UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA JACKSONVILLE DNISION

'":''''''''',.(
i. '.... '...,'1

r·~'-, ~. ' - '

.-, '1
__

. ';3 l\ -\

!
-

'~..

..--

SYLVESTER BUTLER, KELVIN

i.

FRAZIER, CURT MASSIE, JEREMIAH

THOMAS, EUGENE ULRATH,

REGINALD WILLIAMS,

Plaintiffs, v.

JAMES V. CROSBY, JR., BRADLEY CARTER, GEORGE SAPP, STEPHEN
SIRMONES, JOE LAZENBY JR., ALLEN CLARK, MARK REDD, KEITH MUSSELMAN, TONY ANDERSON, JAMES WILSON, WILLIAM MUSE, COLIN HALLE, STEVEN TRICOCCI, TIM CHASTAIN, RODNEY BARNETT, RONNIE BARTON, KENNETH LAMPP, WENDELL WHITEHURST, STACEY GREEN, DAVID REYNOLDS, JOHN RIGGS, GLYNN REEDER, JOHN RIZER, OSCAR SHIPLEY, DEAN ELLIS, JEFFREY LINDSEY, BILLY JARVIS, each in his individual capacity,

Civil Action No. "3: ot{-f!/IJ-111-J-~rnfl'1 H

Defendants.

INITIAL COMPLAINT AND JURY DEMAND Plaintiffs, Sylvester Butler, Kelvin Frazier, Curt Massie, Jeremiah Thomas, Reginald Williams and Eugene Ulrath, sue Defendants James V. Crosby, Jr., Bradley Carter, George Sapp, Stephen Sirmones, Joe Lazenby Jr., Allen Clark, Mark Redd, Keith Musselman, Tony Anderson, James Wilson, William Muse, Colin Halle, Steven Tricocci, Tim Chastain, Rodney Barnett, Ronnie Barton, Kenneth Lampp, Wendel Whitehurst, Stacey Green, David Reynolds,

John Riggs, Glynn Reeder, John Rizer, Oscar Shipley, Dean Ellis, Jeffrey Lindsey, and Billy Jarvis, and allege:
Preliminary Statement
1. This is a civil rights action brought by six inmates at Florida State Prison, pursuant to 42 U.S.C. § 1983, seeking compensatory and punitive damages and alleging that Defendants have engaged in a pattern and practice of excessive and unauthorized use of chemical agents against Plaintiffs and other Florida State Prison inmates in violation of the Eighth and Fourteenth Amendments to the United States Constitution. Defendants include Florida State Prison correctional officers who have used chemical agents against the Plaintiffs maliciously and sadistically for the very purpose of causing harm and not in a good faith effort to maintain or restore order. Defendants also include supervisors at Florida State Prison who have participated, facilitated, encouraged, or acquiesced in the correctional officers' abuse of the Plaintiffs with chemical agents.
Jurisdiction 2. Jurisdiction of this Court is invoked pursuant to 28 U.S.c. §1331 in that this is a civil action arising under the Constitution of the United States. 3. Jurisdiction ofthis Court is invoked pursuant to 28 U.S.C. § 1343(a)(3) in that this action seeks to redress the deprivation, under color of state law, of rights secured to the Plaintiffs by the Eighth and Fourteenth Amendments to the Constitution of the United States. 4. The Plaintiffs' claims for relief are predicated upon 42 U.S.C. § 1983, which
2

authorizes actions to redress the deprivation, under color of state law, of rights, privileges and immunities secured to the Plaintiffs by the Constitution and laws of the United States.
5. The Plaintiffs' claims for attorneys' fees and costs is predicated upon 42 U.S.c. § 1988, which authorizes the award of attorneys' fees and costs to prevailing plaintiffs in actions brought pursuant to 42 U.S.C. § 1983.
6. All Plaintiffs have fully exhausted their administrative remedies. Venue
7. Venue is proper in this District under 28 U.S.C. § 1391(b) because at least one of the Defendants resides in this District and a substantial part of the events and omissions giving rise to Plaintiffs' claims occurred in this District.
Parties 8. Plaintiff, Sylvester Butler, is a prisoner currently incarcerated at Santa Rosa Correctional Institution in Santa Rosa County, Florida. When the events giving rise to his claim occurred, he was incarcerated at Florida State Prison, located in Bradford County, Florida. 9. Plaintiff, Kelvin Frazier, is a prisoner currently incarcerated at Charlotte Correctional Institution in Charlotte County, Florida. When the events giving rise to his claim occurred, he was incarcerated at Florida State Prison, located in Bradford County, Florida. 10. Plaintiff, Curt Massie, is a prisoner currently incarcerated at Desoto Correctional Institution Annex in Desoto County, Florida. When the events giving rise to this his claim occurred, he was incarcerated at Florida State Prison, located in Bradford County,
3

Florida. 11.

Plaintiff, Jeremiah Thomas, is a prisoner currently incarcerated at Union

Correctional Institution, located in Union County, Florida. When the events giving rise to his

claim occurred, he was incarcerated at Florida State Prison, located in Bradford County,

Florida.

12. Plaintiff, Eugene Ulrath, is a prisoner currently incarcerated at Union Correctional Institution in Union County, Florida. When the events giving rise to his claim

occurred, he was incarcerated at Florida State Prison in Bradford County, Florida.

13. Plaintiff, Reginald Williams, is a prisoner currently incarcerated at Union

Correctional Institution in Union County, Florida. When the events giving rise to his claim

occurred, he was incarcerated at Florida State Prison in Bradford County, Florida.

14. Defendant, James V. Crosby, Jr. was the Warden of Florida State Prison from

February 1998 to July 18, 200l. Defendant Crosby is currently employed as the Secretary of the Florida Department of Corrections. He is sued in his individual capacity.

15. Defendant, Bradley Carter, was the Warden of Florida State Prison from July

18,2001 to October 1,2002. He is sued in his individual capacity.

16. Defendant, George Sapp, was an Assistant Warden employed at Florida State Prison from August 2, 1999 to November 1, 2000. He is sued in his individual capacity.
17. Defendant, Stephen Sirmones, was an Assistant Warden employed at Florida State Prison from June 30, 2000 to November 7, 2002. He is sued in his individual capacity.
18. Defendant, Joe Lazenby Jr., was an Assistant Warden employed at Florida

4

State Prison from September 7, 2001 to January 30,2003. He is sued in his individual capacity.
19. Defendant, Allen Clark, was a Correctional Officer Major and/or Colonel employed at Florida State Prison at all times material to this action. He is sued in his individual capacity.
20. Defendant Mark Redd, was a Correctional Officer Colonel employed at Florida State Prison from September 18, 1998 to June 28,2001. He is sued in his individual capacity.
21. Defendant, Keith Musselman, was a Correctional Officer Sergeant employed at Florida State Prison at all times material to this action. He is sued in his individual capacity.
22. Defendant, Tony Anderson, was a Correctional Officer Lieutenant employed at Florida State Prison at all times material to this action. He is sued in his individual capacity.
23. Defendant, James Wilson, was a Correctional Officer Sergeant employed at Florida State Prison at all times material to this action. He is sued in his individual capacity.
24. Defendant, William Muse, was a Correctional Officer Captain employed at Florida State Prison at all times material to this action. He is sued in his individual capacity.
25. Defendant, Colin Halle, was a Correctional Officer Lieutenant employed at Florida State Prison at all times material to this action. He is sued in his individual capacity.
26. Defendant, Steven Tricocci, was a Correctional Officer Sergeant employed at Florida State Prison at all times material to this action. He is sued in his individual capacity.
27. Defendant, Tim Chastain, was a Correctional Officer Captain employed at Florida State Prison at all times material to this action. He is sued in his individual capacity.
5

28. Defendant, Rodney Barnett, was a Correctional Officer Sergeant employed at Florida State Prison at all times material to this action. He is sued in his individual capacity.
29. Defendant, Ronnie Barton, was a Correctional Officer Sergeant employed at Florida State Prison at all times material to this action. He is sued in his individual capacity.
30. Defendant, Kenneth Lampp, was a Correctional Officer Captain employed at Florida State Prison at all times material to this action. He is sued in his individual capacity.
31. Defendant, Wendel Whitehurst, was a Correctional Officer Duty Warden and Assistant Warden employed at Florida State Prison at all times material to this action. He is sued in his individual capacity.
32. Defendant, Stacey Green, was a Correctional Officer Sergeant employed at Florida State Prison at all times material to this action. He is sued in his individual capacity.
33. Defendant, David Reynolds, was a Correctional Officer Sergeant employed at Florida State Prison at all times material to this action. He is sued in his individual capacity.
34. Defendant, John Riggs, was a Correctional Officer Captain employed at Florida State Prison at all times material to this action. He is sued in his individual capacity.
35. Defendant, Glynn Reeder, was a Correctional Officer Sergeant employed at Florida State Prison at all times material to this action. He is sued in his individual capacity.
36. Defendant, John Rizer, was a Correctional Officer Sergeant employed at Florida State Prison at all times material to this action. He is sued in his individual capacity.
37. Defendant, Oscar Shipley, was a Correctional Officer Sergeant employed at Florida State Prison at all times material to this action. He is sued in his individual capacity.
6

38. Defendant, Dean Ellis, was a Correctional Officer Captain employed at Florida State Prison at all times material to this action. He is sued in his individual capacity.
39. Defendant, Billy Jarvis, was a Major and/or Duty Warden employed at Florida State Prison at all times material to this action. He is sued in his individual capacity.
40. Defendant, Jeffrey Lindsey, was a Correctional Officer Sergeant employed at Florida State Prison at all times material to this action. He is sued in his individual capacity.
41. At all times relevant to the events described herein, the Defendants were acting under color of state law.
Factual Alleeations 42. Employees of Florida State Prison are authorized to use a variety of types of force where the circumstances warrant, including hands-on physical force, chemical agents, electronic immobilization devices, batons, and specialty munitions, as described in Rule 33602.210, Florida Administrative Code, promulgated by the Florida Department of Corrections. 43. Rule 33-602.210(14), F.A.C., provides that three types of chemical agents may be used against prisoners: 1. Oleoresin Capsicum (pepper spray), 2. Orthochlorbenzal Malononitrile or Orthochlorobenzylidene Malononitrile (CS tear gas), and 3. Cloroacetophene (CN tear gas). 44. As described in Rule 33-602.210(14), F.A.C., each of these chemical agents causes, and is intended to cause, intense physical pain when applied to human beings. The physical effects described by the Rule are as follows: (a) OC pepper spray "causes tearing and
7

involuntary closing of the eyes, nasal discharge, sneezing, disorientation, and the sensation of respiratory distress;" (b) CS tear gas "causes eyes to bum and tear, nasal discharge, and skin and upper respiratory irritation;" and (c) CN tear gas "causes tearing of the eyes, nasal discharge, and skin and upper respiratory irritation."
45. When an inmate is exposed to chemical agents, DOC rule 33-602.210 (14) and accepted correctional practice requires that the inmate be given a shower after the use of force.
46. Each Plaintiff was housed in Close Management at the Florida State Prison each time that he was abused with chemical agents. They were each in single confinement cells that had solid doors and limited ventilation.
47. Chemical agents, including OC pepper spray, CS tear gas, and CN tear gas, became the primary method of force used against prisoners during Defendant Crosby's tenure as Warden of Florida State Prison and continued to increase under his successor, Defendant Carter.
48. At Florida State Prison, chemical agents were used 238 times in 2000,385 times in 2001, and 447 times in 2002. This represents an 87% increase in the use of chemical agents over this period of time.
49. As Defendants escalated the use of chemical agents, prisoners increasingly complained that correctional officers were using chemical agents as a means of retaliating against them for lawful activities, such as seeking assistance, asking that staff follow the established rules, filing grievances, or otherwise complaining about their conditions of
8

incarceration. 50. Florida State Prison inmates filed countless grievances alleging that
correctional officers were using chemical agents on them without justification and in grossly excessive quantities.
51. Defendants Crosby, Carter, Sapp, Sirmones, and Lazenby reviewed numerous inmate grievances alleging abuse with chemical agents and had the responsibility to respond appropriately. They consistently failed to follow up on grievances alleging abuse with chemical agents, and failed to take action even when Department of Corrections Inspector General's Office, charged with investigating claims of abuse throughout the Florida prison system, determined that a complaint should be resolved at the institutional level.
52. Defendants Crosby, Carter, Sapp, Sirmones, and Lazenby reviewed the use of force reports submitted by the correctional officers who used chemical agents against inmates. They were responsible for making a recommendation as to whether the use of force should be approved or disapproved.
53. On information and belief, Defendants Crosby, Carter, Sapp, Sirmones and Lazenby never once recommended that the use of chemical agents be disapproved.
54. On information and belief, Defendants Crosby, Carter, Sapp, Sirmones and Lazenby never requested a special investigation into the emerging pattern of increased use of chemical agents and the corresponding claims that these weapons were being used to abuse and injure Florida State Prison inmates, including Plaintiffs'.
55. On information and belief, Defendants Crosby, Carter, Sapp, Sirmones and 9

Lazenby never made an effort to identify officers who were using chemical agents as a matter of routine or inquire about why there was such a dramatic rise in the use of these weapons.
56. Defendants Crosby and Carter promoted officers who were using chemical agents with increasing frequency, even though there were rising numbers of complaints of abuse against those same officers.
57. Defendants Crosby and Carter failed to train, supervise and discipline correctional officers to prevent the excessive and unjustified use of chemical agents against Florida State Prison inmates, including Plaintiffs.
58. Defendants Crosby and Carter failed to require videotaping of the use of chemical agents, although video cameras were available at the prison and every other type of force was required to be videotaped for review.
59. Defendants Crosby and Carter's policy of not videotaping the use of chemical agents was intended to avoid creating a record that would allow meaningful review of the use of chemical agents.
60. Defendants Redd, Clark and Jarvis held the most senior security staff positions at Florida State Prison and were responsible for direct supervision of the correctional officers who were using chemical agents.
61. Defendants Redd, Clark, and Jarvis actively encouraged the security staff to use chemical agents to humiliate and abuse prisoners and frequently authorized the use of chemical agents with full knowledge that the force was being used solely to inflict pain, including against Plaintiffs.
10

62. Defendants Crosby, Carter, Sapp, Sirmones, Lazenby, Redd, Clark and Jarvis routinely authorized the use of chemical agents, including against Plaintiffs, without taking steps to ensure that the use of force was consistent with constitutional standards and Rule 33602.210, F.A.C.
63. Defendants Crosby, Carter, Sapp, Sirmones, Lazenby, Redd, Clark and Jarvis actively implemented an unwritten policy that correctional officers were to use chemical agents to inflict corporal punishment on Florida State Prison inmates as a method of injuring and humiliating them.
64. In August 2000, a group of Florida State Prison inmates went on a hunger strike to protest the increasingly brutal use of chemical agents against them. They requested a meeting with Defendant Crosby to discuss their demand that he take action to stop the completely unjustified use of chemical agents against them.
65. Defendant Crosby refused to meet with the prisoners who were seeking relief from the officers who were using chemical agents against them for improper reasons and in response to past conduct.
66. As a result of the pattern and practice of using chemical agents to inflict pain, encouraged and facilitated by Defendants Crosby, Carter, Sapp, Sirmones, Lazenby, Redd, Clark, and Jarvis, the Plaintiffs suffered severe injuries to their skin, eyes, lungs, or mental health.
Sylvester Butler 67. Plaintiff Butler is a prisoner in the custody of the Florida Department of
11

Corrections. At all times material to the Complaint he was incarcerated at Florida State Prison
68. Plaintiff Butler has a history of psychiatric problems and is borderline developmentally disabled.
69. On October 3, 2000, while at Florida State Prison, Plaintiff Butler sought medical attention by declaring a medical emergency to security staff.
70. In response, Defendants Chastain and Reeder turned off the exhaust fans, approached his cell, unlocked the food flap and Defendant Reeder began spraying chemical agents into the cell. The can used was approximately the size of a fire extinguisher, with a long hose and nozzle that was inserted into the cell.
71. Despite Plaintiff Butler's compliance with all orders, Defendants returned twice during the next hour and sprayed tear gas into his cell. No warnings were given before chemical agents were used.
72. Defendants did not take Plaintiff Butler to the shower so he could rinse off the chemicals.
73. Defendant Clark authorized this use of force against Plaintiff Butler with full knowledge that it was being used solely as a means oftorture and intimidation.
74. Defendant Reeder wrote a pretextual and false Use of Force report alleging that force was used because Plaintiff Butler was "beating on his cell door and was refusing all verbal orders from me to cease his disorderly conduct or chemical agents would be administered." He also stated that he used only three I-second bursts of pepper spray and of
12

.. - - . -------"~-,
tear gas. 75. Defendant Reeder fabricated this Use of Force Report with the intention of
covering up his unjustified and excessive use of chemical agents on Plaintiff Butler. 76. In a further attempt to conceal his improper use of force, Defendant Reeder
wrote Plaintiff Butler a disciplinary report for disorderly conduct. 77. Defendants Reeder, Chastain and Clark were aware that the use of force on
Plaintiff Butler was not necessary to maintain or restore order because he was locked in his cell and only asking for medical attention.
78. Plaintiff Butler developed large, water filled blisters on his hip. The blisters eventually broke and Plaintiff Butler's skin peeled off, leaving his entire hip with a raw, seeping wound.
79. Plaintiff Butler has exhausted all available administrative remedies regarding the use of chemical agents against him on October 3, 2000.
Kelvin Frazier 80. Plaintiff Kelvin Frazier is a prisoner in the custody of the Florida Department of Corrections. At all times material to the Complaint he was incarcerated at Florida State Prison. 81. Plaintiff Frazier has asthma, a condition that causes inflammation of the lungs and reduced breathing capacity. 82. On January 4,2001, Defendants Reynolds and Riggs sprayed Plaintiff Frazier in response to his request to speak to Defendant Riggs, a Captain.
13

- - - . - ~-

~-.------~~~~~------~----.-.-~---

83. When Defendant Riggs arrived at Plaintiff Frazier's cell, instead of speaking with Plaintiff Frazier he directed Defendant Reynolds to spray pepper spray into the cell using a canister approximately the size of a fire extinguisher. No orders or warnings were issued to Plaintiff Frazier. Defendants Riggs and Reynolds continued to spray pepper spray and tear gas into Plaintiff Frazier's over the course of the next half hour.
84. The quantity of chemical agents used by Defendants was so great that Plaintiff Frazier was soaking wet, as were the walls, floor, and his personal property.
85. After exposure to chemical agents, Plaintiff Frazier had an asthma attack leaving him in respiratory distress. Blisters later formed on Plaintiff Frazier's neck and his skin started to peel off. Plaintiff Frazier had second-degree chemical bums on his neck and around his left ear.
86. In order to cover up the unjustified use of force, Defendant Reynolds wrote a Use of Force Report that stated Plaintiff Frazier was "being loud and disruptive by yelling and kicking on his cell door" and that "he was ordered numerous times to cease his disruptive conduct, but to no avail." He also stated that he used only three I-second bursts of both pepper spray and tear gas.
87. The Use of Force Report written by Defendant Reynolds is false. 88. Plaintiff Frazier's disciplinary report for disorderly conduct, written to further conceal the Defendants' unjustified use of force, was overturned on appeal. 89. On January 11,2001, Defendants Reeder and Lampp sprayed Plaintiff Frazier with chemical agents in retaliation for the grievances he filed about the previous week's use of
14

force. Plaintiff Frazier received no warnings from Defendants before they sprayed chemical agents into his cell.
90. The chemical agents aggravated the burns on Plaintiff Frazier's neck and also burned his forearms.
91. Defendants Reeder and Lampp were aware that the use of force on Plaintiff Frazier was not necessary to maintain or restore order because Plaintiff Frazier was quiet and locked in his cell.
92. Defendant Reeder wrote a Use of Force Report stating that he "observed Inmate Frazier beating on his cell door, and [sic] was refusing all verbal orders from me to cease his disorderly conduct or chemical agents would be administered." He also stated that he sprayed only three I-second bursts of pepper spray.
93. This was a false report written to cover up the unjustified and excessive use of force against Plaintiff Frazier.
94. Plaintiff Frazier received a disciplinary report for disorderly conduct but it was overturned on appeal.
95. Plaintiff Frazier has exhausted all available administrative remedies regarding the matters described herein. He filed grievances about both incidents all the way to the Secretary's office, explaining that in each case the use of chemical agents was unjustified. He received the same responses back on both sets of grievances, each stating that his request for action was denied because the Office of the Inspector General was conducting a review. Plaintiff Frazier was never notified about the outcome of the Inspector General's
15

investigations. Curt Massie
96. Plaintiff Curt Massie is a prisoner in the custody of the Florida Department of Corrections. At all times material to the Complaint he was housed at Florida State Prison.
97. Plaintiff Massie is a 41-year-old man diagnosed with Obsessive Compulsive Disorder and Delusional Disorder. At all times material to the Complaint he was taking psychotropic medication to treat his mental illness.
98. On October 8,2000, Defendants Green and Halle used chemical agents on Plaintiff Massie to punish him for making a funny face behind a nurse's back.
99. Defendants Green and Halle failed to issue any warnings or orders to Plaintiff Massie before emptying cans of pepper spray and CS tear gas into his locked cell.
100. To justify the use of chemical agents, Defendant Green wrote a Use of Force Report stating that force was used because Plaintiff Massie had cursed at staff, screamed threats, and refused several orders to stop. He also stated that he used only three I-second bursts of both pepper spray and tear gas.
101. The Use of Force Report written by Defendant Green falsely states the reasons for the use of force and the amount of chemical agents used on Plaintiff Massie.
102. Defendant Clark authorized this use of force with full knowledge that it was unjustified.
103. When Plaintiff Massie was taken to the shower, Defendant Green turned the hot water on to intensify the pain Plaintiff Massie was experiencing from the chemical agents.
16

104. Defendants failed to give Plaintiff Massie clean sheets for several hours and he was never issued a clean blanket.
105. Plaintiff Massie suffered second-degree chemical bums that caused large fluid-filled blisters and inflamed skin on his left arm, left leg, back and hip. The blisters on Plaintiff Massie's skin later burst, leaving raw exposed skin.
106. Plaintiff Massie still experiences pain and burning when his skin is exposed to direct sunlight.
107. Despite Plaintiff Massie's extreme reaction to chemical agents, Defendants Clark, Green, and Halle again authorized and used these weapons on him on September 23, 2001.
108. In order to avoid creating a record that would allow meaningful review of the use of chemical agents against Plaintiff Massie, Defendants Clark, Green, and Halle failed to videotape either of the incidents when chemical agents were used against him, even though these were not spontaneous uses of force and there was ample time to obtain a video camera.
109. Plaintiff Massie has exhausted all available administrative remedies regarding the matters described herein. In his grievance appeal to the DOC Central Office he explained that Defendant Green used force against him vindictively and excessively. The response from Central Office states that the DOC Inspector General's office was reviewing the subject of his grievance and that his request for action was denied.
110. After an investigation, the DOC Inspector General's office approved this use of force on March 27,2001, despite the inspectors' knowledge that the use of force against
17

Plaintiff Massie was in response to past behavior and not in response to ongoing disorderly conduct.
Jeremiah Thomas 111. Plaintiff Jeremiah Thomas is a prisoner in the custody of the Florida Department of Corrections. At all times material to the Complaint he was housed at Florida State Prison. 112. Plaintiff Thomas is a 31-year-old man with an extensive history of psychiatric problems. He suffers from Schizoaffective Disorder, which causes him to experience auditory hallucinations and bouts of mania during which he does not sleep for days and makes rhythmic noises by talking to himself or banging on his cell walls and door. Since his incarceration in 1991, he has been civilly committed to the Correctional Mental Health Institution several times, frequently admitted for in-patient mental health treatment, and is currently housed in the in-patient Transitional Care Unit at Union Correctional Institution. 113. Plaintiff Thomas has been diagnosed with asthma, a medical condition that causes inflammation of the lungs and reduced breathing capacity. 114. On September 20, 2000, at approximately 11 :20 a.m., Mr. Thomas cut and mutilated his forearm. He was seen by mental health staff and he asked for help. 115. On September 20,2000, at approximately 3:00 p.m., mental health staff counseled Mr. Thomas regarding his refusal to take his psychotropic medication the previous evening. 116. On September 20, 2000, Defendant Musselman sprayed a large quantity of
18

pepper spray into Plaintiff Thomas's cell without first issuing any orders or warnings. This force was used at the direction of Defendant Anderson and with the authorization of Defendant Clark.
117. In order to cover up the excessive quantity of chemical agents he used, Defendant Musselman wrote a report stating that he used only three I-second bursts of chemical spray. This statement is false.
118. The next day, September 21,2000, Mr. Thomas was in his cell when Defendant Wilson sprayed a large amount of pepper spray into Plaintiff Thomas' cell without warning. This was at the direction of Defendant Muse and with the authorization of Defendant Clark.
119. In his Use of Force report Defendant Wilson falsely stated that he used only three I-second bursts of spray. This is a false statement designed to cover up the grossly excessive quantities of chemical agents used.
120. Two days later, September 23,2000, Plaintiff Thomas was in his cell when Defendant Wilson failed to issue any warnings or orders to Plaintiff Thomas before spraying him with both pepper spray and tear gas. This force was used at the direction of Defendant Halle and with the authorization of Defendant Clark.
121. Again, Defendant Wilson wrote a false Use of Force Report stating that he had used only three I-second bursts of both pepper spray and CN tear gas to cover up the fact that he used great quantities of chemical agents that soaked Plaintiff Thomas's entire body.
122. The next day, on September 24,2000, Defendant Tricocci sprayed Plaintiff 19

Thomas with chemical agents without first issuing any orders or warnings. This force was used at the direction of Defendant Chastain and with the authorization of Defendant Clark. This was the fourth time in five days that Defendant Clark authorized the use of force against Plaintiff Thomas.
123. In his Use of Force Report, Defendant Tricocci falsely stated that he used only three I-second bursts of spray on Plaintiff Thomas.
124. During this time Plaintiff Thomas was experiencing an acute psychiatric breakdown and was in need of mental health care. During the post-use of force exam conducted by a nurse at approximately 3:00 p.m., Mr. Thomas exhibited disturbing signs of psychosis. The nurse noted that Mr. Thomas told her that he played professional football with the Dolphins in Philadelphia. She also noted that Mr. Thomas smelled like urine.
125. Plaintiff Thomas was severely burned by the excessive amount of chemical agents used on September 20,21,23 and 24,2000. He had painful blisters and open wounds on his ear and neck, abdomen, left arm, upper back and lower right leg.
126. In addition to the intense burning sensation and second-degree bums, each time they sprayed Mr. Thomas he could barely breathe and was left taking little gasps of air for days afterward. He felt like he was going to die and he frequently wept from the pain.
127. On September 25,2000, Defendant Sapp, at that time the Assistant Warden at FSP, reviewed and approved the uses of force on Plaintiff Thomas from September 20,21,23 and 24,2000. After reviewing these reports, he was aware that Plaintiff Thomas was having symptoms of psychosis and mania and that he had blisters and bums all over his body.
20

Despite this knowledge, he took no action to prevent the further use of force against Plaintiff Thomas or to ensure that he received proper mental health treatment.
128. On September 25,2000, Plaintiff Thomas was in his cell when Defendant Barnett sprayed Plaintiff Thomas with chemical agents three separate times without ever issuing any orders or warnings. This force was used at the direction of Defendant Chastain and with the authorization of Defendant Whitehurst.
129. Defendant Barnett falsified his Use of Force Report to cover up for the grossly excessive quantities of pepper spray, CN tear gas, and CS tear gas he used on Plaintiff Thomas.
130. The following day, September 26, 2000, Defendant Barton sprayed a large amount of pepper spray into Plaintiff Thomas' cell. No orders or warnings were issued beforehand. This force was used at the direction of Defendant Lampp and with the authorization of Defendant Whitehurst.
131. Defendant Barton wrote a Use of Force Report that falsely stated that he used only three I-second bursts of chemical spray on Plaintiff Thomas.
132. Each ofthe Defendants on the security staff who were involved in using or authorizing the use of chemical agents against Plaintiff Thomas on September 20, 21, 23, 24, 25 and 26, 2000, including Defendants Musselman, Anderson, Clark, Wilson, Muse, Halle, Tricocci, Chastain, Barnett, Barton, Lampp, and Whitehurst, were aware that Plaintiff Thomas was exhibiting signs of psychosis and was in need of mental health care.
133. On September 27,2000, Mr. Thomas was evaluated in the medical clinic and 21

admitted to the infirmary for treatment for his chemical bums. He was also placed on psychiatric observation due to his psychotic and manic behavior. Medical notes indicate that he exhibited multiple signs of psychiatric decompensation, including severe psychomotor agitation, loud and pressured speech, extreme and unpredictable mood swings, disorganized thinking and memory impairment.
134. On September 29,2000, Plaintiff Thomas was transferred to the Crisis Stabilization Unit at Union Correctional Institution for intensive mental health treatment. As a measure of his extreme psychotic breakdown, he told his doctors there that his injuries were from assaults by other inmates.
135. It took over six months for Mr. Thomas' mental condition to stabilize after the repeated and unjustified use of force against him in lieu of proper mental health treatment. Plaintiff Thomas has remained in an in-patient mental health care unit for over two years.
136. Plaintiff Thomas is afraid that he will be sprayed again with chemical agents when he is returned to a Close Management unit.
137. In order to avoid creating a record that would allow meaningful review of the use of chemical agents against Plaintiff Thomas, Defendants repeatedly failed to videotape the use of chemical agents against him, even though these were not spontaneous uses of force and there was ample time to obtain a video camera.
138. Each use of chemical agents against Plaintiff Thomas was approved without a proper investigation.
139. Plaintiff Thomas has exhausted all available administrative remedies regarding 22

the matters described herein. Eueene Ulrath
140. Plaintiff Eugene Ulrath is a prisoner in the custody of the Florida Department of Corrections. At all times material to the Complaint he was incarcerated at Florida State Prison.
14l. PlaintiffUlrath was transferred to Florida State Prison on October 8, 2002. At that time he was classified as an S-3, the most serious outpatient psychiatric classification, assigned to inmates with very acute mental health needs.
142. The same day he arrived, October 8,2002, PlaintiffUlrath sought mental health care by declaring a psychological emergency to several members of the security staff and to two different nurses on the wing. Every single one of his requests was ignored.
143. A few hours after his last attempt to declare a psychological emergency, PlaintiffUlrath was lying quietly in his cell when Defendant Shipley repeatedly sprayed PlaintiffUlrath with pepper spray and tear gas under the supervision of Defendant Ellis and with the authorization of Defendant Jarvis.
144. The Defendants gave no warnings or orders to PlaintiffUlrath before using chemical agents against him.
145. Defendant Shipley authored a Use of Force Report alleging that PlaintiffUlrath was sprayed because he was causing a disturbance on the wing by kicking his cell door and encouraging other inmates to do the same. He further stated that he only used a total of six one-second bursts of pepper spray and three one-second bursts of tear gas.
23

146. The Use of Force report is a false statement ofPlaintiffUlrath's conduct and of the amount of gas used.
147. The next day, October 9,2002, PlaintiffUlrath was again quiet in his cell when Defendant Lindsey, under the supervision of Defendant Lampp and with the authorization of Defendant Jarvis, sprayed him with chemical agents without warning.
148. In an effort to cover up this malicious use of force, Defendant Lindsey wrote a Use of Force Report that stated PlaintiffUlrath was kicking on his cell door and refusing all orders to stop. He also stated that he only used a total of six one-second bursts of pepper spray and three one-second bursts of tear gas.
149. This Use of Force Report is completely false and is designed to conceal Defendants Lindsey, Lampp, and Jarvis' vindictive use of force on PlaintiffUlrath because they knew he was having psychological problems.
150. On October 10,2002, PlaintiffUlrath attempted to commit suicide by hanging himself with his bed sheet. He was placed in a special suicide observation cell and then transferred to inpatient mental health unit at Union Correctional Institution. PlaintiffUlrath continues to require inpatient psychiatric treatment.
151. As a result of being exposed to an excessive quantity of chemical agents, PlaintiffUlrath suffered chemical bums and developed large blisters on his back, buttock and leg.
152. PlaintiffUlrath has exhausted his administrative remedies. He filed a formal grievance on December 5, 2002, explaining that he was sprayed without warning while lying
24

quietly in his cell. The response stated that his allegations had been referred to the Inspector General's office for review and to that extent he could consider his grievance approved. His appeal to Defendant Crosby's office was denied. PlaintiffUlrath was never informed of the outcome ofthe Inspector General's review.
Re~inald Williams 153. Reginald Williams is a prisoner in the custody ofthe Florida Department of Corrections. At all times material to the Complaint he was incarcerated at Florida State Prison. 154. On October 24,2001, Defendants Rizer, Reynolds and Riggs sprayed Plaintiff Williams with chemical agents while he was quiet in his cell solely in retaliation for litigation he had filed against prison officials. 155. Defendant Lazenby authorized the use of chemical agents against Plaintiff Williams without properly determining if the use of force was necessary. 156. Defendant Rizer sprayed the chemical agents directly into Plaintiff Williams' face, immediately blinding him and causing intense pain and burning. He could not rinse his eyes because Defendants continued to spray more chemical agents into the cell. 157. When Plaintiff Williams was finally allowed to shower, the Defendants intentionally turned on very hot water, intensifying the burning and pain on his skin and in his eyes. 158. Defendant Rizer wrote a Use of Force Report alleging that chemical agents were used because Plaintiff Williams was being disorderly and causing a disturbance on the
25

wmg. He also stated that he only used a total of six one-second bursts of pepper spray. 159. This report is pretextual, false, and written to cover up Defendant Rizer's
unjustified and excessive use of chemical agents on Plaintiff Williams. 160. As a result of having chemical agents sprayed directly into his eyes, the vision
in Plaintiff Williams' right eye has been permanently damaged and he now must wear glasses to see clearly.
161. Plaintiff Williams has exhausted all available administrative remedies regarding the use of chemical agents against him on October 24, 2001.
CAUSE OF ACTION: EIGHTH AMENDMENT VIOLATIONS 162. Plaintiffs repeat and reallege paragraphs 1 through 161 as if fully set forth herein. 163. Plaintiff Butler's right to be free from cruel and unusual punishment, which is guaranteed by the Eighth Amendment, was violated by Defendants Reeder, Chastain and Clark when they knowingly and willfully used, directed or authorized the use of chemical agents against Plaintiff Butler maliciously and sadistically for the very purpose of causing harm and not in a good faith effort to maintain or restore discipline. 164. As a result of Defendants Reeder, Chastain, Clark, Crosby, Redd, and Sapp's unconstitutional actions, Plaintiff Butler suffered second-degree chemical burns, pain and suffering, respiratory distress, mental and emotional distress, humiliation and degradation. 165. Plaintiff Frazier's right to be free from cruel and unusual punishment, which is guaranteed by the Eighth Amendment, was violated by Defendants Reynolds, Reeder, Riggs,
26

and Lampp when they knowingly and willfully used, directed or authorized the use of chemical agents against PlaintiffFrazier maliciously and sadistically for the very purpose of causing harm and not in a good faith effort to maintain or restore discipline.
166. As a result of Defendants Reynolds, Rizer, Riggs, Crosby, Redd, and Sapp's unconstitutional actions, Plaintiff Frazier suffered second-degree chemical bums, inflammation of the skin on his arms, pain and suffering, mental and emotional distress, humiliation and degradation.
167. Plaintiff Massie's right to be free from cruel and unusual punishment, which is guaranteed by the Eighth Amendment, was violated by Defendants Green, Halle and Clark when they knowingly and willfully used, directed or authorized the use of chemical agents against Plaintiff Massie maliciously and sadistically for the very purpose of causing harm and not in a good faith effort to maintain or restore discipline.
168. As a result of Defendants Green, Clark, Crosby, Redd, and Sapp's unconstitutional actions, Plaintiff Massie suffered second-degree chemical bums over a large portion of his body, increased anxiety related to his mental illness, pain and suffering, mental and emotional distress, humiliation and degradation.
169. Plaintiff Thomas's right to be free from cruel and unusual punishment, which is guaranteed by the Eighth Amendment, was violated by Defendants Musselman, Wilson, Tricocci, Barnett, Barton, Anderson, Muse, Chastain, Lampp, and Clark when they knowingly and willfully used, directed or authorized the use of chemical agents against Plaintiff Thomas maliciously and sadistically for the very purpose of causing harm and not in a good faith effort
27

to maintain or restore discipline. 170. Plaintiff Thomas's right to be free from cruel and unusual punishment, which is
guaranteed by the Eighth Amendment, was violated by Defendant Sapp when, with knowledge of Plaintiff Thomas's injuries and psychotic state, he acted with deliberate indifference to the substantial risk that Plaintiff Thomas would continue to be abused with chemical agents.
171. As a result of Defendants Musselman, Anderson, Clark, Wilson, Muse, Halle, Tricocci, Chastain, Barnett, Barton, Lampp, Whitehurst, Crosby, Redd, and Sapp's unconstitutional actions, Plaintiff Thomas suffered second-degree chemical bums over a large portion of his body, respiratory distress, increased anxiety related to his mental illness, pain and suffering, mental and emotional distress, humiliation and degradation.
172. PlaintiffUlrath's right to be free from cruel and unusual punishment, which is guaranteed by the Eighth Amendment, was violated by Defendants Shipley, Ellis, Lindsey, Lampp and Jarvis when they knowingly and willfully used, directed or authorized the use of chemical agents against PlaintiffUlrath maliciously and sadistically for the very purpose of causing harm and not in a good faith effort to maintain or restore discipline.
173. As a result of Defendants Lindsey, Shipley, Ellis, Jarvis, Crosby, Carter, Sapp, Sirmones, and Lazenby Jr's unconstitutional actions, PlaintiffUlrath suffered chemical bums over a large portion of his body, increased anxiety related to his mental illness, pain and suffering, mental and emotional distress, humiliation and degradation.
174. Plaintiff Williams' right to be free from cruel and unusual punishment, which is
28

guaranteed by the Eighth Amendment, was violated by Defendants Rizer, Reynolds, Riggs and Lazenby when they knowingly and willfully used, directed or authorized the use of chemical agents against Plaintiff Williams maliciously and sadistically for the very purpose of causing hann and not in a good faith effort to maintain or restore discipline.
175. As a result of Defendants Reynolds, Crosby, Carter, Sapp, Sinnones, and Lazenby unconstitutional actions, Plaintiff Williams suffered pennanent damage to his right eye, pain and suffering, mental and emotional distress, humiliation and degradation.
176. The excessive and unjustified use of chemical agents against Plaintiffs Butler, Frazier, Massie, Thomas, Williams and Ulrath is part of a pattern of hundreds of improper uses of force against Florida State Prison inmates.
177. The pattern and practice of using chemical agents solely to inflict physical pain and injury on Florida State Prison inmates began in 1999 under the supervision of Defendant Crosby and continued under his successor, Defendant Carter.
178. On information and belief, Defendants Crosby, Carter, Sapp, Sirmones and Lazenby, Redd, Clark and Jarvis failed to take any corrective action to halt the widespread and obvious abuse with full knowledge that their subordinates were repeatedly using chemical agents maliciously and sadistically for the very purpose of causing harm and not in a goodfaith effort to maintain or restore discipline. Their failure to act resulted in the use of unjustified and excessive force against Plaintiffs Butler, Frazier, Massie, Thomas, Williams and Ulrath.
179. On information and belief, Defendants Crosby, Carter, Sapp, Sirmones,
29

Lazenby, Redd, Clark and Jarvis, by implementing the policies and customs discussed in paragraphs 47 to 66, facilitated and encouraged their subordinates to use chemical agents maliciously and sadistically for the very purpose of causing harm and not in a good-faith effort to restore order or maintain discipline or for any other legitimate penological reason.
180. On information and belief, Defendants Crosby, Carter, Sapp, Sirmones, Lazenby, Redd, Clark and Jarvis acted with deliberate indifference to the substantial and obvious risk that their subordinates would use chemical agents maliciously or sadistically for the very purpose of causing harm and not in a good-faith effort to restore order or maintain discipline or for any other legitimate penological reason.
181. By their knowing failure to stop the widespread abuse, and by implementing policies and customs that encouraged and facilitated the use of chemical agents maliciously or sadistically for the very purpose of causing harm and not in a good-faith effort to restore order or maintain discipline or for any other legitimate penological reason, Defendants Crosby, Carter, Sapp, Sirmones, Lazenby, Redd, Clark, and Jarvis violated the rights of Plaintiffs to be free from cruel and unusual punishment as guaranteed by the Eighth Amendment, made applicable to the States by the Fourteenth Amendment, ofthe Constitution ofthe United States.
182. WHEREFORE, on this count Plaintiffs request this Court grant the following relief:
A. Plaintiff Butler seeks compensatory and punitive damages from Defendants Reeder, Chastain, Clark, Crosby, Redd, and Sapp.
30

B. Plaintiff Frazier seeks compensatory and punitive damages from Defendants Reynolds, Rizer, Riggs, Crosby, Redd, and Sapp.
C. Plaintiff Massie seeks compensatory and punitive damages from Defendants Green, Clark, Crosby, Redd, and Sapp.
D. Plaintiff Thomas seeks compensatory and punitive damages from Musselman, Anderson, Clark, Wilson, Muse, Halle, Tricocci, Chastain, Barnett, Barton, Lampp, Whitehurst, Crosby, Redd, and Sapp.
E. Plaintiff Ulrath seeks compensatory and punitive damages from Defendants Lindsey, Shipley, Ellis, Jarvis, Crosby, Carter, Sapp, Sirmones, and Lazenby.
F. Plaintiff Williams seeks compensatory and punitive damages from Defendants Reynolds, Crosby, Carter, Sapp, Sirmones, and Lazenby.
G. All Plaintiffs seek attorneys' fees and costs, pursuant to 42 US.c. § 1988.
H. All Plaintiffs seek any other relief as the Court may deem proper.
31

Respectfully submitted,
Lisa White Shirley, Esq. Florida Bar No. 478725 lwsfils@bellsouth.net
Cassandra J. Capobianco, Esq. Florida Bar No. 614734 cicfils@bellsouth.net
Kristen Cooley Lentz, Esq. Florida Bar No. kmcfils@bellsouth.net Florida Bar No. 649635
Christopher M. Jones, Esq. Florida Bar No. 994642 cmj fils@bellsouth.net
Florida Institutional Legal Services 1010-B NW 8th Avenue Gainesville, Florida 32601 352-264-1569 352-271-4366 (Fax)
and
Peter M. Siegel, Esq. Florida Bar No. 227862 pmsiegel@bellsouth.net
Randall C. Berg, Esq. Florida Bar No. 318371 rcberg@bellsouth.net
Cullin O'Brien, Esq. Florida Bar No. 597341 cullinobrien@bellsouth.net
Florida Justice Institute, Inc. 2870 First Union Financial Center
32

200 South Biscayne Boulevard Miami, Florida 33131-2310 305-358-2081 305-358-0910 (Fax) Attorneys for Plaintiffs
~~~Co
By: Cassandra J. Cap lanco Fla. BarNo. 614734
33

 
 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA JACKSONVILLE DIVISION

SYLVESTER BUTLER, et al.,

Plaintiffs, vs.

Case No. 3:04-cv-917-J-32MMH

JAMES V. CROSBY, JR., et al.,

Defendants.

ORDER This case came before the Court on Defendants’ Motion to Stay/Abate (Doc. #70), filed March 1, 2005. Plaintiffs filed a Response (Doc. #71) on March 8, 2005. On April 7, 2005, the Court conducted a telephonic hearing, the record of which is incorporated by reference. While the undersigned has continuing concerns about allowing this matter to proceed in tandem with the Brown action, there does appear to be authority which would permit it. Therefore, at least for now, the Court will allow it. It is ORDERED: Defendants’ Motion to Stay/Abate (Doc. #70) is DENIED without prejudice to renewal if circumstances dictate. A Case Management and Scheduling Order will issue separately. DONE AND ORDERED at Jacksonville, Florida this 14th day of April, 2005.

d. Copies: All parties and counsel of record

 
 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA JACKSONVILLE DIVISION

SYLVESTER BUTLER, et al.,
Plaintiffs, vs.
JAMES V. CROSBY, etc., et al.,
Defendants.

Case No. 3:04-cv-917-J-32MMH

ORDER This case is before the Court on plaintiff Kelvin Frazier’s pro se Motion for Preliminary Injunction (Doc. 150) and accompanying declaration (Doc. 151). Pursuant to Local Rule 2.03(d), a party represented by counsel is not permitted to submit pleadings pro se. Here, Mr. Frazier is represented by multiple lawyers who, according to Mr. Frazier, are aware of the allegations contained in his motion and declaration, and the Court will therefore deny the motion without prejudice to refiling by counsel if deemed appropriate. However, given the serious nature of the allegations contained in the motion and accompanying declaration, the Court directs counsel for defendants to forthwith deliver a copy of this Order and Mr. Frazier’s motion and accompanying declaration to the warden of Santa Rosa Correctional Institute to ensure that he is aware of the allegations and conducts any appropriate investigation. The Clerk is also instructed to send a copy of this Order directly to plaintiff Kelvin Frazier.

DONE AND ORDERED at Jacksonville, Florida this 3rd day of March, 2006.
s. Copies: counsel of record Kelvin Frazier
2

 
 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA JACKSONVILLE DIVISION

SYLVESTER BUTLER, et al.,

Plaintiffs, vs.

Case No. 3:04-cv-917-32-MMH

JAMES MCDONOUGH, et al.,

Defendants.

ORDER1 This case is before the Court on pending motions. The Court heard argument on June 1, 2006 and incorporates that discussion herein. It is hereby ORDERED: 1. Defendants’ Motion to Dismiss Second Amended Complaint (Doc. 153) and Defendants McDonough and Bryant’s Amended Motion to Dismiss Certain Plaintiffs’ Second Amended Complaint for Mootness and Lack of Standing (Doc. 185) are DENIED. See e.g., 31 Foster Children v. Bush, 329 F.3d 1255, 1263 (11th Cir. 2003). 2. Defendant James Wilson’s Motion to Dismiss Plaintiffs’ Second Amended Complaint (Doc. 145) is DENIED. 3. Any Defendant who has not answered or who has filed an incomplete answer to the Second Amended Complaint, must answer by July 14, 2006.

1Under the E-Government Act of 2002, this is a written opinion and therefore is available electronically. However, it has been entered only to decide the motion or matter addressed herein and is not intended for official publication or to serve as precedent.

4. As discussed at the hearing, an amended Case Management and Scheduling Order will issue shortly.
DONE AND ORDERED at Jacksonville, Florida this 8th day of June, 2006.
d. Copies: counsel of record
2

 
 United States District Court, M.D. Florida.
Sylvester BUTLER, et al., Plaintiffs, v.
James V. CROSBY, et al., Defendants. No. 3:04CV917-J-32MMH.
filed Sept. 20, 2004. June 24, 2005.
last filing April 21, 2006.
Kevin Anthony Blazs, Gobelman, Love, Gavin, Blazs & Wasilenko, Jacksonville, FL, Lead Attorney, Attorney to be Noticed, for James V. Crosby, Jr., (Defendant).
J. Dixon Bridgers, III, Vernis & Bowling of North Florida, P.A., Jacksonville, FL, Lead Attorney, Attorney to be Noticed, for Billy Jarvis, (Defendant).
F. Damon Kitchen, Constangy, Brooks & Smith, LLC, Jacksonville, FL, Lead Attorney, Attorney to be Noticed, for James Wilson, (Defendant).
William Peter Martin, Dennis, Jackson, Martin & Fontela, P.A., Tallahassee, FL, Lead Attorney, Attorney to be Noticed, for James McDonough, (Defendant).
J. Ray Poole, Jr., Constangy, Brooks & Smith, LLC, Jacksonville, FL, Attorney to be Noticed, for James Wilson, (Defendant).
Kathlcen M. Savor, Office of the Attorney General (Ft.Lauderdale/Cr.Appl), Criminal Appellate Division, Ft. Lauderdale, FL, Lead Attorney, Attorney to be Noticed, for Allen Clark, (Defendant).
Lisa White Shirley, Baron & Budd, P.C., Dallas, TX, Lead Attorney, Attorney to be Noticed, for Antonio Ward, (Plaintiff).
Ronald S. Wasilenko, Gobelman, Love, Gavin, Blazs & Wasilenko, Jacksonville, FL, Lead Attorney, Attorney to be Noticed, for James V. Crosby, Jr., (Defendant).
ORDER
HOWARD, Magistrate J.

*1 THIS CAUSE is before the Court on Plaintiffs' Verified Motion for Award of Costs Relating to Defendants' Failure to Waive Formal Service of Process and Attorneys' Fees (Doc. No. 86; Motion) filed May 6, 2005. In support of the Motion, Plaintiffs have filed Plaintiffs' Composite Exhibit “A” (Doc. No. 90; Exhibit). Defendants object to the relief sought by Plaintiffs and have raised a number of arguments in opposition to the Motion. See Defendants' Response in Opposition (Doc. No. 93; Response). After reviewing the Response, Plaintiffs sought and obtained leave of Court to file a reply brief addressing Defendants' arguments. See Order (Doc. No. 99); Plaintiffs' Reply in Support (Doc No. 97; Reply). The matter is now ripe for resolution.
In the Motion, Plaintiffs seek an award of costs incurred in effecting service of process on certain Defendants who failed to comply with a request to waive personal service in accordance with Rule 4 of the Federal Rules of Civil Procedure (Rule(s)).See Motion at 4. In support of their request, Plaintiffs allege that 1) they “complied fully with subsections (A) through (F)” of Rule 4(d)(1),FN1 2) 22 Defendants FN2 failed to comply with the requests for waiver of formal service, 3) Plaintiffs' incurred costs in effecting formal service after giving Defendants thirty days to return the waivers, and 4) Rule 4 entitles Plaintiffs to recover the costs relating to personal service of the 22 non-waiving Defendants as well as any attorneys' fees incurred in the preparation of the Motion. See Motion at 2, 3, 4. Specifically, Plaintiffs seek $250.25 for an investigator to discover the home address of each Defendant, $1,652.53 for service of process, and $1,828.00 for attorneys' fees relating to preparing the Motion. See Motion at 4.
FN1.See Motion at 2. Plaintiffs refer the Court to Rule 4(d)(1), but that Rule regards a defendant's right to challenge venue or jurisdiction at a later time. SeeRule 4(d)(1).Rule 4(d)(2) lays out the requirements for the notice and waiver with which a plaintiff must comply to trigger operation of the cost-shifting provision contained in the last sentence of that Rule. SeeRule 4(d)(2). This Court presumes Plaintiffs mean to say they complied with Rule 4(d)(2), not Rule 4(d)(1). Defendants have not suggested that Plaintiffs failed to

comply with any requirement of Rule 4(d)(2).
FN2. The 22 include James Crosby, Bradley Carter, George Sapp, Stephen Sirmones, Allen Clark, Mark Redd, Keith Musselman, Tony Anderson, William Muse, Colin Halle, Steven Tricocci, Tim Chastain, Rodney Barnett, Ronnie Barton, Kenneth Lampp, Wendell Whitehurst, Stacey Green, John Riggs, Glynn Reeder, Oscar Shipley, Dean Ellis, and Jeffrey Lindsey. Plaintiffs refer to these 22 as the “nonwaiving” Defendants. See Motion at 2.
In the Response, Defendants raise several objections. First, Defendants argue the Motion is “premature” and would be more appropriately raised after rendering of final judgment. See Response at 2 (quoting Local Rule 4.18 of the Middle District of Florida). Second, they challenge as unreasonable Plaintiffs' demands for waiver and suggest that Plaintiffs unnecessarily spent time and money on personal service when they allegedly knew that Defendants were working to return the waivers.FN3Seeid.Third, they assert Plaintiffs did not provide enough documentary evidence regarding the reasonableness of time spent and rate billed for preparation of the Motion; and finally, they claim the Motion is insufficiently specific as to how each Defendant should bear Plaintiffs' costs. Seeid. at 3-4.
FN3. To support their assertions, Defendants refer to an affidavit made by Susan Maher, General Counsel for the Department of Corrections (DOC). According to Ms. Maher, DOC's policy discourages employees from signing waivers when they are sued for activities arising out of their jobs. Response, Affidavit at [unnumbered] 2. Also, Maher states that those who accepted substitute service for DOC employees contravened DOC policy and accepted service without authorization. Seeid. at [unnumbered] 4. DOC policy, whatever it may be, does not alter the requirements of the Rules.
Plaintiffs address Defendants' objections in the Reply. They contend first that Local Rule 4.18 draws its authority from Rule 54, which “does not apply

where another federal rule of civil procedure[, like Rule 4(d),] provides for an award of costs or fees”. Reply at 3. Next, they argue that they did not act unreasonably in commencing formal service after they gave Defendants thirty days to return the waivers and received communications indicating that Defendants would not waive formal service. Seeid. at 4. They further contend the attorneys' fees relating to the preparation of the Motion are reasonable, providing the sworn testimony of Attorney Michael Dewberry in support of that assertion. Seeid. at 7. Finally, they deny that the Motion lacks specificity as to the costs associated with each Defendant and assert that the invoices provided identify which costs relate to which non-waiving Defendant. Seeid. at 8. Plaintiffs also propose an even division of $83.09 for attorneys' fees for each non-waiving Defendant. Seeid.
DISCUSSION
*2 In the Motion, Plaintiffs invoke operation of Rule 4(d), which states:
[a]n individual ... subject to service under subdivision (e), (f), or (h) ... has a duty to avoid unnecessary costs of serving the summons. To avoid costs, the plaintiffs may notify such a defendant of the commencement of the action and request that the defendant waive service of a summons.... If a defendant located within the United States fails to comply with a request for waiver made by a plaintiff located within the United States, the court shall impose the costs subsequently incurred in effecting service on the defendant unless good cause for the failure be shown.
Rule 4(d)(2). Defendants do not challenge that they were subject to service under Rule 4. They do not challenge that Plaintiff incurred the costs detailed in Exhibits “C” through “E” of the Motion or that Plaintiffs complied with subdivisions (A) through (G) of Rule 4. Indeed, based on the Court's review of Composite Exhibit “A”, it appears that Plaintiffs requested that Defendants waive service in accordance with Rule 4, thereby subjecting Defendants to the duty to avoid unnecessary costs of formal service. Defendants' failure to tend to this duty triggers application of the cost-shifting provision of the Rule. SeeRule 4(d)(2).

Rule 4 mandates that the Court tax the cost of formal service against Defendants if they failed to waive formal service without “good cause.” FN4Id. The record adequately establishes that the non-waiving Defendants did not comply with Plaintiffs' requests to waive formal service and that Plaintiffs incurred the cost of effecting service of process and attorneys' fees for preparing the Motion. Thus, the Court must determine whether Defendants have shown good cause for their failure.
FN4. Further, Rule 4(d)(5) provides that costs imposed on defendants under Rule 4(d)(2)“shall include the costs subsequently incurred in effecting service ..., together with the costs, including a reasonable attorney's fee, of any motion required to collect the costs of service.”Rule 4(d)(5).
As a term, “good cause” does not carry a fixed definition; instead, it takes on different meanings in different contexts. When invoked by a federal rule of civil procedure, good cause will depend on the context of that rule. See,e.g., Parsons v. General Motors Corp., 85 F.R.D. 724, 726 (D.C.Ga.1980) (court interpreting good cause within the context of a discovery rule); Georgia Television Co. v. TV News Clips of Atlanta, Inc., 718 F.Supp. 939, 953 (N.D.Ga.1989). The 1993 Advisory Committee on the Federal Rules of Civil Procedure provided some discussion of “good cause” within the context of Rule 4(d), suggesting two instances of its existence: when “a defendant did not receive the request or was insufficiently literate in English to understand it.”Fed.R.Civ.P. 41993 advisory committee's note. While a defendant should be given a chance to show good cause, the advisory committee cautions that a finding of “sufficient cause should be rare.” Id. Else, defendants might frustrate too easily the purpose of the Rule and unnecessarily drive up the costs of litigation. See Wright and Miller, Federal Practice and Procedure: Civil 3d § 1092.1 (2002) (noting also that “objecting that ‘the claim is unjust’ or that ‘the court lacks jurisdiction’ is not good cause within the meaning of the rule”). Still, a finding of good cause is a matter of judicial discretion, and will be made given the proper circumstances. See generally Southern Ry. Co. v. Landham, 403 F.2d 119, 126 (11th Cir.1968); U.S. v. Wright Motor Co., Inc., 536 F.2d 1090, 1093 (11th Cir.1976).

*3 Courts examining failures to waive service have provided additional guidance regarding the types of circumstances that might justify a finding of good cause. For example, where defendants receive insufficient notice of the action because of plaintiffs' failure to comply properly with Rule 4(d)(2), courts find good cause for defendants' failure to return waivers. See Spivey v. Bd. of Church Extension and Home Mission of Church of God, 160 F.R.D. 660, 663 (M.D.Fla.1995) (good cause for defendant's failure to return waiver when plaintiff did not address notice to defendant directly, as per Rule 4(d)(2)(A), even though defendant probably knew that it was intended for him); Dymits v. American Brands, Inc ., 1996 WL 751111, *14 (N.D.Cal.1996) (good cause when plaintiffs gave defendants only six days after receipt of waiver before serving him personally, rather than the thirty days required by Rule 4(d)(2)(F)); Steinberg v. Quintet Publ'g. Ltd. et al., 1999 WL 459809, *2 (S.D.N.Y. June 29, 1999) (good cause shown in demonstrating that plaintiffs failed to meet the requirements in Rule 4(2)( A)); Leung v. SHK Mgmt., Inc., 1999 WL 972008, *1-*2 (E.D.Pa. Oct. 20, 1999) (motion for award denied because plaintiff failed to show that the notice and waiver accorded with 4(d)(2)); Farrell v. Woodham, 2002 WL 32107644, *5 (M.D.Fla. May 29, 2002) (no award because plaintiff did not comply with the technical requirements of Rule 4(d)(2)). Additionally, where some ambiguity clouds the understanding of Rule 4(d)'s application, courts have found good cause for failing to waive service. See Whatley v. District of Columbia, 188 F.R.D. 1, 2 (D.C.1999) (good cause if there was no authority regarding the waiver of service by employees of municipal corporations; while that particular ambiguity provided good cause at the time, it would suffice as good cause after the ambiguity was resolved); Mosley v. Douglas County Corr. Ctr., et al., 192 F.R.D. 282, 284 (D.Neb.2000) (following Whatley in finding good cause once but not in the future).
However, where a defendant's misconception of the law causes the failure to waive formal service, courts have refused to find good cause. See United States v. First Midwest Bank et al., 1995 WL 447762, *4 (N.D.Ill. July 21, 1995) (no good cause in “[d]efendant's tortured interpretation of Rule 4” that it had thirty days to return the waiver from the date it learned of the suit); Dymits, 1996 WL 751111 at *15*16 (no good cause for defendant mistakenly calculating the period within which the waiver was

required to be returned).Seealso Ceres Trading Group et al., v. Dowdle, 1997 WL 94739, *3 (N.D.Ill. Feb. 28, 1997) (no good cause for defendant's belief that plaintiff must prove defendant delayed returning waiver). Similarly, good cause has not been found where the parties attempted to “contract” around the time frame set by Rule 4(d)(2)(F).See Bozell Group, Inc. v. Carpet Co-op of America Ass'n., Inc., 2000 WL 1523282, *4 (S.D.N.Y. Oct. 11, 2000) (“the Rules do not authorize the parties to contract around the waiver requirements.... [T]he language of Rule 4 is mandatory.”).
*4 In this case, Defendants have failed to establish good cause for their failure to waive formal service. They do not argue that they did not receive or understand the waivers. They do not allege that Plaintiffs failed to comply properly with Rule 4(d)(2). They do not cite any ambiguity that would call into question the Rule's application to them. Instead, Defendants present two reasons for denying the relief sought. They suggest 1) that Rule 4(d) can be estopped or at least delayed by Rule 54 and 2) that Plaintiffs' requests for waiver demands were unreasonable. See Response at 2. The Court will dispense with the Rule 54 argument before turning to the reasonableness issue.
The undersigned is not persuaded by Defendants' insistence that Plaintiffs must wait to file their requests for costs and attorneys' fees until after rendering of a final judgment. Rule 4(d) is not tied to Local Rule 4.18 or Rule 54. To the contrary, it is simply a defendant's failure to comply with a plaintiff's request for waiver that triggers the plaintiff's entitlement to reimbursement of costs and reasonable fees under Rule 4(d).See Estate of Darulis v. Garate, 401 F.3d 1060, 1063-4 (9th Cir.2005) (finding no “interplay between Rules 4(d)(2) and 54(d)(1)”). Moving for that relief before rendering of a final judgment, though perhaps uncommon, is not premature. See Double “S” Truck Line, Inc. v. Frozen Food Express, 171 F.R.D. 251, 253 (D.Minn.1997). Nor would it seem unprecedented.FN5Accordingly, the Court concludes that the Motion is not premature.
FN5.Seegenerally Donaghue v. CT Holdings, Inc., 2001 WL 1543816 (S.D.N.Y. Dec. 4, 2001); Kennemer v.

Jefferson Autoplex, L.L.C., et al., 2004 WL 1291185 (E.D. La. June 10, 2004). Although Donaghue and Kennemer do not mention whether final judgments had been rendered, the relatively short time frames between the dates of service and the dates of the orders make the preceding of final judgments seem unlikely. In Donaghue, the court awarded costs only six months after plaintiff effected service. See Donaghue, 2001 WL 1543816, at *1. In Kennemer, the court awarded costs only two months after plaintiffs effected service. See Kennemer, 2004 WL 1291185, at *1.
Defendants also suggest that the request for costs should be denied because Plaintiffs were unreasonable in their waiver demands. See Response at 2. They argue that the requests for waivers coincided with the Thanksgiving and Christmas holiday seasons. Seeid.Plaintiffs' failure to cater to Defendants' schedule is not, in itself, unreasonable. Further, no authority imposes upon Plaintiffs a duty to avoid holidays in sending notices and requests for waivers. Having filed the Complaint on September 19, 2004, Plaintiffs had a 120-day window, over the holidays, to make satisfactory service on all 27 Defendants. SeeRule 4(m). As Plaintiffs had the obligation to effectuate proper service within that period, they had the right to request waivers of service at any point within that time. Given Plaintiffs' filing date, coincidence with the holidays seems practically unavoidable. Indeed, had Plaintiffs waited until after the holidays to send waiver requests, they would have risked running out of time to effect personal service under Rule 4(m) if such service became necessary. See Weldon v. Electronic Data Systems Corporation, 2005 WL 1051902, *2 (11th Cir. May 4, 2005) (waiting three months after filing to send waiver request did not extend the time to effect service). Moreover, Defendants' suggestion that Plaintiffs were unreasonable is belied by the fact that Plaintiffs apparently did not effect formal service on any of the Defendants until January 11, 2005, well after the thirty-day period had passed.FN6See Motion, Exhibits B, C; Reply, Exhibit A.
FN6. Plaintiffs served their requests for waiver on November 19, 2004. See Exhibit at [unnumbered] 4 (exemplifying the requests sent to all Defendants and

mentioning specifically that the requests were made on Nov. 19, 2004). The end of the thirty-day window would have been December 19, 2004.
*5 Defendants also assert that Plaintiffs were unreasonable in seeking formal service of process while Defendants were trying to return the waivers. The circumstances underlying this argument are disclosed in the affidavit of Cassandra Capobianco and communications between the parties' attorneys which were attached to Exhibit “A” of the Reply. See Affidavit of Cassandra Capobianco, which is attached to the Reply, at ¶ 4-14 (Capobianco); E-mail Messages Dated Dec. 28, 2004, which are attached to the Affidavit (Messages). In the Messages, Defendants promise to return completed waivers only if Plaintiffs agree to abatement of the proceeding. See Capobianco at ¶ 5 (explaining the correspondence between Plaintiffs' and Defendants' attorneys). Indeed, the Dec. 28th e-mail from defense counsel, Dennis Dean, to Plaintiffs' counsel, Cassandra Capobianco, states “... if you do not agree to the motion [to abate] ... then you all will have to do your thing to effect service on the remaining Defendants....” Messages at 1. This correspondence fails to support Defendants' assertion. Rather, it suggests that Defendants attempted to circumvent the time frames of Rule 4 and agree to return the waivers of service only if they obtained a concession from the Plaintiffs.
Defendants' argument resembles that used by the defendant in Bozell, 2000 WL 1523282, at *4. There, the defendant argued that it did not return a waiver of service because the plaintiff had allegedly promised not to require compliance with Rule 4(d) if defendant agreed to arbitration. Seeid.The court refused to accept the suggestion that the purported agreement constituted good cause for defendant's failure to waive service. Seeid.Instead, it found that Rule 4 operated independently of any contract-like agreements between the parties, and that even if the parties had made such an agreement, the Rule would still impose on the defendant the duty to return the waiver or be liable for the costs of service. Seeid.
Here, Defendants seek insulation from the operation of Rule 4(d) based on their attempt to elicit a promise to abate Plaintiffs' claims if Defendants returned the waivers. However, it is evident from the

correspondence that no such agreement was actually reached. Moreover, Defendants could not condition their compliance with the requirements of Rule 4(d) on Plaintiffs' relinquishment of a substantive right. While Bozell indicates that, even if Plaintiffs had promised to allow more time to return the waivers, Rule 4 would still allow Plaintiffs to effect personal service after the thirty-day window had passed and seek reimbursement, this Court need not reach that issue. Instead, the undersigned finds that no agreement was made. In light of the foregoing, the undersigned concludes that Defendants have failed to establish good cause for their failure to waive formal service. Thus, Plaintiffs are entitled to an award of costs, including reasonable attorneys' fees, incurred in effecting service of process on each of the nonwaiving Defendants. The Court must now turn to the amount of costs which Plaintiffs shall recover.
*6 Regarding Plaintiffs' attorneys' fees, Defendants contend that Plaintiffs did not submit any evidence to support their general assertion of the reasonableness of their fees. See Response at 3. Quoting Norman v. Housing Authority of City of Montgomery, 836 F.2d 1292, 1301 (11th Cir.1988) and Duckworth v. Whisenant, 97 F.3d 1393, 1396 (11th Cir.1996), Defendants state that Plaintiffs should have supplied satisfactory evidence to establish that their rates accord with the prevailing market rate and that the hours are reasonable. Seeid.(quoting Duckworth, 97 F.3d at 1396). Defendants further suggest that Plaintiffs' generalized statements as to reasonableness are unavailing; instead, the party moving for fees must produce either direct evidence of rates or opinion evidence to establish reasonableness. See Response at 3. Defendants conclude that Plaintiffs' failure to provide evidence of the reasonableness of their attorneys' fees or proof that they are in accord with the community's prevailing market rate defeats Plaintiffs' claim for fees. Seeid.
In the Reply, Plaintiffs provide the sworn affidavit of Attorney Michael J. Dewberry as opinion evidence to support the allegations of the reasonableness of their rates and the time spent in preparing the Motion. See Reply at 7, Exhibit B (Dewberry). Mr. Dewberry's affidavit reads in part:
4. I am familiar with the prevailing market rates of attorneys practicing in Jacksonville and northeast Florida, and with the amounts customarily charged

by such attorneys and allowed by courts for attorneys' fees award pursuant to statute or rule. I am also familiar with the applicable federal law relating to court-awarded attorneys' fees. Finally, I am generally familiar with the experience, reputation, education, skills[,] and hourly rates charged by the Plaintiffs' attorneys who prepared Plaintiffs' Motion for Costs and Fees, namely Michael Agliata, Esq. And Cassandra J. Capobianco, Esq.
5.... [I]t is my opinion that given the number of Non-Waiving Defendants involved and the time required to accurately describe Plaintiffs' efforts to serve each of the Non-Waiving Defendants:
a. the total time spent of 8.7 hours in preparing the Motion ... was reasonable and appropriate; and
b. the hourly rates of $220.00 per hour for Michael Agliata and $200.00 per hour for Cassandra J. Capobianco are reasonable and appropriate.
Dewberry at ¶ 4-5. Relying on Dewberry's statements, Plaintiffs argue that their attorneys' fees were reasonable, necessary, and commensurate with the market price for their attorneys' skill and experience. See Reply at 7.
A determination of the reasonableness of attorneys' fees should start with a review of the framework articulated in Norman v. Housing Authority of City of Montgomery, 836 F.2d 1292 (11th Cir.1988). Although Defendants quote Norman for the proposition that generalized statements as to reasonableness “are not particularly helpful and not entitled to much weight”, seegenerally Response at 3 (quoting Norman, 836 F.2d at 1301),Norman also provides a helpful, thorough discussion of the Eleventh Circuit's standard for determining reasonable attorneys' fees. Seegenerally Norman, 836 F.2d at 1298-1306. A reasonable fee is generally determined by the lodestar method of multiplying the reasonable hours expended by the reasonable rate. Seeid. at 1299. A reasonable hourly rate is “the prevailing market rate in the relevant legal community for similar services by lawyers of reasonably comparable skills, experience, and reputation.” Norman, 836 F.2d at 1299 (citing Blum v. Stetson, 465 U.S. 886, 895-96 n. 11; Gaines v. Dougherty Country Bd. of Educ., 775 F.2d 1565,

1571 (11th Cir.1985)). Reasonable hours are those that would be reasonable to bill to a client and that are not “excessive, redundant or otherwise unnecessary.” See Norman, 836 F.2d at 1301 (quoting Hensley v. Eckhart, 461 U.S. 424, 434 (1983)). In examining whether hours are reasonable, the court may use its discretion to reduce the award for hours spent excessively or unnecessarily. See Norman, 836 F.2d at 1301.
*7 Those seeking fees “bear[ ] the burden of producing satisfactory evidence that the requested rate is in line with prevailing market rates.”Id. at 1299. Satisfactory evidence of rates may be provided in the form of direct evidence of rates charged by lawyers under similar circumstances or by opinion evidence. Seeid.Although a court may properly make an award of fees based solely on affidavits in the record, seeid. at 1300, 1303, the minimum for satisfactory evidence demands more than an affidavit from the attorney requesting the fee. Seeid. at 1299. Indeed, parties attempting to substantiate the reasonableness of a rate may wish to seek out testimony of other lawyers to provide a basis for the court's analysis. Seeid. at 1300. Evidence of prevailing views among practitioners in the community also assists the court in its determination of the reasonableness of hours expended. Seeid. at 1301. Finally, where parties oppose an award of fees and suggest exclusion of unreasonable or unnecessary work, such “objections and proof from fee opponents” should be “reasonably precise” and properly supported. Seeid. at 1301.
In Duckworth v. Whisenant, 97 F.3d 1393 (11th Cir.1996) (per curiam), the court of appeals considered the quality and quantity of opinion evidence needed to assist a court in determining a reasonable fee. See Duckworth, 97 F.3d at 1394-7. The Duckworth plaintiff claimed that the rate charged was reasonable and provided one affidavit to support his claim. See Duckworth, 97 F.3d at 1396. Defendants argued that plaintiff had not met his burden and challenged the content of the affidavit. Seeid.The court disagreed and found the single affidavit to be sufficient. Seeid.In doing so, the court noted that the plaintiff “clearly ha[d] met his burden in providing evidence by which th [e] court [could] assess the prevailing market rate.” Duckworth, 97 F.3d at 1396-7. Seealso Primerica Life Ins. Co. v. Walden et al., 170 F.Supp.2d 1195 (S.D.Ala.2001)

(the court found a fee reasonable when presented with an attorney's affidavit, reciting his “belie[f] that the time expended ... [was] reasonable for the issues involved and that the hourly rates charged ... [were] consistent with the hourly rates charged by attorneys having reasonably comparable skills, experience, and reputation”).
Failure of the parties to provide sufficient evidence to support the relief requested or precise objections will not, however, prevent the court from determining a reasonable fee. Instead, the court “may make the [fee] award based on its own experience.”See Norman, 836 F.2d at 1303 (citing Davis v. Bd. of Sch. Comm'rs of Mobile County, 526 F.2d 865, 868 (5th Cir.1976)). As noted in Norman,“the court, either trial or appellate, is itself an expert on the question [of the reasonableness of fees] and may consider its own knowledge and experience ... [in forming] an independent judgment either with or without the aid of witnesses as to value.” Norman, 836 F.2d at 1303 (quoting Campbell v. Green 112 F.2d 143, 144 (5th Cir.1940) (Sibley, J.)).
*8 Decisions since Norman have echoed its tenets. Indeed, in Loranger v. Stierheim et al., 10 F.3d 776 (11th Cir.1994) (per curiam), the circuit court expressed its continued willingness to give a court the freedom to draw from its expertise in making a final determination as to reasonableness of fees. See Loranger, 10 F.3d at 781-3. The district court in Loranger faced conflicting evidence as to the reasonableness of the rate charged for representation. See Loranger, 10 F.3d at 781. Rather than accepting either the applicant's or the opponents' affidavits, the court relied on its own expertise in determining the rate. See Loranger, 10 F.3d at 781. The court of appeals affirmed the court's exercise of that discretion. Seeid.
Applying Norman and its progeny to this case, the undersigned finds that the fees requested are reasonable. The fees charged are the product of the hours expended and the rate charged. See Motion, Exhibit E. All hours expended arise out of the Plaintiffs' efforts to effect service of process on the non-waiving Defendants or the preparation of the Motion. Seeid.The opinion evidence provided in Michael Dewberry's affidavit provides support for both the rate charged and number of hours expended. Defendant has provided no evidence to the contrary.

Thus, the Court finds that the attorneys' fees requested are reasonable.
Defendants argue that any award of costs of service and attorneys' fees should be specific to each Defendant. See Response at 3-4. This Court agrees, and while Plaintiffs need not give a detailed accounting of every dollar spent, they do bear the burden of establishing the nature of costs expended, substantiating the necessity of the costs, and differentiating between recoverable and nonrecoverable costs. See,e.g., Horton Homes, Inc. v.. United States, No. CIVA5:01-CV-130-2(W), 2004 WL 1719354, *2 (M.D. Ga. June 10, 2004); Scelta v. Delicatessen Support Servs., Inc., 2003 F.Supp.2d 1328, 1340 (M.D.Fla.2002); George v. GTE Directories Corp., 114 F.Supp.2d 1281, 1299 (M.D.Fla.2000). This Court finds that Plaintiffs have satisfied their burden and submitted sufficient information to allow for specific awards against each non-waiving Defendant. Indeed, the Motion and supporting documentation give this Court adequate understanding of each Defendant's contribution to the $1,652.53 figure that Plaintiffs request.FN7See Motion at 4. By operation of Rule 4(d), Plaintiffs are entitled to recover the costs incurred in effecting service of process on the non-waiving Defendants. However, questions arise regarding how this Court is to interpret some of the process server's notations FN8 as well as how the Court is to determine which of the Defendants should be responsible for the costs of researching home addresses, shipping and postage. Without explanation from the Plaintiffs or reference from the process server, one might conclude that Defendants Lampp, Ellis, Musselman, Chastain, Redd, Whitehurst, Tricocci, Barton, Carter, Sirmones, and Anderson were served multiple times and billed unnecessarily for repeated service. However, based on the assumptions explained in footnote 7, the Court concludes that Plaintiffs shall recover the costs relating to the unsuccessful or rejected attempts to effect service. Seegenerally Thompson v. Solo, 2004 WL 1385825, *2 (N.D. Ill. Jun 21, 2004) (compelling payment for cost of attempted service in addition to cost of effective service).
FN7. Plaintiffs do not explain why they ask for $1,652.53, which is $28.50 less than the total billed. See Motion, Exhibit D (totaling $1,681.03). Curiously, no charge appearing

on the invoices amounts to less than $30.00. Further, the $1,681.03 total includes a $60.00 charge for service on Defendant Wilson, reimbursement for which Plaintiffs supposedly do not seek. See Motion at 3 n. 3. This Court therefore assumes Plaintiffs actually seek $1,621.03 for the cost of the process server. Plaintiffs might do well to show their work in the future, explaining specifically each Defendant's contribution to Plaintiffs' costs.
FN8. It is not clear why the process server's invoices list some of the Defendants more than once. Further, this Court is without explanation as to the meaning of “a/s” or “s/s”. As best this Court can infer, “a/s” denotes “attempted service” and “s/s” denotes “substitute service”.
*9 Plaintiffs also seek recovery of $250.25 as the cost of finding the home addresses to effect process on all 22 non-waiving Defendants. See Motion at 4, Exhibit C. However, Plaintiffs do not address how each individual Defendant should bear these costs. Presumably, Plaintiffs expect the cost of the investigator to be divided equally among Defendants, similar to the pro ration they request for taxing Defendants for attorneys' fees. See Reply at 8. Unlike the preparation of a motion, which applies equally to all 22 non-waiving Defendants, the effort spent investigating individual residence addresses can vary greatly from one individual to the next. Neither of the invoices provided breaks down the individual charges for investigating the addresses of the 22 non-waiving Defendants.FN9Absent a specific indication of each Defendant's contribution, this Court cannot award these costs.FN10
FN9. Invoice 1119 only references charges for investigating Defendants Barton, Musselman, and Muse, lumping the charges for investigating each into one indiscriminate figure. Invoice 1209 does not specifically reference any Defendant.
FN10. The Court notes in passing that the circumstances regarding the Plaintiffs' use of the investigator are unclear. The Motion refers to the investigator only in passing to highlight Plaintiffs' costs. See Motion at 4. It

does not state the circumstances that made such costs necessary. Cassandra Capobianco's affidavit seems to address that matter, suggesting that Defendants' rejection of valid substitute service necessitated the personal service of Defendants Anderson, Ellis, Lampp, Musselman, Redd, Tricocci, and Whitehurst personally. See Capobianco at ¶ 15-16. However, only Defendant Musselman appears both in Capobianco's list of defendants and on the investigator's invoice 1119. See Capobianco at ¶ 15; Motion, Exhibit C. If Musselman was served at work as indicated on the invoice, this would undercut the idea that it was necessary to investigate Musselman's home address. See Motion, Exhibit C at [unnumbered] 5. Also, no explanation is given regarding the need to investigate the home address for Defendant Muse, who also appears to have received service at work. Seeid. at [unnumbered] 3. None of the other six Defendants listed in Capobianco's affidavit is mentioned on either of the invoices in the Motion's Exhibit C. Moreover, Defendant Barton appears to be the only Defendant whose home address was investigated and who received personal service at home. Seeid.
Similarly, this Court must reject Plaintiffs' request of $41.03 for shipping and return of documents and $30.00 for postage. While the notation shown in Exhibit C of the Motion suggests rush shipment of documents to Defendants Anderson and Sirmones, it does not indicate the individual costs of shipping documents relating to each Defendant. See Motion, Exhibit C at [unnumbered] 3, 4. It is also unclear to which Defendant(s) the $30.00 postage charge relates. Seeid. at [unnumbered] 5. This Court will not allocate these costs among all Defendants without direction as to which Defendant is actually responsible for which share of these charges.
CONCLUSION
The undersigned finds that Plaintiffs properly requested waivers of service from all Defendants and the 22 non-waiving Defendants failed to comply with Plaintiffs' request without good cause. Plaintiffs incurred $1,550.00 in recoverable costs effecting

personal service on those 22 non-waiving Defendants and $1,828.00 in reasonable attorneys' fees related to preparing the instant Motion.
Accordingly, it is hereby ORDERED:
1. Plaintiffs' Verified Motion for Award of Costs Relating to Defendants' Failure to Waive Formal Service of Process and Attorneys' Fees (Doc. No. 86) is GRANTED, in part, and DENIED, in part.
A. The Motion is GRANTED in that:
i. Defendant CROSBY shall reimburse Plaintiffs $143.09 ($60.00 costs and $83.09 attorneys' fees).
ii. Defendant CARTER shall reimburse Plaintiffs $173.09 ($90.00 costs and $83.09 attorneys' fees).
iii. Defendant SAPP shall reimburse Plaintiffs $143.09 ($60.00 costs and $83.09 attorneys' fees).
iv. Defendant SIRMONES shall reimburse Plaintiffs $193.09 ($110.00 costs and $83.09 attorneys' fees).
v. Defendant CLARK shall reimburse Plaintiffs $143.09 ($60.00 costs and $83.09 attorneys' fees).
vi. Defendant REDD shall reimburse Plaintiffs $253.09 ($170.00 costs and $83.09 attorneys' fees).
vii. Defendant MUSSELMAN shall reimburse Plaintiffs $143.09 ($60.00 costs and $83.09 attorneys' fees).
viii. Defendant ANDERSON shall reimburse Plaintiffs $243.09 ($160 .00 costs and $83.09 attorneys' fees).
*10 ix. Defendant MUSE shall reimburse Plaintiffs $113.09 ($30.00 costs and $83.09 attorneys' fees).
x. Defendant HALLE shall reimburse Plaintiffs $113.09 ($30.00 costs and $83.09 attorneys' fees).
xi. Defendant TRICOCCI shall reimburse Plaintiffs $173.09 ($90.00 costs and $83.09 attorneys' fees).
xii. Defendant CHASTAIN shall reimburse Plaintiffs

$143.09 ($60.00 costs and $83.09 attorneys' fees).
xiii. Defendant BARNETT shall reimburse Plaintiffs $113.09 ($30.00 costs and $83.09 attorneys' fees).
xiv. Defendant BARTON shall reimburse Plaintiffs $173.09 ($90.00 costs and $83.09 attorneys' fees).
xv. Defendant LAMPP shall reimburse Plaintiffs $203.09 ($120.00 costs and $83.09 attorneys' fees).
xvi. Defendant WHITEHURST shall reimburse Plaintiffs $143.09 ($60 .00 costs and $83.09 attorneys' fees).
xvii. Defendant GREEN shall reimburse Plaintiffs $113.09 ($30.00 costs and $83.09 attorneys' fees).
xviii. Defendant RIGGS shall reimburse Plaintiffs $143.09 ($60.00 costs and $83.09 attorneys' fees).
xix. Defendant REEDER shall reimburse Plaintiffs $113.09 ($30.00 costs and $83.09 attorneys' fees).
xx. Defendant SHIPLEY shall reimburse Plaintiffs $143.09 ($60.00 costs and $83.09 attorneys' fees).
xxi. Defendant ELLIS shall reimburse Plaintiffs $143.09 ($60.00 costs and $83.09 attorneys' fees).
xxii. Defendant LINDSEY shall reimburse Plaintiffs $113.09 ($30.00 costs and $83.09 attorneys' fees).
2. In all other respects, the Motion is DENIED.
DONE AND ORDERED.
M.D.Fla.,2005. Butler v. Crosby Not Reported in F.Supp.2d, 2005 WL 3970740 (M.D.Fla.), 19 Fla. L. Weekly Fed. D 461
END OF DOCUMENT

 
 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA JACKSONVILLE DIVISION

SYLVESTER BUTLER, et al.,
Plaintiffs, vs.
JAMES McDONOUGH, etc., et al.,
Defendants.

Case No. 3:04-cv-917-J-32MMH

ORDER This case is before the Court on plaintiff Michael McKinney’s July 29, 2006 letter to the undersigned (Doc. 220), which the Court construes as a pro se Motion for Preliminary Injunction. Pursuant to Local Rules 2.03(d), a party represented by counsel is not permitted to submit pleadings pro se (Mr. McKinney is also advised that pursuant to Local Rule 3.01(f), parties are not permitted to communicate with the Court by letter). Mr. McKinney is represented by multiple lawyers who, according to Mr. McKinney, are aware of the allegations contained in his motion and the Court will therefore deny the motion without prejudice to refiling by counsel if deemed appropriate. However, given the serious nature of the allegations contained in the motion, the Court directs counsel for defendant Secretary James McDonough to forthwith deliver a copy of this Order and Mr. McKinney’s motion to the warden of Florida State Prison to ensure that the warden is aware of the allegations and conducts any appropriate investigation. The Clerk is also instructed to send a copy of this Order directly to plaintiff Michael McKinney.

DONE AND ORDERED at Jacksonville, Florida this 9th day of August, 2006. s. Copies: counsel of record Michael McKinney
2

 
 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA JACKSONVILLE DIVISION

SYLVESTER BUTLER, et al.,
Plaintiffs, vs.

Case No. 3:04-cv-917-J-32MMH

JAMES MCDONOUGH, et al., Defendants.

ORDER1 This case is before the Court on pending motions. Defendant Crosby’s amended motion to dismiss (Doc. 215) is DENIED. This case is still at the pleadings stage and plaintiffs’ second amended complaint has pled sufficient facts as to these counts to deny the motion. Conley v. Gibson, 355 U.S. 41, 45-46 (1957). Several of the defendants move the Court to stay these proceedings (Docs. 201, 206, 219, 222) pending the outcome of an appeal taken by defendant James Wilson, in which his entitlement to qualified immunity is at issue. Where properly invoked, qualified immunity shields government officials not only from liability but from litigation itself, including discovery and trial. Hill v. DeKalb Reg’l Youth Det. Ctr., 40 F.3d 1176, 1184 (11th Cir. 1994). In denying Wilson’s motion to dismiss, the Court was satisfied that the allegations of the second amended complaint sufficiently stated a claim as to which Wilson would not be qualifiedly
1Under the E-Government Act of 2002, this is a written opinion and therefore is available electronically. However, it has been entered only to decide the motion or matter addressed herein and is not intended for official publication or to serve as precedent.

immune.2 The Court stands by that ruling. Plaintiffs’ second amended complaint alleges, inter alia, that over several days in
September of 2000, without warning or provocation, Wilson and other correctional officers repeatedly and maliciously sprayed chemical agents (including tear gas and pepper spray) on plaintiff Jeremiah Thomas, an inmate with asthma and severe mental illness, and that officers, including Wilson, falsified use of force reports to cover up their actions. Thomas alleges he suffered second-degree burns, intense burning sensations, and painful blisters and open wounds over various parts of his body and experienced documented disturbing signs of psychosis following the incidents, requiring several months of intensive mental health treatment at a Crisis Stabilization Unit. The complaint contains allegations of literally dozens of incidents of similar Eighth Amendment violations by corrections officers and their supervisors relating to unauthorized malicious uses of force involving chemical agents on Florida State Prison inmates.3
Given that this case is only at the pleadings stage, and in light of the existing legal authority at the time of the alleged actions, the Court believes that Wilson’s appeal of the Order denying his motion to dismiss is likely unmeritorious. This belief is strengthened by the actions of other defendants who, similarly accused, have not raised qualified immunity as a basis to dismiss the complaint. However, the Court is not able to find that Wilson’s
2The Court also rejected Wilson’s contention that the claims against him should be dismissed due to improper service of process.
3This recitation is not intended to imply that the Court has reached any determination whatsoever as to the merit of these allegations, only to show the well-pleaded allegations of the complaint.
2

appeal is frivolous and therefore will stay this action as to Wilson pending appeal; his motion, Doc. 201, is therefore granted.4 See Harbert Int’l, Inc. v. James, 157 F.3d 1271, 1280 (11th Cir. 1998) (when considering discovery requests in the face of a qualified immunity defense, “balancing is done with a thumb on the side of the scale weighing against discovery”); K.M. v. Alabama Dept. of Youth Servs., 209 F.R.D. 493, 495 (M.D. Ala. 2002) (“Once a nonfrivolous appeal of a denial of immunity has been filed, a stay of discovery is obviously appropriate until the appellate court resolves the immunity issue.”).
Nevertheless, the Court finds its discretion is best exercised by denying the motions brought by other defendants (Docs. 206, 219, 222) to stay litigation pending resolution of Wilson’s appeal. This case is nearly two years old and is only at the pleadings stage. Further delay is not countenanced by the appeal taken by only one of twenty-seven corrections officers named in this suit for their individual roles in the alleged violations, particularly one who is no longer a public official, especially where the defendants with supervisory roles have not invoked the qualified immunity shield at this stage.5
By separate Order, the Court will issue its Second Amended Case Management and Scheduling Order, the terms of which were discussed at the June 1, 2006 hearing (the Court
4The Court does not find that Wilson’s appeal divests this Court of jurisdiction. The cases cited by Wilson in support of that proposition are distinguishable. Moreover, notwithstanding this stay, Wilson can still be deposed as a witness in the case against the other defendants.
5Additionally, at the hearing held on June 1, 2006, defendants secured an agreement from plaintiffs to ask the Court for a six month delay in pretrial and trial deadlines to give defendants’ new counsel time to get up to speed. Now, many of these same defendants have rewarded plaintiffs’ generosity by seeking an indefinite stay of the entire litigation pending Wilson’s appeal.
3

has further extended some of the agreed upon deadlines to accommodate the delay in its issuance).
DONE AND ORDERED at Jacksonville, Florida this 7th day of September, 2006.
s. Copies: counsel of record
4

 
 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA JACKSONVILLE DIVISION

JEREMIAH THOMAS, EUGENE ULRATH, SYLVESTER BUTLER, CURT MASSIE, KELVIN FRAZIER, REGINALD WILLIAMS, PAUL ECHOLS, MICHAEL MCKINNEY, CHARLES MORGAN, and ANTONIO WARD,
Plaintiffs,
VS.
JAMES MCDONOUGH, in his official capacity,
RANDALL BRYANT, in his official capacity,
MICHAEL RATHMANN, JAMES V. CROSBY, JR., BRADLEY CARTER, GEORGE SAPP, STEPHEN SIRMONES, JOE LAZENBY, JR., ALLEN CLARK, MARK REDD, KEITH MUSSELMAN, TONY ANDERSON, JAMES WILSON, WILLIAM MUSE, COLIN HALLE, STEVEN TRICOCCI, TIM CHASTAIN, RODNEY BARNETT, RONNIE BARTON, KENNETH LAMPP, WENDELL WHITEHURST, STACEY GREEN, DA VID REYNOLDS, JOHN RIGGS, GLYNN REEDER, JOHN RIZER, OSCAR SHIPLEY, DEAN ELLIS, JEFFREY LINDSEY, BILL JARVIS. each in his individual capacity,
Defendants.

) ) ) ) ) ) ) CASE NO: 3:04-CV-9 I7-J-32-MMH ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

ORDER OF PARTIAL DISMISSAL WITH PREJUDICE Pursuant to the Stipulation of the parties (Doc. 235), the claims of Plaintiffs Kelvin Frazier, Antonio Ward, Charles Morgan, Sylvester Butler, Paul Echols and Reginald Williams for money damages against Defendants James V. Crosby, Jr., Bradley Cal1er, George Sapp, Stephen Sinnones, Joe Lazenby, Jr., Allen Clark, Mark Redd. Keith Musselman, Tony Anderson,

James Wilson, William Muse, Colin Halle, Steven Tricocci, Tim Chastain, Rodney Bamett,

Ronnie Barton, Kenneth Lampp, Wendell Whitehurst, Stacey Green, David Reyno lds, John

Riggs, Glynn Reeder, John Rizer, Oscar Shipley, Dean Ellis, Jeffrey Lindsey, and Bill Jarvis are

dismissed with prejudice, each party to bear the responsibility for thei r respective costs and

attorneys' fee s, if any.

Nothing in this Order of Partial Dismi ssal with Prejudice affects the claims of Plaintiffs

Kelvin Frazier, Antonio Ward, Charles Morgan, Sylvester Butler, Paul Echols and Reginald

Wi lliams for declaratory and injunctive reli ef, and costs and fees, aga inst De fendants James

McDonough and Randall Bryant, and nothing in thi s Order of Partial Dismissal wi th Prejudice

affects any of the relief sought by Plaintiffs Jeremiah Thomas, Eugene Ulrath , Curt Massie, and

Mic bael McKinney, against any of the Defendants

~fDecember, DONE AND ORD ERED at Jacksonville, Florida, this

2006.

Copies to: Counsel of Record

J. Corrigan tates District Jud e

 
 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA JACKSONVILLE DIVISION

SYLVESTER BUTLER, ET. AL.,

Plaintiffs,

vs.

Case No. 3:04-cv-917-J-32HTS

JAMES MCDONOUGH, ET. AL.,

Defendants.

ORDER This matter having come before the Court on the parties’ Joint Motion for Voluntary Dismissal with Prejudice as to Defendant James Wilson (Doc. 269), it is hereby ORDERED: This action is hereby DISMISSED with prejudice as to defendant James Wilson.
DONE AND ORDERED at Jacksonville, Florida, this 30th day of July, 2007.

md. Copies to: Counsel of Record

 
 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA JACKSONVILLE DIVISION

SYLVESTER BUTLER, et al.,
Plaintiffs, vs.
WALTER A. McNEIL, etc., et al.,
Defendants.

Case No. 3:04-cv-917-J-32JRK

ORDER Upon consideration of the parties’ recent filings (Docs. 370, 371), it is hereby ORDERED: 1. Plaintiff Sylvester Butler’s Unopposed Motion for Voluntary Dismissal of his Remaining Claims (Doc. 370) is GRANTED. Plaintiff Butler’s claims for injunctive and declaratory relief against Walter A. McNeil and Randall Bryant, each in their official capacities, are DISMISSED without prejudice.1 2. The parties’ papers represent that all claims against the individual defendants have been settled and that settlement documents are presently being reviewed. Additionally, plaintiff Ulrath is intending to voluntarily dismiss his claims against all defendants. If the settling parties have not yet moved to dismiss or otherwise terminate the litigation between them by June 10, 2008, counsel for plaintiffs shall, by that date, file a notice regarding the status of those matters.

1Plaintiff Butler’s damages claims were dismissed earlier in the litigation. See Doc. 237.

3. By separate Order, the Court will issue its rulings on the three motions which

the parties represent remain ripe for decision (2 summary judgment motions: Docs. 253,

306; and a Daubert motion: Doc. 296). In accordance with the parties’ representations, the

following motions may now be TERMINATED: Docs. 289, 294, 295, 297, 298, 303, 304,

305, 328, 329, 330, 331, 338, 342, 348, 359.

4. Although the Court is not prejudging its rulings as to the summary judgment

motions, the parties should assume this case is going to trial on the remaining claims for

equitable/injunctive relief according to the following schedule:

Telephone status conference:2

August 1, 2008; 11:00 a.m.

Filing of pretrial statement:

August 12, 2008

Final Pretrial Conference:

August 18, 2008; 2:00 p.m.

Non-Jury Trial (date certain):3

September 3-10, 2008 (9:00 a.m. - 5:00 p.m)

5. The Court’s Third Amended Case Management and Scheduling Order (Doc.

236) shall continue to govern the remaining pretrial and trial procedures in accordance with

the new dates above.

2Counsel for plaintiffs shall initiate the conference call by calling counsel for defendants and then calling the Court’s polycom telephone line: (904) 549-1949.
3The Court has reserved 6 trial days beginning on September 3, 2008. Barring some unforseen emergency, the parties should expect the case to be tried on those dates.
2

DONE AND ORDERED at Jacksonville, Florida this 9th day of May, 2008.
s. Copies: counsel of record
3

 
 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA JACKSONVILLE DIVISION

SYLVESTER BUTLER, et al.,
Plaintiffs, vs.
WALTER A. McNEIL, etc., et al.,
Defendants.

Case No. 3:04-cv-917-J-32JRK

ORDER Upon consideration of the stipulations filed by some of the parties (Docs. 374, 375, 376) it is hereby ORDERED: 1. Pursuant to their Stipulation (Doc. 374), Plaintiff Curt Massie’s claims (including those claims for declaratory and injunctive relief) against all defendants are DISMISSED WITH PREJUDICE, each side to bear its own costs and expenses, including attorneys’ fees. Plaintiff Curt Massie is dismissed from this case. 2. Pursuant to their Stipulation (Doc. 375), Plaintiff Eugene Ulrath’s claims (including those claims for declaratory and injunctive relief) against all defendants are DISMISSED WITH PREJUDICE, each side to bear its own costs and expenses, including attorneys’ fees. Plaintiff Eugene Ulrath is dismissed from this case. 3. Pursuant to their Stipulation (Doc. 376), Plaintiffs Michael McKinney and Jeremiah Thomas’s claims against all defendants except Walter A. McNeil (substituted for James McDonough) and Randall Bryant, in their official capacities, are DISMISSED WITH

PREJUDICE, each side to bear its own costs and expenses, including attorneys’ fees. 4. Pursuant to these stipulations, all remaining defendants except those sued in
their official capacities (Walter A. McNeil and Randall Bryant) are DISMISSED WITH PREJUDICE.
DONE AND ORDERED at Jacksonville, Florida this 28th day of May, 2008.
s. Copies: counsel of record
2

 
 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA JACKSONVILLE DIVISION

JEREMIAH THOMAS, KELVIN FRAZIER, REGINALD WILLIAMS, PAUL ECHOLS, MICHAEL McKINNEY, CHARLES MORGAN1 and ANTONIO WARD,
Plaintiffs, vs.
WALTER McNEIL and RANDALL BRYANT, in their official capacities,
Defendants.

Case No. 3:04-cv-917-J-32JRK

FINDINGS OF FACT AND CONCLUSIONS OF LAW
Plaintiffs Jeremiah Thomas, Kelvin Frazier, Reginald Williams, Paul Echols, Michael
McKinney, and Antonio Ward are inmates of the Florida prison system who have repeatedly
been sprayed by correctional officers with chemical agents for causing disturbances in their
cells on the close management wings at Florida State Prison ("FSP"). With two exceptions,2
the plaintiffs each have long documented histories of serious mental illnesses and allege that
at the times they were sprayed, they did not have the mental capacity to conform their
1Charles Morgan was released from custody just before this case went to trial. Plaintiffs having filed no objection, defendants' September 8, 2008 ore tenus motion to dismiss Morgan is now granted. See Doc. 422, Def. Ex. 17; Doc. 426 at 273-75 (September 8,2008 trial transcript discussion of Morgan's status). Three additional plaintiffs and twenty-eight other defendants have been dismissed from this suit during its pendency.
2As is further discussed below, the record does not support that Kelvin Frazier or Reginald Williams fit this profile.

behavior to follow the prison rules, such that the decision to spray them constituted cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments. The defendant Florida Department of Corrections ("DOC") officials,3 on the other hand, argue that while the prison's mental health classification system designated the plaintiffs as suffering from serious mental illnesses, they nonetheless retained the capacity to conform their behavior to the rules of FSP; thus DOC's gassing of plaintiffs did not violate the Constitution. Plaintiffs, represented by counsel, seek an injunction which would prevent the DOC from spraying them while housed in close management at FSP without first conducting a mental health consultation to evaluate whether they possess the mental faculties to understand and follow their jailer's instructions.
This is a hard case. The DOC's already difficult job is complicated by the fact that so many of its inmates have mental health issues and the DOC, with limited resources, must try to find the right balance between maintaining the good order and discipline necessary to run a correctional facility while at the same time accommodating the mental health treatment needs of inmates. On the other hand, a mentally ill inmate, who is under the total control of the DOC, has a constitutional right not be subjected to painful discipline for actions over which that inmate has no control. Both sides agree that the Eighth Amendment to the United States Constitution does not prevent correctional officers from spraying inmates with chemical agents to compel compliance with the rules of the ward, but the parties also acknowledge that this is only true when the inmate has the mental capacity to conform his
3Walter McNeil is the Secretary of the Florida Department of Corrections and Randall Bryant is the warden at Florida State Prison.
2

behavior to those rules. The issue presented by this case is whether the plaintiff inmates, who have been designated by the DOC as having the ability to conform their behavior to the prison's standards, have nonetheless demonstrated that at the time they were sprayed, this was no longer true (and was known or should have been known not to be true by the DOC) such that spraying them was cruel and unusual punishment and, if so, whether the DOC's policies with regard to mental health services at FSP have now evolved such that plaintiffs face no real risk of being subjected to the same Eighth Amendment violation in the future. Four years of litigation and five trial days later, the question is still close.4
4This case went to trial only as to whether prospective injunctive relief is warranted, these plaintiffs (as well as some others no longer in the case) having either settled or dismissed their claims for damages.
3

I. Findings of Fact5
A. Background Information and Relevant Prison Policies
The DOC houses over 75,000 inmates in 60 correctional institutions.6 The mental
health of all inmates is evaluated upon entry into a correctional institution and at certain other
times during an inmate's term of incarceration. The DOC mental health classification system
assigns each inmate one of six possible categories, ranging from "S-1 ," the lowest possible
designation, reserved for inmates who have no significant impairment and require no mental
health services, through "S-6," which is the highest possible category reserved for inmates
who are acutely and severely mentally ill requiring full time institutionalized care at a
psychiatric hospital facility. DOC security staff do not have access to inmates' medical or
5Pursuant to Fed.R.Civ.P. 52(a)(1), the Court makes these findings upon evaluation of the evidence, including the stipulations in the parties' joint pretrial statement (Doc. 395) and the testimony and exhibits admitted at the five day bench trial conducted before the undersigned on September 3-9,2008 (see Docs. 411-414, 416, 418-427). Where the evidence to support a relevant finding was in dispute, the Court has weighed the evidence on both sides to determine what facts "are more likely true than not true." Eleventh Circuit Pattern Jury Instructions (Civil Cases) 2005, Basic Instruction 6.1. Particular record cites are included when a point was in dispute or obscure. Citations to trial transcripts are noted by Docket number, followed by a "Tr." page number.
A few weeks after the trial ended, defendants moved (Doc. 430) to supplement the trial record to add certain documents about a non-party inmate (Jasmin Hunter) who was discussed by several witnesses during the trial and about whom other records were admitted over defendants' objection. Plaintiffs oppose the motion (Doc. 432). Upon consideration, the Court denies defendants' motion and those additional documents (of record as Exhibit 1 to Doc. 429) were not considered in reaching decision in this case. Both sides had ample opportunity to prepare their case and defendants do not suggest that the records they seek to admit (which are from May of 2007) were unavailable to them before or even during the trial. To admit additional evidence over objection at this late date would cause prejudice and/or create even further delay.
6Another 15,000 inmates are supervised by the DOC in various less restrictive facilities such as work camps and road prisons.
4

mental health records and do not have knowledge of an inmate's S- status, except as might be gleaned from an inmate's own statement or staff observations regarding an inmate's interactions with mental health staff.
Inmates with a rating of S-4, S-5, or S-6 are housed in special correctional facilities where inpatient psychiatric care is available. Inmates designated as S-1 or S-2 (those having no more than a mild impairment and needing few or no mental health services), are housed in any of a number of DOC facilities throughout the state. Inmates designated as S-3 (those prescribed psychotropic medications who have moderate impairment in adaptive functioning due to serious mental illnesses such as schizophrenia, bipolar disorder or major depression or schizotypal or borderline personality disorders), are housed in one offive DOC facilities. FSP, located in Starke, Florida, is one of these five facilities.? Although FSP houses some inmates who are classified as S-1 or S-2, its primary mission is to house S-3 inmates and at anyone time, a majority of FSP's 1,400 inmates are designated as S-3.
At FSP, nearly 80% of the inmates are housed in Close Management ("CM") cells, which are completely enclosed individual nine-by-seven foot prison cells with a solid steel door containing a small window and a flap (known as a "food flap") through which food, medication, and other items may be passed. An inmate is housed on a wing of CM cells when he demonstrates an inability to live in the open population at FSP or another DOC facility by virtue of receiving an excessive number of disciplinary infractions, the severity of those infractions, or because of escape attempts. Inmates housed on CM wings have
?The others are Santa Rosa, Charlotte, Union and, for female S-3 inmates, Lowell. 5

significant restrictions of privileges and property compared to inmates housed within an
institution's open population. Within the CM wings, there are three gradations ranging from
CM-I, which is the most restrictive, through CM-III, which is less SO.8 Within the DOC
system, FSP is designated as the primary facility for housing S-3 inmates who are on CM
status.
As with other DOC facilities, and regardless of any CM designation or S- status, all
inmates housed at FSP are expected to abide by the rules of the facility. These rules
prohibit creating a disturbance. At FSP, and particularly on the CM wings where officers'
visibility into individual cells is limited, yelling and banging on a cell door may be deemed by
security to be a disturbance both because it disturbs other inmates and because an inmate's
yelling or banging can create enough noise that staff cannot hear other inmates who may
need assistance. Additionally, an inmate's yelling and banging often incites other inmates
to join in, multiplying the commotion and increasing the risk that an inmate in need may not
be heard. When an inmate refuses to comply with an order from the staff to stop yelling or
8The parties stipulated that inmates are housed in CM units "by themselves" and the testimony generally was that each CM cell at FSP houses a single inmate. The Court notes, however, that the recent Osterback decision (which examined CM housing throughout the Florida DOC system) states that CM-II and CM-III inmates "are usually housed with two inmates in each cell ... to assist them in transitioning back into the open population by interacting with another inmate." Osterback v. McDonough, 549 F.Supp.2d 1337, 1356-57 (M.D. Fla. 2008). For purposes of this decision, and based on the parties' stipulation, the Court presumes that the plaintiff inmates were housed in single inmate CM cells while at FSP.
Although the record reflects that most CM inmates at FSP are designated as CM-1 (the most restrictive classification), plaintiffs did not attempt to link the level of their CM status with the degree of likelihood that they would be sprayed with chemical agents and the Court makes no findings in that regard.
6

banging on a cell door, the inmate may be subject to a "non-spontaneous" or planned use
of force to compel compliance. A non-spontaneous use of force is permitted in instances
where an inmate is engaging in certain prohibited behavior that does not involve harm or the
immediate threat of harm to a staff person or another inmate. As its name implies, a period
of time lapses before non-spontaneous force may be used. During this time, other
alternatives to using force are exhausted,9 authorization is secured from a warden for the
non-spontaneous use offorce, and a video cameraman is brought to the scene to record the
event. Within the DOC, the non-spontaneous use offorce may take several forms including
cell extraction, use of electronic immobilization devices, videotaping the inmate, a show of
force, batons, noise flash distraction devices, or use of chemical agents which are sprayed
at an inmate. 1o During the late 1990's, the primary method by which correctional officers at
9DOC procedures (33-404.107) state that no force of any kind can be used against an inmate "with a diagnosed mental illness" except as a last resort, other than in cases of emergency or when the force is less likely to result in injury to the inmate or staff. See Doc. 421, Ex. 41 at BATES 41 00015; Doc. 422, Ex. 1 (DOC use offorce procedures). The parties did not put on evidence as to how the diagnosis of a mental illness is conveyed to security staff (other testimony suggests it is not) or whether the exhaustion of other alternatives that is undertaken with respect to all non-spontaneous uses of force satisfies the "last resort" requirement applicable to mentally ill inmates. The Court therefore makes no findings as to whether the FSP correctional staff are complying with this procedure or whether any failure to do so presents any constitutional concern.
10As opposed to a "non-spontaneous" use of force, a "spontaneous" use of force is permitted where an inmate's conduct is of a type that presents immediate danger to the inmate or another person. Thus, a spontaneous use of force happens immediately to stop an inmate's action. The spontaneous use of force must be justified to supervisors after the fact but not beforehand. While the uses of chemical agents at issue in this case are "nonspontaneous" uses, chemical agents are also one of the types of force which correctional officers are permitted to use spontaneously. Several months before the trial, and following an incident in which an officer was stabbed through the food flap by an inmate at FSP, the DOC determined that on CM wings, an inmate's refusal to comply with an order to remove
7

FSP gained a recalcitrant inmate's compliance with an order was by cell extraction. In a cell
extraction, a team of five correctional officers enters an inmate's cell and forcibly restrains
and removes him. Most inmates (and often the guards as well) suffer injuries during a cell
extraction. In 1999, inmate Frank Valdes died at FSP as a result of correctional officers'
actions during a cell extraction- - the medical examiner found that Valdes was likely beaten
to death.11 Shortly after that incident, use of chemical agents became the primary method
of enforcing the rules where non-spontaneous force is needed. Records from 2000 through
2006 show that chemical agents were used on inmates at FSP hundreds of times each year
(including a high of over 600 times in 2003). See Doc. 422, Ex. 7, BATES 3726. While the
DOC records admitted at trial do not differentiate between spontaneous and non-
spontaneous uses during these periods, plaintiffs' correctional systems expert, Chase
the inmate's hand or arm from an open food flap posed an immediate risk of danger, warranting the spontaneous use of force, which Assistant Secretary of Institutions George Sapp testified is generally accomplished by immediately spraying an inmate through the food flap with chemical agents. See Doc. 424 at Tr. 41-42. Before this change, (which Sapp testified [Doc. 424 at Tr. 72-73] was accomplished through word of mouth communication to the correctional staff and is not a written policy) the failure to follow an order to close a food flap had not been deemed to pose an immediate risk and therefore only the nonspontaneous use of force was permitted in those instances. Some of the non-spontaneous uses of chemical agents reviewed for this case (including one portrayed in a video the Court watched before trial, Doc. 421 at Ex. 65), involved an inmate's failure to remove his arm from the food flap. Under the new policy, an inmate can be immediately sprayed with chemical agents upon refusing an order to close the food flap. Though discussed at trial and relevant to some of the issues here, the propriety of that particular policy change is not challenged in this case.
11Although the Court agreed with defendants at trial that this case was not the place to "retry" the Valdes case, DOC officials testified that the DOC instituted drastic changes at FSP following his death. The Court takes judicial notice of Frank Valdes' autopsy report. See Valdes v. Crosby, 390 F.Supp.2d 1084, 1098 (M.D. Fla. 2005), aff'd, 450 F.3d 1231 (11th Cir. 2006). See also Fed.R.Evid. 201.
8

Riveland, whose report was admitted without objection, compared these overall figures with
the DOC inspector general logs for 2001 through July of 2004 and determined that for those
periods, over 90% of the chemical agent uses were designated as non-spontaneous. See
Doc. 421 , Ex. 48 at BATES 4800020. More recent records for 2007 and 2008 show that the
numbers of uses of chemical agents at FSP have significantly abated, particularly for non-
spontaneous uses, where the numbers have fallen off to only a few such occasions each month. See Doc. 422, Ex. 7 at BATES 3720, Ex. 15.12
A particular protocol is required before a correctional officer can non-spontaneously
spray an inmate with chemical agents to enforce compliance with an order, such as to stop
yelling or banging on a cell door. First, a correctional officer attempts to de-escalate the
situation by communicating with the inmate to attempt to gain his compliance. Doc. 421, Ex.
39 at BATES 3900095. If de-escalation efforts fail, and with permission of a supervisor and
clearance from medical staff who review an inmate's medical chart (but not an inmate's
mental health chart) for any contra indications to the use of chemical agents, a correctional officer begins videotaping the incident13 and, once final verbal efforts to convince the inmate
12Assistant Secretary Sapp testified that there is likely a correlation between the February 2008 policy change converting "food flap" violations to spontaneous uses and the drop in the ratio of non-spontaneous uses to spontaneous uses of chemical agents. See Doc. 424 at Tr. 42-43. Compare Doc. 422, Ex. 15 at BATES 3877-79 (showing 13 non-spontaneous uses of chemical agents and no spontaneous uses between January 1, 2008 and February 6,2008) with BATES 3879-89 (showing 8 non-spontaneous uses of chemical agents and 84 spontaneous uses between February 11,2008 and July 28,2008). See Doc. 426 at Tr. 16871 (testimony of FSP chief of security Major Daniel Hopkins, explaining chart and confirming change).
13Some of the inmates here were sprayed with chemical agents at a time when the DOC videotaping policy contained an exception for FSP that did not require videotaping of uses
9

to comply are exhausted, a second correctional officer administers three one-second bursts
of a chemical agent (usually oleoresin capsicum ("OC"), also known as pepper spray) into
the inmate's cell through the food flap. The food flap door is then closed and an inmate is
given approximately five minutes to comply with the order. Although circulation fans on the
wing are turned off before chemical agents are used, according to FSP Major Hopkins (and
as viewed by the Court on videotapes), enough of the gas escapes from the cell that the staff
involved are exposed to an uncomfortable degree. If, after five minutes, the inmate is still
not complying, a second round of chemical agents (usually OC again) is administered in the
same manner (three one-second bursts). If the inmate still refuses to comply, a third round
of chemical agents is administered,14 this time using a stronger chemical agent
(orthochlorbenzal malononitrile ("CS"), sometimes called tear gas).15 This third administration of chemical agents is not videotaped. 16 If at any time during this process, the
inmate declares that he is experiencing a psychological emergency or if officers notice
of chemical agents. That exception was eliminated in January 2007 and FSP's videotaping policy is now in conformity with the other DOC facilities.
14An earlier DOC protocol for the use of chemical agents permitted this third spraying only after medical staff were consulted to determine whether other options were available, including "psychological intervention." See Doc. 421, Ex. 35 at BATES 3500018.
15Some of the plaintiffs were sprayed with a third chemical agent- - chloroacetophane ("CN"), which the DOC stopped using after medical concerns were raised about its effect on some inmates. See Doc. 421, Ex. 35 at BATES 3500030-31.
16Videotaping is also not required if an inmate stops his disruptive behavior once officers arrive with the videocamera and chemical agents on hand, but then restarts the behavior once those officers leave. Such inmates are deemed to be "gaming" the system and DOC rules do not require that subsequent uses of chemical agents to compel compliance be videotaped.
10

behaviors that they believe are consistent with symptoms of acute mental illness, the use of
force procedures are suspended and mental health staff (or medical staff in their absence) are called to evaluate.
Assuming that the use of chemical agents eventually induces the inmate to comply with the order to stop the disturbance, 17 he is ordered to submit to handcuffing so that he can
be taken to the shower to wash off the remaining chemicals. Although the manufacturers'
labels on chemical agent dispensers direct that soap be used to wash off the product, Assistant Secretary Sapp testified that at the manufacturers' training sessions, the manufacturers directed that soap not be used. Dr. Ira Dushoff, defendants' burns expert, testified that substances in some soaps can cause the skin to burn where chemical agents have been applied. DOC protocol therefore requires that an inmate be offered a cool shower with no soap following the administration of chemical agents. Once the inmate showers, he is seen by medical staff for evaluation. During this time, the inmate's cell is decontaminated by removing and washing all bedding and clothing, and washing all surfaces including the floor. Sometimes, inmates will refuse to submit to handcuffing to be taken to the shower
after being sprayed with chemical agents. When that happens, medical staff are called to
171f an inmate refuses to comply after this third use of chemical agents or if such use is contraindicated by medical staff, supervisors may order other actions, such as a cell extraction, to compel an inmate's compliance. Indeed, some of the chemical agents DOC uses are known to be ineffective at controlling behavior 40% of the time when used against persons with active mental illnesses, which plaintiffs' toxicology expert explained may be due to the altered perceptions of the mentally ill. Doc. 421, Ex. 39 at BATES 3900006-08; Doc. 421, Ex. 82 at Tr. 124-25. Evidence at trial suggested that the behavior of at least two of the plaintiffs seemed at least occasionally to be unaffected by the chemical agents used against them. See Doc. 421, Ex. 1 at BATES 0100079; Doc. 422, Ex. 8.
11

the cell front to talk to the inmate, who is offered the opportunity to shower every thirty minutes for the next two hours. An inmate who refuses to take a shower is subject to receiving a disciplinary report, which is in addition to the disciplinary reports the inmate may receive for causing the disturbance and for disobeying the order to stop causing the disturbance that resulted in the use of chemical agents to compel him to stop. As with any use of force, after chemical agents are used against an inmate, he is referred to mental health staff for an evaluation within the next 24 hours, excluding weekends and holidays.
Exposure to chemical agents can cause physical injury- - indeed, the use of chemical agents is intended to temporarily cause intense physical pain, a burning sensation in the mucus membranes, involuntary closing of the eyes, gagging, paralysis of the larynx, disorientation, anxiety and panic. Doc. 426 at Tr. 70-71 (testimony of defendants' toxicology expert, Richard Lipsey, Ph.D.). These effects are meant to be short-lived and when the products are used in accordance with manufacturers' directions, it appears they are. However, these effects can be more severe and/or longer lasting when ventilation is limited, when proper decontamination procedures are not timely followed, or when the person sprayed has a particular sensitivity to the product.
Plaintiffs' toxicology expert, Woodhall Stopford, M.D., examined the plaintiffs, visited the wings at FSP, reviewed the reports of chemical agent usage and determined that the area is improperly ventilated during uses of chemical agents, decontamination procedures are ineffective, and some of the plaintiffs have pre-existing conditions, such that the effects of chemical agent usage were in fact far more severe than their prescribed use would
12

imply.18 Doc. 421 at Ex. 50 (expert report and attachments of Woodhall Stopford, M.D.); Doc. 426 at Tr. 249. Defendants' toxicology expert testified that chemical agents can cause second degree burns if contacted areas are not washed. Doc. 426 at Tr. 112. Dr. Donald Gibbs, a psychiatrist and neurologist who formerly served as a senior psychiatrist at FSP, stated that he observed burns on the faces, eyes and bodies of inmates who he treated after their exposure to chemical agents and, while treating such inmates, the chemical agents still lingering about them was sometimes so strong that he "personally experienced dramatic effects of choking, difficulty breathing, and other symptoms as a result of inhaling gas while providing psychiatric services" to such inmates. Doc. 421, Ex. 62. Moreover, the training materials provided to correctional officers learning to use chemical agents require officers to secure medical clearance for themselves before engaging in training and further warn that persons suffering from, among other ailments, heart problems, panic disorders or stress, respiratory disorders, skin allergies, bronchial asthma, high blood pressure, or diabetes may find their conditions aggravated by exposure to chemical agents, "possibly to a severe degree." Doc. 421, Ex. 39 at BATES 3900032-33. It is clear from this record that physical injuries may be suffered by exposure to chemical agents.
Additionally, Dr. Gibbs stated that in his experience of treating inmates at FSP in 2003 and 2004, the use of chemical agents on mentally ill inmates exacerbated their symptoms, making them "more paranoid, frightened and fearful," and "less trusting and more angry," all of which is "detrimental" to the ability to treat the inmates' mental illnesses. Doc. 421, Ex. 62.
18Dr. Stopford's assessments as to each individual plaintiff are addressed below. 13

Psychiatrist Kathryn Burns, M.D., plaintiffs' correctional mental health expert, who examined
the plaintiffs, reviewed their records, and visited FSP, likewise testified that in her opinion,
the plaintiffs suffered psychological effects from the use of chemical agents including feelings
of intense helplessness, fear of dying, attempts at suicide and exacerbation of other symptoms of mental iIIness. 19 Doc. 421 at Ex. 49. It is clear from this record that
psychological injuries may also be suffered by exposure to chemical agents.
Unlike at FSP and other institutions housing S-3 inmates, inmates designated as S-4,
S-5, or S-6 are housed in intensive treatment facilities where they are not sprayed with
chemical agents when non-spontaneous force is needed. Union Correctional Institution
("UCI") is a DOC correctional institution across the street from FSP that has intensive treatment facilities that house S-4 and S-5 inmates.2o As with other institutions, inmates at
UCI must abide by the facility's rules and even inmates designated as S-4 or S-5 are
generally considered to have the capacity to do so. See Doc. 427 at Tr. 81-82 (testimony
of Dr. Peggy Watkins-Ferrell, Lead Senior Psychologist at FSP); Doc. 427 at Tr. 164-65,
187-88 (testimony of clinical psychologist Dr. Roderick Hall, former DOC mental health
director). As with FSP, at UCI, banging on a cell door or yelling can be deemed to be a
19Dr. Burns' assessments as to each individual plaintiff are addressed below. Defendants urge the Court to discredit Dr. Burns' testimony because she believed the plaintiffs' accounts about the uses of chemical agents against them instead of also considering what security staff said regarding those uses of force. While the Court takes that into account, given Dr. Burns' qualifications and the supporting opinion of other witnesses such as Dr. Gibbs, the Court finds her opinions regarding the psychological effects of chemical agents on plaintiffs are to be credited.
2°S_4 inmates are housed in a "transitional care unit" or "TCU" at UCI; S-5 inmates are housed in a "crisis stabilization unit" or "CSU" at UCI. UCI also houses some S-3 inmates.
14

disturbance. At UCI, however, the non-spontaneous use of chemical agents is not permitted to quell such a disturbance. Instead, the first approach at UCI is to have mental health staff intercede to counsel the inmate and make medication adjustments as necessary. DOC initially addresses these disturbances with mental health intervention instead of with security measures because when S-4, S-5, or S-6 inmates manifest inappropriate behaviors, the DOC has determined that it is possible that the symptoms of their mental illness have exacerbated to the extent that they cannot control their actions or that their reactions to particular situations are disproportionately magnified due to the exacerbation of their mental illness symptoms, and not due to recalcitrance. Thus, even though inmates at UCI may engage in the same types of disturbances that are met with security measures at FSP, DOC has determined that the first order of intervention for inmates at UCI will be mental health treatment. Doc. 427 at Tr. 185-87 (testimony of Dr. Hall); Doc. 424 at Tr. 11-13, 21-22 (testimony of Assistant Secretary Sapp). Dr. Olga Infante, a psychiatrist who worked from 1999 through roughly 2005 treating inmates at UCI and occasionally at FSP, testified that the difference between the two facilities in terms of security and mental health management was "night and day." Doc. 425 at Tr. 231. Dr. Infante testified that at UCI, mental health and security staff work together as a team, and that inmates can usually be counseled into cooperating, even with submitting to physical restraints, when mental health staff intercede.
Dr. Infante explained that banging and yelling are behaviors that might signal an exacerbation of the mental illnesses from which S-3 and S-4 inmates can suffer, such as the
15

bipolar component of those suffering from schizoaffective disorder.21 Thus, for an S-3 inmate, who the DOC would otherwise expect to be able to conform his conduct to the prison rules, these behaviors may be a sign that an inmate has decompensated. This could be caused from the pressures of living under the strict conditions of a CM wing, from the effects of psychotropic medications (which Dr. Infante testified can sometimes cause internal restlessness, an effect particularly difficult for an inmate to manage in the isolation of a cell), or perhaps from an inmate's failure to take his medication. 22 Dr. Infante testified that at UCI, security staff could afford to be more tolerant of some of these behaviors, such as yelling, that staff at FSP have to address more harshly because of the greater security risk present on the CM wings at FSP. She further testified that because the mental health of inmates housed at UCI is monitored so closely, early intervention results in fewer incidents of inmate disturbances than at FSP. Dr. Infante explained that the more episodes of decompensation a person experiences, the more difficult it is to stabilize and restore that person to his previous level of functioning. Doc. 425 at Tr. 240. Assistant Secretary Sapp testified that facilities such as UCI that provide in-patient treatment naturally have greater mental health resources that allow closer supervision and monitoring of inmates. Dr. Infante and Sapp both testified, however, that if mental health intervention is unsuccessful in coercing an
21S_3 and S-4 inmates may be diagnosed with the same mental illness. The difference in designation reflects the level of mental health care the inmate is expected to need. While inmates at either level receive therapy and medication as appropriate, an S-3 is expected to be able to manage his illness in an outpatient setting whereas an S-4 inmate requires inpatient treatment.
221nmates have the right to refuse medication except when ordered by a doctor to save the inmate from harming himself or another.
16

inmate's compliance with an order the staff deem must be complied with, as a last resort, correctional officers at UCI will perform a cell extraction to compel an inmate's compliance.
Based on evaluation (which occurs at regular intervals throughout an inmate's term of incarceration and on request by staff or the inmate himself), an inmate's mental health designation may transition from one level to another. This transition may be gradual or sudden and while certain variables can be triggers for change (such as receiving upsetting news, involvement in an altercation, or having a medication adjustment), other times change can occur for no apparent reason. When an S-3 inmate experiences this transition- decompensates- - he may become confused, disorganized and disoriented, impacting his ability to follow orders because he has become preoccupied with internal thoughts and is rendered incapable of understanding or conforming to demands. If the mental health of an S-3 inmate at FSP deteriorates to the extent that the inmate is due to be re-designated as an S-4, he is transitioned out of FSP and moved to a facility where a more intensive level of treatment is available, usually UCI. Likewise, when the mental health of an inmate housed at UCI improves to the extent that the inmate is due to be re-designated as an S-3, he is moved back to the facility where he came from- - usually FSP.
Some inmates have a history oftransitioning back and forth from FSP to UCI. Known as "frequent-fliers," these inmates are treated at UCI and returned to FSP, only to quickly decompensate and be sent back to UCI- - sometimes after having been sprayed (even repeatedly) with chemical agents for disturbances they caused in their short stay at FSP. The security and mental health staff who testified or gave statements were generally all familiar with this phenomena (though it is apparently less prevalent now than it was in the
17

past due to measures discussed below). Dr. Infante testified that once she became aware of this problem, she would "hold" an inmate being released from UCl's in-patient area in a non-hospital confinement area at UCI that houses S-3 inmates to see if the inmate would adjust in a confinement setting without deteriorating. Doc. 425 at Tr. 234-35. However, the bed space at UCI is limited and Dr. Infante testified that there was sometimes pressure to move an inmate out of the in-patient facility to make room for an inmate awaiting transfer to UCI from elsewhere and that occasionally space had to be made in areas such as medical holding rooms to house inmates. Former Warden James Crosby testified that he believed that seriously mentally ill inmates were returned to FSP from UCI due to insufficient bed space at UCI. Doc. 426 at Tr. 241-42. Former FSP senior nursing supervisor, Tina Battles, issued a memo to her nursing staff in 2004 advising that S-3 inmates in CM housing can become psychotic or decompensate without warning and that mental health staff would provide the nurses with a list of inmates mental health suspected might have decompensated or become psychotic. Battles' order to her staff was that they should advise security staff that the use of chemical agents was contraindicated for any inmate on that list.23 Battles testified that the memo and list of inmates were an effort to address the frequent flier problem and that the inmates on the list were those who were awaiting transfer to UCI. Battles further testified that the policy was discontinued, however, when a new warden came to FSP.
23Apparently plaintiff Jeremiah Thomas was named on such a list back in 2000. See Doc. 421, Ex. 1 at BATES 0100040-43.
18

Dr. Burns testified that in her experience and research with the mental health and correctional community, it is unusual for a "supermax" facility such as the CM wings at FSP to house seriously mentally ill inmates because the long term social isolation, sensory deprivation and forced idleness of the setting exacerbate the symptoms of the mentally ill, who generally have fewer coping skills than the rest of the population. 24 Therefore, it is not surprising, she explained, that an S-3 inmate in CM housing at FSP who is eventually sent to UCI for in-patient treatment (such as following an episode of decompensation which results in the inmate being sprayed with chemical agents) would experience an improvement in his mental health, sometimes even without further intervention. With the inmate's return to the conditions on the CM wings at FSP, however, the symptoms can be expected to again worsen and the cycle is repeated. Doc. 421, Ex. 49 at BATES 4900004-05; Doc. 425 at Tr. 15-28.
Dr. Tuong Nguyen, who previously served as the DOC's medical director at UCI and FSP, stated that she too observed the frequent flier phenomenon between FSP and UCI's in-patient facility and she believed that inmates "were being gassed with chemical agents at FSP for behavior that was consistent with their diagnosed mental illnesses." Doc. 421, Ex. 47 at BATES 4700001-02. Dr. Nguyen observed that chemical agents were used far more frequently at FSP than at UCI, which also housed S-3 inmates at the time, and she alerted DOC officials to her concern but did not see the result of any action that may have been
taken. kL. During her tenure, Dr. Nguyen instructed medical staff to review charts of S-3
24Dr. Burns explained that even people with no pre-existing mental illness can be expected to experience psychological distress in such a setting.
19

inmates to determine whether there were mental health contraindications against the use of
chemical agents. kL.
Richard Stalder, defendants' well qualified correctional expert,25 testified that Florida's practice of housing S-3 inmates in close management conforms with standard correctional practices for large correctional systems of similar size because Florida appropriately vests the decision as to an inmate's S-status designation with mental health professionals. Thus, if mental health professionals deem an inmate to be an S-3, the DOC should be able to assume that the inmate can conform his actions to the demands of a facility, even when the facility is highly restrictive and has burdensome rules, such as the CM wings at FSP. Having said that, however, Stalder was also of the opinion that the "frequent flier" syndrome represented a possible breakdown in care that should be addressed at higher levels. Stalder testified that as the frequency with which an inmate's condition destabilizes and restabilizes increases, so too should the frequency with which the inmate's treatment plan and designation are reviewed. Thus, while such an inmate may not be manifesting truly acute signs that correctional staff are trained to watch for (such as serious self-mutilation), the mere fact that the inmate is being repeatedly transferred back and forth from an out-patient to an in-patient facility should at least trigger more monitoring at higher levels of
25Mr. Stalder served sixteen years as secretary of the Louisiana Department of Public Safety and Corrections, is a past president of both the National Association of State Correctional Administrators and the American Correctional Association (an accrediting body which issues model standards and whose membership includes facilities that meet a majority of those standards), and has reviewed, audited, written and spoken about various local, state, federal and foreign correctional facilities, practices, concerns and goals. See Doc. 426 at Tr. 6-9.
20

administration to ensure that an inmate truly is competent before being returned to a facility where he will be expected to follow orders or be compelled by force to do so. See Doc. 426 at Tr. 57-60.
Peggy Watkins-Ferrell, Ph.D., FSP's lead senior psychologist for the past three and a half years, explained that sometimes inmates feign symptoms in an attempt to secure a transfer to a facility where the conditions are considered better. Doc. 427 at Tr. 102-05. Dr. Watkins-Ferrell testified that in her experience, she does not believe inmates are being sprayed with chemical agents at FSP for exhibiting behaviors which are simply uncontrollable symptoms of their mental illness and that she has confidence that the Sclassification system correctly assesses those with an S-3 grade as having the ability to conform their behavior. She testified that during the post-use of force evaluations, her staff are not routinely finding that the inmates are acutely mentally ill such that they could not control their behavior. However, when the DOC performs mental competency evaluations that follow a use of force to determine the appropriate manner in which to discipline the inmate, these evaluations sometimes find the inmate was not competent at the time he was sprayed. Additionally, Dr. Watkins-Ferrell further stated that "on any given working day" "one or two inmates" are referred out of FSP for placement in a facility such as UCI where inpatient treatment is available and, as further discussed below, a new transition unit at UCI ("O-Dorm") houses upwards of 100 S-3 inmates who have been designated for transfer from FSP to an in-patient facility. Doc. 427 at Tr. 83-84, 87. See also, Doc. 421, Ex. 46B at BATES 4600029 (chart of FSP inmates on waiting list for TCU from June 1, 2007 through April 18, 2008). Thus, the record supports that there are (or at least have been) CM inmates
21

at FSP for whom the S-3 designation is no longer appropriate. The Florida Correctional Medical Authority, created by the Florida legislature as an
independent agency to monitor the delivery of health care services in Florida's prisons, issued a 2005/2006 report advising DOC that mentally ill inmates may suffer symptoms that result in behaviors such as yelling incessantly, refusing to obey orders or lashing out without provocation and may have difficulty following "the strict rules of a prison setting." Doc. 421, Ex. 53 at BATES 5300357-58. The CMA cautioned that security staff who are not trained to address these types of behaviors may respond inappropriately in ways that "aggravate the
prisoner's conduct." kL. at BATES 5300357. And even earlier, in its 2002/2003 report,26 the
CMA expressed continuing "significant concern" that chemical agents were being inappropriately used on inmates in close management or confinement settings at DOC facilities resulting in serious medical consequences including chemical burns, and the exacerbation of mental health symptoms, which in one instance led to an inmate's suicide.
kL. at BATES 5300247. The CMA suggested that the DOC improve the situation by
considering adopting confrontation avoidance techniques such as are used by the Federal Bureau of Prisons, which involves mental health consultation before the non-spontaneous
use of chemical agents are administered. kL. at BATES 5300237, 5300247. This
recommendation was again reiterated in the CMA's 2003/2004 report, but the DOC chose not to adopt it.
26The CMA report for fiscal year 2002/2003 is styled "2003-2004 Annual Report." See Doc. 421, Ex. 53 at BATES 5300231-64.
22

Some of the issues discussed above were highlighted by the Osterback litigation,
which addressed conditions of confinement (including the delivery of mental health services) for inmates housed on CM wards throughout the state.27 In recognition of both that litigation
and to address the overall increase in numbers of mentally ill inmates throughout Florida's
prisons (a trend that is consistent nationwide), the DOC has implemented policies that were
not in place on some of the occasions when plaintiffs were sprayed with chemical agents.
One of these new policies provides additional training for security staff working on CM wings
to teach them to recognize the signs and symptoms that may indicate the onset of acute
mental illness. In the past (or at least during James Crosby's 1998-2001 tenure as FSP
warden), security staff did not consult with mental health staff regarding inmate behavior,
even when security staff observed signs they believed signaled that an inmate was unable to conform his conduct. Doc. 426 at Tr. 241-42. Now, under the "Osterback training,"28 FSP
chief of security Major Daniel Hopkins explained that during rounds (which occur every thirty
minutes) security staff watch for behaviors, such as not eating, not showering, or not going
to recreation, that might be signs that an inmate is experiencing a mental health problem.
Major Hopkins explained that while the first step is usually to ask the inmate what the
27See Osterback v. McDonough, 549 F.Supp.2d 1337 (MD. Fla. 2008). While the delivery of mental health services to CM inmates was an important feature of the Osterback litigation, the case addressed several other conditions unrelated to mental health services,
such as access to recreational and educational opportunities. kt
28The Osterback training was included as part of a Revised Offer of Judgment accepted by the Osterback plaintiffs and adopted by the Court in December 2001. Osterback, 549 F.Supp.2d at 1341. It is not clear how soon thereafter the training program went into effect (though it was apparently in place by December 2003 when the Osterback defendants
moved to terminate the injunction). kt
23

problem is, if the security staff cannot resolve the issue with the inmate, he will be referred to mental health for consultation. Assistant Secretary Sapp testified that staff are trained to watch for inmates who are engaging in behaviors that are unusual for that inmate and to report those observations to the mental health staff. Dr. Watkins-Ferrell testified that the acute symptoms of mental illness are recognizable to lay persons and that security staff now frequently refer inmates to mental health for evaluation when they have concerns about inmate behavior, even if the symptoms are not necessarily acute. See also, Doc. 421, Ex. 39 at BATES 3900047-58 (printed training materials). However, Sergeant Keith Musselman, a DOC employee who has worked at FSP and who received the Osterback training in January 2007, testified that when an inmate is causing a disturbance, he is not able to distinguish whether the inmate's behavior is caused by mental illness or from a desire to be disruptive. Doc. 427 at Tr. 42-43; Doc. 422, Ex. 18. at Tr. 49-50. Dr. Hall testified that even mental health professionals have difficulty distinguishing between behavior that is willfully noncompliant or maladaptive and behavior that is a sign of acute impairment in functioning for which the person cannot be held entirely accountable. Doc. 427 at Tr. 186-88.
Dr. Watkins-Ferrell also testified regarding the new DOC policy that inmates subjected to a use of force are to be seen by mental health staff within one working day of the incident. It is not clear when this policy came into effecf9but Dr. Watkins-Ferrell testified that it gives mental health staff an additional opportunity to evaluate the inmate and to determine whether any changes need to be implemented with regard to that inmate's mental health care. Doc.
29The Osterback decision, which exhaustively reviewed the mental health services afforded inmates on CM wings, does not mention it. Osterback, 549 F.Supp.2d 1337.
24

427 at Tr. 87-90. While this protocol obviously does nothing to evaluate the mental health of an inmate immediately before force is used against him, it does provide an additional check that within the twenty-four hours thereafter (excluding weekends and holidays), the inmate's mental health is being assessed, thereby reducing the likelihood that an inmate who is no longer capable of conforming his behavior would be sprayed with chemical agents on multiple days in a row.
Another recent policy, effected on July 31, 2008, establishes particular housing protocols for inmates transitioning between FSP and UCI. One of these is "O-Dorm," a special housing unit at UCI for FSP inmates designated by mental health staff as needing transfer to the in-patient facility at UCI or another in-patient facility as soon as a bed becomes available. Dr. Watkins-Ferrell testified that approximately 114 inmates are housed in O-Dorm, meaning that 114 inmates who had been designated as S-3 at FSP- approximately 15% of the S-3 population- - are awaiting transfer to an in-patient treatment facility. Inmates housed on O-Dorm may not be non-spontaneously sprayed with chemical agents to quell a disturbance or compel compliance with an order. Instead, if the assigned security staff are unable to resolve the situation, security staff who have been specially trained in crisis intervention ("CIT staff') will counsel an inmate causing a disturbance. If the CIT staff cannot resolve the problem, mental health staff are called in to counsel the inmate and if they cannot de-escalate the situation, emergency medical treatment may be ordered. See Doc. 422, Ex. 16 (July 31, 2008 DOC memo establishing O-Dorm).
A second new housing arrangement is "N-Dorm," which is 90-day transitional housing for inmates who are newly readmitted to FSP following release from UCI. Disruptions by
25

inmates housed in N-Dorm are treated by security staff as are those in O-Dorm, except that the decision to call mental health staff is at the option of the CIT staff and the nonspontaneous use of chemical agents is permitted if CIT staff deem it to be appropriate. See Doc. 422, Ex. 16 (July 31,2008 DOC memo establishing N-Dorm). Dr. Watkins-Ferrell also testified that N-Dorm provides inmates with continuity of care because the same mental health team that treated the inmate at UCl's in-patient facility is monitoring the inmate's progress in N-Dorm before the inmate moves to the regular wing at FSP, so if an inmate is not really ready for that transition at the end of his 90 days, his mental health status can be reassessed. Doc. 427 at Tr. 85-86.
Plaintiffs favor these recent changes at FSP, but argue they fall short of providing the level of mental health intervention available at DOC facilities such as UCI, where mental health staff evaluate inmates before any non-spontaneous force is used against them. Plaintiffs contend that because their mental health status had slipped below S-3 at the time they were sprayed, they are entitled to those additional protections afforded to S-4 inmates which ensure that an inmate has the capacity to conform his behavior before nonspontaneous force is used against him to compel his conformance. Plaintiffs therefore argue that their Eighth Amendment rights can only be adequately protected by a policy that provides for mental health staff to visit with the inmates before chemical agents are used non-spontaneously. Mr. Stalder (defendant's corrections expert) testified that such course is not standard correctional practice for inmates in large correctional systems who are not assigned to an in-patient care facility. Assistant Secretary Sapp testified that a protocol that involves mental health consultations with security staff before the use of chemical agents
26

might be a good practice if resources were available to implement it but that on the CM wing at FSP, the presence of mental health staff during an inmate disturbance could endanger staff and compromise correctional staff's ability to regain control of the situation. Dr. Watkins-Ferrell and Dr. Roderick Hall (the former mental health director for DOC), both testified that a practice of bringing mental health providers to cell front during a disturbance would be harmful to the doctor/patient therapeutic relationship. In their view, the inmates' S-status is usually correctly assessed and if mental health providers came to cell front during a disturbance, their judgment would usually be that the use of chemical agents is not contraindicated. The problem with that course, argue Dr. Watkins-Ferrell and Dr. Hall, is that inmates would begin to associate mental health staff with security staff, making the very precarious nature of an incarcerated patient/therapist relationship even more fragile, for what, ultimately, is no good end if security will still be permitted to use chemical agents against the inmates in most cases. Dr. Infante, on the other hand, testified that while she was working at UCI, the usual practice was for mental health professionals to visit inmates side-by-side with security staff when inmates were violating rules and to counsel the inmate right then and there. Dr. Infante testified that the doctor/patient therapeutic relationship was not harmed by the presence of security staff during these sessions and that inmates understood that the doctor was there to try to help them. Doc. 425 at Tr. 257-58. Ronald McAndrew, who served as warden at FSP in 1996-1997, testified that he required mental health staff to counsel with inmates before the non-spontaneous use of chemical agents was permitted and that the number of such uses dropped dramatically during his tenure as a
27

result of this intervention. Doc. 423 at Tr. 90-91.30 Plaintiffs' correctional systems expert, Chase Riveland, testified that many state prison systems he surveyed require mental health intervention before chemical agents are used. Doc. 424 at Tr. 165- 70. Psychiatrist Dr. Burns also supports mental health intervention before chemical agents are used. Dr. Burns, an expert in the delivery of psychiatric services in correctional settings, explained that there are other similar situations (such as parole recommendations, or disciplinary report competency evaluations) when inmates might be tempted to believe that mental health staff are acting as agents of security staff but that mental health staff can explain the situation to the inmate so he understands and accepts it. Doc. 425 at Tr. 73-80. Another alternative, testified Dr. Burns, is to have a mental health professional other than an inmate's usual treater be the one to intercede in these circumstances so the inmate continues to have trust in his on-going relationship with his regular mental health care provider. Moreover, if mental health staff interact with inmates before chemical agents are used, the inmate might voluntarily comply with orders (as they often do at UCI), or the inmate might be deemed incompetent- - both of which would avoid force being applied.
Plaintiffs further contend that the current policies are ineffective in that they rely on security staff to recognize signs of mental illness when some DOC staff acknowledge that even with training, they cannot distinguish between signs that are manifestations of mental
30During McAndrew's tenure, FSP was not designated as DOC's main facility for housing S-3 CM inmates. While there was testimony that the availability of mental health resources has greatly increased since then, so too has the need for such services and the Court therefore recognizes that protocols McAndrew successfully used to diffuse situations may not be available or appropriate at FSP today.
28

illness and those of mere recalcitrance. Additionally, Dr. Hall, a clinical psychologist with over twenty years of correctional experience who served as DOC's mental health director during periods of time when the DOC was focusing on improving its delivery of mental health services, testified that in his experiences and evaluations of other states' systems, security staff should not be trained to serve as adjuncts to the mental health staff because their functions are so discrete. Doc. 427 at Tr. 177.
Plaintiffs are also concerned that the recent DOC policy changes are not permanent. The exception for FSP with regard to the DOC videotaping policy and the recent change in the designation of an open food flap as a basis to use spontaneous force are arguably evidence that any voluntary change in DOC policy (as opposed to one that is judicially enforced) cannot be relied on to remain in place. Additionally, while only one of the remaining plaintiffs is currently housed at FSP and apparently none of them have been recently sprayed with chemical agents, plaintiffs contend that they are subject to being returned to FSP and being sprayed again once the specter of this litigation has ended. The DOC agrees that plaintiffs may be returned to FSP and, presumably, if they engage in disturbances while there, they may be sprayed with chemical agents to compel their compliance. Indeed, during this litigation, just days after the DOC announced that it had no present intention of returning certain plaintiff inmates back to FSP, the DOC transferred one of them back to FSP. See Doc. 253, Ex. A; Doc. 421, Ex. 22 at BATES 2200045. To further support the basis for their concern, plaintiffs put on evidence of occasions on which the new protocols have not been followed and evidence of other inmates who have recently been sprayed with chemical agents, even with the new protocols. However, while the cited
29

context and history of the non-spontaneous use of chemical agents at FSP is relevant, this case is not brought as a class action 31 and does not call for the Court to determine whether the rights of other inmates have been violated or whether DOC policy as a whole is
unconstitutional. Rather, to be entitled to prospective injunctive relief, each plaintiff must show that the DOC has conducted itself in a way that violates his own Eighth Amendment rights. The plaintiffs' individual histories must therefore be examined.
B. Plaintiffs' Histories Jeremiah Thomas is a 36 year old inmate serving a 30 year sentence for second
degree murder, attempted robbery with a firearm, and other charges. Thomas has been diagnosed with schizoaffective disorder bipolar-manic and antisocial personality disorder with severe borderline features and has been housed in the in-patient facility at UCI since July 2003. See generally, Doc. 421, Ex.1 & 2 (Thomas' inmate and medical and mental health files).32 He also has asthma. Thomas has been incarcerated for over fifteen years now and
his DOC records reflect repeated treatment (including periods of involuntary commitment) for mania, behavior control problems, impulse control and substance abuse. These notes
31 Some of the plaintiffs, with other inmates not parties to this suit, filed a class action lawsuit in 2003 for injunctive relief challenging the non-spontaneous use of chemical agents against inmates housed in CM units throughout Florida's correctional system. See Brown v. Crosby, Case No. 2:03-cv-526-FtM-29DNF (M.D. Fla. 2003). Plaintiffs voluntarily dismissed the suit in 2005 shortly after Judge Steele denied a motion for class certification.
32Plaintiffs submitted inmate files for Thomas, McKinney, Echols, Ward and Frazier. Defendants provided supplements to the files for three of the plaintiffs (McKinney, Echols and Ward) that show their activity through July 2008. The Court assumes that Thomas and Frazier remain in the facilities in which they were housed as of the last entry in the files plaintiffs submitted. No party submitted an inmate file for Williams.
30

further reflect that Thomas is periodically non-compliant with his medications, which leads him to decompensate. Thomas' symptoms include auditory hallucinations, impaired thought process, and paranoid delusions and his behaviors while incarcerated have included acute agitation, maniacal banging on his cell door (to the point of breaking his own hand- Doc. 421, Ex. 2 at BATES 0200020), eating his feces, pouring urine on his hands, exhibitionistic masturbation, urinating on his mattress, attempting to cut his penis and repeated suicide attempts. Thomas' file reflects that he has been repeatedly moved among several facilities.
Relevant here, Thomas was transferred from FSP to UCI for inpatient mental health care on January 10,2000 following an incident on January 6, 2000 at FSP in which Thomas, after refusing to obey orders to stop banging on his cell walls and threatening staff, likewise refused to permit nursing staff to medicate him. As a result, five officers entered Thomas' cell to restrain him so that a nurse could administer medication. In the process, officers struck Thomas on his back, forcing his face into a window screen, handcuffed him, pulled him to the ground, applied leg irons, and held him in place while the nurse gave him a shot. The five officers then brought Thomas to the FSP medical staff where he was evaluated and sent to UCI for medical treatment which included receiving stitches to his chin and nose.
On February 3,2000, Thomas was sent back to FSP. He was sprayed with chemical agents four times in the next month, each time for yelling or banging. A DOC psychiatrist later determined (for purposes of related disciplinary proceedings) that Thomas was not mentally competent on at least two of those occasions. On March 2, 2000, officers brought a videocamera to cell front and this "show of force" compelled Thomas to permit restraints to be placed on him so medications could be administered. The next day, March 3, 2000,
31

Thomas was creating a disturbance but a correctional supervisor declined to order the administration of chemical agents because he was aware that chemical agents were ineffective in altering Thomas' behavior except during their immediate application. Thomas was instead escorted to the clinic for evaluation and sent from there to UCI. Later disciplinary proceedings determined Thomas was not mentally competent at the time of the March 3 incident.
On April 11 ,2000 Thomas was again returned to FSP. Two days later, Thomas tried to hang himself in his cell. Medical staff told correctional officers that Thomas could not be sprayed with chemical agents. FSP issued a disciplinary report to Thomas for destruction of property for ripping the towel (that he apparently used to try to hang himself) but the DOC psychiatrist determined he was not competent at the time of the incident. Thomas was sent to UCI on April 17, 2000 where he again attempted suicide. Thomas remained at UCI for three months, designated as an S-5 during at least part of his stay there, returning to FSP on July 13, 2000. Within hours, Thomas was sprayed with chemical agents because he was screaming profanity at staff and refused orders to stop screaming. During the following twenty-one days, Thomas was sprayed with OC, CS and/ or CN at least seven times, including twice on one day, each time for yelling and banging or kicking in his cell (once he was also throwing feces under the cell door). On August 16, 2000, when Thomas was causing a disturbance in the shower and spit at an officer, officers brought a videocamera to the area and this show of force resulted in Thomas voluntarily submitting to handcuffs without further incident. On August 31, Thomas was admitted to the FSP infirmary for observation after he tried to hang himself. After psychiatric consultation, he was returned
32

to the wing in stable condition. On September 19, 2000, Thomas declared a psychological emergency and cut
himself. Mental health staff were brought to his cell front to counsel with him and Thomas was taken to the FSP clinic on September 20. Thomas agreed to be returned to his wing. He was sprayed with chemical agents later that day and again in the early hours of September 21, both times for yelling and banging in his cell. Mental health staff who saw Thomas on September 21 upon referral from medical staff learned Thomas had not taken his medications for the past two days and noted that he "could be decompensating- - showed poor control of behavior." Doc. 421, Ex. 2 at BATES 0200079. The sprayings continued. On September 23, 24, 25, and 26- - four days in a row, Thomas was sprayed for yelling and banging or kicking in his cell. On September 24, a nurse performing a post-use of force examination noted that Thomas' responses to questions were inappropriate and delusional, he smelled of urine, and his skin was blistering and broken from chemical burns. Mental health staff found Thomas disheveled and hostile and noted that his mood fluctuated with labile effect- - all signs, reports Dr. Burns, that Thomas was experiencing an exacerbation of his schizoaffective disorder. Staff performing Thomas' post-use offorce exams during this time repeatedly noted multiple chemical burns on his body.
On September 27, Thomas was finally removed from his CM cell to the FSP infirmary where medical staff reported that Thomas suffered first to third degree burns on his back, abdomen, arms, elbows, and buttocks. The severity of his burns prompted medical staff to consider sending him to a special burn treatment facility. On September 29, 2000 Thomas was sent to UCI's in-patient care unit where he remained for over three years. During that
33

time, Thomas remained in a crisis stabilization unit for over six months and Dr. Infante testified that "it seemed like forever" before she was able to stabilize Thomas. Doc. 425 at Tr. 252. Dr. Infante testified that Thomas suffers from one of the most difficult diagnoses that mental health professionals treat, schizo effective disorder, bipolar type, which causes him to respond to internal stimuli and become delusional while maintaining a very high
energy level alternating with periods of depression. kL. at 245-46. She said Thomas was
loud and belligerent and it was difficult for her to assess whether his behaviors were caused
by his psychosis or whether they were a schizo effective induced mania. kL. at 246. Further
complicating his treatment, the stabilizing psychotropic medications Thomas was prescribed cause internal restlessness which, in Thomas' case, led him to make incessant noise, sing,
or tap. kL at 248-49. Dr. Infante also testified that Thomas, like some other inmates, would
sometimes stop taking his psychotropic medications to experience the "high" that comes on
as the illness takes over. kL. at 246-47.
On June 18, 2003 (during a period of time Dr. Infante was not working at UCI), Thomas was transferred back to FSP. On July 20, 2003, Thomas was sprayed with chemical agents for creating "a minor disturbance" on the wing by kicking his cell door, cursing at staff and refusing orders to cease. Doc. 421, Ex. 1 at BATES 0100260. Two days later, Thomas was sprayed with both OC and CS for again creating "a minor disturbance" on the wing by kicking his cell door, cursing staff and refusing orders to cease. Doc. 421, Ex. 1 at BATES 0100272. Thomas was then returned to UCI on July 25,2003 where he remains today. While at UCI, Thomas has on occasion been cited for kicking his cell door and yelling but the record shows that he sometimes will voluntarily submit to restraints which
34

allow medical staff to administer medication. The warden reviewed a November 2003 incident where this sequence occurred and noted there was "excellent [coordination] between the Medical and Security staff to resolve an issue." Doc. 421, Ex. 1 at BATES 0100284. However, as recently as March 2008, when Thomas threatened to hang himself, officers had to conduct a cell extraction when Thomas refused to voluntarily submit to handcuffing. Doc. 421, Ex. 1 at BATES 0100289-90.
Plaintiffs' toxicology expert, Dr. Stopford, examined Thomas and reviewed his file, reporting that Thomas' exposures to OC, CS and CN caused him to suffer from second degree burns, although sometimes these were exacerbated because Thomas refused (out of fear Thomas reported) to leave his cell to shower. Dr. Stopford found Thomas' asthma was aggravated from the exposure to chemical agents and noted Dr. David Frank, a DOC psychiatrist, stated that the use of chemical agents could aggravate a pre-existing mental illness.
In 2005, psychiatrist Dr. Burns, plaintiffs' correctional mental health expert, also interviewed Thomas and reviewed his file. She found that even though Thomas was receiving mental health treatment at UCI, he continued to experience active psychotic symptoms, including auditory hallucinations, thought disorganization and delusions. Dr. Burns reported that Thomas is "terrified of even a remote possibility of transfer back to FSP," but she recognizes that UCI is a treatment facility whose mission is to stabilize and treat inmates for ultimate return to their sending facility. Doc. 421, Ex. 49 at BATES 4900021. Indeed, the DOC's Consent to Inpatient Mental Health Care form advises inmates that if they are transferred to an in-patient treatment center, "the length of stay in inpatient care will
35

depend upon how quickly [the inmate's] condition improves, but is usually no longer than four weeks in a Crisis Stabilization Unit [such as the S-5 facility at UCI], three months in a Transitional Care Unit [such as the S-4 facility at UCI], or four days in a permanent institution infirmary [such as the FSP infirmary]." See. e.g., Doc. 421, Ex. 3 at 0300078, Ex. 12 at BATES 1200062. Thus, the goal of Thomas' treatment at UCI remains to allow him to be returned to FSP.
Michael McKinney, is a 39 year old inmate serving a life sentence (and other lesser sentences being served consecutively) for first degree attempted murder (and other lesser offenses). See generally, Doc. 421, Ex. 3 &4 (McKinney's inmate and medical and mental health files); Doc. 422, Ex. 5 (McKinney's supplemental medical, mental health, and security files through July, 2008). McKinney was incarcerated in various DOC facilities between the ages of 16 and 19 and he began serving his current sentence in 1989 at age 20. A DOC psychological screening report from the age of 16 showed McKinney had marginal intellectual functioning and propensities for anger and anti-social behaviors. The psychologist predicted that as an inmate, he could be very difficult to handle because of his volatile tendencies. And indeed, by 2007, McKinney had over 320 disciplinary reports, a record of behavior which a psychological assessment team termed "pathological." Doc. 421, Ex. 4 at BATES 0400133. McKinney has a history of self-injurious behavior over his term of incarceration, including several drug overdoses, episodes of head banging, repeated selfinflicted lacerations, and setting fires in his cell. He has been diagnosed at various times as having an adjustment disorder with depressed mood, antisocial personality disorder, and major depression with recurrent psychotic ideations.
36

McKinney was housed in various DOC facilities (including FSP) between 1989 and 1999, when he returned to FSP. DOC records show McKinney was non-spontaneously sprayed with a combination of OC and/or CS chemical agents at FSP four times in 2001 (earlier records are not in the file). The use of force forms show that on each of those occasions, McKinney was sprayed for causing a disturbance on the wing by yelling and/or kicking and beating his cell door. The same behavior resulted in McKinney being sprayed six times at FSP in 2002 (including twice on the same day) until he was transferred to the FSP infirmary with a diagnosis of major depression after he tried to hang himself in his cell on August 21,2002. From the infirmary, McKinney was sent to UCI on September 16, 2002 where he was treated with medication and therapy and then transferred back to FSP on December 16, 2002. He spent December 18 and 19 in the FSP infirmary in December with a diagnosis of being suicidal and homicidal, bipolar and psychotic and he returned to the FSP infirmary on December 22 and remained there for eight more days. Three days later he returned to the FSP infirmary and stayed for the month of January before returning to the wing. On March 5, 2003, McKinney was sprayed with OC and CS on two separate occasions for yelling obscenities and kicking and beating on his cell door. The next day, on doctor's orders, officers used force to restrain McKinney who was exhibiting bizarre behavior by standing on his sink and jumping off. He was brought to an FSP infirmary isolation cell where he remained for a week until being transferred to UCI on March 13, 2003. At UCI, McKinney was designated as an S-5 and was treated with medication and therapy for the next several weeks. On May 25,2003, while still at UCI, McKinney set a fire in his cell. He was in and out of the UCI infirmary for several days and on May 29, 2003, chemical agents
37

were used on McKinney at UCI because he was causing a disturbance in his cell by yelling and screaming. 33 Doc. 421, Ex. 3 at BATES 0300031-32. McKinney was returned to FSP
on June 6, 2003. On June 16, 2003 and on July 15, 2003, McKinney was sprayed with OC
and CS at FSP for yelling obscenities at staff and kicking and/or beating on his cell door.
The next day he was sent to the FSP infirmary and from there, he was transferred back to
UCI for psychiatric observation and treatment of depression where he remained until August
7, 2003. Treatment notes for July 31, 2003 reflect that McKinney reported he felt he was "doing well coping while [at UCI] but does not know how he will cope at FSP as he believes
he has to be on guard against unwarranted gassings." Doc. 421, Ex. 4 at BATES 0400053.
After his August 7,2003 return to FSP, McKinney was sprayed with OC and CS on September 6 and he declared a mental health emergency on October 6, 2003, telling a
psychological specialist he was going to have to hurt himself. The next day, McKinney threw
feces at a staff member and was sprayed with chemical agents (both OC and CS) when he
refused to submit to restraints so officers could search his cell; officers eventually performed
a cell extraction to remove McKinney. Later that same day, McKinney was sprayed with OC
and CS for yelling and kicking in his cell and again, four days later, McKinney was sprayed
33The non-spontaneous use of chemical agents to quell such a disturbance at UCI appears, from all testimony, to be a departure from the standard practice at UCI. Neither the correctional staff use of force reports nor the mental health treatment notes show whether mental health professionals spoke with McKinney to try to resolve the situation without resorting to the use offorce. McKinney's UCI in-patient treatment records for May 29, 2003 state that McKinney was making threats to hurt himself. Doc. 421, Ex. 4 at BATES 0400043. It is not clear whether these threats were made in conjunction with (or perhaps were even the content of) the "yelling and screaming" reported by security officers, which justified the use of force. Doc. 421, Ex. 3 at BATES 0300031.
38

with OC and CS for yelling and kicking his bunk. Two days later, McKinney was brought to the emergency room at FSP due to injuries suffered after banging his head on his steel bunk and cell door. He was then admitted to UCI where he accused FSP correctional staff of spitting in his food. Two weeks later, he returned to FSP but was admitted to the emergency room the following day after jumping down a flight of eight stairs, head-first. He received a laceration to his head which required seven staples to close and he reported that he wanted to kill himself. It appears McKinney was discharged to the wing on November 3, 2003 and remained there without incident until February 8, 2004 when he was sprayed three days in a row for yelling and cursing at staff and banging and kicking his cell door.34 He was sprayed again on February 24, 2004 and again on March 9, 2004 and outpatient therapy reports from February and March note he was exhibiting a poor adjustment to confinement and was being referred to psychiatry for assessment. Following many of the occasions on which McKinney was sprayed with chemical agents, he refused to be seen by medical staff for a post-use of force examination and refused to take a decontaminating shower (which regularly earned him a disciplinary report, in addition to the ones received for causing the initial disturbance and for disobeying orders to stop causing the disturbance).
McKinney's records continue in this fashion. On June 15, 2004, McKinney was sprayed at FSP for the same types of behaviors and was moved into the FSP infirmary the next day, where DOC psychiatrist Dr. Philip Springer reported that although McKinney's
34There is a use of force report for the February 10, 2004 incident (see Doc. 421, Ex. 3 at BATES 0300051) but this use of chemical agents is inexplicably not included on the list of use of force incidents from FSP gathered from the Inspector General's database (see Doc. 421, Ex. 38 at 3800010).
39

behavior had been improving, he had now been in another altercation with security and showed little insight into his "episodes of rage." Doc. 421, Ex. 4, BATES 0400076. McKinney consented to receiving in-patient treatment saying, "I can't help myself." Doc. 421 , Ex. 3 at BATES 0300078. However, Dr. Springer noted that McKinney had been treated as an S-3 throughout his period of incarceration35 and that, despite his fatigued appearance, agitated behavior, angry mood and affect, skewed perception, and poor insight and judgment, McKinney retained positive and healthy thoughts. Doc. 421, Ex. 4, BATES 0400076. McKinney remained in the infirmary for five days before Dr. Springer determined he should be returned to security. McKinney was sprayed four hours later for kicking and banging his cell door and yelling obscenities at the staff. He was sprayed again the next day and was transferred to UCI for one week before being sent back to FSP. He was sprayed again four times in the first six months of 2005 and was transferred back and forth from UCI twice more during that time. Records show that on May 13, 2005, McKinney consented to being prescribed Paxil (a psychotropic medication). Doc. 422, Ex. 5 at BATES 2131. On July 20,2005, McKinney returned to FSP and was sprayed with chemical agents three more times over the next twenty-two months.
A psychologist who met with McKinney after he declared a psychological emergency on November 30, 2006 noted that although McKinney became "increasingly angry and belligerent" during their meeting and "burst into screaming curses and threatened to 'do
35Dr. Springer's assessment is inconsistent with records from McKinney's time at UCI where, for example, he was designated as an S-5 on March 13, 2003. See Doc. 421, Ex. 4 at BATES 0400038.
40

something' to get out of his cell," the psychologist assessed McKinney as being "more angry about not getting his way than a psych emergency" and therefore returned him to the wing. Doc. 422, Ex. 5 at BATES 2733-34. On May 25, 2007 McKinney went back to UCI and records show on May 30, 2007, McKinney consented to being prescribed Prozac (a psychotropic medication). Doc. 422, Ex. 5 at BATES 2133. McKinney stayed at UCI for seven weeks and a July 2, 2007 treatment note states he was not on any medication, although he was designated as an S-4. Doc. 422, Ex. 5 at BATES 2179. Four days later, McKinney came back to FSP for three weeks, during which time he refused to leave his cell to participate in mental health group therapy. On July 25, 2007, McKinney refused to remove his arm from his food flap and was sprayed twice with OC and finally with CS before complying with the order to remove his hand.36 As on many past occasions, McKinney refused to leave his cell for a decontaminating shower and refused to be seen for a post-use of force medical exam. Later that day after receiving his evening meal, McKinney again
refused to remove his arm from his food flap and he was again sprayed with ac. For the
second time that day, he refused to leave his cell for a decontaminating shower or to be seen by medical personnel. The following day, an FSP psychologist tried to meet with McKinney at his cell front on two occasions but McKinney refused. The psychologist noted that security personnel reported that
361n July 2007, an inmate's refusal to remove his arm from a food flap did not justify the spontaneous use of force. Before trial, in connection with earlier proceedings, the Court watched and listened to the videorecording of this incident, which is now also included in the record on CD-rom. See Doc. 422, Ex. 8.
41

the usual next day [post use of force] evaluation could not be expected as [McKinney] was still considered a security risk due to hostile acting out behavior. Security again reported that inmate [McKinney] remained easily agitated with a negative, 'I don't care' type attitude this afternoon. Security recommended return to complete the [post use of force] assessment tomorrow7/27/08 [sic]. Security officer reported that cell-front stimulation appeared to exacerbate acting out behavior and oppositionaldefiant attitude at this time.
Doc. 422, Ex. 5 at BATES 2191. Treatment notes from the following day report that
McKinney was on no medication, did not appear to be in crisis and had no evidence of
psychosis, but his use of force history indicated that his ability to function adequately in his
current environment appeared problematic and he would therefore be referred to a
supervisor for further consideration of an appropriate level of care. Doc. 422, Ex. 5 at
BATES 2192. Finally, on July 31, 2007, and apparently only after Dr. Hall reviewed
McKinney's file for purposes of this case and asked DOC's mental health director to
intercede, McKinney was transferred to UCI. See Doc. 427 at Tr. 132-33. The mental health
team report justifying the emergency referral states that McKinney
presents [with] 5 use offorce incidents [within] the past 3 months [and] six within the past year. [Inmate] refuses case management consist[e]ntly [and] [r]efuses med[ications] for the past 2 y[ea]rs. Has a blanket refusal for group therapy. 26 [disciplinary reports] in past 2 y[ea]rs. 5 [disciplinary reports] in past 6 mo[nths]. 3 uses of force in past 2 weeks.
Doc. 421, Ex. 4 at BATES 0400117. The referral notes further explain that McKinney has
made a poor adjustment to incarceration noted by having set fire to his cell twice in 2005,
and having made threats of self injurious behavior three times in 2005. When coupled with
his history of hundreds of disciplinary reports, he was assessed as having "very poor impulse
42

control/anger [management] skills." Doc. 421, Ex. 4 at BATES 0400117. The referral further states that on examination, McKinney's thought processes were clear and coherent but he nonetheless had evidence of a formal thought disorder, marked by suspicious thoughts and paranoid features, personalizing and magnifying real and imagined insults, expecting malevolent reactions from peers and others and suspecting plots at times. McKinney was noted as being able to identify coping skills but as being unable to implement them. Doc. 421, Ex. 4 at BATES 0400118. Dr. Hall testified that while none of McKinney's mental health evaluations indicated any acute impairment that warranted immediate referral to an inpatient unit, McKinney's long, established pattern of repeated conflicts, disciplinary reports and refusals to participate in treatment indicated that "a more structured and intensive setting" was needed to address McKinney's health care needs. Doc. 427 at Tr. 132.
McKinney has remained at UCI since July 31,2007 and while there, he has continued to engage in combative behavior, accumulating additional disciplinary reports for fighting, and disobeying orders. At UCI, however, such incidents do not generally result in his being sprayed with chemical agents.
Dr. Burns interviewed McKinney and reviewed his file in 2006 while he was housed at FSP. She found him to be paranoid and suspicious and he confided in her that he did not trust medical or mental health staff and therefore refused to take medication they prescribed. She recounted his history of disciplinary reports and repeated episodes of being sprayed with chemical agents, which she found exacerbated his psychiatric condition and resulted in him being hesitant to call for help, even when he knows he needs it. Dr. Burns testified that McKinney was likely symptomatic on occasions when he was sprayed but that security
43

personnel, whose training teaches them to recognize only bizarre or particularly unusual behaviors, would likely fail to appreciate that an inmate like McKinney was exhibiting acute symptoms of serious mental illness. Instead, security staff interpret symptoms of mental illness as "bad and disruptive" behavior, which is treated with force rather than with mental health intervention. Doc. 425 at Tr. 175-80. Dr. Burns further testified that inmates whose mental illness symptoms include paranoia and fear are often afraid of security personnel, especially when security officers have just sprayed them with chemical agents, and such inmates are therefore reluctant to leave their cells (which requires an inmate's hands to be cuffed behind his back) for a decontaminating shower or for a post-use of force exam. Dr. Stopford, plaintiffs' toxicology expert, was unable to examine McKinney because McKinney was upset at the time and refused to be evaluated. However, Dr. Stopford offered the opinion that repeated sprayings, and spraying without proper decontamination (both of which regularly occurred with McKinney), increase the degree of pain and skin burns associated with being sprayed with chemical agents.
Antonio Ward is a 35 year old inmate who has been incarcerated in DOC facilities since 1998 and is serving a fifty year sentence for robbery with a deadly weapon. Ward was treated by DOC mental health care providers for psychological problems during an earlier term of incarceration and has been diagnosed with depression and treated for suicide prevention. See Doc. 421, Ex. 11 & 12; Doc. 422, Ex. 6. Relevant here, Ward was transferred to FSP on March 24, 2004. Two months later, when Ward refused orders to stop kicking his cell door and yelling obscenities at staff, security officers sprayed him with OC and CS. A mental health evaluation the following day found Ward had a depressed mood
44

and a poor adjustment to his new setting and did not need a referral for more intensive treatment, but should see a psychiatrist. Doc. 421, Ex. 12 at BATES 1200046. The next day, Dr. Springer found Ward was having difficulty with security and should continue to have access to mental health care. Ward was seen by mental health professionals during May and June and on July 1, 2004, Ward was again sprayed with chemical agents for refusing to stop banging on his cell door and cursing at staff. Ward refused to leave his cell for a post-use of force examination or a decontaminating shower. An emergency medical technician advised Ward of the health consequences of his failure to take a shower or permit an exam, cautioning him that it "may cause future health problems even untimely death." Doc. 421, Ex. 11 at BATES 1100029. Ward received disciplinary reports in November 2004 and March 2005 for causing a disturbance37 but was not sprayed on those occasions. He was seen as a mental health emergency on March 31,2005. On April 5,2005, Ward was sprayed with DC and CS for causing a disturbance by kicking and beating on his cell door and yelling and cursing at staff. Ward again refused a shower and post-use of force exam and received three disciplinary reports for the incident. The next day Ward was again seen at FSP as a mental health emergency, diagnosed with dysthymic disorder and transferred to UCI the following day where he was initially put on a fifteen minute suicide watch but, upon evaluation, was deemed not to be in acute distress despite his agitated and depressed state. Ward was returned to FSP five days later on April 11 , 2005 with a note that he should
37Ward contested this assessment, claiming that he was not causing a disturbance and that security officers had falsely accused him of doing so. Ward filed similar statements related to most of the subsequent disciplinary reports in the record.
45

consider mental health counseling and medication. He was seen at FSP as a mental health emergency the next day and, on April 14, 2005, three days after Ward returned to FSP and one day after Ward was treated as a mental health emergency, Ward was observed in his cell with a weapon that he apparently fashioned from a piece of metal from his foot locker. He refused orders to relinquish the weapon. A psychological specialist was brought to Ward's cell to counsel with him but Ward still refused to hand over the weapon. Security staff sprayed Ward with OC before he finally relinquished the weapon and agreed to be handcuffed so he could take a decontaminating shower and have a post-use of force examination, which revealed self-inflicted scratches on his wrist. Ward received further mental health treatment at FSP later in April and in May and June. On July 14, 2005, Ward was sprayed with OC and CS for causing a disturbance in his cell by kicking and beating on his cell door and yelling obscenities at staff. Ward refused a decontaminating shower and post-use of force exam. Mental health records from an evaluation the following day noted that Ward's moderate symptoms could continue to be managed on an outpatient basis. The counselor noted that Ward believed security officers sprayed him the previous day as reprisal for his having recently met with lawyers in the Osterback case. Doc. 421, Ex. 12 at BATES 1200098. Ward remained at FSP apparently without further incidents of being sprayed with chemical agents, although he did continue to receive disciplinary reports. On May 4, 2006 Ward attempted to jump off a second floor but a year later, his S-status was downgraded to S-2. By October 2007, however, Ward's mental health had again deteriorated and he was referred to UCI with a diagnosis of depression. As of June 9, 2008, Ward remained housed at UCI as an S-4 and continues to engage in behavior that results
46

in disciplinary reports. Dr. Burns' review of Ward's file and her interview with him in May of 2006 revealed that he was not reporting and did not exhibit any current psychological distress or acute symptoms, even though he had stopped taking antidepressant medications several months earlier. She did report, however, that Ward suffered anxiety and fear when sprayed with chemical agents and that he has intentionally harmed himself as a result of his anger, frustration and feelings of powerlessness. Doc. 421, Ex. 49 at BATES 4900048. Dr. Stopford's examination of Ward and review of his file in 2005 led Dr. Stopford to conclude that Ward had a history of asthmatic symptoms and had bronchospasms at the time Dr. Stopford examined him. Dr. Dushoff reviewed Ward's file and found he never suffered a burn. Doc. 427 at Tr. 25. Dr. Hall noted that Ward's refusal to access available mental health services could itself be a sign of mental illness, but found that, in Ward's case, Ward appeared to have been competent at the time he made those decisions. Doc. 427 at Tr. 135-36.
Paul Echols is a 27 year old inmate incarcerated since 2001 in DOC facilities where he is serving life sentences for carjacking and robbery with a deadly weapon. Echols has been diagnosed with adjustment disorder with anxiety and depressed mood, depressive disorder, and dysthmia. See generally, Doc. 421, Ex. 9 & 10; Doc. 422, Ex. 4. He was admitted to a DOC in-patient mental health facility for treatment in January 2003 after swallowing staples and eating feces. After moving back and forth between several facilities, including UCI, Echols was transferred to FSP in March 2003 where he has remained except for a two week stay at UCI in the fall of 2003 after Echols attempted to hang himself upon learning of the death of his young daughter. While housed at FSP, Echols has been sprayed
47

with chemical agents ten separate times for yelling and banging on his cell door. On May 29 and 30, 2004, Echols was treated for multiple second degree burns after being sprayed with chemical agents on May 2838 and medical staff reported areas of blistered red skin and serious drainage from his wounds for which he was prescribed twice daily treatment with silvadene ointment. 39 However, on June 10, 2004, medical personnel told security staff there was no contraindication against the use of chemical agents and Echols was sprayed again for yelling and banging in his cell. A mental health evaluation the following day noted that although Echols continued to experience symptoms of depression a few times per week, he remained at S-2 status, was not on any medication, and showed excellent participation in group and individual therapy sessions. Doc. 421, Ex. 10 at BATES 1000037. Echols'mental health deteriorated somewhat in 2007 and his mental health status was re-designated as S3, however, the record does not show that Echols was sprayed with chemical agents anytime after December 4, 2006. Dr. Burns interviewed Echols in May 2006 and although she did not report any particularly notable symptoms of mental illness during the interview, she noted that Echols had a history of depressive symptoms for which he was being treated. In addition to the chemical burns, Burns found Echols experienced psychological injuries from being sprayed with chemical agents, including feelings of intense fear and helplessness and, because Echols believes that at least some of the uses of chemical agents were in retaliation
38Echols had refused a decontaminating shower, clean linens or clothing, and had refused to have his cell decontaminated.
39Dr. Dushoff (defendants' burns expert) testified that an infection could not develop this quickly. Doc. 427 at Tr. 26-27.
48

for filing grievances, he now has difficulty sleeping for fear of being attacked with chemical agents without provocation. Dr. Stopford reported that Echols' second degree burns were a direct result of exposure to chemical agents and that the extent of his burns likely increased due to his failure to receive a decontaminating shower.
Reginald Williams is a 49 year old inmate incarcerated in DOC facilities since the age of 19 for service of a life sentence and is currently housed at Santa Rosa Correctional Institution. See Doc. 421, Ex. 49 (Dr. Burns' report on inmate Williams). Williams was sprayed three times at FSP- once in 2001 and twice in 2002. See Doc. 421, Ex. 38 at BATES 3800009. Dr. Stopford reported that Williams developed inflammation of his cornea secondary to his exposure to chemical agents and that he is now at an increased risk of eye effects because of prior chemical injuries to his eyes. Dr. Burns interviewed Williams and reported that he displayed some mild anxiety and difficulty with concentration and becomes fearful and anxious when security personnel come to his cell due to a fear of being sprayed with chemical agents. However, the record does not contain Williams' inmate or mental or medical health records and therefore does not show how long Williams was housed at FSP, why Williams was sprayed, or whether Williams has received any mental health treatment while in DOC facilities. An affidavit prepared by a DOC official states that Williams was designated as an S-1 as of May 2007 and was housed at Santa Rosa. Doc. 421, Ex. 63 at BATES 6300002.
Kelvin Frazier is a 40 year old inmate who has been in DOC custody since 1985 and is serving a life sentence for murder. See generally, Doc. 421, Ex. 17. Frazier was moved to FSP in July of 1992 where he remained until he was moved to a CM unit at Santa Rosa
49

Correctional Institute in October 2002. The record does not show that Frazier has been back to FSP since then. Plaintiffs did not submit the DOC medical or mental health records for Kelvin Frazier. Plaintiffs' expert, psychiatrist Dr. Kathryn Burns, reported that when she interviewed Frazier in 2005, he was not classified by DOC as having a mental illness, he did not take any psychotropic medications, and he had no history of mental illness outside of prison. While Dr. Burns determined that Frazier suffered from occasional nightmares, fearfulness, and anxiety associated with two occasions in 2001 when Frazier was sprayed with chemical agents while at FSP, the record fails to show that Frazier was designated as S-3 at the time he was sprayed in 2001 or at any other time while in DOC custody, or, even absent such a designation, that he was suffering from symptoms of mental illness at a time he was sprayed, or that any mental health provider found him to be suffering from mental illness after he was sprayed. Frazier's inmate file shows he was sprayed on at least one other occasion in 2002 while housed at FSP, but the records do not reveal any mental health concerns related to that incident. Records show that as of May 2007, Frazier was housed at Santa Rosa and was designated as an S-1. Doc. 421, Ex. 63 at BATES 6300002.
II. Conclusions of Law A. Legal Principles
Plaintiffs bring this suit under 42 U.S.C. § 1983 seeking injunctive and declaratory relief40 for violations of their right to be free from cruel and unusual punishment under the
4°Plaintiffs settled and/or dismissed all of their claims for damages. 50

Eighth and Fourteenth Amendments to the United States Constitution.41 The Eighth Amendment, applied to the states through the Fourteenth Amendment, Rhodes v. Chapman, 452 U.S. 337, 344-45 (1981), "embodies broad and idealistic concepts of dignity, civilized standards, humanity, and decency." Estelle v. Gamble, 429 U.S. 97, 102 (1976) (citation omitted). "Generally speaking," however, "prison conditions rise to the level of an Eighth Amendment violation only when they 'involve the wanton and unnecessary infliction of pain.''' Chandler v. Crosby, 379 F.3d 1278, 1289 (11th Cir. 2004) (quoting Rhodes, 452 U.S. at 347).
A two-prong analysis governs Eighth Amendment challenges to conditions of confinement. Hudson v. McMillan, 503 U.S. 1, 8 (1992). "First, under the 'objective component,' a prisoner must prove that the condition he complains of is sufficiently serious to violate the Eighth Amendment." Chandler, 379 F.3d at 1289 (citing Hudson, 503 U.S. at 8). Minimally, the condition must be one that "'poses an unreasonable risk of serious
damage to [the inmate's] future health' or safety." k!..:. (quoting Helling v. McKinney, 509 U.S.
25, 35 (1993)). The risk must be of a kind that is "so grave that it violates contemporary standards of decency." Helling, 509 U.S. at 36. Thus, it must be an "extreme deprivation[]", something far more than the "routine discomfort" which is "'part of the penalty that criminal offenders must pay for their offenses against society.''' Hudson, 503 U.S. at 9 (quoting Rhodes, 452 U.S. at 347).
411n all respects, the plaintiffs have either satisfied the PLRA exhaustion requirements
and/ordefendants waived the requirement that they do so. See 42 U.S.C. § 1997e(a); Docs.
142,253,306,325 (and exhibits thereto). 51

The second component is subjective: "the prisoner must show that the defendant prison officials 'acted with a sufficiently culpable state of mind' with regard to the condition at issue." Chandler, 379 F.3d at 1289 (quoting Hudson, 503 U.S. at 8). "The proper standard is that of deliberate indifference." ~ (quoting Wilson v. Seiter, 501 U.S. 294, 303 (1991)). While a showing of mere negligence is not enough, a prisoner need not show that an official purposely caused him harm or knew that harm would result. Farmer v. Brennan, 511 U.S. 825, 835 (1994). Rather, an official's deliberate indifference is demonstrated where the official "knows of and disregards an excessive risk to inmate health or safety" caused by the denial of humane conditions. ~ at 837. Plaintiffs may demonstrate a causal connection between the officials and the inhumane conditions where a prison's "custom or policy results in deliberate indifference to constitutional rights." Cottone v. Jenne, 326 F.3d 1352, 1360 (11th Cir. 2003) (citation and quotation omitted). Liability based on a custom or policy can result from either a facially unconstitutional custom or policy or from a facially constitutional custom or policy that is implemented in an unconstitutional manner. Goebert v. Lee County, 510 F.3d 1312, 1332 (11th Cir. 2007). To show deliberate indifference based on the latter, the violations must be flagrant, widespread and continuous such that the defendant has actual or constructive knowledge of the pattern. ~ Thus, a policy that can be humanely and properly applied- - one that is facially constitutional- - cannot lead to liability based on a single incident of deprivation. Marsh v. Butler County, Ala., 268 F.3d 1014, 1036-37 (11th Cir. 2001). Rather, liability will only attach where, notwithstanding the otherwise facially constitutional policy, a pattern of unconstitutional conduct is so obvious as to put the official
52

on notice that the implementation of the policy results in constitutional violations. kL.42 See
also, Rivas v. Freeman, 940 F.2d 1491, 1495 (11th Cir. 1991) (finding sheriff was
deliberately indifferent where his policies for confirming suspects' identities resulted in
42Some courts have set forth other formulations of the governing standards for reviewing alleged Eighth Amendment violations where the condition of confinement involves or results in an allegedly excessive use of force. Plaintiffs here pose an interesting question as to whether the deliberate indifference showing for a case such as this additionally requires proof of malicious and sadistic use of force. See Doc. 431. Defendants have not suggested that this is so (see Doc. 433) and, having reviewed the cases plaintiffs cite, the Court finds that the actions here should be measured against the test for conditions of confinement, which requires plaintiffs to show that officials were deliberately indifferent to a substantial risk of harm. While acknowledging that the policy here is directed toward the degree of force permitted to quell a "disturbance," which is often treated as an excessive force claim (and indeed, plaintiffs pled- - and settled- - several such claims against various individual correctional officers), their challenge against the top DOC officials (the only defendants left) is directed to the prison's considered policy that inmates securely housed in their individual cells must abide by the prison rules about excessive noise or face the consequence that non-spontaneous force will be used against them to compel compliance, thus distinguishing this case from those where officers have been required to take action "in haste, under pressure, and frequently without the lUxury of a second chance." Whitleyv. Albers, 475 U.S. 312,320 (1986). Here, the facially constitutional "condition of confinement"- - defendants' use of chemical agents on inmates who refuse to follow orders to stop creating a disturbance- - is, plaintiffs claim, unconstitutional when applied to them because it fails to account for their inability, on account of mental illness, to conform their behavior to comply with the rules. While recognizing that other formulations might exist to analyze such a claim, this seems to be a challenge that can be properly addressed under the Eleventh Circuit's traditional deliberate indifference framework for challenges to conditions of confinement. See, e.g., Goebert, 510 F.3d at 1332 (addressing under deliberate indifference standard whether facially constitutional policy that prohibited inmates from laying down during the day was unconstitutional when applied to pregnant inmate who should have been on bed rest). See also, Chandler, 379 F.3d at 1289-90 (reviewing conditions of confinement case where plaintiffs were seeking declaratory and injunctive relief under traditional two-part objective/subjective standard and requiring plaintiffs to show deliberate indifference on part of defendant prison officials); Coleman v. Wilson, 912 F.Supp. 1282, 1321-22 (E.D. Cal. 1995) (concluding that deliberate indifference, and not "malicious and sadistic," was proper standard to address challenge to prison policy of using tasers and 37mm rubber bullet launchers on mentally ill inmates because policy required deliberation through communication between various levels of staff before force could be used).
53

misidentification of persons who were subsequently arrested and incarcerated without cause where sheriff knew of prior instances of mistaken identity and allowed policy to continue).
If plaintiffs establish that the conditions of confinement violate the Eighth Amendment, they must each further show that the violation caused them injuries. Chandler, 379 F.3d at 1290. Finally, even where an Eighth Amendment violation is proven, plaintiffs will only be entitled to injunctive relief where the Court has a "reasonable expectation" that the violations will recur, and that policy changes implemented since litigation began will not "completely and irrevocably eradicate[ ] the effects of the alleged violations." Hall v. Board of School Comm'rs., 656 F.2d 999,1000-01 (5th Cir. Sept. 21,1981).43 Thus, if plaintiffs prove an Eighth Amendment violation, defendants then bear the burden of proving that the institution will "not return to its former, unconstitutionally deficient state" "absent an injunction." LaMarca v. Turner, 995 F.2d 1526, 1541 (11th Cir. 1993) (citations omitted). Even in cases where the need for injunctive relief is demonstrated, federal courts are "ill equipped to deal with the increasingly urgent problems of prison administration and reform." Turner v. Safley, 482 U.S. 78,84 (1987) (quotation and citation omitted). Such problems are "complex and
intractable" and "not readily susceptible of resolution by decree." kL. (quotation and citation
omitted). Thus, while constitutional rights must be "scrupulously observed," courts should not invoke the "name of the Constitution [as a basis to become] enmeshed in the minutiae of prison operations." Bell v. Wolfish, 441 U.S. 520, 562 (1979). Therefore, any resulting decree must go no further than "target[ing] the existing wrong." LaMarca, 995 F.2d at 1543
43Under Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981), cases decided by the Fifth Circuit prior to October 1, 1981 are binding precedent.
54

(citation omitted). B. Analysis of Plaintiffs' Claims
Plaintiffs attempt to meet the objective component of their cruel and unusual punishment claims by showing that the FSP policy as to the non-spontaneous use of chemical agents subjects them to "extreme deprivations" by spraying them with chemical agents to enforce a prison regulation that the plaintiffs had no capacity to comply with because of their mental illnesses. To establish the subjective component, plaintiffs attempt to show that while the FSP policy may have been facially constitutional, the history of the policy's application demonstrates that officials disregarded the evidence that the policy was resulting in constitution violations because chemical agents were being used against S-3 inmates such as plaintiffs and others who had decompensated and could not follow commands to stop banging and yelling in their cells. Several governing principles must first be established.
First, plaintiffs concede that force may appropriately be used against an inmate to enforce an order where the inmate's compliance is necessary to avoid immediate risk of injury to the inmate or to another person.
Second, credible testimony supports the conclusion that, in a prison environment where dangerous inmates are housed and where visibility into individual cells is limited (such
as the eM wing at FSP), unremitting banging or yelling that an inmate refuses to stop upon
order may be a "disturbance" sufficiently serious as to require that it be quelled by the nonspontaneous use of force because it may, for example, incite other inmates to join in the ruckus or the noise may overwhelm another inmate's request for help.
55

Third, the use of chemical agents as a means of force against a recalcitrant prisoner who refuses to obey an order generally does not, in itself, violate the Eighth Amendment. See Danley v. Allen, 540 F.3d 1298, 1307 (11th Cir. 2008) (holding in context of pretrial detainee's excessive force claim that the use of "pepper spray is an accepted non-lethal means of controlling unruly inmates" and that "[a] short burst of pepper spray is not disproportionate to the need to control an inmate who has failed to obey a jailer's orders").44 This is true even though chemical agents, by their very nature, are "designed to disable a [person] by causing intense pain, a burning sensation that causes mucus to come out of the nose, an involuntary closing of the eyes, a gagging reflex, and temporary paralysis of the
larynx," and, occasionally, "disorientation, anxiety, and panic in the person sprayed." kL. at
1309 (citing cases). Thus, this degree of pain is constitutional because the effects are temporary- - or at least are intended to be.
Fourth, even the temporary pain caused by the use of chemical agents may be constitutionally cognizable when the chemical agents are used unnecessarily. Vinyard v. Wilson, 311 F.3d 1340, 1348 (11th Cir. 2002) (holding that use of pepper spray is excessive force under Fourth Amendment where crime is minor, arrestee surrenders, is secured, is not violent or threatening officer safety); Soto v. Dickey, 744 F.2d 1260, 1270 (7th Cir. 1984) (recognizing that "it is a violation of the Eighth Amendment for prison officials to use mace
44Danley's complaint, which was before the Eleventh Circuit on review of an Order of the District Court denying defendants' motions to dismiss on grounds of qualified immunity, alleged that the chemical agent was "pepper spray." See Danley v. Allyn, 485 F.Supp.2d 1260 (N.D. Ala. 2007). The Court therefore assumes it was OC (the generic name for which is "pepper spray"), which, according to the evidence received at trial, is the most commonly used and least dangerous chemical agent used by the DOC.
56

or other chemical agents in quantities greater than necessary or for the sole purpose of punishmentorthe infliction ofpain") (emphasis supplied); Gunn v. Sullivan, No. 2:04-cv-229FtM-99SPC, 2007 WL 80859, at *4 (M.D. Fla. Jan. 8, 2007) (holding that a jury could find unreasonable and excessive force had been used if inmate, who allegedly suffered shortness of breath just following non-spontaneous use of chemical agents, could prove that he was arbitrarily selected for punishment hours after inmates stopped yelling in their cells). See also, Rhodes, 452 U.S. at 346 ("Among 'unnecessary and wanton' inflictions of pain are those that are 'totally without penological justification."') (citation omitted).
Fifth, even where chemical agents are permissibly used, when the effects are longer lasting or exacerbated by prolonged exposure, inadequate decontamination, or poor ventilation- - something beyond the immediate short term effects of being sprayed with the chemical agent- - the use of chemical agents may pose an unreasonable risk to an inmate's health that is serious enough to trigger inquiry under the Eighth Amendment. Danley, 540 F.3d at 1311. According to the credible testimony at trial, these risks may include burns and the exacerbation or complication of many serious health conditions, including diabetes and various circulatory and respiratory conditions.
Sixth, the evidence at trial established that exposure to chemical agents - - whether used as directed or not - - may exacerbate the psychological condition of mentally ill inmates, with results including increased paranoia, feelings of anger or helplessness, and suicidal ideation, and may adversely effect the ability to treat mentally ill inmates. These psychological effects merit inquiry under the Eighth Amendment. See LaMarca, 995 F.2d at 1544 (holding that district court properly found prison officials "unnecessarily and wantonly
57

inflicted pain upon prisoners by failing to provide them with post-rape psychological or psychiatric counseling"); Strickler v. Waters, 989 F.2d 1375 (4th Cir. 1993) (holding that Eighth Amendment challenge can be met by proof of serious or significant physical or emotional injury); Jordan v. Gardner, 986 F.2d 1521 (9th Cir. 1993) (holding that inmates with history of sexual abuse met Eighth Amendment pain standard warranting injunctive relief when they were subject to "severe psychological injury and emotional pain and suffering" by prison's pat-down search policy); Northington v. Jackson, 973 F.2d 1518 (10th Cir. 1992) (holding that Eighth Amendment claim was stated by allegation that officers caused plaintiff psychological injury by holding gun to plaintiff's head and threatening to shoot); Smith v. Aldingers, 999 F.2d 109 (5th Cir. 1993) (reversing and remanding where district court failed to consider whether fear alone could be an Eighth Amendment violation). See also, Hope v. Pelzer, 536 U.S. 730, 737 (2002) (highlighting "taunting" and "humiliation" as circumstances which contributed to finding that handcuffing petitioner to hitching post "violated the basic concept underlying the Eighth Amendment, which is nothing less than the dignity of man") (quotation and citation omitted).
Seventh, DOC witnesses testified (and DOC policy provides) that except in instances where force is needed to prevent immediate harm to the inmate or another, physical force should not be used to compel compliance against an inmate who, by virtue of his S-4, S-5, or S-6 status, the DOC has determined does not have the mental capacity to follow commands. See Doc. 426 at Tr. 200-01; Doc. 427 at Tr. 186-88; Doc. 421, Ex. 41 at BATES 4100015. This is so because if the inmate cannot understand the command or cannot comply with it, the force simply produces pain, except to the extent the inmate is (in some
58

cases only very temporarily) incapacitated by the force used. See Wilson v. Seiter, 501 U.S. 294, 300 (1991) (explaining that in Eighth Amendment prison cases, "the infliction of punishment" means "a deliberate act intended to chastise or deter"); Hope, 536 U.S. at 737 (holding that punitive treatment levied against a restrained prisoner was unconstitutional gratuitous infliction of wanton and unnecessary pain). The same principle supports the DOC decision that occasionally finds inmates are to be excused from receiving disciplinary reports for their disobedience due to incompetency at the time of the infraction. In these instances, using physical force to compel a mentally ill inmate to comply with a command that he cannot understand or follow due to incapacity "crosses the line separating necessary force from brutality." Siakan v. Porter, 737 F.2d 368 (4th Cir. 1984) (holding prison guards' use of tear gas and other weapons against prisoner in his cell "crossed the line separating necessary force from brutality"); Stewart V. Stalder, No. 05-cv-0416-P, 2007 WL 184892, at *4 (Jan. 19, 2007) (holding plaintiff could state an Eighth Amendment violation if he could prove officials used mace to compel his compliance with an order when they had knowledge that his mental health prevented him from complying). This conclusion is further supported by the lesson of Estelle V. Gamble, 429 U.S. 97, which teaches that the denial of medical care may be cruel and unusual punishment because physical torture or pain without
penological purpose may result from the denial. kL. at 103. So too here because if the DOC
fails to account for an inmate's decompensation, with the result that he is gassed when he cannot control his actions due to mental illness, then the force no longer has a necessary penological purpose and becomes brutality. See also Cook V. Sheriff of Monroe Cty.. Fla., 402 F.3d 1092, 1115 (11th Cir. 2005) (citation omitted) (holding that prisoners have a right
59

"to receive medical treatment for illness and injuries, which encompasses a right to
psychiatric and mental health care,,).45
Eighth, the DOC is aware that an inmate's mental status is subject to change and that
8-3 inmates housed at F8P sometimes decompensate and require transfer to an in-patient
facility. Although security staff are trained to recognize extreme symptoms of
decompensation such as suicidal ideations and self-mutilation and may also recognize
behaviors that are uncharacteristic for a particular inmate, some 8-3 inmates manifest
symptoms of mental illness which are indistinguishable to security staff (and sometimes even
to mental health staff) from behaviors which appear to be willful recalcitrance. That some
inmates are deemed to have been incompetentfor purposes of receiving a disciplinary report
after a gassing further supports this point.
Ninth, the Florida CMA (the legislatively created monitoring body) has warned the
DOC that security staff may be responding inappropriately to mentally ill inmates who may
be suffering from symptoms of their illnesses that are manifested by behaviors such as
yelling, lashing out, or refusing to obey orders. The CMA has urged the DOC to consider
45Thus, here the DOC policy that prohibits the non-spontaneous use of chemical agents against 8-4,8-5, or 8-6 inmates housed in in-patient facilities (except upon doctor's orders) coincides with constitutional minima. To be clear, it has never been the DOC's legal position that it is permissible to spray 8-3 inmates who have decompensated. Rather, its position has been that if mental health staff have properly designated inmates as 8-3s, then those inmates can understand the consequences of their behavior and are capable of following rules and orders. The Osterback decision found that the overall delivery of mental health services in the DOC system met constitutional standards. The DOC position is, essentially, that it need do no more. This case, however, ventures into ground not covered by Osterback- - what happens when officers repeatedly use non-spontaneous force against an inmate whose mental health has slipped below the point where he can control his behavior, despite the label attached by his designation.
60

adopting procedures used by the Federal Bureau of Prisons which bring mental health providers to an inmate's cell for counseling in an attempt to diffuse a situation without the use of force. The American Correctional Association, which sets correctional standards, does not mandate mental health intervention before chemical agents are used against mentally ill inmates, but many other jurisdictions employ those techniques. See Doc. 421 , Ex. 53, 76.
Tenth, DOC staff and officials, including FSP's former warden James Crosby, and others are aware of and have expressed concern about the "frequent flier" phenomenon whereby S-3 CM inmates at FSP are sprayed with chemical agents for behaviors such as yelling and banging and are thereafter deemed to have decompensated, requiring transfer to UCI's in-patient mental health treatment facility where the inmate's mental health is "restored" and he then returns to FSP where the cycle is repeated over and over again.
Based on these principles, plaintiffs could establish the objective component of an Eighth Amendment claim by showing that at the time they were ordered to cease causing a disturbance, they no longer had the capacity to comply, and the chemical agents used against them caused an "extreme deprivation." See Hudson, 503 U.S. at 8-9. To establish the subjective component, plaintiffs must demonstrate that the nature of their mental illnesses, the behaviors they were engaging in that caused them to be sprayed, the substantial risk of serious harm they suffered and their history of transferring between FSP and UCI are all consistent with the history of a DOC policy that has permitted such circumstances, thereby proving that the DOC officials acted with deliberate indifference as to their plight. See Rivas, 940 F.2d at 1495. As this is not a class action, each plaintiff must establish his own claim.
61

As to Jeremiah Thomas, the factual findings outlined above (pp. 30-36, supra) show that his psychiatric diagnoses include schizoaffective disorder bipolar-manic and antisocial personality disorder with severe borderline features, which have been marked by disturbing acts of self-mutilation and maniacal behaviors such as head banging and incessant singing. Between January 10, 2000 and July 25, 2003, Thomas was transferred between FSP and UCI nine times. His stays at FSP were invariably short-lived, ranging from six days to 78 days (including several days spent in the FSP infirmary). Thomas' brief stays at FSP were marked by disastrous and sometimes almost immediate episodes of confrontation with security officers which resulted in Thomas being sprayed with chemical agents on twenty different occasions, sometimes more than once in a single day, often on multiple days in a row, and usually with three separate rounds of chemicals being applied each time. Only one of Thomas' FSP stays resulted in his transfer to UCI without his being sprayed first and that occurred when, during a six day stint at FSP, medical staff determined Thomas could not be sprayed after he tried to hang himself two days after he arrived there (though Thomas' other suicide threats or attempts at FSP did not result in similar precautions).
Each time Thomas was sprayed, he was engaged in unremitting banging or yelling in his cell which security staff deemed to be a disturbance that had to be stopped, by force if necessary. Yet on two separate occasions, Thomas complied with officers' orders when officers brought a videocamera to the area (a technique that was apparently used while Thomas was in the FSP infirmary). On another occasion when Thomas was "causing a disturbance" by "holding a loud conversation with himself," a correctional supervisor refused to approve the use of chemical agents and instead had Thomas escorted to a medical
62

holding cell because he felt chemical agents were "ineffective" when used on Thomas, who the supervisor noted had "a real mental problem" that warranted a referral to mental health for evaluation. Doc. 421, Ex. 1 at BATES 0100079. Indeed, disciplinary proceedings which followed several of Thomas' episodes of yelling and banging for which he was sprayed found Thomas was incompetent at the time, which is consistent with Dr. Burns' and Dr. Infante's evaluations of Thomas that found that his yelling and banging were consistent with symptoms of his severe mental illness and were predictable behaviors for which Thomas became known. See Doc. 421, Ex. 1 at BATES 0100079 (March 3,2000 note from Captain Kelsay that Thomas "should not be permitted to disrupt an entire wing on a continuous basis") (emphasis added).
This history convinces the Court that Thomas was sprayed with chemical agents at FSP for causing a disturbance in his cell by yelling or banging on occasions when he had no capacity to conform his conduct because of his mental illness, thereby demonstrating that the force used crossed the line separating permissible enforcement of prison rules from cruel and unusual punishment. Estelle, 429 U.S. at 103. Plaintiffs have also established that as a result of this treatment, Thomas suffered far more than the "routine discomfort" that is tolerated by society as part of the price a criminal offender must pay for his crime. Hudson, 503 U.S. at 9. For example, Thomas was evaluated by a nurse on September 24,2000 after he had been sprayed twice in two days with chemical agents and she found his skin was blistering and broken from chemical burns, he smelled of urine and was acting delusional. Yet Thomas was returned to his cell where he was sprayed the next day and the day after that as well. By September 27,2000, medical staff found Thomas was suffering first to third
63

degree burns on his back, abdomen, arms, elbows and buttocks of such severity that they considered referring Thomas to a special burn unit for treatment.46 Dr. Infante, who treated Thomas at UCI after his transfer from FSP, placed him in the Crisis Stabilization Unit where S-5 inmates are usually treated for periods of no more than four weeks. Thomas remained in the CSU for over six months, and it "seemed like forever" before Dr. Infante was able to stabilize him. Doc. 425 at Tr. 252.
Plaintiffs have further established that the actions taken by correctional staff in response to Thomas' behavior were consistent with the FSP policies in place at the time. The undisputed evidence (including from DOC's own former mental health director, Dr. Hall) established that an inmate's mental health status is subject to change without cause or notice. Additionally, DOC officials and staff were familiar with the problem of the "frequent flier" phenomenon which gave them notice that the mental health of inmates like Thomas was particularly fragile such that, notwithstanding his S-3 designation, he was especially susceptible to decompensating to an S-4 (or higher) designation. Even absent the known "phenomenon" this repeated inter-facility movement created, Assistant Secretary Sapp testified that FSP officials meet daily to review the previous day's uses of force. Given the frequency with which Thomas was sprayed with chemical agents within such short periods of time, the name "Jeremiah Thomas" had to stand out. Moreover, the recent creation and
461t is immaterial that Thomas may have played a role in the exacerbation of his physical injuries by his failure to submit to handcuffing so he could take a decontaminating shower. If, as the Court has found, Thomas did not have the capacity to follow orders to stop yelling or banging, neither can he be faulted for failing to follow orders to submit to handcuffing to leave his cell for a shower just after officers have sprayed him (usually repeatedly) with chemical agents.
64

filling of O-Dorm, which houses over 100 S-3 inmates who are at FSP awaiting transfer to UCI (and who are not subject to non-spontaneous sprayings), strongly supports the proposition that DOC policies in place before that time failed to address the mental health needs of many of the S-3 inmates at FSP. In the face of this evidence, DOC officials
unreasonably continued to rely on the S-3 designation as a basis to justify using nonspontaneous chemical agents on Thomas whose known history of decompensation indisputably reveals that his S-3 designation did not accurately represent his mental health status at the times he was sprayed.
Thus, plaintiffs have demonstrated that the DOC acted with deliberate indifference to Thomas' physical and psychological health by repeatedly using chemical agents against Thomas for yelling and kicking and banging in his cell- - behaviors which were consistent with the uncontrollable manifestations of Thomas' serious mental illness- - with the result that, instead of compliance, the force used caused Thomas to suffer serious physical injuries and a further deterioration of his mental health.47
Like Thomas, Michael McKinney has a disturbing record of serious mental health
issues coupled with an extraordinary disciplinary history marked by dozens of non-
47 Defendants have again renewed their motion for judgment as a matter of law as to Thomas (and some of the other plaintiffs) on the ground that he lacks standing because he is not housed at FSP and has not been for many years. As discussed above, and as further noted below, defendants have stipulated that Thomas (and the others) are subject to being transferred back to FSP and indeed, the goal of Thomas' treatment at UCI is to restore his mental functioning to a level that he can be returned to an outpatient facility. Assuming Thomas continues to be a management problem warranting CM housing, FSP would be the likely choice as it is the DOC facility designated to house S-3 status CM inmates. Defendants' renewed motion is again denied as to Thomas.
65

spontaneous uses of chemical agents for banging and yelling in his cell at FSP and frequent transfers to UCI (see pp. 36-44, supra). Unlike Thomas, however, whose history of mental illness is noted by some truly bizarre behaviors, McKinney's mental illness is distinguished by a near lifetime of anger and violence against others and himself. When McKinney was only 16 years old, and already in a DOC facility, a prison psychologist accurately predicted McKinney's sad future, noting he would be difficult to handle as an inmate because of his volatile tendencies, anger and anti-social behaviors.
McKinney presents a particularly difficult case. The apparent markings of his mental illness are seemingly indistinguishable from the recalcitrant behaviors security staff attempt to control through the use of non-spontaneous force. On the one hand, the mental health professionals who treated McKinney at FSP regularly found him to be appropriately designated and returned him to the wing. Even Dr. Hall, whose intervention on McKinney's behalf during his review for this case resulted in McKinney being transferred to UCI, continues to believe that McKinney's behavior did not indicate any acute impairment. Rather, testified Dr. Hall, it simply became clear that McKinney required a "more structured and intensive setting" than FSP provides. Dr. Burns likewise found that McKinney's behavior would not likely trigger security staff to question whether he was experiencing acute symptoms of mental illness because, from security's perspective, his behavior was "bad and disruptive." Although Dr. Burns testified that McKinney was "likely symptomatic" on occasions that he was sprayed, mental health providers at FSP failed to see that and continued to assess McKinney as being angry and poorly adjusted rather than acutely mentally ill. McKinney's files show that unless he undertook some particularly self-
66

destructive action that clearly indicated a crisis (like repeatedly banging his head on a steel bunk), mental health providers continued to interpret his behaviors as anger and adjustment problems, rather than as acute and uncontrollable symptoms of serious mental illness.
On the other hand, however, a review of McKinney's incredible disciplinary history, which included frequent non-spontaneous uses of chemical agents while he was at FSP, his regular transfers between UCI and FSP, and his repeated episodes of violence toward himself and others leads the Court to conclude that DOC officials turned a blind eye for McKinney's situation to have escaped much earlier and closer attention. Although the behaviors that finally prompted Dr. Hall to intervene are no different than those other mental health providers at FSP have seen all along, McKinney's history demonstrates that DOC officials ignored the presence of an obvious danger to McKinney's well-being as evidenced by the repeated cycle of transfers between FSP and UCI, the 36 times McKinney was sprayed while at FSP and his numerous violent attempts and threats to injure himself, many of which closely followed the times McKinney was sprayed. Dr. Burns noted McKinney as an example of an inmate who "slip[ped] through the cracks" of the mental health services provided at FSP, even accounting for the additional services more recently provided. Doc. 425 at Tr. 108-09. Moreover, in addition to the temporary physical effects of the chemical agents (which were undoubtedly exacerbated by McKinney's regular refusal to participate in decontamination procedures), the record supports that McKinney suffered lasting psychological injuries from the repeated sprayings. Thus, given the severity of the picture painted by his history of incarceration at FSP, the DOC policy as applied to McKinney resulted in a failure to recognize at an earlier date that something more was needed to treat
67

McKinney than would be available for an inmate with an S-3 designation.48 On this record,
the Court finds the DOC officials acted with deliberate indifference to the severe risk of harm
Michael McKinney faced when officers repeatedly sprayed him with chemical agents at FSP
for behaviors caused by his mental illness.
As to Antonio Ward, the factual findings show that although his mental health has
been somewhat unstable, there is not a pattern linking the uses of chemical agents for
refusing orders to stop kicking and yelling and any marked deterioration in his mental health
status. Mental health professionals who provided Ward with regular treatment during his
time at FSP generally found that he was appropriately housed in an outpatient facility such
as FSP and, unlike Thomas and McKinney, Ward's file does not reflect repeated cycles of
decompensation that would give notice to DOC officials that his S-3 designation was not
accurately capturing the instability of his mental health. The only occasion on which Ward
was sprayed that gives the Court pause is the April 5, 2005 incident, which was couched
48As noted elsewhere in this opinion, the recent Osterback opinion determined that the general delivery of mental health services to inmates housed on CM wings within the DOC system satisfies constitutional standards. 549 F.Supp.2d 1337. Indeed, plaintiffs were at pains to remind the Court that they were not seeking in this case to challenge the mental health classification system used by the DOC. Nonetheless, for Michael McKinney, this system failed to account for his frequent violent episodes of decompensation that rendered him unable to conform his behavior to comply with orders to stop yelling and banging. Indeed, McKinney's case appears to be consistent with an apparent rise in the need for prisons to develop more specialized plans for the treatment of aggressive mentally ill inmates. See, e.g., Gates v. Gomez, 60 F.3d 525, 528 (9th Cir. 1995) (describing "Management of Aggressive Behavior" techniques used by psychiatric prison facilities to manage aggressive behavior); Gaines v. Price, No. 2:00-cv-0372, 2002 U.S. Di.st. LEXIS 3435, at *2 n.1 (N.D: Tex. Mar. 1,2002) (describing "Program for the Aggressive Mentally III Offender," an alternative to administrative segregation for the aggressive mentally ill offender who does not benefit from traditional programs).
68

between two mental health emergencies (one five days earlier and one the day after which resulted in a transfer to UCI). However, this one incident does not persuade the Court that Ward was sprayed with chemical agents at a time that he longer had the capacity to conform his conduct, nor does it cause the Court to conclude that DOC officials were deliberately indifferent to his situation. In addition, Ward has failed to demonstrate that he suffered psychological or physical injuries of a magnitude to warrant constitutional concern. Although Dr. Burns found Ward suffered anxiety and fear when sprayed, it is not clear that his longer lasting symptoms are a result of these incidents. To the extent Ward has any physical injuries, the record does not show that they were exacerbated or created by chemical agents. Thus, Ward has not demonstrated that the sprayings at FSP establish a violation of his Eighth Amendment rights by the defendant DOC officials.
As to Paul Echols, the record fails to demonstrate that he was sprayed with chemical agents at a time that his mental status had decompensated to an extent that he could not control his behavior. While the number of times Echols has been sprayed is unfortunate, the record fails to show a connection with his mental state at the time and therefore no constitutional violation has been proven.
As to Reginald Williams, the lack of evidence as to William's mental health status or the circumstances as to why he was sprayed with chemical agents at FSP preclude finding any constitutional violation on this record. 49
49The Court therefore need not address defendants' renewed motion for judgment as to Williams on standing grounds. See Doc. 433 at 36-37.
69

As to Kelvin Frazier, in their second amended complaint, plaintiffs allege that Frazier suffers from asthma, that chemical agents aggravate his condition, and that correctional officers applied chemical agents to Frazier with malicious and sadistic intent to harm him. While those allegations, if proven, might support a cause of action against correctional officers or even DOC officials, the case that was tried to this Court and the relief plaintiffs seek is limited to matters involving inmates whose mental illness allegedly prevented them from controlling their behavior to accord with prison requirements. Frazier does not fit that category. 50 C. Entitlement to Injunctive Relief
Having found that plaintiffs Jeremiah Thomas and Michael McKinney have demonstrated Eighth Amendment violations, the Court must next determine whether they are entitled to injunctive relief. As noted above, the Court must evaluate whether policy changes implemented since this litigation began would completely and irrevocably eradicate any reasonable expectation that a violation would recur. Hall, 656 F.2d at 1000-01. Defendants bear the burden of demonstrating that an injunction is unnecessary to protect Thomas and McKinney from further violations. LaMarca, 995 F.2d at 1541. Defendants maintain no present intention of returning Thomas or McKinney to FSP and the testimony largely supports a conclusion that inmates housed at FSP under the policies enforced there today,51 are not subject to the recurring cycle of sprayings and transfers. Nonetheless, for
50Defendants' renewed motion for judgment as to Frazier is likewise moot. 51 Many of these were enacted as recently as July 31,2008.
70

several reasons, defendants have failed to carry their burden of proving that an injunction is not necessary.
First, defendants have stipulated that Thomas and McKinney (as with all the other plaintiffs) are subject to being returned to FSP. Indeed, the goal of their treatment at UCI is to restore their mental health to a state that they can manage their behavior in an outpatient facility. Because FSP is both their sending institution and the DOC's designated facility for housing S-3 CM inmates, if they are transferred, FSP is where they would likely be due to go. The return of former plaintiff Eugene Ulrath to FSP a mere sixteen days after the DOC announced it had "no present intention" to return him to FSP further underscores this point. See Doc. 253, Ex. A; Doc. 421, Ex. 22 at BATES 2200045.
Second, if Thomas or McKinney were returned to FSP and a mental health professional recognized that they needed to be transferred back to UCI, the transitional housing created on O-Dorm would prevent them from being sprayed, but the N-Dorm housing, where inmates spend a 90 day transition period upon arrival at FSP, still leaves it to the discretion of security staff to determine whether to call mental health for consultation. Although the security staff who come to N-Dorm are now trained in crisis intervention techniques, that training does not transform them into mental health professionals capable of distinguishing between behaviors that are merely recalcitrant (such as yelling because food is cold) and those that are signs of acute mental illness (such as yelling at auditory hallucinations). Importantly, the CIT trained staff do not have access to an inmate's mental health records, as would a mental health professional, and are therefore not able to review an inmate's history as a tool to assist in appropriately evaluating the situation. Moreover, Dr.
71

Hall testified that security staff are not able to perform the functions of both security and mental health services.52 Thus, if Thomas or McKinney did not display symptoms
recognizable to security staff as acute illness, they would be subject to being sprayed with
chemical agents for a refusal to stop yelling and banging in their N-Dorm cells. If Thomas
or McKinney made it through the 90 day N-Dorm transition period and returned to the CM-
wing, they would be subject to the same conditions as when they were housed there
before,53 except that the post use of force mental health evaluation now in place would
hopefully trigger closer scrutiny if they were sprayed on repeated days. Thus, the Court
cannot say that the policy changes at FSP with regard to mental health treatment, though
salutary, would protect Thomas and McKinney from being sprayed if their mental illnesses
again prevented them from complying with orders to stop yelling and banging in their cells.
Moreover, even assuming arguendo that these new DOC policies would sufficiently
protect Thomas and McKinney from repeated Eighth Amendment violations, the history of
policy changes at FSP leaves the Court with little assurance that any changes there are
52To further illustrate this point, Dr. Burns noted that the use of force reports prepared by security staff usually summarized events, remarking only that an inmate "was yelling," to indicate that an inmate was causing a disturbance that needed to be quelled, whereas a mental health provider seeing the same inmate moments later would note, for example, that an inmate "was yelling that he was Hitler." Doc. 425 at Tr. 177-81. Dr. Burns explained that because security staff are not mental health professionals, they are simply not trained to
listen for and document behaviors that might signal mental health decline. kL.
53Notwithstanding the "Osterback training," unless an inmate is exhibiting bizarre behaviors or behaviors that are unusual for that inmate, he is presumed to be capable of conforming his conduct and will be subject to a use of force for causing a disturbance if he cannot. Sergeant Musselman, who received the Osterback training, testified that he is not able to distinguish between recalcitrance and acute signs of mental illness.
72

permanent. For example, even though the DOC issued at least three memos between July 20, 1999 (three days after the death of Frank Valdes) and September 8, 1999 regarding the need to videotape all uses of force, by October 26, 1999, FSP had secured an exception to that policy such that videotaping of the non-spontaneous administration of chemical agents at FSP was no longer required. Doc. 421, Ex. 35 at BATES 3500016. This demonstrates that even where a system-wide policy is in place, institutional exceptions can be made. In addition, nurse Tina Battles testified that the former FSP practice of having mental health staff provide medical staff with a list of at-risk inmates was abandoned with a change of wardens. Likewise, former warden McAndrew gave testimony as to policies regarding mental health intervention that were apparently abandoned when McAndrew left. Furthermore, during the course of this litigation, the way security historically viewed an open food flap unexpectedly changed from an incident meriting only the non-spontaneous use of force to one allowing an immediate use of force. This policy change was effected by verbal communication among the staff. While the Court is not questioning the bona fides of that particular decision nor the manner in which it was conveyed, it nonetheless demonstrates that the policies are fluid. 54 Finally, DOC has not stated that the recent policy changes are permanent.
For these reasons, the Court finds defendants have failed to carry their burden of demonstrating that an injunction need not issue. Defendants are to be provided with an
54The Court is also mindful that some of the recent positive changes with regard to mental health treatment of inmates were apparently only undertaken in response to the Osterback litigation (and perhaps this litigation).
73

opportunity to frame appropriate terms of an injunction in favor of Jeremiah Thomas and Michael McKinney to which these two plaintiffs shall be afforded a chance to respond before the Court rules on the terms. See 18 U.S.C. § 3626(a)(1).
III. Conclusion This case has shown that there is disagreement among both correctional and mental health professionals concerning the difficult issue of how mentally ill inmates can properly be disciplined. There are those who think that DOC's policies in this regard (even as recently reformed) are unenlightened; others view them as acceptable. However, the Court is keenly aware that it is not the Court's function to determine correctional best practices. Rather, the only question presented here is whether the inmates who brought this lawsuit and proceeded to trial have demonstrated that the repeated chemical sprayings they received pursuant to the DOC's poliCies at Florida State Prison violated the Eighth Amendment. Based on the law and the evidence, the Court concludes that the DOC's policies as applied to Jeremiah Thomas and Michael McKinney resulted in violations of their Eighth Amendment rights. The DOC officials must therefore be enjoined from doing so again. Plaintiffs Antonio Ward, Paul Echols, Reginald Williams and Kelvin Frazier have not proven an Eighth Amendment violation. Accordingly, it is hereby ORDERED: 1. Judgment will be entered in favor of defendants Walter McNeil and Randall Bryant and against plaintiffs Antonio Ward, Paul Echols, Reginald Williams and Kelvin Frazier.
74

2. Judgment will be entered in favor of plaintiffs Jeremiah Thomas and Michael McKinney and against defendants Walter McNeil and Randall Bryant.
3. The Clerk is directed to reserve entry of judgment until further Order to follow once the terms of an injunction are settled.
4. The parties are directed to confer for the purposes of attempting to reach an agreement on the proposed terms of an injunction. No later than February 10, 2009 defendants shall submit their proposal, indicating whether it is one to which plaintiffs have agreed. In the event the parties are unable to agree to terms, plaintiffs shall be given until February 24, 2009 to submit their objections to defendants' proposal.55 Absent extraordinary circumstances, no extensions of these deadlines will be given.
DONE AND ORDERED at Jacksonville, Florida this 9th day of January, 2009.
T1~c4~
United States District Judge
s. Copies: counsel of record
55Any party may request a hearing on this issue.
75

 
 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA JACKSONVILLE DIVISION

JEREMIAH THOMAS, et al. Plaintiffs,
vs. WALTER A. McNEIL, et al.,
Defendants.

Case No. 3:04-cv-917-J-32JRK

FINAL JUDGMENT AND FINAL INJUNCTION IN FAVOR OF PLAINTIFFS JEREMIAH THOMAS AND MICHAEL MCKINNEY AND AGAINST DEFENDANTS WALTER MCNEIL AND RANDALL BRYANT
On January 9, 2009, following a five day jury trial, the Court entered extensive Findings of Fact and Conclusions of Law (Doc. 434) which concluded that “the [Florida] DOC’s [Department of Corrections] policies [on chemical sprayings] as applied to [plaintiffs] Jeremiah Thomas and Michael McKinney resulted in violations of their Eighth Amendment rights.” Doc. 434 at 74.1 The Court found that the defendant DOC officials acted with deliberate indifference to the severe risk of harm to plaintiffs Thomas and McKinney when DOC officers repeatedly sprayed plaintiffs with chemical agents for behaviors which were caused by their mental illnesses and over which they had no control. The Court held that injunctive relief was required to redress these Eighth Amendment violations.
The Court directed the parties to confer in an attempt to reach an agreement on the proposed terms of an injunction and also asked the defendant DOC officials to submit their
1The Court found insufficient evidence that the four other named plaintiffs suffered Eighth Amendment violations.

proposal for injunctive relief. However, instead of submitting a proposal, defendants stated that they were unable to do so because they oppose the entry of any injunctive order (Doc. 439 at 2). Defendants’ refusal to submit a proposal for injunctive relief is puzzling. First, 18 U.S.C. § 3626 (a)(1), counsels the Court to fashion prospective relief which is “narrowly drawn, extends no further than necessary to correct the violation of the Federal right, and is the least intrusive means necessary to correct the violation of the Federal right.” The Court presumed that it was defendants, as the officials charged with running the DOC, who would be in the best position to suggest the least intrusive injunctive relief consistent with redressing the constitutional violation. Second, the Court’s solicitation of defendants’ views on the proper scope of injunctive relief in this type of a situation is strongly encouraged by the Supreme Court. Lewis v. Casey, 518 U.S. 341, 361-62 (1996).2 Nevertheless, notwithstanding defendants’ refusal to assist, the Court must still fashion injunctive relief which finds the balance between redressing the constitutional violation and recognizing that it is primarily defendants’ job, and not the Court’s, to run the prison system.
As requested, plaintiffs have provided some suggestions to the Court, which the Court has taken into consideration. However, the Court must independently arrive at its decision concerning the terms of injunctive relief. In so doing, the Court calls upon several sources. By borrowing terms, procedures and DOC regulations already in place in related
2It may be that defendants desire to appeal this Court’s finding of a constitutional violation. However, this does not explain defendants’ refusal because defendants could suggest terms of an injunction without relinquishing their right to appeal the Court’s final judgment.
2

circumstances, the Court has endeavored to redress the found constitutional violation, while at the same time following the mandate of 18 U.S.C. § 3626 (a)(1).
The evidence established that a “spontaneous” (or immediate) application of chemical agents by correctional officers is permitted in emergent situations where an inmate’s conduct presents immediate danger to the inmate or another person (see Findings of Facts and Conclusions of Law, Doc. 434 at 7 and n.10). In contrast, the “non-spontaneous” use of chemical agents involves “instances where an inmate is engaging in certain prohibited behavior that does not involve harm or the immediate threat of harm to a staff person or another inmate” and requires prior consultation with and approval from supervisors. Id. This case, as alleged and proven, involves only the “non-spontaneous” application of chemical agents.
Second, plaintiffs cite Florida Administrative Code Ann. R. 33-404.107(1)(a), an already existing DOC regulation entitled “Use of Force with Mentally Disordered Inmates,” as providing some guidance to the Court in fashioning injunctive relief. This regulation provides in part that, in non-emergency (that is, “non-spontaneous”) situations, “medical and mental health care staff shall be consulted to assess if the force to be used is dangerous to that inmate’s well-being, or likely to exacerbate the current crisis.” Third, as a matter of established DOC policy, in every occasion where DOC security officers are considering the non-spontaneous spraying of an inmate, medical staff is consulted beforehand to determine whether there are any medical contraindications to the application of the chemical agents. Moreover, DOC employs a relatively large staff of mental health professionals on the CM wings at FSP who would also be available to consult about the mental health implications
3

of a proposed non-spontaneous spraying. Fourth, as pleaded and proven, this case involves only the use of chemical agents on
mentally ill inmates who are housed in close management (“CM”) status at Florida State Prison (“FSP”). Thus, the scope of injunctive relief must also be so demarked. Finally, the testimony was uncontradicted that, so long as Thomas and McKinney are housed at Union Correctional Institution (where they currently are), they are not subject to the nonspontaneous use of chemical agents without prior mental health intervention. Thus, it is only if McKinney and Thomas are returned to CM status at FSP that an injunction is required to protect their Eighth Amendment rights3.
Finally, the injunctive relief ordered below only applies to two inmates and should require little or no expenditure of additional resources or disruption of prison operations.
Therefore, upon due consideration and upon finding that the following relief is narrowly drawn, extends no further than necessary to correct the violation of the Federal right, and is the least intrusive means necessary to correct the violation of the Federal right, it is hereby
ORDERED AND ADJUDGED: 1. The findings made in this Order as well as those made in the Findings of Fact and Conclusions of Law (Doc. 434) and the February 11, 2009 Order (Doc. 440) are
3In their submission, plaintiffs asked the Court to expand the scope of injunctive relief to cover other DOC institutions where McKinney and Thomas might be sent. However, this case was pleaded and proven only as it relates to the CM facilities at FSP. Indeed, other than the Secretary of DOC, the only remaining defendant is the Warden of FSP. Thus, the Court cannot go beyond the pleadings and proof in fashioning injunctive relief.
4

incorporated by reference. 2. In the event that plaintiffs Jeremiah Thomas or Michael McKinney are placed
in the Florida State Prison (FSP) Close Management (CM) wing, defendants Walter McNeil, as Secretary of the Florida Department of Corrections, and Randall Bryant, as Warden of the Florida State Prison, in their official capacities, are enjoined from allowing the nonspontaneous application of chemical agents to plaintiffs Thomas or McKinney without first consulting with DOC’s trained mental health staff so that a mental health professional can determine whether the application of the chemical agents is dangerous to the inmate’s wellbeing, likely to exacerbate the current crisis or whether, on account of mental illness, the inmate is currently unable to conform his conduct to comply with the directives being given to him by correctional staff.4 Once contacted, the mental health professional will use his or her professional judgment to determine whether the non-spontaneous use of chemical agents is contraindicated for that inmate at that time (similar to the prior consultations which now occur with medical staff before non-spontaneous application of chemical agents is permitted). If, after consultation, the mental health professional deems the use of chemical agents to be contraindicated, chemical agents may not be employed at that time.
3. A copy of a Notice reading as follows will be placed in the respective inmate’s security, medical and mental health files and will be otherwise posted or disseminated to ensure that all affected DOC personnel are apprised of the injunction:
4This required prior consultation with mental health staff may or may not lead to the mental health professional going cell front to speak to the inmate. This is left to the judgment of the mental health professional and security staff in the given situation.
5

BY ORDER OF THE FEDERAL COURT, NO NONSPONTANEOUS SPRAYING OF INMATE [JEREMIAH THOMAS] [MICHAEL McKINNEY] MAY TAKE PLACE AT FSP ON CM WING WITHOUT PRIOR CONSULTATION WITH A DOC MENTAL HEALTH PROFESSIONAL TO DETERMINE WHETHER THE USE OF CHEMICAL AGENTS IS CONTRAINDICATED. A COMPLETE COPY OF THE COURT’S ORDER IS ON FILE IN THE WARDEN’S OFFICE. 4. Any non-spontaneous application of chemical agents to Thomas or McKinney at the CM wing of FSP will be videotaped and preserved until further order of the Court. 5. In the event that either Thomas or McKinney are transferred back to FSP CM status, a notice of that transfer will be filed with the Court within fifteen (15) days of the transfer, with a copy to counsel for the plaintiffs. Thereafter, for a period of one (1) year after the transfer, defendants will file a notice with the Court within fifteen (15) days of any nonspontaneous use of chemical agents on either Thomas or McKinney, with a copy to plaintiffs’ counsel. The notice will contain proof of compliance with the terms of this injunction. 6. Other than as stated in paragraph five (5), the terms of this injunction will remain applicable until the Court, upon motion by any interested party, dissolves the injunction.5 7. This Final Judgment and Final Injunction is hereby entered in favor of plaintiffs
5See 18 U.S.C. § 3626(b)(1). 6

Jeremiah Thomas and Michael McKinney and against defendants Walter McNeil and Randall Bryant, in their official capacities; this document is intended to meet the requirements of Rules 54 and 58(a), Federal Rules of Civil Procedure.
DONE AND ORDERED at Jacksonville, Florida this 9th day of March, 2009.
md/s. Copies to: Counsel of Record
7

 
 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA JACKSONVILLE DIVISION

JEREMIAH THOMAS, et al. Plaintiffs,
vs. WALTER A. McNEIL, et al.,
Defendants.

Case No. 3:04-cv-917-J-32JRK

FINAL JUDGMENT IN FAVOR OF DEFENDANTS WALTER MCNEIL AND RANDALL BRYANT AND AGAINST PLAINTIFFS ANTONIO WARD, PAUL ECHOLS, REGINALD WILLIAMS AND KELVIN FRAZIER
Pursuant to the Court’s Findings of Facts and Conclusions of Law (Doc. 434), which
are hereby incorporated by reference, Final Judgment is hereby entered in favor defendants
Walter McNeil and Randall Bryant, in their official capacities, and against plaintiffs Antonio
Ward, Paul Echols, Reginald Williams and Kelvin Frazier. This document is intended to
meet the requirements of Rules 54 and 58(a), Federal Rules of Civil Procedure.
DONE AND ORDERED at Jacksonville, Florida this 9th day of March, 2009.

md/s. Copies to: Counsel of Record

 
 United States District Court, M.D. Florida.
Sylvester BUTLER, et al., Plaintiffs, v.
James V. CROSBY, Jr., et al., Defendants. No. 3:04CV917-J-32MMH.
filed Sept. 20, 2004. last filing April 21, 2006.
Feb. 8, 2006.
Kevin Anthony Blazs, Gobelman, Love, Gavin, Blazs & Wasilenko, Jacksonville, FL, Lead Attorney, Attorney to be Noticed, for James V. Crosby, Jr., (Defendant).
J. Dixon Bridgers, III, Vernis & Bowling of North Florida, P.A., Jacksonville, FL, Lead Attorney, Attorney to be Noticed, for Billy Jarvis, (Defendant).
F. Damon Kitchen, Constangy, Brooks & Smith, LLC, Jacksonville, FL, Lead Attorney, Attorney to be Noticed, for James Wilson, (Defendant).
William Peter Martin, Dennis, Jackson, Martin & Fontela, P.A., Tallahassee, FL, Lead Attorney, Attorney to be Noticed, for James McDonough, (Defendant).
J. Ray Poole, Jr., Constangy, Brooks & Smith, LLC, Jacksonville, FL, Attorney to be Noticed, for James Wilson, (Defendant).
Kathleen M. Savor, Office of the Attorney General (Ft.Lauderdale/Cr.Appl), Criminal Appellate Division, Ft. Lauderdale, FL, Lead Attorney, Attorney to be Noticed, for Allen Clark, (Defendant).
Lisa White Shirley, Baron & Budd, P.C., Dallas, TX, Lead Attorney, Attorney to be Noticed, for Antonio Ward, (Plaintiff).
Ronald S. Wasilenko, Gobelman, Love, Gavin, Blazs & Wasilenko, Jacksonville, FL, Lead Attorney, Attorney to be Noticed, for James V. Crosby, Jr., (Defendant).
ORDER
HOWARD, Magistrate J.

*1 THIS CAUSE is before the Court on Plaintiffs' Motion for Leave to File Second Amended Complaint, with Rule 3.01(G) [sic] Certification (Doc. No. 127; Motion) filed on November 30, 2005. Defendants James V. Crosby, Jr., Bradley Carter, George Sapp, Stephen Sirmones, Joe Lazenby, Jr., Allen Clark, Mark Redd, Keith Musselman, Tony Anderson, William Muse, Colin Halle, Steven Tricocci, Tim Chastain, Rodney Barnett, Ronnie Barton, Kenneth Lampp, Wendell Whitehust, Stacey Green, David Reynolds, John Riggs, Glynn Reeder, John Rizer, Oscar Shipley, Dean Ellis, Jeffrey Lindsey, and Billy Jarvis (Defendants) filed a response in opposition to the Motion on December 9, 2005. See Defendants' Response in Opposition to Plaintiffs' Motion to File Second Amended Complaint (Doc. No. 128; Opposition). Defendant James Wilson (Defendant Wilson) filed a separate memorandum opposing the Motion on December 14, 2005. See Defendant James Wilson's Response in Opposition to Plaintiffs' Motion for Leave to File Second Amended Complaint (Doc. No. 129; Defendant Wilson's Response). Plaintiffs filed a reply FN1 on December 22, 2005. See Plaintiffs' Reply in Support of Motion for Leave to File Second Amended Complaint (Doc. No. 132; Reply). Accordingly, the Motion is now ripe for review.
FN1. On December 14, 2005, Plaintiffs requested leave from the Court to file a reply to the Opposition and requested oral argument on the Motion. See Plaintiffs Motion for Leave to File Reply to Defendants Memorandum Opposing Plaintiffs Motion for Leave to Amend Complaint, with Rule 3.01(g) Certification, Supporting Memorandum of Law, and Request for Oral Argument (Doc. No. 130) at 4. The Court granted Plaintiffs leave to file a reply and took their request for an oral argument under advisement. See Order (Doc. No. 131). After due consideration of the parties' memoranda and applicable authority, the Court concludes that an oral argument on the Motion in not needed. See Local Rule 3.01(d), United States District Court, Middle District of Florida (Local Rule(s)). Thus, Plaintiffs' request for oral argument on the Motion is due to be denied.

I. Background
A review of the procedural background to date is necessary before addressing the substance of the Motion. On September 12, 2003, a class action lawsuit, Brown, et al. v. Crosby, et al., Case No. 2:03-cv-526-FtM-29DNF (M.D.Fla.), FN2 was instituted in the Fort Myers division of the Middle District of Florida and assigned to The Honorable John E. Steele. See Complaint (Brown Doc. No. 1; Brown Complaint) at 1. In the Brown suit, several inmates sought declaratory and injunctive relief against six defendant employees FN3 of the Florida Department of Corrections (FDOC) in their official capacities as well as various Florida correctional institutions. Seegenerallyid.The named plaintiffs alleged that “employees at the Florida correctional institutions routinely misuse chemical agents on inmates in segregated housing units, and that defendants permit this routine misuse by refusing to reprimand the correctional officers.”See Opinion and Order (Brown Doc. No. 205; Class Action Order) at 3. The plaintiffs further asserted that the defendants' “policy, practice and custom of misuse ‘necessitate[ ] injunctive relief directing defendants to cease their practice of permitting employees to abuse inmates with chemical agents and to implement remedial measures.” ’ Id. at 4 (quoting Brown Complaint at 10). Accordingly, the Brown plaintiffs sought class certification for:
FN2. All documents filed in this case will be referred to as “Brown Doc. No.”
FN3. The defendants were: James V. Crosby, Jr., as the Secretary of the Florida Department of Corrections (FDOC); Gerald H. Abdul-Wasi, as the Inspector General of FDOC; Joseph Tompson, as the warden at Florida State Prison, Chester Lambdin, as the warden at Charlotte Correctional Institution; Joseph Petrovsky, as the warden at Santa Rosa Correctional Institution; and Wendell Whitehurst, as the warden at Washington Correctional Institution. Id. at 6-7
all persons who are:
(a) now in, or will hereafter come into, the custody of the Florida Department of Corrections, and

(b) now housed, or will hereafter be housed, in any type of segregated housing, including but not limited to Maximum Management, Close Management, Disciplinary Confinement or Administrative Confinement, and
*2 (c) have been, or may be in the future, subjected to a non-spontaneous use of force by way of chemical agents used maliciously and sadistically for the very purpose of causing harm and not in a good-faith effort to maintain or restore discipline.
Brown Complaint at 8.
While Brown was pending, on September 20, 2004, six of the named plaintiffs in Brown also filed the above captioned matter seeking compensatory and punitive damages from twenty-seven defendants sued in their individual capacities as correctional officers and supervisors at Florida State Prison (FSP).See Initial Complaint and Jury Demand (Doc. No. 1; Initial Complaint) at 1-2. Although seeking different relief and limiting the issues to one particular institution, the basis of the instant suit was predicated on the same general claims as the suit in Brown; that the plaintiffs had been harmed due to the misuse of chemical agents at a specific Florida correctional institution. CompareBrown Complaint with Initial Complaint.
Because the two cases appeared to be related, Defendants filed a motion to stay the instant proceeding pending the outcome of Brown .See Defendants' Amended Motion to Stay/Abate (Doc. No. 70; Motion to Stay). Defendants argued that the instant lawsuit and the Brown lawsuit were virtually identical so that once the court in Brown determined certain issues it would limit the relevant issues in the instant suit. Seeid. at 4. Defendants further alleged that if the two cases continued simultaneously there would be duplication of discovery. Seeid. at 5. However, Plaintiffs argued that the two cases were different because the “burdens imposed on the plaintiffs in injunctive cases and money damages cases are very different ...,” the underlying facts and evidence would be different, the discovery would be different, and the remedies would be different. See Plaintiffs' Response to Defendants' Amended Motion to Stay/Abate and Request for Oral Argument (Doc. No. 71; Plaintiffs' Response to Motion to Stay) at 6-7.

After holding a telephonic hearing, the assigned district judge, The Honorable Timothy J. Corrigan, denied the Motion to Stay, without prejudice. See Order (Doc. No. 76). Thus, the instant case continued to proceed concurrently with Brown.
Subsequently, on May 12, 2005, Plaintiffs filed a stipulated motion to amend the Initial Complaint. See Stipulated Motion, with Rule 3.01(G) [sic] Certification, to Amend Complaint and Memorandum of Law in Support Thereof (Doc. No. 92). As the amendment was unopposed, this Court granted the request on May 17, 2005. See Order (Doc. No. 94). Consequently, the Amended Complaint was filed on May 19, 2005. See Amended Complaint and Jury Demand (Doc. No. 96; Amended Complaint). The Amended Complaint did not make any substantive changes to the claims contained in the Initial Complaint. Compare Initial Complaint with Amended Complaint. Thereafter, on May 25, 2005, Defendant Wilson filed a Motion to Dismiss the Amended Complaint, see Defendant James Wilson's Motion to Dismiss and Supporting Memorandum of Law (Doc. No. 101), which is currently pending before the assigned district judge.
*3 Meanwhile, the named plaintiffs in Brown filed a motion for class certification on January 20, 2005. See Plaintiffs' Motion for Class Certification (Brown Doc. No. 166). Judge Steele denied that motion on June 21, 2005. See Class Action Order at 23. The Brown plaintiffs petitioned the Eleventh Circuit for an appeal of that order, but on August 24, 2005, their petition was denied. See Petition for Permission to Appeal a Decision of the U.S. District Court of the Middle District of Florida (Brown Doc. No. 219). As a result, all parties entered a stipulation of dismissal on November 23, 2005, see Stipulation of Dismissal (Brown Doc. No. 226), leading to Judge Steele's dismissal of the case, without prejudice, on November 28, 2005. See Order (Brown Doc. No. 227).
Two days after the dismissal of Brown, Plaintiffs in the instant matter moved this Court for leave to amend the Amended Complaint to add the following:
1) Four new plaintiffs, Paul Echos, Charles Morgan, Michael McKinney, and Antonio Ward;
2) One new Defendant, Michael Rathmann, in his

individual and official capacity as warden of FSP;
3) Claim for declaratory relief that the misuse of chemical agents at FSP violates the Eighth Amendment of the United States Constitution; FN4
FN4. The Eighth Amendment protects a convicted individual's right to be free from “cruel and unusual punishments.” SeeU.S. CONST . amend. VIII.
4) Claim for injunctive relief prohibiting Defendants Crosby and Rathmann from misusing chemical agents at FSP;
5) Claims for injunctive relief to prohibit Defendant Crosby from returning Plaintiffs Thomas and Ulrath to FSP; and
6) Recently discovered factual allegations.
See Reply at 5-6.FN5Pursuant to the Amended Case Management and Scheduling Order, the deadline to amend a pleading in this action was November 30, 2005. See Amended Case Management and Scheduling Order (Doc. No. 124; Amended CMSO). As the Motion was filed on that date, it is due to be reviewed pursuant to Rule 15(a), Federal Rules of Civil Procedure (Rule(s)).FN6
FN5. Although not specifically mentioned by Plaintiffs or Defendants, it appears that as a result of the amendments to add claims for injunctive relief, Plaintiffs are also now seeking to bring suit against Defendant James V. Crosby, Jr. in his official capacity as the Secretary of FDOC. See Motion, Exh. A.
FN6. Defendants do not specifically contest the addition of the four new plaintiffs or Defendant Rathmann. See Opposition 1-11. As Plaintiffs have alleged a right to relief arising out of the same transactions or occurrences and a common question of law or fact with regard to the new and existing parties, see Motion, Exh. A at ¶¶ 351-399, the Court finds that the proposed plaintiffs and defendant may be joined in this action. See Rule 20(a).

II. Applicable Standard
Rule 15(a) establishes that “[a] party may amend the party's pleading once as a matter of course at any time before a responsive pleading is served.”Thereafter, a party may amend its pleading only upon leave of court or by obtaining written consent of the opposing party. Seeid.The rule provides that “leave shall be freely given when justice so requires.”Id. As a result, “[t]here must be a substantial reason to deny a motion to amend.” Laurie v. Ala. Ct. of Crim.App., 256 F.3d 1266, 1269, 1274 (11th Cir.2001) (per curiam).
Substantial reasons justifying a court's denial of a request for leave to amend include “undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc.” Foman v. Davis, 371 U.S. 178, 182 (1962); see also Maynard v. Bd. of Regents of the Div. of Univers. of the Fla. Dep't of Educ.ex rel.Univ. of S. Fla., 342 F.3d 1281, 1287 (11th Cir.2003).
III. Summary of Arguments
*4 Plaintiffs assert that the Court should grant the Motion because their claims for injunctive relief are “necessary to ensure that Defendants will not continue to torture Plaintiffs at FSP.” Reply at 5. Additionally, they argue that the amendments are based on new facts revealed through discovery. Seeid. at 7. Further, Plaintiffs contend that the Motion was timely filed, seeid. at 12, and that the Defendants will not be unduly prejudiced by the amendments. Seeid. at 13.Finally, Plaintiffs state that the amendments are not futile, seeid. at 14, and will “aid in the efficient resolution” of their asserted claims. Id. at 7.
On the other hand, Defendants contend the Motion should be denied. See Opposition at 12. Initially, Defendants argue the Motion should be denied because the proposed amendments are based on facts known to Plaintiffs when they filed the Brown case. Seeid . at 4. They further assert it should be denied because it raises a new legal issue requiring different proofs and thus necessitating two separate trials.

Seeid. at 5-6.Additionally, Defendants argue the Motion should be denied based on undue delay. Seeid. at 7. Moreover, they suggest that the Court should consider that extensive discovery has already taken place, seeid. at 8, and that they will be unduly prejudiced if the amendment is granted because several of the deadlines in the CMSO will need to be extended. Seeid. at 8-9.Lastly, they contend that the Motion should be denied because the proposed amendments would be futile. Seeid. at 9-11.In addition to the arguments raised by the other named Defendants, Defendant Wilson contends that the amendments will be unfairly prejudicial to him at trial.FN7See Defendant Wilson's Response at 6. The Court will now determine whether leave to amend should be granted pursuant to Rule 15 or whether there is a substantial reason to deny the Motion.FN8
FN7. Defendant Wilson adopted the arguments set forth in the Opposition. See Defendant Wilson's Response at 4 n. 2.
FN8. Although Defendants have labeled their arguments as Brown v. Crosby, New Legal Issues, Delay, Discovery, Undue Prejudice, and Futility of Amendment, the Court will address all arguments in the context of whether substantial reasons are present to warrant a denial of the Motion as required by the Supreme Court in Foman.Thus, the undersigned will consider the Defendants' Brown v. Crosby argument under the heading of Undue Delay, their New Legal Issues argument under the heading of Undue Prejudice, and their Discovery argument under the heading of Undue Prejudice.
IV. Discussion
A. Undue Delay
While the mere passage of time will not justify the denial of a motion to amend, a plaintiff's undue delay in seeking leave to amend is a sufficient basis to deny such a motion. See Hester v. Int'l Union of Operating Eng'rs, AFL-CIO, 941 F.2d 1574, 1578-79 (11th Cir.1991). The Eleventh Circuit has affirmed findings of undue delay when leave to amend was sought after the close of discovery and the filing of dispositive motions. See Hinson v. Clinch County, Ga. Bd. of

Educ., 231 F.3d 821, 826 (11th Cir.2000); Campbell v. Emory Clinic, 166 F.3d 1157, 1162 (11th Cir.1999); Jameson v. Arrow Co., 75 F.3d 1528, 1535 (11th Cir.1996). Moreover, the court has held the denial of a motion to amend was proper when the motion was filed on the last day of discovery and the plaintiff failed to explain why the motion could not have been filed earlier. See Maynard, 342 F.3d at 1287.
Defendants submit two reasons in support of their argument that the Motion should be denied due to Plaintiffs' delay in seeking these amendments. See Opposition at 4-5, 7-8. First, they suggest that Plaintiffs' undue delay in bringing the Motion warrants its denial. Seeid. at 7-8.Next, they contend that Plaintiffs should not be permitted to add the claims for injunctive relief at this time because they were aware of the claims at the time the suit was filed, as evidenced by their inclusion in Brown.Seeid. at 4-5.The Court will address each argument in turn.
1. Delay
*5 First, Defendants contend the Motion was unduly delayed because it “was filed over twelve months after the filing of the original complaint and twentysix months after the filing of the complaint in Brown....”Id. at 7-8.However, Plaintiffs argue the Motion was not untimely because they have “diligently litigated their claims” and filed the Motion “within the deadline set by the Court.”Reply at 12.
Plaintiffs filed the Motion on November 30, 2005. See Motion at 1. The deadline to amend pleadings in this case was November 30, 2005. See Amended CMSO. This date was agreed to without objection by twenty-six of the defendants,FN9see Stipulated Motion to Amend Case Management and Scheduling Order (Doc. No. 123), and there were no objections to the scheduling order entered by the district judge. As the Motion was filed within the agreed date set by the Amended CMSO, the Court declines to find that it should be denied as unduly delayed merely because it was filed twelve months after the Initial Complaint was filed. See Wyatt v. BellSouth, Inc., 176 F.R.D. 627, 630 (M.D.Ala.1998) (declining to find a motion to amend filed eighteen months after the initial complaint untimely where the motion was filed within the consented to deadline set in the scheduling

order).
FN9. Defendant Wilson did not agree to the extension of the deadline to amend pleadings as it related to him. See Stipulated Motion to Amend Case Management and Scheduling Order (Doc. No. 123) at 2 n. 1.
2. Brown v. Crosby (Plaintiffs' Prior Knowledge of Claims)
Second, Defendants argue that the Motion should be denied because the proposed amendments for injunctive relief are based on facts known to the Plaintiffs when they filed Brown.See Opposition at 4. Although Plaintiffs concede that the proposed amendments include “a few new allegations based on previously known facts ...,” Reply at 7, they also contend that their proposed amendments “are based upon facts they have learned in discovery and through public information.”Id. at 8.
Upon review of the proposed amendments, the Court agrees that Plaintiffs could have included many of the claims for injunctive relief at the time they filed suit. However, the Court is not persuaded that this consideration constitutes a substantial reason warranting a denial of the Motion. Indeed the cases cited by Defendants, Brooks v. Celeste, 39 F.3d 125 (6th Cir.1994), and Pallottino v. City of Rio Rancho, 31 F.3d 1023 (10th Cir.1994), as support for this argument, see Opposition at 5, are unconvincing.
In Brooks, the appellate court upheld the district court's denial of the plaintiff's motion to amend. See 39 F.3d at 130-31. There, the plaintiff sought to add individual claims against the defendants who were originally sued only in their official capacities. Seeid.In denying the motion to amend, the district court found that the plaintiff's requested amendments were unduly prejudicial because the plaintiff did not seek to add the individual claims until after the court had granted class certification in part due to the absence of any individual claims. Seeid. at 130.Additionally, the district court found that because the defendants were sued initially only in their official capacities they were not on notice that they might also be sued in their individual capacities. Seeid.Thus, although the district court did note that the plaintiff could have alleged the individual claims from the start of her law suit, it denied the request for

other reasons. Seeid.
*6 In Pallottino the appellate court similarly upheld a district court's denial of the plaintiff's motion to amend. 31 F.3d at 1027. The district court found that the new theory the plaintiff sought to add was one he could have relied upon from the time his case was instituted, but that he did not seek to amend the complaint until after the court had dismissed his case based upon the first theory. 31 F.3d at 1027. In agreeing with the district court's ruling, the appellate court concluded that “ ‘[a] busy district court need not allow itself to be imposed upon by the presentation of theories seriatim.” ’ Id. (quoting Freeman v. Continental Gin Co., 381 F.2d 459, 46970 (5th Cir.1967)).FN10 Plaintiffs, in this case, are proceeding under the same theory of chemical agent misuse which was originally pled and are simply seeking to add the claims for injunctive relief to their current complaint. See Motion, Exh. A. Accordingly, the Court concludes that neither Brooks nor Pallottino suggests that a denial of the instant Motion is warranted.
FN10. In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir.1981) (en banc), this Circuit adopted as binding precedent all decisions of the former Fifth Circuit rendered prior to October 1, 1981.
The Court does, however, find the Eleventh Circuit opinion in Halliburton & Assoc.s, Inc. v. Henderson, Few & Co., 774 F.2d 441 (11th Cir.1985) to be instructive on this issue. In Halliburton, the Eleventh Circuit rejected the reasons given by a district court in denying the plaintiff's motion to amend. Seeid. at 443.The plaintiff had sought to amend the complaint to add a claim that it could have brought from the inception of the suit. Seeid.In rejecting this as a reason for denying the motion, the Eleventh Circuit noted that the plaintiff's choice of state court forum had been defeated by the defendant's removal of the action to federal court. Seeid.Accordingly, the court found that once the plaintiff “found itself in federal court, it may well have decided a different litigation strategy was in order.”Id. Thus, the court concluded that the fact that the plaintiff could have included its proposed amendment from the beginning of the suit was not a substantial reason to deny the motion to amend. Id.

After denial of the motion for class certification, the Brown plaintiffs made the decision to stipulate to dismissal of their claims. Plaintiffs, in the instant action, did not initially seek injunctive relief which was already being sought in Brown.Their decision to seek an amendment of their complaint to add more narrow requests for injunctive relief in this action may well have been a change in strategy in light of the developments in the Brown case. Indeed, it appears to be the very same type of change in strategy which the Eleventh Circuit, in Halliburton, acknowledged could, in appropriate circumstances, justify an amendment despite the plaintiff's ability to have included the claims at the inception of the action. Accordingly, the addition of the claims for injunctive and declaratory relief will not be denied as unduly delayed merely because Plaintiffs could have asked for this relief from the start of the suit. See Gropp v. United Airlines, Inc., 847 F.Supp. 941, 94647 (M.D.Fla.1994) (refusing to deny the motion to amend where the plaintiffs added a new legal theory based on the same allegations in their original complaint).
*7 Moreover, the undersigned notes that several of the proposed factual amendments, i.e. the alleged steroid use and promotions, see Reply at 8, do not appear in the Brown complaint and appear to stem from documents reviewed through discovery. Seeid. at 8. Plaintiffs also assert the additional discovery revealed the gravity of the risk to Plaintiffs which lead to the amendments for injunctive and declaratory relief. Seeid.Finally, the proposed new plaintiffs were not named plaintiffs in the Brown case, and thus, their contentions also appear to emanate from discovery. SeeBrown Complaint at 1. Accordingly, the Court declines to find that Plaintiffs' delay in bringing the Motion was “undue.”
B. Bad Faith, Dilatory Motive, Repeated Failure to Cure
Turning now to the issues of bad faith and dilatory motive, the Court notes that Defendants have not suggested a basis for a finding of either bad faith or dilatory motive. Based on the record before it, the Court independently discerns neither evidence of bad faith nor dilatory motive on the part of Plaintiffs in bringing the Motion. Additionally, although Plaintiffs were previously granted leave to amend, the Court does not find that there have been repeated “failures

to cure some deficiency in the pleading.”Thus, only the questions of undue prejudice and futility of amendment remain.
C. Undue Prejudice
All Defendants argue that they will be unduly prejudiced if the Court grants the Motion because of the new legal issues raised and their impact on discovery. See Opposition at 9; Defendant Wilson's Response at 4 n. 2. In addition, Defendant Wilson argues that permitting the amendments will lead to the introduction of evidence at trial that will be prejudicial to him. See Defendant Wilson's Response at 6. The undersigned will address each of their arguments below.
1. New Legal Issue
Defendants' primary contention is that they will be prejudiced by the introduction of a new legal issue. See Opposition at 5-7. Further, they allege that if Plaintiffs are allowed to add their claims for injunctive relief “there would have to be two trials in this matter-a jury trial for damages focusing on the actions of the individual Defendants, then a bench trial where this Court would consider evidence pertaining to the injunctive relief sought....”Id. at 6. As additional support for their position, Defendants point to Plaintiffs' response to their Motion to Stay in which Plaintiffs argued that the proofs required for the claims seeking injunctive and declaratory relief in Brown were so different from the monetary damages sought in the instant case that the two cases should be kept separate. Seeid. at 6-7.
On the other hand, Plaintiffs argue that the claims for injunctive relief which they propose to add are consistent with the issues raised in the Initial and Amended Complaints. See Reply at 11. Additionally, they contend that it is “common practice to hear claims for injunctive relief and for damages in one trial” and whether the claims will ultimately be severed is an inappropriate basis for denying leave to amend. Id. at 12.
*8 Whether a motion to amend adds a new legal issue is a factor courts consider when determining whether to permit an amendment. See Pilkington v. United Airlines, Inc., 158 F.R.D. 508, 510 (M.D.Fla.1994) (denying the motion to amend in part because it

raised a new legal issue regarding the statute of limitations). However, it is not entirely clear what new issues would be raised by the proposed amendments and Defendants do not identify them.FN11All of Plaintiffs' proposed amendments concern the same question of law: whether Defendants' use of chemical agents against Plaintiffs constitute a violation of their Eighth Amendment rights. See Motion, Exh. A at 53; Amended Complaint at 26; Initial Complaint at 26. To the extent Defendants contend that adding the claim for injunctive relief raises new legal issues due to the differing legal standards and burdens, the Court finds that in light of the liberal amendment policy, see Czeremcha v. Int'l Ass'n of Machinsts and Aerospace Workers, 724 F.2d 1552, 1291 (11th Cir.1984), and the considerations addressed below, the addition of these claims will not “unduly prejudice” Defendants.
FN11. Instead, Defendants refer the Court to the arguments made by Plaintiffs in opposition to Defendants' Motion to Stay/Abate. Defendants seem to suggest that Plaintiffs' previous arguments constitute an admission that the issues which they now seek to include are so different as to require that the two cases be kept separate. However, the Court notes that Defendants themselves previously took a position entirely inconsistent with their current position when they argued that the money damage claims in the instant suit and the class action for injunctive relief in Brown are “virtually identical.” Motion to Stay at 2.
First, the case Defendants rely on in making their argument that “[a]mended complaints have been denied where new legal issues were raised ...,”see Opposition at 5-6, is unpersuasive. In Pilkington, the court denied the plaintiffs' motion to amend to add new out-of-state plaintiffs because of the plaintiffs' undue delay and dilatory tactics. See 158 F.R.D. at 509-10. Although the court found the motion to amend raised new statute of limitations issues that were unduly prejudicial to the defendants, it also found that the defendant would be unduly prejudiced because the amendments added 130 new separate incidents, the evidence relating to the new allegations was located outside of the judicial district, and it would be unlikely that discovery could be completed by the cutoff date. See id. at 510.Most importantly,

the court was troubled because plaintiffs, knowing that they were going to add the out-of-state plaintiffs, waited until after the court ruled in the plaintiffs' favor denying the defendant's motion to transfer the case before requesting leave to add the new parties. See id. at 509-10.Thus, the court did not deny the motion merely because it raised new legal issues.
Second, the court notes that whether a case should be bifurcated due to prejudicial and inadmissable evidence is most appropriately addressed in a specific pre-trial motion for severance. See Rules 42(b), 20(b).FN12 The undersigned recognizes that, as the Defendants point out, the district court in Brooks considered whether the requested amendments required different proofs which lead the court to “ ‘question[ ] whether these claims could be appropriately joined in one action.” ’ Brooks, 39 F.3d at 130. However, as discussed in Part IV.A.2. supra, the Brooks court relied on several other compelling factors, which are not present here, when it denied the plaintiff's motion to amend. Further, whether certain evidence should be allowed at trial is a consideration best reserved for a separate pre-trial motion. SeeFed.R.Evid. 105.FN13
FN12. Rule 42(b) provides, in part: “[t]he court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy, may order a separate trial of any claim ..., or of any separate issue....” Rule 42(b). Also, Rule 20(b) provides that “[t]he court may make such orders as will prevent a party from being embarrassed, delayed, or put to expense by the inclusion of a party against whom the party asserts no claim and who asserts no claim against the party, and may order separate trials or make other orders to prevent delay or prejudice.”Rule 20(b).
FN13.Fed.R. Evid. 105 provides: “[w]hen evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the court upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly.”Fed.R.Evid. 105.
2. Discovery / CMSO Deadlines

*9 Next, Defendants assert that they will be prejudiced because an enormous amount of discovery has been completed already. See Opposition at 8. However, Plaintiffs state that they do not anticipate extensive additional discovery or the need to enlarge the discovery period. Reply at 12-13. The Court certainly considers the degree of discovery completed when determining whether to grant a motion to amend, and in addition to this factor, the Court must determine how the proposed amendments will affect future discovery. See Perkins v. Spivey, 911 F.2d 22, 34-35 (8th Cir.1990) (upholding the district court decision to deny a motion to amend, in part, because of the extensive discovery already conducted and the risk of extensive additional discovery if the amendments were allowed); seealso Dannebrog Rederi AS v. M/Y True Dream, 146 F.Supp.2d 1307, 1315 (S.D.Fla.2001) (recognizing that an amendment would be prejudicial “if the opponent would be required to engage in significant new preparation at a late stage of the proceedings”). The burden of additional discovery alone, however, is not a substantial reason to deny a motion to amend. See A.V. by Versace, Inc. v. Gianni Versace, S.p.A., 87 F.Supp.2d 281, 299 (S.D.N.Y.2000) (citing United States v. Continental III. Nat'l Bank & Trust Co., 889 F.2d 1248, 1255 (2d Cir.1989)).
In this case, Defendants have failed to address how the amendments will affect the discovery already undertaken or what additional discovery will be needed. See Opposition at 8. The discovery cut-off date is not until July 31, 2006, see Amended CMSO at 1, almost six months away and Defendants have not alleged that they will be unable to complete discovery by this date. Additionally, Plaintiffs contend that they “do not anticipate conducting extensive additional document discovery and submit that all discovery can be completed by the deadline....” Reply at 13. Moreover, as stated supra, the proposed amendments for injunctive relief are based generally on the same contentions alleged in the Initial and Amended Complaints. Therefore, it appears to the Court to be more efficient to have the new allegations joined with the instant action rather than Plaintiffs seeking to bring a separate suit for injunctive relief. See Gropp, 847 F.Supp. at 946 (finding that “a second case on the [c]ourt's docket involving the claims which arise out of the same transactions or occurrences and which allege the

same facts is a detriment in that it defeats the [c]ourt's ability to manage its docket in a most efficient manner”); seealso Zarnick v. Painewebber, Inc., No. 95-138-CIV-FTM-17, 1995 WL 631821 at *2 (M.D.Fla. Oct. 24, 1995) (finding no real prejudice where plaintiffs' proposed amendments were based on the same facts alleged in the original complaint). Thus, the Court's consideration of the amount of discovery completed and the amount to be undertaken weighs in favor of granting Plaintiffs' Motion.
*10 Defendants also argue that they will be prejudiced because several of the Amended CMSO deadlines will have to be changed. See Opposition at 9. Defendants state that both the expert report deadline of December 30, 2005 for Plaintiffs and January 31, 2006 for Defendants, and the mediation deadline, of March 31, 2006, will be impacted. Seeid.In response, Plaintiffs contend that “no scheduling issues exist at all and certainly none that prejudice Defendants.”Reply at 13. It appears that the expert witness disclosure deadlines will be impacted by the addition of new claims. However, given that almost six full months remain in the discovery period, the Court finds that the need to seek a continuance of those deadlines does not constitute a substantial reason warranting the denial of a motion to amend. With regard to the mediation deadline, it is unclear why that deadline would have to be moved. However, if Defendants believe that the addition of the new claims warrants an extension of the mediation deadline, they are certainly free to bring that to the attention of the Court by separate motion. Accordingly, the undersigned is not persuaded that the impact of the proposed amendments on the current deadlines warrants denial of the Motion.
3. Prejudice to Defendant Wilson
The undersigned must also address Defendant Wilson's contention that the Motion should be denied because the amendments will “lead to the introduction of evidence at trial that [will] result in unfair prejudice to [him].” Defendant Wilson's Response at 6. Plaintiffs contend that this argument is premature and that Defendant Wilson can “address any evidentiary or procedural issues ...” with an admissibility or bifurcation motion. See Reply at 1213. The Court has reviewed the cases cited by Defendant Wilson and finds that they concern

admissibility of evidence and bifurcation, rather than the propriety of amendment. See Defendant Wilson's Response at 5-6. As discussed in Part IV.C.1. supra, these arguments are unpersuasive at this stage of the proceeding. Accordingly, the undersigned will not deny the Motion as unduly prejudicial to Defendant Wilson.
D. Futility
Finally, Defendants contend the Motion should be denied because the amendments sought are futile. See Opposition at 9-11. The Eleventh Circuit has instructed that “ ‘denial of leave to amend is justified by futility when the complaint as amended is still subject to dismissal.” ’ Hall v. United Ins. Co. of Am., 367 F.3d 1255, 1262-63 (11th Cir.2004) (quoting Burger King Corp. v. Weaver, 169 F.3d 1310, 1320 (11th Cir.1999)); see also Galindo v. ARI Mut. Ins. Co., 203 F.3d 771, 777 n. 10 (11th Cir.2000) (“ ‘A proposed amendment is futile if the complaint, as amended, would be subject to dismissal.” ’ (quoting Jefferson County Sch. Dist. No. R-1 v. Moody's Investor's Servs., Inc., 175 F.3d 848, 859 (10th Cir.1999))). Thus, the Court must consider whether Plaintiffs' proposed amendments would be subject to dismissal.
*11 Defendants argue that Plaintiffs' proposed amendment seeking injunctive relief at FSP is futile because it was rejected by Judge Steele in Brown and “cannot be resurrected here.” Opposition at 10. In reply, Plaintiffs argue that the Brown case does not prohibit their proposed amendments. See Reply at 9. Upon review of the Brown docket and the Class Certification Order entered by Judge Steele, this Court finds that Brown did not foreclose Plaintiffs' proposed amendment to add claims for injunctive and declaratory relief.
In Brown, Judge Steele denied the named plaintiffs' request for class certification, in part, because their claims did not satisfy the commonality or typicality requirements of Rule 23(a).FN14See Class Certification Order at 17-19. Specifically, Judge Steele found the “existence of individual situations and the importance of factual distinctions in determining whether the application of force is justified or excessive fatally undermines the typicality between the named plaintiffs and the proposed class members....”Id. at 18.He further

concluded that the named plaintiffs' claims did not satisfy the commonality requirement because “it is impossible to say that the affidavits of the named plaintiffs and the ways in which they claimed to have experienced chemical agent misuse could be fairly compared with the history or individual experiences of absent class members, or that the claims of class members share such common features that rulings could be fashioned to fairly adjudicate the claims as a group.”Id. at 18.Thus, while Judge Steele found that the named plaintiffs could not pursue a class action, he did not find that they could not seek injunctive relief. Indeed, while Judge Steele denied class certification, the Brown complaint, including the requests for injunctive relief, survived defendants' motion to dismiss. See Order (Brown Doc. No. 115). In denying that motion, Judge Steele specifically found that the Brown plaintiffs had both standing to bring the lawsuit and standing to seek injunctive relief. Seeid. at 6-9.Moreover, Judge Steele determined that the named plaintiffs sufficiently alleged a claim under the Eighth Amendment. Seeid. at 10.Therefore, the decisions in Brown neither suggest that Plaintiffs' proposed amendments would be subject to dismissal nor foreclose Plaintiffs' request for injunctive relief in this case.
FN14. Rule 23(a) provides: “[o]ne or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.”Rule 23(a).
The fact that the injunctive relief requested by Plaintiffs in the proposed amendments is more narrow in scope than the injunction requested in Brown further persuades the Court that the requested amendment is not futile. Indeed, Plaintiffs have limited their request for injunctive relief to FSP where the four new Plaintiffs are currently housed and where all of the abusive incidents are alleged to have occurred rather than attempting to effect FDOC system-wide change. See Motion, Exh. A at 4-5. Accordingly, the Court is not persuaded that an

addition of this claim at this juncture would be futile.
*12 As to the proposed amendment prohibiting Plaintiff Ulrath and Thomas from being returned to FSP, Defendants contend that it should be rejected as futile because Plaintiffs have failed to sufficiently demonstrate an imminent risk of injury. See Opposition at 11. Defendants argue that Plaintiffs are “asking this Court to assume that merely because the named plaintiffs will remain in prison for a substantial period of time, that they are at imminent risk of being subjected to being incarcerated at [FSP].”Id. at 11.On the other hand, Plaintiffs contend that the harm they are seeking to prevent is likely because FDOC's official policy is to house mentally ill patients at FSP. See Reply at 18. Further, Plaintiffs argue that injury is likely because “Defendant Crosby has the authority to transfer Plaintiffs Thomas and Ulrath to FSP ... at any time and for any reason.”Id.
When seeking injunctive relief a plaintiff “must assert a reasonable expectation that the injury they have suffered will continue or will be repeated in the future.” Malowney v. Federal Collection Dep. Group, 193 F.3d 1342, 1347 (11th Cir.1999). It must be a “real and immediate-as opposed to a merely conjectural or hypothetical-threat of future injury.” Church v. City of Huntsville, 30 F.3d 1332, 1337 (11th Cir.1994). Further, a substantial likelihood of injury can be sufficiently alleged where it is the “custom, practice, and policy ... to commit the constitutional deprivations ...” complained of by the plaintiff. See id. at 1339.
Here, the undersigned finds that Plaintiffs Thomas and Ulrath have sufficiently alleged facts necessary to make a claim for injunctive relief prohibiting their return to FSP. Plaintiffs allege that from 2000-2004 chemical agents were used at FSP almost twothousand times, see Motion, Exh. A at ¶ 59, and that each of these Plaintiffs have been harmed due to use of a chemical agent against them at FSP. Seeid. at ¶¶ 83-350.They have alleged that it is Defendants' policy and practice to return mentally ill patients to FSP. Seeid. at ¶ 54.Both Plaintiffs Thomas and Ulrath contend that they are mentally ill and classified as Close Management inmates, seeid. at ¶¶ 83, 120, 128, 137, and therefore, it is likely they will be returned to FSP, seeid. at ¶¶ 120-122, 143-145.These circumstances are similar to those faced by the courts in Church,supra, and Lynch v. Baxley, 744 F.2d 1452

(11th Cir.1984). Like the plaintiffs in those cases, Plaintiffs Thomas and Ulrath, by virtue of the involuntary nature of their condition, “cannot avoid ‘exposure to the challenged course of conduct” ’ in which Defendants are alleged to engage. Church, 30 F.3d at 1338 (quoting O'Shea v. Littleton, 414 U.S. 488, 497, 94 S.Ct. 669, 677 (1974)). Accordingly, Plaintiffs Thomas and Ulrath have sufficiently alleged that they can reasonably be expected to be returned to FSP and that upon their return to FSP there is a real and immediate threat of future injury. Consequently, the Motion will not be denied as futile.
*13 In so holding, the Court notes that while it will not deny Plaintiffs' proposed amendments on the basis of futility, it makes no comment on the ultimate validity of these claims. Rather, the undersigned finds that Plaintiffs have included sufficient allegations to permit them the opportunity to assert these claims and Defendants' arguments to the contrary are unavailing.
V. Conclusion
In light of the foregoing, the Court does not find a “substantial reason” to deny the Motion, and it is therefore due to be granted.
Accordingly, it is hereby ORDERED:
1. Plaintiffs' Motion for Leave to File Second Amended Complaint, with Rule 3.01(G) [sic] Certification (Doc. No. 127) is GRANTED.
2. Plaintiffs shall file their Second Amended Complaint on or before February 16, 2006.
3. Defendants shall plead in response to the Second Amended Complaint in accordance with the requirements of Rule 15, Federal Rules of Civil Procedure.
4. To the extent Plaintiffs Motion for Leave to File Reply to Defendants Memorandum Opposing Plaintiffs Motion for Leave to Amend Complaint, with Rule 3.01(g) Certification, Supporting Memorandum of Law, and Request for Oral Argument (Doc. No. 130) seeks oral argument on Plaintiffs' Motion for Leave to File Second Amended Complaint, it is DENIED.

DONE AND ORDERED.
M.D.Fla.,2006. Butler v. Crosby Not Reported in F.Supp.2d, 2006 WL 1071988 (M.D.Fla.), 19 Fla. L. Weekly Fed. D 466
END OF DOCUMENT

 
 United States District Court, M.D. Florida, Jacksonville Division.
Jeremiah THOMAS, et al., Plaintiffs, v.
James McDONOUGH, et al., Defendants. No. 3:04-cv-917-J-32HTS.
Aug. 10, 2007.
Cassandra Capobianco, Christopher Michael Jones, Kristen Cooley Lentz, Gainesville, FL, Cullin Avram O'Brien, Randall Challen Berg, Jr., Florida Justice Institute, Inc., Leon Fresco, Holland & Knight, LLP, Miami, FL, George E. Schulz, Jr., Michael Agliata, Holland & Knight, LLP, Jacksonville, FL, for Plaintiffs.
William Peter Martin, Dennis, Jackson, Martin & Fontela, P.A., Tallahassee, FL, J. Dixon Bridgers, III, Vernis & Bowling Of North Florida, P.A., Todd T. Springer, Luks, Santaniello, Perez, Petrillo & Gold, J. Ray Poole, Jr., Constangy, Brooks & Smith, LLC, Michael Lee Glass, Fulmer Leroy Albee Baumann & Glass, Ronald S. Wasilenko, Gobelman, Love, Gavin, Wasilenko & Broughan, LLC, Jacksonville, FL, Paul S. Jones, Luks, Santaniello, Perez, Petrillo & Gold, Orlando, FL, for Defendants.
ORDER
HOWARD T. SNYDER, United States Magistrate Judge.
*1 In this suit, Plaintiffs claim that while at Florida State Prison (FSP) they are “being seriously harmed with chemical agents” in violation of the Eighth Amendment. Second Amended Complaint (Doc. # 142) at 60-61. The case has now progressed for nearly three years, and the discovery period closed on July 31, 2007. See Third Amended Case Management and Scheduling Order (Doc. # 236) at 1. Presently before the Court are the following matters, in regard to which argument was heard on August 6, 2007:
1. Plaintiffs' Motion to Compel Production from Defendants James McDonough and Randall Bryant of Items not Produced in Defendants' Responses to Plaintiffs' Fifth and Eighth Requests to Produce (Doc. # 258; Motion to Compel). The Motion to Compel is opposed. See Defendants James McDonough and

Randall Bryant's Response in Opposition to Plaintiffs' Motion to Compel Production (Doc. # 261; Opposition). Various discovery items that are the subject of the Motion to Compel remain at issue, see Joint Notice of Remaining Outstanding Discovery Issues (Doc. # 278; Joint Notice), and will be addressed in turn.
A. Paragraphs 1 and 2, Fifth Request for Production
Both of these paragraphs ask for information pertaining to the systemwide use of chemical agents. In the Motion to Compel, Plaintiffs suggest this data is needed to “establish that the Secretary had the requisite level of notice of widespread abuse[.]” Motion to Compel at 4 (relying on unpublished, nonprecedential order quoting Valdes v. Crosby, 450 F.3d 1231, 1237 (11th Cir.2006)). Further, they desire “to examine whether there are glaring disparities between the use [of] chemical agents at FSP and the use of chemical agents at all other DOC prisons.”Id. In addition to observing “Plaintiffs have expressly limited their claims for relief to the use of chemical agents at FSP,” Opposition at 8, Defendants explain there are significant differences between the population incarcerated at that facility and the prisoners housed elsewhere. See id. at 9.
Having considered both the parties' written submissions and the arguments made at the hearing, the Court has determined the systemwide information sought is not properly discoverable. Plaintiffs have failed to demonstrate that proof of systemwide abuse is important in establishing notice. The very chain of authority relied upon by Plaintiffs employs the concept of “widespread abuse” in much more limited fashion. See Valdes, 450 F.3d at 1239 (considering “whether Crosby was put on notice by a history of widespread abuse at FSP” ) (emphasis added). The other asserted uses of the data are likewise unconvincing. A sufficient relationship between the proposed discovery and the actual claims has simply not been established.
B. Paragraphs 1-3, Eighth Request for Production
Cell extraction and chemical agent data, in the form of a single document per request category, are sought by these items. Defendants have already provided the information for periods beginning at some point in

1999. See Joint Notice at 2.
*2 Discovery on the use of force at FSP, both in the form of cell extractions and application of chemical agents, strikes the Court as relevant to Plaintiffs' claims. To the extent the documents described in these paragraphs exist and are in Defendants' possession, custody, or control, seeRule 34(a), Federal Rules of Civil Procedure, their production will be compelled.
C. Paragraphs 6-7, Eighth Request for Production
Paragraphs 6 and 7 ask for a document revealing the number of times Plaintiffs were subjected to chemical agents or extracted from their cells from 1996 through 2007, respectively. Some of the chemical usage information has been furnished. See Joint Notice at 3. As with paragraphs 1-3, this data appears relevant and production of the documents described in these paragraphs will be compelled to the extent they exist and are in Defendants' possession, custody, or control.
D. Paragraph 4, Eighth Request for Production
This paragraph seeks a document showing the number of inmates at FSP during the months of January and June for the years 1996-2007. In order to understand the degree to which the use of force at FSP has increased or decreased relative to the size of its population, Plaintiffs would need information about the number of prisoners being housed at various times. Thus, if the document described exists and is in Defendants' possession, custody, or control, the Court will compel its production.
In accordance with the foregoing, the Motion to Compel (Doc. # 258) is GRANTED to the extent Defendants shall, within eleven (11) days from the date of this Order, produce the documents described in paragraphs 1-4 and 6-7 of Plaintiffs' Eighth Request for Production insofar as such exist within their possession, custody, or control.
2. Defendants James McDonough and Randall Bryant's Motion for Protective Order (Doc. # 266; Motion). The Motion is opposed. See Plaintiffs' Response in Opposition to Defendants McDonough and Bryant's Motion for Protective Order (Doc. #

268; Response).
Through the Motion, Defendants request protection from Plaintiffs' request that they produce “[c]olor photographs of representative wings and cells ... at Union Correctional Institution [UCI] of the same or comparable views to” certain photographs of FSP areas. Motion at 2. Defendants imply the photographs would not be relevant to Plaintiffs' claims. See id. at 2-3.It is Plaintiffs' position the portions of the two facilities at issue are very similar and, inasmuch as use of force rates at UCI are much lower than at FSP, the photographs would help to demonstrate the illegitimacy of the actions taken at FSP. See Response at 12-14.
Defendants contend the inmates at the facilities, as well as the rules and policies in place, are materially different. Motion at 2. That the rules and policies are different merely begs the question. Further, for purposes of the Motion, Defendants have not satisfactorily foreclosed the claim that the placementf of mentally ill inmates often depends on factors apart from the individuals' mental status. See Response at 6-8. For these reasons, the Motion (Doc. # 266) is DENIED and, if Defendants maintain in their possession, custody, or control the photographs sought, they shall produce them to Plaintiffs within eleven (11) days from the date of this Order.
*3 DONE AND ORDERED.
M.D.Fla.,2007. Thomas v. McDonough Not Reported in F.Supp.2d, 2007 WL 2320621 (M.D.Fla.)
END OF DOCUMENT

 
 United States District Court, M.D. Florida, Jacksonville Division.
Jeremiah THOMAS, et al., Plaintiffs, v.
James McDONOUGH, et al., Defendants. No. 3:04-cv-917-J-32HTS.
Oct. 2, 2007.
Cassandra Capobianco, Christopher Michael Jones, Kristen Cooley Lentz, Gainesville, FL, Cullin Avram O'Brien, Randall Challen Berg, Jr., Florida Justice Institute, Inc., Leon Fresco, Holland & Knight, LLP, Miami, FL, George E. Schulz, Jr., Michael Agliata, Holland & Knight LLP, Jacksonville, FL, for Plaintiffs.
William Peter Martin, Dennis, Jackson, Martin & Fontela, P.A., Tallahassee, FL, J. Dixon Bridgers, III, Vernis & Bowling Of North Florida, PA, Todd T. Springer, Luks, Santaniello, Perez, Petrillo & Gold, Michael Lee Glass, Fulmer Leroy Albee Baumann & Glass, Michael D. Kendall, Ronald S. Wasilenko, Gobelman, Love, Gavin, Wasilenko & Broughan, LLC, Jacksonville, FL, Paul S. Jones, Luks, Santaniello, Perez, Petrillo & Gold, Orlando, FL, for Defendants.
ORDER
HOWARD T. SNYDER, United States Magistrate Judge.
*1 This cause is before the Court on Plaintiffs' Reasserted Motion to Compel Production from Defendants James McDonough and Randall Bryant of Items Not Produced in Defendants' Responses to Plaintiffs' Eighth Request to Produce, Nor in Response to the Court's Order Dated August 10, 2007 (Doc. # 283; Motion). The Motion is opposed. See Defendants James McDonough and Randall Bryant's Response in Opposition to Plaintiffs' Reasserted Motion to Compel Production (Doc. # 315; Response).
In the Order (Doc. # 280; Order) entered on August 10, 2007, the Court compelled the production of “the documents described in paragraphs 1-4 and 6-7 of Plaintiffs' Eighth Request for Production insofar as such exist within [Defendants'] possession, custody,

or control.” Order at 4-5 (emphasis added). Each of the requests at issue specifically sought “[o]ne document” containing the desired information. Plaintiffs' Eighth Request for Production to Defendant McDonough, attached as the fifth exhibit to the Motion, at 5. Plaintiffs, however, now contend Defendants should be ordered to produce “data in any form that is reasonably responsive to the spirit of Plaintiffs' request.”Motion at 10. Defendants claim they “have complied with the court's August 10, 2007 order by producing those records and information which could be produced in ‘a single document[.]’ ” Response at 5.FN1
FN1. Plaintiffs' argument with respect to production of use of force data between November 1999 and October 2001, see Motion at 10, is presumably now moot. See Response at 5 n. 4.
While the Court recognizes Plaintiffs' asserted good intentions in propounding the discovery, see Motion at 4, the requests unambiguously demand that a single document be produced in relation to each category of information. Defendants will not be forced to create a document that is not currently in existence or produce data in a form that was not requested. Accordingly, the Motion (Doc. # 283) is DENIED.
DONE AND ORDERED.
M.D.Fla.,2007. Thomas v. McDonough Not Reported in F.Supp.2d, 2007 WL 2900437 (M.D.Fla.)
END OF DOCUMENT

 
 United States District Court, M.D. Florida, Jacksonville Division.
Sylvester BUTLER, et al., Plaintiffs, v.
Walter A. McNEIL, etc., et al., Defendants. No. 3:04-cv-917-J-32JRK.
July 24, 2008.
Cassandra Capobianco, Christopher Michael Jones, Kristen Cooley Lentz, Gainesville, FL, Cullin Avram O'Brien, Joshua Aaron Glickman, Randall Challen Berg, Jr., Florida Justice Institute, Inc., Miami, FL, George E. Schulz, Jr., Leon Fresco, Holland & Knight, LLP, Jacksonville, FL, for Plaintiffs.
William Peter Martin, Dennis, Jackson, Martin & Fontela, PA, Kathleen Marie Von Hoene, Office of the General Counsel, James Paul Waczewski, Luks, Santaniello, Perea, Petrillo & Gold, William Peter Martin, Dennis, Jackson, Martin & Fontela, PA, Kathleen Marie Von Hoene, Office of the General Counsel, Tallahassee, FL, Diane G. Cassaro, George, Hartz & Lundeen, Coral Gables, FL, J. Dixon Bridgers, III, Vernis & Bowling Of North Florida, PA, Nicholas James Christopolis, Todd T. Springer, Luks, Santaniello, Perez, Petrillo & Gold, LLC, J. Ray Poole, Jr., Constangy, Brooks & Smith, LLC, Michael Lee Glass, Fulmer, Leroy, Albee, Baumann & Glass, PLC, Ronald S. Wasilenko, Gobelman, Love, Gavin, Wasilenko & Broughan, LLC, Jacksonville, FL, Paul S. Jones, Luks, Santaniello, Perez, Petrillo & Gold, LLC, Orlando, FL, for Defendants.
ORDERFN1
FN1. Under the E-Government Act of 2002, this is a written opinion and therefore is available electronically. However, it has been entered only to decide the motion or matter addressed herein and is not intended for official publication or to serve as precedent. TIMOTHY J. CORRIGAN, District Judge.
*1 This case is before the Court on three pretrial motions. The Court incorporates by reference the motion hearing held on November 1, 2007.

A. Defendants McNeil and Bryant's Motion for Summary Judgment (on Mootness/Standing Grounds) (Doc. 253); response (Doc. 325); reply (Doc. 349); sur-reply (Doc. 354)
In this motion, defendants seek summary judgment as to the remaining claims brought by plaintiffs Thomas, Butler, Frazier, Williams, and Morgan FN2 on the grounds that these plaintiffs are no longer housed at Florida State Prison (“FSP”). Given that inmates are transferred from one facility to another based on a variety of factors, that such transfers apparently occur with relative frequency, and that transfer back to FSP cannot be ruled out (indeed one plaintiff was transferred back to FSP after this motion was filed), the Court finds these plaintiffs continue to have standing and their claims are not moot, notwithstanding any current housing assignment. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992).
FN2. Though styled as a motion against the claims of plaintiff Eugene Ulrath as well, Mr. Ulrath has since been dismissed from this lawsuit. See Doc. 377.
B. Defendants McNeil and Bryant's Motion for Summary Judgment (on Substantive Grounds) (Doc. 306); response (Doc. 325); reply (Doc. 349); sur-reply (Doc. 354)
To demonstrate entitlement to injunctive relief, plaintiffs must show the existence of a constitutional violation and suggested relief to remedy the wrong. LaMarca v. Turner, 995 F.2d 1526, 1541-43 (11th Cir.1993). Defendants move for summary judgment claiming that plaintiffs cannot meet either prong. The Court finds plaintiffs have sufficiently raised disputed issues of material fact as to the circumstances in which chemical agents are used on mentally ill inmates at FSP such that plaintiffs should be permitted to try to prove a constitutional violation at trial; and that plaintiffs have further sufficiently raised disputed issues of material fact as to whether the injunctive relief they seek will remedy the alleged wrong. The Court therefore finds the motion for summary judgment is due to be denied.
C. Plaintiffs' Daubert Motion as to Richard Lipsey (Doc. 296); response (Doc. 341)

Here, plaintiffs move to exclude the expert testimony of defendants' toxicology expert, Dr. Richard Lipsey. Having reviewed the relevant papers, the Court has concerns as to whether some of Dr. Lipsey's opinions are within his area of expertise. However, because this is now going to a bench trial, the Court's Daubert gatekeeping function is less essential than with a jury trial. Gibbs v. Gibbs, 210 F.3d 491, 500 (5th Cir.2000). Thus, rather than havingDr. Lipsey come before the Court for a separate Daubert hearing (which would likely necessitate his appearing twice because the Court does intend to permit defendants to offer at least some of Dr. Lipsey's testimony at trial), the Court will allow the challenged testimony to be presented at trial, and will determine afterward whether to exclude any of it. See, e.g., Clark v. Richman, 339 F.Supp.2d 631, 648-49 (M.D.Pa.2004) (reserving admissibility and reliability decisions until after challenged expert testimony has been received at non-jury trial); United States v. Brown, 279 F.Supp.2d 1238, 1243-45 (S.D.Ala.2003) (same).
*2 Accordingly, it is hereby
ORDERED:
1. Defendants' Motions for Summary Judgment (Docs.253, 306) are DENIED; Plaintiffs' Motion to Exclude Dr. Lipsey's Testimony (Doc. 296) is DENIED to the extent that the Court will reserve its admissibility determination until trial.
2. The parties should be prepared to argue defendants' Motion in Limine (Doc. 388), issues related to plaintiffs' Amended Notice requesting the Court take judicial notice (Doc. 387), and any other matters presented in the parties' forthcoming pretrial stipulation at the Final Pretrial Conference which remains set for August 20, 2008 at 2:00 p.m. in Courtroom 10B.
3. The August 1, 2008 telephone status conference is CANCELLED.
DONE AND ORDERED.
M.D.Fla.,2008. Butler v. McNeil Slip Copy, 2008 WL 2916302 (M.D.Fla.)

END OF DOCUMENT

 
 Case 3:04-cv-00917-TJC-JRK Document 58 Filed 01/28/05 Page 1 of 2 PageID 162

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA JACKSONVILLE DIVISION

SYLVESTER BUTLER, et al.,

Plaintiffs,

vs.

Case No. 3:04-cv-917-J-32MMH

JAMES V. CROSBY, JR., et al.,

Defendants. _____________________________________/

O R D E R THIS CAUSE is before the Court on Plaintiffs’ St ipulated Motion, with Rule 3.01(g) Certification, to Enlarge Timeto Respond to Defendants’ Motoi n to Stay/Abate (Doc. No. 56; Motion) filed on January 27, 2005. In the Motion, Plaintiffs seek an extension of time to respond to Defendants’ Motion to Stay/ Abate until ten days after Defendants’ anticipated second Motion to Stay/Abate is filed with the Court. Counsel for Plaintiff represents to the Court that Defendants’ counsel does not objec t to the relief requested in t he Motion. Accordingly, it is ORDERED: 1. Plaintiffs’ Stipulated Motion, with Rule 30. 1(g) Certification, to Enlarge Time to Respond to Defendants’ Motion to Stay/Abate (Doc. No. 56) is GRANTED.

Case 3:04-cv-00917-TJC-JRK Document 58 Filed 01/28/05 Page 2 of 2 PageID 163 2. Plaintiffs shall have ten days fromhte date Defendants file their second Motion
to Stay/Abate to respond to the motions. DONE AND ORDERED at Jacksonville, Florida on January 28, 2005.
Copies to: Counsel of Record Pro Se Parties
-2-

 
 Case 3:04-cv-00917-TJC-JRK Document 59 Filed 01/28/05 Page 1 of 2 PageID 164

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA JACKSONVILLE DIVISION

SYLVESTER BUTLER, et al.,

Plaintiffs,

vs.

Case No. 3:04-cv-917-J-32MMH

JAMES V. CROSBY, JR., et al.,

Defendants. _____________________________________/

O R D E R

THIS CAUSE is before the Court on Plainti ffs’ Stipulated Motion, with Rule

3.01(g) Certification, to Enlarge Time to Personally Serve Defendants Anderson, Ellis,

Lampp, Musselman, Redd, Tricocci, Wh itehurst and Allow Amendment of the

Summons for these Defendants (Doc. No. 57; Motion) filed on January 27, 2005. In

the Motion, Plaintiffs seek a thirty (30) day extension of time in which to serve

Defendants Tony Anderson, Wilfred D ean Ellis, Kenneth Lampp, Keith Musselman,

Mark Redd, Steven Tricocci and Wendell Whitehurst. See Motion at 1. In addit ion,

Plaintiffs seek an order from the Court allowing the summonses for these Defendants

to be amended. See id. According to the Motion, these Defendants were served by

substitute service and they now intend to file motions to quash that service. Seeid. at

2-5. Finally, Plaintiffs represent to the Court that Defendants’ counsel does not object

to the relief requested in the Motion. See id. at 7.

Pursuant to Rule 4(m) of the Federal Rules of Civil Procedure (Rule(s)), a court

may allow additional time for service of process when a plaintiff shows “good cause”

Case 3:04-cv-00917-TJC-JRK Document 59 Filed 01/28/05 Page 2 of 2 PageID 165
for failing to serve a defendant within the 120 day time frame. See Rule 4(m). In this case, the Court finds that Plaintiffs hav e shown good cause and that they should be granted an extension of time to reserve these Defendants. Accordingly, it is
ORDERED: 1. Plaintiffs’ Stipulated Motion, with Rule 3.01(g) Certification, to Enla rge Time to Personally Serve Defendants A nderson, Ellis, Lampp, Musselman, Redd, Tricocci, Whitehurst and Allow Amendment of the Summons for these Defendants (Doc. No. 57) is GRANTED. 2. Plaintiffs are directed to submitproperly completed alias summonses for these Defendants to the Clerk’s Office and the Clerk of the Court is directed to issue the alias summonses. 3. Plaintiffs shall have until February 28, 2005 within which to personally effect service of process upon DefendantsAnderson, Ellis, Lampp,Musselman, Redd, Tricocci and Whitehurst. DONE AND ORDERED at Jacksonville, Florida on January 28, 2005.
Copies to: Counsel of Record Pro Se Parties
-2-

 
 Case 3:04-cv-00917-TJC-JRK Document 91-2 Filed 05/11/05 Page 1 of 32 PageID 368

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA JACKSONVILLE DIVISION

SYLVESTER BUTLER, KELYIN FRAZIER, CURT MASSIE, JEREMIAH THOMAS, EUGENE ULRATH, REGINALD WILLIAMS,

Plaintiffs, v.

JAMES V. CROSBY, JR., BRADLEY CARTER, GEORGE SAPP, STEPHEN SIRMONES, JOE LAZENBY JR., ALLEN CLARK, MARK REDD, KEITH MUSSELMAN, TONY ANDERSON, JAMES WILSON, WILLIAM MUSE, COLIN HALLE, STEVEN TRICOCCI, TIM CHASTAIN, RODNEY BARNETT, RONNIE BARTON, KENNETH LAMPP, WENDELL WHITEHURST, STACEY GREEN, DAVID REYNOLDS, JOHN RIGGS, GLYNN REEDER, JOHN RIZER, OSCAR SHIPLEY, DEAN ELLIS, JEFFREY LINDSEY, BILLY JARVIS, each in his individual capacity,

Civil Action No. 3:04-cv-917-J-32MMH

Defendants.

AMENDED COMPLAINT AND JURY DEMAND Plaintiffs, Sylvester Butler, Kelvin Frazier, Curt Massie, Jeremiah Thomas, Reginald Williams and Eugene Ulrath, sue Defendants James V. Crosby, Jr., Bradley Carter, George Sapp, Stephen Sirmones, Joe Lazenby Jr., Allen Clark, Mark Redd, Keith Musselman, Tony Anderson, James Wilson, William Muse, Colin Halle, Steven Tricocci, Tim Chastain, Rodney Barnett,

EXHlBA\1---

Case 3:04-cv-00917-TJC-JRK Document 91-2 Filed 05/11/05 Page 2 of 32 PageID 369
Ronnie Barton, Kenneth Lampp, Wendel Whitehurst, Stacey Green, David Reynolds, John Riggs, Glynn Reeder, John Rizer, Oscar Shipley, Dean Ellis, Jeffrey Lindsey, and Billy Jarvis, and allege:
Preliminary Statement
1. This is a civil rights action brought by six inmates at Florida State Prison, pursuant to 42 U.S.C. § 1983, seeking compensatory and punitive damages and alleging that Defendants have engaged in a pattern and practice of excessive and unauthorized use of chemical agents against Plaintiffs and other Florida State Prison inmates in violation of the Eighth and Fourteenth Amendments to the United States Constitution. Defendants include Florida State Prison correctional officers who have used chemical agents against the Plaintiffs maliciously and sadistically for the very purpose of causing harm and not in a good faith effort to maintain or restore order. Defendants also include supervisors at Florida State Prison who have participated, facilitated, encouraged, or acquiesced in the correctional officers' abuse of the Plaintiffs with chemical agents.
Jurisdiction 2. Jurisdiction of this Court is invoked pursuant to 28 U.S.C. § 1331 in that this is a civil action arising under the Constitution of the United States. 3. Jurisdiction of this Court is invoked pursuant to 28 U.S.C. § 1343(a)(3) in that this action seeks to redress the deprivation, under color of state law, of rights secured to the Plaintiffs by the Eighth and Fourteenth Amendments to the Constitution of the United States.
2

Case 3:04-cv-00917-TJC-JRK Document 91-2 Filed 05/11/05 Page 3 of 32 PageID 370
4. The Plaintiffs' claims for relief are predicated upon 42 U.S.C. § 1983, which authorizes actions to redress the deprivation, under color of state law, of rights, privileges and immunities secured to the Plaintiffs by the Constitution and laws of the United States.
5. The Plaintiffs' claims for attorneys' fees and costs is predicated upon 42 U.S.C. § 1988, Which authorizes the award of attorneys' fees and costs to prevailing plaintiffs in actions brought pursuant to 42 U.S.C. § 1983.
6. All Plaintiffs have fully exhausted their administrative remedies. Venue
7. Venue is proper in this District under 28 U.S.C. § 1391(b) because at least one of the Defendants resides in this District and a substantial part of the events and omissions giving rise to Plaintiffs' claims occurred in this District.
Parties 8. Plaintiff, Sylvester Butler, is a prisoner currently incarcerated at Santa Rosa Correctional Institution in Santa Rosa County, Florida. When the events giving rise to his claim occurred, he was incarcerated at Florida State Prison, located in Bradford County, Florida. 9. Plaintiff, Kelvin Frazier, is a prisoner currently incarcerated at Charlotte Correctional Institution in Charlotte County, Florida. When the events giving rise to his claim occurred, he was incarcerated at Florida State Prison, located in Bradford County, Florida. 10. Plaintiff, Curt Massie, is a prisoner currently incarcerated at Desoto Correctional Institution Annex in Desoto County, Florida. When the events giving rise to this his claim occurred, he was incarcerated at Florida State Prison, located in Bradford County, Florida.
3

Case 3:04-cv-00917-TJC-JRK Document 91-2 Filed 05/11/05 Page 4 of 32 PageID 371
11. Plaintiff, Jeremiah Thomas, is a prisoner currently incarcerated at Union Correctional Institution, located in Union County, Florida. When the events giving rise to his claim occurred, he was incarcerated at Florida State Prison, located in Bradford County, Florida.
12. Plaintiff, Eugene Ulrath, is a prisoner currently incarcerated at Union Correctional Institution in Union County, Florida. When the events giving rise to his claim occurred, he was incarcerated at Florida State Prison in Bradford County, Florida.
13. Plaintiff, Reginald Williams, is a prisoner currently incarcerated at Union Correctional Institution in Union County, Florida. When the events giving rise to his claim occurred, he was incarcerated at Florida State Prison in Bradford County, Florida.
14. Defendant, James V. Crosby, Jr. was the Warden of Florida State Prison from February 1998 to July 18, 2001. Defendant Crosby is currently employed as the Secretary of the Florida Department of Corrections. He is sued in his individual capacity.
15. Defendant, Bradley Carter, was the Warden of Florida State Prison from July 18, 2001 to October 1, 2002. He is sued in his individual capacity.
16. Defendant, George Sapp, was an Assistant Warden employed at Florida State Prison from August 2, 1999 to November 1, 2000. He is sued in his individual capacity.
17. Defendant, Stephen Sirmones, was an Assistant Warden employed at Florida State Prison from June 30, 2000 to November 7, 2002. He is sued in his individual capacity.
18. Defendant, Joe Lazenby Jr., was an Assistant Warden employed at Florida State Prison from September 7, 2001 to January 30, 2003. He is sued in his individual capacity.
4

Case 3:04-cv-00917-TJC-JRK Document 91-2 Filed 05/11/05 Page 5 of 32 PageID 372
19. Defendant, Allen Clark, was a Correctional Officer Major and/or Colonel employed at Florida State Prison at all times material to this action. He is sued in his individual capacity.
20. Defendant Mark Redd, was a Correctional Officer Colonel employed at Florida State Prison from September 18, 1998 to June 28, 2001. He is sued in his individual capacity.
21. Defendant, Keith Musselman, was a Correctional Officer Sergeant employed at Florida State Prison at all times material to this action. He is sued in his individual capacity.
22. Defendant, Tony Anderson, was a Correctional Officer Lieutenant employed at Florida State Prison at all times material to this action. He is sued in his individual capacity.
23. Defendant, James Wilson, was a Correctional Officer Sergeant employed at Florida State Prison at all times material to this action. He is sued in his individual capacity.
24. Defendant, William Muse, was a Correctional Officer Captain employed at Florida State Prison at all times material to this action. He is sued in his individual capacity.
25. Defendant, Colin Halle, was a Correctional Officer Lieutenant employed at Florida State Prison at all times material to this action. He is sued in his individual capacity.
26. Defendant, Steven Tricocci, was a Correctional Officer Sergeant employed at Florida State Prison at all times material to this action. He is sued in his individual capacity.
27. Defendant, Tim Chastain, was a Correctional Officer Captain employed at Florida State Prison at all times material to this action. He is sued in his individual capacity.
28. Defendant, Rodney Barnett, was a Correctional Officer Sergeant employed at Florida State Prison at all times material to this action. He is sued in his individual capacity.
5

Case 3:04-cv-00917-TJC-JRK Document 91-2 Filed 05/11/05 Page 6 of 32 PageID 373
29. Defendant, Ronnie Barton, was a Correctional Officer Sergeant employed at Florida State Prison at all times material to this action. He is sued in his individual capacity.
30. Defendant, Kenneth Lampp, was a Correctional Officer Captain employed at Florida State Prison at all times material to this action. He is sued in his individual capacity.
31. Defendant, Wendel Whitehurst, was a Correctional Officer Duty Warden and Assistant Warden employed at Florida State Prison at all times material to this action. He is sued in his individual capacity.
32. Defendant, Stacey Green, was a Correctional Officer Sergeant employed at Florida State Prison at all times material to this action. He is sued in his individual capacity.
33. Defendant, David Reynolds, was a Correctional Officer Sergeant employed at Florida State Prison at all times material to this action. He is sued in his individual capacity.
34. Defendant, John Riggs, was a Correctional Officer Captain employed at Florida State Prison at all times material to this action. He is sued in his individual capacity.
35. Defendant, Glynn Reeder, was a Correctional Officer Sergeant employed at Florida State Prison at all times material to this action. He is sued in his individual capacity.
36. Defendant, John Rizer, was a Correctional Officer Sergeant employed at Florida State Prison at all times material to this action. He is sued in his individual capacity.
37. Defendant, Oscar Shipley, was a Correctional Officer Sergeant employed at Florida State Prison at all times material to this action. He is sued in his individual capacity.
38. Defendant, Dean Ellis, was a Correctional Officer Captain employed at Florida State Prison at all times material to this action. He is sued in his individual capacity.
6

Case 3:04-cv-00917-TJC-JRK Document 91-2 Filed 05/11/05 Page 7 of 32 PageID 374
39. Defendant, Billy Jarvis, was a Major and/or Duty Warden employed at Florida State Prison at all times material to this action. He is sued in his individual capacity.
40. Defendant, Jeffrey Lindsey, was a Correctional Officer Sergeant employed at Florida State Prison at all times material to this action. He is sued in his individual capacity.
41. At all times relevant to the events described herein, the Defendants were acting under color of state law.
Factual Allegations 42. Employees of Florida State Prison are authorized to use a variety of types of force where the circumstances warrant, including hands-on physical force, chemical agents, electronic immobilization devices, batons, and specialty munitions, as described in Rule 33-602.210, Florida Administrative Code, promulgated by the Florida Department of Corrections. 43. Rule 33-602.210(14), F.A.C., provides that three types of chemical agents may be used against prisoners: 1. Oleoresin Capsicum (pepper spray), 2. Orthochlorbenzal Malononitrile or Orthochlorobenzylidene Malononitrile (CS tear gas), and 3. Cloroacetophene (CN tear gas). 44. As described in Rule 33-602.210(14), F.A.C., each of these chemical agents causes, and is intended to cause, intense physical pain when applied to human beings. The physical effects described by the Rule are as follows: (a) OC pepper spray "causes tearing and involuntary closing of the eyes, nasal discharge, sneezing, disorientation, and the sensation of respiratory distress;" (b) CS tear gas "causes eyes to bum and tear, nasal discharge, and skin and
7

Case 3:04-cv-00917-TJC-JRK Document 91-2 Filed 05/11/05 Page 8 of 32 PageID 375
upper respiratory irritation;" and (c) CN tear gas "causes tearing of the eyes, nasal discharge, and skin and upper respiratory irritation."
45. When an inmate is exposed to chemical agents, DOC rule 33-602.210 (14) and accepted correctional practice requires that the inmate be given a shower after the use of force.
46. Each Plaintiff was housed in Close Management at the Florida State Prison each time that he was abused with chemical agents. They were each in single confinement cells that had solid doors and limited ventilation.
47. Chemical agents, including OC pepper spray, CS tear gas, and CN tear gas, became the primary method of force used against prisoners during Defendant Crosby's tenure as Warden of Florida State Prison and continued to increase under his successor, Defendant Carter.
48. At Florida State Prison, chemical agents were used 238 times in 2000, 385 times in 2001, and 447 times in 2002. This represents an 87% increase in the use of chemical agents over this period of time.
49. As Defendants escalated the use of chemical agents, pnsoners increasingly complained that correctional officers were using chemical agents as a means of retaliating against them for lawful activities, such as seeking assistance, asking that staff follow the established rules, filing grievances, or otherwise complaining about their conditions of incarceration.
50. Florida State Prison inmates filed countless grievances alleging that correctional officers were using chemical agents on them without justification and in grossly excessive quantities.
8

Case 3:04-cv-00917-TJC-JRK Document 91-2 Filed 05/11/05 Page 9 of 32 PageID 376
51. Defendants Crosby, Carter, Sapp, Sirmones, and Lazenby reviewed numerous inmate grievances alleging abuse with chemical agents and had the responsibility to respond appropriately. They consistently failed to follow up on grievances alleging abuse with chemical agents, and failed to take action even when Department of Corrections Inspector General's Office, charged with investigating claims of abuse throughout the Florida prison system, determined that a complaint should be resolved at the institutional level.
52. Defendants Crosby, Carter, Sapp, Sirmones, and Lazenby reviewed the use of force reports submitted by the correctional officers who used chemical agents against inmates. They were responsible for making a recommendation as to whether the use of force should be approved or disapproved.
53. On information and belief, Defendants Crosby, Carter, Sapp, Sirmones and Lazenby never once recommended that the use of chemical agents be disapproved.
54. On information and belief, Defendants Crosby, Carter, Sapp, Sirmones and Lazenby never requested a special investigation into the emerging pattern of increased use of chemical agents and the corresponding claims that these weapons were being used to abuse and injure Florida State Prison inmates, including Plaintiffs.
55. On information and belief, Defendants Crosby, Carter, Sapp, Sirmones and Lazenby never made an effort to identify officers who were using chemical agents as a matter of routine or inquire about why there was such a dramatic rise in the use of these weapons.
9

Case 3:04-cv-00917-TJC-JRK Document 91-2 Filed 05/11/05 Page 10 of 32 PageID 377
56. Defendants Crosby and Carter promoted officers who were using chemical agents with increasing frequency, even though there were rising numbers of complaints of abuse against those same officers.
57. Defendants Crosby and Carter failed to train, supervise and discipline correctional officers to prevent the e?Ccessive and unjustified use of chemical agents against Florida State Prison inmates, including Plaintiffs.
58. Defendants Crosby and Carter failed to require videotaping of the use of chemical agents, although video cameras were available at the prison and every other type of force was required to be videotaped for review.
59. Defendants Crosby and Carter's policy of not videotaping the use of chemical agents was intended to avoid creating a record that would allow meaningful review of the use of chemical agents.
60. Defendants Redd, Clark and Jarvis held the most senior security staff positions at Florida State Prison and were responsible for direct supervision of the correctional officers who were using chemical agents.
61. Defendants Redd, Clark, and Jarvis actively encouraged the security staff to use chemical agents to humiliate and abuse prisoners and frequently authorized the use of chemical agents with full knowledge that the force was being used solely to inflict pain, including against Plaintiffs.
62. Defendants Crosby, Carter, Sapp, Sirmones, Lazenby, Redd, Clark and Jarvis routinely authorized the use of chemical agents, including against Plaintiffs, without taking steps
10

Case 3:04-cv-00917-TJC-JRK Document 91-2 Filed 05/11/05 Page 11 of 32 PageID 378
to ensure that the use of force was consistent with constitutional standards and Rule 33-602.210, F.A.C.
63. Defendants Crosby, Carter, Sapp, Sirmones, Lazenby, Redd, Clark and Jarvis actively implemented an unwritten policy that correctional officers were to use chemical agents to inflict corporal punishment on Florida State Prison inmates as a method of injuring and humiliating them.
64. In August 2000, a group of Florida State Prison inmates went on a hunger strike to protest the increasingly brutal use of chemical agents against them. They requested a meeting with Defendant Crosby to discuss their demand that he take action to stop the completely unjustified use of chemical agents against them.
65. Defendant Crosby refused to meet with the prisoners who were seeking relief from the officers who were using chemical agents against them for improper reasons and in response to past conduct.
66. As a result of the pattern and practice of using chemical agents to inflict pain, encouraged and facilitated by Defendants Crosby, Carter, Sapp, Sirmones, Lazenby, Redd, Clark, and Jarvis, the Plaintiffs suffered severe injuries to their skin, eyes, lungs, or mental health.
Sylvester Butler 67. Plaintiff Butler is a prisoner in the custody of the Florida Department of Corrections. At all times material to the Complaint he was incarcerated at Florida State Prison.
11

Case 3:04-cv-00917-TJC-JRK Document 91-2 Filed 05/11/05 Page 12 of 32 PageID 379
68. Plaintiff Butler has a history of psychiatric problems and is borderline developmentally disabled.
69. On October 3, 2000, while at Florida State Prison, Plaintiff Butler sought medical attention by declaring a medical emergency to security staff.
70. In response, Defendants Chastain and Reeder turned off the exhaust fans, approached his cell, unlocked the food flap and Defendant Reeder began spraying chemical agents into the cell. The can used was approximately the size of a fire extinguisher, with a long hose and nozzle that was inserted into the cell.
71. Despite Plaintiff Butler's compliance with all orders, Defendants returned twice during the next hour and sprayed tear gas into his cell. No warnings were given before chemical agents were used.
72. Defendants did not take Plaintiff Butler to the shower so he could rinse off the chemicals.
73. Defendant Clark authorized this use of force against Plaintiff Butler with full knowledge that it was being used solely as a means oftorture and intimidation.
74. Defendant Reeder wrote a pretextual and false Use of Force report alleging that force was used because Plaintiff Butler was "beating on his cell door and was refusing all verbal orders from me to cease his disorderly conduct or chemical agents would be administered." He also stated that he used only three 1-second bursts of pepper spray and of tear gas.
75. Defendant Reeder fabricated this Use of Force Report with the intention of covering up his unjustified and excessive use of chemical agents on Plaintiff Butler.
12

Case 3:04-cv-00917-TJC-JRK Document 91-2 Filed 05/11/05 Page 13 of 32 PageID 380
76. In a further attempt to conceal his improper use of force, Defendant Reeder wrote Plaintiff Butler a disciplinary report for disorderly conduct.
77. Defendants Reeder, Chastain and Clark were aware that the use of force on Plaintiff Butler was not necessary to maintain or restore order because he was locked in his cell and only asking for medical attention.
78. Plaintiff Butler developed large, water filled blisters on his hip. The blisters eventually broke and Plaintiff Butler's skin peeled off, leaving his entire hip with a raw, seeping wound.
79. Plaintiff Butler has exhausted all available administrative remedies regarding the use of chemical agents against him on October 3, 2000.
Kelvin Frazier 80. Plaintiff Kelvin Frazier is a prisoner in the custody of the Florida Department of Corrections. At all times material to the Complaint he was incarcerated at Florida State Prison. 81. Plaintiff Frazier has asthma, a condition that causes inflammation of the lungs and reduced breathing capacity. 82. On January 4, 2001, Defendants Reynolds and Riggs sprayed Plaintiff Frazier in response to his request to speak to Defendant Riggs, a Captain. 83. When Defendant Riggs arrived at Plaintiff Frazier's cell, instead of speaking with Plaintiff Frazier he directed Defendant Reynolds to spray pepper spray into the cell using a canister approximately the size of a fire extinguisher. No orders or warnings were issued to
13

Case 3:04-cv-00917-TJC-JRK Document 91-2 Filed 05/11/05 Page 14 of 32 PageID 381
Plaintiff Frazier. Defendants Riggs and Reynolds continued to spray pepper spray and tear gas into Plaintiff Frazier's over the course of the next halfhour.
84. The quantity of chemical agents used by Defendants was so great that Plaintiff Frazier was soaking wet, as were the walls, floor, and his personal property.
85. After exposure to chemical agents, Plaintiff Frazier had an asthma attack leaving him in respiratory distress. Blisters later formed on Plaintiff Frazier's neck and his skin started to peel off. Plaintiff Frazier had second-degree chemical bums on his neck and around his left ear.
86. In order to cover up the unjustified use of force, Defendant Reynolds wrote a Use of Force Report that stated Plaintiff Frazier was "being loud and disruptive by yelling and kicking on his cell door" and that "he was ordered numerous times to cease his disruptive conduct, but to no avail." He also stated that he used only three 1-second bursts of both pepper spray and tear gas.
87. The Use of Force Report written by Defendant Reynolds is false. 88. Plaintiff Frazier's disciplinary report for disorderly conduct, written to further conceal the Defendants' unjustified use of force, was overturned on appeal. 89. On January 11, 2001, Defendants Reeder and Lampp sprayed Plaintiff Frazier with chemical agents in retaliation for the grievances he filed about the previous week's use of force. Plaintiff Frazier received no warnings from Defendants before they sprayed chemical agents into his cell. 90. The chemical agents aggravated the bums on Plaintiff Frazier's neck and also burned his forearms.
14

Case 3:04-cv-00917-TJC-JRK Document 91-2 Filed 05/11/05 Page 15 of 32 PageID 382
91. Defendants Reeder and Lampp were aware that the use of force on Plaintiff Frazier was not necessary to maintain or restore order because Plaintiff Frazier was quiet and locked in his cell.
92. Defendant Reeder wrote a Use of Force Report stating that he "observed Inmate Frazier beating on his cell door, and [sic] was refusing all verbal orders from me to cease his disorderly conduct or chemical agents would be administered." He also stated that he sprayed only three 1-second bursts of pepper spray.
93. This was a false report written to cover up the unjustified and excessive use of force against Plaintiff Frazier.
94. Plaintiff Frazier received a disciplinary report for disorderly conduct but it was overturned on appeal.
95. Plaintiff Frazier has exhausted all available administrative remedies regarding the matters described herein. He filed grievances about both incidents all the way to the Secretary's office, explaining that in each case the use of chemical agents was unjustified. He received the same responses back on both sets of grievances, each stating that his request for action was denied because the Office of the Inspector General was conducting a review. Plaintiff Frazier was never notified about the outcome of the Inspector General's investigations.
Curt Massie 96. Plaintiff Curt Massie is a prisoner in the custody of the Florida Department of Corrections. At all times material to the Complaint he was housed at Florida State Prison.
15

Case 3:04-cv-00917-TJC-JRK Document 91-2 Filed 05/11/05 Page 16 of 32 PageID 383
97. Plaintiff Massie is a 41-year-old man diagnosed with Obsessive Compulsive Disorder and Delusional Disorder. At all times material to the Complaint he was taking psychotropic medication to treat his mental illness.
98. On October 8, 2000, Defendants Green and Halle used chemical agents on Plaintiff Massie to punish him for making a funny face behind a nurse's back.
99. Defendants Green and Halle failed to issue any warnings or orders to Plaintiff Massie before emptying cans of pepper spray and CS tear gas into his locked cell.
100. To justify the use of chemical agents, Defendant Green wrote a Use of Force Report stating that force was used because Plaintiff Massie had cursed at staff, screamed threats, and refused several orders to stop. He also stated that he used only three 1-second bursts of both pepper spray and tear gas.
101. The Use of Force Report written by Defendant Green falsely states the reasons for the use of force and the amount of chemical agents used on Plaintiff Massie.
102. Defendant Clark authorized this use of force with full knowledge that it was unjustified.
103. When Plaintiff Massie was taken to the shower, Defendant Green turned the hot water on to intensify the pain Plaintiff Massie was experiencing from the chemical agents.
104. Defendants failed to give Plaintiff Massie clean sheets for several hours and he was never issued a clean blanket.
16

Case 3:04-cv-00917-TJC-JRK Document 91-2 Filed 05/11/05 Page 17 of 32 PageID 384
105. Plaintiff Massie suffered second-degree chemical bums that caused large fluid-filled blisters and inflamed skin on his left arm, left leg, back and hip. The blisters on Plaintiff Massie's skin later burst, leaving raw exposed skin.
106. Plaintiff Massie still experiences pain and burning when his skin is exposed to direct sunlight.
107. Despite Plaintiff Massie's extreme reaction to chemical agents, Defendants Bridges and Lampp again authorized and used these weapons on him on September 23, 2001.
108. In order to avoid creating a record that would allow meaningful review of the use of chemical agents against Plaintiff Massie, Defendants Clark, Green, and Halle failed to videotape either of the incidents when chemical agents were used against him, even though these were not spontaneous uses of force and there was ample time to obtain a video camera.
109. Plaintiff Massie has exhausted all available administrative remedies regarding the matters described herein. In his grievance appeal to the DOC Central Office he explained that Defendant Green used force against him vindictively and excessively. The response from Central Office states that the DOC Inspector General's office was reviewing the subject of his grievance and that his request for action was denied.
110. After an investigation, the DOC Inspector General's office approved this use of force on March 27, 2001, despite the inspectors' knowledge that the use of force against Plaintiff Massie was in response to past behavior and not in response to ongoing disorderly conduct.
17

Case 3:04-cv-00917-TJC-JRK Document 91-2 Filed 05/11/05 Page 18 of 32 PageID 385
Jeremiah Thomas 111. Plaintiff Jeremiah Thomas is a prisoner in the custody of the Florida Department of Corrections. At all times material to the Complaint he was housed at Florida State Prison. 112. Plaintiff Thomas is a 31-year-old man with an extensive history of psychiatric problems. He suffers from Schizoaffective Disorder, which causes him to experience auditory hallucinations and bouts of mania during which he does not sleep for days and makes rhythmic noises by talking to himself or banging on his cell walls and door. Since his incarceration in 1991, he has been civilly committed to the Correctional Mental Health Institution several times, frequently admitted for in-patient mental health treatment, and is currently housed in the in-patient Transitional Care Unit at Union Correctional Institution. 113. Plaintiff Thomas has been diagnosed with asthma, a medical condition that causes inflammation of the lungs and reduced breathing capacity. 114. On September 20, 2000, at approximately 11:20 a.m., Mr. Thomas cut and mutilated his forearm. He was seen by mental health staff and he asked for help. 115. On September 20, 2000, at approximately 3:00p.m., mental health staff counseled Mr. Thomas regarding his refusal to take his psychotropic medication the previous evening. 116. On September 20, 2000, Defendant Musselman sprayed a large quantity of pepper spray into Plaintiff Thomas's cell without first issuing any orders or warnings. This force was used at the direction of Defendant Anderson and with the authorization of Defendant Clark.
18

Case 3:04-cv-00917-TJC-JRK Document 91-2 Filed 05/11/05 Page 19 of 32 PageID 386
117. In order to cover up the excessive quantity of chemical agents he used, Defendant Musselman wrote a report stating that he used only three 1-second bursts of chemical spray. This statement is false.
118. The next day, September 21, 2000, Mr. Thomas was in his cell when Defendant Wilson sprayed a large amount of pepper spray into Plaintiff Thomas' cell without warning. This was at the direction ofDefendant Muse and with the authorization of Defendant Clark.
119. In his Use of Force report Defendant Wilson falsely stated that he used only three 1-second bursts of spray. This is a false statement designed to cover up the grossly excessive quantities of chemical agents used.
120. Two days later, September 23, 2000, Plaintiff Thomas was in his cell when Defendant Wilson failed to issue any warnings or orders to Plaintiff Thomas before spraying him with both pepper spray and tear gas. This force was used at the direction of Defendant Halle and with the authorization of Defendant Clark.
121. Again, Defendant Wilson wrote a false Use of Force Report stating that he had used only three 1-second bursts ofboth pepper spray and CN tear gas to cover up the fact that he used great quantities of chemical agents that soaked Plaintiff Thomas's entire body.
122. The next day, on September 24, 2000, Defendant Tricocci sprayed Plaintiff Thomas with chemical agents without first issuing any orders or warnings. This force was used at the direction of Defendant Chastain and with the authorization of Defendant Clark. This was the fourth time in five days that Defendant Clark authorized the use of force against Plaintiff Thomas.
19

Case 3:04-cv-00917-TJC-JRK Document 91-2 Filed 05/11/05 Page 20 of 32 PageID 387
123. In his Use of Force Report, Defendant Tricocci falsely stated that he used only three 1-second bursts of spray on Plaintiff Thomas.
124. During this time Plaintiff Thomas was experiencing an acute psychiatric breakdown and was in need of mental health care. During the post-use of force exam conducted by a nurse at approximately 3:00 p.m., Mr. Thomas exhibited disturbing signs of psychosis. The nurse noted that Mr. Thomas told her that he played professional football with the Dolphins in Philadelphia. She also noted that Mr. Thomas smelled like urine.
125. Plaintiff Thomas was severely burned by the excessive amount of chemical agents used on September 20, 21, 23 and 24, 2000. He had painful blisters and open wounds on his ear and neck, abdomen, left arm, upper back and lower right leg.
126. In addition to the intense burning sensation and second-degree bums, each time they sprayed Mr. Thomas he could barely breathe and was left taking little gasps of air for days afterward. He felt like he was going to die and he frequently wept from the pain.
127. On September 25, 2000, Defendant Sapp, at that time the Assistant Warden at FSP, reviewed and approved the uses of force on Plaintiff Thomas from September 20, 21, 23 and 24, 2000. After reviewing these reports, he was aware that Plaintiff Thomas was having symptoms of psychosis and mania and that he had blisters and bums all over his body. Despite this knowledge, he took no action to prevent the further use of force against Plaintiff Thomas or to ensure that he received proper mental health treatment.
128. On September 25, 2000, PlaintiffThomas was in his cell when Defendant Barnett sprayed Plaintiff Thomas with chemical agents three separate times without ever issuing any
20

Case 3:04-cv-00917-TJC-JRK Document 91-2 Filed 05/11/05 Page 21 of 32 PageID 388
orders or warnings. This force was used at the direction of Defendant Chastain and with the authorization of Defendant Whitehurst.
129. Defendant Barnett falsified his Use of Force Report to cover up for the grossly excessive quantities of pepper spray, CN tear gas, and CS tear gas he used on PlaintiffThomas.
130. The following day, September 26, 2000, Defendant Barton sprayed a large amount of pepper spray into Plaintiff Thomas' cell. No orders or warnings were issued beforehand. This force was used at the direction of Defendant Lampp and with the authorization of Defendant Whitehurst.
131. Defendant Barton wrote a Use of Force Report that falsely stated that he used only three 1-second bursts of chemical spray on Plaintiff Thomas.
132. Each of the Defendants on the security staff who were involved in using or authorizing the use of chemical agents against Plaintiff Thomas on September 20, 21, 23, 24, 25 and 26, 2000, including Defendants Musselman, Anderson, Clark, Wilson, Muse, Halle, Tricocci, Chastain, Barnett, Barton, Lampp, and Whitehurst, were aware that Plaintiff Thomas was exhibiting signs of psychosis and was in need of mental health care.
133. On September 27, 2000, Mr. Thomas was evaluated in the medical clinic and admitted to the infirmary for treatment for his chemical burns. He was also placed on psychiatric observation due to his psychotic and manic behavior. Medical notes indicate that he exhibited multiple signs of psychiatric decompensation, including severe psychomotor agitation, loud and pressured speech, extreme and unpredictable mood swings, disorganized thinking and memory impairment.
21

Case 3:04-cv-00917-TJC-JRK Document 91-2 Filed 05/11/05 Page 22 of 32 PageID 389
134. On September 29, 2000, Plaintiff Thomas was transferred to the Crisis Stabilization Unit at Union Correctional Institution for intensive mental health treatment. As a measure of his extreme psychotic breakdown, he told his doctors there that his injuries were from assaults by other inmates.
135. It took over six months for Mr. Thomas' mental condition to stabilize after the repeated and unjustified use of force against him in lieu of proper mental health treatment. Plaintiff Thomas has remained in an in-patient mental health care unit for over two years.
136. Plaintiff Thomas is afraid that he will be sprayed again with chemical agents when he is returned to a Close Management unit.
137. In order to avoid creating a record that would allow meaningful review of the use of chemical agents against Plaintiff Thomas, Defendants repeatedly failed to videotape the use of chemical agents against him, even though these were not spontaneous uses of force and there was ample time to obtain a video camera.
138. Each use of chemical agents against Plaintiff Thomas was approved without a proper investigation.
139. Plaintiff Thomas has exhausted all available administrative remedies regarding the matters described herein.
Eugene Ulrath 140. Plaintiff Eugene Ulrath is a prisoner in the custody of the Florida Department of Corrections. At all times material to the Complaint he was incarcerated at Florida State Prison.
22

Case 3:04-cv-00917-TJC-JRK Document 91-2 Filed 05/11/05 Page 23 of 32 PageID 390
141. Plaintiff Ulrath was transferred to Florida State Prison on October 8, 2002. At that time he was classified as an S-3, the most serious outpatient psychiatric classification, assigned to inmates with very acute mental health needs.
142. The same day he arrived, October 8, 2002, Plaintiff Ulrath sought mental health care by declaring a psychological emergency to several members of the security staff and to two different nurses on the wing. Every single one of his requests was ignored.
143. A few hours after his last attempt to declare a psychological emergency, Plaintiff Ulrath was lying quietly in his cell when Defendant Shipley repeatedly sprayed Plaintiff Ulrath with pepper spray and tear gas under the supervision of Defendant Ellis and with the authorization of Defendant Jarvis.
144. The Defendants gave no warnmgs or orders to Plaintiff Ulrath before using chemical agents against him.
145. Defendant Shipley authored a Use of Force Report alleging that Plaintiff Ulrath was sprayed because he was causing a disturbance on the wing by kicking his cell door and encouraging other inmates to do the same. He further stated that he only used a total of six one-second bursts of pepper spray and three one-second bursts of tear gas.
146. The Use of Force report is a false statement of Plaintiff Ulrath's conduct and of the amount of gas used.
147. The next day, October 9, 2002, Plaintiff Ulrath was again quiet in his cell when Defendant Lindsey, under the supervision of Defendant Lampp and with the authorization of Defendant Jarvis, sprayed him with chemical agents without warning.
23

Case 3:04-cv-00917-TJC-JRK Document 91-2 Filed 05/11/05 Page 24 of 32 PageID 391
148. In an effort to cover up this malicious use of force, Defendant Lindsey wrote a Use of Force Report that stated Plaintiff Ulrath was kicking on his cell door and refusing all orders to stop. He also stated that he only used a total of six one-second bursts of pepper spray and three one-second bursts of tear gas.
149. This Use of Force Report 1s completely false and is designed to conceal Defendants Lindsey, Lampp, and Jarvis' vindictive use of force on Plaintiff Ulrath because they knew he was having psychological problems.
150. On October 10, 2002, Plaintiff Ulrath attempted to commit suicide by hanging himself with his bed sheet. He was placed in a special suicide observation cell and then transferred to inpatient mental health unit at Union Correctional Institution. Plaintiff Ulrath continues to require inpatient psychiatric treatment.
151. As a result of being exposed to an excessive quantity of chemical agents, Plaintiff Ulrath suffered chemical bums and developed large blisters on his back, buttock and leg.
152. Plaintiff Ulrath has exhausted his administrative remedies. He filed a formal grievance on December 5, 2002, explaining that he was sprayed without warning while lying quietly in his cell. The response stated that his allegations had been referred to the Inspector General's office for review and to that extent he could consider his grievance approved. His appeal to Defendant Crosby's office was denied. Plaintiff Ulrath was never informed of the outcome of the Inspector General's review.
24

Case 3:04-cv-00917-TJC-JRK Document 91-2 Filed 05/11/05 Page 25 of 32 PageID 392
Reginald Williams 153. Reginald Williams is a prisoner in the custody of the Florida Department of Corrections. At all times material to the Complaint he was incarcerated at Florida State Prison. 154. On October 24, 2001, Defendants Rizer, Reynolds and Riggs sprayed Plaintiff Williams with chemical agents while he was quiet in his cell solely in retaliation for litigation he had filed against prison officials. 155. Defendant Lazenby authorized the use of chemical agents against Plaintiff Williams without properly determining if the use of force was necessary. 156. Defendant Rizer sprayed the chemical agents directly into Plaintiff Williams' face, immediately blinding him and causing intense pain and burning. He could not rinse his eyes because Defendants continued to spray more chemical agents into the cell. 157. When Plaintiff Williams was finally allowed to shower, the Defendants intentionally turned on very hot water, intensifying the burning and pain on his skin and in his eyes. 158. Defendant Rizer wrote a Use of Force Report alleging that chemical agents were used because Plaintiff Williams was being disorderly and causing a disturbance on the wing. He also stated that he only used a total of six one-second bursts of pepper spray. 159. This report is pretextual, false, and written to cover up Defendant Rizer's unjustified and excessive use of chemical agents on Plaintiff Williams.
25

Case 3:04-cv-00917-TJC-JRK Document 91-2 Filed 05/11/05 Page 26 of 32 PageID 393
160. As a result of having chemical agents sprayed directly into his eyes, the vision in Plaintiff Williams' right eye has been permanently damaged and he now must wear glasses to see clearly.
161. Plaintiff Williams has exhausted all available administrative remedies regarding the use of chemical agents against him on October 24, 2001.
CAUSE OF ACTION: EIGHTH AMENDMENT VIOLATIONS 162. Plaintiffs repeat and reallege paragraphs 1 through 161 as if fully set forth herein. 163. Plaintiff Butler's right to be free from cruel and unusual punishment, which is guaranteed by the Eighth Amendment, was violated by Defendants Reeder, Chastain and Clark when they knowingly and willfully used, directed or authorized the use of chemical agents against Plaintiff Butler maliciously and sadistically for the very purpose of causing harm and not in a good faith effort to maintain or restore discipline. 164. As a result of Defendants Reeder, Chastain, Clark, Crosby, Redd, and Sapp's unconstitutional actions, Plaintiff Butler suffered second-degree chemical bums, pain and suffering, respiratory distress, mental and emotional distress, humiliation and degradation. 165. Plaintiff Frazier's right to be free from cruel and unusual punishment, which is guaranteed by the Eighth Amendment, was violated by Defendants Reynolds, Reeder, Riggs, and Lampp when they knowingly and willfully used, directed or authorized the use of chemical agents against Plaintiff Frazier maliciously and sadistically for the very purpose of causing harm and not in a good faith effort to maintain or restore discipline.
26

Case 3:04-cv-00917-TJC-JRK Document 91-2 Filed 05/11/05 Page 27 of 32 PageID 394
166. As a result of Defendants Reynolds, Rizer, Riggs, Crosby, Redd, and Sapp's unconstitutional actions, Plaintiff Frazier suffered second-degree chemical bums, inflammation of the skin on his arms, pain and suffering, mental and emotional distress, humiliation and degradation.
167. Plaintiff Massie's right to be free from cruel and unusual punishment, which is guaranteed by the Eighth Amendment, was violated by Defendants Green, Halle and Clark when they knowingly and willfully used, directed or authorized the use of chemical agents against Plaintiff Massie maliciously and sadistically for the very purpose of causing harm and not in a good faith effort to maintain or restore discipline.
168. As a result of Defendants Green, Clark, Crosby, Redd, and Sapp's unconstitutional actions, Plaintiff Massie suffered second-degree chemical bums over a large portion of his body, increased anxiety related to his mental illness, pain and suffering, mental and emotional distress, humiliation and degradation.
169. Plaintiff Thomas's right to be free from cruel and unusual punishment, which is guaranteed by the Eighth Amendment, was violated by Defendants Musselman, Wilson, Tricocci, Barnett, Barton, Anderson, Muse, Chastain, Lampp, and Clark when they knowingly and willfully used, directed or authorized the use of chemical agents against Plaintiff Thomas maliciously and sadistically for the very purpose of causing harm and not in a good faith effort to maintain or restore discipline.
170. Plaintiff Thomas's right to be free from cruel and unusual punishment, which is guaranteed by the Eighth Amendment, was violated by Defendant Sapp when, with knowledge
27

Case 3:04-cv-00917-TJC-JRK Document 91-2 Filed 05/11/05 Page 28 of 32 PageID 395
of Plaintiff Thomas's injuries and psychotic state, he acted with deliberate indifference to the substantial risk that Plaintiff Thomas would continue to be abused with chemical agents.
171. As a result of Defendants Musselman, Anderson, Clark, Wilson, Muse, Halle, Tricocci, Chastain, Barnett, Barton, Lampp, Whitehurst, Crosby, Redd, and Sapp's unconstitutional actions, Plaintiff Thomas suffered second-degree chemical bums over a large portion of his body, respiratory distress, increased anxiety related to his mental illness, pain and suffering, mental and emotional distress, humiliation and degradation.
172. Plaintiff Ulrath's right to be free from cruel and unusual punishment, which is guaranteed by the Eighth Amendment, was violated by Defendants Shipley, Ellis, Lindsey, Lampp and Jarvis when they knowingly and willfully used, directed or authorized the use of chemical agents against Plaintiff Ulrath maliciously and sadistically for the very purpose of causing harm and not in a good faith effort to maintain or restore discipline.
173. As a result of Defendants Lindsey, Shipley, Ellis, Jarvis, Crosby, Carter, Sapp, Sirmones, Lampp, and Lazenby unconstitutional actions, Plaintiff Ulrath suffered chemical bums over a large portion of his body, increased anxiety related to his mental illness, pain and suffering, mental and emotional distress, humiliation and degradation.
174. Plaintiff Williams' right to be free from cruel and unusual punishment, which is guaranteed by the Eighth Amendment, was violated by Defendants Rizer, Reynolds, Riggs and Lazenby when they knowingly and willfully used, directed or authorized the use of chemical agents against Plaintiff Williams maliciously and sadistically for the very purpose of causing harm and not in a good faith effort to maintain or restore discipline.
28

Case 3:04-cv-00917-TJC-JRK Document 91-2 Filed 05/11/05 Page 29 of 32 PageID 396
175. As a result of Defendants Reynolds, Crosby, Carter, Sapp, Sirmones, and Lazenby unconstitutional actions, Plaintiff Williams suffered permanent damage to his right eye, pain and suffering, mental and emotional distress, humiliation and degradation.
176. The excessive and unjustified use of chemical agents against Plaintiffs Butler, Frazier, Massie, Thomas, Williams and Ulrath is part of a pattern of hundreds of improper uses of force against Florida State Prison inmates.
177. The pattern and practice of using chemical agents solely to inflict physical pain and injury on Florida State Prison inmates began in 1999 under the supervision of Defendant Crosby and continued under his successor, Defendant Carter.
178. On information and belief, Defendants Crosby, Carter, Sapp, Sirmones and Lazenby, Redd, Clark and Jarvis failed to take any corrective action to halt the widespread and obvious abuse with full knowledge that their subordinates were repeatedly using chemical agents maliciously and sadistically for the very purpose of causing harm and not in a good-faith effort to maintain or restore discipline. Their failure to act resulted in the use of unjustified and excessive force against Plaintiffs Butler, Frazier, Massie, Thomas, Williams and Ulrath.
179. On information and belief, Defendants Crosby, Carter, Sapp, Sirmones, Lazenby, Redd, Clark and Jarvis, by implementing the policies and customs discussed in paragraphs 47 to 66, facilitated and encouraged their subordinates to use chemical agents maliciously and sadistically for the very purpose of causing harm and not in a good-faith effort to restore order or maintain discipline or for any other legitimate penological reason.
29

Case 3:04-cv-00917-TJC-JRK Document 91-2 Filed 05/11/05 Page 30 of 32 PageID 397
180. On information and belief, Defendants Crosby, Carter, Sapp, Sirmones, Lazenby, Redd, Clark and Jarvis acted with deliberate indifference to the substantial and obvious risk that their subordinates would use chemical agents maliciously or sadistically for the very purpose of causing harm and not in a good-faith effort to restore order or maintain discipline or for any other legitimate penological reason.
181. By their knowing failure to stop the widespread abuse, and by implementing policies and customs that encouraged and facilitated the use of chemical agents maliciously or sadistically for the very purpose of causing harm and not in a good-faith effort to restore order or maintain discipline or for any other legitimate penological reason, Defendants Crosby, Carter, Sapp, Sirmones, Lazenby, Redd, Clark, and Jarvis violated the rights of Plaintiffs to be free from cruel and unusual punishment as guaranteed by the Eighth Amendment, made applicable to the States by the Fourteenth Amendment, of the Constitution of the United States.
182. WHEREFORE, on this count Plaintiffs request this Court grant the following relief:
A. Plaintiff Butler seeks compensatory and punitive damages from Defendants Reeder, Chastain, Clark, Crosby, Redd, and Sapp.
B. Plaintiff Frazier seeks compensatory and punitive damages from Defendants Reynolds, Reeder, Lampp, Riggs, Crosby, Redd, and Sapp.
C. Plaintiff Massie seeks compensatory and punitive damages from Defendants Green, Clark, Crosby, Redd, Halle, and Sapp.
30

Case 3:04-cv-00917-TJC-JRK Document 91-2 Filed 05/11/05 Page 31 of 32 PageID 398
D. Plaintiff Thomas seeks compensatory and punitive damages from Musselman, Anderson, Clark, Wilson, Muse, Halle, Tricocci, Chastain, Barnett, Barton, Lampp, Whitehurst, Crosby, Redd, and Sapp.
E. Plaintiff Ulrath seeks compensatory and punitive damages from Defendants Lindsey, Shipley, Ellis, Jarvis, Crosby, Carter, Sapp, Sirmones, Lampp, and Lazenby.
F. Plaintiff Williams seeks compensatory and punitive damages from Defendants Reynolds, Crosby, Carter, Sapp, Sirmones, Rizer, Riggs, and Lazenby.
G. All Plaintiffs seek attorneys' fees and costs, pursuant to 42 U.S.C. § 1988. H. All Plaintiffs seek any other relief as the Court may deem proper. Dated this 11th day of May, 2005.
Respectfully submitted, Holland & Knight LLP s/ George E. Schulz, Jr. George E. Schulz, Jr.; Florida Bar #169507 Michael Agliata; Florida Bar #167665 50 North Laura Street, Suite 3900 Jacksonville, Florida 32202 (904) 353-2000; (904) 358-1872 (Fax) Lisa White Shirley; Florida Bar No. 478725 Cassandra J. Capobianco; Florida Bar No. 614734 Kristen Cooley Lentz; Florida Bar No. 649635 Christopher M. Jones; Florida Bar No. 994642 Florida Institutional Legal Services 1010-B NW 8th Avenue
31

Case 3:04-cv-00917-TJC-JRK Document 91-2 Filed 05/11/05 Page 32 of 32 PageID 399
Gainesville, FL 32601 (352) 375-2494; (352) 271-4366 (Fax) Peter M. Siegel; Florida Bar No. 227862 Randall C. Berg; Florida Bar No. 318371 Cullen O'Brien; Florida Bar No. 597341 Florida Justice Institute, Inc. 2870 First Union Financial Center 200 South Biscayne Boulevard Miami, FL 33131-2310 (305) 358-2081; (305) 358-0910 (Fax) Attorneys for Plaintiffs CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 11th day of May, 2005, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system, which will send a notice of electronic filing to all counsel of record.
s/ George E. Schulz, Jr. Fla. BarNo. 169507 Attorney for Plaintiffs
32

 
 Case 3:04-cv-00917-TJC-JRK Document 109 Filed 06/21/05 Page 1 of 1 PageID 643

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA JACKSONVILLE DIVISION

SYLVESTER BUTLER, et al.,

Plaintiffs, vs.

Case No. 3:04-cv-917-J-32MMH

JAMES V. CROSBY, JR., et al.,,

Defendants.

ORDER Upon consideration, it is hereby ORDERED: Defendant James Wilson’s Motion to Stay Discovery (Doc. 103) is DENIED. DONE AND ORDERED at Jacksonville, Florida this 21st day of June, 2005.

s. Copies:
counsel of record

 
 Case 3:04-cv-00917-TJC-JRK Document 115 Filed 08/11/05 Page 1 of 3 PageID 680

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA JACKSONVILLE DIVISION

SYLVESTER BUTLER, et al.,
Plaintiffs, vs.
JAMES V. CROSBY, JR., et al.,
Defendants.

Case No. 3:04-cv-917-J-32MMH

AMENDED ORDER REFERRING CASE TO MEDIATION AND APPOINTING MEDIATOR
The parties are hereby referred to mediation in accordance with the rules governing mediation set forth in Chapter Nine of the Rule s of the United States District Court for the Middle District of Florida. It is hereby
ORDERED: 1. Referral to Mediation : This case is hereby referred to mediation i n an attempt to achieve an equitable settlement of the issues. The Court hereby appoints Terrance E. Schmidt, Esquire as Mediator in this action. By agreement of the parties, the mediation conference will occur no later than December 31, 2005. Plaintiff’s counsel shall file a notice advising the Court of the date selected by the parties and the Mediator for the mediation conference. 2. General Rules Governing t he Mediation Conference: Although the mediation process is defined in greater detail in Chapter Nine of the Local Rules of t his Court, the following additional guidelines are hereby imposed:

Case 3:04-cv-00917-TJC-JRK Document 115 Filed 08/11/05 Page 2 of 3 PageID 681
(a) Case Summaries: Not later than five (5) working days prior to the scheduled mediation conference, eac h party shall m ail (or transmit by facsimile) directly to the Mediator, with copy to opposing counsel, a brief written summary of the facts and issues of the case. Such summaries shall be treated as confidentialcommunications and shall notbe incorporated into the public records of the case.
(b) Identification of Corporate and/or Claims Representatives: As part of the written case summaries, counsel for corporate parties and claims professionals shall statethe name and general job descirption of the employee or agent of the corporation who will attend and participate on behalf of the corporate party. Such representative must have full authorityto settle the case.
(c) Authority of the Mediator: The Mediator shall have authority to consult and conductconferences and private conversations and caucuses with counsel, individual parties, corporate representatives and claims professionals so as to suggest alternatives, analyze issues, question perceptions, use logic, stimulate negotiations and keep order.
(d) Authority to Declare Impasse : While an average mediation conference takes between three to five hours, participants shall be prepared to spend as much time as necessary ina good faith effort to settle the case or until an impasse is declared by the Mediator.
(e) Mediator's Report: Within five (5) days following the mediation conference, the Mediator shall file with the Clerk ofCourt a “Mediation Report.”
3. Compensation of the Mediator: The Mediator sha ll be compensated at a
reasonable hourly rate agreed t o by the parti es and the Mediator, which shall be borne
equally by all parties unless otherwise agr eed to by counsel, and shall be payable
immediately upon the conclusion of mediation.
4. Parties' Obligations: The parties are urged t o take full advantage of this
opportunity to amicably resolve the issuesherein. However, the mediation processshall not
serve as a basis for any motion to continue the trial of the case. Should mediation pr ove
2

Case 3:04-cv-00917-TJC-JRK Document 115 Filed 08/11/05 Page 3 of 3 PageID 682
unsuccessful, the case shall remain on its present course for pretrial conference and trial. Plaintiff's counsel has an ongoi ng obligation to keep the mediator informed as to the appearance of any new parties.
DONE AND ORDERED at Jacksonville, Florida, this 11th day of August, 2005.
Copies to: Counsel of Record Terrance E. Schmidt, Esquire (mediator) 1301 Riverplace Boulevard - Suite 1818 Jacksonville, FL 32207 attachments: (mediation report form, docket sheet)
3

 
 Case 3:04-cv-00917-TJC-JRK Document 103 Filed 06/01/05 Page 1 of 6 PageID 590

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA JACKSONVILLE DIVISION

SYLVESTER BUTLER, KELVIN FRAZIER, CURT MASSIE, JEREMIAH THOMAS, EUGENE ULRATH, REGINALD WILLIAMS,
Plaintiffs,
v.
JAMES V. CROSBY, JR., BRADLEY CARTER, GEORGE SAPP, STEPHEN SIRMONES, JOE LAZENBY, JR., ALLEN CLARK, MARK REDD, KEITH MUSSELMAN, TONY ANDERSON, JAMES WILSON, WILLIAM MUSE, COLIN HALLE, STEVEN TRICOCCI, TIM CHASTAIN, RODNEY BARNETT, RONNIE BARTON, KENNETH LAMPP, WENDELL WHITEHURST, STACEY GREEN, DAVID REYNOLDS, JOHN RIGGS, GLYNN REEDER, JOHN RIZER, OSCAR SHIPLEY, DEAN ELLIS, JEFFREY LINDSEY, BILLY JARVIS, each in his individual capacity,
Defendants.

Case No.: 3:04-cv-917-J-32MMH

DEFENDANT JAMES WILSON’S MOTION TO STAY DISCOVERY AND SUPPORTING MEMORANDUM OF LAW
COMES NOW Defendant, Jam es Wilson (hereinafter “Wilson”), by and through his undersigned attorneys, pursuant to Rule 26(c) ofthe Federal Rules ofCivil Procedure and Rule 3.01 of the Local Rules of the Middle District of Florida, and files his Motion to Stay Discovery and Supporting Memorandum of Law in the above-styled action as follows:

Case 3:04-cv-00917-TJC-JRK Document 103 Filed 06/01/05 Page 2 of 6 PageID 591
I. Motion. A. Nature of Plaintiffs’ Claims.
1. Although there are six (6) Plaintiffs in thisaction, only Plaintiff Thomas has attempted to assert a claim against Wilson. See Amended Complaint and Jury Demand, Paragraphs 111 – 139, 182 (Dkt. 96).
2. Plaintiff Thomas brings this action pur suant to 42 U.S.C. Section 1983 (hereinafter “Section 1983”) and in support thereof attem pts to allege that he was subjected to excessive uses of force in violation of the Eighth Am endment. In particular, Plaintiff Thom as alleges that five (5) different correctional officers named as Defendants herein sprayed him with chemical agents on eight (8) occasions between September 20 and 26, 2000. See Id. at Paragraphs 116 – 130. Plaintiff Thomas further alleges that the uses of chemical agents were either directed by or approved by ten (10) other individuals named as Defendants herein. Id. In total, Plaintiff Thomasseeks compensatory and punitive damages from a total of fifteen (15) Defendants. Id. at Paragraph 182.D.
3. Plaintiff Thomas attempts to allege that Wilson used excessive force against him on September 20 and 23, 2000, in violation of the Eight h Amendment, by spraying him with chemical agents. Plaintiff Thomas brings this action against Wilson pursuant to Section 1983. See Amended Complaint and Jury Demand, Paragraphs 111 – 139, 182 (Dkt. 96). B. Wilson’s Motion to Dismiss.
4. On May 25, 2005, Wilson filed a Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(5) and (6). In support of his Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), Wilson raised the defense ofqualified immunity from Plaintiff Thomas’ Section 1983 claim. Wilson’s Motion to Dismiss remains pending before this Court.
2

Case 3:04-cv-00917-TJC-JRK Document 103 Filed 06/01/05 Page 3 of 6 PageID 592

5. For the foregoing reasons and as set forth in the Mem orandum of Law that follows, discovery in this matter should be stayed pending resolution of the qualified immunity defense raised by Wilson. Given that discovery is not scheduled to close until April 28, 2006, no prejudice will inure to Plaintiffs if discovery is stayed pending resolu tion of the qualified im munity issue. Conversely, however, Wilson will be prejudiced if he isneedlessly forced to endure the rigors, inconvenience, and expense of discovery only to have the Section 1983 claim against him dismissed on the basis of qualified immunity.

6. Counsel for Wilson, in accordance with Local Rule 3.01(g), certify that they have conferred with opposing counsel regarding this issu e. Plaintiffs oppose the relief sought in this Motion.

II. Memorandum of Law.

A. The Standard for Obtaining a Stay of Discovery. "[T]he power to stay proceedings is

incidental to the power inherent in every court to control the disposition of the causes on its docket

with economy of time and effort for itself, for counsel, and for litigants."Landis v. North American

Co., 299 U.S. 248, 254, 57 S.Ct. 163, 166 (1936). Accordi ng to Federal Rule of Civil Procedure

26(c), the court may, "for good cause shown . . . make any order which justice requires to protect a

party or person from annoyance, em barrassment, oppression, or undue burden or expense.”

According to Federal Rule of Civil Procedure 26(c)(2), such orders may include "that the disclosure

or discovery may be had only on specified term s and conditions, including a designation of the

time.”

B. Discovery Should be Stayed Pending Resolution of Qualified Immunity. The

defense of qualified immunity affords public officials broad protections from the rigors, intrusion,

and expense associated with defending against unw arranted civil rights actions. For exam ple,

3

Case 3:04-cv-00917-TJC-JRK Document 103 Filed 06/01/05 Page 4 of 6 PageID 593
qualified immunity shields government officials from liability for damages arising from conduct that does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Harlow v. Fitzgerald , 457 U.S. 800, 818, 102 S.Ct. 2727, 2738 (1982). However, qualified immunity not only provides a defense to liability, but it also gives a public official immunity from suit itself. Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 2815 (1985).
The defense of qualified immunity also extends to insulate public oficials from the burdens associated with engaging in discovery. Behrens v. Pelletier, 516 U.S. 299, 308, 116 S.Ct. 834, 839 (1996); see also Anderson v. Crieghton, 483 U.S. 635, 646 n. 6, 107 S.Ct. 3034, 3042 (1987) ("One of the purposes of the Harlow qualified immunity standard is to protect public officials from . . . discovery . . . ."). Until the threshold issue of qualified immunity has been resolved, discovery should not be allowed. See Harlow, 457 U.S. at 818, 102 S.Ct. at 2738;Siegert v. Gilley, 500 U.S. 226, 231, 111 S.Ct. 1789, 1793 (1991). Consequently, a court should stay discovery pending resolution of a public officials' qualified immunity defense. See Caraballo-Sandoval v. Honsted, 35 F.3d 521, 524 (11th Cir. 1994);Hargrove v. Henderson, 1996 WL 467516, *2 (M.D. Fla. 1996);see also, Klein v. Courtwright, No. 96-850-cv-20B (M.D. Fla. Apr il 3, 1997) (order granting stay of discovery pending resolution of qualified immunity defense raised in motion to dismiss).
Wilson will be prejudiced ifdiscovery is not stayed pending appeal of the qualified immunity issue. A fundamental protection afforded by qua lified immunity is freedom from the rigors, inconvenience, and expense of discovery and other pretrial proceedings. See Behrens, 516 U.S. at 308, 116 S.Ct. at 839. Absent a stay of discovery, Wilson will lose that protection. Because only Plaintiff Thomas has brought a claim against Wilson in this case, and that claimarises under Section
4

Case 3:04-cv-00917-TJC-JRK Document 103 Filed 06/01/05 Page 5 of 6 PageID 594
1983, Wilson's assertion of a qualifiedimmunity defense could bring an end to this litigation against him. Thus, Wilson should not be forced to undergo the rigors and inconvenience of a deposition, or for that matter the expense associated with othe r forms of discovery, until the threshold issue of qualified immunity has been resolved.
III. Conclusion. WHEREFORE, for the foregoing reasons, Wilson respectfully requests that this Court grant his Motion to Stay Discovery. DATED this 1st day of June, 2005.
Respectfully submitted, CONSTANGY, BROOKS & SMITH, LLC Post Office Box 41099 Jacksonville, Florida 32203 Telephone: (904) 356-8900 Facsimile: (904) 356-8200
By: _/s/ J. Ray Poole_________________ J. Ray Poole Florida Bar No. 0983470 rpoole@constangy.com Attorneys for Defendant Wilson
5

Case 3:04-cv-00917-TJC-JRK Document 103 Filed 06/01/05 Page 6 of 6 PageID 595

CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on the 1st day of June, 2005, I electronically filed the foregoing Defendant James Wilson's Motion to Stay Discovery and Supporting Memorandum of Law with the Clerk of the Court by using the CM/ECF system, which will send a Notice ofElectronic Filing to all counsel of record herein.

Florida Attorneys Constangy, P.O. Jacksonville, Telephone: Facsim

/s/ J. Ray Poole_________________ J. Ray Poole
Bar No. 0983470 for Defendant Wilson Brooks & Smith, LLC
Box 41099 FL 32203 (904) 356-8900
ile: (904) 356-8200 rpoole@constangy.com

6

 
 Case 3:04-cv-00917-TJC-JRK Document 154 Filed 03/03/06 Page 1 of 2 PageID 1225

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA JACKSONVILLE DIVISION

SYLVESTER BUTLER, et al.,
Plaintiffs, vs.
JAMES V. CROSBY, etc., et al.,
Defendants.

Case No. 3:04-cv-917-J-32MMH

ORDER This case is before the Court on plaintiff Kelvin Frazier’spro se Motion for Preliminary Injunction (Doc. 150) and accompanying dec laration (Doc. 151). Pursuant to Local Rule 2.03(d), a party represented by counsel is not permitted to submit pleadings pro se. Here, Mr. Frazier is represented by multiple lawyers who, according to Mr. Frazier, are aware of the allegations contained in his motionand declaration, and theCourt will therefore deny the motion without prejudice to refiling by counsel if deemed appropriate. However, given the serious nature of the allegations contained inthe motion and accompanying declaration, the Court directs counsel for defendants to forth with deliver a copy of this Order and Mr. Frazier’s motion and accompanying declaration to the warden of Santa Rosa Correctional Institute to ensure that he is aware of the allegations and conducts any appropriate investigation. The Clerk is also instructed to send a copy of this Order directly to plaintiff Kelvin Frazier.

Case 3:04-cv-00917-TJC-JRK Document 154 Filed 03/03/06 Page 2 of 2 PageID 1226 DONE AND ORDERED at Jacksonville, Florida this 3rd day of March, 2006.
s. Copies: counsel of record Kelvin Frazier
2

 
 Case 3:04-cv-00917-TJC-JRK Document 197 Filed 06/20/06 Page 1 of 1 PageID 1436

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA JACKSONVILLE DIVISION

SYLVESTER BUTLER, et al.,

Plaintiffs, vs.

Case No. 3:04-cv-917-J-32MMH

JAMES MCDONOUGH, et al.,

Defendants.

ORDER Upon consideration, it is hereby ORDERED: The parties’ Stipulated Motion for Voluntary Dismissal of Plaintiff Massie’s Claims for Injunctive and Declaratory Relief, But Not His Claims for Damages (Doc. 196) is GRANTED; plaintiff Curt Massie’s Count XI claims for injunctive and declaratory relief are dismissed without prejudice; his Count IV claim for damages will be tried with the remainder of the case. (Counts I-III and V-X (which do not involve plaintiff Massie) and the other plaintiffs’ Count XI claims remain unaffected by this Order). DONE AND ORDERED at Jacksonville, Florida this 20th day of June, 2006.

s. Copies:
counsel of record

 
 Case 3:04-cv-00917-TJC-JRK Document 291 Filed 08/30/07 Page 1 of 1 PageID 2479

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA JACKSONVILLE DIVISION

SYLVESTER BUTLER, et al.,

Plaintiffs,

vs.

Case No. 3:04-cv-917-J-32HTS

JAMES MCDONOUGH, et al.,

Defendants.

ORDER This matter having come before the Court on the parties’ Joint Motion for Voluntary Dismissal with Prejudice as to Defendants Set phen Sirmones, Joe Lazenby Jr., Mark Redd, Keith Musselman, Tony Anderson, William MuseC, olin Halle, Steven Tricocci, Tim Chastain, Rodney Barnett, Ronnie Barton, Kenneth Lam pp, Wendell Whitehurst, Dean Ellis, Jeffrey Lindsey and Billy Jarvis (Doc. 271), it is hereby ORDERED: The Motion (Doc. 271) i s GRANTED and this action is hereby DISMISSED with prejudice as to defendants Stephen Sirmones , Joe Lazenby Jr., Mark Redd, Keith Musselman, Tony Anderson, William Muse, Colin Halle, Steve n Tricocci, Tim Chastain, Rodney Barnett, Ronnie Barton, Kenneth Lam pp, Wendell Whitehurst, Dean Ellis, Jeffrey Lindsey and Billy Jarvis. DONE AND ORDERED in Jacksonville, Florida, this 30th day of August, 2007.

md. Copies to: Counsel of Record

 
 Case 3:04-cv-00917-TJC-JRK Document 374 Filed 05/19/08 Page 1 of 3 PageID 7001

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA JACKSONVILLE DIVISION

JEREMIAH THOMAS, EUGENE ULRATH,

)

SYLVESTER BUTLER, CURT MASSIE,

)

KELVIN FRAZIER, REGINALD WILLIAMS, )

PAUL ECHOLS, MICHAEL MCKINNEY,

)

CHARLES MORGAN, and ANTONIO WARD, )

)

Plaintiffs,

)

)

VS.

)

)

JAMES MCDONOUGH, in his official capacity, )

RANDALL BRYANT, in his official capacity, )

MICHAEL RATHMANN, JAMES V.

)

CROSBY, JR., BRADLEY CARTER, GEORGE )

SAPP, ALLEN CLARK, STACEY GREEN,

)

OSCAR SHIPLEY,

)

each in his individual capacity,

)

)

Defendants.

)

)

CASE NO: 3:04-CV-917-J-32-TJC

STIPULATION FOR ENTRY OF A FINAL ORDER OF DISMISSAL WITH PREJUDICE
Plaintiff Curt Massie and all Defendants and their successors in their official capacities, by and through their undersigned counsel, hereby stipulate to entry of a Final Order of Dismissal with Prejudice, with each party to bear his own costs and expenses, including attorneys' fees.
The parties expressly stipulate that this Final Order of Dismissal applies to all claims by Plaintiff Curt Massie against Defendants James McDonough, in his official capacity, Randall Bryant, in his official capacity, Michael Rathmann, James V. Crosby, Jr., Bradley Carter, George Sapp, Allen Clark, Stacey Green, and Oscar Shipley. The parties further expressly stipulate that this Order of Dismissal applies to the claims of Plaintiff Curt Massie for declaratory and

Case 3:04-cv-00917-TJC-JRK Document 374 Filed 05/19/08 Page 2 of 3 PageID 7002

injunctive relief, including costs, expenses and attorneys fees, against Defendants James McDonough and Randall Bryant and their successors in their official capacities. No claims raised in this action remain by way of Plaintiff against any of the Defendants.

READ AND APPROVED BY:

CAUTION: READ BEFORE SIGNING
~.
Curt Massie

Date:----=S''---_1_-_0_8_ __

2

Case 3:04-cv-00917-TJC-JRK Document 374 Filed 05/19/08 Page 3 of 3 PageID 7003

Respectfully submitted,
sf George E Schulz. Jr. George E. Schulz, Jr., Esq. Fla. Bar No. 169507 Leon Fresco, Esq. Holland & Knight LLP 50 North Laura Slreet, Suite 3900 Jacksonville, Florida 32202 (904) 353-2000 (904) 358-1872 (facsimile)
Cassandra Capobianco, Esq. Christopher M. Jones, Esq. Kristen Cooley Lentz, Esq. Florida Institutional Legal Services 101O-B NW 8th Avenue Gainesville, Florida 32601 352-375-2494 352-271-4366 (Fax)
Randall C. Berg, Esq. Joshua Glickman, Esq. Florida Justice Institute, Inc. 100 S.E. Second Slreet 4320 Bank of America Tower Miami, Florida 33131-2309 (305) 358-2081 (305) 358-0910 fax
Attorneys for Plaintiffs

Respectfully submitted,
Is Michael L. Glass MICHAEL L. GLASS, ESQ. (Shipley) George, Hartz, Lundeen, Fulmer & Stevens 4720 Salisbury Road Jacksonville, Florida 32256
lsi Ronald S. Wasileuko RONALD S. WASILENKO, ESQ. (Crosby) Gobelman, Love, Gavin, Wasilenko & Broughan, LLC 815 South Main Street Suite 300 Jacksonville, Florida 32207
/s/ Nicholas 1. Christopolis NICHOLAS J. CHRJSTOPOLIS (Clark) Luks, Santaniello, Perez, Petrillo & Gold One Independent Drive, Suite 3300 Jacksonville, Florida 32202
lsi J. Dixon Bridgers J. DIXON BRIDGERS, III, ESQ. (All other defendants) Vernis & Bowling 4309 Salisbury Road Jacksonville, Florida 32216
Attorneys for Defendants

3

 
 Case 3:04-cv-00917-TJC-JRK Document 475 Filed 02/02/11 Page 1 of 80 PageID 9123

United States Court of Appeals
For the Eleventh Circuit

SYLVESTER BUTLER, et aI.,

No. 09-11658
District Court Docket No. 04-00917-CV-J-32JRK

FILED U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
Aug 20,2010
JOHN LEY CLERK.

Plaintiffs,

JEREMIAH THOMAS, MICHAEL MCKINNEY,

Plaintiffs-Appellees,

versus

RANDALL BRYANT, in his oficial capacity, WALTER A. MCNEIL, Secretary, Department of Corrections,
Defendants-Appellants,
BRADLEY CARTER, in his individual capacity, et aI_.
Defendants.
Appeal from the United States District Court for the Middle District of Florida

c; !'_--.t--
:;>~rr;

=r..>

~-'o;O

.·t'o-;'; ""Tl

..'J".tr-_
'"-::' r-(n.I-~
'--<' -,- ;')'--~-....
;-:-l~

rr1 0:'
I N

~~n;--c- -0

~--; :-~

.,
-r
[Ii
0

0 0 -'
;-;...J,,,."'2n

W

':?r;3 L~ j~ ~-' <-:'

JUDGMENT

FEB 01 2011

Entered: August 20, 20 I 0 For the Court: John Ley, Clerk
By: Gilman, Nancy

Case 3:04-cv-00917-TJC-JRK Document 475 Filed 02/02/11 Page 2 of 80 PageID 9124

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

No. 09-11658

FILED U.S. COURT OF APPEALS
ELEVENTH CIRCUIT AUGUST 20t 201 0

D. C. Docket No. 04-00917 CV-J.132JRK. JOHN LEY
CLERK

JEREMIAH THOMAS, MICHAEL MCKINNEY,

Plaintiffs-Appellees,

versus

RANDALL BRYANT, in his official capacity, WALTER A. MCNEIL, Secretary, Department of Corrections,

Defendants-Appellants.

Appeal from the United States District Court

= :_."n., ,....,
.n~>o=;=;ron

:;;;c:,.::.~

.on

for the Middle District of Florida

8.z;~=V> cf"Mo

"'TJ

<r=V9l<0n

I N

r

1-;:;-1

rr1n -::O-
""'-t(j

-0 ~

£T1 O

(August 20, 2010)

'§_03..-.-..,,10" W,.

-.. o_c
:>' :l:l

W W

Before BLACK, HULL and ANDERSON, Circuit Judges.

ANDERSON, Circuit Judge:

This appeal presents important questions concerning the intersectjon of the

Case 3:04-cv-00917-TJC-JRK Document 475 Filed 02/02/11 Page 3 of 80 PageID 9125
Eighth Amendment and the incarceration of inmates with serious mental illness. Ten inmates incarcerated at Florida State Prison ("FSP") brought this § 1983 action against various officers and employees of the Florida Department of Corrections ("DOC"), alleging that the use of chemical agents on inmates with mental illness and other vulnerabilities violates the Eighth Amendment's prohibition on cruel and unusual punishment. After the plaintiffs settled their damages claims against the individual correctional officers responsible for administering the chemical agents, the district court held a five-day bench trial on their remaining claims for declaratory judgment and injunctive relief against the two defendants allegedly responsible for the policy which authorized the use of chemical agents on inmates at FSP: Walter McNeil, Secretary of the DOC, and Randall Bryant, Warden ofFSP. The district court entered judgment in favor of two of the remaining six plaintiffs,1 concluding that the repeated sprayings inmates Jeremiah Thomas and Michael McKinney received pursuant to the DOC's non-spontaneous use-of-force policy violated the Eighth Amendment. Specifically, the district court concluded that Thomas and McKinney demonstrated that at times in which they were sprayed with chemical agents they were unable to conform their behavior to prison standards due
By the time of trial, four of the original ten plaintiffs had been dismissed from the suit.
2

Case 3:04-cv-00917-TJC-JRK Document 475 Filed 02/02/11 Page 4 of 80 PageID 9126
to their mental illnesses such that the DOC's use of force for purposes of prison discipline amounted to cruel and unusual punishment. To remedy the violation, the district court permanently enjoined the defendants, in their official capacities, from allowing the non-spontaneous use of chemical agents on Thomas or McKinney without first consulting with the DOC's trained mental health staff to evaluate their mental health status. Defendants McNeil and Bryant now appeal, challenging both the district court's finding of an Eighth Amendment violation and the propriety of its pennanent injunction.
Four days before oral argument, in an unfortunate twist of events, plaintiff Thomas died in DOC custody. Pending before our court is a timely motion for substitution filed by Thomas's father, Maxime Jerome Thomas, to substitute his son's interest in this suit. See Fed. R. App. P. 43(a) (providing for substitution ofa deceased party on appeal). Both parties agree that Thomas's death renders moot the declaratory and injunctive relief awarded him by the district court. "Where a case becomes moot after the district court enters judgment but before the appellate court has issued a decision, the appellate court must dismiss the appeal, vacate the district court's judgment, and remand with instructions to dismiss as moot." Bekier v. Bekier, 248 F.3d 1051, 1055-56 (11th Cir. 2001) (citing United States v. Ghandtchi, 705 F.2d 1315, 1316 (lIth Cir. 1983».
3

Case 3:04-cv-00917-TJC-JRK Document 475 Filed 02/02/11 Page 5 of 80 PageID 9127

However, although Thomas's death deprives us ofjurisdiction to determine the merits of his Eighth Amendment claim and the district court's award of his injunctive relief, "[w]hen plaintiffs clearly succeeded in obtaining the relief sought before the district court and an intervening event rendered the case moot on appeal, plaintiffs are still 'prevailing parties' for the purposes of attorney's fees for the district court litigation.,,2 Diffenderfer v. Gomez-Colon, 587 F.3d 445,454 (Ist Cir.2009). We thus hold that Thomas may still be a "prevailing party" entitled to attorneys' fees for the costs of the district court litigation notwithstanding his untimely death and the subsequent mootness of his lawsuit pending appeal.3 Accordingly, we vacate the district court's judgment and permanent injunction as to Thomas but grant the pending motion for substitution in order to allow the district court to resolve Thomas's motion for attorney's fees. The district court, in its discretion, may award fees to Thomas's estate if it determines that Thomas "succeeded on any significant issue in litigation which achieved some of the

2

The other circuit courts of appeals to address this issue have held the same. See

UFO Chuting of Haw.. Inc. v. Smith, 508 F.3d 1189, 1197 & n.8 (9th Cir. 2007); Dahlem v. Bd.

of Educ. of Denver Pub. Sch., 901 F.2d 1508, 1512-13 (lOth Cir. 1990); Palmer v. City of

Chicago, 806 F.2d 1316, 1321 (7th Cir. 1986); Grano v. Barry, 783 F.2d 1104, 1109 (D.C. Cir.

1986).

3

We note, however, that where, as here, a controversy is mooted before a Court of

Appeals issues a judgment, a party cannot be considered a "prevailing party" at the appeals stage,

so as to recover attorneys' fees for the cost of appellate litigation under § 1988 's fee-shifting

statute. Lewis v. Cont'l Bank Corp., 494 U.S. 472, 483, 110 S. Ct. 1249, 1256 (1990).

4

Case 3:04-cv-00917-TJC-JRK Document 475 Filed 02/02/11 Page 6 of 80 PageID 9128

benefit the parties sought in bringing suit." Tex. State Teachers Ass'n v. Garland Indep. Sch. Dist., 489 U.S. 782, 791-92, 109 S. Ct. 1486, 1493 (1989) (internal citation and quotation omitted).
Our review of the instant suit is thus limited to the remaining live controversy between the defendants and plaintiff McKinney. Our task is to determine whether the district court erred in concluding that the DOC's nonspontaneous use-of-force policy, as applied to McKinney, violates the Eighth Amendment and whether its permanent injunction was both necessary to remedy the violation of McKinney's rights and also properly tailored to the identified harm. Finding no error in the district court's thorough conclusions of law and narrowly tailored injunction, we affirm.
I. BACKGROUND In September 2008, after four years of litigation, the district court held a five-day bench trial on the plaintiffs' claims for declaratory judgment and injunctive relief. At trial, the district court had the benefit of hearing live testimony from thirteen lay and expert witnesses, the majority of which were officers and medical and mental health experts currently or formerly employed by the DOC.4

4

The parties proffered the testimony of an additional twelve witnesses, who were

also predominantly DOC officers and employees, via deposition and affidavit.

5

Case 3:04-cv-00917-TJC-JRK Document 475 Filed 02/02/11 Page 7 of 80 PageID 9129

The district court also had the opportunity to view numerous exhibits, including video recordings of specific incidents in which DOC officers sprayed McKinney and other plaintiffs with chemical agents. After trial, the district court entered a 75-page order in which it made extensive findings of fact and conclusions of law based on this evidence, which is reported in Thomas v. McNeil, No. 3:04-cv-917-J-32JRK, 2009 WL 64616 (M.D. Fla. Jan. 9,2009). The first fifty pages of that order are dedicated to factual findings.
The defendants' appellate briefs do not expressly challenge any of these findings as clearly erroneous on appeal, and the defendants conceded at oral argument that they only intend to appeal the district court's legal conclusions.s Thus, we adopt the district court's uncontested factual findings as our own. For a comprehensive summary of the facts underlying this case, as well as a detailed chronology of Michael McKinney's individual inmate record, we refer the parties and future litigants to the district court's opinion. See id. at *1-20. For purposes of this opinion, we recite only those facts essential to our disposition of this appeal,

5

However, the district court's legal conclusions are premised on additional factual

findings contained in the last twenty-five pages of the district court's opinion. These factual

findings concern whether the record evidence demonstrates that McKinney was no longer able to

conform his behavior to prison standards due to his mental illness and whether the record

demonstrates the necessary culpability of the defendants to find an Eighth Amendment violation.

The defendants repeatedly challenge these factual findings throughout their appellate briefs and

do not appear to have conceded these issues at oral argument. We address these factual findings

separately in Parts III.B.i. and III.B.ii.

6

Case 3:04-cv-00917-TJC-JRK Document 475 Filed 02/02/11 Page 8 of 80 PageID 9130

supplementing with additional facts contained in the record where necessary.

A. Florida State Prison and the DOC's Non-Spontaneous Use-of-Force Policy

At issue in this appeal is the constitutionality of the DOC's non-spontaneous

use-of-force policy as applied to McKinney during his incarceration on a close-

management wing ofFSP. FSP is a maximum security prison in Starke, Florida,

that houses a large population of inmates with serious mental illness. Id. at *2.

Close management refers to the administrative segregation of those inmates who

demonstrate particular difficulty complying with day-to-day prison regulations. Id.

Each close-management cell is a completely enclosed nine-by-seven foot single

cell, fortified with a solid steel door and containing a small window and a "food

flap" for passing food, medication, and other items to the inmate. Id. The DOC's

non-spontaneous use-of-force policy permits corrections officers to release

chemical agents, typically pepper spray, through the food flap of these cells as a

means of disciplining disruptive prisoners who refuse to comply with prison

•

?

regulations.6 Id. at *2-3.

6
states:

The DOC's non-spontaneous use-of-force policy as contained in the trial record

(m) Procedure for the use of chemical agents on disruptive inmates under controlled conditions:

1. If an inmate becomes disorderly, disruptive, unruly, and attempts by officers at 7

Case 3:04-cv-00917-TJC-JRK Document 475 Filed 02/02/11 Page 9 of 80 PageID 9131
counseling and ordering the cessation of disruptive behavior fails, the confinement or close management lieutenant or shift supervisor or person ofhigher rank shall be contacted for further instructions.
2. If the confinement or close management lieutenant or shift supervisor's efforts to control the disorderly inmate have failed and the use of chemical agents is the least level of force that can be expected to successfully gain control of the disruptive inmate while minimizing the risk of injuries to all involved, the shift supervisor shall: ...
a. When in a close management or confinement setting, review Form DC4-650B, Risk Assessment for the Use of Chemical Agents and Electronic Immobilization Devices, to determine if the inmate has a medical condition that would be exacerbated by the use of chemical agents ... or contact medical staff to determine whether the inmate has any medical condition that would make the use of chemical agents dangerous to that inmate's health ...
b. Contact the warden, or, in his or her absence, the duty warden and request authorization to utilize chemical agents.
3. Prior to using chemical agents, the inmate again shall be counseled with by the shift supervisor concerning his behavior.
a. If this attempt to counsel with the inmate is unsuccessful, the inmate will be given a final order by the shift supervisor to cease his actions. The inmate will also be informed at this time that chemical agents will be administered ifhe continues his disruptive behavior.
b. If the inmate continues his disruptive behavior, approximately three minutes after the order is given, staff are authorized to administer chemical agents in the form of no more than three one-second bursts....
c. If after approximately five minutes from the initial exposure the inmate still continues his disruptive behavior, staff are authorized to again administer chemical agents for no more than three one-second bursts.
d. If the second administration of chemical agents fails to control the inmate's disruptive behavior, the duty warden shall again be consulted to determine the next course of action. Additional actions include:
I. Additional administration of the same type or other type of chemical agent; and
8

Case 3:04-cv-00917-TJC-JRK Document 475 Filed 02/02/11 Page 10 of 80 PageID 9132
Pursuant to this policy, corrections officers may administer chemical agents
in three one-second bursts into the cell of a recalcitrant inmate in order to force the
inmate to comply with the officer's orders and to quell the underlying disturbance.
Id. at *2. Non-spontaneous force, as the name implies, is premeditated force, i.e.,
force that is only available as a disciplinary tool after corrections officers have
complied with a series of preliminary procedures. These procedures include the
requirement that an officer first confer with a direct supervisor, DOC medical
personnel (though not mental health staff), and the Warden of FSP for
II. Other uses of force as authorized by this rule.... (n) Medical Requirements. Once the inmate is compliant, he shall be showered as soon as possible but not later than 20 minutes after final application of chemical agents. The inmate shall be examined by medical staff immediately after showering.
1. If an inmate refuses to shower or change, the refusal shall result in a disciplinary report and be documented .... 2. In the event the inmate refuses to shower or change, staff shall advise the medical staff member who is responsible for examining the inmate following the use of force of this refusal and medical staffshall immediately report to the area to conduct a cellfront examination and to explain the importance of showering after exposure to chemical agents, except in case of emergency which shall be documented. 3. The shift supervisor shall again order the inmate to shower. If the inmate refuses again, this refusal shall also be documented in writing and witnessed by the shift supervisor and medical staff. 4. If medical staff determine that there is no immediate medical need for the inmate to shower, then for the next 2 hours the inmate shall be checked every 30 minutes and given the opportunity to shower....
9

Case 3:04-cv-00917-TJC-JRK Document 475 Filed 02/02/11 Page 11 of 80 PageID 9133
authorization to use chemical agents in the particular instance on the specific inmate at issue. Id. at *3. In contrast, spontaneous force is available to corrections officers as an immediate means of controlling emergency disturbances such as prison riots, acts of self-mutilation, or threats of violence, which pose imminent harm to an inmate or an officer. Id. at *2 n.l O. The use of spontaneous force at FSP is not at issue in this case.
Inmates in DOC custody receive a mental health classification, ranging from
S-l to S-6, upon entry into the system. III at *2. An S-3 classification is the
highest-needs mental health classification that the DOC confines in a regular prison setting and at FSP. Id. S-3 inmates are prescribed psychotropic medications to regulate some moderate impairment in adaptive functioning due to serious mental illnesses such as schizophrenia, bipolar disorder, major depression, or schizotypal or borderline personality disorders. Id. The DOC's non-spontaneous use-of-force policy applies equally to all inmates housed at FSP, regardless of their mental health classification. Accordingly, all inmates on FSP's close-management wings, including S-3 inmates diagnosed with serious mental illness, are subject to the application of chemical agents if they cause a disturbance or violate prison rules. Id. Prison rules governing FSP and other close-management wings prohibit banging or yelling from inside a fully-secured cell because such a disturbance may
10

Case 3:04-cv-00917-TJC-JRK Document 475 Filed 02/02/11 Page 12 of 80 PageID 9134
incite or disturb other inmates or prevent security from hearing an inmate in need.
Inmates with higher S-grades are confined to therapeutic prison settings or psychiatric hospital facilities where they are not subject to the DOC's nonspontaneous use-of-force policy. Id. One such facility is Union Correctional Institution ("UCI"), a DOC prison focusing on inpatient psychiatric care that houses S-3, S-4, and S-5 inmates and is adjacent to FSP. Id. at *5. At UCI, officers first respond to disturbances such as banging and yelling from within a cell by contacting mental health staff for counseling and medication adjustments as necessary. Id.
The district court heard significant trial testimony about the relationship between FSP and UCI and what both parties referred to as the "frequent-flier" syndrome. Frequent-fliers are those inmates who are cyclically shuttled back and forth between FSP and UCI when their mental illnesses become more active and their symptoms more pronounced, a phenomenon referred to at trial as "decompensation." Id. at *4--8. Transfers to VCI often result in the reclassification of these inmates' S-grade, intensive crisis stabilization, and an increase in or modification of their psychotropic medications. rd. at *6; 15-17. Once these inmates are stabilized at VCI, they are returned to FSP, often to begin the cycle of
11

Case 3:04-cv-00917-TJC-JRK Document 475 Filed 02/02/11 Page 13 of 80 PageID 9135

decompensation anew. Id. at *6. The district court found that record testimony on the frequent-flier syndrome
demonstrated that "an inmate's mental health designation may transition from one level to another" and that "[t]his transition may be gradual or sudden." Id. "When an S-3 inmate experiences this transition-decompensates-he may become confused, disorganized and disoriented, impacting his ability to follow orders because he has become preoccupied with internal thoughts and is rendered incapable of understanding or conforming to demands." Id. Thus, the district court found that "the record supports that there are (or at least have been) [closemanagement] inmates at FSP for whom the S-3 designation is no longer appropriate," id. at *8, and that "some S-3 inmates manifest symptoms of mental illness which are indistinguishable to security staff (and sometimes even to mental health staft) from behaviors which appear to be willful recalcitrance," id. at *24. Various witnesses testified that based on their observations some of these decompensated inmates have been sprayed with chemical agents for behaviors consistent with their mental illnesses, such as banging and yelling.' Id. at *5.

7

Dr. Olga Infante, a treating psychiatrist who worked at FSP and uel from 1999

through 2005, testified that "banging and yelling are behaviors that might signal an exacerbation

of the mental illnesses from which S-3 and S-4 inmates can suffer, such as the bipolar component

of those suffering from schizoaffective disorder." Thomas, 2009 WL 64616, at *5. Dr. Tuong
Nguyen, former medical director at uel and FSP, agreed that the frequent-flier phenomenon

demonstrated that inmates ''were being gassed with chemical agents at FSP for behavior that was

12

Case 3:04-cv-00917-TJC-JRK Document 475 Filed 02/02/11 Page 14 of 80 PageID 9136
The district court also made significant factual findings regarding the effects
of chemical agents on inmates with mental illness. The district court found that the
use of chemical agents on FSP inmates may cause both physical and psychological
injury beyond the short-lived intense physical pain, burning and gagging
sensations, and disorientation intended by their proper use.8 Id. at *4. The district
court found that further physical injury may occur "when ventilation is limited,
when proper decontamination procedures are not timely followed, or when the
person sprayed has a particular sensitivity to the product/' and testimony
established that these problems with the administration of chemical agents were
consistent with their diagnosed mental illnesses." Id. at *7. The plaintiffs also introduced into evidence the 2005-2006 Annual Report by the Florida Correctional Medical Authority ("CMA"), an independent agency created by the Florida legislature to monitor health care in the state's prisons, which stated that "mentally ill inmates may suffer symptoms that result in behaviors such as yelling incessantly, refusing to obey orders or lashing out without provocation and may have difficulty following the strict rules of a prison setting." Id. at *8. Although the defendants put forth testimony by Dr. Peggy Watkins-Ferrell, FSP's lead senior psychologist since 2003, that inmates are not being sprayed with chemical agents for behaviors which are simply uncontrollable symptoms of their mental illness, the district court emphasized that when the DOC performs mental competency evaluations following the use of force in order to determine whether the inmate should be subject to further disciplinary action for the disturbance causing the incident, these evaluations sometimes find that the inmate was not competent at the time he was sprayed. Id.
For example, the CMA, in its 2003-2004 annual report, expressed continuing "significant concern" that chemical agents were being inappropriately used on inmates in close management or confinement settings at DOC facilities resulting in serious medical consequences including serious chemical burns and the exacerbation of mental health symptoms, which in one instance led to an inmate's suicide. Thomas, 2009 WL 64616, at *8.
13

Case 3:04-cv-00917-TJC-JRK Document 475 Filed 02/02/11 Page 15 of 80 PageID 9137
present at FSp.9 Id. The district court also found that "[i]t is clear from [the] record that psychological injuries may also be suffered by exposure to chemical agents," which may include, as described by the plaintiffs' correctional mental health expert Dr. Kathryn Burns, "feelings of intense helplessness, fear of dying, attempts at suicide and exacerbation of other symptoms of mental illness." Id. These uncontested factual findings form the backdrop from which the district court viewed, and we now view, Michael McKinney's individual record.
B. Michael McKinney's Inmate and Mental Health Records McKinney's inmate record and mental health files indicate the following. McKinney has been incarcerated in various DOC facilities for almost his entire adult life. Id. at *14. He began serving his current life sentence for attempted first degree murder in 1989, at the age of 20. Id. His DOC inmate file reports that at age 16 he was identified as having only marginal intellectual functioning and propensities for anger and anti-social behavior. Id. By 2007, McKinney had over 320 disciplinary reports and a record the DOC's psychological assessment team

9

For example, the DOC's non-spontaneous use-of-force policy requires that

corrections officers offer inmates sprayed with chemical agents a decontaminating shower to

remove any chemical residue from an inmate's skin and clean the inmate's cell, bedding, and

clothing following a use-of-force incident. Thomas, 2009 WL 64616, at *3. However, inmates

frequently refuse to submit to handcuffing to be taken to the shower after being sprayed and thus

are not properly decontaminated, which can result in severe burns on the affected areas of skin.

Id. at *3, *13.

14

Case 3:04-cv-00917-TJC-JRK Document 475 Filed 02/02/11 Page 16 of 80 PageID 9138

referred to as "pathological." Id. Throughout the course of his incarceration, McKinney has been diagnosed with various serious mental illnesses, including an adjustment disorder with a depressed mood, antisocial personality disorder, and major depression with recurrent psychotic ideations. Id. McKinney has a history of self-injurious behavior, including head banging, self-inflicted lacerations, drug overdoses, setting fires in his cell, and suicide attempts.
Between the years 2001 and 2007, McKinney was sprayed with chemical agents 36 times pursuant to the DOC's non-spontaneous use-of-force policy for banging, kicking, yelling, throwing feces, or refusing to remove his arm from the
food flap in his cell. 10 Id. at *15-17. During this same time period, he was
transferred to VCI ten times for ongoing treatment and to the FSP infirmary seven times for various psychological emergencies or short-tenn psychiatric care, some of which resulted in his ultimate transfer to VCI. While housed at FSP, McKinney was consistently classified as an S-3 inmate. I I While in treatment at VCI, he was reclassified at a higher S-grade on at least two occasions, once as an S-5 inmate in March 2003 and once as an S-4 inmate in July 2007. Since July 31, 2007,

10 Earlier records of such incidents are not in McKinney's file. Thomas, 2009 WL 64616, at *15.

II

There is some indication that McKinney was briefly classified as an S-2 inmate at

some point during his years at FSP but not that this classification corresponded with any of the

use of force incidents relevant to this action.

15

Case 3:04-cv-00917-TJC-JRK Document 475 Filed 02/02/11 Page 17 of 80 PageID 9139
McKinney has been incarcerated at vel.
While McKinney's record demonstrates substantial periods in which he appeared to adjust relatively well to prison life at FSP, it is also full of many periods in which he chronically violated prison rules, experienced serious psychological emergencies, and suffered from frequent chemical sprayings. Significantly, many of these chemical sprayings followed close on the heels of incidents demonstrating that his mental health status was deteriorating. Additionally, many of these chemical sprayings immediately preceded McKinney's transfer to UCI or FSP's infirmary.
The year 2002 demonstrates the seriousness of McKinney's mental illness and his difficulty coping with life on the close-management wing. That year he was sprayed with chemical agents six times for yelling, kicking, and/or beating on
his cell door. Id. at *15. On August 21, a few weeks after the last of the six
sprayings, McKinney attempted to hang himself in his cell. Id. The DOC responded by sending him to the FSP infirmary with a diagnosis of major
depression, where he remained until September 16 when he was transferred to vel
for three months of stabilization and treatment. Id. After he was released from
vel on December 16, McKinney only spent two days on his FSP wing until he
returned to the FSP infirmary where he was diagnosed as suicidal, homicidal,
16

Case 3:04-cv-00917-TJC-JRK Document 475 Filed 02/02/11 Page 18 of 80 PageID 9140
bipolar, and psychotic. Id. He was released again to his wing only to return to the infirmary again for eight more days of treatment. Id. His third return to his wing also failed; after three days, he returned to the infirmary for the entire month of January 2003. Id.
We see similar evidence of McKinney's psychological distress in the period from March to August 2003, as well as a close temporal relationship between the use of chemical agents and his transfers out ofFSP's close-management wing. During this period, McKinney was sprayed with chemical agents five times. On March 5, he was sprayed with chemical agents on two separate occasions for yelling obscenities and kicking and beating on his cell door. Id. The following day, McKinney was found in his cell engaging in the unusual behavior of standing on and jumping off of his cell sink. Id. FSP doctors ordered corrections officers to use force to restrain him from continuing this behavior, and McKinney was transferred to the FSP infirmary's isolation cell where he remained for a week before being transferred to UCI on March 13. Id. At UCI, McKinney was reclassified from S-3 status to S-5 status and received inpatient treatment to restabilize his mental illness. Id. On May 25, during his treatment at UCI, McKinney set fire to his cell. Id. Subsequently, on May 29, after spending several days at UCl's infirmary, UCI correctional staff sprayed McKinney with chemical
17

Case 3:04-cv-00917-TJC-JRK Document 475 Filed 02/02/11 Page 19 of 80 PageID 9141
agents in response to a disturbance in which he was screaming and making threats of hurting himself.12 Id. McKinney returned to FSP on June 6. Id. Only ten days later, he was sprayed with chemical agents, again for yelling obscenities and kicking and banging inside his cell. Id. One month later, on July 15, he was again sprayed for the same behavior, and he was transferred to the FSP infirmary the following day. Id. From the infirmary, McKinney was transferred back to UCI for psychiatric observation and treatment until August 7, 2003. Id. Treatment notes from this stay at VCI report that McKinney stated that he "is doing well coping while here but does not know how he will cope at FSP because he believes he has to be on guard against unwarranted gassings." Id.
McKinney's most serious incidents of self-injurious behavior occurred in October of 2003. This period illustrating McKinney's psychological distress, the use of chemical agents, and his transfer out of FSP for inpatient treatment began on October 6 when he declared a mental health emergency and told a psychological specialist he was going to hurt himself. Id. The following day, McKinney threw feces at an officer, to which corrections officers responded with the use of chemical
12 According to record testimony, the use of chemical agents at VCI for a mere disturbance, such as yelling and screaming, would be a deviation from standard practice. Thomas, 2009 WL 64616, at *15 n.33. It is possible that McKinney's threats ofself-intlicted injury caused UCI staff to deem force necessary; however, the record is unclear as to whether such an assessment was made or the reason behind the decision to use force. Id.
18

Case 3:04-cv-00917-TJC-JRK Document 475 Filed 02/02/11 Page 20 of 80 PageID 9142

agents. Id. Later that same day, McKinney refused to submit to restraints so officers could search his cell, resulting in a cell extraction. 13 Id. That evening, McKinney was sprayed with chemical agents again for yelling and kicking in his cell. Id. Four days later, on October 11, McKinney again refused to stop yelling and kicking in his cell and was sprayed with chemical agents for the third time in five days. Id. On October 13, two days later, correctional officers found McKinney banging his head on his steel bunk and cell door, which resulted in injuries requiring treatment at the FSP emergency room and his subsequent transfer to UCI. Id. Treatment notes from this period indicate that McKinney "was having problems with staff spitting in his food and gassing him and he believes this will always be the same" and that "they gas him ... even ifhe does nothing." Following two weeks of treatment, McKinney returned to FSP, only to be admitted back to the emergency room two days later after jumping down a flight of eight stairs, head-first. rd. The laceration he sustained on his head from the incident required seven staples to close, and McKinney reported that he wanted to kill himself. Id. He remained in treatment until November 2003. rd.
After this period, fewer incidents of such extreme psychological trauma

13

In a cell extraction, a team of five correctional officers enter an inmate's cell and

forcibly restrain and remove him. Thomas, 2009 WL 64616, at *2. Cell extractions used to be

the DOC's primary method of gaining an inmate's compliance with an order until 1999 when an

inmate, Frank Valdes, died at FSP as a result of this practice, likely due to severe beating. Id.

19

Case 3:04-cv-00917-TJC-JRK Document 475 Filed 02/02/11 Page 21 of 80 PageID 9143
occurred, but McKinney's mental health record continued to demonstrate that he was at risk for suicide and self-injury. For example, from early February to early March 2004, McKinney was sprayed with chemical agents four times, and outpatient therapy reports indicate that he was adjusting poorly to confinement and experiencing suicidal ideations. Id. Treatment notes record that McKinney was being referred to psychiatry for assessment of his suicide and self-harm risk and include the following statement demonstrating McKinney's fear of chemical sprayings: "I need to be alert they gas me so often."
Similarly, in June 2004, McKinney was sprayed with chemical agents and then transferred to the FSP infirmary the next day for a psychological assessment. Id. at *16. McKinney consented to inpatient treatment at this time, admitting, "I can't help myself." Id. McKinney remained in the infirmary for five days until the examining psychiatrist, Dr. Philip Springer, determined he could be released back to his wing. Id. In his notes, Dr. Springer reported that despite McKinney's "fatigued appearance," "agitated behavior," "angry mood and affect," "skewed perception," and "poor insight and judgment," he retained positive and healthy
thoughts. 14 lit. Contrary to Dr. Springer's assessment, McKinney was sprayed with
14 Dr. Springer erroneously noted in McKinney's record that he had been classified as an S-3 inmate for his entire period of incarceration, which is inaccurate based on the record, which indicates that at this time he had already been given a higher classification on at least one occasion, when he was designated an S-5 inmate on March 13,2003, while at UCI. Thomas,
20

Case 3:04-cv-00917-TJC-JRK Document 475 Filed 02/02/11 Page 22 of 80 PageID 9144
chemical agents only four hours after his release back to his wing on June 21 for kicking, banging, and yelling obscenities, sprayed again on June 22 for the same behaviors, and transferred to VCI for one week of treatment immediately thereafter due to a risk of suicide or injury to self or others. Id. Treatment notes from this period record McKinney as stating, "I feel depressed most of the time. I'm getting gassed."
Again, in the first six months of 2005, McKinney was sprayed four times with chemical agents, declared multiple psychological emergencies, admitted to suicidal ideations, set his cell on fire, and was diagnosed at least once with "acute symptoms which cannot be managed safely on an outpatient basis." On April 3, McKinney wrote to DOC Health Services requesting inpatient counseling for depression and "thoughts of hurting myself." In the letter, he noted that he had been gassed between 30 and 40 times. During this period, McKinney was transferred back and forth from FSP to VCI twice and in May consented to being prescribed psychotropic medication. Id.
Then, in May 2007, after a period of relative adjustment to life on the closemanagement wing, McKinney was transferred back to VCI, where he consented to being prescribed another psychotropic medication. Id. McKinney remained at VCI
2009 WL 64616, at *16 & n.35.
21

Case 3:04-cv-00917-TJC-JRK Document 475 Filed 02/02/11 Page 23 of 80 PageID 9145
for treatment for seven weeks, and a July 2, 2007, treatment note indicates he was classified as an S-4 inmate at this time. Id. Four days later, McKinney returned to FSP. Id. On July 25, he was then sprayed twice in the same day for refusing to remove his arm from his food flap. After both incidents, McKinney refused to leave his cell for a decontaminating shower, as he had on many past occasions. Id. Treatment notes indicate that McKinney exhibited agitated, hostile, oppositional, and defiant behaviors at this time and was unwilling to cooperate with any of the
DOC employees conducting post-use-of-force examinations. Id. at *17. However,
treatment notes from the following day indicate that McKinney did not appear to be in crisis, exhibited no evidence of psychosis, but his use-of-force history demonstrated that he struggled to function in the FSP environment and was therefore referred to a supervisor for further assessment. Id.
Soon thereafter, the record indicates that Dr. Hall, one of deendants' experts, reviewed McKinney's file in preparation for trial and generated an "emergency referral" to have McKinney removed to VCI. Id. On July 31, 2007, McKinney was transferred to UCI due to his history of use-of-force incidents (five in the last four months), refusal to participate in case management or group therapy, refusal of medication, history of self-injurious behavior, poor adjustment to incarceration, and hundreds of disciplinary reports. Id. The assessment further stated that
22

Case 3:04-cv-00917-TJC-JRK Document 475 Filed 02/02/11 Page 24 of 80 PageID 9146
although McKinney's thought processes were clear and coherent, he nonetheless had evidence of a fonnal thought disorder, marked by suspicious thoughts and paranoid features. Id. Dr. Hall testified that while none of McKinney's mental health evaluations indicated any acute impainnent warranting referral to an inpatient unit, his long-established pattern of repeated conflicts, disciplinary reports and refusals to participate in treatment indicated that he needed a more structured and intensive setting for his mental health needs. Id. McKinney remains incarcerated at VCI at this time.
C. Recent DOC Refonns The district court also heard testimony at trial about recent refonns instated by the DOC in an attempt to address the general increase in the number of inmates with mental illness incarcerated nationwide and as a result of an earlier lawsuit addressing the conditions of confinement and delivery of mental health services for inmates housed on close-management wings throughout the State of Florida. Id. at *9-11. See Osterback v. McDonough, 549 F. Supp. 2d 1337 (M.D. Fla. 2008). The defendants put forth this evidence in an attempt to demonstrate that even if the district court concluded that they violated the plaintiffs' Eighth Amendment rights in the past, the DOC's policies with respect to mental health services at FSP have evolved such that the plaintiffs no longer face a real risk of being subjected to an
23

Case 3:04-cv-00917-TJC-JRK Document 475 Filed 02/02/11 Page 25 of 80 PageID 9147
Eighth Amendment violation in the future. These reforms include "the Osterback training," which provides additional training for security staff working on closemanagement wings in order to teach these officers to recognize the signs and symptoms of the onset of acute mental illness. Thomas, 2009 WL 64616, at *9. There is also a new policy that now requires a post-use-of-force mental health evaluation of inmates subjected to a use of force within one day of the incident, excluding holidays and weekends. Id. An additional policy change provides new transitional housing for inmates being transferred between FSP and VCI. Id. at *10. Inmates awaiting transfer to VCI housed in the new temporary O-Dorm may not be non-spontaneously sprayed with chemical agents, and those newly transferred back to FSP from VCI now spend 90-days in a transitional N-Dorm where they may only be non-spontaneously sprayed with chemical agents if security staff trained in crisis intervention deem it appropriate. Id.
D. Final Judgment On this record, the district court concluded that McKinney demonstrated that the repeated chemical sprayings he received pursuant to the DOC's nonspontaneous use-of-force policy constituted cruel and unusual punishment, id. at *26-27, and that recent DOC reforms did not eliminate the risk that he would be unconstitutionally subjected to the policy in the future, id. at *28-30. To remedy
24

Case 3:04-cv-00917-TJC-JRK Document 475 Filed 02/02/11 Page 26 of 80 PageID 9148
this Eighth Amendment violation, the district court issued a final injunction that enjoined defendants from allowing the non-spontaneous use of chemical agents on McKinney without first consulting with the DOC's trained mental health staff to determine whether he is capable of conforming his conduct to the directives given by corrections staff. Thomas v. McNeil, No. 3:04-cv-917-J-32JRK., 2009 WL 605306, at *2-3 (M.D. Fla. March 9,2009).
II. STANDARD OF REVIEW The defendants raise two issues on appeal: whether McKinney established an Eighth Amendment violation and whether the district court's injunction was proper. Although we review the district court's entry of a permanent injunction for an abuse of discretion, the district court's underlying legal conclusion-that there was an Eighth Amendment violation warranting equitable relief-is reviewed de novo. Common Cause/Georgia v. Billups, 554 F.3d 1340, 1349 (11th Cir. 2009). Subsidiary issues of fact are reviewed for clear error. Id.
III. DISCUSSION The Eighth Amendment's prohibition against cruel and unusual punishment, applicable to the State of Florida through the Due Process Clause of the Fourteenth Amendment, Robinson v. California, 370 U.S. 660, 82 S. Ct. 1417 (1962), prohibits the "unnecessary and wanton infliction ofpain/' Hudson v. McMillian,
25

Case 3:04-cv-00917-TJC-JRK Document 475 Filed 02/02/11 Page 27 of 80 PageID 9149
503 U.S. 1,5, 112 S. Ct. 995, 998 (1992). In the prison context, three distinct Eighth Amendment claims are available to plaintiff inmates alleging cruel and unusual punishment, each of which requires a different showing to establish a constitutional violation. Danley v. Allen, 540 FJd 1298, 1306 (11 th Cir. 2008), overruled in part on other grounds, Randall v. Scott, No. 09-12862,2010 WL 2595585 (11th Cir. Jun 30,2010). The Eighth Amendment can give rise to claims challenging specific conditions of confinement, the excessive use of force, and the deliberate indifference to a prisoner's serious medical needs. Id. Each of these claims requires a two-prong showing: an objective showing of a deprivation or injury that is "sufficiently serious" to constitute a denial of the "minimal civilized measure of life's necessities" and a subjective showing that the official had a "sufficiently culpable state of mind." Farmer v. Brennan, 511 U.S. 825, 834, 114 S. Ct. 1970, 1977 (1994) (internal citations and quotations omitted). 15 Both of these inquiries are contextual. Because the Eighth Amendment "draws its meaning from the evolving standards of decency that mark the progress of a maturing society," the objective harm inquiry is contextual in that it is responsive to
IS The Prison Litigation Refonn Act ("PLRA") also mandates that a plaintiff inmate
exhaust administrative remedies prior to filing an Eighth Amendment suit. 42 U.S.C. § I997e(a); Chandler v. Crosby, 379 F.3d 1278, 1286 (11 th Cir. 2004). The district court
concluded that the plaintiffs had adequately exhausted their administrative remedies under the PLRA, a finding the parties have not contested on appeal.
26

Case 3:04-cv-00917-TJC-JRK Document 475 Filed 02/02/11 Page 28 of 80 PageID 9150
contemporary standards. Hudson, 503 U.S. at 8, 112 S. Ct. at 1000 (internal citation and quotation omitted). Additionally, what is necessary to show sufficient hann and what is necessary to show a sufficiently culpable state of mind varies with the type of Eighth Amendment claim at issue. Id. at 8-9, 112 S. Ct. at 1000.
For example, to make out a claim for an unconstitutional condition of confinement, "extreme deprivations" are required, whereas in the excessive-force context, contemporary standards of decency may be violated even where no significant injury is evident. Id. at 9-10, 112 S. Ct. at 1000. With respect to the subjective inquiry, in both prison conditions and medical needs cases, the relevant state of mind for purposes of liability is deliberate indifference. Wilson v. Seiter, 501 U.S. 294, 303,111 S. Ct. 2321, 2327 (1991). Excessive-force claims, however, require a showing of a heightened mental state-that the defendants applied force "maliciously and sadistically for the very purpose of causing harm." Id. at 302, IllS. Ct. at 2326 (citing Whitley v. Albers, 475 U.S. 312, 320-21, 106 S. Ct. 1078, 1085 (1986}).
The district court evaluated the plaintiffs' claims as a challenge to a condition of their confinement. The defendants raise the threshold argument on appeal that in doing so the district court applied the wrong Eighth Amendment standard. We address this argument first before turning to an analysis of the
27

Case 3:04-cv-00917-TJC-JRK Document 475 Filed 02/02/11 Page 29 of 80 PageID 9151
defendants' challenges to the declaratory judgment and injunctive relief awarded to McKinney.
A. Governing Eighth Amendment Standard According to the defendants, because this case challenges the constitutionality of a use-of-force policy, which is employed by corrections officers to respond to a prison disturbance and for purposes of maintaining prison discipline, this case can only be properly characterized as a challenge to an excessive use of force. Because Eighth Amendment claims alleging excessive force require a showing that the defendant acted "maliciously and sadistically for the very purpose of causing harm"-a higher standard than that governing Eighth Amendment claims alleging an unconstitutional condition of confinement-the defendants argue that had the district court applied the proper standard, McKinney would never have prevailed on the merits of his claim. While the defendants expended significant efforts briefing this issue on appeal, they failed to adequately preserve these arguments before the district court. The defendants assert that they raised the argument that an excessive-force standard should govern the plaintiffs' claims "well before final judgment" and that this was sufficient to preserve the issue for purposes of appeal. We disagree. Although the defendants technically raised this argument before final judgment,
28

Case 3:04-cv-00917-TJC-JRK Document 475 Filed 02/02/11 Page 30 of 80 PageID 9152
they also waited until after the district court's five-day bench trial and after the district court's entry of its 75-page findings of fact and conclusions of law to challenge the application of a conditions-of-confinement standard to the plaintiffs' claims. It was not until the defendants filed a post-trial motion to amend the district court's findings under Fed. R. Civ. P. 52(b) that they first argued that an excessive-force standard should exclusively govern the plaintiffs' case. This lastditch attempt at preservation is simply inadequate. See MCA Television Ltd. v. Feltner, 89 F.3d 766, 770-71 (11th Cir. 1996) (holding that a defendant's failure to raise a legal issue before or during his case at trial waived his right to pursue the issue on appeal); United States v. Millet, 559 F.2d 253, 257 (5th Cir. 1977) ("This Court is of the opinion that raising this issue by way of a post-trial motion was so untimely as to amount to a waiver.")}6 See also Highlands Ins. Co. v. Lewis Rail Servo Co., 10 F.3d 1247, 1251 (7th Cir. 1993) ("Lewis waived this argument by failing to raise this argument until its motion to reconsider."); Am. Meat Inst. v. Pridgeon, 724 F.2d 45, 47 (6th Cir. 1984) (concluding that by raising their severability argument for the first time in their motion for reconsideration, the defendants effectively waived this argument and "have no basis to assign failure to
16 The Eleventh Circuit, in an en banc decision, Bonner v. City of Pritchard, 661 F.2d 1206, 1209 (11th Cir. 1981), adopted as precedent decisions of the former Fifth Circuit rendered prior to October 1, 1981.
29

Case 3:04-cv-00917-TJC-JRK Document 475 Filed 02/02/11 Page 31 of 80 PageID 9153
sever as an error on this appeal"). Accordingly, we decline to consider the
defendants' belated arguments now.
The defendants' delay in raising this argument is particularly inexcusable in
light of the ample notice the plaintiffs and the district court gave the defendants as
to their intent to treat this case as a conditions-of-confinement challenge, not an
excessive-force case. 17 Despite this notice, the defendants repeatedly endorsed the
use of a deliberate-indifference standard to analyze the plaintiffs' equitable claims
in their summary judgment submissions, pre-trial brief, and post-trial proposed
17 For example, in the plaintiffs' pre-trial brief, they candidly highlighted the issue of which Eighth Amendment standard should apply, admitting that their case did not "fit neatly into either category" of Eighth Amendment claims. The plaintiffs then made the argument, which the district court ultimately adopted, that the deliberate-indifference standard was more appropriate for this case because the plaintiffs challenge a broad "eight-year policy of an entire department" not deserving of the deference given to a single guard's decision to use force in an individual incident of alleged excessive force. At trial, the plaintiffs again emphasized that although this case implicates the "use of force," it is about "existing conditions." The district court also plainly indicated at trial that it understood this case "not to be about ... policies ... incorrectly applied to specific persons, such as would be in an excessive force case ... ," but whether a policy that is being correctly applied is unconstitutional.
Furthermore, when asked to submit proposed findings offact and conclusions oflaw, the plaintiffs did not hesitate to clearly reiterate their consistent position that the DOC's wantonness should be considered under the deliberate indifference standard. The plaintiffs argued that "[i]n prison cases-such as the instant case-where 'officials formulate a policy in circumstances where there are no particular constraints on the officials' decisionmaking process ... and the implementation of the policy will inflict pain upon the inmates on a routine basis, [courts] need not look for a showing of action taken "maliciously and sadistically" before Eighth Amendment protections are implicated.'" See Jordan v. Gardner, 986 F.2d 1521, 1528 (9th Cir. 1993) (en banc).
30

Case 3:04-cv-00917-TJC-JRK Document 475 Filed 02/02/11 Page 32 of 80 PageID 9154
findings of fact. 18 In light of the defendants' failure to assert the contrary, it is
unsurprising that the district court concluded not only that the deliberate-
indifference standard was the proper standard for analyzing the plaintiffs' claims
but also that the defendants effectively acquiesced in this conclusion. Thomas,
2009 WL 64616, at *21 n.42 (reasoning that where the challenge is against top
DOC officials and challenges a prison's "considered policy" regarding the use of
non-spontaneous force on fully secured inmates with mental illness the heightened
standard applicable to decisions made "in haste, under pressure, and frequently
without the luxury of a second chance" was not appropriate (citing Whitley, 475
U.S. at 320, 106 S. Ct. at 1084) and noting that "Defendants have not suggested"
otherwise).
18 Beginning with the defendants' summary judgment motion, they acknowledged that the plaintiffs' injunctive claims were claims "related to the conditions of their confinement." In their motion for reconsideration of their summary judgment motion-filed one month before trial-they unequivocally stated that "Plaintiffs' claims as plead are expressly limited to conditions of confinement at FSP (Le., the non-spontaneous use of chemical agents)." In their pre-trial brief, the defendants recite both the "deliberate indifference" and "malicious and sadistic" standards governing various Eighth Amendment claims but then make no attempt to specify which standard should govern the claims at issue in the upcoming bench trial. And yet after trial, in their proposed findings of fact and conclusions of law, the defendants suggested that the deliberate indifference standard applies. Under the heading,"The Department's policy does not violate the Eighth Amendment," the defendants described the standard that "Plaintiffs must meet" as being "proof that the correctional officer in question was deliberately indifferent to the harm or risk of harm." Although the defendants did later in this same brief cite language from Whitley under a separate heading entitled "Chemical Agents," there was no clear assertion that the Whitley's excessive-force standard should apply to this case. Significantly, nowhere in their proposed conclusions do the defendants argue that the excessive-force standard should be used exclusively. And nowhere do the defendants respond to the plaintiffs' and the district court's assertions that this case challenges a condition of confinement.
31

Case 3:04-cv-00917-TJC-JRK Document 475 Filed 02/02/11 Page 33 of 80 PageID 9155
In sum, the defendants' attempt to raise this issue in a post-trial motion, regardless of whether that motion was submitted technically before final judgment, was insufficient to preserve it for appeal. It would subvert the orderly judicial process to permit the defendants to wait until after the presentation of the evidence, after the pre-trial and post-trial briefing, and after the district court had painstakingly concluded that the use of chemical agents on McKinney amounted to an unconstitutional condition of his confinement to request an entirely new lens through which to evaluate his claims. Thus, we hold that the defendants waived any challenge to the district court's use of the deliberate-indifference standard. We assume without deciding that the district court was correct in treating the plaintiffs' claims as a challenge to a condition of their confinement and evaluate McKinney's claim under this standard.
B. McKinney's Subjection to Chemical Agents as an Unconstitutional Condition of Confinement
"The Constitution does not mandate comfortable prisons, but neither does it permit inhumane ones ...." Farmer, 511 U.S. at 832, 114 S. Ct. at 1976 (internal quotation and citation omitted). Thus, in its prohibition of "cruel and unusual punishments," the Eighth Amendment requires that prison officials provide humane conditions of confinement. Id. However, as noted above, only those conditions which objectively amount to an "extreme deprivation" violating contemporary
32

Case 3:04-cv-00917-TJC-JRK Document 475 Filed 02/02/11 Page 34 of 80 PageID 9156
standards of decency are subject to Eighth Amendment scrutiny. Hudson, 503 U.S. at 8-9, 112 S. Ct. at 1000. Furthermore, it is only a prison official's subjective deliberate indifference to the substantial risk of serious harm caused by such conditions that gives rise to an Eighth Amendment violation. Farmer, 511 U.S. at 828, 114 S. Ct. at 1974 (quotation and citation omitted); Wilson, 501 U.S. at 303, 111 S. Ct. at 2327.
The defendants assert on appeal that McKinney failed to satisfy both the objective and subjective components of his conditions-of-confinement claim. We begin with an analysis of the objective inquiry. In doing so, we are mindful that we must refrain from imposing our own theories of penology on the nation's prisons and strive to inform our analysis with objective factors to the maximum extent possible. See Rhodes v. Chapman, 452 U.S. 337,346, 101 S. Ct. 2392, 2399 (1981) ("Eighth Amendment judgments should neither be nor appear to be merely the subjective views ofjudges.") (internal quotation and citation omitted); Chandler v. Crosby, 379 F.3d 1278, 1290 (lith Cir. 2004) ("As judges, we lack carte blanche to impose our own theories of penology on the nation's prisons.") (internal quotation and citation omitted).
1. Extreme Deprivation The district court concluded that McKinney's subjection to the DOC's non-
33

Case 3:04-cv-00917-TJC-JRK Document 475 Filed 02/02/11 Page 35 of 80 PageID 9157
spontaneous use-of-force policy amounted to an extreme deprivation satisfying the Eighth Amendment's objective injury requirement. Thomas, 2009 WL 64616, at *24, *27. More specifically, the court concluded that it was an extreme deprivation of McKinney's constitutional right to humane prison conditions for FSP officers to repeatedly spray him with chemical agents in order to enforce prison regulations with which McKinney had no capacity to comply due to his mental illness with the result that these sprayings caused him "lasting psychological injuries." Id. at *22-24, *27.
We review the district court's factual findings for clear error and its legal conclusions de novo. Common Cause/Georgia, 554 F.3d at 1349. "Clear error is a highly deferential standard of review." Holton v. City of Thomasville Sch. Dist., 425 F.3d 1325, 1350 (l1th Cir. 2005). "[A] finding is 'clearly erroneous' when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." Anderson v. City of Bessemer City. N.C., 470 U.S. 564,573,105 S. Ct. 1504, 1511 (1985) (internal quotation and citation omitted). Whether the record demonstrates that McKinney was sprayed with chemical agents at times in which he had decompensated (i.e., at times when he was unable to understand and comply with officers' orders because of his mental illness) and that he suffered psychological
34

Case 3:04-cv-00917-TJC-JRK Document 475 Filed 02/02/11 Page 36 of 80 PageID 9158
injuries from such sprayings are questions of fact. Whether these deprivations are objectively "sufficiently serious" to satisfy the objective prong, Farmer, 511 U.S. at 834, 114 S. Ct. at 1977, is a question of law we evaluate based on "evolving standards of decency," Rhodes, 452 U.S. at 346, 101 S. Ct. at 2399. We balance these standards of decency against prison officials' need to keep the prison safe. Hope v. Pelzer, 240 F.3d 975, 979 (11th Cir. 2001), overruled in part on other grounds, 536 U.S. 730, 122 S. Ct. 2508 (2002). "However, an infliction of pain 'without penological justification' is considered to be 'unnecessary and wanton. '" Id. We agree with the district court that McKinney has satisfied this objective standard.
The defendants challenge both the district court's factual findings with respect to McKinney and its legal conclusion that the use of chemical agents in McKinney's case satisfied the Eighth Amendment's objective injury requirement. With respect to the court's factual findings, the defendants argue that "there is no evidence that [McKinney] was ever acutely mentally ill when sprayed" or that he "could not understand officers' commands or control his actions each time he was sprayed with chemical agents." With respect to the district court's legal conclusion, the defendants argue that because chemical agents have been deemed the least harmful alternative among the options available to prison officials to
35

Case 3:04-cv-00917-TJC-JRK Document 475 Filed 02/02/11 Page 37 of 80 PageID 9159
respond to a prison disturbance their use can never constitute "unnecessary or brutal treatment in violation of the Eighth Amendment." The defendants even go so far as to argue that the use of chemical agents, where administered properly, even when administered against a decompensated inmate, "do not exceed the normal discomfort of the prison environment." We reject both of these arguments in tum.
First, with respect to the court's factual findings, our independent review of McKinney's record demonstrates that the court did not clearly err in finding that McKinney had decompensated '9 at times that he was sprayed with chemical agents and that he suffered psychological injury from these sprayings. McKinney's record demonstrates that he was sprayed with chemical agents pursuant to the DOC's nonspontaneous use-of-force policy on 36 separate occasions between 2001 and 2007, when he was last transferred to UCI for inpatient treatment. On all but two of these occasions, he was sprayed for causing a disturbance on his wing by yelling and/or kicking and beating his cell door or steel bed, behaviors which were identified at trial as consistent with and indicative of "an exacerbation of the mental illnesses
19 The district court used the phrases "sprayed at time he had decompensated" and "spraying him with chemical agents ... for behaviors caused by his mental illness" as having the same meaning as the defendants' having sprayed McKinney at times when he was unable to understand or comply with the orders of DOC officials.
36

Case 3:04-cv-00917-TJC-JRK Document 475 Filed 02/02/11 Page 38 of 80 PageID 9160
from which S-3 and S-4 inmates suffer.,,20 Thomas, 2009 WL 64616, at *5. On many occasions, McKinney exhibited unambiguous symptoms of decompensation immediately prior to these chemical sprayings. McKinney's record also demonstrates that he frequently displayed acute symptoms of his mental illness following chemical sprayings, which often led to his transfer to VCI or the FSP infirmary for treatment.
For example, on March 5, 2003, he was sprayed with chemical agents, only to be found the following day engaged in the bizarre behavior ofjumping off his cell sink, which led to his immediate transfer to DCI where he was reclassified as an S-5 inmate. Id. at *15. On July 15,2003, he was sprayed with chemical agents and transferred the next day to the FSP infirmary and then to VCI for weeks of psychiatric observation and treatment. Id. On October 6,2003, McKinney warned a psychological specialist he was going to hurt himself, and yet officers sprayed him with chemical agents the following day on two separate occasions, once for throwing his feces and once for yelling and kicking in his cell. That same day, officers also performed a cell extraction to search his cell. Id. Four days later, officers again sprayed McKinney with chemical agents, and two days later he
20 The two exceptions involved an incident in which McKinney threw feces at a staff member on October 7, 2003, and an incident in which McKinney refused to remove his arm from the food-flap opening in his cell on July 25,2007. Thomas, 2009 WL 64616, at *15, *16.
37

Case 3:04-cv-00917-TJC-JRK Document 475 Filed 02/02/11 Page 39 of 80 PageID 9161
exhibited extreme psychological distress, banging his head on his steel bunk and cell door, which resulted in his transfer to the emergency room and then to UCl for two weeks of treatment. Id. Although McKinney was theoretically stabilized at UCI during this treatment and deemed capable of returning to his FSP wing, he jumped down a flight of stairs two days after his return, resulting in a laceration requiring seven stitches. After this incident, McKinney expressed ongoing suicidal ideations. Id. Similarly, in June 2004, McKinney was sprayed with chemical agents and then sent to the FSP infirmary the following day for a psychological assessment. Id. at *16. Four hours after his release to his FSP wing, McKinney was again sprayed with chemical agents, and the same behavior subjected him to a second spraying the next day. Id. Immediately following this spraying, he was transferred to VCI as a suicide or self-injury risk. Id.
Moreover, viewing McKinney's record as a whole it is apparent that during the periods in which he was repeatedly sprayed with chemical agents he experienced frequent psychological emergencies, which included suicide attempts (by hanging on August 21, 2002), suicidal threats and ideations (May 29,2003, September 6,2003, February 2004, and June 2004), self-injurious behavior (jumping off his cell sink on March 6, 2003, setting fire to his cell on May 25, 2003 and May 16, 2005, head banging on October 13, 2003, and diving off a flight of
38

Case 3:04-cv-00917-TJC-JRK Document 475 Filed 02/02/11 Page 40 of 80 PageID 9162
stairs on October 29,2003), and psychotic episodes (bouts at the FSP infinnary with diagnoses of being "suicidal, homicidal, bipolar, and psychotic" in December 2002 and receiving a mental health emergency diagnosis on May 16, 2005 that he was experiencing "acute symptoms which cannot be managed safely on an outpatient basis"). McKinney's record also provides repeated documentation of his fear of chemical sprayings, which impacted his ability to cope on the closemanagement wing and was his stated reason for refusing to accept psychotropic medication that could have helped stabilize his mental illness. See id. at *15-16 (UCI treatment notes from July 2003 indicate that McKinney was "doing well coping while [at UCI] but does not know how he will cope at FSP because he believes he has to be on guard against unwarranted gassings"; UCI treatment notes from October 2003 indicate that McKinney believed he was "having problems with staff ... gassing him ... even if he does nothing"; March 2004 treatment notes indicate that McKinney refused to take medication because he needed to be alert because "they gas [him] so often"; UCI treatment notes from June 2004 indicate that McKinney felt "depressed most of the time" in part due to frequent gassings; April 3, 2005 letter from McKinney to DOC Health Services complained of frequent sprayings). Additionally, McKinney's record demonstrates that he was reclassified from S-3 status on at least two occasions during his treatment at UCI,
39

Case 3:04-cv-00917-TJC-JRK Document 475 Filed 02/02/11 Page 41 of 80 PageID 9163

once as an S-5 inmate in March 2003 and once as an S-4 inmate in July 2007. He was also transferred between FSP, the FSP infirmary, and UCI seventeen times during the five-year period between 2002 and 2007.
Dr. Bums, the plaintiffs' Correctional and Mental Health Expert and former Chief Psychiatrist for the Ohio Department of Corrections, also interviewed
McKinney and reviewed his file in 2006. Id. at *18. She testified that, based on
his record, he was "likely symptomatic" on occasions when he was sprayed with chemical agents but that DOC staff was unable to recognize his symptoms because of their similarity with typical disruptions on the prison wing, resulting in his assessment as having poor adjustment to the wing as opposed to suffering from any acute impairment. Id. Although the record testimony with respect to McKinney does not contain any unambiguous express assertion that he had decompensated at the time of any of these sprayings-such as the incompetency findings for purposes of disciplinary proceedings related to various use-of-force incidents contained in
Thomas's record, see id. at *1221-his record as a whole supports the district

21

The fact that Thomas was found not mentally competent at the time of at least two

chemical sprayings in 2000, as well as the fact that he was sprayed four days in a row despite

medical staff's notation that he "could be decompensating," see Thomas, 2009 WL 64616, at

*12-13, further bolster the district court's finding with respect to McKinney. Thomas's record

demonstrates that the non-spontaneous use-of-force policy was regularly applied notwithstanding

obvious indications that inmates were experiencing an exacerbation of their mental illnesses and,

as a result, could not understand or comply with officers' orders, making it more likely that the

policy was similarly applied to McKinney.

40

Case 3:04-cv-00917-TJC-JRK Document 475 Filed 02/02/11 Page 42 of 80 PageID 9164
court's factual findings. In sum, we conclude that the district court did not clearly
err in finding that McKinney was sprayed with chemical agents at times when he
had no capacity to comply with officers' orders because of his mental illness. See
id. at *27. Nor did the district court clearly err in finding that these sprayings
caused him "lasting psychological injuries."22 Id.
In light of these factual findings, we also readily conclude that the DOC's
repeated non-spontaneous use of chemical agents on McKinney constituted an
extreme deprivation sufficient to satisfy the objective prong. Although it is well-
established that the use of chemical agents on recalcitrant prisoners is not per se
unconstitutional, Danley, 540 F.3d at 1307 ("Pepper spray is an accepted non-lethal
means of controlling unruly inmates[,] ... [and a] short burst of pepper spray is not
disproportionate to the need to control an inmate who has failed to obey a jailer's
22 The district court's finding that the sprayings caused McKinney lasting psychological injuries is supported not only by the numerous times noted above that McKinney was reclassified above S-3 status and/or transferred to UCI immediately after one or more sprayings, but it is also supported by the general record evidence addressing the potential for chemical agents to cause psychological injury. See Thomas, 2009 WL 64616, at *4 (crediting Dr. Bums' testimony that the exposure to chemical agents may cause "feelings of intense helplessness, fear of dying, attempts at suicide and exacerbation of other symptoms of mental illness); at *8 (summarizing the CMA's 2003-2004 report stating that the inappropriate use of chemical agents on inmates in close management wings had resulted in the exacerbation of mental health symptoms, which in one instance led to an inmate's suicide). See also Danley, 540 F.3d at 1309 (internal quotations and citations omitted) (noting that in addition to the intense physical pain intended by its use, pepper spray (the most commonly used chemical agent by the DOC),"sometimes also causes disorientation, anxiety, and panic in the person sprayed") (internal citation and quotation omitted). See also supra n.8 and accompanying text.
41

Case 3:04-cv-00917-TJC-JRK Document 475 Filed 02/02/11 Page 43 of 80 PageID 9165
orders."); Soto v. Dickey, 744 F.2d 1260, 1270 (7th Cir. 1984) ("The Supreme Court has never held, nor have we or any other court of appeals, so far as we can detennine, that the use of tear gas or a chemical agent is a per se violation of the Eighth Amendment ...."); Spain v. Procunier, 600 F.2d 189, 196 (9th Cir. 1979) ("use of nondangerous quantities of [tear gas] in order to prevent a perceived future danger does not violate 'evolving standards of decency' or constitute an 'unnecessary and wanton infliction of pain"'), there are constitutional boundaries to its use. See Gates v. Collier, 501 F.2d 1291, 1304 (5th Cir. 1974) ("[T]here is a line where solitary confinement conditions become so severe that its use is converted from a viable prisoner disciplinary tool to cruel and unusual punishment."). The district court did not categorically condemn the DOC's nonspontaneous use-of-force policy. Rather, the court found that McKinney's welldocumented history of mental illness and psychotic episodes rendered him unable to comply at the times he was sprayed such that the policy was "unnecessary" and "without penological justification" in his specific case. This conclusion is in keeping with prior decisions of this court and other circuit courts of appeals, which have concluded that where chemical agents are used unnecessarily, without penological justification, or for the very purpose of punishment or hann, that use satisfies the Eighth Amendment's objective hann requirement. See Danley, 540
42

Case 3:04-cv-00917-TJC-JRK Document 475 Filed 02/02/11 Page 44 of 80 PageID 9166
F.3d at 1311 (holding that prolonged exposure to pepper spray due to a failure to properly decontaminate an inmate may form the basis of an Eighth Amendment claim); Iko v. Shreve, 535 F.3d 225, 239 (4th Cir. 2008) (use of additional bursts of pepper spray after inmate attempted to comply with officer's orders and which possibly contributed to inmate's asphyxiation and death sufficiently alleged objective component of excessive force claim); Soto, 744 F.2d at 1270 ("[I]t is a violation of the Eighth Amendment for prison officials to use mace or other chemical agents in quantities greater than necessary or for the sole purpose of punishment or the infliction of pain.").
McKinney was subjected to chemical sprayings pursuant to a DOC policy that does not require a corrections officer or his superiors to review an inmate's mental health records prior to authorizing the decision to use chemical agents on an inmate causing a disturbance in his cell. Thus, it is DOC policy that if an inmate has been classified as an S-3 inmate and lives in an FSP close-management wing, regardless of his mental health history, chemical agents are available for nonemergency use. However, at the same time the record establishes that mental illness is fluid and that an inmate's mental health status may deteriorate at any time, gradually or suddenly, causing him to "become confused, disorganized and disoriented" and "incapable of understanding or conforming to demands."
43

Case 3:04-cv-00917-TJC-JRK Document 475 Filed 02/02/11 Page 45 of 80 PageID 9167
Thomas, 2009 WL 64616, at *6. Furthermore, the record establishes that security staff struggle to differentiate between an inmate's willful noncompliance with prison rules and behavior that is a sign of acute impairment for which the person cannot be held entirely accountable. Id. at *9. In light of these realities, as well as the impossibility of constantly monitoring an inmate for the possible need to reclassify his mental status, relying solely on an inmate's S-3 status to determine whether the use of chemical agents is appropriate fails to take into consideration the fact that McKinney was no longer capable of conforming his conduct to prison regulations. "[I]f the inmate cannot understand the command and cannot comply with it, the force simply produces pain ...." Id. at *23. We agree with the district court that "if the DOC fails to account for an inmate's decompensation, with the result that he is gassed when he cannot control his actions due to his mental illness, then the force no longer has a necessary penological purpose and becomes brutality." Id. The DOC itself recognizes that the indiscriminate non-spontaneous use of chemical agents on decompensated inmates fails to advance its penological goals. Aside from emergency situations in which there is a threat of immediate harm to an inmate or others, the DOC does not permit the use of chemical agents on inmates with S-4, S-5, or S-6 status or those receiving treatment in inpatient settings like VCI (which houses some S-3 inmates).
44

Case 3:04-cv-00917-TJC-JRK Document 475 Filed 02/02/11 Page 46 of 80 PageID 9168
Additionally, we agree with the district court that the "lasting psychological injuries" suffered by McKinney as a result of his subjection to repeated chemical sprayings at FSP are sufficiently serious injuries to satisfy the objective harm requirement. McKinney need not have suffered lasting physical injury from the sprayings to subject DOC conditions to Eighth Amendment scrutiny. The case law establishes that "mental health needs are no less serious than physical needs" for purposes of the Eighth Amendment. Gates v. Cook, 376 F.3d 323, 332 (5th Cir. 2004). See Hope v. Pelzer, 536 U.S. 730, 738, 122 S. Ct. 2508, 2514-15 (2002) (highlighting "taunting" and "humiliation" as circumstances which contributed to finding that handcuffing petitioner to a hitching post after "[a]ny safety concerns had long since abated ... violated the basic concept underlying the Eighth Amendment, which is nothing less than the dignity of man") (internal quotation and citation omitted); Smith v. Aldingers, 999 F.2d 109, 109 (5th Cir. 1993) (reversing dismissal of Eighth Amendment claim because district court failed to consider whether purely psychological injury could constitute an Eighth Amendment injury); LaMarca v. Turner, 995 F.2d 1526, 1544 (lIth Cir. 1993) (affirming injunction ordering psychological counseling of rape victims to address unnecessary and wanton infliction of pain of failing to provide prisoners with postrape psychological counseling); Strickler v. Waters, 989 F.2d 1375, 1381 (4th Cir.
45

Case 3:04-cv-00917-TJC-JRK Document 475 Filed 02/02/11 Page 47 of 80 PageID 9169
1993} (explaining that serious physical or emotional injury may give rise to an Eighth Amendment violation); Northington v. Jackson, 973 F.2d 1518, 1524 (lOth Cir. 1992) (holding that psychological injury may constitute pain under the Eighth Amendment excessive force standard).
Accordingly, we hold that the policy and practice of spraying inmates with chemical agents, as applied to McKinney under the circumstances found here-i.e., when he was fully secured in his seven-by-nine-foot steel cell, when he was not presenting a threat of immediate harm to himself or others, and when he was unable to understand and comply with officers' orders due to his mental illness-are extreme deprivations violating the "broad and idealistic concepts of dignity, civilized standards, humanity and decency" embodied in the Eighth Amendment. Hope, 240 F.3d at 979 (citing Estelle v. Gamble, 429 U.S. 97, 102,97 S. Ct. 285, 290 (1976». McKinney has demonstrated that he is one such inmate and thus has satisfied the Eighth Amendment's objective harm requirement. We now tum to the question of whether McKinney also satisfied the Eighth Amendment's SUbjective wantonness requirement.
11. Deliberate Indifference In conditions-of-confinement cases, wantonness is established by proving that a defendant prison official was deliberately indifferent to a risk of serious harm
46

Case 3:04-cv-00917-TJC-JRK Document 475 Filed 02/02/11 Page 48 of 80 PageID 9170
to the plaintiff inmate. Farmer, 511 U.S. at 828, 114 S. Ct. at 1974 (quotation and citation omitted); Wilson, 501 U.S. at 303, 111 S. Ct. at 2327; LaMarca, 995 F.2d at 1535. In our circuit, to find deliberate indifference on the part of a prison official, a plaintiff inmate must show: (1) subjective knowledge of a risk of serious harm; (2) disregard of that risk; (3) by conduct that is more than gross negligence. Townsend v. Jefferson County, 601 F.3d 1152, 1158 (ll'h Cir. 2010); see also Chandler, 379 F.3d at 1290, n.21. That is, the evidence must demonstrate that "with knowledge of the infirm conditions, [the official] knowingly or recklessly declined to take actions that would have improved the conditions." LaMarca, 995 F.2d at 1537. A prison official's deliberate indifference is a question of fact which we review for clear error. See Farmer, 511 U.S. at 842, 114 S. Ct. at 1981; Goebert v. Lee County, 510 F.3d 1312, 1327 (lith Cir. 2007); Fed. R. Civ. P. 52(a). "Whether a prison official had the requisite knowledge of a substantial risk is ... subject to demonstration in the usual ways, including inference from circumstantial evidence, and a factfinder may conclude that a prison official knew of a substantial risk from the very fact that the risk was obvious." Farmer, 511 U.S. at 842, 114 S. Ct. at 1981 (internal citations omitted).
The district court found that the record demonstrated that "DOC officials acted with deliberate indifference to the severe risk of harm Michael McKinney
47

Case 3:04-cv-00917-TJC-JRK Document 475 Filed 02/02/11 Page 49 of 80 PageID 9171
faced when officers repeatedly sprayed him with chemical agents at FSP for behaviors caused by his mental illness." Thomas, 2009 WL 64616, at *27. We have already established for purposes of the Eighth Amendment's objective injury requirement that McKinney's individual record contains ample evidence to support the district court's finding that because of his mental illness McKinney was unable to understand and comply with officers' orders during some of the periods in which he was sprayed with chemical agents. Furthermore, our review of the district court's voluminous uncontested factual findings as they relate to the defendants' deliberate indifference does not leave us "with the definite and firm conviction that a mistake has been committed." Anderson, 470 U.S. at 573, 105 S. Ct. at 1511 (internal quotation and citation omitted). Accordingly, the defendants have failed to satisfy their burden of demonstrating the district court's clear error.
As to the defendants' subjective knowledge ofa risk of harm to McKinney, the record establishes both that the "frequent-flier" syndrome was well-recognized by DOC officials and staff and that it would have been obvious to DOC officials that McKinney was one such frequent-flier. See Thomas, 2009 WL 64616, at *6 ("The security and mental health staff who testified or gave statements were
48

Case 3:04-cv-00917-TJC-JRK Document 475 Filed 02/02/11 Page 50 of 80 PageID 9172

generally all familiar with this phenomena ....").23 McKinney's individual inmate record demonstrates that between 2001 and 2007, he was transferred to VCI ten times for ongoing treatment and to the FSP infirmary seven times for various
psychological emergencies. Id. at *15-17. On at least two such occasions he was
reclassified as an S-5 or S-4 inmate. McKinney's record also demonstrates that after stabilizing treatment at VCI, he struggled to readjust to life on his FSP wing, and often returned to VCI or the infirmary for further treatment soon thereafter.
The record also demonstrates that DOC officials had subjective knowledge that the use of chemical agents may cause psychological harm to inmates with mental illness, especially frequent-fliers like McKinney. Nurse Battles testified that for a period of time, the DOC generated a list of inmates awaiting transfer to VCI for whom the use of chemical agents was contraindicated, but due to a change of warden the policy was discontinued. Id. at *6. Dr. Nguyen testified that during her tenure she had instructed DOC medical staff to review the charts ofS-3 inmates to determine whether there were any mental health contraindications against the

23

Fonner FSP and VCI psychiatrist Dr. Infante, fonner Warden James Crosby,

fonner FSP and VCI medical director Tuong Nguyen, and fonner FSP Senior Nursing Supervisor

Tina Battles all testified to their knowledge of the issue of frequent-fliers at FSP. Thomas, 2009

WL 64616, at *6. FSP's current lead senior psychologist Peggy Watkins-Ferrell, also testified

that "on any given working day" one or two inmates are referred out of FSP for inpatient

treatment. Id. at *8. Richard Stalder, the defendants' correctional expert, "was also of the

opinion that the 'frequent flier' syndrome represented a possible breakdown in care that should

be addressed at higher levels." Id. at *7.

49

Case 3:04-cv-00917-TJC-JRK Document 475 Filed 02/02/11 Page 51 of 80 PageID 9173
use of chemical agents. Id. at *7. Fonner FSP psychiatrist Donald Gibbs testified that based on his experience of treating inmates at FSP in 2003 and 2004, the use of chemical agents on mentally ill inmates exacerbated their symptoms. Id. at *4. Additionally, as discussed above, DOC policy provides that the first response to disturbances such as banging and yelling at VCI is mental health intervention; the use of chemical agents to quell a non-emergency disturbance at VCI is not pennitted because of these inmates' psychological vulnerabilities. Id. at *5.
DOC recent policy refonns further demonstrate the DOC's subjective knowledge of the psychological hann chemical agents can cause frequent-fliers. vcrs new O-Donn houses 114 S-3 inmates (approximately 15% ofFSP's S-3 population) awaiting transfer from FSP to an inpatient facility and the new N-Donn provides transitional housing for recently stabilized inmates returning from VCI to FSP. Id. at * 10. Chemical agents are not pennitted as a response to nonemergency disturbances at O-Donn and may only be used at N-Donn if a speciallytrained crisis-intervention team deems it appropriate. Id.
McKinney's record, which demonstrated his frequent need for inpatient treatment and psychological screening due to a pattern of self-injurious behavior and suicidal ideations, put the DOC on notice that he was in a category of inmates whose mental health was "particularly fragile" and that "notwithstanding his S-3
50

Case 3:04-cv-00917-TJC-JRK Document 475 Filed 02/02/11 Page 52 of 80 PageID 9174
designation, he was especially susceptible to decompensating." Id. at *26.
Moreover, the record establishes that the named defendants also had subjective
knowledge ofa risk ofhann specific to McKinney.24 FSP's former duty warden,
George Sapp, testified that FSP officials meet daily to review the previous day's
use-of-force logs in order to know "what was transpiring on the wings at all time
and that force was being used appropriately." Additionally, the DOC's non-
spontaneous use-of-force policy mandates that FSP's warden or, in his absence,
duty warden authorize every non-spontaneous use of chemical agents. See Fla.
Admin. Code r. 33-602.210(17)(n)(2)(b) ("[T]he shift supervisor shall ... [c]ontact
the warden or, in his or her absence, the duty warden and request authorization to
utilize chemical agents."). Therefore, the named defendant, the Warden ofFSP,
would have subjective knowledge of the inmates on which chemical agents are
being used. Given the frequency with which McKinney was sprayed with chemical
24 The district court did not specifically link its deliberate indifference finding to the named defendants, the Warden ofFSP or the Secretary ofthe DOC. Our case law requires that plaintiff inmates prove the subjective deliberate indifference of the named defendants to prevail in their § 1983 lawsuits. Cook ex. reI. Tessier v. Sheriff of Monroe County. Fla., 402 F.3d 1092, 1115-16 (l1th Cir. 2005) ("Thus, to succeed on her § 1983 claim, Cook must establish that the Sheriff himself, as representative of Monroe County, was deliberately indifferent to the possibility of Tessier's suicide, since neither respondeat superior nor vicarious liability exists under § 1983."). However, the defendants have not challenged, either in the district court or on appeal, the deliberate indifference finding on this ground. Therefore, any such objection is deemed waived. United States v. Curtis, 380 F.3d 1308, 1310 (11th Cir. 2004) (citing the "long-standing rule in this circuit, as well as in the federal rules themselves, that issues not raised by a defendant in his initial brief on appeal are deemed waived").
51

Case 3:04-cv-00917-TJC-JRK Document 475 Filed 02/02/11 Page 53 of 80 PageID 9175
agents, his incredible disciplinary history (which included 320 disciplinary infractions by the time of trial), his regular transfers between VCI and FSP, and his repeated episodes of self-injurious behavior, his name would certainly have stood out to the warden.2s See Thomas, 2009 WL 64616, at *26 (concluding the same as to plaintiff Thomas).
Additionally, as discussed above, the record also contains evidence that the Florida Correctional Medical Authority ("CMA") issued 2003-2004 and 2005-2006 Annual Reports expressing significant concern that chemical agents were being inappropriately used on inmates in close management settings resulting in chemical burns and the exacerbation of mental health symptoms. The 2003-2004 Annual Report made the specific recommendation to the DOC that it adopt the confrontation avoidance techniques used by the Federal Bureau of Prisons, which include an evaluation by a "designated mental health professional" prior to the use of chemical agents. The CMA's 2003-2004 Report on the Health Care Delivery of DOC reiterated this recommendation. This evidence supports the inference that DOC top officials and policymakers, which would include the Secretary of the
25 Although the defendants have waived any challenge to the district court's failure to find the named defendants' subjective knowledge of a serious risk ofhann to McKinney, the FSP warden's direct authorization of all non-spontaneous uses of chemical agents on McKinney probably would be sufficient to demonstrate his subjective knowledge, and certainly would be sufficient to withstand any argument that the district court's finding was clearly erroneous.
52

Case 3:04-cv-00917-TJC-JRK Document 475 Filed 02/02/11 Page 54 of 80 PageID 9176
DOC (the DOC's highest official), had subjective knowledge of the risks associated with using chemical agents on S-3 inmates without regard to their mental health histories as well as a possible means of addressing such risks.26
The record also supports the district court's finding that the Secretary of the DOC and the Warden of FSP recklessly disregarded the risk of psychological harm to inmates like McKinney. Despite repeated notice from the CMA Reports of a risk of harm to inmates with mental illness, the DOC chose not to adopt their recommendation to take into consideration an inmate's mental health history, through a pre-use-of-force mental health consultation or some other means, prior to administering chemical agents. See Hope, 240 F.3d at 978-79 (relying on evidence that the Alabama DOC ignored a Department of Justice report on the constitutional infirmity of the use of the hitching post as a means of inmate discipline to support an inference that the DOC was aware of a substantial risk of harm and disregarded such risk). In light of the apparent feasibility of adopting some type of pre-force mental health consultation, as evidenced by the Federal Bureau of Prisons' use of
26 Although the defendants have also waived any challenge to the district court's failure to link its deliberate indifference finding to the Secretary of the DOC, this evidence would have been strong evidence to demonstrate his subjective knowledge of a serious risk of psychological harm to inmates like Michael McKinney. Although many of the use-of-force incidents in McKinney's records predated the CMA's reports and recommendations, there were ten non-spontaneous use-of-force incidents between the years 2005 and 2007 occurring after the 2003-2004 annual reports were released.
53

Case 3:04-cv-00917-TJC-JRK Document 475 Filed 02/02/11 Page 55 of 80 PageID 9177
such a procedure, and the CMA's efforts to highlight the seriousness of the problem of the improper use of chemical agents on mentally ill inmates, the DOC's refusal to modify its non-spontaneous use-of-force policy provides support for the district court's finding of more than mere or even gross negligence on the part of the DOC. See LaMarca, 995 F.2d at 1537 ("Mere knowledge of the infirm conditions persisting at [a prison] does not establish deliberate indifference. The plaintiffs must also demonstrate that, with knowledge of the infirm conditions, [the prison's superintendent] knowingly or recklessly declined to take actions that would have improved the conditions.").
The FSP Warden's reckless disregard of these same risks is also apparent in his continued authorization of the use of chemical agents in periods in which McKinney was sprayed repeatedly in short periods of time when his mental illness was most active.27 For example, chemical agents were authorized twice on a day in October 2003, only one day after McKinney had declared that he intended to hurt himself, and on the same day in which officers performed a cell extraction to search
his cell. Thomas, 2009 WL 64616, at *15. Despite the authorization of three uses
of force in the same day, one of which aimed at stopping McKinney from throwing
27 We note that "[t]hat the individuals now holding those offices may not be the same as those in office when this suit was commenced is immaterial for purposes ofthis appeal since the defendants were sued in their official, not their individual capacities, and it is only in their official capacities that they are constrained by the district court[.]" Gates, 501 F.2d at 1321.
54

Case 3:04-cv-00917-TJC-JRK Document 475 Filed 02/02/11 Page 56 of 80 PageID 9178
his own feces, the use of chemical agents were again authorized four days later. Id. This incident of force immediately preceded McKinney's two most harmful incidents of self-injurious behavior, head banging and diving head-first off a flight of stairs, both of which resulted in serious head injuries. Id.
Jeremiah Thomas's inmate record provides additional circumstantial evidence of the FSP Warden's deliberate indifference to a serious risk of psychological harm to frequent-fliers like McKinney. The record demonstrates that the authorization of the use of chemical agents without any regard for their prior use or their potential to cause serious harm to an inmate's mental health status was likely commonplace at FSP during the period of time in which McKinney was subjected to repeated uses of force. Like McKinney, Thomas attempted suicide and declared a psychological emergency immediately prior to the authorization of
repeated uses of chemical agents in a short period of time. Id. at *13. Thomas was
subjected to chemical agents on six of seven days in one week despite mental health and medical staff notes that he had not taken his medication and may be decompensating.28 Id. It took UCI psychologists six months to stabilize him
28 Although McKinney only suffered serious psychological injury from the use of chemical agents, Thomas's record also demonstrates that DOC officials were aware that the repeated use of chemical agents on inmates with mental illness risked serious physical injury as well. During the week in which Thomas was subjected to six chemical sprayings, he consistently refused to take a decontaminating shower after each spraying. When he was evaluated by a nurse after two consecutive days of sprayings, she "found his skin was blistering and broken from
55

Case 3:04-cv-00917-TJC-JRK Document 475 Filed 02/02/11 Page 57 of 80 PageID 9179
following this week of repeated use-of-force incidents. Id.
In sum, we cannot conclude that the district court was clearly erroneous in
finding that the record demonstrates that "DOC officials turned a blind eye" to
McKinney's mental health needs and the obvious danger that the use of chemical
agents presented to his psychological well-being. Id. at *27. Turning a blind eye
to such obvious danger provides ample support for the finding of the requisite
recklessness. Even though there are ambiguities present in McKinney's
record-his mental illness was often characterized by anger, maladjustment, and
violence as opposed to psychosis, and many treating professionals found that
McKinney suffered no acute impairment-an examination of his entire record
demonstrates that the district court did not commit clear error in finding the
defendants' deliberate indifference. Concluding that McKinney satisfied both the
objective and subjective prongs of his Eighth Amendment conditions-of-
confinement claim at trial,29 we affirm the district court's declaratory judgment in
chemical bums, he smelled of urine and was acting delusional." Thomas, 2009 WL 64616, at *25. Despite her observations, Thomas was subjected to chemical agents the following two days and suffered first to third degree bums on his back, abdomen, arms, and buttocks. Id. His bum injuries were so severe that DOC staff considered sending him to a special bum treatment
facility. M.. The record demonstrates that McKinney also frequently refused decontaminating
showers, and therefore was at risk for serious physical injury as well. 29 Additionally, to prevail on an Eighth Amendment claim brought pursuant to §
1983, a plaintiff inmate must also show a causal connection between the constitutional violation and his injuries. Marsh v. Butler County. Ala., 268 F.3d 1014, 1028 (11th Cir. 2001) (en banc). As to plaintiff McKinney, the defendants raise no challenge with respect to the requirement that
56

Case 3:04-cv-00917-TJC-JRK Document 475 Filed 02/02/11 Page 58 of 80 PageID 9180
his favor and tum to the defendants' challenges to the district court's permanent
injunction.
c. Injunctive Relief
After finding that the repeated use of chemic~l agents on Thomas and
McKinney violated the Eighth Amendment, the district court concluded that they
were entitled to injunctive relief. Thomas, 2009 WL 64616, at *28-30. Thereafter,
the district court invited the defendants to confer with the plaintiffs to reach an
agreement on the injunction's proposed tenns and/or tO,submit their own proposal
for an injunction. The defendants refused to do so, and the district court was
forced to enter its final permanent injunction against the defendants without their
input as to what would constitute the most narrowly drawn relief remedying the
§ 1983 plaintiffs demonstrate a causal connection between the alleged constitutional violation and their injury. Their only causation argument raised on appeal is that Thomas's bums were not caused by the DOC but instead by his refusal to agree to a decontaminating shower. Thus, the defendants have waived any such challenge, and we need not address the probability that the district court did make either express or implied findings of causation.
In any event, McKinney has satisfied his burden as to causation. A §1983 plaintiff may demonstrate causation either by establishing that the named defendant was "personally involved in the acts that resulted in the constitutional deprivation," LaMarca, 995 F.2d at 1538 (internal quotation and citation omitted), or by showing that the defendant instituted a "custom or policy that result[ed] in deliberate indifference to constitutional rights," Goebert, 510 F.3d at 1331 (internal quotation and citation omitted). "[S]upervisory liability for deliberate indifference based on the implementation of a facially constitutional policy requires the plaintiff to show that the defendant had actual or constructive notice ofa flagrant, persistent pattern of violations." Id. at 1332. Both the FSP Warden's direct authorization of all uses of force and the routine application of the DOC's non-spontaneous use-of-force policy without regard to an inmate's mental health status satisfy § 1983 's causation requirement.
57

Case 3:04-cv-00917-TJC-JRK Document 475 Filed 02/02/11 Page 59 of 80 PageID 9181
identified harm. The defendants now challenge the district court's injunction. To obtain a permanent injunction, a party must show: (1) that he has
prevailed in establishing the violation of the right asserted in his complaint; (2) there is no adequate remedy at law for the violation of this right; (3) irreparable harm will result if the court does not order injunctive relief; and (4) if issued, the injunction would not be adverse to the public interest. K.H Outdoor. LLC v. City of Trussville, 458 F.3d 1261, 1268 (lIth Cir. 2006); Alabama v. U.S. Army Corps of Eng'rs, 424 F.3d 1117, 1128 (11 th Cir. 2005). In addition to ensuring that injunctive relief was necessary under this standard, we must also ensure that the scope of the awarded relief does not exceed the identified harm. Califano v. Yamasaki, 442 U.S. 682, 702, 99 S. Ct. 2545, 2558 (1979) ("[T]he scope of injunctive relief is dictated by the extent of the violation established ...."); LaMarca, 995 F.2d at 1543 ("While district courts have broad discretion to fashion equitable relief, such relief must target the existing wrong."). In the context of prison litigation, we must also consider the requirements of the Prison Litigation Reform Act, 18 U.S.C. § 3626 ("PLRA"), which "establishes standards for the entry and termination of prospective relief in civil actions challenging prison conditions," Miller v. French, 530 U.S. 329, 331, 120 S. Ct. 2246,2250 (2000). The PLRA mandates that injunctive relief is only appropriate where it is "narrowly
58

Case 3:04-cv-00917-TJC-JRK Document 475 Filed 02/02/11 Page 60 of 80 PageID 9182
drawn, extends no further than necessary to correct the violation of the Federal right, and is the least intrusive means necessary to correct the violation of the Federal right." 18 U.S.C. § 3626(a){l)(A).
The defendants make several arguments on appeal to the effect that an injunction is not necessary. In addition, the defendants make two arguments that the injunction is unworkable, a conclusory argument that the injunction goes beyond the identified violation, and a conc1usory argument that the injunction is overly intrusive.
1. Necessity of Injunctive Relief We first address the defendants' arguments challenging the district court's conclusion that injunctive reliefwas necessary to remedy the identified constitutional harm. Four challenges to the necessity of injunctive relief merit our discussion. The defendants argue that: (1) McKinney is currently incarcerated at UCI, where he is not subject to the DOC's non-spontaneous use-of-force policy, and, therefore, the injunction targets speculative as opposed to imminent irreparable injury; (2) McKinney is unable to establish a "current and ongoing" violation of his constitutional rights under the PLRA; (3) recent reforms have obviated any risk of future injury; and (4) McKinney has an adequate remedy at law to remedy any further constitutional violation.
59

Case 3:04-cv-00917-TJC-JRK Document 475 Filed 02/02/11 Page 61 of 80 PageID 9183
First, the defendants argue that because McKinney has been incarcerated at UCI since 2007, the injunction only regulates his future exposure to chemical agents in the event he is returned to FSP, the likelihood of which is far too speculative and remote to constitute a serious risk of continuing irreparable injury. Although the irreparable-injury requirement cannot be met absent a real or immediate threat that the plaintiff will be wronged again, City of Los Angeles v. Lyons,461 U.S. 95, Ill, 103 S.Ct.1660, 1670 (1983},itisalsowell-established that injunctive relief is appropriate "to prevent a substantial risk of serious injury from ripening into actual harm," Farmer, 511 U.S. at 845, 114 S. Ct. at 1983. In such circumstances, the irreparable-injury requirement may be satisfied by demonstrating a history of past misconduct, which gives rise to an inference that future injury is imminent. Kapps v. Wing, 404 F.3d 105, 123 (2d Cir. 2005) ("[W]here a history of legal violations is before the district court, that court has significant discretion to conclude that future violations of the same kind are likely."); Thomas v. County of L.A., 978 F.2d 504, 508 (9th Cir. 1992) ("A state law enforcement agency may be enjoined from committing constitutional violations where there is proof that officers within the agency have engaged in a persistent pattern ofmisconduct."); Ramos v. Lamm, 639 F.2d 559, 572 (lOth Cir. 1980) (an inmate "does not need to wait until he is actually assaulted before obtaining
60

Case 3:04-cv-00917-TJC-JRK Document 475 Filed 02/02/11 Page 62 of 80 PageID 9184
relief'). Thus, the fact that the underlying injunction only applies in the event that McKinney is transferred back to FSP, in itself, does not eliminate his need for protection from irreparable future harm. See Farmer, 511 U.S. at 850-51, 114 S. Ct. at 1986 (concluding that the fact that the petitioner had been transferred from an administrative segregation unit to the general prison population of a mediumsecurity prison did not conclusively establish that there was no present threat of future injury so as to moot injunctive relief).
Additionally, despite the asserted absence of any present intention on the part of the defendants to return McKinney to FSP, the defendants stipulated at trial and have conceded on appeal that McKinney's return is indeed possible. In fact, the record establishes that the very purpose of McKinney's inpatient treatment at UCI is his stabilization and ultimate return to a non-therapeutic prison setting. See Thomas, 2009 WL 64616, at *6 (making the uncontested factual finding that the purpose ofUCl's inpatient treatment of decompensated inmates is to stabilize them
to S-3 status in order to transfer them back to their prior facility); id. at *14 (noting
that the DOC's Consent to Inpatient Mental Health Care form (which was signed by McKinney on various occasions advises inmates that if they are transferred to an inpatient treatment center, "the length of stay in inpatient care will depend upon how quickly [their] condition improves, but is usually no longer than four (4)
61

Case 3:04-cv-00917-TJC-JRK Document 475 Filed 02/02/11 Page 63 of 80 PageID 9185
weeks in a Crisis Stabilization Unit, three months in a Transitional Care Unit, or
four (4) days in a permanent institution infirmary").3o Furthermore, as the district
court noted, "during this litigation, just days after DOC announced that it had no
present intention of returning certain plaintiff inmates back to FSP, the DOC
transferred one of them back to FSP." Id. at *11. Notably, but for this litigation
and the defendants' expert Dr. Hall's review of McKinney's inmate file in
preparation for trial, which led to his most recent transfer to VCI, it is likely that
McKinney would remain incarcerated at FSP today.
In light of the record, which chronicles the many years in which McKinney
experienced frequent psychological emergencies, cycles of decompensation and
stabilization, and simultaneous sprayings with chemical agents, and the DOC's
undisputed policy to return stabilized inmates to their original institution, the
likelihood that McKinney will be returned to FSP and again subjected to the
30 There are plainly exceptions to this generalization, as evidenced by plaintiff Thomas's lengthy stay at UCI following a week in which he was sprayed with chemical agents every day of the week save one, resulting in second and third-degree bums. See Thomas, 2009
WL 64616, at *13. Dr. Infante, the UCI psychiatrist who treated Thomas following these
incidents, testified that "it seemed like forever" before she was able to stabilize him, and Thomas spent over six months in a crisis stabilization unit and almost nine months at UCI before he was returned to FSP. Id. It was only two days after his return that Thomas was again sprayed with chemical agents for causing a disturbance on his wing, and only one week until he was transferred back to UCI for treatment. Id. However, DOC policy establishes that lengthy UCI stays are not the norm, and Thomas's experience illustrates that even following months of treatment and a difficult stabilization process, the goal is for all inmates' ultimate return to their prior institutions.
62

Case 3:04-cv-00917-TJC-JRK Document 475 Filed 02/02/11 Page 64 of 80 PageID 9186
DOC's non-spontaneous use-of-force policy is neither speculative nor unlikely. Additionally, the DOC's historical treatment of McKinney gives rise to an inference of future irreparable injury justifying the entry of injunctive relief.
Second, the defendants make the related argument that McKinney's incarceration at UCI prevents him from establishing a "current and ongoing" violation under the PLRA. See 18 U.S.C. § 3626(b)(3) (providing that "[p]rospective relief shall not terminate if the court makes written findings based on the record that prospective relief remains necessary to correct a current and ongoing violation of the Federal right"). Although the defendants recognize that this provision of the PLRA governs termination proceedings (whereas we are reviewing the district court's initial entry of injunctive relief), they argue that the "current and ongoing" violation requirement should inform our inquiry here.
The defendants' only authority for this proposition is a statement made in dicta by the Ninth Circuit that "the standard for termination does not differ materially from the standard to be applied in deciding whether prospective relief is proper." Hallett v. Morgan, 296 F.3d 732, 743 (9th Cir. 2002). We are not persuaded that the Ninth Circuit's comment is apposite to this case; that comment was made in the different context of the court's review ofa grant ofa motion to terminate injunctive relief. Our circuit has previously recognized that the "current
63

Case 3:04-cv-00917-TJC-JRK Document 475 Filed 02/02/11 Page 65 of 80 PageID 9187
and ongoing" requirement is distinct from the standard governing the initial entry of injunctive relief. See Cason v. Seckinger, 231 F.3d 777, 784 (11 th Cir. 2000) ("[A] 'current and ongoing violation' is a violation that exists at the time the district court conducts the § 3626(b)(3) inquiry, and not a potential future violation."). Additionally, there is no indication in the PLRA, its legislative history, or the case law to suggest that the "current and ongoing" requirement was intended by Congress to amend the well-established law that injunctive relief is available in the first instance "to prevent a substantial risk of serious injury from ripening into actual harm," i.e., to prevent future harm. Farmer, 511 U.S. at 845, 114 S. Ct. at 1983. The PLRA's need-narrowness-intrusiveness limitation governs the initial entry of an injunctive reliefin prison litigation cases. 18 U.S.C. § 3626(a)(I)(A). Whether there is a "current and ongoing" constitutional violation sufficient to avoid tennination of the current injunction is a matter to be considered upon motion by either party in a termination proceeding, at least two years after the district court's initial award of relief. 18 U.S.C. § 3626(b)(3).
Third, the defendants contend that the DOC's recent refonns have rendered the awarded injunctive relief unnecessary. The defendants point to the additional training in assessing the behavior of inmates that is now provided to corrections officers working in close-management wings, the increase in mental health staff,
64

Case 3:04-cv-00917-TJC-JRK Document 475 Filed 02/02/11 Page 66 of 80 PageID 9188

and the DOC's discontinuance of the most harmful chemical agent previously employed at FSP. We have recognized that "[s]ubsequent events, such as improvements in the allegedly infirm conditions of confinement, while potentially relevant, are not determinative" of whether injunctive relief is no longer warranted. LaMarca, 995 F.2d at 1541. This is especially true "[w]hen a defendant corrects the alleged infirmity after suit has been filed," id., "for practices may be reinstated as swiftly as they were suspended,"J1 Gates, 501 F.2d at 1321. The defendants filed this lawsuit in September of 2004, and many of the relied-upon reforms were enacted as recently as July 31,2008.32 See Thomas, 2009 WL 64616, at *28 n.51. Thus, to rely on intervening events occurring after suit has been filed the defendants must satisfy the heavy burden of establishing that these such events "have completely and irrevocably eradicated the effects of the alleged violations." LaMarca, 995 F.2d at 1542 (internal quotation and citation omitted).
Although the DOC's recent reforms may represent affirmative responses to

31

The district court noted that the record establishes that multiple policy refonns

had been instated and subsequently discontinued by the DOC in the past decade. See Thomas,

2009 WL 64616, at *29. The DOC instated a universal policy that all uses of force be

videotaped, only to subsequently provide a large exception for FSP. Id. The DOC also

completely discontinued its prior practice of providing medical staff with a list of inmates at risk

of decompensation from exposure to chemical agents. Id.

32 Although some refonns, such as the Osterback training intended to teach corrections officers to identify signs of acute mental illness, may have been in effect prior to suit, the defendants have not proffered any evidence to that effect. See Thomas, 2009 WL 64616, at *9 n.28.

65

Case 3:04-cv-00917-TJC-JRK Document 475 Filed 02/02/11 Page 67 of 80 PageID 9189
recognized deficiencies in its ability to address the needs of its growing mentally ill inmate population, see Thomas, 2009 WL 64616, at *9-11, the defendants have not established that they have eradicated the effects of the constitutional violations found by the district court. Indeed, there has been no substantial change to the crucial aspect of the non-spontaneous use-of-force policy that led to the constitutional deficiency found by the district court. See Fla. Admin. Code Ann. r. 33-602.210(17)(n), (0). The policy still applies to all S-3 inmates, regardless of their mental health history. Nor has the DOC adopted the recommendations of the Florida Correctional Medical Authority to instate a pre-use-of-force mental-health evaluation for S-3 inmates. See Thomas, 2009 WL 64616, at *8. Also, the record calls into question whether the Osterback training has had any success in training corrections officers to differentiate symptoms of mental illness from pure recalcitrance. See id. at *9 & n.53 (summarizing testimony of Sergeant Keith Musselman, a correction officer receiving the Osterback training, who admitted to being unable to distinguish between recalcitrance and acute signs of mental illness, even after receiving the training). And Dr. Burns testified specifically that security staff would be unlikely to view McKinney's behavior as a symptom of acute mental illness because of his reputation of being "bad and disruptive." Id. at *26. Additionally, as the district court pointed out, the addition of transitional dorms for
66

Case 3:04-cv-00917-TJC-JRK Document 475 Filed 02/02/11 Page 68 of 80 PageID 9190
"frequent-flier" inmates transferred between FSP and UCI still leaves to the discretion of security staff monitoring the N-Dorm, which houses newly returned inmates to FSP, whether to use chemical agents or call mental health for consultation. Id. at *29. Furthermore, no recent reform addresses the lack of access of any corrections staff, whether trained in crisis intervention or not, to an inmate's mental health records. Id.
In light of the DOC's history of constitutional violations and its failure to give "any express assurance" that McKinney will not be exposed to the use of chemical agents merely because he is exhibiting symptoms of his mental illness in the future, these reforms are insufficient to eliminate the need for injunctive relief. See Offner v. Shell's City, Inc., 376 F.2d 574, 576 (5th Cir. 1967) ("In view of such past history and the failure of Shell's to give any express assurance that Offner will not be deprived of the services and facilities of the restaurant in the future, we cannot say that the case is moot."). Thus, the district court did not abuse its discretion in determining that the defendants failed to demonstrate that the DOC "would not return to its former, unconstitutionally deficient state." See LaMarca, 995 F.2d at 1541 ("[A] court may nevertheless grant injunctive relief unless the defendant shows that absent an injunction, the institution would not return to its former, unconstitutionally deficient state.").
67

Case 3:04-cv-00917-TJC-JRK Document 475 Filed 02/02/11 Page 69 of 80 PageID 9191
Nor are we persuaded by the defendants' final argument that the injunction is unnecessary because McKinney already has an adequate remedy at law to address the violation of his rights. See U.S. Army Corps of Eng'rs, 424 F.3d at 1128. The plaintiffs already settled their damages claims against the individual officers utilizing chemical agents prior to trial. The underlying injunctive relief is designed to remedy not individual wrongdoing on the part of an officer but McKinney's continued exposure to the DOC's non-spontaneous use-of-force policy as a condition of his confinement at FSP. No remedy at law will provide protection for McKinney from this unconstitutional condition of confinement in the future, nor will any monetary relief protect against future irreparable injury. The defendants' suggestion that the plaintiffs wait until a future violation arises would result in unnecessary and costly duplicative litigation. In sum, the district court did not abuse its discretion in concluding that injunctive relief was warranted and necessary to remedy the identified violation of McKinney's Eighth Amendment rights.
ii. Workability, Scope, and Intrusiveness The district court's permanent injunction reads as follows: In the event that plaintiffs Jeremiah Thomas or Michael McKinney are placed in the Florida State Prison (FSP) Close Management (eM) wing, defendants Walter McNeil, as Secretary of the Florida Department of Corrections, and Randall Bryant, as Warden of the
68

Case 3:04-cv-00917-TJC-JRK Document 475 Filed 02/02/11 Page 70 of 80 PageID 9192
Florida State Prison, in their official capacities, are enjoined from allowing the nonspontaneous application of chemical agents to plaintiffs Thomas or McKinney without first consulting with DOC's trained mental health staff so that a mental health professional can determine whether the application of the chemical agents is dangerous to the inmate's wellbeing, likely to exacerbate the current crisis or whether, on account of mental illness, the inmate is currently unable to conform his conduct to comply with the directives being given to him by correctional staff. Once contacted, the mental health professional will use his or her professional judgment to determine whether the non-spontaneous use of chemical agents is contraindicated for that inmate at that time (similar to the prior consultations which now occur with medical staff before non-spontaneous application of chemical agents is permitted). If, after consultation, the mental health professional deems the use of chemical agents to be contraindicated, chemical agents may not be employed at that time.
Thomas, 2009 WL 605306, at *2. The defendants make two specific arguments
that this injunction is unworkable and then make two conclusory arguments with
respect to the scope and intrusiveness of the injunction. We first address their two
specific arguments: that the injunction deprives the DOC of any means to "stop an
undisputed danger to the prison and its employees" and mandates a "cell front"
consultation that will blur the line between mental health analysis and security
measures to the detriment of McKinney. These challenges to the workability of the
district court's injunction are based on significantly mistaken premises.
First, contrary to the defendants' bald assertion that the injunction leaves
them with no constitutionally permissible way to stop a disturbance endangering an
officer or inmate, the injunction does no such thing. If there is an immediate
69

Case 3:04-cv-00917-TJC-JRK Document 475 Filed 02/02/11 Page 71 of 80 PageID 9193
danger, the injunction has no effect at all. The injunction addresses only nonemergency situations and only the DOC's non-spontaneous use-of-force policy. Even in such non-emergency situations-by definition allowing for time for the mental health consultation-the injunction leaves the ultimate decision as to the non-spontaneous use of chemical agents to the discretion of DOC personnel. The injunction merely requires participation of a mental health professional in that decision.
Second, the defendants assume that the injunction mandates cell-front mental health evaluations. This claim is puzzling, in light of the district court's express statement in its order awarding injunctive relief that the decision whether or not to use a cell-front procedure is left to the discretion of the DOC. See id. at *2 n.4 ("This required prior consultation with mental health staff mayor may not lead to the mental health professional going cell front to speak to the inmate. This is left to the judgment of the mental health professional and security staff in the given situation.").
Also related to the workability of the injunction is the defendants' assertion throughout their briefs that the non-spontaneous use of chemical agents on inmates is the least harmful alternative available to the defendants to respond to a prison disturbance. We also reject this assertion. The defendants compare the use of
70

Case 3:04-cv-00917-TJC-JRK Document 475 Filed 02/02/11 Page 72 of 80 PageID 9194
chemical agents to the allegedly much more dangerous use of physical cell extractions, which have resulted in inmate death in the past. In doing so, however, The defendants fail to recognize that there are less hannful means of administering chemical agents. As previously noted, the CMA has repeatedly recommended the inclusion of a pre-use-of-force consultation with mental health professionals. See Thomas, 2009 WL 64616, at *8. The Federal Bureau of Prisons has already adopted such a policy. See id. UCI functions without the routine use of chemical agents as a means of enforcing prison discipline; instead, mental health staff intervenes, using a technique similar to the district court's injunction. Id. at *5. Moreover, the VCI experience indicates that the cooperation between mental health and security staff occurs without implicating the defendants' stated concern that inmates will confuse doctors with corrections staff, creating an environment of
distrust. Id. at *10.
Having rejected the defendants' specific challenges to the workability of the injunction, we tum next to their conclusory arguments that the injunction extends further than necessary to correct the violation and is overly intrusive. The defendants do not articulate any particular aspect of the injunction that they claim extends beyond the violation found by the district court or is overly intrusive. It is of course true that the case law has long established that the scope of an injunction
71

Case 3:04-cv-00917-TJC-JRK Document 475 Filed 02/02/11 Page 73 of 80 PageID 9195

should not exceed the identified violation. See Califano, 442 U.S. at 702,99 S. Ct. at 2558; LaMarca, 995 F.2d at 1543. It is also true that the PLRA only permits the entry of injunctive relief that "is narrowly drawn, extends no further than necessary to correct the violation of the Federal right, and is the least intrusive means necessary to correct the violation of the Federal right." 18 U.S.C. § 3626(a)(l)(A). The district court was keenly aware of these requirements and seemingly has fashioned a narrow injunction targeting the violation of McKinney's constitutional
rights in a most non-intrusive manner. See Thomas, 2009 WL 605306, at *1. In
light of the defendants' failure to articulate any specific deficiency in this regard, and in light of our observations below, we cannot conclude that the district court abused its discretion in fashioning the injunctive relief in this case.33

33

Especially in light of the defendants' failure to assist the district court in

fashioning the equitable relief in this case, we hold that all arguments relating to the underlying

injunction not raised specifically by the defendants on appeal are deemed abandoned. For

example, the defendants do not specifically argue that the district court erred by not making the

required particularized findings that the proposed injunction satisfies the PLRA's need-

narrowness-intrusiveness requirement. See Johnson v. Breeden, 280 F.3d 1308, 1326 (llth Cir.

2002) (reading § 3626(a)(1)(A) of the PLRA as requiring a district court to "discuss [the need-

narrowness-intrusiveness] factors and enter findings that are as specific to the case as the

circumstances permit"); Oluwa v. Gomez, 133 F.3d 1237, 1239 (9th Cir. 1998) ("[B]efore

granting prospective injunctive relief, the trial court must make the findings mandated by the

PLRA."). But see Gates, 376 F.3d at 336 n.8 (holding that § 3626(a)(I)(A), unlike § 3262(b)(3),

does not require such written findings). Because this issue is abandoned, we need not decide

whether the district court's order satisfied our circuit's interpretation of § 3626(a)(1 )(A).

In any event, the district court was clearly sensitive to the necessity to make the need-

narrowness-intrusiveness findings. The court cited § 3626(a)(I)(A) and quoted its relevant

language. The court lamented the defendants' refusal to assist the court with proposals for the

injunction, noting that DOC officials would be in the best position to suggest the least intrusive

means of remedying the constitutional violation. Then the court acknowledged that it

72

Case 3:04-cv-00917-TJC-JRK Document 475 Filed 02/02/11 Page 74 of 80 PageID 9196
We first reject the defendants' conclusory argument that the district court's injunction extends beyond the identified constitutional violation. To the contrary, we conclude that its scope is exceedingly narrow. The district court held that the DOC violated the constitutional rights of only two inmates, and the injunction now, due to Thomas's death, governs the DOC's treatment of only one inmate out of thousands housed at FSP. The injunction also only targets the narrow constitutional violation identified by the district court. The district court did not hold that it is categorically unconstitutional to administer chemical agents on FSP inmates with diagnoses of serious mental illness. Nor is it categorically unconstitutional to administer chemical agents on FSP inmates with a history of transfers between FSP and UCI. Rather, it is only the repeated spraying of inmates with such profuse and pathological records of psychological distress-at times in that they were exhibiting undeniable symptoms of their mental illnesses rendering them unable to understand and comply with officers' orders-that violated the Eighth Amendment. Accordingly, the district court's injunction does not prohibit
nevertheless had a duty to fashion appropriate injunctive relief, obviously with reference to the needs-narrowness-intrusiveness requirement just quoted. Moreover, as indicated in the text below, the district court's order demonstrates that it plainly strove to satisfy those requirements in fashioning the injunctive relief awarded McKinney. Had the defendants objected in the district court to a failure to expressly articulate the need-narrowness-intrusiveness findings or argued that such express findings were required, it is clear from the record that the district court would have made these findings.
73

Case 3:04-cv-00917-TJC-JRK Document 475 Filed 02/02/11 Page 75 of 80 PageID 9197
all non-spontaneous use of chemical agents on McKinney but merely requires that the DOC's trained mental health staff evaluate his psychological state prior to authorizing such force.
Moreover, the district court refrained from entering any system-wide relief protecting a broader class of inmates despite the CMA's recommendation that the DOC adopt some form of mental health consultation prior to a use of nonspontaneous force on all S-3 inmates. Compare Gomez v. Vernon, 255 F.3d 1118, 1130 (9th Cir. 2001) ("The district court properly limited its injunction to a combination of prospective and retrospective relief granted to just six inmates, denying class-wide injunctive relief.") with Lewis v. Casey, 518 U.S. 343,358-59, 118 S. Ct. 2174, 2183-84 (1996) (holding that system-wide relief was inappropriately tailored to protect against violations of one inmate's rights). In this regard, the injunction appropriately balances respect for the DOC's administration of its own affairs with the need to ensure that McKinney is not further subjected to the DOC's non-spontaneous use-of-force policy without regard for his mental health history or current mental state. In sum, we conclude that in addition to being closely tethered to the identified harm, the district court plainly adhered to the PLRA's requirements that injunctive reliefbe "narrowly drawn" and extend "no further than necessary" to correct the violation of a constitutional right. 18 U.S.C.
74

Case 3:04-cv-00917-TJC-JRK Document 475 Filed 02/02/11 Page 76 of 80 PageID 9198
§3626(a)( 1)(A). We also reject the defendants' conclusory argument that the injunction is
overly intrusive. Our review of the injunction's terms demonstrates that its terms are most non-intrusive and thus satisfy the PLRA's final requirement. The injunction leaves to the complete discretion of the DOC both how to conduct the required pre-use-of-force mental health consultation and whether the nonspontaneous use of chemical agents is ultimately appropriate. To ensure that the injunction does not excessively impede upon the DOC's internal administration, the district court borrowed language from the DOC's current policy requiring a medical consultation prior to the use of non-spontaneous force and an existing DOC regulation entitled "Use of Force with Mentally Disordered Inmates." Fla. Admin. Code Ann. r. 33-404.107(1). This regulation provides that in nonemergency (that is, "non-spontaneous") situations, force may be used on "those inmates with a diagnosed mental illness only as a last resort" except where "the use of force is less likely to result in physical injury to the inmate and staff.,,34 Id. In emergency situations in which there is an "imminent threat of bodily harm to the inmate or others," force may be used on inmates with mental illness, although
34 As the district court noted, the parties did not put on any evidence as to how this policy is currently implemented. Thomas, 2009 WL 64616, at *2 n.9.
75

Case 3:04-cv-00917-TJC-JRK Document 475 Filed 02/02/11 Page 77 of 80 PageID 9199
"when time and circumstances permit, medical and mental health care staff shall be consulted to assess if the force to be used is dangerous to that inmate's well-being, or likely to exacerbate the current crisis." Id. Additionally, the DOC already requires a post-use-of-force evaluation. See Fla. Admin. Code Ann. r. 33-602.210(17)(0)(5) ("Mental health staff shall evaluate the inmate not later than the next working day, to determine whether a higher level of mental health care (isolation management, transitional or crisis stabilization) is indicated.").
Furthermore, multiple experts, including Drs. Infante and Burns, as well as the former warden of FSP, Ronald McAndrew, all testified to the feasibility of a pre-use-of-force mental health consultation. And according to McAndrew the number of uses of chemical agents actually dropped dramatically during his tenure as a result of this intervention. Chase Riveland, the plaintiffs' correctional systems expert, also testified that many state prison systems-in addition to the Federal Bureau of Prisons-already require mental health intervention before chemical agents are used.
Finally, as the district court pointed out in its order, the injunction will require little to no additional expenditures on the part of the DOC, as it already employs a large number of mental health professionals on the close-management wings of FSP who could be available to assist in evaluating McKinney. Nor does
76

Case 3:04-cv-00917-TJC-JRK Document 475 Filed 02/02/11 Page 78 of 80 PageID 9200

the injunction require onerous continuous supervision by the court or judicial interference in running FSP. Cf. Lewis, 518 U.S. at 362, 116 S. Ct. at 2185 (vacating district court's injunction that was "inordinately-indeed, wildly-intrusive" because it micro-managed the minutiae of prison operations); LaMarca, 995 F.2d at 1543 (vacating injunction that detailed the methods by which the defendants must effectuate their policies of disciplining guards because it unnecessarily intruded upon the prison's operations). This injunction merely requires that the DOC post a notice of the injunction on McKinney's cell door, notify the district court and opposing counsel when McKinney is returned to FSP and of any non-spontaneous use-of-force on McKinney, and videotape all such incidents, as is already required under DOC policy. See Fla. Admin. Code Ann. r. 33-602.210(5)(b) ("The administration of chemical agents on an inmate creating a disturbance in his or her cell when the officer is attempting to resolve the situation without extracting the inmate from the cell will also be video recorded.").35 Far from abusing its discretion, the district court apparently went to great efforts to accommodate and complement the DOC's current regulatory structure despite the DOC's unwillingness to assist the court in fashioning the most appropriate relief.

3S

There is one exception to this policy: videotaping is not required if an inmate

stops his disruptive behavior at the sight of the video camera but then resumes it once the

videotaping officers leave, a process referred to as "gaming" the system. Fla. Admin. Code Ann.

r. 33-602.21 O(5)(b)(2).

77

Case 3:04-cv-00917-TJC-JRK Document 475 Filed 02/02/11 Page 79 of 80 PageID 9201
In sum, creating an additional requirement that corrections staff consult with mental health staff prior to spraying McKinney with chemical agents adds but one layer to a long list of existing prerequisites to the use of non-spontaneous force at FSP that will at most affect only a few isolated decisions over the course of McKinney's future incarceration. See Gomez, 255 F.3d at 1130 (upholding the scope of an injunction that would at most affect "a few isolated decisions over the course ofthe[] inmates' sentences"). Accordingly, while "[c]onstantly mindful that the federal courts should not undertake to run the prison," we conclude that the remedial measures ordered by the district court neither require "burdensome implementation" nor are they "beyond the remedial jurisdiction of the district court." Gates, 501 F.2d at 1310. To the contrary, the district court's injunction merely constructs the "minimal foundation" for ensuring McKinney's future confinement at FSP does not run afoul of the Eighth Amendment. See id. For the foregoing reasons, we reject the defendants' arguments that the district court abused its discretion in entering the underlying injunction and uphold the district court's award of injunctive relief to McKinney.
IV. CONCLUSION We conclude that the district court did not err in granting a declaratory judgment in favor of McKinney on his Eighth Amendment conditions-of-
78

Case 3:04-cv-00917-TJC-JRK Document 475 Filed 02/02/11 Page 80 of 80 PageID 9202
confinement claim. We also conclude that the district court did not abuse its discretion in entering the instant injunction. Accordingly, with respect to McKinney, the judgment of the district court is affirmed.36
AFFIRMED.
_ By'~~~~~ _~___ I 36 Due to his death, the injunction with respect to Thomas is vacated, and the matter is remanded to the district court with instructions to dismiss his motion for an injunction as moot. However, we grant the motion for substitution filed by Thomas's father in order to allow the district court to resolve Thomas's pending motion for attorney's fees.
79

 
 Case 3:04-cv-00917-TJC-JRK Document 140 Filed 02/13/06 Page 1 of 65 PageID 1030

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA JACKSONVILLE DIVISION

JEREMIAH THOMAS, EUGENE ULRATH, SYLVESTER BUTLER, CURT MASSIE, KELVIN FRAZIER, REGINALD WILLIAMS, PAUL ECHOLS, MICHAEL MCKINNEY, CHARLES MORGAN, ANTONIO WARD,

Plaintiffs, v.

Civil Action No. 3:04-cv-917-J-32TJC

JAMES V. CROSBY, JR., and MICHAEL RATHMANN, each in his official capacity and his individual capacity, and BRADLEY CARTER, GEORGE SAPP, STEPHEN SIRMONES, JOE LAZENBY JR., ALLEN CLARK, MARK REDD, KEITH MUSSELMAN, TONY ANDERSON, JAMES WILSON, WILLIAM MUSE, COLIN HALLE, STEVEN TRICOCCI, TIM CHASTAIN, RODNEY BARNETT, RONNIE BARTON, KENNETH LAMPP, WENDELL WHITEHURST, STACEY GREEN, DAVID REYNOLDS, JOHN RIGGS, GLYNN REEDER, JOHN RIZER, OSCAR SHIPLEY, DEAN ELLIS, JEFFREY LINDSEY, BILLY JARVIS, each in his individual capacity,

Defendants.

SECOND AMENDED COMPLAINT Plaintiffs, Jeremiah Thomas, Eugene Ulrath, Sylvester Butler, Curt Massie, Kelvin Frazier, Reginald Williams, Paul Echols, Michael McKinney, Charles Morgan, and Antonio Ward, file this Second Amended Complaint against Defendant James V. Crosby, Jr. in his official capacity as Secretary of the Florida Department of Corrections and in his individual

Case 3:04-cv-00917-TJC-JRK Document 140 Filed 02/13/06 Page 2 of 65 PageID 1031
capacity, Michael Rathmann in his official capacity as Warden of the Florida State Prison and in his individual capacity, and against Bradley Carter, George Sapp, Stephen Sirmones, Joe Lazenby Jr., Allen Clark, Mark Redd, Keith Musselman, Tony Anderson, James Wilson, William Muse, Colin Halle, Steven Tricocci, Tim Chastain, Rodney Barnett, Ronnie Barton, Kenneth Lampp, Wendell Whitehurst, Stacey Green, David Reynolds, John Riggs, Glynn Reeder, John Rizer, Oscar Shipley, Dean Ellis, Jeffrey Lindsey, and Billy Jarvis, in their individual capacities. Plaintiffs allege the following:
Preliminary Statement 1. Plaintiffs seek injunctive and declaratory relief and compensatory and punitive damages for violations of their right to be free from cruel and unusual punishment as secured to them by the Eighth and Fourteenth Amendments to the United States Constitution and 42 U.S.C. § 1983. Plaintiffs allege that they are the victims of Defendants’ pattern and practice of using chemical agents as instruments of punishment and torture and in an excessive and unlawful manner against inmates at Florida State Prison. 2. Plaintiffs seek damages against the Florida State Prison correctional officer Defendants who intentionally used chemical agents against the Plaintiffs maliciously and sadistically for the purpose of causing harm and not in a good faith effort to maintain or restore order, and the supervisor Defendants at Florida State Prison who participated, facilitated, encouraged, or acquiesced in the correctional officers= abuse of the Plaintiffs. 3. Plaintiffs seek a declaratory judgment that the policies, practices and customs that Defendants Crosby and Rathmann implement, endorse, and enforce at Florida State Prison as the Secretary of the Florida Department of Corrections and the current Warden at Florida State
2

Case 3:04-cv-00917-TJC-JRK Document 140 Filed 02/13/06 Page 3 of 65 PageID 1032
Prison concerning the use of chemical agents violate the Eighth and Fourteenth Amendments to the Constitution of the United States of America because they place Plaintiffs at an unreasonable risk of being unlawfully abused with chemical agents, and corresponding injunctive relief requiring Defendants Crosby and Rathmann to cease their unlawful conduct and to implement measures to prevent its continuation at Florida State Prison.
4. Plaintiffs are entitled to attorneys’ fees and costs as the prevailing party in accordance with applicable law.
Jurisdiction 5. Jurisdiction of this Court is invoked pursuant to 28 U.S.C. '1331 in that this is a civil action arising under the Constitution of the United States. 6. Jurisdiction of this Court is invoked pursuant to 28 U.S.C. ' 1343(a)(3) in that this action seeks to redress the deprivation, under color of state law, of rights secured to the Plaintiffs by the Eighth and Fourteenth Amendments to the Constitution of the United States. 7. The Plaintiffs= claims for relief are predicated upon 42 U.S.C. ' 1983, which authorizes actions to redress the deprivation, under color of state law, of rights, privileges and immunities secured to the Plaintiffs by the Constitution and laws of the United States. 8. The Plaintiffs' claims for attorneys' fees and costs is predicated upon 42 U.S.C. ' 1988, which authorizes the award of attorneys' fees and costs to prevailing plaintiffs in actions brought pursuant to 42 U.S.C. ' 1983. 9. All Plaintiffs have fully exhausted their administrative remedies.
Venue 10. Venue is proper in this District under 28 U.S.C. ' 1391(b) because at least one of
3

Case 3:04-cv-00917-TJC-JRK Document 140 Filed 02/13/06 Page 4 of 65 PageID 1033
the Defendants resides in this District and a substantial part of the events and omissions giving rise to Plaintiffs' claims occurred in this District.
Parties 11. Plaintiff Jeremiah Thomas is a prisoner currently incarcerated at Union Correctional Institution, located in Union County, Florida. When the events giving rise to his claim occurred, he was incarcerated at Florida State Prison, located in Bradford County, Florida. 12. Plaintiff Eugene Ulrath is a prisoner currently incarcerated at Charlotte Correctional Institution in Charlotte County, Florida. When the events giving rise to his claim occurred, he was incarcerated at Florida State Prison in Bradford County, Florida. 13. Plaintiff, Sylvester Butler, is a prisoner currently incarcerated at Santa Rosa Correctional Institution in Santa Rosa County, Florida. When the events giving rise to his claim occurred, he was incarcerated at Florida State Prison, located in Bradford County, Florida. 14. Plaintiff Curt Massie is a prisoner currently incarcerated at Avon Park Correctional Institution in Polk County, Florida. When the events giving rise to his claim occurred, he was incarcerated at Florida State Prison, located in Bradford County, Florida. 15. Plaintiff, Kelvin Frazier is a prisoner currently incarcerated at Santa Rosa Correctional Institution in Santa Rosa County, Florida. When the events giving rise to his claim occurred, he was incarcerated at Florida State Prison, located in Bradford County, Florida. 16. Plaintiff, Reginald Williams, is a prisoner currently incarcerated at Santa Rosa Correctional Institution in Santa Rosa County, Florida. When the events giving rise to his claim occurred, he was incarcerated at Florida State Prison in Bradford County, Florida. 17. Plaintiff, Paul Echols, is a prisoner currently incarcerated at Florida State Prison
4

Case 3:04-cv-00917-TJC-JRK Document 140 Filed 02/13/06 Page 5 of 65 PageID 1034
in Bradford County, Florida, where the events giving rise to his claim occurred. 18. Plaintiff, Michael McKinney, is a prisoner currently incarcerated at Florida State
Prison in Bradford County, Florida, where the events giving rise to his claim occurred. 19. Plaintiff, Charles Morgan, is a prisoner currently incarcerated at Florida State
Prison in Bradford County, Florida, where the events giving rise to his claim occurred. 20. Plaintiff, Antonio Ward, is a prisoner currently incarcerated at Florida State
Prison in Bradford County, Florida, where the events giving rise to his claim occurred. 21. Defendant, James V. Crosby, Jr. was the Warden of Florida State Prison from
February 1998 to July 18, 2001. Thereafter, he was the Regional Director for Region II of the Florida Department of Corrections, which includes Florida State Prison, until assuming his current position as Secretary of the Florida Department of Corrections in January 2003. He is sued in his individual capacity for his actions as Warden and in his official capacity for his actions as Secretary.
22. Defendant, Michael Rathmann, is currently the Warden of Florida State Prison. He has held that position since May 2004. He is sued in his individual and official capacities.
23. Defendant, Bradley Carter, was the Warden of Florida State Prison from July 18, 2001 to October 1, 2002. He is sued in his individual capacity.
24. Defendant, George Sapp, was an Assistant Warden employed at Florida State Prison from August 2, 1999 to November 1, 2000. He is sued in his individual capacity.
25. Defendant, Stephen Sirmones, was an Assistant Warden employed at Florida State Prison from June 30, 2000 to November 7, 2002. He is sued in his individual capacity.
26. Defendant, Joe Lazenby Jr., was an Assistant Warden employed at Florida State 5

Case 3:04-cv-00917-TJC-JRK Document 140 Filed 02/13/06 Page 6 of 65 PageID 1035
Prison from September 7, 2001 to January 30, 2003. He is sued in his individual capacity. 27. Defendant, Allen Clark, was a Correctional Officer Major and/or Colonel
employed at Florida State Prison at all times material to this action. He is sued in his individual capacity.
28. Defendant Mark Redd was a Correctional Officer Colonel employed at Florida State Prison from September 18, 1998 to June 28, 2001. He is sued in his individual capacity.
29. Defendant, Keith Musselman, was a Correctional Officer Sergeant employed at Florida State Prison at all times material to this action. He is sued in his individual capacity.
30. Defendant, Tony Anderson, was a Correctional Officer Lieutenant employed at Florida State Prison at all times material to this action. He is sued in his individual capacity.
31. Defendant, James Wilson, was a Correctional Officer Sergeant employed at Florida State Prison at all times material to this action. He is sued in his individual capacity.
32. Defendant, William Muse, was a Correctional Officer Captain employed at Florida State Prison at all times material to this action. He is sued in his individual capacity.
33. Defendant, Colin Halle, was a Correctional Officer Lieutenant employed at Florida State Prison at all times material to this action. He is sued in his individual capacity.
34. Defendant, Steven Tricocci, was a Correctional Officer Sergeant employed at Florida State Prison at all times material to this action. He is sued in his individual capacity.
35. Defendant, Tim Chastain, was a Correctional Officer Captain employed at Florida State Prison at all times material to this action. He is sued in his individual capacity.
36. Defendant, Rodney Barnett, was a Correctional Officer Sergeant employed at Florida State Prison at all times material to this action. He is sued in his individual capacity.
6

Case 3:04-cv-00917-TJC-JRK Document 140 Filed 02/13/06 Page 7 of 65 PageID 1036
37. Defendant, Ronnie Barton, was a Correctional Officer Sergeant employed at Florida State Prison at all times material to this action. He is sued in his individual capacity.
38. Defendant, Kenneth Lampp, was a Correctional Officer Captain employed at Florida State Prison at all times material to this action. He is sued in his individual capacity.
39. Defendant, Wendell Whitehurst, was a Correctional Officer Duty Warden and Assistant Warden employed at Florida State Prison at all times material to this action. He is sued in his individual capacity.
40. Defendant, Stacey Green, was a Correctional Officer Sergeant employed at Florida State Prison at all times material to this action. He is sued in his individual capacity.
41. Defendant, David Reynolds, was a Correctional Officer Sergeant employed at Florida State Prison at all times material to this action. He is sued in his individual capacity.
42. Defendant, John Riggs, was a Correctional Officer Captain employed at Florida State Prison at all times material to this action. He is sued in his individual capacity.
43. Defendant, Glynn Reeder, was a Correctional Officer Sergeant employed at Florida State Prison at all times material to this action. He is sued in his individual capacity.
44. Defendant, John Rizer, was a Correctional Officer Sergeant employed at Florida State Prison at all times material to this action. He is sued in his individual capacity.
45. Defendant, Oscar Shipley, was a Correctional Officer Sergeant employed at Florida State Prison at all times material to this action. He is sued in his individual capacity.
46. Defendant, Dean Ellis, was a Correctional Officer Captain employed at Florida State Prison at all times material to this action. He is sued in his individual capacity.
47. Defendant, Jeffrey Lindsey, was a Correctional Officer Sergeant employed at 7

Case 3:04-cv-00917-TJC-JRK Document 140 Filed 02/13/06 Page 8 of 65 PageID 1037
Florida State Prison at all times material to this action. He is sued in his individual capacity. 48. Defendant, Billy Jarvis, was a Major and/or Duty Warden employed at Florida
State Prison at all times material to this action. He is sued in his individual capacity. 49. At all times relevant to the events described herein, the Defendants were acting
under color of state law. Factual Allegations
50. Employees of the Florida Department of Corrections are authorized to use a variety of types of force where the circumstances warrant, including hands-on physical force, chemical agents, electronic immobilization devices, batons, and specialty munitions, as described in Rule 33-602.210, Florida Administrative Code.
51. Rule 33-602.210(14), F.A.C., provides that three types of chemical agents may be used against prisoners: 1. Oleoresin Capsicum (pepper spray), 2. Orthochlorbenzal Malononitrile or Orthochlorobenzylidene Malononitrile (CS tear gas), and 3. Cloroacetophene (CN tear gas).
52. As described in Rule 33-602.210(14), F.A.C., each of these chemical agents causes, and is intended to cause, intense physical pain and fear when used against human beings. The physical effects described by the Rule are as follows: (a) OC pepper spray "causes tearing and involuntary closing of the eyes, nasal discharge, sneezing, disorientation, and the sensation of respiratory distress;" (b) CS tear gas "causes eyes to burn and tear, nasal discharge, and skin and upper respiratory irritation;" and (c) CN tear gas "causes tearing of the eyes, nasal discharge, and skin and upper respiratory irritation."
53. Despite the physical effects of chemical agents, Florida Department of Corrections policy, implemented by Defendant Crosby, permits and encourages use of chemical
8

Case 3:04-cv-00917-TJC-JRK Document 140 Filed 02/13/06 Page 9 of 65 PageID 1038
agents against inmates in confinement with severe mental health needs, respiratory disorders, and other vulnerabilities.
54. Florida State Prison is an institution that the Florida Department of Corrections has designated to house inmates with severe mental health needs who are assigned to Close Management confinement status. These inmates are generally housed alone in cells with limited ventilation and, in most cases, solid doors.
55. The pattern and practice of using chemical agents as a means of inflicting physical pain, torture, and injury on Florida State Prison inmates began in 1999 under the supervision of Defendant Crosby, continued under Defendant Carter, and currently continues under Defendant Rathmann. This pattern and practice became more widespread when Defendant Crosby became the Secretary of the Florida Department of Corrections.
56. As a result of this pattern and practice of using chemical agents to inflict pain, torture, and injury, the Plaintiffs suffered severe injuries to their skin, eyes, lungs, or mental health.
57. The excessive and unjustified use of chemical agents against Plaintiffs Thomas, Ulrath, Butler, Massie, Frazier, Williams, Echols, McKinney, Morgan, and Ward is part of a pattern of hundreds of improper uses of force against Florida State Prison inmates, which both increases Defendants’ awareness of the risk of harm to Plaintiffs and gives rise to the virtual certainty that Plaintiffs will again be unlawfully abused with chemical agents.
58. Prior to 2000, the primary methods of force used against inmates at Florida State Prison were cell extractions and hands-on physical force. After an investigation and trial of several correctional officers involved in the brutal death of inmate Frank Valdes, chemical
9

Case 3:04-cv-00917-TJC-JRK Document 140 Filed 02/13/06 Page 10 of 65 PageID 1039
agents replaced hands-on physical force as the primary use of force at Florida State Prison. 59. Chemical agents were used 238 times in 2000, 385 times in 2001, and 447 times
in 2002. This represents an 87% increase in the use of chemical agents over this period of time. Use of chemical agents at FSP again increased in 2003, to 611 times, or a 157% increase since 2000. Due to a number of factors, including the filing of two federal court actions against the Florida Department of Corrections arising out of the excessive use of chemical agents and the transfer of hundreds of severely mentally ill inmates at Florida State Prison to nominal mental health units (in which chemical agents are not used non-spontaneously) in another institution, the use of chemical agents declined to 277 in 2004. On information and belief, the numbers of uses of chemical agents at Florida State Prison have risen again in 2005.
60. As Defendants have escalated the use of chemical agents, inmates at Florida State Prison, including Plaintiffs, have increasingly complained that correctional officers were using chemical agents as a means of retaliating against them for lawful activities, such as seeking assistance, asking that staff follow the established rules, filing grievances, or otherwise complaining about their conditions of incarceration. These complaints increased Defendants’ knowledge of the risk of harm to Plaintiffs.
61. Defendants were indifferent to the increase in complaints of abuse and in the number of uses of chemical agents despite the fact that they knew that correctional officers used and distributed illegal steroids, which increase aggression and can cause anger management problems. Defendants knew that correctional officers using steroids could experience effect such as extreme mood swings, feelings of extreme confidence and invincibility, delusions, extreme irritability, violent outbursts, impaired judgment, and depression, all of which increase
10

Case 3:04-cv-00917-TJC-JRK Document 140 Filed 02/13/06 Page 11 of 65 PageID 1040
the risk of harm to Plaintiffs. 62. Consistent with the unwritten policy of using chemical agents as punishment and
torture, Defendants Crosby, Carter, Sapp, Sirmones, Lazenby and Rathmann, the highest administrative and security officials at Florida State Prison, took no action to stop either the use of steroids or the systematic abuse of inmates at Florida State Prison.
63. Consistent with the unwritten policy of using chemical agents as punishment and torture, Defendants Crosby, Carter and Rathmann have promoted officers who were using chemical agents with increasing frequency, even though there were rising numbers of complaints of abuse against those same officers.
64. Consistent with the unwritten policy of using chemical agents as punishment and torture, Defendants Crosby, Carter and Rathmann have failed to train, supervise and discipline correctional officers to prevent the excessive and unjustified use of chemical agents against Florida State Prison inmates, including Plaintiffs.
65. Consistent with the unwritten policy of using chemical agents as punishment and torture, Defendant Crosby has encouraged the abuse of inmates by promoting and protecting officers who engaged in unlawful activity, including felony steroid distribution, misuse of state property, and aggression against inmates and staff.
66. Defendant Crosby knows that several Florida State Prison correctional officers, including Defendant Shipley, have abused inmates because the Florida State Prison Warden who preceded Defendant Crosby identified these correctional officers prior to leaving his position. Defendant Crosby did not investigate the conduct of these correctional officers and he took no action to protect inmates, including Plaintiffs, from the unreasonable risk that these aggressive
11

Case 3:04-cv-00917-TJC-JRK Document 140 Filed 02/13/06 Page 12 of 65 PageID 1041
correctional officers posed to inmates’ safety. 67. Defendants Redd, Clark and Jarvis held the most senior security staff positions at
Florida State Prison between 1999 and 2002 and, with the support of Defendants Crosby, Carter, Sapp, Sirmones, and Lazenby, were responsible for direct supervision of the correctional officers who were using chemical agents.
68. Defendants Crosby, Carter, Sapp, Sirmones, Lazenby, Redd, Clark, Jarvis and Rathmann, actively encouraged the security staff to use chemical agents to humiliate and abuse prisoners and frequently authorized the use of chemical agents with full knowledge that the force was being used solely to inflict pain, including against Plaintiffs.
69. Defendants Crosby, Carter, Sapp, Sirmones, Lazenby, Redd, Clark, Jarvis and Rathmann routinely authorized the use of chemical agents, including against Plaintiffs, without taking steps to ensure that the use of force was consistent with constitutional standards and Rule 33-602.210, F.A.C..
70. Rule 33-602.210(2), F.A.C., provides in part that "All authorized use of force incidents will be videotaped in their entirety." This part of the rule was added after correctional officers under the supervision of Defendant Crosby, then Warden of Florida State Prison, beat inmate Frank Valdes to death at Florida State Prison in July 1999.
71. Despite widespread complaints of misuse of chemical agents, while Warden of Florida State Prison, Defendant Crosby advocated for and implemented a policy of not videotaping the non-spontaneous and planned use of chemical agents when directed at an inmate who is in his or her cell. He implemented this malignant policy even though he knew that video cameras were available at the prison and every other type of force was required to be videotaped
12

Case 3:04-cv-00917-TJC-JRK Document 140 Filed 02/13/06 Page 13 of 65 PageID 1042
for review. In response to Defendant Crosby’s advocacy, the former Secretary of the Florida Department of Corrections promulgated a rule that exempted chemical agents from the videotaping requirements. Defendants Carter and Rathmann have continued this policy at Florida State Prison.
72. Defendants Crosby, Carter, and Rathmann know of the risks associated with not videotaping uses of force against inmates, particularly in the face of widespread complaints of abuse. The policy of not videotaping uses of chemical agents is intended to avoid creating a record that would allow meaningful review of the use of chemical agents
73. Inmates who believe that they have been the victim of unjustified use of chemical agents can grieve the issue. The grievance process consists of three steps: an informal appeal to the responsible local official, a formal appeal at the prison level, and a formal appeal to the Secretary of the Florida Department of Corrections, Defendant Crosby in his official capacity.
74. None of the grievances Plaintiffs have filed have resulted in a finding that chemical agents were used without justification or to excess.
75. At Florida State Prison, Defendants Crosby, Carter, Sapp, Sirmones, Lazenby and Rathmann have reviewed numerous inmate grievances alleging abuse with chemical agents. Consistent with the unwritten policy of using chemical agents for punishment and torture, they have failed to follow up on grievances alleging abuse with chemical agents, and have failed to take action even when Department of Corrections Inspector General=s Office determined that a complaint should be resolved at the institutional level.
76. Consistent with the unwritten policy of using chemical agents for punishment and torture, Defendant Crosby has failed to investigate and has ignored the complaints of the
13

Case 3:04-cv-00917-TJC-JRK Document 140 Filed 02/13/06 Page 14 of 65 PageID 1043
prisoners who were seeking relief from the officers who were using chemical agents against them for improper reasons.
77. On information and belief, and consistent with the unwritten policy of using chemical agents for punishment and torture, Defendants Crosby, Carter, Sapp, Sirmones, Lazenby, and Rathmann, who are responsible for making a recommendation as to whether the use of force should be approved or disapproved, have never once recommended that the use of chemical agents be disapproved.
78. On information and belief, and consistent with the unwritten policy of using chemical agents for punishment and torture, Defendants Crosby, Carter, Sapp, Sirmones, Lazenby and Rathmann have never requested a special investigation into the emerging pattern of increased use of chemical agents and the corresponding claims that these weapons were being used to abuse and injure Florida State Prison inmates, including Plaintiffs.
79. As Secretary, Defendant Crosby has created, encouraged, implemented, and enforced the policies and practices of not videotaping the use of chemical agents, of failing to meaningfully investigate allegations of abuse of inmates with chemical agents, of promoting security and administrative staff with disciplinary records that indicate a high risk of aggression and other misconduct, and of failing to exempt vulnerable inmates from the non-spontaneous use of chemical agents at the Florida State Prison.
80. As a result of Defendant Crosby’s actions as Secretary, the use of chemical agents has steadily increased since 1999 and, on information and belief, currently represents the majority of all uses of force within the Florida Department of Corrections.
81. As Secretary, Defendant Crosby knows that inmates, including those with severe 14

Case 3:04-cv-00917-TJC-JRK Document 140 Filed 02/13/06 Page 15 of 65 PageID 1044
mental illness and respiratory disorders, are abused with chemical agents at Florida State Prison. 82. As Secretary, Defendant Crosby has the ability to end the unjustified and
excessive use of chemical agents against Plaintiffs at Florida State Prison by a variety of means, including but not limited to: (1) requiring all non-spontaneous uses of chemical agents to be videotaped, (2) abolishing all non-spontaneous uses of chemical agents on inmates diagnosed with or objectively manifesting the symptoms consistent with a mental illness, (3) abolishing all non-spontaneous uses of chemical agents on inmates with medical conditions, such as asthma, which increase the risk of harm if chemical agents are used, (4) training staff in the use of techniques to calm inmates who are upset without the need for any kind of force, (5) requiring the use of staff specially trained to defuse confrontations prior to the non-spontaneous use of chemical agents, and (6) requiring adequate and meaningful review and monitoring of all uses of chemical agents. His failure to take any of these actions places Plaintiffs at a continuing risk of being abused with chemical agents again.
Jeremiah Thomas 83. Plaintiff Thomas is a 33-year-old man with an extensive history of psychiatric problems. He suffers from Schizoaffective Disorder, which causes him to experience auditory hallucinations and bouts of mania during which he does not sleep for days and makes rhythmic noises by talking to himself or banging on his cell walls and door. Since his incarceration in 1991, he has been civilly committed to the Correctional Mental Health Institution several times, frequently admitted for inpatient mental health treatment, and is currently housed in the inpatient Transitional Care Unit at Union Correctional Institution. Defendants knew in 2000 and currently know that Plaintiff Thomas was and is severely mentally ill.
15

Case 3:04-cv-00917-TJC-JRK Document 140 Filed 02/13/06 Page 16 of 65 PageID 1045
84. Plaintiff Thomas has been diagnosed with asthma, a medical condition that causes inflammation of the lungs and reduced breathing capacity. Defendants knew in 2000 and currently know that Plaintiff Thomas has asthma.
85. In 2000, Plaintiff Thomas was classified as an S-3, the most serious outpatient psychiatric classification, assigned to inmates with very acute mental health needs.
86. Throughout 2000, Defendants repeatedly abused Plaintiff Thomas with chemical agents and issued Plaintiff Thomas disciplinary reports because he was demonstrating symptoms of his mental illness.
87. Repeatedly, in 2000, Plaintiff Thomas was determined to be not mentally competent at the time of the disciplinary reports and he was repeatedly transferred between Florida State Prison and the inpatient unit at Union Correctional Institution.
88. At Florida State Prison on September 20, 2000, at approximately 11:20 a.m., Plaintiff Thomas cut and mutilated his forearm. He was seen by mental health staff and he asked for help.
89. On September 20, 2000, at approximately 3:00 p.m., mental health staff saw Mr. Thomas again.
90. On September 20, 2000, Defendant Musselman sprayed a large quantity of pepper spray into Plaintiff Thomas' cell without first issuing any orders or warnings. This force was used at the direction of Defendant Anderson and with the authorization of Defendant Clark.
91. In order to cover up the excessive quantity of chemical agents he used, Defendant Musselman wrote a report stating that he used only three 1-second bursts of chemical spray. This statement is false.
16

Case 3:04-cv-00917-TJC-JRK Document 140 Filed 02/13/06 Page 17 of 65 PageID 1046
92. The next day, September 21, 2000, Plaintiff Thomas was in his cell when Defendant Wilson sprayed a large amount of pepper spray into Plaintiff Thomas' cell without warning. This was at the direction of Defendant Muse and with the authorization of Defendant Clark.
93. In his Use of Force report Defendant Wilson falsely stated that he used only three 1-second bursts of spray. This is a false statement designed to cover up the grossly excessive quantities of chemical agents used.
94. Two days later, September 23, 2000, Plaintiff Thomas was in his cell when Defendant Wilson failed to issue any warnings or orders to Plaintiff Thomas before spraying him with both pepper spray and tear gas. This force was used at the direction of Defendant Halle and with the authorization of Defendant Clark.
95. Again, Defendant Wilson wrote a false Use of Force Report stating that he had used only three 1-second bursts of both pepper spray and CN tear gas to cover up the fact that he used great quantities of chemical agents that soaked Plaintiff Thomas's entire body.
96. The next day, on September 24, 2000, Defendant Tricocci sprayed Plaintiff Thomas with chemical agents without first issuing any orders or warnings. This force was used at the direction of Defendant Chastain and with the authorization of Defendant Clark. This was the fourth time in five days that Defendant Clark authorized the use of force against Plaintiff Thomas.
97. In his Use of Force Report, Defendant Tricocci falsely stated that he used only three 1-second bursts of spray on Plaintiff Thomas.
98. During this time Plaintiff Thomas was experiencing an acute psychiatric 17

Case 3:04-cv-00917-TJC-JRK Document 140 Filed 02/13/06 Page 18 of 65 PageID 1047
breakdown and was in need of mental health care. During the post-use of force exam conducted by a nurse at approximately 3:00 p.m., Plaintiff Thomas exhibited disturbing signs of psychosis. The nurse noted that Plaintiff Thomas told her that he played professional football with the Dolphins in Philadelphia. She also noted that Plaintiff Thomas smelled like urine.
99. Plaintiff Thomas was severely burned by the excessive amount of chemical agents used on September 20, 21, 23 and 24, 2000. He had painful blisters and open wounds on his ear and neck, abdomen, left arm, upper back and lower right leg.
100. In addition to the intense burning sensation and second-degree burns, each time they sprayed Plaintiff Thomas he could barely breathe and was left taking little gasps of air for days afterward. He felt like he was going to die and he frequently wept from the pain.
101. On September 25, 2000, Defendant Sapp, at that time the Assistant Warden at Florida State Prison, reviewed and approved the uses of force on Plaintiff Thomas from September 20, 21, 23 and 24, 2000. After reviewing these reports, he was aware that Plaintiff Thomas was having symptoms of psychosis and mania and that he had blisters and burns all over his body. Despite this knowledge, he took no action to prevent the further use of force against Plaintiff Thomas or to ensure that he received proper mental health treatment.
102. On September 25, 2000, Plaintiff Thomas was in his cell when Defendant Barnett sprayed Plaintiff Thomas with chemical agents three separate times without ever issuing any orders or warnings. This force was used at the direction of Defendant Chastain and with the authorization of Defendant Whitehurst.
103. Defendant Barnett falsified his Use of Force Report to cover up the grossly excessive quantities of pepper spray, CN tear gas, and CS tear gas he used on Plaintiff Thomas.
18

Case 3:04-cv-00917-TJC-JRK Document 140 Filed 02/13/06 Page 19 of 65 PageID 1048
104. The following day, September 26, 2000, Defendant Barton sprayed a large amount of pepper spray into Plaintiff Thomas' cell. No orders or warnings were issued beforehand. This force was used at the direction of Defendant Lampp and with the authorization of Defendant Whitehurst.
105. Defendant Barton wrote a Use of Force Report that falsely stated that he used only three 1-second bursts of chemical spray on Plaintiff Thomas.
106. Each of the Defendants on the security staff who were involved in using or authorizing the use of chemical agents against Plaintiff Thomas on September 20, 21, 23, 24, 25 and 26, 2000, including Defendants Musselman, Anderson, Clark, Wilson, Muse, Halle, Tricocci, Chastain, Barnett, Barton, Lampp, Sapp, and Whitehurst, were aware that Plaintiff Thomas was exhibiting signs of psychosis and was in need of mental health care.
107. In order to avoid creating a record that would allow meaningful review of the use of chemical agents against Plaintiff Thomas, Defendants repeatedly failed to videotape the use of chemical agents against him, even though these were not spontaneous uses of force and there was ample time to obtain a video camera.
108. Each use of chemical agents against Plaintiff Thomas was approved without a formal investigation. On September 27, 2000, Mr. Thomas was evaluated in the medical clinic and admitted to the infirmary for treatment for his chemical burns. He was also placed on psychiatric observation due to his psychotic and manic behavior. Medical notes indicate that he exhibited multiple signs of psychiatric decompensation, including severe psychomotor agitation, loud and pressured speech, extreme and unpredictable mood swings, disorganized thinking and memory impairment.
19

Case 3:04-cv-00917-TJC-JRK Document 140 Filed 02/13/06 Page 20 of 65 PageID 1049
109. On September 29, 2000, Plaintiff Thomas was transferred to the Crisis Stabilization Unit at Union Correctional Institution for intensive mental health treatment.
110. It took over six months for Mr. Thomas= mental condition to stabilize after the repeated and unjustified use of force against him in lieu of proper mental health treatment.
111. Defendants’ policy and practice of unlawfully punishing inmates with chemical agents, as well as their malicious and sadistic intent to harm Plaintiff Thomas, is further demonstrated by their unrelenting and repeated use of chemical agents against him at Florida State Prison. Prior to the use of chemical agents against Plaintiff Thomas on six days in September 2000, chemical agents were used against him thirteen times at Florida State Prison.
112. Plaintiff Thomas was more vulnerable to being permanently harmed by the use of chemical agents in September 2000 because Defendants had used chemical agents against him on the following thirteen prior occasions, which further evidence Defendants’ malicious intent to harm Plaintiff Thomas:
a. Defendant Anderson on December 29, 1999. b. Defendant Reeder on February 9, 2000. c. Non-defendant officers on February 11, 2000. d. Defendants Muse and Redd on February 27, 2000. e. Defendants Reeder, Muse and Sapp on March 1, 2000. f. Defendants Reeder, Lampp, and Sapp on July 13, 2000. g. Defendants Halle, Lampp, and Sapp on July 18, 2000. h. Defendants Reeder, Chastain and Sapp on July 20, 2000. i. Defendants Muse and Sapp on July 21, 2000.
20

Case 3:04-cv-00917-TJC-JRK Document 140 Filed 02/13/06 Page 21 of 65 PageID 1050
j. Defendants Riggs and Sapp on July 23, 2000, at 2:55am. k. Defendant Sapp on July 23, 2000, at 5:22pm. l. Defendants Barton, Lampp, and Whitehurst on July 26, 2000. m. Defendants Halle and Sirmones on August 3, 2000. 113. Defendants knew that the uses of force on Plaintiff Thomas were not necessary to maintain or restore order. 114. Although Defendant Crosby knew that Plaintiff Thomas was mentally ill and that he faced an unreasonable risk of again being seriously harmed with chemical agents if returned to Florida State Prison, Plaintiff Thomas was returned to Florida State Prison on June 18, 2003. 115. Plaintiff Thomas was again abused with chemical agents on July 20, 2003 and July 22, 2003 which caused him to experience physical pain and burning, as well as extreme psychological trauma. 116. Defendant Ellis participated in the use of chemical agents against Plaintiff Thomas on July 20, 2003, which contributed to and aggravated Plaintiff Thomas’ injuries. 117. Defendants’ policy and practice of unlawfully punishing inmates with chemical agents, as well as their malicious and sadistic intent to harm Plaintiff Thomas, is demonstrated by their unrelenting and repeated use of chemical agents against him at Florida State Prison. 118. Plaintiff Thomas has been housed in inpatient status since July 31, 2003, immediately after being tortured with chemical agents in July of 2003. 119. Plaintiff Thomas was traumatized by the abuse that he suffered at Florida State Prison and he is terrified to return there. 120. Although he is currently housed in an inpatient mental health unit, Plaintiff
21

Case 3:04-cv-00917-TJC-JRK Document 140 Filed 02/13/06 Page 22 of 65 PageID 1051
Thomas is currently classified as a Close Management inmate and it is likely that he will continue in that classification for many years.
121. Defendant Crosby has authority to transfer Plaintiff Thomas to Florida State Prison. Defendant Crosby’s practice is to return an inmate classified as Close Management to a Close Management institution when he or she is released from inpatient status. Because Plaintiff Thomas is severely mentally ill, it is likely that Defendant Crosby will transfer him to Florida State Prison. Plaintiff Thomas is afraid that he will be sprayed again with chemical agents if he is returned to Florida State Prison in the future.
122. Although Defendant Crosby knows that Plaintiff Thomas has repeatedly been abused with chemical agents at Florida State Prison, he remains deliberately indifferent to the high numbers of non-spontaneous uses of chemical agents and of complaints that mentally ill inmates are abused with chemical agents when they are objectively manifesting the symptoms consistent with a mental illness at Florida State Prison.
123. Plaintiff Thomas was tortured with chemical agents as a direct result of Defendant Crosby’s policies and practices, including his policy to allow the non-spontaneous use of chemical agents against inmates diagnosed with or objectively manifesting the symptoms consistent with a mental illness and against inmates with asthma, and his policy not to require videotaping of the non-spontaneous use of chemical agents at Florida State Prison.
124. Because these policies and Defendant Crosby’s other policies and practices that permit and encourage officers to abuse Plaintiff Thomas have not changed, Plaintiff Thomas faces an unreasonable and continuing risk of again being seriously harmed either with chemical agents under circumstances similar to those described in this Complaint or by the fact of his
22

Case 3:04-cv-00917-TJC-JRK Document 140 Filed 02/13/06 Page 23 of 65 PageID 1052
return if he is housed at Florida State Prison again. 125. Plaintiff Thomas has exhausted all available administrative remedies regarding
the matters described herein. Eugene Ulrath
126. Plaintiff Ulrath is a 42-year old man with an extensive history of psychiatric problems, including severe depression, dating from childhood to the present.
127. Plaintiff Ulrath was transferred to Florida State Prison on October 8, 2002. At that time he was classified as an S-3, the most serious outpatient psychiatric classification, assigned to inmates with very acute mental health needs.
128. Defendants knew in 2002 and currently know that Plaintiff Ulrath was and is mentally ill.
129. The same day he arrived, October 8, 2002, Plaintiff Ulrath sought mental health care by declaring a psychological emergency to several members of the security staff and to two different nurses on the wing. Every single one of his requests was ignored.
130. A few hours after his last attempt to declare a psychological emergency, Plaintiff Ulrath was lying quietly in his cell when Defendant Shipley repeatedly sprayed Plaintiff Ulrath with pepper spray and tear gas under the supervision of Defendant Ellis and with the authorization of Defendant Jarvis.
131. The Defendants gave no warnings or orders to Plaintiff Ulrath before using chemical agents against him.
132. Defendant Shipley authored a Use of Force Report alleging that Plaintiff Ulrath was sprayed because he was causing a disturbance on the wing by kicking his cell door and
23

Case 3:04-cv-00917-TJC-JRK Document 140 Filed 02/13/06 Page 24 of 65 PageID 1053
encouraging other inmates to do the same. He further stated that he only used a total of six one-second bursts of pepper spray and three one-second bursts of tear gas.
133. The Use of Force report is a false statement of Plaintiff Ulrath's conduct and of the amount of gas used.
134. The next day, October 9, 2002, Plaintiff Ulrath was again quiet in his cell when Defendant Lindsey, under the supervision of Defendant Lampp and with the authorization of Defendant Jarvis, sprayed him with chemical agents without warning.
135. In an effort to cover up this malicious use of force, Defendant Lindsey wrote a Use of Force Report that stated Plaintiff Ulrath was kicking on his cell door and refusing all orders to stop. He also stated that he only used a total of six one-second bursts of pepper spray and three one-second bursts of tear gas.
136. This Use of Force Report is false and is designed to conceal the unlawful nature of Defendants Lindsey, Lampp, and Jarvis= vindictive use of force on Plaintiff Ulrath because they knew he was having psychological problems.
137. Plaintiff Ulrath is currently classified as a Close Management inmate and he is likely to continue in that classification for many years.
138. Defendants knew that the uses of force on Plaintiff Ulrath were not necessary to maintain or restore order.
139. As a result of the abusive treatment on the preceding days and as a result of the injuries he sustained, on October 10, 2002, Plaintiff Ulrath attempted to commit suicide by hanging himself with his bed sheet. He was placed in a special suicide observation cell.
140. As a result of being exposed to an excessive quantity of chemical agents, Plaintiff 24

Case 3:04-cv-00917-TJC-JRK Document 140 Filed 02/13/06 Page 25 of 65 PageID 1054
Ulrath suffered chemical burns and developed large blisters on his back, buttock and leg. 141. On October 13, 2002, Plaintiff Ulrath was quiet in his cell when, contrary to
Florida Department of Corrections’ policy, Defendant Shipley had Plaintiff Ulrath’s cell door opened, entered Plaintiff Ulrath’s cell alone, and threatened Plaintiff Ulrath, thereby inflicting further injury.
142. Plaintiff Ulrath was transferred to inpatient mental health unit at Union Correctional Institution, where he was housed for years. Plaintiff Ulrath is currently housed in outpatient status.
143. Plaintiff Ulrath was traumatized by the abuse that he suffered at Florida State Prison and maintains that he will commit suicide rather than return to Florida State Prison.
144. Defendant Crosby has authority to transfer Plaintiff Ulrath to Florida State Prison. 145. Because Plaintiff Ulrath has a history of severe mental illness, it is likely that he will again be housed at Florida State Prison. 146. Plaintiff Ulrath was tortured with chemical agents as a direct result of Defendant Crosby’s policies and practices, including his policy to allow the non-spontaneous use of chemical agents against inmates diagnosed with or objectively manifesting the symptoms consistent with a mental illness, and his policy not to require videotaping of the non-spontaneous use of chemical agents at Florida State Prison. 147. Because these policies and Defendant Crosby’s other policies and practices that permit and encourage officers to abuse Plaintiff Ulrath have not changed, Plaintiff Ulrath faces an unreasonable and continuing risk of again being seriously harmed with chemical agents under circumstances similar to those described in this Complaint or by the fact of his return if he is
25

Case 3:04-cv-00917-TJC-JRK Document 140 Filed 02/13/06 Page 26 of 65 PageID 1055
again housed at Florida State Prison. 148. Plaintiff Ulrath has exhausted his administrative remedies regarding the matters
described herein. Sylvester Butler
149. Plaintiff Butler is a 42-year old man with a history of psychiatric problems. He is borderline developmentally disabled.
150. In October of 2000, Plaintiff Butler was classified as an S-3, the most serious outpatient psychiatric classification, assigned to inmates with very acute mental health needs.
151. Defendants knew that Plaintiff Butler was mentally ill. 152. On October 3, 2000, while at Florida State Prison, Plaintiff Butler sought medical attention by declaring a medical emergency to security staff. 153. In response, Defendants Chastain and Reeder turned off the exhaust fans, approached his cell, unlocked the food flap and Defendant Reeder began spraying chemical agents into the cell. The can used was approximately the size of a fire extinguisher, with a long hose and nozzle that was inserted into the cell. 154. Despite Plaintiff Butler's compliance with all orders, Defendants returned twice during the next hour and sprayed tear gas into his cell. No warnings were given before chemical agents were used. 155. Defendants did not take Plaintiff Butler to the shower so he could rinse off the chemicals. 156. Defendant Clark authorized this use of force against Plaintiff Butler with full knowledge that it was being used solely as a means of torture and intimidation.
26

Case 3:04-cv-00917-TJC-JRK Document 140 Filed 02/13/06 Page 27 of 65 PageID 1056
157. Defendant Reeder wrote a pretextual and false Use of Force report alleging hat force was used because Plaintiff Butler was "beating on his cell door and was refusing all verbal orders from me to cease his disorderly conduct or chemical agents would be administered." He also stated that he used only three 1-second bursts of pepper spray and of tear gas.
158. Defendant Reeder fabricated this Use of Force Report with the intention of covering up his unjustified and excessive use of chemical agents on Plaintiff Butler.
159. In a further attempt to conceal his improper use of force, Defendant Reeder rote Plaintiff Butler a disciplinary report for disorderly conduct.
160. Plaintiff Butler developed large, water-filled blisters on his hip. The blisters broke and Plaintiff Butler's skin peeled off, leaving his entire hip with a raw, seeping wound.
161. Plaintiff Butler has been abused with chemical agents several times at Florida State Prison since October 3, 2000.
162. Defendants’ policy and practice of unlawfully punishing inmates with chemical agents, as well as their malicious and sadistic intent to harm Plaintiff Butler, is further demonstrated by their unrelenting and repeated use of chemical agents against him at Florida State Prison. In addition to the use of chemical agents on October 3, 2000, Defendants used chemical agents against Plaintiff Butler an additional seventeen (17) times at Florida State Prison.
163. Defendants’ use of chemical agents further evidences Defendants’ malicious and sadistic intent to harm Plaintiff Butler and contributed to and aggravated Plaintiff Butler’s physical and mental injuries on the following seventeen occasions:
a. Defendants Reeder, Lampp and Sapp on April 28, 2000. 27

Case 3:04-cv-00917-TJC-JRK Document 140 Filed 02/13/06 Page 28 of 65 PageID 1057
b. Defendants Musselman, Anderson and Whitehurst on July 5, 2000. c. Defendant Jarvis on December 8, 2000. d. Defendant Lampp on January 2, 2001. e. Defendants Reeder, Lampp and Sirmones on January 17, 2001. f. Defendants Riggs and Redd on February 6, 2001. g. Defendants Reeder, Lampp and Clark on March 13, 2001. h. Defendants Ellis, Clark and Redd on March 16, 2001. i. Defendants Ellis and Sirmones on August 5, 2001. j. Defendants Reynolds, Riggs, and Sirmones on August 30, 2001. k. Defendants Muse and Sirmones on August 31, 2001. l. Defendants Lindsey, Lamp and Sirmones on October 16, 2001. m. Defendants Ellis and Lazenby on November 10, 2001. n. Defendant Lazenby on May 25, 2002. o. Defendants Ellis and Clark on June 4, 2002. p. Defendants Ellis and Sirmones on July 3, 2002. q. Defendant Sirmones on September 12, 2002. 164. Defendants knew that the uses of force on Plaintiff Butler were not necessary to maintain or restore order. 165. Defendant Crosby’s policy and practice of using chemical agents to punish inmates throughout Florida prisons resulted in five further uses of chemical agents against Plaintiff Butler at institutions other than Florida State Prison on the following dates, which further evidences Defendants’ malicious intent to harm Plaintiff Butler: May 29, 2003;
28

Case 3:04-cv-00917-TJC-JRK Document 140 Filed 02/13/06 Page 29 of 65 PageID 1058
December 21, 2004; December 25, 2004; March 12, 2005; and October 10, 2005. 166. Plaintiff Butler is currently classified as a Close Management inmate and it is
likely that he will continue in that classification for many years. 167. Defendant Crosby has authority to transfer Plaintiff Butler to Florida State Prison. 168. Because Plaintiff has a history of severe mental illness, it is likely that he again
will be housed at Florida State Prison. 169. Plaintiff Butler was tortured with chemical agents as a direct result of Defendant
Crosby’s policies and practices, including his policy to allow the non-spontaneous use of chemical agents against inmates diagnosed with or objectively manifesting the symptoms consistent with a mental illness and his policy not to require videotaping of the non-spontaneous use of chemical agents at Florida State Prison.
170. Because this policy and Defendant Crosby’s other policies and practices that permit and encourage officers to abuse Plaintiff Butler have not changed, Plaintiff Butler faces an unreasonable and continuing risk of again being seriously harmed with chemical agents under circumstances similar to those described in this Complaint if he is returned to Florida State Prison.
171. Plaintiff Butler has exhausted all available administrative remedies regarding the matters described herein.
Curt Massie 172. Plaintiff Massie is a 46-year-old man diagnosed with Obsessive Compulsive Disorder and Delusional Disorder. At all times material to the Complaint he was taking psychotropic medication to treat his mental illness.
29

Case 3:04-cv-00917-TJC-JRK Document 140 Filed 02/13/06 Page 30 of 65 PageID 1059
173. In October 2000, he was classified as an S-3, the most serious outpatient psychiatric classification, assigned to inmates with very acute mental health needs.
174. Defendants knew in 2000 that Plaintiff Massie was mentally ill. 175. On October 8, 2000, at Florida State Prison, Defendants Green and Halle used chemical agents on Plaintiff Massie to punish him for making a funny face behind a nurse's back. 176. Defendants Green and Halle failed to issue any warnings or orders to Plaintiff Massie before emptying cans of pepper spray and CS tear gas into his locked cell. 177. To justify the use of chemical agents, Defendant Green wrote a Use of Force Report stating that force was used because Plaintiff Massie had cursed at staff, screamed threats, and refused several orders to stop. He also stated that he used only three 1-second bursts of both pepper spray and tear gas. 178. The Use of Force Report written by Defendant Green falsely states the reasons for the use of force and the amount of chemical agents used on Plaintiff Massie. 179. Defendant Clark authorized this use of force with full knowledge that it was unjustified. 180. When Plaintiff Massie was taken to the shower, Defendant Green turned the hot water on to intensify the pain Plaintiff Massie was experiencing from the chemical agents. 181. Defendants failed to give Plaintiff Massie clean sheets for several hours and he was never issued a clean blanket. 182. Plaintiff Massie suffered second-degree chemical burns that caused large fluid-filled blisters and inflamed skin on his left arm, left leg, back and hip. The blisters on Plaintiff Massie's skin later burst, leaving raw exposed skin.
30

Case 3:04-cv-00917-TJC-JRK Document 140 Filed 02/13/06 Page 31 of 65 PageID 1060
183. Plaintiff Massie still experiences pain and burning as a result of the residual condition of his skin.
184. In order to avoid creating a record that would allow meaningful review of the use of chemical agents against Plaintiff Massie, Defendants Clark, Green, and Halle failed to videotape either of the incidents when chemical agents were used against him, even though these were not spontaneous uses of force and there was ample time to obtain a video camera.
185. Plaintiff Massie has been abused with chemical agents since October 8, 2000. 186. Defendants’ policy and practice of unlawfully punishing inmates with chemical agents, as well as their malicious and sadistic intent to harm Plaintiff Massie, is further demonstrated by Defendants additional use of chemical agents against him at Florida State Prison despite his extreme reaction to chemical agents. 187. Defendants Lampp and Lazenby used chemical agents against Defendant Massie on September 23, 2001, which further evidences Defendants’ malicious intent to harm Plaintiff Massie and contributed to and aggravated Plaintiff Massie’s physical and mental injuries. 188. Defendants knew that the uses of force on Plaintiff Massie were not necessary to maintain or restore order. 189. Defendant Crosby has authority to transfer Plaintiff Massie to Florida State Prison. 190. Because Plaintiff Massie has a history of severe mental illness, it is likely that he will again be housed at Florida State Prison if he is again housed in Close Management. 191. Plaintiff Massie was tortured with chemical agents as a direct result of Defendant Crosby’s policies and practices, including his policy to allow the non-spontaneous use of
31

Case 3:04-cv-00917-TJC-JRK Document 140 Filed 02/13/06 Page 32 of 65 PageID 1061
chemical agents against inmates diagnosed with or objectively manifesting the symptoms consistent with a mental illness and his policy not to require videotaping of the non-spontaneous use of chemical agents at Florida State Prison.
192. Because this policy and Defendant Crosby’s other policies and practices that permit and encourage officers to abuse Plaintiff Massie have not changed, Plaintiff Massie faces an unreasonable and continuing risk of again being seriously harmed with chemical agents under circumstances similar to those described in this Complaint if he is returned to Florida State Prison.
193. Plaintiff Massie has exhausted all available administrative remedies regarding the matters described herein.
Kelvin Frazier 194. Plaintiff Frazier is a 47-year old man with asthma, a condition that causes inflammation of the lungs and reduced breathing capacity. 195. Defendants knew in January 2001 and are currently aware that Plaintiff Frazier has asthma. 196. On January 4, 2001, at Florida State Prison, Defendants Reynolds and Riggs sprayed Plaintiff Frazier in response to his request to speak to Defendant Riggs, a Captain. 197. When Defendant Riggs arrived at Plaintiff Frazier's cell, instead of speaking with Plaintiff Frazier he directed Defendant Reynolds to spray pepper spray into the cell using a canister approximately the size of a fire extinguisher. No orders or warnings were issued to Plaintiff Frazier. Defendants Riggs and Reynolds continued to spray pepper spray and tear gas into Plaintiff Frazier's over the course of the next half hour.
32

Case 3:04-cv-00917-TJC-JRK Document 140 Filed 02/13/06 Page 33 of 65 PageID 1062
198. The quantity of chemical agents used by Defendants was so great that Plaintiff Frazier was soaking wet, as were the walls, floor, and his personal property.
199. After exposure to chemical agents, Plaintiff Frazier had an asthma attack leaving him in respiratory distress. Blisters later formed on Plaintiff Frazier's neck and his skin started to peel. Plaintiff Frazier had second-degree chemical burns on his neck and around his left ear.
200. In order to cover up the unjustified use of force, Defendant Reynolds wrote a Use of Force Report that falsely stated Plaintiff Frazier was "being loud and disruptive by yelling and kicking on his cell door" and that "he was ordered numerous times to cease his disruptive conduct, but to no avail." He also stated that he used only three 1-second bursts of both pepper spray and tear gas.
201. Plaintiff Frazier's disciplinary report for disorderly conduct, written to further conceal the Defendants' unjustified use of force, was overturned on appeal.
202. On January 11, 2001, Defendants Reeder and Lampp sprayed Plaintiff Frazier with chemical agents in retaliation for the grievances he filed about the previous week's use of force. Plaintiff Frazier received no warnings from Defendants before they sprayed chemical agents into his cell.
203. The chemical agents aggravated the burns on Plaintiff Frazier's neck and also burned his forearms.
204. Defendants Reeder and Lampp were aware that the use of force on Plaintiff Frazier was not necessary to maintain or restore order because Plaintiff Frazier was quiet and locked in his cell.
205. Defendant Reeder wrote a Use of Force Report stating that he "observed Inmate 33

Case 3:04-cv-00917-TJC-JRK Document 140 Filed 02/13/06 Page 34 of 65 PageID 1063
Frazier beating on his cell door, and [sic] was refusing all verbal orders from me to cease his disorderly conduct or chemical agents would be administered." He also stated that he sprayed only three 1-second bursts of pepper spray.
206. This was a false report written to cover up the unjustified and excessive use of force against Plaintiff Frazier.
207. Plaintiff Frazier has been abused with chemical agents since January 11, 2001. 208. Defendants’ policy and practice of unlawfully punishing inmates with chemical agents, as well as their malicious and sadistic intent to harm Plaintiff Frazier, is further demonstrated by Defendants use of chemical agents against him on other occasions at Florida State Prison. 209. Defendants’ use of chemical agents contributed to and aggravated Plaintiff Frazier’s physical and mental injuries on the following occasions further evidences Defendants’ malicious intent to harm Plaintiff Frazier:
A. Defendants Rizer, Muse and Whitehurst on June 10, 2000. B. Defendants Muse and Clark on April 18, 2002. 210. Defendant Crosby’s policy and practice of using chemical agents to punish inmates throughout Florida prisons resulted in two further uses of chemical agents against Plaintiff Frazier at institutions other than Florida State Prison on October 22, 2002, and November 25, 2003, which further evidences Defendants’ malicious intent to harm Plaintiff Frazier. 211. Defendants knew that the uses of force on Plaintiff Frazier were not necessary to maintain or restore order.
34

Case 3:04-cv-00917-TJC-JRK Document 140 Filed 02/13/06 Page 35 of 65 PageID 1064
212. Plaintiff Frazier is currently classified as a Close Management inmate and it is likely that he will continue in that classification for many years.
213. Defendant Crosby has authority to transfer Plaintiff Frazier to Florida State Prison.
214. Plaintiff Frazier was tortured with chemical agents as a result of Defendant Crosby’s policies and practices, including his policy not to require videotaping of the nonspontaneous use of chemical agents at Florida State Prison and his policy to allow correctional officers to use chemical agents against inmates with asthma.
215. Because this policy and Defendant Crosby’s other policies and practices that permit and encourage officers to abuse Plaintiff Frazier have not changed, Plaintiff Frazier faces an unreasonable and continuing risk of again being seriously harmed with chemical agents under circumstances similar to those described in this Complaint if he is returned to Florida State Prison.
216. Plaintiff Frazier has exhausted all available administrative remedies regarding the matters described herein.
Reginald Williams 217. Plaintiff Williams is a 45-year old man. 218. On October 24, 2001, at Florida State Prison, Defendants Rizer, Reynolds and Riggs sprayed Plaintiff Williams with chemical agents while he was quiet in his cell solely in retaliation for litigation he had filed against prison officials. 219. Defendant Lazenby authorized the use of chemical agents against Plaintiff Williams without properly determining if the use of force was necessary.
35

Case 3:04-cv-00917-TJC-JRK Document 140 Filed 02/13/06 Page 36 of 65 PageID 1065
220. Defendant Rizer sprayed the chemical agents directly into Plaintiff Williams' face, immediately blinding him and causing intense pain and burning. He could not rinse his eyes because Defendants continued to spray more chemical agents into the cell.
221. When Plaintiff Williams was finally allowed to shower, the Defendants intentionally turned on very hot water, intensifying the burning and pain on his skin and in his eyes.
222. Defendant Rizer wrote a Use of Force Report alleging that chemical agents were used because Plaintiff Williams was being disorderly and causing a disturbance on the wing. He also stated that he only used a total of six one-second bursts of pepper spray.
223. This report is pretextual, false, and written to cover up the nature of Defendant Rizer's unjustified and excessive use of chemical agents on Plaintiff Williams.
224. As a result of having chemical agents sprayed directly into his eyes, the vision in Plaintiff Williams' right eye has been permanently damaged and he now must wear glasses to see clearly.
225. Plaintiff Williams has been abused with chemical agents since October 24, 2001. 226. Defendants’ policy and practice of unlawfully punishing inmates with chemical agents, as well as their malicious and sadistic intent to harm Plaintiff Williams, is further demonstrated by Defendants use of chemical agents against him on two other occasions at Florida State Prison. 227. Defendants’ malicious use of chemical agents contributed to and aggravated Plaintiff Williams’s physical and mental injuries on the following two occasions and evidences Defendants’ malicious intent to harm Plaintiff Williams:
36

Case 3:04-cv-00917-TJC-JRK Document 140 Filed 02/13/06 Page 37 of 65 PageID 1066
A. Defendants Halle, Ellis and Sirmones on July 7, 2002. B. Defendant Lazenby on August 22, 2002. 228. Defendant Crosby’s policy and practice of using chemical agents to punish inmates throughout Florida prisons resulted in two further uses of chemical agents against Plaintiff Williams at institutions other than Florida State Prison on October 9, 2003, and October 12, 2003, which further evidences Defendants’ malicious intent to harm Plaintiff Williams. 229. Defendants knew that the uses of force on Plaintiff Williams were not necessary to maintain or restore order. 230. Plaintiff Williams is currently classified as a Close Management inmate and it is likely that he will continue in that classification for many years. 231. Defendant Crosby has authority to transfer Plaintiff Williams to Florida State Prison. 232. Plaintiff Williams was tortured with chemical agents as a result of Defendant Crosby’s policies and practices, including his policy not to require videotaping of the nonspontaneous use of chemical agents at Florida State Prison. 233. Because this policy and Defendant Crosby’s other policies and practices that permit and encourage officers to abuse Plaintiff Williams have not changed, Plaintiff Williams faces an unreasonable and continuing risk of again being seriously harmed with chemical agents under circumstances similar to those described in this Complaint if he is returned to Florida State Prison. 234. Plaintiff Williams has exhausted all available administrative remedies regarding the matters described herein.
37

Case 3:04-cv-00917-TJC-JRK Document 140 Filed 02/13/06 Page 38 of 65 PageID 1067
Paul Echols 235. Plaintiff Echols is a 24-year-old man with a history of serious psychiatric problems including major depression. Since his incarceration, he has attempted suicide and has been admitted for inpatient mental health treatment. Prior to his incarceration, he had been civilly committed because of his severe mental health needs. 236. Plaintiff Echols has been classified as an S-3 for the duration of his time at Florida State Prison. S-3 is the most serious outpatient psychiatric classification, assigned to inmates with very acute mental health needs. 237. Defendants knew in 2004 and currently know that Plaintiff Echols was and is mentally ill. 238. On May 28, 2004, correctional officers sprayed chemical agents into Plaintiff Echols’ cell. 239. The officers sprayed him in retaliation for grievances that Plaintiff Echols filed earlier in May 2004, in which Echols asked that Defendant Rathmann and the Inspector General’s Office under Defendant Crosby ensure that correctional officers stop denying him his food trays. 240. The correctional officers emptied two cans of pepper spray and CS tear gas into Plaintiff Echols’ closed cell with the authorization of the Warden’s office under the supervision of Defendant Rathmann. 241. Correctional officers who sprayed Plaintiff Echols wrote a false report, which stated that they gassed him because he was kicking his door, to cover up the unlawfulness of their actions.
38

Case 3:04-cv-00917-TJC-JRK Document 140 Filed 02/13/06 Page 39 of 65 PageID 1068
242. After Plaintiff Echols was abused with chemical agents, Defendant Rathmann approved the unlawful use of force against him.
243. The excessive and unauthorized use of chemical agents caused severe skin burns and Plaintiff Echols experienced chest pains and shortness of breath.
244. On May 29, 2004, burns on the back of Plaintiff Echols’ neck were suppurating so much that his bed sheets were stained.
245. On May 30, 2004, Plaintiff Echols had blisters, skin redness, serious drainage, and open, broken blisters as a result of the chemical agents. On June 1, 2004, Plaintiff Echols had large, water-filled blisters on his neck.
246. Defendant Rathmann knew that Plaintiff Echols suffered these injuries. 247. Throughout early June, Plaintiff Echols asked mental health staff for assistance several times. 248. On June 10, 2004, Plaintiff Echols declared a medical emergency because he felt dizzy and his nose was bleeding. 249. In response, correctional officers used an entire can of chemical agents against him, even though they could see that Plaintiff Echols’ nose was bleeding. 250. The correctional officers abused Plaintiff Echols with the authorization of the Warden’s office, under the supervision of Defendant Rathmann. 251. Defendant Rathmann approved the abuse of Plaintiff Echols on June 10, 2004. 252. Defendants’ policy and practice of unlawfully punishing inmates with chemical agents, as well as their malicious and sadistic intent to harm Plaintiff Echols, is further demonstrated by their unrelenting and repeated use of chemical agents against him at Florida
39

Case 3:04-cv-00917-TJC-JRK Document 140 Filed 02/13/06 Page 40 of 65 PageID 1069
State Prison. 253. Defendants’ use of chemical agents further evidences Defendants’ malicious
intent to harm Plaintiff Echols and contributed to and aggravated Plaintiff Echols’ physical and mental injuries on at least the following eight (8) dates at Florida State Prison: August 27, 2005; July 5, 2005; April 13, 2004; October 13, 2004; January 9, 2003; August 9, 2003; July 18, 2003; and July 3, 2003.
254. Defendants knew that the uses of force on Plaintiff Echols were not necessary to maintain or restore order.
255. Defendant Rathmann personally authorized the use of chemical agents against Plaintiff Echols on October 13, 2004.
256. Each of these incidents were authorized and approved by the Warden’s office, under the supervision of Defendant Rathmann.
257. After each use of force, correctional officers authored a Use of Force Report that falsely stated that Plaintiff Echols was sprayed because he was violating a rule.
258. Defendant Rathmann never disapproved a use of force against Plaintiff Echols. 259. Because Defendant Rathmann has created, encouraged, implemented, and enforced an atmosphere at Florida State Prison that facilitates officer abuse of inmates, on several occasions Plaintiff has refused a shower after being sprayed with chemical agents because he is afraid that correctional officers will beat him if he leaves his cell. 260. Plaintiff Echols suffered pain and burning each time that he was abused with chemical agents at Florida State Prison with the authorization and approval of Defendant Rathmann.
40

Case 3:04-cv-00917-TJC-JRK Document 140 Filed 02/13/06 Page 41 of 65 PageID 1070
261. Plaintiff Echols is currently classified as a Close Management inmate and it is likely that he will continue in that classification for many years. As a result of this classification, it is likely that Defendant Crosby will exercise his authority to retain Plaintiff Echols at Florida State Prison indefinitely.
262. Plaintiff Echols was tortured with chemical agents on each occasion as a direct result of Defendant Crosby’s policies and practices, including his policy to allow the nonspontaneous use of chemical agents against inmates diagnosed with or objectively manifesting the symptoms consistent with a mental illness and his policy not to require videotaping of the non-spontaneous use of chemical agents at Florida State Prison.
263. Because this policy and Defendant Crosby’s other policies and practices that permit and encourage officers to abuse Plaintiff Echols have not changed, Plaintiff Echols faces an unreasonable and continuing risk of again being seriously harmed with chemical agents under circumstances similar to those described in this Complaint while he is housed at Florida State Prison.
264. Plaintiff Echols has exhausted his administrative remedies regarding the matters described herein.
Michael McKinney 265. Plaintiff McKinney is a 36-year-old man with a history of serious psychiatric problems including major depression. Since his incarceration, he has attempted suicide and has been admitted for inpatient mental health treatment more than ten times. 266. In 2004, Plaintiff McKinney was classified as an S-3, the most serious outpatient psychiatric classification, assigned to inmates with very acute mental health needs.
41

Case 3:04-cv-00917-TJC-JRK Document 140 Filed 02/13/06 Page 42 of 65 PageID 1071
267. Defendants knew in 2004 and currently know that Plaintiff McKinney was and is mentally ill.
268. On June 15, 2004, correctional officers sprayed chemical agents into Plaintiff McKinney’s cell.
269. The correctional officers emptied two cans of pepper spray and one can of CS tear gas into Plaintiff McKinney’s closed cell. Defendant Rathmann personally authorized the use of the CS tear gas on Plaintiff McKinney.
270. The excessive and unauthorized use of chemical agents caused painful burning of his skin and eyes, and an abrasion on Plaintiff’s right shoulder. He was referred to mental health shortly after the incident because he was experiencing psychological trauma.
271. On June 16, 2004, Plaintiff McKinney was transferred to an Isolation Management Room (IMR) due to experiencing serious depression. Plaintiff McKinney was kept in the IMR for six days.
272. The Warden’s office, under the supervision of Defendant Rathmann, approved the unlawful use of force against Plaintiff McKinney shortly thereafter.
273. On June 21, 2004, Plaintiff McKinney was released from the IMR and transferred back to his dorm at Florida State Prison.
274. Later that same day, correctional officers sprayed chemical agents into Plaintiff McKinney’s cell.
275. The correctional officers emptied one can of pepper spray and one can of CS tear gas into Plaintiff McKinney’s closed cell with the authorization of the Warden’s office, under the supervision of Defendant Rathmann.
42

Case 3:04-cv-00917-TJC-JRK Document 140 Filed 02/13/06 Page 43 of 65 PageID 1072
276. The excessive and unauthorized use of chemical agents caused Plaintiff McKinney to experience intense pain, and red, burning eyes and skin.
277. On June 22, 2004, correctional officers again sprayed chemical agents into Plaintiff McKinney’s cell.
278. The correctional officers emptied two cans of CS tear gas into Plaintiff McKinney’s closed cell with the authorization of the Warden’s office, under the supervision of Defendant Rathmann.
279. The excessive and unauthorized use of chemical agents caused Plaintiff McKinney to experience intense pain, and red, burning eyes and skin. He was referred to mental health shortly after the incident because he was experiencing psychological trauma.
280. On June 23, 2004, Plaintiff McKinney had to be transferred back to an IMR due to experiencing serious depression. Plaintiff McKinney was kept in the IMR for 6 days.
281. The Warden’s office, under the supervision of Defendant Rathmann, approved the unlawful uses of force against Plaintiff McKinney shortly thereafter.
282. On May 13, 2005, correctional officers sprayed chemical agents into Plaintiff McKinney’s cell when Plaintiff McKinney was trying to get their attention because they would not give him a food tray.
283. The correctional officers emptied a can of pepper spray into Plaintiff McKinney’s closed cell with the authorization of the Warden’s office.
284. The excessive and unauthorized use of chemical agents caused painful burning of his skin and eyes.
285. Shortly after the use of force, Plaintiff McKinney declared a medical emergency 43

Case 3:04-cv-00917-TJC-JRK Document 140 Filed 02/13/06 Page 44 of 65 PageID 1073
because he was having sharp chest pains. Plaintiff McKinney was also referred to mental health because he was experiencing psychological trauma.
286. On May 16, 2005, Plaintiff McKinney tried to kill himself as a result of the use of force.
287. On May 17, 2005, Plaintiff McKinney was placed in an IMR under suicide watch. 288. On May 18, 2005, Plaintiff McKinney was transferred to an intensive inpatient mental health unit, for 30 days, during which he had to be treated for depression and suicidal ideations. 289. On May 19, 2005, Defendant Rathmann approved the unlawful use of force against Plaintiff McKinney. 290. Defendants’ policy and practice of unlawfully punishing inmates with chemical agents, as well as their malicious and sadistic intent to harm Plaintiff McKinney, is demonstrated by their unrelenting and repeated use of chemical agents against him at Florida State Prison. In addition to the use of chemical agents on June 15, 2004; June 21, 2004; June 22, 2004; and May 13, 2005, Plaintiff McKinney has been sprayed with chemical agents on at least twenty-nine (28) other occasions at Florida State Prison since 2001. 291. Defendants’ use of chemical agents further evidences Defendants’ malicious and sadistic intent to harm Plaintiff McKinney and contributed to and aggravated Plaintiff McKinney’s physical and mental injuries on the at least the following twenty-nine (28) occasions: April 3, 2001; April 30, 2001; November 25, 2001; December 19, 2001; February 8, 2002; March 23, 2002; March 23, 2002 (later in the day); May 5, 2002; August 1, 2002; August 3, 2002; March 5, 2003; March 5, 2003 (later in the day); March 6, 2003; May 29, 2003; June
44

Case 3:04-cv-00917-TJC-JRK Document 140 Filed 02/13/06 Page 45 of 65 PageID 1074
15, 2003; July 15, 2003; September 6, 2003; October 5, 2003; October 7, 2003; October 7, 2003 (later in the day); October 11, 2003; February 8, 2004; February 9, 2004; February 24, 2004; March 9, 2004; January 5, 2005; February 3, 2005; and February 28, 2005.
292. Defendants knew that the uses of force on Plaintiff McKinney were not necessary to maintain or restore order.
293. Each of the incidents since June 2004 was authorized and approved by the Warden’s office under the supervision of Defendant Rathmann.
294. Defendant Rathmann never disapproved a use of force against Plaintiff McKinney.
295. Because Defendant Rathmann has created, encouraged, implemented, and enforced an atmosphere at Florida State Prison that facilitates officer abuse of inmates, on several occasions, Plaintiff McKinney has refused a shower after being sprayed with chemical agents because he is afraid that correctional officers will beat him or spray him again if he leaves his cell.
296. Plaintiff McKinney suffered pain and burning each time that he was abused with chemical agents at Florida State Prison with the authorization and approval of Defendant Rathmann.
297. Plaintiff McKinney is currently classified as a Close Management inmate and it is likely that he will continue in that classification for many years. As a result of this classification, it is likely that Defendant Crosby will exercise his authority to retain Plaintiff McKinney at Florida State Prison indefinitely.
298. Plaintiff McKinney was tortured with chemical agents on each occasion as a 45

Case 3:04-cv-00917-TJC-JRK Document 140 Filed 02/13/06 Page 46 of 65 PageID 1075
direct result of Defendant Crosby’s policies and practices, including his policy to allow the nonspontaneous use of chemical agents against inmates diagnosed with or objectively manifesting the symptoms consistent with a mental illness and his policy not to require videotaping of the non-spontaneous use of chemical agents at Florida State Prison.
299. Because this policy and Defendant Crosby’s other policies and practices permit and encourage the officers to abuse Plaintiff McKinney have not changed, Plaintiff McKinney faces an unreasonable and continuing risk of again being seriously harmed with chemical agents under circumstances similar to those described in this Complaint while he is housed at Florida State Prison.
300. Plaintiff McKinney has exhausted his administrative remedies regarding the matters described herein.
Charles Morgan 301. Plaintiff Morgan is a 39-year-old man with a history of serious psychiatric problems including Bipolar Disorder and Depression. Since his incarceration, he has attempted suicide on multiple occasions and has been admitted for inpatient mental health care numerous times. 302. Plaintiff Morgan has been classified as an S-3 for the duration of his time at Florida State Prison. S-3 is the most serious outpatient psychiatric classification, assigned to inmates with very acute mental health needs. 303. Plaintiff Morgan has been classified as an asthmatic since an initial health screening in November 2003. Plaintiff Morgan requires the use of an inhaler and the Department has prescribed inhalers to Plaintiff Morgan since his initial screening.
46

Case 3:04-cv-00917-TJC-JRK Document 140 Filed 02/13/06 Page 47 of 65 PageID 1076
304. Defendants knew in 2004 and currently know that Plaintiff Morgan is mentally ill and an asthmatic.
305. In late June 2004, Plaintiff Morgan was experiencing immense grief and depression because of the recent death of his mother. He was hearing voices, feeling suicidal, and he sought help by declaring multiple psychological emergencies.
306. From June 28, 2004 until June 30, 2004 and from July 1, 2004 until July 2, 2004, Plaintiff Morgan was kept in inpatient status in an Isolation Management Room (IMR) because he was depressed and suicidal.
307. On July 2, 2004, upon return to his cell at Florida State Prison, Plaintiff Morgan declared a psychological emergency. Plaintiff Morgan felt like he was “going out of his mind.” He was agitated, shaking, and clearly depressed.
308. On July 3, 2004, correctional officers sprayed chemical agents into Plaintiff Morgan’s cell.
309. Defendant Green emptied two cans of pepper spray into Plaintiff Morgan’s closed cell under the direct supervision of Defendant Ellis. The use of force was authorized by the Warden’s office, under the supervision of Defendant Rathmann.
310. The excessive and unauthorized use of chemical agents caused Plaintiff Morgan to experience shortness of breath, and painful burning of his skin and eyes.
311. After Plaintiff Morgan was abused with chemical agents, the Warden’s office, under the supervision of Defendant Rathmann, approved the unlawful use of force against him.
312. During July and August 2004, Plaintiff Morgan was seen by mental health staff on a weekly basis.
47

Case 3:04-cv-00917-TJC-JRK Document 140 Filed 02/13/06 Page 48 of 65 PageID 1077
313. On August 25, 2004, Plaintiff Morgan cut his wrist in an attempted suicide. Plaintiff Morgan was placed in a shower on the wing for a few hours for observation and then returned to his cell.
314. Later that same evening, correctional officers sprayed chemical agents into Plaintiff Morgan’s cell while he was sleeping.
315. The correctional officers emptied two cans of pepper spray and one can of CS tear gas into Plaintiff Morgan’s closed cell with the authorization of the Warden’s office under the supervision of Defendant Rathmann.
316. The excessive and unauthorized use of force caused Plaintiff Morgan to experience shortness of breath, and painful burning of his skin and eyes.
317. Correctional officers who sprayed Plaintiff Morgan wrote a report, which falsely stated they gassed him because he was kicking his door and yelling, to cover up the unlawfulness of their actions.
318. The Warden’s office, under the supervision of Defendant Rathmann, approved the unlawful use of force against Plaintiff Morgan.
319. On August 26, 2004, Plaintiff Morgan was transferred to inpatient status because of the severity of his mental health needs. He remained in inpatient status until late September 2005.
320. Plaintiff Morgan was recently released back to Florida State Prison after requiring 13 consecutive months of intensive inpatient mental health care following the August 25, 2004, use of chemical agents against him.
321. Defendants’ policy and practice of unlawfully punishing inmates with chemical 48

Case 3:04-cv-00917-TJC-JRK Document 140 Filed 02/13/06 Page 49 of 65 PageID 1078
agents, as well as their malicious and sadistic intent to harm Plaintiff Morgan, is further demonstrated by their unrelenting and repeated use of chemical agents against him at Florida State Prison. In addition to the use of chemical agents on July 3, 2004 and August 25, 2004, Defendants used chemical agents against Plaintiff Morgan an additional four times at Florida State Prison.
322. Defendants’ use of chemical agents further evidences Defendants’ malicious and sadistic intent to harm Plaintiff Morgan and contributed to and aggravated Plaintiff Morgan’s physical and mental injuries on at least the following four occasions since 2001: December 7, 2001; February 16, 2002; March 27, 2002; April 18, 2002; and April 22, 2002.
323. Defendant Crosby’s policy and practice of using chemical agents to punish inmates throughout Florida prisons resulted in two further uses of chemical agents against Plaintiff Morgan at institutions other than Florida State Prison on the following dates, which further evidences Defendants’ malicious intent to harm Plaintiff Morgan: November 14, 2002; and December 3, 2002.
324. Defendants knew that the uses of force on Plaintiff Morgan were not necessary to maintain or restore order.
325. Defendant Rathmann never disapproved a use of force against Plaintiff Morgan. 326. Because Defendant Rathmann has created, encouraged, implemented, and enforced an atmosphere at Florida State Prison that facilitates officer abuse of inmates, Plaintiff refused a shower after being sprayed with chemical agents because he is afraid that correctional officers will beat him or spray him again if he leaves his cell. 327. Plaintiff Morgan suffered pain, burning, and shortness of breath each time that he
49

Case 3:04-cv-00917-TJC-JRK Document 140 Filed 02/13/06 Page 50 of 65 PageID 1079
was abused with chemical agents at Florida State Prison with the authorization and approval of Defendant Rathmann.
328. Plaintiff Morgan is currently classified as a Close Management inmate and it is likely that he will continue in that classification for many years. As a result of this classification, it is likely that Defendant Crosby will exercise his authority to retain Plaintiff Morgan at Florida State Prison indefinitely.
329. Plaintiff Morgan was tortured with chemical agents on each occasion as a direct result of Defendant Crosby’s policies and practices, including his policy to allow the nonspontaneous use of chemical agents against inmates diagnosed with or objectively manifesting the symptoms consistent with a mental illness and against inmates with asthma, and to not videotape the non-spontaneous use of chemical agents at Florida State Prison.
330. Because this policy and Defendant Crosby’s other policies and practices that permit and encourage officers to abuse Plaintiff Morgan have not changed, Plaintiff Morgan faces an unreasonable and continuing risk of again being seriously harmed with chemical agents under circumstances similar to those described in this Complaint while he is housed at Florida State Prison.
331. Plaintiff Morgan has exhausted his administrative remedies regarding the matters described herein.
Antonio Ward 332. Plaintiff Ward is a 32-year-old man with psychiatric problems, including depression and delusions. Plaintiff Ward has required psychiatric inpatient care on a number of occasions. He currently has a psychological grade of S-3, which is the most serious outpatient
50

Case 3:04-cv-00917-TJC-JRK Document 140 Filed 02/13/06 Page 51 of 65 PageID 1080
psychiatric classification, assigned to inmates with very acute mental health needs. 333. Defendants knew in 2004 and currently know that Plaintiff Ward is mentally ill. 334. On April 5, 2005, while Plaintiff Ward was locked in his cell at Florida State
Prison, correctional officers sprayed chemical agents into his cell. This unlawful use of force was supervised and directed by Defendant Muse and authorized by Defendant Rathmann.
335. As a result of this malicious use of force, Plaintiff Ward suffered a psychiatric breakdown. The next day, on April 6, 2005, Plaintiff Ward was transferred to the inpatient psychiatric unit at Union Correctional Institution in Union County, Florida, for intensive mental health treatment.
336. On April 14, 2005, Plaintiff Ward was again sprayed with chemical agents at Florida State Prison under the supervision of Defendant Muse.
337. A few weeks later, Plaintiff Ward began waking up at night with chest pains, gasping for air. At that time the medical staff at Florida State Prison noted that Plaintiff Ward may have asthma.
338. On July 14, 2005, Plaintiff Ward was again sprayed with chemical agents at Florida State Prison while he was complaint in his cell. The correctional officers sprayed him in retaliation for speaking to Plaintiffs’ attorneys and expert witness the previous day during a tour of Florida State Prison pursuant to a lawsuit filed in the Middle District of Florida, Osterback v. Crosby.
339. This retaliatory use of force was supervised by Defendant Muse and authorized by Defendant Rathmann.
340. After he was sprayed Plaintiff Ward suffered respiratory distress, blurry vision, 51

Case 3:04-cv-00917-TJC-JRK Document 140 Filed 02/13/06 Page 52 of 65 PageID 1081
painful burning of his skin and eyes, and an aggravation of his psychiatric symptoms, including depression.
341. As a result of the use of chemical agents against him, Plaintiff Ward has developed serious chronic respiratory problems. In October 2005 he was diagnosed with a respiratory disorder called dyspnea, which causes shortness of breath and difficulty breathing.
342. Defendants’ policy and practice of unlawfully punishing inmates with chemical agents, as well as their malicious and sadistic intent to harm Plaintiff Ward, is demonstrated by their unrelenting and repeated use of chemical agents against him at Florida State Prison.
343. Prior to the incidents of April 5, 2005; April 14, 2005; and July 14, 2005, Defendant Green maliciously used chemical agents against Plaintiff Ward on May 26, 2004.
344. Defendant Crosby’s policy and practice of using chemical agents to punish inmates throughout Florida prisons resulted in six further uses of chemical agents against Plaintiff Ward at institutions other than Florida State Prison on the following dates, which further evidences Defendants’ malicious intent to harm Plaintiff Ward: September 18, 2001; June 21, 2002; July 26, 2002; October 14, 2003; December 2, 2003; December 2, 2003 (later in the day); and January 8, 2004.
345. Defendants knew that the uses of force on Plaintiff Ward were not necessary to maintain or restore order.
346. Defendant Rathmann never disapproved a use of chemical agents against Plaintiff Ward.
347. Plaintiff Ward is currently classified as a Close Management inmate and it is likely that he will continue in that classification for many years. As a result of this classification,
52

Case 3:04-cv-00917-TJC-JRK Document 140 Filed 02/13/06 Page 53 of 65 PageID 1082
it is likely that Defendant Crosby will exercise his authority to retain Plaintiff Ward at Florida State Prison indefinitely.
348. Plaintiff Ward was tortured with chemical agents as a direct result of Defendant Crosby’s policies and practices, including his policy to allow the non-spontaneous use of chemical agents against inmates diagnosed with or objectively manifesting the symptoms consistent with a mental illness and against inmates with asthma, and to not videotape the nonspontaneous use of chemical agents at Florida State Prison.
349. Because this policy and Defendant Crosby’s other policies and practices that permit and encourage officers to abuse Plaintiff Ward have not changed, Plaintiff Ward faces an unreasonable and continuing risk of again being seriously harmed with chemical agents under circumstances similar to those described in this Complaint at Florida State Prison.
350. Plaintiff Ward has exhausted all available administrative remedies regarding the matters described herein. His requests for relief were denied by Defendant Crosby.
CAUSES OF ACTION: EIGHTH AMENDMENT VIOLATIONS 351. Based on the foregoing allegations, Defendants have violated Plaintiffs’ right to be free from cruel and unusual punishment by using chemical agents maliciously and sadistically. 352. Defendants Crosby, Carter, Sapp, Sirmones and Lazenby, Redd, Clark, Jarvis and Rathmann have actively implemented an unwritten policy that correctional officers are to use chemical agents to inflict corporal punishment on Florida State Prison inmates. 353. Defendants Crosby, Carter, Sapp, Sirmones and Lazenby, Redd, Clark, Jarvis and Rathmann have knowingly permitted their subordinates to repeatedly use chemical agents in
53

Case 3:04-cv-00917-TJC-JRK Document 140 Filed 02/13/06 Page 54 of 65 PageID 1083
violation of written policy and maliciously and sadistically for the very purpose of causing harm and not in a good-faith effort to maintain or restore discipline. Their failure to act resulted in the use of unjustified and excessive force against Plaintiffs.
354. Defendants Crosby and Rathmann continue to act with deliberate indifference to the substantial likelihood that Plaintiffs will again be subjected to chemical agents maliciously and sadistically to cause harm and not for any legitimate penological reason.
355. Because of Defendants Crosby and Rathmann’s actions, the unjustified or excessive use of chemical agents is so pervasive that there is an extremely high likelihood that the Plaintiffs will be subject to this unconstitutional practice in the future.
COUNT I Plaintiff Thomas Claim for Damages 356. Plaintiff Thomas repeats and realleges paragraphs 1 through 11, and 21 through 125. 357. Defendants Musselman, Anderson, Clark, Wilson, Muse, Halle, Tricocci, Chastain, Barnett, Barton, Lampp, Whitehurst, Crosby, Redd, and Sapp=s actions violated Plaintiff Thomas=s right to be free from cruel and unusual punishment, which is guaranteed by the Eighth Amendment. 358. As a result of Defendants’ unconstitutional actions, Plaintiff Thomas suffered second-degree chemical burns over a large portion of his body, respiratory distress, increased anxiety related to his mental illness, pain and suffering, mental and emotional distress, humiliation and degradation, and aggravation of previous injuries. Plaintiff Thomas’ injuries are permanent or continue and Plaintiff will suffer further losses in the future.
54

Case 3:04-cv-00917-TJC-JRK Document 140 Filed 02/13/06 Page 55 of 65 PageID 1084
359. As a further result of Defendants’ acts, which were done with malice or reckless indifference to Plaintiff Thomas’ federally protected rights, Plaintiff Thomas is entitled to punitive damages.
COUNT II Plaintiff Ulrath Claim for Damages 360. Plaintiff Ulrath repeats and realleges paragraphs 1 through 10, 12, 21 through 82 and 126 through 148. 361. Defendants Lindsey, Shipley, Ellis, Jarvis, Crosby, Carter, Sapp, Sirmones, Lampp, and Lazenby violated Plaintiff Ulrath=s right to be free from cruel and unusual punishment, which is guaranteed by the Eighth Amendment. 362. As a result of Defendants’ unconstitutional actions, Plaintiff Ulrath suffered chemical burns over a large portion of his body, increased anxiety related to his mental illness, pain and suffering, mental and emotional distress, humiliation and degradation, and aggravation of previous injuries. Plaintiff Ulrath’s injuries are permanent or continue and Plaintiff will suffer further losses in the future. 363. As a further result of Defendants’ acts, which were done with malice or reckless indifference to Plaintiff Ulrath’s federally protected rights, Plaintiff Ulrath is entitled to punitive damages.
COUNT III Plaintiff Butler Claim for Damages 364. Plaintiff Butler repeats and realleges paragraphs 1 through 10, 13, 21 through 82 and 149 through 171. 365. Defendants Reeder, Chastain, Clark, Crosby, Redd, and Sapp violated Plaintiff
55

Case 3:04-cv-00917-TJC-JRK Document 140 Filed 02/13/06 Page 56 of 65 PageID 1085
Butler’s right to be free from cruel and unusual punishment, which is guaranteed by the Eighth Amendment.
366. As a result of Defendants’ unconstitutional actions, Plaintiff Butler suffered second-degree chemical burns, pain and suffering, respiratory distress, mental and emotional distress, humiliation and degradation, and aggravation of previous injuries. Plaintiff Butler’s injuries are permanent or continue and Plaintiff will suffer further losses in the future.
367. As a further result of Defendants’ acts, which were done with malice or reckless indifference to Plaintiff Butler’s federally protected rights, Plaintiff Butler is entitled to punitive damages.
COUNT IV Plaintiff Massie Claim for Damages 368. Plaintiff Massie repeats and realleges paragraphs 1 through 10, 14, 21 through 82 and 172 through 193. 369. Defendants Green, Halle, Clark, Crosby, Redd, and Sapp violated Plaintiff Massie=s right to be free from cruel and unusual punishment, which is guaranteed by the Eighth Amendment. 370. As a result of Defendants’ unconstitutional actions, Plaintiff Massie suffered second-degree chemical burns over a large portion of his body, increased anxiety related to his mental illness, pain and suffering, mental and emotional distress, humiliation and degradation, and aggravation of previous injuries. Plaintiff Massie’s injuries are permanent or continue and Plaintiff will suffer further losses in the future. 371. As a further result of Defendants’ acts, which were done with malice or reckless
56

Case 3:04-cv-00917-TJC-JRK Document 140 Filed 02/13/06 Page 57 of 65 PageID 1086

indifference to Plaintiff Massie’s federally protected rights, Plaintiff Massie is entitled to

punitive damages.

COUNT V Plaintiff Frazier Claim for Damages

372. Plaintiff Frazier repeats and realleges paragraphs 1 through 10, 15, 21 through 82

and 194 through 216.

373. Defendants Reynolds, Reeder, Lampp, Riggs, Crosby, Redd, and Sapp violated

Plaintiff Frazier=s right to be free from cruel and unusual punishment, which is guaranteed by the

Eighth Amendment.

374. As a result of Defendants’ unconstitutional actions, Plaintiff Frazier suffered

second-degree chemical burns, inflammation of the skin on his arms, pain and suffering, mental

and emotional distress, humiliation and degradation.

Plaintiff Frazier’s injuries are

permanent or continue and Plaintiff will suffer further losses in the future.

375. As a further result of Defendants’ acts, which were done with malice or reckless

indifference to Plaintiff Frazier’s federally protected rights, Plaintiff Frazier is entitled to

punitive damages.

COUNT VI Plaintiff Williams Claim for Damages

376. Plaintiff Williams repeats and realleges paragraphs 1 through 10, 16, 21 through

82 and 217 through 234.

377. Defendants Rizer, Reynolds, Riggs, Lazenby, Crosby, Carter, Sapp, and Sirmones

violated Plaintiff Williams= right to be free from cruel and unusual punishment, which is

guaranteed by the Eighth Amendment.

57

Case 3:04-cv-00917-TJC-JRK Document 140 Filed 02/13/06 Page 58 of 65 PageID 1087
378. As a result of Defendants’ unconstitutional actions, Plaintiff Williams suffered permanent damage to his right eye, pain and suffering, mental and emotional distress, humiliation and degradation, and aggravation of previous injuries. Plaintiff Williams’ injuries are permanent or continue and Plaintiff will suffer further losses in the future.
379. As a further result of Defendants’ acts, which were done with malice or reckless indifference to Plaintiff Williams’ federally protected rights, Plaintiff Williams is entitled to punitive damages.
COUNT VII Plaintiff Echols Claim for Damages 380. Plaintiff Echols repeats and realleges paragraphs 1 through 10, 17, 21 through 82 and 235 through 264. 381. Defendants Rathmann and Crosby violated Plaintiff Echols’s right to be free from cruel and unusual punishment, which is guaranteed by the Eighth Amendment. 382. As a result of Defendants’ unconstitutional actions, Plaintiff Echols has suffered chemical burns, a deterioration of his mental health, pain and suffering, mental and emotional distress, humiliation and degradation, and aggravation of previous injuries. Plaintiff Echols’ injuries are permanent or continue and Plaintiff will suffer further losses in the future. 383. As a further result of Defendants’ acts, which were done with malice or reckless indifference to Plaintiff Echols’ federally protected rights, Plaintiff Echols is entitled to punitive damages.
COUNT VIII Plaintiff McKinney Claim for Damages 384. Plaintiff McKinney repeats and realleges paragraphs 1 through 10, 18, 21 through
58

Case 3:04-cv-00917-TJC-JRK Document 140 Filed 02/13/06 Page 59 of 65 PageID 1088
82 and 265 through 300. 385. Defendants Rathmann and Crosby violated Plaintiff McKinney’s right to be free
from cruel and unusual punishment, which is guaranteed by the Eighth Amendment. 386. As a result of Defendants’ unconstitutional actions, Plaintiff McKinney has
suffered intense physical pain, redness of the skin and eyes, respiratory distress, a deterioration of his mental health, pain and suffering, mental and emotional distress, humiliation and degradation, and aggravation of previous injuries. Plaintiff McKinney’s injuries are permanent or continue and Plaintiff will suffer further losses in the future.
387. As a further result of Defendants’ acts, which were done with malice or reckless indifference to Plaintiff McKinney’s federally protected rights, Plaintiff McKinney is entitled to punitive damages.
COUNT IX Plaintiff Morgan Claim for Damages 388. Plaintiff Morgan repeats and realleges paragraphs 1 through 10, 19, 21 through 82 and 301 through 331. 389. Defendants Ellis, Green, Rathmann, and Crosby violated Plaintiff Morgan’s right to be free from cruel and unusual punishment, which is guaranteed by the Eighth Amendment. 390. As a result of Defendants’ unconstitutional actions, Plaintiff Morgan has suffered intense physical pain, redness of the skin and eyes, respiratory distress, a deterioration of his mental health, pain and suffering, mental and emotional distress, humiliation and degradation, and aggravation of previous injuries. Plaintiff Morgan’s injuries are permanent or continue and Plaintiff will suffer further losses in the future.
59

Case 3:04-cv-00917-TJC-JRK Document 140 Filed 02/13/06 Page 60 of 65 PageID 1089
391. As a further result of Defendants’ acts, which were done with malice or reckless indifference to Plaintiff Morgan’s federally protected rights, Plaintiff Morgan is entitled to punitive damages.
COUNT X Plaintiff Ward Claim for Damages 392. Plaintiff Ward repeats and realleges paragraphs 1 through 10, 20 through 82 and 332 through 350. 393. Defendants Muse, Rathmann and Crosby violated Plaintiff Ward’s right to be free from cruel and unusual punishment, which is guaranteed by the Eighth Amendment. 394. As a result of Defendants’ unconstitutional actions, Plaintiff Ward is suffering from a chronic respiratory disorder, increased depression related to his mental illness, pain and suffering, mental and emotional distress, humiliation and degradation. 395. Plaintiff Ward’s injuries are permanent or continue and Plaintiff will suffer further losses in the future. 396. As a further result of Defendants’ acts, which were done with malice or reckless indifference to Plaintiff Ward’s federally protected rights, Plaintiff Ward is entitled to punitive damages.
COUNT XI All Plaintiffs Claim for Declaratory and Injunctive Relief 397. Plaintiffs repeat and reallege paragraphs 1-351. 398. Because of Defendant Crosby and other Defendants’ policies and practices, each Plaintiff faces an unconstitutional risk of again being seriously harmed with chemical agents under circumstances similar to those described in this Complaint if he remains at or is returned to
60

Case 3:04-cv-00917-TJC-JRK Document 140 Filed 02/13/06 Page 61 of 65 PageID 1090
Florida State Prison. 399. Unless a declaratory judgment issues stating that these policies, practices and
customs are unlawful and Defendants are enjoined, Defendants Crosby and Rathmann will continue to violate the Eighth Amendment rights of each of the Plaintiffs. These continuing violations constitute an irreparable injury for which each Plaintiff has no adequate remedy at law.
RELIEF REQUESTED WHEREFORE, Plaintiffs request this Court grant the following relief:
A. Plaintiff Thomas, pursuant to Count I, seeks compensatory and punitive damages from Defendants Musselman, Anderson, Clark, Wilson, Muse, Halle, Tricocci, Chastain, Barnett, Barton, Lampp, Whitehurst, Crosby, Redd, and Sapp.
B. Plaintiff Ulrath, pursuant to Count II, seeks compensatory and punitive damages from Defendants Lindsey, Shipley, Ellis, Jarvis, Crosby, Carter, Sapp, Sirmones, Lampp, and Lazenby.
C. Plaintiff Butler, pursuant to Count III, seeks compensatory and punitive damages from Defendants Reeder, Chastain, Clark, Crosby, Redd, and Sapp.
D. Plaintiff Massie, pursuant to Count IV, seeks compensatory and punitive damages from Defendants Green, Clark, Crosby, Redd, Halle, and Sapp.
E. Plaintiff Frazier, pursuant to Count V, seeks compensatory and punitive damages from Defendants Reynolds, Reeder, Lampp, Riggs, Crosby, Redd, and Sapp.
F. Plaintiff Williams, pursuant to Count VI, seeks compensatory and punitive damages from Defendants Reynolds, Crosby, Carter, Sapp, Sirmones, Rizer, Riggs, and
61

Case 3:04-cv-00917-TJC-JRK Document 140 Filed 02/13/06 Page 62 of 65 PageID 1091
Lazenby. G. Plaintiff Echols, pursuant to Count VII, seeks compensatory and punitive
damages from Defendants Rathmann, and Crosby. H. Plaintiff McKinney, pursuant to Count VIII, seeks compensatory and punitive
damages from Defendants Rathmann, and Crosby. I. Plaintiff Morgan, pursuant to Count IX, seeks compensatory and punitive
damages from Defendants Ellis, Green, Rathmann, and Crosby. J. Plaintiff Ward, pursuant to Count X, seeks compensatory and punitive
damages from Defendants Muse, Rathmann, and Crosby. K. Plaintiffs Thomas and Ulrath, pursuant to Counts I and II, seek an injunction
that will prohibit Defendant Crosby as Secretary from transferring them to Florida State Prison. L. All Plaintiffs, pursuant to Counts I-X request that the Court declare that the
unjustified and excessive use of chemical agents at Florida State Prison under the circumstances described in this Complaint violates the Eighth and Fourteenth Amendments to the Constitution of the United States.
M. All Plaintiffs, pursuant to Counts I-X, request that the Court require Defendant Crosby to submit a plan to this Court for approval which will, to the extent possible, prevent chemical agents from being used at Florida State Prison against Plaintiffs maliciously and sadistically for the very purpose of causing harm and not in a good-faith effort to restore order or maintain discipline or for any other legitimate penological reason.
N. Require that the plan submitted to the Court for approval make proper provision to prevent chemical agents being used at Florida State Prison in controlled situations
62

Case 3:04-cv-00917-TJC-JRK Document 140 Filed 02/13/06 Page 63 of 65 PageID 1092
where their use would pose a risk to the mental or physical health of the prisoner. O. Require that the plan submitted to the Court for approval require that all non-
spontaneous uses of chemical agents at Florida State Prison to be videotaped with a hand-held camera with audio.
P. Require that the plan submitted to the Court for approval abolishing all nonspontaneous uses of chemical agents at Florida State Prison on inmates diagnosed with or objectively manifesting the symptoms consistent with a mental illness.
Q. Require that the plan submitted to the Court for approval abolish all nonspontaneous uses of chemical agents at Florida State Prison on inmates with medical conditions, such as asthma, which increase the risk of harm if chemical agents are used.
R. Require that the plan submitted to the Court for approval include provision for the comprehensive training of staff at Florida State Prison in the use of techniques to calm inmates who are upset without the need for any kind of force.
S. Require that the plan submitted to the Court for approval require the use of staff specially trained to defuse confrontations at Florida State Prison prior to the nonspontaneous use of chemical agents.
T. Require that the plan submitted to the Court for approval include provision for adequate and meaningful review and monitoring of all uses of chemical agents at Florida State Prison.
U. Require that the plan submitted to the Court for approval bar the use of CS tear gas and CN tear gas in enclosed spaces such as the segregated housing units at Florida State Prison.
63

Case 3:04-cv-00917-TJC-JRK Document 140 Filed 02/13/06 Page 64 of 65 PageID 1093
V. Require that the plan submitted to the Court require the implementation of proper decontamination procedures at Florida State Prison to reduce the pain and chance of injury after exposure to chemical agents, including but not limited to, access to fresh outside air, cold showers lasting at least 15 minutes, the use of specialized skin products designed for chemical decontamination, and ventilation of the building with fresh air.
W. Require that the plan submitted to the Court require the use of meaningful deescalation techniques at Florida State Prison to insure that chemical agents are truly a last resort, including but not limited to, counseling by mental health staff and high-level supervisors.
X. Enter permanent injunctive relief enjoining Defendant Crosby in his official capacity, his successor in office, and his servants, agents and employees from failing to properly supervise, review and investigate the actions of their subordinates when their subordinates use chemical agents at Florida State Prison.
Y. All Plaintiffs seek attorneys' fees and costs, pursuant to 42 U.S.C. ' 1988. Z. All Plaintiffs seek any other relief as the Court may deem just and proper.
Respectfully submitted, George E. Schulz, Jr., Esq.
Fla. Bar No. 169507 Michael Agliata, Esq. Holland & Knight LLP 50 North Laura Street, Suite 3900 Jacksonville, Florida 32202
(904) 353-2000 (904) 358-1872 (facsimile)
and
64

Case 3:04-cv-00917-TJC-JRK Document 140 Filed 02/13/06 Page 65 of 65 PageID 1094
Cassandra Capobianco, Esq. Lisa White Shirley, Esq.
Christopher M. Jones, Esq. Kristen Cooley Lentz, Esq. Florida Institutional Legal Services
1010-B NW 8th Avenue Gainesville, Florida 32601
352-375-2494 352-271-4366 (Fax)
and Peter M. Siegel, Esq. Randall C. Berg, Esq. Cullin O’ Brien, Esq. Florida Justice Institute, Inc. 2870 Wachovia Financial Center 200 South Biscayne Boulevard Miami, Florida 33131-2310
305-358-2081 305-358-0910 (Fax) Attorneys for Plaintiffs
65

 
 Case: 3:04-cv-917 As of: 09/26/2014 05:10 PM EDT 1 of 60
U.S. District Court Middle District of Florida (Jacksonville) CIVIL DOCKET FOR CASE #: 3:04−cv−00917−TJC−JRK

CLOSED

Butler et al v. McDonough et al Assigned to: Judge Timothy J. Corrigan Referred to: Magistrate Judge James R. Klindt Case in other court: 06−13662−C
09−11658−A Cause: 42:1983 Civil Rights Act
Plaintiff
Sylvester Butler TERMINATED: 05/09/2008

Date Filed: 09/20/2004 Date Terminated: 03/09/2009 Jury Demand: Both Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question
represented by Cassandra Capobianco Florida Institutional Legal Services Suite 412 14260 W Newberry Rd Newberry, FL 32669 352/375−2494 Fax: 352−331−5202 Email: cassandra@floridalegal.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christopher Michael Jones Florida Institutional Legal Services Suite 412 14260 W Newberry Rd Newberry, FL 32669 352/375−2494 Fax: 352/331−5202 Email: christopher@floridalegal.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Cullin Avram O'Brien Robbins Geller Rudman &Dowd, LLP Suite 500 120 E Palmetto Pk Rd Boca Raton, FL 33432 561/750−3000 Fax: 561/750−3364 Email: cobrien@rgrdlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
George E. Schulz , Jr. Holland &Knight, LLP Suite 3900 50 N Laura St Jacksonville, FL 32202 904/353−2000 Fax: 904/358−1872 Email: buddy.schulz@hklaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joshua Aaron Glickman Social Justice Law Collective, PL PO Box 70327 Washington, DC 20024 202−709−5744 Fax: 866−893−0416

Case: 3:04-cv-917 As of: 09/26/2014 05:10 PM EDT 2 of 60
Email: josh@sjlawcollective.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kristen Cooley Lentz Florida Institutional Legal Services Suite 412 14260 W Newberry Rd Newberry, FL 32669 352/375−2494 Fax: 352/331−5202 Email: kristen@floridalegal.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Leon Fresco Senate Judiciary Committee 313 Hart Senate Office Building Washington, DC 20510 202−307−6482 Email: leon.fresco@aya.yale.edu LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lisa White Shirley Simon, Eddins &Greenstone Suite 610 3232 McKinney Ave Dallas, TX 75204 214/276−7680 Fax: 214/276−7699 Email: lshirley@sgpblaw.com TERMINATED: 03/10/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Agliata Holland &Knight, LLP Suite 3900 50 N Laura St Jacksonville, FL 32202 904/353−2000 Fax: 904/358−1872 TERMINATED: 06/11/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Peter Michael Siegel Florida Justice Institute, Inc. 3750 Miami Tower 100 SE 2nd St Miami, FL 33131−2309 305/358−2081 Fax: 305−358−0910 TERMINATED: 07/30/2007 LEAD ATTORNEY
Randall Challen Berg , Jr. Florida Justice Institute, Inc. 3750 Miami Tower 100 SE 2nd St Miami, FL 33131−2309 305/358−2081 Fax: 305/358−0910 Email: rberg@floridajusticeinstitute.org

Case: 3:04-cv-917 As of: 09/26/2014 05:10 PM EDT 3 of 60

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Kelvin Frazier

represented by Cassandra Capobianco (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Christopher Michael Jones (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Cullin Avram O'Brien (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

George E. Schulz , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Joshua Aaron Glickman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kara Coggins Florida Institutional Legal Services Suite 412 14260 W Newberry Rd Newberry, FL 32669 352/375−2494 Fax: 352/271−4366 Email: kcoggins@filsinc.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kristen Cooley Lentz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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

Lisa White Shirley (See above for address) TERMINATED: 03/10/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael Agliata (See above for address) TERMINATED: 06/11/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Peter Michael Siegel (See above for address)

Case: 3:04-cv-917 As of: 09/26/2014 05:10 PM EDT 4 of 60

TERMINATED: 07/30/2007 LEAD ATTORNEY

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

Stephen Focey Hanlon Holland &Knight, LLP Suite 1100 800 17th St NW Washington, DC 20006 202/828−1871 Fax: 202/955−5564 Email: sfh29@law.georgetown.edu LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Curt Massie TERMINATED: 05/28/2008

represented by Cassandra Capobianco (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Christopher Michael Jones (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Cullin Avram O'Brien (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

George E. Schulz , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Joshua Aaron Glickman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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

Kristen Cooley Lentz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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

Lisa White Shirley (See above for address) TERMINATED: 03/10/2006 LEAD ATTORNEY

Case: 3:04-cv-917 As of: 09/26/2014 05:10 PM EDT 5 of 60

ATTORNEY TO BE NOTICED

Michael Agliata (See above for address) TERMINATED: 06/11/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Peter Michael Siegel (See above for address) TERMINATED: 07/30/2007 LEAD ATTORNEY

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

Plaintiff
Jeremiah Thomas TERMINATED: 02/22/2011

represented by Cassandra Capobianco (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Christopher Michael Jones (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Cullin Avram O'Brien (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

George E. Schulz , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Joshua Aaron Glickman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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

Kristen Cooley Lentz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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

Lisa White Shirley (See above for address) TERMINATED: 03/10/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 3:04-cv-917 As of: 09/26/2014 05:10 PM EDT 6 of 60

Plaintiff
Eugene Ulrath TERMINATED: 05/28/2008

Michael Agliata (See above for address) TERMINATED: 06/11/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Peter Michael Siegel (See above for address) TERMINATED: 07/30/2007 LEAD ATTORNEY
Randall Challen Berg , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Cassandra Capobianco (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christopher Michael Jones (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Cullin Avram O'Brien (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
George E. Schulz , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joshua Aaron Glickman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kara Coggins (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kristen Cooley Lentz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Leon Fresco (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lisa White Shirley (See above for address) TERMINATED: 03/10/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 3:04-cv-917 As of: 09/26/2014 05:10 PM EDT 7 of 60

Michael Agliata (See above for address) TERMINATED: 06/11/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Peter Michael Siegel (See above for address) TERMINATED: 07/30/2007 LEAD ATTORNEY

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

Plaintiff Reginald Williams

represented by Cassandra Capobianco (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Christopher Michael Jones (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Cullin Avram O'Brien (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

George E. Schulz , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Joshua Aaron Glickman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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

Kristen Cooley Lentz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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

Lisa White Shirley (See above for address) TERMINATED: 03/10/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael Agliata

Case: 3:04-cv-917 As of: 09/26/2014 05:10 PM EDT 8 of 60

(See above for address) TERMINATED: 06/11/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Peter Michael Siegel (See above for address) TERMINATED: 07/30/2007 LEAD ATTORNEY

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

Stephen Focey Hanlon (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Paul Echols

represented by Cassandra Capobianco (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Christopher Michael Jones (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Cullin Avram O'Brien (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

George E. Schulz , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Joshua Aaron Glickman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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

Kristen Cooley Lentz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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

Lisa White Shirley (See above for address) TERMINATED: 03/10/2006

Case: 3:04-cv-917 As of: 09/26/2014 05:10 PM EDT 9 of 60

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael Agliata (See above for address) TERMINATED: 06/11/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Peter Michael Siegel (See above for address) TERMINATED: 07/30/2007 LEAD ATTORNEY

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

Stephen Focey Hanlon (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Michael McKinney

represented by Cassandra Capobianco (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Christopher Michael Jones (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Cullin Avram O'Brien (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

George E. Schulz , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Joshua Aaron Glickman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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

Kristen Cooley Lentz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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

Case: 3:04-cv-917 As of: 09/26/2014 05:10 PM EDT 10 of 60

Plaintiff
Charles Morgan TERMINATED: 01/09/2009

Lisa White Shirley (See above for address) TERMINATED: 03/10/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Agliata (See above for address) TERMINATED: 06/11/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Peter Michael Siegel (See above for address) TERMINATED: 07/30/2007 LEAD ATTORNEY
Randall Challen Berg , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stephen Focey Hanlon (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Cassandra Capobianco (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christopher Michael Jones (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Cullin Avram O'Brien (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
George E. Schulz , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joshua Aaron Glickman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kara Coggins (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kristen Cooley Lentz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 3:04-cv-917 As of: 09/26/2014 05:10 PM EDT 11 of 60

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

Lisa White Shirley (See above for address) TERMINATED: 03/10/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael Agliata (See above for address) TERMINATED: 06/11/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Peter Michael Siegel (See above for address) TERMINATED: 07/30/2007 LEAD ATTORNEY

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

Plaintiff Antonio Ward

represented by Cassandra Capobianco (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Christopher Michael Jones (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Cullin Avram O'Brien (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

George E. Schulz , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Joshua Aaron Glickman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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

Kristen Cooley Lentz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Leon Fresco

Case: 3:04-cv-917 As of: 09/26/2014 05:10 PM EDT 12 of 60

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

Lisa White Shirley (See above for address) TERMINATED: 03/10/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael Agliata (See above for address) TERMINATED: 06/11/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Peter Michael Siegel (See above for address) TERMINATED: 07/30/2007 LEAD ATTORNEY

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

Stephen Focey Hanlon (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Maxime Jerome Thomas as Personal Representative of Jeremiah Thomas Intestate Estate

represented by Christopher Michael Jones (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

George E. Schulz , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Joshua Aaron Glickman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kristen Cooley Lentz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Marlysha Myrthil US Department of Justice − Civil Division 950 Pennsylvania Ave NW Washington, DC 20530 202−305−3454 Fax: 202−514−4883 Email: marlysha.myrthil@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Randall Challen Berg , Jr. (See above for address)

Case: 3:04-cv-917 As of: 09/26/2014 05:10 PM EDT 13 of 60
LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stephen Focey Hanlon (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Cassandra Capobianco (See above for address)

V. Defendant James McDonough in his official capacity TERMINATED: 04/15/2008
Defendant Bradley Carter in his individual capacity TERMINATED: 05/28/2008

represented by Denis Allen Dean Denis Dean 2945 Golden Eagle Dr E Tallahassee, FL 32312 850/414−3300 ext: 3816 Fax: 850/488−4872 Email: denis.dean@myfloridalegal.com TERMINATED: 05/02/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kathleen M. Savor Office of the Attorney General Suite 1200 110 SE 6th St Ft Lauderdale, FL 33301 561/355−1461 Fax: 561 355−4643 Email: ksavor@mypalmbeachclerk.com TERMINATED: 06/01/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED
William Peter Martin Dennis, Jackson, Martin &Fontela, PA Suite 200 1591 Summit Lake Dr Tallahassee, FL 32317 850/422−3345 Fax: 850/422−1325 Email: peter@djmf−law.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kathleen Marie Von Hoene Office of the Attorney General PL−01 − The Capitol 400 S Monroe St Tallahassee, FL 32399−1050 850−414−3868 Email: Kathleen.VonHoene@myfloridalegal.com ATTORNEY TO BE NOTICED
represented by Denis Allen Dean (See above for address) TERMINATED: 05/02/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 3:04-cv-917 As of: 09/26/2014 05:10 PM EDT 14 of 60

Defendant George Sapp in his individual capacity TERMINATED: 05/28/2008
Defendant Stephen Sirmones in his individual capacity TERMINATED: 08/30/2007

Diane G. Cassaro Diane G. Cassaro, PA Suite 101−150 4320 Deerwood Lake Pkwy Jacksonville, FL 32216 904/762−8899 Fax: 904/647−8454 LEAD ATTORNEY
J. Dixon Bridgers , III Vernis &Bowling of North Florida, PA 4309 Salisbury Rd Jacksonville, FL 32216 904/296−6751 Fax: 904/296−2712 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kathleen M. Savor (See above for address) TERMINATED: 06/01/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Denis Allen Dean (See above for address) TERMINATED: 05/02/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Diane G. Cassaro (See above for address) LEAD ATTORNEY
J. Dixon Bridgers , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kathleen M. Savor (See above for address) TERMINATED: 06/01/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Denis Allen Dean (See above for address) TERMINATED: 05/02/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED
J. Dixon Bridgers , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kathleen M. Savor (See above for address) TERMINATED: 06/01/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 3:04-cv-917 As of: 09/26/2014 05:10 PM EDT 15 of 60

Defendant Joe Lazenby, Jr. in his individual capacity TERMINATED: 08/30/2007
Defendant Allen Clark in his individual capacity TERMINATED: 05/28/2008

represented by Denis Allen Dean (See above for address) TERMINATED: 05/02/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED
J. Dixon Bridgers , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kathleen M. Savor (See above for address) TERMINATED: 06/01/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Denis Allen Dean (See above for address) TERMINATED: 05/02/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED
James Paul Waczewski Luks, Santaniello, Petrillo &Jones, LLC Suite 109 2509 Barrington Circle Tallahassee, FL 32308 850/385−9901 Fax: 850/727−0233 Email: jwaczewski@ls−law.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kathleen M. Savor (See above for address) TERMINATED: 06/01/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nicholas James Christopolis Luks, Santaniello, Petrillo &Jones, LLC Suite 750 255 S Orange Ave Orlando, FL 32801 904/791−9191 Fax: 904/791−9196 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Paul S. Jones Luks, Santaniello, Petrillo &Jones, LLC Suite 750 255 S Orange Ave Orlando, FL 32801 407/540−9170 Email: psj@ls−law.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Todd T. Springer

Case: 3:04-cv-917 As of: 09/26/2014 05:10 PM EDT 16 of 60

Luks, Santaniello, Petrillo &Jones, LLC Suite 1050 301 W Bay St Jacksonville, FL 32202 904/791−9191 Fax: 904/791−9196 Email: tts@ls−law.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Mark Redd in his individual capacity TERMINATED: 08/30/2007

represented by Denis Allen Dean (See above for address) TERMINATED: 05/02/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED

J. Dixon Bridgers , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kathleen M. Savor (See above for address) TERMINATED: 06/01/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Keith Musselman in his individual capacity TERMINATED: 08/30/2007

represented by Denis Allen Dean (See above for address) TERMINATED: 05/02/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED

J. Dixon Bridgers , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kathleen M. Savor (See above for address) TERMINATED: 06/01/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Tony Anderson in his individual capacity TERMINATED: 08/30/2007

represented by Denis Allen Dean (See above for address) TERMINATED: 05/02/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED

J. Dixon Bridgers , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kathleen M. Savor (See above for address) TERMINATED: 06/01/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 3:04-cv-917 As of: 09/26/2014 05:10 PM EDT 17 of 60

Defendant James Wilson in his individual capacity TERMINATED: 07/30/2007
Defendant William Muse in his individual capacity TERMINATED: 08/30/2007
Defendant Colin Halle in his individual capacity TERMINATED: 08/30/2007
Defendant Steven Tricocci in his individual capacity TERMINATED: 08/30/2007

represented by F. Damon Kitchen Constangy, Brooks &Smith, LLP 200 W Forsyth St − Ste 1700 PO Box 41099 Jacksonville, FL 32203 904/356−8900 Fax: 904/356−8200 Email: dkitchen@constangy.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
J. Ray Poole , Jr. Constangy, Brooks &Smith, LLP 200 W Forsyth St − Ste 1700 PO Box 41099 Jacksonville, FL 32203 904/356−8900 Fax: 904/356−8200 Email: rpoole@constangy.com ATTORNEY TO BE NOTICED
represented by Denis Allen Dean (See above for address) TERMINATED: 05/02/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED
J. Dixon Bridgers , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kathleen M. Savor (See above for address) TERMINATED: 06/01/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Denis Allen Dean (See above for address) TERMINATED: 05/02/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED
J. Dixon Bridgers , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kathleen M. Savor (See above for address) TERMINATED: 06/01/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Denis Allen Dean (See above for address) TERMINATED: 05/02/2006

Case: 3:04-cv-917 As of: 09/26/2014 05:10 PM EDT 18 of 60

LEAD ATTORNEY ATTORNEY TO BE NOTICED

J. Dixon Bridgers , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kathleen M. Savor (See above for address) TERMINATED: 06/01/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Tim Chastain in his individual capacity TERMINATED: 08/30/2007

represented by Denis Allen Dean (See above for address) TERMINATED: 05/02/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED

J. Dixon Bridgers , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kathleen M. Savor (See above for address) TERMINATED: 06/01/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Rodney Barnett in his individual capacity TERMINATED: 08/30/2007

represented by Denis Allen Dean (See above for address) TERMINATED: 05/02/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED

J. Dixon Bridgers , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kathleen M. Savor (See above for address) TERMINATED: 06/01/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Ronnie Barton in his individual capacity TERMINATED: 08/30/2007

represented by Denis Allen Dean (See above for address) TERMINATED: 05/02/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED

J. Dixon Bridgers , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kathleen M. Savor

Case: 3:04-cv-917 As of: 09/26/2014 05:10 PM EDT 19 of 60

(See above for address) TERMINATED: 06/01/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Kenneth Lampp in his individual capacity TERMINATED: 08/30/2007

represented by Denis Allen Dean (See above for address) TERMINATED: 05/02/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED

J. Dixon Bridgers , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kathleen M. Savor (See above for address) TERMINATED: 06/01/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Wendell Whitehurst in his individual capacity TERMINATED: 08/30/2007

represented by Denis Allen Dean (See above for address) TERMINATED: 05/02/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED

J. Dixon Bridgers , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kathleen M. Savor (See above for address) TERMINATED: 06/01/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Stacey Green in his individual capacity TERMINATED: 05/28/2008

represented by Denis Allen Dean (See above for address) TERMINATED: 05/02/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Diane G. Cassaro (See above for address) LEAD ATTORNEY

J. Dixon Bridgers , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kathleen M. Savor (See above for address) TERMINATED: 06/01/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 3:04-cv-917 As of: 09/26/2014 05:10 PM EDT 20 of 60

Defendant David Reynolds in his individual capacity TERMINATED: 03/20/2007
Defendant John Riggs in his individual capacity TERMINATED: 03/20/2007
Defendant Glynn Reeder in his individual capacity TERMINATED: 03/20/2007
Defendant John Rizer in his individual capacity TERMINATED: 03/20/2007

represented by Denis Allen Dean (See above for address) TERMINATED: 05/02/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED
J. Dixon Bridgers , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kathleen M. Savor (See above for address) TERMINATED: 06/01/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Denis Allen Dean (See above for address) TERMINATED: 05/02/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED
J. Dixon Bridgers , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kathleen M. Savor (See above for address) TERMINATED: 06/01/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Denis Allen Dean (See above for address) TERMINATED: 05/02/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED
J. Dixon Bridgers , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kathleen M. Savor (See above for address) TERMINATED: 06/01/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Denis Allen Dean (See above for address) TERMINATED: 05/02/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED
J. Dixon Bridgers , III

Case: 3:04-cv-917 As of: 09/26/2014 05:10 PM EDT 21 of 60

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

Kathleen M. Savor (See above for address) TERMINATED: 06/01/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Oscar Shipley in his individual capacity TERMINATED: 05/28/2008

represented by Denis Allen Dean (See above for address) TERMINATED: 04/26/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kathleen M. Savor (See above for address) TERMINATED: 06/01/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael Lee Glass Stone, Glass &Connolly, LLP 3020 Hartley Rd, Ste 250 Jacksonville, FL 32257 904/886−1919 Fax: 904/886−9292 Email: mglass@sgc−attorneys.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Dean Ellis in his individual capacity TERMINATED: 08/30/2007

represented by Denis Allen Dean (See above for address) TERMINATED: 05/02/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED

J. Dixon Bridgers , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kathleen M. Savor (See above for address) TERMINATED: 06/01/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Jeffrey Lindsey in his individual capacity TERMINATED: 08/30/2007

represented by Denis Allen Dean (See above for address) TERMINATED: 05/02/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED

J. Dixon Bridgers , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 3:04-cv-917 As of: 09/26/2014 05:10 PM EDT 22 of 60

Kathleen M. Savor (See above for address) TERMINATED: 06/01/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Billy Jarvis in his individual capacity TERMINATED: 08/30/2007

represented by Denis Allen Dean (See above for address) TERMINATED: 05/02/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED

J. Dixon Bridgers , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kathleen M. Savor (See above for address) TERMINATED: 06/01/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Michael Rathmann in his individual capacity TERMINATED: 05/28/2008

represented by Denis Allen Dean (See above for address) TERMINATED: 05/02/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Diane G. Cassaro (See above for address) LEAD ATTORNEY

J. Dixon Bridgers , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
James V. Crosby, Jr. in his individual capacity TERMINATED: 05/28/2008

represented by Denis Allen Dean (See above for address) TERMINATED: 04/20/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kathleen M. Savor (See above for address) TERMINATED: 06/01/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kevin Anthony Blazs Duval County Courthouse Suite 6133 501 W Adams St Jacksonville, FL 32202 TERMINATED: 06/06/2006 LEAD ATTORNEY

Michael D. Kendall Marks Gray, PA

Case: 3:04-cv-917 As of: 09/26/2014 05:10 PM EDT 23 of 60

1200 Riverplace Blvd − Ste 800 PO Box 447 Jacksonville, FL 32201 904/398−0900 Fax: 904/399−8440 Email: mkendall@marksgray.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ronald S. Wasilenko Marks Gray, PA 1200 Riverplace Blvd − Ste 800 PO Box 447 Jacksonville, FL 32201 904/393−9007 Fax: 904/393−9050 Email: rwasilenko@marksgray.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Randall Bryant in his official capacity TERMINATED: 07/01/2011

represented by Caryl Kilinski Office of the Attorney General PL−01 − The Capitol 400 S Monroe St Tallahassee, FL 32399−1050 850/414−3300 ext: 3632 Fax: 850/488−4872 Email: Caryl_Kilinski@oag.state.fl.us (Inactive) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Charles B Upton , II Upton Law Firm, PL 525 N Calhoun St Tallahassee, FL 32301 (850) 765−0587 Fax: (850) 270−6902 Email: cbu@uptonfirm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Craig D. Feiser City of Jacksonville Office of General Counsel St James Bldg − Suite 480 117 W Duval St Jacksonville, FL 32202 904/630−1834 Fax: 904/630−1316 Email: cfeiser@coj.net LEAD ATTORNEY ATTORNEY TO BE NOTICED

Denis Allen Dean (See above for address) TERMINATED: 01/14/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Scott D. Makar Court of Appeals − 1st District 2000 Drayton Dr

Case: 3:04-cv-917 As of: 09/26/2014 05:10 PM EDT 24 of 60

Tallahassee, FL 32399 850/414−3300 Fax: 850/410−2672 Email: smakar@myfloridalegal.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Susan A. Maher Office of the Attorney General PL−01 − The Capitol 400 S Monroe St Tallahassee, FL 32399−1050 850/414−3300 Fax: 850/488−4872 Email: susan.maher@myfloridalegal.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

William Peter Martin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jonathan P. Sanford Office of the Attorney General PL−01 − The Capitol 400 S Monroe St Tallahassee, FL 32399−1050 850/414−3300 Fax: 850−488−4872 Email: sanford.jonathan@mail.dc.state.fl.us ATTORNEY TO BE NOTICED

Kathleen Marie Von Hoene (See above for address) ATTORNEY TO BE NOTICED

Defendant
Walter A. McNeil Secretary, Department of Corrections TERMINATED: 07/01/2011

represented by Caryl Kilinski (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Charles B Upton , II (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Craig D. Feiser (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kathleen Marie Von Hoene (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Scott D. Makar (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Susan A. Maher

Case: 3:04-cv-917 As of: 09/26/2014 05:10 PM EDT 25 of 60

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

William Peter Martin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Denis Allen Dean (See above for address) TERMINATED: 01/14/2009 ATTORNEY TO BE NOTICED

Jonathan P. Sanford (See above for address) ATTORNEY TO BE NOTICED

Defendant
Edwin G. Buss in his official capacity as Secretary of the Florida Department of Corrections

represented by Susan A. Maher (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Steven Singer in his official capacity as Warden of Florida State Prison

represented by Susan A. Maher (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mediator Terrance E. Schmidt

represented by Terrance E. Schmidt Bledsoe, Schmidt, Moonly, &Roberson, P.A. Riverplace Tower, Suite 1818 1301 Riverplace Blvd. Jacksonville, FL 32207 904/398−1818 PRO SE

Date Filed 09/20/2004
09/21/2004 10/08/2004 10/08/2004 10/08/2004 10/08/2004 10/08/2004

# Docket Text
1 COMPLAINT against all defendants ; JURY DEMAND ( Filing fee $ 150 receipt number J16797), filed by Sylvester Butler, Kelvin Frazier, Curt Massie, Jeremiah Thomas, Eugene Ulrath, Reginald Williams. (Attachments: # 1 PART 2 of complaint)(LPH, ) (Entered: 09/21/2004)
2 NOTICE of designation under Local Rule 3.05 − track 2.Signed by Deputy Clerk on 9/21/2004. (DH, ) (Entered: 09/21/2004)
3 Summons issued as to Jeffrey Lindsey. Consent(s) issued. (MGG) (Entered: 10/12/2004)
4 Summons issued as to Wendell Whitehurst. Consent(s) issued. (MGG) (Entered: 10/12/2004)
5 Summons issued as to Tony Anderson. Consent(s) issued. (MGG) (Entered: 10/12/2004)
6 Summons issued as to Steven Tricocci. Consent(s) issued. (MGG) (Entered: 10/12/2004)
7 Summons issued as to Stacey Green. Consent(s) issued. (MGG) (Entered: 10/12/2004)

Case: 3:04-cv-917 As of: 09/26/2014 05:10 PM EDT 26 of 60

10/08/2004 10/08/2004 10/08/2004 10/08/2004 10/08/2004 10/08/2004 10/08/2004 10/08/2004 10/08/2004 10/08/2004 10/08/2004 10/08/2004 10/08/2004 10/08/2004 10/08/2004 12/22/2004 12/28/2004 12/30/2004 01/12/2005 01/12/2005 01/12/2005 01/12/2005 01/12/2005 01/12/2005

8 Summons issued as to Ronnie Barton. Consent(s) issued. (MGG) (Entered: 10/12/2004)
9 Summons issued as to Rodney Barnett. Consent(s) issued. (MGG) (Entered: 10/12/2004)
10 Summons issued as to Oscar Shipley. Consent(s) issued. (MGG) (Entered: 10/12/2004)
11 Summons issued as to Mark Redd. Consent(s) issued. (MGG) (Entered: 10/12/2004)
12 Summons issued as to Kenneth Lampp. Consent(s) issued. (MGG) (Entered: 10/12/2004)
13 Summons issued as to Keith Musselman. Consent(s) issued. (MGG) (Entered: 10/12/2004)
14 Summons issued as to John Rizer. Consent(s) issued. (MGG) (Entered: 10/12/2004)
15 Summons issued as to John Riggs. Consent(s) issued. (MGG) (Entered: 10/12/2004)
16 Summons issued as to William Muse. Consent(s) issued. (MGG) (Entered: 10/12/2004)
17 Summons issued as to Allen Clark. Consent(s) issued. (MGG) (Entered: 10/12/2004)
18 Summons issued as to Billy Jarvis. Consent(s) issued. (MGG) (Entered: 10/12/2004)
19 Summons issued as to Bradley Carter. Consent(s) issued. (MGG) (Entered: 10/12/2004)
20 Summons issued as to Colin Halle. Consent(s) issued. (MGG) (Entered: 10/12/2004)
21 Summons issued as to George Sapp. Consent(s) issued. (MGG) (Entered: 10/12/2004)
22 Summons issued as to James V. Crosby Jr.. Consent(s) issued. (MGG) (Entered: 10/12/2004)
23 Summons issued as to Stephen Sirmones, James Wilson, Glynn Reeder. Consent(s) issued. (LPH, ) (Entered: 12/23/2004)
24 Summons issued as to Tim Chastain. Consent(s) issued. (LPH, ) (Entered: 12/28/2004)
25 Summons issued as to Dean Ellis. Consent(s) issued. (LPH, ) (Entered: 12/30/2004)
26 RETURN of service executed on 1/11/2005 as to Colin Halle. (JMAP) (Entered: 01/12/2005)
27 RETURN of service executed on 1/11/2005 as to Jeffrey Lindsey. (JMAP) (Entered: 01/12/2005)
28 RETURN of service executed on 1/11/2005 as to Stacey Green. (JMAP) (Entered: 01/12/2005)
29 RETURN of service executed on 1/11/2005 as to Rodney Barnett. (JMAP) (Entered: 01/12/2005)
30 RETURN of service executed on 1/11/2005 as to Steven Tricocci. (JMAP) (Entered: 01/12/2005)
31 RETURN of service executed on 1/11/2005 as to Mark Redd. (JMAP) (Entered: 01/12/2005)

Case: 3:04-cv-917 As of: 09/26/2014 05:10 PM EDT 27 of 60

01/12/2005 01/12/2005 01/12/2005 01/12/2005 01/12/2005 01/12/2005 01/14/2005
01/14/2005 01/14/2005
01/14/2005 01/14/2005 01/14/2005 01/18/2005 01/18/2005 01/18/2005 01/18/2005 01/18/2005 01/18/2005 01/18/2005

32 RETURN of service executed on 1/11/2005 as to Allen Clark. (JMAP) (Entered: 01/12/2005)
33 RETURN of service executed on 1/11/2005 as to Tim Chastain. (JMAP) (Entered: 01/12/2005)
34 RETURN of service executed on 1/11/2005 as to James V. Crosby, Jr. (JMAP) (Entered: 01/12/2005)
35 RETURN of service executed on 1/11/2005 as to Glynn Reeder. (JMAP) (Entered: 01/12/2005)
36 RETURN of service executed on 1/11/2005 as to Wendell Whitehurst. (JMAP) (Entered: 01/12/2005)
37 RETURN of service executed on 1/11/2005 as to George Sapp. (JMAP) (Entered: 01/12/2005)
38 NOTICE by Kelvin Frazier, Curt Massie, Jeremiah Thomas, Sylvester Butler, Eugene Ulrath, Reginald Williams of Filing Executed Waivers of Service of Summons as to Defendants Jarvis, Lazenby, Reynolds, and Rizer (Capobianco, Cassandra) (Entered: 01/14/2005)
39 WAIVER OF SERVICE returned executed by Kelvin Frazier, Curt Massie, Jeremiah Thomas, Sylvester Butler, Eugene Ulrath, Reginald Williams as to Billy Jarvis on December 8, 2004. (Capobianco, Cassandra) (Entered: 01/14/2005)
40 WAIVER OF SERVICE returned executed by Kelvin Frazier, Curt Massie, Jeremiah Thomas, Sylvester Butler, Eugene Ulrath, Reginald Williams as to Joe Lazenby, Jr on November 30, 2004. (Capobianco, Cassandra) (Entered: 01/14/2005)
41 WAIVER OF SERVICE returned executed by Kelvin Frazier, Curt Massie, Jeremiah Thomas, Sylvester Butler, Eugene Ulrath, Reginald Williams as to David Reynolds on November 29, 2004. (Capobianco, Cassandra) (Entered: 01/14/2005)
42 WAIVER OF SERVICE returned executed by Kelvin Frazier, Curt Massie, Jeremiah Thomas, Sylvester Butler, Eugene Ulrath, Reginald Williams as to John Rizer on November 23, 2004. (Capobianco, Cassandra) (Entered: 01/14/2005)
43 RETURN of service executed on 1/13/05 as to Kenneth Lampp. (MGG) (Entered: 01/18/2005)
44 RETURN of service unexecuted by Kelvin Frazier, Curt Massie, Jeremiah Thomas, Sylvester Butler, Eugene Ulrath, Reginald Williams as to James Wilson. (LPH, ) (Entered: 01/19/2005)
45 RETURN of service executed on 1/17/05 by Kelvin Frazier, Curt Massie, Jeremiah Thomas, Sylvester Butler, Eugene Ulrath, Reginald Williams as to Keith Musselman. (LPH, ) (Entered: 01/19/2005)
46 RETURN of service executed on 1/17/05 by Kelvin Frazier, Curt Massie, Jeremiah Thomas, Sylvester Butler, Eugene Ulrath, Reginald Williams as to Dean Ellis. (LPH, ) (Entered: 01/19/2005)
47 RETURN of service executed on 1/14/05 by Kelvin Frazier, Curt Massie, Jeremiah Thomas, Sylvester Butler, Eugene Ulrath, Reginald Williams as to Ronnie Barton. (LPH, ) (Entered: 01/19/2005)
48 RETURN of service executed on 1/14/05 by Kelvin Frazier, Curt Massie, Jeremiah Thomas, Sylvester Butler, Eugene Ulrath, Reginald Williams as to John Riggs. (LPH, ) (Entered: 01/19/2005)
49 RETURN of service executed on 1/17/05 by Kelvin Frazier, Curt Massie, Jeremiah Thomas, Sylvester Butler, Eugene Ulrath, Reginald Williams as to William Muse. (LPH, ) (Entered: 01/19/2005)
50 RETURN of service executed on 1/14/05 by Kelvin Frazier, Curt Massie, Jeremiah Thomas, Sylvester Butler, Eugene Ulrath, Reginald Williams as to Oscar Shipley. (LPH, ) (Entered: 01/19/2005)

Case: 3:04-cv-917 As of: 09/26/2014 05:10 PM EDT 28 of 60

01/18/2005 01/18/2005 01/18/2005 01/21/2005 01/25/2005 01/27/2005
01/27/2005
01/28/2005 01/28/2005 02/03/2005 02/03/2005 02/14/2005 02/14/2005 02/14/2005 02/18/2005 02/18/2005 02/18/2005

51 RETURN of service executed on 1/17/05 by Kelvin Frazier, Curt Massie, Jeremiah Thomas, Sylvester Butler, Eugene Ulrath, Reginald Williams as to Bradley Carter. (LPH, ) (Entered: 01/19/2005)
52 RETURN of service executed on 1/14/05 by Kelvin Frazier, Curt Massie, Jeremiah Thomas, Sylvester Butler, Eugene Ulrath, Reginald Williams as to Stephen Sirmones. (LPH, ) (Entered: 01/19/2005)
53 RETURN of service executed on 1/14/05 by Kelvin Frazier, Curt Massie, Jeremiah Thomas, Sylvester Butler, Eugene Ulrath, Reginald Williams as to Tony Anderson. (LPH, ) (Entered: 01/19/2005)
54 First MOTION to stay Proceedings by James V. Crosby, Jr. (Dean, Denis) (Entered: 01/21/2005)
55 NOTICE of Appearance by Michael Agliata, George E. Schulz, Jr on behalf of all plaintiffs (LPH, ) (Entered: 01/25/2005)
56 First MOTION for Extension of Time to File Response/Reply to Defendants' First Motion to Stay/Abate by Kelvin Frazier, Curt Massie, Jeremiah Thomas, Sylvester Butler, Eugene Ulrath, Reginald Williams. (Capobianco, Cassandra) (Entered: 01/27/2005)
57 First MOTION to extend time to Personally Serve Selected Defendants and Allow Amendment of Summons for Defendants Anderson, Ellis, Lampp, Musselman, Redd, Tricocci, and Whitehurst by Kelvin Frazier, Curt Massie, Jeremiah Thomas, Sylvester Butler, Eugene Ulrath, Reginald Williams. (Capobianco, Cassandra) (Entered: 01/27/2005)
58 ORDER granting 56 Plaintiffs' Stipulated Motion to Enlarge Time to Respond to Defendants' Motion to Stay/Abate. Signed by Judge Marcia Morales Howard on 1/28/2005. (JLW) (Entered: 01/28/2005)
59 ORDER granting 57 Plaintiffs' Stipulated Motion to Enlarge Time to Personally Serve Defendants. Deadline to serve is February 28, 2005. Signed by Judge Marcia Morales Howard on 1/28/2005. (JLW) (Entered: 01/28/2005)
60 ALIAS Summons issued as to Mark Redd, Keith Musselman, Tony Anderson, Steven Tricocci, Kenneth Lampp, Wendell Whitehurst, Dean Ellis. Consent(s) issued.(per order # 59)(LPH, ) (Entered: 02/04/2005)
61 ALIAS Summons issued as to James Wilson. Consent(s) issued. (LPH, ) (Entered: 02/04/2005)
62 RETURN of service (ALIAS summons) executed on 2/11/05 by Kelvin Frazier, Curt Massie, Jeremiah Thomas, Sylvester Butler, Eugene Ulrath, Reginald Williams as to Keith Musselman. (LPH, ) (Entered: 02/15/2005)
63 RETURN of service (ALIAS summons) executed on 2/12/05 by Kelvin Frazier, Curt Massie, Jeremiah Thomas, Sylvester Butler, Eugene Ulrath, Reginald Williams as to Dean Ellis. (LPH, ) (Entered: 02/15/2005)
64 RETURN of service (ALIAS summons) executed on 2/11/05 by Kelvin Frazier, Curt Massie, Jeremiah Thomas, Sylvester Butler, Eugene Ulrath, Reginald Williams as to Kenneth Lampp. (LPH, ) (Entered: 02/15/2005)
65 RETURN of service executed (ALIAS summons) on 2/17/05 by Kelvin Frazier, Curt Massie, Jeremiah Thomas, Sylvester Butler, Eugene Ulrath, Reginald Williams as to Mark Redd. (MGG) (Entered: 02/22/2005)
66 RETURN of service executed (ALIAS summons) on 2/14/05 by Kelvin Frazier, Curt Massie, Jeremiah Thomas, Sylvester Butler, Eugene Ulrath, Reginald Williams as to Wendell Whitehurst. (MGG) (Entered: 02/22/2005)
67 RETURN of service (ALIAS summons) executed on 2/14/05 by Kelvin Frazier, Curt Massie, Jeremiah Thomas, Sylvester Butler, Eugene Ulrath, Reginald Williams as to Steven Tricocci. (MGG) (Entered: 02/22/2005)

Case: 3:04-cv-917 As of: 09/26/2014 05:10 PM EDT 29 of 60

02/18/2005 02/24/2005 03/01/2005 03/08/2005
03/08/2005 03/17/2005 03/22/2005
04/07/2005
04/15/2005 04/15/2005
04/15/2005 04/22/2005 04/25/2005
04/27/2005 05/02/2005 05/03/2005
05/04/2005

68 AFFIDAVIT of Sonja Jeffers, Special Process Server. (MGG) (Entered: 02/22/2005)
69 RETURN of service (alias summons) executed on 2/21/05 by Kelvin Frazier, Curt Massie, Jeremiah Thomas, Sylvester Butler, Eugene Ulrath, Reginald Williams as to Tony Anderson. (LPH, ) (Entered: 02/25/2005)
70 Amended MOTION to stay all proceedings by James V. Crosby, Jr. (Dean, Denis) (Entered: 03/01/2005)
71 RESPONSE to motion re 70 Amended MOTION to stay all proceedings Abate/and Request for Oral Argument filed by Kelvin Frazier, Curt Massie, Jeremiah Thomas, Sylvester Butler, Eugene Ulrath, Reginald Williams. (Schulz, George) (Entered: 03/08/2005)
72 CASE MANAGEMENT REPORT. (Schulz, George) (Entered: 03/08/2005)
73 RETURN of service executed on 3/15/05 by Kelvin Frazier, Curt Massie, Jeremiah Thomas, Sylvester Butler, Eugene Ulrath, Reginald Williams as to James Wilson. (LPH, ) (Entered: 03/17/2005)
74 NOTICE of Hearing on Motion 70 Amended Motion to Stay all proceedings and case scheduling: Hearing set for 4/7/2005 03:30 PM in Courtroom 10 B before Judge Timothy J. Corrigan. Plaintiff shall coordinate the conference call. See Notice for further details(DH, ) (Entered: 03/22/2005)
75 MINUTE ENTRY for proceedings held before Judge Timothy J. Corrigan : Telephonic Motion Hearing held on 4/7/2005 re 70 Amended MOTION to stay all proceedings filed by James V. Crosby, Jr. Order to enter. Court Reporter: Shannon Bishop (DH ) Modified on 4/8/2005 (LPH, ). (Entered: 04/08/2005)
76 ORDER denying without prejudice 70 Motion to stay . Signed by Judge Timothy J. Corrigan on 4/14/2005. (DH, ) (Entered: 04/15/2005)
77 CASE MANAGEMENT AND SCHEDULING ORDER: Amended Pleadings due by 8/31/2005. Joinder of Parties due by 8/31/2005. Discovery due by 4/28/2006. Dispositive motions due by 5/31/2006. Pretrial statement due by 9/12/2006. Final Pretrial Conference set for 9/18/2006 02:00 PM in Courtroom 10 B before Judge Timothy J. Corrigan. Jury Trial set for 10/2/2006 − 10/20/2006 trial term 09:00 AM in Courtroom 10 B before Judge Timothy J. Corrigan.Signed by Judge Timothy J. Corrigan on 4/14/2005. (DH, ) Modified on 4/18/2005 (DH, ). (Entered: 04/15/2005)
78 ORDER directing plaintiffs to advise the Court by May 13, 2005 of the mediator the parties have selected.Signed by Judge Timothy J. Corrigan on 4/14/2005. (DH ) (Entered: 04/15/2005)
79 ANSWER to complaint by James V. Crosby, Jr.(Dean, Denis) (Entered: 04/22/2005)
80 INTERESTED PERSONS ORDER. Certificate of Interested Persons and Corporate Disclosure Statements due within fourteen (14) days from the date of the order. Signed by Judge Marcia Morales Howard on 4/25/2005. (JLW) (Entered: 04/25/2005)
81 STANDING ORDER − Filing of Documents that Exceed Twenty−Five Pages. Signed by all Jacksonville Judges on 04/27/05(jkl) (Entered: 05/02/2005)
82 Unopposed MOTION for extension of time to file answer or otherwise plead by James Wilson. (Poole, J.) (Entered: 05/02/2005)
83 ORDER granting 82 Defendant James Wilson's Unopposed Motion for Enlargement of Time to Respond to Plaintiffs' Complaint. Defendant James Wilson's answer due May 25, 2005. Signed by Judge Marcia Morales Howard on 5/3/2005. (JLW) (Entered: 05/03/2005)
84 CERTIFICATE of interested persons and corporate disclosure statement by Reginald Williams. (Schulz, George) (Entered: 05/04/2005)

Case: 3:04-cv-917 As of: 09/26/2014 05:10 PM EDT 30 of 60

05/06/2005 05/06/2005
05/06/2005 05/06/2005 05/10/2005 05/10/2005 05/11/2005 05/12/2005 05/16/2005
05/17/2005 05/17/2005 05/19/2005

85 CERTIFICATE of interested persons and corporate disclosure statement re 80 Interested persons order by James V. Crosby, Jr. (Dean, Denis) (Entered: 05/06/2005)
86 MOTION for attorney fees relating to the preparation of this Motion and, MOTION for taxation of costs relating to Defendant's Failure to Waive Formal Service of Process, and Supporting Memorandum of Law by Kelvin Frazier, Curt Massie, Jeremiah Thomas, Sylvester Butler, Eugene Ulrath, Reginald Williams. (Attachments: # 1 Exhibit −B−# 2 Exhibit −C−# 3 Exhibit −D−# 4 Exhibit −E−)(Schulz, George) (Entered: 05/06/2005)
87 NOTICE by Kelvin Frazier, Curt Massie, Jeremiah Thomas, Sylvester Butler, Eugene Ulrath, Reginald Williams Of Filing Composite Exhibit "A" to Motion for Attorney Fees Relating to the Preparation of the Motion and, Motion for Taxation of Costs Relating to Defendant's Failure to Waive Formal Service of Process, and Supporting Memorandum of Law (Schulz, George) (Entered: 05/06/2005)
90 APPENDIX re 87 Notice by Kelvin Frazier, Curt Massie, Jeremiah Thomas, Sylvester Butler, Eugene Ulrath, Reginald Williams. (Attachments: # 1 Exhibit A part 1# 2 Exhibit A part 2# 3 Exhibit A part 3# 4 Exhibit A part 4# 5 Exhibit A part 5)(MGG) (Entered: 05/10/2005)
88 MOTION for referral to mediation Stipulated Request by the Parties to Select The Honorable Gerald T. Wetherington as Mediator Herein by Sylvester Butler. (Attachments: # 1 Exhibit CV Wetherington)(Schulz, George) (Entered: 05/10/2005)
89 CERTIFICATE of interested persons and corporate disclosure statement by James Wilson. (Poole, J.) (Entered: 05/10/2005)
91 AMENDED COMPLAINT Stipulated Motion, with Rule 3.01(g) Certification, to Amend Complaint and Memorandum of Law in Support Thereof against all defendants, filed by Sylvester Butler. (Attachments: # 1 Exhibit Amended Complaint)(Schulz, George) Modified on 5/12/2005 (PAM). (Amended Complaint Incorrectly Filed See Doc. 92 ) (Entered: 05/11/2005)
92 Stipulated Motion, With Rule 3.01(G) Certification, to Amend 1 Complaint and Memorandum of Law in Support Thereof by Sylvester Butler. (Attachments: # 1 Exhibit Amended Complaint)(Schulz, George) Modified on 5/12/2005 (PAM ). (Entered: 05/12/2005)
93 RESPONSE in opposition re 86 MOTION for attorney fees relating to the preparation of this Motion and MOTION for taxation of costs relating to Defendant's Failure to Waive Formal Service of Process, and Supporting Memorandum of Law MOTION for taxation of costs relating to Defendant's Failure to Waive Formal Service of Process, and Supporting Memorandum of Law filed by James V. Crosby, Jr. (Attachments: # 1)(Dean, Denis) (Entered: 05/16/2005)
94 ORDER granting 92 Plaintiffs' Stipulated Motion, with Rule 3.01(g) Certification, to Amend Complaint. The Clerk of the Court is directed to file Plaintiffs' Amended Complaint and Jury Demand which is attached as Exhibit A to the Motion. Signed by Judge Marcia Morales Howard on 5/17/2005. (JLW) (Entered: 05/17/2005)
95 ORDER referring case to mediation and appointing Hon. Gerald T. Wetherington as mediator in this action.Signed by Judge Timothy J. Corrigan on 5/17/2005. (Attachments: # 1 # 2)(DH, ) (Entered: 05/17/2005)
96 AMENDED COMPLAINT against James V. Crosby, Jr, Bradley Carter, George Sapp, Stephen Sirmones, Joe Lazenby, Jr, Allen Clark, Mark Redd, Keith Musselman, Tony Anderson, James Wilson, William Muse, Colin Halle, Steven Tricocci, Tim Chastain, Rodney Barnett, Ronnie Barton, Kenneth Lampp, Wendell Whitehurst, Stacey Green, David Reynolds, John Riggs, Glynn Reeder, John Rizer, Oscar Shipley, Dean Ellis, Jeffrey Lindsey, Billy Jarvis, filed by Kelvin Frazier, Curt Massie, Jeremiah Thomas, Sylvester Butler, Eugene Ulrath, Reginald Williams.(JMAP, ) (Entered: 05/19/2005)

Case: 3:04-cv-917 As of: 09/26/2014 05:10 PM EDT 31 of 60

05/20/2005
05/23/2005 05/24/2005
05/25/2005
05/25/2005 05/26/2005 06/01/2005 06/01/2005 06/09/2005 06/15/2005 06/17/2005 06/17/2005 06/21/2005 06/21/2005 06/22/2005 06/24/2005

97 MOTION for leave to file Reply in Support of Verified Motion for Award of Costs Relating to Defendants' Failure to Waive Formal Service of Process and Attorneys' Fees Relating to the Preparation of This Motion and Supporting Memorandum of Law Rule 3.01(G) Certification Stipulated Motion by Sylvester Butler. (Attachments: # 1)(Schulz, George) (Entered: 05/20/2005)
98 ANSWER to amended complaint by James V. Crosby, Jr.(Dean, Denis) (Entered: 05/23/2005)
99 ORDER granting 97 Plaintiffs' Stipulated Motion for Leave to File Reply. The Clerk of the Court is directed to file Plaintiffs' Reply in Support of Verified Motion for Award of Costs Relating to Defendants' Failure to Waive Formal Service of Process and Attorneys' Fees Relating to the Preparation of this Motion which is attached as Exhibit A to the Motion. Signed by Judge Marcia Morales Howard on 5/24/2005. (JLW) (Entered: 05/24/2005)
100 REPLY to response to motion re 86 MOTION for attorney fees relating to the preparation of this Motion and MOTION for taxation of costs relating to Defendant's Failure to Waive Formal Service of Process, and Supporting Memorandum of Law filed by Sylvester Butler. (KS) Modified on 5/26/2005 to edit docket text(KS). (Entered: 05/25/2005)
101 MOTION to dismiss Amended Complaint by James Wilson. (Poole, J.) (Entered: 05/25/2005)
102 NOTICE by James Wilson of Filing Affidavit in Support of 101 Motion to Dismiss Pursuant to Rules 4(m) and 12(b)(5) (Attachments: # 1 Affidavit in Support of Motion To Dismiss)(Poole, J.) Modified on 5/27/2005 to create document relationship to motion to dismiss (SMS). (Entered: 05/26/2005)
103 MOTION to stay Discovery and Supporting Memorandum of Law by James Wilson. (Poole, J.) (Entered: 06/01/2005)
104 NOTICE of change of address by J. Ray Poole, Jr (Poole, J.) (Entered: 06/01/2005)
105 RESPONSE in opposition re 101 MOTION to dismiss Amended Complaint by Defendant Wilson filed by Kelvin Frazier, Curt Massie, Jeremiah Thomas, Sylvester Butler, Eugene Ulrath, Reginald Williams. (Capobianco, Cassandra) (Entered: 06/09/2005)
106 RESPONSE in opposition re 103 MOTION to stay Discovery and Supporting Memorandum of Law by Defendant Wilson filed by Kelvin Frazier, Curt Massie, Jeremiah Thomas, Sylvester Butler, Eugene Ulrath, Reginald Williams. (Capobianco, Cassandra) (Entered: 06/15/2005)
107 Unopposed MOTION for leave to file Motion to File Reply to Plaintiffs' Response to Motion to Dismiss by James Wilson. (Attachments: # 1 Exhibit Reply)(Poole, J.) (Entered: 06/17/2005)
108 NOTICE of Appearance by F. Damon Kitchen on behalf of James Wilson (Poole, J.) Modified on 6/20/2005 to modify text (JLM, ). (Entered: 06/17/2005)
109 ORDER denying 103 Defendant James Wilson's Motion to Stay Discovery. Signed by Judge Timothy J. Corrigan on 6/21/2005.(SRW) (Entered: 06/21/2005)
110 ENDORSED ORDER granting 107 Motion for leave to file reply; defendant Wilson is directed to file the reply currently attached as an exhibit to the motion. Signed by Judge Timothy J. Corrigan on 6/21/2005. (SRW) (Entered: 06/21/2005)
111 REPLY to response to motion re 101 MOTION to dismiss Amended Complaint to Plaintiffs' Response to Motion to Dismiss filed by James Wilson. (Poole, J.) Modified on 6/27/2005 to correct document relationship (SMS). (Entered: 06/22/2005)
112 ORDER granting, in part, and denying, in part 86 Plaintiffs' Verified Motion for Award of Costs Relating to Defendants' Failure to Waive Formal Service of Process and Attorneys' Fees. Signed by Judge Marcia Morales Howard on 6/24/2005. (JLW) (Entered: 06/24/2005)

Case: 3:04-cv-917 As of: 09/26/2014 05:10 PM EDT 32 of 60

08/08/2005 08/11/2005 08/11/2005 08/11/2005 08/31/2005 09/01/2005 09/09/2005 09/12/2005 09/13/2005 09/19/2005 09/30/2005 10/19/2005
10/31/2005 11/10/2005 11/30/2005 12/09/2005

113 Consent MOTION to extend time to Complete Mediation and for Substitution of Mediator by Kelvin Frazier, Curt Massie, Jeremiah Thomas, Sylvester Butler, Eugene Ulrath. (Agliata, Michael) (Entered: 08/08/2005)
114 ORDER granting 113 Motion to extend time to complete mediation and for substitution of mediator. Signed by Judge Timothy J. Corrigan on 8/11/2005. (DH ) (Entered: 08/11/2005)
115 AMENDED ORDER appointing Terrance E. Schmidt, Esquire as mediator in this action. The mediation conference shall occur no later than December 31, 2005.Signed by Judge Timothy J. Corrigan on 8/11/2005. (Attachments: # 1 # 2)(DH) (Entered: 08/11/2005)
116 NOTICE of Appearance by Kathleen M. Savor on behalf of James V. Crosby, Jr (Savor, Kathleen) (Entered: 08/11/2005)
117 MOTION to extend time to seek amendments and third−party practice by Kelvin Frazier, Curt Massie, Jeremiah Thomas, Sylvester Butler, Eugene Ulrath, Reginald Williams. (Agliata, Michael) (Entered: 08/31/2005)
118 ORDER taking under advisement 117 Plaintiffs' Motion for Enlargement of Time to Seek Amendments and Third−Party Practice. Defendant James Wilson shall file his response to the motion by the close of business on September 9, 2005. Signed by Judge Marcia Morales Howard on 9/1/2005. (JLW) (Entered: 09/01/2005)
119 RESPONSE in opposition re 117 MOTION to extend time to seek amendments and third−party practice filed by James Wilson. (Attachments: # 1 Appendix Index# 2 # 3 # 4 # 5)(Poole, J.) (Entered: 09/09/2005)
120 MOTION to modify Mediation Procedures by James V. Crosby, Jr. (Dean, Denis) Modified on 9/13/2005 to edit docket text (SMS). (Entered: 09/12/2005)
121 ORDER granting 117 Plaintiffs' Motion for Enlargement of Time to Seek Amendments and Third Party Practice. The parties shall have until September 30, 2005 to amend their pleadings and join additional parties. Signed by Judge Marcia Morales Howard on 9/13/2005. (JLW) (Entered: 09/13/2005)
122 ORDER granting 120 Motion to modify mediation procedures. Defendants listed in the order are excused from attending the mediation conference. Signed by Judge Marcia Morales Howard on September 19, 2005. (MK) (Entered: 09/20/2005)
123 Joint MOTION to amend/correct Case Management and Scheduling Order by Kelvin Frazier, Curt Massie, Jeremiah Thomas, Sylvester Butler, Eugene Ulrath, Reginald Williams. (Agliata, Michael) (Entered: 09/30/2005)
124 AMENDED CASE MANAGEMENT AND SCHEDULING ORDER:, Motion Granted: 123 Joint MOTION to amend/correct Case Management and Scheduling Order filed by Reginald Williams,, Kelvin Frazier,, Sylvester Butler,, Curt Massie,, Jeremiah Thomas,, Eugene Ulrath,. Amended Pleadings due by 11/30/2005. Joinder of Parties due by 11/30/2005. Discovery due by 7/31/2006. Dispositive motions due by 8/31/2006. Pretrial statement due by 12/12/2006. Final Pretrial Conference set for 12/18/2006 02:00 PM in Courtroom 10 B before Judge Timothy J. Corrigan. Jury Trial set for 1/3/2007 − 1/19/2007 trial term 09:00 AM in Courtroom 10 B before Judge Timothy J. Corrigan.Signed by Judge Timothy J. Corrigan on 10/19/2005. (DH, ) (Entered: 10/19/2005)
125 Consent MOTION to extend time to mediate by Kelvin Frazier, Curt Massie, Jeremiah Thomas, Sylvester Butler, Eugene Ulrath, Reginald Williams. (Capobianco, Cassandra) (Entered: 10/31/2005)
126 ORDER granting 125 Motion to extend time . Signed by Judge Timothy J. Corrigan on 11/10/2005. (JMAP) (Entered: 11/10/2005)
127 MOTION for leave to file Second Amended Complaint by all plaintiffs. (Attachments: # 1 Exhibit)(Lentz, Kristen) (Entered: 11/30/2005)
128 MEMORANDUM in opposition re 127 Motion for leave to file Second Amended Complaint filed by James V. Crosby, Jr. (Dean, Denis) (Entered: 12/09/2005)

Case: 3:04-cv-917 As of: 09/26/2014 05:10 PM EDT 33 of 60

12/14/2005 12/14/2005
12/16/2005 12/22/2005
12/22/2005 12/28/2005 02/08/2006
02/08/2006 02/09/2006 02/09/2006 02/13/2006 02/13/2006 02/14/2006
02/14/2006 02/17/2006 02/21/2006 02/22/2006

129 RESPONSE in opposition re 127 MOTION for leave to file Second Amended Complaint filed by James Wilson. (Poole, J.) (Entered: 12/14/2005)
130 Plaintiffs MOTION for leave to file Reply to Defendants Memorandum Opposing Plaintiffs Motion for Leave to Amend Complaint, with Rule 3.01(g) Certification, Supporting Memorandum of Law and Request for Oral Argument (Capobianco, Cassandra) Modified on 12/15/2005 to edit text(JLM, ). (Entered: 12/14/2005)
131 ORDER granting, in part, and taking under advisement, in part 130 Plaintiffs' Motion for Leave to File Reply and for Oral Argument. Signed by Judge Marcia Morales Howard on 12/16/2005. (JLW) (Entered: 12/16/2005)
132 REPLY to response to motion re 127 MOTION for leave to file Second Amended Complaint − Plaintiffs' Reply in Support of Motion for Leave to File Second Amended Complaint filed by Sylvester Butler. (Attachments: # 1 Exhibit A through U# 2 Supplement Notice of Filing Composit Exhibit "V")(Agliata, Michael) (Entered: 12/22/2005)
133 NOTICE of filing composite exhibit "V" by Plaintiffs re 132 Reply to response to motion, (Attachments: # 1 Exhibit part 1# 2 Exhibit part 2)(MGG) (Entered: 12/23/2005)
134 MOTION Approval of Confidentiality Agreement by James V. Crosby, Jr. (Attachments: # 1)(Dean, Denis) (Entered: 12/28/2005)
135 ORDER granting 127 Plaintiffs' Motion for Leave to File Second Amended Complaint. Plaintiffs shall file their Second Amended Complaint on or before February 16, 2006. To the extent 130 Plaintiffs' Motion for Leave to File Reply and Request for Oral Argument, seeks oral argument on Plaintiffs' Motion for Leave to File Second Amended Complaint, it is denied. Signed by Judge Marcia Morales Howard on 2/8/2006. (JLW) (Entered: 02/08/2006)
136 THIRD AGREED MOTION to Continue Mediation by James V. Crosby, Jr. (Dean, Denis) Modified on 2/9/2006 (PAM). (Entered: 02/08/2006)
137 ORDER granting, as modified 134 Defendants' Unopposed Motion for Approval of Confidentiality Agreement. Signed by Judge Marcia Morales Howard on 2/9/2006. (JLW) (Entered: 02/09/2006)
138 CONFIDENTIALITY AGREEMENT. Signed by Judge Marcia Morales Howard on 2/9/2006. (JLW) (Entered: 02/09/2006)
139 NOTICE by Kelvin Frazier, Curt Massie, Jeremiah Thomas, Sylvester Butler, Eugene Ulrath, Reginald Williams of Filing Second Amended Complaint (Capobianco, Cassandra) (Entered: 02/13/2006)
140 SECOND AMENDED COMPLAINT Against All Defendants, Filed by All Plaintiffs.(Capobianco, Cassandra) Modified on 2/13/2006 (PAM) (Entered: 02/13/2006)
141 NOTICE by Kelvin Frazier, Curt Massie, Jeremiah Thomas, Sylvester Butler, Eugene Ulrath, Reginald Williams, Paul Echols, Michael McKinney, Charles Morgan, Antonio Ward of Filing Corrected Second Amended Complaint (Capobianco, Cassandra) (Entered: 02/14/2006)
142 SECOND AMENDED COMPLAINT Minor Corrections Against all Defendants, filed by All Plaintiffs.(Capobianco, Cassandra) Modified on 2/15/2006 (PAM ) (Entered: 02/14/2006)
143 UNOPPOSED MOTION for Cullin Avram O'Brien to Withdraw as Attorney by Sylvester Butler. (O'Brien, Cullin) Modified on 2/21/2006 (PAM ) (Entered: 02/17/2006)
144 ORDER denying without prejudice 143 Motion to withdraw as attorney. Signed by Judge Marcia Morales Howard on 2/21/2006. (JLW) (Entered: 02/21/2006)
145 MOTION to dismiss Plaintiffs' Second Amended Complaint by James Wilson. (Poole, J.) (Entered: 02/22/2006)

Case: 3:04-cv-917 As of: 09/26/2014 05:10 PM EDT 34 of 60

02/23/2006 02/24/2006 02/24/2006 02/28/2006
03/01/2006 03/01/2006 03/02/2006
03/03/2006 03/03/2006 03/03/2006 03/08/2006 03/08/2006 03/08/2006
03/08/2006
03/09/2006 03/10/2006
03/13/2006

146 AMENDED UNOPPOSED MOTION to Withdraw as Counsel by all Plaintiffs. (O'Brien, Cullin) Modified on 2/24/2006 (PAM ). Modified on 3/1/2006 (PAM )(Withdrawn Per Order Doc. 149) (Entered: 02/23/2006)
147 SECOND MOTION to amend/correct motion to withdaw as counsel by all plaintiffs. (O'Brien, Cullin) Modified on 2/24/2006 (PAM ). Modified on 3/1/2006 (PAM )(Withdrawn Per Order Doc. # 149) (Entered: 02/24/2006)
148 THIRD MOTION to amend/correct motion to withdraw by all plaintiffs. (O'Brien, Cullin) Modified on 2/24/2006 (PAM) (Entered: 02/24/2006)
149 ORDER granting 148 Amended Motion to Withdraw. Plaintiffs' Amended Unopposed Motion to Withdraw as Counsel (Doc. No. 146) and Plaintiffs' Motion to Withdraw Docket Entry 145 (Doc. No. 147) are withdrawn. Signed by Judge Marcia Morales Howard on 2/28/2006. (JLW) (Entered: 02/28/2006)
150 MOTION for Preliminary Injunction by Kelvin Frazier. (PAM )(Titled Memorandum of Law In Support of Their Motion for Preliminary Injunction) (Entered: 03/01/2006)
151 DECLARATION of Kelvin Frazier re 150 MOTION for Preliminary Injunction (PAM ) (Entered: 03/01/2006)
152 WAIVER OF SERVICE returned executed on February 16, 2006 by Kelvin Frazier, Curt Massie, Jeremiah Thomas, Sylvester Butler, Eugene Ulrath, Paul Echols, Michael McKinney, Charles Morgan, Antonio Ward. Waiver of Service sent on February 15, 2006 as to Michael Rathmann. (Attachments: # 1)(Capobianco, Cassandra) (Entered: 03/02/2006)
153 MOTION to dismiss Second Amended Complaint by James V. Crosby, Jr. (Dean, Denis) (Entered: 03/03/2006)
154 ORDER denying without prejudice 150 Motion for preliminary injunction; with further directions to counsel for defendants. Signed by Judge Timothy J. Corrigan on 3/3/2006.(SRW) (Entered: 03/03/2006)
155 ORDER granting 136 Motion to continue . Signed by Judge Timothy J. Corrigan on 3/3/2006. (JMAP) (Entered: 03/03/2006)
156 Unopposed MOTION for to withdraw as attorney by all plaintiffs. (Shirley, Lisa) (Entered: 03/08/2006)
157 Amended Unopposed MOTION for to withdraw as attorney by all plaintiffs. (Shirley, Lisa) Modified on 3/9/2006 as to docket text only (MGG). (Entered: 03/08/2006)
158 NOTICE by Kelvin Frazier, Curt Massie, Jeremiah Thomas, Sylvester Butler, Eugene Ulrath, Reginald Williams, Paul Echols, Michael McKinney, Charles Morgan, Antonio Ward of Substitution of Party (Capobianco, Cassandra) (Entered: 03/08/2006)
159 RESPONSE in opposition re 145 MOTION to dismiss Plaintiffs' Second Amended Complaint adopting D.E. 105 filed by Kelvin Frazier, Curt Massie, Jeremiah Thomas, Sylvester Butler, Eugene Ulrath, Reginald Williams, Paul Echols, Michael McKinney, Charles Morgan, Antonio Ward. (Capobianco, Cassandra) (Entered: 03/08/2006)
160 AFFIDAVIT of Kelvin Frazier, filed pro se by Kelvin Frazier. (SPW) Modified on 3/13/2006 (PAM )(Stricken Per Order Doc, # 162) (Entered: 03/09/2006)
161 ORDER granting 157 Amended Unopposed Motion to Withdraw as Counsel for Plaintiffs and denying as moot 156 Unopposed Motion to Withdraw as Counsel for Plaintiffs. Signed by Judge Marcia Morales Howard on 3/10/2006. (JLW) (Entered: 03/10/2006)
162 ORDER to Strike: The Document 160 Affidavit filed by Kelvin Frazier is Stricken and the Clerk is directed to delete the document. Signed by Judge Timothy J. Corrigan on 3/10/2006. (PAM ) (Entered: 03/13/2006)

Case: 3:04-cv-917 As of: 09/26/2014 05:10 PM EDT 35 of 60

03/16/2006
03/17/2006
03/30/2006 03/31/2006 04/04/2006 04/04/2006 04/05/2006 04/06/2006 04/13/2006
04/18/2006
04/20/2006 04/21/2006
04/24/2006 04/24/2006 04/24/2006 04/26/2006 04/27/2006

163 NOTICE by Kelvin Frazier, Curt Massie, Jeremiah Thomas, Sylvester Butler, Eugene Ulrath, Reginald Williams, Paul Echols, Michael McKinney, Charles Morgan, Antonio Ward of Substitution of Party (Capobianco, Cassandra) (Entered: 03/16/2006)
164 RESPONSE in opposition re 153 MOTION to dismiss Second Amended Complaint filed by Kelvin Frazier, Curt Massie, Jeremiah Thomas, Sylvester Butler, Eugene Ulrath, Reginald Williams, Paul Echols, Michael McKinney, Charles Morgan, Antonio Ward. (Capobianco, Cassandra) (Entered: 03/17/2006)
165 NOTICE of Appearance by William Peter Martin on behalf of James McDonough (Martin, William) (Entered: 03/30/2006)
166 MOTION for protective order by James V. Crosby, Jr. (Dean, Denis) (Entered: 03/31/2006)
167 MOTION re 154 Order on motion for preliminary injunction by Kelvin Frazier. (PAM ) Modified on 4/6/2006 (PAM )(Stricken Per Order No. 170) (Entered: 04/04/2006)
168 DECLARATION of Kelvin Frazier re 167 MOTION re 154 Order on motion for preliminary injunction by Kelvin Frazier. (PAM ) Modified on 4/6/2006 (PAM )(Stricken Per Order No. 170) (Entered: 04/04/2006)
169 MOTION for Denis Dean to withdraw as attorney by all defendants. (Dean, Denis) (Entered: 04/05/2006)
170 ORDER to Strike re: 167 Motion by Kelvin Frazier and 168 Declaration filed by Kelvin Frazier, and the Clerk is directed to delete the documents. Signed by Judge Timothy J. Corrigan on 4/5/2006. (PAM ) (Entered: 04/06/2006)
171 RESPONSE in opposition re 166 MOTION for protective order filed by Kelvin Frazier, Curt Massie, Jeremiah Thomas, Sylvester Butler, Eugene Ulrath, Reginald Williams, Paul Echols, Michael McKinney, Charles Morgan, Antonio Ward. (Capobianco, Cassandra) (Entered: 04/13/2006)
172 RESPONSE to motion re 169 MOTION for Denis Dean to withdraw as attorney filed by Kelvin Frazier, Curt Massie, Jeremiah Thomas, Sylvester Butler, Eugene Ulrath, Reginald Williams, Paul Echols, Michael McKinney, Charles Morgan, Antonio Ward. (Capobianco, Cassandra) (Entered: 04/18/2006)
173 NOTICE Substitution and Appearance of Counsel by Kevin Anthony Blazs on behalf of James V. Crosby, Jr. (PAM ) (Entered: 04/20/2006)
174 NOTICE of Appearance by J. Dixon Bridgers, III on behalf of Bradley Carter, George Sapp, Stephen Sirmones, Michael Rathmann, Joe Lazenby, Jr, Mark Redd, Keith Musselman, Tony Anderson, William Muse, Colin Halle, Steven Tricocci, Tim Chastain, Rodney Barnett, Ronnie Barton, Kenneth Lampp, Wendell Whitehurst, Stacey Green, David Reynolds, John Riggs, Glynn Reeder, John Rizer, Dean Ellis, Jeffrey Lindsey, Billy Jarvis (Bridgers, J.) (Entered: 04/21/2006)
175 NOTICE of Appearance by Michael Lee Glass on behalf of Oscar Shipley (PAM) (Entered: 04/24/2006)
176 NOTICE of Appearance by Paul S. Jones on behalf of Allen Clark (Jones, Paul) (Entered: 04/24/2006)
177 NOTICE by James McDonough Request for Case Management Conference (Martin, William) (Entered: 04/24/2006)
178 STIPULATION for Substitution of Counsel by Oscar Shipley. (PAM ) (Entered: 04/26/2006)
179 RESPONSE re 177 Notice (Other) Request for Case Management Conference filed by Kelvin Frazier, Curt Massie, Jeremiah Thomas, Sylvester Butler, Eugene Ulrath, Reginald Williams, Paul Echols, Michael McKinney, Charles Morgan, Antonio Ward. (Capobianco, Cassandra) (Entered: 04/27/2006)

Case: 3:04-cv-917 As of: 09/26/2014 05:10 PM EDT 36 of 60

04/28/2006
05/02/2006 05/09/2006 05/10/2006 05/11/2006 05/11/2006 05/16/2006 05/24/2006 05/26/2006
06/01/2006 06/01/2006 06/01/2006 06/06/2006
06/08/2006 06/09/2006 06/14/2006 06/19/2006 06/20/2006 06/28/2006

180 ORDER setting cases for hearing on [145, 153] motions to dismiss, for case management conference and status on June 1, 2006 at 2:00 p.m., Courtroom 10B.Signed by Judge Timothy J. Corrigan on 4/28/2006. (SRW) Modified on 5/1/2006 (PAM) (Entered: 04/28/2006)
181 ORDER granting 169 Motion to withdraw as attorney. Signed by Judge Marcia Morales Howard on 5/2/2006. (JLW) (Entered: 05/02/2006)
182 MOTION for leave to file Amended Motion to Dismiss by James McDonough, Randall Bryant. (Attachments: # 1)(Martin, William) (Entered: 05/09/2006)
183 NOTICE by James McDonough and Randall Bryant (Martin, William) (Entered: 05/10/2006)
184 ORDER granting 182 Defendants McDonough and Bryant's Motion for leave to file amended motion to dismiss; plaintiffs to respond by 5/26/06. Signed by Judge Timothy J. Corrigan on 5/11/2006.(SRW) (Entered: 05/11/2006)
185 AMENDED MOTION to Dismiss Certain Plaintiffs Second Amended Complaint by James McDonough, Randall Bryant. (Martin, William) Modified on 5/12/2006 (PAM ) (Entered: 05/11/2006)
186 ANSWER to amended complaint and defenses to second amended complaint by James McDonough, Randall Bryant.(Martin, William) (Entered: 05/16/2006)
187 ORDER denying 166 Defendants' Motion for Protective Order. Signed by Judge Marcia Morales Howard on 5/24/2006. (JLW) (Entered: 05/24/2006)
188 RESPONSE in opposition re 185 Amended MOTION to dismiss Certain Plaintiffs Second Amended Complaint filed by Kelvin Frazier, Curt Massie, Jeremiah Thomas, Sylvester Butler, Eugene Ulrath, Reginald Williams, Paul Echols, Michael McKinney, Charles Morgan, Antonio Ward. (Capobianco, Cassandra) (Entered: 05/26/2006)
189 MINUTE ENTRY for proceedings held before Judge Timothy J. Corrigan on 6/1/2006. Court Reporter: Shannon Bishop (SRW) (Entered: 06/01/2006)
190 MOTION for Kevin A. Blazs to Withdraw as Attorney by James V. Crosby, Jr. (PAM ) (Entered: 06/02/2006)
191 NOTICE of Counsel of Record Firm Name Change by Kevin Anthony Blazs (PAM ) (Copy to DQA) (Entered: 06/02/2006)
192 ORDER granting 190 Motion to withdraw as attorney. Kevin Blazs is permitted to withdraw as counsel of record for Defendant James V. Crosby, Jr. in this matter. Signed by Judge Marcia Morales Howard on 6/6/2006. (JLW) (Entered: 06/06/2006)
193 ORDER denying [145, 153, 185] Motions to dismiss; directing defendants to file complete answers by 7/14/06. Signed by Judge Timothy J. Corrigan on 6/8/2006.(SRW) (Entered: 06/08/2006)
194 NOTICE by James McDonough, Randall Bryant Regarding Mediation (Martin, William) (Entered: 06/09/2006)
195 MOTION for reconsideration re 193 Order on motion to dismiss,, or Alternatively, Request to Certify an Interlocutory Appeal Pursuant to 28 U.S.C. 1292(b) by James McDonough, Randall Bryant. (Martin, William) (Entered: 06/14/2006)
196 STIPULATED MOTION for Voluntary Dismissal of Plaintiff Massie's Injunctive Claims Only Without Prejudice by All Plaintiffs. (Capobianco, Cassandra) Modified on 6/19/2006 (PAM ) (Entered: 06/19/2006)
197 ORDER granting 196 Motion for Voluntary Dismissal of Massie's Count XI claims (for injunctive and declaratory relief). Signed by Judge Timothy J. Corrigan on 6/20/2006. (SRW) (Entered: 06/20/2006)
198 RESPONSE in opposition re 195 MOTION for reconsideration re 193 Order on motion to dismiss,, or Alternatively, Request to Certify an Interlocutory Appeal Pursuant to 28 U.S.C. 1292(b) filed by Kelvin Frazier, Curt Massie, Jeremiah

Case: 3:04-cv-917 As of: 09/26/2014 05:10 PM EDT 37 of 60

06/29/2006 06/29/2006
06/29/2006 06/30/2006 07/07/2006 07/11/2006
07/11/2006 07/11/2006 07/13/2006 07/14/2006
07/14/2006 07/14/2006 07/17/2006
07/17/2006 07/17/2006 07/17/2006

Thomas, Sylvester Butler, Eugene Ulrath, Reginald Williams, Paul Echols, Michael McKinney, Charles Morgan, Antonio Ward. (Capobianco, Cassandra) (Entered: 06/28/2006)
199 NOTICE OF INTERLOCUTORY APPEAL as to 193 Order on motion to dismiss, by James Wilson. Filing fee $ 455, receipt #J023243. (SEG) (Entered: 06/29/2006)
TRANSMITTAL of initial appeal package to USCA consisting of certified copies of notice of appeal, docket sheet, order/judgment being appealed, and motion, if applicable to USCA re 199 Notice of interlocutory appeal. Transcript information form available to counsel at www.flmd.uscourts.gov under Forms and Publications. (SEG) (Entered: 06/29/2006)
200 ORDER denying 195 Motion for reconsideration/Request to Certify Interlocutory Appeal. Signed by Judge Timothy J. Corrigan on 6/29/2006. (SRW) (Entered: 06/29/2006)
201 MOTION to stay Proceedings Pending Appeal by James Wilson. (Poole, J.) (Entered: 06/30/2006)
202 TRANSCRIPT information form filed by James Wilson re 199 Notice of interlocutory appeal. USCA number: 06−13662−C. (SEG) (Entered: 07/07/2006)
203 MOTION to Dismiss Claims of Plaintiffs Against Defendant James V. Crosby, Jr. and Incorporated Memorandum of Law by James V. Crosby, Jr. (Wasilenko, Ronald) Modified on 7/11/2006 (PAM ) (No Signature: Counsel Notified: See Doc. #204) (Entered: 07/11/2006)
204 MOTION to dismiss Claims of Plaintiffs Against Defendant James V. Crosby, Jr. and Incorporated Memorandum of Law by James V. Crosby, Jr. (Wasilenko, Ronald) (Entered: 07/11/2006)
205 MEDIATION REPORT Hearing held on June 29, 2006 Hearing outcome: The mediation has been continued to be reset by agreement of the parties.(PAM ) (Entered: 07/12/2006)
206 MOTION to stay Proceedings Pending Appeal and Supporting Memorandum of Law by James V. Crosby, Jr. (Wasilenko, Ronald) (Entered: 07/13/2006)
207 ANSWER and affirmative defenses to amended complaint (second) by Bradley Carter, George Sapp, Stephen Sirmones, Michael Rathmann, Joe Lazenby, Jr, Mark Redd, Keith Musselman, Tony Anderson, William Muse, Colin Halle, Steven Tricocci, Tim Chastain, Rodney Barnett, Ronnie Barton, Kenneth Lampp, Wendell Whitehurst, Stacey Green, David Reynolds, John Riggs, Glynn Reeder, John Rizer, Dean Ellis, Jeffrey Lindsey, Billy Jarvis.(Bridgers, J.) (Entered: 07/14/2006)
208 Answer and Affirmative Defenses to Second Amended Complaint ANSWER and affirmative defenses to complaint with Jury Demand by James V. Crosby, Jr.(Wasilenko, Ronald) (Entered: 07/14/2006)
209 ANSWER and affirmative defenses with Jury Demand to amended complaint by Allen Clark.(Springer, Todd) (Entered: 07/14/2006)
210 ANSWER and affirmative defenses with Jury Demand to amended complaint (Second Amended Complaint) by Oscar Shipley.(Glass, Michael) Modified on 7/17/2006 (PAM )(Counsel Notified: No Date on Certificate of Service: One Signature) (Entered: 07/17/2006)
211 TRANSCRIPT of Motion Hearing Held on June 1, 2006 at 2:00 p.m. before Judge Timothy J. Corrigan. Court Reporter: Shannon M. Bishop, RMR, CRR. (PAM )(Filed Separately) (Entered: 07/17/2006)
212 ANSWER and affirmative defenses with Jury Demand to amended complaint (Second Amended) by Oscar Shipley.(Glass, Michael) (Entered: 07/17/2006)
213 RESPONSE in opposition re 206 MOTION to stay Proceedings Pending Appeal and Supporting Memorandum of Law, 201 MOTION to stay Proceedings Pending Appeal filed by Kelvin Frazier, Curt Massie, Jeremiah Thomas, Sylvester Butler, Eugene Ulrath, Reginald Williams, Paul Echols, Michael McKinney, Charles

Case: 3:04-cv-917 As of: 09/26/2014 05:10 PM EDT 38 of 60

07/19/2006 07/20/2006 07/24/2006
07/27/2006 08/01/2006 08/07/2006
08/07/2006 08/09/2006 08/14/2006 08/17/2006
08/18/2006 08/22/2006

Morgan, Antonio Ward. (Capobianco, Cassandra) (Entered: 07/17/2006)
214 AMENDED ANSWER to Plaintiffs' Second Amended Complaint by James McDonough, Randall Bryant. (Martin, William) (Entered: 07/19/2006)
215 MOTION to Dismiss Claims of Plaintiffs Against Defendant James V. Crosby, Jr. and Incorporated Memorandum of Law Defendant James V. Crosby, Jr.'s Amended Motion to Dismiss Claims of Plaintiffs Against Defendant James V. Crosby, Jr. and Incorporated Memorandum of Law by James V. Crosby, Jr. (Wasilenko, Ronald) Modified on 7/21/2006 (PAM ) (Entered: 07/20/2006)
216 RESPONSE in opposition re 215 MOTION to dismiss Claims of Plaintiffs Against Defendant James V. Crosby, Jr. and Incorporated Memorandum of Law Defendant James V. Crosby, Jr.'s Amended Motion to Dismiss Claims of Plaintiffs Against Defendant James V. Crosby, Jr. and Incorpo filed by Kelvin Frazier, Curt Massie, Jeremiah Thomas, Sylvester Butler, Eugene Ulrath, Reginald Williams, Paul Echols, Michael McKinney, Charles Morgan, Antonio Ward. (Capobianco, Cassandra) (Entered: 07/24/2006)
217 MOTION for leave to file Reply Memorandum by James Wilson. (Poole, J.) (Entered: 07/27/2006)
218 MOTION for leave to file Defendant James V. Crosby, Jr.'s Motion For Leave To File A Reply To Plaintiffs' Response To Defendant Crosby's Motion To Dismiss Certain Of Plaintiffs' Claims And Supporting Memoranda [SIC] Of Law by James V. Crosby, Jr. (Wasilenko, Ronald) (Entered: 08/01/2006)
219 MOTION to stay Proceedings Pending Appeal and Supporting Memorandum of Law by Bradley Carter, George Sapp, Stephen Sirmones, Michael Rathmann, Joe Lazenby, Jr, Mark Redd, Keith Musselman, Tony Anderson, William Muse, Colin Halle, Steven Tricocci, Tim Chastain, Rodney Barnett, Ronnie Barton, Kenneth Lampp, Wendell Whitehurst, Stacey Green, David Reynolds, John Riggs, Glynn Reeder, John Rizer, Dean Ellis, Jeffrey Lindsey, Billy Jarvis. (Bridgers, J.) (Entered: 08/07/2006)
220 MOTION for preliminary injunction by Michael McKinney. (PAM ) (Entered: 08/09/2006)
221 ORDER denying without prejudice 220 Motion for preliminary injunction. Signed by Judge Timothy J. Corrigan on 8/9/2006.(SRW) (Entered: 08/09/2006)
222 MOTION to stay Proceedings by Allen Clark. (Springer, Todd) (Entered: 08/14/2006)
223 Endorsed Order granting 217 Defendant James Wilson's Motion for Leave to File a Reply to Plaintiffs' Response to Defendant Wilson's Motion to Stay Discovery Pending Appeal and granting 218 Defendant James V. Crosby, Jr.'s Motion for Leave to File a Reply to Plaintiffs' Response to Defendant Crosby's Motion to Dismiss. The deadline for Defendants Wilson and Crosby to file their respective replies is Thursday, August 24, 2006. The replies are limited to five pages. Ordered by Judge Timothy J. Corrigan on 08/17/06. (ATD). (Entered: 08/17/2006)
224 RESPONSE in opposition re 219 MOTION to stay Proceedings Pending Appeal and Supporting Memorandum of Law, 222 MOTION to stay Proceedings filed by Kelvin Frazier, Curt Massie, Jeremiah Thomas, Sylvester Butler, Eugene Ulrath, Reginald Williams, Paul Echols, Michael McKinney, Charles Morgan, Antonio Ward. (Capobianco, Cassandra) (Entered: 08/18/2006)
225 REPLY to response to motion re 215 MOTION to dismiss Claims of Plaintiffs Against Defendant James V. Crosby, Jr. and Incorporated Memorandum of Law Defendant James V. Crosby, Jr.'s Amended Motion to Dismiss Claims of Plaintiffs Against Defendant James V. Crosby, Jr. and Incorpo, 218 MOTION for leave to file Defendant James V. Crosby, Jr.'s Motion For Leave To File A Reply To Plaintiffs' Response To Defendant Crosby's Motion To Dismiss Certain Of Plaintiffs' Claims And Supporting Memoranda [SIC] Of Law, 204 MOTION to dismiss Claims of Plaintiffs Against Defendant James V. Crosby, Jr. and Incorporated Memorandum of Law Defendant James V. Crosby, Jr.'s Reply to Plaintiffs' Response to Defendant Crosby's Motion to Dismiss Certain of Plaintiffs'

Case: 3:04-cv-917 As of: 09/26/2014 05:10 PM EDT 39 of 60

08/23/2006 08/23/2006 09/07/2006 09/07/2006
09/11/2006 09/11/2006 09/13/2006
09/14/2006 10/09/2006 10/11/2006 11/21/2006 12/04/2006 12/06/2006

Claims and Supporting Memorandum of Law filed by James V. Crosby, Jr. (Wasilenko, Ronald) (Entered: 08/22/2006)
226 REPLY to response to motion re 201 MOTION to stay Proceedings Pending Appeal filed by James Wilson. (Poole, J.) (Entered: 08/23/2006)
227 NOTICE by James V. Crosby, Jr Notice of Counsel of Record Firm Name Change (Wasilenko, Ronald) Modified on 8/24/2006 (PAM )(Copy to DQA) (Entered: 08/23/2006)
228 ORDER granting 201 Motion to stay (by Wilson), denying [206, 219, 222] Motions to stay (as to other defendants), denying 215 Motion to dismiss. Signed by Judge Timothy J. Corrigan on 9/7/2006.(SRW) (Entered: 09/07/2006)
229 SECOND AMENDED CASE MANAGEMENT AND SCHEDULING ORDER:Discovery due by 1/31/2007. Dispositive motions due by 2/28/2007. Pretrial statement due by 6/12/2007. Final Pretrial Conference set for 6/18/2007 10:00 AM in Courtroom 10B before Judge Timothy J. Corrigan. Jury Trial set for 7/2/2007− 7/20/2007 term 9:00 AM in Courtroom 10B before Judge Timothy J. Corrigan. Signed by Judge Timothy J. Corrigan on 9/7/2006.(SRW) (Entered: 09/07/2006)
230 CERTIFICATE of readiness sent to USCA re: 199 Notice of interlocutory appeal. ROA consists of: volume of pleadings: 4 volume of transcripts: 1 USCA number: 0613662−CC (SEG) (Entered: 09/11/2006)
RECORD on appeal sent to USCA re 199 Notice of interlocutory appeal. Transmittal includes certified copy of docket sheet, volume of pleadings: 4, volume of transcripts: 1, USCA number 06−13662−CC (SEG) (Entered: 09/11/2006)
231 NOTICE by Kelvin Frazier, Curt Massie, Jeremiah Thomas, Sylvester Butler, Eugene Ulrath, Reginald Williams, Paul Echols, James McDonough, Michael McKinney, Bradley Carter, Charles Morgan, George Sapp, Antonio Ward, Stephen Sirmones, Michael Rathmann, Joe Lazenby, Jr, Allen Clark, Mark Redd, Keith Musselman, Tony Anderson, William Muse, James V. Crosby, Jr, Colin Halle, Steven Tricocci, Tim Chastain, Rodney Barnett, Ronnie Barton, Kenneth Lampp, Wendell Whitehurst, Stacey Green, David Reynolds, John Riggs, Randall Bryant, Glynn Reeder, John Rizer, Oscar Shipley, Dean Ellis, Jeffrey Lindsey, Billy Jarvis of Joint Stipulation by All Parties to Extend the Deadline for Service of Expert Reports and Rebuttal Reports (Martin, William) (Entered: 09/13/2006)
ACKNOWLEDGMENT by USCA of receiving record on appeal on 9/12/06 re 199 Notice of interlocutory appeal. USCA number: 06−13662−CC. (SEG) (Entered: 09/14/2006)
232 MOTION leave to take inmates' depositions (Plaintiffs Echols, Ward, Morgan and McKinney) by James McDonough, Randall Bryant. (Martin, William) (Entered: 10/09/2006)
233 ORDER granting 232 Defendants McDonough and Bryant's Motion for Leave to Take the Depositions of Plaintiffs Echols, McKinney, Morgan and Ward. Signed by Judge Marcia Morales Howard on 10/11/2006. (JLW) (Entered: 10/11/2006)
234 Joint MOTION to extend time to meet case management deadlines by six months by all parties. (Capobianco, Cassandra) (Entered: 11/21/2006)
235 STIPULATION for Entry of an Order of Partial Dismissal with Prejudice by James V. Crosby, Jr. (Wasilenko, Ronald) Modified on 12/4/2006 (PAM ). (Entered: 12/04/2006)
236 THIRD AMENDED CASE MANAGEMENT AND SCHEDULING ORDER: The Joint Motion to Extend the Deadlines Set Forth in the Courts Second Amended Case Management and Scheduling Order 234 is granted. Discovery due by 7/31/2007, Dispositive motions due by 8/31/2007, Pretrial statement due by 12/12/2007, Final Pretrial Conference set for 12/18/2007 02:30 PM in Courtroom 10 B before Judge Timothy J. Corrigan, Jury Trial set for 1/3/2008 − 1/18/2008 09:00 AM in Courtroom 10 B before Judge Timothy J. Corrigan Signed by Judge Timothy J. Corrigan on 12/6/2006. (JMAP, ) Modified on 5/12/2008 to correct

Case: 3:04-cv-917 As of: 09/26/2014 05:10 PM EDT 40 of 60

12/11/2006 01/04/2007 02/22/2007 03/10/2007 03/20/2007 03/20/2007
03/29/2007 04/02/2007 04/06/2007
04/09/2007 04/11/2007 04/11/2007
04/19/2007 04/20/2007
04/20/2007 04/23/2007 05/02/2007

typo only(LRB). (Entered: 12/06/2006)
237 ORDER of partial dismissal with prejudice. Signed by Judge Timothy J. Corrigan on 12/8/2006. (JMAP, ) (Entered: 12/11/2006)
238 USCA judgment as to 199 Notice of interlocutory appeal filed by James Wilson, issued as Mandate 12/29/06 and EOD: 11/30/06 USCA number: 06−13662−CC [bill of costs attached] (SEG) (Entered: 01/04/2007)
Case reassigned to Judge Howard T. Snyder. New case number: 3:04−cv−917−J−32HTS. Judge Marcia Morales Howard no longer assigned to the case. (PAM ) (Entered: 02/22/2007)
239 Unopposed MOTION to dismiss Claims against Defendants Reeder, Reynolds, Riggs, and Rizer only voluntarily and with prejudice by all plaintiffs. (Capobianco, Cassandra) (Entered: 03/10/2007)
240 STIPULATION Joint Stipulation by all parties to Extend Deadline of Filing Expert Reports and Rebuttal Reports by James McDonough, Randall Bryant. (Martin, William) (Entered: 03/20/2007)
241 ORDER: Defendants Glynn Reeder, David Reynolds, John Riggs and John Rizer are hereby DISMISSED with prejudice from this case. The remainder of this case shall remain open. Signed by Judge Timothy J. Corrigan on 3/20/2007. (JMAP, ) (Entered: 03/20/2007)
242 MOTION to disqualify Counsel by James Wilson. (Poole, J.) (Entered: 03/29/2007)
243 NOTICE of change of address by J. Dixon Bridgers, III (PAM ) (Copy to DQA) (Entered: 04/02/2007)
244 RESPONSE in opposition re 242 MOTION to disqualify Counsel Request for Evidentiary Hearing, and Supporting Memorandum of Law filed by Kelvin Frazier, Curt Massie, Jeremiah Thomas, Sylvester Butler, Eugene Ulrath, Reginald Williams, Paul Echols, Michael McKinney, Charles Morgan, Antonio Ward. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D# 5 Exhibit E)(Fresco, Leon) (Entered: 04/06/2007)
245 NOTICE of unavailability of counsel byJames Wilson from April 21, 2007 to April 28, 2007. (Poole, J.) (Entered: 04/09/2007)
246 MOTION for protective order by James Wilson. (Poole, J.) Motions referred to Magistrate Judge Howard T. Snyder. (Entered: 04/11/2007)
247 ORDER setting case for status and hearing on 242 Motion to Disqualify on May 1, 2007 at 2:00 p.m., Courtroom 10B; granting 246 Motion for protective order to extent provided by Order. Signed by Judge Timothy J. Corrigan on 4/11/2007. (SRW) (Entered: 04/11/2007)
248 MOTION Relief From Order re 247 Order on motion for protective order by James Wilson. (Poole, J.) (Entered: 04/19/2007)
249 RESPONSE to motion re 248 MOTION Relief From Order re 247 Order on motion for protective order Response of Holland &Knight LLP to Defendant James Wilson's Motion for Relief from Court Order filed by Kelvin Frazier, Curt Massie, Jeremiah Thomas, Sylvester Butler, Eugene Ulrath, Reginald Williams, Paul Echols, Michael McKinney, Charles Morgan, Antonio Ward. (Schulz, George) (Entered: 04/20/2007)
250 NOTICE by James Wilson re 242 MOTION to disqualify Counsel of Filing Affidavits In Support Of Motion (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D)(Poole, J.) (Entered: 04/20/2007)
251 ORDER granting 248 Motion for Relief from Court Order to extent stated herein. Signed by Judge Timothy J. Corrigan on 4/23/2007.(SRW) (Entered: 04/23/2007)
252 MINUTE ENTRY for proceedings held before Judge Timothy J. Corrigan: Motion Hearing re 242 and status held on 5/1/2007 (Court adds deadline to case schedule:

Case: 3:04-cv-917 As of: 09/26/2014 05:10 PM EDT 41 of 60

05/03/2007 05/06/2007 05/10/2007 05/11/2007
05/14/2007 06/15/2007
06/25/2007 06/27/2007 07/06/2007
07/09/2007 07/10/2007 07/12/2007

November 1, 2007 2:00 p.m. status hrg re: trial issues &argument on pending motions). Court Reporter: Shannon Bishop (SRW) (Entered: 05/02/2007)
253 MOTION for summary judgment with Supporting Memorandum of Law by James McDonough, Randall Bryant. (Attachments: # 1)(Martin, William) (Entered: 05/03/2007)
254 ANSWER and affirmative defenses to amended complaint by James Wilson.(Poole, J.) (Entered: 05/06/2007)
255 Verified MOTION for Extension of Time to File Response/Reply as to 253 MOTION for summary judgment with Supporting Memorandum of Law by Kelvin Frazier, Curt Massie, Jeremiah Thomas, Sylvester Butler, Eugene Ulrath, Reginald Williams, Charles Morgan. (Fresco, Leon) Motions referred to Magistrate Judge Howard T. Snyder. (Entered: 05/10/2007)
256 RESPONSE in opposition re 255 Verified MOTION for Extension of Time to File Response/Reply as to 253 MOTION for summary judgment with Supporting Memorandum of LawVerified MOTION for Extension of Time to File Response/Reply as to 253 MOTION for summary judgment with Supporting Memorandum of Law filed by James McDonough, Randall Bryant. (Attachments: # 1)(Martin, William) (Entered: 05/11/2007)
257 ORDER granting 255 Motion for Extension of Time to File Response re 253 MOTION for summary judgment; Response due by 9/24/2007. Signed by Judge Timothy J. Corrigan on 5/14/2007. (SRW) (Entered: 05/14/2007)
258 MOTION to compel Production from Defendants James McDonough and Randall Bryant of Items not Produced in Defendants' Responses to Plaintiffs' Fifth and Eighth Requests to Produce and Memorandum of Law in Support Thereof by Kelvin Frazier, Curt Massie, Jeremiah Thomas, Sylvester Butler, Eugene Ulrath, Reginald Williams, Paul Echols, Michael McKinney, Charles Morgan, Antonio Ward. (Attachments: # 1 Exhibit Exhibits A, B, C, D)(Schulz, George) Motions referred to Magistrate Judge Howard T. Snyder. (Entered: 06/15/2007)
259 MOTION for Extension of Time to File Response/Reply to Plaintiffs' moiton to compel by James McDonough, Randall Bryant. (Martin, William) Motions referred to Magistrate Judge Howard T. Snyder. (Entered: 06/25/2007)
260 ORDER: Defendant James McDonough's Motion for Enlargement 259 , which is represented to be unopposed, is GRANTED and Defendant shall have up to and including July 6, 2007, to respond to the motion to compel 258 . Signed by Judge Howard T. Snyder on 6/27/2007. (LU) (Entered: 06/27/2007)
261 RESPONSE in opposition re 258 MOTION to compel Production from Defendants James McDonough and Randall Bryant of Items not Produced in Defendants' Responses to Plaintiffs' Fifth and Eighth Requests to Produce and Memorandum of Law in Support Thereof and Motion for Protective Order filed by James McDonough, Randall Bryant. (Attachments: # 1 Exhibit exhibit 1# 2 Exhibit Exhibit 2# 3 Exhibit Exhibit 3# 4 Exhibit Exhibit 4# 5 Exhibit Exhibit 5# 6 Exhibit Exhibit 6# 7 Exhibit Exhibit 7)(Martin, William) (Entered: 07/06/2007)
262 First MOTION for leave to file REPLY re 261 RESPONSE in opposition re 258 MOTION to compel (Fresco, Leon) Modified on 7/10/2007 (PAM ). (Entered: 07/09/2007)
263 NOTICE by James McDonough, Randall Bryant of Opposition to Plaintiffs' Motion for Leave to File a Reply (Martin, William) (Entered: 07/10/2007)
264 ORDER: Plaintiffs' Motion for Leave to File a Reply to Defendants' Opposition to Plaintiffs' Motion to Compel 262 is GRANTED to the extent a hearing in regard to Plaintiffs' Motion to Compel Production from Defendants James McDonough and Randall Bryant of Items not Produced in Defendants' Responses to Plaintiffs' Fifth and Eighth Requests to Produce 258 is hereby scheduled for August 6, 2007, at 2:15 P.M. before Howard T. Snyder, United States Magistrate Judge, in Courtroom No. 5A (fifth floor), 300 N. Hogan Street, Jacksonville, Florida. Prior to the hearing, the parties are to meet and make every attempt to resolve the matter amicably. In that regard, they shall file a notice on or before August 1, 2007,

Case: 3:04-cv-917 As of: 09/26/2014 05:10 PM EDT 42 of 60

07/12/2007 07/16/2007 07/20/2007
07/20/2007
07/24/2007 07/27/2007 07/27/2007 07/27/2007 07/30/2007 07/30/2007
07/30/2007 07/30/2007

specifying whether any or all issues remain outstanding. Signed by Judge Howard T. Snyder on 7/12/2007. (CF) (Entered: 07/12/2007)
265 ORDER denying 242 Motion to disqualify. Signed by Judge Timothy J. Corrigan on 7/12/2007.(SRW) (Entered: 07/12/2007)
266 MOTION for protective order regarding 9th Request for Production by James McDonough, Randall Bryant. (Martin, William) Motions referred to Magistrate Judge Howard T. Snyder. (Entered: 07/16/2007)
267 MOTION for discovery Plaintiffs' Motion to Expand the Court's Previously Scheduled August 6, 2007 Hearing on Plaintiffs' Motion to Compel [DE # 258] to Include Other Pending Discovery Motions as Identified Herein, and For Leave to Permit George E. Schulz, Jr., Counsel for Plaintiffs, to Appear Telephonically by all plaintiffs. (Attachments: # 1 Exhibit A# 2 Exhibit B)(Schulz, George) Motions referred to Magistrate Judge Howard T. Snyder. (Entered: 07/20/2007)
268 RESPONSE in opposition re 266 MOTION for protective order regarding 9th Request for Production Plaintiffs' Response in Opposition to Defendants McDonough and Bryant's Motion for Protective Order and Supporting Memorandum of Law filed by Kelvin Frazier, Curt Massie, Jeremiah Thomas, Sylvester Butler, Eugene Ulrath, Reginald Williams, Paul Echols, Michael McKinney, Charles Morgan, Antonio Ward. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 # 4 # 5 Exhibit E# 6 Exhibit F# 7 Exhibit G# 8 Exhibit H# 9 Exhibit I# 10 Exhibit J# 11 Exhibit K# 12 Exhibit L# 13 Exhibit M# 14 Exhibit N# 15 Exhibit O# 16 Exhibit P# 17 Exhibit Q# 18 Exhibit R)(Schulz, George) (Entered: 07/20/2007)
269 Joint MOTION to dismiss Defendant James Wilson Voluntary with Prejudice by all plaintiffs. (Schulz, George) (Entered: 07/24/2007)
270 MOTION to strike 268 Response in opposition to motion,, by James McDonough, Randall Bryant. (Martin, William) Motions referred to Magistrate Judge Howard T. Snyder. (Entered: 07/27/2007)
271 Joint MOTION to dismiss Defendants Stephen Sirmones, Joe Lazenby Jr., Mark Redd, Keith Musselman, Tony Anderson, William Muse, Colin Halle, Steven Tricocci, Tim Chastain, Rodney Barnett, Ronnie Barton, Kenneth Lampp, Wendell Whitehurst, Dean Ellis, Jeffrey Lindsey and Billy Jarvis Voluntary with Prejudice by all plaintiffs. (Schulz, George) (Entered: 07/27/2007)
272 Unopposed MOTION for Peter M. Siegel to withdraw as attorney by all plaintiffs. (Berg, Randall) Motions referred to Magistrate Judge Howard T. Snyder. (Entered: 07/27/2007)
273 ORDER: The Unopposed Motion to Withdraw as Plaintiffs' Counsel 272 is GRANTED and Peter M. Siegel, Esquire, of the Florida Justice Institute, Inc., is permitted to withdraw from his representation of Plaintiffs. Signed by Judge Howard T. Snyder on 7/30/2007. (LU) (Entered: 07/30/2007)
274 ORDER: Plaintiffs' Motion to Expand the Court's Previously Scheduled August 6, 2007 Hearing on Plaintiffs' Motion to Compel [DE # 258] to Include Other Pending Discovery Motions, and for Leave to Permit George E. Schulz, Jr., Counsel for Plaintiffs, to Appear Telephonically 267 is GRANTED to the extent Defendants James McDonough and Randall Bryant's Motion for Protective Order 266 will be addressed at the hearing. Additionally, George E. Schulz, Jr., Esquire, is permitted to appear telephonically. Signed by Judge Howard T. Snyder on 7/30/2007. (CF) (Entered: 07/30/2007)
275 ORDER granting 269 Joint Motion for Voluntary Dismissal with Prejudice as to Defendant James Wilson. Signed by Judge Timothy J. Corrigan on 7/30/2007. (md) (Entered: 07/30/2007)
276 RESPONSE in opposition re 270 MOTION to strike 268 Response in opposition to motion,, for Protective Order as to Plaintiffs' 9th Request for Production filed by Kelvin Frazier, Curt Massie, Jeremiah Thomas, Sylvester Butler, Eugene Ulrath, Reginald Williams, Paul Echols, Michael McKinney, Charles Morgan, Antonio Ward. (Fresco, Leon) (Entered: 07/30/2007)

Case: 3:04-cv-917 As of: 09/26/2014 05:10 PM EDT 43 of 60

07/30/2007 07/31/2007
08/06/2007
08/10/2007 08/24/2007 08/27/2007 08/27/2007
08/29/2007 08/29/2007 08/29/2007 08/29/2007 08/29/2007
08/30/2007 08/30/2007

277 ORDER: Defendants James McDonough and Randall Bryant's Motion to Strike Plaintiffs' Response in Opposition to Their Motion for Protective Order 270 is DENIED. Signed by Judge Howard T. Snyder on 7/30/2007. (LU) (Entered: 07/30/2007)
278 NOTICE by Kelvin Frazier, Curt Massie, Jeremiah Thomas, Sylvester Butler, Eugene Ulrath, Reginald Williams, Paul Echols, James McDonough, Michael McKinney, Charles Morgan, Antonio Ward, Randall Bryant re 264 Order on motion for leave to file,,, Discovery Issues Submitted for Adjudication During the Hearing Scheduled for August 6, 2007 (Fresco, Leon) (Entered: 07/31/2007)
279 MINUTE ENTRY for proceedings held before Judge Howard T. Snyder : Motion Hearing held on 8/6/2007 re 258 MOTION to compel Production from Defendants James McDonough and Randall Bryant of Items not Produced in Defendants' Responses to Plaintiffs' Fifth and Eighth Requests to Produce and Memorandum of Law in Support Thereof, 266 MOTION for protective order regarding 9th Request for Production (DIGITAL) (Attachments: # 1 Exhibit #1) (MY) (Entered: 08/07/2007)
280 ORDER granting in part and denying in part 258 Motion to compel; denying 266 Motion for protective order. Signed by Judge Howard T. Snyder on 8/10/2007. (LU) (Entered: 08/10/2007)
281 Digitally Recorded Motion Hearing held on August 6, 2007 at 2:12 p.m. before The Honorable Howard T. Snyder, U.S. Magistrate Judge. Court Reporter: Shannon Bishop. (PAM ) Modified on 8/24/2007 (PAM)(filed separately) (Entered: 08/24/2007)
282 MOTION for leave to file Dispositive Motion in Excess of Twenty−Five Pages by James V. Crosby, Jr. (Wasilenko, Ronald) (Entered: 08/27/2007)
283 Second MOTION to compel PRODUCTION FROM DEFENDANTS JAMES MCDONOUGH AND RANDALL BRYANT OF ITEMS NOT PRODUCED IN DEFENDANTS' RESPONSES TO PLAINTIFFS' EIGHTH REQUEST TO PRODUCE, NOR IN RESPONSE TO THE COURTS ORDER DATED AUGUST 10, 2007 by all plaintiffs. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D# 5 Exhibit E# 6 Exhibit F# 7 Exhibit G# 8 Exhibit H# 9 Exhibit I# 10 Exhibit J# 11 Exhibit K# 12 Exhibit L)(Fresco, Leon) Motions referred to Magistrate Judge Howard T. Snyder. (Entered: 08/27/2007)
284 ENDORSED ORDER granting 282 Motion for leave to file dispositive motion in excess of 25 pages; defendant Crosby's motion may be no longer than 35 pages. Signed by Judge Timothy J. Corrigan on 8/29/2007.(SRW) (Entered: 08/29/2007)
285 MOTION for Extension of Time to File Motion for Summary Judgment by James McDonough, Randall Bryant. (Martin, William) (Entered: 08/29/2007)
286 MOTION to exceed page limit of motion for summary judgment by James McDonough, Randall Bryant. (Martin, William) (Entered: 08/29/2007)
287 Amended MOTION for Extension of Time to File Motion for Summary Judgment by James McDonough, Randall Bryant. (Martin, William) (Entered: 08/29/2007)
288 RESPONSE to motion re 287 Amended MOTION for Extension of Time to File Motion for Summary Judgment, 285 MOTION for Extension of Time to File Motion for Summary Judgment filed by Kelvin Frazier, Curt Massie, Jeremiah Thomas, Sylvester Butler, Eugene Ulrath, Reginald Williams, Paul Echols, Michael McKinney, Charles Morgan, Antonio Ward. (Fresco, Leon) (Entered: 08/29/2007)
289 MOTION for summary judgment by Allen Clark. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D# 5 Exhibit E# 6 Exhibit F# 7 Exhibit G# 8 Exhibit H# 9 Exhibit I# 10 Exhibit J# 11 Exhibit K# 12 Exhibit L# 13 Exhibit M)(Springer, Todd) (Entered: 08/30/2007)
290 MOTION for Extension of Time to File Motion for Summary Judgment by Bradley Carter, George Sapp, Michael Rathmann, Stacey Green. (Bridgers, J.) (Entered: 08/30/2007)

Case: 3:04-cv-917 As of: 09/26/2014 05:10 PM EDT 44 of 60

08/30/2007
08/30/2007 08/30/2007 08/30/2007 08/31/2007 08/31/2007 08/31/2007
08/31/2007 08/31/2007 08/31/2007 08/31/2007
08/31/2007 08/31/2007

291 ORDER granting 271 the parties Joint Motion for Voluntary Dismissal with Prejudice as to Defendants Stephen Sirmones, Joe Lazenby Jr., Mark Redd, Keith Musselman, Tony Anderson, William Muse, Colin Halle, Steven Tricocci, Tim Chastain, Rodney Barnett, Ronnie Barton, Kenneth Lampp, Wendell Whitehurst, Dean Ellis, Jeffrey Lindsey and Billy Jarvis. Signed by Judge Timothy J. Corrigan on 8/30/2007. (md) Additional attachment(s) added on 10/5/2007 (sms, ). (Entered: 08/30/2007)
292 MOTION for summary judgment and Memorandum of Law by Michael Rathmann. (Bridgers, J.) (Entered: 08/30/2007)
293 NOTICE by Allen Clark re 289 MOTION for summary judgment of Filing Depositions in Support of Motion for Summary Judgment (Attachments: # 1 Deposition of Allen Clark# 2 Deposition of Curt Massie# 3 Deposition of Jeremiah Thomas)(Jones, Paul) (Entered: 08/30/2007)
294 MOTION for summary judgment and Memorandum of Law by Michael Rathmann. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D# 5 Exhibit E# 6 Exhibit F# 7 Exhibit G# 8 Exhibit H# 9 Exhibit I# 10 Exhibit J)(Bridgers, J.) (Entered: 08/30/2007)
295 MOTION for summary judgment and Incorporated Memorandum of Law by Oscar Shipley. (Glass, Michael) (Entered: 08/31/2007)
296 MOTION to disqualify Expert Testimony of Defendants' Expert Richard Lipsey by all plaintiffs. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D# 5 Exhibit E# 6 Exhibit F)(Fresco, Leon) (Entered: 08/31/2007)
297 MOTION for summary judgment and Incorporated Memorandum of Law by James V. Crosby, Jr. (Attachments: # 1 Exhibit A # 2 Exhibit B # 3 Exhibit C # 4 Exhibit D # 5 Exhibit E # 6 Exhibit F # 7 Exhibit G # 8 Exhibit H # 9 Exhibit I # 10 Exhibit J # 11 Exhibit K # 12 Exhibit L # 13 Exhibit M # 14 Exhibit N # 15 Exhibit O # 16 Exhibit P # 17 Exhibit Q # 18 Exhibit R # 19 Exhibit S # 20 Exhibit T # 21 Exhibit U # 22 Exhibit V # 23 Exhibit W # 24 Exhibit X # 25 Exhibit Y # 26 Exhibit Z # 27 Exhibit AA # 28 Exhibit BB # 29 Exhibit CC # 30 Exhibit DD # 31 Exhibit EE # 32 Exhibit FF # 33 Exhibit GG # 34 Exhibit HH # 35 Exhibit II # 36 Exhibit JJ # 37 Exhibit KK # 38 Exhibit LL # 39 Exhibit MM)(Wasilenko, Ronald) Modified on 9/4/2007 (DH). (Entered: 08/31/2007)
298 MOTION to Exclude Plaintiffs' Corrections/Prison Expert, Chase Riveland, and Incorporated Memorandum of Law by James V. Crosby, Jr. (Attachments: # 1 Exhibit)(Wasilenko, Ronald) (Entered: 08/31/2007)
299 NOTICE by James V. Crosby, Jr of Filing Deposition of Plaintiffs' Corrections/Prison Expert Chase Riveland (Attachments: # 1 Exhibit)(Wasilenko, Ronald) Modified on 9/4/2007. DOCUMENT NOT SIGNED. ATTORNEY NOTIFIED TO REFILE (DH). (Entered: 08/31/2007)
300 NOTICE by James V. Crosby, Jr of Filing Deposition of Plaintiffs' Corrections/Prison Expert Chase Riveland (Attachments: # 1 Exhibit)(Wasilenko, Ronald) (Entered: 08/31/2007)
301 NOTICE by Allen Clark re 289 MOTION for summary judgment of Filing Depositions in Support of Motion for Summary Judgment (Second Notice) (Attachments: # 1 Deposition of Randall Polk − Part I# 2 Deposition of Randall Polk − Part II# 3 Deposition of James Crosby, Jr. − Part I# 4 Deposition of James Crosby, Jr. − Part II# 5 Deposition of James Crosby, Jr. − Part III)(Jones, Paul) (Entered: 08/31/2007)
302 ORDER granting [287, 290] Motions for Extension of Time to File (motions due 9/4/07; responses due 9/27/07); granting 286 Motion to extend pages. Signed by Judge Timothy J. Corrigan on 8/31/2007.(SRW) (Entered: 08/31/2007)
303 MOTION for summary judgment and Memorandum of Law by Bradley Carter. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D)(Bridgers, J.) (Entered: 08/31/2007)

Case: 3:04-cv-917 As of: 09/26/2014 05:10 PM EDT 45 of 60

08/31/2007 09/04/2007 09/04/2007
09/05/2007 09/05/2007 09/07/2007
09/07/2007
09/07/2007 09/07/2007 09/07/2007 09/10/2007 09/11/2007
09/11/2007

304 MOTION for summary judgment and Memorandum of Law by George Sapp. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D# 5 Exhibit E# 6 Exhibit F# 7 Exhibit G# 8 Exhibit H# 9 Exhibit I# 10 Exhibit J# 11 Exhibit K# 12 Exhibit L# 13 Exhibit M)(Bridgers, J.) (Entered: 08/31/2007)
305 MOTION for summary judgment and Memorandum of Law by Stacey Green. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D# 5 Exhibit E# 6 Exhibit F)(Bridgers, J.) (Entered: 09/04/2007)
306 MOTION for summary judgment by James McDonough, Randall Bryant. (Attachments: # 1 Exhibit 1# 2 Exhibit 2A# 3 Exhibit 2B# 4 Exhibit 2C# 5 Exhibit 3# 6 Exhibit 4A# 7 Exhibit 4B# 8 Exhibit 5# 9 Exhibit 6# 10 Exhibit 7# 11 Exhibit 8# 12 Exhibit 9# 13 Exhibit 10# 14 Exhibit 11# 15 Exhibit 12# 16 Exhibit 13# 17 Exhibit 14# 18 Exhibit 15# 19 Exhibit 16# 20 Exhibit 17# 21 Exhibit 18)(Martin, William) (Entered: 09/04/2007)
307 MOTION for Leave to File an Omnibus Response to Defendants' Motions for Summary Judgment, MOTION for Extension of Time for Filing Omnibus Response, and MOTION for Entry of an Order Directing Defendants to Expedite any Written Responses in Opposition to this Motion by all plaintiffs. (Fresco, Leon) Modified on 9/6/2007 (DH). (Entered: 09/05/2007)
308 NOTICE of unavailability of counsel byJames McDonough, Randall Bryant from 9/10/07 to 9/17/07. (Martin, William) (Entered: 09/05/2007)
309 RESPONSE to motion re 307 Motion for Leave to File an Omnibus Response to Defendants' Motions for Summary Judgment, MOTION for Extension of Time for Filing Omnibus Response, and MOTION for Entry of an Order Directing Defendants to Expedite any Written Responses in Opposition filed by Bradley Carter, George Sapp, Michael Rathmann, Stacey Green. (Bridgers, J.) (Entered: 09/07/2007)
310 NOTICE that they do not intend to file a response by James McDonough, Randall Bryant re 307 Motion for Leave to File an Omnibus Response to Defendants' Motions for Summary Judgment, MOTION for Extension of Time for Filing Omnibus Response, and MOTION for Entry of an Order Directing Defendants to Expedite any Written Responses in Opposition (Martin, William) Modified on 9/10/2007 as to docket text only (MGG). (Entered: 09/07/2007)
311 RESPONSE in opposition re 307 Motion for Leave to File an Omnibus Response to Defendants' Motions for Summary Judgment, MOTION for Extension of Time for Filing Omnibus Response, and MOTION for Entry of an Order Directing Defendants to Expedite any Written Responses in Opposition to this Motion filed by James V. Crosby, Jr. (Wasilenko, Ronald) (Entered: 09/07/2007)
312 ORDER granting 307 Motion to file 100 page omnibus response to pending summary judgment motions; response to be filed by 9/27/07. Signed by Judge Timothy J. Corrigan on 9/7/2007.(SRW) (Entered: 09/07/2007)
313 NOTICE to the Court by Oscar Shipley (Glass, Michael) Modified on 9/10/2007 as to docket text only (MGG). (Entered: 09/07/2007)
314 Consent MOTION for Extension of Time to File Response/Reply to Daubert motions by James McDonough, Randall Bryant. (Martin, William) Motions referred to Magistrate Judge Howard T. Snyder. (Entered: 09/10/2007)
315 RESPONSE in opposition re 283 Second MOTION to compel PRODUCTION FROM DEFENDANTS JAMES MCDONOUGH AND RANDALL BRYANT OF ITEMS NOT PRODUCED IN DEFENDANTS' RESPONSES TO PLAINTIFFS' EIGHTH REQUEST TO PRODUCE, NOR IN RESPONSE TO THE COURTS ORDER DATED AUGUST 10, 2007 and Motion for Protective Order filed by James McDonough, Randall Bryant. (Attachments: # 1 Exhibit A# 2 Exhibit B)(Martin, William) (Entered: 09/11/2007)
316 ENDORSED ORDER granting 314 Motion for Extension of Time to File Response re 298 MOTION to Exclude Plaintiffs' Corrections/Prison Expert, Chase Riveland, 296 MOTION to disqualify Expert Testimony of Defendants' Expert Richard Lipsey. Responses due by 10/11/2007. Signed by Judge Timothy J.

Case: 3:04-cv-917 As of: 09/26/2014 05:10 PM EDT 46 of 60

09/17/2007 09/17/2007 09/18/2007 09/18/2007
09/20/2007
09/20/2007 09/21/2007 09/24/2007 09/27/2007

Corrigan on 9/11/2007.(SRW) (Entered: 09/11/2007)
317 NOTICE OF RESCHEDULING HEARING: The Status hearing previously scheduled for 11/1/07 at 2:00 p.m. is rescheduled (as to time only). Status Conference rescheduled for for 11/1/2007 at 09:30 AM in Courtroom 10 B before Judge Timothy J. Corrigan. (md) (Entered: 09/17/2007)
318 MOTION FOR LEAVE TO EXCEED THE ONE−HUNDRED 100 PAGE LIMIT PREVIOUSLY PROVIDED BY THE COURT IN ITS SEPTEMBER 7, 2007 ORDER GRANTING PLAINTIFFS MOTION FOR LEAVE TO FILE AN OMNIBUS RESPONSE TO DEFENDANTS MOTIONS FOR SUMMARY JUDGMENT re 312 Order on Motion for Miscellaneous Relief by all plaintiffs. (Fresco, Leon) (Entered: 09/17/2007)
319 ORDER: Any defendant wanting to be heard on plaintiffs' motion 318 for leave to exceed the 100 page limit for plaintiffs' omnibus response shall file a response by noon on Thursday, 9/20/07. Signed by Judge Timothy J. Corrigan on 9/18/2007. (SRW) (Entered: 09/18/2007)
320 RESPONSE to motion re 318 MOTION FOR LEAVE TO EXCEED THE ONE−HUNDRED 100 PAGE LIMIT PREVIOUSLY PROVIDED BY THE COURT IN ITS SEPTEMBER 7, 2007 ORDER GRANTING PLAINTIFFS MOTION FOR LEAVE TO FILE AN OMNIBUS RESPONSE TO DEFENDANTS MOTIONS FOR SUMMARY JUDGMENT re 312 Order on M MOTION FOR LEAVE TO EXCEED THE ONE−HUNDRED 100 PAGE LIMIT PREVIOUSLY PROVIDED BY THE COURT IN ITS SEPTEMBER 7, 2007 ORDER GRANTING PLAINTIFFS MOTION FOR LEAVE TO FILE AN OMNIBUS RESPONSE TO DEFENDANTS MOTIONS FOR SUMMARY JUDGMENT re 312 Order on M filed by James McDonough, Randall Bryant. (Martin, William) (Entered: 09/18/2007)
321 RESPONSE to motion re 318 MOTION FOR LEAVE TO EXCEED THE ONE−HUNDRED 100 PAGE LIMIT PREVIOUSLY PROVIDED BY THE COURT IN ITS SEPTEMBER 7, 2007 ORDER GRANTING PLAINTIFFS MOTION FOR LEAVE TO FILE AN OMNIBUS RESPONSE TO DEFENDANTS MOTIONS FOR SUMMARY JUDGMENT re 312 Order on M MOTION FOR LEAVE TO EXCEED THE ONE−HUNDRED 100 PAGE LIMIT PREVIOUSLY PROVIDED BY THE COURT IN ITS SEPTEMBER 7, 2007 ORDER GRANTING PLAINTIFFS MOTION FOR LEAVE TO FILE AN OMNIBUS RESPONSE TO DEFENDANTS MOTIONS FOR SUMMARY JUDGMENT re 312 Order on M filed by James V. Crosby, Jr. (Wasilenko, Ronald) (Entered: 09/20/2007)
322 ORDER granting in part 318 Motion for leave to extend page limit for plaintiffs' omnibus brief. Signed by Judge Timothy J. Corrigan on 9/20/2007.(SRW) (Entered: 09/20/2007)
323 MOTION to strike re 283 Attachment to Plaintiffs' Reasserted Motion to Compel Production from Defendants James McDonough and Randall Bryant of Items Not Produced and Defendants' Responses to Plaintiffs' Eighth Request to Produce, Nor in Response to the Court's Order Dated August 10, 2007, and Memorandum of Law in Support by James V. Crosby, Jr. (Wasilenko, Ronald) Motions referred to Magistrate Judge Howard T. Snyder. Modified on 9/24/2007 to link docket #(PAM ). (Entered: 09/21/2007)
324 RESPONSE in opposition re 323 MOTION to strike Attachment to Plaintiffs' Reasserted Motion to Compel Production from Defendants James McDonough and Randall Bryant of Items Not Produced and Defendants' Responses to Plaintiffs' Eighth Request to Produce, Nor in Res filed by Kelvin Frazier, Curt Massie, Jeremiah Thomas, Sylvester Butler, Eugene Ulrath, Reginald Williams, Paul Echols, Michael McKinney, Charles Morgan, Antonio Ward. (Fresco, Leon) (Entered: 09/24/2007)
325 RESPONSE in opposition re 297 MOTION for summary judgment and Incorporated Memorandum of Law, 306 MOTION for summary judgment, 305 MOTION for summary judgment and Memorandum of Law, 294 MOTION for summary judgment and Memorandum of Law, 289 MOTION for summary

Case: 3:04-cv-917 As of: 09/26/2014 05:10 PM EDT 47 of 60

10/02/2007 10/02/2007
10/04/2007 10/04/2007 10/04/2007 10/04/2007 10/04/2007

judgment, 304 MOTION for summary judgment and Memorandum of Law, 303 MOTION for summary judgment and Memorandum of Law, 292 MOTION for summary judgment and Memorandum of Law, 295 MOTION for summary judgment and Incorporated Memorandum of Law, 253 MOTION for summary judgment with Supporting Memorandum of Law filed by Kelvin Frazier, Curt Massie, Jeremiah Thomas, Sylvester Butler, Eugene Ulrath, Reginald Williams, Paul Echols, Michael McKinney, Charles Morgan, Antonio Ward. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4# 5 Exhibit 5# 6 Exhibit 6# 7 Exhibit 7# 8 Exhibit 8# 9 Exhibit 9_1# 10 Exhibit 9_2# 11 Exhibit 10# 12 Exhibit 11# 13 Exhibit 12# 14 Exhibit 13# 15 Exhibit 14# 16 Exhibit 15# 17 Exhibit 16# 18 Exhibit 17# 19 Exhibit 18# 20 Exhibit 19# 21 Exhibit 20# 22 Exhibit 21# 23 Exhibit 22# 24 Exhibit 23# 25 Exhibit 24# 26 Exhibit 25# 27 Exhibit 26# 28 Exhibit 27# 29 Exhibit 28# 30 Exhibit 29# 31 Exhibit 30# 32 Exhibit 31# 33 Exhibit 32# 34 Exhibit 33# 35 Exhibit 34# 36 Exhibit 35# 37 Exhibit 36# 38 Exhibit 37# 39 Exhibit 38# 40 Exhibit 39# 41 Exhibit 40# 42 Exhibit 41# 43 Exhibit 42# 44 Exhibit 43# 45 Exhibit 44# 46 Exhibit 45# 47 Exhibit 46# 48 Exhibit 47# 49 Exhibit 48# 50 Exhibit 49# 51 Exhibit 50# 52 Exhibit 51# 53 Exhibit 52# 54 Exhibit 53# 55 Exhibit 54# 56 Exhibit 55# 57 Exhibit 56# 58 Exhibit 57# 59 Exhibit 58# 60 Exhibit 59_1# 61 Exhibit 59_2# 62 Exhibit 60# 63 Exhibit 61# 64 Exhibit 62# 65 Exhibit 63# 66 Exhibit 64# 67 Exhibit 65# 68 Exhibit 66# 69 Exhibit 67# 70 Exhibit 68# 71 Exhibit 69# 72 Exhibit 70# 73 Exhibit 71# 74 Exhibit 72# 75 Exhibit 73# 76 Exhibit 74# 77 Exhibit 75# 78 Exhibit 76# 79 Exhibit 77# 80 Exhibit 78# 81 Exhibit 79# 82 Exhibit 80# 83 Exhibit 81# 84 Exhibit 82# 85 Errata 83# 86 Exhibit 84# 87 Exhibit 85# 88 Exhibit 86# 89 Exhibit 87# 90 Exhibit 88# 91 Exhibit 89# 92 Exhibit 90# 93 Exhibit 91# 94 Exhibit 92# 95 Exhibit 93# 96 Errata 94# 97 Exhibit 95# 98 Exhibit 96# 99 Exhibit 97# 100 Exhibit 98# 101 Exhibit 99# 102 Exhibit 100# 103 Exhibit 101# 104 Exhibit 102# 105 Exhibit 103# 106 Exhibit 104# 107 Exhibit 105# 108 Exhibit 106# 109 Exhibit 107# 110 Exhibit 108# 111 Exhibit 109# 112 Exhibit 110# 113 Exhibit 111# 114 Exhibit 112# 115 Exhibit 113# 116 Exhibit 114# 117 Exhibit 115# 118 Exhibit 116# 119 Exhibit 117# 120 Exhibit 118# 121 Exhibit 119# 122 Exhibit 120# 123 Exhibit 121# 124 Exhibit 122# 125 Exhibit 123# 126 Exhibit 124# 127 Exhibit 125# 128 Exhibit 126# 129 Exhibit 127# 130 Exhibit 128# 131 Errata 129# 132 Exhibit 130)(Schulz, George) (Entered: 09/27/2007)
326 ORDER denying 283 Motion to compel. Signed by Judge Howard T. Snyder on 10/2/2007. (LU) (Entered: 10/02/2007)
327 ORDER: In light of the Court's denial of Plaintiffs' Reasserted Motion to Compel Production from Defendants James McDonough and Randall Bryant of Items Not Produced in Defendants' Responses to Plaintiffs' Eighth Request to Produce, Nor in Response to the Court's Order Dated August 10, 2007 283 , see Order 326 , Defendant Crosby's Motion to Strike Attachment to Plaintiffs' Reasserted Motion to Compel Production from Defendants James McDonough and Randall Bryant of Items Not Produced and Defendants' Responses to Plaintiffs' Eighth Request to Produce, Nor in Response to the Court's Order Dated August 10, 2007 323 is DENIED as MOOT.Signed by Judge Howard T. Snyder on 10/2/2007. (LU) (Entered: 10/02/2007)
328 First MOTION in limine by Oscar Shipley. (Glass, Michael) (Entered: 10/04/2007)
329 Second MOTION in limine by Oscar Shipley. (Glass, Michael) (Entered: 10/04/2007)
330 Third MOTION in limine by Oscar Shipley. (Glass, Michael) (Entered: 10/04/2007)
331 MOTION to strike re 325 Certain Exhibits Attached to Plainitffs' Response to Defendants' Motion for Summary Judgment by James McDonough, Randall Bryant. (Attachments: # 1)(Martin, William) Motions referred to Magistrate Judge Howard T. Snyder. Modified on 10/10/2007 to link (PAM). (Entered: 10/04/2007)
332 MOTION for leave to file Reply to Plaintiffs' Response to Motion for Summary Judgment by James McDonough, Randall Bryant. (Martin, William) (Entered: 10/04/2007)

Case: 3:04-cv-917 As of: 09/26/2014 05:10 PM EDT 48 of 60

10/04/2007 10/05/2007 10/05/2007
10/05/2007 10/10/2007 10/11/2007 10/11/2007
10/11/2007 10/11/2007 10/11/2007 10/12/2007 10/12/2007 10/12/2007 10/12/2007

333 MOTION for leave to file a reply to plaintiffs' omnibus response in opposition to defendants' motions for summary judgment by Bradley Carter, George Sapp, Michael Rathmann, Stacey Green. (Bridgers, J.) (Entered: 10/04/2007)
334 MOTION for leave to file Reply to Plaintiffs' Omnibus Response in Opposition to Defendants' Motions for Summary Judgment by James V. Crosby, Jr. (Wasilenko, Ronald) (Entered: 10/05/2007)
335 RESPONSE to motion re 333 MOTION for leave to file a reply to plaintiffs' omnibus response in opposition to defendants' motions for summary judgment, 332 MOTION for leave to file Reply to Plaintiffs' Response to Motion for Summary Judgment, 334 MOTION for leave to file Reply to Plaintiffs' Omnibus Response in Opposition to Defendants' Motions for Summary Judgment filed by Kelvin Frazier, Curt Massie, Jeremiah Thomas, Sylvester Butler, Eugene Ulrath, Reginald Williams, Paul Echols, Michael McKinney, Charles Morgan, Antonio Ward. (Fresco, Leon) (Entered: 10/05/2007)
336 ORDER granting [332, 333, 334] to extent that each defendant permitted to file 5 page summary judgment reply brief by 10/12/07; plaintiffs permitted to file omnibus 25 page sur−reply by 10/19/07. Signed by Judge Timothy J. Corrigan on 10/5/2007.(SRW) (Entered: 10/05/2007)
337 Unopposed MOTION For Extension of Time to Respond to All Motions in Limine re 328 First MOTION in limine, 330 Third MOTION in limine, 329 Second MOTION in limine by all plaintiffs. (Fresco, Leon) (Entered: 10/10/2007)
338 MOTION to strike Supplemental Expert Report of Plaintiffs' Expert, Chase Riveland by James V. Crosby, Jr. (Wasilenko, Ronald) Motions referred to Magistrate Judge Howard T. Snyder. (Entered: 10/11/2007)
339 RESPONSE to motion re 298 MOTION to Exclude Plaintiffs' Corrections/Prison Expert, Chase Riveland, and Incorporated Memorandum of Law filed by Kelvin Frazier, Curt Massie, Jeremiah Thomas, Sylvester Butler, Eugene Ulrath, Reginald Williams, Paul Echols, Michael McKinney, Charles Morgan, Antonio Ward. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4# 5 Exhibit 5# 6 Exhibit 6)(Schulz, George) (Entered: 10/11/2007)
340 ENDORSED ORDER granting 337 Unopposed Motion for extension of time for all parties to respond to any motions in limine (including but not limited to those motions already filed: [328, 329, 330]); deadline for responses to be set at final pretrial conference. Signed by Judge Timothy J. Corrigan on 10/11/2007. (SRW) (Entered: 10/11/2007)
341 RESPONSE to motion re 296 MOTION to disqualify Expert Testimony of Defendants' Expert Richard Lipsey filed by James McDonough, Bradley Carter, George Sapp, Michael Rathmann, Allen Clark, James V. Crosby, Jr, Stacey Green, Randall Bryant, Oscar Shipley. (Attachments: # 1 Exhibit)(Bridgers, J.) (Entered: 10/11/2007)
342 MOTION to strike Certain Exhibits Attached re 325 to Plaintiffs' Omnibus Response in Opposition to Defendants' Motions for Summary Judgment and Incorporated Memorandum of Law by James V. Crosby, Jr. (Wasilenko, Ronald) Motions referred to Magistrate Judge Howard T. Snyder. Modified on 10/12/2007 (PAM). (Entered: 10/11/2007)
343 REPLY to response to motion re 297 MOTION for summary judgment and Incorporated Memorandum of Law Defendant Crosby's Reply to Plaintiffs' Omnibus Response in Opposition to Defendants' Motions for Summary Judgment filed by James V. Crosby, Jr. (Wasilenko, Ronald) (Entered: 10/12/2007)
344 REPLY re 325 Response in opposition to motion, filed by Bradley Carter. (Bridgers, J.) Modified on 10/12/2007 to correct text(PAM). (Entered: 10/12/2007)
345 REPLY re 325 Response in opposition to motion, filed by George Sapp. (Bridgers, J.) Modified on 10/12/2007 (PAM). (Entered: 10/12/2007)
346 REPLY re 325 Response in opposition to motion, filed by Stacey Green. (Attachments: # 1 Exhibit)(Bridgers, J.) Modified on 10/12/2007 (PAM ).

Case: 3:04-cv-917 As of: 09/26/2014 05:10 PM EDT 49 of 60

10/12/2007 10/12/2007 10/12/2007
10/12/2007 10/15/2007 10/16/2007 10/18/2007
10/18/2007
10/19/2007 10/22/2007
10/25/2007

(Entered: 10/12/2007)
347 Reply re 325 Response in opposition to motion, filed by Michael Rathmann. (Attachments: # 1 Exhibit # 2 Exhibit # 3 Exhibit # 4 Exhibit # 5 Exhibit # 6 Exhibit # 7 Exhibit # 8 Exhibit # 9 Exhibit)(Bridgers, J.) Modified on 10/12/2007 (PAM). (Entered: 10/12/2007)
348 MOTION to exceed page limit of their reply to 325 to PLAINTIFFS OMNIBUS RESPONSE by James McDonough, Randall Bryant. (Martin, William) Modified on 10/15/2007 to link motion (PAM). (Entered: 10/12/2007)
349 REPLY re 325 Response in opposition to motion, REPLY TO PLAINTIFFS OMNIBUS RESPONSE IN OPPOSITION TO DEFENDANTS MOTIONS FOR SUMMARY JUDGMENT filed by James McDonough, Randall Bryant. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 4)(Martin, William) Modified on 10/15/2007 correct text (PAM ). Modified on 10/16/2007 (PAM). (Entered: 10/12/2007)
350 REPLY to response to motion re 325 response in opposition 289 MOTION for summary judgment −− Reply to Plaintiffs' Response to Clark's, and Other defendants, MSJ, filed by Allen Clark. (Waczewski, James) Modified on 10/19/2007 (PAM). (Entered: 10/13/2007)
351 NOTICE by James McDonough, Randall Bryant re 348 MOTION to exceed page limit OF THEIR REPLY TO PLAINTIFFS OMNIBUS RESPONSE re: NOTICE TO THE COURT PURSUANT TO LOCAL RULE 3.01(g) (Martin, William) (Entered: 10/15/2007)
352 NOTICE by James V. Crosby, Jr to the Court Pursuant to Local Rule 3.01(g) (Wasilenko, Ronald) (Entered: 10/16/2007)
353 RESPONSE in opposition re 331 MOTION to strike Certain Exhibits Attached to Plainitffs' Response to Defendants' Motion for Summary Judgment, 338 MOTION to strike Supplemental Expert Report of Plaintiffs' Expert, Chase Riveland filed by Kelvin Frazier, Curt Massie, Jeremiah Thomas, Sylvester Butler, Eugene Ulrath, Reginald Williams, Paul Echols, Michael McKinney, Charles Morgan, Antonio Ward. (Attachments: # 1 Exhibit 1 − Riveland Deposition# 2 Exhibit 2 − Burns deposition 2.28.06# 3 Exhibit 3 − Burns deposition 6−20−07)(Capobianco, Cassandra) (Entered: 10/18/2007)
354 RESPONSE re 345 Response, 344 Response, 343 Reply to response to motion, 349 Response, 346 Response, 350 Reply to response to motion, 347 Response, filed by Kelvin Frazier, Curt Massie, Jeremiah Thomas, Sylvester Butler, Eugene Ulrath, Reginald Williams, Paul Echols, Michael McKinney, Charles Morgan, Antonio Ward. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4# 5 Exhibit 5# 6 Exhibit 6# 7 Exhibit 7# 8 Exhibit 8# 9 Exhibit 9# 10 Exhibit 10# 11 Exhibit 11# 12 Exhibit 12# 13 Exhibit 13)(Fresco, Leon) (Entered: 10/18/2007)
355 MOTION for leave for Plaintiffs' counsel to bring electronic equipment to November 1, 2007 hearing and all future appearances by all plaintiffs. (Capobianco, Cassandra) (Entered: 10/19/2007)
356 ENDORSED ORDER granting 355 Motion and permitting counsel for all parties to bring cell phones, laptop computers and similar electronic devices into the Courthouse for all hearings in this case, including the hearing scheduled for November 1, 2007; counsel shall present a copy of this Order to Court Security Officers when entering the building with such equipment. Signed by Judge Timothy J. Corrigan on 10/22/2007. (SRW) (Entered: 10/22/2007)
357 RESPONSE in opposition re 342 MOTION to strike Certain Exhibits Attached to Plaintiffs' Omnibus Response in Opposition to Defendants' Motions for Summary Judgment and Incorporated Memorandum of Law filed by Kelvin Frazier, Curt Massie, Jeremiah Thomas, Sylvester Butler, Eugene Ulrath, Reginald Williams, Paul Echols, Michael McKinney, Charles Morgan, Antonio Ward. (Attachments: # 1 Exhibit 1 − Thomas's Response to McDonough and Bryant Interrogatories# 2 Exhibit 2 − All Plaintiffs' responses to McDonough and Bryant's Interrogatories# 3 Exhibit 3 − Plaintiffs' Responses to Crosby's Interrogatories# 4 Exhibit 4 −

Case: 3:04-cv-917 As of: 09/26/2014 05:10 PM EDT 50 of 60

10/31/2007
10/31/2007 11/01/2007 11/06/2007 11/09/2007 11/20/2007 12/04/2007 12/04/2007 12/20/2007 01/09/2008 01/15/2008 01/29/2008

Crosby's Amended Rule 26(a)(1) Initial Disclosures# 5 Exhibit 5− Thornton Suggestion of Death# 6 Exhibit 6 − McRae deposition additional excerpts# 7 Exhibit 7 − Crosby deposition additional excerpts# 8 Exhibit 8 − Clark plea agreement factual basis# 9 Exhibit 9 − Clark deposition additional excerpts# 10 Exhibit 10 − Affidavit of Leon Fresco)(Capobianco, Cassandra) (Entered: 10/25/2007)
358 NOTICE of Filing Additional Exhibits to Plaintiffs' Omnibus Response in Opposition to Defendants' Motions for Summary Judgment by Kelvin Frazier, Curt Massie, Jeremiah Thomas, Sylvester Butler, Eugene Ulrath, Reginald Williams, Paul Echols, Michael McKinney, Charles Morgan, Antonio Ward re 354 Response, 325 Response in opposition to motion (Attachments: # 1 Exhibit 120−A# 2 Exhibit 106−A# 3 Exhibit 47−A# 4 Exhibit 106B# 5 Exhibit 42−B# 6 Exhibit 42−C# 7 Exhibit 42−D# 8 Exhibit 42−E)(Fresco, Leon) Modified on 11/1/2007 to edit text (JLM, ). (Entered: 10/31/2007)
359 MOTION to strike 358 Notice (Other), Notice (Other), Notice (Other) additional exhibits filed by Plaintiffs by James McDonough, Randall Bryant. (Martin, William) Motions referred to Magistrate Judge Howard T. Snyder. (Entered: 10/31/2007)
360 MINUTE ENTRY for proceedings held before Judge Timothy J. Corrigan: Proceedings of pending motions and status re: trial on 11/1/2007. Court Reporter: Shannon Bishop. (md) (Entered: 11/06/2007)
Case Reassigned to Judge James R. Klindt. New case number: 3:04−cv−917−J−32JRK. Judge Howard T. Snyder no longer assigned to the case. (SJW, ) (Entered: 11/06/2007)
361 ORDER referring case to the Honorable Harvey E. Schlesinger, Sr. United States District Judge, to conduct settlement conference (plaintiffs' counsel to coordinate); vacating remaining pretrial and trial dates; motions to be held in abeyance. Signed by Judge Timothy J. Corrigan on 11/9/2007. (SRW) (Entered: 11/09/2007)
362 TRANSCRIPT of Motion Hearing held on 11/1/2007 before Judge Timothy J. Corrigan. Court Reporter: Shannon M. Bishop. (PAM) (Entered: 11/21/2007)
363 ORDER: Permitting the Plaintiffs and Defendants use of one (1) laptop and one (1) cell phone into the building for use during the settlement conference on 1/10/2008, at 8:00 a.m. Signed by Judge Harvey E. Schlesinger on 12/4/2007. (PAM) (Entered: 12/06/2007)
364 ORDER: Settlement Conference set on 1/10/2008 at 8:00 a.m. in courtroom 10C before the Honorable Harvey E. Schlesinger, Senior U.S. District Judge. OPEN memorandum should not be filed with the Clerk's Office as set forth in Order. Signed by Judge Harvey E. Schlesinger on 12/4/2007. (PAM) Modified on 12/6/2007 to correct text (PAM). (Entered: 12/06/2007)
365 NOTICE OF RESCHEDULING SETTLEMENT CONFERENCE (AS TO TIME ONLY): The settlement conference previously set for 1/10/2008 at 8:00 a.m. is rescheduled. New scheduling date and time: Settlement Conference set for 1/10/2008 at 9:30 AM before Judge Harvey E. Schlesinger (SRW) (Entered: 12/20/2007)
366 NOTICE by Oscar Shipley of Conflict (Glass, Michael) Modified on 1/10/2008 (PAM). (Counsel Glass notified to use correct case number on future pleadings) (Entered: 01/09/2008)
367 NOTICE of Appearance by Kathleen Marie Von Hoene on behalf of James McDonough, Randall Bryant (Von Hoene, Kathleen) Modified on 1/15/2008 (PAM). (Counsel Von Hoene notified to use correct case number on future pleadings) (Entered: 01/15/2008)
368 NOTICE by Kelvin Frazier, Curt Massie, Jeremiah Thomas, Sylvester Butler, Eugene Ulrath, Reginald Williams, Paul Echols, Michael McKinney, Charles Morgan, Antonio Ward re 361 Order, To the Court in Response to Order of November 9, 2007 (Schulz, George) Modified on 1/30/2008 (PAM). (Counsel Schultz notified to use correct case number on future pleadings) (Entered:

Case: 3:04-cv-917 As of: 09/26/2014 05:10 PM EDT 51 of 60

04/15/2008 04/25/2008 04/25/2008
05/09/2008
05/16/2008 05/19/2008 05/19/2008 05/19/2008 05/28/2008 06/03/2008

01/29/2008)
369 ORDER directing parties to file joint notice of case status by 4/25/08. Signed by Judge Timothy J. Corrigan on 4/15/2008. (SRW) (Entered: 04/15/2008)
370 Unopposed MOTION to dismiss Plaintiff Butler's Remaining Claims by Kelvin Frazier, Curt Massie, Jeremiah Thomas, Sylvester Butler, Eugene Ulrath, Reginald Williams, Paul Echols, Michael McKinney, Charles Morgan, Antonio Ward. (Schulz, George) Modified on 4/28/2008 (PAM). (Counsel notified to use correct case number on future pleadings) (Entered: 04/25/2008)
371 JOINT NOTICE of the status of this action by Kelvin Frazier, Curt Massie, Jeremiah Thomas, Sylvester Butler, Eugene Ulrath, Reginald Williams, Paul Echols, James McDonough, Michael McKinney, Bradley Carter, Charles Morgan, George Sapp, Antonio Ward, Stephen Sirmones, Michael Rathmann, Joe Lazenby, Jr, Allen Clark, Mark Redd, Keith Musselman, Tony Anderson, James Wilson, William Muse, James V. Crosby, Jr, Colin Halle, Steven Tricocci, Tim Chastain, Rodney Barnett, Ronnie Barton, Kenneth Lampp, Wendell Whitehurst, Stacey Green, David Reynolds, John Riggs, Randall Bryant, Glynn Reeder, John Rizer, Oscar Shipley, Dean Ellis, Jeffrey Lindsey, Billy Jarvis (Schulz, George) Modified on 4/25/2008 to correct text only (LRB). (Entered: 04/25/2008)
372 ORDER re: 370 , 371 ; granting 370 Motion to dismiss as to plaintiff Sylvester Butler; terminating the following pending motions: 289 , 294 , 295 , 297 , 298 , 303 , 304 , 305 , 328 , 329 , 330 , 331 , 338 , 342 , 348 , 359 ; Court to issue separate order ruling on remaining motions; parties to file status re: settling parties by 6/10/08 if papers not complete; following deadlines set for trial on remaining equitable/injunctive relief claims: telephone status set for 8/1/08, 11:00 a.m.; pretrial statement due 8/12/08; FPTC set for 8/18/08 at 2:00 p.m.; non−jury trial set 9/3/08−9/10/08, Courtroom 10B. Signed by Judge Timothy J. Corrigan on 5/9/2008.(SRW) (Entered: 05/09/2008)
373 NOTICE of Appearance by Denis Allen Dean on behalf of Walter A. McNeil and Randall Bryant(Dean, Denis) Modified on 5/19/2008 (PAM). (Counsel notified to use correct case number on future pleadings) (Entered: 05/16/2008)
374 STIPULATION of Dismissal of Plaintiff Curt Massie's Claims by Kelvin Frazier, Curt Massie, Jeremiah Thomas, Eugene Ulrath, Reginald Williams, Paul Echols, Michael McKinney, Bradley Carter, Charles Morgan, George Sapp, Antonio Ward, Michael Rathmann, Allen Clark, James V. Crosby, Jr, Stacey Green, Oscar Shipley. (Capobianco, Cassandra) Modified on 5/20/2008 (PAM). (Counsel directed to use correct case number on future pleadings) (Entered: 05/19/2008)
375 STIPULATION of Dismissal of Plaintiff Ulrath's Claims by Kelvin Frazier, Curt Massie, Jeremiah Thomas, Eugene Ulrath, Reginald Williams, Paul Echols, Michael McKinney, Bradley Carter, Charles Morgan, George Sapp, Antonio Ward, Michael Rathmann, Allen Clark, James V. Crosby, Jr, Stacey Green, Oscar Shipley. (Capobianco, Cassandra) Modified on 5/20/2008 (PAM). (Counsel directed to use correct case number on future pleadings) (Entered: 05/19/2008)
376 STIPULATION for Entry of an Order of Partial Dismissal (Plaintiffs Thomas' and McKinney's damages claims only) by Kelvin Frazier, Curt Massie, Jeremiah Thomas, Eugene Ulrath, Reginald Williams, Paul Echols, Michael McKinney, Bradley Carter, Charles Morgan, George Sapp, Antonio Ward, Michael Rathmann, Allen Clark, James V. Crosby, Jr, Stacey Green, Oscar Shipley. (Capobianco, Cassandra) (Entered: 05/19/2008)
377 ORDER re 374 , 375 , 376 Stipulations; dismissing certain parties and/or claims as directed in Order. Signed by Judge Timothy J. Corrigan on 5/28/2008. (SRW) (Entered: 05/28/2008)
378 NOTICE OF RESCHEDULING HEARING: The Final Pretrial Conference previously scheduled for 8/18/08 is rescheduled. New scheduling date and time:Final Pretrial Conference set for 8/20/2008 at 2:00 PM in Courtroom 10 B before Judge Timothy J. Corrigan (pretrial statement now due 8/14/08).(SRW) (Entered: 06/03/2008)

Case: 3:04-cv-917 As of: 09/26/2014 05:10 PM EDT 52 of 60

06/09/2008 06/10/2008 06/11/2008 06/12/2008
06/24/2008 06/26/2008 07/01/2008 07/18/2008 07/18/2008
07/18/2008 07/18/2008 07/24/2008
07/28/2008 07/30/2008

379 MOTION in limine and request for oral argument, or alternatively, request for case management conference by Randall Bryant. (Martin, William) Modified on 6/10/2008 (PAM). (Counsel notified to use correct case number on future pleadings) (Entered: 06/09/2008)
380 Unopposed MOTION for Michael Agliata to withdraw as attorney by Kelvin Frazier, Jeremiah Thomas, Sylvester Butler, Reginald Williams, Paul Echols, Michael McKinney, Charles Morgan, Antonio Ward. (Schulz, George) Motions referred to Magistrate Judge James R. Klindt. (Entered: 06/10/2008)
381 ORDER granting 380 Unopposed Motion to Withdraw as Counsel. Signed by Magistrate Judge James R. Klindt on 6/11/2008. (KAS) (Entered: 06/11/2008)
382 RESPONSE to motion re 379 MOTION in limine AND REQUEST FOR ORAL ARGUMENT, OR ALTERNATIVELY, REQUEST FOR CASE MANAGEMENT CONFERENCE filed by Kelvin Frazier, Jeremiah Thomas, Sylvester Butler, Reginald Williams, Paul Echols, Michael McKinney, Charles Morgan, Antonio Ward. (Attachments: # 1 Exhibit A)(Schulz, George) (Entered: 06/12/2008)
383 ORDER setting 7/18/08 as deadline for filing motions in limine and other substantive motions; 8/1/08 for responses; denying without prejudice 379 Motion in limine. Signed by Judge Timothy J. Corrigan on 6/24/2008.(SRW) (Entered: 06/24/2008)
384 NOTICE of supplemental authority re 306 MOTION for summary judgment by Walter A. McNeil (Attachments: # 1 Exhibit Order)(Martin, William) Modified on 6/27/2008 to add filer (PAM). (Counsel notified to use correct case number on future pleadings) (Entered: 06/26/2008)
385 RESPONSE re 384 Notice of supplemental authority filed by Kelvin Frazier, Jeremiah Thomas, Reginald Williams, Paul Echols, Michael McKinney, Charles Morgan, Antonio Ward. (Capobianco, Cassandra) (Entered: 07/01/2008)
386 NOTICE to the Courts to take judicial notice regarding Federal Court Records by Kelvin Frazier, Jeremiah Thomas, Sylvester Butler, Reginald Williams, Paul Echols, Michael McKinney, Charles Morgan, Antonio Ward. (Fresco, Leon) (Entered: 07/18/2008)
387 AMENDED NOTICE to the Courts to take judicial notice regarding Judicial Records by Kelvin Frazier, Curt Massie, Jeremiah Thomas, Sylvester Butler, Eugene Ulrath, Reginald Williams, Paul Echols, Michael McKinney, Charles Morgan, Antonio Ward. (Fresco, Leon) Modified on 7/21/2008 to correct text(PAM). (Entered: 07/18/2008)
388 MOTION in limine by Walter A. McNeil, Randall Bryant. (Martin, William) (Entered: 07/18/2008)
389 RESPONSE re 387 Amended Notice to the Courts to take judicial notice filed by Walter A. McNeil, Randall Bryant. (Martin, William) Modified on 7/21/2008 to correct text (PAM). (Entered: 07/18/2008)
390 ORDER denying 296 Motion to exclude expert testimony (to extent stated); denying 306 Motion for summary judgment; denying 253 Motion for summary judgment; cancelling 8/1/08 telephone status; case remains set for FPTC on 8/20/08 at 2:00 p.m. Signed by Judge Timothy J. Corrigan on 7/24/2008.(SRW) (Entered: 07/24/2008)
391 MOTION for reconsideration re 390 Order on motion to disqualifyOrder on motion for summary judgment by Walter A. McNeil, Randall Bryant. (Martin, William) (Entered: 07/28/2008)
392 RESPONSE in opposition re 391 MOTION for reconsideration re 390 Order on motion to disqualifyOrder on motion for summary judgment filed by Kelvin Frazier, Jeremiah Thomas, Sylvester Butler, Reginald Williams, Paul Echols, Michael McKinney, Charles Morgan, Antonio Ward. (Fresco, Leon) (Entered: 07/30/2008)

Case: 3:04-cv-917 As of: 09/26/2014 05:10 PM EDT 53 of 60

07/30/2008 08/06/2008
08/07/2008
08/08/2008 08/12/2008
08/13/2008 08/20/2008 08/25/2008 08/28/2008 08/28/2008 08/28/2008 08/28/2008 08/28/2008 08/28/2008 08/29/2008

393 RESPONSE in opposition re 388 MOTION in limine filed by Kelvin Frazier, Jeremiah Thomas, Sylvester Butler, Reginald Williams, Paul Echols, Michael McKinney, Charles Morgan, Antonio Ward. (Fresco, Leon) (Entered: 07/30/2008)
394 NOTICE: All proceedings set before the Honorable Timothy J. Corrigan will now be held in COURTROOM 10D . Additionally, counsel are advised that cell phone and laptop storage lockers are now available at the Jacksonville Courthouse upon presentation to Court Security Officers of a valid Florida Bar card or Order of special admission pro hac vice. (SMS) (Entered: 08/06/2008)
395 JOINT PRETRIAL STATEMENT by Kelvin Frazier, Walter A. McNeil, Jeremiah Thomas, Sylvester Butler, Reginald Williams, Paul Echols, Michael McKinney, Charles Morgan, Antonio Ward, Randall Bryant. (Attachments: # 1 Exhibit A−D)(Fresco, Leon) Modified on 8/8/2008 to correct text (PAM). (Entered: 08/07/2008)
396 MOTION to strike Witness (Elio Maden) by Walter A. McNeil and Randall Bryant. (Dean, Denis) Motions referred to Magistrate Judge James R. Klindt. Modified on 8/11/2008 to add filer (PAM). (Entered: 08/08/2008)
397 RESPONSE in opposition re 396 MOTION to strike Witness (Elio Maden) and Incorporated Memorandum of Law filed by Kelvin Frazier, Jeremiah Thomas, Sylvester Butler, Reginald Williams, Paul Echols, Michael McKinney, Charles Morgan, Antonio Ward. (Attachments: # 1 Exhibit Exhibit 1, # 2 Exhibit Exhibit 2)(Schulz, George) (Entered: 08/12/2008)
398 First MOTION for Habeas Corpus Ad Testificandum for Plaintiffs Thomas, McKinney, Echols, and Ward by all plaintiffs. (Capobianco, Cassandra) (Entered: 08/13/2008)
399 NOTICE OF RESCHEDULING HEARING: The Final Pretrial Conference previously scheduled for 8/20/08 is rescheduled. New scheduling date and time:Final Pretrial Conference set for 8/25/2008 at 3:00 PM in Courtroom 10 D before Judge Timothy J. Corrigan (SRW) (Entered: 08/20/2008)
406 Minute Entry. Proceedings held before Judge Timothy J. Corrigan: FINAL PRETRIAL CONFERENCE held on 8/25/2008. Order to Enter. Court Reporter: Shannon Bishop. (MD) (Entered: 08/28/2008)
400 Plaintiffs' Motion for Order Permitting Use of Electronic Equipment in the Courtroom During Trial. (MD) (Entered: 08/28/2008)
401 ORDER granting 400 Plaintiffs' Motion for Order Permitting Use of Electronic Equipment in the Courtroom During Trial. Signed by Judge Timothy J. Corrigan on 8/28/2008. (MD) (Entered: 08/28/2008)
402 ORDER granting 398 Motion Writ of Habeas Corpus Ad Testificandum re: Antonio Ward. Signed by Judge Timothy J. Corrigan on 8/28/2008. (MD) (Entered: 08/28/2008)
403 ORDER granting 398 Motion Writ of Habeas Corpus Ad Testificandum re: Michael McKinney. Signed by Judge Timothy J. Corrigan on 8/28/2008. (MD) (Entered: 08/28/2008)
404 ORDER granting 398 Motion Writ of Habeas Corpus Ad Testificandum re: Jeremiah Thomas. Signed by Judge Timothy J. Corrigan on 8/28/2008. (MD) ( Modified on 8/29/2008 (PAM). (Additional attachments added per chambers) (Entered: 08/28/2008)
405 ORDER granting 398 Motion Writ of Habeas Corpus Ad Testificandum re: Paul Echols. Signed by Judge Timothy J. Corrigan on 8/28/2008. (MD) (Entered: 08/28/2008)
407 ORDER SCHEDULING NON−JURY TRIAL: trial to commence 9/3/08 at 9:00 a.m., Courtroom 10D; outlining procedures; denying without prejudice 388 Motion in limine, 396 Motion to strike, and 387 Request for Judicial Notice; denying 391 Motion for reconsideration; briefs due 9/1/08 by noon. Signed by Judge Timothy J. Corrigan on 8/29/2008.(SRW) (Entered: 08/29/2008)

Case: 3:04-cv-917 As of: 09/26/2014 05:10 PM EDT 54 of 60

09/01/2008 09/01/2008
09/01/2008 09/03/2008 09/04/2008 09/05/2008 09/05/2008 09/08/2008 09/08/2008 09/09/2008 09/09/2008
09/09/2008 09/09/2008 09/09/2008 09/09/2008 09/18/2008
09/18/2008

408 TRIAL BRIEF by Kelvin Frazier, Jeremiah Thomas, Sylvester Butler, Reginald Williams, Paul Echols, Michael McKinney, Charles Morgan, Antonio Ward. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Fresco, Leon) (Entered: 09/01/2008)
409 NOTICE by Kelvin Frazier, Curt Massie, Jeremiah Thomas, Sylvester Butler, Eugene Ulrath, Reginald Williams, Paul Echols, Michael McKinney, Charles Morgan, Antonio Ward AND REQUEST FOR EXCEPTION TO FEDERAL RULE OF EVIDENCE 615 FOR PLAINTIFFS' EXPERT WITNESSES (Glickman, Joshua) (Entered: 09/01/2008)
410 TRIAL BRIEF by Walter A. McNeil, Randall Bryant. (Martin, William) (Entered: 09/01/2008)
412 Minute Entry. Proceedings held before Judge Timothy J. Corrigan: BENCH TRIAL commenced on 9/3/2008. Court Reporter: Shannon Bishop. (MD) (Entered: 09/15/2008)
413 Minute Entry. Proceedings held before Judge Timothy J. Corrigan: BENCH TRIAL held on 9/4/2008. Court Reporter: Shannon Bishop. (MD) (Entered: 09/15/2008)
411 NOTICE of Filing deposition transcripts by Walter A. McNeil, Randall Bryant. (Filed in Open Court)(exhibits filed separately and not scanned) (MGG) (Entered: 09/09/2008)
414 Minute Entry. Proceedings held before Judge Timothy J. Corrigan: BENCH TRIAL held on 9/5/2008. Court Reporter: Shannon Bishop. (MD) (Entered: 09/15/2008)
415 ORAL MOTION for Judgment Under Rule 52 by defendant. (MD) (Entered: 09/15/2008)
416 Minute Entry. Proceedings held before Judge Timothy J. Corrigan: BENCH TRIAL held on 9/8/2008. Denying 415 Oral Motion for Judgment Under Rule 52. Court Reporter: Shannon Bishop. (MD) (Entered: 09/15/2008)
417 ORAL MOTION for Judgment Under Rule 52 by defendant. (MD) (Entered: 09/15/2008)
418 Minute Entry. Proceedings held before Judge Timothy J. Corrigan: BENCH TRIAL completed on 9/9/2008. Denying 417 Oral Motion for Judgment Under Rule 52 to the extent that Court declines to rule until close of case. Parties proposed Findings of Fact and Conclusions of Law due by 10/6/08; limited to 40 pages per side. Court Reporter: Shannon Bishop. (MD) (Entered: 09/15/2008)
419 WITNESS LIST by Plaintiffs. (MD) (Entered: 09/15/2008)
420 WITNESS LIST by Defendants. (MD) (Entered: 09/15/2008)
421 EXHIBIT LIST by Plaintiffs.(MD) (Entered: 09/15/2008)
422 EXHIBIT LIST by Defendants.(MD) (Entered: 09/15/2008)
423 TRANSCRIPT of Trial Proceedings held on September 3, 2008 before Judge Timothy J. Corrigan. Court Reporter/Transcriber Shannon M. Bishop, RMR, CRR; dsmabishop@yahoo.com,Telephone number (904)549−1307. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER or purchased through the Court Reporter. Redaction Request due 10/9/2008, Redacted Transcript Deadline set for 10/20/2008, Release of Transcript Restriction set for 12/17/2008. (SB) (Entered: 09/18/2008)
424 TRANSCRIPT of Trial Proceedings (Volume II) held on September 4, 2008 before Judge Timothy J. Corrigan. Court Reporter/Transcriber Shannon M. Bishop, RMR, CRR; dsmabishop@yahoo.com,Telephone number (904)549−1307. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER or purchased through the Court

Case: 3:04-cv-917 As of: 09/26/2014 05:10 PM EDT 55 of 60

09/18/2008
09/18/2008
09/18/2008
09/18/2008
10/03/2008 10/03/2008 10/06/2008 10/06/2008 10/06/2008 01/09/2009

Reporter. Redaction Request due 10/9/2008, Redacted Transcript Deadline set for 10/20/2008, Release of Transcript Restriction set for 12/17/2008. (SB) (Entered: 09/18/2008)
425 TRANSCRIPT of Trial Proceedings (Volume III) held on September 5, 2008 before Judge Timothy J. Corrigan. Court Reporter/Transcriber Shannon M. Bishop, RMR, CRR; dsmabishop@yahoo.com,Telephone number (904)549−1307. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER or purchased through the Court Reporter. Redaction Request due 10/9/2008, Redacted Transcript Deadline set for 10/20/2008, Release of Transcript Restriction set for 12/17/2008. (SB) (Additional attachment(s) added on 11/5/2008: # 1 Main Document; incorrect pdf attached, replaced with correct pdf) (SMS). (Entered: 09/18/2008)
426 TRANSCRIPT of Trial Proceedings (Volume IV) held on September 8, 2008 before Judge Timothy J. Corrigan. Court Reporter/Transcriber Shannon M. Bishop, RMR, CRR; dsmabishop@yahoo.com,Telephone number (904)549−1307. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER or purchased through the Court Reporter. Redaction Request due 10/9/2008, Redacted Transcript Deadline set for 10/20/2008, Release of Transcript Restriction set for 12/17/2008. (SB) (Entered: 09/18/2008)
427 TRANSCRIPT of Trial Proceedings (Volume V) held on September 9, 2008 before Judge Timothy J. Corrigan. Court Reporter/Transcriber Shannon M. Bishop, RMR, CRR; dsmabishop@yahoo.com,Telephone number (904)549−1307. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER or purchased through the Court Reporter. Redaction Request due 10/9/2008, Redacted Transcript Deadline set for 10/20/2008, Release of Transcript Restriction set for 12/17/2008. (SB) (Entered: 09/18/2008)
428 NOTICE to counsel of filing of OFFICIAL TRANSCRIPTS (Trial Proceedings, Volumes I through V). The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days. Any party needing a copy of the transcript to review for redaction purposes may purchase a copy from the court reporter or view the document at the clerk's office public terminal. Court Reporter: Shannon Bishop, RMR, CRR; dsmabishop@yahoo.com; (904)549−1307 (SB) (Entered: 09/18/2008)
429 SUPPLEMENT Request for Leave to Supplement Trial Record by Walter A. McNeil, Randall Bryant. (Attachments: # 1 Exhibit Attachment A)(Martin, William) (Entered: 10/03/2008)
430 SUPPLEMENT Substituted Request for Leave to Supplement Trial Record, or in the Alternative Motion to Reopen by Walter A. McNeil, Randall Bryant. (Martin, William) (Entered: 10/03/2008)
431 PROPOSED FINDINGS OF FACT and conclusions of law by Kelvin Frazier, Jeremiah Thomas, Reginald Williams, Paul Echols, Michael McKinney, Charles Morgan, Antonio Ward. (Capobianco, Cassandra) (Entered: 10/06/2008)
432 RESPONSE re 430 Supplement Substituted Request for Leave to Supplement Trial Record, or, Alternatively, Motion to Reopen Trial to Supplement the Trial Record filed by Kelvin Frazier, Reginald Williams, Paul Echols, Michael McKinney, Antonio Ward. (Glickman, Joshua) (Entered: 10/06/2008)
433 PROPOSED FINDINGS OF FACT and conclusions of law by Walter A. McNeil, Randall Bryant. (Martin, William) (Entered: 10/06/2008)
434 FINDINGS OF FACT AND CONCLUSIONS OF LAW. Signed by Judge Timothy J. Corrigan on 1/9/2009. (SRW) Modified on 01/12/09: PDF edited on

Case: 3:04-cv-917 As of: 09/26/2014 05:10 PM EDT 56 of 60

01/14/2009 01/26/2009 01/27/2009 02/02/2009 02/10/2009 02/11/2009 02/24/2009 02/27/2009 03/09/2009 03/09/2009 03/16/2009 03/17/2009
04/02/2009 04/02/2009
04/03/2009 04/08/2009

1/12/09 to correct scrivener's error on page 74 (SMS). (Entered: 01/09/2009)
435 NOTICE of Appearance by Caryl Kilinski on behalf of Walter A. McNeil, Randall Bryant (Kilinski, Caryl) (Entered: 01/14/2009)
436 MOTION to amend/correct 434 Findings of fact &conclusions of law by Walter A. McNeil, Randall Bryant. (Kilinski, Caryl) (Entered: 01/26/2009)
437 AMENDED NOTICE of Appearance of Denis Dean filed by Caryl Kilinski on behalf of Walter A. McNeil, Randall Bryant re 435 NOTICE of Appearance by Caryl Kilinski (Kilinski, Caryl) Modified on 1/28/2009 to link correctly (PAM). (Entered: 01/27/2009)
438 RESPONSE in opposition re 436 MOTION to amend/correct 434 Findings of fact &conclusions of law filed by Jeremiah Thomas, Michael McKinney. (Fresco, Leon) (Entered: 02/02/2009)
439 RESPONSE re 434 Findings of fact &conclusions of law filed by Walter A. McNeil. (Dean, Denis) (Entered: 02/10/2009)
440 ORDER denying 436 motion to amend findings of fact and conclusions of law. Signed by Judge Timothy J. Corrigan on 2/11/2009.(SRW) (Entered: 02/11/2009)
441 RESPONSE re 434 Findings of fact &conclusions of law Providing Plaintiffs' Proposed Declaratory and Injunctive Relief filed by Jeremiah Thomas, Michael McKinney. (Fresco, Leon) (Entered: 02/24/2009)
442 ORDER re: letter submitted pro se. Signed by Judge Timothy J. Corrigan on 2/27/2009. (Attachment: # 1 letter)(SRW) (Entered: 02/27/2009)
443 FINAL JUDGMENT AND FINAL INJUNCTION in favor of plaintiffs Jeremiah Thomas and Michael McKinney and against defendants Walter McNeil and Randall Bryant. Signed by Judge Timothy J. Corrigan on 3/9/2009. (SRW) (Entered: 03/09/2009)
444 FINAL JUDGMENT in favor of defendants Walter McNeil and Randall Bryant and against plaintiffs Antonio Ward, Paul Echols, Reginald Williams and Kelvin Frazier. Signed by Judge Timothy J. Corrigan on 3/9/2009. (SRW) (Entered: 03/09/2009)
445 Consent MOTION to extend time to File Motion for Attorneys' Fees, Litigation Expenses and Costs and Incorporated Memo of Law by Jeremiah Thomas, Michael McKinney. (Schulz, George) Motions referred to Magistrate Judge James R. Klindt. (Entered: 03/16/2009)
446 ENDORSED ORDER granting 445 Motion to extend time: plaintiffs' attorneys' fee, expense and cost motion due by 6/22/09; defendants' response due by 8/24/09; motion to then be held in abeyance until 10/26/09 by which deadline the parties will have advised the Court as to whether they have settled any or all of the matters raised by the motion. Signed by Judge Timothy J. Corrigan on 3/17/2009.(SRW) (Entered: 03/17/2009)
447 NOTICE OF APPEAL as to 443 Order by Randall Bryant and Walter A. McNeil. Filing fee not paid. (SEG) Modified on 4/3/2009 (JLM). (Entered: 04/02/2009)
TRANSMITTAL of initial appeal package to USCA consisting of certified copies of notice of appeal, docket sheet, order/judgment being appealed, and motion, if applicable to USCA re 447 Notice of appeal. Eleventh Circuit Transcript Information Form available to counsel at www.flmd.uscourts.gov under Forms and Publications/General. (SEG) (Entered: 04/02/2009)
448 ORDER vacating deadlines set by 446 Order for filing fee petition materials; if appropriate, parties to file proposed schedule 30 days following outcome on appeal. Signed by Judge Timothy J. Corrigan on 4/3/2009. (SRW) (Entered: 04/03/2009)
USCA appeal fees received $ 455 receipt number J032024 re 447 Notice of appeal filed by Randall Bryant, Walter A. McNeil. USCA notified. (SEG) (Entered: 04/08/2009)

Case: 3:04-cv-917 As of: 09/26/2014 05:10 PM EDT 57 of 60

04/09/2009 04/15/2009 04/20/2009 05/05/2009
05/05/2009
05/05/2009
05/06/2009 11/24/2009 11/24/2009 12/01/2009 05/17/2010 05/19/2010 05/28/2010

449 TRANSCRIPT information form filed by Walter A. McNeil, Randall Bryant re 447 Notice of appeal. (SEG) (Entered: 04/09/2009)
450 TRANSCRIPT information form filed by Jeremiah Thomas, Michael McKinney for proceedings held on 05/01/07 and 08/25/08 before Judge Timothy J. Corrigan re 447 Notice of appeal. USCA number: 09−11658−A. (Schulz, George) Modified on 4/16/2009 (SEG). (Entered: 04/15/2009)
451 COURT REPORTER ACKNOWLEDGMENT by Shannon Bishop re 447 Notice of appeal Estimated transcript filing date: 5/16/09. USCA number: 09−11658−A. (SEG) (Entered: 04/21/2009)
452 TRANSCRIPT of Status and Motion Hearing held on May 1, 2007 before Judge Timothy J. Corrigan. Court Reporter/Transcriber Shannon M. Bishop, RMR, CRR; dsmabishop@yahoo.com,Telephone number (904)549−1307. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER or purchased through the Court Reporter. Redaction Request due 5/26/2009, Redacted Transcript Deadline set for 6/5/2009, Release of Transcript Restriction set for 8/3/2009. (SB) (Entered: 05/05/2009)
453 TRANSCRIPT of Final Pretrial Conference held on August 25, 2008 before Judge Timothy J. Corrigan. Court Reporter/Transcriber Shannon M. Bishop, RMR, CRR; dsmabishop@yahoo.com,Telephone number (904)549−1307. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER or purchased through the Court Reporter. Redaction Request due 5/26/2009, Redacted Transcript Deadline set for 6/5/2009, Release of Transcript Restriction set for 8/3/2009. (SB) (Entered: 05/05/2009)
454 NOTICE to counsel of filing of OFFICIAL TRANSCRIPTS (Status and Motion Hearing on May 1, 2007 and Final Pretrial Conference on August 25, 2008). The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days. Any party needing a copy of the transcript to review for redaction purposes may purchase a copy from the court reporter or view the document at the clerk's office public terminal. Court Reporter: Shannon Bishop, RMR, CRR; dsmabishop@yahoo.com; (904)549−1307 (SB) (Entered: 05/05/2009)
455 NOTIFICATION that transcripts have been filed by Shannon Bishop re: 447 Notice of appeal. USCA number: 09−11658−A (SEG) (Entered: 05/06/2009)
456 CERTIFICATE of readiness sent to USCA re: 447 Notice of appeal. ROA consists of: volume of pleadings: 21 volume of transcripts: 10 volume of exhibits: 5 (consist of 4 boxes and 1 folder). USCA number: 09−11658−AA (SJW) (Entered: 11/24/2009)
RECORD on appeal sent to USCA re 447 Notice of appeal. Transmittal includes certified copy of docket sheet, volume of pleadings: 21, volume of transcripts: 10, volume of exhibits: 5. USCA number 09−11658−AA (SJW) (Entered: 11/24/2009)
ACKNOWLEDGMENT by USCA of receiving Record on appeal on 11/30/09 re 447 Notice of appeal. USCA number: 09−11658−AA. (SJW) (Entered: 12/02/2009)
457 SUGGESTION of Death of Plaintiff Thomas byRandall Bryant, Walter A. McNeil. (Maher, Susan) (Entered: 05/17/2010)
458 MOTION to substitute party by Maxime Jerome Thomas. (Myrthil, Marlysha) (Entered: 05/19/2010)
459 RESPONSE in opposition re 458 MOTION to substitute party filed by Randall Bryant, Walter A. McNeil. (Maher, Susan) Modified on 6/1/2010 (PAM). [Counsel directed to use entire case number on future pleadings] (Entered: 05/28/2010)

Case: 3:04-cv-917 As of: 09/26/2014 05:10 PM EDT 58 of 60

06/04/2010
06/08/2010 06/08/2010 06/17/2010 06/18/2010 06/26/2010 08/26/2010 11/02/2010 11/24/2010
12/07/2010 12/07/2010 12/13/2010 12/20/2010 12/20/2010
12/29/2010 01/26/2011
02/02/2011

460 Unopposed MOTION for leave to file Reply to Defendants' Response in Opposition to Maxime Jerome Thomas's Motion for Substitution as Plaintiff Jeremiah Thomas by Maxime Jerome Thomas. (Myrthil, Marlysha) (Entered: 06/04/2010)
461 ENDORSED ORDER granting 460 Maxime Jerome Thomas' Motion for leave to file reply brief. Signed by Judge Timothy J. Corrigan on 6/8/2010. (SRW) (Entered: 06/08/2010)
462 REPLY to response to motion re 458 MOTION to substitute party filed by Maxime Jerome Thomas. (Myrthil, Marlysha) (Entered: 06/08/2010)
463 Unopposed MOTION for miscellaneous relief, specifically To File Surreply to Plaintiff's Reply to Defendants' Response in Opposition to Motion for Substitution by Randall Bryant, Walter A. McNeil. (Maher, Susan) (Entered: 06/17/2010)
464 ENDORSED ORDER granting 463 Defendants' Unopposed Motion to File Surreply. Signed by Judge Timothy J. Corrigan on 6/18/2010.(SRW) (Entered: 06/18/2010)
465 RESPONSE re 462 Reply to response to motion for substitution filed by Randall Bryant, Walter A. McNeil. (Attachments: # 1 Exhibit A − Institutional Assignment Record − Thomas)(Maher, Susan) (Entered: 06/26/2010)
466 NOTICE by Maxime Jerome Thomas In Re Estate of Jeremiah Thomas Letters of Administration (Attachments: # 1 Exhibit)(Capobianco, Cassandra) (Entered: 08/26/2010)
467 NOTICE of Appearance by Jonathan P. Sanford on behalf of Randall Bryant, Walter A. McNeil (Sanford, Jonathan) (Entered: 11/02/2010)
468 JOINT SCHEDULING PROPOSAL by Randall Bryant, Michael McKinney, Walter A. McNeil, Maxime Jerome Thomas of Filing Joint Proposed Schedule (Capobianco, Cassandra) Modified on 11/24/2010 to edit text (PAM). (Entered: 11/24/2010)
469 ORDER re: pro se letter, directing Clerk to docket letter and send copy to counsel for action as appropriate. Signed by Judge Timothy J. Corrigan on 12/7/2010. (SRW) (Entered: 12/07/2010)
470 DOCKETED PURSUANT TO ORDER DOC. 469 by Michael McKinney re 469 Order (PAM) [Per Chambers] (Entered: 12/07/2010)
Mail addressed to William Peter Martin marked return to sender not deliverable as addressed unable to forward re: 469 Order, 470 Pro Se's Letter. (PAM) (Entered: 12/13/2010)
471 JOINT MOTION for temporary restraining order and for preliminary injunction by Michael McKinney. (DTS) (Entered: 12/20/2010)
472 ORDER terminating 471 Motion for temporary restraining order; directing counsel for plaintiffs to confer and file notice by 12/30/2010 regarding plaintiff McKinney's status. Signed by Judge Timothy J. Corrigan on 12/20/2010.(SRW) (Entered: 12/20/2010)
473 NOTICE In Response re 472 ORDER by Michael McKinney (Schulz, George) (Modified on 12/30/2010 to edit text) (DSY). (Entered: 12/29/2010)
474 ORDER of USCA (certified copy) GRANTING motion to transfer application for appellate attorney fees as to 447 Notice of appeal filed by Randall Bryant, Walter A. McNeil. EOD: 1/24/11; USCA number: 08−11658−AA. (SJW) (Entered: 01/28/2011)
475 USCA judgment (certified copy) AFFIRMED as to 447 Notice of appeal filed by Randall Bryant, Walter A. McNeil Entered on docket 8/20/10. Issued as Mandate on: 2/1/11 ROA returned and consists of: volume of pleadings: 21, volume of transcripts: 10, volume of exhibits: 4 boxes, USCA number: 09−11658. (SJW) (Entered: 02/03/2011)

Case: 3:04-cv-917 As of: 09/26/2014 05:10 PM EDT 59 of 60

02/22/2011 04/14/2011 04/18/2011 04/29/2011
04/30/2011 04/30/2011 04/30/2011 05/03/2011
05/24/2011 06/01/2011 06/30/2011 07/01/2011

476 ORDER granting 458 Motion to substitute party (Maxime Jerome Thomas added; Jeremiah Thomas terminated); plaintiffs' fee petition due 5/2/2011; response due 7/1/2011; parties to advise re: settlement conference by 6/1/2011. Signed by Judge Timothy J. Corrigan on 2/22/2011.(SRW) (PAM). Modified on 2/23/2011 additional attachments added: Edited to correct case number: Per Chambers] (PAM). (Entered: 02/22/2011)
477 UNOPPOSED MOTION for leave to file excess pages in Fee Petition by Michael McKinney, Maxime Jerome Thomas. (Capobianco, Cassandra) Modified on 4/14/2011 to edit text (PAM). (Entered: 04/14/2011)
478 ENDORSED ORDER granting 477 Motion for Leave to File Excess Pages: fee petition (due by 5/2/2011) may not exceed 35 pages. Signed by Judge Timothy J. Corrigan on 4/18/2011.(SRW) (Entered: 04/18/2011)
479 FIRST MOTION for attorney fees with Exhibits 1−7 (Exhibits 8 and 9 to follow) by Michael McKinney, Maxime Jerome Thomas. (Attachments: # 1 Exhibit Ex. 1 − Summary of Fees per Coded Task, # 2 Exhibit Ex. 2 − Declaration of Margaret Winter, # 3 Exhibit Ex. 3 − Declaration of John Boston, # 4 Exhibit Declaration of William Sheppard, # 5 Exhibit Ex. 5 − Declaration of Randall Berg, Jr., # 6 Exhibit Ex. 6 − Declaration of Christopher Jones, # 7 Exhibit Ex. 7 − Declaration of George E. Schulz, Jr.)(Capobianco, Cassandra) Modified on 5/2/2011 exhibits removed and redacted (PAM). (Entered: 04/29/2011)
480 NOTICE of Filing Exhibit 8 re 479 First MOTION for attorney fees by Michael McKinney, Maxime Jerome Thomas (Attachments: # 1 Exhibit 8−1 − Summary of Fees by Coded Task, # 2 Exhibit 8−2, # 3 Exhibit 8−3, # 4 Exhibit 8−4)(Capobianco, Cassandra) Modified on 5/2/2011 to edit text(PAM). (Entered: 04/30/2011)
481 NOTICE of Filing Exhibit 9 re 479 First MOTION for attorney fees by Michael McKinney, Maxime Jerome Thomas (Attachments: # 1 Exhibit 9−1 − Consolidated Time Sheets, # 2 Exhibit 9−2, # 3 Exhibit 9−3, # 4 Exhibit 9−4, # 5 Exhibit 9−5, # 6 Exhibit 9−6, # 7 Exhibit 9−7a, # 8 Exhibit 9−7b)(Capobianco, Cassandra) Modified on 5/2/2011 to edit text (PAM). (Entered: 04/30/2011)
482 NOTICE of Filing Continuance of Exhibit 9 (Parts 9−7c− 9−11) re 479 First MOTION for attorney fees with Exhibits 1−7 (Attachments: # 1 Exhibit 9−7(c), # 2 Exhibit 9−7(d), # 3 Exhibit 9−8, # 4 Exhibit 9−9, # 5 Exhibit 9−10, # 6 Exhibit 9−11)(Capobianco, Cassandra) Modified on 5/2/2011 to edit text (PAM). (Entered: 04/30/2011)
483 NOTICE by Michael McKinney, Maxime Jerome Thomas re 479 First MOTION for attorney fees with Exhibits 1−7 (Exhibits 8 and 9 to follow)First MOTION for attorney fees with Exhibits 1−7 (Exhibits 8 and 9 to follow)First MOTION for attorney fees with Exhibits 1−7 (Exhibits 8 and 9 to follow) of Filing Replacement Exhibits 1−7 (Attachments: # 1 Exhibit Ex. 1 − Summary of Fees by Coded Task, # 2 Exhibit Ex. 2 − Declaration of Margaret Winter, # 3 Exhibit Declaration of John Boston, # 4 Exhibit Ex. 4 − Declaration of William Sheppard, # 5 Exhibit Declaration of Randall Berg, Jr., # 6 Exhibit Declaration of Christopher Jones, # 7 Exhibit Declaration of George E. Schulz, Jr.)(Capobianco, Cassandra) (Entered: 05/03/2011)
484 NOTICE Regarding Settlement Conference re 476 Order by Michael McKinney, Maxime Jerome Thomas (Capobianco, Cassandra) Modified on 5/25/2011 to link (PAM). (Entered: 05/24/2011)
485 ORDER that the Honorable James R. Klindt, United States Magistrate Judge, will conduct a settlement conference; See Order for details. Signed by Judge Timothy J. Corrigan on 6/1/2011. (MGG) (Entered: 06/01/2011)
486 UNOPPOSED Motion to extend time to Respond to Petition for Attorney's Fees by Randall Bryant, Walter A. McNeil. (Maher, Susan) Motions referred to Magistrate Judge James R. Klindt. (Modified on 7/1/2011 to edit text) (DSY). (Entered: 06/30/2011)
487 ORDER granting 486 Defendants' Unopposed Motion for Extension of Time to Respond to Petition for Attorney's Fees; response due 8/1/2011; substituting

Case: 3:04-cv-917 As of: 09/26/2014 05:10 PM EDT 60 of 60

07/12/2011 07/14/2011 08/01/2011 08/01/2011
08/03/2011
08/10/2011 08/11/2011 09/27/2011 12/07/2011 12/07/2011 12/12/2011 12/21/2011 12/22/2011 05/31/2013 06/04/2013

defendants (with directions to Clerk); setting status hearing (related to settlement conference) on 7/12/2011 at 10:00 AM in Courtroom 5D before Magistrate Judge James R. Klindt; permitting telephonic appearances. See Order for details and instructions. Signed by Magistrate Judge James R. Klindt on 7/1/2011. (KAW) (Entered: 07/01/2011)
488 Minute Entry. Proceedings held before Magistrate Judge James R. Klindt: Status Hearing (related to settlement conference) held on 7/12/2011. (DIGITAL) (DNL) (Entered: 07/12/2011)
489 ORDER setting settlement conference for 8/10/2011 at 10:00 AM in Jacksonville Courtroom 5 D before Magistrate Judge James R. Klindt. Signed by Magistrate Judge James R. Klindt on 7/14/2011. (KAW) (Entered: 07/14/2011)
490 UNOPPOSED Motion for leave to file excess pages re 479 FIRST Motion for attorney fees by Edwin G. Buss, Steven Singer. (Maher, Susan) (Modified on 8/2/2011 to edit text) (DSY). (Entered: 08/01/2011)
491 MEMORANDUM in opposition re 479 Motion for attorney fees filed by Edwin G. Buss, Steven Singer. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Errata 15, # 16 Exhibit 16, # 17 Exhibit 18, # 18 Exhibit 19, # 19 Exhibit 20, # 20 Exhibit 21, # 21 Errata 22, # 22 Errata 23, # 23 Exhibit 24)(Vail, Jason) (Entered: 08/01/2011)
492 ORDER granting 490 Defendants' Unopposed Motion to Accept Response to Petition for Attorneys' Fees in Excess of 20 Pages; the Court accepts as filed 491 Defendants' Response in Opposition to Plaintiffs' Motion for Attorneys' Fees. Signed by Magistrate Judge James R. Klindt on 8/3/2011. (WLG) (Entered: 08/03/2011)
493 Minute Entry. Proceedings held before Magistrate Judge James R. Klindt: Settlement Conference held on 8/10/2011. (DIGITAL) (DNL). Modified on 8/12/2011 to correct the hearing date on the Minutes (DNL). (Entered: 08/11/2011)
494 NOTICE of Hearing: Settlement Conference (Continued) set on 9/27/2011 at 10:00 AM in Jacksonville Courtroom 5 D before Magistrate Judge James R. Klindt. (DNL) (Entered: 08/11/2011)
495 Minute Entry. Proceedings held before Magistrate Judge James R. Klindt: Settlement Conference held on 9/27/2011. (Digital) (SHS) (Entered: 09/27/2011)
496 ORDER: the parties are to advise the Court as to whether they have executed the terms of their settlement as set forth in the Order, no later than 1/5/2012. Signed by Judge Timothy J. Corrigan on 12/7/2011. (MGG) (Entered: 12/07/2011)
497 NOTICE of Status of Settlement by Michael McKinney, Maxime Jerome Thomas (Capobianco, Cassandra) (Counsel Notified Regarding Correct Case Number) (Modified on 12/8/2011 to edit text) (DSY). (Entered: 12/07/2011)
498 ORDER that pursuant to the parties' Notice 497 , the motion for attorney fees 479 is terminated. Signed by Judge Timothy J. Corrigan on 12/12/2011. (SRW) (Entered: 12/12/2011)
499 UNOPPOSED MOTION for miscellaneous relief, specifically to Retrieve Exhibits by Michael McKinney, Maxime Jerome Thomas. (Capobianco, Cassandra) Modified to edit text on 12/21/2011 (MDC). (Entered: 12/21/2011)
500 ENDORSED ORDER granting 499 Motion to retrieve trial exhibits; counsel for plaintiffs may collect the trial exhibits from the Clerk's intake counter. Signed by Judge Timothy J. Corrigan on 12/22/2011.(SRW) (Entered: 12/22/2011)
501 RECEIPT for the return of exhibits and/or exhibit substitutes submitted by Plaintiff. (ASL) (Entered: 05/31/2013)
502 NOTICE to counsel regarding return of trial exhibits. (LRB) (Entered: 06/04/2013)

 
 United States Court of Appeals, Eleventh Circuit.
Sylvester BUTLER, Kelvin Frazier, Curt Massie, Jeremiah Thomas, Eugene E. Ulrath, et. al., Plaintiffs-Appellees, v.
James McDONOUGH, in his official capacity, et. al., Defendants,
James Wilson, in his individual capacity, DefendantAppellant.
No. 06-13662 Non-Argument Calendar.
Nov. 30, 2006.
Frank Damon Kitchen, J. Ray Poole, Jr., Constangy, Brooks & Smith, LLC, Jacksonville, FL, for Defendant-Appellant.
Cassandra Jae Capobianco, Christopher Michael Jones, Kristen Cooley Lentz, Florida Institutional Legal Services, Gainesville, FL, George E. Schulz, Jr., Holland & Knight, J. Dixon Bridgers, III, Vernis & Bowling of North Florida, PA, Jacksonville, FL, Peter M. Siegel, Randall C. Berg, Jr., Miami, FL, for Plaintiffs-Appellees.
Appeal from the United States District Court for the Middle District of Florida. D.C. Docket No. 0400917-CV-J-32-MMH.
Before ANDERSON, BIRCH and FAY, Circuit Judges.
PER CURIAM:
**1 This action is brought by a group of current and former inmates of the Florida Department of Corrections against multiple*742 current and former correctional officers. This appeal involves only one of many rulings by the district court; to wit: the denial of the motion to dismiss filed by defendant/appellant James Wilson as to the allegations made against him by plaintiff/appellee Jeremiah Thomas. The basis of the motion to dismiss is qualified immunity. We agree with the district court that the allegations of the Second Amended Complaint are sufficient to withstand this motion.FN1
FN1. Of course, this ruling does not prevent

the district court from revisiting the issue of qualified immunity after a full development of the evidence should the appellant present a motion for summary judgment.
AFFIRMED.
C.A.11 (Fla.),2006. Butler v. McDonough 208 Fed.Appx. 741, 2006 WL 3450148 (C.A.11 (Fla.))
END OF DOCUMENT