Case 4:07-cv-00474-SPM-WCS Document 303-1 Filed 03/07/12 Page 1 of 7
UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF FLORIDA
TALLAHASSEE DIVISION Case No. 4:07-CV-474-SPM/WCS FELIX GARCIA, individually, Plaintiff, vs. KENNETH S. TUCKER, in his official Capacity as Secretary of the Florida Department of Corrections,
___________D_e_f_e_n_d_a_n_t_. ________________ /
SETTLEMENT AGREEMENT AND RELEASE OF ALL CLAIMS KNOW ALL PERSONS BY THESE PRESENTS:
1. The undersigned, Felix Garcia DC#482246 (hereinafter "the Plaintiff"), for the total consideration outlined in paragraphs 2-4 below hereby and for his heirs, executors, administrators, successors, and assigns, forever releases, acquits, and discharges the State of Florida, the Florida Department of Corrections, and their agents, servants, employees, and successors of and from any and all claims, actions, causes of action, demands, rights, damages, costs, loss of service, expenses and compensation whatsoever, including attorney's fees, which the undersigned Plaintiff now has or which may hereafter accrue in relation to Plaintiff's request for an accommodation under the Americans with Disabilities Act and Section 504, Rehabilitation Act, for an electronic hearing assistive device which attaches to his hearing aid, as described in greater

Case 4:07-cv-00474-SPM-WCS Document 303-1 Filed 03/07/12 Page 2 of 7
detail below in paragraph two (2) , and which is at issue in this cause. 2. As consideration for this settlement, the Defendant agrees
to the following. Plaintiff's attorneys shall send to the Defendant for final inspection and approval the following electronic equipment for Plaintiff to use with his hearing aid to hear the television transmissions and radio signals while he is in _the custody of the Florida Department of Corrections: (1) Sangean America Pocket AM/FM Receiver, clear case; (2) Clarity MHA100 Cell/Mobile Phone Amplifier; (3) NoiZfree Audio Monaural Earhook; and adaptors (hereinafter referred to as "electronic hearing assistive devices" or "electronic equipment") . Such possession and use shall apply so long as the Plaintiff obeys the Florida Department of Corrections' rules pertaining to retention and possession of said equipment, specifically including but not limited to the rules which prohibit hiding contraband in the electronic equipment or altering the equipment from its original state, and so long as Plaintiff remains in a housing status that permits possession of such electronic equipment. Within ten (10) days of Defendant's receipt of said equipment, Defendant shall have the equipment inspected for approval, and if approved, Defendant shall send the tendered electronic equipment to the Plaintiff for his continued use. If the equipment is not approved for any reason, the equipment shall be immediately returned to the attorneys for the Plaintiff with an explanation of what must be done to secure approval. In the event the electronic equipment later does not operate, Plaintiff or his counsel shall be permitted to purchase through the canteen or from an approved outside vendor, identical or similar replacement
2

Case 4:07-cv-00474-SPM-WCS Document 303-1 Filed 03/07/12 Page 3 of 7
electronic equipment, subject to the inspection and approval of the Department. This Settlement shall apply and remain in full force and effect at all times that Plaintiff is in the custody and control of the Defendant, and the Defendant agrees to house the Plaintiff at a state-operated facility able to accommodate the hearing impaired for the duration of his sentence and custody with the Defendant, and not transfer Plaintiff to any facility that is operated under private contract unless Plaintiff specifically requests a good adjustment transfer to a private contract facility, or to any county jail facility due to prison overcrowding. However, said Settlement shall not apply if the Plaintiff is transferred to any county jail facility to which the Plaintiff may be temporarily housed for purposes of going to court, and over which the Defendant has no control. Additionally, said Settlement shall not apply if Plaintiff is temporarily transferred or relocated to a state-operated facility, a private facility, or a county facility due to emergent conditions not under the control of the Department of Corrections, such as acts of terrorism, or extreme weather conditions, hurricanes, forest fires, floods, or other acts of nature.
3. Defendant shall house the Plaintiff in a correctional institution able to accommodate the hearing impaired and in a_housing unit which employs a radio transmitter connected to a television for audio transmission, unless Plaintiff is placed in a confinement status, such as close management, disciplinary confinement, administrative confinement, or similar status or in a restricted housing status, such as a crisis stabilization unit, a transitional care unit, a self-harm observation status (SHOS), a hospital or a
3

Case 4:07-cv-00474-SPM-WCS Document 303-1 Filed 03/07/12 Page 4 of 7
medical infirmary. If Plaintiff is placed in a status that does not allow possession of electronic equipment, the electronic hearing assistive devices will be placed in property storage until Plaintiff is released from that status.
4. Defendant further agrees to pay Plaintiff 1 s counsels'
reasonable attorney's fees, expenses, and costs of this litigation for efforts made specifically to further Plaintiff's individual request for an accommodation under the Americans with Disabilities Act and Section 504, Rehabilitation Act, in this suit. Attorney's fees, expenses, and costs incurred in conjunction with previous claims of retaliation in this suit, motions for transfers, efforts to add multi ple plaintiffs to the litigation, the related appeal in Case No. 10-15856-GG, the attempts to consolidate this case with the separately filed cases for plaintiffs Tracy Blackburn and Charles Johnson, and the request for class certification shall not be compensated. The parties shall have sixty (60) days from the date of the entry of this Settlement Agreement to engage in settlement discussions to attempt to resolve Plaintiff's claim for attorney's fees, expenses, and costs. In the event the parties are unable to agree and resolve the attorney's fees, expenses, and costs through informal discussions within thirty (30) days, the parties shall select a mutually agreeable mediator at defendant's expense in the Northern District of Florida and mediate the attorney's fees, expenses, and costs within the remaining thirty (30) day period. If the mediation results in an impasse, Plaintiff's counsel shall file with the U.S. District Court for the N.D. Fla. within thirty (30) days from the date of the impasse a Motion and Memorandum for
4

Case 4:07-cv-00474-SPM-WCS Document 303-1 Filed 03/07/12 Page 5 of 7
Plaintiff's Attorneys' Fees, Expenses, and Costs. Defendant shall file his Response within twenty (2 0) days from the date of Plaintiff's Motion for Attorneys' Fees, Expenses, and Costs, and the matter shall then be resolved by the Court.
5. In order to expedite resolution of the attorney's fees, expenses, and costs, Plaintiff's counsel shall within ten (10) days of executing the Settlement Agreement in this matter, provide Defendant's counsel with attorney time records, in Microsoft Excel, Microsoft Word, or WordPerfect format, detailing the time expended, as well as an itemized statement of expenses and costs.
6. Upon execution of this agreement, the parties shall notify the Court of pending settlement and request the Court to retain jurisdiction for a period of 180 days in order to allow the terms of the Settlement Agreement to be completed, following which the case shall be dismissed with prejudice.
7. When the terms of the Settlement Agreement are completed, the parties hereby agree to file with the Court a Joint Voluntary Dismissal with Prejudice as to said action and to execute any such other documents as may be necessary in order to accomplish the settlement and discharge of the parties contemplated herein.
8. It is understood and agreed that this settlement is the compromise of a disputed claim and that no actions taken as a result of this agreement are to be construed as an admission of liability on the part of the parties hereby released, and that said releasees deny liability therefor and intend merely to avoid further litigation. It is further understood and agreed that this release, and the consideration for it, extends to all claims asserted or which
5
~~~~-~~··-- - - ~ · - ------- -~- - - -

Case 4:07-cv-00474-SPM-WCS Document 303-1 Filed 03/07/12 Page 6 of 7
could have been asserted by the undersigned to obtain a reasonable accommodation in obtaining an electronic hearing assistive device in Case No. 4:07-CV-474-SPM/WCS filed in the United States District Court for the Northern District of Florida.
9. The parties agree that since the U.S. District Court will not retain jurisdiction of this cause once dismissed with prejudice, any alleged breach of this Settlement Agreement would have to be brought in state circuit court as a breach of contract. Should such an action be brought by the Plaintiff, Defendant hereby will not attack the validity of this Settlement Agreement and in accordance with Pan American Tobacco Corp v. Department of Corrections, 471 So.2d 4 (Fla. 1985), agrees not to raise the defense of sovereign immunity.
10. The parties agree that venue is proper only in the Second Judicial Circuit in Leon County. The parties further agree that the alleged failure to abide by this Settlement Agreement meets the jurisdictional amounts necessary to be in circuit court, and said jurisdiction will not be contested.
11. The parties agree that before any alleged violation(s) of this Settlement Agreement is brought before a court, the parties shall attempt to resolve the alleged violation (s) among themselves.
12. The parties agree that if any breach of contract action is instituted to enforce this Settlement Agreement, the losing party shall pay the prevailing party's attorneys' fees at market rates, litigation expenses and costs.
13. The undersigned Plaintiff hereby declares and represents that this Release is made without reliance upon any statement or
6

Case 4:07-cv-00474-SPM-WCS Document 303-1 Filed 03/07/12 Page 7 of 7
representation of the party or parties hereby released or their representatives.
14. The undersigned Plaintiff further declares and represents that no promise, inducement or agreement not herein expressed has been made to him, and that this Release contains the entire agreement between the parties hereto, and that the terms of this Settlement Agreement and Release are contractual and not a mere recital.

Susan A. Maher Chief Assistant Attorney General Corrections Litigation Attorney for Defendant Kenneth S. Tucker, Secretary, Department of Corrections

oz Ia Dated:

03 /

a/oL

----~~~,~~~~~~~~----

Dated: p{- J( )< rj ;2._ --------------~----------

&CJJ?a1L1

Berg, Jr., Esq. Florida Justice Inst tute, Inc. 3750 Miami Tower 100 S.E. Second Street Miami, Florida 33131-2309 Attorney for Plaintiff
/rrl·2- ---f-/-- Dated: l~~

Sharon Caserta, Esquire Deaf/Hard of Hearing Legal Advocacy Program Jacksonville Area Legal Aid 126 W. Adams Street Jacksonville, Florida 32202 Attorney for Plaintiff
~·~ q I'\ (1 J ______ Dated: ------~~.~~~~l~L_

7

 
 Case 4:07-cv-00474-SPM-WCS Document 6 Filed 12/03/07 Page 1 of 20

UNnED STATES

COURT FOR THE NORTHERN DISTRICT OF FLORIDA

Vti.Lftlftt.S.S£g

DIVISION

f1me41J)~O

CIVI"- RIGHTS COMPLAINT FORl\11
TO BE USED BY PRISONERS IN ACTIONS UNDER 42 U.S.C.§ 1983

iilmd JIA.c..f}<'tlt:u-'<'.tl.:r,f~_t2f__da.f):

Marne 7A;del< SiltTG w,ife IJJ)If C..orD,/inrete

7

/

(Enter name and title of each Defendant. If additional space is required, use the blank area below and directly to the right.)

ANSWER ALL QUESTIONS ON THE FQJ,.LOWING PAGES:

Case 4:07-cv-00474-SPM-WCS Document 6 Filed 12/03/07 Page 2 of 20

l.

PlAINTIFF:

State your full name, inmate number (if applicable), and full mailing address in the lines below.

Name of Plaintiff: Inmate Number Prison or Jail: Mailing address:

f'u!K CJ?rl'e<:Tiic.-.1171 .:Th->Ji}"""w"Vi:oN
f£i€o /3>·/fn.S .4£.
&Ik /J, ry'7 Fl"vr,'d./t
33tf'{,J> - t 77'/f

II. DEFENDANT($):

State the name of the Defendant in the first line, official position in the second line, place of employment In the third line, and mailing address. Do the same lor every Defendant:

(1) Defendant's name: i.Tf!m'"'5 ,4/i.cJk?l!p« 6-.!f. ..

Official position: Employed at: Mailing address:

S<!CI'e /19/'y
/)el'r: ..£ 'tornt:-Tri?n..5
~ ttJI 8/A,r .!iTd>ne M.
-10/JMIHUe. I'Z ;,:;Jf'j 7

(2) Defendant's name: !Mt<n? 7/l.v/..pl(

/

Official position:

3/hT? their /IJ)fi {'tJwkiiTPI'<

Employed at: Mailing address:

Oe,ur: P·f' CetPeC7i4M
.?If, tJI B//;,/1. r 5 PI'Je /U2.
. 4M~tWtMecfS rl. .N372.

(3) Defendant's name: Official position: Employed at: Mailing address:

ATTACH ADDITIONAl PAGES HERE TO NAME ADDITIONAL DEFJ;I''!Q.ANTS 2

Case 4:07-cv-00474-SPM-WCS Document 6 Filed 12/03/07 Page 3 of 20

Ill. EXHAUSTION OF ADMINISTRATIVE REMEDIES

Exhaustion of administrative remedies is required prior to pursuing a civil rights action regarding conditions or events in any prison, jail, or detention center. 42 U.S.C. § 1997e(a). Plaintiff is warned that any claims for which the administrative grievance process was not completed prior to filing this lawsuit may be subject to dismissal.

IV. PREVIOUS LAWSUITS

NOTE: FAILURE TO DISCLOSE ALL PRIOR CIVIL CASES MAY RESULT IN THE DISMISSAL OF THIS CASE. IF YOU ARE UNSURE OF ANY PRIOR CASES YOU HAVE FILED, THAT FACT MUST BE DISCLOSED AS WELL

A.

Have you initiated other actions in state court dealing with the same or similar

facts/issues involved in this action?

Yes( )

No('vJ

1.

Parties to previous action:

(a) Plaintiff(s): _ _ _ _ _--'.t::..Jl.!/A.=.__ _ _ _ _ _ __

(b)

Defendant(s): ----~':...f....<tL_ _ _ _ _ _ __

2.

Name of judge: _ _ __.J!.IV-:._,/L.l18'----

Case #: -----"'IV'-1-/~B:L..__ _

3.

County and judicial circuit: -----tJLI.:..n_ _ _ _ _ _ _ _ _ __

4.

Approximate filing date:

5.

If not still pending, date of dismissal: --..!.".,f-L:;___ _ __

6.

Reason for dismissal: - - - - - - - - - l ! ! C f . . ' " L - - - - - - - - -

7.

Facts and claims of case: -------'~'...t:Z._ _ _ _ _ _ _ _ __

(Attach additional pages as necessary to list state court cases.)

B.

Have you initiated ..other actions in federal court dealing with the same or similar

facts/issues involved in this action?

Yes(

No(v-("

1.

Parties to previous action:

a.

Plaintiff(s): -------'=~--------

b.

Defendant(s): ----~C!...f.J:L_ _ _ _ _ __

2.

District and judicial division: _ _ _--f!!'.f-1."2..__ _ _ _ _ _ _ _ _ __

3.

Name of judge:

IV 1ft I

Case #: _ _LIIi"-;;/u/l2...__ __

4.

Approximate filing date: -----~l!L;!..£L-_ _ _ __

5.

If not still pending, date of dismissal: ---~t!LI!~ftCL.__ _ __

6.

Reason for dismissal: - - - - - - - - - ' ' ! 4 ' . l . l - - - - - - - - - -

3

Case 4:07-cv-00474-SPM-WCS Document 6 Filed 12/03/07 Page 4 of 20

7. Facts and claims of case: _______.fV;f....IL-t!;_'-+IJ-"''----------

(Attach additional pages as necessary to list other federal court cases.)
C. Have you initiated other actions (besides those listed above in Questions (A) and (B)) in either state or federal court that relate to the fact or manner of your incarceration (including habeas corpus petitions) or the conditions of your confinement (including civil rights complaints about any aspect of prison life. whether it be general circumstances or a particular episode, and whether it involved excessive force or some other wrong)?

Yes(

No(/

If YES, describe each action in the space provided below. If more than one action, describe all additional cases on a separate piece of paper, using the same format as below.

1.

Parties to previous action:

a.

Plaintiff(s): - - - - - - ' " " " - " " ' - - - - - - - - - -

b.

Defendant(s): _____,""-!'-"''-----------

2.

District and judicial division: - - - ' - " ' 7 L L ' ' - - - - - - - - - - - -

3.

Name of judge:

IV!t:t /

4.

Approximate filing date:

Case #: -----'A4'7.'-J"'o!....,_,__

5.

If not still pending, date of dismissal:

6.

Reason for dismissal: - - - - - - - - " ! £ ! - = - - - - - - - - - -

7.

Facts and claims of case: --------''.!C.f..JY_ _ _ _ _ _ _ _ __

(Attach additional pages as necessary to list cases.)

D. HavE;) you evE>r h;:!d any acti.ons in f!!deral court dismissed as frivolous, malicious, failing to state a claim, or prior to service? If so, identify each and every case so dismissed:

Yes(

No(/(.

1.

Parties to previous action:

a.

Plaintiff(s): _ _ _ _ _ _£t-:i'-'I-"A-"--------

b.

Defendant(s): - - - - - 1 7 - ' - ' + - - - - - - -

2.

District and judicial division: ____,#.-Iq'1/fl-j________

3.

Name of judge:

&'/B

Case Docket # _..Lk'-711-/LI}-L__

4.

Approximate filing date:

11~/f}

Dismissal date: --'11;:¥/.L/}L__

5.

Reason for dismissal: - - - - - - - " " ' : . . u ._ _ _ _ _ _ _ _ __

4

Case 4:07-cv-00474-SPM-WCS Document 6 Filed 12/03/07 Page 5 of 20

6.

Facts and claims of case: _ _ _...,t:,!.J.J,;,.__ _ _ _ _ _ _ _ _ _ __

(Attach additional pages as necessary to list cases.)
V. STATEMENT OF FACTS: State briefiy the FACTS of!his case. Describe how each Defendant was involved and what each person did or did not do which gives rise to your claim. In describing what happened, state the names of persons
involved, dates, and places. .Do not make any legal argwrleD!l' or cite to any cases or statutes. You must set
forth separate factual allegations in separately numbered paragraphs. You may make copies of this page if necessary to supply all the facts. Barring extraordinary circumstances, no more than five (5) additional pages should be attached. (If there are facts which are not related to this same basic incident or issue, they must be addressed ill a separate cMI rights complaint.)

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Case 4:07-cv-00474-SPM-WCS Document 6 Filed 12/03/07 Page 15 of 20

VI. STATEMENT OF CLAIMS:

State what rights under t'le Constitution, laws, or treaties of the United States you claim have been violated.

Be specific. Number each separate claim and relate it to the facts alleged in Section V. If claims are not

related to the same basic incident or issue, they must be addressed in a separate civil rights

complaint.
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VII. RELIEF REQUESTED:

State briefly what relief you seek from the Court Do not make legal arguments or cite to cases/ statutes.

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I DECLARE UNDER PENALTY OF PERJURY THAT THE FOREGOING STATEMENTS OF FACT, INCLUDING ALL CONTINUATION PAGES, ARE TRUE AND CORRECT.

(Date) IF MAILED BY PRISONER:
I declare (or certify. verify, or affirm) under penalty of perjury that this complaint was (check one): ~livered to prison officials for mailing or CJ deposited in the prison's internal mail system on:
the i l 'l day of ;(/&'Vif.AH"£ , 20ff_;t'.
r gnat of PIa tnliff)
7

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 Case 4:07-cv-00474-SPM-WCS Document 40 Filed 06/22/09 Page 1 of 24

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA TALLAHASSEE DIVISION

Page 1 of 24

FELIX GARCIA, Plaintiff,
vs. WALTER McNEIL, TOMMY YOUNG, MARTIE TAYLOR, and LONG N. DO,1
Defendants. /

Case No. 4:07cv474-SPM/WCS

REPORT AND RECOMMENDATION Plaintiff, a pro se inmate, filed an amended civil rights complaint, doc. 6, alleging an equal protection violation, an Americans with Disabilities Act claim, and a Rehabilitation Act claim. Plaintiff has a profound hearing loss and seeks accommodation by prison staff so that he may listen to television by purchasing an audio device through a private vender instead of through the prison canteen. Doc. 6, pp. 5-6. At the conclusion of discovery, Defendants in this action (Secretary Walter A.

1 Defendant Do's name has been incorrectly listed in the style of this case, and is corrected here. The Clerk shall note the change on the docket.

Case 4:07-cv-00474-SPM-WCS Document 40 Filed 06/22/09 Page 2 of 24
Page 2 of 24
McNeil,2 Statewide ADA Coordinator Martie Taylor, Assistant Warden Tommy Young, and Chief Health Officer N. Long) filed a motion for summary judgment. Doc. 34. Plaintiff filed opposition to the summary judgment motion on October 3, 2008, doc. 36, and recently filed a supplement to his response. Doc. 39. I. Legal standards governing a motion for summary judgment
On a motion for summary judgment Defendants initially have the burden to demonstrate an absence of evidence to support the nonmoving party's case. Celotex Corporation v. Catrett, 477 U.S. 317, 322-23, 106 S. Ct. 2548, 2553-54, 91 L. Ed. 2d 265 (1986). If they do so, the burden shifts to Plaintiff to come forward with evidentiary material demonstrating a genuine issue of material fact for trial. Id. An issue of fact is "material" if it could affect the outcome of the case. Hickson Corp. v. Northern Crossarm Co., Inc., 357 F.3d 1256, 1259 (11th Cir. 2004) (citations omitted). Plaintiff must show more than the existence of a "metaphysical doubt" regarding the material facts, Matsushita Electric Industrial Co., LTD. v. Zenith Radio Corporation, 475 U.S. 574, 586, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d 538 (1986), and a "scintilla" of evidence is insufficient. The court must decide "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Hickson Corp., 357 F.3d at 1260, quoting Anderson v. Liberty Lobby, 477 U.S. 242, 252, 106 S. Ct. 2505, 2505, 91 L. Ed. 2d 202 (1986). All reasonable inferences must be resolved in the light most favorable to the nonmoving party. Watkins v. Ford Motor Co., 190 F.3d 1213, 1216 (11th Cir. 1999).
2 The complaint was initially against James McDonough, but pursuant to a court order entered on April 24, 2008, Walter A. McNeil was automatically substituted as a Defendant in his official capacity pursuant to Fed. R. Civ. P. 25(d).
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"Rule 56(e) . . . requires the nonmoving party to go beyond the pleadings and by her own affidavits, or by the 'depositions, answers to interrogatories, and admissions on file,' designate 'specific facts showing that there is a genuine issue for trial.' " Owen v. Wille, 117 F.3d 1235, 1236 (11th Cir. 1997), cert. denied 522 U.S. 1126 (1998), quoting Celotex, 477 U.S. at 324, 106 S. Ct. at 2553 (quoting Fed. R. Civ. P. 56(c), (e)). The nonmoving party need not produce evidence in a form that would be admissible as Rule 56(e) permits opposition to a summary judgment motion by any of the kinds of evidentiary materials listed in Rule 56(c). Owen v. Wille, 117 F.3d at 1236; Celotex, 477 U.S. at 324, 106 S. Ct. at 2553.
Local Rule 56.1(A) provides that a motion for summary judgment "shall be accompanied by a separate, short and concise statement of the material facts as to which the moving party contends there is no genuine issue to be tried. Failure to submit such a statement constitutes grounds for denial of the motion." The Local Rule also provides that the statement "shall reference the appropriate deposition, affidavit, interrogatory, admission, or other source of the relied upon material fact, by page, paragraph, number, or other detail sufficient to permit the court to readily locate and check the source." The Local Rule provides that the party opposing the motion shall serve a similar statement of material facts as to which the party contends there is a genuine issue to be tried, using the same format. Facts set forth in Defendants' statement will be deemed admitted (if supported by the record evidence) unless controverted by Plaintiff's statement. II. The relevant Rule 56(e) evidence
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Plaintiff is an inmate incarcerated at Polk Correctional Institution, serving a life sentence, and he has been incarcerated since 1983 when he was twenty-two years old. Doc. 34, p. 1; Ex. A (doc. 34-2, p. 10); Ex. B (doc. 34-3, pp. 2, 5).3 Plaintiff suffers profound hearing loss stemming from chronic mastoiditis, an infection in the mastoid bone. Doc. 34, p. 2; Defendants' Ex. E (doc. 34-6, p. 2). Plaintiff has suffered from that condition since he was a child. Id. Because Plaintiff is completely deaf in his left ear, Defendants suggest that a hearing aid is not warranted. Doc. 34, p. 2. Plaintiff has been "fitted with a hearing aid for his right ear." Defendants' Ex. E (doc. 34-6, p. 2). Plaintiff is "able to hear with the assistance of the hearing aid, but his hearing is very limited." Id.4
Plaintiff obtained his GED while in prison, on February 22, 1989. Defendants' Ex. C (doc. 34-4, p. 1). Plaintiff also earned a certificate in Business Administrative Operation on July 16, 1992. Doc. 34, pp. 2-3; Defendants' Ex. C (doc. 34-4). Plaintiff understands American Sign Language. Doc. 34, p. 2; Defendants' Ex. E (doc. 34-6, p. 2). On August 17, 2007, Plaintiff requested that he be permitted to communicate in writing during medical visits rather than through an interpreter. Doc. 34, p. 3; Defendants' Ex. E (doc. 34-6, p. 2).
3 References to exhibits are listed first to the paper copy and page number, followed by a reference (in parenthesis) to the corresponding document and page in the electronic docket. Both citations are referenced as a pro se litigant will not have access to the court's electronic docket.
4 In Plaintiff's opposition to summary judgment, he states he "is 'profoundly deaf' in his left ear, and that he is severely impaired of hearing in his right ear." Doc. 36, p. 28.
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As evidence, Plaintiff submitted a memorandum issued by Assistant Warden Young, dated August 30, 2007, containing a response from Defendant Taylor, the Statewide ADA Coordinator. Plaintiff's ex. 2 (doc. 36-2). The response is to Plaintiff's ADA accommodation request for "a certified sign language interpreter during medical visits." Id. Defendant Taylor explained that "[o]ther inmates should never be used as sign language interpreters during medical visits." Id. She advised that when Plaintiff was interviewed, he "agreed to use lip reading and note writing in his medical visits" but counseled that if Plaintiff were "undergoing a lengthy or complex medical procedure, a certified interpreter must be provided for him." Id. Defendant Taylor, thus, modified Plaintiff's request. Id.
Plaintiff is incarcerated at Polk Correctional Institution. That institution provides televisions for prisoners that broadcast the audio portion through a radio signal that inmates can then hear through personal radios which are purchased in the Institution's canteen. Doc. 34, p. 2 (citing Plaintiff's amended complaint, doc. 6). The televisions provide closed captioned and TDY/TDD5 as accommodations for hearing impaired inmates. Doc. 34, p. 2; Defendants' Ex. E (doc. 34-6, p. 2) (Ex. G)(doc. 34-8, pp. 3-4). The Department does not receive funding from the federal government to provide televisions as those are donated by private individuals or organizations. Doc. 34, p. 2;
5 TDD, Telecommunications Device for the Deaf, is a "machine that employs graphic communication in the transmission of coded signals through a wire or radio communication system." Doc. 34, p. 2, n.3. A closed caption television displays the television's audio as text on the television screen. Id. TDY refers to a telecommunications device for making telephone calls. Id., at 4. TDD and TDY "translates spoken words into written text for" a deaf telephone user, and the user "then responds by typing his message into the TDD which transforms the typed message into spoken words." Chisolm v. McManimon, 275 F.3d 315, 319, n.1 (3d Cir. 2001).
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Defendants' Ex. G (doc. 34-8, p. 4). The Department also does not provide radios for inmates, but inmates may purchase radios in the canteen. Doc. 34, p. 2; Defendants' Ex. G (doc. 34-8, p. 5).
Plaintiff submitted a formal request for an accommodation on June 26, 2007 and described his disability as "hearing impaired." Defendants' Ex. G (doc. 34-5, p. 1). Plaintiff reported that he could not hear "music or radio programs as do other inmates" through the "low-amplitude radios made available in canteens." Id. He advised that the "television's audio is provided inmates by designated FM radios signal" [sic] but he could not hear it "through radios sold in canteens." Defendants' Ex. D (doc. 34-5, p. 1). When asked what specific modification or accommodation he was requesting, he responded:
Allow family to purchase a higher decible [sic] AM-FM (of appropriate dimensions) radio from an authorized dealer and to permit authorized dealer to mail the radio to the institution for delivery. Defendants' Ex. D (doc. 34-5, p. 1). Dr. Do, the Chief Health Officer at Polk C.I., reviewed the request and verified that Plaintiff has hearing loss and "has hearing aid." Defendants' Ex. D (doc. 34-5, p. 2). Dr. Do concluded that Polk Correctional Institution provides "reasonable accommodation" because there is "close captioned TV, TDY phone," and a radio is made available in the canteen. Id. Dr. Do wrote: "I am not sure 'a higher decibel AM-FM Radio' may [sic] provide any better benefit than the radio available through canteen." Id. In his affidavit, Dr. Do explained "I did not recommend that [Plaintiff's] request be granted because of the severity of his hearing loss and there is no certainty that a higher decibel level radio would benefit him." Defendants' Ex. E (doc. 34-6, p. 2).
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Case 4:07-cv-00474-SPM-WCS Document 40 Filed 06/22/09 Page 7 of 24
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Defendant Young, the Assistant Warden of Programs at Polk Correctional Institution, denied Plaintiff's request for the accommodation on July 19, 2007, relying on Dr. Do's recommendation. Doc. 34, p. 4; Defendants' Ex. D (doc. 34-5, p. 2); Defendants' Ex. F (doc. 34-7, p. 1). The basis for that decision reiterated, "The Department has provided reasonable accommodation by offering radios that are purchased through canteen." Id. Defendant Young also explained that Plaintiff "did not identity an outside vendor or the radio that he wished to obtain." Defendants' Ex. F (doc. 34-7, p. 2).
The form used by the Department contains a space for noting when the inmate was interviewed concerning his or her request for an accommodation, and identifying the person who conducted the interview. Defendants' Ex. D (doc. 34-5, p. 2). The form shows that Plaintiff was not interviewed by Dr. Do concerning his request. Id.
The form also notes that a decision concerning a request would "be rendered within 10 days of receipt at the Intake Officer's office . . ." Defendants' Ex. D (doc. 34-5, pp. 1, 3). Presumably because Plaintiff did not receive a response within that period, a second request for accommodation was made on July 12, 2007. Defendants' Ex. D (doc. 34-5, p. 3). Plaintiff complained that "the current radios being sold in the canteen are of low decibel levels and I can not hear as normal people do." Id. He again requested that his family be allowed to purchase a radio with the decibel levels high enough so that he could hear the radio." Defendants' Ex. D (doc. 34-5, p. 3). Dr. Do's response in reviewing the request is identical to that on the June 26th request, and again, Plaintiff was not interviewed. Defendants' Ex. D (doc. 34-5, p. 4). The assistant warden denied the request on August 3, 2007, and stated, "Your issue has been
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Page 8 of 24
address [sic] on DC2-530 which you filed on 6/26/07 and returned to you on 7/19/07, therefore will not be readdressed, a copy of the DC2-530 has been forward to Ms. Taylor, ADA Coordinator, in Central Officer, for her review." Id.
Martie Taylor, the ADA Coordinator for the Department of Corrections, reviewed Plaintiff's request for accommodation and sent a memorandum to Defendant Young, the assistant warden, concurring with the decision to deny Plaintiff's request. Defendants' Ex. D (doc. 34-5, p. 5). The memorandum specifically commented that the opinion of "Medical" was that a higher decibel radio "would [not] be any more effective than those sold by the canteen; therefore the inmate's request was denied." Id. Defendant Taylor also issued a memorandum on September 11, 2007, to Curtis Greene, with the Bureau of Inmate Grievance Appeals, advising that the Institution's response (presumably on a grievance appeal) was correct. Defendants' Ex. D (doc. 34-5, p. 6). The memorandum concluded: "In addition, the head of the security department in the central office has determined that allowing radios other than those provided by the canteen are a security risk and are not to be allowed on the compound." Id.
Defendant Taylor submitted an affidavit clarifying that, although she is the ADA Coordinator for the Department, she is "not a medical doctor or a health care professional," and is not authorized to make medical decisions regarding medical treatment for inmates." Defendants' Ex. G (doc. 34-8, p. 2). Taylor relied "on medical staff to determine whether an inmate has a verified disability and whether a specific accommodation request might effectively address a disabled inmate's disability related needs." Id. Taylor accepted "Medical's conclusion that a higher decibel radio would not be any more effective for [Plaintiff] than those sold in the inmate canteen." Defendants'
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Case 4:07-cv-00474-SPM-WCS Document 40 Filed 06/22/09 Page 9 of 24

Ex. G (doc. 34-8, p. 3). Defendant Taylor also concluded that because Polk

Page 9 of 24

Correctional Institution already provided closed caption television, Plaintiff was provided

an adequate accommodation. Id.

Taylor noted that previously, the Department authorized the purchase of a non-

standard radio to accommodate "disabled inmates who could not use the canteen

radios." Defendants' Ex. G (doc. 34-8, p. 4). After the manufacturer ceased production

of the item, "some institutional staff allowed inmates to order other radios that were not

pre-approved by the Department." Id. Defendant Taylor sought to "resolve confusion

that had developed regarding an acceptable radio." Id. Thus, Defendant Taylor

"purchased a higher decibel radio from the vendor that is approved by the Department

to provide aids to our disabled inmates (Independent Living Aids), and" provided the

radio to James Upchurch, the Department's Chief of Security, for his consideration.

Defendants' Ex. G (doc. 34-8, p. 3); Defendants' Ex. H (doc. 34-9, p. 3). After

examining the radio, he concluded it "posed a security risk that should not be allowed

into the institutions." Defendants' Ex. G (doc. 34-8, pp. 3-4). The basis for Defendant

Upchurch's conclusion of a security risk was because it had an "opaque exterior that

would allow for the undetected storage of contraband . . . [and] would also impede

security cell searches as the radio would have to be taken apart in order to verify that no

contraband had been stored within it." Defendants' Ex. H (doc. 34-9, pp. 3-4).

Independent Living Aids is the vendor authorized by the Department of

Corrections to provide auxiliary aids for disabled inmates. Doc. 34, p. 5; Defendants'

Ex. G (doc. 34-8, pp. 3, 5). In 2000, the Department "specifically identified certain items

sold by this vendor as authorized auxiliary aids for our disabled inmates." Defendants'

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Case 4:07-cv-00474-SPM-WCS Document 40 Filed 06/22/09 Page 10 of 24
Page 10 of 24
Ex. G (doc. 34-8, p. 5). Defendant Taylor advises that it is important for the Department to "authorize specific auxiliary aids in order to avoid the introduction of highly valuable devices into the institutions." Id. Such valuable provides, for example "a higher quality radio, will be stolen by other inmates." Id. Thus, to minimize theft, the Department seeks "to identify products that are comparable to the value of the products offered in the inmate canteen. . . ." Id.
Walkenhorsts is not a vendor authorized by the Department. Defendants' Ex. G (doc. 34-8, p. 6). That vender does not ship packages by United States Mail, which is the method used by Independent Living Aids to ship merchandise to the institutions. Defendants' Ex. G (doc. 34-8, pp. 5-6). Plaintiff did not request permission to order a radio from the vender "Walkenhorsts." Doc. 34, p. 6; Ex. D (doc. 34-5, p. 1). Plaintiff did, however, request permission to order a higher decibel radio from an "authorized dealer." Defendants' Ex. D (doc. 34-5, p. 1).
Defendant Taylor's affidavit also advises that once the Department "learned that the radios sold in the canteen had earbuds that will not work for an inmate with a hearing aid that is in the ear, we reviewed and approved a specific set of headphones sold by the Independent Living Aids that will fit over the ears." Defendants' Ex. G (doc. 34-8, p. 6). Those headphones "will allow hearing impaired inmates with in-the-ear hearing aids to use headphones while also reducing the feedback between the headphones and hearing aid." Id.
Mr. Upchurch also provided an affidavit in which he explains that over the last few years, the Department "began requiring that inmates purchase only clear-cased radios." Defendants' Ex. H (doc. 34-9, p. 2). That requirement was for security
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Case 4:07-cv-00474-SPM-WCS Document 40 Filed 06/22/09 Page 11 of 24
Page 11 of 24
purposes in that it limited an inmate's ability to "hide contraband within a radio" and facilitated "more efficient security searches . . . ." Id. The Department used to permit inmates to have opaque cased radios, and inmates who already had "opaque cased radios [were] allowed to retain their property until it is no longer operable." Id.; Doc. 34, p. 5.
Inmates can only purchase items from the canteen, not from (unapproved) outside vendors. Defendants' Ex. H (doc. 34-9, p. 2). "Package permits were authorized in the past, but have been eliminated." Id. Requiring the purchase of items from the canteen "ensures the standardization of inmate property." Id. Standardization facilities efficient security searches, avoids problems between inmates, and is an important security issue. Id. Standardized radios also ensure that there is no interference with the Institution's radio system or security system as the use of "nonstandard radios" could operate on frequencies which might create interference. Defendants' Ex. H (doc. 34-9, p. 3).
The Department also used to permit inmates to receive packages delivered by private mail delivery companies, but now only allows delivery through the U.S. Postal Service. Defendants' Ex. H (doc. 34-9, p. 3). Private companies delivered at varied and unpredictable times, which created staffing problems and accountability issues. Id.
Defendant Taylor also states in her affidavit that "[t]he Department of Corrections does not receive any Federal Funding for the provision of television to inmates." Defendants' Ex. G (doc. 34-8, p. 4.). Indeed, the Department does not provide televisions, but permits donations "by private citizens or organizations, and when a television set ceases working the set is not replaced by the Department of Corrections."
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Defendants' Ex. G (doc. 34-8, pp. 4-5). Defendant Taylor acknowledges that "depending on the age of the television, closed captioning may not be available on a particular set." Defendants' Ex. G (doc. 34-8, p. 5).
Defendants have provided evidence showing that when two inmates (Horn and Deal) were authorized to purchase a radio from an outside vender, the approval was done in error. Doc. 34, p. 5 (Ex. F). The two inmates did not receive their radios. Doc. 34, p. 5 (Exhibits F, I).6 An affidavit submitted by Sergeant Graham states that "neither inmate Deal nor inmate Horn received a radio between May 1, 2007 and today." Defendants' Ex. I (doc. 34-10, p. 2).
Plaintiff, however, has provided evidence that inmate Dennis Deal was given approval in November of 2002 to purchase a "Radio A.D.A." from C. Crane Co., Inc., from Fortuna, California, for $79.95. Plaintiff's Ex. 6 (doc. 36-2, p. 11). The Inmate Bank Trust Fund Special Withdraw form shows that check number 110394 was issued on December 30, 2002. Id. Plaintiff has presented an "Inmate Partial Property Return Receipt" which was dated January 13, 2002, showing an FM AM radio was returned to inmate Dennis Deal from storage. Plaintiff's Ex. 6 (doc. 36-2, p. 12). Furthermore, when the radio needed to be repaired in July of 2006, inmate Deal's request to send it to
6 Defendants point that out Plaintiff alleged in his initial complaint that inmates Horn and Deal did not receive the radios because the vender shipped them by U.P.S. Doc. 34, p. 5, n.6, citing doc. 1, pp. 15-16. Defendants fail to state why the inmates did not receive the radio, or why the initial approval was "in error." See, e.g., Defendants' Ex. F (doc. 34-7, p. 2); Defendants' Ex. I (doc. 34-10, p. 2).
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the C. Crane Company was granted on the condition that it was "sent to the vendor for repair." Plaintiff's Ex. 6 (doc. 36-2, p. 14).7
Plaintiff also provided evidence that inmate Dennis Deal was given approval in May of 2007 to purchase a "radio and headphone" from Walkenhorsts, from Napa, California, for $37.93. Plaintiff's Ex. 6 (doc. 36-2, p. 13). The Inmate Bank Trust Fund Special Withdraw form shows that check number 0297731 was issued on May 17, 2007. Id.
Plaintiff has presented an "Inmate Request" dated January 14, 2002, from inmate Robert Hawk, concerning his request to purchase a "special radio & headset from Radio Shack." Plaintiff's Ex. 7 (doc. 36-2, p. 19). The request for the radio was granted on January 17, 2002, and inmate Hawk was directed to have his family have the manufacturer send it directly to the inmate, not to the family. Id. Plaintiff also presented the Personal Property List for inmate Hawk which shows that a Sony Walkman and Maxell Headphones were returned to him on July 3, 2006. Plaintiff's Ex. 8 (doc. 36-2, p. 20).
Plaintiff presented evidence of a memorandum from James A. Galloway, the Supervisor for Region III TV Repair, dated May 12, 2008. Plaintiff's Ex. 9 (doc. 36-2, p. 21). It advises that in "October, 2006 Polk C.I. administration approved installation of F.M. transmitters in all inmate televisions." Id. The "transmitters allow T.V. programming to be heard on inmate's radio headphones and are now installed in every dormitory at the Main Unit and Work Camp Annex." Id. "When the transmitters were
7 An ADA accommodation request by inmate Deal to have his radio repaired or replaced was denied on August 6, 2007, stating the "Department do [sic] not repair or replace personal radio." Plaintiff's ex. 6 (doc. 36-2, pp. 15-17).
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installed the external volume levels on the television sets were limited to reduce the amount of noise in dormitory T.V. rooms. This was facilitated in order to help the hearing impaired inmates at the institution." Id.
As additional evidence, Plaintiff submitted a memorandum from Defendant Taylor, dated November 6, 2007, which was a "partial grant" of an accommodation's request by Plaintiff. Doc. 39, p. 12; Plaintiff's Ex. 13 (doc. 39-2, p. 6). Plaintiff was authorized "to purchase 'over the ear' headphones" which was believed to be able to help Plaintiff "hear [using] the radios sold in the canteen." Plaintiff's Ex. 13 (doc. 39-2, p. 6). Plaintiff, however, submitted an inmate request, Plaintiff's Ex. 17 (doc. 39-2, p. 16), and a grievance seeking assistance from Defendant Young in trying to see if the headphones would work with the current radios being sold in the canteen. Plaintiff's Ex. 18 (doc. 39-2, p. 17). There is no response on either form. III. Analysis a. Americans with Disabilities Act claim
Title II of the ADA prohibits a "public entity" from discriminating against "a qualified individual with a disability" on account of the individual's disability, as follows:
[N]o qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity. 42 U.S.C. § 12132, quoted in Bircoll v. Miami-Dade County, 480 F.3d 1072, 1081 (11th Cir. 2007). A "qualified individual with a disability" is defined under Title II as "an individual with a disability who, with or without reasonable modifications to rules, policies, or practices, the removal of architectural, communication, or transportation
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barriers, or the provision of auxiliary aids and services, meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity." 42 U.S.C. § 12131(2) (emphasis added). A disabled prisoner has "a Title II ADA claim if he is denied participation in an activity provided in state prison by reason of his disability." Bircoll v. Miami-Dade County, 480 F.3d at 1081, citing Pa. Dep't of Corr. v. Yeskey, 524 U.S. 206, 211, 118 S.Ct. 1952, 1955, 141 L.Ed.2d 215 (1998). Title II of the ADA is applicable to services, program and activities within prisons, and prisoners may not be discriminated against on account of a disability. Pa. Dep't of Corr. v. Yeskey, 524 U.S. at 211, 118 S.Ct. at 1955, 141 L.Ed.2d 215 (1998); see also United States v. Georgia, 546 U.S. 151, 154, 126 S.Ct. 877, 879 (2006); Raines v. State of Fla., 983 F.Supp. 1362, 1369-70 (N.D. Fla. 1997).
Furthermore, the Attorney General's implementing regulations "provides that "[a] public entity shall take appropriate steps to ensure that communications with . . . members of the public with disabilities are as effective as communications with others." 28 C.F.R. § 35.160(a), quoted in Bircoll, 480 F.3d at 1082. Such steps include providing "appropriate auxiliary aids and services" so that a disabled individual has an equal opportunity to participate in an activity of the public entity. 480 F.3d at 1082.8 Moreover, the regulations states that "[i]n determining what type of auxiliary aid and service is necessary, a public entity shall give primary consideration to the requests of the individual with disabilities." 28 C.F.R. § 35.160(b)(2). "The ADA defines 'auxiliary
8 The Regulation provides: "A public entity shall furnish appropriate auxiliary aids and services where necessary to afford an individual with a disability an equal opportunity to participate in, and enjoy the benefits of, a service, program, or activity conducted by a public entity." 28 C.F.R. § 35.160(b)(1).
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aids and services' to include 'qualified interpreters or other effective methods of making aurally delivered materials available to individuals with hearing impairments.' " 42 U.S.C. § 12102(1)(A), quoted in Bircoll, 480 F.3d at 1082.
To state a claim under Title II of the ADA, Plaintiff must allege that: (1) he is a qualified individual with a disability, (2) and that he was "excluded from participation in or . . . denied the benefits of the services, programs, or activities of a public entity" (3) by reason of his disability. Shotz v. Cates, 256 F.3d 1077, 1079 (11th Cir. 2001), cited in Schiavo ex rel. Schindler v. Schiavo, 403 F.3d 1289, 1298 (11th Cir. 2005); Bircoll, 480 F.3d at 1083. Plaintiff alleged he is disabled under the ADA, and that his substantial hearing loss affects a major life activity. Doc. 36, pp. 9-10. Those facts are not disputed. The central dispute here is whether providing closed caption television is sufficient as a "reasonable accommodation" to satisfy the Department's obligation under the ADA.
Defendant contends this claim fails because Plaintiff "has not been denied access to the television at the institution in which [he] is incarcerated." Doc. 34, p. 8. While acknowledging that inmates can listen to television audio that is "broadcast over radio waves that inmates hear through their personal radios, it is also true that the television audio is made available to [Plaintiff] through closed captioning." Id. Closed captioning "is a reasonable accommodation that makes the television audio accessible to [Plaintiff.]" Id. Defendants' evidence also acknowledges that closed captioning is not available on all televisions.
Plaintiff argues in response that his level of literacy is not sufficient to keep up with fast-moving closed captioning. Doc. 36, pp. 11-13. Plaintiff asserts that his "long-
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term hearing disability" has affected his comprehension and he reads slowly, with his index finger under "the word he is attempting to decipher." Doc. 36, p. 12. Plaintiff stress that his reading ability, at least for terms of literacy, is based on stationary reading materials, not moving narratives controlled by the pace of the speech. Id., at 12-13. Additionally, Plaintiff argues that his decision to use written communication for medical call-outs instead of an interpreter is "not because he could write or read proficiently." Doc. 36, p. 16. Instead, Plaintiff states that he had not been provided a qualified interpreter but another inmate who was also hearing impaired.9 Id., at 16. Plaintiff also states that not all television stations provide "adequate or effective closed caption service" and that he is denied television where "absolutely no closed caption transmission is available" and that not all televisions have closed captioning. Doc. 39, p. 11.
While Plaintiff has presented argument in defense of this claim, Plaintiff has not provided evidence10 under Rule 56 which may appropriately be considered as opposition to the summary judgment motion. It will be presumed, however, that Plaintiff could provide evidence in an affidavit attesting to his literacy if called upon to do so. At the least, he could describe in an affidavit his difficulties with closed captioning and he is
9 It is also a reasonable inference that an interest in having some privacy with respect to medical issues would also be an important factor in not having an interpreter present during a medical call-out. This inference, which must be in Plaintiff's favor, does not demonstrate the proficiency of Plaintiff's literacy.
10 Plaintiff did submit as documentary evidence a "test report" which he suggests shows his literacy level. Plaintiff's Ex. 1 (doc. 36-2). The document, however, is unexplained and not helpful.
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competent to so testify since it his own personal experience that he would be describing.
It is also reasonable to infer from the evidence that there are times when Plaintiff is denied access to the television because not all programs have closed captioning. It must also be accepted at this stage of the litigation that Plaintiff's literacy level could impede his participation. Reading and comprehending at one's own pace is different from reading a quickly moving narrative. It is, accordingly, not clear that Plaintiff has been provided "meaningful access to the benefit" offered. Alexander v. Choate, 469 U.S. 287, 301, 105 S.Ct. 712, 720, 83 L.Ed.2d 661 (1985), quoted in Raines, 983 F.Supp. at 1373. Plaintiff has raised a genuine dispute of material fact as to whether the accommodation is reasonable in light of his apparent literacy difficulties, the lack of closed captioning with some programs, and the fact that not all televisions have closed captioning. While it is accepted that not every television must be closed captioned and accessible to Plaintiff, it is also true that if the accessible televisions place Plaintiff in unjustified isolation, that is also a "form of discrimination." See Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 600-601, 119 S.Ct. 2176, 2187 (1999) (considering "whether the proscription of discrimination may require placement of persons with mental disabilities in community settings rather than in institutions."). It is unclear the extent of these problems, but it is enough at this stage to find a genuine dispute of a material fact which precludes summary judgment on this claim.
It is also troubling that while audio has essentially been eliminated for all inmates, absent the purchase of personal radio devices, a barrier has been erected preventing hearing impaired inmates to obtain devices which may accommodate their special
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needs. It is reasonable to infer that had televisions not been so modified, Plaintiff might have been able to hear television through use of his hearing aid. However, as Plaintiff has explained, the hearing aid cannot be worn simultaneously with the personal radio device that must be used to listen to the broadcast audio. Further, if all items not purchased in the canteen must come from an approved vender, as urged by Defendant, then some accommodation should be available for these items. Yet Defendants' own evidence demonstrates that the approved vender (Independent Living Aids) does not provide a device that would be acceptable to Defendants, considering the security concerns of the Department.
Thus, there is sufficient evidence that Plaintiff has been excluded from the "benefits of the services, programs, or activities" of the Department and his disability has not reasonably been accommodated. Plaintiff has shown a triable issue on this question, and it is recommended that the summary judgment motion be denied. b. Rehabilitation Act claim
The Rehabilitation Act provides in pertinent part: No otherwise qualified individual with a disability in the United States, as defined in section 705(20) of this title, shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance. . . 29 U.S.C.A. § 794(a). The elements of a prima facie case of discrimination under the Rehabilitation Act are essentially the same as that under the Americans with Disabilities Act, except for the additional requirement of showing the defendant is a recipient of federal funds. Ellis v. England, 432 F.3d 1321, 1326 (11th Cir. 2005). Thus, Plaintiff must show that the program or activity from which he was excluded or denied a benefit
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"received or was directly benefitted by federal financial assistance." Doyle v. Univ. of Ala., 680 F.2d 1323, 1327 (11th Cir. 1982) (quoting Brown v. Sibley, 650 F.2d 760 (5th Cir. 1981)); see also U.S. Dept. of Transp. v. Paralyzed Veterans of America, 477 U.S. 597, 605, 106 S.Ct. 2705, 91 L.Ed.2d 494 (1986) (holding that § 504 of the Rehabilitation Act could not be applied to entities that did not "actually receive federal financial assistance"). A "program or activity" is defined as including "all of the operations" of a state or local government. 29 U.S.C. § 794(b)(1)(A).
Defendants contend that Plaintiff is "not qualified" under the Rehabilitation Act because he "cannot hear the television audio." Doc. 34, p. 12. But Defendants admit that a "qualified handicapped person" is defined as a "handicap person who meets the essential eligibility requirements for the receipt of such services." Id., p. 13, quoting 28 C.F.R. § 42.540(1). Defendants, therefore, have confused Plaintiff's qualifications to participate in the activity with his hearing abilities to participate. The latter relates to his impairment, not to his essential eligibility. Although Defendants have presented no basis for determining when an inmate is afforded television privileges, it is reasonable to conclude that inmates may do so during certain hours of the day when they are not otherwise required to be working, performing assigned duties, or engage in education classes. In other words, absent some disciplinary action that causes Plaintiff to lose television privileges, this is an activity that is provided by the Department for all inmates and for which all inmates are generally qualified. Few other qualifications can be imagined.11 As a prisoner in the Department of Corrections, Plaintiff would appear to
11 Defendants argue that Plaintiff has implied that the "changed circumstances" of installing the television audio system is what compelled his "need for a higher decibel radio." Doc. 34, p. 13, n.9. Defendants note that Plaintiff "never directly states that he
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meet all of the requirements to participate in watching television, "in spite of his handicap." Onishea v. Hopper, 171 F.3d 1289, 1300 (11th Cir. 1999), quoting Southeastern Community College v. Davis, 442 U.S. 397, 406, 99 S.Ct. 2361, 2367, 60 L.Ed.2d 980 (1979).
Defendants also assert that Plaintiff cannot state a claim upon which relief may be granted because the Department "does not receive federal funding for the provision of television to inmates." Id., at 12-14. Plaintiff disputes Defendants' argument, and has shown that even though the televisions were not purchased by the Department of Corrections, the Department did purchase multiple audio reducing electronic devices to effectively reduce television audio at the set's external speakers and instead broadcasts the audio via a fixed FM radio frequency through the electronic device, so that all prisoners may hear the audio on personally owned FM radios. Doc. 36, p. 21; see also pp. 17-19. In other words, Defendants have spent funds to make alterations to the televisions provided. Plaintiff states that the electronic devices were purchased from "monies allotted as budget to the vocational television repair and electronics shop." Id., at 21. Plaintiff has also claimed that the Department used federal FEMA funds to purchase "new omni directional antennas" and mounting poles. Id. He also argues that 40 digital converter boxes were purchased with federal coupons and the assistance of Department of Education funding. Doc. 39, pp. 10-11. Plaintiff argues that the Department has demonstrated a willingness to provide and maintain television viewing
could hear the television audio in the dayrooms prior to the installation of the television audio system that transmits the television audio through radio waves." Id. That omission is irrelevant, however, since Defendants have altered the conditions for watching and hearing television.
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as a recreational activity for inmates and has spent money to purchase components to repair televisions, and to modify the manner in which inmates can watch television.12 Doc. 36, pp. 21-22. Plaintiff has raised a genuine dispute of fact on this issue and pointed to facts which show the Department has received federal assistance in providing television viewing for inmates in its custody.
Defendants also assert that because closed captioning is available, Plaintiff cannot state a claim under the Rehabilitation Act. Id., at 11. The argument should be rejected for the same reason it was rejected in considering the ADA claim. The motion for summary judgment should be denied as to the Rehabilitation Act claim as well. c. Equal Protection claim
Plaintiff alleged that other inmates were able to obtain special radios but Plaintiff's request was denied. Defendants have presented evidence that the initial permission given to those inmates was in error. They have shown that additional safety measures have been implemented which now preclude a practice that was previously permitted. Defendants acknowledge that "inmates who already possessed opaque cased radios are allowed to retain their property until it is no longer operable." Defendants' Ex. H (doc. 34-9, p. 2).
Plaintiff, however, has come forward with evidence to show that other inmates have received radios (with higher decibel audio) as he himself has requested. Perhaps the actual receipt of those radios was prior to the change in policy, but that fact is not entirely clear. Defendants have not pointed out a precise date on which the policy
12 Plaintiff submitted evidence showing that the Department "ordered equipment to be placed in the dormitories to make TV transmission available on [a] normal radio channel." Plaintiff's ex. 18; see also Plaintiff's ex. 9.
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changed. Nevertheless, Plaintiff has presented evidence that other inmates who have similar hearing deficiencies, were allowed to obtain a higher decibel radio from an outside vender. Further, such radios have been permitted to be kept and used by other inmates. Indeed, Defendants' own evidence shows that inmates whose radios were received previously, but do not meet current regulations, are able to retain their radios. Thus Plaintiff has shown that other similarly situated inmates have that which he has been denied.13 Plaintiff has at least shown a genuine dispute of fact as to this claim.
Defendants' evidence is that the change in policy was because opaque-cased radios posed security concerns. Those concerns, however, may not be alleviated when some inmates maintain such property. A triable issue of material fact exists as to the nature and extent of these security concerns. Under these circumstances, the motion for summary judgment should be denied as to the equal protection claim as well. d. Speech Therapy
Defendants assert that Plaintiff has suggested in this case that he needs speech therapy and a higher decibel radio will aid him in his effort to learn to speak. Doc. 34, p. 17. Defendants argue that this claim is unexhausted and should be dismissed. Id. No such claim is raised within the amended complaint, and this action is deemed only to challenge the denial of a personal radio obtained from an outside vender. There are no factual allegations presented concerning the denial of speech therapy. Plaintiff states in his response to summary judgment that there is no speech therapy program available to
13 Plaintiff argues that when he initiated this case, several other inmates sought to be co-plaintiffs with him. Doc. 36, pp. 23-24. That fact, however, does not show that those inmates were treated differently; rather, it shows instead that those inmates were treated the same as Plaintiff when their accommodation requests were similarly denied.
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him. Doc. 36, p. 32; see Plaintiff's Ex. 10 (doc. 36-2, p. 23). Thus, exhaustion "would be an exercise in futility and waste of resources." Id. Accordingly, while it is unclear whether this claim was actually made, Defendants' motion for summary judgment should be granted as to any speech therapy claim. e. Individual Capacity Claims
Defendants are correct that there is no individual capacity liability under Title II of the ADA or the Rehabilitation Act. Garcia v. S.U.N.Y. Health Scis. Ctr. Of Brooklyn, 280 F.3d 98, 107 (2nd Cir. 2001); Albra v. Advan, Inc., 490 F.3d 826, 829-830 (11th Cir. 2007). The summary judgment motion in favor of Defendants should be granted as to claims for individual capacity liability.
In light of the foregoing, it is respectfully RECOMMENDED that Defendants' motion for summary judgment, doc. 34, be DENIED in part and GRANTED in part. The motion should be granted as to any claim concerning speech therapy, and claims against Defendants in their individual capacities. Otherwise the motion should be DENIED, and this case remanded for further proceedings.
IN CHAMBERS at Tallahassee, Florida, on June 22, 2009.
s/ William C. Sherrill, Jr. WILLIAM C. SHERRILL, JR. UNITED STATES MAGISTRATE JUDGE NOTICE TO THE PARTIES A party may file specific, written objections to the proposed findings and recommendations within 15 days after being served with a copy of this report and recommendation. A party may respond to another party's objections within 10 days after being served with a copy thereof. Failure to file specific objections limits the scope of review of proposed factual findings and recommendations.
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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA TALLAHASSEE DIVISION

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FELIX GARCIA, Plaintiff,
vs. WALTER McNEIL, TOMMY YOUNG, MARTIE TAYLOR, and LONG N. DO,
Defendants. /

Case No. 4:07cv474-SPM/WCS

FOURTH REPORT AND RECOMMENDATION1 On February 22, 2011, Plaintiff, who is represented by counsel, filed a motion for class certification, doc. 195, and a motion for preliminary injunctive relief, doc. 198. Defendants have filed a response to the motion for preliminary injunction, doc. 212, and the motion to certify a class, doc. 213. Plaintiff was given leave to file replies, docs. 215 and 218, and those replies were filed on May 3, 2011. Docs. 221, 222. Both motions are ready for a ruling and are addressed in this report and recommendation.

1 The first report and recommendation, doc. 40, recommended denial of Defendants' motion for summary judgment, doc. 34. The second report and recommendation, doc. 135, recommended denial in part of the motion to amend, doc. 120. The third report and recommendation, doc. 197, recommended denial of Plaintiff's motion to consolidate, doc. 167.

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Plaintiff had previously sought to join with two additional prisoners in this case and filed a motion seeking leave to file a second amended complaint. See docs. 135, 150. I recommended that the motion to join additional Plaintiffs be denied because prisoners cannot join together in one lawsuit and avoid paying his or her own filing fee. Doc. 135, citing Hubbard v. Haley, 262 F.3d 1194, 1198 (11th Cir. 2001). When the motion was denied, Plaintiff was permitted to file an "amended complaint with class action allegations." Doc. 150. Plaintiff then filed this motion to certify a class, doc. 195, and the accompanying motion for preliminary injunction relief, doc. 198.2 Plaintiff's individual claim
Plaintiff alleges in his revised second amended complaint that he is completely deaf in his left ear and severely hard of hearing in his right ear. Doc. 207, p. 7. He needs powerful hearing devices to hear with his right ear. Id. He alleges that he cannot listen to AM or FM radio stations with the radios available through the canteen "because they are ineffective in accommodating his profound hearing loss." Id., p. 8. He also alleges that he cannot enjoy the television because he cannot hear television sound "without the sought after reasonable accommodation." Id. He alleges that his literacy level makes it difficult to read closed-captioning. Id.
Plaintiff alleges that when he was housed at Charlotte Correctional Institution, he "had equipment that allowed him to hear the television and radio."3 Id. He alleges that
2 Subsequent to filing the instant motions, Plaintiff filed a motion to consolidate this case with two other cases. Doc. 167. That motion was denied. Docs. 197, 209.
3 In Plaintiff's pro se response to summary judgment, Plaintiff advised that he previously had a small AM/FM radio with a voice amplification device, and a "telecoil loop" which benefitted Plaintiff's hearing abilities. Doc. 36-3, p. 15, n.6. I recently directed Plaintiff to clarify his ability to hear television and explain how he could do so at
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this equipment was taken from him when he arrived at Polk Correctional Institution. Id.
He alleges that he then asked for permission at Polk CI "to purchase from an outside
vendor a high decibel level AM/FM radio that would allow him to hear the radio and
television, just as other inmates do." Id. This was his claim in his grievance of August
26, 2007. Id., p. 9.
Plaintiff then alleges that he filed another grievance, on February 26, 2010, after
this suit was filed. Id. There, he asserted that he needed "an electronic device or
devices that will allow me to hear the radio and television, so that I can fully understand
the spoken words and/or information coming through my hearing aids, when attempting
to watch television or listen to the radio." Id.
None of this claims a right to be housed at an institution that transmits television
audio over radio signals. However, in the portion of the complaint that describes the
"parties," Plaintiff alleges:
Plaintiff, Felix Garcia, has exhausted his state administrative remedies, by use of the inmate grievance procedure, in an effort to be allowed to purchase a radio and other necessary devices that would allow him to
Charlotte Correctional Institution. Doc. 238. Plaintiff's reply to that order explains that he "cannot hear or understand what is being said on a normal television set turned up somewhat loud while using just [Plaintiff's] hearing aid." Doc. 239, p. 1. Plaintiff could previously hear television at Charlotte C.I. with the use of a "pocket talker" and a telecoil loop, and he was "positioned next to the television set." Id., at 2. Plaintiff could hear both television and radio (with a Daiwa radio), and because the pocket talker had a microphone type device that would "pick up sound," Plaintiff could also hear people if they spoke into the microphone. Id. Plaintiff states that when he transferred to Polk Correctional Institution in 1992, the officers were "amazed" that Plaintiff had the equipment and "forced [Plaintiff] to sign a property destruction from against [his] will." Id. Since the televisions were modified at Polk C.I., Plaintiff could not hear the television. Id., at 3. Attached to the response is Exhibit 1 which is the Inmate Personal Property List showing Plaintiff was requesting the property be mailed to Mike Garcia in Tampa, but revealing the property was ultimately "disposed of by the state" and Plaintiff was not permitted to retain the radio, pocket talker, and telecoil loop. Doc. 239-1.
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hear the radio, and to be assured that he will be housed at an institution that transmits television audio over radio signals, so that he may be able to enjoy the television as the non-deaf and/or hard of hearing inmates do. Id., p. 3 (emphasis added). In summary, while the complaint is not clear in this fundamental respect, I conclude that Plaintiff's claim is that he be transferred to a prison that has television that has been altered to transmit the audio portion of the program by radio signal and that he be allowed to buy and have devices that allow him to receive that radio signal and hear it in his right ear, and that he be allowed to use this device or another device like it that allows him to hear ordinary radio. Motion to Certify Class, doc. 195 Plaintiff alleges a plaintiff class of all persons who are currently in the custody of the Florida Department of Corrections (hereinafter "FDOC"), or who, in the future will come into the custody of the FDOC, and who are deaf and/or hard of hearing, and who cannot enjoy radio and television programming without electronic assistive devices and access to a television, which is connected to a radio transmitter for the purpose of broadcasting the television audio over radio signals (hereinafter "Plaintiff Class."). Doc. 195, pp. 2, 4. Plaintiff seeks certification of a Rule 23(b)(2) class. Id., p. 4. This accurately restates his individual claim as set forth above. To certify a class action, a party must first demonstrate all four prerequisites of Rule 23(a) and then "must satisfy at least one of the three requirements listed in Rule 23(b)." Wal-Mart Stores, Inc. v. Dukes, — U.S. —, 131 S.Ct. 2541, 2548, — L.Ed.2d — (2011). The party seeking class certification must demonstrate, under Rule 23(a), that: (1) the class is so numerous that joinder of all members is
impracticable,
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(2) there are questions of law or fact common to the class,

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(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), quoted in Wal-Mart Stores, Inc., 131 S.Ct. at 2548. Certification of

a Rule 23(b)(2) class requires a showing that Defendant has "acted on grounds

generally applicable to the Plaintiff Class, thereby making appropriate final injunctive

relief with respect to the Plaintiff Class as a whole." Id.

The decision to certify a class "is within the broad discretion of the district court."

Sacred Heart Health Systems, Inc. v. Humana Military Healthcare Services, Inc. 601

F.3d 1159, 1169 (11th Cir. 2010). Class actions are "an exception to the usual rule that

litigation is conducted by and on behalf of the individual named parties only." Califano

v. Yamasaki, 442 U.S. 682, 700–701, 99 S.Ct. 2545, 61 L.Ed.2d 176 (1979), quoted in

Wal-Mart Stores, Inc., 131 S.Ct. at 2550. "[T]o justify a departure from that rule, a class

representative must be part of the class and possess the same interest and suffer the

same injury’ as the class members." Id., quoting East Tex. Motor Freight System, Inc. v.

Rodriguez, 431 U.S. 395, 403, 97 S.Ct. 1891, 52 L.Ed.2d 453 (1977) (quoting

Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 216, 94 S.Ct. 2925, 41

L.Ed.2d 706 (1974)) (internal quotation marks omitted).

Rule 23 does not set forth a mere pleading standard. A party seeking class certification must affirmatively demonstrate his compliance with the Rule – that is, he must be prepared to prove that there are in fact sufficiently numerous parties, common questions of law or fact, etc. We

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recognized in Falcon[4 that "sometimes it may be necessary for the court to probe behind the pleadings before coming to rest on the certification question," 457 U.S., at 160, 102 S.Ct. 2364, and that certification is proper only if "the trial court is satisfied, after a rigorous analysis, that the prerequisites of Rule 23(a) have been satisfied," id., at 161, 102 S.Ct. 2364; see id., at 160, 102 S.Ct. 2364 ("[A]ctual, not presumed, conformance with Rule 23(a) remains . . . indispensable"). Frequently that "rigorous analysis" will entail some overlap with the merits of the plaintiff's underlying claim. That cannot be helped. " '[T]he class determination generally involves considerations that are enmeshed in the factual and legal issues comprising the plaintiff's cause of action.' " Falcon, supra, at 160, 102 S.Ct. 2364 (quoting Coopers & Lybrand v. Livesay, 437 U.S. 463, 469, 98 S.Ct. 2454, 57 L.Ed.2d 351 (1978); some internal quotation marks omitted). Nor is there anything unusual about that consequence: The necessity of touching aspects of the merits in order to resolve preliminary matters, e.g., jurisdiction and venue, is a familiar feature of litigation. See Szabo v. Bridgeport Machines, Inc., 249 F.3d 672, 676–677 (C.A.7 2001) (Easterbrook, J.).
Wal-Mart Stores, Inc., 131 S.Ct. at 2551-2552 (footnote omitted). "The burden of proof
to establish the propriety of class certification rests with the advocate of the class."
Valley Drug Co. v. Geneva Pharms., Inc., 350 F.3d 1181, 1187 (11th Cir. 2003), quoted
in Vega v. T-Mobile USA, Inc., 564 F.3d 1256, 1265 (11th Cir. 2009).
Standing and mootness
Prior to certification of a class, the court must determine that the named plaintiff
possesses individual standing. Murray v. Auslander, 244 F.3d 807, 809 (11th Cir.
2001), citing Prado-Steiman v. Bush, 221 F.3d 1266 (11th Cir. 2000); Griffin v. Dugger,
823 F.2d 1476, 1482 (11th Cir. 1987). If a plaintiff cannot show personal injury, then no
Article III jurisdiction exists. Griffin, 823 F.2d at 1383. Article III limits federal court
jurisdiction to "cases" and "controversies." Troiano v. Supervisor of Elections in Palm
4 General Telephone Co. of Southwest v. Falcon, 457 U.S. 147, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982).
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Beach County, 382 F.3d 1276, 1282 (11th Cir. 2004), cited in Sheely v. MRI Radiology Network, P.A., 505 F.3d 1173, 1183 (11th Cir. 2007).
[A] case is moot when it no longer presents a live controversy with respect to which the court can give meaningful relief. If events that occur subsequent to the filing of a lawsuit . . . deprive the court of the ability to give the plaintiff . . . meaningful relief, then the case is moot and must be dismissed. Troiano, 382 F.3d at 1281-82, quoted in Sheely, 505 F.3d at 1183. A typical argument that a case is moot occurs when a defendant voluntarily ceases a challenged practice. However, "voluntary cessation of offensive conduct will only moot litigation if it is clear that the defendant has not changed course simply to deprive the court of jurisdiction." Sheely, 505 F.3d at 1188, quoting Nat'l Adver. Co. v. City of Miami, 402 F.3d 1329, 1333 (11th Cir. 2005). Defendant contends that Plaintiff is not an adequate class representative because his individual claim is moot. Doc. 213, pp. 9-10. The argument is simple. Defendant belatedly authorized Plaintiff to purchase a device so that he could hear the audio portion of the television program at Polk Correctional Institution. The device worked only at Polk CI because the television at Polk CI had been altered to transmit the audio by radio signal. The mission at Polk CI was then changed to handle re-entry prisoners and since Plaintiff is serving a life sentence, he was transferred to another prison. The other prisons designated to house hearing impaired prisoners do not have televisions that have been altered to transmit audio by radio signal. Indeed, it appears that only Polk CI and one other institution, a work camp not designated for hearingimpaired inmates, have the altered television sets.5 Therefore, Plaintiff's device, which
5 As will be discussed ahead, Ms. Taylor testified that there are three male institutions designated for permanent assignment of hearing-impaired prisoners, Polk,
Case No. 4:07cv474-SPM/WCS

Case 4:07-cv-00474-SPM-WCS Document 244 Filed 07/20/11 Page 8 of 16
Page 8 of 16
he was permitted to obtain and possess, is now useless because Defendant transferred him away from Polk CI. Id., pp. 2-6.
Plaintiff's claim with respect to hearing television is not moot. Two institutions have television sets that transmit the audio by radio, Polk Correctional Institution and a work camp. Plaintiff wants to be transferred to one of those.
The claim for a radio to hear radio might be moot. It might be moot if the device Plaintiff was permitted to obtain at Polk is a radio that also receives ordinary radio programs. A radio that receives all radio broadcasts would work at any institution. But Defendant has devoted the entirety of the argument to the television problem. Thus, I conclude that none of Plaintiff's claims are moot.
Numerosity The court must determine whether “the class is so numerous that joinder of all members is impracticable.” Fed.R.Civ.P. 23(a)(1), quoted in Vega, 564 F.3d at 1266. It has been stated as a "general rule" that "while there is no fixed numerosity rule, 'generally less than twenty-one is inadequate, more than forty adequate, with numbers between varying according to other factors.' " Cox v. American Cast Iron Pipe Co., 784 F.2d 1546, 1553 (11th Cir. 1986), citing 3B Moore's Federal Practice ¶ 23.05[1] at n.7 (1978); see also Vega, 564 F.3d at 1267; Kilgo v. Bowman Transp., Inc., 789 F.2d 859, 878 (11th Cir.1986) (affirming certification of a class of "at least thirty-one individual class members" and noting that "the class includes future and deterred job applicants, which of necessity cannot be identified."). But see Crawford v. Western Elec. Co., 614
Okaloosa, and Tomoka, but apparently only Polk has television sets that broadcast the audio portion of the program by radio.
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Page 9 of 16
F.2d 1300, 1305 (5th Cir. 1980) (stating "We certainly cannot say that a class of 34 satisfies the numerosity requirements as a matter of law."). The Eleventh Circuit has noted that, "[a]lthough mere allegations of numerosity are insufficient to meet this prerequisite, a plaintiff need not show the precise number of members in the class." Evans v. U.S. Pipe & Foundry Co., 696 F.2d 925, 930 (11th Cir. 1983), quoted in Vega, 564 F.3d at 1267. "Nevertheless, a plaintiff still 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.
Plaintiff asserts that "[h]ere, the numerosity requirement is met, as there are an unknown but significant number of individuals who have been discriminated against by Defendants, and there are additional individuals who will be discriminated against by the Defendants in the same manner in the future." Doc. 195, p. 6. Plaintiff asserts that he cannot provide a number because the ADA Coordinator for the Department of Corrections, Martie Taylor, testified in her deposition that she does not know how many requests she has received in the past for reasonable accommodations because the Department 's database does not permit such searches. Id. Plaintiff also contends that there will be additional persons who will in the future enter the Department of Corrections and need such accommodation. Id., at 2, 6. Plaintiff argues: "Therefore, the actual number of individuals that fall within the Plaintiff Class definition is unknown, and is beyond any number that could reasonably or practicable be joined in a single lawsuit." Id.
Attached to Plaintiff's motion is the deposition of Martie Taylor, given on March 10, 2010. Doc. 195-1. Ms. Taylor was asked, "Are there any other hearing-impaired
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Page 10 of 16
inmates in the Department of Corrections that have requested radios so they can access TV, like non-hearing-impaired inmates can?" Doc. 195-1, p. 24. She answered, "there were a lot through that time period of '90 to maybe '94, and that were approved." Id. She was then asked, "What I guess I am trying to figure out is since then, since this [radio] was no longer being manufactured, do you have a number of inmates that are requesting radios similar to what Mr. Garcia and Mr. Blackburn are seeking?" Id., at 2425. She answered, "We have some that have," but could not recall the names. Id., at 25. This follow-up dialogue ensued:
Q But you had their records? A It would be very difficult to obtain those records. Q Why is that? A Because I have over a thousand – well, close to 2000 now – records for
requests of accommodation, and my database is such that I have to go through them one by one. Q So do you have any idea how many inmates have made a request for a reasonable accommodation to have – hearing-impaired inmates – to have a radio of this nature? A No. Q But it's more than one? A More than one. Q It's certainly Mr. Garcia, correct? A Uh-huh. Q you need to –
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A Yes. Mr. Garcia.

Page 11 of 16

Q Mr. Blackburn?

A Yes.

*

*

*

*

*

*

*

Q And other than Blackburn and Garcia, there are others, but you don't know

how many?

A Right.

Q Could you give me an estimate as to how many?

A No, I can't.

Q But it could be in the dozens?

A No, I wouldn't say in the dozens. I really can't tell you. And I don't want to

guesstimate.

Doc. 195-1, pp. 25-26.

Ms. Taylor said "off the top of her head" she could recall that there are three

institutions designated to house hearing-impaired prisoners. Id., p. 27. Those are Polk,

Okaloosa, and Tomoka. Id. She then said that Lowell, a women's institution, and the

four reception centers, would have to be able to accommodate hearing-impaired

prisoners. Id., pp. 27-28.

Later in the deposition, Ms. Taylor was asked about receiving other requests

from hearing-impaired inmates for accommodations:

Q So some inmates have been denied and some of them haven't?

A They were approved when we had an approved radio.

Q Now you don't have an approved radio, they are all denied?

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A Yes.

Page 12 of 16

Q You don't know how many that is?

A No.

Q Okay. And you are saying that it would be too difficult – if I were to make

a public records request or request for production of documents, you

would have a hard time finding that?

A I don't have any assistance. It's just me and . . .

Q Do you have them on a computer?

A Well, it's a quasi database.

Q Excel or some other program?

A It's not Excel. It's something that they are hardly even using anymore.

Q Okay. You don't have a search function on there?

A No. We don't get any money for ADA.

Doc. 195-1, pp. 65-66.

Defendant has also filed an affidavit from Martie Taylor dated May 4, 2011. Doc.

223-1. Ms. Taylor states that she polled the institutions and discovered that other than

Polk CI, there is only one other prison that has a television equipped to transmit the

audio by radio signal, and that is located at a work camp. Id., p. 1. "Sound for

television viewing at the institutions currently designated to house hearing impaired is

provided solely through the television's own audio capabilities and closed captioning."

Id. Ms. Taylor said that she reviewed her files and her database and determined that

there were "four requests for high decibel radios, in addition to [Plaintiff's] request, and

two requests for TV band radios." Id., pp. 1-2.

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Page 13 of 16
Consequently, Plaintiff has not satisfied the numerosity requirement. The evidence from Ms. Taylor's deposition was insufficient to determine the probable number of potential class members, and the numbers revealed in her most recent affidavit, even sharing common or typical claims,6 is not sufficient. There is no need to address the other three Rule 23(b) factors. The motion for class certification, doc. 195, should be denied. Motion for Preliminary Injunction, doc. 198
Plaintiffs seek a preliminary injunction requiring the Department of Corrections to provide Plaintiff (and the alleged class) with "a reasonable accommodation" to allow them to "purchase a radio and other necessary electronic devices that would allow them to hear the radio and television, and to be assured that they will be housed at an institution that transmits television audio over radio signals, so that [they] may be able to enjoy television programming, just as the non-deaf and/or non-hard of hearing inmates do." Doc. 198, pp. 1-2.
Granting or denying a preliminary injunction is a decision within the discretion of the district court. Carillon Importers, Ltd. v. Frank Pesce Intern. Group Ltd., 112 F.3d 1125, 1126 (11th Cir. 1997), citing United States v. Lambert, 695 F.2d 536, 539 (11th Cir. 1983). Guiding this discretion is the required finding that plaintiff has established:
(1) a substantial likelihood of success on the merits;
6 Typicality and commonality have not been shown either. I cannot tell whether any hearing-impaired prisoners have a claim for (1) a radio to hear radio broadcasts, or (2) a radio to hear television audio from a television set that broadcasts the audio by radio, or (3) to be transferred to a prison that has a television set modified to broadcast audio by radio. It is entirely possible that some class members have one of the claims, but not all three.
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Page 14 of 16
(2) a substantial threat of irreparable injury if the injunction were not granted; (3) that the threatened injury to the plaintiffs outweighs the harm an injunction may cause the defendant; and (4) that granting the injunction would not disserve the public interest. Siegel v. LePore, 234 F.3d 1163, 1176 (11th Cir. 2000); Carillon Importers, Ltd., 112 F.3d at 1126; United States v. Jefferson County, 720 F.2d 1511, 1519 (11th Cir. 1983). A preliminary injunction is an extraordinary and drastic remedy and should not be granted unless the movant "clearly carries the burden of persuasion" of all four prerequisites, which is always upon the plaintiff. Jefferson County, 720 F.2d at 1519, citing Canal Auth. v. Callaway, 489 F.2d 567 (5th Cir. 1974). Plaintiff has not shown a substantial likelihood on his own claim with respect to television audio. He is serving a life sentence. There are only two institutions with television sets that transmit the audio as a radio signal. One is Polk CI, but that is now an institution that prepares prisoners for release. The other is a work camp. Plaintiff has not shown that he has a right to be transferred to either institution. Plaintiff has not claimed that he has a right under the ADA to require Defendant to modify the television sets wherever he may be housed to transmit the audio portion of the program by radio. The claim for a radio to hear radio is much simpler, but Plaintiff has devoted his energy to the television problem. Either he now has a radio that works for radio, or he does not. The claim might be moot if the radio that was approved for Polk would enable him to hear radio programs, assuming that other institutions would permit him to possess and use the radio. In any event, entitlement to a preliminary injunction to hear
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Page 15 of 16
radio programs has not been shown. The motion for a preliminary injunction should be denied. Further proceedings on remand
A case management order was entered long ago. Doc. 30. Discovery ended on August 11, 2008. Id. I recommended denial in part of Defendant's motion for summary judgment. Doc. 40. That was adopted by the court. Doc. 47. Discovery was then reopened after counsel for Plaintiff was appointed, to expire on March 31, 2010. Doc. 51. The discovery deadline was extended several times, but expired on June 30, 2010. Docs. 79, 87, 98. The filing of renewed motions for summary judgment was stayed on July 28, 2010, until further court order. Doc. 130. It is now recommended that if this report and recommendation is adopted, that this case be remanded and that the parties be permitted to file motions for summary judgment within 20 days of the entry of the order adopting this report and recommendation. Conclusion
Accordingly, it is RECOMMENDED that Plaintiff's motion to certify class, doc. 195, be DENIED, the motion for a preliminary injunction, doc. 198, be DENIED, that the court ORDER that the parties may file motions for summary judgment within 20 days of the entry of the order adopting this recommendation, and that the case be REMANDED to me for further proceedings.
IN CHAMBERS at Tallahassee, Florida, on July 20, 2011.

Case No. 4:07cv474-SPM/WCS

S/ William C. Sherrill, Jr. WILLIAM C. SHERRILL, JR. UNITED STATES MAGISTRATE JUDGE

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Page 16 of 16
NOTICE TO THE PARTIES A party may file specific, written objections to the proposed findings and recommendations within 14 days after being served with a copy of this report and recommendation. A party may respond to another party's objections within 14 days after being served with a copy thereof. Failure to file specific objections limits the scope of review of proposed factual findings and recommendations.
Case No. 4:07cv474-SPM/WCS

 
 Case 4:07-cv-00474-SPM-WCS Document 303 Filed 03/07/12 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR NORTHERN DISTRICT OF FLORIDA TALLAHASSEE DIVISION

FELIX GARCIA DC#482246,

Plaintiff,

v.

Case No. 4:07cv474-SPM/WCS

KENNETH S. TUCKER, in his official capacity as Secretary of the Florida Department of Corrections,

Defendant. _______________________________/

DEFENDANTS’ NOTICE OF FILING EXECUTED SETTLEMENT AND RELEASE OF ALL CLAIMS Defendant, KENNETH S. TUCKER, in his official capacity as
Secretary of the Florida Department of Corrections, through counsel, files this Settlement and Release of All Claims, and requests the Court to retain jurisdiction of the matter for the period specified in the agreement in order that the parties may comply with its terms.
Respectfully submitted,
PAMELA JO BONDI ATTORNEY GENERAL

/s/ Susan A. Maher SUSAN A. MAHER CHIEF ASSISTANT ATTORNEY GENERAL Florida Bar No. 0438359
Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050

Case 4:07-cv-00474-SPM-WCS Document 303 Filed 03/07/12 Page 2 of 2
Telephone: (850) 414-3300 Facsimile: (850) 488-4872 Email: susan.maher@myfloridalegal.com
CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished electronically to all counsel of record through the Court’s EM/ECF system, on this 7th day of March, 2012.
/s/ Susan A. Maher SUSAN A. MAHER

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 Case 4:07-cv-00474-SPM-WCS Document 1 Filed 11/07/07 Page 1 of 22

UNITED STATES

COURT FOR THE NORTHERN DISTRICT OF FLORIDA ~~~'-""-""-""-"=-=---- DIVISION

CIVIL RIGHTS COMPLAINT FORM TO BE USED BY PRISONERS IN ACTIONS UNDER 42 U,S,C. § 1983

VS.

CASENO: --------------

(To be assigned by Clerk)

(Enter name and title of each Defendant. If additional space is required, use the blank area~below and directly to the right.)
ANSWER ALL QUESTIONS ON THE FOLLOWING PAGES:

Case 4:07-cv-00474-SPM-WCS Document 1 Filed 11/07/07 Page 2 of 22

I.

PLAINTIFF:

State your full name, inmate number (if applicable), and full mailing address in the lines below.

Name of Plaintiff: Inmate Number Prison or Jail: Mailing address:

II.

DEFENDANT($):

State the name of the Defendant in the first line, official position in the second line, place of employment in the third line, and mailing address. Do the same for ffYJH\.L Defendant:

(1) De.fendant's name: . Official position: Employed at: Mailing address:

(2) Defendant's name: Official position: Employed at: Mailing address:

. (3) Defendant's name: Official position: Employed at: Mailing address:

ATTACH ADDITIONAL PAGES HERE TO NAME ADDITIONAL DEFENDANTS 2

Case 4:07-cv-00474-SPM-WCS Document 1 Filed 11/07/07 Page 3 of 22

NOTE: THE COURT WILL NOT REVIEW THE MERITS OF THE COMPLAINT UNLESS THE FOLLOWING QUESTIONS HAVE BEEN ANSWERED REGARDING EXHAUSTION OF
ADMINISTRATIVE REMEDIES AND ANY PRIOR LAWSUITS THAT HAVE BEEN FILED.
Ill. EXHAUSTION OF ADMINISTRATIVE REMEDIES
Exhaustion of administrative remedies is required prior to pursuing a civil rights action regarding conditions or events in any prison, jail, or detention center. 42 U.S.C. § 1997e(a). Plaintiff must submit copies of all grievances, appeals, and responses with this complaint to verify exhaustion. Failure to demonstrate exhaustion may be grounds for dismissal.

A. DOES YOUR COMPLAINT CONCERN EVE:NTS OCCURRING WITHIN THE FLORIDA

DEPARTMENT OF CORRECTIONS?

/

Yes( v(

No(

[If your answer is NO, proceed to Question B. If your answer is YES, answer all of the following questions in this subsection.}

1. Informal Grievance

a.

Did you submit an informal grievance?

Yes( j,~··

No( )

•!• If so, you must attach a copy of the grievance and response; exhibit

b.

If not, why?---~~-----------------

.2. Formal Grievance

a.

Did you submit a formal grievance?

Yes( t/).

No( )

ii li
•!• If so, you must attach a copy of the grievance and response; exhibit_/}__,

3. Appeal to the Office of the Secretary

a.

Did you submit an appea I to the Office of the Secretary?

Yes( v(

No( )

fr \1
+t• If so, you must attach a copy of the appeal and response; exhibit _Q_.

b. If not, why? -------'-;ft-"r-Jfz..:....t....,______________
I
3

Case 4:07-cv-00474-SPM-WCS Document 1 Filed 11/07/07 Page 4 of 22

4. Disciplinary Actions

a. Did you have a disciplinary hearing concerning this matter?

Yes( )

No(~

•!" If so, you must attach a copy of the disciplinary report and disciplinary hearing team's findings and decision to this form; exhibit _ __

b. Did you lose gaintime as a result of the disciplinary hearing?

Yes( )

No(v(

c. Has the gaintime since been restored?

Yes( )

No( )

B. DOES YOUR COMPLAINT CONCERN EVENTS OCCURRING WITHIN A COUNTY
JAIL OR DETENTION CENTER? fo/ft

Yes( )

No(vf

[If your answer is NO, proceed to Section IV of the complaint form. If your answer is YES, answer the following questions.]

1. Is there a grievance procedure at your institution or jail?

Yes( )

No( )

[If your answer is NO, proceed to Section IV of the complaint form. If your answeris YES, answer all of the following questions In this subsection.] ·

2. Did you submit a grievance concerning the facts relating to your complaint?

Yes( )

No( )

3. If your answer is YES:

a. What steps did you take? - - - - - - - - - - - - -

b. What were the results? - - - - - - - - - - - - - •:• If so, you must attach a copy ofthe grievance and response; exhibit _ _.

4. If your answer is NO, explain why n o t : - - - - - - - - - - - - - - -

4

Case 4:07-cv-00474-SPM-WCS Document 1 Filed 11/07/07 Page 5 of 22

NOTE: FAILURE TO DISCLOSE ALL PRIOR CIVIL CASES MAY RESULT IN THE DISMISSAL OF THIS CASE. IF YOU ARE UNSURE OF ANY PRIOR CASES YOU HAVE FILED, THAT FACT MUST BE DISCLOSED AS WELL.

IV. PREVIOUS LAWSUITS

A

Have you initiated other actions in state court dealing with the same or similar

facts/issues involved in this action?

Yes( )

No( v)

1. Parties to a. Plaintiff(s): ----~~'-LL---------

b. Defendant(s): ---......,_J~....L.f..----------

2. Name of judge: -----"-'--1-'--'-''--

Case#:_~~~---

3. County and judicial circuit: ----r~..L.L.--------------

4. Name of judge: -----..f-JC'-+-"J.---------

5. Approximate filing date: ---~~!.--------

6. If not still pending, date of dismissal: ----+.;~!.----

7. Reason for dismissal: --------.a:.;"---'-''-----------

8. Facts and claims of case: --------+"'-1-..<...:t....---------

(Attach additional pages as necessary to list state court cases.)

B. Have you initiated other actions in federal court dealing with the same or similar facts/issues involved in this action?

Yes( )

No(V')

1. Parties to previous action:
a. Plaintiff(s): ------t-::-,__,_.._____________
b. Defendant(s ): ----~-~-~-.~.--_ _ _ __...__ _ 2. District and judicial division: ---z...:'-f'-'-L--------~-..-........--3. Name of judge: -----'-.../I..!L-J-LL...4. Approximate filing date: ----"-'"'+..L.J!--------5. If not still pending, date of dismissal: -~r..:;...;~----6. Reason for dismissal: -------.,t.J<L;~'-----------7. Facts and claims of case: _ _ _ _ ____,<.:::...J'-"-''-----------

(Attach additional pages as necessary to list other federal court cases.) 5

Case 4:07-cv-00474-SPM-WCS Document 1 Filed 11/07/07 Page 6 of 22

C. Have you initiated other actions (besides those listed above in Questions (A) and (B)) in either state or federal court that relate to the fact or manner of your incarceration (Including habeas corpus petitions) or the conditions of your confinement (including civil rights complaints about any aspect of prison life, whether it be general circumstances or a particular episode, and whether it involved excessive force or some other wrong)?

Yes( )

No(

If YES, describe each action in the space provided below. If more than one action, describe all additional cases on a separate piece of paper, using the same format as below.

1. Parties to a. Plaintiff(s): - - ' - - - - - - ' - " ' - + - ' - " ' - - - - - - - - - b. Defendant(s): ----~<...L.l.---------
2. District and judicial division: -~'-L.I..--------------
3. Name ofjudge: -----,.--'-'-J"-'-'-4. Approximate filing date:

6. Reason for dismissal: --------+~..t...L--------,.---__...,-
7. Facts and claims of case: ------.......t.lf-'-'----------

(Attach additional pages as necessary to list cases.)

D. Have you ever had any actions in federal court dismissed as frivolous, malicious, failing to state a claim, or prior to service? If so, identify each and every case so dismissed:

Yes( )

No( \-1/

1. Parties to
a. Plaintiff(s): ------...........!.-f-.11-1----------
b. Defendant(s): -----....L.:~t..J--------2. District and judicial division: -~'-f-''-'---------3. Name of judge: -----.....t.3£.-F-£-'--- Case Docket#---'~~!:..-.---4. Approximate filing date: ----'-::.....r-.!.1/.--- Dismissal date: -~f-W'-----
5. Reason for dismissal: _____..,'+-'-'---------------
(Attach additional pages as necessary to list cases.)

6

Case 4:07-cv-00474-SPM-WCS Document 1 Filed 11/07/07 Page 7 of 22
v. STATEMENT FACTS:
State briefly the FACTS of this case. Describe how each Defendant was involved and what each person did or did not do which gives rise to your claim. In describing what happened, state the names of persons involved, dates, and places. Do not make any legal arguments or cite to any cases or statutes. You must set forth separate factual allegations in separately numbered paragraphs. You may make copies of this page if necessary to supply all the facts. Barring extraordinary circumstances, no more than five (5) additional pages should be attached. (If there are facts which are not related to this same basic incident or issue, they must be addressed in a separate civil rights complaint.)

7

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Case 4:07-cv-00474-SPM-WCS Document 1 Filed 11/07/07 Page 18 of 22
VI. STATEMENT OF. CLAIMS:
State what rights under the Constitution, laws, or treaties of the United States you claim have been violated. Be specific. Number each separate claim and relate It to the facts alleged in Section V. If claims are not related to the same basic incident or issue, they must be addressed in a separate civil

VII. RELIEF REQUESTED:
State briefly what relief you seek from the Court Do not make legal arguments or cite to cases/ statutes.

INCLUDING ALL CONTINUATION PAGES, ARE TRUE AND CORRECT.

IF MAILED BY PRISONER:

I declare (or certify, verify, or affirm) under penalty of perjury that this complaint was (check one):

'¥ 0 delivered to prison officials for mailing or 0 deposited in the prison's internal mail system on:

the ·

day of A.JPIIt.lfdtH

, 20~

·

"

Revised 07/02
8

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 Case 4:07-cv-00474-SPM-WCS Document 135 Filed 08/12/10 Page 1 of 5

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA TALLAHASSEE DIVISION

Page 1 of 5

FELIX GARCIA, Plaintiff,
vs. WALTER McNEIL, TOMMY YOUNG, MARTIE TAYLOR, and LONG N. DO,
Defendants. /

Case No. 4:07cv474-SPM/WCS

REPORT AND RECOMMENDATION Plaintiff, who is represented by counsel in this prisoner civil rights action, filed a revised motion seeking leave to file a second amended complaint. Doc. 120. Plaintiff Garcia seeks to add two additional prisoner Plaintiffs with similar, if not identical, claims, and to allege a class action. Doc. 120, p. 3. The proposed amended complaint is document 121. Defendants filed a response. Doc. 128. With leave, Plaintiff filed a reply. Doc. 132. FED. R. CIV. P. 15(a)(2) provides that amendment after a responsive pleading has been served, absent written consent of the adverse party, requires leave of court, but "[t]he court should freely give leave when justice so requires."

Case 4:07-cv-00474-SPM-WCS Document 135 Filed 08/12/10 Page 2 of 5
Page 2 of 5
This policy of rule 15(a) in liberally permitting amendments to facilitate determination of claims on the merits circumscribes the exercise of the district court's discretion; thus, unless a substantial reason exists to deny leave to amend, the discretion of the district court is not broad enough to permit denial. Shipner v. Eastern Air Lines, Inc., 868 F.2d 401, 407 (11th Cir. 1989). "A proposed amendment may be denied for futility 'when the complaint as amended would still be properly dismissed.' " Coventry First, LLC v. McCarty, 605 F.3d 865, 869 (11th Cir. 2010) (quoting Cockrell v. Sparks, 510 F.3d 1307, 1310 (11th Cir.2007)). Defendants object to joinder of two new Plaintiffs. Citing Hubbard v. Haley, 262 F.3d 1194, 1198 (11th Cir. 2001), cert. denied 534 U.S. 1136 (2002), Defendants argue that "joining of multiple Plaintiffs into a lawsuit travelling [sic] under one filing fee" would be futile. Doc. 128, p. 2. Defendants contend that joining two new Plaintiffs would "circumvent this holding [in Hubbard] and permit each of the new Plaintiffs to avoid paying their own filing fee for a case subject to the PLRA." Id. Plaintiff, in response, asserts that Defendants have misunderstood "the relief sought in Plaintiff's Motion." Doc. 132, p. 2. Plaintiff states that the motion "alleges the existence of a Plaintiff class pursuant to Federal Rule of Civil Procedure 23, not the joinder of multiple individual plaintiffs pursuant to Federal Rule of Civil Procedure 20 or the intervention of several prisoner plaintiffs pursuant to Federal Rule of Civil Procedure 24." Id. Plaintiff is moving "to convert this existing lawsuit into a class action pursuant to Rule 23." Id. Indeed, the proposed revised second amended complaint alleges that "joinder of all members" of the class of inmates is impracticable. Doc. 121, p. 6. Plaintiff "concedes the PLRA requires – at least in this circuit – that each pro se prisoner
Case No. 4:07cv474-SPM/WCS

Case 4:07-cv-00474-SPM-WCS Document 135 Filed 08/12/10 Page 3 of 5
Page 3 of 5
filing a civil action with multiple plaintiffs in a Rule 20 joinder action must" each pay the full filing fee. Doc. 132, p. 2.
In Hubbard v. Haley, a group of 18 prisoners dialysis patients filed a pro se civil rights case alleging that their medical care was below Eighth Amendment standards. Hubbard, 262 F.3d at 1195. The district court sua sponte dismissed the case, "finding that each plaintiff had to file a separate complaint and pay a separate filing fee." 262 F.3d at 1195. "Several of the plaintiffs filed a motion for reconsideration of the dismissal coupled with a motion for class certification." Id. "The district court denied both the motion for class certification and the motion for reconsideration." Id. An appeal was filed to review the question of law as to whether the Prison Litigation Reform Act permits multi-plaintiff in forma pauperis civil actions. Id., at 1196.
The Eleventh Circuit "noted that the intent of Congress in promulgating the PLRA was to curtail abusive prisoner tort, civil rights and conditions of confinement litigation." Id., at 1196, citing Anderson v. Singletary, 111 F.3d 801, 805 (11th Cir. 1997). The Court rejected the plaintiffs' argument that the "PLRA should not be read to repeal Rule 201 but to harmonize with Rule 20." 262 F.3d at 1197. The Court said: "Finally, to the extent that the Rules Enabling Act, as expressed in Rule 20, actually conflicts with the PLRA, we hold that the statute repeals the Rule." 262 F.3d at 1198. Hubbard
1 Rule 20, which concerns permissive joinder of parties, provides: Persons may join in one action as plaintiffs if: (A) they assert any right to relief jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and (B) any question of law or fact common to all plaintiffs will arise in the action. FED. R. CIV. P. 20(a)(1).
Case No. 4:07cv474-SPM/WCS

Case 4:07-cv-00474-SPM-WCS Document 135 Filed 08/12/10 Page 4 of 5
Page 4 of 5
concluded "that the PLRA clearly and unambiguously requires that 'if a prisoner brings a civil action or files an appeal in forma pauperis, the prisoner shall be required to pay the full amount of a filing fee.' " Id.
Other courts disagree in part. In Boriboune v. Berge, 391 F.3d 852 (7th Cir. 2004), several pro se prisoners sought to join in one complaint pursuant to Rule 20. 391 F.3d at 853. The court held that the PLRA did not repeal Rule 20, and prisoners may join in a single complaint. Id., 854. Then, citing Hubard, the court held that each prisoner had to pay the full filing fee. Id., at 855-856. Likewise, in Hagan v. Rogers, 570 F.3d 146 (3d Cir. 2009), pro se prisoners sought to join in a single complaint. 570 F.3d at 149. Citing Hubbard and Boriboune, the court held that each prisoner is liable for the full filing fee, but joinder is permitted and the PLRA did not repeal Rule 20. Id., at 152-156. Finally, in the Sixth Circuit there is an administrative order that both allows joinder and assesses only one filing fee, to be paid jointly by the prisoners. In re Prison Litigation Reform Act, 105 F.3d 1131, 1137-1138 (6th Cir. 1997).
I recognize that Hubbard found only a limited repeal of Rule 20, limited by the facts of that case. The prisoners in Hubbard did not have a lawyer and could not bring a class action,2 and it is arguable that a prisoner who is represented by a lawyer will be less likely to bring a frivolous claim. Indeed, in the case at bar, Defendant's motion for summary judgment as to Plaintiff Garcia's claim has been denied, so at least Garcia's claim is not frivolous. But the Prison Litigation Reform Act says nothing about whether the prisoner has a lawyer or not. It only addresses liability for the filing fee. The
2 A pro se plaintiff "cannot be an adequate class representative." Gray v. Levine, 455 F. Supp. 267, 268 (D. Md. 1978), citing Oxendine v. Williams, 509 F.2d 1405, 1407 (4th Cir. 1975).
Case No. 4:07cv474-SPM/WCS

Case 4:07-cv-00474-SPM-WCS Document 135 Filed 08/12/10 Page 5 of 5
Page 5 of 5
addition of the two new Plaintiffs is governed by Rule 20, not Rule 23. Hubbard decided that since every prisoner must pay a full filing fee, and since other litigants who join together in one complaint pay only one filing fee, prisoners cannot join under Rule 20. That means that the prisoners here, who have a lawyer and who do not pursue frivolous claims, cannot join under Rule 20 in light of Hubbard – even if each of them pays $350. This court is bound by Hubbard.
Defendants have not addressed proposed amendment to add class action allegations. Those allegations should be permitted.
Accordingly, it is RECOMMENDED that Plaintiff's motion to amend, doc. 120, be GRANTED in part and DENIED in part. Plaintiff Garcia should be permitted to file an amended complaint with class action allegations, but the additional Plaintiffs should not be permitted to join pursuant to Rule 20.
IN CHAMBERS at Tallahassee, Florida, on August 12, 2010.
s/ William C. Sherrill, Jr. WILLIAM C. SHERRILL, JR. UNITED STATES MAGISTRATE JUDGE
NOTICE TO THE PARTIES A party may file specific, written objections to the proposed findings and recommendations within 14 days after being served with a copy of this report and recommendation. A party may respond to another party's objections within 14 days after being served with a copy thereof. Failure to file specific objections limits the scope of review of proposed factual findings and recommendations.
Case No. 4:07cv474-SPM/WCS

 
 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA
TALLAHASSEE DIVISION

FELIX GARCIA,

Plaintiff,

vs.

CASE NO. 4:07-cv-474-SPM/WCS

WALTER MCNEIL, et al.,

Defendants.

_______________________________/

ORDER ADOPTING REPORT AND RECOMMENDATION

THIS CAUSE comes before the Court for consideration of the Magistrate

Judge’s Report and Recommendation (doc. 135), which recommends that the

Plaintiff's Motion to File a Second Amended Complaint (doc. 120) be granted in

part and denied in part. The Parties have been afforded an opportunity to file

objections pursuant to Title 28, United States Code, Section 636(b)(1). Plaintiff

filed an objection (doc. 138), to which Defendants responded (doc. 139).

Pursuant to Title 28, United States Code, Section 636(b)(1), I have conducted a

de novo review of the sections of the report to which objections have been made.

I find that the Report and Recommendation is correct and should be adopted.

Plaintiff objects to the Magistrate Judge's conclusion that Plaintiff, an

inmate proceeding in forma pauperis (doc. 4), is foreclosed from amending his

complaint so as to add two additional prisoner plaintiffs in a proposed class action, pursuant to the Eleventh Circuit's interpretation of the Prison Litigation Reform Act [PLRA] in Hubbard v. Haley, 262 F.3d 1194 (11th Cir. 2001). 28 U.S.C. § 1915(b)(1) requires that "if a prisoner brings a civil action or files an appeal in forma pauperis, the prisoner shall be required to pay the full amount of the filing fee." In Hubbard, the Eleventh Circuit affirmed the district court's dismissal of a civil rights action brought by 18 prisoner plaintiffs, concluding that "[b]ecause the plain language of the PLRA requires that each prisoner proceeding IFP pay the full filing fee, we hold that the district court properly dismissed the multi-plaintiff action[.]" 262 F.3d at 1198.
Plaintiff seeks to distinguish the proposed addition of two prisoner plaintiffs in the instant case from the multi-plaintiff action which was properly dismissed in the Hubbard case by pointing out that, as a proposed class action, the addition of plaintiffs in the present case is governed by Federal Rule of Civil Procedure 23, a distinct procedural provision from Federal Rule of Civil Procedure 20, which was at issue in Hubbard. However, the Court finds that the maintenance of any action involving multiple prisoner plaintiffs for which only one filing fee has been paid is contrary to the Eleventh Circuit's holding in Hubbard, whether such association of plaintiffs is construed as governed by the joinder provisions of Rule 20 or the class action provisions of Rule 23, as the effect of either aggregation of plaintiffs is to violate the filing fee requirement of the Prison
2

Litigation Reform Act as expressed in Hubbard. See Daker v. Wetherington, 469 F.Supp.2d 1231 (N.D. Ga. 2007) (ruling that the PLRA prevents the intervention of a prisoner in the action of another prisoner under Federal Rule of Civil Procedure 24).
Plaintiff's counsel also cites two multiple plaintiff prisoner suits, one a class action, which the Eleventh Circuit has ruled on since Hubbard was decided, in support of the proposition that such actions are permissible, even though only one filing fee was paid for each. See Chandler v. Crosby, 379 F.3d 1278 (11th Cir. 2004); Thomas v. Bryant, 614 F.3d 1288 (11th Cir. 2010). However, it appears that the issues of the filing fee requirement and the effect of the Hubbard decision were not raised or addressed in either of these cases.
As "the intent of Congress in promulgating the PLRA was to deter frivolous civil actions brought by prisoners by requiring each individual prisoner to pay the full amount of the required fee[,]" Plaintiff is foreclosed from amending his complaint so as to add two additional named prisoner plaintiffs in a proposed class action. Hubbard, 262 F.3d at 1195.
Accordingly, it is hereby ORDERED AND ADJUDGED as follows: 1. The Magistrate Judge’s Report and Recommendation (doc. 135) is
adopted and incorporated by reference into this order. 2. Plaintiff's Motion to Amend (doc. 120) is granted in part and denied
in part. Plaintiff is permitted to file an amended complaint with class
3

action allegations, but the addition of prisoner plaintiffs is not permitted. DONE AND ORDERED this twenty-second day of November, 2010.
s/ Stephan P. Mickle
Stephan P. Mickle Chief United States District Judge
4

 
 ,_

Case 4:07-cv-00474-SPM-WCS Document 184 Filed 02/08/11 Page 2 of 3

IN THE UNITED STATES COURT OF

PEALSU.S.

n£1 ('Ajij\(f Of

~\r~F.~~S

FOR THE ELEVENTH CIRCUIT

-r~··.;.r·.·.·\;.;.!.~.:.'\1_:.~.;...C\;...A~_C_ll·l_:'1

n \-to r; 1011

No. 10-15856-GG

J{MM \.E'(
f'l ~.RK

FELIX GARCIA,
TRACY 0. BLACKBURN, CHARLES B. JOHNSON,

versus

Plaintiff, Movants -Appellants,

MARTIE TAYLOR, TOMMY YOUNG, LONG N. DO, Chief Health Officer, SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, FLORIDA DEPARTMENT OF CORRECTIONS,

Defendants -Appellees.

Appeal from the United States District Court for the Northern District of Florida

Before EDMONDSON, PRYOR, and MARTIN, Circuit Judges. BY THE COURT:
This appeal is DISMISSED, sua sponte, for lack ofjurisdiction. The district court's November 22, 2010, order denying leave to amend the complaint is not fmal or appealable. See

Case 4:07-cv-00474-SPM-WCS Document 184 Filed 02/08/11 Page 3 of 3 28 U.S.C. § 1291; Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1225-26, 93 L.Ed. 1528 (1949); Wells v. South Main Bank, 532 F.2d 1005, 1006 (5th Cir. 1976).
No motion for reconsideration may be filed unless it complies with the timing and other requirements of 11th Cir.R. 27-2 and all other applicable rules.
2

 
 UNITED STATES DISTRICT COURT NORTHER DISTRICT OF FLORIDA
TALLAHASSEE DIVISION

Felix Garcia, individually

Plaintiff, vs.

Case No.: 4:07-CV-474-SPM/WCS

Kenneth S. Tucker, in his official capacity as Secretary of the Florida Department of Corrections

Defendant. I
--------------~--~-----------
SETTLEMENT AGREEMENT

Plaintiff, Felix Garcia, individually, and Defendant. Kenneth S. Tucker, in his official

capacity as Secretary of the Florida Department of Corrections, mediated this case on August 2,

2012. The parties resolved their dispute under the following terms and conditions:

1. On or about February 22, 2012, the parties entered into that certain Settlement

Agreement and Release of All Claims wherein, among other things, Defendant agreed to pay

Plaintiffs counsels' reasonable attorney's fees, expenses and costs of litigation. The parties

further agreed to mediate said claims in the event they could not be resolved through informal

· discussions.

2. Defendant agrees to pay and Plaintiffs counsels' agree to accept the total sum of

$237,500.00 in settlement of any and all claims for attorney's fees, expenses and costs of

litigation filed, that could have been filed or that could later be filed against Defendant arising

out of counsels' representation of Plaintiff in the above entitled matter. At counsels' request, the

settlement draft will be made payable to the trust account or Florida Justice Institute, Inc., which

will be responsible for disbursing any payment to Jacksonville Area Legal Aid, Inc.

3. The parties further agree to file a Joint Voluntary Dismissal with Prejudice.

4. Mediation costs will be paid by Defendant.

DATED this 2d day of August, 2012.
f?J1 .\ ui{ ~ (At~, <C\
Randall Chal1en Berg, Jr., "S . Florida Justice Institute, In . · 3750 Miami Tower, 100 SE Second Street Miami, FL 33131-2309 Plaintiff's Counsel

Susan A. Maher, Esq. Chief Assistant Attorney General Office of the Attorney General 400 South Monroe St., #PLOl Tallahassee, FL 32399-6536 Defendant's Counsel

Sharon Caserta, Esq. Jacksonville Area Legal Aid, Inc 126 W. Adams Street
Jacksonville, FL 32202
Plaintiffs Counsel

Michael G. Maida, P.A. Post Office Box 12093 Tallahassee, FL 32317-2093 (850) 425-8124 Mediator, #0553 7R

•

UNITED STATES DISTRICT COURT NORTHER DISTRICT OF FLORIDA
TALLAHASSEE DIVISION

Felix Garcia, individually

Plaintiff, vs.

Case No.: 4:07-CV-474-SPM/WCS

Kenneth S. Tucker, in his official capacity as Secretary of the Florida Department of Corrections

Defendant. I
------------------------~~·
MEDIATION REPORT

The parties mediated this case on August 2, 2012 and hereby report to the Court that all

issues have been resolved and the case settled at mediation. DATED this 2d day of August, 2012.

Michael G. Maida, P.A. Post Office Box 12093 Tallahassee, FL 32317-2093 (850) 425-8124 Mediator. #05537R
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing was served by U.S. Mail/Electronic Mail/ or Hand Delivered to Randall Challen Berg, Jr., Esq., Florida Justice Institute, Inc., 3750 Miami Tower, 100 SE Second Street, Miami, FL 33131-2309 and Susan A. Maher, Esq., Chief Assistant Attorney General, 400 South Monroe St., #PLOI, Tallahassee, FL 32399-6536 this 2d day of August, 2012.
M~q-

 
 CLOSED,CLERK_1
U.S. District Court Northern District of Florida (Tallahassee) CIVIL DOCKET FOR CASE #: 4:07−cv−00474−SPM−WCS

GARCIA v. MCNEIL et al Assigned to: SENIOR JUDGE STEPHAN P MICKLE Referred to: MAGISTRATE JUDGE WILLIAM C SHERRILL, JR Case in other court: 11th Circuit, 10−15856−GG Cause: 42:1983 Prisoner Civil Rights
Plaintiff

Date Filed: 11/07/2007 Date Terminated: 05/11/2012 Jury Demand: Both Nature of Suit: 555 Prison Condition Jurisdiction: Federal Question

FELIX GARCIA

represented by JOSHUA AARON GLICKMAN SOCIAL JUSTICE LAW COLLECTIVE PL 6709 W 119TH STREET #198 OVERLAND PARK, KS 66209 913−213−3064 Email: josh@sjlawcollective.com TERMINATED: 07/05/2012

RANDALL CHALLEN BERG FLORIDA JUSTICE INSTITUTE INC − MIAMI FL 3750 BANK OF AMERICA TOWER 100 SE SECOND ST MIAMI, FL 33131 305−358−2081 Fax: 305−358−0910 Email: rberg@floridajusticeinstitute.org ATTORNEY TO BE NOTICED

SHARON CASERTA JACKSONVILLE AREA LEGAL AID − JACKSONVILLE FL 126 W ADAMS ST JACKSONVILLE, FL 32202 904−353−1320 Fax: 904−356−8285 Email: sharon.caserta@jaxlegalaid.org ATTORNEY TO BE NOTICED

SHAWN ALEX HELLER SOCIAL JUSTICE LAW COLLECTIVE PL 434 SKINNER BLVD STE APT 206 DUNEDIN, FL 34698 202−709−5744 Fax: 866−893−0416 Email: shawn@shawnheller.com ATTORNEY TO BE NOTICED

Plaintiff TRACY O BLACKBURN

represented by JOSHUA AARON GLICKMAN (See above for address) TERMINATED: 07/05/2012

RANDALL CHALLEN BERG (See above for address)

Plaintiff CHARLES B JOHNSON
V. Defendant JAMES MCDONOUGH TERMINATED: 04/24/2008
Defendant MARTIE TAYLOR

ATTORNEY TO BE NOTICED
SHARON CASERTA (See above for address) ATTORNEY TO BE NOTICED
SHAWN ALEX HELLER (See above for address) ATTORNEY TO BE NOTICED
represented by JOSHUA AARON GLICKMAN (See above for address) TERMINATED: 07/05/2012
RANDALL CHALLEN BERG (See above for address) ATTORNEY TO BE NOTICED
SHARON CASERTA (See above for address) ATTORNEY TO BE NOTICED
SHAWN ALEX HELLER (See above for address) ATTORNEY TO BE NOTICED
represented by SHERRY ANITA TOOTHMAN ARNOLD & SICHTA 6279 DUPONT STATION COURT JACKSONVILLE, FL 32257 850−414−3300 Fax: 850−488−4872 Email: ToothmaS@dor.state.fl.us TERMINATED: 07/07/2009 LEAD ATTORNEY
represented by SHERRY ANITA TOOTHMAN (See above for address) TERMINATED: 07/07/2009 LEAD ATTORNEY
JONATHAN PATRICK SANFORD FLORIDA ATTORNEY GENERAL − TALLAHASSEE FL THE CAPITOL PL−01 TALLAHASSEE, FL 32399−1050 850−717−3626 Fax: 850−410−4133 Email: sanford.jonathan@mail.dc.state.fl.us ATTORNEY TO BE NOTICED
MARK JERRY HIERS FLORIDA COMMISSION ON OFFENDER REVIEW 4070 ESPLANADE WAY TALLAHASSEE, FL 32399 850−488−4460

Defendant TOMMY YOUNG
Defendant LONG N DO CHIEF HEALTH OFFICER
Defendant WALTER A MCNEIL TERMINATED: 10/11/2011

Email: markhiers@fcor.state.fl.us TERMINATED: 03/30/2010
SUSAN ADAMS MAHER 1286 CORDOVA CIRCLE TALLAHASSEE, FL 32317 850−877−1530 Email: bogart.sam@att.net ATTORNEY TO BE NOTICED
represented by SHERRY ANITA TOOTHMAN (See above for address) TERMINATED: 07/07/2009 LEAD ATTORNEY
JONATHAN PATRICK SANFORD (See above for address) ATTORNEY TO BE NOTICED
MARK JERRY HIERS (See above for address) TERMINATED: 03/30/2010
SUSAN ADAMS MAHER (See above for address) ATTORNEY TO BE NOTICED
represented by SHERRY ANITA TOOTHMAN (See above for address) TERMINATED: 07/07/2009 LEAD ATTORNEY
JONATHAN PATRICK SANFORD (See above for address) ATTORNEY TO BE NOTICED
MARK JERRY HIERS (See above for address) TERMINATED: 03/30/2010
SUSAN ADAMS MAHER (See above for address) ATTORNEY TO BE NOTICED
represented by SHERRY ANITA TOOTHMAN (See above for address) TERMINATED: 07/07/2009 LEAD ATTORNEY
JONATHAN PATRICK SANFORD (See above for address) ATTORNEY TO BE NOTICED
MARK JERRY HIERS (See above for address) TERMINATED: 03/30/2010
SUSAN ADAMS MAHER (See above for address) ATTORNEY TO BE NOTICED

Defendant FLORIDA DEPARTMENT OF CORRECTIONS Defendant EDWIN BUSS TERMINATED: 10/11/2011
Defendant KENNETH S TUCKER SECRETARY DEPARTMENT OF CORRECTIONS

represented by JONATHAN PATRICK SANFORD (See above for address) ATTORNEY TO BE NOTICED
SUSAN ADAMS MAHER (See above for address) ATTORNEY TO BE NOTICED
represented by JONATHAN PATRICK SANFORD (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
SUSAN ADAMS MAHER (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 11/07/2007
11/07/2007 11/08/2007
11/08/2007 11/14/2007
11/14/2007
12/03/2007
12/03/2007 12/03/2007
12/05/2007

# Docket Text
1 COMPLAINT against JAMES MCDONOUGH, MARTIE TAYLOR, TOMMY YOUNG, LONG N DO, filed by FELIX GARCIA. (No Service Copies) (Attachments: # 1 Exhibit) (pll) (Entered: 11/08/2007)
2 MOTION for Leave to Proceed in forma pauperis by FELIX GARCIA. (pll) (Entered: 11/08/2007)
ACTION REQUIRED BY MAGISTRATE JUDGE: Chambers of Magistrate Judge WILLIAM C SHERRILL JR notified that action is needed Re: 1 Complaint, 2 MOTION for Leave to Proceed in forma pauperis. Motions referred to WILLIAM C SHERRILL, JR. (pll) (Entered: 11/08/2007)
3 Notice to Pro Se (pll) (Entered: 11/08/2007)
4 ORDER granting 2 Motion for Leave to Proceed in forma pauperis to the extent that he will not have to prepay the filing fee. Signed by Judge WILLIAM C SHERRILL JR on 11/14/07. ***Copy of order with letter sent to DOC. (pll) (Entered: 11/15/2007)
5 ORDER re 1 Complaint filed by FELIX GARCIA. Signed by Judge WILLIAM C SHERRILL JR on 11/14/07. Amended Pleadings due by 12/14/2007. (pll) ***Copy of 1983 form mailed with order. (Entered: 11/15/2007)
6 AMENDED COMPLAINT against JAMES MCDONOUGH, MARTIE TAYLOR, TOMMY YOUNG, LONG N DO, filed by FELIX GARCIA. (Attachments: # 1 Exhibit) (4 Service Copies) (pll) (Entered: 12/03/2007)
7 Letter from Felix Garcia (pll) (Entered: 12/03/2007)
ACTION REQUIRED BY MAGISTRATE JUDGE: Chambers of Magistrate Judge MAGISTRATE JUDGE WILLIAM C SHERRILL, JR notified that action is needed Re: 7 Letter, 6 Amended Complaint. (pll) (Entered: 12/03/2007)
8 ORDER DIRECTING SERVICE by the USM re 6 Amended Complaint filed by FELIX GARCIA. ( Notify Chambers no later than 2/5/2008.) Signed by MAGISTRATE JUDGE WILLIAM C SHERRILL, JR on 12/5/07. ***Order, service copies and summons sent to USM. Consent Form mailed to Plaintiff. (pll) (Entered: 12/05/2007)

12/17/2007 12/17/2007 12/18/2007 12/18/2007 12/20/2007
12/21/2007 12/28/2007 02/11/2008 02/11/2008 02/12/2008
02/12/2008
02/12/2008 02/19/2008 02/21/2008
02/21/2008 03/13/2008 03/14/2008

9 SUMMONS Returned Executed by FELIX GARCIA. TOMMY YOUNG served on 12/12/2007, answer due 2/10/2008. (pll) (Entered: 12/20/2007)
10 SUMMONS Returned Executed by FELIX GARCIA. N LONG served on 12/12/2007, answer due 2/10/2008. (pll) (Entered: 12/20/2007)
11 SUMMONS Returned Executed by FELIX GARCIA. MARTIE TAYLOR served on 12/11/2007, answer due 2/9/2008. (pll) (Entered: 12/20/2007)
12 SUMMONS Returned Executed by FELIX GARCIA. Summons Returned Executed as to JAMES MCDONOUGH on 12/12/07. Answer due 2/10/08. (pll) (Entered: 12/20/2007)
ACTION REQUIRED BY MAGISTRATE JUDGE: Chambers of MAGISTRATE JUDGE WILLIAM C SHERRILL, JR notified that action is needed Re: 9 Summons Returned Executed, 10 Summons Returned Executed, 11 Summons Returned Executed, 12 Summons Returned Executed. (pll) (Entered: 12/20/2007)
14 Partial Filing fee: $ 2.00, receipt number 4−3604. Balance remaining $348.00. (krb) (Entered: 01/02/2008)
13 NOTICE of Appearance by SHERRY ANITA TOOTHMAN on behalf of JAMES MCDONOUGH, MARTIE TAYLOR, TOMMY YOUNG, N LONG (TOOTHMAN, SHERRY) (Entered: 12/28/2007)
ACTION REQUIRED BY MAGISTRATE JUDGE: Chambers of MAGISTRATE JUDGE WILLIAM C SHERRILL, JR notified that action is needed Re: 8 Order. No answer filed. (pll) (Entered: 02/11/2008)
15 First MOTION to Extend Time to File Special Reports by JAMES MCDONOUGH, MARTIE TAYLOR, TOMMY YOUNG, N LONG. (TOOTHMAN, SHERRY) (Entered: 02/11/2008)
ACTION REQUIRED BY MAGISTRATE JUDGE: Chambers of MAGISTRATE JUDGE WILLIAM C SHERRILL, JR notified that action is needed Re: 15 First MOTION to Extend Time to File Special Reports. Motions referred to WILLIAM C SHERRILL, JR. (pll) (Entered: 02/12/2008)
16 ORDER granting 15 Motion to Extend Time. Set/Reset Deadlines: JAMES MCDONOUGH answer due 3/13/2008; MARTIE TAYLOR answer due 3/13/2008; TOMMY YOUNG answer due 3/13/2008; N LONG answer due 3/13/2008. Signed by MAGISTRATE JUDGE WILLIAM C SHERRILL, JR on 2/12/08. (pll) (Entered: 02/12/2008)
Set/Reset Deadlines: JAMES MCDONOUGH answer due 3/13/2008; MARTIE TAYLOR answer due 3/13/2008; TOMMY YOUNG answer due 3/13/2008; N LONG answer due 3/13/2008. (pll) (Entered: 02/12/2008)
17 MOTION to Appoint Counsel by FELIX GARCIA. (pll) (Entered: 02/21/2008)
ACTION REQUIRED BY MAGISTRATE JUDGE: Chambers of MAGISTRATE JUDGE WILLIAM C SHERRILL, JR notified that action is needed Re: 17 MOTION to Appoint Counsel. Motions referred to WILLIAM C SHERRILL, JR. (pll) (Entered: 02/21/2008)
18 ORDER denying without prejudice 17 Motion to Appoint Counsel. Signed by MAGISTRATE JUDGE WILLIAM C SHERRILL, JR on 2/21/08. (pll) (Entered: 02/21/2008)
19 Second MOTION for Extension of Time to File Answer re 6 Amended Complaint, MOTION to Extend Time by JAMES MCDONOUGH, MARTIE TAYLOR, TOMMY YOUNG, N LONG. (TOOTHMAN, SHERRY) (Entered: 03/13/2008)
ACTION REQUIRED BY MAGISTRATE JUDGE: Chambers of MAGISTRATE JUDGE WILLIAM C SHERRILL, JR notified that action is needed Re: 19 Second MOTION for Extension of Time to File Answer re 6 Amended Complaint MOTION to Extend Time. Motions referred to WILLIAM C SHERRILL, JR. (pll) (Entered: 03/14/2008)

03/17/2008
03/21/2008 03/25/2008 04/15/2008 04/16/2008
04/16/2008 04/16/2008 04/24/2008 04/30/2008 05/01/2008
05/02/2008 05/02/2008 05/05/2008 05/05/2008 05/06/2008 05/09/2008 05/12/2008 05/13/2008

20 ORDER granting 19 Motion for Extension of Time to Answer re 6 Amended Complaint. JAMES MCDONOUGH answer due 4/15/2008; MARTIE TAYLOR answer due 4/15/2008; TOMMY YOUNG answer due 4/15/2008; N LONG answer due 4/15/2008. Signed by MAGISTRATE JUDGE WILLIAM C SHERRILL, JR on 3/17/08. (pll) (Entered: 03/17/2008)
21 NOTICE of Clarification by FELIX GARCIA (pll) (Entered: 03/25/2008)
ACTION REQUIRED BY MAGISTRATE JUDGE: Chambers of MAGISTRATE JUDGE WILLIAM C SHERRILL, JR notified that action is needed Re: 21 Notice (Other). (pll) (Entered: 03/25/2008)
22 Third MOTION to Extend Time to answer complaint by JAMES MCDONOUGH, MARTIE TAYLOR, TOMMY YOUNG, N LONG. (TOOTHMAN, SHERRY) (Entered: 04/15/2008)
ACTION REQUIRED BY MAGISTRATE JUDGE: Chambers of MAGISTRATE JUDGE WILLIAM C SHERRILL, JR notified that action is needed Re: 22 Third MOTION to Extend Time to answer complaint. Motions referred to WILLIAM C SHERRILL, JR. (pll) (Entered: 04/16/2008)
23 ORDER OF COURT − Granting 22 Defendant's Motion to Extend Time−The time for filing a response to the complaint is extended to 5/2/2008. Signed by MAGISTRATE JUDGE WILLIAM C SHERRILL, JR on 04/16/08. (dlt) (Entered: 04/17/2008)
Set Deadlines Per Order 23 (Internal deadline for referral to judge if Defendant's response to complaint not filed earlier: 5/2/2008). (dlt) (Entered: 04/17/2008)
24 ORDER, The Clerk of the Court shall substitute Walter A. McNeil in place of James McDonough. ( Notify Chambers on 5/2/2008.). Signed by MAGISTRATE JUDGE WILLIAM C SHERRILL, JR on 4/24/08. (pll) (Entered: 04/24/2008)
25 MOTION to Intervene by FELIX GARCIA. (pll) (Entered: 05/01/2008)
ACTION REQUIRED BY MAGISTRATE JUDGE: Chambers of MAGISTRATE JUDGE WILLIAM C SHERRILL, JR notified that action is needed Re: 25 MOTION to Intervene. Motions referred to WILLIAM C SHERRILL, JR. (pll) (Entered: 05/01/2008)
ACTION REQUIRED BY MAGISTRATE JUDGE: Chambers of MAGISTRATE JUDGE WILLIAM C SHERRILL, JR notified that action is needed Re: 24 Order − per order. (pll) (Entered: 05/02/2008)
26 ANSWER to 6 Amended Complaint by WALTER A MCNEIL, MARTIE TAYLOR, TOMMY YOUNG, N LONG. (TOOTHMAN, SHERRY) (Entered: 05/02/2008)
ACTION REQUIRED BY MAGISTRATE JUDGE: Chambers of MAGISTRATE JUDGE WILLIAM C SHERRILL, JR notified that action is needed Re: 26 Answer to Amended Complaint. (pll) (Entered: 05/05/2008)
27 Amended ANSWER to Complaint Plaintiff's Amended Complaint (Doc. 7) by WALTER A MCNEIL, MARTIE TAYLOR, TOMMY YOUNG, N LONG. (TOOTHMAN, SHERRY) (Entered: 05/05/2008)
ACTION REQUIRED BY MAGISTRATE JUDGE: Chambers of MAGISTRATE JUDGE WILLIAM C SHERRILL, JR notified that action is needed Re: 27 Answer to Complaint. (pll) (Entered: 05/06/2008)
28 RESPONSE in Opposition re 25 MOTION to Intervene filed by WALTER A MCNEIL, MARTIE TAYLOR, TOMMY YOUNG, N LONG. (TOOTHMAN, SHERRY) (Entered: 05/09/2008)
ACTION REQUIRED BY MAGISTRATE JUDGE: Chambers of MAGISTRATE JUDGE WILLIAM C SHERRILL, JR notified that action is needed Re: 28 Response in Opposition to Motion. (pll) (Entered: 05/12/2008)
29 ORDER denying 25 Motion to Intervene. Signed by MAGISTRATE JUDGE WILLIAM C SHERRILL, JR on 5/13/08. (pll) (Entered: 05/13/2008)

05/13/2008 05/21/2008 05/22/2008
05/28/2008 09/02/2008 09/03/2008
09/09/2008
09/10/2008
09/10/2008 09/10/2008 10/03/2008 10/06/2008 05/04/2009 05/05/2009
05/08/2009
06/01/2009 06/03/2009

30 CASE MANAGEMENT AND SCHEDULING ORDER. Signed by MAGISTRATE JUDGE WILLIAM C SHERRILL, JR on 5/13/08. Discovery due by 8/11/2008. Dispositive Motions to be filed by 8/31/2008. (pll) (Entered: 05/13/2008)
31 MOTION to Appoint Counsel by FELIX GARCIA. (dlt) (Entered: 05/22/2008)
ACTION REQUIRED BY MAGISTRATE JUDGE: Chambers of MAGISTRATE JUDGE WILLIAM C SHERRILL, JR notified that action is needed Re: 31 MOTION to Appoint Counsel. Motions referred to WILLIAM C SHERRILL, JR. (dlt) (Entered: 05/22/2008)
32 ORDER denying without prejudice 31 Motion to Appoint Counsel. Signed by MAGISTRATE JUDGE WILLIAM C SHERRILL, JR on 5/28/08. (pll) (Entered: 05/29/2008)
33 MOTION to Extend Time to File Motion for Summary Judgment by WALTER A MCNEIL, MARTIE TAYLOR, TOMMY YOUNG, N LONG. (TOOTHMAN, SHERRY) (Entered: 09/02/2008)
ACTION REQUIRED BY MAGISTRATE JUDGE: Chambers of MAGISTRATE JUDGE WILLIAM C SHERRILL, JR notified that action is needed Re: 33 MOTION to Extend Time to File Motion for Summary Judgment. Motions referred to WILLIAM C SHERRILL, JR. (pll) (Entered: 09/03/2008)
34 First MOTION for Summary Judgment by WALTER A MCNEIL, MARTIE TAYLOR, TOMMY YOUNG, N LONG. (Internal deadline for referral to judge if response not filed earlier: 9/29/2008). (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Errata H, # 9 Exhibit I, # 10 Exhibit J, # 11 Errata K, # 12 Exhibit L) (TOOTHMAN, SHERRY) (Entered: 09/09/2008)
ACTION REQUIRED BY MAGISTRATE JUDGE: Chambers of MAGISTRATE JUDGE WILLIAM C SHERRILL, JR notified that action is needed Re: 34 Defendant's First MOTION for Summary Judgment. Motions referred to WILLIAM C SHERRILL, JR. (krb) (Entered: 09/10/2008)
35 ORDER finding as MOOT, doc 33 , Motion to Extend Time. (Reply by petitioner due by 10/10/2008.) Signed by MAGISTRATE JUDGE WILLIAM C SHERRILL, JR on 09/10/2008. (krb) (Entered: 09/11/2008)
Set Deadlines per Order 35 . (Reply by petitioner due by 10/10/2008.) (krb) (Entered: 09/11/2008)
36 RESPONSE in Opposition re 34 First MOTION for Summary Judgment filed by FELIX GARCIA. (Attachments: # 1 Appendix) (pll) (Additional attachment(s) added on 6/16/2009: # 2 Main Document, # 3 Exhibit) (pll). (Entered: 10/06/2008)
ACTION REQUIRED BY MAGISTRATE JUDGE: Chambers of MAGISTRATE JUDGE WILLIAM C SHERRILL, JR notified that action is needed Re: 36 Response in Opposition to Motion. (pll) (Entered: 10/06/2008)
37 MOTION for Status by FELIX GARCIA. (amm) (Entered: 05/05/2009)
ACTION REQUIRED BY MAGISTRATE JUDGE: Chambers of MAGISTRATE JUDGE WILLIAM C SHERRILL, JR notified that action is needed Re: Plaintiff's 37 MOTION for Status. *Original pleading forwarded to chambers. Motions referred to WILLIAM C SHERRILL, JR. (amm) (Entered: 05/05/2009)
38 ORDER: 37 MOTION for case status is granted. 34 MOTION for Summary Judgment will be taken under advisement on 6/10/09. Notify Chambers on 6/10/2009. Signed by MAGISTRATE JUDGE WILLIAM C SHERRILL, JR on 5/8/09. (amm) (Entered: 05/08/2009)
39 Supplement to 36 Plaintiff's Response in Opposition to Motion by FELIX GARCIA (Attachments: # 1 Exhibit) (dlt) (Entered: 06/02/2009)
ACTION REQUIRED BY MAGISTRATE JUDGE: Chambers of MAGISTRATE JUDGE WILLIAM C SHERRILL, JR notified that action is needed Re: 39 Plaintiff Supplement to 36 Plaintiff's Response in Opposition to Motion. (dlt)*Pleading placed

06/10/2009 06/22/2009
07/07/2009 07/07/2009 07/07/2009 07/08/2009 07/28/2009 07/29/2009
07/30/2009 07/30/2009 08/11/2009
08/12/2009 08/12/2009 08/12/2009

in WCS box for review* (Entered: 06/03/2009)
ACTION REQUIRED BY MAGISTRATE JUDGE: Chambers of MAGISTRATE JUDGE WILLIAM C SHERRILL, JR notified that action is needed Re: 38 Order − Summary Judgment under Advisement. (pll) (Entered: 06/10/2009)
40 REPORT AND RECOMMENDATION, It is RECOMMENDED that Defendants' motion for summary judgment, doc. 34 , be DENIED in part and GRANTED in part. The motion should be granted as to any claim concerning speech therapy, and claims against Defendants in their individual capacities. Otherwise the motion should be DENIED, and this case remanded for further proceedings. Signed by MAGISTRATE JUDGE WILLIAM C SHERRILL, JR on 6/22/09. Internal deadline for referral to district judge if objections are not filed earlier: 7/20/2009. (pll) (Entered: 06/22/2009)
41 NOTICE of Appearance by MARK JERRY HIERS on behalf of WALTER A MCNEIL, MARTIE TAYLOR, TOMMY YOUNG, LONG N DO (HIERS, MARK) (Entered: 07/07/2009)
42 MOTION to Extend Time to respond to the Report and Recommendation (doc. 40) by WALTER A MCNEIL, MARTIE TAYLOR, TOMMY YOUNG, LONG N DO. (HIERS, MARK) (Entered: 07/07/2009)
ACTION REQUIRED BY DISTRICT JUDGE: Chambers of CHIEF JUDGE STEPHAN P MICKLE notified that action is needed Re: 42 MOTION to Extend Time to respond to the 40 Report and Recommendation. (kdm) (Entered: 07/07/2009)
43 ORDER EXTENDING TIME; GRANTING 42 MOTION to Extend Time to respond to the 40 Report and Recommendation. ( Internal deadline for referral to district judge if objections are not filed earlier: 7/28/2009). Signed by CHIEF JUDGE STEPHAN P MICKLE on 7/08/2009. (kdm) (Entered: 07/08/2009)
44 OBJECTION to 40 Report and Recommendations by WALTER A MCNEIL, MARTIE TAYLOR, TOMMY YOUNG, LONG N DO. (HIERS, MARK) (Entered: 07/28/2009)
ACTION REQUIRED BY DISTRICT JUDGE: Chambers of CHIEF JUDGE STEPHAN P MICKLE notified that action is needed Re: 44 Objection to Report and Recommendations, re 40 REPORT AND RECOMMENDATION re 34 First MOTION for Summary Judgment filed by LONG N DO, TOMMY YOUNG, MARTIE TAYLOR, WALTER A MCNEIL. (kdm) (Entered: 07/29/2009)
45 OBJECTION to 40 Report and Recommendations Amended by WALTER A MCNEIL, MARTIE TAYLOR, TOMMY YOUNG, LONG N DO. (HIERS, MARK) (Entered: 07/30/2009)
ACTION REQUIRED BY DISTRICT JUDGE: Chambers of CHIEF JUDGE STEPHAN P MICKLE notified that action is needed Re: 45 Objection to Report and Recommendations (pll) (Entered: 07/30/2009)
47 ORDER ADOPTING REPORT AND RECOMMENDATION re 34 Motion for Summary Judgment filed by LONG N DO, TOMMY YOUNG, MARTIE TAYLOR, WALTER A MCNEIL. Defendants' Motion is granted as to any claim concerning speech therapy, and claims against Defendants in their individual capacities. The motion is otherwise denied. Signed by CHIEF JUDGE STEPHAN P MICKLE on 8/11/09. (bkp) Modified on 9/14/2009 (bkp). Text edited to remove extraneous language. Modified on 11/5/2009 to clarify order text (tea). (Entered: 08/12/2009)
46 RESPONSE by FELIX GARCIA re 45 Defendants' Objection to Report and Recommendations by FELIX GARCIA. (pll) (Entered: 08/12/2009)
ACTION REQUIRED BY DISTRICT JUDGE: Chambers of CHIEF JUDGE STEPHAN P MICKLE notified that action is needed Re: 46 Response. (pll) (Entered: 08/12/2009)
ACTION REQUIRED BY MAGISTRATE JUDGE: Chambers of MAGISTRATE JUDGE WILLIAM C SHERRILL, JR notified that action is needed Re: 47 Order Adopting Report and Recommendation and remanding case for further proceedings (bkp) (Entered: 08/12/2009)

09/15/2009 10/05/2009 10/05/2009 10/05/2009
10/06/2009 10/07/2009 10/07/2009
10/14/2009 10/14/2009 10/14/2009 10/15/2009 11/06/2009 11/06/2009
11/17/2009 12/08/2009 12/08/2009 12/08/2009 12/10/2009

48 ORDER re 31 MOTION to Appoint Counsel filed by FELIX GARCIA. ( Notify Chambers on 10/16/2009.). Signed by MAGISTRATE JUDGE WILLIAM C SHERRILL, JR on 9/15/09. (pll) (Entered: 09/15/2009)
49 NOTICE of Appearance by RANDALL CHALLEN BERG on behalf of all plaintiffs (BERG, RANDALL) (Entered: 10/05/2009)
50 First MOTION for Discovery To Be Reopened and request to issue a Revised Case Management and Scheduling Order by FELIX GARCIA. (BERG, RANDALL) (Entered: 10/05/2009)
ACTION REQUIRED BY MAGISTRATE JUDGE: Chambers of MAGISTRATE JUDGE WILLIAM C SHERRILL, JR notified that action is needed Re: 50 First MOTION for Discovery To Be Reopened and request to issue a Revised Case Management and Scheduling Order, 49 Notice of Appearance. (pll) (Entered: 10/05/2009)
MOTIONS REFERRED 50 First MOTION for Discovery To Be Reopened and request to issue a Revised Case Management and Scheduling Order. Motions referred to WILLIAM C SHERRILL, JR. (pll) (Entered: 10/06/2009)
51 SUPPLEMENTAL CASE MANAGEMENT AND SCHEDULING ORDER. Signed by MAGISTRATE JUDGE WILLIAM C SHERRILL, JR on 10/7/09. Discovery due by 3/31/2010. (pll) (Entered: 10/07/2009)
52 ORDER granting 50 First MOTION for Discovery To Be Reopened and request to issue a Revised Case Management and Scheduling Order. ( Miscellaneous Deadline for Plaintiff's counsel to file notice with the court − by 10/27/2009.). Signed by MAGISTRATE JUDGE WILLIAM C SHERRILL, JR on 10/7/09. (pll) (Entered: 10/07/2009)
53 NOTICE of Meeting with Client and to Confirm Representation by FELIX GARCIA re 52 Order, Set Deadlines/Hearings,, (BERG, RANDALL) (Entered: 10/14/2009)
54 ATTORNEY TIME RECORDS by FELIX GARCIA. (BERG, RANDALL) (Entered: 10/14/2009)
55 ATTORNEY TIME RECORDS − SEALED PORTION by FELIX GARCIA. (Attachments: # 1 Exhibit hours for Randall Berg, # 2 Exhibit Hours for Shawn Heller) (BERG, RANDALL) (Entered: 10/14/2009)
ACTION REQUIRED BY MAGISTRATE JUDGE: Chambers of MAGISTRATE JUDGE WILLIAM C SHERRILL, JR notified that action is needed Re: 53 Notice (Other). (pll) (Entered: 10/15/2009)
56 ATTORNEY TIME RECORDS by FELIX GARCIA. (BERG, RANDALL) (Entered: 11/06/2009)
57 ATTORNEY TIME RECORDS − SEALED PORTION by FELIX GARCIA. (Attachments: # 1 Exhibit atty time records for RBerg 10/09, # 2 Exhibit Atty records for Joshua Glickman − 10/09, # 3 Exhibit attorney time for Shawn Heller − 10/09, # 4 Exhibit Paralegal time for Patrick Maier − 10−09, # 5 Exhibit legal intern Adrian Bispham − 10/09) (BERG, RANDALL) (Entered: 11/06/2009)
58 NOTICE of Appearance by SHARON CASERTA on behalf of FELIX GARCIA (CASERTA, SHARON) (Entered: 11/17/2009)
59 First MOTION for Leave to File Late Attorney Fee records by FELIX GARCIA. (CASERTA, SHARON) (Entered: 12/08/2009)
60 ATTORNEY TIME RECORDS by FELIX GARCIA. (CASERTA, SHARON) (Entered: 12/08/2009)
61 ATTORNEY TIME RECORDS − SEALED PORTION by FELIX GARCIA. (CASERTA, SHARON) (Entered: 12/08/2009)
62 ORDER granting 59 Motion for Leave to File. Signed by MAGISTRATE JUDGE WILLIAM C SHERRILL, JR on 12/10/09. (pll) (Entered: 12/10/2009)

12/14/2009 12/14/2009 12/14/2009 12/15/2009
01/11/2010 01/11/2010
01/13/2010 01/13/2010 02/10/2010 02/10/2010 02/10/2010 02/10/2010 02/23/2010 02/24/2010 02/24/2010
02/24/2010
02/24/2010 02/25/2010 02/25/2010

63 ATTORNEY TIME RECORDS by FELIX GARCIA. (CASERTA, SHARON) (Entered: 12/14/2009)
64 ATTORNEY TIME RECORDS − SEALED PORTION by FELIX GARCIA. (CASERTA, SHARON) (Entered: 12/14/2009)
65 ATTORNEY TIME RECORDS by FELIX GARCIA. (BERG, RANDALL) (Entered: 12/14/2009)
66 ATTORNEY TIME RECORDS − SEALED PORTION by FELIX GARCIA. (Attachments: # 1 Attorney Time Records − Shawn Heller for 11−09, # 2 Attorney Time Records − Randall Berg for 11−09, # 3 Attorney Time Record − Joshua Glickman 11−09, # 4 Non−Attorney Time Records − L Adrian Bispham for 11−09) (BERG, RANDALL) (Entered: 12/15/2009)
67 ATTORNEY TIME RECORDS by FELIX GARCIA. (BERG, RANDALL) (Entered: 01/11/2010)
68 ATTORNEY TIME RECORDS − SEALED PORTION by FELIX GARCIA. (Attachments: # 1 Attorney Time Records − Shawn Heller for 12−09, # 2 Attorney Time Record − Joshua Glickman 12−09, # 3 Attorney Time Records − Randall Berg for 12−09) (BERG, RANDALL) (Entered: 01/11/2010)
69 ATTORNEY TIME RECORDS by FELIX GARCIA. (CASERTA, SHARON) (Entered: 01/13/2010)
70 ATTORNEY TIME RECORDS − SEALED PORTION by FELIX GARCIA. (CASERTA, SHARON) (Entered: 01/13/2010)
71 ATTORNEY TIME RECORDS by FELIX GARCIA. (BERG, RANDALL) (Entered: 02/10/2010)
72 ATTORNEY TIME RECORDS − SEALED PORTION by FELIX GARCIA. (Attachments: # 1 Joshua A. Glickman, Esq., # 2 Shawn A. Heller, Esq., # 3 Randall C. Berg, Esq., # 4 Kristen Pavon) (BERG, RANDALL) (Entered: 02/10/2010)
73 ATTORNEY TIME RECORDS by FELIX GARCIA. (CASERTA, SHARON) (Entered: 02/10/2010)
74 ATTORNEY TIME RECORDS − SEALED PORTION by FELIX GARCIA. (CASERTA, SHARON) (Entered: 02/10/2010)
75 MOTION for Extension of Time to Complete Discovery by FELIX GARCIA. (BERG, RANDALL) (Entered: 02/23/2010)
76 NOTICE of Appearance by SHAWN ALEX HELLER on behalf of FELIX GARCIA (HELLER, SHAWN) (Entered: 02/24/2010)
ACTION REQUIRED BY MAGISTRATE JUDGE: Chambers of MAGISTRATE JUDGE WILLIAM C SHERRILL, JR notified that action is needed Re: 76 Notice of Appearance, 75 MOTION for Extension of Time to Complete Discovery. Referred to WILLIAM C SHERRILL, JR. (pll) (Entered: 02/24/2010)
77 RESPONSE in Opposition re 75 MOTION for Extension of Time to Complete Discovery , alternatively to stay discovery regarding settlement pursuit filed by LONG N DO, WALTER A MCNEIL, MARTIE TAYLOR, TOMMY YOUNG. (HIERS, MARK) (Entered: 02/24/2010)
78 NOTICE of Appearance by JOSHUA AARON GLICKMAN on behalf of FELIX GARCIA (GLICKMAN, JOSHUA) (Entered: 02/24/2010)
ACTION REQUIRED BY MAGISTRATE JUDGE: Chambers of MAGISTRATE JUDGE WILLIAM C SHERRILL, JR notified that action is needed Re: 78 Notice of Appearance, 77 Response in Opposition to Motion. (pll) (Entered: 02/25/2010)
79 ORDER granting 75 MOTION for Extension of Time to Complete Discovery filed by FELIX GARCIA. ( Discovery due by 4/30/2010.). Signed by MAGISTRATE JUDGE WILLIAM C SHERRILL, JR on 2/25/2010. (pll) (Entered: 02/25/2010)

03/10/2010 03/10/2010 03/11/2010 03/11/2010 03/29/2010 03/29/2010 03/30/2010 04/09/2010 04/12/2010
04/12/2010 04/14/2010 04/14/2010 04/15/2010 04/15/2010 04/21/2010 05/14/2010 05/14/2010 05/14/2010 05/14/2010 05/17/2010

80 ATTORNEY TIME RECORDS by FELIX GARCIA. (BERG, RANDALL) (Entered: 03/10/2010)
81 ATTORNEY TIME RECORDS − SEALED PORTION by FELIX GARCIA. (Attachments: # 1 Shawn A. Heller, Esq., # 2 Randall C. Berg, Jr., Esq., # 3 Joshua A. Glickman, Esq., # 4 Kristen Pavon) (BERG, RANDALL) (Entered: 03/10/2010)
82 ATTORNEY TIME RECORDS by FELIX GARCIA. (CASERTA, SHARON) (Entered: 03/11/2010)
83 ATTORNEY TIME RECORDS − SEALED PORTION by FELIX GARCIA. (CASERTA, SHARON) (Entered: 03/11/2010)
84 NOTICE of Appearance by JONATHAN PATRICK SANFORD on behalf of LONG N DO, WALTER A MCNEIL, MARTIE TAYLOR, TOMMY YOUNG (SANFORD, JONATHAN) (Entered: 03/29/2010)
85 NOTICE of Appearance by SUSAN ADAMS MAHER on behalf of LONG N DO, WALTER A MCNEIL, MARTIE TAYLOR, TOMMY YOUNG (MAHER, SUSAN) (Entered: 03/29/2010)
ACTION REQUIRED BY MAGISTRATE JUDGE: Chambers of MAGISTRATE JUDGE WILLIAM C SHERRILL, JR notified that action is needed Re: 84 Notice of Appearance, 85 Notice of Appearance. (pll) (Entered: 03/30/2010)
86 Joint MOTION for Extension of Time to Complete Discovery by LONG N DO, FELIX GARCIA, JAMES MCDONOUGH, WALTER A MCNEIL, MARTIE TAYLOR, TOMMY YOUNG. (HELLER, SHAWN) (Entered: 04/09/2010)
ACTION REQUIRED BY MAGISTRATE JUDGE: Chambers of MAGISTRATE JUDGE WILLIAM C SHERRILL, JR notified that action is needed Re: 86 Joint MOTION for Extension of Time to Complete Discovery. Referred to WILLIAM C SHERRILL, JR. (pll) (Entered: 04/12/2010)
87 ORDER granting 86 Joint MOTION for Extension of Time to Complete Discovery. ( Discovery due by 6/1/2010.). Signed by MAGISTRATE JUDGE WILLIAM C SHERRILL, JR on 4/12/2010. (pll) (Entered: 04/12/2010)
88 ATTORNEY TIME RECORDS by FELIX GARCIA. (CASERTA, SHARON) (Entered: 04/14/2010)
89 ATTORNEY TIME RECORDS − SEALED PORTION by FELIX GARCIA. (CASERTA, SHARON) (Entered: 04/14/2010)
90 ATTORNEY TIME RECORDS by FELIX GARCIA. (BERG, RANDALL) (Entered: 04/15/2010)
91 ATTORNEY TIME RECORDS − SEALED PORTION by FELIX GARCIA. (Attachments: # 1 Joshua A. Glickman, Esq., # 2 Shawn A. Heller, Esq., # 3 Randall C. Berg, Jr., Esq., # 4 Kristen Pavon) (BERG, RANDALL) (Entered: 04/15/2010)
92 Partial Filing fee: $ 6.00, receipt number 4−9308. Balance $342.00. (pll) (Entered: 04/26/2010)
93 ATTORNEY TIME RECORDS by FELIX GARCIA. (CASERTA, SHARON) (Entered: 05/14/2010)
94 ATTORNEY TIME RECORDS − SEALED PORTION by FELIX GARCIA. (CASERTA, SHARON) (Entered: 05/14/2010)
95 ATTORNEY TIME RECORDS by FELIX GARCIA. (BERG, RANDALL) (Entered: 05/14/2010)
96 ATTORNEY TIME RECORDS − SEALED PORTION by FELIX GARCIA. (Attachments: # 1 Randall C. Berg, Jr. Esq., # 2 Joshua A. Glickman, Esq., # 3 Shawn A. Heller, Esq., # 4 Kristen Pavon) (BERG, RANDALL) (Entered: 05/14/2010)
97 Joint MOTION for Extension of Time to Complete Discovery by FELIX GARCIA. (HELLER, SHAWN) (Entered: 05/17/2010)

05/18/2010 05/18/2010

ACTION REQUIRED BY MAGISTRATE JUDGE: Chambers of MAGISTRATE JUDGE WILLIAM C SHERRILL, JR notified that action is needed Re: 97 Joint MOTION for Extension of Time to Complete Discovery. Referred to WILLIAM C SHERRILL, JR. (pll) (Entered: 05/18/2010)
98 ORDER granting 97 Joint Motion for Extension of Time to Complete Discovery. The discovery deadline is extended to June 30, 2010.

s/ William C. Sherrill, Jr. United States Magistrate Judge (wcs, Tallahassee)

05/18/2010 06/03/2010 06/03/2010 06/04/2010
06/04/2010 06/04/2010

(Entered: 05/18/2010)
Set Deadlines/Hearings: Discovery due by 6/30/2010. (pll) (Entered: 05/19/2010)
99 MOTION to Compel Court Order to Enter on Land to Test the Audio Equipment at Issue on Plaintiff by FELIX GARCIA. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D) (BERG, RANDALL) (Entered: 06/03/2010)
100 MOTION for Sanctions (See doc 99 for PDF) by FELIX GARCIA. (atm) (Entered: 06/04/2010)
ACTION REQUIRED BY MAGISTRATE JUDGE: Chambers of MAGISTRATE JUDGE WILLIAM C SHERRILL, JR notified that action is needed Re: 99 MOTION to Compel Court Order to Enter on Land to Test the Audio Equipment at Issue on Plaintiff. Referred to WILLIAM C SHERRILL, JR. (pll) (Entered: 06/04/2010)
ACTION REQUIRED BY MAGISTRATE JUDGE: Chambers of MAGISTRATE JUDGE WILLIAM C SHERRILL, JR notified that action is needed Re: 100 MOTION for Sanctions. Referred to WILLIAM C SHERRILL, JR. (atm) (Entered: 06/04/2010)
101 ORDER deferring ruling on 99 Plaintiff's Motion to Compel and 100 Motion for Sanctions. Defendant shall file a response on or before Thursday, June 10, 2010.

s/ William C. Sherrill, Jr. United States Magistrate Judge (wcs, Tallahassee)

06/04/2010 06/10/2010 06/10/2010 06/10/2010 06/11/2010
06/11/2010 06/11/2010 06/11/2010

(Entered: 06/04/2010)
Set Deadline, per 101 ORDER. (Internal deadline for referral to judge if Defendant's Response not filed earlier: 6/10/2010). (krb) (Entered: 06/07/2010)
102 Joint Request to Hold Motion to Compel in Abeyance until 6/18/2010 by LONG N DO, FELIX GARCIA, WALTER A MCNEIL, MARTIE TAYLOR, TOMMY YOUNG. (SANFORD, JONATHAN) (Entered: 06/10/2010)
103 ATTORNEY TIME RECORDS by FELIX GARCIA. (BERG, RANDALL) (Entered: 06/10/2010)
104 ATTORNEY TIME RECORDS − SEALED PORTION by FELIX GARCIA. (Attachments: # 1 Shawn A. Heller, Esq., # 2 Randall C. Berg, Jr., Esq., # 3 Joshua A. Glickman, Esq.) (BERG, RANDALL) (Entered: 06/10/2010)
ACTION REQUIRED BY MAGISTRATE JUDGE: Chambers of MAGISTRATE JUDGE WILLIAM C SHERRILL, JR notified that action is needed Re: 102 Request/Demand. Referred to WILLIAM C SHERRILL, JR. (pll) (Entered: 06/11/2010)
105 MOTION for Leave to File Second Amended Complaint and incorporated Memorandum of Law and Certificate of Counsel by FELIX GARCIA. (BERG, RANDALL) (Entered: 06/11/2010)
106 Proposed SECOND AMENDED COMPLAINT and Jury Demand against LONG N DO, JAMES MCDONOUGH, WALTER A MCNEIL, MARTIE TAYLOR, TOMMY YOUNG, filed by FELIX GARCIA. (BERG, RANDALL) (Entered: 06/11/2010)
ACTION REQUIRED BY MAGISTRATE JUDGE: Chambers of MAGISTRATE JUDGE WILLIAM C SHERRILL, JR notified that action is needed Re: 106 Amended Complaint, 105 MOTION for Leave to File Second Amended Complaint and

06/11/2010 06/11/2010 06/14/2010

incorporated Memorandum of Law and Certificate of Counsel. Referred to WILLIAM C SHERRILL, JR. (pll) (Entered: 06/11/2010)
107 ATTORNEY TIME RECORDS by FELIX GARCIA. (CASERTA, SHARON) (Entered: 06/11/2010)
108 ATTORNEY TIME RECORDS − SEALED PORTION by FELIX GARCIA. (CASERTA, SHARON) (Entered: 06/11/2010)
109 ORDER. The joint request to hold the motion to compel in abeyance, doc. 102 , is deemed to be a joint motion for a short stay and is GRANTED. A ruling on the motion to compel will not be entered until after June 18, 2010.

s/ William C. Sherrill, Jr. United States Magistrate Judge (wcs, Tallahassee)

Modified on 6/14/2010 (pll). (Entered: 06/14/2010)
06/14/2010 110 ORDER deferring ruling on 105 Plaintiff's Motion for Amend the Complaint. Defendants shall file a response on or before June 25, 2010.

s/ William C. Sherrill, Jr. United States Magistrate Judge (wcs, Tallahassee)

06/14/2010 06/18/2010 06/21/2010 06/21/2010

(Entered: 06/14/2010)
Set/Reset Deadlines as to 105 MOTION for Leave to File Second Amended Complaint and incorporated Memorandum of Law and Certificate of Counsel. (Internal deadline for referral to judge if response not filed earlier: 6/25/2010). (pll) (Entered: 06/14/2010)
111 RESPONSE to Motion re 99 MOTION to Compel Court Order to Enter on Land to Test the Audio Equipment at Issue on Plaintiff filed by LONG N DO, WALTER A MCNEIL, MARTIE TAYLOR, TOMMY YOUNG. (SANFORD, JONATHAN) (Entered: 06/18/2010)
ACTION REQUIRED BY MAGISTRATE JUDGE: Chambers of MAGISTRATE JUDGE WILLIAM C SHERRILL, JR notified that action is needed Re: 111 Response to Motion. (pll) (Entered: 06/21/2010)
112 ORDER finding as moot 99 Motion to Compel; finding as moot 100 Motion for Sanctions. See 111 .

s/ William C. Sherrill, Jr. United States Magistrate Judge (wcs, Tallahassee)

06/22/2010
06/23/2010 06/24/2010 06/25/2010 06/25/2010

(Entered: 06/21/2010)
113 AMENDED DOCUMENT by FELIX GARCIA. Amendment to 105 MOTION for Leave to File Second Amended Complaint and incorporated Memorandum of Law and Certificate of Counsel and attached Proposed "Revised" Second Amended Complaint 106 (Attachments: # 1 Errata Revised Proposed Second Amended Complaint) (BERG, RANDALL) (Entered: 06/22/2010)
ACTION REQUIRED BY MAGISTRATE JUDGE: Chambers of MAGISTRATE JUDGE WILLIAM C SHERRILL, JR notified that action is needed Re: 113 Amended Document,. (pll) (Entered: 06/23/2010)
114 RESPONSE by LONG N DO, WALTER A MCNEIL, MARTIE TAYLOR, TOMMY YOUNG re 113 Amended Document,. (SANFORD, JONATHAN) (Entered: 06/24/2010)
ACTION REQUIRED BY MAGISTRATE JUDGE: Chambers of MAGISTRATE JUDGE WILLIAM C SHERRILL, JR notified that action is needed, Re: 114 Defendant's Response. (krb) (Entered: 06/25/2010)
115 Joint MOTION for Extension of Time to File Response/Reply as to 106 Amended Complaint, 113 Amended Document, 105 MOTION for Leave to File Second

06/28/2010 06/28/2010
07/01/2010 07/06/2010 07/06/2010 07/06/2010
07/06/2010 07/06/2010 07/07/2010
07/13/2010 07/13/2010 07/14/2010 07/14/2010 07/16/2010

Amended Complaint and incorporated Memorandum of Law and Certificate of Counsel by FELIX GARCIA. (HELLER, SHAWN) (Entered: 06/25/2010)
ACTION REQUIRED BY MAGISTRATE JUDGE: Chambers of MAGISTRATE JUDGE WILLIAM C SHERRILL, JR notified that action is needed, Re: 115 Plaintiff's Joint MOTION for Extension of Time to File Response/Reply, as to 106 Amended Complaint. Referred to WILLIAM C SHERRILL, JR. (krb) (Entered: 06/28/2010)
116 ORDER, DENYING as moot 105 MOTION for Leave to File Second Amended Complaint and incorporated Memorandum of Law and Certificate of Counsel, GRANTING in part 115 Joint MOTION for Extension of Time to File Response/Reply. (Motions due: Plaintiff shall file a motion to amend in compliance with N.D. Fla. Loc. R. 15.1 − by 7/6/2010. Internal deadline for referral to judge if Response by Defendants not filed earlier: 7/21/2010). Signed by MAGISTRATE JUDGE WILLIAM C SHERRILL, JR on 06/28/2010. (krb) (Entered: 06/29/2010)
ACTION REQUIRED BY MAGISTRATE JUDGE: Chambers of MAGISTRATE JUDGE WILLIAM C SHERRILL, JR notified that action is needed Re: 98 Order on Motion for Extension of Time to Complete Discovery. **Discovery deadline terminated. (pll) (Entered: 07/01/2010)
117 Second MOTION for Leave to File Second Amended Complaint by FELIX GARCIA. (HELLER, SHAWN) (Entered: 07/06/2010)
118 Second AMENDED COMPLAINT against LONG N DO, WALTER A MCNEIL, MARTIE TAYLOR, TOMMY YOUNG, FLORIDA DEPARTMENT OF CORRECTIONS, filed by FELIX GARCIA. (HELLER, SHAWN) (Entered: 07/06/2010)
119 NOTICE OF FILING REVISED PLAINTIFF'S SECOND MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT and REVISED SECOND AMENDED COMPLAINT by FELIX GARCIA re 117 Second MOTION for Leave to File Second Amended Complaint, 118 Amended Complaint (HELLER, SHAWN) (Entered: 07/06/2010)
120 Second MOTION for Leave to File REVISED SECOND AMENDED COMPLAINT, REVISED by FELIX GARCIA. (HELLER, SHAWN) (Entered: 07/06/2010)
121 REVISED SECOND AMENDED COMPLAINT against LONG N DO, FLORIDA DEPARTMENT OF CORRECTIONS, WALTER A MCNEIL, MARTIE TAYLOR, TOMMY YOUNG, filed by FELIX GARCIA. (HELLER, SHAWN) (Entered: 07/06/2010)
ACTION REQUIRED BY MAGISTRATE JUDGE: Chambers of MAGISTRATE JUDGE WILLIAM C SHERRILL, JR notified that action is needed, Re: 117 Plaintiff's Second MOTION for Leave to File Second Amended Complaint, 118 Plaintiff's Amended Complaint, 119 Plaintiff's Notice (Other), 120 Plaintiff's Second MOTION for Leave to File REVISED SECOND AMENDED COMPLAINT, REVISED, 121 Plaintiff's Amended Complaint. Referred to WILLIAM C SHERRILL, JR. (krb) (Entered: 07/07/2010)
122 ATTORNEY TIME RECORDS by FELIX GARCIA. (BERG, RANDALL) (Entered: 07/13/2010)
123 ATTORNEY TIME RECORDS − SEALED PORTION by FELIX GARCIA. (Attachments: # 1 Shawn A. Heller, Esq., # 2 Randall C. Berg, Jr., Esq., # 3 Megan Horn) (BERG, RANDALL) (Entered: 07/13/2010)
124 ATTORNEY TIME RECORDS by FELIX GARCIA. (CASERTA, SHARON) (Entered: 07/14/2010)
125 ATTORNEY TIME RECORDS − SEALED PORTION by FELIX GARCIA. (CASERTA, SHARON) (Entered: 07/14/2010)
126 ORDER denying as moot 117 Second MOTION for Leave to File Second Amended Complaint. (Internal deadline for referral to judge if response not filed earlier re: 120 Second MOTION for Leave to File: 7/21/2010). Signed by MAGISTRATE JUDGE WILLIAM C SHERRILL, JR on 7/16/2010. (pll) (Entered: 07/16/2010)

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07/28/2010 07/28/2010 08/04/2010 08/05/2010 08/11/2010 08/11/2010 08/12/2010
08/13/2010 08/13/2010

127 MOTION for Extension of Time to File Dispositive Motions (Unopposed) by FELIX GARCIA. (BERG, RANDALL) (Entered: 07/19/2010)
ACTION REQUIRED BY MAGISTRATE JUDGE: Chambers of MAGISTRATE JUDGE WILLIAM C SHERRILL, JR notified that action is needed Re: 127 MOTION for Extension of Time to File Dispositive Motions (Unopposed). Referred to WILLIAM C SHERRILL, JR. (pll) (Entered: 07/20/2010)
128 RESPONSE in Opposition re 120 Second MOTION for Leave to File REVISED SECOND AMENDED COMPLAINT, REVISED filed by LONG N DO, WALTER A MCNEIL, MARTIE TAYLOR, TOMMY YOUNG. (SANFORD, JONATHAN) (Entered: 07/20/2010)
ACTION REQUIRED BY MAGISTRATE JUDGE: Chambers of MAGISTRATE JUDGE WILLIAM C SHERRILL, JR notified that action is needed Re: 128 Response in Opposition to Motion. (pll) (Entered: 07/21/2010)
129 MOTION for Leave to File re 128 Response in Opposition to Motion for Leave to File Second Amended Complaint (Unopposed) by FELIX GARCIA. (BERG, RANDALL) (Entered: 07/22/2010)
ACTION REQUIRED BY MAGISTRATE JUDGE: Chambers of MAGISTRATE JUDGE WILLIAM C SHERRILL, JR notified that action is needed, Re: 129 Plaintiff's MOTION for Leave to File re 128 Response in Opposition to Motion for Leave to File Second Amended Complaint (Unopposed). Referred to WILLIAM C SHERRILL, JR. (krb) (Entered: 07/23/2010)
130 ORDER granting 127 MOTION for Extension of Time to File Dispositive Motions (Unopposed) filed by FELIX GARCIA. No summary judgment motions should be filed until further court order. Signed by MAGISTRATE JUDGE WILLIAM C SHERRILL, JR on 7/28/2010. (pll) (Entered: 07/28/2010)
131 ORDER granting 129 MOTION for Leave to File re 128 Response in Opposition to Motion. ( Reply by Petitioner due by 8/9/2010. Miscellaneous Deadline for response to reply by Respondents − by 8/19/2010. ). Signed by MAGISTRATE JUDGE WILLIAM C SHERRILL, JR on 7/28/2010. (pll) (Entered: 07/28/2010)
132 REPLY to 128 Response in Opposition to Motion for Leave to File Second Amended Complaint (Unopposed) filed by FELIX GARCIA. (BERG, RANDALL) (Entered: 08/04/2010)
ACTION REQUIRED BY MAGISTRATE JUDGE: Chambers of MAGISTRATE JUDGE WILLIAM C SHERRILL, JR notified that action is needed, Re: 132 Plaintiff's Reply to Response to Motion. (krb) (Entered: 08/05/2010)
133 ATTORNEY TIME RECORDS by FELIX GARCIA. (BERG, RANDALL) (Entered: 08/11/2010)
134 ATTORNEY TIME RECORDS − SEALED PORTION by FELIX GARCIA. (Attachments: # 1 Shawn A. Heller, Esq., # 2 Randall C. Berg, Jr., Esq., # 3 Joshua A. Glickman, Esq., # 4 Megan Horn, # 5 Melodee Rhodes) (BERG, RANDALL) (Entered: 08/11/2010)
135 REPORT AND RECOMMENDATION, it is RECOMMENDED that Plaintiff's motion to amend, doc. 120 be GRANTED in part and DENIED in part. Plaintiff Garcia should be permitted to file an amended complaint with class action allegations, but the additional Plaintiffs should not be permitted to join pursuant to Rule 20 re 120 Second MOTION for Leave to File REVISED SECOND AMENDED COMPLAINT, REVISED filed by FELIX GARCIA. Signed by MAGISTRATE JUDGE WILLIAM C SHERRILL, JR on 8/12/2010. Internal deadline for referral to district judge if objections are not filed earlier: 9/9/2010. (pll) (Entered: 08/13/2010)
136 ATTORNEY TIME RECORDS by FELIX GARCIA. (CASERTA, SHARON) (Entered: 08/13/2010)
137 ATTORNEY TIME RECORDS − SEALED PORTION by FELIX GARCIA. (CASERTA, SHARON) (Entered: 08/13/2010)

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12/09/2010 12/09/2010 12/13/2010 12/13/2010 12/21/2010

138 OBJECTION to 135 Report and Recommendations by FELIX GARCIA. (Attachments: # 1 Exhibit One−Def. Taylor Letter to Plaintiff) (BERG, RANDALL) (Entered: 08/26/2010)
ACTION REQUIRED BY DISTRICT JUDGE: Chambers of CHIEF JUDGE STEPHAN P MICKLE notified that action is needed, Re: 138 Objection to Report and Recommendations. (krb) (Entered: 08/27/2010)
139 RESPONSE by LONG N DO, WALTER A MCNEIL, MARTIE TAYLOR, TOMMY YOUNG re 138 Objection to Report and Recommendations. (Attachments: # 1 Exhibit A) (SANFORD, JONATHAN) (Entered: 09/13/2010)
ACTION REQUIRED BY DISTRICT JUDGE: Chambers of CHIEF JUDGE STEPHAN P MICKLE notified that action is needed Re: 139 Response (pll) (Entered: 09/14/2010)
140 ATTORNEY TIME RECORDS by FELIX GARCIA. (CASERTA, SHARON) (Entered: 09/15/2010)
141 ATTORNEY TIME RECORDS − SEALED PORTION by FELIX GARCIA. (CASERTA, SHARON) (Entered: 09/15/2010)
142 ATTORNEY TIME RECORDS by FELIX GARCIA. (BERG, RANDALL) (Entered: 09/15/2010)
143 ATTORNEY TIME RECORDS − SEALED PORTION by FELIX GARCIA. (Attachments: # 1 Randall C. Berg, Jr., Esq., # 2 Shawn A. Heller, Esq., # 3 Joshua A. Glickman, Esq.) (BERG, RANDALL) (Entered: 09/15/2010)
144 ATTORNEY TIME RECORDS by FELIX GARCIA. (BERG, RANDALL) (Entered: 10/13/2010)
145 ATTORNEY TIME RECORDS − SEALED PORTION by FELIX GARCIA. (Attachments: # 1 Shawn A. Heller, Esq.) (BERG, RANDALL) (Entered: 10/13/2010)
146 ATTORNEY TIME RECORDS by FELIX GARCIA. (BERG, RANDALL) (Entered: 11/09/2010)
147 ATTORNEY TIME RECORDS − SEALED PORTION by FELIX GARCIA. (Attachments: # 1 Shawn A. Heller, Esq.) (BERG, RANDALL) (Entered: 11/09/2010)
148 ATTORNEY TIME RECORDS by FELIX GARCIA. (CASERTA, SHARON) (Entered: 11/12/2010)
149 ATTORNEY TIME RECORDS − SEALED PORTION by FELIX GARCIA. (CASERTA, SHARON) (Entered: 11/12/2010)
150 ORDER ADOPTING 135 REPORT AND RECOMMENDATION: GRANTING IN PART and DENYING IN PART 120 Motion for Leave to File filed by FELIX GARCIA. Plaintiff is permitted to file an amended complaint with class action allegations, but the addition of prisoner plaintiffs is not permitted. Signed by CHIEF JUDGE STEPHAN P MICKLE on 11/22/2010. (jws) (Entered: 11/22/2010)
151 ATTORNEY TIME RECORDS by FELIX GARCIA. (BERG, RANDALL) (Entered: 12/09/2010)
152 ATTORNEY TIME RECORDS − SEALED PORTION by FELIX GARCIA. (Attachments: # 1 Shawn A. Heller, Esq., # 2 Randall C. Berg, Jr., Esq., # 3 Joshua A. Glickman, Esq.) (BERG, RANDALL) (Entered: 12/09/2010)
153 ATTORNEY TIME RECORDS by FELIX GARCIA. (CASERTA, SHARON) (Entered: 12/13/2010)
154 ATTORNEY TIME RECORDS − SEALED PORTION by FELIX GARCIA. (CASERTA, SHARON) (Entered: 12/13/2010)
155 NOTICE OF APPEAL as to 150 Order Adopting Report and Recommendation, by TRACY O BLACKBURN, CHARLES B JOHNSON. ( (BERG, RANDALL) (Entered: 12/21/2010)

12/21/2010 12/21/2010 12/22/2010
12/22/2010 12/23/2010 12/29/2010 12/29/2010 01/03/2011 01/04/2011 01/05/2011
01/06/2011
01/11/2011 01/11/2011 01/11/2011 01/12/2011
01/13/2011 01/13/2011 01/13/2011

156 USCA Appeal Fees received − $455 − receipt number 4−11578, re 155 Notice of Appeal. (krb) (Entered: 12/21/2010)
157 Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re 155 Notice of Appeal as to 150 Order Adopting Report and Recommendation by TRACY O BLACKBURN, CHARLES B JOHNSON. (jws) (Entered: 12/21/2010)
158 Appeal Instructions re: 155 Notice of Appeal : The Transcript Request Form is available on the Internet at http://www.flnd.uscourts.gov/forms/Attorney/ECCA_transcript_form_fillable.pdf **PLEASE NOTE** Separate forms must be filed for each court reporter. Transcript Order Form due by 1/5/2011. (jws) (Entered: 12/22/2010)
Set Deadlines re 155 Notice of Appeal : Clerk to check status of Appeal on 4/15/2011. Certificate of Readiness due by 2/15/2011. (jws) (Entered: 12/22/2010)
159 NOTICE OF PENDENCY OF OTHER OR PRIOR SIMILAR ACTIONS by FELIX GARCIA (BERG, RANDALL) (Entered: 12/23/2010)
160 USCA Case Number 10−15856−GG for 155 NOTICE OF APPEAL as to 150 Order Adopting Report and Recommendation, by TRACY O BLACKBURN, CHARLES B JOHNSON. (jws) (Entered: 12/29/2010)
161 USCA PROCEDURAL LETTER re: 155 NOTICE OF APPEAL as to 150 Order Adopting Report and Recommendation, by TRACY O BLACKBURN, CHARLES B JOHNSON, USCA Appeal # 10−15856−GG. (jws) (Entered: 12/29/2010)
162 MOTION to Intervene by FELIX GARCIA. (jws) (Entered: 01/04/2011)
ACTION REQUIRED BY DISTRICT JUDGE: Chambers of CHIEF JUDGE STEPHAN P MICKLE notified that action is needed Re: 162 MOTION to Intervene filed by FELIX GARCIA. (jws) (Entered: 01/04/2011)
163 ORDER DENYING 162 Motion to Intervene filed by FELIX GARCIA. Plaintiff is directed to consult with his attorneys regarding the issues raised in the Motion and should pursue the inmate grievance process. Signed by CHIEF JUDGE STEPHAN P MICKLE on 1/5/2011. (jws) (Entered: 01/05/2011)
164 Pursuant to F.R.A.P. 11(c), the Clerk of the District Court for the Northern District of Florida certifies that the record is complete for purposes of this appeal re: 155 Notice of Appeal, Appeal No. 10−15856−GG. The entire record on appeal is available electronically. (jws) (Entered: 01/06/2011)
165 ATTORNEY TIME RECORDS by FELIX GARCIA. (BERG, RANDALL) (Entered: 01/11/2011)
166 ATTORNEY TIME RECORDS − SEALED PORTION by FELIX GARCIA. (Attachments: # 1 Shawn A. Heller, Esq., # 2 Randall C. Berg, Jr., Esq.) (BERG, RANDALL) (Entered: 01/11/2011)
167 MOTION to Consolidate Cases 4:07−CV−474−SPM/WCS, 4:10−CV−569−SPM/WCS and 4:10−CV−570−SPM/WCS by FELIX GARCIA. (BERG, RANDALL) (Entered: 01/11/2011)
ACTION REQUIRED BY DISTRICT JUDGE: Chambers of CHIEF JUDGE STEPHAN P MICKLE notified that action is needed Re: 167 MOTION to Consolidate Cases 4:07−CV−474−SPM/WCS, 4:10−CV−569−SPM/WCS and 4:10−CV−570−SPM/WCS. (jws) (Entered: 01/12/2011)
168 ATTORNEY TIME RECORDS by FELIX GARCIA. (CASERTA, SHARON) (Entered: 01/13/2011)
169 ATTORNEY TIME RECORDS − SEALED PORTION by FELIX GARCIA. (CASERTA, SHARON) (Entered: 01/13/2011)
NO ACTION REQUIRED BY DISTRICT JUDGE: Chambers of CHIEF JUDGE STEPHAN P MICKLE notified that action is NOT needed Re: 167 MOTION to Consolidate Cases 4:07−CV−474−SPM/WCS, 4:10−CV−569−SPM/WCS and 4:10−CV−570−SPM/WCS. (jws) (Entered: 01/13/2011)

01/13/2011 01/24/2011 01/24/2011 01/25/2011
01/26/2011 01/28/2011 01/31/2011 02/01/2011

ACTION REQUIRED BY MAGISTRATE JUDGE: Chambers of MAGISTRATE JUDGE WILLIAM C SHERRILL, JR notified that action is needed Re: 167 MOTION to Consolidate Cases 4:07−CV−474−SPM/WCS, 4:10−CV−569−SPM/WCS and 4:10−CV−570−SPM/WCS. Referred to WILLIAM C SHERRILL, JR. (jws) (Entered: 01/13/2011)
170 Emergency MOTION TO ENJOIN DEFENDANTS FROM RETALIATING AGAINST MR. GARCIA and for an EVIDENTIARY HEARING by FELIX GARCIA. (HELLER, SHAWN) (Entered: 01/24/2011)
171 Emergency MOTION for Writ of Habeas Corpus ad testificandum by FELIX GARCIA. (Attachments: # 1 Text of Proposed Order Text of Proposed WRIT OF HABEAS CORPUS AD TESTIFICANDUM) (HELLER, SHAWN) (Entered: 01/24/2011)
ACTION REQUIRED BY MAGISTRATE JUDGE: Chambers of MAGISTRATE JUDGE WILLIAM C SHERRILL, JR notified that action is needed Re: 170 Emergency MOTION TO ENJOIN DEFENDANTS FROM RETALIATING AGAINST MR. GARCIA and for an EVIDENTIARY HEARING, 171 Emergency MOTION for Writ of Habeas Corpus ad testificandum. Referred to WILLIAM C SHERRILL, JR. (pll) (Entered: 01/25/2011)
172 Writ of Habeas Corpus ad Testificandum Issued as to FELIX GARCIA for 2/9/11 at 9:00. (pll) (Entered: 01/27/2011)
174 MOTION for Extension of Time to File Response/Reply as to 167 MOTION to Consolidate Cases 4:07−CV−474−SPM/WCS, 4:10−CV−569−SPM/WCS and 4:10−CV−570−SPM/WCS , Unopposed, by LONG N DO, WALTER A MCNEIL, MARTIE TAYLOR, TOMMY YOUNG. (SANFORD, JONATHAN) (Entered: 01/28/2011)
ACTION REQUIRED BY MAGISTRATE JUDGE: Chambers of MAGISTRATE JUDGE WILLIAM C SHERRILL, JR notified that action is needed Re: 174 MOTION for Extension of Time to File Response/Reply. Referred to WILLIAM C SHERRILL, JR. (pll) (Entered: 01/31/2011)
175 ORDER granting 174 Motion for Extension of Time to File Response/Reply re 167 MOTION to Consolidate Cases 4:07−CV−474−SPM/WCS, 4:10−CV−569−SPM/WCS and 4:10−CV−570−SPM/WCS ( (Internal deadline for referral to judge if response not filed earlier: 2/7/2011).

02/01/2011
02/01/2011 02/03/2011 02/04/2011

s/ William C. Sherrill, Jr. United States Magistrate Judge (wcs, Tallahassee) (Entered: 02/01/2011)
176 ORDER deferring ruling on 170 Emergency MOTION TO ENJOIN DEFENDANTS FROM RETALIATING AGAINST MR. GARCIA and GRANTING the moition for EVIDENTIARY HEARING. GRANTING 171 Emergency MOTION for Writ of Habeas Corpus ad testificandum. (Internal deadline for referral to judge if response to 170 motion not filed earlier: 2/7/2011)., Notify Chambers no later than 2/7/2011., Evidentiary Hearing set for 2/9/2011 09:00 AM in U.S. Courthouse Tallahassee before MAGISTRATE JUDGE WILLIAM C SHERRILL JR.). Signed by MAGISTRATE JUDGE WILLIAM C SHERRILL, JR on 2/1/11. (pll) (Entered: 02/01/2011)
Set/Reset Deadlines as to 170 Emergency MOTION TO ENJOIN DEFENDANTS FROM RETALIATING AGAINST MR. GARCIA and for an EVIDENTIARY HEARING. (Internal deadline for referral to judge if response not filed earlier: 2/7/2011). (pll) (Entered: 02/01/2011)
177 Emergency MOTION FOR AN INJUNCTION ORDERING DEFENDANTS TO TRANSFER MR. GARCIA, FILED IN ADVANCE OF FEBRUARY 4, 2011, HEARING by FELIX GARCIA. (HELLER, SHAWN) (Entered: 02/03/2011)
ACTION REQUIRED BY MAGISTRATE JUDGE: Chambers of MAGISTRATE JUDGE WILLIAM C SHERRILL, JR notified that action is needed Re: 177 Emergency MOTION FOR AN INJUNCTION ORDERING DEFENDANTS TO TRANSFER MR. GARCIA, FILED IN ADVANCE OF FEBRUARY 4, 2011, HEARING. Referred to WILLIAM C SHERRILL, JR. (pll) (Entered: 02/04/2011)

02/04/2011 02/07/2011
02/07/2011 02/07/2011
02/07/2011 02/07/2011 02/08/2011 02/08/2011
02/11/2011
02/11/2011

178 Minute Entry for proceedings held before MAGISTRATE JUDGE WILLIAM C SHERRILL, JR: Motion Hearing held on 2/4/2011 re 177 Emergency MOTION FOR AN INJUNCTION ORDERING DEFENDANTS TO TRANSFER MR. GARCIA, FILED IN ADVANCE OF FEBRUARY 4, 2011, HEARING filed by FELIX GARCIA. (Court Reporter Lisa Jones.) (amm) (amm). (Entered: 02/07/2011)
179 ORDER. ( Notify Chambers no later than 2/8/2011., Evidentiary Hearing set for 3/10/2011 09:00 AM in U.S. Courthouse Tallahassee before MAGISTRATE JUDGE WILLIAM C SHERRILL JR.). Doc 170 Emergency MOTION TO ENJOIN DEFENDANTS FROM RETALIATING AGAINST MR. GARCIA and for an EVIDENTIARY HEARING by FELIX GARCIA remains DEFERRED. Signed by MAGISTRATE JUDGE WILLIAM C SHERRILL, JR on 2/7/11. (pll) Modified on 3/9/2011(kjc). (Entered: 02/07/2011)
180 Writ of Habeas Corpus ad Testificandum Issued as to FELIX GARCIA for 3/10/11. (pll) (Entered: 02/07/2011)
181 Emergency MOTION To Depose Plaintiff and to Reschedule Defendants' Response to Plaintiff's Emergency Motion to Enjoin Defendants From Retaliating Against Mr. Garcia and For An Evidentiary Hearing re 170 Emergency MOTION TO ENJOIN DEFENDANTS FROM RETALIATING AGAINST MR. GARCIA and for an EVIDENTIARY HEARING, 176 Order, Set Deadlines/Hearings,,,, by LONG N DO, WALTER A MCNEIL, MARTIE TAYLOR, TOMMY YOUNG. (MAHER, SUSAN) (Entered: 02/07/2011)
182 RESPONSE in Opposition re 167 MOTION to Consolidate Cases 4:07−CV−474−SPM/WCS, 4:10−CV−569−SPM/WCS and 4:10−CV−570−SPM/WCS filed by LONG N DO, WALTER A MCNEIL, MARTIE TAYLOR, TOMMY YOUNG. (SANFORD, JONATHAN) (Entered: 02/07/2011)
183 RESPONSE in Opposition re 177 Emergency MOTION FOR AN INJUNCTION ORDERING DEFENDANTS TO TRANSFER MR. GARCIA, FILED IN ADVANCE OF FEBRUARY 4, 2011, HEARING filed by LONG N DO, WALTER A MCNEIL, MARTIE TAYLOR, TOMMY YOUNG. (MAHER, SUSAN) (Entered: 02/07/2011)
184 MANDATE of USCA as to 155 Notice of Appeal, USCA Appeal#10−15856−GG filed by CHARLES B JOHNSON, TRACY O BLACKBURN: Appeal is DISMISSED, sua sponte, for lack of jurisdiction. (30 Day Exhibit Return Deadline After Appeal Mandate set for 3/10/2011.) (jws) (Entered: 02/08/2011)
ACTION REQUIRED BY MAGISTRATE JUDGE: Chambers of MAGISTRATE JUDGE WILLIAM C SHERRILL, JR notified that action is needed Re: 182 Response in Opposition to Motion, 181 Emergency MOTION To Depose Plaintiff and to Reschedule Defendants' Response to Plaintiff's Emergency Motion to Enjoin Defendants From Retaliating Against Mr. Garcia and For An Evidentiary Hearing re 170 Emergency MOTION TO ENJOIN DEFENDANTS, 183 Response in Opposition to Motion. Referred to WILLIAM C SHERRILL, JR. (pll) (Entered: 02/08/2011)
185 **VACATED PER ORDER 189 ** REPORT AND RECOMMENDATION − Accordingly, it is RECOMMENDED that Plaintiff's emergency motion for a transfer within the Reception and Medical Center, doc. 177 , be DENIED, and this case be REMANDED for further proceedings. Signed by MAGISTRATE JUDGE WILLIAM C SHERRILL, JR on 2/11/11. (Internal deadline for referral to district judge if objections are not filed earlier: 3/11/2011.) (krb) Modified on 2/15/2011 (pll). (Entered: 02/11/2011)
186 NOTICE WITHDRAWAL OF EMERGENCY MOTIONS (JOINT) by FELIX GARCIA re 181 Emergency MOTION To Depose Plaintiff and to Reschedule Defendants' Response to Plaintiff's Emergency Motion to Enjoin Defendants From Retaliating Against Mr. Garcia and For An Evidentiary Hearing re 170 Emergency MOTION TO ENJOIN DEFENDANTSEmergency MOTION To Depose Plaintiff and to Reschedule Defendants' Response to Plaintiff's Emergency Motion to Enjoin Defendants From Retaliating Against Mr. Garcia and For An Evidentiary Hearing re 170 Emergency MOTION TO ENJOIN DEFENDANTS, 170 Emergency MOTION TO ENJOIN DEFENDANTS FROM RETALIATING AGAINST MR. GARCIA and for an EVIDENTIARY HEARING, 177 Emergency MOTION FOR AN INJUNCTION ORDERING DEFENDANTS TO TRANSFER MR. GARCIA, FILED IN ADVANCE

02/11/2011 02/14/2011 02/14/2011
02/14/2011

OF FEBRUARY 4, 2011, HEARING (HELLER, SHAWN) (Entered: 02/11/2011)
187 ORDER, GRANTING 181 Emergency MOTION To Depose Plaintiff. (Internal deadline for referral to judge if Defendant's Response to the emergency motion, doc. 170 , − not filed earlier: 3/4/2011). Signed by MAGISTRATE JUDGE WILLIAM C SHERRILL, JR on 02/11/2011. (krb) (Entered: 02/11/2011)
188 MOTION for Leave to File re 182 Response in Opposition to Motion by FELIX GARCIA. (HELLER, SHAWN) (Entered: 02/14/2011)
ACTION REQUIRED BY MAGISTRATE JUDGE: Chambers of MAGISTRATE JUDGE WILLIAM C SHERRILL, JR notified that action is needed Re: 186 Notice (Other), 188 MOTION for Leave to File re 182 Response in Opposition to Motion. Referred to WILLIAM C SHERRILL, JR. (pll) Modified on 2/22/2011 (pll). (Entered: 02/14/2011)
189 ORDER terminating 170 Plaintiff's Emergency Motion ; terminating 177 Plaintiff's Emergency Motion ; vacating 185 Report and Recommendation, in light of the withdrawal of the motions 186 .

The hearing scheduled for March 10, 2011, 179 is cancelled, and the writ of habeas corpus ad testificandum 180 is vacated.

It is further ordered that the motion for leave to file a reply 188 regarding the motion for consolidation is granted, and the reply may be filed on or before February 28, 2011.

s/ William C. Sherrill, Jr. United States Magistrate Judge (wcs, Tallahassee)

02/14/2011 02/15/2011 02/15/2011 02/15/2011 02/15/2011
02/22/2011 02/22/2011 02/22/2011
02/23/2011
02/23/2011

(Entered: 02/14/2011)
Set Deadlines/Hearings: Reply to 188 due by 2/28/2011. (pll) (Entered: 02/15/2011)
190 ATTORNEY TIME RECORDS by FELIX GARCIA. (CASERTA, SHARON) (Entered: 02/15/2011)
191 ATTORNEY TIME RECORDS − SEALED PORTION by FELIX GARCIA. (CASERTA, SHARON) (Entered: 02/15/2011)
192 ATTORNEY TIME RECORDS by FELIX GARCIA. (BERG, RANDALL) (Entered: 02/15/2011)
193 ATTORNEY TIME RECORDS − SEALED PORTION by FELIX GARCIA. (Attachments: # 1 Shawn A. Heller, Esq., # 2 Randall C. Berg, Jr., Esq., # 3 Joshua A. Glickman, Esq., # 4 Dante P. Trevisani, Esq., # 5 Cassandra Ward) (BERG, RANDALL) (Entered: 02/15/2011)
194 Second AMENDED COMPLAINT − Class Action against LONG N DO, MARTIE TAYLOR, TOMMY YOUNG, EDWIN BUSS, filed by FELIX GARCIA. (HELLER, SHAWN) (Entered: 02/22/2011)
195 MOTION to Certify Class by FELIX GARCIA. (Internal deadline for referral to judge if response not filed earlier: 3/14/2011). (Attachments: # 1 Exhibit A) (HELLER, SHAWN) (Entered: 02/22/2011)
196 REPLY to Response to Motion re 167 MOTION to Consolidate Cases 4:07−CV−474−SPM/WCS, 4:10−CV−569−SPM/WCS and 4:10−CV−570−SPM/WCS filed by FELIX GARCIA. (HELLER, SHAWN) (Entered: 02/22/2011)
ACTION REQUIRED BY MAGISTRATE JUDGE: Chambers of MAGISTRATE JUDGE WILLIAM C SHERRILL, JR notified that action is needed Re: 194 Amended Complaint, 195 MOTION to Certify Class, 196 Reply to Response to Motion. Referred to WILLIAM C SHERRILL, JR. (pll) (Entered: 02/23/2011)
197 REPORT AND RECOMMENDATION, it is respectfully RECOMMENDED that Plaintiff's motion to consolidate, doc. 167 , be DENIED and this case be REMANDED

02/23/2011
02/23/2011 02/23/2011 02/23/2011 02/24/2011
03/08/2011 03/09/2011 03/09/2011

for further proceedings. Signed by MAGISTRATE JUDGE WILLIAM C SHERRILL, JR on 2/23/11. Internal deadline for referral to district judge if objections are not filed earlier: 3/23/2011. (pll) (Entered: 02/23/2011)
198 MOTION for Preliminary Injunction and incorporated Memorandum of Law by FELIX GARCIA. (Attachments: # 1 Exhibit A − Deposition of Martie Taylor, # 2 Exhibit B − Deposition of James Upchurch, # 3 Exhibit C − Unsworn Declaration of Felix Garcia, # 4 Exhibit D − Deposition of Long Do) (GLICKMAN, JOSHUA) (Entered: 02/23/2011)
199 MOTION for Hearing re 198 MOTION for Preliminary Injunction and incorporated Memorandum of Law by FELIX GARCIA. (GLICKMAN, JOSHUA) (Entered: 02/23/2011)
200 Emergency MOTION for Writ of Habeas Corpus ad testificandum by FELIX GARCIA. (Attachments: # 1 Text of Proposed Writ of Habeas Corpus Ad Testificandum) (GLICKMAN, JOSHUA) (Entered: 02/23/2011)
Set/Reset Deadlines as to 198 MOTION for Preliminary Injunction, 199 MOTION for Hearing re 198 MOTION for Preliminary Injunction, 200 Emergency MOTION for Writ of Habeas Corpus ad testificandum. (Internal deadline for referral to judge if response not filed earlier: 3/14/2011). (pll) (Entered: 02/24/2011)
ACTION REQUIRED BY MAGISTRATE JUDGE: Chambers of MAGISTRATE JUDGE WILLIAM C SHERRILL, JR notified that action is needed Re: 200 Emergency MOTION for Writ of Habeas Corpus ad testificandum, 199 MOTION for Hearing re 198 MOTION for Preliminary Injunction, 198 MOTION for Preliminary Injunction. Referred to WILLIAM C SHERRILL, JR. (pll) (Entered: 02/24/2011)
201 MOTION to Extend Time , Unopposed by EDWIN BUSS, LONG N DO, MARTIE TAYLOR, TOMMY YOUNG. (SANFORD, JONATHAN) (Entered: 03/08/2011)
ACTION REQUIRED BY MAGISTRATE JUDGE: Chambers of MAGISTRATE JUDGE WILLIAM C SHERRILL, JR notified that action is needed, Re: 201 Defendant's MOTION to Extend Time , Unopposed. Referred to WILLIAM C SHERRILL, JR. (krb) (Entered: 03/09/2011)
202 ORDER granting 201 Defendants' Unopposed Motion to Extend Time to respond to Plaintiff's second amended complaint, motion for class certification, and motion for preliminary injunction.

The time is extended to March 25, 2011.

s/ William C. Sherrill, Jr. United States Magistrate Judge (wcs, Tallahassee)

03/09/2011
03/15/2011 03/15/2011 03/15/2011 03/15/2011

(Entered: 03/09/2011)
Set Deadlines/Hearings: EDWIN BUSS answer due 3/25/2011; LONG N DO answer due 3/25/2011; MARTIE TAYLOR answer due 3/25/2011; TOMMY YOUNG answer due 3/25/2011. Answer due by 3/25/2011. (Internal deadline for referral to judge if response to [195[ and 198 motions not filed earlier: 3/25/2011). (pll) (Entered: 03/10/2011)
203 ATTORNEY TIME RECORDS by FELIX GARCIA. (CASERTA, SHARON) (Entered: 03/15/2011)
204 ATTORNEY TIME RECORDS − SEALED PORTION by FELIX GARCIA. (CASERTA, SHARON) (Entered: 03/15/2011)
205 ATTORNEY TIME RECORDS by FELIX GARCIA. (BERG, RANDALL) (Entered: 03/15/2011)
206 ATTORNEY TIME RECORDS − SEALED PORTION by FELIX GARCIA. (Attachments: # 1 Exhibit Berg time records for 2/11, # 2 Exhibit Heller time records for 2/11, # 3 Exhibit Trevisani time records for 2/11, # 4 Exhibit Glickman time records for 2/11, # 5 Exhibit Ward time records for 2/11, # 6 Exhibit McCollum time records for 2/11) (BERG, RANDALL) (Entered: 03/15/2011)

03/23/2011 03/24/2011 03/24/2011 03/25/2011 03/28/2011 03/28/2011
03/28/2011 04/01/2011 04/01/2011 04/04/2011 04/06/2011 04/07/2011 04/07/2011 04/08/2011 04/11/2011
04/12/2011

207 REVISED SECOND AMENDED COMPLAINT CLASS ACTION against EDWIN BUSS, filed by FELIX GARCIA. (HELLER, SHAWN) (Entered: 03/23/2011)
ACTION REQUIRED BY MAGISTRATE JUDGE: Chambers of MAGISTRATE JUDGE WILLIAM C SHERRILL, JR notified that action is needed Re: 207 Revised Second Amended Complaint by FELIX GARCIA. (jws) (Entered: 03/24/2011)
ACTION REQUIRED BY DISTRICT JUDGE: Chambers of CHIEF JUDGE STEPHAN P MICKLE notified that action is needed Re: 197 REPORT AND RECOMMENDATION − Objections due by 3/23/2011. None filed as of this date. (jws) (Entered: 03/24/2011)
208 Second MOTION to Extend Time , Unopposed by EDWIN BUSS, LONG N DO, MARTIE TAYLOR, TOMMY YOUNG. (SANFORD, JONATHAN) (Entered: 03/25/2011)
209 ORDER ON REPORT AND RECOMMENDATION: Adopting 197 Report and Recommendations − Plaintiff's 167 MOTION to Consolidate Cases is DENIED. This case is REMANDED to the Magistrate Judge for further proceedings. Signed by CHIEF JUDGE STEPHAN P MICKLE on 3/25/2011. (jws) (Entered: 03/28/2011)
ACTION REQUIRED BY MAGISTRATE JUDGE: Chambers of MAGISTRATE JUDGE WILLIAM C SHERRILL, JR notified that action is needed Re: 209 Order On Report and Recommendation − Adopting 209 Report and Recommendation − 167 MOTION to Consolidate Cases is DENIED. This case is REMANDED to the Magistrate Judge for further proceedings. (jws) (Entered: 03/28/2011)
ACTION REQUIRED BY MAGISTRATE JUDGE: Chambers of MAGISTRATE JUDGE WILLIAM C SHERRILL, JR notified that action is needed Re: 208 Second MOTION to Extend Time , Unopposed. Referred to WILLIAM C SHERRILL, JR. (pll) (Entered: 03/28/2011)
210 ANSWER to 207 Amended Complaint by EDWIN BUSS. (Attachments: # 1 Exhibit A) (SANFORD, JONATHAN) (Entered: 04/01/2011)
211 Third MOTION to Extend Time , Unopposed by EDWIN BUSS. (SANFORD, JONATHAN) (Entered: 04/01/2011)
ACTION REQUIRED BY MAGISTRATE JUDGE: Chambers of MAGISTRATE JUDGE WILLIAM C SHERRILL, JR notified that action is needed Re: 211 Third MOTION to Extend Time , Unopposed, 210 Answer to Amended Complaint. Referred to WILLIAM C SHERRILL, JR. (pll) (Entered: 04/04/2011)
212 RESPONSE in Opposition re 198 MOTION for Preliminary Injunction and incorporated Memorandum of Law filed by EDWIN BUSS. (Attachments: # 1 Exhibit A) (SANFORD, JONATHAN) (Entered: 04/06/2011)
213 RESPONSE in Opposition re 195 MOTION to Certify Class filed by EDWIN BUSS. (MAHER, SUSAN) (Entered: 04/07/2011)
ACTION REQUIRED BY MAGISTRATE JUDGE: Chambers of MAGISTRATE JUDGE WILLIAM C SHERRILL, JR notified that action is needed Re: 212 Response in Opposition to Motion, 213 Response in Opposition to Motion. (pll) (Entered: 04/07/2011)
214 Amended MOTION for Extension of Time to File Response/Reply as to 211 Third MOTION to Extend Time , Unopposed by EDWIN BUSS. (MAHER, SUSAN) (Entered: 04/08/2011)
ACTION REQUIRED BY MAGISTRATE JUDGE: Chambers of MAGISTRATE JUDGE WILLIAM C SHERRILL, JR notified that action is needed Re: 214 Amended MOTION for Extension of Time to File Response/Reply as to 211 Third MOTION to Extend Time , Unopposed. Referred to WILLIAM C SHERRILL, JR. (pll) (Entered: 04/11/2011)
215 MOTION for Leave to File Replies to Responses to Plaintiff's Motions for a Preliminary Injunction (DE 212 ) and for Class Certification (DE 213 ), filed Unopposed by FELIX GARCIA. (BERG, RANDALL) Modified on 4/13/2011 (pll). (Entered: 04/12/2011)

04/13/2011
04/13/2011 04/13/2011 04/14/2011
04/15/2011 04/15/2011 05/03/2011 05/03/2011 05/04/2011 05/06/2011 05/06/2011 05/09/2011 05/10/2011
05/13/2011 05/13/2011 05/13/2011 05/13/2011

ACTION REQUIRED BY MAGISTRATE JUDGE: Chambers of MAGISTRATE JUDGE WILLIAM C SHERRILL, JR notified that action is needed Re: 215 MOTION for Leave to File. Referred to WILLIAM C SHERRILL, JR. (pll) (Entered: 04/13/2011)
216 ATTORNEY TIME RECORDS by FELIX GARCIA. (BERG, RANDALL) (Entered: 04/13/2011)
217 ATTORNEY TIME RECORDS − SEALED PORTION by FELIX GARCIA. (Attachments: # 1 Joshua A. Glickman, Esq.) (BERG, RANDALL) (Entered: 04/13/2011)
218 ORDER, Defendant's second and third motions for extensions of time, docs. 208 and 211 , and amended motion for extension of time, doc. 214 , are GRANTED. Plaintiff's motion for leave to file replies, doc. 215 , is GRANTED. Plaintiff's motion for a hearing concerning the motion for preliminary injunction, doc. 199 , and petition for writ of habeas corpus ad testificandum, doc. 200 , are DENIED at this time. ( Replies due by 5/3/2011.). Signed by MAGISTRATE JUDGE WILLIAM C SHERRILL, JR on 4/14/11. (pll) (Entered: 04/14/2011)
219 ATTORNEY TIME RECORDS by FELIX GARCIA. (CASERTA, SHARON) (Entered: 04/15/2011)
220 ATTORNEY TIME RECORDS − SEALED PORTION by FELIX GARCIA. (CASERTA, SHARON) (Entered: 04/15/2011)
221 REPLY to Response to Motion re 195 MOTION to Certify Class and Defendant's Response to Plaintiff's Motion for Class Certification (DE 213) filed by FELIX GARCIA. (BERG, RANDALL) (Entered: 05/03/2011)
222 REPLY to Response to Motion re 198 MOTION for Preliminary Injunction and incorporated Memorandum of Law filed by FELIX GARCIA. (GLICKMAN, JOSHUA) (Entered: 05/03/2011)
ACTION REQUIRED BY MAGISTRATE JUDGE: Chambers of MAGISTRATE JUDGE WILLIAM C SHERRILL, JR notified that action is needed Re: 222 Reply to Response to Motion, 221 Reply to Response to Motion. (pll) (Entered: 05/04/2011)
223 NOTICE of Filing Declaration of Martie Taylor by EDWIN BUSS re 213 Response in Opposition to Motion (Attachments: # 1 Exhibit A − Declaration of Martie Taylor) (MAHER, SUSAN) (Entered: 05/06/2011)
224 MOTION re 223 Notice (Other) to Accept Declaration of Martie Taylor As Timely Filed by EDWIN BUSS. (MAHER, SUSAN) (Entered: 05/06/2011)
225 RESPONSE in Opposition re 224 MOTION re 223 Notice (Other) to Accept Declaration of Martie Taylor As Timely Filed filed by FELIX GARCIA. (BERG, RANDALL) (Entered: 05/09/2011)
ACTION REQUIRED BY MAGISTRATE JUDGE: Chambers of MAGISTRATE JUDGE WILLIAM C SHERRILL, JR notified that action is needed Re: 225 Response in Opposition to Motion, 223 Notice (Other), 224 MOTION re 223 Notice (Other) to Accept Declaration of Martie Taylor As Timely Filed. Referred to WILLIAM C SHERRILL, JR. (pll) (Entered: 05/10/2011)
226 ATTORNEY TIME RECORDS by FELIX GARCIA. (CASERTA, SHARON) (Entered: 05/13/2011)
227 ATTORNEY TIME RECORDS − SEALED PORTION by FELIX GARCIA. (CASERTA, SHARON) (Entered: 05/13/2011)
228 ATTORNEY TIME RECORDS by FELIX GARCIA. (BERG, RANDALL) (Entered: 05/13/2011)
229 ATTORNEY TIME RECORDS − SEALED PORTION by FELIX GARCIA. (Attachments: # 1 Exhibit Shawn Heller Time Records, # 2 Exhibit Dante Trevisani Time Records, # 3 Exhibit Josh Glickman Time Records, # 4 Exhibit Randy Berg Time Records) (BERG, RANDALL) (Entered: 05/13/2011)

06/06/2011
06/09/2011 06/09/2011 06/09/2011 06/09/2011
06/10/2011 06/15/2011 06/15/2011 06/17/2011 06/21/2011 06/23/2011 07/02/2011
07/05/2011 07/15/2011
07/15/2011 07/15/2011 07/15/2011 07/20/2011

230 ORDER, GRANTING 224 MOTION to accept Taylor declaration as timely filed. (Plaintiff shall file an amended Reply to Defendant's response to the motion for class certification, doc. 213 , − by 6/24/2011.) Signed by MAGISTRATE JUDGE WILLIAM C SHERRILL, JR on 06/06/2011. (krb) (Entered: 06/07/2011)
231 REPLY to Response to Motion re 195 MOTION to Certify Class filed by FELIX GARCIA. (BERG, RANDALL) (Entered: 06/09/2011)
232 ATTORNEY TIME RECORDS by FELIX GARCIA. (BERG, RANDALL) (Entered: 06/09/2011)
233 ATTORNEY TIME RECORDS − SEALED PORTION by FELIX GARCIA. (BERG, RANDALL) (Entered: 06/09/2011)
234 ATTORNEY TIME RECORDS − SEALED PORTION by FELIX GARCIA. (Attachments: # 1 Exhibit Glickman Time Records − May 2011, # 2 Exhibit Berg Time Records − May 2011, # 3 Exhibit Trevisani Time Records − May 2011, # 4 Exhibit Heller Time Records − May 2011) (BERG, RANDALL) (Entered: 06/09/2011)
ACTION REQUIRED BY MAGISTRATE JUDGE: Chambers of MAGISTRATE JUDGE WILLIAM C SHERRILL, JR notified that action is needed, Re: 231 Plaintiff's Reply to Response to Motion. (krb) (Entered: 06/10/2011)
235 ATTORNEY TIME RECORDS by FELIX GARCIA. (CASERTA, SHARON) (Entered: 06/15/2011)
236 ATTORNEY TIME RECORDS − SEALED PORTION by FELIX GARCIA. (CASERTA, SHARON) (Entered: 06/15/2011)
237 NOTICE OF INFORMATION by FELIX GARCIA (pll) (Entered: 06/21/2011)
ACTION REQUIRED BY MAGISTRATE JUDGE: Chambers of MAGISTRATE JUDGE WILLIAM C SHERRILL, JR notified that action is needed Re: 237 Notice (Other). **Original referred to chambers. (pll) (Entered: 06/21/2011)
238 ORDER. (Internal deadline for referral to judge if response to order not filed earlier: 7/11/2011). Signed by MAGISTRATE JUDGE WILLIAM C SHERRILL, JR on 6/23/11. (pll) (Entered: 06/23/2011)
239 AFFIDAVIT re 238 Order, Set Deadlines/Hearings Plaintiff's Unsworn Declaration in Response to Order of June 23, 2011 by FELIX GARCIA. (Attachments: # 1 Exhibit Destruction of Property Form, # 2 Exhibit Memo Regarding Purpose of TV radio transmitters at Polk CI) (BERG, RANDALL) (Entered: 07/02/2011)
ACTION REQUIRED BY MAGISTRATE JUDGE: Chambers of MAGISTRATE JUDGE WILLIAM C SHERRILL, JR notified that action is needed Re: 239 Affidavit,. (pll) (Entered: 07/05/2011)
240 ATTORNEY TIME RECORDS − SEALED PORTION by FELIX GARCIA. (Attachments: # 1 Exhibit Shawn A. Heller Time Record, # 2 Exhibit Randall C. Berg, Jr. Time Record, # 3 Exhibit Joshua A. Glickman Time Record) (BERG, RANDALL) (Entered: 07/15/2011)
241 ATTORNEY TIME RECORDS by FELIX GARCIA. (BERG, RANDALL) (Entered: 07/15/2011)
242 ATTORNEY TIME RECORDS by FELIX GARCIA. (CASERTA, SHARON) (Entered: 07/15/2011)
243 ATTORNEY TIME RECORDS − SEALED PORTION by FELIX GARCIA. (CASERTA, SHARON) (Entered: 07/15/2011)
244 FOURTH REPORT AND RECOMMENDATION, it is RECOMMENDED that Plaintiff's motion to certify class, doc. 195 , be DENIED, the motion for a preliminary injunction, doc. 198 , be DENIED, that the court ORDER that the parties may file motions for summary judgment within 20 days of the entry of the order adopting this recommendation, and that the case be REMANDED to me for further proceedings. Signed by MAGISTRATE JUDGE WILLIAM C SHERRILL, JR on 7/20/11. Internal deadline for referral to district judge if objections are not filed earlier: 8/17/2011. (pll)

07/27/2011 07/27/2011
07/29/2011
08/12/2011 08/12/2011
08/14/2011 08/14/2011 08/22/2011 08/23/2011 08/29/2011 08/29/2011 08/30/2011
08/30/2011
09/14/2011

(Entered: 07/20/2011)
245 MOTION for Extension of Time to File OBJECTIONS TO THE MAGISTRATES FOURTH REPORT AND RECOMMENDATION (UNOPPOSED) by FELIX GARCIA. (HELLER, SHAWN) (Entered: 07/27/2011)
ACTION REQUIRED BY DISTRICT JUDGE: Chambers of SENIOR JUDGE STEPHAN P MICKLE notified that action is needed Re: 245 MOTION for Extension of Time to File OBJECTIONS TO THE MAGISTRATES FOURTH REPORT AND RECOMMENDATION (UNOPPOSED) by FELIX GARCIA. (jws) (Entered: 07/27/2011)
246 ORDER re 245 MOTION for Extension of Time to File OBJECTIONS TO THE MAGISTRATES FOURTH REPORT AND RECOMMENDATION (UNOPPOSED) filed by FELIX GARCIA is GRANTED. (Internal deadline for referral to district judge if objections are not filed earlier: 8/22/2011.). Signed by SENIOR JUDGE STEPHAN P MICKLE on 7/29/2011. (jws) (Entered: 08/01/2011)
247 ATTORNEY TIME RECORDS by FELIX GARCIA. (BERG, RANDALL) (Entered: 08/12/2011)
248 ATTORNEY TIME RECORDS − SEALED PORTION by FELIX GARCIA. (Attachments: # 1 Exhibit Attornney Time Record − Randall C. Berg, Jr., # 2 Exhibit Attorney Time Record − Joshua A. Glickman, # 3 Exhibit Attorney Time Record − Shawn A. Heller, # 4 Exhibit Attorney Time Record − Dante P. Trevisani) (BERG, RANDALL) (Entered: 08/12/2011)
249 ATTORNEY TIME RECORDS by FELIX GARCIA. (CASERTA, SHARON) (Entered: 08/14/2011)
250 ATTORNEY TIME RECORDS − SEALED PORTION by FELIX GARCIA. (CASERTA, SHARON) (Entered: 08/14/2011)
251 OBJECTION to 244 Report and Recommendations by FELIX GARCIA. (Attachments: # 1 Exhibit 1 − Destruction of Property Form, # 2 Exhibit 2 − Galloway Memorandum, # 3 Exhibit 3 − Inmates with Life Sentences at Polk) (HELLER, SHAWN) (Entered: 08/22/2011)
ACTION REQUIRED BY DISTRICT JUDGE: Chambers of SENIOR JUDGE STEPHAN P MICKLE notified that action is needed Re: 244 REPORT AND RECOMMENDATION, 251 Objection to Report and Recommendations (pll) (Entered: 08/23/2011)
252 MOTION to Substitute Party , Unopposed by EDWIN BUSS. (SANFORD, JONATHAN) (Entered: 08/29/2011)
253 MOTION for Extension of Time to File Response/Reply as to 251 Objection to Report and Recommendations , Unopposed by EDWIN BUSS. (SANFORD, JONATHAN) (Entered: 08/29/2011)
ACTION REQUIRED BY DISTRICT JUDGE: Chambers of SENIOR JUDGE STEPHAN P MICKLE notified that action is needed Re: 252 MOTION to Substitute Party , Unopposed, 253 MOTION for Extension of Time to File Response as to 251 Objection to Report and Recommendations , Unopposed filed by EDWIN BUSS. (jws) (Entered: 08/30/2011)
254 ORDER re 253 MOTION for Extension of Time to File Response as to 251 Objection to Report and Recommendations , Unopposed filed by EDWIN BUSS is GRANTED. (Internal deadline for referral to district judge if objections are not filed earlier: 9/16/2011.). Signed by SENIOR JUDGE STEPHAN P MICKLE on 8/30/2011. (jws) (Entered: 08/30/2011)
255 ATTORNEY TIME RECORDS − SEALED PORTION by FELIX GARCIA. (Attachments: # 1 Exhibit Attorney Time Record − Shawn A. Heller, # 2 Exhibit Attorney Time Record − Randall C. Berg, Jr., # 3 Exhibit Attorney Time Record − Joshua A. Glickman, # 4 Exhibit Attorney Time Record − Dante P. Trevisani) (BERG, RANDALL) (Entered: 09/14/2011)

09/14/2011 09/15/2011 09/15/2011 09/16/2011 09/19/2011 09/19/2011
09/20/2011 09/20/2011
10/07/2011 10/11/2011
10/11/2011
10/12/2011
10/12/2011 10/17/2011 10/17/2011 10/31/2011

256 ATTORNEY TIME RECORDS by FELIX GARCIA. (BERG, RANDALL) (Entered: 09/14/2011)
257 ATTORNEY TIME RECORDS by FELIX GARCIA. (CASERTA, SHARON) (Entered: 09/15/2011)
258 ATTORNEY TIME RECORDS − SEALED PORTION by FELIX GARCIA. (CASERTA, SHARON) (Entered: 09/15/2011)
259 RESPONSE by EDWIN BUSS re 251 Objection to Report and Recommendations . (SANFORD, JONATHAN) (Entered: 09/16/2011)
ACTION REQUIRED BY DISTRICT JUDGE: Chambers of SENIOR JUDGE STEPHAN P MICKLE notified that action is needed Re: 244 REPORT AND RECOMMENDATION, 259 Response/Reply. (pll) (Entered: 09/19/2011)
260 ORDER adopting 244 Report and Recommendations; DENYING 195 Motion to Certify Class ; DENYING 198 Motion for Preliminary Injunction. Signed by SENIOR JUDGE STEPHAN P MICKLE on 9/19/2011. The parties are hereby permitted to file motions for summary judgment within 20 days of the entry of this order. This case is remanded to the Magistrate Judge for further proceedings. (kdm) Modified on 10/4/2011 to correct filed date (kdm). (Entered: 09/20/2011)
Set Deadline: Motions for Summary Judgment to be filed by 10/11/2011. (kdm) (Entered: 09/20/2011)
ACTION REQUIRED BY MAGISTRATE JUDGE: Chambers of MAGISTRATE JUDGE WILLIAM C SHERRILL, JR notified that action is needed Re: 260 ORDER adopting 244 Report and Recommendations −−−− This case is remanded to the Magistrate Judge for further proceedings. (kdm) (Entered: 09/20/2011)
261 Joint MOTION to Extend Time by EDWIN BUSS. (SANFORD, JONATHAN) (Entered: 10/07/2011)
ACTION REQUIRED BY MAGISTRATE JUDGE: Chambers of MAGISTRATE JUDGE WILLIAM C SHERRILL, JR notified that action is needed, Re: 261 Defendant's Joint MOTION to Extend Time. Referred to WILLIAM C SHERRILL, JR. (krb) (Entered: 10/11/2011)
262 ORDER, GRANTING 252 MOTION to Substitute Party, Unopposed, GRANTING 261 Joint MOTION to Extend Time. (Summary−Judgment Motions to be filed by 10/31/2011.) **Department of Corrections Secretary Kenneth S. Tucker is substituted as the Defendant in this case for former Secretary Edwin G. Buss pursuant to FED. R. CIV. P. 25(d).** Signed by MAGISTRATE JUDGE WILLIAM C SHERRILL, JR on 10/11/2011. (krb) (Entered: 10/11/2011)
263 ATTORNEY TIME RECORDS − SEALED PORTION by FELIX GARCIA. (Attachments: # 1 Exhibit Attorney time Record − Randall C. Berg, Jr., # 2 Exhibit Attorney Time Record − Joshua A. Glickman, # 3 Exhibit Attorney Time Record − Shawn A. Heller, # 4 Exhibit Attorney Time Record − Dante P. Trevisani) (BERG, RANDALL) (Entered: 10/12/2011)
264 ATTORNEY TIME RECORDS by FELIX GARCIA. (BERG, RANDALL) (Entered: 10/12/2011)
265 ATTORNEY TIME RECORDS by FELIX GARCIA. (CASERTA, SHARON) (Entered: 10/17/2011)
266 ATTORNEY TIME RECORDS − SEALED PORTION by FELIX GARCIA. (CASERTA, SHARON) (Entered: 10/17/2011)
267 Second MOTION for Summary Judgment by KENNETH S TUCKER. (Internal deadline for referral to judge if response not filed earlier: 11/18/2011). (Attachments: # 1 Appendix Exhibit List, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G, # 9 Exhibit H, # 10 Exhibit I, # 11 Exhibit J, # 12 Exhibit K, # 13 Exhibit L, # 14 Exhibit M, # 15 Exhibit N, # 16 Exhibit O, # 17 Exhibit P, # 18 Exhibit Q, # 19 Exhibit R) (SANFORD, JONATHAN) (Entered: 10/31/2011)

10/31/2011 10/31/2011 11/01/2011
11/09/2011 11/10/2011
11/10/2011

268 MOTION for Summary Judgment by FELIX GARCIA. (Internal deadline for referral to judge if response not filed earlier: 11/18/2011). (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3) (HELLER, SHAWN) (Entered: 10/31/2011)
269 STATEMENT OF FACTS Re: 268 MOTION for Summary Judgment . (HELLER, SHAWN) (Entered: 10/31/2011)
ACTION REQUIRED BY MAGISTRATE JUDGE: Chambers of MAGISTRATE JUDGE WILLIAM C SHERRILL, JR notified that action is needed Re: 268 MOTION for Summary Judgment , 267 Second MOTION for Summary Judgment , 269 Statement of Facts. Referred to WILLIAM C SHERRILL, JR. (pll) (Entered: 11/01/2011)
270 Joint MOTION for Extension of Time to File RESPONSES TO CROSS MOTIONS FOR SUMMARY JUDGMENT by FELIX GARCIA. (HELLER, SHAWN) (Entered: 11/09/2011)
ACTION REQUIRED BY MAGISTRATE JUDGE: Chambers of MAGISTRATE JUDGE WILLIAM C SHERRILL, JR notified that action is needed Re: 270 Joint MOTION for Extension of Time to File RESPONSES TO CROSS MOTIONS FOR SUMMARY JUDGMENT. Referred to WILLIAM C SHERRILL, JR. (pll) (Entered: 11/10/2011)
271 ORDER granting 270 Joint Motion for Extension of Time to File.

Responses to the pending motions for summary judgment [267 and 268] shall be filed on or before December 2, 2011.

The motions for summary judgment will be taken under advisement on December 2, 2011, and a report and recommendation will be issued after that date.

s/ William C. Sherrill, Jr. United States Magistrate Judge (wcs, Tallahassee)

11/10/2011 11/15/2011 11/15/2011 11/15/2011
11/15/2011 12/02/2011 12/02/2011 12/02/2011 12/02/2011

(Entered: 11/10/2011)
Set/Reset Deadlines as to 267 Second MOTION for Summary Judgment , 268 MOTION for Summary Judgment . (Internal deadline for referral to judge if response not filed earlier: 12/2/2011). (pll) (Entered: 11/14/2011)
272 ATTORNEY TIME RECORDS by FELIX GARCIA. (CASERTA, SHARON) (Entered: 11/15/2011)
273 ATTORNEY TIME RECORDS − SEALED PORTION by FELIX GARCIA. (CASERTA, SHARON) (Entered: 11/15/2011)
274 ATTORNEY TIME RECORDS − SEALED PORTION by FELIX GARCIA. (Attachments: # 1 Exhibit Attorney Time Record − Shawn A. Heller, # 2 Exhibit Attorney Time Record − Randall C. Berg, Jr., # 3 Exhibit Attorney Time Record − Joshua A. Glickman, # 4 Exhibit Attorney Time Record − Dante P. Trevisani) (BERG, RANDALL) (Entered: 11/15/2011)
275 ATTORNEY TIME RECORDS by FELIX GARCIA. (BERG, RANDALL) (Entered: 11/15/2011)
276 RESPONSE in Opposition re 268 MOTION for Summary Judgment filed by KENNETH S TUCKER. (SANFORD, JONATHAN) (Entered: 12/02/2011)
277 STATEMENT OF FACTS Re: 276 Response in Opposition to Motion. (Attachments: # 1 Exhibit A) (SANFORD, JONATHAN) (Entered: 12/02/2011)
278 RESPONSE in Opposition re 267 Second MOTION for Summary Judgment filed by FELIX GARCIA. (Attachments: # 1 Exhibit 1 − Johnson Order) (HELLER, SHAWN) (Entered: 12/02/2011)
279 STATEMENT OF FACTS Re: 278 Response in Opposition to Motion. (Attachments: # 1 Exhibit 1 − Do Deposition, # 2 Exhibit 2 − Garcia Decl. Feb 3, # 3 Exhibit 3 − Upchurch Depo., # 4 Exhibit 4 − Garcia Decl. Nov. 30) (HELLER, SHAWN) (Entered: 12/02/2011)

12/05/2011 12/08/2011
12/08/2011 12/08/2011 12/09/2011 12/09/2011

ACTION REQUIRED BY MAGISTRATE JUDGE: Chambers of MAGISTRATE JUDGE WILLIAM C SHERRILL, JR notified that action is needed Re: 276 Response in Opposition to Motion, 278 Response in Opposition to Motion, 279 Statement of Facts, 277 Statement of Facts. (pll) (Entered: 12/05/2011)
280 ATTORNEY TIME RECORDS − SEALED PORTION by FELIX GARCIA. (Attachments: # 1 Exhibit Attorney Time Record − Shawn Heller, # 2 Exhibit Attorney Time Record − Randall C. Berg, Jr., # 3 Exhibit Attorney Time Record − Joshua A. Glickman, # 4 Exhibit Attorney Time Record − Dante P. Trevisani) (BERG, RANDALL) (Entered: 12/08/2011)
281 ATTORNEY TIME RECORDS by FELIX GARCIA. (BERG, RANDALL) (Entered: 12/08/2011)
282 MOTION for Leave to File re 278 Response in Opposition to Motion , Unopposed by KENNETH S TUCKER. (SANFORD, JONATHAN) (Entered: 12/08/2011)
ACTION REQUIRED BY MAGISTRATE JUDGE: Chambers of MAGISTRATE JUDGE WILLIAM C SHERRILL, JR notified that action is needed Re: 282 MOTION for Leave to File re 278 Response in Opposition to Motion , Unopposed. Referred to WILLIAM C SHERRILL, JR. (pll) (Entered: 12/09/2011)
283 ORDER denying 282 Unopposed Motion for Leave to File a Reply. A reply is not needed. The issues have been adequately argued.

s/ William C. Sherrill, Jr. United States Magistrate Judge (wcs, Tallahassee)

12/15/2011 12/15/2011 12/20/2011
12/22/2011 12/23/2011
12/28/2011

(Entered: 12/09/2011)
284 ATTORNEY TIME RECORDS by FELIX GARCIA. (CASERTA, SHARON) (Entered: 12/15/2011)
285 ATTORNEY TIME RECORDS − SEALED PORTION by FELIX GARCIA. (CASERTA, SHARON) (Entered: 12/15/2011)
286 FIFTH REPORT AND RECOMMENDATION, It is RECOMMENDED that Defendant's summary judgment motion, doc. 267 , be GRANTED as to liability for nominal damages for the ADA claim, but otherwise DENIED, that judgment not yet be directed. Plaintiff's summary judgment motion, doc. 268 , be DENIED. Signed by MAGISTRATE JUDGE WILLIAM C SHERRILL, JR on 12/20/11. Internal deadline for referral to district judge if objections are not filed earlier: 1/17/2012. (pll) (Entered: 12/20/2011)
287 Joint MOTION to Extend TimeFor Filing Objections to the Fifth Report and Recommendation by FELIX GARCIA. (BERG, RANDALL) (Entered: 12/22/2011)
ACTION REQUIRED BY MAGISTRATE JUDGE: Chambers of MAGISTRATE JUDGE WILLIAM C SHERRILL, JR notified that action is needed, Re: 287 Joint MOTION to Extend TimeFor Filing Objections to the Fifth Report and Recommendation. Referred to WILLIAM C SHERRILL, JR. (krb) (Entered: 12/23/2011)
288 ORDER granting 287 Joint Motion to Extend Time.

The time for conducting settlement discussions is extended to January 20, 2012.

The time for filing objections to the last report and recommendation is extended to February 3, 2012.

s/ William C. Sherrill, Jr. United States Magistrate Judge (wcs, Tallahassee)

12/28/2011

(Entered: 12/28/2011)
Set/Reset Deadlines as to 286 REPORT AND RECOMMENDATION. Settlement discussions due by 1/20/2012. Internal deadline for referral to district judge if objections are not filed earlier: 2/3/2012. (pll) (Entered: 12/29/2011)

01/13/2012
01/13/2012 01/16/2012 01/16/2012 01/20/2012 01/20/2012
01/23/2012
02/06/2012
02/06/2012 02/14/2012 02/14/2012 02/17/2012 02/21/2012
02/21/2012
02/23/2012 02/24/2012 02/28/2012

289 ATTORNEY TIME RECORDS − SEALED PORTION by TRACY O BLACKBURN, FELIX GARCIA, CHARLES B JOHNSON. (Attachments: # 1 Exhibit Attorney Time − Shawn A. Heller, # 2 Exhibit Attorney Time − Randall C. Berg, Jr., # 3 Exhibit Attorney Time − Joshua A. Glickman, # 4 Exhibit Attorney Time − Dante P. Trevisani) (BERG, RANDALL) (Entered: 01/13/2012)
290 ATTORNEY TIME RECORDS by TRACY O BLACKBURN, FELIX GARCIA, CHARLES B JOHNSON. (BERG, RANDALL) (Entered: 01/13/2012)
291 ATTORNEY TIME RECORDS by FELIX GARCIA. (CASERTA, SHARON) (Entered: 01/16/2012)
292 ATTORNEY TIME RECORDS − SEALED PORTION by FELIX GARCIA. (CASERTA, SHARON) (Entered: 01/16/2012)
293 Consent MOTION to Extend TimeFor Parties To Complete Settlement Discussions and To Submit Objections to Report and Recommendation by KENNETH S TUCKER. (MAHER, SUSAN) (Entered: 01/20/2012)
ACTION REQUIRED BY DISTRICT JUDGE: Chambers of SENIOR JUDGE STEPHAN P MICKLE notified that action is needed Re: 293 Consent MOTION to Extend TimeFor Parties To Complete Settlement Discussions and To Submit Objections to 286 Report and Recommendation filed by KENNETH S TUCKER. (jws) (Entered: 01/20/2012)
294 ORDER granting 293 Consent MOTION to Extend TimeFor Parties To Complete Settlement Discussions and To Submit Objections to Report and Recommendation filed by KENNETH S TUCKER. (Settlement Deadline − by 2/6/2012., Internal deadline for referral to district judge if objections are not filed earlier: 2/20/2012.). Signed by SENIOR JUDGE STEPHAN P MICKLE on 1/23/2012. (jws) (Entered: 01/23/2012)
295 ATTORNEY TIME RECORDS − SEALED PORTION by TRACY O BLACKBURN, FELIX GARCIA, CHARLES B JOHNSON. (Attachments: # 1 Exhibit Attorney Time Record − Shawn A. Heller, # 2 Exhibit Attorney Time Record − Randall C. Berg, Jr., # 3 Exhibit Attorney Time Record − Joshua A. Glickman) (BERG, RANDALL) (Entered: 02/06/2012)
296 ATTORNEY TIME RECORDS by TRACY O BLACKBURN, FELIX GARCIA, CHARLES B JOHNSON. (BERG, RANDALL) (Entered: 02/06/2012)
297 ATTORNEY TIME RECORDS by FELIX GARCIA. (CASERTA, SHARON) (Entered: 02/14/2012)
298 ATTORNEY TIME RECORDS − SEALED PORTION by FELIX GARCIA. (CASERTA, SHARON) (Entered: 02/14/2012)
299 Joint MOTION for Extension of Time to File OBJECTIONS TO FIFTH REPORT AND RECOMMENDATION by FELIX GARCIA. (HELLER, SHAWN) (Entered: 02/17/2012)
ACTION REQUIRED BY DISTRICT JUDGE: Chambers of SENIOR JUDGE STEPHAN P MICKLE notified that action is needed Re: 299 Joint MOTION for Extension of Time to File OBJECTIONS TO FIFTH REPORT AND RECOMMENDATION. (kdm) (Entered: 02/21/2012)
300 ORDER granting 299 Joint MOTION for Extension of Time to File OBJECTIONS TO FIFTH REPORT AND RECOMMENDATION filed by FELIX GARCIA, ( Internal deadline for referral to district judge if objections are not filed earlier: 2/27/2012.). Signed by SENIOR JUDGE STEPHAN P MICKLE on 2/21/12. (bkp) (Entered: 02/21/2012)
301 Letter from FELIX GARCIA. (jws) (Entered: 02/24/2012)
ACTION REQUIRED BY DISTRICT JUDGE: Chambers of SENIOR JUDGE STEPHAN P MICKLE notified that action is needed Re: 301 Letter from Plaintiff. (jws) (Entered: 02/24/2012)
ACTION REQUIRED BY DISTRICT JUDGE: Chambers of SENIOR JUDGE STEPHAN P MICKLE notified that action is needed Re: 286 REPORT AND

03/01/2012 03/01/2012 03/05/2012 03/05/2012 03/07/2012 03/08/2012 03/08/2012
03/09/2012
03/09/2012 03/12/2012 03/12/2012 04/16/2012 04/16/2012
04/24/2012 04/24/2012 04/24/2012 04/30/2012

RECOMMENDATION − Objections due by 2/27/2012. None filed as of this date. (jws) (Entered: 02/28/2012)
302 NOTICE of Settlement [PENDING] by KENNETH S TUCKER (MAHER, SUSAN) (Entered: 03/01/2012)
ACTION REQUIRED BY DISTRICT JUDGE: Chambers of SENIOR JUDGE MAURICE M PAUL notified that action is needed Re: 302 Notice of Settlement (Pending). (jws) (Entered: 03/01/2012)
NO ACTION REQUIRED BY DISTRICT JUDGE: Chambers of SENIOR JUDGE MAURICE M PAUL notified that action is NOT needed Re: 302 Notice of Settlement. (jws) (Entered: 03/05/2012)
ACTION REQUIRED BY DISTRICT JUDGE: Chambers of SENIOR JUDGE STEPHAN P MICKLE notified that action is needed Re: 302 Notice of Settlement (Pending). (jws) (Entered: 03/05/2012)
303 NOTICE of Filing by KENNETH S TUCKER (Attachments: # 1 Appendix Executed Settlement and Release of All Claims) (MAHER, SUSAN) (Entered: 03/07/2012)
ACTION REQUIRED BY DISTRICT JUDGE: Chambers of SENIOR JUDGE STEPHAN P MICKLE notified that action is needed Re: 303 Notice (Other). (pll) (Entered: 03/08/2012)
304 ***VACATED PER 321 ORDER*** ORDER OF DISMISSAL: Case is hereby DISMISSED pursuant to 303 Notice of Settlement. Signed by SENIOR JUDGE STEPHAN P MICKLE on 3/8/2012. (jws) Modified on 5/11/2012 (jws). (Entered: 03/08/2012)
305 ATTORNEY TIME RECORDS − SEALED PORTION by FELIX GARCIA. (Attachments: # 1 Exhibit Attorney Time Record − Shawn A. Heller, # 2 Exhibit Attorney Time Record − Joshua A. Glickman, # 3 Exhibit Attorney Time Record − Randall C. Berg, Jr.) (BERG, RANDALL) (Entered: 03/09/2012)
306 ATTORNEY TIME RECORDS by FELIX GARCIA. (BERG, RANDALL) (Entered: 03/09/2012)
307 ATTORNEY TIME RECORDS by FELIX GARCIA. (CASERTA, SHARON) (Entered: 03/12/2012)
308 ATTORNEY TIME RECORDS − SEALED PORTION by FELIX GARCIA. (CASERTA, SHARON) (Entered: 03/12/2012)
309 ATTORNEY TIME RECORDS by FELIX GARCIA. (BERG, RANDALL) (Entered: 04/16/2012)
310 ATTORNEY TIME RECORDS − SEALED PORTION by FELIX GARCIA. (Attachments: # 1 Exhibit Attorney Time Record − Randall C. Berg, Jr., # 2 Exhibit Attorney Time Record − Joshua A. Glickman, # 3 Exhibit Attorney Time Record − Shawn A. Heller, # 4 Exhibit Attorney Time Record − Dante P. Trevisani) (BERG, RANDALL) (Entered: 04/16/2012)
311 First MOTION for Extension of Time to File March Fee record by FELIX GARCIA. (CASERTA, SHARON) (Entered: 04/24/2012)
ACTION REQUIRED BY DISTRICT JUDGE: Chambers of SENIOR JUDGE STEPHAN P MICKLE notified that action is needed Re: 311 First MOTION for Extension of Time to File March Fee record (bkp) (Entered: 04/24/2012)
312 Amended NOTICE OF MEDIATION re Scheduling by FELIX GARCIA (BERG, RANDALL) (Entered: 04/24/2012)
313 ORDER re 311 First MOTION for Extension of Time to File March Fee record filed by FELIX GARCIA is GRANTED. (March, 2012 Fee Records Deadline − by 5/4/2012.). Signed by SENIOR JUDGE STEPHAN P MICKLE on 4/30/2012. (jws) (Entered: 04/30/2012)

05/01/2012 05/01/2012 05/01/2012 05/01/2012 05/01/2012 05/01/2012 05/03/2012 05/03/2012
05/07/2012 05/10/2012
06/15/2012 06/15/2012 06/15/2012 06/15/2012 07/03/2012 07/03/2012
07/05/2012

314 ATTORNEY TIME RECORDS by FELIX GARCIA. (CASERTA, SHARON) (Entered: 05/01/2012)
315 ATTORNEY TIME RECORDS − SEALED PORTION by FELIX GARCIA. (CASERTA, SHARON) (Entered: 05/01/2012)
316 ATTORNEY TIME RECORDS by FELIX GARCIA. (CASERTA, SHARON) (Entered: 05/01/2012)
317 ATTORNEY TIME RECORDS − SEALED PORTION by FELIX GARCIA. (CASERTA, SHARON) (Entered: 05/01/2012)
318 ATTORNEY TIME RECORDS by FELIX GARCIA. (BERG, RANDALL) (Entered: 05/01/2012)
319 ATTORNEY TIME RECORDS − SEALED PORTION by FELIX GARCIA. (Attachments: # 1 Exhibit Attorney Time (April 2012)) (BERG, RANDALL) (Entered: 05/01/2012)
320 Joint MOTION to Reopen Case for Modification of Settlement Agreement by FELIX GARCIA. (GLICKMAN, JOSHUA) (Entered: 05/03/2012)
ACTION REQUIRED BY DISTRICT JUDGE: Chambers of SENIOR JUDGE STEPHAN P MICKLE notified that action is needed Re: 320 Joint MOTION to Reopen Case for Modification of Settlement Agreement filed by FELIX GARCIA. (jws) (Entered: 05/03/2012)
ACTION REQUIRED BY DISTRICT JUDGE: Chambers of SENIOR JUDGE STEPHAN P MICKLE notified that action is needed Re: Fee Records filed per 313 Order. (jws) (Entered: 05/07/2012)
321 ORDER REOPENING CASE FOR MODIFICATION OF SETTLEMENT AGREEMENT: 320 Joint Motion to Reopen Case is GRANTED. 304 Order of Dismissal is VACATED. Court adopts modification to Paragraph Four of Settlement Agreement as revised on page three of the 320 joint motion. Pursuant to Defendants' 303 Notice of Filing Executed Settlement and Release of All Claims, the [303−1] Settlement Agreement and Release of All Claims, and 320 modification, this case is DISMISSED WITH PREJUDICE. Signed by SENIOR JUDGE STEPHAN P MICKLE on 5/10/2012. (jws) (Entered: 05/11/2012)
322 ATTORNEY TIME RECORDS by FELIX GARCIA. (BERG, RANDALL) (Entered: 06/15/2012)
323 ATTORNEY TIME RECORDS − SEALED PORTION by FELIX GARCIA. (Attachments: # 1 Exhibit Attorney Time − FJI − May 2012) (BERG, RANDALL) (Entered: 06/15/2012)
324 ATTORNEY TIME RECORDS by FELIX GARCIA. (CASERTA, SHARON) (Entered: 06/15/2012)
325 ATTORNEY TIME RECORDS − SEALED PORTION by FELIX GARCIA. (CASERTA, SHARON) (Entered: 06/15/2012)
326 Consent MOTION to Withdraw as Attorney by FELIX GARCIA. (GLICKMAN, JOSHUA) (Entered: 07/03/2012)
ACTION REQUIRED BY DISTRICT JUDGE: Chambers of SENIOR JUDGE STEPHAN P MICKLE notified that action is needed Re: 326 Consent MOTION to Withdraw as Plaintiff Attorney, JOSHUA AARON GLICKMAN. (jws) (Entered: 07/03/2012)
327 ORDER GRANTING WITHDRAWAL: 326 Unopposed Motion to Withdraw as Counsel is GRANTED. Attorney JOSHUA AARON GLICKMAN terminated. The Florida Justice Institute, Inc., Jacksonville Area Legal Aid, Inc., and the respective attorneys identified as counsel of record for Plaintiff, will continue representing Plaintiff in this action. Signed by SENIOR JUDGE STEPHAN P MICKLE on 7/5/2012. (jws) (Entered: 07/05/2012)

07/16/2012 07/16/2012
07/16/2012 07/16/2012 07/25/2012 07/26/2012
07/27/2012
08/09/2012 08/14/2012
09/17/2012 10/12/2012 12/17/2012 12/18/2012 01/31/2013 02/20/2013

328 ATTORNEY TIME RECORDS by FELIX GARCIA. (BERG, RANDALL) (Entered: 07/16/2012)
329 ATTORNEY TIME RECORDS − SEALED PORTION by FELIX GARCIA. (Attachments: # 1 Exhibit Attorney Time (FJI) June 2012) (BERG, RANDALL) (Entered: 07/16/2012)
330 ATTORNEY TIME RECORDS by FELIX GARCIA. (CASERTA, SHARON) (Entered: 07/16/2012)
331 ATTORNEY TIME RECORDS − SEALED PORTION by FELIX GARCIA. (CASERTA, SHARON) (Entered: 07/16/2012)
332 MOTION (TITLED: Request) for Injunction and Notice of Inquiry by FELIX GARCIA. (jws) (Entered: 07/26/2012)
ACTION REQUIRED BY DISTRICT JUDGE: Chambers of SENIOR JUDGE STEPHAN P MICKLE notified that action is needed Re: 332 MOTION (TITLED: Request) for Injunction and Notice of Inquiry by Plaintiff. (jws) (Entered: 07/26/2012)
333 ORDER denying 332 MOTION (TITLED: Request) for Injunction and Notice of Inquiry by FELIX GARCIA. Signed by SENIOR JUDGE STEPHAN P MICKLE on 7/27/2012. (jws) (Entered: 07/27/2012)
334 MEDIATION REPORT − Settled (kdm) (Entered: 08/14/2012)
ACTION REQUIRED BY DISTRICT JUDGE: Chambers of SENIOR JUDGE STEPHAN P MICKLE notified that action is needed Re: 334 Mediation Report − Settled. (kdm) (Entered: 08/14/2012)
335 Partial Filing fee: $ 280.00, receipt number B091712 (pll) (Entered: 09/19/2012)
336 Partial Filing fee: $ 28.00, receipt number DOC B 101212 (pll) (Entered: 10/15/2012)
338 Partial Filing fee: $ 5.00, receipt number DOC B121712 (pll) (Entered: 12/19/2012)
337 Filing fee: $ 5.00, receipt number DOC B 121812 (pll) (Entered: 12/19/2012)
339 Partial Filing fee: $ 5.00, receipt number DOC B013113. Balance $19.00. (pll) (Entered: 02/05/2013)
340 Partial Filing fee: $ 19.00, receipt number DOC B022013. (jws) (Entered: 02/22/2013)