Case 6:98-cv-00109-JEG Document 2 Filed 08/04/98 Page 1 of 13
ORIGINAL
FORM TO BE USED BY PRISONERS IN F ILING A COMPLA I NT
UNDER THE CIVIL RIGHTS ACT, 42 U .S .C. § 1983 in the UNITED STATES DISTRICT COURT for the SOUTHERN' DISTRICT of GEORGIA

0698 109

(Enter above full name of plaintiff or plaintiffs) v.
(Enter above full name of defendant or defendants)

U . S . DIS TRICT QfQRT Southern Dis tri ct of Ga .
Filed in Office
M.
19C~
Deputy Clerk
9- a o -~
NUNC PRO TUNC DATE

Previous lawsuits
A. Have you begun other lawsuits in state or federal court dealing with th' , a mc facts involved in this action? Yep No ~

if your answer to A is yes, describe each lawsuit in the space below . (If there is more than one lawsuit, describe the additional lawsuits on another piece of paper, using the same outline .)

Parties to this previous lawsuit:

Plaintiffs :

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Defendants: _~ (C'00yu) OWL-

2 . Court (if federal court, name the district ; if state court, name the county) : 11

3 . Docket number:

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4. Name of judge assigned to case :

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Case 6:98-cv-00109-JEG Document 2 Filed 08/04/98 Page 2 of 13
5 Disposition (for example, was the case dismissed? appealed? is it still pending?) :

~- 1' 6. Approximate date of filing lawsuit rC> c. . ~ r

7

Approximate date of disposition :

8

Were you allowed to proceed in forma pauperis (without pre ayment of

fees)? Yes Nn

B . While incarcerated or detained in any facility, have you brought any lawsuits in federal court which deal with facts other than those involved in this ac ~on? Yes ~ No

If your answer to B is yes, describe each lawsuit in the space below . (If there is more than one lawsuit, describe the additional lawsuits on another piece of paper, using the same outline .)

1 . Parties to previous lawsuit :

Plaintiffs :

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2. Court (name the district) : i

3

Docket number :

4 Name of judge assigned to case :

5 Disposition (for example, was the case dismissed? appealed? Is it still pending?) :

6 . Approximate date of filing lawsuit :

Case 6:98-cv-00109-JEG Document 2 Filed 08/04/98 Page 3 of 13 7. Approximate date of disposition : 8. Were you allowed to proceed in forma pauperis (without prep~ yment of fees)? Yes ;/ No
C . As to any lawsuit filed in federal court where you were allowed to proceed in forma pauperis, was any suit dismissed on the ground that it was frivolous, malicious, or failed to state a claim? Yes No If your answer to C is yes, name the court and docket number for each case :
II. Place of present confinement : A . Is there a prisoner grievance procedure in this institution? Yes No B . Did you present the facts relating to your complaint to the appropriate grievance committee? Yes No_i C . If your answer to B is yes : What steps did you take? zj %
2 . What was the result? z2Po j{~~4--- ~- z:- i// U{: y-el(
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Case 6:98-cv-00109-JEG Document 2 Filed 08/04/98 Page 4 of 13

3 . Did you appeal any adverse decision to the highest level poskKle in the administrative procedure? Yes r No

If yes, what was the result ?

k 1)4 32 . ,

D

if you did not utilize the prison grievance procedure, explain why not :

IV Parties

(In Item A below, list your name as plaintiff and current address . Provide the name and address of any additional plaintiffs on an attached sheet .)

A Name of plaintiff : Address :

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(]n Item B below, list the defendant's full name, rosition, place of employment, and current address . Provide the same information for any additional defendants in Item C below.)

B . Name of defendant : Position : Place of employment : Current Address :

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C . Additional defendants :

1 4

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Case 6:98-cv-00109-JEG Document 2 Filed 08/04/98 Page 12 of 13 V. Statement of Claim
State here as briefly as possible the FACTS in your case . Describe how each defendant is personally involved in the depriving you of your rights . You must include relevant times, dates, places, and names of witnesses . DO NOT GIVE LEGAL ARGUMENTS OR CITE ANY CASES OR STATUTES . If you intend to allege a number of related claims, number and set forth each claim in a separate paragraph . (Use as much space as you need . Attach extra sheets if necessary .)
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Case 6:98-cv-00109-JEG Document 2 Filed 08/04/98 Page 13 of 13
VI . Relief State briefly exact]}' what you want the court to do for you . Make no legal arguments . Cite no cases or statutes.

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I declare under penalty of perjury that the foregoing is true and correct .

Signed this (~ day of J L/

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Prisoner No .

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(~igna of Plai- ntiff

6

 
 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF GEORGIA
STATESBORO DIVISION

TRACY ANTHONY MILLER, Plaintiff, v.
HUGH SMITH, et al., Defendants.

:

:

:

:

:

CIVIL ACTION FILE

:

NO. 6:98-CV-109-JEG

:

:

:

UNITED STATES= MEMORANDUM OF LAW AS AMICUS CURIAE ON ISSUES UNDER THE AMERICANS WITH DISABILITIES ACT AND REHABILITATION ACT
THAT ARE LIKELY TO ARISE ON SUMMARY JUDGMENT OR AT TRIAL

INTRODUCTION

This lawsuit, originally filed pro se by Plaintiff Tracy Miller (“Miller”) in 1998, seeks

declaratory and injunctive relief and damages for conditions at Georgia State Prison (“GSP”) and

Augusta State Medical Prison (“ASMP”), two correctional facilities under the control of the

Georgia Department of Corrections (“GDOC”). Miller alleges, inter alia, violations of Title II of

the Americans with Disabilities Act of 1990 (“Title II” or “ADA”), 42 U.S.C. §§ 12131-12134,

and section 504 of the Rehabilitation Act of 1973 (“Section 504” or “Rehabilitation Act”), 29

U.S.C. § 794, as well as certain constitutional violations. Specifically, Miller alleges that GDOC1 has violated the ADA and Rehabilitation Act by routinely excluding him from, or

denying him the benefits of, the programs, services, and activities provided to other GSP and

ASMP inmates and otherwise discriminating against him because of his disability. Miller also

alleges that GDOC has violated Title II and Section 504 by failing to make its programs,

1 Defendants, who are various officials, entities, and subdivisions of GDOC, will be referred to as GDOC.
1

services, and activities readily accessible to and usable by him and other inmates with disabilities
by either making necessary physical modifications at GSP and ASMP or using legally permitted
alternative means of affording access.
The United States has participated informally in this case during settlement discussions
by conducting an on-site compliance review of GSP and ASMP under Title II and Section 504
and providing the Court and parties with technical assistance regarding architectural and
programmatic modifications necessary to achieve compliance with the ADA and Section 504.
The United States has also participated formally as an intervenor in this litigation on questions of
the constitutionality of the ADA under the Eleventh Amendment to the U.S. Constitution, an issue subsequently decided in the Goodman v. Georgia litigation.2 The United States has
otherwise not been a party to this litigation. As the federal agency that enforces, regulates, implements, coordinates, and provides technical assistance for the ADA and Section 504,3 the
United States respectfully submits the instant memorandum as amicus curiae on questions of law
under the ADA and Section 504 that will undoubtedly be addressed on summary judgment or at
trial.
2 See Brief for the United States as Petitioner, United States and Goodman v. Georgia, 546 U.S. 151 (2006) (Nos. 04-1203 and 04-1236). 3 See 42 U.S.C. §§ 12134(a), (c) (requiring Department of Justice to issue regulations implementing ADA requirements, including architectural standards, applicable to state and local governments); 28 C.F.R. §§ 35.190 (authorizing the Department to issue policy guidance to ensure consistent interpretation of Title II and designating it as the agency responsible for Title II enforcement for state and local government programs and facilities, including correctional institutions; Exec. Order 12,250 (assigning leadership role to Department in the coordination and enforcement of federal civil rights laws applicable to federally assisted programs, including Section 504); 28 C.F.R. pt. 41 (implementing Exec. Order. 12,250 and Department of Justice’s role in coordination of federal disability rights laws involving federal assistance); 28 C.F.R. pt. 42 subpt. G (Nov. 2, 1980) (establishing Section 504 requirements for recipients of Department of Justice financial assistance).
2

BACKGROUND
The Americans with Disabilities Act, 42 U.S.C. §§ 12101, et seq., as amended, is a
comprehensive civil rights law enacted to provide “a clear and comprehensive national mandate
for the elimination of discrimination” against individuals with disabilities. 42 U.S.C.
§ 12101(b)(1). Its coverage is accordingly broad, prohibiting discrimination on the basis of
disability in employment, state and local government programs and services, transportation
systems, telecommunications, commercial facilities, and the provision of goods and services
offered to the public by private businesses.
Title II of the ADA was enacted to broaden the coverage of Section 504, which prohibits
discrimination in any program or activity that receives federal financial assistance, including
programs and activities of state and local governments. Title II extends these protections to all
state and local government entities, including those receiving no federal funds. 4
4 Title II was modeled closely on Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, which prohibits discrimination on the basis of disability in federally conducted programs and in all of the operations of public entities that receive federal financial assistance. Title II provides that “[t]he remedies, procedures, and rights” set forth under Section 504 shall be available to any person alleging discrimination in violation of title II. 42 U.S.C. § 12133; see also 42 U.S.C. § 12201(a) (ADA must not be construed more narrowly than Rehabilitation Act). The ADA directs the Attorney General to promulgate regulations to implement title II, and requires those regulations to be consistent with preexisting federal regulations that coordinated federal agencies’ application of Section 504 to recipients of federal financial assistance, and interpreted certain aspects of Section 504 as applied to the federal government itself. 42 U.S.C. § 12134(a)(b). Title II thus extended Section 504’s pre-existing prohibition against disability-based discrimination in programs and activities (including state and local programs and activities) receiving federal financial assistance or conducted by the federal government itself to all operations of state and local governments, whether or not they receive federal assistance. The ADA and the Rehabilitation Act are generally construed to impose the same requirements. See Allmond v. Akal Sec., Inc., 558 F.3d 1312 (11th Cir. 2009); Cash v. Smith, 231 F.3d 1301, 1305(11th Cir, 2000). This principle follows from the similar language employed in the two acts. It also derives from the Congressional directive that implementation and interpretation of the two acts “be coordinated to prevent[ ] imposition of inconsistent or conflicting standards for the same requirements under the two statutes.” Baird ex rel. Baird v. Rose, 192 F.3d 462, 468 (4th Cir, 1999) (citing 42 U.S.C. § 12117(b)) (alteration in original). See also Yeskey v. Com. of Pa.
3

The substantive provisions of Title II and Section 504 are very similar. Title II provides:
[N]o qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.
42 U.S.C. § 12132. Section 504 provides:
No otherwise qualified individual with a disability in the United States . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance.
28 U.S.C. § 794(a).5
Congress explicitly delegated to the Department of Justice the authority to promulgate
regulations under both statutes. See 42 U.S.C. § 12134(a); 28 C.F.R. pt. 35 (Title II); 29 U.S.C.
§ 794(a); 28 C.F.R. pt. 41 (Section 504 coordination regulation); 28 C.F.R. pt. 42, subpt. G
(Section 504 regulation governing correctional institution grantees). Accordingly, the
Department=s regulations and interpretation thereof are entitled to substantial deference. See
Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984); Olmstead v. L.C.,
Dep’t of Corr., 118 F.3d 168, 170 (3d Cir. 1997) (“[A]ll the leading cases take up the statutes together, as we will.”), aff’d, 524 U.S. 206 (1998).
5 Under Title II, the term “[q]ualified individual with a disability means an individual with a disability who, with or without reasonable modifications to rules, policies, or practices, the removal of architectural, communication, or transportation barriers, or the provision of auxiliary aids and services, meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity.” 28 C.F.R. § 35.104. See also 28 C.F.R. § 42.540(l)(2) (definition of qualified individual for purposes of Section 504). Title II prohibits a public entity from using eligibility criteria that screen out or tend to screen out an individual with a disability or a class of individuals with disabilities “from fully and equally enjoying any service, program, or activity, unless such criteria can be shown to be necessary for the provision of the service, program, or activity being offered.” 28 C.F.R. § 35.130(b)(8). See also 28 C.F.R. § 42.503(b)(3) (Section 504 prohibition against use of discriminatory criteria). The essential eligibility criteria for programs, services, and activities in prisons are generally quite minimal B e.g., any prison inmate is generally eligible to participate in a prison=s transportation, classification, housing, showers, nutrition, medical, library, visitation, religious,
4

527 U.S. 581, 597-98 (1999); cf. Bragdon v. Abbott, 524 U.S. 624, 646 (1998) (citing same for Title III of the ADA); see also Auer v. Robbins, 519 U.S. 452, 461 (1977) (agency’s interpretation of its regulations “controlling unless plainly erroneous or inconsistent with the regulation”). Because this case involves the application and interpretation of the Department=s regulations and other guidance implementing Title II and Section 504, the United States has a direct interest in this case.
APPLICATION OF TITLE II AND SECTION 504 TO CORRECTIONAL INSTITUTIONS GENERALLY
In its investigation of the necessity for the ADA, Congress found that “discrimination against individuals with disabilities persists in such critical areas as employment, housing, . . . education, transportation, communication, recreation, institutionalization, health services, . . . and access to public services.” 42 U.S.C. § 12101(a)(3). Congress also found that
[I]ndividuals with disabilities continually encounter various forms of discrimination, including outright intentional exclusion, the discriminatory effects of architectural, transportation, and communication barriers, overprotective rules and policies, failure to make modifications to existing facilities and practices, exclusionary qualification standards and criteria, segregation, and relegation to lesser services, programs, activities, benefits, jobs, or other opportunities. 42 U.S.C. § 12101(a)(5). It is with this backdrop that the Supreme Court held in 1998 that “[s]tate prisons fall squarely within the statutory definition of ‘public entity,’” Pa. Dep=t of Corr. v. Yeskey, 524 U.S. 206, 290-10 (1998) (quoting 42 U.S.C. ' 12131(1)(B)) and that Title II of the ADA, therefore, “unmistakably includes State prisons and prisoners within its coverage.” Yeskey, 524 U.S. at 209 (Scalia, J.) (unanimous). The Court made clear that the various programs, services, and activities offered in correctional institutions are covered by the ADA and, therefore, are required
and recreation programs, services, and activities simply by virtue of incarceration. 5

to be accessible to individuals with disabilities even though participation in most of those programs is not voluntary. Yeskey, 524 U.S. at 211; Bircoll v. Miami-Dade County, 480 F.3d 1072, 1081 (11th Cir. 2007). “Modern prisons provide inmates with many recreational ‘activities,’ medical ‘services,’ and educational and vocational ‘programs,’ all of which at least theoretically ‘benefit’ the prisoners (and any of which disabled prisoners could be ‘excluded from participation in’).” Yeskey, 524 U.S. at 210 (citing Block v. Rutherford, 468 U.S. 576, 580 (1984) (referring to ‘contact visitation program’); Hudson v. Palmer, 468 U.S. 517, 552 (1984) (discussing ‘rehabilitative programs and services’); and Olim v. Wakinekona, 461 U.S. 238, 246 (1983) (referring to ‘appropriate correctional programs for all offenders’)); see also Phipps v. Sheriff of Cook County, 2009 WL 4146391, at **13-14, No. 07 C 3889 (N.D. Ill. Nov. 25, 2009) (finding showers, toilets, and sinks to constitute programs or services); Schmidt v. Odell, 64 F. Supp. 2d 1014, 1032-1033 (D. Kan. 1999) (describing ‘basic services’ of the jail to include the use of the toilet, shower, recreational areas, and obtaining meals). The specific issue resolved in Yeskey was Title II=s application to a ‘motivational boot camp.’ An inmate drug treatment program was another example of a program, service, and activity required to be accessible to inmates with disabilities under the ADA. 524 U.S. at 210, 211.
THE NONDISCRIMINATION REQUIREMENTS OF TITLE II AND SECTION 504 Title II and Section 504 contain broad prohibitions of discrimination against individuals
with disabilities. 42 U.S.C. § 12132; 29 C.F.R. § 794. The implementing regulation provides a general prohibition that mirrors the language of Section 202 of the ADA, and which is very similar in substance to Section 504. It provides: “No qualified individual with a disability shall, on the basis of disability, be excluded from participation in or be denied the benefits of the
6

services, programs, or activities of a public entity, or be subject to discrimination by any public
entity.” 28 C.F.R. § 35.130(a).
The regulation then provides specific prohibitions. In the correctional setting, these
include, but are not limited to, the following:
$ The outright denial of the benefits of a prison=s programs, services, and activities, 28 C.F.R. § 35.130(b)(1), such as excluding an inmate who uses a wheelchair from recreation privileges because there is no accessible recreation area, excluding an inmate from bathing because a prison does not have accessible shower facilities or will not provide necessary bathing assistance, or excluding an inmate with diabetes from a commissary program because the commissary does not sell any items the inmate can eat.
$ Providing an unequal, different, or separate opportunity to participate in programs, services, and activities, 28 C.F.R. § 35.130(b), such as placing an inmate with a low security classification in a maximum security setting because the inmate uses a wheelchair and requires an accessible cell, which the facility does not have available at the appropriate security classification, or providing an inmate who uses a wheelchair with only indoor recreational activities because the outdoor recreation area B or the route to it B is not accessible.
$ Engaging in contractual, licensing, or other arrangements that deny participation; provide unequal aids, benefits, or services; perpetuate discrimination; or otherwise limit enjoyment of any right, privilege, advantage, or opportunity, 28 C.F.R. §§ 35.130(b)(1), (3), such as transporting an inmate who uses a wheelchair unsafely in an inaccessible vehicle because the facility=s transportation contractor does not have accessible vehicles or denying the benefits of medical care to inmates with disabilities because the medical contractor does not provide appropriate medication to an inmate with HIV or a psychiatric disability.
$ Using eligibility criteria that screen out or tend to screen out people with disabilities, 28 C.F.R. § 35.130(b)(8), such as requiring inmates participating in anger management courses to be able to hear or requiring inmates who participate in a jobs or trustee program to be able to see, hear, or walk.
$ Failing to integrate inmates with disabilities, 28 C.F.R. § 35.130(d), such as segregating all inmates with a particular disability to one dorm, one class, or one meal time;
$ Failing to make reasonable modifications (sometimes referred to as reasonable accommodations) in rules, policies, practices, or procedures, 28 C.F.R. § 35.130(b)(7), such as not making an exception to a drug treatment program=s rule requiring inmates to be medication free in order to permit participation by an inmate who requires medication for a psychiatric disability.
7

$ Failing to provide auxiliary aids and services necessary to achieve effective communication with individuals with disabilities, 28 C.F.R. §§ 35.160-164, such as refusing to provide written materials in large print for an inmate with low vision to participate in a GED program or failing to procure a sign language interpreter for a deaf inmate to participate in a Ascared straight@ program. See Garcia v. McNeil, 2009 U.S. Dist. LEXIS 70511 at **21-33, No. 4:07cv474-SPM/WCS (N.D. Fla. June 22, 2009) (denying defendant=s motion for summary judgment on claim of appropriate auxiliary aids and services to achieve effective communication).
Ultimately, these provisions work together to prohibit all disability discrimination in all
of the programs, services, and activities of public entities. In the correctional context, where the
public entity has custody of an individual with a disability, such prohibitions also include failing
to provide critical healthcare and personal services (e.g., access to mammograms and pap
smears), necessary consumable medical supplies (e.g., sterile catheters, colostomy bags, and
diapers), durable medical equipment and other disability-related equipment (e.g., wheelchairs,
walkers, crutches, and canes), and personal assistance services (e.g., assistance in eating,
dressing, bathing, bowel and bladder management, transferring to and from a wheelchair, and
maintenance of a cell). See 28 C.F.R. § 35.130(a); see also 28 C.F.R. §§ 42.503, 42.511, 42.520-
522 (similar obligations under Section 504).
Additionally, as the Supreme Court has explained, Title II not only
[S]eeks to enforce th[e] prohibition on irrational disability discrimination. But it also seeks to enforce a variety of other basic constitutional guarantees, infringements of which are subject to more searching judicial review. [citations omitted] These rights include some . . . that are protected by the Due Process Clause of the Fourteenth Amendment.
Tennessee v. Lane, 541 U.S. 509, 523-24 (2004) (noting First Amendment right to access court
proceedings in case where court refused to move proceeding to first floor of existing courthouse
without elevator).
In the correctional context, Title II=s nondiscrimination mandate buttresses constitutional
guarantees, such as the Eighth Amendment=s protection against deliberate indifference to a 8

serious medical need. See United States v. Georgia, 546 U.S. 151, 157-58 (2006); Taylor v. Adams, 221 F.3d 1254, 1257 (11th Cir. 2000). Other cognizable violations of the Eighth Amendment may exist where harm “poses an unreasonable risk with respect to an inmate=s safety.” Rhodan v. Schofield, 2007 U.S. Dist. LEXIS 44593 at *31, No. 1:04-CV-2159-TWT (N.D. Ga. June 18, 2007) (denying summary judgment for defendant on deliberate indifference to inmate=s claim for wheelchair). The Eighth Amendment requires that inmates “be furnished with the basic human needs, one of which is reasonable safety.” Helling v. McKinney, 509 U.S. 25, 35 (1993). See also LaFaut v. Smith, 834 F.2d 389, 394 (4th Cir. 1987) (paraplegic inmate=s inability to access toilet facilities was violation of Eighth Amendment=s prohibition of cruel and unusual punishment); Schmidt v. Odell, 64 F. Supp. 2d 1014 (D. Kan. 1999) (forcing inmate who was double amputee to crawl around jail floor to access jail facilities was sufficient to proceed to jury on Eighth Amendment claim); Key v. Grayson, 179 F.3d 996 (6th Cir. 1999) (denying deaf inmate access to sex offender therapy program required for parole was constitutional violation).
Similarly, failing to provide auxiliary aids or services necessary for effective communication undermines First Amendment rights to free speech and petition the government. See Brown v. Ga. Dep=t of Corr., 2008 U.S. Dist. LEXIS 27127 at *5, No. 5:07-CV-79 (CAR) (M.D. Ga. Mar. 4, 2008). The panoply of Fourteenth Amendment procedural and substantive due process rights afforded inmates also can be violated or undermined where Title II and Section 504 nondiscrimination mandates are not met.
In the context of physical accessibility, a key component of Title II and Section 504 is the affirmative obligation of program accessibility B i.e., the requirement that all of a public entity=s programs, services, and activities be “readily accessible to and usable by individuals with disabilities.” See 28 C.F.R. §§ 35.149-151; see also 28 C.F.R. §§ 42.520-522. In the
9

correctional setting, this requirement has, inter alia, policy, transportation, housing, bathing, dining, medical, employment, education, visitation, and architectural components involving all aspects of prison operations that affect inmates, visitors, staff, and volunteers, ranging from executive level administration to the daily interactions that correctional officers have with inmates. The regulation defining the program accessibility obligations of prisons and other public entities under Title II have been in place since the early 1990s. The regulation setting out program accessibility obligations under Section 504 for recipients of federal financial assistance were issued long before that time.6
The program accessibility requirements of Title II are set out in Subpart D to the Title II regulation, which includes three sections: a broad nondiscrimination requirement applicable to all of a public entity=s programs, services, and activities (§ 35.149); the architectural nondiscrimination requirement for newly constructed facilities and alterations to facilities (§ 35.151); and requirements, permitted methods, time period, and procedures for complying with the program accessibility requirements in existing facilities (§ 35.150). To understand how Title II=s program accessibility requirements apply to a public entity=s programs, services, and activities, it is necessary to read §§35.149, 35.150, and 35.151 together.
§ 35.149.7 This section requires all of a public entity=s programs, services, and activities to be readily accessible to and usable by individuals with disabilities. It prohibits disability-
6 ‘Federal financial assistance’ is, in essence, anything of value received from the federal government. See 28 C.F.R. § 42.540(f). 7 Section 35.149 provides:
Except as otherwise provided in Sec. 35.150, no qualified individual with a disability shall, because a public entity's facilities are inaccessible to or unusable by individuals with disabilities, be excluded from participation in, or be denied
10

based exclusion from participation, denial of benefits, and discrimination of other kinds, inter
alia, “because a public entity's facilities are inaccessible to or unusable by individuals with
disabilities.” 28 C.F.R. § 35.149. See also 28 C.F.R. § 42.520 (comparable regulation under
Section 504).
§ 35.151.8 This section applies to the construction of facilities, and alterations to
facilities, occurring after January 26, 1992. Under this section, a public entity=s newly
the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any public entity.
8 The relevant provisions of § 35.151 state:
(a) Design and construction. Each facility or part of a facility constructed by, on behalf of, or for the use of a public entity shall be designed and constructed in such manner that the facility or part of the facility is readily accessible to and usable by individuals with disabilities, if the construction was commenced after January 26, 1992. (b) Alteration. Each facility or part of a facility altered by, on behalf of, or for the use of a public entity in a manner that affects or could affect the usability of the facility or part of the facility shall, to the maximum extent feasible, be altered in such manner that the altered portion of the facility is readily accessible to and usable by individuals with disabilities, if the alteration was commenced after January 26, 1992. (c) Accessibility standards. Design, construction, or alteration of facilities in conformance with the Uniform Federal Accessibility Standards (UFAS) (appendix A to 41 CFR part 101 - 19.6) or with the Americans with Disabilities Act Accessibility Guidelines for Buildings and Facilities (ADAAG) (appendix A to 28 CFR part 36) shall be deemed to comply with the requirements of this section with respect to those facilities, except that the elevator exemption contained at section 4.1.3(5) and section 4.1.6(1)(k) of ADAAG shall not apply. Departures from particular requirements of either standard by the use of other methods shall be permitted when it is clearly evident that equivalent access to the facility or part of the facility is thereby provided. [The omitted provisions of this section are subsections (d), relating to alterations to historic properties, and (e), relating to the requirement to install curb ramps to provide access on newly constructed and altered streets and sidewalks).]
11

constructed facilities, and newly constructed portions of facilities, must be “readily accessible to and usable by individuals with disabilities.” 28 C.F.R. § 35.151(a). Alterations to a public entity=s facilities must be “readily accessible to and usable by individuals with disabilities” to the maximum extent feasible. Id. This section also identifies two architectural standards B i.e., (1) the standards at 28 C.F.R. pt. 36, app. A excluding any elevator exception (hereafter, “ADA Standards” but known colloquially as “ADAAG”) or (2) the standards at http://www.accessboard.gov/ufas/ufas-html/ufas.htm (hereafter, Uniform Federal Accessibility Standards or “UFAS”).9 28 C.F.R. § 35.151(c). See also 28 C.F.R. § 42.522 (comparable Section 504 regulation). Compliance with one of these two architectural standards is deemed to comply with the architectural accessibility requirements of Title II.
§ 35.150. This section contains four subsections, (a)-(d), relating to a public entity=s obligations in existing facilities. Subsection (a) addresses the nature and extent of the program accessibility obligation in existing facilities, subsection (b) sets out methods for compliance, subsection (c) establishes a deadline, and subsection (d) sets out certain administrative requirements.
§ 35.150(a)10 B nature and extent of the program accessibility obligation in existing facilities. This subsection requires a public entity to operate each program, service, and activity
9 Notably, when a public entity sets out to employ UFAS in a building, it cannot then choose to employ the ADA Standards for another floor or in an alteration project, and vice-versa. Title II TA Manual § 6.2100 at 26. 10 28 C.F.R. § 35.150(a) states:
(a) General. A public entity shall operate each service, program, or activity so that the service, program, or activity, when viewed in its entirety, is readily accessible to and usable by individuals with disabilities. This paragraph does not --
12

located in existing facilities so that each of them, “when viewed in its entirety, is readily
accessible to and usable by individuals with disabilities.” 28 C.F.R. § 35.150(a). Although
§ 35.150(a) may require a public entity to modify its existing facilities to be accessible to
individuals with disabilities, it “does not necessarily require a public entity to make each of its
existing facilities accessible to and usable by individuals with disabilities” (emphasis added). 28
C.F.R. § 35.150(a)(1). Under this subsection, a public entity is not required to take an action that
it “can demonstrate would result in a fundamental alteration in the nature of a service, program,
or activity or in undue financial and administrative burdens.” 28 C.F.R. § 35.150(a)(3).
However, a public entity “shall take any other actions” to “ensure that individuals with
disabilities receive the benefits or services provided by the public entity.” 28 C.F.R.
§ 35.150(a)(3). As the regulatory language makes clear, the burden of proving that an action
would result in a fundamental alteration or undue burdens rests with the public entity. Id.
(1) Necessarily require a public entity to make each of its existing facilities accessible to and usable by individuals with disabilities; (2) Require a public entity to take any action that would threaten or destroy the historic significance of an historic property; or (3) Require a public entity to take any action that it can demonstrate would result in a fundamental alteration in the nature of a service, program, or activity or in undue financial and administrative burdens. In those circumstances where personnel of the public entity believe that the proposed action would fundamentally alter the service, program, or activity or would result in undue financial and administrative burdens, a public entity has the burden of proving that compliance with Sec. 35.150(a) of this part would result in such alteration or burdens. The decision that compliance would result in such alteration or burdens must be made by the head of a public entity or his or her designee after considering all resources available for use in the funding and operation of the service, program, or activity, and must be accompanied by a written statement of the reasons for reaching that conclusion. If an action would result in such an alteration or such burdens, a public entity shall take any other action that would not result in such an alteration or such burdens but would nevertheless ensure that individuals with disabilities receive the benefits or services provided by the public entity.
13

Moreover, any decision not to take an action on such grounds must be made “after considering
all resources available for use in the funding and operation of the service, program, or activity”
and must be accompanied by a written statement of the reasons setting out the basis for the
determination. Id. Notwithstanding the fundamental alterations and undue burden defenses
available to public entities, “the program access requirement of title II should enable individuals
with disabilities to participate in and benefit from the services, programs, or activities of public
entities in all but the most unusual cases.” Preamble to Title II Regulation, 56 Fed. Reg. 35708
(emphasis added). See also Olmstead, 138 F.3d 893, 902 (11th Cir. 1998), aff=d, 527 U.S. 581
(1999) (“[T]he plain language of the ADA=s Title II regulations, as well as the ADA=s legislative
history, make clear that Congress wanted to permit a cost defense in only the most limited of
circumstances” and “[t]he fact that it is more convenient, either administratively or fiscally, to
provide services in a segregated manner, does not constitute a valid justification for separate or
different services.”) (quoting H.R. Rep. No. 101-485, pt. 3 at 50, reprinted in 1990 U.S.C.C.A.N.
at 473). § 35.150(b)11 B methods for providing program accessibility in existing facilities.
This subsection sets out alternative ways of making programs, services, and activities in existing
11 Relevant provisions of 28 C.F.R. § 35.150(b) state:
(b) Methods -- (1) General. A public entity may comply with the requirements of this section through such means as redesign of equipment, reassignment of services to accessible buildings, assignment of aides to beneficiaries, home visits, delivery of services at alternate accessible sites, alteration of existing facilities and construction of new facilities, use of accessible rolling stock or other conveyances, or any other methods that result in making its services, programs, or activities readily accessible to and usable by individuals with disabilities. A public entity is not required to make structural changes in existing facilities where other methods are effective in achieving compliance with this section. A public entity, in making alterations to existing buildings, shall meet the accessibility requirements of Sec.35.151. In choosing among available methods for meeting the
14

facilities readily accessible to and usable by individuals with disabilities. One acceptable method is to make alterations to the existing facility, or construct a new facility, in compliance with the ADA Standards or UFAS, consistent with § 35.151. Other acceptable methods – such as reassigning services to accessible buildings, delivering services at alternate accessible sites, and the assignment of aides to provide assistance – can also be used so long as two requirements are met. First, the public entity “shall give priority to those methods that offer services, programs, and activities to qualified individuals with disabilities in the most integrated setting appropriate.” 28 C.F.R. § 35.150(b); see also 28 C.F.R. § 35.130(g); Olmstead, 527 U.S. at 592 (discussing integration mandate). As the Department explained in 1991 in the Preamble to the Title II regulation:
Integration is fundamental to the purposes of the Americans with Disabilities Act. Provision of segregated accommodations and services relegates persons with disabilities to second-class status. For example, it would be a violation of this provision to require persons with disabilities to eat in the back room of a government cafeteria or to refuse to allow a person with a disability the full use of recreation or exercise facilities because of stereotypes about the person=s ability to participate. 56 Fed. Reg. 35703.12 In addition to giving priority to integration, the selected method for achieving program accessibility must result in making the services, programs, or activities “readily accessible to and
requirements of this section, a public entity shall give priority to those methods that offer services, programs, and activities to qualified individuals with disabilities in the most integrated setting appropriate. [Provisions relating to historic preservation programs are omitted.] 12 Preambles and commentaries accompanying regulations, like the regulations themselves, are entitled substantial deference as both are part of a department=s official interpretation of legislation. Stinson v. United States, 508 U.S. 36, 45 (1993).
15

usable by individuals with disabilities.”13 28 C.F.R. § 35.150(b). If non-architectural methods
are ineffective, a public entity must make structural changes in existing facilities.14 Structural
changes “include all physical changes to a facility; the term does not refer only to changes to
structural features, such as removal of or alteration to a load-bearing structural member.” 56 Fed.
Reg. 35709. All physical changes must be made in accordance with the ADA Standards or
UFAS. 28 C.F.R. § 35.150(b). Neither the ADA Standards nor UFAS is stricter.15 Notably, 5%
of the cells in facilities of federally funded correctional entities, such as those at issue here, are
required to be accessible. See 28 C.F.R. § 42.522(b); UFAS § 4.1.4(9)(c), at http://www.access-
board.gov/ufas/ufas-html/ufas.htm#4.1.4 (requiring at least 5% of cells to be accessible and
requiring accessibility in, inter alia, all common use and visitor areas).
Although the ADA (UFAS) and Section 504 establish the minimum number of accessible
cells and other residential units that must be provided in the design and construction of
13 The preamble to the Title II regulation makes clear that carrying an individual with a disability is almost never an acceptable method of providing access. 56 Fed.Reg. 35709.
14 The regulation specifies the circumstances in which public entities must make structural modifications to facilities in the following way. It expressly permits a public entity to comply through Athe alteration of existing facilities and construction of new facilities . . . and other methods that result in making its services, programs, or activities readily accessible to and usable by individuals with disabilities.@ 28 C.F.R. § 35.150(b). It then exempts a public entity from making structural changes to the extent that nonarchitectural means provide the required level of accessibility for individuals with disabilities: A[A] public entity is not required to make structural changes in existing facilities where other methods are effective in achieving compliance with this section.@ Id. Accordingly, where nonarchitectural means are not effective in making a program, service, or activity readily accessible to or usable by individuals with disabilities, the exemption from making structural changes is not applicable. As made clear in the preamble to the Title II regulation, A[s]tructural changes in existing facilities are required only when there is no other feasible way to make the public entity's program accessible.@ 56 Fed. Reg. 35709.
15 The Title II Technical Assistance Manual provides a list of differences between the ADA Standards and UFAS. See Title II TA Manual §§ 6.3100-300, at 27-35.
16

correctional facilities, neither statute specifies the maximum number of accessible cells that a correctional facility may be required to provide in order to accommodate inmates with mobility disabilities consistent with the requirements of 28 C.F.R. §§ 35.149-150 (ADA) and 28 C.F.R. §§ 42.520-21 (Section 504). Regulations issued under both statutes require a correctional facility=s housing program to be readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs. 28 C.F.R. §§ 35.149-151; 28 C.F.R. § 42.520-522. An inmate housing program is not readily accessible to and usable by individuals with disabilities unless, for example, its inmates with mobility disabilities, including those who use a wheelchair, are housed in cells or dormitories equipped with all of the requisite accessible features. Id. This requirement applies regardless of whether the inmate is housed in a newly constructed prison or an existing one. Where a prison is an existing facility, Title II and Section 504 may permit the public entity to house an inmate with a mobility disability in another facility with an available accessible cell provided certain conditions are met: (1) this option must make the prison=s housing program, when viewed in its entirety, readily accessible to and usable by the inmate; (2) it cannot exclude the inmate from participation in, or deny him the benefits of, the prison=s programs, services or activities or otherwise subject him to discrimination; and (3) it must give priority to the provision of services in the most integrated setting appropriate. 28 C.F.R. §§ 35.150 (Title II), 42.521 (Section 504). For example, where a public entity has two pre-ADA prisons, both with the same programs, services, activities, and security classification, and only one has architecturally accessible cells, the Title II and Section 504 program access requirements would permit an inmate who uses a wheelchair to be housed in the prison with the accessible cells, in lieu of requiring architectural modifications at the other facility. 28 C.F.R. §§ 35.150 (Title II), 42.521 (Section 504). However, if the prison without accessible cells has a
17

drug treatment program and the prison with accessible cells does not, it would be a violation of Title II and Section 504 to deny an inmate with a disability participation in the drug treatment program, whether or not participation in the program is a condition of the inmate=s sentence or parole, because he was housed in an accessible cell at a facility where the program was not offered. 28 C.F.R. §§ 35.149-150 and 42.520-521 (individual with disability cannot be denied participation in or benefits of program because facility is inaccessible).
Similarly, if an inmate with a disability requires a specific accessible feature of physical accessibility in order to use a prison program, those features of physical accessibility must be provided pursuant to 28 C.F.R. §§ 35.149-35.150, even if they are not one of the requirements for facilities specified in the ADA Standards or UFAS. For example, an inmate with a mobility disability may require a trapeze or grab bars in order to transfer between a wheelchair and a bed, which is necessary for the accessibility of the prison’s housing program. To ensure the safe transportation of an inmate who uses a wheelchair, a prison’s transportation program must use an accessible vehicle – i.e., a van or bus equipped with a ramp or wheelchair lift and appropriate wheelchair securement equipment.
To aid correctional officials in complying with Title II=s and Section 504's requirement to provide accessible inmate housing, the Department published a technical assistance document describing and illustrating the requirements for accessible cells required pursuant to UFAS and the ADA Standards. See U.S. Dep=t of Justice, ADA/Section 504 Design Guide: Accessible Cells in Correctional Facilities (Feb. 2005) (AAccessible Cells Design Guide@), at http://www.ada.gov/publicat.htm#Anchor-ADA-23240, and appended hereto as Exhibit A. The Accessible Cells Design Guide notes the basic elements of accessibility required under both UFAS and the ADA Standards. These include:
18

1. Doors with 32 inches of clear opening width (when a sliding door is fully opened or a hinged door is open 90 degrees), and clear floor space in front of the door.
2. Where desks are provided, knee and toe space and clear floor space for front approach.
3. Bed with clear floor space for a side approach next to the bed for transferring. Bed height should be between 17 and 19 inches.
4. A toilet with a seat height between 17 and 19 inches, its centerline 18 inches from the side wall, with side and rear grab bars 33 to 36 inches from the finished floor. The side grab bar must be at least 40 inches long and the rear grab bar must be at least 36 inches long.
5. Adequate clear floor space to approach the toilet from a variety of transfer positions (front, diagonal, or side), as different people with disabilities transfer in different manners. Flush controls must be within reach and be operable without tight grasping, twisting, or pinching. Generally, the toilet needs to be placed within a 60-inch-wide by 59-inch deep clear area of the floor. (The various clear floor spaces identified here may overlap.)
6. Lavatories must provide burn protection from contact with pipes, faucets must be usable with one loosely closed fist, such as by levers, push-type mechanisms, and U-shaped handles. Lavatories must also have appropriate clearance.
See Exhibit A, Accessible Cells Design Guide at 1-5 (incorporating UFAS and ADA Standards
and providing illustrations).
In addition to accessible cells, other elements of correctional facilities must also comply
with accessibility standards in order to provide access to a correctional facility=s programs,
services, and activities for inmates and visitors with disabilities. These accessibility elements
include parking, loading zones, entrances, routes throughout the facility, ramps, curb ramps,
stairs, lifts and elevators, doors, drinking fountains, toilet rooms, toilets, sinks, handrails,
showers, bathing elements, alarms, telephones, fixed or built-in seating and tables, assembly
areas, and controls and operating mechanisms, such as vending machines and dispensers in
visitation areas. See generally UFAS; ADA Standards. Particular areas requiring accessibility
include those that inmates or visitors use, such as visitation areas, classrooms, workplaces, 19

private industries, recreation areas, libraries (law and regular), dining areas, and medical care areas. See generally UFAS; ADA Standards.
§ 35.150(c)16 B time period for achieving compliance. Recognizing that a public entity might require a significant period of time to make structural changes in existing facilities, the Title II regulation gave public entities up to three years to complete those changes. Public entities were required to make all structural changes necessary for program accessibility in existing facilities “as expeditiously as possible” but no later than January 26, 1995. 28 C.F.R. § 35.150(c); Title II Technical Assistance Manual at 46.
§ 35.150(d) and Title II=s administrative requirements. Recognizing that large entities B i.e., those with 50 or more employees B would likely need to plan for structural changes in existing facilities necessary to comply with program accessibility requirements, the Title II regulation established an administrative requirement intended to ensure that such planning occurred. 28 C.F.R. § 35.130(d). By July 26, 1992, large public entities were required to develop a transition plan showing the steps they would be taking to achieve compliance. 28 C.F.R. § 35.150(d)(1). The transition plan was required: (a) to identify the physical obstacles in a public entity=s facilities that limited the accessibility of its programs, services or activities (i.e., steps, steep slopes, narrow doorways, inaccessible toilet rooms and showers, and other features that did not comply with the ADA Standards (excluding the elevator exception) or UFAS); (b)
16 28 C.F.R. § 35.150(c) provides:
(c) Time period for compliance. Where structural changes in facilities are undertaken to comply with the obligations established under this section, such changes shall be made within three years of January 26, 1992, but in any event as expeditiously as possible. More than a decade earlier, the Section 504 regulation, 28 C.F.R. § 42.521(d), provided a similar time period for making structural modifications.
20

describe in detail the methods that would be used to make the facilities accessible; and (c) specify a schedule for completion of the steps necessary to achieve compliance. Id. See also Title II TA Manual at 46-47. For Title II entities that also received federal funds and had already complied with transition plan requirements under Section 504, the transition plan was required only to address obstacles to access that were not remedied under a prior Section 504 transition plan. Id.
The Title II regulation (28 C.F.R. § 35.105) also required all public entities to evaluate their own services, policies, and practices to identify those that did not comply with Title II requirements. This self-evaluation was to be completed within one year, by January 26, 1992.
ENSURING COMPLIANCE WITH TITLE II AND SECTION 504 AT GSP AND ASMP
Relief to ensure compliance with Title II, Section 504, and the regulations implementing these statutes, including the ADA Standards or UFAS, requires an evaluation of each of the prisons’ programs, services, and activities, as well as the physical and operational issues addressed herein. Such an evaluation must include a thorough review of the facilities’ rules, policies, practices, and services. Furthermore, any equitable relief must also include compliance with the regulations with respect to any other inmate with a disability who requires, inter alia, an accessible cell, seeks equal access to another program (e.g., drug treatment or education), seeks auxiliary aids and services (e.g., sign language interpreter, reader, materials in accessible formats such as large print or Braille) because of a disability affecting hearing, vision, or speech; or seeks disability-related healthcare and personal assistance services, supplies, or equipment.
SUMMARY Title II and Section 504 mandate that no qualified individual be subjected to discrimination by a state department of corrections or prison or be excluded from or denied the
21

benefits of their programs, services, and activities. 42 U.S.C. § 12132; 29 U.S.C. § 794. In addition, all of the programs, services, and activities of public entities, including departments of corrections and prisons, must be “readily accessible to and usable by” inmates with disabilities. 28 C.F.R. §§ 35.149-150(a); 28 C.F.R. § 42.520-521; Yeskey, 524 U.S. at 209. These nondiscrimination mandates – which include obligations established by constitutional guarantee, Lane, 541 U.S. at 523-24 – have existed since the early 1990s for Title II, and the early 1970s for Section 504. Regulations issued under these two statutes, including the architectural standards in the ADA Standards and UFAS, establish the standards for compliance and define what physical accessibility means. Anything short of the benchmarks established by the regulations and applicable standards should be deemed a violation of Title II and Section 504 subject to appropriate remedies.
22

CONCLUSION For the reasons stated herein, the United States respectfully requests consideration of this Memorandum of Law in rendering any decisions on summary judgment and at trial. Respectfully submitted, this 21st day of June 2010.

EDWARD J. TARVER United States Attorney Southern District of Georgia
DELORA L. KENNEBREW Chief, Civil Division Southern District of Georgia

ERIC H. HOLDER, JR. Attorney General of the United States
THOMAS E. PEREZ Assistant Attorney General Civil Rights Division
SAMUEL R. BAGENSTOS Principal Deputy Assistant Attorney General Civil Rights Division

____s/ William F. Lynch________________ JOHN L. WODATCH, Chief PHILIP L. BREEN, Special Legal Counsel JEANINE M. WORDEN, Deputy Chief Virginia Bar No. 29754 MELLIE H. NELSON, Supervisory Attorney WILLIAM F. LYNCH, Trial Attorney Virginia Bar No. 71226 Disability Rights Section Civil Rights Division U.S. Department of Justice 950 Pennsylvania Avenue, N.W. (NYA) Washington, D.C. 20530 Telephone: (202) 305-2008 Facsimile: (202) 616-6862 William.Lynch@usdoj.gov Counsel for Amicus Curiae United States of America

23

EXHIBIT A U.S. Dep=t of Justice, Civil Rights Div., Disability Rights Section, ADA/Section 504 Design Guide: Accessible Cells in Correctional Facilities, at http://www.ada.gov/accessiblecells.htm.
24

CERTIFICATE OF SERVICE

I, William F. Lynch, on behalf of the United States of America as Amicus Curiae hereby certify that I served the following parties in the above-captioned action by electronically filing the foregoing with the Court=s case management/electronic case filing system:

Sarah M. Shalf, Esq. shalf@bmelaw.com

Pattie J. Williams, Esq. pwilliams@law.ga.gov

Jeffrey O. Bramlett, Esq. bramlett@bmelaw.com

Michelle J. Hirsch, Esq. mhirsch@law.ga.gov

Robert L. Ashe, Esq. ashe@bmelaw.com

Susan E. Teaster, Esq. steaster@law.ga.gov

Aaron B. Mason, Esq. amason@law.ga.gov

Dirk C. Phillips, Esq. dirk.phillips@usdoj.gov

Devon Orland, Esq. dorland@law.ga.gov
Dated this 21st day of June 2010.

Delora L. Kennebrew, Esq. delora.kennebrew@usdoj.gov

____s/ William F. Lynch________________ WILLIAM F. LYNCH, Trial Attorney Disability Rights Section Civil Rights Division U.S. Department of Justice 950 Pennsylvania Avenue, N.W. §NYA) Washington, D.C. 20530 Telephone: (202) 305-2008 Facsimile: (202) 616-6862 William.Lynch@usdoj.gov Counsel for Amicus Curiae United States of America

25

 
 Case 6:98-cv-00109-JEG Document 335 Filed 09/21/09 Page 1 of 25

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF GEORGIA
STATESBORO DIVISION

JiH If fj

TRACY MILLER, Plaintiff,
RONALD KING; JOHNNY SIKES; THE GEORGIA DEPARTMENT OF CORRECTIONS, and THE STATE OF GEORGIA,
Defendants.

CIVIL ACTION NO.: CV698-109

A() 72A (Rev. 8/82)

ORDER Plaintiff, who is currently incarcerated at the Georgia Diagnostic and Classification Prison in Jackson, Georgia, filed an action' pursuant to 42 U.S.C. § 1983, the Rehabilitation Act ("RA"), 29 U.S.C. § 701, et seq., and Title II of the American with Disabilities Act of 1990, 42 U.S.C. § 12131, et seq., ("ADA"), arising out of his confinement at Georgia State Prison in Reidsville, Georgia ("GSP'), and Augusta State Medical Prison in Grovetown, Georgia ("ASMP"). Defendants previously filed a Motion to Dismiss, which the undersigned granted in part and denied in part. The undersigned converted the following portions of Defendants' Motion to Dismiss into claims for summary judgment relief: 1) whether Plaintiff exhausted his administrative remedies prior to filing his Complaint, as amended; 2) whether Plaintiff suffered an actual injury resulting from his access to courts claim; and 3) whether Plaintiff's claims are barred by res judicata. The undersigned also allowed the parties to submit argument as to
1 See Docket Entry Number 219 for a detailed account of this case's procedural history.

Case 6:98-cv-00109-JEG Document 335 Filed 09/21/09 Page 2 of 25
whether Title II of the ADA abrogates a state's sovereign immunity in those situations where conduct violates Title II but does not independently violate the Constitution. The parties have responded, and the United States of America ("United States") filed a Brief as Intervenor on the issue of abrogation.
STATEMENT OF THE CASE Plaintiff asserts that Defendant Sikes deprived him of medical care, and that Sikes, the State of Georgia, and the Georgia Department of Corrections are responsible for failing to provide him with reasonable accommodations for his disability and confinement to a wheelchair. (Doc. No. 38, pp. 3-4). In his Amended Complaint, Plaintiff sets forth Eighth Amendment claims based upon the alleged deprivation of his serious medical needs as a wheelchair-bound paraplegic and upon the alleged deficient accommodation of his disability. (Doc. No. 198, p. 15). He also asserts that his Fourteenth Amendment right to equal protection of the law has been violated, contending that "[w]heelchair-bound inmates . . . are not provided the same privileges as similarly-situated able-bodied inmates." (Id. at 17). Plaintiff additionally contends that Defendants have taken action against him in retaliation for his having filed complaints and lawsuits and have interfered with his access to the courts, all in violation of his First Amendment rights. (Id. at 18-19). Plaintiff asserts that he has been excluded from receiving adequate medical care and accessible facilities and services by reason of his disability, in violation of Section 504 of the RA. (Id. at 19-21). Finally, Plaintiff asserts violations of Title II of the ADA by acts of discrimination and retaliation. (Id. at 21-23).

A() 72\

(Rev. /82)

2

Case 6:98-cv-00109-JEG Document 335 Filed 09/21/09 Page 3 of 25

/%,() 72A
(key . 4/2)

Defendants contend Plaintiff's § 1983, RA, and ADA claims are barred by i-es judicata. Defendants also contend that Plaintiff has not shown he suffered any actual injury in order to sustain his access to the courts claim. Defendants further contend that Title Ills not valid legislation under § 5 of the Fourteenth Amendment for Title II claims that do not independently violate the Constitution. Finally, Defendants contend that Plaintiffs requests for injunctive relief should be dismissed as moot.
STANDARD OF REVIEW Summary judgment should be granted if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving part[ies are] entitled to judgment as a matter of law." FED. R. Civ. P. 56(c); Midrash Se phardi, Inc. v. Town of Surfside, 366 F.3d 1214, 1223 (11th Cit. 2004). An issue of fact is "material" if it might affect the outcome of the case, and an issue of fact is "genuine" when it could cause a rational trier of fact to find in favor of the nonmoving party. Hickson Corp. v. Northern Crossarm Co., Inc., 357 F.3d 1256, 1259-60 (11th Cir. 2004). The court must determine "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Id. at 1260 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). The moving parties bear the burden of establishing that there is no genuine issue of material fact and that they are entitled to judgment as a matter of law. Williamson Oil Co., Inc. v. Philip Morris USA, 346 F.3d 1287, 1298 (11th Cir. 2003). Specifically, the 2 Defendants initially asserted that Plaintiff failed to exhaust his administrative remedies involving claims which arose from Plaintiff's incarceration at ASMP. However, Defendants moved to dismiss this ground of their Motion, and the undersigned granted this motion by Order dated August 6, 2009. (Doc. No. 332).
3

Case 6:98-cv-00109-JEG Document 335 Filed 09/21/09 Page 4 of 25

moving par-ties must identify the portions of the record which establish that there are no

genuine issues of material fact. Hickson, 357 F.3d at 1260 (citing Celotex Cor p . v.

Catrett, 477 U.S. 317, 323 (1986)). When the nonmoving party would have the burden

of proof at trial, the moving parties may discharge their burden by showing that the

record lacks evidence to support the nonmoving party's case or that the nonmoving

party would be unable to prove his case at trial. Id. In determining whether a summary

judgment motion should be granted, a court must view the record and all reasonable

inferences that can be drawn from the record in a light most favorable to the nonmoving

party. Acevado v. First Nat'l Bank, 357 F. 3d 1244, 1247 (11th Cir. 2004).

DISCUSSION AND CITATION TO AUTHORITY

I.

Res Judicata

Defendants contend that Plaintiff alleges in this case that Defendants failed to

provide him with adequate medical treatment, such as: physical therapy (which caused

atrophy in his leg and back pain), leg braces, catheters on a regular basis, and

neurological evaluations. Defendants also contend that Plaintiff alleges that the K-

Building at GSP is not equipped for the disabled, he was denied access to the chapel,

law library, and recreation, and he was not transferred by wheelchair-accommodating

vans. Defendants allege that Plaintiff also asserts that he was placed in isolation and

not allowed any time out of his wheelchair. Finally, Defendants allege that Plaintiff

asserts that he was transferred from prison to prison, which affects his ability to file suit

and interferes with his legal material. Defendants aver that the § 1983 claims Plaintiff

sets forth in this cause of action are barred by resjudicata.

AO 72\ '2)

4

Case 6:98-cv-00109-JEG Document 335 Filed 09/21/09 Page 5 of 25

Defendants contend that Plaintiff previously filed Miller v. Johnson, et al., CV697144, which dealt with the same issues alleged in this Complaint. Defendants aver that, in Johnson, Plaintiff asserted that the defendants in that case deprived him of orthopedic shoes, leg braces, physical therapy, adequate facilities for a paraplegic in KBuilding and housing outside of K-Building. Plaintiff also asserted claims for being in isolation, retaliation, the taking his legal materials, and the denial of medical treatment, which caused his leg to atrophy and eyesight to deteriorate. Defendants allege that these are the same claims as those in the present case against the GSP Defendants. Defendants assert this Court granted judgment as a matter of law to some of the defendants on some of the issues, and the remaining issues were decided by a jury in favor of the defendants. Defendants also assert the Eleventh Circuit Court of Appeals affirmed this Court's decision. Defendants note that, while the parties in the matter currently before the Court and Johnson are "slightly different", both of these cases were brought against GSP and its staff. (Doc. No. 255, p. 20). According to Defendants, the staff members involved in both lawsuits "worked together in some capacity at [GSP] in regards to overseeing the daily life activities and confinement conditions of [Plaintiff], including care and treatment." (Id.). Defendants contend that, if the parties are different but are alleged to work together to cause injury, they are in privity with each other for claim preclusion purposes.
Defendants also contend that Plaintiff filed Miller v. Garner, et al., CV699-83, and that Garner concerned Plaintiff's claim that he was denied equal protection of the law because he was denied access to the law library, church services, and recreation time at GSP. Defendants aver that Plaintiff claimed in Garner that GSP is ill-equipped to

\() 72\

(RV. $i)

5

Case 6:98-cv-00109-JEG Document 335 Filed 09/21/09 Page 6 of 25

handle his medical needs, that staff were deliberately indifferent to his medical needs (which caused him physical and emotional harm), he was denied medical services and follow-up care, and that staff retaliated against him. Defendants assert that Plaintiff makes these same allegations in this cause of action. Defendants contend that this Court granted defendants summary judgment on some of Plaintiff's claims in Garner, a jury found in favor of the defendants on the remaining issues, and the Eleventh Circuit affirmed the judgment of this Court.
Plaintiff asserts Defendants waived this affirmative defense by failing to bring it in ten (10) years of litigation. Plaintiff alleges that Defendants raised this defense in its latest Answer, but, at best, the resjudicata defense relates to those claims he brought in his most recent Amended Complaint, not those claims he raised originally. However, Plaintiff asserts, res judicata is not a viable defense on the merits. Plaintiff contends that the State may claim the benefit of a prior adjudication in favor of a Department of Corrections' official in his or her official capacity. Plaintiff also contends that individuals sued in their official capacity may be able to claim the benefit of a prior adjudication in favor of the State or other employees in their official capacity, depending on the circumstances. Plaintiff also contends, however, that State employees sued in their individual capacities cannot claim the benefit of prior adjudications in favor of the State or other State employees in any capacity. Based on these contentions, Plaintiff alleges that the only Defendants in this case who can benefit from the adjudication in CV697144 are GSP and Lisa Johnson, and the only Defendants who can benefit from the adjudication in CV699-83 are GSP, and Garner, Donald, Paris, and Smith in their official capacities. Plaintiff asserts that he did not raise any ADA claims and no cognizable

AU 72A (Rev. 8i2)

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claims under the RA in Johnson. Plaintiff also asserts that he only raised § 1983 claims in the Garner case. Plaintiff states that the ADA and RA involve substantially different rights, duties, and defenses from section 1983. Plaintiff avers that nothing about Johnson and Garner speak to his present claims for relief pursuant to the ADA and RA for wheelchair-accommodating facilities and proper medical treatment or for damages under these Acts. Plaintiff also avers that the allegations in Garner and Johnson related to events which occurred at GSP, and thus, cannot bar his § 1983 claims against ASMP. Plaintiff contends that these previous judgments cannot bar claims based on later facts or conduct of the Defendants, even if they are of the same nature as the conduct about which Plaintiff complained previously. Plaintiff contends that the filing date of a complaint or an amended complaint are the triggering dates, not the dates of judgments.
"Res judicata, or claim preclusion, bars a subsequent claim when a court of competent jurisdiction entered a final judgment on the merits of the same cause of action in a prior lawsuit between the same parties." Pleming v. Universal-Rundle Corp., 142 F.3d 1354, 1356 (11th Cir. 1998). Under Georgia law, "[t]hree prerequisites must be satisfied before resjudicata applies- (1) identity of the cause of action, (2) identity of the parties or their privies, and (3) previous adjudication on the merits by a court of competent jurisdiction." Roth v. Gulf Atlantic Media of Georg ia, 244 Ga. App. 677, 679, 536 S.E.2d 577, 579 (2000).

AU 72A (key . 9/82)

In PIemin, the Eleventh Circuit noted there is a split in this Circuit as to whether state or federal law is applicable under resjudicata. In Precision Air Parts, Inc. v. Avco Corp., 736 F.2d 1499 (11th Cir. 1984), the Court found that a federal court reviewing the preclusive effect of a prior federal judgment applies federal common law. However, in NAACP v. Hunt, 891 F.2d 1555 (11th Cir. 1999), the Court concluded that federal courts should apply the law of the state in which they sit with respect to the doctrine of res judicata. The Court also noted in Plemin g that both the federal and Georgia principles of res judicata
7

Case 6:98-cv-00109-JEG Document 335 Filed 09/21/09 Page 8 of 25

A. Miller v. Johnson, CV697-144 On November 21, 1997, Plaintiff filed Case Number CV697-144 and set forth claims pursuant to § 1983 and the RA against: Lisa Johnson, John Brady, CO Joiner, Delores Sharp, Annette Thompson, SMU Manager Murray, Stan Dansby, and CO II Hughes. Plaintiff's Complaint was initially dismissed by Order dated April 9, 1998, but the Eleventh Circuit reversed and remanded the cause of action. Plaintiff asserted Defendants Johnson, Brady, and Murray violated the Eighth Amendment and the RA by placing him in a solitary confinement cell which did not accommodate his disabilities and by denying him access to orthopedic shoes and braces and physical therapy from September 5, 1997, through January 26, 2000. Plaintiff also asserted Defendants Joiner and Murray interfered with his access to the courts by confiscating or destroying his legal materials on September 7 and October 2, 1997. Plaintiff also asserted that Defendants Sharpe and Thompson4 filed false disciplinary reports against him. The undersigned permitted service of Plaintiff's Complaint on Defendants Johnson, Brady, and Murray, as well as on Defendant Sharpe on Plaintiff's privacy claims and Defendant Dansby on Plaintiff's due process claims. By Order dated November 27, 2001, the undersigned granted summary judgment to the following Defendants on the following claims: Defendant Dansby on Plaintiff's due process claims because Plaintiff did not exhaust his administrative remedies; Defendants Johnson and Murray on Plaintiff's classification and movement to another area of GSP; Defendants Johnson, Murray, and Brady were granted qualified immunity regarding Plaintiff's claims concerning the leg

.\() 72A
Rev, 8/82)

require the cause of action in the first and second lawsuits to be the same. Pleminci, 142 F.3d at 1356, ni. It is proper to apply Georgia law in the case at hand.
Defendant Thompson was dismissed by Order dated April 27, 2001. (CV697-144, Doc. No. 81).
8

Case 6:98-cv-00109-JEG Document 335 Filed 09/21/09 Page 9 of 25

brace and orthopedic shoes issues; Defendant Murray on Plaintiff's physical therapy claim; and all Defendants in their official capacities for monetary damages. (CV697144, Doc. No. 96). A jury returned a verdict in favor of the remaining Defendants as follows: Defendant Sharpe on Plaintiff's exposure/privacy claims; Defendant Brady as to the condition of Plaintiff's cell and his role in placing Plaintiff in that cell; and Defendants Johnson and Brady on Plaintiff's denial of physical therapy claim. (Id. at Doc. No. 114). The Eleventh Circuit Court of Appeals affirmed this Court's decision and found Plaintiff's appeal to be frivolous. (Id. at Doc. No. 127).
B. Miller v. Garner, CV699-83 Plaintiff originally filed this cause of action in the Northern District of Georgia on September 4, 1997, and the case was transferred to this Court on March 24, 1999. Plaintiff named as defendants in that case: Garner, the Commissioner of the Georgia Department of Corrections; A.G. Thomas, the Deputy Commissioner of the Georgia Department of Corrections; Joseph Paris, the Medical Director; the Department of Corrections, State of Georgia Classification Members; Johnny Sikes, the Warden at GSP, and Dr. Jacob. The undersigned noted in a Report and Recommendation dated June 2, 1999, that the claims Plaintiff set forth in CV699-83 were essentially the same as the allegations he set forth in CV698-109. 5 Defendants Jacob and the Department of Corrections Classification Committee Members were dismissed by Order dated July 1, 1999, based on the lack of service. The undersigned recommended that Defendants Garner and Thomas be granted summary judgment for Plaintiff's monetary damages claims in their official capacities and that Defendants Paris and Sikes be granted

A() 72\ (Rex. 8/82)

The Court did not sua sponte raise the issue of resjudicata in the early proceedings of this case, and Defendants have not brought forth this affirmative defense until the Motion presently before the Court.
9

Case 6:98-cv-00109-JEG Document 335 Filed 09/21/09 Page 10 of 25

summary judgment based on Plaintiff's retaliation and transfer claims. The Honorable B. Avant Edenfield adopted this recommendation as the opinion of the Court. After a jury trial, Defendants Garner and Thomas received a verdict in their favor based on Plaintiff's retaliation and supervisory liability claims; Defendant Sikes received a verdict in his favor on Plaintiff's remaining claims; and all remaining Defendants received a verdict in their favor on Plaintiff's deliberate indifference, due process, and discrimination claims. The Eleventh Circuit affirmed this judgment.
To the extent Plaintiff brought specific claims in this case against the named Defendants which were previously asserted in CV697-144 and CV699-83, Defendants' Motion is granted. The remainder of Defendants' Motion based on res judicata grounds is denied at this time. The Court cannot ratify Defendants' seeming notion that, if Plaintiff brought certain claims in the past and this Court has made a ruling as to those claims, the claims in his present lawsuit must be dismissed based on res judicata principles, no matter who the Defendants are in this case and who they were in Plaintiff's previously filed cases. In addition, Defendants did not assert with any specificity which claims against which Defendants should be dismissed based on res judicata. II. Actual Injury/Access to the Courts
Defendants contend that Plaintiff has not shown that he suffered actual injury to a non-frivolous claim as a result of their actions, and, accordingly, his access to the courts claim must be dismissed. Defendants assert that Plaintiff's claims regarding his civil lawsuits and inadequate legal research capabilities are without merit because Plaintiff has not been prevented from presenting or prosecuting his cases in court. Defendants

A() 72\ (Rev. SI82)

10

Case 6:98-cv-00109-JEG Document 335 Filed 09/21/09 Page 11 of 25

allege that Plaintiff has filed 41 lawsuits since he was incarcerated and 226 grievances since 1996 and has tried and appealed two cases, Johnson and Garner. Defendants allege that Plaintiff does not identify lawsuits in which he has been denied access to the courts and has not identified non-frivolous lawsuits which have been dismissed because of their actions. Defendants contend that Plaintiff's lack of up-to-date legal research materials is not grounds for relief.
Plaintiff asserts that the claims he set forth in paragraphs 74 through 81 of his Amended Complaint do not merely allege he was denied access to the courts, but that Defendants retaliated against him and generally denied his First Amendment rights. Plaintiff also asserts that, even if he cannot show he suffered an actual injury, his First Amendment claims still survive, and the Defendants' Motion on this issue would narrow his claims. Plaintiff admits that he has been able to file lawsuits and habeas corpus petitions, and he has lost several of his civil rights actions and several others have been dismissed and his habeas corpus petitions have been denied. According to Plaintiff, his ability to file causes of actions does not speak to "whether he has been impeded or hindered in his attempt to successfully prosecute either habeas or civil rights actions." (Doc. No. 264, p. 20). Plaintiff contends that, whenever he is transported, as well as on other occasions, prison officials confiscate his papers or destroy his legal materials. Plaintiff also contends that he has not been able to access legal materials at all times because the law library was not wheelchair accessible. Plaintiff specifically contends that he has lost habeas corpus petitions because the law library was not wheelchair accessible and was unaware of new laws that would allow him to pursue new claims in successive habeas corpus petitions. Plaintiff alleges that prison officials have interfered

AO 72A

(Rev. 182)

11

Case 6:98-cv-00109-JEG Document 335 Filed 09/21/09 Page 12 of 25

with his privileged mail, as well as with conversations and meetings with his appointed attorneys. Plaintiff contends that these actions prevent him from being able to convey crucial information to counsel in a timely manner and that the right to communicate with an attorney is "a corollary of the right to access to the courts[.]" (Ld. at 21). Finally, Plaintiff asserts that, because he has been labeled a "frequent filer", prison officials essentially have told him they can do anything to him they want because he is not allowed to file a lawsuit, even one alleging that he is in imminent danger of serious physical harm.
"Access to the courts is clearly a constitutional right, grounded in the First Amendment, the Article IV Privileges and Immunities Clause, the Fifth Amendment, and/or the Fourteenth Amendment." Chappell v. Rich, 340 F.3d 1279, 1282 (11th Cir. 2003) (citing Christopher v. Harburv, 536 U.S. 403, 415 n.12 (2002)). In order to pass constitutional muster, the access allowed must be more than a mere formality. Bounds v. Smith, 430 U.S. 817, 822 (1977); Cha ppell, 340 F.3d at 1282. The access must be "adequate, effective, and meaningful." Bounds, 730 U.S. at 822. However, a prison's duty to provide its inmates with the ability to access the courts does not mean the prison must provide a means for its inmates "to litigate effectively once in court." Lewis v. Casey , 518 U.S. 343, 354 (1996) (emphasis in original). For an inmate to state a claim that he was denied access to the courts, he must establish that he suffered "actual injury" by showing that the defendant's actions hindered his ability to pursue a nonfrivolous claim. Christopher, 536 U.S. at 415; Jackson v. State Bd. of Pardons & Paroles, 331 F.3d 790, 797 (11th Cir. 2003). The pursuit of claims which are protected are those in which a plaintiff is attacking his sentence, directly or collaterally, or

AC.) 72/\ (Rev.

12 8/82.)

Case 6:98-cv-00109-JEG Document 335 Filed 09/21/09 Page 13 of 25

challenging the conditions of his confinement. See Lewis v. Case y, 518 U.S. 343 (1996). Stated another way, the "only specific types of legal claims [which] are protected by this right [are] the nonfrivolous prosecution of either a direct appeal of a conviction, a habeas petition, or a civil rights suit." Hyl a nd v. Parker, 163 F. App'x 793, 798 (11th Cir. 2006) (citing Bass v. Singletary, 143 F.3d 1442, 1445 (11th Cir. 1998)). There is no issue of material fact when the non-moving party has failed to prove the existence of an element essential to his case. Regions Bank v. Provident Bank, Inc., 345 F.3d 1267, 1279 (11th Cir. 2003). "Actual injury" is an essential element to a claim asserting the denial of access to the courts. See Christopher, 536 U.S. at 415.
A review of the evidence before the Court reveals that Plaintiff has not shown he has suffered an actual injury to the non-frivolous pursuit of a direct appeal, a habeas petition, or a civil rights suit based on the Defendants' actions or inaction. In Plaintiff's Amended Complaint, his access to the courts claim is raised in a very general manner, and Plaintiff does not assert how Defendants' actions denied him access to the courts. In fact, Plaintiff's First Amendment allegations read more like retaliation claims than claims asserting the denial of access to the courts. Additionally, in Plaintiffs Declaration, he states that on several occasions, his legal papers were confiscated and/or destroyed (Doc. No. 265, T 29); however, Plaintiff makes no showing that this confiscation caused an injury to a pending case or prevented him from filing anew. Plaintiff also states in his Declaration that he has been labeled a "frequent filer" and has been informed that he cannot file civil rights suits, even if he alleges that he is in imminent danger of serious physical injury. ( I d. at ¶ 31). Plaintiff overlooks the fact that this Court labeled Plaintiff as a frequent filer and cautioned him about filing future

Au 72\ (Rev, $i82)

13

Case 6:98-cv-00109-JEG Document 335 Filed 09/21/09 Page 14 of 25

lawsuits. Moreover, Plaintiff further states that he was unsuccessful in pursuing a habeas petition in 1996. (j4 at ¶ 33). Plaintiff was informed by the Tattnall County Superior Court that this petition was successive and that he did not show that the State failed to disclose evidence or that any other impediment existed which prevented him from raising the allegations in that petition in his first petition. (Doc. No. 265-13, p. 9). Again, this does not reveal that Defendants did anything which caused an actual injury to a non-frivolous cause of action. Finally, Plaintiff states that he was unaware of certain new rules at the time he filed his habeas claims because the law library at GSP was not wheelchair-accessible. However, even accepting this as true, this does not show that Plaintiff suffered an actual injury to the pursuit of a non-frivolous case as a result of Defendants' actions. Plaintiff has not overcome his burden of establishing the existence of a genuine issue of material fact as to whether Defendants denied his access to the courts. This portion of Defendants' Motion is granted. III. Title II Claims That do not Independently Violate the Constitution
Defendants request that the Court find that sovereign immunity is not abrogated in those situations where conduct violates Title II of the ADA but does not independently violate the Constitution. According to Defendants, under Supreme Court authority, Section 5 of the Fourteenth Amendment does not authorize legislation that is intended to deter conduct that does not violate the Constitution. Defendants contend that Congress intended to abrogate Eleventh Amendment immunity through its enactment of the ADA and that United States v. Georgia, 546 U.S. 151 (2006), "settled the question of the validity of Congress' authority as it relates to Title II claims where constitutional rights are at issue." (Doc. No. 255, p. 28) (emphasis in original). Defendants assert

AC) 72A

14

(Rev. (/82)

Case 6:98-cv-00109-JEG Document 335 Filed 09/21/09 Page 15 of 25
that Plaintiff cannot establish a pattern of facially constitutional discrimination against disabled prisoners regarding the provision of public services, programs, and activities. Defendants allege that Georg ia established that there was a widespread pattern of discrimination regarding the provision of public services, programs, and activities to the disabled in state prisons, but there is no evidence of a pattern of discrimination that does not also violate the Constitution. Defendants state that the analysis of whether there is a historic pattern of facially constitutional discriminatory conduct must be focused on the prison setting. Defendants aver that, even if a pattern of facially constitutional discrimination were established in this case, applying Title II to such claims is not a congruent and proportional remedy to the targeted violation. In addition, Defendants contend that Title li's requirements of free and unfettered access to and participation in services, programs, or activities of a public entity is inconsistent with the nature of incarceration and goes far beyond the Constitution's requirements. Defendants allege that a finding that disabled prisoners have claims under the ADA separate and apart from the Eighth Amendment "would lighten the burden of proof that is applied to prisoner cases from a deliberate indifference standard to a simple denial of services standard." (Id at 34).
The United States asserts that this Court should decline to consider the constitutionality of Title ii and the statutory provision abrogating states' Eleventh Amendment immunity to Title II claims because it is not necessary to do so. The United States alleges that Plaintiff asserts substantively identical claims against the State Defendants under Title II and Section 504 of the RA. According to the United States, the Eleventh Circuit has held that Title II and Section 504 impose identical anti-

Au 72A

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AU 7A (Rev,/82)

discrimination and accommodation requirements on entities such as the State

Defendants. The United States also states that the Eleventh Circuit has held that a

State agency that receives federal financial assistance does not enjoy Eleventh

Amendment immunity to claims under § 504 because it waives this immunity as a

condition of receipt of federal financial assistance. The United States contends that,

because the State Defendants are subject to suit under section 504 of the RA and that

section provides Plaintiff with identical protection to that afforded under Title II, this

Court should not consider the State's challenge to the constitutionality of Title II and the

provision abrogating States' Eleventh Amendment immunity.

The United States also states Congress unequivocally expressed its intent to

abrogate States' sovereign immunity to claims under the ADA and that Congress did so

through the valid exercise of its power under § 5 of the Fourteenth Amendment. 6 The

United States asserts Congress can remedy past violations of constitutional rights as

well as enact prophylactic legislation that proscribes facially constitutional conduct to

prevent and deter unconstitutional conduct. The United States also asserts that

Congress can prohibit practices that are discriminatory in effect, if not intent, to carry out

the objectives of the equal protection clause. The United States further asserts that

state prison operations are no exception to Congress' power. The United States

contends that Title II is appropriate section 5 legislation in the prison administration

setting because it is reasonably designed to remedy past and to prevent future

unconstitutional treatment of disabled inmates and deprivation of their constitutional

rights in the operation of state penal systems. The United States alleges that this Court

should follow the analysis the Supreme Court employed in Lane v. Tennessee, 541 U.S.

r'

adopts the arguments proffered by the United States for this issue, (Doc. No. 264, p. 22).

16

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509 (2004), and Ass'n of Disabled Americans, Inc. v. Florida International University, 405 F.3d 954 (11th Cir. 2005), and conclude that Title II is valid Fourteenth Amendment legislation, as applied in the context of prison administration. The United States asserts that Title II enforces the Equal Protection clause's prohibition of arbitrary treatment based on irrational stereotypes or hostility, as well as the heightened constitutional protection afforded to a variety of constitutional rights arising in the prison context. The United States avers that the Supreme Court has made it clear that a court must consider the full array of constitutional rights implicated by disability discrimination in a given context, regardless of whether every one of those rights is implicated by the facts of a case. The United States notes that, although incarceration "necessarily entails the curtailment of many of an individual's constitutional rights, the Supreme Court has repeatedly held that prisoners must 'be accorded those rights not fundamentally inconsistent with imprisonment itself or incompatible with the objectives of incarceration." (Doc. No. 263, p. 7) (quoting Hudson v. Palmer, 468 U.S. 517, 523 (1984)). The United States contends that Title Il's reasonable accommodation requirement is a valid means of targeting violations of constitutional rights and/or preventing and deterring constitutional violations throughout the range of government services, many of which implicate fundamental constitutional rights. The United States also contends that the historical predicate of unconstitutional disability discrimination in the provision of public services, including prisons, justifies prophylactic legislation under § 5 of the Fourteenth Amendment. Finally, the United States asserts that Title II is a congruent and proportional means of protecting the constitutional rights of prisoners with disabilities.

AU 72\ Re-,8h2)

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"Title II of the ADA provides that 'no qualified individual with a disability shall by reasons of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity." Georg ia, 546 U.S. at 153 (citing 42 U.S.C. § 12132). "A 'qualified individual with a disability' is defined as 'an individual with a disability who, with or without reasonable modifications to rules, policies, or practices, the removal of architectural, communication, or transportation barriers, or the provision of auxiliary aids and services meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity." (citing 42 U.S.C. § 12131(2)). The ADA defines 'public entity' to include 'any State or local government' and 'any department, agency, . . . or other instrumentality of a State." 42 U.S.C. § 12131(1). The Supreme Court, in Penns ylvania Deø't of Corrs. v. Yeske y , 524 U.S. 206, 210 (1998), concluded that the term "public entity" includes state prisons. The purpose of the ADA is "to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities." 42 U.S.C. § 12101(b)(1). It prohibits discrimination against the disabled in the areas of employment (Title I); public services, programs and activities (Title II); and public accommodations (Title Ill). Lane, 541 U.S. at 516-17.
The Eleventh Amendment renders the States immune from "any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." However, Congress may abrogate the State's Eleventh Amendment immunity. 7 "To determine whether it

AU 72\ (Rev. /2)

At least one court has stated that determining the abrogation issue prior to determining whether a plaintiff sets forth a valid Title II claim renders the court's decision advisory. See Guttman v. Khalsa, 446
18

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AO 72A (Rev. 8/82)

has done so in any given case, [a court] 'must resolve two predicate questions: first,
whether Congress unequivocally expressed its intent to abrogate that immunity; and
second, if it did, whether Congress acted pursuant to a valid grant of constitutional
authority." Lane, 541 U.S. at 517 (quoting Kimel v. Florida Bd. of Re g ents, 528 U.S. 62, 73 (2000)). The first inquiry is answered easily in the affirmative in causes of action
brought pursuant to Title II of the ADA. This Act provides: "(a] State shall not be
immune under the [E]leventh [A]mendment to the Constitution of the United States from
an action in Federal or State court of competent jurisdiction for a violation of this
chapter." 42 U.S.C. § 12202. The second inquiry requires analyzing whether
Congress' abrogation of sovereign immunity "for private suits under Title II of the ADA is
a valid exercise of Congress's authority under Section 5 of the Fourteenth Amendment."
Ass'n for Disabled Americans, Inc., v. Florida Int'l Univ., 405 F.3d 954, 957 (11th Cir. 2005).
"Section 5 of the Fourteenth Amendment grants Congress the power to enforce the substantive guarantees contained in § 18 by enacting appropriate legislation." Bd. of
Trustees of the Univ. of Alabama v. Garrett, 531 U.S. 356, 365 (2001) (internal
punctuation and citation omitted). "When Congress seeks to remedy or prevent
unconstitutional discrimination, § 5 of the Fourteenth Amendment authorizes it to enact
F.3d 1027 (10th Cir. 2006). However, the better course, in the undersigned's estimate, is to resolve the abrogation issue before addressing the validity of a plaintiffs Title II claims. It is only after the abrogation issue, in the context of facially constitutional conduct, is settled that the Court will know whether it needs to address the substantive issue before it. In addition, the Supreme Court and the Eleventh Circuit directed this Court to resolve the abrogation issue. Only for purposes of the abrogation issue presently before the Court, the undersigned presupposes Plaintiff is a "qualified individual" within the meaning of the ADA. '3 1 of the Fourteenth Amendment provides that, "[n]o State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
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prophylactic legislation proscribing practices that are discriminatory in effect, if not in intent, to carry out the basic objectives of the Equal Protection Clause." Disabled Americans, 405 F.3d at 957 (quoting Lane, 541 U.S. at 520). Congress' enforcement power "'includes the authority both to remedy and deter violation of rights guaranteed [by the Fourteenth Amendment] by prohibiting a somewhat broader swath of conduct, including that which is not itself forbidden by the Amendment's text." Garrett, 531 U.S. at 365. Legislation passed pursuant to section 5 of the Fourteenth Amendment is valid if there is "'congruence and proportionality between the injury to be prevented or remedies and the means adopted to that end." j (quoting Cit y of Boerne v. Flores, 521 U.S. 507, 519-20 (1997)). A three-step analysis is employed to determine whether Title II of the ADA meets the congruence and proportionality requirements for conduct that does not violate the Constitution. See Constantine v. Rectors & Visitors of George Mason Univ., 411 F.3d 474, 484 (4th Cir. 2005) (as quoted in Chase v. Baskerville, 508 F. Supp. 2d 492, 499 (E.D. Va. 2007)). "Under this analysis, [a court] must determine: (1) the constitutional right or rights that Congress sought to enforce when it enacted the ADA, (2) whether there was a history of unconstitutional discrimination to support Congress's determination that prophylactic legislation was necessary, and (3) whether Title II is an appropriate response to this history and pattern of unequal treatment." Id.
Under the first step of the congruence and proportionality analysis, this Court must identify the right or rights implicated under the facts before the Court. In this case, Plaintiff asserts that many programs, services, and activities at GSP and ASMP are not accessible to inmates who are in wheelchairs but are available to inmates who are not in wheelchairs. Plaintiff also asserts the programs, services, and activities include the

AU 72A

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law library, dining hall, yard call, physical activities, and medical services. Plaintiff contends the law library, dining hall, yard call, physical activities, and medical services at both prisons lack wheelchair-accessible toilets and water fountains and that wheelchair-bound inmates cannot enter these facilities without assistance, which is often denied due to inadequate staffing and indifference. (Doc. No. 198, TT 64-99). Plaintiff's allegations arguably identify several of "the constellation of rights applicable in the prison context", Georgia, 546 U.S. at 162 (Stevens and Ginsburg, JJ., concurring), such as the First Amendment rights to access to the courts and the free exercise of religion, the Eighth Amendment right to be free from cruel and unusual punishment, and the Fourteenth Amendment right to equal protection of the law.
Having delineated which rights are at stake, it must be considered whether Congress pointed to a history of unconstitutional conduct in enacting Title 11. 9 In Lane, the Supreme Court stated that "Congress enacted Title II against a backdrop of pervasive unequal treatment in the administration of state [public] services and programs[.]" 541 U.S. at 524. The Lane court implicitly determined the "sheer volume of evidence demonstrating the nature and extent of unconstitutional discrimination against persons with disabilities", including "judicial findings . . ., and statistical, legislative, and anecdotal evidence" was sufficient "to justify Congress' exercise of its prophylactic power[.]" Id. at 528-29. The undersigned is satisfied based on Lane,

AO 72A (Rev, 8/82)

To say there is a split in the Circuits as to whether the history relied upon in enacting Title II should be considered as a whole or in response to a particular setting at Step Two is a gross understatement. The undersigned, however, agrees with the Eighth Circuit's approach and concludes that it is the proper course to look at the history of unconstitutional discrimination in the provision of public services and programs, not just in a prison setting. See Klin g ler v. Director, De pt. of Rev.. State of Mo., 455 F.3d 888, 895-96 (8th Cir. 2006) (noting the Circuits' split and finding the Lane Garrett decisions require consideration of Title II as a whole).
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Disabled Americans, 10 and the anecdotal evidence proffered by the United States in its Brief, that Congress was justified in exercising its enforcement power under § 5 of the Fourteenth Amendment in response to a history and pattern of unconstitutional conduct.
Finally, it must be determined whether Title II is an appropriately tailored response to the history and pattern of unequal treatment in the context of a prison setting. Even in the face of a "clear record of unconstitutional discrimination, Congress's authority under § 5 extends only to enforcing, not redefining, constitutional protections." Chase, 508 F. Supp. 2d at 500 (citing City of Boerne, 521 U.S. at 519, 532). In other words, Congress' remedy "may not work a 'substantive change in the governing law." Lane, 541 U.S. at 520 (quoting City of Boerne, 521 U.S. at 519).
Title II is not an appropriately tailored response to a history and pattern of unequal treatment in the context of a prison setting, particularly in light of Plaintiff's contentions in this case. 11 Plaintiff asserts he and other wheelchair-bound inmates do not have access to certain services or facilities at GSP and ASMP which implicate

AO 72A (Rev. 8/82)

10 The Eleventh Circuit stated in Disabled Americans that "[t]he Lane Court, in analyzing the second prong of [this analysis], specifically noted that Congress documented a pattern of unequal treatment in the administration of a wide range of public services, programs[,] and activities, including the penal system, public education, and voting." 405 F.3d at 958 (quoting Lane, 541 U.S. at 524) (emphasis supplied). However, the Lane court actually noted that the "decision of other courts" documented this pattern of unequal treatment. 541 U.S. at 524. It is not clear whether Congress relied on those court decisions noted by the Supreme Court in Lane in passing Title II, but the undersigned finds this evidence useful in the historical framework the second prong of the congruence and proportionality analysis requires.
While there is a split among the Circuits as to how a Step Two analysis should proceed, as noted above, this does not appear to be the case in a court's undertaking in Step Three of its analysis. See Kling ler, 455 F.3d at 897 (Title II does not validly abrogate sovereign immunity in the context of surcharges on parking placards); Toledo v. Sanchez, 454 F.3d 24, 40 (1st Cir. 2006) ("Title II, as it applies to the class of cases implicating the right of access to public education, constitutes a valid exercise of Congress' § 5 authority[.]); Hale v. Mississi pp i, 2007 WL 3357562, at *8 (S.D. Miss. Nov. 9, 2007) ("Title II is not a 'congruent and proportional" response in the context of state prisons."). In Toledo and Bowers v. Nat'! Colle g iate Athletic Ass'n, 475 F.3d 524 (3d Cir. 2007), the First and Third Circuit Courts of Appeals determined Title II of the ADA was an appropriate use of § 5 legislative powers within the public education context. See Toledo, 454 F.3d at 40; Bowers, 475 F3d at 555-56.
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constitutional rights (e.g., the lack of access to the law library or medical services and treatment). However, to require the State of Georgia to provide more than the minimum of life's necessities would be to rewrite the Constitution. See Chase, 508 F. Supp. 2d at 503 (quoting Hudson v. McMillian, 503 U.S. 1, 9 (1992), for the proposition that "'only those deprivations denying the minimal civilized measure of life's necessities are sufficiently grave to form the basis of an Eighth Amendment violation.")
Moreover, a State's classification of its prisoners "cannot [be deemed to] run afoul of the Equal Protection Clause if there is a rational relationship between the disparity of treatment and some legitimate governmental purpose." Garrett, 531 U.S. at 367 (internal citation omitted). The "burden is upon the challenging party to negative any reasonably conceivable state of facts that could provide a rational basis for the classification." Id. In the context of prisons, the "requirements of Title II surpass the rights secured by the Constitution", thus making a "substantive change in the governing law." Hale, 2007 WL 3357562, at * 8 (pointing to Garrett's reasoning that the accommodation duty required by the ADA far exceeds what is constitutionally required in that it does not require, as the Constitution does, that the complaining party negate reasonable bases for the employer's decision). Thus, Title II validly abrogates sovereign immunity within a prison's walls only to the extent it reaches conduct that also violates the Constitution. 12 This portion of Defendants' Motion is granted.

AO 72A (Rev. 8/82)

12 In reaching this conclusion, the undersigned is ever mindful of a court's deference to the discretion of prison authorities and state Correctional Departments in the administration of its prisons. The undersigned is mindful, as well, that the courts in Hale and Chase found that Title II did not validly abrogate sovereign immunity in instances where prisoners sought relief after being denied services to which they were not constitutionally entitled. These cases likely present different scenarios than that before this Court; nonetheless, the outcome of the abrogation issue before this Court should be the same, as finding sovereign immunity to be abrogated based on the present facts would redefine constitutional protections in a prison setting. See Cit y of Boerne, 521 U.S. at 519.
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IV. Mootness of Injunctive Relief Claims Defendants assert that Plaintiff's claims for injunctive relief should be dismissed
as moot because Plaintiff is no longer housed at GSP or ASMP. Plaintiff contends that his claims for injunctive relief should not be dismissed as moot because these claims are capable of repetition. Plaintiff alleges that it is reasonable to assume that he could be transferred back to GSP or ASMP in the future and could be subjected to the same conditions as he has in the past.
Under Article Ill of the Constitution, federal courts may only hear "cases or controversies." Lutan v. Defenders of Wildlife, 504 U.S. 555, 559-60 (1992). "A [claim] is moot when it no longer presents a live controversy with respect to which the court can give meaningful relief." See Ethredqe v. Hail, 996 F.2d 1173, 1175 (11th Cir.1993). A claim can still be considered if a court lacks "assurance that there is no reasonable expectation that the alleged violation will recur," or, as it is commonly stated, the situation is "capable of repetition, yet evading review[.]" DiMaio v. Democratic Nat'l Committee, 555 F.3d 1343, 1345 (11th Cir. 2009). "However, once a prisoner has been transferred, injunctive relief with respect to his confinement at his former place of incarceration is no longer available." Hampton v. Federal Correctional Institution, 2009 WL 1703221, *3 (N.D. Ga. June 18, 2009) (citing McKinnon v. Tallade g a County, 745 F.2d 1360, 1363 (11th Cir.1984)); Hail v. Kaiser, 201 F.3d 447, *3 (10th Cir. 1999) (Table).
Plaintiff has been transferred to the Georgia Diagnostic and Classification Prison from ASMP and GSP. While the undersigned recognizes that, under the law, Plaintiff's

AU 72A (Rev. 8/82)

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claims for injunctive relief should be dismissed, the undersigned also recognizes that Plaintiff could very well be transferred back to GSP or ASMP before the resolution of this case. Accordingly, the Court defers ruling on this portion of Defendants' Motion at this time.
CONCLUSION Based on the foregoing, Defendants' Motion for Summary Judgment is GRANTED in part and DENIED in part.
2 SO ORDERED, this / -day of September, 2009.
VIES E. GRARAM ITED STATES MAGISTRATE JUDGE

AC) 72A

(Rev. 8/82)

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 Case 6:98-cv-00109-JEG Document 539 Filed 10/15/10 Page 1 of 26

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF GEORGIA
STATESBORO GEORGIA

TRACY ANTHONY MILLER, Plaintiff,
VS. HUGH SMITH, et al.,
Defendants.

) ) ) ) CIVIL ACTION NO. ) ) 6:98-109-JEG ) ) )

MOTION FOR ENTRY OF DISMISSAL WITH PREJUDICE AND BRIEF IN SUPPORT

COME NOW the Defendants, by and through counsel, Thurbert E. Baker, the

Attorney General for the State of Georgia, and hereby move for enforcement of the

private settlement agreement entered into by the parties and for the entry of dismissal

with prejudice, with no continuing jurisdiction, showing the Court the following:

I. Procedural History and Terms of Settlement Agreement

On August 10, 2010, the Parties voluntarily participated in mediation in order to

attempt to resolve both this litigation and Miller v. Owens, 1:05-cv-153, currently

pending in the Southern District of Georgia before Judge Bowen. Although the Parties

were not successful on that date, their efforts continued, and after several proposals,

counter-proposals, and settlement drafts, reached an agreement which was memorialized

in a final Settlement Agreement that has been executed by the Parties (“Agreement”).

(See Exhibit A, attached hereto).

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The Agreement provides that the settlement:
it is intended to resolve all the claims raised in Miller’s suit entitled Miller v. Smith, et. al., 6:98-cv-109-JEG, pending in the United States District Court for the Southern District of Georgia together with any and all disputes, claims or demands between Miller and GDC, its officers and employees.
(Exhibit A, p. 1, ¶ B).
Under the Agreement, Defendants agreed to pay to Plaintiff the amount of
$50,000, and to pay to his attorneys the amount of $90,000. (Exhibit A, p. 4, ¶ B). In
exchange, Plaintiff agreed to release his claims. The Agreement contains a mutual
release provision that provides:
Miller, for and in consideration of the performance of the above financial terms, does hereby and for the heirs, executors, administrators, successors and assigns of Miller acquit, remise, release and forever discharge the GDC, Brian Owens, James Donald, Johnny Sikes, Dr. Joseph Paris, Dr. Carolyn Mailloux, Victor Walker, Lisa Bozeman, Dennis Brown, Hugh Smith, Dr. Sharon Lewis, T.J. Conley, Don Jarriel, Dane Dasher, Dr. Tommy Jones, Tom King, and their agents, servants, employees, heirs, executors, administrators, successors, predecessors and assigns from any and all claims, fees, demands, rights, and causes of action brought, or that could have been brought, including claims for attorneys fees and costs of court, in Tracy Miller’s Complaint and Amended Complaint filed in Miller v. Smith, et. al., Civil Action File No. 6:98-CV-109-JEG in the United States District Court for the Southern District of Georgia, Statesboro Division (the “Claims”), and all Complaints and Amended Complaints in Miller v. Owens, Civil Action File No. 1:05-cv-153-DHB in the United States District Court for the Southern District of Georgia, Augusta Division, and any and all claims, demands, rights, and causes of action, that have accrued as of the date of this Agreement. It is further the intention of Miller that this Agreement shall be a full settlement, satisfaction, release and discharge of GDC, together with its officers, employees, and medical providers, from any and all claims, actions, causes of action and demands, including claims for attorney’s fees, arising from any act or omission of any of the released parties at any time from the beginning of time until the date of this agreement.
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GDC for and in consideration of this Agreement, does hereby acquit, remise, release and forever discharge Miller, together with his heirs, executors, and administrators, from any and all claims, demands, rights, and causes of action brought, or that could have been brought, in Civil Action File No. 6:98-CV-109JEG in the United States District Court for the Southern District of Georgia, Statesboro Division (the “Claims”). (Exhibit A, pp. 4-5, ¶E.2). The Court was advised of the settlement on August 19, 2010, and it was reported that a stipulation of dismissal would be forthcoming “after the checks cleared.” (Exhibit B, e-mail correspondence dated August 19, 2010). No mention of continuing jurisdiction was made, nor did Plaintiff indicate that he would ask the Court to approve or supervise the terms of the Agreement, or would request that its terms be incorporated into a dismissal order or that the Court retain jurisdiction. (Exhibit B). In accordance with the Agreement, Defendants requested that Plaintiff execute a Stipulation of Dismissal pursuant to Rule 41(a)(1) in the Miller v. Owens case. (Exhibit C, e-mail correspondence and Stipulation of Dismissal). The Stipulation of Dismissal dismisses Miller v. Owens with prejudice, with the Parties to bear their own costs. (Exhibit C). It does not incorporate the terms of the Agreement and does not provide for continued jurisdiction in the district court. Plaintiff has apparently executed the Stipulation of Dismissal as written, but has not filed it.1 Defendants continued their compliance with the terms of the Agreement by scheduling a re-inspection of the cells identified in the Agreement, by tendering
1 Defendants will also be filing a motion for dismissal with prejudice in Miller v. Owens.
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settlement funds to Plaintiff and his counsel, by paying the mediator’s fees in full, and by taking the administrative steps necessary to forgive the debt Plaintiff owed to GDC.
On September 14, 2010, this Court entered an order administratively closing this action and giving the parties 60 days to file a “dismissal judgment” under FED. R. CIV. P. 41(a)(2) incorporating the terms of the Agreement to allow the Court to retain jurisdiction to enforce the Agreement. (Doc. 537). If the Parties fail to do so, a dismissal with prejudice will be entered. (Doc. 537). Defendants immediately advised Plaintiff that the private Agreement entered into by the Parties did not provide for the entry of a judgment or a consent decree, and that it was expected and intended that a Stipulation of Dismissal under Rule 41(a)(1), in the same form and substance as was executed by Plaintiff in Miller v. Owens, 05-153, would be filed. (Exhibit D, e-mail September 14, 2010).
Plaintiff responded by stating that the dismissal entered in the instant action “would be like Mr. Miller has previously signed,” and that there was no intention to ask the Court for anything different. (Exhibit D). As noted, the Stipulation of Dismissal signed by Plaintiff in Miller v. Owens was prepared in accordance with FED. R. CIV. P. 41(a)(1) and did not incorporate the terms of the Agreement or provide for continued jurisdiction to enforce the terms of the Agreement.
A disagreement arose between the Parties regarding the scope of Defendants’ obligations to “waive the debt” in Plaintiff’s trust account. The Agreement provides that “GDC agrees to waive any debt in Miller’s inmate trust account as of the date of the
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execution of this agreement.” (Exhibit A, p. 4). Plaintiff’s trust account has various charges for debt Plaintiff has incurred. Some debt has been charged by GDC for things such as postage, correspondence materials, disciplinary report fees, and reimbursement for damage to state property.
The trust account also includes entries for court fees incurred by Plaintiff in various state and federal courts. These courts have placed claims on Plaintiff’s funds and, in the case of the federal courts, the court claims were made under the Prison Litigation Reform Act (“PLRA”). (See e.g., Exhibit E, illustrative correspondence from courts). Under the PLRA, an inmate may pay court fees in installments, in amounts up to 20% of the balance/deposit in the inmate’s trust account. When courts make such a claim on a trust account, the entire debt is posted to the inmate’s trust account, but the amount is paid under the provisions of the PLRA in the event that the inmate ever deposits any funds in the account. GDC does not pay inmate court fees.
The Agreement does not require GDC to pay debts owed by Plaintiff to thirdparties, like the courts. Instead, it requires GDC to “waive” the debt Plaintiff owed to it. That task has been accomplished. Still, in an attempt finally resolve this case without further litigation, as additional consideration Defendants offered to pay the courts fees for which Plaintiff was indebted, including fees incurred in cases that were not included in the trust account, but which were learned of as Defendants’ confirmed the amount of the court fees. In exchange, Defendants required from Plaintiff further consideration, as set
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forth in a proposed Supplemental Settlement Agreement (“Supplemental Agreement”). (Exhibit F, Supplemental Agreement).
The Supplemental Agreement sets forth the precise amounts GDC was offering to pay on behalf of Plaintiff, the court to which the payment would be made, and the case to which the payment would be applied. The Supplemental Agreement required Plaintiff to acknowledge receipt of the settlement proceeds. In addition, since the court fee issue remained the last issue to be resolved to bring this matter to a final conclusion, and because the settlement checks had cleared and funds were disbursed, yet no stipulation of dismissal had been presented to Defendants, the Supplemental Agreement provided that Plaintiff would dismiss with prejudice the instant action and Miller v. Owens within 2 days after Plaintiff’s trust account was credited. (Exhibit F).
While Plaintiff was amenable to having GDC pay his debts, he advised that he could not dismiss the litigation unilaterally. (Exhibit G, October 1, 2010 e-mail correspondence and proposed consent dismissal). Plaintiff instead proposed, for the first time, the entry of an order of dismissal with prejudice under Rule 41(a)(2), which incorporated the terms of the Agreement. (Exhibit G). Plaintiff has stated that his request for incorporation of the terms of the Agreement into the dismissal order is intended to provide him a federal cause of action for breach of contract and to allow the Court to “supervise” compliance with the Agreement. (Exhibit H, multiple October 5, 2010 e-mail correspondence). As set forth below, a dismissal order that incorporates the
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terms of a settlement agreement is a judgment and consent decree. Smalbien v. City of Daytona Beach, 353 F.3d 901, 905 (11th Cir. 2003).
The entry of a consent decree was not intended by the Parties under the terms of their private settlement Agreement, but Plaintiff refuses to file a Rule 41(a)(1) Stipulation of Dismissal and insists that any dismissal incorporate the terms of the Agreement, even though he acknowledges that the Agreement does not provide for his requested relief. (Exhibit H).
In accordance with the unambiguous terms of the private Agreement, Defendants now move for the entry of a dismissal with no judicial enforcement. Should it be determined that there is an ambiguity as to the form of the dismissal, a plethora of parol evidence shows that the intent of the Parties was to enter into a private Agreement that would finally dispose of all issues within the subject matter of both this litigation and in Miller v. Owens. No consent decree was agreed to or contemplated, and the only remedy intended for a breach of the Agreement is a breach of contract action.
Moreover, Plaintiff’s new request for the entry of a consent decree is contrary to the limitations on prospective relief imposed under the Prison Litigation Reform Act (“PLRA”) and would also exceed the scope of this Court’s mandate from the Eleventh Circuit. Finally, in the event that it is determined that the Agreement is not a private settlement agreement, such that it could permit for the entry of a consent decree, then
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there was no meeting of the minds. Thus, the Agreement is void. In such an instance, the Agreement would also be void because it would lack consideration.
II. ARGUMENT AND CITATIONS TO AUTHORITY A. Applicable Law
1. A dismissal order wherein the Court retains jurisdiction to enforce the terms of the settlement agreement is the equivalent of judgment and consent decree
When a court’s dismissal order either incorporates the terms of a settlement agreement or expressly retains jurisdiction to enforce the settlement, the agreement functions as a consent decree. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 380-82 (1994); Disability Advocates and Counseling Group, Inc. v. E.M. Kendall Realty, Inc., 366 Fed. Appx. 123, 125 (11th Cir. 2010); Smalbein v. City of Daytona Beach, 353 F.3d 901, 905 (11th Cir. 2003); Am. Disability Assoc., Inc. v. Chmielarz, 289 F.3d 1315, 1320-21 (11th Cir. 2002).
The Prison Litigation Reform Act (“PLRA”) distinguishes private settlement agreements from consent decrees. The former are not subject to court enforcement, whereas the latter are entered by the court. Rowe v. Jones, 483 F.3d 791, 796 (11th Cir. 2007) (citing 18 U.S.C. § 3626(g)(1)). “Judicial enforcement is [] the critical distinction between private settlement agreements and consent decrees.” Id.
There are substantial and significant differences between a private settlement and a consent decree. A consent decree is a judgment. Johnson v. Fla., 348 F.3d 1334, 1341
8

Case 6:98-cv-00109-JEG Document 539 Filed 10/15/10 Page 9 of 26
(11th Cir. 2003). It functions like any other court order or judgment. Rowe, 483 F.3d at 797. Judicial enforcement affects the remedies available in the event of a breach. Id. at 796. A breach of a consent decree can result in “judicial sanctions,” including citation for contempt. Id. at 797. Other judicial sanctions include remedial orders, including injunctive relief. Dougan v. Singletary, 129 F.3d 1424, 1425 (11th Cir. 1997); Reynolds v. Roberts, 207 F.3d 1288, 1300 n.22 (11th Cir. 2000). Moreover, when a court retains jurisdiction to enforce a settlement agreement, the plaintiff becomes the “prevailing party” and can be entitled to an award of attorneys fees. Smalbein, 353 F.3d at 905, 90607. On the other hand, the only remedy for a breach of a private settlement agreement is a state law breach of contract action. 18 U.S.C. § 3626(c)(2)(A); Rowe, 483 F.3d at 795.
Here, should this Court incorporate the terms of the Agreement into a dismissal order, or retain jurisdiction to enforce its terms, it will convert a private settlement agreement into a consent decree and judgment – something that was not intended under the Agreement and was never agreed to by Defendants.
2. The interpretation of settlement agreements The construction and enforcement of a settlement agreement, including in cases arising out of federal law, is governed by the state’s general contract law. Resnick v. Uccello Immobilien GMBH, Inc., 227 F.3d 1347, 1350 (11th Cir. 2000). Under Georgia law, a settlement agreement must meet the same requirements of formation as any other contract. W.C. Wong v. Bailey, 752 F.2d 619, 621 (11th Cir. 1985). To form a contract,
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there must be a meeting of the minds on all material terms. Id. (citing O.C.G.A. § 13-32; Burns v. Dees, 252 Ga. App. 598, 601 (2002)).
Under Georgia law, any intention of the parties for the court to retain jurisdiction to enforce the terms of a settlement agreement must be included in the agreement itself. Daniel v. Daniel, 216 Ga. 567, 568 (1961) (finding that court did not have jurisdiction to enforce a settlement agreement because such a provision was not included in the agreement and the court could not reserve jurisdiction in its order when the parties did not consent). Even then, a court may not retain ongoing jurisdiction over the matter for an indefinite period of time. See Jorgensen v. Alsop, 240 Ga. App. 565, 566 (1999).
Settlement agreements should be interpreted so as to give meaning to all terms. Young v. Stump, 294 Ga. App. 351, 353 (2009). Courts should not interpret contracts in a manner to give some terms no effect. Id. Where the language of an agreement is definite and unambiguous, the agreement should be enforced according to its terms. Ins. Concepts, Inc. v. Western Life Ins. Co., 639 F.2d 1108, 1112 (11th Cir. 1981). Importantly, an agreement is not ambiguous merely because the language is not as comprehensive as it could have been. Id. Where the intent of the parties is reasonably clear from the language of the agreement and surrounding circumstances, it is enforceable. Id.
Conversely, a term is ambiguous if it is duplicative, uncertain, indistinct, difficult to comprehend, or open to various interpretations. Vinnett v. Gen. Elec. Co., 271 Fed.
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Case 6:98-cv-00109-JEG Document 539 Filed 10/15/10 Page 11 of 26
App. 908, 912 (11th Cir. 2008). A term is not ambiguous merely because a party has a change of mind after an agreement has been reached. Pourreza v. Teel Appraisals & Advisory, Inc, 273 Ga. App. 880, 883 (2005); W.C. Wong, 752 F.2d at 621.
When a term is ambiguous, courts must apply the rules of construction to determine the intent of parties. In re Estate of Sims, 259 Ga. App. 786, 788 (2003). Under the rules of construction, words are given their ordinary meaning. Id. at 789 (citing Stinchcomb v. Clayton Cnty. Water Auth., 177 Ga. App. 558 (1986)). Under Georgia law, parol evidence is admissible to explain ambiguous language. Southern Stone Co. v. Singer, 665 F.2d 698, 701 (1982). Whether or not a term is ambiguous is a question of law. Ins. Concepts, Inc., 639 F.2d at 1112. B. The Parties Have a Binding Private Agreement That Requires Plaintiff to
Dismiss This Lawsuit with Prejudice, With no Continuing Enforcement Jurisdiction in this Court Defendants have performed all of their obligations under the Agreement. The Agreement releases and forever discharges Defendants and all of their assigns from any and all claims, rights, and demands that Plaintiff has against them. It does not contemplate the entry of a consent decree, which would provide to Plaintiff continuing claims and rights. If the Agreement is found to be ambiguous as it relates to the form of the dismissal, parol evidence shows that the entry of a consent decree was never the Parties’ intent.
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1. Defendants have performed under the Agreement Defendants have performed all of their obligations under the Agreement. All settlement proceeds have been paid to Plaintiff and his attorneys, the mediator’s fees have been paid in full, GDC has waived the debt owed to it by Plaintiff, and a re-inspection of the cells referenced in the Agreement has occurred. The Agreement, however, does not require GDC to affirmatively pay Plaintiff’s third-party debts, and GDC has not done so as a result of Plaintiff’s refusal to execute the Supplemental Agreement. The relevant provision in the Agreement provides: Additionally, the GDC agrees to waive any debt in Miller’s inmate account as of the date of execution of this Agreement. The Defendants also agree to pay the mediator’s fee in this case. (Exhibit A, p. 4, ¶ E) (emphasis added). “A waiver is a voluntary relinquishment of a known right, benefit, or advantage, which, except for such waiver, the party would otherwise have enjoyed.” Mut. Life Ins. Co. of New York v. Durden, 9 Ga. App. 797, 797 (1911). A party cannot waive a right that it does not possess. In re Estate of Sims, 259 Ga. App. at 792. GDC is required only to waive the debt owed to it by Plaintiff. GDC has never expended funds to the courts on Plaintiff’s behalf. Instead, it simply made an accounting entry to assist the courts in recovering the debts owed to them, as they were required to do under the PLRA. GDC is not required to waive something that it had no right, benefit, or advantage to, and that it would not have “enjoyed” but for the waiver. Defendants do not
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have a “right” to the court fees owed by Plaintiff to the courts, and thus could not have waived those rights.
Nor does the Agreement require GDC to “pay” Plaintiff’s court fees. The word “waive” has a meaning different from the word “pay,” as illustrated by the very next sentence in the Agreement that requires Defendants to “pay” the mediator’s fees. Had the Agreement intended Defendants to also “pay” Plaintiff’s debts, the word “pay” would have been used in the preceding sentence. It was not.
To the extent that the term “waive” is considered to be ambiguous, it should be construed against Plaintiff. Generally, ambiguities are construed against the drafter. Young, 294 Ga. App. at 353 (citing O.C.G.A. § 13-2-2(5)). See also Hertz Equip. Rental Corp. v. Evans, 260 Ga. 532, 533 (1990) (“if a contract is capable of being construed in two ways, it will be construed against the preparer and in favor of the non-preparer.”).
In this case, the language in question was drafted by Plaintiff. (Exhibit I, August 12, 2010 e-mail correspondence and revised settlement agreement). Thus, if there is any ambiguity concerning whether “waive” means “pay,” such ambiguity should be construed against Plaintiff.
2. The Agreement unambiguously requires a dismissal with prejudice, not a consent decree
Settlements are generally considered to be a final disposition of any claim against a party arising out of the subject matter, “unless remaining claims are specifically reserved” by a party. City of Demorest v. Roberts & Dunahoo Properties, LLC, 288 Ga.
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App. 708, 712 (2008); Carey v. Houston Oral Surgeons, LLC, 265 Ga. App. 812, 817 (2004). When an agreement states that it is a “full, complete, and final disposition of all disputes,” no claims are reserved. City of Demorest, 288 Ga. app at 712.
Here, the subject matter of the Agreement is clear and unambiguous. Under the Agreement, Plaintiff released and forever discharged GDC, Defendants, and all of its officers “from any and all claims, fees, demands, rights, and causes of action” arising out of the instant action and Miller v. Owens. The Agreement also provides that,
it is further the intention of Miller that this Agreement shall be a full settlement, satisfaction, release and discharge of GDC, together with its officers, employees, and medical providers, from any and all claims, actions, causes of action and demands, including claims for attorney’s fees, arising from any act or omission of any of the released parties at any time from the beginning of time until the date of this agreement. (Exhibit A, pp. 4-5, ¶E2) (emphasis added). Plaintiff did not retain any claims or rights. Specifically, he did not retain any rights that would accrue to him as the result of an entry of a consent decree. The clear and unambiguous language shows that it was the Parties’ intent that all possible claims, demands, and rights would be released, and that the settlement was intended to resolve and discharge all claims and rights against Defendants. A general release like the one at issue here was found by the Eleventh Circuit to give up all rights to any remedy in connection with the underlying action. See Kobatake v. E.I. DuPont DeNemours and Co., 162 F.3d 619, 624 (11th Cir. 1999).
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There was no intention to enter a judgment and consent decree that would subject Defendants into perpetuity to actions for contempt, injunctive relief, supervision, and possibly attorneys fees. Such a result would render the language of the Parties’ intent and the mutual release language meaningless.
A settlement agreement will typically moot a case. United Airlines, Inc. v. McDonald, 432 U.S. 385, 400 (1977). That is exactly what the Agreement requires – finality to litigation through the entry of a final dismissal. It does not require, or permit, the entry of a judgment and consent decree.
3. Parol evidence shows that the intent of the parties was the entry of a final dismissal with prejudice, and a consent decree was never contemplated
If the language in the Agreement is determined to be ambiguous, parol evidence may be used to ascertain the parties’ intent. See Southern Stone Co., Inc., 665 F.2d at 701. Parol evidence can show a party’s assent to a term, which can be implied from counsel’s failure to object to the term. W.C. Wong, 752 F.2d at 621. Similarly, a party’s conduct after execution of an agreement can be considered as parol evidence regarding the parties’ intent. Univ. Computing Co. v. Lykes-Youngstown Corp., 504 F.3d 518, 531 (11th Cir. 1974). A contract that is originally indefinite may later acquire more precision because of subsequent words or actions of the parties. Sanders v. Commercial Cas., Ins., 226 Ga. App. 119, 121 (1997); Arrow Exterminators, Inc. v. Gates Condo. Homeowners Assoc., Inc., 294 Ga. App. 620, 622 (2008).
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There is sufficient parol evidence, from both before and after the execution of the Agreement, to show that the Parties intended to enter into a private settlement agreement, and not a consent decree. For example: - Defendants have always made clear that they would not enter into a consent decree, and that they would not enter into any settlement agreement that would entail being summoned into court on a regular basis. (Exhibit J, January 12, 2009 correspondence; Transcript of Settlement Conference of February 19, 2009, p. 23). - During the drafting of the Agreement, Plaintiff proposed a provision that allowed an award of attorneys fees, expenses, and costs to the prevailing party in any action to enforce the terms of the Agreement. (Exhibit I). Defendants refused to agree to the provision, expressing their intent that Plaintiff’s sole remedy in the event of a breach was a breach of contract action. (Exhibit K, August 13, 2010 e-mail correspondence). Plaintiff assented to the removal of the attorney fee provision. Since there is no breach of contract claim over which the federal courts have jurisdiction, see Kokkonen, 511 U.S. at 375, any breach of contract claim would necessarily have had to have been contemplated as state court action. Even in the face of this legal reality, Plaintiff did not express a desire to include within the Agreement a provision for the Court to incorporate the terms of the Agreement or retain jurisdiction.
16

Case 6:98-cv-00109-JEG Document 539 Filed 10/15/10 Page 17 of 26
- The mediator will confirm that none of the Parties agreed to continuing jurisdiction as a term of settlement.2 - Plaintiff did not disagree when it was reported to the Court that the case had settled and that a stipulation of dismissal would be forthcoming. (Exhibit B). A stipulation of dismiss under Rule 41(a)(1) allows a plaintiff to dismiss a complaint without an order of the court. FED. R. CIV. P. 41(a)(1). On the other hand, Rule 41(a)(2) allows a court to dismiss an action at a “plaintiff’s request.” FED. R. CIV. P. 41(a)(2). Rule 41(a)(2) has no application when the parties dismiss by agreement. This distinction is important. When a lawsuit is dismissed by stipulation, “the trial court plays no role in overseeing or approving any settlement proposals.” United States v. City of Miami, Fla., 614 F.2d 1322, 1330 (11th Cir. 1980). Thus, by assenting to the entry of a stipulated dismissal, Plaintiff necessarily assented to a Rule 41(a)(1) dismissal that would not entail oversight or approval by the Court. - As the terms of the Agreement were being finalized, Plaintiff’s counsel stated, “We haven’t expressly discussed the mechanics of how the settlement works, but I assume our approach is that, we get the agreement executed, and once the money is in Miller’s inmate account and our check is cleared, we can jointly request dismissal from
2 The mediator in this case was Arthur Glaser. Mr. Glaser was contacted when it was realized that the form of dismissal had become an issue. He stated to defense counsel that if asked, he would tell the Court that no one agreed to continuing jurisdiction. Mr. Glaser informed defense counsel that he had made the same statement to Plaintiff’s counsel, thus it is assumed that Plaintiff will not dispute Mr. Glaser’s statement. In the event that Plaintiff does so dispute, Defendants reserve the right to introduce Mr. Glaser’s testimony to the Court.
17

Case 6:98-cv-00109-JEG Document 539 Filed 10/15/10 Page 18 of 26
the court.” (Exhibit L, e-mail correspondence of August 16, 2010). Again, a “joint request” has no meaning if a dismissal order is to be sought under Rule 41(a)(2), which allows for a plaintiff to seek the entry of a dismissal order. Thus, Plaintiff’s reference to a stipulation of dismissal had to have been a reference to Rule 41(a)(1). Under that rule, the court does not enter an order and plays no role in overseeing or approving the settlement. See City of Miami, Fla., 614 F.2d at 1330. - Plaintiff has agreed to a Rule 41(a)(1) Stipulation of Dismissal in Miller v. Owens, 05-cv-153, and represented that a dismissal similar in form and substance would be sought in the instant action. (Exhibit D). This is in keeping with the Agreement itself, which releases the instant action and the Miller v. Owens in an identical manner. There is simply no basis for concluding that the Parties intended that a final dismissal with no continuing enforcement would be entered in Miller v. Owens, but that a judgment and consent decree would be entered in the instant action. - Plaintiff has indicated that the desire for court “supervision” has arisen only recently as the result of new “concerns.” (Exhibit H). Thus, Plaintiff himself admits that judicial enforcement was not intended at the time the Parties executed the Agreement. - Plaintiff’s pro se motion “pursuant to FRCP 41(a)(2)” to “incorporate the terms” of the Agreement was filed on October 1, 2010. (Doc. 538). Plaintiff’s stated reason for the motion was after 6 weeks his court fees had not yet been paid. (Doc. 538). Thus, Plaintiff clearly sought a dismissal under Rule 41(a)(2) only as the result of post-
18

Case 6:98-cv-00109-JEG Document 539 Filed 10/15/10 Page 19 of 26
execution events, not because it was the intent of the Parties at the time of execution. And, notably, Plaintiff’s pro se motion indicates his intent to not dismiss with prejudice in any form. (Doc. 538).
Here, the parol evidence shows that Plaintiff intended to enter into a private settlement which did not include further involvement of the Court. This is in keeping with the general rule that in private lawsuits “settlement of the dispute is solely in the hands of the parties. If the parties can agree to terms, they are free to settle the litigation at any time and the court need not and should not get involved.” United States v. City of Miami, Fla., 614 F.2d 1322, 1330 (11th Cir. 1980).
The Parties settled this matter and there was no intent to have continued action by the Court. The Agreement should be enforced as a private agreement and this case should be dismissed with prejudice, with no continuing enforcement. C. The PLRA Prohibits the Entry of a Consent Decree is This Case
A consent decree cannot be entered because it is prohibited by the PLRA. The PLRA limits the scope of prospective relief that a court may grant in cases involving prison conditions. Rowe, 483 F.3d at 794. The PRLA states that:
Prospective relief in any civil action with respect to prison conditions shall extend no further than necessary to correct the violation of the Federal right of a particular plaintiff or plaintiffs. The court shall not grant or approve any prospective relief unless the court finds that such relief is narrowly drawn, extends no further than necessary to correct the violation of the Federal right, and is the least intrusive means necessary to correct the violation of the Federal right. The court shall give substantial weight to any
19

Case 6:98-cv-00109-JEG Document 539 Filed 10/15/10 Page 20 of 26
adverse impact on public safety or the operation of a criminal justice system caused by the relief. 18 U.S.C. § 3626(a)(1)(A). A consent decree is prospective relief and is subject to these restrictions. 18 U.S.C. § 3626(c)(1); Rowe, 483 F.3d at 795. The Eleventh Circuit has found that these provisions are illustrative of Congress’ intent to limit: the use of court-enforced consent decrees to resolve prison conditions suits, while freely allowing the use of private settlement agreements. Parties may continue to enter such agreements to avoid lengthy and burdensome litigation, but they cannot expect to rely on the court to enforce the agreement. Rowe, 483 F.3d at 797 (citing H.R. Rep. No. 104-21, at 24-25 (1995)). Here, none of the necessary findings have been made. There has been no finding that the Agreement extends no further than necessary to correct the violation of the Federal right of Plaintiff, there has been no finding that the Agreement is narrowly drawn, and there has been no finding that the Agreement is the least intrusive means to correct the violation of the Federal right. Indeed, such findings cannot be made in the absence of a trial. See City of Miami, Fla., 614 F.2d at 1332. Moreover, any such consent decree – which is misnomer in this case given that Defendants have not consented – would clearly fall far short of reaching these requirements. The scope of a consent decree must be determined from the “four corners” of the document, which in this case is the Agreement. Firefighters Local Union No. 1784 v. Stotts, 467 U.S. 561, 574 (1984). See also Norfolk v. Southern Corp. v.
20

Case 6:98-cv-00109-JEG Document 539 Filed 10/15/10 Page 21 of 26
Chevron, U.S.A., Inc., 371 F.3d 1285, 1288 (11th Cir. 2004) (even when a consent decree is actually agreed upon, its scope is limited to those matters upon which the parties have consented). The Agreement clearly provides Plaintiff with more relief than is provided under any federal law.
For example, the Agreement requires GDC to house Plaintiff only in certain cells, (Exhibit A, p.2), allows Plaintiff to serve disciplinary sanctions only in certain cells, (Exhibit A, p. 2), requires Plaintiff to have access to a particular type of shower chair, (Exhibit A, p. 3), provides for “adequate” supplies of medical equipment, requires a “clean environment” and “appropriate receptacles for waste,” and “regular documentation” regarding medical supplies. (Exhibit A, p. 3). The Agreement also requires GDC to maintain a regularly updated written medical Treatment Plan in Plaintiff’s medical file, and generally provides that GDC will comply with its Standard Operating Procedures. (Exhibit A, pp. 3-4).
These provisions, and others like it, go far beyond what is required by the Constitution, the Americans with Disabilities Act, and the Rehabilitation Act. Even if a violation of a federal right had been found, which again it was not, the Agreement goes far beyond the narrow and least intrusive means necessary to rectify any violation.
Converting this private settlement agreement into a consent decree would result in the imposition of prospective relief that is not permissible under the PLRA. Even outside the prison context, “indefinite federal court oversight of state institutions is disfavored,
21

Case 6:98-cv-00109-JEG Document 539 Filed 10/15/10 Page 22 of 26
and a federal court should terminate supervision once the defendant comes into compliance with the law.” Johnson, 348 F.3d at 1341. Here, Plaintiff seeks a consent decree that essentially subjects GDC to perpetual court supervision over the operation of its facilities in general and the terms of Plaintiff’s incarceration in particular. The PLRA does not permit such a result. Thus, Plaintiff’s post-execution efforts to obtain a consent decree should be refused. D. If the Agreement Does Not Constitute a Private Settlement Agreement, Then
the Agreement is Void If the Agreement is not a private settlement agreement such that a consent decree could be entered, then the Agreement is void for two reasons: 1) there was no meeting of the minds, and 2) it lacks legal consideration. In considering the enforceability of a settlement agreement, a court is limited to those terms upon which the parties have mutually agreed. Arrow Exterminators, Inc., 294 Ga. App. at 622; Pourreza, 273 Ga. App. at 882. When indefiniteness in subject matter is so extreme so as to present nothing upon which the contract can operate, it renders the contract void. Sanders v. Commercial Cas., Ins., 226 Ga. App. 119, 120 (1997). Importantly, a district court may not take a settlement agreement and change its crucial terms to enter a consent decree. Smalbein, 353 F.3d at 912. Here, the Agreement does not provide for, or even mention, a consent decree. There is simply nothing in the Agreement upon which a consent decree can operate.
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Case 6:98-cv-00109-JEG Document 539 Filed 10/15/10 Page 23 of 26
And, a court cannot “require the parties to accept a settlement to which they have not agreed.” John V. Evans v. Jeff D., 475 U.S. 717, 726 (1986).
Defendants intended to enter into a private settlement agreement. They never agreed to have a consent decree or judgment entered against them. To force an “involuntary consent decree” upon a defendant in such a situation would eviscerate any motivation to settle litigation. No defendant would ever enter into a settlement agreement to compromise doubtful rights if that settlement could result in a judgment and consent decree against it without its consent.
There was no meeting of the minds regarding the entry of a judgment and consent decree, and thus should this Court determine that the entry of a consent decree is permitted, the Agreement is void. Moreover, in the event that Plaintiff can satisfy his dismissal obligations through the entry of a judgment and consent decree, the Agreement lacks sufficient consideration and is void for this reason as well.
Unlawful terms in a contract are not enforceable. Unami v. Roshan, 290 Ga. App. 317, 319 (2008). The only consideration offered by Plaintiff is the release and forever discharge of his claims, rights, and demands. If this obligation can be accomplished through the entry of a consent order which, as set forth above, would be violative of the PLRA, then the term is unlawful. If an unlawful term constitutes the only consideration of a party, then the agreement cannot stand. Unami, 290 Ga. App. at 320.
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Case 6:98-cv-00109-JEG Document 539 Filed 10/15/10 Page 24 of 26
Should this Court determine that the Agreement is not a private agreement, then the Agreement is void. Plaintiff and his attorneys should be required to return all proceeds and reimburse Defendants for all payments made in reliance on the Agreement, Defendants should be permitted to debit Plaintiff’s inmate trust account for the amounts waived, and this litigation should proceed. 3 See Smalbein, 353 F.3d at 912 (Carnes, J. concurring). E. The Entry of a Consent Decree Would Exceed the Scope of the Eleventh
Circuit’s Mandate The Eleventh Circuit remanded with the narrow instruction to make specific determinations regarding Plaintiff’s claims against Georgia State Prison. (Doc. 190). The scope of a putative consent decree is the Agreement. See Firefighters Local Union No. 1784, 467 U.S. at 574. The Agreement includes provisions related to Augusta State Medical Prison and Georgia Diagnostic Medical Prison. Should this Court enter a dismissal order which incorporates the terms of the Agreement, it would be entering a consent decree that exceeds the scope of the mandate issued in this case. The Eleventh Circuit recently reiterated its adherence to the rule that when acting under a mandate, a district court: . . . cannot vary it, or examine it for any other purpose than execution; or give any other or further relief; or review it, even for apparent error upon a
3 This includes $140,000 in settlement funds, the forgiveness of $1,373.30 for court reporter fees Plaintiff agreed to pay but which payment was waived in the settlement, and $3,430.00 for Plaintiff’s portion of the mediator’s fee. GDC has waived debt owed to it by Plaintiff in the amount of $3,690.26.
24

Case 6:98-cv-00109-JEG Document 539 Filed 10/15/10 Page 25 of 26

matter decided on appeal; or intermeddle with it, further than to settle so much as has been remanded. United States v. Ehrlich, 2010 U.S. app. LEXIS 12915, at * 3 (11th Cir. June 23, 2010). Thus, entering a consent decree which exceeds the scope of the Eleventh Circuit’s narrow mandate in this case would not be permitted.
CONCLUSION For the foregoing reasons, Defendants respectfully request that this Court enforce the terms of their private Settlement Agreement and enter a dismissal with prejudice without incorporating the terms of the agreement or retaining jurisdiction. Respectfully submitted this 15th day of October, 2010.

Thurbert E. Baker Attorney General

033887

Kathleen Pacious

558555

Deputy Attorney General

Devon Orland

554301

Sr. Assistant Attorney General

s/ Michelle J. Hirsch 357198 Michelle J. Hirsch Assistant Attorney General
s/ Susan E. Teaster 701415 Susan E. Teaster Assistant Attorney General

Department of Law 40 Capitol Square, S.W. Atlanta, GA 30334 Tel: (404) 463-8850 Fax: (404) 651-5304

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Case 6:98-cv-00109-JEG Document 539 Filed 10/15/10 Page 26 of 26

CERTIFICATE OF SERVICE

I hereby certify that on this date I have electronically filed the foregoing

DEFENDANTS’ MOTION FOR ENTRY OF DISMISSAL WITH PREJUDICE

AND BRIEF IN SUPPORT with the Clerk of Court using the CM/ECF system which

will automatically send email notification of such filing to the following attorneys of

record:

Jeffrey O. Bramlett Sarah M. Shalf Robert L. Ashe III John H. Rains IV Bondurant, Mixson & Elmore 3900 One Atlantic Center 1201 W. Peachtree St., NW Atlanta, Georgia 30309-3417

Delora L. Kennebrew U.S. Attorney’s Office - Savannah P.O. Box 8970 Savannah, GA 31412

Sasha Samberg-Champion Dept. of Justice-Appellate Section Civil Rights Division P.O. Box 14403 Ben Franklin Station Washington, DC 20044-4403

William F. Lynch Department of Justice Disability Rights Section Civil Rights Division 950 Pennsylvania Ave. N.W. Washington, D.C. 20530

This 15th day of October, 2010.
/s/ Michelle J. Hirsch Georgia Bar No. 357198 Assistant Attorney General

 
 Case 6:98-cv-00109-JEG Document 539-1 Filed 10/15/10 Page 1 of 29
EXHIBIT A

Case 6:98-cv-00109-JEG Document 539-1 Filed 10/15/10 Page 2 of 29
SETTLEMENT AGREEMENT
I. INTRODUCTION
A. This Settlement Agreement ("Agreement") is entered into by: ( 1) Plaintiff Tracy Anthony Miller; and (2) the Georgia Department of Corrections ("GDC"), including its officers, employees, and member facilities, Augusta State Medical Prison ("ASMP") and Georgia State Prison ("GSP").
B. This Agreement addresses Miller's suit against GDC, and its officers, alleging violations of his constitutional rights as wel l as of the Americans with Disabilities Act and the Rehabilitation Act, and is intended to resol ve all the claims raised in Miller's suit entitled Miller v. Smith, et. al, 6:98-cv-109-JEG, pending in the United States District Court for the Southern District of Georgia together with any and all disputes, claims or demands between Miller and GDC, its officers and employees. However, this Agreement does not serve as an acknowledgement or admjssion by GDC that corrective measures are necessary to meet the constitutional and statutory rights of Miller or any other inmate in GDC custody, nor does this agreement serve as an acknowledgement or admission by Mi11er that GDC has acted, or continues to act, in compliance with the Constitution or other laws of the United States.
C. Each and every provision of this Agreement is entered into by clear agreement of
the parties, after thorough negotiations.
D. The pat1ies agree that the provisions of this Agreement are a lawful, fair, adequate, and reasonable resolution of this lawsuit.
E. The provisions of this Agreement are binding on the GDC, without regard to whether GDC has contracted with an outside provider or vendor for any of the services which are covered under the Agreement.
II. DEFINITIONS
As used in this A greement, the following definitions apply to the terms below, without regard to case, gender, tense, or number:
A . "Effective Date" shall be the date on which this Agreement i s signed by both parties.
B. "Treatment Plan" shall mean a document that sets out, in an integrated manner,
the individualized treatments and services w be provided to the inmate patient; is
periodically reviewed; is revised in accordance with generally_accepted professional standards
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III. SUBSTANTIVE PROVISIONS

A. Accessibility of ADA Units and Facilities

l. Copies of this Agreement shall be maintained at the top of Miller's institutional fi Ie.

2.

Miller will be housed in a cell that complies with the ADA Accessibility

Guidelines for Buildings and Facilities ("ADAAG"), except in exigent circumstances

such as a riot, fire, or similar emergency, in which case he may be placed in non-

ADAAG compli ant housing assignment for no longer than until compliant housing can

be located. This provision does not apply in the event of disciplinary incidents. A list of

GDC's cun·ent ADAAG compliant cells that Miller may be placed in according to this

provision is attached hereto as Exhibit A.

3. If Plaintiff is moved to a non-compliant cell under this provision, the Warden of the facility will review Miller's housing status every 48 hours, excluding weekends and holidays, to determine whether an ADAAG compliant cell is available.

4. In the event that Miller engages in conduct that violates the disciplinary rules of GDC, and it is determined that he will be placed in a segregation cell, Miller will be housed in a segregation cell that complies with ADAAG, if one is available. If an ADAAG compliant segregation cell is not available at the time it is determined that Miller will be placed in segregation GDC will allow Miller to remain in his ADAAG compliant cell, subject to the restrictions GDC imposes upon him as a result of the conduct that violated GDC disciplinary rules, until such time as an ADAAG compliant
segregation cell becomes available.

5. Within 90 days of the execution of this Agreement, a mutually agreeable expert in ADA compliance will survey the spaces listed in Exhibit A above as necessary to confirm that the spaces are ADAAG compliant. To the extent that this expett finds that spaces are not ADAAG compliant, the GDC shall revi se Exhibit A_ to delete those spaces, and shall attach the revised lists to t his Agreement, as well as to the copy in Mil ler's institutional file.

6. If, at any time, the GDC adds an additional space to this list, it shall update Exhibit A to reflect the addition, and it shall maintain in the files of the ADA Coordinator a document (including architectural drawings, photographs, or other supporting evidence) sufficient to demonstrate the accessibility of the space

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B. Program Accessibility

1. Miller will have access to a wheelchair transfer roll-in shower chair with wheel lock mechanism.

2.

Wheelchairs and other medical devices that are prescribed to Miller by

medical staff will be stored and available to him in his cell. Any prescribed equipment

will not be removed from his cell unless Miller is found to be using the wheel chair or

other medical device for any purpose other than for which the medical aid is prescribed.

Any removed items will be made available to Miller as determined by medical staff to be

used as prescribed, consistent with the provisions of SOP VHOl-0002 [Medical

Autonomy].

•

Provide Miller with adequate supplies of catheters, leg bags and diapers,

as appropriate.

•

Provide a clean environment to use, clean, and dispose of devices in order

to minimize the risk of infection.

•

Provide appropriate receptacles for waste. Provide prompt, appropriate

disposal of waste, diapers, urine bags and bottles, and other waste

mate1ials.

•

Ensure that there is a regular documentation procedure where Miller signs

for and acknowledges each receipt of supplies and the amounts of supplies

received.

•

Miller agrees that he will sign for and acknowledge each receipt of

supplies and the amounts of supplies received.

3. Miller shall not be required to perform tasks that are beyond his ability to perform due to his disability, and assistance shall be provided to Miller to the extent that he needs assistance with activities of dai ly living. The determination of the extent to which Miller needs assistance shall be made by medical staff, consistent with the
provisions of SOP VHOl-0002 [Medical Autonomy].

C. Medical Treatment
l. GDC shall maintain a written medical Treatment Plan in his medical file, which shall be updated regularly according to applicable professional standards, and medical staff shall make good faith efforts to comply with the Treatment Plan. The currently operative treatment plan is attached hereto as Exhibit B.
2. Miller has been provided long leg braces as provided in the medical treatment plan. Such braces, however, shall not be deemed to replace his wheelchair
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Case 6:98-cv-00109-JEG Document 539-1 Filed 10/15/10 Page 5 of 29

unless Miller's treating physician detetmines that the wheelchair is no longer appropriately prescribed.

D. Other Issues

1. GDC and its officers and employees have not and will not retaliate against Miller because of any litigation or grievance Miller has filed or is about to file, or because of any litigation or grievance of another inmate as to which Miller has provided
assistance.

2.

Miller shall be permitted to provide assistance to other inmates consistent

with the provisions of SOP UA14-0001 , Sec. VI.G.2. [Access to Courts].

3. The parties acknowledge that it has been recommended that Miller complete the pre-parole programs Prime for Life, Motivation for Change, Family Violence, Health Education, and TOPSTEP. GDC agrees that Miller shall be provided the same or equivalent access to these and any other applicable pre-parole programs as would be provided a non-disabled inmate of his classification and disciplinary status, subject to removal in accordance with applkable program removal procedures contained in the governing Standard Operating Procedures of GDC. Miller agrees that he will make reasonable efforts to attend such programs whenever he qualifies for such programs and they are offered in a readily accessible manner.

4.

Miller will be provided the same or equivalent access to a law library and

legal materials, or reasonable access to legal research resources, as would be provided to

a non-disabled inmate of his classification and disciplinary status.

5. GDC and its officers shall not interfere with Miller's right of access to the courts and counsel consistent with the Standard Operating Procedures of GDC.

E. Financial Terms
l. Upon execution of this Agreement, payment in the amount of $50,000 shall be made to Miller, and a payment in the amount of $90,000 shall be made to his attorneys Bondurant Mixson & Elmore. Additionally, the GDC agrees to waive any debt in Miller's inmate account as of the date of execution of this Agreement. The Defendants also agree to pay the mediator's fee in this case.
2. Mutual Release. Miller, for and in consideration of the performance of the above financial terms, does hereby and for the heirs, executors, administrators, successors and assigns of Miller acquit, re mise, release and forever discharge the GDC, Brian Owens, James Donald, Johnny Sikes, Dr. Joseph Paris, Dr. Carolyn Mailloux, Victor Walker, Lisa Bozeman, Dennis Brown, Hugh Smith, Dr. Sharon Lewis, T.J. Conley, Don Jarriel, Dane Dasher, Dr. Tommy Jones, Tom King, and their agents, servants, employees, heirs, executors, administrators, successors, predecessors and

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Case 6:98-cv-00109-JEG Document 539-1 Filed 10/15/10 Page 6 of 29
assigns from ahy and all claims, fees, demands, tights, and causes of action brought, or that co uld have been brought, including claims for attorneys fees and costs of court, in Tracy Miller's Complaint and Amended Complaint filed in Miller v. Smith, et. a!., Civil Action File No. 6:98-CV- 109-JEG in the United States District CoUit for the Southern District of Georgia, Statesboro Division (the "Claims"), and all Complaints and Amended Complaints in Miller v. Owens, Civil Action File No. 1:05-cv- 153-DHB in the United States District Court for the Southern District of Georgia, Augusta Division, and any and all claims, demands, tights, and causes of action, that have accrued as of the date of this Agreement. It is further the intention of Miller that this Agreement shall be a full settlement, satisfaction, release and discharge of GDC, together with its officers, employees, and medical providers, from any and all claims, actions, causes of action and demands, including claims for attorney's fees, arising from any act or omission of any of the released parties at any time from the beginning of time until the date of this agreement.
GDC for and in consideration of this Agreement, does hereby acquit, remise, release and forever discharge Miller, together with his heirs, executors, and administrators, from any and all claims, demands, rights, and causes of action brought, or that could have been brought, in Civil Action File No. 6:98-CV-109-JEG in the United States District Court for the Southern District of Georgia, Statesboro Division (the "Claims").
IV. GENERAL PROVISIONS
A. This Agreement is enforceable only by the parties and is binding upon the pruties, by and through their officials, agents, employees, assigns, and successors. No person or entity, other than the parties named herein, is intended to be a third party beneficiary of the provisions of this Agreement for purposes of any civil, criminal, or administrative action, and accordingly, no person or entity may assert any claim or right as a beneficiary or protected class under this Agreement in any civil, criminal, or administrative action . This Agreement does not authorize, nor shall it be construed to authorize, access to State of Georgia or GDC documents by persons or entities not a party to this Agreement except as allowed by applicable law.
B. Nothing in this Agreement shall be construed as an acknowledgement, an admission , or evidence of liability of GDC under 42 U.S.C. § 1983, Title II of the Americans with Disabilities Act, Section 504 of the Rehabilitation Act, the United States Constitution, or any other federal or state Jaw, and this Agreement may not be used as evidence of liability in this or any other civil or criminal proceeding.
C. Failure by any party to enforce this entire Agreement or any provision thereof with respect to any provision herein shall not be construed as a waiver of its right to enforce other provisions of this Agreement
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Case 6:98-cv-00109-JEG Document 539-1 Filed 10/15/10 Page 7 of 29
D. In the event any provision of the Agreement is declared in valid for any reason by a court of competent jurisdiction, said finding shall not affect the remaining provisions of this Agreement.
E. This Agreement shall constitute the entire integrated agreement of the parties. All agreements and understandings between the parties are embodied and expressed herein.
F. Except as provided above in Section III.E, each party shall bear its own, attorney's fees, costs, and expenses incun·ed in connection with this case.
G. Nothing in this agreement should be construed as to give a right to Miller to enforce, or to create any claim or have any cause of action for a violation of any Standard Operating Procedure of GDC, except as otherwise provided by law.
H. Plaintiff Miller declares that he is eighteen years of age or older, of sound mind, and laboring under no mental disability, and that he has been advised by counsel as to the consequences of this Agreement, and he consents to its terms as provided herein.

Executed this lQ_ day of A~ , 2010.
TRACY . M LER

Sworn to and subscribed before me this

\4~ay of fw.(:l·*

'2010.

~-··-, ~ ~ ...~- ~ ,..... ..

(Affi..J:.U.~--~--=-...:...=:..._:___ __

; . ...··
:~ :· ··
. ~ - :
# •••

. i-.Iotaty
My Ca:minission Expires:_ _ _ _ __
... :.
6USAN M. JONES
NOTARY PUBUC RfCHMOND COUNTY STATE OF GEORGIA ~Commission Exf)ires FebruaJX ~7th 2012

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Case 6:98-cv-00109-JEG Document 539-1 Filed 10/15/10 Page 8 of 29
Executed this fltf"day of fh,., u.sr , 2010.
I
as {Hvq_f ~~
For the Georgia Department of CotTections

SwW to and suRscribed before me this
~day of fluJ u.s T CW , 2010.

.. '
Notary "MY E:ommission Expires:

HrNymoGmtearJySPa·u•bJo-icn, CExopbibrgCi oJuannhu.,,a, rGye2o,r2g0•.a~3

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Case 6:98-cv-00109-JEG Document 539-1 Filed 10/15/10 Page 9 of 29
Exhibit A
Augusta State Medical Prison Unit 18 HousingCells: lBl, 1B2, IB3, 184,187, IB8.1B9.1810.1B1L 1812, 11313. i!314. IBIS, 1Bl6, 1817,11318, IB19, IB20 Unit 2A Medical Cells: 2A7, 2A8 Unit 31\ Medical Cells: 3A7, 3A8 Unit 6A Isolation Cell: 6A4 Georgia State Prison Medical Unit Cell Numbers 2, 3, 4, 5, 6, 7, 8. 9, 10, 11 Georgia Dia2.nostic and Classification Prison Medical Unit Cell 15 Special Management Unit Cells: AWl, All 6, BIOI, Bll6, ClOl, C1l6, 0101, 0116. E!O!. FlOl, Fll6

Case 6:98-cv-00109-JEG Document 539-1 Filed 10/15/10 Page 10 of 29

r EXHIBI'T B

GEORGIA DEPARTMENT OF CORRECTIONS
A.UGUSTA.ST.A.I"EMEDlCALPRISON. 3(}01 i;{JRDONIIIGHWA.Y
GROVETOWN. GEORGIA. JtMIJ
7~55-+700

Soany Padu.e Govurwr

FROM:

Dr. BillyNichols
ASMP Medical Director

DATE:

.M..e:rch 10.2009

SUBJECl! Tredment 'P~ Tracy Miller #191378

f1310912009 l.
2. 3.
4.

50-y/o blackmale with the following medical problems and treatment pian;
• Paraplegia sccondalyto gunshot wound to spine sustained inNovember 198S
with right Iowa e::W:emity wealrer iba:n left leg lower c:xtremity.
• Ambulates in~chair.
• Pe.rfomla ADL's. • Transfexs from bed to chair to toilet seaL • He is measured foe and is awaiting lowec extremity braces (right KAFO & left
AFO) .

• Hypertension; on treatment wi1h Cozaar 50 mg. HCIZ 25.m
• Pati.cnt.o&n ll01l'-C0111Pliant with Ca1an SR 240 m.ginthe morning. 120 mg in
the evening. -
• Medicines and blood Pr<:ssuxe c.beclcs..
• Refused 15 offerings ofthese medications {3/0IJ09..3/t0/09).
• Nc:urogooic bladder. In aDd out sclf~on 4-5 times per day.
Hist.ory oflkmaturia. !!. Status post Urology consult. . • Status post renal ultmsound - showed left J:en8l cyst andi.cr:egular bladdCi"
wan.
cr: • Status post renal protocol bladder wall thickening; 2:5 an left renal cyst_
• ·Patientrefused to go 1o Urology consult on 1127/09-andconsult bad to be rescbednted.
• Cystoscopy is pending fur worlc-up ofbl.adderprobl.cm.. • Repeater reoa16 months for follow up renal cystis :pending. (7/09)

• Left Shoulder'pain with degenerative changes ofacromio-clavicularjoint

•
. - .•

Seen by motion.

Orthopedics.

recomm'~-ended

Physiq3l

Thernpy

Patient will follow'up Orthopedics in 6 months.

for

range

o

f range
.

of

..,..

~\--

Case 6:98-cv-00109-JEG Document 539-1 Filed 10/15/10 Page 11 of 29
Multidisciplinary Treatme:1t Plan for Tracy Miller
Robert 1?- Greifinger, MD -.
DraftApril3, 2009 L Accessible space, according to USDOJ recommendations, and accessible yard time and
programs; 2. Appropriate durable medical equipment, including wheelchair, custar:' braces, and crutches (as
necessary); 3. Wheelchair evaluation within 30 days, induding evaluation for cushion; 4. Sufficient supplies, as necessary, including condom catheters and diapers and chux; 5. Avoid straight catheters where medically inappropriate; 6. Physical therapy and instruction for transfers, braces, and left shoulder; 7. Left shoulder: orthopedic follow-up within six months, and thereafter as necessary; 8. Hypertension: re~valuate medication; provide medication and chronic care according to GDOC
· clinical guidelines; 9. Neuroge nic bladder: patient education; follow-up with CT scan and cystoscopy within three
months; 10. Renal cyst: ultrasound follbw-up within six CT)Onths; 11. Rectal ulcer: gastroenterology follow-up; patient education;-stool softeners as needed; 12. Pain management: evaluation for TENS unit by primary physician; 13. Old granulom~tous disease oh:hest reassure patient; 14. Encourage independent living for transfer to an accessible, non-nursing unit. as soon as feasible.
Patient will be expected to perform activitieswithin his limitations and will not be punished for his inability to perform outside his physical limitations; 15. "Soft shoe profile"' ordered, to allow for medically and/or1egally required visits outside GDOC facilities; 16. Wheelchair van for transportation; 17. Wound care, as necessary; 18. Sensitive counseling to address patient~s medical and accommodation concerns, es pecially when patient refuses eare; 19. Special needs are listed on the ma~r problem list; 20. Medical e\talu~tion and adjustment oftrea~ment modalities (diet, exercise, adaptation to the physical environment, diagnostic testing_ and medication) will occur every three f!10nti\S, or sooner when medically necessary; and 21. No unreasonable security barriers to acc.essibility.
\ \ N.\~

Case 6:98-cv-00109-JEG Document 539-1 Filed 10/15/10 Page 12 of 29
EXHIBITB

Case 6:98-cv-00109-JEG Document 539-1 Filed 10/15/10 Page 13 of 2P9age 1 of 1

Michelle Hirsch

From: Michelle Hirsch

Sent: Thursday, August 19, 2010 4:58PM

To:

'robbi_atkins@gas .uscourts.gov'

Cc:

'Sarah M. Shalf; Susan Teaster; John H. Rains IV; Devon Orland

Subject: Miller v. Smith, 98-109

Rabbi,
The parties would like to report that we have settled this case. The settlement agreement has been executed by Plaintiff and will be executed by GDC. The checks have been ordered, but not been received yet.
We will be unable to file the stipulation of dismissal until the checks clear, and so we would like to request that the Court stay the proceeding to allow for that to happen.
Thank you, Michelle Hirsch

Michelle }. Hirsch Assistant Attorney General Georgia Department of l.'lw 40 Capitol Square, S.W. Atlanta, GA 30334 Telephone: (404) 463-8850 Facsimile: (404) 651-5304 mhirsch@law .ga.gov
This message is intended exclusively for the individual or entity to which it is addressed. This communication may contain information that is proprietary, privileged or confidential or otherwise legally exempt from disclosure. If you are not the named addressee, you are not authorized to read, print, retain, copy or disseminate this message or any part of it. If you have received this message in error, please notify the sender immediately byemail and delete all copies of the message.

10/5/201 0

Case 6:98-cv-00109-JEG Document 539-1 Filed 10/15/10 Page 14 of 29
EXHIBIT C

Case 6:98-cv-00109-JEG Document 539-1 Filed 10/15/10 Page 15 of 2P9age 1 of 1

Michelle Hirsch

From:

Michelle Hirsch

Sent:

Wednesday, August 18, 2010 10:41 AM

To:

'Sarah M. Shalf; John H. Rains IV

Cc:

Susan Teaster

Subject:

Stipulation of dismissal in Miller v. Owens, 05-153

Attachments: ATTORNEY_GENERAL-#595188-v1-MILLER-Stipulation_of_Dismissai.DOC

Sarah and John,
I forgot to send this to you in my last email. It is the stipulation of dismissal in Miller v. Owens, 05-153 in which Mr. Miller is proceeding pro se that I ask that he execute when you meet with him.
Thanks,
Michelle
Michelle J. Hirsch
Assistant Attorney General Georgia Department of Law 40 Capitol Square, S.W. Atlanta, GA 30334 Telephone: (404) 463-8850 Facsimile: (404) 651-5304 ~
This message is intended exclusively for the individual or entity to which it is addressed. This communication may contain information that is proprietary, privileged or confidential or otherwise legally exempt from disclosure. If you are not the named addressee, you are not authorized to read, print, retain, copy or disseminate this message or any part of it. If you have received this message in error, please notify the sender immediately byemail and delete all copies of the message.

10/5/2010

Case 6:98-cv-00109-JEG Document 539-1 Filed 10/15/10 Page 16 of 29

IN THE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF GEORGIA STATESBORO DIVISION

TRACY ANTHONY MILLER, Plaintiff,
vs.
BRIAN OWENS, et. al., Defendants.

) ) ) ) CIVIL ACTION NO. ) ) 1:05-CV- 153-DHB ) ) )

STIPULATION OF DISMISSAL WITH PREJUDICE COMES NOW Plaintiff, with the express consent and permission ofthe Defendants in the referenced litigation, and hereby stipulates that the above-styled action be dismissed with prejudice, pursuant to FED. R. CIV. P. 41(a)(l), with the Parties to bear their own costs. Respectfully submitted, this _ _ _ day of_ _ __ _ _, 2010.

Tracy A. Miller, prose Plaintiff GDC # 191378 Augusta State Medical Prison 3001 Gordon Highway Grovetown, GA 30813

Case 6:98-cv-00109-JEG Document 539-1 Filed 10/15/10 Page 17 of 29
Consented to by: Attorney for Defendants /s/ Devon Orland Devon Orland Georgia Bar No. 554301 Senior Assistant Attorney General Department ofLaw, State of Georgia 40 Capitol Square, S.W. Atlanta, Georgia 30334-1300 Telephone: (404) 463-8850 Facsimile: (404) 651 -5304 E-mail: dorland@law.ga.gov
2

Case 6:98-cv-00109-JEG Document 539-1 Filed 10/15/10 Page 18 of 29
EXHIBITD

Case 6:98-cv-00109-JEG Document 539-1 Filed 10/15/10 Page 19 of 2P9age 1 of 1

Michelle Hirsch

From: Sarah M. Shalf (shalf@bmelaw.com]

Sent: Tuesday, September 14, 2010 6:16PM

To:

Michelle Hirsch

Cc:

Devon Orland; Susan Teaster

Subject: Re: Miller trust account

Ok, look forward to receiving it.
I expect it would be a dismissal like Mr. Miller has previously signed, unless the Court for some reason thinks it should be different (but I haven't asked for anything different and don't plan to).
Sarah Shalf Shalf@bmelaw.com

Sent from my iPhone
On Sep 14,2010, at 5:33PM, "Michelle Hirsch" <mhirsch@la~v> wrote:
Sarah,
I am waiting only for the response from the Middle District of Georgia and Tattnall County. Then, I should have the totals.
On another note, I was a little confused by the Court's suggestion that the parties present a "dismissal judgment" Please note that Defendants do not agree to the entry of a judgment We expect that a dismissal with prejudice under Rule 41 (a)(1 )(A)(ii) will be entered, in substantially the same form and substance as the stipulation of dismissal signed by Plaintiff in 05-153, Miller v. Owen , which has yet to be filed by Plaintiff. Please let me know if you disagree.
Thanks,

Michelle J. Hirsch
Assistant Attorney General Georgia Department of Law 40 Capitol Square, S.W. Atlanta, GA 30334 Telephone: (404) 463-8850 Facsimile: (404) 651-5304 mhirsch@law.ga.gov
This message is intended exclusively for the individual or entity to which it is addressed. This communication may contain information that is proprietary, privileged or confidential or otherwise legally exempt from disclosure. If you are not the named addressee, you are not authorized to read, print, retain, copy or disseminate this message or any part of it. If you have received this message in error, please notify the sender immediately by e-mail and delete all copies of the message.

10/4/2010

Case 6:98-cv-00109-JEG Document 539-1 Filed 10/15/10 Page 20 of 29
EXHIBIT E

Case 6:98-cv-00109-JEG Document 539-1 Filed 10/15/10 Page 21 of 29

nomas .K. Kahn
Clerk

United

States Court of
· Eleventh Circuit

Appeals

56 Forsyth Street, N. W.

Atlanta., Georgia 30303

Warden Georgia State Prison 100 Georgia Hwy. 147 Reidsville GA 30499-9701

September 09, 1999

DRCE:D9K9-T12N2105.:-9B9-0008T3ra6c-Cy VM-iBllAerBv. Jim Wetherington

In Replying Give Number Of Case And Names ofParties

SboePenufulcctrohlhswoeucsa.rhenedeqtcituksoisrateshCdheaO$Pl1Nlr0ibSs5eoE.0mnN0LaTdaitpeFipgOpeaalRtyliaoMatnbeleRfexielaeifnncoudgrmtsfeeedAenbtcfytrtoooa:mfp1rhi9iss9o5onre(rthhieenrAypocritus)ro, jn2n8asctUict.uoStu.inoCtn.tw§o1ht9hic1eh5da(isautstrhiacomtricezoneudsreptdan)y,ammeendt

SD1Ca2ilves5trarBkni,cnuUtalloh.SS,ft.SGrDeoAeuitst,ht3rRe1irco4nt0oC1Gmoe3uo0rrt6gia

Pursuant to now pay to amounts:

the the

Act, and specified

consistent with district court a

ftihrsetpprai syomneenr 'tsasmi gonuendtiCngOtNoStEh eNgTr eFaOt eRr Mo fyt hoeufsohlolouwl ding

C(im1O)mN2eS0dEi%aNteoTlfyFthpOreeRacMveed)ri;anoggretmheodnathtelythdeenpoostiictse

tooftahpepperailswonaesr'fsl.laecdc(oausnitnfdoircathteedsoixn

month period the enclosed

$atpYoc1aoc0ytouh(.m02ues0)enhsntupo2taneu0snctlh%iddilofaiwtuoehllisdfedlotldfbhhbuieeseeltlraerdefivqiceaueltdfiratncuaelgocgrtutoemferemd2taeu0kfohrn%enaottsaimhlodbltfdyaehaileebtllinlabmolopanaolfaanantlicnhidmeec.eseojpnonortatefhhdctleheeydepopiro$naiss1gyio0mtmn5ieeno.0nrnt'0tsthshieafs'crsppocrdaomiesiudopnt.hnoteseBfirotpa'srsrcittahsohcoaatcndhtoedseuriipn'xtsirtomiainsncooacnenloxtmeuhcrnoe'pstnsestrhioolfycl

If you Thank

hyaovuefaonr yyoquuersctoiooiplsercaotinocne.rning

these

p r o c ed ures,

please

feel

free

to

write

or

call

this

office.

c: District Court Clerk Encl.

Sincerely, THOMAS K. KAHN, Clerk Reply To: Dwight Briggs (404) 335-6181
PRIS-10 (2-1999)

Case 6:98-cv-00109-JEG Document 539-1 Filed 10/15/10 Page 22 of 29
DEBBIE CREWS CLERK OF SUPERIOR, STATE & JUVENILE COURTS
TATTNALL COUNTY GEORGIA P.O. BOX 39
REIDSVILLE, GA. 30453 (912)557-6716
TO: GEORGIA STATE PRISON INMATE ACCOUNT DEPARTMENT 300 151 AVE. REIDSVILLE, GA. 30453
INMATE : Tracy Miller
ID NO: GDC#19:1 378
CCIBANNOEATESDAHNEEPENPFSAILOELMIC.ECOITDASIUTOI2NNIN0OT0TN44HO2-~FENF1O2HS$-R--U964A.P0NP.E0LR0IENIOAMARSASECTAEOFURUFTEROHETROZMOREIFFZTOTEHADIRSTBCTINYINVMTAILAHLATLECECG'TSOEIOUAONNCRTCGHYOAI.AUSTNHTE
THANK YOU IN ADVANCE,
~clf;d- h{ - ~~
BRIDGET M. BEECHER DEPUTY CLERK TATTNALL COUNTY

Case 6:98-cv-00109-JEG Document 539-1 Filed 10/15/10 Page 23 of 29
EXHIBITF

Case 6:98-cv-00109-JEG Document 539-1 Filed 10/15/10 Page 24 of 29

SUPPLEMENT TO SETTLEMENT AGREEMENT
I. INTRODUCTION
A. This is a Supplement ("Supplement") to the Settlement Agreement ("Agreement") entered into by: (1) PlaintiffTracy Anthony Miller; and (2) the Georgia Department of Corrections ("GDC"), including its officers, employees, and member facilities, Augusta State Medical Prison ("ASMP") and Georgia State Prison ("GSP") in reference to the matter of Miller v. Smith, 6:98-cv-1 08-JEG.
B. This Supplement is entered into by clear agreement of the parties, after thorough negotiations.
C. The parties agree that the proVIsions of this Supplement are lawful, fair, adequate, and reasonable.

II. SUBSTANTIVE PROVISION

A. Financial Terms

1.

Miller acknowledges receipt of payment to him in the amount of$50,000, and

acknowledges receipt of payment to his attorneys Bondurant Mixson & Elmore in the amount of

$90,000.

2.

The GDC has waived debt owed to it by Miller in the amount of $3,690.26. This

amount reflects all debt owed to GDC as reflected in Miller's inmate account as of the date of

execution of the Agreement.

3.

In further consideration ofthe Agreement, within 10 days from the date of the

execution of this Supplement, GDC will pay to the following courts the following court fees

incurred in the following cases:

In the District Court for the Southern District of Georgia:

CV6:98-109

$150.00

CV1:99-55

$150.00

CV6:97-001

$ 63.40

CV6:97-144

$130.00

CV6:97- 154

$244.60

CV6:98-57

$150.00

CV1:98-97

$150.00

Case 6:98-cv-00109-JEG Document 539-1 Filed 10/15/10 Page 25 of 29 Executed this ___ day of_ _ __ _ _, 2010.

Robert E. Jones, as General County for the Georgia Department of Corrections

Sworn to and subscribed before me this

_ _ day of

, 2010.

Notary My Commissioner Expires: _ _ _ __ _ __ _

3

Case 6:98-cv-00109-JEG Document 539-1 Filed 10/15/10 Page 26 of 29
EXHIBITG

Case 6:98-cv-00109-JEG Document 539-1 Filed 10/15/10 Page 27 of 2P9age I of 1

Michelle Hirsch

From:

Sarah M. Shalf [shalf@bmelaw.com]

Sent:

Friday, October01, 2010 11:50AM

To:

Devon Orland

Cc:

Michelle Hirsch; Susan Teaster

Subject:

RE: Miller supplemental agreement

Attachments: Miller Consent Dismissal With Prejudice.DOCc

This looks fine, except the language requiring Mr. Miller to dismiss within 2 days could potentially be problematic. Mr. Miller cannot unilaterally dismiss the 6:98-cv-109 case. However, if the Defendants will go ahead and consent to the attached dismissal order then I will be able to file this to dismiss the 6:98-109 case within 2 days of receiving copies of the letters reflecting payment of the court fees (and Michelle can file the dismissal order for the other case, which she already has in her possession).
Sarah Bundumut ~Ii.xsou & Elmore, 1J .P
shalf@bmelaw.com 1(404) 881-4158
From: Devon Orland [mailto:dorland@law.ga.gov]
Sent: Thursday, September 30, 2010 9:20AM
To: Sarah M. Shalf Cc: Michelle Hirsch; Susan Teaster Subject: FW: Miller supplemental agreement
DOC has given its ok to proceed with the supplemental agreement as written.

10/14/2010

Case 6:98-cv-00109-JEG Document 539-1 Filed 10/15/10 Page 28 of 29

IN THE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF GEORGIA STATESBORO DIVISION

TRACY ANTHONY MILLER,

)

)

Plaintiff,

)

) CIVIL ACTION NO.

vs.

)

) 6:98-CV- 109-JEG

GEORGIA DEPARTMENT OF, )

CORRECTIONS, et al.,

)

)

Defendants.

)

CONSENT DISMISSAL WITH PREJUDICE Pursuant to the Court's order of September 14,2010, and in consideration of the Parties' Settlement Agreement, the terms ofwhich are incorporated herein, the Court orders this case dismissed with prejudice, pursuant to FED. R. Crv. P. 41(a)(2), with the Parties to bear their own costs.

So ordered, this _ __ day of_ _ __ _ _, 2010.

805856.1

James E. Graham United States Magistrate Judge

Case 6:98-cv-00109-JEG Document 539-1 Filed 10/15/10 Page 29 of 29

Consented to:

/s/ Sarah M. Shalf

Jeffrey 0. Bramlett

Georgia Bar No. 075780

Email: bramlett@bmelaw.com

Sarah M. Shalf

Georgia Bar No. 637537

Email: shalf@bmelaw.com

Robert L. Ashe

Georgia Bar No. 208077

Email: ashe@bmelaw.com

John H. Rains IV

Georgia Bar No. 556052

Email: rains@bmelaw.com

BONDURANT, MIXSON & ELMORE, LLP

3900 One Atlantic Center

1201 West Peachtree Street, N.W.

Atlanta, Georgia 303 09

Telephone: (404) 881-4100

ATTORNEYS FOR PLAINTIFF

/s/ Michelle J. Hirsch Michelle J. Hirsch Assistant Attorney General Georgia Bar No. 357198 Email: mhirsch@law.ga.gov Susan e. Teaster Assistant Attorney General Georgia Bar No. 701415 Department of Law 40 Capitol Square, N.W. Atlanta, Georgia 30334 Telephone: (404) 463-8850

ATTORNEYS FOR DEFENDANTS

805856.1
2

 
 Case 6:98-cv-00109-JEG Document 544 Filed 11/02/10 Page 1 of 4 FILED
U.S. flTPflT CDU1

Email: rains@bmelaw.com BONDURANT, MIXSON & ELMORE, LLP

20 10 NOV -2 AK U

3900 One Atlantic Center 1201 West Peachtree Street, N.W.

CLERK,

.ckQ4-

SO 1ST. OF GA.

Atlanta, Georgia 30309

Telephone: (404) 881-4100

ATTORNEYS FOR PLAINTIFF

Is! Michelle J. Hirsch Michelle J. Hirsch Assistant Attorney General Georgia Bar No. 036299 Email: rnhirschiaw.ga.gov Department of Law 40 Capitol Square, N.W. Atlanta, Georgia 30334 Telephone: (404) 463-8850

ATTORNEY FOR DEFENDANTS

APPROVED, this

day of November, 2010.

d.f

-

ES E. GRAHAM

TED STATES MAGISTRATE JUDGE

2

Case 6:98-cv-00109-JEG Document 544 Filed 11/02/10 Page 2 of 4

IN THE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF GEORGIA STATESBORO DIVISION

TRACY ANTHONY MILLER,

Plaintiff, vs. HUGH SMITH, et. al.,

CIVIL ACTION NO.
CV698-109-JEG

Defendants.

STIPULATION OF DISMISSAL WITH PREJUDICE COMES NOW the Plaintiff, with the express consent and permission of the Defendants in the referenced litigation and hereby stipulates that the above-styled action be dismissed with prejudice, pursuant to FED. R. Civ. P. 41(a)(1), with the Parties to bear their own costs. Respectfully submitted, this 1st day of November, 2010.

Is/ Sarah M. Shalf Jeffrey O. Bramlett Georgia Bar No. 075780 Email: bramlett@bmelaw.com Sarah M. Shalf Georgia Bar No. 637537 Email: shalf@bmelaw.com Robert L. Ashe Georgia Bar No.208077 Email: ashe@bmelaw.com John H. Rains IV Georgia Bar No. 556052

Case 6:98-cv-00109-JEG Document 544 Filed 11/02/10 Page 3 of 4 Case 6:98-cv-00109-JEG Document 543 Filed 11101/10 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF GEORGIA STATESBORO DIVISION

TRACY ANTHONY MILLER,

Plaintiff, vs. HUGH SMITH, et. al.,

CIVIL ACTION NO, CV698- I 09-JEG

Defendants.

STIPULATION OF DISMISSAL WITH PREJUDICE COMES NOW the Plaintiff, with the express consent and permission of the Defendants in the referenced litigation and hereby stipulates that the above-styled action be dismissed with prejudice, pursuant to FED. R. Civ. P. 41(a)(1), with the Parties to bear their own costs. Respectfully submitted, this 1st day of November, 2010.

/.s/ Sarah M. Shalt' Jeffrey 0. Bramlett Georgia Bar No. 075780 Email: bramlett@brnelaw.com Sarah M. Shaif Georgia Bar No. 637537 Email: shalf@bmelaw.com Robert L. Ashe Georgia Bar No.208077 Email: ashebmelaw.com John H. Rains IV Georgia Bar No. 556052

Case 6:98-cv-00109-JEG Document 544 Filed 11/02/10 Page 4 of 4 Case 6:98-cv-00109-JEG Document 537 Filed 09/14/10 Page 1 of 1

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF GEORGIA
STATESORO DIVISION

FILED US. .flSTCt COU
, DV.

:RACY ANTHONY MILLER Plaintiff,
V. HUGH SMI'R, er., al.,
Defendants.

CIVIL ACTION NO. CV698-109

2010 SEP 14 PM 4:11
CLERK__SO, MT. IF W

The Court has been advised by counsel for the parties that

the above-captioned case has been settled.

Accordingly, the Court directs the Clerk to ADMINISTRATIVELY

CLOSE this action. See Heape v_1aMgan, CV607-12, 2008 WL

239736 (S.D. Ga. June 9, 2008). Within sixty days of the date this order is entered, the

parties may present a dismissal judgment, pursuant to Federal

Rule of Civil Procedure 41',a)(2), incoroorating the terms of the

parties' settlement., so the Court may retain jurisdiction to

enforce the aereement. If the parties fail to file a dismissal

.udgment as described above, the Court will dismiss the case with

p rejudice. Kokknen v. Guardian Lifp Ins. Co. pf Am., 51: U.S.

375, 381-. 82 1994)

/L71

SO ORDERED, this

"day of -.

September

2010

E. GRAHAM STATES MAGISTRATE JUDGE

 
 KeyCite Red Flag - Severe Negative Treatment Opinion Vacated and Superseded by Miller v. King, 11th Cir.(Ga.), May 17, 2006
384 F.3d 1248 United States Court of Appeals,
Eleventh Circuit.
Tracy MILLER, Plaintiff–Appellant, United States of America, Intervenor,
v. Ronald KING, Defendant–Appellee, Wayne Garner, The State of Georgia, The Georgia Department of Corrections, Johnny Sikes,
Defendants.
No. 02–13348. |
Sept. 14, 2004.
Synopsis Background: Paraplegic state prisoner brought § 1983 action against state, state corrections department, and corrections officials alleging various claims including Eighth Amendment claims and disability discrimination claims under Title II of the Americans with Disabilities Act (ADA). The United States District Court for the Southern District of Georgia, No. 98-00109-CV-6, James E. Graham, United States Magistrate Judge, granted summary judgment on majority of claims, and, following jury trial, entered judgment for disciplinary hearing officer on remaining claims. Prisoner appealed.
Holdings: The Court of Appeals, Hull, Circuit Judge, held that:
fact issues precluded summary judgment for prison warden on prisoner’s § 1983 claims for monetary damages and injunctive relief under the Eighth Amendment;
Eleventh Amendment did not bar ADA claim for injunctive relief against warden in his official capacity;
ADA did not validly abrogate states’ immunity as to claims for monetary damages based on alleged Title II violations in state prisons; and
individuals are not subject to personal liability for violations of Title II provision prohibiting discrimination by public entity in administration of services, programs,

or activities.
Affirmed in part, reversed in part, and remanded.
Procedural Posture(s): On Appeal; Motion for Summary Judgment.
West Codenotes
Unconstitutional as Applied 42 U.S.C.A. § 12202
Attorneys and Law Firms
*1253 Gordon L. Hamrick, IV (Court–Appointed), Bondurant, Mixson & Elmore, LLP, Atlanta, GA, for Miller.
David Victor Weber, Martinez, GA, David E. Lansford, Atlanta, GA, for King.
Sarah E. Harrington, Kevin Russell, U.S. Dept. of Justice, Washington, DC, for Intervenor.
Appeal from the United States District Court for the Southern District of Georgia.
Before CARNES, HULL and HILL, Circuit Judges.
Opinion
HULL, Circuit Judge:
Plaintiff Tracy Miller (“Miller”), a paraplegic state prisoner, appeals the grant of summary judgment on his Eighth–Amendment claims brought under 42 U.S.C. § 1983 and his disability-discrimination claims brought under Title II of the Americans with Disabilities Act, 42 U.S.C. §§ 12131–12165 (“ADA”).
After review and oral argument, we reverse as to Miller’s: (1) Eighth–Amendment claims under § 1983 for monetary damages against defendant Sikes in his individual capacity; (2) Eighth–Amendment claims under
§ 1983 for injunctive relief against defendant Sikes in his official capacity; and (3) ADA claims for injunctive relief against defendant Sikes in his official capacity. We affirm as to Miller’s ADA claims for monetary damages as to *1254 all defendants and as to all other claims against all defendants.

I. BACKGROUND
Miller is a paraplegic, wheelchair-bound inmate at Georgia State Prison (“GSP”) in Reidsville, Georgia. Miller suffers from complete paralysis in his right leg, partial paralysis in his left leg, and a neurogenic bladder condition that causes urinary incontinence. At GSP, Miller is housed in disciplinary isolation in the “K–Building,” which is designated a “high maximum” security section of the prison. As a result of more than 180 disciplinary reports, Miller has been held in isolation in the K–Building since at least 1998, and is due to remain in isolation for a total of more than eight years. Able-bodied inmates in disciplinary isolation are housed in less stringent units than the “high maximum” security K–Building. Because K–Building cells are so small and not accommodated for the wheelchair-bound, prison policy calls for beds to be removed daily so that the wheelchair-bound inmates have some minimal area within which to move around their cells.1
A. Complaint
Miller originally filed this action under 42 U.S.C. § 1983 against Ronald King, the Hearing Officer for the Office of Inmate Discipline at GSP, and Wayne Garner, Commissioner of the Georgia Department of Corrections (“GDOC”), in their official and individual capacities. The original complaint alleged that the defendants had deprived Miller of various due-process rights under the Fourteenth Amendment, including the right to present witnesses in his disciplinary hearings. Miller also alleged that the defendants had placed him in isolation because he is disabled and in retaliation for his filing suits.
Miller subsequently amended his complaint to add as defendants the State of Georgia, the GDOC, and GSP Warden Johnny Sikes, in his official and individual capacities. Miller also added disability-discrimination claims under Title II of the ADA, retaliation claims under the First Amendment, and cruel-and-unusual-punishment claims under the Eighth Amendment. Miller’s complaint (as amended, the “Complaint”) sought monetary and injunctive relief.
Regarding his Eighth–Amendment and ADA claims, Miller’s Complaint essentially makes the following claims against the defendants: (1) that there is no room in his small cell for him to maneuver his wheelchair, making

him immobile and restrained for extended periods of time and that this problem is exacerbated by GSP staff’s failure to remove his bed from his cell daily, as prison policy requires for wheelchair-bound inmates; (2) that the showers and toilets in the K–Building are not wheelchair-accessible, that he has been denied the opportunity to bathe regularly and to obtain basic hygiene, and that GSP staff have not provided him necessary urine catheters or assistance in using portable toilets, resulting in Miller’s urination and defecation on himself; and (3) that GSP officials and staff have ignored his medical complaints, failed to provide him with rudimentary medical devices required for his paraplegic condition, including leg braces, orthopedic shoes, a wheelchair-accessible van, and wheelchair repairs, and failed to provide him with required medical care, *1255 including physical therapy, occupational therapy, and medical evaluation for his spinal condition, resulting in bed sores, serious atrophy, and deterioration of his spinal condition. As additional ADA claims, Miller asserts that he has been denied basic privileges provided to able-bodied inmates in isolation, including removal from isolation for one day after each thirty-day isolation period, and participation in “yard call” and “gym call” during each such removal day.2
Miller alleges that GSP officials and staff, including Warden Sikes personally, were aware of his paraplegic condition, the inhumane conditions of his confinement and his serious medical needs, and were deliberately indifferent to those conditions and needs. On these bases, Miller seeks monetary damages and injunctive relief
under § 1983 and Title II of the ADA.
B. Preliminary Injunction Hearing Miller filed numerous motions for emergency preliminary injunctions. The magistrate judge conducted a hearing at which Miller, several inmates, and prison officials testified. We review that evidence because Miller relies on it in this appeal.
During the hearing, Clarence Downs, a GSP prisoner housed in the K–Building with Miller, testified that he had observed correctional officers using excessive force against Miller, that officers at times shut off the water to Miller’s cell for days at a time, that Miller’s cell was not large enough to maneuver a wheelchair, and that prison staff did not remove beds from cells during the day to make the cells wheelchair-accessible. The magistrate judge admitted into evidence a letter from J. Philip Ferraro, GDOC Assistant Director of Legal Services, a copy of which was provided to Warden Sikes, stating that

“the beds for disabled prisoners in restricted quarters are removed during the day to ensure they have enough room to maneuver their wheelchairs in their cells.” During the hearing, Miller emphasized that his bed was not removed from his cell daily as required by GDOC policies.
Dr. Carolyn Mailloux, the GSP medical director, testified that Miller was able to stand on his own and maneuver for short periods of time, and that while Miller would not necessarily require a “wheelchair with legs,” it would be beneficial to him. Although Dr. Mailloux requested various medical consultations and treatments for Miller, Miller never received the prescribed consultations or treatments because each time either Miller refused or GSP Utilization Management did not approve the visits. Dr. Mailloux acknowledged that Miller had experienced some muscle atrophy. However, Dr. Mailloux testified that medical staff examined Miller shortly before or after he was placed in disciplinary isolation, that Miller’s cell was wheelchair-accessible, that she was not aware that the prison staff had ever refused Miller medical treatment, and that Miller’s life was not in imminent danger due to lack of medical treatment at the prison. She further testified that Miller had not received physical therapy because he refused to go to a prerequisite consultation, and that Miller could travel in a regular van without any special accommodations.
While able-bodied inmates in isolation are housed elsewhere, Warden Sikes testified that Miller was housed in the K–Building because of its wheelchair accessibility to the shower and the yard. Sikes testified that Miller was moved to the K–Building from the infirmary because he proved a continual distraction to both staff and inmates in the infirmary, and that the K–Building’s accommodations were reasonable *1256 under those circumstances. According to Warden Sikes, there was no other place where other isolation inmates were housed that would be wheelchair-accessible for Miller. With regard to Miller’s isolation time, Warden Sikes acknowledged that Miller on one occasion had not been removed after thirty days of isolation, but testified that the failure to remove Miller was due to an oversight on that single occasion.
Reginald Ford, a correctional officer at GSP, testified that on one occasion he responded to Miller’s complaint of a back injury, but the medical staff did not respond immediately. GSP staff physician Dr. Thomas Lowry testified that he had on one occasion attempted to treat Miller for back pain, but Miller refused. Dr. Lowry testified that Miller met the criteria for an assisted-living facility at Augusta State Medical Prison, but that, to his knowledge, Miller had received reasonable medical care at GSP.
Next, Visol Smith, a correctional unit manager at GSP,

testified that the medical staff had evaluated Miller after he complained about his back injury. According to Smith, prison staff cleaned Miller’s cell and brought food trays to his bed, and because the staff was able to accommodate Miller’s disability, the K–Building was appropriate housing for Miller. Smith did testify, however, that the bed was not removed from Miller’s cell on a daily basis to allow Miller more room for his wheelchair, although there were plans to begin doing so.
Finally, defendant King, the GSP hearing officer, testified that most inmates are restored privileges and returned to the dorms when they are taken out of isolation status. Miller, on the other hand, continued to live in the K–Building upon removal from isolation status due to his poor behavior.
C. Denial of Preliminary Injunction After the hearing, the magistrate judge issued a report recommending that the district court deny Miller’s motion for a preliminary injunction. The magistrate judge concluded that Miller arguably demonstrated a likelihood of success on the merits of his Eighth–Amendment claims that GDOC staff “knowingly failed to remove [Miller’s] bed from his cell each day as recommended by the Legal Division of the GDOC and failed to change his status to allow for complete general population privileges for one day following thirty days of disciplinary isolation.” The magistrate judge found, however, that Miller failed to establish irreparable harm, as required for a preliminary injunction.
With regard to Miller’s Eighth–Amendment claims, the magistrate judge concluded, on the basis of Dr. Mailloux’s testimony, that Miller failed to demonstrate that the defendants were deliberately indifferent to his serious medical needs. Specifically, the magistrate judge’s report stated:
Mailloux testified that Plaintiff has been provided adequate medical care and that there are no serious medical needs of Plaintiff which have not been accommodated. Additionally, Dr. Mailloux explained that Plaintiff has refused medical care on several occasions. Some of these incidents include Plaintiff refusing to go to consultative appointments at Augusta Medical State Prison because he would not be

transported in a vehicle which was wheelchair accessible. Dr. Mailloux explained that Plaintiff’s medical condition is such that he does not need to be transported in a wheelchair accessible van.3
*1257 Next, the magistrate judge found that: (1) the prison’s actions in not permitting Miller to reenter the general population were reasonable due to Miller’s aggressive behavior and his defenselessness to attacks from other inmates; (2) Miller failed to demonstrate a likelihood of success on the merits of his due-process claim; and (3) any harm that Miller might suffer in the future was not imminent. The magistrate judge refused to recommend that Miller be transferred to another facility, such as Augusta State Medical Prison. Over Miller’s objections, the district court adopted the magistrate judge’s report and denied Miller’s motion for a preliminary injunction.
D. Summary Judgment for Garner and Sikes Subsequently, all defendants jointly moved for summary judgment, and submitted the affidavits of King, Sikes, and Dr. Mailloux. In his affidavit, Warden Sikes stated that he was not medically trained, that “sick call requests” were routed directly to GSP medical staff, and that he was never involved in any decision regarding Miller’s diagnosis or care. Moreover, Warden Sikes stated that he did not discriminate against Miller due to any disability, and that Miller was moved to disciplinary housing because he “virtually destroyed his hospital cell.” In her affidavit, Dr. Mailloux stated that the medical care received by Miller was consistent with contemporary medical standards, and that Miller’s housing assignment was not contrary to his medical condition or needs. Dr. Mailloux further stated:
While inmate Miller does have medical limitations, his condition is not such that he appears to be disabled in a major life activity. While he uses a wheelchair at times, he also has been observed standing and I have seen reports of occasions when he has caused considerable damage to his cell, all of which could not have been physically possible if he were indeed unable to ambulate as he sometimes contends.

In opposition to the defendants’ motion for summary judgment, Miller submitted two briefs, his own affidavit, as well as the affidavits of inmates Dwight Benton and Tony Goodman. Miller also filed his own motion for summary judgment.
In his affidavit, Benton, a disabled inmate at GSP, attested that the K–Building cells were not wheelchair-accessible. Benton averred that he is a paralyzed inmate at GSP, that he is also housed in the K–Building, that Miller has no access to occupational therapy, physical therapy, showers, or the library, and that Miller’s cell is not accommodated and lacks “wheelchair space.” According to Benton, Miller was harassed on a daily basis and never leaves his cell. Benton never observed Miller standing without the use of his “devices.” In his affidavit, Goodman, another disabled inmate at GSP, also stated that the cell block where he and Miller are housed is not wheelchair-accessible. According to Goodman, Miller has no way to shower, and no access to recreation, physical therapy, or occupational therapy.4
In his affidavit, Miller attested that he is paralyzed completely in his right leg and partially in his left leg due to gunshot wounds. Miller filed a letter from Dr. Mailloux in which she acknowledged that Miller is a “partially paralyzed inmate.”5 *1258 Miller testified that he is denied access to the gym, kitchen call, required medical treatment, physical therapy, occupational therapy, and urine catheters. According to Miller’s affidavit, his bed is never removed from his cell, he is denied wheelchair repairs and orthopedic shoes, his legs swell, and his back hurts. Miller asks for a bed that “works” so that he can elevate his feet and legs to prevent continuous “dropfoot, swelling.”
The magistrate judge’s report recommended (1) that summary judgment be granted to defendants Garner and Sikes but not the other defendants, and (2) that all of Miller’s motions be denied. Over Miller’s objections, the district court adopted the magistrate judge’s report and granted summary judgment to Sikes and Garner, but otherwise denied summary judgment as to defendants King, the State of Georgia, and the GDOC. The parties then consented to the jurisdiction of the magistrate judge.
E. Summary Judgment on ADA Claims Subsequently, defendants King, the State of Georgia, and the GDOC filed a supplemental motion for partial summary judgment, which the magistrate judge granted. Over Miller’s objections, the magistrate judge concluded

that: (1) Miller’s ADA claims against the State of Georgia and the GDOC were precluded by the Eleventh Amendment;6 (2) public officials, such as King, in their individual capacities are not subject to ADA liability; and (3) Miller’s only claims remaining for trial were against King for retaliation and due-process violations in prison disciplinary hearings.
F. Jury Trial on Due–Process and Retaliation Claims Against King The magistrate judge then held a jury trial on Miller’s due-process and retaliation claims against defendant King as the GSP hearing officer. The jury returned a verdict in favor of King. The magistrate judge denied Miller’s motions for a new trial and judgment as a matter of law.

to certain evidence are determinations appropriately made by a finder of fact and not a court deciding summary
judgment.” McCormick v. City of Fort Lauderdale, 333 F.3d 1234, 1240 n. 7 (11th Cir.2003).
Summary judgment is appropriate when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”
Jackson, 372 F.3d at 1279–80 (quoting Fed.R.Civ.P. 56(c)). There is no genuine issue for trial if “the record taken as a whole could not lead a rational trier of fact to
find for the non-moving party.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986) (citation
omitted); Jackson, 372 F.3d at 1279–80.

G. Appeal On appeal Miller argues that: (1) the jury’s verdict on his due-process and retaliation claims was not supported by substantial evidence; (2) the magistrate judge improperly conducted voir dire and lacked jurisdiction; (3) the magistrate judge and district court improperly denied Miller’s motions for preliminary injunctions; and (4) the magistrate judge and district court erred in granting summary judgment to the defendants on his Eighth–Amendment claims under § 1983 and his ADA claims under Title II. Except for the Eighth–Amendment and ADA claims, these arguments lack merit and warrant no further discussion.7 We thus turn to the grant of summary judgment to all defendants on Miller’s Eighth–Amendment and ADA claims.
II. STANDARD OF REVIEW
“We review the district court’s rulings on motions for summary judgment de novo, applying the same legal standards that bound the district court.” Jackson v. BellSouth Telecomm., 372 F.3d 1250, 1279 (11th Cir.2004). This Court, like the trial court, must view all evidence and all factual *1259 inferences therefrom in the light most favorable to the non-moving party. Burton v. City of Belle Glade, 178 F.3d 1175, 1187 (11th Cir.1999). “Issues of credibility and the weight afforded

III. DISCUSSION
Miller challenges the grant of summary judgment to all defendants on his Eighth–Amendment and ADA claims. Specifically, Miller argues, inter alia, that: (1) genuine issues of material fact preclude summary judgment on his Eighth–Amendment claims against Warden Sikes under
§ 1983; (2) he is entitled to prospective injunctive relief under the ADA; (3) Congress validly abrogated the Eleventh Amendment in Title II of the ADA, allowing him to recover monetary damages from the State of Georgia and the GDOC for ADA violations; and (4) the ADA provides for suits against State officials in their individual capacities, allowing his ADA claims against the individual defendants to go forward.
We affirm the district court’s grant of summary judgment in favor of the defendants except for Miller’s: (1) § 1983 Eighth–Amendment claims for monetary damages against defendant Sikes individually; (2) § 1983 Eighth–Amendment claims for injunctive relief against defendant Sikes in his official capacity as Warden of GSP; and (3) ADA claims for injunctive relief against Sikes in his official capacity as Warden of GSP.8 We explain why these claims survive summary judgment and why against only defendant Sikes.
A. Eighth–Amendment Claims Under § 1983

1. Proper Defendants Under § 1983

When filing a suit under 42 U.S.C. § 1983, a prisoner is limited with respect to whom he or she may sue. A

plaintiff may not bring a § 1983 action for monetary damages against the State of Georgia, the GDOC, or state

officials in their official capacities. Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71, 109 S.Ct. 2304, 2312,

105 L.Ed.2d 45 (1989);

Edwards v. Wallace

Community College, 49 F.3d 1517, 1524 (11th Cir.1995).9

Further, *1260 the Eleventh Amendment bars a prisoner’s

§ 1983 action against the State of Georgia and the GDOC for both monetary damages and injunctive relief. Stevens v. Gay, 864 F.2d 113, 114–15 (11th Cir.1989). Accordingly, we affirm the grant of summary judgment to

the State of Georgia and the GDOC on Miller’s § 1983 claims.

A prisoner, however, may bring a § 1983 action against state officials in their official capacities, but only
for prospective, injunctive relief. Will, 491 U.S. at 71
n. 10, 109 S.Ct. at 2312 n. 10 (citing Kentucky v. Graham, 473 U.S. 159, 167 n. 14, 105 S.Ct. 3099, 3106 n.
14, 87 L.Ed.2d 114 (1985)); Ex parte Young, 209 U.S. 123, 159–60, 28 S.Ct. 441, 453–54, 52 L.Ed. 714 (1908);
see Edwards, 49 F.3d at 1524. Further, “the Eleventh Amendment does not prohibit a plaintiff from suing state officials in their official capacities for prospective injunctive relief.” Stevens, 864 F.2d at 115. Thus, Warden Sikes in his official capacity is a suable defendant in
Miller’s § 1983 claims for injunctive relief.
In addition, a prisoner may sue state officials in their
individual capacities under § 1983 and recover monetary damages, but only if such persons are not entitled to qualified immunity. See D’Aguanno v. Gallagher, 50 F.3d 877, 879 (11th Cir.1995). Thus, Warden Sikes in his individual capacity is a suable
defendant in Miller’s § 1983 claims for monetary damages.
The more difficult question is whether Miller’s evidence was sufficient to create factual issues regarding his alleged Eighth–Amendment violations against Warden Sikes. We discuss our Eighth–Amendment jurisprudence and then apply it to Miller’s claims.

2. Unnecessary and Wanton Infliction of Pain

“Although the United States Constitution does not require comfortable prisons, neither does it permit
inhumane ones.” Farrow v. West, 320 F.3d 1235, 1242
(11th Cir.2003) (citing Farmer v. Brennan, 511 U.S. 825, 832, 114 S.Ct. 1970, 1976, 128 L.Ed.2d 811 (1994)). The treatment a prisoner receives in prison, along with the conditions under which the prisoner is confined, is governed by the Eighth Amendment, which prohibits
cruel and unusual punishment. Id. (citing Helling v. McKinney, 509 U.S. 25, 31, 113 S.Ct. 2475, 2480, 125 L.Ed.2d 22 (1993)).
The Eighth Amendment, however, “does not authorize judicial reconsideration of ‘every governmental action affecting the interests or well-being of a prisoner.’ ”
Campbell v. Sikes, 169 F.3d 1353, 1362 (11th
Cir.1999) (quoting Whitley v. Albers, 475 U.S. 312, 319, 106 S.Ct. 1078, 1084, 89 L.Ed.2d 251 (1988)). “If prison conditions are merely ‘restrictive and even harsh, they are part of the penalty that criminal offenders pay for
their offenses against society.’ ” Chandler v. Crosby, 379 F.3d 1278, 1288–89 (11th Cir.2004) (quoting
Rhodes v. Chapman, 452 U.S. 337, 347, 101 S.Ct. 2392, 2399, 69 L.Ed.2d 59 (1981)). Prison conditions rise to the level of an Eighth–Amendment violation only when they involve the wanton and unnecessary infliction of
pain. Id.; Hope v. Pelzer, 536 U.S. 730, 737, 122 S.Ct.
2508, 2514, 153 L.Ed.2d 666 (2002); Farrow, 320
F.3d at 1242; Campbell, 169 F.3d at 1362. To establish “unnecessary and wanton infliction of pain,” a plaintiff is required to show “that officials acted with
specific intent.” Campbell, 169 F.3d at 1362. “[T]he exact nature of the specific intent required depends on the
type of claim at issue.” Id. at 1363.
*1261 To show an Eighth–Amendment violation, a prisoner must satisfy both an objective and a subjective
inquiry. Chandler, 379 F.3d at 1289–90; Farrow, 320 F.3d at 1243. Under the objective component, a prisoner must prove the condition he complains of is sufficiently serious to violate the Eighth Amendment.
Hudson v. McMillian, 503 U.S. 1, 8, 112 S.Ct. 995, 999, 117 L.Ed.2d 156 (1992). Specifically, a prisoner must prove “a serious medical need” or the denial of “the minimal civilized measure of life’s necessities.”
Chandler, 379 F.3d at 1289–90; Farrow, 320 F.3d
at 1243; Rhodes, 452 U.S. at 347, 101 S.Ct. at 2399. “The challenged prison condition must be ‘extreme’ ” and must pose “an unreasonable risk of serious damage to his
future health.” Chandler, 379 F.3d at 1289–90
(quoting Hudson, 503 U.S. at 9, 112 S.Ct. at 1000)

(other citation omitted).
Under the subjective component, the prisoner must prove that the prison official acted with “deliberate indifference.” Farmer, 511 U.S. at 837, 114 S.Ct. at 1979 (stating that an individual may be held liable under the Eighth Amendment only if “the official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference”);
Hudson, 503 U.S. at 8, 112 S.Ct. at 999; Wilson v. Seiter, 501 U.S. 294, 303, 111 S.Ct. 2321, 2327, 115 L.Ed.2d 271 (1991). To prove deliberate indifference, the prisoner must show that the defendant prison official “ ‘acted with a sufficiently culpable state of mind’ ” with regard to the serious prison condition or serious medical need in issue. Chandler, 379 F.3d at 1289–90 (quoting
Hudson, 503 U.S. at 8, 112 S.Ct. at 999). Negligence or even gross negligence does not satisfy this standard.
Id.; Cottrell v. Caldwell, 85 F.3d 1480, 1490 (11th Cir.1996).
It is also “well established in this Circuit that supervisory
officials are not liable under § 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). Supervisory liability under § 1983 occurs only 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. A causal connection may be established: (1) when “a history of widespread abuse puts the responsible supervisor on notice of the need to correct the alleged deprivation, and he [or she] fails to do so”; (2) when “a supervisor’s custom or policy results in deliberate indifference to constitutional rights”; or (3) when “facts support an inference that the supervisor directed the subordinates to act unlawfully or knew that the subordinates would act unlawfully and failed to stop them from doing so.” Id. (internal punctuation, quotation marks, and citations omitted). We now turn to Miller’s claims against Warden Sikes.
3. Miller’s Claims We conclude that Miller’s evidence creates genuine issues of material fact regarding his Eighth–Amendment claims for monetary damages against Warden Sikes in his

individual capacity and for injunctive relief against Warden Sikes in his official capacity.
As a wheelchair-bound paraplegic who suffers from complete paralysis in his right leg, partial paralysis in his left leg, and a bladder condition that causes urinary incontinence, Miller unquestionably has serious medical
needs. See Brown v. Hughes, 894 F.2d 1533, 1538 (11th Cir.1990) (immobile broken foot constituted serious
medical need); Mandel v. Doe, 888 F.2d 783, 788 (11th Cir.1989) (deteriorating leg constituted *1262
serious medical need); see also Simmons v. Cook, 154 F.3d 805, 808 (8th Cir.1998) (concluding that wheelchair-bound paraplegic had serious medical needs);
Weeks v. Chaboudy, 984 F.2d 185, 187–88 (6th
Cir.1993) (same); LaFaut v. Smith, 834 F.2d 389,
393–94 (4th Cir.1987) (same); Maclin v. Freake, 650 F.2d 885, 889 (7th Cir.1981) (same).10 Miller has presented evidence that he was denied certain of those needs. As discussed previously, Miller presented testimony and affidavits stating that he has been denied wheelchair repairs, physical therapy, medical consultations, and medical devices such as leg braces and orthopedic shoes, effectively rendering Miller immobile and causing his muscles to atrophy. According to Miller, this problem is exacerbated by the undisputed failure of GSP officials to remove his bed daily from his cell to allow him to maneuver his wheelchair, as required by prison policy.11 Miller’s evidence further suggests that GSP’s failure to provide him with required medical care has caused his spinal condition to deteriorate.
In addition, Miller has presented affidavits stating that the K–Building in which he is housed does not contain wheelchair-accessible showers and toilets, that he is denied the opportunity to bathe, and that he is denied urine catheters and staff assistance in using toilets. While the defendants hotly dispute these assertions, Miller’s evidence creates genuine issues of material fact as to whether he, as a paraplegic, has been afforded the basic levels of humane care and hygiene. Assuming the truth of the affidavits presented by Miller—that Miller is wheelchair-bound and virtually immobile or trapped in his small, unsanitary cell for extended periods, forced to remain in his own urine and excrement with no ability to move and no physical therapy, as his body deteriorates—Miller has satisfied the objective prong of the deliberate indifference inquiry.
Regarding the subjective inquiry, Sikes acknowledged receiving numerous verbal and written complaints from Miller and even visited his cell. Sikes noted that Miller’s complaints have been “voiced countless times.” According to Miller’s evidence, Sikes was aware of

Miller’s serious medical needs, the conditions of his confinement, and that GSP staff were not correcting the alleged deprivations and thus were acting unlawfully. Yet, according to Miller’s evidence, Sikes nevertheless did not exercise his authority as Warden to provide Miller with the required medical attention and basic living conditions to which he is entitled under the Eighth Amendment.12
*1263 As noted earlier, supervisors, such as Warden Sikes, are not vicariously liable for the inaction of prison medical staff, guards, or other prison officials. What Miller claims, however, is that Warden Sikes knew GSP staff were acting unlawfully and that Sikes failed to stop them. To some extent, Miller’s evidence also implicates Warden Sikes in not personally having followed the prison policy regarding removal of Miller’s bed from his cell. While we recognize that Sikes’s version of events differs totally from Miller’s, the evidence presented by Miller creates genuine issues of material fact as to whether Sikes was deliberately indifferent to Miller’s serious medical needs and to the inhumane conditions in which Miller is housed, in violation of the Eighth Amendment. Accordingly, the district court erred in granting summary judgment to defendant Sikes on Miller’s Eighth–Amendment claims under § 1983.13
B. ADA Injunctive Relief We also agree with Miller that he is entitled to sue defendant Sikes in his official capacity for injunctive relief under the ADA, and that the Eleventh Amendment does not bar such suits.14
Title II of the ADA generally prohibits disability discrimination by a “public entity” in the administration
of its services, programs, or activities. 42 U.S.C. § 12132. The ADA extends to disability discrimination against state prison inmates. Pennsylvania Dep’t of Corr. v. Yeskey, 524 U.S. 206, 212, 213, 118 S.Ct. 1952, 1956, 141 L.Ed.2d 215 (1998) (stating that the “ADA unambiguously extends to state prison inmates,” but declining to determine whether that application is a constitutional exercise of congressional power); see also
Onishea v. Hopper, 171 F.3d 1289, 1296 n. 11 (11th Cir.1999) (en banc) (stating “The Supreme Court ... decided that the Americans with Disabilities Act applies to prisons”) (citing Yeskey, 524 U.S. 206, 118 S.Ct. 1952, 141 L.Ed.2d 215). Thus, the principal remaining issue raised here as to Miller’s ADA claim for injunctive relief is whether it is barred by the Eleventh Amendment.
*1264 While the Eleventh Amendment generally bars

suits against non-consenting States, “[u]nder the doctrine
of Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), there is a long and well-recognized exception to this rule for suits against state officers seeking prospective equitable relief to end continuing
violations of federal law.” Fla. Ass’n. of Rehab. Facilities v. Fla. Dept. of Health and Rehab. Servs., 225 F.3d 1208, 1219 (11th Cir.2000) (addressing a suit under the Medicaid Act).
This Ex parte Young exception was recognized in the
ADA context in Board of Trustees of University of Alabama v. Garrett, 531 U.S. 356, 374 n. 9, 121 S.Ct. 955, 968 n. 9, 148 L.Ed.2d 866 (2001). The Supreme Court in Garrett first concluded that States are entitled to sovereign immunity under the Eleventh Amendment for suits for monetary damages under Title I of the ADA. In a footnote, however, the Supreme Court reaffirmed the Ex parte Young exception, noting that its holding about monetary damages did not preclude suits under Title I of the ADA against state officials in their official capacities for injunctive relief, as follows:
Our holding here that Congress did not validly abrogate the States’ sovereign immunity from suit by private individuals for money damages under Title I does not mean that persons with disabilities have no federal recourse against discrimination. Title I of the ADA still prescribes standards applicable to the States. Those standards can be enforced by the United States in actions for money damages, as well as by private individuals in actions
for injunctive relief under Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908)....
Id. at 374 n. 9, 121 S.Ct. 955 (emphasis added). Although the above footnote was in the context of Title I rather than Title II of the ADA, and although the Supreme Court in Garrett emphasized it was ruling only on Title I,15 we see no reason (and the State defendants offer none) that claims under Title II should be treated differently with regard to injunctive relief.16
Therefore, we join our sister circuits in holding that the Eleventh Amendment does not bar ADA suits under Title II for prospective injunctive relief against state officials in

their official capacities. McCarthy v. Hawkins, 381 F.3d 407, 417 (2004 WL 1789945 at * 7) (5th Cir. August

11, 2004); Chaffin v. Kansas State Fair Bd., 348 F.3d

850, 866–67 (10th Cir.2003);

Henrietta D. v.

Bloomberg, 331 F.3d 261, 288 (2d Cir.2003) (“This

footnote, albeit dicta and although specifically addressing

Title I, reflects that the Ex parte Young exception to the

Eleventh–Amendment bar to suit is viable under the

ADA.”);

Bruggeman ex rel. Bruggeman v.

Blagojevich, 324 F.3d 906, 913 (7th Cir.2003) (noting

that there is “no relevant difference between *1265 Title I

and Title II, which governs access to services, so far as

the applicability of Ex parte Young is concerned”);

Miranda B. v. Kitzhaber, 328 F.3d 1181, 1187 (9th

Cir.2003); Carten v. Kent State Univ., 282 F.3d 391, 396 (6th Cir.2002) (holding that “an official who violates Title II of the ADA does not represent ‘the state’ for purposes of the Eleventh Amendment, yet he or she nevertheless may be held responsible in an official capacity for violating Title II, which by its terms applies

only to ‘public entit[ies]’ ”); Randolph v. Rodgers, 253 F.3d 342, 348 (8th Cir.2001).

We now turn to what Miller must prove to obtain injunctive relief in his ADA claims. To prove a claim under Title II of the ADA, a plaintiff must establish: (1) that he is a qualified individual with a disability; (2) that he was excluded from the participation in or denied the benefits of the services, programs, or activities of a public entity or otherwise subjected to discrimination by such
entity; (3) by reason of such disability. Shotz v. Cates,
256 F.3d 1077, 1079 (11th Cir.2001) (citing 42 U.S.C. § 12132).17 While the public entity in Shotz was a county courthouse, this standard is equally applicable when the
public entity or agency is a state prison. See Thompson v. Davis, 295 F.3d 890, 895 (9th Cir.2002); Randolph,
170 F.3d at 858; Love v. Westville Corr. Ctr., 103 F.3d 558, 560 (7th Cir.1996).18

In order to establish the first element of a claim under Title II of the ADA, the plaintiff must show that he is disabled and “that he ‘meets the essential eligibility requirements’ for participating in the program, with or
without reasonable accommodations.” Love, 103 F.3d at 560 (quoting 42 U.S.C. § 12131(2)).19 The ADA defines “disability” as:

(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual;
(B) a record of such an impairment; or

(C) being regarded as having such an impairment.
42 U.S.C. § 12102(2). In turn, “major life activities” are defined as including “ ‘functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.’ ”
Chenoweth v. Hillsborough County, 250 F.3d 1328, 1329 (11th Cir.2001) (quoting ADA regulations in
29 C.F.R. § 1630.2(i)).20 *1266 In this case Miller, a paraplegic, is disabled under the ADA because he is substantially limited in the major
life activity of walking. See 29 C.F.R. Pt. 1630, App. § 1630.2(j) (2004) (“[A]n individual whose legs are paralyzed” or who “can only walk for very brief periods of time” is substantially limited in the activity of walking.).
In the prison context, the difficult question is what constitutes a “qualified individual” under the ADA. A disabled prisoner may not be “qualified” under the ADA to participate in various services, programs, or activities because of disciplinary reasons, health reasons, or other,
valid penal justifications. See Love, 103 F.3d at 561 (“Nowhere does Westville [prison] argue that some other reason motivated its actions, such as the need to confine Love for disciplinary reasons, or for fear that other inmates would be infected, or because Love was otherwise unqualified to participate.”); see also
Onishea, 171 F.3d at 1296–1301. Thus, whether a particular disabled prisoner is “qualified” to participate in the service, program, or activity at issue must be decided case by case based on numerous factors, including but not limited to valid penal justifications for excluding a particular individual prisoner from a service, program, or activity.
If a prisoner is both disabled and an “otherwise qualified individual,” a state prison may not deny services, programs, or activities merely because the prisoner has a disability. In Shotz, this Court noted that ADA regulations required that “ ‘no qualified individual with a disability shall, because a public entity’s facilities are inaccessible to or unusable by individuals with disabilities, be excluded from participation in, or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any public entity.’ ”
Shotz, 256 F.3d at 1079–80 (quoting 28 C.F.R. § 35.149). Rather, “a public entity must make its services, programs, or activities readily accessible to disabled individuals.” Id. (internal quotations and citations
omitted); see Randolph, 170 F.3d at 858 (The ADA “require[s] that otherwise qualified individuals receive meaningful access to programs and activities.” (quotation marks and citations omitted)); 28 C.F.R. § 35.150(a)

(2004) (“A public entity shall operate each service, program, or activity so that the service, program, or activity, when viewed in its entirety, is readily accessible to and usable by individuals with disabilities.”).
Nonetheless, even if an inmate is a “qualified” individual and entitled to reasonable accommodations, we must emphasize that “terms like ‘reasonable’ ... are relative to circumstances, and the circumstances of a prison are different from those of a school, an office, or a factory....”
Crawford v. Indiana Dep’t of Corrs., 115 F.3d 481, 487 (7th Cir.1997), abrogated on other grounds,
Erickson v. Bd. of Governors of State Colls. & Univs. for Northeastern Ill. Univ., 207 F.3d 945 (7th Cir.2000). Consequently, courts must be mindful of the necessary balance between the ADA’s worthy goal of integration and a prison’s unique need for security, safety, and other
penological concerns. See Randolph, 170 F.3d at 859 (“The defendants presented substantial evidence that Randolph’s request for [a signing] interpreter created safety and security issues, as well as placed a financial burden on the prison. The Department of Corrections is entitled to have its evidence considered by the fact-finder
in this case.”); Love, 103 F.3d at 561 (“Security concerns, safety concerns, and administrative exigencies would all be important considerations to take into
account.”); Crawford, 115 F.3d at 487 (“The security concerns that the defendant rightly emphasizes in urging us to exclude prisoners *1267 from the protections of the Act are highly relevant to determining the feasibility of the accommodations that disabled prisoners need in order to have access to desired programs and services.”).
Finally, prisoner access to programs need not be universal because “[a] public entity need not ‘make structural changes in existing facilities where other methods are effective in achieving compliance with this
section.’ ” Shotz, 256 F.3d at 1080 (quoting 28 C.F.R. § 35.150(b)(1)). Rather, “if one facility is inaccessible, a [prison] may comply with Title II by making its services, programs, and activities available at another facility that
is accessible.” Shotz, 256 F.3d at 1080 (citing
Parker v. Universidad de Puerto Rico, 225 F.3d 1, 5 (1st Cir.2000)).21
While we conclude that Miller has a disability under the ADA, the magistrate judge did not address Miller’s ADA claims for injunctive relief and whether Miller was a “qualified individual” under the ADA, or whether his disciplinary problems made him unqualified to participate in certain services, programs, or activities. If Miller is a qualified individual for at least some services, programs, or activities, the magistrate judge also did not address

what accommodations are reasonable under the ADA in Miller’s particular case. Thus, we remand all of Miller’s ADA claims for injunctive relief against defendant Sikes in his official capacity for the district court to determine these issues in the first instance.
C. ADA Monetary Damages Claims On appeal, Miller also argues that the magistrate judge erred in granting summary judgment for defendants on Miller’s ADA claims for monetary damages. As explained above, the ADA applies to state prisons, and Miller is entitled to prove his ADA claims for injunctive relief against defendant Warden Sikes in his official capacity. Regarding Miller’s ADA claims for monetary damages, however, this case presents the formidable legal question of whether Congress constitutionally abrogated the Eleventh Amendment in Title II of the ADA—a question that has attracted significant and well-founded debate in the courts. To aid our analysis, we describe the interplay between the ADA and the Eleventh Amendment, and the evolving jurisprudence in this area, culminating in the Supreme Court’s recent decision in
Tennessee v. Lane, 541 U.S. 509, 124 S.Ct. 1978, 158 L.Ed.2d 820 (2004).
1. ADA Overview The purpose of the ADA is “to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.” 42 U.S.C. § 12101(b)(1). To that end, the ADA invokes “the sweep of congressional authority, including the power to enforce the fourteenth amendment and to regulate commerce,” 42 U.S.C. § 12101(b)(4), and generally prohibits discrimination against individuals with disabilities in the areas of employment (Title I); public services, programs, *1268 and activities (Title II); and public accommodations (Title III). See Lane, 124 S.Ct. at 1984.
Specifically, Title II of the ADA—the title at issue here—prescribes that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132 (emphasis added). Title II thus purports to regulate discrimination in the provision of public services,

programs, or activities by public entities. The Supreme Court has instructed that the ADA extends to
discrimination against state prison inmates. Yeskey, 524 U.S. at 211–12, 118 S.Ct. at 1955–56. Neither the Supreme Court nor this Court, however, has yet addressed the precise issue in this case: whether States can be sued for monetary damages for violations of Title II of the ADA, as applied in the prison context.
2. Eleventh–Amendment Analysis As a general rule, the Eleventh Amendment grants States immunity to suits brought by private citizens in federal court.22 The Supreme Court has recognized that Congress can abrogate that sovereign immunity where (1) Congress “unequivocally expressed its intent to abrogate” the States’ sovereign immunity in the statute at issue, and (2) “Congress acted pursuant to a valid grant of constitutional
authority.” Kimel v. Florida Bd. of Regents, 528 U.S. 62, 73, 120 S.Ct. 631, 640, 145 L.Ed.2d 522 (2000). The ADA plainly states that “[a] State shall not be immune under the eleventh amendment to the Constitution of the United States from an action in Federal or State Court ...
for a violation of” the ADA. 42 U.S.C. § 12202. Accordingly, the first requirement—a clear intention to abrogate Eleventh–Amendment immunity—is satisfied.
See Lane, 124 S.Ct. at 1985. As to the second requirement, the ADA invokes “the sweep of congressional authority, including the power to enforce the fourteenth amendment and to regulate commerce....” 42 U.S.C. § 12101(b)(4). However, the Supreme Court has clarified that Congress may not abrogate the States’ Eleventh–Amendment immunity for monetary-damages
suits based on its Article I commerce power. Garrett,
531 U.S. at 364, 121 S.Ct. at 962; Kimel, 528 U.S. at 79, 120 S.Ct. at 643. The paramount question, then, is whether Congress’s intended abrogation of the States’ Eleventh–Amendment immunity in Title II of the ADA was a valid exercise of its remedial powers under § 5 of the Fourteenth Amendment.23
Section 5 of the Fourteenth Amendment provides: “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.” U.S. Const. amend. XIV, § 5. The *1269 Supreme Court has concluded that § 5 authorizes Congress to “remedy and to deter violation of rights guaranteed [by the Fourteenth Amendment] by prohibiting a somewhat broader swath of conduct, including that which is not itself forbidden by
the Amendment’s text.” Kimel, 528 U.S. at 81, 120 S.Ct. at 644. “Legislation which deters or remedies

constitutional violations can fall within the sweep of Congress’ enforcement power even if in the process it prohibits conduct which is not itself unconstitutional and intrudes into ‘legislative spheres of autonomy previously
reserved to the States.’ ” City of Boerne v. Flores, 521 U.S. 507, 518, 117 S.Ct. 2157, 2163, 138 L.Ed.2d 624 (1997) (citation omitted).
On the other hand, the Supreme Court has decided that the remedial and preventive measures “may not work a
‘substantive change in the governing law.’ ” Lane, 124
S.Ct. at 1986 (quoting Boerne, 521 U.S. at 519, 117 S.Ct. at 2164). Regarding Congress’s § 5 authority, the Supreme Court has acknowledged that “the line between measures that remedy or prevent unconstitutional actions and measures that make a substantive change in the governing law is not easy to discern, and Congress must have wide latitude in determining where it lies,” but has stressed that “the distinction exists and must be
observed.” Boerne, 521 U.S. at 519–20, 117 S.Ct. at 2164.
In determining whether Congress has acted within the scope of its § 5 power to abrogate States’ sovereign immunity, the Supreme Court applies the three-part “congruence and proportionality” test first established in
Boerne, 521 U.S. at 520, 117 S.Ct. at 2164. In applying the Boerne test, a court must: (1) identify “with some precision the scope of the constitutional right at
issue,” Bd. of Trs. of Univ. of Ala. v. Garrett, 531 U.S. 356, 365, 121 S.Ct. 955, 963, 148 L.Ed.2d 866 (2001); (2) determine whether Congress identified a history and pattern of unconstitutional conduct by the States, and (3) if so, analyze whether the statute is an appropriate, congruent, and proportional response to that history and
pattern of unconstitutional treatment. Garrett, 531
U.S. at 374, 121 S.Ct. at 968; see Boerne, 521 U.S. at 520, 117 S.Ct. at 2164.
In Garrett, 531 U.S. at 374, 121 S.Ct. at 968, the Supreme Court applied the Boerne test to Title I of the ADA and held that Congress did not validly abrogate the States’ Eleventh–Amendment immunity to suits for monetary damages under Title I, which relates to employment discrimination. The Supreme Court’s decision in Garrett was driven by its conclusion that Congress’s exercise of prophylactic powers under § 5 was unsupported by a relevant history and pattern of
constitutional violations. 531 U.S. at 368, 374, 121 S.Ct. at 965, 967–68. In so holding, the majority opinion in Garrett stated that the “overwhelming majority” of the evidence before Congress relating to disability discrimination related to “the provision of public services

and public accommodations, which areas are addressed in
Titles II and III,” rather than Title I. Id. at 371 n. 7, 121 S.Ct. at 966 n. 7. Thus, in Garrett, the Supreme Court left unanswered the question raised here of whether Congress validly abrogated the Eleventh Amendment in Title II of the ADA.24
In Tennessee v. Lane, the Supreme Court revisited the question of whether Congress validly abrogated the Eleventh Amendment in the ADA, this time examining Title II in the context of access of disabled persons to the courts. Although the plaintiffs in Lane were not prisoners, Lane explains the analysis required to determine whether Title II of the ADA properly *1270 abrogates the Eleventh Amendment in the prison context in this case. Thus, we review Lane in detail.
3. Tennessee v. Lane In Lane, the plaintiffs asserted ADA claims relating to the access of disabled persons to courts. After summarily acknowledging that Congress clearly intended to abrogate Eleventh–Amendment immunity in Title II, the Supreme Court reaffirmed the application of the Boerne
“congruence and proportionality” test. Lane, 124 S.Ct. at 1986. Applying the first step of the Boerne analysis, the Supreme Court noted that Title II, like Title I, seeks to enforce the Fourteenth Amendment’s “prohibition on
irrational disability discrimination.” Id. at 1988. But, the Supreme Court concluded, “it also seeks to enforce a variety of other basic constitutional guarantees, infringements of which are subject to more searching judicial review,” including rights relating to access to courts protected by the Due–Process Clause of the Fourteenth Amendment and the Confrontation Clause of the Sixth Amendment (applied to the States via the Fourteenth Amendment). Id.
In Lane, the Supreme Court then proceeded to the second step, in which it addressed the history and pattern of violations of these constitutional rights by States against the disabled. After noting that the “appropriateness of the remedy depends on the gravity of the harm it seeks to prevent,” the Supreme Court stated: “It is not difficult to perceive the harm that Title II is designed to address. Congress enacted Title II against a backdrop of pervasive unequal treatment in the administration of state services and programs, including systematic deprivations of
fundamental rights.” Id. at 1988–89. The Supreme Court catalogued many such deprivations in the areas of voting, marrying, serving as jurors, unjustified commitment, abuse and neglect in mental health

hospitals, and zoning decisions, and then explained that the decisions of other courts “document a pattern of unequal treatment in the administration of a wide range of public services, programs, and activities, including the
penal system, public education, and voting.” Id. at 1989 (footnotes omitted) (emphasis added). In Lane, the Supreme Court concluded that “[t]his pattern of disability discrimination persisted despite several federal and state legislative efforts to address it,” and that in the deliberations preceding the ADA’s enactment, “Congress identified important shortcomings in existing laws that rendered them ‘inadequate to address the pervasive problems of discrimination that people with disabilities
are facing.’ ” Id. at 1990 (quoting S.Rep. No. 101–116, at 18S.Rep. No. 101–116, at 18).

The Supreme Court completed its step-two analysis with the conclusion that Title II was enacted in response to a history and pattern of disability discrimination in the “provision of public services and access to public facilities,” as follows:

The conclusion that Congress drew from this body of

evidence is set forth in the text of the ADA itself:

“Discrimination against individuals with disabilities

persists in such critical areas as ... education,

transportation,

communication,

recreation,

institutionalization, health services, voting, and access

to public services.” 42 U.S.C. § 12101(a)(3) (emphasis

added). This finding, together with the extensive record

of disability discrimination that underlies it, makes

clear beyond peradventure that inadequate provision of

public services and access to public facilities was an

appropriate subject for prophylactic legislation.

Id. at 1992 (emphasis added). The Supreme Court in Lane concluded that Title II of the ADA was enacted in response to a history and pattern of constitutional violations *1271 by the States, thereby satisfying Boerne’ s step-two inquiry.25

The third and final query in the Eleventh–Amendment

analysis is whether the legislation at issue is a congruent,

proportional response to that history. In Lane, the

Supreme Court declined to decide whether Title II as a

whole

satisfies

Boerne’s

step-three

congruence-and-proportionality requirement. Instead, the

Supreme Court adopted an “as-applied” test, stating that

“nothing in our case law requires us to consider Title II,

with its wide variety of applications, as an

undifferentiated whole.... Because we find that Title II

unquestionably is valid § 5 legislation as it applies to the

class of cases implicating the accessibility of judicial

services, we need go no further.” (emphasis added).26

Id. at 1992–93

Noting the long history and intractability of the States’ disability discrimination in the area of access to courts, and more generally the unequal treatment in the administration of public services, and the “considerable evidence of the shortcomings of previous legislative responses,” the Supreme Court concluded that Congress was justified in enacting prophylactic measures in Title II
for access to judicial services. Id. at 1993. The Supreme Court characterized Title II’s remedy in the area of access to courts as “limited” in that it does not require “States to employ any and all means to make judicial services accessible to persons with disabilities, and it does not require States to compromise their essential eligibility criteria for public programs.” Id. Rather, Title II requires only “reasonable modifications.” Id.
Moreover, in Lane the Supreme Court emphasized the traditional breadth of the States’ due-process responsibility to afford individuals access to courts. In light of the limited nature of the ADA’s remedy and the States’ expansive due-process responsibilities, the Court concluded: “This duty to accommodate is perfectly consistent with the well-established due process principle that, ‘within the limits of practicability, a State must afford all individuals a meaningful opportunity to be
heard’ in its courts.” Id. at 1994 (quoting Boddie v. Connecticut, 401 U.S. 371, 379, 91 S.Ct. 780, 786–87, 28 L.Ed.2d 113 (1971)) (emphasis added). The Supreme Court thus concluded that Title II’s obligation to accommodate persons with disabilities in the administration of justice “cannot be said to be ‘so out of proportion to a supposed *1272 remedial or preventive object that it cannot be understood as responsive to, or designed to prevent, unconstitutional behavior.’ ” Id.
We now apply the Boerne/Lane test to Miller’s ADA claims in the prison setting.27
4. Application of Boerne/Lane to this case In the first step of the Boerne/Lane analysis, we identify the scope of the constitutional right at issue. Both Miller and the defendants agree that the only right at issue in this particular case is Miller’s Eighth–Amendment right to be free from cruel and unusual punishment.28
The second step requires us to determine whether Title II was enacted in response to a history and pattern of constitutional violations by the States. Although the defendants argue there is insufficient evidence of disability discrimination in prisons, we conclude that this step-two inquiry under Title II already has been decided

by the Supreme Court in Lane. As previously discussed, in applying the second step of the Boerne test, the Supreme Court in Lane considered evidence of disability discrimination in the administration of public services and programs generally, rather than focusing only on discrimination in the context of access to the courts, and concluded that Title II in its entirety satisfies Boerne’s step-two requirement that it be enacted in response to a history and pattern of States’ constitutional violations. Id. at 1992. We are bound by that conclusion as to step two.

We now proceed to the third and final step of the Boerne/Lane inquiry. This Court must decide if Title II of the ADA, as applied to claims rooted in the Eighth Amendment, is an appropriate § 5 response to the above-described history and pattern of unconstitutional

treatment. Lane, 124 S.Ct. at 1992. Given Lane, we accepted at step two that Title II was enacted in response to a history and pattern of disability discrimination in the administration of public services and programs generally. To give meaning to the Supreme Court’s context-by-context analytical approach, however, we must consider, in step three, the history of discrimination not generally but specifically in the prison context, and the scope of the Eighth–Amendment constitutional right, and determine whether the remedy afforded by Title II is congruent and proportional to its historical backdrop and to the object of enforcing the Eighth–Amendment right to

be free from cruel and unusual punishment. Lane, 124

S.Ct.

at

1993.

To

meet

this

congruence-and-proportionality *1273 test, legislation

must be tailored to remedy or prevent the demonstrated

unconstitutional conduct.

Florida Prepaid

Postsecondary Educ. Expense Bd. v. College Sav. Bank,

527 U.S. 627, 639, 119 S.Ct. 2199, 2207, 144 L.Ed.2d

575 (1999).

We recognize that § 5 authorizes Congress to deter Eighth–Amendment violations by prohibiting “a somewhat broader swath of conduct” than that prohibited by the Eighth Amendment and by proscribing “facially constitutional conduct[ ] in order to prevent and deter
unconstitutional conduct.” Lane, 124 S.Ct. at 1985 (internal quotation marks and citations omitted). Congress’s remedial and preventive measures, however, may not go so far as to work a substantive change in the
governing Eighth–Amendment law. Lane, 124 S.Ct. at 1986 (stating that Congress’s remedial and preventive measures “may not work a ‘substantive change in the
governing law’ ” (quoting Boerne, 521 U.S. at 519, 117 S.Ct. at 2164)). In other words, § 5 does not place in the hands of Congress a tool to rewrite the Bill of Rights. Instead, when Congress enacts § 5 prophylactic legislation, there must be “proportionality or congruence

between the means adopted and the legitimate end to be
achieved.” Boerne, 521 U.S. at 533, 117 S.Ct. at 2171.
Miller and the United States, as intervenor, argue that a history and pattern of disability discrimination in prisons existed and also formed part of the historical backdrop against which Congress enacted Title II of the ADA.29 While the defendants contend that the evidence of a history and pattern of unequal treatment in prisons is scant, Miller argues that the evidence as to prisons is not substantially less meaningful than the evidence upon which the Supreme Court relied in Lane in the context of access to courts.30 Even if a documented history of disability discrimination specifically in the prison context justifies application of some congressional prophylactic legislation to state prisons, what makes this case radically different from Lane is the limited nature of the constitutional right at issue and how Title II, as applied to prisons, would substantively and materially rewrite the Eighth Amendment. In this case, we focus on the limited nature of *1274 the Eighth–Amendment right because in Lane, the Supreme Court’s conclusion that Title II’s remedy is congruent and proportional in the access-to-courts context relied heavily upon the nature of the constitutional right in issue and the States’ expansive due-process obligation to provide individuals with access to the courts. It was on that basis that the Supreme Court concluded that the Title II-imposed duty to accommodate is “perfectly consistent with the well-established due process principle that, within the limits of practicability, a State must afford to all individuals a meaningful
opportunity to be heard in its courts.” Lane, 124 S.Ct. at 1994 (internal quotation marks and citation omitted).
This robust, positive due-process obligation of the States to provide meaningful and expansive court access is in stark contrast with the States’ Eighth–Amendment, negative obligation to abstain from “cruel and unusual punishment,” a markedly narrow restriction on prison administrative conduct. In the prison context, the States historically have wielded far-reaching discretion in their treatment of inmates, confined only by the limited Eighth–Amendment requirement that such treatment not be “cruel and unusual punishment.”31 The Eighth Amendment has no effect on most prison services, programs, and activities, such as educational, recreational, and job-training programs. Rather, the Eighth Amendment is limited to punishment, and “cruel and unusual” punishment at that. In other words, the Eighth Amendment imposes a narrow restriction—“cruel and unusual”—on only a limited sphere of prison administrative conduct—“punishment.” As explained above, even as to that punishment sphere, negligence or gross negligence does not satisfy the Eighth–Amendment
standard. Cottrell, 85 F.3d at 1490. Instead, a prisoner

alleging an Eighth–Amendment violation confronts an exacting burden of showing that the prison official wantonly and willfully inflicted pain on the inmate.
Chandler, 379 F.3d at 1288–90. The Eighth Amendment regulates only a small slice of prison administrative conduct.
Title II of the ADA, on the other hand, purports to proscribe the exclusion of a “qualified,” disabled prisoner from participation in any “services, programs, or activities” of a public entity. Title II is not tailored to provide prophylactic protection of the Eighth–Amendment right; instead, it applies to any service, program, or activity provided by the prison, whether educational, recreational, job-training, work in prison industries, drug and alcohol counseling, or a myriad of other prison services, programs, and activities not affected by the Eighth Amendment. Although we recognize Congress’s power to proscribe facially constitutional conduct, Title II does not merely proscribe a “somewhat broader swath of conduct” than the Eighth Amendment, but prohibits a different swath of conduct that is far broader and even totally unrelated to the Eighth Amendment in many instances. In short, Title II prohibits far more state conduct and in many more areas of prison administration than conceivably necessary to enforce the Eighth Amendment’s ban on cruel and unusual punishment. Indeed, Title II addresses all prison services, programs, and activities—and goes well beyond the basic, humane necessities guaranteed by the Eighth Amendment—to disabled prisoners.
*1275 Accordingly, we conclude that Title II’s affirmative duty to accommodate qualified, disabled prisoners is markedly different than, and cannot be said to be “perfectly consistent with,” traditional protections afforded by the Eighth Amendment. A requirement of reasonable accommodations for a qualified, disabled prisoner in the prison’s educational, recreational, and job-training programs, for example, bears no permissible prophylactic relationship to deterring or remedying violations of disabled prisoners’ right to be free from cruel and unusual punishment. Rather, Title II of the ADA, as applied in the Eighth–Amendment context to state prisons, fails to meet the requirement of proportionality and congruence.32
Miller stresses that Title II is limited in that it does not require state prisons to compromise their essential eligibility criteria for their services, programs, and activities, and that it does not require States to fundamentally alter the nature of those services, programs, or activities.33 What Miller ignores, however, is that the Eighth Amendment has no effect on most prison services, programs, and activities. Further, while Miller’s eligibility and the extent of the state prison’s ADA

obligations under Title II may be much more limited due to his disciplinary status in isolation in a maximum-security building, the § 5 issue must be examined in the state-prison context as a whole and the States’ ADA obligations under Title II to disabled prisoners generally, most of whom are not in disciplinary isolation in a maximum-security building. As noted earlier, ADA regulations require that “ ‘no qualified individual with a disability shall, because a public entity’s facilities are inaccessible to or unusable by individuals with disabilities, be excluded from participation in, or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any
public entity.’ ” Shotz, 256 F.3d at 1079–80 (quoting 28 C.F.R. § 35.149). While a prison’s unique needs may impact what is reasonable, it is still clear that the ADA affects far more state-prison conduct and far more prison services, programs, and activities than the Eighth Amendment. Simply put, to uphold Title II’s application to state prisons would allow Congress to “rewrite” the
Eighth–Amendment law. See Garrett, 531 U.S. at 374, 121 S.Ct. at 968. Therefore, Title II of the ADA, as applied in this prison case, does not validly abrogate the States’ sovereign immunity and cannot be enforced against the State *1276 of Georgia or the GDOC in a suit for monetary damages.34
D. ADA Claims Against Individuals Finally, Miller argues that the magistrate judge erred in granting summary judgment to defendant King on Miller’s ADA claims against King in his individual capacity. We disagree because the magistrate judge properly concluded that individuals are not subject to
personal liability under § 12132 for violations of Title II of the ADA.
As stated above, § 12132 states that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any
such entity.” 42 U.S.C. § 12132 (emphasis added). Thus, the plain language of the statute applies only to public entities, and not to individuals.
Miller, on the other hand, argues that the phrase “by any such entity” modifies only the final clause of the sentence: “be *1277 subjected to discrimination.” Miller thus contends that the first part of the sentence, which provides that an individual with a disability “shall not be excluded from participation in or denied the benefits of

the services, programs, or activities of a public entity,” applies not only to public entities but also to individual officials, while the final “discrimination” clause applies only to actions of public entities.
Miller’s argument fails for two reasons. First, under Miller’s interpretation, Congress specified the parties that could be liable for discrimination, yet inexplicably failed to specify who could be liable for denial of benefits of services, programs, or activities, implicitly allowing a broader range of defendants to be liable for those violations. In the absence of any reason for such a distinction, Miller’s interpretation is nonsensical.
Second, had Congress intended to create liability for individuals under Title II of the ADA, it easily could have provided for such liability. In fact, Congress did provide for such liability for retaliation claims. Specifically, § 12203 provides, in relevant part: “No person shall discriminate against any individual because such individual has opposed any act or practice made unlawful by this chapter or because such individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this chapter.”
42 U.S.C. § 12203(a) (emphasis added).35 Congress
clearly prohibited ADA violations by persons in § 12203, and we must assume that its failure to do so in
§ 12132 was purposeful. Accordingly, the natural
meaning of § 12132 is that liability extends only to public entities and not to persons in their individual capacities.
We thus conclude that § 12132 does not provide for claims against individuals in their individual capacities, and that the magistrate judge did not err in granting defendant King summary judgment on that basis. This conclusion is in accord with those of our sister circuits
that have decided the issue. See, e.g., Garcia v. S.U.N.Y. Health Sciences Ctr. of Brooklyn, 280 F.3d 98, 107 (2d Cir.2001) (“Insofar as Garcia is suing the individual defendants in their individual capacities, neither Title II of the ADA nor § 504 of the Rehabilitation Act provides for individual capacity suits against state
officials.”); Walker v. Snyder, 213 F.3d 344, 346 (7th Cir.2000), abrogated on other grounds, as recognized in
Bruggeman ex rel. Bruggeman v. Blagojevich, 324
F.3d 906, 912–13 (7th Cir.2003); Vinson v. Thomas,
288 F.3d 1145, 1156 (9th Cir.2002); Alsbrook v. City of Maumelle, 184 F.3d 999, 1005 n. 8 (8th Cir.1999) (“[W]e agree ... that the commissioners may not be sued in their individual capacities directly under the provisions of Title II. Title II provides disabled individuals *1278 redress for discrimination by a ‘public entity.’ That term,

as it is defined within the statute, does not include individuals.”).

for injunctive relief. We otherwise affirm the grant of summary judgment in favor of all defendants on all remaining claims.
AFFIRMED IN PART; REVERSED IN PART; and REMANDED.

IV. CONCLUSION
For all the above reasons, we reverse the grant of summary judgment to defendant Sikes (1) individually on Miller’s Eighth–Amendment claims for monetary
damages under § 1983, (2) in his official capacity on Miller’s Eighth–Amendment claims for injunctive relief, and (3) in his official capacity on Miller’s ADA claims

All Citations
384 F.3d 1248, 16 A.D. Cases 111, 29 NDLR P 19, 17 Fla. L. Weekly Fed. C 1039

Footnotes

1

The defendants dispute Miller’s allegation that the K–Building is not wheelchair-accessible. However, in reviewing a

grant of summary judgment, we must view all evidence and all factual inferences therefrom in the light most favorable

to the non-moving party. Burton v. City of Belle Glade, 178 F.3d 1175, 1186–87 (11th Cir.1999). Thus, we outline Miller’s version of the conditions and events at GSP.

2

While Miller makes voluminous claims, many of which are unintelligible or nonsensical, we focus on the claims by

Miller that are intelligible and appear potentially viable.

3

Part of the factual dispute in this case appears to be whether a wheelchair-accessible van is necessary to transport

Miller or whether he can be transported safely by strapping him into a regular passenger seat in a van.

4

In connection with an earlier motion, Miller presented the affidavit of Ernest Howard, another disabled inmate in the

K–Building, who stated that the cells are too small to maneuver a wheelchair and that the showers are not safe for

disabled inmates.

5

Dr. Mailloux also stated in the letter that on many occasions Miller, after requesting medical evaluation, either refused it

outright or refused to be handcuffed and transported for evaluation.

6

Although the magistrate judge granted summary judgment on all ADA claims against the State of Georgia and GDOC,

the magistrate judge’s order addressed only Miller’s ADA claims for monetary damages and not his ADA claims for

injunctive relief.

7

On appeal, Miller also contends that he is entitled to proceed under § 504 of the Rehabilitation Act of 1973, 29

U.S.C. § 794(a). This claim was never raised in the district court, and thus we do not consider it for the first time on

appeal. See Draper v. Reynolds, 369 F.3d 1270, 1274 n. 5 (11th Cir.2004).

8

Miller wants to pursue his Eighth–Amendment and ADA claims against defendants Garner and King as well, but we

conclude that his evidence does not create factual issues to survive summary judgment as against Garner and King.

Miller’s Complaint, read liberally, attempts to state an equal-protection claim under the Fourteenth Amendment, but

Miller has produced insufficient evidence to create a dispute of material fact on this claim as well.

9

In Edwards, we explained that “[a] state, a state agency, and a state official sued in his official capacity are not

‘persons’ within the meaning of § 1983, thus damages are unavailable; but a state official sued in his official

capacity is a person for purposes of § 1983 when prospective relief, including injunctive relief, is sought.” 49

F.3d at 1524 (citing Will, 491 U.S. at 71, n. 10, 109 S.Ct. at 2312, n. 10).

10 We recognize that Dr. Mailloux says that Miller is only partially paralyzed in one leg and can ambulate somewhat. However, Miller’s evidence is that he cannot, creating factual issues. In any event, even accepting Dr. Mailloux’s statements as true, Miller still has serious medical needs and is at least substantially confined to a wheelchair.

11 The district court adopted the magistrate judge’s report recommending denial of Miller’s preliminary injunction motion for failure to show irreparable injury. In that report, however, the magistrate judge found that Miller arguably demonstrated a likelihood of success on his Eighth–Amendment claim that GSP prison officials, such as Warden Sikes, knowingly failed to have his bed removed from his cell each day, as recommended by the Legal Division of the GDOC.

12

See, e.g., Simmons, 154 F.3d at 808 (concluding that prison officials were deliberately indifferent to needs of

paraplegic, where wheelchair could not pass through the cell doors and maneuver around the cell bunk to reach the

food tray slot and the toilet had no handrails); Weeks, 984 F.2d at 187 (doctor’s knowledge that paraplegic prisoner could not have wheelchair in cellblock and refusal to admit prisoner to the infirmary, where he could use a wheelchair,

established deliberate indifference); LaFaut, 834 F.2d at 393–94 (deliberate indifference where paraplegic inmate was not provided convenient wheelchair-accessible toilet and was not provided adequate rehabilitation therapy during

incarceration);

Maclin, 650 F.2d at 889 (concluding that paraplegic inmate established colorable

deliberate-indifference claim where he received no physical therapy during eleven months of incarceration).

13 Because the district court found no constitutional violation under the Eighth Amendment, the district court did not
address whether defendant Sikes individually is entitled to qualified immunity on any of Miller’s § 1983 claims for
monetary damages. See Farrow, 320 F.3d at 1249 n. 22. On appeal, the defendants also have not addressed qualified immunity. We believe that this issue is best addressed by the district court in the first instance.
In addition, we note that Miller brought another § 1983 lawsuit for Eighth–Amendment violations in Miller v. Wetherington, case no. 99–00083–CV–JEG–6 (S.D.Ga.), aff’d, 87 Fed.Appx. 711 (11th Cir.2003). On appeal, the defendants do not contend that any of Miller’s Eighth–Amendment claims in this case was already decided in his other
case. Thus, Miller may proceed on his Eighth–Amendment claims in this § 1983 suit.

14 In addition, “[b]ecause injunctions regulate future conduct, a party has standing to seek injunctive relief only if the party
alleges ... a real and immediate—as opposed to a merely conjectural or hypothetical—threat of future injury.” Shotz
v. Cates, 256 F.3d 1077, 1081 (11th Cir.2001) (quoting Wooden v. Bd. of Regents of Univ. Sys. of Ga., 247 F.3d 1262, 1284 (11th Cir.2001)). In ADA cases, this Court has held that a plaintiff lacks standing to seek injunctive relief unless he alleges facts giving rise to an inference that he will suffer future disability discrimination by the defendant. Id. Miller is serving a life sentence for murder. Given that Miller will remain incarcerated for some time, he has met this standing requirement for injunctive relief.

15 In Garrett, the Supreme Court expressly declined to address whether monetary damages under Title II of the ADA are
recoverable from the States. 531 U.S. at 360 n. 1, 121 S.Ct. at 960 n. 1 (“We are not disposed to decide the constitutional issue whether Title II, which has somewhat different remedial provisions from Title I, is appropriate legislation under § 5 of the Fourteenth Amendment when the parties have not favored us with briefing on the statutory question.”).

16 As discussed in greater detail later in this opinion, ADA Title II’s terms do not authorize a suit against an individual;

rather, they subject only a “public entity” to liability. 42 U.S.C. § 12132. However, in an official-capacity suit for injunctive relief, the real party in interest is the government entity. Thus, a suit against a state official in his or her

official capacity is in effect against a “public entity” and is authorized by Bloomberg, 331 F.3d 261, 288 (2d Cir.2003).

§ 12132. See

Henrietta D. v.

17 A “public entity” is defined as “any department, agency, special purpose district, or other instrumentality of a State or States or local government.” 42 U.S.C. § 12131(1).

18 Thompson, Randolph, and Love are cases involving prisoner suits under Title II of the ADA. In each case, our sister circuits applied the same test as this Court applied in Shotz.

19 Section 12131(2) states, as follows: The term “qualified individual with a disability” means an individual with a disability who, with or without reasonable modifications to rules, policies, or practices, the removal of architectural, communication, or transportation barriers, or the provision of auxiliary aids and services, meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity.
42 U.S.C. § 12131(2).

20 According to the EEOC regulations interpreting the ADA, The term substantially limits means: (i) Unable to perform a major life activity that the average person in the general population can perform; or (ii) Significantly restricted as to the condition, manner or duration under which an individual can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform that same major life activity.
29 C.F.R. § 1630.2(j)(1).
21 Nothing in this opinion should be read as creating a “right of transfer” to a particular prison under the ADA. Rather, prison authorities still maintain a great deal of discretion in running their penal institutions, and such discretion normally
outweighs any interest that any individual prisoner may have in remaining housed in a particular prison. See Olim v. Wakinekona, 461 U.S. 238, 245, 103 S.Ct. 1741, 1745, 75 L.Ed.2d 813 (1983) (prisoners have no right to be
incarcerated in any particular prison within a state); Ellard v. Alabama Bd. of Pardons and Paroles, 824 F.2d 937, 941–42 (11th Cir.1987). However, in the context of the ADA, a prisoner’s transfer from or to a particular prison may become relevant when prison officials attempt to determine what constitutes a “reasonable” accommodation.
22 The Eleventh Amendment provides: “The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” U.S. Const. amend. XI.
23 In the district court, the defendants’ supplemental brief in support of their summary judgment motion argued that the Commerce Clause also does not authorize Congress to regulate state prisons through Title II of the ADA. The district court’s order did not address this issue. Although we address in this section whether Title II is valid § 5 legislation, we do not address whether Title II was validly enacted under Congress’s Article I commerce power for purposes of injunctive relief against States. Because the parties have not briefed this Commerce–Clause–injunctive–relief issue on appeal, we leave it to the district court to address the issue in the first instance if it is raised by the parties on remand.
24 See supra note 15.
25 In a footnote in Lane, the Supreme Court listed only one district court and two circuit court decisions regarding deprivation of rights in the penal system. The footnote stated:
E.g., LaFaut v. Smith, 834 F.2d 389, 394 (C.A.4 1987) (paraplegic inmate unable to access toilet facilities);
Schmidt v. Odell, 64 F.Supp.2d 1014 (D.Kan.1999) (double amputee forced to crawl around the floor of jail). See
also, e.g., Key v. Grayson, 179 F.3d 996 (C.A.6 1999) (deaf inmate denied access to sex offender therapy program allegedly required as precondition for parole).
Lane, 124 S.Ct. at 1989 n. 11. We note that two of these decisions were rendered after the ADA was enacted but were used by the Supreme Court as evidence of past discrimination addressed by the ADA. While it seems to us that there was little documentation of a history and pattern of disability discrimination in prisons recited in Lane, see note 30 infra, the Supreme Court in Lane in effect has decided the step-two inquiry as to Title II, and we must follow the Supreme Court’s lead.
26 This “as-applied” approach was heavily criticized in the dissent of Justice Rehnquist, in which Justices Kennedy and
Thomas joined. Lane, 124 S.Ct. at 2004–05 (Rehnquist, J., dissenting) (“The effect [of the as-applied analytical approach] is to rig the congruence-and-proportionality test by artificially constricting the scope of the statute to closely mirror a recognized constitutional right.”). Because the majority opinion, however, follows an as-applied approach, we also must do so in this case.
27 We can locate no post-Lane circuit court decision deciding whether Congress in Title II of the ADA validly abrogated the States’ immunity for monetary damages outside the access-to-the-courts context. Before Lane, the circuits were
split on this issue. Compare Wessel v. Glendening, 306 F.3d 203 (4th Cir.2002) (no valid abrogation);
Thompson v. Colorado, 278 F.3d 1020 (10th Cir.2001) (same); Reickenbacker v. Foster, 274 F.3d 974 (5th
Cir.2001) (same); Alsbrook v. City of Maumelle, 184 F.3d 999 (8th Cir.1999) (same) with Hason v. Medical Bd.
of California, 279 F.3d 1167 (9th Cir.2002) (abrogation valid); Popovich v. Cuyahoga County Ct. of Common Pleas, 276 F.3d 808 (6th Cir.2002) (en banc) (Eleventh Amendment validly abrogated in context of fundamental,
due-process-based claims, but not equal-protection-based claims); Garcia v. S.U.N.Y. Health Sciences Center of

Brooklyn, 280 F.3d 98 (2d Cir.2001) (abrogation valid only as to cases where Title II violation was motivated by discriminatory animus or ill will due to disability).
28 In this case, the United States (as intervenor on appeal) argues that Miller’s case implicates a panoply of prisoner rights, but the parties do not. Accordingly, we need not consider the host of rights identified by the United States, and we limit our opinion to the Eighth–Amendment right to be free from cruel and unusual punishment.
29 Specifically, they point to: evidence before Congress that “jailers rational[ized] taking away [disabled inmates’] wheelchairs as a form of punishment,” Staff of the House Comm. On Educ. And Labor, 101st Cong., 2d Sess., Legislative History of Pub. L. No. 101–336: The Americans with Disabilities Act, Volume 2, at p. 1190 (Comm. Print 1990); and evidence presented to the House and Senate Subcommittees that called attention to the “[i]nadequate treatment and rehabilitation programs [afforded the disabled] in penal and juvenile facilities,” and the “[i]nadequate ability to deal with physically handicapped accused persons and convicts (e.g., accessible jail cells and toilet facilities),” U.S. Comm’n on Civil Rights, Accommodating the Spectrum of Individual Abilities, Sept. 1983, App. A at 168. The United States also notes that a congressionally-designated task force submitted to Congress several thousand documents evidencing discrimination and segregation in the provision of public services, including the treatment of
persons with disabilities in prisons and jails, see Garrett, 531 U.S. at 393, 121 S.Ct. at 978 (Appendix to Justice Breyer’s dissent), and cites anecdotal evidence of discrimination from a report of the California Attorney General, see Calif. Att’y Gen., Commission on Disability: Final Report 103 (Dec. 1989). Miller and the United States also cite several court decisions, including those noted in Lane, relating to discrimination against prisoners. See supra note 25.
30 In Lane, the Supreme Court devoted a single paragraph to the history of disability discrimination in the specific area at
issue in Lane—access to courts. Lane, 124 S.Ct. at 1991. But see id. at 2000 (Rehnquist, J., dissenting) (“The Court’s attempt to disguise the lack of congressional documentation with a few citations to judicial decisions cannot retroactively provide support for Title II, and in any event, fails on its own terms.”).
31 Indeed, “[i]t is difficult to imagine an activity in which a State has a stronger interest, or one that is more intricately
bound up with state laws, regulations, and procedures, than the administration of its prisons.” Lewis v. Casey, 518
U.S. 343, 386, 116 S.Ct. 2174, 2197, 135 L.Ed.2d 606 (1996) (quoting Preiser v. Rodriguez, 411 U.S. 475, 491–92, 93 S.Ct. 1827, 1837, 36 L.Ed.2d 439 (1973)).
32 This case shares more in common with Title I addressed in Garrett, the Patent Remedy Act in Florida Prepaid, the Age Discrimination in Employment Act in Kimel, and the Religious Freedom Restoration Act in Boerne, all of which the Supreme Court invalidated as attempts to substantively redefine the Fourteenth Amendment. In Lane, the Supreme Court reached a different conclusion only because it decided that the ADA duty to accommodate was “perfectly consistent with” the due-process principle in issue in the access-to-the-courts context.
33 As previously noted, the ADA’s application is “limited” somewhat in that it requires only “reasonable modifications in policies, practices, and procedures,” where doing so does not “fundamentally alter the nature of the service, program,
or activity.” 28 C.F.R. § 35.130(b)(7) (2004). However, Title II creates in state prisoners new federal rights to participate in a broad array of services, programs, and activities that prisons are not required to provide and that are remote from the realm of the Eighth Amendment, and places upon the state prisons the onus of justifying any exclusion of a qualified, disabled prisoner from its services, programs, or activities. Thus, while Title II does not fundamentally alter the nature of a particular prison service, program, or activity, it does fundamentally expand and alter the nature of the States’ obligations to qualified, disabled prisoners and substantively rewrites the Eighth–Amendment law.
34 If Title II as a whole fails the congruence-and-proportionality test in the Eighth–Amendment context (as we conclude here), Miller alternatively invites us to adopt an as-applied approach under which Title II of the ADA is narrowly enforced against States only where the alleged ADA violations also actually violate the constitutional right at issue—in this case, the Eighth–Amendment right to be free from cruel and unusual punishment. If Title II applies only to actual constitutional violations, the argument becomes that it is not “so out of proportion to a supposed remedial or preventive
object that it cannot be understood as responsive to, or designed to prevent, unconstitutional behavior.” Boerne, 521 U.S. at 532, 117 S.Ct. at 2170. This approach was embraced pre-Lane by the Second Circuit in the
equal-protection context. Garcia, 280 F.3d at 111–12 (Eleventh Amendment validly abrogated with respect to Title II claims based on actual violations of the Fourteenth Amendment).
In Kiman v. New Hampshire Department of Corrections, 301 F.3d 13 (1st Cir.2002), the First Circuit adopted this as-applied approach in the Eighth–Amendment context, allowing a former state prisoner to proceed with his monetary-damages claims against state entities under Title II of the ADA because the plaintiff had alleged violations of the Eighth Amendment. The First Circuit concluded, “we hold that Kiman may proceed with his suit against the

Department, because Title II of the ADA as applied to the facts of this case properly enforces the Eighth Amendment (as incorporated against the states by the Fourteenth) and abrogates New Hampshire’s immunity from private suit.”
301 F.3d at 25. However, that decision was vacated and the case reheard by the First Circuit en banc, and the en
banc court affirmed the district court’s dismissal of the plaintiff’s ADA complaints. Kiman v. New Hampshire Dep’t of Corrs., 332 F.3d 29 (1st Cir.2003) (en banc). On petition for certiorari, the Supreme Court vacated the First Circuit’s en banc judgment and remanded the case to the First Circuit for further consideration in light of Lane. Kiman v. New Hampshire Dep’t of Corrs., 541 U.S. 1059, 124 S.Ct. 2387, 158 L.Ed.2d 961 (2004). In the post-Lane world, we decline Miller’s invitation to follow his suggested as-applied analysis because it is inconsistent with Lane. In Lane, the Supreme Court adopted a different as-applied approach in which the constitutionality of Title II is considered context by context without any mention of the ADA violations being circumscribed by or limited to what would otherwise constitute an actual constitutional violation. Instead, Lane reaffirmed (1) that Congress’s § 5 authority includes the authority to prohibit “a somewhat broader swath of conduct,” including that which is not forbidden by the Fourteenth Amendment, and (2) that “Congress may enact so-called prophylactic legislation that proscribes facially constitutional conduct, in order to prevent and deter unconstitutional
conduct.” Lane, 124 S.Ct. at 1985 (citations omitted). Therefore, under Lane, conduct does not need to be unconstitutional to be validly proscribed by Congress. Further, Miller’s approach would effectively impose a second layer to the test announced in Lane, allowing Miller to proceed on ADA claims in the prison context but only to the extent that the ADA claims constitute valid Eighth–Amendment claims.

35

This Court has held that § 12203 establishes individual liability for a violation of its prohibitions, where the “act or

practice” opposed is one made unlawful by Title II. Shotz v. City of Plantation, 344 F.3d 1161, 1164 (11th Cir.2003).

In so holding, this Court noted that § 12203, unlike § 12132 (the statute at issue in this case), extends liability to any person. Specifically, the Court stated:

In fact, § 12203 is the only anti-discrimination provision in the ADA that uses the unqualified term “person” to

define the regulated entity. Compare ... 42 U.S.C. § 12132 (“public entity”)....

Id. at 1168. The Shotz Court then noted that “[w]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion,” and that “Congress knows how to use specific language to identify which particular entities it seeks to regulate.” Id. The Court concluded that the term “person” includes individuals, id.,

and, ultimately concluded that liability for violations of § 12203 extends to individuals. Id. at 1183.

 
 449 F.3d 1149 United States Court of Appeals,
Eleventh Circuit.
Tracy MILLER, Plaintiff–Appellant, United States of America, Intervenor,
v. Ronald KING, Defendant–Appellee, Wayne Garner, The State of Georgia, The Georgia Department of Corrections, Johnny Sikes,
Defendants.
No. 02–13348. |
May 17, 2006.
Synopsis Background: Paraplegic state prisoner brought suit alleging violations of Eighth Amendment and Title II of Americans with Disabilities Act (ADA). The United States District Court for the Southern District of Georgia, No. 98-00109-CV-6, James E. Graham, United States Magistrate Judge, granted defendants summary judgment. Prisoner appealed.
[Holding:] The Court of Appeals held that remand was required, so that prisoner could amend his complaint.
Affirmed in part, vacated and remanded in part.
Opinion, 384 F.3d 1248, superseded.
Procedural Posture(s): Motion for Summary Judgment.
West Headnotes (2)
[1] Federal Courts Matters of Substance
Where disabled state prisoner failed to raise claim under Rehabilitation Act in the district court, Court of Appeals would not consider such claim for the first time on appeal. Rehabilitation Act of 1973, § 504(a), 29 U.S.C.A. § 794(a).
11 Cases that cite this headnote

[2] Federal Courts Need for further evidence, findings, or
conclusions Federal Courts
Amendment as to parties or pleading
Remand of paraplegic prisoner’s suit was required so that he could amend his complaint so that trial court could determine, on claim-by-claim basis, whether complaint alleged any Title II claims premised on conduct that did not independently violate Eighth Amendment. U.S.C.A. Const.Amend. 8; Americans with Disabilities Act of 1990, § 201 et seq., 42 U.S.C.A. § 12131 et seq.
24 Cases that cite this headnote
West Codenotes
Negative Treatment Vacated 42 U.S.C.A. § 12202.
Attorneys and Law Firms
*1150 Sarah M. Shalf (Court–Appointed), Bondurant, Mixson & Elmore, Atlanta, GA, for Miller.
David Victor Weber, Augusta, GA, David E. Lansford, Atlanta, GA, for U.S.
Sarah E. Harrington, Kevin Russell, U.S. Dept. of Justice–Civ. Rights, App., Washington, DC, for U.S.
Appeal from the United States District Court for the Southern District of Georgia.
Before CARNES, HULL and HILL, Circuit Judges.
Opinion
PER CURIAM:
In light of the Supreme Court’s decision in United States v. Georgia, 546 U.S. 151, 126 S.Ct. 877, 163 L.Ed.2d 650 (2006), we vacate in full our prior opinion in

Miller v. King, 384 F.3d 1248 (11th Cir.2004), and substitute the following in its place.
I. APPEAL
[1] On appeal Tracy Miller (“Miller”) argues that: (1) the jury’s verdict on his due process and retaliation claims was not supported by substantial evidence; (2) the magistrate judge improperly conducted voir dire and lacked jurisdiction; (3) the magistrate judge and district court improperly denied Miller’s motions for preliminary injunctions; and (4) the magistrate judge and district court erred in granting summary judgment to the defendants on his Eighth Amendment claims under 42 U.S.C. § 1983 and his claims under Title II of the Americans with Disabilities Act, 42 U.S.C. § 12131 et seq. (the “ADA”).1 Except for the Eighth Amendment and ADA claims, these arguments lack merit and warrant no further discussion. We thus turn to the grant of summary judgment to all defendants on Miller’s Eighth Amendment and ADA claims.2
[2] As to Miller’s Eighth Amendment and ADA claims, Miller’s pro se complaint and amended complaint make voluminous claims and, as noted in our prior opinion, many of his claims are unintelligible or nonsensical, but a few claims are intelligible and potentially viable. However, the analytical difficulties created by Miller’s pro se pleadings are now heightened by the Supreme Court’s decision in Georgia, which indicates that it is important for lower courts to determine on a claim-by-claim basis (1) which aspects of the State’s alleged conduct violate Title II; (2) to what extent such alleged misconduct also *1151 violates the Constitution; and (3) whether such alleged misconduct violates Title II but does not violate the Constitution. Georgia, 126 S.Ct. at 882. It is unclear from Miller’s pro se pleadings whether he asserts any Title II claims premised on conduct that does not independently violate the Eighth Amendment, which makes the analysis required by Georgia impossible.
In sum, given the Supreme Court’s intervening decision in Georgia, the current status of Miller’s pro se pleadings and his now being represented by counsel,3 we conclude that this case should be remanded to the district court for Miller to amend his complaint so that the proper claim-by-claim analysis can be undertaken. Thus, we (1)
Footnotes

vacate the district court’s February 25, 2000 order to the extent that order granted summary judgment on Miller’s Eighth Amendment claims against defendant Sikes individually and in his official capacity, (2) vacate the magistrate judge’s January 29, 2002 order to the extent it granted summary judgment on Miller’s ADA claims against defendants Sikes in his official capacity, the State of Georgia, and the Department of Corrections, and (3) remand this case to the district court with instructions to permit Miller to amend his complaint and then for further proceedings consistent with the Supreme Court’s decision in Georgia.
In his amended complaint, Miller shall specify on a claim-by-claim basis and in separate counts (1) the specific conduct he alleges violates the Eighth
Amendment and is actionable under 42 U.S.C. § 1983; (2) to what extent the alleged conduct underlying Miller’s constitutional claims also violates Title II of the ADA; (3) what specific conduct allegedly violates Title II of the ADA but does not violate the Eighth Amendment; (4) as
to his Eighth Amendment claims under § 1983, whether the defendant Warden Sikes is sued individually or in an official capacity or both; and (5) as to his ADA claims, whether the claim is brought against defendant Sikes in his official capacity, the defendant State of Georgia, and/or the defendant Department of Corrections. After Miller files his amended complaint in the district court, defendants Sikes, the State of Georgia, and the Georgia Department of Corrections shall be given a reasonable opportunity to file new motions to dismiss or for summary judgment, which the district court in the first instance shall adjudicate consistent with the Supreme Court’s decision in Georgia.4
In sum, except for Miller’s Eighth Amendment and ADA claims against defendant Sikes and his ADA claims against the defendants State of Georgia and the Georgia Department of Corrections, as to which we vacate and remand as described above, we affirm as to all claims as to all defendants. We remand this case to the district court for further proceedings consistent with this opinion.
AFFIRMED IN PART, VACATED and REMANDED IN PART.
All Citations
449 F.3d 1149, 17 A.D. Cases 1758, 19 Fla. L. Weekly Fed. C 552

1

On appeal, Miller also contends that he is entitled to proceed under § 504 of the Rehabilitation Act of 1973, 29

U.S.C. § 794(a). This claim was never raised in the district court, and thus we do not consider it for the first time on

appeal. See Draper v. Reynolds, 369 F.3d 1270, 1274 n.5 (11th Cir.), cert. denied, 543 U.S. 988, 125 S.Ct. 507, 160 L.Ed.2d 373 (2004).

2

“We review the district court’s rulings on motions for summary judgment de novo, applying the same legal standards

that bound the district court.” Jackson v. BellSouth Telecomm., 372 F.3d 1250, 1279 (11th Cir.2004). This Court, like the trial court, must view all evidence and all factual inferences therefrom in the light most favorable to the

non-moving party. Burton v. City of Belle Glade, 178 F.3d 1175, 1187 (11th Cir.1999).

3

Miller filed his complaints pro se and remained pro se until this Court appointed him pro bono counsel on appeal.

Counsel has advised this Court that counsel is willing to continue to represent Miller on remand in the district court, and

thus the district court should enter an appointment order on remand.

4

We do not express any opinion about the merits of Miller’s claims or as to what person or entity is the proper defendant

on Miller’s remaining claims. We leave all of those issues to be decided by the district court in the first instance.

 
 2009 WL 3805568 Only the Westlaw citation is currently available.
United States District Court, S.D. Georgia,
Statesboro Division.
Tracy MILLER, Plaintiff, v.
Ronald KING; Johnny Sikes; the Georgia Department of Corrections; the State of Georgia; Hugh Smith, Warden, Steve Roberts; Dr. Carolyn Mailloux; Lisa Waters Johnson; Victor L. Walker;
Dennis Brown; James Donald; Joseph Paris; Georgia State Prison; and Augusta State Medical
Prison, Defendants.
Civil Action No. CV698–109. |
Nov. 10, 2009.
Attorneys and Law Firms
Jeffrey O. Bramlett, Sarah M. Shalf, Bondurant, Mixson & Elmore Firm, Atlanta, GA, for Plaintiff.
Aaron Bradford Mason, Devon Orland, Michelle J. Hirsch, Pattie J. Williams, Dept. of Law GA Attorney General’s Office, Susan Elizabeth Teaster, Georgia Dept. of Law, Atlanta, GA, David V. Weber, Augusta, GA, for Defendants.
ORDER
JAMES E. GRAHAM, United States Magistrate Judge.
*1 On September 21, 2009, the undersigned entered an Order granting in part and denying in part Defendants’ Motion for Summary Judgment. Defendants filed a Motion for Reconsideration of that Order, Plaintiff responded, and Defendants filed a Reply. Defendants raised two (2) issues in their Motion, which the undersigned now addresses.

I. Exhaustion Defendants contend that Plaintiff failed to exhaust his administrative remedies regarding events outlined in his Amended Complaint which allegedly occurred while he was housed at Augusta State Medical Prison (“ASMP”). Defendants assert that they moved to dismiss Plaintiff’s Complaint based upon Plaintiff’s failure to exhaust his administrative remedies pursuant to the Americans with Disabilities Act (“ADA”), which is a “separate and distinct” issue from whether Plaintiff exhausted his administrative remedies pursuant to the Prison Litigation Reform Act (“PLRA”). Defendants assert that the Court, in granting their Motion to Withdraw, mistakenly concluded that they had withdrawn all exhaustion defenses in their Motion for Summary Judgment. However, Defendants contend, they only withdrew the exhaustion defense as to Plaintiff’s ADA claims.1
Defendants allege that Plaintiff never filed a grievance regarding his allegations in his Complaint and Amended Complaint for events which allegedly occurred at ASMP. Defendants aver that Plaintiff filed five (5) grievances regarding events which allegedly occurred while he was housed at ASMP, but none of the grievances involved issues of medical care or housing accommodations. Defendants assert that the grievances Plaintiff filed at ASMP prior to filing his Amended Complaint dealt with alleged assault issues and not getting a sack lunch. Defendants also assert that the grievances Plaintiff filed in 2008 while he was housed at ASMP were never appealed, and, thus, Plaintiff did not exhaust his administrative remedies. Defendants allege that Plaintiff knew how to use the grievance procedure based on the filing of five (5) grievances at ASMP, as well as the 226 grievances he filed while he was housed at GSP. Defendants contend that Plaintiff’s claim that he was prohibited from filing grievances because he was moved so often is without merit, as Plaintiff has the availability of filing an emergency grievance or filing an out-of-time grievance for good cause shown. Defendants aver that Plaintiff’s claims against ASMP and Defendants Victor Walker, Dennis Brown, Wayne Garner, James Donald, and Joseph Paris should be dismissed because Plaintiff did not exhaust his administrative remedies as to these Defendants.
Plaintiff contends that, to the extent he did not file any administrative remedies regarding his claims arising out of ASMP, it was because he was denied the ability to file grievances or to have meaningful access to the grievance process while he was housed at ASMP. Plaintiff asserts that his counselor would refuse to give him a grievance form, which cut off his ability to file a grievance. Plaintiff

also asserts that an administrative remedy must be available to a prisoner before he is required to exhaust those administrative remedies. Plaintiff alleges that, even when he was able to get a grievance form, his grievances were often denied for “a variety of contradictory and suspect reasons,” (Doc. No. 264, p. 4), such as being told he could only grieve one “issue” in a single grievance even though he was attempting to show that he was being discriminated against in a variety of different ways. However, Plaintiff asserts, if he tried to file a grievance for each instance of discrimination, he was told that he could file only one (1) grievance a week. Plaintiff also asserts that he was informed that complaints about being housed in non-accommodating cells were non-grievable because these complaints concerned housing assignments. Plaintiff further asserts that, given the one (1) grievance per week limitation, he would have procedurally defaulted on those issues. Plaintiff contends that the fact that he filed over 200 grievances while he was housed at GSP and allegedly only 5 or 6 grievances while he was housed at ASMP supports a finding that he can and does exhaust administrative remedies when they are available to him. Plaintiff alleges that Defendants did not provide the Court with copies of all of the grievances described in the affidavits in support of their Motion. Plaintiff also alleges that the affidavit Defendants submitted is inaccurate and misleading. Finally, Plaintiff alleges that it is impossible to determine whether he exhausted his administrative remedies on the 1995 grievances because, when the Georgia Department of Corrections revised its grievance policy in 2004, the original paper grievances predating the revision were destroyed.
*2 The determination of whether an inmate exhausted his available administrative remedies prior to filing a cause of action in federal court is a matter of abatement and should
be raised in a motion to dismiss. Bryant v. Rich, 530 F.3d 1368, 1374 (11th Cir.2008). “Even though a failure-to-exhaust defense is non-jurisdictional, it is like” a jurisdictional defense because such a determination “ordinarily does not deal with the merits” of a particular cause of action. Id. (internal punctuation and citation omitted). A judge “may resolve factual questions” in instances where exhaustion of administrative remedies is a defense before the court. Id.
Where Congress explicitly mandates, prisoners seeking relief for alleged constitutional violations must first exhaust inmate grievance procedures before filing suit in
federal court. See Porter v. Nussle, 534 U.S. 516, 524,
122 S.Ct. 983, 152 L.Ed.2d 12 (2002). 42 U.S.C. § 1997e(a) states, “No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law ... until such administrative remedies as are available are exhausted.” In Porter, the

United States Supreme Court held that exhaustion of available administrative remedies is mandatory.
Porter. 534 U.S. at 523. The Supreme Court has noted exhaustion must be “proper.” Woodford v. Ngo, 541 U.S. 81, 92 (2006). “Proper exhaustion demands compliance with an agency’s deadlines and other critical procedural rules because no adjudicative system can function effectively without imposing some orderly structure on the course of its proceedings.” Id. at 90–91. In other words, an institution’s requirements define what is
considered exhaustion. Jones v. Bock. 549 U.S. 199, 218, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007). It is not the role of the court to consider the adequacy or futility of the administrative remedies afforded to the inmate. Higqinbottom v. Carter, 223 F.3d 1259, 1261 (11th Cir.2000). The court’s focus should be on what remedies are available and whether the inmate pursued these remedies prior to filing suit. Id.

While “available administrative remedies” does not mean that the remedies must be adequate, it does mean that the exhaustion process actually must be available to the

inmate.

Alexander v. Hawk, 159 F.3d 1321, 1326

(11th Cir.1998). Indeed, in determining whether a

plaintiff has exhausted his administrative remedies, a

court does “not review the effectiveness of those

remedies, but rather whether remedies were available and

exhausted.” Miller v. Tanner, 196 F.3d 1190, 1193 (11th Cir.1999) (emphasis added). There is little case law addressing what constitutes “available” administrative remedies. In Hall v. Richardson, 144 F. App’x 835 (11th Cir.2005), the Eleventh Circuit chose not to address the issue of whether the denial of grievance forms by jail officials would render administrative remedies “unavailable.” 144 F. App’x at 836. Instead, that court merely noted that “[t]he Supreme Court has explained that ‘available’ refers to ‘the possibility of some relief for the

action complained of.’ ” Id. (quoting Booth v. Churner, 532 U.S. 731, 738, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001)). Several courts have found rare circumstances in which the otherwise mandatory exhaustion requirement may be excused or in which administrative remedies are not truly “available” within the meaning of the Prison

Litigation Reform Act (“PLRA”). See, e.g., Mitchell v. Horn, 318 F.3d 523, 529 (3d Cir.2003) (holding that inmate’s claims were improperly dismissed where district court failed to consider allegations that inmate was denied

grievance forms); Ziemba v. Wezner, 366 F.3d 161, 163 (2d Cir.2004) (finding that exhaustion defense is estopped if prison officials hinder inmate in exhausting

administrative remedies); Aceves v. Swanson, 75 F. App’x 295, 296 (5th Cir.2003) (finding remedies are “unavailable” where prison officials refuse to give inmate

grievance forms despite inmate’s requests).
*3 Defendants submitted the Affidavit of Jackie Morgan (“Morgan”), who was the chief counselor at ASMP from September 16, 2004, until April 1, 2008, (Doc. No. 255–3), and Plaintiff submitted his own Affidavit. (Doc. No. 265). In her Affidavit, Morgan sets forth the grievance procedure which was in place in 2004.2 Morgan states that, according to Plaintiff’s grievance history, he filed six (6) formal and seven (7) informal grievances complaining about events which allegedly occurred at ASMP. Morgan also states that, during the relevant period, Plaintiff filed the following grievances: Number 532–05–0101, filed September 29, 2005; Number 532–06–0012, filed February 2, 2006; and Number 532–08–0097, filed April 28, 2008. (Doc. No. 255–3, ¶ 10). Morgan also states that Plaintiff initiated informal grievances on September 26, 2005, September 28, 2005, February 25, 2008, February 28, 2008, March 5, 2008, and March 16, 2008. Morgan declares that Plaintiff alleged he was subjected to uses of force by prison staff in Grievance Numbers 532–05–0101 and 532–06–0012, and these grievances were sent to Internal Investigation for review. (Id. at ¶¶ 14–15). Morgan also declares that Plaintiff filed Grievance Number 532–08–0097 alleging that he was placed in a non-wheelchair accessible cell without a commode or a medically elevated bed with handrails. According to Morgan, this grievance was unresolved as of May 15, 2008 (the date she signed her Affidavit). (Id. at ¶ 30). Morgan states that Plaintiff “has never filed a formal grievance alleging he had been denied or did not receive proper prescribed medications or proper medical treatment.” (Id. at ¶ 22). Morgan also states that the informal grievances Plaintiff filed were rejected for various reasons, including containing more than one (1) issue, filing more than one informal grievance a week, or being in violation of the Standard Operating Procedure (“SOP”). Morgan further states that Plaintiff did not resubmit an informal grievance or a formal grievance after he was notified of these rejections. (Id. at ¶¶ 24–29).
In his Affidavit, Plaintiff declares that he has filed at least 11 grievances regarding medical treatment and/or accessibility issues since the 2004 changes to the SOP, “in spite of attempts by prison staff to prevent [him] from doing so.” (Doc. No. 265, ¶ 10). Plaintiff states that he filed an informal grievance on September 5, 2008, in which he alleged that he had been denied the opportunity to bathe or shower and to have yard call, church privileges, cold food, wheelchair accessible space, medical care and treatment, law library access, and legal materials. Plaintiff states this informal grievance was received on September 8, 2005, and was unresolved, which denied him the opportunity to pursue a formal grievance. (Id. at ¶ 11). Plaintiff also states that he filed a

formal grievance on September 28, 2005, after he filed an informal grievance on the same issues, and that he grieved about retaliation issues, the denial of appropriate recreation, clothing, or bedding, disability discrimination, and medical and accessibility aspects of his treatment; this grievance was denied. (Id. at ¶ 12). Plaintiff further states that he filed a formal grievance on February 1, 2006, which referenced disability discrimination, refusal to provide medical treatment, and taking away medical devices. Plaintiff declares that, before he could pursue these grievances fully, he was transferred to GSP on February 24, 2006. Plaintiff also declares that, up until 2008, whenever he was transferred away from a prison, he was refused the necessary forms to pursue a grievance or appeal regarding the former prison. (Id. at ¶¶ 14–15). Plaintiff states that the grievance procedure given to inmates could be confusing, especially regarding the resolution of complaints without filing an informal grievance. Plaintiff also states that his counselor often refused to provide him with a grievance form because it was necessary to have an informal investigation of his complaint before he was allowed to file even an informal grievance. Plaintiff declares that he did not understand how it was possible to investigate his complaint in the absence of anything written on the issue, and his counselor refused to give him an informal grievance form because the warden had not informally investigated Plaintiff’s complaint. (Id. at ¶ 17). Plaintiff states that his counselor often refused his requests for grievance forms because the issue was not grievable, Plaintiff “was not entitled to the form for some other specified reason,” or that he would be placed in isolation or receive some other type of punishment if he filed a grievance. (Id. at ¶ 18). Plaintiff also states that, even when he was provided with the forms necessary to pursue a grievance, the grievance was rejected for “bogus” reasons, such as limiting grievances to one (1) issue, even though the SOP did not define what was an “issue”. (Id. at Id. 19). Plaintiff states that he attempted to address a single issue in his grievances—discrimination against him based on his disability, which manifested itself by the receipt of disparate treatment and retaliation, the failure to provide him with medical treatment and devices, the failure to provide wheelchair accommodating facilities, and “other related issues ... raised in [his] Amended Complaint[ ]—but he was told he raised more than one (1) issue in the same grievance. (Id. at ¶ 20). Plaintiff declares that he was allowed to file only one (1) grievance per week and to have two (2) pending grievances at one time. According to Plaintiff, it would take at least a year for a grievance to be resolved. Plaintiff states that, because he is limited as to the number of grievances he could file or have pending at a time and because he had to file a grievance within 10 days of the incidents, he would be barred from filing a grievance covering each of the incidents he believed demonstrate prison official’s

discrimination against him. Moreover, Plaintiff states he has filed grievances on individual examples of discrimination and retaliation, only to be told the issues are non-grievable. For instance, Plaintiff states he filed a grievance alleging prison officials retaliated against him by filing false disciplinary reports and by failing to accommodate his medical needs and wheelchair, and this grievance was rejected on October 11, 2005, because it concerned disciplinary issues and housing assignment complaints.
*4 A review of the evidence before the Court indicates there is a factual dispute as to whether the administrative remedy procedures were “available” to Plaintiff in order for him to file informal and formal grievances and appeals of the denials of any grievances he was able to file pertaining to his confinement at ASMP. While the undersigned finds Plaintiff’s claim that the grievance procedure was confusing somewhat specious, the undersigned can not ignore Plaintiffs assertion that he was outright denied access to the grievance procedures on several occasions. Defendants submitted no documentation in support of their exhaustion defense other than two (2) affidavits and the applicable SOP, which the undersigned determines is insufficient to prove Defendants’ entitlement to the affirmative defense of failure to exhaust administrative remedies. This portion of Defendants’ Motion is DENIED.
II. Collateral Estoppel Defendants state that the Court applied Georgia law to the question of res judicata and claim preclusion but did not address the application of collateral estoppel, or issue preclusion, to Plaintiff’s cause of action. Defendants assert that the Court should apply federal common law rather than Georgia law for collateral estoppel issues, as jurisdiction in this case is based on federal question jurisdiction. Defendants request that the Court reconsider its Order regarding the preclusive effect of Plaintiff’s prior actions. Defendants contend that Plaintiff is precluded from relitigating issues against GSP that this Court already decided. Defendants asserts that Plaintiff has already litigated and lost on all issues in his Amended Complaint arising out of GSP, specifically: the denial of his leg brace and orthopedic shoes; the denial of medical treatment, supplies, and physical therapy; the failure or refusal of Department of Corrections’ employees to transfer him to an accommodating facility; retaliation through placing him in disciplinary segregation, confiscation of his medical devices, and denying him access to recreation, the law library, church services, and other privileges; the unavailability of a

wheelchair-accessible van; discrimination by DOC employees based on his disability; and the accommodation of his conditions of confinement at GSP for his disability.
Plaintiff disputes that Defendants raised an issue preclusion defense for the Court’s consideration, and, even if they had, that defense has been waived. In addition, Plaintiff alleges that this defense fails on the merits. Plaintiff contends that, as with the State’s claim preclusion argument, at best, the only issues precluded by his prior litigation were the specific factual issues raised as of the date of his prior complaints. Plaintiff avers that he alleges Defendants engaged in an ongoing pattern of deliberate indifference, discrimination, and retaliation, and this Court’s previous finding that he did not allege facts in support of those claims in 1997 would not bar such issues from being litigated in this suit, particularly in light of his Amended Complaint being filed in 2006. Plaintiff requests that the Court clarify its prior ruling on this issue so that the parties can be guided in completing discovery.
*5 Defendants are correct that this Court did not address the application of collateral estoppel, or issue preclusion. However, the undersigned did not address the application of this doctrine because Defendants did not ask that the Court do so in its original Motion. (“In keeping with this more modern analytical mode, whenever res judicata is used herein, the Defendant is referring to claim preclusion.”, Doc. No. 255, p. 17). Additionally, Defendants never raised res judicata prior to their Motion for Summary Judgment which was filed on May 16, 2008, (see Doc. Nos. 58, 75, and 117), and allowing Defendants to raise issue preclusion in the present Motion (which is at least their third bite at the same apple) is patently unfair to Plaintiff.
However, the Court stands corrected as to the proper application of law in determining the preclusive effect of a federal judgment, as Defendants note. Under federal common law, a party’s second action is barred under res judicata if all four elements are present: “(1) a final judgment on the merits, (2) rendered by a court of competent jurisdiction, (3) the parties, or those in privity with them, must be identical in both suits, and (4) the same cause of action must be involved in both cases.”
Hart v. Yamaha–Parts Distributors, Inc., 787 F.2d 1468, 1470 (11th Cir.1986). In contrast, collateral estoppel “is not limited to parties and their privies. A defendant who was not a party to the original action may
invoke collateral estoppel against the plaintiff.” Id. at 1473.
In accordance with applicable law, Plaintiff is barred from

pursuing any cause of action against any named Defendant which this Court (or the Eleventh Circuit on appeal) decided on the merits in Case Numbers CV697–144 and CV699–83. However, Plaintiff is not barred from pursuing claims that are based on events he contends occurred after the final judgments were entered in Case Numbers CV697–144 and CV699–83, even if some of the Defendants in those cases are the same as some of the Defendants in this case or the causes of action may fall under the same general legal rubric. The parties are directed to Exhibit A attached to Defendants’ Motion for Reconsideration for guidance on this issue.

to the extent the Court revisited legal principles applicable to the doctrine of res judicata. Otherwise, Defendants’ Motion is DENIED. Plaintiff’s Cross–Motion for Clarification is GRANTED, as indicated herein.
SO ORDERED.
All Citations
Not Reported in F.Supp.2d, 2009 WL 3805568

Defendants’ Motion for Reconsideration is GRANTED,

Footnotes

1

It was not abundantly clear upon review of Defendants’ Motion to Withdraw that it was the intent of Defendants to

withdraw their Motion for lack of exhaustion only as to Plaintiffs ADA claims. While Defendants mention the ADA in

paragraph 1, in the next paragraph, Defendants state they are addressing issues set forth in Plaintiffs original

Complaint and Amended Complaint in 1996, 2005, and 2006, and one complaint that likely predated 1996. Given

Defendants’ clarification in their Motion for Reconsideration, the Court will address Defendants’ original Motion on

exhaustion grounds.

2

In the undersigned’s estimation, the previous version of the grievance procedure is immaterial to the issue before the

Court. Any exhaustion issue that should have been raised prior to the appeal in this case should have been raised on a

previous occasion, i.e., prior to 2004.

 
 2007 WL 2164534 Only the Westlaw citation is currently available.
United States District Court, S.D. Georgia,
Statesboro Division.
Tracy MILLER, Plaintiff, v.
Ronald KING; Johnny Sikes; The Georgia Department of Corrections, and The State of
Georgia, Defendants.
Civil Action No. CV698-109. |
July 24, 2007.
Attorneys and Law Firms
Sarah M. Shalf, Bondurant, Mixson & Elmore, LLP, Atlanta, GA, for Plaintiff.
David V. Weber, Augusta, GA, Pattie J. Williams, Dept. of Law, Ga. Attorney General’s Office, Devon Orland, Aaron Bradford Mason, Atlanta, GA, for Defendants.
ORDER
JAMES E. GRAHAM, United States District Judge.
*1 Plaintiff, an inmate currently incarcerated at Georgia State Prison in Reidsville, Georgia, filed an action pursuant to 42 U.S.C. § 1983 on August 4, 1998, contesting certain conditions of his confinement. After a somewhat lengthy procedural history,1 the claims which remain pending pursuant to the May 17, 2006 judgment of the Eleventh Circuit are (1) an Eighth Amendment claim against Defendant Sikes in his individual and official capacities, and (2) ADA claims against Defendant Sikes in his official capacity, the State of Georgia, and the Georgia Department of Corrections. (Doc. No. 190). Per the instructions of Eleventh Circuit, Plaintiff has amended his complaint to restate his allegations, and also seeks to add several new Defendants and claims. (Doc. No. 198). Defendants have filed a Motion to Dismiss (Doc. No. 207), Plaintiff has filed a Response (Doc. No. 211), and Defendants have filed a Reply (Doc. No. 214). For the

following reasons, Defendants’ Motion is GRANTED in part and DENIED in part.
STATEMENT OF THE CASE
Plaintiff asserts that Defendant Sikes deprived him of medical care, and that Sikes, the State of Georgia, and the Georgia Department of Corrections are responsible for failing to provide him with reasonable accommodations for his disability and confinement to a wheelchair. (Doc. No. 38, pp. 3-4). In his Amended Complaint, Plaintiff sets forth Eighth Amendment claims based upon the alleged deprivation of his serious medical needs as a wheelchair-bound paraplegic, and upon the alleged deficient accommodation of his disability. (Doc. No. 198, p. 15). He also asserts that his Fourteenth Amendment right to equal protection of the laws has been violated, contending that “[w]heelchair-bound inmates ... are not provided the same privileges as similarly-situated able-bodied inmates.” (Id. at 17). Plaintiff additionally contends that Defendants have taken action against him in retaliation for his having filed complaints and lawsuits, and have interfered with his access to the courts, all in violation of his First Amendment rights. (Id. at 18-19). Plaintiff asserts that he has been excluded from receiving adequate medical care and accessible facilities and services by reason of his disability, in violation of Section 504 of the Rehabilitation Act. (Id. at 19-21). Finally, Plaintiff asserts violations of Title II of the ADA by acts of discrimination and retaliation. (Id. at 21-23). Plaintiff names nine new individuals and two new institutions as defendants.
Defendants allege that Plaintiff has failed to exhaust his administrative remedies as to certain of his claims as required by the Prison Litigation Reform Act (PLRA). (Doc. No. 208, pp. 5-8). Defendants further allege that the ADA and RA claims must be dismissed to the extent that Plaintiff asserts them against individuals who are not subject to liability under these Acts. (Id . at 8).
Defendants assert that the § 1983 claims against the Georgia Department of Corrections, Augusta State Medical Prison, and the Defendants named in their official capacity, must be dismissed as these are not
“persons” within the meaning of § 1983. (Id. at 9). Defendants further contend that Plaintiff’s First Amendment claims fail on the merits (Id. at 10-14), that
the § 1983 claims are barred by res judicata (Id. at 14-17), that the ADA claims must be dismissed for lack

of an underlying constitutional violation (Id. at 17-18), and that Plaintiff has failed to show a physical injury as required by the PLRA (Id. at 18-22). Finally, Defendants assert that they are protected by qualified immunity (Id. at 22-24), that Plaintiff cannot proceed on what is merely a respondeat superior theory of liability on his § 1983 claims (Id . at 24-28), that Plaintiff’s claims against certain Defendants are barred by the statute of limitations (Id. at 28-29), and that Plaintiff’s complaint should be dismissed for failure to follow a court order (Id. at 29-32).
STANDARD OF DETERMINATION
*2 Defendants have filed their motion pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. In support of three of their enumerations of error, however, Defendants submit exhibits requesting that the Court consider this evidence in determining these issues. Plaintiff requests that Defendants’ Motion, insofar as it pertains to the issues of exhaustion, actual injury resulting from the alleged access to courts violation, and res judicata, be addressed under the summary judgment standard of Rule 56.
FED.R.CIV.P. 12(b) provides: “If, on a motion ... to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.” Pursuant to Rule 56, a court must give the parties ten days notice that it is converting the moving parties’ motion to dismiss into a motion for summary judgment. Trustmark Ins. Co. v. ESLU, Inc., 299 F.3d 1265, 1267 (11th Cir.2002).
Upon review of the parties’ pleadings and documentation in support thereof, the Court converts Defendants’ Motion to Dismiss into a Motion for Summary Judgment, but only as it pertains to three issues: (1) whether Plaintiff exhausted his administrative remedies as required by the PLRA; (2) whether Plaintiff can show “actual injury” resulting from his access to courts claim; and (3) whether Plaintiff’s claims are barred by res judicata. Accordingly, the parties shall have twenty (20) days from the receipt of this Order to file any desired additional documents on these issues.
The remainder of Defendants’ enumerations of error are herein addressed under the 12(b)(6) standard. A motion to

dismiss filed pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure should not be granted “ ‘unless it appears beyond doubt that plaintiff can prove no set of facts which would entitle him to relief.’ “ Bradberry v. Pinellas County, 789 F.2d 1513, 1515 (11th Cir.1986) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957)); accord Martinez v. American Airlines, Inc., 74 F.3d 247, 248 (11th Cir.1996). In making this determination, a court must construe the complaint in a light most favorable to the plaintiff. Christopher v. Harbury, 536 U.S. 403, 406, 122 S.Ct. 2179, 2182, 153 L.Ed.2d 413 (2002). Furthermore, all facts alleged by the plaintiff must be accepted as true. Christopher, 536 U.S. at 406, 122 S.Ct. at 2182. When evaluating a motion to dismiss, the issue is not whether a plaintiff will ultimately prevail, but “whether the claimant is entitled to offer evidence to support the claims.” Little v. City of North Miami, 805 F.2d 962, 965 (11th Cir.1986). The threshold is “ ‘exceedingly low’ “ for a complaint to survive a motion to dismiss. Ancata v. Prison Health Services, Inc., 769 F.2d 700, 703 (11th Cir.1985) (quoting Quality Foods de Centro America, S.A. v. America Agribusiness Devel., 711 F.2d 989, 995 (11th Cir.1983)).
DISCUSSION AND CITATION TO AUTHORITY
I. Proper ADA and RA Defendants *3 Defendants contend that Plaintiff has brought claims against individual Defendants under the ADA and the RA, and that these claims must be dismissed because there is no individual liability under these acts. Plaintiff asserts that regardless of whether individual liability is actually available under the ADA and the RA, he has asserted no ADA or RA claims for damages against individual defendants.
Because Plaintiff asserts that his only ADA and RA claims for damages are against the institutions themselves, there is no issue in dispute here. Though Defendants correctly note that Plaintiff’s Amended Complaint could be clearer on this point, suffice it to say that only Plaintiff’s ADA and RA claims for damages against the institutions and claims for injunctive relief against the institutions and the Defendants in their official capacities are being pursued. Accordingly, to the extent Plaintiff’s claims can be read to state any ADA or RA

claims against any individual Defendants in their individual capacities, Defendants’ motion is GRANTED and these claims are DISMISSED.

individual Defendants in their official capacities for monetary damages, Defendants’ motion is GRANTED and these claims are DISMISSED.

II. Proper § 1983 Defendants Defendants contend that Plaintiff’s claims brought
pursuant to 42 U.S.C. § 1983 against the Georgia Department of Corrections, Augusta State Medical Prison, and Georgia State Prison must be dismissed as these Defendants are not “persons” amenable to suit within the meaning of the statute. Plaintiff asserts that there are no
§ 1983 claims brought against these Defendants, who are effectively the State or arms of the State, and that instead these claims are properly asserted only against the individual Defendants. Again, Plaintiff contends that only
claims for injunctive relief under § 1983 have been asserted against the individuals in their official capacities, and claims for damages are asserted against the individuals in only their individual capacities.
In enacting 42 U.S.C. § 1983, Congress did not intend to abrogate “well-established immunities or defenses” under the common law or the Eleventh Amendment.
Will v. Michigan Dep’t of State Police, 491 U.S. 58, 67, 109 S.Ct. 2304, 2310, 105 L.Ed.2d 45 (1989). Thus, as both parties have noted, states are not “persons” within
the meaning of § 1983. Id. at 64, 109 S.Ct. at 2308. Additionally, a lawsuit against a state official in his or her official capacity is no different from a suit against the state itself and such defendants are immune in that
capacity. Id. at 71, 109 S.Ct. at 2312. Because the State of Georgia would be the real party in interest in a suit against the individual Defendants for damages in their official capacities, the Eleventh Amendment prohibits
such claims. Free v. Granger, 887 F.2d 1552, 1557 (11th Cir.1989). However, “a state official in his or her official capacity, when sued for injunctive relief, would be
a person under § 1983 because ‘official-capacity actions for prospective relief are not treated as actions
against the State.’ “ Will, 491 U.S. at 71 n. 10, 109 S.Ct. at 2312.
*4 Accordingly, Plaintiff’s appropriate § 1983 relief is against the individual Defendants in their individual capacities for monetary damages and against them in their official capacities for injunctive relief. To the extent that
Plaintiff’s claims can be read to assert any § 1983 claims against the state Defendants, or against the

III. The ADA Claims and United States v. Georgia Defendants appear to contend that in light of the Supreme
Court’s decision in United States v. Georgia, 546 U.S. 151, 126 S.Ct. 877, 163 L.Ed.2d 650 (2006), Plaintiff’s ADA claims which are based on conduct that is not violative of the constitution must be dismissed. This is so, according to Defendants, because since the Supreme Court in United States v. Georgia held that Title II does validly abrogate state sovereign immunity for damages against the State for conduct that does violate the constitution, “implicitly, Title II does not validly abrogate Eleventh Amendment immunity where the claim is for conduct that does not violate the [constitution].” (Doc. No. 208, p. 18). Plaintiff asserts that this issue was actually left open by the Supreme Court’s decision in United States v. Georgia, (Doc. No. 211, p. 15-16).
In United States v. Georgia, the Supreme Court held that Title II of the ADA validly abrogates state sovereign immunity “insofar as [it] creates a private cause of action for damages against the States for conduct that actually
violates the Fourteenth Amendment....” 546 U.S. at ----, 126 S.Ct. at 882. The Court acknowledged the disagreement among Justices as to the scope of Congress’s “prophylactic” enforcement powers, or legislation that proscribes facially constitutional conduct with the intent of preventing unconstitutional conduct. Instead of commenting further on the issue of whether principles of sovereign immunity would allow facially constitutional conduct to form the basis of a Title II action though, the Court instructed the lower courts on remand to decide “insofar as [ ] misconduct violated Title II but did not violate the Fourteenth Amendment, whether Congress’s purported abrogation of sovereign immunity
as to that class of conduct is nevertheless valid.” 546 U.S. at ----, 126 S.Ct. at 882.
Clearly, it has been explicitly left to the lower courts to determine whether it is a valid abrogation of state sovereign immunity under Congress’s § 5 enforcement power to proscribe conduct that violates Title II of the ADA but does not independently violate the Constitution itself. Accordingly, to the extent that Defendants seek to assert that Plaintiff’s ADA claims are based on conduct which is not a proper abrogation of state sovereign immunity, the Court would grant Plaintiff’s request to brief this issue separately. Accordingly, Defendants are

granted leave to file an additional Motion to Dismiss on this issue should they so choose, and Plaintiff shall then have the opportunity to respond. Defendants’ Motion is DENIED as it pertains to this issue at this time.
IV. Physical Injury *5 Defendants assert that because Plaintiff alleges only an emotional and mental but not a physical injury, his complaint must be dismissed under the PLRA. Conversely, Plaintiff asserts that he has “clearly and repeatedly” alleged physical injury, and that regardless, the PLRA only requires that “in order to state a claim for mental or emotional injury, there must be a claim for an underlying physical injury. 42 U.S.C. § 1997e(e). It does not bar a claim for damages not premised on mental or emotional injury.... Likewise, it does not bar claims for injunctive and declaratory relief.” (Doc. No. 211, p. 17).
The Prison Litigation Reform Act provides in part that
No Federal civil action may be brought by a prisoner confined in a jail, prison, or other correctional facility, for mental or emotional injury suffered while in custody without a prior showing of physical injury.
42 U.S.C. § 1997e(e). The purpose of this statute is “to reduce the number of frivolous cases filed by imprisoned plaintiffs, who have little to lose and excessive amounts of free time with which to pursue their complaints,”
Napier v. Preslicka, 314 F.3d 528, 531 (11th Cir.2002) (citing Harris v. Garner, 216 F.3d 970, 976-79 (11th Cir.2000)). “Tracking the language of [this] statute, § 1997e(e) applies only to lawsuits involving (1) Federal civil actions (2) brought by a prisoner (3) for mental or emotional injury (4) suffered while in custody.” Id. at 532.
The Eleventh Circuit has yet to decide whether Section 1997e(e) precludes claims for nominal and
punitive damages along with compensatory damages. Boxer X v. Donald, 169 Fed. Appx. 555, 558-59, 558 n. 1 (11th Cir.2006). Nominal damages are appropriate in a
Section 1983 case if the plaintiff establishes a violation of a fundamental constitutional right, even if he cannot

prove actual injury sufficient to entitle him to
compensatory damages. Carey v. Piphus, 435 U.S. 247, 266, 98 S.Ct. 1042, 1053-1054, 55 L.Ed.2d 252 (1978). Punitive damages may be imposed under
Section 1983 with the specific purpose of deterring or punishing violations of constitutional rights. Id. at 257 n. 11, 1049. Although the Eleventh Circuit has yet to
decide whether Section 1997e(e) precludes a prisoner from seeking nominal or punitive damages, the Court of Appeals has noted that the Second, Third, Seventh, Ninth
and Tenth Circuits have concluded that Section 1997e(e) does not preclude a prisoner from seeking nominal damages, Boxer X v. Donald, 169 Fed. Appx. at 558-59, and that circuits elsewhere are split on the issue
of punitive damages under Section 1997e(e). Id . at 558 n. 1.
Defendants assert that Plaintiff has alleged no physical injury and thus his claims are barred. However, as Plaintiff notes, he has clearly claimed numerous physical injuries resulting from certain alleged actions or inactions of Defendants. Furthermore, the absence of a physical injury means only that Plaintiff cannot recover compensatory damages for any mental or emotional injury; it merely limits the nature of Plaintiff’s damages. Id. at 558. Plaintiff is not precluded from bringing claims for other types of monetary relief without a showing of physical injury. Id. Plaintiff is also not precluded from asserting claims for injunctive and declaratory relief.
Harris v. Garner, 190 F.3d 1279, 1288 (11th Cir.1999). Accordingly, that part of Defendants’ Motion seeking dismissal of Plaintiff’s claims based on the absence of physical injury is DENIED.
V. Qualified Immunity *6 Defendants assert that Plaintiff’s claims against the individual Defendants are barred by the doctrine of qualified immunity because they have violated no clearly established constitutional law. Plaintiff asserts that it is, in fact, clearly established that deliberate indifference to serious medical needs, including the deprivation of adequate assistance to those in wheelchairs, is a violation of the Eighth Amendment. Plaintiff further asserts that it is clearly established that arbitrary discrimination is a Fourteenth Amendment violation and that denial of access to courts and retaliation are First Amendment violations.
Qualified immunity protects government officials performing discretionary functions from suit in their individual capacities, so long as their conduct does not

violate “clearly established statutory or constitutional rights of which a reasonable person would have known.”
Gonzalez v. Reno, 325 F.3d 1228, 1233 (11th
Cir.2003) (quoting Hope v. Pelzer, 536 U.S. 730, 739, 122 S.Ct. 2508, 2515, 153 L.Ed.2d 666 (2002)). A government official must first prove that he was acting
within his discretionary authority. Id. at 1234. “A government official acts within his or her discretionary authority if objective circumstances compel the conclusion that challenged actions occurred in the performance of the official’s duties and within the scope
of this authority.” Hill v. DeKalb Reg’l Youth Det. Ctr., 40 F.3d 1176, 1185 n. 17 (11th Cir.1994). Once the government official has shown that he was acting within his discretionary authority, the burden shifts to the plaintiff to show that qualified immunity is not warranted.
Gonzalez, 325 F.3d at 1234.
The Supreme Court has established a two-part test to determine the applicability of qualified immunity. First, the court must determine whether plaintiff’s allegations, taken as true, establish a constitutional violation.
Hope, 536 U.S. at 736, 122 S.Ct. at 2513. If, under the plaintiff’s allegations, the defendants would have violated a constitutional right, the next step is to ask whether the right was one that was clearly established under the law.
Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151,
2156, 150 L.Ed.2d 272 (2001); Holloman ex rel. Holloman v. Harland, 370 F .3d 1252, 1264 (11th Cir.2004). “The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.”
Saucier, 533 U.S. at 202, 121 S.Ct. at 2156.
Defendants’ assertion of the qualified immunity defense must fail. Defendants’ Brief does not elaborate as to what particular claims or factual allegations they allege were not “clearly established,” but their Reply to Plaintiff’s Response asserts that:
The Plaintiff admits that he has received medical treatment (Doc. 208 ¶ 16) and he admits that he has litigated the two nonfrivolous prior cases (Doc. 208, Exhibits “D”-“l”) to judgment. These two issues are the cruxed [sic] of Plaintiff’s entire complaint. Every issue in Miller’s complaint stems from Defendants’ alleged failure to give him proper medical treatment and alleged

denial of his First Amendment rights. Miller admits that he received both while incarcerated at GSP and ASMP.
*7 Defendants appear to contend that Plaintiff’s allegations include admissions that he received proper medical treatment and that he has been able to litigate two prior cases and thus has not been denied access to the courts. Under Defendants’ theory, therefore, the allegations would not even establish a constitutional violation, much less one that would have been clearly established so as to place them on notice. This theory, however, is without merit.
Defendants refer to a portion of Plaintiff’s Amended Complaint2 wherein he details the treatment he has been prescribed by prison physicians:
To treat his condition, prison doctors have prescribed Miller physical therapy to avoid atrophy of his left leg; that he receive an orthopedic brace and shoe for his left leg; that he utilize leg supports for his wheelchair; and that he use urine catheters to avoid incontinence problems. He has periodically required spinal surgery to correct ongoing back problems. (Doc. No. 198, 1116). From this, Defendants conclude that “Plaintiff admits that he has received ... proper medical treatment ...” and thus that “there is no clearly established law addressing these facts that would give reasonable officials fair notice that their actions are violating Plaintiff’s constitutional rights.” (Doc. No. 214, p. 10). Regarding the First Amendment claims, Defendants assert that Plaintiff has litigated to judgment two prior cases, and thus he “admits” that he “received” his “First Amendment rights ... while incarcerated at GSP and ASMP.” (Doc. No. 214, p. 10). The Court certainly agrees that no clearly established law proscribes “proper medical treatment” under the Eighth Amendment, and that no precedent establishes a First Amendment violation where an inmate is not denied his access to the courts or admits being afforded his rights under the First Amendment. Defendants’ reasoning appears to be that Plaintiff admits that his rights were not violated, and that therefore the facts pled establish no constitutional violation and they are thus entitled to qualified immunity. Certainly, however, Defendants cannot have failed to notice that throughout his Amended Complaint, Plaintiff alleges facts that would establish constitutional violations. In Paragraph 16, Plaintiff does not “admit” to receiving proper medical treatment as Defendants allege. Instead, he describes the treatment that prison doctors have

prescribed, and in later paragraphs goes on to allege that this prescribed treatment has been denied by GSP and its officials, an allegation which, taken as true, could establish an Eighth Amendment violation. See Doc. No. 198, ¶ 33 (alleging the denial of physical therapy services and resulting atrophy and pain), ¶ 34 (alleging confiscation of prescribed leg brace and supports), ¶ 35 (alleging regular denial of urine catheters and resulting urinary and kidney infections). Furthermore, Plaintiff has alleged facts that, taken as true, would establish a violation of the First Amendment. Plaintiff alleges confiscation of his legal material, delays in the transmission of legal mail, and denial of access to the law library, and asserts that these actions have interfered with his ability to remedy his allegedly unconstitutional prison conditions and to file a successful habeas petition. (Doc. No. 198, ¶¶ 54, 55, 77, Doc. No. 211, p. 11). The fact that Plaintiff has litigated prior cases is certainly not so dispositive as to warrant dismissal of the claim. Clearly, if all Plaintiff’s complaint did was “admit” that he was afforded his constitutional rights, Defendants would be entitled to qualified immunity and there would be nothing left to discuss. Surely, however, Defendants do not seriously contend that this is the case, as there are almost twenty pages of factual allegations in Plaintiff’s Amended Complaint wherein he asserts numerous violations of his rights. *8 Plaintiff alleges that Defendants are responsible for failing to provide him with adequate medical care and accommodation for his disability. It has been clearly established since at least 1976 that the government has an obligation to provide medical care to the incarcerated.
Estelle v. Gamble, 429 U.S. 97, 103, 97 S.Ct. 285, 290, 50 L.Ed.2d 251 (1976). For the past thirty years, then, prison officials have been on notice that denying or delaying access to medical care and intentionally interfering with prescribed treatment violates the Eighth
Amendment. Id. at 104-105, 97 S.Ct. at 291. See also
Young v. City of Augusta, Ga., 59 F.3d 1160, 1169 n. 17 (11th Cir.1995) ( “The Eighth Amendment prohibits state caretakers from intentionally delaying medical care or knowingly interfering with treatment once prescribed.”). Indeed, in the context of qualified immunity analysis, the Eleventh Circuit has explicitly held that “deliberate indifference to serious medical needs is a violation of clearly established law.” Kimbell ex. rel Liddell v. Clayton County, Ga., 170 Fed. Appx. 663, 664
(11th Cir.2006) (citing Behrens v. Pelletier, 516 U.S. 299, 313, 116 S.Ct. 834, 842, 133 L.Ed.2d 773 (1996)). Furthermore, at the time of the events in question, it was clearly established law that prisoners retain First
Amendment rights. Thornburgh v. Abbott, 490 U.S. 401, 407, 109 S.Ct. 1874, 1878, 104 L.Ed.2d 459 (1989).

Prisoners have a constitutional right to “adequate, effective and meaningful” access to the courts, including
access to law libraries and supplies. Bounds v. Smith, 430 U.S. 817, 822, 97 S.Ct. 1491, 1495, 52 L.Ed.2d 72 (1977).
The violation of these standards is precisely what Plaintiff alleges. Plaintiff’s factual allegations, when taken as true, establish constitutional violations under clearly established law that would have been clear to a reasonable officer at the time and under the circumstances in question. Accordingly, Defendants are not entitled to the defense of qualified immunity and their Motion is DENIED to that extent.
VI. Respondeat Superior Defendants assert that Plaintiff’s claims are based solely on an impermissible respondeat superior theory of liability, because Plaintiff fails to allege that Defendants either personally participated in the alleged violations or that there is any causal connection between Defendants and the alleged violations. Conversely, Plaintiff alleges that he does claim that Defendants were aware of his complaints and failed to correct the alleged deprivations.
In section 1983 actions, liability must be based on something more than a theory of respondeat superior. Braddy v. Fla. Dep’t of Labor and Employment Sec., 133 F.3d 797, 801 (11th Cir.1998). A supervisor may be liable only through personal participation in the alleged constitutional violation or when there is a causal connection between the supervisor’s conduct and the alleged violations. Id. at 802. A “causal connection” may be established when the supervisor is aware of a “history of widespread abuse” and fails to correct the alleged violations. Id. Constitutional “deprivations that constitute widespread abuse sufficient to notify the supervis[or] must be obvious, flagrant, rampant, and of continued duration, rather than isolated occurrences.” Id. Having actual notice of the alleged unconstitutional practices combined with a refusal to investigate or respond comprises such a causal connection.
*9 Construing Plaintiff’s claims in a light most favorable to him, it is clear that he alleges a causal connection between the individual Defendants’ conduct and the alleged constitutional violations. Specifically, Plaintiff alleges a history of deprivations that, if true, would serve to put Defendants on notice of the need to correct the violations. Accordingly, Plaintiff’s claims survive Defendants’ Motion to Dismiss on this point and to the extent it seeks dismissal on respondeat superior grounds,

the Motion is DENIED.
VII. Statute of Limitations Defendants allege that Plaintiff’s claims against Augusta State Medical Prison and Defendants Walker, Brown, Donald, and Paris are barred by the applicable two-year statute of limitations. Defendants assert that because the events giving rise to Plaintiff’s claims against these Defendants occurred in 1996, eight years before Plaintiff named these Defendants, the claims fall outside the two-year period and must be dismissed. Plaintiff asserts that the statute of limitations has not run on these claims because he actually alleges ongoing violations which began in 1989 and continue to the present day.
Plaintiff filed this cause of action pursuant to 42 U.S.C.A. § 1983. Although § 1983 does not provide a specific statute of limitations, courts are to apply the most appropriate and analogous state statute of limitations in
these type of civil rights actions. Burnett v. Grattan, 468 U.S. 42, 49, 104 S.Ct. 2924, 2929, 82 L.Ed.2d 36 (1984). The appropriate statute of limitations for this action, as determined by state law, is two years.
Harding v. Straub, 490 U.S. 536, 538, 109 S.Ct. 1998, 2000, 104 L Ed.2d 582 (1989); O.C.GA. § 9-3-33. Determination of when the limitations period begins to
run, however, is a governed by federal law. Rozar v. Mullis, 85 F.3d 556, 561 (11th Cir.1996). Generally, a cause of action accrues when the plaintiff knows or should know “(1) that they have suffered the injury that forms the basis of their complaint and (2) who has inflicted the injury.” Chappell v. Rich 340 F.3d 1279, 1283 (11th Cir.2003).
Under these guidelines, Plaintiff’s claims which arose as early as 1989 would appear to be outside of the limitations period. However, Plaintiff’s claims are in the nature of “continuing wrongs.” Neel v. Rehberg, 577 F.2d 262, 264 (5th Cir.1978) (refusal to provide medical treatment, shower, telephone, and visiting privileges to prisoner constitutes continuing wrong). Where a continuing wrong is involved, “the cause of action accrues, and the limitation period begins to run, at the time the tortious conduct ceases.” Donaldson v. O’Connor, 493 F.2d 507, 529 (5th Cir.1974). Plaintiff’s allegations, therefore, which pertain to his alleged mistreatment at the state prisons and which allegedly began as early as 1989 and continue even to “present day”, are not time-barred or limited by the statute of limitations. Furthermore, Plaintiff seems to assert claims

against Augusta State Medical Prison that arose in 2005 and 2006, which would be within the limitations period. Plaintiff should not prove damages for any conduct which arose more than two years prior to his bringing the particular claim, unless the conduct is in the nature of a continuing violation. To the extent that Defendants seek dismissal of Plaintiff’s claims based on the statute of limitations, their Motion is DENIED.
VIII. Court Order *10 Defendants move for dismissal on the basis of Federal Rule of Civil Procedure 41(b), asserting that Plaintiff has failed to comply with the Eleventh Circuit’s judgment dated May 17, 2006. Defendants assert several ways in which Plaintiff allegedly failed to comply with the Eleventh Circuit’s instructions: (1) “fails to identify what specific conduct he alleges violates the Eighth Amendment and is [also] actionable under 42 U.S.C. § 1983 ”; (2) “fails to identify what specific conduct by Defendants, if any, allegedly violates Title II of the ADA but does not violate the Eighth and Fourteenth Amendments”; and (3) fails to state what state actor committed which act that allegedly violated his constitutional rights.” (Doc. No. 208, pp. 30-32).
Plaintiff contends that a proper reading of the Amended Complaint reveals that he did comply with the Eleventh Circuit’s instructions. First, Plaintiff asserts that he brings claims for violation of the Eighth Amendment pursuant to
42 U.S.C. § 1983. Second, Plaintiff contends that his constitutional claims are incorporated into his ADA claims, to which independent conduct was also added, and that thus the conduct which is allegedly unconstitutional is also an alleged violation of the ADA.
The May 17, 2006 judgment of the Eleventh Circuit directed Plaintiff to:
specify on a claim-by-claim basis and in separate counts (1) the specific conduct he alleges violates the Eighth Amendment and is actionable under 42 U.S.C. § 1983; (2) to what extent the alleged conduct underlying Miller’s constitutional claims also violates Title II of the ADA; (3) what specific conduct allegedly violates Title II of the ADA but does not violate the Eighth Amendment; (4)

as to his Eighth Amendment claims
under § 1983, whether the defendant Warden Sikes is sued individually or in an official capacity or both; and (5) as to his ADA claims, whether the clam is brought against defendant Sikes in his official capacity, the defendant State of Georgia, and/or the defendant Department of Corrections.
(Doc. No, 190, pp. 4-5). A fair reading of the Amended Complaint persuades this Court that Plaintiff has complied with these instructions.
Defendants’ first enumeration of error as to how Plaintiff failed to comply with the instruction confuses the Eleventh Circuit’s directions. Defendants contend that Plaintiff “fails to identify what specific conduct he alleges violates the Eighth Amendment and is [also] actionable
under 42 U.S.C. § 1983 as ordered in the Court’s Order of May 17, 2006.” (Doc. No. 208, p. 30). Defendants, however, misinterpret what the Eleventh Circuit required of Plaintiff. The first three instructions are aimed at sorting out what specific conduct forms the
basis of Plaintiff’s claims under § 1983 as opposed to what conduct forms the basis of his claims under the ADA. As Plaintiff correctly asserts, he “brought claims of violations of the First, Eighth, and Fourteenth
Amendments pursuant to 42 U.S.C. § 1983, which is the statute that provides the cause of action for violations of constitutional rights by persons acting under color of state law.” (Doc. No. 211, p. 24). Thus, the point is not to identify conduct which violates a constitutional right
and/or § 1983, because that conduct will be one in the same. The point, rather, is to identify what conduct
violates the constitution, and thus § 1983, what conduct violates the ADA, and whether any of the same
conduct allegedly violates both § 1983 and the ADA.
*11 Pursuant to these instructions, Plaintiff has identified the conduct that he alleges violates the Eighth
Amendment and is therefore actionable under § 1983. See Doc. No. 198, pp. 14-16). Plaintiff has also identified that all of his constitutional claims are incorporated into his ADA and RA claims. See Doc. No. 198, pp. 19-22. Thus, according to Plaintiff, all of the conduct which
allegedly violates the Eighth Amendment under § 1983 also forms the basis of the ADA and RA claims. Finally, Plaintiff identified additional conduct apart from

his § 1983 claims that allegedly violates the ADA or RA. See Doc. No. 198, pp. 20, 22. It is now sufficiently clear which conduct forms the basis of which claim, and Defendants’ contention to the contrary is without merit.
Defendants also contend that Plaintiff “fails to state what state actor committed which act that allegedly violated his constitutional rights as required by the court.” (Doc. No. 208, p. 31). Upon review of the Eleventh Circuit’s judgment, the requirement to which Defendants refer cannot be identified. The remaining instructions of the Eleventh Circuit have been followed by Plaintiff. Plaintiff identified that “[a]ll of the individual defendants (the
‘ Section 1983 Defendants’) are sued in both their official and individual capacities, except for the individuals who are former GDOC and prison officials, who are sued only in their individual capacities.” (Doc. No. 198, p. 4). Though Plaintiff could certainly have more clearly answered this inquiry, apparently Defendant Sikes, being a former GDOC and prison official, is sued in his individual capacity only. Furthermore, as to his ADA claims, Plaintiff refers to the “ADA Defendants” as the “GDOC, GSP and ASMP (together with the official-capacity Defendants).” Thus, from this it can be gleaned that only these institutional or entity Defendants, and not Defendant Sikes in any capacity, are the parties against whom the ADA claim is brought. Accordingly, the pending Eighth Amendment and ADA claims against Sikes in his official capacity are DISMISSED. Beyond that, to the extent Defendants move for dismissal under Rule 41(b), their Motion is DENIED.
IX. Service of Amended Complaint A prisoner proceeding in a civil action against officers or employees of government entities must comply with the
mandates of the Prison Litigation Reform Act, 28 U.S.C. §§ 1915 & 1915A. 28 U.S .C. § 1915A requires a district court to screen the complaint for cognizable claims before or as soon as possible after docketing. The court must dismiss the complaint or any portion of the complaint that is frivolous, malicious, fails to state a claim upon which relief may be granted, or seeks monetary damages from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1) and (2).
In Mitchell v. Farcass, 112 F.3d 1483, 1490 (11th Cir.1997), the Eleventh Circuit interpreted the language
contained in 28 U.S.C. § 1915(e)(2)(B)(ii), which is nearly identical to that contained in the screening
provisions at § 1915A(b). As the language of §

1915(e)(2)(B)(ii) closely tracks the language of Federal Rule of Civil Procedure 12(b)(6), the court held that the same standards for determining whether to dismiss for failure to state a claim under Rule 12(b)(6) should be
applied to prisoner complaints filed pursuant to §
1915(e)(2)(B)(ii). Mitchell, 112 F.3d at 1490. The court may dismiss a complaint for failure to state a claim only where it appears beyond a doubt that a pro se litigant can prove no set of facts that would entitle him to relief.
Hughes v. Rowe, 449 U.S. 5, 10, 101 S.Ct. 173, 176,
66 L.Ed.2d 163, 169-70 (1980); Mitchell, 112 F.3d at 1490.
*12 As previously discussed, Plaintiff’s Amended Complaint alleges Eighth Amendment claims based upon the alleged deprivation of his serious medical needs as a wheelchair-bound paraplegic, and upon the alleged deficient accommodation of his disability. Plaintiff also states a cognizable claim that his Fourteenth Amendment right to equal protection of the laws has been violated, contending that prison officials have denied him privileges because of his handicap. Plaintiff additionally states a claim that Defendants have taken action against him in retaliation for his having filed complaints and lawsuits, and have interfered with his access to the courts, all in violation of his First Amendment rights.
Plaintiff states a cognizable claim that he has been denied services and activities by reason of his disability in violation of Section 504 of the Rehabilitation Act, but only to the extent that he challenges conduct other than the denial of medical treatment. This is because the Rehabilitation Act requires that a person be denied a program or activity which they are “otherwise qualified” to receive, and because the Rehabilitation Act is intended to ensure that handicapped individuals are not denied access to programs provided to non-handicapped persons, courts hold that the “otherwise qualified” criteria cannot be meaningfully applied to a medical treatment decision. Schiavo ex rel Schindler v. Schiavo, 358 F.Supp.2d 1161,
1166 (M.D.Fla.2005). See also United States v. University Hosp., State University of New York at Stoneybrook, 729 F.2d 144, 156 (2d Cir.1984) (“section 504 prohibits discrimination against a handicapped individual only where the individual’s handicap is unrelated to, and thus an improper consideration of, the services in question ... where medical treatment is at issue, it is typically the handicap itself that gives rise to, or at least contributes to, the need for services.”) Accordingly, Plaintiff fails to state an RA claim based on the denial of medical treatment. He does, however, state an RA claim based on the alleged denial of the other
Footnotes

provisions and activities. (Doc. No. 198, pp. 20-21).
Finally, Plaintiff states a claim for violations of Title II of the ADA by acts of discrimination and retaliation. (Id. at 21-23). As previously discussed, the parties shall have a future opportunity to address whether Title II exceeds Congress’s enforcement power, but Plaintiff’s allegations themselves are sufficient to state an ADA claim.
Plaintiff’s Amended Complaint, when viewed in a light most favorable to him, arguably states claims for relief pursuant to 42 U .S.C. § 1983, the ADA, and the RA, against the named Defendants. Counsel for the existing Defendants shall apprise the Court within twenty (20) days as to whether they will accept service on behalf of Defendants named in Plaintiff’s Amended Complaint, or whether service by the United States Marshal upon these individuals shall be necessary.
CONCLUSION
*13 Based on the foregoing, Defendants’ Motion to Dismiss is GRANTED in part and DENIED in part. To the extent that Plaintiff asserts ADA or RA claims against the individual Defendants in their individual capacities, or
§ 1983 claims for damages against the state Defendants or the individual Defendants in their official capacities, Defendants’ Motion is GRANTED and these claims are DISMISSED. In all other respects, Defendants’ Motion is DENIED.
The Court hereby converts the remainder of Defendants’ Motion to Dismiss into a Motion for Summary Judgment as it pertains to three issues: (1) whether Plaintiff exhausted his administrative remedies as required by the PLRA; (2) whether Plaintiff can show “actual injury” resulting from his access to courts claim; and (3) whether Plaintiff’s claims are barred by res judicata. The parties shall have twenty (20) days from the receipt of this Order to file any desired additional documents on these issues.
So ORDERED.
All Citations
Not Reported in F.Supp.2d, 2007 WL 2164534

1

Plaintiff’s original complaint stated claims against Ronald King and Wayne Garner, alleging the violation of his due

process and Eighth Amendment rights. (Doc. No. 2). Plaintiff subsequently amended his complaint to include

deliberate indifference and retaliation claims against Former GSP Warden Johnny Sikes, and a claim under Title II of

the Americans with Disabilities Act, 42 U.S.C. § 12131 (“ADA”). (Doc. No. 23). On August 4, 1999, Defendants filed a

Motion for Summary Judgment, and on February 25, 2000, the Court granted summary judgment to Defendants on the

deliberate indifference claim against Sikes and the due process claim against Garner. (Doc. No. 94). Defendants then

filed a supplemental Motion for Summary Judgment, and on January 29, 2002, the Court granted summary judgment

to King, the State of Georgia, and the Georgia Department of Corrections on Plaintiff’s ADA claims. (Doc. No. 135). A

jury trial was held on the remaining claims of retaliation and due process violations against Defendant King. The jury

returned a verdict in favor of Defendant King (Doc. No. 156), and Plaintiff’s Motion for a New Trial and Motion for

Judgment as a Matter of Law were denied on June 6, 2002. (Doc. No. 168). Plaintiff appealed the Court’s June 6, 2002

Order, and on May 17, 2006, the Eleventh Circuit affirmed in part, and vacated and remanded in part as follows: (1)

vacated this Court’s February 25, 2000 Order to the extent that it granted summary judgment on Plaintiff’s Eighth

Amendment claims against Defendant Sikes individually and in his official capacity; (2) vacated this Court’s January

29, 2002 Order to the extent that it granted summary judgment on Plaintiff’s ADA claims against Defendant Sikes in his

official capacity, the State of Georgia, and the Georgia Department of Corrections; and (3) remanded the case to this

Court with instructions to permit Plaintiff to amend his complaint and for further proceedings consistent with the United

States Supreme Court’s decision in United States v. Georgia, 546 U.S. 151, 126 S.Ct. 877, 163 L.Ed.2d 650 (2006).

2

Defendants cite “Doc. 208 ¶ 16.” However, Document 208 is actually their own Brief in Support of their Motion to

Dismiss, and contains no paragraph numbers, The Court presumes that Defendants mean to refer to Paragraph 16 of

Plaintiff’s Amended Complaint, Document Number 198.

 
 O R I G I NAL Case 6:98-cv-00109-JEG Document 198 Filed 11/20/06 Page 1 of 29

IN THE UNITED STATES DISTRICT COURT U. "'I .

FOR THE SOUTHERN DISTRICT OF GEORGI A

STATESBORO DIVISION

1[I PI-

9

TRACY ANTHONY MILLER,

Plaintiff,

vs .

HUGH SMITH, Warden, Georgia State Prison; STEVE ROBERTS, Deputy Warden for Security, Georgia State Prison, JOHNNY SIKES, former Warden, Georgia State Prison; CAROLYN MAILLOUX, M.D., Medical Director, Georgia State Prison; LISA WATERS JOHNSON, R .N., Health Administrator , Georgia State Prison; VICTOR L . WALKER, Warden, Augusta State Medical P rison, DENNIS BROWN, Deputy Warden for Security, Augusta State Medical Prison, WAYNE GARNER, former Commissioner of the Department of Corrections , JAMES DONALD, current Commissioner of the Department of Corrections , JOSEPH PARIS, M .D ., Medical Director, Dept. of Corrections , GEORGIA STATE PRISON, AUGUSTA STATE MEDICAL PRISON, and the GEORGIA DEPARTMENT OF CORRECTIONS ,

: CIVIL ACTION : FILE NO . CV 6 :98-109-JEG

Defendants .

AMENDED COMPLAINT

This is a lawsuit seeking declaratory relief, injunctive relief and damages for

Case 6:98-cv-00109-JEG Document 198 Filed 11/20/06 Page 2 of 29

the Defendants' ongoing violation of Tracy Miller' s First, Eighth and Fourteenth Amendment rights, and his federal statutory rights under the Rehabilitation Act, 29 U .S .C . § 701 et seq., and the Americans with Disabilities Act ("ADA"), and Title II of the Americans with Disabilities Act of 1990 ("ADA"), 42 U .S.C . § 12131 et seq.
The Amended Complaint alleges ADA violations that amount to direct constitutional violations under the First , Eighth and Fourteenth Amendments , as well as violations that are prohibited under the ADA and are prophylactic protections of constitutional rights. Miller seeks proper treatment of his disability of paraplegia, a prison setting that appropriately accommodates his disability, an injunction against prison officials ' retaliation against him for attempting to enforce his constitutional and statutory rights, and, given the long history of this litigation, during which the Department of Corrections has failed to take remedial action , Miller seeks compensatory and punitive damages and atto rney' s fees and the costs of this litigation, in an amount to be proven to the Court .
JURISDICTION, VENUE AND EXHAUSTION 1 . This action arises under the authority vested in this Court by virtue of 42
U.S.C. § 1983, 29 U .S .C. § 701 etseq., 42 U.S.C. § 12131 etseq., 28 U.S.C . § 1331 , and § 28 U .S.C. § 1343 . Venue is proper in this Cou rt pursuant to 28 U.S.C. § 1391 because the Plaintiff is presently imp risoned at Georgia

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State Prison in Reidsville , Tattnall County, Georgia . 2. Declaratory relief is autho rized by 28 U.S .C . § 2201 and Rule 57 of the
Federal Rules of Civil Procedure . Injunctive relief is autho rized by 28 U.S .C. § 2202 and Rule 65 of the Federal Rules of Civil Procedure . 3 . Plaintiff has exhausted his administrative remedies pursuant to 42 U.S .C . § 1997e(a) .
PARTIES 4. Plaintiff Tracy Miller, a wheelchair-bound paraplegic, is serving a lif e
sentence in the Georgia state prison system . 5 . Defendant Georgia State Prison ("GSP") in Reidsville (Tattnall County),
Georgia is a state prison facility within the Defendant Georgia Department of Corrections ("GDOC") . 6. Defendant Hugh Smith is the current Warden of GSP, and Defendant Steve Roberts is the Deputy Warden for Security at GSP . Defendant Johnny Sikes is a former Warden at GSP, and Smith's predecessor . 7. Defendant Dr. Carolyn Mailloux is Medical Director of GSP, and Defendant Lisa Waters Johnson is a registered nurse who serves as Heath Administrator at GSP. 8 . Defendant Augusta State Medical Prison ("ASMP") in Grovetow n

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(Richmond County), Georgia is a medical prison facility within the GDOC . Defendant Victor Walker is the Warden of ASMP, and Defendant Dennis Brown is the Deputy Warden for Security at ASMP . 9. Defendant James Donald is the current Commissioner of the Department of Corrections. Defendant Wayne Garner is the former Commissioner of the Department of Corrections . Defendant Dr. Joseph Paris is Medical Director for GDOC . 10. All of the individual defendants (the "Section 1983 Defendants") are sued in both their official and individual capacities , except for the individuals who are former GDOC and prison officials, who are sued only in their individual capacities . The individuals sued in their official capacities (the "Injunctive Relief Defendants ") may be served through the Attorney General of the State of Georgia . 11 . At all relevant times , the Section 1983 Defendants acted under color of state law and within the scope of their employment . 12 . The defendant entities , GDOC, GSP and ASMP (together with the officialcapacity Defendants , the "ADA Defendants"), are all public entities within the meaning of 42 U.S.C. § 12131, and also receive federal funds within the meaning of 29 U.S .C. § 794.

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FACTUAL ALLEGATIONS MILLER'S CONDITION
13 . Tracy Anthony Miller has been serving a life sentence in the Georgia Prison System since 1989, and at various times both before and since this suit was filed, has been housed at ASMP and GSP . He is presently housed in Kbuilding of GSP, and is now the only paraplegic inmate housed there .
14. As a result of a shotgun wound that injured his spinal cord and left buckshot lodged near his spine, Miller suffers from complete paralysis in his right lower extremity, partial paralysis in his left leg, and neurogenic bladder, as well as significant damage to his colon.
15 . Miller's injuries have resulted in, among other things, back pain, urinary incontinence, an unstable left leg and knee, atrophy and ulcers in his right leg, and swollen knees and legs, bed sores as a result of being in his wheelchair for long periods of time .
16. To treat his condition, prison doctors have prescribed Miller physical therapy to avoid atrophy of his left leg ; that he receive an orthopedic brace and shoe for his left leg; that he utilize leg supports for his wheelchair ; and that he use urine catheters to avoid incontinence problems . He has periodically require d

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spinal surgery to correct ongoing back problems . 17. Although an orthopedic brace might permit Miller to use his left leg to move
short distances without a wheelchair, prison doctors have indicated that it is unlikely he will ever be able to do entirely without a wheelchair .
CONDITIONS AT GEORGIA STATE PRISO N 18. GSP houses disabled inmates in two places : the infirmary (which is air-
conditioned) and K-building (which is not) . Miller was moved from the infirmary to K-building as a result of disciplinary infractions, and remains housed in K-building. 19. As a general matter, GSP is not designed for disabled inmates . Common buildings and spaces such as the chapel and library either cannot be entered or traversed by persons in wheelchairs without assistance, or they do not have facilities in them (including toilets) that accommodate persons in wheelchairs, effectively preventing their use by such persons . 20. There is no physical therapist at GSP, and there is no van at the facility that may be used to safely transport wheelchair-bound inmates for consults, which are typically at ASMP . Miller has fallen from his seat and suffered injury as a result of being transported in a non-accommodating van . 21 . K-building in particular is not equipped to handle disabled inmates, s o

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disabled inmates housed there must rely on assistance to go about daily activities . However, non-medical staff does not assist disabled inmates except to bring them in and out of the cells, and there are no medical staff stationed in K-building. Thus, K-building is not accommodating to prisoners such as Miller, who are confined to a wheelchair . 22. For instance, prison officials acknowledge that the cells in K-building are not large enough to accommodate both a bed and a wheelchair, so that the wheelchair can be maneuvered around the cell, and accordingly, prison policy is purportedly to remove the beds from the cells during the day . 23 . However, in fact, the beds are not removed from the cells according to this purported policy. Accordingly, wheelchair-bound inmates are unable to maneuver their wheelchairs around the cell, for instance, to use the facilities in the cell, or look out the window . 24. The cells, showers and toilets are not fully and safely handicapped-accessible . To the extent the facilities are retrofitted with bars or other accommodations to allow transfer from chair to bed, toilet or shower, they are inadequate, unsafe, or block access to other facilities . Miller has frequently been left to sit in his own urine and feces, and unable to take a shower, because he did not have assistance in using the toilet and shower facilities . At other times ,

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Miller has fallen from his wheelchair due to the lack of assistance in the nonaccommodating cells. 25 . Alternatively, rather than independently attempting to use the shower, the inmate must be taken to the infirmary to be bathed . However, prison employees either provide such assistance only infrequently and at odd hours, or do not provide it at all . 26. Inmates at GSP may be placed in disciplinary segregation, or in more severe isolation . However, wheelchair-bound inmates are only placed in isolation units in K-building, even if they are classified for segregation, because GSP cannot accommodate inmates in segregation housing . 27. The law library available to inmates in segregation or isolation is separate from the main law library, and is very small, such that inmates in wheelchairs cannot fully access the law library facilities . 28. According to prison policy, inmates in isolation are to be allowed an hour of physical activity three times a week, and to be removed from isolation once every thirty days, and receive privileges such as yard call and gym call during this time period. 29. However, because the general population prison facilities are not accessible to those in wheelchairs and the prison does not provide assistance to disable d

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inmates to access these privileges, disabled inmates are denied the privileges that are allowed able-bodied inmates in isolation, and in some cases are not even removed from isolation as provided by the policy . 30. Alternatively, if such privileges are provided, the disabled inmates are simply placed in the general population without assistance or protection, where they are susceptible to attack by able-bodied inmates . 31 . Miller has complained about these conditions to GSP officials numerous times in grievances and complaints . The Warden and Deputy Warden for Security of GSP, the former Warden (when he was employed at GSP), and Dr. Mailloux all received or were made aware of Miller's complaints and grievances, and denied Miller relief .
MEDICAL TREATMENT AT GSP 32. In addition to its failure to accommodate disabilities generally, GSP has not
provided Miller with the treatment prescribed by prison doctors . 33 . Only minimal physical therapy that can be performed by Miller in his cell is
available to him ; there is no physical therapist at GSP, and there is no appropriate means of transporting him to ASMP where such physical therapy might be provided . As a result, his left leg continues to atrophy, and he suffers continued back pain .
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34. Although a leg brace and leg supports were initially provided to Miller, they were confiscated for disciplinary reasons . Miller has not been provided an alternative means of either supporting his legs while he sits in his wheelchair, or supporting his weight on his left leg in order to move from his chair to, for instance, a bed or toilet, and back . He suffers bed sores as a result of being confined to his wheelchair for long periods of time .
35 . Miller is not provided with urine catheters on a regular basis . As a result, he suffers from frequent urinary and kidney infections .
36. Miller has requested diapers to handle bowel incontinence on numerous occasions, but such requests have been refused . As a result he has accidents resulting in his sitting in his own bodily waste until he receives assistance .
37. Miller has requested further neurosurgical evaluation to correct ongoing back problems and pain, which has been repeatedly denied.
38 . Miller has complained about his lack of appropriate treatment numerous times in grievances and complaints . The Warden and Deputy Warden for Security of GSP, the former Warden (when he was employed at GSP), Dr. Paris, Dr. Mailloux, and Lisa Waters Johnson all received or were made aware o f Miller's complaints and grievances, and denied Miller relief .
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CONDITIONS AT ASMP 39. ASMP is primarily intended to be an acute care facility for the Georgia
Department of Corrections . It is not significantly more accommodating for wheelchair-bound inmates . 40. Inmates at ASMP are housed in units of twenty inmates, with insufficient staff to allow assistance of disabled inmates . 41 . Although the cells at ASMP are somewhat larger than at GSP, they are still of inadequate size to allow wheelchairs to maneuver around the cell . 42. As at GSP, prison staff at ASMP do not assist inmates in everyday activities such as using showers or toilets . 43 . Thus, during the times when Miller has been housed at ASMP, as at GSP, he has similarly been has been forced to sit in his own waste, and unable to shower, because he has not received proper assistance in using the facilities . 44. Miller complained about these conditions to ASMP officials numerous times in grievances and complaints . The Warden and Deputy Warden for Security of ASMP all received these complaints and grievances or were made aware of them, and denied Miller relief.
MEDICAL TREATMENT AT ASM P 45 . ASMP, in spite of its name, has not provided significantly better treatment of
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Miller's condition during the times he has been housed there . 46 . As at GSP, at ASMP, Miller is denied use of braces and other assistive
devices, and is also denied assistance in place of such devices . 47. Miller also has been denied diapers and appropriate supplies of catheters at
ASMP . 48. ASMP similarly failed to provide Miller a neurosurgical consult when he was
housed there. 49. Miller complained about these conditions to ASMP officials numerous times
in grievances and complaints . The Warden and Deputy Warden for Security of ASMP all received these complaints and grievances or were made aware of them, and denied Miller relief.
TRANSFERS BETWEEN FACILITIE S 50 . Although Miller is not presently housed at ASMP, he has frequently been
transferred between GSP and ASMP . 51 . For instance, prior to filing this lawsuit, and while Miller was filing
grievances about his conditions and care, he was moved to GSP on or about May 16, 1996 ; from there ASMP on or about September 5, 1996 ; and back GSP on or about September 16, 1996 . Thus, Miller was transferred three times in four months, including twice within less than two weeks .
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52. Further, in the last two years, and while this case was pending on appeal, Miller was frequently transferred around the system, including from GSP to Men's State Prison on or about September 14, 2004 ; from Men's State Prison to GSP on or about June 20, 2005 ; and from GSP to ASMP on or about June 27, 2006 . After being transferred at some point out of ASMP, Miller was transferred back to GSP on or about August 11, 2005 ; he was then transferred to ASMP a week later, on or about August 18, 2005, and finally was transferred from ASMP back to GSP on or about February 24, 2006 . In all, Miller has been transferred at least six times in the past two years . INTERFERENCE WITH MILLER'S REMEDIE S
53 . Prison officials have interfered in a number of ways with Miller's ability to pursue relief from the unconstitutional and unlawful conditions of his confinement .
54. For instance, the frequent transfers described in paragraphs 50-52 result in loss or temporary withholding of property, including legal materials, as well as interruption of mail . Additionally, once Miller is transferred, the State asserts in legal papers that all of Miller's claims regarding the prison from which he was just transferred are mooted by the transfer. By transferring Miller back and forth frequently, his attempts to seek injunctive relief ar e
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thwarted . 55 . Even outside of transfers, prison officials have interfered with Miller' s
attempting to pursue his and other similarly-situated prisoners' legal remedies, including in the following ways : withholding Miller's property, including legal materials, and failing to return it reasonably promptly, interfering with Miller's ability to draft pleadings and briefs and provide information to counsel ; unreasonable delays in mail, particularly including legal mail reaching either Miller or his counsel, if it was received at all ; on information and belief, unauthorized opening and review (outside Miller's presence) of privileged legal mail clearly marked as such ; and being forbidden from or told not to assist other inmates in filing grievances . 56 . Prison officials have often made reference to Miller's multiple grievances and lawsuits, as well as to his purported inability to file any more lawsuits (even those that allege imminent danger), in conjunction with or contemporaneously with disciplining Miller, transferring him, or responding to his grievances and complaints .
CLAIMS FOR RELIEF SEC. 1983: EIGHTH AMENDMEN T 57 . The allegations set forth in the foregoing paragraphs 13 through 49 ar e
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incorporated herein by reference . 58. Plaintiff Miller enjoys an Eighth Amendment right to be free of cruel and
unusual punishment, a right which is enforced against the states through the Fourteenth Amendment . 59 . That Eighth Amendment right includes the right to receive treatment for his serious medical needs . 60 . As a wheelchair-bound paraplegic, Miller has serious medical needs . These needs include the need for sterile urine catheters ; physical therapy; special leg supports and shoes ; and surgery to correct ongoing spinal problems that cause persistent pain and other medical problems . As a result of his serious medical needs, Miller also needs assistance in order to perform routine tasks, including using the toilet and bathing . Without such assistance, he urinates and defecates on himself and is unable to clean himself . 61 . Further, the cells in K-building at GSP are not sufficiently large to accommodate both a bed and a wheelchair, a fact which is known to prison officials . However, beds are not removed from K-building cells during the day, leaving Miller unable to maneuver about his cell . The cells at ASMP are similarly limited in space . 62 . Additionally, the prisons do not have a wheelchair-accessible van, requirin g

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wheelchair-bound inmates to be transported in an unsafe fashion . 63. In a number of ways, including through multiple grievances, complaints and
requests filed by Miller, the defendants have been made specifically aware of Miller' s serious medical needs, and they are aware that he has not received necessary treatment for these needs , but they have failed to ensure that their respective prison staffs promptly provides proper treatment for those needs . As a result, the treatment of Miller' s serious medical needs remains, at best, grossly inadequate. 64. Further, the defendant Commissioner is aware that these p risons fail to provide adequate medical care to wheelchair -bound paraplegic inmates, and he has failed to take corrective action to ensure that such inmates ' serious medical needs are treated properly. 65 . As a result of such deliberate indifference to Miller' s serious medical needs, the Section 1983 Defendants have denied Miller his Eighth Amendment rights, as enforced through the Fourteenth Amendment , in violation of 42 U.S.C. § 1983 .
SEC . 1983 : FOURTEENTH AMENDMENT (Equal Protection) 66. The allegations of paragraphs 13 through 31 and paragraphs 39 through 49
are incorporated herein by reference .
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67. Miller has a Fourteenth Amendment right to equal protection of the laws . 68 . That right includes the right to be free of arbitrary or irrational discrimination
on the basis of disability. 69 . Wheelchair-bound inmates at GSP and ASMP generally, and particularly in
K-building at GSP, are not provided the same privileges as similarly-situated able-bodied inmates . 70. For instance, wheelchair-bound inmates at GSP and ASMP are unable to travel to and access the common buildings and areas available to able-bodied inmates without assistance, and no assistance is provided. Wheelchair-bound inmates are unable to use facilities such as toilets and shower, or to transfer themselves to and from bed, without risking injury to themselves, when ablebodied inmates face no such risk . 71 . Wheelchair-bound inmates in K-building at GSP are unable to move about their cells, when able-bodied inmates can . Wheelchair-bound inmates in Kbuilding are not taken out of isolation as prison policy provides for similarlysituated able-bodied inmates . Wheelchair-bound inmates in K-building are unable to fully access the small law library made available to able-bodied inmates in the building . 72. There is no legitimate penological interest or rational basis for failing t o

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provide even the most basic assistance or access to prison facilities . 73 . Accordingly, the Section 1983 Defendants have denied Miller his right to
equal protection guaranteed by the Fourteenth Amendment, in violation of § 1983 . SEC . 1983 : FIRST AMENDMENT (Retaliation and Access to Courts) 74. The allegations of paragraphs 13 through 31 and 50 through 56 are incorporated herein by reference . 75 . Miller has a First Amendment right to seek redress of grievances without fear of reprisal, as well as a First Amendment right of access to the courts . 76. Over the past several years, Miller has filed numerous grievances and several lawsuits seeking relief from the conditions described herein . 77. At various times following his lodging of complaints and lawsuits, Miller, among other things, has been transferred frequently from prison to prison; had his legal papers and other effects removed from his cell ; has experienced unusual and even indefinite delays in received or sent mail, including legal mail and communications with counsel; has been punished for assisting other prisoners with claims ; has not been granted access to the law library or to legal materials ; and has frequently been placed in isolation . These events have directly interfered with Miller's ability to pursue his grievances and

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lawsuits, as well as to assist others in doing the same . 78 . Prison officials have referenced his grievances and legal activities in
conjunction with one or more of these events ; on information and belief, these grievances and legal activities bore a causal relationship to the adverse events Miller suffered . 79. The Warden and Deputy Warden Defendants are, either through their own action, or by failing to ensure the prison officials they supervise comply with applicable law and prison regulations, responsible for such interference with Miller's attempts to redress his grievances and pursue legal remedies . 80 . Miller has been retaliated against for pursuing remedies for the unconstitutional and unlawful conditions of his confinement, in violation of his First Amendment rights, as enforced against the states through the Fourteenth Amendment . 81 . Regardless of any retaliation, the acts and omissions of prison officials, including the Wardens and Deputy Wardens of GSP and ASMP, described herein have interfered with Miller's access to the courts, in violation of his First and Fourteenth Amendment rights, and in violation of 42 U .S.C. § 1983 .
REHABILITATION ACT (29 U .S.C. § 794) 82. The allegations of paragraphs 13 through 73 are incorporated herein b y
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reference . 83 . Section 504 of the Rehabilitation Act, codified at 29 U .S.C. § 794, makes it
unlawful to exclude an otherwise qualified individual with a disability from participation in, or from receiving the benefits of, any program or activity receiving Federal financial assistance, solely by reason of his disability . 84. Georgia's prisons receive federal financial assistance, including, but not limited to, federal grants, within the meaning of 29 U .S.C. § 794(b) . 85 . As a wheelchair-bound, paraplegic inmate, Miller is a qualified individual with a disability, within the meaning of 29 U .S.C. § 794(a). 86. By reason of his disability, Miller has been excluded from receiving adequate facilities and medical treatment . Specifically, as described above under the heading "Eighth Amendment," he does not have access to sterile urine catheters ; physical therapy; special leg supports and shoes ; and necessary spinal surgery, among other treatments specific to his disability . He also does not have access to appropriate toilets and showers, and is not provided assistance in using the non-accommodating toilets and showers . Further, he is unable to move about his cell because his bed is not removed from the cell, and he is not transported in a wheelchair-accommodating van . 87. Additionally, as described under the heading "First Amendment," Miller i s

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Case 6:98-cv-00109-JEG Document 198 Filed 11/20/06 Page 21 of 29
unable to access the law library. 88. Further, because of his confinement to a wheelchair, Miller is excluded from
a number of other benefits or activities, including the library building, dining hall facilities, yard call, and physical activities at the prison . 89. The ADA Defendants have excluded Miller from these programs, facilities, and activities solely by reason of his disability of paraplegia, which requires his confinement to a wheelchair.
AMERICANS WITH DISABILITIES ACT (Discrimination) 90. The allegations of paragraphs 13 through 73 are incorporated herein by
reference . 91 . Title II of the ADA, makes it unlawful to exclude an otherwise qualified
individual with a disability from participation in, or from receiving the benefits of, any program or activity of a public entity, solely by reason of his disability, or for the public entity to subject that person to discrimination . 92. As a wheelchair-bound, paraplegic inmate, Miller is a qualified individual with a disability, within the meaning of 42 U .S.C. § 12132 . 93 . By reason of his disability, Miller has been excluded from receiving adequate facilities and medical treatment . Specifically, as described above under the heading "Eighth Amendment," he does not have access to sterile urine
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catheters ; physical therapy; special leg supports and shoes ; and necessary spinal surgery, among other treatments specific to his disability. He also does not have access to appropriate toilets and showers, and is not provided assistance in using the non-accommodating toilets and showers . Further, he is unable to move about his cell because his bed is not removed from the cell, and he is not transported in a wheelchair-accommodating van . 94 . Additionally, as described under the heading "First Amendment," Miller is unable to access the law library that is accessible to similarly-situated ablebodied inmates . 95 . Further, because of his confinement to a wheelchair, Miller is excluded from a number of other benefits or activities of the prisons, including the library building, dining hall facilities, yard call, and physical activities at the prison . 96. The ADA Defendants have excluded Miller from these programs, facilities, and activities solely by reason of his disability of paraplegia, which requires his confinement to a wheelchair .
AMERICANS WITH DISABILITIES ACT (Retaliation) 97 . The allegations of paragraphs 13 through 31, 50 through 56, and 90 through
96 are incorporated herein by reference . 98 . As described under the heading "First Amendment," on information an d

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belief, prison officials have retaliated against Miller in response to grievances and lawsuits he has filed . These grievances and lawsuits have alleged violations of the ADA, and have requested reasonable accommodations of his disability . 99. Accordingly, the ADA Defendants and the Warden and Deputy Warden Defendants, by their acts and/or omissions, have violated 42 U .S.C . § 12203(a), in addition to violating Miller's First Amendment rights .
INJUNCTIVE RELIE F 100. The allegations of paragraphs 13 through 99 are incorporated herein by
reference . 101 . Miller has a substantial likelihood of success on the § 1983 claims stated
above . 102. By reason of the Injunctive Relief Defendants' continued indifference to
Miller's serious medical needs, Miller faces imminent and ongoing serious physical harm. 103 . By reason of the Injunctive Relief Defendants' interference with Miller's attempts to pursue available remedies, Miller also may be prevented from obtaining relief from the threatened physical harm . 104. Placing Miller in an accommodating facility (either at GSP or elsewher e
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within the GDOC system), and ensuring appropriate access to the courts and legal materials pending resolution of the litigation will not damage the defendants, nor would it be adverse to the public interest. 105 . Miller is thus entitled to a preliminary injunction ordering the Injunctive Relief Defendants to place Miller in an accommodating facility during the pendency of this litigation, and enjoining defendants' interference with this litigation . 106. As Miller is serving a life sentence, there is also a substantial likelihood the harm Miller suffers, and the defendants' constitutional violations and unlawful discrimination, will continue . 107. Miller is thus entitled to a permanent injunction ordering that the Injunctive Relief Defendants ensure that, during the remainder of his sentence, in any facility in which he is housed, he receives proper treatment of his serious medical needs, that the facilities accessible to able-bodied inmates are not made unavailable to him solely because those facilities are not wheelchair accessible, and that prison officials at all times comply with legal an d regulatory requirements relating to Miller's access to a grievance procedure, legal materials, and the courts . 108 . Pursuant to 29 U .S.C. § 794a and 42 U .S.C. § 12133, Miller is also entitle d
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to a permanent injunction requiring the Injunctive Relief Defendants to provide reasonable accommodations as provided by the ADA and the Rehabilitation Act and their respective implementing regulations .
PUNITIVE DAMAGE S 109. The allegations of paragraphs 13 through 66 and paragraphs 75 through 81
are incorporated herein by reference . 110. The Section 1983 Defendants knew that Miller, as a wheelchair-bound
paraplegic, had serious medical needs . 111 . The Section 1983 Defendants knew that Miller was not receiving treatment,
services or assistance for his serious medical needs, at least in part because they had received or been made aware of Miller's repeated grievances seeking such treatment, services or assistance . 112. The Section 1983 Defendants acted with deliberate indifference to Miller's serious medical needs, in reckless disregard or indifference to Miller's rights and safety. 113 . Additionally, the Section 1983 Defendants have interfered with Miller's First Amendment rights to access to legal materials and the courts, and to seek redress of his grievances . 114. Accordingly, the individual defendants are liable, in their individua l
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capacities, for punitive damages for their violations of Miller's Eighth and First Amendment rights .
ATTORNEY'S FEE S 115 . Pursuant to 42 U.S.C. § 1988, as a prevailing party, Miller is entitled to his
reasonable attorneys' fees, costs and expenses in pursuing violations of 42 U.S.C. § 1983 . 116. Further, pursuant to the Rehabilitation Act (29 U .S.C. § 794a) and the ADA (42 U.S.C. § 12205), Miller is entitled to his reasonable attorneys' fees, costs and expenses in pursuing his disability discrimination claims .
PRAYER FOR RELIEF WHEREFORE, Plaintiff respectfully prays that this Court : 1 . Declare Section 1983 Defendants' deliberate indifference to Miller's serious medical needs to be in violation of the Eighth Amendment . 2. Declare ADA Defendants' failure to provide reasonable accommodation of Miller's disabilities, which in at least some cases rises to the level of a violation of the Eighth Amendment, to be in violation of the Rehabilitation Act and the ADA . 3 . Declare the Defendants' interference with Miller's grievances and litigation, as described herein, and their failure to provide him access to legal materials ,
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Case 6:98-cv-00109-JEG Document 198 Filed 11/20/06 Page 27 of 29
to be in violation of the First Amendment and the 42 U .S.C. § 12203(a) . 4. Enter a preliminary injunction ordering the Injunctive Relief Defendants to
place Miller in an accommodating facility during the pendency of this litigation, and enjoining defendants' interference with this litigation ; 5 . Enter a permanent injunction ordering that the Injunctive Relief Defendants ensure that, during the remainder of Miller's sentence, in any facility in which he is housed, he receives proper treatment of his serious medical needs, that the facilities accessible to able-bodied inmates are not made unavailable to him solely because those facilities are not wheelchair accessible, and that prison officials at all times comply with legal and regulatory requirements relating to Miller's access to a grievance procedure, legal materials, and the courts . 6 . Award Miller compensatory damages for pain and suffering (both physical and mental/emotional) as a result of the Defendants' failure to treat his serious medical needs . 7. Award Miller punitive damages against the Section 1983 Defendants, in their individual capacities, for their willful failure and deliberate indifference to Miller's serious medical needs, in an amount to be determined by the Court . 8 . Award Miller reasonable attorneys' fees and costs pursuant to 29 U .S .C .
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Case 6:98-cv-00109-JEG Document 198 Filed 11/20/06 Page 28 of 29 § 794a, 42 U .S .C . § 1988 , and 42 U.S .C . § 12205 . 9 . Order such additional relief as the Court may deem just and proper . DATED this the 17th day of November, 2006 . Bondurant, Mixson & Elmore, LLP Jeffre 0. ramlett 1201 West Peachtree Street, N.W. Georg r No . 07578 0 Atlanta, Georgia 30309 Sarah M . Shalf (pro hac) Phone (404) 881-4100 Georgia Bar No . 637537 Fax: (404) 881-411 1
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CERTIFICATE OF SERVIC E
I hereby certify that I have this day caused a true and correct copy of the
foregoing AMENDED COMPLAINT to be served upon counsel of record by
United States mail in a properly addressed envelope, postage prepaid, as follows :
David V . Weber 401 Hale Street Augusta, GA 30901
Stephen E. Curry Curry Law Firm 3508 C Professional Circle Martinez, GA 30907-222 0
Thurbert Baker, Attorney General Attorney General's Offic e 40 Capitol Square, SW Atlanta, GA 30334-900 3
This 17th day of November, 2006 .

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 Case: 6:98-cv-109 As of: 06/18/2019 01:24 PM EDT 1 of 53
U.S. District Court Southern District of Georgia (Statesboro) CIVIL DOCKET FOR CASE #: 6:98−cv−00109−JEG

CLOSED

Miller v. King, et al Assigned to: Magistrate Judge James E. Graham Demand: $0 Case in other court: 01−14028I
02−13348A
11th Circuit, 13−11192
99−10648 Cause: 42:1983 Prisoner Civil Rights
Plaintiff

Date Filed: 08/04/1998 Date Terminated: 09/14/2010 Jury Demand: Defendant Nature of Suit: 555 Prisoner − Prison Condition Jurisdiction: Federal Question

Tracy Miller GDC# 191378 Augusta State Medical Prison 3001 Gordon Highway Grovetown, GA 30813

represented by Jeffrey O. Bramlett Bondurant, Mixson & Elmore Firm 3900 One Atlantic Center 1201 W. Peachtree St., NW Atlanta, GA 30309−3417 404−881−4192 Fax: 404−881−4111 Email: bramlett@bmelaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sarah M. Shalf Emory University School of Law 1301 Clifton Road Atlanta, GA 30322 404−712−4652 Fax: 404−668−8769 Email: sarah.shalf@emory.edu LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

John H. Rains , IV Bondurant, Mixson & Elmore, LLP One Atlantic Center 1201 W. Peachtree St., NW Suite 3900 Atlanta, GA 30309−3417 404−881−4128 Email: rains@bmelaw.com PRO HAC VICE ATTORNEY TO BE NOTICED

Robert L. Ashe , III Bondurant, Mixson & Elmore, LLP 1201 West Peachtree St., NW Suite 3900 Atlanta, GA 30309 404−881−4169 Email: ashe@bmelaw.com PRO HAC VICE ATTORNEY TO BE NOTICED

V. Movant

Case: 6:98-cv-109 As of: 06/18/2019 01:24 PM EDT 2 of 53
Ernest Howard, Sr. TERMINATED: 10/26/2007

V.
Defendant
Ronald King TERMINATED: 11/20/2006

represented by Aaron Bradford Mason Dept. of Law 40 Capitol Sq., SW Atlanta, GA 30334−1300 404−656−0006 Fax: 404−651−6341 Email: amason@law.ga.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
David V. Weber 347 Greene Street Augusta, GA 30901 706−724−3331 Fax: 706−724−3327 Email: dweberatty@yahoo.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Devon Orland Georgia Advocacy Office Suite 625 One West Court Square Decatur, GA 30030 404−885−1234 Fax: 404−378−0031 Email: dorland@thegao.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michelle J. Hirsch Dept. of Law 40 Capitol Sq., SW Atlanta, GA 30334−1300 404−463−8850 Fax: 404−651−5304 Email: mhirsch@law.ga.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Pattie J. Williams Dept. of Law 40 Capitol Sq., SW Atlanta, GA 30334−1300 404−651−6174 Fax: 404−651−5304 Email: pwilliams@law.ga.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stephen E. Curry Curry Law Firm 3508 C Professional Circle Martinez, GA 30907−2220 706−724−0022 Fax: 866−337−3859 Email: securry@currylawfirm.com TERMINATED: 06/17/2002

Case: 6:98-cv-109 As of: 06/18/2019 01:24 PM EDT 3 of 53

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Susan Elizabeth Teaster Georgia Department of Law 40 Capitol Square, SW Atlanta, GA 30334−1300 404−463−8850 Fax: 404−651−5304 Email: steaster@law.ga.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Wayne Garner Former Commissioner of the Department of Corrections TERMINATED: 07/22/2010

represented by Michelle J. Hirsch (See above for address) LEAD ATTORNEY
Pattie J. Williams (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stephen E. Curry (See above for address) TERMINATED: 02/25/2000 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Susan Elizabeth Teaster (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
The State of Georgia TERMINATED: 07/22/2010

represented by Aaron Bradford Mason (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

David V. Weber (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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

Michelle J. Hirsch (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Pattie J. Williams (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stephen E. Curry (See above for address) TERMINATED: 01/29/2002 LEAD ATTORNEY

Case: 6:98-cv-109 As of: 06/18/2019 01:24 PM EDT 4 of 53

ATTORNEY TO BE NOTICED

Susan Elizabeth Teaster (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
The Georgia Department of Corrections

represented by Aaron Bradford Mason (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

David V. Weber (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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

Karla Brown Dolby 7424 Wapiti Court Charlotte, NC 28273 404−933−7791 Email: karla.dolby@gmail.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michelle J. Hirsch (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Pattie J. Williams (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stephen E. Curry (See above for address) TERMINATED: 01/29/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Susan Elizabeth Teaster (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Johnny Sikes Former Warden, Georgia State Prison TERMINATED: 07/22/2010

represented by Aaron Bradford Mason (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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

Michelle J. Hirsch

Case: 6:98-cv-109 As of: 06/18/2019 01:24 PM EDT 5 of 53

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

Pattie J. Williams (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stephen E. Curry (See above for address) TERMINATED: 02/25/2000 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Susan Elizabeth Teaster (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Warden Hugh Smith Georgia State Prison TERMINATED: 01/07/2010

represented by Devon Orland (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michelle J. Hirsch (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Pattie J. Williams (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Susan Elizabeth Teaster (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Steve Roberts Deputy Warden for Security, Georgia State Prison TERMINATED: 01/07/2010

represented by Devon Orland (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michelle J. Hirsch (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Pattie J. Williams (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Susan Elizabeth Teaster (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant

Case: 6:98-cv-109 As of: 06/18/2019 01:24 PM EDT 6 of 53

Carolyn Mailloux M.D., Medical Director, Georgia State Prison, TERMINATED: 01/07/2010

represented by Devon Orland (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michelle J. Hirsch (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Pattie J. Williams (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Susan Elizabeth Teaster (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Lisa Waters Johnson R.N., Health Administrator, Georgia State Prison TERMINATED: 01/07/2010

represented by Devon Orland (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michelle J. Hirsch (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Pattie J. Williams (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Susan Elizabeth Teaster (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Warden Victor L. Walker Augusta State Medical Prison TERMINATED: 01/08/2010

represented by Devon Orland (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michelle J. Hirsch (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Pattie J. Williams (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Susan Elizabeth Teaster (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant

Case: 6:98-cv-109 As of: 06/18/2019 01:24 PM EDT 7 of 53

ASMP Warden Dennis Brown

represented by Devon Orland (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Karla Brown Dolby (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michelle J. Hirsch (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Pattie J. Williams (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Susan Elizabeth Teaster (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
James Donald Current Commissioner of the Department of Corrections TERMINATED: 01/07/2010

represented by Devon Orland (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michelle J. Hirsch (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Pattie J. Williams (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Susan Elizabeth Teaster (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Joseph Paris M.D., Medical Director, Dept. of Corrections TERMINATED: 01/08/2010

represented by Devon Orland (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michelle J. Hirsch (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Pattie J. Williams (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Susan Elizabeth Teaster (See above for address)

Case: 6:98-cv-109 As of: 06/18/2019 01:24 PM EDT 8 of 53

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Georgia State Prison TERMINATED: 01/13/2010

represented by Devon Orland (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michelle J. Hirsch (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Pattie J. Williams (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Susan Elizabeth Teaster (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Augusta State Medical Prison TERMINATED: 01/13/2010

represented by Devon Orland (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michelle J. Hirsch (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Pattie J. Williams (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Susan Elizabeth Teaster (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant DOC Commissioner Brian Owens

represented by Aaron Bradford Mason Dept. of Law GA Attorney General's Office 40 Capitol Sq., SW Atlanta, GA 30334−1300 404−656−0006 Fax: 404−651−6341 Email: amason@law.ga.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

David V. Weber (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Devon Orland

Case: 6:98-cv-109 As of: 06/18/2019 01:24 PM EDT 9 of 53

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

Karla Brown Dolby (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michelle J. Hirsch (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Pattie J. Williams Dept. of Law GA Attorney General's Office 40 Capitol Sq., SW Atlanta, GA 30334−1300 404−651−6174 Fax: 404−651−5304 Email: pwilliams@law.ga.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Susan Elizabeth Teaster (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant DOC Medical Director Sharon Lewis

represented by Aaron Bradford Mason (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

David V. Weber (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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

Karla Brown Dolby (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michelle J. Hirsch (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Pattie J. Williams (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Susan Elizabeth Teaster (See above for address) LEAD ATTORNEY

Case: 6:98-cv-109 As of: 06/18/2019 01:24 PM EDT 10 of 53

ATTORNEY TO BE NOTICED

Defendant
T.J. Conley ASMP Dep. Warden Security

represented by Aaron Bradford Mason (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

David V. Weber (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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

Karla Brown Dolby (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michelle J. Hirsch (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Pattie J. Williams (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Susan Elizabeth Teaster (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant GSP Warden Don Jarriel

represented by Aaron Bradford Mason (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

David V. Weber (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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

Karla Brown Dolby (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michelle J. Hirsch (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 6:98-cv-109 As of: 06/18/2019 01:24 PM EDT 11 of 53

Pattie J. Williams (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Susan Elizabeth Teaster (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Dane Dasher GSP Dep. Warden Security

represented by Aaron Bradford Mason (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

David V. Weber (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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

Karla Brown Dolby (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michelle J. Hirsch (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Pattie J. Williams (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Susan Elizabeth Teaster (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Dr. Tommy Jones GSP Medical Director

represented by Aaron Bradford Mason (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

David V. Weber (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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

Karla Brown Dolby (See above for address)

Case: 6:98-cv-109 As of: 06/18/2019 01:24 PM EDT 12 of 53

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michelle J. Hirsch (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Pattie J. Williams (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Susan Elizabeth Teaster (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Tom King GSP Health Administrator

represented by Aaron Bradford Mason (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

David V. Weber (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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

Karla Brown Dolby (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michelle J. Hirsch (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Pattie J. Williams (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Susan Elizabeth Teaster (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus United States Of America

represented by Delora L. Kennebrew U.S. Attorney's Office − Savannah P.O. Box 8970 22 Barnard Street, Suite 300 Savannah, GA 31401 912−652−4422 Fax: 912−652−4227 Email: delora.kennebrew@usdoj.gov LEAD ATTORNEY

Case: 6:98-cv-109 As of: 06/18/2019 01:24 PM EDT 13 of 53
ATTORNEY TO BE NOTICED
Dirk Phillips U.S. Dept. of Justice Civil Rights Division−Apellate Section Ben Franklin Station P.O. Box 14403 Washington, DC 20044 202−305−4876 Fax: 202−514−8490 Email: dirk.phillips@usdoj.gov TERMINATED: 07/06/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sarah E. Harrington Dept. of Justice−Appellate Section Civil Rights Division P.O. Box 14403 Ben Franklin Station Washington, DC 20044−4403 202−305−7999 Fax: 202−514−8490 Email: sarah.harrington@usdoj.gov TERMINATED: 09/29/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sasha M. Samberg−Champion Dept. of Justice Civil Rights Division P.O. Box 14403 Washington, DC 20044−4403 202−307−0714 Email: sasha.samberg−champion@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
William Francis Lynch Dept. of Justice 1425 New York Ave., NW 6th Floor Washington, DC 20005 202−305−2008 Fax: 202−514−7821 Email: william.lynch@usdoj.gov ATTORNEY TO BE NOTICED

Date Filed 08/04/1998
08/04/1998
08/04/1998 08/17/1998
08/17/1998

# Docket Text
Miscellaneous Case # 698−58 transferred to civil docket. Case assigned to Judge B. Avant Edenfield (nmt) (Entered: 08/05/1998)
1 ORDER granting IFP. Dir pltf to return both PLRA Forms by 9−9−98 ( signed by Magistrate Judge James E. Graham ); copies served. (nmt) (Entered: 08/05/1998)
2 COMPLAINT nunc pro tunc 7−20−98 (nmt) (Entered: 08/05/1998)
3 Consent by Prisoner to collection of fees filed by plaintiff Tracy Miller. (nmt) (Entered: 08/17/1998)
4 Prisoners Statement of Account filed by plaintiff Tracy Miller (from the Warden) (nmt) (Entered: 08/17/1998)

Case: 6:98-cv-109 As of: 06/18/2019 01:24 PM EDT 14 of 53

08/17/1998 08/17/1998 09/08/1998 09/10/1998 09/21/1998 10/16/1998 10/21/1998
12/14/1998
12/14/1998 12/16/1998 01/14/1999 01/14/1999 01/25/1999 02/09/1999 02/12/1999 02/16/1999 02/16/1999 02/16/1999
02/17/1999

5 MOTION by Tracy Miller for Preliminary Injunction , and for Protective Order with brief in support. (nmt) (Entered: 08/17/1998)
6 MOTION by Tracy Miller to Amend certain issues with brief in support. (nmt) (Entered: 08/17/1998)
7 MOTION by Tracy Miller for Temporary Restraining Order , and for Preliminary Injunction with brief in support. (nmt) (Entered: 09/08/1998)
8 ORDER granting [6−1] motion to Amend certain issues; resetting Amended Pleadings deadline to 9/20/98 ( signed by Magistrate Judge James E. Graham ); copies served. (slt) (Entered: 09/10/1998)
9 MOTION by Tracy Miller to Amend [2−1] complaint with brief in support. (jgb) (Entered: 09/22/1998)
10 MOTION by Tracy Miller to amend diversity jurisdiction with brief in support. (Filed May 4, 1998) (bcw) (Entered: 10/16/1998)
11 ORDER granting [10−1] motion to amend diversity jurisdiction, granting [9−1] motion to Amend [2−1] complaint; directing pltf to file amended complaint w/in 10 days of the date of this order. (signed by Magistrate Judge James E. Graham ); copies served. (slt) (Entered: 10/21/1998)
12 ORDER assessing an initial partial filing fee in the amt of $1.00. Pltf's custodian shall deduct the initial partial filing fee of $1.00 from pltf's prison trust acct. and forward to the Clerk as the first installment of the filing fee of $150.00 ( signed by Magistrate Judge James E. Graham ); copies served. (nmt) (Entered: 12/15/1998)
13 ORDER dir service of the copy of the complaint and this order upon defts King and Garner by USM ( signed by Magistrate Judge James E. Graham ); copies served. (nmt) (Entered: 12/15/1998)
14 ORDER denying [7−1] motion for Temporary Restraining Order, denying [5−1] motion for Preliminary Injunction ( signed by Judge B. Avant Edenfield ); copies served. (fbh) (Entered: 12/16/1998)
15 WAIVER OF SERVICE Returned Executed as to Ronald King 12/16/98 Answer due on 2/14/99 for Ronald King (dks) (Entered: 01/14/1999)
16 WAIVER OF SERVICE Returned Executed as to Wayne Garner 12/16/98 Answer due on 2/14/99 for Wayne Garner (dks) (Entered: 01/14/1999)
17 MOTION by Tracy Miller for Preliminary Injunction , for Protective Order with brief in support. (jgb) (Entered: 01/25/1999)
18 MOTION by Tracy Miller fro issue writ of habeas corpus ad test if landrum pro−se with brief in support. (jgb) (Entered: 02/09/1999)
19 WRIT to Produce Clarence Nathan Downs for hrg on 2/17/99 at Reidsville, Ga ( signed by Magistrate Judge James E. Graham ); copies served. (jsr) (Entered: 02/12/1999)
20 ANSWER to Complaint by Ronald King, Wayne Garner (Attorney Stephen E. Curry),; jury demand (jgb) (Entered: 02/17/1999)
** Set Jury Trial Flag. (jgb) (Entered: 02/17/1999)
SCHEDULING NOTICE setting Summary Judgment deadline on 7/16/99 ; Joining of parties,amending of pleadings by 4/17/99 ; Expert witness report by Defendant due by 5/17/99 ; Expert witness report by plaintiff due by 4/17/99 ; Motion Filing deadline on 7/6/99 ; Discovery cutoff 6/16/99 ; copies served. (jgb) (Entered: 02/17/1999)
Motion hearing held re: [17−1] motion for Preliminary Injunction by Tracy Miller. [17−2] motion for Protective Order by Tracy Miller. Witnesses sworn. Rule invoked. Opening stmts made by Mr. Miller. Pltf's witnesses: Clarence Downs, Johnny L. King, Carolyn Mailloux, M.D., Terry Deon Moye, Johnny Sikes, Reginald Ford, Thomas Lowery, Visol Smith, Kevin McNeal. Mr. McNeal testified that Mr. Miller's witnesses, Tony Goodman, refused to appear to testify. (Subpoena not issued), and Ronald King, for Pltf. Parties rested. The Court instructed Mr. Miller to submit to the court exhibits

Case: 6:98-cv-109 As of: 06/18/2019 01:24 PM EDT 15 of 53

02/22/1999 02/26/1999 03/02/1999 03/15/1999
03/15/1999 03/15/1999
03/22/1999 03/22/1999 03/29/1999 04/06/1999 04/08/1999 04/08/1999 04/09/1999
04/12/1999 04/19/1999 04/20/1999 04/20/1999 04/20/1999

that are pertinent to this motion. The court will make copies of the exhibits and return the originals to Mr. Miller. Closing stmts made by Mr. Miller. The Court will prepare a Report & Recommendation. Court Reporter: Tape Nos.: 99−13 to 99−17. (lgl) Modified on 03/04/2003 (Entered: 02/18/1999)
21 MOTION by Tracy Miller to supplement supporting argument and exhibits in support of pltf's motion for preliminary injunction with brief in support. (slt) (Entered: 02/22/1999)
22 Exhibit list by Tracy Miller to 2/17/99, Motion Hrg for TRO/PI. (lgl) (Entered: 02/26/1999)
23 MOTION by Tracy Miller to Amend the disability act with brief in support. (jgb) (Entered: 03/03/1999)
24 REPORT AND RECOMMENDATIONS of Magistrate Judge James E. Graham Re: [17−1] motion for Preliminary Injunction, [17−2] motion for Protective Order recommending said motions be denied; Motion no longer referred; copies served. Objections to R and R due by 4/2/99 (ddc) (Entered: 03/15/1999)
25 ORDER Objections set to 4/2/99 for [24−1] report and recommendations ( signed by Magistrate Judge James E. Graham ); copies served. (ddc) (Entered: 03/15/1999)
26 ORDER that a copy of Pla's complaint and this Order shall be served upon defts King and Garner by USM w/out prepayment. Defts must file either a dispositive motion or answer to complaint w/in 30 days. Instructions herein to defts regarding waiver of service as well as granting leave to take depo of pla, setting forth requirements. Instructions to pla regarding filing of pleadings and motions herein. ( signed by Magistrate Judge James E. Graham ); copies served. (ddc) (Entered: 03/15/1999)
27 OBJECTION by Tracy Miller to [24−1] report and recommendations (jgb) (Entered: 03/22/1999)
28 MOTION by Tracy Miller to return his exhibits property with brief in support. (jgb) (Entered: 03/22/1999)
29 SECOND OBJECTION by plaintiff Tracy Miller to [24−1] report and recommendations (rrr) (Entered: 03/30/1999)
30 MOTION by Tracy Miller for Preliminary Injunction with brief in support. (jgb) (Entered: 04/07/1999)
31 ORDER dismissing as moot [18−1] motion for issue writ of habeas corpus ad test if landrum pro−se ( signed by Magistrate Judge James E. Graham ); copies served. (jsr) (Entered: 04/08/1999)
32 ORDER granting [21−1] motion to supplement supporting argument and exhibits in support of pltf's motion for preliminary injunction ( signed by Magistrate Judge James E. Graham ); copies served. (jsr) (Entered: 04/08/1999)
33 ORDER denying [17−1] motion for Preliminary Injunction, denying [17−2] motion for Protective Order and adopting the Report and Recommendation of the Magistrate Judge ( signed by Judge B. Avant Edenfield ); copies served. (jgb) (Entered: 04/09/1999)
34 MOTION by Tracy Miller to supplement objections to R/R with brief in support. (jgb) (Entered: 04/13/1999)
35 MOTION by Tracy Miller for Appointment of Counsel with brief in support. (fbh) (Entered: 04/20/1999)
Motion(s) referred: [35−1] motion for Appointment of Counsel referred to Magistrate Judge James E. Graham (fbh) (Entered: 04/20/1999)
36 MOTION by Tracy Miller to Proceed in Forma Pauperis with brief in support. (fbh) (Entered: 04/20/1999)
37 NOTICE OF APPEAL by Tracy Miller . ; copies served. [33−1] order (fbh) (Entered: 04/20/1999)

Case: 6:98-cv-109 As of: 06/18/2019 01:24 PM EDT 16 of 53

04/21/1999 04/21/1999
04/22/1999 04/29/1999
04/30/1999 05/05/1999 06/02/1999 06/07/1999 06/14/1999 06/14/1999 06/14/1999 06/14/1999 06/17/1999
06/18/1999
06/23/1999 06/23/1999
06/28/1999 07/02/1999 07/14/1999 07/19/1999
07/19/1999

Notice of Appeal and certified copy of docket to USCA: [37−1] appeal by Tracy Miller (fbh) (Entered: 04/21/1999)
38 ORDER granting [23−1] motion to Amend the disability act; directing USM service on deft Sikes, Ga Dept. of Corrections, State of GA; instructions to defts; instructions to pltf. ( signed by Magistrate Judge James E. Graham ); copies served. (slt) (Entered: 04/21/1999)
39 ORDER denying [35−1] motion for Appointment of Counsel ( signed by Magistrate Judge James E. Graham ); copies served. (slt) (Entered: 04/22/1999)
40 ORDER dismissing [28−1] motion to return Plaintiff's exhibits property; out of an abundance of caution, Clerk is directed to forward to the Pla copies of the exhibits attached to Document #29.(signed by Magistrate Judge James E. Graham ); copies served. (ddc) (Entered: 04/30/1999)
USCA Case Number Re: [37−1] appeal by Tracy Miller USCA NUMBER: 99−10648 (bcw) (Entered: 04/30/1999)
41 ORDER denying [30−1] motion for Preliminary Injunction ( signed by Judge B. Avant Edenfield ); copies served. (dks) (Entered: 05/06/1999)
42 WAIVER OF SERVICE Returned Executed as to State of Georgia (not listed as party) 4/28/99 Answer due on 9/20/98 (dks) (Entered: 06/03/1999)
43 MOTION by Tracy Miller for Petition for Assistance in appointment of Consel with brief in support. (fbh) (Entered: 06/09/1999)
44 WAIVER OF SERVICE Returned Executed as to Johnny Sikes 4/28/99 Answer due on 9/20/98 (jgb) (Entered: 06/16/1999)
45 WAIVER OF SERVICE Returned Executed as to Wayne Garner 3/18/99 Answer due on 5/17/99 for Wayne Garner (jgb) (Entered: 06/16/1999)
46 WAIVER OF SERVICE Returned Executed as to Ga. Dept. of Corrections 4/28/99 Answer due on 9/20/98 (jgb) (Entered: 06/16/1999)
47 WAIVER OF SERVICE Returned Executed as to Ronald King 3/18/99 Answer due on 5/17/99 for Ronald King (jgb) (Entered: 06/16/1999)
48 ORDER dismissing as moot [34−1] motion to supplement objections to R/R ( signed by Magistrate Judge James E. Graham ); [EOD Date 6/17/99 copies served. (slt) (Entered: 06/17/1999)
49 ORDER denying [43−1] motion for Petition for Assistance in appointment of Consel, denying [36−1] motion to Proceed in Forma Pauperis ( signed by Judge B. Avant Edenfield ); [EOD Date 6/18/99 copies served. (fbh) (Entered: 06/18/1999)
50 ANSWER to Complaint by State of Georgia, GA Dept of Corr, Johnny . Sikes (Attorney Stephen E. Curry),; jury demand (ssl) (Entered: 06/30/1999)
SCHEDULING NOTICE setting Summary Judgment deadline on 11/20/99 ; Joining of parties,amending of pleadings by 8/22/99 ; Motion Filing deadline on 11/10/99 ; Discovery cutoff 10/21/99 ; copies served. (ssl) (Entered: 06/30/1999)
51 MOTION by Tracy Miller to clarify and for reconsideration of Document 49 with brief in support. (ssl) (Entered: 06/28/1999)
52 Out of Time MOTION by Tracy Miller to Amend [2−1] complaint with brief in support. (jgb) (Entered: 07/02/1999)
53 MOTION by Ronald King, Wayne Garner to Extend Time thru 7/30/99 with brief in support. (dks) (Entered: 07/16/1999)
54 MOTION by Tracy Miller to Strike [53−1] motion to Extend Time thru 7/30/99 by Wayne Garner, Ronald King, [51−1] motion to clarify and for reconsideration of Document 49 by Tracy Miller with brief in support. (ssl) (Entered: 07/19/1999)
55 ORDER granting [53−1]Defts' motion to Extend Time thru 7/30/99 resetting Motion Filing deadline to 7/30/99 , resetting Summary Judgment Deadline to 7/30/99 ( signed

Case: 6:98-cv-109 As of: 06/18/2019 01:24 PM EDT 17 of 53

07/30/1999 08/02/1999 08/03/1999
08/04/1999 08/04/1999
08/04/1999 08/05/1999 08/05/1999 08/06/1999 08/16/1999 08/16/1999 08/17/1999 08/17/1999
08/17/1999 08/20/1999
08/23/1999 08/23/1999 09/02/1999 09/07/1999

by Magistrate Judge James E. Graham ); [EOD Date 7/19/99 copies served. (jsr) (Entered: 07/19/1999)
56 MOTION by Ronald King, Wayne Garner, State of Georgia, GA Dept of Corr, Johnny . Sikes to Extend Time to file Motion for Summary Judgment with brief in support. (ssl) (Entered: 08/02/1999)
63 USCA consent form (jgb) Modified on 07/18/2001 (slt). (Entered: 08/11/1999)
57 ORDER granting [56−1] motion to Extend Time to file Motion for Summary Judgment; resetting Summary Judgment Deadline to 8/4/99 ( signed by Magistrate Judge James E. Graham ); [EOD Date 8/3/99 copies served. (slt) (Entered: 08/03/1999)
58 MOTION by Ronald King, Wayne Garner, State of Georgia, GA Dept of Corr, Johnny . Sikes for Summary Judgment with brief in support. (jgb) (Entered: 08/06/1999)
59 STATEMENT OF MATERIAL FACTS by defendant Ronald King, defendant Wayne Garner, defendant State of Georgia, defendant GA Dept of Corr, defendant Johnny . Sikes in support of [58−1] motion for Summary Judgment by Johnny . Sikes, GA Dept of Corr, State of Georgia, Wayne Garner, Ronald King (jgb) (Entered: 08/06/1999)
60 NOTICE of filing by Ronald King, Wayne Garner, State of Georgia, GA Dept of Corr, Johnny . Sikes (jgb) (Entered: 08/06/1999)
Original papers mailed to USCA this date (bcw) (Entered: 08/05/1999)
61 MOTION by Ronald King, Wayne Garner, State of Georgia, GA Dept of Corr, Johnny . Sikes for Leave to File supplemental brief with brief in support. (jgb) (Entered: 08/10/1999)
NOTICE issued re: [58−1] motion for Summary Judgment (jgb) (Entered: 08/06/1999)
62 RESPONSE by Tracy Miller in opposition to [58−1] motion for Summary Judgment by Johnny . Sikes, GA Dept of Corr, State of Georgia, Wayne Garner, Ronald King (ssl) Modified on 08/17/1999 (Entered: 08/16/1999)
64 ORDER granting [61−1] motion for Leave to File supplemental brief set Brief deadline to 9/7/99 ( signed by Magistrate Judge James E. Graham ); [EOD Date 8/16/99 copies served. (ddc) Modified on 07/18/2001 (Entered: 08/16/1999)
65 ORDER denying [52−1] motion to Amend [2−1] complaint ( signed by Magistrate Judge James E. Graham ); [EOD Date 8/17/99 copies served. (jsr) (Entered: 08/17/1999)
66 ORDER dismissing [54−1] motion to Strike [53−1] motion to Extend Time thru 7/30/99 by Wayne Garner, Ronald King, [51−1] motion to clarify and for reconsideration of Document 49 by Tracy Miller ( signed by Magistrate Judge James E. Graham ); [EOD Date 8/17/99 copies served. (jsr) (Entered: 08/17/1999)
Ntc of summary judgment returned from pla − pla refused (jgb) (Entered: 08/19/1999)
67 ORDER denying [51−1] motion to clarify and for reconsideration of Document 49, the order dated 6/18/99 shall remain the order of the Court, the portion of pla's motion seeking clarification, is also denied. ( signed by Judge B. Avant Edenfield ); [EOD Date 8/20/99 copies served. (jgb) (Entered: 08/20/1999)
68 MOTION by Tracy Miller to exceed 25 page limit with brief in support. (jgb) (Entered: 08/25/1999)
68 ...RESPONSE by Tracy Miller in opposition to [58−1] motion for Summary Judgment by Johnny . Sikes, GA Dept of Corr, State of Georgia, Wayne Garner, Ronald King (jgb) (slt). (Entered: 08/25/1999)
69 MOTION by Tracy Miller to supplement his affidavit to his motion in oppositon to the defendant's motion for summary judgment with brief in support. (ssl) (Entered: 09/02/1999)
70 ORDER granting [68−1] motion to exceed 25 page limit ( signed by Magistrate Judge James E. Graham ); [EOD Date 9/7/99 copies served. (slt) (Entered: 09/07/1999)

Case: 6:98-cv-109 As of: 06/18/2019 01:24 PM EDT 18 of 53

09/20/1999 09/22/1999 09/27/1999 09/28/1999
09/28/1999
10/04/1999 10/04/1999 10/04/1999 10/21/1999
10/25/1999 10/25/1999 10/25/1999 10/25/1999 10/25/1999 10/27/1999 11/03/1999 11/05/1999 11/05/1999

71 MOTION by Tracy Miller to clarify Order of 8/17/99 with brief in support. (dks) Modified on 10/14/1999 (Entered: 09/20/1999)
72 JOINT STATUS REPORT by Ronald King, Wayne Garner, State of Georgia, GA Dept of Corr, Johnny . Sikes (jgb) (Entered: 09/24/1999)
73 MOTION by Tracy Miller to exceed 25 pages, motion out of time, motion in opposition to defendant's motion for summary judgment with brief in support. (ssl) (Entered: 09/28/1999)
74 SECOND MOTION by Ronald King, Wayne Garner, State of Georgia, GA Dept of Corr, Johnny . Sikes for Leave to File Supplemental Brief (original brief and support attached to this motion) with brief in support. (dks) Modified on 10/06/1999 (Entered: 09/29/1999)
75 SUPPLEMENTAL BRIEF/MEMORANDUM by Ronald King, Wayne Garner, State of Georgia, GA Dept of Corr, Johnny . Sikes in support of [74−1] motion for Leave to File Supplemental Brief (original brief and support attached to this motion) by Johnny . Sikes, GA Dept of Corr, State of Georgia, Wayne Garner, Ronald King (dks) (Entered: 10/06/1999)
76 MOTION by Tracy Miller to Stay summary judgment with brief in support. (jgb) (Entered: 10/07/1999)
77 RESPONSE by Tracy Miller in opposition to [58−1] motion for Summary Judgment by Johnny . Sikes, GA Dept of Corr, State of Georgia, Wayne Garner, Ronald King (jgb) (Entered: 10/07/1999)
78 MOTION by Tracy Miller to Stay; dft's motion supplemental brief in support of MSJ filed on 9/28/99 pending this court's reconsideration of pla's motion for appt. of counsel with brief in support. (jgb) (Entered: 10/07/1999)
79 ORDER denying [78−1] motion to Stay; dft's motion supplemental brief in support of MSJ filed on 9/28/99 pending this court's reconsideration of pla's motion for appt. of counsel ( signed by Judge B. Avant Edenfield ); [EOD Date 10/21/99 copies served. (nys) (Entered: 10/21/1999)
80 ORDER granting [74−1] motion for Leave to File Supplemental Brief. ( signed by Magistrate Judge James E. Graham ); [EOD Date 10/25/99 copies served. (slt) (Entered: 10/25/1999)
81 ORDER dismissing [71−1] motion to clarify Order of 8/17/99 ( signed by Magistrate Judge James E. Graham ); [EOD Date 10/25/99 copies served. (ddc) (Entered: 10/25/1999)
82 ORDER granting [73−1] motion to exceed 25 pages in response to defendant's motion for summary judgment ( signed by Magistrate Judge James E. Graham ); [EOD Date 10/25/99 copies served. (ddc) (Entered: 10/25/1999)
83 ORDER dismissing [76−1] motion to Stay summary judgment ( signed by Magistrate Judge James E. Graham ); [EOD Date 10/25/99 copies served. (slt) (Entered: 10/25/1999)
84 ORDER granting [69−1] motion to supplement his affidavit to his motion in oppositon to the defendant's motion for summary judgment ( signed by Magistrate Judge James E. Graham ); [EOD Date 10/25/99 copies served. (slt) (Entered: 10/25/1999)
85 MOTION by Tracy Miller for Leave to File opposition to amend his opposition with brief in support. (jgb) (Entered: 10/28/1999)
86 MOTION by Tracy Miller to Amend [86−1] motion by Tracy Miller with brief in support. (ssl) (Entered: 11/04/1999)
87 ORDER denying [36−1] motion to Proceed in Forma Pauperis, denying [35−1] motion for Appointment of Counsel as moot (); [EOD Date 11/9/99 copies served. (ssl) (Entered: 11/09/1999)
Record on Appeal returned from U.S. Court of Appeals: [37−1] appeal (ssl) (Entered: 11/09/1999)

Case: 6:98-cv-109 As of: 06/18/2019 01:24 PM EDT 19 of 53

11/22/1999
12/09/1999 01/11/2000 01/11/2000 01/25/2000 01/25/2000
01/31/2000 02/07/2000 02/25/2000
03/24/2000 03/29/2000
07/06/2000 08/07/2000 08/31/2000
04/16/2001 04/30/2001 05/17/2001 05/24/2001

88 ORDER granting [86−1] motion to Amend opposition and granting [85−1] motion for Leave to File opposition to defts' Motion for Summary Judgment. ( signed by Magistrate Judge James E. Graham ); [EOD Date 11/22/99 copies served. (ddc) (Entered: 11/22/1999)
Original papers mailed to USCA this date (bcw) (Entered: 12/09/1999)
Record on Appeal returned from U.S. Court of Appeals: [37−1] appeal (jgb) (Entered: 01/12/2000)
89 USCA ORDER denying appellant's motion to proceed on appeal and for appointment of counsel; this appeal is dismissed. ; [EOD Date 1/12/00 (jgb) (Entered: 01/12/2000)
90 ORDER directing service of R&R, obj to be filed by 2/14/00 ( signed by Magistrate Judge James E. Graham ); [EOD Date 1/25/00 copies served. (jsr) (Entered: 01/25/2000)
91 REPORT AND RECOMMENDATIONS of Magistrate Judge James E. Graham to grant [58−1] motion for Summary Judgment on the claim of deliberate indifference against Deft. Sikes & the claim of due process violations against deft. Garner and denying balance of MFSJ, Pltf's MFSJ be denied ; Motion no longer referred; copies served. Objections to R and R due by 2/14/00 (jsr) (Entered: 01/25/2000)
92 OBJECTION by Tracy Miller to [91−1] report and recommendations (jgb) (Entered: 01/31/2000)
93 OBJECTION by Tracy Miller to [91−1] report and recommendations (ssl) (Entered: 02/07/2000)
94 ORDER granting in part, denying in part [58−1] motion for Summary Judgment; summary judgment is granted on the claim of deliberate indifference against Defendant Sikes and granted on the claim of due process violations against Defendant Garner;All other portions of defendants' Motion for Summary Judgment are denied; plaintiff's motion for summary judgment is denied ( signed by Judge B. Avant Edenfield ); [EOD Date 2/28/00 copies served. (ssl) Modified on 02/28/2000 (Entered: 02/28/2000)
95 MOTION by Tracy Miller to Extend Time to file objections to R & R with brief in support. (slt) (Entered: 03/24/2000)
96 ORDER dismissing [95−1] motion to Extend Time to file objections to R & R as Judge Edenfield has adopted the R&R as the Order of the Court. ( signed by Magistrate Judge James E. Graham ); [EOD Date 3/29/00 copies served. (ddc) (Entered: 03/29/2000)
97 Emergency MOTION by Tracy Miller for Preliminary Injunction , and for Protective Order with brief in support. (jgb) (Entered: 07/06/2000)
98 Emergency MOTION by Tracy Miller for Preliminary Injunction , and for Retaliation Protective Order with brief in support. (kts) (Entered: 08/07/2000)
99 ORDER denying [97−1] motion for Preliminary Injunction, denying [97−2] motion for Protective Order denying [98−1] motion for Preliminary Injunction, denying [98−2] motion for Retaliation Protective Order ( signed by Judge B. Avant Edenfield ); [EOD Date 8/31/00] copies served. (nys) (Entered: 08/31/2000)
100 MOTION by Tracy Miller for Emergency Preliminary Injunction protective Order reserve status quo F.R.C.P(65) with brief in support. (kts) (Entered: 04/20/2001)
101 MOTION by Tracy Miller for assistance , and to inspect and retain reclaim exhibits with brief in support. (kts) (Entered: 05/03/2001)
102 ORDER denying [100−1] motion for Emergency Preliminary Injunction protective Order reserve status quo F.R.C.P(65) ( signed by Judge B. Avant Edenfield ); [EOD Date 5/17/01] copies served. (ww1) (Entered: 05/17/2001)
103 ORDER denying [101−1] motion for assistance, denying [101−2] motion to inspect and retain reclaim exhibits ( signed by Magistrate Judge James E. Graham ); [EOD Date 5/24/01] copies served. (slt) (Entered: 05/24/2001)

Case: 6:98-cv-109 As of: 06/18/2019 01:24 PM EDT 20 of 53

06/26/2001 07/06/2001 07/16/2001 07/16/2001 07/17/2001 07/23/2001 07/27/2001 07/30/2001 09/07/2001 09/10/2001 09/21/2001
10/22/2001 11/08/2001 11/08/2001 11/08/2001 11/12/2001 11/12/2001 11/19/2001
12/03/2001
12/03/2001 12/05/2001
12/05/2001 12/10/2001
12/13/2001

104 MOTION by Tracy Miller for Preliminary Injunction with brief in support. (ssl) (Entered: 06/27/2001)
105 ORDER denying [104−1] motion for Preliminary Injunction ( signed by Judge B. Avant Edenfield ); [EOD Date 7/6/01] copies served. (dks) (Entered: 07/06/2001)
106 NOTICE OF APPEAL by Tracy Miller . ; copies served. [105−1] order (nys) (Entered: 07/17/2001)
107 MOTION by Tracy Miller to Proceed in Forma Pauperis with brief in support. (nys) (Entered: 07/17/2001)
Notice of Appeal and certified copy of docket to USCA: [106−1] appeal by Tracy Miller (nys) (Entered: 07/17/2001)
108 ORDER denying [107−1] motion to Proceed in Forma Pauperis ( signed by Judge B. Avant Edenfield ); [EOD Date 7/23/01] copies served. (ssl) (Entered: 07/23/2001)
USCA Case Number Re: [106−1] appeal by Tracy Miller USCA NUMBER: 01−14028I (kts) (Entered: 07/27/2001)
109 MOTION by Tracy Miller for the District Court to clarify its ambigious Order dated 07/22/01 with brief in support. (kts) (Entered: 07/30/2001)
110 Consent on Appeal by Prisoner to collection of fees filed by plaintiff Tracy Miller (kts) (Entered: 09/10/2001)
Original papers mailed to USCA this dated (kts) (Entered: 09/10/2001)
111 ORDER denying [109−1] motion for the District Court to clarify its ambigious Order dated 07/22/01 ( signed by Judge B. Avant Edenfield ); [EOD Date 9/21/01] copies served. (ssl) (Entered: 09/21/2001)
178 CONSENT to trial by Magistrate by Tracy Miller (nys) (Entered: 08/01/2002)
112 ORDER that pltf has consented to trial by the Magistrate. ( signed by Judge B. Avant Edenfield ); [EOD Date 11/8/01] copies served. (bcw) (Entered: 11/08/2001)
CASE reassigned to Magistrate Judge James E. Graham (bcw) (Entered: 11/08/2001)
CASE NO LONGER REFERRED TO Magistrate Judge James E. Graham (bcw) (Entered: 11/08/2001)
113 WITNESS LIST by Tracy Miller (ssl) (Entered: 11/12/2001)
114 Exhibit list by Tracy Miller (ssl) (Entered: 11/12/2001)
115 NOTICE of Consent to trial before the Magistrate Judge by Ronald King, Wayne Garner, State of Georgia, GA Dept of Corr, Johnny . Sikes (cmk) (Entered: 11/19/2001)
116 USCA ORDER denying leave to proceed; appellant may file a motion for reconsideration within 35 days of the date of this order (); [EOD Date 12/4/01] copies served. (ssl) (Entered: 12/04/2001)
Record on Appeal returned from U.S. Court of Appeals: [106−1] appeal (ssl) (Entered: 12/04/2001)
117 SUPPLEMENTAL MOTION by Ronald King, Wayne Garner, State of Georgia, GA Dept of Corr, Johnny . Sikes for Summary Judgment with brief in support. (cmk) (Entered: 12/05/2001)
118 NOTICE issued re: [117−1] motion for Summary Judgment (cmk) (Entered: 12/05/2001)
119 RESPONSE by Tracy Miller in opposition to [117−1] motion for Summary Judgment by Johnny Sikes, GA Dept of Corr, State of Georgia, Wayne Garner, Ronald King (ww1) (Entered: 12/10/2001)
120 MOTION by Tracy Miller for Preliminary Injunction Protected Order with brief in support. (ssl) (Entered: 12/13/2001)

Case: 6:98-cv-109 As of: 06/18/2019 01:24 PM EDT 21 of 53

12/17/2001 01/11/2002
01/11/2002
01/18/2002 01/22/2002 01/22/2002 01/22/2002 01/22/2002 01/22/2002 01/25/2002
01/28/2002 01/28/2002 01/28/2002 01/28/2002 01/28/2002 01/28/2002 01/29/2002
02/01/2002

121 RESPONSE by Tracy Miller in opposition to Defendants' Motion for Supplemental Sumary Judgment Mtion to Clarify Consent (ssl) (Entered: 12/17/2001)
122 USCA ORDER dismissing appeal for want of prosecution because the appellant has failed to file a motion for reconsideration within 35 dys of the entry of the order finding this appeal frivolous; [EOD Date 1/11/02] copies served. (kts) (Entered: 01/11/2002)
123 CORRECTED USCA ORDER dismissing appeal for want of prosecution because the appellant has failed to file a motion for reconsideration within 35 days of the entry of the order finding this appeal frivolous fixed by the rules. (); [EOD Date 1/14/02] copies served. (ssl) (Entered: 01/14/2002)
184 Witness and Exhibit list by Tracy Miller (bcw) (slt). (Entered: 10/21/2002)
124 MOTION by Tracy Miller to issue subpoenas or writs of habeas corpus ad testificandum for his witnesses for trial February 13, 2002, five pages, 14 subpoenas with brief in support. (ssl) (Entered: 01/22/2002)
125 MOTION by Tracy Miller for Temporary Restraining Order for him and all his witnesses with brief in support. (ww1) (Entered: 01/22/2002)
126 MOTION by Tracy Miller for some quidance with brief in support. (ww1) (Entered: 01/22/2002)
127 MOTION by Tracy Miller to cure defects in witnesses list with brief in support. (ww1) (Entered: 01/22/2002)
128 MOTION by Tracy Miller to Compel the defendant to produce plaintiff with a copy of their witness list and any evidence it intends to use at trial with brief in support. (ww1) (Entered: 01/22/2002)
129 RESPONSE by Ronald King, Wayne Garner, State of Georgia, GA Dept of Corr, Johnny . Sikes to [124−1] motion to issue subpoenas or writs of habeas corpus ad testificandum for his witnesses for trial February 13, 2002, five pages, 14 subpoenas by Tracy Miller (slt) (slt). (Entered: 01/25/2002)
130 SUPPLEMENTAL MOTION by Tracy Miller for issue of subpoenas or writ of Habeas Corpus Ad Testificandum for an indigent civil litigant Rule HISI with brief in support. (ww1) (Entered: 01/28/2002)
131 MOTION by Tracy Miller for Preliminary Injunction , or for Protective Order with brief in support. (ww1) (Entered: 01/28/2002)
132 REQUEST TO CHARGE by Tracy Miller (ww1) (Entered: 01/28/2002)
133 MOTION by Tracy Miller for subpoenas with brief in support. (Filed 1/22/02 in Brunswick.) (slt) (Entered: 01/29/2002)
134 MOTION by Tracy Miller for Protective Order with brief in support. (Filed 1/22/02 in Brunswick.) (slt) (slt). (Entered: 01/29/2002)
134 OBJECTION by plaintiff Tracy Miller to unracially mixed jurors. (slt) (Entered: 01/29/2002)
135 ORDER granting [117−1] motion for Summary Judgment; summary judgment granted as to State of Georgia and Georgia Department of Corrections on claim that they violated his rights under Americans with Disabilities Act; summary judgment granted as to Deft King on claim that he violated pltf's rights under Americans with Disabilites Act; determining that only remaining claim is against deft King for retaliation and due process violations in prison disciplinary hearings. ( signed by Magistrate Judge James E. Graham ); [EOD Date 1/29/02] copies served. (slt) (Entered: 01/29/2002)
136 ORDER to the Warden of Georgia State Prison, Reidsville, Georgia Writ to Obtain Prisoner Tracy Anthony Miller, EF−241919, from Georgia State Prison, Reidsville, GA, to appear U.S. Courthouse,, Courtroom, 52 North Main Street, Statesboro, Georgia, on 2/13/02 at 8:30 a.m. ( signed by Magistrate Judge James E. Graham ); [EOD Date 2/1/02] copies served. (nys) (Entered: 02/01/2002)

Case: 6:98-cv-109 As of: 06/18/2019 01:24 PM EDT 22 of 53

02/01/2002 02/01/2002
02/01/2002 02/01/2002 02/04/2002 02/04/2002 02/04/2002 02/06/2002 02/06/2002 02/06/2002
02/06/2002
02/06/2002 02/06/2002 02/06/2002
02/06/2002 02/07/2002 02/07/2002 02/11/2002 02/13/2002

Deadline updated; set Jury Selection for 8:30 2/13/02 before Magistrate Judge James E. Graham (nys) (Entered: 02/01/2002)
137 RESPONSE by Ronald King to [128−1] motion to Compel the defendant to produce plaintiff with a copy of their witness list and any evidence it intends to use at trial by Tracy Miller, [127−1] motion to cure defects in witnesses list by Tracy Miller, [126−1] motion for some quidance by Tracy Miller, [125−1] motion for Temporary Restraining Order for him and all his witnesses by Tracy Miller, [120−1] motion for Preliminary Injunction Protected Order by Tracy Miller (cmk) (Entered: 02/01/2002)
138 Voir Dire Questions by Ronald King (cmk) (Entered: 02/01/2002)
139 REQUEST TO CHARGE by Ronald King (cmk) (Entered: 02/01/2002)
140 WITNESS LIST by Tracy Miller (slt) (Entered: 02/04/2002)
141 MOTION by Tracy Miller for Judgment as a Matter of Law with brief in support. (slt) (Entered: 02/04/2002)
142 RESPONSE by plaintiff Tracy Miller to Defendants opposition to Plaintiff's motion for subpoenas or writs or Habeas Corpus Ad Testificandum/motion in Limine (ww1) (Entered: 02/04/2002)
143 ORDER denying [141−1] motion for Judgment as a Matter of Law ( signed by Magistrate Judge James E. Graham ); [EOD Date 2/6/02] copies served. (jsr) (Entered: 02/06/2002)
144 ORDER denying [126−1] motion for some quidance ( signed by Magistrate Judge James E. Graham ); [EOD Date 2/6/02] copies served. (jsr) (Entered: 02/06/2002)
145 ORDER dismissing [128−1] motion to Compel the defendant to produce plaintiff with a copy of their witness list and any evidence it intends to use at trial ( signed by Magistrate Judge James E. Graham ); [EOD Date 2/6/02] copies served. (jsr) (Entered: 02/06/2002)
146 ORDER granting portion of [127−1] motion to cure defects in witnesses list, Pltf request to issue a writ for inmate Goodman and the remainder of Pltf's motion to amd his witness list, so as to delete requested witnesses is granted ( signed by Magistrate Judge James E. Graham ); [EOD Date 2/6/02] copies served. (jsr) (Entered: 02/06/2002)
147 ORDER denying [125−1] motion for Temporary Restraining Order for him and all his witnesses ( signed by Magistrate Judge James E. Graham ); [EOD Date 2/6/02] copies served. (jsr) (Entered: 02/06/2002)
148 ORDER denying [130−1] motion for issue of subpoenas or writ of Habeas Corpus Ad Testificandum for an indigent civil litigant Rule HISI ( signed by Magistrate Judge James E. Graham ); [EOD Date 2/6/02] copies served. (jsr) (Entered: 02/06/2002)
149 ORDER denying [124−1] motion to issue subpoenas or writs of habeas corpus ad testificandum for his witnesses for trial February 13, 2002, five pages, 14 subpoenas ( signed by Magistrate Judge James E. Graham ); [EOD Date 2/6/02] copies served. (jsr) (Entered: 02/06/2002)
150 ORDER denying [131−1] motion for Preliminary Injunction ( signed by Magistrate Judge James E. Graham ); [EOD Date 2/6/02] copies served. (jsr) (Entered: 02/06/2002)
151 ORDER denying [120−1] motion for Preliminary Injunction Protected Order ( signed by Magistrate Judge James E. Graham ); [EOD Date 2/7/02] copies served. (jsr) (Entered: 02/07/2002)
152 ORDER denying [133−1] motion for subpoenas ( signed by Magistrate Judge James E. Graham ); [EOD Date 2/7/02] copies served. (jsr) (Entered: 02/07/2002)
153 ORDER denying [134−1] motion for Protective Order ( signed by Judge B. Avant Edenfield ); [EOD Date 2/11/02] copies served. (tlw) (Entered: 02/11/2002)
Jury selection held; panel sworn and qualified; trial continued to 2/14/02. (slt) (Entered: 02/15/2002)

Case: 6:98-cv-109 As of: 06/18/2019 01:24 PM EDT 23 of 53

02/14/2002
02/14/2002 02/14/2002 02/14/2002 02/20/2002 02/20/2002 02/25/2002 02/25/2002 04/04/2002
04/15/2002 04/16/2002 04/29/2002
05/08/2002 05/08/2002 05/13/2002 05/13/2002 05/23/2002 06/06/2002
06/10/2002 06/12/2002

Jury Trial held; motion by pltf to continue trial; motion denied; opening statments by pltf; opening statments by deft; pltf sworn and testified on his own behalf; other testimony and evidence entered; closing arguments by pltf and deft; charge to jury; jury deliberated; jury rendered a deft's verdict; verdict published and jury polled; clerk to enter judgment; Court Reporter: Drake Reporting (slt) (Entered: 02/15/2002)
154 Exhibit list by Tracy Miller (slt) (Entered: 02/15/2002)
155 Exhibit list by Ronald King (slt) (Entered: 02/15/2002)
156 JURY VERDICT for Ronald King (slt) (Entered: 02/15/2002)
157 JUDGMENT for Ronald King, Wayne Garner, State of Georgia, GA Dept of Corr, Johnny . Sikes against Tracy Miller ( signed by Magistrate Judge James E. Graham ); [EOD Date 2/20/02] copies served. PLRA Notice mailed. (slt) (Entered: 02/20/2002)
Case closed (slt) (Entered: 02/20/2002)
158 MOTION by Tracy Miller for Judgment as a Matter of Law , or for New Trial with brief in support. (tlw) (slt). (Entered: 02/26/2002)
158 MOTION by Tracy Miller to Extend Time to supplement motion with brief in support. (slt) (Entered: 04/04/2002)
159 ORDER granting [158−1] motion to Extend Time to supplement motion; pltf has until 4/15/02 to file supplement to motion for judgment as a matter of law or in the alternative motion for new trial. ( signed by Magistrate Judge James E. Graham ); [EOD Date 4/4/02] copies served. (slt) (Entered: 04/04/2002)
160 MOTION by Tracy Miller to Extend Time to supplement his motion for JNOV or/in alt motionfor new trial , and for Appointment of Counsel with brief in support. (jsr) (Entered: 04/29/2002)
161 MOTION by Tracy Miller to supplement motion for Judgment as a matter of law motion for new trial with brief in support. (kts) (Entered: 04/17/2002)
162 ORDER granting [160−1] motion to Extend Time to supplement his motion for JNOV or/in alt motionfor new trial, denying [160−2] motion for Appointment of Counsel ( signed by Magistrate Judge James E. Graham ); [EOD Date 4/29/02] copies served. (slt) (Entered: 04/29/2002)
163 RESPONSE by Ronald King, Wayne Garner, State of Georgia, GA Dept of Corr, Johnny . Sikes to [158−1] motion for Judgment as a Matter of Law by Tracy Miller (bmm) (Entered: 05/10/2002)
164 MEMORANDUM by Ronald King, Wayne Garner, State of Georgia, GA Dept of Corr, Johnny Sikes in opposition to [158−1] motion for Judgment as a Matter of Law by Tracy Miller (bmm) (Entered: 05/10/2002)
165 MOTION by Tracy Miller to supplement to his motion for new trial with brief in support. (ww1) (Entered: 05/15/2002)
166 MOTION by Tracy Miller requesting a copy of the trial transcript on February 14, 2002 with brief in support. (ww1) (slt). (Entered: 05/15/2002)
167 ORDER denying [166−1] motion requesting a copy of the trial transcript on February 14, 2002 ( signed by Magistrate Judge James E. Graham ); [EOD Date 5/23/02] copies served. (nys) (Entered: 05/23/2002)
168 ORDER granting [165−1] motion to supplement to his motion for new trial, granting [161−1] motion to supplement motion for Judgment as a matter of law motion for new trial, denying [158−1] motion for Judgment as a Matter of Law, denying [158−2] motion for New Trial ( signed by Magistrate Judge James E. Graham ); [EOD Date 6/6/02] copies served. (slt) (Entered: 06/06/2002)
169 MOTION by Ronald King for Stephen E. Curry to Withdraw as Attorney with brief in support. (cmk) (Entered: 06/11/2002)
170 AFFIDAVIT and authorization for withdrawal from inmate account by Tracy Miller (ww1) (Entered: 06/12/2002)

Case: 6:98-cv-109 As of: 06/18/2019 01:24 PM EDT 24 of 53

06/12/2002 06/12/2002 06/17/2002 06/17/2002 06/17/2002 06/21/2002 06/26/2002 07/03/2002 07/23/2002 07/29/2002
08/02/2002 08/19/2002 08/28/2002 09/23/2002 10/09/2002
10/21/2002 11/21/2002 11/21/2002 01/03/2003
01/08/2003

171 NOTICE OF APPEAL by Tracy Miller; copies served. [168−1] order (ww1) (Entered: 06/12/2002)
Notice of Appeal and certified copy of docket to USCA: [171−1] appeal by Tracy Miller (ww1) (Entered: 06/12/2002)
172 Appeal Information Sheet Re: [171−1] appeal: Ordering trial transcript (kts) (Entered: 06/17/2002)
173 ORDER granting [169−1] motion for Stephen E. Curry to Withdraw as Attorney (Terminated attorney Stephen E. Curry for Ronald King ( signed by Magistrate Judge James E. Graham ); [EOD Date 6/17/02] copies served. (jsr) (Entered: 06/17/2002)
USCA Case Number Re: [171−1] appeal by Tracy Miller USCA NUMBER: 02−13348A (kts) (Entered: 06/26/2002)
174 ORDER denying to proceed IFP on appeal, appeal is frivolous and w/out merit. Court will not require the preparation of tanscript ( signed by Magistrate Judge James E. Graham ); [EOD Date 6/21/02] copies served. (jsr) (Entered: 06/21/2002)
175 MOTION by Tracy Miller in compliance to clarify w/court's order denying his motion for IFP with brief in support. (kts) (Entered: 06/27/2002)
176 NOTICE of Attorney Appearance for Ronald King, State of Georgia, GA Dept of Corr by David V. Weber (cmk) (Entered: 07/03/2002)
Original Papers mailed to USCA this date(4 volumes) (kts) (Entered: 07/23/2002)
177 ORDER dismissing [175−1] motion in compliance to clarify w/court's order denying his motion for IFP; directing clerk to forward to pltf the necessary consent form along with this order; overruling pltf's objection to 6/21/02 order denying IFP status on appeal. ( signed by Magistrate Judge James E. Graham ); [EOD Date 7/29/02] copies served. (slt) (Entered: 07/29/2002)
179 Consent by Prisoner to collection of fees on appeal filed by plaintiff Tracy Miller . (kts) (Entered: 08/06/2002)
180 MOTION by Tracy Miller for assistance in getting copy of his original exhibit with brief in support. (ww1) (Entered: 08/21/2002)
Original papers mailed to USCA(file reconstructed) (bcw) (Entered: 08/28/2002)
181 USCA ORDER granting leave to proceed, denying motion for appointment of counsel, and granting motion for transcripts at government expense; [EOD Date 9/25/02] copies served. (ww1) (Entered: 09/25/2002)
182 ORDER dismissing [180−1] Plaintiff's motion to Clarify and Dual Motion to Relciam" his original exhibits. As Plaintiff filed an appeal of the Judgment entered in this case to the Eleventh Circuit Court, Appeals, his entire file is with that Court. ( signed by Magistrate Judge James E. Graham ); [EOD Date 10/9/02] copies served. (nys) (Entered: 10/09/2002)
183 TRANSCRIPT for trial for the dates of February 14, 2002. (wwp) (Additional attachment(s) added on 12/8/2011: # 1 pages 1−50, # 2 pages 51−100, # 3 pages 101−131) (slt). (Entered: 10/21/2002)
FORWARDED to Lora Carter Tape Nos. 99−12 to 99−17. (lgl) (Entered: 11/21/2002)
185 USCA ORDER granting appellant's motion for clarification; [EOD Date 11/21/02] copies served. (kts) (Entered: 11/21/2002)
186 TRANSCRIPT of Hearing on Plaintiff's motion for emergency temporary injunction, retalitory order and protective order for dates of 2/17/99 (ww1) (Additional attachment(s) added on 12/8/2011: # 1 pages 1−50, # 2 pages 51−100, # 3 pages 101−150, # 4 pages 151−200, # 5 pages 201−250, # 6 pages 251−300, # 7 pages 301−323) (slt). (Entered: 01/03/2003)
RECEIVED audio tape Nos. 99−13 to 99−17, from Savannah. (lgl) (Entered: 01/08/2003)

Case: 6:98-cv-109 As of: 06/18/2019 01:24 PM EDT 25 of 53

01/09/2003 05/29/2003
05/30/2003 07/17/2003 07/17/2003 09/17/2004
02/07/2005 06/27/2006 07/07/2006 09/15/2006
09/21/2006 09/21/2006 09/21/2006 10/18/2006
11/09/2006 11/13/2006
11/15/2006
11/15/2006 11/20/2006 12/11/2006 12/29/2006

Original Papers returned to U. S. District Court this date (ww1) (Entered: 01/10/2003)
187 USCA ORDER granting motion to compel compliance of lawful Court Order and motion to clarify and motion for assistance. The court reporter is directed to privide Appellant with a copy of the transcript. and (); [EOD Date 5/29/03] copies served. (wwp) (Entered: 05/29/2003)
ADVISED that the transcript of the 2/18/99 P.I. hrg was sent to plaintiff. (lgl) (Entered: 06/04/2003)
CERTIFICATE OF READINESS to USCA: [171−1] appeal by Tracy Miller (kts) (Entered: 07/17/2003)
Certified and transmitted Record on Appeal to U.S. Court of Appeals: [171−1] appeal by Tracy Miller (kts) (Entered: 07/17/2003)
Note: The Clerk received a change of address notice from Tracy A. Miller stating that he was now housed at Men's State Prison, P.O. Box 396, Hardwick, Georgia 31034. Address has been updated. (jah) (Entered: 09/17/2004)
Original papers returned 2/7/05 (Four volumes of pleadings) Reconstructed file still at USCA for appeal. (nys) Modified on 04/18/2005 (Entered: 02/08/2005)
188 MOTION to Appoint Counsel by Tracy Miller. REFERRED to Judge Graham.(bcw) (Entered: 06/29/2006)
189 ORDER denying 188 Motion to Appoint Counsel . Signed by Judge James E. Graham on 7/7/06. (jsr) (Entered: 07/07/2006)
190 MANDATE of USCA as to 171 Notice of Appeal filed by Tracy Miller Affirmed in Part, Vacated and Remanded in part. (bcw) Modified on 9/19/2006 (bcw). (Entered: 09/19/2006)
191 ORDER making the judgment of USCOA the judgment of this Court . Signed by Judge James E. Graham on 9/21/06. (slt) (Entered: 09/21/2006)
192 ORDER appointing Sarah M. Shalf to represent pltf in this action. Signed by Judge James E. Graham on 9/21/06. (slt) (Entered: 09/21/2006)
193 ORDER directing pltf to amend complaint w/in 60 days of date of this order . Signed by Judge James E. Graham on 9/21/06. (slt) (Entered: 09/21/2006)
194 MOTION to renew motion to appoint counsel, for preliminary hearing injunction protectiver to enforce 11th Circuits order Millver V. King by Tracy Miller. Responses due by 11/2/2006 (slt) (Entered: 10/18/2006)
PRO HAC VICE PAID by Sarah M. Shalf for Tracy Miller; Amount 200.00 Receipt # 410437 Date: 11/13/06 (evb) (Entered: 11/13/2006)
195 MOTION for Leave to Appear Pro Hac Vice by Sarah M. Shalf for Tracy Miller . Responses due by 11/28/2006 (evb) Additional attachment(s) added on 11/13/2006 (evb). (Entered: 11/13/2006)
196 ORDER dismissing 194 Motion to appoint Counsel for any preliminary hrg injunction protectiver (sic) to enforce the 11th circuits order, clerk is directed to forward a cy of pltf's instant motion to Sarah M. Shalf along w/cy of this Order.. Signed by Judge James E. Graham on 11/15/06. (jsr) (Entered: 11/15/2006)
197 ORDER granting 195 Motion by Attorney Sarah M. Shalf for Leave to Appear pro hac vice . Signed by Judge James E. Graham on 11/15/06. (jsr) (Entered: 11/15/2006)
198 AMENDED COMPLAINT against all defendants, filed by Tracy Miller.(jsr) (Entered: 11/20/2006)
199 MOTION for Preliminary Injunction by Tracy Miller. Responses due by 12/26/2006 (CA) (Entered: 12/11/2006)
200 AFFIDAVIT by Tracy Miller. (Titled "Plaintiff Miller's Cover Letter.") (slt) (Entered: 12/29/2006)

Case: 6:98-cv-109 As of: 06/18/2019 01:24 PM EDT 26 of 53

01/02/2007 01/04/2007 01/09/2007 01/18/2007 01/23/2007
02/09/2007 02/09/2007 02/09/2007 02/23/2007 03/01/2007 03/12/2007 03/26/2007 03/27/2007 04/02/2007 05/03/2007 05/07/2007 06/28/2007 07/03/2007 07/24/2007

201 MOTION for Preliminary Injunction, MOTION for Protective Order by Tracy Miller. Responses due by 1/17/2007 REFERRED to Judge Graham.(CA) (Entered: 01/03/2007)
202 NOTICE of Filing of Exhibits by Tracy Miller re 201 MOTION for Preliminary Injunction MOTION for Protective Order (evb) (Entered: 01/04/2007)
203 ORDER dismissing 199 Motion for Preliminary Injunction, dismissing 201 Motion for Preliminary Injunction, dismissing 201 Motion for Protective Order . Signed by Judge James E. Graham on 1/9/07. (jsr) (Entered: 01/09/2007)
204 CONSENT MOTION for Extension of Time to File Answer re 198 Amended Complaint (mah) (Entered: 01/18/2007)
205 ORDER granting 204 Motion for Extension of Time to Answer Ronald King answer due 2/9/2007; The State of Georgia answer due 2/9/2007; The Georgia Department of Corrections answer due 2/9/2007; Johnny Sikes answer due 2/9/2007. . Signed by Judge James E. Graham on 1/23/2007. (CA) (Entered: 01/23/2007)
206 NOTICE of Appearance by Pattie J. Williams on behalf of Ronald King, The State of Georgia, The Georgia Department of Corrections, Johnny Sikes (wwp) (Entered: 02/09/2007)
207 Defendants' pre−answer MOTION to Dismiss by Ronald King, The State of Georgia, The Georgia Department of Corrections, Johnny Sikes. Responses due by 2/26/2007 (wwp) Modified text on 6/23/2009 (rra). (Entered: 02/09/2007)
208 MEMORANDUM in Support re 207 MOTION to Dismiss filed by Ronald King, The State of Georgia, The Georgia Department of Corrections, Johnny Sikes. (Attachments: # 1 # 2)(wwp) (Entered: 02/09/2007)
209 CONSENT MOTION for Extension of Time to File Response/Reply as to 207 MOTION to Dismiss, 208 Memo in Support of Motion by Tracy Miller. REFERRED to Judge Graham.(CA) (Entered: 02/23/2007)
210 ORDER granting 209 Motion for Extension of Time to File Response/Reply re 207 MOTION to Dismiss Responses due by 3/12/2007. Signed by Judge James E. Graham on 3/1/2007. (CA) (Entered: 03/01/2007)
211 RESPONSE to Motion re 207 MOTION to Dismiss filed by Tracy Miller. (Attachments: # 1 Exhibit)(slt) (Entered: 03/12/2007)
212 MOTION for Leave to File Excess Pages by Ronald King, The State of Georgia, The Georgia Department of Corrections, Johnny Sikes. Responses due by 4/10/2007 REFERRED to Judge Graham.(mah) (Entered: 03/26/2007)
213 ORDER granting 212 Motion for Leave to File Excess Pages . Signed by Judge James E. Graham on 3/27/2007. (CA) (Entered: 03/27/2007)
214 BRIEF IN REPLY to Response to Motion re 207 MOTION to Dismiss filed by Ronald King, The State of Georgia, The Georgia Department of Corrections, Johnny Sikes. (mah) (Entered: 04/02/2007)
215 MOTION for Extension of Time to File Reply as to 207 MOTION to Dismiss by Ronald King, The State of Georgia, The Georgia Department of Corrections, Johnny Sikes. (slt) (Entered: 05/03/2007)
216 ORDER dismissing 215 Motion for Extension of Time to File Response. Signed by Judge James E. Graham on 5/7/07. (slt) (Entered: 05/07/2007)
217 MOTION for Leave of Absence For dates of : 7/5/2007−8/17/2007 by Pattie J. Williams on behalf of Ronald King, The State of Georgia, The Georgia Department of Corrections, Johnny Sikes. (mah) (Entered: 06/29/2007)
218 ORDER granting 217 Motion for Leave of Absence. Signed by Judge James E. Graham on 07/03/2007. (CRA) (Entered: 07/03/2007)
219 ORDER granting in part and denying in part 207 Motion to Dismiss; granting in part to extent that pltf asserts ADA or RA claims against individual defts in their individual capacites, or 1983 claims for damages against state defts or individual defts in their

Case: 6:98-cv-109 As of: 06/18/2019 01:24 PM EDT 27 of 53

07/24/2007 07/24/2007
08/06/2007 08/10/2007
10/25/2007 10/26/2007 11/01/2007 11/01/2007
11/02/2007 11/02/2007 11/05/2007
11/06/2007 01/03/2008
01/04/2008 01/10/2008
01/11/2008
01/11/2008 01/30/2008
02/18/2008

official capacities; denying motion in all other respects; converting remainder of motion to dismiss into a motion for summary judgment as it pertains to 3 issues; parties shall have 20 days from receipt of this order to file any desired additional documents on these issues. Signed by Judge James E. Graham on 7/24/07. (slt) (Entered: 07/24/2007)
Set/Reset Deadlines as to 207 MOTION to Dismiss. Responses due by 8/16/2007 (slt) (Entered: 07/24/2007)
220 NOTICE of motion issued re 207 MOTION to Dismiss remainder converted to motion for summary judgment; response to portion of motion converted to motion for summary judgment due 8/16/07. (slt) (Entered: 07/24/2007)
221 CONSENT MOTION to Stay Proceedings by Ronald King, The State of Georgia, The Georgia Department of Corrections, Johnny Sikes. (mah) (Entered: 08/07/2007)
222 ORDER STAYING CASE until 11/1/2007 at which time the parties will provide a status report to the Court. Signed by Judge James E. Graham on 8/10/2007. (CA) (Entered: 08/10/2007)
223 MOTION to Intervene and for Certification as Class Action by Ernest Howard, Sr. (CRA) (Entered: 10/25/2007)
224 ORDER denying 223 Motion to Intervene. Signed by Judge James E. Graham on 10/26/2007. (CRA) (Entered: 10/26/2007)
225 NOTICE of Appearance by Jeffrey O. Bramlett on behalf of Tracy Miller (Bramlett, Jeffrey) (Entered: 11/01/2007)
226 Consent MOTION to Stay re 222 Order Staying Case by Tracy Miller. Responses due by 11/19/2007 (Attachments: # 1 Text of Proposed Order)(Shalf, Sarah) (Entered: 11/01/2007)
227 MOTION for Reconsideration re 224 Order on Motion to Intervene by Tracy Miller. Responses due by 11/23/2007 (CA) (Entered: 11/02/2007)
228 ORDER granting 226 Motion to Stay, this matter is hereby stayed until 1/14/08. Signed by Judge James E. Graham on 11/2/2007. (CA) (Entered: 11/02/2007)
229 ORDER denying 227 Motion for Reconsideration. The Order dated 10/26/07, shall remain the Order of the Court. Signed by Judge James E. Graham on 11/5/2007. (CA) (Entered: 11/05/2007)
Set/Reset Deadlines: Status Report due by 1/14/2008 pursuant to 11/2/07 order. (slt) (Entered: 11/06/2007)
230 MOTION for Leave of Absence as to Tracy Miller For dates of : January 4 through January 11, 2008 by Tracy Miller. Responses due by 1/22/2008 (Attachments: # 1 Text of Proposed Order)(Shalf, Sarah) (Entered: 01/03/2008)
231 ORDER granting 230 Motion for Leave of Absence for Attorney Sarah M. Shalf. Signed by Judge James E. Graham on 1/4/2008. (ca) (Entered: 01/04/2008)
232 Consent MOTION to Stay re 228 Order on Motion to Stay by Tracy Miller. Responses due by 1/28/2008 (Attachments: # 1 Text of Proposed Order)(Shalf, Sarah) (Entered: 01/10/2008)
233 ORDER granting 232 Motion to Stay until February 15, 2008, at which time the parties will provide a status report to the Court. Signed by Judge James E. Graham on 1/11/2008. (csr) (Entered: 01/11/2008)
Set Deadlines/Hearings: Status Report due by 2/15/2008. (csr) (Entered: 01/11/2008)
234 NOTICE of Hearing: Status Conference set for 2/21/2008 09:00 AM in Statesboro − 1st Floor Courtroom before Magistrate Judge James E. Graham. (rra) (Entered: 01/30/2008)
235 STATUS REPORT − Joint by Ronald King, The State of Georgia, The Georgia Department of Corrections, Johnny Sikes. (Williams, Pattie) (Entered: 02/18/2008)

Case: 6:98-cv-109 As of: 06/18/2019 01:24 PM EDT 28 of 53

02/19/2008 02/21/2008 03/03/2008 03/06/2008
03/10/2008 03/14/2008 03/17/2008
03/17/2008 03/25/2008
03/27/2008 04/03/2008 04/04/2008 04/08/2008 04/08/2008 04/08/2008

236 AMENDED NOTICE rescheduling status conference for 10:00 a.m., on Thursday, February 21, 2008. (rra) (Entered: 02/19/2008)
237 Minute Entry for proceedings held before Judge James E. Graham : Status Conference held on 2/21/2008. Conference call scheduled for March 25, 2008, 10:00 a.m. for status report. (Tape #08−01.) (rra) (Entered: 02/21/2008)
238 MOTION Emergency Request for Assistance in Getting Help or Intouch with Lawyer by Tracy Miller. (Attachments:(1)Grievance Slip, (2)Envelope)REFERRED to Judge James E. Graham.(ca) (Entered: 03/03/2008)
239 RESPONSE to Motion re 238 MOTION Emergency Request for Assistance in Getting Help or Intouch with Lawyer filed by Ronald King, The State of Georgia, The Georgia Department of Corrections, Johnny Sikes. (Attachments: # 1 Exhibit A to Defs' Response to Plaintiff's Request for Assistance, # 2 Exhibit B to Defs' Response to Plaintiff's Request for Assistance, # 3 Exhibit C to Defs' Response to Plaintiff's Request for Assistance)(Williams, Pattie) (Entered: 03/06/2008)
240 REPLY to Response to Motion re 238 MOTION Emergency Request for Assistance in Getting Help or Intouch with Lawyer filed by Tracy Miller. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5)(Shalf, Sarah) (Entered: 03/10/2008)
241 ORDER dismissing 238 Motion Emergency Request for Assistnace in Getting Help or In Touch with Attorney. Signed by Magistrate Judge James E. Graham on 3/14/2008. (ca) (Entered: 03/14/2008)
242 CONSENT SCHEDULING ORDER; This case shall be stayed pending further action of the Court. Plaintiff shall have until March 21, 2008 to locate and identify to the State a medical expert to identify Tracy Miller's current condition; The parties will have a telephone conference with the Court on March 25, 2008 at 10:00 a.m. Signed by Magistrate Judge James E. Graham on 3/17/2008. (csr) (Entered: 03/17/2008)
Set/Reset Deadlines: Notice of Compliance due by 3/21/2008. (csr) (Entered: 03/17/2008)
243 MOTION to Require Plaintiff To Submit To A Comprehensive Medical Exam by Ronald King, The State of Georgia, The Georgia Department of Corrections, Johnny Sikes. Responses due by 4/14/2008 (Attachments: # 1 Briefs In Support Of Defs' Motion to Require Plaintiff To Submit To A Comprehensive Medical Exam, # 2 Exhibit 1 to Brief In Support Of Defs' Motion to Require Plaintiff To Submit To A Comprehensive Medical Exam, # 3 Text of Proposed Order)(Williams, Pattie) (Entered: 03/25/2008)
244 Minute Entry for proceedings held before Judge Magistrate Judge James E. Graham: Telephone Conference held on 3/25/2008. (rra) Modified date on 3/27/2008 (rra). (Entered: 03/27/2008)
245 MOTION for Leave of Absence as to Tracy Miller For dates of : April 5−13, 2008 by Tracy Miller. Responses due by 4/21/2008 (Attachments: # 1 Text of Proposed Order)(Shalf, Sarah) (Entered: 04/03/2008)
246 RESPONSE to Motion re 243 MOTION to Require Plaintiff To Submit To A Comprehensive Medical Exam filed by Tracy Miller. (Shalf, Sarah) (Entered: 04/04/2008)
247 REPLY to Response to Motion re 243 MOTION to Require Plaintiff To Submit To A Comprehensive Medical Exam filed by Ronald King, The State of Georgia, The Georgia Department of Corrections, Johnny Sikes. (Williams, Pattie) (Entered: 04/08/2008)
248 ORDER dismissing 243 Motion to require pltf to submit to a comprehensive medical exam; directing parties to submit proposed scheduling order to Court by 5/1/08. Signed by Magistrate Judge James E. Graham on 4/8/08. (slt) (Entered: 04/08/2008)
Set/Reset Deadlines: parties to submit proposed scheduling order pursuant to #248. Notice of Compliance due by 5/1/2008. (slt) (Entered: 04/08/2008)

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04/25/2008 05/02/2008 05/05/2008
05/14/2008 05/14/2008 05/14/2008 05/15/2008
05/16/2008 05/16/2008
05/16/2008 05/16/2008 05/20/2008
05/27/2008 05/27/2008 05/28/2008
05/28/2008 05/28/2008

249 ORDER dismissing as moot 245 Motion for Leave of Absence. Signed by Magistrate Judge James E. Graham on 4/25/2008. (csr) (Entered: 04/25/2008)
250 TRANSCRIPT of Status Conference Proceedings held on February 21, 2008 before Judge James E. Graham. Court Reporter: FTR. (Transcript Redaction Policy Issued) (Mobley, Joan) (Entered: 05/02/2008)
251 SCHEDULING ORDER: Stay Lifted − Discovery due by 11/3/2008. Motions due by 12/3/2008. Expert Witness Report (Plaintiff) due by 8/5/2008. Expert Witness Report (defendant) due by 9/4/2008.. Signed by Magistrate Judge James E. Graham on 5/5/2008. (ca) Modified text on 6/23/2009 (rra). (Entered: 05/05/2008)
252 Consent SCHEDULING ORDER: State Brief and documents supporting summary judgment due by 5/16/2008.. Signed by Magistrate Judge James E. Graham on 5/14/2008. (ca) (Entered: 05/14/2008)
Set/Reset Deadlines: Plft Responsive Brief and supporting documents in complaince w/Rule 56 and applicable LR due by 6/5/2008. (ca) (Entered: 05/14/2008)
Set/Reset Deadlines: State Reply Brief, if any due by 6/19/2008. (ca) (Entered: 05/14/2008)
253 Defendants' ANSWER to Amended Complaint and Defenses by Hugh Smith, Steve Roberts, Carolyn Mailloux, Lisa Waters Johnson, Victor L. Walker, Dennis Brown, James Donald, Joseph Paris, Georgia State Prison, Augusta State Medical Prison, Ronald King, Wayne Garner, The State of Georgia, The Georgia Department of Corrections, Johnny Sikes.(Williams, Pattie) (Entered: 05/15/2008)
254 Supplemental MOTION for Partial Summary Judgment by The Georgia Department of Corrections. Responses due by 6/11/2008 (Attachments: # 1 Stmt of Material Fact)(Williams, Pattie) (Entered: 05/16/2008)
255 Brief in support of Supplemental MOTION for Partial Summary Judgment by The Georgia Department of Corrections. Responses due by 6/11/2008 (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Attachment 1, # 4 Attachment 2, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit, # 10 Exhibit, # 11 Exhibit)(Williams, Pattie) Modified on 8/12/2009 to edit text (slt). (Entered: 05/16/2008)
256 MOTION for Leave to File Excess Pages by The Georgia Department of Corrections. Responses due by 6/3/2008 (Williams, Pattie) (Entered: 05/16/2008)
257 RESPONSE in Opposition re 256 MOTION for Leave to File Excess Pages filed by Tracy Miller. (Shalf, Sarah) (Entered: 05/16/2008)
258 RESPONSE to 257 Response in Opposition to Motion filed by Tracy Miller by Hugh Smith, Steve Roberts, Carolyn Mailloux, Lisa Waters Johnson, Victor L. Walker, Dennis Brown, James Donald, Joseph Paris, Georgia State Prison, Augusta State Medical Prison, Ronald King, The State of Georgia, The Georgia Department of Corrections, Johnny Sikes. (Williams, Pattie) (Entered: 05/20/2008)
259 NOTICE of Appearance by Sarah E. Harrington on behalf of United States Of America (Harrington, Sarah) (Entered: 05/27/2008)
260 NOTICE of Appearance by Delora L. Kennebrew on behalf of United States Of America (Attachments: # 1 Text of Proposed Order order)(Kennebrew, Delora) (Entered: 05/27/2008)
261 ORDER re 260 Notice of Appearance filed by United States Of America; Directing Clerk to add Assistant United States Attorney Delora L. Kennebrew, Jr. as counsel of record for the Intervenor. Signed by Magistrate Judge James E. Graham on 5/28/2008. (csr) (Entered: 05/28/2008)
262 NOTICE by United States Of America of Prior Intervention (Kennebrew, Delora) (Entered: 05/28/2008)
263 RESPONSE to Motion re 255 Supplemental MOTION for Partial Summary Judgment ( Brief In Support )Supplemental MOTION for Partial Summary Judgment ( Brief In Support ), 254 Supplemental MOTION for Partial Summary Judgment filed by United States Of America. (Kennebrew, Delora) (Entered: 05/28/2008)

Case: 6:98-cv-109 As of: 06/18/2019 01:24 PM EDT 30 of 53

06/05/2008
06/05/2008
06/10/2008 06/11/2008 06/16/2008
06/16/2008
06/19/2008
07/28/2008 07/28/2008 07/30/2008 08/04/2008
08/13/2008 08/20/2008 08/21/2008

264 RESPONSE to Motion re 255 Supplemental MOTION for Partial Summary Judgment ( Brief In Support )Supplemental MOTION for Partial Summary Judgment ( Brief In Support ), 254 Supplemental MOTION for Partial Summary Judgment filed by Tracy Miller. (Attachments: # 1 Stmt of Material Fact Response)(Shalf, Sarah) (Entered: 06/05/2008)
265 AFFIDAVIT in Opposition re 255 Supplemental MOTION for Partial Summary Judgment ( Brief In Support )Supplemental MOTION for Partial Summary Judgment ( Brief In Support ), 254 Supplemental MOTION for Partial Summary Judgment Declaration of Tracy Miller filed by Tracy Miller. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L)(Shalf, Sarah) (Entered: 06/05/2008)
266 ORDER granting 256 Motion for Leave to File Excess Pages. Signed by Magistrate Judge James E. Graham on 6/10/2008. (csr) (Entered: 06/10/2008)
267 Letter from Tracy A. Miller (csr) (Additional attachment(s) added on 6/26/2012: # 1 Envelope) (ca). (Entered: 06/11/2008)
268 RESPONSE to 263 Response to Motion, filed by United States Of America by Hugh Smith, Steve Roberts, Carolyn Mailloux, Lisa Waters Johnson, Victor L. Walker, Dennis Brown, James Donald, Joseph Paris, Georgia State Prison, Augusta State Medical Prison, Ronald King, The State of Georgia, The Georgia Department of Corrections, Johnny Sikes. (Williams, Pattie) (Entered: 06/16/2008)
269 OBJECTION to 267 Letter by Hugh Smith, Steve Roberts, Carolyn Mailloux, Lisa Waters Johnson, Victor L. Walker, Dennis Brown, James Donald, Joseph Paris, Georgia State Prison, Augusta State Medical Prison, Ronald King, The State of Georgia, The Georgia Department of Corrections, Johnny Sikes. (Williams, Pattie) (Entered: 06/16/2008)
270 REPLY to Response to Motion re 255 Supplemental MOTION for Partial Summary Judgment ( Brief In Support )Supplemental MOTION for Partial Summary Judgment ( Brief In Support ) filed by Steve Roberts, Carolyn Mailloux, Lisa Waters Johnson, Dennis Brown, James Donald, Joseph Paris, Georgia State Prison, Augusta State Medical Prison, Ronald King. (Attachments: # 1 Exhibit A, # 2 Exhibit Attachment 1, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F)(Williams, Pattie) (Entered: 06/19/2008)
271 MOTION to Consolidate Cases for Discovery with Goodman v. Donald by Tracy Miller. Responses due by 8/15/2008 (Shalf, Sarah) (Entered: 07/28/2008)
272 REPORT of Rule 26(f) Planning Meeting. (Attachments: # 1 Text of Proposed Order Extending Due Date for Expert Reports, # 2 Text of Proposed Order Regarding Confidential Documents)(Shalf, Sarah) (Entered: 07/28/2008)
273 MOTION for Preliminary Injunction by Tracy Miller. Responses due by 8/18/2008 (Attachments: (1) Envelope)REFERRED to Judge James E. Graham.(ca) (Entered: 07/30/2008)
274 Response to Motion re 271 MOTION to Consolidate Cases for Discovery with Goodman v. Donald filed by Hugh Smith, Steve Roberts, Carolyn Mailloux, Lisa Waters Johnson, Victor L. Walker, Dennis Brown, James Donald, Joseph Paris, Ronald King, Wayne Garner, Johnny Sikes. (Williams, Pattie) Modified on 8/18/2008 to edit text(slt). (Entered: 08/04/2008)
275 Second MOTION for Emergency Preliminary Injunction by Tracy Miller. Responses due by 9/2/2008 (Attachments: (1) Envelope)(ca) (Entered: 08/13/2008)
276 NOTICE of Filing Exhibit by Tracy Miller (Attachments: (1) Envelope)(ca) (Entered: 08/20/2008)
277 CONSENT SCHEDULING ORDER: The Court's Scheduling Order of May 5, 2008, is hereby modified as follows: Expert Witness Report (Plaintiff) due by 9/4/2008. Expert Witness Report (defendant) due by 10/4/2008. Signed by Magistrate Judge James E. Graham on 8/21/2008. (csr) (Entered: 08/21/2008)

Case: 6:98-cv-109 As of: 06/18/2019 01:24 PM EDT 31 of 53

08/21/2008 08/21/2008 08/21/2008 08/25/2008 09/02/2008 09/02/2008 09/02/2008 09/04/2008 09/04/2008 09/04/2008
09/04/2008 09/04/2008 09/08/2008
09/10/2008 09/11/2008 09/15/2008

278 PROTECTIVE ORDER. Signed by Magistrate Judge James E. Graham on 8/21/08. (slt) (Entered: 08/21/2008)
279 ORDER denying 271 Motion to Consolidate Discovery. This Order does not preclude the taking of a joint deposition to be used in each of these cases. Signed by Magistrate Judge James E. Graham on 8/21/2008. (ca) (Entered: 08/21/2008)
280 ORDER denying 273 Motion for Preliminary Injunction. Plaintiff's request for a hearing is also Denied. Signed by Magistrate Judge James E. Graham on 8/21/2008. (csr) (Entered: 08/21/2008)
281 MOTION for copies by Tracy Miller. Responses due by 9/15/2008 (csr) Date Modified on 8/27/2008 (csr). (Entered: 08/26/2008)
282 RESPONSE to Motion re 281 MOTION for copies filed by Hugh Smith, Steve Roberts, Carolyn Mailloux, Lisa Waters Johnson, Victor L. Walker, Dennis Brown, James Donald, Joseph Paris, Ronald King, Johnny Sikes. (Williams, Pattie) (Entered: 09/02/2008)
283 RESPONSE to Motion re 275 MOTION for Preliminary Injunction filed by Hugh Smith, Steve Roberts, Carolyn Mailloux, Lisa Waters Johnson, Victor L. Walker, Dennis Brown, James Donald, Joseph Paris, Ronald King, Johnny Sikes. (Williams, Pattie) (Entered: 09/02/2008)
284 Emergency MOTION for Preliminary Injunction, MOTION for Protective Order by Tracy Miller. Responses due by 9/22/2008 (csr) (Entered: 09/02/2008)
285 NOTICE by Tracy Miller of Manual Filing With Restrictions (Plainitff's Expert Report of David Apple, M.D.) (Attachments: # 1 Attachment Cover Page)(Shalf, Sarah) (Entered: 09/04/2008)
286 NOTICE by Tracy Miller of Manual Filing With Restrictions (Plainitff's Expert Report of Brie Williams, M.D.) (Attachments: # 1 Attachment Cover Page)(Shalf, Sarah) (Entered: 09/04/2008)
287 EXPERT WITNESS REPORT filed for Mark J. Mazz, AIA by Tracy Miller. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit C, Attachment 1, # 5 Exhibit C, Attachment 2, # 6 Exhibit C, Attachment 3, # 7 Exhibit C, Attachment 4, # 8 Exhibit C, Attachment 5, # 9 Exhibit C, Attachment 6)(Shalf, Sarah) (Entered: 09/04/2008)
289 EXPERT WITNESS REPORT filed for David Apple, MD, (Document Sealed) by Tracy Miller. (Attachments: # 1 Expert Report of David Apple, MD, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C) CD of Expert Report is attached to original sealed pleading. (Pleading 285 is redacted version of this pleading.)(slt) (Entered: 09/09/2008)
290 EXPERT WITNESS REPORT filed for Brie Williams, MD by Tracy Miller. (Attachments: # 1 Expert Report of Brie Williams, MD) CD of Expert of Report of Brie Williams, MD, is attached to original pleading. (Document 286 is the redacted version of this pleading.)(slt) (Entered: 09/09/2008)
288 MOTION for Extension of Time to Second Motion to Require Plaintiff to Submit to a Comprehensive Medical Exam by Defendants' Medical Expert and Request for Extension to File Expert Report by Hugh Smith, Steve Roberts, Carolyn Mailloux, Lisa Waters Johnson, Victor L. Walker, Dennis Brown, James Donald, Joseph Paris, Ronald King, Wayne Garner, Johnny Sikes. Responses due by 9/26/2008 (Attachments: # 1 Briefs, # 2 Text of Proposed Order Proposed Order)(Williams, Pattie) (Entered: 09/08/2008)
291 NOTICE of Filing Letter as Exhibit by Tracy Miller ( Filing Pro Se). (csr) (Entered: 09/10/2008)
293 RESPONSE to Motion re 284 MOTION for Preliminary Injunction MOTION for Protective Order filed by Hugh Smith, Steve Roberts, Carolyn Mailloux, Lisa Waters Johnson, Victor L. Walker, Dennis Brown, James Donald, Joseph Paris, Ronald King, Johnny Sikes. (Williams, Pattie) (Entered: 09/11/2008)
294 ORDER granting in part that plft is required to submit to a Comprehensive Medical Exam and denying in part 288 Motion for Extension of Time; this order does not

Case: 6:98-cv-109 As of: 06/18/2019 01:24 PM EDT 32 of 53

09/18/2008 09/19/2008 09/22/2008 09/22/2008 09/25/2008 09/26/2008 10/02/2008 10/02/2008
10/20/2008 10/21/2008 10/24/2008
10/28/2008 11/06/2008 11/13/2008

extend to the IME to be performed at a later date because the parties are exploring resolution of potential issues regarding that IME. Signed by Magistrate Judge James E. Graham on 9/15/2008. (ca) (Entered: 09/15/2008)
295 MOTION for Preliminary Injunction by Tracy Miller. Responses due by 10/6/2008 (csr) (Entered: 09/18/2008)
296 NOTICE by Tracy Miller re 264 Response to Motion, of Supplemental Authorities, and Notice of Plaintiff's Transfer (Shalf, Sarah) (Entered: 09/19/2008)
297 Amended SCHEDULING ORDER: Discovery due by 1/31/2009. Motions due by 3/4/2009. Expert Witness Report (defendant) due by 11/14/2008.. Signed by Magistrate Judge James E. Graham on 9/22/2008. (csr) (Entered: 09/22/2008)
298 ORDER denying 284 Motion for Preliminary Injunction; denying 284 Motion for Protective Order. Signed by Magistrate Judge James E. Graham on 9/22/08. (slt) (Entered: 09/22/2008)
299 MOTION for Emergency Assistance to Stop Warden Victor Walker from Retaliating by Tracy Miller. Responses due by 10/14/2008 (csr) (Entered: 09/25/2008)
300 ORDER denying 281 Motion to Compel Defendants to provide him with copies of discovery. Signed by Magistrate Judge James E. Graham on 9/26/2008. (csr) (Entered: 09/26/2008)
301 ORDER dismissing 299 Motion for an Emergency Motion for Assistance. The Clerk is hereby directed to return all pro se motions or other pro se documents submitted by Plaintiff to him without filing same. Signed by Magistrate Judge James E. Graham on 10/2/2008. (csr) (Entered: 10/02/2008)
302 ORDER Granting 288 Motion to require plaintiff to submit to a Comprehensive Medical Exam by Defendants Medical Expert and Request for Extension filed by Defendants. Directing Plaintiff Tracy Anthony Miller to submit to an Independent Medical Exam (IME) by Dr. Samuel Milton at the Emory Clinic on October 9, 2008. Signed by Magistrate Judge James E. Graham on 10/2/2008. (csr) (Entered: 10/02/2008)
303 Emergancy MOTION for Preliminary Injunction, MOTION for Protective Order by Tracy Miller. Responses due by 11/7/2008 REFERRED to Judge James E. Graham.(cmr) (Entered: 10/20/2008)
304 ORDER dismissing 303 Motion for Preliminary Injunction; dismissing 303 Motion for Protective Order. Signed by Magistrate Judge James E. Graham on 10/21/08. (slt) (Additional attachment(s) added on 10/21/2008: # 1 correct order) (slt). Modified on 10/21/2008 to restrict access to order attached in error (slt). (Entered: 10/21/2008)
305 STIPULATION and Agreed Order by Hugh Smith, Steve Roberts, Carolyn Mailloux, Lisa Waters Johnson, Dennis Brown, James Donald, Joseph Paris, Georgia State Prison, Augusta State Medical Prison, Tracy Miller, Ronald King, The State of Georgia, The Georgia Department of Corrections, Johnny Sikes. (Shalf, Sarah) (Entered: 10/24/2008)
306 ORDER allowing that Defts shall have 10 hours within which to depose the Plft on the date noticed re 305 Stipulation. Signed by Magistrate Judge James E. Graham on 10/28/2008. (ca) (Entered: 10/28/2008)
308 ORDER dismissing 275 Motion for Preliminary Injunction; dismissing 295 Motion for Preliminary Injunction. Signed by Magistrate Judge James E. Graham on 11/6/08. (slt) (Entered: 11/06/2008)
309 NOTICE of Filing Expert Report of Randall I. Atlas to include filing of Expert Report by Hugh Smith, Steve Roberts, Carolyn Mailloux, Lisa Waters Johnson, Victor L. Walker, Dennis Brown, James Donald, Joseph Paris, Ronald King, Johnny Sikes (Attachments: # 1 Attachment 1−PART 1, # 2 Attachment 1 Part 2, # 3 Exhibit A PART 1, # 4 Exhibit A Part 2, # 5 Exhibit B, # 6 Exhibit C, # 7 Exhibit D, # 8 Exhibit E, # 9 Exhibit F, # 10 Exhibit G, # 11 Exhibit H)(Williams, Pattie) Modified on 11/14/2008 to edit docket text (ca). (Entered: 11/13/2008)

Case: 6:98-cv-109 As of: 06/18/2019 01:24 PM EDT 33 of 53

11/14/2008 11/17/2008
11/18/2008 01/22/2009 01/30/2009
02/03/2009
02/03/2009 02/04/2009
02/09/2009 02/09/2009 02/19/2009 02/24/2009 03/12/2009 03/12/2009 03/23/2009

310 Defendants' Notice of Manual Filing with Restrictions by Hugh Smith, Steve Roberts, Carolyn Mailloux, Lisa Waters Johnson, Victor L. Walker, Dennis Brown, James Donald, Joseph Paris, Ronald King, Johnny Sikes (Williams, Pattie) Modified on 11/14/2008 to edit docket text(ca). (Entered: 11/14/2008)
312 EXPERT WITNESS REPORT filed for Samuel B. Milton, M.D., (Document Restricted)by Hugh Smith, Steve Roberts, Carolyn Mailloux, Lisa Waters Johnson, Victor L. Walker, Dennis Brown, James Donald, Joseph Paris, Georgia State Prison, Augusta State Medical Prison, United States Of America, Ronald King, The State of Georgia, The Georgia Department of Corrections, Johnny Sikes.(ca) Modified on 11/18/2008 to edit file date (ca). (Entered: 11/18/2008)
311 ORDER entered that Plft's Expert Report of Samuel B. Milton, M.D. shall be filed with restricted access. Signed by Magistrate Judge James E. Graham on 11/18/2008. (ca) (Entered: 11/18/2008)
313 MOTION and Supporting Memorandum for Referral to Mediation by Tracy Miller. Responses due by 2/9/2009 (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(Shalf, Sarah) (Entered: 01/22/2009)
314 Joint MOTION for Extension of Time to Complete Discovery to March 31, 2009 by Hugh Smith, Steve Roberts, Carolyn Mailloux, Lisa Waters Johnson, Victor L. Walker, Dennis Brown, James Donald, Joseph Paris, Georgia State Prison, Augusta State Medical Prison, Tracy Miller, Ronald King, The State of Georgia, The Georgia Department of Corrections, Johnny Sikes. Responses due by 2/17/2009 (Shalf, Sarah) (Entered: 01/30/2009)
315 ORDER granting 314 Motion for Extension of Time to Complete Discovery. The deadline to complete discovery is hereby extended to March 31, 2009. All other dates in the scheduling order are reset to sixty days after the date in the scheduling order dated 9/22/2008. Signed by Magistrate Judge James E. Graham on 2/3/2009. (csr) (Entered: 02/03/2009)
Set/Reset Deadlines: Discovery due by 3/31/2009. Motions due by 5/3/2009. (csr) (Entered: 02/03/2009)
316 RESPONSE to Motion re 313 MOTION and Supporting Memorandum for Referral to Mediation filed by Hugh Smith, Steve Roberts, Carolyn Mailloux, Lisa Waters Johnson, Victor L. Walker, Dennis Brown, James Donald, Joseph Paris, Ronald King, Wayne Garner, Johnny Sikes. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Williams, Pattie) (Entered: 02/04/2009)
317 NOTICE of Hearing: Settlement Conference set for 2/19/2009 10:00 AM in Augusta − Grand Jury Room before Magistrate Judge James E. Graham. (rra) (Entered: 02/09/2009)
318 Writ of Habeas Corpus ad Prosequendum Issued for Tracy Anthony Miller for 2/19/2009. (rra) (Entered: 02/09/2009)
319 Minute Entry for proceedings held before Magistrate Judge James E. Graham: Settlement Conference held on 2/19/2009. Will schedule another settlement conference end of April 2009. (Tape #FTR.) (rra) (Entered: 02/19/2009)
Minute Entry for proceedings held before Magistrate Judge James E. Graham: Telephone Conference held on 2/24/2009. (rra) (Entered: 02/25/2009)
320 NOTICE of Hearing: Settlement Conference set for 4/14/2009 10:00 AM in Augusta − Grand Jury Room before Magistrate Judge James E. Graham. (rra) (Entered: 03/12/2009)
321 Writ of Habeas Corpus ad Prosequendum Issued for 4/14/2009, 10:00 a.m., in Augusta. (rra) (Entered: 03/12/2009)
322 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Settlement Conference Proceedings held on February 19,2009, before Judge James E. Graham. Court Reporter/Transcriber C. Joan Mobley, Telephone number 912−280−1348. Tape Number: FTR. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. (Transcript Redaction

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04/01/2009 04/01/2009 04/14/2009 05/11/2009 05/19/2009 05/19/2009 06/15/2009
06/17/2009 06/19/2009 07/02/2009
08/04/2009
08/06/2009 08/25/2009

Policy Issued or Click here to view Transcript Redaction Policy) Redaction Request due 4/13/2009. Redacted Transcript Deadline set for 4/23/2009. Release of Transcript Restriction set for 6/22/2009. (Mobley, Joan) (Entered: 03/23/2009)
323 ORDER Granting Joint Motion for Extension of Time to Complete Discovery. The deadline for completing Discovery is hereby extended to May 18, 2009, and the deadline to file all motions except for motions in limine is reset to June 15, 2009. Signed by Magistrate Judge James E. Graham on 4/1/2009. (csr) (Entered: 04/01/2009)
Set/Reset Deadlines: Discovery due by 5/18/2009. Motions due by 6/15/2009 with the exception of Motions in Limine. (csr) (Entered: 04/01/2009)
324 Minute Entry for proceedings held before Magistrate Judge James E. Graham: Settlement Conference held on 4/14/2009. All issues except monetary resolved. Telephone conference to be scheduled at a later date. (Tape #FTR.) (rra) (Entered: 04/14/2009)
325 Letter from Tracy Miller re: Dtk. No. 324 (Attachments: (1) Envelope) (ca) (Entered: 05/11/2009)
326 ORDER granting joint motion to extend discovery, discovery is extended to June 18, 2009, and the deadline to file all motions except motion in limine is reset to July 15, 2009. Signed by Magistrate Judge James E. Graham on 5/19/2009. (ca) (Entered: 05/19/2009)
Set/Reset Deadlines: Discovery due by 6/18/2009. Motions due by 7/15/2009. (ca) (Entered: 05/19/2009)
327 MOTION to Dismiss by Hugh Smith, Steve Roberts, Carolyn Mailloux, Lisa Waters Johnson, Victor L. Walker, Dennis Brown, James Donald, Joseph Paris, Georgia State Prison, Augusta State Medical Prison, Ronald King, The State of Georgia, The Georgia Department of Corrections, Johnny Sikes. Responses due by 7/6/2009 (Attachments: # 1 Briefs in Support of Motion to Dismiss)(Smith, Holly) (Entered: 06/15/2009)
328 MOTION for Leave of Absence as to Tracy Miller For dates of : June 18−28, 2009 and July 3−10, 2009 by Tracy Miller. Responses due by 7/6/2009 (Attachments: # 1 Text of Proposed Order)(Shalf, Sarah) (Entered: 06/17/2009)
329 ORDER granting 328 Motion for Leave of Absence for Attorney Sarah M. Shalf. Signed by Magistrate Judge James E. Graham on 6/19/2009. (csr) (Entered: 06/19/2009)
330 SCHEDULING ORDER: Discovery due by 9/15/2009, (2) Dispositive motions shall be filed 30 days after either (a)the close of discovery or (b) the Court's entry of its ruling on the pending motions for partial summary judgment, whichever is later, (3) Responses to dispositive motions shall be filed 20 days after service of the motions. Responses to the pending motion to dismiss, filed on June 15, 2009, shall be filed at that time. (4) Any replies in support of the dispositive motions, including the motion to dismiss, shall be filed 20 days after service of the reponse. Signed by Magistrate Judge James E. Graham on 7/2/2009. (ca) (Entered: 07/02/2009)
331 MOTION to Withdraw 327 MOTION to Dismiss by Hugh Smith, Steve Roberts, Lisa Waters Johnson, Victor L. Walker, Dennis Brown, James Donald, Joseph Paris, Georgia State Prison, Augusta State Medical Prison, Ronald King, The State of Georgia, The Georgia Department of Corrections, Johnny Sikes. Responses due by 8/24/2009 (Smith, Holly) (Entered: 08/04/2009)
332 ORDER dismissing 327 Motion to Dismiss; granting 331 Motion to Withdraw. Signed by Magistrate Judge James E. Graham on 8/6/2009. (ca) (Entered: 08/06/2009)
333 AMENDED SCHEDULING ORDER: Fact discovery in this case shall close 60 days after the entry of an order ruling on the Defendants' Motion for Partial Summary Judgment filed May 16, 2008. All other deadlines in the order of July 2, 2009, shall remain in place. Signed by Magistrate Judge James E. Graham on 8/25/2009. (csr) (Entered: 08/25/2009)

Case: 6:98-cv-109 As of: 06/18/2019 01:24 PM EDT 35 of 53

08/28/2009 09/21/2009 09/28/2009 09/28/2009 09/29/2009 10/05/2009
10/08/2009 10/23/2009
10/30/2009 11/02/2009
11/02/2009
11/03/2009
11/06/2009

334 ORDER denying 313 Motion for referral to mediation. Signed by Magistrate Judge James E. Graham on 8/28/09. (slt) (Entered: 08/28/2009)
335 ORDER granting in part and denying in part 254 Motion for Partial Summary Judgment. Signed by Magistrate Judge James E. Graham on 9/21/2009. (ca) (Entered: 09/21/2009)
336 NOTICE of Appearance by Dirk Phillips on behalf of United States Of America (Phillips, Dirk) (Entered: 09/28/2009)
337 First MOTION to Substitute Attorney Sarah Harrington by United States Of America. Responses due by 10/16/2009 (Attachments: # 1 Text of Proposed Order Substitution of Counsel)(Phillips, Dirk) (Entered: 09/28/2009)
338 ORDER granting 337 Motion to Substitute Attorney Dirk C. Philips. Attorney Sarah E. Harrington terminated. Signed by Magistrate Judge James E. Graham on 9/29/09. (slt) (Entered: 09/29/2009)
339 MOTION for Reconsideration re 335 Order on Motion for Partial Summary Judgment by Hugh Smith, Steve Roberts, Carolyn Mailloux, Lisa Waters Johnson, Victor L. Walker, Dennis Brown, James Donald, Joseph Paris, Georgia State Prison, Augusta State Medical Prison, Ronald King, The State of Georgia, The Georgia Department of Corrections, Johnny Sikes. Responses due by 10/23/2009 (Attachments: # 1 Briefs in Support, # 2 Exhibit "A")(Smith, Holly) (Entered: 10/05/2009)
340 AMENDED SCHEDULING ORDER: Discovery shall close 60 days after the entry of an order ruling on Deft's Motion for Reconsideration of the Court's 9/29/09 Order, all other deadlines in the Scheduling Order entered 7/2/09, shall remain in place. Signed by Magistrate Judge James E. Graham on 10/8/2009. (ca) (Entered: 10/08/2009)
341 RESPONSE to Motion re 339 MOTION for Reconsideration re 335 Order on Motion for Partial Summary Judgment MOTION for Reconsideration re 335 Order on Motion for Partial Summary Judgment and Cross Motion for Clarification of the Court's September 21, 2009 Order, with Brief in Support filed by Tracy Miller. (Shalf, Sarah) (Entered: 10/23/2009)
342 MOTION to Withdraw as Attorney by Hugh Smith, Steve Roberts, Carolyn Mailloux, Lisa Waters Johnson, Dennis Brown, James Donald, Joseph Paris, Georgia State Prison, Ronald King, The State of Georgia, The Georgia Department of Corrections, Johnny Sikes. Responses due by 11/17/2009 (Smith, Holly) (Entered: 10/30/2009)
343 NOTICE of Appearance by Michelle J. Hirsch on behalf of Hugh Smith, Steve Roberts, Carolyn Mailloux, Lisa Waters Johnson, Victor L. Walker, Dennis Brown, James Donald, Joseph Paris, Georgia State Prison, Augusta State Medical Prison, Ronald King, The State of Georgia, The Georgia Department of Corrections, Johnny Sikes (Hirsch, Michelle) (Entered: 11/02/2009)
344 NOTICE by Hugh Smith, Steve Roberts, Carolyn Mailloux, Lisa Waters Johnson, Victor L. Walker, Dennis Brown, James Donald, Joseph Paris, Georgia State Prison, Augusta State Medical Prison, Ronald King, The State of Georgia, The Georgia Department of Corrections, Johnny Sikes to file a Reply Brief in Support of Their Motion for Reconsideration (Hirsch, Michelle) Modified on 11/3/2009**incorrect case style on pleading** (ca). (Entered: 11/02/2009)
345 NOTICE by Hugh Smith, Steve Roberts, Carolyn Mailloux, Lisa Waters Johnson, Victor L. Walker, Dennis Brown, James Donald, Joseph Paris, Georgia State Prison, Augusta State Medical Prison, Ronald King, The State of Georgia, The Georgia Department of Corrections, Johnny Sikes of Intent to File Reply Brief−Corrected (Hirsch, Michelle) (Entered: 11/03/2009)
346 REPLY to Response to Motion re 339 MOTION for Reconsideration re 335 Order on Motion for Partial Summary Judgment MOTION for Reconsideration re 335 Order on Motion for Partial Summary Judgment filed by Hugh Smith, Steve Roberts, Carolyn Mailloux, Lisa Waters Johnson, Victor L. Walker, Dennis Brown, James Donald, Joseph Paris, Georgia State Prison, Augusta State Medical Prison, Ronald King, The State of Georgia, The Georgia Department of Corrections, Johnny Sikes. (Attachments: # 1 Exhibit A, part 1, # 2 Exhibit A, part 2, # 3 Exhibit A, part 3, # 4 Exhibit B)(Hirsch, Michelle) (Entered: 11/06/2009)

Case: 6:98-cv-109 As of: 06/18/2019 01:24 PM EDT 36 of 53

11/06/2009
11/09/2009
11/10/2009 11/10/2009 11/12/2009
11/12/2009 11/12/2009 11/20/2009 11/20/2009 11/23/2009 11/25/2009
11/30/2009 12/03/2009 12/03/2009 12/04/2009

347 MOTION for Leave to File Amended Answer and Defenses by Hugh Smith, Steve Roberts, Carolyn Mailloux, Lisa Waters Johnson, Victor L. Walker, Dennis Brown, James Donald, Joseph Paris, Georgia State Prison, Augusta State Medical Prison, Ronald King, The State of Georgia, The Georgia Department of Corrections, Johnny Sikes. Responses due by 11/24/2009 (Attachments: # 1 Proposed Amended Answer and Defenses, # 2 Text of Proposed Order)(Hirsch, Michelle) (Entered: 11/06/2009)
348 ORDER granting 342 Motion to Withdraw as Attorney. Attorney Holly Loy Smith terminated; the Clerk is authorized to remove the name Holly Loy Smith and substitute the name of Michelle J. Hirsch as counsel for Defts as the same is listed on the docket and recored of this case. Signed by Magistrate Judge James E. Graham on 11/9/2009. (ca) (Entered: 11/09/2009)
349 ORDER granting in part and denying in part 339 Motion for Reconsideration; granting (341) pltf's cross motion for clarification. Signed by Magistrate Judge James E. Graham on 11/10/09. (slt) Modified on 11/10/2009 to edit text (slt). (Entered: 11/10/2009)
350 MOTION to Compel or to Deem Admitted by Tracy Miller. Responses due by 11/30/2009 (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J)(Shalf, Sarah) (Entered: 11/10/2009)
351 NOTICE of Appearance by Susan Elizabeth Teaster on behalf of Hugh Smith, Steve Roberts, Carolyn Mailloux, Lisa Waters Johnson, Victor L. Walker, Dennis Brown, James Donald, Joseph Paris, Georgia State Prison, Augusta State Medical Prison, Ronald King, The State of Georgia, The Georgia Department of Corrections, Johnny Sikes (Teaster, Susan) (Entered: 11/12/2009)
352 ORDER and NOTICE of Pretrial Proceedings. Signed by Magistrate Judge James E. Graham on 11/12/2009. (ca) (Entered: 11/12/2009)
353 SCHEDULING ORDER: Discovery due by 1/8/2010. Motions due by 2/7/2010. Pretrial Order due by 3/9/2010.. Signed by Magistrate Judge James E. Graham on 11/12/09. (slt) (Entered: 11/12/2009)
354 MOTION for Leave to Appear Pro Hac Vice for Attorney Robert L. Ashe, III by Tracy Miller. Responses due by 12/8/2009 (Attachments: (1) Text of Proposed Order)(ca) (Entered: 11/20/2009)
Pro Hac Vice Filing fee: $ 200.00, receipt number BWK002019 (ca) (Entered: 11/20/2009)
355 ORDER granting 354 Motion for Leave to Appear Pro Hac Vice for Attorney Robert L. Ashe III. Signed by Magistrate Judge James E. Graham on 11/23/2009. (csr) (Entered: 11/23/2009)
356 RESPONSE to Motion re 350 MOTION to Compel or to Deem Admitted Or, In The Alternative, To Compel Appropriate Responses, And For Attorneys' Fees filed by Augusta State Medical Prison, Dennis Brown, James Donald, Wayne Garner, Georgia State Prison, Lisa Waters Johnson, Carolyn Mailloux, Joseph Paris, Steve Roberts, Johnny Sikes, Hugh Smith, The Georgia Department of Corrections, Victor L. Walker. (Attachments: # 1 Exhibit A)(Teaster, Susan) (Entered: 11/25/2009)
357 MOTION to represent himself due to a conflict of interest by Tracy Miller (pro se.) Responses due by 12/18/2009 (Attachments: # 1 envelope)(slt) (Entered: 11/30/2009)
358 ORDER granting 347 Motion for Leave to File an Amended Answer and Defenses. Defendants shall file any desired amended answer within ten days of the date of this Order. Signed by Magistrate Judge James E. Graham on 12/3/2009. (csr) (Entered: 12/03/2009)
Set/Reset Deadlines: Notice of Compliance due by 12/17/2009 re: 358 Order. (csr) (Entered: 12/03/2009)
359 DEFENDANTS' AMENDED ANSWER to Amended Complaint by Augusta State Medical Prison, Dennis Brown, James Donald, Wayne Garner, Georgia State Prison, Lisa Waters Johnson, Carolyn Mailloux, Joseph Paris, Steve Roberts, Johnny Sikes, Hugh Smith, The Georgia Department of Corrections, Victor L. Walker.(Hirsch,

Case: 6:98-cv-109 As of: 06/18/2019 01:24 PM EDT 37 of 53

12/04/2009 12/04/2009 12/04/2009 12/04/2009 12/07/2009 12/07/2009 12/07/2009 12/07/2009 12/07/2009 12/07/2009 12/07/2009 12/07/2009 12/07/2009
12/07/2009 12/07/2009 12/07/2009
12/09/2009

Michelle) (Entered: 12/04/2009)
360 PRO SE MOTION to Represent His Self due to a Number of Conflicts of Interest by Tracy Miller. Responses due by 12/22/2009 (Attachments: Envelope)(csr) Text Modified on 12/4/2009 (csr). (Entered: 12/04/2009)
361 PRO SE MOTION To Represent Himself Due to Conflict of Interest With My Attorney ; MOTION for Preliminary Injunction by Tracy Miller. Responses due by 12/22/2009 (Attachments: Envelope)(csr) (Entered: 12/04/2009)
362 MOTION to Represent Miller's Ownself due to Conflict of Interest by Tracy Miller. Responses due by 12/22/2009 (Attachments: (1) Envelope)(ca) (Entered: 12/04/2009)
363 MOTION for Injunctive Relief by Tracy Miller. Responses due by 12/22/2009 (Attachments: (1) Envelope)(ca) (Entered: 12/04/2009)
364 MOTION to Compel Plaintiff to Provide Responses to Interrogatories by Hugh Smith. Responses due by 12/28/2009 (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Hirsch, Michelle) (Entered: 12/07/2009)
365 MOTION to Compel Plaintiff to Provide Responses to Interrogatories by Dennis Brown. Responses due by 12/28/2009 (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Hirsch, Michelle) (Entered: 12/07/2009)
366 MOTION to Compel Plaintiff to Provide Responses to Interrogatories by Steve Roberts. Responses due by 12/28/2009 (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Hirsch, Michelle) (Entered: 12/07/2009)
367 MOTION to Compel Plaintiff to Provide Responses to Interrogatories by Carolyn Mailloux. Responses due by 12/28/2009 (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Hirsch, Michelle) (Entered: 12/07/2009)
368 MOTION to Compel Plaintiff to Provide Responses to Interrogatories by Lisa Waters Johnson. Responses due by 12/28/2009 (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Hirsch, Michelle) (Entered: 12/07/2009)
369 MOTION to Compel Plaintiff to Provide Responses to Interrogatories by Victor L. Walker. Responses due by 12/28/2009 (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Hirsch, Michelle) (Entered: 12/07/2009)
370 MOTION to Compel Plaintiff to Provide Responses to Interrogatories by Joseph Paris. Responses due by 12/28/2009 (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Hirsch, Michelle) (Entered: 12/07/2009)
371 MOTION to Compel Plaintiff to Provide Responses to Interrogatories by Wayne Garner. Responses due by 12/28/2009 (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Hirsch, Michelle) (Entered: 12/07/2009)
372 MOTION to Compel Plaintiff to Provide Responses to Interrogatories by Augusta State Medical Prison, Georgia State Prison, The Georgia Department of Corrections. Responses due by 12/28/2009 (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Hirsch, Michelle) (Entered: 12/07/2009)
373 CERTIFICATE OF SERVICE by Tracy Miller Notice of Service of Discovery (Shalf, Sarah) (Entered: 12/07/2009)
374 REPLY to Response to Motion re 350 MOTION to Compel or to Deem Admitted, filed by Tracy Miller. (Shalf, Sarah) Modified on 12/9/2009 to edit docket text(ca). (Entered: 12/07/2009)
375 RESPONSE to Motion re 360 MOTION to Represent His Self due to a Number of conflicts of Interest, 361 MOTION To Represent Himself Due to Conflict of Interest With My Attorney MOTION for Preliminary Injunction, 362 MOTION to Represent Miller's Ownself due to Conflict of Interest, 357 MOTION to represent himself due to a conflict of interest filed by Tracy Miller. (Shalf, Sarah) (Entered: 12/07/2009)
376 RESPONSE to Motion re 360 MOTION to Represent His Self due to a Number of conflicts of Interest, 361 MOTION To Represent Himself Due to Conflict of Interest With My Attorney MOTION for Preliminary Injunction, 362 MOTION to Represent

Case: 6:98-cv-109 As of: 06/18/2019 01:24 PM EDT 38 of 53

12/11/2009 12/11/2009
12/14/2009 12/15/2009
12/17/2009 12/18/2009
12/18/2009
12/18/2009 12/18/2009 12/18/2009 12/18/2009 12/18/2009 12/18/2009 12/18/2009 12/18/2009 12/21/2009

Miller's Ownself due to Conflict of Interest, 357 MOTION to represent himself due to a conflict of interest, 363 MOTION for Injunctive Relief filed by Augusta State Medical Prison, Dennis Brown, James Donald, Wayne Garner, Georgia State Prison, Lisa Waters Johnson, Carolyn Mailloux, Joseph Paris, Steve Roberts, Johnny Sikes, Hugh Smith, The Georgia Department of Corrections, The State of Georgia, Victor L. Walker. (Hirsch, Michelle) (Entered: 12/09/2009)
377 MOTION To Issue an Order for a Criminal Investigation by Tracy Miller. Responses due by 12/29/2009 (Attachments: Envelope)(csr) (Entered: 12/11/2009)
378 Pro Se Supplement to 360 MOTION to Represent His Self due to a Number of conflicts of Interest, 362 MOTION to Represent Miller's Ownself due to Conflict of Interest, 357 MOTION to represent himself due to a conflict of interest, 363 MOTION for Injunctive Relief by Tracy Miller. (Attachments: Envelope)(csr) (Entered: 12/11/2009)
379 NOTICE by Tracy Miller of Rule 30(b)(6) Deposition (Shalf, Sarah) (Entered: 12/14/2009)
380 MOTION to Withdraw 360 MOTION to Represent His Self due to a Number of conflicts of Interest, 361 MOTION To Represent Himself Due to Conflict of Interest With My Attorney MOTION for Preliminary Injunction, 378 , 362 MOTION to Represent Miller's Ownself due to Conflict of Interest, 357 MOTION to represent himself due to a conflict of interest, 363 MOTION for Injunctive Relief by Tracy Miller. Responses due by 1/4/2010 (Shalf, Sarah) (Entered: 12/15/2009)
381 ORDER dismissing 361 Motion for Preliminary Injunction; granting 380 Motion to Withdraw. Signed by Magistrate Judge James E. Graham on 12/17/2009. (ca) (Entered: 12/17/2009)
382 MOTION for Protective Order and, MOTION to Quash and Brief in Support by Augusta State Medical Prison, Dennis Brown, James Donald, Georgia State Prison, Lisa Waters Johnson, Carolyn Mailloux, Joseph Paris, Steve Roberts, Johnny Sikes, Hugh Smith, The Georgia Department of Corrections, The State of Georgia, Victor L. Walker. Responses due by 1/5/2010 (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G)(Hirsch, Michelle) (Entered: 12/18/2009)
383 NOTICE by Tracy Miller to Serve Subpoenas (Attachments: # 1 Subpoena − Jones, # 2 Subpoena − Fields, # 3 Subpoena − Greiser, # 4 Subpoena − Wilkes, # 5 Subpoena − Upton, # 6 Subpoena − Young, # 7 Subpoena − Siraj, # 8 Subpoena − Nichols)(Shalf, Sarah) (Entered: 12/18/2009)
384 NOTICE by Tracy Miller of Videotaped Deposition of Victor Walker (Shalf, Sarah) Modified on 12/21/2009 to edit docket text(ca). (Entered: 12/18/2009)
385 NOTICE by Tracy Miller of Videotaped Deposition of Johnny Sikes (Shalf, Sarah) Modified on 12/21/2009 to edit docket text(ca). (Entered: 12/18/2009)
386 NOTICE by Tracy Miller of Videotaped Deposition of Hugh Smith (Shalf, Sarah) Modified on 12/21/2009 to edit docket text(ca). (Entered: 12/18/2009)
387 NOTICE by Tracy Miller of Videotaped Deposition of Dennis Brown (Shalf, Sarah) Modified on 12/21/2009 to edit docket text(ca). (Entered: 12/18/2009)
388 NOTICE by Tracy Miller of Videotaped Deposition of Carolyn Mailloux (Shalf, Sarah) Modified on 12/21/2009 to edit docket text(ca). (Entered: 12/18/2009)
389 NOTICE by Tracy Miller of Videotaped Deposition of Lisa Johnson (Shalf, Sarah) Modified on 12/21/2009 to edit docket text(ca). (Entered: 12/18/2009)
390 NOTICE by Tracy Miller of Videotaped Deposition of Dr. Joseph Paris (Shalf, Sarah) Modified on 12/21/2009 to edit docket text(ca). (Entered: 12/18/2009)
391 NOTICE by Tracy Miller Videotaped Deposition of James Donald (Shalf, Sarah) Modified on 12/21/2009 to edit docket text(ca). (Entered: 12/18/2009)
392 Supplemental MOTION for Protective Order and, MOTION to Quash and Brief in Support by Augusta State Medical Prison, Dennis Brown, James Donald, Wayne

Case: 6:98-cv-109 As of: 06/18/2019 01:24 PM EDT 39 of 53

12/22/2009 12/23/2009
12/30/2009
01/05/2010 01/05/2010 01/07/2010 01/07/2010 01/07/2010

Garner, Georgia State Prison, Lisa Waters Johnson, Ronald King, Carolyn Mailloux, Joseph Paris, Steve Roberts, Johnny Sikes, Hugh Smith, The Georgia Department of Corrections, The State of Georgia, Victor L. Walker. Responses due by 1/8/2010 (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Hirsch, Michelle) Modified on 1/28/2010 to modify event(slt). (Entered: 12/21/2009)
393 ORDER granting in part 382 Motion for Protective Order; granting in part 382 Motion to Quash; granting in part 392 Supplemental Motion for Protective Order; granting in part 392 Supplemental Motion to Quash; the Court held a telephonic hearing on 12/21/09, as a result of that hearing the Court agreed to extend the discovery peroid. Accordingly, that portion of Defts' Motion seeking to quash the notices of depositions scheduled daily beginning 1/4/10, is granted. This Order is not intented to permit or preclude Plft from taking the depositions on other days. Signed by Magistrate Judge James E. Graham on 12/22/2009. (ca) Modified on 12/23/2009 (sp) (rra). (Entered: 12/22/2009)
394 RESPONSE in Opposition re 372 MOTION to Compel Plaintiff to Provide Responses to Interrogatories, 371 MOTION to Compel Plaintiff to Provide Responses to Interrogatories, 368 MOTION to Compel Plaintiff to Provide Responses to Interrogatories, 366 MOTION to Compel Plaintiff to Provide Responses to Interrogatories, 370 MOTION to Compel Plaintiff to Provide Responses to Interrogatories, 365 MOTION to Compel Plaintiff to Provide Responses to Interrogatories, 369 MOTION to Compel Plaintiff to Provide Responses to Interrogatories, 367 MOTION to Compel Plaintiff to Provide Responses to Interrogatories, 364 MOTION to Compel Plaintiff to Provide Responses to Interrogatories filed by Tracy Miller. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F)(Shalf, Sarah) (Entered: 12/23/2009)
395 NOTICE of Intent to File Reply Briefs by Dennis Brown, Wayne Garner, Lisa Waters Johnson, Carolyn Mailloux, Joseph Paris, Steve Roberts, Hugh Smith, Victor L. Walker re 370 MOTION to Compel Plaintiff to Provide Responses to Interrogatories, 372 MOTION to Compel Plaintiff to Provide Responses to Interrogatories, 365 MOTION to Compel Plaintiff to Provide Responses to Interrogatories, 369 MOTION to Compel Plaintiff to Provide Responses to Interrogatories, 371 MOTION to Compel Plaintiff to Provide Responses to Interrogatories, 367 MOTION to Compel Plaintiff to Provide Responses to Interrogatories, 368 MOTION to Compel Plaintiff to Provide Responses to Interrogatories, 366 MOTION to Compel Plaintiff to Provide Responses to Interrogatories, 364 MOTION to Compel Plaintiff to Provide Responses to Interrogatories (Hirsch, Michelle) (Entered: 12/30/2009)
396 RESPONSE in Opposition re 392 Supplemental MOTION for Protective Order and MOTION to Quash and Brief in Support, 382 MOTION for Protective Order and MOTION to Quash and Brief in Support filed by Tracy Miller. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10)(Shalf, Sarah) (Entered: 01/05/2010)
397 Joint MOTION to Substitute Party to Name Current Official Capacity Defendants, and Stipulation of Dismissal of Defendants Donald and Garner in their Individual Capacities Only by Tracy Miller. Responses due by 1/25/2010 (Shalf, Sarah) (Entered: 01/05/2010)
398 AMENDED SCHEDULING ORDER: Discovery due by 3/9/2010. Motions due by 4/8/2010. Pretrial Order due by 5/7/2010; all other provisions in the Amended Scheduling Order of 11/12/09 remain in effect. Signed by Magistrate Judge James E. Graham on 1/7/2010. (ca) (Entered: 01/07/2010)
399 STIPULATION Regarding ADA and Rehabilitation Act Claims by Augusta State Medical Prison, Dennis Brown, James Donald, Wayne Garner, Georgia State Prison, Ernest Howard, Sr, Lisa Waters Johnson, Ronald King, Carolyn Mailloux, Tracy Miller, Joseph Paris, Steve Roberts, Johnny Sikes, Hugh Smith. (Shalf, Sarah) (Entered: 01/07/2010)
400 ORDER Approving 397 Joint Stipulation of Dismissal of Individual Capacity Claims and Substitution of Officials. Signed by Magistrate Judge James E. Graham on 1/7/2010. (csr) Modified on 1/13/2010 to correct linkage (csr). (Entered: 01/07/2010)

Case: 6:98-cv-109 As of: 06/18/2019 01:24 PM EDT 40 of 53

01/11/2010
01/11/2010 01/12/2010 01/12/2010 01/13/2010
01/13/2010 01/21/2010 01/22/2010 01/25/2010

401 REPLY to Response to Motion re 370 MOTION to Compel Plaintiff to Provide Responses to Interrogatories, 372 MOTION to Compel Plaintiff to Provide Responses to Interrogatories, 365 MOTION to Compel Plaintiff to Provide Responses to Interrogatories, 369 MOTION to Compel Plaintiff to Provide Responses to Interrogatories, 371 MOTION to Compel Plaintiff to Provide Responses to Interrogatories, 367 MOTION to Compel Plaintiff to Provide Responses to Interrogatories, 368 MOTION to Compel Plaintiff to Provide Responses to Interrogatories, 366 MOTION to Compel Plaintiff to Provide Responses to Interrogatories, 364 MOTION to Compel Plaintiff to Provide Responses to Interrogatories filed by Augusta State Medical Prison, Dennis Brown, Wayne Garner, Georgia State Prison, Lisa Waters Johnson, Carolyn Mailloux, Joseph Paris, Steve Roberts, Hugh Smith, The Georgia Department of Corrections, Victor L. Walker. (Hirsch, Michelle) (Entered: 01/11/2010)
402 NOTICE by Tracy Miller of Service of Discovery (Shalf, Sarah) Modified on 1/11/2010 pleading is part of discovery (ca). (Entered: 01/11/2010)
403 NOTICE by Dennis Brown, Lisa Waters Johnson, Carolyn Mailloux, Joseph Paris, Steve Roberts, Johnny Sikes, Hugh Smith, The Georgia Department of Corrections, Victor L. Walker Of Intent to File Reply Brief In Support of Their Motions For Protective Order (Hirsch, Michelle) (Entered: 01/12/2010)
404 ORDER denying 350 Pltf's Motion to have requests for admissions deemed admitted or, in alternative, to compel appropriate responses and for attorneys' fees.. Signed by Magistrate Judge James E. Graham on 1/12/2010. (jsr) (Entered: 01/12/2010)
405 NOTICE of Hearing on Motion 366 MOTION to Compel Plaintiff to Provide Responses to Interrogatories, 364 MOTION to Compel Plaintiff to Provide Responses to Interrogatories, 367 MOTION to Compel Plaintiff to Provide Responses to Interrogatories, 371 MOTION to Compel Plaintiff to Provide Responses to Interrogatories, 369 MOTION to Compel Plaintiff to Provide Responses to Interrogatories, 368 MOTION to Compel Plaintiff to Provide Responses to Interrogatories, 370 MOTION to Compel Plaintiff to Provide Responses to Interrogatories, 365 MOTION to Compel Plaintiff to Provide Responses to Interrogatories, 372 MOTION to Compel Plaintiff to Provide Responses to Interrogatories : Motion Hearing set for 1/25/2010 01:00 PM in Statesboro − 1st Floor Courtroom before Magistrate Judge James E. Graham. (rra) (Entered: 01/13/2010)
406 ORDER re: 399 Stipulation, filed by Plaintiff ; accordingly, Georgia State Prison and Augusta State Medical Prison are dismissed as named Defendants. Plaintiff's ADA and Rehabilitation Act claims against the Department of Corrections remain pending. Signed by Magistrate Judge James E. Graham on 1/13/2010. (csr) (Entered: 01/13/2010)
407 REPLY to Response to Motion re 392 Supplemental MOTION for Protective Order and MOTION to Quash and Brief in Support, 382 MOTION for Protective Order and MOTION to Quash and Brief in Support filed by Dennis Brown, Lisa Waters Johnson, Carolyn Mailloux, Brian Owens, Joseph Paris, Steve Roberts, Johnny Sikes, Hugh Smith, The Georgia Department of Corrections, Victor L. Walker. (Hirsch, Michelle) (Entered: 01/21/2010)
408 NOTICE by Tracy Miller of Amended Rule 30(b)(6) Deposition (Shalf, Sarah) Modified on 1/25/2010 pleading is part of discovery (ca). (Entered: 01/22/2010)
409 Minute Entry for proceedings held before Magistrate Judge James E. Graham: Motion Hearing held on 1/25/2010 re 370 MOTION to Compel Plaintiff to Provide Responses to Interrogatories filed by Joseph Paris, 372 MOTION to Compel Plaintiff to Provide Responses to Interrogatories filed by Georgia State Prison, Augusta State Medical Prison, The Georgia Department of Corrections, 365 MOTION to Compel Plaintiff to Provide Responses to Interrogatories filed by Dennis Brown, 369 MOTION to Compel Plaintiff to Provide Responses to Interrogatories filed by Victor L. Walker, 371 MOTION to Compel Plaintiff to Provide Responses to Interrogatories filed by Wayne Garner, 367 MOTION to Compel Plaintiff to Provide Responses to Interrogatories filed by Carolyn Mailloux, 368 MOTION to Compel Plaintiff to Provide Responses to Interrogatories filed by Lisa Waters Johnson, 392 Supplemental MOTION for Protective Order and MOTION to Quash and Brief in Support filed by Lisa Waters Johnson, The State of Georgia, James Donald, Ronald King, Georgia

Case: 6:98-cv-109 As of: 06/18/2019 01:24 PM EDT 41 of 53

01/29/2010
02/02/2010
02/02/2010 02/02/2010 02/02/2010 02/02/2010 02/11/2010 02/17/2010 02/19/2010 02/19/2010
02/25/2010

State Prison, The Georgia Department of Corrections, Dennis Brown, Wayne Garner, Steve Roberts, Johnny Sikes, Victor L. Walker, Augusta State Medical Prison, Carolyn Mailloux, Joseph Paris, Hugh Smith, 366 MOTION to Compel Plaintiff to Provide Responses to Interrogatories filed by Steve Roberts, 382 MOTION for Protective Order and MOTION to Quash and Brief in Support filed by Lisa Waters Johnson, The State of Georgia, James Donald, Georgia State Prison, The Georgia Department of Corrections, Dennis Brown, Steve Roberts, Johnny Sikes, Victor L. Walker, Augusta State Medical Prison, Carolyn Mailloux, Joseph Paris, Hugh Smith, 364 MOTION to Compel Plaintiff to Provide Responses to Interrogatories filed by Hugh Smith. (Court Reporter Joan Mobley.) (rra) (Entered: 01/26/2010)
410 ORDER dismissing without prejudice 364 Motion to Compel; 365 Motion to Compel; 366 Motion to Compel; 367 Motion to Compel; 368 Motion to Compel; 369 Motion to Compel; 370 Motion to Compel; 371 Motion to Compel; 372 Motion to Compel; 392 Motion ; 392 Motion to Quash; either party may file a motion requesting the Court's intervention on unresolved discovery issues after counsel have made a good faith effort to resolve those issues. Signed by Magistrate Judge James E. Graham on 1/29/2010. (ca) (Entered: 01/29/2010)
411 NOTICE by Dennis Brown, T.J. Conley, Dane Dasher, Don Jarriel, Lisa Waters Johnson, Tommy Jones, Ronald King, Tom King, Sharon Lewis, Carolyn Mailloux, Brian Owens, Joseph Paris, Steve Roberts, Johnny Sikes, Hugh Smith, The Georgia Department of Corrections, Victor L. Walker to serve subpeonas to the Burke County Sheriff's Office, University Hospital, and Burke Medical Center (Attachments: # 1 Subpoenas)(Hirsch, Michelle) Modified on 2/8/2010 to restrict access; discovery is not filed (slt). (Entered: 02/02/2010)
412 NOTICE by Tracy Miller of Service of Subpoenas (Attachments: # 1 Subpoena − Fields, # 2 Subpoena − Hall, # 3 Subpoena − Jones, # 4 Subpoena − Nichols, # 5 Subpoena − Suraj, # 6 Subpoena − Upton)(Shalf, Sarah) Modified on 2/8/2010 to restrict access; discovery is not filed (slt). (Entered: 02/02/2010)
413 NOTICE by Tracy Miller of Amended Deposition of Dennis Brown (Shalf, Sarah) Modified on 2/8/2010 to restrict access; discovery is not filed (slt). (Entered: 02/02/2010)
414 NOTICE by Tracy Miller of Amended Deposition of Victor Walker (Shalf, Sarah) Modified on 2/8/2010 to restrict acces; discovery is not filed (slt). (Entered: 02/02/2010)
415 NOTICE by Tracy Miller of Amended Deposition of Dr. Joseph Paris (Shalf, Sarah) Modified on 2/8/2010 to restrict access; discovery is not filed (slt). (Entered: 02/02/2010)
416 Third MOTION to Amend/Correct 198 Amended Complaint, 2 Complaint and Memorandum of Law in Support by Tracy Miller. Responses due by 3/1/2010 (Shalf, Sarah) (Entered: 02/11/2010)
417 NOTICE by Tracy Miller of Amended Notice To Take Videotaped Deposition of Johnny Sikes (Shalf, Sarah) Modified on 2/18/2010 to restrict access; discovery documents are not filed (slt). (Entered: 02/17/2010)
Minute Entry for proceedings held before Magistrate Judge James E. Graham: Telephone Conference held on 2/19/2010. (rra) (Entered: 02/19/2010)
418 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Motion Hearing Proceedings held on January 25, 2010, before Judge James E. Graham. Court Reporter/Transcriber C. Joan Mobley, Telephone number 912−280−1348. Tape Number: FTR. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. (Transcript Redaction Policy Issued or Click here to view Transcript Redaction Policy) Redaction Request due 3/12/2010. Redacted Transcript Deadline set for 3/22/2010. Release of Transcript Restriction set for 5/20/2010. (Mobley, Joan) (Entered: 02/19/2010)
419 NOTICE by Tracy Miller of Deposition of Commissioner Brian Owens (Shalf, Sarah) Modified on 2/26/2010 to restrict access; discovery pleadings are not filed (slt).

Case: 6:98-cv-109 As of: 06/18/2019 01:24 PM EDT 42 of 53

03/01/2010 03/01/2010
03/09/2010 03/10/2010
03/29/2010
03/31/2010 04/14/2010 04/14/2010 04/20/2010 04/28/2010 04/29/2010 04/30/2010 05/18/2010 05/19/2010

(Entered: 02/25/2010)
420 NOTICE by Tracy Miller of Service of Subpoenas (Attachments: # 1 Subpoena − Wilkes, # 2 Subpoena − Young)(Shalf, Sarah) Modified on 3/2/2010**pleading is not filed with the court**(ca). (Entered: 03/01/2010)
421 RESPONSE to Motion re 416 Third MOTION to Amend/Correct 198 Amended Complaint, 2 Complaint and Memorandum of Law in Support filed by Dennis Brown, T.J. Conley, Dane Dasher, Don Jarriel, Lisa Waters Johnson, Tommy Jones, Tom King, Sharon Lewis, Carolyn Mailloux, Brian Owens, Joseph Paris, Steve Roberts, Johnny Sikes, Hugh Smith, The Georgia Department of Corrections, Victor L. Walker. (Hirsch, Michelle) (Entered: 03/01/2010)
422 NOTICE by Tracy Miller of Service of Subpoena (Attachments: # 1 Subpoena − Gail A. Grieser)(Shalf, Sarah) Modified on 3/10/2010**pleading is not filed with the court**(ca). (Entered: 03/09/2010)
423 ORDER granting in part leave to amend and supplement complaint and denying in part for reasons set forth in Defts' Response 416 Motion to Amend/Correct and Supplement Complaint; should Plft wish to pursue any new claims (i.e., those claims not asserted in his 2006 Amended Complaint), he may do so by filing a cause of action with the appropriate court, and that court will conduct the requisite review of his claims. Signed by Magistrate Judge James E. Graham on 3/10/2010. (order was mailed to Plft at Augusta State Medical Prison) (ca) (Entered: 03/10/2010)
424 CONSENT SCHEDULING ORDER: Motions (excluding motions in limine) due by 5/21/2010. Pretrial Order due by 8/23/2010. Defts consent to Plft Miller withdrawing his expert Brie Williams, M.D., and identifying Robert Greifinger, M.D. as a testifying expert instead. Deft will serve any rebuttal expert report no later than 4/16/10. Dr. Greifinger will be deposed no later than 4/23/10. Dr. Milton will be deposed, if necessary, no later than 5/7/10. Defts' disclosure of defenses in response to Plft's claims will be served no later than 5/21/10. *The remainder of the provisions of the 11/12/09 scheduling order shall remain in effect*. Signed by Magistrate Judge James E. Graham on 3/29/2010. (ca) (Entered: 03/29/2010)
425 ORDER dismissing 377 Motion for an order directing that this case be referred to the U.S. Attorney's office for a criminal investigation. Signed by Magistrate Judge James E. Graham on 3/31/2010. (csr) (Entered: 03/31/2010)
426 NOTICE of Hearing: Pretrial Conference set for 8/24/2010 02:00 PM in Statesboro − 1st Floor Courtroom before Magistrate Judge James E. Graham. (rra) (Entered: 04/14/2010)
427 NOTICE of Hearing: Jury Selection/Trial set for 8/30/2010 09:00 AM in Statesboro − 1st Floor Courtroom before Magistrate Judge James E. Graham. (rra) (Additional attachment(s) added on 4/14/2010: # 1 Trial Calendar) (rra). (Entered: 04/14/2010)
Set Deadlines/Hearings: see Court Order #73 docketed in CV105−153. Show Cause Response due by 4/30/2010. (JRG) (Entered: 04/20/2010)
428 RESPONSE TO ORDER TO SHOW CAUSE by Tracy Miller. (Shalf, Sarah) (Entered: 04/28/2010)
429 RESPONSE by T.J. Conley, Sharon Lewis, Brian Owens, The Georgia Department of Corrections, Victor L. Walker. (Orland, Devon) (Entered: 04/29/2010)
430 RESPONSE TO ORDER TO SHOW CAUSE by Tracy Miller. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Shalf, Sarah) (Entered: 04/30/2010)
431 MOTION for Leave to Appear Pro Hac Vice John H. Rains IV Receipt Number 113J−836008, Fee Amount $200, by Tracy Miller. Responses due by 6/4/2010 (Bramlett, Jeffrey) (Entered: 05/18/2010)
432 ORDER granting 431 Motion for Leave to Appear Pro Hac Vice for Attorney John H. Rains IV. Signed by Magistrate Judge James E. Graham on 5/19/2010. (csr) (Entered: 05/19/2010)

Case: 6:98-cv-109 As of: 06/18/2019 01:24 PM EDT 43 of 53

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

433 Consent MOTION for Leave to File Memorandum of Law as Amicus Curiae, Consent MOTION to Intervene as Amicus Curiae by United States Of America. Responses due by 7/6/2010 (Lynch, William) (Entered: 06/18/2010)
434 MOTION for Partial Summary Judgment and Incorporated Memorandum in Support Thereof by Tracy Miller. Responses due by 7/12/2010 (Shalf, Sarah) (Entered: 06/18/2010)
435 Statement of Material Facts (Undisputed). (Attachments: # 1 Index to Exhibits, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Exhibit 8, # 10 Exhibit 9, # 11 Exhibit 10)(Shalf, Sarah) (Entered: 06/18/2010)
436 NOTICE of Filing exhibits 11−20 by Tracy Miller re 435 Statement of Material Facts, (Attachments: # 1 Exhibit 11, # 2 Exhibit 12, # 3 Exhibit 13, # 4 Exhibit 14, # 5 Exhibit 15, # 6 Exhibit 16, # 7 Exhibit 17, # 8 Exhibit 18, # 9 Exhibit 19, # 10 Exhibit 20)(Shalf, Sarah) Modified on 6/22/2010 to add text and linkage (slt). (Entered: 06/18/2010)
437 NOTICE issued re: 434 MOTION for Partial Summary Judgment and Incorporated Memorandum in Support Thereof by Tracy Miller. Responses due by 7/12/2010 (Shalf, Sarah) (wwp) (Entered: 06/18/2010)
438 NOTICE of Filing exhibits 21 to 30 by Tracy Miller re 435 Statement of Material Facts, (Attachments: # 1 Exhibit 21, # 2 Exhibit 22, # 3 Exhibit 23, # 4 Exhibit 24, # 5 Exhibit 25, # 6 Exhibit 26, # 7 Exhibit 27, # 8 Exhibit 28, # 9 Exhibit 29, # 10 Exhibit 30)(Shalf, Sarah) Modified on 6/23/2010 to add text (slt). (Entered: 06/18/2010)
439 NOTICE of Filing exhibits 31 to 40 by Tracy Miller re 435 Statement of Material Facts, (Attachments: # 1 Exhibit 31, # 2 Exhibit 32, # 3 Exhibit 33, # 4 Exhibit 34, # 5 Exhibit 35, Part 1, # 6 Exhibit 35, Part 2, # 7 Exhibit 35, Part 3, # 8 Exhibit 36, # 9 Exhibit 37, # 10 Exhibit 38, # 11 Exhibit 39, # 12 Exhibit 40)(Shalf, Sarah) Modified on 6/23/2010 to add text (slt) (Entered: 06/18/2010)
440 NOTICE of Filing exhibits 41 to 56 by Tracy Miller re 435 Statement of Material Facts, (Attachments: # 1 Exhibit 41, # 2 Exhibit 42, # 3 Exhibit 43, # 4 Exhibit 44, # 5 Exhibit 45, # 6 Exhibit 46, # 7 Exhibit 47, # 8 Exhibit 48, # 9 Exhibit 49, # 10 Exhibit 50, # 11 Exhibit 51, # 12 Exhibit 52, # 13 Exhibit 53, # 14 Exhibit 54, # 15 Exhibit 55, # 16 Exhibit 56)(Shalf, Sarah) Modified on 6/23/2010 to add text (slt). (Entered: 06/18/2010)
441 NOTICE of Filing exhibits 57 to 66 by Tracy Miller re 435 Statement of Material Facts, (Attachments: # 1 Exhibit 57, # 2 Exhibit 58, # 3 Exhibit 59, # 4 Exhibit 60, # 5 Exhibit 61, Part 1, # 6 Exhibit 61, Part 2, # 7 Exhibit 62, # 8 Exhibit 63, # 9 Exhibit 64, # 10 Exhibit 65, # 11 Exhibit 66)(Shalf, Sarah) Modified on 6/23/2010 to add text (slt). (Entered: 06/18/2010)
442 NOTICE of Filing by Tracy Miller re 435 Statement of Material Facts, Manually with Restrictions (Shalf, Sarah) (Entered: 06/18/2010)
443 NOTICE of Filing by Tracy Miller Original Depositions (Shalf, Sarah) (Entered: 06/18/2010)
444 NOTICE by Tracy Miller Plaintiff's Request to File Original Depositions (Shalf, Sarah) (Entered: 06/18/2010)
445 MOTION to Change Venue by Tracy Miller. Responses due by 7/8/2010 (Rains, John) (Entered: 06/21/2010)
446 ORDER granting 433 Motion for Leave to Participate as Amicus Curiae filed by the United States. Signed by Magistrate Judge James E. Graham on 6/21/2010. (csr) (Entered: 06/21/2010)
447 Brief in Support re 433 Consent MOTION for Leave to File Memorandum of Law as Amicus CuriaeConsent MOTION to Intervene as Amicus Curiae filed by United States Of America. (Attachments: # 1 Exhibit Exhibit A, ADA/Section 504 Design Guide: Accessible Cells in Correctional Facilities)(Lynch, William) (Entered: 06/21/2010)

Case: 6:98-cv-109 As of: 06/18/2019 01:24 PM EDT 44 of 53

06/21/2010 06/21/2010 06/21/2010
06/22/2010 06/22/2010 06/22/2010
06/22/2010 06/22/2010
06/22/2010 06/22/2010 06/22/2010

448 EXHIBITS IN SUPPORT OF PLAINTIFF'S STATEMENT OF UNDISPUTED MATERIAL FACTS by Tracy Miller., (Document Sealed). (Attachments: Exhibits − Continuation)(csr) (Entered: 06/22/2010)
450 DEPOSITION of Billy Nichols, M.D. taken on 2/4/2010, (Document Sealed) by Tracy Miller. (Attachments: (1) Part 2 of 3, (2) Part 3 of 3, (3) Exhibit 1, (4) Exhibit 2, (5) Exhibit 3, (6) Exhibit 4)(csr) (Entered: 06/22/2010)
452 DEPOSITION of Samuel B. Milton, III, M.D. taken on 3/12/09, (Document Sealed) by Tracy Miller. (Attachments: # 1 part 2, # 2 part 3, # 3 Exhibit 1 part 1, # 4 Exhibit 1 part 2, # 5 Exhibit 1 part 2, # 6 Exhibit 2, # 7 Exhibit 3, # 8 Exhibit 4 part 1, # 9 Exhibit 4 part 2, # 10 Exhibit 5 part 1, # 11 Exhibit 5 part 2, # 12 Exhibit 5 part 3, # 13 Exhibit 5 part 4, # 14 Exhibit 5 part 5, # 15 Exhibit 5 part 6, # 16 Exhibit 6, # 17 Exhibit 7 part 1, # 18 Exhibit 7 part 2, # 19 Exhibit 8, # 20 Exhibit 9, # 21 Exhibit 10, # 22 Exhibit 11, # 23 Exhibit 12)(slt) (Entered: 06/22/2010)
449 MOTION for Judgment on the Pleadings by Dennis Brown, T.J. Conley, Dane Dasher, Don Jarriel, Lisa Waters Johnson, Tommy Jones, Tom King, Sharon Lewis, Carolyn Mailloux, Brian Owens, Joseph Paris, Johnny Sikes, Hugh Smith, The Georgia Department of Corrections, Victor L. Walker. Responses due by 7/9/2010 (Attachments: # 1 Briefs)(Hirsch, Michelle) (Entered: 06/22/2010)
451 NOTICE of Filing by Dennis Brown, T.J. Conley, Dane Dasher, Don Jarriel, Lisa Waters Johnson, Tommy Jones, Tom King, Sharon Lewis, Carolyn Mailloux, Brian Owens, Joseph Paris, Johnny Sikes, Hugh Smith, The State of Georgia, Victor L. Walker re 449 MOTION for Judgment on the Pleadings EXHIBIT A, part 1 (Attachments: # 1 Exhibit A, part 1)(Hirsch, Michelle) (Entered: 06/22/2010)
453 NOTICE of Filing by Dennis Brown, T.J. Conley, Dane Dasher, Don Jarriel, Lisa Waters Johnson, Tommy Jones, Tom King, Sharon Lewis, Carolyn Mailloux, Brian Owens, Joseph Paris, Steve Roberts, Johnny Sikes, Hugh Smith, The Georgia Department of Corrections, Victor L. Walker re 449 MOTION for Judgment on the Pleadings Exhibit A, part 2, Exhibit B, Exhibit C, Exhibit D (Attachments: # 1 Exhibit A, part 2, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Hirsch, Michelle) (Entered: 06/22/2010)
454 MOTION for Leave to File Excess Pages in Support of Their Motion for Summary Judgment by Dennis Brown, T.J. Conley, Dane Dasher, Don Jarriel, Lisa Waters Johnson, Tommy Jones, Tom King, Sharon Lewis, Carolyn Mailloux, Brian Owens, Joseph Paris, Johnny Sikes, Hugh Smith, The Georgia Department of Corrections, Victor L. Walker. Responses due by 7/9/2010 (Attachments: # 1 Text of Proposed Order)(Hirsch, Michelle) (Entered: 06/22/2010)
455 MOTION for Summary Judgment by Dennis Brown, T.J. Conley, Dane Dasher, Don Jarriel, Lisa Waters Johnson, Tommy Jones, Tom King, Sharon Lewis, Carolyn Mailloux, Brian Owens, Joseph Paris, Johnny Sikes, Hugh Smith, The Georgia Department of Corrections, Victor L. Walker. Responses due by 7/16/2010 (Attachments: # 1 Briefs, # 2 Stmt of Material Fact, # 3 List of Exhibits in Support of Defendants' Motion for Summary Judgment, # 4 Exhibits in Support of Motion for Summary Judgment)(Hirsch, Michelle) (Entered: 06/22/2010)
456 MOTION Exclude Testimony of Dr. Robert Greifinger by Dennis Brown, T.J. Conley, Dane Dasher, Don Jarriel, Lisa Waters Johnson, Tommy Jones, Tom King, Sharon Lewis, Carolyn Mailloux, Brian Owens, Joseph Paris, Johnny Sikes, Hugh Smith, The Georgia Department of Corrections, Victor L. Walker. Responses due by 7/9/2010 (Attachments: # 1 Briefs)(Hirsch, Michelle) (Entered: 06/22/2010)
457 MOTION Exclude Testimony of Mark Mazz by Dennis Brown, T.J. Conley, Dane Dasher, Don Jarriel, Lisa Waters Johnson, Tommy Jones, Tom King, Sharon Lewis, Carolyn Mailloux, Brian Owens, Joseph Paris, Johnny Sikes, Hugh Smith, The Georgia Department of Corrections, Victor L. Walker. Responses due by 7/9/2010 (Attachments: # 1 Exhibit 1)(Hirsch, Michelle) (Entered: 06/22/2010)
458 NOTICE by Dennis Brown, T.J. Conley, Dane Dasher, Don Jarriel, Lisa Waters Johnson, Tommy Jones, Tom King, Sharon Lewis, Carolyn Mailloux, Brian Owens, Joseph Paris, Johnny Sikes, Hugh Smith, The Georgia Department of Corrections, Victor L. Walker re 456 MOTION Exclude Testimony of Dr. Robert Greifinger, 455 MOTION for Summary Judgment of Manual Filing (Hirsch, Michelle) (Entered:

Case: 6:98-cv-109 As of: 06/18/2019 01:24 PM EDT 45 of 53

06/23/2010 06/23/2010 06/23/2010 06/23/2010 06/23/2010 06/23/2010
06/23/2010 06/23/2010
06/23/2010 06/23/2010 06/23/2010 06/24/2010

06/22/2010)
MOTIONS REFERRED: 454 MOTION for Leave to File Excess Pages in Support of Their Motion for Summary Judgment (slt) (Entered: 06/23/2010)
459 MEMORANDUM in Support re 455 MOTION for Summary Judgment, (Document Sealed) filed by Augusta State Medical Prison, Dennis Brown, T.J. Conley, Dane Dasher, Don Jarriel, Tommy Jones, Ronald King, Tom King, Sharon Lewis, Brian Owens, Johnny Sikes, The Georgia Department of Corrections, The State of Georgia. Modified on 6/23/2010 to modify restriction (slt). (Entered: 06/23/2010)
460 Statement of Material Facts as to which there exists no genuine issue (Doc 455), (Document Sealed). (wwp) (Entered: 06/23/2010)
461 MEMORANDUM in Support re 456 MOTION Exclude Testimony of Dr. Robert Greifinger, (Document Sealed) filed by Dennis Brown, T.J. Conley, Dane Dasher, Don Jarriel, Tommy Jones, Ronald King, Tom King, Sharon Lewis, Brian Owens, Johnny Sikes, The Georgia Department of Corrections, The State of Georgia. (Attachments: # 1 A, # 2 B, # 3 C, # 4 D 1, # 5 D 2, # 6 E, # 7 F)(bcw) (Entered: 06/23/2010)
462 DEPOSITION of Dr. Randall Atlas taken on January 23, 2009 by Tracy Miller. (Attachments: # 1 Transcript Volume II, Part 1, # 2 Transcript Volume II, Part 2, # 3 Exhibit A, # 4 Exhibit B, # 5 Exhibit C, Part 1, # 6 Exhibit C, Part 2, # 7 Exhibit C, Part 3, # 8 Exhibit D, # 9 Exhibit E, # 10 Exhibit F, # 11 Exhibit G)(Shalf, Sarah) (Entered: 06/23/2010)
463 DEPOSITION of Steven Jones taken on February 18, 2010 by Tracy Miller. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18, # 19 Exhibit 19, # 20 Exhibit 20, # 21 Exhibit 21, # 22 Exhibit 22, # 23 Exhibit 23, # 24 Exhibit 24, # 25 Exhibit 25, # 26 Exhibit 26, # 27 Errata)(Shalf, Sarah) (Entered: 06/23/2010)
464 DEPOSITION of Brian Owens taken on February 26, 2010 by Tracy Miller. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, Part 1, # 5 Exhibit 4, Part 2, # 6 Exhibit 5, # 7 Errata)(Shalf, Sarah) (Entered: 06/23/2010)
465 DEPOSITION of Johnny C. Sikes taken on February 22, 2010 by Tracy Miller. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18, # 19 Exhibit 19, # 20 Exhibit 20, # 21 Exhibit 21, # 22 Exhibit 22, # 23 Errata)(Shalf, Sarah) (Entered: 06/23/2010)
466 DEPOSITION of Victor Walker taken on February 10, 2010 by Tracy Miller. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Errata)(Shalf, Sarah) (Entered: 06/23/2010)
467 DEPOSITION of Scott Wilkes taken on March 2, 2010 by Tracy Miller. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Errata)(Shalf, Sarah) (Entered: 06/23/2010)
468 DEPOSITION of Dianne Young taken on March 3, 2010 by Tracy Miller. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Errata)(Shalf, Sarah) (Entered: 06/23/2010)
469 NOTICE issued re: 455 MOTION for Summary Judgment by Dennis Brown, T.J. Conley, Dane Dasher, Don Jarriel, Lisa Waters Johnson, Tommy Jones, Tom King, Sharon Lewis, Carolyn Mailloux, Brian Owens, Joseph Paris, Johnny Sikes, Hugh Smith, The Georgia Department of Corrections, Victor L. Walker. Responses due by 7/16/2010 (Attachments: # 1 Briefs, # 2 Stmt of Material Fact, # 3 List of Exhibits in Support of Defendants' Motion for Summary Judgment, # 4 Exhibits in Support of Motion for Summary Judgment)(Hirsch, Michelle) (wwp) (Entered: 06/24/2010)

Case: 6:98-cv-109 As of: 06/18/2019 01:24 PM EDT 46 of 53

06/24/2010 06/28/2010
07/01/2010 07/02/2010 07/02/2010 07/06/2010 07/06/2010 07/06/2010
07/08/2010 07/08/2010 07/08/2010 07/08/2010
07/08/2010

470 RESPONSE in Opposition re 454 MOTION for Leave to File Excess Pages in Support of Their Motion for Summary Judgment, 455 MOTION for Summary Judgment and Motion to Strike filed by Tracy Miller. (Shalf, Sarah) (Entered: 06/24/2010)
471 REPLY to Response to Motion re 454 MOTION for Leave to File Excess Pages in Support of Their Motion for Summary Judgment filed by Dennis Brown, T.J. Conley, Dane Dasher, Don Jarriel, Lisa Waters Johnson, Tommy Jones, Tom King, Sharon Lewis, Carolyn Mailloux, Brian Owens, Joseph Paris, Johnny Sikes, Hugh Smith, The Georgia Department of Corrections, Victor L. Walker. (Hirsch, Michelle) (Entered: 06/28/2010)
472 STIPULATION of Dismissal of Individual Capacity Claims by Tracy Miller. (Shalf, Sarah) (Entered: 07/01/2010)
473 NOTICE of Appearance by Sasha M. Samberg−Champion on behalf of United States Of America (Samberg−Champion, Sasha) (Entered: 07/02/2010)
474 First MOTION to Substitute Attorney Dirk C. Phillips by United States Of America. Responses due by 7/19/2010 (Attachments: # 1 Text of Proposed Order)(Samberg−Champion, Sasha) (Entered: 07/02/2010)
475 First MOTION for Extension of Time to File Response/Reply to Motion for Judgment on the Pleadings and Motion for Summary Judgment by United States Of America. Responses due by 7/23/2010 (Attachments: # 1 Text of Proposed Order)(Samberg−Champion, Sasha) (Entered: 07/06/2010)
476 ORDER granting 474 Motion to Substitute Attorney. Attorney Dirk Phillips terminated. Signed by Magistrate Judge James E. Graham on 7/6/2010. (csr) (Entered: 07/06/2010)
477 ORDER Approving 472 Stipulation filed by Tracy Miller; the parties stipulate and agree that Defendants Smith, Sikes, Walker, Paris, Bozeman, Mailloux, and Brown sued in their individual capacities are dismissed from this action with prejudice. The claims brought under the ADA and Rehabilitation Act for damages against the Georgia Department of Corrections, as well as all claims for injunctive relief against the Department of Corrections and all Injunctive Relief Defendants (including, but not limited to, injunctive relief claims against the Warden of ASMP), remain pending. Signed by Magistrate Judge James E. Graham on 7/6/2010. (csr) (Entered: 07/06/2010)
478 RESPONSE in Opposition re 475 First MOTION for Extension of Time to File Response/Reply to Motion for Judgment on the Pleadings and Motion for Summary Judgment filed by Dennis Brown, T.J. Conley, Dane Dasher, Don Jarriel, Tommy Jones, Tom King, Sharon Lewis, Brian Owens, The Georgia Department of Corrections. (Hirsch, Michelle) (Entered: 07/08/2010)
479 RESPONSE in Opposition re 445 MOTION to Change Venue filed by Dennis Brown, T.J. Conley, Dane Dasher, Don Jarriel, Tommy Jones, Tom King, Sharon Lewis, Brian Owens, The Georgia Department of Corrections. (Hirsch, Michelle) (Entered: 07/08/2010)
480 RESPONSE in Opposition re 475 First MOTION for Extension of Time to File Response/Reply to Motion for Judgment on the Pleadings and Motion for Summary Judgment (corrected filing) filed by Dennis Brown, T.J. Conley, Dane Dasher, Don Jarriel, Tommy Jones, Tom King, Sharon Lewis, Brian Owens, The Georgia Department of Corrections. (Hirsch, Michelle) (Entered: 07/08/2010)
481 DEPOSITION of Mark J. Mazz, AIA taken on March 20, 2009 by Tracy Miller. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, Part 1 of 6, # 3 Exhibit 2, Part 2 of 6, # 4 Exhibit 2, Part 3 of 6, # 5 Exhibit 2, Part 4 of 6, # 6 Exhibit 2, Part 5 of 6, # 7 Exhibit 2, Part 6 of 6, # 8 Exhibit 3, Part 1 of 2, # 9 Exhibit 3, Part 2 of 2, # 10 Exhibit 4, Part 1 of 4, # 11 Exhibit 4, Part 2 of 4, # 12 Exhibit 4, Part 3 of 4, # 13 Exhibit 4, Part 4 of 4)(Shalf, Sarah) (Entered: 07/08/2010)
482 ORDER granting in part 475 Motion for Extension of Time to File Response to 449 MOTION for Judgment on the Pleadings; 455 MOTION for Summary Judgment. Responses due by 7/21/2010. Signed by Magistrate Judge James E. Graham on 7/8/2010. (csr) (Entered: 07/08/2010)

Case: 6:98-cv-109 As of: 06/18/2019 01:24 PM EDT 47 of 53

07/08/2010 07/09/2010 07/09/2010 07/09/2010
07/09/2010 07/12/2010
07/12/2010
07/12/2010 07/13/2010 07/13/2010 07/14/2010 07/14/2010
07/15/2010 07/16/2010 07/16/2010 07/16/2010

483 REPLY to Response to Motion re 445 MOTION to Change Venue filed by Tracy Miller. (Rains, John) (Entered: 07/08/2010)
484 RESPONSE in Opposition re 456 MOTION Exclude Testimony of Dr. Robert Greifinger filed by Tracy Miller. (Attachments: # 1 Exhibit A)(Rains, John) (Entered: 07/09/2010)
485 RESPONSE in Opposition re 457 MOTION Exclude Testimony of Mark Mazz filed by Tracy Miller. (Attachments: # 1 Exhibit A)(Shalf, Sarah) (Entered: 07/09/2010)
486 RESPONSE in Opposition re 434 MOTION for Partial Summary Judgment and Incorporated Memorandum in Support Thereof filed by Dennis Brown, T.J. Conley, Dane Dasher, Don Jarriel, Tommy Jones, Tom King, Sharon Lewis, Brian Owens, The Georgia Department of Corrections. (Attachments: # 1 Exhibit A, # 2 Stmt of Material Fact)(Hirsch, Michelle) (Entered: 07/09/2010)
487 RESPONSE in Opposition re 449 MOTION for Judgment on the Pleadings filed by Tracy Miller. (Shalf, Sarah) (Entered: 07/09/2010)
488 NOTICE by Dennis Brown, T.J. Conley, Dane Dasher, Don Jarriel, Tommy Jones, Tom King, Sharon Lewis, Brian Owens, The Georgia Department of Corrections re 444 Notice (Other) of Manual Filing of Depositions (Attachments: # 1 Cover sheet Apple Deposition, # 2 Cover sheet Mazz Deposition)(Hirsch, Michelle) (Entered: 07/12/2010)
489 NOTICE of Intent to file Reply Briefs in Support of Motions by Dennis Brown, T.J. Conley, Dane Dasher, Don Jarriel, Tommy Jones, Tom King, Sharon Lewis, Brian Owens, The Georgia Department of Corrections re 449 MOTION for Judgment on the Pleadings, 456 MOTION Exclude Testimony of Dr. Robert Greifinger, 457 MOTION Exclude Testimony of Mark Mazz (Hirsch, Michelle) (Entered: 07/12/2010)
490 ORDER denying 445 Motion to Transfer Venue for Trial. Signed by Magistrate Judge James E. Graham on 7/12/2010. (csr) (Entered: 07/12/2010)
491 NOTICE of Hearing on Motion 456 MOTION Exclude Testimony of Dr. Robert Greifinger, 457 MOTION Exclude Testimony of Mark Mazz : Motion Hearing set for 7/26/2010 10:00 AM in Statesboro − 1st Floor Hearing before Magistrate Judge James E. Graham. (rra) (Entered: 07/13/2010)
492 ORDER granting 454 Motion for Leave to File Excess Pages for their brief of 73 pages in support of their Motion for Summary Judgment. Signed by Magistrate Judge James E. Graham on 7/13/2010. (csr) (Entered: 07/13/2010)
493 MOTION for Leave to File Excess Pages (Renewed) by Tracy Miller. Responses due by 8/2/2010 (Attachments: # 1 Exhibit A − Proposed Order, # 2 Exhibit B)(Shalf, Sarah) (Entered: 07/14/2010)
494 DEPOSITION of David F. Apple, JR., M.D., taken on February 3, 2009, (Document Sealed) by Dennis Brown, T.J. Conley, Dane Dasher, Wayne Garner, Don Jarriel, Tommy Jones, Tom King, Sharon Lewis, Brian Owens, Johnny Sikes, The Georgia Department of Corrections, The State of Georgia. (Attachments: (1) Part 2 of 3, (2) Part 3 of 3)(csr) (Entered: 07/14/2010)
495 ORDER granting 493 Motion for Leave to File Excess Page limit with respect to their Motion for Summary Judgment to 73 pages. Signed by Magistrate Judge James E. Graham on 7/15/2010. (csr) (Entered: 07/15/2010)
496 DEPOSITION of Shevondah Fields taken on February 19, 2010 by Tracy Miller. (Attachments: (1) Exhibit A, (2) Exhibit B, (3) Exhibit C, (4) Exhibit D, (5) Exhibit)(Shalf, Sarah) Text Modified on 7/20/2010 (csr). (Entered: 07/16/2010)
497 DEPOSITION of Dennis Brown taken on February 4, 2010 by Tracy Miller. (Attachments: (1) Exhibit 1, (2) Exhibit 2, (3) Exhibit 3, (4) Exhibit 4, (5) Exhibit 5, (6) Exhibit) (Shalf, Sarah) Text Modified on 7/20/2010 (csr). (Entered: 07/16/2010)
498 DEPOSITION of James E. Donald, Jr. taken on July 20, 2009 by Tracy Miller.(Shalf, Sarah) (Entered: 07/16/2010)

Case: 6:98-cv-109 As of: 06/18/2019 01:24 PM EDT 48 of 53

07/16/2010 07/16/2010 07/16/2010 07/16/2010 07/16/2010 07/16/2010 07/16/2010
07/16/2010 07/17/2010 07/17/2010
07/19/2010
07/19/2010 07/20/2010 07/21/2010

499 DEPOSITION of Tracy Miller, Volume I, taken on January 16, 2009 by Tracy Miller. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 2B, # 4 Exhibit 3, # 5 Exhibit 12, Part 1, # 6 Exhibit 12, Part 2)(Shalf, Sarah) (Entered: 07/16/2010)
500 DEPOSITION of Tracy Miller, Volume II, taken on March 6, 2009 by Tracy Miller. (Attachments: # 1 Exhibit 1)(Shalf, Sarah) (Entered: 07/16/2010)
501 DEPOSITION of Joseph Paris, M.D. taken on February 18, 2010 by Tracy Miller. (Attachments: (1) Exhibit 1, (2) Exhibit 2, (3) Exhibit 3, (4) Exhibit 4, (5) Exhibit 5, (6) Exhibit 6, (7) Exhibit 7, (8) Exhibit 8, (9) Exhibit (Shalf, Sarah) Text Modified on 7/20/2010 (csr). (Entered: 07/16/2010)
502 DEPOSITION of Ronald Whitaker taken on June 4, 2009 by Tracy Miller.(Shalf, Sarah) (Entered: 07/16/2010)
503 NOTICE of Filing by Tracy Miller re 501 Deposition, 499 Deposition Manually with Restrictions (Shalf, Sarah) (Entered: 07/16/2010)
504 NOTICE of Intent to File Reply Brief by Tracy Miller re 434 MOTION for Partial Summary Judgment and Incorporated Memorandum in Support Thereof (Shalf, Sarah) (Entered: 07/16/2010)
505 DEPOSITION of Edward R. Bailey, M.D., taken on March 3, 2010 by Tracy Miller. (Attachments: (1) Exhibit 1, (2) Exhibit 2, (3) Exhibit 3, (4) Exhibit 4, (5) Exhibit 5, (6) Exhibit 6, (7) Exhibit 7, (8) Exhibit 8, (9) Exhibit 9, (10) Exhibit 10, (11) Exhibit 11, (12) Exhibit 12, (13) Exhibit 13, (14) Exhibit 14, (15) Exhibit 15, (16) Exhibit 16, (17) Exhibit 17, (18) Exhibit 18, (19) Exhibit 19, (20) Exhibit 20, (21) Exhibit 21, (22) Exhibit)(Shalf, Sarah) Text Modified on 7/20/2010 (csr). (Entered: 07/16/2010)
506 RESPONSE to Statement of Material Facts re: 455 MOTION for Summary Judgment by Tracy Miller. (Shalf, Sarah) Text Modified on 7/20/2010 (csr). (Entered: 07/16/2010)
507 RESPONSE in Opposition re 455 MOTION for Summary Judgment filed by Tracy Miller. (Shalf, Sarah) (Entered: 07/17/2010)
508 NOTICE of Filing by Tracy Miller re 507 Response in Opposition to Motion, 506 Statement of Material Facts (Attachments: # 1 Exhibit A, # 2 Exhibit B−1, # 3 Exhibit B−2, # 4 Exhibit B−3, # 5 Exhibit B−4, # 6 Exhibit B−5, # 7 Exhibit B−6, # 8 Exhibit B−7, # 9 Exhibit B−8, # 10 Exhibit B−9, # 11 Exhibit B−10, # 12 Exhibit B−11, # 13 Exhibit B−12, # 14 Exhibit B−13, # 15 Exhibit B−14, # 16 Exhibit B−15, # 17 Exhibit B−16, # 18 Exhibit B−17, # 19 Exhibit B−18, # 20 Exhibit B−19, # 21 Exhibit B−20, # 22 Exhibit B−21, # 23 Exhibit C, # 24 Exhibit D−1, # 25 Exhibit D−2, # 26 Exhibit E, # 27 Exhibit F, # 28 Exhibit G, # 29 Exhibit H, # 30 Exhibit I, # 31 Exhibit J, # 32 Exhibit K, # 33 Exhibit L, # 34 Exhibit M, # 35 Exhibit N, # 36 Exhibit O, # 37 Exhibit P, # 38 Exhibit Q, # 39 Exhibit R)(Rains, John) (Entered: 07/17/2010)
509 EXHIBITS TO DEPOSITIONS FILED IN SUPPORT OF PLAINTIFF'S OPPOSITION TO DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (Document Sealed). (Attachments: (1) Exhibit 2, (2) Exhibit 3−1, (3) Exhibit 3−2, (4) Exhibit 3−3, (5) Exhibit 3−4, (6) Exhibit 3−5, (7) Exhibit 3−6, (8) Exhibit 3−7, (9) Exhibit 3−8, (10) Exhibit 4, (11) Exhibit 5)(csr) (Entered: 07/19/2010)
510 AMENDED NOTICE. Motion Hearing that is set for 7/26/2010,at 10:00 a.m., is hereby RESCHEDULED for 02:00 PM in Statesboro − 1st Floor Grand Jury Room before Magistrate Judge James E. Graham. (rra) (Entered: 07/19/2010)
511 MOTION for Use of Electronic Equipment re 510 Notice of Hearing on Motion by Tracy Miller. Responses due by 8/6/2010 (Attachments: # 1 Exhibit A − Proposed Order)(Shalf, Sarah) (Entered: 07/20/2010)
512 ORDER granting 511 Motion For Use of Electronic Equipment during the hearing before this Court on Monday, July 26, 2010 at 2:00 p.m. Equipment may be brought to the Courthouse prior to the hearing and will be subject to the customary inspection of all articles entering the courthouse. Signed by Magistrate Judge James E. Graham on 7/21/2010. (csr) (Entered: 07/21/2010)

Case: 6:98-cv-109 As of: 06/18/2019 01:24 PM EDT 49 of 53

07/21/2010 07/22/2010 07/22/2010 07/22/2010 07/22/2010 07/23/2010 07/23/2010 07/26/2010
07/27/2010 07/29/2010
07/29/2010 08/02/2010 08/03/2010

513 MEMORANDUM in Opposition re 449 MOTION for Judgment on the Pleadings, 455 MOTION for Summary Judgment filed by United States Of America. (Samberg−Champion, Sasha) (Entered: 07/21/2010)
514 ORDER directing the Clerk of Court to terminate Defendants Wayne Garner, former Commissioner of the Department of Corrections; Johnny Sikes; former Warden at Georgia State Prison; and the State of Georgia as parties. Signed by Magistrate Judge James E. Graham on 7/22/2010. (csr) (Entered: 07/22/2010)
515 REPLY to Response to Motion re 457 MOTION Exclude Testimony of Mark Mazz filed by Dennis Brown, T.J. Conley, Dane Dasher, Don Jarriel, Tommy Jones, Tom King, Sharon Lewis, Brian Owens, The Georgia Department of Corrections. (Hirsch, Michelle) (Entered: 07/22/2010)
516 REPLY to Response to Motion re 456 MOTION Exclude Testimony of Dr. Robert Greifinger filed by Dennis Brown, T.J. Conley, Dane Dasher, Don Jarriel, Tommy Jones, Tom King, Sharon Lewis, Brian Owens, The Georgia Department of Corrections. (Hirsch, Michelle) (Entered: 07/22/2010)
517 REPLY to Response to Motion re 449 MOTION for Judgment on the Pleadings filed by Dennis Brown, T.J. Conley, Dane Dasher, Don Jarriel, Tommy Jones, Tom King, Sharon Lewis, Brian Owens, The Georgia Department of Corrections. (Hirsch, Michelle) (Entered: 07/22/2010)
518 NOTICE of Filing by Dennis Brown, T.J. Conley, Dane Dasher, Don Jarriel, Tommy Jones, Tom King, Sharon Lewis, Brian Owens, The Georgia Department of Corrections Errata Sheets of Dr. Robert Greifinger (Attachments: # 1 Errata Sheets)(Hirsch, Michelle) (Entered: 07/23/2010)
519 REPLY to Response to Motion re 434 MOTION for Partial Summary Judgment and Incorporated Memorandum in Support Thereof filed by Tracy Miller. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(Shalf, Sarah) (Entered: 07/23/2010)
520 Minute Entry for proceedings held before Magistrate Judge James E. Graham: Motion Hearing held on 7/26/2010 re 456 MOTION Exclude Testimony of Dr. Robert Greifinger filed by Lisa Waters Johnson, Dane Dasher, The Georgia Department of Corrections, Dennis Brown, Brian Owens, Don Jarriel, Tom King, Tommy Jones, Johnny Sikes, Victor L. Walker, Sharon Lewis, Joseph Paris, Carolyn Mailloux, T.J. Conley, Hugh Smith, 457 MOTION Exclude Testimony of Mark Mazz filed by Lisa Waters Johnson, Dane Dasher, The Georgia Department of Corrections, Dennis Brown, Brian Owens, Don Jarriel, Tom King, Tommy Jones, Johnny Sikes, Victor L. Walker, Sharon Lewis, Carolyn Mailloux, Joseph Paris, T.J. Conley, Hugh Smith. Orders forthcoming. (Tape #FTR.) (rra) (Entered: 07/27/2010)
521 NOTICE of Intent to file Reply Brief by Dennis Brown, T.J. Conley, Dane Dasher, Don Jarriel, Tommy Jones, Tom King, Sharon Lewis, Brian Owens, The Georgia Department of Corrections re 455 MOTION for Summary Judgment (Hirsch, Michelle) (Entered: 07/27/2010)
522 ORDER Amending 424 Scheduling Order. The Consolidated Pretrial Order shall be filed on August 16, 2010. Counsel for the parties are directed to confer and engage in good faith efforts to resolve objections to exhibits and deposition testimony. The Court shall be advised at the pretrial hearing as to any remaining objections, if any, to exhibits and deposition testimony. Each Party shall deliver copies of its deposition testimony and documentary evidence, to which objections remain, to the Court at that time. Signed by Magistrate Judge James E. Graham on 7/29/2010. (csr) (Entered: 07/29/2010)
Set/Reset Deadlines: Pretrial Order due by 8/16/2010. (csr) (Entered: 07/29/2010)
523 REPLY to Response to Motion re 455 MOTION for Summary Judgment filed by Dennis Brown, T.J. Conley, Dane Dasher, Don Jarriel, Tommy Jones, Tom King, Sharon Lewis, Brian Owens, The Georgia Department of Corrections. (Hirsch, Michelle) (Entered: 08/02/2010)
524 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Motion to Exclude Testimony Proceedings held on July 26, 2010, before Judge James E. Graham. Court

Case: 6:98-cv-109 As of: 06/18/2019 01:24 PM EDT 50 of 53

08/03/2010 08/03/2010 08/09/2010
08/09/2010 08/09/2010
08/10/2010
08/10/2010 08/16/2010
08/16/2010 08/16/2010 08/20/2010 08/20/2010 09/14/2010
09/14/2010

Reporter/Transcriber C. Joan Mobley, Telephone number 912−280−1348. Tape Number: FTR. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. (Transcript Redaction Policy Issued or Click here to view Transcript Redaction Policy) Redaction Request due 8/24/2010. Redacted Transcript Deadline set for 9/3/2010. Release of Transcript Restriction set for 11/1/2010. (Mobley, Joan) (Entered: 08/03/2010)
525 MOTION in Limine and Supporting Memorandum of Law by Tracy Miller. Responses due by 8/20/2010 (Attachments: # 1 Exhibit A)(Shalf, Sarah) (Entered: 08/03/2010)
526 MOTION in Limine by Dennis Brown, T.J. Conley, Dane Dasher, Don Jarriel, Tommy Jones, Tom King, Sharon Lewis, Brian Owens, The Georgia Department of Corrections. Responses due by 8/20/2010 (Hirsch, Michelle) (Entered: 08/03/2010)
527 ORDER granting in part and denying in part 457 MOTION to Exclude Testimony of Mark Mazz; the portion of Defendants' Motion seeking the exclusion of Mazz's testimony regarding alleged regulatory violations at the Georgia Diagnostic and Classification Prison is GRANTED. However, the remaining portions of Defendants' Motion are DENIED. Signed by Magistrate Judge James E. Graham on 8/9/2010. (csr) (Entered: 08/09/2010)
528 ORDER granting in part and denying in part 456 Motion to Exclude Testimony of Dr. Robert Greifinger. Signed by Magistrate Judge James E. Graham on 8/9/2010. (csr) (Entered: 08/09/2010)
529 ORDER denying and dismissing in part 434 & 455 Motion for Partial Summary Judgment & Motion for Summary Judgment; dismissing 449 Motion for Judgment on the Pleadings. Signed by Magistrate Judge James E. Graham on 8/9/2010. (csr) (Entered: 08/09/2010)
530 RESPONSE to Motion re 525 MOTION in Limine and Supporting Memorandum of Law filed by Dennis Brown, T.J. Conley, Dane Dasher, Don Jarriel, Tommy Jones, Tom King, Sharon Lewis, Brian Owens, The Georgia Department of Corrections. (Hirsch, Michelle) (Entered: 08/10/2010)
531 RESPONSE in Opposition re 526 MOTION in Limine filed by Tracy Miller. (Shalf, Sarah) (Entered: 08/10/2010)
532 Consent MOTION for Extension of Time to File Final Pre−Trial Order by Dennis Brown, T.J. Conley, Dane Dasher, Don Jarriel, Tommy Jones, Tom King, Sharon Lewis, Brian Owens, The Georgia Department of Corrections. Responses due by 9/2/2010 (Attachments: # 1 Text of Proposed Order)(Hirsch, Michelle) (Entered: 08/16/2010)
533 ORDER granting 532 Consent Motion for Extension of Time to File the Final Pre−trial Order; Final Pre−trial Order due up to and through August 20, 2010. Signed by Magistrate Judge James E. Graham on 8/16/2010. (csr) (Entered: 08/16/2010)
Set/Reset Deadlines: Final Pretrial Order due by 8/20/2010. (csr) (Entered: 08/16/2010)
534 AMENDED NOTICE − Pretrial Conference that was set for 8/24/2010, is hereby CANCELLED. (rra) (Entered: 08/20/2010)
535 AMENDED NOTICE − Jury Selection and Trial that is set for 8/30/2010, is hereby CANCELLED. (rra) (Entered: 08/20/2010)
536 Letter from Tracy Miller re: settlement agreement (Attachments: # 1 letter to Sarah Shalf, # 2 envelope) (slt) (Additional attachment(s) added on 9/14/2010: # 3 settlement agreement) (slt). (Additional attachment(s) added on 7/14/2014: # 4 Back of the envelope) (ca). (Entered: 09/14/2010)
537 ORDER directing the Clerk to ADMINISTRATIVELY CLOSE this action; within sixty days of the date this order is entered, the parties may present a dismissal judgment. If the parties fail to file a dismissal judgment as described above, the Court will dismiss the case with prejudice. Signed by Magistrate Judge James E. Graham on 9/14/2010. (csr) (Entered: 09/14/2010)

Case: 6:98-cv-109 As of: 06/18/2019 01:24 PM EDT 51 of 53

09/14/2010 10/01/2010 10/15/2010
10/19/2010
10/21/2010 10/21/2010
11/01/2010 11/02/2010 12/07/2010 05/16/2011 06/01/2011 06/01/2011 06/16/2011
06/23/2011 07/05/2011 12/09/2011 02/19/2013 02/19/2013 03/08/2013

Set/Reset Deadlines: Notice of Compliance due by 11/13/2010 re: 537 Order. (csr) (Entered: 09/14/2010)
538 Letter from Tracy Miller addressed to Judge Graham re: Settlement (csr) (Additional attachment(s) added on 7/17/2014: # 1 Back of the envelope) (ca). (Entered: 10/01/2010)
539 MOTION to Dismiss With Prejudice by Dennis Brown, T.J. Conley, Dane Dasher, Don Jarriel, Tommy Jones, Tom King, Sharon Lewis, Brian Owens, The Georgia Department of Corrections. Responses due by 11/1/2010 (Attachments: # 1 Exhibits A through G, # 2 Exhibits H through L)(Hirsch, Michelle) (Entered: 10/15/2010)
540 MOTION for Protective Order Prohibiting the Disbursement of Settlement Funds and for a Freeze on Plaintiff's Inmate Trust Account by Dennis Brown, T.J. Conley, Dane Dasher, Don Jarriel, Tommy Jones, Tom King, Sharon Lewis, Brian Owens, The Georgia Department of Corrections. Responses due by 11/5/2010 (Hirsch, Michelle) Text Modified on 10/20/2010 (csr). (Entered: 10/19/2010)
541 Letter from Tracy Miller addressed to Judge Graham. (csr) (Additional attachment(s) added on 7/23/2014: # 1 Back of the envelope) (ca). (Entered: 10/21/2010)
542 Cross MOTION to Enforce Settlement Agreement and Terminate Freeze Order in Miller v. Owens, and Opposition to Defendants' Motions re 539 MOTION to Dismiss With Prejudice, 540 MOTION for Protective Order for an Order Prohibiting the Disbursement of Settlement Funds and for a Freeze on Plaintiff's Inmate Trust Account, 538 Letter, 541 Letter by Tracy Miller. Responses due by 11/8/2010 (Shalf, Sarah) (Entered: 10/21/2010)
543 STIPULATION of Dismissal With Prejudice by Tracy Miller. (Shalf, Sarah) (Entered: 11/01/2010)
544 ORDER Approving 543 Stipulation of Dismissal with prejudice filed by Tracy Miller. Signed by Magistrate Judge James E. Graham on 11/2/2010. (csr) (Entered: 11/02/2010)
Filing fee payment received, Amount $150.00, Receipt SAV009668 (dks) (Entered: 01/04/2011)
545 Letter from Tracy Miller. (loh) (Entered: 05/16/2011)
546 MOTION to Reopen Case, MOTION to set aside judgment by Tracy Miller. REFERRED to Judge James E. Graham.(loh). Responses due by June 18, 2011 Modified on 6/7/2011 (loh). (Entered: 06/01/2011)
547 Letter from Tracy Miller addressed to U.S. Magistrate Judge James E. Graham. (csr) (Entered: 06/01/2011)
548 RESPONSE in Opposition re 546 MOTION to Reopen Case filed by Dennis Brown, T.J. Conley, Dane Dasher, Don Jarriel, Tommy Jones, Tom King, Sharon Lewis, Brian Owens, The Georgia Department of Corrections. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Hirsch, Michelle) (Entered: 06/16/2011)
549 ORDER denying 546 Motion to Reopen Case; denying 546 Motion to Set Aside Judgment. Signed by Magistrate Judge James E. Graham on 6/23/2011. (csr) (Entered: 06/23/2011)
550 Reply to 548 Response in Opposition to Motion re: 546 MOTION to Reopen Case filed by Tracy Miller by Tracy Miller. (Attachments: Envelope)(csr) (Entered: 07/05/2011)
Set/Reset Deadlines: Tax costs − 12/26/2011. (slt) (Entered: 12/09/2011)
551 MOTION to Reopen Case filed by Tracy Miller. (Attachments: # 1 Envelope). (csr) (Entered: 02/19/2013)
Set/Reset Deadlines as to 551 MOTION to Reopen Case. Responses due by 3/8/2013. (csr) (Entered: 02/19/2013)
552 NOTICE of Appearance by Karla Brown Dolby on behalf of Dennis Brown, T.J. Conley, Dane Dasher, Don Jarriel, Tommy Jones, Tom King, Sharon Lewis, Brian

Case: 6:98-cv-109 As of: 06/18/2019 01:24 PM EDT 52 of 53

03/08/2013 03/14/2013 03/21/2013 03/21/2013
03/22/2013 03/22/2013
03/28/2013 03/29/2013 04/05/2013 04/12/2013 04/12/2013 04/29/2013 04/29/2013 05/01/2013 05/06/2013 06/24/2013 07/11/2013
07/18/2013

Owens, The Georgia Department of Corrections (Dolby, Karla) (Entered: 03/08/2013)
553 RESPONSE to Motion re 551 MOTION to Reopen Case filed by Dennis Brown, T.J. Conley, Dane Dasher, Don Jarriel, Tommy Jones, Tom King, Sharon Lewis, Brian Owens, The Georgia Department of Corrections. (Dolby, Karla) (Entered: 03/08/2013)
554 ORDER denying 551 Motion to Reopen Case. Signed by Magistrate Judge James E. Graham on 3/14/2013. (csr) (Entered: 03/14/2013)
555 NOTICE OF APPEAL as to 554 Order Denying Motion to Reopen Case filed by Tracy Miller. (Attachment: # 1 Envelope). (csr) (Additional attachment(s) added on 4/22/2015: # 2 Back of the envelope) (ca). (Entered: 03/21/2013)
556 Transmission of Notice of Appeal and Docket Sheet to U.S. Court of Appeals re: 555 Notice of Appeal. Other Appeals: Yes (4− Appeals: 4/20/99, 7/16/2001, 6/12/2002 & 3/21/2013) Judge Appealed: James E. Graham. Court Reporter: Joan Mobley. Fee Paid: No. Pending COA/IFP: No. (csr) (Entered: 03/21/2013)
557 NOTICE OF APPEAL as to 554 Order Denying Motion to Reopen Case filed by Tracy Miller. (Attachment: # 1 Envelope). (csr) (Additional attachment(s) added on 4/22/2015: # 2 Back of the envelope) (ca). (Entered: 03/22/2013)
558 Transmission of Notice of Appeal and Docket Sheet to U.S. Court of Appeals re: 557 Notice of Appeal. Other Appeals: Yes (5− Appeals: 4/20/99, 7/16/2001, 6/12/2002, 3/21/2013 & 3/22/2013. Judge Appealed: James E. Graham. Court Reporter: Joan Mobley. Fee Paid: No. Pending COA/IFP: No. (csr) (Entered: 03/22/2013)
559 Supplement to 557 Notice of Appeal filed by Tracy Miller. (Attachments: # 1 Envelope). (csr) (Entered: 03/28/2013)
560 Appeal Remark USCA Letter to the parties re 555 Notice of Appeal, 557 Notice of Appeal. (bcw) (Entered: 03/29/2013)
561 Mail Returned as Undeliverable − Return to Sender − Refused − Unable to Forward. Eleventh Circuit Transcript Information Form mailed to Appellant. Mail sent to Tracy Miller. (csr) (Entered: 04/05/2013)
USCA Case Number 13−11192 for 557 Notice of Appeal filed by Tracy Miller. (bcw) (Entered: 04/12/2013)
562 ORDER of USCA dismissing Appeal as to 555 Notice of Appeal filed by Tracy Miller, 557 Notice of Appeal filed by Tracy Miller. (bcw) (Entered: 04/12/2013)
563 MOTION for Leave to Appeal in forma pauperis filed by Tracy Miller. (Attachments: # 1 Exhibit, # 2 Envelope). (csr) (Additional attachment(s) added on 4/29/2013: # 3 Exhibit) (csr). (Entered: 04/29/2013)
564 TRANSCRIPT REQUEST by Tracy Miller − All necessary transcript(s) on file; Trial Hearings from Judge James E. Graham. (Attachment: # 1 Envelope). (csr) (Entered: 04/29/2013)
565 COURT REPORTER ACKNOWLEDGMENT re 557 Notice of Appeal. (ca) (Entered: 05/01/2013)
566 ORDER dismissing 563 Motion for Leave to Appeal in forma pauperis. Signed by Magistrate Judge James E. Graham on 5/6/2013. (csr) (Entered: 05/06/2013)
567 MOTION to Reopen Case, and MOTION for Preliminary Injunction filed by Tracy Miller. Responses due by 7/11/2013. (Attachment: # 1 Envelope). (csr) (Entered: 06/24/2013)
568 RESPONSE to Motion re 567 MOTION to Reopen Case MOTION for Preliminary Injunction filed by Dennis Brown, T.J. Conley, Dane Dasher, Don Jarriel, Tommy Jones, Tom King, Sharon Lewis, Brian Owens, The Georgia Department of Corrections. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 2A)(Dolby, Karla) (Entered: 07/11/2013)
569 ORDER denying 567 Motion to Reopen Case; and denying 567 Motion for Preliminary Injunction. Signed by Magistrate Judge James E. Graham on 7/18/2013.

Case: 6:98-cv-109 As of: 06/18/2019 01:24 PM EDT 53 of 53 (csr) (Entered: 07/18/2013)