone” is “insufficient to create a due process violation” and that no violation existed with respect to the center’s use of floor mattresses, which Kierst finds not to “amount[] to a deprivation of such severity as to deprive plaintiffs of their due process rights.”
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The plaintiffs in the present action pluck a clause from Kierst and feature the clause as probative of the applicable constitutional standard, but Kierst actually says something quite different from the plaintiffs’ isolated quote. And the plaintiffs say nothing about one of Kierst’s only adjudications on the subject of conditions of detention, that is, Kierst found a lack of constitutionally cognizable “severity” in the challenged conditions of detention of the juveniles. In their mention of Kierst, the plaintiffs say nothing about “severity,” a word that provides an accurate hint of Kierst’s essential constitutional concern.
For the notion that the Constitution requires “rehabilitative” services for a detainee, the plaintiffs next cite (introduced by “see, e.g.”) Swansey v. Elrod, 386 F. Supp. 1138 (N.D. Ill. 1975), a forty-year-old, succinct, little-cited order without an ascertainable subsequent history. In Swansey, a district judge in Chicago preliminarily enjoined the Sheriff of Cook County from transferring thirteen-toseventeen-year-olds from a juvenile housing facility to an adult housing facility after the juvenile judge approved prosecuting the juveniles as adults. The adult facilities were overcrowded (about twice the design capacity), and the population included both federal and state felons.
Swansey is resolved on both Eighth Amendment and Equal Protection Clause grounds. The two holdings are instructive and serve to distinguish Swansey from the present action. First, the district court finds “a likelihood of success” on the Eighth Amendment claim and concludes:
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Under the Eighth Amendment children who remain unconvicted of any crime may not be subjected to devastating psychological and reprehensible physical conditions, and while other juvenile law cases are not strictly on point, they recognize that juveniles are different and should be treated differently. Thus, the evolving standards of decency that mark the progress of a maturing society require that a more adequate standard of care be provided for pre-trial juvenile detainees. Plaintiffs therefore have demonstrated that there is a likelihood of success on their Eighth Amendment claim.
386 F. Supp. at 1144. The district judge’s reference in Swansey to “devastating” and
“reprehensible” conditions sounds much like the “severity” findings in Kierst, which
demand something sufficiently severe, something sufficiently threatening serious
harm, to trigger an Eighth Amendment consequence. The juvenile detainees in
Swansey eating, sleeping, working, and lounging in intimate contact with adult felons
evidences a circumstance sufficiently severe and sufficiently threatening of serious
harm to trigger a constitutional remedy.
Finally, the district court in Swansey decisively invoked the Equal Protection
Clause. The district judge held that, because in this circumstance both a juvenile
convicted as an adult and an unconvicted juvenile in detention receive rehabilitative
services, the Equal Protection Clause required that a detained juvenile approved for
prosecution as an adult but still in detention and unconvicted must receive the same
services unless Illinois shows that the disparate treatment is “rationally related” to a
legitimate governmental purpose, which Illinois in Swansey could not show.
Needless to say, the facts in the present action fail to present, and the plaintiffs
fail to advance, a claim based on the Equal Protection Clause. And the juveniles in
the present action neither eat nor sleep nor work nor lounge in the company of, or
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even in sight of or within the sound of, an adult felon or even an adult detainee. The role of the absence of rehabilitative services in Swansey is, at best, tertiary. Although Swansey might stand (weakly) for the premise that the absence of rehabilitative services for a juvenile detainee can reinforce evidence of a constitutional violation based on another deprivation, Swansey cannot support — by a wide margin — the notion that the Constitution requires rehabilitative services for a juvenile detainee. If Swansey says that, Swansey is wrong.
Employing a “see also” signal in the same paragraph as the citation to Swansey, the plaintiffs cite Baker v. Hamilton, 345 F. Supp. 345 (W.D. Ky. 1972), a little-cited decision three years older than Swansey and also without an ascertainable subsequent history. Similar to Swansey, Baker presents the grisly (but inapposite) fact of housing juvenile detainees together with adult felons in a “decrepit” 1907 structure, plagued by extreme heat and cold, broken windows, inoperable locks, five-foot by nine-foot cells with “two bunks” and a one-bulb ceiling light for illumination, and a history of one suicide and three prison deaths in a year, as well as an “act of perversion” perpetrated in the presence of a juvenile. A grand jury called the jail a “disgrace” and an expert testified that the facility was “deplorable” and “the worst he had ever seen.” Baker concludes that:
[T]here are sufficient elements present in the Jefferson County Jail to hold that confinement therein as to juveniles constitutes cruel and unusual punishment. Specifically, these elements are as follows — cramped quarters, poor illumination, bad circulation of air, broken
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locks, no outdoor exercise or recreation, and no attempt at rehabilitation, in addition to the condition of the “hole”, which Judge Thompson described as horrible. 345 F. Supp. at 353. Baker gives no definition of “rehabilitation” but, however defined, the lack of rehabilitation manifestly played only a secondary role in the (obvious) conclusion that a juvenile’s confinement with adults in this hellish Kentucky jail violates the Eighth Amendment. Again, a fair reading of Baker confirms that the lack of even an “attempt at rehabilitation” contributed to the overall unconstitutional condition at the facility. But Baker stands only weakly, if at all, for the notion that the Fourteenth Amendment requires a particular form or extent of “rehabilitative services” for a juvenile detainee. On page 113, the plaintiffs boldly assert — without a citation of authority and unjustified by the authority cited elsewhere — that providing a juvenile in detention with a “rehabilitative environment” (an entirely new term, unmentioned in any citation and wholly undefined) and with “rehabilitative services” (also undefined) “defines the difference between juvenile and adult detention.” (Doc. 529 at 113, ¶ 311). The plaintiffs’ identification of this supposedly defining (but undefined) “difference” in a discussion of the constitutional standard applicable to juvenile detention is an aggressive and imaginative ipse dixit, which is followed by another, which is equally aggressive: “A searching inquiry must be made to ensure that conditions for children satisfy accepted practices and standards in juvenile
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detention.” For this, the plaintiffs again cite Youngberg, which, notwithstanding the plaintiffs’ formulation, requires (as elaborated earlier) a “balance between the legitimate interests of the state and the rights of the involuntarily committed,” 457 U.S. at 322, which warns that “it is not appropriate for the courts to specify which of several professionally acceptable choices should have been made,” 457 U.S. at 322, and which requires only “minimally adequate training.”
The plaintiffs persistently mistake — by increments but with consistency — the constitutional standard. For example, the plaintiffs again in the discussion adjoining the Youngberg citation, begin with Justice Kagan’s observation about certain attributes of juveniles that imply constitutional differences “for the purposes of sentencing” and promiscuously elevate the observation into a “fundamental constitutional difference between children and adults.” (Doc. 529 at 113, ¶ 312) The plaintiffs’ cagey looseness with words plagues the plaintiffs’ papers and, in part, compels this lengthy evaluation of applicable law.
The plaintiffs next (Doc. 529 at ¶¶ 313–14) assemble a list of constitutional offenses allegedly committed by the Sheriff and undertake to elucidate with legal authority the content of each pertinent constitutional principle. The discussion begins with the heading after paragraph 313 (Doc. 529 at 114), which heading states: “CHILDREN’S PROTECTION FROM VIOLENCE AND THE THREAT OF VIOLENCE.”
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Paragraph 314 (Doc. 529 at 114) begins with a citation to Farmer v. Brennan, 511 U.S. 825, 833–34 (1994), to support a claim that “the Eighth and Fourteenth Amendments protect prisoners from a substantial risk of harm, including harm from other prisoners.” An examination of Farmer at the cited pages (and elsewhere) reveals something noticeably and distinctly different from the plaintiffs’ claim. First, Farmer begins with the unequivocal statement, “A prison official’s ‘deliberate indifference’ to a substantial risk of serious harm to an inmate violates the Eighth Amendment.” 511 U.S. at 829. In other words, the plaintiffs again (in accord with a persistent pattern) select some words from a court’s ruling but selectively exclude others to re-cast and lower the constitutional threshold, a little at a time (but with occasional jolts), while retaining a few familiar words that lend a false air of verisimilitude to the plaintiffs’ newly-minted and lesser formulation.
As stated in the first paragraph of Farmer, the decision defines “deliberate indifference.” Farmer was a transsexual who “project[ed] feminine characteristics” and who was transferred by the Bureau of Prisons from FCI Oxford, Wisconsin, to USP Terre Haute, Indiana, a facility with the “more bothersome prisoners,” and placed in the general population. Within two weeks he was beaten and raped, after which he was placed in segregation. Farmer sued the BOP and alleged deliberate indifference by officials to his safety. Noting that the Constitution neither mandates “comfortable prisons” nor permits “inhumane ones,” Farmer finds that the Eighth Amendment requires “reasonable measures to guarantee the safety of the inmates,”
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511 U.S. at 832, and “to protect prisoners from violence at the hands of other
prisoners.” 511 U.S. at 833.
Because the plaintiffs carefully exclude reference to “reasonable measures”
and to “serious harm,” the plaintiffs likewise exclude the balance of Farmer’s
governing formulation:
It is not, however, every injury suffered by one prisoner at the hands of another that translates into constitutional liability for prison officials responsible for the victim’s safety. Our cases have held that a prison official violates the Eighth Amendment only when two requirements are met. First, the deprivation alleged must be, objectively, “sufficiently serious”; a prison official’s act or omission must result in the denial of “the minimal civilized measure of life’s necessities.” For a claim (like the one here) based on a failure to prevent harm, the inmate must show that he is incarcerated under conditions posing a substantial risk of serious harm.
The second requirement follows from the principle that “only the unnecessary and wanton infliction of pain implicates the Eighth Amendment.” To violate the Cruel and Unusual Punishments Clause, a prison official must have a “sufficiently culpable state of mind.” In prison-conditions cases[,] that state of mind is one of “deliberate indifference” to inmate health or safety, a standard the parties agree governs the claim in this case.
511 U.S. at 834 (citations omitted).
The plaintiffs next cite Zatler v. Wainwright, 802 F.2d 397, 400 (11th Cir. 1986),
for the premise that “incarcerated people have ‘a constitutional right to be protected
from the constant threat of violence and from physical assault by other inmates.’”
Zatler alleged that he was raped in eight Florida prisons because he was “a young,
white, slightly built man” and that he was denied “reasonable protection.” Zatler
contains the words quoted by the plaintiffs, but — unsurprisingly — the sentence
after the sentence quoted by the plaintiffs begins, “However, . . .” and continues:
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“[t]his does not mean that the constitutional rights of inmates are violated every time a prisoner is injured. It would not be reasonable to impose such an absolute and clearly unworkable responsibility on prison officials.” “‘In order to state a § 1983 cause of action against prison officials based on a constitutional deprivation resulting from cruel and unusual punishment, there must be at least some allegation of a conscious or callous indifference to a prisoner’s rights, thus raising the tort to constitutional stature.’” (citation omitted). Conforming to the “deliberate indifference” line of decisions, Zatler elaborates the requirement of “causal connection” between the acts of a prison official and a constitutional deprivation. Zatler is a damages action under the Eighth Amendment but, to the extent pertinent to the present action, Zatler says much less than the plaintiffs’ presentation implies. In fact, Zatler iterates the sensible constitutional perspective that “[t]he mere fact that an assault occurs, however, does not establish the requisite indifference to a prisoner’s constitutional rights” or, stated differently, “a constitutional right is not violated every time a prisoner is injured.” 802 F.2d at 403. The plaintiffs next cite Marsh v. Butler County, Alabama, 268 F.3d 1014, 1027 (11th Cir. 2001) (en banc), another decision under the Eighth Amendment, for the proposition that “a constitutional violation is established when officers are “aware of a substantial risk of serious harm to the inmates and do not take reasonable measures to alleviate that risk.” Of course, this echoes the standard of Farmer, discussed above, which includes “deliberate indifference” toward a serious risk of serious harm. As Marsh states elsewhere:
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An Eighth Amendment violation will occur when a substantial risk of serious harm, of which the official is subjectively aware, exists and the official does not “respond[] reasonably to the risk.”
268 F.3d at 1028. So, Marsh’s formulation includes both “subjective awareness” of,
and a “reasonable response” to, the serious risk of serious harm. Because Marsh finds
the allegations by the plaintiffs about the jail in Butler County, Alabama, sufficient to
defeat the defendants’ motion for summary judgment, a detailed description of the
conditions in the facility is instructive:
The Jail was an old building that had become extremely dilapidated by the summer of 1996. Inmates were able to obtain makeshift weapons by cannibalizing parts of the decaying building. Lack of adequate monitoring of the inmates allowed inmate activities to go mostly unchecked. Locks to the doors of the inmates’ cells did not work, resulting in the inability of the guards to lock down the prisoners. Because prisoners were never locked down, jailers were afraid to conduct visual inspections of inmate cells on the second floor; most of the inmate population was kept on the second floor. No visual or audio surveillance system was in place on the second floor, nor, did prisoners have means to contact guards other than by screaming or banging on the walls. Jailers never conducted prisoner headcounts.
Often, only one jailer was on duty at the Jail at a time. This single jailer was responsible for controlling the entire inmate population, administering inmate intake and release, controlling the gate and fence surrounding the Jail, supervising visitation and outdoor exercise, handling mail, coordinating food service, dispensing medication, supervising trustees, answering the Jail telephone, and (at times) answering calls to the Butler County Sheriff’s Department and operating the dispatch radio. Because the Jail was understaffed, inmate trustees were given many responsibilities for taking care of other inmates and maintaining the operation of the Jail.
In August 1995, the jail inspector for the Alabama Department of Corrections recommended that all Butler County jailers be trained in jail-management seminars. By the time of the incidents underlying the complaint, few jailers had been so trained. Written procedures did not govern the Jail’s operations.
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Inmates entering the Jail were not screened for mental impairments or for whether they had conflicts with other inmates in the Jail. No system of classification existed at the Jail: pretrial detainees were housed with convicted inmates, nonviolent offenders with violent offenders, juveniles with adults, and mentally ill persons with those in good mental health. Never were prisoners disciplined or segregated for assaulting other inmates, destroying jail property, or threatening jailers. The Jail contained four eight-person cells, one four-person cell, trustee cells, two holding cells, one isolation cell and a cell for female inmates; but sometimes more than 50 inmates were imprisoned at the Jail.
268 F.3d at 1024–25.
One plaintiff in Marsh was “struck in the head with a metal pipe, beaten for
several minutes, and cut with a screwdriver” and remained helpless until a jailer
arrived in “10 to 15 minutes.” He suffered a broken bone and permanent eye and
nerve damage. The attackers were not disciplined. Another plaintiff was “kicked,
stomped, stabbed and beaten for 30 minutes to an hour” but remained helpless
because only one jailer was “on duty.” When summoned, the Sheriff and the Jail
Administrator “refused” to respond. The victim was released on “his own bond” and
allowed to wander, injured and barefooted, in the streets. These life-threatening,
atrocious, unconscionable conditions in Marsh decisively present a substantial risk of
serious injury, evidence the comprehensive failure and refusal of management to
manage, and depart dramatically from the civilized and regulated conditions
prevailing at CCJ.
Marsh reverses the summary judgment granted in district court on the “jail
conditions” component of the plaintiff’s claims and discusses, among other things,
the Sheriff’s qualified immunity from the “personal capacity” claim.
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The plaintiffs next cite Thomas v. Bryant, 614 F.3d 1288, 1307 (11th Cir. 2010), for the notion that “[w]hether a condition is objectively serious for purposes of the analysis turns on the evolving standards of decency.” That concept, although present in Bryant, is surrounded by a startling amount of directly relevant and explanatory Eleventh Circuit law. What have the plaintiffs omitted?
The plaintiffs in Bryant were inmates at Florida State Prison who suffered from a “serious mental illness,” who were “unable to conform their behavior to previous standards due to their mental illness,” and who became subject to the prison’s “nonspontaneous use-of-force policy”1 when, for example, an inmate was uncontrollably “banging, kicking, yelling, throwing feces, or refusing to remove his arm from the food flap in his cell”; attempting to hang himself; “banging his head on a steel bunk and cell door”; “jumping down a flight of eight stairs, head first”; or the like.
The plaintiffs in this action omit Bryant’s more specific explications of the Eighth Amendment claims. For example, Bryant states that the Eighth Amendment permits a claim challenging conditions of confinement, use of excessive force, or deliberate indifference to a serious medical need, and Bryant explains that:
1 Bryant explains that: Non-spontaneous force, as the name implies, is premeditated force, i.e., force that is only available as a disciplinary tool after corrections officers have complied with a series of preliminary procedures. These procedures include the requirement that an officer first confer with a direct supervisor, DOC medical personnel (though not mental health staff), and the Warden of FSP for authorization to use chemical agents in the particular instance on the specific inmate at issue.
614 F.3d at 1297.
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Each of these claims requires a two-prong showing: an objective showing of a deprivation or injury that is “sufficiently serious” to constitute a denial of the “minimal civilized measure of life’s necessities” and a subjective showing that the official had a “sufficiently culpable state of mind.” 614 F.3d at 1304. The plaintiffs in this action mention “evolving standards” but not “minimal civilized measure of life’s necessities” or a “culpable state of mind.” Admittedly, Bryant stipulates that each claim is “contextual” in the sense that each claim is “responsive to contemporary standards.” 614 F.3d at 1304. But Bryant instructs that the necessary proof varies among the three Eighth Amendment claims. Bryant states that an “unconstitutional condition of confinement” claim requires proof of “extreme deprivations.” 614 F.3d at 1304. The plaintiffs in this action never mention “extreme deprivations.” For example, the principal plaintiff in Bryant was pepper sprayed thirty-six times, often on consecutive days and sometimes when “decompensated” and unable to control his conduct. Bryant finds that McKinney and others, owing to their serious mental illness, were subject repeatedly and for a prolonged time to pepper spray “without penological purpose.” The plaintiffs next cite Goebert v. Lee County, 510 F.3d 1312, 1332 (11th Cir. 2007), for the premise that “supervisory liability for deliberate indifference based on implementation of a facially constitutional policy requires the plaintiff to show that the defendant had actual or constructive notice of a flagrant, persistent pattern of violations.” Goebert was a pregnant inmate in Lee County, Florida. Goebert’s child was stillborn two days after a prison official hospitalized her and eleven days after she began leaking amniotic fluid. Goebert is primarily about a prisoner’s obligation to
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exhaust her administrative remedies before her resort to court, but the district court in the alternative granted the Sheriff qualified immunity and found Goebert’s “deliberate indifference” claim deficient. Goebert affirms the summary judgment in favor of the Sheriff and notes that “deliberate indifference” is a stringent standard of fault, requiring proof that a municipal actor disregarded a known or obvious consequence of his action” and that “widespread abuse” was “obvious, flagrant, rampant, and of continued duration, rather than isolated instances.” 510 F.3d at 1332.
The plaintiffs next cite again to Bryant but only quickly to add a reference to a footnote in Bryant that quotes Goebert on the “flagrant, persistent pattern of violations” requirement. And the plaintiffs cite to West v. Tillman, 496 F.3d 1321, 1329 (11th Cir. 2007), briefly for the requirement of “continued” (perhaps the plaintiffs intend “continual”) rather than “isolated” occurrences.
The plaintiffs next cite Engelleiter v. Brevard County Sheriff’s Department, 290 F. Supp. 2d 1300, 1309 (M.D. Fla. 2003), the district court’s succinct adoption of a magistrate judge’s report and recommendation, for the idea that “to establish a policy or custom” a plaintiff must “show a persistent and widespread practice that, although not authorized by written law or express municipal policy, is ‘so permanent and well-settled as to constitute a custom or usage with the force of law.’” Again, the plaintiffs cite a “deliberate indifference to a serious medical need” decision under the heading about “children’s protection from violence,” but Engelleiter properly stands
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for the fragment that the plaintiffs cite. But, once again, standing for much more
than the plaintiffs suggest, Engelleiter recalls that “deliberate indifference” contains
both an objective and a subjective component. Engelleiter explains how exactly the
components differ:
The objective component is “contextual and responsive to ‘contemporary standards of decency.’” To establish that a health care provider’s acts constitute deliberate indifference to a serious medical need, treatment must be so grossly incompetent, inadequate, or excessive as to shock conscience or to be intolerable to fundamental fairness. The subjective component requires knowledge of the need for medical care and intentional refusal to provide that care.
290 F. Supp. 2d at 1307 (citations omitted). Engelleiter’s claim was that the Sheriff’s
staff administered only one insulin shot instead of four shots within forty-eight hours
and caused Engelleiter to incur a three-day hospitalization. Noting that, even if the
events constituted medical malpractice, the events alleged were not a constitutional
violation, Engelleiter explains the difference:
An official acts with deliberate indifference when he intentionally delays providing an inmate with access to medical treatment, knowing that the inmate has a life-threatening condition or an urgent medical condition that would be exacerbated by delay.
Deliberate indifference may also be established where treatment is shown to be grossly inadequate or based on a decision to take an easier but less efficacious course. When the need for treatment is obvious, medical care which is so cursory as to amount to no care at all may also amount to deliberate indifference. However, matters for medical judgment, such as whether to order an X-ray or like measure, does not represent cruel and unusual punishment even if the action or lack thereof evinces medical malpractice.
290 F. Supp. 2d at 1308 (citations omitted).
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At paragraph 318, the plaintiffs claim that — in the plaintiffs’ words — “[w]hen jails fail to provide adequate staff to supervise, monitor, and manage inmates in their custody, they create an unacceptable risk of harm,” for which the plaintiffs cite LaMarca v. Turner, 995 F.2d 1526 (11th Cir. 1993). The plaintiffs’ statement and attribution to LaMarca is superficially innocuous — if prisoners are ungoverned, danger exists and injury might follow. But, at the same time, the plaintiffs’ statement is so indefinite and generalized that neither a meaningful standard nor a useful measure of compliance emerges.
A look at the facts of LaMarca immediately informs the generality. The original plaintiff and a class representative, LaMarca was an inmate at Glades [County] Correctional Institute (GCI) and was threatened and assaulted by other inmates “because [he] refused to participate in homosexual activities, or pay protection to be left alone.” 995 F.2d at 1531. Additionally, the court found (1) that GCI comprised four dorms with three rows of twenty bunk beds with a shower at one end of the dormitory and an officer’s “wicket” in the middle for observation; (2) sheets and towels blocked the officer’s view across the dorm and to the shower; (3) officers were assigned “to patrol the interiors of the dorms regularly” but “they did not”; (4) “the cells lacked adequate ventilation, had poor lighting, and were infested with roaches and vermin”; (5) prisoners received “little or no exercise, only three showers a week, [and] no canteen privileges”; (6) the protective confinement facility was easily accessible by inmates in order to attack a “protected”
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inmate; and (7) inmates regularly possessed contraband, including weapons, alcohol,
and drugs. As LaMarca concludes:
The presence of contraband (weapons, alcohol, and drugs), corruption of GCI’s staff, inmate violence, and homosexual activity were accepted as part of prison life.
While a minimal level of contraband may be an unavoidable aspect of prison life, excessive quantities of contraband flowed freely into and within the prison. Prison officials made “little or no effort . . . to control illicit activity at GCI, resulting in readily-available contraband.” Inmates carried knives and openly used drugs. The contraband problem was compounded by staff corruption, as prison officials contributed to, and apparently profited from, the contraband, and utilized prisoners to “control” and punish other prisoners.
995 F.2d at 1532 (citation omitted). The GCI staff regularly permitted “unsupervised
showings of hard core pornographic movies.” Referring to LaMarca and other
members of the plaintiff class, LaMarca summarizes other undisputed facts:
A group of inmates, one brandishing a bush ax, made an unsuccessful attempt sexually to assault LaMarca in a dorm. Inmates raped Saunders in a small bathroom adjacent to the confinement area; he reported the incident but officials did not investigate and refused his request for a medical examination. Inmates repeatedly attacked Johnson while he was in protective confinement. Inmates raped Aldred and Durrance in shower areas. Aldred reported the incident to an officer, but there was no investigation. Bronson was sexually assaulted with the handle of a baseball bat on GCI’s recreation field. Cobb was stabbed by an inmate who, because of his cooperation with guards in conducting illicit activities, was protected.
995 F.2d at 1533. LaMarca includes another iteration of the proof required to prove a
violation of the Eighth Amendment:
First, the condition must have inflicted unnecessary pain or suffering upon the prisoner. This objective standard “embodies ‘broad and idealistic concepts of dignity, civilized standards, humanity, and decency . . .,’” but must be balanced against competing penological goals. . . .
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Second, the plaintiffs must show the defendant’s deliberate indifference to the conditions. The Supreme Court recently held that the Eighth Amendment contains a subjective component: whether the defendant wantonly permitted the constitutionally infirm condition to persist.
To be deliberately indifferent, a prison official must knowingly or recklessly disregard an inmate’s basic needs so that knowledge can be inferred. Because the Eighth Amendment requires a subjective standard, to demonstrate an official’s deliberate indifference, a plaintiff must prove that the official possessed knowledge both of the infirm condition and of the means to cure that condition, “so that a conscious, culpable refusal to prevent the harm can be inferred from the defendant’s failure to prevent it.” Thus, if an official attempts to remedy a constitutionally deficient prison condition, but fails in that endeavor, he cannot be deliberately indifferent unless he knows of, but disregards, an appropriate and sufficient alternative.
995 F.2d at 1534–35 (citations omitted). LaMarca finds that the district court
erroneously applied a negligence standard (“knew or should have known”) to the
proof of “deliberate indifference” and reverses on the issue of “causation.” 995 F.2d
at 1526. LaMarca presents life at a jail that is effectively a lawless, brutal, malignant
jungle; the plaintiffs generalize and reduce LaMarca to a case about “adequate staff.”
That is not an uncharacteristic maneuver by the plaintiffs — to attempt to reduce a
constitutional condemnation of deadly neglect and brutal malfeasance to a mere
disagreement about trivial differences in staffing ratios or the provision of a happy
selection of recreational activity.
The plaintiffs next cite Harris v. Thigpen, 941 F.2d 1495 (11th Cir. 1991), for
the notion that “inadequate staff may rise to deliberate indifference as to prisoner
safety.” This is a remarkable premise for which to cite Harris, which is an action
“involving the [Alabama Department of Corrections’] policy of uniformly
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segregating from the general prison population those prisoners who test positive for exposure to [the HIV virus].” 941 F.2d at 1498. In discussing whether the DOC was “deliberately indifferent to the serious medical needs of seropositive inmates,” Harris notes that both “[f]ederal and state governments have a constitutional obligation to provide minimally adequate medical care” to a prisoner and that “mere incidents of negligence or malpractice do not rise to the level of constitutional violations,” although a “series of incidents closely related” or “repeated examples” may constitute a “pattern of conduct amounting to deliberate indifference.”
Harris is about medical care for a seropositive inmate and, although the plaintiffs in Harris lose the Eighth Amendment claim (the district court is affirmed), the plaintiffs cite Harris at page 1505 on inadequate staffing, which is not a topic of decision in Harris. The plaintiffs say that Harris means that “inadequate staff may rise to deliberate indifference as to prisoner safety.” In fact, Harris states about staffing:
Deliberate indifference to inmates’ health needs may be shown, for example, by proving that there are “such systemic and gross deficiencies in staffing, facilities, equipment, or procedures that the inmate population is effectively denied access to adequate medical care.” 941 F.2d at 1495. Unfortunately, the plaintiffs’ pattern of semantic inflation continues. The plaintiffs say “inadequate staffing may rise to deliberate indifference,” but Harris says “systemic and gross deficiencies in staffing” that result in “effectively denied access to adequate medical care” constitute “deliberate indifference.” The one is not the other; the one is not fairly equivalent to the other.
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(More about Harris will appear later in this order.) In fact, Harris notes that “[i]t is not constitutionally required that mental health care be perfect, the best obtainable, or even very good,” 941 F.2d at 1510, another observation omitted from the plaintiffs’ account.
The plaintiffs provide a “see also” citation to Alexander S. v. Boyd, 876 F. Supp. 773, 786, 797–98 (D.S.C. 1991), an unappealed decision (a later attorney’s fee order was appealed) about practices by the South Carolina Department of Juvenile Justice. Review of the cited pages, 786 and 797–98, of Alexander S. reveals that page 786 of Alexander S. discusses the use on juveniles of CS gas, “a potent form of tear gas used primarily for riot control.” 876 F. Supp. at 785. Alexander S. concludes unsurprisingly:
that the indiscriminate use of CS gas violates the juveniles’ constitutional rights under the Due Process Clause. Based upon the testimony presented on this issue, the court finds that gas should be used only when a genuine risk of serious bodily harm to another exists and other less intrusive methods of restraint are not reasonably available. 876 F. Supp. at 786. Also, Alexander S. concludes that padlocks on cell doors create an unreasonable risk of serious injury from fire. The plaintiffs, in mentioning “freedom from unreasonable bodily restraints,” might usefully refer not to pages 797–98 but to pages 787–88, at which Alexander S. — in discussing the need for proper classification of juveniles, the “appropriate level of restraint for each juvenile,” and the “liberty
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interest in being free from unreasonable threats to their physical safety” — proposes a
remedy:
For these reasons, juveniles in [Department of Juvenile Justice] facilities should be screened and classified, so that the aggressive juveniles are identified and separated from more passive juveniles. The level of restraint to be used for each juvenile should be based upon some rational professional judgment as to legitimate safety and security needs. Inherent in this right is a system of periodic review of the initial placement to evaluate whether subsequent events demonstrate the need for a reclassification of the juvenile’s security requirements.
Perhaps the plaintiffs intended to cite to Alexander S. at pages 797–98. Page 797 is a
footnote about competing theories of confinement, except for a single line at the top
of the page (and continuing to the next page), which cites Youngberg for the premise
that:
The Due Process Clause guarantees to juveniles who are incarcerated the right to reasonably safe conditions of confinement, freedom from unreasonable bodily restraint, and minimally adequate training to protect those interests. Youngberg v. Romeo, 457 U.S. 307, 102 S. Ct. 2452, 73 L. Ed. 2d 28 (1982).
876 F. Supp. at 797–98. More useful is the district court’s observation that the
standards of the American Correctional Association, although instructive, neither
supersede nor define the applicable constitutional standard. Similarly, the district
court finds that an “expert’s” view as to “desirable prison conditions” neither
supersedes nor defines the applicable constitutional standard.
The plaintiffs next formulate an essentially defensive position, which is
that “Plaintiffs need not demonstrate that a harm has occurred” because “the
Constitution prohibits such unsafe conditions.” For this, the plaintiffs again cite
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Marsh, discussed earlier and featuring the dilapidated, dangerous, and chaotic jail in Butler County, Alabama, at which, for example, one inmate was “kicked, stomped, stabbed, and beaten for 30 minutes” or more without response by the sole jailer on duty. One might reasonably ask why Marsh, a case in which injurious brutality by inmates and sadistic neglect by officials was the firmly established tradition, might discuss the issue of whether proof of actual injury is necessary for a plaintiff’s Eighth or Fourteenth Amendment claim based on “substantial risk of serious injury.” The answer is that Marsh discusses the Sheriff’s claim of “qualified immunity.” At 268 F.3d at 1031–34, Marsh discusses whether a legal precedent in which brutality and injury occurred is so “materially similar” to a circumstance in which no brutality or injury has occurred that the former precedent “clearly establishes” controlling law and informs a reasonable official in the latter circumstance of the applicable requirements of the law.
The plaintiffs correctly state that the law requires no proof of actual injury. However, Marsh cites Helling v. McKinney, 509 U.S. 25, 34 (1993), to the effect that the Eighth Amendment protects against “sufficiently imminent dangers” and cites Gates v. Collier, 501 F.2d 1291, 1300–01 (5th Cir. 1974), to the effect that, even absent proof of injury, the obvious and imminent danger of “exposed electrical wiring, deficient firefighting measures and mingling of inmates with contagious diseases constituted an Eighth Amendment violation.” Again, the plaintiffs extract an unwarranted and ethereal generality from an essential and defining context,
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including a list of several, illustrative examples of a qualifying danger. The plaintiffs speak loosely of an “unsafe condition” that supposedly warrants an Eighth Amendment injunction; on the other hand, Marsh speaks of conditions of imminent, proximate, and catastrophic consequence, such as imminent electrocution, incineration, or contagion. Again, one is not — fairly and objectively assessed — even nearly equal to the other.
Next, the plaintiffs again cite Bryant, 614 F.3d at 1318, discussed earlier, for the premise that an injunction is “appropriate to prevent a substantial risk of serious injury from ripening into actual harm.” (Doc. 529 at 116, ¶ 319) However the surrounding text adds important meaning and requires both “a real or immediate threat that the plaintiff will be wronged again” and confirms that “the irreparableinjury requirement may be satisfied by demonstrating a history of past misconduct, which gives rise to an inference that further injury is imminent.” 614 F.3d at 1319.
The plaintiffs next again cite Youngberg for the requirement of “adequate staffing” and “adequate services” and “reasonable training” without any reference to Youngberg’s fortifying and explanatory context, discussed earlier in this order. The plaintiffs seem to suggest by this truncated and isolated citation to Youngberg that any “inadequacy” in staffing, services, or training creates a constitutional consequence, a notion negated by the whole of the applicable law.
Next (Doc. 529 at 116, ¶ 321) the plaintiffs cite Wilson v. Seiter, 501 U.S. 294, 304 (1991), for the premise that a “constellation of conditions of confinement” (the
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plaintiffs’ phrase, not Seiter’s) can violate the Eighth Amendment. Here is the part of
the sentence from Seiter that the plaintiffs quote:
Some conditions of confinement may establish an Eighth Amendment violation “in combination” when each would not do so alone, but only when they have a mutually enforcing effect that produces the deprivation of a single, identifiable human need . . . .
501 U.S. at 304. Here is the balance of the sentence in Seiter and the two sentences
that follow (less the intervening citation):
. . . such as food, warmth, or exercise — for example, a low cell temperature at night combined with a failure to issue blankets. . . . To say that some prison conditions may interact in this fashion is a far cry from saying that all prison conditions are a seamless web for Eighth Amendment purposes. Nothing so amorphous as “overall conditions” can rise to the level of cruel and unusual punishment when no specific deprivation of a single human need exists.
Whether the standard is phrased as “a constellation of conditions” or, more plainly,
as “overall conditions,” Seiter says that “nothing so amorphous” violates the Eighth
Amendment, a violation of which requires the “deprivation” of a “human need.”
Of course, Seiter’s signal contribution to the law is not the plaintiffs’
impermissibly “amorphous” “constellation of conditions” hypothesis. Seiter
famously and avowedly determines “what state of mind applies in cases challenging
prison conditions.” 501 U.S. at 302. Seiter decides the “deliberate indifference”
standard, applied with respect to medical care, applies also to prison conditions,
rather than the “wantonness” standard (“acting maliciously and sadistically for the
very purpose of causing harm”) of Estelle v. Gamble, 429 U.S. 97 (1976), which applies
to a “response to a prison disturbance.”
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The plaintiffs’ final citation in the “protection [of children] from violence” section of the proposed findings is Haley v. Ohio, 332 U.S. 596, 599 (1948), an opinion by Justice Douglas that decides the validity of the confession, the consequent conviction, and the life sentence of “a Negro boy age 15,” who was the lookout during an armed robbery that resulted in a murder. Without counsel and without advice about his rights, Haley signed a confession after five hours of interrogation by successive pairs of officers. Interestingly, Haley nowhere mentions, as the Court of Appeals of Ohio mentioned in State v. Haley, 72 N.E.2d 785, 787 (Ohio App. 1946), that the three robbers were looking for “easy money,” that the three robbers convened at Haley’s house, that Haley produced the gun, that Haley produced the bullets, that the three robbers searched the streets for a favorable target, and that one of the two other robbers — not Haley — immediately upon entering the store shot the shopkeeper through the heart. Neither does Haley mention that the robbers buried the gun in a nearby brickyard but that the police found and identified the gun as stolen during a previous burglary by the same three “lads,” as Justice Douglas called them.
For the most part, Haley is irrelevant, except perhaps that Justice Douglas in the plaintiffs’ quotation (Doc. 529 at 117, ¶ 322) remarks en passant the frailty Justice Douglas perceives in “a lad in his early teens” (but, decidedly, not too frail to plan and execute with other “lads” a cold-blooded murder).
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The next section of the plaintiffs’ proposed conclusions of law is “CHILDREN’S FREEDOM FROM UNREASONABLE RESTRAINTS,” which begins with another citation to Youngberg, in this instance for the premise that the Constitution prohibits “unreasonable restraints.” (Doc. 529 at 117, ¶ 324). However, Youngberg, 457 U.S. at 324, much more helpfully states:
The State also has the unquestioned duty to provide reasonable safety for all residents and personnel within the institution. And it may not restrain residents except when and to the extent professional judgment deems this necessary to assure such safety or to provide needed training. In other words, if the professionals — the director, staff, and others — at a facility conclude that an inmate presents a risk of self-injury or jeopardizes the safety of another inmate or the staff, the Constitution permits a reasonable and effective restraint to “assure” — not “help” or “improve” or “attempt” but to “assure” — the safety of an endangered person (any doubts, presumably, resolve in favor of safety and the application of restraint). The plaintiffs’ next proposed finding of law (Doc. 529 at 117, ¶ 325) is not a conclusion of law at all; the plaintiffs proffer a fact-finding wholly without a basis in the record of this action. Paragraph 325 purports to measure the comparative “hotness” of pepper spray and a jalapeno pepper. The plaintiffs cite United States v. Mosley, 635 F.3d 859 (6th Cir. 2011), which cites a North Carolina medical journal about the measurement of hotness in “Scoville units,” a 1926 invention to measure the hotness of chili peppers. Mosley contains a “parade of horribles” about pepper spray, but none of these horribles is established by the evidence in this case, no actual
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instance of the occurrence of one of these horribles is cited in Mosley, no specific identification of the pepper spray in question or the mode of application is provided in Mosley, and the array of actual instances of spray evidenced in the present case emphatically gravitates against the probability of the “parade of horribles” listed in Mosley (not to mention that every United States Marshal at every federal courthouse in the United States has been sprayed directly in the face at point blank range with pepper spray — without the occurrence of these “horribles”). The plaintiffs’ citation to Mosley is an attempt to establish a “fact” not supported (or even mentioned) in the evidence (and, in fact, heavily countered by the evidence) and based upon a reference in a judicial opinion to an article the particulars of which are unknown and, more to the point, are both unsworn and un-cross-examined.
Paragraph 326 features another fact-finding, lifted from Danley v. Allen, 540 F.3d 1298, 1309 (11th Cir. 2008), a more recent precedent featuring a detailed opinion by now-Chief Judge Ed Carnes. The plaintiffs cite Danley in the proposed findings of law for the proposed finding of fact that pepper spray is “designed to incapacitate” through “intense pain,” “a burning sensation,” “gagging,” and “temporary paralysis of the larynx.” (Doc. 529 at 117, ¶ 326). But, as a closer look — and a balanced and inquiring look — reveals, the plaintiffs again deceptively pluck a phrase from an important and binding precedent but ignore the main thrust of the precedent. In the first paragraph of Danley, Chief Judge Carnes confirms that, although subject to excess and abuse (as is any means of restraint or force), “pepper
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spray is an accepted non-lethal means of controlling unruly inmates.” 540 F.3d at 1303.
Danley was arrested for driving drunk and was jailed in Lauderdale County, Alabama. Danley objected vehemently to the unsanitary toilet, after which he and the staff had a lengthy and heated exchange. (Danley demanded “some f***ing toilet paper” and demanded to know why the staff was “f***ing with him.” 540 F.3d at 1304.) A staff member told Danley to comply with orders to enter a cell or he would “spray him.” When Danley asked what “spray” meant, the staff member demonstrated by spraying him “at close range for three to five seconds,” pushed him into a small cell, closed the door, and left him for twenty minutes before permitting him two minutes to shower. Although Danley complained of aggravated symptoms, the staff permitted him to remain for thirteen hours without adequate ventilation, a decent shower, or medical attention.
Because Danley reviews orders on only pre-trial motions, the plaintiffs’ allegations are presumed true. Danley’s complaint alleged that:
the three jailers “intentionally did not comply with jail policy and procedure and manufacturer instructions regarding ventilation and decontamination in order to inflict unnecessary and wanton pain and suffering on” him. 540 F.3d at 1305. In fact, in light of the plaintiffs’ persistent opposition on putative constitutional grounds to the use of pepper spray, Danley includes a most instructive passage: If there were nothing before us but the initial use of pepper spray following Danley’s second failure to obey Allyn’s order to return to
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the cell, we would readily conclude that there was no Fourteenth Amendment violation. “Prison guards may use force when necessary to restore order and need not wait until disturbances reach dangerous proportions before responding.” . . . Pepper spray is an accepted non-lethal means of controlling unruly inmates. . . .
. . . .
And prison guards do not have the luxury or obligation to convince every inmate that their orders are reasonable and well-thought out. Certainly they are not required to do so where an inmate repeatedly fails to follow those orders.
A short burst of pepper spray is not disproportionate to the need to control an inmate who has failed to obey a jailer’s orders.
540 F.3d at 1307 (citations omitted). Needless to say, this observation by Chief
Judge Carnes in Danley appears nowhere in the plaintiffs’ papers discussing pepper
spray.
In citing Danley, the plaintiffs list the potential effects of pepper spray,
including pain, a burning sensation, closing of the eyes, and others, but omit Danley’s
observations, including, “Pepper spray ‘is designed to disable a suspect without
causing permanent physical injury’” or that “pepper spray is a very reasonable
alternative to escalating a physical struggle.” More than anything else, Danley stands
opposed to disproportionate and gratuitous force, including pepper spray that is
administered for only an impermissible reason, such as malice, sadism, punishment,
terrorism, or humiliation. As Danley concludes:
When jailers continue to use substantial force against a prisoner who has clearly stopped resisting — whether because he has decided to become compliant, he has been subdued, or he is otherwise incapacitated — that use of force is excessive.
540 F.3d at 1309.
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Next, in paragraph 327 of the proposed findings, the plaintiffs cite Thomas v. McNeil, 2009 WL 64616, at *4 (M.D. Fla. 2009), the district court’s order affirmed in Thomas v. Bryant, already discussed. Thomas begins memorably with the demonstrably true statement, “This is a hard case.” Judge Corrigan found the case especially “hard” because the plaintiffs were persons with “long documented histories of serious mental illness” who engaged in extreme conduct — throwing feces, attempting to hang themselves, jumping down stairs head first, and the like.
Paragraph 327, which cites Bryant and McNeil about the consequences — including fear and anger — of pepper spray on the “mentally ill,” cunningly changes the persons under discussion from a person, serving a lengthy sentence in a state prison, with a “long history” of “serious mental illness” such that the person cannot conform to prison rules of conduct — the persons discussed in Bryant — and attempts to apply Bryant’s and McNeil’s “finding” to the present case, which involves a typical group of juvenile detainees. The plaintiffs’ characteristic semantic shift first reduces “serious mental illness” to “mental illness” and next broadly defines “mental illness” to include almost any diagnosable symptom, including, ADD, ADHD, and “defiance disorder,” none of which is a “serious mental illness” in the sense used in Bryant or McNeil (or anywhere else, except in the plaintiffs’ advocacy). Finally, the reference by the plaintiffs to page four of McNeil reports Judge Corrigan’s summary of Gibbs’s “expert” testimony and not Judge Corrigan’s finding of fact. A review of Judge Corrigan’s history of plaintiffs Thomas, McKinney, Ward, Echols, Williams,
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and Frazier will convince the fair observer that events in the “supermax” facility at
issue in Bryant and McNeil have little or no pertinence to juvenile detention in Polk
County.
But, in Bryant and McNeil, the plaintiffs successfully challenged the conditions
of their confinement. In Thomas, Judge Corrigan provides an admirably succinct but
thorough (and affirmed) statement of the applicable standard:
A two-prong analysis governs Eighth Amendment challenges to conditions of confinement. “First, under the ‘objective component,’ a prisoner must prove that the condition he complains of is sufficiently serious to violate the Eighth Amendment.” Minimally, the condition must be one that “‘poses an unreasonable risk of serious damage to [the inmate’s] future health’ or safety.” The risk must be of a kind that is “so grave that it violates contemporary standards of decency.” Thus, it must be an “extreme deprivation[ ]”, something far more than the “routine discomfort” which is “‘part of the penalty that criminal offenders must pay for their offenses against society.’”
The second component is subjective: “the prisoner must show that the defendant prison officials ‘acted with a sufficiently culpable state of mind’ with regard to the condition at issue.”“The proper standard is that of deliberate indifference.” While a showing of mere negligence is not enough, a prisoner need not show that an official purposely caused him harm or knew that harm would result. Rather, an official’s deliberate indifference is demonstrated where the official “knows of and disregards an excessive risk to inmate health or safety” caused by the denial of humane conditions. Plaintiffs may demonstrate a causal connection between the officials and the inhumane conditions where a prison’s “custom or policy results in deliberate indifference to constitutional rights.” Liability based on a custom or policy can result from either a facially unconstitutional custom or policy or from a facially constitutional custom or policy that is implemented in an unconstitutional manner. To show deliberate indifference based on the latter, the violations must be flagrant, widespread and continuous such that the defendant has actual or constructive knowledge of the pattern. Thus, a policy that can be humanely and properly applied — one that is facially constitutional — cannot lead to liability based on a single incident of deprivation. Rather, liability will only attach where, notwithstanding the otherwise facially constitutional policy, a pattern of unconstitutional conduct is so obvious as to put the official on
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notice that the implementation of the policy results in constitutional violations.
2009 WL 64616, at *20–21 (citations omitted). Similarly, Judge Corrigan includes
another admirably succinct and clarifying conclusion about “pepper spray”:
[T]he use of chemical agents as a means of force against a recalcitrant prisoner who refuses to obey an order generally does not, in itself, violate the Eighth Amendment. This is true even though chemical agents, by their very nature, are “designed to disable a [person] by causing intense pain, a burning sensation that causes mucus to come out of the nose, an involuntary closing of the eyes, a gagging reflex, and temporary paralysis of the larynx,” and, occasionally, “disorientation, anxiety, and panic in the person sprayed.” Thus, this degree of pain is constitutional because the effects are temporary — or at least are intended to be.
2009 WL 64616, at *22 (citations omitted). That latter observation places McNeil and
Bryant nicely in context; each opinion says much more and speaks much differently
than the plaintiffs suggest.
In paragraphs 328 through 333 the plaintiffs re-visit Youngberg and McNeil,
which are already evaluated and explained in this order. But paragraph 333
(Doc. 529 at 120) mentions Vinyard v. Wilson, 311 F.3d 1340 (11th Cir. 2002), an
action governed by the Fourth Amendment, not the Eighth Amendment, but which
is nonetheless instructive. Vinyard features the allegation of excessive force by an
officer on an arrestee during the drive in a patrol car from the scene of the arrest to
the jail. The arrestee claims that the officer stopped the patrol car on a “dark
secluded road,” exited the front door, opened the rear door, pulled back her hair,
and “sprayed her in the face with two to three bursts of pepper spray” while she
remained handcuffed in the back seat. Presuming the truth of the plaintiff’s
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allegations (although noting the officer’s sharply conflicting allegations), the
Eleventh Circuit found genuine issues of material fact that precluded the summary
judgment entered in favor of the officer. The Eleventh Circuit assumed the truth
of the plaintiff’s allegations that the plaintiff was “under arrest and secured with
handcuffs and in the back seat of the patrol car” when pepper sprayed by the officer.
Distinguishing the plaintiff’s circumstance from a circumstance involving resistance
or disobedience, Vinyard concludes:
Courts have consistently concluded that using pepper spray is excessive force in cases where the crime is a minor infraction, the arrestee surrenders, is secured, and is not acting violently, and there is no threat to the officers or anyone else. Courts have consistently concluded that using pepper spray is reasonable, however, where the plaintiff was either resisting arrest or refusing police requests, such as requests to enter a patrol car or go to the hospital. Furthermore, “‘as a means of imposing force, pepper spray is generally of limited intrusiveness,’ and it is ‘designed to disable a suspect without causing permanent physical injury.’” Indeed, pepper spray is a very reasonable alternative to escalating a physical struggle with an arrestee.
311 F.3d at 1348 (citation omitted). That the Eleventh Circuit in Vinyard finds
pepper spray a “very reasonable alternative” to an escalated physical struggle
is nowhere mentioned by the plaintiffs. But, further distinguishing a Fourth
Amendment circumstance from an Eighth Amendment circumstance, the Eleventh
Circuit concludes:
Although we have discussed pepper spray cases in the Fourth Amendment context of an arrest, we do not discuss the use of pepper spray in the prison setting because the Eighth Amendment controls such cases, and force does not amount to a constitutional violation in that setting if it is applied in a good faith effort to restore discipline and order and not “maliciously and sadistically for the very purpose of causing harm.”
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311 F.3d at 1349 n.15. Of course, that the Eleventh Circuit in Vinyard finds pepper spray “in the prison setting” a constitutional means to “restore discipline” is nowhere mentioned by the plaintiffs.
After the citation in paragraphs 334 through 336 of certain Florida and Texas administrative regulations, the plaintiffs in concluding this section of the proposed findings on “unreasonable restraints” return briefly to Mosley to emphasize that pepper spray is “designed to cause intense pain.” As far as it goes, this statement is inarguably true. But as Chief Judge Carnes and others have explained at length and repeatedly, pepper spray is designed to cause a tolerable and temporary but intense pain, to cause a burning sensation (not an actual burn, such as caused by fire), and otherwise to supersede the energy and impulse from a prisoner’s anger or aggression, which impels the prisoner into the violence or resistance that endangers himself and others. Pepper spray is designed and deployed to inflict a temporarily overwhelming discomfort that focuses the prisoner’s attention on the pepper spray and abruptly ends the prisoner’s focus on causing injury to himself or another or creating some threatening disruption or persisting in some provocative defiance. Pepper spray is designed as a lesser force, deployed to avoid the deployment of a greater force.
The plaintiffs’ next section in the proposed findings of law is entitled “The Constitution Prohibits the Placement of Children in Isolation for Extended Periods of Time or Without Due Process of Law.”
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The plaintiffs first cite H.C. by Hewett v. Jarrard, 786 F.2d 1080, 1088 (11th Cir. 1986), for the proposition that “children are particularly vulnerable to the risk of serious harms caused by isolation, such as mental anguish.” (Doc. 529 at 121, ¶ 338). In Hewett, the plaintiff Ogletree, a juvenile and a pre-trial detainee, was slammed into a wall and injured by the facility’s irate superintendent, placed in isolation, shackled, and for several days denied medical care for a conspicuous and painful injury (for which Ogletree later visited the emergency room). Although the superintendent attacked him, Ogletree was a “mere bystander,” 786 F.2d at 1085 n.6, who was “only giggling” at another inmate’s behavior. The circuit court found “no indication whatsoever” of a need to subdue Ogletree or use any force at all against him. Accordingly, because Ogletree violated no rule, created no disturbance, and warranted no discipline, the circuit court agreed with the district court that the force used against Ogletree was “punishment,” although as a detainee, Ogletree was not lawfully subject to “punishment.” But Hewett, which is principally about an award of nominal damages, carefully distinguishes between employing force to maintain discipline among detainees, which is essential, and employing force gratuitously and spitefully to punish a detainee, which is unconstitutional:
In light of the needless imposition of force, the subsequent shackling and denial of medical care, and the district court’s conclusion that length and conditions of isolation “amounted to punishment in violation of the due process clause,” we conclude that Wade’s shoving of Ogletree was one of a series of acts intended to punish Ogletree rather than maintain discipline.
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786 F.2d at 1086. The observation from Hewett cited by the plaintiffs in paragraph 338 is merely an aside. However, the fundamental and useful distinction, explained in Hewett, between “punishment” and “discipline” informs the heartland issues in the present action.
Next, in paragraph 339, the plaintiffs again cite Hewett and successively cite a 1970 district court order from New York, a 2006 district court order from Hawaii, and a 1982 district court order (but not the circuit court’s opinion partially vacating) from Puerto Rico, each cited on the subject of “isolation.” The first cited case, Lollis v. New York State Department of Social Services, 322 F. Supp. 473 (S.D.N.Y. 1970), an unappealed order granting a preliminary injunction, carefully stipulates that “I do not mean to intimate that the isolation of children under any circumstances is unconstitutional, but merely that the treatment of Lollis in this case violated permissible bounds,” a stipulation absent from the plaintiffs’ account. Lollis was a fourteen-year-old, the victim of parental neglect, and civilly committed under New York law as a “person in need of supervision.” Lollis was neither convicted of a crime nor accused of a crime nor awaiting a court appearance. In the facility, Lollis became “abusive and aggressive” and started a “fracas.” As a result, she was confined in a “strip room” in isolation, was left completely “unoccupied” (that is, having nothing to occupy her attention), and was wearing only pajamas until discovered by a New York family court judge, who procured her release. The result in Hewett, involving a person civilly committed for an indefinite term and avowedly
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based in part on New York law and the views of several local “experts,” is factually distinguishable from the present case and is, in all events, of little, if any, persuasive value.
R.G. v. Koller, 415 F. Supp. 2d 1129 (D. Haw. 2006), another unappealed order on a preliminary injunction, is cited by the plaintiffs as “recognizing expert testimony” that “long-term segregation or isolation of youth is inherently punitive,” and, “except in extreme circumstances, is a violation of due process.” In Koller, at a youth correction facility, characterized by the district court and the Department of Justice as “in a state of chaos,” juveniles “perceived as” or “identified as” lesbian, gay, bi-sexual, or transgender, after their subjection to a bizarre, pervasive, and relentless array of sordid aggression, verbal abuse, and threats, were subjected to “long-term” segregation and isolation “for their protection,” despite the LGBT juveniles’ having violated no rule and having created no disturbance. Because the juveniles were detainees and, therefore, not subject to “punishment” within the meaning of the Eighth Amendment, the district court found the imposition of “longterm” isolation was “punishment” prohibited by the Fourteenth Amendment. As Koller states in summary:
Consistently placing juvenile wards in isolation, not to impose discipline for violating rules, but simply to separate LGBT wards from their abusers, cannot be viewed in any reasonable light as advancing a legitimate nonpunitive governmental objective. [Hawaii Youth Correctional Facility] has attempted to remedy one harm with an indefensible and unconstitutional solution.
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415 F. Supp. 2d at 1156. Koller presents extraordinary and repellent facts that
comfortably warrant the result achieved. But the distinction — remarked and
observed in Koller — between regulatory isolation and punitive isolation remains
a central distinction in evaluating a claim in a constitutional “conditions of
confinement” action.
Next, the plaintiffs cite Santana v. Collazo, 533 F. Supp. 966 (D.P.R. 1982), as
“enjoining the use of isolation against all pretrial juvenile detainees.” (Doc. 529
at 122, ¶ 339). Santana addresses conditions of confinement at Puerto Rico’s
Mayaguez “maximum security” facility, the residents of which the district court
described:
There are thus four basic groups of juveniles at Mayaguez: mentally retarded juveniles, psychiatrically ill juveniles, those with minor psychological problems and serious social difficulties, and serious offenders. The first three groups comprise the majority of the population; mentally retarded juveniles are the most numerous. 533 F. Supp. at 980. The district court found that “pre-trial detainees” were present
at Mayaguez “at times” despite institutional policy and that:
Pre-trial detainees often spend long periods in the institution and in all cases are confined to isolation without access to any of the institution’s programs. 533 F. Supp. at 981. In other words, every pre-trial detainee assigned to Mayaguez
was placed in isolation as a means to separate the “mentally retarded” and other
troubled residents from the pre-trial detainees (or vice versa or both), although the
pre-trial detainees had violated no rule, created no disturbance, and defied no
instruction. The plaintiffs next attest that Santana was “rev’d on other grounds” by
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Santana v. Collazo, 714 F.2d 1172, 1181 (1st Cir. 1983), a review of which reveals that
no reversal occurred but, after discussing precisely the issue of the constitutionality of
isolation, the circuit vacated the district court order on isolation and remanded for
further proceedings, especially in light of Youngberg, which appeared after the district
court’s opinion (the district court had the benefit of only the circuit court’s mistaken
opinion in Youngberg, which the Supreme Court reversed, as explained earlier).
The First Circuit in Santana first agreed with the district court that the juveniles
at Mayaguez (who under Puerto Rico’s Minors Law are not “criminals” but only
“undisciplined” juveniles in detention) “have no constitutional right
to . . . rehabilitative training.” Santana notes that “the conditions of juvenile
confinement . . . are subject to more exacting scrutiny than conditions imposed on
convicted criminals” and observes that:
The distinction between conditions imposed for the legitimate purpose of maintaining institutional order and safety and those that amount to retribution is a fine one. 714 F.2d at 1180. The First Circuit next cites Ingraham v. Wright, 430 U.S. 651
(1977), for the distinction “between disciplinary punishment, which requires no
Eighth Amendment scrutiny, and retributive punishment, which requires a criminal
conviction.” 714 F.2d at 1180. The First Circuit in Santana concludes with respect
to isolation of the LGBT detainees:
[W]e would be unwilling to say, on the record before us, that the practice [of isolation] was unconstitutional. On the other hand, when a juvenile is confined in isolation for an extended period of time — sometimes months — with little attention from camp administrators or counselors, no exercise and no contact with other juveniles, it seems
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likely that the experience accomplishes nothing more than the unnecessary infliction of pain. Whatever the constitutional legitimacy of such practices in a prison, we consider ourselves charged by the Supreme Court’s due process analysis in Youngberg and Bell v. Wolfish to ask whether this significant restriction of the juveniles’ liberty interests is reasonably related to a legitimate government objective, or simply adds to the punishment already imposed by incarceration.
714 F.2d at 1181. The First Circuit remanded for further consideration, which
presumably the district court supplied (in an order not available). However, the
unavailable order was later appealed and again vacated and remanded for additional
further proceedings. Apparently, the district court entered an order and yet another
appeal occurred. The First Circuit’s second opinion, Santana v. Collazo, 793 F.2d 41
(1st Cir. 1986) (Santana II), presents another vacated order and another remand, after
which the history of this action disappears.
Noting that isolation of pre-trial detainees at Mayaguez permitted only eating,
sleeping, and one shower per day, Santana II repeats that Santana I “declined to find
that isolation in these circumstances was per se unconstitutional.” Instead, Santana II
adopts a sensible, moderate, fact-based evaluation derived from Youngberg:
[J]uveniles who have not been convicted of crimes have “a due process interest in freedom from unnecessary bodily restraint which entitles them to closer scrutiny of their conditions of confinement than that accorded convicted criminals”. Id. See Youngberg v. Romeo, 457 U.S. 307, 102 S. Ct. 2452, 73 L. Ed. 2d 28 (1982) (restrictions on liberty of involuntarily confined mentally-retarded patients must be reasonably related to legitimate government interests). Moreover, because the Commonwealth has no legitimate interest in punishing such juveniles as retribution for past misdeeds (as may be permissible in the case of convicted criminals), restrictions on their liberty must be justified on the basis of other objectives — rehabilitation, safety, or internal order and security. 714 F.2d at 1180.
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We recognized, however, that administrators of a juvenile home must be allowed to punish residents for the purpose of discipline. 793 F.2d at 43.
Although the district court’s order on remand is unavailable, Santana II reports
that the district court found “that isolation as used at Mayaguez meets constitutional
requirements,” 793 F.2d at 41, based on an explicit finding by the district court that is
restated in full by the circuit court (but not identified by the plaintiffs):
“[I]t now appears that juveniles held in the Special Treatment Unit are given a daily exercise/recreation period, are permitted more reading materials than previously, and receive educational and tutoring services. In addition, written Mayaguez policy now limits isolation to a maximum of 10 days for first offenses, and 20 days in instances of multiple or recurring disciplinary offenses.” Santana v. Collazo, No. 75–1187, slip op. at 7 (D.P.R. Oct. 30, 1984). 793 F.2d at 44.
In remanding again for further findings by the district court, Santana II tasked
the district court to determine “whether this improved system of isolation is
sufficiently related to the Commonwealth’s legitimate objectives,” described earlier in
Santana II as rehabilitation, safety, or internal order and security. To expedite the
inquiry, the First Circuit directed the district court (1) to examine “not isolation in
the abstract but the congeries of conditions attending the precise kind of isolation
imposed on juveniles in the case at bar,” 793 F.2d at 44–45, (2) to determine whether
a “reasonable relationship” existed between the “isolation practiced at Mayaguez
and the Commonwealth’s interests in ensuring the safety of staff, public, and inmates
and rehabilitating those placed in isolation,” 793 F.2d at 45, while remembering that
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“the least restrictive alternative” is not constitutionally required but that a “rational relationship” is required, and (3) to defer to the determination of a “professional decisionmaker,” “competent . . . by education, training, or experience,” whose decision is “presumptively valid.” Santana II, echoing Youngberg, reminds the district court that:
It is not the court’s task to choose from among several professionally acceptable choices, but only to determine whether defendants’ system of isolation is supported by some professional judgment. A court need not accept a professional judgment, however, if it is “a substantial departure from accepted professional judgment, practice, or standards.” 793 F.2d at 45 (citations omitted). This is nowhere near “enjoining the use of isolation against all pretrial juvenile detainees,” as the plaintiffs’ paper claims. Next, the plaintiffs assert that “many courts have imposed limitations on the use of isolation in juvenile settings.” (Doc. 529 at 122, ¶ 340). For this, the plaintiffs cite a 1982 Tenth Circuit opinion, cite a “stipulation” entered in federal district court in New York (Judge Scheindlin), cite Santana v. Collazo (discussed above) again, cite a 1984 West Virginia state case, and three district court cases, two from 1976 and one from 1977. So, the inquiry recurs, to what extent have courts “imposed” restrictions on isolation, as the plaintiffs assert? Obviously, the Tenth Circuit case, Milonas v. Williams, 691 F.2d 931 (10th Cir. 1982), cited first by the plaintiffs and entitled to at least some precedential value, warrants attention. The plaintiffs in a parenthetical following the citation say, “[I]solation allowed only to contain boy who is physically violent.” (Doc. 529
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at 122, ¶ 340). Milonas involves the Provo Canyon School, a “privately owned and
operated” boys’ school that received government money. Milonas describes the boys
at the school:
All of the boys admitted to the school have problems of one sort or another, including physical, psychological, and emotional problems, and are handicapped by a general inability to conform to normal behavioral standards.
691 F.2d at 935. Milonas notes that the Provo Canyon School is not a school in
the traditional, ordinary, or classical sense” but a “last resort” for the children of
parents who encountered “extensive disciplinary problems” and were “unable to
control their child.” 691 F.2d at 936. Milonas reports that the district court enjoined
four challenged practices and refused to enjoin nine. Milonas describes the school’s
use of isolation “at the time of this suit”:
As indicated, the Provo Canyon School maintained and used so-called “isolation rooms,” also referred to as “prescription rooms,” or “quiet rooms,” or “time-out rooms.” These rooms were approximately 4N X 8N X 9N, were carpeted, contained no furniture, and had one small window in the door. Individual students were placed in these rooms as punishment for the violation of school rules or when the boys were believed to be emotionally or physically out of control. Boys placed in the isolation rooms were checked periodically by school authorities. As of the time this suit was commenced, the boys were not kept in the isolation room for more than 24 hours.
691 F.2d at 941. Because the exact terms of the injunction are unavailable, the extent
to which the injunction contracted or merely preserved the school’s isolation practice
is unclear. The constitutional standard applied in Milonas conforms to and cites the
“reasonable relationship” test of Youngberg. Milonas’s precise holding (other than to
affirm the district court) is unclear with respect to isolation but Milonas attempts to
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follow Youngberg and Bell v. Wolfish, 441 U.S. 520 (1979), the two principal precedents at the time. In this event, no “imposed” limitation appears.
The plaintiffs, still under the heading of “limitations” supposedly “imposed” by “many courts,” next cite the parties’ unpublished stipulation of settlement entered in Peoples v. Fischer, an action in the Southern District of New York. The plaintiffs say this stipulation “limits” isolation. Yes, but the stipulation, although signed by Judge Scheindlin, was not “imposed” or even enforced by the court. Section 1(B) of the stipulation confirms that the obligations are “voluntarily” undertaken, “that none of the terms of this Stipulation . . . shall constitute ‘So Ordered’ prospective relief enforceable in any court,” and that if the Plaintiffs become dissatisfied, the court will vacate the stipulation and the litigation will resume. No. 1:11-cv-2694, Doc. 124 at 2. Although the stipulation is difficult to interpret (but distinctly not an “imposition” or an adjudication of any kind), the Department of Correction apparently agreed to five-days-a-week “out-of-cell programming and outdoor exercise” for someone in isolation, except in exceptional circumstances,” and other concessions, as well. Failing to contain the judicial imposition of a constitutional limitation on isolation, the parties’ voluntary stipulation of settlement in Fischer lacks pertinence in evaluating the Polk County juvenile detention center.
The plaintiffs next cite Santana II, in this instance for the statement: Finally, courts that have considered isolation for juveniles have with near unanimity limited such confinement to twenty-four hours, with only rare exceptions allowed.
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793 F.2d at 41. In a footnote to this quote, Santana II cites in support of this
“observation” the same cases next cited by the plaintiffs in the proposed findings,
each of which warrants a brief examination.
First, the plaintiffs cite State ex rel. J.D.W. v. Harris, 319 S.E.2d 815
(W. Va. 1984), which involves two juveniles allegedly subject to abuse. J.D.W.
allegedly was attacked by a guard and beaten in his “security room”; for being “out
of control,” K.R. allegedly was “locked down” for an “extended” time in a room
with no light, no furniture, a “bare mattress,” and no toilet. Finding the record
“insufficiently developed,” the court remanded for further proceedings to determine
whether J.D.W. was the attacker or the attacked and to determine whether K.R. was
“out of control.” Citing State ex rel. K.W. v. Werner, 242 S.E.2d 907 (W. Va. 1978),
the court notes this unremarkable finding with respect to J.D.W.:
J.D.W.’s rights would have been violated if, in fact, his allegation of an unprovoked attack by the correctional officer is true. . . . “Punitive practices such as . . . beating, slapping, kicking or otherwise physically abusing juveniles . . . is cruel and unusual punishment forbidden by the state constitution, and every person subjected to any of them absent exigent circumstances, shall be entitled to redress.”
319 S.E.2d at 821. Similarly, assuming K.R. was not “out of control” and invoking a
West Virginia statute, the court notes:
In addition, with respect to K.R., the respondent has admitted to this Court that the relator was locked alone in his room for an extended period of time during which the relator was not “out of control.” W. Va. Code, 49–5–16a(3) [1978], clearly states: “Except for sleeping hours a child in a state facility shall not be locked alone in a room unless such child is out of control . . . .”
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319 S.E.2d at 821. Contrary to the plaintiffs’ assertion, Harris “imposes” no federal
constitutional “limitation” on isolation.
The plaintiffs next cite, in support of the premise “limiting isolation to
24 hours and only when there is an immediate threat to safety,” Morgan v. Sproat,
432 F. Supp. 1130 (S.D. Miss. 1977), which arose under the arcane Mississippi
Youth Court Act, which permitted the imposition of an adjudication of
“delinquency” on a juvenile from ten to eighteen “upon the petition of a ‘reputable
person.’” Mississippi defined a delinquent child as:
any child “whose occupation, behavior, environment or associations are injurious to his welfare or the welfare of other children,” and includes children who have run away from home, who are “habitually disobedient to or beyond the control” of their parents, who violate school rules or are willfully truant, or who deport themselves so as to injure or endanger the morals or health of themselves or any other person. § 43–21–5. The conduct for which juveniles may be incarcerated need not constitute a violation of any of the state’s criminal laws.
432 F. Supp. at 1134.
In other words, the statute permitted the prolonged confinement — including
for a term of years until age twenty — of a wide array of troubled or at-risk juveniles,
who had committed no criminal act, were charged with no crime, and were not
awaiting trial. Morgan deals with the involuntarily, civilly committed juveniles,
confined solely for “treatment and rehabilitation and incarcerated” without affording
the full panoply of due process safeguards. 432 F. Supp. at 1136. The legal analysis
of the conditions of confinement of a long-term, civilly committed juvenile is
different, of course, from the analysis of the conditions of confinement of a pre-trial
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juvenile detainee. In Morgan, even if the juvenile only “behaved inadequately” or was merely “disrespectful,” the “school” officials used grim conditions of isolation purportedly to “provide intensive counseling and treatment and to enable students to adjust to institutional life.” Morgan predictably finds the Mississippi “school” program violative of the Eighth Amendment.
Next, the plaintiffs cite, adjoining the parenthetical “limiting isolation to six hours except in ‘the most extreme circumstances,’” Pena v. New York State Division for Youth, 419 F. Supp. 203 (1976), which again features an unappealed district court opinion. Pena, a companion case to Lollis, involves the Goshen Annex Center, a training school for teenage boys adjudicated civilly “delinquent,” involuntarily committed under a New York statute, and transferred to a “maximum security” facility because of “behavior problems” elsewhere. Pena holds, quite unsurprisingly, that the Fourteenth Amendment guarantees to an involuntarily, indefinitely, and civilly committed youth a program of rehabilitation. Pena resolves a claim about whether practices at Goshen were punitive and “anti-therapeutic,” which at a school for the civilly committed is unwarranted. Pena “accepts,” however, placement in isolation for boys “because their violent behavior represents a threat to themselves or others,” so long as “they might be released as soon as their violent mood subsided.” Again, Pena is inapposite to the Polk County juvenile detention center, although Pena recognizes a place for isolation, even in a school for civilly committed youth.
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The plaintiffs’ final cite in paragraph 340 is Gary W. v. State of Louisiana,
437 F. Supp. 1209 (E.D. La. 1976), which again involves Louisiana children civilly
committed in Louisiana but confined in Texas. As Judge Rubin explained:
The children who are plaintiffs have widely differing characteristics. Some are normal children who have been abandoned by their parents; some are normally intelligent but socially delinquent; some are emotionally disturbed; some are mentally retarded; and some are physically handicapped in varying degrees. Many of the children suffer from a combination of afflictions; for example a single child may suffer from physical disability, emotional disturbance and mental retardation. Some children in their teens are hydrocephalic, have never been toilet trained, are unable to walk and have IQ’s under 20. The characteristics all the plaintiffs share are that all are children from Louisiana; all are in Texas institutions; and the State of Louisiana has played some part in their placement.
437 F. Supp. at 1213. The analytical framework for this group of civilly confined
persons differs importantly from the analytical framework applicable to the Polk
County juvenile detention center. In Gary W. the juveniles are civilly committed
indefinitely for treatment and rehabilitation; in Polk County, after a due process
hearing before a state court judge, the juvenile detainees are briefly detained to await
trial for a crime. Finally, the plaintiffs in paragraph 340 cite page 1229 of Gary W. as
“limiting isolation” to twelve hours. A vigorous search of page 1229 and the balance
of Gary W. reveals nothing about isolation; page 1229 discusses restricting “physical
restraints” to twelve hours.
Paragraph 341 of the plaintiffs’ proposed findings purports to define
“isolation,” although the purpose for the definition remains unclear. The plaintiffs
first cite a stipulation for injunction entered in the Southern District of Ohio
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(incorrectly cited by the plaintiffs as the Eastern District) and appearing on the Southern District of Ohio’s docket at Doc. 108 (a reference unhelpfully omitted by the plaintiffs). To say the least, a stipulated definition of “isolation” found in an Ohio district court case is unhelpful. Also, paragraph 341 cites the definition of “isolation” used in Koller and Pena, both of which are already discussed.
Paragraph 343 claims that Diamond v. Thompson, 364 F. Supp. 659 (M.D. Ala. 1973), affirmed by the Fifth Circuit (and, if so, binding precedent in the Eleventh Circuit), holds that “any imposition of isolation beyond an immediate and brief time-out requires procedural due process” — a startling and clarifying holding, if the plaintiffs’ report is correct.
Written by the distinguished jurist Judge Frank Johnson (in ten pages) and affirmed by the Fifth Circuit (in five paragraphs), Diamond begins with a singular description of the plaintiffs:
Most of the named plaintiffs in this suit are troublemakers, knowledgeable in manipulating and maneuvering others to their advantage. They are experienced in filing charges and in litigating against prison officials. They, and other inmates, have adopted the position that this Court stands ready to intervene in the administration of the prison system whenever they complain, regardless of the charge. The named plaintiffs and others continually attempt to coerce prison employees by threatening to file suit in this Court. 364 F. Supp. at 662. Judge Johnson next notes the “resentment” of Alabama prison officials at supposedly “improper interference” with prison administration. Nonetheless, because “troublemaking” prisoners remain entitled to due process of
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law and because disgruntled prison officials remain empowered and obligated to
administer the prison system, the case continued.
“Work stoppage” and “sit down” demonstrations occurred at a prison and
twenty-five prisoners “believed” responsible for the incidents were transferred to
another institution and placed in “administrative segregation” without a hearing.
Diamond explains that a new prisoner receives temporary quarantine before
classification and after classification receives either “general population,”
“administrative isolation,” or “primitive isolation.” The result in Diamond is simple
and incontestable:
Procedural due process is required whenever an individual will be “condemned to suffer grievous loss.” It is widely recognized that, in a prison context, withdrawal of privileges or the imposition of more burdensome conditions of confinement may constitute a grievous loss calling for procedural safeguards. . . .
Defendants in this case admit that loss of good time is a sufficient deprivation to warrant a prior due process hearing.
364 F. Supp. at 664 (citation omitted). The question in Diamond was whether this
“administrative measure” effected a “grievous loss” when occurring “in the prison
context.” No reading of Diamond permits the conclusion that “any imposition of
isolation” requires a hearing, even in a prison. As Judge Johnson said in Diamond:
The touchstone, as in other areas, is reasonableness. For example, if an inmate has escaped from prison, there appears to be no reason to conduct a hearing prior to placing him in the security of administrative segregation. Similarly, an admitted homosexual can be segregated for his safety or the safety of other inmates without elaborate procedural safeguards. These examples, however, are in marked contrast to the transfer from Atmore. Prison officials, with justifiable cause, transferred inmates in an attempt to break the strike by removing the leadership. They had the right to do this summarily in such an
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emergency situation. It was not certain, however, whether all those who had been so hastily removed were in fact leaders of, or even strong supporters of, the strike. Under the circumstances reasonable investigation into the relevant facts could not be made without a due process hearing. This hearing should have been conducted within a reasonable time after transfer. Absent unusual circumstances, 48 hours would constitute a reasonable time.
364 F. Supp. at 665 (citation omitted). Decided in the context of adults serving a
lengthy prison sentence, Diamond has little, if any, pertinence to the management of a
juvenile detainee.
In paragraph 344, which along with paragraph 345 completes the section of
the plaintiffs’ proposed findings of law on the subject of isolation, the plaintiffs cite
Morales v. Turman, 569 F. Supp. 332 (E.D. Tex. 1983), and Gary H. v. Hegstrom,
831 F.2d 1430 (9th Cir. 1987), for this premise:
Constitutionally required procedural due process includes written notice of the reasons for placement in isolation, review by an impartial administrator, an opportunity for the child to present his position, with assistance upon request, a written statement of the decision provided to the child, and an appeals process.
(Doc. 529 at 124, ¶ 344) Actually, Morales is the approval of a settlement agreement
and not the adjudication of a dispute; Morales “holds” nothing and “permits”
nothing. Morales was the conclusion of a lengthy and tortuous dispute about civilly
committed “delinquents” in the care of the Texas Youth Council. Again, the facts
are not comparable to the conditions of the temporary detention of juveniles awaiting
trial and detained after a due process hearing before a judge. In fact, Morales
approves a settlement that installs a regime of much greater strictness and in much
greater detail than the Fourteenth Amendment requires.
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Gary H. vacates and remands an order by the district court that “finally adopted as a remedial order virtually the entire wish list of the plaintiffs” for the conditions affecting “adolescent wards of the juvenile court,” a status found “noncriminal and nonpenal” and “educational and reformatory.” 831 F. 2d at 1432. Gary H. adopts the theme of a “reasonable balance” that recurs after Youngberg:
The court appeared to be of the opinion that any treatment falling short of standards adopted by various professional associations was suspect, and probably violated the United States Constitution. . . . The Constitution requires only minimally adequate training, and reasonable balance between liberty interests and the institution’s operational needs. See Youngberg, 457 U.S. at 322–23, 102 S. Ct. at 2461–62. 831 F.2d at 1432. The plaintiffs’ final section addresses the proposition that “Children are Entitled to Adequate Mental Health Care.” The argument begins with a reference to Youngberg for the requirement of “adequate medical care.” Earlier, this order outlines Youngberg’s holding that, in the instance of a severely “mentally retarded” and indefinitely, civilly committed juvenile, the state must “provide minimally adequate or reasonable training to ensure safety and freedom from undue restraint.” 457 U.S. at 318. These words, which — fairly construed — require training (for example, in personal hygiene) and care (for example, psychotropic medication) so that a totally dependent, indefinitely committed, impaired person might avoid complete isolation or total restraint, apply only awkwardly, if at all, to the conditions of a juvenile detainee in Polk County.
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The plaintiffs next cite Brown v. Plata, 131 S. Ct. 1910 (2011), a suit about
prison overcrowding in California, in support of the requirement for “basic
sustenance, including adequate medical care,” a requirement that is uncontested in
this action. The plaintiffs next cite Estelle v. Gamble, 429 U.S. 97 (1976), for the
“deliberate indifference” standard applicable to medical care. After reiterating that
the Eighth Amendment forbids “the unnecessary and wanton infliction of pain,”
Estelle elaborates the practical meaning of the standard:
These elementary principles establish the government’s obligation to provide medical care for those whom it is punishing by incarceration.
. . . .
This conclusion does not mean, however, that every claim by a prisoner that he has not received adequate medical treatment states a violation of the Eighth Amendment. An accident, although it may produce added anguish, is not on that basis alone to be characterized as wanton infliction of unnecessary pain.
. . . .
Similarly, in the medical context, an inadvertent failure to provide adequate medical care cannot be said to constitute “an unnecessary and wanton infliction of pain” or to be “repugnant to the conscience of mankind.” Thus, a complaint that a physician has been negligent in diagnosing or treating a medical condition does not state a valid claim of medical mistreatment under the Eighth Amendment. Medical malpractice does not become a constitutional violation merely because the victim is a prisoner. In order to state a cognizable claim, a prisoner must allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs. It is only such indifference that can offend “evolving standards of decency” in violation of the Eighth Amendment.
429 U.S. at 104–06. The Supreme Court in Estelle exonerates Gamble’s doctor after a
series of medical mishaps more serious by far than anything alleged in this action
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about juvenile detention at CCJ, but Estelle repeats that “deliberate indifference to a prisoner’s serious illness or injury states a cause of action under § 1983.” 429 U.S. at 105.
In paragraph 347, the plaintiffs cite three opinions from the Eleventh Circuit for the unqualified assertion that:
Deliberate indifference is established where Defendants have provided grossly inadequate medical care, select an easier but less effective course of treatment, or provide medical care “so cursory as to amount to no treatment at all . . . .” (Doc. 529 at 125, ¶ 347). The plaintiffs’ first citation, Ancata v. Prison Health Services, Inc., 769 F.2d 700 (11th Cir. 1985), is an appeal from a dismissal of the complaint under the pre-Iqbal2 and pre-Twombly3 pleading standard that required the defendant to show “that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” 769 F.2d at 702. Ancata alleged that in detention he suffered an array of symptoms (“including swelling of the ankle, inability to sleep, chills, lower back pain, tingling and numbness of his hands, hyperventilation, severe pain in his back and right leg, double vision, and other serious problems,” 769 F.2d at 702), that the defendants “did little or nothing,” that the defendants refused to permit a doctor to diagnose or treat him without a court order, and that the defendants demanded payment even for the services provided under the court order. After a second court
2 Ashcroft v. Iqbal, 556 U.S. 662 (2009). 3 Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007).
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order, Ancata was hospitalized and diagnosed with leukemia, soon after which he died from respiratory failure.
Unsurprisingly, Ancata holds that a claim for relief is stated by a complaint alleging a knowing and defiant refusal to permit diagnosis and treatment of a serious medical condition, promptly resulting in death. Ancata finds three “overlapping aspects” to the defendants’ “deliberate indifference.” First, the defendants failed to provide “even that level of diagnostic care that they themselves believed necessary.” Second, the defendants refused medical attention to Ancata “because he would not pay.” Third, as the plaintiffs acknowledge, the defendants’ attention to Ancata’s medical needs “was so cursory as to amount to no treatment at all.” 769 F.2d at 704.
The plaintiffs’ second citation is McElligott v. Foley, 182 F.3d 1248 (11th Cir. 1999), in which Elmore, when “incarcerated on August 4,” reported five months of “abdominal pains”; promptly exhibited “severe abdominal pain, vomiting, and nausea”; and reported abdominal cramping and “fire” in his stomach. Although Elmore received only a “liquid diet” and “pepto-bismol,” his symptoms worsened, which he reported. The doctor saw Elmore for the first time on September 3, noted the hyper-sensitivity of Elmore’s stomach to touch, but prescribed only “anti-gas medication” and “ordered blood work.” The doctor noted that Elmore’s feces emitted a “foul smell.” On October 22, Elmore reported that his pain was “stronger, harder, and more frequent.” By December 1, Elmore’s pleas for help (“NEED HELP IN SEVERE PAIN”) heightened in urgency. By January 27, Elmore reported
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to the doctor, “I feel like I’m dying.” On February 2, Elmore was still vomiting and pale and weighed only 128 pounds. The doctor testified that Elmore had “deteriorated considerably.” On February 10, “weak and emaciated” and after a CT scan and chest x-ray, Elmore was admitted to the hospital, but he was released within two days from both jail and the hospital because of the prospective cost of his treatment. Several days later, admitted to the VA hospital, Elmore was diagnosed with terminal colon cancer.
Certainly McElligott is an example of protracted, deliberate, and injurious indifference to Elmore’s “serious medical needs,” which were obvious, understood, and ignored; the unnecessary and wanton infliction of pain; and the gratuitous exposure of an inmate to a serious risk of serious injury or death. Because the district court granted summary judgment for the defendants, McElligott reverses and remands for trial.
Waldrop v. Evans, 871 F.2d 1030 (11th Cir. 1989), cited third by the plaintiffs, much like Ancata and McElligott, presents egregious facts, in all respects dissimilar to the facts of juvenile detention at CCJ. To a charge of armed robbery, Waldrop pleaded “guilty but mentally ill.” His initial classification in prison was “manic depression,” which was controlled by medicine. Soon after Waldrop’s medicine was discontinued, his condition “deteriorated rapidly.” Suffering from nightmares and insomnia, Waldrop slashed his forearm, “gouged out” his left eye, cut off his testicles with a razor blade, and “while under restraint” managed to damage and blind his
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right eye. Waldrop’s guardians sued, among others, the prison psychiatrist and the “staff physician,” both of whom claimed qualified immunity, which Waldrop disallows.
Ancata, McElligott, and Waldrop exemplify deliberate indifference to a serious medical need and the wanton exposure of an inmate to substantial risk of serious harm — in fact, to a high risk of death; nothing in the evidence of this action that has occurred at CCJ to a juvenile detainee approaches within a million miles the abhorrent conduct in Ancata, McElligott, and Waldrop.
In paragraph 348 of the proposed findings (Doc. 529 at 125), the plaintiffs again cite Goebert, already discussed, for the premise that the objective component of “deliberate indifference” requires a “serious medical need.” Although the plaintiffs omit the definition, Goebert defines a “serious medical need”:
A medical need that is serious enough to satisfy the objective component “is one that has been diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person would easily recognize the necessity for a doctor’s attention. 510 F.3d at 1326. In other words, not every medical need, not every injury, not every wound, and not every discomfort or indisposition presents a serious medical need, the neglect of which exposes a prisoner or a detainee to a substantial risk of serious harm resulting in the “unnecessary and wanton infliction of pain.” 510 F.3d at 1330. Also, Goebert discusses the “subjective component” of “deliberate indifference” to a “serious medical need,” which requires a plaintiff to prove the prison officials’ subjective knowledge of a substantial risk of serious harm to an inmate, the disregard
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by the prison officials of that substantial risk of serious harm, and conduct by the
prison officials that exceeds gross negligence. 510 F.3d at 1312. And, of course, a
“causal connection” must exist between a “constitutional harm” and the defendant.
510 F.3d at 1312.
In Goebert, as in the present action, the Sheriff was sued “in his official
capacity,” which prompted Goebert to include the explanation that:
In order to establish that a defendant committed a constitutional violation in his supervisory capacity, a plaintiff must show that the defendant instituted a “custom or policy [that] result[s] in deliberate indifference to constitutional rights or . . . directed [his] subordinates to act unlawfully or knew that the subordinates would act unlawfully and failed to stop them from doing so.”
510 F.3d at 1312. Goebert defines a “custom” as “an unwritten practice that is
applied consistently enough to have the same effect as a policy with the force of law.”
510 F.3d at 1332. Similarly, Goebert defines a “policy” as a “decision that is officially
adopted by the municipality or created by an official of such rank that he or she could
be said to be acting on behalf of the municipality.” Goebert adds, “Demonstrating a
policy or custom requires showing a persistent and widespread practice.” 510 F.3d
at 1332. Encapsulating the Eleventh Circuit’s precedents, Goebert concludes:
Our decisions establish that supervisory liability for deliberate indifference based on the implementation of a facially constitutional policy requires the plaintiff to show that the defendant had actual or constructive notice of a flagrant, persistent pattern of violations. “The deprivations that constitute widespread abuse sufficient to notify the supervising official must be obvious, flagrant, rampant and of continued duration, rather than isolated occurrences.”
510 F.3d at 1332 (citation omitted).
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In paragraph 349 of the proposed findings (Doc. 529 at 125), the plaintiffs cite Farrow v. West, 320 F.3d 1235, 1243 (11th Cir. 2003), for the premise that a “serious medical need” is “one that has been diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person would easily recognize the necessity for a doctor’s attention.” Equally important to note is, as explained in the next sentence of Farrow, that not every diagnosed or obvious medical need qualifies as a “serious medical need.” As Farrow says of both the diagnosed and the obvious medical condition:
In either of these situations, the medical need must be “one that, if left unattended, ‘pos[es] a substantial risk of serious harm.’” The inmate Farrow had only two teeth and needed dentures. Farrow’s gums were bleeding, his gum pain was persistent, he “improvised” for himself a “soft diet” (consumable by pressing his tongue to the roof of his mouth), and he suffered dramatic weight loss. Fifteen months elapsed from the medical diagnosis to Farrow’s receipt of his dentures. Reversing the summary judgment recommended by the magistrate judge and entered by the district judge, Farrow finds that Farrow’s allegations present a genuine issue of material fact because, “[i]n certain circumstances, the need for dental care combined with the effects of not receiving it may give rise to a sufficiently serious medical need to show objectively a substantial risk of serious harm.” 320 F.3d at 1243–44. Farrow’s importance is confirming that in a sufficiently egregious circumstance a prison official’s deliberate indifference to dental needs can present at least a triable claim of an Eighth Amendment violation.
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Because Farrow announces no new standard, perhaps the most useful and
informative component of Farrow is footnote 14 that juxtaposes circumstances that
are violative of the Eighth Amendment with circumstances that are not:
Compare Adams v. Poag, 61 F.3d 1537, 1539–41, 1543 (11th Cir. 1995) (asthma, with continual breathing problems and with intermittent wheezing, coughing, and hyperventilating, can constitute a serious medical need), and Brown v. Hughes, 894 F.2d 1533, 1538 (11th Cir. 1990) (painful broken foot can be serious medical need), and Mandel v. Doe, 888 F.2d 783, 788 (11th Cir. 1989) (evidence showing that plaintiff’s leg collapsed under him, was deteriorating, caused pain when moved, and that he was virtually unable to walk, supported jury’s conclusion that plaintiff had serious medical need), and Aldridge v. Montgomery, 753 F.2d 970, 972–73 (11th Cir. 1985) (one-and-a-half-inch cut over detainee’s eye bleeding for two and a half hours was a serious medical need), with Shabazz v. Barnauskas, 790 F.2d 1536, 1538 (11th Cir. 1986) (inmate’s “pseudofolliculitis barbae” or “shaving bumps,” even if shaving required by prison officials when physician ordered otherwise, “does not rise to the level of the cruel and unusual punishment forbidden by the Eighth Amendment”), and Dickson v. Colman, 569 F.2d 1310, 1311 (5th Cir. 1978) (inmate’s high blood pressure presented no “true danger” or “serious threat” to his health; he also had full range of motion in his shoulder despite continuing pain from a three-year old injury).
320 F.3d at 1243 n.14. Of course, a condition, including many dental conditions,
that presents a substantial risk of serious harm during a lengthy prison sentence might
not present a substantial risk of serious harm during a brief, pre-trial detention.
In paragraph 350 (Doc. 529 at 126), a series of mere conclusions more factual
than legal and without citation, the plaintiffs assert that mental health care for Polk
County juvenile detainees was “grossly inadequate” and the like. Similarly, in the
first sentence in paragraph 351 the plaintiffs assert another conclusion, purely factual
and without citation, that the defendants were “aware” of “mental illness” among
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juvenile detainees. The second sentence of paragraph 351 asserts, again an assertion in the nature of a fact, not law, that because the defendants know that some detainees have a “mental illness,” the defendants “therefore” have a “subjective awareness of the relevant risk.” (As explained below, in discussing Cook ex rel. Estate of Tessier v. Sheriff of Monroe County, Florida, 402 F.3d 1092 (11th Cir. 2005), applicable law soundly refutes this notion.)
For this latter factual conclusion about the state of mind of the officials at the Polk County juvenile detention center, the plaintiffs cite Steele v. Shah, 87 F.3d 1266, 1269 (11th Cir. 1996), which reverses a summary judgment and remands for “further proceedings” (although on remand the district court immediately granted another summary judgment for Shah). A long-time addict with a history of suicide attempts, Steele alleged that he was sentenced to twenty-five years’ imprisonment and incarcerated in Polk County, where he was diagnosed, treated, and medicated with psychotropic drugs by the prison’s psychiatrist and “psychological specialist”; “remained within normal psychological limits”; and was “slowly improving.” 81 F.3d at 1267. Upon Steele’s transfer to Orange County, Shah — according to Steele — abruptly and without meaningful evaluation discontinued Steele’s psychotropic medication after a “one minute” meeting in a “glass-walled conference room.” Steele’s condition reportedly deteriorated severely, despite Steele’s filing grievances about his treatment and despite “concerns” expressed by the Polk County psychiatric team. Steele’s action under Section 1983 alleged that for his 182 days in
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Orange County Shah maintained a “deliberate indifference” to Steele’s suffering from
“insomnia, anxiety, and various bodily pains,” as well as “feelings of hopelessness
and helplessness” that might trigger suicidal ideation. Quite apart from “the
prevalence of mental illness among incarcerated children,” which the plaintiffs offer
as a lesson of the case, Steele clearly and succinctly explains itself:
A jury accepting Steele’s account of his encounters with Shah and of Shah’s conduct would be entitled to find that Shah discontinued Steele’s medication on the basis of one cursory interview and without having reviewed any medical records beyond the Treatment Plan sent over from the Polk facility. It could thus “conclude that [Shah] knew of a substantial risk from the very fact that the risk was obvious” and that Shah deliberately disregarded that risk. It could further find that in ample time to make a different medical judgment or at least to reconsider that made, Shah was aware from Polk personnel that Steele was considered by them to be a potential suicide risk, and that that was one basis for their prescription of the psychotropic drugs. We do not hold that such findings would compel an ultimate finding of deliberate indifference under Greason and Farmer, only that they would support such a finding. That suffices to demonstrate that on the summary judgment record there were genuine issues of material fact.
87 F.3d at 1270.
The next sentence in paragraph 351 of the plaintiffs’ proposed findings of law
states that the plaintiffs need only show — say the plaintiffs — “a risk of future
harm,” which is a critically diminished version of the governing principle that the
plaintiffs need not show an actual serious harm — but need to show “a substantial
risk of serious harm” — not just “any risk of any harm.”
The plaintiffs next cite Helling v. McKinney, 509 U.S. 25, 33 (1993), for their
claimed “any risk of any harm” standard. In McKinney, a procedurally contorted
case, the plaintiff shared a prison cell with an inmate who smoked five packs of
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cigarettes each day. During the jury trial, the magistrate judge directed a verdict but
the plaintiff appealed. After the case traveled twice back and forth from the Supreme
Court to the Ninth Circuit, the Supreme Court affirmed, remanded, and explained:
The Court of Appeals has ruled that McKinney’s claim is that the level of [environmental tobacco smoke] to which he has been involuntarily exposed is such that his future health is unreasonably endangered and has remanded to permit McKinney to attempt to prove his case. In the course of such proof, he must also establish that it is contrary to current standards of decency for anyone to be so exposed against his will and that prison officials are deliberately indifferent to his plight. We cannot rule at this juncture that it will be impossible for McKinney, on remand, to prove an Eighth Amendment violation based on exposure to [environmental tobacco smoke].
509 U.S. at 35. Although of only narrow application, McKinney finds that deliberate
indifference to the prospect of a substantial risk of serious harm from second-hand
cigarette smoke, because not logically “impossible,” was sufficient to warrant a trial
in the instance of a five-pack-a-day smoker in a single prison cell with a suitably
susceptible cellmate. In discussing the claim, McKinney analogizes environmental
tobacco smoke usefully, first, to unsafe drinking water that threatens dysentery and,
second, to inmates, some of whom have venereal disease, crowded together in an
isolation cell; each analogue offers a substantial risk of a serious harm. McKinney
decides that the trial judge cannot preempt the plaintiff’s attempt to prove that a five-
pack-a-day barrage of cigarette smoke presents a comparable risk of a comparable
harm, a determination that is singularly fact-dependent.
In paragraph 352, the plaintiffs cite Cook ex rel. Estate of Tessier v. Sheriff of
Monroe County, Florida, 402 F.3d 1092, 1115 (11th Cir. 2005), for the premise that the
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right of a pre-trial detainee to medical treatment for an injury or illness that creates a
substantial risk of a serious harm includes mental health treatment for a condition
that creates a substantial risk of suicide. In explanation, Cook also states, but the
plaintiffs omit, that:
Under this Circuit’s precedent, in a prison suicide case, deliberate indifference requires that the defendant deliberately disregard “a strong likelihood rather than a mere possibility that the self-infliction of harm will occur.” “[T]he mere opportunity for suicide, without more, is clearly insufficient to impose liability on those charged with the care of prisoners.”
402 F.3d at 1115 (citation omitted). Equally interesting (but unmentioned by the
plaintiffs) is Cook’s explanation of the elements of “deliberate indifference” and
“foreseeability” in demonstrating a Sheriff’s liability:
Foreseeability, for the purpose of establishing deliberate indifference, requires that the defendant have had “subjective knowledge of a risk of serious harm,” meaning, in a prison suicide case, knowledge of “a strong likelihood rather than a mere possibility that the self-infliction of harm will occur. . . .”
The record in this case is utterly devoid of any evidence that the Sheriff had any such knowledge. As we have explained previously, “[n]o matter how defendants’ actions might be viewed, the law of this circuit makes clear that they cannot be liable under § 1983 for the suicide of a prisoner who never had threatened or attempted suicide and who had never been considered a suicide risk.”
402 F.3d at 1116 (citations omitted).
This discussion of Cook recalls the plaintiffs’ theory, advanced in paragraph
351, that because the defendants “are both aware of the prevalence of mental illness
among incarcerated children . . . [the defendants] have a ‘subjective awareness of the
relevant risk.’” (Doc. 529 at 126, ¶ 351). The plaintiffs’ theory that “knowledge of
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one equals knowledge of all” or “knowledge of a possibility equals knowledge of a
fact” or “knowledge of anything equals knowledge of every similar thing” stands
radically athwart the scope of applicable law, as Cook explains:
[A]s we have explained previously, under our precedent, the defendant must have had “notice of the suicidal tendency of the individual whose rights are at issue in order to be held liable for the suicide of that individual.” Tittle, 10 F.3d at 1539 (emphasis in original). Deliberate indifference, in the jail suicide context, is not a question of the defendant’s indifference to suicidal inmates or suicide indicators generally, but rather it “is a question of whether a defendant was deliberately indifferent to an individual’s mental condition and the likely consequences of that condition.” Id. (emphasis added). For this reason, “[a]bsent knowledge of a detainee’s suicidal tendencies, [our] cases have consistently held that failure to prevent suicide has never been held to constitute deliberate indifference.” Popham, 908 F.2d at 1564. Thus, even if Cook had established the Sheriff’s deliberate indifference toward suicidal inmates in general — and, on this record, precious little evidence points to such a conclusion — this would not suffice to demonstrate the foreseeability of Tessier’s suicide and to hold the Sheriff liable under § 1983.
402 F.3d at 1117.
Paragraph 353 begins a series of paragraphs containing quite specific claims
by the plaintiffs about the components of “deliberate indifference.” The first sentence
of paragraph 353 says that “inadequate psychiatric” care amounts to deliberate
indifference” if the care “deviates substantially from the accepted standard of care.”
The plaintiffs cite Steele v. Shah, 87 F.3d 1266, 1269 (11th Cir. 1996) (citing Greason).
Somewhat different from the plaintiffs’ formulation, Steele says exactly this:
In this circuit, it is established that psychiatric needs can constitute serious medical needs and that the quality of psychiatric care one receives can be so substantial a deviation from accepted standards as to evidence deliberate indifference to those serious psychiatric needs. See Greason v. Kemp, 891 F.2d 829 (11th Cir. 1990). In Greason,
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reviewing the denial of summary judgment on qualified immunity grounds, we held that there exists a “clearly established right to have [one’s] psychotropic medication continued if discontinuation would amount to grossly inadequate psychiatric care.” 87 F.3d at 1269. What Steele actually says is that the psychiatric care administered to an inmate to treat a serious psychiatric need (that is, one that, if untreated or treated inadequately, exposes the inmate to a substantial risk of serious injury) can depart so “grossly” from the standard of care that the departure evidences “deliberate indifference.” The next sentence in the plaintiffs’ paragraph 353 says that a “cursory assessment” of a mental health patient “may also constitute deliberate indifference.” First, “deliberate indifference” is an alleged fact about a defendant, in this case an allegation about the Sheriff and Corizon, that the plaintiffs must prove; “deliberate indifference” is not a fact about medical care. Second, in an Eighth Amendment case, inadequate medical care exposing an inmate (or, in this case, a class of inmates) to a substantial risk of serious harm is a fact about which a defendant might manifest “deliberate indifference” (if proven) but the fact of an episode or a scattering of episodes of sub-standard care is not “deliberate indifference” and alone does not establish “deliberate indifference.” Paragraph 354 echoes the misconceived formula of paragraph 353 and asserts that a failure to provide suicide precautions constitutes “deliberate indifference.” The plaintiffs’ statement is so unjustifiably over-generalized and so sweeping that the statement becomes meaningless. For example, if no person of demonstrated or
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diagnosed suicidal propensity is present, the absence of the plaintiffs’ unspecified suicide “precautions” is not “deliberate indifference.”
In presumed support of the claim for constitutional suicide precautions, the plaintiffs cite Ruiz v. Estelle, 503 F. Supp. 1265 (S.D. Tex. 1980) (a 125-page opinion), aff’d in part and rev’d in part, 679 F.2d 1115 (5th Cir. 1982) (a 69-page opinion), amended in part, vacated in part, and rehearing denied, 688 F.2d 266 (5th Cir. 1982). Describing the mental health care in Texas’s system as “rudimentary at best,” Ruiz finds that Texas attempted no genuine treatment of mentally ill inmates other than to attempt the use heavy medication to control behavior and, if that failed, to transfer the inmate to a mental health unit to medicate more heavily. The Texas system used no screening for mental health, the system employed “virtually no professional staff,” the “visiting” psychiatrists spent less than one day per month at the prison, and the system’s mental health unit was a “warehouse” offering little or no treatment (with about 25% of the inmates isolated more than twenty-three hours each day). Texas employed the equivalent of five, full-time psychiatrists to serve 26,000 inmates, about 17,000 of whom “suffer from mental disorders of some type,” 503 F. Supp. at 1337, and the lack of qualified personnel resulted in “psychiatric records which are poor in quality and haphazardly compiled” with privacy “unnecessarily compromised.” In paragraph 355 of the proposed findings, the plaintiffs report more or less correctly the six components the district judge found necessary for a “minimally adequate mental health treatment program.” 503 F. Supp. at 1339.
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However, unmentioned by the plaintiffs is the Fifth Circuit’s different view of the district court’s role (and, of course, the Prison Litigation Reform Act was not yet enacted). Although not mentioned by the plaintiffs, the Fifth Circuit concluded that the district court’s injunction “administers a massive curative dose when it is not yet demonstrable that a lesser therapeutic measure would not suffice . . . the remedy should begin with what is absolutely necessary.” 679 F.2d at 1145. Precisely what happened to the district court’s prescription for mental health is unclear from these lengthy, confused opinions (perhaps the parties arrived at an agreement), but that the district court’s six-point plan for mental health describes both a constitutional minimum and the only satisfactory constitutional minimum is very far from clear (especially since the best supporting citation available is apparently a partially reversed 1980 district court case in Texas). In all events, the details of a constitutionally compliant program for mental health diagnosis and treatment for inmates in a prison with terms of imprisonment measurable in years or decades is quite different from the details of a constitutionally compliant program for juvenile detainees in Polk County, most of whose detention is measurable in days.
Paragraph 356 begins with the declaration that “delays in treatment alone may constitute deliberate indifference.” Of course, a widespread, persistent, and flagrant pattern of critical delays in medical care that exposed inmates to a substantial risk of serious harm and to which the jailer was deliberately indifferent might constitute a violation of the Eighth Amendment. However, a delay in medical care might exist
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outside the knowledge of the jailer, the jailer might try honestly but without result to remedy the delay, the jailer might accept the wrong recommendation for avoiding the delay, or the inmate’s medical need might be trivial. For these or any number of other reasons, delay might not equal deliberate indifference. The plaintiffs’ simplistic formula is dead wrong — not every delay of treatment is actionable under the Eighth Amendment or the Fourteenth Amendment. Again, the plaintiffs’ statement casually but fundamentally misstates the legal concept of “deliberate indifference,” although the concept is defined, explained, and illustrated repeatedly in cases cited by the plaintiffs.
The plaintiffs in paragraph 356 cite Brown v. Hughes, 894 F.2d 1533 (11th Cir. 1990), for the premise that “delay alone” may constitute “deliberate indifference.” Again, the plaintiffs’ burden of proof to show that the Sheriff or Corizon was “deliberately indifferent” requires more than proof of “delay” because “deliberate indifference,” if proven, is not an attribute of medical care but an attribute of the prison officials, an attribute the proof of which — as the many cases cited demonstrate — requires more than proof of “delay.” Of course, widespread, persistent, and flagrant “delay” can evidence “deliberate indifference,” and “delay” is one form of conduct that a prison official can commit with “deliberate indifference” if the inmate is exposed to a substantial risk of serious harm or gratuitous suffering.
Paragraph 357 includes another over-generalized, sweeping claim that when “children” are “deprived of medication or counseling that eases their suffering,” the
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“children” suffer “unnecessary pain” and the Eighth Amendment and the Fourteenth Amendment are violated. That statement might prove valid in a circumstance depending on the facts, such as the severity of the juvenile’s problem, the persons who knew about the problem and when, the persons who knew and when they knew about the availability of a palliative, the duration of the pain, the severity of the pain, the long-term effect, and the like. The well-established constitutional standard, repeated in the precedents of the Supreme Court and the Eleventh Circuit, prescribes exactly the questions to ask, the measures to apply, and the proof to require from a plaintiff to establish a violation of the Eighth and Fourteenth Amendments.
THE DEFENDANTS’ DISCUSSION OF THE CONSTITUTIONAL STANDARD The Sheriff’s explanation of the applicable constitutional standard is not consolidated in a single presentation but is scattered throughout the Sheriff’s proposed findings of fact and conclusions of law (which are designated as a “posttrial brief”).4 Corizon’s explanation of the law, although stated separately, is entirely compatible with the Sheriff’s. The Sheriff begins by suggesting that the plaintiffs’ entire presentation is “flawed from the outset” because the premise on which the plaintiffs depend is a
4 Also, the Sheriff’s “post-trial brief” employs an elsewhere unknown and thoroughly unhappy device, the intended purpose of which is baffling: a table of contents utterly without the pertinent page numbers. While not completely useless, a table of contents without page numbers equals in utility a bank statement that lists only the day of each deposit or a telephone book that lists only the name of each subscriber.
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“non-existent constitutional basis.” The Sheriff summarizes the error as an attempt to substitute a new, unprecedented standard of “any risk of any harm” for the established constitutional standard of “substantial risk of serious harm.” The Sheriff asserts that the plaintiffs offer a “best practices case” rather than demonstrate that the conditions of juvenile detention under the Sheriff’s administration fall below the constitutional minimum. The Sheriff and Corizon are correct.
The Sheriff’s first citation appearing on page 9 of the proposed findings (Doc. 539 at 9) is Bell v. Wolfish, 441 U.S. 520 (1979), a leading precedent that involves the pretrial detention of juveniles. Bell is an essential and compelling pillar of any informed discussion of the precedent that establishes the applicable constitutional standard. (The plaintiffs’ only mention of Bell in the proposed findings is a “see also” citation in paragraph 304. (Doc. 529 at 110))
Justice Rehnquist begins Bell by mentioning the Supreme Court’s several recent decisions considering “constitutional challenges to prison conditions” and confirms that Bell requires an examination of “the constitutional rights of pre-trial detainees.” 441 U.S. at 523. Although Bell involves federal detainees and not state juvenile detainees, Bell proceeds as a class action challenging the conditions of confinement. The plaintiffs in Bell succeeded in the trial court and in the Second Circuit but, as in Youngberg, the lower courts’ determinations were reversed in the Supreme Court, which found no constitutional authority for lower courts’ “interven[ing] broadly into almost every facet of the institution,” 441 U.S. at 523,
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including the facility’s practices of “double-bunking,” prohibiting the receipt of books
and magazines from a source other than a publisher, prohibiting the receipt of
packages of food or personalty (except one food package at Christmas), searching
inmate living areas at “irregular intervals,” conducting a body cavity search after a
“contact visit,” and the like.
In broadly rejecting the Second Circuit’s “compelling necessity” standard
for justifying a restriction on a detainee’s liberty, Bell explains that whether a
particular condition of confinement impinges liberty sufficiently to offend the
Constitution depends on “whether those conditions amount to punishment of the
detainee,” 441 U.S. at 535, that is, whether the condition is a “punitive measure” or a
“regulatory restraint.” To define that distinction, in turn, Bell explains:
Absent a showing of an expressed intent to punish on the part of detention facility officials, that determination generally will turn on “whether an alternative purpose to which [the restriction] may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned [to it].” Thus, if a particular condition or restriction of pretrial detention is reasonably related to a legitimate governmental objective, it does not, without more, amount to “punishment.” Conversely, if a restriction or condition is not reasonably related to a legitimate goal — if it is arbitrary or purposeless — a court permissibly may infer that the purpose of the governmental action is punishment that may not constitutionally be inflicted upon detainees qua detainees. Courts must be mindful that these inquiries spring from constitutional requirements and that judicial answers to them must reflect that fact rather than a court’s idea of how best to operate a detention facility.
441 U.S. at 538–39 (citations omitted).
Bell quotes approvingly from Justice Frankfurter, who wrote, “The fact that
harm is inflicted by government authority does not make it punishment.” 441 U.S.
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at 539. Bell stipulates that the “legitimate governmental objectives” and “alternative
purposes” justifying a “particular condition or restriction” include insuring the
detainees presence at trial, effectively managing the detention facility, maintaining
order and security, excluding weapons and drugs, and others. 441 U.S. at 540. Bell
speaks, as well, to whose judgment prevails if a question arises about whether
particular restrictions are “reasonably related” to legitimate objectives:
In determining whether restrictions or conditions are reasonably related to the Government’s interest in maintaining security and order and operating the institution in a manageable fashion, courts must heed our warning that “[s]uch considerations are peculiarly within the province and professional expertise of corrections officials, and, in the absence of substantial evidence in the record to indicate that the officials have exaggerated their response to these considerations, courts should ordinarily defer to their expert judgment in such matters.”
441 U.S. at 540 (citation omitted).
Bell elaborates “the teaching” of Supreme Court precedent, 441 U.S. at 548,
that is, elaborates “several general principles” to guide the evaluation of restrictions
on detainees. First, a detainee undeniably retains constitutional protection during
detention. 441 U.S. at 545. Second, despite the detainees’ retention of rights, “the
withdrawal or limitation of many privileges and rights” necessarily accompanies any
term of detention. 441 U.S. at 545–46. Third, the need for “institutional security” is
“central” and “essential”:
[M]aintaining institutional security and preserving internal order and discipline are essential goals that may require limitation or retraction of the retained constitutional rights of both convicted prisoners and pretrial detainees. “[C]entral to all other corrections goals is the institutional consideration of internal security within the corrections facilities themselves.” Prison officials must be free to take appropriate
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action to ensure the safety of inmates and corrections personnel and to prevent escape or unauthorized entry. 441 U.S. at 546–47 (citations omitted). Fourth, mindful that the district court and the
Second Circuit in concert had “trenched too cavalierly into areas that are properly
the concern of [jail] officials,” 441 U.S. at 554, especially in the area of security
interests and “the means required to further those interests,” 441 U.S. at 554, Bell
warns sternly about “this sort of unguided substitution of judicial judgment for that of
the expert prison administrators.” 441 U.S. at 554.
This remark in Bell about “expert prison administrators” evokes Youngberg’s
deference to the judgment of “professionals,” referring in each instance to the same
corrections officials. In reference to the regime of jail administration imposed by the
district court and the circuit court in the name of the Fourteenth Amendment, Bell
concludes:
We do not doubt that the rule devised by the District Court and modified by the Court of Appeals may be a reasonable way of coping with the problems of security, order, and sanitation. It simply is not, however, the only constitutionally permissible approach to these problems. Certainly, the Due Process Clause does not mandate a “lowest common denominator” security standard, whereby a practice permitted at one penal institution must be permitted at all institutions. 441 U.S. at 554.
The Sheriff next cites (Doc. 539 at 12) Bozeman v. Orum, 422 F.3d 1265
(11th Cir. 2005), in which a pre-trial detainee is subdued by officers in his second-
floor cell after flooding his cell with toilet water that caused urine and feces to float
about the area and that caused a waterfall from the second to the first floor; after
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pacing naked in his cell; after “yelling religious phrases,” such as “see the blood of Jesus on me”; after drinking the overflowed toilet water; after vomiting; and after trying to hang himself. 422 F.3d at 1268. Officers arrived and threatened to “kick his ass,” so he covered himself with “grease . . . to make himself slippery.” After a twenty-minute struggle in the cell with four officers, the detainee was moved, limp and motionless, from his cell toward an isolation cell on the first floor, but the detainee was “set . . . on the ground” while the isolation cell was prepared. 422 F.3d at 1270. The officers noticed that the detainee “appeared unconscious.” The officers summoned the nurse, who immediately began resuscitation efforts, but the detainee was dead. The district court granted summary judgment for the Sheriff but denied the officers’ claim of qualified immunity.
Bozeman offers a recent and authoritative statement of the law governing a claim by a detainee of excessive force and a claim by a detainee of deliberate indifference to serious medical needs. Consistent with other controlling precedent, Bozeman notes that whether a plaintiff is a prisoner or a detainee “makes no difference,” 422 F.3d at 1271, because the same constitutional standard applies to each:
Under this standard, “whether or not a prison guard’s application of force is actionable turns on whether that force was applied in a good faith effort to maintain or restore discipline or maliciously or sadistically for the very purpose of causing harm.”
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422 F.3d at 1271 (citations omitted). Bozeman specifically delineates the standard
applicable in the Eleventh Circuit to a claim for deliberate indifference to a serious
medical need:
First, the plaintiff must prove an objectively serious medical need. Second, the plaintiff must prove that the prison official acted with deliberate indifference to that need.
. . . . To satisfy the subjective element of deliberate indifference to Haggard’s serious medical need, Plaintiff must prove three things: “(1) subjective knowledge of a risk of serious harm; (2) disregard of that risk; (3) by conduct that is more than [gross] negligence.” . . .
Demonstration of the level of subjective knowledge necessary to impute to the Officers a sufficiently blameworthy state of mind consists of two steps: the Officers “must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and [ ] must also draw the inference.” . . . Whether the Officers had this level of subjective knowledge . . . “is a question of fact subject to demonstration in the usual ways, including inference from circumstantial evidence, and a fact finder may conclude that a prison official knew of a substantial risk from the very fact that the risk was obvious.”
. . . .
. . . . “The tolerable length of delay in providing medical attention depends on the nature of the medical need and the reason for the delay.”
. . . .
“[A]n official acts with deliberate indifference when he intentionally delays providing an inmate with access to medical treatment, knowing that the inmate has a life-threatening condition or an urgent medical condition that would be exacerbated by delay.”
422 F.3d at 1272–73 (citations omitted).
The Sheriff next (Doc. 539 at 13) cites Hudson v. McMillian, 503 U.S. 1 (1992),
for the premise that the Eighth Amendment’s prohibition against cruel and unusual
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punishment “admits of few absolute limitations” because the amendment draws meaning from society’s “evolving standards of decency.” Of course, the meaning and effect of an ethereal generalization such as that must, in turn, “draw meaning” from the facts and the legal explanation of the decision in which the generalization appears.
In Hudson, after an “argument” a guard withdrew Hudson from his cell and walked him toward an “administrative lockdown area.” According to Hudson, the guard repeatedly “punched” Hudson in the face and stomach while Hudson was restrained by another guard. Hudson received “minor bruises and swelling of his face, mouth, and lip.” The blows “loosened Hudson’s teeth and cracked his partial dental plate,” which became “useless” for months. 503 U.S. at 4. Hudson sued, prevailed, and recovered $100.00 in the district court on his excessive force claim under the Eighth Amendment. Finding any use of force completely unwarranted and therefore in the circumstance constitutionally “excessive” and finding Hudson’s injuries “minor” and not “significant,” the Fifth Circuit reversed. The Supreme Court reversed the Fifth Circuit and addressed the question whether an application of excessive force can result in an Eighth Amendment violation “if the inmate does not suffer serious injury.” 503 U.S. at 4. Hudson expressly holds that:
[W]henever prison officials stand accused of using excessive physical force in violation of the Cruel and Unusual Punishments Clause, the core judicial inquiry is that set out in Whitley: whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm.
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503 U.S. at 7. Hudson prescribes that to discover the purpose for an application of
force and to assess whether the force is excessive requires consideration of “the extent
of injury suffered by the inmate” and, as well:
In determining whether the use of force was wanton and unnecessary, it may also be proper to evaluate the need for application of force, the relationship between that need and the amount of force used, the threat “reasonably perceived by the responsible officials,” and “any efforts made to temper the severity of a forceful response.” The absence of serious injury is therefore relevant to the Eighth Amendment inquiry, but does not end it. 503 U.S. at 7 (citation omitted).
Hudson explains that a successful excessive force claim requires proof of both a
“sufficiently culpable state of mind” and an injury “harmful enough to establish a
constitutional violation.” In other words, an excessive force claim under the Eighth
Amendment, although not requiring a “significant injury,” nonetheless requires an
injury “serious enough” to trigger the Eighth Amendment, which “malicious and
sadistic” force will trigger. Hudson attempts to ensure reasonableness and moderation
in the trial courts by adding that neither “every malevolent touch” nor “every push or
shove” nor every “de minimus use of physical force” triggers the Eighth Amendment
but only that force “repugnant to the conscience of mankind.” 503 U.S. at 9–10.
At page 28 (Doc. 539 at 28), discussing judicial deference to prison officials,
the Sheriff cites Whitley v. Albers, 475 U.S. 312 (1986), mentioned repeatedly in
Hudson. (Justice O’Connor writes for the majority in both Whitley and Hudson.) In
Whitley, a group of drunk and defiant prisoners held a guard hostage, threatened the
guard’s life, and began “breaking furniture and milling about.” 475 U.S. at 315.
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After negotiation failed and after the prisoners severely beat a fellow prisoner, prison
officials resolved to issue shotguns to guards for a “forceful intervention,” which the
officials found “necessary to protect the life of the hostage and the safety of the
inmates who were not rioting.” 475 U.S. at 316. After the rioting prisoners refused a
last request from officials to stand down, the intervention began with a “warning
shot” and orders to the armed guards to “shoot low.” The intervention successfully
freed the hostage, although several rioting prisoners were shot but without loss of life.
The respondent “sustained severe damage to his left leg and mental and emotional
distress.” 475 U.S. at 317. In the respondent’s trial, the district judge directed a
verdict for the prison officials. The Ninth Circuit reversed in part and remanded for a
trial in an opinion summarized in Whitley as follows:
The court held that an Eighth Amendment violation would be established “if a prison official deliberately shot Albers under circumstances where the official, with due allowance for the exigency, knew or should have known that it was unnecessary,” or “if the emergency plan was adopted or carried out with ‘deliberate indifference’ to the right of Albers to be free of cruel [and] unusual punishment.” The Court of Appeals pointed to evidence that the general disturbance in cellblock “A” was subsiding and to respondent’s experts’ testimony that the use of deadly force was excessive under the circumstances and should have been preceded by a verbal warning, and concluded that the jury could have found an Eighth Amendment violation.
475 U.S. at 318 (citations omitted).
The Supreme Court reversed the Ninth Circuit, which had “effectively
collapsed the distinction between mere negligence and wanton conduct” and
observed that these facts presented a triable issue “only [i]f ordinary errors of
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judgment could make out an Eighth Amendment claim.” 475 U.S. at 323. Whitley
states both the governing question and the considerations that resolve the question.
First, the question:
Where a prison security measure is undertaken to resolve a disturbance, such as occurred in this case, that indisputably poses significant risks to the safety of inmates and prison staff, we think the question whether the measure taken inflicted unnecessary and wanton pain and suffering ultimately turns on “whether force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm.” As the District Judge correctly perceived, “such factors as the need for the application of force, the relationship between the need and the amount of force that was used, [and] the extent of injury inflicted,” 481 F.2d, at 1033, are relevant to that ultimate determination.
. . . .
But equally relevant are such factors as the extent of the threat to the safety of staff and inmates, as reasonably perceived by the responsible officials on the basis of the facts known to them, and any efforts made to temper the severity of a forceful response.
475 U.S. at 320–22 (citation omitted).
Whitley also expresses the “special weight” owed to the “discretion of prison
administrators” in deciding matters affecting “a prison’s internal security,” which
includes the “internal order and discipline necessary to maintain institutional
security.” 475 U.S. at 321–22. As Whitley explains, this “wide ranging deference”
extends to both measures in response to a present disruption and measures in
preparation for a prospective disruption:
That deference extends to a prison security measure taken in response to an actual confrontation with riotous inmates, just as it does to prophylactic or preventive measures intended to reduce the incidence of these or any other breaches of prison discipline. It does not insulate from review actions taken in bad faith and for no legitimate purpose,
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but it requires that neither judge nor jury freely substitute their judgment for that of officials who have made a considered choice.
475 U.S. at 322.
Another instructive aspect of Whitley is the treatment of the testimony of the
injured inmate’s experts, one of whom testified that “prison officials gave inadequate
consideration of less forceful means” and that “deadly force” was unnecessary,”
despite the fact of a prison guard held hostage and reports of a dead inmate. 475 U.S.
at 323. Another expert testified that prison officials were “possibly a little hasty” in
deploying force. 475 U.S. at 323. Whitley forcefully iterates that the germane inquiry
is not whether an expert concludes that prison officials “arguably erred” but whether
a “plausible basis” existed for the prison officials’ order to shoot.
In Whitley, the injured inmate claimed that a “verbal warning” was necessary
before the final use of force. Whitley disposes of the argument in an instructive
manner:
As petitioners’ own experts conceded, a verbal warning would have been desirable, in addition to a warning shot, if circumstances permitted it to be given without undue risk. While a jury might conclude that this omission was unreasonable, we think that an inference of wantonness could not properly be drawn. First, some warning was given in the form of the first shot fired by Officer Kennicott. Second, the prison officials could have believed in good faith that such a warning might endanger the success of the security measure because of the risk that it would have allowed one or more inmates to climb the stairs before they could be stopped. The failure to provide for verbal warnings is thus not so insupportable as to be wanton. Accordingly, a jury could not properly find that this omission, coupled with the order to shoot, offended the Eighth Amendment.
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475 U.S. at 324 (citation omitted). In short, Whitley requires malice or wantonness and not negligence or mistaken judgment.
The Sheriff next (Doc. 539 at 30) cites Board of County Commissioners of Bryan County, Oklahoma v. Brown, 520 U.S. 397 (1997); Marsh v. Butler County, Alabama, 268 F.3d 1014 (11th Cir. 2001); Monell v. Department of Social Services, 436 U.S. 658 (1978); and Engelleiter v. Brevard County Sheriff’s Department, 290 F. Supp. 2d 1300 (M.D. Fla. 2003), for the requirement (undisputed — in fact, unmentioned — by the plaintiffs) that a Sheriff is not liable in his official capacity for the wrongs of his subordinates unless the wrongs are consequent upon an official policy or practice of the Sheriff that directly causes an injury.
As did the plaintiffs, the Sheriff cites (Doc. 539 at 31) LaMarca v. Turner, 995 F.2d 1526 (11th Cir. 1993), discussed earlier, in which the Eleventh Circuit finds the Sheriff liable in his official capacity for violation of the Eighth Amendment but in circumstances immeasurably different and worse in quality and quantity than any circumstance in juvenile detention at CCJ. Nonetheless, LaMarca reverses parts of the injunctive relief because the injunction “unnecessarily intrudes on [Glades Correctional Institution’s] operations.” 995 F.2d at 1543. Citing Milliken v. Bradley, 433 U.S. 267 (1977), LaMarca emphasizes that:
While district courts have broad discretion to fashion equitable relief, such relief must target the existing wrong. “[F]ederal-court decrees exceed appropriate limits if they are aimed at eliminating a condition that does not violate the Constitution or does not flow from such a violation . . . .”
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995 F.2d at 1526 (citation omitted). In other words, proof of a constitutional wrong
necessarily precedes the district court’s grant of relief, which is limited to those steps
necessary to achieve constitutional compliance — and nothing less but nothing more.
The Sheriff next (Doc. 539 at 42) cites Craig v. Floyd County, Georgia, 643 F.3d
1306 (11th Cir. 2011), in which Craig, a pre-trial detainee, claimed a violation of the
Fourteenth Amendment based on the failure of the Georgia Correctional Institute
(GCI) to diagnose his condition and for waiting nine days to administer a CT scan
that revealed “air, bleeding, and fractures in his head that required neurological
surgery.” 643 F.3d at 1308. Craig later sued under the Fourteenth Amendment and
alleged GCI’s deliberate indifference to his serious medical needs. The district court
granted a summary judgment for the defendants because, even assuming some
problem with the diagnosis, the evidence — based on a single episode — failed to
create a genuine issue of “whether a policy, practice, or custom of [GCI] had violated
Craig’s constitutional right.” 643 F.3d at 1309. Because GCI had no express policy
or practice requiring a failure to diagnose, Craig relied on proof of a “custom,” which
necessarily failed because Craig lacked proof of a pattern of unconstitutional conduct
by GCI:
“Proof of a single incident of unconstitutional activity is not sufficient to impose liability” against a municipality. “A pattern of similar constitutional violations . . . is ‘ordinarily necessary.’” “A single incident would not be so pervasive as to be a custom,” because a custom must be such “a longstanding and widespread practice [that it] is deemed authorized by the policymaking officials because they must have known about it but failed to stop it.” This requirement of proof “prevents the imposition of liability based upon an isolated incident,” and “‘ensures that a municipality is held liable only for those
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deprivations resulting from the decisions of its duly constituted legislative body or of those officials whose acts may fairly be said to be those of the municipality.’”
643 F.3d at 1310 (citations omitted). Because the record includes no evidence of any
express and unconstitutional policy promulgated and enforced by the Sheriff, the
plaintiffs’ claims under the Fourteenth Amendment necessarily depend on proof of a
prevailing custom, proof of which requires evidence of an established pattern of
unconstitutional deprivation.
The Sheriff next (Doc. 539 at 34) cites Lewis v. Casey, 518 U.S. 343 (1996), in
which a class of inmates alleged — successfully in the district court and the Ninth
Circuit — a deprivation of rights by the Arizona Department of Corrections under
the First, Sixth, and Fourteenth Amendments. The inmates claimed that only
inadequate legal material was available to them in the prison library, an inadequacy
that allegedly deprived them of access to the courts, access required by Bounds v.
Smith, 430 U.S. 817 (1977). Lewis reverses the Ninth Circuit because the inmates
could show no “widespread actual injury” but showed only “isolated instances of
actual injury.” 518 U.S. at 349. Lewis explains the injury requirement in terms of
constitutional standing and the separation of the branches of government:
The requirement that an inmate alleging a violation of Bounds must show actual injury derives ultimately from the doctrine of standing, a constitutional principle that prevents courts of law from undertaking tasks assigned to the political branches. It is the role of courts to provide relief to claimants, in individual or class actions, who have suffered, or will imminently suffer, actual harm; it is not the role of courts, but that of the political branches, to shape the institutions of government in such fashion as to comply with the laws and the Constitution. In the context of the present case: It is for the courts to
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remedy past or imminent official interference with individual inmates’ presentation of claims to the courts; it is for the political branches of the State and Federal Governments to manage prisons in such fashion that official interference with the presentation of claims will not occur.
518 U.S. at 350 (citations omitted). Lewis also emphasizes that an inmate enjoys a
constitutional right to access to the courts and not a right to a law library. A state
might choose to protect access to the courts by implementing alternatives other than
the maintenance of law libraries, which “are not ends in themselves, but only the
means for ensuring ‘a reasonably adequate opportunity’” to assert a constitutional
claim. 518 U.S. at 351. Both in this instance and in others, the Constitution
prescribes no exclusive, obligatory means to achieve compliance with a constitutional
standard.
Lewis remarks that the only two examples of “actual injury” appearing in the
evidence were the inability of illiterate or Spanish-speaking inmates to access the
courts and the impaired capacity of inmates on lockdown to access the courts. With
respect to the latter, Lewis emphasizes the “principle of deference” in Turner v. Safley,
482 U.S. 78 (1987), and concludes:
[The district] court concluded that [Arizona Department of Corrections’] restrictions on lockdown prisoners’ access to law libraries were unjustified. Turner ’s principle of deference has special force with regard to that issue, since the inmates in lockdown include “the most dangerous and violent prisoners in the Arizona prison system,” and other inmates presenting special disciplinary and security concerns. The District Court made much of the fact that lockdown prisoners routinely experience delays in receiving legal materials or legal assistance, some as long as 16 days but so long as they are the product of prison regulations reasonably
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related to legitimate penological interests, such delays are not of constitutional significance, even where they result in actual injury (which, of course, the District Court did not find here). 518 U.S. at 363. The Sheriff next cites Farmer v. Brennan, 511 U.S. 825 (1994), discussed earlier in this order, although the Sheriff mentions Farmer to accent the requirement for a plaintiff inmate to prove, as an essential part of a constitutional claim, that a defendant official was “knowingly and unreasonably disregarding an objectively intolerable risk of harm” and “will continue to do so.” 511 U.S. at 846. The Sheriff responds to the plaintiffs’ legal assertion, based on Section 985.02, Florida Statutes, that a juvenile pre-trial detainee is subject to “rehabilitation.” Of course, the “intent” of Florida’s juvenile system, as a whole, includes rehabilitation for a convicted juvenile, who presumably needs rehabilitation. But, the Sheriff cites Justice Stevens’ dissenting opinion in Houchins v. KQED, Inc., 438 U.S. 1 (1978), which includes the admonition that “[c]ertain penological objectives, i.e., punishment, deterrence, and rehabilitation, which are legitimate in regard to convicted prisoners, are inapplicable to pretrial detainees.” This is inarguably true because a pretrial detainee is presumed innocent of the pending charge; a pretrial detainee within the contemplation of the law has committed no act warranting punishment, threatens nothing that requires deterrence, and suffers from nothing that requires rehabilitation. Although this action is not about the statutes of Florida and the Florida legislature’s intent in an enactment, the statutes of Florida control the reasons for
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which a juvenile is subject to detention. To detain a juvenile, Section 985.02(4)(a), Florida Statutes, requires:
clear and convincing evidence that a child presents a risk of failing to appear or presents a substantial risk of inflicting bodily harm on others as evidenced by recent behavior; presents a history of committing a serious property offense prior to adjudication, disposition, or placement; has acted in direct or indirect contempt of court; or requests protection from imminent bodily harm. Neither the state of Florida nor the Sheriff is empowered to assume command of a detainee’s life and mold the detainee’s beliefs, objectives, and behaviors into those approved by the Sheriff. A juvenile detainee’s parents, guardians, and the like, along with the juvenile, retain the preeminent role in determining the juvenile’s beliefs, objectives, and behaviors. The Sheriff is charged to implement reasonable measures to prevent a juvenile’s exposure during detention to a substantial risk of serious harm. The governing reality with which the Sheriff contends in securing those in detention is that the juveniles in detention are not a random sample of “children” but an unrepresentative group, every one of whom — clear and convincing evidence establishes — qualifies for detention under Section 985.02, that is, presents a “substantial risk of inflicting bodily harm,” has a history of “serious property offenses,” committed a “contempt of court,” or “requested protection from imminent bodily harm.” In short, the court sends to the Sheriff for detention three groups that are a threat and a fourth (and much less frequent) group that is vulnerable. Hence, as the courts uniformly affirm, institutional security is essential both to pacify the aggressive and to insulate the vulnerable. The use of force as
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punishment to the ends of retribution, deterrence, or rehabilitation plays no part in detention. On the other hand, the episodic use of force, if reasonably chosen and reasonably administered, to achieve and maintain institutional security is an integral part of detention.
In discussing the Fourteenth Amendment and conditions of confinement, the Sheriff first discusses Whitley, Farmer, McKinney, Thomas, and Wilson, each discussed earlier in this order. The Sheriff highlights that “obduracy and wantonness,” that the “unnecessary and wanton infliction of pain,” and that deprivation of “basic human needs” offend the Constitution. The Sheriff cites McKinney and Chandler v. Crosby, 379 F.3d 1278 (11th Cir. 2004), to support the requirement that a plaintiff, asserting an unconstitutional condition of confinement, must establish both (1) an “objectively unreasonable risk of serious damage to . . . health or safety” and (2) the Sheriff’s subjective “deliberate indifference” to the “unnecessary and wanton infliction of pain.”
Chandler is a class action by inmates on Florida’s “death row” in Raiford. The inmates alleged that temperatures in the “death row” cells in the summer climbed sufficiently to cause their confinement to violate the Eighth Amendment. The inmates’ cells lacked air conditioning or circulating fans. Fresh air was pulled through two windows across the hall from each cell by “exhaust fans located in the back wall of each cell.” As summarized in Chandler:
Each prisoner is confined to his own individual cell. Generally speaking, the inmates may only leave their cells for the following
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reasons: (1) outdoor recreation, twice per week, for two hours each time; (2) showers, three times per week; (3) attorney and media visits; (4) personal visits; (5) use of the prison library; and (6) medical and mental health appointments. The visiting areas, prison library, and medical and mental health offices are air conditioned. 379 F.3d at 1284. Summer cell temperatures ranged from eighty degrees at night to eighty-six degrees during the day (“a relatively constant temperature”). After surveying both “heat” cases and “cold” cases, Chandler concludes (1) that heat and cold are among the prison conditions to which the Eighth Amendment applies, (2) that the “severity and duration” of a condition are among the factors pertinent to an Eighth Amendment assessment, and (3) that “a prisoner’s mere discomfort, without more, does not offend the Eighth Amendment.” Invoking the leading authorities, including Farmer, McKinney, and Wilson, Judge Tjoflat in Chandler iterates the familiar elements of proof required in a constitutional challenge to conditions of confinement, including the “objective component,” which prescribes that the challenged condition must be “extreme,” that is, “sufficiently serious to violate the Eighth Amendment.” 379 F.3d at 1289. Chandler concludes that the Eighth Amendment “guarantees that prisoners will not be ‘deprive[d] . . . of the minimal civilized measure of life’s necessities.’” 379 F.3d at 1279. The Sheriff also cites McDowell v. Brown, 392 F.3d 1283 (11th Cir. 2004), in which McDowell, a detainee, reported lower back pain about two weeks after arrest. The jail’s nurse sent McDowell to the hospital for an examination, which occurred, and McDowell returned to jail the same day. The next day McDowell worsened and
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the nurse again directed the staff to transport him to the hospital. However, another inmate was injured seriously and the staff transported the other inmate, instead of McDowell, to the hospital. Later, the staff completed several “mental health transports,” instead of transporting McDowell. At about 9:00 a.m., McDowell complained “that he had no feeling in his legs” and a nurse classified him as “emergent.” 392 F.3d at 1287. McDowell arrived at the hospital at 12:20 p.m. and entered the operating room about 10:20 p.m. — more than twenty-four hours after first seeing the nurse — for correction of a spinal epidural abscess. McDowell “remains an incomplete paraplegic” who “needs assistance to walk.” 392 F.3d at 1287 n.2 and accompanying text.
McDowell asserted against the county a Section 1983 claim under the Eighth Amendment. McDowell emphasizes that in a Section 1983 action against the county, the law requires a plaintiff to show a “persistent and widespread practice” that is “so settled and permanent that it takes on the force of law,” a requirement that “prevents the imposition of liability based upon an isolated incident” or “random acts.” 392 F.3d at 1290. Finding an absence of evidence of a “‘persistent’ or ‘widespread’ policy of understaffing the Jail so as to delay the transfer of inmates” to the hospital, McDowell finds for the county. An important facet of McDowell is that to prove that a policy is maintained with the “requisite degree of culpability . . . with deliberate indifference to its known or obvious consequences” a plaintiff must prove
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more than, for example, “a generalized policy of understaffing” and must prove “a
‘deliberate intent’ to inadequately staff.” 392 F.3d at 1291.
The Sheriff cites McDowell for a principle of “deliberate indifference” that is a
characteristic requirement for a claim, such as the plaintiffs’ claims in this action. To
establish liability in a governmental policy maker, such as the Sheriff, a plaintiff must
show that a constitutional violation is a “highly predictable consequence” of a
particular policy and not just an event that is traceable in part to the policy when
reviewed in retrospect. In other words, a policy-maker’s “deliberate indifference”
cannot occur unless a particular, seriously injurious result was the “highly predictable
consequence” of a policy.
The delay in treatment for McDowell resulted from the unlikely convergence
of exigent demands on prison resources rather than from a purposeful plan to deprive
the facility of personnel sufficient to accomplish foreseeable requirements. As
McDowell concludes:
In the instant case, the record is barren of any evidence of implementation of an intentionally malevolent or impermissible policy by the Board so as to authorize a cause of action against Dekalb County under 42 U.S.C. § 1983. The fact that the Board’s budget practices resulted in understaffing does not amount to a purposeful disregard which would violate any citizen’s constitutional rights. McDowell “may not infer a policy merely because harm resulted from some interaction with a governmental entity.” 392 F.3d 1293.
On the requirements of a claim for excessive force, the Sheriff begins with
Cockrell v. Sparks, 510 F.3d 1307, 1311 (11th Cir. 2007), which predictably conforms
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to Whitley and Bozeman in identifying excessive force as a use of force that “is so
egregious that it shocks the conscience” and that occurs when force is used
“maliciously and sadistically for the very purpose of causing harm.” 510 F.3d
at 1311. As Cockrell states:
Under this standard, we look at “the need for the application of force; the relationship between the need and the amount of force that was used; and the extent of the injury inflicted upon the prisoner.” Additionally, we consider “the extent of the threat to the safety of staff and inmates, as reasonably perceived by the responsible officials on the basis of the facts known to them, and any efforts made to temper the severity of a forceful response.” Not only that, but we must also give a “wide range of deference to prison officials acting to preserve discipline and security,” including when considering “[d]ecisions made at the scene of a disturbance.”
510 F.3d at 1311 (citations omitted).
In Cockrell, the prison guard responded to a drunk inmate’s shouting, banging
on the cell door, and demanding release. The guard “opened Cockrell’s door, told
him to ‘shut the hell up’ and gave Cockrell an open-handed shove. Cockrell fell,
broke his hip and wrist, and lacerated his ear.” 510 F.3d at 1310. Finding that the
severity of the injury was not “reasonably anticipated,” Cockrell affirms the summary
judgment for the guard and concludes:
In both Fourteenth and Eighth Amendment excessive force claims, whether the use of force violates an inmate’s constitutional rights “ultimately turns on ‘whether force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm.’” If force is used “maliciously and sadistically for the very purpose of causing harm,” then it necessarily shocks the conscience. If not, then it does not.
510 F.3d at 1311 (citations omitted). Cockrell affirms that a guard “may use force
when necessary to restore order and need not wait until disturbances reach dangerous
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proportions before responding.” 510 F.3d at 1311. Cockrell finds that the openhanded push was “not disproportionate to the need” and that an open-handed push’s causing broken bones was not foreseeable. Finally, Cockrell concludes with a sound, common sense, contextual observation:
Finally, the fact that King and Ballew immediately summoned medical assistance for Cockrell, “temper[ed] the severity of [the] forceful response” and makes it less likely that either of them was acting sadistically instead of in good faith. 510 F.3d at 1312. The Sheriff next turns to the plaintiffs’ claim that the Sheriff’s policies create a general level of violence “so high” that the policies violate the Fourteenth Amendment. The Sheriff notes that to establish a Fourteenth Amendment violation LaMarca requires proof of an “unjustified, constant, and unreasonable exposure to violence.” The Sheriff cites Gullate v. Potts, 654 F.2d 1007 (5th Cir. 1981), a well-known “snitch” case, in which a prisoner, who identified for prosecutors the participants in a “mass homosexual rape of his cellmate,” was transferred for his safety to a minimum security facility. However, he was returned later to a maximum security facility without consideration for his safety, and he was murdered the first day. Gullate reverses and remands the district court’s dismissal of the action, but a procedural problem based on the district judge’s “correcting” — without an evidentiary hearing — the magistrate judge’s fact finding accounts in part for the reversal. Also, both judges failed entirely to consider the subjective component of the
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qualified immunity inquiry. Finally, although certain Fifth Circuit precedent is binding in the Eleventh Circuit, the more recent Carter v. Galloway, 352 F.3d 1346 (11th Cir. 2003), notes that prison officials’ use of an inmate as a “snitch” creates both an increased explicit awareness and a specially heightened obligation for protection from the resulting risk. 352 F.3d at 1350 n.9. Otherwise, knowledge of a generalized, non-specific risk is insufficient to create Eighth Amendment liability, a point Carter vividly illustrates.
In Carter the inmate was placed in administrative segregation because of participation in an investigation of computer misuse. Carter was a medium-security inmate. Carter’s cellmate in segregation was known to officials as a “problem inmate” designated for maximum security. The cellmate informed Carter that he planned to fake a hanging to provoke his transfer to a medical facility and that he planned for Carter to “help” in some unstated manner with the fake hanging, which Carter took as a threat. Carter reported this threat and reported that his cellmate acted “crazy” and “paced the cell like ‘a caged animal.’” 352 F.3d at 1348. Although Carter sought a transfer, the officials refused the transfer until completion of the computer investigation. Carter’s cellmate later stabbed Carter in the stomach with a “shank.” 352 F.3d at 1348.
The district court granted the officials a summary judgment against Carter’s claim under the Eighth Amendment, and the Eleventh Circuit affirmed after
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considering the required specificity of the threat of serious harm that is necessary to
trigger Eighth Amendment liability.
Even assuming the existence of a serious risk of harm and legal causation, the prison official must be aware of specific facts from which an inference could be drawn that a substantial risk of serious harm exists — and the prison official must also “draw that inference.” . . .
. . . .
Defendants arguably should have placed Plaintiff elsewhere but “merely negligent failure to protect an inmate from attack does not justify liability under section 1983. . . .” Defendants only possessed an awareness of Inmate Barnes’s propensity for being a problematic inmate; to find Defendants sufficiently culpable would unduly reduce awareness to a more objective standard, rather than the required subjective standard set by the Supreme Court. Such a generalized awareness of risk in these circumstances does not satisfy the subjective awareness requirement.
352 F.3d at 1349–50 (citation omitted).5
At page 91 of the proposed findings (Doc. 539), the Sheriff discusses the
requirements of a claim for deliberate indifference to the serious mental health care
needs of a juvenile detainee. The Sheriff first cites the admonition in Estelle that to
trigger the Eighth Amendment a detainee must establish “acts or omissions
sufficiently harmful to evidence deliberate indifference to serious medical needs.”
5 But see Rodriguez v. Secretary for Dep’t. of Corr., 508 F.3d 611, 621 (11th Cir. 2007) (“Here unlike in Carter [the inmate] told [a prison official] the following specific information: (1) that he was a former Latin King who decided to renounce his membership; (2) that members of the Latin Kings had threatened to kill him when he returned to the compound in retaliation for his renunciation; (3) that the compound . . . was heavily populated with Latin Kings; and (4) that, in order to prevent an attempt on his life, he needed either to be transferred to another institution or to be placed in protective custody. These are the things that the inmate in Carter did not do.”)
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Next the Sheriff cites Evans v. St. Lucie County Jail, 448 Fed. Appx. 971
(2011), in which Evans tripped over mattresses placed on the floor of his cell to
accommodate an over-crowded jail. Evans hurt his back in the fall. Evans claimed
an unconstitutional delay in treatment and “indifferent and uncaring” treatment.
448 Fed. Appx. at 975. Evans claimed that three requests for a doctor were ignored
and that his examination was both delayed and perfunctory. Evans finds that the
allegations fail to identify “an objectively serious medical need, one that, if left
unattended, poses a substantial risk of serious harm,” 448 Fed. Appx. at 976, and
concludes:
Separately, we also note that the complaint does not allege sufficient facts to show that the level of care exercised by those were in charge of processing medical requests, and by the doctor who saw Evans, was worse than “accidental inadequacy, negligence . . . or even medical malpractice actionable under state law.” Assuming, as we must, that Evans’s allegations are true, we readily acknowledge that the delay in arranging a medical visit and the doctor’s conduct during that visit leave much to be desired. This is not enough, however, to support a claim of unconstitutional conduct.
448 Fed. Appx. at 976 (citations omitted).
Finally, the Sheriff cites a district court opinion that, in turn, cites the
frequently-cited Taylor v. Adams, 221 F.3d 1254, 1258 (11th Cir. 2000), in which
a shoplifter was chased by employees for several blocks, apprehended, and held
to the ground until police arrived. The shoplifter denied the need for medical
assistance, and the police transported him to the jail in a paddy wagon. When
police arrived at the jail and opened the paddy wagon, the shoplifter was unconscious
and unresponsive after attempts to revive him. Immediately upon arrival, a nurse
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ordered him transferred to the hospital, but he died en route. The deceased’s estate
sued everyone involved, including the sheriff. Although the issue arises in the
context of qualified immunity, Taylor finds the applicable Eighth Amendment law
“clearly established” and finds no claim under the Fourteenth Amendment. After
restating:
In the context applicable here, denial of medical care, each of these minima has been more specifically described as encompassing two subsidiary requirements. To show an objectively serious deprivation, it is necessary to demonstrate, first, an objectively “serious medical need [ ],” one that, if left unattended, “pos[es] a substantial risk of serious harm,” and second, that the response made by public officials to that need was poor enough to constitute “an unnecessary and wanton infliction of pain,” and not merely accidental inadequacy, “negligen[ce] in diagnosi[s] or treat[ment],” or even “[m]edical malpractice” actionable under state law, (internal quotation marks omitted). Similarly, to show the required subjective intent to punish, a plaintiff must demonstrate that the public official acted with an attitude of “deliberate indifference,” which is in turn defined as requiring two separate things: “aware[ness] of facts from which the inference could be drawn that a substantial risk of serious harm exists [ ] and . . . draw[ing of] the inference.” Ultimately, there are thus four requirements: an objectively serious need, an objectively insufficient response to that need, subjective awareness of facts signaling the need, and an actual inference of required action from those facts.
221 F.3d at 1258.
Recognizing the familiarity of the governing legal principles and undertaking
to further illustrate facts relevant to a claim of unconstitutional police conduct, Taylor
cites Hill v. DeKalb County Regional Youth Detention Center, 40 F.3d 1176 (11th Cir.
1994), in which a sixteen-year-old detainee complained of stomach pain. The
detainee, Hill, was seen by a nurse, reported that he was urinating blood, examined
at a hospital after a delay of several hours, returned to detention, ate a meal but
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vomited blood, was medicated and sent to bed, was sexually assaulted by members
of the staff, again reported bleeding, was returned to the hospital, and was finally
diagnosed and treated.
The detailed opinion in Hill carefully identifies and illustrates categories of
claims of delay or denial of medical attention to those in custody. Hill’s first category
comprises cases of “medical needs that are obvious even to a layperson because they
involve life-threatening conditions or situations where it is apparent that delay would
detrimentally exacerbate the medical problem,” 40 F.3d at 1187, a category
exemplified in Hill by these examples:
See, e.g., Brown, 894 F.2d at 1538 (six-hour delay in medical treatment for “a serious and painful broken foot was sufficient to state a constitutional claim”); Thomas v. Town of Davie, 847 F.2d 771, 772 (11th Cir. 1988) (automobile accident where the individual was “‘in obvious need of immediate medical attention,’” because of his “‘medically emergent and deteriorating . . . condition’”); H.C. ex rel. Hewett v. Jarrard, 786 F.2d 1080, 1086–87 (11th Cir. 1986) (three-day delay in medical treatment for shoulder injury was “‘reckless disregard’” for detainee’s serious medical need and was a constitutional violation); Ancata v. Prison Health Servs., Inc., 769 F.2d 700, 702 (11th Cir. 1985) (valid constitutional claim where inmate died of leukemia four months after complaining of “serious” medical problems, including swollen ankles, inability to sleep, chills, hyperventilation, severe pain in back and right leg, and double vision, and county jail defendants made no arrangements for a doctor’s examination until compelled to do so by two court orders); Aldridge, 753 F.2d at 972 (one-and-a-half-inch cut over detainee’s eye bleeding for two and a half hours before sutured at a hospital); Hughes v. Noble, 295 F.2d 495, 496 (5th Cir. 1961) (per curiam) (following automobile accident, individual jailed for thirteen hours with broken neck and forced to endure “severe pain” despite “repeated requests for medical attention”); see also Cooper v. Dyke, 814 F.2d 941, 945–46 (4th Cir. 1987) (detainee’s gunshot wound required immediate medical attention and delay in providing it caused shock and extensive internal bleeding).
40 F.3d at 1188 n.21.
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Hill next identifies another category of claims of delayed or denied medical
care, specifically, those “superficial, non-serious physical conditions” for which a
“delay or even denial” of treatment will not violate the Eighth Amendment. Hill
illustrates this category, also:
See, e.g., Shabazz v. Barnauskas, 790 F.2d 1536, 1538 (11th Cir. 1986) (per curiam) (state inmate’s “‘pseudofolliculitis’ or ‘shaving bumps,’” even if shaving required by prison officials when physician ordered otherwise, “does not rise to the level of the cruel and unusual punishment forbidden by the Eighth Amendment”), cert. denied, 479 U.S. 1011, 107 S. Ct. 655, 93 L.Ed.2d 709 (1986); Dickson v. Colman, 569 F.2d 1310, 1311 (5th Cir. 1986) (per curiam) (county inmate’s high blood pressure presented “‘no true danger’ or ‘serious threat’ to his health,” and he also had full range of motion in his shoulder despite continuing pain from a three-year-old injury; further, he obtained a medical examination the day after he requested it), cert. denied, 439 U.S. 897, 99 S. Ct. 259, 58 L.Ed.2d 244 (1978); see also Wesson v. Oglesby, 910 F.2d 278, 284 (5th Cir. 1990) (state prisoner’s swollen, bleeding wrists from handcuffs that were too tight “do not constitute such a ‘serious medical need’ that any minor delay caused by [prison officials] in delivering [inmate] to the care of medical personnel could be construed as ‘deliberate indifference’”); Martin v. Gentile, 849 F.2d 863, 871 (4th Cir. 1988) (while sliver of glass in detainee’s palm “was no doubt uncomfortable,” it nevertheless “was not a serious injury” and fourteen-hour delay in medical treatment “did not violate his constitutional rights” because cuts and bruises were “minor” and “did not require either stitches or painkiller”).
40 F.3d at 1188 n.22.
Also, Hill illustrates that the “seriousness of an inmate’s medical needs”
includes consideration of the “effect of delay” and that a serious medical need
includes a circumstance in which delay causes “a life-long handicap or permanent
loss,” a conclusion illustrated by these examples:
See, e.g., Ancata, 769 F.2d at 702 (death); Matzker v. Herr, 748 F.2d 1142, 1147–48 (7th Cir. 1984) (following a prison fight, inmate’s denial of medical treatment for eye injury and three broken teeth
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for three months was an Eighth Amendment violation); Archer v. Dutcher, 733 F.2d 14, 16 (2d Cir. 1984) (alleged intentional delay in emergency medical care for pregnant inmate who miscarried); Ramos, 639 F.2d at 576 (delay in providing state prisoner’s oral surgery caused “continued and unnecessary pain and loss of teeth”); see also Westlake v. Lucas, 537 F.2d 857, 860 (6th Cir. 1976) (“[A] prisoner states a proper cause of action when he alleges that prison authorities have denied reasonable requests for medical treatment in the face of an obvious need for such attention where the inmate is thereby exposed to undue suffering or the threat of tangible residual injury.”).
40 F.3d at 1188 n.23.
Hill illustrates also that a party who claims a violation of the Eighth
Amendment based on denial or delay in medical treatment “must place verifying
medical evidence in the record to establish the detrimental effect of delay in medical
treatment to succeed.” Again, Hill offers fortifying illustrations of the principle
applied:
Compare Czajka v. Caspari, 995 F.2d 870, 872 (8th Cir. 1993) (per curiam) (no evidence that delay in inmate’s orthopedic surgery “‘so deviated from professional standards that it amounted to deliberate indifference’” (citation omitted)); Ervin v. Busby, 992 F.2d 147, 150–51 (8th Cir. 1993) (per curiam) (although inmate was deprived of prescription anti-depressant medication for approximately a month, during which time he incited a riot, doctor testified that suddenly stopping medication should not have caused undue agitation; prison officials’ negligence in not refilling prescription was not deliberate indifference), cert. denied, 510 U.S. 879, 114 S. Ct. 220, 126 L.Ed.2d 176 (1993); Gaudreault, 923 F.2d at 208 (although hospital records showed that arrestee displayed multiple bruises to the forehead, left and right orbits of his eyes, nasal area, left ribs, right flank and left shoulder, and was suffering from abrasions to the cornea and upper back, consistent with alleged assault by police officer, there was “nothing in the record to suggest” that a ten-hour delay in medical treatment exacerbated these injuries “in the slightest”); Martin, 849 F.2d at 871 (police officers did not violate arrestee’s constitutional rights by fourteen-hour delay in obtaining medical treatment for cut under his eye that had stopped bleeding and removal of quarter-inch piece of glass embedded in his palm because there was “no suggestion that the delay in taking him to the hospital exacerbated his injuries in
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any way”) with Wellman, 715 F.2d at 273–74 (medical expert testified that five hours delay between time inmate went into cardiovascular shock and the time he was taken to the hospital caused his death). 40 F.3d at 1188 n.24. The record in this action wholly lacks the “verifying medical evidence” required by Hill. At page 102 of the proposed findings, the Sheriff discusses the plaintiffs’ claim that placement of a juvenile detainee in isolation requires a due process hearing. The Sheriff first cites Rodgers v. Singletary, 142 F.3d 1252, 1253 (11th Cir. 1998), which affirms the district court’s summary judgment finding that sixty days in “administrative confinement” for a disciplinary reason failed to deprive the inmate of a “protected liberty interest” and, accordingly, failed to trigger the right to a due process hearing. At the heart of Rodgers and the more recent precedent cited in Rodgers’s decisive footnote 1 is Sandin v. Conner, 515 U.S. 486 (1995), in which an inmate, when moving within a maximum security prison from a cell to a program area, was subject to a “strip search,” including a rectal “inspection.” The inmate subjected the guard to “angry and foul language” and drew a disciplinary citation for “high misconduct” for “physical interference” with the officer and for “low misconduct” for foul language and harassment. At the disciplinary hearing, the inmate was refused the opportunity to call staff witnesses because the staff was needed elsewhere. Found guilty, the inmate served thirty days in “disciplinary segregation.” Later, a review board found the inmate “not guilty” of the “high misconduct” that drew the
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thirty-days in segregation. The inmate sued but the district court granted summary
judgment for the defense. Conner v. Sakai, 15 F.3d 1463 (9th Cir. 1993), reverses
and holds that the inmate enjoyed a protected “liberty interest” in not serving
“disciplinary segregation” without adequate protection of his due process rights,
including the right to call witnesses.
Sandin reverses the Ninth Circuit. Sandin discusses several earlier Supreme
Court decisions and notes the difficulty often encountered in a prison case:
In a series of cases since Hewitt[ v. Helms, 459 U.S. 460 (1983)], the Court has wrestled with the language of intricate, often rather routine prison guidelines to determine whether mandatory language and substantive predicates created an enforceable expectation that the State would produce a particular outcome with respect to the prisoner’s conditions of confinement.
515 U.S. at 480–81. Sandin finds that this laborious process, arising from the earlier
cases, unwholesomely “creates disincentives” to the codification of state prison
practices and licenses intrusion by the federal courts into the “day-to-day
management of prisons often squandering judicial resources with little offsetting
benefit to anyone.” 515 U.S. at 482. The Supreme Court notes some earlier
unfortunate and unrewarding intrusions by the federal judiciary into the day-to-day
management of prisons; resolves, except in a narrowly constrained realm, to refrain
from intruding on prison officials’ necessary management flexibility; explains the
problem; and provides examples:
Such flexibility is especially warranted in the fine-tuning of the ordinary incidents of prison life, a common subject of prisoner claims since Hewitt. See, e.g., Klos v. Haskell, 48 F.3d 81, 82 (CA2 1995) (claiming liberty interest in right to participate in “shock program”— a
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type of boot camp for inmates); Segal v. Biller, No. 94–35448, 1994 WL 594705, 1994 U.S.App. LEXIS 30628 (CA9 Oct. 31, 1994) (unpublished) (claiming liberty interest in a waiver of the travel limit imposed on prison furloughs); Burgin v. Nix, 899 F.2d 733, 735 (CA8 1990) (claiming liberty interest in receiving a tray lunch rather than a sack lunch); Spruytte v. Walters, 753 F.2d 498, 506–508 (CA6 1985) (finding liberty interest in receiving a paperback dictionary due to a rule that states a prisoner “‘may receive any book . . . which does not present a threat to the order or security of the institution’”) (citation omitted); Lyon v. Farrier, 727 F.2d 766, 768–769 (CA8 1984) (claiming liberty interest in freedom from transfer to a smaller cell without electrical outlets for televisions and liberty interest in a prison job); United States v. Michigan, 680 F. Supp. 270, 277 (WD Mich.1988) (finding liberty interest in not being placed on food loaf diet).
515 U.S. at 483.
Announcing the “abandonment of Hewitt’s methodology,” 515 U.S. at 483
n.5, Sandin holds that the due process clause grants to an inmate protectible interests
in freedom from a restraint that, while not in excess of the imposed sentence,
“imposes atypical and significant hardship on an inmate in relation to the ordinary
incidents of prison life.” 515 U.S. at 484.
Of course, Sandin concerns prisoners, and the plaintiffs in the present
action are juvenile detainees. Nonetheless, United States v. Salerno, 481 U.S. 739
(1987), finds that the regime of pre-trial detention codified in the Bail Reform Act
of 1984 “is regulatory in nature and does not constitute punishment before trial in
violation of the Due Process Clause.” 481 U.S. at 748. Salerno holds that “the
punitive/regulatory distinction turns on ‘whether an alternative purpose to which
[the restriction] may rationally be connected is assignable for it and whether it
appears excessive in relation to the alternative purpose assigned.’” 481 U.S. at 747.
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Quite obviously, this reasoning directly applies to Florida’s system of detention. The management of a detention facility and the preservation of safety and security at the facility present a compelling “alternative purpose” for regulatory measures, including temporary suspension of a privilege or the imposition of administrative confinement, however denominated, without implicating the Due Process Clause and without requiring an adversary hearing before every enforcement of the rules.
FINDING OF FACT On October 1, 2011, the Sheriff assumed new statutory responsibility for juvenile detainees and transferred them from the facility operated by the Department of Juvenile Justice (DJJ) to the Juvenile Detention Facility, a self-contained, newly refurbished section of CCJ. The first group of juveniles moved were the “preadjudicated juveniles,” charged as juveniles and ordered into detention by a state court judge. The “direct-filed juveniles,” charged criminally as adults, moved on September 1, 2011, from South County Jail to the Juvenile Detention Facility. Since October 2011, the pre-adjudicated juveniles and the direct-file juveniles have lived at CCJ but in separate dorms. The juveniles are separated — out of “sight and sound” — from the adult inmates, who are housed in a separate building across a large field at the adjoining adult campus of CCJ. In general, the plaintiffs failed to prove that the Sheriff’s policies or practices violate the Fourteenth Amendment, the gravamen of each count of the complaint. At most, the plaintiffs show only that two persons, each of whom qualifies to testify
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as a Rule 702 “expert,” disfavor some of the Sheriff’s past or present managerial policies and practices and advocate the adoption of other policies and practices that these “experts” feel are superior for one reason or another (although the evidence does not demonstrate that superiority).
A constitutional inquiry into the Sheriff’s management of CCJ must focus on whether his “particular system violates any prohibition of the Constitution” — not on whether a consultant, an “expert,” an academic, or another advocate harbors a vision of a better way to manage juvenile detention. Bell v. Wolfish, 441 U.S. 520, 562 (1979). Because the “problems that arise in the day-to-day operation of a corrections facility are not susceptible of easy solutions,” the Sheriff is “accorded wide-ranging deference in the adoption and execution of policies and practices that in [his] judgment are needed to preserve internal order and discipline and to maintain institutional security.” 441 U.S. at 547.
Detention for pre-adjudicated juveniles is almost always brief — an average in the range of ten to fourteen days. (Allen, XII 20:3–21:8)6 Glindmeyer’s and McRae’s estimate of an overall juvenile average length-of-stay was fourteen to eighteen days. (VIII 77:1–12, XVIII 192:22–193:5) A term of detention of more than twenty-one days requires a hearing before a Florida state judge, who is authorized to extend detention for “good cause” to a maximum of sixty-three days. Fla. Stat. § 985.26(2); (XVII 25:11–26:10) A direct-file juvenile is housed at CCJ until
6 Citations to trial transcripts will feature the volume number followed by the page and line numbers, preceded by the witness’s name, if necessary for clarity.
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adjudication or until eighteen, upon the occurrence of which Florida law requires a transfer to adult housing. In all events, the plaintiffs’ calculation that the average length-of-stay in detention for a juvenile is a hundred days is erroneous and decidedly tendentious for several reasons, including that the plaintiffs’ numbers combine the average stay for pre-adjudicated juveniles and direct-filed juveniles both before and after adjudication. (XVII 27:17–28:8, 153:4–154:23)
CCJ is governed by the Florida Model Jail Standards (FMJS). Chapter 20 of the FMJS was added after the enactment of Section 985.688(11), Florida Statutes, to apply specifically to pre-adjudicated juveniles housed in juvenile facilities, including CCJ. Chapter 20 contains requirements regarding pre-inspections and annual inspections, use of force, classification, suicide prevention, case-record management, behavior management, activities and programming, housing, transportation, and medical care. The FMJS governs sheriffs and counties and expresses the legislature’s intent to distinguish DJJ’s program from a countyadministered program under Section 985.688(11). The FMJS acquires the effective, if not the express, force of law.
Section 20.02(a) of the FMJS permits the development and application to juveniles of a use of force continuum that complies with the Florida Department of Law Enforcement’s use of force continuum. Sections 20.02(j) and (k) of the FMJS authorize certified correctional officers trained in the use of pepper spray to use
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pepper spray in juvenile detention facilities when necessary and when unlikely to cause injuries to the staff or the juvenile.
The plaintiffs’ claim that CCJ, owing to location and origin, is managed as an adult facility. However, the evidence establishes that CCJ is “not run as an adult model” but rather “with a juvenile focus or juvenile-specific focus.” (XXII 31:12–14) The plaintiffs also attempt to prove, contrary to the predominant and clearly convincing evidence, that juveniles are left “unsupervised” and observed only remotely through cameras, that deputies interact with the juveniles only to physically abuse them, that the deputies do “nothing” to prevent the “inevitable conflict” between juveniles, that “jail-house justice” rules apply, and that punishment is the “default.” The evidence soundly refutes each of the plaintiffs’ claims, notwithstanding several episodes to the contrary. Consistent with the Sheriff’s constitutional mandate to maintain security, safety, and control (XVII 134:20–135:16), discipline of juveniles occurs only after violation of a facility rule or after disobedience of a detention deputy’s lawful order. Discipline in this circumstance is not punishment in the constitutional sense, Bell, 441 U.S. at 537, but is discipline on the “regulation” side of the “punitive/regulatory” dichotomy in Salerno and later cases.
Tension episodically occurs between juveniles and authority figures in general, whether teachers, parents, or other adults, wherever situated. In a detention setting such as CCJ, tension becomes episodically heightened. Some juveniles at every
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detention facility (and every other station in life), including at CCJ, have trouble following, or choose to defy, the institutional rules. However, the testimony in this case establishes that the deputies and supervisors maintain the overall respect and confidence of most juveniles, and the evidence demonstrates that the detention staff overall interacts confidently and evenly with the juveniles — with the exception of the occasional and inevitable skirmish.
Although she is the commander of the entire jail, Captain Marcum spends the majority of her time with juveniles, visiting juvenile housing, speaking to the detainees, and advising and supervising the deputies. (IV 107:14–108:24) Captain Marcum has observed “a lot of positive interaction” between the juveniles and the deputies, many of whom are “coaches, fathers, [or] former teachers”; who have “worked in the juvenile field for a long time”; and who admirably “coach and mentor” the juveniles during the typical day. (IV 109:14–20) For example, Sergeant Mitchell, who supervises the detention deputies who work directly with the juveniles and who has an extensive background working with youth (XV 100:9–101:18), interacts with the four on-duty deputies “constantly,” “loves” being on the floor with the juveniles, and spends about eight hours of a twelve-hour shift on the floor. (XV 102:24–103:14) Part of Sergeant Mitchell’s duty as a supervisor is the “care, custody, and control of all who [are] there.” (XV 102:17–18) Sergeant Mitchell testified to the importance of the deputies’ knowing the juveniles, knowing whether the juveniles are conducting themselves properly, and knowing whether anything is
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“going on.” (XV 103:15–25) Sergeant Mitchell also testified that some of the younger juveniles viewed one of the nurses as a maternal figure. (XV 118:4–119:14) Similarly, Deputy Gay testified that he counseled juveniles about their actions “every day.” (XII 118:18–21) D.M. testified that Deputies Terry Brown and Reed spoke to the detainees “like men.” (X 32:4–10)
The Sheriff’s expert, Penn, observed on a tour of CCJ that the deputies’ interactions with the juveniles were very professional. (XXII 25:22–26:24) When one of them noticed juveniles gambling, the deputy handled the violation professionally and in a “light” manner. (XXII 25:22–26:24) While Captain Marcum showed him the facility, Penn observed her positive interactions with the juveniles. (XXII 21:2–24:13)
When B.G., who was detained at CCJ for over a year as a direct-file, was asked by the plaintiffs’ counsel on direct examination what was “not good” about the conditions at CCJ, he testified, “We had a little bit of rec, little bit of school, the food was not that good, they pepper sprayed. I think that’s about it.” (VII 51:22–25) N.H. testified that the one thing she would change about the conditions at CCJ is that she would permit physical contact with family during visitation and offer free telephone calls. (VII 21:7–10) Although some juveniles at CCJ engage in “payroll” to force others to relinquish their food (that is, to “pay” the demanding juvenile), the evidence demonstrates that the deputies, when aware of the prohibited “payroll,”
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administer proportionate discipline and constructively meet the circumstance. (XII 164:4–176:19)
The layout of each section of the facility is designed so that the two deputies on duty in the common area of each half have a clear view of the three dorms, which are arranged in an L-shape and enclosed by glass. (XVII 39:6–40:10; Ex. 87–584, 87–818, 87–821) Each dorm has an open center area, called the dayroom.
Both the evidence and my first-hand inspection of the facility establish that CCJ is brightly lit and features “good sightlines,” which is an issue “in any correctional environment pretty much that’s ever been built.” (XV 198:22–199:1) The “glassed fronts of the various housing units provide for quite good visibility” and with the addition of “extra camera angles and monitors” and the radio frequency identification (RFID) system “the accountability and overall supervision of the juveniles is quite good.” (XV 199:2–11) The facility is conspicuously clean, orderly, and free of any unpleasant odor. (Penn, XXII 18:3–15) Observation of the dayroom through the glass is “as good as it gets” for detainees on direct observation. (XXII 19:4–20:21)
CCJ is inspected annually for compliance with the Florida Model Jail Standards, including the standards for pre-adjudicated and direct-filed juveniles. (Allen, XVII 82:19–83:2) Every three years, CCJ is inspected and accredited by the Florida Corrections Accreditation Commission (FCAC). (XVII 83:3–8) In addition, CCJ is inspected every year for compliance with the federal regulations regarding
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“sight and sound” separation from adults. (XVII 83:9–13) CCJ has passed each inspection. (XVII 83:18–25) CCJ has been accredited by the National Commission on Correctional Healthcare (NCCHC), which establishes guidelines for correctional facilities. (Penn, XXI 235:20–23)
The evidence also demonstrates that a structured schedule is important to CCJ’s management. (Allen, XVII 223:21–23) The daily schedule includes breakfast and medication rounds from 4:00–4:30 a.m.; time to sleep after breakfast; time from 6:30–7:00 to prepare for school; school from 7:30–2:30, which includes lunch, recreation, showers, and laundry from 2:30–3:30 and dinner and lockdown for the shift change and in-cell recreation, including time to use the telephone, until bedtime and lockdown at 9:00 p.m. (Marcum, IV 116:1–118:17) The detention staff has found that some free time benefits the juveniles, who, after several hours of classes, are permitted discretionary time in the dayroom as long as they remain constructive and good-spirited. (XVII 90:11–22)
Several issues initially raised by the plaintiffs are moot because the policies and procedures at CCJ have evolved since the facility opened to juveniles in September–October 2011. The changes include elimination of the “holding cage,” elimination of the holding area for even temporary suicide watches, installation of cameras in each sleeping cell with monitors posted above each dorm, updating the physical facility, re-location of the classrooms, a forty-eight-hour review for juveniles in isolation, and installation of an RFID system. Although the plaintiffs credit these
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changes to the present litigation, for the reasons explained earlier in this order, the evidence negates that inference in this instance.
The plaintiffs launched no challenge against the constitutional propriety of CCJ’s written policies and offered neither evidence nor argument that the written policies offend the Constitution. Further, the plaintiffs offered no evidence of a widespread, persistent pattern of constitutional violations. The plaintiffs’ main contention depends upon an alleged pattern of excessive, dangerous fighting among the juveniles. But the evidence fails to establish that the frequency or ferocity of fighting at CCJ exceeds the intrinsic frequency or ferocity observable anywhere or, in fact, exceeds the practical minimum in a facility of comparable size, configuration, resources, and population. The plaintiffs fail in their attempt to transform unconnected, random episodes of characteristic, institutional misbehavior by juvenile detainees into a widespread, persistent pattern of deliberate indifference by the Sheriff, a pattern resulting in a substantial risk of serious harm.
Because “the status of being subject to a governmental institution that was not organized or managed properly” is alone insufficient to “invoke intervention of the courts,” the plaintiffs — to prove a claim — must prove actual or imminent, serious harm. Lewis v. Casey, 518 U.S. 343, 350 (1996). Absent proof of an actual serious harm or even an imminent serious harm, the plaintiffs employed such expedient devices as attempting to define “serious medical need” with impermissible breadth by inflating the definition of “serious mental illness” to encompass almost every mental
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or emotional issue and by failing to differentiate between a mild, manageable instance of a “serious mental illness” and a dangerous, unmanageable instance of the same “serious mental illness.” Also, the plaintiffs generalized about the failure to dispense medicine to detainees, but in every, or almost every instance, the evidence establishes a benign explanation, such as that the detainee discontinued the medication before detention began, that the detainee refused the medication, or that the detainee requested no medication. Even the plaintiffs’ detainee witnesses confirmed receipt of their medication.
The Sheriff’s conditions of confinement and use of force expert was Richard Hough, a professor of criminal justice and criminology since 1996, who was a director for a law enforcement and corrections academy at Manatee County Sheriff’s Office, including implementing their first juvenile boot camp; the Director of Corrections in Manatee County and later for Santa Rosa County; and the Director of Law Enforcement for Santa Rosa County. (XV 140–51) In 1998, Hough began working for DJJ as superintendent for Okaloosa Regional Detention Center, where he recruited and trained seventy staff members. (XV 152:3–23) DJJ asked him to assume control over the Escambia DJJ Center. (XV 153:11–25) At the end of 2002, Hough was promoted by DJJ to Chief of Support Services and was also a quality assurance inspector on a team that inspected DJJ centers for state compliance. (XV 154:15–19, 155:16–20) He is a certified instructor on use of force and during his career has trained hundreds of officers on the use of pepper spray. (XV 160:8–11,
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182:8–22) Hough also has a master’s degree in public administration from Harvard University and a doctorate in education with a concentration in public administration from the University of West Florida. (XV 145:15–25, 147:18–24)
The Sheriff’s pepper spray and facility security expert, Gary DeLand, started his law enforcement career as a dispatch officer for a sheriff’s office, was later transferred to the juvenile division, worked in jail administration, became Director of the Utah Department of Corrections in 1985, and was later hired to be head of the Utah Sheriff’s Association. (XIV 17–26) Through his positions, he gained extensive experience supervising, evaluating, and designing corrections facilities. (XIV 25:20–26:2, 34:3–37:10) Although the plaintiffs attempt to discredit DeLand’s testimony because he stated that juveniles are not his specialty (XIV 27:9–12), DeLand was referring to general juvenile corrections issues and not the subject about which he testified, the use of force, specifically pepper spray, and detention security issues. Indeed, one of the main points of DeLand’s testimony is that the effectiveness and safety of pepper spray does not hinge upon whether someone is eighteen — “our job is to do what we can to protect and the fact that you turned eighteen or didn’t turn eighteen has very little effect on the danger to yourself or others that you may present given your present circumstances.” (XIV 28:21–24)
The plaintiffs’ conditions of confinement and use of force expert, Paul DeMuro, has two degrees in English but has never worked in law enforcement or corrections. DeMuro has worked in juvenile detention and considers himself a
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“practitioner” and “technical assessment expert” in helping people improve force and last used force himself about twenty years ago, when he assisted an officer who used force. (V 35:11–39:11) His “methodology” of assessing CCJ included reviewing documents, performing on-site observation, and interviewing juveniles. (V 21:11–22:20) DeMuro is not qualified to opine on the need for, the quality of, or the effectiveness of either medical health care or mental health care.
DeMuro tended toward sweeping generalization about the typical conditions of confinement in juvenile detention in the United States. However, the lack of an articulable and pertinent factual basis for DeMuro’s generalizations eroded his and their credibility. DeMuro’s relevant knowledge derives primarily from “consent decree” cases, in which he serves as a monitor or consultant and which are neither comparable nor instructive for an array of reasons (not the least of which is the sometimes lack of a bona fide adversarial relation between the plaintiffs and the defendants, each of which stands to gain from the litigation). A consent decree adjudges nothing for anyone except the parties. DeMuro’s explanation for his and the plaintiffs’ failing to provide comparable data from elsewhere during their effort to show excessive violence at CCJ — the explanation, for example, that the standards for the several institutions’ compilation of data would not precisely compare — is a transparent and evasive contrivance, which again erodes his and its credibility. (Of course, if the data on, say, violence that is at DeMuro’s disposal is not informative, instructive, and useful, even if not precisely comparable, on what are DeMuro’s
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sweeping generalizations based? On the other hand, what “adjustments” has DeMuro impressed on the data in arriving at his conclusion, say, that violence at CCJ is comparatively “alarming”?) Like Glindmeyer, DeMuro was often unpersuasive because, among other reasons, he was too much the advocate who attempts to substitute the force of his professional authority (not as great as he supposes) for the authority of data, method, and learned deliberation (and crossexamination).
The Sheriff’s mental health expert, Penn, is board certified in general psychiatry, child psychiatry, and forensic psychiatry. (XXI 192–98) Penn has considerable experience working in juvenile corrections, including his current position as head of juvenile corrections for Texas, where he has overseen, from a mental health perspective, the use of pepper spray on juveniles. (XXI 199–206) Penn has trained juvenile staff on psychiatric issues and has clinical involvement with juveniles. (XXI 214:4–14, 221:5–24) He also serves as the psychiatric director for the Texas Juvenile Justice Department, oversees services for two county jails, and teaches at the University of Texas. (XXI 218:16–220:23) Penn’s correctional mental health career has included developing and implementing mental health policies and procedures on correctional issues, including segregation and the use of pepper spray. (XXI 222:8–226:12) He has written peer-reviewed articles, been a member of several professional committees and organizations, and is a surveyor for the NCCHC. (XXI 231:4–235:19; XXII 4:15–5:17)
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The plaintiffs’ mental health expert, Daphne Glindmeyer, is a Southern Poverty Law Center consultant. (IX 131:3–13) Her experience with juvenile corrections is that she has been on teams that monitor compliance with consent decrees (VII 198:1–3) and was a director of operations for a juvenile correctional program established in a settlement agreement. (VII 202) Glindmeyer has never published articles on juvenile detention, the use of pepper spray, or the psychiatric effects of pepper spray or isolation on juveniles. She has never been involved in developing policies or procedures for juvenile detention. She has never treated a juvenile for mental health issues caused by the use of pepper spray or the placement of a juvenile in isolation. Glindmeyer’s opinions regarding pepper spray and isolation were based solely on a literature review.
Glindmeyer’s cross-examination demonstrated her lack of objectivity in formulating expert opinions. For example, her initial report cited as a basis for her opinions condemning the use of pepper spray an article from the Texas Criminal Justice Coalition. This article advocated against pepper spray in the juvenile population based upon research regarding the underdeveloped pre-frontal cortex of individuals less than twenty-two and a half. Although initially Glindmeyer cited to the article as “scientific literature,” she subsequently acknowledged that the article was a policy paper authored by an advocacy group against the use of pepper spray. (Glindmeyer, VIII 62:20–63:5; 64:4–15) Glindmeyer’s citation to an advocacy group’s position statement as a basis for an expert medical opinion typifies her lack of
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professional detachment and judgment and her assumption of the role of advocate. When pressed, Glindmeyer acknowledged that she is personally opposed to the use of pepper spray in any detention setting, regardless of the inmate’s age. Also, Glindmeyer uncritically accepted the reports of juvenile detainees without reviewing the testimony of the deputies about the same incidents.
In general, Glindmeyer was unpersuasive. She is apparently sincere, even passionate, and certainly committed in her views, but she is much too much the advocate for a point of view, and she too easily and too frequently confuses her personal worldview and beliefs with the professional assessment offered in her role as an “expert” witness. Like some other health care providers who testify, she too readily and too often becomes an advocate, aiming to advance the interests of her patient or constituency, and not an expert analyst, providing reliable, detached, and learned assistance to a finder of fact. Neither her demeanor as a witness nor her bearing as a professional was reassuring (and was garnished with occasional flippancy). Finally, Glindmeyer displayed a propensity for the sly use of words. For example, plaintiffs’ proposed findings (Doc. 529 at 81, ¶ 219) cite Glindmeyer for the contention, “Holding a child in isolation even for a relatively short period of time is harmful.” That is hyperbole — misleading, provocative, and calculated to appeal to emotion rather than reason. In fact, unless “harmful” includes some unspecified, elusive, and trivial or abstract “harm,” the statement is also untrue. If the truth of the statement depends on including some trivial or abstract “harm” that putatively
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attaches — but only immaterially or potentially — during every isolation, despite the brevity of the isolation or the attentiveness of the jailor, the statement is inexcusably misleading and, consequently, discrediting — but not atypical of Glindmeyer. The record in this action contains many other words — “injury,” “fight,” “violence,” “physical force,” “mental disorder,” “mental illness,” “suicidal,” “encounter” (between juvenile and medical staff), “traumatic” — that become similarly misleading to the disinterested observer when used by a witness to include immaterial, trivial, abstract, or merely potential incidents or exemplars of the kind. Featuring other words of elastic definition, such as “isolation,” the meaning of which varies dramatically from time-to-time and from place-to-place in this action and elsewhere, the evidence contains a legion of planted word traps for the unwary.
The Sheriff has no constitutional obligation to provide “rehabilitative services” to a juvenile detainee. The purpose of secure detention is to keep both the detainee and the community safe and to deliver the detainee safely and reliably to the court for hearings and trial. Fla. Stat. § 985.02(4)(a). The plaintiffs’ claim is based on statutory language including “rehabilitation” as one of the purposes of the juvenile justice system as a whole, but the plaintiffs fail to establish that the Sheriff is statutorily or constitutionally required, or even permitted, to “rehabilitate” a juvenile not convicted of any crime. See Houchins v. KQED, Inc., 438 U.S. 1, 37–38 (1978) (Stevens, J., dissenting) (“Certain penological objectives, i.e., punishment,
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deterrence, and rehabilitation, which are legitimate in regard to convicted prisoners, are inapplicable to pretrial detainees.”).
Not only did Hough testify that rehabilitation is not appropriate for a short-term facility, such as CCJ (XVI 82:15–83:22), DeMuro conceded that “rehabilitation” in juvenile justice occurs “post-adjudication” and thus the Sheriff is not required or permitted to “rehabilitate” a pre-trial detainee.7 (VI 76:4–77:11)
The plaintiffs failed to present predominant and convincing evidence at trial that a custom or policy led to any extreme deprivations, any inhumane conditions, the deprivation of any basic human needs, a lack of the minimal civilized measure of life’s necessities, or any other unconstitutional condition. The clear and convincing evidence established that — in the typical and predominant circumstances — force was used only in response to juveniles attempting to harm each other, to harm the staff, to display or otherwise affirmatively convey resistance, or to destroy property.
The plaintiffs argue that the fights and other violence are caused by the Sheriff’s policies. According to the plaintiffs, fights occur because deputies are not stationed in the dorms, because deputies are insufficient in number or training,
7 At trial, the plaintiffs’ claim apparently dissolved to a claim for failure to provide “habilitative” services, a claim never pleaded and a term introduced by DeMuro, who testified that the Sheriff has a “positive responsibility to provide a habilitative positive environment for young people.” In this amorphous and unauthorized version of the claim in Count I, DeMuro defines habilitation as receiving “appropriate interaction, role modeling activities” and “a variety of programs reaching out” to the juveniles. (V 57:21–58:1) No such obligation to a juvenile detainee at CCJ exists under the Constitution. DeMuro’s inspiration apparently arises primarily from post-adjudication detention centers operating under consent decrees he has monitored, where, according to DeMuro, there are “robust interactive programs.” (IV 210:10) In any event, the plaintiffs pleaded no “habilitation” claim, however defined.
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because the cell cameras do not record, and because the environment is insufficiently “nurturing.” For example, when testifying about Deputy Hillyard being lifted off the floor, violently spun, and slammed into a concrete pillar by a juvenile, DeMuro did not fault the juvenile but instead noted that “we don’t know how long he was locked up,” that the incident might have been caused by the “quality of their interrelationship that morning,” that two deputies should have been present, and that Deputy Hillyard should have been replaced. (V 116:5–118:23; VI 167:15–170:6) DeMuro also suggested implausibly that A.A.’s aggressive behavior should have been treated differently, if, for example, he had received bad news from home. (V 130:4–13)
The plaintiffs argue that the frequency of fighting at CCJ is unconstitutional. The plaintiffs argue without persuasive evidence that the fights identified in the evidence equate to a substantial risk of serious harm and that the Sheriff is deliberately indifferent to this risk. With only speculation to support the hypothesis that the number of fights among the juveniles at CCJ is materially reducible and regardless of whether the frequency and severity of fights at CCJ is normal, above normal, or below normal for a comparable juvenile detention facility (and the evidence remains stunningly silent on this heartland issue), the plaintiffs assert that the Constitution requires that the Sheriff follow their experts’ favorite prescriptions for juvenile detention. But the plaintiffs presented no convincing evidence that the episodic fights at CCJ over two years present a substantial risk of
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serious harm to the juveniles, that the level of fighting is above normal, or that the experts’ ideas would reduce the fighting in any respect.
DeMuro opined speculatively and unpersuasively that utilizing a certain staffing ratio, implementing “robust programming,” and posting deputies in the dorms “would help reduce the violence.” (V 91:5–17) Although DeMuro claimed that the number of fights at CCJ is “alarming” (V 175:5–14), DeMuro lacked any convincing basis in fact for his conclusion and could not document whether the number of fights at CCJ for its population was normal, above normal, or below normal (in fact, no party or witness attempted to define “normal” in the context of a juvenile detention center). (VI 113:16–20) DeMuro claimed that he did not even attempt to determine the “normal” data (VI 113:16–119:8) and had no factual basis for his opinion that the number of fights was “alarming,” which amounts to a meaningless conclusion without probative value.
On the other hand, Hough testified that the fighting at CCJ is below average and that the numbers are not “startling.” (XVI 89:5–9) Hough provided the only comparative data in the record, when he directly compared the number of fights requiring protective action at the Polk County DJJ facility the year preceding the pre-adjudicated juveniles transfer to CCJ. The DJJ fight rate was higher than at CCJ the following year, despite the fact that DJJ stationed deputies in the dorms and used no pepper spray — two measures claimed by DeMuro to reduce fighting. (XVI 130:21–131:8) Even according to the plaintiffs’ numbers,
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which reflect 200 fights over a 102-week period, the average number of fights is only two per week. Of course, the plaintiffs define “fight” in an implausibly broad manner to incorporate the routine, the trivial, and the otherwise inconsequential spat. The plaintiffs’ 200-number includes the broad array from a juvenile’s hitting someone who insulted his mother, a scrap during an athletic contest, and “horse play” to a planned assault by several juveniles on another.
The plaintiffs failed to prove that the remote and speculative risk of harm based on the level of fighting at CCJ “is not one that today’s society chooses to tolerate,” McKinney, 509 U.S. at 36, and the plaintiffs assume — but failed to prove — that the level of fighting poses a substantial risk of serious harm. Further, the evidence fell very far short of proving that the Sheriff is deliberately indifferent to the risk of fighting, however the risk is characterized.
The evidence at trial established that pepper spray combines a “low level of force”; an alternative clearly safer for both staff and inmates than achieving a forceful, physical submission; a significantly lower level of injury; a relatively short recovery time; and an effective means “for restoring and maintaining order.” (DeLand, XIV 37:19–38:1, 65:1–2) Pepper spray achieved wide use in the 1980s and replaced CN and CS gas, which have potentially harsher effects than pepper spray, which is a transient inflammatory. (DeLand, XIV 38:5–24) In detention, pepper spray serves as a distraction (XIV 39:15), creates a temporary but intense discomfort instead of injury (XIV 40:14–15), and provides time for a deputy to control a detainee
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without a fight. (XIV 40:14–23) The most intense effects of pepper spray resolve in twenty minutes or so, although residual effects can linger for an hour or two. (XIV 40:10–13) The use of pepper spray is safer than a fight. (XIV 73:21–24) Even Glindmeyer testified that she found no evidence of any juvenile who suffered any mental health complication, including post-traumatic stress disorder, following the use of spray. (IX 182:22–25) Pepper spray is not used during a protective action with a juvenile known to be pregnant or with a juvenile in obvious respiratory distress. (Choquette, XII 145:1–6)
In sum, pepper spray is effective for quickly stopping a fight without inflicting an injury, and nearly every use of pepper spray at CCJ is to stop a fight. (Allen, XVII 105:8-17) In one memorable example, with pepper spray Deputy Gay alone stopped a fight among six juveniles; no one was hurt. (XII 112:10–114:14)
Penn testified, and the evidence confirms, CCJ is in substantial compliance with the standard of care for mental health care after a juvenile is sprayed. (XXII 11:7–15:21) Specifically, as Penn confirmed and the evidence establishes, CCJ’s policy and practice of allowing juveniles to shower, receive a clean uniform, and visit the nurse after an administration of pepper spray conforms with sound practice. (XXI 232:5–21) Penn also found that the prompt nursing examination adequately accounted for the juveniles’ mental health because of the availability of a referral to mental health, if warranted. (XXII 82:14–87:14) Despite his twenty-five
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years of experience in juvenile corrections, Penn was unaware of any instance of mental health injury from the administration of pepper spray. (XXII 75:12–83:11)
The evidence contains no evidence of a lasting, negative effect from pepper spray. The plaintiffs’ expert, Glindmeyer, testified that studies show hands-on uses of force increase the chance of physical injury by 15–30%. (IX 210:17–20) She further testified that no scientific study has established that pepper spray is more traumatic for a juvenile’s mental health than hands-on techniques and that hands-on techniques could cause the same level of traumatic experience as spray. (IX 209:9–210:6) Whether to use spray or another type of force depends on the juvenile’s size, strength, and apparent tension level. (Choquette, XII 195:8–196:8) No consensus exists among detention specialists on whether on the use-of-force continuum hands-on techniques or pepper spray is a greater use of force. (Hough, XV 192:8–20)
A fight requires the immediate exercise of control to stop the fight, prevent injury, and prevent escalation. (Hough, XV 209:5–8) Pepper spray is effective, precise, and safe but transiently painful. Physical force is occasionally necessary but imprecise and dangerous. (Allen, XVII 55:7–22, 181:2–183:22) For example, when S.J. engaged him, Deputy Cranor first attempted physical techniques but resorted to spray when those attempts failed to control S.J.
Acknowledging at trial that the Constitution permits the use of pepper spray when managing juveniles (XIII 139:11–140:7), the plaintiffs shifted to a theory
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(1) that the use of spray would occur less often if there were fewer fights, which — according to the plaintiffs — are caused not by juveniles qua juveniles but by the Sheriff’s policies and (2) that the force chosen was unconstitutional because “less” force could have been used. But the evidence did not prove that one “penological theory yields superior results to the other” or whether, if there is a difference, “that difference is of constitutional proportion.” (XIII 132:22–133:25)
The predominant, persuasive evidence demonstrates that every time (or at worst, almost every time) the staff administered pepper spray, the sprayed juvenile was examined by a nurse, issued a clean uniform, and offered the opportunity to shower. (Marcum, III 45:11–13; Choquette, XII 186:24–187:3; Cranor, XII 249:10–23) Although he claimed unpersuasively that he was neither offered a shower nor examined by a nurse after a spraying, T.H.2 admitted to rinsing his eyes and experiencing no long-term problems from the spray. (XI 84:8–11, 109:7–23) Even assuming the accuracy of T.H.2’s version, pepper spray presents no risk of serious harm even without the “after spray” protocols (Penn, XXII 81:20–83:11), and the clearly predominant evidence demonstrates that decontamination protocols are consistently and reliably followed, as uniformly directed by the Sheriff and the supervisors. (XXII 81:23–82:4) Even Glindmeyer admitted that CCJ’s records showed that juveniles saw a nurse each time spray was used. (IX 214:2–15)
The several, specific incidents of the use of pepper spray presented at trial demonstrate that pepper spray is used efficiently, effectively, and safely to stop fights
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and to protect detainees, staff, and property. In the few isolated incidents in which pepper spray was used in violation of the Sheriff’s policies, the offending deputy was firmly disciplined. The predominant evidence of a reliable, direct, disciplinary response by the Sheriff to an instance of rule violation by the staff strongly contravenes any inference of deliberate indifference.
The plaintiffs’ excessive force claim was often blended indistinctly into their conditions of confinement claim. The plaintiffs’ central claim, that force is used despite the availability of more pacific alternatives, presents more a difference in penological approach than a claim of unconstitutionality. For example, DeMuro testified for the plaintiffs that, when a juvenile is defiant and verbal de-escalation fails, an officer should walk away and let the confrontation defuse naturally. (VI 15:8–13) However, the Sheriff’s staff and experts adopt the view that security and order require that detainees disobey neither rules nor commands and that a detainee rarely stops misbehavior when asked meekly. (DeLand, XIV 47:8–17) The Sheriff’s policies and the deputies’ perceptions receive constitutional deference, that is, as Youngberg and later precedent requires, a corrections and detention professional’s choice of penological approach receives constitutional deference.
Every detention deputy at CCJ is trained in the use of pepper spray and the use of force continuum (Allen, XVII 47:3–14), which begins with officer presence, including eye contact; progresses to verbal de-escalation and commands and pressure point controls for passive resistance; proceeds to an intermediate weapons stage for
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active resistance, which includes pepper spray; and concludes at the highest level, if a detainee remains aggressive and violent. (XVII 47:15–50:9) The type of force deployed depends on the environment; the detainee’s demeanor, potential for harm, and size; and the presence of a weapon. (XVII 56:10–59:14) After each use of force a deputy must submit to supervision a Protection Action Response report. (XVII 50:10–51:21) If untruthful on the report, a deputy is fired — a fact well-known by the staff at CCJ. (XVII 51:22–52:1)
The predominant evidence establishes that CCJ is adequately staffed. Much more important to the resolution of the present action is the plaintiffs failure by a comfortable margin to demonstrate that the Sheriff is deliberately indifferent to the staffing needs of CCJ. Also, not a scintilla of evidence supports the notion that the Sheriff has a “deliberate intent” to inadequately staff CCJ or that any allegedly deliberate understaffing proximately caused constitutional harm to anyone. The predominant evidence supports Hough’s testimony that, in the hundred-plus videos that he reviewed, no incident involving a juvenile resulted from the Sheriff’s staffing policy. (XV 199)
The plaintiffs’ theory that the Sheriff’s policy governing the number and deployment of staff causes constitutional injury because another policy might result in fewer fights and fewer uses of pepper spray is speculative (perhaps even fanciful) and unsupported by the evidence in this action or any reliable and germane report from elsewhere. The plaintiffs failed to prove that the level of fighting or the use of
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pepper spray creates a substantial risk of serious harm. In fact, the predominant evidence established that the deputies’ response time for a fight was uniformly excellent — reliably prompt (that is, measurable in seconds, not minutes) and often immediate — and that peace was typically restored promptly and without a material or lasting injury.
DeMuro testified in a conclusory and unpersuasive manner that the “norm” for juvenile detention centers is that officers work “inside the living areas,” interact with the youth, and organize activities, such as discussions of current events, letter writing, and spelling bees. Neither the claimed scope of DeMuro’s notion of “interactive juvenile justice” nor data, if any exists, to support the claimed results — in juvenile detention or elsewhere — appears in the evidence. (IV 210:16–20, 67:23–68:12) Similarly, DeMuro could not name a juvenile detention facility in the Eleventh Circuit that utilizes the staffing ratio he claims is a “norm.” (VI 123:6–14) No persuasive evidence establishes the existence of DeMuro’s claimed “norm” and, in any event, the Fourteenth Amendment is not a brute force mechanism to quash any departure from a perceived penological “norm”; the Fourteenth Amendment is a mechanism to prevent cruel and unusual punishment, to prevent deliberate indifference to a substantial risk of serious harm, and not a mechanism to enforce the latest fashion in penological theory or the latest aspiration of the consultants.
The evidence demonstrates, at the very least, that the staffing at CCJ is adequate and, in all events, that the Sheriff’s staffing policies and custom create no
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substantial risk of serious harm. (Hough, XV 198:15–19) Not only are there normally six deputies directly supervising juveniles at CCJ, as well as a DSS in each control room with a clear view of every dorm, but other juvenile-trained staff, including sergeants, lieutenants, the school resource officer (who is a certified detention deputy), transportation deputies, and the captain regularly spend significant time in the juvenile housing units. (IV 112:21–116:9)
The relation between the presence of officers and the incidence of fighting is not inevitably and smoothly inverse. In fact, the evidence reveals instances in which an officer’s presence encourages or, more frequently, enables a fight because the instigator of the fight knows the officer will intervene and stop the fight before the object of the attack retaliates against the instigator of the attack. (Hough, XV 213:2–17) Deputy Gay acknowledged that “sometimes they’ll fight right in front of you.” The videos in evidence depict vividly the common occurrence of a fight that begins in the immediate presence of a deputy (XII 52:22–53:4); in almost every instance more than one deputy arrives at the fight scene in seconds. In Deputy Choquette’s experience, a juvenile will fight even if deputies are in the dorm. (XII 178:22–24)
Understanding the calculus of juvenile fighting exceeds the scope of this action (and exceeds the competence of the witnesses). But, however actuated, instigated, or induced, the fighting at CCJ is not shown by the evidence to exceed the typical, intractable rate — the evidence fails to establish that rate. Further, the
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fighting at CCJ is not — by a long shot — shown by the plaintiffs to create a persistent, widespread pattern that creates a substantial risk of serious harm to the detainees, to all of which the Sheriff is deliberately indifferent. The plaintiffs’ claim that fighting at CCJ is unconstitutionally fierce, frequent, and dangerous is wholly impressionistic, conclusory, and outside the scope of the evidence.
An alleged deficiency in training is not itself a constitutional violation. The plaintiffs must prove that any alleged deficiency reaches constitutional severity and causes some constitutional “harm.” However, the plaintiffs presented no persuasive evidence that the training at CCJ is deficient or that the training creates any constitutional harm. The plaintiffs’ expert DeMuro could not testify to a material deficiency in the deputies’ training and apparently had reviewed neither the fortyhour juvenile training curriculum nor the crisis intervention training received by each deputy, although after his review of a summary of the curriculum DeMuro concluded that the topics were appropriate. (VI 69:6–70:18)
Every detention deputy who works with a juvenile is certified in corrections, which includes training specific to juveniles. (Allen, XVII 43:5–14) Also, the deputies receive crisis intervention training (CIT). (XVII 47:21–48:2) Before working in the juvenile unit, each deputy completes a forty-hour training course specifically geared to juveniles, although the training is not required by statute or otherwise. (Marcum, XIV 90:6–11, 99:18–23) The training topics include juvenile behavior, communicating with a juvenile, behavior modification, benefits of a
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structured environment, suicide prevention, hospital watch requirements, admission and medical process, the Juvenile Assessment Center’s risk assessment instrument, concepts related to the authority to treat juveniles, and the classification system for pre-adjudicated juveniles. (XIV 93:4–94:24, 99:5–17) Deputies also receive inservice training and daily shift briefings. (XIV 101:23–104:12; IV 111:13–112:20) Hough and Penn both testified, and the evidence establishes, that the training is adequate.
Corizon nursing staff receive training — on initial hire and annually — on identifying mental health needs and suicidality of youth. (Scott, XX 100:12–16) The training includes identifying symptomatology that requires referral to medical or mental health and includes instruction on suicidality, suicide prevention, and suicide watch. (Allen, XVII 43:5–17, 46:21–47:2; Judd Ex. 68:2–51; Marcum, XIV 162:4–12; Scott, XX 100:20–24) Also, Corizon mental health staff provides corrections staff with annual suicide prevention training. (Marcum, XIV 103:22–104:2)
Corizon’s nurses, who care for the juveniles at CCJ, work twenty-four hours, seven days a week. Each nurse is licensed by the State of Florida and, as part of their training and licensure, attend classes and clinical rotations on mental health issues. (Jennings, XVIII 7:14–9:19; Bender, XIX 126:24–127:10)
The goal of the grievance system at CCJ is prompt resolution of a detainee’s complaint. (Marcum, XIV 112:3–113:2; Choquette, XII 172:11–174:2) The detainee
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orientation packet discloses the grievance system. (Marcum, XIV 117:9–23) No detainee has complained that the disclosure is confusing. Also, notice of the grievance system is posted in the dorms. (XIV 231:13–24) The plaintiffs present no evidence that juveniles were unaware of the grievance system or that grievances were not addressed. T.H.2 testified that he knew that he could file a grievance and that the two times he completed and submitted the form, the deputies accepted the form for processing. (XI 115:5–20) CCJ’s grievance system appears lightly used and not vigorously advertised, but the system appears available in a good faith and wellintentioned manner in the typical circumstance. A reasonable inference from the evidence is that Captain Marcum and the staff, dealing with a population of detainees only about half of capacity, typically are aware of complaints and manage them informally.
The plaintiffs presented no evidence of a substantial risk of serious harm resulting from the Sheriff’s policies and customs regarding record keeping. The evidence shows a consistent pattern of adequate recordkeeping, demonstrated by the thousands of pages of incident reports and protective action reports produced in discovery. Of course, record keeping at CCJ, as at every office everywhere, is inevitably imperfect — at CCJ primarily because of inescapable human error and distractions inherent in minding several dozen juvenile detainees. The evidence reveals occasional errors and omissions but no policy, pattern, practice, or the like of indifference. (XVI 79:15–18)
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Deputies are disciplined for improper reporting, such as when Deputy Harrison was disciplined for not creating an incident report after spraying around the holding cage (another incident, on the whole regrettable, in which no serious harm occurred). (III 69:19–25) Captain Marcum tracks the report of every fight, every assault, and every protective action that occurs at CCJ. The reports are compiled into monthly reports. (III 65:11–17; IV 147:12–148:5) The monthly reports are submitted to Major Allen, the security division major, who compiles them into annual reports. (III 65:18–23) Shift supervisors keep track of each incident, such as a suicide watch, that contributes to the monthly and annual reports. (Allen, XVII 109:6–25) An early intervention program tracks whether a deputy participates in five protective actions within twelve months, which initiates a captain’s assessment of whether a troubling pattern exists and requires intervention; in turn, the captain’s supervisors review the captain’s assessment. (IV 148:6–14; XVII 111:16–113:19)
From his initial assumption of responsibility for juvenile detainees in the fall of 2011, the Sheriff has continuously improved the policies and practices and the facilities at CCJ. Some changes were to comply with the Florida Model Jail Standards — for example, each camera in the living area must record. (Allen, XVII 34:7–36:11) Other changes have responded to experience and advice. For example, after realizing that juveniles were using the “wing rooms” to fight, the Sheriff installed a camera in every cell. (XVII 122:8–14) Each camera displays on a large flat screen monitor above the door of each dorm. (XVII 120:13–24; Judd’s
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Exs. 92-34, 92-22, 92-26) The Sheriff also installed a camera in the isolation cells. The cell cameras increase the deputies’ ability to observe the juveniles. (Allen, XVII 122:25–124:2)
Another improvement, the RFID system permits CCJ to better monitor the detention deputies to ensure each deputy reliably completes the deputy’s periodic rounds. (XVII 125:4–126:15; Judd’s Exs. 92-40, 92-47) The RFID system comprises a device strategically placed on the wall in each dorm. The deputies must submit an identifying device to a scan during each round. This permits CCJ to monitor whether the deputies during their rounds walk to every corner of the dorm and examine each cell. (XVII 127:4–24)
Another change was that the holding area earlier consisted of two large screen structures with a long bench inside, called the “holding cages.” (XVII 121:9–21) Although not inhumane, unconstitutional, or cruel, these holding areas projected a grim appearance and were perceived by some as inappropriate to a juvenile setting. CCJ’s supervisors removed the structures and substituted an improved holding area. (Marcum, XIV 140:7–22; Allen, XVII 128:6–130:20; Ex. 89.1)
The evidence at trial demonstrates that the Sheriff continuously tries to improve the policies, practices, and facilities at CCJ. Deputy Brown testified that the behavior of the direct-filed juveniles has improved from the time they transitioned in September 2011 to CCJ from the South County Jail, which was a “more constricted environment.” (XV 39:6–13) The combination of the RFID system and
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the camera monitoring system frees the deputies’ time and permits them more time in the dorms. (XV 39:14–40:14) The reward system has also improved relations between the juveniles and the staff, and the enforcement of consequences has improved the juveniles’ behavior. (XV 39:14–40:14, 54:2–12) The atmosphere at CCJ has relaxed noticeably over the two years, and the juveniles feel “calm enough” to talk constructively to staff. (XV 40:16–41:9)
In addition, the Sheriff voluntarily submits CCJ to several accreditation processes. As noted earlier, CCJ is accredited by both the FCAC and by the NCCHC. (Penn, XXI 235:20–23)
The Sheriff’s management and staff at CCJ are professional and adequately trained; deputy misconduct is rare and isolated. (IV 160:20–24) When a staff member violates a policy, supervision responds. Again, as an example, Deputy Hester was removed from duty and resigned pending administrative investigation into a report he wrote that — he admitted — included false information. (Hester, XI 6:15–17; Marcum, IV 41:20–49:21) Hester resigned because he knew that “if you tell something that’s not true . . . you’re basically done.” (Hester, XI 60:4–22) Similarly, Deputy Harrison was removed from working with the juveniles after he improperly used pepper spray and failed to create a report after the incident involving B.G. and K.J. (III 69:19–73:13; IV 35:23–36:12) The other three deputies involved were counseled. (III 69:19–73:13; IV 35:23–36:12) Deputy Brown was suspended from duty after failing to make rounds in the T.W. incident. (XV 21:5–12) Deputy
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Cannon was disciplined for having incorrect contact (using his hand to move L.S.’s face) when attempting to prevent L.S. from removing his suicide smock. (Marcum, IV 55:11–56:9)
Upon admission to CCJ, each juvenile is screened by the nursing staff, and the presence of suicidal ideation will govern the juvenile’s housing. (IV 163:7–164:1) Although any staff member may place a juvenile on suicide watch, only mental health staff may approve removal from suicide watch. (IV 162:12–163:6) In other words, the Sheriff’s and Corizon’s policy sets a low standard to begin a suicide watch but a high standard to end a suicide watch.
The temporary holding area is no longer used for suicide watch. A juvenile on suicide watch is normally kept in the dorms, which decreases the frequent manipulative effort by the juveniles to feign suicide to achieve a housing assignment away from the dorm. (XIV 140:23–141:7) The procedures for suicide watch at CCJ are in line with prevailing national standards and pose no substantial risk of serious harm. (Penn, XXII 42:3–47:3) Penn testified, and the evidence establishes, that the Sheriff follows the prevailing standard of care in his suicide prevention policy and practice. (XXII 7:9–8:23, 33:6–34:14) In accord with the prevailing standard, the Sheriff and his staff credit every suicide threat, even if highly suspect or likely contrived. (XXII 41:4–6)
The suicide watch policy is the same for pre-adjudicated juveniles and directfiles — only those who commit an act in furtherance of a suicide receive the “full
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treatment.” A juvenile who states a suicidal intention but who commits no act in furtherance of the stated intention receives only one-on-one observation. (Marcum, IV 78:13–20) Although she testified that the “turtle suit” worn by an actively suicidal person is perhaps seen as “punitive,” Glindmeyer acknowledged that “when a person is experiencing suicidal ideation, the rule of thumb for a clinician is you do whatever you think you have to do in order to protect that person from themselves” by any necessary means, while acknowledging that “you can’t overprotect someone.” (VIII 45:5–16) She also confirmed that CCJ no longer uses the “turtle suit” in the manner that previously concerned her. (VIII 45:17–46:10)
The Sheriff’s management of the risk of suicide after a juvenile’s entry into CCJ accords with the prevailing standard. (Penn, XXII 42:3–44:2) Even if they suspect manipulation, the deputies act for the juvenile’s safety. (Marcum, IV 153:12–154:6) D.W. testified that every time he told a deputy he was suicidal, the deputy credited his statements and placed him on suicide watch. (D.W., XI 163:14–21) D.W. also testified that each time he was on suicide watch, he was interviewed by a mental health counselor. (XI 164:18–20) CCJ employs a safety net against juvenile suicide, and several opportunities are available for nursing staff and mental health staff to examine and counsel a suicidal youth. (XXII 44:3–53:4)
Shackling D.G. to her bed was an exigent and “immediate response to control her from possibly killing herself.” (XIV 144:12–145:10) She had threatened to run
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up the stairs and jump. (XIV 144:12–145:10) Medical staff was informed immediately after the deputies shackled D.G. (XIV 144:12–145:10)
L.S. was sent to the hospital after engaging in self-injurious behavior at CCJ. Before L.S. returned, the detention staff consulted with mental health to forge a plan to secure L.S. in a hospital bed using soft leather restraints. (Marcum, XIV 146:4–21) The staff had to “find a way to accommodate [L.S.] and keep him from hurting himself” because L.S. kept trying to remove his sutures. (XIV 147:1–6) The soft shackles were a solution appropriate to the critical situation — L.S. was kept in the hospital bed “long enough for his sutures to heal and mental health to assess that his self-injurious behavior had ceased.” (XIV 205:19–25)
The Sheriff treats suicide threats seriously, although knowing that juveniles sometimes manipulate suicide watch. The plaintiffs failed to present any persuasive evidence that the Sheriff is deliberately indifferent to any substantial risk of serious harm arising from the management of any suicidal juvenile — first, because no deliberate indifference was shown and, second, because no substantial risk of serious harm was shown.
Glindmeyer testified unconvincingly that the NCCHC standards are “sort of the floor for the provision of physical health care and mental health care in facilities.” (VIII 56:22–57:6; IX 240:11–22) Penn, who is a surveyor for NCCHC, testified convincingly that the standards are “best practices,” that very few facilities apply for NCCHC accreditation, and that fewer receive accreditation.
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(XXII 4:15–6:10) Only about twenty percent of the facilities across the nation are NCCHC certified; CCJ is one of those facilities. (XXI 235:20–22; XXII 96:17–25) Even though not constitutionally required, CCJ successfully seeks to attain “best practices” in many areas.
Glindmeyer testified — with some detectable but unpersuasive emphasis — that some studies show that on average sixty percent of juvenile detainees have “some type of mental health disorder.” (VIII 10:24–11:11) When asked for a more specific definition of the “mental health disorder” to which she alluded, Glindmeyer admitted that the sixty percent average includes anyone with “some type of mental health disorder,” that is, with any diagnosable condition ranging from grief over a death in the family to psychosis, from ADHD to bi-polarity, from hyperactivity to severe mental illness. Glindmeyer failed to provide (and the evidence fails to provide) a reliable and reasonably specific assessment of the typical number of persons in detention with a serious mental illness or, more to the point, a reliable and reasonably specific assessment of the typical number of persons, if any, in detention with a serious mental illness that might result in a “substantial risk of serious harm” if untreated during detention or treated in the manner typical of CCJ (not every person, to say the least, diagnosed with a “serious mental illness,” especially those on the milder side of the normal distribution of cases of a particular malady, presents a substantial risk of serious harm if untreated or treated in the manner typical of CCJ during a brief detention). Also, Glindmeyer admitted that she did not know if the
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occurrence of self-injurious behavior or exacerbation of pre-existing mental illness is higher at CCJ than for the general juvenile population or, more directly, that any juvenile had suffered an exacerbation of a mental illness while at CCJ. (IX 76:7–78:7)
Corizon provides a more realistic, better sourced, and more persuasive definition and assessment than Glindmeyer. According to Corizon, a “serious mental illness,” as that term is defined by the Society for Correctional Physicians, includes disorders of psychosis (such as schizophrenia, schizo-affective disorder, delusional disorder), bipolar I and bipolar II, major depressive disorder, mental “retardation,” and severe recurrent disorders. Nationally, the seriously mentally ill constitute 15.8% of the juvenile inmate population. (Scott, XX 59:16–60:9, 185:16–186:3; XXI 88:16–22) As stated earlier, ADHD is the most common condition seen in juveniles at the Polk County Jail (McRae, XVIII 186:14–22), but the general psychiatric community regards ADHD, by itself, as not a “serious mental illness.” (Scott, XX 186:5–7) Again, the record contains no reliable assessment of the number of juveniles, if any, in detention with a “serious mental illness” and who present a substantial risk of serious harm if untreated or if treated in the manner typical of CCJ.
Of course, the order (Doc. 500) certifying the class and subclass for this action specifies the definition of a “person who suffers from a serious mental disorder” as a person:
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(a) who reports or whose guardian reports to a responsible official within the Polk County Jail a diagnosis by a licensed medical professional qualified to diagnose and treat mental illness or a mental disorder or
(b) who either reports to a responsible official within the Polk County Jail the person’s own signs and symptoms or himself or herself manifests to a responsible official within the Polk County Jail signs and symptoms that a reasonable lay person would recognize as signs and symptoms that require prompt diagnosis and treatment by a qualified mental health care provider or
(c) who asks a responsible official within the Polk County Jail for, or is referred by a responsible official within the Polk County Jail for, mental health diagnosis or treatment and who, after the request for, or referral for, mental health diagnosis or treatment, is either diagnosed with a serious mental disorder or presents signs and symptoms that a reasonable lay person would recognize as signs and symptoms that require prompt diagnosis and treatment by a qualified mental health care provider
and who, in either (a), (b), or (c), if untreated during the foreseeable term of the person’s detention, incurs or poses a substantial risk of serious harm to the person himself or herself or to another detainee in the Polk County Jail.
In other words, for the purposes of the pertinent sub-class in this action a
person is regarded as suffering from a serious mental illness only if a failure to treat
that person during detention causes the person or another person to incur serious
harm or poses to the person or another person a substantial risk of serious harm. The
evidence in this action identified no such person — that is, no person who went
untreated during detention despite actual or imminent serious harm or a substantial
risk of serious harm. Glindmeyer could identify no one (certainly not enough to
constitute a class). During the approximately two years at issue in this action, no
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juvenile died; only two hospital cases occurred, each treated promptly; and no evidence exists of any serious harm to anyone or any substantial risk of serious harm to anyone owing to any policy or practice or any deliberate indifference to that policy or practice by the Sheriff or Corizon.
The plaintiffs completely failed to prove that the mental health care at CCJ amounts to cruel and unusual punishment. Through Glindmeyer, the plaintiffs insist that at CCJ mental health care resembles a “crisis assessment service” and that “there’s not a whole lot of mental health treatment ongoing at the facility.” (VII 231:1–2) Glindmeyer based this assessment on a review of thirty randomly selected records and on her interviews with some juveniles. (VII 227:3–16) As Glindmeyer admitted, her record review was inadequate and unreliable based on the sample size and her interviews, which were not “clinical” in accord with prevailing standards for forensic psychiatry. (IX 139:1–141:8, 180:10–182:4) Penn confirmed persuasively that Glindmeyer’s methodology in the evaluations was “fundamentally flawed.” (XXII 27:21–31:7)
Penn and Glindmeyer agreed that the standard of care for a juvenile detention center is the standard of care for a community mental health center (VII 219:8–14) and that the pertinent difference in juvenile detention is the scope and duration of care. (See XXI 206:5–17) Penn observed persuasively that CCJ is practicing the two components of the nationally recognized model for mental health care in juvenile detention. The two components are (1) crisis intervention and management and
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(2) continuity of care. (XXI 206:18–207:19) The goal of the crisis intervention and management is to identify the “acute precipitating factor for why somebody is in distress when they come into a correctional facility.” (XXI 206:7–10) The process for continuity of care is that mental health staff screen and evaluate detainees and perform further assessments if indicated. (Penn, XXI 206:18–207:4) Jennifer Allen, the licensed clinical social worker (LCSW), testified that she provides a level of individual therapy to juveniles on an as-needed basis. (XIX 19:16–21, 37:23–38:19) LCSW Allen and Penn confirmed that group therapy during pretrial juvenile detention is unworkable because the necessary level of confidentiality and continuity is unachievable in the available interval. (XIX 37:6–22) Even Glindmeyer acknowledged that the juveniles are in detention only briefly, when compared with patients in a private setting, and that the administration of therapy is impractical in the available days of detention. (VIII 194:11–22) Glindmeyer admitted that the average length of stay of eighteen days, which she calculated based on the approximately sixty charts that she reviewed, is a much shorter time for a physicianpatient relationship than a community health care provider would encounter. (Glindmeyer, VIII 194:18–22)
In the administration of the mental health service, CCJ follows national guidelines, and the customs and practices at CCJ create no substantial risk of serious harm to a juvenile detainee’s mental health. (Penn, XXII 10:5–17) The Sheriff arranged for service from a health care provider before assuming custody of the
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pre-adjudicated juveniles to ensure the availability of mental health care, including full-time nursing staff, a pediatrician, and a child psychiatrist on site and on call. (Allen, XVII 137:8–140:13) Improvements continue. For example, when CCJ opened, each juvenile received a mental health screening at admission, but only those with a positive result received a comprehensive mental health evaluation. (Penn, XXII 97:10–101:1) Now each juvenile receives a mental health evaluation within a few days after admission — normally within twenty-four hours.
More specifically, before arriving at CCJ, juvenile detainees are screened at the Juvenile Assessment Center, which screens for both physical and mental health issues. (Scott, XX 90:3–12) Thereafter, juvenile inmates are screened by a nurse immediately upon entry into CCJ using a medical history form and a mental health screening form. From this screening, a juvenile inmate will receive referral either for additional mental health assessment or to the general juvenile population, which indicates that no mental health follow-up is required immediately. (Scott, XX 88:23–90) In any event, each juvenile is screened by a mental health professional on the first business day after arrival at the jail. (Allen, XIX 25:24–27:18) Newly admitted juvenile inmates receive an orientation package that includes detailed instructions on available care. (Scott, XX 90:16–24; Marcum, IV 74:24–75:3) Additionally, an informational posting is contained in the dormitories describing available care. Juvenile inmates routinely submit forms (i.e., “sick call requests”) requesting both medical and mental health care.
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For an inmate placed on suicide watch immediately after entry to CCJ, a mental health professional conducts a comprehensive mental health evaluation and completes a “Suicide Watch Initial Progress Note” (Scott, XX 98:2–13), which ensures that the inmate on suicide watch receives greater access to a mental health professional than other juvenile detention inmates. (Scott, XX 99:10–15) The progress of a juvenile on suicide watch is recorded in progress notes and in a “Suicide Watch Flow Sheet.”
The medical records at CCJ establish that the psychiatric evaluation of a juvenile at CCJ includes an assessment of the juvenile’s initial chief complaint, the presenting illness, and information about the juvenile’s pertinent social and psychiatric history, including suicide attempts, psychiatric hospitalizations, medication trials, physical or sexual abuse, medications, family drug or alcohol use, appearance, orientation, behavior problems, speech, observed emotional status, thought process, suicidal ideation, homicidal or assault ideation, and diagnostic assessment (using the then-current version of the Diagnostic and Statistical Manual of Mental Disorders). (Scott, XX 112:6–113:24)
LCSW Allen has been employed by Corizon at CCJ since 2010 as a licensed clinical social worker. She possesses a master’s degree in social work and completed 2,500 hours of face-to-face therapeutic contact with patients while serving as a child case manager at the local community mental health center, the Peace River Center. LCSW Allen screens, evaluates, assesses, and provides counseling and therapy to
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juveniles at CCJ. LCSW Allen performs the comprehensive mental health evaluation administered to each juvenile within a day after entry into CCJ. LCSW Allen is on-call for a mental health emergency at all times and has responded to calls and conducted an examination on the weekend. When appropriate, LCSW Allen refers the juvenile to the attending psychiatrist, Timothy McRae, MD, a boardcertified, child and adolescent psychiatrist. McRae sees a juvenile receiving psychiatric services as needed or at a scheduled interval in the range of 90 to 120 days or more frequently, as ordered by McRae. McRae is LCSW Allen’s clinical supervisor, and Derek Zimmerman is merely the administrative supervisor to assist LCSW Allen on non-clinical issues.
Obtaining parental consent is often awkward, delayed, or impossible because, among other reasons, a parent or guardian might fail for many reasons to respond to inquiries from the medical staff. (Mangarella, X 94:11–19) However, in accord with policy, Corizon (X 94:20–96:11) “tries everything” to obtain parental consent in each case. (X 114:6–12) Improvements to the documentation process have occurred. (X 97:10–98:2) Corizon has implemented an entirely new medication verification system. (X 109:5–110:1) Although other issues might arise, the administration of needed medication or other necessary care in the absence of parental consent certainly fails to qualify as cruel and unusual punishment.
Perhaps the most vivid example offered by the plaintiffs of their claim of deficient mental health assessment is that G.H. was admitted on a Saturday,
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kept safe on direct observation through the weekend, and seen by mental health on Tuesday — at most, a one-day delay, which occurred because the mental health staff is not normally present on the weekends (absent an express need). (XXII 121:14–123:17) Glindmeyer acknowledged that no standard requires a mental health staff in the facility “24/7.” (VIII 192:2–14) Also, although CCJ has a policy of performing comprehensive mental health examinations within twentyfour hours after admission, the NCCHC “best practice” standard requires only that an examination occur within fourteen days after admission. (XXII 123:18–124:2; VIII 209:20–210:11)
G.H., who for two years before admission had sold his medication on the street and abused Xanax (XXII 125:6–11, 158:20–159:7), was seen by mental health staff (during this particular detention) on May 7, 13, 16, 17, 20, and 21. (XXII 137:2–6) G.H. was also seen by nursing staff twice per day from May 10–22 while on suicide watch. (Penn, XXII 246:1–25) On Sunday, May 12, 2013, the nurse performing his suicide watch observations noted suicidal ideation. G.H. was seen by mental health staff on Monday, May 13, 2012; received mental health care in accord with the NCCHC standard; and was kept safe. (Penn, XXII 137:11–138:3) G.H. was kept on suicide watch, although the assessments suggested that he manipulated the system in order to be housed with his brother. (XXII 89:11–25)
Glindmeyer was unable to identify a documented instance of the refusal of health care after a request by a juvenile. (IX 23:3–15) She never attempted to verify
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whether, for any claimed delay or denial of health care, the claimed delay or denial actually occurred. Of course, Glindmeyer never established any substantial risk of serious harm caused by a delay or denial of health care to a juvenile detainee. (IX 26:22–27:10)
Glindmeyer could not identify any juvenile detained at Polk County Jail who suffered post-traumatic stress disorder as a result of mental health care while in the facility. (Glindmeyer, IX 13:23–14:4) Similarly, she was unable to identify a juvenile who sustained any harm from suicide watch, isolation, or pepper spray. (Glindmeyer, IX 182:13–25) In fact, Glindmeyer has never treated a juvenile for a mental health illness or exacerbation of a mental health illness caused by isolation or exposure to pepper spray. (Glindmeyer, IX 134:14–22) Glindmeyer could not state within a reasonable degree of medical probability that any juvenile who came to CCJ with a mental illness suffered an exacerbation of that underlying mental illness as a result of a delay in care. (Glindmeyer, IX 77:5–13)
Glindmeyer cited a few examples of what she considered a delay of care. She testified that K.B. was referred to mental health on December 8, 2012, and again requested to see mental health on December 10, 2012, after witnessing L.S. cut himself in his cell. K.B. was not seen until December 12, 2012, at which time he had a comprehensive mental health examination. (VIII 81:13–86:4) K.B. had been given mental health treatment upon his admittance to the facility on December 5, 2012, at which time he was placed on a medical watch for benzodiazepine detox.
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(VIII 81:20–21) K.B. was seen by the psychiatrist three weeks after the incident and was prescribed medication, with a follow-up appointment to assess the prescribed medication four months afterwards. (VIII 87:2–22) Glindmeyer was unable to point to any harm sustained by K.B. (or by any other juvenile) or any substantial risk of serious harm to K.B. (or to any other juvenile) at the facility. (IX 182:5–12) Penn confirmed persuasively that, even assuming a delay, no substantial risk of serious harm existed because immediate care was available, if needed.
The second episode Glindmeyer cited was that D.M. was prescribed medication and seen by McRae for a follow-up appointment five months later but was not referred to McRae in the interim despite refusing medication three times in a row. (VIII 106:6–9, 107:12–108:11) Again, even accepting that their delay was too lengthy, no harm or imminent harm was established.
The third episode that Glindmeyer cited was M.D., who was admitted to the facility on Friday, April 12, 2013, and given a mental health evaluation on Monday, April 15, 2013. (VIII 118:21–25) Also, M.D. received a psychiatric evaluation, a prescription, and a schedule for follow-up in four months. (VIII 120:10–121:7) M.D. requested a mental health visit on July 2, 2013, because he was feeling more depressed and because he claimed his medications were not working. M.D. was seen by McRae on July 16, 2013. (VIII 21:8–12 and 123:18–19) On August 7, 2013, M.D. had a nose bleed and was seen the next day by the pediatrician, who ordered an immediate, complete blood count. (VIII 126:9–17) Although Glindmeyer
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speculated that this could signal thrombocytopenia, M.D.’s medical records report nosebleeds, more commonly resulting from sinus issues, before his coming to CCJ. (IX 86:5–87:18) M.D. began to refuse his medications and was referred to mental health again after his placement on suicide watch. (VIII 127:15–25) M.D. was sprayed with pepper spray during incidents on August 16 and on August 19, during a time when he was not on his medication. (VIII 128:3–10) McRae again saw M.D. on September 3, 2013. (VIII 128:13–14)
Neither these examples nor the balance of the record constitutes a recurrent and widespread pattern or practice of deliberate indifference to detainees’ serious medical needs. No harm resulted and no substantial risk of serious harm occurred because, had a serious medical or mental health need arisen, the juvenile would have had immediate access to care. (XXII 39:20–40:3, 42:10–43:20) Glindmeyer was unable to opine that any juvenile sustained serious harm to the juvenile’s mental health as a result of any practice at CCJ. (IX 182:5–183:3) As noted earlier, only two instances of hospitalization occurred at CCJ — the juvenile whose knee was dislocated and L.S. after attempting suicide. (VIII 212:10–213:7)
The testimony by the plaintiffs’ juvenile witnesses negated any inference of the Sheriff’s deliberate indifference to their serious mental health needs or of any other constitutional violation. The examples abound.
B.G. testified that he had no problem accessing medical care or mental health care when needed. (VII 109:24–110:16) B.G. believes his anger management
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improved during his detention at CCJ. (VII 137:3–8) J.P. was evaluated by a nurse upon arrival at CCJ on January 20, 2012. (I 90:14–21) D.M. testified that, during his initial screening at CCJ in May, he did not tell the nurse about his history of hallucinations because D.M. did not think she should know. (XIX 146:18–24) Although initially not disclosing his hallucinations in May at his entry screening, in November, D.M. requested and received the necessary medication. (XIX 147:5–20) During his first and fourth visits to CCJ, T.H.2 declined his Adderall for his ADHD, but he accepted the Adderall on his third visit because he was detained longer; his medicine, when requested, was received. (XI 112:3–113:16) D.W. chose to stop his medication for a while after arriving at CCJ in January 2012 but completed a mental health request form on June 4, 2012, saw the psychiatrist, and received his medication. (XI 153:1–155:1) Also, D.W. was seen by LCSW Allen, the social worker, during his first week at CCJ after claiming suicidal ideation. (XI 156:3–24) After a sick call request “related to sleeping, depression, and ADHD,” B.G.2 within two days saw the psychiatrist and received medication. (XIII 30:22–31:5) B.G.2 testified that he had no trouble accessing medical care, which would “take a few days.” (XIII 75:4–14) N.H. testified that, when she claimed suicidal ideation, the deputies immediately took her to the nurse for evaluation. (VII 33:16–24) LCSW Allen saw N.H. the next day. (VII 35:6–8) When B.G. claimed that he was suicidal, the nurse placed him on suicide watch and called the doctor for further instructions. (VII 53:14–54:6) After remaining on suicide watch throughout the weekend, both
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B.G. and K.J. were seen by mental health on Monday, released from suicide watch, and checked by mental health staff every week for three weeks. (B.G., VII 89:2–24) Mental health staff checked on B.G. every day while he was on suicide watch and continued to check on him afterwards. (VII 170:8–175:2)
The plaintiffs failed to produce evidence at trial that the Sheriff has a policy or custom of placing juveniles in isolation “punitively” or without due process and failed to prove any substantial risk of serious harm. The evidence establishes overwhelmingly that the Sheriff employed isolation only as a means to enforce institutional security and order — in a regulatory manner — and never as a matter of policy or practice in a punitive manner. The administrative isolation employed by the Sheriff implicates neither the Eighth Amendment nor the right to a due process hearing. In other words, as employed by the Sheriff, exclusively in response to the violation of a detention rule, isolation neither altered the detainee’s term of confinement nor “imposed an atypical and significant hardship in relation to the ordinary incidents of prison life.”
The Sheriff employs three forms of isolation — the most restrictive on the adult side is the secure housing unit (SHU), followed by the less restrictive administrative segregation, followed by a mere “timeout.” (Penn, XXII 60:16–62:6) For confining or controlling a detainee’s movement, CCJ has other options, which include cell confinement, “timeout” in the temporary holding area, temporary placement in isolation, and longer-term placement in isolation, which requires
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supervisory approval. (Marcum, XIV 133:19–134:25) At CCJ “isolation” means placement in one of the four isolation cells. (XIV 118:6–14)
If isolation is used for more than twenty-four hours, the facility captain, Captain Marcum, must approve. (XIV 124:12–25) Captain Marcum receives an administrative confinement report, and medical staff is notified. (XIV 124:12–25) As Penn stated, isolation at CCJ is less restrictive than isolation elsewhere. (XXII 68:1–22) “Segregation” is a term more frequently used when the purpose is removal of a juvenile from the audience of other juveniles in order to remove the stimulus that is provoking or extending bad behavior. (Allen, XVII 80:2–81:13) However, even if CCJ practice is properly denominated as “isolation,” CCJ uses safeguards, including a fifteen-minute check by a deputy, twice daily checks by nursing staff, immediate access to medical and mental health, and crisis intervention, if necessary. (XXII 70:15–71:24)
CCJ has substantially improved isolation policy since the opening in the fall of 2011. (Penn, XXII 63:2–17) Segregation for longer than three hours requires a supervisor’s approval, and segregation for longer than twenty-four hours requires the captain’s approval. The principal change in isolation policy is that every forty-eight hours the captain must evaluate and approve the reason for a juvenile’s isolation. (XIV 135:1–15) Captain Marcum recalls no juvenile’s isolation for more than twenty-four hours on any occasion since the beginning of 2013 — and the record discloses none. (XIV 137:3–23)
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Because isolation or segregation as practiced at CCJ neither constitutes solitary confinement nor presents an “atypical and significant hardship” in the ordinary incidents of detention life, no due process hearing or the like is required.
As elaborated in the findings of law, a detainee is not subject to “punishment” within the meaning of the Eighth Amendment. But the safety of staff, inmates, and property requires the Sheriff to maintain security and order — requires the maintenance of control — at CCJ. Inmate separation is often necessary. For example, the glass holding areas in the dorms are effective to separate a disruptive juvenile from others, especially at “lights out” as others begin to sleep. (XV 30:11–36:13)
A disruptive detainee is episodically placed in segregation briefly to “cool off” or to prevent further disturbance in the dorms. (XV 30:11–36:13) Other detainees are segregated for a medical reason, such as an entering detainee having a wound (or L.S. being monitored until his sutures healed) or, temporarily, if suspected of a contagious illness. (Marcum, XIV 119:18–120:7) The most obvious but also the most atypical example of longer-term isolation at CCJ was D.W., T.H., and M.H.’s placement in isolation for two months after assaulting T.W. in his cell. (IV 127:7–129:25) Placement in the general population was unacceptably risky because the three had brutally attacked another detainee. The three were removed from the dorm after wrapping towels around their necks in order to secure placement on suicide watch. (IV 127:7–129:25) The three used isolation “to be as disruptive as
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they could,” and a return to the general population would have been manifestly premature. After November 2011, no other juvenile was in isolation for any comparable time. (XIV 167:16–21)
DeMuro’s testimony that juveniles in isolation at CCJ were not permitted to attend school (VI 8:24–9:1) was refuted by other testimony, including the juveniles’ testimony. A juvenile in isolation is not deprived of human contact, a deputy checks them every fifteen minutes, and they attend school if they choose and if they are not misbehaving. (XIV 120:8–121:1) The nurse visits daily with a juvenile in isolation. (VII 157:22–158:2) A juvenile receives daily time outside the isolation cell to shower, walk around, talk to other juveniles, and use the telephone. (B.G., VII 80:3–13; D.W., XI 138:6–141:15)
The juveniles’ mental health needs are not ignored during or after they are in isolation. T.H.2 testified that he heard “blowing” in his ear during one of the four times he was in isolation but did not tell a deputy and did not develop any long-term problem from his time in isolation. (T.H.2, XI 89:17–90:18, 106:9–109:5) In another example, as soon as D.M. told detention staff he was hearing voices, staff immediately alerted mental health, and D.M. promptly received several mental health evaluations by LCSW Allen and McRae. (Penn, XXII 71:25–74:3) Penn observed that McRae proceeded with caution and treated D.M., who reported near the end of his confinement that the voices had stopped. The evidence negates any inference of the Sheriff’s deliberate indifference and establishes the absence of any
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substantial risk of serious harm to a detainee because of time in “isolation,” such as it is.8
CONCLUSION Because the plaintiffs failed to prove that either the Sheriff or Corizon was deliberately indifferent to any substantial risk of serious harm, and because the plaintiffs failed to prove that the Sheriff’s or Corizon’s policies or customs effect any other constitutional violation, the Clerk is directed to enter judgment for the defendants and against the plaintiffs on Counts I through V and to close the case. ORDERED in Tampa, Florida, on April 16, 2015.
8 As result of proceedings on the last day of trial, admission into evidence of the Sheriff’s proposed exhibits 45C through 45I remain under advisement. Applying again the standard applied throughout the trial (a standard explained at XII:30–36, exhibits 45C (except for the color-coded characterization of the “injury”), 45D, 45G, 45H, and 45I, each a mere enumeration, are admitted.
Exhibits 45E and 45F, which purport to chart a distinction between “spontaneous” and nonspontaneous” use of pepper spray (a distinction found in Thomas v. Bryant, 614 F.3d 1288 (11th Cir. 2010)), are excluded.
The objection to any other exhibit remaining “under advisement” is sustained.
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 Case: 8:12-cv-568 As of: 11/17/2017 12:54 PM EST 1 of 54
CLOSED, SL DOC
U.S. District Court Middle District of Florida (Tampa) CIVIL DOCKET FOR CASE #: 8:12−cv−00568−SDM−MAP

Hughes et al v. Polk County Sheriff Assigned to: Judge Steven D. Merryday Referred to: Magistrate Judge Mark A. Pizzo Cause: 42:1983 Civil Rights Act
Plaintiff
Chanda Hughes on behalf of T.H., a minor and all others similarly situated

Date Filed: 03/15/2012 Date Terminated: 04/17/2015 Jury Demand: Defendant Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question
represented by Donald J. Hayden Berger Singerman, LLP 1450 Brickell Ave Ste 1900 Miami, FL 33131 305−714−4369 Fax: 305−714−4340 Email: dhayden@bergersingerman.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joseph Peter Rindone Baker & McKenzie, LLP 452 Fifth Avenue New York, NY 10018 973/652−0800 Email: joseph.rindone@bakermckenzie.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Maria V Morris Southern Poverty Law Center 400 Washington Avenue Montgomery, AL 36104 334/956−8322 Fax: 334/956−8481 Email: Maria.morris@splcenter.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Miriam Fahsi Haskell Southern Poverty Law Center P.O. Box 370037 Miami, FL 33137 786/347−2056 Fax: 786/237−2949 Email: miriam.haskell@splcenter.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sheila Bedi Southern Poverty Law Center 4431 Canal Street New Orleans, LA 70119 504/486−8982 Fax: 504/486−8947 Email: Sheila.Bedi@splcenter.org TERMINATED: 06/18/2013 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steven M. Chasin

Case: 8:12-cv-568 As of: 11/17/2017 12:54 PM EST 2 of 54

Baker & McKenzie, LLP 815 Connecticut Ave NW Washington, DC 20006−4078 202/835−6132 Fax: 202/416−7132 Email: steven.chasin@bakermckenzie.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Tania Galloni Southern Poverty Law Center P.O. Box 370037 Miami, FL 33137 305/537−0573 Fax: 786/237−2949 Email: tania.galloni@aya.yale.edu LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jody E. Owens, II Southern Poverty Law Center 111 East Capitol Street, Suite 280 Jackson, MS 39201 (601) 948−8882 Fax: (601) 948−8885 Email: jody.owens@splcenter.org ATTORNEY TO BE NOTICED

Joseph Mamounas Bilzin Sumberg, LLP Suite 2300 1450 Brickell Ave Miami, FL 33131−3456 305/350−7273 Fax: 305/351−2178 Email: jmamounas@bilzin.com TERMINATED: 04/29/2013

Manoj Gorantla Govindaiah RAICES 5121 Crestway Dr Ste 105 San Antonio, TX 78239−1975 210−226−7722 Fax: 210−212−4856 Email: manoj.govindaiah@raicestexas.org ATTORNEY TO BE NOTICED

Plaintiff
Violene Jean−Pierre on behalf of F.J.P., a minor and all others similarly situated TERMINATED: 06/18/2012

represented by Donald J. Hayden (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Joseph Peter Rindone (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Maria V Morris (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Miriam Fahsi Haskell

Case: 8:12-cv-568 As of: 11/17/2017 12:54 PM EST 3 of 54

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Steven M. Chasin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Tania Galloni (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jody E. Owens, II (See above for address) ATTORNEY TO BE NOTICED

Joseph Mamounas (See above for address) TERMINATED: 04/29/2013

Plaintiff
Brenda Sheffield on behalf of J.D., a minor and all others similarly situated TERMINATED: 11/13/2012

represented by Donald J. Hayden (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Joseph Peter Rindone (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Maria V Morris (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Miriam Fahsi Haskell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Steven M. Chasin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Tania Galloni (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jody E. Owens, II (See above for address) ATTORNEY TO BE NOTICED

Joseph Mamounas (See above for address) TERMINATED: 04/29/2013

Manoj Gorantla Govindaiah (See above for address) ATTORNEY TO BE NOTICED

Case: 8:12-cv-568 As of: 11/17/2017 12:54 PM EST 4 of 54

Plaintiff Lisa Jobe as guardian and on behalf of K.J. a minor
Plaintiff Amy Gage as guardian and on behalf of B.G., a minor

represented by Donald J. Hayden (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joseph Peter Rindone (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Maria V Morris (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Miriam Fahsi Haskell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steven M. Chasin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Tania Galloni (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jody E. Owens, II (See above for address) ATTORNEY TO BE NOTICED
Joseph Mamounas (See above for address) TERMINATED: 04/29/2013
Manoj Gorantla Govindaiah (See above for address) ATTORNEY TO BE NOTICED
represented by Donald J. Hayden (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joseph Peter Rindone (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Maria V Morris (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Miriam Fahsi Haskell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 8:12-cv-568 As of: 11/17/2017 12:54 PM EST 5 of 54

Plaintiff
Crystal Cuyler as guardian and on behalf of D.M., a minor

Steven M. Chasin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Tania Galloni (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jody E. Owens, II (See above for address) ATTORNEY TO BE NOTICED
Joseph Mamounas (See above for address) TERMINATED: 04/29/2013
Manoj Gorantla Govindaiah (See above for address) ATTORNEY TO BE NOTICED
represented by Donald J. Hayden (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joseph Peter Rindone (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Maria V Morris (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Miriam Fahsi Haskell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steven M. Chasin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Tania Galloni (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jody E. Owens, II (See above for address) ATTORNEY TO BE NOTICED
Joseph Mamounas (See above for address) TERMINATED: 04/29/2013
Manoj Gorantla Govindaiah (See above for address)

Case: 8:12-cv-568 As of: 11/17/2017 12:54 PM EST 6 of 54

ATTORNEY TO BE NOTICED

Plaintiff
Michelle Minor as guardian and on behalf of J.P. a minor; on behalf of themselves and all others similarly situated

represented by Donald J. Hayden (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Joseph Peter Rindone (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Maria V Morris (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Miriam Fahsi Haskell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Steven M. Chasin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Tania Galloni (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jody E. Owens, II (See above for address) ATTORNEY TO BE NOTICED

Joseph Mamounas (See above for address) TERMINATED: 04/29/2013

Manoj Gorantla Govindaiah (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Nikeyta Matthews as guardian and on behalf of K.G., a minor

represented by Donald J. Hayden (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Joseph Peter Rindone (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Maria V Morris (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Miriam Fahsi Haskell (See above for address) LEAD ATTORNEY

Case: 8:12-cv-568 As of: 11/17/2017 12:54 PM EST 7 of 54

ATTORNEY TO BE NOTICED

Steven M. Chasin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jody E. Owens, II (See above for address) ATTORNEY TO BE NOTICED

Manoj Gorantla Govindaiah (See above for address) ATTORNEY TO BE NOTICED

Tania Galloni (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Anita Nava as guardian and on behalf of A.H., a minor; on behalf of themselves and all others similarly situated TERMINATED: 11/13/2012

represented by Donald J. Hayden (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joseph Peter Rindone (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Maria V Morris (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Miriam Fahsi Haskell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Steven M. Chasin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jody E. Owens, II (See above for address) ATTORNEY TO BE NOTICED

Manoj Gorantla Govindaiah (See above for address) ATTORNEY TO BE NOTICED

Tania Galloni (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Franky Jean−Pierre

represented by Donald J. Hayden (See above for address) TERMINATED: 04/28/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 8:12-cv-568 As of: 11/17/2017 12:54 PM EST 8 of 54

Joseph Peter Rindone (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Maria V Morris (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Miriam Fahsi Haskell (See above for address) TERMINATED: 04/28/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Steven M. Chasin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Tania Galloni (See above for address) TERMINATED: 11/19/2013 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jody E. Owens, II (See above for address) ATTORNEY TO BE NOTICED

Manoj Gorantla Govindaiah (See above for address) TERMINATED: 04/28/2015 ATTORNEY TO BE NOTICED

Plaintiff
Terrica Hall as guardian and on behalf of T.H., a minor, on behalf of themselves and others similarly situated

represented by Donald J. Hayden (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Joseph Peter Rindone (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Maria V Morris (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Miriam Fahsi Haskell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Steven M. Chasin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Tania Galloni (See above for address)

Case: 8:12-cv-568 As of: 11/17/2017 12:54 PM EST 9 of 54
LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jody E. Owens, II (See above for address) ATTORNEY TO BE NOTICED
Joseph Mamounas (See above for address) TERMINATED: 04/29/2013
Manoj Gorantla Govindaiah (See above for address) ATTORNEY TO BE NOTICED

V. Defendant Polk County Sheriff in his official capacity TERMINATED: 05/21/2012
Defendant Kim Marcum Captain, in her official capacity

represented by Hank B. Campbell Valenti, Campbell, Trohn, Tamayo & Aranda, PA PO Box 2369 Lakeland, FL 33806−2369 863−686−0043 Fax: 863−616−1445 Email: h.campbell@vctta.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jonathan Barnet Trohn Valenti, Campbell, Trohn, Tamayo & Aranda, PA PO Box 2369 Lakeland, FL 33806−2369 863/686−0043 Fax: 863−616−1445 Email: j.trohn@vcttalawyers.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert J. Aranda Valenti, Campbell, Trohn, Tamayo & Aranda, PA PO Box 2369 Lakeland, FL 33806−2369 863/686−0043 Fax: 863/616−1445 Email: r.aranda@vctta.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
William Thompson McKinley William McKinley Law, P.A. P.O. Box 2228 Bartow, FL 33831 863/533−6698 Fax: 863/534−1790 Email: wtm@wmckinleylaw.com ATTORNEY TO BE NOTICED
represented by Hank B. Campbell (See above for address)

Case: 8:12-cv-568 As of: 11/17/2017 12:54 PM EST 10 of 54

TERMINATED: 05/04/2012

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jonathan Barnet Trohn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert J. Aranda (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

William Thompson McKinley (See above for address) ATTORNEY TO BE NOTICED

Defendant
Michael Allen Major, in his official capacity TERMINATED: 05/04/2012

represented by Hank B. Campbell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jonathan Barnet Trohn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert J. Aranda (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

William Thompson McKinley (See above for address) ATTORNEY TO BE NOTICED

Defendant
Grady Judd Polk County Sheriff in his official capacity

represented by Hank B. Campbell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jonathan Barnet Trohn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert J. Aranda (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jennifer Megan Vasquez Valenti, Campbell, Trohn, Tamayo & Aranda, PA PO Box 2369 Lakeland, FL 33806−2369 863/686−0043 Fax: 863/616−1445 Email: j.vasquez@vctta.com ATTORNEY TO BE NOTICED

William Thompson McKinley

Case: 8:12-cv-568 As of: 11/17/2017 12:54 PM EST 11 of 54

(See above for address) ATTORNEY TO BE NOTICED

Defendant Corizon Health, Inc.

represented by Jeanelle G. Bronson Grower, Ketcham, Eide, Telan & Meltz, PA 901 N Lake Destiny Rd − Ste 450 PO Box 538065 Orlando, FL 32853−8065 407/423−9545 Fax: 407/425−7104 Email: enotice@growerketcham.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Patrick H. Telan Grower, Ketcham, Eide, Telan & Meltz, PA 901 N Lake Destiny Rd − Ste 450 PO Box 538065 Orlando, FL 32853−8065 407/423−9545 Ext 6409 Fax: 407/425−7104 Email: enotice@growerketcham.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ramon Vazquez Grower, Ketcham, Eide, Telan & Meltz, PA 901 N Lake Destiny Rd − Ste 450 PO Box 538065 Orlando, FL 32853−8065 407/423−9545 Fax: 407/425−7104 Email: enotice@growerketcham.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jennifer L. Phillips Grower, Ketcham, Rutherford, Bronson, Eide & Telan, PA 901 N Lake Destiny Rd − Ste 450 PO Box 538065 Orlando, FL 32853−8065 407/423−9545 Fax: 407/425−7104 Email: gk@growerketcham.com ATTORNEY TO BE NOTICED

Philip J. Wallace Grower, Ketcham, Eide, Telan & Meltz, PA 901 N Lake Destiny Rd − Ste 450 PO Box 538065 Orlando, FL 32853−8065 407/423−9545 Fax: 407/425−7104 Email: enotice@growerketcham.com ATTORNEY TO BE NOTICED

Interested Party Southern Poverty Law Center

represented by

Case: 8:12-cv-568 As of: 11/17/2017 12:54 PM EST 12 of 54

Jon L. Mills Boies, Schiller & Flexner, LLP Suite 2800 100 SE 2nd St Miami, FL 33131 305/539−8400 Fax: 305/539−1307 Email: jmills@bsfllp.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Samuel Charles Kaplan Boies, Schiller & Flexner, LLP−DC Suite 800 5301 Wisconsin Ave NW Washington, DC 20015−2000 202/514−4686 Email: skaplan@bsfllp.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Stuart Harold Singer Boies, Schiller & Flexner, LLP Suite 1200 401 E Las Olas Blvd Ft Lauderdale, FL 33301 954/356−0011 Fax: 954/356−0022 Email: ssinger@bsfllp.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Interested Party Baker & McKenzie, LLP

represented by Jon L. Mills (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Samuel Charles Kaplan (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Stuart Harold Singer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mediator Peter J. Grilli

represented by Peter John Grilli Peter J. Grilli, PA 3001 W Azeele St Tampa, FL 33609−3138 813/874−1002 Fax: 813/874−1131 Email: peter@grillimediation.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed # Docket Text

Case: 8:12-cv-568 As of: 11/17/2017 12:54 PM EST 13 of 54

03/15/2012 03/15/2012 03/21/2012
03/21/2012 03/21/2012 03/21/2012 03/22/2012 03/22/2012 03/22/2012 04/02/2012
04/02/2012 04/02/2012 04/03/2012 04/05/2012
04/05/2012
04/05/2012
04/05/2012

1 COMPLAINT against Polk County Sheriff (Filing fee $ 350 receipt number TPA10177) filed by Violene Jean−Pierre, Chanda Hughes, Brenda Sheffield. (Attachments: # 1 Civil Cover Sheet)(ARB) (Entered: 03/19/2012)
2 MOTION for Class Certification and Incorporated Memorandum of Law by Chanda Hughes, Violene Jean−Pierre, Brenda Sheffield. (ARB) (Entered: 03/19/2012)
3 AMENDED COMPLAINT with Verification against Polk County Sheriff, Kim Marcum, Michael Allen filed by All Plaintiffs. (Attachments: # 1 Verifications to Amended Complaint, # 2 Summons Grady Judd, # 3 Summons Kim Marcum, # 4 Summons Michael Allen)(Haskell, Miriam) NOTE: Exhibits blank summonses filed in error, Counsel notified, and shall refile with the Clerk of Court. Modified on 3/22/2012 (LD). (Entered: 03/21/2012)
4 MOTION for preliminary injunction by All Plaintiffs. (Haskell, Miriam) (Entered: 03/21/2012)
5 Amended MOTION to certify class and Incorporated Memorandum of Law by All Plaintiffs. (Haskell, Miriam) (Entered: 03/21/2012)
6 Summons issued as to Michael Allen, Kim Marcum, Polk County Sheriff. (EJC) (Entered: 03/22/2012)
7 RETURN of service executed on March 21, 2012 by Lisa Jobe, Brenda Sheffield, Chanda Hughes, Violene Jean−Pierre, Crystal Cuyler, Michelle Minor, Amy Gage as to All Defendants. (Haskell, Miriam) (Entered: 03/22/2012)
***PRO HAC VICE FEES paid and Special Admission Attorney Certification Form filed by attorney Sheila Bedi appearing on behalf of Chanda Hughes (Filing fee $10 receipt number TPA10315.) (JNB) (Entered: 03/22/2012)
8 NOTICE of Appearance by Tania Galloni on behalf of Crystal Cuyler, Amy Gage, Chanda Hughes, Violene Jean−Pierre, Lisa Jobe, Michelle Minor, Brenda Sheffield (Galloni, Tania) Modified on 3/22/2012 (BSN). (Entered: 03/22/2012)
9 NOTICE by Crystal Cuyler, Amy Gage, Chanda Hughes, Violene Jean−Pierre, Lisa Jobe, Michelle Minor, Brenda Sheffield re 5 Amended MOTION to certify class and Incorporated Memorandum of Law (Attachments: # 1 Declarations in Support of Plaintiffs' Amended Motion for Class Certification)(Haskell, Miriam) (Entered: 04/02/2012)
10 NOTICE of Appearance by Donald J. Hayden on behalf of Crystal Cuyler, Amy Gage, Chanda Hughes, Violene Jean−Pierre, Lisa Jobe, Michelle Minor, Brenda Sheffield (Hayden, Donald) (Entered: 04/02/2012)
11 MOTION to expedite Discovery by All Plaintiffs. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Text of Proposed Order)(Hayden, Donald) (Entered: 04/02/2012)
12 NOTICE of Appearance by Joseph Mamounas on behalf of Crystal Cuyler, Amy Gage, Chanda Hughes, Violene Jean−Pierre, Lisa Jobe, Michelle Minor, Brenda Sheffield (Mamounas, Joseph) (Entered: 04/03/2012)
13 NOTICE of Hank B. Campbell, Esquire; Jonathan B. Trohn, Esquire; Robert J. Aranda, Esquire and Appearance by William Thompson McKinley on behalf of Michael Allen, Grady Judd, Kim Marcum, Polk County Sheriff (McKinley, William) (Entered: 04/05/2012)
14 MOTION to strike 4 MOTION for preliminary injunction and Incorporated Memorandum of Law by Michael Allen, Grady Judd, Kim Marcum, Polk County Sheriff. (McKinley, William) Motions referred to Magistrate Judge Mark A. Pizzo. (Entered: 04/05/2012)
15 MOTION to strike 11 MOTION to expedite Discovery by Michael Allen, Grady Judd, Kim Marcum, Polk County Sheriff. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(McKinley, William) Motions referred to Magistrate Judge Mark A. Pizzo. (Entered: 04/05/2012)
16 MOTION for extension of time to file response/reply as to 5 Amended MOTION to certify class and Incorporated Memorandum of Law by Michael Allen, Grady Judd,

Case: 8:12-cv-568 As of: 11/17/2017 12:54 PM EST 14 of 54

04/10/2012 04/10/2012 04/10/2012 04/10/2012 04/10/2012 04/11/2012 04/11/2012 04/11/2012 04/11/2012 04/11/2012 04/12/2012
04/13/2012 04/18/2012 04/19/2012 04/19/2012

Kim Marcum, Polk County Sheriff. (McKinley, William) Motions referred to Magistrate Judge Mark A. Pizzo. (Entered: 04/05/2012)
17 ORDER denying 16 the defendants' motion for an extension of time to respond to the plaintiffs' motion for class certification. Despite the passage of several days since filing the motion, the defendants fail to comply with Local Rule 3.01(g). Signed by Judge Steven D. Merryday on 4/10/2012. (Entered: 04/10/2012)
18 Written designation and consent to act by Tania Galloni on behalf of Crystal Cuyler, Amy Gage, Chanda Hughes, Violene Jean−Pierre, Lisa Jobe, Michelle Minor, Brenda Sheffield. Local Counsel: Tania Galloni. Non−Resident Counsel: Sheila Bedi. (Galloni, Tania) (Entered: 04/10/2012)
19 SUPPLEMENT re 14 MOTION to strike 4 MOTION for preliminary injunction and Incorporated Memorandum of Law by Michael Allen, Grady Judd, Kim Marcum, Polk County Sheriff. (McKinley, William) (Entered: 04/10/2012)
20 MOTION to extend time to Respond to Plaintiffs' Amended Motion for Class Certification by All Defendants. (McKinley, William) (Entered: 04/10/2012)
21 NOTICE of withdrawal of motion by Michael Allen, Grady Judd, Kim Marcum, Polk County Sheriff re 15 MOTION to strike 11 MOTION to expedite Discovery MOTION to strike 11 MOTION to expedite Discovery filed by Michael Allen, Grady Judd, Polk County Sheriff, Kim Marcum. (McKinley, William) (Entered: 04/10/2012)
22 SUPPLEMENT re 4 MOTION for preliminary injunction by Crystal Cuyler, Amy Gage, Chanda Hughes, Violene Jean−Pierre, Lisa Jobe, Michelle Minor, Brenda Sheffield. (Attachments: # 1 Text of Proposed Order)(Galloni, Tania) (Entered: 04/11/2012)
23 RESPONSE in opposition re 14 MOTION to strike 4 MOTION for preliminary injunction and Incorporated Memorandum of Law filed by Crystal Cuyler, Amy Gage, Chanda Hughes, Violene Jean−Pierre, Lisa Jobe, Michelle Minor, Brenda Sheffield. (Galloni, Tania) (Entered: 04/11/2012)
24 MOTION to strike 3 Amended complaint and Incorporated Memorandum of Law by Michael Allen, Grady Judd, Kim Marcum, Polk County Sheriff. (Campbell, Hank) Motions referred to Magistrate Judge Mark A. Pizzo. (Entered: 04/11/2012)
25 MOTION to dismiss Plaintiffs' Verified Amended Complaint−Injunctive Relief Sought by All Defendants. (Campbell, Hank) (Entered: 04/11/2012)
26 RESPONSE to motion re 5 Amended MOTION to certify class and Incorporated Memorandum of Law filed by Michael Allen, Grady Judd, Kim Marcum, Polk County Sheriff. (McKinley, William) (Entered: 04/11/2012)
27 ORDER DENYING 14 Motion to strike the motion for a preliminary injunction, DENYING AS MOOT 2 Motion for class certification, DENYING AS MOOT 15 Motion to strike the plaintiffs motion for expedited discovery, and GRANTING 20 Motion to extend time to respond to the amended motion for class certification. Signed by Judge Steven D. Merryday on 4/12/2012. (TKD) (Entered: 04/12/2012)
28 RESPONSE in opposition re 24 MOTION to strike 3 Amended complaint and Incorporated Memorandum of Law filed by Crystal Cuyler, Amy Gage, Chanda Hughes, Violene Jean−Pierre, Lisa Jobe, Michelle Minor, Brenda Sheffield. (Hayden, Donald) (Entered: 04/13/2012)
29 MOTION for leave to file to File a Reply to Defendants' Response to Plaintiffs' Amended Motion for Class Certification by All Plaintiffs. (Hayden, Donald) (Entered: 04/18/2012)
30 RESPONSE to motion re 11 MOTION to expedite Discovery filed by Grady Judd. (Aranda, Robert) (Entered: 04/19/2012)
31 NOTICE by Crystal Cuyler, Amy Gage, Chanda Hughes, Violene Jean−Pierre, Lisa Jobe, Michelle Minor, Brenda Sheffield re 29 MOTION for leave to file to File a Reply to Defendants' Response to Plaintiffs' Amended Motion for Class Certification (Hayden, Donald) (Entered: 04/19/2012)

Case: 8:12-cv-568 As of: 11/17/2017 12:54 PM EST 15 of 54

04/23/2012
04/23/2012 04/23/2012 04/23/2012 04/25/2012
04/26/2012 04/27/2012 04/30/2012
05/01/2012 05/02/2012
05/03/2012 05/04/2012 05/04/2012
05/04/2012 05/08/2012 05/10/2012 05/10/2012

32 ORDER referring to Magistrate Judge Mark A. Pizzo for a report and recommendation: 4 −−motion for preliminary injunction and 5 −−motion for class certification; referring to Magistrate Judge Mark A. Pizzo for disposition: 11 −−motion for expedited discovery; denying motion to strike; granting 29 −−motion for leave to reply (see order for details). Signed by Judge Steven D. Merryday on 4/23/2012. (BK) (Entered: 04/23/2012)
33 MOTION for leave to file Reply to Defendant's Response to Plaintiffs' Motion for Expedited Discovery by All Plaintiffs. (Hayden, Donald) (Entered: 04/23/2012)
34 MOTION for leave to file to File Supplemental Complaint and to add Plaintiffs K.G. and A.H. by All Plaintiffs. (Attachments: # 1 Supplemental Complaint −− Injunctive Relief Sought)(Haskell, Miriam) (Entered: 04/23/2012)
35 MOTION to certify class −− subclass by All Plaintiffs. (Haskell, Miriam) (Entered: 04/23/2012)
36 SUPPLEMENT re 34 MOTION for leave to file to File Supplemental Complaint and to add Plaintiffs K.G. and A.H. regarding Certificate of Conference by Crystal Cuyler, Amy Gage, Chanda Hughes, Violene Jean−Pierre, Lisa Jobe, Michelle Minor, Brenda Sheffield. (Galloni, Tania) (Entered: 04/25/2012)
37 RESPONSE to motion re 33 MOTION for leave to file Reply to Defendant's Response to Plaintiffs' Motion for Expedited Discovery filed by Grady Judd. (Attachments: # 1 Exhibit Exhibit 1)(Aranda, Robert) (Entered: 04/26/2012)
38 ORDER setting status conference for 5/4/2012 at 01:30 PM in Tampa Courtroom 11 B before Magistrate Judge Mark A. Pizzo. Signed by Magistrate Judge Mark A. Pizzo on 4/27/2012. (DK) (Entered: 04/27/2012)
39 RESPONSE in opposition re 25 MOTION to dismiss Plaintiffs' Verified Amended Complaint−Injunctive Relief Sought filed by Crystal Cuyler, Amy Gage, Chanda Hughes, Violene Jean−Pierre, Lisa Jobe, Michelle Minor, Brenda Sheffield. (Galloni, Tania) (Entered: 04/30/2012)
40 *DOCUMENT TERMINATED. COUNSEL TO REFILE WITH PROPER SIGNATURES.* CASE MANAGEMENT REPORT. (Hayden, Donald) Modified on 5/3/2012 (CD). (Entered: 05/01/2012)
41 SUPPLEMENT re 34 MOTION for leave to file to File Supplemental Complaint and to add Plaintiffs K.G. and A.H., 36 Supplement re: Certificate of Conference by Crystal Cuyler, Amy Gage, Chanda Hughes, Violene Jean−Pierre, Lisa Jobe, Michelle Minor, Brenda Sheffield. (Galloni, Tania) (Entered: 05/02/2012)
42 CASE MANAGEMENT REPORT. (Hayden, Donald) (Entered: 05/03/2012)
43 ORDER granting in part and denying in part 25 −−motion to dismiss; dismissing action against Marcum and Allen; denying the motion otherwise. Signed by Judge Steven D. Merryday on 5/4/2012. (BK) (Entered: 05/04/2012)
44 REPLY to response to motion re 5 Amended MOTION to certify class and Incorporated Memorandum of Law filed by Crystal Cuyler, Amy Gage, Chanda Hughes, Violene Jean−Pierre, Lisa Jobe, Michelle Minor, Brenda Sheffield. (Hayden, Donald) (Entered: 05/04/2012)
45 Minute Entry. Proceedings held before Magistrate Judge Mark A. Pizzo: Status Conference held on 5/4/2012. (digital) (DK) (Entered: 05/04/2012)
46 ORDER regarding the May 4, 2012, status conference. See order for details. Signed by Magistrate Judge Mark A. Pizzo on 5/8/2012. (TJD) (Entered: 05/08/2012)
47 RESPONSE in opposition re 34 MOTION for leave to file to File Supplemental Complaint and to add Plaintiffs K.G. and A.H. filed by Grady Judd. (Campbell, Hank) (Entered: 05/10/2012)
48 RESPONSE to motion re 35 MOTION to certify class −− subclass filed by Grady Judd. (McKinley, William) (Entered: 05/10/2012)

Case: 8:12-cv-568 As of: 11/17/2017 12:54 PM EST 16 of 54

05/15/2012
05/15/2012 05/17/2012 05/17/2012 05/18/2012 05/19/2012 05/21/2012 05/21/2012 05/21/2012 05/23/2012
05/23/2012
06/04/2012 06/05/2012
06/06/2012

49 MOTION to compel by Crystal Cuyler, Amy Gage, Chanda Hughes, Violene Jean−Pierre, Lisa Jobe, Michelle Minor, Brenda Sheffield. (Attachments: # 1 Exhibit (Defendants' Response to Request for Production), # 2 Exhibit (Declaration of Randall C. Berg), # 3 Exhibit (Declaration of Paul DeMuro), # 4 Exhibit (Defendant's Detention Directive 2.2), # 5 Exhibit (Florida Model Jail Standards), # 6 Exhibit (Defendant's Detention Directive 3.1), # 7 Exhibit (Parties' Expert Inspection Protocol))(Galloni, Tania) Motions referred to Magistrate Judge Mark A. Pizzo. (Entered: 05/15/2012)
50 SUPPLEMENT re 49 MOTION to compel by Crystal Cuyler, Amy Gage, Chanda Hughes, Violene Jean−Pierre, Lisa Jobe, Michelle Minor, Brenda Sheffield. (Galloni, Tania) (Entered: 05/15/2012)
51 ORDER granting in part 34 −−motion re complaint; second amended complaint due 5/30/2012 nunc pro tunc to 4/23/2012; referring to Magistrate Judge Mark A. Pizzo for a report and recommendation: 35 −−motion for certification of a sub−class. Signed by Judge Steven D. Merryday on 5/17/2012. (BK) (Entered: 05/17/2012)
52 NOTICE of Telephone Conference re: 49 MOTION to compel, 50 Supplement Telephone Conference set for 5/21/2012 at 09:30 AM in Tampa Courtroom 11 B before Magistrate Judge Mark A. Pizzo. (DK) (Entered: 05/17/2012)
53 AMENDED COMPLAINT (Second Amended Complaint) against Grady Judd, Polk County Sheriff, Corizon Health, Inc. filed by All Plaintiffs.(Galloni, Tania) (Entered: 05/18/2012)
54 RESPONSE in opposition re 49 MOTION to compel filed by Grady Judd. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(Campbell, Hank) (Entered: 05/19/2012)
55 Minute Entry. Proceedings held before Magistrate Judge Mark A. Pizzo: Telephone Conference on Plaintiffs' motion to compel (doc. 49) held on 5/21/2012. (digital) (DK) (Entered: 05/21/2012)
56 ORDER granting 49 Motion to compel. Signed by Magistrate Judge Mark A. Pizzo on 5/21/2012. (DK) (Entered: 05/21/2012)
57 Summons issued as to Corizon Health, Inc. (DMS) (Entered: 05/21/2012)
58 TRANSCRIPT of Status Conference held on May 4, 2012 before Judge Mark A. Pizzo. Court Reporter/Transcriber Bill Jones,Telephone number 813−301−5024. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER or purchased through the Court Reporter. Redaction Request due 6/13/2012, Redacted Transcript Deadline set for 6/25/2012, Release of Transcript Restriction set for 8/21/2012. (HWJ) (Entered: 05/23/2012)
59 NOTICE to counsel of filing of OFFICIAL TRANSCRIPT. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days. Any party needing a copy of the transcript to review for redaction purposes may purchase a copy from the court reporter or view the document at the clerk's office public terminal. Court Reporter: Bill Jones (HWJ) (Entered: 05/23/2012)
60 ANSWER and affirmative defenses with Jury Demand to 53 Amended complaint by Grady Judd.(Campbell, Hank) (Entered: 06/04/2012)
61 CASE MANAGEMENT AND SCHEDULING ORDER: Joinder of Parties due by 9/4/2012, Discovery due by 1/15/2013, Dispositive motions due by 1/30/2013, Pretrial Conference set for 4/4/2013 at 10:00 AM in Tampa Courtroom 11 B before Magistrate Judge Mark A. Pizzo, Bench Trial set for the May, 2013, trial term in Tampa Courtroom 15 A before Judge Steven D. Merryday. Signed by Judge Steven D. Merryday on 6/5/2012. (TKD) (Entered: 06/05/2012)
62 ORDER REFERRING CASE to mediation before Peter J. Grilli. Lead counsel Tania Galloni to coordinate dates and file notice of mediation within 20 days. Mediation shall be conducted on or before July 9, 2012. Signed by Judge Steven D. Merryday on

Case: 8:12-cv-568 As of: 11/17/2017 12:54 PM EST 17 of 54

06/11/2012 06/12/2012 06/13/2012 06/14/2012
06/14/2012
06/14/2012 06/14/2012 06/14/2012 06/14/2012 06/15/2012 06/15/2012
06/15/2012
06/18/2012 06/18/2012 06/18/2012 06/18/2012

6/6/2012. (TKD) (Entered: 06/06/2012)
63 DOCUMENT TERMINATED. COUNSEL TO REFILE USING PROPER EVENT CODE. Unopposed MOTION for extension of time to file response/reply as to 53 Amended complaint by Corizon Health, Inc.. (Vazquez, Ramon) Motions referred to Magistrate Judge Mark A. Pizzo. Modified on 6/12/2012 (CD). (Entered: 06/11/2012)
64 Unopposed MOTION for extension of time to file answer or otherwise plead re 53 Amended complaint by Corizon Health, Inc.. (Vazquez, Ramon) (Entered: 06/12/2012)
65 NOTICE of Voluntary Dismissal as to Plaintiff A.H., only, by Anita Nava (Galloni, Tania) (Entered: 06/13/2012)
66 Written designation and consent to act by Donald J. Hayden on behalf of Crystal Cuyler, Amy Gage, Chanda Hughes, Violene Jean−Pierre, Lisa Jobe, Nikeyta Matthews, Michelle Minor, Anita Nava, Brenda Sheffield. Local Counsel: Donald Hayden. Non−Resident Counsel: Joseph P. Rindone. (Hayden, Donald) (Entered: 06/14/2012)
67 Written designation and consent to act by Donald J. Hayden on behalf of Crystal Cuyler, Amy Gage, Chanda Hughes, Violene Jean−Pierre, Lisa Jobe, Nikeyta Matthews, Michelle Minor, Anita Nava, Brenda Sheffield. Local Counsel: Donald Hayden. Non−Resident Counsel: Steven M. Chasin. (Hayden, Donald) (Entered: 06/14/2012)
68 Unopposed MOTION to substitute party by Violene Jean−Pierre. (Galloni, Tania) (Entered: 06/14/2012)
69 NOTICE of Appearance Appearance by Patrick H. Telan on behalf of Corizon Health, Inc. (Telan, Patrick) (Entered: 06/14/2012)
70 NOTICE of Appearance Appearance by Patrick H. Telan on behalf of Corizon Health, Inc. (Telan, Patrick) (Entered: 06/14/2012)
71 MOTION to extend time to complete mediation by Crystal Cuyler, Amy Gage, Chanda Hughes, Violene Jean−Pierre, Lisa Jobe, Nikeyta Matthews, Michelle Minor, Brenda Sheffield. (Attachments: # 1 Text of Proposed Order)(Galloni, Tania) (Entered: 06/14/2012)
72 RESPONSE to motion re 71 MOTION to extend time to complete mediation and Objection to Early Mediation filed by Corizon Health, Inc.. (Vazquez, Ramon) (Entered: 06/15/2012)
***PRO HAC VICE FEES paid and Special Admission Attorney Certification Form filed by attorney Joseph P. Rindone appearing on behalf of Crystal Cuyler, Amy Gage, Chanda Hughes, Franky Jean−Pierre, Lisa Jobe, Nikeyta Matthews, Michelle Minor, Anita Nava, Brenda Sheffield (Filing fee $10 receipt number TPA11732.) (JNB) (Entered: 06/18/2012)
***PRO HAC VICE FEES paid and Special Admission Attorney Certification Form filed by attorney Steven M. Chasin appearing on behalf of Crystal Cuyler, Amy Gage, Chanda Hughes, Franky Jean−Pierre, Lisa Jobe, Nikeyta Matthews, Michelle Minor, Anita Nava, Brenda Sheffield (Filing fee $10 receipt number TPA11732.) (JNB) (Entered: 06/18/2012)
73 ENDORSED ORDER granting 64 Corizon Health's motion for an extension until June 22, 2012, of the time to respond to the second amended complaint. Signed by Judge Steven D. Merryday on 6/18/2012. (Entered: 06/18/2012)
74 ENDORSED ORDER granting 68 the motion of Violene Jean−Pierre to substitute Franky Jean−Pierre, who has achieved majority, as the plaintiff. Violene Jean−Pierre is dismisssed. Signed by Judge Steven D. Merryday on 6/18/2012. (Entered: 06/18/2012)
75 ORDER denying 71 −−motion to extend the mediation deadline. Signed by Judge Steven D. Merryday on 6/18/2012. (BK) (Entered: 06/18/2012)
76 *DOCUMENT TERMINATED. COUNSEL IS FLORIDA RESIDENT, MEMBER OF FLORIDA BAR.* Written designation and consent to act by Donald J. Hayden on

Case: 8:12-cv-568 As of: 11/17/2017 12:54 PM EST 18 of 54

06/19/2012
06/22/2012 06/25/2012 06/25/2012 06/27/2012 06/27/2012 06/28/2012 06/28/2012
07/05/2012
07/05/2012 07/09/2012
07/09/2012 07/10/2012 07/19/2012

behalf of Crystal Cuyler, Amy Gage, Chanda Hughes, Franky Jean−Pierre, Violene Jean−Pierre, Lisa Jobe, Nikeyta Matthews, Michelle Minor, Anita Nava, Brenda Sheffield. Local Counsel: Donald Hayden. Non−Resident Counsel: Angela C. Vigil. (Hayden, Donald) Modified on 6/19/2012 (CD). (Entered: 06/18/2012)
***PRO HAC VICE FEES paid and Special Admission Attorney Certification Form filed by attorney Angela C.Vigil appearing on behalf of Crystal Cuyler, Amy Gage, Chanda Hughes, Franky Jean−Pierre, Lisa Jobe, Nikeyta Matthews, Michelle Minor, Anita Nava, Brenda Sheffield (Filing fee $10 receipt number TPA11817.) (JNB) (Entered: 06/19/2012)
77 MOTION to dismiss Plaintiff's 2nd Amended Complaint by Corizon Health, Inc.. (Bronson, Jeanelle) (Entered: 06/22/2012)
78 NOTICE of mediation conference/hearing to be held on July 6, 2012 @ 9:30 a.m. before Peter J. Grilli, Esq. (Grilli, Peter) (Entered: 06/25/2012)
79 NOTICE of mediation conference/hearing to be held on July 6, 2012, at 9:30 AM (All Day), before Peter J. Grilli, Esq. (Galloni, Tania) (Entered: 06/25/2012)
80 NOTICE of pendency of related cases re 61 Case management and scheduling order per Local Rule 1.04(d) by Corizon Health, Inc.. Related case(s): yes (Telan, Patrick) (Entered: 06/27/2012)
81 CERTIFICATE of interested persons and corporate disclosure statement re 61 Case management and scheduling order by Corizon Health, Inc.. (Telan, Patrick) (Entered: 06/27/2012)
82 Minute Entry. Proceedings held before Magistrate Judge Mark A. Pizzo: Status Conference held on 6/28/2012. (digital) Court Reporter: Sherrill L. Jackson (DK) (Entered: 06/28/2012)
83 ORDER Setting Evidentiary Hearing on motion for preliminary injunction for 9/10/2012 at 09:00 AM in Tampa Courtroom 11 B before Magistrate Judge Mark A. Pizzo., Telephone Conference set for 8/21/2012 at 10:00 AM before Magistrate Judge Mark A. Pizzo. Signed by Magistrate Judge Mark A. Pizzo on 6/28/2012. (DK) (Entered: 06/28/2012)
84 MOTION to compel Better Answers to Discovery Requests by All Plaintiffs. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O, # 16 Exhibit P)(Hayden, Donald) Motions referred to Magistrate Judge Mark A. Pizzo. EXHIBIT BE HAS BEEN DELETED BY THE CLERK. PLEASE REFER TO DOCUMENT #58 TO VIEW TRANSCRIPT. Modified on 7/6/2012 (CD). (Entered: 07/05/2012)
85 MOTION to compel the Deposition of Sheriff Grady Judd by All Plaintiffs. (Hayden, Donald) Motions referred to Magistrate Judge Mark A. Pizzo. (Entered: 07/05/2012)
86 Unopposed MOTION for extension of time to file response/reply to Defendant Corizon's Motion to Dismiss by Crystal Cuyler, Amy Gage, Chanda Hughes, Franky Jean−Pierre, Lisa Jobe, Nikeyta Matthews, Michelle Minor, Anita Nava, Brenda Sheffield. (Attachments: # 1 Text of Proposed Order Granting Plaintiffs' Unopposed Motion for Extension of Time to Respond to Defendant Corizon's Motion to Dismiss)(Haskell, Miriam) Motions referred to Magistrate Judge Mark A. Pizzo. (Entered: 07/09/2012)
87 MEDIATION REPORT Hearing held on July 6, 2012. Hearing outcome: the parties have reached an impasse.(Grilli, Peter) (Entered: 07/09/2012)
88 ENDORSED ORDER granting 86 −−motion to extend to 7/19/2012 the time within which to respond to 77 −−Corizon's motion to dismiss. Signed by Judge Steven D. Merryday on 7/10/2012. (BK) (Entered: 07/10/2012)
89 RESPONSE in opposition re 77 MOTION to dismiss Plaintiff's 2nd Amended Complaint filed by Crystal Cuyler, Amy Gage, Chanda Hughes, Franky Jean−Pierre, Lisa Jobe, Nikeyta Matthews, Michelle Minor, Anita Nava, Brenda Sheffield.

Case: 8:12-cv-568 As of: 11/17/2017 12:54 PM EST 19 of 54

07/23/2012 07/23/2012 07/23/2012 07/24/2012
07/25/2012 07/25/2012 07/26/2012 07/26/2012 07/27/2012 07/28/2012
07/31/2012
07/31/2012 08/03/2012 08/03/2012 08/03/2012
08/03/2012

(Haskell, Miriam) (Entered: 07/19/2012)
90 Unopposed MOTION for extension of time to file response/reply as to 84 MOTION to compel Better Answers to Discovery Requests by Grady Judd. (Campbell, Hank) Motions referred to Magistrate Judge Mark A. Pizzo. (Entered: 07/23/2012)
91 RESPONSE in opposition re 85 MOTION to compel the Deposition of Sheriff Grady Judd filed by Grady Judd. (Campbell, Hank) (Entered: 07/23/2012)
92 MOTION for leave to file Reply to Pltf's Response in Oppositon to Def Corizon's Motion to Dismiss by Corizon Health, Inc.. (Vazquez, Ramon) (Entered: 07/23/2012)
93 STIPULATION Protective Order by Michael Allen, Corizon Health, Inc., Crystal Cuyler, Amy Gage, Peter J. Grilli, Chanda Hughes, Franky Jean−Pierre, Violene Jean−Pierre, Lisa Jobe, Grady Judd, Kim Marcum, Nikeyta Matthews, Michelle Minor, Anita Nava, Polk County Sheriff, Brenda Sheffield. (Hayden, Donald) (Entered: 07/24/2012)
94 Unopposed MOTION for extension of time to file response/reply to Plaintiff's June 25, 2012 First Request to Produce to Corizon by Corizon Health, Inc.. (Vazquez, Ramon) Motions referred to Magistrate Judge Mark A. Pizzo. (Entered: 07/25/2012)
95 RESPONSE in opposition re 84 MOTION to compel Better Answers to Discovery Requests filed by Grady Judd. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Campbell, Hank) (Entered: 07/25/2012)
96 ENDORSED ORDER granting nunc pro tunc 90 Motion for extension of time to file responseto Plaintiff's motion to compel by June 25, 2012. Signed by Magistrate Judge Mark A. Pizzo on 7/26/2012. (DK) (Entered: 07/26/2012)
97 ENDORSED ORDER denying 92 Corizon's motion for leave to file a reply. Signed by Judge Steven D. Merryday on 7/26/2012. (Entered: 07/26/2012)
98 ORDER permitting K.G. and Corizon to submit by 8/7/2012 a supplemental paper. Signed by Judge Steven D. Merryday on 7/27/2012. (BK) (Entered: 07/27/2012)
99 AMENDED DOCUMENT by Crystal Cuyler, Amy Gage, Chanda Hughes, Franky Jean−Pierre, Lisa Jobe, Nikeyta Matthews, Michelle Minor, Brenda Sheffield. Amendment to 89 Response in opposition to motion. (Galloni, Tania) (Entered: 07/28/2012)
100 NOTICE by Crystal Cuyler, Amy Gage, Chanda Hughes, Franky Jean−Pierre, Lisa Jobe, Nikeyta Matthews, Michelle Minor, Brenda Sheffield re 35 MOTION to certify class −− subclass , Notice of Filing Supplemental Certificate of Service (Galloni, Tania) (Entered: 07/31/2012)
101 MOTION for leave to file Reply to Defendant's Response in Oppositon to Plaintiffs' Motion to Compel the Deposition of Sheriff Judd by All Plaintiffs. (Rindone, Joseph) (Entered: 07/31/2012)
102 ORDER denying 85 Motion to compel deposition of Sheriff Grady Judd. Signed by Magistrate Judge Mark A. Pizzo on 8/3/2012. (DK) (Entered: 08/03/2012)
103 ENDORSED ORDER denying 84 Plaintiffs' Motion to compel better answers to discovery requests. Signed by Magistrate Judge Mark A. Pizzo on 8/3/2012. (DK) (Entered: 08/03/2012)
104 TRANSCRIPT of Status Conference held on 6/28/12 before Judge Mark A. Pizzo. Court Reporter Sherrill L. Jackson, RPR, FPR,Telephone number 813/301−5041. Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER or purchased through the Court Reporter. Redaction Request due 8/24/2012, Redacted Transcript Deadline set for 9/4/2012, Release of Transcript Restriction set for 11/1/2012. (SJ) (Entered: 08/03/2012)
105 NOTICE to counsel of filing of OFFICIAL TRANSCRIPT. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days. Any

Case: 8:12-cv-568 As of: 11/17/2017 12:54 PM EST 20 of 54

08/07/2012 08/07/2012 08/08/2012 08/08/2012 08/08/2012 08/09/2012 08/10/2012 08/13/2012 08/13/2012 08/13/2012 08/13/2012 08/13/2012
08/14/2012

party needing a copy of the transcript to review for redaction purposes may purchase a copy from the court reporter or view the document at the clerk's office public terminal. Court Reporter: Sherrill L. Jackson (SJ) (Entered: 08/03/2012)
106 MEMORANDUM in support re 98 Order Allowing Corizon to Submit Supplemental Memoranda in Support of its Motion to Dismiss filed by Corizon Health, Inc.. (Vazquez, Ramon) Modified on 8/8/2012, NOTE: DOCUMENT TERMINATED, IMAGE DELETED, counsel notified Clerk's Office that they will refile a redacted version of Memorandum (EJC). (Entered: 08/07/2012)
107 SUPPLEMENT re 98 Order by Crystal Cuyler, Amy Gage, Chanda Hughes, Franky Jean−Pierre, Lisa Jobe, Nikeyta Matthews, Michelle Minor, Brenda Sheffield. (Attachments: # 1 Exhibit Declaration of K.G., # 2 Exhibit Declarations of B.G., D.M., J.B., J.D., J.P., K.J.)(Galloni, Tania) (Entered: 08/07/2012)
108 SUPPLEMENT re 98 Order Defendant Corizon's Supplemental Memorandum in Support of its Motion to Dismiss by Corizon Health, Inc.. (Vazquez, Ramon) (Entered: 08/08/2012)
109 Unopposed MOTION for leave to file Affidavit in Support of Supplemental Memorandum (Doc. #108) by Corizon Health, Inc.. (Vazquez, Ramon) (Entered: 08/08/2012)
110 Unopposed MOTION for leave to file Additional Evidence Referenced in Plaintiffs' Supplement Regarding Exhaustion by Crystal Cuyler, Amy Gage, Chanda Hughes, Franky Jean−Pierre, Violene Jean−Pierre, Lisa Jobe, Nikeyta Matthews, Michelle Minor, Brenda Sheffield. (Galloni, Tania) (Entered: 08/08/2012)
111 NOTICE of Appearance by Philip J. Wallace on behalf of Corizon Health, Inc. (Wallace, Philip) (Entered: 08/09/2012)
112 ENDORSED ORDER granting 94 Motion for extension of time to file response to Plaintiff's first request for production. Signed by Magistrate Judge Mark A. Pizzo on 8/10/2012. (DK) (Entered: 08/10/2012)
113 ORDER denying 77 −−motion to dismiss except that the Eighth Amendment portion of Count 4 is dismissed; referring to Magistrate Judge Mark A. Pizzo for a report and recommendation: the matter of K.G.'s exhaustion of her administrative remedy; granting Docs. 109 and 110 −−motions to submit documents. Signed by Judge Steven D. Merryday on 8/13/2012. (BK) (Entered: 08/13/2012)
114 NOTICE by Corizon Health, Inc. re 108 Supplement (Notice of Filing Affidavit of Deputy Jill Carlson) (Attachments: # 1 Affidavit of Deputy Jill Carlson)(Vazquez, Ramon) (Entered: 08/13/2012)
115 Unopposed MOTION for leave to file under seal Photographs of Polk County Jail Taken During Plaintiffs' Expert Inspection by Crystal Cuyler, Amy Gage, Chanda Hughes, Franky Jean−Pierre, Lisa Jobe, Nikeyta Matthews, Michelle Minor, Anita Nava, Brenda Sheffield. (Haskell, Miriam) (Entered: 08/13/2012)
116 **TERMINATED. REFILED WITH ATTACHMENTS AT DKT. 117.**PLAINTIFF'S BRIEF re 4 MOTION for preliminary injunction filed by Crystal Cuyler, Amy Gage, Chanda Hughes, Franky Jean−Pierre, Lisa Jobe, Nikeyta Matthews, Michelle Minor, Brenda Sheffield. (Galloni, Tania) Modified on 8/14/2012 (DMS). (Entered: 08/13/2012)
117 PLAINTIFF'S BRIEF re 4 MOTION for preliminary injunction filed by Crystal Cuyler, Amy Gage, Chanda Hughes, Franky Jean−Pierre, Lisa Jobe, Nikeyta Matthews, Michelle Minor, Brenda Sheffield. (Attachments: # 1 Exhibit #1 (Incident Reports − 1 of 3), # 2 Exhibit #1 (Incident Reports − 2 of 3), # 3 Exhibit #1 (Incident Reports − 3 of 3), # 4 Exhibit # 2 (Sworn Statements), # 5 Exhibit # 3 (Expert Report Paul DeMuro 1 of 4), # 6 Exhibit # 3 (Expert Report Paul DeMuro 2 of 4), # 7 Exhibit # 3 (Expert Report Paul DeMuro 3 of 4), # 8 Exhibit # 3 (Expert Report Paul DeMuro 4 of 4), # 9 Exhibit #4 Expert Report Daphne Glindmeyer)(Galloni, Tania) (Entered: 08/14/2012)
118 RESPONSE in opposition re 35 MOTION to certify class −− subclass filed by Corizon Health, Inc.. (Attachments: # 1 Exhibit Depo Excerpt of Nikeyta

Case: 8:12-cv-568 As of: 11/17/2017 12:54 PM EST 21 of 54

08/15/2012
08/15/2012 08/16/2012 08/16/2012 08/16/2012 08/17/2012 08/17/2012 08/20/2012
08/20/2012 08/21/2012 08/21/2012 08/22/2012

Matthews)(Bronson, Jeanelle) (Entered: 08/14/2012)
119 NOTICE by Crystal Cuyler, Amy Gage, Chanda Hughes, Franky Jean−Pierre, Lisa Jobe, Nikeyta Matthews, Michelle Minor, Brenda Sheffield re 107 Supplement, 113 Order on motion to dismissOrder on motion for leave to file Notice of Filing Documents (Attachments: # 1 Exhibit Polk County Sheriff's Office written grievance policy, # 2 Exhibit Deposition Excerpt, Deputy Joseph Choquette, # 3 Exhibit Deposition Excerpt, Deputy Jessica Cranor, # 4 Exhibit Deposition Excerpt, Deputy Jacques Franklin, # 5 Exhibit Deposition Excerpt, Sergeant Alvin Mitchell)(Galloni, Tania) (Entered: 08/15/2012)
120 Unopposed MOTION for protective order (HIPAA Qualified Protective Order) by Corizon Health, Inc.. (Vazquez, Ramon) Motions referred to Magistrate Judge Mark A. Pizzo. (Entered: 08/15/2012)
121 MOTION for disclosure Motion for Order Authorizing Disclosure of Confidential Information of Juveniles by Grady Judd, Polk County Sheriff. (McKinley, William) Motions referred to Magistrate Judge Mark A. Pizzo. (Entered: 08/16/2012)
122 MOTION for leave to file Reply to Corizon's Response in Opposition to Plaintiffs' Motion to Certify Sub−Class by Crystal Cuyler, Amy Gage, Chanda Hughes, Franky Jean−Pierre, Lisa Jobe, Nikeyta Matthews, Michelle Minor, Brenda Sheffield. (Galloni, Tania) (Entered: 08/16/2012)
123 NOTICE of Hearing: Telephonic Status Conference set for 8/21/2012 at 10:00 AM in Tampa Courtroom 11 B before Magistrate Judge Mark A. Pizzo. See new instructions on Notice regarding participating in telephonic conference. (DK) (Entered: 08/16/2012)
124 RESPONSE to motion re 121 MOTION for disclosure Motion for Order Authorizing Disclosure of Confidential Information of Juveniles filed by Crystal Cuyler, Amy Gage, Chanda Hughes, Franky Jean−Pierre, Lisa Jobe, Nikeyta Matthews, Michelle Minor, Brenda Sheffield. (Galloni, Tania) (Entered: 08/17/2012)
125 SUPPLEMENT re 121 MOTION for disclosure Motion for Order Authorizing Disclosure of Confidential Information of Juveniles by Grady Judd, Polk County Sheriff. (McKinley, William) (Entered: 08/17/2012)
126 MOTION to compel by Crystal Cuyler, Amy Gage, Chanda Hughes, Franky Jean−Pierre, Lisa Jobe, Nikeyta Matthews, Michelle Minor, Brenda Sheffield. (Attachments: # 1 Exhibit July 13, 2012 Agreement to Extend Response Time, # 2 Exhibit Correspondence Regarding Outstanding Discovery Issues, # 3 Exhibit Correspondence Regarding Deposition and Report of Gary DeLand, # 4 Exhibit Service of Plaintiffs' Expert Reports, # 5 Exhibit Excerpt of Deposition, Sergeant Alvin Mitchell, # 6 Exhibit Excerpt of Deposition, Captain Kimberly Marcum)(Galloni, Tania) Motions referred to Magistrate Judge Mark A. Pizzo. (Entered: 08/20/2012)
127 MOTION to withdraw Plaintiff J.B. (Unopposed by Defendant Grady Judd), MOTION for joinder T.H. (Unopposed by Defendant Grady Judd) by Crystal Cuyler, Amy Gage, Chanda Hughes, Franky Jean−Pierre, Lisa Jobe, Nikeyta Matthews, Michelle Minor, Brenda Sheffield. (Haskell, Miriam) Motions referred to Magistrate Judge Mark A. Pizzo. (Entered: 08/20/2012)
128 SUPPLEMENT re 126 MOTION to compel by Crystal Cuyler, Amy Gage, Chanda Hughes, Franky Jean−Pierre, Lisa Jobe, Nikeyta Matthews, Michelle Minor, Brenda Sheffield. (Galloni, Tania) (Entered: 08/21/2012)
129 Minute Entry. Proceedings held before Magistrate Judge Mark A. Pizzo: granting 120 Motion for protective order; granting 121 Motion for disclosure; granting 122 Motion for leave to file; Telephone Conference held on 8/21/2012. (digital) (DK) (Entered: 08/21/2012)
130 RESPONSE to motion re 127 MOTION to withdraw Plaintiff J.B. (Unopposed by Defendant Grady Judd) MOTION for joinder T.H. (Unopposed by Defendant Grady Judd) MOTION to withdraw Plaintiff J.B. (Unopposed by Defendant Grady Judd) MOTION for joinder T.H. (Unopposed by Defendant Grady Judd) filed by Corizon Health, Inc.. (Attachments: # 1 Exhibit A)(Vazquez, Ramon) (Entered: 08/22/2012)

Case: 8:12-cv-568 As of: 11/17/2017 12:54 PM EST 22 of 54

08/23/2012
08/23/2012 08/24/2012
08/25/2012 08/27/2012 08/27/2012 08/27/2012 08/28/2012 08/28/2012
08/29/2012 08/29/2012 08/30/2012 09/04/2012 09/04/2012

131 SUPPLEMENT re 127 MOTION to withdraw Plaintiff J.B. (Unopposed by Defendant Grady Judd) MOTION for joinder T.H. (Unopposed by Defendant Grady Judd) MOTION to withdraw Plaintiff J.B. (Unopposed by Defendant Grady Judd) MOTION for joinder T.H. (Unopposed by Defendant Grady Judd) by Crystal Cuyler, Amy Gage, Chanda Hughes, Franky Jean−Pierre, Lisa Jobe, Nikeyta Matthews, Michelle Minor, Brenda Sheffield. (Galloni, Tania) (Entered: 08/23/2012)
132 Unopposed MOTION for protective order HIPAA Qualified and Order to Disclose Protected Health Information by Corizon Health, Inc.. (Wallace, Philip) Motions referred to Magistrate Judge Mark A. Pizzo. (Entered: 08/23/2012)
133 RESPONSE in opposition re 127 MOTION to withdraw Plaintiff J.B. (Unopposed by Defendant Grady Judd) MOTION for joinder T.H. (Unopposed by Defendant Grady Judd) MOTION to withdraw Plaintiff J.B. (Unopposed by Defendant Grady Judd) MOTION for joinder T.H. (Unopposed by Defendant Grady Judd) filed by Grady Judd, Polk County Sheriff. (Attachments: # 1 Exhibit "A")(McKinley, William) (Entered: 08/24/2012)
134 REPLY to response to motion re 35 MOTION to certify class −− subclass filed by Crystal Cuyler, Amy Gage, Chanda Hughes, Franky Jean−Pierre, Lisa Jobe, Nikeyta Matthews, Michelle Minor, Brenda Sheffield. (Galloni, Tania) (Entered: 08/25/2012)
135 Written designation and consent to act by Tania Galloni on behalf of Crystal Cuyler, Amy Gage, Franky Jean−Pierre, Lisa Jobe, Nikeyta Matthews, Michelle Minor, Brenda Sheffield. Local Counsel: Tania Galloni. Non−Resident Counsel: Jody E. Owens, II. (Galloni, Tania) (Entered: 08/27/2012)
136 ***STRICKEN, Attorney instructed to re−file with correct signature*** RESPONSE in opposition re 4 MOTION for preliminary injunction Defendant Judd's Brief in Opposition to Plaintiffs' Motion for Preliminary Injunction filed by Grady Judd. (Aranda, Robert) Modified on 8/28/2012 (RVB). (Entered: 08/27/2012)
137 MOTION for leave to file Third Amended Complaint, MOTION to certify class by Crystal Cuyler, Amy Gage, Franky Jean−Pierre, Lisa Jobe, Nikeyta Matthews, Michelle Minor, Brenda Sheffield. (Attachments: # 1 Exhibit Proposed Third Amended Complaint)(Galloni, Tania) (Entered: 08/27/2012)
138 RESPONSE in opposition re 4 MOTION for preliminary injunction Defendant Judd's Brief in Opposition to Plaintiffs' Motion for Preliminary Injunction filed by Grady Judd. (Campbell, Hank) (Entered: 08/28/2012)
***PRO HAC VICE FEES paid and Special Admission Attorney Certification Form filed by attorney Jody E. Owens II appearing on behalf of Crystal Cuyler, Amy Gage, Chanda Hughes, Franky Jean−Pierre, Lisa Jobe, Nikeyta Matthews, Michelle Minor, Brenda Sheffield (Filing fee $10.00 receipt number TPA12980.) (AG) (Entered: 08/30/2012)
139 ANSWER and affirmative defenses with Jury Demand to 53 Amended complaint by Corizon Health, Inc..(Wallace, Philip) (Entered: 08/29/2012)
140 SUPPLEMENT re 137 MOTION for leave to file Third Amended Complaint MOTION to certify class by Crystal Cuyler, Amy Gage, Franky Jean−Pierre, Lisa Jobe, Nikeyta Matthews, Michelle Minor, Brenda Sheffield. (Galloni, Tania) (Entered: 08/29/2012)
141 ENDORSED ORDER granting 132 Agreed HIPAA Qualified Protective Order and Order to Disclose Protected Health Information. Signed by Magistrate Judge Mark A. Pizzo on 8/30/2012. (DK) (Entered: 08/30/2012)
142 NOTICE by Crystal Cuyler, Amy Gage, Franky Jean−Pierre, Lisa Jobe, Nikeyta Matthews, Michelle Minor, Brenda Sheffield re 117 Brief − Plaintiff (Attachments: # 1 Exhibit Rebuttal Report of Plaintiffs' Expert Paul DeMuro)(Galloni, Tania) (Entered: 09/04/2012)
143 Unopposed MOTION for miscellaneous relief, specifically Transport Plaintiff B.G. by Crystal Cuyler, Amy Gage, Franky Jean−Pierre, Lisa Jobe, Nikeyta Matthews, Michelle Minor, Brenda Sheffield. (Galloni, Tania) (Entered: 09/04/2012)

Case: 8:12-cv-568 As of: 11/17/2017 12:54 PM EST 23 of 54

09/05/2012
09/06/2012 09/06/2012 09/06/2012 09/06/2012 09/06/2012 09/06/2012 09/07/2012 09/07/2012 09/07/2012 09/07/2012 09/10/2012 09/10/2012 09/11/2012 09/11/2012 09/11/2012
09/12/2012 09/13/2012

144 NOTICE by Crystal Cuyler, Amy Gage, Franky Jean−Pierre, Lisa Jobe, Nikeyta Matthews, Michelle Minor, Brenda Sheffield re 143 Unopposed MOTION for miscellaneous relief, specifically Transport Plaintiff B.G. (Attachments: # 1 Text of Proposed Order)(Galloni, Tania) (Entered: 09/05/2012)
145 RESPONSE in opposition re 137 MOTION for leave to file Third Amended Complaint MOTION to certify class filed by Corizon Health, Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Vazquez, Ramon) (Entered: 09/06/2012)
146 Joint MOTION to allow electronic equipment, specifically Cellular Phones, Ipads, Smart Phones, Laptop Computers by All Parties. (Attachments: # 1 Text of Proposed Order)(Hayden, Donald) (Entered: 09/06/2012)
147 Unopposed MOTION for miscellaneous relief, specifically to transport B.G. and D.M. by Grady Judd. (Attachments: # 1 Text of Proposed Order Order to Transport)(Aranda, Robert) (Entered: 09/06/2012)
148 ENDORSED ORDER granting 143 Motion to transport Plaintiff B.G. from the Polk County Jail to the Courthouse for the purpose of testifying at the Courts evidentiary hearing on Plaintiffs Motion for a Preliminary Injunction (DK) (Entered: 09/06/2012)
149 ORDER granting 146 Motion to allow electronic equipment. Signed by Magistrate Judge Mark A. Pizzo on 9/6/2012. (JOG) (Entered: 09/06/2012)
150 ORDER granting 147 Motion to Transport. Signed by Magistrate Judge Mark A. Pizzo on 9/6/2012. (JOG) (Entered: 09/06/2012)
151 ORDER granting Plaintiffs' motion to transport B.G. (doc. 143) Signed by Magistrate Judge Mark A. Pizzo on 9/7/2012. (DK) (Entered: 09/07/2012)
152 RESPONSE in opposition re 137 MOTION for leave to file Third Amended Complaint MOTION to certify class filed by Grady Judd, Polk County Sheriff. (McKinley, William) (Entered: 09/07/2012)
153 MOTION for miscellaneous relief, specifically Motion to Transport (K.J.) by Polk County Sheriff. (Attachments: # 1 Text of Proposed Order Order to Transport (K.J.))(Aranda, Robert) (Entered: 09/07/2012)
154 MOTION for miscellaneous relief, specifically Motion to Transport (K.G.) by Polk County Sheriff. (Attachments: # 1 Text of Proposed Order Order to Transport (K.G.))(Aranda, Robert) (Entered: 09/07/2012)
155 ORDER granting 153 Motion to Transport Plaintiff K.J. on Septmeber 13, 2012. Signed by Magistrate Judge Mark A. Pizzo on 9/10/2012. (DK) (Entered: 09/10/2012)
156 ORDER granting 154 Motion to Transport Plaintiff K.G. on September 13, 2012. Signed by Magistrate Judge Mark A. Pizzo on 9/10/2012. (DK) (Entered: 09/10/2012)
157 Minute Entry. Proceedings held before Magistrate Judge Mark A. Pizzo: Evidentiary Hearing held on 9/11/2012. (digital) Court Reporter: Bill Jones (DK) (Entered: 09/11/2012)
158 Minute Entry. Proceedings held before Magistrate Judge Mark A. Pizzo: Evidentiary Hearing held on 9/11/2012. (digital) Court Reporter: Bill Jones (DK) (Entered: 09/11/2012)
159 ORDER directing that during course of preliminary injunction hearing, counsel and witnesses shall refrain from referring to juveniles by name, and directing that all juveniles be referred to only by the initials of their first and last names. Any inadvertent references to the juveniles by name are to be redacted from the record and court docket. See Order for details. (AGG) (Entered: 09/11/2012)
160 Minute Entry. Proceedings held before Magistrate Judge Mark A. Pizzo: Evidentiary Hearing held on 9/12/2012. (digital) Court Reporter: Bill Jones (DK) (Entered: 09/12/2012)
161 Minute Entry. Proceedings held before Magistrate Judge Mark A. Pizzo: Evidentiary Hearing on Motion for Preliminary Injunction held on 9/13/2012. (digital) Court Reporter: Bill Jones (DK) (Entered: 09/13/2012)

Case: 8:12-cv-568 As of: 11/17/2017 12:54 PM EST 24 of 54

09/14/2012 09/14/2012 09/14/2012 09/19/2012 09/25/2012 09/25/2012 09/25/2012 09/27/2012
10/08/2012
10/09/2012 10/09/2012
10/11/2012 10/16/2012 10/17/2012

162 Minute Entry. Proceedings held before Magistrate Judge Mark A. Pizzo: Evidentiary Hearing on Motion for Preliminary Injunction held on 9/14/2012. (digital) Court Reporter: Bill Jones (DK) (Entered: 09/14/2012)
163 Plaintiffs' EXHIBIT LIST (DK) (Entered: 09/14/2012)
164 DEFENDANT JUDD'S EXHIBIT LIST (DK) (RFK). (Entered: 09/14/2012)
165 COURT'S EXHIBIT LIST. (DK) (Entered: 09/19/2012)
166 NOTICE of Hearing: Telephone Conference set for 9/25/2012 at 03:00 PM in Tampa Courtroom 11 B before Magistrate Judge Mark A. Pizzo. (AGG) (Entered: 09/25/2012)
167 Minute Entry. Proceedings held before Magistrate Judge Mark A. Pizzo: Status Conference held on 9/25/2012. (DIGITAL) (AGG) (Entered: 09/25/2012)
168 ORDER setting out which depositions the Court will consider in making its report and recommendation on the merits of the Plaintiffs' motion for preliminary injunction. Signed by Magistrate Judge Mark A. Pizzo on 9/25/2012. (AGG) (Entered: 09/25/2012)
169 ORDER re: Plaintiff's motion to compel, doc. 126 to extent the motion seeks clarification of the Court's order dated August 3, 2012, it is denied, directing Defendant Judd to respond to Plaintiff's motion to compel within 10 days, and directing parties to submit a proposed stipulated protective order, if they have not already done so.. Signed by Magistrate Judge Mark A. Pizzo on 9/27/2012. (DK) (Entered: 09/27/2012)
170 NOTICE of withdrawal of motion by Crystal Cuyler, Amy Gage, Chanda Hughes, Franky Jean−Pierre, Lisa Jobe, Nikeyta Matthews, Michelle Minor, Brenda Sheffield re 126 MOTION to compel filed by Michelle Minor, Amy Gage, Chanda Hughes, Crystal Cuyler, Franky Jean−Pierre, Nikeyta Matthews, Brenda Sheffield, Lisa Jobe (Haskell, Miriam) (Entered: 10/08/2012)
171 RESPONSE to motion re 126 MOTION to compel filed by Grady Judd. (McKinley, William) (Entered: 10/09/2012)
172 NOTICE by Grady Judd re 168 Order Notice of Filing Post Hearing Deposition Designations (Attachments: # 1 Deposition Transcript of Samuel Gay, # 2 Deposition Transcript of Glenn Harrison, # 3 Deposition Transcript of Keith Russell, # 4 Deposition Transcript of K.J., # 5 Deposition Transcript of Andrew Hertel, # 6 Deposition Transcript of Jessica Cranor, # 7 Deposition Transcript of D.M., # 8 Deposition Transcript of F.J.P., # 9 Deposition Transcript of Gary W. Deland, # 10 Deposition Transcript of Justin Hester, # 11 Deposition Transcript of Joseph Choquette, # 12 Deposition Transcript of Jacques Franklin, # 13 Deposition Transcript of J.D.)(McKinley, William) IMAGES FOR ALL DEPOSITIONS HAVE BEEN REMOVED BY CLERK. COUNSEL TO REDACT AND REFILE USING THE PROPER CODE OF DEPOSITION. Modified on 10/10/2012 (CD). (Entered: 10/09/2012)
173 MOTION to seal document Defendant Grady Judd's Motion to Seal Deposition Transcripts To Be Filed Post Hearing by Grady Judd. (McKinley, William) (Entered: 10/11/2012)
174 MOTION to extend time to Certain Pre−Trial Deadlines by Crystal Cuyler, Amy Gage, Franky Jean−Pierre, Lisa Jobe, Nikeyta Matthews, Michelle Minor, Brenda Sheffield. (Galloni, Tania) (Entered: 10/16/2012)
175 TRANSCRIPT of Preliminary Inj. Hearing held on 09−10−12 before Judge Mark A. Pizzo. Court Reporter/Transcriber Bill Jones,Telephone number 813−301−5024. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER or purchased through the Court Reporter. Redaction Request due 11/7/2012, Redacted Transcript Deadline set for 11/19/2012, Release of Transcript Restriction set for 1/15/2013. (HWJ) (Entered: 10/17/2012)

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10/17/2012 10/17/2012 10/17/2012 10/17/2012 10/17/2012 10/22/2012 10/22/2012 10/24/2012 10/29/2012 10/30/2012

176 TRANSCRIPT of Preliminary Inj. Hearing held on 09−11−12 before Judge Mark A. Pizzo. Court Reporter/Transcriber Bill Jones,Telephone number 813−301−5024. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER or purchased through the Court Reporter. Redaction Request due 11/7/2012, Redacted Transcript Deadline set for 11/19/2012, Release of Transcript Restriction set for 1/15/2013. (HWJ) (Entered: 10/17/2012)
177 TRANSCRIPT of Preliminary Inj. Hearing held on 09−12−12 before Judge Mark A. Pizzo. Court Reporter/Transcriber Bill Jones,Telephone number 813−301−5024. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER or purchased through the Court Reporter. Redaction Request due 11/7/2012, Redacted Transcript Deadline set for 11/19/2012, Release of Transcript Restriction set for 1/15/2013. (HWJ) (Entered: 10/17/2012)
178 TRANSCRIPT of Preliminary Inj. Hearing held on 09−13−12 before Judge Mark A. Pizzo. Court Reporter/Transcriber Bill Jones,Telephone number 813−301−5024. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER or purchased through the Court Reporter. Redaction Request due 11/7/2012, Redacted Transcript Deadline set for 11/19/2012, Release of Transcript Restriction set for 1/15/2013. (HWJ) (Entered: 10/17/2012)
179 TRANSCRIPT of Preliminary Inj. Hearing held on 09−14−12 before Judge Mark A. Pizzo. Court Reporter/Transcriber Bill Jones,Telephone number 813−301−5024. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER or purchased through the Court Reporter. Redaction Request due 11/7/2012, Redacted Transcript Deadline set for 11/19/2012, Release of Transcript Restriction set for 1/15/2013. (HWJ) (Entered: 10/17/2012)
180 NOTICE to counsel of filing of OFFICIAL TRANSCRIPT. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days. Any party needing a copy of the transcript to review for redaction purposes may purchase a copy from the court reporter or view the document at the clerk's office public terminal. Court Reporter: Bill Jones (HWJ) (Entered: 10/17/2012)
181 NOTICE of intent to request redaction by Tania Galloni re 179 Transcript, 175 Transcript, 178 Transcript, 177 Transcript, 176 Transcript (Galloni, Tania) (Entered: 10/22/2012)
182 *VACATED PER 193 ORDER.* ORDER referring to Magistrate Judge Pizzo: (1) for a report and recommendation: 137 −−motion for leave to amend and for class certification; and (2) for disposition: 173 −−Grady Judd's motion to seal post−hearing deposition transcripts and 174 −−plaintiffs' motion for extension of pre−trial deadlines. Signed by Judge Steven D. Merryday on 10/22/2012. (BK) Modified on 11/7/2012 (CD). (Entered: 10/22/2012)
183 MOTION to compel Discovery from Plaintiffs by Grady Judd. (Attachments: # 1 Exhibit "A", # 2 Exhibit "B", # 3 Exhibit "C", # 4 Exhibit "D", # 5 Exhibit "E")(McKinley, William) Motions referred to Magistrate Judge Mark A. Pizzo. (Entered: 10/24/2012)
184 RESPONSE in opposition re 173 MOTION to seal document Defendant Grady Judd's Motion to Seal Deposition Transcripts To Be Filed Post Hearing filed by Crystal Cuyler, Amy Gage, Franky Jean−Pierre, Lisa Jobe, Nikeyta Matthews, Michelle Minor, Brenda Sheffield. (Galloni, Tania) (Entered: 10/29/2012)
185 NOTICE of Telephonic Hearing re: 174 Plaintiffs' motion to extend certain pre−trial deadlines, 173 Defendant Judd's motion to seal deposition transcripts. Telephone Conference set for 11/1/2012 at 01:30 PM in Tampa Courtroom 11 B before Magistrate Judge Mark A. Pizzo. See instructions on attached notice.(ACS) (Entered: 10/30/2012)

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10/30/2012 10/31/2012 11/01/2012 11/02/2012 11/02/2012 11/02/2012 11/06/2012 11/06/2012 11/07/2012
11/08/2012
11/09/2012 11/09/2012 11/13/2012

186 NOTICE of Hearing on 4 Plaintiffs' motion for preliminary injunction and 5 Plaintiffs' amended motion to certify class. Motion hearing set for 11/19/2012 at 09:30 AM in Tampa Courtroom 11 B before Magistrate Judge Mark A. Pizzo. (ACS) (Entered: 10/30/2012)
187 AMENDED NOTICE of Hearing: Telephone Conference re−set for 11/2/2012 at 10:30 AM in Tampa Courtroom 11 B before Magistrate Judge Mark A. Pizzo. (DK) (Entered: 10/31/2012)
188 RESPONSE in opposition re 174 MOTION to extend time to Certain Pre−Trial Deadlines filed by Grady Judd. (McKinley, William) (Entered: 11/01/2012)
189 NOTICE by Corizon Health, Inc. re 174 MOTION to extend time to Certain Pre−Trial Deadlines (Vazquez, Ramon) (Entered: 11/02/2012)
190 Minute Entry. Proceedings held before Magistrate Judge Mark A. Pizzo: Telephone Conference on Defendant Grady Judd's motion to seal post−hearing deposition transcripts (doc. 173) and Plaintiff's motion for extension of pretrial deadlines (doc. 174) held on 11/2/2012. (DIGITAL) (SSW) (Entered: 11/02/2012)
191 ENDORSED ORDER denying as moot 173 Motion to Seal Document. Defendants with Plaintiff's assistance will present a redacted version of the transcript designations and cross−designations set forth in doc. 172 omitting references to the minors names by November 12, 2012.. Signed by Magistrate Judge Mark A. Pizzo on 11/2/2012. (SSW) (Entered: 11/02/2012)
192 Transcript Redaction Request re 175 Transcript, 176 Transcript by attorney Miriam Fahsi Haskell. (Haskell, Miriam) (Entered: 11/06/2012)
193 ORDER referring to Magistrate Judge Mark A. Pizzo for disposition: Docs. 127 and 137 . To the extent that it is contrary, Doc. 182 is vacated. Signed by Judge Steven D. Merryday on 11/6/2012. (BK) (Entered: 11/06/2012)
194 ORDER granting 127 Plaintiffs' motion to add T.H. as a Plaintiff and drop J.B. as a Plaintiff. The Clerk is directed to dismiss J.B. as a Plaintiff and add T.H. as a Plaintiff. Plaintiffs' 137 motion for leave to file a third amended complaint is granted; ruling is deferred on 137 Plaintiffs' request to certify the class as to the new claim. 174 Plaintiffs' Motion to extend certain pretrial deadlines is granted in part. See order for details and new deadlines. Signed by Magistrate Judge Mark A. Pizzo on 11/7/2012. (ACS) (Entered: 11/07/2012)
195 NOTICE by Crystal Cuyler, Amy Gage, Franky Jean−Pierre, Lisa Jobe, Nikeyta Matthews, Michelle Minor, Brenda Sheffield re 191 Order on Motion to Seal Document, 172 Notice (Other)Notice (Other)Notice (Other)Notice (Other) Plaintiffs' Notice of Filing Post Hearing Deposition Designations (Attachments: # 1 Deposition Excerpt of Samuel Gay, # 2 Deposition Excerpt of Glenn Harrison, # 3 Deposition Excerpt of Keith Russell, # 4 Deposition Excerpt of KJ, # 5 Deposition Excerpt of Andrew Hertel, # 6 Deposition Excerpt of Jessica Cranor, # 7 Deposition Excerpt of DM, # 8 Deposition Excerpt of FJP, # 9 Deposition Excerpt of Gary Deland, # 10 Deposition Excerpt of Justin Hester, # 11 Deposition Excerpt of Joseph Choquette, # 12 Deposition Excerpt of Jacques Franklin, # 13 Deposition Excerpt of JD)(Haskell, Miriam) Modified on 11/15/2012, NOTE: Atty. M. Haskell called requesting exhibits 1,2,4,5,7,10,11 and 13 be deleted to due errors in redaction. Atty. M. Haskell to refile redacted version (EJC). (Entered: 11/08/2012)
196 NOTICE of Appearance by Manoj Gorantla Govindaiah on behalf of Crystal Cuyler, Amy Gage, Franky Jean−Pierre, Lisa Jobe, Nikeyta Matthews, Michelle Minor, Brenda Sheffield (Govindaiah, Manoj) (Entered: 11/09/2012)
197 AMENDED COMPLAINT (Third Amended Complaint) against Corizon Health, Inc., Grady Judd filed by Brenda Sheffield, Nikeyta Matthews, Lisa Jobe, Franky Jean−Pierre, Crystal Cuyler, Michelle Minor, Amy Gage.(Galloni, Tania) (Entered: 11/09/2012)
198 MEMORANDUM in opposition re 183 Motion to compel filed by Crystal Cuyler, Amy Gage, Terrica Hall, Chanda Hughes, Franky Jean−Pierre, Violene Jean−Pierre, Lisa Jobe, Nikeyta Matthews, Michelle Minor, Anita Nava, Brenda Sheffield. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4)(Rindone,

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11/15/2012
11/16/2012 11/16/2012 11/19/2012 11/19/2012 11/20/2012
11/20/2012
11/26/2012 11/29/2012 11/30/2012 11/30/2012 12/04/2012

Joseph) (Entered: 11/13/2012)
199 NOTICE by Crystal Cuyler, Amy Gage, Terrica Hall, Franky Jean−Pierre, Lisa Jobe, Nikeyta Matthews, Michelle Minor, Brenda Sheffield of Filing Post Hearing Deposition Designations (Second) re 195 Notice(Attachments: # 1 Deposition Excerpt of Glenn Harrison, # 2 Deposition Excerpt of Samuel Gay, # 3 Deposition Excerpt of DM, # 4 Deposition Excerpt of Andrew Hertel, # 5 Deposition Excerpt of JD, # 6 Deposition Excerpt of KJ, # 7 Deposition Excerpt of Joseph Choquette Vol 1, # 8 Deposition Excerpt of Joseph Choquette Vol 2, # 9 Deposition Excerpt of Justin Hester Vol 1, # 10 Deposition Excerpt of Justin Hester Vol 2)(Haskell, Miriam) Modified on 11/15/2012 (CD). (Entered: 11/15/2012)
200 Joint MOTION to allow electronic equipment, specifically cell hones, Ipads, smart phones, personal computers Into the Courtroom by All Plaintiffs. (Attachments: # 1 Text of Proposed Order Order on Joint Motion to Allow Attorneys to Bring Electronic Devices Into the Courtroom)(Owens, II, Jody) (Entered: 11/16/2012)
201 ENDORSED ORDER denying without prejudice 200 Motion to allow electronic equipment. Counsel are directed that they must include particular and specific information about the electronic equipment and the name(s) of counsel bringing the equipment in this type of motion.. Signed by Magistrate Judge Mark A. Pizzo on 11/16/2012. (DK) (Entered: 11/16/2012)
202 Minute Entry. Proceedings held before Magistrate Judge Mark A. Pizzo: motion hearing held on 11/19/2012 re 5 Plaintiffs' Amended MOTION to certify class and closing arguments heard on 4 Plaintiffs' MOTION for preliminary injunction. (Digital) Court Reporter: Sandra K. Provenzano (ACS) (Entered: 11/19/2012)
203 ORDER REFERRING CASE to mediation. Mediation shall be conducted on or before January 9, 2013. See order for details. Signed by Magistrate Judge Mark A. Pizzo on 11/19/2012. (ACS) (Entered: 11/19/2012)
204 TRANSCRIPT of Motion Hearing held on 11−2−12 before Judge Mark A. Pizzo. Court Reporter/Transcriber Bill Jones,Telephone number 813−301−5024. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER or purchased through the Court Reporter. Redaction Request due 12/11/2012, Redacted Transcript Deadline set for 12/21/2012, Release of Transcript Restriction set for 2/19/2013. (HWJ) (Entered: 11/20/2012)
205 NOTICE to counsel of filing of OFFICIAL TRANSCRIPT. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days. Any party needing a copy of the transcript to review for redaction purposes may purchase a copy from the court reporter or view the document at the clerk's office public terminal. Court Reporter: Bill Jones (HWJ) (Entered: 11/20/2012)
206 MOTION to compel discovery from Defendant Corizon by Crystal Cuyler, Amy Gage, Terrica Hall, Franky Jean−Pierre, Lisa Jobe, Nikeyta Matthews, Michelle Minor, Brenda Sheffield. (Galloni, Tania) Motions referred to Magistrate Judge Mark A. Pizzo. (Entered: 11/26/2012)
207 NOTICE of mediation conference/hearing to be held on January 9, 2013, at 9:30 A.M. before Peter J. Grilli. (Galloni, Tania) (Entered: 11/29/2012)
208 Defendant Grady Judd's ANSWER and affirmative defenses to 197 Amended complaint (Third Amended Complaint − Injunctive Relief Sought) by Grady Judd.(McKinley, William) (Entered: 11/30/2012)
209 ANSWER and affirmative defenses with Jury Demand to 197 Amended complaint by Corizon Health, Inc..(Vazquez, Ramon) (Entered: 11/30/2012)
210 ORDER granting in part and denying in part 183 Defendant Judd's Motion to Compel. See order for details. Signed by Magistrate Judge Mark A. Pizzo on 12/4/2012. (ACS) (Entered: 12/04/2012)

Case: 8:12-cv-568 As of: 11/17/2017 12:54 PM EST 28 of 54

12/07/2012
12/10/2012 12/11/2012 12/12/2012
12/12/2012
12/14/2012 12/17/2012 12/17/2012 12/17/2012 12/19/2012 12/21/2012

211 MOTION to compel Entry Onto Land and Request for Expedited Hearing by Crystal Cuyler, Amy Gage, Terrica Hall, Franky Jean−Pierre, Lisa Jobe, Nikeyta Matthews, Michelle Minor, Brenda Sheffield. (Attachments: # 1 Exhibit − Plaintiffs' Second Request for Entry Onto Land, # 2 Exhibit − Defendant Judd's Response, # 3 Exhibit − Defendant Corizon's Response, # 4 Exhibit − Correspondence Between Counsel, # 5 Exhibit − Excerpts of May 10, 2012 Telephonic Conference, # 6 Exhibit − Excerpts of May 14, 2012 Telephonic Conference, # 7 Exhibit − Excerpts of Deposition of Defendant's Expert Richard M. Hough, # 8 Exhibit − Excerpts of Deposition of Plaintiffs' Expert Paul DeMuro, # 9 Exhibit − Excerpts of Deposition of Plaintiffs' Expert Daphne Glindmeyer, # 10 Exhibit − Excerpt of Report by Defendant's Expert Richard M. Hough)(Galloni, Tania) Motions referred to Magistrate Judge Mark A. Pizzo. (Entered: 12/07/2012)
212 RESPONSE to motion re 206 MOTION to compel discovery from Defendant Corizon filed by Corizon Health, Inc.. (Wallace, Philip) (Entered: 12/10/2012)
213 NOTICE of Telephonic Hearing on 211 Plaintiffs' motion to compel entry onto land and request for expedited hearing. Telephonic motion hearing set for 12/17/2012 at 09:15 AM before Magistrate Judge Mark A. Pizzo. Please see attached notice for call−in instructions.(ACS) (Entered: 12/11/2012)
214 TRANSCRIPT of Motion Hearing Preliminary Injunction and Certification of Class held on 11/19/12 before Judge Mark A Pizzo. Court Reporter/Transcriber Sandra Provenzano,Telephone number 813/301−5699. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER or purchased through the Court Reporter. Redaction Request due 1/2/2013, Redacted Transcript Deadline set for 1/14/2013, Release of Transcript Restriction set for 3/12/2013. (SKP) (Entered: 12/12/2012)
215 NOTICE to counsel of filing of OFFICIAL TRANSCRIPT. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days. Any party needing a copy of the transcript to review for redaction purposes may purchase a copy from the court reporter or view the document at the clerk's office public terminal. Court Reporter: Sandra K. Provenzano (SKP) (Entered: 12/12/2012)
216 RESPONSE in opposition re 211 MOTION to compel Entry Onto Land and Request for Expedited Hearing filed by Grady Judd. (Attachments: # 1 Exhibit "A", # 2 Exhibit "B")(McKinley, William) (Entered: 12/14/2012)
217 Minute Entry for Proceedings held before Magistrate Judge Mark A. Pizzo: Motion Hearing held on 12/17/2012 re 211 MOTION to compel Entry Onto Land and Request for Expedited Hearing filed by Plaintiffs. (ACS) (Entered: 12/17/2012)
218 ORDER granting in part and denying in part 211 Plaintiffs' Motion to compel entry onto land. See order for details. Signed by Magistrate Judge Mark A. Pizzo on 12/17/2012. (ACS) (Entered: 12/17/2012)
219 MOTION for leave to file Reply to Defendant's Memorandum in Opposition to Plaintiffs' Motion to Compel Discovery from Corizon by Crystal Cuyler, Amy Gage, Terrica Hall, Franky Jean−Pierre, Lisa Jobe, Nikeyta Matthews, Michelle Minor, Brenda Sheffield. (Galloni, Tania) (Entered: 12/17/2012)
220 STIPULATION re 218 Order on motion to compel by Crystal Cuyler, Amy Gage, Terrica Hall, Franky Jean−Pierre, Lisa Jobe, Nikeyta Matthews, Michelle Minor, Brenda Sheffield. (Galloni, Tania) (Entered: 12/19/2012)
221 MOTION to modify in Part the Court's December 17, 2012 Ruling on Plaintiffs' Motion to Compel Entry onto Land and Request for Expedited Hearing by Crystal Cuyler, Amy Gage, Terrica Hall, Franky Jean−Pierre, Lisa Jobe, Nikeyta Matthews, Michelle Minor, Brenda Sheffield. (Attachments: # 1 Exhibit Exhibit 1: Declaration of Paul DeMuro, # 2 Exhibit Exhibit 2: Declaration of Dr. Daphne Glindmeyer, # 3 Exhibit Exhibit 3: Declaration of Attorney Mark Soler, # 4 Exhibit Exhibit 4: Letter from SPLC to Hank Campbell, # 5 Exhibit Exhibit 5: Hearing Transcript, # 6 Exhibit Exhibit 6: Response to Interrogatory)(Haskell, Miriam) (Entered: 12/21/2012)

Case: 8:12-cv-568 As of: 11/17/2017 12:54 PM EST 29 of 54

01/02/2013 01/04/2013 01/04/2013 01/07/2013 01/08/2013 01/08/2013 01/08/2013 01/08/2013 01/09/2013 01/11/2013
01/14/2013 01/15/2013 01/15/2013 01/16/2013 01/17/2013 01/17/2013

222 ENDORSED ORDER re 221 Plaintiffs' motion to modify in part the Court's December 17, 2012 ruling and request for expedited hearing. Defendants are ordered to file an expedited response to the motion by Friday, January 4, 2013.Signed by Magistrate Judge Mark A. Pizzo on 1/2/2013. (ACS) (Entered: 01/02/2013)
223 RESPONSE to motion re 221 MOTION to modify in Part the Court's December 17, 2012 Ruling on Plaintiffs' Motion to Compel Entry onto Land and Request for Expedited Hearing filed by Corizon Health, Inc.. (Wallace, Philip) (Entered: 01/04/2013)
224 RESPONSE to motion re 221 MOTION to modify in Part the Court's December 17, 2012 Ruling on Plaintiffs' Motion to Compel Entry onto Land and Request for Expedited Hearing filed by Grady Judd. (Attachments: # 1 Exhibit "A")(McKinley, William) (Entered: 01/04/2013)
225 MOTION for leave to file Reply to Defendant Judd's Response to Plaintiffs' Motion to Modify in Part the Court's December 17, 2012 Ruling by Crystal Cuyler, Amy Gage, Terrica Hall, Franky Jean−Pierre, Lisa Jobe, Nikeyta Matthews, Michelle Minor, Brenda Sheffield. (Galloni, Tania) (Entered: 01/07/2013)
226 NOTICE of Telephonic Hearing on 221 MOTION to modify in Part the Court's December 17, 2012 Ruling. Telephonic Motion Hearing set for 1/8/2013 at 03:00 PM in Tampa Courtroom 11 B before Magistrate Judge Mark A. Pizzo. See attached notice for call−in instructions.(ACS) (Entered: 01/08/2013)
227 ORDER granting in part and denying in part 206 Plaintiffs' motion to compel Corizon; denying 219 Plaintiffs' motion for leave to file a reply. Signed by Magistrate Judge Mark A. Pizzo on 1/8/2013. (ACS) (Entered: 01/08/2013)
228 Minute Entry. Proceedings held before Magistrate Judge Mark A. Pizzo: Telephone hearing on Plaintiffs' motion to modify held on 1/8/2013. (digital) (ACS) (Entered: 01/08/2013)
229 ORDER granting in part 221 Plaintiffs' motion to modify, and denying as moot 225 Plaintiffs' motion for leave to file a reply. See order for details. Signed by Magistrate Judge Mark A. Pizzo on 1/8/2013. (ACS) (Entered: 01/08/2013)
230 MEDIATION REPORT Hearing held on January 9, 2013. Hearing outcome: the parties have agreed to keep the mediation open to close of business January 18, 2013.(Grilli, Peter) (Entered: 01/09/2013)
231 Joint MOTION for issuance of Order Authorizing Disclosure of Individuals' Names by Crystal Cuyler, Amy Gage, Terrica Hall, Franky Jean−Pierre, Lisa Jobe, Nikeyta Matthews, Michelle Minor, Brenda Sheffield. (Attachments: # 1 Text of Proposed Order)(Govindaiah, Manoj) Motions referred to Magistrate Judge Mark A. Pizzo. (Entered: 01/11/2013)
232 ORDER granting 231 parties' joint motion to disclose names. See order for details. Signed by Magistrate Judge Mark A. Pizzo on 1/14/2013. (ACS) (Entered: 01/14/2013)
233 ORDER re 211 Plaintiffs' Motion to Compel Entry onto Land. See order for details. Signed by Magistrate Judge Mark A. Pizzo on 1/15/2013. (ACS) (Entered: 01/15/2013)
234 Minute Entry. Proceedings held before Magistrate Judge Mark A. Pizzo: Telephonic motion hearing held on 1/15/2013 re 211 Plaintiffs' motion to compel entry onto land.(DIGITAL) (ACS) (Entered: 01/15/2013)
235 ORDER re 211 Plaintiffs' motion to compel entry onto land. As stated at today's telephone hearing, Plaintiffs' request for Mr. DeMuro to have access to documents during the inspection is denied. See order for details. Signed by Magistrate Judge Mark A. Pizzo on 1/16/2013. (ACS) (Entered: 01/16/2013)
236 Minute Entry. Proceedings held before Magistrate Judge Mark A. Pizzo: Telephone Conference held on 1/17/2013. (DIGITAL) (SSW) (Entered: 01/17/2013)
237 ORDER Granting Plaintiff's request. Defendant, Grady Judd, shall allow Plaintiffs expert, Dr. Glindmeyer, access to Plaintiffs client who is currently being held at the

Case: 8:12-cv-568 As of: 11/17/2017 12:54 PM EST 30 of 54

01/18/2013 01/22/2013 01/22/2013 01/23/2013
01/23/2013 01/23/2013 01/24/2013 01/29/2013 01/30/2013
02/04/2013 02/07/2013
02/11/2013 02/11/2013 02/11/2013 02/13/2013
02/13/2013

South County Jail at 12:30 p.m. for a total of one and one−half hours. Signed by Magistrate Judge Mark A. Pizzo on 1/17/2013. (SSW) (Entered: 01/17/2013)
238 MEDIATION REPORT Hearing held on January 9, 2013. Hearing outcome: the parties have agreed to keep the mediation open until close of business January 23, 2013.(Grilli, Peter) (Entered: 01/18/2013)
239 STIPULATION re 227 Order on Motion to CompelOrder on Motion for Leave to File by Corizon Health, Inc.. (Attachments: # 1 Text of Proposed Order for Extension of Time)(Wallace, Philip) (Entered: 01/22/2013)
240 STIPULATION re 227 Order on Motion to CompelOrder on Motion for Leave to File Amended by Corizon Health, Inc.. (Attachments: # 1 Text of Proposed Order Order on Extension of Time)(Wallace, Philip) (Entered: 01/22/2013)
241 ENDORSED ORDER denying as moot 101 Plaintiffs' motion for leave to file reply to response to motion to compel Sheriff Judd's deposition. The Court denied the motion to compel (see doc. 102). The motion to file a reply is therefore moot. Signed by Magistrate Judge Mark A. Pizzo on 1/23/2013. (ACS) (Entered: 01/23/2013)
242 ORDER denying without prejudice 77 Defendant Corizon's motion to dismiss as to Plaintiff K.G.'s exhaustion of administrative remedies. See order for details. Signed by Magistrate Judge Mark A. Pizzo on 1/23/2013. (ACS) (Entered: 01/23/2013)
243 ORDER re 240 Stipulation filed by Corizon Health, Inc. See order for details. Signed by Magistrate Judge Mark A. Pizzo on 1/23/2013. (ACS) (Entered: 01/23/2013)
244 MEDIATION report Hearing held on January 9, 2013.. Hearing outcome: the case has reached an impasse with respect to Plaintiffs and Sheriff Judd. The mediation remains open with respect to Plaintiffs and Corizon... (Grilli, Peter) (Entered: 01/24/2013)
245 Unopposed MOTION for Extension of Time to Complete Discovery by Corizon Health, Inc.. (Wallace, Philip) Motions referred to Magistrate Judge Mark A. Pizzo. (Entered: 01/29/2013)
246 ENDORSED ORDER granting 245 Defendant Corizon Health, Inc.'s Unopposed Motion for Extension of Time to Complete Discovery. Corizon has until Tuesday, February 19, 2013, to comply with my discovery order. Signed by Magistrate Judge Mark A. Pizzo on 1/30/2013. (ACS) (Entered: 01/30/2013)
247 MEDIATION report Hearing held on January 9, 2013. Hearing outcome: the parties now have reached an impasse... (Grilli, Peter) (Entered: 02/04/2013)
248 MOTION to Take Deposition (Defendant's Motion and Incorporated Memorandum of Law for Leave to Take Oral Depositions) by Grady Judd. (Attachments: # 1 Exhibit "A")(McKinley, William) Motions referred to Magistrate Judge Mark A. Pizzo. (Entered: 02/07/2013)
249 Unopposed MOTION for Extension of Time to Complete Discovery Submission of Expert Reports by Corizon Health, Inc.. (Wallace, Philip) Motions referred to Magistrate Judge Mark A. Pizzo. (Entered: 02/11/2013)
250 Unopposed MOTION for Extension of Time to Complete Discovery Depositions by Corizon Health, Inc.. (Wallace, Philip) Motions referred to Magistrate Judge Mark A. Pizzo. (Entered: 02/11/2013)
251 MOTION for Extension of Time to Complete Discovery Defendant Judd's Motion for Extension of Time to File Psychiatric Expert Report by Grady Judd. (Aranda, Robert) Motions referred to Magistrate Judge Mark A. Pizzo. (Entered: 02/11/2013)
252 CERTIFICATE of counsel re 248 MOTION to Take Deposition (Defendant's Motion and Incorporated Memorandum of Law for Leave to Take Oral Depositions) Defendant Judd's Notice of Filing Supplemental Local Rule 3.01 Certificate by Robert J. Aranda on behalf of Grady Judd (Aranda, Robert) (Entered: 02/13/2013)
253 ENDORSED ORDER granting 248 Defendant Judd's Motion for Leave to Take Oral Depositions. The parties represent that the motion is unopposed. Signed by Magistrate Judge Mark A. Pizzo on 2/13/2013. (ACS) (Entered: 02/13/2013)

Case: 8:12-cv-568 As of: 11/17/2017 12:54 PM EST 31 of 54

02/13/2013 02/13/2013
02/14/2013
02/15/2013 02/19/2013
02/19/2013 02/20/2013 02/21/2013
02/26/2013 02/26/2013 02/27/2013 02/27/2013 02/28/2013 03/01/2013

254 MOTION for protective order Depos of Bender, Scott and Dwares by Corizon Health, Inc.. (Wallace, Philip) Motions referred to Magistrate Judge Mark A. Pizzo. (Entered: 02/13/2013)
255 RESPONSE in Opposition re 251 MOTION for Extension of Time to Complete Discovery Defendant Judd's Motion for Extension of Time to File Psychiatric Expert Report, 250 Unopposed MOTION for Extension of Time to Complete Discovery Depositions, 249 Unopposed MOTION for Extension of Time to Complete Discovery Submission of Expert Reports filed by Crystal Cuyler, Amy Gage, Terrica Hall, Chanda Hughes, Franky Jean−Pierre, Lisa Jobe, Nikeyta Matthews, Michelle Minor, Brenda Sheffield. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit)(Galloni, Tania) (Entered: 02/13/2013)
256 ORDER granting in part 249 Motion for Extension of Time to Complete Discovery; granting in part 251 Motion for Extension of Time to Complete Discovery. The expert reports are due by February 28, 2013, with Plaintiffs' rebuttal reports due by March 7, 2013.. Signed by Magistrate Judge Mark A. Pizzo on 2/14/2013. (SSW) (Entered: 02/14/2013)
257 MOTION to Compel Depositions and Incorporated Memorandum of Law by Grady Judd. (Attachments: # 1 Exhibit "A", # 2 Exhibit "B", # 3 Exhibit "C", # 4 Exhibit "D")(McKinley, William) Motions referred to Magistrate Judge Mark A. Pizzo. (Entered: 02/15/2013)
258 ORDER granting in part and denying in part 250 Defendant Corizon's Motion for Extension of Time to Complete Discovery; denying as moot 254 Corizon's Motion for Protective Order; ruling deferred 257 Defendant Judd's Motion to Compel. See order for details. Signed by Magistrate Judge Mark A. Pizzo on 2/19/2013. (ACS) (Entered: 02/19/2013)
259 Third MOTION to extend time to February 25, 2013 to Comply with Court's January 8, 2013 Order by Corizon Health, Inc.. (Wallace, Philip) (Entered: 02/19/2013)
260 ENDORSED ORDER granting 259 Motion to extend time. Defendant Corizon Health, Inc. has until February 25, 2013 to comply with the Court's January 8, 2013 Order. Signed by Magistrate Judge Mark A. Pizzo on 2/20/2013. (SSW) (Entered: 02/20/2013)
261 RESPONSE in Opposition re 257 MOTION to Compel Depositions and Incorporated Memorandum of Law filed by Crystal Cuyler, Amy Gage, Terrica Hall, Franky Jean−Pierre, Lisa Jobe, Nikeyta Matthews, Michelle Minor, Brenda Sheffield. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit)(Galloni, Tania) (Entered: 02/21/2013)
262 MOTION to supplement Defense Expert Reports by Corizon Health, Inc.. (Wallace, Philip) (Entered: 02/26/2013)
263 NOTICE by Corizon Health, Inc. re 262 MOTION to supplement Defense Expert Reports Notice of Filing Exhibit (Attachments: # 1 Exhibit 1−a, # 2 Exhibit 1−b, # 3 Exhibit 1−c, # 4 Exhibit 1−d)(Wallace, Philip) (Entered: 02/26/2013)
264 ORDER denying 257 Defendant Judd's Motion to Compel Depositions. See order for details. Signed by Magistrate Judge Mark A. Pizzo on 2/27/2013. (ACS) (Entered: 02/27/2013)
265 ENDORSED ORDER ruling deferred 262 Defendant Corizon's Motion to Interview Witnesses. Plaintiffs are directed to file a response by 5:00 p.m. on Friday, March 1, 2013. Signed by Magistrate Judge Mark A. Pizzo on 2/27/2013. (ACS) (Entered: 02/27/2013)
266 MOTION to supplement Motion to Join Corizon's Motion to Interview Wintesses and/or to Supplement Defense Expert Reports by Grady Judd. (McKinley, William) (Entered: 02/28/2013)
267 Joint MOTION to Take Deposition from Dr. Charles Scott on March 12, 2013 and to Provide for Plaintiff's Rebuttal Report by Corizon Health, Inc.. (Wallace, Philip) Motions referred to Magistrate Judge Mark A. Pizzo. (Entered: 03/01/2013)

Case: 8:12-cv-568 As of: 11/17/2017 12:54 PM EST 32 of 54

03/01/2013 03/01/2013
03/01/2013 03/01/2013
03/07/2013
03/07/2013 03/08/2013 03/11/2013 03/11/2013 03/11/2013 03/12/2013
03/12/2013 03/15/2013 03/15/2013

268 Proposed Order as to Joint Motion to Take Deposition from Dr. Charles Scott by Corizon Health, Inc. (Wallace, Philip) Motions referred to Magistrate Judge Mark A. Pizzo. Modified on 3/4/2013 (CD). (Entered: 03/01/2013)
269 RESPONSE in Opposition re 262 MOTION to supplement Defense Expert Reports, 266 MOTION to supplement Motion to Join Corizon's Motion to Interview Wintesses and/or to Supplement Defense Expert Reports filed by Crystal Cuyler, Amy Gage, Terrica Hall, Franky Jean−Pierre, Lisa Jobe, Nikeyta Matthews, Michelle Minor, Brenda Sheffield. (Attachments: # 1 Exhibit Defendant Corizon's Expert Fee Agreement, # 2 Exhibit Defendant Corizon's Expert Report (Deleted at counsel's request − will file redacted copy)(Galloni, Tania) Modified on 3/1/2013 (AG). (Entered: 03/01/2013)
270 NOTICE by Crystal Cuyler, Amy Gage, Terrica Hall, Franky Jean−Pierre, Lisa Jobe, Nikeyta Matthews, Michelle Minor re 269 Response in Opposition to Motion Notice of Filing Redacted Exhibit (Attachments: # 1 Exhibit Defendant Corizon's Expert Report)(Galloni, Tania) (Entered: 03/01/2013)
***PRO HAC VICE FEES paid and Special Admission Attorney Certification Form filed by attorney Maria V. Morris, appearing on behalf of Crystal Cuyler, Amy Gage, Terrica Hall, Chanda Hughes, Franky Jean−Pierre, Lisa Jobe, Nikeyta Matthews, Michelle Minor (Filing fee $10 receipt number TPA16125.). (JNB) (Entered: 03/04/2013)
271 *DOCUMENT TERMINATED. COUNSEL TO REFILE IN COMPLIANCE WITH ADMINISTRATIVE PROCEDURES.* Written designation and consent to act by Tania Galloni on behalf of Crystal Cuyler, Amy Gage, Terrica Hall, Franky Jean−Pierre, Lisa Jobe, Nikeyta Matthews, Michelle Minor, Brenda Sheffield. Local Counsel: Tania Galloni. Non−Resident Counsel: Maria V. Morris. (Galloni, Tania) Modified on 3/8/2013 (CD). (Entered: 03/07/2013)
272 MOTION to Strike 269 Response in Opposition to Motion to Interview Witnesses and/or Supplement Expert Reports by Corizon Health, Inc.. (Wallace, Philip) Motions referred to Magistrate Judge Mark A. Pizzo. (Entered: 03/07/2013)
273 Written designation and consent to act by Tania Galloni on behalf of Crystal Cuyler, Amy Gage, Terrica Hall, Franky Jean−Pierre, Lisa Jobe, Nikeyta Matthews, Michelle Minor, Brenda Sheffield. Local Counsel: Tania Galloni. Non−Resident Counsel: Maria V. Morris. (Galloni, Tania) (Entered: 03/08/2013)
274 RESPONSE in Opposition re 272 MOTION to Strike 269 Response in Opposition to Motion to Interview Witnesses and/or Supplement Expert Reports filed by Crystal Cuyler, Amy Gage, Terrica Hall, Franky Jean−Pierre, Lisa Jobe, Nikeyta Matthews, Michelle Minor, Brenda Sheffield. (Galloni, Tania) (Entered: 03/11/2013)
275 ENDORSED ORDER granting 267 Joint Motion to Take Deposition. Signed by Magistrate Judge Mark A. Pizzo on 3/11/2013. (ACS) (Entered: 03/11/2013)
276 ORDER denying 262 Corizon's Motion to Supplement; denying 266 Judd's Motion to Join; and denying 272 Corizon's Motion to Strike. See order for details. Signed by Magistrate Judge Mark A. Pizzo on 3/11/2013. (ACS) (Entered: 03/11/2013)
277 NOTICE OF RESCHEDULING HEARING: The Pretrial Conference previously scheduled for 4/4/2013 is rescheduled. New scheduling date and time:Pretrial Conference set for 4/8/2013 at 09:30 AM in Tampa Courtroom 11B before Magistrate Judge Mark A. Pizzo. All other deadlines remain unchanged.(ACS) (Entered: 03/12/2013)
278 Joint MOTION for Leave to File Excess Pages for Motions for Summary Judgment and Responses by Michael Allen, Grady Judd, Kim Marcum, Polk County Sheriff. (McKinley, William) (Entered: 03/12/2013)
279 MOTION for summary judgment and Incorporated Memorandum of Law by Grady Judd. (Attachments: # 1 Exhibit A)(Campbell, Hank) (Entered: 03/15/2013)
280 MOTION for summary judgment and Incorporated Memorandum of Law by Grady Judd. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C − Part 1, # 4 Exhibit C − Part 2, # 5 Exhibit C − Part 3, # 6 Exhibit C − Part 4, # 7 Exhibit C − Part 5, # 8

Case: 8:12-cv-568 As of: 11/17/2017 12:54 PM EST 33 of 54

03/15/2013 03/15/2013 03/15/2013 03/15/2013 03/15/2013 03/15/2013
03/15/2013 03/15/2013 03/15/2013 03/15/2013 03/15/2013 03/15/2013 03/15/2013 03/15/2013
03/18/2013

Exhibit D, # 9 Exhibit E − Part 1, # 10 Exhibit E − Part 2, # 11 Exhibit F − Part 1, # 12 Exhibit F − Part 2, # 13 Exhibit F − Part 3, # 14 Exhibit G, # 15 Exhibit H, # 16 Exhibit I, # 17 Exhibit J, # 18 Exhibit K)(Campbell, Hank) (Entered: 03/15/2013)
281 MOTION to extend time to File Motion for Summary Judgment by Grady Judd. (Campbell, Hank) (Entered: 03/15/2013)
282 DEPOSITION of Gary DeLand taken on 08/29/12 re 280 MOTION for summary judgment and Incorporated Memorandum of Law . (Attachments: # 1 Main Document Part 2, # 2 Main Document Part 3)(Campbell, Hank) (Entered: 03/15/2013)
283 DEPOSITION of Richard Hough, Sr. taken on 02/26/13 re 280 MOTION for summary judgment and Incorporated Memorandum of Law . (Campbell, Hank) (Entered: 03/15/2013)
284 DEPOSITION of Captain Kimberly Marcum taken on 07/24/12 re 280 MOTION for summary judgment and Incorporated Memorandum of Law . (Campbell, Hank) (Entered: 03/15/2013)
285 DEPOSITION of Chief Bryant Grant taken on 02/07/13 re 280 MOTION for summary judgment and Incorporated Memorandum of Law . (Campbell, Hank) (Entered: 03/15/2013)
286 DEPOSITION of Timothy Pemberton taken on 02/05/13 re 280 MOTION for summary judgment and Incorporated Memorandum of Law . (Attachments: # 1 Main Document Part 2, # 2 Main Document Part 3, # 3 Main Document Part 4, # 4 Main Document Part 5, # 5 Main Document Part 6, # 6 Main Document Part 7)(Campbell, Hank) (Entered: 03/15/2013)
287 DEPOSITION of Major Michael Allen taken on 07/23/12 re 280 MOTION for summary judgment and Incorporated Memorandum of Law . (Campbell, Hank) (Entered: 03/15/2013)
288 DEPOSITION of Major Michael Allen taken on 02/25/13 re 280 MOTION for summary judgment and Incorporated Memorandum of Law . (Attachments: # 1 Main Document Part 2, # 2 Main Document Part 3, # 3 Main Document Part 4, # 4 Main Document Part 5, # 5 Main Document Part 6)(Campbell, Hank) (Entered: 03/15/2013)
289 DEPOSITION of B.G. taken on 06/20/12 re 280 MOTION for summary judgment and Incorporated Memorandum of Law . (Campbell, Hank) (Entered: 03/15/2013)
290 DEPOSITION of K.J. taken on 06/26/12 re 280 MOTION for summary judgment and Incorporated Memorandum of Law . (Campbell, Hank) (Entered: 03/15/2013)
291 DEPOSITION of K.G. taken on 06/26/12 re 280 MOTION for summary judgment and Incorporated Memorandum of Law . (Campbell, Hank) (Entered: 03/15/2013)
292 DEPOSITION of Bobbi Jo Bender taken on 03/05/13 re 280 MOTION for summary judgment and Incorporated Memorandum of Law . (Attachments: # 1 Main Document Part 2, # 2 Main Document Part 3, # 3 Main Document Part 4)(Campbell, Hank) (Entered: 03/15/2013)
293 MOTION for summary judgment and Memorandum of Law in Support Thereof by Corizon Health, Inc.. (Vazquez, Ramon) (Entered: 03/15/2013)
294 NOTICE by Corizon Health, Inc. re 293 MOTION for summary judgment and Memorandum of Law in Support Thereof (Attachments: # 1 Excerpt of Hrg held 9−14−12, # 2 Expert Report − Dr. Charles Scott, # 3 Expert Report − Dr. Joseph Penn, # 4 Excerpt Depo Dr. Daphne Glindmeyer 2−14−13, # 5 Excerpt depo J.P. 6−20−12, # 6 Depo T.H. 2−11−13(IMAGE DELETED. COUNSEL TO REFILE REDACTED VERSION), # 7 Depo Bobbi Jo Bender 3−5−13 part 1, # 8 Depo Bobbi Jo Bender 3−5−13 part 2)(Vazquez, Ramon) Modified on 4/5/2013 (DMS). (Entered: 03/15/2013)
295 PRETRIAL statement by Crystal Cuyler, Amy Gage, Terrica Hall, Franky Jean−Pierre, Lisa Jobe, Nikeyta Matthews, Michelle Minor. (Attachments: # 1 Exhibit Plaintiffs' Exhibit List with Defendant Judd Objections, # 2 Exhibit Plaintiffs' Exhibit List with Defendant Corizon Objections, # 3 Exhibit Plaintiffs' Witness List, # 4 Exhibit Defendant Judd Exhibit List with Plaintiffs' Objections, # 5 Exhibit Defendant

Case: 8:12-cv-568 As of: 11/17/2017 12:54 PM EST 34 of 54

03/19/2013 03/21/2013 03/22/2013

Judd Witness List, # 6 Exhibit Defendant Corizon Exhibit List with Plaintiffs' Objections, # 7 Exhibit Defendant Corizon Witness List)(Galloni, Tania) (Entered: 03/18/2013)
296 ORDER rescheduling the pretrial conference and trial. See order for details. Signed by Magistrate Judge Mark A. Pizzo on 3/19/2013. (ACS) (Entered: 03/19/2013)
297 Unopposed MOTION to extend time to File Motions in Limine, Daubert Motions and other motions (PARTIALLY UNOPPOSED BY PLAINTIFFS) by Corizon Health, Inc., Grady Judd. (Vazquez, Ramon) (Entered: 03/21/2013)
298 ORDER:

Referring to Magistrate Judge Pizzo for disposition: 115 −−unopposed motion for leave to file under seal, 278 −−joint motion for leave to exceed the page limit, and 281 −−motion to extend time to file motion for summary judgment.

03/22/2013
03/25/2013 03/25/2013 03/25/2013 03/25/2013
03/25/2013 03/25/2013 03/25/2013 03/25/2013 03/25/2013 03/25/2013 03/25/2013

Referring to Magistrate Judge Pizzo for a report and recommendation, if granted, or for disposition, if denied: 279 , 280 , and 293 −−motions for summary judgment. Signed by Judge Steven D. Merryday on 3/22/2013. (BK) (Entered: 03/22/2013)
299 RESPONSE in Opposition re 297 Unopposed MOTION to extend time to File Motions in Limine, Daubert Motions and other motions (PARTIALLY UNOPPOSED BY PLAINTIFFS) filed by Crystal Cuyler, Amy Gage, Terrica Hall, Chanda Hughes, Franky Jean−Pierre, Lisa Jobe, Nikeyta Matthews, Michelle Minor, Brenda Sheffield. (Galloni, Tania) (Entered: 03/22/2013)
300 MOTION in limine regarding to Bar Witnesses and Exhibits and Memorandum of Law by All Plaintiffs. (Hayden, Donald) (Entered: 03/25/2013)
301 Joint MOTION to extend time to conduct trial and Motion for Date Certain by Crystal Cuyler, Amy Gage, Terrica Hall, Franky Jean−Pierre, Lisa Jobe, Nikeyta Matthews, Michelle Minor, Brenda Sheffield. (Haskell, Miriam) (Entered: 03/25/2013)
302 MOTION in limine regarding Precluding Questioning of SPLC Legal Staff by All Plaintiffs. (Morris, Maria) (Entered: 03/25/2013)
303 MOTION in limine to exclude evidence of past delinquency and criminal histories of plaintiffs and witnesses by Crystal Cuyler, Amy Gage, Terrica Hall, Franky Jean−Pierre, Lisa Jobe, Nikeyta Matthews, Michelle Minor, Brenda Sheffield. (Haskell, Miriam) (Entered: 03/25/2013)
304 First MOTION in limine regarding Newspaper articles, press releases or comments made to or through the media by Grady Judd. (Aranda, Robert) (Entered: 03/25/2013)
305 Second MOTION in limine regarding Any studies, treatises, or reports, presented without authentication or foundation by Grady Judd. (Aranda, Robert) (Entered: 03/25/2013)
306 Third MOTION in limine regarding School or education requirements and curricula provided by third party, School Board of Polk County, Florida, to the juvenile inmates by Grady Judd. (Aranda, Robert) (Entered: 03/25/2013)
307 Fourth MOTION in limine regarding Argument or evidence of rehabilitation or counseling provided or not provided to any of the juvenile inmates by Grady Judd. (Aranda, Robert) (Entered: 03/25/2013)
308 Fifth MOTION in limine regarding argument that the staffing levels of detention staff at the facility are not sufficient or optimum for the operation of a detention facility by Grady Judd. (Aranda, Robert) (Entered: 03/25/2013)
309 Sixth MOTION in limine regarding inmate written statements taken or presented by Plaintiffs' counsel, as well as interviews relied upon by Plaintiffs' experts by Grady Judd. (Aranda, Robert) (Entered: 03/25/2013)
310 Seventh MOTION in limine regarding evidence regarding the use of isolation by Grady Judd. (Aranda, Robert) (Entered: 03/25/2013)

Case: 8:12-cv-568 As of: 11/17/2017 12:54 PM EST 35 of 54

03/25/2013 03/25/2013 03/25/2013
03/25/2013 03/25/2013 03/25/2013 03/25/2013 03/25/2013 03/25/2013 03/25/2013 03/25/2013 03/25/2013 03/25/2013
03/25/2013
03/25/2013

311 Eighth MOTION in limine regarding any studies or treatises relied upon by Plaintiffs' experts by Grady Judd. (Aranda, Robert) (Entered: 03/25/2013)
312 Ninth MOTION in limine regarding evidence of or presentation of argument for standards that are not based on FS 985.688, or which are not applicable to the facility operated by Defendant Judd for juvenile detainees by Grady Judd. (Aranda, Robert) (Entered: 03/25/2013)
313 Tenth MOTION in limine regarding evidence concerning the assault of a juvenile detainee by cellmates, in which all cellmates attempted to conceal the incident from detention staff, which, upon discovery, was intercepted, and which would be precluded by current technology in place in the facility. by Grady Judd. (Aranda, Robert) (Entered: 03/25/2013)
314 MOTION in limine regarding documents createdby counsel, including correspondence between Plaintiffs' counsel and Defendant Judd's General Counsel by Grady Judd. (Aranda, Robert) (Entered: 03/25/2013)
315 MOTION in limine regarding expert reports. by Grady Judd. (Aranda, Robert) (Entered: 03/25/2013)
316 MOTION in limine regarding evidence or argumentation that the use of pepper spray is dangerous, causes ill effects, etc. by Grady Judd. (Aranda, Robert) (Entered: 03/25/2013)
317 MOTION in limine regarding evidence or argumentation that because the juvenile detainees are younger than 18 years of age, the use of force, pepper spray, isolation, or other security measures are inappropriate by Grady Judd. (Aranda, Robert) (Entered: 03/25/2013)
318 MOTION to Disqualify Testimony and Reports of Dr. Daphne Glindmeyer (DAUBERT MOTION) by Corizon Health, Inc.. (Vazquez, Ramon) (Entered: 03/25/2013)
319 MOTION in limine regarding evidence or argumentation that changes or improvements to the Central County Jail are attributable to Plaintiffs' lawsuit, or are proof of wrongdoing by Grady Judd. (Aranda, Robert) (Entered: 03/25/2013)
320 MOTION in limine regarding evidence or argumentation that the alternative use of the area known as isolation for reasons other than discipline is the same as isolation for disciplinary reasons by Grady Judd. (Aranda, Robert) (Entered: 03/25/2013)
321 MOTION in limine regarding various issues by Corizon Health, Inc.. (Attachments: # 1 e−mails dated 8−14−12 & 8−15−12, # 2 Excerpts Deposition Paul DeMuro)(Vazquez, Ramon) (Entered: 03/25/2013)
322 MOTION in limine regarding To Preclude Questioning That Implicates the 5th Amendment's Protections Against Self−Incrimination by All Plaintiffs. (Attachments: # 1 Exhibit A)(Haskell, Miriam) (Entered: 03/25/2013)
323 MOTION in limine regarding Medical Records Not Previously Provided to Plaintiffs by Defendant Corizon by Crystal Cuyler, Amy Gage, Terrica Hall, Franky Jean−Pierre, Lisa Jobe, Nikeyta Matthews, Michelle Minor, Brenda Sheffield. (Attachments: # 1 Exhibit March/April 2012 Medical Records Requests, # 2 Exhibit August 2012 Corizon Cover Letter with Records, # 3 Exhibit Expert Report of Dr. Daphne Glindmeyer, # 4 Exhibit Excerpts from Deposition of Juliann Dwares, # 5 Exhibit Additional Excerpts from Deposition of Juliann Dwares, # 6 Exhibit March 19, 2013 Email from Corizon Re: Incomplete Records)(Galloni, Tania) (Entered: 03/25/2013)
324 MOTION in limine regarding Testimony by Juliann Dwares on Issues to Which She Has Admitted Lacking Expertise by Crystal Cuyler, Amy Gage, Terrica Hall, Franky Jean−Pierre, Lisa Jobe, Nikeyta Matthews, Michelle Minor, Brenda Sheffield. (Attachments: # 1 Exhibit Excerpts from Deposition of Juliann Dwares)(Galloni, Tania) (Entered: 03/25/2013)
325 MOTION to Disqualify Plaintiff's Expert Paul DeMuro Testimony by Polk County Sheriff. (Attachments: # 1 Exhibit Transcript of DeMuro 1 of 2, # 2 Exhibit Transcript of DeMuro 2 of 2, # 3 Exhibit)(McKinley, William) (Entered: 03/25/2013)

Case: 8:12-cv-568 As of: 11/17/2017 12:54 PM EST 36 of 54

03/25/2013 03/25/2013 03/25/2013 03/25/2013 03/26/2013 03/27/2013 03/27/2013
04/01/2013
04/01/2013 04/01/2013

326 MOTION to Disqualify Plaintiff's Expert Daphne Glindmeyer Testimony by Polk County Sheriff. (Attachments: # 1 Exhibit)(McKinley, William) (Entered: 03/25/2013)
327 MOTION to supplement Expert Report by Paul DeMuro by Crystal Cuyler, Amy Gage, Terrica Hall, Franky Jean−Pierre, Lisa Jobe, Nikeyta Matthews, Michelle Minor, Brenda Sheffield. (Attachments: # 1 Exhibit Email Correspondence Requesting Production Prior to January Inspection, # 2 Exhibit Email Correspondence Re: Production of Discovery After Completion of Expert Report, # 3 Exhibit Emails Re: Follow Up to Pre−Filing Conference)(Galloni, Tania) (Entered: 03/25/2013)
328 MOTION to supplement Record Before the Court on Plaintiffs' Motions to Certify Class and Sub−Classes by Crystal Cuyler, Amy Gage, Terrica Hall, Franky Jean−Pierre, Lisa Jobe, Nikeyta Matthews, Michelle Minor, Brenda Sheffield. (Galloni, Tania) (Entered: 03/25/2013)
329 MOTION to Compel Discovery from Defendant Judd , MOTION for Discovery by All Plaintiffs. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(Haskell, Miriam) Motions referred to Magistrate Judge Mark A. Pizzo. (Entered: 03/25/2013)
330 ORDER denying motions: 297 −−motion to extend the time to file motions; 301 −−motion for a date certain and to extend trial length; 300 , 302 , 303 , 304 , 305 , 306 , 307 , 308 , 309 , 310 , 311 , 312 , 313 , 314 , 315 , 316 , 317 , 318 , 319 , 320 , 321 , 322 , 323 , 324 , 325 , and 326 −−motions in limine and to disqualify expert testimony; 327 −−motion to supplement an expert report; 328 −−motion to supplement the record for class certification. Signed by Judge Steven D. Merryday on 3/26/2013. (BK) (Entered: 03/26/2013)
331 ORDER denying 115 Plaintiffs' Motion to Seal. See order for details. Signed by Magistrate Judge Mark A. Pizzo on 3/27/2013. (ACS) (Entered: 03/27/2013)
332 REPORT AND RECOMMENDATIONS re 5 Amended MOTION to certify class and Incorporated Memorandum of Law filed by Violene Jean−Pierre, Chanda Hughes, Brenda Sheffield, 35 MOTION to certify class −− subclass filed by Violene Jean−Pierre, Chanda Hughes, Michelle Minor, Crystal Cuyler, Amy Gage, Brenda Sheffield, Lisa Jobe, 4 MOTION for preliminary injunction filed by Violene Jean−Pierre, Chanda Hughes, Brenda Sheffield, 137 MOTION for leave to file Third Amended Complaint MOTION to certify class filed by Franky Jean−Pierre, Michelle Minor, Crystal Cuyler, Nikeyta Matthews, Amy Gage, Brenda Sheffield, Lisa Jobe. Signed by Magistrate Judge Mark A. Pizzo on 3/27/2013. (AS) (Entered: 03/27/2013)
333 RESPONSE in Opposition re 293 MOTION for summary judgment and Memorandum of Law in Support Thereof filed by Crystal Cuyler, Amy Gage, Terrica Hall, Chanda Hughes, Franky Jean−Pierre, Lisa Jobe, Nikeyta Matthews, Michelle Minor. (Attachments: # 1 Exhibit TH Grievance, # 2 Exhibit Bartow Youth Academy description, # 3 Exhibit McRae Deposition Excerpts, # 4 Exhibit NCCHC Website − Standards listing, # 5 Exhibit Jennings Deposition Excerpts, # 6 Exhibit DM Deposition Excerpts, # 7 Exhibit TH2 Deposition Excerpts, # 8 Exhibit JN Declaration, # 9 Exhibit J Allen Deposition Excerpts, # 10 Exhibit KG Medical Record: PL 345, # 11 Exhibit KG Deposition Excerpts, # 12 Exhibit DM Medical Records, # 13 Exhibit Scott Deposition Excerpts, # 14 Exhibit Zimmerman Deposition Excerpts, # 15 Exhibit BG Deposition Excerpts, # 16 Exhibit Scott Report from Coleman v Brown, # 17 Exhibit NCCHC Report, # 18 Exhibit Pass Down Log, # 19 Exhibit KG parental consent form, # 20 Exhibit Hillyard Deposition Excerpts, # 21 Exhibit Cage picture, # 22 Exhibit Corizon Juveniles in Segregation Policy)(Morris, Maria) (Entered: 04/01/2013)
334 MOTION for leave to file Excess Pages for Rsponse to Defendant Judd's Motion for Summary Judgment by All Plaintiffs. (Rindone, Joseph) (Entered: 04/01/2013)
335 RESPONSE in Opposition re 280 MOTION for summary judgment and Incorporated Memorandum of Law, 279 MOTION for summary judgment and Incorporated Memorandum of Law filed by Crystal Cuyler, Amy Gage, Terrica Hall, Franky Jean−Pierre, Lisa Jobe, Nikeyta Matthews, Michelle Minor, Brenda Sheffield. (Galloni, Tania) (Entered: 04/01/2013)

Case: 8:12-cv-568 As of: 11/17/2017 12:54 PM EST 37 of 54

04/01/2013
04/05/2013 04/08/2013 04/08/2013 04/09/2013 04/10/2013 04/10/2013 04/10/2013

336 NOTICE by Crystal Cuyler, Amy Gage, Terrica Hall, Franky Jean−Pierre, Lisa Jobe, Nikeyta Matthews, Michelle Minor re 335 Response in Opposition to Motion for Summary Judgment − Exhibits (Attachments: # 1 Exhibit Excerpt of Lisa Jobe Deposition Transcript, # 2 Exhibit Visitation Booth, # 3 Exhibit Excerpt of K.J. Deposition Transcript, # 4 Exhibit Excerpt of Hester Deposition Transcript, # 5 Exhibit 2/24/12 Police Report, # 6 Exhibit Excerpt of Harrison Deposition Transcript, # 7 Exhibit Excerpt of Hillyard Deposition Transcript, # 8 Exhibit December 2012 Incident Reports − composite, # 9 Exhibit December 2012 Requests for Protective Custody − composite, # 10 Exhibit Excerpt of Russell Deposition Transcript, # 11 Exhibit 11/30/12 Incident Report, # 12 Exhibit Excerpt of Hively Deposition Transcript, # 13 Exhibit Excerpt of D.M. Deposition Transcript, # 14 Exhibit Excerpt of Cranor Deposition Transcript, # 15 Exhibit Excerpt of Gay Deposition Transcript, # 16 Exhibit Excerpt of B.G. Deposition Transcript, # 17 Exhibit Reprimand, # 18 Exhibit Excerpt of F.J.P. Deposition Transcript, # 19 Exhibit Excerpt of K.J. Deposition Transcript, # 20 Exhibit Incident Reports demonstrative force − composite, # 21 Exhibit Excerpt of Cannon Deposition Transcript, # 22 Exhibit Excerpt of Allen Deposition Transcript, # 23 Exhibit DJJ Rule, # 24 Exhibit DeMuro Expert Report 1/31/2013, # 25 Exhibit Glindmeyer Expert Report 1/31/13, # 26 Exhibit Excerpt of T.H.2 Deposition Transcript, # 27 Exhibit Excerpt of Passdown Logbook, # 28 Exhibit DeMuro Expert Report 7/10/12, # 29 Exhibit Glindmeyer Expert Report 7/31/12, # 30 Exhibit Isolation Chart, # 31 Exhibit Excerpt of T.H. Deposition Transcript, # 32 Exhibit Excerpt of D.W. Deposition Transcript, # 33 Exhibit Excerpt of M.H. Deposition Transcript, # 34 Exhibit D.M. Isolation Logs, # 35 Exhibit T.H. Isolation Logs, # 36 Exhibit Excerpt of Smith Deposition Transcript, # 37 Exhibit School Schedule, # 38 Exhibit DeMuro Supplemental Report 3/29/13, # 39 Exhibit FDOC Risk Assessment, # 40 Exhibit Excerpt of Pemberton Deposition, # 41 Exhibit Summary of Classification Data, # 42 Exhibit Excerpt of Glindmeyer Deposition Transcript, # 43 Exhibit Protective Action Reports − composite, # 44 Exhibit Excerpt of Hough Deposition Transcript, # 45 Exhibit DeMuro Rebuttal Report 2/28/13, # 46 Exhibit Excerpt of Marcum Deposition Transcript)(Govindaiah, Manoj) (Entered: 04/01/2013)
337 *DOCUMENT TERMINATED. COUNSEL TO REFILE AS MOTION.* NOTICE by Crystal Cuyler, Amy Gage, Terrica Hall, Chanda Hughes, Franky Jean−Pierre, Lisa Jobe, Nikeyta Matthews, Michelle Minor of Withsrawal of Counsel (Hayden, Donald) Modified on 4/8/2013 (CD). (Entered: 04/05/2013)
338 Unopposed MOTION for miscellaneous relief, specifically Substitute Depo Transcript of T.H. (previously filed as Doc. #294−6) by Corizon Health, Inc.. (Vazquez, Ramon) Modified on 4/8/2013, NOTE: DOCUMENT TERMINATED, counsel refiled as 339 Motion (EJC). (Entered: 04/08/2013)
339 Unopposed MOTION for miscellaneous relief, specifically Substitute depositon Transcript of T.H. (previously filed as Doc. #294−6) by Corizon Health, Inc.. (Attachments: # 1 Reredacted depo transcript of T.H.)(Vazquez, Ramon) (Entered: 04/08/2013)
340 MOTION for leave to file Reply to Plaintiff's Response in Opposition to Corizon's Motion for Summary Judgment by Corizon Health, Inc.. (Vazquez, Ramon) (Entered: 04/09/2013)
341 ENDORSED ORDER granting 334 Motion for Leave to File; granting 278 Motion for Leave to File Excess Pages; denying as moot 281 Motion to extend time. Signed by Magistrate Judge Mark A. Pizzo on 4/10/2013. (AS) (Entered: 04/10/2013)
342 ENDORSED ORDER granting 339 Corizon's unopposed motion to substitute deposition transcript. The redacted deposition transcript is attached to Corizon's motion. The Clerk is directed to remove the unredacted copy from the docket (doc. 294−6) and substitute it with the redacted copy attached to Corizon's motion to substitute (doc. 339−1). Signed by Magistrate Judge Mark A. Pizzo on 4/10/2013. (ACS) (Entered: 04/10/2013)
343 ENDORSED ORDER granting in part 340 Corizon's Motion for Leave to File a Reply. Corizon is permitted to file a reply not to exceed 10 pages. Signed by Magistrate Judge Mark A. Pizzo on 4/10/2013. (ACS) (Entered: 04/10/2013)

Case: 8:12-cv-568 As of: 11/17/2017 12:54 PM EST 38 of 54

04/10/2013 04/12/2013 04/15/2013 04/15/2013 04/15/2013 04/16/2013
04/16/2013 04/16/2013 04/17/2013 04/22/2013 04/22/2013

344 OBJECTION re 332 REPORT AND RECOMMENDATIONS re 5 Amended MOTION to certify class and Incorporated Memorandum of Law filed by Violene Jean−Pierre, Chanda Hughes, Brenda Sheffield, 35 MOTION to certify class −− subclass filed by Violene Jean−Pie (Corizon's Objections to Report and Recommendations). (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Vazquez, Ramon) (Entered: 04/10/2013)
345 RESPONSE to Motion re 329 MOTION to Compel Discovery from Defendant Judd MOTION for Discovery with Incorporated Memorandum of Law filed by Grady Judd. (Attachments: # 1 (Exhibit A−Redacted version to be filed by attorney along with motion to seal/remove from public docket), # 2 Exhibit B, # 3 Exhibit C)(McKinley, William) Modified on 4/15/2013 (RVB). (Entered: 04/12/2013)
346 MOTION for leave to file a Reply to Plaintiff's Response to Defendant's Motion for Summary Judgment by Grady Judd. (McKinley, William) (Entered: 04/15/2013)
347 *DOCUMENT TERMINATED. COUNSEL TO REFILE WITHOUT ATTORNEY NOTES.* OBJECTION re 332 REPORT AND RECOMMENDATIONS re 5 Amended MOTION to certify class and Incorporated Memorandum of Law filed by Violene Jean−Pierre, Chanda Hughes, Brenda Sheffield, 35 MOTION to certify class −− subclass filed by Violene Jean−Pie . (Campbell, Hank) Modified on 4/16/2013 (CD). (Entered: 04/15/2013)
348 OBJECTION re 332 REPORT AND RECOMMENDATIONS re 5 Amended MOTION to certify class and Incorporated Memorandum of Law filed by Violene Jean−Pierre, Chanda Hughes, Brenda Sheffield, 35 MOTION to certify class −− subclass filed by Violene Jean−Pie . (Govindaiah, Manoj) (Entered: 04/16/2013)
349 NOTICE by Crystal Cuyler, Amy Gage, Terrica Hall, Franky Jean−Pierre, Lisa Jobe, Nikeyta Matthews, Michelle Minor re 348 Objection −− Plaintiffs' Exhibits (Attachments: # 1 Exhibit K.J. Deposition Excerpt, # 2 Exhibit Hester Deposition Excerpt, # 3 Exhibit Police Report for T.W., # 4 Exhibit Harrison Deposition Excerpt, # 5 Exhibit Allen Deposition Excerpt, # 6 Exhibit Hillyard Deposition Excerpt, # 7 Exhibit Composite of December 2012 Incident Reports, # 8 Exhibit Hively Deposition Excerpt, # 9 Exhibit Sworn Statements from Paul DeMuro's January 31, 2013 Expert Report, # 10 Exhibit January 31, 2013 Expert Report of Daphne Glindmeyer, # 11 Exhibit Composite of Protective Custody Requests, # 12 Exhibit Russell Deposition Excerpt, # 13 Exhibit November 30, 2012 Incident Report, # 14 Exhibit January 31, 2013 Expert Report of Paul DeMuro, # 15 Exhibit Cannon Deposition Excerpt, # 16 Exhibit July 10, 2012 Expert Report of Paul DeMuro, # 17 Exhibit Mitchell Deposition Excerpt, # 18 Exhibit FMJS Preamble, # 19 Exhibit General Order 1.5, # 20 Exhibit FDOC Risk Assessment Form, # 21 Exhibit Glindmeyer Deposition Excerpt, # 22 Exhibit Sworn Statement of S.R., # 23 Exhibit Excessive Force Incidents, # 24 Exhibit D.M. Deposition Excerpt, # 25 Exhibit Cranor Deposition Excerpt, # 26 Exhibit F.J.P. Deposition Excerpt, # 27 Exhibit K.G. Deposition Excerpt, # 28 Exhibit March 29, 2013 Supplemental Report of Paul DeMuro, # 29 Exhibit Captain Marcum Memorandum)(Govindaiah, Manoj) (Entered: 04/16/2013)
350 OBJECTION re 332 REPORT AND RECOMMENDATIONS re 5 Amended MOTION to certify class and Incorporated Memorandum of Law filed by Violene Jean−Pierre, Chanda Hughes, Brenda Sheffield, 35 MOTION to certify class −− subclass filed by Violene Jean−Pie . (Campbell, Hank) (Entered: 04/16/2013)
351 ENDORSED ORDER granting 346 Defendant Judd's Motion for Leave to File a Reply not to exceed 10 pages. Signed by Magistrate Judge Mark A. Pizzo on 4/16/2013. (ACS) (Entered: 04/16/2013)
352 Unopposed MOTION for miscellaneous relief, specifically Substitute Exhibits and Transcripts by Grady Judd. (McKinley, William) (Entered: 04/17/2013)
353 MOTION for leave to file a Reply to Defendant Judd's Response to Plaintiffs' Motion to Compel Discovery by All Plaintiffs. (Rindone, Joseph) (Entered: 04/22/2013)
354 *DOCUMENT STRICKEN PURSUANT TO 384 ORDER. ALL IMAGES REMOVED.* REPLY to Response to Motion re 293 MOTION for summary judgment and Memorandum of Law in Support Thereof filed by Corizon Health, Inc.. (Attachments: # 1 Depo of N M, # 2 Excerpts of Depo of M H, # 3 Excerpts of Depo of D W)(Vazquez, Ramon) Modified on 4/23/2013 *EXHIBIT 1− DEPO OF N M

Case: 8:12-cv-568 As of: 11/17/2017 12:54 PM EST 39 of 54

04/23/2013 04/23/2013 04/26/2013 04/26/2013 04/26/2013 04/26/2013 04/29/2013 04/29/2013
04/30/2013 04/30/2013 04/30/2013 05/01/2013

HAS BEEN TERMINATED & IMAGE REMOVED. COUNSEL TO FILE AS DEPOSITION* (CD). Modified on 5/7/2013 (CD). (Entered: 04/22/2013)
355 *DOCUMENT STRICKEN PURSUANT TO 384 ORDER. ALL IMAGES REMOVED.* DEPOSITION of N M taken June 22, 2012 by Corizon Health, Inc. re 354 Reply to Response to Motion (Attachments: # 1 Deposition Transcript of N M)(Vazquez, Ramon) Modified on 4/24/2013 (CD). Modified on 5/7/2013 (CD). (Entered: 04/23/2013)
356 ENDORSED ORDER denying 353 the plaintiffs' motion for leave to file a reply. Signed by Judge Steven D. Merryday on 4/23/2013. (Entered: 04/23/2013)
357 ENDORSED ORDER granting 352 the defendant Judd's motion to substitute certain identified exhibits and transcript pages and correct certain inadvertent errors in the record. Signed by Judge Steven D. Merryday on 4/26/2013. (Entered: 04/26/2013)
358 ENDORSED ORDER denying as moot 279 defendant Judd's motion for summary judgment, which is superseded by Doc. 280. Signed by Judge Steven D. Merryday on 4/26/2013. (Entered: 04/26/2013)
359 MOTION for Joseph J. Mamounas to withdraw as attorney by All Plaintiffs. (Hayden, Donald) (Entered: 04/26/2013)
360 Unopposed MOTION for miscellaneous relief, specifically to Add Exhibits and Correct Citation by Crystal Cuyler, Amy Gage, Terrica Hall, Franky Jean−Pierre, Lisa Jobe, Nikeyta Matthews, Michelle Minor, Brenda Sheffield. (Govindaiah, Manoj) (Entered: 04/26/2013)
361 ENDORSED ORDER granting 359 the motion to withdraw. Attorney Joseph Mamounas is terminated. Signed by Judge Steven D. Merryday on 4/29/2013. (Entered: 04/29/2013)
362 RESPONSE to objections to 332 Report and Recommendations (objections by Defendant Corizon) filed by Crystal Cuyler, Amy Gage, Terrica Hall, Lisa Jobe, Nikeyta Matthews, Michelle Minor, Brenda Sheffield. (Attachments: # 1 Exhibit Deposition Excerpt of Dr. Daphne Glindmeyer, # 2 Exhibit Supplemental Report of Dr. Daphne Glindmeyer, # 3 Exhibit Deposition Excerpt of Dr. Joseph Penn, # 4 Exhibit Deposition Excerpt of Dr. Charles Scott, # 5 Exhibit Deposition Excerpt of Derek Zimmerman, # 6 Exhibit Deposition Excerpt of B.G., # 7 Exhibit Deposition Excerpt of D.M., # 8 Exhibit Deposition Excerpt of T.H., # 9 Exhibit Deposition Excerpt of J.D., # 10 Exhibit Deposition Excerpt of K.G., # 11 Exhibit CMS Segregation Policy, # 12 Exhibit Deposition Excerpt of Jennifer Allen, # 13 Exhibit Sworn Statement of T.H., # 14 Exhibit Deposition Excerpt of D.W.)(Haskell, Miriam) (Entered: 04/29/2013)
363 Unopposed MOTION to Reschedule Pre−Trial Conference , Unopposed MOTION for miscellaneous relief, specifically to Re−Schedule Pre−Trial Conference by Corizon Health, Inc. (Attachments: # 1 Exhibit A)(Wallace, Philip) Modified on 5/1/2013 (CD). (Entered: 04/30/2013)
364 ORDER overruling 348 , 344 , and 350 −−objections; adopting 332 −−REPORT AND RECOMMENDATIONS only to the extent and in the manner stated in the order; denying 4 −−plaintiffs' motion for preliminary injunction; granting 2 , 5 , and 35 −−plaintiffs' motions to certify a class only to the extent and in the manner stated in the order. Signed by Judge Steven D. Merryday on 4/30/2013. (BK) (Entered: 04/30/2013)
365 ORDER re footnote 35 on page 36 of 332 −−REPORT AND RECOMMENDATIONS; directing the submission of briefs. See order for page limitation and due dates. Signed by Judge Steven D. Merryday on 4/30/2013. (BK) (Entered: 04/30/2013)
366 ENDORSED ORDER denying 363 Corizon's motion to continue the pre−trial conference. The docket reveals three, self−declared "lead counsel" (and a fourth counsel) for Corizon, each from the same firm. Attorney Philip Wallace is excused from attending the pre−trial conference, at which another of the listed counsel can represent Corizon. Finally, the motion to continue, which appears on the docket as "ex parte," contains a certificate of service on all counsel. The clerk is directed to delete the erroneous "ex parte" status of the motion. Signed by Judge Steven D. Merryday on

Case: 8:12-cv-568 As of: 11/17/2017 12:54 PM EST 40 of 54

05/02/2013 05/02/2013
05/02/2013 05/03/2013 05/03/2013 05/03/2013 05/03/2013 05/03/2013 05/03/2013 05/03/2013 05/03/2013 05/03/2013 05/03/2013 05/03/2013 05/03/2013

5/1/2013. (Merryday, Steven) (Entered: 05/01/2013)
367 ORDER granting in part and denying in part 329 Motion to Compel discovery responses; granting in part and denying in part 329 motion for discovery. Signed by Magistrate Judge Mark A. Pizzo on 5/2/2013. (DK) (Entered: 05/02/2013)
368 NOTICE by Grady Judd Notice of Filing Substitute Exhibits and Transcript Pages (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5 − Part 1 of 2, # 6 Exhibit 5 − Part 2 of 2, # 7 Exhibit 6 − Part 1 of 2, # 8 Exhibit 6 − Part 2 of 2, # 9 Exhibit 7, # 10 Exhibit 8, # 11 Exhibit 9, # 12 Exhibit 10)(McKinley, William) *IMAGES FOR EXHIBIT 1, EXHIBIT 2, EXHIBIT 3, EXHIBIT 4, EXHIBIT 5 PART 1 OF 2, EXHIBIT 5 PART 2 OF 2, EXHIBIT 6 PART 1 OF 2, EXHIBIT 6 PART 2 OF 2 HAVE BEEN REMOVED BY CLERK. COUNSEL TO FILE EACH EXHIBIT PROPERLY USING THE CODE FOR DEPOSITION.* Modified on 5/3/2013 (CD). (Entered: 05/02/2013)
369 ORDER: On May 6, 2013, after Magistrate Judge Pizzo recesses the pre−trial conference, Judge Merryday will continue the pre−trial conference and hear argument on the pending motions for summary judgment (Docs. 280 and 293 ) in Courtroom 15A. Signed by Judge Steven D. Merryday on 5/2/2013.(BK) (Entered: 05/02/2013)
370 DEPOSITION of Captain Kimberly Marcum taken on 07/24/2012 re 280 MOTION for summary judgment and Incorporated Memorandum of Law . (McKinley, William) (Entered: 05/03/2013)
371 DEPOSITION of Major Michael Allen taken on 07/23/2012 re 280 MOTION for summary judgment and Incorporated Memorandum of Law . (McKinley, William) (Entered: 05/03/2013)
372 DEPOSITION of B.G. taken on 06/20/2012 re 280 MOTION for summary judgment and Incorporated Memorandum of Law . (McKinley, William) (Entered: 05/03/2013)
373 DEPOSITION of K.J. taken on 06/26/2012 re 280 MOTION for summary judgment and Incorporated Memorandum of Law . (McKinley, William) (Entered: 05/03/2013)
374 DEPOSITION of K.G. taken on 06/26/2012 re 280 MOTION for summary judgment and Incorporated Memorandum of Law . (Attachments: # 1 continuation)(McKinley, William) (Entered: 05/03/2013)
375 NOTICE of Appearance by Jennifer Megan Vasquez on behalf of Grady Judd (Vasquez, Jennifer) (Entered: 05/03/2013)
376 DEPOSITION of Bobbi Jo Bender taken on 03/05/2013 re 280 MOTION for summary judgment and Incorporated Memorandum of Law . (Attachments: # 1 continuation)(McKinley, William) (Entered: 05/03/2013)
377 Unopposed MOTION for Writ of Habeas Corpus ad testificandum by Crystal Cuyler, Amy Gage, Terrica Hall, Lisa Jobe, Nikeyta Matthews, Michelle Minor, Brenda Sheffield. (Haskell, Miriam) Motions referred to Magistrate Judge Mark A. Pizzo. (Entered: 05/03/2013)
378 REPLY to Response to Motion re 280 MOTION for summary judgment and Incorporated Memorandum of Law filed by Grady Judd. (Campbell, Hank) (Entered: 05/03/2013)
379 NOTICE by Grady Judd re 378 Reply to Response to Motion of Filing Supporting Exhibits (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F)(Campbell, Hank) (Entered: 05/03/2013)
380 MOTION to Compel 30(b)(6) Deposition of Defendant Corizon Witnesses by Crystal Cuyler, Amy Gage, Terrica Hall, Lisa Jobe, Nikeyta Matthews, Michelle Minor, Brenda Sheffield. (Haskell, Miriam) Motions referred to Magistrate Judge Mark A. Pizzo. (Entered: 05/03/2013)
381 MOTION for protective order to Protect Privacy of Class Members and Other Youths by All Plaintiffs. (Morris, Maria) Motions referred to Magistrate Judge Mark A. Pizzo. (Entered: 05/03/2013)

Case: 8:12-cv-568 As of: 11/17/2017 12:54 PM EST 41 of 54

05/06/2013 05/07/2013 05/07/2013
05/08/2013 05/09/2013 05/10/2013 05/10/2013 05/13/2013
05/13/2013
05/13/2013 05/14/2013 05/14/2013 05/15/2013 05/15/2013 05/15/2013

382 Minute Entry for Proceedings held before Judge Steven D. Merryday: on 5/6/2013. Court Reporter: Linda Starr, Claudia Spangler−Fry (TKD) (Entered: 05/06/2013)
383 ORDER directing parties to resume mediation with Peter J. Grilli. Signed by Judge Steven D. Merryday on 5/7/2013. (TKD) (Entered: 05/07/2013)
384 Pretrial Order and Order granting 377 Plaintiffs' Unopposed Motion for Writ of Habeas Corpus ad testificandum; granting in part and denying in part 380 Plaintiffs' Motion to Compel ; denying as moot 381 Plaintiffs' Motion for Protective Order. See order for details and pretrial deadlines. Signed by Magistrate Judge Mark A. Pizzo on 5/7/2013. (ACS) (Entered: 05/07/2013)
385 Minute Entry. Proceedings held before Magistrate Judge Mark A. Pizzo: FINAL PRETRIAL CONFERENCE and motion hearing held on 5/6/2013. (digital and court reporter) (ACS) Modified date on 5/17/2013 (EJC). (Entered: 05/08/2013)
386 Unopposed MOTION for leave to file under seal Writs of Habeas Corpus Ad Testificandum by Crystal Cuyler, Amy Gage, Terrica Hall, Lisa Jobe, Nikeyta Matthews, Michelle Minor, Brenda Sheffield. (Haskell, Miriam) (Entered: 05/09/2013)
387 NOTICE of mediation conference/hearing to be held on May 14, 2013 at 10:00 AM before Peter J. Grilli. (Galloni, Tania) (Entered: 05/10/2013)
388 DEFENDANT'S BRIEF re 365 Order Statutory Issue filed by Grady Judd. (Campbell, Hank) (Entered: 05/10/2013)
389 TRANSCRIPT of Hearing held on 5/6/13 before Judge Steven D. Merryday. Court Reporter Claudia Spangler−Fry,Telephone number 813−301−5575. Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER or purchased through the Court Reporter. Redaction Request due 6/3/2013, Redacted Transcript Deadline set for 6/13/2013, Release of Transcript Restriction set for 8/12/2013. (CS) (Entered: 05/13/2013)
390 NOTICE to counsel of filing of OFFICIAL TRANSCRIPT. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days. Any party needing a copy of the transcript to review for redaction purposes may purchase a copy from the court reporter or view the document at the clerk's office public terminal. Court Reporter: Claudia Spangler−Fry (CS) (Entered: 05/13/2013)
391 ORDER granting 386 Motion to Seal. See order for details. Signed by Magistrate Judge Mark A. Pizzo on 5/13/2013. (ACS) (Entered: 05/13/2013)
392 MOTION for Sheila Bedi to withdraw as attorney by Crystal Cuyler, Amy Gage, Terrica Hall, Franky Jean−Pierre, Lisa Jobe, Nikeyta Matthews, Michelle Minor. (Govindaiah, Manoj) (Entered: 05/14/2013)
393 MOTION to extend time to May 21, 2013 re Order [Doc. 367] by Grady Judd. (McKinley, William) (Entered: 05/14/2013)
394 SUPPLEMENT re 393 MOTION to extend time to May 21, 2013 re Order [Doc. 367] by Grady Judd. (McKinley, William) (Entered: 05/15/2013)
395 ORDER denying without prejudice 392 −−motion to withdraw as attorney; directing the Clerk to SEND this order to Sheila Bedi's registered address with the Mississippi State Bar. Signed by Judge Steven D. Merryday on 5/15/2013. (BK) (Entered: 05/15/2013)
400 TRANSCRIPT of Final Pretrial Conference held on 5/6/13 before Magistrate Judge Mark A. Pizzo. Court Reporter/Transcriber Deborah Guest (Beth Leto Court Reporting),Telephone number (813) 695−0560. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER or purchased through the Court Reporter. Redaction Request due 6/5/2013, Redacted Transcript Deadline set for 6/17/2013, Release of Transcript Restriction set for 8/13/2013. (EJC) (Entered: 05/17/2013)

Case: 8:12-cv-568 As of: 11/17/2017 12:54 PM EST 42 of 54

05/15/2013
05/16/2013 05/16/2013 05/17/2013 05/17/2013 05/17/2013
05/17/2013 05/20/2013 05/20/2013
05/20/2013
05/21/2013 05/21/2013 05/21/2013 05/22/2013

401 NOTICE to counsel of filing of OFFICIAL TRANSCRIPT. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days. Any party needing a copy of the transcript to review for redaction purposes may purchase a copy from the court reporter or view the document at the clerk's office public terminal. Court Reporter: Deborah Guest (Beth R. Leto, Court Reporting). (EJC) (Entered: 05/17/2013)
396 ENDORSED ORDER granting 360 the plaintiffs' unopposed motion to add exhibits and citations to the motion for summary judgment (Doc. 335). Signed by Judge Steven D. Merryday on 5/16/2013. (Entered: 05/16/2013)
397 ORDER withdrawing the reference (Doc. 298 ) to the magistrate judge of Docs. 279 , 280 , and 293 . Signed by Judge Steven D. Merryday on 5/16/2013. (BK) (Entered: 05/16/2013)
398 ENDORSED ORDER granting 393 Motion to extend time. Signed by Magistrate Judge Mark A. Pizzo on 5/17/2013. (Pizzo, Mark) (Entered: 05/17/2013)
399 MOTION to Continue Trial and Request for Expedited Hearing by Crystal Cuyler, Amy Gage, Terrica Hall, Franky Jean−Pierre, Lisa Jobe, Nikeyta Matthews, Michelle Minor, Brenda Sheffield. (Attachments: # 1 Exhibit Composite Exhibit of Correspondence)(Galloni, Tania) (Entered: 05/17/2013)
402 NOTICE by Crystal Cuyler, Amy Gage, Terrica Hall, Franky Jean−Pierre, Lisa Jobe, Nikeyta Matthews, Michelle Minor re 335 Response in Opposition to Motion Filing of Additional Exhibits and Corrected Citation (Attachments: # 1 Exhibit Sworn Statement of B.M., # 2 Exhibit Sworn Statement of K.B., # 3 Exhibit Sworn Statement of J.J.J., # 4 Main Document Substituted page 40)(Govindaiah, Manoj) (Entered: 05/17/2013)
403 PLAINTIFF'S BRIEF re 388 Brief − Defendant Grady Judd's Brief Regarding Use of Pepper Spray filed by Crystal Cuyler, Amy Gage, Terrica Hall, Chanda Hughes, Franky Jean−Pierre, Violene Jean−Pierre, Lisa Jobe, Nikeyta Matthews, Michelle Minor, Anita Nava, Brenda Sheffield. (Hayden, Donald) (Entered: 05/17/2013)
404 ORDER directing Grady Judd to respond by 5:00 p.m. on May 21, 2013 to 399 −−motion to continue trial. Signed by Judge Steven D. Merryday on 5/20/2013. (BK) (Entered: 05/20/2013)
405 RESPONSE re 333 Response in Opposition to Motion Redacted replacement for docket #354 pursuant to Order dated 5/7/13 docket#384 filed by Corizon Health, Inc.. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit)(Vazquez, Ramon) *IMAGE FOR EXHIBIT 1 HAS BEEN REMOVED. COUNSEL TO REDACT AND FILE USING PROPER CODE OF DEPOSITION.* Modified on 5/21/2013 (CD). (Entered: 05/20/2013)
406 *DOCUMENT TERMINATED AND IMAGE REMOVED. COUNSEL TO FILE REDACTED COPY OF DEPOSITION USING THE PROPER EVENT CODE OF DEPOSITION.* NOTICE by Corizon Health, Inc. re 384 Order on Motion for Writ of Habeas Corpus ad testificandumOrder on motion to compelOrder on Motion for Protective Order, 355 Notice (Other) Replacing Document #355 pursuant to Court's Order dated 5/7/13 docket#384 (Attachments: # 1 Exhibit)(Vazquez, Ramon) Modified on 5/21/2013 (CD). (Entered: 05/20/2013)
407 RESPONSE in Opposition re 399 MOTION to Continue Trial and Request for Expedited Hearing filed by Grady Judd. (Attachments: # 1 Exhibit A)(McKinley, William) (Entered: 05/21/2013)
408 NOTICE by Corizon Health, Inc. re 407 Response in Opposition to Motion for Brief Continuance of Trial (Wallace, Philip) (Entered: 05/21/2013)
409 DEPOSITION of Nikeyta Matthews taken on 06/22/2012 re 354 Reply to Response to Motion for summary judgment. (Vazquez, Ramon) (Entered: 05/21/2013)
410 *DOCUMENT TERMINATED. COUNSEL TO FILE IN COMPLIANCE WITH ADMINISTRATIVE PROCEDURES.* NOTICE by Corizon Health, Inc. re 407

Case: 8:12-cv-568 As of: 11/17/2017 12:54 PM EST 43 of 54

05/22/2013 05/22/2013 05/24/2013
05/28/2013 05/28/2013 05/28/2013 05/28/2013 05/28/2013 05/29/2013 05/31/2013
05/31/2013 05/31/2013 06/03/2013 06/03/2013
06/04/2013 06/04/2013 06/04/2013

Response in Opposition to Motion Amended Notice of Joinder to Response in Opposition to Plaintiff's Motion for Brief Continuance (Wallace, Philip) Modified on 5/22/2013 (CD). (Entered: 05/22/2013)
411 ORDER granting 399 −−motion to continue to the extent described in the order. The trial will occur no earlier than June 10, 2013. Signed by Judge Steven D. Merryday on 5/22/2013. (BK) (Entered: 05/22/2013)
412 NOTICE by Corizon Health, Inc. Second Amended Notice of Joinder (Wallace, Philip) (Entered: 05/22/2013)
413 OBJECTION re 384 Order on Motion for Writ of Habeas Corpus ad testificandumOrder on motion to compelOrder on Motion for Protective Order Regarding Order Finding Motion for Protective Order Moot. (Morris, Maria) (Entered: 05/24/2013)
414 Unopposed MOTION to allow electronic equipment, specifically Electronic Devices by Grady Judd. (McKinley, William) (Entered: 05/28/2013)
415 Unopposed MOTION for miscellaneous relief, specifically Allow Attorneys to Bring Electronic Devices into Courtroom by All Plaintiffs. (Hayden, Donald) (Entered: 05/28/2013)
416 OBJECTIONS to Plaintiffs' Deposition Designations filed by Grady Judd. (Attachments: # 1 Exhibit A)(Vasquez, Jennifer) Modified on 5/29/2013 (CD). (Entered: 05/28/2013)
417 Unopposed MOTION to allow electronic equipment, specifically laptops, iPads and smartphones by Corizon Health, Inc.. (Wallace, Philip) (Entered: 05/28/2013)
418 NOTICE by Grady Judd of Cross−Designations (Vasquez, Jennifer) (Entered: 05/28/2013)
419 NOTICE by Corizon Health, Inc. re 416 Notice (Other) Notice of Joinder in Grady Judd's Objection to Using Depositions of Certain Witnesses (Wallace, Philip) (Entered: 05/29/2013)
420 MOTION for Discovery and Information Necessary to Serve Subpoenas upon Witnesses to Testify at Trial by All Plaintiffs. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(Rindone, Joseph) Motions referred to Magistrate Judge Mark A. Pizzo. (Entered: 05/31/2013)
421 TRIAL CALENDAR for June, 2013, trial term. Signed by Judge Steven D. Merryday on 5/31/2013. (TKD) (Entered: 05/31/2013)
422 NOTICE of Appearance by Jennifer L. Phillips on behalf of Corizon Health, Inc. (Phillips, Jennifer) (Entered: 05/31/2013)
423 MOTION for Reconsideration re 411 Order on Motion to Continue by Corizon Health, Inc.. (Phillips, Jennifer) (Entered: 06/03/2013)
424 MOTION to quash Trial Subpoenas of SPLC Legal Staff Lubia Rodriguez and Ashley Midkiff, and Motion for Protective Order and Sanctions by Crystal Cuyler, Amy Gage, Terrica Hall, Franky Jean−Pierre, Lisa Jobe, Nikeyta Matthews, Michelle Minor. (Attachments: # 1 Exhibit A: Rodriguez Subpoena, # 2 Exhibit B: Midkiff Subpoena)(Morris, Maria) (Entered: 06/03/2013)
425 JOINDER in motion by Grady Judd re 423 MOTION for Reconsideration re 411 Order on Motion to Continue filed by Corizon Health, Inc. . (McKinley, William) (Entered: 06/04/2013)
426 ENDORSED ORDER ruling deferred 424 Plaintiffs' Motion to Quash. Defendants shall file any response to Plaintiffs' motion by 4pm on Friday, June 7, 2013. Signed by Magistrate Judge Mark A. Pizzo on 6/4/2013. (ACS) (Entered: 06/04/2013)
427 ENDORSED ORDER ruling deferred 420 Plaintiffs' motion for discovery. Defendants shall file any response by 4 pm on Friday, June 7, 2013. Signed by Magistrate Judge Mark A. Pizzo on 6/4/2013. (ACS) (Entered: 06/04/2013)

Case: 8:12-cv-568 As of: 11/17/2017 12:54 PM EST 44 of 54

06/05/2013
06/07/2013 06/07/2013
06/07/2013 06/07/2013 06/10/2013 06/10/2013 06/10/2013 06/10/2013 06/11/2013 06/12/2013 06/12/2013 06/12/2013
06/13/2013 06/14/2013 06/14/2013

428 SUPPLEMENT re 420 MOTION for Discovery and Information Necessary to Serve Subpoenas upon Witnesses to Testify at Trial by Crystal Cuyler, Amy Gage, Terrica Hall, Chanda Hughes, Franky Jean−Pierre, Violene Jean−Pierre, Lisa Jobe, Nikeyta Matthews, Michelle Minor, Anita Nava, Brenda Sheffield. (Rindone, Joseph) (Entered: 06/05/2013)
429 RESPONSE to Motion re 420 MOTION for Discovery and Information Necessary to Serve Subpoenas upon Witnesses to Testify at Trial filed by Grady Judd. (McKinley, William) (Entered: 06/07/2013)
430 RESPONSE in Opposition re 424 MOTION to quash Trial Subpoenas of SPLC Legal Staff Lubia Rodriguez and Ashley Midkiff, and Motion for Protective Order and Sanctions filed by Grady Judd. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I)(McKinley, William) (Entered: 06/07/2013)
431 RESPONSE to Motion re 424 MOTION to quash Trial Subpoenas of SPLC Legal Staff Lubia Rodriguez and Ashley Midkiff, and Motion for Protective Order and Sanctions filed by Corizon Health, Inc.. (Wallace, Philip) (Entered: 06/07/2013)
432 RESPONSE to Motion re 420 MOTION for Discovery and Information Necessary to Serve Subpoenas upon Witnesses to Testify at Trial filed by Corizon Health, Inc.. (Wallace, Philip) (Entered: 06/07/2013)
433 MOTION for leave to file Reply to Defendant Judd's Response in Opposition to Plaintiffs' Motion to Quash Trial Subpoenas (Doc. 430) by Crystal Cuyler, Amy Gage, Terrica Hall, Franky Jean−Pierre, Lisa Jobe, Nikeyta Matthews, Michelle Minor, Brenda Sheffield. (Galloni, Tania) (Entered: 06/10/2013)
434 ORDER denying as moot 420 Plaintiffs' motion for discovery. See order for details. Signed by Magistrate Judge Mark A. Pizzo on 6/10/2013. (ACS) (Entered: 06/10/2013)
435 ENDORSED ORDER denying 433 Plaintiffs' Motion for Leave to File Reply. Signed by Magistrate Judge Mark A. Pizzo on 6/10/2013. (ACS) (Entered: 06/10/2013)
436 ORDER denying 424 Plaintiffs' Motion to Quash. See order for details. Signed by Magistrate Judge Mark A. Pizzo on 6/10/2013. (ACS) (Entered: 06/10/2013)
437 MEDIATION report Hearing held on May 14, 2013. Hearing outcome: The parties have reached an impasse.. (Grilli, Peter) (Entered: 06/11/2013)
438 ORDER denying 280 −−motion for summary judgment; denying 293 −−motion for summary judgment; denying 423 and 425 −−motions for reconsideration re Doc. 411 . Signed by Judge Steven D. Merryday on 6/12/2013. (BK) (Entered: 06/12/2013)
439 ORDER granting in part and denying in part 414 , 415 , and 417 −−motions re electronic equipment. Signed by Judge Steven D. Merryday on 6/12/2013. (BK) (Entered: 06/12/2013)
440 RESPONSE re 416 Notice (Other), 419 Notice (Other) to Defendants' Objections to Plaintiffs' Deposition Designations filed by Crystal Cuyler, Amy Gage, Terrica Hall, Franky Jean−Pierre, Lisa Jobe, Nikeyta Matthews, Michelle Minor, Brenda Sheffield. (Attachments: # 1 Exhibit A − Bartow Youth Academy web page, # 2 Exhibit B − Dr. Bazini Letter, # 3 Exhibit C − DM Admission Card, # 4 Exhibit D − Mileage to Okeechobee)(Morris, Maria) (Entered: 06/12/2013)
441 *DOCUMENT TERMINATED. DOCUMENT IS NOT SIGNED. COUNSEL TO REFILE IN COMPLIANCE WITH ADMINISTRATIVE PROCEDURES.* MOTION for Reconsideration Decertification of Sub−Class by Corizon Health, Inc.. (Telan, Patrick) Modified on 6/14/2013 (CD). (Entered: 06/13/2013)
442 ORDER: Trial begins 6/19/2013 at 09:30 AM in Tampa Courtroom 15A before Judge Steven D. Merryday. Signed by Judge Steven D. Merryday on 6/14/2013. (BK) (Entered: 06/14/2013)
443 MOTION for Reconsideration by Corizon Health, Inc.. (Telan, Patrick) (Entered: 06/14/2013)

Case: 8:12-cv-568 As of: 11/17/2017 12:54 PM EST 45 of 54

06/15/2013 06/16/2013 06/17/2013 06/18/2013 06/18/2013 06/18/2013
06/21/2013 07/01/2013
07/03/2013 07/10/2013
07/10/2013
07/16/2013 07/16/2013
07/17/2013

444 Unopposed MOTION for Sheila Bedi to withdraw as attorney by Crystal Cuyler, Amy Gage, Terrica Hall, Franky Jean−Pierre, Lisa Jobe, Nikeyta Matthews, Michelle Minor, Brenda Sheffield. (Galloni, Tania) (Entered: 06/15/2013)
445 Unopposed MOTION for miscellaneous relief, specifically to Transport JP and OR by Crystal Cuyler, Amy Gage, Terrica Hall, Lisa Jobe, Nikeyta Matthews, Michelle Minor, Brenda Sheffield. (Haskell, Miriam) (Entered: 06/16/2013)
446 MOTION for leave to file Motion in Limine by All Plaintiffs. (Rindone, Joseph) (Entered: 06/17/2013)
447 ENDORSED ORDER granting 444 −−motion by Sheila Bedi to withdraw as counsel for the plaintiffs. Signed by Judge Steven D. Merryday on 6/18/2013. (BK) (Entered: 06/18/2013)
448 RESPONSE to Motion re 446 MOTION for leave to file Motion in Limine filed by Corizon Health, Inc.. (Telan, Patrick) (Entered: 06/18/2013)
449 MINUTE ENTRY of 6/18/2013 hearing on pending motions conducted by Judge Steven D. Merryday. Argument re 443 −−motion for reconsideration, 445 −−unopposed motion to transport witnesses, and 446 −−motion for leave to file motion in limine. Trial is continued sine die. Court Reporter: Bill Jones (BK) (Entered: 06/18/2013)
450 TRIAL CALENDAR for the July, 2013, trial term. Signed by Judge Steven D. Merryday on 6/21/2013. (TKD) (Entered: 06/21/2013)
451 RESPONSE in Opposition re 443 MOTION for Reconsideration filed by Crystal Cuyler, Amy Gage, Terrica Hall, Franky Jean−Pierre, Lisa Jobe, Nikeyta Matthews, Michelle Minor, Brenda Sheffield. (Attachments: # 1 Exhibit − Supplemental Report of Dr. Daphne Glindmeyer, # 2 Exhibit − Declaration of Dr. Daphne Glindmeyer)(Galloni, Tania) (Entered: 07/01/2013)
452 MOTION for Hearing and/or Motion to File Reply to Plaintiff's' Response in Opposition to Defendant, Corizon's Motion to DeCertify the Second Sub−Class by Corizon Health, Inc.. (Phillips, Jennifer) (Entered: 07/03/2013)
453 TRANSCRIPT of Telephonic Conference held on 06−18−13 before Judge Steven D. Merryday. Court Reporter/Transcriber Bill Jones,Telephone number 813−301−5024. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER or purchased through the Court Reporter. Redaction Request due 7/31/2013, Redacted Transcript Deadline set for 8/12/2013, Release of Transcript Restriction set for 10/8/2013. (HWJ) (Entered: 07/10/2013)
454 NOTICE to counsel of filing of OFFICIAL TRANSCRIPT. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days. Any party needing a copy of the transcript to review for redaction purposes may purchase a copy from the court reporter or view the document at the clerk's office public terminal. Court Reporter: Bill Jones (HWJ) (Entered: 07/10/2013)
455 MOTION for miscellaneous relief, specifically New Scheduling Order and Trial Date in Light of Reported Changes at Polk County Jail (partially unopposed) by Crystal Cuyler, Amy Gage, Terrica Hall, Lisa Jobe, Nikeyta Matthews, Michelle Minor, Brenda Sheffield. (Haskell, Miriam) (Entered: 07/16/2013)
456 ORDER: setting a status conference and motion hearing for 7/31/2013 at 10:00 A.M. in Courtroom 15A; response to Doc. 455 due 7/26/2013 at 5:00 P.M.; granting 452 −−moton for a hearing; denying 452 −−motion to file a reply; granting in part 446 −−motion for leave to file a motion in limine; denying without prejudice 445 −−motion to transport. Signed by Judge Steven D. Merryday on 7/16/2013. (BK) (Entered: 07/16/2013)
457 Unopposed MOTION for miscellaneous relief, specifically to release witnesses A.A. and D.W. from writs of habeas corpus ad testificandum by Crystal Cuyler, Amy Gage, Terrica Hall, Lisa Jobe, Nikeyta Matthews, Michelle Minor, Brenda Sheffield.

Case: 8:12-cv-568 As of: 11/17/2017 12:54 PM EST 46 of 54

07/18/2013 07/22/2013 07/26/2013
07/26/2013
07/31/2013 07/31/2013 08/02/2013
08/13/2013 08/14/2013 08/23/2013
08/30/2013 08/30/2013
10/08/2013
10/09/2013 10/16/2013 10/17/2013

(Attachments: # 1 Text of Proposed Order)(Haskell, Miriam) (Entered: 07/17/2013)
458 ORDER granting 457 −−motion to release witnesses from writs. Signed by Judge Steven D. Merryday on 7/18/2013. (BK) (Entered: 07/18/2013)
459 RESPONSE re 442 Order Setting Hearing filed by Corizon Health, Inc.. (Telan, Patrick) (Entered: 07/22/2013)
460 RESPONSE to Motion re 455 MOTION for miscellaneous relief, specifically New Scheduling Order and Trial Date in Light of Reported Changes at Polk County Jail (partially unopposed) filed by Corizon Health, Inc.. (Phillips, Jennifer) (Entered: 07/26/2013)
461 RESPONSE in Opposition re 455 MOTION for miscellaneous relief, specifically New Scheduling Order and Trial Date in Light of Reported Changes at Polk County Jail (partially unopposed) filed by Grady Judd. (Attachments: # 1 Exhibit A1, # 2 Exhibit A2, # 3 Exhibit B)(Campbell, Hank) (Entered: 07/26/2013)
462 Minute Entry. Proceedings held before Judge Steven D. Merryday on 7/31/2013. Court Reporter: Bill Jones (TKD) (Entered: 07/31/2013)
463 NOTICE of supplemental authority by Grady Judd (Attachments: # 1 Exhibit A)(McKinley, William) (Entered: 07/31/2013)
464 ORDER denying without prejudice 443 −−motion for reconsideration; overruling 461 −−objections to document production (3/1−7/1); granting in part and denying in part 455 −−motion regarding scheduling; SEE ORDER FOR PARTICULARS AND DEADLINES; scheduling trial to commence on 11/18/2013 at 9:00 a.m. Signed by Judge Steven D. Merryday on 8/2/2013. (BK) (Entered: 08/02/2013)
465 MOTION for clarification re 464 Order on Motion for ReconsiderationOrder on Motion for Miscellaneous Relief Partially Unopposed by Grady Judd. (McKinley, William) (Entered: 08/13/2013)
466 ORDER granting in part and denying in part 465 Motion for clarification. Signed by Judge Steven D. Merryday on 8/14/2013. (TKD) (Entered: 08/14/2013)
467 PLAINTIFF'S BRIEF re 464 Order on Motion for ReconsiderationOrder on Motion for Miscellaneous Relief Plaintiffs' Proposal of Alternative Subclass Definition filed by Crystal Cuyler, Amy Gage, Terrica Hall, Lisa Jobe, Nikeyta Matthews, Michelle Minor, Brenda Sheffield. (Attachments: # 1 Exhibit A − Medical Records, # 2 Exhibit B − Jennifer Allen Depo)(Haskell, Miriam) (Entered: 08/23/2013)
468 DEFENDANT'S BRIEF re 467 Brief − Plaintiff Proposal and Memorandum of Law for Redefining Sub−Class Two filed by Corizon Health, Inc.. (Phillips, Jennifer) (Entered: 08/30/2013)
469 MEMORANDUM in support re 466 Order on motion for clarification, 464 Order on Motion for ReconsiderationOrder on Motion for Miscellaneous Relief Defendant Grady Judd's Memorandum Concerning Second Sub−Class (Mental Health) Definition filed by Grady Judd. (Aranda, Robert) (Entered: 08/30/2013)
470 Unopposed MOTION for miscellaneous relief, specifically to release witness from writ of habeas corpus ad testificandum by Crystal Cuyler, Amy Gage, Terrica Hall, Lisa Jobe, Nikeyta Matthews, Michelle Minor, Brenda Sheffield. (Attachments: # 1 Text of Proposed Order)(Haskell, Miriam) (Entered: 10/08/2013)
471 ORDER granting 470 −−motion to release witness from writ of habeas corpus ad testificandum. Signed by Judge Steven D. Merryday on 10/9/2013. (BK) (Entered: 10/09/2013)
472 MOTION for miscellaneous relief, specifically Request for Court Site Visit by Grady Judd. (Aranda, Robert) (Entered: 10/16/2013)
473 MOTION to Take Deposition from S.B., E.H., R.H., V.D., J.Y., W.S., S.J., M.D. and J.H. by Corizon Health, Inc.. (Attachments: # 1 Exhibit)(Phillips, Jennifer) Motions referred to Magistrate Judge Mark A. Pizzo. (Entered: 10/17/2013)

Case: 8:12-cv-568 As of: 11/17/2017 12:54 PM EST 47 of 54

10/22/2013 10/24/2013
10/28/2013 11/04/2013
11/05/2013
11/06/2013 11/12/2013 11/13/2013
11/13/2013 11/13/2013 11/13/2013 11/14/2013 11/14/2013 11/14/2013 11/15/2013 11/15/2013
11/15/2013

474 ORDER denying 473 Defendant Corizon Health, Inc.'s Motion to Take Depositions. See order for details. Signed by Magistrate Judge Mark A. Pizzo on 10/22/2013. (ACS) (Entered: 10/22/2013)
475 MOTION to Compel Discovery from Defendant Corizon Health, Inc. by Crystal Cuyler, Amy Gage, Terrica Hall, Franky Jean−Pierre, Lisa Jobe, Nikeyta Matthews, Michelle Minor, Brenda Sheffield. (Attachments: # 1 Exhibit Email, Oct. 11, 2013, # 2 Exhibit Excerpt of Paula Mangarella Deposition, Dec. 14, 2012, # 3 Exhibit Excerpt of Wendy Clark Deposition, Sept. 25, 2013, # 4 Exhibit Excerpt of Paula Mangarella Deposition, Oct. 1, 2013, # 5 Exhibit Email, Sept. 27, 2013, # 6 Exhibit Email, Oct. 8, 2013)(Govindaiah, Manoj) Motions referred to Magistrate Judge Mark A. Pizzo. (Entered: 10/24/2013)
476 ORDER denying 475 Motion to Compel. Signed by Magistrate Judge Mark A. Pizzo on 10/28/2013. (ACS) (Entered: 10/28/2013)
477 RESPONSE to Motion re 472 MOTION for miscellaneous relief, specifically Request for Court Site Visit filed by Amy Gage, Terrica Hall, Franky Jean−Pierre, Lisa Jobe, Nikeyta Matthews, Michelle Minor, Brenda Sheffield. (Galloni, Tania) (Entered: 11/04/2013)
478 Unopposed MOTION for Writ of Habeas Corpus ad testificandum by Crystal Cuyler, Amy Gage, Terrica Hall, Lisa Jobe, Nikeyta Matthews, Michelle Minor, Brenda Sheffield. (Govindaiah, Manoj) Motions referred to Magistrate Judge Mark A. Pizzo. (Entered: 11/05/2013)
Sealed Document S−479 (AG) (Entered: 11/06/2013)
480 OBJECTION re 476 Order on motion to compel Regarding Order Denying Motion to Compel. (Govindaiah, Manoj) (Entered: 11/12/2013)
481 NOTICE of telephone hearing re: 480 −−plaintiffs' objection to 476 −−order re 475 −−plaitniffs' motion to compel discovery from Corizon Health, Inc. Telephone hearing scheduled for 11/13/2013 at 02:00 PM before Judge Steven D. Merryday. (BK) (Entered: 11/13/2013)
482 Joint MOTION to allow electronic equipment, specifically laptops, smartphones, ipads, printer, ext hard drive by Grady Judd. (McKinley, William) (Entered: 11/13/2013)
483 Minute Entry. MOTION HEARING re 475 Motion to Compel Discovery from Defendant Corizon Health, Inc. held before Judge Steven D. Merryday. Court Reporter: Paul Spangler (TKD) (Entered: 11/13/2013)
484 MOTION to quash trial subpoena and Supporting Memorandum of Law by Grady Judd. (Attachments: # 1 Exhibit A)(McKinley, William) (Entered: 11/13/2013)
485 NOTICE of withdrawal of motion by Grady Judd re 484 MOTION to quash trial subpoena and Supporting Memorandum of Law filed by Grady Judd (McKinley, William) (Entered: 11/14/2013)
486 ENDORSED ORDER: Before 2:00 p.m. on November 15, 2013, the plaintiffs must show cause why Sheriff Grady Judd's motion to quash 484 should not be granted. Signed by Judge Steven D. Merryday on 11/14/2013. (Entered: 11/14/2013)
487 ENDORSED ORDER denying without prejudice 472 the Sheriff's motion for a site visit. Signed by Judge Steven D. Merryday on 11/14/2013. (Entered: 11/14/2013)
488 RESPONSE re 480 Objection filed by Corizon Health, Inc.. (Phillips, Jennifer) (Entered: 11/15/2013)
489 RESPONSE TO ORDER TO SHOW CAUSE re 486 Order to show cause filed by Crystal Cuyler, Amy Gage, Terrica Hall, Chanda Hughes, Franky Jean−Pierre, Violene Jean−Pierre, Lisa Jobe, Nikeyta Matthews, Michelle Minor, Anita Nava, Brenda Sheffield. (Hayden, Donald) (Entered: 11/15/2013)
490 Unopposed MOTION for miscellaneous relief, specifically Request for Order Authorizing Transport of Plaintiff J.P. to Testify At Trial on Monday, November 18, 2013 by Crystal Cuyler, Amy Gage, Terrica Hall, Franky Jean−Pierre, Lisa Jobe,

Case: 8:12-cv-568 As of: 11/17/2017 12:54 PM EST 48 of 54

11/15/2013
11/15/2013 11/15/2013 11/15/2013 11/17/2013 11/17/2013 11/18/2013
11/18/2013 11/18/2013 11/19/2013 11/19/2013 11/20/2013 11/21/2013 11/21/2013 11/22/2013 11/22/2013 11/25/2013 11/26/2013 11/26/2013

Nikeyta Matthews, Michelle Minor, Brenda Sheffield. (Galloni, Tania) (Entered: 11/15/2013)
491 ENDORSED ORDER: The plaintiffs object 480 to the magistrate judge's order 476 denying the plaintiffs' motion 475 to compel. Because the magistrate judge's order is neither clearly erroneous nor contrary to law, the plaintiffs' objection is OVERRULED. The plaintiffs have enjoyed extensive discovery and extended discovery, but discovery is finished. Nothing in this order recognizes or depends on any state law privilege. Signed by Judge Steven D. Merryday on 11/15/2013 (Entered: 11/15/2013)
492 ORDER granting in part and denying in part 482 −−motion to allow electronic equipment into the courthouse. Signed by Judge Steven D. Merryday on 11/15/2013. (BK) (Entered: 11/15/2013)
493 ORDER granting 490 Motion transport Plaintiff J.P. to testify at trial. Signed by Magistrate Judge Mark A. Pizzo on 11/15/2013. (DK) (Entered: 11/15/2013)
494 *DOCUMENT TERMINATED AND IMAGE REMOVED BY CLERK. COUNSEL TO FILE REDACTED EXHIBIT LIST.* Exhibit List (Amended) by Corizon Health, Inc. (Wallace, Philip) Modified on 11/18/2013 (CD). (TKD). (Entered: 11/15/2013)
495 Exhibit List by Corizon Health, Inc... (Telan, Patrick) (Entered: 11/17/2013)
496 Witness List by Corizon Health, Inc.. (Telan, Patrick) (Entered: 11/17/2013)
497 Unopposed MOTION for to withdraw as attorney , as individual counsel for Franky Jean−Pierre, by Crystal Cuyler, Amy Gage, Terrica Hall, Chanda Hughes, Franky Jean−Pierre, Lisa Jobe, Nikeyta Matthews, Michelle Minor, Brenda Sheffield. (Galloni, Tania) (Entered: 11/18/2013)
498 Exhibit List Amended by Grady Judd.. (Vasquez, Jennifer) (AG). (Entered: 11/18/2013)
499 Minute Entry. Proceedings held before Judge Steven D. Merryday: granting 497 Motion to Withdraw as Attorney ; BENCH TRIAL held on 11/18/2013. Court Reporter: Bill Jones (TKD) (TKD). (Entered: 11/18/2013)
500 ORDER granting in part and denying in part 467 , 468 , and 469 −−motions for modification of a sub−class. Signed by Judge Steven D. Merryday on 11/19/2013. (BK) (Entered: 11/19/2013)
501 Minute Entry. Proceedings held before Judge Steven D. Merryday: BENCH TRIAL held on 11/19/2013. Court Reporter: Bill Jones (TKD) (Entered: 11/20/2013)
502 Minute Entry. Proceedings held before Judge Steven D. Merryday: BENCH TRIAL held on 11/20/2013. Court Reporter: Bill Jones (TKD) (Entered: 11/20/2013)
503 Unopposed MOTION for miscellaneous relief, specifically to transport witness NH by Crystal Cuyler, Amy Gage, Terrica Hall, Lisa Jobe, Nikeyta Matthews, Michelle Minor, Brenda Sheffield. (Govindaiah, Manoj) (Entered: 11/21/2013)
505 Minute Entry. Proceedings held before Judge Steven D. Merryday: BENCH TRIAL held on 11/21/2013. Court Reporter: Bill Jones (TKD) Modified on 11/25/2013 (BK) (Entered: 11/22/2013)
504 ORDER granting 503 Motion to transport witness N.H. to courthouse to testify at trial. Signed by Magistrate Judge Mark A. Pizzo on 11/22/2013. (DK) (Entered: 11/22/2013)
506 Minute Entry. Proceedings held before Judge Steven D. Merryday: BENCH TRIAL held on 11/22/2013. Court Reporter: Bill Jones (BK) (Entered: 11/25/2013)
507 Minute Entry. Proceedings held before Judge Steven D. Merryday: BENCH TRIAL held on 11/25/2013. Court Reporter: Bill Jones (BK) (Entered: 11/25/2013)
Sealed Document S−508. (EJC) (Entered: 11/26/2013)
509 Minute Entry. Proceedings held before Judge Steven D. Merryday: BENCH TRIAL held on 11/26/2013. Court Reporter: Bill Jones (BK) (BK). (Entered: 11/26/2013)

Case: 8:12-cv-568 As of: 11/17/2017 12:54 PM EST 49 of 54

11/27/2013 12/02/2013 12/03/2013 12/04/2013 12/05/2013 12/05/2013 12/06/2013
12/08/2013
12/09/2013 12/10/2013 12/11/2013 12/12/2013 12/13/2013 12/16/2013 12/17/2013
12/17/2013 12/18/2013 01/24/2014
01/27/2014

510 Minute Entry. Proceedings held before Judge Steven D. Merryday: BENCH TRIAL held on 11/27/2013. Court Reporter: Bill Jones (BK) (Entered: 12/02/2013)
511 Minute Entry. Proceedings held before Judge Steven D. Merryday: BENCH TRIAL held on 12/2/2013. Court Reporter: Bill Jones (BK) (Entered: 12/03/2013)
512 Minute Entry. Proceedings held before Judge Steven D. Merryday: BENCH TRIAL held on 12/3/2013. Court Reporter: Bill Jones (BK) (Entered: 12/03/2013)
513 Minute Entry. Proceedings held before Judge Steven D. Merryday: BENCH TRIAL held on 12/4/2013. Court Reporter: Bill Jones (BK) (Entered: 12/04/2013)
514 ORAL MOTIONS for judgment as a matter of law (1) by Grady Judd, Polk County Sheriff in his official capacity, and (2) by Corizon. (BK) (Entered: 12/05/2013)
515 Minute Entry. Proceedings held before Judge Steven D. Merryday: BENCH TRIAL held on 12/5/2013. Court Reporter: Bill Jones (BK) (Entered: 12/05/2013)
516 Minute Entry. Proceedings held before Judge Steven D. Merryday: denying 514 −−motion for judgment as a matter of law; BENCH TRIAL held on 12/6/2013. Court Reporter: Bill Jones (BK) (Entered: 12/06/2013)
517 NOTICE by Crystal Cuyler, Amy Gage, Terrica Hall, Lisa Jobe, Nikeyta Matthews, Michelle Minor (Attachments: # 1 Exhibit Plaintiffs' Objections to Defendant Judd's Cross−Designations for Video Depositions of D.M. and T.H.2)(Galloni, Tania) (Entered: 12/08/2013)
518 Minute Entry. Proceedings held before Judge Steven D. Merryday: BENCH TRIAL held on 12/9/2013. Court Reporter: Bill Jones (TKD) (TKD). (Entered: 12/10/2013)
519 Minute Entry. Proceedings held before Judge Steven D. Merryday: BENCH TRIAL held on 12/10/2013. Court Reporter: Bill Jones (TKD) (TKD). (Entered: 12/11/2013)
520 Minute Entry. Proceedings held before Judge Steven D. Merryday: BENCH TRIAL held on 12/11/2013. Court Reporter: Bill Jones (TKD) (Entered: 12/12/2013)
521 Minute Entry. Proceedings held before Judge Steven D. Merryday: BENCH TRIAL held on 12/12/2013. Court Reporter: Bill Jones (TKD) (Entered: 12/13/2013)
522 Minute Entry. Proceedings held before Judge Steven D. Merryday: BENCH TRIAL held on 12/13/2013. Court Reporter: Bill Jones (TKD) (Entered: 12/16/2013)
523 Minute Entry. Proceedings held before Judge Steven D. Merryday: BENCH TRIAL held on 12/16/2013. Court Reporter: Bill Jones (TKD) (Entered: 12/17/2013)
524 NOTICE by Crystal Cuyler, Amy Gage, Terrica Hall, Lisa Jobe, Nikeyta Matthews, Michelle Minor (Attachments: # 1 Exhibit Plaintiffs' Objections to Defendant Judd's Designations for Video Deposition of Gary Deland)(Govindaiah, Manoj) (Entered: 12/17/2013)
525 Minute Entry. Proceedings held before Judge Steven D. Merryday: BENCH TRIAL held on 12/17/2013. Court Reporter: Bill Jones (TKD) (Entered: 12/18/2013)
526 Minute Entry. Proceedings held before Judge Steven D. Merryday: BENCH TRIAL completed on 12/18/2013. Court Reporter: Bill Jones (TKD) (Entered: 12/19/2013)
527 MOTION for Extension of Time to File Proposed Findings of Fact and Enlarge Page Limit by Crystal Cuyler, Amy Gage, Terrica Hall, Lisa Jobe, Nikeyta Matthews, Michelle Minor, Brenda Sheffield. (Galloni, Tania) (Entered: 01/24/2014)
528 ENDORSED ORDER: With respect to the proposed findings of fact and conclusions of law, the plaintiffs move for an enlargement of the page limitation and for an extension of the time for filing. The 527 motion is GRANTED IN PART and DENIED IN PART. The page limitation is enlarged to 130 pages, and the time for filing is extended through February 21, 2014 (to aid in careful editing). The defendants' deadlines are extended accordingly. The parties are reminded to observe carefully the Local Rules governing margin and double−spacing (i.e., not 1.9 spaces but 2.0 spaces between lines of text). As the instant motion confirms, even a small non−conformity, continued across many pages, yields a material and unacceptable disparity among the parties. Signed by Judge Steven D. Merryday on 1/27/2014. (Entered: 01/27/2014)

Case: 8:12-cv-568 As of: 11/17/2017 12:54 PM EST 50 of 54

02/21/2014
03/12/2014
03/19/2014 03/20/2014
04/09/2014 04/09/2014 04/09/2014 04/09/2014 04/09/2014 04/11/2014 04/11/2014 05/02/2014
05/05/2014
05/06/2014
05/06/2014 05/07/2014 05/30/2014 05/30/2014 11/03/2014
04/16/2015

529 PROPOSED findings of fact and conclusions of law by Crystal Cuyler, Amy Gage, Terrica Hall, Lisa Jobe, Nikeyta Matthews, Michelle Minor. (Attachments: # 1 Appendix Addendum 1, # 2 Appendix Addendum 2, # 3 Appendix Addendum 3, # 4 Appendix Addendum 4, # 5 Appendix Addendum 5, # 6 Appendix Addendum 6, # 7 Appendix Addendum 7, # 8 Appendix Addendum 8, # 9 Appendix Addendum 9)(Govindaiah, Manoj) (Entered: 02/21/2014)
530 NOTICE by Crystal Cuyler, Amy Gage, Terrica Hall, Lisa Jobe, Nikeyta Matthews, Michelle Minor Joint Filing of Video Instructions (Govindaiah, Manoj) (Entered: 03/12/2014)
531 Unopposed MOTION to extend time to File Their Proposed Findings of Fact and Conclusions of Law by Grady Judd. (Campbell, Hank) (Entered: 03/19/2014)
532 ENDORSED ORDER granting 531 the defendants' unopposed motion for an extension through April 11, 2014, of the time within which to file proposed findings of fact and conclusions of law. The plaintiffs' reply is due May 2, 2014. Signed by Judge Steven D. Merryday on 3/20/2014. (Entered: 03/20/2014)
533 Joint Exhibit List. (TKD) (Entered: 04/09/2014)
534 Exhibit List by Chanda Hughes. (TKD) (Entered: 04/09/2014)
535 Exhibit List by Grady Judd. (TKD) (Entered: 04/09/2014)
536 Exhibit List by Corizon Health, Inc. (TKD) (Entered: 04/09/2014)
537 COURT'S EXHIBIT LIST. (TKD) (Entered: 04/09/2014)
538 PROPOSED findings of fact and conclusions of law by Corizon Health, Inc.. (Wallace, Philip) (Entered: 04/11/2014)
539 TRIAL BRIEF by Grady Judd. (Campbell, Hank) (Entered: 04/11/2014)
540 REPLY to Defendants' Proposed Findings of Fact and Conclusions re 538 Proposed Findings of Facts & 539 Proposed Findings of Facts by Crystal Cuyler, Amy Gage, Terrica Hall, Lisa Jobe, Nikeyta Matthews, Michelle Minor. (Govindaiah, Manoj) Modified on 5/5/2014 (CD). (Entered: 05/02/2014)
541 MOTION for leave to file Partially Opposed Motion for Leave to File Sur−Reply to Plaintiffs' Post−Trial Reply Brief by Grady Judd. (McKinley, William) (Entered: 05/05/2014)
542 RESPONSE to Motion re 541 MOTION for leave to file Partially Opposed Motion for Leave to File Sur−Reply to Plaintiffs' Post−Trial Reply Brief filed by Crystal Cuyler, Amy Gage, Terrica Hall, Lisa Jobe, Nikeyta Matthews, Michelle Minor. (Govindaiah, Manoj) (Entered: 05/06/2014)
543 MOTION for leave to file Sur−Reply to Plaintiff's Post−Trial Reply Brief by Corizon Health, Inc.. (Wallace, Philip) (Entered: 05/06/2014)
544 ORDER resolving motions 541 and 543 for leave to sur−reply. Signed by Judge Steven D. Merryday on 5/7/2014. (TKD) (Entered: 05/07/2014)
545 REPLY to Response to Motion re 540 MOTION for miscellaneous relief, specifically filed by Corizon Health, Inc.. (Wallace, Philip) (Entered: 05/30/2014)
546 REPLY to Response to Motion re 540 MOTION for miscellaneous relief, specifically filed by Grady Judd. (Campbell, Hank) (Entered: 05/30/2014)
547 NOTICE of pendency of related cases re 80 Notice of pendency of related cases, 61 Case management and scheduling order per Local Rule 1.04(d) by Crystal Cuyler, Amy Gage, Terrica Hall, Lisa Jobe, Nikeyta Matthews, Michelle Minor, Brenda Sheffield. Related case(s): Yes. (Galloni, Tania) (Entered: 11/03/2014)
548 OPINION AND ORDER: The plaintiffs failed to prove that either the Sheriff or Corizon was deliberately indifferent to any substantial risk of serious harm. The plaintiffs failed to prove that the Sheriff's or Corizon's policies or customs effect any other constitutional violation. The Clerk is directed to ENTER JUDGMENT for the defendants and against the plaintiffs on Counts I through V and to close

Case: 8:12-cv-568 As of: 11/17/2017 12:54 PM EST 51 of 54

04/17/2015 04/24/2015 04/27/2015 04/30/2015
04/30/2015
05/01/2015 05/05/2015 05/05/2015 05/05/2015 05/08/2015 05/08/2015 05/12/2015 05/12/2015 05/12/2015
05/12/2015

the case. Signed by Judge Steven D. Merryday on 4/16/2015. (BK) (Entered: 04/16/2015)
549 CLERK'S JUDGMENT in favor of Corizon Health, Inc., Grady Judd against Amy Gage, Chanda Hughes, Crystal Cuyler, Franky Jean−Pierre, Lisa Jobe, Michelle Minor, Nikeyta Matthews, Terrica Hall Signed by Deputy Clerk on 4/17/2015. CASE CLOSED. (EJC) (Entered: 04/17/2015)
550 AMENDED EXHIBIT LIST −− Plaintiffs (the Court attached Plaintiffs' 4−9−14 letter re certain exhibits)(BK) (Entered: 04/24/2015)
551 NOTICE of EXHIBITS placed in the EXHIBIT ROOM (6 boxes & 3 envelopes − Bench Trial) and in the SEALED VAULT (1 box & 1 envelope − Bench Trial). (AMD) (Entered: 04/28/2015)
552 MOTION for Taxation of Costs against Class Representatives by Grady Judd. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit A, # 4 Exhibit B, # 5 Exhibit C, # 6 Exhibit D, # 7 Exhibit E, # 8 Exhibit F)(Campbell, Hank) Motions referred to Magistrate Judge Mark A. Pizzo. Modified on 6/11/2015, NOTE: IMAGES DELETED of Exhibits 3 and 5 due to privileged information, counsel to refile redacted Exhibits. (EJC). (Entered: 04/30/2015)
553 MOTION for Attorney Fees and Costs against Plaintiffs' Counsel by Grady Judd. (Attachments: # 1 Exhibit 1, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F)(Campbell, Hank) Modified on 6/11/2015, NOTE: IMAGES DELETED of Exhibits 2 and 4 due to privileged information, counsel to refile redacted Exhibits. (EJC). (Entered: 04/30/2015)
554 PROPOSED BILL OF COSTS by Corizon Health, Inc.. (Attachments: # 1 Exhibit, # 2 Exhibit)(Telan, Patrick) Modified on 6/12/2015, NOTE: IMAGE DELETED of Exhibit 2 due to privileged information, counsel to refile redacted Exhibit. (EJC). (Entered: 05/01/2015)
555 ORDER ruling deferred 552 Motion for Taxation of Costs. See order for details. The Clerk is directed to enter the bills of costs filed by Defendants (doc. 552, Ex. 2; doc. 554), at which point the parties have 7 days to object. Signed by Magistrate Judge Mark A. Pizzo on 5/5/2015. (ACS) (Entered: 05/05/2015)
556 BILL OF COSTS taxed against Plaintiffs in the amount of $170,089.40. Signed by Magistrate Judge Mark A. Pizzo. (ACS) (Entered: 05/05/2015)
557 VACATED PER 587 ORDER − BILL OF COSTS taxed against Plaintiffs in the amount of $129,853.28. Signed by Magistrate Judge Mark A. Pizzo. (ACS) Modified on 6/30/2015 (EJC). (Entered: 05/05/2015)
558 NOTICE of Appearance by Stuart Harold Singer on behalf of Baker & McKenzie, LLP, Southern Poverty Law Center (Singer, Stuart) (Entered: 05/08/2015)
559 NOTICE of Appearance by Jon L. Mills on behalf of Baker & McKenzie, LLP, Southern Poverty Law Center (Mills, Jon) (Entered: 05/08/2015)
560 MOTION for Extension of Time to File Response to D.E. 553 by Baker & McKenzie, LLP, Southern Poverty Law Center. (Attachments: # 1 Text of Proposed Order)(Singer, Stuart) (Entered: 05/12/2015)
561 ENDORSED ORDER granting 560 the motion by Plaintiffs' Counsel for an extension through June 17, 2015, of the time within which to respond to Judd's motion for an award of excess costs, expenses, and attorney's fees. Signed by Judge Steven D. Merryday on 5/12/2015. (Entered: 05/12/2015)
562 DOCUMENT TERMINATED counsel notified to refile using the correct attorney log in and signature. MOTION for miscellaneous relief, specifically To Review Taxation of Costs Claimed by Defendant Corizon by Crystal Cuyler, Amy Gage, Terrica Hall, Lisa Jobe, Nikeyta Matthews, Michelle Minor, Brenda Sheffield. (Haskell, Miriam) Modified on 5/13/2015 (EJC). (Entered: 05/12/2015)
563 DOCUMENT TERMINATED counsel notified to refile using the correct attorney log in and signature. MOTION for miscellaneous relief, specifically To Review Taxation of Costs Claimed by Defendant Judd by Crystal Cuyler, Amy Gage, Terrica Hall, Lisa

Case: 8:12-cv-568 As of: 11/17/2017 12:54 PM EST 52 of 54

05/13/2015 05/13/2015 05/20/2015 05/22/2015 05/22/2015
05/26/2015
06/01/2015 06/01/2015 06/03/2015 06/05/2015 06/08/2015 06/11/2015 06/11/2015 06/11/2015 06/11/2015 06/11/2015 06/12/2015 06/15/2015

Jobe, Nikeyta Matthews, Michelle Minor, Brenda Sheffield. (Haskell, Miriam) Modified on 5/13/2015 (EJC). (Entered: 05/12/2015)
564 MOTION for miscellaneous relief, specifically to Review Taxation of Costs Claimed by Defendant Corizon by Crystal Cuyler, Amy Gage, Terrica Hall, Lisa Jobe, Nikeyta Matthews, Michelle Minor, Brenda Sheffield. (Galloni, Tania) (Entered: 05/13/2015)
565 MOTION for miscellaneous relief, specifically to Review Taxation of Costs Claimed by Defendant Judd by Crystal Cuyler, Amy Gage, Terrica Hall, Lisa Jobe, Nikeyta Matthews, Michelle Minor, Brenda Sheffield. (Galloni, Tania) (Entered: 05/13/2015)
566 ORDER ruling deferred on Plaintiffs' motions challenging the taxation of costs (docs. 564, 565). See order for details. Signed by Magistrate Judge Mark A. Pizzo on 5/20/2015. (ACS) (Entered: 05/20/2015)
567 MOTION for Samuel C. Kaplan to appear pro hac vice by Baker & McKenzie, LLP, Southern Poverty Law Center. (Singer, Stuart) Motions referred to Magistrate Judge Mark A. Pizzo. (Entered: 05/22/2015)
568 ORDER granting 567 motion to appear pro hac vice on behalf of Southern Poverty Law Center, Baker McKenzie, and individual attorneys named in Defendant's motion for attorney fees against Plaintiff's counsel. Signed by Magistrate Judge Mark A. Pizzo on 5/22/2015. (DK) (Entered: 05/22/2015)
***PRO HAC VICE FEES paid and Special Admission Attorney Certification Form filed by attorney Samiuel C. Kaplan, appearing on behalf of Baker & McKenzie, LLP, Southern Poverty Law Center (Filing fee $150 receipt number TPA030357.) Related document: 567 MOTION for Samuel C. Kaplan to appear pro hac vice. (AG) (Entered: 05/28/2015)
569 MOTION to extend time to Allow Plaintiffs Counsel to respond to Court Order by Corizon Health, Inc.. (Phillips, Jennifer) (Entered: 06/01/2015)
570 NOTICE by Crystal Cuyler, Amy Gage, Terrica Hall, Lisa Jobe, Nikeyta Matthews, Michelle Minor re 566 Order on Motion for Miscellaneous Relief (Haskell, Miriam) (Entered: 06/01/2015)
571 ORDER resolving 569 −−motion to extend time. Signed by Judge Steven D. Merryday on 6/3/2015. (BK) (Entered: 06/03/2015)
572 NOTICE of compliance With CM/ECF Registration by Baker & McKenzie, LLP, Southern Poverty Law Center (Kaplan, Samuel) (Entered: 06/05/2015)
573 STIPULATION by Crystal Cuyler, Amy Gage, Terrica Hall, Lisa Jobe, Nikeyta Matthews, Michelle Minor, Brenda Sheffield for costs. (Galloni, Tania) (Entered: 06/08/2015)
574 SUPPLEMENT re 552 MOTION for Taxation of Costs against Class Representatives Exhibit A by Grady Judd. (Campbell, Hank) (Entered: 06/11/2015)
575 SUPPLEMENT re 552 MOTION for Taxation of Costs against Class Representatives Exhibit C by Grady Judd. (Campbell, Hank) (Entered: 06/11/2015)
576 SUPPLEMENT re 553 MOTION for Attorney Fees and Costs against Plaintiffs' Counsel Exhibit A by Grady Judd. (Campbell, Hank) (Entered: 06/11/2015)
577 SUPPLEMENT re 553 MOTION for Attorney Fees and Costs against Plaintiffs' Counsel Exhibit C by Grady Judd. (Campbell, Hank) (Entered: 06/11/2015)
578 RESPONSE in Opposition re 565 MOTION for miscellaneous relief, specifically to Review Taxation of Costs Claimed by Defendant Judd filed by Grady Judd. (Campbell, Hank) (Entered: 06/11/2015)
579 SUPPLEMENT re 554 Bill of costs − proposed by Corizon Health, Inc.. (Phillips, Jennifer) (Entered: 06/12/2015)
580 MOTION for leave to file Reply to Defendant Judd's Response in Opposition to Plaintiffs' Motion to Review Costs by Crystal Cuyler, Amy Gage, Terrica Hall, Lisa Jobe, Nikeyta Matthews, Michelle Minor, Brenda Sheffield. (Haskell, Miriam)

Case: 8:12-cv-568 As of: 11/17/2017 12:54 PM EST 53 of 54

06/17/2015 06/17/2015 06/17/2015 06/23/2015 06/26/2015 06/26/2015 06/29/2015
07/09/2015 07/10/2015 07/13/2015 07/17/2015
07/31/2015 09/01/2015
09/01/2015 03/11/2016

(Entered: 06/15/2015)
581 ENDORSED ORDER granting 580 the plaintiffs' motion for leave to reply. The plaintiffs may reply not later than June 26, 2015, in five or fewer pages. Signed by Judge Steven D. Merryday on 6/17/2015. (Entered: 06/17/2015)
582 MEMORANDUM in opposition re 553 Motion for Attorney Fees filed by Baker & McKenzie, LLP, Southern Poverty Law Center. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Singer, Stuart) (Entered: 06/17/2015)
583 REQUEST for oral argument re 582 Memorandum in opposition, 553 MOTION for Attorney Fees and Costs against Plaintiffs' Counsel by Baker & McKenzie, LLP, Southern Poverty Law Center. (Singer, Stuart) (Entered: 06/17/2015)
584 MOTION for leave to file Reply to Plaintiffs' Counsel's Response to Defendant Grady Judd's Motion to Excess Costs, Expenses & Attorneys fees by Grady Judd. (Campbell, Hank) (Entered: 06/23/2015)
585 ENDORSED ORDER: The motion 584 is GRANTED, and the Sheriff may reply not later than July 10, 2015, in a paper not exceeding ten pages. Signed by Judge Steven D. Merryday on 6/26/2015. (Entered: 06/26/2015)
586 REPLY to Response to Motion re 565 MOTION for miscellaneous relief, specifically to Review Taxation of Costs Claimed by Defendant Judd filed by Crystal Cuyler, Amy Gage, Terrica Hall, Lisa Jobe, Nikeyta Matthews, Michelle Minor, Brenda Sheffield. (Haskell, Miriam) (Entered: 06/26/2015)
587 ORDER denying as moot 564 Plaintiffs' Motion to review taxation of costs claimed by Corizon. The Clerk of Court is directed to VACATE the bill of costs taxed against Plaintiff and in favor of Corizon (doc. 557). See order for details. Signed by Magistrate Judge Mark A. Pizzo on 6/29/2015. (ACS) (Entered: 06/29/2015)
588 NOTICE of supplemental authority re 553 MOTION for Attorney Fees and Costs against Plaintiffs' Counsel by Baker & McKenzie, LLP, Southern Poverty Law Center. (Attachments: # 1 Exhibit A)(Singer, Stuart) (Entered: 07/09/2015)
589 DOCUMENT TERMINATED counsel notified to refile using the correct event code. RESPONSE re 582 Memorandum in opposition filed by Grady Judd. (Campbell, Hank) Modified on 7/13/2015 (EJC). (Entered: 07/10/2015)
590 REPLY to Response to Motion re 553 MOTION for Attorney Fees and Costs against Plaintiffs' Counsel filed by Grady Judd. (Campbell, Hank) (Entered: 07/13/2015)
591 REPORT AND RECOMMENDATIONS re 552 MOTION for Taxation of Costs against Class Representatives filed by Grady Judd, 565 MOTION for miscellaneous relief, specifically to Review Taxation of Costs Claimed by Defendant Judd filed by Michelle Minor, Crystal Cuyler, Nikeyta Matthews, Amy Gage, Brenda Sheffield, Terrica Hall, Lisa Jobe. Signed by Magistrate Judge Mark A. Pizzo on 7/17/2015. (DK) (Entered: 07/17/2015)
592 OBJECTION re 591 REPORT AND RECOMMENDATIONS re 552 MOTION for Taxation of Costs against Class Representatives filed by Grady Judd, 565 MOTION for miscellaneous relief, specifically to Review Taxation of Costs Claimed by Defendant Judd filed . (Galloni, Tania) (Entered: 07/31/2015)
593 ORDER granting in part 565 −−plaintiffs' motion for review; sustaining in part the plaintiffs' objections; adopting 591 −−report and recommendation, as modified by this order; granting in part 552 −−motion for taxation of costs; directing the Clerk to TAX COSTS in the amount of $130,383.77 in favor of the Sheriff and against the plaintiffs. Signed by Judge Steven D. Merryday on 9/1/2015. (BK) (Entered: 09/01/2015)
594 ORDER denying 553 −−motion re sanction. Signed by Judge Steven D. Merryday on 9/1/2015. (BK) (Entered: 09/01/2015)
595 ORDER authorizing return of exhibits. Signed by Judge Steven D. Merryday on 3/11/2016. (BK) (Entered: 03/11/2016)

Case: 8:12-cv-568 As of: 11/17/2017 12:54 PM EST 54 of 54

03/11/2016
03/11/2016 04/19/2016

596 PLAINTIFF, DEFENDANT AND JOINT EXHIBITS: The records in this case indicate that this case was disposed of more than thirty (30) days ago. The records also indicate that the Clerk's Office is in possession of various exhibits used during the proceedings. Pursuant to Local Rule 5.04, you are notified that you have thirty (30) days for the removal of the exhibits from the custody of the Clerk's Office, or the exhibits will be destroyed, as permitted by Local Rule 5.04. (AMD) Modified to include Joint Exhibits. (AMD) (Entered: 03/11/2016)
597 CLERK'S certificate of destruction of Court exhibits and/or exhibit substitutes (AMD) (Entered: 03/11/2016)
598 CLERK'S certificate of destruction of exhibits and/or exhibit substitutes as to Plaintiff, Defendant and Joint. (AMD) (Entered: 04/19/2016)