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UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA ORLANDO DIVISION

CASE NO. 6:05-cv-850-Orl-31KRS

RONALD M. PARILLA, ALDA RUGG,

)

BILLY CATES, THERESA DECLUE,

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AILEEN NUNEZ, DAVID W. ROBERTS, KIM )

LEMISTER, SHANE BRADLEY, and

)

FRANTARSHIA STAFFORD, individually and )

on behalf of a Class of all others similarly situated, )

)

Plaintiffs,

)

)

v.

)

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DONALD ESLINGER, individually and

)

in his official capacity as Sheriff of Seminole

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County, MICHAEL TIDWELL, individually and )

in his official capacity as Director of the John E. )

Polk Correctional Facility, DAVID DIGGS, in his )

individual capacity, and SEMINOLE COUNTY, )

)

)

Defendants.

)

)

SECOND AMENDED CLASS ACTION COMPLAINT and
JURY TRIAL DEMAND Plaintiffs, individually, and as representatives of a class of persons similarly situated, sue Defendants and allege:
INTRODUCTION 1. All non-felony arrestees who are booked into the John E. Polk Correctional Facility (hereinafter referred to as “the Seminole County Jail” or “the Jail”) are routinely subjected to dehumanizing invasive strip and visual body cavity searches prior to First Appearance, despite the fact that such blanket strip searches violate state and federal law, and despite the absence of prior

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written authorization of a supervising officer on duty in violation of Fla. Stat. § 901.211(5). All arrestees who are ordered to be immediately released by a judge or who have produced the required bond are held an unreasonably long period of time prior to release.
2. Unless enjoined and restricted, upon information and belief, Defendants will maintain their practice, policy, and custom of illegally subjecting all pre-First Appearance, non-felony, arrestees charged with non-violent, non-drug and non-weapons related offenses to illegal strip and/or visual body cavity searches; and will continue to strip search arrestees without prior written authorization from a supervising officer on duty in violation of Fla. Stat. § 901.211(5). Unless enjoined and restricted, upon information and belief, Defendants will maintain their practice, policy, and custom of detaining persons ordered by a judge to be immediately released, or who have paid the required bond, an unreasonably long period of time prior to release
JURISDICTION 3. This action is brought pursuant to 42 U.S.C. § 1983 and § 1988, and the Fourth and Fourteenth Amendments to the United States Constitution. Jurisdiction is founded upon 28 U.S.C. § 1331 and § 1343(a)(3) and (4) and the aforementioned statutory and constitutional provisions.
PARTIES 4. Plaintiffs, Parilla, Rugg, Cates, DeClue, Nunez, Roberts, Lemister, Bradley, Stafford, and all those similarly situated, at all material times hereto, were arrested and subjected as a matter of policy, practice and custom, to a strip or visual body cavity search at the Jail. 5. Plaintiff Ronald Parilla was, at all times material hereto, a resident of Oviedo, Florida. 6. Plaintiff Alda Rugg is, and at all times material hereto was, a resident of Oviedo, Florida. 7. Plaintiff Billy Cates is, and at all times material hereto was, a resident of Altamonte
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Springs, Florida. 8. Plaintiff Theresa Declue is, and at all times material hereto was, a resident of Heathrow,
Florida. 9. Plaintiff Aileen Nunez is, and at all times material hereto was, a resident of Orlando,
Florida. 10. Plaintiff David Roberts is, and at all times material hereto was, a resident of Osteen,
Florida. 11. Plaintiff Kim Lemister is now a resident of Sanford, Florida, and was at all times
material hereto a resident of Lake Mary, Florida. 12. Plaintiff Shane Bradley is, and at all time material hereto was, a resident of Orange City,
Florida. 13. Plaintiff Frantarsha Stafford is, and at all times material hereto, was a resident of
Orlando, Florida. 14. Defendant Seminole County is, and at all times material referred to herein, was a
political subdivision of the State of Florida. 15. Pursuant to state law, Defendant Seminole County has delegated the management and
operations of the Jail where the wrongs complained of herein occurred to the Defendant Sheriff of Seminole County.
16. Defendant Seminole County remains responsible for and is liable for the acts of its agent and the policy maker for the County, the Defendant Sheriff of Seminole County, including the payment of damages and attorneys’ fees for any of the constitutional violations complained of herein.
17. Defendant, Donald F. Eslinger, is, and at all times material to this action was, the Sheriff
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of Seminole County. As Sheriff, he is responsible for the operation of the Jail and is responsible for the care, custody and control of those individuals committed to the Jail, and for making, implementing, allowing, authorizing, or acquiescing in the policies, practices, and customs challenged herein. He is sued in his individual and official capacities.
18. Defendant Michael Tidwell is, and at all times material to this action was, the individual in charge of the day to day operations of the Jail commencing on approximately January 18, 2005. As such, he is responsible for the policies, practices and customs herein challenged. He is sued in his official and individual capacities.
19. Defendant David Diggs was the individual in charge of the day to day operations of the Jail at all times material to this action and until approximately December 31, 2004. As such, he was responsible for the policies, practices and customs herein challenged until approximately December 31, 2004. He is sued in his individual capacity.
20. At all material times mentioned herein, each of the Defendants was acting under the color of state law and the conduct of each constitutes state action.
FACTS A. RONALD M. PARILLA 21. On December 3, 2004, Plaintiff Parilla went to the Seminole County Courthouse in Sanford, Florida for a non-moving traffic citation for an improperly registered company car. After passing through the metal detector he asked Seminole County Deputy Sheriff Carraday for directions to “courtroom F” as noted on his ticket. Carraday told Plaintiff Parilla that there was no “courtroom F” and directed him to “courtroom 1B,” pointing towards the courtroom as they spoke. In the courtroom, a court employee told Plaintiff Parilla to sit down until his name was called.
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22. Approximately two hours later, the judge in “courtroom 1B” suggested that there were too many people in his courtroom and called the names of people still on his docket. The people not named, which included Plaintiff Parilla, were told by the judge to go to “courtroom 1A” next door. Shortly after Plaintiff Parilla arrived at “courtroom 1A,” the room began filling with Deputy Sheriffs. Then, one of the Deputies announced to the crowd that the judge in “courtroom 1A,” Judge John R. Sloop, had signed warrants for their arrests for failure to appear.
23. Plaintiff Parilla and the others were taken into custody, handcuffed, and moved to another location in the courthouse where leg-irons and waist chains were applied.
24. At the courthouse, Plaintiff’s belt, shoelaces and personal belongings were taken. He was then subjected to a pat down search and placed in a van and transported to the jail.
25. At the Jail, Plaintiff Parilla was subjected to a strip or visual body cavity search. He was required to remove all his clothing, lift his private parts and spread his rectum.
26. The correctional officer who performed the search did not have the prior written authorization of a supervising officer on duty. The search was performed without their being, recorded in writing or otherwise, a particularized reasonable suspicion that the search would be productive of contraband or weapons.
27. At the conclusion of the search, Plaintiff Parilla was allowed to dress in his civilian clothing.
28. An Order signed by a judge that Plaintiff Parilla be immediately released from custody was filed by the clerk of the Eighteenth Judicial Circuit Court of Florida at 2:22 p.m. and faxed to the Jail at 3:48 p.m. on December 3, 2004. Plaintiff Parilla was not released from Jail custody until approximately 8:40 p.m.
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29. Prior to December 3, 2004, Plaintiff Parilla had never been incarcerated. 30. Plaintiff Parilla is a 56 year old married Mercedes-Benz salesman. As a result of having to wait nearly 5 hours to be released after the receipt of the court order that he be immediately released, Plaintiff Parilla missed possible work opportunities and other normal daily activities. He was humiliated and embarrassed by being subjected to the aforementioned strip and visual body cavity search and by being required to stand naked for any passerby to observe. He suffered mental and emotional distress as a direct and proximate result of Defendants’ actions in depriving him of rights secured to him by the Fourth and Fourteenth Amendments to the United States Constitution. B. ALDA RUGG 31. On December 3, 2004, Plaintiff Rugg appeared at the Seminole County Courthouse in response to a ticket for failure to display a tag in the vehicle she was driving. She was sent to “courtroom 1B” and later sent to “courtroom 1A” where she was arrested in the courtroom for "failure to appear" in court. 32. After her arrest, Plaintiff Rugg was placed in handcuffs, bellychains and leg irons and transported to the Jail. Immediately after arrival at the jail, Plaintiff Rugg, and the other women arrested in the courtroom, were taken to a hallway were they were made to open their mouth and lift their tongues. Then Plaintiff Rugg was taken to a room where an officer told her to remove all her clothing. She was made to squat and cough, lift her breasts and run her fingers through her hair. 33. The strip and/or visual body cavity search made Plaintiff Rugg feel extremely uncomfortable and dehumanized. 34. The correctional officer who performed the search did not have the prior written authorization of a supervising officer on duty. The search was performed without their being,
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recorded in writing or otherwise, a particularized reasonable suspicion that the search would be productive of contraband or weapons.
35. Despite an immediate release Order signed by a judge and entered by the clerk at 2:30 p.m. and faxed to the Jail around 3:46 p.m. on December 3, 2004, Plaintiff Rugg was kept in jail custody inside a holding cell until about 9:00 p.m.
36. Prior to December 3, 2004, Plaintiff Rugg had never been arrested or incarcerated. 37. Plaintiff Rugg is a housewife with two children, one of whom is disabled. By being held over 5 hours after being ordered by a judge to be immediately released, Plaintiff Rugg was unable to meet her disabled son at his bus stop and to otherwise care for him, and was otherwise unable to engage in her normal everyday activities. She was humiliated, embarrassed and suffered mental and emotional distress as a result of being subjected to a strip and/or visual body cavity search and as a result of being unreasonably detained in custody for nearly an entire day for failure to display car tags. She was also humiliated and embarrassed by being required to stand naked for any passerby to observe. The mental and emotional distress she suffered were a direct and proximate result of Defendants’ actions in depriving her of rights secured to her by the Fourth and Fourteenth Amendments to the United States Constitution. C. BILLY CATES 38. On December 2, 2004, Plaintiff Cates was five minutes late to court, having originally gone to the old courthouse. When he arrived at the new Seminole County Courthouse in Sanford he was arrested for appearing late. Bond was set. 39. Plaintiff Cates was taken into custody, handcuffed, and moved to another location in the courthouse where leg-irons, belly-chains, and leg irons were applied.
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40. At the courthouse, Plaintiff Cates’ belt, shoelaces and personal belongings were taken. He was then subjected to a pat down search and placed in a van and transported to the Jail.
41. At the Jail, Plaintiff Cates was subjected to a strip and/or visual body cavity search by a correctional officer at approximately noon on December 2, 2004. He was required to remove all his clothing, lift his private parts and spread his rectum for inspection.
42. The correctional officer who performed the search did not have the prior written authorization of a supervising officer on duty. The search was performed without their being, recorded in writing or otherwise, a particularized reasonable suspicion that the search would be productive of contraband or weapons.
43. Plaintiff Cates’ mother and brother came to the Jail and paid Plaintiff Cates’ bond at 9:00 p.m. on December 3, 2004. However, Plaintiff Cates was not released until 14 hours later at 11:00 a.m. on December 4, 2004.
44. Plaintiff Cates is a 25 year, self-employed floor installer. He was humiliated and embarrassed by being subjected to the aforementioned strip and/or visual body cavity search and by being required to stand naked for any passerby to observe. By being unreasonably held without justification over 14 hours after his family posted his bond, Plaintiff Cates was unable to engage in work and otherwise engage in his normal everyday activities. He suffered mental and emotional distress as a direct and proximate result of Defendants’ actions in depriving him of rights secured to him by the Fourth and Fourteenth Amendments to the United States Constitution.
D. THERESA DeCLUE 45. On December 3, 2004, Plaintiff DeClue went to the Seminole County Courthouse in Sanford, Florida for an infraction charging her with driving with a suspended license. Her traffic
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ticket instructed that she report to “courtroom 1B.” In the courtroom, a court employee told Plaintiff DeClue to sit down until her name was called.
46. Approximately two hours later, the judge in “courtroom 1B” suggested that there were too many people in his courtroom and called the names of people still on his docket. The eleven people not named, which included Plaintiff DeClue, were told by the judge to go to “courtroom 1A” next door. Shortly after Plaintiff Declue arrived at “courtroom 1A,” the room began filling with Deputy Sheriffs. Then, one of the Deputies announced to the crowd that the judge in “courtroom 1A,” Judge John R. Sloop, had signed warrants for their arrests for failure to appear.
47. Plaintiff DeClue and the others were taken into custody, handcuffed, and moved to another location in the courthouse where leg-irons and waist chains were applied.
48. At the courthouse, Plaintiff DeClue’s personal belongings were taken. She was then subjected to a pat down search and placed in a van and transported to the Jail.
49. At the Jail, Plaintiff DeClue was subjected to a strip and/or visual body cavity search. She was required to remove all her clothing, squat and spread her rectum.
50. The correctional officer who performed the search did not have the prior written authorization of a supervising officer on duty. The search was performed without their being, recorded in writing or otherwise, a particularized reasonable suspicion that the search would be productive of contraband or weapons.
51. At the conclusion of the search, Plaintiff DeClue was required to dress in a Jail uniform. 52. An Order signed by a judge to “immediately release” Plaintiff DeClue from custody was filed by the clerk of the Eighteenth Judicial Circuit Court of Florida at 2:22 p.m. and faxed to the Jail at 3:48 p.m. on December 3, 2004. Despite the Order, Plaintiff DeClue was not released from the
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Jail until approximately 9:00 p.m. 53. Prior to December 3, 2004, Plaintiff DeClue had never been in a Jail. 54. Plaintiff DeClue is a 29 year old Administrative Assistant for a major employer in the
Orlando area. She was humiliated and embarrassed by being subjected to the aforementioned strip and visual body cavity search and by being required to stand naked for any passerby to observe. By being unreasonably held without justification over 5 hours after being ordered to be immediately released, Plaintiff DeClue was unable to engage in work and otherwise engage in her normal everyday activities. She suffered mental and emotional distress as a direct and proximate result of Defendants’ actions in depriving her of rights secured to her by the Fourth and Fourteenth Amendments to the United States Constitution.
E. AILEEN NUNEZ 55. On December 3, 2004, Plaintiff Nunez went to the Seminole County Courthouse in Sanford, Florida for a non-moving traffic violation. She was told to report to “courtroom 1B.” In the courtroom, a court employee told Plaintiff Nunez to sit down until her name was called. 56. Approximately two hours later, the judge in “courtroom 1B” suggested that there were too many people in his courtroom and called the names of people still on his docket. The eleven people not named, which included Plaintiff Nunez, were told by the judge to go to “courtroom 1A” next door. Shortly after Plaintiff Nunez arrived at “courtroom 1A,” the room began filling with Deputy Sheriffs. Then, one of the Deputies announced to the crowd that the judge in “courtroom 1A,” Judge John R. Sloop, had signed warrants for their arrests for failure to appear. 57. At the Courthouse, Plaintiff Nunez was placed in restraints and then taken to the Jail. 58. Upon arrival at the Jail, Plaintiff Nunez was subjected to a strip or visual body cavity
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search. She was forced to squat and cough, and the officers ran their fingers through her hair. A correctional officer removed her bra because it had an under wire. At 2:22 p.m., an order that Plaintiff Nunez be “immediately released from custody ROR [release on own recognizance]” was filed in the Clerk’s Office, and faxed to Defendants at 3:48 p.m. However, Plaintiff Nunez was not released until approximately 9:00 p.m.
59. A correctional officer performed the strip search prior to obtaining the written authorization of a supervising officer on duty. The search was performed without their being, recorded in writing or otherwise, a particularized reasonable suspicion that the search would be productive of contraband or weapons.
60. Plaintiff Nunez is a 25 year old bank employee. She was humiliated and embarrassed by being subjected to the aforementioned strip and/or visual body cavity search and by being required to stand naked for any passerby to observe. By being unreasonably held without justification over 5 hours after being ordered “immediately released,” Plaintiff Nunez was unable to engage in work and otherwise engage in his normal everyday activities. She suffered mental and emotional distress as a direct and proximate result of Defendants’ actions in depriving her of rights secured to her by the Fourth and Fourteenth Amendments to the United States Constitution.
F. DAVID W. ROBERTS 61. On December 3, 2004, Plaintiff Roberts went to the Seminole County Courthouse in Sanford, Florida, for a non-moving traffic violation. He went to “courtroom 1B,” where a court employee told Plaintiff Roberts to sit down until his name was called. He had gone to the Courthouse to simply pay his fine of $50 for being one life jacket short in his boat. 62. Approximately two hours later, the judge in “courtroom 1B” suggested that there were
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too many people in his courtroom and called the names of people still on his docket. The people not named , which included Plaintiff Roberts, were told by the judge to go to “courtroom 1A” next door. Shortly after Plaintiff Roberts arrived at “courtroom 1A,” the room began filling with Deputy Sheriffs. Then, one of the Deputies announced to the crowd that the judge in “courtroom 1A,” Judge John R. Sloop, had signed warrants for their arrests for failure to appear.
63. Plaintiff Roberts and the others were taken into custody, handcuffed, and moved to another location in the courthouse where leg-irons and waist chains were applied.
64. At the courthouse, Plaintiff’s belt, shoelaces and personal belongings were taken. He was then subjected to a pat down search and placed in a van and transported to the jail.
65. At the jail, Plaintiff Roberts was subjected to a strip or visual body cavity search. The correctional officer who performed the search did not have the prior written authorization of the supervisor on duty. The search was performed without there being, recorded in writing or otherwise, a particularized reasonable suspicion that the search would be productive of contraband or weapons.
66. At 2:22 p.m., an order that Plaintiff Roberts be “immediately released from custody ROR [release on own recognizance]” was filed in the Clerk’s Office, and faxed to the Jail at 3:45 p.m. However, Plaintiff Roberts was not released until approximately 9:00 p.m.
67. Plaintiff Roberts is a 39 year old employee of a local construction firm. He was humiliated and embarrassed by being subjected to the aforementioned strip and visual body cavity search and by being required to stand naked for any passerby to observe. By being unreasonably held without justification over 5 hours after being ordered “immediately released,” Plaintiff Roberts was unable to engage in work and otherwise engage in his normal everyday activities. He suffered mental and emotional distress as a direct and proximate result of Defendants’ actions in depriving
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him of rights secured to him by the Fourth and Fourteenth Amendments to the United States Constitution.
G. KIM LEMISTER 68. On September 13, 2002, Plaintiff Lemister was arrested at 1:00 a.m. for driving while intoxicated. She was on one crutch as a result of a knee injury. She was taken to the Jail to be booked. She was told by the female correctional officer on duty to go into the bathroom, take off her clothes and take a shower. When Plaintiff Lemister finished showering, she was told to go back into the shower and thoroughly wash her hair. After the shower, she was told to spread her legs and was given a visual body cavity search. The correctional officer took her bra because it contained an underwire. Her head was then sprayed for lice as were all other body areas containing hair. She was not given a towel to dry. She was told to dress in a jail uniform and taken to a single cell in the infirmary area because she possessed a crutch. 69. On information and belief, the female correctional officer who performed the search did not have the prior written authorization of a supervising officer on duty. The search was performed without there being, recorded in writing or otherwise, a particularized reasonable suspicion that the search would be productive of contraband or weapons. 70. Plaintiff Lemister’s boyfriend came to the Jail and paid her bond at 2:00 a.m. She was released the next morning at approximately some time between 10:30 to 11:00 a.m. 71. Plaintiff is a 32 year old employee of a bank. She was humiliated and embarrassed by being subjected to the aforementioned strip and/or visual body cavity search. She has suffered mental and emotional distress as a direct and proximate result of Defendants’ actions in depriving her of rights secured to her by the Fourth and Fourteenth Amendments to the United States
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Constitution. H. SHANE BRADLEY 72. On December 3, 2004, Plaintiff Bradley went to the Seminole County Courthouse in
Sanford, Florida, for several traffic violations. He went to “courtroom 1B,” where a court employee told Plaintiff Bradley to sit down until his name was called. He had gone to the Courthouse to simply pay his fine.
73. Approximately two hours later, the judge in “courtroom 1B” suggested that there were too many people in his courtroom and called the names of people still on his docket. The people not named , which included Plaintiff Bradley, were told by the judge to go to “courtroom 1A” next door. Shortly after Plaintiff Bradley arrived at “courtroom 1A,” the room began filling with Deputy Sheriffs. Then, one of the Deputies announced to the crowd that the judge in “courtroom 1A,” Judge John R. Sloop, had signed warrants for their arrests for failure to appear.
74. Plaintiff Bradley and the others were taken into custody, handcuffed, and moved to another location in the courthouse where leg-irons and waist chains were applied.
75. At the courthouse, Plaintiff’s belt, shoelaces and personal belongings were taken. He was then subjected to a pat down search and placed in a van and transported to the jail.
76. At the jail, Plaintiff Bradley was subjected to a strip or visual body cavity search. The correctional officer who performed the search did not have the prior written authorization of the supervisor on duty. The search was performed without there being, recorded in writing or otherwise, a particularized reasonable suspicion that the search would be productive of contraband or weapons.
77. At 2:22 p.m., an order that Plaintiff Bradley be “immediately released from custody ROR [release on own recognizance]” was filed in the Clerk’s Office, and faxed to the Jail at 3:49 p.m.
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However, Plaintiff Bradley was not released until approximately 8:55 p.m. 78. Plaintiff Bradley is a 26 year old employee of a local landscaping company. He was
humiliated and embarrassed by being subjected to the aforementioned strip and visual body cavity search and by being required to stand naked for any passerby to observe. By being unreasonably held without justification over 5 hours after being ordered “immediately released,” Plaintiff Bradley was unable to engage in work and otherwise engage in his normal everyday activities. He suffered mental and emotional distress as a direct and proximate result of Defendants’ actions in depriving him of rights secured to him by the Fourth and Fourteenth Amendments to the United States Constitution.
I. FRANTARSHIA STAFFORD 79. On December 3, 2004, Plaintiff Stafford appeared at the Seminole County Courthouse in response to traffic tickets for no insurance and no registration. She was initially directed to the wrong courtroom and then arrested for “failure to appear” after being directed to “courtroom 1B” at the Seminole County Courthouse. At the Courthouse, she was handcuffed, forced to take off her shoes and put on jailhouse slippers, and put in belly chains. 80. Upon arrival at the Jail, Plaintiff Stafford was subjected to a strip or visual body cavity search by a correctional officer. She was forced to squat, bend over, and cough and officers ran their fingers through her hair. The correctional officer took her bra because it had an underwire. At 2:22 p.m., an order that Plaintiff Stafford (formerly Coleman) be “immediately released from custody ROR [release on own recognizance]” was filed in the Clerk’s Office, and faxed to Defendants at 3:50 p.m. However, Plaintiff Stafford was not released until approximately 9:00 p.m. 81. The correctional officer who performed the strip search did not have the prior written
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authorization of a supervising officer on duty. Plaintiff Stafford had never been subjected to a strip search prior to December 3, 2004. The search was performed without there being, recorded in writing or otherwise, a particularized reasonable suspicion that the search would be productive of contraband or weapons.
82. She was humiliated and embarrassed by being subjected to the aforementioned strip and/or visual body cavity search and by being required to stand naked for any passerby to observe. By being unreasonably held without justification over 5 hours after being ordered “immediately released,” Plaintiff Stafford was unable to engage in work and otherwise engage in her normal everyday activities. She suffered mental and emotional distress as a direct and proximate result of Defendants’ actions in depriving her of rights secured to her by the Fourth and Fourteenth Amendments to the United States Constitution.
J. ALL PLAINTIFFS 83. The strip and visual body cavity searches to which Plaintiffs and all those similarly situated are subjected are short-lived legal violations that are over before they can be challenged in court because all Plaintiffs are released prior to or at First Appearance (within the first 48 hours of incarceration), and are legal violations which are an on-going policy of the Defendants and for which monetary damages alone after-the-fact is not suitable long-term relief. Similarly, the unreasonably long detention in the Jail after being ordered “immediately released” by a judge or after the posting of bond is a short-lived legal violation which is over before it can be challenged in court, and is a legal violation which is an on-going policy of the Defendants and for which monetary damages afterthe-fact is not a suitable long-term relief. There is a reasonable likelihood that Defendants’ policies and practices will continue and some Plaintiffs and Plaintiff class members will most certainly be
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re-arrested in Seminole County, Florida. Therefore, the illegal polices are capable of repetition but evading judicial review if declaratory and injunctive relief is not provided.
84. As a result of being subjected to the strip and/or visual body cavity searches complained of herein and the unreasonably long detention after being ordered immediately released or after posting bond, each of the Plaintiffs (except Lemister for the length of detention) suffered physical, mental and emotional distress, invasion of privacy, lost work opportunities, and the violation of due process of law and federal constitutional rights, and is entitled to recover damages according to proof.
CLASS ACTION ALLEGATIONS 85. The named Plaintiffs bring this suit as a class action, pursuant to the provisions of Rule 23(b)(2) & (3) of the Federal Rules of Civil Procedure for injunctive and declaratory relief, and monetary damages on behalf of a class of all persons similarly situated. 86. There are two Plaintiff classes. One class consists of all individuals who, within the applicable four year statute of limitations and continuing to this date, were subjected by Defendants to pre-First Appearance strip and/or visual body cavity searches at the John E. Polk Correctional Facility in Seminole County, Florida without Defendants having, and recording in writing, a particularized reasonable suspicion that the searches would be productive of contraband or weapons. 87. The other class consists of all persons unreasonably detained at the Jail for a period in excess of the time necessary to effectuate a release after a judge’s order for immediate release or the posting of bond. 88. These Plaintiff classes consists of an unknown but large number of individuals, numbering in the thousands, so that joinder of all members is impracticable.
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89. Plaintiffs are informed and believe, and thereupon allege, that Defendants have the ability to identify all such similarly situated Plaintiffs who were subjected to strip and/or visual body cavity searches prior to first appearance without Defendants first having, and recording, a particularized reasonable suspicion that the searches would be productive of contraband or weapons.
90. Plaintiffs are also informed and believe, and thereupon allege, that Defendants have the ability to identify all such similarly situated Plaintiffs who were unreasonably held in the Jail long after being ordered by a judge to be immediately released or after paying their bond.
91. There are questions of fact common to these classes including, but not limited to: (1) whether Defendants routinely subject all arrested persons to strip and/or visual body cavity searches prior to first appearance if they intend such persons to be housed in the John E. Polk Correctional Facility; (2) whether persons are subjected to strip and/or visual body cavity searches prior to First Appearance without there being any particularized reasonable suspicion, based on specific or articulable facts, to believe any particular arrestee has concealed drugs, weapons, and/or contraband in bodily cavities which could be detected by means of a strip and/or visual body cavity search; (3) whether the strip or visual body cavity searches are conducted in an area of privacy so that the searches cannot be observed by persons not participating in the searches, or whether the strip or visual body cavity search are conducted in areas where they may be observed by persons not participating in the searches; and (4) whether persons ordered to be immediately released by a judge or who have posted bond are held for an unreasonable time period prior to being released from the Jail.
92. There are questions of law common to the class, including, but not limited to: (1) whether Defendants may perform strip and/or visual body cavity searches on persons prior to their First Appearance without particularized reasonable suspicion, based on specific or articulable facts, to
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believe any particular arrestee has concealed drugs, weapons and/or contraband, which would likely be discovered by a strip and/or visual body cavity search; (2) whether strip and/or visual body cavity searches may be conducted in areas where the search can be observed by people not participating in the search without violating Plaintiffs’ federal constitutional rights; (3) whether Defendants’ strip and/or visual body cavity search policy and procedure is in accordance with the federal constitution; and (4) whether Defendants’ policy and procedure of detaining pre-trial detainees for hours after their immediate release has been ordered by a judge or after their bond has been paid violates Plaintiffs’ federal constitutional rights.
93. The claims of the representative Plaintiffs are typical of the classes. Plaintiffs were searched, prior to First Appearance, without reasonable suspicion that a strip and/or visual body cavity search would produce drugs, weapons or contraband. Representative Plaintiffs have the same interests and suffered the same type of injuries as all of the other class members. Plaintiffs’ claims arose because of Defendants’ policy, practice, and custom of subjecting arrestees to strip and/or visual body cavity searches before First Appearance without having a reasonable suspicion that the search would be productive of contraband or weapons. Plaintiffs’ claims (except Lemister) also arose for being unreasonably detained in the Jail for hours despite an order signed by a judge that the Plaintiffs be immediately released or released after posting bond. Plaintiffs’ claims are based upon the same legal theories as the claims of the class members. Each class member suffered actual damages as a result of being subjected to a visual body cavity search and being unreasonably held for hours after being ordered immediately released or after posting bond. The actual damages suffered by representative Plaintiffs are similar in type and amount to the actual damages suffered by each class member.
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94. The representative Plaintiffs will fairly and adequately protect the class interest. Plaintiffs’ interests are consistent with and not antagonistic to the interests of the class. They have a strong personal interest in the outcome of this action and have no conflicts of interest with members of the Plaintiff class. The named Plaintiffs were all subjected to strip and visual body cavity searches without legal justification. The named Plaintiffs (except Lemister) were all subjected to being unreasonably detained for hours in the Jail after being ordered immediately released by a judge or after posting bond. As long as the policies, practices and customs of the Defendants continue to permit dehumanizing invasive strip and visual body cavity searches or the Defendants continue to unreasonably detain persons ordered immediately released by a judge or after posting bond, the named Plaintiffs (except Lemister), and the class they represent, are and will remain at high risk of being subjected to searches in clear violation of established constitutional rights or being detained unreasonably in the Jail after being ordered immediately released by a judge or after posting bond.
95. The named Plaintiffs are represented by experienced counsel who specialize in civil rights class action litigation.
96. The prosecutions of separate actions by individual members of the class would create a risk that inconsistent or varying adjudications with respect to individual members of the class would establish incompatible standards of conduct for the parties opposing the class.
97. The prosecutions of separate actions by individual members of the class would create a risk of inconsistent adjudications with respect to individual members of the class which would, as a practical matter, substantially impair or impede the ability of the other members of the class to protect their interests.
98. The Defendants have acted on grounds generally applicable to the class, thereby making
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appropriate the final injunctive or declaratory relief with respect to the class as a whole. 99. A class action is superior to all other available methods for the fair and equitable
adjudication of the controversy between the parties. Plaintiffs are informed and believe, and thereupon allege, that the interests of members of the class in individually controlling the prosecution of a separate action is low in that most class members would be unable individually to prosecute any action at all. Plaintiffs are informed and believe, and thereupon allege, that most members of the class will not be able to find counsel to represent them. Plaintiffs are informed and believe, and thereupon allege, that it is desirable to concentrate all litigation in one forum because all of the claims arise in the same location. It will promote judicial efficiency to resolve the common questions of law and fact in one form, rather than in multiple courts.
COUNT ONE (Violation of Fourth Amendments to the U.S. Constitution on Behalf of Plaintiffs and All Persons Similarly Situated) 100. Plaintiffs repeat and reallege paragraphs one (1) through ninety-nine (99) as though fully set forth herein. 101. The strip and/or visual body cavity searches to which Plaintiffs and all those similarly situated were subjected were performed pursuant to policies, practices, and customs of named Defendants. 102. The strip and/or visual body cavity searches to which Plaintiffs and all those similarly situated were subjected are short-lived legal violations that are over before they can be challenged in court because all Plaintiffs are released prior to or at First Appearance (within the first 48 hours of incarceration), are legal violations which are an on-going policy of the Defendants and for which monetary damages after-the-fact is not a suitable long-term solution, there is a reasonable likelihood
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that the policy and practice will continue and plaintiff class members will be re-arrested, and therefore the illegal policy is capable of repetition but evading review if declaratory and injunctive relief is not provided.
103. The searches complained of herein were performed without regard to the nature of the alleged offenses for which Plaintiffs had been arrested, without regard to whether or not Plaintiffs were eligible for prompt release and without regard to whether or not Plaintiffs were eligible for and/or were released on their own recognizance. Furthermore, the searches complained of herein were performed without Defendants having a reasonable belief that the Plaintiffs so searched possessed drugs, weapons or contraband or that there existed facts supporting a particularized reasonable suspicion that the searches would produce drugs, weapons or contraband, and those facts being articulated and recorded in a supervisor-approved document.
104. Plaintiffs are informed and believe, and thereupon allege, that Defendants routinely follow their policy, practice, and custom of requiring pre-First Appearance detainees to strip naked and to submit to visual body cavity searches without having a particularized reasonable suspicion that the searches will be productive of drugs, weapons or contraband or weapons.
105. Strip and body cavity searches, as alleged in this Complaint, are done as a matter of routine, and are permitted and encouraged, in accordance with the established policies, practices and customs of the Defendants.
106. In searching the Plaintiffs as alleged, staff at the Jail act or have acted in accordance with the policy, practice and custom authorized or permitted by Defendants Tidwell and Diggs.
107. The policy, practice and custom of strip or visual body cavity searching all arrestees, as authorized or permitted by Defendants Tidwell and Diggs is attributable to Defendant Eslinger who,
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if he did not specifically authorize and permit the strip and visual body cavity searches as herein alleged, allowed Defendants Tidwell and Diggs to create and implement the policy, practice and custom employed at the Jail.
108. The policy, practice and custom of strip or visual body cavity searching all arrestees, as authorized or permitted by Defendants Tidwell, Diggs, and Eslinger, is attributable to Seminole County, which has delegated the creation of policy, practice and custom at the Jail to Defendant Eslinger.
109. Defendants Tidwell, Diggs, and Eslinger facilitate, encourage, and acquiesce in the behavior of their subordinates, who routinely conduct strip and visual body cavity searches, as alleged in this Complaint.
110. Individual named Defendants herein are personally responsible for the promulgation and continuation of the strip search policy, practice, and custom pursuant to which Plaintiffs herein and all those similarly situated, were subjected to the searches complained of herein.
111. Defendants’ policies, practices, and customs regarding the strip and visual body cavity searches complained of herein violated Plaintiffs’ rights under the Fourth Amendment of the U.S. Constitution to be free from unreasonable searches and seizures, and directly and proximately damaged Plaintiffs as herein alleged, entitling Plaintiffs to recover damages for said constitutional violations pursuant to 42 U.S.C. § 1983.
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COUNT TWO (Unreasonable Detention After Being Ordered to be Immediately Released is an Unreasonable Seizure in Violation of a Liberty Interest Forbidden by the Fourteenth Amendment to the U.S. Constitution on Behalf of Plaintiffs and All Persons Similarly
Situated)
112. Plaintiffs (except Lemister) repeat and reallege paragraphs one (1) through ninety-nine (99) as though fully set forth herein.
113. The unreasonably long detention in the Jail, after a release order is entered and after Jail officials are made aware of the order, or after the posting of bond, to which Plaintiffs (except Lemister) and all those similarly situated were subjected were performed pursuant to policies, practices, and customs of named Defendants.
114. The unreasonable detention to which the Plaintiffs (except Lemister) and all those similarly situated were subjected are short-lived legal violations that are over before they can be challenged in court, are legal violations which are an on-going policy of the Defendants and for which monetary damages alone after-the-fact is not a suitable long-term solution, there is a reasonable likelihood that the policy, practice, and custom will continue and Plaintiff class members will be rearrested, and therefore the illegal policy, practice, and custom is capable of repetition but evading review if declaratory and injunctive relief is not provided.
115. Plaintiffs are informed and believe, and thereupon allege, that Defendants routinely follow their policy, practice, and custom of unreasonable detention after receipt of release orders or the posting of bond.
116. Unreasonably long detentions, as alleged in this Complaint, are done as a matter of routine, and are permitted and encouraged, in accordance with the established policies, practices and
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customs of the Defendants. 117. In unreasonably detaining the Plaintiffs as alleged, staff at the Jail act or have acted in
accordance with the policy, practice and custom authorized or permitted by Defendants Tidwell and Diggs.
118. The policy, practice and custom of unreasonably long detention, as authorized or permitted by Defendants Tidwell and Diggs is attributable to Defendant Eslinger who, if he did not specifically authorize and permit the unreasonably long detention as herein alleged, allowed Defendants Tidwell and Diggs to create and implement the policy, practice and custom employed at the Jail.
119. The policy, practice and custom of unreasonably long detention, as authorized or permitted by Defendants Tidwell, Diggs, and Eslinger, is attributable to Seminole County, which has delegated the creation of policy, practice and custom at the Jail to Defendant Eslinger.
120. Defendants Tidwell, Diggs, and Eslinger facilitate, encourage, and acquiesce in the behavior of their subordinates, who routinely unreasonably detain persons ordered to be released or after the payment of bond, as alleged in this Complaint.
121. Individual named Defendants herein are personally responsible for the promulgation and continuation of the unreasonable detention policy, practice, and custom to which Plaintiffs, and all those similarly situated, were subjected.
122. Defendants’ policies, practices, and customs regarding the unreasonable detention after being ordered released or the payment of bond, violated Plaintiffs’ (except Lemister) rights to due process and a liberty interest under the Fourteenth Amendment, and directly and proximately damaged Plaintiffs as herein alleged, entitling Plaintiffs (except Lemister) to recover damages and
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declaratory and injunctive relief as requested hereunder for said constitutional violations pursuant to 42 U.S.C. § 1983.
Wherefore, Plaintiffs pray for relief as hereunder appears. PRAYER FOR RELIEF
A. For declaratory and injunctive relief declaring illegal and enjoining, preliminarily and permanently, Defendants’ policies, practices, and customs of subjecting pre-first appearance detainees to strip and visual body cavity searches without having a reasonable suspicion that such searches would be productive of drugs, contraband or weapons;
B. For declaratory and injunctive relief declaring illegal and enjoining, preliminarily and permanently, Defendants’ policies, practices, and customs of unreasonably detaining persons in the Jail after the receipt of a release order or the payment of bond;
C. Certification of this action as a class action, designation of Plaintiffs as class representatives and counsel as class counsel;
D. For compensatory, general, and special damages for each representative and for each member of the class of Plaintiffs, as against all Defendants;
E. Exemplary damages as against all of the individual Defendants in an amount sufficient to deter and to make an example of those Defendants;
F. Attorneys’ fees and costs under 42 U.S.C. § 1988; and G. The cost of this suit and such other relief as the court finds just and proper.
JURY TRIAL DEMANDED Plaintiffs demand trial by jury as to all issues triable as a right before a jury.
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Respectfully submitted,
Randall C. Berg, Jr., Esq. Fla. Bar No. 0318371 Peter M. Siegel, Esq. Fla. Bar No. 227862
Florida Justice Institute, Inc. 4320 Bank of America Tower 100 S.E. Second Street Miami, FL 33131-2309 305/358-2081 - Telephone 305/358-0910 - Facsimile rcberg@bellsouth.net - E-Mail
and
J. Larry Hanks, Esq. Fla. Bar No. 813982
Larry Hanks, P.A. 6500 South Highway 17-92 Fern Park, Florida 32730 407-423-1231 - Telephone 407-423-3066 - Facsimile larrylaw@bellsouth.net E-Mail
s/ Randall C. Berg, Jr. By: Randall C. Berg, Jr., Esq.
CERTIFICATE OF SERVICE
I hereby certify that the foregoing document will be sent by CM/ECF to all counsel of record
in this matter on the date of its electronic filing.
s/ Randall C. Berg, Jr. By: Randall C. Berg, Jr., Esq.
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 Case 6:05-cv-00850-GAP-KRS Document 58 Filed 05/04/2006 Page 1 of 6
UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA ORLANDO DIVISION
CASE NO.: 6:05-CV-850-0RL-31-KRS
RONALD M. PARILLA, ALDA RUGG, BILLY CATES, THERESA DECLUE, AILEEN NUNEZ, DAVID W. ROBERTS, KIM LEMISTER, and FRANTARSHIA STAFFORD, individually and on behalf of a class of all others similarly situated,
Plaintiffs,
v.
DONALD ESLINGER, individually and in his official capacity as Sheriff of Seminole County, MICHAEL TIDWELL, individually and in his official capacity as Director of the John E. Polk Correctional Facility, DAVID DIGGS, in his individually capacity, and SEMINOLE COUNTY,
Defendants.
--------------------------------------~/
ANSWER AND AFFIRMATIVE DEFENSES TO SECOND AMENDED CLASS ACTION COMPLAINT, BY DEFENDANTS ESLINGER, TIDWELL, AND DIGGS
COME NOW Defendants Donald Eslinger, individually and in his official
capacity as Sheriff of Seminole County, Florida, Michael Tidwell, individually and
in his official capacity as Director of the John E. Polk Correctional Facility, and

Case 6:05-cv-00850-GAP-KRS Document 58 Filed 05/04/2006 Page 2 of 6
David Diggs, in his individual capacity, and answer Plaintiffs' Second Amended Class-Action Complaint as follows:
1. It is admitted that Donald Eslinger is, and at all material times to this action was, the Sheriff of Seminole County, Florida. It is admitted that all actions undertaken by the Sheriff in relation to this action were taken in his discretionary authority as Sheriff.
2. It is admitted that Michael Tidwell is the current commander of the John E. Polk Correctional Facility and that all actions undertaken by him in regard to this matter were in his discretionary authority.
3. It is admitted that David Diggs was the commander of the John E. Polk Correctional Facility until approximately December 31, 2004, and that all actions undertaken by him in regard to this matter were in his discretionary authority.
4. All other allegations of Plaintiffs' Complaint not expressly admitted herein are denied.
5. It is specifically denied that the claims, or circumstances surrounding the claims of, the named Plaintiffs are common to, typical of, or representative of the claims of the proposed classes. It is further denied that the named Plaintiffs or their claims are otherwise appropriate as common to, typical of, representative of
2

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the proposed classes and it is further denied that this action may properly be maintained as a class action.
AFFIRMATIVE DEFENSES First Affirmative Defense
6. The Second Amended Class-Action Complaint fails to state a claim upon which relief may be granted in terms of the alleged unconstitutional strip searches. Specifically, particularized reasonable suspicion is not the correct standard for strip searches for safety and security, conducted at a pre-trial detention center.
Second Affirmative Defense 7. The Court has previously dismissed the claims for unconstitutional strip searches based on failure to obtain prior written authorization for search. To the extent that Plaintiffs continue to seek redress based on such claims, Defendants would assert that prior written authorization is not required by the U.S. Constitution nor does the requirement for prior written authorization in state statute represent a federal right actionable under §19830
Third Affirmative Defense 8. The Complaint fails to state a claim upon which relief may be granted as to the Fourteenth Amendment overdetention claims brought in Count II of the Second Amended Class-Action Complaint. Pursuant to the Court's order of
3

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December 5, 2005, these claims are governed by a Fourteenth Amendment due process analysis. The correct standard is a shocks the conscience or deliberate indifference standard and the time-frames complained of do not shock the conscience, reflect deliberate indifference to the constitutional rights of the Plaintiffs, or othelWise represent violations of Plaintiffs' rights.
Fourth Affirmative Defense 9. All claims brought on behalf of proposed class members, where the proposed class members were incarcerated or othelWise detained on the date of the filing or the bringing of this action, are barred by 42 U.S.C. § 1997(e) absent a showing by said Plaintiffs of a physical injury.
Fifth Affirmative Defense 10. To the extent sued in their individual capacities, each of the named Defendants was acting in his discretionary capacity as a governmental official and did not violate clearly established law such that he is entitled to qualified immunity from suit under 42 U.S.C. § 1983.
Sixth Affirmative Defense 11. Defendant Sheriff Eslinger is independently entitled to qualified immunity, to the extent sued in his individual capacity, as the actions complained of in the Second Amended Class-Action Complaint were not undertaken pursuant
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to the Sheriffs supervisory capacity and because the Defendant did not violate clearly established law.
Seventh Affirmative Defense The Court lacks jurisdiction over the injunctive relief sought under such doctrines as separation of powers and sovereign immunity, and should otherwise abstain from entry of any Order which interferes with the Defendants' judgment as members of the Executive branch in discretionary policy-making. The Court should defer to the Defendants in matters of jail management and should not interfere with decisions of the Defendants in day-to-day operation of the jail as the Court is not equipped to monitor or manage such issues and is an inferior position to do so, particularly with respect to the claims based in the procedures used or length of time for intake and release of inmates.
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CERTIFICATE OF SERVICE I hereby certify that on this 4th day of May 2006, I electronically filed the foregoing with the Clerk of the Court by using the CM/ECF system which will send a notice of electronic filing to the following: J. Larry Hanks, Esq., 6500 South Hwy. 17-92, Fern Park, FL 32730; Randall C. Berg, Jr., Esq., Peter M. Siegel, Esq., Cullin A. O'Brien, Esq., 200 S. Biscayne Blvd., Miami, FL 33131; Henry W. Jewett, II, Esq., and David T. White, III, Esq., 201 E. Pine Street, Suite 1500, Orlando, FL 32802. I further certify that I mailed the foregoing document and the notice of electronic filing by first-class mail to the following non-CMlECF participants: n/a
THOMAS W. POULTON, ESQUIRE Florida Bar No.: 0083798 D. ANDREW DeBEVOISE, ESQUIRE Florida Bar No.: 0281972 DeBEVOISE & POULTON, P.A. Lakeview Office Park, Suite 1010 1035 S. Semoran Boulevard Winter Park, Florida 32792 Telephone: 407/673-5000 Facsimile: 407/673-5059 Attorneys for Defendants ESLINGER, TIDWELL and DIGGS
U:\05-020 Parilla v SCSO\PLEADINGS\05-04-06 Defendant Sheriffs Answer and Affirmative Defenses, 2d am complaint--TWP.doc
6

 
 Case 6:05-cv-00850-GAP-KRS Document 67-3 Filed 12/29/2006 Page 1 of 17
EXHIBIT 2 JOINT MOTION FOR PRELIMINARY APPROVAL OF PROVISIONAL SETTLEMENT OF CLASS ACTION

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UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA ORLANDO DIVISION

RONALD M. PARILLA, ALDA RUGG, BILLY CATES, THERESA DECLUE, AILEEN NUNEZ, DAVID W. ROBERTS, KIM LEMISTER, SHANE BRADLEY, and FRANTARSHIA STAFFORD, individually and individually and on behalf of a Class of all others similarly situated,
Plaintiffs,
v.
DONALD ESLINGER, individually and in his official capacity as Sheriff of Seminole County, MICHAEL TIDWELL, individually and in his official capacity as Director of the John E. Polk Correctional Facility, DAVID DIGGS, in his individual capacity, and SEMINOLE COUNTY,
Defendants.

) ) ) ) ) ) ) ) ) ) ) ) Case No. 6:05-cv-850-Orl-31KRS ) ) ) ) ) ) ) ) ) ) )

STIPULATION OF SETTLEMENT
Plaintiffs RONALD M. PARILLA, ALDA RUGG, THE ESTATE OF BILLY CATES, THERESA DECLUE, AILEEN NUNEZ, DAVID W. ROBERTS, KIM LEMISTER, SHANE BRADLEY, and FRANTARSHIA STAFFORD, individually and on behalf of the settlement class defined herein, and Defendants DONALD ESLINGER, MICHAEL TIDWELL, DAVID DIGGS, and SEMINOLE COUNTY (hereinafter referred to as “Parties”), by and through their respective counsel, hereby submit the following Stipulation of Settlement.
I. RECITALS On June 9, 2005, original named Plaintiffs RONALD M. PARILLA, ALDA RUGG, BILLY

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CATES, THERESA DECLUE, AILEEN NUNEZ, DAVID W. ROBERTS, and FRANTARSHIA STAFFORD, on behalf of themselves and all persons similarly situated, filed a complaint in the above-captioned matter in which they challenged, pursuant to 42 U.S.C. § 1983, certain practices of Defendants including the strip search of certain detainees, prior to first appearance, and sought damages and declaratory and injunctive relief. The complaint was subsequently amended to challenge the practices of the Defendants to unreasonably detain persons ordered immediately released by a judge or who have posted bond and are held for an unreasonable time period prior to being released from the John E. Polk Correctional Facility. The complaint was subsequently amended to add Named Representative Plaintiffs KIM LEMISTER and SHANE BRADLEY.
The parties entered into extensive discovery which included exchange of documents, preparation of and responses to request for production of documents, interrogatories, and depositions.
Shortly after the December 3, 2004 incident involving the majority of the named Plaintiffs, the Sheriff’s Office reviewed the formal policy and training on strip searches at the John E. Polk Correctional Facility. As a consequence of that review, the Sheriff’s Office revised the policy. The new policy, made effective August 30, 2005 and revised on October 15, 2005, complies with Fla. Stat. § 901.211 regarding strip searches. A copy of the current policy, Policy and Procedure Number 09.13, relating to the strip search and body cavity searches of pre-first appearance detainees is attached hereto as Exhibit “1”.
On February 3, 2006, Judge Presnell issued an order substituting Terrance Schmidt as the mediator. Mediation was conducted on March 27, 2006. The parties attended the mediation and continued to discuss settlement after further discovery of various documents, and have now agreed to this Stipulation of Settlement which, subject to the approval of the Court, settles this action in the manner and upon the terms set forth below and fully resolves the dispute.
NOW, THEREFORE, IT IS HEREBY STIPULATED AND AGREED, by and between the Parties, as follows:
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II. DEFINITIONS FOR THIS STIPUATION 1. The “Bar Date” is the date established by the Court by which any Settlement Class Member (“SCM”) who wishes to receive payment pursuant to this Stipulation of Settlement must file his/her Claim Form(s), objections to this Stipulation of Settlement, or request to be excluded from the class (opt-out). 2. The “Claim Form” is the form required to be used to make a claim for payment under this settlement. A copy of the proposed Claim Form is attached as Exhibit “2”. 3. “Class Counsel” means, collectively, The Law Office of Larry Hanks, P.A., and Larry Hanks, attorney; and the Florida Justice Institute, Inc., and Randall C. Berg, Jr., attorney. 4. The “Class Notice” means the notice in a form substantially similar to that attached hereto as Exhibit “3” (Notice by Mail). 5. The “Class Period” is June 9, 2001, through August 30, 2005. 6. The “Effective Date” means the date upon which a judgment entered by the Court approving this Stipulation of Settlement becomes final. The judgment will be deemed final only upon expiration of the time to appeal or, if a Notice of Appeal is filed, upon exhaustion of all appeals and petitions for writ of certiorari. 7. “First appearance” means the procedure described in Rule 3.130, Florida Rules of Criminal Procedure. For purposes of this settlement, and to determine whether a person is an actual remand by court under Paragraph 11, a first appearance occurs when a person has actually appeared before a judge and been ordered into the custody of the Sheriff. 8. The “Named Representative Plaintiffs” are RONALD M. PARILLA, ALDA RUGG, THE ESTATE OF BILLY CATES, THERESA DECLUE, AILEEN NUNEZ, DAVID W. ROBERTS, KIM LEMISTER, SHANE BRADLEY, and FRANTARSHIA STAFFORD. 9. An “Opt-Out” is any potential Settlement Class Member who files a timely request for exclusion as specified in Paragraph 45.
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10. “Released Persons” means the Defendants and their predecessors, deputies, successors, and/or assigns, together with past, present, and future officials, employees, representatives, insurers, reinsurers, excess insurers, attorneys and/or agents of the Defendants.
11. The Settlement Class means all persons who meet all of the following criteria: (1) erroneously designated during the Class Period by the John E. Polk Correctional Facility as a "remand by court" (RBC) and thereby strip-searched; (2) who were at the time of the RBC designation facing only charges of a violation of a municipal ordinance, a traffic infraction, or misdemeanor charge not involving violence, drugs, or weapons; (3) who did not actually appear before a judge prior to the strip search; and (4) for whom there was not probable cause for a strip search to check for contraband or weapons. The Settlement Class is estimated to number between six (6) and nineteen (19) individuals and is anticipated to consist primarily of individuals who were arrested at the Seminole County Courthouse.
12. A “Settlement Class Member” (“SCM”) means any member of the Settlement Class including representatives, successors and assigns, who does not file a valid and timely Request for Exclusion as provided in Paragraph 45 of this Stipulation of Settlement. The “Named Representative Plaintiffs” are not SCMs.
13. “Special Master” shall mean Magistrate Judge Karla R. Spaulding of the United States District Court, Middle District of Florida, Orlando Division, who shall be appointed by the Court to preside over disputes related to this Stipulation of Settlement and who shall have power to make decisions in all matters pertaining to administration and enforcement of the Stipulation of Settlement.
14. “Strip search” is as defined in Fla. Stat. § 901.211, and means having an arrested person remove or arrange some or all of his or her clothing so as to permit a visual or non-intrusive inspection of the genitals; buttocks; anus; breasts; or undergarments of such person. It does not include a visual or non-intrusive inspection when done by medical personnel for medical reasons.
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III. TERMS AND EFFECT OF STIPULATION OF SETTLEMENT 15. This Stipulation of Settlement is for settlement purposes only, and neither the fact of, nor any provision contained in this Stipulation of Settlement or its exhibits, nor any action taken hereunder shall constitute, be construed as, or be admissible in evidence as any admission of the validity of any claim or any fact alleged by Plaintiffs or SCMs in this action or in any other pending action or of any wrongdoing, fault, violation of law, or liability of any kind on the part of Defendants or admission by Defendants of any claim or allegation made in this action or in any other action, nor as an admission by any of the Plaintiffs, SCMs or Class Counsel of the validity of any fact or defense asserted against them in this action or in any other action. Defendants deny all allegations of wrongdoing and deny any liability to Plaintiffs or to any other class members. The parties have agreed that, in order to avoid long and costly litigation, this controversy should be settled pursuant to the terms of this settlement, subject to the approval of the Court. 16. The parties agree solely for the purposes of this settlement and implementation that the within action shall proceed as a class action, with the Settlement Class as defined in Paragraph 11, and that attorneys for the Class are Class Counsel as defined in Paragraph 3, but if such settlement fails to be approved or otherwise fails of consumption, then this Stipulation of Settlement is hereby withdrawn. 17. The parties agree that the “Named Representative Plaintiffs” will not pursue the claims for themselves or for a class of unnamed persons for “overdetention,” or the perceived delay in outprocessing once an inmate has been ordered to be released by a Court or paid a bond. 18. In return for the release of any claims for overdetention or delay in outprocessing, and in recognition of the benefit to future inmates, the Sheriff’s Office, and Seminole County, of reducing the time required to perform these tasks, the Sheriff’s Office has either already implemented or will implement in the near future, the following changes: a. The Sheriff’s Office has purchased and is installing an automated telephonic
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information system that will allow members of the public to call and obtain information about friends and family who are inmates. This information will include pending charges, bond amount, and court dates. This information will be available in both English and Spanish. The Sheriff’s Office has also purchased a module for this system that will make this information available over the Internet. The purpose of this system is to improve communications between the public and the John E. Polk Correctional Facility and to reduce the time that intake and release clerks spend answering such inquiries. The Sheriff will report to the Court as soon as this task is completed. The Sheriff's Office agrees that, for a period of two years from the Effective Date, it will not substantively change this policy without first conferring with Plaintiffs' counsel or, in the event that counsel cannot agree on the change, the Court. b. The Sheriff’s Office has created four (4) additional positions [two (2) quality assurance specialists and two (2) detention service officers] in intake and release. The Sheriff’s Office is working to fill those positions. In the meantime, the Sheriff’s Office has reorganized staff to create special “release teams” that will focus on outprocessing during the highest volume days and times, particularly Wednesday and Thursday of each week, when volume of release is heaviest. The Sheriff will report to the Court as soon as these positions are filled. The Sheriff's Office agrees that, for a period of two years from the Effective Date, it will not substantively change this policy without first conferring with Plaintiffs' counsel or, in the event that counsel cannot agree on the change, the parties will bring to the Court for resolution. c. When an inmate is first booked into the John E. Polk Correctional Facility, one of the intake procedures is to obtain an National Crime Information Center (NCIC) check on the inmate. When that inmate is to be released, another NCIC check is usually run in order to determine whether new warrants or holds have been issued. Beginning
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at the latest January 1, 2007, for those inmates who have no aliases and no prior arrests, the initial NCIC check shall be used for the first twenty-four (24) hours of detention such that, if an inmate meets that criteria and is ordered to be released or posts bond within twenty-four (24) hours of intake, no additional NCIC check shall be necessary. The Sheriff will report to the Court as soon as this intake procedure is complete. The Sheriff's Office agrees that, for a period of two years from the Effective Date, it will not substantively change this policy without first conferring with Plaintiffs' counsel or, in the event that counsel cannot agree on the change, the parties will bring to the Court for resolution. d. The Sheriff’s Office will observe that an order stating that an inmate is subject to “immediate release” will be released as soon as possible, without the formal release process, and the goal for release in that circumstance shall be thirty(30) minutes or less. The Sheriff will report to the Court as soon as this procedure is implemented. The Sheriff's Office agrees that, for a period of two years from the Effective Date, it will not substantively change this policy without first conferring with Plaintiffs' counsel or, in the event that counsel cannot agree on the change, the parties will bring to the Court for resolution. 19. There are no persons currently known to the Plaintiffs and their counsel who were relying on the possible class certification for the waived claim of “overdetention” or the perceived delay in outprocessing once a person has been ordered to be released by a court or paid a bond. However, in the event there are such persons, Defendants hereby agree and stipulate as follows: a. Defendants hereby waive and shall not assert the defense of statute of limitations against any person who files a claim in a lawsuit for “overdetention” or the perceived delay in outprocessing once a person has been ordered to be released by a court or paid a bond from June 9, 2001 until four (4) years prior to the Effective Date provided said claim has been filed in another lawsuit no more than sixty (60) days
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after the Effective Date. 20. There are no persons currently known to the Plaintiffs and their counsel who do not meet the criteria of Paragraph 11 who were relying on the possible class certification to include all persons arrested on municipal ordinance, infraction or misdemeanor charges not involving violence, drugs or weapons who, prior to first appearance were incarcerated in the John E. Polk Correctional Facility, and who were strip searched without “probable cause” reported in writing on an incident form. However, in the event there are such persons, Defendants hereby agree and stipulate as follows: a. Defendants hereby waive and shall not assert the defense of statute of limitations
against any person who files a claim in a lawsuit for “being illegally strip searched” from June 9, 2001 until four (4) years prior to the Effective Date provided said claim has been filed in another lawsuit no more than sixty (60) days after the Effective Date. 21. SCMs who comply with the requirements set forth in this Stipulation of Settlement will be paid specified sums determined by the procedures set forth herein in full satisfaction of all claims. 22. The Stipulation of Settlement, as of the Effective Date, resolves in full all claims against the Released Persons by all of the SCMs, including the Named Representative Plaintiffs RONALD M. PARILLA, ALDA RUGG, THERESA DECLUE, AILEEN NUNEZ, DAVID W. ROBERTS, KIM LEMISTER, SHANE BRADLEY, FRANTARSHIA STAFFORD, and the ESTATE OF BILLY CATES, involving violation of their Fourth Amendment rights, their Fourteenth Amendment rights, or of any other federal, state or local law, regulation, duty, or obligation which are based upon or could be based upon or arise from the facts alleged in Case No. 6:05-cv-850-GAP-KRS filed in the United States District Court, Middle District of Florida, Orlando Division, including the Named Representative Plaintiffs' claims for unlawful strip searching and overdetention or delay in outprocessing. When the Stipulation of Settlement is final, as of the Effective Date, all SCMs, including the Named Representative Plaintiffs, hereby release all such claims.
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23. The Parties agree that the Court, by preliminarily approving the Stipulation of Settlement, will be certifying the class as defined in Paragraph 11, as the Settlement Class, subject to final approval of this Stipulation of Settlement at the fairness hearing and that the Court shall retain exclusive and continuing jurisdiction of the action, Parties, SCMs, and the Special Master to interpret and enforce the terms, conditions and obligations under this agreement.
24. The parties further agree that once this Stipulation of Settlement is entered as an Order of the Court, the Court shall retain jurisdiction for two (2) years to enforce the implementation of those measures set forth in Paragraph 18.
25. As of the Effective Date of this Stipulation of Settlement, the SCMs, including the Named Representative Plaintiffs, hereby waive any and all rights to pursue, initiate, prosecute, or commence any action or proceeding before any court, administrative agency or other tribunal, or to file any complaint with regard to acts of commission or omission by the Released Persons respecting such SCMs with respect to any strip search by Defendants prior to their first appearance which occurred during the Class Period, or for “overdetention” or the perceived delay in outprocessing once a person has been ordered to be released by a Court or paid a bond
26. This Stipulation of Settlement contains all the terms and conditions agreed upon by the Parties hereto regarding the subject matter of the instant proceeding, and no oral agreement entered into at any time nor any written agreement entered into prior to the execution of this Stipulation shall be deemed to exist, or to bind the Parties hereto, or to vary the terms and conditions contained herein, except as expressly provided herein.
27. The ESTATE OF BILLY CATES shall be substituted for Named Representative Plaintiff BILLY CATES.
28. No Opt-Out shall share in any monetary benefits provided by this Stipulation of Settlement.
29. This agreement is subject to and conditioned upon the final approval of this Stipulation of Settlement and the issuance of the final order by the United States District Court, Middle District
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of Florida, Orlando Division, providing the below specified relief, which relief shall be pursuant to the terms and conditions of this Stipulation of Settlement and the Parties’ performance of their continuing rights and obligations hereunder. The order and judgment will be deemed final only upon expiration of the time to appeal, or if a Notice of Appeal is filed, upon exhaustion of all appeals and petitions for writs of certiorari. Such final order and judgment shall:
a. Dismiss with prejudice all complaints in the action as to the Released Persons; b. Provide that no SCM shall assert against any Released Person any claims which the
SCMs had, has, or may have in the future arising out of the facts alleged in the Complaint; c. Release each Released Person from the claims which any SCMs has, had, or may have in the future, against such Released Person arising out of the facts alleged in the Complaint; d. Determine that this Stipulation of Settlement is entered into in good faith, is reasonable, fair and adequate, and in the best interest of the Class; and e. Reserve the Court’s continuing and exclusive jurisdiction over the Parties to this Stipulation of Settlement, including Defendants and all SCMs, to administer, supervise, construe and enforce the Stipulation of Settlement in accordance with the terms for the mutual benefit of all the Parties. 30. The parties will take all necessary and appropriate steps to obtain preliminary approval of the Stipulation of Settlement, final approval of the Settlement, and entry of a final order, as described in Paragraph 29. If the Court finally approves this Stipulation of Settlement, and if there is an appeal from such decision, the Defendants will not oppose Plaintiffs’ efforts to defend the Stipulation of Settlement.
IV. RESOLUTION AND PAYMENT OF CLAIMS FOR DAMAGES 31. The total settlement amount which shall be used to pay all claims, attorney fees and
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litigation expenses shall be $620,000.00 (Six Hundred and Twenty Thousand Dollars). The total settlement amount will be distributed as follows: (1) $360,000.00 (Three Hundred and Sixty Thousand Dollars) will be allocated for payment of the nine (9) Named Representative Plaintiffs’ claims; (2) $54,000.00 (Fifty-Four Thousand Dollars) will be allocated to pay all verified claims of the SCMs; and (3) $206,000.00 (Two Hundred and Six Thousand Dollars) will be allocated to pay attorneys’ fees and litigation expenses for the costs and expenses incurred by Class Counsel in the prosecution of this case. Within ten (10) days of preliminary approval by the United States District Court of the terms of this Stipulation of Settlement, Defendants will certify that they have sufficient funds available to them or on deposit to satisfy fully the terms of this Stipulation of Settlement.
32. The payment of $360,000.00 (Three Hundred and Sixty Thousand Dollars) for the Named Representative Plaintiffs shall be paid by check made out to the client trust account of the Florida Justice Institute, Inc., and shall be delivered within ten (10) days of the Effective Date.
33. The payment of $54,000.00 (Fifty-Four Thousand Dollars) for the other SCMs shall be paid by check made out to the client trust account of the Florida Justice Institute, Inc., and shall be delivered within ten (10) days of the Effective Date.
V. PROCEDURES FOR NAMED REPRESENTATIVE
PLAINTIFFS RECEIVING PAYMENT
34. The Named Representative Plaintiffs shall be paid by Class Counsel in equal amounts from that portion of the settlement described in Paragraph 31 promptly after the Effective Date.
VI. PROCEDURES FOR DETERMINING PROSPECTIVE CLAIMANTS
AS SCMs AND RECEIVING PAYMENT
35. Defendants shall provide Class Counsel with access to the files of the six (6) to nineteen (19) persons whom Defendants have pre-determined may have been strip searched prior to first appearance following arrests on charges not involving violence, drugs, or weapons within ten (10)
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days of the Court’s preliminary approval of this Stipulation of Settlement. Thereafter, counsel for the parties shall jointly review the files, and any other available information of those pre-determined to possibly be SCMs as well as those who submit Claims Forms, to identify the final SCMs.
36. In the event counsel for the parties can not reach agreement on who is a member of the settlement class, counsel for either party may request the Special Master to determine whether the person in dispute qualifies as a SCM.
37. Once a final list of SCMs from the pre-determined possible claimants is completed, Defendants shall provide Plaintiffs’ counsel from its various criminal and other data bases, including but not limited to NCIC and FCIC, with the names, and best known addresses of SCMs for purpose of providing notice to them.
38. Class Counsel will send actual notice by first class U.S. Mail of the Stipulation of Settlement to each possible claimant in the form attached as Exhibit 3 as well as a Claim Form attached as Exhibit 2. In addition, Class Counsel will attempt to make personal contact by phone of each possible claimant.
39. Each SCM who submits a timely verified claim form shall be entitled to $1,800.00 (Eighteen Hundred Dollars). In the event, there are more than thirty (30) verified SCMs, this entire Stipulation of Settlement is withdrawn and will be null and void, and the matter will be placed back on the trial calendar, and a new Case Management Report and Scheduling Order shall be entered. However, the Defendants may at their sole option agree to pay $1,800.00 (Eighteen Hundred Dollars) to each of the verified SCMs in excess of thirty (30) and thereby allow this Stipulation of Settlement to become the final order of the Court. Any funds remaining from the $54,000 (Fifty-Four Thousand Dollars) after all verified SCMs have been compensated will be returned to the Defendants. No funds shall be released to any person, including the Named Representative Persons or their counsel, until such time that it is determined and certified to the Court by the parties that the number of verified claims for SCMs is less than or equal to thirty (30), or, in the event the number of verified claims for SCMs is thirty (30) or more, until such time as the Defendants have indicated and stipulated that they
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agree to pay the additional excess verified claims over thirty (30). In the event that the Settlement is withdrawn due to the number of verified claims being in excess of thirty (30), the Plaintiffs and their counsel agree to immediately return to the Defendants the $620,000 (Six Hundred and Twenty Thousand Dollars) in proceeds for the settlement as described above. Defendants shall decide whether to pay any additional excess verified claims over thirty (30) within fourteen (14) calendar days of the Bar Date.
40. Any SCM who fails to timely submit a Claim Form completed in accordance with the instructions contained therein by the Bar Date or any other Court mandated extension, shall be forever barred from receiving any payment pursuant to the Stipulation of Settlement. Such SCM shall in all other respects be bound by all of the terms of the Stipulation of Settlement, and the judgment entered herein, including but not limited to the release of all Released Persons of all claims resolved herein.
VII. GENERAL CLAIM PROCEDURES 41. To receive payment, an SCM shall be required to timely submit to Class Counsel at the Florida Justice Institute, Inc., an executed Claim Form signed under penalty of perjury and submitted by the Bar Date unless such period is extended by order of the Court. 42. The Claim Form shall be submitted by first class mail and shall be deemed submitted upon the date of the postmark thereon. 43. SCMs who submit claims will be paid by mail at the address specified on the Claim Form or wherever they later direct. 44. The Named Representative Plaintiffs shall be deemed fully compensated by the distribution to them by Class Counsel of $360,000.00 (Three Hundred and Sixty Thousand Dollars) and shall not be permitted or required to submit Claim Forms.
VIII. EXCLUSION FROM THE SETTLEMENT CLASS 45. Any potential SCM who wishes to be excluded from the Settlement Class must file a
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request to be excluded from the class with the Clerk of the Court, on or before the Bar Date or as the Court may otherwise direct. Named Representative Plaintiffs will not request exclusion pursuant to this paragraph.
46. Any potential SCM who does not timely file a Request for Exclusion shall conclusively be deemed to have become an SCM and to be bound by this Stipulation of Settlement and all subsequent proceedings, orders, and judgments herein.
47. Any SCM who does not elect to be excluded from the Settlement Class may, but need not, enter an appearance through his or her own attorney.
IX. OBJECTING TO THE PROPOSED SETTLEMENT 48. Any SCM who does not elect to be excluded from the Settlement Class may, but need not, submit comments or objections to the proposed settlement. The Court will enter an appropriate order setting forth the procedure for SCMs to submit comments or objections to the proposed settlement and notice of same will be sent to all potential SCMs by first class U.S. Mail.
X. ATTORNEYS’ FEES AND EXPENSES 49. Class Counsel shall receive a total award of $206,000.00 (Two Hundred and Six Thousand Dollars) for attorney fees, costs and expenses incident to prosecution of this action including any fees and costs incurred in seeking final approval of this Stipulation of Settlement and the defense thereof in any court or jurisdiction. Payment will be made within ten (10) days of the Effective Date by check delivered to Randall C. Berg, Jr., Esq., Class Counsel, c/o Florida Justice Institute, Inc., 100 S.E. Second Street, 4320 Bank of America Tower, Miami, FL 33131-2309 , made payable jointly to the Florida Justice Institute, Inc. and the Law Office of Larry Hanks, P.A.
XI. NOTICE 50. Notice to SCMs who were pre-determined as possible claimants as determined in Part VI
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of this Stipulation of Settlement shall be by first class mail, postage prepaid, to all individuals whose addresses are on various data bases maintained or available to the Defendants. Both Parties will exercise their best efforts to update and to verify addresses, including but not limited to addresses of SCMs who are incarcerated. This paragraph shall not limit further appropriate efforts to provide notice.
51. In addition to the Notice specified in Paragraph 50, Defendants shall, at their own expense, commence publishing within ten (10) days of the Court’s preliminary approval of this Stipulation of Settlement, Notice of this proposed Stipulation of Settlement in the Orlando Sentinel (which is delivered in Seminole County and all counties adjoining Seminole County). The Notice shall be substantially in the form attached as Exhibit “3,” shall be published once per week for a period of two weeks, and shall occupy not more than 1/4 of a page of the newspaper.
Respectfully submitted, Randall C. Berg, Jr., Esq. Fla. Bar No. 0318371 Peter M. Siegel, Esq. Fla. Bar No. 227862 Florida Justice Institute, Inc. 4320 Bank of America Tower 100 S.E. Second Street Miami, FL 33131-2309 305/358-2081 - Telephone 305/358-0910 - Facsimile rcberg@bellsouth.net - E-Mail and J. Larry Hanks, Esq. Fla. Bar No. 813982 Larry Hanks, P.A. 6500 South Highway 17-92 Fern Park, Florida 32730 407-423-1231 - Telephone 407-423-3066 - Facsimile larrylaw@bellsouth.net E-Mail
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December 29, 2006

s/ Randall C. Berg, Jr. By: Randall C. Berg, Jr., Esq.
Attorneys for the Plaintiffs
Thomas W. Poulton, Esq. Fla. Bar No. 0083798 D. Andrew DeBevoise, Esq. Fla. Bar No. 0281972
DeBevoise & Poulton, P.A. Lakeview Office Park, Suite 1010 1035 S. Semoran Boulevard Winter Park, Florida 32792 407/673-5000 - Telephone 407/673-5059 - Fax Poulton@debevoisepoulton.com - E-mail:
s/ Thomas W. Poulton By: Thomas W. Poulton, Esq
Attorneys for Defendants Eslinger, Tidwell, and Diggs
Henry W. Jewett, II, Esq. Fla. Bar No. 380024 David T. White, III, Esq. Fla. Bar No. 0528171
Rissman, Barrett, Hurt, Donohue & McLain, P.A. 201 E. Pine Street, 15th Floor P.O. Box 4940 Orlando, Florida 32802-4940 (407) 839-0120-Telephone (407) 841-9726-Facsimile trey.white@rissman.com - E-mail
Attorneys for Seminole County
s/ David T. White, III By: David T. White, III, Esq.

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 Case 6:05-cv-00850-GAP-KRS Document 73 Filed 01/25/2007 Page 1 of 17

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA ORLANDO DIVISION

RONALD M. PARILLA, ALDA RUGG, BILLY CATES, THERESA DECLUE, AILEEN NUNEZ, DAVID W. ROBERTS, KIM LEMISTER, SHANE BRADLEY, and FRANTARSHIA STAFFORD, individually and individually and on behalf of a Class of all others similarly situated,
Plaintiffs,
v.
DONALD ESLINGER, individually and in his official capacity as Sheriff of Seminole County, MICHAEL TIDWELL, individually and in his official capacity as Director of the John E. Polk Correctional Facility, DAVID DIGGS, in his individual capacity, and SEMINOLE COUNTY,
Defendants.

) ) ) ) ) ) ) ) ) ) ) ) Case No. 6:05-cv-850-Orl-31KRS ) ) ) ) ) ) ) ) ) ) )

ORDER FOR PRELIMINARY APPROVAL OF SETTLEMENT OF CLASS ACTION

WHEREAS, Plaintiffs, RONALD M. PARILLA, ALDA RUGG, THE ESTATE OF BILLY CATES, THERESA DECLUE, AILEEN NUNEZ, DAVID W. ROBERTS, KIM LEMISTER, SHANE BRADLEY, and FRANTARSHIA STAFFORD, by and through attorneys, and Defendants DONALD ESLINGER, MICHAEL TIDWELL, DAVID DIGGS, and SEMINOLE COUNTY, by and through their attorneys, have entered into a Stipulation of Settlement intending to resolve all claims raised in this class action pending in this Court;
WHEREAS, the Stipulation of Settlement, together with the supporting materials, sets forth the terms and conditions for a proposed settlement and dismissal with prejudice of the pending class action against all Defendants;
WHEREAS, the Court has before it and has reviewed the parties’ Stipulated Motion for

Case 6:05-cv-00850-GAP-KRS Document 73 Filed 01/25/2007 Page 2 of 17
Preliminary Approval of Settlement of Class Action together with Stipulation of Settlement and supporting materials; and
WHEREAS, the Court is satisfied that the terms and conditions set forth in the Stipulation of Settlement were the result of good faith, arms length settlement negotiations between competent and experienced counsel for both Plaintiffs and Defendants, after mediation ordered by this Court before Terrence Schmidt;
IT IS HEREBY ORDERED AS FOLLOWS: 1. The terms of the Stipulation of Settlement are hereby preliminarily approved, subject to further consideration thereof at the Fairness Hearing provided for below. The Court finds that the settlement is sufficiently within the range of reasonableness and that notice of the proposed settlement should be given as provided in this Order. 2. The Court hereby orders that the class of persons defined in Paragraph 11 of the Stipulation of Settlement filed and incorporated by reference herewith is certified as a Provisional Settlement Class. 3. The Court further conditionally finds that Plaintiffs RONALD M. PARILLA, ALDA RUGG, THE ESTATE OF BILLY CATES, THERESA DECLUE, AILEEN NUNEZ, DAVID W. ROBERTS, KIM LEMISTER, SHANE BRADLEY, and FRANTARSHIA STAFFORD are adequate class representatives for the Settlement Class. 4. The Court further finds that Plaintiffs’ counsel The Law Office of Larry Hanks, P.A., and Larry Hanks, attorney; and the Florida Justice Institute, Inc., and Randall C. Berg, Jr., attorney,. are adequate class counsel. 5. The Court approves the Notice of Proposed Settlement of Class Action Strip Search Case attached hereto as Exhibit A and further approves the method by which notice is proposed to be given. 6. If, pursuant to the terms of the Stipulation of Settlement, the settlement is not consummated, the conditional certification of the Settlement Class and preliminary approval of the
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Stipulation of Settlement shall be void and the parties shall have reserved all of the rights to continue
with any litigation or further mediation or settlement discussions.
7. The Bar Date, as defined in paragraph 1 of the Stipulation of Settlement, shall be May 4,
2007.
8. Counsel for the class (“class counsel”) are as follows:
Randall C. Berg, Jr., Esq. Fla. Bar No. 0318371
Florida Justice Institute, Inc. 4320 Bank of America Tower 100 S.E. Second Street Miami, FL 33131-2309 305/358-2081 - Telephone 305/358-0910 - Facsimile rcberg@bellsouth.net - E-Mail
and
J. Larry Hanks, Esq. Fla. Bar No. 813982 Larry Hanks, P.A. 6500 South Highway 17-92 Fern Park, Florida 32730 407-423-1231 - Telephone 407-423-3066 - Facsimile larrylaw@bellsouth.net E-Mail
9. Counsel for Defendants are as follows:
Thomas W. Poulton, Esq. Fla. Bar No. 0083798 D. Andrew DeBevoise, Esq. Fla. Bar No. 0281972
DeBevoise & Poulton, P.A. Lakeview Office Park, Suite 1010 1035 S. Semoran Boulevard Winter Park, Florida 32792 407/673-5000 - Telephone 497/673-5059 - Fax Poulton@debevoisepoulton.com - E-mail:
Attorneys for Defendants Eslinger, Tidwell, and Diggs
Henry W. Jewett, II, Esq. Fla. Bar No. 380024 David T. White, III, Esq.
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Fla. Bar No. 0528171 Rissman, Barrett, Hurt, Donohue & McLain, P.A. 201 E. Pine Street, 15th Floor P.O. Box 4940 Orlando, Florida 32802-4940 (407) 839-0120-Telephone (407) 841-9726-Facsimile trey.white@rissman.com - E-mail 10. Beginning no later than February 12, 2007, counsel for the parties shall cause to be disseminated the Notice and Claim Form, substantially in the form attached as Exhibits A and B hereto, in the manner set forth in Parts VI and XI of the Stipulation of Settlement. Class members will have up to and including May 4, 2007, in which to opt out of this settlement, to object to the settlement or to file claims. Prior to the Fairness Hearing, the parties shall file and serve a sworn statement attesting to compliance with the provisions of this paragraph. 11. The notice to be provided as set forth in the Stipulation of Settlement is hereby found to be the best means practicable of providing notice under the circumstances and, when completed, shall constitute due and sufficient notice of the proposed settlement and the Fairness Hearing to all persons and entities affected by and/or entitled to participate in the settlement, in full compliance with applicable statutes, due process, the Constitution of the United States, and other applicable laws. The notices are accurate, objective, informative and provide class members with all of the information necessary to make an informed decision regarding their participation in the settlement and its fairness. 12. Any member of the Settlement Class who wishes to be excluded (“opt out”) from the Settlement Class must send a written request for exclusion to the Court, so that it is received by the Court at the address indicated in the mailed and published Notice on or before the Bar Date. The request for exclusion shall fully comply with requirements set forth in the Stipulation of Settlement. Members of the Settlement Class may not exclude themselves by filing requests for exclusion as a group or class, but must in each instance individually and personally execute a request for exclusion and timely transmit it to the Court.
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13. Any member of the Settlement Class who does not properly and timely request exclusion from the Settlement Class shall be bound by all of the terms and provisions of the Stipulation of Settlement, including but not limited to the releases, waivers and covenants described in the Stipulation of Settlement, whether or not such person objected to the settlement and whether or not such person made a claim upon or participated in the Settlement Fund created pursuant to the Stipulation of Settlement.
14. A hearing on final approval, the “Fairness Hearing,” is hereby scheduled to be held before this Court on Thursday, May 24, 2007, at 1:00 p.m., to consider the fairness, reasonableness, and adequacy of the proposed settlement, the dismissal with prejudice of these class action complaints with respect to the released parties herein, and the entry of final judgment in the class action. Class counsel’s request for approval of an award of attorneys’ fees and costs shall be heard at the time of the Fairness Hearing.
15. The date and time of the Fairness Hearing shall be set forth in the Notice, but the Fairness Hearing shall be subject to adjournment by the Court without further notice to the members of the Settlement Class other than that which may be issued by the Court.
16. Any person who does not elect to be excluded from the Settlement Class may, but need not, enter an appearance through his or her own attorney. Settlement Class members who do not enter an appearance through their own attorneys will be represented by class counsel.
17. Any person who does not elect to be excluded from the Settlement Class may, but need not, submit comments or objections to the proposed settlement. Any class member may object to the proposed settlement, entry of the final order and judgment approving the settlement, and class counsel’s application for approval of attorneys’ fees and expenses by filing and serving a written objection.
18. Any class member making the objection (an “objector”) must sign the objection personally. Any objection must state why the objector objects to the proposed settlement and provide the basis to support such position. If an objector intends to appear personally at the Fairness
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Hearing, the objector must include with the objection a notice of the objector’s intent to appear at the hearing.
19. Objections, along with any notice of intent to appear, must be filed with the Court no later than May 4, 2007. If counsel is appearing on behalf of more than one class member, counsel must identify each such class member and each class member must have complied with the requirements of this order. These documents must be filed with the Clerk of the Court at the following address: United States District Court, Middle District of Florida, Orlando Division, Judge Gregory A. Presnell, George C. Young U.S. Courthouse & Federal Building, 80 North Hughey Avenue Orlando, Florida 32801.
20. Objections, along with any notice of intent to appear, must also be mailed to class counsel and counsel for Defendants at the addresses listed below:
Class Counsel Randall C. Berg, Jr., Esq. Fla. Bar No. 0318371 Florida Justice Institute, Inc. 4320 Bank of America Tower 100 S.E. Second Street Miami, FL 33131-2309 305/358-2081 - Telephone 305/358-0910 - Facsimile rcberg@bellsouth.net - E-Mail
Counsel for Defendants Eslinger, Tidwell, and Diggs: Thomas W. Poulton, Esq. Fla. Bar No. 0083798 DeBevoise & Poulton, P.A. Lakeview Office Park, Suite 1010 1035 S. Semoran Boulevard Winter Park, Florida 32792 407/673-5000 - Telephone 497/673-5059 - Fax Poulton@debevoisepoulton.com - E-mail
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Counsel for Defendant Seminole County David T. White, III, Esq. Fla. Bar No. 0528171 Rissman, Barrett, Hurt, Donohue & McLain, P.A. 201 E. Pine Street, 15th Floor P.O. Box 4940 Orlando, Florida 32802-4940 (407) 839-0120-Telephone (407) 841-9726-Facsimile trey.white@rissman.com - E-mail 21. Only class members who have filed and served valid and timely notices of objection shall be entitled to be heard at the Fairness Hearing. Any class member who does not timely file and serve an objection in writing to the settlement, entry of final order and judgment, or to class counsel’s application for fees and expenses, in accordance with the procedure set forth in the class notice and mandated in the order, shall be deemed to have waived any such objection by appeal, collateral attack, or otherwise. 22. Persons wishing to be heard at the Fairness Hearing are required to file written comments or objections and indicate in their written comments or objections their intention to appear at the Fairness Hearing. Settlement Class members need not appear at the hearing or take any other action to indicate their approval. 23. All members of the Settlement Class who do not personally and timely request to be excluded from the class are enjoined from proceeding against the Defendants until such time as the Court renders a final decision regarding approval of the settlement and, if the settlement is approved, enters final judgment as provided in the Stipulation of Settlement. 24. Upon approval of the settlement provided for in the Stipulation of Settlement, each and every term and provision shall be deemed incorporated herein as if expressly set forth and shall have the full force and effect of an order of this Court. 28. Magistrate Judge Karla Spaulding of the United States District Court is hereby appointed to serve as Special Master to review and resolve certain disputes pursuant to the terms of the Stipulation of Settlement.
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29. All reasonable costs incurred in notifying members of the Settlement Class as well as administering the Stipulation of Settlement shall be paid as set forth in the Stipulation of Settlement.
DONE and ORDERED in Chambers, Orlando, Florida on January 25, 2007.
Copies furnished to: Counsel of Record Magistrate Judge Karla Spaulding Clerk of the Court

NOTICE OF PROPOSED SETTLEMENT OF CLASS ACTION STRIP SEARCH CASE

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EXHIBIT A
ORDER FOR PRELIMINARY APPROVAL OF SETTLEMENT OF CLASS ACTION

NOTICE OF PROPOSED SETTLEMENT OF CLASS ACTION STRIP SEARCH CASE

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Page 9 of 17

Case 6:05-cv-00850-GAP-KRS Document 73 Filed 01/25/2007 Page 10 of 17

NOTICE OF PROPOSED SETTLEMENT OF CLASS ACTION STRIP SEARCH CASE
PLEASE READ THIS ENTIRE NOTICE CAREFULLY. YOU MAY BE ENTITLED TO RECEIVE A PAYMENT.

It has been determined that you were arrested and booked at the John E. Polk Correctional Facility in Seminole County and strip-searched prior to your first appearance between June 9, 2001 and August 30, 2005, and are entitled to monetary compensation under a class action settlement.
If You Wish to Claim Monetary Compensation, fill out and return by mail the enclosed Claim Form as Soon as Possible but No Later than May 4, 2007.
For more inform ation, please read this notice.
There is now pending in the United States District Court, Middle District of Florida, Orlando Division, an action filed as a class action on behalf of persons allegedly illegally strip searched and unreasonably detained after being ordered im m ediately released or posting bond at the Sem inole County Jail between June 9, 2001 and August 30, 2005. A Stipulation of Settlem ent, approved prelim inarily by the Court, defines the class in this settlement as follows:
All persons who m eet all of the following criteria: (1) erroneously designated during the Class Period by the John E. Polk Correctional Facility as a "remand by court" (RBC) and thereby strip-searched; (2) who were at the tim e of the RBC designation facing only charges of a violation of a m unicipal ordinance, a traffic infraction, or misdemeanor charge not involving violence, drugs, or weapons; (3) who did not actually appear before a judge prior to the strip search; and (4) for whom there was not probable cause for a strip search to check for contraband or weapons.
The Settlem ent Class is estim ated to num ber between six (6) and nineteen (19) individuals and believed to consist prim arily of individuals who were arrested while at or near the Seminole County Courthouse.
While the Stipulation of Settlement does make changes to better ensure that persons who have been ordered released from detention or who have posted bond will not be kept for an unreasonable length of time, it does not provide any such persons with monetary damages.
You have received this Notice because the parties have determ ined that you are a possible class mem ber based on their review of the Sheriff’s records and your crim inal case file.
This Notice is to inform you that a settlem ent has been proposed in this action and that, as a possible class member, your rights may be affected by the settlement. This Notice also summarizes the terms and effect of the proposed settlem ent, what you can do to participate in it, how you may obtain m oney under the settlem ent and what you m ust do if you choose to exclude yourself from the class.
SUMMARY OF THE PROPOSED TERMS
A Stipulation of Settlem ent (“Settlem ent”) was entered into after intensive negotiations between the parties, conducted with the assistance of a third party mediator. The Parties are requesting that the Court approve

NOTICE OF PROPOSED SETTLEMENT OF CLASS ACTION STRIP SEARCH CASE

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the Settlem ent.
A. Parties to the Settlement.
The parties to the Settlem ent are the Plaintiffs named in Parilla, et al. v. Donald Eslinger, et al., United States District Court, Middle District of Florida, Orlando Division, Case No. 6:05-cv-850-Orl-31KRS filed on behalf of themselves and the Settlement Class, and various defendants including the Sheriff of Seminole County, the current and past Directors of the John E. Polk Correctional Facility, and Seminole County. Counsel for the class are Randall C. Berg, Jr., Esq., Florida Justice Institute, Inc., 4320 Bank of America Tower, 100 S.E. Second Street, Miami, FL 33131-2300 and J. Larry Hanks, Esq., Larry Hanks, P.A., 6500 South Highway 1792, Fern Park, Florida 32730.
B. Defendants Do Not Admit Any Liability
Plaintiffs allege that the acts and/or omissions which are the subject of the claims covered by this action (strip searches) violated various state and federal laws. Defendants deny all allegations of wrongdoing and deny any liability to plaintiffs or to any other class m em bers. The parties have agreed that, in order to avoid long and costly litigation, this controversy should be settled pursuant to the term s of the settlement as described in this Notice, subject to the approval of the Court.
C. Monetary Terms of Settlement
1. Payment to Representative Plaintiffs
Under the term s of the settlem ent, the nine (9) representative plaintiffs will receive a total of $360,000.00 to be allocated equally among them.
2. Payment to Settlement Class Members Who File Claims and Are Verified
Defendants have offered to pay as much as $54,000.00 under the terms of the settlement which will be referred to as the Class Fund to verified Settlem ent Class Mem bers (SCMs).
The parties have determ ined that it is probable that the num ber of SCMs is not less than six (6) nor m ore than nineteen (19). Verified SCMs will receive $1,800.00 each, provided there are no more than thirty (30) verified SCMs. If there are less than thirty (30) SCM, any rem aining Class Funds will be returned to the Defendants.
In the event there are m ore than thirty (30) verified SCMs, the settlement stipulation will be considered null and void, and the lawsuit will be placed back on the trial docket. However, the Defendants have the option of deciding within fourteen (14) calendar days from the Bar Date whether to pay any additional verified SCMs in excess of thirty (30), $1,800.00 each, and thereby salvage the Stipulation of Settlem ent.
3. Attorneys’ Fees, Expenses, and Costs
In addition to funds reserved for the paym ent of Class Claim s, Class Counsel will receive, subject to approval of the Court, a fee of $206,000.00 as attorneys’ fees, costs and expenses.
D. Strip Search Policy
Defendants have revised their strip search policies so that no person arrested on infractions or ordinance

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violations or m isdem eanors not involving violence, drugs, or weapons, without reasonable suspicion that a strip search would be productive of contraband or weapons, will be strip searched prior to first appearance, unless there is probable cause to do so and prior written authorization for the strip search has been obtained from a supervising officer. Defendants have further agreed to make no further substantive changes in the strip search policies for two years without prior approval of class counsel or order of the Court.

E. Unreasonable Detention

Defendants have agreed to hire additional staff, to purchase autom ated telephonic inform ation equipm ent, and to change their intake review policies to effectuate m ore prom pt releases of persons once ordered released by a judge or after they have posted bond. The Sheriff will report to the court once these procedures are in place. There will be no monetary settlement for any claim of unreasonable detention for the settlement class. In the event there are persons currently unknown to class counsel who were relying on this lawsuit and for whom the statute of limitations may have expired, and who would like to pursue any monetary claim they may have for being unreasonably detained after being ordered released or after posting bond, those persons may bring any such claim independent of this action without the fear of the Defendants defending on the basis of a violation of the statute of limitations provided such action is filed within 90 (Ninety) days of the Effective Date approving this Stipulation of Settlement.

F. Your Options as a Settlement Class Member

1.

Be Bound by, and Participate in the Settlement.

To qualify for a paym ent, you must tim ely mail in the enclosed Claim Form to Class Counsel. You have until May 4, 2007, to submit a Claim Form or to opt-out of the settlement. Mail your completed Claim Form to: Randall C. Berg, Jr., Esq., Florida Justice Institute, Inc., 100 S.E. Second Street, 4320 Bank of America Tower, M iami, Florida 33131-2309.

Rem em ber, if you do not tim ely subm it a Claim Form , you cannot get a paym ent. If you subm it a Claim Form , you will be bound by the settlem ent and receive money. If you do not submit a claim form but do not exclude yourself from the class (as explained in the next paragraph), you will be bound by the term s of the Settlem ent and dismissal entered in this case, but you will not receive any money.

By participating in this Settlem ent you will be waiving all your rights to all claim s up to and including August 30, 2005, related to strip searches at the John E. Polk Detention Facility, even those of which you are not presently aware.

2.

Exclude Yourself From the Class.

You do not have to take part in the Settlem ent or be a m em ber of the class. This is called “excluding” yourself. If you exclude yourself, you can not get a paym ent and you can not object to the Settlem ent. Any Court orders will not apply to you. To exclude yourself, you must sign a request for exclusion letter that states that you want to be excluded from Parilla, et al. v. Donald Eslinger, et. al., Case No. 6:05-cv-850-Orl-31KRS, and file it with the Clerk of Court, whose address is United States District Court, Middle District of Florida, Orlando Division, George C. Young U.S. Courthouse & Federal Building, 80 North Hughey Avenue, Orlando, Florida 32801. A copy of your exclusion letter to the Clerk of the Court must also be mailed and postmarked before May 5, 2007, to: Randall C. Berg, Jr., Esq, Florida Justice Institute, Inc., 100 S.E. Second Street, 4320 Bank of America Tower, M iami, Florida 33131-2309.

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If you do not follow these instructions, you will lose your right to exclude yourself. If you exclude yourself, you cannot get any money from the Settlem ent of this case and you cannot tell the Court you do not like the Settlem ent (which is called “objecting”). If you exclude yourself, you are no longer part of the class or the Settlement. But you can sue or be part of a different lawsuit against the Sheriff of Seminole County and Sem inole County about the claim s in this case.
G. Fairness Hearing and Process for Objections.
A fairness hearing will be held on May 24, 2007 at 1:00 p.m . at the United States District Court, Middle District of Florida, Orlando Division, George C. Young U.S. Courthouse & Federal Building, 80 North Hughey Avenue, Orlando, Florida 32801 in Courtroom 3. If you are a class member and do not exclude yourself, you can tell the Court you do not like the Settlem ent or some part of it at this hearing. This is called objecting to the Settlement. For example, you can say you do not think the Settlement is fair or adequate. The Court will consider your views.
To object, you must send a letter to the court that contains all of the following:
1. The nam e and title of the lawsuit, Parilla, et al. v. Donald Eslinger, et al., United States District Court, Middle District of Florida, Orlando Division, Case No. 6:05-cv-850-Orl-31KRS;
2. A statem ent of each objection you have and the facts that support the objections;
3. A description of any law or case supporting the objections;
4. A statement on whether or not you or your lawyer will ask to appear at the Fairness Hearing to talk about your objections, and, if so, how long you will need to present your objections; and
5. Copies of any docum ents you or your lawyer will present at the Fairness Hearing.
At the hearing on the proposed settlem ent, the Court m ay schedule further hearings without further notice to the class. The matters considered at such future hearings may include, but shall not be lim ited to, further consideration of the fairness and adequacy of the proposed settlement, the determ ination of the settlement of individual claim s filed by class mem bers, consideration of the request for attorneys’ fees and reim bursem ent of costs and expenses to class counsel, and the form and entry of the final judgment of dism issal in the event the proposed settlem ent is approved by the court.
Individually, or through counsel, any class mem ber has the right to object to the proposed Settlem ent as a whole, to the amount of attorneys’ fees and costs of Class Counsel, or to any portion of either. ANY SUCH OBJECTIONS MUST BE FILED IN W RITING ON OR BEFORE MAY 4, 2007, IN THE UNITED STATES DISTRICT COURT, MIDDLE DISTRICT OF FLORIDA, ORLANDO DIVISION, GEORGE C. YOUNG U.S. COURTHOUSE & FEDERAL BUILDING, 80 NORTH HUGHEY AVENUE, ORLANDO, FLORIDA 32801, ATTENTION: CLERK, RE: PARILLA, ET AL. V. DONALD ESLINGER, ET AL., CASE NO. 6:05-cv-850-Orl31KRS. If you wish to appear and present your objections at the fairness hearing, you must also subm it a Notice of Intention to Appear that identifies the case, contains your nam e and address, and explains the reason the appearance is desired. The Notice of Intention to Appear and any objections must be filed with the Court on or before May 4, 2007. You m ay be represented by your own attorney. If you are to be represented by an attorney at the hearing, his or her name, address and telephone num ber must be included in the Notice of Intention to Appear as well.
A copy of the Statement of Objection and/or Notice of Intention to Appear must also be mailed to: Randall C. Berg, Jr., Esq., Florida Justice Institute, Inc., 4320 Bank of America Tower, 100 S.E. Second Street, Miami,

NOTICE OF PROPOSED SETTLEMENT OF CLASS ACTION STRIP SEARCH CASE

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FL 33131-2309; Thomas W . Poulton, Esq., DeBevoise & Poulton, P.A., Lakeview Office Park, Suite 1010, 1035 S. Sem oran Boulevard, W inter Park, Florida 32792 and Henry W . Jewett, II, Esq., Rissm an, W eisberg, Barrett, Hurt, Donohue & McLain, P.A., 201 E. Pine Street, 15th Floor, P.O. Box 4940, Orlando, Florida 328024940.
H. How to Obtain Further Information
For additional inform ation regarding the Settlem ent and Claim Form , or a copy of the Settlem ent Agreem ent, Claim Form or Class Counsel’s Application for Attorney’s Fees, you or your counsel should contact: Randall C. Berg, Jr., Esq., Florida Justice Institute, Inc., 4320 Bank of America Tower, 100 S.E. Second Street, Miami, FL 33131-2309. You m ay also obtain detailed inform ation about the case by examining the Court file located in the office of the Clerk of the United States District Court, George C. Young U.S. Courthouse & Federal Building, 80 North Hughey Avenue, Orlando, Florida 32801.
I. Court Approval.
Although the Court has reviewed the proposed Settlement, no decision has been, or will be, reached by the Court, until the Fairness Hearing. This Notice does not indicate that the Court has approved the Settlem ent.
Clerk United States District Court

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CLASS ACTION CLAIM FORM

EXHIBIT B
ORDER FOR PRELIMINARY APPROVAL OF SETTLEMENT OF CLASS ACTION
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CLASS ACTION CLAIM FORM
JOHN E. POLK CORRECTIONAL FACILITY JAIL STRIP SEARCH LAW SUIT PARILLA, et al. v. ESLINGER, et al.
UNITED STATES DISTRICT COURT, MIDDLE DISTRICT OF FLORIDA ORLANDO DIVISION, CASE NO. 6:05-cv-850-Orl-31KRS
FILL OUT THIS FORM IF:
YOU WERE ARRESTED ON MUNICIPAL ORDINANCE, TRAFFIC INFRACTION, OR MISDEMEANOR CHARGES NOT INVOLVING VIOLENCE, DRUGS OR WEAPONS WERE TAKEN TO THE SEMINOLE COUNTY JAIL BEFORE AN APPEARANCE BEFORE A JUDGE AND UPON ENTRY INTO THE JAIL WERE STRIP SEARCHED, EXCLUDING ANY PERSON SEARCHED ON “PROBABLE CAUSE” REPORTED IN WRITING ON AN INCIDENT FORM.

You must complete and submit this claim form no later than May 4, 2007, to qualify for $1,800.00 in payment from settlement of this class action strip search case against the Sheriff of Seminole County and others. If you do not return a completed claim form by the due date you will receive no money from the settlement.

Please enter your correct name and address below if incorrect.

(First name)

(Middle name)

(Last Name)

(Address)

(City)

(State)

(Zip Code)

Please provide the following information:

Phone Number:

FL. Driver’s License No.:

Social Security Number:

Date of Birth:

Answer each of the following questions by placing a check in the “yes” or “no” box at the end of the question.

Prior to appearing before a judge, were you arrested and strip searched at the John E. Polk Correctional Facility at any time between June 9, 2001 and August 30, 2005 ?

Yes No


If you answered “no,” you need not do any thing further as you are not a class member and are not entitled to payment. You may ignore this notice and claims form.

If you answered “yes,” do you want to participate in payment to the class members?



CLASS ACTION CLAIM FORM

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CAUTION – THESE ANSWERS ARE GIVEN UNDER PENALTY OF PERJURY. CRIMINAL FRAUD WILL RESULT IN DENIAL OF YOUR CLAIM.

I DECLARE UNDER PENALTY OF PERJURY UNDER THE LAWS OF THE STATE OF FLORIDA THAT THE ABOVE IS TRUE AND CORRECT.

DATED:

SIGNATURE:

The information given here is private and will remain confidential, subject to the provisions of Florida’s Public Records Act, which may require the disclosure of information provided. If you have any questions about this lawsuit, write to Class Counsel: Randall C. Berg, Jr., Esq., Florida Justice Institute, Inc., 100 S.E. Second Street, 4320 Bank of America Tower, Miami 33131-2309, telephone 305-358-2081.

THIS CLAIM FORM MUST BE SIGNED AND RETURNED WITH A POSTMARK NO LATER THAN MAY 4, 2007

If you would like your settlement check mailed to an address other than that on the first page of the Claim Form, provide it here: (Address if different) to which settlement check should be mailed:

Use the return envelope (or any other envelope) and mail the completed claim form to:
Randall C. Berg, Jr., Esq. Florida Justice Institute, Inc. 100 S.E. Second Street 4320 Bank of America Tower Miami 33131-2309

CLASS ACTION CLAIM FORM

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 Case 6:05-cv-00850-GAP-KRS Document 89 Filed 05/30/2007 Page 1 of 5

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA ORLANDO DIVISION

CASE NO. 6:05-cv-850-Orl-31KRS

RONALD M. PARILLA, ALDA RUGG,

)

BILLY CATES, THERESA DECLUE,

)

AILEEN NUNEZ, DAVID W. ROBERTS, KIM

)

LEMISTER, and FRANTARSHIA STAFFORD,

)

individually and on behalf of a Class of all

)

others similarly situated,

)

)

Plaintiffs,

)

)

v.

)

)

DONALD ESLINGER, individually and

)

in his official capacity as Sheriff of Seminole

)

County, MICHAEL TIDWELL, individuallyand

)

in his official capacity as Director of the John E.

)

Polk Correctional Facility, DAVID DIGGS, in his

)

individual capacity, and SEMINOLE COUNTY,

)

)

)

Defendants.

)

)

)

AMENDED1 AGREED ORDER AND JUDGMENT OF DISMISSAL

This matter came on for a Fairness Hearing on May 24, 2007, as set forth in the Amended Notice of Hearing entered on May 2, 2007. Plaintiffs’ class was represented by Class Counsel Randall C. Berg, Jr., of the Florida Justice Institute, Inc., and J. Larry Hanks of Larry Hanks, P.A.; Defendants Eslinger, Diggs, and Tidwell were represented by Thomas W. Poulton and D. Andrew DeBevoise of DeBevoise and Poulton, P.A., Defendant Seminole County was represented by David T. White, III, of Rissman, Barrett, Hurt, Donohue, & McLain, P.A.
After considering the submissions of the parties, including the Joint Motion for Preliminary

1The Court enters this amended order and judgment to correct minor typographical errors and the name of Verified Settlement Class Member Micah Stephens, which had been misspelled in the order and judgment entered May 29, 2007 (Doc. 86).

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Approval of Provisional Settlement Class and Settlement of Class Action, together with the extensive exhibits attached thereto and the Arguments of Counsel, it is hereby ORDERED and ADJUDGED AS FOLLOWS:
1. On January 25, 2007 this court entered its Order preliminarily approving settlement of the above captioned class action. Since the entry of the Court’s preliminary Order, in accordance with the Stipulation of Settlement as proved to the satisfaction of the Court, the requisite notice of Settlement, with opt-out and objection information, was published in the Orlando Sentinel (February 12, 2007 and February 19, 2007) and on the web at www.FloridaJusticeInstitute.com with Questions and Answers, the Stipulation of Settlement, Class Notice and Claims Forms; and notice of the Settlement and approved claim forms were posted by First Class U.S. Mail to the last known address of each person in groups one and two of the settlement class. Both the published notice and the mailed notice specified that claim forms had to be delivered to Plaintiffs’ Counsel at the Florida Justice Institute, post marked not later than May 4, 2007.
2. Both the published and mailed notices specified that any person who chose to object to the Settlement, either personally or through counsel, and desired to appear at the Fairness Hearing was required to submit a Notice of Intention to Appear, together with written arguments in support of any objection, by May 4, 2007. No written objections were received by the Court. Furthermore, although opportunity was given by the court to voice objections at the time of the Fairness Hearing, no objections were stated by any member of the class or representative of any such class member. The notice also specified that any person who chose to exclude themselves from the class may do so by signing a request for exclusion that must be filed with the Clerk of the Court by May 5, 2007. Requests for exclusion were received by the clerk from BONNIE RETALIC, A.K.A. BONNIE KOZIMOR (DE 77), ASIER MURUA (DE 78), and DR. LINDA TAVERNIER-ALMADA (DE 79).
3. The Court is satisfied from all of the memoranda of law, declarations, and exhibits submitted to the Court, that the Stipulation of Settlement is, and the Court now finds, is fair and
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finally approves it as such. The Stipulation of Settlement is incorporated herein by this reference as if set out in full.
4. The members of the settlement class include the following: a. Representative Class Members (RCMs): RONALD PARILLA, ALDA RUGG, THE ESTATE OF BILLY CATES, THERESA DECLUE, AILEEN NUNEZ, DAVID W. ROBERTS, KIM LEMISTER, SHANE BRADLEY, and FRANTARSHIA STAFFORD. b. Verified Settlement Class Members (VSCMs) include: DARREN GREEN, BRIAN STAMEN, MICAH STEPHENS, and ROBERT BROCK.
5. Claim forms were timely submitted by potential class members, reviewed, and were found to be unverified claims. Unverified Class Members (UVMs) include: DAVID MORTON, WILLIE WRIGHT, JUDY HAGNER, RESHARD NOBLE, NICHOLAS BENNETTO, and JOHN WARREN.
6. Claim forms were untimely submitted by potential class members and were excluded from the verification process. The time-barred claims were submitted by PHILLIP SCOTT HALL and ELIZABETH SCOTT.
7. On May 24, 2007, JUDY HAGNER did appear at the Fairness Hearing and was heard by the Court. After a review of her claim form, jail records and correspondence, it was determined that Ms. HAGNER was not a verified class member. Ms. HAGNER was informed as to the Court’s reasoning for not allowing her claim, and what remedies she still has if she wishes to file a separate action.
8. Persons who previously commenced civil litigation challenging the legality of any strip search at the John E. Polk Correctional Facility during the class period and have prevailed, settled or had their complaints denied on their merits, and persons who have given timely notice of their election to be excluded from the settlement class are not included in the settlement class.
9. With the exception of any individuals who submitted timely requests to the Court to opt-
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out of the Stipulation of Settlement, all claims and complaints of the named representative plaintiffs, together with all persons in the settlement class, are now dismissed with prejudice as to all of the Related Persons defined to include the defendants and their predecessors, successors, and/or assigns, together with past, present and future officials, employees, representatives, attorneys and/or agents of the John E. Polk Correctional Facility. Claims and complaints of such persons are now forever barred, and all settlement class members are enjoined from asserting against any Released Person or persons any and all claims which the settlement class members had, have, or may have in the future arising out of the facts alleged in the Amended Complaint.
10. Each Released Person is released from the claims which any settlement class member has had or may in the future have against any such Released Person arising out of the facts in the Complaint.
11. This Court explicitly finds that the Stipulation of Settlement, which is now made final by this Judgment, was entered into in good faith, is reasonable, fair and adequate, and is in the best interest of the Class. The Court expressly approves payment to Class Counsel the Law Office of Larry Hanks, P.A. and the Florida Justice Institute, Inc., of the amount of Two Hundred and Six Thousand Dollars ( $206,000) as and for attorneys’ fees for the representation of the settlement class members herein, to be paid as provided in the Stipulation of Settlement.
12. The Court further explicitly approves payment from the payment fund of a total of Three Hundred and Sixty Thousand Dollars ($360,000) to be divided among the Representative Class Members (RCMs), as specified in the Stipulation of Settlement. The Court finds the amount is fair and adequate in view of the damages suffered by the representative plaintiffs and the efforts they expended in litigating this case in the several years since the underlying events occurred which gave rise to the filing of the Complaint.
13. Pursuant to the Stipulation of Settlement, defendants have allocated up to Fifty-Four Thousand Dollars ($54,000) to pay verified Settlement Class Members (SCMs). Claims have been submitted to and, in accordance with the claims processing procedure specified in the Stipulation
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Case 6:05-cv-00850-GAP-KRS Document 89 Filed 05/30/2007 Page 5 of 5 of Settlement, will be paid eighteen hundred dollars each ($1, 800.00 each) to the four (4) VSCM set forth above in ¶ 4.b. as soon as practicable following the effective date of this Judgment, meaning the date it is entered and becomes final. The Judgment will be deemed final only upon the expiration of the time to appeal or, if a Notice of Appeal is filed, upon exhaustion of all appeals and petitions for a Writ of Certiorari.
14. The Court reserves continuing and exclusive jurisdiction over the parties in this action, including defendants and all settlement class members, to administer, supervise, and construe and enforce the settlement in accordance with the terms for the mutual benefit of all of the parties.
15. It is further ordered, adjudged and decreed that the Complaint in this action be dismissed with prejudice and that Judgment be and the same hereby is entered pursuant to the terms of this Order.
DONE AND ORDERED in chambers in Orlando, Florida, Orange County this May 30, 2007.
Copies to all counsel of record
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 Case 6:05-cv-00850-GAP-KRS Document 1 Filed 06/09/2005 Page 1 of 19
UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA ORLANDO DIVISION CASE NO.
RONALD M. PARILLA, ALDA RUGG, BILLY CATES, THERESA DECLUE, AILEEN NUNEZ, DAVID W. ROBERTS, and FRANTARSHIA STAFFORD, individually and on behalf of a Class of all others similarly situated,
Plaintiffs,
DONALD ESLINGER, individually and in his official capacity as Sheriff of Seminole County, MICHAEL TIDWELL, individually and in his official capacity as Director of the John E. Polk Correctional Facility, DAVID DIGGS, in his individual capacity, and SEMINOLE COUNTY,
Defendants.
CLASS ACTION COMPLAINT and
JURY TRIAL DEMAND
Plaintiffs, individually, and as representatives of a class of persons similarly situated, sue Defendants and allege:
INTRODUCTION
1. All persons who are booked into the John E. Polk Correctional Facility (the Seminole County Jail) upon remand by the court are routinely subjected to dehumanizing strip or visual body

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cavity searches regardless of the charge, regardless of the arrestee’s ability to make bond, and in the absence of probable cause or reasonable suspicion to believe that the arrestee is in possession of a weapon, drugs, or any other form of contraband.
2. Unless enjoined and restricted, upon information and belief, Defendants will maintain their practice of illegally subjecting all persons booked into the John E. Polk Correctional Facility to illegal strip or visual body cavity searches.
JURISDICTION 3. This action is brought pursuant to 42 U.S.C. § 1983 and § 1988, and the Fourth and Fourteenth Amendments to the United States Constitution. Jurisdiction is founded upon 28 U.S.C. § 1331 and § 1341(3) and (4) and the aforementioned statutory and constitutional provisions.
PARTIES 4. Plaintiff, RONALD PARILLA is, and at all times material hereto was, a resident of the city of Oviedo, Florida. Plaintiff, RONALD PARILLA is, and at all times material hereto was, a resident of the city of Oviedo, Florida. 5. Plaintiff ALDA RUGG is, and at all times material hereto, was a resident of Oviedo, Florida. 6. Plaintiff BILLY CATES is, and at all times material hereto was, a resident of Altamonte Springs, Florida. 7. Plaintiff THERESA DECLUE is, and at all times material hereto was, a resident of Heathrow, Florida. 8. PlaintiffAILEEN NUNEZ is, and at all times material hereto was, a resident of Orlando, Florida.
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9. Plaintiff, DAVID ROBERTS is, and at all times material hereto was, a resident of the city of Osteen, Florida.
10. PlaintiffFRANTARSHIA STAFFORD is, and at all times material hereto, was a resident of Orlando, Florida.
11. Plaintiffs, Parilla, Rugg, Cates, Declue, Nunez, Roberts, and Stafford, and all those similarly situated, were arrested in open court and remanded to the jail where, as a matter of policy, practice and custom, they were automatically subjected to a strip or visual body cavity search without regard to their charges, without reasonable suspicion or probable cause to believe they were concealing a weapon, a controlled substance, or any other form of contraband, and without prior written supervisory approval.
12. Defendant, DONALD F. ESLINGER, is, and at all times material to this action was, the Sheriff of Seminole County. As Sheriff, he is responsible for the operation of the John E. Polk Correctional Facility (hereinafter the "j ail"), and is responsible for the care, custody and control of those individuals committed to the jail, and for making, implementing, allowing, authorizing, or acquiescing in the policies, practices, and customs challenged herein. He is sued in his individual and official capacity.
13. Defendant MICHAEL TIDWELL is, and at all times material to this action was, the individual in charge of the day to day operations of the jail commencing on approximately January 18, 2005. As such, he is responsible for the policies, practices and customs herein challenged. He is sued in his individual capacity.
14. Defendant DAVID DIGGS was the individual in charge of the day to day operations of the jail until approximately December 31, 2004. As such, he was responsible for the policies,
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practices and customs herein challenged until approximately December 31,2004. He is sued in his individual capacity.
15. Defendant SEMINOLE COUNTY is, and at all material times to this action was, a political division of the state of Florida. Pursuant to state law, it has delegated its responsibility for the operation of a county jail to the Defendant, Sheriff Eslinger.
16. At all material times mentioned herein, each of the Defendants was acting under the color of state law and the conduct of each constitutes state action.
FACTS A. RONALD M. PARILLA 17. On December 3, 2004, Plaintiff Parilla went to the Seminole County Courthouse in Sanford, Florida for a non-moving traffic citation for an improperly registered company car. After passing through the metal detector he asked Seminole County Deputy SheriffCarraday for directions to courtroom F as noted on his ticket. Carraday told Plaintiff Parilla that there was no courtroom F and directed him to courtroom 1 B, pointing towards the courtroom as they spoke. In the courtroom, a court employee told Plaintiff Parilla to sit down until his name was called. 18. Approximately two hours later the judge in courtroom 1B suggested that there were too many people in his courtroom and called the names of people still on his docket. The people not named, which included Parilla, were told by the judge to go to courtroom 1A next door. Shortly after Plaintiff Parilla arrived at courtroom 1A, the room began filling with Deputy Sheriffs. Then, one of the Deputies announced to the crowd that the judge in courtroom 1A, Judge John R. Sloop, had signed warrants for their arrests for failure to appear. 19. Plaintiff Parilla and the others were taken into custody, handcuffed, and moved to
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another location in the courthouse where leg-irons and waist chains were applied. 20. At the courthouse, Plaintiff’s belt, shoelaces and personal belongings were taken, he was
subjected to a pat down search, and then placed in a van and transported to the John E. Polk Correctional Facility.
21. At the jail, PlaintiffParilla was subjected to a strip or visual body cavity search. He was required to remove all his clothing, lift his private parts and spread his rectum.
22. At the conclusion of the search, Plaintiff Parilla was allowed to dress in his civilian clothing.
23. An Order to release Plaintiff Parilla from custody was filed by the clerk of the circuit court at 2:22 pm and faxed to the jail at 3:48 pm. Despite this Order, jail staff booked Parilla and placed him in custody. PlaintiffParilla was not released from custody until approximately 8:40 pm.
24. Prior to December 3, 2004, Plaintiff Parilla was never incarcerated. 25. Plaintiff Parilla is a 56 year old married Mercedes Benz salesman. He was humiliated and embarrassed by being subjected to the aforementioned strip and visual body cavity search and by being required to stand, naked, for any passerby to observe. He suffered mental and emotional distress as a direct and proximate result of Defendants’ actions in depriving him of rights secured to him by the Fourth and Fourteenth Amendments to the United States Constitution.
B. ALDA RUGG 26. On December 3, 2004, Plaintiff Rugg appeared at the Seminole County Courthouse in response to a ticket for failure to display a tag in the vehicle she was driving. She was sent to courtroom 1B and later sent to courtroom 1A where she was arrested in the courtroom for "failure to appear" in court.
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27. After her arrest, Plaintiff Rugg was placed in handcuffs, bellychains and leg irons and transported to the jail. Immediately after arrival at the jail, Plaintiff Rugg, and the other women arrested in the courtroom, were taken to a hallway were they were made to open their mouth and lift their tongues. Then Plaintiff Rugg was taken to a room where an officer told her to remove all her clothing. She was made to squat and cough, lift her breasts and run her fingers through her hair.
28. The strip or visual body cavity search made PlaintiffRugg feel extremely uncomfortable and dehumanized.
29. Despite a release order signed at 2:30 pm, Plaintiff Rugg was kept in custody inside a holding cell until about 9:00 pm.
30. Prior to December 3, 2004, Plaintiff Rugg had never been arrested or incarcerated. 31. PlaintiffRugg is a housewife with two children, one of whom is disabled. Because of her arrest, she was unable to care for her disabled child. She was humiliated, embarrassed and suffered mental and emotional distress as a result of being subjected to a strip or visual body cavity search and as a result of being held in custody for nearly an entire day for failure to display car tags.
C. BILLY CATES 32. On December 2, 2004, Plaintiff Cates was five minutes late to court, having originally gone to the wrong courthouse. When he arrived at the Seminole County Courthouse in Sanford he was arrested on a failure to appear warrant. 33. PlaintiffCates was taken into custody, handcuffed, and moved to another location in the courthouse where leg-irons and waist chains were applied. 34. At the courthouse, Plaintiff’s belt, shoelaces and personal belongings were taken, he was subjected to a pat down search, and then placed in a van and transported to the John E. Polk
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Correctional Facility. 35. At the jail, PlaintiffCates was subjected to a strip or visual body cavity search. He was
required to remove all his clothing, lift his private parts and spread his rectum. 36. Plaintiff Cates is a 25 year, self-employed floor installer. He was humiliated and
embarrassed by being subjected to the aforementioned strip and visual body cavity search and by being required to stand, naked, for any passerby to observe. He suffered mental and emotional distress as a direct and proximate result of Defendants’ actions in depriving him of rights secured to him by the Fourth and Fourteenth Amendments to the United States Constitution.
D. THERESA DECLUE 37. On December 3, 2004, Plaintiff Declue went to the Seminole County Courthouse in Sanford, Florida for an infraction charging her with driving with a suspended license. Her traffic ticket told her to report to courtroom 1B. In the courtroom, a court employee told Plaintiff Declue to sit down until her name was called. 38. Approximately two hours later the judge in courtroom 1B suggested that there were too many people in his courtroom and called the names of people still on his docket. The eleven people not named, which included Plaintiff Declue, were told by the judge to go to courtroom 1A next door. Shortly after Plaintiff Declue arrived at courtroom 1A, the room began filling with Deputy Sheriffs. Then, one of the Deputies announced to the crowd that the judge in courtroom 1A, Judge John R. Sloop, had signed warrants for their arrests for failure to appear. 39. Plaintiff Declue and the others were taken into custody, handcuffed, and moved to another location in the courthouse where leg-irons and waist chains were applied. 40. At the courthouse, Plaintiff Declue’s personal belongings were taken. She was then
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subjected to a pat down search and placed in a van and transported to the John E. Polk Correctional

Facility.

41. At the jail, Plaintiff Declue was subjected to a strip or visual body cavity search. She

was required to remove all her clothing, squat and spread her rectum.

42. At the conclusion of the search, PlaintiffDeclue was required to dress in a jail uniform.

43. An Order to release Plaintiff Declue from custody was filed by the clerk of the circuit

court at 2:22 pm and faxed to the jail at 3:48 pm. Despite this Order, jail staff continued the booking

process. Plaintiff Declue was not released from custody until approximately 9:00 pm.

44. Prior to December 3, 2004, Plaintiff Declue had never been in a jail.

45. Plaintiff Declue is a 29 year old Administrative Assistant for a major employer in the

Orlando area. She was humiliated and embarrassed by being subjected to the aforementioned strip

and visual body cavity search and by being required to stand, naked, for any passerby to observe.

She suffered mental and emotional distress as a direct and proximate result of Defendants’ actions

in depriving her of rights secured to her by the Fourth and Fourteenth Amendments to the United

States Constitution.

E. AILEEN NUNEZ

46. On December 3, 2004, Plaintiff Nunez went to the Seminole County Courthouse in

Sanford, Florida for a non-moving traffic violation. She was told to report to courtroom lB. In the

courtroom, a court employee told PlaintiffNunez to sit down until her name was called.

47. Approximately two hours later the judge in courtroom 1B suggested that there were too

many people in his courtroom and called the names of people still on his docket. The eleven people

not named, which included PlaintiffNunez, were told by the judge to go to courtroom 1A next door.

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Shortly after PlaintiffNunez arrived at courtroom 1 A, the room began filling with Deputy Sheriffs. Then, one of the Deputies announced to the crowd that the judge in courtroom 1A, Judge John R. Sloop, had signed warrants for their arrests for failure to appear.
48. At the Courthouse, PlaintiffNunez was placed in restraints and then taken to the jail. 49. Upon arrival at the Jail, PlaintiffNtmez was subjected to a strip or visual body cavity search. She was forced to squat and cough, and the officers ran their fingers through her hair. The officers took her bra with under wire. After eight hours in custody, she was released. 50. PlaintiffNunez is a 25 year old bank employee. She was humiliated and embarrassed by being subjected to the aforementioned strip and visual body cavity search and by being required to stand, naked, for any passerby to observe. She suffered mental and emotional distress as a direct and proximate result of Defendants’ actions in depriving her of rights secured to her by the Fourth and Fourteenth Amendments to the United States Constitution.
F. DAVID W. ROBERTS 51. On December 3, 2004, Plaintiff Roberts went to the Seminole County Courthouse in Sanford, Florida, for a non-moving traffic violation. He went to courtroom 1B, where a court employee told Plaintiff Roberts to sit down until his name was called. 52. Approximately two hours later the judge in courtroom 1B suggested that there were too many people in his courtroom and called the names of people still on his docket. The people not named, which included Plaintiff Roberts, were told by the judge to go to courtroom 1A next door. Shortly after PlaintiffRoberts arrived at courtroom 1A, the room began filling with Deputy Sheriffs. Then, one of the Deputies announced to the crowd that the judge in courtroom 1A, Judge John R. Sloop, had signed warrants for their arrests for failure to appear.
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53. Plaintiff Roberts and the others were taken into custody, handcuffed, and moved to another location in the courthouse where leg-irons and waist chains were applied.
54. At the courthouse, Plaintiff’s belt, shoelaces and personal belongings were taken, he was subjected to a pat down search, and then placed in a van and transported to the John E. Polk Correctional Facility.
55. At the jail, Plaintiff Roberts was subjected to a strip or visual body cavity search. 56. Plaintiff Roberts is a 39 year old employee of a local construction firm. He was humiliated and embarrassed by being subjected to the aforementioned strip and visual body cavity search and by being required to stand, naked, for any passerby to observe. He suffered mental and emotional distress as a direct and proximate result of Defendants’ actions in depriving him of rights secured to him by the Fourth and Fourteenth Amendments to the United States Constitution.
G. FRANTARSHIA STAFFORD 57. On December 3, 2004, Stafford appeared at the Seminole County Courthouse in response to traffic tickets for no insurance and no registration. She was initially directed to the wrong courtroom and then arrested for "failure to appear" after being directed to courtroom 1B at the Seminole County Courthouse. At the Courthouse, she was handcuffed, forced to take off her shoes and put on jailhouse slippers, and put in belly chains. 58. Upon arrival at the Jail, Plaintiff Stafford was subjected to a strip or visual body cavity search. She was forced to squat, bend over, and cough, and the officers ran their fingers through her hair. The officers took her bra with under wire. After eight hours in custody, she was released. 59. Although arrested before, Plaintiff Stafford was never subjected to a strip search prior to December 3, 2004.
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60. Plaintiff Stafford was humiliated and embarrassed by being subjected to the aforementioned strip and visual body cavity search and by being required to stand, naked, for any passerby to observe. She suffered mental and emotional distress as a direct and proximate result of Defendants’ actions in depriving her of rights secured to her by the Fourth and Fourteenth Amendments to the United States Constitution.
tt. ALL PLAINTIFFS 61. The strip and visual body cavity searches to which Plaintiffs and all those similarly situated are subjected are short-lived legal violations that are over before they can be challenged in court because all plaintiffs are released prior to or at first appearance (within the first 48 hours of incarceration), and are legal violations which are an on-going policy of the Defendants and for which monetary damages after-the-fact is not suitable long-term relief. There is a reasonable likelihood that Defendants’ policy and practice will continue and some plaintiff class members will most certainly be re-arrested in Seminole County, Florida. Therefore the illegal policy is capable of repetition but evading judicial review if declaratory and injunctive relief is not provided. 62. As a result of being subjected to the strip and visual body cavity searches complained of herein, each of the Plaintiffs suffered physical, mental and emotional distress, invasion of privacy, and the violation of due process of law and federal constitutional rights, and is entitled to recover damages according to proof.
CLASS ACTION ALLEGATIONS 63. The named Plaintiffs bring this suit as a class action, pursuant to the provisions of Rule 23(b)(2) & (3) of the Federal Rules of Civil Procedure for injunctive and declaratory relief, and monetary damages on behalf of a class of all persons similarly situated.
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64. The class of Plaintiffsconsists of all individuals who, during the period beginning four (4) years before the date this action is filed, were taken to the jail and who were subjected by Defendants to pre-first appearance strip and/or visual body cavity searches at the John E. Polk Correctional Facility without Defendants having, and recording in writing, a particularized reasonable suspicion that the searches would be productive of contraband or weapons.
65. The Plaintiff class consists of an unknown but large number of individuals, numbering in the thousands, so that joinder of all members is impracticable.
66. Plaintiffs are informed and believe, and thereupon allege, that Defendants have the ability to identify all such similarly situated Plaintiffs who were subjected to strip and/or visual body cavity searches prior to first appearance without Defendants first having, and recording, a particularized reasonable suspicion that the searches would be productive of contraband or weapons.
67. There are questions of fact common to the class including, but not limited to: (1) where Defendants routinely subject all arrested persons to strip or visual body cavity searches prior to first appearance if they intend such persons to be housed in the John E. Polk Correctional Facility; (2) whether persons are subjected to strip or visual body cavity searches prior to first appearance without there being any particularized reasonable suspicion, based on specific or articulable facts, to believe any particular arrestee has concealed drugs, weapons, and/or contraband in bodily cavities which could be detected by means of a strip or visual body cavity search; (3) whether the strip or visual body cavity searches are conducted in an area of privacy so that the searches cannot be observed by persons not participating in the searches, or whether the strip or visual body cavity search are conducted in areas where they may be observed by persons not participating in the searches; and (4) whether the strip or visual body cavity searches are reasonably related to Defendants’ penalogical
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interest to maintain the security of the jail whether or not there are less intrusive methods for protecting any such interest.
68. There are questions of law common to the class, including, but not limited to: (1) whether Defendants may perform strip or visual body cavity searches on persons prior to their first appearance without particularized reasonable suspicion, based on specific or articulable facts, to believe any particular arrestee has concealed drugs, weapons and/or contraband, which would likely be discovered by a strip or visual body cavity search; (2) whether Defendants may perform strip or visual body cavity searches on persons without first reasonably relating the use of the strip search to Defendants’ penalogical interest to maintain the security of the jail and determining if there is a less intrusive method to protect that interest; (3) whether strip or visual body cavity searches may be conducted in areas where the search can be observed by people not participating in the search without violating Plaintiff’s federal constitutional rights; and (4) whether or not Defendants’ strip search policy and procedure is in accordance with the federal constitution.
69. The claims of the representative Plaintiffs are typical of the class. Plaintiffs were searched, prior to first appearance, without reasonable suspicion that a strip or visual body cavity search would produce drugs, weapons or contraband (and without the facts supporting any such suspicion being articulated in a supervisor approved document). Representative Plaintiffs have the same interests and suffered the same type of injuries as all of the other class members. Plaintiffs’ claims arose because of Defendants’ policy, practice, and custom of subjecting arrestees to strip and visual body cavity searches before first appearance without having, and recording in writing, a reasonable suspicion that the search would be productive of contraband or weapons. Plaintiffs’ claims are based upon the same legal theories as the claims of the class members. Each class
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member suffered actual damages as a result of being subjected to a visual body cavity search. The actual damages suffered by representative Plaintiffs are similar in type and amount to the actual damages suffered by each class member.
70. The representative Plaintiffs will fairly and adequately protect the class interest. Plaintiffs’ interests are consistent with and not antagonistic to the interests of the class. They have a strong personal interest in the outcome of this action and have no conflicts of interest with members of the Plaintiff class. The named Plaintiffs were all subjected to strip and visual body cavity searches without legal justification. As long as the policies, practices and customs of the Defendants continue to permit dehumanizing invasive strip and visual body cavity searches, the named Plaintiffs, and the class they represent, are and will remain at high risk of being subjected to searches in clear violation of established constitutional rights.
71. The named Plaintiffs are represented by experienced counsel who specialize in civil rights litigation.
72. The prosecutions of separate actions by individual members of the class would create a risk that inconsistent or varying adjudications with respect to individual members of the class would establish incompatible standards of conduct for the parties opposing the class.
73. The prosecutions of separate actions by individual members of the class would create a risk of inconsistent adjudications with respect to individual members of the class which would, as a practical matter, substantially impair or impede the ability of the other members of the class to protect their interests.
74. The Defendants have acted on grounds generally applicable to the class, thereby making appropriate the final injunctive or declaratory relief with respect to the class as a whole.
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75. A class action is superior to all other available methods for the fair and equitable adjudication of the controversy between the parties. Plaintiffs are informed and believe, and thereupon allege, that the interests of members of the class in individually controlling the prosecution of a separate action is low in that most class members would be unable individually to prosecute any action at all. Plaintiffs are informed and believe, and thereupon allege, that most members of the class will not be able to find counsel to represent them. Plaintiffs are informed and believe, and thereupon allege, that it is desirable to concentrate all litigation in one forum because all of the claims arise in the same location. It will promote judicial efficiency to resolve the common questions of law and fact in one form, rather than in multiple courts.
CAUSE OF ACTION 76. The strip and visual body cavity searches to which Plaintiffs and all those similarly situated were subjected were performed pursuant to policies, practices, and customs of named Defendants. 77. The strip and visual body cavity searches to which Plaintiffs and all those similarly situated were subjected are short-lived legal violations that are over before they can be challenged in court because all plaintiffs are released prior to or at first appearance (within the first 48 hours of incarceration), are legal violations which are an on-going policy of the Defendants and for which monetary damages after-the-fact is not a suitable long-term solution, there is a reasonable likelihood that the policy and practice will continue and plaintiff class members will be re-arrested, and therefore the illegal policy is capable of repetition but evading review if declaratory and injunctive relief is not provided. 78. The searches complained of herein were performed without regard to the nature of the
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alleged offenses for which Plaintiffs had been arrested, without regard to whether or not Plaintiffs were eligible for prompt release and without regard to whether or not Plaintiffs were eligible for and/or were released on their own recognizance. Furthermore, the searches complained of herein were performed without Defendants having a reasonable belief that the Plaintiffs so searched possessed weapons or contraband or that there existed facts supporting a particularized reasonable suspicion that the searches would produce contraband, and those facts being articulated and recorded in a supervisor-approved document.
79. Plaintiffs are informed and believe, and thereupon allege, that Defendants routinely follow their policy, practice, and custom of requiring pre-first appearance detainees to strip naked and to submit to visual body cavity searches without having, and recording in writing, a particularized reasonable suspicion that the searches will be productive of contraband or weapons.
80. Strip and body cavity searches, as alleged in this Complaint, are done as a matter of routine, and are permitted and encouraged, in accordance with the established policies, practices and customs of the Defendants.
81. In searching the Plaintiffs as alleged, staff at the jail act or have acted in accordance with the policy, practice and customs authorized or permitted by Defendants Diggs and Tidwell.
82. The policy, practice and custom of strip or visual body cavity searching all arrestees, as authorized or permitted by Defendants Tidwell and Diggs is attributable to Defendant Eslinger who, if he did not specifically authorize and permit the strip and visual body cavity searches as herein alleged, allowed Defendants Tidwell and Diggs to create and implement the policy, practice and customs employed at the Jail.
83. The policy, practice and custom of strip or visual body cavity searching all arrestees, as
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authorized or permitted by Defendants Tidwell, Diggs, and Eslinger, is attributable to Seminole County, which has delegated the creation of policy, practice and custom at the Jail to Defendant Eslinger.
84. Defendants Tidwell, Diggs, and Eslinger facilitate, encourage, and acquiesce in the behavior of their subordinates, who routinely conduct strip and visual body cavity searches, as alleged in this Complaint.
85. Individual named Defendants herein are personally responsible for the promulgation and continuation of the strip search policy, practice, and custom pursuant to which Plaintiffs herein and all those similarly situated, were subjected to the searches complained of herein.
86. Defendants’ policies, practices, and customs regarding the strip and visual body cavity searches complained of herein violated Plaintiffs’ rights under the Fourth Amendment of the U.S. Constitution to be free from unreasonable searches and seizures, and violated said Plaintiffs’ rights to due process and privacy under the Fourteenth Amendment, and directly and proximately damaged Plaintiffs as herein alleged, entitling Plaintiffs to recover damages for said constitutional violation pursuant to 42 U.S.C. § 1983.
Wherefore, Plaintiffs pray for relief as hereunder appears. PRAYER FOR RELIEF
A. For declaratory and injunctive relief declaring illegal and enjoining, preliminarily and permanently, Defendants’ policies, practices, and customs of subjecting prcrfirst appearance detainees to strip and visual body cavity searches without having and recording in writing a reasonable suspicion that such searches would bc productive of contraband or weapons;
B. Certification of this action as a class action, designation of Plaintiffs as class
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represematives and counsel as class counsel;
C. For compensatory, general, and special damages for each represemative and for each
member of the class of Plaintiffs, as against all Defendants;
D. Exemplary damages as against all of the individual Defendants in an amount sufficient
to deter and to make an example of those Defendants;
E. Attorneys’ fees and costs under 42 U.S.C. § 1988; and
F. The cost of this suit and such other relief as the court finds just and proper.
JURY TRIAL DEMANDED
Plaintiffs demand trial by jury as to all issues triable as a right before a jury.
Respectfully submitted,
Randall C. Berg, Jr., Esq. Fla. Bar No. 0318371 Peter M. Siegel, Esq. Fla. Bar No. 227862 Cullin A. O’Brien, Esq. Fla. Bar No. 0597341
Florida Justice Institute, Inc. 2870 Wachovia Financial Center 200 South Biscayne Blvd. Miami, FL 33131-2310 305/358-2081 - Telephone 305/358-0910 - Facsimile rcberg@bellsouth.net - E-Mail
and
J. Larry Hanks, Esq. Fla. Bar No. 813982 Larry Hanks, P.A. 6500 South Highway 17-92 Fern Park, Florida 32730 407-423-1231 - Telephone
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 Case 6:05-cv-00850-GAP-KRS Document 20 Filed 08/02/2005 Page 1 of 27

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA ORLANDO DIVISION

CASE NO. 6:05-cv-850-Orl-31KRS

RONALD M. PARILLA, ALDA RUGG,

)

BILLY CATES, THERESA DECLUE,

)

AILEEN NUNEZ, DAVID W. ROBERTS, KIM )

LEMISTER, and FRANTARSHIA STAFFORD, )

individually and on behalf of a Class of all

)

others similarly situated,

)

)

Plaintiffs,

)

)

v.

)

)

DONALD ESLINGER, individually and

)

in his official capacity as Sheriff of Seminole

)

County, MICHAEL TIDWELL, individually and )

in his official capacity as Director of the John E. )

Polk Correctional Facility, DAVID DIGGS, in his )

individual capacity, and SEMINOLE COUNTY, )

)

)

Defendants.

)

)

FIRST AMENDED CLASS ACTION COMPLAINT and
JURY TRIAL DEMAND Plaintiffs, individually, and as representatives of a class of persons similarly situated, sue Defendants and allege:
INTRODUCTION 1. All non-felony arrestees who are booked into the John E. Polk Correctional Facility (hereinafter referred to as “the Seminole County Jail” or “the Jail”) are routinely subjected to dehumanizing invasive strip and visual body cavity searches prior to First Appearance, despite the fact that such blanket strip searches violate state and federal law, and despite the absence of prior

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written authorization of a supervising officer on duty in violation of Fla. Stat. § 901.211(5). All arrestees who are ordered to be immediately released by a judge or who have produced the required bond are held an unreasonably long period of time prior to release.
2. Unless enjoined and restricted, upon information and belief, Defendants will maintain their practice, policy, and custom of illegally subjecting all pre-First Appearance, non-felony, arrestees charged with non-violent, non-drug and non-weapons related offenses to illegal strip and/or visual body cavity searches; and will continue to strip search arrestees without prior written authorization from a supervising officer on duty in violation of Fla. Stat. § 901.211(5). Unless enjoined and restricted, upon information and belief, Defendants will maintain their practice, policy, and custom of detaining persons ordered by a judge to be immediately released, or who have paid the required bond, an unreasonably long period of time prior to release
JURISDICTION 3. This action is brought pursuant to 42 U.S.C. § 1983 and § 1988, and the Fourth and Fourteenth Amendments to the United States Constitution. Jurisdiction is founded upon 28 U.S.C. § 1331 and § 1343(a)(3) and (4) and the aforementioned statutory and constitutional provisions.
PARTIES 4. Plaintiffs, Parilla, Rugg, Cates, DeClue, Nunez, Roberts, Lemister, Stafford, and all those similarly situated, at all material times hereto, were arrested and subjected as a matter of policy, practice and custom, to a strip or visual body cavity search at the Jail. 5. Plaintiff, Ronald Parilla at all times material hereto was, a resident of Oviedo, Florida. 6. Plaintiff Alda Rugg is, and at all times material hereto was, a resident of Oviedo, Florida. 7. Plaintiff Billy Cates is, and at all times material hereto was, a resident of Altamonte
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Springs, Florida. 8. Plaintiff Theresa Declue is, and at all times material hereto was, a resident of Heathrow,
Florida. 9. Plaintiff Aileen Nunez is, and at all times material hereto was, a resident of Orlando,
Florida. 10. Plaintiff, David Roberts is, and at all times material hereto was, a resident of Osteen,
Florida. 11. Plaintiff Kim Lemister is now a resident of Sanford, Florida, and was at all times
material hereto a resident of Lake Mary, Florida. 12. Plaintiff Frantarsha Stafford is, and at all times material hereto, was a resident of
Orlando, Florida. 13. Defendant Seminole County is, and at all times material referred to herein, was a
political subdivision of the State of Florida. 14. Pursuant to state law, Defendant Seminole County has delegated the management and
operations of the Jail where the wrongs complained of herein occurred to the Defendant Sheriff of Seminole County.
15. Defendant Seminole County remains responsible for and is liable for the acts of its agent and the policy maker for the County, the Defendant Sheriff of Seminole County, including the payment of damages and attorneys’ fees for any of the constitutional violations complained of herein.
16. Defendant, Donald F. Eslinger, is, and at all times material to this action was, the Sheriff of Seminole County. As Sheriff, he is responsible for the operation of the Jail and is responsible for the care, custody and control of those individuals committed to the Jail, and for making,
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implementing, allowing, authorizing, or acquiescing in the policies, practices, and customs challenged herein. He is sued in his individual and official capacities.
17. Defendant Michael Tidwell is, and at all times material to this action was, the individual in charge of the day to day operations of the Jail commencing on approximately January 18, 2005. As such, he is responsible for the policies, practices and customs herein challenged. He is sued in his official and individual capacities.
18. Defendant David Diggs was the individual in charge of the day to day operations of the Jail at all times material to this action and until approximately December 31, 2004. As such, he was responsible for the policies, practices and customs herein challenged until approximately December 31, 2004. He is sued in his individual capacity.
19. At all material times mentioned herein, each of the Defendants was acting under the color of state law and the conduct of each constitutes state action.
FACTS A. RONALD M. PARILLA 20. On December 3, 2004, Plaintiff Parilla went to the Seminole County Courthouse in Sanford, Florida for a non-moving traffic citation for an improperly registered company car. After passing through the metal detector he asked Seminole County Deputy Sheriff Carraday for directions to “courtroom F” as noted on his ticket. Carraday told Plaintiff Parilla that there was no “courtroom F” and directed him to “courtroom 1B,” pointing towards the courtroom as they spoke. In the courtroom, a court employee told Plaintiff Parilla to sit down until his name was called. 21. Approximately two hours later, the judge in “courtroom 1B” suggested that there were too many people in his courtroom and called the names of people still on his docket. The people not
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named, which included Plaintiff Parilla, were told by the judge to go to “courtroom 1A” next door. Shortly after Plaintiff Parilla arrived at “courtroom 1A,” the room began filling with Deputy Sheriffs. Then, one of the Deputies announced to the crowd that the judge in “courtroom 1A,” Judge John R. Sloop, had signed warrants for their arrests for failure to appear.
22. Plaintiff Parilla and the others were taken into custody, handcuffed, and moved to another location in the courthouse where leg-irons and waist chains were applied.
23. At the courthouse, Plaintiff’s belt, shoelaces and personal belongings were taken. He was then subjected to a pat down search and placed in a van and transported to the jail.
24. At the Jail, Plaintiff Parilla was subjected to a strip or visual body cavity search. He was required to remove all his clothing, lift his private parts and spread his rectum.
25. The correctional officer who performed the search did not have the prior written authorization of a supervising officer on duty. The search was performed without their being, recorded in writing or otherwise, a particularized reasonable suspicion that the search would be productive of contraband or weapons.
26. At the conclusion of the search, Plaintiff Parilla was allowed to dress in his civilian clothing.
27. An Order signed by a judge that Plaintiff Parilla be immediately released from custody was filed by the clerk of the Eighteenth Judicial Circuit Court of Florida at 2:22 p.m. and faxed to the Jail at 3:48 p.m. on December 3, 2004. Plaintiff Parilla was not released from Jail custody until approximately 8:40 p.m.
28. Prior to December 3, 2004, Plaintiff Parilla had never been incarcerated. 29. Plaintiff Parilla is a 56 year old married Mercedes-Benz salesman. As a result of having
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to wait nearly 5 hours to be released after the receipt of the court order that he be immediately released, Plaintiff Parilla missed possible work opportunities and other normal daily activities. He was humiliated and embarrassed by being subjected to the aforementioned strip and visual body cavity search and by being required to stand naked for any passerby to observe. He suffered mental and emotional distress as a direct and proximate result of Defendants’ actions in depriving him of rights secured to him by the Fourth and Fourteenth Amendments to the United States Constitution.
B. ALDA RUGG 30. On December 3, 2004, Plaintiff Rugg appeared at the Seminole County Courthouse in response to a ticket for failure to display a tag in the vehicle she was driving. She was sent to “courtroom 1B” and later sent to “courtroom 1A” where she was arrested in the courtroom for "failure to appear" in court. 31. After her arrest, Plaintiff Rugg was placed in handcuffs, bellychains and leg irons and transported to the Jail. Immediately after arrival at the jail, Plaintiff Rugg, and the other women arrested in the courtroom, were taken to a hallway were they were made to open their mouth and lift their tongues. Then Plaintiff Rugg was taken to a room where an officer told her to remove all her clothing. She was made to squat and cough, lift her breasts and run her fingers through her hair. 32. The strip and/or visual body cavity search made Plaintiff Rugg feel extremely uncomfortable and dehumanized. 33. The correctional officer who performed the search did not have the prior written authorization of a supervising officer on duty. The search was performed without their being, recorded in writing or otherwise, a particularized reasonable suspicion that the search would be productive of contraband or weapons.
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34. Despite an immediate release Order signed by a judge and entered by the clerk at 2:30 p.m. and faxed to the Jail around 3:46 p.m. on December 3, 2004, Plaintiff Rugg was kept in jail custody inside a holding cell until about 9:00 p.m.
35. Prior to December 3, 2004, Plaintiff Rugg had never been arrested or incarcerated. 36. Plaintiff Rugg is a housewife with two children, one of whom is disabled. By being held over 5 hours after being ordered by a judge to be immediately released, Plaintiff Rugg was unable to meet her disabled son at his bus stop and to otherwise care for him, and was otherwise unable to engage in her normal everyday activities. She was humiliated, embarrassed and suffered mental and emotional distress as a result of being subjected to a strip and/or visual body cavity search and as a result of being unreasonably detained in custody for nearly an entire day for failure to display car tags. She was also humiliated and embarrassed by being required to stand naked for any passerby to observe. The mental and emotional distress she suffered were a direct and proximate result of Defendants’ actions in depriving her of rights secured to her by the Fourth and Fourteenth Amendments to the United States Constitution. C. BILLY CATES 37. On December 2, 2004, Plaintiff Cates was five minutes late to court, having originally gone to the old courthouse. When he arrived at the new Seminole County Courthouse in Sanford he was arrested for appearing late. Bond was set. 38. Plaintiff Cates was taken into custody, handcuffed, and moved to another location in the courthouse where leg-irons, belly-chains, and leg irons were applied. 39. At the courthouse, Plaintiff Cates’ belt, shoelaces and personal belongings were taken. He was then subjected to a pat down search and placed in a van and transported to the Jail.
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40. At the Jail, Plaintiff Cates was subjected to a strip and/or visual body cavity search by a correctional officer at approximately noon on December 2, 2004. He was required to remove all his clothing, lift his private parts and spread his rectum for inspection.
41. The correctional officer who performed the search did not have the prior written authorization of a supervising officer on duty. The search was performed without their being, recorded in writing or otherwise, a particularized reasonable suspicion that the search would be productive of contraband or weapons.
42. Plaintiff Cates’ mother and brother came to the Jail and paid Plaintiff Cates’ bond at 9:00 p.m. on December 3, 2004. However, Plaintiff Cates was not released until 14 hours later at 11:00 a.m. on December 4, 2004.
43. Plaintiff Cates is a 25 year, self-employed floor installer. He was humiliated and embarrassed by being subjected to the aforementioned strip and/or visual body cavity search and by being required to stand naked for any passerby to observe. By being unreasonably held without justification over 14 hours after his family posted his bond, Plaintiff Cates was unable to engage in work and otherwise engage in his normal everyday activities. He suffered mental and emotional distress as a direct and proximate result of Defendants’ actions in depriving him of rights secured to him by the Fourth and Fourteenth Amendments to the United States Constitution.
D. THERESA DeCLUE 44. On December 3, 2004, Plaintiff DeClue went to the Seminole County Courthouse in Sanford, Florida for an infraction charging her with driving with a suspended license. Her traffic ticket instructed that she report to “courtroom 1B.” In the courtroom, a court employee told Plaintiff DeClue to sit down until her name was called.
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45. Approximately two hours later, the judge in “courtroom 1B” suggested that there were too many people in his courtroom and called the names of people still on his docket. The eleven people not named, which included Plaintiff DeClue, were told by the judge to go to “courtroom 1A” next door. Shortly after Plaintiff Declue arrived at “courtroom 1A,” the room began filling with Deputy Sheriffs. Then, one of the Deputies announced to the crowd that the judge in “courtroom 1A,” Judge John R. Sloop, had signed warrants for their arrests for failure to appear.
46. Plaintiff DeClue and the others were taken into custody, handcuffed, and moved to another location in the courthouse where leg-irons and waist chains were applied.
47. At the courthouse, Plaintiff DeClue’s personal belongings were taken. She was then subjected to a pat down search and placed in a van and transported to the Jail.
48. At the Jail, Plaintiff DeClue was subjected to a strip and/or visual body cavity search. She was required to remove all her clothing, squat and spread her rectum.
49. The correctional officer who performed the search did not have the prior written authorization of a supervising officer on duty. The search was performed without their being, recorded in writing or otherwise, a particularized reasonable suspicion that the search would be productive of contraband or weapons.
50. At the conclusion of the search, Plaintiff DeClue was required to dress in a Jail uniform. 51. An Order signed by a judge to “immediately release” Plaintiff DeClue from custody was filed by the clerk of the Eighteenth Judicial Circuit Court of Florida at 2:22 p.m. and faxed to the Jail at 3:48 p.m. on December 3, 2004. Despite the Order, Plaintiff DeClue was not released from the Jail until approximately 9:00 p.m. 52. Prior to December 3, 2004, Plaintiff DeClue had never been in a Jail.
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53. Plaintiff DeClue is a 29 year old Administrative Assistant for a major employer in the Orlando area. She was humiliated and embarrassed by being subjected to the aforementioned strip and visual body cavity search and by being required to stand naked for any passerby to observe. By being unreasonably held without justification over 5 hours after being ordered to be immediately released, Plaintiff DeClue was unable to engage in work and otherwise engage in her normal everyday activities. She suffered mental and emotional distress as a direct and proximate result of Defendants’ actions in depriving her of rights secured to her by the Fourth and Fourteenth Amendments to the United States Constitution.
E. AILEEN NUNEZ 54. On December 3, 2004, Plaintiff Nunez went to the Seminole County Courthouse in Sanford, Florida for a non-moving traffic violation. She was told to report to “courtroom 1B.” In the courtroom, a court employee told Plaintiff Nunez to sit down until her name was called. 55. Approximately two hours later, the judge in “courtroom 1B” suggested that there were too many people in his courtroom and called the names of people still on his docket. The eleven people not named, which included Plaintiff Nunez, were told by the judge to go to “courtroom 1A” next door. Shortly after Plaintiff Nunez arrived at “courtroom 1A,” the room began filling with Deputy Sheriffs. Then, one of the Deputies announced to the crowd that the judge in “courtroom 1A,” Judge John R. Sloop, had signed warrants for their arrests for failure to appear. 56. At the Courthouse, Plaintiff Nunez was placed in restraints and then taken to the Jail. 57. Upon arrival at the Jail, Plaintiff Nunez was subjected to a strip or visual body cavity search. She was forced to squat and cough, and the officers ran their fingers through her hair. A correctional officer removed her bra because it had an under wire. At 2:22 p.m., an order that
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Plaintiff Nunez be “immediately released from custody ROR [release on own recognizance]” was filed in the Clerk’s Office, and faxed to Defendants at 3:48 p.m. However, Plaintiff Nunez was not released until approximately 9:00 p.m.
58. A correctional officer performed the strip search prior to obtaining the written authorization of a supervising officer on duty. The search was performed without their being, recorded in writing or otherwise, a particularized reasonable suspicion that the search would be productive of contraband or weapons.
59. Plaintiff Nunez is a 25 year old bank employee. She was humiliated and embarrassed by being subjected to the aforementioned strip and/or visual body cavity search and by being required to stand naked for any passerby to observe. By being unreasonably held without justification over 5 hours after being ordered “immediately released,” Plaintiff Nunez was unable to engage in work and otherwise engage in his normal everyday activities. She suffered mental and emotional distress as a direct and proximate result of Defendants’ actions in depriving her of rights secured to her by the Fourth and Fourteenth Amendments to the United States Constitution.
F. DAVID W. ROBERTS 60. On December 3, 2004, Plaintiff Roberts went to the Seminole County Courthouse in Sanford, Florida, for a non-moving traffic violation. He went to “courtroom 1B,” where a court employee told Plaintiff Roberts to sit down until his name was called. He had gone to the Courthouse to simply pay his fine of $50 for being one life jacket short in his boat. 61. Approximately two hours later, the judge in “courtroom 1B” suggested that there were too many people in his courtroom and called the names of people still on his docket. The people not named , which included Plaintiff Roberts, were told by the judge to go to “courtroom 1A” next door.
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Shortly after Plaintiff Roberts arrived at “courtroom 1A,” the room began filling with Deputy Sheriffs. Then, one of the Deputies announced to the crowd that the judge in “courtroom 1A,” Judge John R. Sloop, had signed warrants for their arrests for failure to appear.
62. Plaintiff Roberts and the others were taken into custody, handcuffed, and moved to another location in the courthouse where leg-irons and waist chains were applied.
63. At the courthouse, Plaintiff’s belt, shoelaces and personal belongings were taken. He was then subjected to a pat down search and placed in a van and transported to the jail.
64. At the jail, Plaintiff Roberts was subjected to a strip or visual body cavity search. The correctional officer who performed the search did not have the prior written authorization of the supervisor on duty. The search was performed without there being, recorded in writing or otherwise, a particularized reasonable suspicion that the search would be productive of contraband or weapons.
65. At 2:22 p.m., an order that Plaintiff Roberts be “immediately released from custody ROR [release on own recognizance]” was filed in the Clerk’s Office, and faxed to the Jail at 3:45 p.m. However, Plaintiff Roberts was not released until approximately 9:00 p.m.
66. Plaintiff Roberts is a 39 year old employee of a local construction firm. He was humiliated and embarrassed by being subjected to the aforementioned strip and visual body cavity search and by being required to stand naked for any passerby to observe. By being unreasonably held without justification over 5 hours after being ordered “immediately released,” Plaintiff Roberts was unable to engage in work and otherwise engage in his normal everyday activities. He suffered mental and emotional distress as a direct and proximate result of Defendants’ actions in depriving him of rights secured to him by the Fourth and Fourteenth Amendments to the United States Constitution.
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G. KIM LEMISTER 67. On September 13, 2002, Plaintiff Lemister was arrested at 1:00 a.m. for driving while intoxicated. She was on one crutch as a result of a knee injury. She was taken to the Jail to be booked. She was told by the female correctional officer on duty to go into the bathroom, take off her clothes and take a shower. When Plaintiff Lemister finished showering, she was told to go back into the shower and thoroughly wash her hair. After the shower, she was told to spread her legs and was given a visual body cavity search. The correctional officer took her bra because it contained an underwire. Her head was then sprayed for lice as were all other body areas containing hair. She was not given a towel to dry. She was told to dress in a jail uniform and taken to a single cell in the infirmary area because she possessed a crutch. 68. On information and belief, the female correctional officer who performed the search did not have the prior written authorization of a supervising officer on duty. The search was performed without there being, recorded in writing or otherwise, a particularized reasonable suspicion that the search would be productive of contraband or weapons. 69. Plaintiff Lemister’s boyfriend came to the Jail and paid her bond at 2:00 a.m. She was released the next morning at approximately some time between 10:30 to 11:00 a.m. 70. Plaintiff is a 32 year old employee of a bank. She was humiliated and embarassed by being subjected to the aforementioned strip and/or visual body cavity search. She has suffered mental and emotional distress as a direct and proximate result of Defendants’ actions in depriving her of rights secured to her by the Fourth and Fourteenth Amendments to the United States Constitution.
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H. FRANTARSHIA STAFFORD 71. On December 3, 2004, Plaintiff Stafford appeared at the Seminole County Courthouse in response to traffic tickets for no insurance and no registration. She was initially directed to the wrong courtroom and then arrested for “failure to appear” after being directed to “courtroom 1B” at the Seminole County Courthouse. At the Courthouse, she was handcuffed, forced to take off her shoes and put on jailhouse slippers, and put in belly chains. 72. Upon arrival at the Jail, Plaintiff Stafford was subjected to a strip or visual body cavity search by a correctional officer. She was forced to squat, bend over, and cough and officers ran their fingers through her hair. The correctional officer took her bra because it had an underwire. At 2:22 p.m., an order that Plaintiff Stafford (formerly Coleman) be “immediately released from custody ROR [release on own recognizance]” was filed in the Clerk’s Office, and faxed to Defendants at 3:50 p.m. However, Plaintiff Stafford was not released until approximately 9:00 p.m. 73. The correctional officer who performed the strip search did not have the prior written authorization of a supervising officer on duty. Plaintiff Stafford had never been subjected to a strip search prior to December 3, 2004. The search was performed without there being, recorded in writing or otherwise, a particularized reasonable suspicion that the search would be productive of contraband or weapons. 74. She was humiliated and embarrassed by being subjected to the aforementioned strip and/or visual body cavity search and by being required to stand naked for any passerby to observe. By being unreasonably held without justification over 5 hours after being ordered “immediately released,” Plaintiff Stafford was unable to engage in work and otherwise engage in her normal everyday activities. She suffered mental and emotional distress as a direct and proximate result of
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Defendants’ actions in depriving her of rights secured to her by the Fourth and Fourteenth Amendments to the United States Constitution.
I. ALL PLAINTIFFS 75. The strip and visual body cavity searches to which Plaintiffs and all those similarly situated are subjected are short-lived legal violations that are over before they can be challenged in court because all Plaintiffs are released prior to or at First Appearance (within the first 48 hours of incarceration), and are legal violations which are an on-going policy of the Defendants and for which monetary damages alone after-the-fact is not suitable long-term relief. Similarly, the unreasonably long detention in the Jail after being ordered “immediately released” by a judge or after the posting of bond is a short-lived legal violation which is over before it can be challenged in court, and is a legal violation which is an on-going policy of the Defendants and for which monetary damages afterthe-fact is not a suitable long-term relief. There is a reasonable likelihood that Defendants’ policies and practices will continue and some Plaintiffs and Plaintiff class members will most certainly be re-arrested in Seminole County, Florida. Therefore, the illegal polices are capable of repetition but evading judicial review if declaratory and injunctive relief is not provided. 76. As a result of being subjected to the strip and/or visual body cavity searches complained of herein and the unreasonably long detention after being ordered immediately released or after posting bond, each of the Plaintiffs (except Lemister for the length of detention) suffered physical, mental and emotional distress, invasion of privacy, lost work opportunities, and the violation of due process of law and federal constitutional rights, and is entitled to recover damages according to proof.
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CLASS ACTION ALLEGATIONS 77. The named Plaintiffs bring this suit as a class action, pursuant to the provisions of Rule 23(b)(2) & (3) of the Federal Rules of Civil Procedure for injunctive and declaratory relief, and monetary damages on behalf of a class of all persons similarly situated. 78. There are two Plaintiff classes. One class consists of all individuals who, within the applicable four year statute of limitations and continuing to this date, were subjected by Defendants to pre-First Appearance strip and/or visual body cavity searches at the John E. Polk Correctional Facility in Seminole County, Florida without Defendants having, and recording in writing, a particularized reasonable suspicion that the searches would be productive of contraband or weapons, and without the officer performing the strip and/or visual body cavity search having obtained the prior written authorization of a supervising officer on duty. 79. The other class consists of all persons unreasonably detained at the Jail for a period in excess of the time necessary to effectuate a release after a judge’s order for immediate release or the posting of bond. 80. These Plaintiff classes consists of an unknown but large number of individuals, numbering in the thousands, so that joinder of all members is impracticable. 81. Plaintiffs are informed and believe, and thereupon allege, that Defendants have the ability to identify all such similarly situated Plaintiffs who were subjected to strip and/or visual body cavity searches prior to first appearance without Defendants first having, and recording, a particularized reasonable suspicion that the searches would be productive of contraband or weapons, and without the officer performing the strip and/or visual body cavity search having obtained the prior written authorization of a supervising officer on duty.
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82. Plaintiffs are also informed and believe, and thereupon allege, that Defendants have the ability to identify all such similarly situated Plaintiffs who were unreasonably held in the Jail long after being ordered by a judge to be immediately released or after paying their bond.
83. There are questions of fact common to these classes including, but not limited to: (1) whether Defendants routinely subject all arrested persons to strip and/or visual body cavity searches prior to first appearance if they intend such persons to be housed in the John E. Polk Correctional Facility; (2) whether persons are subjected to strip and/or visual body cavity searches prior to First Appearance without there being any particularized reasonable suspicion, based on specific or articulable facts, to believe any particular arrestee has concealed drugs, weapons, and/or contraband in bodily cavities which could be detected by means of a strip and/or visual body cavity search; (3) whether the strip or visual body cavity searches are conducted in an area of privacy so that the searches cannot be observed by persons not participating in the searches, or whether the strip or visual body cavity search are conducted in areas where they may be observed by persons not participating in the searches; (4) whether the strip or visual body cavity searches are conducted by officers who do not obtain prior written authorization of a supervising officer on duty; and (5) whether persons ordered to be immediately released by a judge or who have posted bond are held for an unreasonable time period prior to being released from the Jail.
84. There are questions of law common to the class, including, but not limited to: (1) whether Defendants may perform strip and/or visual body cavity searches on persons prior to their First Appearance without particularized reasonable suspicion, based on specific or articulable facts, to believe any particular arrestee has concealed drugs, weapons and/or contraband, which would likely be discovered by a strip and/or visual body cavity search; (2) whether strip and/or visual body
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cavity searches may be conducted in areas where the search can be observed by people not participating in the search without violating Plaintiffs’ federal constitutional rights; (3) whether Defendants’ strip and/or visual body cavity search policy and procedure is in accordance with the federal constitution; (4) whether Defendants’ strip search policy and procedure is in accordance with Fla. Stat. § 901.211; and (5) whether Defendants’ policy and procedure of detaining pre-trial detainees for hours after their immediate release has been ordered by a judge or after their bond has been paid violates Plaintiffs’ federal constitutional rights.
85. The claims of the representative Plaintiffs are typical of the classes. Plaintiffs were searched, prior to First Appearance, without reasonable suspicion that a strip and/or visual body cavity search would produce drugs, weapons or contraband (and without the facts supporting any such suspicion being articulated in a supervisor approved document). Representative Plaintiffs have the same interests and suffered the same type of injuries as all of the other class members. Plaintiffs’ claims arose because of Defendants’ policy, practice, and custom of subjecting arrestees to strip and/or visual body cavity searches before First Appearance without having, and recording in writing, a reasonable suspicion that the search would be productive of contraband or weapons. Plaintiffs’ claims (except Lemister) also arose for being unreasonably detained in the Jail for hours despite an order signed by a judge that the Plaintiffs be immediately released or released after posting bond. Plaintiffs’ claims are based upon the same legal theories as the claims of the class members. Each class member suffered actual damages as a result of being subjected to a visual body cavity search and being unreasonably held for hours after being ordered immediately released or after posting bond. The actual damages suffered by representative Plaintiffs are similar in type and amount to the actual damages suffered by each class member.
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86. The representative Plaintiffs will fairly and adequately protect the class interest. Plaintiffs’ interests are consistent with and not antagonistic to the interests of the class. They have a strong personal interest in the outcome of this action and have no conflicts of interest with members of the Plaintiff class. The named Plaintiffs were all subjected to strip and visual body cavity searches without legal justification. The named Plaintiffs (except Lemister) were all subjected to being unreasonably detained for hours in the Jail after being ordered immediately released by a judge or after posting bond. As long as the policies, practices and customs of the Defendants continue to permit dehumanizing invasive strip and visual body cavity searches or the Defendants continue to unreasonably detain persons ordered immediately released by a judge or after posting bond, the named Plaintiffs (except Lemister), and the class they represent, are and will remain at high risk of being subjected to searches in clear violation of established constitutional rights or being detained unreasonably in the Jail after being ordered immediately released by a judge or after posting bond.
87. The named Plaintiffs are represented by experienced counsel who specialize in civil rights class action litigation.
88. The prosecutions of separate actions by individual members of the class would create a risk that inconsistent or varying adjudications with respect to individual members of the class would establish incompatible standards of conduct for the parties opposing the class.
89. The prosecutions of separate actions by individual members of the class would create a risk of inconsistent adjudications with respect to individual members of the class which would, as a practical matter, substantially impair or impede the ability of the other members of the class to protect their interests.
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90. The Defendants have acted on grounds generally applicable to the class, thereby making appropriate the final injunctive or declaratory relief with respect to the class as a whole.
91. A class action is superior to all other available methods for the fair and equitable adjudication of the controversy between the parties. Plaintiffs are informed and believe, and thereupon allege, that the interests of members of the class in individually controlling the prosecution of a separate action is low in that most class members would be unable individually to prosecute any action at all. Plaintiffs are informed and believe, and thereupon allege, that most members of the class will not be able to find counsel to represent them. Plaintiffs are informed and believe, and thereupon allege, that it is desirable to concentrate all litigation in one forum because all of the claims arise in the same location. It will promote judicial efficiency to resolve the common questions of law and fact in one form, rather than in multiple courts.
COUNT ONE (Violation of Fourth and Fourteenth Amendments to the U.S. Constitution on Behalf of Plaintiffs and All Persons Similarly Situated) 92. Plaintiffs repeat and reallege paragraphs one (1) through ninety-one (91) as though fully set forth herein. 93. The strip and/or visual body cavity searches to which Plaintiffs and all those similarly situated were subjected were performed pursuant to policies, practices, and customs of named Defendants. 94. The strip and/or visual body cavity searches to which Plaintiffs and all those similarly situated were subjected are short-lived legal violations that are over before they can be challenged in court because all Plaintiffs are released prior to or at First Appearance (within the first 48 hours of incarceration), are legal violations which are an on-going policy of the Defendants and for which
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monetary damages after-the-fact is not a suitable long-term solution, there is a reasonable likelihood that the policy and practice will continue and plaintiff class members will be re-arrested, and therefore the illegal policy is capable of repetition but evading review if declaratory and injunctive relief is not provided.
95. The searches complained of herein were performed without regard to the nature of the alleged offenses for which Plaintiffs had been arrested, without regard to whether or not Plaintiffs were eligible for prompt release and without regard to whether or not Plaintiffs were eligible for and/or were released on their own recognizance. Furthermore, the searches complained of herein were performed without Defendants having a reasonable belief that the Plaintiffs so searched possessed drugs, weapons or contraband or that there existed facts supporting a particularized reasonable suspicion that the searches would produce drugs, weapons or contraband, and those facts being articulated and recorded in a supervisor-approved document. The searches complained of herein were also performed by officers who did not have the prior written authorization of supervising officers on duty.
96. Plaintiffs are informed and believe, and thereupon allege, that Defendants routinely follow their policy, practice, and custom of requiring pre-First Appearance detainees to strip naked and to submit to visual body cavity searches without having, and recording in writing, a particularized reasonable suspicion that the searches will be productive of drugs, weapons or contraband or weapons.
97. Strip and body cavity searches, as alleged in this Complaint, are done as a matter of routine, and are permitted and encouraged, in accordance with the established policies, practices and customs of the Defendants.
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98. In searching the Plaintiffs as alleged, staff at the Jail act or have acted in accordance with the policy, practice and custom authorized or permitted by Defendants Tidwell and Diggs.
99. The policy, practice and custom of strip or visual body cavity searching all arrestees, as authorized or permitted by Defendants Tidwell and Diggs is attributable to Defendant Eslinger who, if he did not specifically authorize and permit the strip and visual body cavity searches as herein alleged, allowed Defendants Tidwell and Diggs to create and implement the policy, practice and custom employed at the Jail.
100. The policy, practice and custom of strip or visual body cavity searching all arrestees, as authorized or permitted by Defendants Tidwell, Diggs, and Eslinger, is attributable to Seminole County, which has delegated the creation of policy, practice and custom at the Jail to Defendant Eslinger.
101. Defendants Tidwell, Diggs, and Eslinger facilitate, encourage, and acquiesce in the behavior of their subordinates, who routinely conduct strip and visual body cavity searches, as alleged in this Complaint.
102. Individual named Defendants herein are personally responsible for the promulgation and continuation of the strip search policy, practice, and custom pursuant to which Plaintiffs herein and all those similarly situated, were subjected to the searches complained of herein.
103. Defendants’ policies, practices, and customs regarding the strip and visual body cavity searches complained of herein violated Plaintiffs’ rights under the Fourth Amendment of the U.S. Constitution to be free from unreasonable searches and seizures and violated said Plaintiffs’ rights to due process and privacy under the Fourteenth Amendment, and directly and proximately damaged Plaintiffs as herein alleged, entitling Plaintiffs to recover damages for said constitutional violations
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pursuant to 42 U.S.C. § 1983. COUNT TWO
(Failure to Obtain Prior Written Authorization to a Strip Search is a Violation of a Liberty Interest Forbidden by the Fourteenth Amendment to the
U.S. Constitution on Behalf of Plaintiffs and All Persons Similarly Situated) 104. Plaintiffs repeat and reallege paragraphs one (1) through one-hundred-and-three (103) as though fully set forth herein. 105. Plaintiffs are informed and on that basis allege that Defendants strip search persons at the Jail without first obtaining the prior written authorization from a supervising officer on duty, in violation of Fla. Stat. § 901.211. 106. Fla. Stat. § 901.211 is non-discretionary and therefore creates a liberty interest in not being strip searched without the prior written authorization specified therein. 107. Defendants’ policies, practices, and customs regarding the strip and visual body cavity searches complained of herein which are conducted by officers who do not obtain the prior written authorization of a supervising officer on duty violates Plaintiffs’ rights under the Fourteenth Amendment of the U.S. Constitution in that Fla. Stat. § 901.211(5) creates a liberty interest preventing strip searches without the prior written authorization of a supervising officer on duty, and directly and proximately damaged Plaintiffs as herein alleged, entitling Plaintiffs to recover damages for said constitutional violation pursuant to 42 U.S.C. § 1983.
COUNT THREE ( Unreasonable Detention After Being Ordered to be Immediately Released is an Unreasonable Seizure in Violation of the Fourth Amendment and a Violation of a Liberty Interest Forbidden by the Fourteenth Amendment to the U.S. Constitution on Behalf of
Plaintiffs and All Persons Similarly Situated)
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108. Plaintiffs (except Lemister) repeat and reallege paragraphs one (1) through onehundred-and-seven (107) as though fully set forth herein.
109. The unreasonably long detention in the Jail, after a release order is entered and after Jail officials are made aware of the order, or after the posting of bond, to which Plaintiffs (except Lemister) and all those similarly situated were subjected were performed pursuant to policies, practices, and customs of named Defendants.
110. The unreasonable detention to which the Plaintiffs (except Lemister) and all those similarly situated were subjected are short-lived legal violations that are over before they can be challenged in court, are legal violations which are an on-going policy of the Defendants and for which monetary damages alone after-the-fact is not a suitable long-term solution, there is a reasonable likelihood that the policy, practice, and custom will continue and Plaintiff class members will be re-arrested, and therefore the illegal policy, practice, and custom is capable of repetition but evading review if declaratory and injunctive relief is not provided.
111. Plaintiffs are informed and believe, and thereupon allege, that Defendants routinely follow their policy, practice, and custom of unreasonable detention after receipt of release orders or the posting of bond.
112. Unreasonably long detentions, as alleged in this Complaint, are done as a matter of routine, and are permitted and encouraged, in accordance with the established policies, practices and customs of the Defendants.
113. In unreasonably detaining the Plaintiffs as alleged, staff at the Jail act or have acted in accordance with the policy, practice and custom authorized or permitted by Defendants Tidwell and Diggs.
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Case 6:05-cv-00850-GAP-KRS Document 20 Filed 08/02/2005 Page 25 of 27
114. The policy, practice and custom of unreasonably long detention, as authorized or permitted by Defendants Tidwell and Diggs is attributable to Defendant Eslinger who, if he did not specifically authorize and permit the unreasonably long detention as herein alleged, allowed Defendants Tidwell and Diggs to create and implement the policy, practice and custom employed at the Jail.
115. The policy, practice and custom of unreasonably long detention, as authorized or permitted by Defendants Tidwell, Diggs, and Eslinger, is attributable to Seminole County, which has delegated the creation of policy, practice and custom at the Jail to Defendant Eslinger.
116. Defendants Tidwell, Diggs, and Eslinger facilitate, encourage, and acquiesce in the behavior of their subordinates, who routinely unreasonably detain persons ordered to be released or after the payment of bond, as alleged in this Complaint.
117. Individual named Defendants herein are personally responsible for the promulgation and continuation of the unreasonable detention policy, practice, and custom to which Plaintiffs, and all those similarly situated, were subjected.
118. Defendants’ policies, practices, and customs regarding the unreasonable detention after being ordered released or the payment of bond, violated Plaintiffs’ rights under the Fourth Amendment of the U.S. Constitution to be free from unreasonable seizure and violated Plaintiffs’ (except Lemister) rights to due process and a liberty interest under the Fourteenth Amendment, and directly and proximately damaged Plaintiffs as herein alleged, entitling Plaintiffs (except Lemister) to recover damages and declaratory and injunctive relief as requested hereunder for said constitutional violations pursuant to 42 U.S.C. § 1983.
Wherefore, Plaintiffs pray for relief as hereunder appears.
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Case 6:05-cv-00850-GAP-KRS Document 20 Filed 08/02/2005 Page 26 of 27
PRAYER FOR RELIEF A. For declaratory and injunctive relief declaring illegal and enjoining, preliminarily and permanently, Defendants’ policies, practices, and customs of subjecting pre-first appearance detainees to strip and visual body cavity searches without having a reasonable suspicion that such searches would be productive of drugs, contraband or weapons; B. For declaratory and injunctive relief declaring illegal and enjoining preliminarily and permanently, Defendants’ policies, practices, and customs of allowing officers to conduct strip and visual body cavity searches without first obtaining the prior written authorization of a supervising officer on duty; C. For declaratory and injunctive relief declaring illegal and enjoining, preliminarily and permanently, Defendants’ policies, practices, and customs of unreasonably detaining persons in the Jail after the receipt of a release order or the payment of bond; D. Certification of this action as a class action, designation of Plaintiffs as class representatives and counsel as class counsel; E. For compensatory, general, and special damages for each representative and for each member of the class of Plaintiffs, as against all Defendants; F. Exemplary damages as against all of the individual Defendants in an amount sufficient to deter and to make an example of those Defendants; G. Attorneys’ fees and costs under 42 U.S.C. § 1988; and H. The cost of this suit and such other relief as the court finds just and proper.
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Case 6:05-cv-00850-GAP-KRS Document 20 Filed 08/02/2005 Page 27 of 27
JURY TRIAL DEMANDED Plaintiffs demand trial by jury as to all issues triable as a right before a jury.
Respectfully submitted, Randall C. Berg, Jr., Esq. Fla. Bar No. 0318371 Peter M. Siegel, Esq. Fla. Bar No. 227862 Cullin A. O’Brien, Esq. Fla. Bar No. 0597341 Florida Justice Institute, Inc. 2870 Wachovia Financial Center 200 South Biscayne Blvd. Miami, FL 33131-2310 305/358-2081 - Telephone 305/358-0910 - Facsimile rcberg@bellsouth.net - E-Mail and J. Larry Hanks, Esq. Fla. Bar No. 813982 Larry Hanks, P.A. 6500 South Highway 17-92 Fern Park, Florida 32730 407-423-1231 - Telephone 407-423-3066 - Facsimile larrylaw@bellsouth.net E-Mail s/ Randall C. Berg, Jr. By: Randall C. Berg, Jr., Esq.
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 Case 6:05-cv-00850-GAP-KRS Document 86 Filed 05/29/2007 Page 1 of 5

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA ORLANDO DIVISION

CASE NO. 6:05-cv-850-0rl-31KRS

RONALD M. PARlLLA, ALDA RUGG,

)

BILLY CATES, THERESA DECLUE,

)

AILEEN NUNEZ, DAVID W. ROBERTS, KIM

)

LEMISTER, and FRANTARSIllA STAFFORD,

)

individually and on behalf of a C lass of all

)

others similarly situated,

)

)

Plaintiffs,

)

)

v.

)

)

DONALD ESLINGER, individu ally and

)

in his official capacity as Sheriff of Semi nole

)

Cou nty, MICHAEL TIDWELL, individuallya nd

)

in his offici al capacity as Director of the John E.

)

Polk Correctional Facility, DAVID DI GGS, in his

)

individual capacity, and SEMJNOLE COUNTY,

)

)

)

Defendants.

)

)

)

AGREED ORDER AND JUDGMENT OF DISMISSAL

Thi s matter came on for a Fairness Hearing on May 24, 2007, as set forth in the Amended Notice of Hearing entered on May 2, 2007. Plaintiffs' cl ass was represented by Class Counsel Randall C. Berg, Jr. , of the Florida Justice Institute, Inc., and J. Larry Hanks of Larry Hanks, P.A.; Defendants Eslinger, Diggs, and Tidwellwere represented by Thomas W. Poulton and D. Andrew DeBevoise ofDeBevoise and Poulton, P.A , Defendant Semino le County was represented by David T. White, LU , of Rissman, Barrett, Hurt, Donohue, & Mclain, P.A
After considering the submissions ofthe parties, including the Joint Motion fo r Preliminary Approval of Provisional Settlement C lass and Settlement of C lass Act ion, together with the extensive exhibits attached thereto and the Arguments of Counse l, it is hereby ORDERED and ADJUDGED AS FOLLOWS:

Case 6:05-cv-00850-GAP-KRS Document 86 Filed 05/29/2007 Page 2 of 5
t. On January 25, 2007 this court entered its Order preliminarily approving settlement ofthe above captioned class acti on . Since the en try of the Court' s preliminary Order, in accordance with the Stipulation of Settlement as proved to the sati sfacti on of the Court, the requisite noti ce of Settlement, with opt-out and objection information, was published in the Orlando Sentinel (February 12,2007 and February 19,2007) and on the web at www.FloridaJ usticelnstitute.comwithQuestions and Answers, the Stipulation of Settlement, Class Notice and Claims Fonns; and notice of the Sett lement and approved cla im fonns were posted by First Class U. S. Mail to the last known address of each person in groups one and two of the settlement class. Both the published notice and the mai led notice specified that claim fonns had to be delivered to Plai nti ffs' Counsel at the Florida Justice Institute, post marked not later than May 4, 2007.
2. Both the publi shed and mailed notices specified that any person who chose to object to the Settlement, either personally or through counsel , and desired to appear at the Fairness Hearing was required to submit a Notice of Intention to Appear, together with written arguments in support of any objection, by May 4,2007. No written obj ections were received by the Court. Furthennore, although opportunity was given by the court to voice objections at the time of the Fairness Hearing, no objections were Slaled by any member of the class or representative of any such class member. The notice also spec ified that any person who chose to exclude themselves from the class may do so by signing a request for exclusion that must be filed with the Clerk of the Court by May 5, 2007. Requests for exclusion were received by the clerk from BONNIE RETAUC, A.K.A. BONNIE KOZIMOR (DE 77). AS lERMURUA (DE 78). and DR. UNDA TAVERNIER-ALMADA (DE 79).
3. The Court is sat isfi ed from all of the memoranda of law, declarations, and ex.hibits submitted to the Court , that the Stipulation of Settlement is, and the Court now find s, is fair and finally approves it as such. The Stipul at ion of Settlement is incorporated herein by this reference . as if set out in full.
4. The members of the settlement class include the following: a. Representative Class Members (RCMs): RONALD PARlLLA, AiDA RUGG,
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Case 6:05-cv-00850-GAP-KRS Document 86 Filed 05/29/2007 Page 3 of 5
THE ESTATEOFBlLLYCATES, THERESA DECLUE, AILEEN NUNEZ, DAVID W. ROBERTS, KIM LEMJSTER, SHANE BRADLEY, and FRANTARSHlA STAFFORD. b. Verified Settlement Class Members (VSCMs) include: DARREN GREEN, BRlAN STAMEN, MlCAN STEPHENS, and ROBERT BROCK. 5. Claim ronns were timely subm itted by potential class members, reviewed, and were found to be unverified claim s. Unverified Class Members (UVMs) include: DAVlD MORTON, WlLLlE WRlGHT, JUDY HAGNER, RESI'lARD NOBLE, NICHOLAS BENNETTO, and JOHN WARREN. 6. Claim fonns were untimelysubmitted by potential class members and were excluded from the verification process. The time·barrcd claims were submitted by PHlLLLP SCOTT HALL and EUZABETH SCOTT. 7. On May 24, 2007, JUDY HAGNER did appear at the Fairness Hearing and was heard by the Court. After her claim 's fonn,jail records and correspondence reviewed, it was detennined that Ms. HAGNER was not a verified class member. Ms. HAGNER was infonned as to the Court's reasoning fo r not al lowing her claim, and what remedies she still has if she wishes to file a separate action. 8. Persons who previously commenced civil li tigation challenging the legality of any strip search at the John E. Polk Correctional Facility during the class period and have prevailed, settled or had their complaints denied on their merits, and persons who have given timely notice of their election to be excluded from the settlement class are not included in the settlement class. 9.With the exception of any individual s who submitted timely requests to the Court to optout ofthe Stipulation ofSettlement, all claims and complaints ofthe named representative plaintiffs, together with all persons in the settlement class, are now dismissed with prejudice as to all oflhe Related Persons defined to include the defendants and their predecessors, successors, and/or assigns, together with past, present and future officials, employees, representatives, attorneys andlor agents
-3-

Case 6:05-cv-00850-GAP-KRS Document 86 Filed 05/29/2007 Page 4 of 5
of the John E. Polk Correctional Faci lity. Claims and complaints of such persons are now forever barred, and all settlement class members are enjo ined from asserting against any Released Person or persons any and all claims which the settlement cl ass members had, have, or may have in the future arising out of the facts alleged in the Amended Complaint.
10. Each Released Person is released from the claims which any sett lement class member has had or may in the future have against any such Released Person arising out of the facts in the Complaint .
II . This Court explicitly finds that the St ipulation of Settlement, which is now made final by this Judgment, was entered into in good faith, is reasonable, fa ir and adequate, and is in the best interest of the Class. The Court express ly approves payment to Class Counsel the Law Office of Larry Hanks, P.A. and the Florida Justice Institute, Inc., oftbe amount of Two Hundred and Six Thousand Dollars( $206,000) as and for attorneys' fee s for the representation of the settlement class members herein, to be paid as provided in the Sti pulation of Settlement.
12. The Court further explicitly approves payment from the payment fund ofa total ofThree Hundred and Sixty Thousand Dollars ($360,000) to be divided among the Representative Class Members (RCMs), as specified in the Stipu lation o f Settlement. The Court finds the amount is fair and adequate in view of the damages suffered by the representative plaintiffs and the efforts they expended in litigating this case in the several years since the underlying events occurred which gave rise to the filing of the Complaint.
13. Pursuant to the Stipulation of Settlement, defendants have allocated up to Fifty·Four Thousand Dollars ($54,000) to pay verified Settlement Class Members (SCMs). Claims have been submitted to and, in accordance with the claims processing procedure speci fi ed in the Stipulation of Settlement, will be paid eighteen hundred dollars each ($1 , 800.00 each) to the four (4) VSCM set forth above in ~ 4 .b. as soon as practi cable following the effective date of th is Judgment, meaning the date it is entered and becomes fin al. The Judgment wi ll be deemed final only upon the expiration of the time to appeal or, if a Notice of Appeal is fi led, upon exhaustion of all appeals and
-4-

Case 6:05-cv-00850-GAP-KRS Document 86 Filed 05/29/2007 Page 5 of 5

petitions for a Writ of Certiorari. 14. The Court reserves continuing and exclusive jurisdiction over the parties in this action,
including defendants and all settlement class members, to admin ister, supervise, and construe and enforce the settlement in accordance with the tenns for the mutual benefit of all of the parties.
15. It is further ordered, adj udged and decreed that the Complaint in this action be dismissed with prejudice and that Judgment be and the same hereby is entered pursuant to the terms of this Order.
;<'Vi DONE AND ORDERED in chambers in Orlando, Florida, Orange County this May
2007.

Copies to all counsel of record

ct Court Judge

-5-

 
 Parilla v. Eslinger, Not Reported in F.Supp.2d (2005)
2005 WL 3288760 United States District Court,
M.D. Florida.
Ronald M. PARILLA, Alda Rugg, Billy Cates, Theresa Declue, Aileen Nunez, David W. Roberts, Kim Lemister, Frantarshia Stafford, on behalf of
themselves and others similarly situated, Plaintiffs, v.
Donald ESLINGER, Michael Tidwell, David Diggs & Seminole County, Defendants.
No. 6:05-CV-850-ORL. | Dec. 5, 2005.
Attorneys and Law Firms
Cullin Avram O’Brien, Peter Michael Siegel, Randall Challen Berg, Jr., Florida Justice Institute, Inc., Miami, FL, J. Larry Hanks, Larry Hanks, P.A., Fern Park, FL, for Plaintiffs.
D. Andrew Debevoise, Thomas W. Poulton, Debevoise & Poulton, P.A., Winter Park, FL, David T. White, III, Henry W. Jewett, II, Rissman, Weisberg, Barrett, Hurt, Donahue & McLain, P.A., Orlando, FL, for Defendants.
Opinion
ORDER
PRESNELL, J.
*1 This matter came before the Court after a hearing on the motions to dismiss filed by Defendants Donald Eslinger (“Eslinger”), Michael Tidwell (“Tidwell”), and David Diggs (“Diggs”) (collectively, the “Individual Defendants”) (Doc. 21) and by Defendant Seminole County (the “County”) (Doc. 23), as well as the Plaintiffs’ response (Doc. 29) to both motions.
I. Background
A. The Parties Defendant Eslinger is the Sheriff of Seminole County and is alleged to be responsible for the management and operations of the Seminole County Jail (the “Jail”). He has been sued in both his official and individual capacities. Defendants Tidwell and Diggs were responsible for the day-to-day operations of the Jail during the period covered by the First Amended Class

Action Complaint (henceforth, the “Complaint”) (Doc. 20).1 Tidwell is sued in both his official and individual capacities, while Diggs is sued only individually.

1

According to the Complaint, Diggs’ oversight

concluded in December of 2004, and Tidwell’s began

in January of 2005. (Doc. 20 at 4).

The Plaintiffs are all Seminole Country residents who had been charged with non-violent crimes such as improper vehicle registration or failure to display a license plate. With one exception, the Plaintiffs missed court appointments in December 2004 and were subsequently arrested for failure to appear.2 Upon being transported to the Seminole County Jail, the Plaintiffs were subjected to strip searches and body cavity searches. In addition, the Plaintiffs (other than Lemister) contend that after a judge ordered their immediate release or their bond was paid, jail employees continued to detain them for an unreasonably long time.3

2

Plaintiff Kim Lemister (“Lemister”) was arrested on a

charge of driving under the influence in September

2002 and transported directly to the Seminole County

jail. (Doc. 20 at 13).

3

Lemister does not allege that she was detained for an

unreasonably long time after a judge had ordered her

release. (Doc. 20 at 24).

The Plaintiffs have asserted three causes of action under 42 U.S.C. § 1983. In Count One, the Plaintiffs allege that the searches violated their Fourth Amendment rights to be free from unreasonable searches and seizures and their Fourteenth Amendment rights to due process and privacy. In Count Two, the Plaintiffs allege that the searches were conducted in violation of Florida law requiring a supervisor’s prior authorization, thereby infringing upon a liberty interest protected by the Fourteenth Amendment. And in Count Three, the Plaintiffs (except Lemister) contend that the unreasonably long detentions violated their Fourth Amendment right to be free from unreasonable seizure and a liberty interest protected the Fourteenth Amendment. As to each count, the Plaintiffs seek, inter alia, declaratory and injunctive relief, damages and attorneys’ fees. The Plaintiffs also seek punitive damages against the Individual Defendants.
The Individual Defendants have moved to dismiss the individual capacity claims in all three counts due to qualified immunity, and Eslinger seeks dismissal of the individual capacity claims against him on the grounds that
1

Parilla v. Eslinger, Not Reported in F.Supp.2d (2005)

the Complaint does not sufficiently establish supervisory liability. The Individual Defendants also contend that counts two and three fail to state a claim upon which relief may be granted. Seminole County seeks dismissal of the claims against it on the grounds that it cannot be held liable for the actions of Eslinger.4

4

Seminole County also seeks dismissal of any punitive

damages claims made against it, but the Plaintiffs’

punitive damages claims are limited to the Individual

Defendants. (Doc. 20 at 26).

II. Standard of Review *2 In ruling on a motion to dismiss, this Court must view the Complaint in the light most favorable to the Plaintiffs, Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974), and must limit its consideration to the pleadings and any exhibits attached thereto. FED. R. CIV. P. 10(c); see also GSW, Inc. v. Long County, Ga., 999 F.2d 1508, 1510 (11th Cir.1993). The Court will liberally construe the Complaint’s allegations in the Plaintiffs’ favor. Jenkins v. McKeithen, 395 U.S. 411, 421, 89 S.Ct. 1843, 23 L.Ed.2d 404 (1969). The Court will not dismiss a complaint for failure to state a claim unless it appears beyond a doubt that the Plaintiffs cannot prove any set of facts that support a claim for relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). In ruling on a motion to dismiss, “conclusory allegations, unwarranted factual deductions or legal conclusions masquerading as facts will not prevent dismissal.” Davila v. Delta Air Lines, Inc., 326 F.3d 1183, 1185 (11th Cir.2003).
In reviewing a complaint on a motion to dismiss under Rule 12(b)(6), “courts must be mindful that the Federal Rules require only that the complaint contain ‘a short and plain statement of the claim showing that the pleader is entitled to relief.” ’ U.S. v. Baxter Intern., Inc., 345 F.3d 866, 880 (11th Cir.2003) (quoting Fed.R.Civ.P. 8(a)). This is a liberal pleading requirement, one that does not require a plaintiff to plead with particularity every element of a cause of action. Roe v. Aware Woman Ctr. for Choice, Inc., 253 F.3d 678, 683 (11th Cir.2001). Instead, the complaint need only “contain either direct or inferential allegations respecting all the material elements necessary to sustain a recovery under some viable legal theory.” Id. (internal citation and quotation omitted). “A complaint need not specify in detail the precise theory giving rise to recovery. All that is required is that the defendant be on notice as to the claim being asserted against him and the grounds on which it rests.” Sams v. United Food and Comm’l Workers Int’l Union, 866 F.2d 1380, 1384 (11th Cir.1989).

III. Legal Analysis
A. Qualified Immunity Qualified immunity shields a Section 1983 defendant from liability for harms arising from discretionary acts, as long as the discretionary acts do not violate clearly established federal statutory or constitutional rights of which a reasonable person would have known. Wilson v. Jones, 251 F.3d 1340, 1344 (11th Cir.2001). The defense of qualified immunity is appropriate to consider at the motion to dismiss stage. Snider v. Jefferson State Cmty. Coll., 344 F.3d 1325, 1327 (11th Cir.2003). To receive qualified immunity, “the government official must first prove that he was acting within [the scope of] his discretionary authority.” Gonzalez v. Reno, 325 F.3d 1228, 1234 (11th Cir.2003). Once the official establishes that he was acting within the scope of his discretionary authority, the burden shifts to the plaintiffs to show that qualified immunity is not appropriate. Id. To determine whether qualified immunity is appropriate, the Court must ask two questions. First, whether, viewed in the “light most favorable to the party asserting the injury, do the facts alleged show the officer’s conduct violated a constitutional right?” Id. (internal citation and quotation omitted). Second, if a violation of a right can be made out based on the facts alleged, the Court must determine whether that right was clearly established. Id. In making these determinations, the Court accepts “all well-pleaded facts in the complaint as true and draw[s] all inferences in the plaintiff’s favor.” Williams v. Ala. State Univ., 102 F.3d 1179, 1182 (11th Cir.1997); see also O’Rourke v. Hayes, 378 F.3d 1201, 1206 (11th Cir.2004) (the Court “look[s] to the pleadings to see if the plaintiff has successfully alleged the violation of a clearly established right.”).
*3 The determination of whether a constitutional right was clearly established at the time of the incident must be made in the specific context of the case. Vinyard v. Wilson, 311 F.3d 1340, 1349 (11th Cir.2002). “A right is clearly established if, in light of preexisting law, the unlawfulness of the official’s conduct is ‘apparent’.” Cooper v. Dillon, 403 F.3d 1208, 1220 (11th Cir.2005); Vinyard, 311 F.3d at 1350 (issue is whether “it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.”). This standard does not require that the particular conduct under scrutiny was previously found to be unlawful. Cooper, 403 F.3d at 1220. Instead, the state of the existing law must only be such that the official had a fair warning that his conduct is unlawful. Id. See also Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982) (“If the law at that time was not clearly established, an official could not reasonably be expected to anticipate subsequent legal developments, nor could he fairly be said to ‘know’ that the law forbade conduct not previously identified as
2

Parilla v. Eslinger, Not Reported in F.Supp.2d (2005)
unlawful.”). General statements of the law are not inherently incapable of giving fair and clear warning, and in some instances a general constitutional rule already identified in the decisional law may apply with obvious clarity to the specific conduct in question, even though the very action in question has [not] previously been held unlawful. Hope v. Pelzer, 536 U.S. 730, 741, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002) (internal quotation omitted).
The Eleventh Circuit has identified three categories of “fair and clear” warning:
First, we look to see whether the federal statute or constitutional provision is so clear, and the conduct is so bad, that it precludes qualified immunity even in the total absence of case law. Second, if the conduct is not bad enough that it violates a constitutional provision on its face, we look to case law that can be applied broadly to a number of factual situations. Third, and finally, if no broad case law is applicable, we turn to case law precedent that is tied to the facts.
Kesinger v. Herrington, 381 F.3d 1243, 1250 n. 6 (11th Cir.2004) (internal citations omitted).

1. Count One There is no dispute as to whether the Individual Defendants were operating in their discretionary capacities during the events at issue in the Complaint. And in regard to this count, the Individual Defendants do not dispute that the Plaintiffs have properly alleged the violation of a constitutional right.5 However, they contend that the law regarding strip searches6 is not “clearly established” within this circuit, entitling them to immunity.

5

The Individual Defendants concede that the claim in

Count One should proceed against Eslinger in his

official capacity. (Doc. 21 at 2).

6

In the Complaint, the Plaintiffs complain of both strip

searches and body cavity searches. It is possible that

one type of search but not the other violates the

Constitution on these facts. See, e.g., U.S. ex rel

Wolfish v. Levi, 439 F.Supp. 114 (D.C.N.Y.1977)

(upholding prison’s strip search policy but prohibiting

body cavity searches), reversed on other grounds, Bell

v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d

447 (1979). Because the distinction does not affect the disposition of the instant motions, for simplicity’s sake the remainder of this opinion will refer only to “strip searches”.
The Fourth Amendment to the United States Constitution provides, in pertinent part, that “[t]he right of the people to be secured in their persons ... against unreasonable searches and seizures, shall not be violated.” Pretrial detainees such as the Plaintiffs do not forfeit all constitutional protections by reason of their confinement. Justice v. City of Peachtree City, 961 F.2d 188, 192 (11th Cir.1992). The test of reasonableness under the Fourth Amendment requires “a balancing of the need for the particular search against the invasion of personal rights that the search entails.” Bell v. Wolfish, 441 U.S. 520, 559, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979). “Courts must consider the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted.” Id. It is axiomatic that a strip search represents a serious intrusion upon personal rights.
*4 The experience of disrobing and exposing one’s self for visual inspection by a stranger clothed with the uniform and authority of the state, in an enclosed room inside a jail, can only be seen as thoroughly degrading and frightening. Moreover, the imposition of such a search upon an individual detained for a lesser offense is quite likely to take that person by surprise, thereby exacerbating the terrifying quality of the event.
Justice at 192 (quoting John Does 1-100 v. Boyd, 613 F.Supp. 1514, 1522 (D.Minn.1985)). Given the uniquely dangerous nature of a detention facility, however, strip searches of inmates may sometimes be conducted with less than probable cause to believe that they possess money, drugs, weapons, or other contraband. Bell at 560.
The United States Court of Appeals for the Eleventh Circuit has repeatedly concluded that law enforcement officers may strip-search a pretrial detainee without running afoul of the Fourth Amendment only if they possess a “reasonable suspicion” that the detainee is concealing weapons or contraband.7 Skurstenis v. Jones, 236 F.3d 678, 682 (11th Cir.2000) (joining “every other circuit which has had occasion to review a similar policy” in holding county jail’s policy unconstitutional for failing to require reasonable suspicion as prerequisite to strip search); Wilson, 251 F.3d at 1343 (“Because Wilson was
3

Parilla v. Eslinger, Not Reported in F.Supp.2d (2005)

strip searched absent reasonable suspicion, we hold that the search of Wilson, as well as the jail’s policy authorizing her search, violated the Fourth Amendment prohibition against unreasonable searches and seizures.”); Cuesta v. School Bd. of Miami-Dade County, Fla., 285 F.3d 962, 969 n. 6 (11th Cir.2002) (“The County argues that the search should be analyzed under the Due Process Clause of the Fourteenth Amendment. Under the law of this circuit, however, a strip search performed without reasonable suspicion violates the Fourth Amendment rights of the individual searched.”); Justice at 193 (“We hold that law enforcement officers may conduct a strip search of a juvenile in custody, even for a minor offense, based upon reasonable suspicion to believe that the juvenile is concealing weapons or contraband.”).

7

Defendants make no claim that they had such

reasonable suspicion.

Recently, however, the Eleventh Circuit has appeared to retreat from these pronouncements. Sitting en banc, the court in Evans v. Stephens, 407 F.3d 1272 (11th Cir.2005) (henceforth Evans II ) stated in dicta that “[m]ost of us are uncertain that jailers are required to have a reasonable suspicion of weapons or contraband before strip searching-for security and safety purposes-arrestees bound for the general jail population.” Evans II at 1278. An earlier decision, Evans v. City of Zebulon, 351 F.3d 485, 490 (11th Cir.2003) (henceforth Evans I ), vacated by Evans v. City of Zebulon, 364 F.3d 1298 (11th Cir.2004), had announced that “[a]rrestees who are to be detained in the general jail population can constitutionally be subjected to a strip search only if the search is supported by reasonable suspicion that such a search will reveal weapons or contraband.” The Evans II court stated that this passage “doubtlessly contributed to causing some judges to vote for en banc rehearing” of Evans I. Evans II at 1278.8 Subsequently, in Hicks v. Moore, 422 F.3d 1246, 1251 n. 5 (11th Cir.2005), the court-citing to the discussion in Evans II-again questioned, in dicta, whether a county jail’s “indiscriminate strip-search practice” violated the Fourth Amendment. Because the plaintiff in Hicks had been arrested for a crime of violence-family violence battery-the court concluded that reasonable suspicion supported the search, mooting the question of whether jailers lacking such suspicion could constitutionally strip search their charges. Id. at 1252.

8

Because the strip search in Evans II was performed in

hopes of finding evidence, rather than for purposes of

safety or security, the Evans II court did not have the

opportunity to reassess the standard applicable to a

custodial strip search such as the ones at issue in this

case. Evans II at 1279.

*5 The Individual Defendants contend that Evans II and, to a lesser extent, Hicks have muddied the waters in this Circuit with regard to the constitutionality of strip searches, and that they therefore cannot be said to have violated clearly established law. At least one district court in this circuit has accepted a similar argument, stating that “if the majority of the Eleventh Circuit continues to perceive room to debate the contours of this constitutional right, it seems to this Court that no state official could justifiably be charged with having ‘fair warning’ that conducting a strip search absent a reasonable suspicion of contraband violates the law.” Powell v. Barrett, 376 F.Supp.2d 1340, 1349 (N.D.Ga.2005). “Put another way, this Court cannot characterize a state official’s doubt in the existence of a constitutional rule ‘unreasonable’ if his uncertainty is shared by a majority of the Eleventh Circuit Court of Appeals.”9

9

The Powell court also distinguished its result from the

result in Wilson-which held that reasonable suspicion

was required-on the grounds that the searches at issue

in its case were less intrusive than those at issue in

Wilson. Powell at 1349-50.

Respectfully, this Court reaches the opposite conclusion. The dicta in Evans II and Hicks may lead a reasonable observer to doubt whether the law in this Circuit regarding strip searches should remain so, but there is no doubt that that law is clearly established. Indeed, the Eleventh Circuit stated as much in Hicks: “We personally question that such a practice violates the Fourth Amendment.... But we accept that ‘reasonable suspicion’ is required by the law of the Circuit.” Hicks at 1251 n. 5. The Eleventh Circuit’s repeated pronouncements provided more than fair warning to the Individual Defendants that strip searches were unlawful in the absence of reasonable suspicion.
The Individual Defendants also cite to several state court cases apparently concluding that Florida Statute § 901.211-which makes probable cause (rather than reasonable suspicion) a prerequisite for some10 strip searches by law enforcement officers-has altered the (federal) constitutional requirements for such searches. But even if one assumes that principles of federal law that have been clearly established by the Court of Appeals for the Eleventh Circuit can be “unsettled” by state appeals court decisions, these decisions do not assist the Individual Defendants, as they do not challenge the Eleventh Circuit’s reasonable suspicion standard. Although a law enforcement officer might review the state cases and be uncertain as to whether something more than reasonable suspicion was sometimes required for strip searches in this state, he or she could have no doubt that the Fourth Amendment still mandates at least that much. Because the law on this point is clearly established,
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Parilla v. Eslinger, Not Reported in F.Supp.2d (2005)

the Individual Defendants are not entitled to qualified immunity in regard to Count One.

10

The statute provides in pertinent part that no person

arrested for “a traffic, regulatory, or misdemeanor

offense, except in a case which is violent in nature,

which involves a weapon, or which involves a

controlled substance” shall be strip searched unless

there is probable cause to believe the person is

concealing a weapon, a controlled substance, or stolen

property, or unless a judge at first appearance has found

that the person cannot be released on bond or

recognizance. Fla. Stat. § 901.211(2). It does not appear

that this probable cause requirement would apply to the

Plaintiffs in this case. See Welch v. Rice, 636 So.2d 172

(Fla. 2d DCA 1994) (holding that person arrested for

failure to appear had not been arrested for a traffic,

regulatory, or misdemeanor offense and therefore Fla.

Stat. § 901.211(2) did not apply).

2. Count Two Florida Statute § 901.211 requires law enforcement officers, in all cases, to get written permission from a supervising officer before performing a strip search. Fla. Stat. § 901.211(5). In their second Count, Plaintiffs allege that the Defendants failed to get (or require) such authorization before performing the searches at issue here, resulting in a separate constitutional violation from that alleged in Count One. Specifically, the Plaintiffs contend that Florida Statute § 901.211(5) creates a liberty interest, and the Defendants’ failure to follow the statute deprived them of that interest without due process, a Fourteenth Amendment violation.
*6 Both sides acknowledge that a state can, under proper circumstances, create a liberty interest subject to protection by the Fourteenth Amendment. Sandin v. Conner, 515 U.S. 472, 483-84, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995). They spend a significant amount of energy discussing the standards governing the creation of such an interest and whether Florida Statute § 901.211 satisfies those standards. But the Court finds that this discussion misses the point.
In Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989), the Supreme Court announced that all claims that law enforcement officers had used excessive force during an arrest, investigatory stop, or other seizure were to be analyzed under the Fourth Amendment’s reasonableness standard rather than under a substantive due process approach. “Because the Fourth Amendment provides an explicit textual source of constitutional protection against this sort of physically intrusive governmental conduct, that Amendment, not the more generalized notion of ‘substantive due process,’ must be the guide for analyzing these claims.” Id. at 395.

The Fourth Amendment also provides an explicit textual source of constitutional protection against the sort of intrusive searches alleged in this complaint. In Skurstenis, the Eleventh Circuit Court of Appeals affirmed the district court’s decision to analyze the plaintiff’s claims solely under the Fourth Amendment, stating that “where an enumerated constitutional right specifically applies to a claimed violation, the claim should be analyzed only as a possible violation of that enumerated right, not under the generalized notion of substantive due process.” Skurstenis, 236 F.3d at 681 n. 3 (citing Graham ). And see Cuesta, 285 F.3d at 969 n. 6 (rejecting argument that search should be analyzed under Due Process Clause of Fourteenth Amendment because “[u]nder the law of this circuit ... a strip search performed without reasonable suspicion violates the Fourth Amendment rights of the individual searched.”).
On the facts alleged in the Amended Complaint, the Plaintiffs’ strip search claims are Fourth Amendment claims, not due process claims. Therefore, Count Two must be dismissed. Moreover, although this point was not raised by the Defendants, the same rationale requires dismissal of the Plaintiffs’ Fourteenth Amendment claims in Count One.

3. Count Three11

11

As in Count One, the Plaintiffs allege in Count Three

that their continued detentions violated their rights

under both the Fourth and Fourteenth amendments.

(Doc. 20 at 23). However, binding precedent suggests

that false imprisonment claims such as those asserted in

Count Three are Fourteenth Amendment claims only.

See Douthit v. Jones, 619 F.2d 527, 532 (5th Cir.1980)

(stating that Section 1983 plaintiff must show “that the

defendant sheriff and deputy sheriff imprisoned him in

violation of his Fourteenth Amendment due process

rights”). In Bonner v. City of Prichard, 661 F.2d 1206

(11th Cir.1981), the United States Court of Appeals for

the Eleventh Circuit adopted as binding precedent all

decisions of the United States Court of Appeals for the

Fifth Circuit handed down prior to the close of business

on September 30, 1981. Again, although not raised by

the Defendants, this rationale requires the dismissal of

the Fourth Amendment claims in Count Three.

The Plaintiffs allege that all but two of their number were detained for approximately five hours after a court order for their immediate release was received at the Jail. (One of the Plaintiffs alleges he was detained for about 14 hours after his family paid his bond; the remaining Plaintiff does not raise a delay claim.) The Individual Defendants contend that the delays in releasing the Plaintiffs do not rise to the level of a constitutional violation. Alternatively, they argue that even if such a
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Parilla v. Eslinger, Not Reported in F.Supp.2d (2005)
delay is constitutional, the law is not clearly established as to the precise number of hours that would constitute an unreasonable delay, entitling them to qualified immunity.
*7 The constitutional right to be free from continued detention after it is known that the detainee is entitled to release is clearly established, both in this Circuit and others. Cannon v. Macon County, 1 F.3d 1558, 1562-63 (11th Cir.1993) (citing cases). Obviously, such a release need not be instantaneous to satisfy the Fourteenth Amendment. As the Individual Defendants point out, the former Fifth Circuit has held that in a false imprisonment situation a sheriff’s duty to his prisoner “is not breached until the expiration of a reasonable time for the proper ascertainment of the authority upon which his prisoner is detained.” Whirl v. Kern, 407 F.2d 781, 792 (5th Cir.1969). However, Whirl involved a sheriff who claimed he failed to release a detainee for nine months because he was not apprised of the dismissal of the indictments against the detainee. Id. at 785. The alleged delays in this case are shorter, but the allegations are more troubling. The Defendants are alleged to have simply refused to release the Plaintiffs-despite a court order to do so-pursuant to an official policy, practice, or custom. (Doc. 20 at 24-25).
To this Court, such an unjustified delay is so obviously a violation of every citizen’s due process rights that it precludes qualified immunity even in the absence of case law directly on point. Kesinger, 381 F.3d at 1250 n. 6. But even if one were to conclude that such unjustified delays do not violate the Fourteenth Amendment on its face, case law covering analogous situations provides fair warning that such delays are constitutionally impermissible. See, e.g, County of Riverside v. McLaughlin, 500 U.S. 44, 56, 111 S.Ct. 1661, 114 L.Ed.2d 49 (1991) (in Fourth Amendment case requiring reasonably prompt probable cause hearings after warrantless arrests, stating that examples of unreasonable delays include “delays for the purpose of gathering additional evidence to justify the arrest, a delay motivated by ill will against the arrested individual, or delay for delay’s sake.” ) (emphasis added). The Individual Defendants are not entitled to qualified immunity in regard to Count Three.
4. Supervisory Liability Eslinger raises a separate argument that he is entitled to dismissal of the claims against him. Briefly stated, he contends that the Plaintiffs have not alleged that he was personally involved in any of the conduct at issue, that this means they are suing him for some type of supervisory liability, and that the Complaint does not sufficiently allege any of the bases-such as participation, causation, or notice-required for such liability.
It is true that supervisory officials are not liable under

Section 1983 for the unconstitutional acts of their subordinates on the basis of respondeat superior or vicarious liability. Cottone v. Jenne, 326 F.3d 1352, 1360 (11th Cir.2003). Instead, supervisory liability under Section 1983 occurs either when the supervisor personally participates in the alleged unconstitutional conduct or when there is a causal connection between the actions of a supervising official and the alleged constitutional deprivation. Id. However, in the instant case, Eslinger is alleged to have been responsible for “making, implementing, allowing, authorizing, or acquiescing in the policies, practices, and customs” at issue in this case. (Doc. 20 at 3-4). He is also alleged to have authorized or permitted the strip search policy, or acquiesced in Defendants Tidwell and Diggs creating and implementing the policy that resulted in those searches. (Doc. 20 at 22). And the Plaintiffs make identical allegations in regard to the alleged policy of unreasonably lengthy detentions. (Doc. 20 at 25).
*8 These allegations demonstrate that the Plaintiffs seek to impose liability on Sheriff Eslinger, not on the basis of respondeat superior, but on the basis of his own acts, such as making or authorizing the policy that resulted in the strip searches. See Cottone at 1362 (noting that plaintiffs failed to allege, inter alia, “any affirmative custom or policy implemented by the supervisory defendants that played a role” in the constitutional violations at issue, and concluding that complaint therefore did not allege the causal connection required to impose supervisory liability).
5. Seminole County As was the case with Eslinger, Seminole County argues that it cannot be held liable on the basis of respondeat superior. And the County is correct that municipalities cannot be held liable under Section 1983 solely based on a respondeat superior theory of liability. Monell v. New York City Dept. of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). “Municipalities may be held liable under Section 1983 only for acts for which the municipality itself is actually responsible, that is, acts which the municipality has officially sanctioned or ordered.” City of St. Louis v. Praprotnik, 485 U.S. 112, 123, 108 S.Ct. 915, 99 L.Ed.2d 107 (1988) (internal quotation omitted).
However, where a governmental entity delegates the final authority to make decisions, then those decisions necessarily represent official policy. Ancata v. Prison Health Services, Inc., 769 F.2d 700, 705 n. 9 (11th Cir.1985). Such a delegation, rather than respondeat superior, is the basis for the Plaintiff’s claims against the County. The Plaintiffs allege that the County “has delegated the management and operations of the Jail where the wrongs complained of herein occurred to the
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Parilla v. Eslinger, Not Reported in F.Supp.2d (2005)
Defendant Sheriff of Seminole County.” (Doc. 20 at 3).
Apparently in response to this alleged delegation, the County complains that the Sheriff is an independent constitutional officer, that he, his deputies, and the corrections officials at the Jail are not employees of the County, and that the County cannot be held responsible for their actions. However, the statutes cited by the County-which mostly deal with the Sheriff’s authority to run his office and oversee his deputies-do nothing to establish that the Seminole County Sheriff is “independent” of Seminole County, at least insofar as it comes to operation of the Seminole County Jail.
The County also cites to a Supreme Court decision that found that an Alabama county was not liable under Section 1983 for the actions of the county sheriff. McMillian v. Monroe County, Ala., 520 U.S. 781, 117 S.Ct. 1734, 138 L.Ed.2d 1 (1997), involved a former death row inmate whose conviction had been reversed. The former inmate sued the sheriff for allegedly suppressing exculpatory evidence. Id. at 1734. The Court found that the sheriff represented the state, not the county, when executing law enforcement duties, and that the County could therefore not be held liable for his actions under Section 1983. Id. at 1736.
*9 However, McMillian was decided on the basis of various provisions of Alabama law, such as a constitutional provision stating that “[t]he executive department shall consist of a governor, lieutenant governor, attorney-general, state auditor, secretary of state, state treasurer, superintendent of education, commissioner of agriculture and industries, and a sheriff for each county.” Id. at 1738 (emphasis added). The County points to no similar constitutional or statutory provisions, instead simply reciting that “under Florida’s statutory framework, the Sheriff is a Constitutionally independent officer who acts independent of the County.” (Doc. 24 at 4). This is not sufficient.
Moreover, a statutory provision cited by the County at the hearing in this matter-Florida Statute § 951.061-suggests that Eslinger represents the County in regard to jail operations. The statute provides that a county commission may adopt an ordinance designating the sheriff to be the

chief correctional officer of the county correctional system,12 after which the sheriff would operate and maintain the county’s jails. Fla. Stat. § 951.061(1). The statute strongly suggests that, at least in regard to jail operations, a Florida sheriff acts as a county decisionmaker, and his decisions therefore establish the County’s policy for purposes of Section 1983. Even in the absence of this statute, however, the County has not shown that, as a matter of law, it cannot be held liable for the actions of the Individual Defendants in operating the Jail.

12

Seminole County contends that it has not adopted such

an ordinance, a matter that, even if relevant, is not

appropriate for disposition at this stage of the

proceedings. It is undisputed that Sheriff Eslinger is

and was operating the Jail during the period at issue in

the Complaint.

IV. Conclusion In consideration of the foregoing, it is hereby
ORDERED that the Motion to Dismiss by Defendants Eslinger, Tidwell, and Diggs (Doc. 21) is GRANTED IN PART and DENIED IN PART. The Fourteenth Amendment claims in Count One, the entirety of Count Two, and the Fourth Amendment claims in Count Three of the First Amended Class Action Complaint (Doc. 20) are DISMISSED. And it is further
ORDERED that the Motion to Dismiss (Doc. 23) filed by Seminole County is DENIED.
DONE and ORDERED in Chambers, Orlando, Florida on December 2, 2005.
Parallel Citations
19 Fla. L. Weekly Fed. D 86
	  

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 Electronic Case Filing | U.S. District Court - Middle District of Florida -... https://ecf.flmd.uscourts.gov/cgi-bin/DktRpt.pl?242260927358278-L_3...

U.S. District Court Middle District of Florida (Orlando) CIVIL DOCKET FOR CASE #: 6:05-cv-00850-GAP-KRS

CLOSED

Parilla et al v. Eslinger et al Assigned to: Judge Gregory A. Presnell Referred to: Magistrate Judge Karla R. Spaulding Cause: 42:1983 Civil Rights Act

Date Filed: 06/09/2005 Date Terminated: 05/30/2007 Jury Demand: Plaintiff Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Plaintiff
Ronald M. Parilla Individually and on behalf of a Class of all others similarly situated

represented by Cullin Avram O'Brien Florida Justice Institute, Inc. 100 S.E. Second St. 4320 Bank of America Tower Miami, FL 33131-2309 786 525 3532 Email: cullinobrien@hotmail.com TERMINATED: 02/21/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED

J. Larry Hanks Larry Hanks, P.A. 6500 S. Highway 17-92 Fern Park, FL 32730 407/423-1231 Fax: 407/423-3066 Email: larrylaw@bellsouth.net LEAD ATTORNEY ATTORNEY TO BE NOTICED

Peter Michael Siegel Florida Justice Institute, Inc. 4320 Bank of America Tower 100 SE 2nd St Miami, FL 33131-2309 305/358-2081 Fax: 305-358-0910 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Randall Challen Berg, Jr. Florida Justice Institute, Inc. 4320 Bank of America Tower 100 SE 2nd St Miami, FL 33131-2309

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Plaintiff Alda Rugg Individually and on behalf of a Class of all others similary situated
Plaintiff Billy Cates Individually and on behalf of a Class of all others similarly situated

305/358-2081 Fax: 305/358-0910 Email: rcberg@bellsouth.net LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Cullin Avram O'Brien (See above for address) TERMINATED: 02/21/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED
J. Larry Hanks (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Peter Michael Siegel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Randall Challen Berg, Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Cullin Avram O'Brien (See above for address) TERMINATED: 02/21/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED
J. Larry Hanks (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Peter Michael Siegel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Randall Challen Berg, Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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Plaintiff Theresa Declue Individually and on behalf of a Class of all others similarly situated
Plaintiff Aileen Nunez Individually and on behalf of a Class of all others similarly situated
Plaintiff David W. Roberts Individually and on behalf of a Class of all others similarly situated

represented by Cullin Avram O'Brien (See above for address) TERMINATED: 02/21/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED
J. Larry Hanks (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Peter Michael Siegel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Randall Challen Berg, Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Cullin Avram O'Brien (See above for address) TERMINATED: 02/21/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED
J. Larry Hanks (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Peter Michael Siegel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Randall Challen Berg, Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Cullin Avram O'Brien (See above for address) TERMINATED: 02/21/2006 LEAD ATTORNEY

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Plaintiff Frantarshia Stafford Individually and on behalf of a Class of all others similarly situated
Plaintiff Kim Lemister Individually and on behalf of a Class of all others similarly situated

ATTORNEY TO BE NOTICED
J. Larry Hanks (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Peter Michael Siegel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Randall Challen Berg, Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Cullin Avram O'Brien (See above for address) TERMINATED: 02/21/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED
J. Larry Hanks (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Peter Michael Siegel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Randall Challen Berg, Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Cullin Avram O'Brien (See above for address) TERMINATED: 02/21/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED
J. Larry Hanks (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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Plaintiff Mr. Shane Bradley
V. Defendant Donald Eslinger Individually and in his capacity as Sheriff of Seminole County
Defendant Michael Tidwell Individually and in his official capacity as Director of the John E. Polk Correctional Facility

Peter Michael Siegel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Randall Challen Berg, Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Randall Challen Berg, Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by D. Andrew DeBevoise DeBevoise & Poulton, P.A. Lakeview Office Park, Suite 1010 1035 S. Semoran Blvd. Winter Park, FL 32792 407/673-5000 ext:231 Fax: 407/673-5059 Email: debevoise@debevoisepoulton.com ATTORNEY TO BE NOTICED
Thomas W. Poulton DeBevoise & Poulton, PA* Suite 1010 1035 S Semoran Blvd Winter Park, FL 32792 407/673-5000 ext: 225 Fax: 407/673-5059 Email: poulton@debevoisepoulton.com ATTORNEY TO BE NOTICED
represented by D. Andrew DeBevoise (See above for address) ATTORNEY TO BE NOTICED
Thomas W. Poulton (See above for address) ATTORNEY TO BE NOTICED

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Defendant David Diggs In his individual capacity Defendant Seminole County
Interested Party Marion E. Harmon

represented by D. Andrew DeBevoise (See above for address) ATTORNEY TO BE NOTICED
Thomas W. Poulton (See above for address) ATTORNEY TO BE NOTICED
represented by David T. White, III Rissman, Weisberg, Barrett, Hurt, Donahue & McLain, P.A. 201 E. Pine St., 15th Floor suite 1500 P.O. Box 4940 Orlando, FL 32802-4940 407/839-0120 Fax: 407-841-9726 Email: trey.white@rissman.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Henry W. Jewett, II Rissman, Weisberg, Barrett, Hurt, Donahue & McLain, P.A. 201 E. Pine St., 15th Floor P.O. Box 4940 Orlando, FL 32802-4940 407/839-0120 Fax: 407-841-9726 Email: skip.jewett@rissman.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Thomas A. Jackson Piccione, Keeley & Associates, Ltd. 122C S. COunty Farm Road Wheaton, IL 60187 (630) 653-8000 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 06/09/2005

#

Docket Text

1 COMPLAINT against Donald Eslinger, Michael Tidwell, David Diggs, Seminole County ; jury demand (Filing fee $ 250 receipt number 18583), filed by Billy Cates, Theresa Declue, Aileen Nunez, David W. Roberts, Ronald M. Parilla,

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06/09/2005 06/09/2005 06/09/2005 06/29/2005 06/29/2005 06/30/2005 06/30/2005
06/30/2005 06/30/2005 06/30/2005 07/07/2005 07/07/2005 07/07/2005

Frantarshia Stafford, Alda Rugg.(cbh) (Entered: 06/09/2005)
Summons issued as to Donald Eslinger, Michael Tidwell, David Diggs, Seminole County. (cbh) (Entered: 06/09/2005)
2 RELATED CASE ORDER AND NOTICE of designation under Local Rule 3.05 - track 2. Notice of pendency of other actions due within 11 days.Signed by Judge Gregory A. Presnell on 6/9/2005. (AKJ, ) (Entered: 06/09/2005)
3 INTERESTED PERSONS ORDER for Plaintiffs. Certificate of interested persons and corporate disclosure statement due within 11 days.Signed by Judge Gregory A. Presnell on 6/9/2005. (AKJ, ) (Entered: 06/09/2005)
4 NOTICE of Appearance by Thomas W. Poulton on behalf of Donald Eslinger, Michael Tidwell, David Diggs (Poulton, Thomas) (Entered: 06/29/2005)
5 NOTICE of Appearance by D. Andrew DeBevoise on behalf of Donald Eslinger, Michael Tidwell, David Diggs (DeBevoise, D.) (Entered: 06/29/2005)
6 INTERESTED PERSONS ORDER for Defendants Donald Eslinger, Michael Tidwell and David Diggs. Certificate of interested persons and corporate disclosure statement due within 11 days.Signed by Judge Gregory A. Presnell on 6/30/2005. (Counsel mailed/emailed)(AKJ, ) (Entered: 06/30/2005)
7 ORDER TO SHOW CAUSE to Plaintiffs' Billy Cates, Theresa Declue, Aileen Nunez, David W. Roberts, Ronald M. Parilla, Frantarshia Stafford, Alda Rugg for failure to respond or comply with the Related Case Order and Interested Persons Order. Response due within 11 days. Signed by Judge Gregory A. Presnell on 6/30/2005. (Counsel emailed)(AKJ, ) (Entered: 06/30/2005)
8 RESPONSE TO ORDER TO SHOW CAUSE re 7 filed by all Plaintiffs. (Berg, Randall) Modified on 7/1/2005 to reflect pleading was filed on behalf of all Plaintiffs (AKJ, ). (Entered: 06/30/2005)
9 CERTIFICATE of interested persons and corporate disclosure statement re 7 Order to show cause,, 8 Response to order to show cause, 3 Interested persons order by ALL plaintiffs. (Berg, Randall) Modified on 7/1/2005 to reflect pleading filed by ALL plaintiffs(AKJ, ). (Entered: 06/30/2005)
10 NOTICE of pendency of other actions re 7, 2, 8 order of compliance to Local Rule by ALL plaintiffs; Related case(s): no (Berg, Randall) Modified on 7/1/2005 to reflect pleading filed by ALL plaintiffs (AKJ, ). (Entered: 06/30/2005)
11 WAIVER OF SERVICE returned executed on 6/22/05 by Billy Cates, Theresa Declue, Aileen Nunez, David W. Roberts, Ronald M. Parilla, Alda Rugg. Waiver of Service sent on 6/10/05 as to Donald Eslinger, Michael Tidwell, David Diggs, Seminole County. (Berg, Randall) (Entered: 07/07/2005)
12 NOTICE of pendency of other actions re order of compliance to Local Rule by Donald Eslinger, Michael Tidwell, David Diggs Related case(s): No (Poulton, Thomas) (Entered: 07/07/2005)
13 CERTIFICATE of interested persons and corporate disclosure statement by Donald Eslinger, Michael Tidwell, David Diggs. (Poulton, Thomas) (Entered:

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07/11/2005 07/20/2005 07/21/2005 07/21/2005 07/25/2005
07/26/2005 08/02/2005
08/29/2005 08/31/2005 09/02/2005 09/02/2005 09/12/2005
09/13/2005 09/20/2005

07/07/2005)
14 CERTIFICATE of interested persons and corporate disclosure statement Amended by Donald Eslinger, Michael Tidwell, David Diggs. (Poulton, Thomas) (Entered: 07/11/2005)
15 NOTICE of Appearance by David T. White, III on behalf of Seminole County (White, David) (Entered: 07/20/2005)
16 INTERESTED PERSONS ORDER for Defendant Seminole County. Certificate of interested persons and corporate disclosure statement due by 8/1/2005.Signed by Judge Gregory A. Presnell on 7/21/2005. (AKJ, ) (Entered: 07/21/2005)
17 Joint MOTION to extend time to For Responsive Pleadings and for Motion on Determination of Class Status by Donald Eslinger, Michael Tidwell, David Diggs. (Poulton, Thomas) (Entered: 07/21/2005)
18 ENDORSED ORDER granting 17 Motion to extend time ; responsive pleadings for all defendants are due Sept. 2,2005, motion for class certification due 90 days after issuance of CMO. Signed by Judge Gregory A. Presnell on 7/25/2005. (Presnell, Gregory) (Entered: 07/25/2005)
19 CERTIFICATE of interested persons and corporate disclosure statement by Seminole County. (White, David) (Entered: 07/26/2005)
20 AMENDED COMPLAINT against all defendants, filed by Ronald M. Parilla. Related document: 1 Complaint, filed by David W. Roberts,, Ronald M. Parilla,, Alda Rugg,, Billy Cates,, Theresa Declue,, Aileen Nunez,, Frantarshia Stafford,.(O'Brien, Cullin) (Entered: 08/02/2005)
21 MOTION to dismiss and Memorandum of Law by Donald Eslinger, Michael Tidwell, David Diggs. (Poulton, Thomas) (Entered: 08/29/2005)
22 NOTICE of supplemental authority Regarding Motion to Dismiss by Donald Eslinger, Michael Tidwell, David Diggs (Poulton, Thomas) (Entered: 08/31/2005)
23 First MOTION to dismiss Complaint by Seminole County. (White, David) (Entered: 09/02/2005)
24 MEMORANDUM in support re 23 Motion to dismiss, 1 Complaint, filed by Seminole County. (White, David) (Entered: 09/02/2005)
25 Unopposed MOTION for Extension of Time to File Response/Reply as to 21 MOTION to dismiss and Memorandum of Law, 22 Notice of supplemental authority, 23 First MOTION to dismiss Complaint, 24 Memorandum in support by Billy Cates, Theresa Declue, Aileen Nunez, David W. Roberts, Ronald M. Parilla, Frantarshia Stafford, Alda Rugg. (Berg, Randall) (Entered: 09/12/2005)
26 ENDORSED ORDER granting 25 Motion for Extension of Time to File Response/Reply . Signed by Judge Gregory A. Presnell on 9/13/2005. (Presnell, Gregory) (Entered: 09/13/2005)
27 ORDER TO SHOW CAUSE to Plaintiffs why case should not be dismissed for failure to file the Case Management Report pursuant to L.R. 3.10. Response due within 11 days.Signed by Judge Gregory A. Presnell on 9/20/2005. (Counsel

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09/24/2005 09/27/2005
09/29/2005 10/04/2005 10/05/2005 10/05/2005
10/05/2005 10/12/2005 10/12/2005 10/26/2005 10/28/2005
12/05/2005

mailed/emailed)(AKJ, ) (Entered: 09/20/2005)
28 RESPONSE TO ORDER TO SHOW CAUSE re 27 filed by Billy Cates, Theresa Declue, Aileen Nunez, David W. Roberts, Ronald M. Parilla, Frantarshia Stafford, Alda Rugg. (Berg, Randall) (Entered: 09/24/2005)
29 RESPONSE in opposition re 23 First MOTION to dismiss Complaint, 21 MOTION to dismiss and Memorandum of Law and 22 Notice of Supplemental Authority filed by defendants filed by Billy Cates, Theresa Declue, Aileen Nunez, David W. Roberts, Ronald M. Parilla, Frantarshia Stafford, Alda Rugg. (Berg, Randall) (Entered: 09/27/2005)
30 AMENDED Certificate of Interested Persons and Corporate Disclosure Statement by Billy Cates, Theresa Declue, Aileen Nunez, David W. Roberts, Ronald M. Parilla, Frantarshia Stafford, Alda Rugg. (Berg, Randall) Modified on 9/30/2005 (ce, ). (Entered: 09/29/2005)
31 CASE MANAGEMENT REPORT. (Berg, Randall) (Entered: 10/04/2005)
32 CASE MANAGEMENT AND SCHEDULING ORDER.Signed by Judge Gregory A. Presnell on 10/5/2005. (TKW, ) (Entered: 10/05/2005)
33 Joint MOTION for Extension of Time to File Motions to Amend Pleadings or to Add Parties by Billy Cates, Theresa Declue, Aileen Nunez, David W. Roberts, Ronald M. Parilla, Frantarshia Stafford, Donald Eslinger, Michael Tidwell, David Diggs, Seminole County, Alda Rugg. (Berg, Randall) (Entered: 10/05/2005)
CASE REFERRED to mediation, to be completed by 10/31/06. Jay Cohen appointed as mediator (copy of order mailed). (cbh) (Entered: 10/06/2005)
34 NOTICE of Hearing on Motion 23 First MOTION to dismiss Complaint, 21 MOTION to dismiss and Memorandum of Law: Motion Hearing set for 10/28/2005 09:30 AM in Courtroom 3 before Judge Gregory A. Presnell. (TKW, ) (Entered: 10/12/2005)
35 ORDER granting 33 Motion for Extension of Time to File. Due date for filing any motions to add parties or to amend pleadings is extended to 2/1/06. Signed by Judge Gregory A. Presnell on 10/12/2005. (TKW, ) (Entered: 10/12/2005)
36 Amended NOTICE of Hearing on 23 First MOTION to dismiss Complaint, 21 MOTION to dismiss and Memorandum of Law: Motion Hearing set for 10/28/2005 01:00 PM (rescheduled from 9:30 AM) in Courtroom 3 before Judge Gregory A. Presnell. (TKW, ) (Entered: 10/26/2005)
37 MINUTE ENTRY for proceedings held before Judge Gregory A. Presnell : Motion Hearing held on 10/28/2005 re 23 First MOTION to dismiss Complaint filed by Seminole County,, 21 MOTION to dismiss and Memorandum of Law filed by Donald Eslinger,, David Diggs,, Michael Tidwell,. Parties present oral argument. Court takes the matter under advisement and will issue a written order. Court Reporter: Diane Peede (AKJ, ) (Entered: 10/28/2005)
38 ORDER granting in part and denying in part 21 Motion to dismiss: The Fourteenth Amendment claims in Count One, the entirety of Count Two, and the Fourth Amendment claims in Count Three of the First Amended Class Action

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12/16/2005 12/16/2005 12/19/2005 12/23/2005
12/27/2005 02/02/2006 02/02/2006 02/03/2006 02/03/2006 02/17/2006 02/21/2006 04/20/2006 04/20/2006 04/20/2006 04/21/2006

Complaint are dismissed; denying 23 Motion to dismiss filed by Seminole County. Signed by Judge Gregory A. Presnell on 12/5/2005. (TKW, ) (Entered: 12/05/2005)
39 ANSWER to amended complaint by Seminole County.(White, David) Modified on 12/20/2005 to edit-out text (cbh). (Entered: 12/16/2005)
40 ANSWER to amended complaint and Affirmative Defenses by Donald Eslinger, Michael Tidwell, David Diggs.(Poulton, Thomas) (Entered: 12/16/2005)
41 NOTICE of change of address by Randall Challen Berg, Jr (Berg, Randall) (Entered: 12/19/2005)
42 Joint MOTION for Extension of Time to File Motion for Class Certification and any Motions to Amend the Pleadings or to Add Parties by all parties. (Attachments: # 1 Text of Proposed Order Agreed Order)(Berg, Randall) (Entered: 12/23/2005)
43 ENDORSED ORDER granting 42 Motion for Extension of Time . Signed by Judge Gregory A. Presnell on 12/27/2005. (Presnell, Gregory) (Entered: 12/27/2005)
44 Joint MOTION to substitute party - MEDIATOR by all parties. (Poulton, Thomas) (Entered: 02/02/2006)
45 Joint MOTION to extend time to file motions for class certification, to amend pleadings or to add parties until May 1, 2006 by all parties. (Berg, Randall) (Entered: 02/02/2006)
46 ORDER granting 44 Motion to substitute mediator; Terrance Schmidt of Jacksonville, Florida is appointed mediator in this case . Signed by Judge Gregory A. Presnell on 2/3/2006. (TKW, ) (Entered: 02/03/2006)
47 ENDORSED ORDER granting 45 Motion to extend time . Signed by Judge Gregory A. Presnell on 2/3/2006. (Presnell, Gregory) (Entered: 02/03/2006)
48 MOTION for Cullin Avram O'Brien to withdraw as attorney by all plaintiffs. (O'Brien, Cullin) (Entered: 02/17/2006)
49 ORDER granting 48 Motion to withdraw as attorney. . Signed by Judge Karla R. Spaulding on 2/21/2006. (MDP, ) (Entered: 02/21/2006)
50 AMENDED COMPLAINT Second Amended Class Action Comp. against all defendants, filed by all plaintiffs.(Berg, Randall) (Entered: 04/20/2006)
51 Joint MOTION for Extension of Time to File Motions for Class Certification and to Amend Pleadings by all parties. (Berg, Randall) (Entered: 04/20/2006)
52 STIPULATION re 50 Amended complaint Defendants' Consent to file Second Amended Complaint by Donald Eslinger, Michael Tidwell, David Diggs, Seminole County. (Berg, Randall) (Entered: 04/20/2006)
53 ENDORSED ORDER granting 51 Motion for Extension of Time to File . Signed by Judge Gregory A. Presnell on 4/21/2006. (Presnell, Gregory) (Entered: 04/21/2006)

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04/27/2006 05/01/2006 05/01/2006 05/02/2006 05/04/2006 07/27/2006 07/28/2006 09/28/2006
09/29/2006 11/28/2006 11/29/2006 12/15/2006 12/18/2006 12/29/2006

54 ANSWER to amended complaint by Seminole County.(White, David) (Entered: 04/27/2006)
55 MEDIATION REPORT Hearing held on 03/27/06 Hearing outcome: unsuccessful but continuing to discuss settlement(Berg, Randall) (Entered: 05/01/2006)
56 Unopposed MOTION for Extension of Time to File Response/Reply as to 50 Amended complaint by Donald Eslinger, Michael Tidwell, David Diggs. (Poulton, Thomas) (Entered: 05/01/2006)
57 ORDER granting 56 Motion for Extension of Time to File Response/Reply . Signed by Judge Karla R. Spaulding on 5/2/2006. (MDP, ) (Entered: 05/02/2006)
58 ANSWER to amended complaint and Affirmative Defenses to Second Amended Class Action Complaint by Donald Eslinger, Michael Tidwell, David Diggs.(Poulton, Thomas) (Entered: 05/04/2006)
59 Joint MOTION to extend time to Filing Class Certification Motions, Exchange of Expert Witness Reports, Discovery, and Dispositive Motions, for a Period of Two Months by all parties. (Poulton, Thomas) (Entered: 07/27/2006)
60 ORDER granting 59 Motion to extend time and entering AMENDED CASE MANAGEMENT AND SCHEDULING ORDER . Signed by Judge Gregory A. Presnell on 7/28/2006. (TKW, ) (Entered: 07/28/2006)
61 NOTICE of Settlement and Request to Leave Case Open for Filing of Settlement Documents by Billy Cates, Kim Lemister, Theresa Declue, Shane Bradley, Aileen Nunez, David W. Roberts, Ronald M. Parilla, Frantarshia Stafford, Donald Eslinger, Michael Tidwell, David Diggs, Seminole County, Alda Rugg (Berg, Randall) (Entered: 09/28/2006)
62 ORDER re 61 Notice of Settlement that the parties are to file their settlement documents within 60 days of the date of this Order. Signed by Judge Gregory A. Presnell on 9/29/2006. (TKW, ) (Entered: 09/29/2006)
63 Joint MOTION for Extension of Time to File Stipulation of Settlement and incorporated Memo of Law by all parties. (Berg, Randall) (Entered: 11/28/2006)
64 ENDORSED ORDER granting 63 Motion for Extension of Time to File settlement; now due December 15th. Signed by Judge Gregory A. Presnell on 11/29/2006. (Presnell, Gregory) (Entered: 11/29/2006)
65 Joint MOTION for Extension of Time to File Stipulation of Settlement by all parties. (Berg, Randall) (Entered: 12/15/2006)
66 ENDORSED ORDER granting 65 Motion for Extension of Time to File; now due Jan. 2,2007. Signed by Judge Gregory A. Presnell on 12/18/2006. (Presnell, Gregory) (Entered: 12/18/2006)
67 Joint MOTION to certify class Provisionally and Settlement of Class Action by all parties. (Attachments: # 1 Text of Proposed Order (Proposed) Order for Preliminary Approval of Settlement of Class Action# 2 Exhibit Stipulation of Settlement# 3 Exhibit Exhibit A to Proposed Order for Preliminary Approval of Settlement of Class Action# 4 Exhibit Exhibit B to Proposed Order for

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12/29/2006 01/04/2007 01/04/2007
01/04/2007
01/24/2007
01/25/2007 01/29/2007 02/09/2007 02/13/2007 02/23/2007 03/13/2007 03/13/2007 04/25/2007

Preliminary Approval of Settlement of Class Action# 5 Exhibit Exhibit 1 to Stipulation of Settlement# 6 Exhibit Exhibit 2 to Stipulation of Settlement# 7 Exhibit Exhibit 3 Stipulation of Settlement)(Berg, Randall) (Entered: 12/29/2006)
68 Joint MOTION to certify class Provisionally and for Status Confernce on Joint Motion for Preliminary Approval of Provisional Settlement Class and Settlement of Class Action by all parties. (Berg, Randall) (Entered: 12/29/2006)
69 ORDER granting 68 Motion for hearing regarding motion to certify class. Signed by Judge Gregory A. Presnell on 1/4/2007. (TKW, ) (Entered: 01/04/2007)
70 NOTICE of Hearing on Motion 67 Joint MOTION to certify class Provisionally and Settlement of Class Action : Motion Hearing set for 1/24/2007 at 01:00 PM in Courtroom 3 before Judge Gregory A. Presnell. (TKW, ) Modified on 1/5/2007 (TKW, ). (Entered: 01/04/2007)
71 Joint MOTION for Hearing re 67 Joint MOTION to certify class Provisionally and Settlement of Class Action by all parties. (Berg, Randall) Modified on 1/4/2007: Motion terminated, request for hearing ruled on by Order 69 (cbh). (Entered: 01/04/2007)
72 MINUTE ENTRY for proceedings held before Judge Gregory A. Presnell : Motion Hearing held on 1/24/2007 re 67 Joint MOTION to certify class Provisionally and Settlement of Class Action filed by Frantarshia Stafford, Theresa Declue, Alda Rugg, Ronald M. Parilla, David Diggs, Aileen Nunez, Seminole County, David W. Roberts, Kim Lemister, Billy Cates, Michael Tidwell, Donald Eslinger, Shane Bradley. Counsel to provide a proposed order. Court goes over proposed settlement agreement. Court Reporter: Diane Peede (AKJ, ) (Entered: 01/24/2007)
73 ORDER for preliminary approval of settlement of class action. Signed by Judge Gregory A. Presnell on 1/25/2007. (EAD) (Entered: 01/25/2007)
74 NOTICE canceling Final Pretrial/Jury Trial hearing scheduled for 3/7/07 and 4/2/07. (copies mailed/emailed) (AKJ, ) (Entered: 01/29/2007)
75 Unopposed MOTION to extend time to publish initial newspaper notice by Donald Eslinger. (Poulton, Thomas) (Entered: 02/09/2007)
76 ENDORSED ORDER granting 75 Motion to extend time. Signed by Judge Gregory A. Presnell on 2/13/2007. (EAD) (Entered: 02/13/2007)
77 Letter from Bonnie Retalic Kozimor requesting she be excluded from this action filed by Howard S. Marks. (LAK) (Entered: 02/23/2007)
78 Letter from Asier Murua requesting to be excluded from this class action. (cbh) (Entered: 03/14/2007)
79 Letter from Dr. Linda Tavernier-Almada, requesting to be excluded from this class action. (cbh) (Entered: 03/14/2007)
80 NOTICE by Donald Eslinger, Michael Tidwell, David Diggs regarding Settlement Compliance Status (Poulton, Thomas) (Entered: 04/25/2007)

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05/02/2007 05/17/2007 05/21/2007 05/23/2007 05/24/2007 05/29/2007 05/29/2007 05/29/2007
05/30/2007

81 AMENDED NOTICE of Hearing: Fairness Hearing set for 5/24/2007 at 01:15 PM (previously 1:00 PM) in Courtroom 3 before Judge Gregory A. Presnell. (TKW, ) (Entered: 05/02/2007)
82 NOTICE by Donald Eslinger, Michael Tidwell, David Diggs re 73 Order of Compliance with order dated January 25, 2007 (Poulton, Thomas) (Entered: 05/17/2007)
83 NOTICE by Billy Cates, Kim Lemister, Theresa Declue, Shane Bradley, Aileen Nunez, David W. Roberts, Ronald M. Parilla, Frantarshia Stafford, Alda Rugg re 73 Order PLAINTIFFS VERIFIED NOTICE OF COMPLIANCE (Berg, Randall) (Entered: 05/21/2007)
85 NOTICE of filing Notice of Lien against Ronald M. Parilla by Marion E. Harmon (Attachments: (1) Notice of Lien)(cbh) (Entered: 05/24/2007)
84 MINUTE ENTRY for Fairness Hearing held before Judge Gregory A. Presnell : on 5/24/2007. Plaintiff's counsel will submit stipulated judgment. Court Reporter: Diane Peede (AD) (Entered: 05/24/2007)
86 AGREED ORDER AND JUDGMENT OF DISMISSAL; case dismissed with prejudice; clerk is directed to close the file. Signed by Judge Gregory A. Presnell on 5/29/2007. (TKW, ) (Entered: 05/29/2007)
87 NOTICE by Billy Cates, Kim Lemister, Theresa Declue, Shane Bradley, Aileen Nunez, David W. Roberts, Ronald M. Parilla, Frantarshia Stafford, Alda Rugg re 86 Order Notice of (Attachments: # 1 filing the Seminole County Sheriffs Offices jail records of Judy Hagner)(Berg, Randall) (Entered: 05/29/2007)
88 NOTICE by Billy Cates, Kim Lemister, Theresa Declue, Shane Bradley, Aileen Nunez, David W. Roberts, Ronald M. Parilla, Frantarshia Stafford, Alda Rugg re 86 Order of the (Attachments: # 1 filing of Judy Hagner claims form and all correspondence received by plaintiffs counsel)(Berg, Randall) (Entered: 05/29/2007)
89 AMENDED ORDER AND JUDGMENT OF DISMISSAL amending 86 Agreed Order and Judgment of Dismissal. Signed by Judge Gregory A. Presnell on 5/30/2007. (EAD) (Entered: 05/30/2007)

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